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Garcia v. Garcia

Court of Appeals of Texas, Fourteenth District

June 11, 2019

OSCAR GARCIA, Appellant
v.
NANCY GARCIA, Appellee

          On Appeal from the 113th District Court Harris County, Texas Trial Court Cause No. 2018-52009

          Panel consists of Chief Justice Frost and Justices Spain and Poissant.

          MEMORANDUM OPINION

          PER CURIAM

         Appellant Oscar Garcia petitions this court to allow a permissive interlocutory appeal of the trial court's April 23, 2019 order denying his motion for summary judgment in favor of appellee Nancy Garcia. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d). We deny the petition.

         I. Background

         Nancy Garcia owns a house in Houston, Texas, which was awarded to her as her sole property (the "property") in her divorce from Oscar Garcia. Nancy alleged that she took out two home-equity loans from Oscar. See Tex. Const. art. XVI, § 50(a)(6). Oscar disputed that the loans are home-equity loans under the Texas Constitution. After Nancy defaulted on the loans and did not pay the matured debt, Oscar sought to foreclose on the property. Nancy then filed for Chapter 7 bankruptcy and was discharged of her debts a few months later.

         Nancy and Oscar subsequently entered into a Rule 11 agreement regarding the sale of the property. Tex.R.Civ.P. 11. After Nancy failed to obtain a contract for the sale of the property pursuant to the agreement, Oscar again sought to foreclose on the property. Nancy requested and was granted injunctive relief enjoining Oscar from posting for non-judicial foreclosure, performing a trustee's sale or other foreclosure sale, transferring, alienating, encumbering or otherwise altering or affecting title to the Property.

         Nancy also sought a declaratory judgment that: (1) Oscar failed to cure the constitutional defects in the loan documents; (2) the mortgage lien void is because it does not comply with the requirements of the Texas Constitution for a home equity loan; (3) Oscar forfeited all principal and interest on the subject note; and (4) Oscar must reimburse Nancy for all payments previously made on the note.

         Oscar moved for summary judgment arguing, among other things, that res judicata and judicial estoppel barred Nancy's claims because she did not raise her constitutional claims or otherwise challenge the validity of the mortgages when Nancy was in Chapter 7 bankruptcy.[1]

         On February 26, 2019, the trial court signed the order denying Oscar's motion for summary judgment. On April 23, 2019, the trial court signed the following order, in part, allowing Oscar to appeal from the interlocutory order denying his motion for summary judgment:

IT IS FURTHER ORDERED that the Court permits the Defendant to appeal the Order denying his motion for summary judgment. The Court finds that the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion and an immediate appeal from the order may materially advance the ultimate termination of the litigation.
IT IS THEREFORE ORDERED that the Court grants Defendant's request to appeal the Order denying Defendant's motion for summary judgment dated February 26, 2019.
IT IS FURTHER ORDERED that the Defendant's claim for equitable subrogation is still pending before the Court and will be abated until after the final resolution of Defendant's interlocutory appeal of the Order denying Defendant's ...

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