Ben Melton v. CU Members Mortgage, a Division of Colonial Savings, F.A. And First Western Title Co.

Opinion

ACCEPTED

03-15-00339-CV

13859970

THIRD COURT OF APPEALS

AUSTIN, TEXAS

11/17/2016 4:12:21 PM

JEFFREY D. KYLE

CLERK

NO. 03-15-00339-CV

FILED IN

IN THE COURT OF APPEALS 3rd COURT OF APPEALS THIRD JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS 11/17/2016 4:12:21 PM

AUSTIN, TEXAS

JEFFREY D. KYLE

Clerk

BEN MELTON,

APPELLANT,

v.

CU MEMEBERS MORTGAGE, A DIVISION OF COLONIAL SAVINGS, F.A., FIRST WESTERN TITLE CO., AND BOB MIMS,

APPELLEES.

Appeal from the 340th Judicial District Court Tom Green County, Texas Trial Court Case No. C130102 Hon. Jay Weatherby, presiding

APPELLEES’ MOTION TO REMAND

TO THE HONORABLE COURT OF APPEALS:

COME NOW Appellees CU Members Mortgage, a division of Colonial

Savings, F.A. (“Colonial”) and First Western Title Co. (“First Western”) or

collectively (“Appellees”), and file this Motion to Remand and shows:

Appellant Ben Melton asserted in the trial court several claims that the

subject home equity loan was invalid due to alleged violations of the Texas

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constitution in the origination of the subject home equity loan. CR 219-20. The

basis for the trial court’s summary judgment ruling rejecting these claims was that

they were barred by the applicable statute of limitations. CR 54, 264-65.

Since the trial court entered the subject summary-judgment order, the Texas

Supreme Court in Wood v. HSBC Bank USA, N.A., No. 14-0714, 2016 Tex. LEXIS

383, 2016 WL 2993923, at *3 (Tex. May 20, 2016), held that there is no statute of

limitations that might preclude a home-equity borrower from contending that the

subject home equity loan is unenforceable due to an alleged violation of the Texas

constitution in its origination.

As the trial court did not have the benefit of the Wood opinion when

considering Appellees’ motion for summary judgment, Appellees recognize that

this cause should be remanded to the trial court for that purpose. Appellees further

recognize that the costs on appeal are to be taxed against them.

WHEREFORE, Appellees request that the Final Judgment from the Trial

Court be reversed and this cause remanded to the Trial Court for further

proceedings as indicated above; that the costs on appeal be charged against

Appellees; and for such other relief to which the Appellees may be entitled.

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Respectfully submitted,

By: /s/ Mark D. Cronenwett MARK D. CRONENWETT Texas Bar No. 00787303 mcronenwett@mwzmlaw.com

Mackie Wolf Zientz & Mann, PC 14160 N. Dallas Parkway, Suite 900 Dallas, Texas 75254 (214) 635-2650 (214) 635-2686 (Fax)

Attorneys for Appellees CU Members Mortgage, a Division of Colonial Savings, F.A. and First Western Title Co.

CERTIFICATE OF CONFERENCE

I hereby certify that I conferred with Gregory Sherwood, Counsel for Appellant Ben Melton, regarding this Motion and Appellant is opposed to the granting of the relief requested herein for the reason that Appellant disagrees with Appellees’ intent to ask the trial court to retain the moneys deposited as supersedeas in this matter following remand.

/s/ Mark D. Cronenwett___________ MARK D. CRONENWETT

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CERTIFICATE OF SERVICE

I hereby certify that on the 17th day of November, 2016, a true and correct copy of the foregoing was served via the state electronic filing service to the counsel of record listed below:

Gregory Sherwood P O Box 200613 Austin, Texas 78720-0613 gsherwood@mail.com Attorney for Appellant /s/ Mark D. Cronenwett___________ MARK D. CRONENWETT