Foreclosures

A Motion Requesting the Judge Setting Aside An Order is Meritorious

Motion to Set Aside Judge Evans Order, ordering no further pleadings or motions. Court has plenary power and due process dictates otherwise.

LIT UPDATE

JULY 17, 2021

On Monday, 12 July, the court didn’t waste any time as it denied Harriet Nicholson’s motion. On July 15th the court reversed that decision and vacated it’s erroneous order.

Update from Harriet Nicholson

Monday, July 12, 2021

In the interest of justice,  Harriet Nicholson filed a Motion to Set Aside the June 29, 2021 Order by Judge Evans, ordering no further pleadings or motions – although the Court has plenary power and due process dictates otherwise.

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.

1 Wylie v Hays, 114 Tex. 46, 263 S.W. 563, 1924 Tex. Lexis 91 (“So, in this case, since the law requires property subject to a power of sale given in a mortgage to be sold in the county where the property is situated, wherever a power of sale is given, that requirement becomes a part of the contract, and a stipulation for a sale in a different county is merely void in itself and does not destroy the power. A sale at the place designated by the statute complies with the rule that the power must be executed strictly in accordance with its terms for the reason that the law becomes a part of the contract and overrides the express stipulation as to the place of the sale.”)

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)

2 See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex. 2010) (“A void order is subject to collateral attack in a new lawsuit, while a voidable order must be corrected by direct attack; unless successfully attacked, a voidable judgment becomes final.”); see also Sanchez v. Hester, 911 S.W.2d 173, 176 (Tex. App.—Corpus Christi 1995, orig. proceeding) (“Voidable orders are readily appealable and must be attacked directly, but void orders may be circumvented by collateral attack or remedied by mandamus.” (citing Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (orig. proceeding))); A judgment is void if it is shown that the court lacked jurisdiction (1) over a party or the property, (2) over the subject matter, (3) to enter a particular judgment, or (4) to act as a court. Zarate v. Sun Operating Ltd., Inc., 40 S.W.3d 617, 621 (Tex. App.–San Antonio 2001, pet. denied); Glunz v. Hernandez, 908 S.W.2d 253, 255 (Tex. App.–San Antonio 1995, writ denied), (citing Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987)); see also Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985); All other errors make the judgment voidable, and may only be corrected through direct attack. Reiss v. Reiss, 118 S.W.3d 439, 433 (Tex. 2003); Toles v Toles, 113 S.W.3d. 899, 914 (Tex.App.-Dallas 2003, pet. denied).

3 If the foreclosure deed passed title subject only to the rights of the borrower to set it aside, the sale is voidable. Slaughter v. Qualles, 139 Tex. 340, 162 S.W. 2d 671 (1942); Diversified, Inc. v. Walker, 702 SW 2d 717 – Tex: Court of Appeals 1985. Whether the trustee’s deed is void or voidable depends on its effect upon the title at the time it was executed and delivered….but if it passed title to Diversified, the purchaser, thereby accomplishing the thing sought to be accomplished, subject only to the right of Walker to have it set aside upon proof that the sale was improperly made, then it was merely voidable. Slaughter v. Oualls, 139 Tex. at 345, 162 S.W.2d at 674.

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

4 Eads v. Wolpoff & Abramson, LLP, 538 F.Supp.2d 981, 986 & n.5 (W.D. Tex. 2008). Section 392.303(a)(2) makes “attempt[s] to collect” actionable.

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.).

5 The Texas Court of Appeals has observed numerous times that a bank’s “failure to keep accurate records” may lead to liability under Section 392.304(a)(8). Dodeka, L.L.C. v. Campos, 377 S.W.3d 726, 733 (Tex. App. 2012); Simien v. Unifund CCR Partners, 321 S.W.3d 235, 244 (Tex. App. 2010); accord Levy v. Cach, L.L.C., No. 14-12-00905-CV, 2013 WL 6237273, at *3 (Tex. App. Dec. 3, 2013) (unpublished) (“[A] failure by the Bank to keep accurate records of its customers’ credit-card debt could result in . . . civil penalties.” (citing Tex. Fin. Cod. § 392.304(a)(8)); Ainsworth v. CACH, LLC, No. 14- 11- 00502-CV, 2012 WL 1205525, at *5 (Tex. App. Apr. 10, 2012) (unpublished) (same).

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
HARRIET NICHOLSON

2951 Santa Sabina Dr.
Grand Prairie,
Texas 75052
nich.district@gmail.com
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:

KELLY HARVEY
HARVEY LAW GROUP

Email: kelly@kellyharvey.com
Harvey Law Group
PO BOX 131407
Houston, Texas, 77219
832.922.4000

It’s All In the Written Word for Judge David Evans Review

The court having considered the requests has decided that all items should be set for written submission. If after written submission the court determines oral argument is needed, the court will schedule the same.

Hold ’em Cattle, It’s Not a Final Judgment Y’all, Sayeth Harriet Nicholson

On April 19, 2021, the Second Court of Appeals signed an “Abatement Order”  requesting the trial court to clarify whether it intended its No-Evidence Motion for Summary Judgment to be final by May 19, 2021.

McGlinchey’s Creditor Rights Associate Daniel Troiano Departs Law Firm and Harriet Nicholson’s Appeal

McGlinchey Stafford request that Mr. Troiano be removed from the Courts E-File system and no longer receive electronic notice of any filings.

A Motion Requesting the Judge Setting Aside An Order is Meritorious
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