Gloria G. Flores v. Bank of America, N.A.

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

GLORIA G. FLORES, § No. 08-20-00184-CV

Appellant, § Appeal from the

v. § 327th Judicial District Court

BANK OF AMERICA, N.A., § of El Paso County, Texas

Appellee. § (TC# 2020DCV0998)

OPINION

Appellant Gloria G. Flores (Flores) sued Appellee Bank of America, N.A. (the Bank) for

declaratory relief and damages, making several claims and allegations in relation to a disputed

home equity loan. The Bank filed a motion to dismiss Flores’s live petition under Texas Rule of

Civil Procedure 91a (Rule 91a), which the trial court granted. For the reasons set forth below, we

reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Flores and her then-husband Gerardo Flores took out a home equity loan with Ameriquest

Mortgage Company in 2000. Ameriquest refinanced the loan in 2002, and Decision One Mortgage

Company, LLC refinanced the loan in 2006. From there, the parties’ views of the facts diverge.
 A. Flores’s pleading

Flores’s pleading alleged that “[t]he actual instruments [for the 2006 loan] were placed in

the name of Mortgage Electronic Registration Systems, Inc. [MERS],” which the pleading

described as “an enterprise designed to conceal the actual owners and holders of real estate

financing instruments to enable the perpetration of deceptive trade practices and fraud.” The Bank,

according to the pleading, is a member or participant in MERS and one of its founders.

Flores’s pleading further alleged that the Bank:

(a) “contin[ues] to act as the mortgage servicing agent for U.S. Bank, N.A.,” which “has
initiated foreclosure proceedings” despite “actual knowledge that [it is] barred from a
forced sale of the Homestead,” as “[n]one of the Lenders . . . provided [Flores] with
the required notice prescribed by Section 50(a)(8)(g) of Article XVI of the Texas
Constitution and did not satisfy all the conditions of Section 50”;

(b) sent Flores “false statements as to [the] amount which needed to be paid to keep the
loan current” and “is still attempting to collect on the note and foreclose the security
agreement”;

(c) “conspired [with Flores’s then-husband] to cause and engage in a wrongful foreclosure
of the lien . . . by manipulating the payment of real property taxes and status of
homeowner’s insurance and forcing the creation of an escrow for taxes and insurance,”
after which the Bank “started demanding monthly payments more than double the
prior payments”;

(d) “reported falsely to credit bureaus that [Flores] has personal liability on this debt,”
thereby damaging her credit standing and defaming her; and

(e) “denied [Flores] a[] [mortgage] adjustment because of [her] gender . . . and because
she was not joined in the application by her husband who[m] she was divorcing.”

Flores’s pleading sought a declaratory judgment that “the lien asserted by [the Bank] is not

enforceable against [Flores’s] homestead” and that “[Flores] has no personal liability for the debt.”

The pleading further sought “damages in the amount of the interest being collected on the alleged

debt”; “additional damages resulting from the defamations made by [the Bank]”; and “attorney’s

fees, . . . legal fees, and court costs.”

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 B. The Bank’s Rule 91a Motion to Dismiss

The Bank did not file an answer. Instead, it filed a motion to dismiss under Rule 91a,

attaching to its motion the following twelve exhibits:

Exhibit A—2000 security instrument;

Exhibit B—2002 security instrument;

Exhibit C—2006 security instrument;

Exhibit D—2006 promissory note;

Exhibit E—2006 assignment;

Exhibit F—release of lien for 2000 security instrument;

Exhibit G—release of lien for 2002 security instrument;

Exhibit H—recommended dismissal signed by Judge W. Reed Leverton on February 28,
2017;

Exhibit I—order adopting recommended dismissal signed by Judge Laura Strathmann on
August 17, 2017;

Exhibit J—docket sheet for Case No. 2018DCV1779, a foreclosure action;

Exhibit K—agreed order of August 28, 2019, setting aside order of August 17, 2017; and

Exhibit L—Texas Home Equity Affidavit and Agreement (Flores’s affidavit).

In its motion, the Bank asked the trial court to take judicial notice of these exhibits, except

Exhibit D (2006 promissory note), which the Bank asserted “[t]he Court may consider . . . because

[the note] is referenced in [Flores’s pleading] and is central to [her] claims,” and Exhibits H, I, and

L (recommended dismissal, order of dismissal, and Flores’s affidavit), which the Bank attached

without stating why it thought the trial court could consider them.

Further, the Bank argued that Flores’s constitutional claim was “nonsensical” because it

referred to Section 50(a)(8)(g) of Article XVI of the Texas Constitution, which does not exist;

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“insufficient” because Flores “d[id] not allege which particular provision of ‘Section 50’ was

allegedly violated or how”; and negated by Flores’s affidavit, which allegedly affirmed “that the

2006 Loan fully complied with the Texas Constitution.”

In addition, the Bank argued that Flores’s request for declaratory relief should be denied

because she “executed both the 2006 Note and the 2006 Security Instrument, and therefore, her

allegation that she has no personal liability on the 2006 Loan is unsupported,” and because “the

real property records accurately reflect that U.S. Bank is the mortgagee of record with regard to

the 2006 Security Instrument, and [Flores] has not alleged a single fact that would warrant

declaring the 2006 Security Instrument unenforceable.”

C. Flores’s objection and response

Flores filed an objection and response to the Bank’s motion to dismiss, arguing that the

Bank failed to “follow the constraints of Rule 91a.6,” under which “the court may not consider

evidence,” further noting that “this is not a summary judgment proceeding,” and asserting that the

allegations in her pleading were sufficient to support her claims.

D. The Bank’s reply

The Bank filed a reply, arguing that it “[did] not present[] any ‘evidence’ in support of its

[motion], but rather the exhibits to [its motion] are matters of public record that the Court can take

judicial notice of.”

Further, in regard to Flores’s conspiracy claim, the Bank argued that Flores failed to allege

“the years and amounts that insurance was wrongfully impounded on the loan”; “[the Bank] and

Gerardo Flores reached a ‘meeting of the minds’”; “[the Bank] acted with ‘specific intent’ to

commit an unlawful act”; “[Flores] suffered any damages”; “[Flores] ever informed [the Bank]

that she had an insurance policy in place”; or “any facts surrounding the alleged policy, i.e. when

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[Flores] obtained the alleged policy, what the dates of coverage [were], who the insurance carrier

was, and/or how she notified [the Bank] of any purported policy.” The Bank asserted that

“[Flores’s] conclusory allegations are wholly insufficient.”

In addition, in regard to Flores’s constitutional argument, the Bank argued that “section

50(a) does not create substantive rights beyond a defense to a foreclosure action on a home-equity

lien securing a constitutionally noncompliant loan and that forfeiture is not a constitutional

remedy,” citing Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542, 546 (Tex. 2016), and “[t]he

constitution guarantees freedom from forced sale of a homestead to satisfy the debt on a home-

equity loan that does not include the required terms and provisions—nothing more,” citing

Garofolo v. Ocwen Loan Servicing, L.L.C., 497 S.W.3d 474, 484 (Tex. 2016). Thus, the Bank

asserted, “[Flores’s] allegations are fundamentally deficient.”

Finally, the Bank argued that “[Flores’s] unsupported allegation that [the Bank] falsely

reported that [Flores] is personally liable on the Loan cannot overcome the Motion to Dismiss or

[provide] any basis for th[e trial c]ourt to declare the 2006 Security Instrument unenforceable.”

After hearing argument, the trial court granted the Bank’s Rule 91a motion to dismiss with

prejudice. This appeal followed. In one global issue, Flores contends the trial court erred in

dismissing all of her claims against Bank of America because none of the causes of action pleaded

were frivolous or failed to state a cause of action.

STANDARD OF REVIEW AND APPLICABLE LAW

Rule 91a allows a party to “move to dismiss a cause of action on the grounds that it has no

basis in law or fact.” TEX. R. CIV. P. 91a.1. A cause of action has no basis in law “if the allegations,

taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to

the relief sought.” Id. A cause of action has no basis in fact “if no reasonable person could believe

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the facts pleaded.” Id.

The merits of a Rule 91a motion are reviewed de novo. In re Farmers Texas Cnty. Mut.

Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding); Aguilar v. Morales, 545 S.W.3d

670, 676–77 (Tex. App.—El Paso 2017, pet. denied) (“[B]oth determinations of whether a cause

of action has any basis in law and in fact are legal questions.”).

In conducting this review, we apply the Texas fair-notice pleading standard, under which

a pleading is sufficient “if it gives fair and adequate notice of the facts upon which the pleader

bases his claim.” Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982); Aguilar, 545 S.W.3d at 677.

In other words, we must “assess the sufficiency of pleadings by determining whether an opposing

party can ascertain from the pleading the nature, basic issues, and the type of evidence that might

be relevant to the controversy.” Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007); see also In re

Jordan Foster Constr., LLC, No. 08-22-00201-CV, 2023 WL 2366610, at *3 (Tex. App.—El Paso

Mar. 6, 2023, no pet.) (orig. proceeding) (mem. op.) (“If a petition provides sufficient facts to give

fair notice of the claim, then a motion seeking dismissal based on lack of a basis in fact should be

denied.” (quoting Darnell v. Rogers, 588 S.W.3d 295, 301 (Tex. App.—El Paso 2019, no pet.))).

Further, “if nothing in the pleading itself triggers a clear legal bar to the claim, then there is a basis

in law and the motion should be denied.” In re Jordan Foster Constr., LLC, 2023 WL 23666, at

*3 (quoting Darnell, 588 S.W.3d at 301).

When ruling on a Rule 91a motion, a court “may not consider evidence but ‘must decide

the motion based solely on the pleading of the cause of action, together with any [permitted]

pleading exhibits.’” In re Farmers, 621 S.W.3d at 266 (quoting TEX. R. CIV. P. 91a.6).

In addition, we construe the pleadings liberally in the plaintiff’s favor, look to the pleader’s

intent, and accept as true the pleading’s factual allegations. In re Facebook, Inc., 625 S.W.3d 80,

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83 (Tex. 2021), cert. denied sub nom. Doe v. Facebook, Inc., 142 S.Ct. 1087 (2022) (orig.

proceeding); In re Jordan Foster Constr., LLC, 2023 WL 2366610, at *3. Because Rule 91a

provides a harsh remedy, its requirements must be strictly construed. Darnell, 588 S.W.3d at 304.

DISCUSSION

A. Preliminary matters

Prior to turning to Flores’s purported claims, we address two preliminary matters. First,

Flores asserts that our review may be impacted by the Bank’s alleged misnomer regarding her live

petition. Second, the parties disagree over what documents may be considered within the context

of the Rule 91a motion to dismiss.

(1) Misnomer

First, Flores asserts that the Bank’s motion to dismiss refers to Flores’s “Fourth Amended

Third-Party Petition” filed on March 17, 2020, when in fact the pleading Flores filed on that date

was entitled “Petitioner’s Original Petition in Severed Action for Declaratory Judgment, for

Rescission, and for Damages.” Flores argues that “[p]erhaps this is a simple clerical mistake[;]

however, it may be an issue because, in addition to referring [to] [Flores’s] pleading that way on

page 1 and page 4 of the Motion to Dismiss, [the Bank] carried it over into its proposed order

which is the order actually signed by the [trial c]ourt[,] [which] dismissed [Flores’s] ‘Fourth

Amended Third-Party Petition.’”

However, the parties agree that Flores’s live pleading is the pleading filed on March 17,

2020, and neither asserts that appellate review of the case will be affected by the alleged misnomer,

and in fact Flores asserts that “[t]he [trial c]ourt did dismiss all claims of [Flores] against [the

Bank].” We conclude that the alleged misnomer does not prevent or affect our review of the trial

court’s dismissal of Flores’s live pleading under Rule 91a.

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 (2) Scope of documents reviewable under Rule 91a

As a second preliminary matter, we must determine whether the exhibits attached to the

Bank’s motion can be considered under Rule 91a, which as noted above, provides that “the [trial]

court may not consider evidence . . . and must decide the motion based solely on the pleading of

the cause of action, together with any pleading exhibits permitted by Rule 59.” TEX. R. CIV. P.

91a.6.

In the trial court, the Bank argued that the court should take judicial notice of certain

exhibits because they are official public records. On appeal, the Bank maintains this argument and

newly argues that certain exhibits were properly before the trial court under Texas Rule of Civil

Procedure 59 (Rule 59) because they were referred to in Flores’s pleading or were the subject of

or central to her claims. We consider each argument in turn.

(a) Judicial notice

In support of its argument that taking judicial notice of official public records is proper

under Rule 91a, the Bank cites Lovelady v. State, 65 S.W.3d 810, 814 (Tex. App.—Beaumont

2002, no pet.) and County of El Paso v. Navar, 584 S.W.3d 73, 77–78 (Tex. App.—El Paso 2018,

no pet.). While these cases address judicial notice issues, neither does so in the context of or with

relevance to Rule 91a. Instead, both address judicial notice in cases contemplating evidence in

their analyses—Lovelady was a criminal case, and Navar involved a summary judgment motion

and subject-matter jurisdiction challenge raised on appeal. Further, while the Bank cites Texas

Rule of Evidence 201(d) for the proposition that judicial notice may be taken at “any stage” of a

case, Rule 201 does not address whether taking judicial notice involves considering evidence,

which is prohibited under Rule 91a.

Several of our sister courts have addressed this question, all holding that judicial notice

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cannot be taken under Rule 91a because it would involve improper consideration of evidence.

Harlow v. Harlow, Tr. of Haley Harlow, Jr. Tr., No. 05-22-00585-CV, 2023 WL 3220919, at *4

(Tex. App.—Dallas May 3, 2023, no pet.) (“To consider whether the same facts were previously

litigated . . . would require us to improperly take judicial notice of the proceedings. Rule 91a.6

expressly prohibits the consideration of evidence and requires that the motion be decided based

solely on the plaintiff’s pleading.”); Reynolds v. Quantlab Trading Partners US, LP, 608 S.W.3d

549, 557 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (“A party may not rely on judicial notice

in a Rule 91a proceeding because judicial notice is ‘a matter of evidence.’” (citing Harper v.

Killion, 162 Tex. 481, 484, 348 S.W.2d 521, 523 (1961))); Farr v. Barnes, No. 04-19-00895-CV,

2020 WL 6048770, at *1–2 (Tex. App.—San Antonio Oct. 14, 2020, no pet.) (stating “[i]n keeping

with the required standard for reviewing a Rule 91a dismissal, we decline to consider any evidence

or assertions of fact not found within [the plaintiff’s] pleading or pleading exhibits” in response to

defendants asking the court to take judicial notice of the court file in a different proceeding and to

consider a brief and a hearing transcript from yet another proceeding); San Jacinto River Auth. v.

Burney, 570 S.W.3d 820, 831 (Tex. App.—Houston [1st Dist.] 2018), aff’d sub nom. San Jacinto

River Auth. v. Medina, 627 S.W.3d 618 (Tex. 2021) (“Because Rule 91a expressly prohibits a

court’s consideration of evidence, and it expressly requires that the motion to dismiss be decided

based solely on the pleadings, we decline to take judicial notice of [the defendant’s] proffered

evidence.”). 1

1
We note three distinguishable cases in which judicial notice was taken in a Rule 91a proceeding as a result of waiver
by a non-prevailing plaintiff—Payne v. Payne, No. 06-20-00051-CV, 2021 WL 1216885 (Tex. App.—Texarkana
Apr. 1, 2021, no pet.), where the plaintiff did not object to the defendant’s attachment of their divorce decree to her
Rule 91a motion and instead himself asked the trial court to take judicial notice of the decree, 2021 WL 1216885, at
*3 n.7, *4; 1st & Trinity Super Majority, LLC v. Milligan, 657 S.W.3d 349 (Tex. App.—El Paso 2022, no pet.), where
the plaintiff conceded that a transferee as well as transferor appellate court could take judicial notice of related
proceedings, 657 S.W.3d at 357 n.2; and Conroy v. Harris, No. 07-18-00381-CV, 2019 WL 1908130, at *1
(Tex. App.—Amarillo Apr. 29, 2019, pet. denied), where the defendant “invoked a federal rule . . . to justify its

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 In contrast, we are aware of no cases holding that the taking of judicial notice can be

reconciled with Rule 91a’s prohibition against considering evidence. We adopt the reasoning of

our sister courts in concluding that taking judicial notice is improper under Rule 91a.

(b) Rule 59

In support of its argument that certain of its exhibits may be considered under Rule 59

because they were referenced in Flores’s pleading or are the subject of or central to her claims, the

Bank cites no authority beyond Rule 59 itself. Rule 59 provides that certain documents “may be

made a part of the pleadings by copies thereof, or the originals, being attached or filed and referred

to as such”:

Notes, accounts, bonds, mortgages, records, and all other written instruments,
constituting, in whole or in part, the claim sued on, or the matter set up in defense,
may be made a part of the pleadings by copies thereof, or the originals, being
attached or filed and referred to as such, or by copying the same in the body of the
pleading in aid and explanation of the allegations in the petition or answer made in
reference to said instruments and shall be deemed a part thereof for all purposes.
Such pleadings shall not be deemed defective because of the lack of any allegations
which can be supplied from said exhibit. No other instrument of writing shall be
made an exhibit in the pleading.

TEX. R. CIV. P. 59. Under Rule 59, it would appear clear that had Flores herself attached or filed

the documents at issue falling within Rule 59’s scope, those documents would have become part

of her pleading. However, it is unclear from the text of Rule 59 whether a defendant may, in effect,

supplement a plaintiff’s pleading by filing such documents.

In Life v. Gino Morena Enterprises, LLC, No. 08-23-00055-CV, 2023 WL 4557747

(Tex. App.—El Paso July 17, 2023, no pet.), the defendant sought relief under Rule 91a based on

decision to proffer [federal documents, which it asked the trial court to take judicial notice of] as part of [its] Rule 91a
motion,” and the appellate court concluded that “[t]he legitimacy of that tactic is not something we need consider
since [the plaintiff] did not complain about it on appeal,” 2019 WL 1908130, at *1 n.1. Here, the Bank does not argue
that Flores waived this issue. Further, Flores contends it was improper for the Bank to attach exhibits to its motion in
the first place, an issue Flores both raised in the trial court and continues to press on appeal.

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exhibits attached to its answer. 2023 WL 4557747, at *5. We declined to consider those exhibits,

reasoning that a trial court “may not consider evidence in ruling on [a Rule 91a] motion and must

decide the motion based solely on the pleading of the cause of action, together with any pleading

exhibits permitted by Rule 59.” Id. (quoting TEX. R. CIV. P. 91a.6). We specifically held that “a

Rule 91a dismissal must be based on the plaintiff’s petition[,] not the defendant’s answer or

exhibits.” Id. (citing Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d

651, 656 (Tex. 2020)).

In Southwest Airlines Pilots Ass’n v. Boeing Co., No. 05-21-00598-CV, 2022 WL

16735379 (Tex. App.—Dallas Nov. 7, 2022, pet. filed), the defendant attached to its answer copies

of the plaintiff’s petition in an earlier lawsuit and the trial court’s order granting the defendant’s

plea to the jurisdiction. 2022 WL 16735379, at *2. The Dallas Court of Appeals observed that

“exhibits attached to another party’s pleading may tend to show the plaintiff’s pleading is baseless,

but Rule 91a does not permit their consideration,” and “[Rule 91a] requires the determination of

baselessness be made from the allegations in the cause of action and the facts pleaded in the cause

of action, not from documents extraneous to the petition and presented by other parties.” Id. at *5.

Further observing that “[g]ranting a motion to dismiss based on the exhibits to another party’s

pleading would require the court to treat those exhibits as evidence and to accept those documents

as true, both of which are contrary to the standard of review [for Rule 91a],” the court declined to

consider the exhibits at issue. Id. at *6, *8. In reaching this result, the court relied on the Texas

Supreme Court’s decision in Bethel, which held that defendants’ pleadings may inform a legal

basis to dismiss but not a factual basis to dismiss when an affirmative defense is raised as a ground

for dismissal under Rule 91. Sw. Airlines, 2022 WL 16735379, at *4; see Bethel, 595 S.W.3d at

656 (“Rule 91a limits a court’s factual inquiry to the plaintiff’s pleadings but does not so limit the

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court’s legal inquiry. In deciding a Rule 91a motion, a court may consider the defendant’s

pleadings if doing so is necessary to [determine] whether an affirmative defense is properly before

the court.”). The Dallas Court of Appeals explained:

Applying Bethel, we look to the motion to dismiss to find the grounds for
dismissing the action under Rule 91a. If one of those grounds is an affirmative
defense, we look to the answer to determine whether the affirmative defense has
been pleaded and was properly before the court. If it was pleaded, then we look to
the petition and any exhibits properly attached to the petition to determine whether
the allegations in the petition establish the defense and demonstrate that the action
has no basis in law.

Sw. Airlines, 2022 WL 16735379, at *4 (internal citations omitted).

In Raider Ranch, LP v. Lugano, Ltd., 579 S.W.3d 131 (Tex. App.—Amarillo 2019, no

pet.), the defendant argued that, for purposes of Rule 91a, “optional completeness” required

consideration of an amended version of a limited partnership agreement. 579 S.W.3d at 133. The

plaintiff had attached the original agreement to its pleading. Id. The defendant attached the

amended version to its own pleading and Rule 91a motion, then argued that the “completed”

plaintiff’s pleading defeated the plaintiff’s claims. Id. The Amarillo Court of Appeals rejected the

defendant’s “optional completeness” theory, holding that the trial court was required to consider

only the plaintiff’s pleading in ruling on a Rule 91a motion. Id. at 134; see also Renate Nixdorf

GmbH & Co. KG v. TRA Midland Properties, LLC, No. 05-17-00577-CV, 2019 WL 92038, at *4

(Tex. App.—Dallas Jan. 3, 2019, pet. denied) (“In deciding a rule 91a motion, the trial court may

consider only the live pleading [of the cause of action] and any attachments thereto”); Wooley v.

Schaffer, 447 S.W.3d 71, 76 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (“We conclude

that both determinations of whether a cause of action has any basis in law and in fact [under Rule

91a] are legal questions that we review de novo, based on the allegations of the live petition and

12
any attachments thereto”). 2

In contrast, we have found no cases holding that for purposes of Rule 91a, a defendant

may, in effect, supplement or “complete” a plaintiff’s pleading by filing documents under Rule 59.

And we conclude that the Bank cannot do so here.

B. Claims and allegations raised in Flores’s petition

We next consider whether Flores’s purported claims are dismissible under Rule 91a

without considering the exhibits attached to the Bank’s motion.

(1) Flores’s constitutional claim

Flores’s pleading alleged that the Bank is “the mortgage servicing agent for U.S. Bank,

N.A.,” which “has initiated foreclosure proceedings” despite “actual knowledge that [it is] barred

from a forced sale of the Homestead,” as “[n]one of the Lenders . . . provided [Flores] with the

required notice prescribed by Section 50(a)(8)(g) of Article XVI of the Texas Constitution and did

not satisfy all the conditions of Section 50.”

First, the Bank argues that dismissal of this claim was proper under Rule 91a because

2
Lewis v. Pittman, 191 S.W.2d 691 (Tex. App.—Eastland 1945, no writ), which involved review of a special
exception, seems to confirm both that a defendant normally cannot supplement a plaintiff’s petition by filing
documents under Rule 59 and that this constraint, like the constraint on judicial notice discussed in the previous
footnote, is waivable:
Ordinarily, the consideration of an exception is limited to a study of the petition. But where an
instrument of document is attached to the petition as an exhibit and made a part thereof, it may be
considered by the court in connection with the pleadings in testing the sufficiency of an exception.
In this case said lease was presented to the court by defendant’s attorney. However, no objection to
this procedure, nor to recitals in the judgment as to such consideration, seems to have been made by
plaintiff, and the point was not saved for appeal. As further indicating that plaintiff acquiesced in
the procedure, attorneys for both plaintiffs and defendant, by their written agreement, directed that
said lease contract be brought forward in the transcript. We conclude that plaintiff assented that said
lease contract be considered by the trial court in testing the said exception, as if same had been
attached as an exhibit to the petition. See Rules 59 and 90, Texas Rules of Civil Procedure.
191 S.W.2d at 693. Here again, the Bank does not argue that Flores waived this issue. And as noted above, Flores
contends it was improper for the Bank to attach exhibits to its motion, an issue Flores both raised in the trial court and
continues to press on appeal.

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Section 50(a)(8)(g) does not exist, thereby rendering Flores’s allegation “nonsensical.” The Bank

further notes that Flores failed to correct this pleading defect even after the Bank pointed it out.

However, the Bank cites no authority holding that dismissal under Rule 91a is proper if the

plaintiff’s pleading contains an incorrect legal citation. Flores, in turn, apologizes for her

“typ[o]graphical error,” explaining that it resulted from “inserting an (a)(8) before the (g) in

Section 50(g),” but she likewise cites no authority regarding the consequences of such an error.

In Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000), the defendant

sought to assert a statutory defense in its pleading but cited the wrong statute. The Supreme Court

analyzed the issue as follows:

Texas follows a “fair notice” standard for pleading, which looks to whether the
opposing party can ascertain from the pleading the nature and basic issues of the
controversy and what testimony will be relevant. [The defendant’s] first amended
answer pleaded sufficient facts to give adequate and fair notice to [the plaintiff] and
the trial court of [its] intent to invoke the punitive-damages cap found in the Texas
Civil Practice and Remedies Code, even though the pleading referred to an incorrect
version of the statute. A petition is sufficient if it gives fair and adequate notice of
the facts upon which the pleader bases his claim. The purpose of this rule is to give
the opposing party information sufficient to enable him to prepare a defense. [The
defendant] satisfied this standard. Being that there was, and is, only one punitive-
damages cap provision in Chapter 41, it is hard to imagine that [the plaintiff] was
unaware of exactly what [the defendant] was claiming.

Auld, 34 S.W.3d at 896–97 (citations and quotation marks omitted); see also Troutman v. Traeco

Bldg. Sys., Inc., 724 S.W.2d 385, 387 (Tex. 1987) (holding plaintiff need not plead specific

Deceptive Trade Practices Act section allegedly violated); Weitzel v. Barnes, 691 S.W.2d 598, 600

(Tex. 1985) (same); The Huff Energy Fund, L.P. v. Longview Energy Co., 482 S.W.3d 184, 195

(Tex. App.—San Antonio 2015), aff’d sub nom. Longview Energy Co. v. Huff Energy Fund LP,

533 S.W.3d 866 (Tex. 2017) (“In determining whether a pleading is adequate, we examine whether

an opposing attorney of reasonable competence, on review of the pleadings, can ascertain the

14
nature and the basic issues of the controversy”); id. at 219 (Chapa, J., dissenting) (“Texas has long

rejected pleading rules, such as a requirement that legal theories of recovery be clearly and

accurately identified, that prioritize form over substance.”).

Here, the Bank argues neither that Flores’s misciting of Section 50(g) as Section

50(a)(8)(g) prevented the Bank from ascertaining the nature and basic issues of the controversy

involved and what testimony would be relevant nor that this error prevented it from preparing a

defense. And given the relatively small number of “required notice[s] prescribed by” Section

50(g), it is hard to imagine the Bank was unaware of what Flores was claiming when she pled that

“[n]one of the Lenders . . . provided [Flores] with the required notice prescribed.” We conclude

that Flores’s pleading, even with the error, provided fair notice of her constitutional claim.

The Bank further contends that at the trial court hearing, Flores could have sought leave to

correct her pleading but failed to do so; thus, for Flores to now characterize her reference to

“Section 50(a)(8)(g)” as a typographical error is insufficient to demonstrate reversible error. But

because we conclude that Flores’s pleading, even with the error, provided fair notice of her

constitutional claim, we also conclude that her failure to correct the error did not provide a proper

basis for dismissal under Rule 91a.

The Bank additionally contends that Flores cannot now recharacterize her reference to

“Section 50(a)(8)(g)” as an error because arguments on appeal must comport with the arguments

made below, citing Watts v. Watts, 396 S.W.3d 19, 23 (Tex. App.—San Antonio 2012, no pet.)

and Tate v. Andrews, 372 S.W.3d 751, 754 (Tex. App.—Dallas 2012, no pet.). However, given

our fair-notice analysis, these cases are inapposite.

Second, the Bank argues that dismissal of Flores’s constitutional claim was proper under

Rule 91a because Flores did not allege which particular provision of “Section 50” was violated or

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how. The Bank notes that Section 50 includes twenty-two parts, each of which includes subparts,

totaling over 150 provisions. However, because Flores alleged that Section 50 was violated at least

in part because “[n]one of the Lenders . . . provided [Flores] with the required notice prescribed,”

we conclude it would have been improper to dismiss her constitutional claim for failure to allege

which particular provision of Section 50 was allegedly violated or how.

Third, the Bank argues that dismissal of Flores’s constitutional claim was proper under

Rule 91a because Flores signed a Texas Home Equity Affidavit and Agreement affirming “that

the 2006 Loan fully complied with the Texas Constitution,” thereby contradicting her allegation

that the loan did not satisfy “all the conditions of Section 50.” As noted above, however, we cannot

consider such documents because they are evidence. But even if we could, the affidavit would not

make dismissal under Rule 91a proper. While the affidavit does refer to various provisions of

Section 50, it nowhere affirms that the 2006 Loan “fully complied with the Texas Constitution.”

Further, if what the Bank intended to argue is that the affidavit includes a series of representations

and warranties by the borrowers that the lender complied with each and every requirement imposed

by the Texas Constitution, the Bank makes no more than a conclusory contention in this regard,

which is insufficient. See Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no

pet.) (explaining that appellate briefs must contain a clear and concise argument, a requirement

that is not satisfied by “merely uttering brief conclusory statements”).

Fourth, the Bank argues that dismissal of Flores’s constitutional claim was proper under

Rule 91a because Flores’s Section 50(a)(1) argument—i.e., that her homestead is not subject to

any lien subsequent to a purchase money loan lien, and the loan at issue is not a purchase money

loan—fails to account for Section 50(a)(6), which permits a homestead to be subject to a home

equity loan lien, which is the type of lien involved here. Even assuming the Bank’s argument is

16
correct, however, dismissal under Rule 91a would not be proper since Flores’s constitutional claim

is based at least in part on the allegation that “[n]one of the Lenders . . . provided [Flores] with the

required notice prescribed.”

Fifth, the Bank argues that dismissal of Flores’s constitutional claim was proper under Rule

91a because the trial court was allowed to consider all of its exhibits, an argument we reject for

the reasons stated above.

As a result, we conclude that Flores’s constitutional claim was improperly dismissed under

Rule 91a.

(2) Flores’s defamation claim

Flores’s pleading alleged that the Bank “reported falsely to credit bureaus that [Flores] has

personal liability on this debt,” thereby damaging her credit standing and defaming her.

The Bank argues that its reporting of the 2006 Loan as delinquent was proper, did not

constitute defamation, and did not warrant a declaratory judgment that Flores is not “personally

liable” on the debt, citing Melton v. CU Members Mortgage, 586 S.W.3d 26, 33–34 (Tex. App.—

Austin 2019, pet. denied) for the proposition that reporting delinquent payments to a credit agency

is not equivalent to averring that a person is exposed to personal liability.

However, Flores’s pleading alleged, not that the Bank merely reported her as delinquent,

but rather that the Bank reported “that [she] has personal liability on this debt.” Because there

appears to be a fact dispute regarding the substance of what the Bank reported to credit bureaus,

Rule 91a was not a proper vehicle to resolve this issue.

The Bank further argues that Flores’s pleading was insufficient because Flores did not

allege that the 2006 Loan was current; thus, any information provided by the Bank to credit bureaus

regarding the default status of this loan did not constitute publication of a false or defamatory

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statement and could not support a plausible defamation claim. However, again, Flores’s pleading

alleged that the Bank reported to credit bureaus, not merely that the loan was in default, but that

Flores was personally liable. The Bank does not argue that this allegation, if true, could not give

rise to a defamation claim.

Finally, the Bank argues that Flores did not allege that she disputed the credit reporting on

the 2006 Loan in accordance with the Fair Credit Reporting Act. However, the Bank does not

explain the consequences, if any, that might result if Flores in fact failed to do so.

As a result, we conclude that Flores’s defamation claim was improperly dismissed under

Rule 91a.

(3) Other allegations/purported claims

(a) False statements and conspiracy

Flores’s pleading alleged that the Bank sent her “false statements as to [the] amount which

needed to be paid to keep the loan current” and “is still attempting to collect on the note and

foreclose the security agreement.” The Bank neither addressed the false-statements

allegation/purported claim in the trial court nor addresses it on appeal, thereby waiving any

argument that its dismissal was proper under Rule 91a. See In re A.N.G., 631 S.W.3d 471, 476–77

(Tex. App.—El Paso 2021, no pet.) (explaining that issues “may be waived when [a party] fails to

provide citations, argument, or analysis”).

Flores’s pleading further alleged that the Bank “conspired [with Flores’s then-husband] to

cause and engage in a wrongful foreclosure of the lien . . . by manipulating the payment of real

property taxes and status of homeowner’s insurance and forcing the creation of an escrow for taxes

and insurance,” after which the Bank “started demanding monthly payments more than double the

prior payments.” While the Bank did address this conspiracy allegation/purported claim in the trial

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court, it does not address it on appeal, thereby waiving any argument that its dismissal was proper

under Rule 91a. See id. (finding appellant waived his argument on appeal by failing to make a

clear and concise argument and provide proper citations and authorities to the appellate court).

(b) Gender discrimination

Flores’s pleading alleged that the Bank “denied [her] a[] [mortgage] adjustment because of

[her] gender . . . and because she was not joined in the application by her husband who[m] she was

divorcing.”

First, the Bank argues that the words “discrimination,” “discriminate,” “discriminatory

lending,” and “gender discrimination” do not appear in Flores’s pleading; thus, it is “disingenuous”

for her to argue on appeal that she pled a claim for “discriminatory lending.” However, the Bank

neither cites authority that any magic words are required nor explains why it believes Flores’s

argument is disingenuous.

Second, the Bank argues that its alleged denial of a mortgage adjustment simply

acknowledged that Flores and her then-husband were coborrowers and demonstrated only that the

Bank told Flores that if her husband deeded his interest in the property to her, she could apply for

a loan adjustment or a new loan by herself. In other words, according to the Bank, because the

property was possessed by Flores and her spouse during their marriage and was presumed to be

community property pursuant to Texas Family Code § 3.003(a), it was appropriate for the Bank to

instruct Flores that either her coborrower and spouse could deed his interest to her, or both would

have to join in any application to modify the loan contract they had jointly signed—this was a

simple consequence of Texas contract law, property law, and the Texas Family Code, not gender

discrimination or “discriminatory lending.” However, Flores’s pleading alleged that she was

denied an adjustment for two reasons: because of her gender and because she was not joined in

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the application by her husband. Thus, because the Bank’s argument addresses only the second

reason, dismissal under Rule 91a was not proper.

Third, in regard to Flores’s claim that the property at issue was her separate property,

having been a gift from her mother, the Bank argues that judicial notice may be taken of the fact

that the public record contradicts this claim, as the special warranty deed named Flores and her

then-husband as grantees. But as explained above, we cannot take judicial notice of such

documents under Rule 91a.

Finally, as Flores points out, the Bank’s motion to dismiss did not address Flores’s gender-

discrimination allegation. As a result, we conclude that dismissal under Rule 91a was improper.

(4) Flores’s request for declaratory judgment

The Uniform Declaratory Judgment Act (UDJA) is a sui generis procedural vehicle

designed “to settle and to afford relief from uncertainty and insecurity with respect to rights, status,

and other legal relations”; it is remedial in nature and cannot independently establish jurisdiction

or enlarge jurisdiction. Texas Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855

(Tex. 2002) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 37.002(b)); see also Allstate Ins. Co. v.

Irwin, 627 S.W.3d 263, 269 (Tex. 2021), reh’g denied (Sept. 3, 2021) (recognizing that the UDJA

action is neither legal nor equitable, but sui generis); TEX. CIV. PRAC. & REM. CODE ANN.

§ 37.004(a). Given the unique nature of the UDJA, a declaratory judgment is appropriate only if

(1) a justiciable controversy exists as to the rights and status of the parties, and (2) the controversy

will be resolved by the declaration sought. See Allstate, 627 S.W.3d at 269 (“A declaratory

judgment is . . . appropriate when a real controversy exists between the parties, and the entire

controversy may be determined by judicial declaration.”).

Flores’s pleading sought a declaratory judgment that “the lien asserted by [the Bank] is not

20
enforceable against [Flores’s] homestead” and that “[Flores] has no personal liability for the debt.”

First, the Bank argues that it is undisputed that Flores executed both the 2006 Note and the

2006 Security Instrument. However, as stated above, we cannot consider the Bank’s exhibits. But

even if we could, the Bank does not explain why Flores’s signature on these documents would

preclude declaratory relief.

Second, the Bank argues that the real property records accurately reflect that a different

bank is the mortgagee of record. However, again, we cannot consider the Bank’s exhibits. But

even if we could, the Bank does not explain why a different bank’s status as mortgagee would

preclude declaratory relief, particularly given her allegations that the actual instruments for the

2006 loan were placed in the name of MERS, an enterprise designed to conceal the actual owners

and holders of real estate financing instruments to enable the perpetration of deceptive trade

practices and fraud; that the Bank is a member or participant in MERS; that the Bank continues to

act as the mortgage servicing agent for U.S. Bank, N.A.; and that the Bank is still attempting to

collect on the note and foreclose the security agreement.

Third, the Bank argues that Flores “did not allege a single fact that would warrant a

declaratory judgment against it that the 2006 Security Instrument was unenforceable.” However,

as noted above, Flores’s pleading did allege that none of the lenders provided a constitutionally

required notice. The Bank does not explain why this allegation, if accepted as true as required

under Rule 91a, would not warrant the declaratory relief requested.

Fourth, the Bank argues that the constitution does not create substantive rights beyond a

defense to foreclosure on a home-equity lien securing a constitutionally noncompliant loan and

that forfeiture is not a constitutional remedy, citing Wood v. HSBC Bank USA, N.A., 505 S.W.3d

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

21
Thus, according to the Bank, Flores is not entitled to a declaratory judgment that the 2006 Security

Instrument was unenforceable “as a matter of law.” However, Flores’s pleading sought a

declaration that the lien at issue is unenforceable “against her homestead,” not unenforceable

generally “as a matter of law.”

Fifth, the Bank argues that Flores “did not allege a single fact that would warrant a

declaratory judgment against [the Bank] that [Flores] was not personally liable for the debt

evidenced by the 2006 Loan because [the Bank] did not foreclose and [the Bank] was not seeking

to collect a deficiency judgment against [Flores] following foreclosure.” However, Flores’s

pleading did allege that the Bank “reported falsely to credit bureaus that [Flores] has personal

liability on this debt,” and the Bank does not explain why the declaratory relief requested would

not be appropriate in relation to this allegation, assuming the allegation is true, which we do for

purposes of Rule 91a.

Finally, the Bank argues that Flores appears to believe that the phrase “without personal

liability” in the loan documents means she does not have to repay the debt. The Bank further

contends that the nonrecourse status of the 2006 Loan did not mean that Flores was not

contractually obligated to repay the loan; rather, as the 2006 Note states, “each person who signs

this Note is responsible for ensuring that all of my promises and obligations in this Note are

performed, including the payment of the full amount owed,” and the nonrecourse status of the

2006 Note simply prevents the mortgagee from seeking a deficiency judgment against Flores

personally for any outstanding loan balance that exceeds the proceeds from the foreclosure sale of

the property. However, even assuming the correctness of the Bank’s argument, we see nothing in

Flores’s pleading or brief on appeal that contradicts it. And even if Flores has an errant belief

regarding how home equity loans work, we do not believe the Bank has identified anything in

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Flores’s pleading that would warrant dismissal under Rule 91a.

As a result, we conclude that Flores’s request for declaratory relief was improperly

dismissed under Rule 91a.

CONCLUSION
We sustain Flores’s single issue on appeal, as her claims were improperly disposed of by

the trial court through the grant of a Rule 91a motion to dismiss. We reverse the trial court’s

judgment and remand for further proceedings consistent with this opinion.

LISA J. SOTO, Justice

October 25, 2023

Before Rodriguez, C.J., Palafox, and Soto, JJ.

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