### 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. 03-12-00583- CV

Ke vin B ierwirth, Appellan t

v. BAC Hom e Loans Servicing, LP f/k/a Countryw ide Hom e Loans Servicing, LP, Appellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 277 TH JUDICI AL DISTRICT

NO. 10- 1108 -C27 7, H ONO RAB LE K EN ANDERSON, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

K e v in B ie rwirth, acting pro se, appea ls the order g ranting summary judgme nt in f a v o r of Ba nk of Americ a, N.A., succe ssor in interest by merg er to BA C Home L oans Servicing , L P f/k/a Country wide Home L oans Servicing , L P (B AC), authorizing nonjudicial fore closure of a mortg ag e 1 lien. Bie rwirth asser

ts that th e d i s t ri ct court err ed in g ranting BA C’s motion without requiring 2 prese ntation of the orig inal “we t ink” note. Be cause we conclude that BA C was entitled to summary judgme nt as a matter

of law, w e af

firm the district cour

t’s order

.

This appea l is sty led as ref lected in the notice of appea l and the summary -judg ment order

. 1 Bie rwirth’s pattern of difficulties with fore closures and forc ible detainer s on his rea l-estate 2 proper ties is well documented with this Court. See, e.g. , Bierwirth v. BAC Home Loans Servic ing, L.P. , No. 03-11-00644- CV, 2012 Tex. Ap p . L E XIS 7506 (Tex. App.—Austin Aug

. 30, 2012, no pet.) (mem. op.); Bierwirt h v. T IB-The Indep. Bankers Bank, No. 03-11-00336-CV, 2012 Tex. App. L EXI S 6681 (Tex. App.—Austin Aug

. 1 0 , 2 0 1 2 , n o pet.) (mem. op.); In re Bierwirth , No. 03-12-00488- CV, 2012 Tex. App. L EXI S 6205 (Tex. App.—Aust in J uly 26, 2012, orig

. proce eding ) (mem. op.); see also Bierwirth v . Fede ral Nat’l Mortg. Ass’n a/k/a Fannie Mae , No. 03- 12-00271-CV; Bierwirth v

. Fede ral Nat’l Mortg. Ass’n a/k/a Fannie Mae , No. 03-12-00430- CV.BACK GR OUND Bie rwirth executed a note and deed of trust in 2006 to purchas e re al p roper ty and improvements at 3638 Spring Cany on Trail in Round Rock, Texas. Bier wirth ag ree d to repa

y his loan by executing a promissory note, and he secur ed the note by executing a deed of trust. Both instruments identified Country wide Home L oans, Inc. as the “L ender .” The deed of trust i d en t ified Mortg ag e Electronic Reg istration Sy stems (MERS) as “B enef iciary” and stated that MERS was the nominee for the L ender (Country wid e) and its

succe ssors and assig ns. The deed of trust specifie d that MERS had the rig ht to exercise any or all 3 of t he int ere sts that Bie rwirth gra nt ed in the deed of t rust, including the rig ht to fore close and sell the prope rty

and to take a

ny of the L ender ’s re quired a ctions. M E RS s u b sequently assig ned Bie rwirth’s note and deed of trust to BA C and rec ord e d the assig nment in the Wil liamson County rea l pr operty rec ords. The assig nment identified MERS (“a s nominee for L ender and L ender [’] s succe sso rs and assig ns”) as the assig nor and BA C as the assig nee. See Bierwirth v. BAC Home Loans Servic ing, L.P. , No. 03-11-00644- CV, 2012 Tex. App. L EXI S 7506, at *2-3 (Tex. Ap p .—Austin Aug

. 30, 2012, no pet.) (mem. op.) (addr essing analog ous fac ts).

Bie rwirth admits that he cea sed making pay ments. Ba sed on Bie rwirth’s default

on the loan, BA C initiated nonjudicial fore closure proce eding s u n d er the terms of the deed of trust and in compliance with the proper ty code. See Tex. Prop. Code § 51.002 (authorizing sale of real property afte r default under powers gra nted i n deed of trust wi t h o u t nece ssity of fili ng suit

The MERS sy stem is “an ele ctronic mortg ag e re g istration sy stem and clea ring house that 3 trac ks benef

icial owner ships in, and servicing rig hts to, mortg ag e loans.” In re Mortg. Elec. Registration Sys. (

MERS) Liti

g ., 659 F. Supp. 2d 1368, 1370 (J.P .M.L . 2009).

2and obtaining judgme nt direc ting fore closure) ; Starcrest Trust v. Berry , 926 S.W .2d 343, 351

(Tex

. App.—Austin 1996, no writ) (def ining “dee d of trust” as mortg ag e with powe r t o s el l on defa ult). To stop fore closure, Bi er wi rth filed the underly ing decla ratory judgme nt suit “for

v erific ation of debt,” challeng ing BA C’s rig ht to fore close. BA C filed a counter claim s ee k i n g a decla ratory judgme nt that it was authorized to for eclose and subsequently filed a motion for summary judgme nt, contending that it conclusively proved the require ment s t o fo rec lose on the

secur ity instrument Bie rwirth execute d

. B ie r w ir th filed a response , rely

ing on fore closure case s from other states’ courts, arguing that BA C ha d not shown it wa s entitled to e nforc e the lien a s a holder in du e co u rse of the note. After a hear ing, the district court signe d a final order g ranting BA C’s summary judgme nt and allowingfore closure to pr ocee d. This appea l followed.
ANALYSIS Bie rwirth’s appellate arguments are all variations of a single issue: that BA C did not show it was a holder in d u e co u rs e of his note and thus was not entitled to summary judgme nt. 4

We revie w summary judgme nts de novo. See Mann F r ankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W .3d 844, 848 (Tex. 2009) (citing Provident Life & Acc ident Ins. Co.

v. Knott , 128 S.W .3d 211, 215 (Tex. 20 03)). To preva il on a motion for summary judgme nt, the moving party must show that there is no issue of materia l f act and that it is entitled to judg ment as
a matter of law. Tex. R. Civ. P. 166a(c ); see Mann Frankfort , 289 S.W .3d at 848. We consider the

W e need not addre ss Bie rwirth’s arguments conce rning a Fe dera l Trade Commi ssion 4 consent judgme nt and order beca use they wer e never prese nted to the district court and cannot provide a basis for reve rsal on appea l. See Tex. R. App. P. 33.1 (discussing prese rvation of err or). 3summary -judg ment evidenc e in the light most favor able to the non-p re v ailing party , cre diting

evidenc e favor able to that party if rea sonable jurors could and disreg arding contra ry evidenc e unless

rea sonable juror s could not. Mann Frankfort , 289 S.W .3d at 848.

BA C moved for summary judgme nt on Bier

wirth’s cla im that it lacke d the right to fore close and its counter claim for decla ratory judgme nt, including an order allowing fo reclosure under the secur ity instrument and section 51.002 of the Texas Property Code. See Tex. Prop. Code § 51.002; Tex. R. Civ. P. 166a(c ). BA C’s summary -judg ment evidenc e included a business-re cords aff idavit with the following attachments:

• a cer tified copy of the no t e t hat memorialized Bie rwirth’s promise to repa y $108,640 plus interest to Country wide Home L oans, Inc.;

• a cer tified copy of the deed of trust betwee n Country wide Home L oans, I nc. and Bie rwirth, conta ining the r ight of fore closure;

• a copy of the assig nment of the n o t e an d d eed of trust by Country wide Home L oans, I nc.’s nominee MERS to BA C, bear ing the file sta m p o f t h e Offic ial Public Records of Williamson C ounty ;

• a copy of BA C’s J uly 19, 2010 notice to Bier wirth that his loa

n was in “ serious defa ult beca use require d p ay

ments ha[d] not been made,” g iving Bie rwirth an oppo rtunity to cure the defa ult befor e Aug ust 18, 2010, and stating that “B AC Home L oan Servic ing, L P is a subsidi ary of B ank of A merica , N.A.”;

• a copy of the October 12, 2010 notice of acc eler ation of the maturity of the debt sent from BA C’s counsel by cer tified mail to Bie rwirth, enclosing a copy of the schedule d substitut e trustee ’s sale; a nd

• a copy of the notice of the substitut e trustee’ s sale—sche duled for Tuesday , November 2, 2010 at 11:00 a.m. at the northea st baseme nt door in the n ew addition to the Wil liamson County J ustice Center—f iled in the Offi ci al Public Records of

Wil liamson County

.

4See Tex. Prop. Code § 51.002 (re quired notice s to debtor pre cedingnonjudicial fore closure) . The

aff idavit, executed by Ba

nk of Am eric a, N.A. repr esentative Kevin F. Goforth, aver red that the 5 debt ref lected in Bie rwirth’s note and deed of trust was in defa ult for failure to make pay ments, and that Bie rwirth had been provided notice of defa ult, notice of acc eler ation, and notice of the substitut e trustee’ s sale. See id .; Bierwirth v. TIB-The Indep. Banke rs Bank, No. 03-11-00336- CV, 2012 Tex. App. L EXI S 6681, at *10-11 (Tex. App.—Austin Aug

. 10, 2012, no pet.) (mem. op.) (consider ing simil ar summar

y -judg ment evidenc e). Bie rwirth did not prod u ce any evidenc e controve rting BA C’s summary -judg ment evidenc e. S

ee Madek

sho v. Abraham, W

atkins, Nichols & Friend , 57 S.W .3d 448, 455 (Tex. App.—Houston [14t h Dist.] 2001, pet. denied ) (n o t i ng that “conc lusory argument” in response to motion for summary judgme nt is not summary -judg me nt e v id e n c e). Fur ther, Bie rwirth’s

re q u es t that the district court strike Goforth’ s aff idavit beca

use it came from an “intere st ed p ar t y ” was without merit. See Athey v. Mortgage Elec. Registration Sys ., 314 S.W .3d 161, 1 6 6 (Tex. App.—Eastland 2010, pet. denied) (mere fac t of aff iant’s employ

ment by MERS’s mortg ag e service r did not prec lude her testimony

). On appea l, Bie rwirth states that he “will not cite court opinions in order to justify his position” that he was entitled to prese ntment of the note as verific ation of his debt (and ultimately ,
as part of BA C’s demonstration of its rig ht to fore close). Cf

. Tex

. R

. Ap p . P

. 38.1(i) (re quiring appellant’ s brief to contain appropr iate citations to authorities). I n any e v e nt, Bie rwirth’s “show-me

the-note” argument has been considere d and reje cted by Texas courts, including this Court, beca use

The aff idavit states that Goforth is “an employ ee of Ba nk of Americ a, N.A., succe ssor by 5 merg er to B AC Home L oans Servicing , L P f/k/a Country wide Home L oans Servicing , L P.” 5“for eclosure statutes simply do not require possession or production of the orig inal note.” Bierwirth ,

2 0 1 2 T e x . App. L EXI S 7506, at *10 (quoting Reardean v. Citi Mortgage, Inc ., No. A-1 1

- CA

- 4 2 0

- SS , 2011 U.S. Dist. L EXI S 87567, at *7 (W.D. Tex. J uly 25, 2011)) (apply ing Texas law); see Martins

v. BAC Home Loans Servic ing, L.P. , No. 12-20559, 2013 U.S. App. L EXI S 8529, at *4-5 (5th Cir. Apr. 26, 2013) (same)

. As we have previously stated, the note and the deed- of-trust l i en af ford distinct reme dies on separ ate ob l igations—the note ag ainst the borrowe r and the lien ag ainst the

rea l proper

ty —thus, a lien cre ditor may pursue fore closure of a lien ag ainst rea l proper ty under the d eed of trust independe nt of any persona l action ag ainst the borrowe r for collection on t h e n o t e. Bierwirth , 2012 Tex. App. L EXI S 7506, at *11; Stephens v. LPP Mortg. , 316 S.W .3d 742, 747 (Tex. App.—Austin 2010, pet. denied).

Bie rwirth’s assertion that an entity must own or hold a promiss ory note t o conduct

a fore closure runs afoul of chapte r 51 of the proper ty code, which authorizes a mortg ag ee to sell rea l proper ty under a “powe r of sa le conf err ed by a dee d of trust.” See Tex. Prop. Code §§ 51.0001(4) (def ining “ mortg ag ee” ), .002 (providingproce dure f or for eclosure “under

power of sale c onfer

red by dee d of trust”); Bierwirth , 2012 Tex. App. L EXI S 7506, at *15-16; Athey , 314 S.W .3d at 166 (holding that MERS, lender ’s nominee, had authority under deed of trust to proce ed with nonjudicial fore closure) ; see also Kramer v. Fannie Mae , No. A

- 1 2

- CA

- 2 7 6

- SS , 2012 U.S. Dist. L EXI S 105878, at *17-18 (W.D. Tex. May 15, 2012) (conc luding Texas la w does not r equire that entity must own
or hold promissory note to conduct fore closure under associate d deed of trust); 15 W. Mike Ba g g ett, Texas PracticeSeries : Texas Fore closure: L aw & P rac tice § 2.02 (2002) (descr ibing nonjudicial fore closure proce ss). Chapter 51 of the proper ty code d efine s a “mortg ag ee” who is authorized to fore close as including “the g rante e, beneficiary , owner , or holder of a secur ity instrument. ”
6Tex. Prop. Code § 51.0001(4) (emph as i s ad ded). Her e, MER S was identified in the deed of t rust

as the B enef

iciary :
“MERS” is Mortg ag e Electronic Reg istration Sy stems, I nc. M E R S i s a separ ate corpor ation that is acting solely as a nominee for L ender and L ender ’s succe ssors and assig ns. MERS i s the bene ficiar y under this Secur ity

I nstrument. Thus, MERS was a “mortg ag ee” as define d in the p ro p er t y code. See Bierwirth , 2012 Tex. App. L EXI S 7506, at *16. The deed of trust also stated that MERS, as nominee for t h e L en d er (Country wide), ha d the rig ht to forec lose and sell the pr operty :
Bor rowe r understands and ag ree s that MERS holds only leg al title to the interests g rante d by Bor

rowe r in this Security Instrument, but, if nece ssary , to comply with law or custom, MERS (as nominee for L ender and L ender ’s succe ssors and assig ns) has the rig ht: to ex erc ise any or all of those interests, including, but not li mited to, the rig ht to fore close and sell the Property ; and to take any action require d for L ender , including, but not limited to, relea sing a nd canc eling this S ecur ity Intere st.
When MERS executed the assig nment t o BA C , BA C obtained all of MER S’s rig hts and int ere sts in the deed of trust (originating from the L ender , Country wide), including the “right to fore close and sell the Property .” See id. at *16-17 (citing Campbell v. Mort gage Elec. Registration Sys ., No. 0 3 -1 1 -0 0 4 29-CV, 2012 Tex. App. L EXI S 4030, at *15 (Tex. App.—Austin May 18, 2012, pet. denied) (mem. op.)) (consider ing identical provision in other deeds of trust). The deed of trust provided for the us e of MERS, and thos e provis i o n s ar e enfor cea ble t o the ex tent of t he terms set forth in the document. Bierwirth , 2012 Tex. App. L EXI S 7506, at *17 (citing Campbell , 2012 Tex. App. L EXI S 4030, at *15). Where a deed of trust expressly g rants MERS the power of sale, then MERS has that power . Campbell , 2012 Tex. App. L EXI S 4030, at *15 (citing Athey , 314 S.W .3d at 166); see also M

artins , 2013 U.S. A

pp. L EXI S 13886, at *12-13 (conc luding that possession of 7note was not require d for nonjudicial fore closure and noting that “dee d of trust ‘g ives the lender as

well as the benef

iciary the rig ht to invoke the power of sale,’ even though it would not be possible for both to hold the note” (quoting Robeson v. MERS , No. 02-10-00227- CV, 2012 Tex. App. L EXI S 137, at *16 (Te x . App.—For t Worth J an. 5, 2012, pet. denied) (mem. op.)) ); Kazmi v. BAC Home Loans Servicing, L.P. , No. 4:11-CV-375, 2012 U.S. D ist. L EXI S 24620, at *17 (E.D. Tex. F eb. 3, 2012) (“Since the Dee d of Trust identifies MERS as the benef iciary and the nominee for the orig inal lender and its succe ssors and assig ns, this makes MERS a mortg ag ee under the Texas Property Code. As a mortg ag ee, MERS could authorize BA C to service the loan and fore close, reg ardle ss of whether MERS was the true owne r of the N ote.”)

.

We conclude that BA C’s evide n ce conclusively established its rig ht to summary judgme nt as a matter

of law on its rig ht to proce ed with nonjudicial fore closure under B ierwirth’ s deed of trust and sectio n 5 1

. 0 02 of the Texas Property Code. Be cause the district court corr ectly g rante d BA C’s summary

judgme nt, we over

rule B ierwirth’ s issue.
CONCLUSION Havingoverr

uled B ierwirth’ s issue, we a ffirm the district c ourt’s orde r.

J eff Rose, J ustice Be fore J ustices Pury ear , Pemberton, and Rose Affir med Filed: F ebrua

ry 20, 2014 8