MOTION WITH EXHIBITS
PLAINTIFF’S MOTION FOR LEAVE TO SET ASIDE JUNE 29, 2021 ORDER AND REQUEST FOR A HEARING
TO THE HONORABLE JUDGE OF COURT:
NOW COMES HARRIET NICHOLSON (“Plaintiff” “Nicholson”) and files this her Plaintiff’s Motion For Leave To Set Aside June 29, 2021 Order And Request For A Hearing and in support would respectfully show as follows:
I. SUMMARY OF LITIGATION
1. This case commenced on January 17, 2015.
2. On January 18, 2001, Plaintiff executed a Note and Deed of Trust with the original lender, Mid America Mortgage, in TARRANT COUNTY, TEXAS.
3. As demonstrated by the Substitute Trustees Deed, on July 3, 2012, Bank of New York Mellon conducted a foreclosure sale in DALLAS COUNTY, Texas, the wrong county.
4. Plaintiff asserts that the foreclosure of the Plaintiff’s Deed of Trust was conducted in the incorrect county in violation of the Texas Property Code § 51.002 which provides:
“…Sec. 51.002. SALE OF REAL PROPERTY UNDER CONTRACT
LIEN. (a) Except as provided by Subsection (a-1), a sale of real property under a power of sale conferred by a deed of trust or other contract lien must be a public sale at auction held between 10 a.m. and 4 p.m. of the first Tuesday of a month. Except as provided by Subsection (h),the sale must take place at the county courthouse in the county in which the land is located…”
5. The trustee must conduct the foreclosure sale at the location designated by the Commissioner’s Court in the county where the property is sold. [See Attorney General Opinion JAM-1044 dated May 12, 1989, related to designation of foreclosure sale locations.]
6. Nationstar violated the TDCA when mailing notices to Plaintiff before the foreclosure sale was set aside.
II. INCORPORATED DOCUMENTS AND JUDICIAL NOTICE REQUESTED
Plaintiff incorporates Ex. 1-13 attached to her 4.20.16 Plaintiff Response and Cross Motion For Summary Judgment and adds additional documents as follows:
Ex-1: November 1, 2012 Bank of New York Mellon obtained a judgment on possession in the Tarrant County Court, Case No. 2012-006670-1.
Ex-2: Nationstar Statements Requesting Mortgage Payment to Harriet Nicholson Post Eviction Order
Ex-3: December 2015 Nicholson Credit Report with Nationstar False Reporting
Ex-4: April 19, 2016, the lienholder and Nationstar law firm Harvey Law Group mailed Plaintiff a notice of Rescission of Acceleration of Maturity of Indebtedness
Ex-5: December 22, 2014, Nationstar mailed Plaintiff a Notice of Default and identified themselves as a “debt collector attempting to collect a debt”
Ex-6: August 18, 2017 Order Granting In Part And Denying In Part Plaintiff’s Amended Partial Motion For Summary Judgment which stated in relevant part:
“….The Substitute Trustees Deed recorded on 8/2/12, in the Real Property Records of Tarrant County, Texas, under Instrument No. D212187326, is invalid; …”
III. UNDISPUTED FACTS
1. On January 18, 2001, Plaintiff executed with Mid America Mortgage, a Note and Deed of Trust to purchase a homestead property in Tarrant County, Texas (“Mortgage Loan”).
2. On May 23, 2012, the mortgage loan was transferred to Bank of New York Mellon.
3. On June 6, 2011, loan servicer Bank of America mailed Plaintiff a Notice of Default.
4. On April 24, 2012, the foreclosure law firm of Recon Trust mailed Plaintiff a Notice of Acceleration.
5. On July 3, 2012 and as demonstrated by the Substitute Trustees Deed, the Plaintiff’s homestead property was sold at a foreclosure sale on the courthouse steps in Dallas, County, (the wrong county) that was not identified in Plaintiff’s mortgage loan documents. The
Plaintiff’s property was located in Tarrant, County, not Dallas County.
6. Plaintiff asserts that when the foreclosure of the Plaintiff’s Deed of Trust was conducted in the incorrect county, it violated the Texas Property Code § 51.002 which provides:
“…Sec. 51.002. SALE OF REAL PROPERTY UNDER CONTRACT
LIEN. (a) Except as provided by Subsection (a-1), a sale of real property under a power of sale conferred by a deed of trust or other contract lien must be a public sale at auction held between 10 a.m. and 4 p.m. of the first Tuesday of a month. Except as provided by Subsection (h), the sale must take place at the county courthouse in the county in which the land is located…” 1
7. Plaintiff alleged and will show that Bank of New York Mellon and their post foreclosure loan servicer Nationstar, concealed from Plaintiff the sale of the foreclosure conducted in the wrong county and engaged in acts that made Plaintiff believe the foreclosure sale passed title to Bank of New York Mellon.
8. To wit, the Bank of New York Mellon knowingly filed a motion to evict in the Justice Court, Precinct No. 7, Case No. JP-07-12-E00067238.
9. On September 25, 2012, the Bank of New York Mellon obtained an order on possession in the Justice Court, Precinct No. 7, Case No. JP-07-12-E00067238.
10. On October 1, 2012, Plaintiff timely appealed to the Tarrant County Court, Case No. 2012-006670-1.
11. On November 1, 2012, the Bank of New York Mellon obtained a judgment on possession in the Tarrant County Court, Case No. 2012-006670-1. (See Ex-1)
12. Post eviction and before setting aside the voidable foreclosure, beginning in December 1, 2014 though the current time, Nationstar has mailed Plaintiff monthly statements seeking mortgage payments in the base amount of approx. $1,700. (See Ex-2)
13. Post eviction and before setting aside the voidable foreclosure, Nationstar made false credit report statements alleging Plaintiff had been delinquent with her loan post eviction order. Plaintiff has been damaged and has not been able to qualify for a loan or alternate housing because of the false negative credit reporting. (See Ex-3)
14. On April 19, 2016, the lienholder and Nationstar law firm Harvey Law Group mailed Plaintiff a notice of Rescission of Acceleration of Maturity of Indebtedness after the Bank of New York Mellon succeeded in obtaining a voidable foreclosure Substitute Trustees Deed. and eviction order without the Bank filing a subsequent suit to set aside the voidable foreclosure. (See Ex-4)
15. Rescission of Acceleration of Maturity of Indebtedness stated as follows:
“…This communication is from a debt collector….This law firm represents the current lienholder and Nationstar Mortgage, Pursuant to Section 16.038 of the Texas Civil Practice and Remedies Code (“Section 16.038”), Nationstar Mortgage LLC and the lienholder have elected to rescind the acceleration of the maturity of the indebtedness…”
16. On December 22, 2014, Nationstar mailed Plaintiff a Notice of Default and identified themselves as a “debt collector attempting to collect a debt”. (See Ex-5)
17. After Plaintiff learned of the voidable foreclosure, on November 5, 2012, Plaintiff filed an Original Petition in Tarrant County in Cause No. 342-262692-12 to invalidate the foreclosure sale conducted in the wrong county. 2
18. After the Court reviewed the record on the passing of title through the foreclosure and subsequent eviction, the Plaintiff obtained an August 18, 2017 Order Granting In Part And Denying In Part Plaintiff’s Amended Partial Motion For Summary Judgment which stated in relevant part:
“….The Substitute Trustees Deed recorded on 8/2/12, in the Real Property Records of Tarrant County, Texas, under Instrument No. D212187326, is invalid; …” 3 (See Ex-6)
Reversing 3rd COA, despite a dissenting opinion by Justice Labarga. This is a reverse mortgage by corrupt OneWest Bank who would be taken over by Foreclosure King and ex Treasury Sec https://t.co/XstJlLACGZ pic.twitter.com/vDIrhErovb
— LawsInTexas (@lawsintexasusa) July 9, 2021
19. As provided herein, Plaintiff requests this Court set aside the June 29, 2021 Order denying motions or pleadings to be filed during the courts plenary period. Plaintiff has new evidence to present to the Court during its plenary jurisdiction period on litigation activity that occurred after May 17, 2016, the period when this court entered its first final order in this case and before the June 29, 2021 Order was entered.
20. The litigation activity supports Plaintiff’s TDCA violations against Nationstar.
21. After May 17, 2016, the trial court invalidated the Substitute Trustees Deed and Nationstar took actions with the Harvey Law Group in violation of the TDCA and caused damages to the Plaintiff as a result.
22. Among her actual damages, Plaintiff seeks mental anguish damages. Plaintiff also substantially reduced her employment to address litigation matters “Pro Se”. The TDCA violations include as follows:
Tex. Fin. Code § 392.301(a)(8): (a) In debt collection, a debt collector may not use threats, coercion, or attempts to coerce that employ any of the following practices: (8) threatening to take an action prohibited by law.
Tex. Fin. Code § 392.303(a)(2): (a) In debt collection, a debt collector may not use unfair or unconscionable means that employ the following practices: (2) collecting or attempting to collect interest or a charge, fee, or expense incidental to the obligation unless the interest or incidental charge, fee, or expense is expressly authorized by the agreement creating the obligation or legally chargeable to the consumer. 4
Tex. Fin. Code § 392.304(a)(8): Except as otherwise provided by this section, in debt collection or obtaining information concerning a consumer, a debt collector may not use a fraudulent, deceptive, or misleading representation that employs the following practices: (8) misrepresenting the character, extent, or amount of a consumer debt, or misrepresenting the consumer debt’s status in a judicial or governmental proceeding. 5
Tex. Fin. Code § 392.403(a,b,e): A plaintiff “may sue for: (1) injunctive relief to prevent or restrain a violation of this chapter; (2) actual damages (3) attorney fees and (4) costs sustained as a result of a violation of this chapter.
23. Judicial action taken by the trial court after the trial court’s plenary power has expired is void. However, a trial court retains plenary power to grant a new trial or vacate, modify, correct, or reform the judgment within 30 days after the judgment is signed, even if an appeal has been perfected. Tex. R. Civ. P. 329b(d).
24. Whether to hold an evidentiary hearing on a motion for new trial in a civil matter is within the trial court’s discretion. Hamilton v. Pechacek, 319 S.W.3d 801, 807 (Tex. App.— Fort Worth 2010, no pet.); see also Landis v. Landis, 307 S.W.3d 393, 394 (Tex. App.—San Antonio 2009, no pet.) (explaining that a hearing on motion for new trial is generally not mandatory). A trial court is only required to conduct a hearing after it is requested by a party and the motion for new trial presents a question of fact upon which evidence must be heard. Hensley v. Salinas, 583 S.W.2d 617, 618 (Tex. 1979); see George M. Bishop III v. Commission for Lawyer Discipline, No. 01-18-01115-CV, 2020 WL 4983246, at *17 (Tex. App.—Houston [1st Dist.] Aug. 25, 2020, no pet. h.) (mem. op.).
on grounds of newly discovered evidence must demonstrate to the trial court that (1) the evidence came to his knowledge since the trial, (2) his failure to discover the evidence sooner was not due to lack of diligence, (3) the evidence is not cumulative, and (4) the evidence is so material it would probably produce a different result if a new trial were granted. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010).
Respectfully submitted on this the 11th day of July, 2021
/s/ Harriet Nicholson
2951 Santa Sabina Dr.
Plaintiff Pro Se
CERTIFICATE OF SERVICE
I certify that this document was served by electronic filing, certified U.S. Mail, FedEx and/or e-mail on July 11, 2021, upon the following parties:
HARVEY LAW GROUP
Harvey Law Group
PO BOX 131407
Houston, Texas, 77219