Bankers

Yellowfin’s Debt Collection Fraud: Chasing Unsecured Loans in Texas from Financial Crisis-Era Loans

Breaking Precedent: Texas First Court of Appeals Backs Yellowfin Judgments Amidst Contentious and Jaw-dropping Legal Reasoning.

LIT Commentary

Unconventional Legal Twists: The Persistence of Decade-Old Debts and the Yellowfin Controversy

In a legal saga that challenges conventional wisdom and raises eyebrows across the financial and legal sectors, Florida based debt buyer Yellowfin Loan Servicing Corporation has managed to keep the flames of controversy burning bright.

Its unrelenting pursuit of unsecured second loans dating back to the financial crisis era has not only left lawyers scratching their heads but has also piqued curiosity about the intricacies of debt collection, statute of limitations, and the evolving interpretation of secured debts.

The recent decision by the Texas First Court of Appeals to uphold Yellowfin judgments, despite questionable arguments presented, has ignited a heated debate about the tenacity of debts, the flexibility of legal precedent, and the ethical implications of reopening financial wounds that are over a decade old.

This unforeseen turn of events has not only spotlighted the unorthodox strategies employed by debt collectors but has also prompted experts to ponder a fundamental question: how can a debt that was once secured by property retain its enforceability, and how can a debt buyer rekindle the flames of a long-extinguished financial transaction, especially considering the defunct bank in question, Indymac, and their admitted predatory lending practices?

This article delves into the perplexing world of debt collection, legal precedent, and the intricacies of financial obligations that seem to defy the passage of time. We explore the Yellowfin controversy, dissect the arguments that have allowed a second lien on properties sold years ago to persist, and question the viability of pursuing such debts after more than a decade, particularly in the shadow of statute of limitations constraints.

As legal boundaries shift and financial norms evolve, questions arise about both the application of Texas laws along with the disputable ethics of the judiciary in Texas, making it imperative to unravel the complex layers of this situation and understand what it means for both the debt collection landscape and the broader realm of economic jurisprudence.

Motion for rehearing filed

Thompson v. Yellowfin Loan Servicing Corp., No. 01-21-00147-CV (Tex. App. Jan. 3, 2023)

APR 20, 2023 | REPUBLISHED BY LIT: AUG 29, 2023
AUG 29, 2023

Above is the date LIT Last updated this article.

In this argument presented to the 1st District Court of Appeals, Appellant LaTanya Thompson is requesting a rehearing of the Court’s January 3, 2023, Memorandum Opinion and Judgment regarding a legal dispute involving Yellowfin Loan Servicing Corp.

The argument can be summarized as follows:

Background and Synopsis

The Memorandum Opinion being contested relies heavily on a case involving Yellowfin, which is currently under review by the Supreme Court.

The Opinion contradicts itself on an issue and fails to follow the Texas Rules of Appellate Procedure and binding precedent.

The analysis ignores key record details and grants summary judgment while a material fact issue remains unresolved.

Argument

The Opinion heavily references Santos v. Yellowfin Loan Servicing Corp., a case currently before the Supreme Court, and claims that Yellowfin has filed nearly identical cases throughout the state.

Thompson argues that the Opinion is inconsistent, citing the failure to apply specific appellate rules and precedents.

Thompson claims that the Opinion erroneously dismissed her issues related to limitations and waiver based on an incorrect interpretation of facts and rules.

Thompson contends that the linkage between two loans in her case was not appropriately considered and accuses the Opinion of ignoring relevant contractual terms and precedents.

Thompson argues that the Opinion failed to address waiver, policy considerations, and issues with the summary judgment standard.

Conclusion and Prayer

Thompson requests a withdrawal of the Memorandum Opinion and Judgment, reversal and remand of the case for further proceedings, and any other appropriate legal relief.

Overall, the argument highlights inconsistencies, failure to follow rules and precedent, and erroneous conclusions in the Court’s previous Opinion, aiming to persuade the Court to reconsider its decision.

TO THE HONORABLE 1ST DISTRICT COURT OF APPEALS:

Appellant LaTanya Thompson seeks a rehearing of the Court’s January 3, 2023, Memorandum Opinion and Judgment and that they be withdrawn and revised to comply with the Texas Rules of Appellate Procedure and follow binding precedent.

SYNOPSIS

The case that the Memorandum Opinion heavily relies on is currently being reviewed by the Supreme Court for issues raised here. It is one of roughly 270 almost identical cases that Yellowfin filed throughout the state.

The Memorandum Opinion is in conflict with itself, coming down on both sides of one issue.

It fails to apply Tex. R. App. P. 38.1(f) and (g). It fails to follow binding precedent.

Its incomplete analysis ignores the vital matter of record that both parties rely on.

It granted summary judgment while an issue of material fact was still unresolved.

ARGUMENT

The January 3, 2023, Opinion here relied heavily on Santos v. Yellowfin Loan Servicing Corp., No. 14-21-00151-CV, 2022 WL2678846 (Tex. App. Houston – [14th Dist.] July 12, 2022, pet. filed)(mem. op.), referring to it eleven times in its twenty two pages.

Ms. Santos filed a Petition For Review in that case and the Supreme Court THOMPSON V. YELLOWFIN – Appellant’s Motion For Rehearing asked Yellowfin to file a Response. Deysi R. Santos v. Yellowfin Loan Servicing Corp, as a Successor in Interest to First Franklin, No. 22-0910. They did and her
Reply was filed on April 11, 2023.

There are roughly some 270 virtually identical cases that debt buyer Yellowfin filed in Texas in which they sued borrowers on junior loans more than a decade after the senior loan was foreclosed. There are more in other states. Yellowfin never loaned those borrowers any money; it is typically the fourth or fifth entity to claim ownership of the notes is sues on.

Another one of those cases, Smith v. Yellowfin, No. 05-21-0306-CV was originally filed here, but it was reassigned to the Fifth Court for docket equalization.

The March 22, 2023 opinion there mentioned Santos twenty-three times and the Opinion in this case thirty-five times.

As there are identical issues in all of Yellowfin’s cases, including waiver, and limitations for suing on a deficiency on an unsecured debt, the Court should at delay its final ruling until after a ruling by the Supreme Court.

I. Limitations and Issues 1, 2, 3, and 5

Page 17 in the Opinion said that “Thompson did not raise a fact issue regarding her affirmative defense that Yellowfin’s claim accrued outside the applicable
limitations period.”

It relied on that alleged deficiency to dismiss Mr. Thompson’s issues 1, 2, 3, and 5, related to limitations.

There was no technical deficiency.

The statement is incorrect because it is at odds with the record and the contents of Ms. Thompson’s Brief and because it failed to apply Tex. R. App. P. 38.1(g).

The Statement of Facts in Appellant’s Brief begins “Ms. Thompson purchased her homestead on May 20, 2005. She financed it through IndyMac Bank, F.S.B., the only lender, with two simultaneous loans in what is commonly referred to as an 80/20 transaction. They were each secured by their own Deed of Trust. CR.289 and 169 respectively.”

Brief at 3.

The second paragraph on Page 4 in the Statement of Facts said “The amount paid at the foreclosure was not enough to pay off both the First Loan and the Note. IndyMac had the right to sue for any secured amounts it was owed on the First Loan and on the Note after the foreclosure but it did not. Neither did any other entity until Yellowfin filed the Plaintiff’s Original Petition on June 19, 2020, suing on the Note almost thirteen years after the foreclosure. CR.10.”

The last paragraph in the Statement of Facts, on Page 8, said “There was no litigation to try to collect on the Note in the almost thirteen years between the July 3, 2007, foreclosure [CR.273] and June 19, 2020, when Yellowfin filed its petition. CR.10.”

These facts, supported by references to the record, were not contradicted by Yellowfin and have to be accepted as true in the Court’s analysis.

“In a civil case, the court will accept as true the facts stated unless another party contradicts them. The statement must be supported by record references.”

Tex. R. App. P. 38.1(g).

This very panel cited and relied on that precise rule in footnote 3 in Department of Public Safety v. Ford, No. 01-22-00101-CV, December 29, 2022. It was equally applicable here, just five days later, on January 3, 2023, when the Opinion was released, yet it was ignored to Ms. Thompson’s detriment.

A month later, after it had disappeared for Ms. Thompson, the rule then reappeared in Whitehurst v. Thomas,

No. 01-21-00309-CV (Tex. App. – Houston [1st Dist.] February 7, 2023).

“Whitehurst did not dispute these facts. See TEX. R. APP. P. 38.1(g)

(“In a civil case, the court will accept as true the facts stated unless another party contradicts them.”).” Id.

One of the justices there was also on the panel here and in Ford.

The Opinion creates conflicting rulings on the same rule of appellate procedure, showing that it is apparently only applied in even-numbered months such
as December and February, but not in odd-numbered months such as January.

That failure to maintain consistency among the Court’s opinions is grounds for en banc reconsideration.

Tex. R. App. P. 41.2(c).

The failure to recognize what was set out in the Statement of Facts, and confirmed by Yellowfin’s Statement of Facts and argument, and to apply the required
rule, undermined the foundation for the Opinion’s claiming the fact issue was not presented.

Clearly that fact issue was raised. The Court should therefore reconsider its ruling on limitations in Issues 1, 2, 3, and 5.

Failing to apply the rule five days after applying it in Ford, and then applying it a month later in Whitehurst, was a denial of due process, a denial of equal
protection, and an abuse of discretion.

It was also contrary to binding precedent.

“We have admonished appellate courts to “reach the merits of an appeal whenever reasonably possible” and cautioned that “disposing of appeals for harmless procedural defects is disfavored.”

Perry, 272 S.W.3d at 587.

The interests of justice and fair play demand that cases be decided on the merits when technical deficiencies in appellate briefs “can be easily corrected.”

Silk v. Terrill, 898 S.W.2d 764, 766 (Tex. 1995).

When a case ripe for decision is resolved based on a procedural technicality, “[j]udicial economy is not served.”

Horton v. Stovall, 591 S.W.3d 567, 570 (Tex. 2019).

There is no lesser standard allowing the Court to disregard compliance with the applicable rule when there has been no technical deficiency.

A. Mandarino Is Inapplicable

The Opinion’s reliance on Mandarino v. Sherwood Lane Investments, LLC, No. 01-15-00192-CV, 2016 WL 4034568 (Tex. App. – Houston [1st Dist.] July 26, 2016, no pet.) (mem. op.) for determining limitations is misplaced. Opinion at 14-17.

That case is not relevant.

It relies on an advisory opinion and is clearly and easily distinguishable. Thompson’s Reply Brief, 10-12.

It did not involve two loans that were made by the same lender at the same time as part of the same transaction and contractually linked to each other as set out below.

This is one of the issues currently before the Supreme Court. Petition at 15.

The argument there is incorporated by reference in addition to what is in Pages 12-15 of Ms. Thompson’s Reply Brief.

B. There Was Only One Original Transaction

Page 15 in the Opinion incorrectly says “that IndyMac was the original lender for both the First Loan and the Second Loan does not change the outcome – they were separate transactions that created separate obligations.” That ignored the contractual linkage between the two notes in the 80/20 transaction that the parties have proven existed.

It ignored the facts that had to be taken as true in the Statement of Facts as set out above. It ignored the section in Appellant’s Reply Brief [9-10] entitled

“A. There was Only One Transaction Between Indymac and Ms. Thompson ,” which is repeated here:

“The First Loan and the Note [CR.14-15] were both loans from IndyMac to Ms. Thompson that she signed on May 20, 2005 as part of the same transaction to finance the acquisition of her homestead. Each was also secured by a Deed of Trust she signed in favor of IndyMac, CR.289 for the First Loan and CR.169 for the Note.

There was only one lender and only one borrower and only one house. One transaction. “There is no evidence to support the contention in Section I.C. on Page 11 in Yellowfin’s Brief that mistakenly says “[t]he first lien note and deed of trust constitute a separate legal obligation from the Note.”

As repeatedly shown above, the two notes were linked by “21. SENIOR LIENS” [CR.188-189] in the Deed of Trust and the various other documents in the loan agreement.

“Ms. Thompson could not have purchased the property with just one of the two loans. They are part of the same transaction and have to
be read together.”

It further completely ignored the clear linkage between the two loans, drafted and required by the original lender, that was relied on in Yellowfin’s Brief. Page 15 in that document cited the very same Paragraph 21.

Senior Liens from the Deed of Trust for the Note in its attempt to say the right generated by the linkage between the two loans was only an option.

“Paragraph 21 contains an optional acceleration clause and does not mandate that the loan is automatically accelerated.”

That was an undeniable admission that the two loans were linked in the single transaction. In and of itself that admission undermined the application of Mandarino.

Just above that cite, Yellowfin’s Brief quoted Paragraph 21 in its entirety. “21.

Senior Liens. Borrower shall perform all of Borrower’s obligations under any deed of trust, security instrument or other security agreement, which has priority over this Security Instrument, including Borrower’s convenants to make payment when due.

Borrower agrees that should default be made in the payment of any note secured by an [sic] prior valid encumbrance against the Property, or in any of the covenants of any prior deed of trust or other security agreement, then the Note secured by this Security Instrument, at the option of Lender, shall at once become due and payable. CR: 188-190 (emphasis added).”

Yellowfin Brief at 15.

Despite having that undeniable linkage between the two loans set out in the Deed of Trust and asserted by both Ms. Thompson and by Yellowfin, the Opinion
reached the mistaken conclusion, contrary to fact, that the two loans were completely independent.

The plain meaning of the words in Paragraph 21 made the conclusion untenable.

“We have repeatedly affirmed that every contract should be interpreted as a whole and in accordance with the plain meaning of its terms.”

Great Am. Ins. Co. v. Primo, 512 S.W.3d 890, 892 (Tex. 2017).

II. Waiver and Issue 4

Waiver is one of the issues that Supreme Court is considering in Santos v. Yellowfin but the Opinion failed to review it.

The panel in Santos refused to review the claim for waiver there, using almost the same language this panel used, that the issue was “premised on Santos’s mistaken conclusion that Yellowfin’s claim to enforce the Note accrued upon Santos’s foreclosure in 2007.”

It was wrong to do so and this panel should not follow that bad example.

Two weeks after the July 12, 2022 decision in Santos another panel in this Court got it right when it applied the binding precedent on waiver.

“The elements of waiver include (1) an existing right, benefit, or advantage held by a party; (2) the party has actual knowledge of the existence of the right; and (3) the party actually intends to relinquish the right or engages in intentional conduct inconsistent with the right.

Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 2008);

Internacional Realty, 449 S.W.3d at 528.

Waiver can be established by a party’s express renunciation of a known right or by “silence or inaction for so long a period as to show an intention to yield the known right.”

Aguiar v. Segal, 167 S.W.3d 443, 451 (Tex. App.-Houston [14th Dist.] 2005, pet. denied).”

Rescue Concepts Inc. v. Houreal Corp. No. 01-20- 00553-CV, Houston [1st dist.] July 28, 2022.

“When a trial court fails “to analyze or apply the law correctly,” it has clearly abused its discretion.

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

Essentially, the trial court has no discretion in determining the law or applying the law to the facts. Id.”

In re Auburn Creek Ltd. Partnership, 644 S.W.3d 837, 840 (Tex. 2022).

This Court’s decisions are not governed by a less rigorous standard.

As shown above, Ms. Thompson’s Brief cited Paragraph 21 in the Deed of Trust for the Note as granting a contractual option to call it immediately due and
payable when there was a default in paying the First Loan.

That very same Paragraph 21 was copied verbatim in Yellowfin’s Brief. They said that “Paragraph 21, by its plain terms, gives the “Lender” the right, but not the obligation to accelerate the balance based on an existing default under the terms of an obligation secured by a superior lien.

Paragraph 21 contains an optional acceleration clause and does not mandate that the loan is automatically accelerated.” Yellowfin Brief at 15.

Page 17 in the Opinion copied the line from Yellowfin’s Brief verbatim, repeating that “Paragraph 21, by its plain terms, gives the “Lender” the right, but not
the obligation to accelerate the balance based on an existing default under the terms of an obligation secured by a superior lien.”

The next sentence said “Thus, paragraph 21 does nothing to change the rule under Section 3.118 that a cause of action for enforcement of a note accrues upon
maturity or acceleration.

See TEX. BUS. & COM. CODE § 3.118(a); see also Holy Cross Church of God in Christ v.Wolf, 44 S.W.3d 562, 566 (Tex. 2001)

(“If a note or deed of trust secured by real property contains an optional acceleration clause, default does not ipso facto start limitations running on the note. Rather, the action accrues only when the holder actually exercises its option to accelerate.”).

The problem is the faulty conclusion that was drawn from just a single data point when there were two available.

The reference to Holy Cross is inapposite because the petition was filed thirteen years after the foreclosure and Yellowfin clearly admitted that the loan was no longer secured by anything.

“Yellowfin is not attempting to foreclose a lien on real property or to recover real property because its debt is unsecured.”

Yellowfin Brief at 20.

The faulty conclusion on Pages 17-18 was based on Holy Cross, which is for determining what is required to be able to accelerate a loan before foreclosure. It was used as the basis to deny Issue 4 on Page 21, completely contradicting Footnote 2 on Page 3 where the Opinion said that the July 2007 “foreclosure satisfied the First Loan and extinguished all junior liens, including the lien underlying the Note.”

The Note cannot have been simultaneously secured and unsecured by the same piece of real property when suit was filed in 2020 when that real estate was lost to Ms. Thompson through the foreclosure some thirteen years earlier in 2007.

Neither can the existence of the option in the Deed of Trust be ignored, but that is exactly what the Opinion did.

Ms. Thompson, Yellowfin, the Deed of Trust, and the Opinion are all in agreement that Paragraph 21 granted an optional way to call the loan due, in addition
to what is in Tex. Bus. & Com. Code §3.118.

Waiver came into play when the known option was not exercised.

See “VI. Waiver”, Brief at 27-29.

Here it was not exercised for some thirteen years. Yet the Opinion failed to deal with the waiver issue by simply saying it had “explained why Thompson’s position on accrual lacks merit.”Opinion at 21.

The Opinion is in conflict with the written document from the transaction, the positions of both sides, and itself. It should be withdrawn.

A. Policy Should Have Been Considered But It Was Not

“In addition to affording comfort and repose to the defendant, statutes of limitation protect the courts and the public from the perils of adjudicating stale
claims.”

Godoy v. Wells Fargo Bank, N.A., 575 S.W.3d 531, 538 (Tex. 2019).

The issue of policy as it related to Issues 2 and 3 for regarding limitations for enforcing a loan after thirteen years of inaction on a known claim, and Issue 4 for waiver, was completely ignored.

Policy was raised throughout Ms. Thompson’s Brief, most pointedly in Section “V. Public Policy on Limitations Should Be Respected.

Brief at 26.

The word “policy” does not appear in Yellowfin’s Brief, so they are apparently unopposed to Ms. Thompson’s position and have waived opposing it.

It was also completely missing from the Opinion.

That failure to address it came despite the fact that “[t]he statement of an issue or point will be treated as covering every subsidiary question that is fairly included.” Tex. R. App. P. 38.1(f).

There is no dispute that the option to sue on the Note existed for some thirteen years before it was exercised. That is longer than the limitations period for any unsecured debt in Texas.

Even if limitations had not expired, Ms. Thompson is entitled to a ruling on whether or not a thirteen year delay in suing on that unsecured debt is contrary to public policy.

III. The Summary Judgment Standard Was Not Met

Ms. Thompson reurges the argument that there was no competent evidence of the amount allegedly owed.

Appellant’s Brief at 29-31.

The cases cited by the Memorandum Opinion related to affidavits by people with knowledge of individual loans in simpler circumstances.

That was not the case here with the two linked loans and no servicing records.

The First Loan originated in May 2005 in the amount of $212,000. CR.94, ¶11.

Page 3 in the Opinion says that “[t]he Property sold for $225,000″ at the July 2007 foreclosure. CR.55.

There is no evidence of how the potential overage was applied to the amount owed on the Note.

That raised enough of an issue of material fact to prevent summary judgment based on the testimony in the Matt Miller affidavit saying Yellowfin had waived amounts owed before a certain date.

Waiving an amount allegedly owed is not the same as failing to give a credit that has been paid.

CONCLUSION

The terms in the Note and the Deed of Trust provide that the Note went into an uncured default before the July 3, 2007, foreclosure, twelve years before Yellowfin allegedly acquired its interest on August 29, 2019.

That was enough to trigger limitations. Limitations expired before the case was filed in 2020, and even if it had not, the right to sue was waived.

The summary judgment below should be reversed and rendered in favor of Ms. Thompson.

PRAYER

Ms. Thompson prays that this Motion be granted, that the Memorandum Opinion and Judgment be withdrawn and vacated, and that the case be reversed and remanded to the trial court for further proceedings, and that she be granted any further relief to which she may be entitled at law or in equity.

Respectfully submitted

Thompson v. Yellowfin Loan Servicing Corp.

No. 01-21-00147-CV

(Tex. App. Jan. 3, 2023)

 REPUBLISHED BY LIT: AUG 29, 2023
AUG 29, 2023

Above is the date LIT Last updated this article.

JUSTICE AMPARO GUERRA

Place 5

Justice Amparo Monique Guerra was elected to the Texas First Court of Appeals in 2020, bringing her record of academic and professional excellence, as well as her diverse background, to the bench.

She previously served as an Associate Municipal Judge for the City of Houston while practicing law full time. She was the youngest sitting judge on that court when she was originally appointed in 2005 at age 28.

Justice Guerra was named a Texas Super Lawyer and has nearly 20 years’ experience handling complex civil cases, from start to finish, in state and federal, trial and appellate courts throughout Texas and other states. She represented all types of clients, from individuals and families, to businesses of all sizes: from sole proprietorships and small and mid-size companies, to some of the largest corporations in the world. She worked in law firms of various sizes, including small, mid-size, and large, ultimately becoming the first Hispanic partner at her national law firm.

She graduated with distinction from St. George’s School in Newport, Rhode Island after attending all four years of high school there as a boarding student on a full academic scholarship.

Justice Guerra graduated from Rice University, where she was on the President’s Honor Roll, with a double major in Latin American Studies and Sociology.

She obtained her Juris Doctorate from the University of Houston Law Center, which awarded her a Dean’s Merit Scholarship, and two Public Interest Fellowships: one to work with Texas Rural Legal Aid, and the other with Farmworker Legal Services in Michigan.

Justice Guerra interned with and clerked for United States District Judge Filemón Vela in the Southern District of Texas.

Justice Guerra is multilingual. She received a Superior Certification in Commercial and Legal Spanish from the Madrid Chamber of Commerce, and she speaks Portuguese and Italian.

She is the daughter of Retired Senior Justice Linda Yanez: a farmworker, turned teacher, turned lawyer, who became the first Latina to serve on any Texas appellate court, and the first woman on the Thirteenth Court of Appeals.

Justice Guerra is a devoted wife, and a proud mom of three children. She enjoys running, reading with her children, and playing tennis and soccer with her family.

MEMORANDUM OPINION

After appellant Latanya Thompson defaulted on a promissory note, the holder of the note, appellee Yellowfin Loan Servicing Corp., as successor in interest to IndyMac Bank, F.S.B. (Yellowfin), accelerated all payments due under the note and, when Thompson still did not pay, sued to recover the balance owed.

Yellowfin moved for summary judgment on its breach of contract claim against Thompson. The trial court granted the motion and awarded Yellowfin its claimed damages.

On appeal, Thompson raises seven numbered issues, many of which overlap. In essence, Thompson (1) challenges the negotiability of and Yellowfin’s standing to enforce the promissory note, (2) asserts a limitations defense, and (3) contends that Yellowfin failed to meet its summary judgment burden.

We affirm.

Background

On May 20, 2005, Thompson executed two loans to purchase a residential property.

The first loan was for $212,000 (the First Loan)

and the second was for $53,000 (the Second Loan).

The Second Loan is at issue in this case and consists of a promissory note (the Note), secured by a deed of trust identified as the “secondary lien” (the Deed of Trust) encumbering real property located at 18930 Brighton Trails in Tomball, Texas (the Property).1

Thompson obtained both loans from IndyMac Bank, F.S.B.

Under the Note, Thompson agreed to make monthly payments in the amount of $460.22 for fifteen years, with a final balloon payment of $43,595.95, due on June 1, 2020.

The Note’s original principal balance was $53,000 with an interest rate of 9.875 percent.

1           The First Loan was also secured by a deed of trust encumbering the Property.

Thompson defaulted on her payments and the mortgagee of the First Loan, which at the time of foreclosure was Deutsche Bank National Trust Company, foreclosed on the loan in July 2007.

The Property sold for $225,000.

The proceeds from the foreclosure satisfied the First Loan and extinguished all junior liens, including the lien underlying the Note.2

In 2019, Yellowfin purchased the Note as part of a pool of mortgage notes sold by RCS Recovery Services, LLC (RCS).

In January 2020, Yellowfin sent Thompson notice of the purchase. Yellowfin then sent a notice of intent to accelerate the payments due under the Note as a result of Thompson’s default.

Yellowfin informed Thompson that it “agreed to waive and forgive the monthly installment payments due through 6/1/2019,” making the new “post waiver principal balance, as of 7/1/2019, [] $44,333.62.”

Per the notice, Thompson had thirty days to cure the default; if she did not, Yellowfin intended to accelerate the Note.

Thompson did not timely cure, and in March 2020, Yellowfin accelerated all payments due under the Note.

Thompson did not remit payment.

Yellowfin sued Thompson for breach of the Note and alleged that the amount owed under the Note was $44,333.62.

This amount did not include any amount owed

2  “It is well settled in Texas that a valid foreclosure on a senior lien (sometimes referred to as a ‘superior’ lien) extinguishes a junior lien (sometimes referred to as ‘inferior’ or ‘subordinate’) if there are not sufficient excess proceeds from the foreclosure sale to satisfy the junior lien.” I-10 Colony, Inc. v. Lee, 393 S.W.3d 467, 472 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).

but not paid prior to June 1, 2019; Yellowfin waived its right to collect those amounts.

Thompson counterclaimed for fraud and violation of the Texas Debt Collection Practices Act (TDCPA).

Yellowfin moved for summary judgment on its claim.

Thompson responded and raised the arguments she raises on appeal, which we discuss in more detail below.

The trial court granted Yellowfin’s motion, awarded $44,333.62 in damages, and awarded trial and conditional appellate attorney’s fees, court costs, and post- judgment interest.

The trial court also ordered Thompson take nothing on her counterclaims. Thompson appealed.

Issues Presented

Thompson presents seven numbered issues for review, which we copy here verbatim. We address overlapping issues together, when appropriate.

1.     Was there just a single transaction between IndyMac Bank, F.S.B. as the lender and Ms. Thompson as the borrower when both simultaneous loans between the parties were used to finance just one house?

2.     Is the two-year limitations period in TEX. PROP. CODE § 51.003 applicable to the Note when there was only one lender who financed the purchase of the property and the foreclosure of the First Loan by that lender voided the lender’s lien for the Note?

3.     Is the four-year limitations period in TEX. CIV. PRAC. & REM. CODE § 16.004 applicable to the Note when the lender’s cause of action contractually arose no later than the date of foreclosure of the First Loan in 2007?

4.     Is a right that a lender gave itself to sue on a debt for a default on another debt waived if it is not exercised for thirteen years after the original lender contractually caused it to accrue when it foreclosed?

5.     Is the Note still an obligation “secured by a real property lien” when it was acquired by a debt buyer twelve years after the lien against the property was voided by a foreclosure?

6.     When there are no servicing records for a 2005 loan can a guess by [a] stranger to the loan in 2019 for the amount that might be owed by the borrower meet [the] summary judgment standard in TEX. R. CIV. P. 166a?

7.     Does the clear instruction in the Note requiring an undertaking by the borrower to “tell the Note Holder in a letter that I am doing so” before making a prepayment destroy its negotiability because it keeps the document from meeting the definition of an “unconditional promise or order” required by TEX. BUS. & COM. CODE §§ 3.104(a) and 3.106?

Standard of Review

We review a trial court’s granting of summary judgment de novo.

Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007).

We review the evidence presented in the light most favorable to the nonmoving party.

Mann Frankford Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

The moving party bears the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law.

TEX. R. APP. P. 166a(c); Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018).

When a plaintiff moves for summary judgment on its own claim, it must prove that it is entitled to judgment as a matter of law on each element of its cause of action.

Castillo Info. Tech. Servs., LLC v. Dyonyx, L.P., 554 S.W.3d 41, 45 (Tex. App.—Houston [1st Dist.] 2017, no pet.).

Analysis

A.               Negotiability of and Standing to Enforce the Note

In her seventh issue, Thompson argues that the Note was not a negotiable instrument and that Yellowfin had no standing to enforce it.

Because standing implicates a court’s subject matter jurisdiction, we address this issue first.

See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445–46 (Tex. 1993); David Powers Homes, Inc. v. M.L. Rendleman Co., Inc., 355 S.W.3d 327, 333 (Tex. App.— Houston [1st Dist.] 2011, no pet.).

“The negotiability of an instrument is a question of law.”

Guniganti v. Kalvakuntla, 346 S.W.3d 242, 248 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

In Texas, negotiable instruments are governed by the Uniform Commercial Code (UCC), as adopted by the Texas Legislature and codified in the Texas Business and Commerce Code.

See Amberboy v. Societe de Banque Privee, 831 S.W.2d 793, 793 (Tex. 1992); TEX. BUS. & COM. CODE tit. 1, §§ 1.10112.004 (UCC).

“Negotiable instrument” means an “unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order,” so long as the promise or order “does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money[.]”

TEX. BUS. & COM. CODE § 3.104(a).

A promise or order is unconditional unless it states an express condition to payment, that the promise or order is subject to or governed by another record, or that rights or obligations with respect to the promise or order are stated in another record.

Id. § 3.106(a).

Thompson does not dispute that the Note is a promise to pay.

However, Thompson argues that the Note is rendered non-negotiable under Section 3.106(a) because the Note also includes “an express condition to payment,” in that it required Thompson to provide the lender written notice of prepayment of principal.

According to Thompson, this prepayment-notice requirement imposes an “other undertaking” on Thompson, the borrower, to do an “act in addition to the payment of money.”

See id. § 3.104(a).

Thompson contends the inclusion renders the Note non-negotiable, and therefore, it could not have been negotiated by an indorsement under Chapter 3 of the Business and Commerce Code as Yellowfin attempted to do.

Thus, according to Thompson, Yellowfin did not have standing to enforce the Note.

Section 6 of the Note states:

Our sister court in Fort Worth recently considered, and rejected, a similar argument.

See Tapia v. Collins Asset Group, LLC, No. 02-20-00129-CV, 2022 WL 325392, at *4 (Tex. App.—Fort Worth Feb. 3, 2022, no pet.) (mem. op.).

In Tapia, the borrower signed a promissory note that contained the same language quoted above related to notice of prepayment. Id. at *1.

On appeal, the borrower argued that this provision in the note made it conditional and not a negotiable instrument. Id. at*4. The court rejected this argument and concluded that the “general requirement that a maker give written notice of any principal prepayment is not a negotiability- destroying ‘other undertaking’ because a maker’s ability to prepay a loan is a discretionary benefit, not a burden[.]” Id.

Citing a number of cases from other jurisdictions to consider the issue, the court explained that “the right of prepayment is a voluntary option that defendants may elect to exercise solely at their discretion. Indeed, such an allowance confers a benefit, not a burden, upon defendants, who can freely choose to decline the opportunity.” Id.

(citing In re Walker, 466 B.R. 271, 283 (Bankr. E.D. Pa. 2012); HSBC Bank USA, N.A. v. Gouda, 2010 WL 5128666, at *3

(N.J. Super. App. Div. Dec. 17, 2010) (per curiam), cert. denied, 17 A.3d 1245 (N.J. 2011); Brichant v. Wells Fargo Bank, N.A., No. 3:12-CV-0285, 2014 WL 11515845,at *4 (M.D. Tenn. Feb. 24, 2014)).

Accordingly, because principal prepayment was an option wholly within the borrower’s control to exercise, the court held that any addendum to that option did not convert her promise to pay the note from an absolute to a conditional one. Id.

We agree with this analysis. The Note here contained the same language as in Tapia.

Prepayment of the principal under the Note is voluntary, not required, and we decline to hold that the inclusion of this provision constitutes an “other undertaking” or “express condition to payment” that destroys the negotiability of the Note.

See id.; PNC Mortgage v. Howard, 618 S.W.3d 75, 86 (Tex. App.—Dallas 2019), rev’d on other grounds, 616 S.W.3d 581 (Tex. 2021)

(stating that notice of prepayment was “incidental to the note’s unconditional promise to pay” and court was unaware of any authority to support conclusion that “notice provisions of this sort would render the note non-negotiable”).

Having found that the Note was a negotiable instrument, we conclude that Yellowfin established it was the holder of the Note, and therefore, had standing to enforce the Note.

See Leavings v. Mills, 175 S.W.3d 301, 309 (Tex. App.—Houston [1st Dist.] 2004, no pet.)

(“To prevail on a summary judgment motion, a party seeking to enforce a note must prove

(1) that a certain note is in question,

(2) that the party sued signed the note,

(3) that the plaintiff is the owner or holder of the note,

and

(4) that a certain balance is due and owing on the note.”).

A holder of an instrument is a “[p]erson entitled to enforce” an instrument. Id.

“A person can become the holder of an instrument when the instrument is issued to that person; or he can become a holder by negotiation.”

U.C.C. cmt. 1, TEX. BUS. & COM. CODE § 3.201.

Negotiation is the “transfer of possession of an instrument . . . by a person other than the issuer to a person who thereby becomes its holder.”

TEX. BUS. & COM. CODE §3.201(a); Leavings, 175 S.W.3d at 309.

“[I]f an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder.”

TEX. BUS. & COM. CODE § 3.201(b); Leavings, 175 S.W.3d at 309.

“The indorsement must be written by or on behalf of the holder and on the instrument or on a paper so firmly affixed to it as to become part of it.” Leavings, 175 S.W.3d at 309.

“If an instrument not in the possession of the original holder lacks a written indorsement and proof of the chain of title, the person in possession does not have the status of a holder.” Id.

The summary judgment evidence demonstrates that Yellowfin has possession of the Note and that the allonges are attached to the Note. Matt Miller, Yellowfin’s custodian of records, testified that Yellowfin acquired the Note on August 29, 2019, “as part of a pool of mortgage notes being sold by RCS Recovery Services, LLC.”

Miller also testified that Yellowfin has possession of the original Note and that the allonges are affixed and attached to the Note.

Miller attached a copy of the Note, to which a series of putative indorsements and allonges were affixed,3 as well as the purchase and sale agreement between RCS and Yellowfin.

The first indorsement shows that IndyMac indorsed the Note to Trinity Financial Services.

Trinity Financial Services then executed an allonge to RCS, which then sold the Note and executed an allonge to Yellowfin.

We conclude that the indorsements and allonges

3   An indorsement is the placing of a signature, sometimes with an additional notation, on the back of a negotiable instrument to transfer or guarantee the instrument or to acknowledge payment. See “Indorsement,” BLACK’S LAW DICTIONARY (11th ed. 2019).

An allonge is “[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements.” See “Allonge,” BLACK’S LAW DICTIONARY (11th ed. 2019).

on the Note, as well as the purchase and sale agreement between RCS and Yellowfin, constitute more than a scintilla of evidence of the transfer of the possession of the Note from the original owner, IndyMac, to the ultimate owner, Yellowfin.

See Santos v. Yellowfin Loan Servicing Corp., No. 14-21-00151-CV, 2022 WL 2678846, at *4 (Tex. App.—Houston [14th Dist.] July 12, 2022, pet. filed) (mem. op.) (holding similar evidence of note, indorsements, allonges, and purchase and sale agreement, was sufficient evidence that ownership of note was transferred to Yellowfin, even though presumption of ownership upon transfer did not apply under the UCC).

Thus, Yellowfin met its summary judgment burden to establish that it was the owner or holder of the Note. Thompson did not offer any controverting evidence that would raise a fact issue on Yellowfin’s status as holder of the Note.

We overrule Thompson’s seventh issue.

B.                Statute of Limitations

In her first, second, third, and fifth issues, Thompson argues that Yellowfin’s claim was time-barred. According to Thompson, the Note was part of a single loan agreement and transaction between Thompson and IndyMac; the lender foreclosed on the First Loan in 2007 extinguishing all junior liens; and any right to enforce the Note accrued upon foreclosure.

Thus, Thompson contends, the statute of limitations expired two years, or at the latest four years, after foreclosure, or in 2009 or 2011, at the latest. Because Yellowfin did not file suit until 2020, Thompson argues the suit is time-barred.

Thompson and Yellowfin disagree on when Yellowfin’s claim accrued and which statute of limitations applies to Yellowfin’s claim.

Yellowfin contends that its claim did not accrue until it accelerated the note, and the six-year limitations period applicable to an action to enforce a promissory note found in the UCC applies.

See TEX. BUS. & COM. CODE § 3.118 (providing statute of limitations to sue on negotiable instruments is six years).

Thompson, in contrast, argues that Yellowfin’s claim accrued at the point of foreclosure, and either the two-year limitations period for deficiency claims applies, see TEX. PROP. CODE § 51.003(a) (if sale price from foreclosure is less than unpaid balance of indebtedness, action to recover deficiency must be brought within two years of foreclosure sale), or, alternatively, the four-year limitations period for a claim for a debt applies.

See TEX. CIV. PRAC. & REM. CODE § 16.004(a)(3)

(suit for cause of action for debt must be brought within four years). The Fourteenth Court of Appeals analyzed this question in a recent factually similar case also brought by Yellowfin. See Santos, 2022 WL 2678846, at *4–6. There, just like here, the borrower obtained two loans to purchase real property from the same lender. Id. at *1.

The second loan was at issue in Santos, which consisted of a promissory note secured by a deed of trust. Id. The borrower defaulted and the mortgagee foreclosed on the first loan in 2007. Id.

The proceeds from the foreclosure satisfied the first loan and extinguished all junior liens, including the lien underlying the note on the second loan. Id.

In 2019, Yellowfin purchased the outstanding note and became the putative current owner and holder of the note. Id.

Yellowfin sent the borrower notice of the purchase and a notice of intent to accelerate the payments due under the note as a result of the borrower’s default. Id.

Per the notice, the borrower had thirty days to cure the default; if she did not, Yellowfin intended to accelerate the Note. Id.

The borrower did not timely cure, and Yellowfin accelerated all payments due under the Note. Id. The borrower did not remit payment. Id.

As in this case, the borrower in Santos argued that the cause of action accrued at the time of foreclosure and was barred by the two-year statute of limitations for deficiency claims. Id. at *5.

The Fourteenth Court explained that when a borrower is sued after real property is sold at a foreclosure sale, and judgment is sought against the borrower because the foreclosure sales price is less than the amount owed, “then

(1) the suit is for a ‘deficiency judgment,’

(2) the suit must be brought within two years of the foreclosure sale,

and

(3) the suit is governed by § 51.003.” Id.

(quoting PlainsCapital Bank v. Martin, 459 S.W.3d 550, 555 (Tex. 2015)).

“But when a senior lienholder forecloses on its lien, and the proceeds of that sale do not satisfy the debt from a junior lien, section 51.003 does not apply to the junior lienholder’s suit to recover the value of its note.

This is because the junior lienholder has not foreclosed on its lien; only the senior lienholder has.” Id

Because Yellowfin (or its predecessor-in-interest), as the junior lienholder, did not foreclose on the note, and only the separate lender as the senior lienholder foreclosed on its lien, the court held that Yellowfin was not seeking a deficiency judgment from the foreclosure sale and Section 51.003 did not apply.

Id. at *6.

This Court previously considered a similar issue in Mandarino v. Sherwood Lane Investments, LLC, No. 01-15-00192-CV, 2016 WL 4034568 (Tex. App. Houston [1st Dist.] July 26, 2016, no pet.) (mem. op.).

There, appellants purchased a third party’s ownership interest in an apartment complex and signed a promissory note with the third party as payee. Id. at *1.

The third party still owed a portion of the principal from its original purchase of the apartment complex (the “First Lien Principal”), which it incorporated into the new promissory note. Id.

The original note on the First Lien Principal was designated the “wrapped note” and the note signed by appellants was named the “wraparound note.” Id.

The senior lienholder, who had possession of the wrapped note, foreclosed on its lien after appellants defaulted on their obligations to both notes. Id. at *8. However, the proceeds of that sale did not satisfy any of the debt from the junior lien, which was the wraparound note. Id.

The junior lienholder sued to recover the unpaid balance of its note, and appellants argued that section 51.003 applied to time-bar the suit. Id. at *2, 7.

But we held that the section did not apply because the junior lienholder did not foreclose on its lien and, thus, was not seeking a deficiency judgment when it sued on the wraparound note. Id. at *8.

Because we concluded that the junior lienholder was not seeking a deficiency judgment when it sued on its promissory note, it was not subject to the statute of limitations for deficiency judgments. Id.

The same is true here.

The senior lienholder, which at the time of foreclosure was Deutsche Bank, foreclosed on the First Loan—Yellowfin (or its predecessor-in- interest) did not.

Although the proceeds from the 2007 foreclosure sale did not satisfy the debt owed under the Note, there was no foreclosure by Yellowfin.

That IndyMac was the original lender for both the First Loan and the Second Loan does not change the outcome—they were separate transactions that created separate obligations.

Thompson’s obligation to pay on the Note was not eliminated by the foreclosure of the First Loan and extinguishment of the junior lien securing the Note.

See Poston v. Wachovia Mortg. Corp., No. 14-11-00485-CV, 2012 WL 1606340, at *2 (Tex. App.—Houston [14th Dist.] May 8, 2012, pet. denied) (mem. op.)

(“Therefore, when a junior lien is extinguished by foreclosure on a superior lien, the unpaid portion of the loan that was secured by the junior lien merely becomes an unsecured debt for which the lender may obtain a money judgment. Consequently, Wachovia’s right to obtain a money judgment based on the Postons’ failure to repay the second note was not eliminated by foreclosure of the superior lien and extinguishment of the junior lien securing payment of the second note.”

(internal citations omitted)).

Therefore, as the Fourteenth Court of Appeals held in Santos, we hold that Yellowfin is not seeking a deficiency judgment from the 2007 foreclosure sale and Section 51.003 does not apply to Yellowfin’s suit. See Santos, 2022 WL 2678846, at *5–6; see also Mandarino, 2016 WL 4034568, at *7–8.

Rather, having concluded above the Note is a negotiable instrument, we agree with Yellowfin that Section 3.118 of the Texas Business and Commerce Code is the appropriate statute of limitations.

See Mandarino, 2016 WL 4034568, at *8 (applying Section 3.118 to action to enforce promissory note);

Aguero v. Ramirez, 70 S.W.3d 372, 374 (Tex. App.—Corpus Christi–Edinburg 2002, pet. denied)

(concluding that “where there is a debt secured by a note, which is, in turn, secured by a lien, the note and lien constitute separate obligations,” and therefore, because plaintiff sued to enforce payment only on promissory note—and did not sue to enforce lien, deed of trust, or foreclose on real property—six-year statute of limitations in Section 3.118 applied).

Section 3.118 states that an action to enforce a promissory note “must be commenced within six years after the due date . . . stated in the note or, if a due date is accelerated, within six years after the accelerated due date.”

TEX. BUS. & COM. CODE § 3.118(a).

The date of maturity on the Note was June 1, 2020, and Yellowfin produced evidence that it accelerated the Note on March 25, 2020, three months before filing suit and well within the six-year limitations period.

Thus, in the absence of any evidence that the Note had been accelerated previously, the March 2020 acceleration date triggered the running of the statute of limitations.

See Mandarino, 2016 WL 4034568, at *8

(holding that statute of limitations was six years after due date stated in note in absence of evidence that note was accelerated).

Citing to Paragraph 21 of the Deed of Trust, Thompson contends that “it was the payment defaults on the First Loan that contractually caused the accrual of IndyMac’s cause of action to enforce both the First Loan and the Note and led to the July 3, 2007 foreclosure.” Paragraph 21 states:

21. Senior Liens. Borrower shall perform all of Borrower’s obligations under any deed of trust, security instrument or other security agreement, which has priority over this Security Instrument, including Borrower’s covenants to make payments when due.

Borrower agrees that should default be made in the payment of any note secured by an[y] prior valid encumbrance against the Property, or in any of the covenants of any prior deed of trust or other security agreement, then the Note secured by this Security Instrument, at the option of Lender, shall at once become due and payable.

Lender may, but shall not be obligated to, advance monies to protect Lender’s lien position and add the amount of such advances to Borrower’s loan amount.

(Emphasis added).

Paragraph 21 gives the lender the right, but does not require the lender, to accelerate the balance on the Note based on an existing default under the terms of an obligation secured by a superior lien, such as the First Loan.

Paragraph 21, therefore, contains an optional acceleration clause but does not require the lender to automatically accelerate the loan upon default on an obligation secured by a superior lien.

Thus, paragraph 21 does nothing to change the rule under Section 3.118 that a cause of action for enforcement of a note accrues upon maturity or acceleration.

See TEX. BUS. & COM. CODE § 3.118(a);

see also Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001)

(“If a note or deed of trust secured by real property contains an optional acceleration clause, default does not ipso facto start limitations running on the note. Rather, the action accrues only when the holder actually exercises its option to accelerate.”).

Thompson did not introduce any evidence demonstrating that a predecessor-in-interest to Yellowfin exercised its right to optional acceleration at the time of foreclosure, or at any other time prior to Yellowfin’s acceleration of the Note in March 2020.

Accordingly, Thompson did not raise a fact issue regarding her affirmative defense that Yellowfin’s claim accrued outside the applicable limitations period.

See Santos, 2022 WL 2678846, at*6.

We overrule Thompson’s first, second, third, and fifth issues.

C.               Propriety of Summary Judgment

In her sixth issue, Thompson argues Yellowfin failed to meet its summary judgment burden under Texas Rule of Civil Procedure 166a. Specifically, Thompson argues that Yellowfin did not offer competent summary judgment proof of the amount of damages claimed. According to Thompson, the amount sought by Yellowfin was a “naked guess.”

Matt Miller, the custodian of records for Yellowfin, testified by affidavit:

According to [Yellowfin’s] records, [Thompson] owes a balance of $44,333.62. [Yellowfin] is not accruing pre-judgment interest.

The balance owed was calculated by conducting an amortization of the original principal amount of the Note in accordance with the terms prescribed by the Note

(ie: an amortization of $53,000.00 over fifteen years with interest accruing at a rate of 9.875%, and a final balloon payment of $43,595.95)

then assuming that each and every payment was timely made through June 1, 2019.

To the extent any payment was not made prior to June 1, 2019, Yellowfin waives its right to collect that payment and is not seeking to recover any portion of that payment through this lawsuit.

Courts in Texas have held that similar evidence, such as an affidavit simply setting forth the balance due on the note, is sufficient to sustain an award of summary judgment; detailed proof is not required.

See HHH Farms, L.L.C. v. Fannin Bank, 648 S.W.3d 387, 405 (Tex. App.—Texarkana 2022, pet. filed)

(“A lender is not required to file detailed proof [of] the calculations reflecting the balance due on a note; an affidavit by a bank employee which sets forth the total balance due on a note is sufficient to sustain an award of summary judgment.”);

FFP Mktg. Co., Inc.v. Long Lane Master Tr. IV, 169 S.W.3d 402, 411 (Tex. App.—Fort Worth 2005, no pet.)

(“In a cause of action on a promissory note, the plaintiff must establish the amount due on the note. Generally, an affidavit that sets forth the total balance due on a note is sufficient to sustain an award of summary judgment. Detailed proof of the balance is not required.”);

Das v. Deutsche Bank Nat’l Tr. Co., No. 05-12-01612- CV, 2014 WL 1022385, at *2 (Tex. App.—Dallas Mar. 5, 2014, pet. denied) (mem. op.)

(accepting affidavit testimony from employee of “[loan] servicing agent” as valid evidence of balance due and owing on note, given employee’s testimony that he had verified and researched loan’s history and current account information on behalf of holder, Deutsche Bank);

Albright v. Regions Bank, No. 13-08-00262-CV, 2009 WL 3489853, at *4 (Tex. App.—Corpus Christi—Edinburg Oct. 29, 2009, no pet.) (mem. op.)

(“An affidavit made on personal knowledge of the bank officer, which identifies the notes and guaranty and recites the principal and interest due . . . is sufficient to support a summary judgment motion.”);

Greene v. Deutsche Bank Nat’l Tr. Co., No. 01-04-00483-CV, 2005 WL 1244604, at *1, 3 (Tex. App.—Houston [1st Dist.] May 26, 2005, pet. denied) (mem. op.)

(accepting the affidavit of manager for “loan servicing agent” as person sufficiently situated to testify on balance owed, based on synthesis of eleven records related to loan’s account history).

Moreover, in Santos, the Fourteenth Court of Appeals held that almost identical testimony was sufficient summary judgment evidence to establish the amount owed on the outstanding note.

Santos, 2022 WL 2678846, at *7.4 Thompson

4         In Santos, Yellowfin’s custodian of records testified as follows:

According to Plaintiff’s records, Defendant owes a balance of $21,023.13. Plaintiff is not accruing pre-judgment interest.

The balance owed was calculated by conducting an amortization of the original principal amount of the Note in accordance with the terms prescribed by the Note (ie: an amortization of $24,398.00 over twenty years with interest accruing at a rate of 11.25 %, and a final balloon payment of $17,263.03)then assuming that each and every payment was timely made through May 1, 2019. To the extent any payment was not made prior to June 1, 2019, Yellowfin waives its right to collect that payment and is not seeking to recover any portion of that payment through this lawsuit.

Santos v. Yellowfin Loan Servicing Corp., No. 14-21-00151-CV, 2022 WL 2678846, at *7 (Tex. App.—Houston [14th Dist.] July 12, 2022, pet. filed) (mem. op.).

did not present any evidence that she owed a different amount of money or that she was entitled to any credits or offsets (beyond the amounts waived by Yellowfin through June 2019).

See id.

Accordingly, we hold that Yellowfin carried its summary judgment burden to show its entitlement to the damages awarded by the trial court.

We overrule Thompson’s sixth issue.

D.               Remaining Issues

In her fourth issue, Thompson argues Yellowfin’s right to sue on a debt was waived because it took no action on it for more than thirteen years after its claim contractually accrued.

This issue is premised on Thompson’s mistaken contention that Yellowfin’s claim to enforce the Note accrued upon the 2007 foreclosure.

We have already explained why Thompson’s position on accrual lacks merit. Accordingly, we overrule Thompson’s fourth issue.

Conclusion

We affirm the trial court’s judgment.

Amparo Guerra Justice

Panel consists of Justices Kelly, Rivas-Molloy, and Guerra.

A shocking opinion.

Investor opportunity!

This property is being offered at Public Auction on 05-07-2019. Visit Auction.com now to view additional photos, Property Inspection Report with title information, plat maps and interior inspection reports when available. Auction.com is the nation’s leading real estate transaction platform focused exclusively on the sale of residential foreclosure and bank-owned properties.

The majority of these properties are priced below market value. Don’t miss this special opportunity to buy homes at wholesale prices! In addition to this property, 962 other properties are scheduled for sale at this same Foreclosure Sale.

In our online auctions and live Foreclosure Sales, Auction.com currently has 292 properties scheduled for sale in Harris County and 1617 throughout Texas. All properties and sale details can be found with a simple search at Auction.com. Create a FREE account today to find more properties like this one, save searches of properties that meet your investment criteria and have the properties you’re looking for emailed directly to you when posted in an upcoming sale event.

To view the complete details of this exact property, click the Auction.com link below or paste the Property ID 2770847 into the search bar at Auction.com

Who is Matthew D. “Matt” Miller, founder of Yellowfin?

Evidently, Miller established Yellowfin in 2019, seemingly put it on the back burner by 2021, and subsequently took on a role at the first ‘climate change’ bank, where he presently works.

One could speculate that he might be generating an additional income stream through investments in financial crisis debt—something veiled from public awareness.

Once he’s accounted for his substantial commission fees, disbursed to entities like the debt-collecting Noack Law Firm, as well as legal fees for representing HWA in court appeals and related matters, it’s plausible that the venture hasn’t turned out to be the lucrative cash cow he initially envisioned.

While this supposition remains unconfirmed, it gains credence from his transition to a salaried position.

Astonishingly, this hasn’t deterred the Texas judiciary from throwing its weight behind his debt procurement and collection venture.

Case (Cause) Number Style File Date Court Case Region Type Of Action / Offense
202183392- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN INTEREST TO MIT vs. BYRD, OSCAR 12/28/2021 334 Civil Debt / Contract – Consumer / DTPA
202041209- 7
Ready Docket
YELLOWFIN LOAN SERVICING CORP (AS SUCCESSOR IN INTEREST TO SCME vs.
LOPEZ, JOSE M
7/10/2020 190 Civil Debt / Contract – Consumer / DTPA
202038199- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN vs. KELLY, JOSEPH 6/26/2020 190 Civil Debt / Contract – Debt / Contract
202038289- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS SUCCESSOR IN INTEREST TO FIRST vs.
CASANOVA, GLORIA
6/26/2020 011 Civil Debt / Contract – Debt / Contract
202036937- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP( AS THE SUCCESSOR IN INTEREST vs. WOOD, WALLACE R 6/19/2020 125 Civil Debt / Contract – Debt / Contract
202036988- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR I vs.
VARGAS, JORGE L
6/19/2020 295 Civil Debt / Contract – Debt / Contract
202037003- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN INTEREST TO vs. MARTINEZ, ISRAEL 6/19/2020 281 Civil Debt / Contract – Debt / Contract
202037029- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN vs.
BYRD, OSCAR
6/19/2020 061 Civil Debt / Contract – Debt / Contract
202037034- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN vs. MIRANDA, FELICITAS 6/19/2020 151 Civil Debt / Contract – Debt / Contract
202037149- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN INTEREST TO vs.
REDDING, ALLEN
6/19/2020 281 Civil Debt / Contract – Consumer / DTPA
202035788- 7
Ready Docket
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN vs. POREE, ANNETTE 6/16/2020 127 Civil Debt / Contract – Debt / Contract
202035811- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN INTEREST TO FIRST vs.
WESSON, MARY L
6/16/2020 165 Civil Debt / Contract – Debt / Contract
202035548- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP AS THE SUCCESSOR I vs. BEDOY, ARIEL A 6/15/2020 125 Civil Debt / Contract – Debt / Contract
202035558- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN INTEREST TO FIRST vs.
DIAZ, JOSE V
6/15/2020 055 Civil Debt / Contract – Debt / Contract
202035562- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN INTEREST TO FIRST vs. ZUBIRIA, MIGUEL A 6/15/2020 055 Civil Debt / Contract – Debt / Contract
202035563- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS SUCCESSOR IN INT vs.
SHRIVER, MARK A
6/15/2020 152 Civil Debt / Contract – Debt / Contract
202035566- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN vs. BRADLEY, ALBERT J (JR) 6/15/2020 269 Civil Debt / Contract – Debt / Contract
202035574- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS SUCCESSOR IN INT vs.
WILLS, HENRY C (III)
6/15/2020 190 Civil Debt / Contract – Debt / Contract
202035579- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS SUCCESSOR IN INTEREST TO FIRST vs. MORONES, MARIA D 6/15/2020 164 Civil Debt / Contract – Debt / Contract
202035596- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP vs.
WYTHE, JUSTIN L
6/15/2020 151 Civil Debt / Contract – Debt / Contract
202035613- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN INTEREST TO FIRST vs. BERNAL, CESAR A 6/15/2020 281 Civil Debt / Contract – Debt / Contract
202035721- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP vs.
PINEDA, CARLOS S
6/15/2020 129 Civil Debt / Contract – Consumer / DTPA
202035722- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN INTEREST TO FIRST vs. WRIGHT, MARK A 6/15/2020 165 Civil Debt / Contract – Debt / Contract
202035442- 7
Case On Appeal – Civil
YELLOWFIN LOAN SERVICING CORP (AS A SUCCESSOR IN I vs.
SANTOS, DEYSI R
6/12/2020 295 Civil Debt / Contract – Consumer / DTPA
202034638- 7
Ready Docket
YELLOWFIN LOAN SERVICING CORP AS THE SUCCESSOR IN INTEREST vs. LEE, URAL J 6/10/2020 281 Civil Debt / Contract – Debt / Contract
202034652- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN INTEREST TO MILA vs.
INA, ERICA
6/10/2020 295 Civil Debt / Contract – Debt / Contract
202034653- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN vs. RANGEL, JOSE LUIS 6/10/2020 080 Civil Debt / Contract – Debt / Contract
202034654- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS SUCCESSOR IN INTEREST TO WELLS vs.
NGUYEN, CHI V
6/10/2020 189 Civil Debt / Contract – Debt / Contract
202034662- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN INTEREST TO LONG vs. COLE, SONDRA D 6/10/2020 080 Civil Debt / Contract – Debt / Contract
202034664- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN INTEREST TO FIRST vs.
PECK, MOLLY A
6/10/2020 152 Civil Debt / Contract – Debt / Contract
202034671- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN INTEREST) vs. GRIFFIN, AISHA 6/10/2020 125 Civil Debt / Contract – Debt / Contract
202034672- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN vs.
BEAL, LUCILLE C
6/10/2020 152 Civil Debt / Contract – Debt / Contract
202034673- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS SUCCESSOR IN INT vs. ESCOBAR, JAIME 6/10/2020 165 Civil Debt / Contract – Debt / Contract
202034678- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS SUCCESSOR IN INTEREST TO FIRST vs.
TAYLOR, NINA J
6/10/2020 334 Civil Debt / Contract – Debt / Contract
202034679- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS SUCCESSOR IN INT vs. STATEN, JACQULYN D 6/10/2020 215 Civil Debt / Contract – Debt / Contract
202034680- 7
Disposed (Final)
YELLOWFIN LOAN SERVICING CORP (AS THE SUCCESSOR IN INTEREST TO FIRST vs.
DINH, SON
6/10/2020 061 Civil Debt / Contract – Debt / Contract
201614143- 7
Disposed (Final)
RACKLEY, LARRY vs. DAVIS, LARRY LOYD 3/3/2016 234 Civil Debt / Contract – Fraud / Misrepresentation
201234938- 7
Disposed (Final)
YELLOWFIN UNLIMITED LLC vs.
BULL-SHIRTS INC
6/15/2012 295 Civil BREACH OF CONTRACT

(2019-2021).

Mission Statement

Climate First Bank is the world’s first FDIC-insured community bank founded to combat the climate crisis.

The bank is committed to doing its part to curb climate change and is Fossil Free Certified, meaning that it doesn’t invest in or finance fossil fuels.

Climate First Bank is a legal benefits corporation and is in the process of being verified as a B Corp company.

The bank is dedicated to supporting projects in the community that create a positive environmental or social impact and has been carbon neutral since day one.

As a Third-Party Debt Collector, Craig Noack of The Noack Law Firm’s Debt Collectin’ Activities and Judgments are Void

Noack Did Not Hold an Active Surety Bond with the State of Texas to Collect Debts for Clients at the time of Filing these Yellowfin Lawsuits

Lehman Brothers Robosigned Note Resurfaces: LIT’s Yellowfin Fraud Series Digs Deeper

From the Absurd to the Astonishing: Expired Debt Collection, Open Docket Violation, and the Actions of a Rogue Collector for a Fl Debt Buyer.

Yellowfin Fraud Series by Lit Chronicles 75-Yr-Old Oscar Byrd’s Second Brush with Texas Judicial Malfeasance

Piecing Together the Bizarre: Expired Debt Collection, Breach of Judicial Transparency, and a Debt Collecting Law Firm’s Lengthy Defiance.

Where Do You Draw the Line, Texas? Does Bandit Lawyer Craig Noack Have Any Consequences?

President of the Texas Creditors Bar Ass. says Our entire economic engine requires there be consequences for failure to pay a judgment.

Yellowfin’s Debt Collection Fraud: Chasing Unsecured Loans in Texas from Financial Crisis-Era Loans
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

To Top