Richard Allen Nicholson and Helena Mary Nicholson v. CitiMortgage, Inc.

• Court: Court of Appeals of Texas
• Decided: July 17, 2015
• Docket: 02-15-00105-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-15-00105-CV

RICHARD ALLEN NICHOLSON APPELLANTS AND HELENA MARY NICHOLSON

V.

CITIMORTGAGE, INC. APPELLEE

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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 14-08061-362

MEMORANDUM OPINION1

Appellants Richard Allen Nicholson and Helena Mary Nicholson attempt to

appeal from a February 19, 2015 order granting the home equity foreclosure

application of Appellee CitiMortgage, Inc. See Tex. R. Civ. P. 736.1. On June 5,

2015, we notified Appellants of our concern that we lack jurisdiction over this

1 See Tex. R. App. P. 47.4. appeal because the order being appealed does not appear to be a final judgment

or an appealable interlocutory order. Appellants responded that the order is final

and, alternatively, that rule of civil procedure 736.8(c) violates the Texas

constitution’s open courts provision, unreasonably restrains access to courts, and

is illusory.

Rule of civil procedure 736 provides the procedure for obtaining a court

order, when required, to allow foreclosure of a lien containing a power of sale.

Tex. R. Civ. P. 735.1. Rule 736.8(c) states that an order granting or denying an

application under rule 736 “is not subject to a motion for rehearing, new trial, bill

of review, or appeal.” Tex. R. Civ. P. 736.8(c) (emphasis added). Thus, this

appeal is expressly precluded by rule 736.8(c). Moreover, the rule is not

unenforceable for the reasons articulated by Appellants because it contains a

specific procedure for challenging the trial court’s order—“Any 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.”2 Id.; see also Tex. R. Civ. P.

736.11(a), (c) (requiring trial court to vacate order upon motion when respondent

files separate, original proceeding “that puts in issue any matter related to the

origination, servicing, or enforcement of the loan agreement, contract, or lien

2 Appellants argue that the independent proceeding procedure is illusory and provides “no meaningful access to the courts” because “[w]hen separate proceedings are filed challenging the validity of a lien under Section 50(a) of the Texas Constitution, lenders remove the cases to federal court and then get them dismissed on the grounds that there is a four-year statute of limitations to bring such suits.” We decline to disregard rule 736.8(c)’s clear and unambiguous requirement on speculation alone. 2 sought to be foreclosed prior to 5:00 p.m. on the Monday before the scheduled

foreclosure sale”).

Accordingly, we dismiss this appeal for want of jurisdiction. See Tex. R.

App. P. 43.2(f); see also Wood v. 21st Century Mortg. Corp., No. 05-14-01467-

CV, 2015 WL 3866634, at *1 (Tex. App.—Dallas June 23, 2015, no pet. h.)

(mem. op.) (dismissing appeal for want of jurisdiction); Statin v. Deutsche Bank

Nat’l Trust Co., No. 01-14-00142-CV, 2014 WL 5018901, at *1 (Tex. App.—

Houston [1st Dist.] Oct. 7, 2014, no pet.) (mem. op.) (same); McLane v.

Washington Mut. Bank, No. 02-07-00460-CV, 2008 WL 2780665, at *1 (Tex.

App.—Fort Worth July 17, 2008, no pet.) (mem. op.) (same).

PER CURIAM

PANEL: MEIER, GABRIEL, and SUDDERTH, JJ.

DELIVERED: July 16, 2015