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
04-16-00121-CV
| Tex. App. | Dec 14, 2016Background
- In 2006 Nancy Alanis executed a note secured by a deed of trust for a house; the loan was later assigned to Wells Fargo and serviced initially by HomeEq.
- HomeEq sent a substitute-trustee sale notice in 2010 but suspended the foreclosure; servicing transferred to Ocwen in August 2010.
- Ocwen and then the Law Firm sent notices of default/acceleration in late 2010 and early 2011.
- Alanis sued Wells Fargo, Mackie Wolf Zientz & Mann, P.C. (the Law Firm), Ocwen, and HomeEq in February 2011; she obtained a default judgment against HomeEq in May 2011 which was later set aside.
- The trial court granted partial summary judgments for Wells Fargo, the Law Firm, and Ocwen, including a summary judgment in favor of Wells Fargo on its counterclaim for judicial foreclosure and an order purporting to dispose of all remaining parties and claims.
- The trial court later severed Alanis’s claims against HomeEq into a separate cause; Alanis appealed the severance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by severing Alanis’s claims against HomeEq | Alanis: claims against HomeEq are factually interwoven with claims against Wells Fargo and others and thus should not be severed | Appellees: claims against HomeEq are separate and properly severable | Court reversed severance — claims against HomeEq are so interwoven with claims against Wells Fargo that they involve the same facts and issues; severance was an abuse of discretion |
| Whether appellate court may reach other issues after finding severance improper | Alanis: (not reached if severance reversed) | Appellees: (some contend other issues should be considered) | Court declined to reach remaining issues because the severance ruling rendered the appealed order interlocutory |
Key Cases Cited
- Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652 (Tex. 1990) (three-part test for proper severance and standard of review)
- State Dep’t of Highways & Pub. Transp. v. Cotner, 845 S.W.2d 818 (Tex. 1993) (severance improper where claims are interwoven)
- Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (abuse of discretion standard requires adherence to guiding rules and principles)
- Owens v. Owens, 228 S.W.3d 721 (Tex. App.—Houston [14th Dist.] 2006) (trial court abuses discretion if severance criteria not met)
- Dalisa, Inc. v. Bradford, 81 S.W.3d 876 (Tex. App.—Austin 2002) (trial court may not sever claims that are interwoven to the extent they involve the same facts and issues)