Appellate Judges

Texas Second Court of Appeals Reverses Lower Court in Homeowner’s Lawsuit Against Mackie Wolf, a Foreclosure Mill

Texas Second Court of Appeals has considered the record on appeal in this case and holds that there was error in the trial court’s judgment.

THIS IS A TEXAS “FORCIBLE ENTRY AND DETAINER” LAWSUIT

Reversal did require a request for a rehearing by Foster as the first order by Chief Sudderth dismissed her appeal as moot, an issue Foster would argue was erroneous. The relevant orders and filings follow in this article.

COA2 Docket

July 26, 2021

Regina Nachael Howell Foster v. Mackie Wolf Zientz & Mann PC

No. 02-20- 00294-CV (048-317495-20).

The Court of Appeals entered the following judgment or order:

This court has considered the record on appeal in this case and holds that there was error in the trial court’s judgment. It is ordered that the judgment of the trial court is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

It is further ordered that Mackie Wolf Zientz & Mann, P.C. shall pay all of the costs of this appeal, for which let execution issue.

Accordingly, we command you to observe the order of the Court of Appeals.

BY ORDER OF THE COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS, with the seal thereof annexed, at the City of Fort Worth, on July 9, 2021.

APPELLANT’S MOTION FOR REHEARING ON INFO TREE’S MOTION TO DISMISS APPEAL

July 16, 2021

ISSUES PRESENTED

1. Did the panel err in dismissing the appeal as moot without vacating all of the orders of the lower court concerning the forcible detainer action?

2. Did the panel err in dismissing the appeal as moot without first addressing the lower
court’s lack of subject matter jurisdiction?

3. Did the panel err in dismissing the fundamental error of lack of standing to pursue a forcible detainer as moot once the court without subject matter jurisdiction entered a writ of possession?

STATEMENT OF FACTS

1. On August 9, 2017, Info Tree (“InfoTree”) sent Appellant a letter alleging that Apellant’s lease agreement expired on August 12, 2017 (Appendix A page 4)

2. On September 9, 2017 InfoTree filed suit as No. JP07-17-E00086500 alleging that on July 31, 2017 Deutsche conveyed the Defendant’s homestead to InfoTree by Special Warranty Deed after a non-judicial foreclosure sale following a final judgment and opinion in Foster v. DEUTSCHE BANK NAT. TRUST CO., 848 F.3d 403 (5th Cir. 2017), ( Appendix A)

3. On October 5, 2017, a judgment was entered against InfoTree in Case No. JP07-17- E00086500. (Appendix B)

4. On October 24, 2017, InfoTree filed an appeal to the County court of law in Tarrant County as Case No. 2017-006558-1, alleging once again that the July 31, 2017 Special Warranty Deed entitled InfoTree to immediate possession. (Appendix A at 74-75) On November 14, 2017, the county court dismissed Case No. 2017-006558-1 for failing to post bond. (Appendix C).

5. Between August 9, 2017, Defendant Regina Foster has openly and notoriously maintained possession of her family homestead located at 3325 Stoneway Drive Grand Prairie TX 75052. Plaintiff claims 3325 Stoneway Dr. Grand Prairie Texas 75052 as her Constitutionally protected family homestead based on a September 14 2004 Deed of Trust (Appendix E) and a September 14 2004 Promissory Note, only executed by
Appellant’s Estranged husband, Carlos Foster (Appendix D)

6. On December 14, 2020, InfoTree purported to send a letter demanding possession of Appellant’s homestead. (Appendix M)

7. On March 2, 2021 Plaintiff filed a Motion for Summary Judgment by once again alleging that on July 31, 2017 Special Warranty Deed entitled them to immediate possession of Defendant’s homestead. Appendix K)

8. On March 9, 2021 Defendant filed a cross-motion for summary judgment asserting that this court was without jurisdiction because InfoTree’s claims for quiet title in the district court in Cause No. 348-295708-17 is on appeal before the 7th Court of Appeals as Cause
Number 07-20-00031-CV. in the alternate and without waiver the affirmative defenses of res judicata and that Plaintiff’s claims for possession were barred by limitation of Tex Civ. Prac. Rem. Sec. 16.003, Tex Civ. Prac. Rem. Sec. 16.024, and by adverse possession under Tex Civ. Prac. Rem. Sec. 16.030. (MR K)

9. On March 30, 2021 a hearing was held and both motion for summary judgment were denied. (MR K)

10. On April 13, 2021, the court held a hearing on Defendant’s first amended plea to the jurisdiction, denied the plea to the jurisdiction, and proceeded to trial on the merits finding that the limitation of Tex Civ. Prac. Rem. Sec. 16.003, Tex Civ. Prac. Rem. Sec. 16.024, and by adverse possession under Tex Civ. Prac. Rem. Sec. 16,030 were not a bar to InfoTree’s claims for immediate possession, based on a July 31, 2017 Special Warranted after a non-judicial foreclosure following a decision in Foster v. DEUTSCHE BANK NAT. TRUST CO., 848 F.3d 403 (5th Cir. 2017), (MR J)

11. On or about Friday May 14, 2012 InfoTree filed a Motion to Dismiss Appeal.

12. On or about Appellant filed a Response to the Motion to Dismiss and such Response is on file with this court and incorporated hereto by reference in its entirety.

13. On July 1, 2021, the panel issued a memorandum opinion dismissing the appeal as moot, but failing to vacate all lower court orders as required by established precedent when an appeal becomes moot.

ARGUMENT & AUTHORITY

When “seeking rehearing, pursuant to rule 49.1, or further rehearing, pursuant to rule 49.5, a party’s sole purpose is to convince the panel of justices who considered the case to change the decision because it was erroneous—for whatever reason.” Brookshire Brothers, Inc. v. Smith, 176 SW 3d 30, 40-41 (Tex. App. –1st Dist. -2004).

In the instant case, rehearing is sought because the panel decision to dismiss the appeal as moot, without racing the merits of Appellant’s challenge to the county court at law subject matter jurisdiction in a forcible detainer actions against Appellant’s homestead, and to refuse to vacate the county court at law’s final judgment, which awarded possession of Appellant’s homestead to InfoTree conflicts with clearly established precedent and due process.

The panel’s decision conflicts with a published 2nd court of appeals decision in , which followed the established precedent that “‘when a case becomes moot on appeal, all previous orders are set aside by the appellate court and the case is dismissed” and that merely dismissing the appeal “would have the effect of affirming the judgment of the lower court without considering any assignments of error thereto.” Meeker v. Tarrant County College Dist., 317 S.W.3d 754, 763 (Tex. App. 2010).(Citations ommitted).

A.     IF AN APPEAL IS MOOT ALL ORDERS OF THE LOWER COURT MUST BE VACATED

In Marshall v. HOUSING AUTH. CITY SAN ANTONIO,). the Texas Supreme Court expressly held that the court of appeals erred in dismissing an appeal in a forcible detainer moot, like this panel did in the instant case, without vacating the lower court judgement.  198 SW 3d 782, 785 (Tex. 2006).

(“[T]he court of appeals erred in dismissing only the appeal and leaving the trial court’s judgment in place.”) (Citing See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex.2000) (holding that because the case was moot the proper action was to vacate the court of appeals’ judgment and opinion, and dismiss the case as moot);

Speer v. Presbyterian Children’s Home & Serv. Agency, 847 S.W.2d 227, 230 (Tex. 1993) (vacating the judgment of the court of appeals and of the trial court, and dismissing the case as moot)).

The Texas Supreme Court has also expressly held that the “rule has long been established in this court that when a case becomes moot on appeal, all previous orders are set aside by the appellate court and the case is dismissed.”

Texas Foundries v. International Moulders & F. Wkrs., 248 SW 2d 460, 461 (Tex. 1952).

“The course of action followed by this Court in a moot case thus leaves standing no judgment of any kind which can have any detrimental direct or collateral legal consequences.”

Carrillo v. State, 480 SW 2d 612, 619 (Tex: 1972).

As the Texas Supreme Court has explained, “one purpose of vacating the underlying judgment if a case becomes moot during appeal is to prevent prejudice to the rights of parties when appellate review of a judgment on its merits is precluded.”

Marshall v. HOUSING AUTH. CITY SAN ANTONIO, 198 SW 3d 782, 788-789 (Tex. 2006) (Citing Danciger Oil & Ref. Co. v. R.R. Comm’n, 122 Tex. 243, 56 S.W.2d 1075, 1076 (1933);

see also U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 22-25, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) (noting that one purpose of vacating the underlying judgment if a matter becomes moot during appeal is to prevent prejudice to the rights of parties when appellate review of a judgment on its merits is prevented by some reason other than voluntary action of the parties)).

The Panel’s July 1, 2021 Order dismissing the appeal as moot failed to set aside and vacate the all of the orders of the county court, which warded immediate possession of the Appellant’s homestead to Info Tree, as required by established precedent.

See Appendix N.

However, an appeal is not moot when Appellant asserts “a potentially meritorious claim of right to current, actual possession of the [premises].”

Marshall v. Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006).

But if an appeal is moot then the “the court should set aside all previous judgments in addition to dismissing the entire cause.”

CITY OF KRUM, TEXAS v. Rice, 543 SW 3d 747, 750 (Tex. 2017).

So, in the instant case, if the appeal is moot then established precedent requires that “all previous orders [of the County Court at Law] are set aside by the appellate court,” including the final judgment and the writ of possession.

Texas Foundries v. International Moulders & F. Wkrs., 248 SW 2d 460, 461 (Tex. 1952).

In Marshall v. HOUSING AUTH. CITY SAN ANTONIO, the appeal was not moot because she had lost possession, but rather her appeal was moot because “her lease expired on January 31, 2003, and she presents no basis for claiming a right to possession after that date.” 198 SW 3d 782, 787 (Tex. 2006).

Further, in Marshall v. HOUSING AUTH. CITY SAN ANTONIO , the Texas Supreme Court ruled that no collateral consequences or disadvantage would persist “if the judgment is vacated and the case dismissed as moot.” 198 SW 3d 782, 789 (Tex. 2006).

The panel’s July 1, 2021 memorandum opinion utterly misapplied Marshall v. HOUSING AUTH. CITY SAN ANTONIO to rule that the instant appeal was moot while erroneously failing to vacate all orders of the lower court in accordance with established precedent to be applied when an appeal is determined to be moot.

The Texas Supreme Court has recognized that the Texas Legislature did not intend to impair an Appellant’s right to appeal the merits of an adverse judgment, affecting property rights, merely because of the judgment awarded the use and possession of the property to an adverse party.

See Marshall v. HOUSING AUTH. CITY SAN ANTONIO, 198 SW 3d 782, 788 (Tex. 2006). (Citing TEX. CIV. PRAC. & REM. CODE § 34.022 (authorizing recovery of the market value of the person’s property that has been seized through execution of a writ issued by a court if the judgment on which execution is issued is reversed or set aside but the property has been sold at execution)).

Unlike in Marshall v. HOUSING AUTH. CITY SAN ANTONIO , in which the Texas Supreme Court merely considered the effect of an expired lease on the issue of standing to claim a right of immediate possession, this instant case requires this panel to consider whether the lower court committed fundamental error in asserting subject matter jurisdiction over the forcible detainer action against Appellant’s homestead.

Under Texas law, a spouse has a vested homestead interest even where title to the property is held by the other spouse.

Hedtke v. Hedtke, 112 Tex. 404, 410411, 248 S.W. 21, 23 (1923).

Even a “wife’s subsequent abandonment of family homestead did not make prior mortgage on property valid because it was ‘null and void” when made, i.e., when property still impressed with homestead character.”

Laster v. First Huntsville Properties, 826 SW 2d 125, 133 (Tex. 1991) (citing Hays v. Hays, 66 Tex. 606, 608, 1 S.W. 895, 896 (1886)).

A “mortgage or lien that is void because it was illegally levied against homestead property can never have any effect, even after the property is no longer impressed with the homestead character”

Wood v. HSBC BANK USA, NA, 505 SW 3d 542 (Tex. 2016). (Citations omitted). .

A deed of trust standing “‘alone [is] a nullity.’”

Pope v. Beauchamp, 110 Tex. 271, 277 219 S.W. 447 (Tex. 1920) (quoting Carpenter v. Longan, 16 Wall, 271 to 277, 21 L.Ed., 313 (1873).

Thus, under established precedent a deed of trust standing alone cannot create a tenancy at sufferance. A “mortgage or lien that is void because it was illegally levied against homestead property can never have any effect, even after the property is no longer impressed with the homestead character”

Wood v. HSBC BANK USA, NA, 505 SW 3d 542, 545 (Tex. 2016). (Citations omitted).

B.    WHEN THE RECORD WOULD NOT WARRANT SETTING ASIDE THE ORDERS OF THE COURT(S) BELOW, THEN THE CASE IS NOT MOOT

The Texas Supreme has also held that “[i]f the record would not warrant us in setting aside the orders of both courts below, then the case is not moot.” Texas Foundries v. International Moulders & F. Wkrs., 248 SW 2d 460, 461 (Tex. 1952).

“Dismissal for mootness is not a ruling on the merits.”

Speer v. Presbyterian Children’s Home, 847 SW 2d 227, 229 (Tex. 1993).

The Texas Supreme Court reasoned that “[t]o dismiss the appeal only would have the effect of affirming the judgment of the lower court without considering any assignments of error thereto.”

Texas Foundries v. International Moulders & F. Wkrs., 248 SW 2d 460, 461 (Tex. 1952). ( citing McWhorter v. Northcutt, 94 Tex. 86, 58 S.W. 720 (1900);

Danciger Oil & Refining Co. v. Railroad Commission, 122 Tex. 243, 56 S.W.2d 1075 (1933); Freeman v. Burrows, 141 Tex. 318, 171 S. W.2d 863 (1943)).

The U.S. Supreme Court has recognized that the “open courts” provision of the Texas Constitution, Article I, § 13, ‘“guarantees all litigants … the right to their day in court.’”

Pennzoil Co. v. Texaco Inc., 481 US 1, 15 (1987). (Quoting LeCroy v. Hanlon, 713 S. W. 2d 335, 341 (Tex. 1986).

In accordance with the open court provision of the Texas Constitution, Article 1 Sec. 13, courts are to follow the “policy that ‘an adjudication on the merits is preferred in Texas.’”

Sutherland v. Spencer, 376 SW 3d 752, 756 (Tex. 2012) (quoting Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex.1992))

In addressing TEX. PROP. CODE § 24.007, the Texas Supreme Court has expressly held that “there is no language in the statute which purports to either impair the appellate rights of a tenant or require a bond be posted to perfect an appeal.”

Marshall v. HOUSING AUTH. CITY SAN ANTONIO, 198 SW 3d 782, 786 (Tex. 2006) (Citing TEX. PROP. CODE § 24.007).

In addressing the effect of an appeal of right and an appellant’s inability to post supersedeas bond to stop the enforcement of a final judgment pending appeal, the US. Supreme Court acknowledged that “[t]he common thread of [the Texas Supreme Court’s] decisions construing the open courts provision is that the legislature has no power to make a remedy by due course of law contingent on an impossible condition.’”

Pennzoil Co. v. Texaco Inc., 481 US 1, 15 (1987). (quoting Nelson v. Krusen, 678 S. W. 2d 918, 921 (Tex. 1984)).

The Texas Supreme court went on to hold that the tenant’s “failure to supersede the judgment did not divest her of her right to appeal.”

Marshall v. HOUSING AUTH. CITY SAN ANTONIO, 198 SW 3d 782, 786-787 (Tex. 2006) (Citing TEX. R. P. 621, 627; TEX. R. APP. P. 24, 25).

Thus, under the precedent of Marshall v. HOUSING AUTH. CITY SAN ANTONIO and the open court provision of the Texas constitution, the Appellant’s failure to post the $17,000 supersedeas bond does not impair an Appellant’s rights under the open courts provision of the Texas Constitution to perfect her appeal on the merits of the county court at law’s subject matter jurisdiction to hear the instant forcible detainer.

C.     LACK OF SUBJECT MATTER JURISDICTION IS FUNDAMENTAL ERROR THAT MUST BE REVIEWED BY APPELLATE COURTS

“Subject matter jurisdiction is an issue that may be raised for the first time on appeal; it may not be waived by the parties.” Tex. Ass’n of Business v. Air Control Bd., 852 SW 2d 440 , 444 (Tex. 1993)(Citations omitted).

A court’s subject matter jurisdiction is dependent on the “grant of authority to the trial court in the Constitution and the statutes.”

Trejo v. State, 280 S.W.3d 258, 260 (Tex. Crim. App. 2009).

Courts must review the lower courts for lack of subject matter jurisdiction even if “not raised by the parties when the record shows on its face that the court lacked jurisdiction.

In re BLD, 113 S.W.3d 340, 350 (Tex. 2003). (citing McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957) (per curiam). (error is fundamental when the record shows a jurisdictional defect).

For a “state trial courts of limited jurisdiction, the authority to adjudicate must be established at the outset of each case, as jurisdiction is never presumed.”

Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000). (Citations omitted). Established precedent provides that “[w]ithout jurisdiction the court cannot proceed at all in any cause; it may not assume jurisdiction for the purpose of deciding the merits of the case.” Zachry Const. Corp. v. PORT OF HOU. AUTH., 449 S.W.3d 98, 105 (Tex. 2014).(Citations omitted).

The duty of appellate courts to guard against fundamental error for lack of subject matter jurisdiction means that each “appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it.”

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quotation omitted).

Justice courts are courts of limited jurisdiction and expressly do not have jurisdiction of “suits to try title to land.” TEX. GOV’T CODE ANN. § 27.031(b)(4). The Texas legislature has also not provided justice courts with jurisdiction over a “suit for the enforcement of a lien on land.” TEX. GOV’T CODE ANN. § 27.031(b)(5).

A “statutory county court has no jurisdiction to adjudicate title to real estate in a de novo trial following an appeal of a forcible detainer suit from justice court.”

Rice v. Pinney, 51 S.W.3d 705, 708-709 (Tex.App.-Dallas 2001, no pet.).

When “it becomes apparent that a genuine issue regarding title exists in a forcible detainer suit, the court does not have jurisdiction over the matter.”

Mitchell v. Armstrong Capital Corp., 911 SW 2d 169, 171 (Tex. Civ. App. 1995) (Citing Haith v. Drake, 596 S.W.2d 194, 196 (Tex.Civ.App.— Houston [1st Dist.] 1980, writ ref’d n.r.e.);  American Spiritualist Assn. v. Ravkind, 313 S.W.2d 121, 124 (Tex.Civ.App.—Dallas 1958, writ ref’d n.r.e.)). Gibson v. Dynegy Midstream Services, LP, 138 S.W.3d 518 (Tex. App.—Fort Worth– 2004).

            Lack of standing is fundamental error that must be reviewed on appeal

The 2nd court of appeals has held that a justice court and county court at law, on appeal, are without subject matter jurisdiction to hear a forcible detainer when the “issue in A Plus was not one in which the substitute trustee’s deed might be challenged because of a defect in form but instead dealt with a lack of statutory authority to foreclose that created a question about whether the party filing the FED action held any right to possession at all.”

Martinez v. Cerberus SFR Holdings, L.P., 2019 WL 5996984 (Tex.App.—Fort Worth, November 14, 2019, no pet.) (citing A Plus Investments, Inc. v. Rushton, No. 02-03-00174-CV, 2004 WL 868866, at *2 (Tex. App.- Fort Worth Apr. 22, 2004, no pet.) (mem. op.) (Absent the right to foreclose, CitiFinancial could not transfer ownership of the property to A Plus.).

Thus, a lack of statutory authority to foreclose creates a question as to the right of the party filing a FED having any right to possession at all.

The Texas Supreme Court has held that

“after the entry of final judgment . . .the right to foreclose by trustee’s sale was barred, and the attempted exercise of such right was nugatory.”

Vance v. Wilson, 382 SW 2d 107, 110 (Tex. 1964).

In the instant case, the following facts are undisputed:

1 InfoTree purports that it obtained a Special Warranty Deed on July 31, 2017, from Deutsche Bank1

2 Deutsche Bank purported to obtain the Appellant’s homestead at an April 6, 2017 nonjudicial foreclosure sale2 following a holding by the 5th Circuit that “because foreclosure of the property did not occur, we need not revisit the district court’s conclusions as to whether Foster has a viable notice-of-foreclosure cause of action under Section 51.002 of the Texas Property Code.” Foster v. DEUTSCHE BANK NAT. TRUST , 848 F.3d 403, 406-407 (5th Cir. 2017);

and

3 The February 8, 2017 5th Circuit opinion that affirmed the February 22, 20163 federal district court judgment dismissing Regina Nachael Howell Foster’s claims against Deutsche Bank and Ocwen Loan Servicing, based on the defendant Deutsche Bank and Ocwen’s affirmative defense, holding that, regardless of the fact that Regina Nachael Howell Foster had successfully obtained a TRO to stop the scheduled foreclosure pursuant to Tex. Civ. Prac. & Rem. Code 65.041,

“courts in Texas do not recognize an action for attempted wrongful foreclosure”

Foster v. DEUTSCHE BANK NAT. TRUST CO., 848 F.3d 403, 406-407 (5th Cir. 2017)

Thus, under the holding in Vance v. Wilson, Deutsche Bank’s right to foreclose by trustee’s sale was barred by the holding in Foster v. DEUTSCHE BANK NAT. TRUST CO., 848 F.3d 403, 406- 407 (5th Cir. 2017).

Absent the right to foreclose, Deutsche Bank could not transfer ownership of the property to Info Tree4.

A “court has no jurisdiction over a claim made by a plaintiff without standing to assert it.”

DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex.

2008) Neither a justice court, nor a county court at law on appeal, has jurisdiction to determine the right of immediate possession when Info Tree’s has no standing to assert a claim for forcible detainer. “Standing is implicit in the concept of subject matter jurisdiction.” Tex. Ass’n of Business v. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).

ii.         The Affirmative Defense of Adverse Possession Raises the Issue of Title

“[D]ue to the special jurisdictional limitations imposed on justice courts, a plea to the jurisdiction in an eviction case may be based on an affirmative defense raised in the defendant’s pleadings that the trial court cannot resolve apart from determining title.”

Yarbrough v. HOUSEHOLD FINANCE CORP. III, 455 S.W.3d 277, 279 (Tex. App. 2015). (quoting Gibson v. Dynegy Midstream Servs., L.P., 138 S.W.3d 518, 522, 524 (Tex.App.-Fort Worth 2004, no pet.) (defendant raised issue of adverse possession in defensive pleading, and thus, issue of title was so integrally linked that the justice court could not have decided possession without first deciding title)).

It is undisputed that InfoTree filed its first Notice to Vacate on August 9, 20175.

This Court has long ago adopted rule in this State that statutes of limitation begin to run from the time that the right of action accrues.

Warnecke v. Broad, 161 S.W.2d 453, 454 (Tex. 1942).

The Texas Legislature has expressly provided that “[i]f an action for the recovery of real property is barred under this chapter, the person who holds the property in peaceable and adverse possession has full title, precluding all claims.”

Tex. Civ. Prac. & Rem. Sec. 16.030 (Emphasis added). Pursuant to Texas Civil Practices and Remedies Code Sec. 16.024.

Under the plain meaning of the statute “[a] person must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title not later than three years after the day the cause of action accrues.”

Tex. Civ. Prac. & Rem. Sec. 16.024. (Emphasis added).

Under Texas law:

A person must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title not later than three years after the day the cause of action accrues.”

Tex. Civ. Prac. & Rem. Sec. 16.024. (Emphasis added).

The “enactment of statutes of limitations is, of course, the prerogative of the Legislature.” SV v. RV, 933 S.W.2d 1, 3 (Tex. 1996). The Texas Legislature has expressly provided that: If an action for the recovery of real property is barred under this chapter, the person who holds the property in peaceable and adverse possession has full title, precluding all claims.”

Tex. Civ. Prac. & Rem. §. 16.030 (Emphasis added)

InfoTree filled the lawsuit for forcible detainer, that is subject to this motion to dismiss, more than three (3) years after InfoTree sent out an August 9, 2017 Notice to vacate, based on the July 31, 2017 Special Warranty Deed and the April 6, 2017 Foreclosure Sale Deed,6 over three (3) after the final judgment rendered against InfoTree in case number JP07-17-E00086500 on

October 5, 2017 and over three (3) years from the date the County Court had previously ruled that Case No. 2017-006558-1 was dismissed on November 24, 2017.

When appeal is taken from a void judgment, the appellate court must declare the judgment void.

See Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 827 (1961)( While it is wholly unnecessary to appeal from a void judgment, it is nevertheless settled that an appeal may be taken and the appellate court in such a proceeding may declare the judgment void.”)

A judgment is void “when it is clear that the court rendering the judgment had no jurisdiction over the parties or subject matter, no jurisdiction to render judgment, or no capacity to act as a court.” State ex rel. Latty v. Owens, 907 SW 2d 484, 485 (Tex. 1995)(citing Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990) (per curiam) (citing Cook v. Cameron, 733 S.W.2d 137, 140 (Tex.1987); Browning v. Placke, 698 S.W.2d 362 (Tex. 1985) (per curiam)); see also State Bar of Texas v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994); Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex.1973).

The panel’s July 1, 2021 memorandum opinion erroneously postulates that Appellate courts do not have a duty to review a lower court’s ruling on immediate possession in a forcible detainer for fundamental error if a party failure to post a supersedes bond and involuntarily loses possession due to the actions of the lower court raises serious Due Process, Equal Protection and Open Court concerns. because “lack of jurisdiction is fundamental error” and cannot be waived.

Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991).

1 Appendix A page 12-13
2 Appendix A page 5-9
3 Appendix M
4 Appendix A page 12-13
5 Appendix A page 4
6 Appendix A page 4-8

CONCLUSION AND PRAYER

WHEREFORE PREMISES CONSIDERED, Appellant prays that the Court GRANT Appellant’s Motion for Rehearing and DENY Info Tree’s Motion to Dismiss Appeal and proceed to declare the judgment void for lack of jurisdiction and for any further relief to which Appellant may be entitled, at law or equity, in the alternative, without waiver, Appellant prays that this court vacate all orders awarding InfoTree possession of Appellant’s homestead if this appeal is moot.

Respectfully submitted:

/s/Regina Nachael Howell Foster

Regina Nachael Howell Foster
Plaintiff/Pro Se
3325 Stoneway Dr.
Grand Prairie, TX 75052
817-2173933

Rnachael@gmail.com

CERTIFICATE OF SERVICE

Pursuant to Rule 6.3 and 9.5(b), (d), and (e), of the Texas Rules of Appellate Procedure, I certify that I have served this document on all other parties which are listed below on July 16, 2021, as follows:

Jeffrey Sprigs
jsprigg.esq@gmail.com
Attorney for Info Tree

/s/Regina Nachael Howell Foster
Regina Nachael Howell Foster

 

CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer Microsoft Word 2010 and contains 4,477 words, as determined by the computer software’s word-count function, excluding the sections of the document listed in Texas Rule of Appellate Procedure 9.4(i)(1).

/s/Regina Nachael Howell Foster
Regina Nachael Howell Foster

A Landowner’s Fight to Prevent The Big Skim in San Antonio Bankruptcy Court

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Price Doesn’t Meet the High Standards Needed for a Pro Se Coming Before the Court, Sayeth the Fifth Circuit

What’s interesting here is Stanley Price complained about lower court Judge Vance, who was succeeded, albeit temporarily, by Judge Engelhardt who sat on the latest CA5 appeal.

Update: A Texas Lawyer’s Personal Battle and Foreclosure Defense v Deutsche Bank National Trust Co and Ocwen Loan Servicing LLC

The 5th Circuit is indeed trying to ignore the controlling precedent in Texas regarding the deed of trust as nothing more than an appurtenance to the promissory note – Foster.

Before Sudderth, C.J.; Kerr and Birdwell, JJ.

Memorandum Opinion by Chief Justice Sudderth

MEMORANDUM OPINION

Appellant Regina Nacheal Howell Foster’s home was foreclosed upon and then sold to appellee Info Tree Investments & Management, LLC. See Foster v. Infotree Invs. & Mgmt., LLC, No. 07-20-00031-CV, 2021 WL 298446, at *1 (Tex. App.—Amarillo Jan. 28, 2021, pet. filed) (mem. op.) (affirming summary judgment for Info Tree on lawsuit Foster filed challenging the validity of homestead lien).

Info Tree served Foster with a notice to vacate and prevailed in the justice court and in the trial de novo in the county court at law regarding its right to possession of the property.   The judgment awards possession and court costs but does not award damages or attorney’s fees.

See Ratliff v. Homes by Ashley, Inc., No. 02- 20-00014-CV, 2020 WL 1057320, at *1 (Tex. App.—Fort Worth Mar. 5, 2020, no pet.) (mem. op.) (noting that a forcible-detainer appeal becomes moot upon an appellant’s eviction from the property unless the appellant holds and asserts a meritorious claim of right to current, actual possession of the property or unless damages or attorney’s fees remain at issue).

Foster appealed to this court, but she did not timely file the required supersedeas bond.

See Tex. Prop. Code Ann. § 24.007 (stating that a county court judgment may not be stayed pending appeal unless the appellant files a supersedeas bond in the amount set by the court within 10 days of the judgment’s signing).

Instead, Foster filed a petition for writ of mandamus in the Supreme Court of Texas, seeking it to order the county court to vacate its judgment.

Only after the deadline for filing her supersedeas bond had passed did Foster file an emergency motion to stay enforcement of the judgment and a motion to review supersedeas in this court.1

This court denied her motion.

On May 7, 2021, Info Tree filed a motion to dismiss Foster’s supreme court mandamus action based on mootness, arguing that Foster was no longer in possession of the property. The supreme court granted Info Tree’s motion and dismissed the mandamus action as moot on May 14, 2021. Info Tree then filed a motion to dismiss the appeal in this court on the same basis, and to its motion it attached a copy of the April 29, 2021 writ of possession and the constable’s return showing execution of the writ on May 7, 2021, at 10:00 a.m.

Foster did not initially file a response to Info Tree’s motion to dismiss her appeal for mootness. Accordingly, we sua sponte requested that she file a response, expressing our concern that we lacked jurisdiction over the appeal and informing her that we could dismiss the appeal unless she filed a response showing grounds for continuing the appeal.

Foster filed a response, but it does not show grounds for continuing the appeal. Accordingly, we grant Info Tree’s motion and dismiss the appeal as moot because a present controversy no longer exists between the parties.

See Tex. R. App. P. 42.3(a), 43.2(f); State ex rel. Best v. Harper, 562 S.W.3d 1, 6 (Tex. 2018) (stating that a court loses jurisdiction when a case becomes moot);

Gillespie v. Erker, No. 02-20-00331-CV, 2021 WL 733084, at *1–2 (Tex. App.—Fort Worth Feb. 25, 2021, no pet.) (mem. op.) (noting that the only issue in a forcible-detainer action is the right to actual possession of the property).

Delivered: July 1, 2021

1 Foster also sought an ex parte temporary restraining order in the trial court on May 4, 2021, but it was dissolved two days later.

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