Nicholas D. Mosser v. Flagstar Bank, FSB Select Portfolio Servicing Inc. First Guaranty Mortgage Corporation Federal Home Loan Mortgage Corporation

• Court: Court of Appeals of Texas
• Decided: February 1, 2024
• Docket: 05-23-01139-CV
• Status: Published

Opinion

Dismissed and Opinion Filed February 1, 2024

SIn The Court of Appeals Fifth District of Texas at Dallas

No. 05-23-01139-CV

NICHOLAS D. MOSSER, Appellant

V.

FLAGSTAR BANK, N.A., SELECT PORTFOLIO SERVICING, INC., AND FEDERAL HOME LOAN MORTGAGE CORPORATION, Appellees

On Appeal from the 471st Judicial District Court Collin County, Texas Trial Court Cause No. 471-06006-2019

MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Garcia Opinion by Justice Partida-Kipness Before the Court is a motion to dismiss the appeal for want of jurisdiction

filed by appellees Flagstar Bank, N.A. (Flagstar), Select Portfolio Servicing, Inc.

(SPS), and Federal Home Loan Mortgage Corporation (Freddie Mac) (collectively

Appellees). We grant the motion and dismiss the appeal. See TEX. R. APP. P. 42.3(a).

Appellant’s notice of appeal states he appeals “all judgments and orders from

the trial court signed by Judge Bouressa, including the final judgments on August

10, 2023[.]” No judgment was signed on August 10, 2023. The order Appellant refers to as the August 10, 2023 judgment is an order signed on August 3, 2023 (the

August 3 Order). The trial court made the following rulings in the August 3 Order:

(1) granted Flagstar and SPS’s motion for summary judgment as to Appellant’s

supplemental petition; (2) granted SPS’s summary judgment motion on its

counterclaims against Appellant; (3) granted Freddie Mac’s summary judgment

motion on Appellant’s claims against Freddie Mac; and (4) ordered that SPS was

entitled to foreclose on Appellant’s property. The trial court did not dispose of

Appellant’s pending claims against First Guarantee Mortgage Corporation (FGMC).

FGMC is not a party to this appellate proceeding.

The trial court also ordered that Appellant’s claims against Flagstar, SPS, and

Freddie Mac and SPS’s counterclaim against Appellant be severed from the original

cause number 471-06006-2009. The trial court assigned the severed claims a new

trial court cause number, 471-04378-2023 (the Severed Cause). Appellant’s claims

against FGMC remained pending in cause number 417-06006-2009 (the Original

Cause). Appellant’s appeal of the August 3 Order as to the severed claims is the

subject of appellate cause number 05-23-01140-CV. This appeal, in contrast,

references and concerns the Original Cause, 471-06006-2019.

Appellees move to dismiss this appeal for want of jurisdiction because no final

judgment or appealable interlocutory order has been signed in the Original Cause.

We agree this Court lacks jurisdiction over this appeal. Appellant’s claims against

Appellees, and the August 3 Order disposing of those claims, were severed into trial

–2– court cause number 471-04378-2023. Appellant’s appeal from the August 3 Order

in the Severed Cause is pending in this Court under appellate cause number 05-23-

01140-CV. This appeal, in contrast, references the Original Cause in which

Appellant’s claims against FGMC remain pending. No final judgment or appealable

interlocutory order has been signed in the Original Cause. We, therefore, lack

jurisdiction over this appeal. See Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266,

272 (Tex. 1992) (appeals may only be taken from final judgments that dispose of all

parties and claims and interlocutory orders if authorized by statute).

CONCLUSION

Although more than ten days have passed since Appellees filed their motion

to dismiss, Appellant has not filed a response or otherwise disputed Appellees’

assertions. Moreover, nothing before us reflects a final judgment or appealable

interlocutory order has been signed in the Original Cause. Accordingly, with nothing

before us demonstrating we have jurisdiction over the appeal, we grant Appellees’

motion and dismiss the appeal for want of jurisdiction. See TEX. R. APP. P.

42.3(a)(1).

/Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS JUSTICE 231139F.P05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

NICHOLAS D. MOSSER, Appellant On Appeal from the 471st Judicial District Court, Collin County, Texas No. 05-23-01139-CV V. Trial Court Cause No. 471-06006- 2019. FLAGSTAR BANK, N.A., SELECT Opinion delivered by Justice Partida- PORTFOLIO SERVICING, INC., Kipness, Justices Pedersen, III and AND FEDERAL HOME LOAN Garcia participating. MORTGAGE CORPORATION, Appellees

In accordance with this Court’s opinion of this date, we DISMISS the appeal.

We ORDER that appellees Flagstar Bank, N.A., Select Portfolio Servicing, Inc., and Federal Home Loan Mortgage Corporation recover their costs, if any, of this appeal from appellant Nicholas D. Mosser.

Judgment entered this 1st day of February 2024.

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