Henning, Kenneth v. OneWest Bank FSB , 2013 Tex. App. LEXIS 8124 ( 2013 )

AFFIRM; Opinion Filed July 2, 2013.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00078-CV
KENNETH HENNING, Appellant
V.
ONEWEST BANK FSB, Appellee
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-10-16465-L
OPINION
Before Justices Lang, Myers, and Evans
Opinion by Justice Lang
Appellant Kenneth Henning challenges the trial court’s summary judgment in favor of
appellee OneWest Bank FSB (“OneWest”) in a dispute respecting a residential mortgage loan.
Specifically, Henning asserts in twelve issues1 that the trial court erred by granting OneWest’s
(1) traditional motion for summary judgment on OneWest’s “foreclosure action” and (2) no-
evidence motion for summary judgment on Henning’s claims against OneWest pertaining to
OneWest’s status as “holder” of the note in question, common law and statutory fraud, filing a
fraudulent lien, negligent misrepresentation, violation of the Texas Debt Collection Practices Act
and the Texas Deceptive Trade Practices Act, breach of contract, exemplary damages, and
declaratory and injunctive relief.
1
In the table of contents and list of “Issues Presented for Review” in his amended brief in this Court, Henning lists eleven issues for review.
However, in the argument section of his brief, he asserts and argues twelve issues.
We decide against appellant on his twelve issues. The trial court’s judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
The record shows that in 2005, Henning obtained a mortgage loan (“the loan”) from
Willow Bend Mortgage Company for the purchase of a home at 10409 Huffines Drive in
Rowlett, Texas (“the property”). In connection with the loan, Henning signed a December 22,
2005 promissory note (“the note”) payable to Willow Bend Mortgage Company. Additionally,
to secure repayment of the debt evidenced by the note, Henning executed a deed of trust (“the
deed of trust”) granting a security interest in the property.2
On June 30, 2010, Henning signed a “Loan Modification Agreement” (the “loan
modification agreement) which stated that it “amends and supplements” the note and deed of
trust. In the loan modification agreement, Henning agreed that the amount payable under the
note and deed of trust was $308,804.88 and promised to repay that amount, plus interest, to
“IndyMac Mortgage Services, a division of OneWest Bank, FSB,” in specified payments.
In a letter to Henning dated October 19, 2010, IndyMac Mortgage Services notified him
that (1) the loan was in “serious default,” (2) he could cure the default by submitting the
specified amount due by certified mail on or before November 20, 2010, and (3) failure to cure
the default could result in foreclosure. On December 22, 2010, Henning filed this lawsuit against
OneWest, asserting the claims described above.
OneWest filed a general denial answer and a counterclaim for foreclosure. In its
counterclaim, OneWest asserted in part
One West or its successor in interest is the holder of the Note and a lien on the
Property securing the payment of the Note and is entitled to enforce the Note and
2
Willow Bend Mortgage Company was named as the “lender” in the deed of trust. The “beneficiary” under the deed of trust was Mortgage
Electronic Registration Systems, Inc. (“MERS”), described in the deed of trust as “a separate corporation that is acting solely as a nominee for
Lender and Lender’s successors and assigns.”
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Deed of Trust in accordance with the terms of the Note, Deed of Trust, and
applicable law.
Henning filed a general denial answer to OneWest’s counterclaim.
On November 18, 2011, OneWest filed a traditional motion for summary judgment on its
counterclaim for foreclosure and a no-evidence motion for summary judgment on all of
Henning’s claims. In its traditional motion for summary judgment, OneWest stated in part
In his Petition, Henning asserts that OneWest is not the holder of the Note, and, as
such, could not enforce the Note. This Court should grant final summary
judgment for OneWest because OneWest can conclusively establish the existence
of a valid note, the chain of title on that note, Henning’s liability to OneWest for
the debt evidenced by the note, and Henning’s default on the note. Therefore,
OneWest is entitled to final judgment in its favor as a matter of law.
The evidence attached to OneWest’s traditional motion for summary judgment included an
affidavit of OneWest manager Rebecca Marks in which she stated in part (1) a “true and correct
copy” of the note is attached, (2) Henning’s signature is on the note, (3) payment of the note is
secured by the deed of trust, (4) “OneWest Bank, FSB is in possession of the original Note, is the
current holder of the Note and Deed of Trust, and is entitled to enforce the Note and Deed of
Trust and to collect all sums due thereunder,” (5) “Henning defaulted on the Note and Deed of
Trust by failing to make payments as they became due,” (6) “Movant mailed to Henning a
written Notice of Default informing Henning of Movant’s intent to accelerate the remaining
installments under the Note if the default in payments were not timely cured,” (7) “[t]he default
was not cured, and a Notice of Acceleration was sent on behalf of Movant” and (8) “the sum of
$324,143.86 is due and owing on the Note.” Copies of the note, deed of trust, loan modification
agreement, and documents pertaining to Henning’s payment history were attached to Marks’s
affidavit. The copy of the note showed an endorsement by Willow Bend Mortgage Company to
“IndyMac Bank, F.S.B.” and, below that endorsement, an endorsement in blank by “IndyMac
Bank, F.S.B.”
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On December 12, 2011, Henning filed two responses to OneWest’s summary judgment
motions, one titled “Objection and Response to Defendant’s Motion for Summary Judgment”
and one titled “Response to Defendant’s No-Evidence Motion for Summary Judgment.” In his
“Objection and Response to Defendant’s Motion for Summary Judgment,” Henning asserted
OneWest “has failed to establish its claim of foreclosure.” Specifically, Henning argued in part
(1) “[t]he Note was not signed in favor of Indymac [or] OneWest”; (2) Henning entered into a
loan modification agreement with OneWest that he relied on and OneWest did not honor; and (3)
OneWest prepared and produced documents, including an assignment recorded in Dallas County,
that were signed by a “notorious robo-signer” and such documents are invalid and “probative, if
not indicative of [OneWest’s] intent to mislead and rely on fraudulent documents.” Further,
Henning contended OneWest “failed to establish default” because (1) “[OneWest’s] own
documents reflect confusion and misrepresentations regarding its claim of default”; (2) “the
incorporated obligation that [OneWest] undertook created specific actions that it must undertake
in the event of a default” and “[u]nder this analysis, missing payment(s) cannot be a material
breach under the terms of the contract, since the contract specifically imposes obligations on
mortgagees and loan servicers in the event of arrearage prior to acceleration and foreclosure”;
and (3) the “guidelines” governing Henning’s loan provide that OneWest “is to maintain
payments to Fannie Mae, despite [Henning’s] failure to make them” and “[u]nder those terms,
there can be no default if the mortgage payments continued to be made by OneWest to Fannie
Mae.” Henning’s “Objection and Response to Defendant’s Motion for Summary Judgment”
listed twenty exhibits purportedly “attached” as summary judgment evidence. However, the
record does not show any attachments to that document.
In his response to OneWest’s no-evidence motion for summary judgment, Henning
contended in part that OneWest’s no-evidence motion “raises only conclusory objections and,
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without more specific challenges, is improper.” Additionally, Henning restated the arguments
described above and asserted, inter alia, (1) OneWest “has failed to establish it is the valid
holder of the Note”; (2) “OneWest’s actions, contradictions and miscommunications regarding
payment arrangements and amounts owed reflect a pattern or practice intended to mislead
[Henning]”; (3) communications between Henning and OneWest reflect “lack of reasonable
care,” “confusing and contradictory information regarding [Henning’s] loan balance, amounts
owed and payment arrangements,” and Henning’s reliance; (4) OneWest utilized deceptive
means to collect the debt in question and deceptive trade practices respecting services
independent of the original mortgage loan; (5) Henning has properly brought a cause of action
under the Texas Declaratory Judgment Act based on his contentions that OneWest “is a stranger
to and possesses no rights or status” in regard to the note and “must be enjoined from their
unlawful attempts to evict or otherwise disturb the quiet enjoyment of [Henning’s] property”;
and (6) Henning will suffer irreparable harm without the injunctive relief sought. Evidence cited
in and attached to Henning’s response to OneWest’s no-evidence motion for summary judgment
included the same twenty exhibits listed in his “Objection and Response to Defendant’s Motion
for Summary Judgment.” Among those exhibits were an affidavit of Henning, documents and
correspondence pertaining to the loan in question, and assignments of the note and deed of trust.
The trial court signed an order dated December 21, 2011, granting OneWest’s no-
evidence motion for summary judgment as to all of Henning’s claims.3 Additionally, the trial
court signed a December 21, 2011 “Final Judgment” in which it granted OneWest’s traditional
motion for summary judgment and ordered that, due to default by Henning, OneWest is entitled
3
In its order, the trial court stated it had considered the evidence “on file at the time of the hearing.” However, the record in this Court
contains no reporter’s record of any hearing on OneWest’s summary judgment motions. Henning states in his appellate brief that “[t]here was no
Reporter’s Record of the Summary Judgment hearing before the Trial Court.”
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to foreclose its security interest in the property or proceed with non-judicial foreclosure of its
lien. This appeal timely followed.
II. SUMMARY JUDGMENT
A. Standard of Review
We review a trial court’s decision to grant or deny a motion for summary judgment de
novo. See Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex.
2007); Mid-Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007); Beesley v.
Hydrocarbon Separation, Inc., 358 S.W.3d 415, 418 (Tex. App.—Dallas 2012, no pet.). We
consider the evidence in the light most favorable to the nonmovant and resolve any doubts in the
nonmovant’s favor. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
844, 848 (Tex. 2009); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).
Where, as here, the trial court’s order granting summary judgment does not specify the basis for
the ruling, we must affirm the trial court’s judgment if any of the theories advanced are
meritorious. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); Carr v. Brasher, 776
S.W.2d 567, 569 (Tex. 1989); Green v. McKay, 376 S.W.3d 891, 898 (Tex. App.—Dallas 2012,
pet. denied). Further, with the exception of an attack on the legal sufficiency of the grounds
expressly raised by the movant in his motion for summary judgment, the nonmovant must
expressly present to the trial court, by written answer or response, any issues defeating the
movant’s entitlement to judgment in order to preserve an issue for appeal. See McConnell v.
Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993); Young v. McKim, 373 S.W.3d
776, 784 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).
The standard of review for a traditional summary judgment is well known. See Nixon,
690 S.W.2d at 548; Green, 376 S.W.3d at 897. The movant has the burden to demonstrate that
no genuine issue of material fact exists and it is entitled to judgment as a matter of law. TEX. R.
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CIV. P. 166a(c); Nixon, 690 S.W.2d at 548–49. A fact is material if it affects the ultimate
outcome of the lawsuit under the governing law. See Pierce v. Wash. Mut. Bank, 226 S.W.3d
711, 714 (Tex. App.—Tyler 2007, pet. denied). If the movant satisfies its burden, the burden
shifts to the nonmovant to preclude summary judgment by presenting evidence that raises a
genuine issue of material fact. Affordable Motor Co., Inc. v. LNA, LLC, 351 S.W.3d 515, 519
(Tex. App.—Dallas 2011, pet. denied).
A party seeking a no-evidence summary judgment must assert that no evidence exists as
to one or more of the essential elements of the nonmovant’s claim on which the nonmovant
would have the burden of proof at trial. See TEX. R. CIV. P. 166a(i). “The motion must state the
elements as to which there is no evidence.” Id. Once the movant specifies the elements on
which there is no evidence, the burden shifts to the nonmovant to raise a fact issue on the
challenged elements. See id.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).
We review a no-evidence motion for summary judgment under the same legal sufficiency
standard used to review a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–
51 (Tex. 2003); Flood v. Katz, 294 S.W.3d 756, 762 (Tex. App.—Dallas 2009, pet. denied). Our
inquiry focuses on whether the nonmovant produced more than a scintilla of probative evidence
to raise a fact issue on the challenged elements. See King Ranch, 118 S.W.3d at 751; Flood, 294
S.W.3d at 762. Evidence is no more than a scintilla if it is “so weak as to do no more than create
a mere surmise or suspicion” of a fact. King Ranch, 118 S.W.3d at 751.
B. Analysis
1. OneWest’s Traditional Motion for Summary Judgment
In his first issue, Henning contends the trial court erred by granting OneWest’s traditional
motion for summary judgment as to its foreclosure counterclaim because OneWest failed to
establish (1) a “valid chain of title” respecting the note and (2) that Henning was “in default as a
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matter of law.” According to Henning, an assignment of the note and deed of trust from
IndyMac Bank, F.S.B., to OneWest was signed by “an admitted robo-signer” and therefore
raised fact issues as to the chain of title on the note. Further, as to default, Henning asserts (1)
“[OneWest’s] own documents reflect confusion and misrepresentations regarding its claim of
default”; (2) “the incorporated obligation that [OneWest] undertook created specific actions that
it must undertake in the event of a default” and “[u]nder this analysis, missing payment(s) cannot
be a material breach under the terms of the contract, since the contract specifically imposes
obligations on mortgagees and loan servicers in the event of arrearage prior to acceleration and
foreclosure”; and (3) the “guidelines” governing Henning’s loan provide that OneWest “is to
maintain payments to Fannie Mae, despite [Henning’s] failure to make them” and “[u]nder those
terms, there can be no default if the mortgage payments continued to be made by OneWest to
Fannie Mae.” OneWest responds that the trial court did not err by granting its traditional motion
for summary judgment on its counterclaim because OneWest proved as a matter of law that it
was the note holder and Henning defaulted.
“To recover for a debt due and owing under a promissory note, a party must establish that
it is the legal holder of an existing note, the debtor’s execution of the note, and that an
outstanding balance is due and owing.” Austin v. Countrywide Homes Loans, 261 S.W.3d 68, 72
(Tex. App.—Houston [1st Dist.] 2008, pet. denied). Further, when endorsed in blank, “an
instrument becomes payable to bearer and may be negotiated by transfer of possession alone.”
TEX. BUS. & COM. CODE ANN. § 3.205(b) (West 2002 & Supp. 2012); accord Robeson v. Mortg.
Elec. Registration Sys., Inc., No. 02-10-00227-CV, 2012 WL 42965, at *4 (Tex. App.—Fort
Worth Jan. 5, 2012, pet. denied) (mem. op.); see also Campbell v. Mortg. Elec. Registration Sys.,
Inc., No. 03–11–00429–CV, 2012 WL 1839357, at *4 (Tex. App.—Austin May 18, 2012, pet.
denied) (mem. op.) (“[w]hen a mortgage note is transferred, the mortgage or deed of trust is also
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automatically transferred to the note holder by virtue of the common-law rule that ‘the mortgage
follows the note’”) (citing J.W.D., Inc. v. Fed. Ins. Co., 806 S.W.2d 327, 329–30 (Tex. App.—
Austin 1991, no writ)).
The record shows that the evidence in support of OneWest’s traditional motion for
summary judgment included a “true and correct copy” of the note attached to Marks’s affidavit.
Additionally, Marks stated in part in her affidavit (1) “OneWest Bank, FSB is in possession of
the original Note, is the current holder of the Note and Deed of Trust, and is entitled to enforce
the Note and Deed of Trust and to collect all sums due thereunder,” (2) Henning’s signature is on
the note, and (3) “the sum of $324,143.86 is due and owing on the Note.” On the final page of
the note is an endorsement from Willow Bend Mortgage Company to “IndyMac Bank, F.S.B.,”
and, below that endorsement, an endorsement in blank signed by “IndyMac Bank, F.S.B.”
Henning’s challenge to the note’s “chain of title” is based on his contention that the
assignment described above from IndyMac Bank, F.S.B., to OneWest was signed by a “robo-
signer” and is therefore “fraudulent.” In support of his contention, Henning cites a slip opinion
from unrelated New York litigation involving OneWest where an issue was raised as to the
authority of a “robo-signer” to sign certain documents in that case. See OneWest Bank, F.S.B. v.
Drayton, 910 N.Y.S.2d 857 (N.Y. Sup. Ct. 2010). This same “robo-signer” is alleged by
Henning to have signed an affidavit in his bankruptcy. Henning continues his argument, stating
this same purported “robo-signer” is the person who, in this case, signed “the Assignment of
Note and Deed, purporting to transfer title to OneWest,” that was recorded in Dallas County.
Henning makes the conclusory statement that the affidavit filed in his bankruptcy “is at the very
least probative, if not indicative of Defendant OneWest’s intent to mislead and rely on fraudulent
documents.” However, Henning identifies no evidence in the record, and we have found none,
that disputes the evidence presented by OneWest that (1) the note was endorsed in blank and (2)
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as stated in Marks’s affidavit, OneWest was in possession of the original note. We conclude the
record shows no genuine issue of material fact respecting the “chain of title” on the note. See
TEX. BUS. & COM. CODE ANN. § 3.205(b); Robeson, 2012 WL 42965 at *4–*5; see also TEX. R.
CIV. P. 166a(c).
As to default, we address Henning’s three arguments in turn. First, Henning asserts in his
amended brief in this Court that “as [OneWest’s] own documents reflect confusion and
misrepresentations regarding its claim of default, at the very least, the evidence presented to the
trial court raised genuine issues that should have precluded summary judgment.” This same
argument was asserted in Henning’s “Objection and Response to Defendant’s Motion for
Summary Judgment” in the trial court, with citation to “Exhibits H, I, J, & L.” However, as
described above, no evidence was attached to that response.
In his amended brief in this Court, Henning cites no authority for this argument. Further,
the only purported evidence he cites are the following documents attached to his “Response to
Defendant’s No-Evidence Motion for Summary Judgment”: (1) an affidavit by him in which he
describes purported “misinformation” received by him from OneWest by phone and in written
correspondence prior to the filing of this lawsuit, (2) a November 17, 2010, letter from Henning
to IndyMac in which Henning apologizes for “the mix up and delays of payments” and states that
a check is enclosed that “should bring the account current,” and (3) a copy of the October 19,
2010 notice of default described above, on which are included unexplained handwritten notes.
On this record, we cannot conclude Henning raised an issue of material fact in the trial court as
to “confusion and misrepresentation” in “[OneWest’s] own documents” that would preclude
traditional summary judgment on OneWest’s counterclaim.
As part of our analysis of the above point, we note that in his reply brief in this Court,
Henning attempts to amplify his argument made in the opening brief by contending
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OneWest’s Response fails to offer any authority or argument, or to otherwise
dispel its documented practices of misrepresentations and flawed servicing[.]
Such abuses constitute a breach of its duties and obligation, which legally and
equitably bar any claim of default on the part of Henning. (A defendant’s breach
may excuse a plaintiff’s performance and entitle plaintiff to maintain a cause of
action for that breach. See Longview Constr. & Dev., Inc. v. Loggins Constr. Co.,
523 S.W.2d 771, 779 (Tex. Civ. App.—Tyler 1975, writ dis’d by agr.).
The record does not show Henning specifically asserted in the trial court his argument in his
appellate reply brief that OneWest’s alleged “abuses” constitute “a breach of its duties and
obligation, which legally and equitably bar any claim of default.” See McConnell, 858 S.W.2d at
343 (nonmovant must expressly present to trial court, by written answer or response, any issues
defeating movant’s entitlement to judgment in order to preserve issue for appeal). Moreover,
Henning does not explain what “duties and obligation” of OneWest were breached or cite to the
record respecting such “duties and obligation.” See TEX. R. APP. P. 38.1(i) (appellant’s brief
must contain “a clear and concise argument for the contentions made, with appropriate citations
to authorities and to the record”). Consequently, we conclude this argument presents nothing for
this Court’s review.
Second, Henning contends that “[a]s a mortgage servicer, OneWest’s loss mitigation
obligations are expressly incorporated into the contracts of borrowers’ loans, and may be used as
a legal basis to challenge foreclosures.” According to Henning, “the incorporated obligation
OneWest undertook, created specific actions that it must follow in the event of the default” and
“[u]nder this analysis, missing payment(s) cannot be a material breach under the terms of the
contract, since the contract specifically imposes obligations on mortgagees and loan servicers in
the event of arrearage prior to acceleration and foreclosure.” In support of that argument,
Henning cites two cases from other jurisdictions. See Leggette v. Wash. Mut. Bank, F.A., No.
3:03-CV-2909-D, 2005 WL 2679699 (N.D. Tex., Oct. 19, 2005) (mem. op. & order); Wells
Fargo Home Mortg., Inc. v. Neal, 922 A.2d 538 (Md. 2007).
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OneWest responds (1) “[n]either the Note nor the Deed of Trust contain or incorporate
loss mitigation obligations” and (2) “Henning misrepresents the purported authorities he cites.”
In Leggette, Joyce A. Leggette purchased a home in Texas using the proceeds of a loan
obtained from Washington Mutual Bank (“WMB”) and insured by the Federal Housing
Administration (“FHA”). Leggette, 2005 WL 2679699, at *1. To secure the loan, Leggette
executed a deed of trust that provided, inter alia, (1) WMB “may, except as limited by
regulations issued by the Secretary [of the United States Department of Housing and Urban
Development (“HUD”)], in the case of payment defaults, require immediate payment in full” and
(2) “In many circumstances regulations issued by the Secretary will limit [WMB’s] rights, in the
case of payment defaults, to require immediate payment in full and foreclose if not paid.” Id.
Leggette defaulted on the mortgage, and WMB notified her that the loan had been accelerated
and that “her home would be foreclosed on.” Id. Leggette sued WMB in Texas state court,
alleging WMB was liable for wrongful foreclosure based on violations of three federal
regulations respecting mortgage servicing requirements for FHA loans. Id. On WMB’s motion,
the case was removed to federal court based on federal question jurisdiction. Id. Several months
later, Leggette moved the federal court to remand the case to state court. Id. The federal court
concluded WMB had failed to meet its burden to establish Leggette presented a claim that “a
federal forum may entertain without disturbing any congressionally approved balance of federal
and state judicial responsibilities.” Id. at *5. Therefore, the federal court concluded it lacked
subject matter jurisdiction and remanded the case to state court. Id. at *6.
In Neal, Alan Neal executed a “Maryland FHA Deed of Trust” to secure an FHA-insured
loan for the purchase of a dwelling located in Maryland. Neal, 922 A.2d at 541. Paragraph 9(d)
of the deed of trust stated, “In many circumstances regulations issued by the [HUD] Secretary
will limit Lender’s rights in the case of payment defaults to require immediate payment in full
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and foreclose if not paid. This Security Instrument does not authorize acceleration or foreclosure
if not permitted by regulations of the Secretary.” Id. at 542. The deed of trust was assigned for
servicing to Wells Fargo Home Mortgage, Inc. (“Wells Fargo”). Id. After Neal fell behind in
making the monthly mortgage payments, Wells Fargo initiated foreclosure proceedings. Id.
Neal obtained a pre-sale stay of the foreclosure proceedings by filing suit in Maryland state court
for breach of contract and declaratory judgment. Id. In his complaint, Neal asserted Wells Fargo
breached the terms of paragraph 9(d) of the deed of trust by failing to observe the various pre-
foreclosure loss mitigation procedures set out in the HUD mortgage servicing regulations. Id.
The trial court granted summary judgment in favor of Wells Fargo based on the premise that the
HUD regulations were intended for the benefit of HUD enforcement of the FHA mortgage
insurance program and did not grant a private cause of action for a borrower such as Neal. Id. at
542–43. The “Court of Special Appeals,” Maryland’s intermediate appellate court, construed
Maryland case law to “stand for the general proposition that private parties are bound by and
may be liable, each to the other, under state and federal statutory or regulatory standards
specifically incorporated into contracts executed between them.” Id. at 543. Accordingly, the
intermediate appellate court remanded the case to the trial court to “determine whether Neal and
Wells Fargo bargained for the provision referring to the HUD loss mitigation regulations.” Id.
Wells Fargo petitioned for writ of certiorari in the Maryland Court of Appeals. Id. The court of
appeals concluded, inter alia, that “a mortgagor may not wield as a sword the HUD regulations
alluded to in a mandatory FHA form deed of trust.” Id. at 547. However, the court of appeals
stated, “there is ample support that aggrieved mortgagors may assert an allegation of regulatory
noncompliance as a shield against unauthorized foreclosure actions.” Id. The court of appeals
reversed the court of special appeals and directed that court to remand the case to the trial court
for further proceedings to determine if Neal could meet his burden of proving Wells Fargo had
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failed to comply with the HUD regulations pertaining to loss mitigation prior to initiating
foreclosure proceedings. Id. at 553.
Henning does not describe or cite the “incorporated obligation” he asserts OneWest
“undertook,” nor does the record show that the note or deed of trust “expressly incorporated” any
“loss mitigation obligations.” Further, we do not find Leggette or Neal helpful. As described
above, the court in Leggette did not reach the merits of the plaintiff’s claims. See Leggette, 2005
WL 2679699, at *6. Neal, unlike the case before us, involved an “FHA Deed of Trust” that
specifically referred to HUD regulations pertaining to acceleration and foreclosure. Neal, 922
A.2d at 541–42. On this record, we cannot agree with Henning that summary judgment was
precluded by a “loss mitigation obligation” of OneWest.
Third, Henning argues the “guidelines” governing his loan provide that OneWest “is to
maintain payments to Fannie Mae, despite [Henning’s] failure to make them” and “[u]nder those
terms, there can be no default if the mortgage payments continued to be made by OneWest to
Fannie Mae.” In support of that argument, Henning cites, in its entirety, a fifteen-page
“Amended and Restated Agreement with Respect to Servicing Transfer and Enforcement of
Selling Representations and Warranties” (the “amended agreement”) attached to his “Response
to Defendant’s No-Evidence Motion for Summary Judgment.” That amended agreement is dated
September 24, 2010. The parties to that amended agreement included One West, Fannie Mae,
and others, but not Henning. The copy attached to Henning’s response is signed only by Fannie
Mae.
OneWest asserts in this Court that Henning did not attach the amended agreement to his
“Objection and Response to Defendant’s Motion for Summary Judgment.” Additionally,
OneWest contends that “[e]ven assuming an agreement between Fannie Mae and OneWest,
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Henning did not make the payments required under the Note” and “[t]he alleged obligation of
OneWest to Fannie Mae is irrelevant to Henning’s obligations.”
As described above, Marks stated in her affidavit (1) “Henning defaulted on the Note and
Deed of Trust by failing to make payments as they became due,” (2) “Movant mailed to Henning
a written Notice of Default informing Henning of Movant’s intent to accelerate the remaining
installments under the Note if the default in payments were not timely cured,” (3) “[t]he default
was not cured, and a Notice of Acceleration was sent on behalf of Movant” and (4) “the sum of
$324,143.86 is due and owing on the Note.” Additionally, copies of the note, deed of trust, loan
modification agreement, and documents pertaining to Henning’s payment history were attached
to Marks’s affidavit. Henning does not identify any specific provision of the amended
agreement that supports his argument or explain how “there cannot be a default if the mortgage
payments continued to be made by OneWest to Fannie Mae.” See TEX. R. APP. P. 38.1(i).
Further, the record does not show the amended agreement was before the trial court with respect
to OneWest’s motion for traditional summary judgment. On this record, we cannot conclude
Henning raised a genuine issue of material fact as to default. See Affordable Motor Co., Inc.,
351 S.W.3d at 519 (if movant satisfies its summary judgment burden under 166a(c), burden
shifts to nonmovant to preclude summary judgment by presenting evidence that raises genuine
issue of material fact); see also TEX. R. CIV. P. 166a(c).
We decide Henning’s first issue against him.
2. OneWest’s No-Evidence Motion for Summary Judgment
In his second through twelfth issues, Henning contends the trial court erred by granting
OneWest’s no-evidence motion for summary judgment because (1) “[i]n its motion, OneWest
failed to present anything more than conclusory allegations and a recitation of the necessary
–15–
elements, which failed to satisfy its burden” and (2) the evidence presented by Henning in his
response to that motion raised material fact issues on each of his claims.
OneWest responds that its no-evidence motion “set forth the elements required for each
of Henning’s alleged theories of recovery, and pointed out that there was no evidence to support
the requisite elements of any claim.” According to OneWest, “[t]o avoid summary judgment,
Henning was required to produce competent summary judgment evidence on each of the
challenged elements” and Henning “failed to meet his burdens.”
a. Conclusory Motion
The supreme court has stated that a no-evidence motion for summary judgment “must be
specific in challenging the evidentiary support for an element of a claim or defense” and
“paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an
opponent’s case.” Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009) (citing
comment to rule 166a(i)). The underlying purpose of this requirement is “to provide the
opposing party with adequate information for opposing the motion, and to define the issues for
the purpose of summary judgment.” Id. at 311. The supreme court has analogized this purpose
to that of “fair notice” pleading requirements. Id.
In the case before us, the record shows that in its no-evidence motion, OneWest
unambiguously stated the elements of each of Henning’s claims and identified the elements as to
which it contended there was no evidence. See id. Further, the record reveals no confusion as to
Henning’s claims or OneWest’s assertions of no evidence. See id. Therefore, we conclude
OneWest’s motion gave “fair notice” to Henning of what it was challenging and was not the type
of “conclusory” motion barred by rule 166a(i). See id.
b. OneWest’s Status as Note Holder
–16–
In his second issue, Henning contends the trial court erred by granting OneWest’s no-
evidence motion for summary judgment as to his claim that OneWest is not the “note holder.”4
Henning asserts the same arguments described above in Henning’s response to OneWest’s
traditional motion for summary judgment in which response Henning challenged the validity of
an assignment of the note signed by an alleged “robo signer.” OneWest responds that it “proved
as a matter of law that it was the holder” and “Henning failed to offer proof that OneWest was
not the holder of the Note.”
As stated above, Henning identifies no evidence in the record that disputes that (1) the
note was endorsed in blank and (2) as stated in Marks’s affidavit, OneWest was in possession of
the original note. The trial court did not err in granting OneWest’s traditional and no-evidence
motions for summary judgment on this issue. Therefore, we decide against Henning on his
second issue. See TEX. BUS. & COM. CODE ANN. § 3.205(b); Robeson, 2012 WL 42965 at *4–*5.
c. Common Law and Statutory Fraud
In his third and fourth issues, Henning challenges the trial court’s no-evidence summary
judgment on his claims of (1) common law fraud and (2) statutory fraud pursuant to section
27.01(a) of the Texas Business and Commerce Code. See TEX. BUS. & COM. CODE ANN.
§ 27.01(a) (West 2009). OneWest asserts Henning did not meet his no-evidence summary
judgment burden as to these claims because he “offered no proof of fraud damages.”
The elements of common law fraud are “(1) that a material representation was made; (2)
the representation was false; (3) when the representation was made, the speaker knew it was false
or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the
speaker made the representation with the intent that the other party should act upon it; (5) the
4
We note that Henning failed to object below or on appeal that this issue was an element of OneWest’s counterclaim on which OneWest
had the burden of proof. See Austin, 261 S.W.3d at 72; TEX. R. CIV. P. 166a(i) (limiting no-evidence motion to nonmovant’s claim or defense).
–17–
party acted in reliance on the representation; and (6) the party thereby suffered injury.”
Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009). The elements of
statutory fraud under section 27.01(a) are essentially the same as the elements of common law
fraud, except that section 27.01(a) does not require proof of knowledge or recklessness as a
prerequisite to the recovery of actual damages. See TEX. BUS. & COM. CODE ANN. § 27.01(a);
Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 867 (Tex. App.—Austin 2001, pet. denied);
Tsai v. Chang, No. 05–00–00177–CV, 2001 WL 717807, at *6 (Tex. App.—Dallas June 27,
2001, pet. denied) (not designated for publication); see also Tennill v. Boardwalk Fine Prop.,
Inc., No. 05-05-00399-CV, 2006 WL 2423587, at *3 (Tex. App.—Dallas Aug. 23, 2006, no pet.)
(mem. op.) (claims for fraud and statutory fraud both require essential element of damages).
In its no-evidence motion for summary judgment, OneWest listed the elements for
common law and statutory fraud and asserted Henning “can adduce no competent summary
judgment evidence” that would establish “these essential elements.” In his response to that
motion, Henning stated in part “OneWest’s actions, contradictions, and miscommunications
regarding payment arrangements and amounts owed, reflect a pattern or practice intended to
mislead Plaintiff and result in the default and attempted foreclosure of Plaintiff’s home.”
Henning did not address the element of fraud damages in his response or cite evidence of such
damages. Further, Henning does not specifically address fraud damages in his amended brief in
this Court.5
In his reply brief in this Court, Henning contends in part
OneWest’s argument that Henning failed to assert damages as part of his
fraud claim is without merit. Certainly the misadministration of Henning’s loan is
5
In his argument respecting his third issue in his amended brief in this Court, Henning asserts, and cites purported evidence, that in 2009,
OneWest represented to Henning that he would receive a loan modification if he complied with certain requirements. Henning contends that
despite his compliance with those requirements, he was never offered that loan modification. To the extent Henning contends this is evidence of
fraud damages, that argument was not raised in the trial court and therefore presents nothing for this Court’s review. See McConnell, 858 S.W.2d
at 343; Young, 373 S.W.3d at 784.
–18–
evidence of significant damage in that such actions served as the basis of
OneWest’s assertion of default. Had Henning’s loan payments been properly
applied to the payment arrangement he made with OneWest, Henning’s loan
would have been returned to a producing loan as he repeatedly sought to have.
Instead, OneWest’s deceptive actions created the violations that threatened, and
eventually led to the unlawful foreclosure of Henning’s home.
Moreover, OneWest’s failure to properly apply and credit payments, such
as those made pursuant to the third TPP payment, created a false appearance of
being late, resulting in unjustified late fees to Henning’s loan.
However, those arguments were not raised in the trial court and therefore present nothing for this
Court’s review. See McConnell, 858 S.W.2d at 343; Young, 373 S.W.3d at 784.
We decide against Henning on his third and fourth issues.
d. Fraudulent Lien or Claim
In his fifth issue, Henning asserts the trial court erred by granting OneWest’s no-evidence
motion for summary judgment as to his claim respecting violation of section 12.002(a) of the
Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 12.002(a)
(West 2002). The elements of a claim under section 12.002(a) are that the defendant (1) made,
presented, or used a document with knowledge that it was a “fraudulent lien or claim against real
or personal property or an interest in real or personal property,” (2) intended that the document
be given legal effect, and (3) intended to cause the plaintiff physical injury, financial injury, or
mental anguish. Id.; Merritt v. Davis, 331 S.W.3d 857, 860 (Tex. App.—Dallas 2011, pet.
denied). For purposes of section 12.002(a), “‘[l]ien’ means a claim in property for the payment
of a debt and includes a security interest.” TEX. CIV. PRAC. & REM. CODE ANN. § 12.001(3).
According to Henning’s amended brief in this Court,
MERS conveyed assignments with the intent of creating a lien that was to be
afforded all the authority of a valid lien, with full knowledge that the assignment
was made by an individual that lacked the authority to act as the corporate officer
she purported to have, resulting in a void assignment. Moreover, as stated above,
OneWest prepared and filed Assignments that OneWest knew were fraudulent
when filed. As such OneWest was aware of the harmful effect those documents
would cause and, in fact, intended that harm. Accordingly, Appellant raised
genuine fact issues that should have precluded summary judgment.
–19–
OneWest asserts (1) Henning responded to OneWest’s no-evidence motion for summary
judgment on this claim with “vague allegations” that “were not evidence and raised no fact
issue” and (2) “[a]s a matter of law, assignments do not create liens” and therefore section
12.002 is inapplicable.
The record shows that in its no-evidence motion for summary judgment, OneWest
contended Henning “can adduce no competent summary judgment evidence that would establish
that [OneWest] violated any part of § 12.002.” Henning’s response pertaining to his section
12.002 claim was essentially identical to his appellate argument quoted above and did not
include any citations to evidence. While Henning stated generally that “assignments” were
“conveyed” by MERS, he did not describe or identify those “assignments.” Further, Henning
did not assert, or cite evidence to show, that the “assignments” that he contends were “prepared
and filed” by OneWest were “liens” as defined in section 12.001(3). TEX. CIV. PRAC. & REM.
CODE ANN. § 12.001(3); cf. Garcia v. Bank of N.Y. Mellon, No. 3:12–CV–0062–D, 2012 WL
692099, at *3 (N.D. Tex. Mar. 5, 2012) (dismissing section 12.002(a) fraudulent lien claim
because plaintiffs did not plead facts to establish that allegedly invalid assignment of deed of
trust was “lien” as defined in section 12.001(3)).
We decide Henning’s fifth issue against him.
e. Negligent Misrepresentation
In his sixth issue, Henning contends the trial court erred by granting OneWest’s no-
evidence motion for summary judgment as to his negligent misrepresentation claim. The
elements of negligent misrepresentation are (1) the defendant made a representation in the course
of its business or in a transaction in which it had an interest, (2) the defendant supplied false
information for the guidance of others in their business, (3) the defendant did not exercise
reasonable care or competence in obtaining or communicating the information, and (4) the
–20–
plaintiff suffered pecuniary loss by justifiably relying on the representation. Ostrovitz & Gwinn,
LLC v. First Specialty Ins. Co., 393 S.W.3d 379, 397 (Tex. App.—Dallas 2012, no pet.) (citing
Cunningham v. Tarski, 365 S.W.3d 179, 186–87 (Tex. App.—Dallas 2012, pet. denied)).
In its no-evidence motion for summary judgment, OneWest listed the elements described
above and contended Henning “cannot adduce competent summary judgment evidence that
would establish any of these essential elements of his negligent misrepresentation claim.”
Henning responded as follows:
As set forth above, the attached exhibits reflect [OneWest’s] pecuniary interest in
the transactions with Plaintiff, including the loan modifications. Further, the
communications between Plaintiff and [OneWest] reflect the lack of reasonable
care and the confusing and contradictory information regarding Plaintiff’s loan
balance, amounts owed and payment arrangements. Further, Plaintiff’s
communications and his affidavit reflect his reliance on the misinformation that
[OneWest] continued to offer as well as the financial and emotional damages;
Plaintiff has incurred and continues to incur.
Henning’s response on this issue in the trial court contained no citations to evidence.
In his amended brief in this Court, Henning (1) states in part that OneWest failed to assert
in the trial court “which element lacked evidence” and (2) describes purported
“misrepresentations” made to him by OneWest pertaining to a loan modification he sought in
2009 that “never came.” According to Henning,
The evidence presented to the trial court reflected that the numerous
misrepresentations to Mr. Henning regarding facts that existed at the time, as well
as representations regarding future conduct. [sic]
....
One West failed to perform on the representations made and Mr. Henning
relied on the representation . . . .
In support of those contentions, Henning cites to his affidavit described above, in which he stated
in part
I have paid thousands of dollars that were never credited to my loan in reliance on
the information by OneWest that doing so would save my home and have made
every effort to obtain a valid loan modification, only to receive contradictory and
inconsistent information from One West. The continual misinformation caused me
–21–
considerable physical and emotional stress. As a husband and father, I have
suffered, and continue to suffer many sleepless nights worrying about losing my
home.
OneWest asserts in its brief in this Court (1) “[n]o competent evidence was adduced that
OneWest made a false representation in the course of its business, for the guidance of Henning,
upon which he justifiably relied to his detriment and suffered damages” and (2) Henning’s
response “did not identify any specific evidence raising fact issues.”
In his reply brief in this Court, Henning contends OneWest’s appellate brief addresses
only “lack of damages.” Further, Henning states
The evidence presented to the trial court reflected that the numerous
misrepresentations that OneWest failed to perform and [sic] that they were
misrepresentations which Henning relied on. Thus, OneWest’s failure to offer a
valid permanent modification resulted in the damages that thrust Plaintiff into a
spiraling problem which ultimately resulted in the foreclosure of Henning’s home.
As described above, the record shows OneWest challenged all essential elements of
negligent misrepresentation in its no-evidence motion for summary judgment, which we have
previously concluded may be done on a no-evidence motion for summary judgment. See Nelson
v. Regions Mortg., Inc., 170 S.W.3d 858, 861–62 (Tex. App.—Dallas 2005, no pet.). Further,
based on the language in OneWest’s appellate brief quoted above, we cannot agree with Henning
that OneWest addressed only “lack of damages” in that brief. Finally, even assuming without
deciding that Henning’s affidavit, which was one of the “attached exhibits” referred to generally
in his no-evidence summary judgment response, constituted more than a scintilla of evidence of
damages, we cannot conclude Henning met his rule 166a(i) burden as to his negligent
misrepresentation claim. See TEX. R. CIV. P. 166a(i). Although Henning asserted in his affidavit
in the trial court that the information he received from OneWest was “contradictory” and
“inconsistent,” the record does not show he presented evidence of “false” information, which is a
–22–
required element of negligent misrepresentation. See Ostrovitz & Gwinn, LLC, 393 S.W.3d at
397.
We decide against Henning on his sixth issue.
f. Texas Debt Collection Practices Act
In his seventh issue,6 Henning asserts the trial court erred by granting OneWest’s no-
evidence summary judgment motion as to his Texas Debt Collection Practices Act (“TDCPA”)
claim. See TEX. FIN. CODE ANN. §§ 392.001–.404 (West 2006). Section 392.303 of the TDCPA
states in part
(a) In debt collection, a debt collector may not use unfair or unconscionable
means that employ the following practices:
....
(2) collecting or attempting to collect interest or a charge, fee, or expense
incidental to the obligation unless the interest or incidental charge, fee, or
expense is expressly authorized by the agreement creating the obligation
or legally chargeable to the consumer . . . .
TEX. FIN. CODE ANN. § 392.303.
Section 392.304 provides in part as follows:
(a) Except as otherwise provided by this section, in debt collection or obtaining
information concerning a consumer, a debt collector may not use a fraudulent,
deceptive, or misleading representation that employs the following practices:
....
(8) misrepresenting the character, extent, or amount of a consumer debt, or
misrepresenting the consumer debt's status in a judicial or governmental
proceeding; [or]
....
(19) using any other false representation or deceptive means to collect a
debt or obtain information concerning a consumer.
TEX. FIN. CODE ANN. § 392.304.
In its no-evidence motion for summary judgment, OneWest asserted Henning “is unable
to present evidence that [OneWest’s] conduct violated any statute of the [TDCPA].”
6
In Henning’s brief in this Court, both this issue and the preceding issue are labeled as “Issue No. 6.” For purposes of clarity, we refer to
Henning’s twelve issues by ordinal numbers rather than the designations used in his brief.
–23–
Additionally, OneWest stated in part that Henning could adduce no competent summary
judgment proof that OneWest (1) “used a false misrepresentation or deceptive means to collect a
debt or obtain information concerning [Henning],” (2) “used a fraudulent, deceptive, or
misleading representation by misrepresenting the character, extent, or amount of [Henning’s]
debt,” (3) “misrepresented the debt’s status in a judicial or governmental proceeding,” or (4)
“collected or attempted to collect interest, a charge, a fee, or an expense incidental to the
obligation which was not expressly authorized by the agreement creating the obligation or
legally chargeable to [Henning].”
In his response to OneWest’s no-evidence motion, Henning cited seven exhibits attached
to his response: his affidavit described above, five letters to him from OneWest, and one letter to
OneWest from him. Additionally, Henning asserted in part in his response
. . . [A]s articulated above, Plaintiff sent payments in, which OneWest
misapplied, or failed to post, or sent them back after representing it would accept
the payments.
....
As stated above, Defendant prepared, executed and filed various
documents in the county records that contained fraudulent and misleading
information.
. . . As further evidenced in his May 25, 2010 letter to OneWest, Plaintiff
incurred thousands of dollars in costs, which he relied on OneWest to apply
toward his mortgage, only to learn that none of the amounts were credited,
creating even greater amounts owed and the assessment of ever larger costs and
fines.
On appeal, Henning asserts in part that “the summary judgment evidence reflected
misrepresentations by OneWest, which eventually resulted in the wrongful foreclosure of his
home.” However, Henning does not identify, and the record does not show, evidence to support
his conclusory assertions that OneWest (1) sent back payments “after representing it would
accept the payments” or (2) “applied” or “posted” amounts paid by Henning in a manner other
than had been represented. Further, in the trial court, Henning did not identify or cite specific
–24–
evidence to support any particular violation of the TDCPA. See TEX. FIN. CODE ANN.
§§ 392.303–.304.
We decide against Henning on his seventh issue.
g. Texas Deceptive Trade Practices Act
In his eighth issue, Henning challenges the trial court’s granting of OneWest’s no-
evidence motion for summary judgment as to his claim under the Texas Deceptive Trade
Practices Act (“DPTA”). See TEX. BUS. & COM. CODE ANN. §§ 17.41–.63 (West 2011 and Supp.
2012). Generally, a plaintiff in a DTPA action must show (1) the plaintiff is a consumer, (2) the
defendant engaged in false, misleading, deceptive, or unconscionable acts, and (3) those acts
constituted a producing cause of the consumer’s damages. See id. § 17.50(a); Doe v. Boys Clubs
of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995). Henning asserts his DTPA claim is
based on both (1) violation of the terms of the DTPA and (2) violation of the TDCPA as
described above, which constitutes a DTPA violation. See TEX. BUS. & COM. CODE ANN.
§ 17.50; TEX. FIN. CODE ANN. § 392.404(a) (“violation of this chapter is a deceptive trade
practice under Subchapter E, Chapter 17, Business & Commerce Code”). According to
Henning, summary judgment on his DTPA claim should have been precluded because “[t]he
facts establish that OneWest misrepresented the character, extent or amount of debt OneWest
claimed was owed, by not crediting money received or by losing payments.”
OneWest responds in part that Henning “waived appellate review of this issue” because
his appellate brief “provides no citations to the record.” Further, OneWest asserts Henning’s
response to its no-evidence summary judgment motion did not identify any “purported evidence”
of the elements challenged by OneWest, including “fraudulent, misleading, deceptive, or
unconscionable acts by One West” and “evidence of purported DTPA damages.”
–25–
The record shows Henning’s response to OneWest’s no-evidence motion respecting his
DTPA claim referred to “actions” of OneWest “as set forth in Plaintiff’s pleadings and herein”
and damages “as set forth,” with no citations to evidence. Additionally, there are no citations to
the record respecting this issue in Henning’s amended brief or reply brief in this Court. Henning
asserts in his reply brief that “the Texas Supreme Court has disapproved of appellate courts
affirming a trial court judgment based on briefing irregularities, where the appellant wasn’t
provided an opportunity to correct or waive the defects or irregularities.”
On this record, we cannot conclude Henning lacked an “opportunity to correct” his
appellate brief. See TEX. R. APP. P. 38.1(i). Moreover, based on Henning’s lack of citation to
evidence in his no-evidence summary judgment response in the trial court, we conclude Henning
did not meet his rule 166a(i) burden as to this issue. See TEX. R. CIV. P. 166a(i); Sw. Elec. Power
Co., 73 S.W.3d at 215.
We decide Henning’s eighth issue against him.
h. Breach of Contract
Henning’s ninth issue challenges the trial court’s granting of OneWest’s no-evidence
motion for summary judgment as to his breach of contract claim. Specifically, Henning contends
(1) OneWest committed to offer Henning a loan modification pursuant to the federal “Home
Affordable Modification Program” (“HAMP”), but failed to do so, and (2) “OneWest’s
obligations to offer [Henning] a valid HAMP modification, and its subsequent duty to do so,
resulted in a breach of contract action which should have precluded summary judgment.”
OneWest asserts in part (1) federal courts in Texas and elsewhere “consistently hold that
borrowers do not have standing to bring state law claims for violation of obligations owed under
the agreements between lenders and the United States Department of the Treasury that comprise
the HAMP program,” (2) Henning “failed to demonstrate by summary judgment evidence fact
–26–
issues on either his performance or breach by OneWest,” and (3) Henning “did not mention or
raise fact issues on contract damages.”
To succeed on a breach of contract claim, the claimant must establish (1) a valid contract
existed, (2) he performed or tendered performance, (3) the defendant breached the contract, and
(4) the claimant was damaged as a result of that breach. See, e.g., Burnett v. Coppell N. Tex.
Court, Ltd., 123 S.W.3d 804, 815 (Tex. App.—Dallas 2003, pet. denied); Petras v. Criswell, 248
S.W.3d 471, 477 (Tex. App.—Dallas 2008, no pet.). The record shows OneWest listed those
elements in its no-evidence motion for summary judgment and stated in part that Henning
“cannot adduce competent summary judgment evidence that would establish any of these
essential elements” as to his breach of contract claim. In his response to OneWest’s no-evidence
motion, Henning cited no evidence and did not address damages. Further, Henning does not
address breach of contract damages in his amended brief or reply brief in this Court. On this
record, we conclude Henning did not meet his summary judgment burden as to his breach of
contract claim. See TEX. R. CIV. P. 166a(i); Sw. Elec. Power Co., 73 S.W.3d at 215.
We decide Henning’s ninth issue against him.
i. Exemplary Damages, Declaratory Relief, and Injunctive Relief
In his tenth, eleventh, and twelfth issues, respectively, Henning contends the trial court
erred by granting summary judgment as to his claims for exemplary damages and declaratory
and injunctive relief. OneWest responds “Henning failed to provide any citation to the record in
support of these issues” and therefore “[a]ppellate review was waived.” Additionally, OneWest
asserts (1) “Henning’s issue regarding exemplary damages failed because no tort claim
permitting recovery of exemplary damages was established” and (2) “[t]he declaratory relief
sought by Henning was that OneWest did not own the Note” and “[n]o evidence was adduced by
Henning controverting the Note or its possession.”
–27–
“‘Exemplary damages’ means any damages awarded as a penalty or by way of
punishment but not for compensatory purposes.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 41.001(5) (West 2008). Under section 41.003(a) of the Texas Civil Practice and Remedies
Code, exemplary damages may generally be awarded “only if the claimant proves by clear and
convincing evidence that the harm with respect to which the claimant seeks recovery of
exemplary damages results from (1) fraud, (2) malice, or (3) gross negligence.” Id. § 41.003(a).
Further, section 41.004(a) provides that generally, “exemplary damages may be awarded only if
damages other than nominal damages are awarded.” Id. § 41.004(a).
The purpose of seeking a declaratory judgment is to settle and afford relief of uncertainty
and insecurity about rights, status, and other legal relations. See TEX. CIV. PRAC. & REM. CODE
ANN. § 37.002(b) (West 2008); Bright v. Addison, 171 S.W.3d 588, 606 (Tex. App.—Dallas
2005, pet. denied). A declaratory judgment is appropriate only if a justiciable controversy exists
as to the rights and status of the parties and the controversy will be resolved by the declaration
sought. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). “To constitute a
justiciable controversy, there must exist a real and substantial controversy involving genuine
conflict of tangible interests and not merely a theoretical dispute.” Id.
At common law, to obtain a permanent injunction an applicant must demonstrate (1) a
wrongful act, (2) imminent harm, (3) irreparable injury, and (4) no adequate remedy at law. See
Priest v. Tex. Animal Health Comm’n, 780 S.W.2d 874, 875 (Tex. App.—Dallas 1989, no writ);
Jordan v. Landry’s Seafood Rest., Inc., 89 S.W.3d 737, 742 (Tex. App.—Houston [1st Dist.]
2002, pet. denied).
The record shows that in his complaint in the trial court, Henning (1) alleged he was
entitled to exemplary damages under section 41.003, (2) requested a declaratory judgment
specifying his and OneWest’s rights and duties in connection with the Note, and (3) sought a
–28–
permanent injunction “[b]ased on the facts above” that would require OneWest to “desist and
refrain from entering and taking possession of the [property] or otherwise interfering with
[Henning’s] right to the quiet enjoyment and use of the [property]; proceeding with or attempting
to sell or foreclose upon the [property]; and, attempting to purchase, transfer, assign or collect on
the Note.” With respect to those claims, OneWest’s no-evidence motion for summary judgment
stated in part that Henning can adduce no competent summary judgment proof: (1) “to support
any of his claims, much less that OneWest acted with the requisite willfulness, malice or gross
negligence that would support a claim for exemplary damages”; (2) that “[OneWest] is not the
holder of the Note”; and (3) that “there is a probable right to relief, or that there will be a
probable injury because the harm is imminent, the injury is irreparable, or that there is no other
legal remedy.” In his response to that motion, Henning (1) asserted in part that “the evidence
attached hereto offer more than a scintilla of evidence supporting Plaintiff’s claim for exemplary
damages” and (2) referred to an “[a]ffidavit to his temporary restraining order, previously filed
with [the trial court]” in support of the “irreparable harm” element of his injunctive relief claim.
In the trial court, Henning did not cite any evidence pertaining to his claims for
exemplary damages and declaratory and injunctive relief, nor did he address any elements of his
injunctive relief claim other than “irreparable harm.” Further, in his amended brief on appeal, he
provides no citations to the record pertaining to those claims.7 In his appellate reply brief, he
requests “the opportunity to amend or supplement his brief as necessary to cure any defects in his
briefing.”
7
In his argument respecting injunctive relief in his amended appellate brief, Henning quotes section 65.011 of the Texas Civil Practice and
Remedies Code, which provides a statutory basis for injunctive relief. See TEX. CIV. PRAC. & REM. CODE ANN. § 65.011 (West 2008). However,
the record does not show section 65.011 was cited by Henning in the trial court or was the basis for his request for a permanent injunction in that
court. Accordingly, to the extent Henning relies on section 65.011 to support his argument in this Court, that argument presents nothing for this
Court’s review. See McConnell, 858 S.W.2d at 343; Young, 373 S.W.3d at 784.
–29–
We concluded above that the trial court did not err by granting OneWest’s no-evidence
motion for summary judgment as to Henning’s claims. Accordingly, no claims remain as to
which exemplary damages can be raised or upon which a trial court could address a claim for
declaratory judgment or injunctive relief. Therefore, on this record, we conclude summary
judgment was proper as to those three remaining claims. See TEX. CIV. PRAC. & REM. CODE
ANN. § 41.004(a); Bonham State Bank, 907 S.W.2d at 467; Priest, 780 S.W.2d at 875; see also
TEX. R. CIV. P. 166a(i); Sw. Elec. Power Co., 73 S.W.3d at 215.
We decide against Henning on his tenth, eleventh, and twelfth issues.
III. CONCLUSION
We decide Henning’s twelve issues against him. The trial court’s judgment is affirmed.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
120078F.P05
–30–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KENNETH HENNING, Appellant On Appeal from the 193rd Judicial District
Court, Dallas County, Texas
No. 05-12-00078-CV V. Trial Court Cause No. DC-10-16465-L.
Opinion delivered by Justice Lang. Justices
ONEWEST BANK FSB, Appellee Myers and Evans participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee ONEWEST BANK FSB recover its costs of this appeal
from appellant KENNETH HENNING.
Judgment entered this 2nd day of July, 2013.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
–31–