J.M. Arpad Lamell v. OneWest Bank, FSB, a Foreign Corporation

Affirmed in Part and Reversed and Remanded in Part and Opinion filed
November 17, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00175-CV
J.M. ARPAD LAMELL, Appellant
V.
ONEWEST BANK, FSB, A FOREIGN CORPORATION, Appellee
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2010-11491
OPINION
A homeowner filed suit against a mortgage servicer asserting a variety of
claims in conjunction with the mortgage servicer’s attempt to foreclose on the
homeowner’s property. The mortgage servicer sought summary judgment on some
of the claims. In response to the mortgage servicer’s summary-judgment motion,
the homeowner asserted that the mortgage servicer could not foreclose on his
property because the deed of trust and attached note were void due to securitization
issues. We conclude that the deed of trust is not void. We affirm in part and
reverse and remand in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant/plaintiff J.M. Arpad Lamell executed a promissory note to
Home123 Corporation/New Century Mortgage to refinance his home. A deed of
trust secured the note. A few years after this transaction, Lamell received notice
that servicing for his loan had been transferred to IndyMac Mortgage Services, a
division of OneWest Bank1 (“OneWest”). The deed of trust named as beneficiary
Mortgage Electronic Registration Systems, Inc., acting solely as nominee for
Home 123 Corporation and its successors and assigns (“MERS”). Effective April
11, 2010, MERS assigned the deed of trust to the CSMC Trust. OneWest serviced
the loan on behalf of CSMC Trust.
During 2008 and 2009 Lamell protested the property tax appraisal on his
home. Both protests led to lawsuits. During the pendency of the lawsuits, Lamell
did not pay the contested portion of his property tax, but OneWest advanced funds
to pay the disputed taxes assessed on the home. OneWest raised Lamell’s
payments to cover the funds OneWest advanced to pay the contested portion of
Lamell’s property taxes. Lamell filed a lawsuit against the Harris County
Appraisal District (HCAD), the Appraisal Review Board of the Harris County
Appraisal District, and the Harris County Tax Assessor-Collector (“Harris County
Parties”). During the pendency of that lawsuit, Lamell stopped making payments
1
In his reply brief, Lamell requests this court to take judicial notice of news releases
announcing the Federal Deposit Insurance Corporation’s takeover of IndyMac in 2008 and
announcing the sale of IndyMac’s banking operations to OneWest Bank, the information
available regarding Lamell’s property on HCAD’s “Real Property Account Information” page
for Lamell’s property, and a notice of rejection sent by New Century to MERS. Assuming
without deciding that we may take judicial notice of these documents, doing so would not change
the outcome of this appeal. See Thornton v. Cash, No. 14-11-01092, 2013 WL 1683650, at *14
(Tex. App.—Houston [14th Dist.] Apr. 18, 2013, no pet.) (mem. op.).
2
on the note and OneWest threatened foreclosure. Lamell then added OneWest as a
named defendant in his lawsuit against the Harris County Parties. Lamell later
reached a settlement with the Harris County Parties, but continued his suit against
OneWest.
In his original petition, the only claim Lamell asserted against OneWest was
a claim that “[a]ll the Defendants together have violated Plaintiff’s right to Due
Process.” Based on the claims asserted in his petition, Lamell requested that the
trial court (1) enjoin OneWest from initiating acceleration, foreclosure, or
deficiency actions, (2) require OneWest to correct any negative reports it may have
provided to credit reporting agencies, and (3) order OneWest to restore Lamell’s
mortgage payment to the amount in force before the imposition of escrow. In
response to OneWest’s notice of intent to foreclose on his property, Lamell sought
and received a temporary restraining order. Lamell then requested a temporary
injunction. The trial court denied this request and dissolved the temporary
restraining order.
Lamell challenged the denial of the temporary injunction by interlocutory
appeal. In conjunction with the appeal, Lamell filed a motion to stay the
enforcement of the order denying injunctive relief, or in the alternative, to set a
supersedeas bond. The trial court ruled that Lamell could supersede the order
denying his request for a temporary injunction during Lamell’s appeal, and the trial
court set the supersedeas amount that Lamell would have to post to supersede the
order. Lamell deposited cash with the trial court clerk in lieu of a supersedeas
bond. This court eventually dismissed Lamell’s interlocutory appeal as moot
based on the trial court’s grant of summary judgment as to all of Lamell’s claims.
See Lamell v. Indymac Mortgage Servs., F.S., 2013 WL 3580634, at *1 (Tex.
App.—Houston [14th Dist.] July, 11, 2013, pet. denied) (mem. op.). The trial
3
court then ordered the supersedeas funds to be released to OneWest.
OneWest moved for summary judgment asserting both traditional and no-
evidence grounds. OneWest argued it was entitled to summary judgment on the
following grounds:
(1) Lamell’s claims for violation of due process, equal and uniform
tax appraisal, false agency, and unlawful tax collection lack
evidentiary support;
(2) Lamell has no evidence of his failure-to-disclose claim;
(3) Lamell has no evidence of fraud or misrepresentation;
(4) Lamell has no evidence of conversion;
(5)Lamell lacks standing to challenge the assignment and
securitization of the note;
(6) Lamell’s arguments about “backdating” are without merit;
(7) There is no evidence that the assignment or securitization of the
loan are improper;
(8) There is no evidence OneWest committed any wrongful act under
the Texas Debt Collections Act or Fair Debt Collection Practices Act;
and
(9) Lamell cannot assert a claim against OneWest for unfair debt
collection, because OneWest is not a debt collector under either act.
Lamell filed three supplemental petitions after OneWest filed its traditional
and no-evidence summary-judgment motion. In these supplemental petitions,
Lamell asserted claims against OneWest for (1) unlawful tax collection, (2)
unlawful levy and lien, (3) wrongful acceleration/foreclosure, (4) false pretense,
(5) breach of contract, (6) violation of the Real Estate Settlement Procedures Act,
(7) slander of title, (8) mortgage and title fraud, (9) unfair debt collection, (10) mail
fraud, (11) civil conspiracy, (12) unjust enrichment, and (13) fraud. Lamell sought
injunctive relief and a declaratory judgment that OneWest is not the owner and
holder of the note. In Lamell’s supplement to the supplemental petition and
4
second supplement to the supplemental petition, Lamell asserted that (1) OneWest
has no authority to foreclose, (2) the note is not genuine, (3) OneWest’s authority
is without consideration, and (4) the statute of frauds bars recovery.
The trial court granted OneWest’s summary-judgment motion.2 Lamell now
challenges that ruling in this appeal.
II. ANALYSIS
In a traditional motion for summary judgment, if the movant’s motion and
summary-judgment evidence facially establish its right to judgment as a matter of
law, the burden shifts to the nonmovant to raise a genuine, material fact issue
sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In reviewing a no-evidence summary
judgment, we ascertain whether the nonmovant pointed out summary-judgment
evidence raising a genuine issue of fact as to the essential elements attacked in the
no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206–
08 (Tex. 2002). In our de novo review of a trial court’s summary judgment, we
consider all the evidence in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could, and disregarding
contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if
reasonable and fair-minded jurors could differ in their conclusions in light of all of
the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 755 (Tex. 2007). When, as in this case, the order granting summary
judgment does not specify the grounds upon which the trial court relied, we must
2
Lamell filed a motion requesting that we abate this appeal to allow the trial court clerk
time to supplement the record. The record has been supplemented. We deny as moot Lamell’s
motion to abate the appeal.
5
affirm the summary judgment if any of the independent summary-judgment
grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d
868, 872 (Tex. 2000).
A. Standing
At the outset, we address OneWest’s argument that Lamell lacks standing to
challenge the date of the assignment or the securitization of the note because if that
argument has merit this court would lack jurisdiction over such claims. The issue
of standing focuses on whether a party has a sufficient relationship with the lawsuit
so as to have a justiciable interest in its outcome. Austin Nursing Ctr., Inc. v.
Lovato, 171 S.W.3d 845, 848 (Tex. 2005). A plaintiff has standing when it is
personally aggrieved. Id. The standing doctrine requires that there be a real
controversy between the parties that actually will be determined by the judicial
declaration sought. Id. at 849. This court previously determined that a homeowner
bringing suit to remove a cloud on title, and seeking a judgment canceling a deed
of trust, had standing to argue the deed of trust was invalid because the party
attempting to enforce the deed of trust was not the owner and holder of the
associated note. See Morlock, L.L.C., v. Nationstar Mortg., L.L.C., 447 S.W.3d 42,
45 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). In so holding, this court
determined that a homeowner’s interest in the title to his property gives the
homeowner a sufficient justiciable interest to advance arguments challenging the
deed of trust. See id. In Morlock, the homeowner argued that the deed of trust was
invalid because the party claiming a right to enforce the deed of trust through non-
judicial foreclosure was not the owner and holder of the associated note. See id. at
47. As in Morlock, Lamell asserts that the deed of trust is void because there are
problems with the assignment and securitization of the deed of trust and note.
Although Morlock involved a suit to remove a cloud on title, and Lamell has
6
asserted a variety of claims against OneWest, Lamell asserts the same justiciable
interest in challenging the assignment and securitization of the note and deed of
trust. In both cases, the homeowner’s justiciable interest vests in challenging an
alleged interest in the title to the homeowner’s real property. Because Lamell’s
justiciable interest is the same as Morlock’s, we conclude that Lamell has standing
to seek a determination as to these issues as part of his challenge to OneWest’s
right to enforce the deed of trust. See id. at 45. Accordingly, we conclude Lamell
has standing to challenge the assignment and securitization of the note. See id.
B. Claims Not Challenged in OneWest’s Summary-Judgment Motion
Lamell asserts that the trial court erred in granting OneWest’s summary-
judgment motion because OneWest did not assert summary-judgment grounds that
applied to all of the claims in Lamell’s supplemental petitions. A summary-
judgment motion must stand or fall on the grounds expressly presented in the
motion. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.
1993). Nonetheless, if the summary-judgment grounds expressly presented in the
motion are sufficiently broad to encompass claims first asserted in an amended
pleading filed after the motion, it is procedurally appropriate for the trial court to
grant summary judgment as to these new claims, even if the movant does not
amend the motion to address the new claims. See Wilson v. Korthauer, 21 S.W.3d
573, 579 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). To state a no-
evidence ground the movant must assert clearly that there is no evidence of one or
more essential elements of a claim or defense on which the adverse party would
have the burden of proof at trial. See Tex. R. Civ. P. 166a(i) (stating that a no-
evidence movant seeks “summary judgment on the ground that there is no
evidence of one or more essential elements of a claim or defense on which an
adverse party would have the burden of proof at trial” and that “[t]he motion must
7
state the elements as to which there is no evidence”); BP Oil Pipeline Co. v. Plains
Pipeline, L.P.,—S.W.3d—,—, 2015 WL 3988574, at *13 (Tex. App.—Houston
[14th Dist.] June 30, 2015, no pet. h.). In his supplemental petitions, Lamell added
claims against OneWest.
OneWest did not expressly present any traditional summary-judgment
grounds in its motion that are sufficiently broad to encompass Lamell’s claims for
unlawful tax collection, unlawful levy and illegal lien, wrongful
acceleration/foreclosure, violation of Real Estate Settlement Procedures Act, unjust
enrichment, slander of title, mortgage or title fraud, false pretense, civil conspiracy,
mail fraud, breach of contract, or any other claim asserted in Lamell’s
supplemental petition, supplement to the supplemental petition, or second
supplement to the supplemental petition.3 The only statement in OneWest’s
summary-judgment motion that arguably might constitute a no-evidence summary-
judgment ground attacking some of these claims reads as follows:
OneWest is entitled to summary judgment on Plaintiff’s claims for
violation of due process, violation of equal and uniform tax appraisal,
false agency, and unlawful tax collection (to the extent such claims
can be asserted against OneWest) because there is no evidence to
support them.
This statement is not sufficiently specific to constitute a no-evidence summary-
judgment ground because OneWest did not state there is no evidence of one or
more essential elements of any of Lamell’s alleged claims. See Tex. R. Civ. P.
166a(i); BP Oil Pipeline Co.,—S.W.3d at —, 2015 WL 3988574, at *13–14.
Because OneWest did not assert a summary-judgment ground challenging
Lamell’s claims for unlawful tax collection, unlawful levy and illegal lien,
wrongful acceleration/foreclosure, violation of the Real Estate Settlement
3
OneWest did not specially except to Lamell’s pleadings.
8
Procedures Act, unjust enrichment, slander of title, mortgage or title fraud, false
pretense, civil conspiracy, mail fraud, breach of contract, Lamell’s request for
declaratory judgment that neither IndyMac nor any party seeking to foreclose on
IndyMac’s behalf is the owner and holder of the note, or any claim asserted in
Lamell’s supplemental petition, supplement to the supplemental petition, or second
supplement to the supplemental petition, we sustain Lamell’s first issue with
respect to these claims. And, we reverse the summary judgment with respect to
those claims.4 See Espeche v. Ritzell, 123 S.W.3d 657, 664 (Tex. App.—Houston
[14th Dist.] 2003, pet. denied).
C. Fraud
OneWest asserted as a summary-judgment ground that there is no evidence
that the assignment and securitization of the note are improper, and OneWest
specifically asserted that there is no evidence of each of the elements of Lamell’s
claim for fraud. Accordingly, OneWest filed a no-evidence summary-judgment
ground that was sufficiently specific to amount to an attack on Lamell’s fraud
claim.
Lamell challenges the summary judgment by pointing to various issues he
contends create problems with the assignments among the various parties. These
problems include potential issues related to backdating and problems with the
authenticity of the note. Lamell does not specifically state how these problems
would preclude summary judgment on any particular claim. We presume for the
sake of argument that these issues relate to Lamell’s fraud claim and we address
them to the extent they relate to his fraud claim. In its summary-judgment motion,
OneWest asserted that even if the securitization or assignment of the note
contained the problems Lamell describes, those problems did not affect OneWest’s
4
In doing so, we make no comment on the merits of these claims.
9
ability to foreclose on the deed of trust.
1. Deed of Trust
Lamell asserts that the deed of trust is void because it was securitized in the
CSMC Mortgage-backed trust in violation of the terms of the Pooling and
Servicing Agreement that governs the trust. In particular, Lamell asserts that the
deed of trust is void because it was not assigned to the trust before the trust’s start-
up date and because there is no evidence that the deed of trust was transferred into
the trust by the depositor.
The deed of trust names MERS, and all of MERS’s successors and assigns,
as beneficiaries. The record contains an assignment of the deed of trust from
Champagne Williams, on behalf of MERS, to U.S. Bank National Association, as
trustee for the trust. The deed of trust was assigned on June 29, 2010, effective
April 11, 2010. The Pooling and Servicing Agreement governs the operation of
the trust.
The Pooling and Servicing Agreement classifies different types of loans that
may be sold to the trust. It states that the trust will elect to be treated as a real
estate mortgage investment conduit, a classification that affords the trust a certain
type of treatment for federal income taxation purposes. According to Lamell, this
type of treatment requires all loans to be sold to the trust by the start-up date,
which was in March 2007. Thus, Lamell asserts, because MERS assigned the deed
of trust to the trust in 2010, the assignment violated the terms of the Pooling and
Servicing Agreement and the violation renders the deed of trust void.
Lamell does not assert that any provision in the deed of trust prevented
MERS from assigning the instrument to the CSMC Trust. Nor does Lamell assert
any provision of the Pooling and Servicing Agreement states that a deed of trust
10
improperly placed in the trust renders the deed of trust void. To the contrary, the
Pooling and Servicing Agreement contemplates the delivery of loans into the trust
after the closing date. It acknowledges that parties may need to purchase
additional loans and place them into the trust at later dates in certain situations. In
section 2.03(c), for example, the Pooling and Servicing Agreement contemplates
the possibility that a party may be required to purchase a substitute loan and
deposit it into the trust at a later date in certain circumstances. Section 2.05 also
notes that mortgages may be transferred into the trust after the closing date under
certain circumstances. In section 2.07(g), the parties contemplate the possibility
that loans will be placed into the trust, causing the trust to be taxed. The Pooling
and Servicing Agreement apportions liability for such a tax to various parties.
Section 3.01 authorizes each servicer and sub-servicer to use its best judgment to
determine when it is best to register any related loan on the MERS system or to
cause the removal from the registration of any loan. The servicers and sub-
servicers have the authority to execute and deliver on behalf of the trustee and the
certificate holders, any and all instruments of assignment and other comparable
instruments to achieve these purposes. The Pooling and Services Agreement
contains provisions discussing compensation for any potential tax penalties
incurred. In sum, the text of the agreement does not support Lamell’s assertion
that any loan assigned to the trust after the closing date violates the Pooling and
Services Agreement.
Even presuming for the sake of argument that the deed of trust was placed
into the trust in violation of trust’s terms, Lamell has not cited and we have not
found any authority holding that the breach of the securitization agreement renders
the deed of trust void. The record contains the deed of trust executed by Lamell to
Home123. The record also contains an assignment, signed by Champagne
11
Williams on behalf of MERS, from MERS, acting solely as nominee for Home123
Corporation, to the CSMC Trust. The summary-judgment evidence does not show
as a matter of law that the deed of trust is void, nor does it raise a genuine fact
issue on this point. Therefore, Lamell’s argument that the deed of trust is void
does not show that the trial court erred in granting summary judgment as to his
fraud claim.
2. Owner and Holder Status
Lamell also asserts that OneWest, as the servicer of the mortgage, cannot
foreclose because OneWest did not prove its status as owner and holder of the
note. OneWest produced the note signed by Lamell along with an assignment to
OneWest. OneWest indorsed the note in blank.
Lamell asserts that the note is void and summary judgment for OneWest is
improper because:
 OneWest had an assignment of mortgage executed on June 29, 2010, that
purported to be effective April 11, 2010. The assignment is shown as
being executed by Champagne Williams on behalf of MERS, acting
solely as nominee for Home123 Corporation. This assignment shows
Home123 Corporation as the present owner and holder of the Note, but
Home123 Corporation was not in existence at the time.
 OneWest produced a copy of the note in October 2010 that it asserted
was a certified copy of the original. The copy showed no indorsements.
At a hearing in March 2012, the trial court required OneWest to appear
with the note and proof that the instrument was assigned to OneWest. In
April 2012, OneWest brought a document that was allegedly the original
note with a new extra page showing three rubber stamp indorsements.
According to Lamell, this copy of the note with the indorsements
contained bleed-through ink marks that were not visible on the certified
and authenticated note produced in October 2010.
 Lamell asserts that OneWest’s failure to originally produce the note with
the indorsements prevented him from conducting complete discovery and
therefore from discovering other fact issues. Based on these alleged
12
discovery violations, Lamell asserts the trial court should not have
considered the note produced in April 2012 as evidence.
 Even considering the 2012 note as evidence, there is an unexplained
indorsement gap between Home123 and CSMC Trust.
OneWest eventually produced the note Lamell signed with Home123
Corporation and that note had an indorsement from Home123 Corporation to New
Century Mortgage Corporation, an indorsement from New Century Mortgage
Corporation to IndyMac Bank [OneWest], and an indorsement in blank by
IndyMac Bank. With respect to this note, Lamell acknowledges that the document
produced by OneWest contains an indorsement in blank, but complains the trial
court should not have considered the note because OneWest did not initially
produce it in discovery. Lamell also asserts that some ink markings that bled
through to the front of the note raise fact-issues about the authenticity of the
instrument. Additionally, Lamell contends the assignment and securitization
issues, the potential forgery or fabrication of the evidence, and the discovery
violations show the note is void. But Lamell does not cite any authority holding
that any of these issues render the note void, nor does he explain how these issues
would render the note void.
With respect to Lamell’s argument that Home123 was an “extinct”
corporation, the record does not contain any evidence that Home123 no longer
exists or is incapable of assigning the note or deed of trust. Instead, Lamell states
on appeal that the bankruptcy of Home123 is “widely reported in the media” and
mentions that another case is pending in district court that references the
bankruptcy. The record does not contain evidence raising a fact-issue on Lamell’s
assertion that Home123 was “extinct” at the time it assigned the note and therefore
the note is void. To the extent Lamell asserts the bleed-through on the note shows
the assignments between third-parties were fabricated or forged, such a claim
13
would render the note merely voidable, not void. See Nobles v. Marcus, 533
S.W.2d 923, 926 (Tex. 1976); Morlock, L.L.C. v. Bank of New York, 448 S.W.3d
514, 517 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). Lamell has not cited,
nor have we found any authority suggesting that a discovery violation would
somehow make a note void. We conclude that the summary-judgment evidence
does not raise a fact issue on Lamell’s claim that the note is void.
We need not address Lamell’s other complaints regarding the note because
OneWest did not need to be the owner or holder of the note to foreclose since
OneWest was acting on behalf of the CSMC Trust, which held the deed of trust.
Non-judicial sales of real property under contract liens are governed by Chapter 51
of the Texas Property Code. See Tex. Prop. Code Ann. § 51.001, et seq. (West,
Westlaw through 2015 R.S.). Under section 51.0025, a mortgagee or a mortgage
service provider may conduct foreclosure proceedings without proving its status as
the owner and holder of the note. See Tex. Prop. Code Ann. § 51.0025 (West,
Westlaw through 2015 R.S.); Morlock, 447 S.W.3d at 47.
Lamell admits OneWest is servicing his mortgage. We already have
addressed Lamell’s complaints regarding the deed of trust and found they lack
merit. The summary-judgment evidence shows that the actions taken by OneWest
to foreclose were appropriate, even in the absence of proof that OneWest is the
owner and holder of the note. Because Lamell’s arguments are without merit, we
overrule his first issue with respect to his fraud claim.
D. Claims Under Fair Debt Collection Practices Acts
Lamell asserts a claim against OneWest under the federal Fair Debt
Collection Practices Act and its state counterpart, the Texas Fair Debt Collection
Practices Act. See 15 U.S.C. § 1692 (West, Westlaw through Pub. L. No.114-49);
Tex. Fin. Code Ann. § 392.001 et. seq. (West, Westlaw through 2015 R.S.).
14
Lamell challenges OneWest’s attempts to collect property taxes that Lamell was
actively protesting and that Lamell claims he did not owe. OneWest moved for
summary judgment on the ground that OneWest is not a debt collector within the
meaning of the federal and state Fair Debt Collection Practices Acts.
With respect to the both the federal and state Fair Debt Collection Practices
Acts, OneWest asserts that is not a debt collector within the meaning of 15 U.S.C.
§ 1692a(6). OneWest does not provide any additional citation or explanation for
why it is not a debt collector under the Texas Fair Debt Collection Practices Act.
OneWest simply cites the federal statute and alleges that it is not a debt collector
under the Texas Fair Debt Collection Practices Act.
The federal Fair Debt Collection Practices Act provides:
The term “debt collector” means any person who uses any
instrumentality of interstate commerce or the mails in any business the
principal purpose of which is the collection of any debts, or who
regularly collects or attempts to collect, directly or indirectly, debts
owed or due or asserted to be owed or due another.
15 U.S.C. § 1692(a). Section 1692(a)(6) further narrows the meaning of “debt
collector” by excluding “any person collecting or attempting to collect any debt
owed or due another to the extent such activity . . . concerns a debt which was not
in default at the time it was obtained by such person.” See id. § 1692(a)(6)(F)(iii).
Under 15 U.S.C. § 1692(a)(6), a debt collector does not include a mortgage
servicing company that began servicing the mortgage before it was in default. See
CA Partners v. Spears, 274 S.W.3d 51, 79 (Tex. App.—Houston [14th Dist.] 2008,
pet. denied); Miller v. BAC Home Loans Servicing, L.P., 726 F.3d 717, 723 (5th
Cir. 2013). The summary-judgment evidence shows OneWest was servicing
Lamell’s mortgage before the note went into default. As a matter of law, OneWest
is not a debt collector under the Fair Debt Collection Practice Act. The trial court
15
did not err in granting summary judgment with respect to Lamell’s claims under
the federal Fair Debt Collection Practices Act. See CA Partners, 274 S.W.3d at
79; Miller, 726 F.3d at 723.
Whether mortgage servicers constitute “debt collectors” under the Texas
Fair Debt Collection Practices Act appears to be an issue of first impression in
Texas. In construing a statute, our objective is to determine and give effect to the
Legislature’s intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527
(Tex. 2000). If possible, we must ascertain that intent from the language the
Legislature used in the statute and not look to extraneous matters for an intent the
statute does not state. Id. If the meaning of the statutory language is
unambiguous, we adopt the interpretation supported by the plain meaning of the
provision’s words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505
(Tex. 1997). We must not engage in forced or strained construction; instead, we
must yield to the plain sense of the words the Legislature chose. See id.
The Texas Fair Debt Collection Practices Act defines “debt collector” as “a
person who directly or indirectly engages in debt collection and includes a person
who sells or offers to sell forms represented to be a collection system, device, or
scheme intended to be used to collect consumer debts.” Tex. Fin. Code Ann. §
392.001(6) (West, Westlaw through 2015 R.S.). There are no statutory exceptions.
See id. The summary-judgment evidence shows that OneWest directly engaged in
collecting a debt and therefore qualifies as a debt collector under the plain
language of the Texas Fair Debt Collection Practices Act. See Miller, 726 F.3d at
723 (holding mortgage servicers are debt collectors under Texas Fair Debt
Collection Practices Act). See also Smith v. Heard, 980 S.W.2d 693, 697 (Tex.
App.—San Antonio 1998, pet. denied) (noting actors are not excused from
provision of Texas Fair Debt Collection Practices Act because debt is owed
16
directly to actor); Monroe v. Frank, 936 S.W.2d 654, 659–60 (Tex. App.—Dallas
1996, writ dism’d w.o.j.) (same). Because OneWest was not entitled to judgment
as a matter of law on its only summary-judgment ground against Lamell’s claim
under the Texas Fair Debt Collection Practices Act, the trial court erred in granting
summary judgment on this claim.5
E. Supersedeas Bond6
In the trial court, Lamell filed a motion to stay enforcement of the order
denying the temporary injunction or, in the alternative, to set a supersedeas bond
amount pending appeal. In the motion, Lamell argued that under Texas Rule of
Appellate Procedure 24, the trial court had the authority to set the amount of a
supersedeas bond that Lamell could file to supersede the order denying temporary
injunction while Lamell appealed this order, and Lamell urged the trial court to
grant this relief. OneWest opposed the motion.
The trial court granted Lamell’s request and determined that Lamell could
supersede the order denying his request for a temporary injunction during Lamell’s
appeal, and the trial court set the supersedeas amount that Lamell would have to
post to supersede the order. Lamell deposited cash with the trial court clerk in lieu
of a supersedeas bond. After Lamell’s interlocutory appeal was dismissed,
OneWest requested the release of these funds.
In Lamell’s second issue, Lamell asserts the trial court abused its discretion
in granting OneWest’s motion to authorize release of the supersedeas funds to
OneWest. In support of this issue, Lamell argues that (1) OneWest is not entitled
5
OneWest also asserted in its summary-judgment motion that it did nothing wrong, but
this ground is not sufficiently specific.
6
Lamell deposited cash in lieu of a supersedeas bond. Both parties refer to a supersedeas
bond in their briefs. We sometimes refer to the cash deposit as a supersedeas bond for ease of
reference.
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to receive the money because it has no authority to conduct foreclosure
proceedings and because there are fact issues as to whether the note and deed of
trust are void; (2) the trial court should not have stated that foreclosure proceedings
may go forward because OneWest did not seek this relief in its pleadings, nor did it
request a declaratory judgment under Chapter 37 of the Civil Practice and
Remedies Code; (3) OneWest did not request release of these funds in its
pleadings; and (4) Lamell was not a judgment debtor under Texas Rule of
Appellate Procedure 24.1.
As to the first argument, we already have addressed Lamell’s arguments that
the note and assignments are void, and the record reflects that OneWest had
authority to conduct foreclosure proceedings. With respect to Lamell’s second
argument, OneWest was not required to ask the trial court in its pleadings to state
in its order that foreclosure proceedings may advance, nor was OneWest required
to request declaratory relief in this regard.
As to Lamell’s third argument, OneWest was not required to amend its
pleadings for the trial court to release the cash deposited in lieu of a supersedeas
bond. OneWest’s motion requesting release of the cash in lieu of the supersedeas
bond was sufficient. Cf. Muniz v. Vasquez, 797 S.W.2d 147, 150 (Tex. App.—
Houston [14th Dist.] 1990, no pet.). With respect to Lamell’s fourth argument,
Lamell urged the trial court to set the supersedeas amount so that he could
supersede the order denying temporary injunction. Over OneWest’s opposition,
Lamell argued the trial court could and should supersede this order under Texas
Rule of Appellate Procedure 24. The trial court granted Lamell’s request and
allowed him to supersede the denial of the temporary injunction.
Now, on appeal, Lamell argues that he was not a judgment debtor under
Texas Rule of Appellate Procedure 24.1. If that assertion is true, Lamell was not
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entitled to supersede the order under that rule. Lamell argues that the trial court
should not have granted his request to allow him to supersede the order because
there was nothing to supersede in the trial court. Under the doctrine of invited
error, a party cannot request a specific action in the trial court and then complain
on appeal that the trial court committed error in granting the requested relief. See
Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005); Gordon v. Gordon,
No. 14-10-01031-CV, 2011 WL 5926723, at *7 (Tex. App.—Houston [14th Dist.]
Nov. 29, 2011, no pet.) (mem. op.). Lamell is estopped from arguing now that the
trial court erred in granting him the very relief he requested. See Weidner v.
Sanchez, 14 S.W.3d 353, 366–67 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
The invited-error doctrine prevents Lamell from denying that the bond posted was
a supersedeas bond and from arguing that the trial court erred in ordering it. See
Tittizer, 171 S.W.3d at 862; Gordon, 2011 WL 5926723, at *7.
Because Lamell’s first, second, third, and fourth arguments lack merit,we
overrule Lamell’s second issue. See Tittizer, 171 S.W.3d at 862; Gordon, 2011
WL 5926723, at *7.
III. CONCLUSION
The trial court erred in granting OneWest’s summary-judgment motion with
respect to Lamell’s claims for declaratory judgment, unlawful tax collection,
unlawful levy and illegal lien, wrongful acceleration/foreclosure, violation of Real
Estate Settlement Procedures Act, violation of the Texas Fair Debt Collection
Practices Act, unjust enrichment, slander of title, mortgage or title fraud, false
pretense, civil conspiracy, mail fraud, breach of contract, or any claim asserted in
Lamell’s supplemental petition, supplement to the supplemental petition, or second
supplement to the supplemental petition. We therefore reverse the trial court’s
judgment with respect to these claims and remand the claims to the trial court. The
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trial court did not err in granting summary judgment with respect to the remainder
of Lamell’s claims. Accordingly, we affirm the remainder of the trial court’s
judgment.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Boyce and McCally.
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