NO. 04-15-00267-CV

IN THE COURT OF APPEALS 

THE FOURTH DISTRICT OF TEXAS 

SAN ANTONIO, TEXAS 

DOLORES REYNOSO, and all other OCCUPANTS, 

Appellant, 

v.

LOFT CONCEPTS, INC., 

 Appellee. 

Appeal from the County Court at Law Number Three 

Bexar County, Texas 

Trial Court Case No. 2015CV00936 

Hon. David J. Rodriguez, presiding 

 First Amended Appellant’s Brief 

ACCEPTED

04-15-00267-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

9/11/2015 10:29:18 AM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 09/11/2015 10:29:18 AM KEITH E. HOTTLE Clerk
Identity of the Parties

Appellant/Defendant

DOLORES REYNOSO

Counsel for Appellant/Defendant

James Minerve

State Bar No. 24008692

115 Saddle Blanket Trail

Buda, Texas 78610

(210) 336-5867

(888) 230-6397 (Fax)

Email: jgm@monervelaw.com

(Appellate, Post-trial, and Trail)

Appellee/Plaintiff

LOFT CONCEPTS, INC.

Counsel for Appellee/Plaintiff

RL WILSON LAW FIRM

Trey Wilson

111 W. Olmos Dr. 

San Antonio, Texas 78212

(210) 335-2147

(210) 930-9353 Fax

Rwl3d@sa-law.com

(Appellate, Post-trial, and Trail)
Table of Contents

Identity of the Parties.................................................................................................2

Table of Authorities...................................................................................................4

Statement of the Case.................................................................................................6

Statement Regarding Oral Argument ........................................................................7

The Record Of Appeal 8

Statement of Facts....................................................................................................10

Summary of the Argument.......................................................................................10

Prayer .......................................................................................................................20

Appendix..................................................................................................................23
Table of Authorities 

Cases Page

Allied First Nat. Bank of Mesquite v. Jones, 766 S.W.2d 800, 804 (Tex.App.-Dallas 

1988, no writ)...........................................................................................................11

Beard v. Aurora Loan Services, LLC, 2006 WL 1350286 ......................................13

Black v. Washington Mut. Bank, 318 S.W.3d 414, 416 (Tex. App.-Houston [1st 

Dist.] 2010, pet. dism'd w.o.j.).................................................................................14

Boggs v. Boggs, 520 U.S. 833, 844, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997).........18

Bonilla v. Roberson, 918 S.W.2d 17 (Tex.App.-Corpus Christi 1996, no writ) .....12

Bruce v. Fed. Nat'l Mortg. Ass 'n, 352 S.W.3d 891 (Tex. App.-Dallas 2011, pet. 

denied)................................................................................................................16, 17

Diversified, Inc. v. Walker, 702 S.W.2d 717 (Tex.App.-Houston [1st Dist.] 1985, 

writ ref’d n.r.e.)............................................................................................10, 11, 12

Dormady v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555 (Tex.App.-San 

Antonio, 2001, no writ)......................................................................................13, 17

Elwell v. Countywide Home Loans, Inc., 267 S.W.3d 566 (Tex. App.-Dallas 2008, 

pet. dism'd w.o.j.).....................................................................................................17

Field Measurement Serv., Inc. v. Ives, 609 S.W.2d 615 (Tex.App.-Corpus Christi 

1980, writ ref’d n.r.e.)..............................................................................................11

First Southern Properties, Inc. v. Vallone, 533 S.W.2d 339 (Tex.1976)..........10, 11

First State Bank v. Keilman, 851 S.W.2d 914, 924 (Tex.App.-Austin 1993, writ 

denied)................................................................................................................12, 13

Goggins v. Leo, 849 S.W.2d 373 (Tex. App.-Houston [14th Dist.] 1993, no writ) 13

Hammonds v. Holmes, 559 S.W.2d 345 (Tex. 1977) ..............................................11

Henke v. First Southern Properties, Inc., 586 S.W.2d 617 (Tex.Civ.App.—Waco 

1979, writ ref'd n.r.e.)...............................................................................................10

Hopes v. Buckeye Ret. Co., LLC, No. 13-07-00058-CV, 2009 WL 866794 (Tex. 

App.-Corpus Christi, Apr. 2, 2009, no pet.) ......................................................16, 17

Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169 (Tex. App.-Houston [1st 

Dist.] 1995, writ denied)..................................................................13, 14, 15, 16, 17

Morris v. American Home Mortgage Servicing, 360 S.W.3d 32 (Tex. App.-Houston 

[1st Dist.] 2011, no pet.) ..............................................................................15, 16, 17

Oles v. Curl, 65 S.W.3d 129 (Tex.App.-Amarillo 2001, no pet.) ...........................11

Pentad Joint Venture v. First Nat. Bank of La Grange, 797 S.W.2d 92, 96 (Tex.App.-

Austin 1990, no writ)...............................................................................................12

Peterson v. Black, 980 S.W.2d 818 (Tex.App. 1988) .............................................11

Rice v. Pinney, 51 S.W.3d 705, 712-13 (Tex. App.-Dallas 2001, no pet.)........15, 17

Sani v. Powell, 153 S.W.3d 736 (Tex.App.-Dallas 2005, pet. denied) ...................11

Scarborough v. Winn Residential L.L.P./Atlantic Terrace Apartments, 890 A.2d 249 
(2006).......................................................................................................................18

Silliman v. Gammage, 55 Tex. 365, 1881 Tex. LEXIS 127, *9–11, 1881 WL 9787 

(1881).......................................................................................................................11

Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671 (1942) .............................10, 11

Spring Branch Independent School Dist. v. Siebert, 100 S.W.3d 520 (Tex.App.-

Houston [1st Dist.] 2003, no pet.)............................................................................11

Villalon v. Bank One, 176 S.W.3d 66, (Tex. App.-Houston [1st Dist.] 2004, no pet.)

..................................................................................................................................15

Yarto & DTRJ Invs., L.P. v. Gilliland, 287 S.W.3d 83 (Tex. App.--Corpus Christi 

2009, no pet.) .....................................................................................................16, 17

United States Code

12 U.S.C. 2605(k)(C) ............................................................................... 9, 18

Code of Federal Regulations

12 C.F.R. 1024.33(d) ...............................................................................................18

12 C.F.R.1024.35(b)(9)....................................................................................... 9, 18

12 C.F.R.1024.35(b) (10).................................................................................... 9, 18

12 C.F.R 1024.41(f)(2) ....................................................................................... 9, 18

12 C.F.R 1024.41(f) (g) ...................................................................................... 9, 18

24 C.F.R. 3500.21(h) ...............................................................................................18

Texas Rules of Civil Procedure 

Texas Rule of Civil Procedure Section 746.............................................................13

Texas Rule of Civil Procedure Section 749.............................................................13

Texas Government Code

Texas Government Code Section 27.031(b)(4).......................................................14

Texas Property Code 

Texas Property Code Section 24.004.......................................................................13

Texas Property Code Section 51.002.......................................................................13
Appellant’s Appeal Brief Page 6 of 23

Statement of the Case

This is a Forcible Detainer Case. On or about October 11, 2014, the Appellee 

filed a Forcible Detainer Action. On January 27, 2015 the JP Court issued a judgment 

in favor of Appellee.1 The Appellant appealed to the County Court at Law No. 3. 

The County Court held a trial de novo and issued a judgment in favor of Appellee

on April 20, 2015.2 This appeal followed.

 

1 See Exhibit A.

2 See Exhibit B.
Appellant’s Appeal Brief Page 7 of 23

Statement Regarding Oral Argument

Pursuant to Texas Rules of Appellate Procedure 39.1, Dolores Reynoso requests oral 

argument and submits that oral argument would materially aid the decisional process 

in this case.
Appellant’s Appeal Brief Page 8 of 23

The Record on Appeal

This brief will refer the record as follows:

 Clerks Record “CR____”

 Supplemental Clerk’s Record “Supp.____”

 Deposition Testimony in Clerk’s Record “CR___, [Name] Dep. at ___”

 Reporter’s Record “____RR____”

 Appellee’s Brief “App’e Br. At___”

 Appellee’s Exhibits “App’e X ___”
Appellant’s Appeal Brief Page 9 of 23

Issues Presented

Appellant respectfully submits the following trial brief which outlines the 

legal framework in which the Court should consider the following: 

1. Does Appellee’s failure to comply with Federal laws governing foreclosure 

of loans secured by a homestead render a Substitute Trustee Deed void ab initio, 

necessitating a decision as to title, and thereby deprive the lower courts of 

jurisdiction to hear a forcible detainer action?

2. Under these circumstances, do the relevant provision of RESPA and 

Regulation X preempt state law?
Appellant’s Appeal Brief Page 10 of 23

Statement of Facts

This is a Forcible Detainer Case. On or about October 11, 2014, the Appellee 

filed a Forcible Detainer Action. On January 27, 2015, the JP Court issued a 

judgment in favor of Appellee. CR 181 The Appellant appealed to the County Court 

at Law No. 3.CR 59 The County Court held a trial de novo and issued a judgment in 

favor of Appellee on April 20, 2015.CR 47 This appeal followed.

Appellant submitted a complete loan modification application to their loan 

servicer, well over 37 days before the purported substitute trustee sale. 

Appellant has not received a rejection letter from the loan servicer regarding 

the loan modification application. CR 47

Summary of the Argument

The purported substitute trustee sale was unlawful because Appellant 

submitted a completed loan modification application, well over 37 days before the 

foreclosure. CR 218 The loan servicer never sent Appellant a hard rejection letter as 

required by RESPA and Regulation X. Consequently, the purported substitute 

trustee lacked authority to conduct the sale, and the purported substitute trustee sale 

was void ab initio. Therefore, this court lacks jurisdiction to hear this matter since a 

title dispute is inherently raised.

Congress expressed its intent in RESPA and Regulation X that mortgage 

servicers must halt foreclosure under certain limited circumstances. Because the 

non-judicial foreclosure and forcible detainer scheme under Texas law allows a 

mortgage servicer to foreclose on a homestead without any need to prove compliance 

with law, and then to remove the homeowner from the property, Texas law stands 

as an obstacle to the accomplishment and execution of the full purposes and 
Appellant’s Appeal Brief Page 11 of 23

objectives of Congress.

Argument

The Substitute Trustee Lacked Authority to Foreclose

1. 12 U.S.C. 2605(k) (C) and Regulation X (RESPA), i.e., 12 C.F.R 

1024.41(g), prohibit a loan servicer from proceeding with a scheduled foreclosure, 

if the loan servicer received a completed loan modification application and did not 

provide the borrower with a rejection letter at least 30 days before the scheduled 

foreclosure sale. 

2. Appellant submitted a complete loan modification application to their 

loan servicer, well over 37 days before the purported substitute trustee sale. 

3. Appellant has not received a rejection letter from the loan servicer 

regarding the loan modification application.

4. Therefore, the trustee was prohibited from conducting the purported 

substitute trustee sale of the property.

5. In the instant case, since the conditions and limitations on the trustee's

power to convey the land were never fulfilled, such power never lawfully came into 

being, and the foreclosure sale was void. See Slaughter v. Qualls, 162 S.W.2d at 

675. In Henke v. First Southern Properties, Inc., 586 S.W.2d 617 (Tex.Civ.App.—

Waco 1979, writ ref'd n.r.e.). First Southern Properties was a purchaser at a void 

foreclosure sale. The court held that the trustee conducting the sale had no lawful 

authority to offer the property for sale, and therefore, the purchaser could not acquire 

title to the property. Henke, 586 S.W.2d at 620.

6. The general effect of a good faith purchaser for value without notice 

does not apply to a purchaser at a void foreclosure sale. A purchaser at a foreclosure 

sale obtains only such title as the trustee had authority to convey. First Southern 
Appellant’s Appeal Brief Page 12 of 23

Properties, Inc. v. Vallone, 533 S.W.2d 339, 341 (Tex.1976). 

7. Whether a trustee’s deed at a foreclosure sale is void or voidable 

depends on its effect upon the title at the time it was executed and delivered. 

Diversified, Inc. v. Walker, 702 S.W.2d 717, 721 (Tex.App.-Houston [1st Dist.] 

1985, writ ref’d n.r.e.). If the deed is a mere nullity, passing no title and conferring 

no rights whatsoever to the purchaser, then it is void ab initio. However, if the deed 

passed title to the purchaser, subject only to the rights of the grantor to have it set 

aside because it was improperly made, then the deed is voidable. Id. (citing Slaughter 

v. Qualls, 139 Tex. 340, 162 S.W.2d 671, 674 (1942)). “That which is void is without 

vitality or legal effect. That which is voidable operates to accomplish the thing 

sought to be accomplished, until the fatal vice in the transaction has been judicially 

ascertained and declared.” Slaughter, 162 S.W.2d at 674.

8. A purchaser obtains no greater interest in the property than the debtor 

himself could have conveyed at the time of the sale. Allied First Nat. Bank of 

Mesquite v. Jones, 766 S.W.2d 800, 804 (Tex.App.-Dallas 1988, no writ) (“Since 

the conditions and limitations on the trustee’s power to convey the land were never 

fulfilled, such power never lawfully came into being, and the foreclosure sale and 

trustee’s deed were therefore void.”); see also Sani v. Powell, 153 S.W.3d 736, 742 

(Tex.App.-Dallas 2005, pet. denied) (finding that if the sheriff acts outside his 

authority in the foreclosure sale, the sale is void and title does not pass); Spring 

Branch Independent School Dist. v. Siebert, 100 S.W.3d 520, 524 (Tex.App.-

Houston [1st Dist.] 2003, no pet.) (finding a foreclosure on a tax lien is void because 

it failed to describe a definite tract of land); Oles v. Curl, 65 S.W.3d 129, 131 

(Tex.App.-Amarillo 2001, no pet.) (finding foreclosure sale void because it was 

conducted in violation of an automatic stay); Field Measurement Serv., Inc. v. Ives,
Appellant’s Appeal Brief Page 13 of 23

609 S.W.2d 615, 620 (Tex.App.-Corpus Christi 1980, writ ref’d n.r.e.) (void deed is 

neither title nor color of title for purposes of three-year statute of limitations). 

9. However, when a foreclosure sale is void, whether the purchaser is a 

bona fide purchaser is irrelevant. Diversified, Inc., 702 S.W.2d at 721 (“The general 

effect of a “good faith purchaser for value without notice” does not apply to a 

purchaser at a void foreclosure sale.”) (citing First Southern Properties, Inc. v. 

Vallone, 533 S.W.2d 339, 343 (Tex.1976)). 

10. Because title never passes between parties in a void foreclosure sale, 

the remedy is to place the parties in the same position they were before, as if the 

foreclosure had never taken place. Silliman v. Gammage, 55 Tex. 365, 1881 Tex. 

LEXIS 127, *9–11, 1881 WL 9787 (1881); Diversified, Inc., 702 S.W.2d at 721 

(after finding a void foreclosure sale, the court found that “the trial court properly 

sought to restore the parties to the same position that they would have been in but 

for the wrongful sale”). 

11. A trustee exercising the authority to foreclose in accordance with the 

terms of a deed of trust does not act merely as an agent or employee of the lienholder 

but has a separate capacity with a particular legal responsibility. Peterson v. Black,

980 S.W.2d 818, 822 (Tex.App. 1988) (citing Hammonds v. Holmes, 559 S.W.2d 

345, 347 (Tex. 1977).

12. The trustee becomes a special agent for both the debtor and the 

lienholder and must act with absolute impartiality and fairness in conducting a 

foreclosure. Id. (citing Bonilla v. Roberson, 918 S.W.2d 17, 21 (Tex.App.-Corpus 

Christi 1996, no writ)). “Similar to the duties of a mortgagee, the trustee must 

conduct a foreclosure sale fairly and not discourage bidding by acts or statements

made before or during the sale.” Id. (citation omitted). 
Appellant’s Appeal Brief Page 14 of 23

13. However, the trustee has no duty to take affirmative actions beyond that 

required by statute or the deed of trust to ensure a fair sale. Id. (citing First State 

Bank v. Keilman, 851 S.W.2d 914, 924 (Tex.App.-Austin 1993, writ denied)); 

Pentad Joint Venture v. First Nat. Bank of La Grange, 797 S.W.2d 92, 96 (Tex.App.-

Austin 1990, no writ). 

14. A trustee’s duties are fulfilled by complying with the deed of trust. Id.

(citing First State Bank v. Keilman, 851 S.W.2d at 925). The trustee does have a 

duty, however, to strictly comply with terms of the deed of trust as well as 

[applicable Constitutional and statutory provision, regulations and] the notice and 

sale provisions of § 51.002 of the Texas Property Code. Beard, 2006 WL 1 350286 

*7 (citation omitted). 

Lack of Subject Matter Jurisdiction 

15. Appellee has no right to possession because the lower Court lacks 

subject matter jurisdiction to decide the forcible detainer petition. Justice of the 

peace courts and, on appeal, county courts, have jurisdiction of forcible-detainer 

suits. TEX. PROP. CODE ANN. § 24.004 (Vernon Supp. 2011); TEX. R. CIV. P. 

749. 

16. The sole issue in a forcible-detainer action is which party has the right 

to immediate possession of the property. TEX. R. CIV. P. 746; Dormady v. Dinero 

Land & Cattle Co., L.C., 61 S.W.3d 555, 557 ("[T]he merits of the title shall not be 

adjudicated"). Accordingly, to prevail in a forcible-detainer action, the plaintiff need 

not prove title but merely present sufficient evidence of ownership to demonstrate a 

superior right to immediate possession. Dormady, 61 S.W.3d at 557 (citing Goggins 

v. Leo, 849 S.W.2d 373, 377 (Tex. App.-Houston [14th Dist.] 1993, no writ)). 

17. Courts have recognized that a question of title may be so intertwined 
Appellant’s Appeal Brief Page 15 of 23

with the issue of possession so as to preclude adjudication of the right to possession 

without first determining title. In such cases, neither the justice court nor the county 

court on appeal, has jurisdiction. Dormady, 61 S.W.3d at 557-58; Mitchell v. 

Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex. App.-Houston [1st Dist.] 

1995, writ denied). Whether such subject-matter jurisdiction exists "is a question of 

law, subject to de novo review." Black v. Washington Mut. Bank, 318 S.W.3d 414, 

416 (Tex. App.-Houston [1st Dist.] 2010, pet. dism'd w.o.j.). 

18. A justice court may not adjudicate title to land. TEX. GOV'T CODE 

ANN. § 27.031(b)(4) (Vernon Supp 2011). Subject-matter jurisdiction can be raised 

at any time, including for the first time on appeal. ld. Whether an existing title 

dispute in another court deprives the justice and county courts of jurisdiction to 

adjudicate possession in forcible-detainer actions generally turns on whether there 

is a basis-independent of the claimed right to title-for the Plaintiff’s claim of superior 

possession rights in the property. 

19. In Mitchell v. Armstrong Capital Corp., the Court held that a pending 

title dispute in state district court deprived the justice courts, county courts, and 

courts of appeal of jurisdiction over a claimed right of possession flowing from 

rights as the purchaser at a foreclosure sale. 911 S.W.2d at 169. In that case, title to 

the property owner's home was burdened with a Builder's and Mechanic's Lien 

Contract securing payment on a promissory note to Armstrong Capital Corporation 

for repairs. Id. at 170. After the property owner defaulted, Armstrong Capital 

requested enforcement of the lien and it purchased the property at the resulting 

substitute trustee's sale. Id. After the property owner refused a demand to vacate, 

Armstrong Capital filed a forcible-detainer action. Id. 

20. Among other defenses, the property owners asserted that the lower 
Appellant’s Appeal Brief Page 16 of 23

courts, and appellate Court, lacked jurisdiction because they had requested 

abatement of the forcible-detainer action pending the outcome of a lawsuit they filed 

in state district court seeking to set aside the foreclosure. Id. At 170-71. The Texas 

Supreme Court agreed, explaining that "[b'[ecause a 'title issue' was involved in the 

courts below, they had no subject matter jurisdiction over the case." Id. at 170. 

21. In contrast, in Morris v. American Home Mortgage Servicing, the Texas 

Supreme Court addressed jurisdictional arguments identical to those made by 

appellants in Mitchell, but held that the justice court, county court, and appellate 

Courts did have jurisdiction. 360 S.W.3d 32, 35 (Tex. App.-Houston [1st Dist.] 

2011, no pet.). There the Texas Supreme Court noted that, unlike in Mitchell, "the 

original deed of trust contained language establishing a landlord-tenant relationship 

between the borrower and the purchaser." Id. The Texas Supreme Court concluded 

this was a dispositive difference because it provided a basis to resolve rights to 

possession without resolving the ultimate title dispute:

“The existence of a landlord-tenant relationship provides a 

basis for the court to determine the right to immediate 

possession without resolving the question of title. See 

Villalon [v. Bank One], 176 S.W.3d [66,] 71 [(Tex. App.-

Houston [1st Dist.] 2004, no pet.)]. When, however, the right 

to possession depends upon the resolution of a question of 

title, neither the justice court nor the county court has 

jurisdiction. Mitchell v. Armstrong Capital Corp., 911 

S.W.2d 169, 171 (Tex. App.- Houston [1st Dist.] 1995, writ 

denied). 

....

Because the plaintiff in a forcible detainer action is only 

required to demonstrate a superior right to immediate 

possession, the county court can determine possession 

without quieting title if the deed establishes a landlord-tenant 

relationship between the borrower and the purchaser of the 

property at the foreclosure sale. See Villalon, 176 S.W.3d at 
Appellant’s Appeal Brief Page 17 of 23

71; Rice v. Pinney, 51 S.W.3d 705, 712-13 (Tex. App.-Dallas 

2001, no pet.). At the hearing, AHMS introduced the 

substitute trustee's deed, showing that Wells Fargo was the 

successor in interest to Option One Mortgage Corporation, 

and that it, through its servicing agent, ARMS, had purchased 

the property at the foreclosure sale. Evidence presented in the 

county court also established that the original deed of trust 

contained language establishing a landlord-tenant 

relationship between the borrower and the purchaser. ARMS 

also introduced the notice to vacate, which named it as the

successor in interest, as a servicing agent, to Option One 

Mortgage Corporation. Because the evidence in the county 

court showed that ARMS was the service agent for Wells 

Fargo, and there was a landlord tenant-relationship between 

Morris and Wells Fargo, the county court could determine 

possession without quieting title. Accordingly, we hold that 

the justice and county courts were not deprived of subjectmatter jurisdiction.”

Morris, 360 S.W.3d at 34-35; see also Yarto & DTRJ Invs., L.P. v. Gilliland, 287

S.W.3d 83, 89 (Tex. App.--Corpus Christi 2009, no pet.) ("In most situations, the 

parties in a forcible detainer suit are in a landlord-tenant relationship. One indication 

that a justice court, and a county court on appeal, is called on to adjudicate title to 

real estate in a forcible detainer case-and, thus exceed its jurisdiction-is when a 

landlord-tenant relationship is lacking.").

22. Courts have consistently followed or distinguished Mitchell on the 

same basis. Compare Yarto, 287 S.W.3d at 89-90 (concluding justice court lacked 

subject-matter jurisdiction in forcible-detainer action because determining who had 

a superior right of possession required immediate resolution of title dispute) and 

Hopes v. Buckeye Ret. Co., LLC, No. 13-07-00058-CV, 2009 WL 866794, at *5 

(Tex. App.-Corpus Christi, Apr. 2, 2009, no pet.) ("Without a landlord-tenant 

relationship or other basis independent of the Community Improvements contract, 
Appellant’s Appeal Brief Page 18 of 23

the justice court could not determine the issue of immediate possession without 

determining ownership of the property."), with Bruce v. Fed. Nat'l Mortg. Ass 'n, 

352 S.W.3d 891, 893-94 (Tex. App.-Dallas 2011, pet. denied) (agreeing that "title 

determination was not required to determine the right to possession because the 

landlord-tenant relationship [found within the deed] provided an independent basis 

for possession" such that justice court had jurisdiction over forcible-detainer claim); 

Elwell v. Countywide Home Loans, Inc., 267 S.W.3d 566, 569 (Tex. App.-Dallas 

2008, pet. dism'd w.o.j.) (holding justice and county courts had jurisdiction in 

forcible-detainer action because deed of trust rendered appellant a "tenant at 

sufferance," giving rise to landlord-tenant relationship between parties and, thus, "it 

was not necessary for the trial court to determine whether the foreclosure was valid 

before awarding possession to Countrywide"); Rice, 51 S. W.3d at 709-10 (holding 

justice and county courts had jurisdiction in forcible- detainer action because deed 

of trust established a landlord and tenant-at- sufferance relationship, which, unlike 

in Mitchell, provided an "independent basis on which the trial court could determine 

the issue of immediate possession without resolving the issue of title to the 

property"); Dormady, 61 S.W.3d at 559 (holding justice and county courts had 

jurisdiction in forcible-detainer action, observing that the situation in Mitchell was 

"not the situation in this case where a landlord-tenant relationship is established in 

the original deed of trust" that "provides a basis for determining the right to 

immediate possession without resolving the ultimate issue of title to the property.").

23. Plaintiff has not argued that there is any basis for its claimed possession 

rights other than the title rights it gained through the disputed foreclosure. Thus, in 

this case-unlike the Morris, Bruce, Elwell, Rice and Dormady cases cited above--

there is no independent basis aside from Plaintiff's claim that it has superior title 
Appellant’s Appeal Brief Page 19 of 23

rights. Rather, like in Mitchell, Yarto, and Hopes, Plaintiff's claim to possession in 

this FED proceeding rests solely on its claim to have purchased the Property at a 

valid substitute sale. Accordingly, this Court "has no subject matter jurisdiction over 

the FED Petition. Therefore, the Court must dismiss this FED Action.

The Texas Non-Judicial Foreclosure and Forcible Detainer Scheme is 

Preempted by Federal Law

24. The United States Supreme Court enumerated three ways in which 

federal law can preempt state law: by express preemption, by field preemption, and 

by implied or conflict preemption, “which applies “‘where compliance with both 

federal and state regulations is a physical impossibility, ... or where state law stands 

as an obstacle to the accomplishment and execution of the full purposes and 

objecti[ves] of Congress.’” Scarborough v. Winn Residential L.L.P./Atlantic 

Terrace Apartments, 890 A.2d 249, 255 (2006), quoting Boggs v. Boggs, 520 U.S. 

833, 844, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997) (citations omitted).

25. In enacting Regulation X, Congress only specifically addressed 

preemption with respect to state laws that created notice obligations. See, 12 C.F.R. 

1024.33(d), 24 C.F.R. 3500.21(h) (providing that state law provisions requiring 

notice to a borrower under certain circumstances are preempted, while state laws 

creating an obligation to notify insurance companies or taxing authorities are not 

preempted). 

26. The Texas non-judicial foreclosure and forcible detainer scheme 

conflicts with the intent of Regulation X, and is therefore preempted. 12 U.S.C. 

Regulation X (RESPA), i.e., (10) and 12 C.F.R 1024.41 (g), prohibit a loan servicer 

from proceeding with a scheduled foreclosure, if the loan servicer received a 

completed loan modification application and did not provide the borrower with a 
Appellant’s Appeal Brief Page 20 of 23

rejection letter at least 30 days before the scheduled foreclosure sale. Texas law 

allows a mortgage servicer to nonjudicially foreclose on a homestead without 

complying with Regulation X, and then provides a method by which the mortgage 

servicer (or any third party purchaser from the servicer) can remove the homeowner 

from their property, while giving them no opportunity to challenge the failure to 

comply with Federal law. In effect, a loan servicer who proceeds with a nonjudicial 

foreclosure and eviction in violation of Regulation X is given a quick, easy and 

cheap method to deprive a Texas citizen of their homestead in violation of Federal 

law, circumventing the clear intent of Congress.

Prayer

27. Appellant prays that this Court find that Appellee’s failure to comply 

with Federal laws governing foreclosure of loans secured by a homestead renders 

the Substitute Trustee Deed void ab initio, necessitating a decision as to title, and 

thereby deprives the lower courts of jurisdiction to hear the forcible detainer action.

28. Appellant prays that this Court find that RESPA and Regulation X 

preempt state law, preventing a foreclosure and eviction when: (a) a homeowner has 

submitted a loan modification application 37 days before foreclosure; and (b) the 

homeowner is not provided a rejection letter prior to foreclosure.

Date: August 6, 2015

Respectfully submitted,

/s/ James Minerve

___________________________

James Minerve

State Bar No. 24008692
Appellant’s Appeal Brief Page 21 of 23

115 Saddle Blanket Trail

Buda, Texas 78610

(210) 336-5867

(888) 230-6397 (Fax)

Email: jgm@minervelaw.com

Attorney for Appellant Dolores Reynoso

CERTIFICATE OF COMPLIANCE

I, James Minerve, counsel for Appellant, DOLORES REYNOSO, certify that 

this document was computer-generated, and that the number of words, pursuant to 

the terms of Texas Rule of Appellate Procedure 9.4(i), is 3,148.

/s/ James Minerve

______________________________

James Minerve
Appellant’s Appeal Brief Page 22 of 23

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing 

document was sent to the Appellee in accordance with the Texas Rules of Civil 

Procedure on this 6th day of August, 2015: 

RL WILSON LAW FIRM

Trey Wilson

111 W. Olmos Dr. 

San Antonio, Texas 78212

(210) 335-2147

(210) 930-9353 Fax

Rwl3d@sa-law.com

/s/ James Minerve

______________________________

James Minerve
Appellant’s Appeal Brief Page 23 of 23

Appendix

1. Judgment, Justice Court Precinct 1, Bexar County, Texas

2. Judgment, Bexar County Court at Law Number Three