Harriet Nicholson v. the Bank of New York Mellon Fka the Bank of New York as Trustee for the Certificateholders of CWMBS, Inc., CWMBS Reforming Loan Remic Trust Certificates Series 2005-R2 Melanie Cowan Bank of America, N.A. ReconTrust Company, N.A. Countrywide Home Loans, Inc., and David Stockman

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00379-CV
___________________________

HARRIET NICHOLSON, Appellant

V.

THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS
TRUSTEE FOR THE CERTIFICATEHOLDERS OF CWMBS, INC., CWMBS
REFORMING LOAN REMIC TRUST CERTIFICATES SERIES 2005-R2;
MELANIE COWAN; BANK OF AMERICA, N.A.; RECONTRUST COMPANY,
N.A.; COUNTRYWIDE HOME LOANS, INC., AND DAVID STOCKMAN,
Appellees

On Appeal from the 342nd District Court
Tarrant County, Texas
Trial Court No. 342-262692-12

Before Bassel, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Wallach
 MEMORANDUM OPINION

I. Introduction

This case originated almost a decade ago with pro se1 appellant Harriet

Nicholson’s 2012 lawsuit challenging a wrongful home foreclosure. Nicholson,2 who

still lives in the home at issue, prevailed on the wrongful-foreclosure issue but

1
Pro se litigants are held to the same standards as licensed attorneys and must
comply with all applicable rules. Barcroft v. Walton, No. 02-16-00110-CV,
2017 WL 3910911, at *5 (Tex. App.—Fort Worth Sept. 7, 2017, no pet.) (mem. op.).
This is to ensure fairness in our treatment of all litigants through use of a single set of
rules. Id. The parties and this court are bound by the statutes, cases, and rules of
procedure that apply to the case. Id.
2
Nicholson and the parties she has sued in this case are not strangers to this
court. See Nicholson v. NationStar Mortg., LLC, No. 02-21-00074-CV,
2021 WL 3557080, at *1 (Tex. App.—Fort Worth Aug. 12, 2021, no pet.) (per curiam)
(mem. op.) (granting Nicholson’s unopposed motion to dismiss appeal); Nicholson v.
Harvey Law Grp. (Nicholson I), No. 02-20-00180-CV, 2021 WL 1134455, at *1 (Tex.
App.—Fort Worth Mar. 25, 2021, pet. denied) (mem. op.); In re Nicholson, No. 02-21-
00068-CV, 2021 WL 1011902, at *1 (Tex. App.—Fort Worth Mar. 17, 2021, orig.
proceeding) (per curiam) (mem. op.) (denying petition for writ of mandamus); In re
Nicholson, 02-20-00272-CV, 2020 WL 5525330, at *1 (Tex. App.—Fort Worth Sept.
15, 2020, orig. proceeding) (per curiam) (mem. op.) (same); Nicholson v. Stockman
(Nicholson II), No. 02-19-00103-CV, 2020 WL 241420, at *1 (Tex. App.—Fort Worth
Jan. 16, 2020, pet. denied); Nicholson v. Bank of Am., N.A. (Nicholson III), No. 02-19-
00085-CV, 2019 WL 7407739, at *1 (Tex. App.—Fort Worth Dec. 31, 2019, pet.
denied) (mem. op.); In re Nicholson, No. 02-19-00163-CV, 2019 WL 2111848, at
*1 (Tex. App.—Fort Worth May 14, 2019, orig. proceeding) (per curiam) (mem. op.)
(denying petition for writ of mandamus); In re Nicholson, No. 02-19-00022-CV,
2019 WL 490132, at *1 (Tex. App.—Fort Worth Feb. 7, 2019, orig. proceeding) (per
curiam) (mem. op.) (same); Nicholson v. Bank of New York Mellon as Tr. for
Certificateholders of CWMBS, Inc., No. 02-18-00035-CV, 2019 WL 406165, at *1 (Tex.
App.—Fort Worth Jan. 31, 2019, pet. denied) (per curiam) (mem. op.) (dismissing
appeal for want of jurisdiction); see also Nicholson v. Nationstar Mortg., LLC, No. 08-16-
00148-CV, 2016 WL 4208100, at *1 (Tex. App.—El Paso Aug. 10, 2016, no pet.)
(mem. op.) (dismissing appeal for want of prosecution after docket-equalization
transfer).

2
complains about the trial court’s summary judgments on her other claims and various

other rulings in favor of Appellees The Bank of New York Mellon fka the Bank of

New York as Trustee for the Certificateholders of CWMBS, Inc., CWMBS Reforming

Loan Remic Trust Certificates Series 2005-R2 (BONY); Melanie Cowan; Bank of

America, N.A.; ReconTrust Company, N.A.; Countrywide Home Loans, Inc.; and

David Stockman. 3 We affirm.

II. Background

A. Earlier Appeals involving the Same Facts and Same Parties

The instant appeal arises from the same facts as Nicholson’s earlier appeals in

this court in which we affirmed summary judgments for ReconTrust and BONY,

Nicholson I, 2021 WL 1134455, at *1,4 Stockman, Nicholson II, 2020 WL 241420, at *1,

and Bank of America and Countrywide. Nicholson III, 2019 WL 7407739, at *1. We

rely on our earlier opinions to present a complete factual picture.

In 2001, Nicholson executed a deed of trust to her home in Tarrant County in

favor of Mortgage Electronic Registration Systems, Inc. (MERS)—the nominee of the

lender, Mid America Mortgage, Inc. and its successors and assigns—to secure a

contemporaneous $125,048 promissory note for the home’s purchase. Nicholson I,

3
BONY, Bank of America, Countrywide, ReconTrust, and Cowan filed an
appellee’s brief together in this case; collectively, they are the BONY Appellees.
Stockman filed a separate appellee’s brief.
4
In Nicholson I, we also affirmed summary judgments for Harvey Law Group
and Nationstar Mortgage LLC, both of which played roles in the post-foreclosure
litigation involving Nicholson’s home. 2021 WL 1134455, at *1, *5.

3
2021 WL 1134455, at *1; Nicholson II, 2020 WL 241420, at *1 & n.1. Countrywide was

initially the loan’s servicer, and Bank of America became the loan’s servicer after

Countrywide assigned the loan to Bank of America’s predecessor by merger. Nicholson

I, 2021 WL 1134455, at *1. At some point after litigation began between these earlier

parties and others, Nationstar became the loan’s servicer. Id.

The deed of trust was recorded in Tarrant County. Nicholson II,

2020 WL 241420, at *1. After Nicholson defaulted, 5 ReconTrust was hired to initiate

the foreclosure. Nicholson I, 2021 WL 1134455, at *1. Bank of America appointed

Stockman as the substitute trustee to enforce the deed, and Stockman sold the

property to BONY at a July 3, 2012 nonjudicial foreclosure sale. Nicholson II,

2020 WL 241420, at *1.

However, the notice of foreclosure sale listed the Dallas County courthouse as

the sale’s location, rather than the Tarrant County courthouse.6 Nicholson III,

2019 WL 7407739, at *1. After BONY brought a successful forcible-detainer action

to evict her, Nicholson II, 2020 WL 241420, at *1, Nicholson sued for wrongful

5
According to the BONY Appellees, Nicholson “first defaulted on her loan in
2004, and has been almost perpetually in default on her loan since.” Documents
Nicholson attached to her summary-judgment response support that she became
delinquent on her monthly mortgage payments in July 2004 and then was granted two
loan modifications—one in 2006 and the other in 2009—but failed to comply with
their terms, resulting in the 2012 foreclosure that led to the instant litigation.
6
The portion of Grand Prairie in which Nicholson’s home is located is within
Tarrant County.

4
foreclosure and to stop her eviction. 7 Id.; Nicholson III, 2019 WL 7407739, at *1.

Nicholson brought a variety of claims—including violation of Civil Practice and

Remedies Code Section 12.002,8 negligence per se, gross negligence per se, fraud, and

requests for declaratory relief—in a variety of cases. Nicholson I, 2021 WL 1134455, at

*1; Nicholson III, 2019 WL 7407739, at *1. Nicholson unsuccessfully sought to

consolidate her cases, including the instant case filed in the 342nd District Court of

Tarrant County, a case she had filed in the 96th District Court of Tarrant County, and

cases she had filed in the 48th District Court of Tarrant County.

In the 48th Court, Bank of America and Countrywide each filed a motion for

summary judgment on identical bases—res judicata, collateral estoppel, and the

economic loss rule, as well as on no-evidence grounds—and the court granted the

motions. Nicholson III, 2019 WL 7407739, at *2. We affirmed the 48th Court’s

summary judgments on Nicholson’s tort claims against Bank of America and

Countrywide because Nicholson had failed to challenge every ground—including the

economic loss rule—upon which the summary judgments could have been granted.

Id. at *3. We affirmed the remainder of the summary judgments based on Nicholson’s

failure to explain how the record showed that she had provided controverting

7
Nicholson filed the instant case on November 5, 2012.
8
Under Civil Practice and Remedies Code Chapter 12, a person who owns an
interest in real property may bring an action to recover damages for a fraudulent lien
or claim against real property. See Tex. Civ. Prac. & Rem. Code Ann. § 12.003(a)(8); see
generally id. § 12.001(3) (defining “lien” to mean a claim in property for the payment of
a debt, including a security interest), § 12.002(a) (setting out elements of claim).

5
evidence to defeat Bank of America and Countrywide’s entitlement to summary

judgment on any of her claims, much less how any of the evidence raised a fact issue.

Id. at *3–4; see Tex. R. App. P. 38.1(i); see also Barcroft, 2017 WL 3910911, at

*5 n.11 (noting that pro se litigants tend to lose because their lack of legal education

or training tends to lead them to critical mistakes of form and substance).

While the instant suit was pending in the 342nd Court, Stockman executed a

rescission of the 2012 foreclosure sale, cancelled the prior substitute trustee’s deed

based on the foreclosure sale’s improper location, and recorded this instrument in the

Tarrant County real property records. Nicholson I, 2021 WL 1134455, at *1; Nicholson

II, 2020 WL 241420, at *1; Nicholson III, 2019 WL 7407739, at *1. During the instant

litigation, the 342nd Court found that the substitute trustee’s deed and Stockman’s

subsequent rescission were “invalid.”9 Nicholson II, 2020 WL 241420, at *1; Nicholson

III, 2019 WL 7407739, at *1.

In the 48th Court, Stockman moved for no-evidence summary judgment on

Nicholson’s claims against him for fraud and conspiracy to commit fraud, and the trial

court granted the motion. Nicholson II, 2020 WL 241420, at *1, *3. Nicholson

amended her petition, raised new claims against Stockman for violation of Civil

9
The BONY Appellees stipulated during this case’s 2017 summary-judgment
hearing that the substitute trustee’s deed and rescission document were void. The trial
court observed, “[Y]ou’re essentially conceding there hasn’t been anything wrongful
about her possession of the property,” noting that none of the BONY Appellees’
legal fees should be added to the balance of Nicholson’s loan. The BONY Appellees’
counsel agreed and said that his only caveat was that Nationstar, as the current loan
servicer, might disagree and that he did not represent Nationstar.

6
Practice and Remedies Code Section 12.002, negligence per se, gross negligence, and

declaratory relief, and again raised claims against him for fraud and conspiracy to

commit fraud. In a summary-judgment motion, Stockman raised res judicata on the

old claims and argued that there was no evidence to support Nicholson’s new claims

against him. Id. The 48th Court granted the motion. Id.

On appeal, Nicholson argued that material fact issues on each of her claims

precluded summary judgment. Id. at *2. However, she failed to explain what specific

evidence supported each element of her claims, to discuss what those elements were,

or to parse each ground raised in the no-evidence motion. Id. at *3 (observing that

Nicholson’s brief was a flagrant violation of the procedural rules and concluding that

she had failed to present an error as to summary judgment due to her inadequate

briefing). Accordingly, we affirmed the trial court’s judgment. Id. at *4.

Nicholson’s underlying loan remained in default. Nicholson I, 2021 WL 1134455,

at *1–2, *4. On February 17, 2015, Countrywide, through Nationstar as its attorney-

in-fact, assigned the 2001 deed of trust to BONY. And in April 2016, Harvey Law

Group, Nationstar’s counsel, notified Nicholson that her underlying loan remained in

default, id. at *2, *4, reminding her that the note had been accelerated on April 24,

2012, and informing her that, pursuant to Civil Practice and Remedies Code Section

7
16.038, “Nationstar . . . and the lienholder have elected to rescind the acceleration of

the maturity of the Indebtedness.” See Tex. Civ. Prac. & Rem. Code Ann. § 16.038. 10

Nicholson then sued Harvey Law Group, ReconTrust, Nationstar, and BONY

in the 48th Court, asserting that they had made material misrepresentations and had

knowingly filed documents that had falsely clouded her title, constituting negligence

and gross negligence and violating Civil Practice and Remedies Code Section 12.002.

Nicholson I, 2021 WL 1134455, at *2. She also raised claims for fraud and conspiracy to

commit fraud and sought numerous declarations regarding her property’s title. Id.

BONY, Nationstar, and ReconTrust filed traditional motions for summary judgment,

arguing that Nicholson had failed to raise a genuine issue of material fact on each

element of her claims for affirmative relief, and Harvey Law Group moved for a

traditional summary judgment based on the affirmative defense of attorney immunity.

10
Section 16.038 was added to the Civil Practice and Remedies Code in
2015 but applies to a maturity date accelerated before, on, or after the act’s effective
date and to any notice of rescission or waiver of an accelerated maturity date served
before, on, or after the act’s effective date. Act of May 26, 2015, 84th Leg., R.S., ch.
759, §§ 1–3, 2015 Tex. Sess. Law Serv. 2308, 2308–09 (codified at Tex. Civ. Prac. &
Rem. Code Ann. § 16.038). Section 16.038 provides that if the maturity date of a note
or obligation payable in installments is accelerated, and the accelerated maturity date is
rescinded or waived in accordance with Section 16.038 before the limitations period
expires, the acceleration is deemed rescinded and waived and the note or obligation
“shall be governed by Section 16.035 as if no acceleration had occurred.” Tex. Civ.
Prac. & Rem. Code Ann. § 16.038(a). Section 16.035 provides that a person must
bring suit for the recovery of real property under a real property lien or the
foreclosure of a real property lien “not later than four years after the day the cause of
action accrues.” Id. § 16.035(a). A notice served under Section 16.038 does not affect a
lienholder’s right to accelerate the maturity date of the debt in the future, nor does it
waive past defaults. Id. § 16.038(d).

8
Id. Nicholson moved for a partial traditional summary judgment on her declaratory-

judgment claims. Id. The trial court granted the defendants’ motions and entered a

final judgment dismissing Nicholson’s claims. Id.

On appeal, Nicholson argued that she had raised genuine issues of material fact

on her claims, that Harvey Law Group was not entitled to attorney immunity, and

that the trial court had erred by denying her motion for partial summary judgment. Id.

at *2, *4. We noted that “[a]s in her prior two appeals from the severed actions,[11]

Nicholson wholly fails to explain what specific evidence supported each element of

her numerous claims or to even discuss what those elements are.” Id. at *3. As to all

of the appellees in that case except Harvey Law Group, we held that Nicholson’s

defective briefing was not readily correctable or harmless and that “[e]ven under a

liberal construction, her briefing is a flagrant violation of the procedural rules,

imposing an unreasonable burden on this court to attempt to address her [summary-

judgment] issue.” Id. When the extent of her briefing on the declaratory-judgment

claim amounted to a bare statement of the presented point, we likewise held that she

had insufficiently presented that issue for our review. Id. at *4.

With regard to Harvey Law Group, we stated that all of Nicholson’s claims

against the firm related to actions it had performed within the course and scope of its

representation of Nationstar and Nationstar’s legal interests and thus that the firm had

A severance splits a single suit into two or more independent actions, each
11

action resulting in an appealable final judgment. In re T.T.F., 331 S.W.3d 461,
477 (Tex. App.—Fort Worth 2010, no pet.).

9
conclusively established that it was entitled to immunity for its actions taken on

Nationstar’s behalf. Id. at *3.

B. The Instant Case

This case took a detour of several years in federal court. In her sixth amended

petition, filed in May 2017, Nicholson sued BONY, Cowan, Bank of America,

ReconTrust, Stockman, Nationstar, Countrywide, and Harvey Law Group. The trial

court granted the BONY Appellees’ motion to strike Nationstar and Harvey Law

Group from the case and their motion to strike Nicholson’s seventh amended

petition, denied Nicholson’s motion for leave to file her seventh amended petition,

declared the foreclosure and rescission void and granted a partial summary judgment

to Nicholson on that basis, granted the BONY Appellees’ traditional and no-evidence

motion for summary judgment “with regard to all remaining claims,” and awarded

costs to Nicholson as the prevailing party on the wrongful-foreclosure issue.

Two years passed while the parties and courts debated whether the trial court’s

judgment was final and appealable, 12 and in 2019, a trial date was set as to Stockman

and Countrywide. Stockman filed a motion for summary judgment in April 2019.

12
During the interim, the then-judge of the 342nd Court, the Honorable J.
Wade Birdwell, was appointed to this court. See Office of the Governor of Texas,
Governor Abbott Appoints Birdwell Justice of the Second Court of Appeals (Nov. 10, 2017),
https://gov.texas.gov/es/news/post/governor-abbott-appoints-birdwell-justice-of-
the-second-court-of-appeals (last visited Mar. 23, 2022). The Honorable Kimberly
Fitzpatrick was appointed to the 342nd Court on June 26, 2018. See Office of the
Governor of Texas, Governor Abbott Appoints Fitzpatrick Judge of the 342nd Judicial District
Court (June 26, 2018), https://gov.texas.gov/news/post/governor-abbott-appoints-
fitzpatrick-judge-of-the-342nd-judicial-district-court (last visited Mar. 23, 2022).

10
Countrywide filed a motion for summary judgment a month later. The trial court’s

amended final judgment granted summary judgment for Stockman and Countrywide

and incorporated the earlier summary judgment order.

C. Briefing

Nicholson initially filed a brief in this court raising twelve points, in which she

complained that the trial court had erred by granting summary judgment for the

Appellees 13 and by committing other errors. 14 We notified Nicholson that her brief

had failed to comply with our briefing rules. Specifically, her brief did not list all of the

parties and counsel, see Tex. R. App. P. 38.1(a); it did not contain a table of contents,

see Tex. R. App. P. 38.1(b); it did not contain an index of authorities, see Tex. R. App.

P. 38.1(c); it did not present the issues in the order indicated in the rule, see generally

Tex. R. App. P. 38.1; it did not support the fact statement with record references, see

13
In her first three points in her original brief, Nicholson complained that the
trial court had erred by granting summary judgment for the Appellees because of
outstanding fact issues and the Appellees’ failure to prove all of the elements of their
affirmative defenses and by granting summary judgment for Bank of America,
ReconTrust, and Cowan because they had no answer on file at the time of the
summary-judgment hearing.
14
In her remaining points in her original brief, Nicholson asserted that the trial
court had abused its discretion by striking her seventh amended petition and failing to
exercise jurisdiction over the claims in it; by denying her “Motion for Nunc Pro Tunc
to file [her] Response to [the Appellees’] Traditional and No-Evidence Motion for
Summary Judgment filed on June 26, 2017”; by striking Nationstar and Harvey Law
Group from the lawsuit; and by denying her verified plea in abatement, her motion to
reinstate Nationstar and Harvey Law Group as parties, her motion to amend the
scheduling order, her motion to modify the final judgment, and her motion for new
trial.

11
Tex. R. App. P. 38.1(g); it did not contain a summary of her argument, see Tex. R.

App. P. 38.1(h); it did not contain a clear and concise argument for the contentions

made, with appropriate citations to legal authorities and to the record, see Tex. R. App.

P. 38.1(i); it did not contain a prayer for relief, see Tex. R. App. P. 38.1(j); it did not

contain an appendix, see Tex. R. App. P. 38.1(k); it did not contain a certificate of

compliance, see Tex. R. App. P. 9.4(i); it did not contain a certificate of service, see Tex.

R. App. P. 9.5; and it was not signed, see Tex. R. App. P. 9.1.

We warned Nicholson that if she failed to file an amended brief that complied

with the above rules, we could strike her brief and dismiss the appeal or consider

waived any noncomplying points. See Tex. R. App. P. 38.8(a), 38.9(a), 42.3. We also

informed Nicholson that “[n]o additional or different points should be raised in the

amended brief” and that if she wanted to file an amended brief that raised additional

or different points, she would first have to file a motion and obtain an order from the

court permitting her to do so. Nicholson did not file a motion requesting leave to

raise additional or different points.

Nicholson filed an amended brief. In the amended brief, she raises eight issues,

only some of which overlap with her original twelve points. Nicholson complained in

her amended brief that (1) fabricated evidence by Kelly Harvey15 constituted a fraud

Kelly Harvey is the attorney with the Harvey Law Group who represented
15

Nationstar.

12
upon the court and voided the trial court’s judgment; 16 (2) the trial court erred by

failing to file her response to the Appellees’ traditional and no-evidence motion for

summary judgment [formerly part of her fifth point]; (3) the trial court erred by

granting summary judgment for BONY on its affirmative defense of waiver because

BONY failed to prove all of the elements [formerly part of her second point]; (4) the

trial court erred by granting summary judgment for Bank of America, ReconTrust,

and Cowan because they did not have an answer on file at the time of the summary-

judgment hearing [formerly part of her second point]; (5) the trial court abused its

discretion by striking Nationstar and Harvey Law Group [formerly her fourth point];

(6) the trial court abused its discretion by striking Nicholson’s seventh amended

petition [formerly her third point]; (7) the trial court erred by granting Stockman’s

summary judgment on his res judicata affirmative defense because he failed to prove

all of its elements [formerly part of her second point]; and (8) the trial court erred by

granting summary judgment for BONY and Countrywide because there were genuine

issues of material fact on at least one element of each of her claims, precluding

summary judgment [formerly part of her first point].

16
Nicholson had moved to strike Harvey’s affidavit, arguing that the affidavit
was based on hearsay; that the affidavit was vague, ambiguous, conclusory,
speculative, and irrelevant; that the documents attached to it were not trustworthy;
and that the affiant was not competent to testify and showed a lack of personal
knowledge. Nicholson’s complaint in her amended brief does not comport with the
objections she raised in the trial court, and she did not request and obtain permission
from this court to raise this additional issue in her amended brief. Accordingly, we will
not address this issue. See Tex. R. App. P. 33.1, 47.1.

13
 We will address the issues that are raised in both Nicholson’s original, defective

brief and in her amended brief but not the new issues that she did not receive

permission to include or the ones that she abandoned when her amended brief

replaced her original brief.

III. Amended Pleadings

In Issue 6/Point 3, Nicholson argues that the trial court abused its discretion

by striking her seventh amended petition.

Under Rules of Civil Procedure 63 and 66, a trial court has no discretion to

refuse an amendment unless (1) “the opposing party presents evidence of surprise or

prejudice” or (2) “the amendment asserts a new cause of action or defense, and thus is

prejudicial on its face, and the opposing party objects to the amendment.” Greenhalgh

v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990). The burden of showing

prejudice or surprise rests on the party resisting the amendment. Id. However, the trial

court may conclude that the amendment is on its face calculated to surprise or that

the amendment would reshape the cause of action, prejudicing the opposing party and

unnecessarily delaying trial. Id. at 940. We review a trial court’s denial of leave to file

amended pleadings for an abuse of discretion. Watson v. Tipton, 274 S.W.3d 791,

796 (Tex. App.—Fort Worth 2008, pet. denied) (noting that for purposes of Rule 63,

a summary-judgment proceeding is a trial).

In her sixth amended petition, which she filed on May 18, 2017, Nicholson

sued Cowan, BONY, Bank of America, ReconTrust, Stockman, Nationstar,

14
Countrywide, and Harvey Law Group and, as to all of the defendants, she sought a

declaratory judgment and alleged claims for violation of Civil Practice and Remedies

Code Section 12.002, for negligence per se as to Section 12.002 and Penal Code

Sections 37.09, 37.10, 32.46, and 32.49,17 for gross negligence per se, for fraud, and

for trespass to try title. She also sought to set aside the foreclosure sale, to cancel the

trustee’s deed, and to recover title and to quiet title. Nicholson alleged violations of

Property Code Section 51.00218 as to Stockman and Cowan, sought to expunge or seal

the record of the forcible-entry-and-detainer suit, and sought exemplary damages. The

BONY Appellees filed their traditional and no-evidence motion for summary

judgment on June 1, 2017.

Three weeks after the BONY Appellees filed their summary-judgment motion,

on June 22, 2017, Nicholson filed her seventh amended petition.19 She sued BONY

and Nationstar for violating Section 12.002; BONY for violating Penal Code Sections

17
Penal Code Section 37.09 provides that tampering with or fabricating physical
evidence is a criminal offense. Tex. Penal Code Ann. § 37.09. Section 37.10 provides
that tampering with a governmental record is a criminal offense. Id. § 37.10. Section
32.46 provides that the fraudulent securing of a document’s execution is a criminal
offense. Id. § 32.46. And Section 32.49 provides that the refusal to execute the release
of a fraudulent lien or claim is a criminal offense. Id. § 32.49.

Property Code Section 51.002 addresses the sale of real property under a
18

power of sale conferred by a deed of trust. See Tex. Prop. Code Ann. § 51.002.

In her seventh amended petition, Nicholson abandoned her claims against
19

Stockman and Countrywide.

15
32.46 and 32.49; BONY, Harvey Law Group, and Kelly Harvey20 for violating Penal

Code Sections 37.02, 37.03 and 37.06;21 all defendants for negligence and gross

negligence per se, to quiet title, and for trespass to try to title; ReconTrust, Stockman,

and Cowan for violating Property Code Section 51.002; Bank of America, BONY,

and Nationstar for violating the Texas Consumer Credit Code and Texas Debt

Collection Practices Act; BONY, Bank of America, and ReconTrust for negligent

misrepresentation; BONY, Bank of America, ReconTrust, and Cowan for common

law fraud; and Bank of America and Nationstar for negligence. She again sought a

declaratory judgment against all of the defendants and sought exemplary damages.

The next day, the BONY Appellees moved to strike Nicholson’s seventh

amended petition, pointing out that they had filed their traditional and no-evidence

motion for summary judgment on June 1 and had set the motion for a hearing on

June 30, and that Nicholson had filed the seventh amended petition without obtaining

leave of court. The BONY Appellees complained that Nicholson’s late filing

contained new causes of action and requests for relief, constituted surprise, attempted

to circumvent their pending summary-judgment motion on the sixth amended

petition, and would cause unnecessary delay in finally resolving the matter. On July 3,

20
Nicholson did not identify Kelly Harvey as a new party in the “Parties”
section of her petition but identified Harvey as a defendant in the “Causes of Action”
section of the petition.
21
Penal Code Sections 37.02, 37.03 and 37.06 address perjury, a Class A
misdemeanor; aggravated perjury, a third-degree felony; and inconsistent statements.
See Tex. Penal Code Ann. §§ 37.02–.03, 37.06.

16
2017, Nicholson filed an opposed motion for leave to file her seventh amended

petition.

The trial court heard the parties’ motions on the seventh amended petition on

August 18, 2017. Nicholson argued that she had filed the seventh amended petition

eight days before the June 30, 2017 summary-judgment hearing and that Rules of Civil

Procedure 63 and 66 allowed her to amend the petition as long as there was no

surprise or prejudice to the opposing party. She argued that her allegations had

remained the same and that “the cause[s] of action[] were added according to those

allegations that were in the sixth amended petition.” Nicholson repeated, “I added

causes of action[] that reflected those allegations.” BONY’s counsel replied that

Nicholson had tried to add new parties who she had already sued in other lawsuits

and that there was no good basis for the trial court to allow Nicholson to amend her

pleadings at such a late date. The trial court denied Nicholson’s motion and granted

the BONY Appellees’ motion.

Because Nicholson’s seventh amended petition reflects that she added new

causes of action and a new party, we cannot say that the trial court abused its

discretion by denying leave to file it or by granting the BONY Appellees’ motion to

strike it. See Greenhalgh, 787 S.W.2d at 939–40. We overrule Issue 6/Point 3.

IV. Additional Parties

In Issue 5/Point 4, Nicholson argues that the trial court abused its discretion

by striking Nationstar and Harvey Law Group.

17
 Procedural matters, such as joinder and the consolidation of claims, are left to

the trial court’s broad discretion, and such rulings will not be overturned absent an

abuse of discretion. Bennett v. Grant, 525 S.W.3d 642, 653–54 (Tex. 2017). A trial

court’s enforcement of its scheduling orders is likewise reviewed for an abuse of

discretion. Jones v. Cortes, No. 02-10-00304-CV, 2011 WL 4008021, at *4 (Tex. App.—

Fort Worth Sept. 8, 2011, no pet.) (mem. op.). An abuse of discretion occurs when

the trial court acts without reference to any guiding rules or principles. Bennett,

525 S.W.3d at 653. Rule of Civil Procedure 37 provides that additional parties may not

be brought into a suit “at a time nor in a manner to unreasonably delay the trial of the

case.” Tex. R. Civ. P. 37.

Nicholson filed her lawsuit on November 5, 2012, and the trial court entered a

scheduling order on February 17, 2017. Under the February 17, 2017 scheduling

order, discovery had already closed, dispositive motions were due June 1, 2017, and

trial was set for August 28, 2017. Nicholson filed her sixth amended petition on May

18, 2017, adding Stockman, Nationstar, Countrywide, and Harvey Law Group.

On June 5, 2017, the BONY Appellees moved to strike Nationstar and Harvey

Law Group as additional parties, arguing that their addition would cause undue delay,

that Nicholson had already tried to consolidate the case against Nationstar in the 48th

Court (where Nationstar had been represented by Harvey Law Group), that the trial

court had already denied that motion to consolidate, and that Nationstar had already

prevailed against Nicholson on summary judgment in the 48th Court.

18
 In her response, Nicholson argued that Nationstar and Harvey Law Group

were necessary and indispensable parties, that her claims against Nationstar were not

barred by res judicata, and that her claims against Harvey Law Group were not barred

by attorney immunity. Cf. Nicholson I, 2021 WL 1134455, at *3–4.

At the June 15, 2017 hearing on the motion, when Nicholson complained that

her other lawsuit involving Nationstar “was for a different account,” the trial court

replied that she had “had a reasonable opportunity to bring whatever lawsuit and

whatever claims [she] had against Nationstar” in her case in the 48th Court. See id.; see

also Barr v. Resol. Tr. Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex. 1992)

(explaining that claim preclusion prevents the relitigation of a claim that has been

finally adjudicated, as well as related matters that, with the use of diligence, should

have been litigated in the prior suit and that issue preclusion prevents relitigation of

particular issues already resolved in a prior suit).

In response to the trial court’s question about the underlying promissory note,

BONY’s counsel stated that while there might be a new loan number, there was only

one promissory note that related to the property—it was not a different loan—and

that Nationstar was the post-foreclosure loan servicer. The trial court informed

Nicholson that the only issue in the case was wrongful foreclosure and not any post-

foreclosure conduct because if the foreclosure was wrongful, then “that will have

effects with regard to everything else, including Nationstar.” The trial court granted

the BONY Appellees’ motion, struck Nationstar and Harvey Law Group from

19
Nicholson’s sixth amended petition, and ordered that no additional parties would be

joined.

Under the circumstances presented here, we cannot say that the trial court

abused its broad discretion by granting the motion to strike. See Bennett, 525 S.W.3d at

653–54. By the time Nicholson sought to add Nationstar and Harvey Law Group in

May 2017, the case had already been pending for five years, and trial had been set for

just a few months later, in August 2017. The trial court could have reasonably

concluded at that time that adding Nationstar and Harvey Law Group to the case

would unreasonably delay the trial. See Tex. R. App. P. 37; Jones, 2011 WL 4008021, at

*4. Accordingly, we conclude that the trial court did not abuse its discretion, and we

overrule Issue 5/Point 4.

V. Summary Judgment

Nicholson complains (1) that the trial court erred by failing to file her response

to the BONY Appellees’ traditional and no-evidence motion for summary judgment;

(2) that the trial court erred by granting summary judgment for BONY on its

affirmative defense of waiver; 22 (3) that the trial court erred by granting summary

22
Nicholson described this as an “unpled affirmative defense of waiver of its
right to foreclose” in her motion for new trial. At the November 30, 2020 hearing on
her motion, the BONY Appellees’ counsel explained that it appeared that Nicholson
had been “confusing the principle of waiver as supporting an abandonment [of
acceleration] argument versus waiver of right to foreclose,” and he pointed out that
the deed of trust included a nonwaiver clause that provided that it did not waive its
right to foreclose just by forbearing to foreclose. We do not reach Nicholson’s waiver-
ground argument because, as set out below, the trial court had many grounds—

20
judgment for Bank of America, ReconTrust, and Cowan because they did not have an

answer on file at the time of the summary judgment hearing; (4) that the trial court

erred by granting summary judgment for Stockman on his res judicata affirmative

defense because he failed to prove all of its elements; and (5) that the trial court erred

by granting summary judgment for BONY and Countrywide because there were

genuine issues of material fact on at least one element of each of her claims,

precluding summary judgment.

A. Nicholson’s Summary-Judgment Response

Nicholson complains that the trial court erred by failing to file her response to

the BONY Appellees’ traditional and no-evidence motion for summary judgment.

The BONY Appellees filed their traditional and no-evidence motion for

summary judgment on June 1, 2017, on all of the claims in Nicholson’s sixth amended

petition, and set the motion for a hearing on June 30.

On June 26, Nicholson filed a “Motion for Leave to File Plaintiff’s

Response/Objection to Defendants’ Motion for Traditional and No-Evidence

Motion for Summary Judgment.” She stated that she had tried to file her response and

objections through the e-filing system on June 23 but had been unable to do so. She

copied into her motion the e-file submission failure document showing that on June

several unchallenged on appeal—upon which to support summary judgment for the
BONY Appellees. See Tex. R. App. P. 47.1.

21
23, 2017, at 11:59 p.m., she had attempted to file a document and showing an error

regarding some of her attachments.

The record reflects that the trial court clerk returned the filings to Nicholson

because the clerk’s office was not allowed to accept documents containing unredacted

social security numbers or loan numbers on them and that the clerk informed

Nicholson of which documents required redaction. The clerk’s office returned the

first new attempt at filing at 11:04 a.m. on June 26, 2017, informing Nicholson that

Exhibits B, F, J, and M contained items requiring redaction and identifying those

items. The clerk’s office returned the second new attempt at filing at 11:34 a.m. that

day, informing Nicholson that Exhibits F and M still needed items redacted,

identifying those items, and asking her to “[p]lease review, redact, and resubmit.” The

clerk’s office returned the third new attempt at filing at 1:07 p.m. that day, informing

Nicholson that “Exhibit F STILL has your social security number on page 99. Please

redact and resubmit.”

Nicholson asked the trial court to accept her response as timely and stated that

she had not filed it for delay, harassment, or surprise.

At the initial hearing on BONY’s traditional and no-evidence summary-

judgment motion on June 30, the trial court noted that Nicholson’s “response didn’t

get filed because it got rejected in some way, shape or form. So I actually haven’t read

her response . . . [but] you clearly have gotten the response.” BONY’s counsel replied

that there was no objection to Nicholson’s response’s being filed late. The trial court

22
stated, “That’s fine. I’ll grant leave, but if you’ve got an extra copy and I need to file it,

I’ll file it.” The trial court then ordered a continuance until August 18—ten days

before the August 28, 2017 trial setting—and asked Nicholson to “please make the

redactions and file your response to their motion for summary judgment as soon as

possible.”

Nicholson subsequently stated in an April 2019 filing that she had been able to

file her summary-judgment response and objections on August 18, 2017. However, at

an April 2019 hearing, she stated that she had just assumed that it had been filed. The

record contains Nicholson’s email exchange with the district clerk in April 2019,

informing her that no documents would be backdated. The trial court stated, “[T]he

record doesn’t show that you ever tried to go back and refile it after [the previous

342nd judge] gave you permission to do so.” A copy of Nicholson’s 2017 response,

file-marked April 9, 2019, is contained within this record.

As set out above, the BONY Appellees received Nicholson’s response to the

summary-judgment motion, and the trial court granted her additional time to redact

and refile it, although she failed to do so. The record reflects no abuse of discretion by

the trial court, and we overrule Issue 2/Point 5.

B. Answers on File

Nicholson complains that the trial court erred by granting summary judgment

for Bank of America, ReconTrust, and Cowan because they did not have answers on

file at the time of the summary-judgment hearing. BONY filed a general denial in

23
2013. At a hearing in June 2017, the trial court tried to explain to Nicholson that an

original answer acts as an answer to any amendment and that “[t]he general denial has

the effect of answering.” Nicholson responded, “Well, in that particular denial, the

only part[y] to the case at that time was [BONY]. There were no other parties to that

answer. So the other defendants that they’re currently representing, the Bank of

America, the ReconTrust, and Melanie Cowan, they have not answered.”

The trial court asked the BONY Appellees’ counsel if they had answered in

federal court, and he stated that they had. See Tex. R. Civ. P. 237a (stating that “[n]o

default judgment shall be rendered against a party in a removed action remanded from

federal court if that party filed an answer in federal court during removal”); Toliver v.

Dall. Fort Worth Hosp. Council, 198 S.W.3d 444, 449 (Tex. App.—Dallas 2006, no pet.)

(stating that when appellees filed an answer in federal court, they did not also have to

file an answer in state court to avoid a default judgment). Nicholson subsequently

attached to her opposed motion for leave to file her seventh amended petition a copy

of the answers filed in federal court by BONY, Bank of America, ReconTrust, and

Cowan. And Bank of America, ReconTrust, and Cowan joined BONY in its

traditional and no-evidence motion for summary judgment in June 2017. See

Zimmelman v. Harris Cnty., 819 S.W.2d 178, 181 (Tex. App.—Houston [1st Dist.] 1991,

no writ) (explaining that named defendant appeared in the lawsuit pursuant to its

motion for summary judgment). Compare Tex. R. Civ. P. 166a(a) (stating that claimant

may seek summary judgment after the adverse party has appeared or answered), with

24
Tex. R. Civ. P. 166a(b) (stating that defendant may “at any time” move for summary

judgment in his favor). Accordingly, the trial court did not err by granting summary

judgment for Bank of America, ReconTrust, and Cowan based on this argument, and

we overrule Issue 4/Point 2.

C. BONY Appellees’ Traditional and No-Evidence Motion

The BONY Appellees filed their June 1, 2017 traditional and no-evidence

motion for summary judgment on all of the claims in Nicholson’s sixth amended

petition.23 In the traditional portion of their motion, they incorporated by reference all

of the summary-judgment evidence that Nicholson had filed earlier in the case, along

with the affidavit of Kelly Harvey, which sponsored the 2016 notice of rescission of

acceleration under Section 16.038 and proof of mailing the notice of rescission as

business records; a copy of the 2001 deed of trust; and a copy of a May

2012 “Corporation Assignment of Deed of Trust/Mortgage” of the original deed of

trust, from MERS to BONY.

The BONY Appellees set forth grounds that included, among other things,

that Nicholson’s tort claims—negligence per se, gross negligence per se, and fraud—

were barred by the economic loss rule because the sole basis for liability was the note

and deed of trust. See generally Nicholson III, 2019 WL 7407739, at *2–4. They stated

that Nicholson’s Section 12.002 false-lien claim failed because a business-purposes

23
Because Nicholson does not address all of the claims upon which summary
judgment was granted, in the interests of brevity, we do not include those portions of
the parties’ motions and responses.

25
assignment—such as the corporate assignment of the deed of trust to BONY—does

not show an intent to inflict financial injury or mental anguish; because Nicholson had

failed to specify which defendant or defendants had fraudulently recorded a lien; and

because Nicholson had not and could not show any damages resulting from

recordings in the official public records. They further argued that because Nicholson

could not prevail on any of her claims, she was not entitled to declaratory judgments

on them and otherwise lacked standing to seek a declaratory judgment24 and was not

entitled to attorney’s fees—particularly as she was not an attorney and had not

retained one—or exemplary damages. The BONY Appellees asserted that Nicholson

could not prevail on damages regarding her property claims because she remained in

possession of the home and that, at best, she could show that she resided in a

property that was subject to a lien securing a defaulted loan agreement.

In the no-evidence portion of their motion, the BONY Appellees set forth the

following grounds: that there was no evidence that their assignment falsely

represented their interest in the property; no evidence that they had any intent to

cause Nicholson to suffer financial injury, mental anguish, or emotional distress; no

evidence that Nicholson had suffered damages as a result of the recordings in the

official public records; and no evidence that they knew the lien was fraudulent or

24
The “waiver” argument that Nicholson references in her amended brief is
made under the subsection of the summary-judgment motion addressing declaratory
judgments, in which the BONY Appellees argued that Nicholson could not obtain a
declaration that foreclosure was barred by limitations because the original foreclosure
sale occurred within the limitations period and the acceleration was timely rescinded.

26
intended any injury under Section 12.002(a). They stated that Nicholson could not

sustain a negligence per se claim because she had no evidence of a statutory violation,

no evidence that she was within the class of persons a statute was designed to protect,

and no evidence of how she was injured. They argued that Nicholson could not

sustain a claim for gross negligence per se because she had no evidence that they had

put her at risk by acting with conscious indifference. They argued that Nicholson had

no evidence of recklessness, reliance, or damages to support her fraud claim.25 And

they argued that Nicholson had no evidence that her interest in the property was

superior to theirs or that their claim to the property was unenforceable, defeating both

her quiet-title and trespass-to-try-title claims.

In her response, Nicholson argued that limitations had run on the BONY

Appellees’ ability to foreclose on her note and that they did not deserve “a second bite

at the apple” when the first attempted foreclosure sale had been void; that Nationstar

(who was not in the case at this point) as BONY’s agent had presented a document

with knowledge that it was fraudulent, had intended the fraudulent document to be

given legal effect, and had intended to cause her physical or financial injury or mental

anguish, in violation of Civil Practice and Remedies Code Section 12.002 as well as

under a negligence per se theory; that the BONY Appellees had committed fraud

when they represented to her that they had effectuated a valid foreclosure sale and

The BONY Appellees also argued that Nicholson’s fraud claim failed because
25

she did not identify any information about which representations were made, by
whom, and why or how she had justifiably relied on them.

27
were awarded a judgment of possession and then “clandestinely executed, filed, and

recorded” a notice contending that the lien and underlying debt had been reinstated

and “repeatedly t[old her] wrong and inconsistent information to coerce her to start

repaying the loan”; and as to her quiet-title and trespass-to-try-title claims, she

referenced her 2001 warranty deed and possession of the home since January 2001,

and BONY’s void 2012 substitute trustee’s deed.

To her response, Nicholson attached her unsworn declaration in which she

sponsored a variety of documents—including medical records—and recounted the

damages that she had suffered from the actions of BONY, Harvey (not a party),

Stockman, Bank of America, Nationstar (not a party), and Harvey Law Group (not a

party), 26 and the legal proceedings she had been involved in: two in the Tarrant

County Justice of the Peace Court Number 7, one in County Court at Law Number 1,

four federal proceedings, six Tarrant County district court proceedings, two Fifth

26
Nicholson claimed in her unsworn declaration that she had “suffered severe
emotional stress damage as a result of the ongoing harassment and reckless disregard,
and intentional conduct by Defendants,” that she was “no longer able to work due to
chronic depression and anxiety” and was fired in November 2015 “due to excessive
absences from the stress in this case,” and that she had incurred medical expenses
exceeding $30,000. To her declaration, she attached medical records showing that in
2014, 2015, and 2016, she had “present[ed] with anxiety,” “general anxiety disorder,”
and depression; that she had also been treated for anxiety and depression ten years
before; and that she had been prescribed medication for insomnia. Her medical
records also showed that she suffered from high blood pressure treated with
medication, that she was billed $6,620.25 in January 2015 for, among other things, a
urine pregnancy test and basic metabolic panel, and that she was billed $4,283.75 in
October 2015 for a comprehensive metabolic panel and routine EKG, among other
things.

28
Circuit proceedings, forty-five Consumer Financial Protection Bureau complaints, one

HUD Inspector General complaint, and one Texas Attorney General complaint

“seeking justice to remedy Defendants’ wrongs and stop Defendants’ ongoing

fraudulent activities.”

Nicholson argues on appeal that the trial court erred by granting summary

judgment for the BONY Appellees because there were genuine issues of material fact

on at least one element of each of her claims.27 Specifically, she argues that the trial

court erred (1) by granting BONY’s motion on her claim for declaratory judgment;

(2) by granting BONY’s motion on her claims for negligence per se, gross negligence

per se, and fraud; (3) by granting BONY’s motion on her claim for violation of Civil

Practice and Remedies Code Section 12.002; and (4) by granting BONY’s motion on

her quiet-title and trespass-to-try-title claims.

27
Nicholson addresses only her Section 12.002, fraud, negligence per se, gross
negligence per se, and declaratory-judgment claims in her brief. See Tex. R. App. P.
38.1(i). In her original brief and in her amended brief, Nicholson also—for the first
time in the case—attempts to make an adverse possession argument. In her sixth
amended petition, Nicholson alleged that she received the deed in 2001 and had
remained in possession of it since then, that BONY received a void deed on July 3,
2012, and that BONY received a deed-of-trust assignment on February 27, 2015. She
concluded by stating, “As such, Defendants’ claims and interest to the title and
possession of the Property are improper. Moreover, to the extent BONY claims title
to the property, Plaintiff ha[s] a superior claim to title out of a common source.”
Nicholson made the same argument in her summary-judgment response. Because she
did not raise an adverse-possession argument in the trial court, we will not address it
as a ground for reversal. Cf. Brumley v. McDuff, 616 S.W.3d 826, 835 (Tex. 2021) (“The
record is replete with instances that confirm that the McDuffs understood that the
Brumleys had alleged a claim of adverse possession.”).

29
 1. Declaratory Judgment

Nicholson’s declaratory-judgment argument consists of a single sentence with a

citation to the substitute trustee’s deed voided by the trial court: “There is a Question

of Fact as to granting [BONY’s] summary judgment on Plaintiff’s Declaratory

Judgment because [BONY] was granted Judgment of Possession as the legal

titleholder post-foreclosure.” As we warned her in Nicholson I, a bare statement, i.e.,

one without a clear and concise legal argument giving appropriate citations to

applicable legal authority, see Tex. R. App. P. 38.1, is wholly insufficient to present an

issue for our review. Nicholson I, 2021 WL 1134455, at *4; see Barcroft,

2017 WL 3910911, at *1 (overruling portion of argument in which pro se appellant

failed to direct the court to any authority and provided no explanation to support his

argument). Accordingly, we overrule this portion of her Issue 8/Point 1.

2. Tort Claims

In her brief, Nicholson failed to challenge every ground upon which summary

judgment could have been granted on to her tort claims, even though we warned her

about the failure to challenge such grounds—including the economic loss rule—in

Nicholson III. See 2019 WL 7407739, at *2–3. Accordingly, we overrule the portion of

her Issue 8/Point 1 that pertains to her fraud, negligence per se, and gross negligence

per se claims.

30
 3. Section 12.002 Claim

Section 12.002(a) provides that a person may not make, present, or use a

document or other record with (1) knowledge that the document or other record is a

fraudulent court record or a fraudulent lien or claim against real or personal property

or an interest in real or personal property; (2) intent that the document or other

record be given the same legal effect as a court record or document of a court created

by or established under the constitution or laws of this state or the United States or

another entity listed in Penal Code Section 37.01 (defining court and governmental

records for perjury purposes), evidencing a valid lien or claim against real or personal

property or an interest in real or personal property; and (3) intent to cause another

person to suffer: (A) physical injury; (B) financial injury; or (C) mental anguish or

emotional distress. Tex. Civ. Prac. & Rem. Code Ann. § 12.002(a). A person who

violates subsection (a) is liable to each injured person for the greater of $10,000 or the

actual damages caused by the violation, court costs, reasonable attorney’s fees, and

exemplary damages in an amount determined by the court. Id. § 12.002(b). For

purposes of Section 12.002, “lien” means a claim in property for the payment of a

debt and includes a security interest. Id. § 12.001(3).

In her sixth amended petition, Nicholson alleged that on February 17, 2015,

Nationstar, as Countrywide’s attorney-in-fact, had executed an assignment of the

original deed of trust from Countrywide to BONY and that doing so amounted to a

fraudulent claim on her property in violation of Section 12.002. The BONY Appellees

31
moved for summary judgment on, among other things, the assignment’s validity and

failure to show an intent to inflict financial injury or mental anguish. They also argued

that Nicholson had no evidence of how the assignment “falsely represented” their

interest in the property, no evidence of any intent to cause her to suffer financial

injury, mental anguish, or emotional distress, and no evidence of any damages

resulting from the recordings in the official public records.

Nicholson responded by arguing that it was presumed fraudulent under

Government Code Section 51.901 because it was not created with her consent or

agreement, and she relied on her theory that the original 2001 deed of trust had been

wiped out by the foreclosure sale.

Government Code Section 51.901 states that a document or instrument is

presumed to be fraudulent if it purports to create a lien or assert a claim against real or

personal property or an interest in real or personal property and, among other things,

it

is not created by implied or express consent or agreement of the obligor,
debtor, or the owner of the real or personal property or an interest in the
real or personal property, if required under the laws of this state, or by
implied or express consent or agreement of an agent, fiduciary, or other
representative of that person.

Tex. Gov’t Code Ann. § 51.901(c)(2)(B). The record in this case and the preceding

cases reflects that Nicholson agreed to the original 2001 deed of trust. Nicholson I,

2021 WL 1134455, at *1; Nicholson II, 2020 WL 241420, at *1 & n.1.

32
 Further, the trial court declared the foreclosure sale void. When a foreclosure

sale is declared void, the debt upon which the foreclosure is based revives and

remains outstanding. 28 Shearer v. Allied Live Oak Bank, 758 S.W.2d 940, 943 (Tex.

App.—Corpus Christi–Edinburg 1988, writ denied) (“Because the foreclosure sale of

the real property was set aside, both parties assumed their original positions as debtor

and creditor.”). That is, a wrongful foreclosure does not extinguish the debt. See Salem

v. Khalaf, No. 01-01-01208-CV, 2003 WL 2002544, at *4 (Tex. App.—Houston [1st

Dist.] May 1, 2003, pet. denied) (mem. op.); 30 Tex. Jur. 3d Deeds of Trust and Mortgages

§ 197 (2022) (explaining that the proper remedy for wrongful foreclosure and breach

of the deed of trust when the borrower retains possession is to set aside the trustee’s

deed and restore the borrower’s title “subject to the note holder’s right to establish

the debt owed and foreclose its lien”). The recovery of damages is not appropriate

when title to the property has not passed to a third party and the borrower’s

28
The trial court tried to explain to Nicholson during the August 18,
2017 summary-judgment hearing that her choice was between leaving the home and
collecting wrongful-foreclosure damages or keeping the home subject to her
mortgage’s terms, “back where you were before the foreclosure.” The trial court also
informed her that if she chose damages, the defendants “would be entitled to a credit
for the five years [she had] lived in the house since the foreclosure.” Compare Sean
Lowe, Their Legality and Immorality: Pro Se, Strategic Foreclosure Defense Lawsuits, 41 Real
Est. L.J. 172, 173 (2012) (explaining that a pro se may strategically engage in litigation
to stay rent-free in a home until the stalled foreclosure process restarts and
concludes), with Megan Wachspress, Jessie Agatstein, Christian Mott, In Defense of “Free
Houses,” Comment, 125 Yale L.J. 1115, 1115–29 (2016) (arguing that risk of faulty
foreclosure should fall on banks rather than homeowners). Having exhausted a
decade in litigation, Nicholson might be more successful taking her arguments to the
Legislature.

33
possession of the property has not been materially disturbed. Wells Fargo Bank, N.A. v.

Robinson, 391 S.W.3d 590, 594 (Tex. App.—Dallas 2012, no pet.); see 30 Tex. Jur. 3d

Deeds of Trust and Mortgages § 197 (2022) (“[I]f the borrower’s possession has not been

disturbed and no third party rights to the property have been created, the borrower

has suffered no compensable injury.”). Because the original deed of trust was not

shown to be invalid, its assignment likewise is not invalid, and the trial court did not

err by granting summary judgment for the BONY Appellees on Nicholson’s Section

12.002 claim. Accordingly, we overrule this portion of her Issue 8/Point 1 without

reaching her remaining arguments.

4. Title Claims

Nicholson relied on the February 27, 2015 assignment to support her quiet-title

and trespass-to-try-title claims in her sixth amended petition. The BONY Appellees

moved for traditional summary judgment on these claims, asserting that Nicholson

could not prevail on either claim “because her interest in the Property remains subject

to Defendants’ lien.” The BONY Appellees pointed out in their summary-judgment

motion that, at best, Nicholson “can show that she resides in a property that is subject

to a lien that secures a loan agreement that she is in default on.” They also argued that

Nicholson had no evidence that her interest in the property was superior to theirs.

A suit to quiet title is an equitable one to remove a “cloud” on a legal title by

alleging a right of ownership warranting judicial interference. Gildon v. ARVM 5,

LLC, No. 02-19-00363-CV, 2020 WL 5666553, at *8–9 (Tex. App.—Fort Worth

34
Sept. 24, 2020, no pet.) (mem. op.) (“Appellant’s quiet-title action fails because she did

not establish the invalidity of the foreclosure or the lien upon which it was based.”). A

claim for trespass to try title is a procedural device by which rival claims to title or

right to possession can be adjudicated. Littleton v. Nationstar Mortg. L.L.C., No. 02-19-

00238-CV, 2020 WL 1949623, at *8 (Tex. App.—Fort Worth Apr. 23, 2020, pet.

denied) (mem. op.). A petition for trespass to try title shall state, among other things,

that the plaintiff was in possession of the premises or was entitled to such possession

and that the defendant dispossessed the plaintiff of possession and withheld it from

him. Tex. R. Civ. P. 783(d)–(e).

As set out above, and argued by the BONY Appellees on appeal, because the

original deed of trust is not invalid, and because Nicholson remains in possession of

the property, cf. id., Nicholson could not prevail on her quiet-title and trespass-to-try-

title claims. Accordingly, the trial court did not err by granting summary judgment for

the BONY Appellees on those claims, and we overrule the remainder of Nicholson’s

Issue 8/Point 1.

D. Stockman’s and Countrywide’s Summary-Judgment Motions

Because Nicholson filed a consolidated response to Stockman’s and

Countrywide’s summary-judgment motions, we address them together.

1. Stockman’s Motion

In his traditional motion for summary judgment, Stockman argued that

Nicholson’s lawsuit against him was barred by “res judicata, collateral estoppel and/or

35
issue preclusion.” He stated that Nicholson’s claims against him had been fully

adjudicated in Cause Number 048-286132-16, which was severed into Cause Number

048-305585-19 on November 28, 2018, and in which Nicholson had challenged the

validity of the substitute trustee’s deed and rescission of the substitute trustee’s deed.

He pointed out that in the instant lawsuit, she had sued for violation of Civil Practice

and Remedies Code Section 12.002, gross negligence per se and negligence per se,

fraud, declaratory judgment, violation of Property Code Section 51.002, to quiet title,

and for trespass to try title, and that in the other lawsuit against him, she had sued for

most of the same causes of action (minus the suit to quiet title or to try title) but had

also added a claim for conspiracy and that summary judgment had been granted for

him on all of her claims. To his motion, Stockman attached a copy of Nicholson’s

sixth amended petition, a copy of her live pleading in the 48th Court lawsuit, and

copies of the summary judgment orders in the 48th Court lawsuit.

2. Countrywide’s Motion

In its traditional and no-evidence motion, Countrywide relied on the same

arguments and evidence set out above upon which the BONY Appellees relied in

their traditional and no-evidence motion for summary judgment.

3. Nicholson’s Responses

Nicholson filed a combined response to Stockman’s and Countrywide’s

motions in which she argued that the trial court lacked jurisdiction while her petition

for review on this court’s judgment dismissing the appeal for want of jurisdiction

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remained pending in the supreme court. The supreme court granted a stay of the trial

court proceedings on July 19, 2019, but it ultimately denied her petition for review

and lifted the stay order on May 29, 2020.

Nicholson subsequently filed a motion to strike Stockman’s summary-judgment

evidence, arguing that his exhibits had not been certified copies. Stockman filed a

reply and supplemented his motion with certified copies. The trial court denied

Nicholson’s motion to strike on the same day that it granted Stockman’s and

Countrywide’s summary-judgment motions, and Nicholson does not challenge the

denial of her motion to strike Stockman’s summary-judgment evidence.

4. Res Judicata

A defendant is entitled to summary judgment on the affirmative defense

of res judicata if he conclusively proves all elements of that defense: (1) a prior final

judgment on the merits by a court of competent jurisdiction; (2) identity of parties or

those in privity with them; and (3) a second action based on the same claims that were

raised or could have been raised in the first action. Eagle Oil & Gas Co. v. TRO-X,

L.P., 619 S.W.3d 699, 705–06 (Tex. 2021); see Tex. R. Civ. P. 166a(b), (c); Chau v.

Riddle, 254 S.W.3d 453, 455 (Tex. 2008) (op. on reh’g). A trial court’s judgment is final

for res judicata purposes even while the case is on appeal. Gonzalez v. Guilbot,

315 S.W.3d 533, 536 n.3 (Tex. 2010).

As she argued in the trial court and in her sur-reply to Stockman’s motion,

Nicholson claims that Stockman failed to prove a prior final judgment on the merits

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by a court of competent jurisdiction. However, the record reflects that Stockman’s

evidence met that element and the remaining elements of his res judicata defense. See

also Nicholson II, 2020 WL 241420, at *3–4. Accordingly, we conclude that the trial

court did not err by granting summary judgment for Stockman, and we overrule Issue

7/Point 2 as to Stockman’s summary judgment.

5. Summary-Judgment Procedure

Although Nicholson argues that there were controverting fact issues that

prevented summary judgment for Countrywide, her only arguments in her amended

brief pertain to her Section 12.002 and fraud claims, which she did not raise in a

summary-judgment response. See Tex. R. Civ. P. 166a(c) (“Issues not expressly

presented to the trial court by written motion, answer or other response shall not be

considered on appeal as grounds for reversal.”); D.R. Horton-Tex., Ltd. v. Markel Int’l

Ins., 300 S.W.3d 740, 743 (Tex. 2009) (“A non-movant must present its objections to a

summary judgment motion expressly by written answer or other written response to

the motion in the trial court or that objection is waived.”). While the nonmovant need

not file an answer or response to the summary-judgment motion, the nonmovant who

does not file a response may contend on appeal only that the movant’s evidence

supporting the motion was insufficient as a matter of law or that the grounds in the

motion do not dispose of all the claims in the case. Rhone-Poulenc, Inc. v. Steel,

997 S.W.2d 217, 223 (Tex. 1999); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d

671, 678 (Tex. 1979). Further, when—as here—the trial court’s judgment rests on

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more than one independent ground or defense, the aggrieved party must assign error

to each ground, or we will affirm the judgment on the uncomplained-of ground. Scott

v. Galusha, 890 S.W.2d 945, 948 (Tex. App.—Fort Worth 1994, writ denied). And

Nicholson did not direct the trial court to evidence to raise a genuine issue of material

fact in response to any of Countrywide’s no-evidence grounds.29 See Tex. R. Civ. P.

166a(i) & 1997 cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008). Accordingly,

the trial court did not err by granting summary judgment for Countrywide on

Nicholson’s Section 12.002 claim or any of her other claims against it, and we

overrule this portion of Issue 8/Point 1.

VI. Conclusion

Having overruled all of Nicholson’s issues that were fairly included in the

points she raised in her opening brief, we affirm the trial court’s judgment.

/s/ Mike Wallach
Mike Wallach
Justice

Delivered: March 31, 2022

29
If a nonmovant wishes to assert that, based on the record evidence, a fact
issue exists to defeat a no-evidence motion for summary judgment, the nonmovant
must timely file a response to the motion raising this issue. Imkie v. Methodist Hosp.,
326 S.W.3d 339, 343 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (op. on reh’g).
Absent a timely response, a trial court must grant a no-evidence motion for summary
judgment that meets the requirements of Rule 166a(i). Id.

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