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Phillips v. Nationstar Mortgage, LLC

Court of Appeals of Texas, Fifth District, Dallas

May 9, 2017


         On Appeal from the 95th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-00947

          Before Justices Francis, Fillmore, and Stoddart



         Agnes Phillips appeals from a final summary judgment in her wrongful foreclosure suit against Nationstar Mortgage, LLC and Federal National Mortgage Association a/k/a Fannie Mae. She contends the property was listed in her bankruptcy filing as homestead and she assumed it was protected from foreclosure. Appellees argue the summary judgment evidence establishes that the foreclosure proceedings were conducted during the times Phillips's bankruptcy proceeding was dismissed and that the later reinstatement of the bankruptcy case did not affect the validity of the foreclosure. After liberally construing Phillips's amended appellate brief, we conclude she has not shown reversible error and affirm the trial court's judgment.

         In 2006, Phillips purchased a home by obtaining a loan secured by a deed of trust on the property. It is undisputed she became delinquent in making payments on the debt. She filed a

          Chapter 13 bankruptcy proceeding in February 2011, listing the property as her homestead. The bankruptcy case was dismissed and reinstated multiple times due to missed payments under the Chapter 13 plan. While the bankruptcy case was dismissed, Nationstar sent Phillips notices of default and opportunity to cure. The bankruptcy case was later reinstated, but on December 2, 2013, the bankruptcy court again dismissed the case without prejudice. Phillips filed a motion to reinstate the bankruptcy case on December 26, 2013.

         After the December 2, 2013 dismissal, Nationstar sent Phillips notices of acceleration and a substitute trustee's sale scheduled for January 7, 2014 at the property address. Phillips did not cure the default and the trustee's sale occurred on January 7, 2014 as scheduled. Nationstar purchased the property at the sale and conveyed it to Fannie Mae on January 30, 2014. On February 23, 2014, the bankruptcy court granted Phillips's motion to reinstate the bankruptcy case.[1]

         Fannie Mae initiated eviction proceedings against Phillips in early January 2015. Trial in the eviction case was set for January 29, 2015. However, on January 27, 2015, Phillips filed this suit seeking to quiet title to the property and to enjoin the eviction proceedings. She obtained a temporary restraining order and temporary injunction restraining Fannie Mae from proceeding with the eviction. The temporary injunction is not at issue in this appeal. Phillips alleged causes of action for wrongful foreclosure, fraud, and violation of the bankruptcy automatic stay.

         Appellees filed both a traditional and a no-evidence motion for summary judgment. The traditional motion provided evidence that notices were properly sent to Phillips and that the automatic stay was not in effect at the time of the procedures necessary for foreclosure and the foreclosure sale. Appellees argued the automatic stay terminated when the case was dismissed and did not apply to these foreclosure proceedings, which were conducted after dismissal and before the later reinstatement of the case. See Frank v. Gulf States Fin. Co. (In re Frank), 254 B.R. 368, 374 (Bankr.S.D.Tex. 2000) ("[I]f a case is reinstated, the automatic stay is not retroactively reinstated with respect to creditor conduct that occurred between the dismissal and the reinstatement."); see also Holloway v. Valley Auto Sales (In re Holloway), 565 B.R. 435, 438-39 (Bankr. M.D. Ala. 2017) ("There is overwhelming support for the proposition that the vacatur of an order of dismissal of a Chapter 13 case does not retroactively impose the automatic stay.").

         The no-evidence motion for summary judgment challenged specific elements of each of the causes of action alleged in Phillips's original petition. See Tex. R. Civ. P. 166a(i). Phillips did not file a response to either motion for summary judgment. The trial court granted the motions for summary judgment after a hearing. The judgment became final after Fannie Mae nonsuited its counterclaim.

         A. Standard of Review

         We review the grant of summary judgment de novo. Masterson v. Diocese of Nw. Tex., 422 S.W.3d 594, 607 (Tex. 2013). A party moving for no-evidence summary judgment must challenge specific elements of the opponent's claim or defense on which the opponent will have the burden of proof at trial. Tex.R.Civ.P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). Once a party moves for no-evidence summary judgment, the court "must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact." Tex.R.Civ.P. 166a(i). Thus, to defeat a no-evidence motion for summary judgment, the nonmovant is required to produce more than a scintilla of probative evidence raising a genuine issue of material fact on each challenged element of its claim. See Gish, 286 S.W.3d at 310; see also Tex. R. Civ. P. 166a(i).

          B. Discussion

         Phillips is not represented by counsel on appeal. We construe liberally pro se pleadings and briefs. However, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. In re N.E.B., 251 S.W.3d 211, 211-12 (Tex. App.-Dallas 2008, no pet.) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978)); see also Tex. R. App. P. 38.9 (briefing rules construed liberally). To do otherwise would give a pro se litigant an unfair advantage over a litigant who is represented by counsel. In re N.E.B., 251 S.W.3d at 212. Only when we are provided with proper briefing may we discharge our responsibility to review the appeal and make a decision that disposes of the appeal. We are not responsible for searching the record for facts that may be favorable to a party's position. See Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 895 (Tex. App.-Dallas 2010, no pet.). We also are ...

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