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					                                           No. _________________


                                        In the Supreme Court of Texas

____________________________________________________________________________

                               Laura M. Brown and Robert L. Brown, Petitioners

                                                     vs.

                                        EMC Mortgage Corporation,
                                             Respondent

_______________________________________________________________________________

                   On appeal from the Fifth Court of Appeals
                                at Dallas, Texas
_____________________________________________________________________________




                                         PETITION FOR REVIEW


_______________________________________________________________________________

                                                           Michael Brinkley
                                                           State Bar No. 03004300
                                                           B RINKLEY L AW PLLC
                                                           P. O. Box 820711
                                                           Fort Worth, TX 76182-0711
                                                           (817) 284-3535; fax (888) 388-6031
                                                           m@michaelbrinkley.com

                                                           Attorney for Petitioners




P ETITIO N   FO R   R EV IEW
                                      Identity of Parties and Counsel

             The following is a complete list of all parties to this action:

             (1)        Laura M. Brown and Robert L. Brown, appellants
                        3706 McCreary Road
                        Parker, Texas 75002

             (2)        EMC Mortgage Corporation, appellee
                        c/o William G. Compton
                        A NDREWS K URTH LLP
                        1717 Main, Suite 3700
                        Dallas, Texas 75201

             (3)        Michael Brinkley, attorney for appellants
                        P. O. Box 820711
                        Fort Worth, Texas 76182-0711

             (4)        William G .Compton, attorney for appellee
                        A NDREWS K URTH LLP
                        1717 Main, Suite 3700
                        Dallas, Texas 75201




P ETITIO N   FO R   R EV IEW                          2
                               Table of Contents

                                                   Page

Index of Authorities                                  4

Statement of the Case                                 5

Statement of Jurisdiction                             6

Issues Presented                                      6

Statement of Facts                                    7

Summary of the Argument                               8

Argument and Authorities                              8

Prayer                                               13

Certificate of Service                               15

Appendix I                                           16




P ETITIO N   FO R   R EV IEW          3
                                  Index of Authorities


Cases                                                                             Page

Cadle Co. v. Bankston & Lobingier, 868 S.W.2d 918, 921
      (Tex.App. --- Fort Worth, 1994)                                                9

Casso v. Brand, 776 S.W. 2d 551, 558 (Tex. 1989)                                    10

Davis v. City of Grapevine, 188 S.W.3d 748, 755-756 (Tex.App.–Fort Worth, 2006)    10

EMC Mortgage Corp. v. Jones, 252 S.W.3d 857 (Tex.App.–Dallas 2008)            12, 13

FFP Mktng. Co., Inc. V. Long Lane Master Trust IV, 169 S.W.3d 402
     (Tex.App.–FortWorth 2005, no pet.)                                             10

Hollingsworth v. Hollingsworth, 274 S.W.3d 811, 814-815
      (Tex.App.–Dallas 2008, no pet.)                                               12

McCurry v. Aetna Casualty and Surety Company, 742 S.W.2d 863, 867
     (Tex.App. — Corpus Christi 1987, writ denied)                                  11

Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998)                         13

Thompson v. City of Corsicana Housing Authority,
     57 S.W.3d, 557-558 (Tex.App.–Waco, 2001)                                       10

Whitaker v. Huffaker, 790 S.W.2d 761, 763 (Tex.App.— El Paso, 1990)                 11


Statutes

T EX. C IV. P RAC.& R EM. C ODE A NN. §16.035(d)                                    12




P ETITIO N   FO R   R EV IEW                4
                                           No. _________________


                                        In the Supreme Court of Texas

____________________________________________________________________________

                               Laura M. Brown and Robert L. Brown, Petitioners

                                                     vs.

                                        EMC Mortgage Corporation,
                                             Respondent

_______________________________________________________________________________

                   On appeal from the Fifth Court of Appeals
                                at Dallas, Texas
_____________________________________________________________________________




                                         PETITION FOR REVIEW


_______________________________________________________________________________

TO THE HONORABLE SUPREME COURT OF TEXAS:

             Petitioners, Laura M. Brown and Robert L. Brown, respectfully submit this Petition

for Review.




                                            Statement of the Case

             This is a summary judgment case involving multiple questions related to application

of a statute of limitation, of owner-and-holder status as to a first lien mortgage note, contract


P ETITIO N   FO R   R EV IEW                         5
and tort questions. Respondent was improvidently granted summary judgment, despite the

absence of consistent, non-contradictory summary judgment evidence, and in direct contravention

of controlling authority in this jurisdiction; and thereafter authorized a nonjudicial foreclosure

as a remedy for a claim for judicial foreclosure, contrary to the exclusive method for judicial

foreclosures set out in the Texas Rules of Civil Procedure. In their Responses to Respondent’s

Motions for Summary Judgment and in their Motion for New Trial, your Petitioners advised

the District Court of the multiple and critical defects in the summary judgment motions of

Respondent, and of the applicable statute of limitation that precluded the relief Respondent

sought.




                                     Statement of Jurisdiction

             The Supreme Court of Texas has jurisdiction over this appeal under Texas Government

Code §§22.001(a)(2), 22.001(a)(3) and/or 22.001(a)(6).




                                          Issues Presented

ISSUE NUMBER 1. The trial court erred in rendering judgment for Respondent, because

             there was not evidence before the Court to prove ownership of the note and lien(s)

             in Respondent.




ISSUE NUMBER 2. The trial court erred in granting summary judgment, because doing



P ETITIO N   FO R   R EV IEW                      6
             so was inconsistent with governing law.




ISSUE NUMBER 3. The trial court erred in granting summary judgment, because doing

             so was barred by limitation.




ISSUE NUMBER 4. The trial court erred in granting summary judgment on Petitioners’

             liability claim, because such grant was directly contrary to controlling precedent.




                                           Statement of Facts

             The Petitioners filed their original petition, subsequently amended, in the District Court

of Collin County, Texas, seeking relief against Respondent for trespass and conversion in the

entering of Petitioners’ dwelling without legal excuse and removing of certain valuable personal

property of Petitioners, and asserting other debt collection claims related to the wrongful servicing

and attempted foreclosure of Respondent’s claimed lien on Petitioners’ homestead. Respondent

counterclaimed seeking a judicial foreclosure of its claimed lien on the homestead. The 416 th

District Court of Collin County entered summary judgment against Petitioners on the claims

for trespass, conversion and wrongful collection practices on December 18, 2007, followed

by summary judgment for Respondent on its foreclosure counterclaim on February 19, 2008.

Thereafter, the trial court entered a final judgment on April 8, 2008 authorizing Respondent

to conduct a non-judicial foreclosure of its claimed lien. Petitioners filed a Motion for New



P ETITIO N   FO R   R EV IEW                         7
Trial on May 8, 2008, which was overruled by operation of law as of June 23, 2008. Appeal

was taken July 3, 2008 to the Fifth District Court of Appeals, which held on June 7, 2010 that

the matter should be remanded to the District Court for entry of a judgment ordering a sherrif’s

sale instead of a non-judicial trustee’s sale, but otherwise affirming the judgment.




                                    Summary of the Argument

             Summary judgment was improvidently granted by the District Court, and the Court

of Appeals should have held, consistent with its own precedent and applicable precedent from

this Court, that Petitioners were to be allowed to proceed with their claims. There was a glaring

gap in indorsement of the mortgage Note at issue, and hence Respondent EMC was not entitled

to judgment as an owner and holder of such Note, for since EMC didn’t own and hold at the

end of a clear, complete chain, it could not have been the owner and holder of any associated

lien to be enforced.




                                     Argument and Authorities

ISSUE NUMBER 1. The trial court erred in rendering judgment for Respondent, because

             there was not evidence before the Court to prove ownership of the note and lien(s)

             in Respondent.

             A lien can only secure a valid and subsisting indebtedness, which must be evidenced

by an appropriate promissory note, suitably shown to in fact be owned or held by the moving



P ETITIO N   FO R   R EV IEW                      8
party. When there is reasonable doubt as to the provenance of the different versions of the

claimed Note, which varying versions have been tendered to the District Court by EMC, it

is reasonable that this case be remanded to the District Court for a new trial, where the trier

of fact can sort out the conflicting claims of EMC’s purported original note and its affiant(s),

with respect to the Note. The summary judgment granted to Respondent EMC, on February

19, 2008 and the subsequent final judgment of April 8, 2008 should be vacated and this cause

remanded to the trial court for a new trial and further proceedings.

             Normally, a recovery predicated on a promissory note requires proof that (a) the note

was executed by a maker (in this case, the appellants), (b) the claimant (in this case, appellee)

is the holder of that note, and (c) the note is introduced into evidence. Cadle Co. v. Bankston

& Lobingier, 868 S.W.2d 918, 921 (Tex.App. --- Fort Worth, 1994). It is settled Texas law

that proof of owner or holder status of a promissory note is fundamental to recovery related

to such note. The best evidence of the Note is the Note itself, including a complete chain of

indorsements and allonges showing that ownership was assigned to the plaintiff. Respondent

EMC attempted to offer varying versions of the Note as genuine as of the time of their being

offered to the trial court for purposes of summary judgment. Whether Respondent EMC actually

owns the Note as it alleges, and whether it owned it at the first time it alleges it did in this suit,

should be resolved by the trier of fact at trial, as appellants requested.

             It plainly appeared from the original Note produced to the District Court that there was

an incomplete chain of indorsement of the Note, and it further appeared from the evidence



P ETITIO N   FO R   R EV IEW                        9
available at the time of granting of summary judgment that there an assignment of lien had

been executed in blank years before it was filled in and filed of record, and that such would

have been impermissible under applicable Texas law because the parties to such assignment

could not have formed a uniform common intention as to the completion of the blank assignment.




ISSUE NUMBER 2. The trial court erred in granting summary judgment, because doing

             so was inconsistent with governing law.

             The Court of Appeals erred in overruling Petitioners’/Appellants’ Points of Error 1,

2 and 3, because summary judgment should not be granted, or upheld, where credibility of

a witness is very “likely to be a dispositive factor in the resolution of the case . . .” Casso v.

Brand, 776 S.W. 2d 551, 558 (Tex. 1989). The proffering of “inconsistent or conflicting summary

judgment proof” likewise creates a fact issue, hence summary judgment is inappropriate.

Thompson v. City of Corsicana Housing Authority, 57 S.W.3d, 557-558 (Tex.App.–Waco,

2001). The Court of Appeals’ holding in the instant case does not appear to be compatible

with the holding of Davis v. City of Grapevine, 188 S.W.3d 748, 755-756 (Tex.App.–Fort

Worth, 2006) or FFP Mktng. Co., Inc. V. Long Lane Master Trust IV, 169 S.W.3d 402

(Tex.App.–FortWorth 2005, no pet.).

             The inconsistency, and hence credibility issues of the Durham affidavit, given the copy

of the promissory note attached to his affidavit and its variance with the original note produced

to the District Court, should have precluded summary judgment. The bare fact that the copy



P ETITIO N   FO R   R EV IEW                       10
of the note attached to the Durham affidavit is sworn to be a true copy of the genuine original

note, when the note as produced to the District Court plainly belies that claim, should call into

question the credibility of the entire affidavit since the note is at the heart of the dispute. Durham

vouched for the authenticity of what plainly could not have been what he swore it was; his

copy of the note was at best a well-aged copy, not the original at the time of the making of

his affidavit, or the indorsement to Respondent EMC would have had to have been made and

completed after his swearing, which would reward conduct at best deceptive and at worst

fraudulent. And even the copy for which the affiant vouched had a glaring gap in the chain

of indorsement, which should have precluded finding that EMC was in fact the owner and

holder. There is no reasonable explanation for Durham’s statement that the copy of the note

attached to his affidavit was of the authentic original that reflects well on the credibility of

that statement, or the credibility of his affidavit as a whole. Therefore, the Durham affidavit

should be weighed together with and against the original note produced in open court, and

their in inconsistencies should be seen as precluding summary judgment. Whitaker v. Huffaker,

790 S.W.2d 761, 763 (Tex.App.— El Paso, 1990), citing McCurry v. Aetna Casualty and Surety

Company, 742 S.W.2d 863, 867 (Tex.App. — Corpus Christi 1987, writ denied). Upon such

production, it is evident (as it already is from the record) that there is an incomplete chain of

indorsements of the note, hence Respondent EMC cannot be a true owner and holder entitled

to relief.




P ETITIO N   FO R   R EV IEW                     11
ISSUE NUMBER 3. The trial court erred in granting summary judgment, because doing

             so was barred by limitation.

             The Court of Appeals erred in overruling Petitioners’/Appellants’ Points of Error 5

and 8, because the self-operative character of T EX. C IV. P RAC.& R EM. C ODE A NN. §16.035(d).

Hollingsworth v. Hollingsworth, 274 S.W.3d 811, 814-815 (Tex.App.–Dallas 2008, no pet.),

cited by the Court, and cases citing to it, involve limitation statutes that involve requirements

to bring suit on certain types of claims within stated periods, but not with the uniquely self-

operative §16.035(d), which latter subsection provides that in the specified events, the lien

is void without any action on the part of the debtors (such as Petitioners/Appellants), either

affirmatively or defensively. The limitation bar was plain, it was pointed out to the District

Court, and it should preclude relief for Respondent now.




ISSUE NUMBER 4. The trial court erred in granting summary judgment on Petitioners’

             liability claim, because such grant was directly contrary to controlling precedent.

             The Court of Appeals’ holding denying Petitioners the ability to go forward with their

tort liability claim against Respondent EMC is inconsistent with such court’s own precedent,

and with holdings of other courts of appeal. The decision of the Court of Appeals in the instant

case, when set alongside EMC Mortgage Corp. v. Jones, 252 S.W.3d 857 (Tex.App.–Dallas

2008) creates an absurdly variant result. The same Fifth Court of appeals noted, in Jones:

             EMC correctly asserts that the mere declarations of an alleged agent do not
             establish an agency relationship. EMC testified, however, that it contracts with

P ETITIO N   FO R   R EV IEW                       12
             third parties to handle the eviction process. It is undisputed that the law firm
             handling the foreclosure acted on behalf of EMC, as did the law firm that sent
             the eviction letter. EMC did not present evidence that the very large man did
             not exist, or that the man was not acting on its behalf. There was no evidence
             disputing Jones' testimony that the man actually appeared at the Jones residence.
             The EMC representative only testified that there was nothing written in EMC's
             records "showing that that person representing EMC appeared at the Jones'
             property."

Jones, at 870. The Court of Appeals therefore had to be aware that EMC engages independent

contractors to seek removal of persons from properties where foreclosure is an issue, and while

EMC did not go to the evidentiary lengths in Jones that it did in the instant case, the central

facts are transparently the same: EMC’s contractor in each case barged into a home and sought

to create as much havoc and fear as possible. EMC should no more be able to escape liability

for the actions of its contractor in the instant case than it was allowed to in Jones. In the instant

case, as in Jones, and as in Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998) which

Jones cited, Respondent EMC clearly induced the intruder(s) to enter another’s premises and

ratified the conduct; in the instant case EMC has sought to disclaim any ratification of the

conduct while continuing to receive the benefit of the actions of the intruding contractor who

plainly went into the premises at EMC’s instance. To reverse the holding of the Court of Appeals

in the instant case would be consistent with this Court’s precedent that was cited by the Fifth

Court in Jones.




                                                 Prayer

             There can reasonably have been no waiver of claims in the assertion of the gaps in

P ETITIO N   FO R   R EV IEW                        13
indorsement and/or assignment of the note and lien(s), for such issues were raised before the

trial court in a timely manner and in multiple forms. It was made plain to the District Court

that there was a clear gap in the chain of claimed ownership of the Note, and hence there should

have been no grant of summary judgment. For the reasons stated above, this Court should

reverse and render judgment for Petitioners that the District Court of Collin County improvidently

granted, and the Court of Appeals affirmed in contravention of applicable Texas statutes and

rules of procedure, summary judgment for Respondent. In the alternative, Petitioners pray

that this Court reverse the judgment of the District Court and render judgment; or reverse and

remand this case for further proceedings consistent with this Court’s opinion. Petitioners further

request that all costs of this appeal be taxed against Respondent.




                                                    Respectfully submitted,




                                                    /s/ Michael Brinkley
                                                    ________________________________________
                                                    Michael Brinkley
                                                    State Bar No. 03004300
                                                    B RINKLEY L AW PLLC
                                                    P. O. Box 820711
                                                    Fort Worth, Texas 76182-0711
                                                    (817) 284-3535; fax (888) 388-6031
                                                    m@michaelbrinkley.com
                                                    Attorney for Petitioners




P ETITIO N   FO R   R EV IEW                   14
Certificate of Service. I certify that a true and correct copy of the foregoing has been served
on the following counsel and/or pro se parties of record, by mailing in accordance with Texas
Rule of Appellate Procedure 9.5, on the date shown.

William G. Compton
A NDREWS K URTH LLP
1717 Main, Suite 3700
Dallas, Texas 75201
voice (214) (214) 659-4478; fax (214) 659-4401

Dated: February 14, 2011.


                                                   /s/ Michael Brinkley
                                                   _______________________________________
                                                   Michael Brinkley




P ETITIO N   FO R   R EV IEW                  15
                               APPENDIX 1




P ETITIO N   FO R   R EV IEW       16
                                   Qtourtof Appeats
                        lJiift4 ilistrirt of wexas at ilallas
                                       JUDGMENT

LAURA M. BROWN AND ROBERT L.                        Appeal from the 416th Judicial District Court
BROWN, Appellants                                   of Collin County, Texas. (Tr.Ct.No. 416-
                                                    00035-05).
No.05-08-00914-CV            V.                     Opinion delivered by Justice Morris,
                                                    Justices FitzGerald and Francis
EMC MORTGAGE CORPORATION,                           participating.
Appellee

        In accordance with this Court's opinion of this date, the judgment of the trial court is
REVERSED AND REMANDED IN PART and AFFIRMED IN PART. We REVERSE the trial
court's order authorizing the public sale of appellants' property by EMC Mortgage Corporation and
REMAND the cause for entry of a judgment and order of sale in compliance with Rule 309 of the
Texas Rules of Civil Procedure. We AFFIRM the trial court's judgment in all other respects. It
is ORDERED that each party bear its own costs of this appeal.


Judgment entered June 7, 2010.
REVERSE and REMAND in part, AFFIRM in part; Opinion issued June 7, 2010




                                                In The
                                    C!tourt of Appeals
                          lJiifU, IDistrict of wexas at IDaHas
                                        No.05-08-00914-CV


                 LAURA M. BROWN AND ROBERT L. BROWN, Appellants

                                                  V.
                        EMC MORTGAGE CORPORATION,                   Appellee


                        On Appeal from the 4161h Judicial District Court
                                     Collin County, Texas
                             Trial Court Cause No. 416-00035-05


                                            OPINION
                           Before Justices Morris, FitzGerald, and Francis
                                     Opinion By Justice Morris

       This is an appeal from a summary judgment foreclosing a mortgage lien and an order

authorizing the sale of real property. Laura M. Brown and Robert L. Brown assert eight points of

error contending the trial court erred in granting EMC Mortgage Corporation's two motions for

summary judgment and ordering the sale of their property by EMC to satisfy its lien. We conclude

the trial court properly granted summary judgment in favor of EMC but erred in the form of relief it

granted. Accordingly, we reverse the trial court's order authorizing the sale of the Browns' property

by EMC and remand the cause for rendition ofajudgment and order of sale granting the proper relief.

We affirm the trial court's judgment in all other respects.
                                                                       I.

           The Browns filed this suit In 2005 against vanous parties including Aames Funding

Corporation d/b/a Aames Home Loan. In their original petition, the Browns sought injunctive relief

to prevent foreclosure on their home. The Browns amended their petition a year later to join EMC

as a party and add claims for trespass, conversion, and violations of the Texas Fair Debt Collection

Practices Act. The Browns asserted that their loan with Aames Home Loan was assigned to EMC in

July 2005 and that an agent ofEMC unlawfully entered the property while it was vacant and engaged

in various malicious acts including ransacking the interior of the residence and stealing mortgage and

property-related documents.' EMC filed an answer and brought a counterclaim for foreclosure and

damages.

           EMC filed a traditional motion for summary judgment on the Browns' claims contending the

acts complained of were not committed by an agent ofEMC. EMC argued that it had no control over

the person who committed the alleged acts of trespass, conversion, and unfair debt collection and,

therefore, the company could not be held liable for the claimed damages. The trial court agreed with

EMC, granted its motion, and ordered that the Browns take nothing by their claims against EMC.

           EMC next filed a motion for summary judgment on its counterclaim for foreclosure and

damages. EMC argued the uncontroverted evidence showed the Browns were in default on a note

of which EMC was the owner and holder. EMC also stated that the evidence showed the debt had

been declared due and payable and foreclosure was authorized by the note, deed of trust, and

applicable law.

           The Browns responded that EMC was not entitled to summary judgment because it failed to




     , Accredited Home Lenders, Inc. as successor in interest to Aames Funding Corporation d/b/a Aames Home Loan filed a motion for summary
judgment on all claims asserted by the Browns against Aames Home Loan. The trial court granted the motion and ordered that Accredited be severed
as a party from the su it.




                                                                     -2-
produce the original note as required by local rules of court. The copy of the note in the summary

judgment evidence did not name the assignee on the "Endorsement and Assignment of Note" page

and, therefore, did not show that EMC was the owner and holder. In the affidavit accompanying the

note, however, Steven Durham, a default analyst for EMC, testified that EMC had purchased the note

and was the note's legal owner and holder.

        In response to the Browns' arguments, EMC produced the original note to the trial court and

the Browns for inspection. The court instructed that a copy of the original note be placed in the

record. The copy of the original note in the record contains an "Endorsement and Assignment of

Note" page on which EMC is named as the assignee of the note and deed of trust.

       On February 19,2008, the trial court signed a memorandum order granting EMC's motion for

summary judgment on its counterclaim. Approximately two months later, the trial court signed an

order authorizing EMC to sell the Browns' property at public auction pursuant to section 51.002 of

the Texas Property Code. The Browns then filed a motion for new trial reasserting their challenge

to the evidence of assignment of the note. The Browns also argued, for the first time, that EMC's

enforcement of the lien was barred by the statute of limitations.   Finally, the Browns argued that

summary judgment on the claims against EMC was contrary to governing precedent. The motion for

new trial was overruled by operation of law, and the Browns brought this appeal.

                                                 II.

       In their first three points of error, the Browns contend that EMC's summary judgment

evidence is insufficient to prove its ownership of the note and liens at issue. The Browns argue that

the "varying versions" of the note contained in the summary judgment record render the evidence

internally contradictory, inconsistent, and unreliable. The Browns point to the fact that the version

of the note sworn to by Steven Durham as being a "true and correct copy" is blank in the space

intended for the name of the assignee on the endorsement and assignment page. The original note



                                                ~3~
later tendered   to the court by EMC,          however,    bears   the stamp    HEMC MORTGAGE

CORPORA TION" in the space following the assignment language. The Browns make no argument

and point to no evidence of any fraud in connection with the original note produced by EMC. The

Browns argue, however, that the inconsistencies between Durham's affidavit and the documentary

evidence create an unresolved material fact issue requiring reversal of the summary judgment.

        The Browns rely on one case in particular to support their position. See FFP Mktg. Co., Inc.

v. Long Lane Master Trust IV, 169 S.W.3d 402 (Tex. App=-Fort Worth 2005, no pet.). In FFP, the

court reversed a summary judgment because the affidavit testimony directly contradicted the attached

summary judgment evidence. !d. at 410. The affiant in FFP testified that the appellees were the

holders and beneficial owners of the notes and guaranties at issue. Id. The loan documents attached

to the affidavit, however, showed the appellees were assigned legal ownership of the notes and

guaranties. Id. The court held that because legal ownership had to be proved to enforce the note, the

inconsistency between the affidavit testimony and the attached documents created a genuine issue of

material fact precluding summary judgment. [d. at 411.

        Unlike the facts in FFP, in this case there is no inconsistency between the summary judgment

affidavit and the attached documents that creates a genuine issue of material fact about ownership of

the note. Durham testified in his affidavit that, in May 2005, EMC purchased and became the legal

owner and holder of the promissory note secured by a deed of trust lien against the subject property.

The attached copy of the note shows that the note was assigned without recourse but does not name

the party to whom it was assigned. Although the note does not affirmatively show it was assigned

to EMC, neither does it contradict Durham's testimony that it was.

       Any inconsistency in the evidence arises by virtue of Durham's testimony that the incomplete

copy of the note attached to his affidavit is a "true and correct copy" of the note. The Browns contend

this alone renders Durham's testimony suspect and requires a jury to determine his credibility. The



                                                 -4-
only difference between the copy of the note attached to Durham's affidavit and the original note

tendered to the court is the stamp "EMC MORTGAGE CORPORATION" in the space provided to

name the assignee.               This "inconsistency"             could raise an evidentiary question about Durham's

credibility if there were a genuine dispute about whether the note was assigned to EMC. But we note

that it was the Browns who added EMC as a party to this suit. In so doing, the Browns asserted in

their petition that "[i]n or about July 2005, Plaintiffs' loan with Ames [sic] Home Loan was assigned

to Defendant EMC." The Browns further asserted that EMC committed various wrongful acts "in

seeking collection on its mortgage loan." As stated above, there is no evidence of any fraud in

connection with the original note produced by EMC that shows its assignment to EMC. In light of

the evidence proving the assignment and the Browns' pleadings, there is no material fact issue about

the note's ownership.' On the record before us, Durham's testimony does not create a genuine issue

of material fact. We resolve the Browns' first three points of error against them.

           In their fourth point of error, the Browns contend the trial court erred in granting summary

judgment in favor of EMC on their claims for trespass, conversion, and unfair debt collection

practices because the ruling is contrary to controlling authority from this Court. The trial court

granted summary judgment for EMC on the ground that the acts complained of by the Browns were

committed by an independent contractor over which EMC had no control and, therefore, the company

could not be held liable for the man's actions as a matter of law. The Browns argue this holding

conflicts with our opinion inEMC Mortgage Corp. v. Jones. See EMC Mortgage Corp. v. Jones, 252

S.W.3d 857 (Tex. App.-Dallas 2008, no pet.).

           In Jones, we held there was sufficient evidence for a jury to infer that a man who entered the




     2 The Browns argue for the first time in their reply brief that "there is a fatal gap in the chain of indorsements on the note" because EMC did
not "prove the transactions between Bankers Trust and Aarnes." A reply brief may not be used to raise new issues, and this argument will not be
considered. See Dallas County v. Gonzales, 183 S.W.3d 94, 104 (Tex. App.--Dallas 2006, pet. denied).




                                                                       -5-
not addressed in Jones. Based on the foregoing, we conclude Jones is not controlling in this case.

We overrule the Browns' fourth point of error.

        In their fifth and eighth points of error, the Browns contend the trial court erred in granting

summary judgment in favor of EMC on its claim for foreclosure because the claim is barred by the

applicable statute oflimitations. See TEX.CIv.PRAC.&REM. CODEANN.§ 16.035(a) (Vernon 2002).

Under section 16.035 of the Texas Civil Practice and Remedies Code, a suit to foreclose on a lien

must be brought within four years of the date the cause of action accrues or the lien becomes void.

[d. § 16.035(d). According to the Browns, they received their first notice of acceleration of the debt

from Aarnes Home Loan in July 2000, more than four years before EMC filed its counterclaim to

foreclose. The Browns argue that, because the cause of action accrued more than four years before

EMC brought its counterclaim, the lien is void and the summary judgment must be reversed.

        Limitations is an affirmative defense that is waived if not pleaded. See Hollingsworth v.

Hollingsworth, 274 S.W.3d 811,814-15 (Tex. App.-Dallas 2008, no pet.). In this case, the Browns

filed only a general denial to EMC's counterclaim for foreclosure and damages. In addition, there was

no mention of the statute oflimitations in the summary judgment pleadings. The Browns first raised

the limitations issue in their motion for new trial. The failure to assert a statute oflimitations defense

until a motion for new trial waives the defense. [d. at 815. The Browns attempt to avoid waiver by

arguing that EMC' s failure to bring suit within the limitations period is "jurisdictional" and therefore

not subject to waiver. They provide no argument or authority to support this assertion, however, and

we have found none. We overrule the Browns' fifth and eighth points of error.

        In their sixth point of error, the Browns contend the trial court erred in ordering their property

be sold by EMC at public auction because this relief is inconsistent with the exclusive means of

carrying out a judicial foreclosure of a mortgage lien. The Browns rely on Rule 309 of the Texas

Rules of Civil Procedure which states that




                                                  -7-
plaintiffs' home and engaged in unreasonable debt collection practices was an agent ofEMC. Id. at

870. The evidence in Jones included a statement by the man to the plaintiffs that he "was there on

behalf ofEMC." !d. In addition, the man showed up at the house the day before the plaintiffs were

sent an eviction letter from the law firm acting on behalf of EMC. Id. EMC presented no evidence

to show the man at issue was not acting on its behalf and stated only that it had no record of a person

representing EMC going to the property. Id.

       The Browns assert the only difference between the facts in Jones and those presented in this

case is that the plaintiffs in Jones were present at the time EMC's alleged agent entered the home.

Contrary to the Browns' argument, however, there are many other significant differences between

Jones and this case, both in the facts presented and the issues addressed. The summary judgment

evidence here includes the testimony of the man the Browns allege acted as EMC's agent, Jeff

Watson. Watson testified he was hired by Rich Co. Property Services to "determine the status" of the

Browns' home and secure and winterize the house ifhe found it was vacant. Although Watson was

aware that EMC was "involved in the matter," he stated this fact made no difference to his work and

he received no instructions on how to do his job from EMC. EMC also presented the testimony of

Brenda Ward, a Default Operations Assistant Manager for EMC. She testified EMC hired National

Field Representatives to secure and winterize the Browns property. Unknown to EMC, NFR then

hired Rich Co. Property Services to perform the work, and Rich Co. sent Watson. Ward testified

EMC did not provide any of the tools, supplies, or materials for winterizing the property and did not

provide any instructions to Rich Co. or Watson on how to do the work. Furthermore, Ward stated

EMC did not know of the existence of Rich Co. or Watson at the time Watson performed the work

on the Browns' home. This evidence supports EMC's contention that Watson functioned as an

independent contractor over whom the company had no control and for whose actions the company

could not be held liable. The issue ofliability for work performed by an independent contractor was



                                                 -6-
                Judgments for the foreclosure of mortgages and other liens shall be
                that the plaintiff recover his debt, damages and costs, with a
                foreclosure of the plaintiff's lien on the property subject thereto, and,
                except in judgments against executors, administrators and guardians,
                that an order of sale shall issue to any sheriff or any constable within
                the state of Texas, directing him to seize and sell the same as under
                execution, in satisfaction of the judgment.

TEX.R. CIv. P. 309. It is undisputed that the judgment of foreclosure in this case was not against an

executor, administrator, or guardian. Thus, rule 309 requires the order of sale "issue to any sheriff

or any constable." Instead, the trial court's order authorizes EMC to sell the property at public auction

to the highest bidder.

        EMC argues that, because the order authorizing the sale of the property in this case is not a

judgmentper se, rule 309 does not apply. Rule 309 specifically states what type of order of sale must

issue in a suit to foreclose a mortgage lien. If we were to accept EMC's argument, rule 309 could be

avoided entirely by simply failing to mention the order of sale in the final judgment and issuing a

separate order not complying with the rule.

        EMC also argues that the trial court's order of sale is consistent with Texas law because it

meets the requirements of chapter 51 of the Texas Property Code. Chapter 51 governs the specific

methods of sale for foreclosures ofliens and addresses deficiencies in both judicial and non-judicial

foreclosures. TEX.PROP.CODEANN. § 51.0001 et seq., (Vernon 2007). According to EMC, rule 309

is an anachronism that does not fit into the statutory scheme created by chapter 51. EMC asks us to

ignore rule 309's requirement that the property be sold by a sheriff or constable because this

requirement is not also present in chapter 51. We decline to do so.

       The requirement that the sale of the property in ajudicial foreclosure be conducted by a sheriff

or constable is clear, unambiguous, and does not conflict with any provision of chapter 51. Indeed,

chapter 51 distinguishes between foreclosure sales conducted under the chapter and those conducted

under a court judgment foreclosing the lien. See id. § 51.005(a)(2). Because nothing in chapter 51




                                                  -8-
conflicts     with rule 309, we must assume that the legislature          intended    for judicial     foreclosures    to

continue      to be conducted     by sheriffs    or constables      even after the enactment          of chapter      51.

Accordingly,      the order of sale in this case is not in compliance      with Texas law.

            Finally, EMC argues the Browns have not shown reversible            error because they cannot show

they were prejudiced       by the order authorizing   the company to sell the property.          EMC contends the

result of the sale would be the same regardless       of who conducts it and, therefore,         the Browns cannot

show they were harmed.          We disagree.

            Reversible   error is shown when the trial court makes an error oflaw that probably causes the

rendition of an improper judgment,        See TEX. R. Apr. P. 44.1. In this case, the trial court's error was

the rendition of an improper judgment under rule 309 of the rules of civil procedure.                       EMC was

granted relief to which it was not entitled.     This alone is sufficient to show harmful error. We sustain

the Browns'       sixth point of error.     Because   of our resolution      of the sixth point of error, it is

unnecessary      for us to address the Browns'    seventh point of error.

            We reverse the trial court's order authorizing      the public sale ofthe Brown's        property by EMC

and remand the cause for rendition of a judgment          and order of sale in compliance       with rule 309 of the

Texas Rules of Civil Procedure.        We affirm the trial court's judgment          in all other respects.



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080914F.P05




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