REVERSE and REMAND in part; AFFIRMED in part; and Opinion Filed June 24, 2019 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-17-01484-CV PNC MORTGAGE, A DIVISION OF PNC BANK, N.A. SUCCESSOR TO NATIONA L

CITY BANK, AND NATIONAL CITY MO RTGAGE, A DIVISION OF NATIONAL CITY BANK OF INDIANA, Appellants V. JOHN HOWARD AND AMY HOWARD, Appellees

On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause No. 199-01559-2010



### MEMORANDUM OPINION Before Justices Whitehill, Molberg, and Reichek Opinion by Justice Reichek In this suit concerning the default on a note and foreclosure s ale of a private home, PNC Mortgage, a division of PNC Ba nk, N.A. successor to National Ci ty Bank (“PNC”), and National City Mortgage, a division of National City Bank of Indiana (“Ba nk of Indiana”), appeal a partial summary judgment in favor of John and Amy Howard on their claim s against Bank of Indiana. PNC also appeals the final judgment following a bench trial on stipulated facts ordering that it take nothing by its claims against the Howards. In four issues, the banks generally contend the trial court erred in its application of the law to the undisputed sum mary judgment evidence and stipulated facts and in failing to file findings of fact and co nclusions of law. For the reasons that–2– follow, we affirm the trial court ’s judgment in part, reverse a nd render in part, and remand for further proceedings consist ent with this opinion. Factual and Procedural Background The undisputed facts relevant to our resolution of this appeal are as follows. In March 2003, the Howards purchased a home in Frisco, Texas and obtaine d two purchase money lien mortgages from First Franklin Financial Corporation. On March 24, 2005, the Howards entered into a loan refinance transaction with Bank of Indiana. In co nnection with the refinancing, the Howards executed a note and deed of trust on the property in fa vor of Bank of Indiana. The Howards then used the loan proce eds they obtaine d from Bank of Indiana to pay off the mortgage debts they owed to First Franklin. On March 4, 2008, Bank of Indiana assigned the note and deed o f trust to National City Mortgage Co., a subsidiary of National City Bank located in Ohi o (National City Bank). The assignment was recorded in the Collin County Records. The Howards stopped making payments on the note after November 1, 2008 and defaulted under the note’s terms. On Ja nuary 20, 2009, National City Ban k sent notices of default and intent to accelerate to both John and Amy Howard. On that date, Natio nal City Bank was the servicer and holder of the note and deed of trust. On June 19, 2009, Na tional City Bank, as servicer and holder of the note and deed of tr ust, sent the Howards notices of acceleration through its attorneys. On the same day that National City Bank accelerated the note, B ank of Indiana, which had previously assigned the note and deed of trust to National City Bank, appointed Greg Bertrand as a substitute trustee to conduct a foreclosure sale of the Howar d’s property. In November 2009, National City Bank was merged into PNC and PN C became the servicer of the Howard’s note. Four months later, in March 201 0, Bank of Indiana, through its attorneys, sent a notice of acceleration to Amy Howard. The no tice listed Bank of Indiana as the–3– mortgagee and PNC as the mortgage servicer. On April 6, 2010, Bertrand sold the Howard’s property at a nonjudicial foreclosure sale on behalf of Bank of Indiana. According to the substitute trustee’s deed, the property w as sold on behalf of, and also pu rchased by, Bank of Indiana. Ten days later, the Howards file d this suit agai nst Bank of In diana and PNC seeking to set aside the foreclosure sale and resulting substitute trustee’s d eed. In their petition, the Howards asserted the foreclosure was void because Bank of Indiana was n ot the mortgagee at the time it appointed the substitute trustee and held no interest in the de ed of trust at the time the property was sold on its behalf. Almost four years later, in Fe bruary 2014, the Howards filed a motion for partial traditional summary judgment against Bank of Indiana. In the motion, the H owards argued the foreclosure sale was void because the sale was both noticed by and conducte d on behalf of Bank of Indiana, which had assigned its interest in the note and deed of trust t o another bank prior to the foreclosure. The Howards further contended the foreclosure by Bank of Indian a violated the terms of the deed of trust which stated that a substitute trustee could only be a ppointed by the lender and, at the time the substitute trustee was appointed, the lender was National C ity Bank, not Bank of Indiana. In support of their motion, the Howards submitted documents includ ing the note, the deed of trust, the assignment of the deed of trust from Bank of Indiana to Nat ional City Bank, the substitute trustee appointment signed by a representative of Bank of India na, and the notice of substitute trustee sale and the substitute t rustee’s deed listing Bank of Indiana as the mortgagee. Although the motion was directed solely at Bank of Indiana, bo th PNC and Bank of Indiana filed a response arguing the Howards had asserted “a cause of a ction without recognition in Texas” and they were attempting to sidestep the elements of a wrongful foreclosure claim under section 51.002 of the Texas Property Code. The banks further construed the Howards’ motion as challenging the validity of the chain of assignments of the not e and deed of trust and contended–4– the Howards failed to produce any evidence that would allow the trial court to declare that “Defendants were neither the hol der nor the owner of the loan.” Neither PNC nor Bank of Indiana submitted any summary judgment evidence in support of their res ponse. In their reply to the banks’ response, the Howards noted that t heir motion was not directed at PNC or any interest it might have in the loan. The motion w as directed solely at Bank of Indiana because that was the entity that foreclosed on their property a fter assigning away its rights in the note and deed of trust. Following a hearing, the trial court g ranted the Howards’ motion and rendered judgment declaring the f oreclosure sale void ab initio

. On January 8, 2015, PNC and Bank of Indiana filed an amended an swer and, for the first time, asserted counterclaims again st the Howards seeking relief including a declaratory judgment for contractual and equitable s ubrogation and foreclosure of th e equitable lien. Four months later, in May 2015, PNC filed a separate lawsuit against the Howards s eeking damages for their failure to perform their obligations under the note. The Howards answe red and asserted the affirmative defense of limitations. The suit on the note was consolidated into this cause in October 2016. On April 3, 2017, the parties filed a joint motion for judgmen t on an agreed statement of facts, but reserved the right to i ntroduce additional evidence at trial. A bench trial was conducted on April 5, at which the Howards rested on the stipulated facts . PNC and Bank of Indiana called both John and Amy Howa rd as witnesses and elicited te stimony co ncerning amounts owed on the note, the refinancing of the loan in 2005, notices sent to the Howards, and Amy Howard’s bankruptcy. Based on the evidence presented, the trial court r endered judgment that PNC and Bank of Indiana take nothing by t heir claims against the Howard s and ordered that the note and lien on the Howards’ property were void and unenforceable. The judgment further incorporated the partial summary judgment rendered in favor of the Howards a nd awarded the Howards $75,000–5– in attorney’s fees. All other relief requested in the case was denied. PNC and Bank of Indiana then brought this appeal. Analysis I. Summary Judgment on the Foreclosure In their second issue, PNC and Bank of Indiana contend the tri al court erred in granting the Howards’ motion for partial summary judgment. We review the gr ant of a summary judgment de

novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010); Spicer v. Tex. Workforce
Comm’n , 430 S.W.3d 526, 532 (Tex. App.—Dallas 2014, no pet.). A mova nt for traditional summary judgment has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law. T EX
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. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548–49 (Tex. 1985); Spicer , 430 S.W.3d at 532; McCoy v. Texas Instruments,
Inc. , 183 S.W.3d 548, 553 (Tex. App.––Dallas 2006, no pet.). We co nsider the summary judgment evidence in the light most favorable to the non-movant. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009); Spicer , 430 S.W.3d at 532. When a plaintiff establishes his right to summary judgment as a matter of law, t he burden then shifts to the defendant as non-movant to present evidence that raises a genui ne issue of material fact, thereby precluding summary judgment. Boudreau v. Fed. Tr. Bank , 115 S.W.3d 740, 743 (Tex. App.— Dallas 2003, pet. denied). The trial court in this case granted summary judgment against B ank of Indiana and declared the foreclosure on the Howards’ property void ab initio. One o f the grounds asserted in the summary judgment motion was that Bank of Indiana had no authori ty to appoint a substitute trustee and foreclose on the property because it transferred all benefi cial interest in the note and deed of trust to National City Bank befo re it instituted foreclosure pr oceedings. This assignment was recorded in the Collin County Records. Pursuant to Texas law, a nonjudicial foreclosure may be–6– initiated by the current mortgagee. Santiago v. BAC Home Loans Servicing, L.P. , 20 F. Supp. 3d 585, 589 (W.D. Tex. 2014). If the security interest has been a ssigned of record, the current mortgagee is the last person to whom the security interest has been assigned of record. T EX
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. C ODE A NN . § 51.0001(4)(C). The Howards provided summary judgment evide nce that Bank of Indiana assigned its security int erest in the Howard property t o National City Bank before the Howards defaulted on the note. The summary judgment evidence a lso showed that, at the time the note was accelerated, National City Bank was the mortgagee. Th e evidence showed, therefore, that Bank of Indiana was not the current mortgagee and could no t initiate foreclosure proceedings. See Santiago , 20 F. Supp. 3d at 589. Because it was not the mortgagee, Bank of Indiana also had no a uthority to appoint a substitute trustee to conduct th e foreclosure. This Court addr essed a similar situation in Burnett v. Manufacturers Hanover Trust Co. , 593 S.W.2d 755 (Tex. App.—Dallas 1979, writ ref’d n.r.e.).
In Burnett , the original mortgagee on a loan for real property appointed a substitute trustee to foreclose on the property after it had assigned the note to ano ther entity. Id . at 756. The deed of trust required the a ppointment of the substitute trustee to be made by the holde r of the note. Id . at 757. Because the original mortgagee was no longer the holder o f the note, we concluded its appointment of the substitute trustee violated the terms of the deed of trust. Id . at 758. A foreclosure sale that is not c onducted within the authority con ferred by the deed of trust is void.
See id. at 757. In this case, the deed of trust stated that a substitute truste e may be appointed by the “Lender.” The summary judgment evidence showed that, at the ti me of the foreclosure, National City Bank was the current lende r. Under the terms of the deed of trust, therefore, Bank of Indiana had no authority to appoint the substitute trustee. We conclud e the Howards met their burden to–7– show their entitlement to summary judgment as a matter of law. The burden then shifted to the Bank of Indiana to present evidence sufficient to raise a genui ne issue of material fact. As noted above, PNC and Bank of Indiana filed a joint response to the Howards’ motion, but submitted no evidence in support. Instead, the banks argue d the Howards failed to provide proof that a wrongful foreclosur e occurred under section 51.002 of the Texas Property Code. 1 The banks further asserted the Howards had no standing to challenge the assignment of the note and deed of trust. But, as the banks now concede, the Howards’ cla im that Bank of Indiana had no authority to foreclose on their property was not a claim for wr ongful foreclosure under section 51.002 of the property code. And the Howards relied upon, rath er than challenged, the assignment of the note and deed of trust to s upport their right of recover y. On appeal, the banks now assert for the first time that PNC simply misidentified itself as Bank of Indiana in the foreclosure proceedings and the trial court “failed to appreciate that . . . Bank of Indiana, National City Bank, and PNC were all merged wi th and into each other.” On that basis, the banks contend the trial court erred in determin ing in its summary judgment ruling that PNC, as the successor bank, lacked authority to foreclose on the Howards’ property. This argument is misdirected because the trial court made no such de termination. The trial court determined only that Bank of Indiana lacked authority in April 2010 to appoint a substitute trustee and foreclose on the property because Bank of Indiana had no ri ght, title, or intere st in the note or deed of trust at that time. The banks do not challenge this fi nding. To the extent the trial court “failed to appreciate” that Bank of Indiana merged into National City Bank, and then PNC, this is because the banks never submit ted any evidence or made any arguments regarding an alleged merger or a purported “misident ification,” as a reason to deny the

1 Section 51.002 governs the manner in which foreclosure sales a re conducted and sets forth requirements concerning, among other things, notices and when and where the sale must occur. T EX

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. C ODE A NN . § 51.002.–8– Howards’ motion for summary judgment. We note that PNC and Ban k of Indiana have been listed and treated as separate parties, not merged entities, throughou t the proceedings in this case. We cannot reverse a summary judgment on a ground not raised below. Pinnacle Anesthesia Consultants, P.A. v. St. Paul Mercury Ins. Co. , 359 S.W.3d 389, 398 (Tex. App.—Dallas 2012, pet. denied); Shih v. Tamisea , 306 S.W.3d 939, 944 (Tex. App.—Da llas 2010, no pet.) (except to attack legal sufficiency of movant’s grounds, non-movant must e xpressly present to trial court any reason for avoiding movant’s enti tlement to summary judgment). The banks point to one reference to the mergers in the summary judgment proceedings to argue that the issue was suffici ently raised in the trial court . This reference is in a footnote on the first page of a motion for summar y judgment the banks filed nea rly a year after t he Howards filed their motion. There are several reasons why this footnote did not sufficiently raise the merger and misidentification issues to either defeat the Howard’s motion f or summary judgment or preserve these issues for review on appeal. First, although the trial court conducted hearings on both moti ons for summary judgment before granting the Howards’ motion, the trial court’s order st ates it considered only the Howards’ motion in making its ruling. The record does not reveal any ru ling on the banks’ motion. Even if the trial court considered the banks’ motion for summar y judgment before granting the Howards’ motion, the footnot e outlining the mergers was for identification pu rposes only and bore no relevance to the grounds asserted by the banks for summ ary judgment. The banks made no argument regarding an alleged misidentification in the forec losure documents or the effect of the alleged merger of Bank of Indi ana with National City Bank a nd PNC on the Howards’ claim against Bank of Indiana. Indeed, the banks make no argument ev en on appeal regarding the effect of the alleged misidentificati on other than to assert it occurr ed.–9– Next, the banks did not submit a ny summary judgment evidence in support of their merger assertions. Mere assertions are insufficient to create a fact issue precluding summary judgment.
Boudreau , 155 S.W.3d at 743. Although th e banks suggest the trial cour t could have taken judicial notice of the mergers, they never requested it do so. Nor did they present any arguments that might have prompted the trial c ourt to do so sua sponte. Finally, the footnote on which the banks rely does not state wh en any of the mergers took place. Accordingly, the trial court was not provided with any information in the summary judgment proceedings from which it could have concluded that Ba nk of Indiana merged with National City Bank and/or PNC before it commenced foreclosure p roceedings on the Howards’ property. In other words, there is nothing in the footnote to suggest the mergers occurred during a time period that would impact the Howards’ claim that Bank of Indiana had no interest in the note and deed of trust at th e time it foreclosed. As a separate basis to reverse the summary judgment, the banks argue the summary judgment evidence shows that PNC “adequately designated” a subs titute trustee under the terms of the deed of trust by having th e trustee’s law firm send a no tice of accelerati on to Amy Howard in March 2010. As with the banks ’ arguments concerning the all eged mergers and misidentification, this reason to deny the Howards’ motion for summary judgment was never presented to the trial court. Even if we consider the argument as a challenge to the legal sufficiency of the Howards’ grounds for summary judgment, and even if we co nsider the March 2010 notice of acceleration to be an effective appointment of a substitute trustee, PNC does not address the fact that the acceleration notice states PNC was acting in its capacity as mortgage servicer for Bank of Indiana, not as the lender, in authorizing the substitute tr ustee to foreclose. In fact, PNC later stipulated at trial that the March 2010 notice of acceleration was sent by Bank of Indiana, not PNC. Accordingly, this notice does not raise a genuine issue of mate rial fact as to the Howards’ claim–10– that Bank of Indiana appointed the substitute trustee in violat ion of the terms of the deed of trust.
See Burnett , 593 S.W.2d at 758. In their last challenge to the summary judgment, the banks con tend the Howards failed to prove the elements of “wrongful foreclosure” as a matter of law because they did not show any irregularity in the sale process or that the sale resulted in a n inadequate sales price. In a footnote to their brief, the banks acknowledge that the Howards’ claim a lleging the foreclosure sale was conducted without authority is different than a claim alleging wrongful foreclosure based on irregularities occurring within the sale. The banks go on to a ssert, however, without argument or authority, that PNC’s misidentification of itself as Bank of In diana in the foreclosure documents was an irregularity in the sale proceeding requiring the Howard s to show an inadequate sale price. The failure to specifically argue and analyze one’s position or provide authorities waives any error on appeal. In re B.A.B. , 124 S.W.3d 417, 420 (Tex. App.—Dallas 2004, no pet.). And ag ain, PNC never argued or presented any evidence in the summary judgment proceedings below to show that the foreclosure conducted on behalf of Bank of Indiana was the result of a misidentification. We conclude the banks failed to rai se a genuine issue of material fact to defeat the Howards’ motion for summary judgment and the tria l court properly declared the foreclosure sale by Bank of Indiana void. We resolve the banks’ s econd issue against them. II. Equitable Subrogation In their third issue, the banks contend the trial court erred in failing to grant judgment in favor of PNC following the bench trial on its claim for equitab le subrogation because PNC’s right to subrogation was established by the stipulated evidence. Acc ording to the banks, to the extent the Howards used the proceeds of the loan they obtained from Ba nk of Indiana to pay off their mortgage debt with First Franklin in the 2005 refi nancing trans action, the banks became subrogated to First Franklin’s rights and assumed their lien po sition. The banks argue, therefore,–11– that PNC now has a valid equitable lien on the Howard’s propert y and it should be allowed to foreclose this lien. PNC is asserting an equitable lie n, rather than seeking to fore close the lien created by the deed of trust executed as part of the loan refinancing transact ion, because, as counsel for the banks stated at trial, they “admittedly have a limitations problem.” The banks stipulated before trial that National City Bank, as the holder of the note and deed of trust at the time the Howards defaulted, properly accelerated the note on June 19, 2009. Once a note is accelerated, the cause of action for foreclosure of the deed of trust lien securing the note accrues and the sale of the property must occur within four years. T EX
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. C ODE A NN . § 16.035(b); Holy Cross Church of God in Christ v. Wolf , 44 S.W.3d 562, 574 (Tex. 2001). When the four-year period ex pires, the real-property lien, and the power of sale to enforce the lien, become void. See Wolf , 44 S.W.3d at
567. The acceleration by National City Bank was effective as to PNC as the subsequent holder of the note and deed of trust. Id . It is undisputed that PNC asse rted no lien claims against th e Howards until January 2015, more than five years after the note was accelerated. The banks contend this limitations issue does not affect PNC’s equitable lien claim because a subrogation cause of action does not accrue until the maturity date of the underlying debt that was paid off in the refinancing. 2 See Gillespie v. Ocwen Loan Servicing, LLC , No. 4:14-cv-00279, 2015 WL 12582796, at *4 (S.D. Tex. Oct. 28, 2015). A party asserting a claim for e quitable subrogation bears the b urden of establishing entitlement to it. Murray v. Cadle , 257 S.W.3d 291, 300 (Tex. App.—Dallas 2008, pet. denied). When determining whether a party is entitled to equitable subro gation, the trial court must balance

2 The banks do not specify the maturity date of the underlying d ebt, nor point us to anywhere in the record where such date could be determined. Nevertheless, we will assume fo r purposes of this discussion that the banks filed their equitable lien claims within the limitations period.–12– the equities in view of the totality of the circumstances. Id . The trial court has discretion in deciding cases involving equitable relief, and we will not dist urb the trial court’s balancing unless it is shown it would be inequitable to do so. Id . The Howards argued at trial, and contend again on appeal, that PNC is not entitled to an equitable lien becaus e its inability to foreclose on the lien created by the deed of trust is due entirely to the banks’ refu sal to acknowledge their error in having the wrong bank foreclose in 2010 and their failure to remedy th is error by having the correct bank foreclose within the period dict ated by the statute of limitati ons. Among the factors the court may consider in conducting its bala ncing test is the negligence of the party claiming subrogation. Id .; see also Providence Inst. for Savs. v. Sims , 441 S.W.2d 516, 519 (Tex. 1969) (negligence on part of party seeking subro gation of some importance when right is wholly dependent on equitable principles). Such negli gence may take the form of carelessness or sloppiness in the pursuit or protection of the party’s rights. In re Okedokun , 593 B.R. 469, 548 (Bankr. S.D. Tex. 2018). For example, in Zapeda v. Federal Home Loan Mortgage
Ass’n , the trial court concluded the lender was not entitled to equi table subrogation because the lender was afforded ample notic e and opportunity to cure the de fect in its contractual lien and failed to do so. No. 4:16-cv-3121, 2018 WL 781666, at *8 (S.D. Tex. Feb. 8, 2018). According to the court, rather than simply curing the problem, the lender chose to send the borrower a “nonsense response” that failed to address or cure the issue. Zapeda , 2018 WL 1947848, at *2 (S.D. Tex. April 25, 2018). Similarly, in this case, the Howards notified the banks ten day s after the foreclosure sale that the wrong bank had conducted the foreclosure. At that poi nt, the banks had more than three years to correct the problem before the statute of limitations expired. Instead, the banks responded, without any legal basis, that the Howards’ claim was “a cause o f action without recognition in Texas.” PNC chose to wait almost five years afte r being notifi ed of the issue, a nd five-and-a-half–13– years after the note was accelerated, to seek foreclosure on th e property in the nam e of the correct bank. The statute of limitations on foreclosures would be rende red meaningless if lenders could always avoid it simply by claiming equitable subrogation. See id . Based on the parties’ pleadings and the stipulated facts, we conclude the trial court did not a buse its discretion in refusing to award PNC the equitable relief it s ought. We resolve the banks’ thir d issue against them.
III. Suit on the Note In their fourth issue, the banks contend the trial court erred in failing to grant judgment in favor of PNC on its suit to recover on the note because the sti pulated facts established its right to collect. The stipulated facts demonstrate, and the Howards do not dispute, that they defaulted on the note in 2008 and th e note was properly a ccelerated in June 2009. PNC filed its suit to recover on the note in May 2015. The only affirmative defense the Howa rds raised to recovery on the note was that the claim was barred by the statute of limitations. T he Howards bore the burden at trial of proving their limitations defense. See Woods v. William M. Mercer, Inc. , 769 S.W.2d 515, 517 (Tex. 1988). The Howards contend that the banks’ claim to recover on the not e is barred by the fouryear statute of limitations applicable to suits on a debt under section 16.004 of the civil practice and remedies code. See T EX
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. C ODE A NN . § 16.004. The banks respond that PNC’s claim is governed by the limitations period found in sect ion 3.118 of the Texas Business and Commerce Code, which states that “an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years a fter the due date or dates stated in the note or, if a due date is ac celerated, within six years aft er the accelerated due date.” See T EX
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. C ODE A NN . § 3.118(a). Because PNC filed its suit within six years of t he date the note was accelerated, the banks contend the ac tion was filed ti mely.–14– Where there is a debt secured by a note, which is in turn, secu red by a lien, the note and lien constitute separate obligations. See Aguero v. Ramirez , 70 S.W.3d 372, 374 (Tex. App.— Corpus Christi–Edinburg 2002, pe t. denied). Although the real property lien may be time barred, the lender may still recover on the note under the six-year lim itations period applicable to negotiable instruments. Id . The Howards argue the six-year limitations period does not a pply in this case because the note at i ssue is not a negotiable instrum ent. The negotiability of an instrument is a question of law. Great N. Energy Inc. v. Circle Ridge Prod., Inc. , 528 S.W.3d 644, 660 (Tex. App.—Texarkana 2017, pet. denied). A “negotiable instrument” is an “unconditional promise or order to pay a fixe d amount of money, with or without interest or other charges described in the promise or order, if it . . . does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money. . . .” T EX
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. C ODE A NN . § 3.104(a). An exception to this restriction on undertakings is that the promise or order may co ntain “an undertaking or power to give, maintain, or protect col lateral to secure payment.” Id . Furthermore, a promise or order is not made conditional by a reference to another record for a sta tement of rights with respect to collateral, prepayment, or acceleration. Id . §3.106(b). The Howards assert their note is not a negotiable instrument be cause it contains multiple undertakings and instructions in addition to the payment of mon ey. The Howards list nine different alleged additional undertakings t hat render the note non-negoti able: 1) the payment of late fees; 2) the reference to a deed of trust which grants additional pri vileges to the holder to demand immediate payment and s tates under what conditions th e borrower may be required to make imm ediate payment in full; 3) the instruction that the holder will deliver or mail notices including changes in the interest rate and monthly payments;–15– 4) the obligation that the borro wer tells the note holder, in w riting, if the borrower opts to prepay; 5) The instruction that if appli cable law is finally interprete d so that the interest charged under the note or other loan charges exceed legal limit s, then (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit, and (b) any sums already collected by the lend er that exceeded permitted limits shall be refunded to the borrower; 6) the instruction th at the lender send w ritten notice of defau lt; 7) the instruction entitling the lender to be paid back by the borrower for all costs and attorney’s fees; 8) the instruction that the lender send any notice that must be given to the borrower pursuant to the terms of the note by either delivering it or ma iling it by first class mail; and 9) the instruction that the bor rower send any notice [that] mus t be given to the lender pursuant to the terms of the note by either delivering i t or mailing it by first class mail. With respect to late fees, the definition of a negotiable inst rument states that the promise to pay may include “interest or other charges described in the promise.” T EX
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NN . § 3.104(a). Late fees are clear ly “other charges” that fall within the scope of the definition of a negotiable instrument. See William H. Burgess III, Negotiability of Promissory Notes in Foreclosure Cases: Ballast is not Luggage , 88-MAR Fla. B.J. 8, 15 ( 2014). Similarly, section 3.106(b)(i) explicitly allows a negotiable instrument to refere nce a separate writing, such as a deed of trust, for information concerning collateral, prepayment, or acceleration. See T EX
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. C ODE A NN . § 3.106(b)(i). The reference to the deed of trust listed by the Howards as the second “additional undertaking” in the note falls squarely within the language permitted by section 3.106(b)(i) and has no effect on the note’s negotiability. See id . § 3.106(b)(i) cmt. 1. The third, fourth, sixth, eighth, and ninth alleged additional undertakings all concern the giving of notices. The notices i nvolve either interest, prepay ment, default, or other matters controlled by the note. In each case, the required notice is e ither incidental to the note’s unconditional promise to pay or a permissible undertaking to ma intain or protect the collateral.–16– See id . § 3.104(a)(3)(A). The Howards c ite no authority, and we have found none, that notice provisions of this sort would r ender the note non-negotiable. The Howards do not explain how the fifth item on their list, o therwise known as a usury savings clause, constitutes an additional undertaking or otherw ise affects negotiability. The clause merely adjusts the amount of interest charged on the note to th e readily-ascertainable permitted legal limit. The Texas Supreme Court has held that a variable interest rate does not render a promissory note non-negotiable so long as the rate is readily a scertainable by any interested person. See Amberjoy v. Societe de Banque Privee , 831 S.W.2d 793, 797-98 (Tex. 1992). Finally, the provision of the note requiring the Howards to re imburse the note holder for all costs and expenses incurred in enforcing the note, like the late fees discussed above, falls under the category of “other charges described in the promise” which are specifically permitted. T EX
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. C ODE A NN . § 3.104(a). The charges relate only to collecting on the ind ebtedness evidenced by the note and do not alter or expand the borrowers’ obligation to pay the amount fixed by the note. As such, the provision does not impact the note’s negotiability. See Burgess , supra, at 17. Because the note at issue is a negotiable instrument, it is su bject to a six-year limitations period rather than a four-year period. See T EX
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. C ODE A NN . § 3.118(a); Aguero , 70 S.W.3d at 374. The stipulated fact s and pleadings in the recor d show the Howards are in default on the note and PNC brought its claim to recover within six yea rs of the date its claim accrued. Accordingly, we conclude the trial court erred in rendering jud gment that the note was void and unenforceable and in failing to render judgment in favor of PNC on its claim to recover on the note. We resolve the banks’ f ourth issue in their favor.–17– IV. Findings of Fact and Conclusions of Law Although requested by the banks, the trial court in this case d id not file findings and conclusions of law. The banks req uest in their first issue tha t we instruct the trial court to file findings and conclusions so that they “may better show this Cou rt where reversible error exists within the trial record.” Given the procedural history and rec ord in this case, we conclude findings and conclusions are neith er necessary nor proper. The validity of the 2010 foreclos ure on the Howards’ property was resolved by summary judgment. Findings of fact and conclusions of law are improper in a summary judgment proceeding. See Stangel v. Perkins , 87 S.W.3d 706, 709 (Tex. App.—D allas 2002, no pet.). The remainder of the case was resolved in a bench trial that w as conducted almost entirely on stipulated facts. At the beg inning of the trial, counsel fo r the banks stated that the questions being presented to the court “are basically questions of law, n ot so much fact.” Although the Howards testified at trial, the banks do not explain how their testimony had any bearing on the claims presented. Nor do they explain how the Howards testimon y presented any conflicting evidence that would require the trial court to decide a questio n of fact. The banks have contended on appeal that PNC’s lien rights, as well as its right to recov er under the note, could both be determined entirely by the stipulated facts. Generally, findin gs of fact and conclusions of law have no place in a trial based on stipulated facts. See Int’l Union, United Auto., Aerospace and Agric. Implement Workers of A.-UAW, v. Gen. Motors Corp. , 104 S.W.3d 126, 129 (Tex. App.—Fort Worth 2003, no pet.). The banks have failed to show how this c ase is an exception to that rule. We resolve their first issue against them.–18– Conclusion Based on the foregoing, we affir m the trial court’s partial su mmary judgment in favor of the Howards on their claim against Bank of Indiana. We further affirm the trial court’s judgment declaring that any lien or power of sale held by the banks on t he Howards’ property is void and unenforceable. We reverse that portion of the trial court’s ju dgment declaring the note held by PNC to be void and unenforceable and render judgment in favor o f PNC on their note claim. We remand this cause to the trial court to determine the proper am ount recoverable by PNC on its claim to enforce the note.

171484F.P05 /Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE–19– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
PNC MORTGAGE, A DIVISION OF PNC BANK, N.A. SUCCESOR TO NATIONAL CITY BANK AND NATIONAL CITY MORTGAGE, A DIVISION OF NATIONAL CITY BANK OF INDIANA, Appellants
No. 05-17-01484-CV V. JOHN HOWARD AND AMY HOWARD, Appellees On Appeal from the 199th Judicial District Court, Collin County, Texas Trial Court Cause No. 199-01559-2010. Opinion delivered by Justice Reichek. Justices Whitehill and Molberg participating.

In accordance with this Court’s opinion of this date, the judg ment of the trial court is AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court's judgment declaring the note he ld by PNC MORTGAGE, A DIVISION OF PNC BANK, N.A., SUCCESSOR TO NATIONAL CITY BA NK, to be void and unenforceable. We RENDER judgment in favor of PNC MORTGAGE , A DIVISION OF PNC BANK, N.A. , SUCCESSOR TO NATIONAL CITY BANK on its cla im against JOHN HOWARD and AMY HOWARD to recover on the note. In all othe r respects, the trial court's judgment is AFFIRMED . We REMAND this cause to the trial court for determination of the proper amounts recoverable by PNC MORTGAGE, A DIVISION OF PNC BANK, N.A., SUCCESSOR TO NATION AL CITY BANK. It is ORDERED that each party bear its ow n costs of this appeal.
Judgment entered June 24, 2019