
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-08-00372-CV


Justin A. Washmon, Appellant

v.

Juanita A. Strickland, Substitute Trustee and Washington Mutual Bank, Appellees




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-05-004588, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		Appellees Washington Mutual Bank and Juanita A. Strickland foreclosed on
real property owned by appellant Justin A. Washmon after he defaulted on a note secured by the
property.  Washmon filed suit against appellees in district court to quiet title.  The district court
granted appellees' motion for summary judgment and entered a take nothing judgment in favor of
appellees on all of Washmon's claims.  Washmon appeals the district court's judgment based on the
fact that Washington Mutual has produced only a copy of the note, not the original.  We affirm the
judgment of the district court.
		On October 15, 2002, Washmon executed and delivered to Long Beach Mortgage
Company a "Fixed/Adjustable Rate Note" in the original principal amount of $113,200.  The note
was secured by a deed of trust pursuant to which Washmon granted Long Beach Mortgage Company
a first lien on real property in Austin, Texas.  The note and deed of trust provide that Long Beach
Mortgage Company could transfer the note, in which case the transferee--as the holder of the
note--would be entitled to receive payments under the note and a new entity might be assigned to
collect the monthly payments--the loan servicer.
		Effective November 23, 2005, Long Beach Mortgage Company transferred the note
and deed of trust to Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage
Loan Trust 2003-1 ("Deutsche Bank").  Washington Mutual was named as the loan servicer for
Deutsche Bank.
		In July 2005, Washmon ceased making payments on the note and, therefore, defaulted
under the terms of the note and deed of trust.  On August 3, 2005, Washmon received notice that he
was in default.  See Tex. Prop. Code Ann. § 51.002(d) (West Supp. 2009).  Washmon was also given
notice that, if he did not cure his default, the debt would be accelerated and Washington Mutual
would proceed with foreclosure.  On December 12, 2005, notice was served on Washmon that the
debt had been accelerated.  The notice also provided the place and time of non-judicial foreclosure
sale of the property in the event of Washmon's failure to pay the amount due.  See id. § 51.002(b).
		In anticipation of foreclosure, Deutsche Bank appointed Strickland as its substitute
trustee.  On January 3, 2006, Strickland conducted a trustee's sale and executed a substitute trustee's
deed at the time of sale.  See id. § 51.002(a).  The highest bidder for the property was Washington
Mutual, acting on behalf of Deutsche Bank bidding the amount of the debt.


		On December 30, 2005, Washmon filed suit in district court against appellees
Washington Mutual and Strickland, asserting a claim to quiet title to the real property sold at
the foreclosure sale.  Appellees filed motions for summary judgment.  The district court granted
appellees' motions for summary judgment and, on March 3, 2008, entered judgment that Washmon
take nothing on his claims.
		We review summary judgments de novo.  Joe v. Two Thirty Nine Joint Venture,
145 S.W.3d 150, 156 (Tex. 2004).  The standards for reviewing a summary judgment are well
established:  (1) the movant must demonstrate that there is no genuine issue of material fact and
that it is entitled to judgment as a matter of law; (2) in deciding whether a disputed issue of material
fact exists that would preclude summary judgment, we take all evidence favorable to the non-movant
as true; and (3) we indulge every reasonable inference and resolve any doubts in favor of the
non-movant.  See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).  In a suit
to quiet title, a plaintiff must establish superior title, proving and recovering on the strength of
his own title, not the weakness of the defendant's title.  See Fricks v. Hancock, 45 S.W.3d 322, 327
(Tex. App.--Corpus Christi 2001, no pet.).
		Washmon contends that appellees could not "begin and execute a foreclosure
procedure" because Washington Mutual did not have the original note and, therefore, could not
demonstrate that it had any interest in the property.  However, section 3.309 of the Texas Business
and Commerce Code provides that a person who is not in possession of an instrument is,
nonetheless, entitled to enforce the instrument if:

(1)	the person seeking to enforce the instrument . . . was entitled to enforce the
instrument when loss of possession occurred . . . ;

(2)	the loss of possession was not the result of a transfer by the person or a lawful
seizure; and

(3)	the person cannot reasonably obtain possession of the instrument because the
instrument was destroyed, its whereabouts cannot be determined, or it is in
the wrongful possession of an unknown person or a person that cannot be
found or is not amenable to service of process.
Tex. Bus. & Com. Code Ann. § 3.309(a) (West Supp. 2009).
		The summary judgment evidence includes a copy of the note, as well as an affidavit
by Marlene Petros, a Washington Mutual loan servicing department manager, averring that the copy
was a "true and correct copy of the Note."  The note identifies Long Beach Mortgage Company as
the "Lender" and identifies the "Note Holder" as the "Lender or anyone who takes this Note by
transfer and who is entitled to receive payment under this Note."  The summary judgment record also
includes an "Assignment of Deed of Trust," which provides that Long Beach Mortgage Company,
effective November 23, 2005:
hereby grants, conveys, assigns and transfers to Deutsche Bank National Trust
Company, as Trustee for Long Beach Mortgage Loan Trust 2003-1 c/o Washington
Mutual Bank . . . all beneficial interest under that certain DEED OF TRUST dated
October 15, 2002, executed by Justin A. Washmon . . . TOGETHER with note or
notes therein described or referred to, the money due and to become due thereon,
with interest, and all rights accrue to said DEED OF TRUST.


The record also includes the December 12, 2005 notice of foreclosure to Washmon, which provided
that Washington Mutual was acting as mortgage servicer for Deutsche Bank in accordance with a
servicing agreement.  See Tex. Prop. Code Ann. § 51.0025 (West 2007).  There is no evidence in the
record controverting any of these factual allegations or the authenticity of the documents.  Thus, the
evidence is sufficient as a matter of law to prove that Washington Mutual was entitled to enforce the
note when loss of possession occurred.  See id.; Tex. Bus. & Com. Code Ann. § 3.309(a)(1).
		Petros also averred the following in her affidavit:
I have made a diligent search of Washington Mutual's files and am unable to
locate the original Note.  Washington Mutual routinely keeps the original of notes
in its vaults.  The original Note was housed in Washington Mutual's vault in
Jacksonville, Florida.  I requested a search of Washington Mutual's vault in
Jacksonville, Florida, and the original of the Note was not in the vault.  The Note has
not been sold or transferred to another party since there is no documentation in the
file indicating such, and the account shows no record of the Note being paid. 
Therefore, Washington Mutual was in possession of the Note when the original Note
was lost or destroyed.
There is no evidence in the record controverting these factual allegations.  Thus, the evidence is
sufficient as a matter of law to prove both that Washington Mutual's loss of possession was not the
result of a transfer or a lawful seizure and that Washington Mutual cannot reasonably obtain
possession of the note because its whereabouts cannot be determined.  See Tex. Bus. & Com. Code
Ann. § 3.309(a)(2), (3).
		Appellees' summary judgment proof is sufficient as a matter of law to prove their
authority to enforce the note on behalf of Deutsche Bank.  See Zarges v. Bevan, 652 S.W.2d 368,
369 (Tex. 1983).  We affirm the judgment of the district court. (1)


						__________________________________________
						G. Alan Waldrop, Justice
Before Justices Patterson, Waldrop and Henson;
	Concurring Opinion by Justice Patterson
Affirmed
Filed:   February 26, 2010
1.   Washmon also contends that when the mortgage was "pooled" with other mortgages for
the issuance of securities backed by such pool of mortgages, his debt could no longer be collected
upon.  We are unaware of any authority that provides that the pooling of mortgages relieves the
borrowers' obligations under the notes.  The remainder of Washmon's arguments appear to rely on
his position that Washington Mutual could not enforce the note without producing the original.
