In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-26-00204-CV
IN RE THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW
YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CW
ABS, INC., ASSET-BACKED CERTIFICATES, SERIES 2007-1
Original Proceeding
136th District Court of Jefferson County, Texas
Trial Cause No. D-203632
MEMORANDUM OPINION
This matter was previously before this Court in an appeal from a final
judgment on a jury verdict, and we reversed the trial court’s judgment in part,
rendered judgment in part, and remanded the case for a new trial on liability and
damages, if any, as to only two of the plaintiffs’ claims. We remanded for a new trial
the claim under the Finance Code section 392.304(a)(14) and the plaintiffs’ breach
of contract claim, and we remanded the issue of attorney’s fees, if any. Bank of N.Y.
Mellon v. Hall, No. 09-23-00102-CV, 2025 Tex. App. LEXIS 3526 (Tex. App.—
Beaumont, May 22, 2025, no pet.). On remand in the trial court, the Real Parties in
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Interest David Hall and Teresa Hall (“the Halls”), amended their pleadings to reassert claims on which this Court rendered a take-nothing judgment in the prior
appeal. In this mandamus proceeding, Relator, The Bank of New York Mellon f/k/a
The Bank of New York, as Trustee for the Certificateholders of the CW ABS, Inc.,
Asset-Backed Certificates, Series 2007-1 (“BNYM”), contends the trial court abused
its discretion by refusing to strike the Halls’ Second Amended Petition and limit the
new trial to the two claims we remanded—the breach of contract claim and the claim
for an alleged violation of Section 392.304(a)(14) of the Finance Code. Concluding
the trial court clearly abused its discretion in failing to strike some part of the new
petition and that the Relator lacks an adequate remedy by appeal, we conditionally
grant mandamus relief in part.
Background
We summarized and examined the parties’ disputes and the evidence from the
jury trial at length in our May 2025 opinion and we need not repeat it here. See id.
2025 Tex. App. LEXIS 3526, at **1-63. Briefly, the Halls obtained a $44,800 home
equity loan from New Century Mortgage Company in 2000. Id. at *2. In 2011, the
Halls obtained payoff information from the lender and submitted a check to the loan
servicer at the time. Id. In 2015, the Halls learned the loan servicer made an error
and approximately $19,000 had not been applied to the loan in 2011. Id. The Halls
sued BNYM in 2016, and in 2017, the parties entered into a Rule 11 settlement
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agreement. Id. at **2-3 After receiving and executing a release, the Halls non-suited
their case against BNYM. Id. In 2019, the Halls filed this lawsuit, docketed as Trial
Cause Number D-203632, and went to trial before a jury on their claims against
BNYM for breach of contract, negligent misrepresentation, and violations of the
Texas Debt Collections Act (“TDCA”). The jury found BNYM failed to comply
with the Rule 11 Agreement, that BNYM made false and misleading
misrepresentations, that BNYM made a negligent misrepresentation, and awarded a
total of over one million dollars in damages to the Halls. Id. at *3.
On appeal, BNYM argued (1) the trial court erred in refusing to submit a
question to the jury on whether there was a meeting of the minds by the parties as to
all essential terms of the Rule 11 Agreement; (2) the trial court erred in refusing to
set aside the jury’s verdict regarding the Halls’ claim for negligent misrepresentation
and claim for TDCA violations; (3) that even if the Halls established their right to
recover under the TDCA, the damages awarded for mental anguish, credit injury,
and value of the Agreement as received as compared to as represented were not
supported by legally and factually sufficient evidence; and (4) insufficient evidence
supported the amount of attorney’s fees awarded by the jury. Id. at **73-74.
We reversed the trial court’s judgment. Id. at *112. We held the Halls’
negligent misrepresentation claim was not barred by the economic loss rule because
the negligent misrepresentation claim was based on a separate injury and the
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economic losses were independent of those recoverable under the Halls’ breach of
contract claim. Id. at **78-80. We held, however, that there was legally and factually
insufficient evidence to support any award for past or future economic loss on their
claim of negligent misrepresentation and we rendered a take-nothing judgment on
that claim. Id.
On the Halls’ claims for TDCA violations, we held that because statements
regarding loan modifications do not concern the “character, extent, or amount of
consumer debt[,]” their claim that BNYM used “fraudulent, deceptive, or misleading
representation[s]” prohibited by Finance Code section 392.304(a)(8) fail as a matter
of law, and we rendered a take-nothing judgment on that claim. Id. at *86.
Evidence admitted at trial showed that in July of 2018 BNYM’s counsel told
the Halls’ attorney that BNYM was processing the loan modification, and in reliance
on BNYM’s representations, the Halls continued to send the payment amounts
BNYM told them to pay monthly along with the coupon from the coupon booklet
BNYM provided to the Halls, whereas the evidence at trial established that BNYM
did not decide to book the loan until August of 2021. Id. at *88. We held legally and
factually sufficient evidence supported the Halls’ claim that BNYM “represent[ed]
falsely the status or nature of the services rendered by the debt collector or the debt
collector’s business[]” as prohibited by Finance Code section 392.304(a)(14). Id. at
*87. We held, however, that factually insufficient evidence supported the amount
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awarded by the jury for past mental anguish, and we remanded the case for a new
trial on liability and damages recoverable for the alleged violation of Finance Code
section 392.304(a)(14). Id. at **96-97.
We remanded the case for liability and damages on the Halls’ breach of
contract claim because in their Motion to Enter Judgment they elected to recover
only on their claims for violations of the TDCA and negligent misrepresentation and
not their breach of contract claim. Id. at **111-12. Thus, we held they are entitled
to a new trial to present their claim for breach of contract and the claim for violation
of the TDCA under section 392.304(a)(14) together with applicable damages that
may be recoverable on those claims. Id. at *112. Because we reversed and rendered
on two claims and reversed and remanded on two claims, we reversed and remanded
the attorney’s fee award as well. Id. at **112-13.
Thus, we rendered a take-nothing judgment on the Halls’ claims for negligent
misrepresentation and for a violation of Finance Code section 392.304(a)(8). Id. We
remanded the case for a new trial on liability and damages, if any, as to the claim
under section 392.304(a)(14), we remanded the breach of contract claim for a new
trial on liability and damages, and we remanded the issue of attorney’s fees as to the
remanded claims. Id. at *113.
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The Halls’ Second Amended Petition
The Halls filed a Second Amended Petition after we remanded the case to
the trial court. The petition added “new” factual allegations:
7.18 Since the first trial of this matter, Bank has informed Plaintiffs of
their “new monthly payment,” which payment(s) have been timely
made by Plaintiffs as directed by Bank, only for said payments to be
once again and repeatedly deemed insufficient, such that Plaintiffs
suffer still another rolling default and the late fee penalties and negative
credit reporting associated therewith.
7.19 Additionally, Bank has informed Plaintiffs of escrow shortage(s),
which amount(s) when paid by Plaintiffs as directed by Bank have,
again, been deemed “insufficient,” despite Bank’s initial representation
to the contrary.
7.20 Bank’s serial inability to accurately and/or correctly communicate
the specific amount of debt owed on the Loan including, but not limited
to, the correct monthly payment and/or escrow balance is such that
Plaintiffs do not know the correct, specific amount owed on the Loan.
7.21 Each one of the representations, as described above, was made by
Bank negligently, grossly negligently, and/or recklessly without any
knowledge of the truth as a positive assertion.
7.22 From the time that Bank made these representations, as described
above, Plaintiffs believed them to be true as positive assertions made
by persons with knowledge of their truth. Specifically, that the Loan
Modification (as outlined in the Agreement) was being processed
and/or booked, that Bank had fixed/cured the issue (at or before trial),
and that various payments owed (coupon books, monthly payments,
escrow shortages, etc.) were the correct amounts actually due, such that
Plaintiffs relied, to their detriment, on Bank’s reckless and/or negligent
misrepresentations.
On their claim for breach of contract, in their Second Amended Petition the
Halls allege:
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10.01 Plaintiffs hereby adopt by reference the allegations contained in Section [VII] (“Facts”) hereinabove, and incorporate the allegations as if fully set forth at length herein.
10.02 Bank’s actions as described herein constitute a breach of contract committed upon Plaintiffs in violation of Texas law causing damage to Plaintiffs. Put simply, Bank’s conduct constitutes a breach of the
contract between Plaintiffs and Bank.
10.03 Here, there are two contracts, both of which Bank has breached. The first contract is the Agreement. The second contract is the Loan Modification.
10.04 At all times relevant, Plaintiffs and Bank had entered into the aforementioned contracts, which are attached hereto as Exs. 2 and 4, respectively.
10.05 Plaintiffs fully performed and/or substantially performed
Plaintiffs’ contractual obligations.
10.06 Bank, which accepted the terms of the contracts, [] breached the Contracts by failing to perform as agreed, which failures include, inter alia,:
(i) failing to book the Loan Modification;
(ii) failing to credit Plaintiffs’ cash payments against the
principal balance;
(iii) failing to pay Plaintiff $1,250 within 30 days of the signing
of the Release;
(iv) negatively reporting Plaintiffs’ credit and charging late fees
for payments, which occurred then and continues to occur now
as part of the negative feedback loop(s);
(v) by sending “inspectors” to the Home to assess it for
foreclosure and “beginning to institute foreclosures proceedings”
despite the previous agreement(s); and/or
(vi) other ways to be specified at trial.
10.07 Bank’s breach(es) caused injury to Plaintiffs.
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10.08 Bank’s breach(es) are (were) the proximate and/or producing
cause of Plaintiffs’ damages, such detailed more fully below (§ XIII. DAMAGES); Plaintiffs were also forced to retain the undersigned
attorneys to recover the damages that they have sustained as a result of the breaches of contracts.
10.09 Plaintiffs gave Bank notice as required by TEX. CIV. PRAC. &
REM. CODE § 38.002.10.[]
On their claim that BNYM violated the TDCA, the Halls allege:
11.01 Plaintiffs hereby adopt by reference the allegations contained in Section VII (“Facts”) hereinabove, and incorporate the allegations as if fully set forth at length herein.
11.02 Plaintiffs are “consumers” under the TDCA because the Loan is a consumer debt.
11.03 Bank can be sued under the TDCA because Bank is a debt
collector; additionally, Defendant BONY may be held liable for TDCA violations under a theory of vicarious liability.[]
11.04 Here, Bank violated the TDCA when it committed one or more
wrongful acts in violation of TEX. FIN. CODE § 392.304 against
Plaintiffs including, but not limited to,
(8) misrepresenting the character, extent, or amount of a
consumer debt, or misrepresenting the consumer debt’s status in
a judicial or governmental proceeding;
(14) representing falsely the status or nature of the services
rendered by the debt collector or the debt collector’s business;
and
(19) using any other false representation or deceptive means to
collect a debt.
11.05 These and other acts and/or omissions of Bank (are) were the
proximate and/or a producing cause of Plaintiffs’ damages who were
injured as a result of said acts and/or omissions and which damages are detailed more fully below (§ [XIII]. Damages).
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The Halls’ Second Amended Petition also alleges a claim for negligent
misrepresentation, asserting:
12.02 Plaintiffs do not assert any claim for negligent misrepresentation
for any act/omission that occurred prior to September 2, 2022.
12.03 Since September 2, 2022, Bank has made material
misrepresentation(s) about the Loan Modification, the Cure, the
monthly payments owed to Bank as part of the Loan, and as to escrow
shortages, which representations are independent of any contracts
between the parties herein.
12.04 Bank made these representations in the course of transaction(s)
in which Bank has a pecuniary interest.
12.05 Bank made the representations for the guidance of others, i.e.,
Plaintiffs.
12.06 Bank did not use reasonable care in obtaining/communicat[ing]
the information to Plaintiffs, who actually, justifiably, and reasonably
relied upon Bank’s representations in making payments.
12.07 Bank’s misrepresentation(s) proximately caused injury to
Plaintiffs, which resulted in Plaintiffs’ damages.
BNYM filed a motion to strike Plaintiffs’ Second Amended Petition because
it contains allegations that fall outside the scope of our mandate.
In response, the Halls argued we issued a general remand that allows the Halls
to amend their petition to add additional claims. After a brief non-evidentiary
hearing, the trial court denied BNYM’s motion to strike the Halls’ Second Amended
Petition.
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Mandamus Standard
We may issue a writ of mandamus to remedy a clear abuse of discretion by
the trial court when the relator lacks an adequate remedy by appeal. See In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding);
Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). “A trial
court clearly abuses its discretion if it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law.” Walker, 827
S.W.2d at 839 (internal quotations omitted). A trial court also abuses its discretion
if it fails to correctly analyze or apply the law, because a trial court has no discretion
in determining what the law is or in applying the law to the facts. See In re Prudential
Ins. Co. of Am., 148 S.W.3d at 135; Walker, 827 S.W.2d at 840.
We determine the adequacy of an appellate remedy by balancing the benefits
of mandamus review against the detriments, considering whether extending
mandamus relief will preserve important substantive and procedural rights from
impairment or loss. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig.
proceeding). An appeal is not an adequate remedy if the very act of proceeding to
trial—regardless of the outcome—would defeat the substantive right involved. In re
McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465 (Tex. 2008) (orig. proceeding).
“Mandamus will issue to ensure compliance with this court’s judgment.” Lee v.
Downey, 842 S.W.2d 646, 648 (Tex. 1992) (orig. proceeding).
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Issues and Arguments
BNYM contends the trial court abused its discretion by refusing to strike the
Halls’ Second Amended Petition given the limited nature of our mandate. BNYM
further contends its lacks an adequate appellate remedy due to the trial court’s refusal
to strike the Second Amended Petition, thus forcing BNYM to defend against issues
at trial that are beyond the scope of our limited mandate.
The Halls contend we issued a general mandate that did not expressly prohibit
any amendment to their pleadings. They further contend an appeal provides an
adequate remedy. Finally, they argue laches bars BNYM’s complaint about their
amended pleading.
Analysis
When an appellate court “remands a case and limits a subsequent trial to a
particular issue, the trial court is restricted to a determination of that particular issue.”
Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). The instructions given to a
trial court in the former appeal will be adhered to and enforced. Id. “In interpreting
the mandate of an appellate court, however, the courts should look not only to the
mandate itself, but also to the opinion of the court.” Id. The trial court is authorized
to take all actions that are necessary to give full effect to the appellate court’s
judgment, but the trial court has no authority to take any action that is inconsistent
or beyond the scope of that which is necessary to give full effect to the appellate
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court’s judgment and mandate. Phillips v. Bramlett, 407 S.W.3d 229, 234 (Tex.
2013).
We conclude that the Halls’ Second Amended Petition presents a claim that
is contrary to the scope of our mandate, and the trial court abused its discretion by
refusing to strike that part of the Second Amended Petition that reasserts a claim we
reversed and rendered. Most obvious is the reassertion of a claim under Finance
Code section 392.304(a)(8). We previously held that statements regarding loan
modifications do not concern the “character, extent, or amount of consumer debt[,]”
and the Halls have no claim under Finance Code section 392.304(a)(8), as a matter
of law, and we rendered a take-nothing judgment on that claim. Id. at *86. We
conclude the trial court abused its discretion in failing to strike that section of the
Second Amended Petition. Next, the Second Amended Petition reasserts a claim for
negligent misrepresentation again, even after we rendered a take-nothing judgment
on that claim. Plaintiffs allege in their Second Amended Petition, “Plaintiffs do not
assert any claim for negligent misrepresentation for any act/omission that occurred
prior to September 2, 2022.” And, on appeal the Halls contend that the negligent
misrepresentation claim is a “new claim” because it is based on actions and
misrepresentations that occurred by BNYM after September 2, 2022. Although
BNYM may question whether the Halls will be able to prove the necessary elements
of a “new” negligent misrepresentation claim, we cannot say the trial court abused
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its discretion in failing to strike that claim based solely on what is alleged in the
Halls’ Second Amended Petition.1 We note however, that BNYM may still file
special exceptions to the amended petition to require the Halls to specify the factual
basis for this or any other claim, and should have the opportunity to file a motion for
summary judgment on particular claims, or seek a motion for directed verdict at the
appropriate time if the Halls fail to establish sufficient evidence of any of their
claims.
Citing Simulis, L.L.C. v. Gen. Elec. Cap. Corp., the Halls argue a remand for
further proceedings consistent with the appellate court’s opinion reopens the case
entirely and allows a party to amend their pleadings freely. See 392 S.W.3d 729,
734-35 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). In Simulis, the trial
court granted summary judgment on Simulis’s promissory estoppel and quantum
meruit counterclaims. Id. at 731. The appellate court affirmed the grant of summary
judgment on the promissory estoppel claim because Simulis’s reliance on alleged
promises of future business was unreasonable as a matter of law, but it found a fact
issue precluded summary judgment, reversed that part of the summary judgment,
1
We reject any argument that the Halls’ section 392.304(a)(8) claim should survive because it also is a “new” claim or is based on conduct that occurred after the first trial. Unlike the Halls’ negligent misrepresentation claim which failed because they presented legally insufficient evidence of damages at trial, their section 392.304(a)(8) claim failed because the conduct they allege is not actionable as a matter of law, regardless of how often it occurs.
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and remanded the case for further proceedings consistent with the appellate court’s
opinion. Id. at 731-32. On remand, rather than pursue its quantum meruit claim,
Simulis amended its pleading to add new counterclaims. Id. The trial court granted
special exceptions, then ordered Simulis to amend its pleading to assert a claim for
quantum meruit only, then granted a motion to dismiss the case with prejudice after
Simulis amended its pleading to assert claims other than promissory estoppel and
quantum meruit. Id. at 732. In a second appeal, the court concluded its opinion and
mandate made it clear that two claims were considered on appeal from the grant of
summary judgment, one of which was affirmed and one of which was reversed and
remanded. Id. at 735. The court of appeals explained that because the appellate court
had merely addressed the specific claims presented in the limited summary judgment
record before it, Simulis was free to amend its pleadings to add new claims except
as to those claims on which the appellate court rendered summary judgment. Id. at
735.
In contrast to Simulis, the judgment we reversed in the first appeal was not a
summary judgment, which could only affect claims challenged in the motion for
summary judgment, but a judgment on a jury verdict that adjudicated all claims that
were brought or could have been brought between the parties. We reversed and
rendered judgment for BNYM on certain claims, and we only remanded the breach
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of contract claim and the claim under the Finance Code section 392.304(a)(14),
including the attorney’s fees that might be recoverable on those specific claims.
Citing In re W. Star Trucks US, Inc., the Halls argue a trial court’s decision to
permit an amended pleading is inherently discretionary and not amenable to
mandamus because the relator has an adequate remedy through appeal to seek review
of the denial of the motion to strike. See 112 S.W.3d 756, 763 (Tex. App.—Eastland
2003, orig. proceeding). Here, however, the trial court lacks the discretion to exceed
our mandate on remand. Phillips, 407 S.W.3d at 234.
The Halls argue we should apply the doctrine of laches to deny mandamus
relief because the Halls amended their pleading eight months before BNYM filed its
motion to strike in the trial court. The Halls mentioned the eight-month gap between
the filing of their amended pleading and BNYM’s request to strike that pleading in
their response to the motion to strike, but they did not identify any specific prejudice
that they suffered because of the delay.
Generally, laches requires that a party show an unreasonable delay occurred
and a good faith and detrimental change in position by the real party in interest
resulted from the delay. In re Laibe Corp., 307 S.W.3d 314, 318 (Tex. 2010) (orig.
proceeding). The Halls complain that they drafted discovery requests and filed a
motion to compel discovery on their “new” claims, and they will need to repeat that
effort if they file another lawsuit against BNYM. The delay may have caused the
15
Halls to waste some effort pursuing discovery, but they have not shown that the
delay resulted in a detrimental change in their position. See id. We decline to apply
the doctrine of laches to deny mandamus relief to BNYM.
Mandamus relief is appropriate to spare private parties and the public the time
and money that may be wasted by enduring eventual reversal of improperly
conducted proceedings. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014); In
re Prudential Ins. Co. of Am., 148 S.W.3d at 136. We have already rendered a takenothing judgment on the Halls’ claims for negligent misrepresentation and on the
Halls’ TDCA claims other than their claim under Finance Code section
392.304(a)(14). See Hall, 2025 Tex. App. Lexis 3526, at **112-13. Appeal is not an
adequate remedy considering BNYM will be subjected to another cycle of discovery
and trial before our mandate would be enforced. We conclude the benefits of
mandamus relief outweigh the detriments. See In re Prudential Ins. Co. of Am., 148
S.W.3d at 136.
Conclusion
We conclude that the trial court clearly abused its discretion by denying
BNYM’s motion to strike part of the Second Amended Petition and that the relator
lacks an adequate remedy by appeal. We are confident that the trial court will vacate
its order denying BNYM’s motion to strike the Halls’ Second Amended Petition,
sign an order striking that part of the Halls’ Second Amended Petition that reasserts
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any claim we previously reversed and rendered, and that includes a prohibition on
filing any claim under Finance Code section 392.304(a)(8). That said, we agree the
trial court did not abuse its discretion in denying that part of the motion to strike
which sought to strike any claim for breach of contract or the claim under Finance
Code section 392.304(a)(14), or any alleged new cause of action, if any, that accrued
after the date of the first trial. A writ of mandamus shall issue only in the event the
trial court fails to comply.
PETITION CONDITIONALLY GRANTED IN PART AND DENIED IN
PART.
PER CURIAM
Submitted on June 23, 2026
Opinion Delivered August 27, 2026
Before Johnson, Wright and Chambers, JJ.
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