This is an appeal from an independent suit brought to challenge the expedited foreclosure of a home-equity loan pursuant to Texas Rule of Civil Procedure 736. Pursuant to this rule, the beneficiary of the security instrument obtained a court order authorizing it and its “successors and assigns” to foreclose, then assigned the security instrument to another, who foreclosed. Ramesh Kapur, the title-owner of record at the time of foreclosure, sued the assignee, the loan servicer, and the property’s purchaser to quiet title and for declaratory relief. The trial court granted summary judgment in favor of the assignee and the loan servicer, denied Kapur’s cross-motion for summary judgment, and dismissed his claims with prejudice. We affirm the trial court’s judgment. I. EXPEDITED FORECLOSURE OF HOME-EQUITY LOANS To understand the issues in this appeal, it is helpful to begin with an overview of the law concerning expedited foreclosure of home-equity loans. Under the Texas Constitution, a homestead is protected from forced sale except for certain debts, which include “an extension of credit that . . . is secured by a lien that may be foreclosed upon only by a court order.” TEX. CONST. art. XVI, § 50(a)(6)(D). The same section of the Texas Constitution required the Supreme Court of Texas to “promulgate rules of civil procedure for expedited foreclosure proceedings related to the foreclosure” of such liens. Id. § 50(r). Texas Rule of Civil Procedure 736governs expedited foreclosure roceedings of home-equity loans. See TEX.R.CIV.P. 735.1(a). A petitioner, which can be “any person legally authorized to prosecute the foreclosure,” institutes the proceeding by filing an application for an expedited order of foreclosure. TEX. R. CIV. P. 736.1(d)(1)(A). The “respondents” include each mortgagor and each person whom the records of the noteholder or loan servicer show to be obligated to pay the loan. TEX. R. CIV. P. 736.1(d)(1)(B). A respondent may file a response, but there are no counterclaims, cross-claims, or interventions. TEX.R.CIV. P. 736.5(d). No cause of action may be filed in the expedited-foreclosure proceeding by any person. Id. If no response is timely filed, the petitioner may move for a default order, and all facts alleged in the application and the petitioner’s affidavit of material facts will constitute prima facie evidence of the truth of the matters alleged. TEX. R. CIV. P. 736.7(a). If the petitioner establishes the basis for the foreclosure, the court must issue an order granting the application. TEX. R. CIV. P. 736.8(a). “After an order is obtained, a person may proceed with the foreclosure process under applicable law and the terms of the lien sought to be foreclosed.” TEX.R.CIV. P. 736.9. A Rule 736 order is not a judgment, and the grant or denial of the application is not subject to a motion for rehearing, a motion for new trial, a bill of review, or an appeal. TEX.R.CIV. P. 736.8(c). It is without prejudice and has no res judicata or other such effect in any other judicial proceeding. TEX. R. CIV. P. 736.9. It can be challenged only through an independent original proceeding filed in a court of competent jurisdiction. TEX.R.CIV. P. 736.8(c). This is an appeal from such an independent original proceeding challenging a Rule 736 order for expedited foreclosure. II. NOMENCLATURE The facts in this case are undisputed, but the arguments we must discuss turn on the distinction between U.S. Bank National Association (USBNA) in two different capacities with similarly unwieldy names. In the first capacity, USBNA is the indenture trustee for the holders of the CIM Trust 2017-3, Mortgage-Backed Notes, Series 2017-3. We will refer to USBNA in this capacity as “the 2017 Trustee.” In the second capacity, USBNA is the indenture trustee for the holders of the CIM Trust 2021-NR2, Mortgage-Backed Notes, Series 2021-NR2. We will refer to USBNA in this capacity as “the 2021 Trustee.” III. BACKGROUND Carol Gafford took out a home-equity loan secured by a lien on her condominium (the Property). The condominium owners’ association foreclosed on the Property, and Ramesh Kapur d/b/a AIC Management Company bought the Property at the foreclosure sale. After becoming the beneficiary of the security instrument securing the home-equity loan, the 2017 Trustee successfully sued Kapur for a declaration that it held a valid lien on the Property. The home-equity loan was in default, so the 2017 Trustee next applied to the 125th District Court for an expedited order of foreclosure pursuant to Texas Rule of Civil Procedure 736, naming Gafford as the respondent. To differentiate it from the trial court in this action, we refer to the 125th District Court as the “Foreclosure Court.” The 2017 Trustee successfully moved for default judgment, and the Foreclosure Court signed an order (the Rule 736 Order) authorizing the 2017 Trustee, “its successors[,] and assigns” to proceed with foreclosure. Four days after the Foreclosure Court signed the order, the 2017 Trustee assigned its interest in the Property’s security instrument “and the full benefit of all the powers and of all the covenants and provisos therein contained” to the 2021 Trustee. The 2021 Trustee proceeded with the foreclosure sale, at which HREAL Company, LLC, bought the Property. Some months later, Kapur sued the 2021 Trustee, the loan servicer Select Portfolio Servicing, Inc. (Select), and HREAL. Kapur challenged the Rule 736 Order, asking the trial court to quiet title and to declare the foreclosure sale to HREAL void. The 2021 Trustee and Select moved jointly for no-evidence and traditional summary judgment on Kapur’s claims. HREAL adopted its co-defendants’ motion, and Kapur filed a cross-motion for traditional summary judgment. The trial court granted the defendants’ motion, denied Kapur’s motion, and dismissed all of Kapur’s claims with prejudice. The trial court denied Kapur’s motion for new trial, and Kapur brought this appeal. IV. ISSUES PRESENTED Kapur presents nine issues for review. First, he contends that a no-evidence motion for summary judgment is improper where, as here, the facts are undisputed and the case turns on purely legal issues. If such a motion is proper, Kapur contends he produced sufficient evidence to defeat summary judgment on hisquiet-title claim. In his second through seventh issues, Kapur presents variations on his argument that the 2021 Trustee had to file its own application for a Rule 736 order and could not rely on the order issued to the 2017 Trustee. In his eighth issue, Kapur challenges the denial of his claim for declaratory relief, and in his ninth, Kapur asks that, if we reverse and render judgment in his favor, we remand his claim for attorney’s fees. Because the issues presented arise from cross-motions for summary judgment raising questions of law based on undisputed facts, we determine all issues under a de novo standard of review and render the judgment the trial court should have rendered. Finley Res., Inc. v. Headington Royalty, Inc., 672 S.W.3d 332, 338 (Tex. 2023). V. VALIDITY OF THE FORECLOSURE SALE To prevail in a suit to quiet title or to remove a cloud from title, the plaintiff must prove that (1) the plaintiff has an interest in a specific property; (2) a claim by the defendant affects title to the property; and (3) the defendant’s claim, though facially valid, is invalid or unenforceable. Montenegro v. Ocwen Loan Servicing, LLC, 419S.W.3d561, 572(Tex. App.—Amarillo2013, pet. denied). The defendants moved for (a) no-evidence summary judgment on the ground that there is no evidence of the third element, that is, there is no evidence invalidating the sale; and (b) traditional summary judgment on the ground that the recitals in the deed to HREAL are prima facie evidence that the sale was valid. See Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983). When a successful movant sought both no-evidence and traditional summary judgment, and the record does not reveal the grounds on which the trial court may have granted judgment, we ordinarily review the no-evidence grounds first. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). But, because Kapur disputes in his first issue whether a no-evidence motion for summary judgment is the proper vehicle to resolve a question of law based on undisputed facts, it is more efficient to set aside that question and analyze the traditional summary-judgment grounds. All of Kapur’s remaining issues ultimately rest on his contention that the foreclosure sale is void because the only person who can foreclose under a Rule 736 order is the petitioner named in the application and in the order.[1] In support of his position, Kapur cites the Texas Constitution, Rule 736, and a single case from the Second Court of Appeals. But none of these sources support that result. We instead conclude that after the 2017 Trustee obtained the Rule 736 Order authorizing it to exercise the power of sale under the security instrument, the assignment of the security instrument carried with it the authority to foreclose. In reaching this conclusion, we do not rely on the “successors and assigns” language of the Rule 736 Order, but on the nature of an assignment. “An assignee stands in the shoes of his assignor.” Jackson v. Thweatt, 883 S.W.2d 171, 174 (Tex. 1994) (quoting FDIC v. Bledsoe, 989 F.2d 805, 810 (5th Cir. 1993) (cleaned up). The assignee can assert those rights that the assignor could assert. See Gulf Ins. Co. v. Burns Motors, Inc.,22 S.W.3d 417, 420 (Tex. 2000). Here, the security instrument gave the 2017 Trustee the power to sell the property, and the Rule 736 Order authorized the 2017 Trustee to exercise that power. Because an assignee “receives the full rights of the assignor,”[2] the 2021 Trustee received from the 2017 Trustee both the power and the authority to proceed with foreclosure. Kapur maintains that we must look to the assignment itself to determine its scope. The 2017 Trustee assigned its interest in the security instrument “and the full benefit of all the powers and of all the covenants and provisos therein contained” to the 2021 Trustee. The security instrument states that its covenants and agreements “shall bind and benefit the successors and assigns of Lender and Borrower.” This includes the covenant, which Kapur quotes in part, that the Lender “or Trustee, upon written request of Lender may, institute proceedings to foreclose the lien of this [security instrument] . . . by court order in accordance with the rules of civil procedure for expedited foreclosure proceedings . . . .” From this excerpt, Kapur reasons that the security instrument conveys to an assignee only the assignor’s right to “institute proceedings” under Rule 736. We agree that the security instrument conveys that right, but it conveys other rights as well. The quoted sentence goes on to say that, “to the extent such rules or a court order permit, Lender may invoke the power of sale. . . .” This provision, too, “binds and benefits” the Lender’s assigns. It follows that if, at the time of the assignment, an existing court order permitted the assignor to invoke the power of sale, then the assignment permits the assignee to invoke that power.[3] Stated differently, the assignment conveys to the assignee the assignor’s right to invoke the power of sale. The assignment conveyed that right to the 2021 Trustee regardless of whether the Rule 736 Order specifically authorized the 2017 Trustee’s “successors and assigns” to foreclose. A. Kapur’s Argument from the Texas Constitution Kapur cites two provisions of the Texas Constitution as support for his position, but neither purports to change the law concerning assignments. The first provision merely states that “[t]he homestead of a family, or of a single adult person, shall be, and is hereby protected from forced sale, for the payment of all debts except for . . . an extension of credit that . . . is secured by a lien that may be foreclosed upon only by a court order.” TEX. CONST. art. XVI, § 50(a)(6)(D). The second provision says only, “The supreme court shall promulgate rules of civil procedure for expedited foreclosure proceedings related to the foreclosure of liens under Subsection (a)(6) of this section . . . .” Id. art. XVI, § 50(r). Neither of these provisions discuss the parties to an expedited-foreclosure proceeding or identify the persons who can exercise rights under an order for expedited foreclosure. B. Kapur’s Arguments from Rule 736 The restrictions Kapur describes are also absent from Rule 736, which distinguishes between a “petitioner” and a “person.” A “person,” maybe a petitioner, a respondent, or neither. To illustrate, “[a]ny person legally authorized to prosecute the foreclosure” may be a petitioner, and the petitioner must be named in the application. See TEX. R. CIV. P. 736.1(d)(1)(A). In a proceeding to expedite foreclosure of a home-equity loan, Rule 736 states that a “respondent” is “each person” whom the noteholder’s or loan servicer’s records identify as obligated to pay the agreement, contract, or lien to be foreclosed, and each mortgagor. TEX. R. CIV. P. 736.1(d)(1)(B). But it is also possible for a “person,” as that word is used in Rule 736, to be neither a petitioner nor a respondent. For example, Rule 736 requires the court in which the application is filed to “strike and dismiss any counterclaim, cross claim, third party claim, intervention, or cause of action filed by any person in a Rule 736 proceeding.” And tellingly, Rule 736.9 provides, “After an order is obtained, a person may proceed with the foreclosure process under applicable law and the terms of the lien sought to be foreclosed.” TEX. R. CIV. P. 736.9 (emphasis added). If the Supreme Court of Texas meant that only the petitioner may proceed with the foreclosure, it knew how to say so, and presumably, it would have.[4] Kapur cites language from several other subsections of Rule 736 as supporting his conclusion that only the petitioner named in the application and in the court order are authorized to foreclose. For example, he notes that the petitioner’s application must include descriptions of the petitioner’s authority to foreclose and the specifics of the debtor’s default. TEX. R. CIV. P. 736.1(d)(3). But, these are preconditions to foreclosure that the petitioner must prove, regardless of whether the petitioner’s assignment of its powers under a security instrument carries with it the power to foreclose pursuant to an existing Rule 736 order. Kapur also points out that the application must include the conspicuous statement that “if the petitioner obtains a court order, the petitioner will proceed with a foreclosure of the property in accordance with applicable law and the terms of the loan agreement, contract, or lien sought to be foreclosed.” TEX. R. CIV. P. 736.1(d)(5)(B). But, the requirement that the petitioner must state this “conspicuously” demonstrates that this is a notice requirement about the purpose of the proceeding; notice of the actual foreclosure sale is governed by statute. See TEX. PROP. CODE § 51.002. Rule 736 says nothing about the effect of a petitioner’s post-order assignment of the security instrument and of the petitioner’s powers under it. C. Cases Addressing Rule 736 Foreclosures by Successors or Assignees Finally, Kapur cites a single case that he says supports his position that any entity wishing to foreclose a home-equity lien must obtain its own Rule 736 order. But the single case he cites does not address successors or assigns at all, while the three cases that do address this situation all upheld foreclosures by successors or assignees. Kapur relies on A Plus Investments, Inc. v. Rushton, No. 2-03-174-CV, 2004 WL 868866 (Tex. App.—Fort Worth Apr. 22, 2004, no pet.) (mem. op.). In that forcible-detainer case, the defendant borrowers had defaulted on a home-equity loan from Associates Financial Services Company of Texas, and Associates obtained a Rule 736 order authorizing expedited foreclosure. Id. at *2. “A Plus” bought the property at a foreclosure sale and sued to evict the borrowers. Id. The justice court ruled in favor of A Plus, but on appeal by trial de novo in the county court at law, the county court dismissed the case for want of jurisdiction. Id. A Plus’s evidence for possession had consisted only of the security instrument that secured the loan by Associates, the Rule 736 order authorizing Associates to foreclose, and the deed showing that A Plus bought the property at a foreclosure sale by CitiFinancial, Inc. Id. On further appeal, the Second Court of Appeals affirmed the dismissal, explaining, “There is no evidence in the record to support a link between Associates and CitiFinancial.” Id. Instead, a foreclosure order in favor of one entity and a foreclosure deed by a seemingly unrelated entity created a title dispute that had to be resolved before possession could be determined. Id. Because title disputes cannot be litigated in forcible-detainer actions, the case was properly dismissed for want of jurisdiction. Id. at *3. The case has no application here, because there is no missing link between the entity named in the Rule 736 Order and the entity that foreclosed on the Property. Instead, the uncontroverted evidence in this case establishes that the 2017 Trustee assigned its interest in the security instrument to the 2021 Trustee. No party disputes the fact of that assignment; the parties disagree only as to its effect. So far as we can determine, the only Texas courts to have considered the question have upheld foreclosure sales conducted on behalf of the assignee of the Rule 736 petitioner. In Spears v. Haynes, Wells Fargo obtained a Rule 736 order authorizing it to foreclose on Spears’s home-equity loan. No. 09-18-00147-CV, 2020 WL 238539, at *2–3 (Tex. App.—Beaumont Jan. 16, 2020, no pet.) (mem. op.). After obtaining the order, Wells Fargo “assigned its rights to Spears’s loan and in the judgment” to Bayview, and Bayview’s substitute trustee sold the property, which was then resold to Haynes. Id. at *2. The Ninth Court of Appeals held that the trial court properly granted summary judgment regarding ownership of the property in Haynes’s favor because Bayview succeeded to Wells Fargo’s right to foreclose on the property. Id. at *6. The Third Court of Appeals reached a similar result in Shamel v. Specialized Loan Servicing, LLC, No. 03-12-00691-CV, 2014 WL 4966330 (Tex. App.—Austin Oct. 2, 2014, no pet.) (sub. mem. op. on denial of reh’g). In that case, Arch Bay I applied for a Rule 736 order, and while the application was pending, Arch Bay I assigned the note and security instrument to Arch Bay II. Id. at *3. Although the Rule 736 order named only Arch Bay I as the entity authorized to foreclose, the appellate court held that “Arch Bay II was authorized to foreclose as Arch Bay I’s assignee.” Id. A federal court applying Texas law reached the same result. In Hernandez v. Town & Country Credit Corp., the petitioner in the underlying Rule 736 proceeding was Household Finance Corporation III (“HFC”), who was then the noteholder and beneficiary of the security instrument of the Hernandezes’ home-equity loan. No. 4:15-CV-1718, 2016 WL 11604842, *1 (S.D. Tex. Sept. 23, 2016). The Rule 736 order authorized HFC and its “Successors and Assigns” to proceed with the foreclosure. Id. Nearly three years after the Rule 736 order was signed, the substitute trustee of HFC’s successor foreclosed, and the successor bought the property. Id. at *1–2. Like Kapur, the Hernandezes argued that the foreclosure sale and the substitute trustee’s deed were void because under the Texas Constitution, a court order is necessary to foreclose a home-equity loan and the successor did not obtain its own Rule 736 order but relied on the order obtained by its predecessor, HFC. Id. at *6. Citing Shamel, the Hernandez court rejected that argument, pointing out that the Rule 736 order authorized HFC’s successor to foreclose. Id. Kapur maintains that Shamel is distinguishable because the assignment in that case expressly included the security instrument, the note, and “any rights due or to become due thereon.” Id. Although not cited by the parties, the assignment in Spears contained the same language. Spears, 2020 WL 238539, at *5. Each of the authoring courts emphasized this language, which is absent from the assignment in this case. But, we disagree with Kapur’s argument that the omission of such language dictates a different outcome. There is no indication in Hernandez that the conveyance of the security instrument contained language such as that found in Shamel, but if there was, the Hernandez court did not rely on it. Rather, the common thread that makes this case like Spears, Shamel, and Hernandez and unlike A Plus is that the evidence establishes the fact of the assignment. Because there is no evidence that the foreclosure sale is void, both Kapur’s quiet-title claim and his request for declaratory relief must fail. Because we overrule issues two through eight and affirm traditional summary judgment on the merits, we do not reach Kapur’s contingent ninth issue concerning attorney’s fees. This also renders moot Kapur’s first issue challenging the no-evidence portion of the summary-judgment motion on procedural grounds. VI. CONCLUSION For the reasons explained above, we affirm the trial court’s judgment. Tracy Christopher Chief Justice Panel consists of Chief Justice Christopher and Justices Wise and Jewell.
