                           NUMBER 13-13-00708-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

                        IN RE CAROLYN CASTERLINE


                      On Petition for Writ of Mandamus.


                                    OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
                     Opinion by Justice Longoria

      Relator, Carolyn Casterline, filed a petition for writ of mandamus in the above

cause on December 20, 2013 contending that the trial court abused its discretion by

granting a motion to reconsider and reopen an expedited foreclosure proceeding after it

had already denied the application for expedited foreclosure.     See TEX. R. CIV. P.
736.8(c). 1 Relator requests that we direct the trial court to set aside its order granting

rehearing. We conditionally grant the writ of mandamus.

                                          I. BACKGROUND

       Relator owned real property located at 103 Bay Court, Aransas Pass, Texas. On

or about June 14, 2007, relator obtained a home equity loan from OneWest Bank, FSB

(“OneWest”) and granted a deed of trust to the property as collateral. Relator thereafter

stopped making payments and OneWest began foreclosure attempts. Relator brought

suit against OneWest in the United States Court for the Southern District of Texas

alleging, inter alia, that OneWest induced her to enter into a “predatory loan agreement”

and committed fraud. See generally Casterline v. Indy Mac/One West, 761 F. Supp. 2d

483, 486 (S.D. Tex. 2011). The federal district court granted summary judgment in

favor of OneWest and dismissed relator’s suit. See id.

       OneWest reinitiated foreclosure proceedings on the property. Relator brought

suit against OneWest again, this time in state court. OneWest removed the suit to

federal district court, where OneWest once again obtained summary judgment in its

favor. See generally Casterline v. OneWest Bank, F.S.B., No. 13-40067, 2013 WL

3868011 (5th Cir. Jul. 03, 2013); see also Casterline v. OneWest Bank, F.S.B., No.

2:12-CV-00150, 2012 WL 6630024 (S.D. Tex. Dec. 19, 2012); Casterline v. OneWest

Bank, F.S.B., 2012 WL 5465982 (S.D. Tex. Oct. 10, 2012).

       OneWest once again initiated foreclosure proceedings by filing an application for

an expedited home equity foreclosure proceeding under Texas Rule of Civil Procedure

736. See generally TEX. R. CIV. P. 736. Counsel for OneWest scheduled the hearing

       1
           This original proceeding arises from cause number S-13-5428-CV-B in the 156th Judicial
District Court of San Patricio County, Texas, and the respondent is the Honorable Joel B. Johnson, the
presiding judge of that court.

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on the application for Monday, October 14, 2013 at 1:30 p.m., and notified relator’s

counsel of the setting. According to OneWest’s response to the petition for writ of

mandamus:

        Days later, the trial court apparently sent notice of the hearing to the
        parties. This notice stated that the hearing was set for 9:00 a.m. rather
        than 1:30 p.m. One West’s foreclosure counsel apparently did not receive
        this notice from the trial court, and thus did not recalendar the new time
        set for the hearing.

(Record citations omitted). The mandamus record includes a “Notice of Setting” issued

by the court administrator, dated August 19, 2013, setting the foreclosure hearing for

9:00 a.m. The notice states that copies of the notice were mailed or delivered to the

district clerk and counsel for the parties.

        The hearing on the expedited application for foreclosure proceeded on October

14, 2013 at 9:00 a.m. as indicated in the trial court’s notice. At the 9:00 a.m. hearing,

the trial court denied OneWest’s application for home equity foreclosure and dismissed

the case with prejudice. Counsel for OneWest did not appear until 1:30 p.m., when

counsel learned that the hearing on the application for expedited foreclosure had

already occurred.

        On October 17, 2013, counsel for OneWest filed a “Motion to Reconsider and

Reopen Case” explaining that the failure to appear at the hearing was due to the

foregoing scheduling issue. On October 18, 2013, the trial court granted OneWest’s

motion to reconsider and reopen the case by written order stating that the case “shall be

reopened on the Court’s docket and set for a final hearing.” On October 24, 2013, the

trial court reset the hearing on the home equity foreclosure application for November 25,

2013.



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      On November 20, 2013, relator filed a “Response to [OneWest’s] Motion to

Reconsider and Reopen Case and Motion to Quash Setting of Final Hearing.” Through

this pleading, realtor contended that OneWest’s motion to reconsider and reopen was

effectively a motion for new trial and was thus was prohibited by Rule 736.8(c). See id.

R. 736.8(c). Relator requested that the trial court deny OneWest’s motion and vacate

the order resetting the final hearing of the case for November 25, 2013.

      The trial court proceeded with the hearing on November 25, 2013 and granted

OneWest’s application for foreclosure. In response to relator’s contention that the rules

of civil procedure prohibited it from reconsidering its original denial of the expedited

foreclosure proceeding, the trial court stated that it could reinstate the matter “on my

own grounds on my own motion without a hearing within 30 days” and that it had the

plenary power to do so. See id. R. 329b(d) (providing that the trial court has plenary

power to vacate, modify, correct, or reform a judgment within thirty days after the

judgment is signed).

      This original proceeding ensued on December 20, 2013. This Court granted

relator’s motion for emergency temporary relief and stayed the trial court’s order of

October 18, 2013 granting reconsideration, and all foreclosure proceedings, including

but not limited to the foreclosure sale set for January 7, 2014, pending further order of

this Court. The Court requested that OneWest or any other persons or entities whose

interest would be directly affected by the relief sought to file a response to the petition

for writ of mandamus. OneWest’s response and its accompanying record have now

been filed. By two issues, relator contends that (1) the trial court abused its discretion




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by reopening the foreclosure proceeding after it had denied the application and (2) she

lacks an appellate remedy.

                                 II. STANDARD OF REVIEW

       Mandamus relief is proper to correct a clear abuse of discretion when there is no

adequate remedy by appeal. In re Frank Motor Co., 361 S.W.3d 628, 630–31 (Tex.

2012) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36

(Tex. 2004) (orig. proceeding). “A trial court has no discretion in applying the law to the

facts or determining what the law is.” In re Prudential Ins. Co. of Am., 148 S.W.3d at

135. We assess the adequacy of an appellate remedy by balancing the benefits of

mandamus review against the detriments. In re State, 355 S.W.3d 611, 614–15 (Tex.

2011) (orig. proceeding); In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008)

(orig. proceeding).   In performing this balancing, we look at a number of factors,

including whether mandamus review “will spare litigants and the public ‘the time and

money    utterly   wasted    enduring   eventual     reversal   of   improperly   conducted

proceedings.’” In re State, 355 S.W.3d at 615 (quoting In re Prudential Ins. Co. of Am.,

148 S.W.3d at 136).

                                        III. ANALYSIS

       Under article XVI, section 50(a)(6)(D) of the Texas Constitution, the homestead

of a family or of a single adult person is protected from forced sale for the payment of all

debts except, for instance, as when an extension of credit is secured by a lien that may

be foreclosed upon only by a court order. TEX. CONST. art. XVI, § 50(a)(6)(D); see In re

Dominguez, No. 08-12-00317-CV, 2013 WL 5561640, at **3–4 (Tex. App.—El Paso

Oct. 9, 2013, orig. proceeding) (op.). Under Texas Rule of Civil Procedure 735.1, a



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party seeking to foreclose a lien for, inter alia, a home equity loan, reverse mortgage, or

home equity line of credit created under the Texas Constitution may file an application

for an expedited order allowing the foreclosure of a lien under Rule 736. See TEX. R.

CIV. P. 735.1; see also TEX. CONST. art. XVI, §§ 50(a)(6), 50(k), 50(t).

       Rule 736, as referenced in Rule 735, sets forth the procedures and requirements

for seeking an expedited foreclosure. See TEX. R. CIV. P. 735, 736. A party may seek a

court order permitting the foreclosure of a lien by filing a verified application in the

district court in any county where all or any part of the real property encumbered by the

lien is located, or in a probate court with jurisdiction over proceedings involving the

property. See TEX. R. CIV. P. 736.1(a). The only issue to be determined in a Rule 736

proceeding is the right of the applicant to obtain an order to proceed with foreclosure

under the “applicable law and the terms of the loan agreement, contract, or lien sought

to be foreclosed.” R. 735.2. A respondent may file a response to the application, but

the response may not raise any independent claims for relief, and no discovery is

permitted. See id. R. 736.4, 736.5(d). The trial court must not conduct a hearing on the

application unless the respondent files a response, but must hold a hearing “after

reasonable notice to the parties” if a response is filed. See id. R. 736.6. At a hearing,

the petitioner has the burden to prove the grounds for granting the order sought in the

application. See id. If no response is filed, the petitioner may obtain a default order.

See id. R. 736.7.

       A Rule 736 proceeding may be automatically abated if, before the trial court

issues its ruling, the respondent files a notice with the clerk of the court in which the

expedited lien foreclosure application is pending that the respondent has filed a petition



                                                6
contesting the right to foreclose in a district court in the county where the application is

pending. Id. R. 736(10); see also Huston v. U.S. Bank Nat'l Ass’n, 359 S.W.3d 679, 683

(Tex. App.—Houston [1st Dist.] 2011, no pet.) (holding that a mortgagor is not permitted

to file a counterclaim to a Rule 736 expedited foreclosure proceeding and may only

contest the right to foreclose in a separately-filed suit). In such a case, the rule provides

that “[a] proceeding that has been abated shall be dismissed.” TEX. R. CIV. P. 736(10).

       The court must issue an order granting the application if the petitioner

establishes the basis for the foreclosure; otherwise, the court must deny the application.

See id. R. 736.8(a). “An order granting or denying the application is not subject to a

motion for rehearing, new trial, bill of review, or appeal.” Id. R. 736.8(c). “Any challenge

to a Rule 736 order must be made in a suit filed in a separate, independent, original

proceeding in a court of competent jurisdiction.” Id. An order issued pursuant to Rule

736 “is without prejudice and has no res judicata, collateral estoppel, estoppel by

judgment, or other effect in any other judicial proceeding.” Id. R. 736.9. After an order

is obtained, a person may proceed with the foreclosure process. Id.

       At issue in this original proceeding is whether the trial court abused its discretion

in granting OneWest’s motion to reconsider and reopen when Rule 736.8(c) expressly

provides that orders issued under Rule 736 are “not subject to a motion for rehearing,

new trial, bill of review, or appeal.” Id. R. 736.8(c). In its response to the petition for writ

of mandamus, OneWest argues that relator’s petition “shows that she will continue to

clutter the court system with meritless complaints and appeals in order to postpone the

inevitable foreclosure of her home for as long as possible.” OneWest contends that

nothing in Rule 736.8(c) restricts the trial court’s exercise of its plenary power to revise



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its own orders, and that the trial court “with full knowledge of Relator’s litigious history,”

should be able to determine the foreclosure application based on the merits rather than

have it “dismissed due to a scheduling miscommunication.” OneWest further contends,

without evidentiary support or citation to the record, that relator suffered no prejudice as

a result of the trial court’s exercise of its discretion because the end result—the order

permitting foreclosure—was “inevitable.”

       This original proceeding requires us to construe Texas Rule of Civil Procedure

736. When we construe rules of procedure, we apply the same rules of construction

that govern the interpretation of statutes. Ford Motor Co. v. Garcia, 363 S.W.3d 573,

579 (Tex. 2012); In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 437 (Tex. 2007)

(orig. proceeding); In re CompleteRx, Ltd., 366 S.W.3d 318, 323 (Tex. App.—Tyler

2012, orig. proceeding); Huston v. U.S. Bank Nat’l Ass'n, 359 S.W.3d 679, 681 (Tex.

App.—Houston [1st Dist.] 2011, no pet.). The construction of procedural rules is a legal

question and is subject to de novo review. See In re Christus Spohn Hosp. Kleberg,

222 S.W.3d at 437; State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002) (stating that

statutory construction is a legal question and therefore subject to de novo review); see

also In re CompleteRx, Ltd., 366 S.W.3d at 323.           Thus, we first look to the plain

language of the rule and construe it according to its plain or literal meaning. Ford Motor

Co., 363 S.W.3d at 579; In re Christus Spohn Hosp. Kleberg, 222 S.W.3d at 437;

Assignees of Best Buy v. Combs, 395 S.W.3d 847, 864–65 (Tex. App.—Austin 2013,

pet. filed). We read Rule 736 as a whole to ascertain its intent. Huston, 359 S.W.3d at

681; 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). The Texas Code Construction



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Act applies to the construction of procedural rules 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 2013); see also Huston, 359

S.W.3d at 681; 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). We liberally construe the

rules of civil procedure to obtain “just, fair, equitable and impartial adjudication of the

rights of litigants under established principles of substantive law” with “as great

expedition and dispatch and at the least expense to both the litigants and to the state as

may be practicable.” See TEX. R. CIV. P. 1; Huston, 359 S.W.3d at 681.

       In the instant case, Rule 736.8(c) expressly provides that:

       An order granting or denying the application is not subject to a motion for
       rehearing, new trial, bill of review, or appeal. Any challenge to a Rule 736
       order must be made in a suit filed in a separate, independent, original
       proceeding in a court of competent jurisdiction.

TEX. R. CIV. P. 736.8(a). The predecessor to Rule 736.8(a), former Rule 736.8(A),

stated that “[t]he granting or denial of the application is not an appealable order.” See

Grant–Brooks v. FV–1, Inc., 176 S.W.3d 933, 933 (Tex. App.—Dallas 2005, pet.

denied). The rule was modified and expanded into its present form as quoted above in

2012. We note that courts routinely dismissed appeals brought under the predecessor

rule. See, e.g., id. at 933; see also King v. Deutsche Bank Nat’l Trust Co., No. 14-12-

00621-CV, 2012 WL 4165589, at *1 (Tex. App.—Houston [14th Dist.] Sept. 20, 2012, no

pet.) (per curiam mem. op.); Johnson v. Residential Funding Real Estate Holdings, LLC,

No. 01-10-00287-CV, 2011 WL 2418516, at *1 (Tex. App.—Houston [1st Dist.] May 26,

2011, no pet.) (mem. op.); Barriere v. Am. Serv. Mortg. Co., No. 14-10-00617-CV, 2010

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WL 3504755, at *1 (Tex. App.—Houston [14th Dist.] Sept. 9, 2010, no pet.) (mem. op.);

Kibble v. CitiFinancial, Inc., No. 05-08-00359-CV, 2009 WL 456738, at *1 (Tex. App.—

Dallas Feb. 25, 2009, no pet.) (mem. op.); McLane v. Washington Mut. Bank, No. 2-07-

00460-CV, 2008 WL 2780665, at *1 (Tex. App.—Fort Worth July 17, 2008, no pet.) (per

curiam mem. op.); Cummins v. WM Specialty LLC, No. 2-07-00209-CV, 2007 WL

2330934, at *1 (Tex. App.—Fort Worth Aug. 16, 2007, no pet.) (per curiam mem. op.);

Kelso v. Cit Group/Consumer Fin. Inc., No. 01-05-00671-CV, 2005 WL 3118182, at *1

(Tex. App.—Houston [1st Dist.] Nov. 23, 2005, no pet.) (mem. op.).

      OneWest asserts that the trial court did not abuse its discretion in reconsidering

its order on the application for expedited foreclosure because it did so within its period

of plenary power and nothing in Rule 736.8(c) prohibits such action. However, we

express no opinion regarding whether or not a trial court can sua sponte change its

order under Rule 736.8(c) within its period of plenary power because that issue is not

presented by this case. Rule 736.8(c) expressly prohibits motions for rehearing, new

trial, bill of review, or appeals, and in this case, OneWest filed a “Motion to Reconsider

and Reopen” which the trial court expressly granted by order. We determine the nature

of a motion by its substance, not its title or caption. In re Brookshire Grocery Co., 250

S.W.3d 66, 72 (Tex. 2008) (orig. proceeding); Surgitek, Bristol-Myers Corp. v. Abel, 997

S.W.2d 598, 601 (Tex. 1999); Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785,

795 (Tex. App.—Houston [1st Dist.] 2012, no pet.); Rush v. Barrios, 56 S.W.3d 88, 93

(Tex. App.—Houston [14th Dist.] 2001, pet. denied). OneWest’s “Motion to Reconsider

and Reopen” requested the trial court to set aside its previous order, reopen the case,

and “set the matter for a final hearing,” thus, the motion was in substance a motion for



                                               10
rehearing or new trial which is prohibited by Rule 736.8(c).        See In re Brookshire

Grocery Co., 250 S.W.3d at 72; Surgitek, Bristol-Myers Corp., 997 S.W.2d at 601.

Accordingly, based on the express language of Rule 736, the trial court abused its

discretion in granting OneWest’s motion for reconsideration.         See TEX. R. CIV. P.

736.8(c). Moreover, given that Rule 736.8(c) expressly prohibits appeals from orders

issued granting or denying the application for expedited foreclosure and requires

challenges to be made by separate, independent proceedings, relator lacks an

adequate remedy by appeal. See id.; In re Dominguez, 2013 WL 5561640, at **3–4.

                                     IV. CONCLUSION

        The trial court abused its discretion in granting OneWest’s motion to reconsider,

vacating its previous order denying OneWest’s application, and granting OneWest’s

subsequent application for expedited foreclosure, and relator does not have an

adequate remedy by appeal. Accordingly, we lift the stay previously imposed by this

Court. See TEX. R. APP. P. 52.10(b) ("Unless vacated or modified, an order granting

temporary relief is effective until the case is finally decided."). We conditionally grant

mandamus relief directing the trial court to vacate its October 18, 2013 and November

25, 2013 orders and reinstate its original order of October 14, 2013 denying OneWest’s

application. We are confident the trial court will act promptly in accord with this opinion.

The writ of mandamus will issue only if the trial court fails to act within a reasonable

time.

                                                        NORA L. LONGORIA
                                                        Justice

Delivered and filed the
15th day of January, 2014.



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