                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-12-00455-CV


                            IN RE: A PURPORTED LIEN OR CLAIM

                                       MILISSA KAY BISHOP

                            On Appeal from the 353rd District Court
                                     Travis County, Texas
               Trial Court No. D-1-GN-12-00639, Honorable Jon Wisser, Presiding

                                         December 4, 2013

                                 MEMORANDUM OPINION
                      Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


        Before us is a restricted appeal by Wells Fargo Bank, N.A. (Wells Fargo). 1 The

latter, through the appeal, attacks a Judicial Finding of Fact and Conclusion Regarding

a Documentation or Instrument Purporting to Create a Lien or Claim.                             The two

documents or instruments encompassed by the Judicial Finding and purporting to

create a lien or claim are an “Appointment of Substitute Trustee” and a “Notice of

Substitute Trustee Sale.” The trial court found, through the procedures established by


        1
           The Federal National Mortgage Association acknowledged, through its counsel of record and
via its reply brief, that it lacked standing to prosecute the appeal. Thus, we dismiss it as a party to the
appeal.
§51.903 of the Texas Government Code, that the two items 1) did not create valid liens

or claims, 2) were not provided for by State or Federal statute or constitutional

provision, 3) were not created via the consent of the debtor, obligor, or owner of the

property allegedly encumbered or the representative of any of those individuals, 4) were

not equitable, constructive or other type of lien imposed by a court of competent

jurisdiction and recognized under State or Federal law, and 5) were “NOT properly

asserted against real or personal property” or an interest therein. These findings were

made in response to a motion filed by Milissa Kay Bishop, through her attorney.

According to Wells Fargo, those findings were improperly made. We reverse.

      Preliminary Matters

      1.     Reference to Purported Evidence Missing from the Record

      In reviewing the appeal, we restrict our consideration to the evidence

encompassed within the appellate record. Warriner v. Warriner, 394 S.W.3d 240, 254

(Tex. App.—El Paso 2012, no pet.). Evidentiary material to which the parties refer (as

they do here at times) and which is omitted from that record (as it is here at times)

cannot be considered for purposes of determining whether the trial court erred. In re

Guardianship of Winn, 372 S.W.3d 291, 297 (Tex. App.—Dallas 2012, no pet.). And, it

matters not whether the litigants attached the information to their briefs or in an

appendix accompanying their briefs. Id.

      2.     Jurisdiction

      Ms. Bishop questions our jurisdiction to entertain the appeal by arguing that

Wells Fargo lacked standing to appeal from the findings. We disagree.




                                           2
        The general test for standing is whether a controversy exists between the parties

that will be actually determined by the judicial declaration sought.                    Montenegro v.

Ocwen Loan Servicing, LLC, No. 07-12-00297-CV, 2013 Tex. App. Lexis 14092, at *8

(Tex. App.—Amarillo November 18, 2013, no pet. h.). With this in mind, we see that the

“Appointment of Substitute Trustee” was executed by Wells Fargo and identified Bishop

as the grantor of a deed of trust and Wells Fargo as the mortgagee and mortgage

servicer of that debt.        Through it, Wells Fargo appointed Tobey Latham, Wendy

Alexander, or Steve Utley as said substitute trustee and instructed them to “conduct and

direct the execution of remedies” provided for in Bishop’s deed of trust. The “Notice of

Substitute Trustee Sale” also identified Wells Fargo as the “mortgagee” and “mortgage

servicer” of the very same Bishop mortgage. It also disclosed that Tobey Latham both

executed the document and scheduled a foreclosure of the Bishop mortgage wherein

Wells Fargo is the mortgagee.

        So, what we have before us is a dispute involving the validity of documents

executed by Wells Fargo and its representatives. The documents pertain to a deed of

trust created by Bishop and under which Wells Fargo is the beneficiary. 2 With those

documents, Wells Fargo was preparing to enforce a contractual right to foreclosure

purportedly granted it by Bishop in that deed of trust. And, in attempting to have the

documents declared invalid, Bishop sought to prevent Wells Fargo from exercising its

contractual right to foreclose, or at least one could reasonably deduce. From these

circumstances, we cannot but conclude that there exists a real controversy between

Bishop and Wells Fargo that will be determined by the judicial declaration sought.

        2
         No one disputed below the status of Wells Fargo as mortgagee or mortgage servicer of the
Bishop mortgage. Nor is the legitimacy of that claim subject to dispute via the statutory procedure at bar.
See TEX. GOV’T CODE ANN. § 51.903 (West 2013).

                                                    3
         And that Bishop considers Latham, Utley, and Alexander the actual parties to the

litigation because they were named substitute trustees by Wells Fargo is nonsensical

given Bishop’s acknowledgement that they were and are the agents of Wells Fargo. An

agent acts on behalf of his principal. See Reid Road Mun. Utility Dist. No. 2 v. Speedy

Stop Food Stores, Ltd, 337 S.W.3d 846, 853 (Tex. 2011). So the entity with the actual

dog in this hunt is not the three named substitute trustees but their principal, Wells

Fargo.

         Accuracy of the Findings of the Trial Court

         Pursuant to § 51.903 of the Government Code:

                  A person who is the purported debtor or obligor or who owns
         real . . . property or an interest in real . . . property and who has reason to
         believe that the document purporting to create a lien or a claim against
         the real . . . property or an interest in the real . . . property previously filed
         . . . is fraudulent may complete and file with the district clerk a motion,
         verified by affidavit . . . that contains, at a minimum, the information in the
         following suggested form . . . .

TEX. GOVT. CODE ANN. § 51.903(a) (West 2013). Furthermore, a district judge may rule

upon the motion ex parte after reviewing only the documentation or instrument attached

to the motion, without testimonial evidence, and without notice of any kind.                      Id. §

51.903(c). And, that is how the trial court ruled at bar, ex parte and after reviewing only

the motion, its conclusory factual allusions about the documents being fraudulent, and

the documents themselves.3

         Next, the document being attacked is presumed fraudulent if it purports to create

a lien or assert a claim against real property or an interest in real property and 1) the

document is not provided for by specific state or federal statutes or constitutional


         3
         We note that unsubstantiated factual conclusions appearing in an affidavit are not competent
evidence. See Tex. Division – Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994).

                                                   4
provisions, 2) is not created by implied or express consent or agreement of the obligor,

debtor, or owner of the real property, or 3) is not an equitable, constructive, or other lien

imposed by a court of competent jurisdiction. Id. §51.901(c)(2) (West 2013). The trial

court made such findings with respect to these two documents, and, in doing so, erred.

        Assuming arguendo that documents manifesting an appointment of substitute

trustee and notice of a substitute trustee’s sale purport to create a lien or assert a claim

in property, we note that statute enables a mortgagee or mortgage servicer, such as

Wells Fargo here, to appoint substitute trustees. See TEX. PROP. CODE ANN. § 51.0075

(c) (West Supp. 2013) (stating that a mortgagee may appoint or may authorize a

mortgage servicer to appoint a substitute trustee and may make the appointment or

authorization by power of attorney, corporate resolution, or other written instrument).

So too does statute require notice of the trustee’s intended sale. Id. § 51.002(b).

Therefore, both of these documents at issue are provided for by Texas law. So, they

cannot be considered presumptively fraudulent under § 51.901(c)(2).

        Accordingly, we reverse the findings and conclusions executed by the trial court,

order them to be a nullity, and deny the Motion for Judicial Review of Documents or

Instruments Purporting to Create a Lien or Claim.4



                                                                        Brian Quinn
                                                                        Chief Justice




        4
         We may reverse a trial court’s judgment and render the judgment that the trial court should have
rendered. TEX. R. APP. P. 43.2(c).


                                                    5
