The Appointed Auctioneer Has An Important and Independent Role in Texas NonJudicial Foreclosures

REPLY TO RESPONSE TO MOTION FOR PARTIAL TRADITIOINAL SUMMARY JUDGMENT

NOW COMES Regina Nachael Howell Foster and files this Reply to the Response to Plaintiff’s Motion for Partial Traditional Summary Judgment and in support would respectfully show:

BACKGROUND

On September 30, 2024, Plaintiff filed a Motion for partial Traditional Summary judgement.

This Motion is on file with this Court, together with its supporting affidavits and exhibits and is incorporated hereto in its entirety.

On October 17, 2024, Mackie Wolf filed a Response, which is on file with this court and incorporated hereto in it’s entirety.

ARGUMENT AND AUTHORITY

A court must grant a “traditional” motion for summary judgment “forthwith if [the summary judgment evidence] show[s] that … there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out.”

Draughon v. Johnson, 631 SW 3d 81, 87 (Tex. 2021) (Citing TEX. R. CIV. P. 166a(c)).

An issue is conclusively established “if reasonable minds could not differ about the conclusion to be drawn from the facts in the record.”

Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex. 1998).

“If the party opposing a summary judgment relies on an affirmative defense, he must come forward with summary judgment evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment.”

Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (citing Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979)).

Conclusory statements are not credible or susceptible to being readily controverted.

Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996).

An affiant’s belief about the facts is legally insufficient.

Kerlin v. Arias, 274 SW 3d 666, 668 (Tex. 2008) (citing Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996);

Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984)).

Under the doctrine of respondeat superior, an employer is vicariously liable for the negligence of an agent or employee acting within the scope of his or her agency or employment, although the principal or employer has not personally committed a wrong.

Baptist Memorial Hosp. System v. Sampson, 969 SW 2d 945, 947 (Tex. 1998) Citing DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex.1995);

“The most frequently proffered justification for imposing such liability is that the principal or employer has the right to control the means and methods of the agent or employee’s work id.

(citing Newspapers, Inc. v. Love, 380 S.W.2d 582, 585-86 (Tex.1964)).

A “prima facie” case “refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted.”

Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 54 (Tex. 2021) (Citing In re Lipsky, 460 S.W.3d at 590).

“It is the ‘minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.'”

Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 54 (Tex. 2021) Lipsky (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004)).

In Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.1981), the Texas Supreme Court stated:

The essence of gross negligence is not the neglect which must, of course, exist. What lifts ordinary negligence into gross negligence is the mental attitude of the defendant; that is what justifies the penal nature of the imposition of exemplary damages.

The plaintiff must show that the defendant was consciously, i.e. knowingly, indifferent to his rights, welfare and safety.

In other words, the plaintiff must show that the defendant knew about the peril but his acts or omissions demonstrated that he didn’t care.

616 S.W.2d 911, 922 (Tex.1981)

Under Texas law, because of the harsh consequences of a nonjudicial foreclosure and the constitutional mandate for due process, intent to act recklessly or with gross negligence may be infer when Defendant plainly ignored both the statutory and contractual notices that were mandated before Plaintiff’s constitutionally protected homestead rights were taken, when controlling precedent establishes:

The term “notice of acceleration” is used by the parties to express different concepts.

Ogden refers to notice of intent to accelerate; Gibraltar refers to notice that the debt has been accelerated.

Although the cases do not always clearly distinguish between the two, both types of notices are required.

Notice of intent to accelerate is necessary in order to provide the debtor an opportunity to cure his default prior to harsh consequences of acceleration and foreclosure.

Proper notice that the debt has been accelerated, in the absence of a contrary agreement or waiver, cuts off the debtor’s right to cure his default and gives notice that the entire debt is due and payable.

See Faulk v. Futch, 147 Tex. 253, 214 S.W.2d 614 (1948).

Notice that the debt has been accelerated, however, is ineffective unless preceded by proper notice of intent to accelerate.

Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863 (Tex.1975).

Ogden v. Gibraltar Sav. Ass’n, 640 SW 2d 232, 233-234 (Tex. 1982)

Mackie Wolf has not disputed the age-old controlling precedent in Texas that “’[a] trustee has no power to sell the debtor’s property, except such as may be found in the deed of trust.’”

University Sav. Ass’n v. Springwoods Shopping Ctr., 644 SW 2d 705, 706 (Tex. 1982) (Quoting Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671, 675 (1942);

Further, the Texas constitution is clear that “No … lien on the homestead shall ever be valid unless it secures a debt described by this section[.]”

Wood v. HSBC BANK USA, NA, 505 SW 3d 542, 544 (Tex. 2016) (Quoting TEX. CONST. art. XVI, § 50(c)).

A “loan secured by a lien that was not created with the consent of each owner and each owner’s spouse is not “a debt described by this section” and is therefore invalid..”

Kyle v. Strasburger, 522 SW 3d 461, 465 (Tex: 2017) (quoting Wood, 505 S.W.3d at 548-49).

The plain text of TEX. CONST. art. XVI, § 50(c) expressly provides that:

No mortgage, trust deed, or other lien on the homestead shall ever be valid unless it secures a debt described by this section, whether such mortgage, trust deed, or other lien, shall have been created by the owner alone, or together with his or her spouse, in case the owner is married.

All pretended sales of the homestead involving any condition of defeasance shall be void.

TEX. CONST. art. XVI, § 50(c)(emphasis added)

Under Texas law, constitutional “compliance is measured by the loan as it exists at origination.”

Garofolo v. Ocwen Loan Servicing, LLC, 497 SW 3d 474, 478 (Tex. 2016).

In the instant case, it is undisputed and uncontroverted that in Regina Nachael Howell Foster did not sign the promissory note, giving rise to the debt that was purportedly secured by a lien on Plaintiff’s uncontroverted homestead1.

Neither the trustee, named in the deed of trust, nor a substitute trustee has the power to sell a homestead when the loan is not constitutionally compliant at the time of origination.

Laster, 826 S.W.2d at 129; Hruska, 747 S.W.2d at 784;

Burkhardt v. Lieberman, 138 Tex. 409, 159 S.W.2d 847, 850-51 (1942);

1 See Response to Motion for Partial Summary judgment, affidavit of Keller Mackie, Exhibit A-1

Lincoln v. Bennett, 138 Tex. 56, 156 S.W.2d 504, 505-07 (1941); Kepley v. Zachry, 131 Tex. 554, 116 S.W.2d 699, 700, 702 (1938); Cocke v. Conquest, 120 Tex. 43, 35 S.W.2d 673, 678 (1931); Toler v. Fertitta, 67 S.W.2d 229, 230 (Tex. Comm’n App.1934, judgm’t adopted); Collier v. Valley Bldg. & Loan Ass’n, 62 S.W.2d 82, 84 (Tex. Comm’n App.1933, holding approved); Fidelity Sav. & Loan Ass’n of Port Arthur v. Baldwin, 416 S.W.2d 482, 484 (Tex.Civ.App.-Beaumont 1967, writ ref’d n.r.e.); Lewis v. Brown, 321 S.W.2d 313, 317 (Tex.App.-Fort Worth 1959, writ ref’d n.r.e.); Kemper v. Freeman, 254 S.W.2d 837, 838 (Tex. App.-Fort Worth 1953, no writ); Hicks v. Wallis Lumber Co., 70 S.W.2d 440, 440 (Tex.Civ.App.-San Antonio 1934, no writ); see also In re Daves, 770 F.2d 1363, 1366-67 (5th Cir.1985);

While the recent cases of Wood, Kyle, and Garofolo analyze home-equity loans, under Tex. Const. Art. 16 Sec. 50(a)(6), the Texas Supreme Court has expressly recognized that “Section 50(c), on the other hand, expressly addresses the validity of any homestead lien, broadly declaring the lien invalid if the underlying loan does not comply with section 50.”

Wood v. HSBC BANK USA, NA, 505 SW 3d 542, 546 – Tex: Supreme Court 2016 (Citing 50. TEX. CONST. art. XVI, § 50(c)). (Emphasis added).

Under Texas law, the word “any” has been judicially construed to mean:

“each” or “every” or “all”.

Hime v. Galveston, 268 S.W.2d 543, 545 (Tex. Civ. App. 1954) (Citing Black’s Law Dictionary, 3rd Ed., p. 119);

Roedler v. Vandalia Bus Lines, Inc., 281 Ill. App. 520, 523 (1935); 3A Words & Phrases, p. 53.

Thus, a promissory note, secured by a deed of trust on a family homestead, that is not signed by BOTH spouses is not a debt that was created “together with his or her spouse, in case the owner is married. “

Tex. CONST. Art. 16 Sec 50(c).

In the instant case, it is uncontroverted that Carlos Foster was married to Regina Nachael Howell Foster when the deed of trust was executed to secure the repayment of the promissory note, that was only enforceable against Carlos Foster, under the Texas Statute of Fraud2.

The deed of Trust expressly lists Carlos Foster as a “married man” on the very first page3.

“What the Constitution forbids cannot be evaded even by agreement of the parties,”

Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542, 545 (Tex. 2016). (citing Tex. Land & Loan Co. v. Blalock, 76 Tex. 85, 13 S.W. 12, 13 (Tex. 1890)

and what is “never valid is always void,”

Inge v. Cain, 65 Tex. 75, 80 (1885);

see also Laster v. First Huntsville Props. Co., 826 S.W.2d 125, 130 (Tex. 1991)

(“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.”)).

Mackie Wolf fails to raise a material fact regarding the utter lack of compliance with the plain meaning of section 50(c) of article 16 of the Texas Constitution nor has Mackie Wolf advanced any meritorious legal arguments or raise any genuine

Mackie Wolf does not contest that the plain meaning of the Texas Property Code only authorizes a “mortgage servicer may authorize an attorney to appoint a substitute trustee or substitute trustees on behalf of a mortgagee4

”Under Texas law, the only person authorized to conduct a nonjudicial foreclosure, in accordance with a constitutionally complaint mortgage is the “trustee [who] has a separate capacity and is imposed with a particular legal responsibility.”

Hammonds v. Holmes, 559 S.W.2d 345, 347 (Tex. 1977).

Under Texas law, a “trustee has a separate capacity and is imposed with a particular legal responsibility. He must act with absolute impartiality and fairness to the grantor in performing the powers vested in him by the deed of trust.”

Id.(Citing First Federal Savings & Loan Assoc. v. Sharp, 359 S.W.2d 902

(Tex.1962); Fuller v. O’Neal, 69 Tex. 349, 6 S.W. 181 (1887)).

As the Texas Supreme Court has

2 See Response to Motion for Summary Judgment affidavit of Keller Mackie, exhibit A-2

3 Id.

4 Tex. Prop. Code § 51.0075(d)

expressly held, “[a]fter default only the trustee, or a duly substitute trustee, could sell the property [and] [a] sale by a third party was wholly unauthorized.”

Slaughter v. Qualls, 139 Tex. 340, 346, 162 S.W.2d 671, 675 (1942) ((Citing Fuller v. O’Neil, 69 Texas 49, 6 S.W. 181, 5 Am.

St. Rep. 59; Estelle v. Hart (Com. App.), 55 S.W. (2d) 510)). (Emphasis added).

Thus, in light of controlling Texas Supreme Court precedent, Mackie Wolf’s argument that they were acting simply as “foreclosure counsel” when Mackie Wolf purported to sell Plaintiff’s constitutionally protected homestead at a foreclosure sell is legally without any merit.

The affirmative defense of “[r]es judicata (claim preclusion) requires:

(1) a prior final judgment on the merits by a court of competent jurisdiction;

(2) identity of parties or those in privity with them;

and

(3) a second action based on the same claims that were raised of could have been raised in the first action.

Amstadt v. U.S. Brass Corp, 919 S.W.2d 644, 652 (Tex. 1996).

However, the Texas Supreme Court has repeatedly “recognized—as a ‘logical corollary’ to the general rule—that ‘the res judicata effects of an action cannot preclude litigation of claims that a trial court explicitly separates or severs from that action.’”

Rosetta Resources Operating, LP v. Martin, 645 SW 3d 212, 226 (Tex. 2022) (Quoting Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381, 384 (Tex. 1985)

(holding that, where trial court granted separate trials for intervention claim and malpractice counterclaim, judgment in first action did not have a res judicata effect on second);

Morrison v. St. Anthony Hotel, 295 S.W.2d 246, 249 (Tex. App.-San Antonio 1956, writ ref’d n.r.e.) (concluding that prior severed appeal was not res judicata because third party was not part of appeal); see also Law Offices of Robert D. Wilson v. Tex.

Univest-Frisco, Ltd., 291 S.W.3d 110, 114 (Tex. App.-Dallas 2009, no pet.)

(“The actions taken in the initial suit had no effect on the new cause, which had been severed by the trial court.”)).

In the instant case this Court is asked to take judicial notice that on APRIL 1, 2020, in cause number 048-291335-17, styled Foster v. Mackie Wolf, et al, Defendants Ocwen Loan Servicing, LLC (“Ocwen”) and Deutsche Bank National Trust Company, as Trustee for Morgan Stanley ABS Capital I Inc. Trust 2005-HE1, Mortgage Pass-Through Certificates, Series 2005 HE1

(“Deutsche Bank”) filed a An Opposed Motion to Sever requesting that the Court sever all of Plaintiff’s claims against them from the rest of the suit and assign it a new cause number.

In Hammonds v. Holmes, the Texas Supreme Court found that the doctrine of res judicata did not apply to defendant Ed Holmes, an employee of the Bank, who legally deemed to be not in privy with the bank because Ed Holmes was acting as the “trustee in the deed of trust, and plaintiffs allege that he foreclosed without cause to do so and that he acted maliciously.”

Hammonds v. Holmes, 559 SW 2d 345, 347 (Tex. 1977).

The Texas Supreme Court went on to hold that because a trustee has an independent duty to the homeowner and that the trustee conducting a foreclosure under a deed of trust “cannot be said as a matter of law that he acted in the foreclosure in the capacity of bank employee.”

Id.

Based on the controlling precedent of Hammond v..Holmes and the plain legislative intent of Tex. Prop. Code 51.0074(b)(2),

Therefore, Mackie Wolf’s reliance on Porterfield v. Cenlar FSB, Case No. 05-14-00663-CV, 2016 Tex. App. LEXIS 2677, * 16 (Tex. App.—Dallas, March 15, 2016), for the proposition that one conducting a non-judicial foreclosure under the Texas Property Code is in privy with Ocwen and Deutch Bank, after the granting the motion to sever, is completely misplaced.

This case relied upon by Mackie Wolf did not involve claims that had been severed from the original lawsuit, rather “Porterfield sued Barrett Daffin in both the First and Second Lawsuits [but] Porterfield did not sue Cenlar and Morgan Stanley in the First Lawsuit..”

Porterfield v. Cenlar FSB, No. 05-14- 00663-CV, 2016 Tex. App. LEXIS 2677, at *15 (Tex. App. Mar. 15, 2016).

The instant case is analogous to the Texas Supreme Court’s holding that “Plaintiffs’ cause of action against Ed Holmes is severed from the cause of action against Zane Stites and Corsicana National Bank.”

Hammonds v. Holmes, 559 S.W.2d 345, 347 (Tex. 1977)

The case is also distinguishable because the law firm, acting as a substitute trustee, conducting the foreclosure sale, “Barrett Daffin emailed Porterfield a copy of the notice of default [and intent to accelerate in late September, well before the foreclosure sale on February 5, 2008.”

Porterfield v. Cenlar FSB, No. 05-14- 00663-CV, 2016 Tex. App. LEXIS 2677, at *16-18 (Tex. App. Mar. 15, 2016).

In light of the independent duty of the trustee, or substitute trustee, to act with complete impartiality, the Texas Supreme Court has reiterated that “compliance with the notice condition contained in the deed of trust and as prescribed by law is a prerequisite to the right of the trustee to make the sale.”

JASPER FEDERAL SAV. & LOAN v. Reddell, 730 SW 2d 672, 674 (Tex. 1987) (citing Houston First American Sav. v. Musick, 650 SW 2d 764, 768 (Tex. 1983). (Emphasis added)

Thus, just because a bank cannot be held financially liable for lack of notice does not mean that a substitute trustee cannot be held liable for selling a homestead when the statutory and contractual prerequisites that could have given rise to the trustee’s right to sell have not been satisfied, as required by law.

If a deed of trust has an acceleration clause then “Effective acceleration requires two acts:

(1) notice of intent to accelerate,

and

(2) notice of acceleration.”

HOLY CROSS CHURCH OF GOD IN CHRIST v. Wolf, 44 SW 3d 562, 566 (Tex. 2001) (Citations omitted).

In its response to summary judgment, Mackie Wolf does not raise a material fact regarding the lack of notice of default or the lack of notice of intent to accelerate, nor does Mackie Wolf dispute that the controlling Texas precedent holds that “[c]ompliance with the notice condition contained in the deed of trust and as prescribed by law is a prerequisite to the right of the trustee to make the sale.

Hous. First Am. Sav. v. Musick, 650 S.W.2d 764, 768 (Tex. 1983) (citing Goode v. Davis, 135 S.W.2d 285, 292 (Tex. Civ. App. — Fort Worth 1939, writ dism’d judgmt cor.); Childs v. Hill, 20 Tex.Civ.App. 162, 49 S.W. 652 (Tex. Civ. App. 1898, no writ)).

The U.S. Supreme Court has also held that the “state procedures for creating and enforcing such liens are subject to the strictures of due process.”

Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 85-86 108 S. Ct. 896, 99 L. Ed. 2d 75 (1988).(Citing Mitchell v. W. T.

Grant Co., 416 U. S. 600, 604 (1974); Hodge v. Muscatine County, 196 U. S. 276, 281 (1905)).

Mackie Wolf simply tries to make a frivolous circular argument about intential breach of impartiality because the “notices concerned a debt owed by the obligor (Mr. Foster) as well as the right to foreclose a lien interest against real property of which Plaintiff was a mortgagor.5”

Under Texas law a “trustee has a separate capacity and is imposed with a particular legal responsibility. He must act with absolute impartiality and fairness to the grantor in performing the powers vested in him by the deed of trust.”

Hammonds v. Holmes, 559 SW 2d 345, 347 (Tex.

1977) (Citing First Federal Savings & Loan Assoc. v. Sharp, 359 S.W.2d 902 (Tex.1962); Fuller v. O’Neal, 69 Tex. 349, 6 S.W. 181 (1887).

(The trustee has a separate capacity and is imposed with a particular legal responsibility. He must act with absolute impartiality and fairness to the grantor in performing the powers vested in him by the deed of trust.”)). Under the Texas

Property Code, the duties of a person authorized to conduct a non-judicial foreclosure sale as follows:

b)  A trustee may not be:

(1)  assigned a duty under a security instrument other than to exercise the power of sale in accordance with the terms of the security instrument; or

(2)  held to the obligations of a fiduciary of the mortgagor or mortgagee.

5 Defendant’s Response to Plaintiff’s Motion for Summary Judgment page 10

Tex. Prop. Code 51.0074(b)(2)

Under Texas law parties “cannot waive, or renounce the guarantee, or immunity, with which the Constitution shields the [homestead] property.”

Sampson & Keene v. Williamson, 6 Tex. 102, 110 (1851).

Mackie Wolf does not dispute that the controlling Texas Supreme Court precedent and United States Supreme Court precedent Texas courts are “are obligated to follow only higher Texas courts and the United States Supreme Court.”

Penrod Drilling Corp. v. Williams, 868 SW 2d 294, 296 (Tex. 1993).

Under Texas law, homestead claimant, such as the wife, in the instant case, “has standing to show the invalidity of a trustee’s sale because h[er] interest in the property is affected by such a sale.”

Am. Sav. & Loan Ass’n of Houston v. Musick, 531 SW 2d 581 (Tex. 1975 )(Citing Estelle v. Hart, 55 S.W.2d 510, 513 (Tex.Com.App., 1932)).

Under Texas law, “attorneys are not protected from liability to non-clients for their actions when they do not qualify as ‘the kind of conduct in which an attorney engages when

discharging his duties to his client.'” Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 47 (Tex. 2021) (citations omitted) The Texas Supreme Court has further explained that “if an

attorney engages in conduct that is not “lawyerly work” or is “entirely foreign to the duties of a lawyer” or falls outside the scope of client representation, the attorney-immunity defense is

inapplicable.” Taylor v. Tolbert, 644 S.W.3d 637, 646 (Tex. 2022) “Not just any action taken

when representing a client qualifies for immunity.” Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 47 (Tex. 2021). Under Texas law, the property code provides that “One or more

persons may be authorized to exercise the power of sale under a security instrument.” Tex. Prop. Code. 51.0074(a).

The Texas Property Code does not require a particular skill to serve as a trustee, rather the law requires and demands that the duties of the trustee be exercised with the utmost impartiality. Mackie Wolf had the burden to show that there is a material fact regarding

its conduct in order to use the affirmative defense to defeat Plaintiff’s partial traditional summary judgment.

Mackie Wolf has not met this burden, since the facts are undisputed that Mackie Wolf acted as a trustee by filing the Foreclosure Sale Deed and the affidavit of misrepresenting compliance with Tex. Prop. Code 51.002(d) and Tex. Prop. Code 51.002(d)6 in the county property records of Tarrant County.

Under Texas law “there is a wide range of criminal conduct that is not within the ‘scope of client representation’ and [is] therefore ‘foreign to the duties of an attorney.'”

Taylor v. Tolbert, 644 S.W.3d 637, 648 (Tex. 2022). (Citations omitted)

In Chu v. Hong, [the Supreme Court of Texas] recognized that “[a]n attorney who personally steals goods or tells lies on a client’s behalf may be liable for conversion or fraud in some cases.”

Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 483 (Tex. 2015) (Quoting 249 S.W.3d 441, 446 (Tex. 2008)).

“Conduct is not the kind of conduct attorney immunity protects ‘simply because attorneys often engage in that activity’ or because an attorney performed the activity on a client’s behalf.

Rather, the conduct must involve “the uniquely [ lawyerly capacity” and the attorney’s skills as an attorney.

For example, a lawyer who makes publicity statements to the press and on social media on a client’s behalf does ‘not partake of ‘the office, professional training, skill, and authority of an attorney’’ because ‘[a]nyone—including press agents, spokespersons, or someone with no particular training or authority at all—can publicize a client’s allegations to the media.

Immunity attaches only if the attorney is discharging ‘lawyerly’ duties to his or her client Taylor v. Tolbert, 644 S.W.3d 637, 646 (Tex. 2022).

Whether Mackie Wolf conduct in selling Plaintiff’s homestead property at a foreclosure sale is the conduct that only an attorney could provide is a question of law.

6 See Response to Motion for summary Judgment, affidavit of Keller Mackie, Exhibit. A-5

“Common-law defenses may be abrogated by statute, but under Texas law, statutes purporting to abrogate common-law principles must do so either expressly or by necessary implication

“Taylor v. Tolbert, 644 S.W.3d 637, 649 (Tex. 2022).

A statute’s “express terms or necessary implications” must indicate clearly the Legislature’s intent to abrogate common-law rights

Forest Oil Corp. v. El Rucio Land & Cattle Co., 518 S.W.3d 422, 428 (Tex. 2017).

In addressing whether the common law defense of attorney immunity could be asserted as an affirmative defense to a federal wiretapping statute, the Texas Supreme Court looked directly to the plain text of the statute itself to address the statute applies to “any person” “[e]xcept as otherwise specifically provided” in the statute.100

This exclusivity language makes the terms of the federal statute materially different from the Texas statute.

Based on this “plain and explicit” and “clear and unambiguous” language, federal courts have rejected exceptions and immunities that are not specifically enumerated in the statute.

Taylor v. Tolbert, 644 S.W.3d 637, 655 (Tex. 2022)

Under Texas law a, person, including an attorney, “may not make, present, or use a document or other record with knowledge that the document or other record is a fraudulent court record or a fraudulent lien or claim against real or personal property or an interest in real or personal property.”

Tex. Civ. Prac. & Rem. Code 12.002(a)(1).

Thus the use of the words “a person” in the statue infers that the statute was meant to apply to all person without the benefit of the common law defense of attorney immunity.

Judicial estoppel may be based only on a sworn statement made in a prior judicial proceeding.

See Long v. Knox, 291 S.W.2d 292, 295 (Tex. 1956)

(“Under the doctrine of judicial estoppel, as distinguished from equitable estoppel by inconsistency, a party is estopped merely by the fact of having alleged or admitted in his pleadings in a former proceeding under oath the contrary to the assertion sought to be made.” (emphasis added)).

Mackie Wolf has not pointed to any sworn statements made by Regina Nachael Howell Foster that would raise a material fact in dispute to defeat summary judgment.

“To recover under chapter 392 of the Texas Finance Code, a plaintiff must prove that:

(1) a debt collector used “a fraudulent, deceptive, or misleading representation that employs” one of several prohibited practices, including, as pleaded here, “misrepresenting the character, extent, or amount of a consumer debt, or misrepresenting the consumer debt’s status in a judicial or governmental proceeding”;

and

(2) the plaintiff sustained actual damages as a result.”

Kyle v. Strasburger, No. 13-13-00609-CV, 2019 Tex. App. LEXIS 2725, at *29-30 (Tex. App. Apr. 4, 2019) (Citing Tex. Fin. Code Ann. §§ 392.304(a)(8)).

A violation of chapter 392 is also a deceptive trade practice actionable under the DTPA.

Id.(Citing § 392.404(a)).

The Texas Supreme Court, in Interpreting the Texas Constitution’s homestead protection’s have long ruled that the “mortgage in this case, intended to secure the separate debt of the husband, is but an incident to the debt; and the wife was incapable of so contracting as to make herself liable for her husband’s debts.”

Sampson & Keene v. Williamson, 6 Tex. 102, 109 (1851)

In Lofton v. Allstate Ins. Co., 895 SW 2d 693, 694 (Tex. 1995), the Texas Supreme Court held that “attorney’s uncontroverted affidavit may establish a date of mailing for compliance with TEX.R.APP.P. 4(b), commonly known as the mailbox rule.

A majority of the Court holds that it can.

As the United Staes Supreme Court explained

“A similar understanding underlies the venerable “mailbox rule.”

As first-year law students learn in their course on contracts, there is a presumption that a mailed acceptance of an offer is deemed operative when “dispatched” if it is “properly addressed.”

Republic of Sudan v. Harrison, 587 U.S. 1, 139 S. Ct. 1048, 1057 203 L. Ed. 2d 433 (2019)(Citing Restatement (Second) of Contracts § 66, p. 161 (1979) (Restatement); Rosenthal v. Walker, 111 U.S. 185, 193, 4 S.Ct. 382, 28 L.Ed. 395 (1884).

“The date a party “image the file to its network” has nothing to do with when a document was mailed. Nothing in Mackie Wolf’s Wolf conclusory affidavit, citing to Exhibit A controverts Plaintiff’s sworn statement of when the December 15, 2017 letter in the United States mail, CMRRR,

SINCE Mackie Wolf did not “image” the envelope bearing the postmark date there is no competent summary judgment raising a fact question on the date the December 15, 2017 letter was received under the mailbox rule.

“Nothing within Mackie Wolfs records reflects receipt of the correspondence by Mackie Wolf in and around December 15, 2016.7”

Testimony by an interested witness may establish a fact as a matter of law only if the testimony could be readily contradicted if untrue, and is clear, direct and positive, and there are no circumstances tending to discredit or impeach it.

Lofton v. Texas Brine Corp., 777 SW 2d 384, 386 (Tex. 1989) (Citing Gevinson v. Manhattan Construction Co., 449 S.W.2d 458, 467 (Tex.1969).

Therefore, Texas courts have developed the “sham affidavit rule [which] merely recognizes the authority of a trial court charged with weeding out non-genuine fact issues to require litigants to explain conflicting testimony that appears to be a sham designed to avoid summary judgment.’”

Lujan v. Navistar, Inc., 555 SW 3d 79, 86 (Tex. 2018).

Thus, a party seeking to avoid summary judgement must produce some genuine “evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact’s existence.”

ROCOR INTERN. v. National Union Fire Ins., 77 SW 3d 253, 262 (Tex. 2002 ) (Citing Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001).

Mackie Wolf’s affidavit is a sham affidavit and is therefore not competent evidence of material facts in dispute to defeat Plaintiff’s Motion for partial summary judgment.

7 Affidavit of Keller Mackie, page 2

WHEREFORE ALL PREMISES CONSIDERED Regina Nachael Howell Foster prays that the Court GRANT Plaintiff’s Partial Motion for Traditional Summary Judgment and grants such other further and/or additional relief to which Plaintiff may have shown herself entitled in law or equity.

Respectfully submitted by:

/s/ Regina Nachael Howell Foster

Regina Nachael Howell Foster
Pro Se Plaintiff

4121 Woodcreek Dr.
Dallas, TX 75220
817-217-3933
Rnachael@gmail.com

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing instrument was served in accordance with the Texas rules of civil procedure on all counsel of record this 22nd day of October 2024.

/s/ Regina Nachael Howell Foster
Regina Nachael Howell Foster

Automated Certificate of eService

This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.