### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00166- CV

Tony Davis, Ap pellant

v. Wells F argo Bank, N.A., as Trustee for Carr ington Mortgage Loan Trust, Series 2006-N C4 Asset- Backed Pass- Through Cer tificates; Car rington Mortgage Service s, LLC; Juani ta Strickland; Jani e Mucha; A tlantic & P acific For eclosure Service s, LLC;

Malcolm Cisneros; and Will iam G. M alcolm , Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -GN-1 1-0 0331 5, H ONO RAB LE STEP HEN Y ELENOSK Y , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Tony Davis appea ls from a summary judgme nt in his suit alleg i ng wrong ful fore closure a

nd other c laims ag ainst Wells Farg o Ba nk, N.A., as Tr

ustee for Carring ton Mortga g e L oan Trust, Series 2006-NC4 Asset-B acke d Pass-Throug h Certificates; C ar ri ng ton Mortg ag e Service s, L L C; J uanita Strickland; J anie Mucha; Atlantic & Pacific Fo re closure Service s, L L C; Malcol m Cisneros; and Wil liam G. Malcolm (collec tively , the Def endants). We will aff

irm the 1 district court’s judg ment.

BACK GR OUND

The Def end ants ’ unchalleng ed summary -judg ment evidenc e shows that in 2006, Tony Davis boug ht the rea l proper ty at issue and signe d a deed of trust and note in favor of

Davis’s petition named others who wer e never serve d and thus wer e not parties to the suit. 1Networ

k Funding , L .P. in exchang e for a mortg ag e l o an o f $ 5 0 3 , 9 20.00. Davis defa ulted on the note, and his failure to cure the defa ult ultimately resulted in a fore closure sale, at which Wells Fa rg o purcha sed the proper

ty

. Davis sued t h e De fendants alleg ing wrong ful fore closure, fra ud, civil conspirac y , and lack of due proce ss, and seeking a quiet-title decla ration that he is the “true and valid

owner of the prope rty

in question.” Davis also filed a lis pendens notice. The De fenda

nts filed a tra ditional and no-e vidence motion for summary judgme nt, contending that Davis should take nothing on his claims ag ainst them. Davis filed a response to the 2 motion, but no evidenc e, and did not object to any of the Def endants’ summary -judg ment evidenc e. After th e h ea ri n g, the district court signe d an order g ranting summary judgme nt in favor of the Def endants without specif

ying the g rounds for its ruling . This appea l followed.

DISCUSSIO N Davis’s appellate argument s do not specific ally addre ss the Def endants’ motion for summary judgme nt and do not identify any appellate issues. We construe Davis’s arguments as raising an issue challeng ing the basis for the Def endants’ summary judgme nt, i.e., the rig ht to fore close. Wit hin that issue, he contends that: (1) the note was void beca use the deed of trust and 3

The Defendants incorpora ted their summary -judg ment arguments into a motion to 2 expunge the lis pendens. The trial court g rante d the expunction in a separ ate order when it g rante d the Def endants’ summary judgme nt. See Tex. Prop. Code § 12.0071(c)(2 ) (p ro viding that court shall order notice of lis p en d ens expunged if court deter mines that claimant fails to establish by preponde ranc e of e vidence “the pr obable va lidity of the re al prope rty

claim”)

. Be cause the standards for revie wing a summary judgme nt are well es t ab l i s hed and 3 undisputed on appea l, we do n o t re p eat them here

. See, e.g. , Tex. R. Civ. P. 166a(c ), (i); City of Keller v. W

ilson , 168 S.W .3d 802, 827 (Tex. 2005). We usually revie w a tri al court’s summary judgme nt order under the no-evide nce standard first and proce ed to revie w the traditional summary judgme nt. See Ford Motor Co. v. Ridgway , 135 S.W .3 d 5 9 8 , 6 0 0 (Tex

. 2004); see also Tex. R. Civ. P. 166(a) (i). Her e, we addre ss the co u rt ’s ruling on the traditional summary judgme nt first 2note wer e separ ated (which Davis sug g ests was a “bifurc ation” of the secur ity instrument from the

neg otiable instrument); (2) there was no valid lien on the proper ty ; and (3) remova l of the lis pendens ag ainst the prope rty was im proper . I n their t raditional m otion, the Defenda nts attache d evidenc e 4 demonstrating that Wells Fa rg o is the owner and holder of the note and deed of trust and that fore closure w as prope r.

No “bif urcation” of n ote and deed of trust Davis argues that the note was void beca use the deed of trust and note wer e separ ated or “bifur cate d.” This ar g ument appea rs to complain about the a ssignment of the dee d of t rust and note from Ne twork F unding to Ne w Century

.

The Def endants av er re d t hat the assig nment of the deed of trust from Networ k Fun d i n g t o Ne w Century was lost befor e it was rec orded. Howeve r, the assigned note from Networ

k Funding to New Century was provided in the summary -judg ment evidenc e, and the

beca use it is dispositi ve. See Poag v. Flories , 317 S.W .3d 820, 825 (Tex. App.—For t Worth 2010, pet. denied) ; see also Tex. R. App. P. 47.1 (re quiring “wr itten opinion that is as brief as prac ticable,” addre ssing a ll issues that are r aised a nd nece ssary

to final dispositi on). For the first time on appea l, Davis argues th at t h e n ote was a forg ery , the document 4 prese nted for secur itiz ation violated Texas and New York secur ities law, h i s war ranty deed was i n v al i d , d efense counsel made willful misrepre sentations, and the “judg e and prosec utor do not have t h ei r o at h s o f office .” We do not addre ss these arguments beca use a party may not raise on appea l new rea sons why a summary judgme nt should have be en denie d. See Tex. R. App. P . 33.1 (discussing prese rvation of err or); Tex. R. Civ. P

. 1 6 6 a( c) (stating that “[i] ssue not expressly prese nted to the trial cour t by written m otion, answer or other re sponse shall not be consider ed on appea l a s g rounds for reve rsal” and that court rende rs judgme nt on evidenc e “on file at the time of the hear ing, or fil ed t h er eafter and befor e judgme nt with the permission of the court” ); City of Houston v. Clear Creek Basin Auth. , 589 S.W .2d 671, 678-79 (Tex. 1979); see also Mansfield State Bank v. Cohn , 573 S.W .2d 181, 184-85 (Tex. 1978) (noting that pro se litigants must comply with applicable proce dural rules, otherwise they would be g iven unfair advanta g e over litigants repr esente d by

counsel). 3mortg ag e followed the note that it secur ed. See Campbell v. Mortgage Elec. Registration Sys., Inc .,

No. 03-11-00429- CV, 2012 Tex. App. L EXI S 4030, at *11 (Tex. App.—Au s t i n M ay 1 8, 2012, pet. denied) (mem. op.) (“[w]hen a mortg ag e note is transfe rre d, the mortg ag e or deed of trust is also automatically transfe rre d to the note holder” (citing J.W .D., Inc. v. Fede ral Ins. Co. , 806 S. W.2d 327, 329-30 (Tex. App.—Austin 1991, no writ)))

. Thus, there was no “bifurc ation” of the note and deed of trust beca

use when Networ

k Funding assig ned the note to New Century , that assig nment also

serve d to transfe r the de ed of trust to Ne w Century

. See id.

Fur ther, Davis’s deed of trust authorized his lender , Networ k Funding , or “any holder of t he Note who i s entitled to rec ei v e p aym en t u n d er the Note” to invoke t he power of sale in the
event of Davis’s uncure d defa ult. Her e, af

t er a series of transac tions, Wells Fa rg o was a “holder of the Note ” and a s such, had power to f orec lose under the specific terms of Da vis’s deed of

trust. The series of transac tions beg an with Networ k Funding ’s assig nm ent of the note and the deed of trust to New Century Mortg ag e. The Def endants’ unchalleng ed summary -judg ment evidenc e shows that Ne w Century indorsed the note in blank, ef fec tively making the note payable
to its bear er . See Tex. Bus. & Com. Code § 3.205(b) (discussing blank indorsement). New Century filed for bankruptc y . I t sold its servicing b usiness to Carring ton Mortg ag e Service s, L L C, and executed a limit ed power of attorne y appointing Carring ton Mortg ag e as its attorney -in-fa ct and authorizing Carring ton M o rt g ag e to take various actions (including executing deeds of trust/mortga g e note indorsements, executing assig nments of deed of trust/mortga g e documents, and any other action arising in the normal course of servicing ). Carring ton Mortg ag e, as attorney -in-fa ct for New Century , executed an assig nment of the deed of trust “tog ether with the note or notes there in

4descr ibed” to Wells Fa rg o. The note, indorsed in blank, is pay able to its bear er—Wells Fa rg o. Thus, under the deed of

trust, Wells Fa

rg o was a “holder of the note” with the power to forec lose.

Davis’s re m ainin g argum ents

Davis’s arg

uments that “no valid lien exis ts on the proper ty ” and that the lis pendens should not have been expunged are b as ed entirely on his contention that the fore closure was wrong ful. Simi larly , his claims of wrong ful fore closure, fra ud (for inducing him into a “fr audulent mortg ag e”) , civil conspirac y (for a “sham fore closure” ), l ack of due process (seeking return o f hi s orig inal note and deed of trust “bef ore possession of the house can be finalized by Def endants” ), and his r equeste d decla

ration that he is the “true and valid owner of the proper ty in question” complain of allege d defic iencies in the proc ess leadingto forec losure. The Def endants’ summary -judg ment evidenc e neg ates Davis’s al l egations that the mortg ag e was “fr audulent,” that the fore closure was

a “sham , ” t h at the note and deed of trust should be returne d to Davis befor e possession of the house i s final i z ed, and that Davis shoul d be declare d the owner of t he property

. Be cause we have conclude d that the fore closure w as not wrong ful, these r emaining arguments fail.

CONCLUSION We overrule Davis’s issue on a ppeal a nd aff irm the district court’s judg ment.

J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices Pury ear and Goodwin Affir med Filed: August 31, 2015 5