Amir Foad John Aflatouni AKA Jonathan Aflatouni v. Enclave at Grapevine, L.P., a Texas Limited Partnership

• Court: Court of Appeals of Texas
• Decided: December 20, 2017
• Docket: 02-17-00366-CV
• Status: Published

Opinion

ACCEPTED 02-17-00366-CV SECOND COURT OF APPEALS FORT WORTH, TEXAS 12/20/2017 9:57 AM DEBRA SPISAK CLERK

No. 02-17-00366-CV _____________ FILED IN 2nd COURT OF APPEALS IN THE FORT WORTH, TEXAS 12/20/2017 9:57:14 AM SECOND DISTRICT COURT OF APPEALS DEBRA SPISAK Clerk

AT FORT WORTH, TEXAS

JONATHAN AFLATOUNI,

Appellant,

vs.

ENCLAVE AT GRAPEVINE, L.P.,

Appellee. _____________

Appealed from the 342nd Judicial District Court of Tarrant County, Texas __________________________________________________________________

BRIEF OF APPELLANT JONATHAN AFLATOUNI __________________________________________________________________

PALMER & MANUEL, L.L.P.

By: /s/ Jeffrey R. Sandberg Jeffrey R. Sandberg State Bar No. 00790051 jsandberg@pamlaw.com 8350 N. Central Expressway; Suite 1111 Dallas, Texas 75206 (214) 242-6444/Fax (214) 265-1950 COUNSEL FOR APPELLANT JONATHAN AFLATOUNI

ORAL ARGUMENT REQUESTED No. 02-17-00366-CV _____________

SECOND DISTRICT COURT OF APPEALS

Appellee. ________________________________________________________________

Identity of Parties and Counsel ________________________________________________________________

In order that the members of this Court may determine disqualification and

recusal under Texas Rule of Appellate Procedure 38.1(a), Appellant Jonathan

Aflatouni certifies that the following is a complete list of the parties, attorneys, and

other persons with a financial interest in the outcome of this lawsuit:

i APPELLANT JONATHAN AFLATOUNI (Plaintiff) Represented By: Jeffrey R. Sandberg State Bar No. 00790051 jsandberg@pamlaw.com PALMER & MANUEL, L.L.P. 8350 N. Central Expressway; Suite 1111 Dallas, Texas 75206 (214) 242-6444 Facsimile: (214) 265-1950 (Trial and Appellate Counsel)

APPELLEE ENCLAVE AT GRAPEVINE, L.P (Defendant) Represented By: Margaret “Peg” Donahue Hall Texas Bar No. 05968450 peg.hall@dentons.com Leanna M. Anderson Texas Bar No. 24085833 leanna.anderson@dentons.com Spencer D. Hamilton Texas Bar No. 24087656 spencer.hamilton@dentons.com DENTONS US LLP 2000 McKinney Avenue, Suite 1900 Dallas, TX 75201 Telephone: (214) 259-0900 Facsimile: (214) 259-0910 (Trial and Appellate Counsel)

ii No. 02-17-00366-CV _____________

Appellee.

________________________________________________________________

Request for Oral Argument ________________________________________________________________

Appellant Jonathan Aflatouni hereby requests oral argument in this case. This

appeal involves numerous complex issues, and oral argument will assist Appellant in

the presentation of Appellant’s arguments and responding to questions the Court may

have.

iii TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ..............................................................i

REQUEST FOR ORAL ARGUMENT ................................................................... iii

TABLE OF CONTENTS ..........................................................................................iv

TABLE OF AUTHORITIES ....................................................................................ix

INTRODUCTION ......................................................................................................1

STATEMENT OF THE CASE ..................................................................................2

ISSUES PRESENTED FOR REVIEW .....................................................................3

STATEMENT OF FACTS ........................................................................................4

A. In 2007, Aflatouni Sold the Property to Grapevine Diamond and Aflatouni Reserved a Vendor’s Lien, While City Bank Received a Deed of Trust.................................................................................................5

B. City Bank Knew That Aflatouni Reserved a Vendor’s Lien in the 2007 Deed. .......................................................................................................5

C. When Grapevine Defaulted, City Bank Conducted a Foreclosure Sale of the Property While Aflatouni Was in Bankruptcy, Which is a Violation of the Automatic Bankruptcy Stay. ..................................................................7

D. Aflatouni Notified the Substitute Trustee and City Bank That Aflatouni Filed for Bankruptcy Protection Before the Foreclosure Sale Was Conducted. ...............................................................................................8

E. After City Bank Purchased the Property at the Foreclosure Sale, City Bank Sold the Property to SPK, Which in Turn Sold the Property to Enclave. .........................................................................................9

iv F. Claims Were Brought in the Collin County Case by Grapevine Diamond and Aflatouni Against City Bank, and Aflatouni Did Not Bring Claims Against Grapevine Diamond or the Subsequent Owners – SPK and Enclave..............................................................................................9

G. The Opinion Relied Upon By Enclave Does Not Contain a Holding Regarding the Voidness or Validity of the Foreclosure Sale. ........................10

H. Aflatouni Demanded Payment by Grapevine Diamond After the Lawsuit Against City Bank Was No Longer Pending. ..................................11

SUMMARY OF ARGUMENT ...............................................................................12

BRIEF OF ARGUMENT .........................................................................................14

STANDARD OF REVIEW - SUMMARY JUDGMENT .......................................14

ISSUE ONE (Restated) ............................................................................................15 The Trial Court Erred When It Granted Summary Judgment in Favor of Enclave and Denied Aflatouni’s Motion for Summary Judgment Because It Is Undisputed That Aflatouni is the Owner of An Unpaid Debt Secured by a Vendor’s Lien – Aflatouni Is Entitled to a Judicial Rescission of his Vendor’s Lien. (CR915, 921; App.62, 64)

ARGUMENT AND AUTHORITIES FOR ISSUE ONE ........................................15 A. Aflatouni’s Summary Judgment Evidence Established, and Enclave Did Not Dispute, That Aflatouni Holds a Vendor’s Lien on the Grapevine Diamond Property. .......................................................................15

B. Bank’s Foreclosure Occurred After Aflatouni Filed For Bankruptcy Protection....................................................................................18

C. Aflatouni Notified the Substitute Trustee and City Bank that Aflatouni Filed for Bankruptcy Protection Before the Foreclosure Sale. ......................19

D. Enclave Does Not Dispute That Bank’s Foreclosure Violated the Aflatouni Automatic Bankruptcy Stay Because Aflatouni’s Vendor’s Lien, as Legal Title to the Property, Is Property of the Bankruptcy Estate. ............20

1. Applicable Law – the Bankruptcy Stay Generally. .............................20

v 2. Applicable Law - Because a Second Lienholder’s Lien is a Property Right That is Protected by the Bankruptcy Stay, a Foreclosure Sale of the Real Property that is the Subject of the Lien Is a Violation of the Bankruptcy Stay. ........................................22

a. Three Strokes (N.D. Texas) Unequivocally Holds the Bankruptcy Stay Applies to Second Liens. ...............................22

b. Additional Opinions that Hold a Lienholder’s Security Interest Is a Property Right That Is Protected by the Bankruptcy Stay. .......................................................................23

3. Aflatouni’s Vendor’s Lien Is Legal Title to the Property. ...................25

D. Because the Foreclosure Sale Violated the Bankruptcy Stay, the Correction Foreclosure Deed is Void Either in Its Entirety, or, in the Alternative, as to Aflatouni’s Vendor’s Lien and Aflatouni’s Legal Title. .....................................................................................................26

E. Aflatouni Is Entitled To Rescind Aflatouni’s Vendors’ Lien. .......................27

ISSUE TWO (Restated) ...........................................................................................28 The Trial Court Erred When It Granted Summary Judgment in Favor of Enclave on Enclave’s Collateral Estoppel Because: ((CR; App.)

ARGUMENT AND AUTHORITIES FOR ISSUE TWO .......................................28

A. Applicable Law – Trespass to Try Title.........................................................28

B. Aflatouni Has Superior Title Because the Foreclosure Sale Was Void – City Bank Violated the Bankruptcy Stay.. .....................................................30

ISSUE THREE (Restated) .......................................................................................31 The Trial Court Erred When It Granted Summary Judgment in Favor of Enclave on Aflatouni’s Claim to Quiet Title and Remove Cloud on Title. (CR921; App.64)

ARGUMENT AND AUTHORITIES FOR ISSUE THREE ...................................31 A. Applicable Law – Quiet Title and Remove Cloud on Title. ..........................31

vi B. Aflatouni’s Summary Judgment Evidence Establishes Every Element of Aflatouni’s Title Claims. ...........................................................................33

1. Aflatouni Has Right, Title, or Ownership in the Property. ..................33

2. City Bank’s Corrected Foreclosure Deed, the Special Warranty Deed to SPK and the Warranty Deed to Enclave Are a Cloud on the Title. ...............................................................................................34

3. Enclave’s Claim is Invalid Because the Foreclosure Sale Violated the Automatic Bankruptcy Stay, and Thus the Foreclosure Sale is Void, in Whole or in Part. ....................................34

ISSUE FOUR (Restated) ..........................................................................................37 The Trial Court Erred When It Granted Summary Judgment in Favor of Enclave on Enclave’s Collateral Estoppel Defense Because the Court of Appeals Opinion Never Reached the Issue of Whether City Bank’s Foreclosure Sale Was Void Because the Foreclosure Violated the Automatic Bankruptcy Stay, and Aflatouni Demanded Payment of His Loan After the Collin County Judgment Was Entered and the Dallas Court of Appeals Issued Its Opinion. (CR921; App.64)

ARGUMENT AND AUTHORITIES FOR ISSUE FOUR .....................................37 A. Applicable Law – Collateral Estoppel. ..........................................................37

B. The Court of Appeals Never Held the Foreclosure Sale Was Valid. .............38

C. Res Judicata, If It Had Been Pleaded By Enclave, Is Inapplicable – Aflatouni Demanded Payment in March of 2017 – Long After the Previous Litigation Concluded.......................................................................39

D. SPK and Enclave - the Subsequent Owners After City Bank - Were Not Parties to the Collin County Lawsuit. ............................................................41

PRAYER ..................................................................................................................41

CERTIFICATE OF COMPLIANCE .......................................................................42

CERTIFICATE OF SERVICE ................................................................................43

vii APPENDIX

Pg. # Description

1 CR66: Affidavit of J. Aflatouni

6 CR71: 2007 Special Warranty Deed (Vendor's Lien)

13 CR78: City Bank Letter (Sept.11, 2007)

14 CR79: Aflatouni Bankruptcy Petition (Dec. 6, 2010)

22 CR87: City Bank Notice of Trustee (Foreclosure) Sale (Dec. 10, 2010)

26 CR91: Correction Foreclosure Sale Deed (effective Jan. 4, 2011)

28 CR93: Foreclosure Sale Deed (Jan. 4, 2011)

33 CR98: Order Dismissing Aflatouni Bankruptcy (Jan. 12, 2011

36 CR120: Aflatouni Request for Payment to Grapevine Diamond (March 14, 2017)

37 CR220 - Opinion By Dallas Court of Appeals (Dec. 7, 2015)

62 CR915: Order Granting Enclave Motion for Partial Summary Judgment (May 26, 2017)

64 CR921: Final Judgment (Sept. 27, 2017)

68 Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499 (Tex. 1988).

viii TABLE OF AUTHORITIES

CASES: PAGE

Aguero v. Ramirez, 70 S.W.3d 372 (Tex. App.—Corpus Christi 2002, pet. denied). ...................40

Alkas v. United Sav. Ass'n of Tex., Inc., 672 S.W.2d 852 (Tex. App.—Corpus Christi 1984, writ ref'd n.r.e.)...........31

Arlington v. McClure, No. 02-06-296-CV, 2008 WL 755072 (Tex. App.—Fort Worth June 5, 2008, no pet.). ....................................................................................40

Bell v. Ott, 606 S.W.2d 942 (Tex. Civ. App.—Waco 1980, writ ref'd n.r.e.). .................32

Bradford v. Thompson, 470 S.W.2d 633 (Tex. 1971). .........................................................................26

Bunn v. City of Laredo, 245 S.W. 426 (Tex. Comm’n App. 1922, judgm’t adopted). ..................25, 26

Cardinal Industries, Inc. v. Buckeye Federal Sav. & Loan Ass'n (In re Cardinal Industries, Inc.), 105 B.R. 834 (Bankr. S.D. Ohio 1989). .........................................................24

Centeq Rlty., Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995) ..................................................................14

Chale Garza Invests., Inc. v. Madaria, 931 S.W.2d 597 (Tex. App.—San Antonio 1996, writ ref'd, n.r.e.). .............26

Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499 (Tex. 1988) (copy at App.68). ............................................26

Diversified, Inc. v. Walker, 702 S.W.2d 717 (Tex. App.—Houston [1st Dist.] 1985, writ ref'd n.r.e.).....27

ix Diversified Mortg. Investors v. Lloyd D. Blaylock Gen. Contractor, Inc., 576 S.W.2d 794 (Tex. 1978). ...................................................................30, 31

Dominey v. The Unknown Heirs and Legal Representatives of Linda Lokomski, 172 S.W.3d 67 (Tex. App.—Ft. Worth 2005, no pet.). ...........................15, 25

Ellerd v. Ellison, 165 S.W. 876 (Tex. Civ. App.—Amarillo 1914)...........................................38

Fidelity Mortgage Investors v. Camelia Builders, Inc., 550 F.2d 47 (2nd Cir. 1976)...........................................................................24

Flag-Redfern Oil Co. v. Humble Exploration Co., 744 S.W.2d 6 (Tex. 1987). .......................................................................16, 25

Florey v. Estate of McConnell, 212 S.W.3d 439 (Tex. App.—Austin 2006, pet. denied)...............................32

Florida Institute of Tech. v. Carpenter (In re Westec Corp.), 460 F.2d 1139 (5th Cir. 1972). ................................................................22, 23

General Mills Restaurants, Inc. v. Tex. Wings, Inc., 12 S.W.3d 827 (Tex. App.—Dallas 2000, no pet.). .......................................29

Getty Oil Co. v. Ins. Co. of N. America, 845 S.W.2d 794 (Tex. 1992). ...................................................................38, 39

Gordon v. W. Houston Trees, Ltd., 352 S.W.3d 32 (Tex. App.—Houston [1st Dist.] 2011, no pet.). ..................33

Hahn v. Love, 321 S.W.3d 517 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). ....32, 33

Henke v. First S. Props., Inc., 586 S.W.2d 617 (Tex. Civ. App.—Waco 1979, writ ref'd, n.r.e.). ................27

In re Capital Mortgage & Loan, Inc., 35 B.R. 967 (Bankr. E.D.Ca.1983). .........................................................24, 25

x In re Chesnut, 422 F.3d 298 (5th Cir. 2005). ........................................................................22

In re Cogar, 210 B.R. 803 (B.A.P. 9th Cir. 1997)........................................................23, 25

In re McCarthy, 421 B.R. 550 (Bankr. D. Colo. 2009). ...........................................................21

In re Three Strokes Ltd. Partnership, 397 B.R. 804 (Bankr. N.D. Tex. 2008). .............................................22, 23, 24

Lubbock v. Stubbs, 160 Tex, 111, 327 S.W.2d 411 (1959). ..........................................................38

Lusk v. Mintz, 625 S.W.2d 774 (Tex. App.—Houston [14th Dist.] 1981, no writ). ............27

McCombs v. McKaughan, 195 S.W.2dd 194 (Tex. Civ. App.—Beaumont 1946, writ ref’d). ................38

Maupin v. Chaney, 139 Tex. 426, 163 S.W.2d 380 (1942). .........................................................27

MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986) ......................................................................14

Monumental Life Insur. v. Bibo, Inc. (In re Bibo, Inc.), 200 B.R. 348 (B.A.P. 9th Cir. 1996), appeal dismissed and opinions vacated as moot, 139 F.3d 659 (9th Cir. 1998). ......................................23, 25

Oles v. Curl, 65 S.W.3d 129 (Tex. App.—Amarillo 2001, no pet.)....................................27

Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 509 (Tex. 1995) ..................................................................14

Plumb v. Stuessy, 617 S.W.2d 667 (Tex. 1981). .........................................................................29

xi Poag v. Flories, 317 S.W.3d 820 (Tex. App.—Fort Worth 2010, pet. denied). ......................26

Rogers v. Ricane Enters., Inc., 884 S.W.2d 763 (Tex. 1994). ...................................................................29, 31

Segal v. Rochelle, 382 U.S. 375 (1966). ......................................................................................24

Southwest Guar. Trust Co. v. Hardy Rd. 13.4 Joint Venture, 981 S.W.2d 951 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). ..........32

State v. Forest Lawn Lot Owners Ass'n, 152 Tex. 41, 254 S.W.2d 87 (1953). ........................................................15, 27

Sysco Food Servs. v. Trapnell, 890 S.W.2d 796 (Tex. 1994). .........................................................................38

Thomson v. Locke, 66 Tex. 383, 1 S.W.112 (Tex. 1886). ............................................................32

United States v. Whiting Pools, Inc., 462 U.S. 198 (1983). ................................................................................21, 22

Walton v. First Nat'l Bank of Trenton, 956 S.W.2d 647 (Tex. App.—Texarkana 1997, pet. denied). .......................15

Whirlpool Corp. v. Camacho, 298 S.W.3d 631 (Tex. 2009). .........................................................................29

Whiteside v. Bell, 347 S.W.2d 568 (Tex. 1961). .............................................................27, 28, 39

Wilen v. Falkenstein, 191 S.W.3d 791 (Tex. App.—Fort Worth 2006, pet. denied). ......................29

Wright v. Matthews, 26 S.W.3d 575 (Tex. App.—Beaumont 2000, pet. denied). ..........................32

xii STATUTES AND RULES PAGE

11 U.S.C. § 362 ..................................................................................................21, 23

11 U.S.C. § 541. .......................................................................................................21

TEX. PROP. CODE § 22.001. ......................................................................................29

TEX. R. CIV. P. 166a. ................................................................................................14

xiii No. 02-17-00366-CV _____________

__________________________________________________________________

BRIEF OF APPELLANT JONATHAN AFLATOUNI __________________________________________________________________

TO THE COURT OF APPEALS:

Appellant Jonathan Aflatouni (“Aflatouni” or “Appellant”) submits this

Appellant’s’ Brief. Enclave at Grapevine, L.P. will be referred to as “Enclave” or

“Appellee.”

Grapevine Diamond, L.P. will be referred to as “Grapevine Diamond.” City

Bank will be referred to as “Bank.”

1 STATEMENT OF THE CASE

On September 11, 2015, Aflatouni and Grapevine Diamond filed the Original

Petition against the record holder of the real property, Enclave. (CR51) On March 15,

2017, Aflatouni filed his Amended Petition requesting a judicial foreclosure of

Aflatouni’s vendor’s lien and for property damage on neighboring property owned by

Aflatouni. (CR24)

On April 7, 2017, Aflatouni filed his Motion for Summary Judgment and

Response to Enclave’s Motion for Summary Judgment (“Aflatouni’s MSJ”). (CR41)

On April 12, 2017, Enclave filed its Amended Motion to Dismiss, or, in the

Alternative, Motion for Summary Judgment “Enclave’s MSJ”). (CR187) On April 27,

Aflatouni filed a Response to Enclave’s MSJ (CR259) and Enclave filed a response to

Aflatouni’s MSJ. (CR267)

On May 26, 2017, the trial court entered an Interlocutory Order granting

Enclave’s MSJ, and ruling that Aflatouni take nothing on his vendor lien claims.

(CR915; App.62) Following a settlement of the property damage claim, the trial court

entered a Final Summary Judgment on September 27, 2017. (CR921; App64).

Aflatouni filed a Notice of Appeal on October 24, 2017. (CR926)

1 References to the appellate record will be made as follows: App.- Appendix to Brief CR- Clerk’s Record

2 ISSUES PRESENTED FOR REVIEW

ISSUE ONE The Trial Court Erred When It Granted Summary Judgment in Favor of Enclave and Denied Aflatouni’s Motion for Summary Judgment Because It Is Undisputed That Aflatouni is the Owner of An Unpaid Debt Secured by a Vendor’s Lien – Aflatouni Is Entitled to a Judicial Rescission of his Vendor’s Lien. (CR915, 921; App.62, 64)

ISSUE TWO The Trial Court Erred When It Granted Summary Judgment in Favor of Enclave on Aflatouni’s Trespass to Try Title Claim. (CR921; App.64)

ISSUE THREE The Trial Court Erred When It Granted Summary Judgment in Favor of Enclave on Aflatouni’s Claim to Quiet Title and Remove Cloud on Title. (CR921; App.64)

ISSUE FOUR The Trial Court Erred When It Granted Summary Judgment in Favor of Enclave on Enclave’s Collateral Estoppel Defense Because the Court of Appeals Opinion Never Reached the Issue of Whether City Bank’s Foreclosure Sale Was Void Because the Foreclosure Violated the Automatic Bankruptcy Stay, and Aflatouni Demanded Payment of His Loan After the Collin County Judgment Was Entered and the Dallas Court of Appeals Issued Its Opinion. (CR921; App.64)

3 STATEMENT OF FACTS

While many Briefs represent that the facts are undisputed when they are not, the

facts are genuinely undisputed in this case. Aflatouni established that Aflatouni owns

a Vendor’s Lien on the Property as shown on the 2007 Deed to Grapevine Diamond,

and thus Aflatouni held legal title. Aflatouni also established that Aflatouni is unpaid,

and therefore Aflatouni is entitled to rescind the Vendor’s Lien and take back the

Property. Aflatouni also established that the 2011 foreclosure sale by City Bank

occurred while Aflatouni’s Chapter 13 bankruptcy was pending, and pursuant to

federal case law and multiple Texas Supreme Court opinions, the foreclosure sale

violated the bankruptcy stay and is therefore void. Enclave never disputed these facts

or the basic bankruptcy stay legal principle involved.

Thus, the disagreement between Aflatouni and Enclave, whose title is dependent

upon the validity of the 2011 foreclosure sale, is whether Aflatouni’s prior case against

City Bank (not Grapevine Diamond) and the related Dallas Court of Appeals Opinion

support Enclave’s collateral estoppel defense. Aflatouni is entitled to enforce

Aflatouni’s Vendor’s Lien unless there was a prior holding that the 2011 foreclosure

sale was not a violation of the bankruptcy stay that would support a collateral estoppel

defense (and to be clear, res judicata was not pleaded by Enclave and would be

inapplicable if it was pleaded).

4 A. In 2007, Aflatouni Sold the Property to Grapevine Diamond and Aflatouni Reserved a Vendor’s Lien, While City Bank Received a Deed of Trust.

When Aflatouni sold approximately 10.5 acres of real property (the “Property”)

to Grapevine Diamond in 2007 for $8,500,000.00, Aflatouni retained a vendor’s lien as

shown on the deed (the “Deed”) for the balance of the sales price that Aflatouni was

not paid - $2,741,760.51. (CR66, App.1; CR71, App.6 – 2007 Deed) In addition, City

Bank financed the purchase by Grapevine Diamond in part by lending $6,375,000.00

and City Bank received a Deed of Trust from Grapevine Diamond. (CR71, 73; App.6,

8 – 2007 Deed)

A Special Warranty Deed (Vendor’s Lien) (the “Deed”) was received by

Grapevine Diamond when it purchased the Property. (CR66, App.1; CR74, App.9 -

Deed) The Deed states the Vendor, the Aflatounis, retained a Vendor’s Lien when the

Property was sold to Grapevine Diamond. (CR66, 71; App.1, 6) The Vendor’s Lien

and superior title was retained by the Vendor until the City Bank debt and the Second

Lien Note were paid by Grapevine Diamond. (CR66, 73-74; App.1, 8-9) The Vendor’s

Lien was subordinated to City Bank’s debt until the City Bank debt was paid by

Grapevine Diamond. (CR66, 74; App.1, 9)

B. City Bank Knew That Aflatouni Reserved a Vendor’s Lien in the 2007 Deed.

Aflatouni and Grapevine Diamond communicated to City Bank, before the real

property was sold to Grapevine Diamond, that Grapevine Diamond would be providing

5 additional consideration to Aflatouni of $2,740,700.51 at the time of the closing.

(CR67; App.2) In response, on or about September 11, 2007, City Bank sent a letter to

the Fidelity Title, Inc. Escrow Officer (the “City Bank Letter”). (CR 67, App.2; CR78;

App.13 – City Bank Letter) The City Bank Letter states that City Bank knew on

September 11, 2007, which was before the closing on September 12, 2007, that

Jonathan Aflatouni would be entitled to receive $2,740,700.51 at the closing, but that

he may not actually receive the cash at closing. (CR67, 78; App.2, 13)

As part of the closing on September 12, 2007, Grapevine Diamond received a

loan from Jonathan Aflatouni in the amount of $2,741,760.51 as reflected on the

Settlement Statement as part of the purchase price for the Property. (CR68; App.3)

This loan was to be paid off on demand, which was to be no earlier that when

Grapevine Diamond sold the property or developed the property itself. (CR68; App.3)

This loan accrued interest at an annual rate of 7.00% simple interest. (CR69; App.4)

On July 19, 2013, Youval Zive, in his capacity as President of Danjon, Inc., Grapevine

Diamond’s general partner, executed a Replacement Promissory Note reflecting the

terms of the original promissory note. (CR69, App.4; CR101) This loan has not been

repaid. (CR70)

City Bank did not dispute that Aflatouni loaned Grapevine Diamond the $2.7

million when Grapevine Diamond purchased the Property in 2007. (CR162) Further,

6 Wilcox admitted that Aflatouni was not a partner in Grapevine Diamond, and that City

Bank’s letter stated that Aflatouni was not a partner. (CR162).

City Bank’s designee, Wilcox, testified that his understanding was that the use

of the two words “Vendor’s Lien” on the first page of the Special Warranty Deed

immediately below the title “Special Warranty Deed” was an indication that the

vendors held a lien on the Property. (CR154-55; CR172 -Wilcox Depo, Exh. 6, 2007

Deed) The bank would typically have the deed in its file when it makes a loan to buy

property – the Special Warranty Deed would be included in the closing documents.

(CR155-56)

C. When Grapevine Defaulted, City Bank Conducted a Foreclosure Sale of the Property While Aflatouni Was in Bankruptcy, Which is a Violation of the Automatic Bankruptcy Stay.

On December 6, 2010, Jonathan Aflatouni filed an Original Petition (the

“Aflatouni Bankruptcy”) in the Bankruptcy Court of the Northern District of Texas

under chapter 13, in cause no. 10-38538-sgj13 (the “Aflatouni Bankruptcy Petition”).

(CR67, App.2; CR79, App.14 - Aflatouni Bankruptcy Petition)

On or about December 9, 2010, while Aflatouni’s bankruptcy case was pending

and thus in violation of the automatic bankruptcy stay, City Bank filed its Notice of

Foreclosure Sale (the “Foreclosure Notice”) for a January 4, 2011 sale of the property

owned by Grapevine Diamond and the subject of Aflatouni’s Vendor’s Lien. (CR67,

App.67; CR87, App22 - Foreclosure Notice)

7 On or about January 4, 2011, while Aflatouni’s bankruptcy case was pending

and in violation of the automatic bankruptcy stay, a substitute trustee appointed by City

Bank conducted a foreclosure sale of the property owned by Grapevine Diamond, L.P.

and the subject of Aflatouni’s second-priority vendor’s lien. (CR67, App3; CR91,

App.26 - Correction Foreclosure Sale Deed) While Aflatouni’s bankruptcy case was

pending and in violation of the automatic bankruptcy stay, City Bank recorded its

Correction Foreclosure Deed in the real property records of Tarrant County, Texas on

or about January 12, 2011. (CR91, App.26 - Correction Foreclosure Sale Deed)

On January 14, 2011, an Order Dismissing Chapter 13 Case (the “Bankruptcy

Dismissal Order”) was entered in the Aflatouni Bankruptcy. (CR68, App.3; CR98;

App.33 - Order Dismissing Chapter 13 Case and Notice of Dismissal)

D. Aflatouni Notified the Substitute Trustee and City Bank That Aflatouni Filed for Bankruptcy Protection Before the Foreclosure Sale Was Conducted.

City Bank’s designee, Wilcox, admitted that City Bank knew that Aflatouni filed

for bankruptcy protection on December 6, 2011 around the time the bankruptcy

petition was filed. (CR163) Jonathan Aflatouni attended the foreclosure sale on

January 4, 2011. (CR68; App.3) Before the sale began, Jonathan Aflatouni informed

the substitute trustee conducting the foreclosure sale of the Property, and also the City

Bank employee that was present at the sale, that Jonathan Aflatouni had filed for

bankruptcy protection. (CR68; App.3) The substitute trustee and the City Bank

8 employee told Jonathan Aflatouni that Jonathan Aflatouni’s filing for bankruptcy

protection was unimportant. (CR68; App.3)

E. After City Bank Purchased the Property at the Foreclosure Sale, City Bank Sold the Property to SPK, Which in Turn Sold the Property to Enclave.

Enclave claims title based upon: (1) a Deed of Trust executed by Grapevine

Diamond, L.P. in favor of City Bank on or about September 10, 2007 and foreclosure

sale (CR91, App.26 - Correction Foreclosure Sale Deed); (2) a Special Warranty Deed

executed by City Bank to SPK Land Acquisition, LLC (“SPK”) (CR102 - Special

Warranty Deed to SPK); and (3) a Warranty Deed executed by SPK to Enclave(CR112

- Warranty Deed by SPK to Enclave).

F. Claims Were Brought in the Collin County Case by Grapevine Diamond and Aflatouni Against City Bank, and Aflatouni Did Not Bring Claims Against Grapevine Diamond or the Subsequent Owners - SPK and Enclave.

On September 29, 2011, City Bank executed the Special Warranty Deed to SPK

Land Acquisition, LLC (CR102 - Special Warranty Deed to SPK). On October 5,

2012, SPK executed a Warranty Deed to Enclave (CR112 - Warranty Deed by SPK to

Enclave). SPK and Enclave are not parties to the Dallas appeal. (CR220; App.37)

Aflatouni’s Motion for Summary Judgment filed in the Collin County case, the Order

granting City Bank’s Motion for Summary Judgment and the Final Judgment (these

three documents are included as exhibits to Enclave’s MSJ Response), shows that SPK

9 and Enclave are not parties to the Collin County case. (CR288, 364, 367) There is no

mention of a claim by Aflatouni to rescind the vendor’s lien in these documents.

G. The Opinion Relied Upon By Enclave Does Not Contain a Holding Regarding the Voidness or Validity of the Foreclosure Sale.

Enclave’s Motion for Summary Judgment relies upon three exhibits: (1) the

Interlocutory Order granting City Bank’s Motion for Summary Judgment (CR217); (2)

the Opinion of the Dallas Court of Appeals (CR220; App.37); and (3) the United States

Supreme Court’s letter stating that the petition for writ of certiori was denied. (CR246)

The Interlocutory Order and Opinion relied upon by Enclave contain no holding

regarding the voidness or validity of the foreclosure sale. (CR217; CR220, App.37 –

Opinion) Instead, the Court of Appeals held that there was “no equity in the property”

(CR230, App.47 – Opinion) and that “no summary judgment evidence that the

property’s value exceeded the amount stated on Grapevine Diamond’s bankruptcy

schedules, and the property was sold for less than the amount of City Bank’s secured

claim” (CR231, App.48 – Opinion) As a result, the Court of Appeals overruled the

“portions . . . of the issues alleging that summary judgment for City Bank was

improper because the foreclosure sale allegedly violated the stay in Aflatouni’s

bankruptcy.” (CR231, App.48 – Opinion)

10 H. Aflatouni Demanded Payment by Grapevine Diamond After the Lawsuit Against City Bank Was No Longer Pending.

Notably, Aflatouni did not demand payment upon the debt that is secured by the

Vendors’ Lien until March of 2017 (and long after the Court of Appeals Opinion relied

upon by Enclave). (CR70, App.5; CR120, App.36 - Demand for Payment) The

purchase money has not been paid. (CR70, App.5)

11 SUMMARY OF ARGUMENT

Aflatouni indisputably is the owner of Aflatouni’s Vendor’s Lien as shown on

the 2007 Deed so that Aflatouni held legal title, and Aflatouni is unpaid. The

undisputed evidence is that City Bank’s posting of the property for foreclosure and the

foreclosure sale itself occurred while Aflatouni’s bankruptcy was pending, violating

the automatic stay in Aflatouni’s bankruptcy. Because the foreclosure sale was a

violation of the automatic bankruptcy stay, the sale is void as to Aflatouni’s Vendor’s

Lien and Aflatouni’s legal title in the Property.

Next, because a void deed does not transfer title to the grantee (City Bank) – the

foreclosure sale deed to City Bank is “without vitality or legal effect” as stated in this

Court’s Poag opinion. Because City Bank lacked title, the subsequent deed form City

Bank to SPK, and the deed from SPK to Enclave, also did not convey title.

Faced with the fact that Enclave wholly lacked title, City Bank bootstrapped a

collateral estoppel defense based upon the Collin County case. Tellingly, while

Enclave’s Motion for Summary Judgment refers to its summary judgment ground as

being a collateral estoppel defense, Enclave does not identify the “identical issue”

already decided in the Collin County litigation. (CR206 – Enclave MSJ ¶ 8) Instead,

Enclave merely asserts that the Collin County cause of action and the current cause of

action both involved City Bank’s violation of the automatic bankruptcy stay. (CR208 –

Enclave MSJ ¶ 14) Put simply, while both cases involved this issue, Enclave wholly

12 fails to point the trial court in the present case exactly where this issue was decided

against Aflatouni. The reason is simple - it wasn’t. As a result, Enclave’s collateral

estoppels defense fails.

Further, while Enclave wisely chose not to argue res judicata barred Aflatouni’s

claims, this is essentially what Enclave is really arguing here. Notably, because

Aflatouni did not demand payment from Grapevine Diamond until March 2017, which

is after the Collin County litigation and appellate process concluded, Aflatouni’s cause

of action against Grapevine Diamond did not accrue before the Final Judgment was

entered in the Collin County litigation.

13 BRIEF OF ARGUMENT

STANDARD OF REVIEW - SUMMARY JUDGMENT

The movant is entitled to summary judgment if it shows there is no genuine

issue as to a material fact and the movant is entitled to judgment as a matter of law.

TEX. R. CIV. P. 166a(c). A plaintiff-movant is entitled to summary judgment on its

cause of action if it establishes all the elements of its cause of action. MMP, Ltd. v.

Jones, 710 S.W.2d 59, 60 (Tex. 1986).

A defendant-movant is entitled to summary judgment if it establishes all the

elements of its defense or disproves one element of the plaintiff’s cause of action. See

Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 509 (Tex. 1995). If a defendant-

movant disproves as a matter of law an element of the plaintiff’s cause of action, the

defendant is entitled to summary judgment unless the plaintiff can either identify a fact

issue in the elements the defendant negated or create a fact issue by producing

controverting evidence that raises a fact issue on one of the elements the defendant

negated. See Centeq Rlty., Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

14 ISSUE ONE

(Restated)

The Trial Court Erred When It Granted Summary Judgment in Favor of Enclave and Denied Aflatouni’s Motion for Summary Judgment Because It Is Undisputed That Aflatouni is the Owner of An Unpaid Debt Secured by a Vendor’s Lien – Aflatouni Is Entitled to a Judicial Rescission of his Vendor’s Lien. (CR915, 921; App.62, 64)

ARGUMENT AND AUTHORITIES FOR ISSUE ONE

A. Aflatouni’s Summary Judgment Evidence Established, and Enclave Did Not Dispute, That Aflatouni Holds a Vendor’s Lien on the Grapevine Diamond Property.

The undisputed facts establish that Aflatouni retained a vendor’s lien when the

Property was sold to Grapevine Diamond – the 2007 Deed expressly reserved a

vendor’s lien. (CR71; App.6) A grantor’s express reservation of title in a deed is

sufficient to create a vendor’s lien and reserve superior legal title. State v. Forest Lawn

Lot Owners Ass'n, 152 Tex. 41, 254 S.W.2d 87 (1953); Walton v. First Nat'l Bank of

Trenton, 956 S.W.2d 647, 650 (Tex. App.-Texarkana 1997, writ denied). Superior title

is held by the vendor where an express vendor's lien is retained to secure unpaid

purchase money, and the vendee has a mere equitable right to acquire title by carrying

out the agreement. State v. Forest Lawn Lot Owners Ass'n, 152 Tex. 41, 254 S.W.2d

87, 91 (1953); Dominey v. The Unknown Heirs and Legal Representatives of Linda

Lokomski, 172 S.W.3d 67, 74 (Tex. App.—Ft. Worth 2005, no pet.). “[I]f a vendor's

15 lien encumbers the land, legal title does not pass to the vendee.” Flag-Redfern Oil Co.

v. Humble Exploration Co., 744 S.W.2d 6, 8 (Tex. 1987).

A Special Warranty Deed (Vendor’s Lien) (the “Deed”) was received by

Grapevine Diamond when it purchased the Property. (CR66, App.1; CR71, App.6 -

2007 Deed) The Deed states the Vendor, the Aflatounis, retained a Vendor’s Lien

when the Property was sold to Grapevine Diamond. (CR66, App.1; CR71, App.6 -

2007 Deed) The Vendor’s Lien and superior title was retained by the Vendor until the

City Bank debt and the Second Lien Note were paid by Grapevine Diamond. (CR66,

App.1; CR73-74, App.8-9 - 2007 Deed) The Vendor’s Lien was subordinated to City

Bank’s debt until the City Bank debt was paid by Grapevine Diamond. (CR66, App.1;

CR74, App.9 - 2007 Deed)

Aflatouni and Grapevine Diamond communicated to City Bank, before the real

property was sold to Grapevine Diamond, that Grapevine Diamond would be providing

additional consideration to Aflatouni of $2,740,700.51 at the time of the closing.

(CR67) In response, on or about September 11, 2007, City Bank sent a letter to the

Fidelity Title, Inc. Escrow Officer (the “City Bank Letter”). (CR67, App.2; CR78,

App.13 - City Bank Letter) The City Bank Letter states that City Bank knew on

September 11, 2007, which was before the closing on September 12, 2007, that

Jonathan Aflatouni would be entitled to receive $2,740,700.51 at the closing, but that

16 he may not actually receive the cash at closing. (CR67, App.2; CR78, App.13 - City

Bank Letter)

As part of the closing on September 12, 2007, Grapevine Diamond received a

loan from Jonathan Aflatouni in the amount of $2,741,760.51 as reflected on the

Settlement Statement as part of the purchase price for the Property. (CR68:App.3)

This loan was to be paid off on demand, which was to be no earlier that when

Grapevine Diamond sold the property or developed the property itself. (CR68; App.3)

This loan accrued interest at an annual rate of 7.00% simple interest. (CR69; App.4)

On July 19, 2013, Youval Zive, in his capacity as President of Danjon, Inc., Grapevine

Diamond’s general partner, executed a Replacement Promissory Note reflecting the

terms of the original promissory note. (CR69, App.4; CR101) This loan has not been

repaid, and Aflatouni demanded payment on March 14, 2017. (CR70, App.5; CR120,

App.36 – Aflatouni Request for Payment)

City Bank did not dispute that Aflatouni loaned Grapevine Diamond the $2.7

million when Grapevine Diamond purchased the Property in 2007. (CR162) Further,

Wilcox admitted that Aflatouni was not a partner in Grapevine Diamond, and that City

Bank’s letter stated that Aflatouni was not a partner. (CR162)

City Bank’s designee, Wilcox, testified that his understanding was that the use

of the two words “Vendor’s Lien” on the first page of the Special Warranty Deed

immediately below the title “Special Warranty Deed” was an indication that the

17 vendors held a lien on the Property. (CR154-55; CR172 - Wilcox Depo, Exh. 6, 2007

Deed) The bank would typically have the deed in its file when it makes a loan to buy

property – the Special Warranty Deed would be included in the closing documents.

(CR154-55) Wilcox also admitted that City Bank’s title insurer understood, based upon

the title policy document, that a vendor’s lien was being retained. (CR158-59; CR177

- Wilcox Depo. Exh. 11, Title Policy)

Aflatouni’s summary judgment evidence establishes as a matter of law that

Aflatouni holds a vendor’s lien on the Property.

B. Bank’s Foreclosure Occurred After Aflatouni Filed For Bankruptcy Protection.

In summary, the undisputed evidence establishes that after Aflatouni filed his

bankruptcy petition and that before the Aflatouni bankruptcy proceeding was

dismissed, City Bank posted the Property for foreclosure and City Bank’s substitute

trustee conducted a foreclosure sale.

On December 6, 2010, Jonathan Aflatouni filed an Original Petition (the

“Aflatouni Bankruptcy”) in the Bankruptcy Court of the Northern District of Texas

under chapter 13, in cause no. 10-38538-sgj13 (the “Aflatouni Bankruptcy Petition”).

On or about December 9, 2010, in violation of the automatic bankruptcy stay,

City Bank filed its Notice of Foreclosure Sale (the “Foreclosure Notice”) for a January

18 4, 2011 sale of the property owned by Grapevine Diamond, L.P. and the subject of

Aflatouni’s second-priority vendor’s lien. (CR67, App.2; CR87, App.22 - Foreclosure

Notice)

On or about January 4, 2011, in violation of the automatic bankruptcy stay, a

substitute trustee appointed by City Bank conducted a foreclosure sale of the property

owned by Grapevine Diamond, L.P. and the subject of Aflatouni’s second-priority

vendor’s lien. (CR68; App.3; CR91, App.26 - Correction Foreclosure Sale Deed. City

Bank recorded its Foreclosure Sale Deed on January 5, 2011 (CR.93; App.28) and City

Bank’s Correction Foreclosure Deed in the real property records of Tarrant County,

Texas on or about January 12, 2011. (CR91; App.26 - Correction Foreclosure Sale

Deed.

On January 14, 2011, an Order Dismissing Chapter 13 Case (the “Bankruptcy

Dismissal Order”) was entered in the Aflatouni Bankruptcy. (CR68; App.3; CR98,

App.33 - Order Dismissing Chapter 13 Case and Notice of Dismissal)

C. Aflatouni Notified the Substitute Trustee and City Bank that Aflatouni Filed for Bankruptcy Protection Before the Foreclosure Sale.

City Bank knew that Aflatouni filed for bankruptcy protection on December 6,

2011 around the time the bankruptcy petition was filed. (CR163) Jonathan Aflatouni

attended the foreclosure sale on January 4, 2011. (CR68; App.3) Before the sale

began, Jonathan Aflatouni informed the substitute trustee conducting the foreclosure

19 sale of the Property, and also the City Bank employee that was present at the sale, that

Jonathan Aflatouni had filed for bankruptcy protection. (CR68; App.3) The substitute

trustee and the City Bank employee told Jonathan Aflatouni that Jonathan Aflatouni’s

filing for bankruptcy protection was unimportant. (CR68; App.3)

D. Enclave Does Not Dispute That Bank’s Foreclosure Violated the Aflatouni Automatic Bankruptcy Stay Because Aflatouni’s Vendor’s Lien, as Legal Title to the Property, Is Property of the Bankruptcy Estate.

Indisputably, City Bank filed its Notice of Foreclosure Sale and the substitute

trustee conducted the foreclosure sale following the date that Aflatouni filed his

Original Petition in the Bankruptcy Court, and while Aflatouni’s bankruptcy

proceeding was pending. Enclave’s Motion for Summary Judgment does not argue

otherwise. (CR187)

1. Applicable Law – the Bankruptcy Stay Generally.

Subject to limited exceptions not relevant here, upon the commencement of a

debtor's bankruptcy case, section 362(a) of the Bankruptcy Code operates as a stay,

applicable to all entities, of (in pertinent part):

(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;

(4) any act to create, perfect, or enforce any lien against property of the estate;

(5) any act to create, perfect, or enforce against property of the debtor any lien to the extent such lien secures a claim that arose before the commencement of the case under [the Bankruptcy Code];

20 11 U.S.C. §362(a)(3) – (5). “The scope of this paragraph [§ 541(a)(1)] is broad. It

includes all kinds of property, including tangible or intangible property, causes of

action ... and all other forms of property.” United States v. Whiting Pools, Inc., 462

U.S. 198, 205 n.9 (1983) (citing legislative history of Section 541). The scope of the

automatic stay is extremely broad, and it forecloses a range of activities aimed at

collecting a debt, including threats of immediate action by creditors. In re McCarthy,

421 B.R. 550, 565 (Bankr. D. Colo. 2009).

Bankruptcy Code section 541(a) contains an expansive definition of property of

a debtor's estate. 11 U.S.C. § 541(a); United States v. Whiting Pools, Inc., 462 U.S.

198, 205 n.9 (1983) (“The scope of this paragraph [§ 541(a)(1)] is broad. It includes all

kinds of property, including tangible or intangible property, causes of action ... and all

other forms of property ....”) (citing legislative history of Section 541). In bankruptcy

contexts, "the term 'property' has been construed most generously and an interest is not

outside its reach because it is novel or contingent or because enjoyment must be

postponed." Segal v. Rochelle, 382 U.S. 375, 379 (1966).

21 2. Applicable Law - Because a Second Lienholder’s Lien is a Property Right That is Protected by the Bankruptcy Stay, a Foreclosure Sale of the Real Property that is the Subject of the Lien Is a Violation of the Bankruptcy Stay.

a. Three Strokes (N.D. Texas) Unequivocally Holds the Bankruptcy Stay Applies to Second Liens.

A lien secured by real property and held by a debtor that has filed a bankruptcy

case “is, indeed, a property interest that triggers the protection of the automatic stay. It

is a property interest as contemplated under Section 541 of the Bankruptcy Code.” In

re Three Strokes Ltd. Partnership, 397 B.R. 804 (Bankr. N.D. Tex. 2008) (citing

Whiting Pools, Inc., 462 U.S. at 205 n.9.).

In In re Three Strokes, the Honorable Judge Jernigan addressed a situation

similar to the one at hand - a senior lienholder attempted to foreclose on property that

was subject to the debtor's junior lien. Judge Jernigan, relying on Fifth Circuit

authority,2 unequivocally held that a foreclosure by a first lienholder on property that is

2 Florida Institute of Tech. v. Carpenter (In re Westec Corp.), 460 F.2d 1139, 1142 (5th Cir. 1972) "Certainly, this [lienholder] interest constitutes `property' within the meaning of Sections 111 and 148 of the Bankruptcy Act, as `property' can constitute something other than fee ownership"); In re Chesnut, 422 F.3d 298, 303 (5th Cir. 2005) (property that could arguably have been community property at the time of a foreclosure sale violated the automatic stay resulting from the husband’s bankruptcy, even though the property might ultimately be determined to be the wife’s separate property).

22 the subject of a second lien held by a bankruptcy debtor is automatically stayed – the

second lien is property of the bankruptcy estate3:

To reiterate, the Arizona Property itself is certainly not property of the estate, but the second lien interest of the Debtor in that property is a property interest worthy of recognition and protection. Thus, Section 362 applies to automatically stay the foreclosure proceedings. The foreclosure proceedings could have the effect of extinguishing the Debtor's second lien interest. The foreclosure proceedings would constitute an exercise of control over property of the estate, pursuant to Bankruptcy Code Section 362(a)(3). The court recognizes that . . . Conseco [the senior lienholder] is not a creditor of this Debtor. However, Section 362(a) is worded to prevent “all entities” (not merely creditors) from engaging in certain acts including “an act ... to exercise control over property of the estate.” 11 U.S.C. § 362(a)(3).

Id., at 807 (emphasis added).

b. Additional Opinions that Hold a Lienholder’s Security Interest Is a Property Right That Is Protected by the Bankruptcy Stay.

Unsurprisingly, there are a number of opinions whose holdings are consistent

with Three Strokes – a foreclosure sale that would wipe out a second lien held by a

bankrupt debtor is a violation of the automatic stay. In re Westec Corp., 460 F.2d at

1142 (holding that taxing authorities’ foreclosure proceedings as to underlying real

property violated the automatic stay in a lienholder’s bankruptcy); Monumental Life

3 Similarly, the Ninth Circuit holds a debtor’s lien interest is property of the bankruptcy estate:

[A] bankruptcy estate is comprised of all legal and equitable interest in debtor’s property as of the filing of the bankruptcy petition. Therefore, since a lien is considered a beneficial or equitable interest in property, and it was in existence prior to the debtor’s filing bankruptcy, the lien interest is considered part of the bankruptcy estate.

In re Cogar, 210 B.R. 803, 809 (B.A.P. 9th Cir. 1997) (cit. omitted).

23 Insur. v. Bibo, Inc. (In re Bibo, Inc.), 200 B.R. 348 (B.A.P. 9th Cir. 1996), appeal

dismissed and opinions vacated as moot, 139 F.3d 659 (9th Cir. 1998) (debtor’s

interest as junior deed of trust holder was included in property of the estate and senior

lienholder’s proposed foreclosure was attempt to exercise control over property of

debtor in violation of the automatic stay).

Further, courts considering the scope of the automatic stay have applied it

broadly. Fidelity Mortgage Investors v. Camelia Builders, Inc., 550 F.2d 47 (2nd Cir.

1976) (citing Segal, 382 U.S. at 379-81) (security interest under a deed of trust was a

property interest for the purposes of the bankruptcy statutes and within the scope of the

bankruptcy stay).

The Three Strokes opinion cites to additional cases holding a lien is “property”

that is subject to the bankruptcy stay. Three Strokes, 397 B.R. at 807 (citing In re

Capital Mortgage & Loan, Inc., 35 B.R. 967 (Bankr. E.D.Ca.1983) (holding that a

senior lien holder's cancellation of a loan to third party trustors and taking of a

quitclaim deed from the trustors in lieu of foreclosure violated the automatic stay of the

junior lien holder, who was a debtor in bankruptcy)); Cardinal Industries, Inc. v.

Buckeye Federal Sav. & Loan Ass'n (In re Cardinal Industries, Inc.),105 B.R. 834

(Bankr. S.D. Ohio 1989) (finding that the debtor's unrecorded second mortgage interest

became property of the estate upon the debtor's bankruptcy filing and protected by the

automatic stay from the first mortgage holder's foreclosure of its lien)).

24 Similarly, the Ninth Circuit has held that a debtor’s lien interest is property of

the bankruptcy estate:

Under § 541(a), at the time a debtor files bankruptcy, all of the debtor’s property becomes property of the bankruptcy estate. Taylor v. Freeland & Kronz, 503 U.S. 638, 642, 112 S.Ct. 1644, 1647-48, 118 L.Ed.2d 280 (1992). Property is defined broadly and includes “charges on property, such as liens held by the debtor on property of a third party, or beneficial rights and interest that the debtor may have in property of another.” 124 Cong.Rec. H11,096 (daily ed. Sept. 28, 1978) (Statement of Rep. Edwards); In re Bialac, 712 F.2d 426, 431 (9th Cir.1983) .

***

[A] bankruptcy estate is comprised of all legal and equitable interest in debtor’s property as of the filing of the bankruptcy petition. Therefore, since a lien is considered a beneficial or equitable interest in property, and it was in existence prior to the debtor’s filing bankruptcy, the lien interest is considered part of the bankruptcy estate.

In re Cogar, 210 B.R. 803, 809 (B.A.P. 9th Cir. 1997) (emphasis added) (citing

Capital Mortg., 35 B.R. at 970; Bibo, 200 B.R. at 350.

3. Aflatouni’s Vendor’s Lien Is Legal Title to the Property.

Again, “if a vendor's lien encumbers the land, legal title does not pass to the

vendee.” Flag-Redfern Oil Co., 744 S.W.2d at 8; see Dominey, 172 S.W.3d at 74.

Aflatouni is the owner of the Vendor’s Lien and thus holds legal title. (CR68-69;

App.3-4; CR71, App.71 – 2007 Deed) The court in Bunn v. City of Laredo, 245 S.W.

426, 429 (Tex. Comm’n App. 1922, judgm’t adopted), said:

It has been the uniform holding of our courts from the earliest times that, however absolute may be the terms of such conveyance, the contract of sale is

25 treated as executory between the vendor and vendee and those holding under them until the purchase money is fully satisfied; and that, in addition to all other remedies to enforce payment of the purchase money, the vendor has the alternative remedy, so long as the purchase money is not paid, to rescind the contract of sale and recover the land upon the strength of his superior title as an unsatisfied vendor. This remedy to rescind and resort to the superior legal title has uniformly been held to be separate and distinct from and wholly independent of the remedy to subject the land to the payment of the purchase money by sale under foreclosure.

Bunn, 625 S.W.2d at 776.

D. Because the Foreclosure Sale Violated the Bankruptcy Stay, the Correction Foreclosure Deed is Void Either in Its Entirety, or, in the Alternative, as to Aflatouni’s Vendor’s Lien and Aflatouni’s Legal Title.

“An action taken in violation of the automatic stay is void, not merely voidable.”

Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex.1988)

(cit. omitted) (App.68) Because the foreclosure sale violated the bankruptcy stay, the

Correction Foreclosure Sale Deed is void either in its entirety or, in the alternative, as

to the Vendors’ Lien. See Poag v. Flories, 317 S.W.3d 820, 825 (Tex. App.—Fort

Worth 2010, pet. denied) (“A void deed is without vitality or legal effect.”); see also

Bradford v. Thompson, 470 S.W.2d 633, 635, 637 (Tex. 1971) (concluding that a

foreclosure was “null and void[ ]” and therefore declaring that a trustee's deed arising

from the foreclosure was “cancelled and held for naught [ ]”). A foreclosure sale that

occurs during the automatic stay is void and passes no title. Oles v. Curl, 65 S.W.3d

129, 132 (Tex. App.—Amarillo 2001, no pet.). When a foreclosure sale is void, title to

property does not transfer and the purchaser takes no title. Chale Garza Invests., Inc. v.

26 Madaria, 931 S.W.2d 597, 600 (Tex. App.—San Antonio 1996, writ ref'd, n.r.e.);

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

1985, writ ref'd n.r.e.); Henke v. First S. Props., Inc., 586 S.W.2d 617, 620 (Tex. Civ.

App.—Waco 1979, writ ref'd, n.r.e.).

Indisputably, as shown above, City Bank filed its Notice of Foreclosure Sale and

the substitute trustee conducted the foreclosure sale following the date that Aflatouni

filed his Original Petition in the Bankruptcy Court, and while Aflatouni’s bankruptcy

proceeding was pending. Enclave does not dispute that because the foreclosure sale

violated the bankruptcy stay and that the Correction Foreclosure Sale Deed is void

either in its entirety or, in the alternative, as to Aflatouni’s Vendors’ Lien and

Aflatouni’s legal title. Aflatouni’s summary judgment evidence establishes this as a

matter of law.

E. Aflatouni Is Entitled To Rescind Aflatouni’s Vendors’ Lien.

A holder of a vendor’s lien possesses superior title and has the right to rescind

the vendor’s lien upon a default by the vendee. Whiteside v. Bell, 347 S.W.2d 568, 570

(Tex. 1961) (citing Maupin v. Chaney, 139 Tex. 426, 163 S.W.2d 380, 384 (1942).

When an express vendor's lien is retained to secure unpaid purchase money, superior

legal title remains in the vendor until the purchase money is paid. Lusk v. Mintz, 625

S.W.2d 774, 775 (Tex. App.—Houston [14th Dist.] 1981, no writ) (citing State v.

Forest Lawn Lot Owners Ass'n, 152 Tex. 41, 254 S.W.2d 87 (1953)).

27 Aflatouni demanded payment on March 14, 20174. (CR70, App.5; CR120,

App.36 - Demand for Payment) The purchase money has not been paid. (CR70,

App.5) Aflatouni’s summary judgment evidence established as a matter that Aflatouni

is entitled to the rescission of Aflatouni’s Vendors’ Lien, and elected a rescission and

entry of summary judgment rescinding the Vendors’ Lien and placing title to the real

property in Aflatouni. (CR29, 42, 53)

Aflatouni established his right to rescind the Vendor’s Lien as a matter of law,

as argued in Aflatouni’s Motion for Summary Judgment, and contrary to Enclave’s

argument in Enclave’s Motion for Summary Judgment.

ISSUE TWO

The Trial Court Erred When It Granted Summary Judgment in Favor of Enclave on Aflatouni’s Trespass to Try Title Claim. (CR921; App.64)

ARGUMENT AND AUTHORITIES FOR ISSUE TWO

A. Applicable Law – Trespass to Try Title.

When the vendee defaults in the payment of the purchase price, the holder of a

vendor’s lien “may file a suit in trespass to try title to recover the land thereby effecting

a rescission.” Whiteside, 347 S.W.2d at 570.

4 As discussed below, because the demand for payment occurred after the final judgment in the Collin County case, Aflatouni’s cause of action seeking a rescission of Aflatouni’s Vendor’s Lien had not yet accrued, and therefore a res judicata defense, if Enclave had pleaded res judicata, is inapplicable.

28 A trespass to try title action is the method of determining title to lands,

tenements, or other real property. TEX. PROP. CODE §22.001(a). Trespass to real

property occurs when a person enters another’s land without consent. Wilen

v. Falkenstein, 191 S.W.3d 791, 797 (Tex. App.—Fort Worth 2006, pet. denied);

General Mills Restaurants, Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 833 (Tex. App.—

Dallas 2000, no pet.). To recover for a trespass to real property, a plaintiff must prove

that (1) the plaintiff owns or has a lawful right to possess real property, (2) the

defendant entered the plaintiff’s land and the entry was physical, intentional, and

voluntary, and (3) the defendant’s trespass caused injury to the plaintiff. Wilen, 191

S.W.3d at 798. The plaintiff in a trespass to try title action is required to prove its title

by proving (1) a regular chain of conveyances from the sovereign to the plaintiff, (2) a

superior title to that of the defendant out of a common source, (3) title by limitations,

or (4) prior possession, which prior possession has not been abandoned. Rogers v.

Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex. 1994). In a trespass-to-try-title action,

a plaintiff recovers on the strength of his or her own title. Plumb v. Stuessy,

617 S.W.2d 667 (Tex. 1981).

A valid foreclosure on a senior lien (sometimes referred to as a "superior" lien)

extinguishes a junior lien (sometimes referred to as "inferior" or "subordinate") if there

are not sufficient excess proceeds from the foreclosure sale to satisfy the

29 junior lien. Diversified Mortg. Investors v. Lloyd D. Blaylock Gen. Contractor, Inc.,

576 S.W.2d 794, 808 (Tex. 1978).

B. Aflatouni Has Superior Title Because the Foreclosure Sale Was Void – City Bank Violated the Bankruptcy Stay.

As discussed above, a Special Warranty Deed (Vendor’s Lien) (the “Deed”) was

received by Grapevine Diamond when it purchased the Property. (CR66, App.1;

CR71, App.6 - 2007 Deed) The Deed states the Vendor retained a Vendor’s Lien when

the Property was sold to Grapevine Diamond. (CR66, App.1; CR71, 74, App.6, 9 -

2007 Deed) The Vendor’s Lien and superior title was retained by the Vendor until the

City Bank debt and the Second Lien Note were paid by Grapevine Diamond. (CR66,

App.1; CR74, App.9 - 2007 Deed) The Vendor’s Lien was subordinated to City Bank’s

debt until the City Bank debt was paid by Grapevine Diamond. (CR66, App.1; CR74,

App.9 - 2007 Deed)

Enclave claims title based upon: (1) a Deed of Trust executed by Grapevine

Diamond, L.P. in favor of City Bank on or about September 10, 2007 and foreclosure

sale (CR91, App.26 - Correction Foreclosure Sale Deed); (2) a Special Warranty Deed

executed by City Bank to SPK Land Acquisition, LLC (CR102 - Special Warranty

Deed to SPK); and (3) a Warranty Deed executed by SPK Land Acquisition, LLC to

Enclave LLC (CR112 - Warranty Deed by SPK to Enclave). Clearly Enclave’s title

claim is dependent upon the validity of the foreclosure sale, and Aflatouni’s title claim

30 is superior to Enclave’s title if the foreclosure was void, in whole or in part, as argued

above. See Rogers, 884 S.W.2d at 768. Aflatouni’s vendor’s lien and Aflatouni’s legal

title would only be extinguished by a valid foreclosure sale. See Diversified Mortg.

Investors, 576 S.W.2d at 808.

In conclusion, Aflatouni’s summary judgment evidence establishes as a matter

of law, and contrary to Enclave’s Motion for Summary Judgment, that Aflatouni is

entitled to judgment on Aflatouni’s trespass to try title claim and the rescission of

Aflatouni’s Vendor’s Lien, placing equitable and legal title in Aflatouni.

ISSUE THREE

The Trial Court Erred When It Granted Summary Judgment in Favor of Enclave on Aflatouni’s Claim to Quiet Title and Remove Cloud on Title. (CR921; App.64)

ARGUMENT AND AUTHORITIES FOR ISSUE THREE

A. Applicable Law – Quiet Title and Remove Cloud on Title.

Courts have used the term "suit to quiet title" to refer to legal disputes regarding

(1) title to and possession of real property; and (2) the validity of other "clouds" on an

undisputed owner's title to real property. Alkas v. United Sav. Ass'n of Tex., Inc., 672

S.W.2d 852, 855-56 (Tex. App.—Corpus Christi 1984, writ ref'd n.r.e.) (suit to

adjudicate ownership of property to determine whether creditors of original owner

retained interest in property purportedly conveyed to new owner was action "to quiet

31 title"); Southwest Guar. Trust Co. v. Hardy Rd. 13.4 Joint Venture, 981 S.W.2d 951,

956-57 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (undisputed property

owner's action to invalidate lien and deed of trust securing lien constituted suit "to

quiet title").

A suit to quiet title is equitable in nature, and the principal issue in such suits is

"'the existence of a cloud on the title that equity will remove.'" Florey v. Estate of

McConnell, 212 S.W.3d 439, 448 (Tex. App.—Austin 2006, pet. denied) (quoting Bell

v. Ott, 606 S.W.2d 942, 952 (Tex. Civ. App.—Waco 1980, writ ref'd n.r.e.)). A

"cloud" on legal title includes any deed, contract, judgment lien or other instrument,

not void on its face, that purports to convey an interest in or makes any charge upon

the land of the true owner, the invalidity of which would require proof. Wright v.

Matthews, 26 S.W.3d 575, 578 (Tex. App.—Beaumont 2000, pet. denied). A suit to

quiet title "'enable[s] the holder of the feeblest equity to remove from his way to legal

title any unlawful hindrance having the appearance of better right.'" Florey, 212

S.W.3d at 448 (quoting Thomson v. Locke, 66 Tex. 383, 1 S.W.112, 115 (Tex. 1886)).

Any deed, contract, judgment, or other instrument not void on its face that

purports to convey an interest in or make any charge upon the land of a true owner, the

invalidity of which would require proof, is a cloud upon the legal title of the owner.

Hahn v. Love, 321 S.W.3d 517, 531 (Tex. App.—Houston [1st Dist.] 2009, pet.

denied). To prevail in a suit to quiet title, the plaintiff must prove (1) his right, title, or

32 ownership in real property, (2) that the defendant has asserted a "cloud" on his

property, meaning an outstanding claim or encumbrance valid on its face that, if it were

valid, would affect or impair the property owner's title, and (3) that the defendant's

claim or encumbrance is invalid. See Gordon v. W. Houston Trees, Ltd., 352 S.W.3d

32, 42 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Hahn, 321 S.W.3d at 531.

B. Aflatouni’s Summary Judgment Evidence Establishes Every Element of Aflatouni’s Title Claims.

1. Aflatouni Has Right, Title, or Ownership in the Property.

As discussed above, a Special Warranty Deed (Vendor’s Lien) (the “Deed”) was

received by Grapevine Diamond when it purchased the Property. (CR66, App.1;

CR71, App.6 - 2007 Deed) The Deed states the Vendor retained a Vendor’s Lien when

the Property was sold to Grapevine Diamond. (CR66, App.1; CR71, 74, App.6, 9 -

2007 Deed) The Vendor’s Lien and superior title was retained by the Vendor until the

City Bank debt and the Second Lien Note were paid by Grapevine Diamond. (CR66,

App.1; CR74, App.9 - 2007 Deed) The Vendor’s Lien was subordinated to City Bank’s

debt until the City Bank debt was paid by Grapevine Diamond. (CR66, App.1; CR74,

App.9 - 2007 Deed) In summary, Aflatouni has right, title, or ownership in the

Property.

33 2. City Bank’s Corrected Foreclosure Deed, the Special Warranty Deed to SPK and the Warranty Deed to Enclave Are a Cloud on the Title.

City Bank filed a Corrected Foreclosure Deed claiming title in the Property in

the real estate records of Tarrant County, Texas. (CR91, App.26 - Correction

Foreclosure Sale Deed) Subsequently, a Special Warranty Deed executed by City

Bank to SPK Land Acquisition, LLC was filed in the public records (CR102 - Special

Warranty Deed to SPK) and a Warranty Deed executed by SPK Land Acquisition,

LLC to Enclave LLC was filed in the public records. (CR112 - Warranty Deed by SPK

to Enclave)

These deeds are a cloud on the title, as Enclave is claiming it has title to the

Property, and that Aflatouni’s lien is no longer enforceable following the foreclosure

sale.

3. Enclave’s Claim is Invalid Because the Foreclosure Sale Violated the Automatic Bankruptcy Stay, and Thus the Foreclosure Sale is Void, in Whole or in Part.

As discussed above, the foreclosure sale was invalid because it was a violation

of the automatic bankruptcy stay resulting from Aflatouni’s bankruptcy filing. The

authorities, argument and summary judgment evidence discussed above is incorporated

as if set forth in its entirety. City Bank’s Corrected Foreclosure Deed is a “false

statement” because the foreclosure sale was invalid. The undisputed evidence

establishes that after Aflatouni filed his bankruptcy petition and before the Aflatouni

34 bankruptcy proceeding was dismissed, City Bank posted the Property for foreclosure

and City Bank’s substitute trustee conducted a foreclosure sale.

On December 6, 2010, Jonathan Aflatouni filed Aflatouni Bankruptcy Petition

under chapter 13, in cause no. 10-38538-sgj13. (CR67, App.2; CR79, App.14 -

Aflatouni Bankruptcy Petition)

On or about December 9, 2010, in violation of the automatic bankruptcy stay,

City Bank filed the Foreclosure Notice for a January 4, 2011 sale of the property

owned by Grapevine Diamond, L.P. and the subject of Aflatouni’s second-priority

vendor’s lien. (CR67, App.67; CR87, App22 - Foreclosure Notice)

On or about January 4, 2011, in violation of the automatic bankruptcy stay, a

substitute trustee appointed by City Bank conducted a foreclosure sale of the property

owned by Grapevine Diamond, L.P. and the subject of Aflatouni’s second-priority

vendor’s lien. (CR67, App3; CR91, App.26 - Correction Foreclosure Sale Deed) City

Bank recorded its Correction Foreclosure Deed in the real property records of Tarrant

County, Texas on or about January 12, 2011. (CR91, App.26 - Correction Foreclosure

Sale Deed)

On January 14, 2011, the Bankruptcy Dismissal Order was entered in the

Aflatouni Bankruptcy. (CR68, App.3; CR98; App.33 - Order Dismissing Chapter 13

Case and Notice of Dismissal)

35 City Bank’s designee, Wilcox, admitted that City Bank knew that Aflatouni field

for bankruptcy protection on December 6, 2011 around the time the bankruptcy

petition was filed. (CR163) Jonathan Aflatouni attended the foreclosure sale on

January 4, 2011. (CR68; App.3) Before the sale began, Jonathan Aflatouni informed

the substitute trustee conducting the foreclosure sale of the Property, and also the City

Bank employee that was present at the sale, that Jonathan Aflatouni had filed for

bankruptcy protection. (CR68; App.3)

Clearly Enclave’s title claim is dependent upon the validity of the foreclosure

sale, and Aflatouni’s title claim, as the holder of Aflatouni’s Vendor’s Lien and legal

title, is superior to Enclave’s title if the foreclosure was void, in whole or in part, as

argued above. See Rogers, 884 S.W.2d at 768. Aflatouni’s Vendor’s Lien and legal

title would only be extinguished by a valid foreclosure sale. See Diversified Mortg.

In conclusion, Aflatouni established his title claims as a matter of law, and

contrary to Enclave’s argument in Enclave’s Motion for Summary Judgment.

36 ISSUE FOUR

The Trial Court Erred When It Granted Summary Judgment in Favor of Enclave on Enclave’s Collateral Estoppel Defense Because the Court of Appeals Opinion Never Reached the Issue of Whether City Bank’s Foreclosure Sale Was Void Because the Foreclosure Violated the Automatic Bankruptcy Stay, and Aflatouni Demanded Payment of His Loan After the Collin County Judgment Was Entered and the Dallas Court of Appeals Issued Its Opinion. (CR921; App.64)

ARGUMENT AND AUTHORITIES FOR ISSUE FOUR

Enclave’s motion for summary judgment contains one argument – Enclave

asserts that Aflatouni has not title because the foreclosure sale was not void – and thus

Enclave asserts that collateral estoppel bars Aflatouni’s claims. (CR205-07) Notably,

Aflatouni did not demand payment upon the debt that is secured by the Vendors’ Lien

until March of 2017 (and long after the Court of Appeals Opinion relied upon by

Enclave). Further, the Opinion relied upon by Enclave does not contain a holding on

whether the foreclosure sale was void or if Aflatouni’s Vendor’s Lien was canceled by

the foreclosure – the Opinion instead merely held that Aflatouni was not entitled to

recover damages. (CR229--31; App.46-48)

A. Applicable Law – Collateral Estoppel.

To invoke collateral estoppel, a party must establish: (1) the same facts sought to

be litigated in the second suit were fully litigated in the first suit; (2) those facts were

essential to the judgment in the first suit; and (3) the parties were cast as adversaries in

37 the first suit. Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994). The

prior decision has preclusive effect only if the issue decided is identical to the issue in

the pending litigation and essential to the judgment in the prior action. Getty Oil Co. v.

Ins. Co. of N. America, 845 S.W.2d 794, 802 (Tex. 1992). Stated differently, a prior

judgment is not conclusive of matters “not then directly in issue, or which were only

collateral issues, or matters of inference arising in the course of the proceedings.”

Ellerd v. Ellison, 165 S.W. 876, 882 (Tex. Civ. App.—Amarillo 1914) (cit. omitted).

A judgment can be conclusive solely of matters that exist at the time the

judgment is rendered, and it cannot be conclusive of issues that have arisen after the

judgment was rendered. Lubbock v. Stubbs, 160 Tex, 111, ___, 327 S.W.2d 411, 415

(1959). “Res judicata or estoppel by judgment does not apply in suits in trespass to try

title to any title that might be acquired by either party subsequent to the rendition of the

judgment plead as res judicata or estoppel.” McCombs v. McKaughan, 195 S.W.2dd

194, 200 (Tex. Civ. App.—Beaumont 1946, writ ref’d)(cit. omitted).

B. The Court of Appeals Never Held the Foreclosure Sale Was Valid.

The Opinion relied upon by Enclave contains no holding regarding the voidness

or validity of the foreclosure sale. (CR220, App.37 – Opinion) Instead, the Court of

Appeals held that there was “no equity in the property” (CR230, App.47 – Opinion)

and that “no summary judgment evidence that the property’s value exceeded the

amount stated on Grapevine Diamond’s bankruptcy schedules, and the property was

38 sold for less than the amount of City Bank’s secured claim” (CR231, App.48 –

Opinion) As a result, the Court of Appeals overruled the “portions . . . of the issues

alleging that summary judgment for City Bank was improper because the foreclosure

sale allegedly violated the stay in Aflatouni’s bankruptcy.” (CR231, App.48 –

Opinion)

Notably, the Opinion does refer to the bankruptcy court’s consideration of

whether an intercreditor agreement sufficiently diluted or weakened the creditor’s

property rights to the point that there was no meaningful property interest. (CR230-31,

App.47-48 – Opinion) Of course, the bankruptcy court would not have made this

analysis if Aflatouni’s Vendor’s Lien and legal title - an asset - was not property of the

bankruptcy estate and thus the subject of the automatic bankruptcy stay.

As a result, Enclave’s motion for summary judgment grounds, including

Enclave’s collateral estoppel argument, fail because the “issue presented in the current

litigation is not identical to the issue in the pending litigation.” See Getty Oil Co. v.

Ins. Co. of N. America, 845 S.W.2d at 802.

C. Res Judicata, If It Had Been Pleaded By Enclave, Is Inapplicable - Aflatouni Demanded Payment in March of 2017 – Long After the Previous Litigation Concluded.

A holder of a vendor’s lien possesses superior title and has the right to rescind

the vendor’s lien upon a default by the vendee. Whiteside, 347 S.W.2d at 570. A

cause of action based upon a note that is payable upon demand accrues when demand

39 is made. Aguero v. Ramirez, 70 S.W.3d 372, 375 (Tex. App.—Corpus Christi 2002,

pet. denied); see also Arlington v. McClure, No. 02-06-296-CV, 2008 WL 755072, at

*6 (Tex. App.—Fort Worth June 5, 2008, no pet.) (mem. op.). Thus, until Aflatouni

demanded payment in March of 2017 (CR120, App.36 – Aflatouni Request for

Payment), Aflatouni’s right to rescind the Vendors’ Lien had not yet accrued.

As part of the closing on September 12, 2007, Grapevine Diamond received a

loan from Jonathan Aflatouni in the amount of $2,741,760.51 as reflected on the

Settlement Statement as part of the purchase price for the Property. (CR68:App.3)

City Bank did not dispute that Aflatouni loaned Grapevine Diamond the $2.7 million

when Grapevine Diamond purchased the Property in 2007. (CR162) This loan was to

be paid off on demand, which was to be no earlier that when Grapevine Diamond sold

the property or developed the property itself. (CR68; App.3) This loan accrued

interest at an annual rate of 7.00% simple interest. (CR69; App.4) On July 19, 2013,

Youval Zive, in his capacity as President of Danjon, Inc., Grapevine Diamond’s

general partner, executed a Replacement Promissory Note reflecting the terms of the

original promissory note. (CR69, App.4; CR101) This loan has not been repaid, and

Aflatouni demanded payment on March 14, 2017. (CR70, App.5; CR120, App.36 –

Aflatouni Request for Payment) Aflatouni demanded payment on March 14, 20175.

5 Again, because the demand for payment occurred after the final judgment in the Collin County case, Aflatouni’s cause of action seeking a rescission of Aflatouni’s Vendor’s Lien had not yet accrued, and therefore a res judicata defense, if Enclave had pleaded res judicata, is inapplicable.

40 (CR70, App.5; CR120, App.36 - Demand for Payment) The purchase money has not

been paid. (CR70, App.5)

As a result, Enclave’s collateral estoppel argument fails because the same facts

sought to be litigated in the second suit were not fully litigated in the first suit; and (2)

the same facts were not essential to the judgment in the first suit. See Sysco Food

Servs, 890 S.W.2d at 801.

D. SPK and Enclave - the Subsequent Owners After City Bank - Were Not Parties to the Collin County Lawsuit.

On September 29, 2011, City Bank executed the Special Warranty Deed to SPK

Land Acquisition, LLC (CR102 - Special Warranty Deed to SPK). On October 5,

2012, SPK executed a Warranty Deed to Enclave (CR112 - Warranty Deed by SPK to

Enclave). SPK and Enclave are not parties to the Dallas appeal. (CR220; App.37)

Aflatouni’s Motion for Summary Judgment filed in the Collin County case, the Order

granting City Bank’s Motion for Summary Judgment and the Final Judgment (these

three documents are included as exhibits to Enclave’s MSJ Response), shows that SPK

and Enclave are not parties to the Collin County case. (CR288, 364, 367) There is no

mention of a claim by Aflatouni to rescind the vendor’s lien in these documents.

PRAYER

Appellant Jonathan Aflatouni asks that this Court reverse the judgment of the

trial court that Aflatouni take nothing by his claims, render judgment in favor of

41 Aflatouni on his claims, or, in the alternative, remand this cause for further

proceedings.

Respectfully submitted,

By: /s/ Jeffrey R. Sandberg Jeffrey R. Sandberg State Bar No. 00790051 jsandberg@pamlaw.com 8350 N. Central Expressway; Suite 1111 Dallas, Texas 75206 (214) 242-6444/ (214) 265-1950 – Fax COUNSEL FOR APPELLANT JONATHAN AFLATOUNI

CERTIFICATE OF COMPLIANCE

Appellants file this Tex. R. App. P. 9.4 Certificate of Compliance regarding the Appellants’ Brief filed on this date.

I, Jeffrey R. Sandberg, Esq., counsel for Appellants, certifies that Appellant’s Brief was generated by a computer using Microsoft Word 2007 which indicates that after excluding the caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix, as permitted under Rule 9.4(i)(1) of the Texas Rules of Civil Procedure, the word count of this document is 8,635.

/s/ Jeffrey R. Sandberg Jeffrey R. Sandberg

42 CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing instrument was served by certified mail, return receipt requested, on this 20th day of December, 2017, upon:

Via E-Filing and E-Mail: Margaret “Peg” Donahue Hall Email: peg.hall@dentons.com Leanna M. Anderson Email: leanna.anderson@dentons.com Spencer D. Hamilton Email: spencer.hamilton@dentons.com DENTONS US LLP 2000 McKinney Avenue, Suite 1900 Dallas, TX 75201

Via E-Mail (ziv@pacificholdingsgroup.com): Grapevine Diamond, L.P., c/o its General Partner, Danjon, Inc. Youval Zive, President of Danjon, Inc.

43 APPENDIX

22 CR87: City Bank Notice of Trustee (Foreclosure) Sale (Dec. 10, 2010)

26 CR91: Correction Foreclosure Sale Deed (effective Jan. 4, 2011)

33 CR98: Order Dismissing Aflatouni Bankruptcy (Jan. 12, 2011

36 CR120: Aflatouni Request for Payment to Grapevine Diamond (March 14, 2017)

62 CR915: Order Granting Enclave Motion for Partial Summary Judgment (May 26, 2017)

68 Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499 (Tex. 1988). CAUSE NO. 342·280952·15

GRAPEVINE DIAMOND, L.P. and § IN THE DISTRICT COURT OF AMIR FOAD JOHN AFLATOUNI, § aka JONATHAN AFLATOUNI, § Plaintiffs, § v. § TARRANT COUNTY, TEXAS § ENCLAVE AT GRAPEVINE, L.P., § A TEXAS LIMITED PARTNERSHIP, § Defendant. § 342ND JUDICIAL DISTRICT

STATE OF TEXAS § § COUNTYOF _ §

AFFIDAVIT OF JONATHAN AFLATOUNI

BEFORE ME, the undersigned Notary Public, on this day personally appeared Jonathan

Aflatouni who, being duly sworn on his oath, deposed and said the following:

l. "My name is lonathan Aflatouni. I am over the age of twenty-one (21) years,

have never been convicted of a felony or a crime involving moral turpitude, and am fully

competent to testify in all respects. I have personal knowledge of all facts set forth herein and

they are all true and correct.

2. When Grapevine Diamond, L.P. purchased the property in 2007, it received

a Warranty Deed with Vendor's Lien (the "2007 Deed") retlecting the retention of a

vendor's lien by the Vendors. Further, the 2007 Deed reflects the Vendors' Lien would

be in effect until City Bank and the Vendors were repaid, was retained in favor of the

Vendors and City Bank, and partially assigned to City Bank so that the Vendors would be

subordinated to City Bank until City Bank was repaid. Thus, City Bank had actual

Affidavit of Jonathan AOatouni 1:\l4223\Pleadings\Affidavit AOatouni.J70403••doc Page 1 of 5 EXHIBIT A Appendix to Appellant's Brief - Page 1 of 69 66 knowledge of the property interest held by the Vendors in the form of the portion of

second-priority Vendors' Lien that was not assigned to City Bank. A true and correct

copy of the 2007 Deed is attached to this Affidavit as Exhibit A-I.

3. Further, I and Grapevine Diamond communicated to City Bank, before the

real property was sold to Grapevine Diamond, that Grapevine Diamond would be

providing additional consideration to me of $2,740,700.51 at the time of the closing. In

response, City Bank confirmed in writing that City Bank knew I would be entitled to

receive $2,740,700.51 of sales proceeds at the time of the closing. A true and correct

copy of City Bank's September 12, 2007 letter to the title office is attached to this

Affidavit as Exhibit A·2.

4. I never exchanged the $2,740,700.51 of sales proceeds at the time of the

closing that was owed to me for equity in Grapevine Diamond.

5. On December 6, 2010, Aflatouni filed an Original Petition in the

Bankruptcy Court of the Northern District of Texas under chapter 13, in cause no. 10-

38538-sgj13 (the "Bankruptcy Petition"). A true and correct copy of the Bankruptcy

Petition is attached to this Affidavit as Exhibit A-3.

6. On or about December 9, 2010, in violation of the"automatic bankruptcy

stay, City Bank filed its Notice of Foreclosure Sale for a January 4, 2011 sale of the

property owned by Grapevine Diamond, L.P. and the subject of Aflatouni's second-

priority vendor's lien. A true and correct copy of the City Bank Notice of Foreclosure

Sale is attached to this Affidavit as Exhibit A-4.

Affidavit of Jonathan Anatouni I:\14223\Pleadings\Affidavit Anatouni.170403•.doc Page 2 of5 EXHIBIT A Appendix to Appellant's Brief - Page 2 of 69 67 7. On or about January 4, 2011, in violation of the automatic bankruptcy stay,

a substitute trustee appointed by City Bank conducted a foreclosure sale of the property

owned by Grapevine Diamond, L.P. and the subject of Aflatouni's second-priority

vendor's lien. The 2011 foreclosure sale sought to eliminate Aflatouni' s property interest

as a second-priority lienholder regarding Grapevine Diamond, L.P.'s real property. A

true and correct copy of the Correction Foreclosure Sale Deed describing City Bank's January

2011 foreclosure sale of is attached to this Affidavit as Exhibit A·5.

8. I attended the foreclosure sale on January 4, 201 L Before the sale began, I

informed City Bank's trustee/substitute trustee conducting the foreclosure sale of the Property,

and also the City Bank employee that was present at the sale, that I had filed for bankruptcy

protection. The trustee/substitute trustee and the City Bank employee told me that my filing for

bankruptcy protection was unimportant.

9. Following City Bank's issuance of the Notice of Foreclosure Sale and the

January 4,2011 foreclosure sale, my bankruptcy proceeding was dismissed on January 12,201 L

A true and correct copy of the Order Dismissing Chapter 13 Case and Notice of Dismissal is

attached to this Affidavit as Exhibit A·6.

10. As part of the closing on September 12, 2007, Grapevine Diamond executed a

promissory note (the "Note") when Grapevine Diamond received a loan from Jonathan Aflatouni

in the amount of $2,741,760.51 as reflected on the Settlement Statement as part of the purchase

price for the Property. This loan was to be paid off on demand, which was to be no earlier that

when Grapevine Diamond sold the property or developed the property itself.

11. As of the date hereof, I am the sole owner of the loan evidenced by the Note. I

have not assigned, pledged, sold, endorsed or in any way transferred or hypothecated the Note or Affidavit of Jonathan Aflatouni I:\14223\Pleadings\Affidavit Aflatouni.170403..doc Page 3 of 5 EXIDBITA Appendix to Appellant's Brief - Page 3 of 69 68 any interest therein. The original Note was duly executed and delivered by Grapevine Diamond

to me on or about the date of the closing on September 12, 2007, but the original Note has been

inadvertently lost or misplaced by me, and I have been unable to locate the original Note despite

diligent efforts to do so. I cannot reasonably obtain possession of the original Note because the

whereabouts of the original Note cannot be determined. I would have been entitled to enforce the

Note when loss of possession occurred . The loan from me to Grapevine Diamond was due on

demand, which was to be no earlier than when Grapevine Diamond sells the Property or

develops the Property itself. The original note stated that Grapevine Diamond promised to pay to

the order of Jonathan Aflatouni, the sum of $2,741,760.51, together with simple interest at the

rate of 7.0% percent per annum on the principal commencing on September 12, 2007, payable:

(1) in full should Grapevine Diamond, L.P. sell the Property; or (2) monthly payments in the

amount of $35 ,000.00 on the 15th day of each month, beginning no less than 30 days following

the date of demand with the balance due upon the sale of the Property, at Grapevine, Texas .

12. On July 19, 2013, Youval Zive, in his capacity as President of Danjon, Inc.,

Grapevine Diamond's general partner, executed a Replacement Promissory Note reflecting the

terms of the original promissory note. A true and correct copy of the Replacement Promissory

Note is attached to this Affidavit as Exhibit A-7.

13. On or about September 29, 2011, City Bank executed and delivered a

Special Warranty Deed regarding Grapevine Diamond's real property in favor of SPK

Land Acquisition, LLC. ("SPK"). A true and correct copy of this deed attached to this

Affidavit as Exhibit A-S.

14. On or about October 5, 2012, SPK executed a Warranty Deed regarding

Grapevine Diamond's real property that is the subject of Aflatouni's Vendors' Lien in Affidavit of Jonathan Aflatouni I:\14223\Pleadings\Affidavit Aflatouni.170403••doc Page 4 ofS EXHIBIT A Appendix to Appellant's Brief - Page 4 of 69 69 favor of Defendant Enclave. A true and correct copy of this deed is attached to this Affidavit

as Exhibit A-9.

15. The loan to Grapevine Diamond that is the subject of the Vendors Lien accrued

interest at an annual rate of 7.00% simple interest. This loan has not been repaid and no demand

for payment was made regarding this loan until I made a demand for payment on March 14,

2017. A true and correct copy of the demand for payment is attached to this Affidavit as

Exhibit A-IO. Grapevine Diamond has failed to make the required payment of this loan,

which is now due and outstanding.

FURTHER AFFIANT SA YE~

SUBSCRIBED AND SWORN to before me on thi~ day of April, 2017, witness my hand and official seal.

~~~~ ~ NOTA@PUBLIC in and State of Texas

Affidavit of Jonathan At1atouni I:\14223\Pleadings\Affidavit Anatouni.170403•.doc Page 5 or5 EXmBITA Appendix to Appellant's Brief - Page 5 of 69 70 Electronically Recorded Tarrant Co unty Texas OffICial Publ ic Records 2007 sep 26 09:28 AM Fee: s 40 .00 0207343375 Submitter: ACS INC 7 Pages

Suzanne Henderson

No.:ne£O~:CONFIDENTIALITYRIGHTS: IF YOUARE A NATURAL PERSON,YOU MAY.·REMOVE OR STmU ANY OR ALL OF THE FOLLOWING INFORMATION FR~ ,tmSINSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS:<",YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBEIt / .' .'" \ . .40- wTdt~,.·.~;gy~:s~ Recording Fee' slJr Vendee's Addres.'b.•mi·.. ···,···\ . Mter Recordb'ig"RetlJtn T~ , ,:·... Grapevme DllllnOn~t 'L.P.;'a':r~~; limited partnerslnp 13733 Omel!l1 Road .....·· .....-- r :.. Dallas, Texas75244 ./ '... --:..'.'." ..•....~..: '. "

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THESTATE OFTEXAS' ! § :. .: .' '. '-. ..§, ..: ',,' .' Special Warranty Deed COUNTY OFTARRANT" ·r-' : ,' ->_'" (Vendor's wen) \ ' . : " ,.. ::.~.; Definitions

ThefollOWIng terms instrument. shall'~·:V~.~i;~~~I~~ ."..:" . . indicated, whercverthese termsarcusedm thIS .' .>, DateHereof. The effective date ofthJsihstrument, which shall be September 10,2007 .." ." ) :

Vendor: Jonathon AflalOuni ~d wlfe;~a S. Aflatouni

Vendee' Grapevmc Diamond. L~~ ;-a ·T~~ ·himted pannmlup 13733 Omega Road . , _.: i Dallas, Texas 75244 ,~_ '. v, ", ...-..•. '; Lender: CityBlllIk Texas . . .'. Attenllon: Angela W. Carona \ . !........ ". .., 7800PrestonRoad, SUite 201 ., -_ : .

~~~~4~~~~ci:;O~~(972)491-1477 '',_. ;:~ '. "' . ' < ' .'.: .,' . ..........~..... Trustee MIke Liller .... i. .

" .......... . . . " " • i ~: " Note Date: September 10, 2007 . ... . '

Note Amount 56,375,00000 . .. . .. . ", ~

'! "'!..) ! NoteMaker Vendee \, • ..•., \ '0 ,..'-:' ... . . . ..... ,' . ~ .. Note. That certalQ Promissory Note 10 the onginal princlpa(s.uai::~r tJje . ~Dte Amount, datedas of the Note Date,executedbyNotc Makl:r;'payabtc to the orderof Lender. ...., , , :.

Ci ty bank l\188zwd2 v.r Special W IUlnlt Deed - Pigi I

EXHIBIT .-o

Appendix to Appellant's Brief - Page 6 of 69 71 Deed ofTrust: That certain Deed ofTrust, SecurityAgreement andAssignment of Rents, Leases, Incomes and Agreements dated as of the Note Date, securing the Note, executed byNoteMakerto Trustee fur thebenefit of Lender, covenng theProperty.

. '- .•... .:.::~.... :~:-. '

EXcePtion5:'.."...... Theexceptions from thecoverage of Vendor's wamnties oftltle set forth in ,.' ~. ,., -. .this Instrument willch areas IbUows: . . .." -\, :.

(.. , ." .:'(I y ' "-Ad valorem taxesforthe year 2007 andsubsequent years notyetdue ....."/ ·:··.··and payable. .." , "....- '. (' . ', ", ..... .. (2J Rlgbf;-of-way easement granted 10 Texas Power& LIght Company, . . \ :'retardedin Volume 8628,Page2381,oflhe DeedRecords ofTlID'IIIIt , . :,' \:ounty, Texas; as affected by Volume 10062, Page 2147, Deed ..: ..' ·'·RecO!;d!, Tamtlll County, Texas.

~3) ; ': E~~~~ -\Ornght-of-waygnnlCd10 TClW Power& LightCompany ... 'oIDa/hfS,'r e'ias,recorded inVolume 8628, Page2393,DeedRecords ·'ii(.Ta·mIl1t·Counly, Texas; as affected by BII1 of'Sale AsSIgnments and Convlly~; 'dated June25, 1990, recorded In Volume 10062. Page z'r~1, D~R~ .~fTmant County, Texas,

(4) ~:n;ro~·~~t~or.waygnnlCd toTeus Power& Light Company ofDallil5..Texas;recorded.lJ1 Volume 8628, Page2399, Deed Records as ofTarrantCounty, Te1W; affected byBillofSaleAssignments and Conveyance, date!J·]une 2S, 1990, recorded In Volume 10062, Page 2147,DeedRerord$-ofT8mhtCounty, TClt8S. t ,_ .'

(S) Right-of·Way '~~.\' ~~l:I:uted byWilham D Dmfeldt andWife, Peggy 10lhDfeldt;' R"oi1aid Wai't:Jclc and WIfe, Maxme S. Wamclc 10 TexesPower & Light GOmp'any, dated July 2, 1986, filed July28, 1986, recorded In Volwi-n: 8628, _~ge 2375,of the DeedRecords of Tarrant County, Texas> - ' ;""'." '. .\

(6) Right-of-way easement, ellcchle!J'by"Wtlham D Ihnfeldt andwife, Peggy Jo Ihnfeldt to TexasPower.. & 1,Ight Company, datedJuly2, 1986, filedJuly 28, 1986, recorded .iii,Yolo,me 8629,Page I, of the Deed Records ofTmant Coiuity, Te'Xasj"a,'notedon survey dated Augustlj, 2006and prepared biChatles G.,Stames, R.P.L S. No. 2468. .: '''; 'j . . .. ' .:..-., ..' " ,. .. ~.: ) ............. ...... .- '" clly bllt 111881twd2 Sprdll \hrnary Drrd • "llr Z .. ... ,' ... .. :. :.:<"/.. .' . ' . ..,.... ~

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Appendix to Appellant's Brief - Page 7 of 69 72 (7) RJgbt-of-way easement, executed by Wilham D. Dmfeldt, Peggy Ihnfeldt and Marsha Lynne Ihnfeldt Cokerto Texas Power & Light Company, dated July 2, 1986, filed July 28, 1986, recorded m , .' '. Volume 8628,Page2387, oflhe DeedRecords of Tarrant County, ,. ' Texas; as notedon survey datedAugust J5, 2006and prepared by Charles G Starnes, R P.L.S. No. 2468. " ....... . .. ~ .\ (8) The followmg itcm(s) affecting the subject property, as shown on " - • • , W> . - :. _ . survey dated August IS, 2006 and prepared by Charles G. Starnes, "\ . :' . ' '. : R.P.L.S. No.2468' r: . . . .. .....' :. , Tbatpornon ofsubJectpropenyIymg withinAndersen-Gibson Road. :

1 (.... -: -, / ' "~ • " . / ··' ·jtjghts otclanns, ifany, ofadjomingpropcrty owner(s) In and10 thai

"-.. ./ ..... '(""portlonofmsurcdproperty Iymg between the fence andtheSouth and ...•.. .', .: ..... W'ellt property line(s).

Consideration. ":.:All'of~~~':;;IIOWing eonsidesauon, lhe lCCelpt and sufficiency of which are . . ..' h~y.acknQwledged andconfessed:

~~{,:·: : ·~~·~uu.s. ~S I0.00)cash in handpaid by Vendee to Vendor.

(2);...., "n~':~'~~a:~~ and delivery by Vendee of the Note, secured by the · -Decd .ofJ:R1~ wbich NoteandDeed oCTrust is addibonally secured b-X' ttiC.V~OE~S Lien ("Vendor's Lien") herein retained.

'~. ,': _:: :·~.:~:.<.Gr~ For and IQ consideration of ~.~ Consldcntoo",".Vendor has granted, bargamed, sold and conveyed, and does bythese presents hereby grant,bai"gaUi, sell andconveytheProperty to Vendee, subject only to the Exceptions Vendor wammts"co1(e~ts and represents to Vendee that the Property docs not consunne anypart of thCll'i o.r. thei.t.~ve spouses' busmess or resideanel homestead and that the JOJnder of Vendor.~ itlspccl!Ve spouses is nol required to effect the conveyance of the Property herem to Vendee;, ~b ..gilr.lOlt-,comprislDg Vendor haVIDg complete au!honty to make thisconveyance. " . 1 .."" ;' Habendum et TeG~dgDr- ' .. ,.' '; "

To haveandto holdtheabove-descnbed premises, 1O~C!" withall and singularthe rights andappurtenances thereto inanywise belonging, untothesaidVend~e;'~d untoVendee's successors andassigns forever; andVendor doesherebybmdVendor'sllem(suc;cessors andassigns to wamml and forever defendall and smgular the said premees unto the ~!d'v~ixIee, and unto Vendee's successors andassigns, agamst everypcrsoa whomsoever lawfully'c~lriiingpr 10elaunthesameor anypartthereof; by,lhrough or under Vendor, butnototherwise, S\!bJ~( hqwc~r, totheExceptiOns .:." r :.: i: Vendor'. Lien "' , ! ....: : . .-.- ' ~

Oily back I\l8llwdl .... " I ' "' ·.

Sped.1 WarnalY Dud ·"lIe,) . . .. .../ :

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Appendix to Appellant's Brief - Page 8 of 69 73 But it is expressly agreed that the Vendor's Ucn, as weU as the superiortitle in and to the abovo-described JlfllIDiaes, is retained against tho Property, prcmi8C8 and improvemcnta until the Noteand SecondLie.n Noteand all inte.n:st thereon are fullypaidaccording to the face, teoor, effi:ct, and reamps' thereof, whenthis Deed shallbecome absolute, saidVendor's Lien being retained in favor .of Lender and Vendor, as if same had beenretained by Vendor and assigned by proper assigDmcnt WJtoLcnder, withoutrecourscupon Vendor, Lender beingthusfully subrogatcdtosame. T)ic piiItllurilf~ Vendor'a Liensecuring Vcndorsha11 besubonlinatedmall respllCts to thcPOrtlOD of'.lheV'qgf'~ LiCl18ccuring Lender. _-_ .' . ..... . .. ~ /. .. :: \

" . ".: Execution and Effettive Date "v .: , ThJs"~=till effective asoltho Date Herea£. Thisinstrumentwasexecuted 011 thedate or dates or·tfi.,..~redgment or respective aclmowledgmenta set forthbelow. / ., : .i.: : »: . .... "

'·M ~. .:' . Vendor: ........ : .~ .. ,.' ," .,'

. . .... .

THE STATEOf TF.XAS ~ <,.<.\~," , COUNTY OF h4"«I4I'f § ':. <:::'-'-'..': . "\.. Before mll-fl:.1t!emdi:n'#~Ob1ry pnnted name) on this day peIlIonal1y appeared Jonathm Aflamuni. 1m~~JllilOC pro~ed to me to be the person whose name Is subscribed to the foregoing instrumentand aeJmowl'edg~ lQme that he executed the same fur the purposes and consideration therein expressed...." ....,; .! '. :' . · ·..jL Given under my hand md seal ofoffi~ '~'I '~«laY of ~~.A«..2007.

,,,,.,,-,,,.:a"~ Ron "'AlIT KEMDRtClC N-vPl.llIIc.Sla1eolT_ MyCQl1'IllIIsoane- June os. 2001 ~F~ . .., ! oN". " .: .."

. •.' :" ',\ . ' .: ' .' . ,., :..... >:. ... ......... .... ~ ....j ... ~ . . ..... . .. ' . \ r <.: .'........:-.. boat IlUanG oily \ • •• •:. " I • : SpecialWlrrnty PM- '"ce" r- .•...:. : . .. . . . ....' - \,.' . ....... " .......' . .... .. .' . .... ...

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Appendix to Appellant's Brief - Page 9 of 69 74 THE STA11! OF TEXAS § § COUNTY OF '];;ue of t ..' .a'~~~ me ~ ~ 1'J'Ju¥.."{"J,,,'.4!NotBty printed name) 011 this day personally app'~ 'Razia S. Afla.toUlli, 1cnoMa to me or proved to IDll to be the pcrson whose name IS suPscl'ibc«tto ~ll'roregoing malnmlcut and acknowledged 10 methatshe excc:utcd thesameforthe ptiJposes'~~ c9~deratiOD therein expressed,

-,...-Gi:~; ~J~ my hand and sealofoffice this ~daY 00;,,/;..,..42007.

11l~~\';~~:'-' . W~=-~..,.': ~.t¢~~ F J""ua. 21lO" :'" '\

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Appendix to Appellant's Brief - Page 10 of 69 75 EXHIBIT "Act

Being ~.tr8~·t·Of land situated in tbe H. SuggsSurvey, Abstract Number 1415in tbe City of GrlJpe'1ne~ 1'arz:antCounty, Texas. Said tract is also an assemblage of six individual tracts as 5how~..Jre~J.lfalld in total described more particularly as follows:

B~~I~~i~~~} ...e U.S. Army Corps of Enlineen monumentatop a square concrete post 10cated:aUbe 'anoSt easterly soutbent corner of a 37.59acre traet of land described as Tract No. A-3A '.~.,a;.De~i~ra,lion of Taking by tbe U.S. Army Corps of EDgineen and being a part of tbe same I.Dd··coDv.ey~. ~ Mn. BIrdie Elizabetb Brown by Mrs. Lola Buckaloo by deed dated 7 Decetl\ber.1934 and .recorded in Volume 1238 at Page 373 of tbe DeedRecordsof Tarrant CountY~::re~a!ll;,~.id··6t~11 monument also being at tbe soutbwestcorner of a 0.23 acre tract acquired·by,.agr:~e.rite.iit·,"'om tbe U.S. Army Corps of Eng!neen• .." - ~ ." ... " ,, - .. . .... ,."

THENCE North 01 ·de~r~·~:~~utes 58 seconds East along the east Jlne of the U.S. Army Corps of Engineen tratfaiJd.Q·~ West I~~e oftbe above said 0.23 acre agreement tract a distance of 642.56 feet to • 112.~n·cl'" ir9D .rod (ound ",itb cap stamped SCI 2466. Said point also being the northwest COraef: .or~ 0;99 acre parcel of land described In a deed to W.D. Ibnfeldt recorded in Volume 3:B.97;.·.P'.ag~ '1~ or tbe DeedRecords and also being tbe southeast corner of a 108.72 acre·p.ar.~ei;of land··described in a deed to HIA GrapevineJoint Venture recorded in Volume IJn5,-p~~505. onhe Deed Records of Tarrant County, T e x a s . ··-<-.··· . ... -. '- ' ..' THENCE North 89 degrees 56 mlDutes 30 ~~o~dl ~~t along tbe north line of said Ihnfeldt parcel a di!ltance of 378.84feet to a 1/2 in~ iI!PiI. rod set with cap stamped SCI 2466, passing tbe northeast corner of tbe IhDfeldt·.par~J.~t 34.0.87 feet. Said comer being In tbe west liDe of a City of Grapevine, Texas State Rlgbf~r·w8y Deed recorded In Volume 12747, Page 496 of the DeedRetords of Tarrant CountY, Teus.. ' ...." .. " ," . THENCE in a southerly direction along tbe west Iin~o(the.~aJd Street Rigbt of WayDeed tbe foDowlDg: ' ..._ ~'.':~:. ..::::'.,..,.. ...... .

Soutb 00 degrees OS mi.ute5 18 seconds Easta distance o!.ziii9: .' ·re:d to a PK nao found. ' ",,::-

South 90 degrees 00 miD utes 00 seconds East a distance Ofl'i~~:.~10 ~-l/2 inch iron rod found. .' ~ ...' ,.:: -~! ; \" ~':'. .' ~ . . .. ". '

Soutb 02 degrees 06 miautes 36 seconds East a distance of 437.52 reet to ~ ll; i~ch iroD rod Jet witb a cap stamped SCI 2466. . ' . . :' \' ::'~:~~\" .<~" " >-... .. South 16 degrees 21 miD utes 16 seconds Westa distance of153.07 feet to ll(il2·~:DCb .h-':)I;vod set witb a cap stamped SUR-TEX 2466. -: ·<5· ..· > • • • •• •• • , . , o' ~. . '.

THENCE North 69 degrees30 minutes 28 seconds West a distance of 39.53 feet .t~~ mag nail with sbiner stamped JPH Land Suneyiag at tbe most soutberly corner of a·3.15 acre parcel of land described In a deed to William D. IbDfeldt alld Ronald Warrick recorded in

Appendix to Appellant's Brief - Page 11 of 69 76 Volume 5008,Page 257of the Deed Records of Tarrant County, Texas,

THENCE along tbe south and west lines of said Ihnfeldt I Warrick parcel and alongthe north and east lines of a parcel of lind describedin a deed to Carter Grapevine Partnen Document No. D204189024 recorded io the Deed Records of Tarrant County, Texas the rollowio~; / '"

No~tli'12 'd~r~ 21 minutes 29 seconds East a distance of 112.30 feet to a 1/2 Inch iron rod fo~net·:witlfc.ap·Stamped JPH land Surveying. Nortb .J.l.d·~ 23 m.lnutes 12seconds West a distance of 128.2J feetto a 5/8 incb iron rod found• ..... . '.' ... ,.:~.' ·.. ··~.i South 86·rlegre~·~.1.. miDutes 10 seconds West a dlstaoce of 221.12 feet to a 1 Iaeh pipe fiound. :. . .. .",.....- ., ' .', ~." :.

Nortb 00 d~.,2i ~D~teJ-.OO seconds East a distance of 373.70 feet to a 111. Inch Iron rod found witb (3)J..sta.Ptd SlJ~~J'EX 2466 at the northwest corner of the said Ibnfeldtl Warrick tract, sa~(fp.oiDt;:*"so. .b~ng the southwestcorner of a parcel of land describedto a deed to James RolaiJ~. Up.Qn:,,~d·.wlfe Joyee Ann Upton recorded in Volume 6204 Page 786 of the Deed Recordi::91·Tarra.p.tCounty, Texas. ..... .." .

THENCE North 01 delr~:i;-iiJ~~ilt~. 4'} seconds West along the westIiDe of the said UptOD tract and the east Ii~e·o(tile'..slli~.earter Grapevine Partnen tract a distaoce of 140.85 feet to a 1/2 incb Irolfr~a ··rO.UD~Lwith cap stamped SCI 2466, said point beingthe northeast corner of the said C~rter.-GJ:apem.e Partnen tract and the southeast comer of the above said 0.23 acre agreem~t-~~Ci..,j ' .

THENCE South 88 degrees30 m~:~,::';;:~~~'~dl .West aloDg the Dorth IiDe of the Carter Grapevine Partnen tract aad the loutliilne of.tJn!"ab~ye said agreementtract a distance of 31.70 feet to the POINT OF BEGINNING .• II'd c:onti,JniJlg 451.588 square feet or 10.39 acres of Jand. "\. ::.: .,' . -. _ :..~.: . ,

NOTE: The Company is prohibited from insuri,Bg tbe:.area or quantity of the land described hereiD. Any statement in the above legai'~riP-t~on oftbe area or quantity of laDd is not a representation that sucb area or quailtitj:·fj ~ofr~t, but Is madeoDly for information ;'-. !....•., \ c ! . -'0, .•_ ••.) 0 •••••~ ..' . . .:"' .,' . , 0' ". , .....,. .. . 1 ,

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Appendix to Appellant's Brief - Page 12 of 69 77 3eprint Page 1 - 9/21/2010, 11~13am City Bank Texas Archive Copy

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I ; ~ l'rullll'lll=c1 ;"''w :101 PI•••• T.... " ... 97"'191"300 In ,7l"!9"Iot17 flO

September11.2007

RoseMary Kendrick: Escrow Officer Fcdera] Title Inc. 1200S Main.Stc 1000 Grapevine, TX 76051

Dear RoseMary:

CIty BankTex:!!> Is awaret111l1 JonathonAflatouniwill be the one who will be entitledto the $2.740.700.5 1 of sale proceeds derivedfrom the sale of tho 10.39aen: tnlet of IlIIJd to Gropevine Diamond, LP. (31lhough he may electnot to toke cash out of this closing for the purchase of the property).Cit}' BankTexas is also aware (harMr. Afl:ltouni hns reached linapparent understandtng with the pDrtncrs of Gl'3pcvinc Diamond. L.P.that Mr. Ailatouni will n:invcstthosesalo proceeds with GropcvincDiamond,LoP. in cxchlUlge for 3Il equity interestin the partnership. ot some Interdate in connection with the subscqucat development of the property. it is our understanding Mr. Atlatouni is not currentlY:l partner of Grapevine Diamond, L.P. If this informntion ill norcorrect, please advise,

CitY BankTexashllll authorized you to proceed with clolling in accordance with tho Escrow Instructions previouslyforwarded 10 you.

> ........ G300216G

EXHIBIT '( /" ----~--- Appendix to Appellant's Brief - Page 13 of 69 78 vd::;~ ,~I II) fnlela I Form I )(41'10 ) I U-J~~.j~-SgJl J uoc 1 Filed 12/06/10 Entered 12/06/10 13:17:26 Desc Main 1""'\ n. .~ 0

I vrrrn ST",Tr.~ R"N"RI JPTrV ('milT '" VOLUNTARY PETITION "

~ame ol~.,b1or (If 'l!.dlVlduaJ, eruer Last, FIIsl. Middle): . ~IJme or' Jam. Debtor (5 pou"" I II...1. First. :>1Iddle,: F ..... 41'... '1-,"':tt.. ~) "",,"tV ,\ 11 Other Names used by the Deb,or In rhe last ~ years .\ 11 U,her Name. usod by lheJomt Debior In the Ian ~ yean (include married, maiden, lII1d trade names): Imclude married. malden. and trade names): r:::,.,,v .~ \~.""""' I r...W'J, •J /Z.4-O Last tour digits of 500. Sec. or IndIVidual- raxpayer I.D IIT[N~'Complete EIN I.~,l tour digtts or'Soc. Sec. or Indlvldual-Ta.p.yer I D. if r1N)/Comp,eteErN (,fmore 'han one. Slate.U): (If more than one. stale alii: ~7S'7 i"- c1 \.l _l 11: ·~." III Od nur t .~ ~o . .JIll.! "", UCl:L, L ay • •,I,wi ~w,c:, . ,ueol Adoress01 JOInI Uebtor INo, and Sueet. City. and State): .~ )0<> D.:>,f,l.,4.L. Ci ~.'V1 r Fl .... t/~il- IV\." .,j,./t.J 0- V-IP CODF.'7 ra.uJ. 7-IP CODE I County at' R..idence or of'rhe Principal Place of BUSiness: CuuolYof Residence or oi me PnocrpaJ PIace of Business: Oe.,N'<:>'rJ Malltng Add= oi DebtorIii different rrom sueel address)' \ l.uhng Addressoi 101m Debtor Ill' d,ll'renl trorn street addreSS ,: r>, U . .]'J)f.. Cj ~1

LL~1rJ' Ca /4- .TA' 1.IPCODE 7.AI~ :l.IP COIJE Locauon Of Princl~al Assels of Husmess Oebtor (If drrferent trom street address above): rllPCODE r ;pe of Oeblar .' olun or'Rusiness Lhapler of Bnkruplcy Codo l:ndor Whicb IForm otOrgamzanon) ICh«k one box.] rhe Perillon .. Filod /Check ono box.) (Check ou box.) 0 Health Care BUSiness 0 Chapter 7 0 Chapter IS Petman for r:a IndiVidual (includes Jnint Dehton) 0 Single Asset Real Estate as derined in 0 Chap\er 9 Recogmnon of a foreign Su EJrhlbl/D onpaf?t} of/hll/orM. II U.S.C. ~ 101(51BI 0 Chapter II .\,I' ln Proceed,"g 0 0 0 0 Corperanon (includu LLC and LLP) Parmership 0 R.. lrnad Stockbroker @- Chapter 12 Chapter IJ Chapter 15 Petition tbr Recogmnen of a Foreign 0 Other (If debtor 15 not une oi the above eruuies, 0 Commoditv Broker Ncnrnam Proceeding check thiSbox and state type of .nury below.) 0 Clearing B'ank 0 Other ".Iuro 01 Debl. (Chcclc. one box.' r... Ellmpl EDIiI)' ICheck box, Ifappheable.) Cd Debts llI'C pnmanly consumer o Debts are primarily debts. defined in II USC. busrn... debts, 0 Debtor is a tax-exempt orgamzanon ~ 101(8)"" "incurred by an under Title 26 otrhe United States individoal enmanly tor a Code rthe Internal Revenue Code]. personal. fa/lllly. or house- hold cureose." fili n ~ foe (Clu:ck une box.) Chaplor II Doblon Cheek one bos: if Full Filing Fee attached. 0 O.htolisasmallbusrnCS3deb,orasdetined in II U.S.C. ~ 11l1l51D1. 0 Debtor is nora small b""rnc,.. debtoras derined in II U.S.C. ~ 101(51D) 0 Filing Fee to be paid rn Ins!allmentslapphcable re rndiv;dualsonly' . Mus' omu:h ng ned applicancn tor the court's considerauon cenliving that the debtor is Chock if! unable 10pay lee except In '"SIalImenu. Rule IOO6lb). See OlliciaJ Form JA. 0 Debtor', a!!gregatenoneonun!!enlliquidated debts (exc:luding debts DwedlD instders or artihates} arl: le.. Ih.ni2.l4l,J00 (amo"'" ,ublte/to odjUlun,", 0 Filing Fe. walYer requested raeplicable tDchapter 7 lOdividuDl. nnlyl. Mu,t ,m 4-III /IJ and everv /hrrr :WOJ"J /h.rtQ/i.,~ .utach SIgned upplicauon lor the coun 's conslde"'t;Dn. See Ullicial Form lB. . .................. ................................ -- .......... -...... Ch.ck .11opplie.ble bo...: 0 A plan IS being tiled wuh Ihis pennon, 0 Acceplancesof the plan were solicned orepetltlon irom one or morl:classes "((rednor.!. lO accordance wnh II V.S.C $ Illfifb). ::,ra,lllleoIiAdminlstnrl",laform.lIDR 11IIS SPACE IS rDR COURT GSEONLY 0 a ebtor eSllmatesthai funds WIll be available for distrtbution 10unsccurl:d creditors. fA Debtnr esllmates Ihat. alter any e,empt prDpenry 15 .,cluded and adminlstrallve e,pense, pallliherl: Willbe nD fund. a,all.ble lbr .! 1 ~ r n b u r lO n to unc;ecured credlrnr.c.

~malcd N'DberOfcrcoO'" 0 0 0 0 0 0 0 I·H 51] · 9 ~ 100 · 199 : CO·999 I.U()(). 5.\J01 - 10.001· 25.00 1- ;0.1)01· l)vcr i .QUO :cJ.llOO ~5 .000 50.000 100.000 IUO.OOO

E,tlmalCO A>seIS 0 0 0 Cd 0 0 0 0 0 0 WID 550.001 to ~IOO .OOI to 5500.001 SI .OOO .OOI 510.000.001 S50.000.001 S100.000.001 5500.000.00I MDre than 550.000 SIOU.lIUO 5501l.UOO 10SI to SIO [0 SSO [0 SIOO tDS500 '0 SI billion ~Ibrilion 'lillOn mIllion Inllhun Imillon million t:~limated Liablhtu:s 0 0 0 '3 0 0 0 0 0 CJ SO 10 ~50.00IlD 5100.001 to 5500.001 ROOO.OOI 5 I0.000.00I !>50.000.UO I 5100.000.00I ~5UO.000 .OO 1 ~Iore ,han 55U.000 SIlIU.COO 5500.UUO [051 10510 '0 \5 0 ,,, SIOO 'n S500 tn SI billion 51 bIllion ,.,11111"" million mIlton nllllon -nrJlion

(" LI r- '7 EXHIBIT---.......__

Appendix to Appellant's Brief - Page 14 of 69 79 Doc 1 Filed 12/06/10 Entered 12/06/10 13: 17:26 Oesc Main :11 IDl!iclOl Form II 1 ~i1 0 1 n~~,,~~~+ O~~,.. ..., ,..1 Q . ' ..; ~ 2

Voluntary Petition .\ Jme 01 UeMoris); (n riJ ""fiI' mUJI b. Cam ole/PrJ omi fiI.d In ,v.rv cose.J III P.io. Rank.unrev Cu.. t'i1td Wirbin Lufa \·U" Ifmore lhOll IWO. arracnadditional sheet.) Lucanon Case Number OJI. FIled: Wh""e Filed: Location Cue Number. DJIC FIled: '-"here FIled: "endin H.nk.unlev Cln fil ... bv anv Sno .... Pann.r, 0 r, \,"II.t. or rbi' Dehlo, rlf more ,han one. Jllach additIonalsheet.' Name at D.bIOr. ease Number: 0al. filed:

~ Relanonshro: 1'''L'e:

bhlbllA ~lhibil 8 I ro he! completed if debtor IS an Individlial I To be eernpteted If debtor I. required to file aenodic reports (e.g.• rorms 10Kand IOOl '.' hose debls are primanly consumer debu.) ' " Ih the Secunnes and E"hangc COmml!!IOn pursuant 10 Secrion IJ or 151dlof the Secunnes E"hange Act oi 1934 and ISrequealln!!rehefunder chapter I I.) I, the :Illarncy lor the penlloner named in rhe toregoing pennon, declare thll! I have Informedthe pennoner that ' he nr she] may proceed under cllllpler 7. II . 12. ur I J uf tirle I I. Umted S~Jl" Code. and have exetamed the ",lief..ailable under each such chacrer. I iunher cen'l)- lhal I have d'elivered 10 rhe debtor rhe nonce IcqUIn:U by Ii u .S,C. ~ 341(b).

0 E..hlbil A ISattachedand made a pan of this pennon, x ~Il:!narure of Anornev ror Dt!hlnr1~) i nUle'

E,hihit C

Does the debtor own or have oO=lon ofanv propeny Ihat pose! Dr I!I alleged 10 pose a Ihreat of Imminent and idenutlable harm 10 publichealth or safely?

0 Yes. ond ExJllbnC i, auached and made a pan of th!! pennon,

0 No.

ElbibllD

(To be completed by every indiVidual debtor. If a Joint pennon ISriled. each spouse must completeand anach a separate E.xhlhil 0 .)

0 Exhibit D completedand Signedhy the debtor is arraehedand made a pan orlhrs pennon

If Ihis is a jOlOt pennnn:

0 Exhibil D also completed and signed by Ihe JOInt debtor IS "niched and made a pan oithlS petuioe,

Inform.llon He••rdln. the D.btor- \·enu. (Check anr applicable 00' ) g'" Debtee ha! been dormeited Dr has had a resilience. pnnc ipal place of business, Dr prrnclpal assets in thIS Disnna tor 180 day, Immedralely "r"" cUlOBthe dare orthia pennon Dr lbr a longer pan of such ISO days than In anv other Distnc;

0 There ia a bankruPtcy case ecneem ine debtor's arflhare, general panner. or parrnershlppendmg In thrs DIstrict

0 Dehlor .. a d.btor in a 10"'lgn plOCeedrng and has Its prinCIpal place of hoSlnesJ or prrnclpal llSSel9 onthe UnieedStates in thu District.or hos 00 principal plllCe of bUSiness Drasset. In the United Sla,•• bu, IS a defendant 10 an acnon Drproceeding jin a rederal or Stato counj m rhrs D,SUlCI. Drthe inlerests of the paniea 101,11 be served in regard 10 the rehef sought in th.. Dislrict.

Cer,ineaUon by I D.blor Who Ruld..... T.olal of R.sld.alla. Properly ICheck all .ppltcable boxes.I

0 Landlend hIlS a Judgment agalOstlhe dcblor lbr possessloo of dehlOr's resideoee. Ilr"boxchecked, completolhe 'bllowing.)

i.'l ame oflanulord that obtaInedJudgmenl)

I.\ddt""s or landlord}

0 Debtor claims thaI under .oohcable nonbankruptcy law, there a", circumstaocesunder whIch the debtor would be permuted 10 cure the , nil'" monetary def.ulI lhal gave fISC 10 Ihe ludgment lor POSseSSIOn. oller the Judgment lor possess,on 10.... enteted. and

0 Deblor h"" ,ncluded "'Ilh rhi. pelJllOn Ihe deooSltWllhthe coun of llIly rcnlthal ",ould b"Comedue dunng lhe JO-

0 Deblel cenlri •• lhat helshe hos selVed the Landlord wnh th.. cenrtic:lllon fIll! S.c. ~ 3621111.

Appendix to Appellant's Brief - Page 15 of 69 80 '-'c:I~t:: I o-coooo-sqj l,j uoc 1 riled 12/06/10 Entered 12/06/1013:17:26 Desc Main Document Page 3 of 8 11 IOmo,al Forml I WIIll .'l"'-,c: ] Voluntary Petition Name Of Dcblorlsj: ' Th" co " musr bt comoleted and /ilrJ itt e\'e'" , ·UJI.} ...i l!nIIUrrS ~i~n . lu ref 'l of Deblorlll (IndividusllJoinU :'i~n.rur. or. For.i~n Repres.II.li..

I ~cclare under penalty or' ~rjury 1hlU rhe Informallon provided in IhlSpennon i. true I decIan: under penallY or perjury that rhe mrormanon provided in Ih" oennon II .nd correct. [TIle and correct. thor I am Ihe fureign representanve oi a deblOf 1M a torergn [If pennener IS on indiVIdual whose dehlJ are prlmanly consumer debts and hOI proceeding, and mall am authonzed 10 tile thIS penuon, chosen 10 tile underchapter 7/ I am a w nrc Ihal I may proceed under cheerer 7. 11. 12 ur IJ of ntle II. UnitedStorts Code. undenrand the relief a.,IIable under each such ICheck only on. box.) r l.,·lr t e-r. 'md .: h no ~ t' " , ( ' rr" ' f' ~d t1l1dt r ch.mrer I IIf no "1tomev representsme and no h,nkruDlcvpention preparer slgnllhe pennon] I 0 I r.~ucsI relief in accordance with chapter 15 or Illie 11. United SULCI Code. Cerurled copies of the documents required by II U s.c. 4 1515are attached. have ootamed and read the nolice required by II U S.C. l J42(b). 0 l'unUllJlllo II U.S C. § 15II . I request relict" In accDrdance wuh the

- I request re1ler in acta ance wnh the chapler or litIe J I. UnIted Stares Code. chaprer oftnle II speeifled in thiS pennon, A o~nllied copy or'the specnred .n Ih,s permo /"" order gmnnng recegninon or'the foreign main proceeding ISattached. /J . X / ~ I~ /PU X Signalure 01 ebtor (SIgnatureoi Foreign Representative)

X S'"glure OlJOI~tor IPrinted Name at' Foreign Representanve) -, '-9 - > I - 47'1 Telephone NumberIif nor represented by anornev) I 2. ~ '2,0/<:> D.lle flJle _';illnl lu.. of Allorn.y" S/~•• 'U~ of Non.Allorney B•• kruptcy Pelidol Prep.rer

X r declare under penalty of perjury lhar. (Ill am a bankruptcy pennon preparar as SIgnatureolAllomey ror Debtons) defined In II U.S.C. ~ 110: f211 prepared rhll document ror comeensenon Hndnave provided the debtor wlm a copy or ,hi. doo:umcnt and Ihe notice. and InfOmlllllOfl Printed Name of Allorney for Debtons) required under II U.S.C. ~IIIO(b). ItOlhl. and H2(bl: and. (3) If rules Dr gUidelines have been promulgated punuanl 10 11 U S.c. ~ IIOlh) sellIng a Form Name maximum ree ror services ch~oab!e bv bankruplcy pennon prepareD.! have given the deblor notice of the II1IXlmum amounl belb", prepllt1ng any document ror tiling lor a deblor or ""ecpllng any ICe from Ihe debtor, as requtred ,n thaI section. Ollieial Fonn 19 i. all:lChed. Address

rciephone Number PrinredName and tnle, If 3IlY. of BankruptcyPetlllon I'reparcr

Oa,e Sucrai-Seeunty numher lif the bankruptcy pennon preparer II not an indiVidual. state the Socral-Seeurity Dumber of the ntlicer. pnnctpai, "In a case in whreh ~ 7071bj(4 WD) applies. this SIBnalute also constitutes a responsible person or partner of the bankruptcy pennon preparer.] (Required .mlfic:won thlUlheallOmeyhilS no kDowledge arlar an inqUIry that rbe mrormanon by II U.S.C. ~ 110.) In Ihe schedulel II incorrect.

Si~.llu" of Ueblor ICorponrionJPINn,nhip)

r declare under penaltyor ocrJury rhlUlhe mtormencn provided In rhis pennon II true AddrcS! .nd correct, and thai J have been aurhonzed 10 tile rhlS pennon on behalf of rho X debtor.

The debtor requests lhe rehef 10accordance Wllh rhe chaprer of IiII. II. Uniled Stalel IJale C,"Ide. specllied in rhls peallon. Signoture of bankruprcy pelllion preparer or utticer. principal. r",ponSlble pel5Oo. X or panner whose SO<:lal·Secunty number IS prOVIded above Si~nature of Authollzed IndlvldU41 Names and Socia/-Sccunty number.! of all olher IOdlVlduals ",110 prepared or I'nnted Name of Authonzed IndiVIdual lISSlSled In prepannllm" documenl unl..s the bankruptcypelmon preparer ISnot an Title of Authonzed IndiVIdual Individual.

Date !F more thm one pC150n prepared thl! documenL :lltaeh lIddillonal sh.e.. contorming 10 the appropruua oUicial timo lor each pcl5On.

A banknJprCllprnllon pr.par., 'J fatlun /0 comply 'With th. prnmlonJ of rill, I I and th' Frd'ral Rul.. of BanlrnJprcyP1'fJCrdunmar 'esulr In ;in .. 0' /Inproonmtnt f), horh. fll:.S.C. ' ((I1:!R IiSC .156.

Appendix to Appellant's Brief - Page 16 of 69 81 ,-,U':>O I U-JO;J.Jo-::;YJ l,j UOC 1 riled 12/06/10 Entered 12106/10 13:17:26 Desc Main Document Page 4 of 8

£lID (OfficIalForm I. E:dl.bilou 12109)

UNITED STATES BANKRUPTCY COURT

ln re A.(I-t,',,,,,, iJPk--. Itf/"r;. .... {l/t' Case No. _ Debtor (if known)

EXHIBIT D • INDIVIDUAL DEBTOR'S ST ATE~[ENT OF COMPLIANCE WITH CREDIT COUNSELING REQUIREMENT

Warning: You must be able to check truthfully one ofthe five statements reqarding credit eounseling listed below. If you cannot do so, you are not eligible to file a bankruptcy case, and tlte court can dismiss any case you do file. If that happens, you will lose whatever filing fee you paid, and your creditors will be able to resume collection activities against you. lfyour case is dismissed and you file another bankruptcy case later, you may be required to pay a second filing fee and you may have to take extra steps to stop creditors' collection activities.

Every individual debtor must file this Exhibit D. Ifajoint petition is liled. each spouse must complete and file a separate Exhibit D. Check one ofthe jive statements below and attach any documents as directed.

d"1. Within the 180 days before the tilin~ of my bankruptcy case, I received a briefing from a credit counseling agency approved by the United States trustee or bankruptcy administrator that outlined the opportunities for available credit counseling and assisted me in performing a related budget analysis. and I have a certificate from the agency describing the services provided to me. Attach a copy ofthe certificate and a copy ofany debt repayment plan developed through the agency.

o:J 2. Within the 180 days before the filing of my bankruptcy case. I received a briefing from a credit counseling agency approved by the United States trustee or bankruptcy administrator that outlined the opportunities for available credit counseling and assisted me in performing a related budget analysis, but I do not have a certificate from the agency describing {he services provided to me. You musttile a copy ofa certificate from the agency describing the services provided to you and a copy cfany debt repayment plan developed through the agency no later Than I.J days after your bankruptcy case is filed

Appendix to Appellant's Brief - Page 17 of 69 82 case 10-38538-sgj13 Doc 1 Filed 12/06/10 Entered 12/06/10 13:17:26 Desc Main Document Page 5 of 8

OlD (Official form J. E.,". Dl/ 12:09)- Cent.

:J J. r certify that r requested credit counseling services from an approved agency but was unable to obtain the services during the seven days from the time r made my request. and the tollowjn~ exioent circurnsrnnccs merit .1 temporary '.\ .Ii vcr of the ..redit counseung rcquiremem so I can tile my bankruptcy case now . [Summarize exigent circumstances here.]

If your certification is satisfactory to the court, you must still obtain the credit counseimg briefing within the tint 30 days after you file your bankruptcy petition and promptly file a certificate from the agency that provided the counseling, together with a copy of any debt management plan developed throu~h the agency. Failure to fulfill these requirements may result in dismissal of your case. Any extension of the 3D-day deadline can be granted only for cause and is limited to a maximum of 15 days. Your case may also be dismissed if the court is not satisfied with your reasons for filing your bankruptcy case without first receiving a credit counseling briefing.

a 4. I am not required to receive a credit counseling briefing because of: [Check the applicable statement.] [Must be accompanied hy a motion/or determination by the court.]

,: I Incapacity. (Defined in II U.S.C. § I09(h)(4) as impaired by reason of mental illness or mental deficiency so as to be incapable of realizing and making rational decisions with respect to financial responsibilities.); :I Disability. (Defined in II U.S.C. § 109(h)(4) as physically impaired to the extent of being unable, after reasonable effort, to participate in a credit counseling briefing in person, by telephone. or through the Internet.); J Active military duty in a military combat zone.

::J 5. The United States trustee or bankruptcy administrator has determined that the credit counseling requirement of II U.S.c. § I09(h) does not apply in this district.

I certify under penalty of perjury that the information provided above ill true and correct.

Signature of Debtor: ;:..;&'f---"-+-----f<'-- --- Date: 11,- i2C-').olc

Appendix to Appellant's Brief - Page 18 of 69 83 vd~~ I u-.)oo.jlj-s9J1j UOC 1 Filed 12/06/10 Entered 12/06/10 13:17:26 Desc Main uzu 1A IForm 20 IAI ( 12:09) Document Page 6 of 8 WARNING: Effective December 1,2009, the IS.day deadline to file schedules and certain other documents under Bankruptcy Rule 1007(c) is shortened to I~ days. For further information, see note at bottom of page 2

NOTICE TO CONSUMER DEBTOR(S) UNDER §342(b) OF THE BANKRUPTCY CODE ; 11 JCConlul1CI: with ~ 342(b) ottne Bankruptcy Code. this notice to individuals with primarily consumer debts: (1) Describes briefly the services available from credit counseling services; (2) Describes brietly the purposes. benetits and costs of the four types of bankruptcy proceedings you may commence: and (3) Informs you about bankruptcy crimes and notifles you that the Attorney General may examine all information you supply in connection with a bankruptcy case.

You are cautioned that bankruptcy law is complicated and not easily described. Thus. you may wish to seek [he advice ofan attorney to learn of your rights and responsibilities should you decide to tile a petition. Court employees cannot give you legal advice.

Notices rrom the bankruptcy court are sent to the mailing address you list on your bankruptcy petition. In order to ensure that you receive information about events concerning your case. Bankruptcy Rule 4002 requires that you notify the COUrt of any changes in your address. If you are tiling a joint case (a single bankruptcy case tor two individuals married to each other). and each spouse lists the same mailing address on the bankruptcy petition. you and your spouse will generally receive a single copy of each notice mailed from the bankruptcy court in a jointly- addressed envelope. unless you tile a statement with the court requesting that each spouse receive a separate copy of JII notices.

1. SeO'ices Available from Credit Counseling Agencies

With limited exceptions, § 109(h) of the Bankruptcy Code requires that all individual debtors who tile for bankruptcy relief 00 or after October 17, :ZOOS, receive a briefing that outlines the available opportunities for credit counseling and provides assistance in performing a budget analysis. The briefing must be given within 180 days befOre the bankruptcy tiling. The briefing may be provided individually or in a group (including briefings conducted by telephone or on the Internet) and must be provided by a nonprofit budget and credit counseling agency approved by the United States trustee or bankruptcy administrator. The clerk of the bankruptcy court has a list that you may consult of the approved budget and credit counseling agencies. Each debtor in a joint case must complete the briefing.

In addition. after filing a bankruptcy case. an individual debtor ~eneraUy must complete a financial management instructional course before he or she can receive a discharge. The clerk also has a list of approved financial management instructional courses. Each debtor in a joint case must complete the course.

Z. The Four Chapters of the Bankruptcy Code Available to Individual Consumer Debtors

Chapter 7: Liquidation (S245 filin~ fee. $39 administrative fee. SIS trustee surcharges Total fee 5299) Chapter 7 is designed tor debtors in financial difficulty who do not have the ability to pay their existing debts, Debtors whose debts are primarily consumer debts are subject to a "means test" designed to determine whether the case should be permitted to proceed under chapter 7. If your income is greater than the median income lor your state of residence and family size. in some cases. the United States trustee (or bankruptcy administrator). the trustee. or creditors have the right to tile a motion requesting that the COUrt dismiss your case under § 707(b) of the Code. II is up to the court to decide whether the case should be dismissed. Under chapter 7. you may claim certain ofyour property as exempt under governing law. A trustee may have the right to take possession of and sell the remaining property that is not exempt and use the safe proceeds 10 pay your creditors. me purpose of tiling a chapter 7 case is to obtain a discharge of your existing debts. If. however. you are

Appendix to Appellant's Brief - Page 19 of 69 84 ---- • v VW,",U-~YJ I J UOC ·, riled 12/06/10 Entered 12/06/10 13:17:26 Oesc Main Form B 201A. Notice to Consumer DJg~p1ent Page 7 of 8 Page 2

round to have committed certain kinds of improper conduct described in the Bankruptcy Code. the court may deny your discharge and. if it does. the purpose tor which you tiled the bankruptcy petition will be defeated. Even if you receive a general discharge. some particular debts are not discharged under the law. Therefore, you may still be responsible for most taxes and student loans: debts incurred to pay nondischargeable taxes; domestic support and property settlement obligations: most tines. penalties. forfeitures. and criminal restitution obligations; certain debts which are not properly listed in your bankruptcy papers; and debts tor death or personal injury caused by operating a motor vehicle. vessel. or aircraft while intoxicated fh'm alcohol or t11"!1'~'j. \ hl. if ,I ..rcditor can pro ve .. ,..It.! LiCbt arose (rum rraud, breach or tiduciary duty, or theft. or from a willful and malicious injury, the bankruptcy court may determine that the debt is not discharged.

Chanter 13: Repayment of All or Part of the Debts ofan Individual with Regular Income ($235 filing fee, SJ9 administrative fee: Total fee S274) Chapter 13 is designed for individuals with regular income who would like to pay all or part of their debts in installments over a period oftime. You are only eligible for chapter 13 if your debts do not exceed certain dollar amounts set forth in the Bankruptcy Code. Under chapter 13. you must tile with the court a plan to repay your creditors all or part of the money that you owe them. using your future earnings. The period allowed by the court to repay your debts may be three years or tive years. depending upon your income and other factors. The court must approve your plan before it can take erfect. After completing the payments under your plan. your debts are generally discharged except for domestic support obligations; most student loans: certain taxes: most criminal tines and restitution obligations; certain debts which are not properly listed in your bankruptcy papers; certain debts for acts that caused death or personal injury; and certain long term secured obligations.

Chapter II: Reorganization (S1000 filing fee, ,539 administrative fee: Total fee S1039) Chapter II is designed tor the reorganization ofa business but is also available to consumer debtors. Its provisions are quite complicated. and any decision by an individual to tile a chapter II petition should be reviewed with an attorney.

Chapter 12: Family Farmer or Fisherman (S200 filing fee, $39 administrative fee: Total fee S239) Chapter 12 is designed to pennit family tanners and fishennen to repay their debts over a period of time from future earnings and is similar to chapter 13. The eligibility requirements are restrictive. limiting its use to those whose income arises primarily from a family-owned farm or commercial fishing operation.

J. Bankruptcy Crimes and Availability of Bankruptcy Papers to Law Enforcement Officials

A person who knowingly and fraudulently conceals assets or makes a false oath or statement under penalty of perjury, either orally or in writing, in connection with a bankruptcy case is subject to a tine. imprisonment. or both. All information supplied by a debtor in connection with a bankruptcy case is subject to examination by the Attorney General acting through the Office of the United States Trustee, the Office of the United States Attorney, and other components and employees of the Department ofJustice.

WARNING: Section 521(a)( I) of the Bankruptcy Code requires that you promptly tile detailed information regarding your creditors. assets. liabilities. income. expenses and general financial condition. Your bankruptcy case may be dismissed if this information is not tiled with the court within the time deadlines set by the Bankruptcy Code. the Bankruptcy Rules. and the local rulesof the court. The documents and the deadlines for filing them are listed on Form B2DD. which is posted at ilttp;llwww.uscouqs.goVlbkformstbankruptcyforms.html#procedure.

~f:lny tllln~ deadlines chanae on December 1.2009. Orspecial note,12 rules that set 15 days to act are amended to require action within 14 days, includin~ Rule I007(c), filing the initial case papers; Rule JOIS(b). flJioll a chapter 13 plan; Rule 8009(a). filing appellate briefs; and Rules 1019, 1020, 2015,2015.1.2016, 4001, 4002, 6004, and 6007.

Appendix to Appellant's Brief - Page 20 of 69 85 ---- .- ~~~v,.r"'~J '''' UUl; I rueo IL/Ubl1U Entered 12/06/10 13:17:26 Desc Main U::UIl3IFonn201Bl\ 11,109) Document Page 8 of 8

In re j1;t.(,",l, 11(1""- (+/i.n,,,,,~; Case No. _ Debtor Chapter _

CERTIFICATION OF ~OTICE TO CONSUltER DEBTOR(S) UNDER § 342(b) OF THE BANKRUPTCY CODE

Certification of [Non-Attorney/ Bankruptcy Petition Preparer I. the [non-attorney] bankruptcy petition preparer signing Ihe debtor's petition, hereby certify that I delivered to the debtor the attached notice. as requiredby § J42(b) ofthe BankruptcyCode.

Printed nameand title. if any. of Bankruptcy Petition Preparer Social Security number (If the bankruptcy petition Address: preparer is not an individual. state the Social Security numberof the officer. principal. responsible person. or partner of the bankruptcypetition preparer.) (Required x _ by II U.S.C. § 110.)

Signature of Bankruptcy Petition Prepareror officer. principal. responsible person.or partner whose Social Security number is provided above.

Certification of the Debtor I (We). the debtorts), atflrm that I (we) have received and read the attached nolice. as required by § 342(b) of the Bankruptcy Code.

,dm.'f!.- I)Il'.t rl A-f.-I"''/Of/_'' Printed Namets) of DebIOI1"s) Signature 7~ Date Case No. (if known) _ X._ _---,~---",....,...--:-::-----__=_--- Signature of Joint Debtor (if any) Dale

Instructions: Attach a copy of Form B 201A. Notice to Consumer Debtons) Under § 342(b) of the Bankruptcy Code.

Use this fonn ro certify that the debtor has received the notice required by II U.S.C, § 342(b) only if the certification has :'tOT been made on the Voluntary Petition. Official Form B I. Exhibit B on page 2 of Form BI contains a certification by the debror's attorney that the attorney has given the notice to the debtor, The Declarations made by debtors and bankruptcy petition preparers on page 3 of Fonn B I also include this certification.

Appendix to Appellant's Brief - Page 21 of 69 86 .. \~,~ , ,. ~ J o,

NOTICE OF TRUSTEE'S SALE

DATE: December /0.12010 PROMISSORY NOTE #1: Promissory Note described as:

Date: September 10, 2007

Maker: Grapevine Diamond, L.P.

Payee: City Bank Texas

Principal Amount: $6,375,000.00

Amended by: That certain Renewal Promissory Note dated as of March; 10, 2009 by and between Maker and Paye~ ~ ~ ~.~ i n":~ {:) ~:: PROMISSORY NOTE #2: Promissory Note described as: ! I ~d~ [IJ' ..:;: .. _ :;~ -~ -f i:: :-, - ::-: .<::r" .,. i.::. i-:= Date: July 29, 2009 'J~~ ~~ :~li ;]]i~; °

Payee: City Bank:

Principal Amount: $150,000 .00

DEED OF TRUST: Deed of Trust, Security Agreement and Assignment of Rents, Leases, Incomes and Agreements described as:

Date: September 10,2007

Grantor: Grapevine Diamond, L.P.

Trustee: Mike Liner

Beneficiary: City Bank Texas

Recording Information: Recorded under County Clerk's File No. 207343376 in the Official Public Records of Tarrant County, Texas.

Amended by. That certain Loan Modification Agreement dated as of September 10, 2008 by and between Grantor and Beneficiary, and recorded under County Clerk's File No. D208397416 in the Official Public Records of Tarrant County, Texas; that certain Modification of Real

~ !g lic e otTruslcc's Sale- Page J r:"'r- EXHiBIT r-> ----- w

Appendix to Appellant's Brief - Page 22 of 69 87 1 \1 .

Estate Note and Lien dated February 10, 2009 by and between Grantor and Beneficiary, and recorded under County Clerk's File No. D209060794 in the Official Public Records of Tarrant County, Texas, and; that certain Loan Modification Agreement dated as of l'-1larch 10, 2009 by and between Grantor and Beneficiary and recordedWIder County Clerks File No, 0209246789 in the Official Public Records of TarrantCounty, Texas.

LENDER: City Bank Texas

PROPERTY: SeeExhibit A attached.

SUBSTITUTE TRUSTEE: M. AndrewStewartor Michael Hicks SubstituteTrustee's Mailing Address: 1500Broadway, Suite 700 Lubbock, Texas79401 or SUBSTITUTE TRUSTEE: Chad Farrar,Brett Stecklein, RyanMoshell SubstituteTrustee's MailingAddress: 2911 Turtle CreekBlvd, Suite 880 Dallas,Texas 75219

DATE AND TIME OF TRUSTEE'S SALE OF PROPERTY:

January 4, 2011, being the first Tuesday of the month, to commence at 10:00 AM, or within three hours thereafter.

PLACE OF TRUSTEE'S SALE OF PROPERTY:

The base of the courthouse steps on the east side of the building located at 100 West WeatherfordStreet in downtown Fort Worth, Tarrant County, Texas,

Default has occurred in the payment of the Promissory Notes and in the performance of the obligations of the Deed of Trust, which secures the Promissory Notes. Because of such default, Lender, the holder of the Promissory Notes and the Deed of Trust, bas requested the Substitute Trustee to sell the Property in accordance with the terms of the Deed of Trost and applicable law.

Additionally, this posting ofthis Notice of ForeclosureSale is being done pursuantto the terms of an Order on City Bank's Motion for Relief from Automatic Stay which was entered November22,2010 by the BankruptcyCourt in the Maker's bankruptcy case known as CaseNo. lO-32368-BJH; In Re: GrapevineDiamond,L.P., Debtor; In the UnitedStates Bankruptcy Court for the Northern District of Texas, Dallas Division. A copy of said Order is attached hereto as Exhibit"B".

Therefore, notice is given that on the Date and Time of Trustee's Sale ofProperty and at the Place of Trustee's Sale of Property, the Substitute Trustee or such other trustee as Lender

Noliee ofTruslcc's Sale- Pags2

Appendix to Appellant's Brief - Page 23 of 69 88 c .. , ," . "

may subsequently appoint, will sell the Property by public sale to the highest bidder for cash, in accordance with the Deed of Trust and applicable law. The sale and conveyance of the Property will be subject to aU matters of record applicable to the Property which are superior to the Deed of Trust. Substitute Trustee has not made and will not make any covenants. warranties, or .cpresenratious concermng the Property other than providing the successful bidder at the sale with a deedto the Propertycontaining any warranties of title requi d by the Deed of Trust. The Propertyshall be sold "AS IS. WHERE IS", and W F TS.

M.AnClrew SubstituteTrustee

ACKNOWLEDGMENT STATE OFTEXAS ) ) COUNTY OF LUBBOCK ) This instrument was acknowledged before me on December l~ 2010, by M. Andrew Stewart, Substitute Trustee.

My Commission Expires: NotaryPublic, Stateof Texas

Notice ofTrusle<:'S Sale- Page 3

Appendix to Appellant's Brief - Page 24 of 69 89 I 'i" , Q o ... 8. '-. 0 lleillg n trHetonllul! ~il\1I1tcd 1111110 U. SugllS Survey,Abstract Nunlbcr1415111 the elly of Gl'np~villll, TarrftlltCOllllt)', 'l'exos. 5nid trnet Isalso an llsscmbfllgO of six Jlldlvidullltrllcl~ liS shown hoteln snd lit total descrlbcd moreparlitUlnrJy liS follows: UEGlNNINO lit tlieU.s. ArmyCorpsofElIlltnClS'# monument atop II squnroCOllcreto posllocRtcd lit the mosl clIl>1erl)' :;OUlllclISt cornororn 37.59l101'0 tnm efland I1cserfllcd ng TrIIot No. A-3A In a Deehll'n1lon ofTllltlng by the: U.s. Army ~Ilr(ls ul'ElIGhll:er¥ 1lIIIIIJcilllr Rpan of tllo~llmo InUIi convoyed to Mrs.lllrlllc EllzllbC!th Brown by Mrs.Lolu Buokaloo by doed dnlQd 7 December 1934Alld recordedIIIVoluma 1238Ilt1'lIgo 373 altho DeedRecords orTarrllJltCounty, Tents. Snlllllrnss mOIlUllIent 11l5l1l1olnx lit 1110 $onUnvest cornorDr1l1).23 acro tract Ilcqulredby IIgreCtncut from tho U.s. ArnlYCo~ ufEUlIlllecn.

TIllI:NCE North I)ldegr

. Soulh 00 degrees OS IIIlnutlls :18 second,ElUtII dtstnnco of7ZJ:J9 tccHo a l'K nnllfound.

SoutlJ 90 d0l:rcos 00ntlnutu 00 SC!c:onc1ll E1Ist Rdisbmeeof17.99 feet to HlJ2lndllrolJ rod round. s outh,O~ dcgrcos (Iii minutcs:36 Roonds E~t R dlstllJ1eo of 437.5Z fcetto a 111 InchIron rod ~ with I cap¥tllntpcd SCI 24G6'.

SOUUI 16dagrcll1l21 ndllutes2G socond,WC3t n dlnnnceof 153.07 feoUo D lIZ InchIran rod setwitl\ II cap stamped SUR· TEX24GIi. •

TIIENCENorth 6!1I1C!3rces 30 mInutes 28 SClcolld$ West II dbtanee of39.53 feot to n ntag JUI11 with shlncrstanlpedJPII Lnnd SurveyIng lit the mostsoutherlycorner of ft 3.15 norepRrtc:1 Dr land dcsorlbl!d In II deed 10Willlnm D.Ibnrcldt IUId Ronllld WllrrIck recordedIn Voluma5008,l'agc 257 of tho Deed ReCllrdll orTRrrllDt Coant.y,TCXllf. 1'IlENCE 1I10ng the: 50utlillmiwut Unos ohald Dlllfcidt I WlIrllck pllrcel and along tJle\Iorth Rnd ellSC lines of. parcel of Inml deserilledIII II deodto ClIrtcr GrapovJne Ilnrtncrs Document No. DZ041890:l4 recorded lu tho Deed ll.eearlls of Tnrrhnt Coonly, TOXllS .ho following:

\'forth 12 degrco.l 21 mlnullIJ 19 secondsEut I distance of!12.30 feet 10 a In.. InohIron rod found"Itb eap stnnlpc:cl JPH l:llld Surveylog. North 71 dCGr~Ds 23 minutes 12 seeollt!$ WostII drsh!lIC:o of12Ul feetto a !is Inch Iron rod (oulld. South 116 dllg1'GOS 32 niluutcslit secouds West It dlsllmcG 0(221.12 fllCt.o " linch pIl'Q fouud. i'Iorth 00 dCllrcC!$ 21 minQlllJ 00 secoud' Eut II dbtlllll:eof373.70fcotto a liZ. InchIron rod foundwJthClIp stllmpod SVR-TEX 24GG lit thonorlh\1est eorllOI' at thesuitllhnfclcJt/'Wnrdck Irllct,~llJd point also being the sauUl\'(es( cornOJ' of 1I pnreel ofland dcserJbcd Iu II deed to JIlInCS .Rollnd Upton nlldwIfoJrtyc:o JUJa OptOJI recorded In Volume 62114 1'lIee 731i oC tileDccd !teeords ofTllrraur County, Toxar.

TIIh"NCE North 01 dacrcCf 29 mlnuloll'11 sceolldll West IIlong thow~t Uno or tho ,md Upton trllct lludthcenstUne or t1Ic .:tid Carlor Grnpovillo Flll·tllenr trJlot u dlstlJDce of140.85 C

'l'IIENCESouth 88 ducre~ 30 Dllnutc:.l13 secolldsWest \llong tlJll nordt 11110 of the CKrtllr GrlljlCv!JllIl'amlcrs tract and !hesoutll Hneof tho abovesRld aqrocmOJlt trllCt n cllstanco oC31.10 ~etlo tho1'OlNT OF13EGlNNING lllldeDlItnlning <152.588 squllro feotar 11).39 acres ofllmd. EXHIBIT

I~- ,A

Appendix to Appellant's Brief - Page 25 of 69 90 Page 1 of 7

NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE ANATURAL PERSON, YOU MAYREMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATIONFROM TlDS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YO~S6C~ SECURITY NUMBEROR YOUR DRIVER'S LICENSE NUMBER. I ~. ": .

{. 4; . '<. • ••••••• CORRECTION FORECLOSURE SALE DEED -, ." \.

Date:" ' -.,j~'lt2011 . .... . to be effective on January 4,201] ."

Th~·:fg·l~.~i~~·~scribed Foreclosure Sale Deed, which was originally dated January 4, 2011, and filed o(r~cor.p..OJl·-JRtl~ 5, 2011, at Clerk's Instnnnent # D2] 1003133 in the Official Public Records"efIartaht C9~.ty, Texas (the "Corrected Foreclosure Deed")is hereby corrected by this filing, and this filin~f"is 'ma~ in substitution of the Corrected Foreclosure Deed, to correct the following: the ··pr~pei1y. ... d~~~~ption for the "Property" (as such term is defined in the Corrected Foreclosure

I, as Substitutl Trustee, do herebybind Grari~;{~~~~£&'t~rm is defined in the Corrected Foreclosure Deed), and Grantor's heirs and assigns to *~t ~4"f~rever defend the Property to Buyer and Buyer's heirs and assigns forever, against the···c.i~ 9r'd~s of all persons claiming the same or any partthereof. --~;.,.... " ~"" "" ':-' '. '\0 " ••- .

This conveyance relates back to the effective date of the=~CtltT~f~d)F~reclosure Deed, and all othertermsand conditions of the Corrected Foreclosure Deed, as.c9rf~ed;'h~rein, remain.

This Correction Deed of Trust restates, reaffirms and ra~~~~::~:·~~t.~th~ respects the ....~ <..-- ..,~ . '.., Corrected Foreclosure Deed. .e-

(..•.:~.~:~:.:.:~:.~..::~ .~'.... <"..•. ~ ..,'~:') . .} .. " ' : ..•..~:' •...:. ,.'" "" ", \

'-. ; , "

..... .~ " .." : l ..,

- 1- Appendix to Appellant's Brief - Page 26 of 69 91 - - - - -- - _._ - --- Page 2 of 7

EXECUTED on January EL~ 2011 to be effective as of January 4, 2011 .

.- ' ,~

" .' .- ....... .'.' .' \...... ~ ..-. ...... .' . :' ,' ., .....'. . STATE-OF·TEXAS ." ~. § § \ ..... . '-

COUNTY OF DAU:;i<\S §

BE;~'~i~:,~(f'ii~a~rsignedauthority, on this day personally appeared Ryan Meshell, as Substitute TriiSte§.;:,·rm,O~·..t0 me to be the person whose name is subscribed to the foregoing instrument, and wJiQ'-"ack1iOwl~dged to me that he executed the same for the purposes and consideration therein ~xp~.esS~.d:·IiI\'d'in the capacity therein stated.

Given under m;··~~~;ili4..~~iil,,0f officeon thisthe J.2.. dayof 1anuary, 2011. (,~~~..>:.:...·~·.r:·· :·

...... .... .-: ' -..... , ..... i

'0, •.• • " ••- <: " .... ". ~

.' ... ...... .,' " ' ; .... ..- , ,>" 0'

." . ...

AFTER RECORDING. RETURN TQ:

MULLIN HOARD & BROWN, LLP Atto: MichaelD. Hicks P.O. Box2S8! Lubbock, Teus 79408-2585

-2-

Appendix to Appellant's Brief - Page 27 of 69 92 Page 3 of 7

ARer RrtOrdllIIRrlUI'IlIO: MIlLUN HOARD &I BROWN, LLP.AttII:Mldlld Hkb, P.O.1011585, Lubbocll, Ttl" 79401-1585

TARRANTF'IL€D FORECLQSVRE SALE nEED C0l.JNry Dale: ""'. January 4,2011 1811JAN ..s TeXAS Deed of Trust.; P/I 2t21 (' <:~9at~L··~;:· September 10,2007 HA~dU~~'jISE G'4R \,...__~.AfO!!!. Grapevine Diamond, L.P~·· r CLfR,/1A ",~~~ijal ~eDder: CityBank Orlgja,l'BeiitCiciary: City Bank T~i~ec"' < ~; ). / ....... ow . a > •• ~ ~.,. ..... 'w' • •' .~. Mike Liner SUbstit1ttc''T.nist"~·., , ,,' ....... .' Ryan Moshell \:::.. "". .~

Reeording.ln"'~~atlo~w.::····.. Recorded under County Clerk's FileNo. 207343376 in the ('" ::.: ,.> Official Public Records ofTarrant County, Texas

Amended bY:· · · · ;· : : :.~·~~~~~ Loan Modification Agreement dated as of September ;'1 Q;'" 2OQ$/by::~ between Grantor and Beneficiary, and recorded ··upaeit. C9unjy" Clerk's File No. D208397416 in the Official Public R"9n&.or.t~t County, Texas; that certain Modification of Real Estate- Note-.'~···:Lien . dated February 10, 2009 by and between Grantot aM:- a.1jcWy.. and retOrded under County Clerk's File No. D20~~4·t~..tlic Official Public Records of Tarrant County. Texas, and;~-tti8.~ .ccrtain LQaI) Modification Agreement dated !IS of March 10, 2-009 by IItId' between Grantor and Beneficiary and recorded under CO\lJ1t)r Clerlcs File No. 0209246789 in the Official Public Records of."~teo~iy, Texas Property: See Attae~~d~~ii~:t.;A·~ Note #1: ./ (....;..,: /! •• • •• ~ . . . ..... " . : . . .. . . H ... . . . . . t

Date: September 10,2007 :.., ." '-'"': "; Maker: Grapevine DiamonlL.!P.;\..:'./.....\ Original Principal Amount: $6,375.000.00 ',.. <.'.:::.':.,..~., _-,:>.. .

NoteNZ::·' P·Y~ :~::09 ><~2j':» ...-"".-

:::~~:ptiAmo.. =~iWDOn~L.P.../;:. :(~,;:;::~ .>, ,'" ~" "

t:

• ,0'· ••• • ••••. ••• •:. .0 -'. :.... ... . , .J ' .., .. .. ..

.. ~. .'

FORECLOSVRESALE DEED-PAGE 1oF3

Appendix to Appellant's Brief - Page 28 of 69 93 - - - -- - - - - - - - - - - - --- - - - Page 4 of 7

AtlerRecordIIII Relll... la: MVWN HOARD 41 BaoWlf, LLP.ARlIt Mlcllad HIcks, P.O. Bm 258S, lAblMck, lew ',....1585

Date of Sale of Property: January 4. 2011 (fust Tuesday of month)

Ti~e·S~I~~~i.property Started: 11 :45 A.M. 1(i~e·· ·s.~Je" :'•. Property Concluded: 2:10 P.M. (sale was reconvened to allow cash bidder to \" - ':-'-'''". produce a cash bid, which was not produced at the ....- "'~: ",:'-. reconvened sale) ". . . Place·of·SaJe-of, Property: The base of the courthouse steps on the east side of the building (........ ;.......... .,... ... ' located at 100 West Weatherford Street in downtown Fort Worth, ,... / / ) . ...·....TarrantCounty. Texas ".. - I"..·..• ..' ", ...\- ,... .. .< " • Buyer: . ~;:.: '" City Bank Buyer's Mailing:~d~~;..\.>.~·(·.> 52)9 City Bank Parkway [include counl)i~ f · .•..:-' Lubbock, Texas 79401 .' : _ ~ ' .LubbockCounty, Texas '"..'; ~:/'" -.; "1 .':' Amount 01 Sale: ~ !'_ " ' ··..·Gref{ifBid ofS3,OOO,000.OO ..... ' I l _ ... ~. , ••• • • ~ •• :~ •. , • • ••

By Deed of Trust, Grantot..«)oVeYe!i to Mike Liner, as Trustee, the Property for the purpose of securing and enforcing 'p~ypj.mt of the,iqdebtedncss and obligations therein described (collectively, the "Obligations"), \ inoluClipg;..b1it ..not limited to Note #1, all renewals and extensions of Note #1, and any and 'ill.-pf.ese~t,aIid future indebtedness of Grapevine Diamond. L.P. to Beneficiary. whichincludes Note~~~~ "'" , .

A contingency stated in the Deed precedent for theappointment of OfTruSl~:,(c~~on a substitute trustee occurred, and Ryan Mo~ell:::WlIS "appOinted as a Substitute Trustee by an Appointment of Substitute Trustee executed ":bY_~"Bunk, dated December 9, 2010. and recorded in the Official PublicRecords ofTammt Cq,Unty.l'ew. :, t~ »< ,".' Default has occurred in the payment of theNCite.when'(iue:City Bank, the current Holder of the Note and the current Beneficiary of the Deed of Tiii'~ fequested Ryan Moshell, as Substitute Trustee, to enforcethe trustof the Deed ofTru~, ! ~:•. / \ \,-_ -. •.. .

On April 5.2010. the Grantor filed a Chapter 7 bankrU"~tcy·.peti~6~ in the United States District Court for the Northern District of Texas, Dallas DiviililJn•..in):~as~.No. 10-32368-BJH pUni~g into effect an.automatic stay pursuant to 11 U.S.C. §362.·~!3vV~.y~!;; pu~uant to an Order on City Bank's Motion for Relief from Automatic Stay, entered bY .1he ~ptcy Court on November 22, 2010, the Bankruptcy Court lifted the automatic staytip.·f~vOi- .9( Beneficiary to proceed with the foreclosure sale described herein. :: . . -:: '.'. '. ~ ... ~. .... . '\

Pursuant to the requirements of the Deed of Trust and the Jaws of ~>~~.te::of.T~xas, written notice of the time, place, date, and terms of the public foreclosure side·:of.·th'e ~perty was posted at the courthouse of Tarrant County. Texas, the county in which··:'i·~·'~i'6P~Jtr'; is ->, situated, and 8 copy of the notice WIlS also filed withthe county clerk of Tarrant C~t~ ·T-exas ( ·· each notice having been posted and filed for at least twenty-one days preceding the date' of-the foreclosure sale. . .

FORECLOSURESALE DEED- PAGE 2 OF 3

Appendix to Appellant's Brief - Page 29 of 69 94 Page 5 of 7

Arler RecordllllRet.FII101 MllWIt HoAU" BROWN,LLP. AltaI MlclIatI HlelIs, P.O,8011515,Labbock, Tu.. '79401-1585

Additionally, written notice of the time, date, place, and termsof the foreclosure sale was served on behelf of the current Beneficiary by certified mail on each debtor who, according to the rec;.ordsj>fthe current Beneficiary, is obligated to pay any of the Obligations. The certified- m~il'iioJices ~ere timelysent by depositing the notices in the United States mail, postage prepaid iu' pm"jier.an1ount, and addressed to each debtorat the debtor's last known address as shown by t~ rec6~.s-··#f. the current Beneficiary at least twenty-one days preceding the date of the foreelostii:o{· ,L.

· '~~~:~~~.n~~ic.~ of default and of the eppormnity to cure the default after maturity of the Notc waS. ~e~.o~ behalf of the current Beneficiary by certified mail on each debtor who, according toittH:' J~o~ ...p f· ~ current Beneficiary, is obligated to pay any of the Obligations. The certified~rn.!!I..n~tiCes ~t;rC timely sent by depositing the notices in the United States mail, postage prepaid in···Jn:ope~;:·amo\1n.t, and addressed to each debtor at the debtor's last known address as shown'by-th~rec9~Qttbe currentBeneficiary. :' , :: : . In consideratibo'9f..th~·P'iCmises and of the highest unconditional bid and payment of the sum of $3,000,000.00, :bl··~aY .of-,a·-.;:redit bid against the obligations owed to the Beneficiary, such bid made by Buyer, I;' 8$···Su~t}tuta· Trustee, by virtue of the authority conferred on me in the Deed of Trust, have · Q~r.sD·;·.:S(jLD, and CONVEYED and by these presents do GRANT, SELL, and CONVEY::to··~.uier;·B~yer·s heirs and assigns, all of the Property, to have and to hold the Property, to8ett,lCr.. ·~~ tlte rights, privileges, and appurtenances thereto belonging unto Buyer and Buyer's,.)lci:i!.1UiitassisnsJorever. - .".~ 0"·" ' . .:: • ,.,

I, as the Substitute Trustee, .b~b1bind ~tor and Grantor's heirs and assigns to do·. warrant and forever defend thc Property'co'Buyer llmrBuy~r's heirs and assigns forever, against the claimor claims of all persons claimingthe same 9r'~y P.art thereof. .... ...,.. ..... ' "

EXECUTED on January 4. 2011. \.\,~'.'~:'.:~~:::'" :~_-, "

STATE OF TEXAS § § ~ \·..2~>.~: .:.: ·:~ ·~~:.:. ~~j •

COUNTY OF DALLAS § ;~. . ~

.. ~. ..,.:"....,....~:=- BEFORE ME, the undersigned authority, on this day pe~'oi~Ji~..ap.~.d Ryan Meshell, ?S Substitute Trustee. known to me to be the person whose name is.·~ubS~.p~ 19 the foregoing instrument, and who acknowledged to me that he executed the same.Jor Jhc__ purposes and consideration therein expressed and in the capacity therein stated. :::.....-;:......_.:..,......, i /": : Givenundermy hand and sea! or office on this the 41/1 day of ]anuaryi·20ll .<~ ., / ·:.

ffu. L.:.. -P ?i1:;;'>, Notary Public, Stat~ '. .>-~ ~ : . . :

FORECLOSURESAlt: DEED - PAGB 3 or 3

Appendix to Appellant's Brief - Page 30 of 69 95 Page 6 of 7

. ~

o Deing IIlrRet orJlInd situatedIn litolL Suggs SUl'VCY, Alntract Numlxlr 1415 in the elly of Grllpovine, Tal'l'llnt Counly, TCXDS. Said lnJet Is alsoan u~'Somblago of sixIndlvldualtnctllli shownhonlillllnd ill lotll dC3cribed morepardc:ularly II» follows: .... . n'EGIN.Nt\'oiG.~ tile U.S. ArmyCorpsof Enj;lnccrs monuml1nl alop Rsquaroconcreto pOSlloclltcd III the mostllUslerly sout~AIt. ecirpCf4f n 37.59 aerG tract of'landdcscrlbcd u Tract No.A4A ID II DcclRratlon ofTaldng by thoU.s. Army <;orp~.c,fE~cbieer.slindbeing II part of the 1I1tlliC lMd convortel to Mrs, D1n1le Ellzalxltll Brown by Mrs. Loll Buckuloo ~ d~~_JllllQd .'1··Dcccm1lcl' 1!l34 and recordedIn Volume 1238 It Pllp373 of tila DeedRecordsofTarraSlt County. T"Ol!llS. Sn!~· b~lISli'J;UOnumout alsobelnK III thosoulbwest corner of II 0.23aerotmet ncquiNd by IIllrccDteut from tho U.s. Arri\y-ciirp"'uf EIlglllecn. . ... . ... ..'. ;

TnEN~~N~ QI,demrllel7.9 minutlll58seconds East along tho cut llaeor tho u.s. Army CorpsofEngineer. tract aud Clio 'Welt Une Qr. t4e--aboVD IlIld0.23aero agreement tract a distllneo ofCi42.56 fellt to II lIZ InebIronrod found with clip stllMJMd SCI'2466•.S1ifiJ pellat allo bcdng 'ho DorthWC3t comer of II 0.9' aeroparcelof lllnddc:suibcd Ina deedto W.D. thnroldt recorded'ln.Vblwit...aIl"~Pllge lGS ortbe DeedRccorcll and also bema the southeRit earner ora 108.72 aere parcelof laltd cf~riltcd lA\a t1e~~He~IIIA CtlIpeville Joint Venture rccord~ in Volumo 13125, Page505 of thc Doed ..' . . nocords ofTltrraniC';"lint,YlI:9:ia1t' "'.\ TIlENCE Nortb 89 cili~·~·R1I,n~~·9:~eol1d. EllstaloDG tho north 1I1l~ ofllll~ Dmfoldt pllrcel n distanceof37!f.14 reel'0 •w. illch Iron~ ~~th·Cap..ltampGd SCI 24G6, plISllng dlo northeASt corner of the Ih.feld. pan:e!at 340.87 foaL Said comer beIng hhbowOs.CJl~c. or.• City of Gnpovioe,'tau StAte RJllht ofWayDeedrccorded ill Volumo IZ741, PaRe 49G ortllo Dead Rocoi4!l .Gr';rarr!'J~t 'C9unty, Texas. r' " .: .: .! ....-, TlIENCE Ill" southerlydlrcctfl111 jllo~I 'thc ~I.I~ of theSllid Street RIght ofW.y Deed the ronowlng; '\ \ r OO' t

Soudl00 degrees05 minum 18'~COJ:l;i;E:CSS(~dISla.nc:o of713.29 teetto a PK nailfound. ", r' " •..•.• •• • -'- -. ....

Soulb90 dcgr", (10 mlnulAls 00 lecollds,~ .:~lUtCO ~f·l'.99 feet to II 112 Inch lroll rod round. to" , ~ _ . ' • •~. , • ••••• ."

South OZ dcgrcca 06mlnutell36 ICC01Uis E~ ~. ~~..of 437.52 feet to a 1/2Jneh iron rod set with a c:IlP Itampod SCI 2466. ....... ...../ ~

South16 dcgl'01ll21 mlnutt=l2ci second,WestQ dbtllllcc.Jlrf53.o'.rell~to a JI1lncbIron rod sct with II CIP ItIlDtped SUR· TEXG6 24 • ' .' . , . 0::'" ~•. ..., .•' .,' ,.

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I A Appendix to Appellant's Brief - Page 31 of 69 96 Page 7 of 7

MARY LOUiSe GARCIA ~.~.~ •.. COUNTY CLERK

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~ ... . . .. , ..... ~B~ .. ..... ------------------ ~ ........ ~ 100 West Weatherford Fort Worth, TX 76196-0401

PHONE (817) 884-1195

( <../~': : -.<. Ml1l::l~N"\:iOAao & BROWN LLP MICHJ\E~ rf'ftlC1

',,·'(::~~16~T DESTRQY WARNING - THIS is' pjd'Bt QE,THE OEEICIAL RECORD. '~::.... . ' • • • • ~~~ •• • • • • • ,. , ..... 1 · . :

Filed For Registration: 1J12J2o-1.j..t2~26 PM ~\v Instrument#: 0211010078 \ " 'j t c-· • ,.i .. t'

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,.. ..~: .? ANY PROVISION WHICH RESTRICTS THESALE, RENTAL ORUSE OF THE DES2RiBEDReAl::P.f,lOPERTY BECAUSE OF COLOR OR RACEIS INVALID AND UNENFORCEABLE UNDER'f.et>ERI\l~LAW .

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Appendix to Appellant's Brief - Page 32 of 69 97 UOCLO Filed 01/14/11 Entered 01/14/1110:29:11 ,Q.lij~Miiliflvrornr Document Page 1 of 2 'I III n1Ell:"lIlISTRICT OF Tf.X.\S

-,'" \ \' ';'t u.\,:v "fl'i. ' ./" j.. ENTERED ~.~ . "~~:}\"{ \. r \ IV \ .'1;\ Co ." .\ IlS II.\ I.L. CLERK tilE D.\fE OF .::-;TR\· IS lJ'I riff. Cm 'RT'S I)O('I\ET

_ .,. .~ ~'llll~~;~ ~· ....~,; /:-~, ....'"\-: "V 'ln;,.. rRl(.'(, ,,~'( The following constitutes the rullna of the court and has the force ~l " rt f'ff('ct therein descrlhcd.

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I •• •

I

United States Bankruptcy Judge Slgned January 12,2011

Office of the Standing Chapter 13 Trustee 125 E. John Carpenter Frwy, #1100 Irving, Texas 75062 (214) 855-9200/(214) 965-0754 IN THE UNITED STATES BANKRUPTCY COURT FOR THE: NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

In Re: Case: 10-38S38-SGJ-13 .::..r·IIR JOHN AFLATOUNI Doabtor f s) Notice Date: 01/10/2011

Order Dismissing Chapter 13 Case Pursuant to General Order 2009-03

On representation of the Standing Chapter 13 Trustee evidenced by the signature below that the Debtor(s) failed to file the following paper$Qrk and did not file a Motion to 2xtend time for filing same or the time period designated ~n a Motion to Extend has ,=xp~red:

3tatement of Financial .~fairs '::;chedules (A-J) ?lan and Motion for Valuation ?lan and Motion for Valuation was not served on all scheduled creditors, ~uthorization for Pre-Confirmation Disbursement ~opies of all payment adv~ces or other evidence of payment recieved within 60 days of riling (hMIR JOHN AFLATOUNI) ~ statement of the amount of monthly net income. ~temized to show how the amount ~s ::a1cu1ated.

~ n d that 7 days wr~tten notice of such failure ~~s given to Debtor(s) and the Attorney for Debtor(s) . ~f any, on 12/23/2010 prior to submiss~on hereof;

IT IS THEREFORE, ORDERED . that the above proceeding be. and hereby is in all things DISMISSED without prejudice PROVIDED that ~f. ~ith~n fourteen (14) days of entry hereof . a =reditor in this case files a mot~on to amend this order and seeks a dismssal with ~reJudice. 5anct~ons or other relief deemed appropriate by the Court . this Order may be ~mended by the Court. after a not~ce and a hear~ng, to grant the relief sought ~n sa~d 'no t i.on in who Ls or a n part.

l C EXH1B1TcoJJ---.... Y--J---- 1,-, s =

Appendix to Appellant's Brief - Page 33 of 69 98 Case 10-38538-sgj13 Doc 25 Filed 01/14/11 Entered 01/14/11 10:29:11 Desc Main Document Page 2 of 2 IT IS FURTHER ORDERED that all debts due and owing creditors as of this date are NOT DISCHARGED or affected in any manner by this Order .

; ~# End of Order ~#~ ~i gn e d : i sl Thomas D. Powers Ch a p t e r 13 Tl~stee

Appendix to Appellant's Brief - Page 34 of 69 99 UUI.. L.,J- r r-ueu U 1/ /£1./1 I t:nterea Ul/14f11 10:29:11 Desc Notice of Dismissal Page 1 of 1

UNITED STATES BA.NKRUPTCY COURT

Northern District of Texas

Case N~:,;. I 0-385~8-sgj 13 ,::q :t..: r : I '

In Re: Dcbtons) (narnets) used by the debtorts) in the last 8 years. including married. maiden. trade. and address): Amir John Atlatouni aka Johnathan John Atlatouni, aka Foad John Atlatouni, aka Brad John Atlatouni P.O. Box 967 Colleyville, TX 7fi034 Social Security I Individual Taxpayer 10 No.: v...xx-xx-j757 Employer fax 10/ Other nos .:

~OTICE OF DISMISSAL

You are hereby notitied that an Order Dismissing the above case was entered on lil4/11.

Dated: 1/14/11

Tawana C. Marshall Clerk, U.S. Bankruptcy Court

BY: B 2isk Deputy Clerk

Appendix to Appellant's Brief - Page 35 of 69 100 March 14, 2017

Youval Ziv CERTIFIED LETIER NO. 70153430000061272995

President RETURN RECEIPT REQUESTED

Grapevine Diamond, LP

C/O

PACIFIC HOLDINGS I LOS ANGELES 6300 Wilshire Blvd #970

Los Angeles, CA 90048

REQUEST FOR PAYMENT

This letter is my request for payment of the replacement note dated July 13, 1013 in the amount of $2,741,760.51 by Grapevine Diamond, LP.

Yours truly,

John Aflatouni

P. O. Box 967 Colleyville, Texas 76034

Cc: Regular Mail

Appendix to Appellant's Brief - Page 36 of 69 120 Affirmed and Opinion Filed December 7, 2015

In The Qrnur! nf Appeals lJiiftlJ mistrirt nf IDexas at mallas No.05-14-00260-CV

GRAPEVINE DIAMOND, L.P., JONATHAN AFLATOUNI, and YOUVAL ZIVE, Appellants V. CITY BANK, Appellee

On Appeal from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-01876-2010

MEMORANDUM OPINION Before Justices Bridges, Myers, and Whitehill Opinion by Justice Whitehill On the Court's own motion, we withdraw our opinion dated November 10, 2015 and

vacate the judgment ofthat date. This is now the Court's opinion.

In this post-foreclosure deficiency suit, a second lienholder and guarantor challenge a

foreclosure sale by the first lien holder. The main areas of controversy include whether (1) the

first lien holder conclusively established its right to enforce the underlying notes and guaranties

despite an alleged name discrepancy between the loan documents and pleadings, (2) alleged

irregularities in the foreclosure sale defeated the first lien holder's summary judgment motion,

and (3) the sale is void because it violated the automatic stay in the second lienholder's

bankruptcy case.

Appendix to Appellant's Brief - Page 37 of 69 220 More specifically, appellee City Bank loaned appellant Grapevine Diamond L.P. money

to purchase real property in Grapevine, Texas from appellant Jonathan Aflatouni. Appellant

Youval Zive guaranteed the debt, and Aflatouni retained a second lien.

After Grapevine Diamond defaulted, City Bank foreclosed and sued Zive on his guaranty

for the deficiency. Subsequent third-party defendants Grapevine Diamond and Aflatouni

asserted cross-claims against City Bank for wrongful foreclosure. The parties filed cross-

motions for summary judgment. The trial court ultimately denied appellants ' motions, granted

City Bank's motions, and rendered judgment for City Bank.

Appellants present twenty-two issues that challenge:

(1) City Bank's capacity to sue (Grapevine Diamond/Aflatouni' Issues 1, 8, 11, 12, 13; Zive Issue 2);

(2) the adequacy of City Bank's summary judgment motion and pleadings (Grapevine Diamond!Aflatouni Issues 9 and 10);

(3) the foreclosure sale, alleging violation of a bankruptcy stay and other irregularities (Grapevine Diamond/Aflatouni Issues 2,3,4,5,6; Zive Issues l.d, I.e,3.c);

(4) the guarantor's liability, alleging release and novation (Zive Issues 3.a, 3.b);

(5) the exclusion of expert and fact witness testimony on the property's value (Grapevine Diamond!Aflatouni Issues 14, 15, 16, 17; Zive Issues La, l.b, I.c); and

(6) failure to award their damages and attorney's fees (Grapevine Diamond/Aflatouni Issues 7, 18, 19).

For the reasons discussed below, we resolve appellants' issues against them and affirm

the judgment.

I. BACKGROUND

On September 10, 2007, appellant Grapevine Diamond borrowed $6,375,000 from

appellee City Bank, executing a promissory note and first lien deed oftrust covering the property

I GrapevineDiamond and Aflatouniare represented by the same counsel on appeal and filed ajoint brief.

-2- Appendix to Appellant's Brief - Page 38 of 69 221 mentioned below. Appellant Youval Zive guaranteed the indebtedness, exec.uting a guaranty

agreement on the same date. Using the loan proceeds, Grapevine Diamond purchased

approximately ten acres of vacant land in Grapevine, Texas from Aflatouni and his wife.

Under a promissory note dated July 29, 2009, Grapevine Diamond borrowed an

additional $150,000 from City Bank. The parties also signed loan modification agreements in

2008 and 2009. Zive signed the 2009 modification agreement as president of Grapevine

Diamond's general partner and also as a guarantor.

Grapevine Diamond defaulted on both notes, and on April 5, 2010, it filed a bankruptcy

petition that Zive signed on Grapevine Diamond's behalf under the penalty of perjury. On its

related Schedule A (Debtor's Real Property), Grapevine Diamond listed the property at issue as

an asset valued at $2,000,000.00 with a $7,000,000.00 corresponding "Amount of Secured

Claim."

Correspondingly, Grapevine Diamond's Schedule D (Creditors Holding Secured Claims)

listed City Bank as a creditor with a deed of trust. The related collateral is described as "raw

land" worth $2,000,00.00. In the column titled "Amount of Claim Without Deducting Value of

Collateral," Grapevine Diamond stated that it owed City Bank $7,000,000.00, with an

"unsecured portion" of$5,000,000.00.

And Grapevine Diamond's Schedule F (Creditors Holding Unsecured Nonpriority

Claims) listed Aflatouni as an unsecured creditor with a $3,500,000.00 claim.

On November 22, 2010, the bankruptcy court entered an "Order on City Bank's Motion

for Relief from the Automatic Stay" in Grapevine Diamond 's bankruptcy case. In that order, the

court found that (1) the balance due to City Bank was $6,732,506.86, secured by a first lien deed

of trust; (2) "the value of the collateral alone is insufficient to provide City Bank with adequate

protection"; and (3) Grapevine Diamond "has no equity" in the collateral.

- 3- Appendix to Appellant's Brief - Page 39 of 69 222 At a subsequent foreclosure sale, Aflatouni bid $3,000,000 for the property "on behalf of

a client" but could not obtain cash for the purchase price. City Bank then purchased the property

for $3,000,000.00.

Aflatouni filed bankruptcy petitions on December 6, 2010 (under Chapter 13 of the

United States Bankruptcy Code) and January 31, 2011 (under Chapter 11). The Chapter 13 case

was dismissed on January 14, 2011 because Aflatouni failed to file required documentation,

including schedules. The Chapter 11 case was dismissed with prejudice on May 16,2011 . The

bankruptcy automatic stay in Aflatouni 's Chapter 13 case was in effect when the foreclosure sale

occurred.

City Bank sued Zive and another guarantor, Nasser Shafipour, on their guaranties of

Grapevine Diamond's indebtedness. Shafipour asserted third-party claims against Grapevine

Diamond and Aflatouni, who in turn asserted cross-claims against City Bank for wrongful

foreclosure , breach of contract, and several other causes of action regarding title to the property.'

All parties sought summary judgment on their affirmative claims and defenses. The trial court

denied appellants' motions and granted City Bank's. This appeal followed.

II. ANALYSIS

A. Standards of review.

We review a summary judgment de novo. Mid-Century Ins. Co. ofTexas v. Ademaj, 243

S.W.3d 618, 621 (Tex. 2003). When both parties move for summary judgment and the trial

court grants one motion and denies the other, we determine all questions presented and render

the judgment the trial court should have rendered. Id

We review a trial court's evidentiary rulings for abuse of discretion. Estate of Finney ,

424 S.W.3d 608,612 (Tex. Civ. App.-Dallas 2013, no pet.). We will not reverse a judgment on , - Shafipour was later dismissed from this suit and is not a party to this appea l.

Appendix to Appellant's Brief - Page 40 of 69 223 an evidentiary ruling unless the appellant establishes that (1) the trial court's ruling was in error

and (2) the error was reasonably calculated to cause and probably did cause the rendition of an

improper judgment. Id. (citing McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992)). When

reviewing whether evidence was properly admitted or excluded, we must review the entire

record. Id. (citing State v. Central Expressway Sign Assocs. , 302 S.W.3d 866, 870 (Tex. 2009)).

B. Was City Bank the payee on the notes and a party to the deeds of trust and guaranties?

Appellants contend that City Bank did not own or hold the promissory notes and is not a

party to the deeds of trust or the guaranties, and therefore was not authorized to foreclose on the

property or enforce the guaranties. They instead argue that the counter-party to those documents

is "City Bank, Texas," rather than "City Bank," the plaintiff and cross-defendant in this suit.

Appellants also contend that City Bank never filed documents with the Texas Secretary of State

to create an assumed name and may not now assert that it is the same entity as "City Bank,

Texas." See TEX. Bus. & COM. CODE ANN. § 71.101 (West 2015) (entity must file certificate ifit

regularly conducts business in Texas under an assumed name).

Failure to file an assumed name certificate concerns the plaintiffs capacity to sue. Sixth

RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 55-56 (Tex. 2003). As such, the defendant must

file a verified plea challenging the plaintiffs capacity. TEx. R. CIV. P. 93.1 (pleading that

plaintiff lacks legal capacity to sue must be verified). The plaintiff must then prove that it is

entitled to recover in the capacity in which it sued. JPMorgan Chase Bank, NA. v. Prof'l

Pharmacy II, No. 02-11-00373-CV, 2014 WL 7473779, at *6 (Tex. App.-Fort Worth Dec. 31,

2014, no pet.).' City Bank met this burden.

3 The appeal was later dismissed pursuant to settlement, but the court denied the motion to withdraw its opinion. JP Morgan Chase Bank. N.A. v. Prof"! Pharm acy II, No. 02-11-00373, 2015 WL 1119894, at·1 (Tex. App.-Fort Worth Mar. 12,2015, no pet.) (mem. op.).

-5- Appendix to Appellant's Brief - Page 41 of 69 224 Here, the record reflects that in 2009 appellants signed a loan modification agreement

affirming their obligations to "City Bank, a Texas banking association (Lender)" under the notes,

deeds of trust, and guaranties. This loan modification agreement identifies Grapevine Diamond

as "Borrower" and Zive as one of the "Guarantors." The loan modification agreement also

describes the promissory notes, deeds of trust, and guarant ies by date, amount, deed record

reference, and property description. Appellants likewise confirmed the outstanding note

balances . The agreement further provides, "Borrower and Guarantors hereby confirm and agree

such sums are due and owing to Lender without defense, counterclaim, or offset according to the

modified payment schedule, interest rate and other terms set forth herein." This loan

modification agreement was in City Bank's summary judgment evidence as Exhibit A-4 to the

Affidavit of Morris Wilcox.' Appellants did not contest this agreement, which recites that "City

Bank" is the lender and mortgagee.

In addition, the summary judgment evidence included the bankruptcy court's November

22, 2010 order granting the motion of "City Bank" to lift the automatic stay as to the collateral

under the notes and deed of trust, and authorizing "City Bank" to "exercise any and all remedies

afforded it pursuant to the terms of its loan documentation." And City Bank's summary

judgment filings also included affidavit testimony that City Bank was the owner and holder of

the notes and a party to the guaranties . The trial court could rely on all of this this evidence in

4 Relying on Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984), appellants challenge Wilcox's affidavit as hearsay and violating the best evidence rule. Their argument rests on the premise that the affida vit testimony (stating that "City Bank" is the lender) conflicts with the note itself (stating that "City Bank, Texas" is the lender). Unlike in Mercer , Wilcox's affidavit is not "limited to a legal conclusion .. . and an alleged copy of a note." [d. The court in Mercer distinguished cases where, as here, the sworn copies of the notes "were , indeed, copies of originals complete with signatures ." See id. Especially in light of the additional summary judgment evidence that appellants confirmed their indebtedness to "City Bank" in the loan modification documents, we reject appellants ' hearsay and best evidence arguments . Appellants also challenge Wilcox's testimony of the property's post-foreclosure sales price, again citing Mercer. Even if considering this testimony was error, it did not cause the rendition of an improper judgment because the post-foreclosure price of the property was not relevant to any issue presented in City Bank's summary j udgment motion. See TEX. R. ApP. P. 44.1(a) (no judgment may be reversed on appeal for error of law unless court of appeals concludes error probab ly caused rendition of improper judgment).

-6- Appendix to Appellant's Brief - Page 42 of 69 225 rejecting appellants' argument that City Bank was not the proper party to enforce appellants'

obligations under the loan documents.

Moreover, appellants provided no evidence raising a fact issue regarding whether City

Bank was doing business under an assumed name. See Sibley, III S.W.3d at 52 (whether

partnership did business under assumed name was fact question for trial court). The only support

appellants cite for their argument is that some of the operative documents in this case recite the

lender's name as "City Bank, Texas." There was, however, no evidence that City Bank

"regularly conducts business or renders professional services in this state under an assumed

name," and was therefore required to file an assumed name certificate. See TEX. Bus. & COM.

CODE ANN. § 71.101(1).

Further, Zive's own summary judgment response negates appellants' argument that City

Bank sued under an assumed name and was therefore required by business and commerce code

§ 71.101 to file an assumed name certificate. For example, Zive's response includes a request

for judicial notice of a reference from the Texas Secretary of State's website "showing that City

Bank, a Texas state bank, has not filed the documentation with the Texas Secretary of State's

office to create an assumed name." The record thus establishes that City Bank did not sue under

an assumed name.

For the above reasons, the summary judgment evidence conclusively established that City

Bank was entitled to enforce the notes and guaranties. We thus overrule Grapevine Diamond

and Aflatouni's first, eighth, eleventh, twelfth, and thirteenth issues, and Zive's second issue.

C. Was the Bank's no-evidence summary judgment motion sufficient to challenge appellants' trespass to try title, breach of contract, and suit to quiet title claims?

Appellants complain that City Bank's summary judgment motion was insufficient to

challenge their trespass to try title, breach of contract, and suit to quiet or remove cloud on title

-7- Appendix to Appellant's Brief - Page 43 of 69 226 claims because City Bank attacked only one element of these causes of action and not all of their

elements. We disagree.

City Bank was not required to allege that there was no evidence on every element of

appellants' causes of action to prevail on its no-evidence summary judgment motion. Defeating

one element of each claim suffices. Rule 166a(i) itself provides that a movant may seek

summary judgment "on the ground that there is no evidence of one or more essential elements of

a claim or defense on which an adverse party would have the burden of proof at trial." TEx. R. CIv. P. 166a(i) (emphasis added). "The motion must state the elements as to which there is no

evidence." Id.

And, as we explained in Nelson v. Regions Mortgage, Inc., the rule allows the movant to

identify "whatever elements he believes are unsupported by evidence; it imposes no restrictions

on the number of challenges that may be made." 170 S.W.3d 858, 861 (Tex. App.-Dallas

2005, no pet.); see also Timpte Indus. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009) (motion

specifying two elements of products liability claim was sufficient).

Here, City Bank's motion listed all of the elements for each cause of action , and then

identified one or more specific elements on which it argued that there was no evidence.

Specifically,

(1) for appellants' trespass to try title claim, City Bank challenged the element of

superior title from a common source, see Wilhoite v. Sims, 401 S.W.3d 752, 760

(Tex. App.-Dallas 2013 , no pet.) (listing "superior title out of a common source"

as one of four elements of trespass to try title claim);

(2) for appellants' breach of contract claim, City Bank challenged the elements of an

existing enforceable contract (as to Aflatouni) and breach (as to Grapevine

Diamond), see Petras v. Criswell, 248 S.W.3d 471, 477 (Tex . App.-Dallas 2008,

-8- Appendix to Appellant's Brief - Page 44 of 69 227 no pet.) (successful breach of contract claim requires proof of four elements

including valid contract and breach); and

(3) for appellants ' claim to quiet or remove cloud on title, City Bank challenged the

element that its claim on the property is invalid or unenforceable, see Montenegro

v. Ocwen Loan Servicing, LLC, 419 S.W.3d 561, 572 (Tex. App.-Amarillo

2013, pet. denied) (to state claim to quiet title, plaintiff must establish that

challenged claim to property is invalid or unenforceable).

City Bank 's summary judgment motion was thus sufficient to support the trial court's

judgment on appellants ' claims for trespass to try title, breach of contract, and to quiet or remove

a cloud on title. Accordingly, we overrule Grapevine Diamond and Aflatouni's ninth issue.

D. Did the trial court err by overruling appellants' objection to City Bank's pleadings because City Bank did not plead the affirmative defenses of proportionate responsibility, failure to mitigate, and offset?

Appellants contend that City Bank may not assert any new affirmative defenses "in the

event there is a remand." They argue that the trial court erroneously overruled their objections to

City Bank's failure to plead the proportionate responsibility, failure to mitigate, and offset

defenses. But City Bank did not seek summary judgment on these defenses; the trial court's

judgment does not include any ruling on them; and no remand is required. Appellants ' issue

does not present any error for our review. See TEX. R. ApP. P. 44.1(a) (for reversal on appeal,

court of appeals must conclude error probably caused rendition of improper judgment). We thus

overrule Grapevine Diamond and Aflatouni's tenth issue.

E. Did an alleged violation of the automatic stay in Aflatouni's bankruptcy case require a different result?

Aflatouni and Grapevine Diamond both urge that City Bank's foreclosure sale violated

the automatic stay in Aflatouni's Chapter 13 bankruptcy case. They rely on the settlement

statement executed by Grapevine Diamond reflecting the amount of $2,741,760.51 identified as

-9- Appendix to Appellant's Brief - Page 45 of 69 228 "Seller's Purchase into Grapevine Diamond" to support their argument that Aflatouni retained a

vendor 's lien when he sold the property to Grapevine Diamond. (Grapevine Diamond, however,

listed Aflatouni as only an unsecured creditor.) They also argue that City Bank does not dispute

that Aflatouni loaned $2.7 million to Grapevine Diamond when he sold the property in 2007.

But they admit that his vendor 's lien was subordinate to City Bank' s first lien.'

Grapevine Diamond further contends that it has standing to challenge City Bank's alleged

violation of the stay in Aflatouni's bankruptcy because it was an Aflatouni creditor based on

promises Aflatouni made in the 2009 loan modification.

Next, Aflatouni and Grapevine Diamond rely on In re Three Strokes Limited Partnership,

Debtor, 397 B.R. 804, 807 (Bankr. N.D. Tex. 2008) to support their automatic stay violation

argument. In that case, the court held that the debtor 's second lien interest in property was "a

property interest that triggers the protection of the automatic stay," even though the underlying

property was not property of the debtor 's estate, because foreclosure proceedings "could have the

effect of extinguishing the Debtor 's second lien interest." Id. The court thus concluded that,

based on the facts in that case, the debtor held "a cognizable property interest . . . that the

automatic stay protects ." Id. at 808. Based on this language from Three Strokes, Aflatouni and

Grape vine Diamond posit that Aflatouni 's alleged second lien was a property interest protected

by the automatic stay in his bankruptcy case.

The Three Strokes court, however, focused on a significant nuance in that fact pattern not

present here-whether an intercreditor subordination agreement created a waiver or

relinquishment of the debtor 's property rights such that the debtor had "no meaningful property

interests left." Id. at 808-809. The court further stated that:

S Grapevine Diamond contends that it has standing to challenge City Bank's alleged violation of the stay in Aflatouni's bankruptcy because it was an Aflatouni creditor based on promises Aflatouni made in the 2009 loan modification .

-1 0- Appendix to Appellant's Brief - Page 46 of 69 229 [T]his does not mean that the [d]ebtor has no property right here at all worthy of protection. The subordination agreement certainly dilutes or weakens the [d]ebtor's bundle of rights associated with the second lien. But it does not extinguish the property rights altogether.

Id. at 809. Thus, in Three Strokes, there was at least a possibility of value in the

The summary judgment record in the present case, however, establishes that there was no

such possibility here. That is so because it was judicially established in the bankruptcy court that

there was no equity in the property. Accordingly, there was nothing for Aflatouni's alleged lien

to attach to at the time of the sale. Or, in the words of Three Strokes, the record conclusively

establishes that there was "no meaningful property interest left" for Aflatouni, who thus had "no

property right here worthy of protection."

Specifically, when Aflatouni filed his December 6, 2010 Chapter 13 petition, the

bankruptcy court had already ruled, in Grapevine Diamond's bankruptcy proceeding, that there

was insufficient value in the collateral "to provide City Bank with adequate protection" on its

first lien. The bankruptcy court also found that Grapevine Diamond had no equity in the

collateral.

These findings were consistent with the amounts stated on Grapevine Diamond's own

bankruptcy schedules for the value of its interest in the property, the amount of City Bank's

secured claim, and Aflatouni's unsecured creditor listing. Furthermore, the bankruptcy court's

order specifically permitted City Bank to "exercise any and all remedies" permitted under its

loan documents, including foreclosure sale.

Notwithstanding the above, as a Grapevine Diamond creditor, Aflatouni could have

challenged both City Bank's motion to lift the stay and the bankruptcy court's order lifting the

stay. Grapevine Diamond itself could have appealed the order. See Mitchell v. Fort Davis State

Bank, 243 S.W.3d 117, 124 (Tex. App.-EI Paso 2007, no pet.) (bankruptcy court's order -11- Appendix to Appellant's Brief - Page 47 of 69 230 granting relief from automatic stay is final and appealable order) (citing In re Chunn, 106 F.3d

1239, 1242 (5th Cir. 1997)). Yet neither Aflatouni nor Grapevine Diamond took any such

actions.

Moreover, as discussed below, appellants still had no summary judgment evidence that

the property's value exceeded the amount stated on Grapevine Diamond's bankruptcy schedules ,

and the property was sold for less than the amount of City Bank's secured claim.

Accordingly, based on the specific facts before us, we overrule the portions of Grapevine

Diamond and Aflatouni 's second, fourth, fifth, and sixth issues alleging that summary judgment

for City Bank was improper because the foreclosure sale allegedly violated the stay in

Aflatouni 's bankruptcy.

F. Was the foreclosure sale invalid because of irregularities?

Appellants argue that there were two irregularities in the foreclosure sale itself that

injured them by reducing the price: (I) the bidding was interrupted three times when Jim

Goldston, who represented City Bank at the sale, received telephone calls, and (2) the sale was

not readvertised after Aflatoun i was unable to obtain cash for his winning bid and the sale was

resumed later that afternoon. We reject appellants' arguments because there is no evidence that

either alleged irregularity injured any appellant.

According to Goldston and Aflatouni, who both testified about the sale in their summary

judgment affidavits , Aflatouni was the apparent highest bidder for the property at $3,000,000 or

$3,001,000,6 and the substitute trustee accepted Aflatouni 's bid. The sale was then temporarily

suspended to allow Aflatouni to obtain cash or a cashier 's check in his bid amount, as the

foreclosure sale notice required.

6 Goldston testified the bid was $3,001,000; Aflatouni test ified it was $3,000,000.

-12- Appendix to Appellant's Brief - Page 48 of 69 231 Both witnesses also said there were other potential bidders at the sale that morning.

According to Goldston, however, no other potential bidders made an offer . Although Aflatouni

said that five or six people appeared to be "very interested in the sale," he did not say that any of

them made an offer.

Aflatouni further said that, because of the interruptions in the sale by Goldston's

telephone calls, "I felt the substitute trustee and Mr. Goldston were not trying to maximize the

sales price because the interruptions discouraged bidding." He further said that no other bidders

were present when the substitute trustee (consistent with the sale notice) told him that he must

pay by cashier's check by 2:00, and no other bidders were present at the reconvened sale. When

Aflatouni could not perform at the reconvened sale later that afternoon, City Bank credit-bid

$3,000,000 and purchased the property without readvertising the sale.

Appellants cite American Savings & Loan Ass 'n ofHouston v. Musick for the applicable

rule: "[t]here must be evidence of irregularity, though slight, which irregularity must have

caused or contributed to cause the property to be sold for a grossly inadequate price." 531

S.W.2d 581, 587 (Tex. 1975) (citing Sparkman v. McWhirter, 263 S.W.2d 832, 837 (Tex. Civ.

App.-Dallas 1953, writ refd)). "Mere inadequacy of consideration is not grounds for setting

aside a trustee 's sale if the sale was legally and fairly made." Id. And as we have explained,

"[e]vidence showing that a better price would have resulted if the sale was conducted in a

different manner is required." Hunt v. Jefferson Sav. & Loan Ass'n, 756 S.W.2d 762, 764 (Tex.

App.-Dallas 1988, writ denied).

We reject appellants ' arguments for several reasons:

One, as a matter of law Zive cannot prevail on a claim for wrongful foreclosure. As we

discuss below, Zive waived any right to offset in the agreements he signed guaranteeing the

indebtedness and may not recover damages even had he established irregularities in the sale. See

- 13- Appendix to Appellant's Brief - Page 49 of 69 232 Moayedi v. Interstate 35/Chisam Road, L.P., 438 S.W.3d 1, 8 (Tex. 2014) (right of offset is

defense that can be waived).

Two, Grapevine Diamond and Aflatouni cannot prove any damage caused by any

irregularities in the sale because there was no evidence that the sale's outcome would have been

different but for either type of alleged irregularity. Nor was there summary judgment evidence

establishing that the property's fair market value on the date of the foreclosure sale was higher

than City Bank's $3,000,000 bid. Although appellants cite to the appraisals City Bank accepted

at the time of the loan and modification and appraisals anticipating future development on the

property, there was no evidence that these appraisals reflected the fair market value on the

foreclosure sale date. And, as we discuss below, the trial court properly excluded appellants'

other proffered opinions on value. Nor was there evidence that any other person would have

paid any more for that property that day.

Three, we reject Grapevine Diamond's and Aflatouni's argument that, without any

evidence of an adverse effect on the sale's outcome, a sale is per se invalid if it is reconvened

later in the day without readvertising the sale or notifying the potential bidders who were present

earlier in the day. They rely on Mitchell v. Texas Commerce Bank-Irving, 680 S.W.2d 681, 683

(Tex. App.-Fort Worth 1984, writ ref'd n.r.e.), and Clearman v. Graham, 4 S.W.2d 581, 582-

83 (Tex. Civ. App.-Austin 1928, writ dism'd), to support this argument. To the extent either

case purports to hold that such conduct alone warrants invalidating the sale, that rule would be

inconsistent with supreme court precedents in Musick and Sparkman. See Musick, 531 S.W.2d at

587; Sparkman, 263 S.W.2d at 837 (both holding that irregularity must have caused or

contributed to cause property to be sold for grossly inadequate price). Moreover, the part of

Mitchell on which Grapevine Diamond and Aflatouni rely is dicta because the court had already

completely disposed of the case based on that bank's failure to give proper notice. See Mitchell,

-14-- Appendix to Appellant's Brief - Page 50 of 69 233 680 S.W.2d at 683. Similarly, Clearman was narrowly decided based on a jury finding that the

creditor engaged in fraudulent conduct that kept the debtor from personally attending the sale

with cash in hand, and evidence that the sale was reconvened without the presence of the person

who had been declared the successful bidder earlier in the day. See Clearman, 4 S.W.2d at 582.

Neither scenario exists here, and there is no evidence that the alleged irregularities "caused or

contributed to cause" a lower sales price, let alone a grossly inadequate one. See Musick, 531

S.W.2d at 587.

For the above reasons, we conclude that appellants did not offer summary judgment proof

that any irregularities in the foreclosure sale injured them. See Hunt, 756 S.W.2d at 764. We

thus overrule Grapevine Diamond and Aflatouni's third, fourth, fifth, and sixth issues and Zive's

issues l .d and 3.c.

G. Did the 2009 loan modification release Zive from his guaranty liability?

Zive argues that the 2009 loan modification agreement and a new guaranty he signed in

2009 7 release him from liability under his 2007 guaranty. We disagree because Zive (1) agreed

in 2007 to guarantee "all renewals and extensions" of the debt; (2) agreed to the loan

modification and ratified his guaranty obligations in 2009; and (3) failed to establish that his

2009 guaranty in any way altered his obligations under his 2007 guaranty or the 2009 loan

modification agreement.

Zive's 2007 guaranty specifically included "all obligations, indebtedness and liabilities of

Borrower owed to Lender, now existing or hereafter created . . . together with any and all

renewals and extensions of such indebtedness ...." And in the 2009 loan modification

agreement, Zive "join[ed] in the execution of the foregoing Loan Modification Agreement to

7 In his own summary judgment motion and in his response to City Bank's motion, Zive relies on a guaranty agreement dated March [0, 2009, that was not included in City Bank' s summary judgment evidence. In his summary judg ment response, Zive contended the 2009 guaranty replaced the 2007 guaranty, rendering the 2007 guaranty "ineffective."

-15- Appendix to Appellant's Brief - Page 51 of 69 234 ratify and reaffirm [his] obligations under the Guaranty Agreement[] previously executed by

Guarantor[] in favor of Lender, and to ratify and reaffirm the liens of the Deed of Trust and

other Loan Documents to secure the Notes as modified hereby."

Zive contends that "the 2007 documents no longer support any claims of the Bank"

because "there were material changes to the overall lending arrangement" under the 2009 loan

modification. He cites Futerfas Family Partners v. Griffin for the premise that a guarantor is

discharged by a material alteration of the underlying contract that lacks the guarantor's consent

and harms the guarantor. 374 S.W.3d 473, 478 (Tex. App.-Dallas 2012, no pet.). As we

explained in Futerfas, however, to receive a discharge, the guarantor must prove, among other

elements, that a material alteration to the underlying contract was made without his consent. Id.

The summary judgment evidence here, however, established that Zive fully consented to the

2009 modification .

Specifically, the 2009 loan modification agreement Zive signed contains his consent to

the 2009 loan modification agreement:

Notwithstanding anything else herein or elsewhere, the Guaranty Agreement[] of Youval Zive ... [is] hereby ratified and confirmed by Youval Zive and such Guaranty Agreement[] continue[s] in full force and effect. .

JOINDER OF GUARANTORS The Guarantors join in the execution of the foregoing Loan Modification Agreement to ratify and reaffirm their obligations under the Guaranty Agreements previously executed by Guarantors in favor of Lender, and to ratify and reaffirm the liens of the Deed of Trust and other Loan Documents to secure the Notes as modified hereby. Guarantors each hereby affirm, confirm, ratify, renew and extend the debts, duties, obligations, liabilities, rights, titles, security interests, liens, powers and privileges created or arising by virtue of each of their respective Guaranty Agreements, until all of the indebtedness has been paid and performed in full.

Guarantor hereby covenants with Bank as follows:

(a) The Loan Documents, including but not limited to those certain Guaranty Agreements dated as of September 10, 2007 and September 10, -16- Appendix to Appellant's Brief - Page 52 of 69 235 2008, as modified hereby, are in full force and effect and there are no defenses, counterclaims, or offsets to the payment and performance of an[y] of its/their obligations in regard to the Loan, or any of the Loan Documents, as modified hereby . . . .

Additionally, the terms of Zive's guaranties control his obligations. See Chambers v.

NCNB Tex. Nat'l Bank, 841 S.W.2d 132, 134 (Tex. App.-Houston [14th Dist.] 1992, no writ).

Zive expressly ratified and reaffirmed his obligations as guarantor by joining in the loan

modification agreement, agreeing that his guaranty was in full force and effect without defenses,

counterclaims, or offsets, and confirming and renewing his guaranty until the debt was paid in

full. We thus conclude that Zive did not present any summary judgment evidence that raised a

fact issue regarding whether any material alteration was made in his guaranty obligation without

his consent. See Futerfas, 374 S.W.3d at 478; see also Chambers, 841 S.W.2d at 134 (where

guaranty applied to all renewals and extensions of initial loan, and expressly provided that

change in debtor's status did not alter guarantor's liability, guarantor remained liable on renewal

note made after debtor, originally a partnership, was incorporated).

Furthermore, even the 2009 guaranty on which Zive relies bears the same effective date

as the loan modification agreement and references the same promissory note and deed of trust.

Instruments concerning the same transaction may be read together even if they are executed at

different times and do not reference each other. In re Laibe Corp., 307 S.W.3d 314, 317 (Tex.

2010) (mandamus granted). Accordingly, under the express terms of his guaranties and the loan

modification agreement, Zive remained liable for Grapevine Diamond's debts to City Bank.

In addition to his general argument that his obligations were discharged by the 2009 loan

modification, Zive also contends that he has not waived the right of offset under § 51.003 of the

Texas Property Code, see TEX. PROP. CODE ANN. § 51.003(c) (West 2014) , despite the express

waiver of this right in his 2007 guaranty agreement:

-17- Appendix to Appellant's Brief - Page 53 of 69 236 Furthermore, in the event any property securing the Guaranteed Indebtedness is foreclosed upon in any manner, and a deficiency is created as a result of the purchase price at such foreclosure sale, Guarantor does hereby irrevocably waive all rights to claim any offset against the deficiency as provided in Section 51.003, 51.004 and 51.005 of the Texas Property Code, as amended.

The 2009 loan modification agreement live signed did not expressly reference § 51.003,

but it did contain the above-quoted joinder provisions in which he agreed that "there are no

defenses, counterclaims, or offsets to the payment and performance of an[y] of its/their

obligations in regard to the Loan, or any of the Loan Documents, as modified hereby .. .."

These provisions were sufficient to waive live's right of offset under § 51.003 as well as any

other defenses to his liability on the guaranty. See Moayedi, 438 S.W.3d at 6.

Specifically, in Moayedi the supreme court held that the § 51.003 right of offset is a

defense that can be waived. ld. at 8; see also Holmes v. Graham Mortg. Corp., 449 S.W.3d 257,

265 (Tex. App.-Dallas 2014, pet. denied) (discussing Moayedi). The Moayedi court concluded

that a "general waiver of defenses ," including words such as "any, " "each," and "every," was

sufficient to waive "all possible defenses." Moayedi , 438 S.W.3d at 8; Holmes , 449 S.W.3d at

265. Here, live agreed to "continue in full force and effect" his express waiver in the 2007

guaranty, and also agreed that "there are no defenses , counterclaims, or offsets to the payment

and performance" of his obligations under his guaranty.

For the above reasons, we conclude that live did not establish that he was entitled to

discharge of his obligations under his guaranty and that summary judgment for City Bank was

proper. We thus overrule live's issues 3.a and 3.b.

H. Did the trial court abuse its discretion by excluding appellants' property value evidence?

1. Blaine and Jordan

-18- Appendix to Appellant's Brief - Page 54 of 69 237 Through their own affidavits and the appraisals of two experts, appellants sought to offer

summary judgment evidence that the property's value exceeded $8,000,000. Specifically, they

designated Robert Blaine and George Jordan as expert witnesses on May 10, 2013, the deadline

for doing so given in the trial court's scheduling order. Each witness was designated to "provide

expert opinions regarding the appraised values of the real property at issue in this case." Blaine

was designated to opine on the property's value "at the time of the foreclosure sale and also as a

completed project for each of the development phases." Jordan was designated to opine on the

property's value "prior to the time of the foreclosure sale." The designation states that a resume

and licensing information is attached for each witness. The actual substance of Blaine 's and

Jordan's opinions, however, was not provided. Appellants argue that because the scheduling

order did not require anything other than "a designation" of their experts, their designation

exceeded the scheduling order's requirements.

But the record also reflects that appellants did not disclose Blaine and Jordan in response

to two prior requests for disclosure made long before the scheduling order deadline. On

September 22, 2011, City Bank requested disclosures from Aflatouni "of the information or

material described in" Texas Rule of Civil Procedure 194.2(a)-(l). City Bank made the same

request of Aflatouni and Grapevine Diamond on September 13, 2012. Aflatouni and Grapevine

Diamond were thus required to disclose "the general substance of the expert's mental

impressions and opinions and a brief summary of the basis for them" within thirty days after

service of the request. TEX. R. ClV. P. 194.2(f)(3); 194.3. They were also required to

supplement an incomplete response "reasonably promptly." TEx. R. CIV. P. 193.5; 195.6;

VingCard A.S. v. Merrimac Hasp. Sys. , Inc., 59 S.W.3d 847, 856 (Tex. App.-Fort Worth 2001,

pet. denied) (rules place affirmative obligation on responding party to disclose expert 's mental

-19- Appendix to Appellant's Brief - Page 55 of 69 238 impressions and opinions and provide brief summary of basis). Appellants responded to City

Bank's requests for disclosure on October 15,2012, but did not disclose either Blaine or Jordan.

After appellants' May 2013 disclosure, City Bank again requested the information

specified in rule 194 by letter on May 31, 2013. Blaine's mental impressions and opinions were

finally supplied in an affidavit dated July 18, 2013 . City Bank, however, had already prepared

and filed its summary judgment motion two weeks earlier.

Because appellants did not timely disclose their experts in response to the disclosure

requests, the trial court was required to exclude the evidence unless appellants established good

cause for the failure to respond or the lack of unfair surprise or unfair prejudice to City Bank.

TEX. R. CIV. P. 193.6; VingCard, 59 S.W.3d at 856. Appellants do not point to any showing of

good cause or lack of unfair prejudice made in response to City Bank's motion to exclude

Blaine's testimony for failure to timely disclose his mental impressions and opinions, or in

response to City Bank's objections to Blaine's and Jordan 's appraisals. Therefore, we conclude

that the trial court did not abuse its discretion by excluding their opinions. TEx. R. CIV. P. 193.6.

Because we conclude that the trial court did not abuse its discretion by excluding Blaine 's

and Jordan's opinions for the above reasons, we need not and do not reach City Bank's argument

that the trial court also properly excluded their opinions because neither witness opined

regarding the property's value on the foreclosure sale date. See generally TEX. PROP. CODE ANN.

§ 51.003; Plains Capital Bank v. Martin, 459 S.W.3d 550, 555-58 (Tex. 20 15) (discussing

determination of fair market value for purposes of statutory provision on deficiency judgments).

2. Aflatouni and Zive as potential experts

Although Blaine and Jordan were not designated until May 2013, Aflatouni and Zive

were designated as experts in October, 2012. Zive was designated to testify "as to the activities

of a real estate developer and the land development process." Similarly, Aflatouni was

-20- Appendix to Appellant's Brief - Page 56 of 69 239 designated to testify "as to the activities of a real estate developer, the activities of a real estate

broker, the land development process and the importance and reasonableness of the subordinated

lien held by Aflatouni on this project." Neither, however, was designated to testify regarding the

property's value on the foreclosure date. Absent disclosure or timely supplementation of

Aflatouni's and Zive's mental impressions and opinions, the trial court did not err by excluding

their "expert" opinions regarding the property's value. TEX. R. Cry. P. 195.6 (amendment and

supplementation of discovery regarding experts); TEX. R. Civ. P. 193.5 (duty to amend or

supplement); TEX. R. Cry. P. 193.6 (exclusion of evidence not timely disclosed in response to

discovery request) .

3. Aflatouni and Zive as lay witnesses

Aflatouni and Zive also argue that as owners of the property they were qualified as lay

witnesses to testify to the property's value. Citing Dallas County v. Crestview Corners Car

Wash, 370 S.W.3d 25, 41 (Tex. App.-Dallas 2012, pet. denied), Zive also asserts that as

president of Grapevine Diamond's general partner, he is presumed to have knowledge of the

property's fair market value.

When a business entity owns property, a natural person may testify as to the property's

value under the property owner rule only if the person is an officer in a management position

with duties in part relating to the property or an employee in a substantially equivalent position.

Reid Road Mun. Uti!. Dist. No.2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 849 (Tex.

2011). Reid Road, however, further instructs that we should look at the substance of the

witness 's duties rather than his title or status. Id. at 849.

Moreover, while the "Property Owner Rule establishes that an owner is qualified to

testify to property value," that testimony must meet the "same requirements as any other opinion

evidence." Nat. Gas Pipeline Co. ofAm. v. Justiss, 397 S.W.3d ISO, 156 (Tex. 2012) (quoting

- 2 1- Appendix to Appellant's Brief - Page 57 of 69 240 Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984» (emphasis original). The Justiss court

continued,

Because property owner testimony is the functional equivalent of expert testimony, it must be judged by the same standards. Thus, as with expert testimony, property valuations may not be based solely on a property owner's ipse dixit. An owner may not simply echo the phrase "market value" and state a number to substantiate his diminished value claim; he must provide the factual basis on which his opinion rests. This burden is not onerous, particularly in light of the resources available today. Evidence of price paid, nearby sales, tax valuations, appraisals, online resources, and any other relevant factors may be offered to support the claim. But the valuation must be substantiated; a naked assertion of "market value" is not enough.

Id. at 159. Thus, being qualified to testify about value does not equate to providing competent

evidence of value.

As discussed below, assuming Zive and Aflatouni were qualified based on their status to

testify about the property's value on the foreclosure date, their affidavit testimony on that issue

was still legally insufficient evidence of the property's value on the foreclosure date.

Turning first to Zive, he argues that he was qualified to opine about the property's value

because he was the president of Grapevine Diamond's general partner and that he had worked on

the project. Assuming without deciding that he was qualified to testify on that issue, his

testimony was not admissible evidence of fair market value. Specifically, Zive testified that

(l) Grapevine Diamond purchased the property in 2007 for approximately $6.5 million; (2) he

reviewed Jordan's 2009 appraisal report; (3) in his opinion, the fair market value of the property

"would have increased in the time-period from the date of purchase to the date of the foreclosure

sale"; and (4) his "conservative estimate " is that at the time ofthe foreclosure sale the fair market

value of the property was $8,300,000.

Zive's opinion, however, was not supported with an underlying basis. Although he relied

on Jordan's 2009 appraisal report, Zive provided no substantiation for his opinion that the fair

-22- Appendix to Appellant's Brief - Page 58 of 69 241 market value of the property would have increased by approximately $2 million by the 2011

foreclosure sale date. Instead, his "conservative estimate" simply offers a conclusion that is

unsupported by any specific, underlying data.

Likewise, even if Aflatouni, as a Grapevine Diamond limited partner, was qualified to

testify as an owner of the property (an issue we do not decide), he offered only unsupported

conclusions of fair market value. His summary judgment affidavit states that he became a

Grapevine Diamond limited partner on August 4, 2009. He further said that as a limited partner

and as the seller of the property to Grapevine Diamond, he is familiar with the property and its

value.

Although Aflatouni said that he has managerial responsibilities related to the property

that include development and marketing, he does not explain what the marketing and

development duties might be. He also does not state that he ever performed these functions

regarding the property, particularly in connection with forming his opinion concerning the fair

market value ofthe property.

With regard to fair market value, Aflatouni states only that he reviewed appraisal reports

for 2007 and 2009 to form his opinion about the fair market value of the property in 2011. There

is, however, no data or other information to connect the early values to the 2011 value. He does

not explain how or why the alleged value remained constant from 2007 through 2011, or what

calculations, if any, he performed to reach his conclusion concerning the 2011 value. In short,

his opinion concerning the 2011 fair market value of the property is nothing more than a bare

conclusion.

After reviewing the entire record, we conclude that the trial court did not abuse its

discretion by excluding the testimony of Blaine, Jordan, Aflatouni, and Zive as to the property's

fair market value on the foreclosure sale date. See Estate ofFinney, 424 S.W.3d at 612. We thus

-2 3- Appendix to Appellant's Brief - Page 59 of 69 242 overrule Grapevine Diamond and Aflatouni's fourteenth, fifteenth , sixteenth, and seventeenth

issues, and Zive's issues 1.a, 1.b., and 1.c.

I. May Grapevine Diamond or Aflatouni recover damages or attorney's fees?

Because summary judgment was proper dismissing all of Grapevine Diamond and

Aflatouni's claims against City Bank, they may not recover damages, punitive damages, or

attorney's fees. See, e.g., Univ. Sav. Ass'n v. Springwoods Shopping Ctr., 644 S.W.2d 705, 706

(Tex. 1982) (to recover damages for wrongful foreclosure, alleged irregularities in sale must be

cause of injury to mortgagor). We thus overrule Grapevine Diamond and Aflatouni's seventh,

eighteenth, and nineteenth issues.

ill. CONCLUSION

Having overruled appellants' issues, we affirm the trial court's judgment.

/Bill Whitehill/ 140260F.POS BILL WHITEHILL JUSTICE

-24- Appendix to Appellant's Brief - Page 60 of 69 243

GRAPEVINE DIAMOND, L.P. , On Appeal from the 429th Judicial District JONATHAN AFLATOUNI, and YOUVAL Court, Collin County, Texas ZIVE, Appellants Trial Court Cause No. 429-01876-2010. Opinion delivered by Justice Whitehill; No.05-14-00260-CV V. Justices Bridges and Myers participating.

CITY BANK, Appellee

In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee City Bank recover its costs of this appeal from appellants Grapevine Diamond, L.P., Jonathan Aflatouni, and Youval Zive.

Judgment entered December 7,2015.

- 25- Appendix to Appellant's Brief - Page 61 of 69 244 .. . , j CAUSE NO. 342-280952-15

GRAPEVINE DIAMOND, L.P. and § IN THE DISTRICT COURT OF AMIR FOAD JOHN AFLATOUNI, § aka JONATHAN AFLATOUNI, § Plaintiffs, § v. § TARRANT COUNTY, TExAs § ENCLAVE AT GRAPEVINE, L.P., § A TEXAS LIMITED PARTNERSmp, § Defendant. § 342ND JUDICIAL DISTRICT

ORDER GRANTING DEFENDANT ENCLAVE'S AMENDED AND RESTATED TRADITIONAL MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFFS ·

After considering Defendant Enclave at Grapevine, L.P.'s ("Enclave") Amended and I I Restated Motion to Dismiss or, Alternatively, Traditional Motion for Summary Judgment.

Plaintiff Jonathan Aflatouni's ("Aflatouni") Motion for Summary Judgment, and Enclave's

Objections to and Motion to Strike Aflatouni's Summary Judgment Evidence. the responses filed I by Enclave and Aflatouni, timely filed summary judgment evidence, and arguments of counsel at

the May 4, 2017 hearing, the Court finds that Enclave's Traditional Motion for Summary I Judgment should be GRANTED.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Enclave's I Traditional Motion for Summary Judgment is GRANTED in its entirety against Plaintiffs I Aflatouni and Grapevine Diamond, L.P., and Plaintiffs' causes of action for trespass to try title, I ! slander of title, action to quiet and remove cloud on title, and the request for the filing ~f a I corrective document in public real property records in Plaintiffs' above-referenced suit.

The Court DENIES Aflatouni's Motion for Summary Judgment and DENIES Enclave's

Objections to and Motion to Strike Aflatouni's Summary Judgment Evidence. I . The Court DENIES Enclave's request for attorneys' fees. . a'-' )

Oi'J ~ •ALL SERVED VIA: MAILED 'if' I - HANDAELtv..ERY ~ r.to\lL ~bJ4.-t ltJd..U- .::~ E~. L.:::J 11 ~ Illl I ~ _F/IX .~ 0 Appendix to Appellant's Brief - Page 62 of 69 ~~==::-= WrlO IS TO I SERVE COPlES ONALLOTP.ERS • .. .4"

It is further ORDERED that this is an interlocutory order that does not resolve all claims

between the parties, as summary judgment is not being granted regarding Aflatouni's claim

basedupon physical damageto Aflatouni's neighboring property.

SO ORDERED.

Signed on: --~f---"-----' 2017.

~- JUDGE J. WADE BIRDWELL

I j Appendix to Appellant's Brief - Page 63 of 69 916 342-280952-15

CAUSE NO. 342-280952-15

GRAPEVINE DIAMOND, L.P. and § IN THE DISTRICT COURT OF AMIR FOAD JOHN AFLATOUNI, § aka JONATHAN AFLATOUNI, § Plaintiffs, § v. § TARRANT COUNTY, TEXAS § ENCLAVE AT GRAPEVINE, LoP., § A TEXAS LIMITED PARTNERSHIP, § Defendant. § 342ND JUDICIAL DISTRICT

FINAL JUDGMENT

After considering Plaintiff Amir Foad John Atlatouni aka Jonathan Aflatouni

("Aflatouni") and Defendant Enclave at Grapevine, L.P.'s ("Enclave") Joint Motion for Entry of

Final Judgment, and the Court's May 26, 2017 Order Granting Defendant Enclave's Amended

and Restated Motion for Summary Judgment Against Plaintiffs (the "Summary Judgment

Order"), the Court finds that the Joint Motion for Entry of Final Judgment should be

GRANTED.

The Court finds that its May 26, 2017 interlocutory Summary Judgment Order fully

. addressed and was dispositive regarding Plaintiffs Grapevine Diamond, L.P. and Aflatouni's

causes of action for trespass to try title, slander of title, action to quiet and remove cloud on title,

and the request for the filing of a corrective document in public real property records in

Plaintiffs' above-referenced suit (collectively, the "Title Claims").

The Court finds that the Title Claims were the only claims brought by Grapevine

Diamond, L.P., and that the Summary Judgment Order fully disposed of all claims relating to

Grapevine Diamond, L.P.

The Court further finds that Aflatouni's claim for trespass based upon physical damage to

Aflatouni's fence (the "Fence Claim"), and any claims for attorneys' fees and reasonable

C1H£ ._~ E.MAILED~ .. \ " n8 janl1~)~ Appendix to Appellant's Brief - Page 64 of 69 921 expenses and costs associated with the Fence Claim, have been nonsuited and thus are dismissed

with prejudice to re-filing the same.

The Court further finds that Enclave's claim for attorneys' fees and its reasonable

expenses and costs incurred in the defense of this matter pursuant to the Fence Claim, as outlined

in its prayer for relief, has been nonsuited and thus is dismissed with prejudice to re-filing the

same.

The Court further finds that, based on the foregoing, all claims and issues have been

finally resolved as to all parties in this case.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Summary

Judgment Order that Aflatouni and Grapevine Diamond take nothing by the Title Claims is

incorporated into this Final Judgment and that this Final Judgment be entered by the Clerk of this

Court. This Final Judgment disposes of all issues and parties and is intended to be final and

appealable.

It is further ORDERED this Final Judgment will result in the Summary Judgment Order

regarding the Title Claims becoming a final judgment; that Aflatouni retains all of his existing

rights to litigate and appeal the Title Claims as pled in the Litigation on which the Court

previously granted summary judgment in favor of Enclave; that Enclave retains all defenses and

rights associated with the Title Claims and any potential appeals of the Title Claims; that this

Final Judgment does not affect or prejudice the rights of Aflatouni to litigate and appeal the Title

Claims and of Enclave to respond to such litigation or appeals, or the right of either party to

litigate the Title Claims upon any remand from any such appeals.

It is further ORDERED that each party shall bear its own costs.

Appendix to Appellant's Brief - Page 65 of 69 922 Signed on: ~k 2-'1 ,2017.

~ JUDGE J. WADE BIRDWELL

APPROVED AS TO FORM:

lsi Jeffrey R. Sandberg Jeffrey R. Sandberg Palmer & Manuel, LLP 8350 North Central Expressway, Suite 1111 Dallas, Texas 75206 Telephone: (214)242-6454 Facsimile: (214) 265·1950 Email: jsandberg@pamlaw.com

ATTORNEY FOR PLAINTIFF AMIR FOAD JOHN AFLATOUNI aka JONATHAN AFLATOUNI

lsi Margaret "Peg" Donahue Hall Margaret "Peg" Donahue Hall Texas BarNo. 05968450 peg.hall@dentons.com Leanna M. Anderson Texas Bar No. 24085833 leanna.anderson@dentons.com Spencer D. Hamilton Texas Bar No. 24087656 spencer.hamilton@dentons.com DENTONS US LLP 2000McKinney Avenue, Suite 1900 Dallas, Texas 7520I Telephone: (214)259-0900 Facsimile: (214) 259·0910

ATTORNEYS FOR DEFENDANT ENCLAVE AT GRAPEVINE, L.P.

Appendix to Appellant's Brief - Page 66 of 69 923 5/3/2017 Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499

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Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499

Copy Citation

Supreme Court of Texas

June 1, 1988, Decided

No. C­7383

Reporter 751 S.W.2d 499 * | 1988 Tex. LEXIS 65 ** | 31 Tex. Sup. J. 499

Continental Casing Corporation, Petitioner, v. Samedan Oil Corporation, Respondent

Prior History: [**1] FROM GAINES COUNTY, EIGHTH DISTRICT.

Core Terms

summary judgment, notice, mail, pipe, days

Case Summary

Procedural Posture Petitioner subcontractor challenged a decision from the Court of Appeals of Texas, Eighth District, Gaines County, which reversed the trial court's grant of summary judgment in favor of petitioner and rendered judgment for respondent in a case involving the claim of a lien against mineral property.

Overview Petitioner subcontractor brought an action to foreclose on its lien and moved for summary judgment against respondent buyer. Respondent answered and filed its own motion for summary judgment. The trial court granted petitioner's motion for summary judgment and denied respondent's motion. The court of appeals reversed the trial court's judgment and rendered judgment for respondent. The court of appeals erred in holding that a setoff in violation of the bankruptcy automatic stay was voidable. An action taken in violation of the automatic stay was void, not merely voidable. After careful review of the record, however, the court concluded that ambiguities and deficiencies in the summary judgment record precluded rendition for either party in a summary judgment proceeding. And as the nonmovant was entitled to have all reasonable inferences made and all doubts resolved in its favor, the court of appeals erred in granting summary judgment in respondent's favor. The court declined to address the substantial compliance doctrine. Thus, the court granted petitioner's application and reversed the court of appeal's judgment and remanded the case to the trial court for further proceedings.

Outcome The court granted petitioner's application for review and reversed the court of appeals' judgment and remanded the cause to the trial court for further proceedings as the granting of summary judgment to either party was contrary to the court's holding that in a summary judgment proceeding, the nonmovant was entitled to have all reasonable inferences made and all doubts resolved in its favor.

LexisNexis® Headnotes

Bankruptcy Law > Administrative Powers > Automatic Stay > General Overview Bankruptcy Law > ... > Administrative Powers > Automatic Stay > Judicial Review Bankruptcy Law > ... > Automatic Stay > Violations of Stay > Void & Voidable Actions Bankruptcy Law > ... > Bankruptcy > Claims > Setoffs

HN1 An action taken in violation of the bankruptcy automatic stay is void, not merely voidable. More like this Headnote

Shepardize ­ Narrow by this Headnote (57)

 Civil Procedure > Judgments > Summary Judgment > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > General Overview Civil Procedure > ... > Summary Judgment > Supporting Materials > General Overview

Appendix to Appellant's Brief - Page 67 of 69

https://advance.lexis.com/search/?pdmfid=1000516&crid=f5544e89­882a­4676­a3e5­a5b4930f5219&pdsearchterms=751+S.W.2d+499&pdstartin=hlct%3A1%3… 1/3 5/3/2017 Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499 HN2 In a summary judgment proceeding, the nonmovant is entitled to have all reasonable inferences made and all doubts resolved in its favor. More like this Document: Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499 Actions Headnote

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Counsel: Mr. Joe K. McGill , Seminole, Texas, Mr. Dan Patchin, Calvin, Dylewski, Gibbs, Maddox, Houston, Texas, Mr. Daniel J. Kasprzak , Calvin, Dylewski, Gibbs, Maddox, Houston, Texas, for Petitioner.

Ms. Elizabeth M. Marsh , Lynch, Chappell, Allday & Alsup , Midland, Texas, for Respondent.

Opinion by: PER CURIAM

Opinion

[*500] This is a summary judgment case involving the claim of a lien against mineral property under Texas Property Code sections 56.001 et seq. Samedan Oil Corporation ("Samedan") placed an order with Misco Supply Company ("Misco") for Misco to supply casing to one of its wells. Misco in turn subcontracted the job, placing an order with Continental Casing Corporation ("Continental") for it to deliver the pipe to the well. Continental delivered the pipe promptly and billed Misco.

Due to credits for returns, Misco owed Samedan thousands of dollars, which Misco had arranged for Samedan to take in "merchandise credit" against future invoices. Misco was in financial trouble and filed for Chapter 7 Bankruptcy the day before it sent the invoice for the pipe delivery to Samedan. Continental sent Samedan two letters demanding that [**2] Samedan pay for the pipe. The first letter was sent by first class mail on January 9, 1984, less than two months after delivery of the pipe. This first letter did state that if payment was not received Continental would "file necessary liens on your well," but did not expressly state that Continental claimed a lien on Samedan's mineral property. The second letter was mailed by certified mail only eleven days before Continental filed its lien affidavit on what would appear to have been the last day of the six month period for timely filing under Texas Property Code section 56.021(a). Samedan received and signed for this certified letter six days before the filing date. The second letter did expressly state that a lien was claimed "pursuant to Tex. Prop. Code § 56.021(b)." Under section 56.021(b), the mineral subcontractor must "serve on the property owner written notice that the lien is claimed" not later than ten days before the subcontractor files the lien affidavit.

Continental sued to foreclose its lien and moved for summary judgment. Samedan responded and filed its own motion for summary judgment. Samedan claimed the lien was invalid because it had offset the pipe invoice [**3] against what Misco owed it and thus owed no debt, or alternatively because "serve" in section 56.021(b) meant actually receiving the notice was required. [*501] Continental replied that the automatic stay of the bankruptcy made the alleged offset void, and that certified mailing was "service" by incorporation of the mechanics' and materialmen's lien statutes.

The trial court granted Continental's motion for summary judgment and denied Samedan's. The court of appeals in an unpublished opinion reversed the trial court judgment and rendered judgment for Samedan. The court of appeals wrote that "only the bankruptcy trustee had standing to challenge the post­petition transfer," and further sustained Samedan's claim that ten days' notice had not been given.

The court of appeals erred in holding that a setoff in violation of the bankruptcy automatic stay was voidable. HN1 An action taken in violation of the automatic stay is void, not merely voidable. Kalb v. Feuerstein, 308 U.S. 433, 84 L. Ed. 370, 60 S. Ct. 343 (1940); In re Albany Partners, Ltd., 749 F.2d 670, 675 (11th Cir. 1984); 4 Collier on Bankruptcy para. 553.05[2] at 553­59 (15th ed. 1987). This was error. Eichelberger [**4] v. Eichelberger, 582 S.W.2d 395 (Tex. 1979). After careful review of the record, however, we have concluded this cause presents error precluding rendition for either party in a summary judgment proceeding. The affidavit of Samedan's landman in support of its motion for summary judgment (and in opposition to Continental's) is conclusory and does not expressly state when the alleged offset was taken ­­ before or after the filing of the bankruptcy petition. If it were validly taken before the bankruptcy petition was filed, it would be a preference that could only be declared invalid in the bankruptcy court. Federal Deposit Insurance Corp. v. Davis, 733 F.2d 1083 (4th Cir. 1984). Also, Samedan's affidavit is vague on the issue of notice. It recites that notice expressly claiming a lien was not received sooner than ten days before the filing date for the lien affidavit, but it does not deny Samedan's having received the January 9, 1984 letter. Continental's affidavit in support of its motion for summary judgment alleged the original January 9, 1984 letter is in Samedan's possession, but does not allege any date by which Samedan received it. HN2 In a summary judgment proceeding, the [**5] nonmovant is entitled to have all reasonable inferences made and all doubts resolved in its favor. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex. 1979). There are other ambiguities and deficiencies in the summary judgment record we need not expressly address. The granting of summary judgment to either party was contrary to our Clear Creek opinion.

As far as the sufficiency of the first notice letter and whether notice was effectively "served" when the second letter was mailed by certified mail, we note without approval or disapproval that several Texas intermediate appellate court decisions have applied the substantial compliance doctrines of the mechanics' and materialmen's lien laws to the mineral property lien statutes now codified in Texas Property Code sections 56.001 et seq. See, e.g., Energy Fund of America, Inc. v. G.E.T. Service Co., 610 S.W.2d 833, 836­38 (Tex. Civ. App. ­­ Eastland 1980), modified sub nom. Ayco Development Corp. v. G.E.T. Service Co., 616 S.W.2d 184 (Tex. 1981) (expressly noting the substantial compliance holding was not presented to the court); Marathon Metallic Building Co. v. Texas National Bank of Waco [**6] , 534 S.W.2d 743, 747 (Tex. Civ. App. ­­ Waco 1976, no writ); Texcalco, Inc. v. McMillan, 524 S.W.2d 405, 407 (Tex. Civ. App. ­­ Eastland 1975, no writ). The facts are not sufficiently developed in this summary judgment record to determine whether such a doctrine could or should apply. We decline to address the substantial compliance doctrine in the present case, since ruling on the issue would not necessarily be dispositive of this case, given the ambiguous state of the record.

Because the court of appeals' decision conflicts with Clear Creek, we grant Continental's application, and without hearing oral argument, a majority of the court reverses the court of appeals' judgment and remands the cause to the trial court for further proceedings. Tex. R. App. P. 133(b).

OPINION DELIVERED: June 1, 1988.



Appendix to Appellant's Brief - Page 68 of 69

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