Appeal from the 113th District Court Harris County, Texas
Trial Court Cause No. 2018-52009
consists of Chief Justice Frost and Justices Spain and
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.
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.
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.
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.
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.
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
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 ...