                                                                                             ACCEPTED
                                                                                         03-15-00382-CV
                                                                                                 7042507
                                                                              THIRD COURT OF APPEALS
                                                                                         AUSTIN, TEXAS
                                                                                    9/22/2015 4:02:24 PM
                                                                                       JEFFREY D. KYLE
                                                                                                  CLERK
                               No. 03-15-00382-CV

                                                                  FILED IN
                                                           3rd COURT OF APPEALS
        IN THE THIRD COURT OF APPEALS OF                  TEXASAUSTIN, TEXAS
                                                           9/22/2015 4:02:24 PM
                                                             JEFFREY D. KYLE
                                                                   Clerk
                       STEVEN B. ARMBRUSTER
                              Appellant
                                  v.

        DEUSTCHE BANK NATIONAL TRUST COMPANY,
                        Appellee


                   Appeal from the 277th District Court
                       Williamson County, Texas


                           BRIEF OF APPELLANT


                                              David Rogers
                                              Texas Bar No. 24014089
                                              Law Office of David Rogers
                                              1201 Spyglass Suite 100
                                              Austin, TX 78746
                                              Telephone: (512) 923-1836
                                              Fax: (512) 201-4082

                                              ATTORNEY FOR APPELLANT




                  ORAL ARGUMENT NOT REQUESTED




Armbruster)v.)DBNTC,)Appellant’s)Brief)   )     )     )     )         !
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                               No. 03-13-00532-CV


        IN THE THIRD COURT OF APPEALS OF TEXAS


                       STEVEN B. ARMBRUSTER,
                              Appellant
                                  v.

        DEUSTCHE BANK NATIONAL TRUST COMPANY,
                        Appellee


                    Appeal from the 277th District Court
                       Williamson County, Texas


                          BRIEF OF APPELLANTS

                                              David Rogers
                                              Texas Bar No. 24014089
                                              Law Office of David Rogers
                                              1201 Spyglass Suite 100
                                              Austin, TX 78746
                                              Telephone: (512) 923-1836
                                              Fax: (512) 201-4082

                                              ATTORNEY FOR APPELLANT




                  ORAL ARGUMENT NOT REQUESTED




Armbruster)v.)DBNTC,)Appellant’s)Brief)   )     )     )     )         !
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                IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties, as well as the names and
addresses of all counsel:

PARTIES

Appellants/Plaintiffs:
DEUSTCHE BANK NATIONAL TRUST COMPANY
 Counsel:
Peter C. Smart
Texas Bar No. 00784989
Crain, Caton & James
Five Houston Center
1401 McKinney, Suite 1700
Houston, Texas 77010
Phone: (713) 658-2323
Fax: (713) 658-1921
psmart@craincaton.com

Appellees/Defendants:
Steven Armbruster
623 Greenlawn Blvd
Round Rock, Texas 78664

Counsel:
David Rogers
Texas Bar No. 24014089
Law Office of David Rogers
1201 Spyglass Suite 100
Austin, TX 78746
Phone: (512) 923-1836
Fax: (512) 201-4082




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                          TABLE OF CONTENTS
Identity of Parties and Counsel…………………………………………iii

Table of Contents……………………………………………………….iv

Index of Authorities…………………………………………………….v

Statement on Oral Argument……………………………………………1

Statement of the Case………………………………..………………….1

Issues Presented…………………………………………………………2

Summary of Argument………………………………………………….3

Argument…………………………………………………………….….3

Prayer…………………………………………………………………...9

Certificate of Service…………………………………………..……….9

Certificate of Compliance…………………………………………..…10




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                          INDEX OF AUTHORITIES

 TEXAS SUPREME COURT
Huckabee v. Time Warner Entm’t Co., 19 S.W.3d 413, 422 (Tex. 2000)……..5
State v. Ninety Thousand Two Hundred Thirty-Five Dollars & No Cents in U.S.
Currency ($90,235), 390 S.W.3d 289, 292 (Tex. 2013)………………………..5
Slaughter v. Qualls, 162 S.W. 2d 671, 675 (Tex. 1942)……………………….8
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)..3
Winters v. Slover, 251 S.W. 2d 726 (Tex. 1952)………………………………..8

 TEXAS COURTS OF APPEALS
Bever Props., L.L.C. v. Jerry Huffman Custom Builder, L.L.C., 355 S.W.3d 878,
888, (Tex. App. Dallas 2011)…………………………………..………………..4
Faine v. Wilson, 192 S.W. 2d 456, 458 (Tex. App. – Galveston 1946)………....8
Ford v. Emerich, 343 S.W.2d 527, 531 (Tex. App. – Hous. 1961, writ ref’d
n.r.e)……………………………………………………………………………..8
Henke v. First Southern Properties, Inc., 586 S.W. 2d 617, 620 (Tex. App. –
Waco 1979, writ ref’d n.r.e.)……………………………………………………8
Martin v. New Century Mortg. Co., 377 S.W.3d 79, 85 (Tex. App.—Houston
[1st] 2012). …………………………………………………….………………..3
Miresco Inv. Servs., Inc. v. Yatoo Enters. (USA), Inc., 2012 Tex. App. LEXIS
10520 (Tex. App. Houston 1st Dist. Dec. 20, 2012)……………………………3
Mott v. Red's Safe & Lock Servs., Inc., 249 S.W.3d 90, 98 (Tex. App.—Houston
[1st Dist.] 2007, no pet.)…………………………..…………………………..2-4
Murchison v. Freeman, 127 S.W. 2d 369, 372 (Tex. App. – El Paso 1939, writ
ref’d)……………………………………………………………………………..8
Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 722 (Tex. App.--Houston
[1st] 2003, no pet.)…………...………………………………………………….4
Sadler v. Tex. Farm Bureau Mut. Ins. Cos., 2013 Tex. App. LEXIS 11300, 5,
2013 WL 4736392 (Tex. App. San Antonio Sept. 4, 2013)…………………….4

 STATUTES
Texas Property Code §51.0001(3)……………………..…………………….6, 7
Texas Property Code §51.0001(4)………………..………………………….6, 7
Texas Property Code §51.002………………………..………..………………..7
Texas Property Code §51.0025……………………..…………………………..7




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TO THE HONORABLE THIRD DISTRICT COURT OF APPEALS:



         Appellant, Steven Armbruster, hereby pleads that the honorable Court

of Appeals reverse the summary judgment of the district court and order the

court below to continue the case to trial, and in support of this motion show

the Court:

                            Statement on Oral Argument

As this case is not legally complex, involving an area of the law

continuously developed since before statehood and subject to a variety of

interpretation and argument, and as the facts are straightforward, Appellees

do not request oral argument. In the even the Court finds that oral argument

would be helpful, Appellants request to participate in such argument.

                                Statement of the Case

1.1 Appellant is Steven Armbruster (hereinafter “Armbruster”).

1.2     Appellee is DEUSTCHE BANK NATIONAL TRUST COMPANY

(hereinafter “DBNTC”).

1.3      Carrington Mortgage Services (“Carrington”) caused the foreclosure

sale of Armbruster’s home, at which DBNTC was the high bidder,

“paying” by credit bid $105,000 for a house with a purchase money loan

in 2004 of $151,000, with a 2013 County Tax Appraisal of $167,975.


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 1.4 Armbruster alleges that the foreclosure was unlawful, and filed suit for

 Quiet Title, Declaratory Judgment as to Void Title, and violations of the

 Texas Civil Practice and Remedies Code Chapter 12.

 1.5 DBNTC filed a traditional and no-evidence summary judgment on all

 causes of action.

 1.6 The Court granted both traditional and no-evidence summary judgment,

 denying all relief sought, and containing a “Mother Hubbard” clause.

                                    Issues Presented

2.1.      The Court erred in granting no-evidence summary judgment where the

no-evidence summary judgment did not specify which elements of which

causes of action no evidence was lacking, but merely stated: “Defendants

incorporate paragraphs 1-3 7 herein. Defendants seek summary judgment

under Rule 166a(i) in addition to under traditional grounds as discussed

above.”

2.2.      The Court erred in granting summary judgment to DBNTC

where DBNTC presented undisputed evidence that Carrington

Mortgage Services, which foreclosed was NOT the “mortgagee” as

defined under Texas Property Code §51.0001(4), undisputed evidence

that Carrington was NOT holder of the Note entitled to enforce, and no

evidence that Carrington was the mortgage servicer as defined under

Texas Property Code §51.0001(3).
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                                                                Summary of Argument

3.1.          Failure to specify the elements for which proof in lacking in specific

causes of action is a pleading defect in the no evidence summary judgment that

precludes granting summary judgment. Mott v. Red's Safe & Lock Servs., Inc.,

249 S.W.3d 90, 98 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

3.2.          The evidence put forth by DBNTC is inadequate to conclusively

disprove the causes of action alleged by Armbruster.

                                                                     Argument

 4.1. Questions of law are reviewed by the appellate court de novo.1 When

 reviewing a decision of the trial court after a full bench trial, the Appellate

 Court must affirm if there is any set of facts or law presented to the Trial

 Court that could support the trial court’s ruling.2

 No evidence MSJ grant is plain error.

 4.2 “‘A no-evidence challenge that only generally challenges the sufficiency

 of the non-movant's case and fails to state specific elements is fundamentally

 defective and insufficient to support summary judgment as a matter of law.’

 Mott v. Red's Safe & Lock Servs., Inc., 249 S.W.3d 90, 98 (Tex. App.—
"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""
1
 Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)
2
 When findings of fact and conclusions of law are not properly requested
and none are filed by the trial court, "the judgment of the trial court must
be affirmed if it can be upheld on any legal theory that finds support in the
evidence."
Miresco Inv. Servs., Inc. v. Yatoo Enters. (USA), Inc., 2012 Tex. App. LEXIS
10520 (Tex. App. Houston 1st Dist. Dec. 20, 2012)
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 Houston [1st Dist.] 2007, no pet.).” Martin v. New Century Mortg. Co., 377

 S.W.3d 79, 85 (Tex. App.—Houston [1st] 2012). see also Roventini v. Ocular

 Sciences, Inc., 111 S.W.3d 719, 722 (Tex. App.--Houston [1st] 2003, no pet.)

 (noting that the "motion must specify which essential elements of the

 opponent's claim or defense lack supporting evidence").3

4.3.          The No-Evidence Motion in this case is precisely this kind of

fundamentally defective motion which will not support summary judgment as

a matter of law.

4.4.          “A proper no-evidence motion must state there is no evidence of one or

more elements of a claim or defense on which the nonmovant would have the

burden of proof at trial. Tex. R. Civ. P. 166a(i).” Sadler v. Tex. Farm Bureau

Mut. Ins. Cos., 2013 Tex. App. LEXIS 11300, 5, 2013 WL 4736392 (Tex.

App. San Antonio Sept. 4, 2013).

4.5.          The no-evidence motion does not state there is no evidence of one or

more elements of a claim or defense on which the nonmovant would have the

burden of proof at trial. The lower Court therefore erred in failing to deny the

no-evidence motion for summary judgment.




"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""
3
 Accord., Bever Props., L.L.C. v. Jerry Huffman Custom Builder, L.L.C., 355
S.W.3d 878, 888, 2011 Tex. App. LEXIS 9098, 19-20 (Tex. App. Dallas
2011); Sadler v. Tex. Farm Bureau Mut. Ins. Cos., 2013 Tex. App. LEXIS
11300, 4-5, 2013 WL 4736392 (Tex. App. San Antonio Sept. 4, 2013)
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Traditional Summary Judgment lacks sufficient evidence.

4.6.     An appellate court reviews “a grant of summary judgment de novo.

When the trial court does not specify the grounds for its ruling, a summary

judgment will be affirmed if any of the grounds advanced by the motion are

meritorious. A party moving for traditional summary judgment has the

burden to prove that there is no genuine issue of material fact and it is entitled

to judgment as a matter of law. The non-movant has no burden to respond to

or present evidence regarding the motion until the movant has carried its

burden to conclusively establish the cause of action or defense on which its

motion is based.” State v. Ninety Thousand Two Hundred Thirty-Five Dollars

& No Cents in U.S. Currency ($90,235), 390 S.W.3d 289, 292 (Tex. 2013).

(internal citations omitted.) Where there is doubt, the court accepts as true all

evidence favoring the non-movant, and indulges every reasonable inference in

favor of the non-movant. Huckabee v. Time Warner Entm’t Co., 19 S.W.3d

413, 422 (Tex. 2000).

4.7.     DBNTC has not met its burden.

4.8.     The evidence attached to the Motion for Summary Judgment

conclusively shows that the party that foreclosed did not have the power to do

so.

4.9.     The Court erred in granting summary judgment to DBNTC where

DBNTC presented undisputed evidence that Carrington Mortgage Services,

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which foreclosed was NOT the “mortgagee” as defined under Texas Property

Code §51.0001(4), undisputed evidence that Carrington was NOT holder of

the Note entitled to enforce, and no evidence that Carrington was the

mortgage servicer as defined under Texas Property Code §51.0001(3).

4.10. DBNTC’s exhibit #6 shows that the Note and Deed of Trust were

assigned to DBNTC by Carrington, acting on behalf of New Century

Mortgage Corporation, on December 9, 2008. After that time, only DBNTC

had the power to foreclose, unless it transferred the Note and Deed of Trust to

a third party or it designated a third party as mortgage servicer, as permitted

under Texas Property Code §51.0001(3).

4.11. There is no evidence attached to the MSJ that shows that either of those

events occurred.

4.12. To the contrary, there is a great deal of evidence attached that

Carrington acted as though the December 9, 2008 assignment never occurred,

and it continued to represent itself as agent of New Century or the New

Century Trust, with power over the Note and Deed of Trust. See Exhibit 7, 8,

9, 10, 11, 12, 13.4

"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""
4
 Exhibit 5, a limited Power of Attorney, purports to grant New Century as
Servicer over some unidentified assets of DBNTC related to the New Century
Home Equity Loan Trust 2004-2. The Armbruster loan is not identified in any
document attached to the MSJ or otherwise in evidence as being related to
such a trust, quite possibly because the Armbruster Note is not a Home Equity
Note. Exhibit 3, a bankruptcy court order related to New Century and
Carrington, also does not identify the Armbruster loan.
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4.13. There is no evidence attached to the MSJ that the terms of Texas

Property Code §51.0001(3) were fulfilled.

      (3) "Mortgage servicer" means the last person to whom a
      mortgagor has been instructed by the current mortgagee to send
      payments for the debt secured by a security instrument. A
      mortgagee may be the mortgage servicer.

4.14. No evidence was attached to the MSJ that showed that “the current

mortgagee,” DBNTC instructed the mortgagor, Armbruster, to pay Carrington.

4.15. Mortgagee can mean multiple things, according to 51.0001(4).

      (4) "Mortgagee" means:
      (A) the grantee, beneficiary, owner, or holder of a security
      instrument;
      (B) a book entry system; or
      (C) if the security interest has been assigned of record, the last
      person to whom the security interest has been assigned of
      record.

4.16. In this case, since “the security interest has been assigned of record,”,

“the last person to whom the security interest has been assigned of record,”

DBNTC, is the mortgagee.

4.17. Under Texas Property Code 51.0025, a “A mortgage servicer may

administer the foreclosure of property under Section 51.002 on behalf of a

mortgagee,” but in order to qualify as a mortgage servicer and administer such

a mortgage, Carrington would have to qualify under the definition in this

chapter. There is no evidence Carrington qualifies.




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4.18. A trustee’s power to sell property at foreclosure arises from the

language of the particular deed of trust. See, e.g., Winters v. Slover, 251 S.W.

2d 726 (Tex. 1952); Ford v. Emerich, 343 S.W.2d 527, 531 (Tex. App. –

Hous. 1961, writ ref’d n.r.e). A trustee has no power to sell the debtor’s

property except such as may be found in the deed of trust, and the powers

therein conferred must be strictly followed. Slaughter v. Qualls, 162 S.W. 2d

671, 675 (Tex. 1942); Faine v. Wilson, 192 S.W. 2d 456, 458 (Tex. App. –

Galveston 1946); Murchison v. Freeman, 127 S.W. 2d 369, 372 (Tex. App. –

El Paso 1939, writ ref’d) (the terms of a deed of trust are strictly construed).

If the trustee conducting a foreclosure sale has no power or authority to offer

the property for sale, or if there exists a defect or irregularity in the foreclosure

process that would render the foreclosure sale void, then the purchaser at

foreclosure cannot acquire title to the property. Henke v. First Southern

Properties, Inc., 586 S.W. 2d 617, 620 (Tex. App. – Waco 1979, writ ref’d

n.r.e.)

4.19. If title has not passed, then the superior right of title rests in the party

who possesses prior title – the mortgagor, in this case, the Armbrusters. This

Court must therefore reverse the lower Court and remand with appropriate

instruction.




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                                      Prayer
      Appellant Armbruster respectfully request that the Court reverse the
judgment of the District Court in all things and remand for further action
consistent with its opinion.


                                             RESPECTFULLY SUBMITTED,


                                               /s/ David Rogers
                                             DAVID ROGERS
                                             Law Office of David Rogers
                                             State Bar No. 24014089
                                             1201 Spyglass Drive, Suite 100
                                             Austin, TX 78746
                                             (512) 923-1836
                                             (512) 201-4082 (fax)
                                             DARogers@aol.com


                       CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the foregoing Motion
was served upon Counsel of record for Appellants via the Court’s online
filing system on this 17th day of September, 2015.


Peter C. Smart
Texas Bar No. 00784989
Crain, Caton & James
Five Houston Center
1401 McKinney, Suite 1700
Houston, Texas 77010
Phone: (713) 658-2323
Fax: (713) 658-1921
psmart@craincaton.com




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                                                /s/    David Rogers
                                              DAVID ROGERS
                                              Attorney for Appellees

                     CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i), I hereby certify that this
document contains 1822 words.


                                          __/s/__David Rogers___________
                                          David Rogers
                                          SBN 24014089
                                          Law Office of David Rogers
                                          1201 Spyglass Suite 100
                                          Austin, TX 78746
                                          (512) 923-1836
                                          (512) 201-4082 [Facsimile]




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    !
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Appendix!
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                                Stacey Mathews
                                   District Judge
                              277th Judicial District
                        405 Martin Luther King Blvd., Box 6
                            Georgetown, Texas 78626
                                 (512) 943-1277
                              FAX (512) 943-1276



         DATE:     May 22, 2015

        TO:        David Rogers
                   512-201-4082

         FROM:     Stacey Mathews, District Judge
                   277th District Court, Williamson County



         PAGE(S) INCLUDING COVER:_4 pages

         NOTE:
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                                              NO. 13-0631-C277

      STEVEN ARMBRUSTER                             §       DISTRICT COURT
                                                    §
                                                    §
      ~                                             §       WILLIAMSON COUNTY, TEXAS
                                                    §
      DEUTSCHE BANK NATIONAL                        §
      'TRUST COMPANY as Indenture                   §
      Trustee for New Century Home Equity           §
      Loan Trust 2004-2, and                        §
      JUANITA STRICKLAND                            §       277th JUDICIAL DISTRICT

                                                 JUDGMENT.

                On this day came on to be heard Defendants' Traditional and No-Evidence Motion for

      Summary Judgment. This lawsuit concerns residential real estate and improvements located at

      6211623 Greenlawn Boulevard, Round Rock, Texas 78664 and described as:

                       Lot 7, Block "Z," of Greenslopes at Lake Creek Section Nine, a
                       subdivision in Williamson County, Texas, according to the Map or
                       Plat thereof recorded in Cabinet F, Slide(s) 115, Plat Records of
                       Williamson County, Texas (the "Property").

                The Court reviewed the motion, any responsive plea that was filed, pertinent authorities

      and listened to arguments of counsel. The Court is of the opinion that the motion should be

      granted. It is therefore,

                ORDERED, ADJUDGED and DECREED that Defendants' Traditional and No-Evidence

      Motion for Summary Judgment is granted. It is further,

                ORDERED, ADJUDGED and DECREED that all relief sought by Plaintiff, Steven

      Armbruster, is denied. It is further,

                ORDERED, ADJUDGED and DECREED that Plaintiff, Steven Armbruster, take nothing

      from Defendants, Deutsche Bank National Trust Company a5 Indenture Trustee for New Century




      012851/000097
      131:. 8S1982vl
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      Home Equity Loan Trust 2004-2 and Juanita Strickland by way of this lawsuit and all relief

      sought by Plaintiff, Steven Armbruster is denied.

               This is a   finaf)~~~lainti:tr, Steven AtlllbtustCI, sind! pay all cmts of   esli];l. All

      relief not granted herein is denied.



               Signed this   ~~ay of May, 2015.




      0128511000097                                       2
      131- 851982vl
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      APPROVED AS TO FORlvf AND SUBSTANCE:


      CRAIN, CATON & JAMES

      By:       {s.LJ'eter C. Smart
             Peter C. Smart
             State Bar No. 00784989
             psmart@craincaton.com
             1401 McKinney, Suite 1700
             Five Houston Center
             Houston, Texas 77010
             713-658-2323
             713-658-1921 (fax)
      Attorneys for Defendants, Deutsche Bank
      National Trust Company as Indenture Trustee
      for New Century Home Equity Loan Trust
      2004-2 and Juanita Strickland




      01285!/0V0097                                 3
      lll '· 851982vl
