Nancy Alanis v. Wells Fargo Bank National Association, as Trustee for the Pooling and Servicing Agreement Dated October 1, 2006 Securitized Asset Backed Receivables LLC Trust 2006-NC3 Mortgage Pass Through Certificates Series 2006 NC3 Homeq Servicing Corporation ( 2016 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-16-00121-CV
Nancy ALANIS,
Appellant
v.
WELLS FARGO BANK NATIONAL ASSOCIATION, as Trustee for the Pooling and
Servicing Agreement Dated October 1, 2006 Securitized Asset Backed Receivables LLC Trust
2006-NC3 Mortgage Pass Through Certificates Series 2006 NC3;
Mackie Wolf Zientz & Mann, P.C.; and Ocwen Loan Servicing, LLC,
Appellees
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2011-CI-02839
Honorable Gloria Saldana, Judge Presiding 1
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: December 14, 2016
REVERSED AND REMANDED
Nancy Alanis appeals a series of trial court orders granting summary judgment in favor of
Wells Fargo Bank National Association, as Trustee for the Pooling and Servicing Agreement
Dated October 1, 2006 Securitized Asset Backed Receivables LLC Trust 2006-NC3 Mortgage
1
On March 3, 2016, the Honorable Gloria Saldana signed an order on a motion for partial summary judgment stating
the order disposes of all remaining parties and claims. On May 12, 2016, the Honorable Antonia Arteaga signed an
order vacating a default judgment entered against HomeEq Servicing Corporation. On May 24, 2016, the Honorable
Larry Noll signed an order severing appellant’s claims against HomEq Servicing Corporation into a separate cause
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04-16-00121-CV
Pass Through Certificates Series 2006 NC3, (“Wells Fargo”) on its counterclaim for judicial
foreclosure and in favor of Wells Fargo, Mackie Wolf Zientz & Mann, P.C. (“Law Firm”), and
Ocwen Loan Servicing, LLC (“Ocwen”) on all claims asserted by Alanis against them. Alanis
also appeals the trial court’s order severing her claims against HomeEq Servicing Corporation into
a separate cause. We reverse the trial court’s severance order and remand the cause for further
proceedings.
BACKGROUND
In June of 2006, Alanis borrowed $193,500 from New Century Mortgage Company to
purchase a house. Alanis signed a note secured by a deed of trust. The note and deed of trust
appear to have been assigned to Wells Fargo on or about October 31, 2006. 2 At that time, HomeEq
serviced the loan for Wells Fargo.
In April of 2010, HomeEq sent Alanis notice of a substitute trustee’s sale scheduled for
June 1, 2010; however, HomeEq subsequently suspended the foreclosure. HomeEq transferred
the servicing of the loan to Ocwen effective August 31, 2010.
In December of 2010, Ocwen sent Alanis notice of default with intent to accelerate. In
January of 2011, the Law Firm sent Alanis notice of Wells Fargo’s acceleration and intent to
foreclose.
In February of 2011, Alanis filed the underlying lawsuit asserting numerous causes of
action against Wells Fargo, the Law Firm, Ocwen, and HomeEq. On May 6, 2011, Alanis took a
default judgment against HomeEq. Wells Fargo, the Law Firm, and Ocwen obtained a series of
orders granting partial summary judgments in their favor relating to various claims asserted by
Alanis, culminating in an order dated March 3, 2016 which (1) granted Wells Fargo a summary
2
This date is based on the declaration of Ocwen’s senior loan analyst. Although Alanis disputes the date of the
assignment, we need not resolve the actual date of the assignment in resolving this appeal.
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judgment on their counterclaim for a judicial foreclosure, (2) declared that Alanis take nothing on
certain claims, and (3) stated the judgment fully and finally disposed of all remaining parties and
claims.
On May 12, 2016, the trial court signed an order setting aside the default judgment against
HomeEq. On May 24, 2016, the trial court signed an order severing Alanis’s claims against
HomeEq into a separate cause. Alanis appeals.
SEVERANCE
In her sixteenth issue, Alanis contends the trial court erred in granting the severance
because her claims against HomeEq are so interwoven with her other claims that they involve the
same facts and issues. The appellees respond the claims against HomeEq are separate and distinct
from the claims against Wells Fargo, Ocwen, and the Law Firm.
Rule 41 of the Texas Rules of Civil Procedure allows for any claim against a party to be
“severed and proceeded with separately.” TEX. R. CIV. P. 41. Rule 41 gives the trial court broad
discretion to sever claims, and a trial court’s order granting a severance will not be reversed absent
an abuse of discretion. Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658
(Tex. 1990). A trial court abuses its discretion if it acts contrary to guiding rules and principles.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The guiding rule
with regard to severance is that “[a] claim is properly severable if (1) the controversy involves
more than one cause of action, (2) the severed claim is one that would be the proper subject of a
lawsuit if independently asserted, and (3) the severed claim is not so interwoven with the remaining
action that they involve the same facts and issues.” Guar. Fed. Sav. Bank, 793 S.W.2d at 658; see
also State Dep’t of Highways & Pub. Transp. v. Cotner, 845 S.W.2d 818, 819 (Tex. 1993) (holding
trial court erred in severing claim where third criterion was not met); Owens v. Owens, 228 S.W.3d
721, 726 (Tex. App.—Houston [14th Dist.] 2006, pet. dism’d) (noting trial court abuses its
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04-16-00121-CV
discretion in granting severance where one of the three criteria is not met); Dalisa, Inc. v. Bradford,
81 S.W.3d 876, 881 (Tex. App.—Austin 2002, no pet.) (noting trial court’s discretion may not be
exercised in a manner contrary to rule forbidding severance of a claim that is interwoven with
remaining claims to the extent that they involve the same facts and issues).
In the instant case, the claims against HomeEq arise from the actions HomeEq took as
Wells Fargo’s loan servicer. The summary judgment evidence filed by Wells Fargo and Ocwen
includes an affidavit of Ocwen’s senior loan analyst Gina Feezer. In her affidavit, Feezer relies
on HomeEq’s business records documenting its loan servicing actions to support the dates on
which Alanis defaulted and the amount Alanis owes on the note. Therefore, the claims by Alanis
against HomeEq regarding its loan servicing actions necessarily involve the same facts and issues
as the claims against Wells Fargo. In its brief, Wells Fargo recognizes that Alanis’s claims
asserting improper accounting in the servicing of the loan arise from HomeEq’s application of
“bundled payments” and HomeEq’s purchase of a “lender placed insurance policy.” Accordingly,
any improper actions by HomeEq in servicing the loan are interwoven with Alanis’s claims against
Wells Fargo and Wells Fargo’s claim for judicial foreclosure. Therefore, because we hold the
claims against HomeEq are so interwoven with the claims against Wells Fargo that they involve
the same facts and issues, the trial court abused its discretion in severing the claims. See Cotner,
845 S.W.2d at 819; Owens, 228 S.W.3d at 726; Dalisa, Inc., 81 S.W.3d at 881. Having determined
the severance was improper, we do not reach Alanis’s remaining issues. See Lousteau v. Noriega,
No. 01-15-00254-CV, 2016 WL 4537371, at *6 (Tex. App.—Houston [1st Dist.] Aug. 30, 2016,
no pet.) (mem. op.) (concluding trial court erred in entering severance order and appellate court
lacked jurisdiction to consider remaining issues raised on appeal because judgment was
interlocutory); In re B.T.G., 494 S.W.3d 839, 843-44 (Tex. App.—Dallas 2016, no pet.) (holding
severance improper and concluding issues other than severance not properly before appellate
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court); In re Hoover, Bax & Slovacek, L.L.P., 6 S.W.3d 646, 649 (Tex. App.—El Paso 1999, orig.
proceeding) (noting appellate court lacks jurisdiction to consider other issues raised on appeal after
holding severance was improper because order being appealed becomes interlocutory); Tiger v.
Samson Homes, Inc., No. 14-97-0361, 1999 WL 160995, at *2 (Tex. App.—Houston [14th Dist.]
Mar. 25, 1999, pet. denied) (mem. op.) (declining to address remaining issues after determining
severance was improper); Nicor Expl. Co. v. Fla. Transmission Co., 911 S.W.2d 479, 483 (Tex.
App.—Corpus Christi 1995, writ denied) (declining to reach remaining issues after determining
severance was improper); but see Rucker v. Bank One Tex., N.A., 36 S.W.3d 649, 652 (Tex. App.—
Waco 2000, pet. denied) (holding improper severance does not prevent appellate court from
considering remaining issues on appeal).
CONCLUSION
Because the trial court erred in severing Alanis’s claims against HomeEq, we reverse the
trial court’s order and remand the cause for further proceedings.
Sandee Bryan Marion, Chief Justice
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