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Bowser v. Champion Mortgage

Court of Appeals of Texas, Third District, Austin

June 7, 2019

Marie Bowser, Appellant
v.
Champion Mortgage/Champion Reverse Mortgage/Nationstar Mortgage/Mr. Cooper, as Nominee for Lender and Lender's Successors and Assigns, and Bank of America, N.A., Appellees

          FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT NO. D-1-GN-18-003306, HONORABLE JAN SOIFER, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Kelly and Smith

          MEMORANDUM OPINION

          Edward Smith, Justice

         Appellant Marie Bowser sued Champion Mortgage Co. d/b/a Nationstar Mortgage, LLC, to enjoin or rescind a non-judicial foreclosure. See Tex. Civ. Prac. & Rem. Code § 65.011 (governing injunctions); Tex. Prop. Code § 51.0025 (authorizing non-judicial foreclosure); Charter Nat'l Bank-Hous. v. Stevens, 781 S.W.2d 368, 371 (Tex. App-Houston [14th Dist.] 1989, writ denied) (outlining elements of wrongful foreclosure). The district court denied the requested relief and subsequently denied Bowser's motion for new trial. We will affirm.

         BACKGROUND

         The parties before the Court are familiar with the facts of this case, and we will summarize them only to the extent necessary to dispose of Bowser's appeal. In 2014, Bowser received the disputed property ("the Property") from the estate of Owens Houston, Sr., a few months after his death. The Property was encumbered by a reverse mortgage Houston had obtained in 2009. As relevant to this appeal, Nationstar serviced the mortgage, which was memorialized by a Note and Deed of Trust.

         The Deed of Trust provided that the Lender or its representative could "require immediate payment in full of all sums secured by this Security Instrument" upon the death of the Borrower or the sale of the Property. Upon Houston's death, Nationstar exercised the option to require accelerated payment of the loan secured by the Property. When neither Bowser nor Houston's estate made that payment, Nationstar notified Bowser it would foreclose on the Property pursuant to Section 51.0025 of the Property Code.

         After several delays, [1] Nationstar provided notice that it would foreclose at 1:00 p.m. on July 3, 2018. At 11:00 a.m. that day, Bowser filed a petition for a temporary restraining order to enjoin the pending foreclosure, but foreclosure occurred and the Property was sold before the district court could hold a hearing on that motion. See Tex. Prop. Code § 51.002(c) (requiring sale to begin within three hours of time stated in notice). Bowser then filed an amended petition alleging wrongful foreclosure and seeking rescission of the sale. She also asked the Court to "hear [the] motion for temporary restraining order and injunctive relief." The district court held a hearing on the requested rescission in August but declined to entertain Bowser's arguments regarding the temporary restraining order. The court then denied the requested rescission and later denied Bowser's motion for new trial. Bowser timely perfected this appeal from the district court's order.[2]

         DISCUSSION

         We begin by noting that Bowser represents herself in this matter. "A pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure." Amir-Sharif v. Mason, 243 S.W.3d 854, 856 (Tex. App.-Dallas 2008, no pet.) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Strange v. Continental Cas. Co., 126 S.W.3d 676, 677 (Tex. App.-Dallas 2004, pet. denied)). Bowser appears to raise three issues on appeal. First, she contends the district court erred by refusing to entertain her arguments for a temporary restraining order or injunction. Second, she contends the district court erred by denying the requested rescission of the foreclosure. Third, she alleges error in the district court's denial of her motion for new trial.

         Temporary Restraining Order and Injunction

         Bowser first argues the district court erred by refusing to entertain Bowser's arguments for a temporary restraining order or injunction. We disagree. The Texas Constitution only affords the State's courts with jurisdiction over live cases and controversies. Heckman v. Williamson County, 369 S.W.3d 137, 147 (Tex. 2012). A request for injunctive relief is no longer live once the action sought to be enjoined is effected. Houston Transit Benefit Ass'n v. Carrington, 590 S.W.2d 744, 745 (Tex. App.-Houston [14th Dist.] 1979, no pet.). There are exceptions to this general rule, see id., but Bowser does not assert any exception here. On July 3, she sought to enjoin the imminent foreclosure of the Property, but by the time of the hearing, that foreclosure had already taken place. The district court therefore properly declined to exercise jurisdiction over the claim. Heckman, 369 S.W.3d at 147; Labrado v. County of El Paso, 132 S.W.3d 581, 589 (Tex. App.-El Paso 2004, no pet.). We overrule the issue.

         Rescission

         Bowser contends the district court erred by failing to rescind the foreclosure. As a predicate to foreclosure rescission, a plaintiff must establish a defect in the foreclosure proceedings and a resulting injury. See American Sav. and Loan Assoc. v. Musick, 531 S.W.2d 581, 587 (Tex. 1975). Bowser ...


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