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Affirmed and Memorandum Opinion filed January = 15,=20 2008.

 

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-06-00734-CV

____________

 

KELLY LEE=20 SUMMERS, = Appellant

 

V.

 

AMERIQUEST=20 MORTGAGE COMPANY, = Appellee

 

 

On Appeal from the = 151st District Court

Harris County, = Texas

Trial Court Cause = No. 2005-37522

 

 

M E M O R=20 A N D U M   O P I N I O N

In this=20 home equity mortgage foreclosure case, Kelly Lee Summers appeals = the trial=20 court=3Ds grant of=20 summary judgment in favor of Ameriquest Mortgage Company.  = Summers=20 contends that her home equity loan is invalid because it violates = the=20 Texas Constitution and that an earlier judgment declaring it valid = and=20 enforceable is therefore void.  We affirm.

Factual and=20 Procedural Background

In July=20 2002, Summers executed a home equity loan with Ameriquest secured = by a=20 lien on Summer=3Ds=20 homestead property located at 726 Sue Barnett Drive, Houston, = Texas. =20 The 2002 loan was paid in full when Summers refinanced it by = executing a=20 second home equity loan with Ameriquest in March 2003.  = The March 2003 loan = was=20 evidenced by two documents, a ATexas Home Equity=20 Note@ (the Anote@) and a ATexas Home Equity = Security=20 Instrument@ (the Alien@), both dated March = 19, 2003.=20

In 2004,=20 Ameriquest filed a declaratory judgment action against Summers.[1] =20 Ameriquest alleged that, after Summers executed the July 2002 = loan, she=20 complained that the loan did not comply with Avarious=20 provisions of Article XVI, sec. 50 of the Texas = Constitution.@[2] =20 Ameriquest offered to cure the purported defects in the form of a = new loan=20 to refinance the July 2002 loan, and Summers accepted.  = Summers then=20 executed the March 2003 loan pursuant to a settlement and = release.[3] =20 According to Ameriquest=3Ds=20 pleading, Summers then complained that the lien evidenced by the = Security=20 Instrument was void because it refinanced a home equity loan less = than one=20 year after the June 2002 loan in violation of Article XVI, section = 50(a)(6) of the Texas Constitution, and demanded that Ameriquest = release=20 the lien.  Ameriquest responded to this demand by = Aunilaterally=20 curing any defect in the March 2003 loan by crediting = Summers=3Ds account=20 with $1,000 and offering to make a new loan with Summers as = provided by=20 Article XVI, section 50(a)(6) of the Texas = Constitution,@ = but=20 Summers rejected this offer.  Ameriquest sought a declaration = that=20 any defects in its security interest in Summers=3Ds property=20 were cured and the lien against the property was valid and=20 enforceable.

Summers=20 answered Ameriquest=3Ds=20 declaratory judgment action and asserted that, because the March = 2003 loan=20 closed within one year of the July 2002 loan in violation of = Article XVI,=20 section 50(a)(6)(M)(ii) of the Texas Constitution, the lien was = void and=20 the defect could not be cured.

Ameriquest=20 moved for summary judgment, and in response Summers asserted her = defense=20 that the lien violated Article XVI, section 50(a)(6)(M)(ii) of the = Texas=20 Constitution and was void.  On December 21, 2004, the trial = court=20 granted summary judgment in favor of Ameriquest, concluding that=20 Ameriquest had established as a matter of law that Athe lien=20 Y = is fully=20 valid and enforceable and secures repayment of the debt therein = described=20 by creation and continuation of a lien against = [Summers=3Ds]=20 homestead property.@ =20 Summers did not appeal this judgment.

In June=20 2005, Ameriquest sued Summers for judicial foreclosure after she = defaulted=20 on the loan.  Summers answered and again asserted that the = loan was=20 invalid under Article XVI, section 50(a)(6)(M)(ii) of the Texas=20 Constitution, because the second loan closed within one year of = the first=20 loan, and the defect could not be cured.

Ameriquest=20 moved for summary judgment on its request for judicial = foreclosure. =20 It also asserted that Summers=3Ds defense=20 was barred by the doctrine of res judicata, and attached as = evidence the=20 pleadings and judgment from the 2004 declaratory judgment = action.  In=20 response, Summers again asserted that the lien securing the March = 2003=20 loan violated Article XVI, section 50(a)(6)(M)(ii) of the Texas=20 Constitution, and that this defect could not be cured.  = Further,=20 Summers asserted that the trial court=3Ds judgment=20 from the earlier action was void because it contradicted a = provision of=20 the Texas Constitution and so could not form the basis for a claim = of res=20 judicata.  In reply, Ameriquest asserted that, even if the = lien was=20 invalid initially, Summers ignored the provisions of the Texas=20 Constitution that enable lenders like Ameriquest the opportunity = to cure=20 defects.

The trial=20 court granted a final summary judgment in favor of = Ameriquest. =20 Summers moved for a new trial and the trial court held a hearing = on the=20 motion, but the record does not reflect whether the motion was = denied or=20 was overruled by operation of law.  This appeal = followed.

Analysis of=20 the Issues

On appeal,=20 Summers raises two issues, which we quote verbatim:  (1) Can = a home=20 equity lien be valid when it clearly fails to comply with a = constitutional=20 requirement and fails to explain why that portion of the = Constitution=20 should be ignored? and (2) Can a void summary judgment be = upheld?  We=20 address these issues below.

I.       =20 The Validity of the Lien

In this=20 issue, Summers does not dispute that she was in default on the = home equity=20 loan.  Instead, she argues that the lien is invalid because = it=20 violates Article XVI, section 50(a)(6)(M)(ii) of the Texas=20 Constitution.  In response, Ameriquest contends this argument = was=20 previously litigated on the merits in the 2004 declaratory = judgment=20 action, and therefore it is barred by principles of res judicata = and=20 collateral estoppel.  In considering this issue, we apply the = well-established standard of review applicable to a traditional = summary=20 judgment.  See Tex. R.=20 Civ. P. 166a; Nixon v. Mr. Prop. Mgmt. Co., 690 = S.W.2d 546,=20 548B49 (Tex.=20 1985).

A.     =20 The Applicable Law

In 1997,=20 the Texas Constitution was amended to allow home equity loans = against a=20 homestead.  Doody v. Ameriquest Mortgage Co., 49 = S.W.3d 342,=20 343 (Tex. 2001).  The amendment details the terms and = conditions for=20 a home equity loan and the borrower=3Ds and=20 lender=3Ds rights=20 and obligations.  Doody, 49 S.W.3d at 343.  = Relevant=20 here, the amendment included the requirement that a home equity = loan could=20 not close before Athe first=20 anniversary of the closing date of any other extension of credit = described=20 by Subsection (a)(6) of the section secured by the same homestead=20 property.@ =20 Tex. Const. art. XVI, ' = 50(a)(6)(M)(ii) (amended 2007) (current version at Tex. Const. = art. XVI,=20 ' = 50(a)(6)(M)(iii)).[4]  =20

One of the=20 amendment=3Ds=20 conditions for a lien=3Ds validity=20 is that the lender or any noteholder for the extension of credit = shall=20 forfeit all principal and interest of the extensions of credit if = it fails=20 to comply with its obligations under the extension of credit = within a=20 reasonable time after it is notified by the borrower of its = failure to=20 comply.  Doody, 49 S.W.3d at 343; Tex. Const. art. = XVI,=20 ' = 50(a)(6)(Q)(x) (amended 2003).  Section = 50(a)(6)(Q)(x)=3Ds cure=20 provision provides a means for the lender to correct mistakes = within a=20 reasonable time in order to validate a lien securing a section = 50(a)(6)=20 extension of credit.  Doody, 49 S.W.3d at 346. =20

B.     =20 Res Judicata and Collateral Estoppel

In both=20 the present case and the 2004 declaratory judgment action, Summers = argued=20 that section 50(a)(6)(M)(ii)=3Ds=20 requirement that a home equity loan could not close within one = year of=20 another home equity loan on the same homestead property renders = the lien=20 invalid, and because the problem is a temporal one, it cannot be=20 retroactively cured.  We agree with Ameriquest that the = doctrine of=20 res judicata bars Summers from relitigating this claim in this = case.=20

Broadly=20 speaking, res judicata is the generic term for a group of related = concepts=20 concerning the conclusive effects given final judgments.  = Barr v.=20 Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992).  = Within=20 this general doctrine, there are two principal categories:  = (1) claim=20 preclusion (also known as res judicata); and (2) issue preclusion = (also=20 known as collateral estoppel).  Id.  Res = judicata, or=20 claim preclusion, prevents the relitigation of a claim or cause of = action=20 that has been finally adjudicated, as well as related matters = that, with=20 the use of diligence, should have been litigated in the prior = suit. =20 Id.  Issue preclusion, or collateral estoppel, = prevents=20 relitigation of particular issues already resolved in a prior = suit. =20 Id.

To apply,=20 res judicata requires proof of (1) a prior final judgment on the = merits by=20 a court of competent jurisdiction; (2) identity of parties or = those in=20 privity with them; and (3) a second action based on the same = claims as=20 were raised or could have been raised in the first action. =20 Amstadt v. U.S. Brass Corp, 919 S.W.2d 644, 652 (Tex. = 1996). =20 For the doctrine of collateral estoppel to bar re-litigation of an = issue,=20 it must be proved that (1) the facts sought to be litigated in the = second=20 action were fully and fairly litigated in the first action, (2) = those=20 facts were essential to the judgment in the first action, and (3) = the=20 parties who litigated in the second action were cast as = adversaries. =20 Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 801 (Tex.=20 1994).  The party asserting these defenses has the burden to = present=20 evidence that they apply.  See In re H.E. Butt Grocery = Co., 17=20 S.W.3d 360, 377 (Tex. App.CHouston=20 [14th Dist.] 2000, orig. proceeding) (collateral estoppel); = Bell v.=20 Moores, 832 S.W.2d 749, 754 (Tex. App.CHouston=20 [14th Dist.] 1992, writ denied) (res = judicata).

Ameriquest=3Ds summary=20 judgment evidence showed that in the 2004 action, it sought a = declaratory=20 judgment to resolve Summers=3Ds claim=20 that Ameriquest=3Ds lien was=20 invalid.  Summers answered the suit and pleaded that the lien = violated section 50(a)(6)(M)(ii) because the lien was closed less = than one=20 year after Ameriquest closed an earlier home equity loan to = Summers. =20 Based on the evidence before it, the trial court concluded as a = matter of=20 law that the lien securing the March 2003 loan was valid and=20 enforceable.[5] =20 Summers did not appeal the trial court=3Ds judgment=20 in that action.

Summers=20 does not dispute that the 2004 declaratory judgment action = litigated on=20 the merits Summers=3Ds defense=20 that Ameriquest=3Ds lien was=20 invalid under section 50(a)(6)(M)(ii)Cthe=20 identical issue she raises as a defense in the present case.  = The=20 parties in both are identical and the judgment was final.  = Thus, the=20 trial court in the present case would not have erred in concluding = that=20 Summers=3Ds defense=20 was barred by the principles of res judicata and collateral=20 estoppel.

Even if=20 the trial court rejected Ameriquest=3Ds=20 affirmative defense and ruled on the merits of Summers=3Ds=20 complaintCthat the=20 lien is invalid under Article XVI, section 50(a)(6)(M)(ii) because = it was=20 closed less than one year after Ameriquest closed the earlier home = equity=20 loan to SummersCwe would=20 be constrained to conclude that the trial court did not err in = rejecting=20 this complaint, given the Texas Supreme Court=3Ds broad=20 pronouncement in Doody that Asection=20 50(a)(6)(Q)(x) is a cure provision that applies to all of = section 50(a)=20 and . . . operates as a cure provision that validates a lien = securing=20 a section 50(a)(6) extension of credit.@ =20 Doody, 49 S.W.3d at 345B46=20 (emphasis added); see also Adams v. Ameriquest Mortgage = Co., 307=20 B.R. 549, 558 (N.D. Tex. 2004) (applying broad language of = Doody to=20 reject debtors=3D = argument=20 that some requirements found in section 50(a)(6)(A)B(Q) cannot=20 be cured because no subsequent act by the lender can A>turn back=20 time=3D@). =20 The Doody court=3Ds=20 pronouncement that the cure provision applies to all of section = 50(a)(6)=20 would necessarily include section 50(a)(6)(M)(ii)=3Ds=20 requirement that two home equity loans must not close within one=20 year.  Thus, Summers=3Ds argument=20 that the temporal defect could never be cured must fail.  =

Further,=20 we note that a more recent amendment to the cure provision of = section=20 50(a)(6)(Q)(x), setting out the particular cure Ameriquest = offered,=20 provides additional support for this conclusion.[6] =20 Of particular relevance is the following:

(x) except as = provided by=20 Subparagraph (xi) of this paragraph, the lender or any holder of = the note=20 for the extension of credit shall forfeit all principal and = interest of=20 the extension of credit if the lender or holder fails to comply = with the=20 lender=3Ds or = holder=3Ds obligations under = the=20 extension of credit and fails to correct the failure to comply not = later=20 than the 60th day after the date the lender or holder is notified = by the=20 borrower of the lender's failure to comply by:

(a) paying to the = owner an=20 amount equal to any overcharge paid by the owner under or related = to the=20 extension of credit if the owner has paid an amount that exceeds = an amount=20 stated in the applicable Paragraph (E), (G), or (O) of this=20 subdivision;

***

(f) if the=20 failure to comply cannot be cured under Subparagraphs = (x)(a)B(e) of=20 this paragraph, curing the failure to comply by a refund or = credit to=20 the owner of $1,000 and offering the owner the right to refinance = the=20 extension of credit with the lender or holder for the remaining = term of=20 the loan at no cost to the owner on the same terms, including = interest, as=20 the original extension of credit with any modifications necessary = to=20 comply with this section or on terms on which the owner and = the lender=20 or holder otherwise agree that comply with this section = Y = .

Tex.=20 Const. art. XVI, ' = 50(a)(6)(Q)(x) (emphasis added).  Referencing the=20 amendment=3Ds=20 legislative history, courts have determined that this amendment = was=20 intended Ato clarify=20 already existing rights of the lender under the cure = provision@ = and=20 Aexpressly=20 provides for the cure of other defects where the cure itself will = not=20 fully fulfill the purpose of the requirement.@ =20 See Adams, 307 B.R. at 558; Fix, 2007 WL 4126919, at = *5.  This conclusion is consistent with the Texas Supreme=20 Court=3Ds=20 pronouncement in Doody that the cure provision applies to=20 Aall the=20 lender=3Ds=20 obligations under the extension of credit.@ =  Doody, 49 S.W.3d at 345, 347.

Therefore,=20 the trial court could have correctly concluded that Ameriquest was = entitled to correct its failure to comply with its constitutional=20 obligations within a reasonable time after Summers notified it = that the=20 lien did not comply with section 50(a)(6)(M)(ii)=3Ds=20 requirement that two home equity loans must not close within one=20 year.  Doody, 49 S.W.3d at 343; Fix, 2007 WL = 4126919,=20 at *6B7=20 (affirming summary judgment for lender on ground that it properly = and=20 timely offered to cure constitutional defects in loan under = pre-2003=20 amendment version of section 50(a)(6)(Q)(x) of Texas = Constitution). =20 Ameriquest made an offer to cure Summers=3Ds=20 complaint and validate the lien, but Summers rejected it.  = Summers=20 complains that the cure offered was inapplicable because the=20 constitutional amendment specifically providing for it was not = enacted=20 until after the home equity loan was executed.  But, other = than=20 complaining that a temporal problem cannot be curedCa position=20 that is at odds with DoodyCSummers=20 does not contend that the cure offered was unreasonable under the=20 then-existing version of section 50(a)(6)(Q)(x).

We=20 overrule Summers=3Ds first=20 issue.

II.      =20 The Validity of the Judgment

In her=20 second issue, Summers contends the trial court=3Ds judgment=20 in the earlier 2004 declaratory judgment action is void because it = violates a specific provision of the Texas Constitution, and = therefore it=20 cannot be given preclusive effect.[7] =20 Ameriquest contends the earlier judgment is not void and=20 Summers=3Ds argument=20 is an impermissible attack on the earlier judgment.  We agree = with=20 Ameriquest.

To support=20 her argument that a plain reading of section 50(a)(6)(M)(ii) = renders the=20 March 2003 lien invalid because it was part of a home equity loan = closing=20 less than one year after the June 2002 home equity loan closing, = Summers=20 cites to the Doody court=3Ds=20 discussion of the general rules courts apply when interpreting the = Texas=20 Constitution.  See Doody, 49 S.W.3d at 344.  = However,=20 this citation does not aid Summers because the meaning of this = provision=20 is not disputed.  As discussed above, the dispute concerns = whether=20 Ameriquest was entitled to cure its failure to comply with this = provision,=20 and as we have determined, the Doody court=3Ds=20 interpretation of the Texas Constitution=3Ds cure=20 provision is at odds with Summers=3Ds=20 position.

Next,=20 Summers cites to two cases involving void judgments in other=20 contexts.  See In re Hamel, 180 S.W.3d 226, = 227B28 (Tex.=20 App.CSan=20 Antonio 2005, orig. proceeding) (holding relator entitled to writ = of=20 mandamus to vacate turnover order based on underlying void default = judgment); In re Jamilah, Nos. 01-05-00521-CV, = 01-05-00522-CV, 2005=20 WL 1704506, at *3 (Tex. App.CHouston=20 [1st Dist.] 2005, orig. proceeding) (mem. op.) (holding final = judgment=20 void because automatic bankruptcy stay deprived court of = jurisdiction over=20 debtor and his property).  However, neither of these cases=20 demonstrate that a trial court=3Ds judgment=20 that conflicts with a constitutional provision is void. =20

Generally,=20 as long as the court entering a judgment has jurisdiction of the = parties=20 and the subject matter and does not act outside its capacity as a = court,=20 its judgment is not void. Reiss v. Reiss, 118 S.W.3d 439, = 443 (Tex.=20 2003).  Errors other than lack of jurisdiction, such as a=20 court=3Ds action=20 contrary to a statute, constitutional provision, or rule of civil = or=20 appellate procedure render the judgment merely voidable or = erroneous, so=20 that it may be corrected through the ordinary appellate process or = other=20 proper proceedings.  See Id., 118 S.W.3d at 443; = Mapco,=20 Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990); Cook v.=20 Cameron, 733 S.W.2d 137, 140 (Tex. 1987).  Unless the = judgment is=20 void because the court lacked jurisdictional power to render it, a = judgment that has become final can only be set aside by appeal or = bill of=20 review.  McEwen v. Harrison, 345 S.W.2d 706, 710 (Tex. = 1961);=20 see also Nguyen v. Intertex, Inc., 93 S.W.3d 288,=20 294B96 (Tex.=20 App.CHouston=20 [14th Dist.] 2002, no pet.) (holding appellant=3Ds claims=20 that earlier judgment was void because the pleadings were = defective and he=20 was not properly served were not jurisdictional challenges and = therefore=20 judgment had to be attacked by bill of review); Shoberg v. = Shoberg,=20 830 S.W.2d 149, 152 (Tex. App.CHouston=20 [14th Dist.] 1992, no pet.) (rejecting appellant=3Ds=20 contention that lien in prior judgment was void because it = violated the=20 Texas Constitution and holding that a defense to a judgment debt = on the=20 ground that the prior judgment is erroneous is an impermissible = collateral=20 attack).

Here,=20 Summers makes no argument that the trial court which signed the = judgment=20 in the 2004 declaratory judgment action lacked jurisdiction over = the=20 parties or the subject matter, or was acting without authority as = a=20 court.  Moreover, our review of the record reveals nothing = that would=20 indicate any lack of jurisdiction.  Summers did not appeal = this=20 judgment.  Therefore, Summers may not attack the judgment as = void in=20 the present case.

We=20 overrule Summers=3Ds second=20 issue.

III.     =20 Ameriquest Was Entitled to Summary = Judgment

Ameriquest=3Ds summary=20 judgment evidence demonstrated that Summers was obligated on the = note and=20 lien with Ameriquest, she was in default, and she did not cure the = default=20 after Ameriquest notified her of the default.  Summers did = not=20 contest that she was in default on the loan.  Thus, = Ameriquest was=20 entitled to judgment establishing the balance due under the note = and=20 lien.  Ameriquest also demonstrated that it was entitled to = judicial=20 foreclosure and an order permitting it to sell the property as = provided in=20 the home equity loan documents.

We=20 overrule Summers=3Ds issues=20 and affirm the trial court=3Ds=20 judgment.

 

 

 

/s/     =20 Wanda McKee Fowler

Justice

 

 

 

 

Judgment rendered = and=20 Memorandum Opinion filed January 15, 2008.

Panel=20 consists of Justices Yates, Fowler, and Guzman.


[1]  The documents in the record from = the 2004=20 action are styled Ameriquest Mortgage Company v. Kelly Lee = Summers,=20 Cause No. 2004-32742, in the 113th District Court of Harris = County,=20 Texas.

[2]  In the statement of facts in her = appellate=20 brief and elsewhere, Summers makes various claims concerning the = reasons=20 for the second home equity loan, including alleged Alast minute demands for repairs to the=20 house,@ but offers no citations to the record = to=20 substantiate them.

[3]  The settlement and release = agreement is not=20 included in the summary judgment record.

[4]  Unless otherwise indicated, = citations to=20 provisions of the Texas Constitution are to the then-existing = provisions=20 applicable to the parties.

[5]  The evidence considered by the = trial court=20 in the 2004 declaratory judgment action apparently included=20 Ameriquest=3Ds cure letter of April 2, 2004, in which = it sought=20 to respond to Summers=3Ds complaints by crediting her loan with = $1,000 and=20 offering her the right to refinance the loan under the same terms = as the=20 original loan, modified as necessary to comply with section = 50(a)(6) of=20 the Texas Constitution.  However, Ameriquest=3Ds motion for summary judgment in the = present case=20 did not include the exhibits attached to its motion for summary = judgment=20 in the 2004 action.  Nevertheless, Summers does not dispute = that=20 Ameriquest=3Ds motion for summary judgment included = this letter=20 and, in fact, attaches a copy of the letter to her appellate brief = and=20 characterizes it as Ameriquest=3Ds Aactual settlement offer.@  This letter is marked = AExhibit E,@ consistent with the AExhibit E@ referenced in Ameriquest=3Ds motion for summary judgment as the = cure=20 letter.  Thus, the trial court could have concluded that=20 Ameriquest=3Ds offer to cure validated the = lien.  See=20 Doody, 49 S.W.3d at 346 (stating that section=20 50(a)(6)(Q)(x)=3Ds cure provision provides a means for a = lender to=20 correct mistakes within a reasonable time in order to validate a = lien=20 securing a section 50(a)(6) extension of credit). =

[6]  This amendment does not apply to = the=20 contracts between Ameriquest and Summers, which were executed = before the=20 effective date of the amendment.  See Fix v. Flagstar = Bank,=20 FSB, ___ S.W.3d ___, No. 2-07-030-CV, 2007 WL 4126919, at=20 *5B6 (Tex. App.CFort Worth Dec. 13, 2007, n.p.h.) = (holding 2003=20 amendments to notice provision of article XVI, section = 50(a)(6)(Q)(x) of=20 Texas Constitution did not apply retroactively).

[7]  In a separate = section of her=20 brief, Summers also contends that the trial court=3Ds ruling fails to = articulate=20 an Aexcuse@ for the = lien=3Ds validity, and so = fails to=20 Apreserve, protect, = and defend=20 the Constitution.@ Summers further posits that the trial=20 court=3Ds ruling conflicts with its oath of = office by=20 making Aan unsubstantiated ruling that is at = odds with the=20 clear wording of the constitution.@  These arguments appear to be = directed at=20 the trial court=3Ds judgment being appealed.  = However, to the=20 extent it is necessary to address these arguments, we conclude = they are=20 meritless because we have determined that the trial court did not = err in=20 granting Ameriquest=3Ds motion for summary=20 = judgment.

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