                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 ROSA SERRANO,                                  §
                                                                No. 08-07-00042-CV
                   Appellant,                   §
                                                                   Appeal from the
 v.                                             §
                                                             34th Judicial District Court
                                                §
 FIRST PRESTONS MANAGEMENT                                    of El Paso County, Texas
 CORPORATION,                                   §
                                                                  (TC# 2006-5577)
                   Appellee.                    §


                                          OPINION

       This is one of a series of lawsuits filed by Ms. Rosa Serrano regarding the repossession

and foreclosure of her family home.1 Ms. Serrano filed this lawsuit on February 5, 2004, alleging

First Prestons Management Corporation (“First Prestons”) was involved in the wrongful

foreclosure of the Serrano home as the loan servicing agent for Union Planter’s Bank. Union

Planter’s Bank held the mortgage on the property while it was owned by the Serrano family.

       First Prestons filed its first motion for summary judgment on June 20, 2006. The trial

court granted First Prestons’s motion on July 26, 2006. On September 5, 2006, Ms. Serrano

amended her petition to include a cause of action for an alleged violation of the Federal Single

Family Mortgage Foreclosure Act. In response to this new cause of action, First Prestons filed its

second motion for summary judgment, and a motion to sever the case from Ms. Serrano’s claims



       1
         For a more detailed explanation of the facts surrounding the foreclosure, and
Ms. Serrano’s prior lawsuits see Serrano v. Union Planter’s Bank, 162 S.W.3d 576 (Tex.App.--
El Paso 2004, pet. denied).
against the other defendants.

       On November 30, 2006, the trial court entered orders severing First Prestons’s case from

Ms. Serrano’s claims against the other defendants, and granting First Prestons’s second motion

for summary judgment.

       Ms. Serrano seeks to raise four issues for review. Issue One states: “Where lien was

extinguished by confirmation plan of Julian Serrano’s bankruptcy, did Union Planters possess an

empty legal right to foreclose?” Issue Two provides: “Where no-evidence summary judgment is

incorrectly granted when a controverted fact at issue remains, does trial court abused its

discretion where legal sufficiency exists to deny summary judgment?” Issue Three states: “Did

subsequent conveyance by Prestons raise a tort action when Union Planters did not hold a valid

lien to enforce and empower trustee to sell real property?” Issue Four provides: “Res judicata

predicated on the first court that held jurisdiction over controversy, therefrom any conveyance is

void to claim real title to real property, did bankruptcy court hold jurisdiction to extinguish lien?”

We will construe these issues as challenges to the summary judgment granted below.

       An appellate court reviews summary judgment de novo. Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The scope of review for a traditional summary

judgment is well established. See TEX .R.CIV .P. 166a(c); Nixon v. Prop. Mgmt., Inc., 690 S.W.2d

546, 548-49 (Tex. 1985). A defendant is entitled to summary judgment on an affirmative

defense when the party conclusively establishes each element of the defense asserted. See

Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996). When the material facts are

undisputed, the nonmovant may defeat a motion for summary judgment by establishing that the

movant’s legal position is unsound. Hansen v. Our Rederrmer Lutheran Church, 938 S.W.2d


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85, 90 (Tex.App.--Dallas 1996, writ denied).

        One of the grounds asserted by First Prestons in its traditional motion for summary

judgment was that Ms. Serrano’s claims were barred by the doctrine of res judicata. Res

judicata is an affirmative defense. TEX .R.CIV .P. 94. The party claiming the defense must prove:

(1) a prior final judgment on the merits by a court of competent jurisdiction; (2) the identify of

the parties or those in privy with them; and (3) a second action based on the same claims as were,

or could have been raised in the first action. In re K.S., 76 S.W.3d 36, 43 (Tex.App.--Amarillo

2002, no pet.). Res judicata precludes both re-litigation of claims that have been fully

adjudicated, as subsequent litigation of claims which arise out of the subject matter as the prior

litigation, and therefore could have been brought in the prior suit. See Amstadt v. U.S. Brass

Corp., 919 S.W.2d 644, 652 (Tex. 1996); McFarland v. Bridges, 104 S.W.3d 906, 909

(Tex.App.-- El Paso 2003, no pet.).

        In its summary judgment motion, First Prestons established that Ms. Serrano’s claims

regarding the foreclosure and sale of her father’s house were litigated to a final judgment in

cause number 98-2327 by the 34th District Court of El Paso County on January 31, 2003. This

Court affirmed the trial court’s judgment on appeal in 2006. First Prestons established that the

parties involved in the prior litigation were the same parties, or were related to the same parties,

before the court in this suit. Finally, First Prestons has established that as in cause number 98-

2327, the central claim underlying this lawsuit is that the Serrano family has been erroneously

deprived of their real property. All of the damages claimed in both suits relate back to

Ms. Serrano’s allegation that Union Planter’s and its agents illegally foreclosed on her father’s

home.


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       First Prestons established all three elements of its defense. Ms. Serrano has not offered

evidence or argument to controvert First Prestons’s proof. Ms. Serrano’s arguments on appeal,

as well as to the trial court, consist simply of her theories for recovery against the numerous

defendants she has sued. Accordingly, we overrule Issues One through Four.

       Having overruled all of Appellants issues, we affirm the trial court’s judgment.



June 3, 2009
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.)
Barajas, C.J. (Ret.)(Sitting by Assignment)




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