Opinion issued August 9, 2012




                                  In The

                           Court of Appeals
                                 For The

                       First District of Texas
                         ————————————
                           NO. 01-11-00045-CV
                         ———————————
   MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS
    NOMINEE FOR ENCORE CREDIT CORP. D/B/A ECC CREDIT
             CORPORATION OF TEXAS, Appellant
                                    V.
                 KHYBER HOLDINGS, L.L.C., Appellee



                 On Appeal from the 127th District Court
                          Harris County, Texas
                    Trial Court Case No. 2009-76642



                       MEMORANDUM OPINION

     Appellant Mortgage Electronic Systems, Inc. as nominee for Encore Credit

Corp. d/b/a ECC Credit Corporation of Texas (“MERS”) brings this restricted
appeal from a default judgment in favor of Khyber Holdings, L.L.C., which

declared void a deed of trust. MERS argues that error is apparent on the face of

the record. We reverse the judgment and remand the case for further proceedings.

                                   Background

      Khyber Holdings sued MERS to quiet title and declare void a deed of trust

allegedly held by MERS. The petition alleged that Khyber Holdings was the

owner of a certain tract of land located in Harris County. It further alleged that

“Mortgage Electronic Registration Systems, Inc. as nominee for ECC Credit Corp.

d/b/a Credit Corporation of Texas accepted and caused to be recorded one certain

Deed of Trust . . . purporting to create a lien for security purposes on Plaintiff’s

property.” The petition continued as follows:

             5.     Invalidity of Defendant’s Claim. The Deed of Trust
      under which Defendant is asserting an interest that interferes with
      Plaintiff’s title, although appearing valid on its face, is in fact
      unenforceable and of no force or effect. Plaintiff will show that
      Defendant or its successors or assigns does not have possession of the
      original Real Estate Lien note that is secured by a Deed of Trust. It is
      settled Texas law that unless an entity that claims to be a holder of the
      note is the original note holder, an assignee, transferee or successor-
      in-interest and has actual possession of the original note, then the
      underlying security is unenforceable.

      ....




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            7.     Request for relief.

            Plaintiffs [sic] request that Defendant be cited according to law
      to appear and answer and that Plaintiff have judgment as follows:

             (a) Declaring that the Deed of Trust is invalid and
      unenforceable, ordering that; they [sic] be removed from the title to
      the property made the subject of this litigation and quieting title in the
      Plaintiff.

             (b) Awarding the Plaintiff judgment against the Defendants
      for attorney’s fees and costs of suit, together with such other and
      further relief to which Plaintiff may be justly entitled.

The Texas Secretary of State certified that copies of the citation and original

petition were forwarded by certified mail to MERS’s Florida address and that a

return receipt bearing MERS’s stamp was received. However, MERS did not

answer the petition or otherwise appear.

      Almost six months after the deadline for filing MERS’s answer had passed,

Khyber Holdings filed a motion requesting a default judgment.            The motion

reiterated the allegation that MERS’s deed of trust, “although appearing valid on

its face, is in fact invalid and of no force or effect because Defendant or its

successors or assigns does not have possession of the original Real Estate Lien

note that is secured by a Deed of Trust.” The trial court signed without alteration

Khyber Holdings’s proposed default judgment that quieted title in Khyber

Holdings, declared the deed of trust “void and of no force or effect,” and removed



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the deed of trust from the property title. After the default judgment was signed,

MERS timely filed its notice of restricted appeal.

                                      Analysis

      On appeal, MERS contends that error is apparent on the face of the record

because the facts that were admitted by the default do not establish that the deed of

trust is invalid or unenforceable. Khyber Holdings’s petition alleged that the deed

of trust was unenforceable and of no force or effect, and it specifically alleged that

MERS or its successors or assigns did not have possession of the original note

secured by the deed of trust. MERS argues that Texas law permits a party not in

possession of a note to enforce that note in many circumstances, such as when the

note is lost, stolen, or destroyed, or when one acts as the common-law agent of

another who is in possession of the note. See TEX. BUS. & COM. CODE ANN.

§ 3.309 (West Supp. 2011) (providing conditions for enforcing non-possessed

negotiable instruments); Nelson v. Regions Mortg., Inc., 170 S.W.3d 858, 864

(Tex. App.—Dallas 2005, no pet.) (observing that “under certain circumstances,

common law principles of agency allow enforcement of a note by one not in

possession”). MERS also argues that the relief obtained by Khyber Holdings

precludes the true possessor of the note from enforcing the deed of trust and that

such relief was not supported by the petition.       In response, Khyber Holdings

appears to argue that upon the default judgment, its allegation that MERS does not

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have possession of the original note was admitted as true. At that point, according

to Khyber Holdings, the burden shifted to MERS to prove the requirements for

enforcing lost, destroyed, or stolen instruments, but MERS’s failure to appear

meant that it did not meet this burden.

      Generally, if the time by which a defendant is required to answer has passed

and the defendant has not filed an answer, the plaintiff may take judgment by

default. See TEX. R. CIV. P. 239. A defendant who did not participate in the

hearing that resulted in the adverse default judgment may file a notice of restricted

appeal within six months after the default judgment is signed. See TEX. R. APP.

P. 26.1(c) & 30.     A party challenging the default judgment can prevail in a

restricted appeal only if (1) it filed notice of the restricted appeal within six months

after the judgment was signed, (2) it was a party to the underlying lawsuit, (3) it

did not participate in the hearing that resulted in the judgment complained of and

did not timely file any postjudgment motions or requests for findings of fact and

conclusions of law, and (4) error is apparent on the face of the record. Ins. Co. of

Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (per curiam). The only matter at

issue in this restricted appeal is the fourth: whether error is apparent on the face of

the record. The face of the record consists of all the papers on file in the appeal,

including the statement of facts. Norman Commc’ns. v. Tex. Eastman Co., 955

S.W.2d 269, 270 (Tex. 1997) (per curiam).

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       “Once a default judgment is taken on an unliquidated claim, all allegations

of fact set forth in the petition are deemed admitted, except the amount of

damages.” Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). It

is error to render default judgment when (1) the petition or other pleading of the

non-defaulting party seeking relief does not attempt to state a cause of action that

is within the jurisdiction of the court, (2) the petition or pleading for affirmative

relief does not give fair notice to the defendant of the claim asserted, or (3) the

petition affirmatively discloses the invalidity of such claim. Stoner, 578 S.W.2d at

685.

       In its restricted appeal, MERS analyzes Khyber Holdings’s petition as one

which attempts to state a claim to quiet title. Any deed, contract, judgment, or

other instrument not void on its face that purports to convey an interest in or make

any charge upon the land of a true owner, the invalidity of which would require

proof, is a cloud upon the legal title of the owner. Hahn v. Love, 321 S.W.3d 517,

531 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). To prevail in a suit to

quiet title, the plaintiff must prove (1) his right, title, or ownership in real property,

(2) that the defendant has asserted a “cloud” on his property, meaning an

outstanding claim or encumbrance valid on its face that, if it were valid, would

affect or impair the property owner’s title, and (3) that the defendant’s claim or

encumbrance is invalid. See Gordon v. W. Houston Trees, Ltd., 352 S.W.3d 32, 42

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(Tex. App.—Houston [1st Dist.] 2011, no pet.); Hahn, 321 S.W.3d at 531. MERS

challenges the third element of a suit to quiet title: whether the facts admitted by

the default render the deed of trust invalid. See Gordon, 352 S.W.3d at 42.

      In response to MERS’s interpretation of Khyber Holdings’s petition as

stating a claim to quiet title, Khyber Holdings responds that it in fact brought a

trespass to try title action.    “A trespass to try title action is the method of

determining title to lands, tenements, or other real property.” TEX. PROP. CODE

ANN. § 22.001(a) (West 2000). To prevail in such an action, a plaintiff must

usually (1) prove a regular chain of conveyances from the sovereign, (2) establish

superior title out of a common source, (3) prove title by limitations, or (4) prove

title by prior possession coupled with proof that possession was not abandoned.

Martin v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004). The plaintiff must prevail

on the superiority of his own title, not on the weakness of the defendant’s title. Id.

      We review the factual allegations contained in Khyber Holdings’s pleadings

and the type of relief sought to determine the nature of its claim. See Newsom v.

Brod, 89 S.W.3d 732, 734 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Khyber

Holdings’s petition alleged that MERS was “asserting an interest” under the deed

of trust, and it sought a judgment declaring that the deed of trust “be removed from

the title to the property” and “quieting title in the Plaintiff.” Thus, we will treat the

petition as purporting to state a claim to quiet title rather than a trespass to try title

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action because Khyber Holdings did not allege that MERS was asserting title to the

property and its requested relief was the removal of an encumbrance on the

property title. See id.; Gordon, 352 S.W.3d at 42.

      In this case, Khyber Holdings’s petition alleged that the deed of trust is

“unenforceable and of no force or effect,” and it provided a specific basis for the

alleged unenforceability: “[MERS] or its successors or assigns does not have

possession of the original Real Estate lien note that is secured by a Deed of Trust.”

The question before this court is whether the deed of trust can be held invalid

because MERS, or its successors or assigns, does not have possession of the

original note.

      When a debt is memorialized by a note and a lien, the note and the lien

constitute two separate bundles of rights and obligations. See Stephens v. LPP

Mortgage, Ltd., 316 S.W.3d 742, 747 (Tex. App.—Austin 2010, pet. denied). In

Texas, deeds of trust are frequently used as security instruments in the nature of a

mortgage. Stephenson v. LeBoeuf, 16 S.W.3d 829, 836 (Tex. App.—Houston

[14th Dist.] 2000, pet. denied). The deed of trust confers on a deed trustee the

power to sell the property pledged in the deed, without judicial supervision, in

accordance with the terms of the deed. See TEX. PROP. CODE. ANN. § 51.0074

(West Supp. 2011); Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 768 (Tex.

1982); Bonilla v. Roberson, 918 S.W.2d 17, 21 (Tex. App.—Corpus Christi 1996,

                                         8
no writ). A deed trustee may be a different person or entity than the secured party

to whom the debt is owed. See Hammonds v. Holmes, 559 S.W.2d 345, 347 (Tex.

1977); compare TEX. PROP. CODE. ANN. § 51.0001(4) (West Supp. 2011) (defining

“mortgagee”), with TEX. PROP. CODE. ANN. § 51.0001(7), (8) (defining “substitute

trustee” and “trustee”).

      Khyber Holdings’s petition alleged that MERS was “asserting an interest”

under the deed of trust, but that the deed of trust was “in fact unenforceable and of

no force or effect” because “MERS or its successors or assigns does not have

possession of the original Real Estate Lien Note that is secured by a Deed of

Trust.” However, the note and the deed of trust are separate bundles of rights and

obligations, and the deed trustee, who has the power of sale, need not be the same

person or entity to whom the underlying debt is owed. See Hammonds, 559

S.W.2d at 347; Stephens, 315 S.W.3d at 747. Thus, the fact that a party “asserting

an interest” under the deed of trust does not possess the corresponding note does

not invalidate the deed of trust, which is enforceable according to its terms. See

TEX. PROP. CODE. ANN. § 51.0074; Houston First Am. Sav., 650 S.W.2d at 768;

Bonilla, 918 S.W.2d at 21. Since MERS’s non-possession of the note is the sole

basis on which Khyber Holdings alleged that the deed of trust was void and that

basis has no legal foundation, Khyber Holdings’s suit to quiet title fails with




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respect to an essential element. See Gordon, 352 S.W.3d at 42; Hahn, 321 S.W.3d

at 531.

      We hold that error is apparent on the face of the record because Khyber

Holdings’s petition affirmatively discloses the invalidity of its suit to quiet title.

See Stoner, 578 S.W.2d at 685. Accordingly, we sustain MERS’s second issue.

Because of our resolution of this issue, we need not address MERS’s first issue,

which argues that the petition is also defective for failure to allege the superiority

of Khyber Holdings’s title.

                                    Conclusion

      We reverse the judgment of the trial court and remand the case for further

proceedings.




                                              Michael Massengale
                                              Justice

Panel consists of Justices Jennings, Massengale, and Huddle.




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