john-forsyth-v-wachovia-mortgage-company-residential-credit-solutions ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00139-CV
John Forsyth, Appellant
v.
Wachovia Mortgage Company; Residential Credit Solutions, Inc.; Mortgage Electronic
Registration Systems (MERS); FV REO 1, LLC; and Timothy J. Harvard, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-10-003840, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING
MEMORANDUM OPINION
John Forsyth appeals a final summary judgment that he take nothing on claims
relating to the foreclosure sale of residential property then owned by him and his wife, Susan.1 We
will affirm the district court’s judgment.
In March 2006, appellee Wachovia Mortgage Company (Wachovia) loaned $135,000
to the Forsyths to help finance their purchase of residential property. In connection with the loan,
1
Both John and Susan were plaintiffs below, and the notice of appeal and subsequent
briefing, filed pro se (as the Forsyths have acted throughout the proceedings) purport to seek
appellate relief on behalf of both of them. However, the notice of appeal is signed solely by John,
a layperson, and is ineffective to perfect an appeal on Susan’s behalf. See, e.g., Paselk v. Rabun,
293 S.W.3d 600, 606 (Tex. App.—Texarkana 2009, pet. denied); see also Tex. R. App. P. 9.1(b) (“A
party not represented by counsel must sign any document that the party files . . . .”). Consequently,
Susan has not perfected an appeal, and we must dismiss the purported appeal on her behalf for want
of subject-matter jurisdiction. See, e.g., Paselk, 293 S.W.3d at 606. But we observe that even if
Susan’s attempted appeal had been properly perfected, we would affirm the district court’s judgment
against her for the same reasons that we affirm it as to her husband.
Susan signed a note payable to Wachovia, and Susan and John signed a Deed of Trust pledging a
security interest in the property. After the Forsyths failed to make a scheduled payment and thereby
defaulted on the loan, the loan servicer, appellee Residential Credit Solutions, Inc. (Residential
Credit), sent notice of the lender’s intent to accelerate the loan if the default was not cured within
thirty days. When the Forsyths failed to cure, Residential Credit sent notice that it had accelerated
the unpaid balance of the note and that the property would be sold at a non-judicial foreclosure
sale initially scheduled for June 1, 2010. The sale ultimately went forward on September 7, 2010,
at which the property was conveyed to appellee FV REO 1, LLC.
Prior to and continuing after the foreclosure sale, the Forsyths prosecuted litigation
in federal court against Wachovia, Residential Credit, FV REO 1, LLC, and appellee Mortgage
Electronic Registration Systems (MERS) centering on the “wrongful foreclosure” of the property and
related theories of “fraud” and unlawful “conspiracy” to deprive the Forsyths of their home and
improperly collect the underlying debt. The Forsyths’ federal court suit was ultimately concluded by
a February 23, 2011 dismissal with prejudice holding that they had failed to meet the “heightened
pleading requirements of Federal Rule of Civil Procedure 9(b)” and had “not provided the Court
with a set of facts that asse[r]t a plausible claim for relief.” In the meantime, the Forsyths also filed
the underlying state court suit alleging “wrongful foreclosure,” “fraud,” “civil conspiracy,” and
“due process” violations, and seeking to “quiet title” to the property. The defendants below (appellees
here) answered and then, subsequent to the dismissal of the Forsyths’ federal action, moved for
summary judgment on both no-evidence and traditional grounds that included res judicata and
collateral estoppel arising from the federal court judgment. The district court granted appellees’
motion without stating the specific grounds on which it relied.
2
John now raises several issues complaining of the district court’s judgment.
However, even while we have liberally permitted him to supplement his pro se briefing, he has not
challenged the appellees’ res judicata and collateral estoppel grounds for summary judgment.
Because those unchallenged summary-judgment grounds are singularly sufficient to support the
district court’s judgment, we must affirm on that basis without need to reach John’s appellate
issues (which, even if meritorious, would merely identify harmless error). See Carr v. Brasher,
776 S.W.2d 567, 569 (Tex. 1989); Jack v. Holiday World of Houston, 262 S.W.3d 42, 49–50
(Tex. App.—Houston [1st Dist.] 2008, no pet.); Britton v. Texas Dep’t of Criminal Justice,
95 S.W.3d 676, 681–82 (Tex. App.—Houston [1st Dist.] 2002, no pet.); see also Barefield v. Lone
Star Beef Prod., No. 03-12-00329-CV, 2012 WL 3793145, at *1 (Tex. App.—Austin Aug. 31, 2012,
no pet.) (mem. op.); see also Tex. R. App. P. 47.1.2
We affirm the district court’s judgment.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Jones, Justices Pemberton and Rose
Affirmed
Filed: January 3, 2014
2
We are bound to apply the same procedural and substantive standards to the Forsyths as
with litigants represented by counsel. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85
(Tex. 1978) (“There cannot be two sets of procedural rules, one for litigants with counsel and the
other for litigants representing themselves. Litigants who represent themselves must comply with
the applicable procedural rules, or else they would be given an unfair advantage over litigants
represented by counsel.”).
3