Steven E. Brown v. Bank of America, N.A. ( 2013 )

AFFIRM; and Opinion Filed November 25, 2013.
SIn The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01382-CV
STEVEN E. BROWN, Appellant
V.
BANK OF AMERICA, N.A., Appellee
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-12-02170
MEMORANDUM OPINION
Before Justices FitzGerald, Francis, and Myers
Opinion by Justice FitzGerald
Appellee Bank of America, N.A. sued appellant Steven E. Brown, seeking a judgment
authorizing a non-judicial foreclosure of a home-equity lien on Brown’s house. The Bank
sought and obtained summary judgment. Brown appeals. We affirm.
I. BACKGROUND
In its live pleading, the Bank alleged the following facts. In February 2008, Brown took
out a home equity loan secured by his house in Coppell, Texas. The Bank was entitled to
enforce the note and security instrument executed by Brown. At the time the Bank filed suit,
Brown was in default and had missed at least twenty-five payments. The Bank sent Brown
notice of default, and he failed to cure. As relief, the Bank sought a declaratory judgment
authorizing a non-judicial foreclosure sale of the property. The Bank did not seek to impose
personal liability on Brown.
Brown answered the lawsuit pro se. The Bank then filed a motion for summary
judgment. The summary-judgment motion was set for hearing on September 10, 2012, and the
record indicates that notice of that hearing was sent to Brown by regular and certified mail on
August 7, 2012. On September 4, 2012, Brown filed a motion for continuance. Brown did not
file a response to the motion for summary judgment. The trial judge heard the motion for
summary judgment on September 10, 2012, and signed a final summary judgment in the Bank’s
favor on that same day.
Brown timely filed his notice of appeal and has prosecuted this appeal pro se.
II. ANALYSIS
A. Standard of review
We review a summary judgment de novo. Smith v. Deneve, 285 S.W.3d 904, 909 (Tex.
App.—Dallas 2009, no pet.). When we review a summary judgment in favor of a plaintiff, we
determine whether the plaintiff established every element of its claim as a matter of law. Ohio
Cas. Ins. Co. v. Time Warner Entm’t Co., 244 S.W.3d 885, 888 (Tex. App.—Dallas 2008, pet.
denied).
B. Issues on appeal
Brown’s arguments fall into three general categories. First, he attacks the summary
judgment on the merits, primarily by attacking the admissibility or competency of the Bank’s
summary-judgment evidence. Second, he argues that the trial judge erred by denying Brown a
continuance of the summary-judgment hearing. Third, he complains that clerk’s record on
appeal was filed late.
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We note that Brown appears to make some new arguments in his reply brief. This is not
permitted, and we will not consider those new arguments. See Sanchez v. Martin, 378 S.W.3d
581, 590 (Tex. App.—Dallas 2012, no pet.).
Brown’s failure to file a response to the Bank’s summary-judgment motion limits the
scope of the arguments Brown can make on the merits of the summary-judgment ruling.
Specifically, he is limited to “an attack on the legal sufficiency of the grounds expressly raised
by the movant” in the motion. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678
(Tex. 1979). No other grounds for reversal may be raised. Id.; see also Teter v. Comm’n for
Lawyer Discipline, 261 S.W.3d 796, 799 (Tex. App.—Dallas 2008, no pet.) (“If the nonmovant
does not file a response to the motion for summary judgment, on appeal he may attack only the
legal sufficiency of the evidence to support summary judgment.”).
1. Attacks on the Bank’s summary-judgment evidence
Within his first issue, Brown attacks the admissibility of some of the Bank’s summary-
judgment evidence. He did not object to any of the Bank’s evidence in the trial court.
Accordingly, any objections to the form of the Bank’s affidavit and attachments have been
waived. See TEX. R. CIV. P. 166a(f); DMC Valley Ranch, L.L.C. v. HPSC, Inc., 315 S.W.3d 898,
905 (Tex. App.—Dallas 2010, no pet.).
The Bank attached six documents to its motion for summary judgment: (1) an affidavit by
Bank of America assistant vice president Stephanie Buchanan, (2) a 1987 deed conveying the
property to Brown, (3) a 2008 home equity security instrument executed by Brown, (4) a 2008
home equity note executed by Brown, (5) an assignment of the note and deed of trust to the
Bank, and (6) a 2010 letter from the Bank to Brown notifying him that his loan was in default.
Brown attacks the Bank’s evidence in several respects. Brown argues that affiant Buchanan
lacked personal knowledge of the matters she testified to, that the assignment was not
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sufficiently authenticated, that the note and the original “title” were not authenticated, and that
two “filed and recorded” stamps appearing in the summary-judgment evidence were not
authenticated.
We address Brown’s attack on the Buchanan affidavit first. He argues that the affidavit
does not demonstrate Buchanan’s personal knowledge of the matters she testified to. In support,
he cites one case from a bankruptcy court in New Jersey, one case from a Florida intermediate
appellate court, and a “consent order” allegedly involving the Bank in some unspecified
jurisdiction. Because Brown cites no applicable Texas authority, we conclude that he has
inadequately briefed his challenge to the Buchanan affidavit. See Navarrete v. Williams, 342
S.W.3d 116, 122 (Tex. App.—El Paso 2011, no pet.) (noting that argument must be supported
with “citation to appropriate authorities”) (emphasis added); see also Dablemont v. Dallas Cnty.
Hosp. Dist., No. 05-00-01659-CV, 2001 WL 1289677, at *1 (Tex. App.—Dallas Oct. 25, 2001,
pet. denied) (mem. op., not designated for publication) (“Failure to cite appropriate authorities
and provide substantive analysis presents nothing for review.”) (emphasis added).
Brown asserts that the assignment of the loan to the Bank was not authenticated, but he
does not support that assertion with citation to any relevant authorities. Instead he quotes
extensively from a 2012 book entitled Clouded Titles, by Dave Krieger. The book itself is not
part of the appellate record, and in any event the passages Brown quotes do not address the
adequacy of the Bank’s authentication of the document whereby the loan was purportedly
assigned to the Bank. Accordingly, nothing is presented for our review. See In re B.A.B., 124
S.W.3d 417, 420 (Tex. App.—Dallas 2004, no pet.) (“The failure to adequately brief an issue,
either by failing to specifically argue and analyze one’s position or provide authorities and record
citations, waives any error on appeal.”). Moreover, Buchanan attempted to authenticate the
assignment document in her affidavit, and Brown did not object in the trial court to the adequacy
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of the authentication. Accordingly, Brown also failed to preserve his objection in the trial court.
See Arnold v. Life Partners, Inc., No. 05-12-00092-CV, 2013 WL 4553379, at *12 (Tex. App.—
Dallas Aug. 28, 2013, no pet. h.) (stating that a complete failure to authenticate a document is a
defect of substance, but a defective attempted authentication is a defect of form). We reject
Brown’s complaint about the authentication of the assignment.
We also reject Brown’s assertion that the original “title and mortgage note” were not
authenticated. Although Brown asserts that the Bank submitted no evidence that the “title and
mortgage note” were authentic, Buchanan authenticated all the documents attached to her
affidavit. If the authentication was defective in any way, that defect was a defect of form that
Brown waived by failing to object in the trial court. See id. The same analysis applies to
Brown’s assertion that the “filed and recorded” stamps that appear on some of the Bank’s
documents were not authenticated. We reject that assertion as well.
Within his authentication argument, Brown also asserts that the Bank was required to
produce the original note and the original security instrument instead of copies in order to
foreclose. As legal authority in support, he cites only four cases from Florida. He cites no Texas
authority to support his argument. We have found two Texas cases stating that production of
original documents is not required. See, e.g., Bierwirth v. BAC Home Loans Servicing, L.P., No.
03-11-00644-CV, 2012 WL 3793190, at *3 (Tex. App.—Austin Aug. 30, 2012, no pet.) (mem.
op.); Hornbuckle v. Countrywide Home Loans, Inc., No. 02-09-00330-CV, 2011 WL 1901975, at
*3 (Tex. App.—Fort Worth May 19, 2011, no pet.) (mem. op.). Brown does not address these
cases, or Texas law at all. We reject his argument as inadequately briefed. See In re B.A.B., 124
S.W.3d at 420; see also Navarrete, 342 S.W.3d at 122 (noting that argument must be supported
with “citation to appropriate authorities”) (emphasis added).
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Finally, Brown argues that the 1987 warranty deed filed by the Bank was “irrelevant and
inadmissible” because it was “not part of the original 121 page Countrywide Bank promissory
note.” He does not otherwise explain why the deed was not relevant. He did not object to the
deed in the trial court, nor does he explain how he could have been harmed by the trial court’s
consideration of the deed on summary judgment. We reject his argument for lack of preservation
and for failure to demonstrate harm. See TEX. R. APP. P. 33.1, 44.1(a); see also Lott v. Lott, 370
S.W.2d 463, 465 (Tex. 1963) (holding that presence of immaterial documents in summary-
judgment evidence was not reversible error).
2. Attacks on the merits of the summary judgment
Brown attacks the Bank’s ownership of the note and deed of trust involved in this case.
Accordingly, we outline the Bank’s evidence of ownership.
The Bank sought to establish its ownership by the following evidence and chain of
events. The Bank filed a 1987 warranty deed in which Wendy Jean Sims deeded the property to
Brown. Brown took out the home equity loan in question in February 2008. The home equity
security instrument, which is part of the Bank’s summary-judgment evidence, identifies
Countrywide Bank, FSB as the lender. The instrument also identifies Mortgage Electronic
Registration Systems, Inc. (MERS) both as “a nominee for Lender and Lender’s successors and
assigns” and as “the beneficiary under this Security Instrument.” The Bank contends that MERS
assigned the note and deed of trust to “BAC Home Loans Servicing, LP,” formerly known as
“Countrywide Home Loans Servicing LP,” in May 2010. The assignment is also part of the
Bank’s summary-judgment evidence. The last link in the chain is supplied by the Buchanan
affidavit, in which Buchanan testifies that “Bank of America, N.A. is Successor by Merger to
BAC Home Loans Servicing, LP formerly known as Countrywide Home Loans Servicing, LP.”
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Brown asserts that the Bank “never legally merged with Countrywide Bank,” but he cites
no record evidence to support this assertion. He presents no argument or authority to show that
the Buchanan affidavit is insufficient to establish the merger. Accordingly, we reject Brown’s
assertion for inadequate briefing. See In re B.A.B., 124 S.W.3d at 420.
Brown also asserts that MERS did not own the note and deed of trust, and that MERS
accordingly could not assign those rights to BAC Home Loans Servicing, LP. But this assertion
is also inadequately briefed. Brown’s argument in support consists of long quotations from the
above-mentioned book Clouded Titles and unsupported assertions that MERS has fared poorly in
litigation in other jurisdictions. Brown does not present a cogent argument, supported with
authorities, demonstrating that the Bank’s evidence in this case is insufficient under Texas law. 1
Accordingly, we reject Brown’s assertion that the Bank failed to prove MERS’s right to assign
the note and deed of trust in this case. See In re B.A.B., 124 S.W.3d at 420.
Brown argues that he never received a notice of default and that this should have
prevented summary judgment. But Brown adduced no evidence to prove that he never received
notice of default, and in any event he waived the argument by failing to raise it in a summary-
judgment response. See Clear Creek Basin Auth., 589 S.W.2d at 678. Brown also asserts that
the Bank adduced no evidence that it sent notice of default to him by certified mail. In support,
he cites a single Florida case for the proposition that proper notice of default is a prerequisite for
foreclosure. Brown cites no authority to show that Texas law required the Bank to send the
notice of default by certified mail. His bald assertion is insufficient to present anything for our
review. See In re B.A.B., 124 S.W.3d at 420.
1
We note that in Bierwirth the Austin Court of Appeals accepted evidence of assignment very similar to the Bank’s evidence in this case.
See 2012 WL 3793190, at *3–4.
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Brown argues that section 51.903 of the Texas Government Code protects him from
foreclosure. He also argues that the Bank has violated various federal statutes regulating debt
collection. He waived these arguments by failing to present them in a summary-judgment
response in the trial court. See Clear Creek Basin Auth., 589 S.W.2d at 678. He then argues that
the Bank has admitted “illegally foreclosing on millions of homeowners,” citing a newspaper
article that is attached to his brief but is not in the appellate record. We cannot consider the
article because it is not in the appellate record. See In re Guardianship of Winn, 372 S.W.3d
291, 297 (Tex. App.—Dallas 2012, no pet.). In any event, Brown’s assertion about other cases
involving the Bank does not demonstrate reversible error in his case. See Intec Sys., Inc. v.
Lowrey, 230 S.W.3d 913, 920 (Tex. App.—Dallas 2007, no pet.) (“The appellant bears the
burden to show a judgment is erroneous to obtain a reversal.”).
3. Continuance
Brown argues that the trial judge erred by denying Brown’s motion for continuance of the
summary-judgment hearing. Our standard of review is abuse of discretion. Moreno v. Silva, 316
S.W.3d 815, 817 (Tex. App.—Dallas 2010, pet. denied). We reject Brown’s argument for
several reasons.
First, Brown does not mention or address the summary-judgment hearing in the motion
for continuance. Rather, he mentions only the trial date, reciting, “This case is presently set for
trial on Tuesday, September 25, 2012.” Accordingly, the motion does not preserve any
complaint about the timing of the summary-judgment hearing. See TEX. R. APP. P. 33.1(a)(1).
Additionally, the appellate record contains no order disposing of the motion for
continuance, nor is there anything in the appellate record showing that Brown brought his motion
to the trial judge’s attention. In the absence of a ruling on his motion for continuance or an
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objection to the judge’s failure to rule, Brown failed to preserve error. See TEX. R. APP. P.
33.1(a)(2).
Moreover, Brown did not furnish us with a reporter’s record. Thus, we cannot review
any evidence that might have been presented at the hearing related to Brown’s continuance
motion. We must presume that the evidence supported the trial judge’s denial of Brown’s
motion for continuance. See Green v. Kaposta, 152 S.W.3d 839, 842 (Tex. App.—Dallas 2005,
no pet.).
Brown’s appellate brief includes a detailed recitation of his oral argument in support of
his motion for continuance, and he urges us to consider that recitation in lieu of a reporter’s
record. But even if we were to accept that recitation as true pursuant to Texas Rule of Appellate
Procedure 38.1(g), we would still conclude that Brown has not shown an abuse of discretion.
Brown asserts that he orally argued his motion for continuance at the hearing and that the trial
judge implicitly denied the continuance by granting summary judgment for the Bank. According
to Brown’s account, his support for the requested continuance was the fact that he had obtained a
copy of the Clouded Titles book on September 6, 2012, which was four days before the
summary-judgment hearing. He argued to the trial judge that the information in the book would
enable him to defeat the Bank’s motion for summary judgment. But the book is not in the
appellate record, nor does Brown aver that he filed a copy of the book or the relevant portions in
the trial court. Brown’s factual recitation of the events of the hearing does not show that he
demonstrated, with evidence, the materiality of the book to his summary-judgment response.
Because Brown failed to submit evidence demonstrating the materiality of the purportedly
previously unavailable summary-judgment evidence, the trial judge did not abuse his discretion
by denying Brown’s motion for continuance. See Nautical Landings Marina, Inc. v. First Nat’l
Bank in Port Lavaca, 791 S.W.2d 293, 297 (Tex. App.—Corpus Christi 1990, writ denied).
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For all these reasons, we reject Brown’s arguments based on his motion for continuance.
4. Late filing of the appellate record
Finally, Brown argues that the clerk’s record in this appeal was filed late. The clerk’s
record was due to be filed in this Court on November 9, 2012, but it was not actually filed until
December 3, 2012. Brown does not explain how he was prejudiced, if at all, by the filing delay.
Nor is it clear what relief he believes the delay entitles him to. He asserts only that the district
clerk should be “held accountable” for the rule violation. He cites no authority that he is entitled
to reversal of the judgment or any other relief on account of the late filing. We conclude both
that the argument is inadequately briefed and that Brown has not shown reversible error in
connection with this argument.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
121382F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
STEVEN E. BROWN, Appellant On Appeal from the 193rd Judicial District
Court, Dallas County, Texas
No. 05-12-01382-CV V. Trial Court Cause No. DC-12-02170.
Opinion delivered by Justice FitzGerald.
BANK OF AMERICA, N.A., Appellee Justices Francis and Myers participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee Bank of America, N.A. recover its costs of this appeal
from appellant Steven E. Brown.
Judgment entered this 25th day of November, 2013.
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
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