Opinion filed November 8, 2018




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-16-00331-CV
                                     __________

      SELISA HARKEY AND ADRIAN HARKEY, Appellants
                                        V.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
F/K/A THE BANK OF NEW YORK TRUST COMPANY, N.A., AS
    SUCCESSOR TO JPMORGAN CHASE BANK, N.A., AS
      TRUSTEE FOR RAMP 2004RS2, ET AL., Appellees


                    On Appeal from the 358th District Court
                             Ector County, Texas
                       Trial Court Cause No. D-134,928


                     MEMORANDUM OPINION
      Selisa Harkey and Adrian Harkey appeal the trial court’s order granting
summary judgment in favor of the Bank of New York Mellon Trust Company, N.A.,
f/k/a the Bank of New York Trust Company, N.A., as successor to JPMorgan Chase
Bank, N.A., as trustee for RAMP 2004RS2, (the Bank) and Mortgage Electronic
Registration Systems, Inc. (MERS). 1 Appellants challenge the trial court’s order in
one issue. We affirm.
                                         Background Facts
        Appellants obtained a loan from American Homefront Mortgage, Inc. in order
to finance the purchase of real estate in Odessa. Appellants executed an adjustable
rate note and deed of trust in favor of American Homefront. American Homefront
then assigned its interest in the note and deed of trust to Milestone Mortgage
Company. Milestone subsequently immediately assigned its interest to MERS.
Years later, MERS executed an appointment of substitute trustee and soon thereafter
assigned its interest in the note and deed of trust to the Bank. The Bank executed
another appointment of substitute trustee, appointing Lanelle Lynch and others as
trustees.
        Appellants subsequently defaulted on the loan. GMAC Mortgage, LLC, the
mortgage servicer for the loan at the time, sent Appellants a notice of default and
notice of acceleration. GMAC later sent Appellants multiple notices of substitute
trustee’s sale. Lanelle Lynch conducted the foreclosure sale, selling the property to
AHN Corporation.
        Appellants filed suit against Appellees, asserting claims for fraudulent lien,
wrongful foreclosure and eviction, violations of the Texas Fair Debt Collection Act,
and claims for certain injunctive and declaratory relief under the Texas Property
Code. As set out below, all of Appellants’ claims are predicated on a common
factual allegation—that Appellees lacked capacity to proceed with the foreclosure

        1
          We note that Appellants’ notice of appeal indicated that Appellants were also appealing the trial
court’s judgment dismissing Angel Nabarette and AHN Corporation as defendants. However, in their brief,
Appellants have not challenged the trial court’s judgment dismissing Nabarette and AHN Corporation as
parties. Furthermore, no brief has been filed on behalf of Nabarette and AHN Corporation. Accordingly,
the merits of the judgment with respect to Nabarette and AHN Corporation are not addressed in this appeal.
In this opinion, the Bank and MERS are referred to as Appellees.



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because the person that executed the first assignment of the lien lacked capacity to
do so. Appellees filed a traditional motion for summary judgment, asserting that
Appellants lacked standing to contest the validity of the various assignments and
appointments in Appellees’ chain of title because Appellants were not parties to the
assignments and appointments.
                                       Analysis
      In a single issue on appeal, Appellants assert that the trial court erred in
granting Appellees’ traditional motion for summary judgment.            We review a
summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862
(Tex. 2010). When the trial court’s order fails to specify the grounds for its summary
judgment, we will affirm if any of the theories are meritorious. Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
      A party moving for traditional summary judgment bears the burden of proving
that there is no genuine issue of material fact as to at least one essential element of
the cause of action being asserted and that it is entitled to judgment as a matter of
law. TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co., 508 S.W.3d 254,
257 (Tex. 2017). If the movant initially establishes a right to summary judgment on
the issues expressly presented in the motion, then the burden shifts to the nonmovant
to present to the trial court any issues or evidence that would preclude summary
judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–
79 (Tex. 1979). When reviewing a traditional motion for summary judgment, we
review the evidence in the light most favorable to the nonmovant, indulge every
reasonable inference in favor of the nonmovant, and resolve any doubts against the
motion. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).
      Appellants assert that summary judgment was improper as to each of their
causes of action because there was summary judgment evidence that “the person


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attempting to assign the first lien at issue lacked capacity for such acts” and that
“therefore, all persons attempting to execute further documents such as
appointments of trustees or notices of trustee’s sale lacked capacity.” Appellants
made the same allegations in their petition. In response, Appellees asserted in their
motion for summary judgment that Appellants’ claims fail because of Appellants’
“lack of standing to contest the validity of [the assignments and appointments] in the
first place.” Appellees supported their contention with a citation to a federal case
for the following proposition: “It is now well-established by this Court and others in
this Circuit that ‘borrowers do not have standing to challenge the assignments of
their mortgages because they are not parties to those assignments.’” Davis v. Bank
of Am., N.A., No. 3:11-CV-3276, 2012 WL 2679452, at *2 (N.D. Tex. July 6, 2012)
(quoting Metcalf v. Deutsche Bank Nat’l Trust Co., No. 3:11-CV-3014-D, 2012 WL
2399369, at *5 (N.D. Tex. June 26, 2012)).
      The First Court of Appeals recently addressed a similar contention in
Morlock, L.L.C. v. Bank of New York, 448 S.W.3d 514 (Tex. App.—Houston [1st
Dist.] 2014, pet. denied). The appellant in Morlock asserted that the mortgagee bank
had no authority to foreclose because a person who executed an assignment in the
bank’s chain of title did not have authority to do so. 448 S.W.3d at 515–16. The
mortgagee bank asserted that the appellant did not have standing to contest the
assignment on the grounds that the person executing it did not have authority to do
so because the appellant was not a party to the assignment. Id. at 516–17. Our sister
court agreed with the mortgagee bank by holding that a nonparty to the assignment
lacked standing to claim that it was executed by someone without authority to do so.
Id. at 517. The court noted that a successful challenge to the authority of the person
executing the assignment would make the assignment “merely voidable.” Id. The
court held: “A plaintiff who is not a party to an assignment lacks standing to


                                          4
challenge the assignment on grounds which render it merely voidable at the election
of one of the parties.” Id.
        Appellants make the same contention in this case. They assert that an
individual in Appellees’ chain of title lacked capacity to do so because he or she
“had no interest of record”/“lacked capacity for such acts of public record.”
Appellants base all of their causes of actions on this factual contention.
        We agree with the conclusion reached by our sister court in Morlock.
Appellants lack standing to challenge the capacity of the individual that executed an
assignment between creditors because Appellants were not parties to the challenged
assignment. Id. As noted by the court in Morlock, only a party to the assignment
has standing to make a contention that a person lacked capacity to execute it. Id. In
this regard, Appellants were not “the ones who are allegedly suffering harm” from
the alleged lack of capacity. Lance v. Robinson, 543 S.W.3d 723, 740 (Tex. 2018)2;
see Linegar v. DLA Piper LLP (US), 495 S.W.3d 276, 281 (Tex. 2016) (a plaintiff
has standing when it is “personally and concretely aggrieved”). Appellees’ summary
judgment evidence established as a matter of law that Appellants were not parties to
the assignments and appointments that Appellants are challenging. Appellants lack
standing as a matter of law to challenge these conveyances on the basis of capacity.
Morlock, 448 S.W.3d at 517, 520–21. Accordingly, the trial court did not err in
granting Appellees’ motion for summary judgment. We overrule Appellants’ sole
issue on appeal.



        2
          We note that, in Lance, the Texas Supreme Court cited Morlock for the proposition that “[a] third
party lacks standing to challenge this voidable defect in the assignment.” Lance, 543 S.W.3d 739 (quoting
Morlock, 448 S.W.3d at 517). The supreme court also quoted Lopez v. Morales, No. 04-09-00476-CV,
2010 WL 3332318, at *3 (Tex. App.—San Antonio, Aug. 25, 2010, no writ) (mem. op.), for the proposition
that “[a] suit to set aside a deed obtained by fraud can only be maintained by the defrauded party.” Lance,
543 S.W.3d 739.


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                                         This Court’s Ruling
        We affirm the order of the trial court.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE


November 8, 2018
Panel consists of: Bailey, C.J.;
Gray, C.J., 10th Court of Appeals 3;
and Wright, S.C.J.4
Willson, J., not participating.




        3
         Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
        4
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.



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