8 Years Later, Homeowner Nicholson Returns To N.D. Tex. Federal Court, This Time As Complainant

HARRIET NICHOLSON v. BANK OF AMERICA AND COUNTRYWIDE HOME LOANS, INC.

District Court, N.D. Texas

JUL 30, 2021 | REPUBLISHED BY LIT: JUL 31, 2021

PLAINTIFF’S ORIGINAL COMPLAINT FOR DECLARATORY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 57 and Title 28 U.S.C. §§ 2201 and 2202, Plaintiff Harriet Nicholson files her Original Complaint for Declaratory Judgment and shows the following

I. PARTIES

1. Harriet Nicholson resides in the Northern District of Texas.

2. Defendant, Bank of America, is a national bank headquartered in Charlotte, North Carolina that may be served with process by delivering a copy of the summons to its registered agent, CT Corporation System, 1999 Bryan Street, Suite 900, Dallas, Texas 75201.

3. Defendant, Countrywide Home Loans, Inc. may be served with process by delivering a copy of the summons to its registered agent CT Corporation System, 1999 Bryan Street, Suite 900, Dallas, Texas 75201.

II. JURISDICTION AND VENUE

4. Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1332 (a)(1) and (2), because Harriet Nicholson, Bank of America, and Countrywide Home Loans are citizens of different states and the matter in controversy exceeds $75,000, exclusive of interest and costs.

5. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(a), because Bank of America and Countrywide Home Loans, Inc. is subject to personal jurisdiction in this District.

III. FACTUAL BACKGROUND

6. Bank of America hired Barrett, Daffin, Frappier, Turner and Engle (“BDFTE”) to prosecute a post-foreclosure eviction suit against Harriet Nicholson and all occupants by virtue of Substitute Trustee’s Deed, D212187326, investing title in the Bank of New York Mellon as owner/legal titleholder at the July 3, 2012, foreclosure sale in Dallas County, Texas.

7. On September 5, 2012, BDFTE filed a post-foreclosure eviction suit against Harriet Nicholson and all occupants in case number JP-07-12-E00067238 styled the Bank of New York Mellon v. Harriet Nicholson and all Occupants appending Substitute Trustee’s Deed, D212187326, affirming David Stockman sold Harriet Nicholson’s homestead at the George Allen Courts Building, 600 Commerce Street, Dallas, Texas on July 3, 2012.

8. On September 25, 2012, BONY was granted Judgment of Possession in the eviction suit in case JP-07-12-E00067238.

9. On October 1, 2012, Ms. Nicholson timely appealed the Justice of Peace judgment to the County Court at Law 2012-0006670-1.

10. On November 1, 2012, the BONY was granted Judgment of Possession in the Court Court at Law, 2012-0006670-1.

11. On November 5, 20212, Ms. Nicholson filed an application for TRO to enjoin the wrongful post-foreclosure eviction and quiet title lawsuit in the 342nd District Court of Tarrant County, Texas in cause 342-262692-12.

12. On July 31, 2014, Recontrust Company, foreclosure attorney, clandestinely filed a “Notice of Rescission, D214164490” in the Tarrant County, Texas real property records purporting to grant Ms. Nicholson the “Notice of Rescission” rescinding the July 3, 2012 invalid foreclosure sale; cancelling the August 2, 2012 Substitute Trustee’s Deed on July 3, 2012; and reinstating Ms. Nicholson’s foreclosed loan without her knowledge or consent during the pendency of the quiet title lawsuit to escape a legal malpractice lawsuit for violations of the Texas Property Code 51.002(a) to save its face from the invalid foreclosure sale. Gulf Coast Inv. Corp. v. Brown, 821 S.W.2d 159, 160 (Tex. 1991); see TEX. PROP. CODE § 51.002 (prescribing the mandatory process for selling real property via non-judicial foreclosure sale under a power of sale conferred by a contract lien).

IV. PROCEDURAL FACTS

13. On June 21, 2016, Ms. Nicholson filed a lawsuit in the 48th District Court, Tarrant County, Texas for declaratory judgment to declare the “July 31, 2014, Notice of Rescission, D214164490” was null and void and had no effect on the July 3, 2012, foreclosure sale; assigned case numbered 048-286132-16 styled Harriet Nicholson v. David Stockman.1

14. On June 11, 2018, Plaintiff filed her Eighth Amended Petition in cause 048- 286132-16 complaining against eleven (11) separate defendants, including BANA and CHLI; David Stockman, Donna Stockman, Denise Boerner, ReconTrust, Nationstar, Harvey Law Group, BONY, William Viana and Trefe Tekel – which was the operative pleading.

“Judicial Immaturity” is not an excuse https://t.co/WtodU62Wrq #txlege #appellatetwitter @Harvard @knightcolumbia @fedsoc @GovAbbott @SupremeCourt_TX @judgewise @JudgeGoodwin @meagan4justice @JusticeLandau @bethwalkr @NathanLHecht @BrettBusby @GoodLawProject @farris_april @abc pic.twitter.com/k1PcwmCme2

— LawsInTexas (@lawsintexasusa) July 24, 2021

15. In the Eighth Amended Petition, Plaintiff asserted causes of action for violations of § 12.002 of the Civil Practice and Remedies Code, negligence per se, gross negligence per se, declaratory judgment pursuant to Chapter 37 of the Civil Practice and Remedies Code, civil conspiracy to commit fraud, fraud, and respondeat superior against ALL defendants based on allegations relating to the execution and filing an artifice in the Tarrant County, Texas real property records to escape legal malpractice for failing to effectuate a valid non-judicial foreclosure sale and post-foreclosure mortgage fraud to save its face.

16. On October 30, 2018, the Trial Court granted summary judgment in favor of BANA and against the Eighth Amended Petition (the “BANA MSJ Order”). 2

17. That same day, the Trial Court also granted summary judgment in favor of CHLI and against the Eighth Amended Petition (the “CHLI MSJ Order”). 3

18. On November 9, 2018, BANA and CHLI filed its Motion to Sever after dismissal of all claims against them in the interlocutory summary judgment orders on October 30, 2018.

19. On November 28, 2018, the Court granted BANA’s and CHLI’s Motion to Sever and assigned Cause No. 048-304598-18 to the Severed Case. 4

20. On February 26, 2019, Plaintiff filed Notice of Appeal, appealing the presumptive final severance and summary judgment orders in favor of BANA and CHLI.5

21. On December 31, 2019, the Second Court of Appeals entered an advisory opinion6 and signed a judgment affirming BANA’s and CHLI’s interlocutory summary judgment and severance orders rendered in case 048-286132-16 in the trial court.7

22. On February 19, 2020, the trial court signed its Final Judgment disposing all parties and claims in case 048-286132-16.8

The chart above shows there were pending claims against nine remaining defendants after BANA’s and CHLI’s interlocutory summary judgment and severance orders were signed.

A. THE SECOND COURT OF APPEALS JUDGMENT CAN BE COLLATERALLY ATTACKED IN FEDERAL COURT FOR LACK OF JURISDICTION

Under Texas law, a state court judgment must be defective for at least one of the following four reasons to be collaterally attacked in federal court (2) the state court lacked jurisdiction over the subject matter of the suit: (3) the state court lacked jurisdiction to enter the particular judgment rendered: or (4) the state court lacked the capacity to act as a court. Steph v. Scott, 840 F.2d 267, 270 (5th Cir. 1988). citing Ranger Insurance Co. v. Robertson, 680 S.W.2d 618, 620 (Tex.Ct.App.1984) (citing, Austin Independent School District v. Sierra Club, 495 S.W.2d 878 (Tex.1973); Hodges, Collateral Attack on Judgments, 41 Tex.L.Rev. 163, 164 (1962)).

B. SECOND COURT OF APPEALS’ JUDGMENT AFFIRMING INTERLOCUTORY ORDERS WITHOUT JURISDICTION IS VOID

The Supreme Court made clear in Cohens v. Virginia, 19 U.S 264, 404 (1821) (Marshall, C.J.) (“We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.”), and has continued to reiterate the principle. See, e.g., Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167 (2014); Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014); Sprint Communications, Inc. v. Jacobs, 571 U.S. 69, 77 (2013).

C. TEXAS APPELLATE COURTS HAVE JURISDICTION ONLY OVER FINAL JUDGMENTS AND STATUTORILY APPEALBALE INTERLOCUTORY ORDERS

23. Appellate jurisdiction is never presumed. Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex.App.-Dallas 2009, no pet.). Appellate jurisdiction is established exclusively by constitutional and statutory enactments. See, e.g., Tex. Const. art. V, § 6; Tex. Gov’t Code Ann. § 22.220 (Vernon Supp.2009).

24. It is well settled that appellate courts have jurisdiction only over final judgments and interlocutory orders made appealable by statute. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001); TEX. CIV. PRAC. & REM. CODE ANN. §51.014 (West 2015) (authorizing appeals from certain interlocutory orders). A judgment issued without a conventional trial on the merits is final for purposes of appeal if either: (1) it actually disposes of all claims and parties then before the court, regardless of its language; or (2) it states with unmistakable clarity that it is a final judgment as to all claims and parties. Farm Bureau County Mut. Ins. Co. v. Rogers, 455 S.W.3d 161, 163 (Tex.2015); Lehmann, 39 S.W.3d at 192-93.

D. BANA’S AND CHLI’S INTERLOCUTORY SUMMARY JUDGMENTS WERE NOT STATUTORILY APPEALABLE

25. By contrast, at least in theory, a partial summary judgment–one that does not dispose of all parties and issues–is not final until the trial court takes action disposing of the remaining issues and parties. See Guillory, 751 S.W.2d at 492 (holding that when a summary judgment is clearly interlocutory, any appeal from that judgment must be dismissed, absent a severance of the unresolved issues by the trial court); Columbia Rio Grande Reg’l. Hosp. v. Stover, 17 S.W.3d 387, 391 (Tex. App.– Corpus Christi 2000, no pet.)

E. JUDGMENT WITHOUT JURISDICTION IS VOID

The most fundamental issue for any court to determine is jurisdiction. “A judgment is void … when it is apparent that the court rendering the judgment had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court.” Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990). Because jurisdiction is necessary for the court to have power to act, it may be questioned at any time by any party or the court itself. McCauley v.Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957); Ramsey v.Dunlop, 146 Tex. 196, 205 S.W.2d 979, 983 (1947).

F. BANA’S AND CHLI’S SEVERANCE ORDER WAS NOT A FINAL JUDGMENT

26. A severance order itself is not a final judgment. Allen Parker Co. v. Trustmark Nat. Bank, 14-11-00027-CV, 2012 WL 8017011 (Tex. App.-Houston [14th Dist.] Feb. 16, 2012, no pet.) (mem. op.). A severance order that does not dispose of all parties and claims is a nonappealable interlocutory order. Beckham Group, P.C. v. Snyder, 315 S.W.3d 244 (Tex.App.-Dallas 2010, no pet.).

27. The finality of judgments can be affected by the occurrence of certain events during the course of litigation. For example, under the doctrine of “merger,” an otherwise interlocutory order becomes final when a subsequent order (or series of orders) is entered disposing of the remaining parties and claims. See Woosley v. Smith, 925 S.W.2d 84, 87 (Tex. App.–San Antonio 1996, no writ) (“Once an order has been entered disposing of all remaining parties and issues, all the orders merge, creating a final appealable judgment.”)

28. As soon as an order disposes of the final party or issue (or contains a Mother Hubbard clause), the orders all conceptually merge into a final, appealable judgment and any desired appeal must be taken. See Howard Gault & Son, Inc. v. Metcalf, 529 S.W.2d 317, 320 (Tex. Civ. App.–Amarillo 1975, no writ)

V. REQUEST FOR DECLARATORY RELIEF

29. Harriet Nicholson respectfully requests that this Court declare (1) the Second Court of Appeals’ Judgment in Case No. 02-19-00085-CV styled Harriet Nicholson v. Bank of America, N.A. and Countrywide Home Loans, Inc. is null and void and not binding on the parties; and (2) vacate the Second Court of Appeals’ judgment in Case No. 02-19-00085-CV styled Harriet Nicholson v. Bank of America, N.A. and Countrywide Home Loans, Inc.02-19-00085-CV styled Harriet Nicholson v. Bank of America and Countrywide Home Loans, Inc. This request for declaratory relief is made subject to and without waiver of Harriet Nicholson’s rights.

VI. PRAYER

WHEREFORE, Harriet Nicholson prays that BANA and CHLI be cited to appear and answer, and that Harriet Nicholson have judgment:

1) Declaring that the Second Court of Appeals’ Judgment rendered on December 31, 2019, in case numbered 02-19- 00085-CV styled Harriet Nicholson v. BANA and CHLI is null and void for lack of jurisdiction;

and

2) Vacating the Second Court of Appeals’ Judgment rendered on December 31, 2019, in case numbered 02-19- 00085-CV;

and

3) Awarding Harriet Nicholson such other and further relief to which she may be entitled, including attorney’s fees, costs, and expenses in prosecuting this action.

Respectfully submitted,

By: /s/Harriet Nicholson

Harriet Nicholson
2951 Santa Sabina Drive
Grand Prairie,
Texas 75052 817-217-0245
harrietnicholson@yahoo.com

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was served on Connie Flores, counsel of record, by the court’s electronic filing system and/or email on July 30, 2021.

/s/ Harriet Nicholson

Nicholson v. The Bank of New York Mellon

(4:13-cv-00542-A) District Court, N.D. Texas

JUL 3, 2013 | REPUBLISHED BY LIT: JUL 31, 2021

Post Edited: Strike II – You Can’t Have a Fifth Circuit Clerk Filing Your Motions, That’s Void Ab Initio https://t.co/Upyf3yRMwB

— LawsInTexas (@lawsintexasusa) July 29, 2021