COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-15-00105-CV

RICHARD ALLEN NICHOLSON 

AND HELENA MARY NICHOLSON

APPELLANTS

V.

CITIMORTGAGE, INC. APPELLEE 

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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

TRIAL COURT NO. 14-08061-362

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MEMORANDUM OPINION1

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Appellants Richard Allen Nicholson and Helena Mary Nicholson attempt to 

appeal from a February 19, 2015 order granting the home equity foreclosure 

application of Appellee CitiMortgage, Inc. See Tex. R. Civ. P. 736.1. On June 5, 

2015, we notified Appellants of our concern that we lack jurisdiction over this 

 

1See Tex. R. App. P. 47.4.
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appeal because the order being appealed does not appear to be a final judgment 

or an appealable interlocutory order. Appellants responded that the order is final 

and, alternatively, that rule of civil procedure 736.8(c) violates the Texas 

constitution’s open courts provision, unreasonably restrains access to courts, and 

is illusory.

Rule of civil procedure 736 provides the procedure for obtaining a court 

order, when required, to allow foreclosure of a lien containing a power of sale. 

Tex. R. Civ. P. 735.1. Rule 736.8(c) states that an order granting or denying an 

application under rule 736 “is not subject to a motion for rehearing, new trial, bill 

of review, or appeal.” Tex. R. Civ. P. 736.8(c) (emphasis added). Thus, this 

appeal is expressly precluded by rule 736.8(c). Moreover, the rule is not 

unenforceable for the reasons articulated by Appellants because it contains a 

specific procedure for challenging the trial court’s order—“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.”2 Id.; see also Tex. R. Civ. P. 

736.11(a), (c) (requiring trial court to vacate order upon motion when respondent 

files separate, original proceeding “that puts in issue any matter related to the 

origination, servicing, or enforcement of the loan agreement, contract, or lien 

 

2Appellants argue that the independent proceeding procedure is illusory 

and provides “no meaningful access to the courts” because “[w]hen separate 

proceedings are filed challenging the validity of a lien under Section 50(a) of the 

Texas Constitution, lenders remove the cases to federal court and then get them 

dismissed on the grounds that there is a four-year statute of limitations to bring 

such suits.” We decline to disregard rule 736.8(c)’s clear and unambiguous 

requirement on speculation alone.
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sought to be foreclosed prior to 5:00 p.m. on the Monday before the scheduled 

foreclosure sale”).

Accordingly, we dismiss this appeal for want of jurisdiction. See Tex. R. 

App. P. 43.2(f); see also Wood v. 21st Century Mortg. Corp., No. 05-14-01467-

CV, 2015 WL 3866634, at *1 (Tex. App.—Dallas June 23, 2015, no pet. h.) 

(mem. op.) (dismissing appeal for want of jurisdiction); Statin v. Deutsche Bank 

Nat’l Trust Co., No. 01-14-00142-CV, 2014 WL 5018901, at *1 (Tex. App.—

Houston [1st Dist.] Oct. 7, 2014, no pet.) (mem. op.) (same); McLane v. 

Washington Mut. Bank, No. 02-07-00460-CV, 2008 WL 2780665, at *1 (Tex. 

App.—Fort Worth July 17, 2008, no pet.) (mem. op.) (same).

PER CURIAM

PANEL: MEIER, GABRIEL, and SUDDERTH, JJ.

DELIVERED: July 16, 2015