

Opinion issued October 27, 2011.

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-01026-CV
———————————
Ralph D. Huston and Christina Huston, Appellants
V.
U.S. Bank
National Association, Appellee

 

 
On Appeal from the 151st District Court
Harris County, Texas

Trial Court Case No. 2010-18933
 

 
OPINION
          This
appeal arises from the dismissal of a counterclaim filed by Ralph and Christina
Huston in the underlying proceeding brought by U.S. Bank National Association
for expedited, non-judicial foreclosure of a home equity loan.[1]  In three issues, the Hustons contend (1) the district
court lacked authority to dismiss their counterclaim absent a request from U.S.
Bank to do so, (2) they were entitled to notice of and a hearing on the
dismissal of their counterclaim, and (3) their counterclaim was compulsory.  Because we hold that a counterclaim seeking
affirmative relief cannot properly be asserted in an expedited, non-judicial foreclosure
proceeding, like the one initiated by U.S. Bank, we affirm the district court’s
dismissal order.  
Background
In the
151st District Court, U.S. Bank applied under Texas Rule of Civil Procedure 736
for an order allowing it to proceed against the Hustons with an expedited,
non-judicial foreclosure of their home equity loan.  The Hustons contested U.S. Bank’s application
by filing an “original answer” asserting various defenses and a plea for abatement
and dismissal of the foreclosure proceeding pursuant to rule 736(10).[2]  The Hustons also filed a  separate pleading, entitled “Counterclaim for
Declaratory Relief Contesting Right to Foreclosure,” alleging that U.S. Bank did
not have any right to foreclose because it did not have a valid assignment of
the loan, the extension of credit violated constitutional restrictions, and Christina
did not sign the loan agreement.  They designated
their counterclaim for declaratory relief a “Level 3” suit for purposes of discovery,
requested a jury trial, and sought the recovery of attorneys’ fees.  
Almost
one month after they contested the rule 736 proceeding, the Hustons filed an
original petition for declaratory judgment with the 80th District Court, seeking
the same relief against U.S. Bank. 
Shortly after receiving notice of the separately-filed lawsuit, the 151st
District Court dismissed the entire foreclosure proceeding without prejudice,
including U.S. Bank’s application and the Hustons’ counterclaim for declaratory
relief.  The dismissal order, deemed
“final and appealable” by the district court, stated that it was pursuant to
the Hustons’ plea in abatement and their counterclaim.  
The
Hustons challenged the dismissal of their counterclaim by motion for new trial,
which the district court denied by written order.  
Standards for Construing Rules of Procedure
This
appeal requires us to construe Texas Rule of Civil Procedure 736.  Well-settled principles guide us:  the same rules of construction apply to rules
of procedure and to statutes.  See BASF Fina Petrochemicals Ltd. P’ship v.
H.B. Zachry Co., 168 S.W.3d 867, 871 (Tex. App.—Houston [1st Dist.] 2004,
pet. denied).  Rule 736 must be read as a
whole to ascertain its intent.  See Tex. Bldg. Owners & Managers Ass’n,
Inc. v. Pub. Util. Comm’n of Tex., 110 S.W.3d 524, 531 (Tex. App—Austin
2003, pet. denied) (citing State v. Pub.
Util. Comm’n, 883 S.W.2d 190, 196 (Tex. 1984)).  “When a rule of procedure is clear,
unambiguous, and specific, we construe its language according to its literal
meaning.”  Bradt v. Sebek, 14 S.W.3d 756, 762 (Tex. App.—Houston [1st Dist.]
2000, pet. denied).  The Code
Construction Act applies and, among other things, permits our consideration of
the object sought to be attained, the circumstances under which the rule was enacted,
and the consequences of a particular construction.  See Tex. Gov’t Code Ann. §§ 311.002(a)(4),
311.023(1)-(3), (5) (West 2005); see also BASF, 168 S.W.3d at 871.  With regard to how courts should interpret
and apply the rules, the rules themselves instruct:
The
proper objective of rules of civil procedure is to obtain a just, fair,
equitable and impartial adjudication of the rights of litigants under
established principles of substantive law. 
To the end that this objective may be attained with as great expedition
and dispatch and at the least expense to both the litigants and to the state as
may be practicable, these rules shall be given a liberal construction.
 
Tex. R. Civ. P. 1.
Counterclaims
in Rule 736 Proceedings
 
As a threshold matter, we consider whether the order dismissing the
Hustons’ counterclaim is appealable. 
U.S. Bank argues that we lack jurisdiction over the Hustons’ appeal
because the district court disposed of their counterclaim and the foreclosure
proceeding in the same order, and rule 736(8) prohibits appeals from any order
“disposing of a [r]ule 736 proceeding.” 
We do not read rule 736(8) so broadly. 
By its plain language, the rule prohibits appeals only from “[t]he
granting or denial of [a rule 736] application.”  See Tex. R. Civ. P. 736(8)(A).  The rule makes no mention of any other ruling
by the district court, such as the dismissal of a borrower’s counterclaim
contesting the lender’s right to foreclose. 
See id.  Given our directive to give effect to
“clear, unambiguous, and specific” language, we will not read a prohibition against
appeals from these types of orders into the rule when one is not expressly
stated.  See Bradt, 14 S.W.3d at 762. 
The district court’s dismissal order disposed of all parties and issues
and stated that it was “final and appealable.” 
Consequently, we will not dismiss the Hustons’ appeal; instead, we
proceed to the merits of their contentions. 
       
This case presents a matter of first impression as to the propriety of
counterclaims in rule 736 foreclosure proceedings.  Each of the Hustons’ three appellate issues
asserts a procedural reason why the district court erred in dismissing their
counterclaim—namely because (1) U.S. Bank failed to request the dismissal of
the counterclaim, (2) they were entitled to notice of and a hearing on the
dismissal, and (3) the counterclaim was compulsory.  The assumption underlying each of these
assertions is that a rule 736 foreclosure proceeding functions as an ordinary
lawsuit.  That assumption, however, is
incorrect.  
The Texas Supreme Court promulgated the “Procedures Related
to Home Equity Loan Foreclosure” in response to the Legislature’s enactment of
section 51.002 of the Property Code, allowing for non-judicial
foreclosures.  See Tex. Prop. Code Ann. §
51.002 (West 2007); see also Tex. R. Civ. P. 735, 736.  Under these procedures, a party seeking to
foreclose a home equity loan has three options: 
file “(1) a suit seeking judicial foreclosure; (2) a suit or
counterclaim seeking a final judgment which includes an order allowing
foreclosure under the security instrument and Tex.
Prop. Code § 51.002; or (3) an application under Rule 736 for an order
allowing foreclosure.”  Tex. R. Civ. P. 735.  U.S. Bank exercised its third option by
filing an application for an order allowing foreclosure under rule 736.  
Rule 736 appears in that part of the Rules of Civil Procedure
relating to “special proceedings.”  See Tex.
R. Civ. P. 735-813. 
When read as a whole, rule 736—titled “Expedited Foreclosure Proceeding”—does
not contemplate an ordinary lawsuit.  As
its name suggests, Rule 736 provides a faster, more streamlined alternative to judicial
foreclosure.  A lender initiates the
“proceeding” by filing an “application,” not an original petition, and the
borrower may file a “response,” not an original answer.  Compare
Tex. R. Civ. P. 736(1)
(describing proceeding and contents of application), with Tex. R. Civ. P.
45(a) (requiring a petition and answer in each lawsuit), and Tex. R. Civ. P. 47 (describing contents
of a petition or counterclaim).  
Only one issue may be decided under rule 736:  “the right of the applicant to obtain an
order to proceed with foreclosure under the security instrument and Tex. Prop. Code § 51.002.”  Tex.
R. Civ. P. 736(7); see Tex. Prop. Code Ann. § 51.002.  The rule contemplates a single hearing at
which the district court must determine whether the applicant has satisfied its
burden to prove “the grounds for the granting of the order sought in the
application”; there is no provision for any other determination to be made by a
factfinder.  See Tex. R. Civ. P.
736(6).  The application must be denied
if the respondent establishes that the applicant has not satisfied any element
under the rule.  See id.  The district court’s determination of whether to
grant or deny the application is not intended to be a binding adjudication of
the merits of any disputes between a lender and a borrower.  Indeed, the rule expressly states that the
district court’s determination is without any preclusive effect.  Tex.
R. Civ. P. 736(9) (“No order or determination of fact or law under Rule
736 shall be res judicata or constitute collateral stopped or estoppel by
judgment in any other proceeding or suit.”). 
The limited nature of a rule 736 foreclosure proceeding is further
underscored by the rule’s prohibition against discovery.  Tex. R. Civ. P. 736(6) (“No discovery of any kind
shall be permitted in a proceeding under Rule 736”).  
Rule 736
does not expressly address whether a respondent may file a counterclaim seeking
affirmative relief from the applicant. 
Given the special nature of proceedings under the rule, however, we
conclude that a counterclaim that attempts to address the underlying merits of
the applicant’s conduct—and for which discovery would be necessary—is incongruent
with the purposes of a rule 736 proceeding.  The rules on which the Hustons rely to
challenge the district court’s dismissal order govern jurisdictional motions and
pleas, notice requirements, and compulsory counterclaims in ordinary lawsuits.  The Hustons have not offered any authority or
persuasive reason why those rules apply in a special proceeding under rule
736.  Consequently, we decline to hold
that the rules do apply.  Instead, we conclude
that the Hustons could not properly assert their counterclaim for declaratory
relief as part of U.S. Bank’s rule 736 foreclosure proceeding, and therefore
the district court did not err in dismissing the counterclaim together with the
rule 736 foreclosure proceeding.  
Our construction of rule 736 does not violate the objective “to obtain a just, fair, equitable and impartial adjudication of
the rights of litigants” by leaving the Hustons without any recourse at law or
in equity.  See Tex. R. Civ. P. 1.
 Their counterclaim for declaratory
relief was dismissed as part of the Rule 736 proceeding after they filed a
separate lawsuit contesting U.S. Bank’s right to foreclose.   See Tex. R. Civ. P. 736(10).  The Hustons may pursue their claim against
U.S. Bank in that lawsuit.
We
overrule the Hustsons’ first, second, and third issues.
Conclusion
          Having concluded that the district court did not err in
dismissing the Hustons’ counterclaim, we affirm the dismissal order.
 
 
                                                                   Harvey
Brown
                                                                   Justice

 
Panel
consists of Justices Jennings, Sharp, and Brown.
 




[1]           See
Tex. R. Civ. P. 736.
 


[2]
          A proceeding under rule 736 must
be “automatically abated if, before the signing of the order, notice is filed
with the clerk of the court in which the application is pending that respondent
has filed a petition contesting the right to foreclose in a district court in
the county where the application is pending. 
A proceeding that has been abated shall be dismissed.”  Tex.
R. Civ. P. 736(10).  


