                                                                               ACCEPTED
                                                                           03-15-00382-CV
                                                                                   7816336
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                    11/13/2015 10:54:10 AM
                                                                         JEFFREY D. KYLE
                                                                                    CLERK
                     NO. 03-15-00382-CV
       ______________________________________________FILED IN
                                                3rd COURT OF APPEALS
       IN THE THIRD COURT OF APPEALS OF TEXAS       AUSTIN, TEXAS
                                               11/13/2015 10:54:10 AM
                                                  JEFFREY D. KYLE
       ______________________________________________   Clerk

                 STEVEN B. ARMBRUSTER,
                        Appellant

                              V.

       DEUTSCHE BANK NATIONAL TRUST COMPANY,
                      Appellee

       ______________________________________________

              Appeal from the 277th District Court
                  Williamson County, Texas

       ______________________________________________

                     APPELLEES' BRIEF
       ______________________________________________

                 Peter C. Smart
                 Texas Bar No. 00784989
                 CRAIN, CATON & JAMES, P.C.
                 1401 McKinney St., Suite 1700
                 Houston, Texas 77010
                 (713) 658-2323 (Telephone)
                 (713) 658-1921 (Facsimile)
                 psmart@craincaton.com
                 Attorneys for Appellees, Deutsche Bank National Trust
                 Company as Indenture Trustee for New Century Home
                 Equity Loan Trust 2004-2 and Juanita Strickland

ORAL ARGUMENT REQUESTED
                                      TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................i 

TABLE OF AUTHORITIES ................................................................................... iii 

STATEMENT OF THE CASE .................................................................................iv 

REQUEST FOR ORAL ARGUMENT ....................................................................iv 

STATEMENT REGARDING RECORD REFERENCES.......................................iv 

ISSUES PRESENTED............................................................................................... v 

        Issue 1

        Appellant contends that the summary judgment evidence does not
        demonstrate that Carrington Mortgage Services, LLC (a non-party)
        was the mortgage servicer for the subject loan. Appellant did not
        raise that issue in the trial court, either in his response to the motion
        for summary judgment or at the hearing. Can Appellant raise an issue
        on appeal seeking to reverse a summary judgment when he did not
        raise the issue in the trial court?

        Issue 2

        The summary judgment evidence demonstrates that Carrington
        Mortgage Services, LLC was the mortgage servicer for the subject
        loan. There is no summary judgment evidence to the contrary. Can
        the summary judgment be reversed when the evidence conclusively
        demonstrates that Carrington Mortgage Services, LLC was the
        mortgage servicer for the subject loan?

STATEMENT OF FACTS ........................................................................................ 1 

SUMMARY OF ARGUMENT ................................................................................. 5 




                                                        i
ARGUMENT ............................................................................................................. 7 

         1.        Standard for Affirming Summary Judgment......................................... 7 

         2.        Armbruster Waived Any Contention that Carrington Is Not the
                   Mortgage Servicer for the Note and Deed of Trust. ............................. 7 

         3.        The summary judgment evidence demonstrates that Carrington
                   was the Mortgage Servicer for the Note and Deed of Trust. ................ 8 

         4.        The summary judgment evidence demonstrates that Carrington
                   Was Entitled to Summary Judgment. .................................................. 10 

PRAYER .................................................................................................................. 10 

CERTIFICATE OF COMPLIANCE ....................................................................... 11 

CERTIFICATE OF SERVICE ................................................................................ 12 




                                                             ii
                                    TABLE OF AUTHORITIES



Cases 
Bradley v. State ex rel. White, 990 S.W. 2d 245 (Tex. 1999)....................................7

City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex. 1979) .......8

McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (Tex. 1993)..................7

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) ...................................7

Travis v. City of Mesquite, 830 S.W.2d 94 (Tex. 1992) ............................................8

Statutes 
Texas Business & Commerce Code, Section 3.205 ..................................................2

Rules 
Tex. R. Civ. P., Rule 166a(c) .....................................................................................7




                                                        iii
                        STATEMENT OF THE CASE
      Appellant filed suit contending that the foreclosure of his residence is void

(CR pages 7 - 17).       Appellees each filed an answer denying Appellant’s

contentions (CR pages 104 – 109 & 110 - 119).

      Appellees filed a motion for summary judgment (CR pages 125 - 240). The

trial court granted the motion and entered judgment in favor of Appellees (CR

pages 367 - 369). Appellant appeals the summary judgment.



                    REQUEST FOR ORAL ARGUMENT
      Appellees believe this case can be decided without the benefit of oral

argument, but would welcome the opportunity.



          STATEMENT REGARDING RECORD REFERENCES
      The Clerk’s Record has one volume. References to the Clerk’s Record will

be shown by “CR page number.”           The Reporter’s Record has 1 volume.

References to the Reporter’s Record will be shown by “RR page number.”




                                        iv
                              ISSUES PRESENTED

                                       Issue 1

       Appellant contends that the summary judgment evidence does not
demonstrate that Carrington Mortgage Services, LLC (a non-party) was the
mortgage servicer for the subject loan. Appellant did not raise that issue in the trial
court, either in his response to the motion for summary judgment or at the hearing.
Can Appellant raise an issue on appeal seeking to reverse a summary judgment
when he did not raise the issue in the trial court?


                                       Issue 2

      The summary judgment evidence demonstrates that Carrington Mortgage
Services, LLC was the mortgage servicer for the subject loan. There is no
summary judgment evidence to the contrary. Can the summary judgment be
reversed when the evidence conclusively demonstrates that Carrington Mortgage
Services, LLC was the mortgage servicer for the subject loan?




                                          v
                            NO. 03-15-00382-CV
            ______________________________________________

            IN THE THIRD COURT OF APPEALS OF TEXAS

            ______________________________________________

                        STEVEN B. ARMBRUSTER,
                               Appellant

                                      V.

           DEUTSCHE BANK NATIONAL TRUST COMPANY,
                          Appellee

            ______________________________________________

                            APPELLEES' BRIEF
            ______________________________________________


                         STATEMENT OF FACTS
      Appellant Steven Armbruster (“Armbruster”) borrowed $151,000 from New

Century Mortgage Corporation (“New Century”) on May 7, 2004 in order to

purchase residential real estate located at 621/623 Greenlawn Boulevard, Round

Rock, Texas 78664 (the “Property”) (CR page 157). The loan is memorialized via

a promissory note (the “Note”) executed by Armbruster and issued to New Century

(CR pages 141 - 143).

      Armbruster also executed a Deed of Trust (the “Deed of Trust”) that was

issued to New Century (CR pages 144 - 159). The Deed of Trust, which provides


                                      1
a lien on the Property to secure Armbruster’s obligations under the Note and Deed

of Trust, provides, among other things, that:

      Sec. 20. Sale of Note; … The Note … (together with this Security
      Instrument) can be sold one or more times without prior notice to
      Borrower (CR page 154)

      New Century indorsed and assigned the Note to Appellee Deutsche Bank

National Trust Company as Indenture Trustee for New Century Home Equity Loan

Trust 2004-2 (“Deutsche Bank, as Trustee of the Mortgage Trust”) pursuant to

Section 3.205 of the Texas Business & Commerce Code shortly after the loan was

made (CR pages 143, 236 – 238 & 239 - 240). Deutsche Bank, as Trustee of the

Mortgage Trust, has possession of the original Note, as indorsed (CR pages 236 –

238 & 239 - 240).

      New Century, which retained servicing rights to the Note after it was

assigned, filed for bankruptcy in the United States Bankruptcy Court for the

District of Delaware in April 2007. In May 2007, the bankruptcy court approved

the sale of New Century’s servicing business to Carrington Mortgage Services,

LLC (“Carrington”) and authorized New Century to execute all documents,

instruments and papers necessary to effectuate the sale of its servicing business to

Carrington (CR page 172).

      New Century and the liquidating trustee in New Century’s bankruptcy case

each executed separate limited powers of attorney appointing Carrington as

                                          2
attorney in fact and authorizing Carrington to execute deeds of trust/mortgage note

endorsements, assignments of deed of trust/mortgage, assign mortgages and do any

other act and complete any other document required in the normal course of

servicing (CR pages 190 & 191). Deutsche Bank, as Trustee of the Mortgage

Trust, also executed a limited power of attorney appointing and authorizing

Carrington to be the mortgage servicer and its attorney-in-fact as to the Note and

Deed of Trust (CR pages 192 - 196). Carrington services, and at all pertinent times

hereto has serviced, the Note and Deed of Trust on behalf of Deutsche Bank, as

Trustee of the Mortgage Trust (CR pages 236 - 238).

      The assignment of the Note and Deed of Trust to Deutsche Bank, as Trustee

of the Mortgage Trust, is memorialized via an instrument entitled Assignment of

Note and Deed of Trust, which is on file in the Williamson County real property

records (CR page 197).

      Armbruster defaulted several times (CR pages 198 – 203, 207, 208 – 212 &

236 - 238). Armbruster has not made a payment on the Note since September

2010 (CR pages 207 & 236 - 238).

      Carrington provided Plaintiff with notice of default and an opportunity to

cure in February 2011 (CR pages 208 212).         In that notice of default letter,

Carrington informed Armbruster that it was servicing the Note and Deed of Trust




                                        3
under a mortgage servicing agreement and pursuant to the Texas Property Code

(CR pages 208 – 209).

      Carrington provided Armbruster with notice of acceleration of the Note two

different times (CR pages 215 – 225 & 226 - 231). The foreclosure trustee named

in the Deed of Trust was removed and a substitute trustee appointed in April 2011,

as reflected in a document entitled Removal of Trustee - Appointment of Substitute

Trustee, which is on file in the Williamson County real property records (CR pages

213 - 214).

      A foreclosure was posted for October 2011, and Armbruster was provided

notice of the foreclosure sale (CR pages 226 – 231 & 232 - 233). Deutsche Bank,

as Trustee of the Mortgage Trust, purchased the Property at the foreclosure sale

(CR pages 232 - 235).

      Armbruster filed this suit contending that the foreclosure sale is void

because (according to Armbruster) the assignment of the Note and Deed of Trust to

Deutsche Bank, as Trustee of the Mortgage Trust, is void and also because

(according to Armbruster) there is no evidence that Carrington was appointed

attorney in fact for New Century (CR page 12). Armbruster did not allege that

Carrington was not the servicer of the Note and Deed of Trust (CR pages 7 – 17).

      Appellees filed a motion for summary judgment under both traditional and

no evidence grounds (CR pages 125 – 240). Armbruster filed a response, but did

                                        4
not contend in his response that Carrington was not the mortgage servicer for the

Note and Deed of Trust (CR pages 241 – 366) nor did Armbruster argue at the

summary judgment hearing that Carrington was not the mortgage servicer for the

Note and Deed of Trust (RR pages 1 – 30).

      The trial court granted Appellees’ motion for summary judgment, disposing

of all issues in the case (CR 367 – 369).

      Armbruster filed this appeal, contending that: (i) the no evidence portion of

the motion for summary judgment was flawed; and (ii) the summary judgment

record does not demonstrate that Carrington was the servicer of the Note and Deed

of Trust, an issue Armbruster did not raise at the trial court level.

                          SUMMARY OF ARGUMENT
      Armbruster asserts, for the first time on appeal, that Carrington was not the

mortgage servicer for the Note and Deed of Trust. That assertion cannot form the

basis for reversal of the trial court’s summary judgment because that contention

was not expressly presented to the trial court in writing in response to the motion

for summary judgment.

      Moreover, the summary judgment evidence conclusively demonstrates that

Carrington was the mortgage servicer. The Delaware bankruptcy court approved

the sale of New Century’s servicing business to Carrington in 2007.




                                            5
      New Century and the liquidating trustee for New Century’s bankruptcy each

signed limited powers of attorney appointing Carrington as attorney in fact and

authorizing Carrington to take any action as mortgage servicer.

      Deutsche Bank, as Trustee of the Mortgage Trust, executed a limited power

of attorney appointing and authorizing Carrington to be the mortgage servicer and

its attorney-in-fact as to the Note and Deed of Trust.

      Carrington testified under oath that, at all pertinent times, it has serviced the

Note and Deed of Trust on behalf of Deutsche Bank, as Trustee of the Mortgage

Trust. Carrington provided Plaintiff with a notice of default and an opportunity to

cure letter in February 2011 wherein it informed Armbruster that it was servicing

the Note and Deed of Trust under a mortgage servicing agreement and pursuant to

the Texas Property Code.

      Armbruster offered no summary judgment evidence to contradict any of that

evidence.

      Armbruster has not raised any other issue on appeal contends that Appellees

were not entitled to judgment on its traditional motion for summary judgment. The

record on appeal conclusively demonstrates that Appellees’ traditional motion for

summary judgment should be affirmed. Therefore, there is no need to address

whether the no evidence portion of the motion should be affirmed.




                                          6
                                   ARGUMENT

      1.     Standard for Affirming Summary Judgment
      A party moving for summary judgment on traditional grounds has the

burden of showing no genuine issue of material fact exists and that it is entitled to

judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop.

Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). If a summary judgment order does

not specify the ground or grounds relied upon for a ruling, the ruling will be upheld

if any of the grounds in the summary judgment motion can be sustained. Bradley

v. State ex rel. White, 990 S.W. 2d 245, 247 (Tex. 1999).

      2.     Armbruster Waived Any Contention that Carrington Is Not the
             Mortgage Servicer for the Note and Deed of Trust.
      Armbruster’s contention that Carrington was not the mortgage servicer for

the Note and Deed of Trust was not raised at the trial court level. Therefore,

Armbruster waived that issue as a basis for appeal. The Texas Rule of Civil

Procedure pertaining to a motion for summary judgment specifically provides:

             Issues not expressly presented to the trial court by written
             motion, answer of other response shall not be considered
             on appeal as grounds for reversal. Tex. R. Civ. P.
             166a(c).

      An issue that a non-movant contends avoid a movant’s entitlement to

summary judgment must be expressly presented by written answer to the motion or

by other written response. See McConnell v. Southside Indep. Sch. Dist., 858

S.W.2d 337, 341 (Tex. 1993). In an appeal from a summary judgment, issues to be
                                       7
reviewed by the appellate court must have been actually presented to and

considered by the trial court. See City of Houston v. Clear Creek Basin Authority,

589 S.W.2d 671, 675-77 (Tex. 1979). Issues not expressly presented to the trial

court by written motion, answer or other response shall not be considered on

appeal as grounds for reversal. See Travis v. City of Mesquite, 830 S.W.2d 94, 99-

100 (Tex. 1992).

      Armbruster did not contend in his response to the motion for summary

judgment that Carrington was not the mortgage servicer of the Note and Deed of

Trust (CR pages 241 – 366) nor did Armbruster argue at the summary judgment

hearing that Carrington was not the mortgage servicer of the Note and Deed of

Trust (RR pages 1 – 30). Therefore, Armbruster’s contention that Carrington was

not the mortgage servicer for the Note and Deed of Trust may not be considered as

a basis for appeal of the summary judgment in this case.

      3.    The summary judgment evidence demonstrates that Carrington
            was the Mortgage Servicer for the Note and Deed of Trust.
      The summary judgment evidence demonstrates that Carrington Mortgage

Services, LLC was the mortgage servicer for the Note and Deed of Trust.

      In May 2007, the Delaware bankruptcy court approved the sale of New

Century’s servicing business to Carrington and authorized New Century to execute

all documents, instruments and papers necessary to effectuate the sale of its

servicing business to Carrington (CR page 172).

                                         8
      New Century and the liquidating trustee in New Century’s bankruptcy case

each executed separate limited powers of attorney appointing Carrington as

attorney in fact and authorizing Carrington to execute deeds of trust/mortgage note

endorsements, assignments of deed of trust/mortgage, assign mortgages and do any

other act and complete any other document required in the normal course of

servicing (CR pages 190 & 191).

      Deutsche Bank, as Trustee of the Mortgage Trust, executed a limited power

of attorney appointing and authorizing Carrington to be the mortgage servicer and

its attorney-in-fact as to the Note and Deed of Trust (CR pages 192 - 196).

      Carrington testified under oath that, at all pertinent times, it has serviced the

Note and Deed of Trust on behalf of Deutsche Bank, as Trustee of the Mortgage

Trust (CR pages 236 - 238).

      Carrington provided Plaintiff with a notice of default and an opportunity to

cure letter in February 2011 wherein it informed Armbruster that it was servicing

the Note and Deed of Trust under a mortgage servicing agreement and pursuant to

the Texas Property Code (CR pages 208 – 209).

      Armbruster offered no summary judgment evidence to contradict any of that

evidence. Therefore, the summary judgment evidence conclusively demonstrates

that Carrington was the mortgage servicer for the Note and Deed of Trust.




                                          9
      4.    The summary judgment evidence demonstrates that Carrington
            Was Entitled to Summary Judgment.
      Armbruster has not raised any other issue on appeal contending Appellees

were not entitled to judgment on its traditional motion for summary judgment. The

record on appeal conclusively demonstrates that Appellees’ traditional motion for

summary judgment should be affirmed. Therefore, there is no need to address

whether the no evidence portion of the motion should be affirmed.

                                   PRAYER
      Wherefore, Appellees ask the Court affirm the trial court’s summary

judgment.

                                     Respectfully submitted,

                                     By: /s/ Peter C. Smart
                                           Peter C. Smart
                                           State Bar No. 00784989
                                           Crain, Caton & James, P.C.
                                           1401 McKinney St., Suite 1700
                                           Houston, Texas 77010
                                           (713) 658-2323 (Telephone)
                                           (713) 658-1921 (Facsimile)
                                           psmart@craincaton.com
                                     Attorneys for Appellees, Deutsche Bank
                                     National Trust Company as Indenture
                                     Trustee for New Century Home Equity
                                     Loan Trust 2004-2 and Juanita Strickland




                                       10
                    CERTIFICATE OF COMPLIANCE
      Pursuant to TRAP 9.4(i)(3), the undersigned certifies that this document,
excluding those parts not counted pursuant to TRAP 9.4(i)(1), contains 1,996
words.



                                           /s/ Peter C. Smart
                                           Peter C. Smart




                                      11
                         CERTIFICATE OF SERVICE
       I certify that a true and correct copy of the foregoing has been served on the
following counsel of record through the electronic filing system and via regular
mail this 13th day of November 2015:


      David Rogers
      Law Offices of David Rogers
      1201 Spyglass, Suite 100
      Austin, Texas 78746


                                              /s/ Peter C. Smart
                                              Peter C. Smart




                                         12
