Nicholson v. The Bank of N.Y. Mellon
| Docket Number | 02-20-00379-CV |
| Decision Date | 31 March 2022 |
| Parties | Harriet Nicholson, Appellant v. The Bank of New York Mellon fka the Bank of New York as Trustee for the Certificateholders of CWMBS, Inc., CWMBS Reforming Loan Remic Trust Certificates Series 2005-R2;Melanie Cowan; Bank of America, N.A.; ReconTrust Company, N.A.; Countrywide Home Loans, Inc., and David Stockman, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 342nd District Court Tarrant County, Texas Trial Court No. 342-262692-12
Before Bassel, Wallach, and Walker, JJ.
This case originated almost a decade ago with pro se[1] appellant Harriet Nicholson's 2012 lawsuit challenging a wrongful home foreclosure. Nicholson, [2] who still lives in the home at issue prevailed on the wrongful-foreclosure issue but complains about the trial court's summary judgments on her other claims and various other rulings in favor of Appellees The Bank of New York Mellon fka the Bank of New York as Trustee for the Certificateholders of CWMBS, Inc., CWMBS Reforming Loan Remic Trust Certificates Series 2005-R2 (BONY); Melanie Cowan; Bank of America, N.A.; ReconTrust Company, N.A.; Countrywide Home Loans, Inc.; and David Stockman.[3] We affirm.
The instant appeal arises from the same facts as Nicholson's earlier appeals in this court in which we affirmed summary judgments for ReconTrust and BONY, Nicholson I, 2021 WL 1134455, at *1, [4] Stockman, Nicholson II, 2020 WL 241420, at *1, and Bank of America and Countrywide. Nicholson III, 2019 WL 7407739, at *1. We rely on our earlier opinions to present a complete factual picture.
In 2001, Nicholson executed a deed of trust to her home in Tarrant County in favor of Mortgage Electronic Registration Systems, Inc. (MERS)-the nominee of the lender, Mid America Mortgage, Inc. and its successors and assigns-to secure a contemporaneous $125, 048 promissory note for the home's purchase. Nicholson I, 2021 WL 1134455, at *1; Nicholson II, 2020 WL 241420, at *1 & n.1. Countrywide was initially the loan's servicer, and Bank of America became the loan's servicer after Countrywide assigned the loan to Bank of America's predecessor by merger. Nicholson I, 2021 WL 1134455, at *1. At some point after litigation began between these earlier parties and others, Nationstar became the loan's servicer. Id.
The deed of trust was recorded in Tarrant County. Nicholson II, 2020 WL 241420, at *1. After Nicholson defaulted, [5] ReconTrust was hired to initiate the foreclosure. Nicholson I, 2021 WL 1134455, at *1. Bank of America appointed Stockman as the substitute trustee to enforce the deed, and Stockman sold the property to BONY at a July 3, 2012 nonjudicial foreclosure sale. Nicholson II, 2020 WL 241420, at *1.
However, the notice of foreclosure sale listed the Dallas County courthouse as the sale's location, rather than the Tarrant County courthouse.[6] Nicholson III, 2019 WL 7407739, at *1. After BONY brought a successful forcible-detainer action to evict her, Nicholson II, 2020 WL 241420, at *1, Nicholson sued for wrongful foreclosure and to stop her eviction.[7] Id.; Nicholson III, 2019 WL 7407739, at *1. Nicholson brought a variety of claims-including violation of Civil Practice and Remedies Code Section 12.002, [8] negligence per se, gross negligence per se, fraud, and requests for declaratory relief-in a variety of cases. Nicholson I, 2021 WL 1134455, at *1; Nicholson III, 2019 WL 7407739, at *1. Nicholson unsuccessfully sought to consolidate her cases, including the instant case filed in the 342nd District Court of Tarrant County, a case she had filed in the 96th District Court of Tarrant County, and cases she had filed in the 48th District Court of Tarrant County.
In the 48th Court, Bank of America and Countrywide each filed a motion for summary judgment on identical bases-res judicata, collateral estoppel, and the economic loss rule, as well as on no-evidence grounds-and the court granted the motions. Nicholson III, 2019 WL 7407739, at *2. We affirmed the 48th Court's summary judgments on Nicholson's tort claims against Bank of America and Countrywide because Nicholson had failed to challenge every ground-including the economic loss rule-upon which the summary judgments could have been granted. Id. at *3. We affirmed the remainder of the summary judgments based on Nicholson's failure to explain how the record showed that she had provided controverting evidence to defeat Bank of America and Countrywide's entitlement to summary judgment on any of her claims, much less how any of the evidence raised a fact issue. Id. at *3-4; see Tex. R. App. P. 38.1(i); see also Barcroft, 2017 WL 3910911, at *5 n.11 ( that pro se litigants tend to lose because their lack of legal education or training tends to lead them to critical mistakes of form and substance).
While the instant suit was pending in the 342nd Court, Stockman executed a rescission of the 2012 foreclosure sale, cancelled the prior substitute trustee's deed based on the foreclosure sale's improper location, and recorded this instrument in the Tarrant County real property records. Nicholson I, 2021 WL 1134455, at *1; Nicholson II, 2020 WL 241420, at *1; Nicholson III, 2019 WL 7407739, at *1. During the instant litigation, the 342nd Court found that the substitute trustee's deed and Stockman's subsequent rescission were "invalid."[9] Nicholson II, 2020 WL 241420, at *1; Nicholson III, 2019 WL 7407739, at *1.
In the 48th Court, Stockman moved for no-evidence summary judgment on Nicholson's claims against him for fraud and conspiracy to commit fraud, and the trial court granted the motion. Nicholson II, 2020 WL 241420, at *1, *3. Nicholson amended her petition, raised new claims against Stockman for violation of Civil Practice and Remedies Code Section 12.002, negligence per se, gross negligence, and declaratory relief, and again raised claims against him for fraud and conspiracy to commit fraud. In a summary-judgment motion, Stockman raised res judicata on the old claims and argued that there was no evidence to support Nicholson's new claims against him. Id. The 48th Court granted the motion. Id.
On appeal, Nicholson argued that material fact issues on each of her claims precluded summary judgment. Id. at *2. However, she failed to explain what specific evidence supported each element of her claims, to discuss what those elements were, or to parse each ground raised in the no-evidence motion. Id. at *3 (). Accordingly, we affirmed the trial court's judgment. Id. at *4.
Nicholson's underlying loan remained in default. Nicholson I, 2021 WL 1134455, at *1-2, *4. On February 17, 2015, Countrywide, through Nationstar as its attorney-in-fact, assigned the 2001 deed of trust to BONY. And in April 2016, Harvey Law Group, Nationstar's counsel, notified Nicholson that her underlying loan remained in default, id. at *2, *4, reminding her that the note had been accelerated on April 24, 2012, and informing her that, pursuant to Civil Practice and Remedies Code Section 16.038, "Nationstar . . . and the lienholder have elected to rescind the acceleration of the maturity of the Indebtedness." See Tex. Civ. Prac. & Rem. Code Ann. § 16.038.[10]
Nicholson then sued Harvey Law Group, ReconTrust, Nationstar, and BONY in the 48th Court, asserting that they had made material misrepresentations and had knowingly filed documents that had falsely clouded her title, constituting negligence and gross negligence and violating Civil Practice and Remedies Code Section 12.002. Nicholson I, 2021 WL 1134455, at *2. She also raised claims for fraud and conspiracy to commit fraud and sought numerous declarations regarding her property's title. Id. BONY, Nationstar, and ReconTrust filed traditional motions for summary judgment, arguing that Nicholson had failed to raise a genuine issue of material fact on each element of her claims for affirmative relief, and Harvey Law Group moved for a traditional summary judgment based on the affirmative defense of attorney immunity. Id. Nicholson moved for a partial traditional summary judgment on her declaratory-judgment claims. Id. The trial court granted the defendants' motions and entered a final judgment dismissing Nicholson's claims. Id.
On appeal, Nicholson argued that she had raised genuine issues of material fact on her claims, that Harvey Law Group was not entitled to attorney immunity, and that the trial court had erred by denying her motion for partial summary judgment. Id. at *2, *4. We noted that "[a]s in her prior two appeals from the severed actions, [11]Nicholson wholly fails to explain what specific evidence supported each element of her numerous claims or to even discuss what those elements are." Id. at *3. As to all of the appellees in that case except Harvey Law Group, we held that Nicholson's defective briefing was not readily correctable or harmless and that "[e]ven under a liberal construction, her briefing is a flagrant violation of the procedural rules, imposing an unreasonable burden on this court to attempt to address her [summary-judgment] issue." Id. When the extent of her briefing on the declaratory-judgment claim amounted to a bare statement of the presented point, we likewise held that she had insufficiently presented that issue for our review. Id. at *4.
With regard to Harvey Law Group, we stated that all of Nicholson's claims against the firm related to actions it had performed within the course and scope of...
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