Bank’s Double Dealing in Texas Post Foreclosure

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL………………………………………………….. i

TABLE OF CONTENTS…………………………………………………………………………… ii

INDEX OF AUTHORITIES……………………………………………………………………… iii

STATEMENT OF THE CASE………………………………………………………………………

This mandamus petition presents this court with a case likely never encountered in Texas  jurisprudence. A bank forecloses on a borrower’s homestead, sells  the  home,  obtains  sole title  through a substitute trustee’s deed  and  obtains  a  judgment  of  possession.

Two  years later,  the  bank, its legal counsel and agents act autonomously to rescind the sale, reinstate the loan,   rescind     the  substitute   trustee’s   deed   and   place   title   back   in   the   name   of   the borrower   without   the  borrower’s  knowledge  or  consent.

All  done  while  in  litigation  with  the  borrower  in   effective pursuit of  a  common  goal  to  mislead  the  court,  cover-up  their  errors  and  take  advantage of an unwittingly pro se litigant to deny her equal and impartial justice.

“If it were impossible for individual human beings (or  group  of  humans  beings)  to  act  autonomously  in  effective  pursuit   of   a   common   goal,   the   game   of   soccer   would   not   exist.” Former US Supreme Court Justice Anthony Scalia. United States v. Virginia, 518  U.S. 515, (1996)

STATEMENT OF JURISDICTION …………………………………………………………………

STATEMENT REGARDING ORAL ARGUMENT ………………………………………..

ISSUE PRESENTED ………………………………………………………………………………………

NOTE REGARDING RECORD REFERENCES………………………………………………

STATEMENT OF FACTS …………………………………………………………………………..

ARGUMENT ……………………………………………………………………………………... ……

1. The Respondent trial judge abused her discretion by failing to join parties ...………..
2. Relator have no adequate remedy by appeal………………………………………..

PRAYER ………………………………………………………………………………………………………

CERTIFICATION,  CERTIFICATES   OF SERVICE,  COMPLIANCE . APPENDIX  [Trial court orders]…………………………………………………………………………. Attached

IDENTITY OF PARTIES AND COUNSEL

 Relator:

Harriet Nicholson

 Respondent:

Hon. Kimberly Fitzpatrick
342^nd District Court
Tarrant County Courthouse
Fort Worth, Texas 76196

 Real Parties in Interest:

DWAYNE DANNER, SBN: 00792443 ddanner@mcglinchey.com

DANIEL  P.    TROIANO, SBN: 24106520

dtroiano@mcglinchey.com      MCGLINCHEY STAFFORD, PLLC

Three Energy Square
6688 North Central Expressway,
Suite 400
Dallas, Texas 75206

Counsel for Bank of New York Mellon, Bank of America, ReconTrust, Countrywide Home Loans, Inc., and Melanie Cowan, Real Parties in Interest

TATIANA ALEXANDER, SBN: 24055090

E-mail: talexander@mcguirewoods.com

MCGUIREWOODS LLP
2000 McKinney Avenue, Suite 1400
Dallas, Texas 75201

Counsel for Nationstar Mortgage and Harvey Law Group, Real Parties in Interest

Crystal G. Gibson;

Barrett Daffin Frappier Turner & Engel, LLP 4004 Belt Line Road, Suite 100 Addison, TX 75001

CrystalR@BDFgroup.com

Counsel for David Stockman, Real Party in Interest

 INDEX OF AUTHORITIES

Cases

Brooks v. Northglen Ass’n, 141 S.W.3d 158, 162 (Tex. 2004)……………………………………….. 3, 14, 20

Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653 (Tex. 1996)………………………………………………. 16

Crawford v. XTO Energy, Inc., 509 S.W.3d 906, 913 (Tex. 2017)…………………………………………. 15

Crawford v. XTO Energy, Inc., 509 S.W.3d 906, 914 (Tex. 2017)…………………………………………. 13

In re E.L.P., 636 S.W.2d 579, 581 (Tex. App.    San Antonio 1982, orig. proceeding)…………………. 17

In re Prudential Ins. Co. of America, 148 S.W.3d 124, 136-37 (Tex. 2004)…………………………….. 20

In re Prudential Ins. Co. of America, 148 S.W.3d at 136-37………………………………………………… 20

Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993)……………………………………………… 18

, 90 S.W.3d 268, 288 (Tex. 2002)………. 16

Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)………………………………….. 12

, 44 S.W.3d 575, 579 (Tex. 2001)…………………………………………. 15

Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)……………………………………………………………. 12

Walker, 827 S.W.2d at 840……………………………………………………………………………………………… 20

Statutes

TEX. CIV. PRAC. & REM. CODE § 37.006(a)………………………………………………………………… 13

Rules

Tex. R. Civ. P. 39……………………………………………………………………………………………….. 13, 14, 18

Regulations

TEX.GOV’T CODE§ 22.221(b)………………………………………………………………………………………… 3

Constitutional Provisions

TEX.CONST. art. V § 6(a)………………………………………………………………………………………………. 3

I.                  STATEMENT OF THE CASE

On or around November 6, 2012 Plaintiff filed an Application for Temporary Restraining Order to enjoin a wrongful post-foreclosure eviction that was subsequently granted and extended.¹

On December 6, 2012 Plaintiff filed a Lis Pendens in the Tarrant County, Texas real property publicly noticing the pending lawsuit to adjudicate title post-foreclosure.²

On March 21, 2013, the trial court held a temporary injunction hearing on Plaintiff’s challenge to the BONYM’s Judgment of Possession in the County Court at Law and the BONYM advised the Court they were foregoing “Writ of Possession” during the pendency of the instant case.³

While this lawsuit was ongoing, David Stockman (substitute trustee under the Deed of Trust in 2012) and ReconTrust (substitute trustee under the Deed of Trust and foreclosure attorney in 2012) secretly filed a “Notice of Rescission”, D214164490, on July 31, 2014 purporting to rescind the foreclosure sale, cancel the substitute trustee’s deed, and reinstate lien on Ms. Nicholson’s property.⁴

Particularly where, as here, David Stockman and Recontrust were double dealing and breaching their fiduciary duties to the trust, the dual representation

¹ TAB1_TRO APP 11.06.12

² TAB2_LIS PENDENS 12.06.12

³ TAB3_TEMP INJ HEARING TRANSCRIPT 03.21.13

⁴ TAB4_NOTICE OF RESCISSION 07.31.14

is untenable. “The law abhors double dealing, especially upon the part of one in whom a trust is reposed and confidence given.⁵

On or around August 2014, BONYM, BANA, David Stockman, Recontrust Company, Nationstar Mortgage, LLC, and the Harvey Law executed a meticulously orchestrated scheme to reinstate Ms. Nicholson’s loan documents without her knowledge or consent attempting to foreclose again illegally.

BONYM, BANA, David Stockman, Recontrust Company, Nationstar Mortgage, LLC, and the Harvey Law engaged in double dealing, whereby they were vehemently contesting Ms. Nicholson’s quiet title/trespass to try title claims to the property in the Court; while on the other hand, pursuing aggressive debt collections threatening a subsequent foreclosure on the purported reinstated loan post-foreclosure outside the Court simultaneously.

On April 19, 2016, the HLG, debt collector, purported to waive the lienholder’s right to foreclose after they had actually foreclosed.⁶

On June 6, 2016, Ms. Nicholson sent an objection to HLG’s letter, stating “the lienholder had actually foreclosed and its letter was nonsensical.”⁷

On December 20, 2017, the BONYM purported to assign Nationstar Mortgage, LLC any interests it had under the “Deed of Trust” subject of this lawsuit.⁸

5 Smith v. Grant, 483 S.W.2d 871, 876 (Tex.Civ.App.1972)

⁶ TAB6_HLG WAIVER OF FORECLOSURE LETTER 04.19.16

⁷ TAB7_MS. NICHOLSON’S OBJ TO HLG LETTER 06.06.16

I.   STATEMENT OF JURISDICTION

The authority of this Court to issue writs is initially derived from the Texas Constitution. Article V, section 6 confers on the intermediate appellate courts “such other jurisdiction, original and appellate, as may be prescribed by law.” TEX.CONST. art. V § 6(a) (emphasis added).

Texas Government Code section 22.221(b) thus provides that “Each court of appeals for a court of appeals district may issue all writs of mandamus, agreeable to the principles of law regulating those writs, against: (1) a judge of a district, statutory county, statutory probate county, or county court in the court of appeals district[.]” TEX.GOV’T CODE§ 22.221(b).

Based on this authority, this Court has jurisdiction to grant the requested writ of mandamus against the Respondent, the judge of the 342^nd Judicial District Court of Tarrant County.

III.           STATEMENT REGARDING ORAL ARGUMENT

The trial court committed a clear abuse  of  discretion  by  striking Nationstar Mortgage, LLC and the HLG from the instant  case  after  proper service and appearance; denying Relator’s Motion to Reinstate Nationstar and

⁸ TAB8_2017 ASSIGNMENT 12.20.17

HLG; denying Relator’s Verified Plea in Abatement pursuant to TRCP 93(4); and denying Relator’s Motion to Vacate Order Denying Relator’s Plea in Abatement pursuant to TRCP 93(4) whose presence is necessary to the adjudication of this case to accord Ms. Nicholson complete relief.

Relator do not believe oral argument is necessary. Of course, if the Court believes oral argument would materially aid the decisional process, Relators request oral argument.

IV.            ISSUE PRESENTED

The trial court abused its discretion by failing to rejoin Nationstar Mortgage and the HLG after being properly served and appeared whose presence is necessary for the adjudication of this dispute to accord Ms. Nicholson complete relief on her quiet title, declaratory relief and fraud claims. The writ of mandamus is the appropriate remedy for this abuse of discretion.

V.               NOTE REGARDING RECORD REFERENCES

The record is cited by Tab Number of the referenced documents corresponding to the footnote. Mandamus records sent under separate cover.

VI.            STATEMENT OF FACTS

This lawsuit arose after Ms. Nicholson filed an Application for Temporary Restraining Order to enjoin a wrongful post-foreclosure eviction.⁹ While this lawsuit was ongoing, David Stockman (appointed

⁹ TAB9_TRO APP 11.06.12

substitute trustee under Deed of Trust in 2012) and ReconTrust Company (foreclosure attorney in 2012) executed and filed the “Notice of Rescission”, D214164490 on July 31, 2014 without Ms. Nicholson’s consent or knowledge.¹⁰

On August 11, 2014, David Romness, Defendant’s then-counsel, sent Ms. Nicholson an email which stated in relevant part: The Notice of Sale listed the wrong location of the sale and the sale was no good because of this.   Thus, the bank is no longer considered the owner of the property, nor has a right to possession.11

On November 15, 2014, Bank of America sent Ms. Nicholson a letter which stated in relevant part: The servicing of your home loan will transfer to Nationstar Mortgage LLC on December 01, 2014.¹²

On December 8, 2014, Nationstar Mortgage sent Ms. Nicholson a Welcome letter which included the following¹³:

¹⁰ TAB10_NOTICE OF RESCISSION 07.31.14

¹¹ TAB11_D. ROMNESS EMAIL FORECLOSURE NULL AND VOID 08.10.14

¹² TAB12_BANK OF AMERICA GOOD BYE LETTER 11.15.14

¹³ TAB13_NATIONSTAR WELCOME LETTER 12.08.14

On December 22, 2014, Nationstar Mortgage sent Ms. Nicholson a letter which stated in relevant part: Your account is now due for the 04/01/2011 payment, and subsequent payments. This is  a demand for   a payment of $80,603.28….

Unless we receive full payment of all past-due amounts by the date above, we will accelerate the entire sum of both principal and interest due and payable, and invoke any remedies provided for in the Note and Security Instrument, including but not limited to the foreclosure sale of the property. This could result in the loss of your property.¹⁴

On February 11, 2015, Alison Mayou, Nationstar Mortgage sent Ms. Nicholson a letter which stated in relevant part: This mortgage is presently in default. It is possible that it could be referred to an attorney for foreclosure action if not brought current.    This may

¹⁴ TAB14_NATIONSTAR NOTICE OF DEFAULT 12.22.14

result in additional costs.¹⁵

On April 19, 2016, the HLG sent Ms. Nicholson a letter which stated in relevant part: ** This communication is from a debt collector and this is an attempt to collect a debt and any information obtained will be used for that purpose. **¹⁶

On June 20, 2016, R. Dwayne Danner, counsel for BONYM, BANA, ReconTrust sent Ms. Nicholson a letter which stated in relevant part: “The reason there was at one time a zero balance on your loan was because of the July 3, 2012, foreclosure.”¹⁷

On February 22, 2017, BONY, BANA, Recontrust, and Melanie  Cowan filed its Response to Plaintiff’s  Request  for  Initial  Disclosures  which stated in relevant part: (b) The name, address, and telephone number of any potential parties RESPONSE: Nationstar Mortgage LLC, current servicer of subject mortgage, c/o Kelly J. Harvey, Harvey Law Group, P.O. Box 131407, Houston, Texas 77219, 832-922-4000.18

On May 18, 2017, Plaintiff filed her Sixth Amended Petition adding CHLI, David Stockman, Nationstar Mortgage, LLC and HLG.¹⁹

On May 30, 2017, Nationstar Mortgage, LLC was properly

¹⁵ TAB15_NATIONSTAR DEBT VALIDATION LETTER 02.11.15

¹⁶ TAB16_SEE TAB 6 HLG LETTER 04.19.16

¹⁷ TAB17_D. DANNER’S LETTER 06.20.16

¹⁸ TAB18_DEF RESPONSE TO REQ FOR INITIAL DISCLOURES 02.22.17

¹⁹ TAB19_PLTF’S 6AP 05.18.17

served.²⁰ On June 1, 2017, the HLG was properly served.²¹

On June 5, 2017, BONYM, BANA, ReconTrust, and Melanie Cowan filed its Motion to Strike Additional Parties.²²

On June 15, 2017, the trial court heard BONYM, BANA, ReconTrust, and Melanie Cowan’s Motion to Strike Additional Parties²³ and subsequently granted the relief to strike.²⁴ The following exchanges occurred in the Court pp. 13-15:

²⁰ TAB20_NATIONSTAR PROCESS OF SERVICE 05.30.17

²¹ TAB21_HLG PROCESS OF SERVICE 06.01.17

²² TAB22_DEF MOTION TO STRIKE ADD’L PARTIES 06.05.17

²³ TAB23_DEF MOTION TO STRIKE ADD’L PARTIES HEARING TRANSCRIPT 06.15.17

²⁴ TAB24_ORDER GRANTING MOTION TO STRIKE 06.15.17

On August 18, 2017, the Court declared the “Substitute Trustee’s Deed” and the “Notice of Rescission” were both invalid²⁵.

On October 26, 2017, the court signed the “Final Judgment”. ²⁶

On December 20, 2017, Corporate Assignment of Deed of Trust was filed in the Tarrant County,

²⁵ TAB25_ORDER 08.18.17

²⁶ TAB26_FINAL JUDGMENT 10.26.17

Texas real property records purporting to assign any interest in the “Deed of Trust” the subject of this lawsuit to Nationstar Mortgage, LLC.²⁷

On January 24, 2018, Plaintiff timely appealed the purported “Final Judgment” to the Second Court of Appeals.²⁸

On July 24, 2020, the Second Court of Appeals issued its mandate and the trial court’s jurisdiction was reinstated.²⁹

On August 4, 2020, the HLG and Nationstar Mortgage, LLC appeared in the lawsuit³⁰ and the following actions took place between July 24, 2020 and August 26, 2020.

²⁸ TAB28_NOTICE OF APPEAL 01.24.18²⁷ TAB27_2017 ASSIGNMENT 12.20.17

²⁹ TAB29_MANDATE 07.24.20

³⁰ TAB30_ PLTF’S OPPOSED MOTION TO REINSTATE STRICKEN PARTIES TRANSCRIPT

³¹ TAB31

³² TAB32

³³ TAB33

³⁴ TAB34

³⁵ TAB35

³⁶ TAB36

³⁷ TAB37

³⁸ TAB38

VII.        ARGUMENT

A. Respondent abused her discretion in failing to rejoin Nationstar Mortgage and the HLG as necessary parties because in their absence complete relief cannot be accorded among those already parties on Ms. Nicholson’s quiet title, declaratory relief, and fraud claims.

The standard of review for a mandamus proceeding is the abuse-of- discretion standard. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.proceeding). A trial judge abuses her discretion when she reaches a decision which is without basis in guiding principles of law. Id. at 840; see Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding).

Nationstar Mortgage and the Harvey Law Group must be made parties pursuant to the Texas Declaratory Judgment Act and Rule 39

³⁹ TAB39

⁴⁰ TAB40

⁴¹ TAB41

⁴² TAB42

⁴³ TAB43

Texas Declaratory Judgments Act, states that “[w]hen declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties.” TEX. CIV. PRAC. & REM. CODE § 37.006(a).

The Act uses different language than Rule 39 in describing who constitutes a necessary party and outlines different consequences for nonjoinder.

While the Act simply clarifies that a “declaration does not prejudice the rights of a person not a party to the proceeding,” id., Rule 39 states that “the court shall order that [the necessary party] be made a party,” TEX. R. CIV. P. 39(a).

Accordingly, Rule 39’s requirements govern when a party is seeking to compel joinder of persons in a declaratory-judgment action.

Crawford v. XTO Energy, Inc., 509 S.W.3d 906, 914 (Tex. 2017) citing (Brooks v. Northglen Ass’n, 141 S.W.3d 158, 162 (Tex. 2004)

Under Texas Rule of Civil Procedure 39, a person shall be joined as a party if

(1) in his absence complete relief cannot be accorded among those already parties, or

(2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (I) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. TEX. R.CIV.P. 39.

The rule permits a court to order that such a person be made a party. Id. However, Nationstar Mortgage and the HLG meet these definitions. Nationstar Mortgage and the HLG fall within the first category of Rule 39.

This section requires the presence of persons who have an interest in the litigation so that any relief awarded will effectively and completely adjudicate the dispute. Brooks v. Northglen Ass ‘n, 141 S.W.3d 158, 162 (Tex. 2004).

Rule 39(a) requires the joinder of a person who is subject to service of process if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. Tex. R. Civ. P. 39(a).

B.    Rule 39 Requires Joinder of Nationstar Mortgage and the HLG

1. Nationstar Mortgage and the HLG are necessary parties to adjudicate the dispute for quiet title, declaratory relief Plaintiff’s obligations under the note and “Deed of Trust” are time barred, and fraud between Relator and Real Parties in Interest. Complete relief cannot be had with the current parties because (1) Nationstar Mortgage purports to have an interest in the property the subject of the lawsuit; (2) HLG purports to be a debt collector for the note that’s subject of this lawsuit, purported to waive the lienholder’s right to foreclose post-foreclosure; and an active participant in the post-foreclosure double dealing scheme.

2. Nationstar Mortgage and the HLG also fall into the second category of Rule In order to be a person who “claims an interest relating to the subject of the action,” a person must do something to actually claim an interest. Crawford v. XTO Energy, Inc.,509 S.W.3d 906, 913 (Tex. 2017). Nationstar Mortgage claims an interest in the property that is the subject of this lawsuit by virtue of the “2017 Assignment”. The HLG purports to be a debt collector on the purchase money note the subject of this lawsuit

C.   Absent joinder, collateral estoppel and res judicata could bar Ms. Nicholson’s claims in any subsequent suits.

Collateral estoppel, or issue preclusion, is a rule that prevents relitigation of particular issues of law or fact that were resolved in a prior suit. E.g., Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001). Relitigation of an issue is barred by collateral estoppel whenever

(1) the facts sought to be litigated were fully and fairly litigated in the prior action;

(2) those facts were essential to the judgment in the first action; and

(3) the party against whom collateral estoppel is being asserted was a party in the prior litigation or in privity with a party in that litigation.

E.g., John G. & Marie Stella Kenedy Mem’l Found. v. Dewhurst, 90 S.W.3d 268, 288 (Tex. 2002).

The first two elements are not in dispute. Nor should be the third. To determine whether subsequent plaintiffs are in privity with prior plaintiffs, a court examines the interests the parties shared. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653 (Tex. 1996). Privity exists whenever the parties share an identity of interests in the basic legal right that is the subject of litigation. Id.

Surely Nationstar Mortgage and the HLG would be in privity with real parties in the interest regarding the property, note, and security interest subject of this lawsuit.

D.   Absent joinder of HLG and Nationstar, Plaintiff/Relator faces the risk of multiple and inconsistent obligations.

1. Rule 39(a)(2)(ii) requires joinder when the already existing parties face the risk of multiple or inconsistent obligations. This case presents the textbook example of that threat to Plaintiff. Thus, Judge Fitzpatrick abused her discretion in failing to rejoin Nationstar Mortgage, LLC and the HLG in the instant case.

a.  Plaintiff faces the risk of inconsistent outcomes.

Separate lawsuits pose myriad possibilities for different and inconsistent outcomes. One court might grant summary judgment for a particular defendant whose identical motion is denied in the other case. Plaintiff faces duplicative litigation.

Regardless of collateral estoppel, the Plaintiff should not have to sue again on the same conduct twice. “[T]he rules of procedure encourage joinder of all interested parties with the aim of protecting Plaintiff from a multiplicity of suits.” In re E.L.P., 636 S.W.2d 579, 581 (Tex. App.—San Antonio 1982, orig. proceeding).

Judge Fitzpatrick’s ruling promotes this risk. Accordingly, her ruling fail to comply with rule 39, and mandamus would be appropriate.

E.    Nationstar Mortgage and the HLG were properly served and appeared.

Rule 39(a) requires the joinder of a person who is subject to service of process if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of theaction and is so situated that the disposition of the action in his absence may

(i) as a practical matter impair or impede his ability to protect that interest or

(ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. R. Civ. P. 39(a).

Nationstar Mortgage and the HLG were properly served on May 30, 2017 and June 1, 2017 respectively. After the Second Court of Appeals issued its mandate on July 24, 2020, Nationstar Mortgage and the HLG’s counsel appeared and filed its opposition to Plaintiff’s Motion to Reinstate Stricken Parties on August 3, 2020 and appeared in open court on August 4, 2020.

F.    There is a clear abuse of discretion.

In deciding whether to issue mandamus, appellate courts should also delve into equitable considerations: “Although mandamus is not an equitable remedy, its issuance is largely controlled by equitable principles.” Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding). Here, all equitable considerations point to issuing mandamus.

1.     Joinder prevents wasted resources.

Judge’s Fitzpatrick’s orders conflict with well settled Texas law against piecemeal litigation protecting both the court system and Relator from wasted resources.

2.     Because any subsequent lawsuits regarding the subject matter of the instant case would involve identical facts and claims, Ms. Nicholson’s resources would be better served by joinder.

While “double your pleasure, double your fun” may be a clever advertising slogan for a chewing gum, it has no application to duplicative efforts in litigation. Potentially multiple foreseeable independent cases based on the same facts and allegations would also be a substantial, unnecessary waste of the Relator’s and judicial resources.

3.     Because the claims and facts would be identical in subsequent cases, judicial economy is served by joinder of Nationstar Mortgage and the HLG.

Only one judge, one court staff, and one jury are needed. Judicial economy would be best served by conducting discovery in a single case, and proceeding with a single trial. Why should multiple courts be tied up, and multiple juries empaneled, for what is essentially one lawsuit? The same liability evidence will be presented in both.

All these problems, and more, would appear if Judge Fitzpatrick’s orders are allowed to stand.

4.     Real Parties in Interest hands are unclean.

Real Parties in Interest gaming of the system deserves neither to be rewarded nor encouraged. This is another equitable consideration for issuing mandamus.

Nonetheless, “Rule 39, like the Declaratory Judgment Act, mandates joinder  of  persons  whose  interests   would   be   affected   by   the judgment.” Brooks, 141 S.W.3d at 162 (“When declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties.” (emphasis added by the Texas Supreme Court)).

Respondent abused her discretion in denying Relator’s Motion to Reinstate Stricken Parties, denying Relator’s Verified Plea in Abatement pursuant to TRCP 93(4), and denying Relator’s Motion to Vacate Order Denying Relator’s/Plaintiff’s Verified Plea in Abatement. Relator respectfully requests the writ of mandamus to correct this abuse.

G.   Relator have no adequate remedy by appeal.

Mandamus relief is generally available only to a party who does not have an adequate remedy by appeal. Walker, 827 S.W.2d at 840; In re Prudential Ins. Co. of America, 148 S.W.3d 124, 136-37 (Tex. 2004) (orig. proceeding). Whether an appellate remedy is adequate in any case depends on the particular circumstances presented. In re Prudential Ins. Co. of America, 148 S.W.3d at 136-37. In the circumstances of this case, Relator have no adequate remedy by appeal.

PRAYER

For these reasons, Relator respectfully requests that the Court grant this petition for writ of mandamus, and direct the trial court to vacate its order denying Relator’s Motion to Reinstate Stricken Parties; denying Relator’s Verified Plea in Abatement pursuant to TRCP 93(4); denying Relator’s Motion to Vacate Order Denying Plaintiff’s Verified Plea in Abatement; rejoin Nationstar Mortgage, LLC and the HLG as necessary parties to accord Ms. Nicholson complete relief on her quiet title, declaratory relief and fraud claims; and pray for such other relief to which she may be justly entitled.

Respectfully submitted,

/s/ Harriet Nicholson Harriet Nicholson

2951 Santa Sabina Drive
Grand Prairie,
Texas 75052
nich.district@gmail.com
817-217-0245

CERTIFICATION

Pursuant to Texas Rule of Appellate Procedure 52.30), I certify that I have reviewed this petition for writ of mandamus, and concluded that every factual statement herein is supported by competent evidence in the appendix or record.

/s/ Harriet Nicholson