Opinion issued December 30, 2014




                                   In The

                           Court of Appeals
                                   For The

                       First District of Texas
                         ————————————
                           NO. 01-13-00949-CV
                         ———————————
                      MORLOCK, L.L.C., Appellant
                                     V.
    THE BANK OF NEW YORK, AS TRUSTEE ON BEHALF OF THE
     CERTIFICATE HOLDERS OF CWABS, INC., ASSET BACKED
            CERTIFICATES, SERIES 2004-13, Appellee


           On Appeal from the County Civil Court at Law No. 3
                         Harris County, Texas
                     Trial Court Case No. 1024144


      SUPPLEMENTAL OPINION ON MOTION FOR REHEARING
     In our opinion dated August 19, 2014, we affirmed a summary judgment in

favor of The Bank of New York. See Morlock, L.L.C. v. Bank of New York, No.

01-13-00949-CV, 2014 WL 4085771 (Tex. App.—Houston [1st Dist.] Aug. 19,
2014). Appellant Morlock, L.L.C. has filed a motion for rehearing. It suggests that

our opinion created a split in authority with the Fourteenth Court of Appeals

regarding its standing, as a third party to the transactions at issue, to challenge an

allegedly fraudulent assignment clouding its title to property. We deny the motion

for rehearing, and provide the following explanation for our conclusion that there

is no conflict.

       We previously held that because the allegation of fraud in this case would

render the challenged assignment merely voidable at the election of the grantor,

Morlock lacked “standing” to challenge it as a third party to that transaction. Bank

of New York, 2014 WL 4085771 at *2–3. The Fourteenth Court of Appeals, in a

decision issued twelve days before ours and with apparently similar facts, held that

Morlock had “standing” to challenge a different assignment, precisely because it

sought to invalidate the assignment as a cloud on its title. Morlock, L.L.C. v.

Nationstar Mortg., L.L.C., No. 14-12-01117-CV, 2014 WL 3866478 at *3 (Tex.

App.—Houston [14th Dist.] Aug. 7, 2014, pet. struck). Despite prevailing on the

standing issue in the Fourteenth Court, Morlock nevertheless lost its appeal on the

merits of that case.

       In Nationstar, the Fourteenth Court analyzed the standing question using the

rubric of Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845 (Tex. 2005), i.e.,

whether there existed a “real controversy” between the parties that would “actually



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be determined by the judicial declaration sought.” See Lovato, 171 S.W.3d at 849

(quoting Nootsie, Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 662

(Tex. 1996)). In contrast, our opinion did not address that specific issue or question

Morlock’s “standing” in that particular sense.

      Rather, our decision was based on a different rule of law, established by

Nobles v. Marcus, 533 S.W.2d 923 (Tex. 1976). In Nobles, the Supreme Court of

Texas explained that “[d]eeds procured by fraud are voidable only, not void, at the

election of the grantor.” Nobles, 533 S.W.2d at 926. The effect of the Nobles rule

in this appeal is that to the extent Morlock is aggrieved by a fraudulent assignment

from the grantor (MILA) to the grantee (Countrywide), the substantive law does

not provide a stranger to the transaction (such as Morlock) any cause of action to

challenge that fraudulent assignment. Even assuming the truth of Morlock’s

allegations, the assignment is not void. It is voidable only, at the election of the

MILA, the grantor. It is not voidable by Morlock.

      Nobles provided this further pertinent explanation for the rule:

      It is settled that such a deed is valid and represents prima facie
      evidence of title until there has been a successful suit to set it aside.
      Meiners v. Texas Osage Cooperative Royalty Pool, 309 S.W.2d 898
      (Tex. Civ. App.—El Paso 1958, writ ref’d n.r.e.); Whalen v.
      Richardson, 353 S.W.2d 941 (Tex. Civ. App.—Amarillo 1962,
      n.w.h.). To the same effect is Deaton v. Rush, 113 Tex. 176, 252 S.W.
      1025 (1923), wherein this court stated that:
             A deed obtained by fraud is not void but voidable only.
             As between the original parties Rush’s title is prima facie


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            good, and it could only be avoided by a suit and a decree
            annulling and canceling the deed.

      It is a fundamental rule of law that only the person whose primary
      legal right has been breached may seek redress for an injury. In
      American Nat. Ins. Co. v. Hicks, 35 S.W.2d 128 (Com. App. 1931,
      judgm. adopted), a right of action was defined as follows:

            The right to maintain an action depends upon the
            existence of what is termed a cause of action, which
            involves the combination of a right on the part of the
            plaintiff and a violation of such right by defendant.

      Without breach of a legal right belonging to the plaintiff no cause of
      action can accrue to his benefit. A suit to set aside a deed obtained by
      fraud can only be maintained by the defrauded party. Smith v. Carter,
      45 S.W.2d 398 (Tex. Civ. App.—Texarkana 1932, writ dism’d);
      Meiners v. Texas Osage Cooperative Royalty Pool, supra. A party
      who was not defrauded by the conveyance has not suffered an
      invasion of a legal right and therefore does not have standing to bring
      suit based on that fraud.
Nobles, 533 S.W.2d at 926-27. Thus, as we explained in our decision, even if

Morlock is aggrieved by a cloud of title stemming from a fraudulent assignment

from MILA to Countrywide, the substantive law nevertheless does not provide

Morlock with a cause of action against the current holder of the deed clouding

Morlock’s title. The challenged assignment may be voidable by MILA, the party

that would have been directly harmed by the alleged fraud. In the absence of action

by MILA to challenge the assignment as void, the deed is “prima facie good” as

between MILA and Countrywide.

      The Supreme Court’s resolution of Nobles was directly cast in terms of a

lack of “standing,” and the analysis of our opinion echoed that holding. The

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Supreme Court stated: “A party who was not defrauded by the conveyance has not

suffered an invasion of a legal right and therefore does not have standing to bring

suit based on that fraud.” Id. at 927. Morlock’s motion for rehearing does not

question the continuing validity of Nobles—in fact, the motion does not mention

Nobles. Nor did the Fourteenth Court’s Nationstar opinion. Regardless of whether

the Supreme Court today still would apply the label of “standing” to the

substantive rule of law announced in Nobles, the outcome is the same for Morlock:

“A suit to set aside a deed obtained by fraud can only be maintained by the

defrauded party.” Id.




                                            Michael Massengale
                                            Justice

Panel consists of Justices Jennings, Bland, and Massengale.




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