Roberto Avila Goitia v. PNC Bank., N.A.
CourtTexas Court of Appeals, 4th District (San Antonio)
Date FiledOctober 28, 2026
Docket04-25-00630-CV
StatusPublished
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Full Opinion
Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-25-00630-CV
Roberto Avila GOITIA,
Appellant
v.
PNC BANK., N.A.,
Appellee
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2025-CI-06807
Honorable Cynthia Marie Chapa, Judge Presiding
Opinion by: H. Todd McCray, Justice
Sitting: Lori I. Valenzuela, Justice
Adrian A. Spears II, Justice
H. Todd McCray, Justice
Delivered and Filed: October 28, 2026
AFFIRMED
Appellant Roberto Avila Goitia challenges the trial court’s order granting PNC Bank,
N.A.’s Rule 91a motion to dismiss his cause of action. We affirm.
BACKGROUND
Despite Avila Goitia filing multiple lawsuits and bankruptcies over the years to retain
possession of the real property at issue, the property was ultimately foreclosed in January 2025.
After Avila Goitia refused to vacate the property, PNC filed suit seeking possession and the trial
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court rendered judgment in favor of PNC on March 11, 2025, authorizing Avila Goitia’s eviction.
Avila Goitia’s motion to set aside this judgment was denied on March 25, 2025.
The following day, Avila Goitia filed an “Original Petition for Injunctive Relief” (the
“Petition”), and an “Emergency Motion for Temporary Restraining Order.” Both filings sought
injunctive relief to halt his pending eviction. On May 6, 2025, The trial court denied the motion
for emergency relief, after noting during the hearing that it lacked jurisdiction to grant relief based
on a challenge to the eviction order. 1
On May 7, 2025, PNC filed a motion to dismiss pursuant to Texas Rule of Civil Procedure
91a. On August 15, 2025, the trial court dismissed Avila Goitia’s claims. 2 In this proceeding, Avila
Goitia challenges that dismissal.
APPLICABLE LAW AND STANDARD OF REVIEW
1. Standards for pro se litigants
To start, we first recognize that Appellant is acting pro se on appeal and we must construe
his brief liberally, and with patience. Li v. Pemberton Park Cmty. Ass’n, 631 S.W.3d 701, 706
(Tex. 2021) (per curiam); Matthews v. Matthews, No. 04-16-00609-CV, 2017 WL 4518295, at *1
(Tex. App.—San Antonio Oct. 11, 2017, no pet.) (mem. op.). But even so, the law “is well-settled
that a party proceeding pro se must comply with all applicable procedural rules.” Valadez v. Avitia,
1
In his brief to this Court, Avila Goitia asserts the trial court abused its discretion by denying his motion without a
hearing. However, the record clearly reflects this hearing occurred. Avila Goitia also asserts that his appeal is timely.
This issue was resolved when this court denied PNC’s motion to dismiss on November 21, 2025, on the basis that the
notice of appeal was timely filed.
2
Before that dismissal was granted, Avila Goitia initiated a new lawsuit against PNC by filing an “Original Petition
for Wrongful Foreclosure” on June 6, 2025. In that suit, Avila Goitia asserted the following causes of action: Wrongful
Foreclosure, Trespass to Try Title, Breach of Contract, Fraud, Violation of RESPA, Violation of the Texas Debt
Collection Act, and Negligence and Gross Negligence. The trial court in that matter granted a Rule 91a motion by
PNC on the basis of res judicata. On Avila Goitia’s appeal of that ruling, this Court reversed the trial court’s dismissal
of his claims of wrongful foreclosure and trespass to try title, allowing those claims to proceed on remand. Goitia v.
PNC Bank, N.A., No. 04-25-00604-CV, 2026 WL 2935544, at *5 (Tex. App.—San Antonio Sept. 30, 2026, no pet.
h.).
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238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.); see also Shull v. United Parcel Serv., 4
S.W.3d 46, 52-53 (Tex. App.—San Antonio 1999, pet. denied) (“A pro se litigant is held to the
same standards as licensed attorneys and must comply with applicable laws and rules of
procedure.”). Procedural requirements include proper presentation of a case on appeal as is
similarly required in the trial court. Valadez, 238 S.W.3d at, 845.
2. Briefing rules on appeal
The right to appellate review in Texas extends only to complaints made in accordance with
our rules of appellate procedure, which require an appellant to clearly articulate the issues we will
be asked to decide, to make cogent and specific arguments in support of its position, to cite
authorities, and to specify the pages in the record where each alleged error can be found. TEX. R.
APP. P. 38.1; Lee v. Abbott, No. 05-18-01185-CV, 2019 WL 1970521, at *1 (Tex. App.—Dallas
May 3, 2019, no pet.) (mem. op.); Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893,
895 (Tex. App.—Dallas 2010, no pet.) (rules require appellants to “state concisely the complaint
they may have, provide understandable, succinct, and clear argument for why their complaint has
merit in fact and in law, and cite and apply law that is applicable to the complaint being made
along with record references that are appropriate”). Specifically, Rule 38.1 of the Texas Rules of
Appellate Procedure expressly requires appellant’s brief to contain “a clear and concise argument
for the contentions made, with appropriate citations to authorities and to the record.” TEX. R. APP.
P. 38.1(i). It is not sufficient to satisfy this requirement “by merely uttering brief conclusory
statements unsupported by legal citations[.]” Jonson, 642 S.W.3d at 193. Appellate courts have
“no duty—or even right—to perform an independent review of the record and applicable law to
determine whether there was error.” Martinez v. Ward, 303 S.W.3d 326, 328 (Tex. App.—El Paso
2009, no pet.) (quoting Valadez, 238 S.W.3d at 845). To the extent possible, we address the
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appellate issues Avila Goitia supports with adequate authority and citations to the record. TEX. R.
APP. P. 38.1(i).
3. Rule 91a motion to dismiss
Texas Rule of Civil Procedure 91a provides a party may move to dismiss a cause of action
on the grounds that it has “no basis in law or fact.” TEX. R. CIV. P. 91a.1; Bethel v. Quilling,
Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 654 (Tex. 2020). A claim has no
basis in law “if the allegations, taken as true, together with inferences reasonably drawn from them,
do not entitle the claimant to the relief sought.” TEX. R. CIV. P. 91a.1; Bethel, 595 S.W.3d at 654.
Rule 91a.1 “does not limit the universe of legal theories by which the movant may show that the
claimant is not entitled to relief based on the facts as alleged.” Bethel, 595 S.W.3d at 655. The trial
court “may not consider evidence but must decide the motion based solely on the pleading of the
cause of action, together with any [permitted] pleading exhibits.” In re Farmers Texas Cnty. Mut.
Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding) (quoting TEX. R. CIV. P. 91a.6).
A trial court’s Rule 91a ruling is reviewed de novo. Farmers, 621 S.W.3d at 266
(“[W]hether a defendant is entitled to dismissal under the facts alleged is a legal question.”). Under
our standard of review, we “construe the pleadings liberally in favor of the plaintiff, look to the
pleader’s intent, and accept as true the factual allegations in the pleadings to determine if the cause
of action has a basis in law or fact.” Koenig v. Blaylock, 497 S.W.3d 595, 599 (Tex. App.—Austin
2016, pet. denied). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Vasquez v. Legend Nat. Gas III, LP, 492 S.W.3d 448, 451
(Tex. App.—San Antonio 2016, pet. denied) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 173 L.Ed.2d 868 (2009)).
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ANALYSIS
In his primary issue, Avila Goitia asserts the trial court erred in granting PNC’s motion to
dismiss because “Appellant pled specific, verified facts establishing wrongful foreclosure, dual
tracking, and loss-mitigation violations.” We disagree.
Aside from identifying the parties and presenting a statement on jurisdiction, the Petition
contains only the following assertions and request for relief:
Plaintiff seeks an emergency Temporary Restraining Order (TRO) to halt a Writ of
Possession related to a disputed foreclosure. Plaintiff has suffered wrongful
foreclosure through dual tracking, rejected payments and hardship assistance, and
stands to lose substantial equity and his home through irreparable harm. Plaintiff
requests that the Court grant a TRO, set a hearing for further injunctive relief, and
grant any further relief to which Plaintiff may be justly entitled.
Here, even were we to credit Avila Goitia with attempting to assert a cause of action for wrongful
foreclosure, his conclusory statements fail to assert either the elements of such a claim or factual
allegations giving rise to such a claim.
“The elements of wrongful foreclosure are: (1) a defect in the foreclosure sale proceedings;
(2) a grossly inadequate selling price; and (3) a causal connection between the defect and the
grossly inadequate selling price.” Fresni, Inc. v. Tamir Enterprises, Ltd., No. 04-12-00680-CV,
2013 WL 2247461, at *5 (Tex. App.—San Antonio May 22, 2013, no pet.). Avila Goitia does not
allege that a foreclosure sale has taken place. Bernard v. Bank of Am., N.A., No. 04-12-00088-CV,
2013 WL 441749, at *3 (Tex. App.—San Antonio Feb. 6, 2013, no pet.) (“[T]o recover on a
wrongful foreclosure claim, the property in question must have been sold at a foreclosure sale.”);
Ebrahimi v. Caliber Home Loans, Inc., 05-18-00456-CV, 2019 WL 1615356, at *4 (Tex. App.—
Dallas Apr. 15, 2019, pet. denied) (“Texas law is clear that there is no cause of action in Texas for
attempted wrongful foreclosure.”) (collecting cases). Even if he had alleged a sale, there is no
allegation that there was a defect in those proceedings or that such a defect resulted in grossly
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inadequate selling price. See TEX. PROP. CODE § 51.002 (West Supp.2012) (providing
requirements for notice of sale of real property under contract lien). We conclude Avila Goitia
failed to present factual allegations that established a cause of action.
Avila Goitia also asserts “[t]he dismissal order was entered without notice, without a
hearing, and during a period in which Appellant’s filings were suppressed. The order closely
mirrored Appellee’s proposed language and was entered while Appellant lacked meaningful access
to the court. Such circumstances undermine confidence in the judicial process and constitute a
denial of due process.” Avila Goitia provides neither record citations to support the facts alleged,
nor any case law or argument to support his legal conclusions. Accordingly, we deem these
arguments waived. See Valadez, 238 S.W.3d at 845 (“The failure to cite legal authority or provide
substantive analysis of the legal issue presented results in waiver of the complaint.”). 3
CONCLUSION
Avila Goitia has failed to show the trial court erred in any respect by entering its judgment.
We reach this conclusion after reading his pro se briefing with “liberality and patience.” Li, 631
S.W.3d at 706. The trial court’s judgment is affirmed.
H. Todd McCray, Justice
3
We also recognize that Rule 91a does not require the trial court to conduct a hearing prior to ruling on the motion to
dismiss. See TEX. R. CIV. P. 91a.6 (“The court may, but is not required to, conduct an oral hearing on the motion.”).
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