CAUSE NO.

CV-23-0245

THOMAS C. HOLLENSHEAD, § IN THE DISTRICT COURT

§
Appellant, §
§
v. § 59th JUDICIAL DISTRICT
§
BANK OF AMERICA, N.A., and §
NATIONAL RESIDENTIAL §
ASSETS CORP., §
§
Appellees. § GRAYSON COUNTY, TEXAS

APPELLANT’S BRIEF

Appellant, Thomas C. Hollenshead submits the following in support of

his appeal states as follows:

I. STATEMENT OF THE ISSUES

A. Whether the Trial Court’s Order Granting Appellees’ Motion

for Summary Judgment should be reversed because res judicata
is not a defense when material facts have changed since the
prior lawsuit was dismissed.

B. Whether Appellees intentionally and knowingly made a false

claim that the United States Magistrate Judge found that the
September 29, 2014, acceleration was abandoned.

C. Whether the Statute of Limitations is a bar to Appellees’ right

to foreclose on the property and collect on the note.

PLAINTIFF’S MOTION TO RECONSIDER THE COURT’S ORDER

GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – Page 1
I. ARGUMENT AND AUTHORITIES

Whether the Court’s Order Granting Appellees’ Motion for

Summary Judgment should be reversed because res judicata is
not a defense when material facts have changed since the prior
lawsuit was dismissed.

The Order Granting Appellees’ Motion for Summary Judgment, to which this

appeal seeks reversal, is based on a finding that the affirmative defense of res judicata

applies to Appellant’s claim in this lawsuit. Appellees based their argument on the Final

Order entered on June 29, 2020, by the Honorable Amos Mazzant, Judge of the Eastern

District of Texas, Sherman Division. In that Final Order, Judge Mazzant found that, due

to tolling of the limitations period while a prior lawsuit was pending, the statute of

limitations had not expired and was not a bar to the rights of the Appellees to foreclose

on the property and take action to collect the note. However, the Court’s order granting

summary judgment should be reversed because the defense of res judicata does not

apply where significant facts have changed or new facts have occurred since

the prior order, as the following argument will demonstrate.

The Eastern District found that the period from September 29, 2014,

when the note was accelerated, through the date that lawsuit was filed on

September 28, 2018, was not a bar to foreclosure because, as Judge Mazzant

states in his ___________, the fact the limitations period was tolled for 626

PLAINTIFF’S MOTION TO RECONSIDER THE COURT’S ORDER

GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – Page 2
days while a prior lawsuit was pending defeats [Appellant’s] that the

limitations period had run. Appellant argues that the period following the

Final Order in the Eastern District lawsuit has changed the facts considered by

the Judge Mazzant. Since the Final Order issued by Judge Mazzant was

entered on June 29, 2020, an additional period of 969 days has passed during

which time Appellees had the right to foreclose on the property and they did

not exercise that right. Those additional days is a change in the material facts

considered by Judge Mazzant in the prior lawsuit.

In Marino v. State Farm, 787 S.W. 2d 948 (Tex. 1990), the Texas

Supreme Court has made clear that res judicata is not a valid defense when a

material change of facts has occurred since the prior ordern. In Marino, the Supreme

Court of Texas acknowledged that, based on a “well-accepted rule that res

judicata will not bar a second lawsuit where, between the first and subsequent

lawsuit, the facts have changed, or new facts have occurred, which may alter

the legal rights or relations of the parties.” Marino at 949-50, cited in Davis v.

Ocwen Loan Servicing, CIVIL ACTION NO. 3:18-CV-2720-B-BN (N.D. Tex.

May 04, 2020) (the defense of res judicata does not apply when a change in a

material fact occurs subsequent to the prior order) (emphasis added).

PLAINTIFF’S MOTION TO RECONSIDER THE COURT’S ORDER

GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – Page 3
 In Davis, the Appellants had filed suit in state court to stop a foreclosure

action in 2017. Their suit to prevent the foreclosure action was dismissed in

2019. Shortly thereafter, they sought relief in the federal district court, based

on the same facts. That case was summarily dismissed because no new facts

had occurred since the prior lawsuit that would defeat the defendant’s res

judicata defense.

Here, Appellees had several months to foreclose on the property after the

June 29, 2020, ruling by Judge Mazzant, but did not do so. Appellant has now

asserted a new claim that the limitations period has expired based on a change

of material facts. Thus, based on the “well-accepted rule” in Marino,

Appellees’ claim of res judicata is not a defense to Appellant’s statute of

limitations claim before the Court now.

A. Whether Appellees intentionally and knowingly made a false

claim that the United States Magistrate Judge found that the
September 29, 2014, acceleration was abandoned.

The operative limitations period began when the Appellees accelerated

the loan on September 29, 2014. Appellees argued in their motion for summary

judgment and in person to the Court that Judge Mazzant found that the 2014

acceleration was abandoned. However, the Magistrate’s Report and

Recommendations that were submitted by Appellees in support of their motion

PLAINTIFF’S MOTION TO RECONSIDER THE COURT’S ORDER
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – Page 4
clearly states that no finding was made as to abandonment of the 2014

acceleration. A copy of the relevant section of the Magistrate’s report appears

at _______ and is attached for the court’s convenience and incorporated herein

by reference for all purposes. As the Court can see, the magistrate’s report does

not conclude that the 2014 acceleration was abandoned. To the contrary, the

magistrate finds that the Appellees’ arguments for abandonment were

insufficient to support a finding of abandonment.

The date of the 2014 acceleration is significant because, as the Magistrate

found that 24 months had passed between that date of the acceleration, i.e.,

September 29, 2014, and filing of the second lawsuit on September 28, 2018.

Because the 2014 Lawsuit had been pending for approximately 636 days –

nearly two years – the limitations period had been tolled during that period of

time and, thus, Appellant’s statute of limitations argument failed.

Appellees knowingly stated that the Magistrate’s report found that the

2014 acceleration was abandoned, which, if true, would have the effect of

giving rise to the res judicata defense. That argument was knowingly false, and

that knowingly false statemen, in part, formed the basis for the 59 th Judicial

District Court’s granting of Appellees’ motion for summary judgment.

PLAINTIFF’S MOTION TO RECONSIDER THE COURT’S ORDER

GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – Page 5
 C. Whether the relevant Statute of Limitations is a bar to
Appellees’ right to foreclose on the property and collect on the
note.

Under Texas law, a real property lien and the power of sale to enforce it

become void if a holder of the mortgage does not foreclose under a deed of trust

within four years of the date the cause of action accrues. Tex. Civ. Prac. & Rem.

Code § 16.035(d). Section 16.035(e) provides further that the four-year

limitations period does not begin to run until the maturity date of the last note,

obligation, or installment. See also Holy Cross Church of God in Christ v. Wolf,

44 S.W.3d 562, 566 (Tex. 200l) (Texas four-year limitations period controls

rather than federal six-year period.) According to the Holy Cross court, an

action on a mortgage loan accrues when the note is clearly and unequivocally

accelerated. Id. Accordingly, effective acceleration requires (1) notice of intent

to accelerate, and (2) notice of acceleration. Id. at 566-67 (citing Shumway v.

Horizon Credit Corp., 801 S.W.2d 890, 892 (Tex. 1991); Ogden v. Gibraltar

Say. Ass'n, 6.W.2d 232, 233 (Tex. 1982)). Both notices must be "clear and

unequivocal." Shumway at 893.

As Appellees’ own summary judgment evidence establishes, the most

recent notice of acceleration was sent to Appellant in a letter from their

attorneys on September 29, 2014. The notice is clear and unequivocal. On

PLAINTIFF’S MOTION TO RECONSIDER THE COURT’S ORDER
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – Page 6
October 31, 2014, Appellant filed an action to stop the foreclosure. That case

was dismissed on July 28, 2016. The Eastern District in the second lawsuit

ruled that the statute of limitations was tolled for a period of 636 days, which is

the period of time that the first lawsuit was pending. Thus, Appellees’ motion

for summary judgment was granted, and Appellant’s statute of limitations claim

was denied because, taking into account the 636 day tolling period, four years

had not expired since the September 2014 acceleration.

While Appellant was expecting a notice of foreclosure any day, when

none had been received in February 2023, he filed this lawsuit, claiming the

statute of limitations had now run, precluding Appellees from a foreclosure sale

or suit to collect on the note. The February 23, 2023 lawsuit, in which the res

judicata defense was found to be a bar to Appellee’s statute of limitations claim,

was filed 32 months after the Final Order issued by the Eastern District was

signed on June 29, 2020. Added to those 32 months are the 24 months the

Magistrate Judge calculated was the time between the first lawsuit being

dismissed on July 28, 2016, and the second lawsuit being filed on September

28, 2018. Thus, the 56 months when the limitations period was not tolled

supports Appellant’s claim that the limitations period has run and Appellees

have lost their right to foreclose on the property or collect on the note.
PLAINTIFF’S MOTION TO RECONSIDER THE COURT’S ORDER
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – Page 7
 The evidence that the limitations period has run is based on the following

facts:

1. Between September 29, 2014, the date the most recent acceleration
was sent to Appellant and the date the first lawsuit was filed on
October 31, 2014, a period of 32 days passed before the foreclosure
sale was enjoined.

2. Between the time the first lawsuit was dismissed on July 18, 2016,
and the second lawsuit was filed on September 28, 2018, a period
of 792 days passed during which no foreclosure sale occurred.

3. Between the time the prior lawsuit was decided on June 29, 2020,
and the filing of this lawsuit on February 23, 2023, a period of 969
days passed during which Appellees took no action to foreclose on
the property or collect on the note.

4. The sum of these days is 1,793 or 57 months and 25 days or well

over 4 years (4 years, 9 months and 25 days) calculated as follows:

a. 1 month and 1 day between 2014 acceleration and first lawsuit;

b. 25 months between dismissal of first lawsuit and filing second
lawsuit; and
c. 31 months and 24 days between final order in second lawsuit
and filing this lawsuit.

Thus, the limitations period has run and Appellees no longer have a right to

foreclose on the property or collect on the note.

D. Conclusion.

Pursuant to the foregoing argument and authorities, Appellees’ res

judicata defense fails because material facts have changed from the facts at issue

PLAINTIFF’S MOTION TO RECONSIDER THE COURT’S ORDER

GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – Page 8
when the Eastern District’s Final Order entered on June 29, 2020. The question

remains, however, did Appellees intentionally and knowingly make a false

claim that the United States Magistrate Judge found that the September 29,

2014, acceleration was abandoned or was it just a mistake by defense counsel.

The answer to that questions is not important to the issue Appellant is asking the

Court to answer. What is important is that no court has determined that the

September 2014 acceleration has been abandoned. Thus, the statute of

limitations began to accrue on September 29, 2014, and the relevant statute of

limitations absolutely bars Appellees’ right to foreclose on the property and

collect on the note.

The order granting Appellees’ Motion for Summary Judgment should be

withdrawn and an order denying their motion for summary judgment should be

issued.

Respectfully submitted,

________________________________
SHARON M. EASLEY
Attorney for Appellant
5900 S. Lake Forest Drive, Suite 200
McKinney, TX 75070
PH: 972-758-9999
FX: 972-692-5628
Email: sharon@dmctx.net

PLAINTIFF’S MOTION TO RECONSIDER THE COURT’S ORDER

GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – Page 9
 Eserve: admin@sharoneasleylaw.com

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above instrument was
served on all counsel of record in accordance with the Texas Rules of Civil
Procedure on March 4, 2024.

____________________________
SHARON M. EASLEY

PLAINTIFF’S MOTION TO RECONSIDER THE COURT’S ORDER

GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT – Page 10