Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 95th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-00947
Justices Francis, Fillmore, and Stoddart
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.
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.
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
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.
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.").
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.
Standard of Review
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).
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 ...