Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-12-00817-CV

DTND SIERRA INVESTMENTS, LLC,

Appellant

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee for Ameriquest Mortgage 

Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2005-R6,

Appellee

From the 57th Judicial District Court, Bexar County, Texas

Trial Court No. 2011-CI-10858

Honorable Antonia Arteaga, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Sandee Bryan Marion, Justice

Marialyn Barnard, Justice

Luz Elena D. Chapa, Justice

Delivered and Filed: August 21, 2013

AFFIRMED

This is an appeal from the trial court’s order granting appellee Deutsche Bank National 

Trust Company’s (“Deutsche”) motions for traditional and no evidence summary judgment in a 

suit involving foreclosure of real property. On appeal, appellant DTND Sierra Investments, LLC 

(“DTND”) contends the trial court erred in granting summary judgment because Deutsche’s lien 

on the property is subordinate to DTND’s lien. We affirm the trial court’s judgment.
04-12-00817-CV

BACKGROUND

Jerry and Yolanda Davila obtained title to “the property” from Thomas Kraege. In 2005, 

the Davilastook out a home equity loan against the property from Ameriquest Mortgage Company.

The loan was secured by a Texas Home Equity Security Instrument dated May 2005, and was used 

to pay the mortgage with CitiMortgage. In February 2009, Ameriquest assigned the lien to 

Deutsche.

After taking out the home equity loan, the Davilas fell behind on the payment of their 

homeowners’ association (“HOA”) assessments. In July 2010, the HOA foreclosed on the 

property and recorded a trustee’s deed. The trustee’s deed conveyed title to the property to the 

HOA, the Apple Creek Homeowner’s Association. In June 2011, the HOA conveyed its interest 

in the property to DTND.

The Davilas also defaulted on their home equity loan. Pursuant to a court order, Deutsche 

proceeded with a foreclosure sale of the property. On October 4, 2011, Deutsche foreclosed its 

lien and acquired title to the property. On October 14, 2011, Deutsche recorded a foreclosure sale 

deed reflecting its acquisition of title.

DTND sued Deutsche to quiet title to the property. Deutsche filed traditional and no 

evidence motions for summary judgment, which the trial court granted. DTND then perfected this 

appeal.

ANALYSIS

On appeal, DTND argues the trial court erred in granting Deutsche’s motions for summary 

judgment and finding Deutsche’s lien on the property was superior to DTND’s lien. In the 

alternative, DTND contends this court should review all motions for summary judgment, including 

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its partial motion for summary judgment which the trial court did not rule on, and either remand 

the case or decide any remaining issues as a matter of law.

Standard of Review

A party may move for both traditional and no evidence summary judgment. Binur v. 

Jacobo, 135 S.W.3d 646, 650 (Tex. 2004); Strandberg v. Spectrum Office Bldg., 293 S.W.3d 736, 

738 (Tex. App.—San Antonio 2009, no pet.). We review a trial court’s grant of summary 

judgment, both traditional and no evidence, de novo. See Valence Operating Co. v. Dorsett, 164 

S.W.3d 656, 661 (Tex. 2005); Strandberg, 293 S.W.3d at 738. When a party submits both 

traditional and no evidence summary judgment motions, we review the no evidence motion first. 

Ford Motor Co. v. Ridgeway, 135 S.W.3d 598, 600 (Tex. 2004). If the no evidence motion 

disposes of the claims, then we need not review the traditional summary judgment motion. Id.

A no evidence motion for summary judgment under Rule 166a(i) of the Texas Rules of 

Civil Procedure is essentially a motion for a pretrial directed verdict. See TEX. R. CIV. P. 166a(i); 

Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). After an adequate time for 

discovery, a party without the burden of proof may, without presenting evidence, seek summary 

judgment on the ground that there is no evidence to support one or more essential elements of the 

nonmovant’s claim or defense. TEX. R. CIV. P. 166a(i); All Am. Tel., Inc. v. USLD Commc’s, 291 

S.W.3d 518, 526 (Tex. App.—Fort Worth 2009, pet. denied). The motion must specifically state 

the elements for which there is no evidence. TEX. R. CIV. P. 166a(i); Timpte Indus., Inc., 286 

S.W.3d at 310; All Am. Tel, Inc., 291 S.W.3d at 526. The trial court must grant the motion unless 

the nonmovant produces more than a scintilla of summary judgment evidence that raises a genuine 

issue of material fact. TEX. R. CIV. P. 166a(i). More than a scintilla of evidence exists when the 

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evidence “rises to a level that would enable reasonable and fair-minded people to differ in their 

conclusions.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

A traditional motion for summary judgment is granted only when the movant establishes 

there are no genuine issues of material fact, and the movant is entitled to judgment as a matter of 

law. Lesieur v. Fryar, 325 S.W.3d 242, 246 (Tex. App.—San Antonio 2010, pet. denied) (citing 

Browning v. Prostok, 165 S.W.3d 336, 244 (Tex. 2005)). On review, we take evidence favorable 

to the nonmovant as true and indulge every reasonable inference from the evidence in its favor.

Lesieur, 325 S.W.3d at 246 (citing Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.

1997)). In deciding whether there is a material fact issue precluding summary judgment, all 

conflicts in the evidence are disregarded and evidence favorable to the nonmovant is accepted as 

true. Cole v. Johnson, 157 S.W.3d 856, 859 (Tex. App.—Fort Worth 2005, no pet.) (citing Harwell 

v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995)).

Suit to Quiet Title

DTND sued Deutsche to quiet title to the property. Under Texas law, a suit to quiet title is 

an equitable remedy intended to clarify ownership and remove any cloud of title on property. See 

Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 618 (Tex. 2007); Fricks v. Hancock, 45 S.W.3d 

322, 327 (Tex. App.—Corpus Christi 2001, no pet.). A cloud of title exists when an outstanding 

claim or encumbrance, which on its face, if valid, would affect or impair the property owner’s title. 

Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 387–88 (Tex. App.—Houston [1st Dist.] 

2012, pet. denied); Gordon v. W. Hous. Trees, Ltd., 352 S.W.3d 32, 42 (Tex. App.—Houston [1st 

Dist.] 2011, no pet.). If a plaintiff prevails in a suit to quiet title, the court declares invalid or 

ineffective the defendant’s claim to title. Essex Crane, 371 S.W.3d at 387–88; Gordon, 352 

S.W.3d at 42.

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04-12-00817-CV

To prevail in a suit to quiet title, a plaintiff must prove: (1) he has an interest in a specific 

property; (2) title to the property is affected by a claim by the defendant; and (3) the claim, although 

facially valid, is invalid or unenforceable. See, e.g., Vernon v. Perrien, 390 S.W.3d 47, 61 (Tex. 

App.—El Paso 2012, pet. denied); U.S. Nat’l Bank Ass’n v. Johnson, No. 01–10–00837–CV, 2011 

WL 6938507, at *3 (Tex. App.—Houston [1st Dist.] Dec. 30, 2011, no pet.) (mem. op.); Sadler v. 

Duvall, 815 S.W.2d 285, 293, n. 2 (Tex. App.—Texarkana 1991, pet. denied). A suit to quiet title 

relies on the invalidity of the defendant’s claim to the property. Essex Crane, 371 S.W.3d at 387–

88; Longoria v. Lasater, 292 S.W.3d 156, 165 n. 7 (Tex. App.—San Antonio 2009, pet. denied). 

Yet, a plaintiff can only recover on the strength of his or her own title, not on the weakness of the 

defendant’s title. Fricks, 45 S.W.3d at 327 (citing Alkas v. United Sav. Ass’n of Tex., Inc., 672 

S.W.2d 852, 857 (Tex. App.—Corpus Christi 1984, writ ref’d n.r.e.)). The plaintiff has the burden 

of supplying the proof necessary to establish his superior equity and right to relief. Essex Crane, 

371 S.W.3d at 387–88.

In its no evidence motion for summary judgment, Deutsche asserted DTNB could not prove 

one or more essential elements necessary to prevail in its suit to quiet title. Specifically, Deutsche 

claimed there was no evidence that DTND’s lien in the property was superior to Deutsche’s lien, 

and therefore, that Deutsche’s claim was invalid or unenforceable. DNTD’s interest in the property 

stems from the foreclosure of the HOA lien; Deutsche’s interest in the property arises from the 

home equity loan and its corresponding lien, which the Davilas used to pay off the property’s 

mortgage with CitiMortgage.

The HOA lien, from which DTND claims its interest in the property, is subject to the Apple 

Creek Residential Declaration of Covenants, Conditions and Restrictions. Section 6.03 of the 

Declaration states the lien securing HOA assessments:

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“[S]hall be deemed subordinate to a first lien or any other liens of any bank . . . or 

other bona fide, third party lender which may have heretofore or may hereafter lend 

money in good faith for the purchase or improvement of any Lot and any renewal, 

extension, rearrangement, or refinancing thereof.”

DNTD argues its interest in the property is superior to Deutsche’s interest because the HOA 

foreclosure sale, which occurred before Deutsche’s foreclosure of the property, extinguished any 

other liens related to the property. Furthermore, DTND argues the HOA Declaration does not give 

Deutsche a superior interest in the property because it does not apply to home equity loans. As 

evidence, DTND relies on the fact that the HOA Declaration was issued before the Texas 

Constitution legalized home equity loans as a valid indebtedness against homestead property.1 

Therefore, DTND contends the subordination clause should not operate upon a loan that would 

have been an illegal transaction. We disagree.

Article XVI, section 50(e) of the Texas Constitution does not abrogate all equitable 

subrogation rights. LaSalle Bank, 246 S.W.3d at 619. The supreme court has held article 50(e) 

does not destroy the well-established principle of equitable subrogation and has honored equitable 

subrogation claims against homestead property when refinancing, even though unconstitutional, 

was used to pay off valid liens. See id. (citing Benchmark Bank v. Crowder, 919 S.W.2d 657, 661 

(Tex. 1996)).

The record in this case shows that when the Davilas first purchased the property, they 

assumed Thomas Kraege’s mortgage obligations as payment for their own purchase of the 

property, which they later renewed and extended. The Davilas used the home equity loan to pay 

off the original loan they assumed and to pay the mortgage with CitiMortgage. Therefore, even if

the home equity loan was invalid under the Texas Constitution at the time the HOA Declaration 

1 The HOA Declaration was issued on August 15, 1984. The Texas Constitution first permitted home equity lending 

in 1997. See La Salle Bank Nat. Ass’n v. White, 246 S.W.3d 616, 618 (Tex. 2007).

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was issued, we hold the evidence shows Deutsche is entitled to equitable subrogation and allowed 

to step into the shoes of prior lienholders. See LaSalle Bank, 246 S.W.3d at 619–20.

DNTD also contends the subordination clause does not apply in this case because 

Deutsche’s lien was not for the “renewal, extension, rearrangement, or refinancing” of the 

purchased property. However, because the record shows the Davilas used the home equity loan to 

pay the property’s original mortgage obligations, we hold the home equity lien qualifies as “money 

lent in good faith for the purchase of the property,” and for the “renewal, extension, rearrangement, 

or refinancing” of the same for purposes of Section 6.03 of the Declaration.

Finally, DTND contends it has a superior interest on the property because the HOA 

foreclosure extinguished any other liens related to the property. Under Texas common law, 

foreclosure does not terminate interests in the foreclosed property that are senior to the lien being 

foreclosed, and the successful bidder at a junior lien foreclosure takes title subject to the prior liens. 

See Conversion Properties, LLC v. Kessler, 994 S.W.2d 810, 813 (Tex. App.—Dallas 1999, pet. 

denied). Consequently, “[t]he purchaser takes the property charged with the primary liability for 

the payment of the prior mortgage and must therefore service the prior liens to prevent loss of the 

property by foreclosure of the prior liens.” Id.; see also Williams v. Nationstar Mortg., LLC, 349 

S.W.3d 90, 95 (Tex. App.—Texarkana 2011, pet. denied); Atu v. Slaughter, No. 14–06–00771–

CV, 2007 WL 2682198, at *3 (Tex. App.—Houston [14th Dist.] Sept. 13, 2007, no pet.) (mem. 

op.). Therefore, we hold the HOA foreclosure did not extinguish Deutsche’s superior lien on the 

property. See DTND Sierra Investments LLC v. Bank of Am., N.S., 871 F.Supp.2d 567, 575 (W.D. 

Tex. 2012) (holding HOA lien was subordinate to mortgage lien and HOA foreclosure did not 

extinguish superior mortgage lien even though superior lienholder failed to redeem).

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Accordingly, we hold DTND failed to provide even a scintilla of evidence of the essential 

element challenged by Deutsche; DTND was unable to provide any evidence that Deutsche’s claim 

to the property was invalid or improper. In fact, the undisputed evidence shows Deutsche’s lien 

was valid and superior to DTND’s lien. Therefore, we hold the trial court did not err in granting 

summary judgment in favor of Deutsche.2

Other Relief Requested

In its second issue, DTND asks that in the event we sustain the trial court’s grant of 

Deutches’s summary judgment, this court should consider “all motions for summary judgment,” 

including its partial motion for summary judgment the trial court did not rule on, and remand the 

case to the trial court based on the other causes of action raised in the pleadings.

In its first amended petition, DTND raised claims against Deutsche for: (1) cloud on title; 

(2) wrongful foreclosure; (3) deceptive trade practice violations; and (4) common law fraud. 

However, on appeal, DNTB raises only the issue of cloud of title, and thereby waived the other 

three issues. See López v. Montemayor, 131 S.W.3d 54, 61 (Tex. App.—San Antonio 2003, pet. 

denied) (declining to consider issue not raised in appellant’s original brief); see Niera v. Frost 

Nat’l Bank, No. 04–09–00224–CV, 2010 WL 816191, at *3 (Tex. App.—San Antonio Mar. 10, 

2012, pet. denied) (mem. op.) (holding failure to provide appropriate record citations or substantive 

analysis waived appellate issue); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 

284–85 (Tex. 1994) (holding appellate court has discretion to deem issues waived due to 

inadequate briefing); see also TEX. R. APP. P. 38.1. Regarding DTND’s partial motion for 

2 Because we hold the no evidence summary judgment motion disposed of DTND’s claims, we need not review 

Deutsche’s traditional summary judgment motion. See Ridgeway, 135 S.W.3d at 600.

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summary judgment,3 we find the cloud of title claim is subsumed in our discussion of Deutsche’s 

no evidence summary judgment motion, and disposed of in this opinion. Accordingly, we overrule 

DTND’s remaining issues.

CONCLUSION

Based on the foregoing, we affirm the trial court’s grant of Deutsche’s summary judgment.

Marialyn Barnard, Justice

3 Although the trial court did not rule on DTND’s partial motion for summary judgment, we may consider the grounds 

raised in the motion and preserved for review in the interest of judicial economy. See Cincinnati Life Ins. Co. v. Cates, 

927 S.W.2d 623, 626 (Tex. 1996).

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