Susan Rebecca Cammack v. Bank of America, N.A., Chase Bank, Bank of New York Mellon, Wells Fargo Bank

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-18-00277-CV

Susan Rebecca CAMMACK, Appellant

v.

THE BANK OF NEW YORK MELLON f/k/a The Bank of New York as Trustee for the Certificateholders of CWABS 2004-05, Appellee

From the 216th Judicial District Court, Kerr County, Texas Trial Court No. 17695B The Honorable Stephen B. Ables, Judge Presiding

Opinion by: Sandee Bryan Marion, Chief Justice

Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice

Delivered and Filed: April 10, 2019

AFFIRMED

Appellant Susan Rebecca Cammack (“Cammack”) appeals the trial court’s order granting

summary judgment in favor of appellee the Bank of New York Mellon f/k/a The Bank of New

York as Trustee for the Certificateholders of CWABS 2004-05 (“Mellon”) on Cammack’s claims

for quiet title, trespass to try title, and declaratory judgment. We affirm the trial court’s judgment. 04-18-00277-CV

Background

In 2004, Cammack and her then-husband Gian Gabrielle Foschini (“Foschini”) obtained a

$500,000 home equity loan secured by a lien against real property located in Kerr County (“the

Property”). The lien was assigned to Mellon.

A. The 2011 lawsuit

In 2011, after Cammack and Foschini defaulted on the home equity loan, Cammack sued

Mellon and several other banks in Kerr County District Court alleging the loan was void and

requesting declaratory judgment quieting title in her favor (“the 2011 lawsuit”). Mellon asserted

counterclaims against Cammack and third-party claims against Foschini seeking foreclosure of the

Property. The trial court granted summary judgment in Mellon’s favor on all of Cammack’s

claims. In a separate order, the trial court granted Mellon summary judgment for foreclosure (“the

Foreclosure Judgment”). On May 2, 2017, the Kerr County Sheriff conducted a foreclosure sale

and sold the Property to Mellon.

B. The 2017 lawsuit

In August 2017, Cammack again sued Mellon and the other banks in Kerr County District

Court asserting claims for quiet title, trespass to try title, and declaratory judgment (“the 2017

lawsuit”). The 2017 lawsuit was removed to the United States District Court for the Western

District of Texas in September 2017. On March 14, 2018, the federal court remanded the case for

lack of subject-matter jurisdiction.

On July 17, 2018, Mellon filed a traditional and no-evidence motion for summary

judgment, arguing Cammack’s claims are barred by res judicata and collateral estoppel and, in any

event, fail on the merits. The trial court granted the motion six days later. Cammack filed a motion

to vacate the trial court’s judgment on the grounds that the trial court granted summary judgment

without first setting a hearing or giving Cammack an adequate opportunity to respond to Mellon’s

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motion. The trial court denied Cammack’s motion. Mellon then filed a motion to reconsider the

order denying Cammack’s motion, stating Mellon was not opposed to the relief Cammack sought

and requesting that the trial court set a hearing on the summary judgment motion. On August 31,

2018, the trial court granted Cammack’s “motion not in opposition to [Mellon’s] motion to

reconsider” and set Mellon’s motion for summary judgment for hearing on September 13, 2018.

Cammack filed a response in opposition to the motion for summary judgment and a plea to the

jurisdiction. After a hearing on September 13, 2018, the trial court on September 16, 2018, again

granted Mellon’s traditional and no-evidence motion for summary judgment. The trial court did

not explicitly rule on Cammack’s plea to the jurisdiction.

C. The appeal

Cammack initially filed a notice of appeal in April 2018, stating she intended to appeal

from the “judgment” signed on March 14, 2018 by the federal court. On September 10, 2018,

Cammack filed a conditional motion to withdraw the appeal pending the summary judgment

hearing scheduled for September 13, 2018. Following the September 13 hearing, Cammack

notified this court of her intent to pursue this appeal, and this court permitted Cammack to maintain

her right of appeal. Cammack filed her pro se brief on December 28, 2018. 1 On December 31,

2018, this court notified Cammack by letter that while the court would not order re-briefing,

Cammack’s brief was not in compliance with Texas Rule of Appellate Procedure 38.1(i) in that it

does not contain a clear and concise argument for the contentions made with appropriate citations

to authorities and to the record.

1 Another defendant bank in the trial court, JP Morgan Chase Bank, N.A. (“Chase”), filed an appellee’s brief. Because Cammack’s appellate brief identifies Mellon as the only appellee and does not raise any arguments related to Chase, Cammack has waived any right to appellate relief related to her claims against Chase. See TEX. R. APP. P. 38.1.

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Discussion

Although Cammack identifies three separate issues on appeal, the gist of all three issues is

that the trial court in the 2017 lawsuit erred in “declining to consider a jurisdictional challenge and

new information and evidence” demonstrating Mellon lacked standing to pursue foreclosure in the

2011 lawsuit. In the “Argument” section of her brief, Cammack appears to raise two additional

issues: (1) the trial court “was prejudiced to dispose of this case before the summary judgment

hearing of September 13, 2018 as evidenced by [its] actions in the events leading up to that hearing

and to this appeal”; and (2) Mellon “has intentionally confused, confounded, and concealed [its]

true name in order to defraud” Cammack.

A. Standard of review

Cammack appeals from the trial court’s order granting summary judgment in favor of

Mellon. Where, as here, a defendant moves for both traditional and no-evidence summary

judgment and the trial court grants summary judgment without stating its grounds, we first review

the trial court’s decision as to the no-evidence motion for summary judgment. Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). We review the grant of no-evidence summary

judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004).

A party moving for no-evidence summary judgment is entitled to judgment if, “[a]fter

adequate time for discovery, . . . there is no evidence of one or more essential elements of a claim

or defense on which an adverse party would have the burden of proof at trial.” TEX. R. CIV. P.

166a(i). The trial court “must” grant a no-evidence motion for summary judgment unless the non-

moving party produces evidence raising a genuine issue of material fact. Id. “A genuine issue of

material fact exists if more than a scintilla of evidence establishing the existence of the challenged

element is produced.” Ridgway, 135 S.W.3d at 600.

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B. Cammack’s first three issues

In her first three issues, Cammack reiterates the arguments she made in response to

Mellon’s motion for summary judgment. Cammack argues Mellon lacked standing to seek

foreclosure in the 2011 lawsuit because: (1) Mellon is a “mere Trustee of a mortgage backed

investment pool in the mortgage secondary market,” (2) Mellon is “specifically prohibited by its

own controlling document, The Pooling Services Agreement (PSA), from prosecuting foreclosures

or evictions against mortgage loan ‘Borrowers’ or alleged borrowers like [Cammack],” and (3)

Mellon is “not the Holder in Due Course of the alleged mortgage note.” The essence of Cammack’s

argument is that because Mellon lacked standing to foreclose, the trial court in the 2011 lawsuit

lacked subject-matter jurisdiction to render the Foreclosure Judgment. Cammack’s defense to

summary judgment, therefore, is a collateral attack on the Foreclosure Judgment.

“A collateral attack is an attempt to avoid the binding force of a judgment in a proceeding

not instituted for the purpose of correcting, modifying, or vacating the judgment, but in order to

obtain some specific relief which the judgment currently stands as a bar against.” Browning v.

Prostok, 165 S.W.3d 336, 346 (Tex. 2005). A judgment may not be collaterally attacked unless it

is void. Id. A judgment is void only when it is apparent the court that rendered it “‘had no

jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter

the particular judgment, or no capacity to act.’” Id. (quoting Browning v. Placke, 698 S.W.2d 362,

363 (Tex. 1985)). When reviewing a collateral attack, “we presume the validity of the judgment

under attack, and extrinsic evidence may not be used to establish a lack of jurisdiction.” In re

A.G.G., 267 S.W.3d 165, 169 (Tex. App.—San Antonio 2008, pet. denied). “A collateral attack

fails if the judgment contains jurisdictional recitals, even if other parts of the record show a lack

of jurisdiction.” Id.; accord Akers v. Simpson, 445 S.W.2d 957, 959 (Tex. 1969) (“[T]he

jurisdictional recitals [in a judgment] import absolute verity.”).

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The Foreclosure Judgment, which is attached to Mellon’s motion for summary judgment

filed in the 2017 lawsuit, states: “The Court determined it had jurisdiction over the subject matter

and the parties in this proceeding.” Therefore, Cammack’s collateral attack is without merit

because the Foreclosure Judgment contains a recitation of jurisdiction. See A.G.G., 267 S.W.3d at

169. Because Cammack’s arguments attacking the Foreclosure Judgment lack merit, we conclude

she failed to raise a genuine issue of material fact precluding the trial court from granting summary

judgment in Mellon’s favor. See Ridgway, 135 S.W.3d at 600. Cammack’s first three issues are

overruled.

C. Cammack’s additional issues

Cammack also appears to argue the trial court was “prejudiced” in favor of granting

summary judgment and that Mellon committed fraud regarding its own name. With respect to both

arguments, it is unclear precisely what error Cammack alleges the trial court committed or what

relief Cammack seeks on appeal. 2 Cammack does not cite any legal authority or the appellate

record.

We recognize Cammack is not an attorney and is representing herself on appeal. Pro se

litigants, however, are generally held to the same standards as licensed attorneys and must comply

with all applicable rules, including the rules governing appellate briefs. Olivarri v. Olivarri, No.

04-17-00477-CV, 2018 WL 2418467, at *2 (Tex. App.—San Antonio May 30, 2018, no pet.)

(mem. op.) (citing Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (per curiam)). As this court

advised Cammack in its December 31, 2018 letter, Cammack has the burden to make clear and

2 To the extent Cammack would argue the trial court erred in initially granting Mellon’s motion for summary judgment without first allowing Cammack an adequate opportunity to respond, we note the trial court remedied any error by vacating its initial order and setting the summary judgment motion for hearing more than twenty-one days after it was filed. See TEX. R. CIV. P. 166a(c) (“Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing.”).

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concise arguments with appropriate citations to authorities and to the record. See TEX. R. APP. P.

38.1(i). Where, as here, an appellant fails to cite relevant authority, provide relevant citations to

the record, or provide substantive analysis of an issue raised in the brief, nothing is presented for

our review. Olivarri, 2018 WL 2418467, at *2. Therefore, to the extent Cammack attempts to raise

any additional issues, she has waived them by inadequate briefing.

Conclusion

Because we overrule Cammack’s issues on appeal, we affirm the trial court’s judgment.

Sandee Bryan Marion, Chief Justice

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