Texas 2nd Appellate District Court affirms in part and Denies in part – pertaining to Writ Of Possession in Foreclosure
Concerning the traditional summary judgment from BNYM’s counterclaims, the De La Garzas said there is still conflicting evidence in this matter. They allege BNYM wasn’t authorized to foreclose on the home because the documents from BNYM’s rule 736 application and motion for summary judgment don’t prove the promissory note was assigned or transferred to the bank. BNYM argued a party can still foreclose even if it doesn’t serve as the note holder.
“Although a nonjudicially foreclosing mortgagee need not demonstrate ownership of a note in order to defeat a mortgagor’s standing challenge and although BNYM may have established that it is the mortgage under chapter 51 for purposes of a nonjudicial foreclosure, this does not necessarily entitle BNYM to a rule 309 judgment for a judicial foreclosure.” Sudderth wrote.
Since BNYM requested a rule 309 judgment for judicial foreclosure instead of an order for a nonjudicial foreclosure and trustee’s sale via chapter 51 of the property regulation, the rules of chapter 51 that oversee nonjudicial foreclosures are irrelevant. Therefore, BNYM didn’t properly prove its argument, so the court agreed with the De La Garzas on this issue.
The court also subsequently determined the lower court erred when it OK’d BNYM’s ask for a judgment of writ of possession.