MICHAEL MASSENGALE, Justice.
Appellee Deutsche Bank National Trust Company, N.A., foreclosed on a house owned by appellant Winona Flippon Vazquez. After the foreclosure sale, Vazquez sued Deutsche Bank. She alleged that the assignment of the note and deed of trust by her original lender to Deutsche Bank was invalid, and that therefore the foreclosure was also invalid. Deutsche Bank moved for summary judgment, arguing that Vazquez lacked standing to file the lawsuit to protect her interest in her own home by challenging the validity of the assignment. The trial court agreed with the bank and entered judgment in its favor.
We conclude that the bank failed to establish as a matter of law that Vazquez lacks standing to challenge an allegedly void or invalid assignment of a deed of trust that affects the chain of title of property as to which she claims a superior ownership interest. Accordingly, we reverse this portion of the trial court's order and remand for further proceedings.
Winona Vazquez owned a house in Houston. She borrowed money from Argent Mortgage Company and executed a note and deed of trust in its favor. Argent engaged Citi Residential Lending, Inc. as mortgage servicer and gave it a limited power of attorney to act on its behalf. Citi's board of directors delegated its authority in this regard to some of its employees, including one named Bryan Bly. The document purporting to assign the deed of trust and note to Deutsche Bank bears a signature over a line indicating that it was signed by "BRYAN BLY VICE PRESIDENT." It was filed in the public real property records of Harris County.
When Vazquez defaulted on her loan, Deutsche Bank foreclosed. A substitute trustee conducted a non-judicial foreclosure and delivered a foreclosure deed to Deutsche Bank, which was recorded. Several months later, Vazquez filed suit against Deutsche Bank. Her petition prayed for rescission of the foreclosure sale and deed, as well as a declaratory judgment quieting title to the property in her name.
Vazquez's petition alleged several reasons why the document purporting to assign the note and deed of trust to Deutsche Bank was invalid. She argued that assignment of the deed of trust was outside the power granted to Citi by the limited power of attorney it received from Argent. She also contended that the assignment agreement was made after the date when the trust or "pool" of mortgages to which Argent contributed Vazquez's loan was "closed." Finally, she claimed that Bly's electronic signature was affixed to the assignment by someone else without his knowledge or approval.
Deutsche Bank moved for traditional summary judgment, TEX.R. CIV. P. 166a(c), claiming that Vazquez was not a party to the assignment of her mortgage, and thus she had no standing to challenge it. No evidence was attached to the summary judgment motion — it was advanced based solely on the face of Vazquez's pleadings and on purely legal grounds. After Vazquez filed a response with attached evidence, and Deutsche Bank replied, the
Vazquez argues that the trial court erred in granting summary judgment in favor of Deutsche Bank because she had standing to challenge a void or invalid assignment of a deed of trust pertaining to property which she claims to own.
Traditional summary judgments are reviewed de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). The movant has the burden of showing that no genuine issue of material fact exists and that it is therefore entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). In this case, Deutsche Bank did not attach evidence to its motion for summary judgment. When a defendant thus moves for summary judgment "on the pleadings," we take "all allegations, facts, and inferences in the pleadings as true and view[] them in a light most favorable to the pleader." Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994).
"A court has no jurisdiction over a claim made by a plaintiff without standing to assert it." DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex.2008). "For standing, a plaintiff must be personally aggrieved; his alleged injury must be concrete and particularized, actual or imminent, not hypothetical." Id. at 304-05 (footnotes omitted). "A plaintiff does not lack standing simply because he cannot prevail on the merits of his claim; he lacks standing because his claim of injury is too slight for a court to afford redress." Id. at 305.
In her brief, Vazquez contends that "Texas follows the common law rule permitting a debtor to assert against an assignee any ground that renders the assignment void or invalid." She relies upon Tri-Cities Construction, Inc. v. American National Insurance Co., 523 S.W.2d 426 (Tex.Civ.App.-Houston [1st Dist.] 1975, no writ), in which this court wrote: "The law is settled that the obligors of a claim may defend the suit brought thereon on any ground which renders the assignment void, but may not defend on any ground which renders the assignment voidable only...." 523 S.W.2d at 430 (citing Glass v. Carpenter, 330 S.W.2d 530 (Tex.Civ.App.-San Antonio 1959, writ ref'd n.r.e.)). The authority for this proposition may be traced to Corpus Juris Secundum:
6 C.J.S. Assignments § 132 (quoted in Glass, 330 S.W.2d at 537).
As a matter of precedent and policy, a Texas mortgagor has standing to challenge an assignment of a deed of trust in the chain of title of a rival claimant to land that she owns. See Tri-Cities, 523 S.W.2d at 430; Glass, 330 S.W.2d at 537. If foreclosure on a home is initiated by a person or entity whose right to foreclose is contingent upon the validity of an assignment, the homeowner has standing to attack the assignment and thereby seek to stop or reverse the foreclosure. Such a homeowner is "personally aggrieved" because she is at risk of losing her house, and the allegation of such an injury is sufficiently "concrete and particularized" to confer standing to sue. See DaimlerChrysler, 252 S.W.3d at 304. As courts
In the time since the trial court entered summary judgment in this case and Vazquez brought this appeal, the United States Court of Appeals for the Fifth Circuit issued a decision persuasively explaining the law in Texas on the standing of a property owner to challenge an assignment of her note and deed of trust. See Reinagel v. Deutsche Bank Nat. Trust Co., 735 F.3d 220 (5th Cir.2013). Although the court in Reinagel ultimately affirmed the dismissal of the mortgagor's suit, it expressly declined to do so on the basis, advocated by the bank, that the mortgagor lacked standing to challenge the validity of an assignment. As a general rule, "a non-party to a contract cannot enforce the contract unless she is an intended third-party beneficiary." Id. at 224-25 (citing S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 306 (Tex.2007)). However, that rule does not apply when a party, rather than seeking to enforce the contract, instead alleges that the contract was void from the outset. Id. at 225. Relying on the precedent of this court in Tri-Cities, the Fifth Circuit correctly observed that Texas courts adhere to "the majority rule that the obligor may defend `on any ground which renders the assignment void.'" Id. (quoting Tri-Cities, 523 S.W.2d at 430). The federal court also noted the logic of the Texas law in this regard, considering that "[a] contrary rule would lead to the odd result that [a bank] could foreclose on [a mortgagor's] property though it is not a valid party to the deed of trust or promissory note, which ... should mean that [the bank] lacks `standing' to foreclose." Id.
In its brief, Deutsche Bank recognizes that the analysis in Reinagel is applicable to the present case but argues that the Fifth Circuit misread Texas law. The bank emphasizes the use of the words "may defend" in Tri-Cities, 523 S.W.2d at 430, and argues that a mortgagor's ability to challenge an assignment is limited to cases in which the mortgagor is a defendant defending a suit by the assignee. We disagree. Glass v. Carpenter, 330 S.W.2d 530 (Tex.Civ.App.-San Antonio 1959, writ ref'd n.r.e.), the prior authority relied upon by this court in Tri-Cities, itself concerned a suit by a plaintiff to declare null and void an assignment to which the plaintiff was not a party. See 330 S.W.2d at 531. Likewise, Reinagel began as a suit brought by mortgagors to enjoin non-judicial foreclosure proceedings instituted against their property by the defendant assignee. See Reinagel, 735 F.3d at 222. The Reinagel court correctly reasoned that to hold that the mortgagors lacked standing would have the "odd" result of leaving mortgagors without a remedy against putative assignees who pursue non-judicial foreclosures based on void assignments but who themselves are not valid parties to the deed of trust and thus lack standing to foreclose. See id. at 225.
Vazquez therefore has standing to pursue her suit to quiet title if her petition includes allegations that, if true, would render the assignment void. In this case, she argues that the assignment is void because the signature it bears is forged.
A forged deed is void. See Dyson Descendant Corp. v. Sonat Exploration
In her petition, Vazquez alleged:
Vazquez thus alleged in her original petition that the assignment to Deutsche Bank was "void" and that Bly's signature on the assignment was affixed by someone else who acted without his knowledge or approval. This was an allegation of forgery, and as such, an allegation that the assignment was void. See Nobles, 533 S.W.2d at 926; Dyson, 861 S.W.2d at 947.
Deutsche Bank argues that Vazquez is claiming forgery for the first time on appeal and did not raise it in her petition. It contends that Vazquez "never used the word `forgery,'" but instead actually asserted in her petition that "Bryan Bly signed the conveyance to Deutsche" or used words to similar effect. It also claims that Vazquez never alleged that Bly's electronic signature, if used by another, was used without his authorization. Deutsche Bank thus argues that Vazquez alleged only that the assignment was made without authorization, therefore it was voidable but not void, and accordingly she lacks standing.
"Texas is a notice pleading jurisdiction, and a `petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim. The purpose of this rule is to give the opposing party information sufficient to enable him to prepare a defense.'" Kopplow Dev. Corp. v. City of San Antonio, 399 S.W.3d 532, 536 (Tex.2013) (quoting Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982)). As such, Vazquez's pleadings did not need to use any specific words such as "forgery" or be a model of draftsmanship. With specific respect to the examples referenced by Deutsche Bank where Vazquez's petition made reference to "Bly's signature" or "Bly signing," the context must be considered, and in this circumstance that context includes Vazquez's additional allegations about the authenticity of the signature on the assignment, which she had alleged was outside the authority of Bly and Citi to make on behalf of Argent. In addition to her allegations
Moreover, this argument manifestly has not been raised for the first time on appeal. In her response to Deutsche Bank's motion for summary judgment, Vazquez repeated the essential substance of this argument. Under the subject heading of "standing," she argued that "Deutsche's ownership claim based on a public record assignment is void because an unauthorized person, Bryan Bly, signed the conveyance to Deutsche," noting and providing evidence that Bly admitted, in deposition testimony, "that others routinely use his signatures without his supervision, approval or personal knowledge." Thus, in direct response to the summary judgment motion based on a challenge to her standing, Vazquez specifically responded with an argument that she had standing to challenge the assignment to Deutsche Bank as "void" because it bore a signature made without the "supervision, approval, or personal knowledge" of the person who purportedly signed it. The word "forgery" does not appear, but the substance of the argument suggests precisely that.
Since Vazquez's petition adequately alleges forgery, and her response to the summary judgment motion raised that argument as the reason why she contends the assignment to Deutsche Bank was void, the trial court should not have granted summary judgment on the basis that she lacked standing to pursue her quiet-title claim. We sustain her sole appellate issue.
Though not addressed by Vazquez's appellate issue, there was a separate cause of action alleged in her petition. Relying on the same factual allegations discussed above, Vazquez purported to state a claim under section 51.901 of the Government Code that the assignment was "fraudulent" and unlawfully filed in the public records.
This claim was addressed by Deutsche Bank's motion for summary judgment. The bank argued that the Government Code claim failed as a matter of law because the provision relied upon by Vazquez addresses only the filing of documents that purport to create a lien, not documents that purport to transfer one.
Vazquez's arguments on appeal do not extend to contesting Deutsche Bank's argument, made in its motion for summary judgment, that regardless of standing, her claim under the Government Code fails as a matter of law. As such, we do not review, and must leave undisturbed, the trial court's entry of summary judgment as to Vazquez's claim under the Government Code. See Jacobs v. Satterwhite, 65 S.W.3d 653, 655 (Tex.2001) (per curiam) (holding that court of appeals erred in reversing summary judgment as to both claims when appellant only challenged grounds for summary judgment as to one of the claims).
We reverse that portion of the trial court's summary-judgment order dismissing Vazquez's quiet-title claim and remand the claim for further proceedings consistent with this opinion.