Regina Nachael Howell Foster v. Infotree Investments & Management, LLC

In the
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-20-00031-CV

REGINA NACHAEL HOWELL FOSTER, APPELLANT

V.

INFOTREE INVESTMENTS & MANAGEMENT, LLC, APPELLEE

On Appeal from the 348th District Court
Tarrant County, Texas1
Trial Court No. 348-295708-17, Honorable Megan Fahey, Presiding

January 28, 2021
MEMORANDUM OPINION
Before PIRTLE and PARKER and DOSS, JJ.

Appellant Regina Nachael Howell Foster (“Foster”), proceeding pro se, appeals

from the trial court’s summary judgment in favor of appellee Infotree Investments &

Management, LLC, in the lawsuit Foster filed challenging the validity of a lien on her

homestead. We affirm.

1
Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the
Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001
(West 2013). In the event of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3.
 Background

This case arises from the foreclosure of a lien on Foster’s homestead in Tarrant

County. Carlos Foster, Foster’s husband, obtained a purchase money mortgage and

purchased the property prior to the couple’s marriage in 2001. During the couple’s

marriage, Carlos Foster refinanced the mortgage. On September 14, 2004, he signed a

promissory note to New Century Mortgage Corporation in the sum of $157,000. Foster

did not sign the promissory note. The note was secured by a deed of trust executed on

the same date. Both spouses signed the deed of trust, which was duly recorded.

After the loan went into default, the holder of the note, Deutsche Bank, initiated

non-judicial foreclosure proceedings, with the foreclosure sale scheduled for May 6, 2014.

On May 5, 2014, Foster2 filed a lawsuit against Deutsche Bank and others alleging: (1)

defendants wrongfully foreclosed on the property; (2) defendants violated statutory

foreclosure provisions; (3) the deed of trust did not create a valid lien on the property; (4)

she was entitled to a permanent injunction enjoining defendants from foreclosing on the

property; and (5) alternatively, she was entitled to reformation of the deed of trust. The

defendants removed the case to federal court and sought summary judgment. Foster

filed a response and “cross motion” for summary judgment in which she alleged that the

bank’s claimed lien on her homestead was void as a matter of law, based on the theory

that the Texas Constitution requires both spouses to sign a promissory note to create a

valid deed of trust.

2 The record indicates that the spouses were estranged at this time, and Carlos Foster was not a
party to the lawsuit.

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 In February of 2016, the federal district court granted summary judgment for the

defendants and dismissed Foster’s claims with prejudice. Foster appealed to the United

States Court of Appeals for the Fifth Circuit, which affirmed. See Foster v. Deutsche Bank

Nat’l Trust Co., 848 F.3d 403, 407 (5th Cir. 2017) (per curiam). The court concluded that

Foster had no claim for wrongful foreclosure because no foreclosure had occurred,3 and

it upheld the district court’s grant of summary judgment in favor of the defendants. Id. at

406-07.

Deutsche Bank then proceeded to foreclose its lien after sending Foster and

Carlos Foster notices of acceleration and of the foreclosure sale. Deutsche Bank

purchased the property at the foreclosure sale on April 4, 2017. On July 31, 2017,

Deutsche Bank conveyed the property to Infotree.

On October 16, 2017, Foster filed the instant lawsuit against Infotree, contesting

the validity of the lien that was foreclosed on April 4 and seeking declaratory relief,

injunctive relief, and damages. Infotree filed a counterclaim requesting that the court quiet

title to the property. Later, Infotree filed a motion for summary judgment and a

supplemental motion for summary judgment on the bases that Foster’s claims were

barred by res judicata and that the lien was valid. The trial court granted Infotree’s motion

for summary judgment and decreed that title in the property was quieted in and to Infotree.

Foster filed a motion for new trial, which the trial court denied. This appeal followed.

3 The mortgage servicer did not pursue the May 6 foreclosure sale.

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 Analysis

The “Issues Presented” section of Foster’s brief contains five questions, which can

be grouped as challenges to (1) the denial of her motion for new trial, (2) the grant of

Infotree’s motion for summary judgment, and (3) the denial of Foster’s motion for

summary judgment.4

The Denial of Foster’s Motion for New Trial

In her first issue, Foster contends that the trial court abused its discretion by

denying her motion for new trial because the trial court granted summary judgment on

grounds not expressly presented in the motion. We review a trial court’s denial of a

motion for new trial for abuse of discretion. Waffle House, Inc. v. Williams, 313 S.W.3d

796, 813 (Tex. 2010).

Foster argued that she was entitled to a new trial because the trial court granted

summary judgment on grounds not expressly presented in the motion. Foster points to a

letter from the trial court in which it stated that it “has given further consideration to the

competing motions for summary judgment, responses, and replies in this case” and

“conducted additional review of the law applicable to this case.” The trial court wrote that,

“In light of this further consideration, including the opinions in Alexander v. Wilmington

Savings Fund Society, 555 S.W.3d 297, 300 (Tex. App.—Dallas 2018, no pet.) and

4The five numbered questions in the “Issues Presented” section do not directly correspond to the
arguments presented in the body of Foster’s brief, but we endeavor to address all issues fairly raised. See
TEX. R. APP. P. 38.9 (requiring briefing rules to be construed liberally).

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Wilmington Trust, Nat’l Ass’n v. Blizzard, 702 Fed. Appx. 214 (5th Cir. 2017),” it was

granting Infotree’s motion.

Foster’s complaint is without merit. To the extent that the trial court’s letter

suggests what grounds it found persuasive, it is of no consequence. We look only to the

order granting summary judgment to determine the grounds upon which the trial court

relied. See Morvant v. Dallas Airmotive, Inc., No. 02-19-00049-CV, 2020 Tex. App.

LEXIS 475, at *11 (Tex. App.—Fort Worth Jan. 16, 2020, pet. filed) (mem. op.) (“When a

trial court sends a letter to the parties accompanying its order, the written order itself, and

not the letter, is controlling on appeal.”); see also RRR Farms, Ltd. v. Am. Horse Prot.

Ass’n, Inc., 957 S.W.2d 121, 126 (Tex. App.—Houston 1997, pet. denied) (“A letter

cannot be considered on appeal as giving the reasons for the judgment.”).

In this case, the summary judgment order does not state the grounds relied on by

the trial court. We cannot conclude that the trial court erred in denying Foster’s motion

for new trial on the basis alleged. We overrule Foster’s first issue.

Motions for Summary Judgment

In her remaining issues, Foster alleges that the trial court abused its discretion in

granting Infotree’s motion for summary judgment and in denying her motion for summary

judgment. When, as here, the parties file competing motions for summary judgment, and

the trial court grants one motion and denies the other, we may consider the propriety of

the denial as well as the grant. Lidawi v. Progressive Cty. Mut. Ins. Co., 112 S.W.3d 725,

729 (Tex. App.—Houston [14th Dist.] 2003, no pet.). We review a trial court’s decision to

grant or to deny a motion for summary judgment de novo. Tex. Mun. Power Agency v.
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Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). We consider the summary

judgment evidence presented by both sides, determine all questions presented, and

render the judgment that the trial court should have rendered. Id. When there are multiple

grounds for summary judgment and the order does not specify the ground on which

summary judgment was granted, the appealing party must negate all grounds on appeal.

State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993).

Infotree sought summary judgment on two grounds: (1) Foster’s claims were

barred by res judicata, and (2) even if res judicata did not apply, the lien was valid under

Texas law. In her competing motion, Foster argued that the lien on her homestead was

void because she did not sign the promissory note.

Res Judicata

We first address Infotree’s claim that the trial court properly granted summary

judgment on the basis of res judicata. Res judicata, or claim preclusion, prevents the

relitigation of a finally adjudicated claim and related matters that should have been

litigated in a prior suit. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992).

Where, as here, a party’s original suit was decided in federal court, we apply federal law

to determine whether res judicata will bar a subsequent claim asserted in state court. Ellis

v. Amex Life Ins. Co., 211 F.3d 935, 937 (5th Cir. 2000) (“The preclusive effect of a prior

federal court judgment is controlled by federal res judicata rules.”). Under federal law, a

claim is barred by res judicata if (1) the parties in both suits are identical or in privity, (2)

the prior judgment was rendered by a court of competent jurisdiction, (3) there is a final

judgment on the merits, and (4) the same cause of action is involved in both cases. United

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States v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994); Eagle Prop., Ltd. v. Scharbauer,

807 S.W.2d 714, 718 (Tex. 1990).

On appeal, Foster does not challenge Infotree’s summary judgment proof as to

any of these four elements. Instead, she alleges that the principles of res judicata do not

apply because the facts and law have changed since the prior judgment. See Marino v.

State Farm Fire & Cas. Ins. Co., 787 S.W.2d 948, 950 (Tex. 1990) (“[R]es judicata is not

a defense in a subsequent action if there has been a change in material facts, the

applicable statutory law, or the decisional law between the first judgment and the second

suit.”).

Specifically, Foster first claims that material facts have changed because Infotree’s

predecessor-in-title, Deutsche Bank, conducted a non-judicial foreclosure sale of the

property and Infotree subsequently purchased the property from Deutsche Bank.

Certainly, these developments would affect the viability of Foster’s wrongful foreclosure

claim that the federal court dismissed on the basis that the foreclosure had not taken

place, but Foster does not explain how these factual changes bear upon the claim at

issue in the instant lawsuit, i.e., the validity of Deutsche Bank’s lien, which was also raised

in the federal case.5 We therefore reject this argument. Secondly, Foster argues that the

parties’ legal rights or relations have changed because three court opinions issued after

the federal district court’s decision have changed the legal landscape on foreclosures of

Foster’s assertion that “the prior federal judgment simply dismissed [her] claims because a
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foreclosure had not yet taken place” is inaccurate. The federal district court also considered and rejected
Foster’s claim that the deed of trust failed to create a valid lien on her property, denied Foster’s request that
the court permanently enjoin defendants from foreclosing on the property, denied Foster’s request for
reformation of the deed of trust, and granted defendants’ motion for summary judgment.

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Texas homesteads. In particular, Foster cites Wood v. HSBC Bank USA, N.A., 505

S.W.3d 542 (Tex. 2016), Garofolo v. Ocwen Loan Servicing, L.L.C., 497 S.W.3d 474 (Tex.

2015), and Kyle v. Strasburger, 522 S.W.3d 461 (Tex. 2017), as recent decisions that

make the judgment in the prior federal suit obsolete.

Even if we assume that a change in the decisional law would entitle Foster to

relitigate her claim, we do not find that the cases she relies on would mandate a different

outcome. The premise underlying Foster’s claim is that the Texas Constitution requires

both spouses to sign a promissory note secured by homestead property for the noteholder

to have a foreclosure-eligible lien on the homestead. For support, Foster relies on section

50 of the Texas Constitution, which protects the homestead from foreclosure for the

payment of debts, subject to certain exceptions, including purchase money loans, home

equity loans, reverse mortgages, and the refinance of a homestead lien. TEX. CONST. art.

XVI, § 50(a), (c). In contrast to the detailed provisions related to home equity loans and

reverse mortgages, subsection 50(a) does not provide in-depth particulars related to

refinancing loans. Compare id. § 50(a)(6), (g), (k)-(p), (t), with id. § 50(a)(4), (e), (f).

Notably, the requirement that both spouses sign the underlying note in a purchase money

or refinance transaction is not set forth in the Texas Constitution. See TEX. CONST. art.

XVI, § 50(a); see also Alexander, 555 S.W.3d at 300 (Tex. App.—Dallas 2018, no pet.)

(noting that TEX. CONST. art. XVI, § 50(a)(6)(Q)(xi) does not require owner’s spouse to

consent to home equity note and declining to add such requirement by judicial fiat);

Blizzard, 702 Fed. App’x at 216-17 (5th Cir. 2017) (in suit involving home equity loan,

note holder was entitled to foreclose even though borrower’s spouse did not sign note,

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because spouse consented to lien by signing deed of trust, satisfying requirements of

TEX. CONST. art. XVI, § 50(a)(6)(A)).

The cases relied on by Foster, Wood, Garofolo, and Kyle, which are all cases

involving home equity loans, do not create such a requirement. None of these opinions

hold that where, as here, a spouse voluntarily signs a deed of trust creating a lien on the

homestead, the lien is invalid unless that spouse also signs as a borrower on the

underlying loan for the purchase or refinance of the homestead property. Thus, these

cases do not reflect a change in the decisional law that would overcome the res judicata

bar. Foster has not established that there has been a change in the law or facts giving

her new substantive rights; therefore, res judicata applies to her claims.

Because res judicata precludes Foster from attacking the validity of the lien on

which Deutsche Bank, Infotree’s predecessor-in-title, foreclosed and acquired title to the

property, Foster failed to raise a genuine issue of material fact to defeat summary

judgment. We thus hold that Infotree met its burden of showing that it was entitled to

summary judgment on its claim to quiet title. The trial court correctly denied Foster’s

motion for summary judgment and granted summary judgment in favor of Infotree.

Foster’s second, third, fourth, and fifth issues, all based on the propriety of the trial court’s

summary judgment rulings, are overruled.

Because we affirm the trial court’s judgment based on res judicata, we need not

address Infotree’s alternative grounds for summary judgment. TEX. R. APP. P. 47.1

(opinion should address only issues necessary to disposition of the appeal).

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 Conclusion

We conclude that Infotree conclusively established its right to summary judgment

and that Foster’s competing motion for summary judgment was properly denied. As such,

we affirm the judgment of the trial court.

Judy C. Parker
Justice

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