NUMBER 13-24-00643-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE BORAIN CAPITAL FUND-III, LLC
ON PETITION FOR WRIT OF MANDAMUS
MEMORANDUM OPINION Before Chief Justice Tijerina and Justices Silva and Peña Memorandum Opinion by Chief Justice Tijerina1
By petition for writ of mandamus, relator BoRain Capital Fund-III, LLC contends
that the trial court2 abused its discretion by failing to sign an order granting relator’s
application for expedited foreclosure when there are no disputes or defenses as to the
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 47.1 (requiring the appellate courts to “hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition”); id. R. 47.4 (distinguishing opinions and memorandum opinions). 2 This original proceeding arises from trial court cause number C-3280-22-L in the 464th District
Court of Hidalgo County, Texas, and the respondent is the Honorable Joe Ramirez. See id. R. 52.2. relief that it seeks. See generally TEX. R. CIV. P. 735, 736. We conditionally grant the
petition for writ of mandamus.
I. BACKGROUND
On August 12, 2022, more than two years ago, relator filed an “Application for
Expedited Order Under Rule 736 on a Home Equity Loan” on a residential property in
Edinburg, Texas, against real party in interest Connie Ruiz. See id. Ruiz did not file a
written response contesting relator’s application. The trial court held its first hearing on
relator’s application on September 26, 2023, but reset the hearing for a later date because
Ruiz, proceeding pro se, did not make an appearance at that hearing. The trial court held
a second hearing on relator’s application on February 7, 2024, a third hearing on August
6, 2024, and a fourth hearing on October 22, 2024. At the final hearing, Ruiz stated that
she had secured funds to pay relator but requested additional time to “get the rest of the
money together.” The trial court agreed to reset the hearing for a final time.
This original proceeding ensued. By one issue, relator asserts that the trial court
“abused and continues to abuse its discretion in failing and refusing to perform a
ministerial act” by failing to grant relator’s application “when there are no disputes or
defenses as to the relief [r]elator seeks.” This Court requested Ruiz, or any others whose
interest might be affected by the relief sought, to file a response to relator’s petition for
writ of mandamus on or before the expiration of ten days. See TEX. R. APP. P. 52.2, 52.4,
52.8. More than ten days have passed, and Ruiz has not filed a response to the petition
for writ of mandamus.
II. MANDAMUS
Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem.
2 Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836,
840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that: (1) the trial
court abused its discretion; and (2) the relator lacks an adequate remedy on appeal. In re
Illinois Nat’l Ins., 685 S.W.3d 826, 834 (Tex. 2024) (orig. proceeding); In re Prudential Ins.
Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.
1992) (orig. proceeding). “The relator bears the burden of proving these two
requirements.” In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig.
proceeding) (per curiam); Walker, 827 S.W.2d at 840.
The terms of Rule 736 impose ministerial duties on the trial court which may be
enforced by mandamus. See, e.g., In re OneWest Bank, FSB, 430 S.W.3d 573, 576 (Tex.
App.—Corpus Christi–Edinburg 2014, orig. proceeding); In re Dominguez, 416 S.W.3d
700, 707–08 (Tex. App.—El Paso 2013, orig. proceeding). Further, an order granting or
denying an application for expedited foreclosure “is not subject to a motion for rehearing,
new trial, bill of review, or appeal,” and “[a]ny challenge to a Rule 736 order must be made
in a suit filed in a separate, independent, original proceeding in a court of competent
jurisdiction.” TEX. R. CIV. P. 736.8.
III. EXPEDITED FORECLOSURE
Texas Rule of Civil Procedure 736 governs expedited foreclosure proceedings for
certain home-equity loans. See TEX. R. CIV. P. 735.1(a), 736; see generally TEX. CONST.
art. XVI, §§ 50(a)(6)(D), 50(r); Kapur v. U.S. Bank Nat’l Ass’n as Tr. for Holders of CIM
Tr. 2021-NR2, Mortgage-Backed Notes, Series 2021-NR2, 691 S.W.3d 663, 668 (Tex.
App.—Houston [14th Dist.] 2024, pet. denied). “A Rule 736 proceeding is not ‘an ordinary
3 lawsuit,’ but rather ‘a faster, more streamlined alternative to judicial foreclosure.’”
Burciaga v. Deutsche Bank Nat’l Tr. Co., 871 F.3d 380, 383 (5th Cir. 2017) (quoting
Huston v. U.S. Bank Nat’l Ass’n, 359 S.W.3d 679, 682 (Tex. App.—Houston [1st Dist.]
2011, no pet.)); see Steptoe v. JPMorgan Chase Bank, N.A., 464 S.W.3d 429, 433 (Tex.
App.—Houston [1st Dist.] 2015, no pet.). “The only issue to be determined in a Rule 736
proceeding is whether a party may obtain an order under Rule 736 to proceed with
foreclosure under applicable law and the terms of the loan agreement, contract, or lien
sought to be foreclosed.” TEX. R. CIV. P. 735.2.
As relevant here, a petitioner institutes foreclosure proceeding by filing an
application for an expedited order of foreclosure containing certain required information
and supported by an affidavit. See generally id. R. 736.1(d). The respondent may file a
response contesting the application; however, any such “response may not state an
independent claim for relief.” Id. R. 736.5(a), (d). “The court must not conduct a hearing
under [Rule 736] unless a response is filed.” Id. R. 736.6. If the respondent fails to file a
response, the petitioner may obtain a default order. See id. R. 736.7(a). “For the purposes
of obtaining a default order, all facts alleged in the application and supported by the
affidavit of material facts constitute prima facie evidence of the truth of the matters
alleged.” Id. “The court must grant the application by default order no later than 30 days
after a motion is filed under [Rule 736.7](a) if the application complies with the
requirements of Rule 736.1 and was properly served in accordance with Rule 736.3.” Id.
R. 736.7(b). If the petitioner establishes its right to foreclosure, “[t]he court must issue an
order granting the application,” and “[o]therwise, “the court must deny the application.” Id.
R. 736.8(a).
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NUMBER 13-24-00643-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE BORAIN CAPITAL FUND-III, LLC
ON PETITION FOR WRIT OF MANDAMUS
MEMORANDUM OPINION Before Chief Justice Tijerina and Justices Silva and Peña Memorandum Opinion by Chief Justice Tijerina1
By petition for writ of mandamus, relator BoRain Capital Fund-III, LLC contends
that the trial court2 abused its discretion by failing to sign an order granting relator’s
application for expedited foreclosure when there are no disputes or defenses as to the
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 47.1 (requiring the appellate courts to “hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition”); id. R. 47.4 (distinguishing opinions and memorandum opinions). 2 This original proceeding arises from trial court cause number C-3280-22-L in the 464th District
Court of Hidalgo County, Texas, and the respondent is the Honorable Joe Ramirez. See id. R. 52.2. relief that it seeks. See generally TEX. R. CIV. P. 735, 736. We conditionally grant the
petition for writ of mandamus.
I. BACKGROUND
On August 12, 2022, more than two years ago, relator filed an “Application for
Expedited Order Under Rule 736 on a Home Equity Loan” on a residential property in
Edinburg, Texas, against real party in interest Connie Ruiz. See id. Ruiz did not file a
written response contesting relator’s application. The trial court held its first hearing on
relator’s application on September 26, 2023, but reset the hearing for a later date because
Ruiz, proceeding pro se, did not make an appearance at that hearing. The trial court held
a second hearing on relator’s application on February 7, 2024, a third hearing on August
6, 2024, and a fourth hearing on October 22, 2024. At the final hearing, Ruiz stated that
she had secured funds to pay relator but requested additional time to “get the rest of the
money together.” The trial court agreed to reset the hearing for a final time.
This original proceeding ensued. By one issue, relator asserts that the trial court
“abused and continues to abuse its discretion in failing and refusing to perform a
ministerial act” by failing to grant relator’s application “when there are no disputes or
defenses as to the relief [r]elator seeks.” This Court requested Ruiz, or any others whose
interest might be affected by the relief sought, to file a response to relator’s petition for
writ of mandamus on or before the expiration of ten days. See TEX. R. APP. P. 52.2, 52.4,
52.8. More than ten days have passed, and Ruiz has not filed a response to the petition
for writ of mandamus.
II. MANDAMUS
Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem.
2 Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836,
840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that: (1) the trial
court abused its discretion; and (2) the relator lacks an adequate remedy on appeal. In re
Illinois Nat’l Ins., 685 S.W.3d 826, 834 (Tex. 2024) (orig. proceeding); In re Prudential Ins.
Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex.
1992) (orig. proceeding). “The relator bears the burden of proving these two
requirements.” In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig.
proceeding) (per curiam); Walker, 827 S.W.2d at 840.
The terms of Rule 736 impose ministerial duties on the trial court which may be
enforced by mandamus. See, e.g., In re OneWest Bank, FSB, 430 S.W.3d 573, 576 (Tex.
App.—Corpus Christi–Edinburg 2014, orig. proceeding); In re Dominguez, 416 S.W.3d
700, 707–08 (Tex. App.—El Paso 2013, orig. proceeding). Further, an order granting or
denying an application for expedited foreclosure “is not subject to a motion for rehearing,
new trial, bill of review, or appeal,” and “[a]ny challenge to a Rule 736 order must be made
in a suit filed in a separate, independent, original proceeding in a court of competent
jurisdiction.” TEX. R. CIV. P. 736.8.
III. EXPEDITED FORECLOSURE
Texas Rule of Civil Procedure 736 governs expedited foreclosure proceedings for
certain home-equity loans. See TEX. R. CIV. P. 735.1(a), 736; see generally TEX. CONST.
art. XVI, §§ 50(a)(6)(D), 50(r); Kapur v. U.S. Bank Nat’l Ass’n as Tr. for Holders of CIM
Tr. 2021-NR2, Mortgage-Backed Notes, Series 2021-NR2, 691 S.W.3d 663, 668 (Tex.
App.—Houston [14th Dist.] 2024, pet. denied). “A Rule 736 proceeding is not ‘an ordinary
3 lawsuit,’ but rather ‘a faster, more streamlined alternative to judicial foreclosure.’”
Burciaga v. Deutsche Bank Nat’l Tr. Co., 871 F.3d 380, 383 (5th Cir. 2017) (quoting
Huston v. U.S. Bank Nat’l Ass’n, 359 S.W.3d 679, 682 (Tex. App.—Houston [1st Dist.]
2011, no pet.)); see Steptoe v. JPMorgan Chase Bank, N.A., 464 S.W.3d 429, 433 (Tex.
App.—Houston [1st Dist.] 2015, no pet.). “The only issue to be determined in a Rule 736
proceeding is whether a party may obtain an order under Rule 736 to proceed with
foreclosure under applicable law and the terms of the loan agreement, contract, or lien
sought to be foreclosed.” TEX. R. CIV. P. 735.2.
As relevant here, a petitioner institutes foreclosure proceeding by filing an
application for an expedited order of foreclosure containing certain required information
and supported by an affidavit. See generally id. R. 736.1(d). The respondent may file a
response contesting the application; however, any such “response may not state an
independent claim for relief.” Id. R. 736.5(a), (d). “The court must not conduct a hearing
under [Rule 736] unless a response is filed.” Id. R. 736.6. If the respondent fails to file a
response, the petitioner may obtain a default order. See id. R. 736.7(a). “For the purposes
of obtaining a default order, all facts alleged in the application and supported by the
affidavit of material facts constitute prima facie evidence of the truth of the matters
alleged.” Id. “The court must grant the application by default order no later than 30 days
after a motion is filed under [Rule 736.7](a) if the application complies with the
requirements of Rule 736.1 and was properly served in accordance with Rule 736.3.” Id.
R. 736.7(b). If the petitioner establishes its right to foreclosure, “[t]he court must issue an
order granting the application,” and “[o]therwise, “the court must deny the application.” Id.
R. 736.8(a). Such an “order is without prejudice and has no res judicata, collateral
4 estoppel, estoppel by judgment, or other effect in any other judicial proceeding.” Id. R.
736.9. “After an order is obtained, a person may proceed with the foreclosure process
under applicable law and the terms of the lien sought to be foreclosed.” Id.
IV. ANALYSIS
Relator asserts that the trial court has failed its ministerial duty under Rule 736 to
grant relator’s application for expedited foreclosure because there are no disputes or
defenses to the relief it seeks.
We interpret the rules of procedure using the same principles that we apply to
construe statutes. In re Millwork, 631 S.W.3d 706, 711 (Tex. 2021) (orig. proceeding) (per
curiam); Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651,
654 (Tex. 2020); Boyce v. Eberstein, 636 S.W.3d 708, 712 (Tex. App.—Dallas 2021, pet.
denied). “Our review is de novo, and our primary objective is to give effect to the drafter’s
intent as expressed in the rule’s language.” In re City of Dickinson, 568 S.W.3d 642, 645–
46 (Tex. 2019) (orig. proceeding). However, we apply our principles of statutory
construction considering Texas Rule of Civil Procedure 1, which provides that the rules
of procedure “shall be given a liberal construction” to further the rules’ objective to “obtain
a just, fair, equitable[,] and impartial adjudication of the rights of litigants under established
principles of substantive law.” TEX. R. CIV. P. 1; see Bethel, 595 S.W.3d at 655; Boyce,
636 S.W.3d at 712. We begin with the text of the rule and construe it according to its plain
meaning. Bethel, 595 S.W.3d at 655.
Based upon the record presented, relator filed its application for expedited
foreclosure on August 12, 2022, and filed a motion for default judgment on December 9,
2022. Ruiz did not file a response to relator’s application or any pleading regarding
5 relator’s motion for default judgment. Nevertheless, the trial court held multiple hearings
on relator’s application and motion and has not issued a ruling. The trial court thus failed
to comply with Rule 736 in at least two respects. First, the rule expressly provides that
“[t]he court must not conduct a hearing under [Rule 736] unless a response is filed.” TEX.
R. CIV. P. 736.6. The term “must” imposes a mandatory rather than a discretionary duty,
particularly when we consider the rule’s expedited and streamlined process. Image API,
LLC v. Young, 691 S.W.3d 831, 840 (Tex. 2024); AC Ints., L.P. v. Tex. Comm’n on Env’t
Quality, 543 S.W.3d 703, 709 (Tex. 2018); PermiaCare v. L.R.H., 600 S.W.3d 431, 443
(Tex. App.—El Paso 2020, no pet.). Pursuant to Rule 736, the trial court should not have
held hearings on relator’s application because Ruiz did not file a response. Id. R. 736.6.
Second, the rule states that the trial “court must issue an order granting the application if
the petitioner establishes the basis for the foreclosure.” Id. R. 736.8(a). Based upon this
record, there is no dispute that relator’s application “complie[d] with the requirements of
Rule 736.1 and was properly served in accordance with Rule 736.3.” Id. R. 736.7(b).
Therefore, because relator established its right to foreclosure, the trial court had a
ministerial duty to grant its application. See id. R. 736.8(a); Image API, LLC, 691 S.W.3d
at 840; AC Ints., L.P., 543 S.W.3d at 709; PermiaCare, 600 S.W.3d at 443.
We sustain the sole issue presented in this original proceeding.
V. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus
and the applicable law, is of the opinion that relator has met its burden to obtain relief.
Accordingly, we conditionally grant the petition for writ of mandamus. We direct the trial
6 court to sign the order granting relator’s expedited application for foreclosure. Our writ will
issue only if the trial court fails to promptly comply.
JAIME TIJERINA Chief Justice
Delivered and filed on the 28th day of January, 2025.