## In the Court of Appeals Second Appellate District o f T e xas

at Fort Worth

___________________________ No. 02

- 20

- 00179

- CV

___________________________

On Appeal from the 141st District Court Tarrant County, Tex as Trial Court No. 141

- 301419

- 18
Before Birdwell, Bassel, and Womack, JJ. Memorandum Opinion by Ju s tice Womack 

### D AVID 

### K

ERR AND 

### G AIL 

### K

ERR 

### , Appellants
V


### . T HE 

### B ANK OF 

### N EW 

### Y ORK 

### M ELLON 

### T RUST 

### C OMPANY 

### , N. A. AS 

### T RUSTEE O N BEHALF OF 

### CWABS A SSET



### - B ACKED 

### C ERTIFICATES 

### T RUST 

### 2007

- 1 2 A N D 

### C ARRINGTON 

### M ORTGAGE 

### S ERVICES 

### , LLC , Appellees2 MEMORANDUM OPINION I. I NTRODUCTION Appellants David and Gail 1 Kerr ( Kerrs) 2 appea l the trial court ’ s judgment ordering that they take noth ing on their claims against A ppell ees The Bank of New York Mellon Trust Company, N.A. as trustee on behalf of CWABS , Inc., Ass et

Backed Certificates Trust 2007

- 12 (BoNYM trust company) and Carrington Mortgage Services, LLC (Carrington) and granting Carring ton ’ s counter claim for declaratory

r elief

. 3 In two p oints, the Kerrs argue that the trial court erred (1) by granting Carri ngton ’ s coun ter claim and ( 2) by granting judgment in BoNYM trust company and Carrington ’ s favor. We affirm. II. B ACKGROUND David Kerr ex ecuted a Texas ho me equity note o n June 22, 2007 , promising to repay an original principal amount of $7 5,400, plus interest , beginning on Aug u st 1,

1 On December 24, 2020, the Kerrs ’ counsel fil ed a sug g est ion of death indicatin g th a t Appellant Gail Kerr died on December 6, 2020. Howeve r , pursuant to Rule 7.1(a)(1) of th e Texas Rules of Appellate Procedure, we “ proceed to adjudicate the appeal as if all parties were alive. ” Tex. R. App. P. 7 .1( a) (1).

2 W he n necessary , w e will refer t o each individual A ppellant by the names David Kerr or G ail Kerr

. Also when necessary, we will refer to BoNYM trust company an d Carrington collec tively as Ap pellees.

3 Even though not par ties to this appeal, CWABS , I nc . , Asse t

- B acked Certificates, Series 2007

- 12 trust ( CWABS) is the owner of the loan at issue in this cas e , and The Bank of New York Mellon (BoNYM state bank) is the trustee of the certificate hol ders of C WABS

.3

2007 , and maturing on July 1, 2037 , at the r ate of $684.08 monthl y . To secure repayment of the loan, David and Gail Kerr executed a Texas home equity security in strument on June 29, 2007, granting a lien again st their property loca t ed in Bedfor d

. The Kerrs filed this suit on August 6, 2 0 18, again st BoNYM trust company and Carrington to stay a foreclosure sale scheduled the next day. The Kerrs argued that BoNYM state bank noticed the foreclo sure sale but never obtained a court ord er to do so. The Kerrs asserted clai m s for breach of contract and v iolation s of the Texas Property Code and the Te xas Debt Co llection Act (TDCA)

. Carrington, as mo rtgage servicing agent fo r BoNYM state bank, asserted a counterclaim ag ai n st the Kerrs for a declaration tha t it w as entitled to foreclose the security instrum ent and sell the property due to the default. 4 On January 30, 2020, the trial co urt heard the Kerrs’ claims and Carrington’s counterclaim. At trial, copies of the relevant note, security instrument, assignment instru ment , servicing t ransfer notice, and two April 1, 2019 notices of defaul t were admitted into evidence. While t he Kerrs offered no ex h ibits into evide nce , Dav id Kerr testif

ied tha t , after obtaining the loan, he began to immediately have difficul ty making payments on it

. According to him , so m e of the problems he exp erienced were due to the original

4 T he Kerrs amend e d the ir petition to name BoNYM sta t e bank as an additional defe n dant but later nonsuited BoNYM st a te bank on the record at the beginning of the bench trial

.4

lender going out of business , and he di d not know where to make hi s payments or to whom to make them

. He also testified that there had been two pr ior attempts by BoN YM state bank 5 to foreclose on t he securi ty instrument and sell the property. By David Kerr ’s accoun t, he last made a p a yment on the loan shortly after having take n it

out , and he had not made any payments for almost twelve years

. He said he believed that the payments were “ around 70 0 ” but that he was not sure because it had “ been a while ” since he had made a payment. He also admitted that he had not been paying taxes on the property , that the taxes had “ been taken care of, ” and that he did not have the funds to repay the roughly $60, 0 00 that he had not paid in mortgage payments or taxes over the last twelve years . Bo NYM trust company and Carrington called Demetrius Dansby, a litigation

case ma nager for Carrington , to testify

. Dansby sai d that h is duties included

rev iewi ng collatera l files and system records and se rving a s a cor porate witness in

cou rt proce edings, including trials, depositions , and mediations. Dan sby stated that David Kerr had signed a Texas H ome E quity note on J une 22, 2007 , for the amo unt of $75,400

. The loan w as a t hirty

- year mortga ge and the maturity date would ha v e been Ju ly 1, 20 3 7. Under the terms of the note, David Kerr was to make regular monthly payment s of principal and int erest in the amount of $6 8 4.08 beginning August 1 , 2007 , and continui ng on the fir s t day of each month until the loan ma tured

.

5 BoNYM state bank was formerly known as The Bank of New York.5

I f David Kerr failed to make payments in the time and manner required by the loan, the lender had the rig

ht to obtain an order authorizi ng it to foreclose the security instru ment and sell the prope rty as provid e d in the note ’ s p ower
- of

- sale provision

. Dansby also explained that the Kerrs had signed a security instrument that granted a lien agains t the Kerr s ’ residence in Bedford, Texas

. Further, D ansby testified that there was an “Assign ment of Deed of Trus t” that assigned the security instrument to BoNYM state b ank and named Carrington as the loan servic e r . He also said that CWABS is the owner of th e loan , and BoNYM state b ank is its trustee. By Dansby’s account, the Kerrs only made three payments on the l o an i n August, Sep tember, and October 2007. D ansby s aid that Carrington had s ent the Kerrs two notices of default on Apri l 1, 2019. By the term of the notices, the Kerrs had thirty days from the time of the not ice to cure the de fault or the Bedford prope r ty would b e schedul ed f

or foreclos ure. Dansby averred that the Kerrs did not cure the default. Mor eover, Dansb y stated that the outstanding princip al on the loan was in excess of $75,000, that there was an outstanding unpaid interest balance of roughly $ 9 7,000, and t hat Car rington or its predecessors had spent almost $70,000 for the paymen t of property taxes and insurance

. According to Dansby, when adding associated late charges, the total amount owed on the loan was in excess of $ 220,000

. Dansby also testified regarding two prior Rule 736 proceedings

. See genera lly T ex . R. C iv . P. 736.1 et seq
. Dansby said that although an incorrect “ entity ” had obtain ed a Rule 73 6 order in 2014 , the Kerrs filed a lawsuit that sta y ed foreclosu re of6

t he property for 56 9 days

. Dansby also averred t hat this current lawsuit filed by the Kerrs was in response to a second Rule 736 order tha t had been issued. At the

conc lusion of the evidence, the trial cou rt took the matter u nder advisement and requested proposed final o rd ers. On February 7, 2020, the trial court entered its final judgment ordering the Kerrs to take nothing on the ir claims against B oNYM trust company and Carring ton . The trial court also g

r anted Carringto n judgment on its counterclaim declaring its righ t t o foreclose the security instrument and sell the property at a nonjudicial for e closure sale pursuant to the Texas Pro p erty Code

. See Tex

. Prop. Code Ann. §§ 51.002(b), 51 .0025(

2 )

. After the Kerrs requested finding s of fa ct and co nclusions of l aw and the n fil ed a notice of past

- due findings of fact and conclusions of law , the trial court entered its f inding s of fact an d conclusions of law

. T h e Kerrs filed a motion to vacate judgment, wh ich was overruled by op era tion of law

. This appeal followed. III. D IS CUSSION A. Carrington ’ s Countercla im In their first po i nt, the Kerrs argue that the trial court er red by gra nting Carrington ’s co unterclaim. Specifically, th e Kerrs contend that Carr ingt on ’s

counter claim “ was impermissible in a suit brought b y home equ it y loan debtors in response to an order gra n ted in a prior proceeding under ” Texas Rule of Civ il P rocedure 736. Appellees respond that “ Carrington was not barred from brin gi ng a7

counterclaim pursuant to [ Rule 73 6] and neither it nor BoNY trust co mpany la ck ed standing or capacity to su e or be sued in this action. ” We agree with Appellees

. 1. Permissibility of Counter c laim “A suit to fo reclose on real property

. . . is a legal proceeding seeking the satisfaction of a debt through foreclosure of [a] lie n o n real property.” Mar k v. Household Fin. Corp. III

, 296 S.W.3d 838, 839 (Tex. App.

— Fort W orth 2009, no pet.).

“ The basis of such an a ction is a promissory note secured by a d eed of trust or mortgage on real property .” Id . (emphasis added). “A lien s ecu ri ng rep ayment of a home

- equity note may only be foreclosed upon by a court order.” Grady v. Na tionstar Mortg., LLC

, No. 02

- 16

- 00481

- CV, 201 7 WL 5618690, at *1 n.2 (Tex. App.

— Fort W orth Nov. 22, 2017, pet. denied) (mem. op.) (citing Tex. Const. art. XV I, § 50(a)( 6)(D) ); see Well

s Fargo Bank, N.A. v. Robinson , 391 S.W.3d 590, 593 (Tex. App.

— Dal las 20 12, no pet.). When, as here, the security ins trument as part of a home

- equity loan con tains a power
- of

- sale provision, the lender may file a claim for judici al fo reclos ure or use Texas R ule of C ivi l P rocedure 736 to obtain an order allowing it to proceed w ith nonjudicial foreclosure. 6 See Steptoe v. JPMorgan Chase Bank, N.A. , 464 S.W.3d 42 9,

6 In the case of a nonjudic ial foreclosure, C hapter 51 of t he P roper ty C ode supplies the statut o r

y requirements, in addition to those in the deed of trust, that must b e followed to effectuate a vali d sale. See Tex. Prop. Co de Ann. § 51.002 (“Sale of Rea l Proper ty Under Contract Lien”); Morrison v. Christie , 266 S .W.3d 89, 92 (Tex. App.

— Fort Worth 2 0 0 8 , no pet.) (“Section 51.002 regulates nonjudicial foreclosures,8

432

– 33 (Tex. App.

— Houston [1st Dist.] 2015, no pet.); see also Tex. R. Ci v. P. 735.1(a) (statin g that R

ule 7 36 provides the procedure for obtaining a court order to al low foreclosure of a home

- equity loan contain ing a power of sale in the security instr ument); Tex. R. Civ. P. 735.3 (stating that a R ule 736 order is not a s ubs ti tute f or a judgment fo r judicial fo reclosure); 27 Genevieve Hebert Fajardo & Ramona L. Lampley , Texas Practice Series: C onsumer Rights & Remedies § 7.14 (3d ed. 2020 ) (stating that a party seeking to forecl ose a home

- equity loan “may file suit seeking ju di cial foreclosure, file a suit or counterclaim se e king a final judgment which includes an order allowing foreclosure unde r [ S ection 51.002 of] the Texas Property Code , or file an application under Rule 736 ” (footnotes omitted) ). Specifically regarding Rul e 736, the rule provides a special procedure for

o b taining a court order to foreclose a home equity lien. Steptoe , 464 S. W.3d at 43 3 (citing Tex. R. Civ. P. 735.1). “ Rule 736 p rovides a faster, more streamlined altern ative to judicial foreclosure, ” wi th spe cial rules and procedures inappl icable to

conven t ional suits. Tex. R. Civ. P. 736; Steptoe , 464 S.W.3d at 433 (citing H uston v. U .S. Bank Nat ’

l Ass ’ n , 359 S.W.3d 679, 682 (Te x. App.

— Houston [1st Dist.] 2011, no pet. )). Any challenge to a Rule 736 o rde r m ust be made in “a suit filed in a separate, inde p endent, original proceeding in a c ourt of compe tent jurisdiction. ” Tex . R. Civ.

that is, the sale of real property a fter default by the debtor under a power of sale conferr ed by de ed of trust or other contract lien.”).9

P. 736.8(c). If such a suit is filed, a proc eeding or order under Rule 736 is

automat ically stayed . Tex. R. Civ. P. 73 6.1 1(a ). Citing Reddick v. Deutsche Bank National Trust Com pa n y , the Kerrs argue that a counterclaim for j udicial foreclosure in a bo rrower ’ s suit against the lender is impermissible. No. 3:16

- CV

- 1997

- D, 2017 WL 6343542, at *3 ( N. D. Tex. Dec. 12, 2017). T he Kerr s specifically point to a statement m ade in Reddi c k where the court stated, “ Deutsche Bank co uld n ot exercise this right by bringing a Rule 736 proceeding or a counterclaim in a borrower’s suit against the lender. ” Id

. But the Reddick court was sp eci fically discussing proceedings under Ru le 736 when ma ki n g this statement. Id

. Indeed, the Reddic

k court cited Steptoe

. Id

. A review of Ste

ptoe reveals that what is impermissible is a Rule 736 proceed ing being “ bro ught a s a
counter claim in a borro wer ’ s suit against the lender

. ” 464 S.W.3d at 43 3

. Thus, we conclude that the Kerrs ’ reliance on Reddick is mispla ced. Further, w e agree wit h Appellees that the answer to the question of whether a counterclaim seeking a dec l ar atory judgm ent aut horizin g j udi ci al foreclosure can be brought in a b o rr ower ’ s suit ag a inst a lender can be f ound in Wilder v. Caliber Home Loans, Inc. , No. 3 :18

- CV

- 3010

- N

- BN, 2019 WL 652462, at *1 (N.D. Tex. Feb. 15, 2019)

. In Wilder

, the lender brou gh t a counterc laim seeking a dec lar atory j udgment

aut horizing foreclosure in the borrower ’ s suit involving a claim that Rul e 736 was unconstitutional

. Id

. After reviewi ng both Reddick and Steptoe , the Wilder court

c oncluded that10

while Texas courts have he ld that a le nder may not as s er t a Rule 736 counterclaim in a borrower ’ s su it against it

— a nd, conversely, a borrower may not assert a count erclaim in a lender ’ s Rule 736 proceeding

— that authority does not seem to sup port Wilder ’ s argument that Caliber ’ s p ro po sed counte rclaim may not b e add ed

. . . . Id

. at *3. E ven though very few cases address t his argument directly for procedural

reasons , it is not uncommon to fin d cases where a lender has brought a counterclai m seeki ng a declaratory judgment aut hori zing for ec losu re in the borr owe r ’ s suit

. Gaber v. U.S. Bank Nat ’

l Ass ’ n , No. 02

- 1 9

- 00243

- CV, 2020 WL 5242419, at *2 (Tex. App.

— Fort Wo rth Sept. 3, 2020, pet. denied) (mem. op.) (holding tha t borrower had failed to preserve argumen t that lender was barred from bringing fo reclosure co unt erc laim in borrowe r’s suit again s t lender); De La Garza v. Ban k of N

. Y

. Mellon , No. 02

- 17

- 00427

- CV, 2018 WL 5725250, at *10 (Tex. App.

— Fort Worth Nov. 1, 2 018, no pet.) (me m. op.) (holding that le nd er h ad failed to meet its traditional summary judgment bur den regarding its countercla i m for foreclosure and remanding to trial court for further proceedings) ; see also Koncak v. Deutsche Bank Nat ’ l Tr. Co. , No. 3 :19

- CV

- 00071

- B

- BT, 2020 WL 5219558, at *4 ( N.D. Tex. Aug. 17, 2020), report and recommendation ado pte d, No. 3:19

- CV

- 00071

- B

- BT, 2 0 20 WL 5215128 (N.D. Tex. Sept. 1, 2020) (“ As

. . . Plaintiffs do not ot herwise argue that Defendants have failed to state a [c ounter]claim for judicial foreclosure, Pl aintiffs ’ R ule 12(c) Motion [to dismiss Defendants’ count erc lai m for judic ial fore closur e ] shoul d be denied.”). We hold that11

a lender may bring a counterclaim for judicial foreclosure in a borrower ’ s suit against

t he lender

. 2. Carrington ’ s Authority t o Bring its Counter claim T he Kerrs also a rgue that Carri ngt on did not hav e the aut horit y , as the loan servicer, to bring a claim for declaration that it was en titled to for eclo se the security in strument and sell th e property due to default. Wit hout citing any authority, t he Kerrs claim that a “ party bringing a pe rmi ssib le coun terc l aim would need to own the loan and lien which are in dispute. ” We conclude that the Kerrs have waived this arg ument for our review , but even if the Ker rs had pres erved this argume nt, it is with out merit

. To present an issue for appe lla te r eview, “[t ]he brief must contain a clear and

conc ise argumen t for the c ontentions made, with appropriate citations to authorit ies and to the record.” Tex. R. App. P. 38.1(h)

. T his requirement i s not satisfie d by merely uttering brief conclusory st ate men t s unsuppor ted by legal citations. Va ladez v. Avitia , 238 S.W.3d 843, 8 45 (Tex. App.

— El Paso 2007, no pet.). Failure to cite legal authority or provide substantive an alysis of t he legal issue pr esented result s in waiver of the complaint. Id

. ; Sist er Ini t iative, LL C v. Broughton Maint. Ass ’ n , No. 02

- 19

- 00102

- CV, 2020 WL 7267 85, at *25 (Tex. App.

— Fort Worth Feb. 13, 2020, pet. de nied) (mem. op.)

. But even assuming that the Kerrs p reserved this po rtion of their first point for

our review, w e conclude tha t C a rrington h ad the auth ority to bring its counter claim12

on behalf of BoNYM sta te bank. An agent may sue on behal f of its princip al if it is authorized to do so and asser ts it is do ing so in its pleadings. Rodarte v. Investec o Grp., L

. L

. C

. , 2 99 S.W.3d 40 0, 407 (Tex. App.

— Houston [14th Dist.] 2009, no pet.) ( reasoning that agent ma y br ing claims on behalf of principal if authorized to do so); AVCO Corp. v. Interstate Sw., L td. , 251 S.W.3 d 632, 653 (Tex. A p p.
— Houston [14th Dist.] 2007, pet. denied) ( reas oni ng that pleadings mu st show agent bring ing claim on behalf of principal). Here, th e trial court found in its findin gs of fact that Carrington began servicing the loa n on August 16, 2017, on behalf o f BoN Y M state ba nk by written agreement granting it th e a uth ority to service the loan

. This is consistent with Carri ngton ’ s pleadings and the evidence presen ted at trial

. Thus, Carrington prop er ly pleaded it was counterclaiming on beha l f of BoNYM state bank, and the evi dence and applicable law establish es i t h ad the authority to do so. See Rodarte , 299 S.W.3d at 407

. We overrule this portion of the Ke rr s ’ first poin t . 3 . Statute of Limitati ons Again citing Reddick , 2017 WL 6343 5 4 3, at * 4 , and also Pettit v. U.S. Bank N ational A ssociation , No. 4:17

- CV

- 0 0 274

- O

- BP, 2018 WL 4076512, at *4 (N.D. Tex. June 28, 2 018) , the Kerrs argue that allowing Carri ngton to bring its counterclaim in this suit is c ontrary to the tolling principles regar d ing the statute of limitations discus sed in those cases. I t appears tha t the Ker rs are suggesting that because t hey initiat ed this suit after a Rule 736 proceeding had been brought, then all actions exc ept13

for their filing of this suit are i m permissible , i ncluding Carri ngton ’ s counterclaim. T he Kerrs seem to ar gue that to al low Ca rri ngton to bring its counterclaim in this suit would effectively end the to lling of the statute of lim itations. We disagree. Although b oth Reddick a n d Pettit discu ss t hat when a borrower brings suit after the ini tiation of a Rule 736 proceeding, t hen th e f iling of the borrow er ’ s suit tolls the statute of limitation s while the suit is pending , these cases do not st and for the proposition that tolling c e ase s if a lender br ings a counterclaim in a suit brough t by the b orrowe r . Reddick , 2017 WL 6343 54 3, at * 4 ; Pe ttit , 2018 WL 40765 12, at *4

. As Reddick and Pettit explain ed, the statute of limit ation s is tolled and “ prev ents foreclosure unde r Texas R ule of C i vil P rocedure 736 ” while the borrower ’ s suit is being prosecute d. Redd

ick , 2017 WL 6343 543, at * 4 ; Pettit , 20 18 WL 4076512, at * 4

. The se cases simply say nothing about the effect of a lender ’ s bring ing a counterclaim in a borrower ’ s suit and the impact tha t woul d have on toll ing the statute of limitations. No matter w hat clai ms are involved in th e borrow er ’ s su it, limitations

wou ld stil l be tol led until the case and all c laims have been resolved

. See Lehmann v. Har

– Con Corp. , 39 S.W.3d 191, 200 (Tex. 2001 ) ( concluding that judgment is not final unless it disposes of a ll claim s against all parties ). We concl ude that t he Kerr s ’ limitations argument i s unpersuasive , and we overrule it and th e Kerrs ’ first point entirely.14

B. Registration Requirements and th e Texas Debt Collection Act In their second point, the Ker rs a rgue tha t the trial court “ e rred in gran ti n g jud gme nt for Appellees, be cause the evidence established that there was an absence of standing and/or that there were outstanding fact issues on at least one element of each outstanding claim, including the coun terclaim

. ” 7 We disagree. 1 . The Tex a s E stat e s Code and Business Orga nizati on s Code In part of their second point, the Kerrs claim that BoNYM trust company and B oNYM state b a nk were barred from taking any action related to the security i ns trumen t, incl uding defending or prosecuti ng claim s in t h e tri al cou rt, because BoNYM trust company and B oNYM state bank failed to comply wit h the registration requirements of T exas Estates C o de Section 505.004 and Texas Business

7 E ven though t he Kerrs ’ se cond point claims that t h e r e are fact issues “ on at least one element of each outstanding claim, ” the Kerrs have not asserted i n their brief that there i s an outstanding fact issue on any element of their breach

- of

- contract claim.15

O rganizations Code Section 9 .001( a) ; thu s, they lacked standing 8 to defend t his s u i t and bring Carrington ’ s count erclaim

. 9 Chapter 505 of the Texas Estates Code governs service of process on foreign

cor p orate fiduciaries. See U.S. Bank Nat’l Ass’n v. TFHSP LLC Series 6481 , 487 S.W.3d 715, 71 6, 719

– 21 (Tex. App.

— For t Wo rth 2016, no p e t.). Before a foreign corporate fid uciary may qualify or serve as a fiduciary in Texas, Chapter 505 requires it to file c e rtain documents with the Texa s Secretary of State. Id . at 718

– 19. Her e, the Kerrs allege that BoNYM trust compan y an d BoNYM stat e b ank failed to comply with these regi stration requirements and therefore are “barred from defending, or from prosecuting cl a ims in, the Prior Suit ( a R u le 736 Proceeding) and in the instant suit. ” But even assumin g BoNYM trust co mpany or BoN YM state

8 While the Kerrs ref

er to this as an issue of s t a n ding, they are actually complain ing about BoNYM trust company ’ s and B oN YM state bank ’ s capacity. See , e.g. , Austin Nu rsing Center, Inc. v. Lovato , 171 S.W.3d 845, 848 (Tex. 2005) ( explaining that standing focuses on whether a p a rty has a sufficient relat i o n ship with the lawsuit so as to have a “ justiciable inter est ” in its o utcome while the issue of capac ity “ is conceive d of as a procedural issue dealing with the personal qualifications of a party to litigate ” ).

9 The Kerrs did f

i le a plea in abatement in t h e trial court identifying these alleged defects. However, a s Appellees point out, th e Ker rs never presented any evidence in support of their ple a , they did not set it for hearing, nor did they ever request a rul ing. Thus, it i s arguab l e that the Kerrs ha v e waived this complaint. See In re Truck Ins. Exch

. , No. 12

- 12

- 00183

- CV, 2013 WL 1760793, at *2 (Tex. App.

— Tyler Apr. 24, 2013, orig. pr oceeding) (mem. op.) (“A defendant who merely presents its plea in abatement w ithout offe r ing evid e nce to prove the gr o unds urged waives the plea unless it can demonstrat e that the plaintiff’s petitio n establishes the grounds urged in the plea.”). We will assume without deciding that the Kerrs have preserved this argument for our r eview.16

ban k w ere required to register wit h the Texas Secretary of State under Texas Estates Code Chapter 505, the Kerrs failed t o present any evidence in t he trial court that they had not done so. S ee Caballero v. Rushmore Lo an Mgmt. Servs. LLC , No. 05

- 19

- 00298

- CV, 2 0 20 WL 1685418, at *6 (Tex. A pp.
— Dallas Apr. 7, 2020, no pet.) (mem. op.) (“Even if U.S. Bank and Wilmington were r e quired to register with the Secretary of State, no evidence shows they have not done so.”). Thus, the Kerrs did n ot prove the ir Chapter 5 05 argument in the trial court, and their code

- based argument fails on appeal. See Grady v. Nationstar Mortg., LLC , N o. 02

- 19

- 00006

- CV, 2020 WL 5242 418, at *7 (Tex. App.

–– Fort Worth Sep. 3 , 2020 , pet. denied ) (mem. op.) (overrul ing argument on appeal that b a nk was required to register with the Secr etary of State under Chapter 505 because appellant did not present evidence at trial o f bank’s alleged failure to register). Like Chapter 505 of the Texas Estates Code, Texas Business Organizations Code Chapter 9 requires “a foreign entity” transacting business in Texas to file certain documents. Tex. Bus. Orgs. Code Ann. § 9.001(a). T h e Kerrs contend that BoNYM

trust com pany and BoNYM state bank failed to comply with these registrat ion requirement s as well an d t hus lacked the authority to seek foreclo sure on the Bedford property. But this court has held that the failure to comply with the registration requirements in Business Organizations Code Se ction 9. 001 do es not prevent holders in due course from filing su i t or enforcing the terms of a negotiable instrument, nor do they prohibit a mortgagee from enforcing a mortgage lien. Grady , 2 020 WL17

5242418, at *7. Therefore, this code

- based argument fails as we ll because even if BoNYM tru st company or B oNYM state b an k failed to file documents in accordance with Chapter 9, such a failure would not prevent them from fil ing suit to enforce the

t erms of the security instrument in this case. See id

. We overrule th is portion of the Kerr ’ s seco nd point. 2 . The Texas D eb t Co llection Act and Damages In the remainder o f their second p oint, the Kerrs arg ue that there is no evidence that BoN Y

M state bank owned their loan ; t hus, the Kerrs argue that the trial

cou rt erred by dismissing their TDCA c laim and granti ng Carringto n ’ s counterclaim

. Specificall y, th e Kerrs ar gue t hat any attemp t by BoNYM trust company was an attempt to collect a debt n ot owed to it and therefore a threat to take an action that

was a per s e v

iolati on of Section 392.301(a)(8 ) of the T DCA. The Kerrs ’ ar g ument is predi cated on their c ontention that the prior Rule 736 filings were brought by someone other tha n BoNYM trust company. Appellees respond that the Ke rrs ’ argument fails for t wo reasons: (1) The Ke rrs never sued BoNYM tr ust company or Carringto n f or v iolating Section 3 92.3 01(a ) (8) , and (2) there is no such thing as a per se violation of the TDCA

— the Kerrs we re

re quired, but failed , to show they suffered d am ages as a result of any alleged TDCA violat ion. We a gree with Appellees that the Ke rrs we re required but f ailed to plead and prove that they suffered d amages under the TD C A

.18

The TDCA is the statutory embodiment of common law concerning

unrea sonable collection pract ices and prohibits use of deceptive means, making mis representations , har assment , a nd threats in the course of collecting a consumer debt. See T ex . F in . C ode A n n. §§ 392.301 (a)(8), 392.3 02(4), 392.303(a)(2), 392.304(a)(8), (a)(19). To state a claim under the TD CA, a plaint iff must allege that: (1) th e debt at issue is a consu mer deb t; (2) the d efendant is a “debt collector” within the meaning of the TDCA; (3) t h e defendant committed a wro ngful act in violation of the TDCA; (4) the wrongful act was committed agai nst the plai ntiff; and (5) the plaintiff was i njured as a res ult of the d ef e ndant ’ s wro ngful act

. See id . § 392.001 et seq
. To maintain an action for damages under the TDCA, a plaintiff must plead and prove actual damages

. See Jackson Law Office, P.C . v. Chappell

, 37 S.W.3d 15, 31 (Tex. App.

— Tyle r 2000, pet. den ied) ( “Becau s e [the plainti ff] did not prove that any actual damages were caused by [the de f endant] ’ s debt collectio n practices, she did not successfully maintain an action under the Act.”); see also Lopez

- Garcia v. Deutsche Bank Nat ’ l Trus t Co. for Argent Sec. Inc. , No. 5 :16

- CV

- 00217 (RCL), 2 0 17 WL 2869430 , at *4 (W.D. Tex. July 5, 2017) (granting summary judgment on t h e plaintiff ’ s TDCA claim because “plaintiff

. . . has presented no evid ence of the actual damages upo n which

recov ery under the TDCA must b e bas ed”) ; W ood v. CitiMortgage

, Inc. , No. 4:11

- CV

1 39, 2012 WL 642791, at *4 (E.D. Tex. Feb. 28, 2012) (granting de f endants ’ motion for summar y judgment on plaintiffs ’ TDCA claims where “ there is no evidence of any da mages or that they were caused by any viola tion of these statutes”); Naranjo v.19

Unive rsal Sur. of Am. , 679 F. Supp. 2d 787, 801 (S.D. Tex. 2010) ( “Texas c o urts have

stat ed that a plaintiff who cannot prove actual damages canno t ‘successfully ma intain

an act ion under the [

TDCA] .’ ” (quoti ng Jack son Law O ffi ce , 37 S.W.3d at 30

– 31)). B ecause the Kerrs did not plead or prove that any ac tual damages were caused b y the prior Rule 736 proceedings, they did not successfully maintain th eir action under the T DCA. See Jackson Law Office , 37 S.W.3d at 15

. We over rul e th e K errs ’ second point

e ntirely. IV. C ONCLUSION Having overruled both of the Kerrs ’ points on appe a l, we affirm the trial

court ’ s judgment

. /s/ Dana Womack Dana Womack Justice Delive red: April 15, 2021