Affirmed and Memorandum Opinion filed July 9, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00246-CV

                           LINDA ALLAN, Appellant
                                         V.
                 NATIONSTAR MORTGAGE, LLC, Appellee

                    On Appeal from the 125th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2016-09047

                 MEMORANDUM                       OPINION

      In this foreclosure case, Linda Allan appeals the summary judgment rendered
in favor of appellee Nationstar Mortgage, LLC. In the two dispositive issues, she
contends that summary judgment was improper because (a) Nationstar failed to
conclusively establish that it was assigned the right to foreclose, and (b) Nationstar
failed to pursue claims against a necessary party. Because the evidence conclusively
established Nationstar’s right to foreclose and the necessary-party complaint was
waived, we affirm the trial court’s judgment.
                                   I. BACKGROUND

      In June 2008, lender Bristol Financial, Inc. made a home-equity loan of
$284,000 to Linda Allan. The Texas Home Equity Security Instrument identifies
Linda Allan as the borrower, and as required by the Texas Constitution, the security
instrument also was signed pro forma by her then-spouse Ziad A. Allan.1 See TEX.
CONST. art. XVI, § 50(6)(A) (requiring a home-equity loan to be “secured by a
voluntary lien on the homestead created under a written agreement with the consent
of each owner and each owner’s spouse”). The security instrument specifically
provides, “Lender may return any payment or partial payment if the payment or
partial payments are insufficient to bring the Extension of Credit current.”

      The security instrument identifies Mortgage Electronic Registration Systems,
Inc. (“MERS”) as the lender’s nominee and the beneficiary of the security
agreement. MERS then assigned the note and deed of trust to Flagstar Bank, and
Flagstar assigned them to appellee Nationstar.

      Linda defaulted on the loan but cured the default by entering into a “Home
Affordable Modification Agreement.” Under the terms of the Modification
Agreement, the interest rate on Linda’s loan was reduced and all late charges that
had accrued as of the effective date of the agreement were waived, but all other past-
due amounts were added to the principal. Linda also reaffirmed in the Modification
Agreement that all terms of the original note and security instrument remained in
effect except as modified.

      Linda again defaulted, and Nationstar accelerated the note and applied for an
expedited order of foreclosure. See TEX. R. CIV. P. 736.1. In response, Linda filed


      1
         Because they share the same last name, we refer to Linda and Ziad Allan by their
respective given names.

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this action. She alleged that the promissory note did not allow the lender to return
partial payments and capitalize overdue amounts, and she characterized the partial
payments that had been returned to her as further extensions of credit. She
additionally alleged that Nationstar’s attempt to foreclose was barred by limitations.
She asked the trial court to declare that she owes nothing, or alternatively, to declare
the amount of her indebtedness. She further sought declarations that Nationstar
violated Article XVI, section 50 of the Texas Constitution, and that Nationstar is
constitutionally barred from foreclosing on the property.

      In its counterclaim, Nationstar alleged that the Allans own the property and
that Linda defaulted on the note securing their home equity loan. Although
Nationstar made these allegations against Linda, as a counter-defendant, and against
Ziad Allan, as a third-party defendant, Ziad was never served; thus, he did not
become a party to this suit. Nationstar nevertheless filed a notice of nonsuit
dismissing its claims against Ziad.

      Nationstar successfully moved for summary judgment both on Linda’s claims
and on its own counter-claims. The trial court dismissed Linda’s claims with
prejudice and declared that (a) the security instrument is binding, (b) Nationstar has
a valid and binding security interest in the property, and (c) the property is subject
to foreclosure. The trial court also ordered that its judgment have the force and effect
of a writ of possession. Finally, the trial court rendered judgment against Linda for
$484,047.40, plus per diem interest, to be satisfied from the seizure and sale of the
home at a public auction.

      Linda moved for a new trial on the ground that Nationstar failed to pursue its
claims against Ziad despite its allegations that both Linda and Ziad own the home.
She additionally argued that Nationstar failed to produce competent summary-
judgment evidence that it is the assignee of the original lender, Bristol Financial.

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Nationstar responded, and the trial court allowed the motion to be overruled by
operation of law. Linda now appeals the judgment.

                          II. ISSUES AND STANDARD OF REVIEW

       Linda’s first two issues reurge the arguments from her motion for new trial,
namely, that Nationstar failed to establish that it received rights in the property
through an assignment from the original lender, and that Nationstar pleaded, but
failed to pursue, claims against Ziad Allan as a joint owner of the property.2 In her
third issue, Linda asserts that the trial court erred in considering evidence that
Nationstar attached to its motion for new trial, because evidence introduced after the
trial court granted summary judgment is irrelevant and cannot “relate back to make
the granting of summary judgment proper.”

       To prevail on a traditional motion for summary judgment, the movant must
show that there is no genuine issue of material fact and that it is entitled to judgment
as a matter of law. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,
215–16 (Tex. 2003). We review a summary judgment de novo, construing the
evidence in the light most favorable to the non-movant by crediting evidence
favorable to the non-movant if a reasonable juror could and disregarding contrary
evidence unless a reasonable juror could not. Mann Frankfort Stein & Lipp Advisors,
Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

                        III. NATIONSTAR’S RIGHT TO FORECLOSE

       Citing Bierwirth v. TIB-The Indep. BankersBank, No. 03-11-00336-CV, 2012
WL 3239121, at *4 (Tex. App.—Austin Aug. 10, 2012, no pet.) (mem. op.), Linda


       2
           We have reversed the order of the first two issues because Linda’s argument that
Nationstar failed to establish that it was assigned the right to foreclose implicates standing, which
is a jurisdictional complaint. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443
(Tex. 1993) (explaining that standing is implicit in subject-matter jurisdiction).

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asserts that Nationstar failed to establish its right to foreclose. It is an apt citation,
for Bierwirth is nearly on all fours with this case. There, as here, a bank filed a home-
equity foreclosure application. See id. at *1. There, as here, the homeowner
responded by suing for declaratory relief that the bank did not have the right to
foreclose, and the bank counterclaimed for an order authorizing foreclosure. See id.
Just as in this case, the bank in Bierwirth successfully moved for traditional summary
judgment on its foreclosure claim, and the homeowner argued on appeal that the
evidence failed to establish the right to foreclose. See id. at *4.

      But the most compelling similarity is the evidence. The homeowner in
Bierwirth signed the same standard contracts that Linda signed, those being the
Texas Home Equity Note and the Texas Home Equity Security Instrument. The
Bierwirth court held that copies of these contracts, together with a copy of their
assignment to the bank and the affidavit of the bank’s vice president attesting to the
default, to the amount owed, and to the delivery of all required notices, were
sufficient to conclusively establish the bank’s right to foreclose.

      Nationstar presented the same evidence in this case. Nationstar’s summary-
judgment evidence included authenticated copies of Linda’s signed Texas Home
Equity Note and Texas Home Equity Security Instrument, the assignments, and the
affidavit of Nationstar’s vice president.

      The security instrument states,

      The beneficiary of this Security Instrument is MERS (solely as nominee
      for Lender and Lender’s successors and assigns) and the successors and
      assigns of MERS. . . . . Borrower understands and agrees that MERS
      holds only legal title to the interests granted by Borrower in this
      Security Instrument, but, if necessary to comply with law or custom,
      MERS (as nominee for Lender and Lender’s successors and assigns)
      has the right; to exercise any or all of those interests, including, but not


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      limited to, the right to foreclose and sell the Property; and to take any
      action required of Lender . . . .
Chapter 51 of the Texas Property Code defines a “mortgagee” who is authorized to
foreclose to include “the grantee, beneficiary, owner, or holder of a security
instrument.” TEX. PROP. CODE ANN. § 51.0001(4); Bierwirth v. BAC Home Loans
Servicing, LP, No. 03-12-00583-CV, 2014 WL 712520, at *3 (Tex. App.—Austin
Feb. 20, 2014, no pet.). Thus, MERS had the right to foreclose. MERS then assigned
the note and deed of trust to Flagstar Bank, F.S.B., on September 3, 2009. A few
weeks later, Flagstar assigned them Nationstar, thereby giving Nationstar the right
to foreclose.

      Linda contends that this evidence is insufficient because the assignment from
MERS to Flagstar identifies MERS “as nominee for Lender and Lender’s successors
and assigns” and does not name the Lender. Linda does not explain why she believes
it necessary to name the Lender, given that MERS was authorized to act, and did act,
not only for the Lender, but also for any of the Lender’s “successors and assigns.”
Moreover, the assignment also points out that the security instrument is filed in the
office of the Harris County Clerk, File No. 20080316167, and Nationstar’s evidence
includes an authenticated copy of the security instrument, which is stamped with that
file number and which identifies the lender as Bristol Financial.

      We conclude that Nationstar conclusively established that it received by
assignment the right to foreclose on the property, and we overrule this issue.

                  IV. LINDA’S NECESSARY-PARTY COMPLAINT

      Linda next contends that the trial court erred in granting Nationstar summary
judgment because Nationstar failed to pursue claims against Ziad Allan, whom
Linda characterizes as a necessary party. We conclude that this complaint has been
waived.

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      A party must object to the failure to join a necessary party by a pleading
verified by affidavit. See TEX. R. CIV. P. 93(4) (“unless the truth of such matters
appear of record,” a pleading setting up a “defect of parties” “shall be verified by
affidavit”); CHCA E. Hous., L.P. v. Henderson, 99 S.W.3d 630, 633 (Tex. App.—
Houston [14th Dist.] 2003, no pet.) (“Generally, a ‘defect of parties’ refers to joinder
problems involving necessary or indispensable parties.” (citing Allison v. Nat’l
Union Fire Ins. Co. of Pittsburgh, Pa., 703 S.W.2d 637, 638 (Tex. 1986) (per
curiam))). Linda raised this complaint in her motion for new trial after the trial court
granted summary judgment. Thus, the complaint is both untimely and unverified,
and it accordingly is waived. See, e.g., Taylor v. Shelton, 772 S.W.2d 281, 286 (Tex.
App.—Amarillo 1989, writ denied) (appellant’s complaint that trial court rendered
judgment in the absence of necessary and indispensable parties was waived where
“they did not raise the issue until after the court heard and orally announced the
granting of the motion for summary judgment”).

      We overrule this issue. It accordingly is unnecessary to address Linda’s third
issue, in which she argues that the trial court erroneously considered the evidence of
Linda and Ziad Allan’s divorce, which Nationstar attached to and incorporated in its
response to Linda’s motion for new trial.

                                  V. CONCLUSION

      Having overruled the dispositive issues in this appeal, we affirm the trial
court’s judgment.


                                        /s/       Tracy Christopher
                                                  Justice


Panel consists of Justices Christopher, Bourliot, and Zimmerer.


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