OPINION
Opinion By
Appellants filed this bill of review, seeking to set aside a default judgment that had allegedly voided property and contract rights owned by Fieldstone Mortgage. Appellants further alleged that they were the proper parties to sue for this relief by virtue of certain assignments by Fieldstone Mortgage. Appellees contested appellants’ standing via pleas to the jurisdiction. The trial judge signed an order denying appellants’ bill of review and subsequently made findings of fact and conclusions of law reciting that the pleas to the jurisdiction were sustained and the proceeding was dismissed. Appellants appealed. We affirm in part and reverse and remand in part.
I. Appeal by Litton Loan Servicing, L.P.
Appellant Litton Loan Servicing, L.P. voluntarily dismissed its appeal with respect to appellees Tony Watson and Jeanie Watson but not with respect to appellee Matthew Aiken. Litton did not file an appellant’s brief, but appellees filed briefs. Accordingly, we will affirm the judgment as to Litton. See Tex.R.App. P. 38.8(a)(3) (permitting court of appeals to affirm judgment based on appellee’s brief when appellant fails to file a brief); In re L.N.E., No. 05-07-01712-CV,
II. Background
The facts of the case are complex. In short, appellant HSBC Bank USA, N.A. alleges that it acquired a note and deed of trust relating to a certain piece of real property and that appellees claimed an interest in the same property when HSBC took steps to foreclose on the property. Because appellees relied in part on a default judgment to establish their title, HSBC filed this bill of review to set aside that default judgment.
Except as noted, the following facts are drawn from HSBC’s live bill-of-review pleading, which was verified, and its responses to appellees’ pleas to the jurisdiction. The default judgment under attack was rendered in a case styled Jeanie Watson and Tony Watson v. First Source Real Estate Services & Property Management, Inc. and Tim Torlincasi dba Supreme Lending. That case arose after the Wat-sons acquired a parcel of real property at 212 Castle Hill Drive in Burleson, Texas (the property) from underlying defendant First Source in July 2004. The Watsons borrowed the purchase money from Field-stone Mortgage, which was the grantee in two deeds of trust on the property. In early 2005, the Watsons sued First Source and Tim Torlincasi in the underlying suit. The final judgment in that suit indicates that the Watsons sued First Source and Torlincasi for statutory fraud, violations of the Texas Deceptive Trade Practices Act, and declaratory judgment. Fieldstone was neither sued nor notified of the suit.
On July 1, 2005, the trial judge signed a default judgment that both awarded damages to the Watsons and voided their purchase of the property. The judgment voided all real estate closing documents relating to the Watsons’ acquisition of the property, including First Source’s warranty deed with vendor’s lien and Fieldstone’s two deeds of trust. Fieldstone, which had not been sued, did not file a motion for new trial or appeal from the default judgment. According to appellees, the default judgment had the effect of re-vesting the property in First Source, free and clear of the liens addressed by the default judgment.
B. The competing claims to the property
HSBC further alleged the following facts in its verified bill of review. The Watsons executed on the default judgment against First Source, resulting in a constable’s sale of the property in August 2006. An entity called Burleson Old Town, L.L.C. purportedly acquired an interest in the property at the constable’s sale. Burleson Old Town conveyed its interest to Matthew and Tobyn Ribitzki in August 2007, but they conveyed that interest back to Burleson Old Town only a few weeks later. Then Burleson Old Town conveyed its interest to Aiken & Ribitzki Investments, L.L.C., which conveyed the interest to appellee Aiken in January 2008.
Meanwhile, HSBC alleged, it acquired the Watsons-Fieldstone note and deed of trust relating to the property in June 2007 by an assignment by Mortgage Electronic Registration Systems, Inc. as nominee for the lender and its successors and assigns. According to Aiken, HSBC took steps towards conducting a nonjudicial foreclosure sale of the property, causing Burleson Old Town to sue HSBC in Johnson County. Aiken asserts that he was later substituted for Burleson Old Town in that litigation.
C.Procedural history of this case
HSBC, now ostensibly standing in the shoes of Fieldstone, filed this bill of review against the Watsons in April 2009. The Watsons answered. Aiken filed a petition in intervention in which he alleged that he and HSBC were already engaged in litigation in Johnson County over the issue of whether Aiken was a bona fide purchaser of the property.
Aiken then filed a plea to the jurisdiction in which he asserted that HSBC lacked standing to bring a bill of review. He also filed a motion to abate in which he argued that abatement was required because HSBC had not joined all necessary parties. Aiken asked the trial judge to abate the case and to dismiss it if HSBC
According to the district clerk’s computer-generated “case summary” contained in the clerk’s record, Aiken’s plea to the jurisdiction and his motion to abate were set for hearing at the same time. The court conducted a nonevidentiary hearing that was devoted mostly to the question of jurisdiction, but the motion to abate was discussed briefly. The Watsons and Aiken then filed post-hearing letter briefs reiterating that the suit should be dismissed for lack of subject-matter jurisdiction and standing. Aiken also filed a supplemental reply with additional objections to HSBC’s evidence. HSBC filed a supplemental response to the pleas to the jurisdiction.
On May 5, 2010, the trial judge signed an order entitled “Order Denying Bill of Review.” Therein, the judge recited, “The Court, having read the pleadings and hearing argument of counsel, finds that the elements for Bill of Review have not been satisfied. Therefore, it is ORDERED, ADJUDGED and DECREED that the Bill of Review is hereby DENIED. All relief herein requested and not expressly granted is hereby DENIED.” HSBC timely requested findings of fact and conclusions of law, filed a notice of past due findings of fact and conclusions of law, and timely filed a notice of appeal. On June 28, 2010, the trial judge signed findings of fact and conclusions of law in which his final conclusion of law was, “The pleas to the jurisdiction filed by the Watsons and Aiken are sustained and the bill of review proceeding is dismissed.”
III. Analysis
A. The nature of the trial court’s judgment
We first clarify the nature of the trial court’s judgment, because the trial judge’s May 5, 2010 “Order Denying Bill of Review” is not consistent with his June 23, 2010 findings of fact and conclusions of law. In the May 5 order, the trial judge recited that “the elements for Bill of Review have not been satisfied” and further stated that the bill of review was “DENIED.” A judgment is a judgment on the merits if it is a decision as to the parties’ rights and liabilities based on the ultimate facts disclosed by the pleadings, evidence, or both, and upon which the right of recovery depends. Am. Acceptance Corp. v. Reynolds,
The judge’s June 23 findings and conclusions, however, conflict with the May 5 denial of HSBC’s bill of review on the merits. Conclusion of law 10 is that HSBC lacked standing, which is a jurisdictional defect. See Martin v. Clinical Pathology Labs., Inc., 343 S.W.Sd 885, 887-88 (Tex.App.-Dallas 2011, pet. denied). Moreover, conclusion of law 11 states, “The pleas to the jurisdiction filed by the Watsons and Aiken are sustained and the bill of review proceeding is dismissed.” Thus, the findings and conclusions indicate that the trial judge intended to dismiss the case for lack of subject-matter jurisdiction
Although conclusion of law 11 is couched in decretal language — “the bill of review proceeding is dismissed” — the findings and conclusions were signed 49 days after the judge signed the order denying the bill of review, and thus outside the trial judge’s plenary power. See Tex.R. Civ. P. 329b(d). HSBC did not file a motion for new trial, and a request for findings of fact and conclusions of law does not extend plenary power beyond the normal 30 days. See Munir Bata, L.L.C. v. Vestal, No. 05-10-00346-CV,
Accordingly, we conclude that the trial judge’s May 5, 2010 order was a final judgment on the merits that denied HSBC any relief on its bill of review. Any part of the June 23 findings of fact and conclusions of law that purports to change the judgment to a jurisdictional dismissal is void. See Florance,
B. Standing
Although the trial judge decided the case on the merits, standing and subject-matter jurisdiction are threshold issues. See Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
1. Standard of review and rules governing pleas to the jurisdiction
We review de novo a challenge to the trial court’s subject-matter jurisdiction. City of Dallas v. Hughes,
A plea to the jurisdiction may challenge the claimant’s pleadings or the existence of jurisdictional facts. See generally id. On a pleadings challenge, we inquire whether the claimant has alleged sufficient facts to demonstrate that the court has jurisdiction to hear the case. Id.
If a plea to the jurisdiction challenges jurisdictional facts, we must consider relevant evidence to resolve the jurisdictional issues. Hughes,
2. Application of the law of standing to the facts of this case
Appellees attached no evidence to their pleas to the jurisdiction and introduced none at the hearing. Accordingly, we analyze the standing question as a pleading issue.
Standing deals with whether a party is the proper person to bring a lawsuit. Webb v. Yoga,
A bill of review is a suit to set aside a prior judgment that is no longer subject to challenge by motion for new trial or appeal. Caldwell v. Barnes,
There is no dispute that HSBC did not allege standing under the general rule as stated in Frost National Bank. That is, HSBC did not allege that it was a party to
a. Whether a bill-of-review claim is assignable.
Whether a bill-of-review claim is assignable appears to be an issue of first impression in Texas. In many bill-of-review cases, the bill-of-review plaintiff is simply a judgment debtor trying to set aside a money judgment. See, e.g., Effel v. McGarry,
As a general rule, causes of action are freely assignable. City of Brownsville ex rel. Pub. Utils. Bd. v. AEP Tex. Cent. Co.,
Appellees rely on the general principle of standing law that a party must assert its own legal rights and interests and cannot rest its claim to relief on the legal rights or interests of third parties. See Wartin v. Seldin,
The policy of this State is to permit the assignment of a cause of action in the absence of policy reasons to forbid the particular kind of assignment. See generally Gandy,
b. Whether HSBC sufficiently pleaded an assignment.
Appellees also argue that Fieldstone did not actually assign the right to bring a bill of review to HSBC. Since appellees did not attempt to disprove the existence of such an assignment, we look to HSBC’s allegations to determine whether HSBC sufficiently pleaded the assignment. See Jones,
HSBC alleged that, after the Watsons obtained their default judgment in July 2005, “[t]he Note and Deed of Trust [executed by the Watsons] were subsequently assigned to HSBC Bank on June 30, 2007.... Litton Loan is the current servi-cer of the loans at issue. Therefore, HSBC Bank, as the current holder of the liens, and Litton Loan, as the servicer, bring this Bill of Review.” HSBC also attached some supporting documentation to its live pleading, including the July 2004 warranty deed with vendor’s lien conveying the property from First Source to the Watsons, a July 2004 deed of trust and note by the Watsons in favor of Field-stone,
HSBC also points out that the deed of trust in favor of Fieldstone as “Lender” specifically gives Lender the right to appear in court to protect Lender’s interest in the property. The deed of trust provides:
If ... there is a legal proceeding that might significantly affect Lender’s interest in the Property and/or rights under this Security Instrument ... then Lender may do and pay for whatever is reasonable or appropriate to protect Lender’s interest in the Property and rights under this Security Instrument.... Lender’s actions can include, but are not limited to: ... appearing in court....
Appellees argue that this language does not constitute a “direct and unambiguous assignment” of Fieldstone’s right to bring a bill of review based on a denial of due process. We reject appellees’ position and conclude that HSBC sufficiently alleged the assignment of the necessary rights. By alleging that it had obtained Field-stone’s rights under the deed of trust quoted above, HSBC alleged that it had also acquired Fieldstone’s right to appear in court to protect its rights under the deed of trust. This bill of review is a court appearance that would protect HSBC’s rights in the deed of trust by setting aside the default judgment that purports to void the deed of trust. Accordingly, we conclude that HSBC’s allegations of assignment, combined with the language of the deed of trust giving “Lender” the right to appear in court in order to protect its rights in the deed of trust, sufficed to plead that HSBC had standing to bring the bill of review.
In the trial court, the Watsons raised another potential basis for contesting the alleged assignment of Fieldstone’s bill-of-review claim to HSBC, namely section 12.014 of the property code. They argued that section 12.014 precludes an assignment of a claim if a lawsuit is not actually pending at the time of the assignment. That statute provides that a judgment or “an interest in a cause of action on which suit has been filed may be sold, regardless of whether the judgment or cause of action is assignable in law or equity, if the transfer is in writing.” Tex. Prop.Code Ann. § 12.014(a) (West Supp. 2011) (emphasis added). The statute goes on to say that if such a written transfer is filed in keeping with certain other statutory requirements, the filing “is notice to and is binding on a person subsequently dealing with the judgment or cause of action.” Id. § 12.014(d). As HSBC points out, we have held that the predecessor to section 12.014 was merely a rule of registration, so as to give all persons notice of the assignment, and the statute “was not intended thereby to prevent the acquisition of title to a judgment, cause of action, or an interest therein, either legal or equitable, in any other lawful manner.” Hunter v. B.E. Porter, Inc.,
c. Whether the default judgment affected the assignability of Field-stone’s bill-of-review claim.
In its second issue on appeal, HSBC argues that the default judgment voiding Fieldstone’s note and deed of trust did not
We agree with HSBC that the default judgment did not bar Fieldstone from assigning the note, the deed of trust, or its bill-of-review claim to HSBC. Contrary to Aiken’s argument in the trial court, the default judgment voiding the documents relating to the closing on the property did not mean the documents no longer existed to be assigned. The default judgment affects the instruments’ legal validity, and if the default judgment is not set aside, the instruments will remain judicially voided despite the assignment. But if HSBC’s bill of review is successful, the default judgment will be set aside, and HSBC will be able to litigate the validity of the note and deed of trust anew. Aiken’s argument assumes that the default judgment is valid and thus that HSBC’s bill of review will fail, but the merits of the bill of review are not presented in this standing challenge. See City of Heath v. Duncan,
3. Conclusion
HSBC pleaded sufficient facts in its live pleading to demonstrate standing to sue. Appellees did not make a proper evidentia-ry attack on HSBC’s jurisdictional allegations, so HSBC had no burden to adduce evidence in support of its standing. On this record, we conclude that the trial court possessed subject-matter jurisdiction over HSBC’s bill of review.
C. Propriety of the denial of HSBC’s bill of review
1. Motion to abate
Having resolved the jurisdictional issue, we turn to the question of whether there was any potentially proper basis for the trial judge to dispose of HSBC’s bill of review on the merits, as he did by his May 5, 2010 “Order Denying Bill of Review.” Although the judge recited in the order that “the elements for Bill of Review have not been satisfied,” the order does not explain the procedural vehicle by which the judge was making such a finding. There was no conventional trial of HSBC’s bill of review. Although HSBC and Aiken filed summary-judgment motions, and it appears that the trial judge heard Aiken’s motion about six weeks before May 5, the May 5 order does not mention the summary-judgment motions, and no party ar
HSBC includes an argument in its appellate brief that the trial judge’s dismissal of the case “for lack of standing” cannot be upheld on the theory of failure to join necessary parties. Although the trial judge actually rendered judgment on the merits rather than for lack of standing, the substance. of HSBC’s argument is broad enough to attack the necessary-parties ground raised in Aiken’s motion to abate claims. HSBC argues that the judgment cannot stand on this basis because a trial court cannot dismiss a ease for failure to join necessary parties unless it has given the offending party an opportunity to cure the defect. And indeed, in his motion to abate Aiken asked the trial judge to dismiss the case only if HSBC failed to join all necessary parties after an opportunity to do so.
As HSBC points out, a trial judge must grant an opportunity to amend when he grants a plea in abatement. KSNG Architects, Inc. v. Beasley,
Appellees argue that the denial of HSBC’s bill of review was justified because HSBC’s failure to join all parties interested in the underlying default judgment turned HSBC’s suit into an improper collateral attack. Appellees are correct that all parties who are interested in the underlying judgment and will be directly and materially affected by the relief sought in a bill of review are “indispensable parties, without whose presence the action becomes a collateral attack.” Hunt v. Ramsey,
Appellees’ cases do not support the proposition that the trial judge could properly deny HSBC’s bill of review outright based on Aiken’s motion to abate. In Neely v. Schooler,
We express no opinion on the merits of Aiken’s motion to abate. We conclude only that the trial judge erred by denying HSBC’s bill of review outright on that basis without giving HSBC an opportunity to cure any defect that may have existed.
2. Res judicata
In its third issue on appeal, HSBC argues that the trial judge erred by relying on res judicata as a basis for disposing of HSBC’s bill of review. It appears that HSBC makes this argument because ap-pellees discussed res judicata in their post-hearing briefs in the trial court. Appellees respond that the trial court did not rely on res judicata as a basis for disposing of the case. We agree with appellees and conclude that HSBC’s third issue is immaterial.
Appellees did not rely on res judi-cata in their pleas to the jurisdiction. Nor did Aiken rely on res judicata in his motion to abate. Moreover, the trial judge did not mention res judicata in the order in which he denied HSBC’s bill of review. In the order, the judge recited that “the elements for Bill of Review have not been satisfied,” but he did not mention any affirmative defenses such as res judicata. See Tex.R. Civ. P. 94 (listing res judicata as an affirmative defense). Because res judicata was not presented to the trial judge as a basis for judgment, HSBC has no burden on appeal to demonstrate that res judicata does not support the trial court’s judgment. See Victoria Gardens of Frisco v. Walrath,
D. The merits of HSBC’s bill of review
In its fourth issue on appeal, HSBC argues that it adduced evidence of all of the necessary elements for bill-of-review relief. HSBC includes this argument because of the language in the October 5 order that “the elements for Bill of Review have not been satisfied.” We have already concluded that the jurisdictional pleas attacked only HSBC’s pleadings and that the judge’s denial of HSBC’s bill of review on the merits was erroneous and must be reversed. Accordingly, it is unnecessary for us to address HSBC’s fourth issue on appeal. See Tex.R.App. P. 47.1.
IY. Disposition
For the foregoing reasons, we reverse the trial court’s judgment with respect to the claims of appellant HSBC and remand the case for further proceedings as to those claims. We affirm the trial court’s judgment as to appellant Litton Loan Servicing, L.P.
Notes
. In its live petition, HSBC alleges that Field-stone made two loans to the Watsons and obtained two deeds of trust. Only one deed of trust is attached to the petition. But HSBC's failure to attach the other alleged deed of trust does not affect our analysis.