ACCEPTED 14-13-00502-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 1/5/2015 11:48:34 PM CHRISTOPHER PRINE CLERK
No. 14-13-00502-CV IN THE COURT OF APPEALS FOR THE FOURTEEN DISTRICT OF TEXAS FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS HOUSTON, TEXAS 1/5/2015 11:48:34 PM CHRISTINE E. REULE, CHRISTOPHER A. PRINE Clerk Appellant v. M & T MORTGAGE, M & T BANK, BAYVIEW LOAN SERVICING, LLC, BAYVIEW FINANCIAL TRADING GROUP, LP, BAYVIEW FINANCIAL,LP, AND HUGHS, WATTERS, ASKANASE, LLP Appellee __________________________________________________________________ On Appeal from Cause No. 200875636 234 Judicial District Court of Harris County, Texas th
__________________________________________________________________ APPELLANT’S REPLY BRIEF
CHRISTINE E. REULE Pro Se 1831 Sherwood Forest #24 Houston, Texas 77043 (713) 365-0535
APPELLANT REQUESTS ORAL ARGUMENT IDENTITY OF PARTIES AND THEIR COUNSEL
PARTIES COUNSEL CHRISTINE E. REULE Pro Se 1831 Sherwood Forest #24 Houston, Texas 77043 (713) 365-0535
M& T MORTGAGE, M & T BANK, BAYVIEW Daniel Patton LOAN SERVICING, LLC, BAYVIEW Scott Patton, P.C. FINANCIAL TRADING GROUP, LP, 3939 Washington Avenue, BAYVIEW FINANCIAL,LP Suite 203 Houston, Texas 77007 Telephone: 281-377-3311 Fax: 281-377-3267 Email: dpatton@scottpattonlaw.com
HUGHES, WATTERS, ASKANASE, LLP C. Ed. Harrell Hughes, Watters & Askanase, L.L.P. Three Allen Center 333 Clay, 29th floor Houston, TX 77002 Telephone: (713) 759-0818 Fax: (713)759-6834
RLZ INVESTMENTS Richard A. Battaglia P.O. Box 131276 Houston, Texas 77219-1276 Telephone No. (713) 521-3570 Fax: (713) 521-5373 Email: rab@rabpc.com
2 Cases Austin v. Countrywide Homes Loans, 261 S.W.3d 68 (Tex.App.Houston [1st Dist.] 2008) ............................................................................................................................ 31 Bernard v. Bank of America, N.A., *9, 2013 Tex. App. LEXIS 1045 (Tex. App- San Antonio, Feb. 13, 2013 ....................................................................................... 15, 16 Bosque Trading Enterprises, Inc. v. Business Loan Cetner, LLC, (Tex.App.— Waco 2012) ............................................................................................................................ 34 Brescia v. Slack & Davis, LLP (TexApp.-Austin 2010) ................................................ 34 Case Funding Network, LP v. Anglo-Dutch Petro, 264 S.W.3d 38 (Tex.App. – Houston [1st Dist.] 2007.................................................................................................... 41 Charter Nat'l Bank-Houston v. Stevens, 781 S.W.2d 368, 371 (Tex.App.-Houston [14th Dist.] 1989, writ denied)........................................................................................ 17 Crider v. Crider, No. 01-10-00268-CV, 2011 WL 2651794, at *5 (Tex. App.- Houston [1st Dist.] July 7, 2011, pet. denied) (mem. op.) .................................... 26 Employers Cas. Co. v. Peterson, 609 S.W.2d 579, 585 (Tex. App.—Dallas 1980, no writ).................................................................................................................................... 20 Flenniken v. Longview Bank & Trust Co., 661 S.W.2d 705, 707 (Tex.1983)........ 42 Fort Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009) ....................................................................................................................................... 33 Fort Brown Villas v. Gillenwater, 285 SW3d 879 (Tex.2009) ................................... 28 Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994). ...................................................................................................................................... 27 Freyermuth v. Credit Bureau Services, Inc. 248 F.3d 767, 770, (COA-8th Cir. 2001) ....................................................................................................................................... 11 Gainesville Oi & Gas v. Farm Credit Bank, 847 S.W.2d 655, 659 (Tex.App. – Texarkana 1993, no writ).................................................................................................. 18 Glass v. Carpenter, 330 S.W.2d 530, 537 (Tex.Civ.App.1959) ................................. 32 Glaze v. Chase Home Finance, LLC, 704 F.3d 453, 457 (COA-6th Cir. 2013) ..... 37 Henry v. Chase Home Finance ........................................................................................... 17 Holy Cross v. Wolf, 44 W.W.3d 562 (Tex.2001) ............................................................ 36 Hycarbex, Inc. v. Anglo-Suisse, Inc., 927 S.W.2d 103, 110 (Tex.App.-Houston [14th Dist.] 1996, no writ). .............................................................................................. 41 In re Saldivar, No. 11-10689, 2013 WL 2452699 (Bankr. S.D. Tex. June 5, 2013) ....................................................................................................................................... 30 Irwin v. Par-Oil Well Servicing Co., 349 S.W.2d 277, 278 (Tex.Civ.App.— Texarkana 1961, writ ref'd n. r. e.) ............................................................................... 20 Jerman v. Carlisle, McNellie, Rini, Kramer, 130 S.Ct.1605 ....................................... 8 Knight v. Int'l Harvester Credit Corp., 627 S.W.2d 382, 389 (Tex.1982) ............... 42 Leavings v. Mills, 175 S.W.3d 301 (Tex.App.Houston [1st Dist.] 2004, no pet.) 31 Leavings v. Mills, 175 SW3d 301 (Tex.App. – Houston [1st Dist] 2004.................. 29 Lopez v. Munoz, Hockema & Reed .................................................................................... 40 Martin v. New Century Mortgage Co., 377 S.W.3d 79 (Tex.App.-Houston [1st Dist.] 2012) ............................................................................................................................ 31 Martinez v. Williams, 312 S.W.2d 742, 752 (Tex.Civ.App.—Houston 1958, no writ) .......................................................................................................................................... 21
3 Mattson v. U.S. West Communications, Inc., 967 F.2d 259, 261 (8th Cir.1997) . 11 Miller v. Homecomings Fin., LLC, 881 F.Supp. 2d 825, 831 (S.D. Tex. 2012 ...... 30 Miller, .......................................................................................................................................... 30 Miller, supra @832 ................................................................................................................. 30 Millet v. JP Morgan Chase, N.A., 2012 WL 1029497, *4 (W.D.Tex. Mar. 26, 2012) ................................................................................................................................................... 31 Morris v. Aguilar, 369 S.W.3d (Texas 2012) .................................................................... 9 Murphy v. Aurora Loan Servs., LLC, 699 F.3d 1027, 1033 (8th Cir.2012 ...... 29, 32 Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App.-Houston [14th Dist.] 2002, no pet.) .................................................................................................................................... 26 Norwood v. Chase Home Finance LLC, 2011 WL 197874 (W.D.Tex. Jan. 19, 2011) ....................................................................................................................................... 31 Payne v. Hartford Fire Insurance Co., 409 S.W.2d 591, 595 (Tex.Civ.App.— Beaumont 1966, writ ref'd n. r. e.) ................................................................................ 20 Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam)........................... 9, 26 Peterson v. Black, 980 S.W.2d 818, 823 (Tex.App.-San Antonio 1998). .............. 15 Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135, 139 (Tex. App.—Corpus Christi 2008, no pet. .......................................................................................................... 17 Shepard v. Boone, 99 S.W.3d 263 (Tex.App.-Eastland 2003) .................................. 31 Stevens v. Charter National Bank – Houston, 781 S.W.2d 368, 371 (Tex.App. – Houston [14th Dist.] 1989).......................................................................................... 15, 16 Tri-Cities Const., Inc. v. Am. Nat. Ins. Co., 523 S.W.2d 426, 430 (Tex.Civ.App.1975) .............................................................................................................. 32 U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 941 N.E.2d 40, 53 (2011) ........ 31 Univ. Sav. Ass’n v. Springwoods Shopping Ctr, 644 S.W.2d 705, 705 ........... 15, 16 Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997) .............................................. 9, 26 Wieler v. United States Savings Ass’n of Tex., 887 S.W.2d 155, 158 (Tex.App.- Texarkana 1994, writ denied) ......................................................................................... 18 Wieler, at 160 ........................................................................................................................... 19 Wilson v. Draper & Goldberg, PLLC, 443 F.3d 373 – (4th Circuit 2006) ................ 37 Wind Mountain Ranch v. City of Temple, 333 S.W.3d 580, 581, 54 Tex. Sup. Ct. J 286. (Tex. 2010) ........................................................................................................ 36 Statutes 15 U.S.C. § 1692a(6) .............................................................................................................. 34 15 U.S.C. § 1692e ..................................................................................................................... 9 15 U.S.C. 692g(b) ...................................................................................................................... 8 15 U.S.C. Section 1692c ....................................................................................................... 33 Civil Practice and Remedies Code ............................................................................... 32, 33 Property Code Sec. 51.002 ................................................................................................... 12 Section 16.035/16.036 of the Civil Practice and Remedies Code .......................... 33 Section 1692g ............................................................................................................................. 9 Section 1692k ............................................................................................................................ 9 Other Authorities 6A C.J.S. ASSIGNMENTS § 132 (2013 ............................................................................ 28
4 Rules rule 193.6 ............................................................................................................................ 29, 30 Rule 196.3 ................................................................................................................................. 30 TEX. R. CIV. P. 193.6 ............................................................................................................ 30 TEX.R.APP. P. 38.1(f) ......................................................................................................... 5, 22 TRAP 38.1(g) ............................................................................................................................. 22
5 TERMS AND ABREVIATIONS USED WITHIN THE BRIEF
BFTG Bayview Financial Trading Group, LP
BLS Bayview Loan Servicing, LLC
Brf. Appellant’s Brief filed on September 29, 2014
CR Clerk’s Record
DT Deed of Trust
FDCPA Fair Debt Collection Practice Act, 15 U.S.C. 1692
FE Financial Entities i.e., Bayview Loan Servicing, Bayview Financial Trading Group, LP, Bayview Financial, LP, M&T Mortgage, M&T Bank
FEBrf. Financial Entities Response Brief
HWA Hughes Watters Askanase, LLC
HWABrf. HWA and Trustee’s Response Brief filed on December 15, 2014.
MSJ Motion for SJ
RR Reporter’s record
SCR Supplemental Clerk’s Record
SJ Summary Judgment
2CR Second Supplemental Clerk’s Record
TFDCA Texas Fair Debt Collection Act, Texas Finance Code Chapter 392
Trustees Carolyn Taylor, Sandy Dasigenis, Jeff Leva, and Audrey Lewis
6 7 ARGUMENT AND AUTHORITY:
HUGHES WATERS ASKANASE AND THE TRUSTEES’ RESPONSE BRIEF:
HWA and the Trustee’s arguments are misplaced. (Hereinafter
referred to collectively as “HWA”) HWAbrf8-9, CR87 is page 5 of the
affidavit of Christine Reule. Appellant therefore objects and moves
to strike Appellees’ argument that they filed any response or motion
for SJ as they have no reference to any record before the court.
Appellant’s DTPA claims against HWA and the trustees are for
fair debt collection violations, and the foreclosure sale of her
property. As she correctly noted, HWA and the trustees are debt
collectors under both the state and federal act. See Jerman v.
Carlisle, McNellie, Rini, Kramer, 130 S.Ct.1605. HWA and Trustees
contend that Reule failed to reference the record. This simply is not
true. See page 11 of Appellant’s rewritten brief. Throughout the
statement of facts, Appellate repeatedly referenced the court records
and trial transcripts.
8 Appellant never waived any argument or failed to brief her
arguments. Contrary to this statement1, "[D]isposing of appeals for
harmless procedural defects is disfavored." Perry v. Cohen, 272
S.W.3d 585, 587 (Tex. 2008) (per curiam) (citing Verburgt v.
Dorner, 959 S.W.2d 615, 616 (Tex.1997)). Instead, "[a]ppellate briefs
are to be construed reasonably, yet liberally, so that the right to
appellate review is not lost by waiver." Id. Appellate courts must
treat the statement of an issue "as covering every subsidiary
question that is fairly included." TEX.R.APP. P. 38.1(f). An appellant
can preserve error "in the body of their appellate brief," even if it is
not separately listed in the notice of appeal or presented as an issue
in the brief. Perry, 272 S.W.3d at 586.
The Texas Supreme Court has recognized that many indigent
parties are pro se. See Morris v. Aguilar, 369 S.W.3d (Texas 2012)
(holding that to require a pro se party to object to a late-filed
contest to an affidavit of indigence in order to preserve error —
something the party is not likely to know to do — is to eviscerate
the protection Rule 20.1(f) is intended to afford.) Reule is
completely indigent and did not chose to be unrepresented. One of 1 See Weeks Marine, Inc. v. Garza, 371 S.W.3d. 157, 162 (Tex. 2012)
9 the issues on appeal is whether or not her attorney should have
been allowed to withdraw. Any errors in failing to comply with the
rules is a direct result of the wrongful withdrawal of her attorney
who promised to likewise handle the appeal. However, the trial
court allowed him to withdraw to the determent of Appellant.
Lastly, if this court were to find that she inadequately brief her
issues as contended by Appellees, then Appellant would show that
this court required her to remove over 5000 words from her original
brief, thus limiting her ability to adequately brief all of her issues.
Appellant did her best, referenced her documents, her evidence,
and her legal arguments.
FAIR DEBT COLLECTIONS CLAIMS:
Next HWABrf argue that SJ for them because the statute of
limitations had run, and no damages. They cite no reference to the
record showing that this argument was presented to the trial court.
Rather, they make this argument on appeal, and never filed a cross-
appeal. Therefore, Appellant’ objects to this argument as being
unsupported and untimely, and not properly before this court. The
10 court should therefore reverse and render on Appellant’s FDCPA
and TFDCA claims.
Even for the sake of argument, the Courts have previously
held that in cases regarding abusive debt collection letters, the date
of the violation of the FDCPA occurs on the date the letter that
allegedly does not comply with the FDCPA's requirements is
sent to the debtor. See Mattson v. U.S. West Communications,
Inc., 967 F.2d 259, 261 (8th Cir.1997), Freyermuth v. Credit Bureau
Services, Inc. 248 F.3d 767, 770, (COA-8th Cir. 2001). The
overwhelming evidence shows that suit was filed against HWA and
the Trustees on April 6, 2009 (CR38). The evidence shows that
HWA and Trustees sent debt collection letters, and notices of
acceleration after that date and within a year of that date (CR571 in
its entirety, 673-701). Each time Appellant request verification of
the debt, and the debt was never verified. See CR571, Ex. A6-A14.
In fact, HWA and the Trustee foreclosed on her property without
providing 30 days notice to cure. Thus, without strict compliance
with Texas Property Code Chapter 51, the foreclosure was wrongful
and it likewise violates both Acts. HWA and the Trustees had
11 previously stated the debt was paid in full (CR64), and 4 years later
foreclosed. This is a direct violation of the Act. Obviously, suit was
filed within the 1 year period under FDCPA and 2 years under
TFDCA and filed just 2 months after February 9, 2009 debt
collection letter HWA and the Trustee sent to her and failed to verify
the debt. See CR673. This is likewise true on the limitations
arguments made regarding the statute act. Any claim prior to
February 9, 2007 would not be covered under FDCPA, however, the
claims made by Appellant against HWA the Trustees were after that
date. Furthermore, HWA and the Trustees never ceased collection
activities after Appellant requested the debt be verified in violation
of 15 U.S.C. 1692g(b). (CR571)
Appellant adduce evidence to support her Fair Debt Collection
Claims. See CR573, 618-625. See Brf.11&83. HWA and the
trustees are specifically named, and what their conduct was i.e.,
failed to verify the debt upon request, and proceeded with the
foreclosure sale of Appellant’s property without verifying the debt;
and trying to collect on a debt that did not exist, causing confusion
as to who owned the debt. Failure to cease all debt activity until
12 such time a debt can be verified is a violation of the act. See
Section 1692g, CR645. It was HWA and the trustees that said the
debt had been paid in full, then over 4 years later, foreclosed on
Appellant’s property. CR64, 667-701. HWA even stated that the
property was not in foreclosure, and then 4 days later, it foreclosed
her property. CR694-695. The references to the record cited by
HWA and the trustees clearly demonstrate that Reule was able to
prove her claims. The HWA and Trustees don’t dispute that they
are debt collectors. See CR 645-700. Those documents clearly
stated they are debt collectors. They also do not dispute that they
failed to verify the debt. They do not dispute the fact that their
notices of acceleration, and who actually owned the debt were
mispresentations2 and caused confusion as to who the owner was,
another violation of the Act. See CR573, 1004. In fact, Reule
specifically references her SJ evidence which contains exhibits
showing the debt collection efforts. HWAbrf cite no record showing
that the claim was time-barred. No reference to document
2 The Fair Debt Collection Practices Act prohibits a debt collector from the use of "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. Section 1692k of the statute allows the consumer to recover statutory or actual damages for violations of the Act.
13 supporting HWA/Trustees’ claim that the statute of limitations has
run renders any such argument waived.
Brf.P.83-101 specifically discuss the fact that attorneys are
debt collectors, Trustees, and the mortgage service company. She
relates specifically the law, and cites reference to her SJ CR571.
Not only did she brief the law and provide facts and evidence to
support it, but her SJ motion also sets forth the facts and
supporting law, as well as specific violation. See CR621-625 (speaks
directly to the violations).
Damages: Exhibit C in support of her MSJ is the business
records affidavit of Dr. Sadeghi (CR572, CR943)(Verdigo and
physical therapy as a result of lawsuit – support mental anguish
claims, intentional infliction of emotion distress, and FDCPA and
TFDCA claims). See also CR959 (property value of her home at time
of foreclosure). CR943 is the Harris County Property Tax records
reflecting the value of her property at the time of foreclosure. The
fact that she lost her home which was valued at $69,720 at the time
of foreclosure also supported her damage claims. (CR959) To claim
14 she wasn’t damaged and had no evidence to adduce damages is
without merit.
WRONGFUL FORECLOSURE:
HWABrf claims that one must be disposed of possession of her
property, and cites Peterson v. Black, 980 S.W.2d 818, 823
(Tex.App.-San Antonio 1998). However, Peterson actually states:
“the mortgagor is only entitled to such recovery if (1) title to the
property has passed to a third party.” The case is talking about
possession of title to the property, not use of the property. The
notion that wrongful foreclosures requires the property to pass to
another is well established. See Bernard v. Bank of America, N.A.,
*9, 2013 Tex. App. LEXIS 1045 (Tex. App- San Antonio, Feb. 13,
2013, also see Stevens v. Charter National Bank – Houston, 781
S.W.2d 368, 371 (Tex.App. – Houston [14th Dist.] 1989); Univ. Sav.
Ass’n v. Springwoods Shopping Ctr, 644 S.W.2d 705, 705 (Tex. It is
undisputed that title passed to RLZ Investments. (CR870)
The HWAbrf skip over the fact that they have a duty to be a
neutral party in the foreclosure proceedings. CR571, 676-678
15 clearly show that the Trustees were acting as attorneys for FE.
Carolyn Taylor is a partner in HWA, likewise with Ms. Varner.
The duties of HWA & Trustees are well established, and strict
compliance with all notice requirements set forth in the deed of
trust, as well as Property Code Sec. 51.002 are mandatory. The
undisputed fact is no notice to cure was ever given prior to the
7/5/11 foreclosure sale of Appellant’s property, a fact of which is
undisputed. (CR571, 687-701)
It is undisputed fact that Appellant’s property was sold at
auction to RLZ Investment ((which has never filed a brief in this
appeal)(CR870), and title passed to this third party. To recover on
wrongful foreclosure claims, the property in question must
have been sold. Bernard v. Bank of America, N.A., *9, 2013 Tex.
App. LEXIS 1045 (Tex. App- San Antonio, Feb. 13, 2013, also see
Stevens v. Charter National Bank – Houston, 781 S.W.2d 368, 371
(Tex.App. – Houston [14th Dist.] 1989); Univ. Sav. Ass’n v.
Springwoods Shopping Ctr, 644 S.W.2d 705, 705.
To claim that a wrongful foreclosure can only be asserted if
one is evicted from their property after the property was sold to a
third party at an auction files in the face of principles of equity,
16 reason, logic, fairness, and gives the foreclosing entities, and the
parties they represent, a free walk. This proposition further
suggests that no foreclosure legitimately takes place without
evicting the prior owner. This is not logical. It is only logical in the
terms of dispossession of title.
To claim that dispossession of property is equal to eviction
would run afoul of wrongful foreclosure claims, and substantially
change the meaning of title and rights to a property. Regardless,
Appellant testified (RR5:221) that she did not live in her residence
for a period of 4 months due to the foreclosure.
It is further undisputed that the sales price was grossly
inadequate3 because the amount bid at foreclosure was only
$23,000, and the tax appraised value was $69,720, nearly $46,000
less than the value of the property; and the FE instructed HWA &
Trustees to only cover the alleged debt and no more. CR866-867.
HWABrf omit that Henry v. Chase Home Finance deals with an
“attempted” wrongful foreclosure, which is not recognized by Texas
law, and not relevant to this case. 3 Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135, 139 (Tex. App.—Corpus Christi 2008, no pet.The elements of a wrongful foreclosure claim are: (1) a defect in the foreclosure sale proceedings; (2) a grossly inadequate selling price; and (3) a causal connection between the defect and the grossly inadequate selling price. Charter Nat'l Bank-Houston v. Stevens, 781 S.W.2d 368, 371 (Tex.App.-Houston [14th Dist.] 1989, writ denied)
17 Moreover, in Wieler v. United States Savings Ass’n of Tex., 887
S.W.2d 155, 158 (Tex.App.-Texarkana 1994, writ denied) a case
involving DTPA and wrongful foreclosure Wieler contended that
there was a shortage in the escrow account4, the monthly payment
amount was not correct, and the attorney fees charged to the
escrow (which resulted in an escrow shortage) was not authorized
by the bankruptcy order, note or deed of trust. The trial court
granted SJ in favor of the bank. The court of appeals overruled it
holding that “As to wrongful foreclosure, a person who suffers
loss or material injury because of irregularities in a foreclosure
sale is entitled to maintain a suit for wrongful foreclosure. See
Gainesville Oi & Gas v. Farm Credit Bank, 847 S.W.2d 655, 659
(Tex.App. –Texarkana 1993, no writ). A fact dispute as to the source
of the escrow shortage that ultimately led to foreclosure also
raises questions concerning the regularity of the foreclosure.
Thus, SJ was also improper on the claim for wrongful foreclosure.”
The court further found that D.T.P.A. claims for shortages in the
escrow account was an unconsciousable action or course of action
4 Reule contended that first, there was an overpayment in the escrow account that BLS was required to apply to the principal as directed; and later, there was a shortage in the escrow account due to the fact that an escrow payment was sent and never applied. See CR571
18 under the D.T.P.A. Wieler, at 160. Wieler is factually similar to the
present case. There was a dispute in the escrow shortages in
Reule’s account. (CR672 “loan was originated non escrow) First,
there was a dispute that principal only payments were placed in a
“suspended escrow” account5, and later disappeared without any
explanation6. It was never credited against the principal nor
returned to Appellant. Secondly, after taxes were wrongfully paid to
Harris County, Appellant sent a check in the amount of the tax paid
with instructions to repay the escrow shortage, but BLS refused to
credit the account, which lead to an additional the dispute on the
account, balance on the loan, and ultimately the accord and
satisfaction, and later the foreclosure. RR8,P.20-30,32.
To Appellant’s knowledge, HWA never filed any directed verdict
and does not refer to any record so indicating. Therefore, this court
must disregard its arguments for lack of reference to any record.
VIOLATION OF THE LIMINE AND EVIDENCE OF PRIOR LAWSUITS
The Appellees fail to cite any case that a claim for mental
anguish can open up the doors for prior lawsuits, and only cites
5 CR135-137 6 CR892 appears to indicate the suspended escrow was applied to escrow shortage. (last entry)
19 Evidence Rule 403 in support of its position. However, Rule 403
supports appellant’s positions, which provides “Although relevant,
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay,
or needless presentation of cumulative evidence.” Long standing
Texas law has already determined that prior lawsuits are irrelevant
and highly prejudical. See Employers Cas. Co. v. Peterson, 609
S.W.2d 579, 585 (Tex. App.—Dallas 1980, no writ). If the evidence
of other transactions between plaintiff and a third party is not
relevant to any issue pleaded in the case it is inadmissible. Evidence
of another claim to show that plaintiff is a “professional litigant” is
improper. See Employers Cas. Co. v. Peterson, 609 S.W.2d 579, 585
(Tex. App.—Dallas 1980, no writ). Irwin v. Par-Oil Well Servicing
Co., 349 S.W.2d 277, 278 (Tex.Civ.App.—Texarkana 1961, writ ref'd
n. r. e.); see Payne v. Hartford Fire Insurance Co., 409 S.W.2d 591,
595 (Tex.Civ.App.—Beaumont 1966, writ ref'd n. r. e.). Employers
also argues that this evidence was admissible because it bears on
Peterson's credibility as a witness. The fact that Peterson made
one prior similar claim does not bear on his truthfulness.
20 Furthermore, it was inadmissible if it was an attempt to show
claims-mindness of the plaintiffs. See Martinez v. Williams, 312
S.W.2d 742, 752 (Tex.Civ.App.—Houston 1958, no writ).
Prior lawsuit claiming mental anguish are not admissible for a
jury. This is no different that a person having a prior accident. If
the injuries are the same, then evidence of the prior injury is put
into evidence, but the facts and circumstances i.e., claim and/or
lawsuit, are not relevant. Appellees never argued that the prior
claims involved mental anguish claims, rather, they argued that she
had 14 lawsuit and couldn’t remember some of them. RR7:66
David Page, Juror No. 10, testified that the jury was prejudiced by
the prior lawsuit and thought that Appellant was only in it for the
money. CR1806-7. Furthermore, there was a mischaracterization
of the lawsuits. Appellees claimed that there was 14 lawsuit and 14
appeals. That was a falsehood. One of the cases involved
Appellees homeowner’s association which went through several
courts and several appeals and span over 10 years, but it certainly
did not amount to 14 cases and 14 appeals. Appellees
intentionally mislead the jury in a desperate attempt to prejudice
them because the evidence clearly supported Appellant’s claims.
21 FE claimed Appellant was misleading the jurors on that issue.
RR5:267 FEs’ characterization of the lawsuits and false claims was
solely designed to prejudice the jury as stated by David Page
(CR1807).
Even the Jurors objected to some of the comments and
misleading evidence. CR5:106-107, 272. It was clear that the
entire line of questions was for nothing more than to prejudice the
jury, and FE was successful in doing that. But for this prejudicial
evidence, the jury would have rendered a very different verdict. As
David Page states, the jury found against Appellant solely based
upon these prior lawsuits. There was no evidence that showed that
stress from prior lawsuits caused or contributed to any mental
anguish claims, and Appellees cite nothing in the record to support
its claims. Rather, they cite RR3, P. 50-65, which clearly shows the
objections made by Appellant and a great discussion regarding the
prejudicial nature of such evidence. It does not show that any
testimony opened the door. Appellees claims that the evidence
showed may have been mental anguish claims in other lawsuit that
attributed to the present claims is not the same as showing it. The
testimony was far too prejudicial to have allowed it, and the court
22 was wrong in allowing its introduction over the motion in limine
and overrule Appellant’s objections.
FE doesn’t get it both ways. First it claims that the business
records affidavit of Dr. Sadeghi, which proved up her mental
anguish claims, was rightfully excluded. FE then claims that prior
lawsuit claims might show that other mental anguish claims
contributed to her mental anguish claims. The business records
affidavit and attached records clearly foreclosed that notion.
(CR943,1234; RR8D:57) The record clearly demonstrated that prior
to the mortgage lawsuit and the foreclosure proceedings, Appellant
had no Vertigo or stress (which required physical therapy), and the
record clearly denote that the mortgage lawsuit was the cause of the
Vertigo and stress so severe it required physical therapy. (CR572,
CR943).
Contrary to HWAbrf claims, Appellant specifically objected to
introduction of her prior lawsuits. RR3:50-64. RR3:40 judge
overruled objections that lead to the motion in limine being violated.
WITHDRAWAL OF APPELLANT’S COUNSEL:
23 HWA, Trustees and FE have no standing to argue any merits
of her counsel’s motion to withdraw. They have no judicable
interest in Appellant’s counsel’s representation of her or his
withdrawal. Therefore, Appellant objects to these arguments and
requests that the court disregard them. Furthermore, although
HWA/Trustees references the court docket, Reule disputes that
what is claims is true. The stated grounds for withdrawal were that
Appellant had allegedly retained new counsel (CR371), which simply
was not true. There was overwhelming evidence to support the fact
that no new counsel had been retained, and none ever appeared in
this case. Appellant tried several times but could not find another
attorney to help her, she had no money to pay an attorney, and G.P.
Matherne had previously represented her pro bono, and promised
to handle any appeal—pro bono. There was no conflict between
Appellant and her counsel, and an attorney and his client can
disagree on certain issues and it’s not grounds to allow a
withdrawal. The substantial harm done to Appellant as a result of
the withdrawal was far greater than any alleged disagreement
between her and her attorney. GP Matherne was not an indentured
servant, he had agreed to represent Appellant Pro Bono. Any
24 defects in the case, evidence, trial and appeal are a direct result of a
pro se litigants lack of knowledge, and a trial court allowing her pro
bono attorney to withdraw without good cause. The withdrawal
devastated Appellant’s case. The case should be reversed and
retried due to this abuse of discretion and otherwise incurable
error.
THE FINANCIAL ENTITES RESPONSE:
First, FE did not file a cross-appeal, and their issues presented
for the appeal should not be considered i.e., jury finds, arguments
not present in trial court. The only issues that can be addressed
are those raised by Appellant. Appellant objects to the cross-
appeal. The focus of FEs’ brief appears to be the trial, and it skips
over the fact that the SJs should have and would have precluded
the the trial, and the only thing the jury should have considered
was Appellant’s damages. FE also fails to reference any documents
in support of its arguments. Had the court properly granted MSJ, it
may have put the parties in a position to settle and no trial would
have been necessary.
Appellant also objects to Appellees statement of facts at page
19 wherein they claim that she agreed that when she signed the
25 note, she agreed to repay the Note. This is a misstatement of facts,
as the court well see below. There was no evidence that BLS was in
possession of any Note signed by Appellant.
Appellant also objects to the Dx reference. Although there’s an
explanation to the Dx, not one single Dx references the Volume No.,
or page number where it can be found. Facts pertinent to the issue
must be supported by the record. TRAP 38.1(g). The Dx reference
does not support the record, and this court is not required sift
through the record without guidance from the party to find support
for a party's bare assertion of error."7 Crider v. Crider, No. 01-10-
00268-CV, 2011 WL 2651794, at *5 (Tex. App.-Houston [1st Dist.]
July 7, 2011, pet. denied) (mem. op.); see Nguyen v. Kosnoski, 93
S.W.3d 186, 188 (Tex. App.-Houston [14th Dist.] 2002, no
pet.) ("This Court has no duty to search a voluminous record
without guidance from Nguyen to determine whether an assertion of
reversible error is valid."). "[E]rror may be waived by inadequate
7 This is especially true when the party is represented by counsel. Its fundamentally unfair to require pro se litigants to know how to reference their evidence in a concise manner, and appellate briefs are to be construed liberally, so the rights to appellate review is not lost by waiver. Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam) (citing Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997)). TEX.R.APP. P. 38.1(f).
26 briefing." Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d
279, 284 (Tex. 1994). For these reasons, Appellant objects to the
Dx reference and requests that his court not consider the reference,
and acknowledge that those arguments were waived.
Also, many of the references to the record does not state what
the Financial Entities claims it states, nor does FE reference any
evidence in support of its arguments.
The FEs does not properly address in their brief the sj motion,
rather it focus on the trial. SJ was originally granted in Appellant’s
favor on expiration of statute of limitations and break in chain of
title. It was later overruled by the trial court based upon new
undisclosed theories (new default), alleged expert witnesses (JoAnn
Snyder) and witness (Gerald Truebe). Appellant timely objected and
moved to exclude those new theories and witnesses. CR1096-1221,
and CR1080. FE NEVER FILED MOTION FOR LEAVE8 OR
OTHERWISE DEMONSTRATED THAT GOOD CAUSE EXISTED TO
ALLOW THE NEW EVIDENCE AND WITNESSES AFTER THE SJ
HAD ALREADY BEEN GRANTED IN APPELLANT’S FAVOR, and 8 193.6(b) places burden on party seeking to introduce evidence to demonstrate good cause and lack of surprise and prejudice. Section (c) a court can continue the proceeding to allow the late evidence. However, in this case, the SJ had already been granted in Appellant’s favor, and the motion for reconsideration was too late to provide new evidence without demonstrating good cause. FE never attempts to argue good cause, nor directs this court to any evidence showing that any such arguments were made.
27 does not refer the court to any evidence demonstrating that it
complied with the Rules of Civil Procedure, Rule 193.6, or that it
made any argument in the trial court on good cause existing and
lack of prejudice. Rather, FE takes the position that Rule 193.6
only applies to trials, and not SJs, ignoring Supreme Court
precesendence to the contrary. Fort Brown Villas v. Gillenwater,
285 SW3d 879 (Tex.2009)(holding “In this premises liability case,
we decide whether Texas Rule of Civil Procedure 193.6, which
provides for the exclusion of evidence due to an untimely response
to a discovery request, applies in a SJ proceeding. We hold that it
does and, therefore, reverse the court of appeals' judgment.”).
(Emphasis added)
The trial court overruled her objections and as such error or
otherwise abused its discretion. Exclusion under Rule 193.6 is
mandatory.
BAYVIEW DOES NOT OWN THE DEED OF TRUST AND THE JURY FINDING CAN BE REVERSED BECAUSE THE GREAT WEIGHT OF THE EVIDENCE SHOWING THAT BAYVIEW LOAN SERVICING DOES NOT OWN THE NOTE AND DEED OF TRUST:
BLS contends that it owns the deed of trust and note because
the jury said so. The evidence clearly showed the mortgage (note
28 and deed of trust) was purchased by Bayview Financial Trading
Group (hereinafter “BFTG”) RR8E:479, a completely different entity
from BLS. BLS’ own records, CR898-899 clearly denote that there
was no assignment to BLS. Nowhere in the chain of title or the
chain of endorsements does BFTG appear. (CR571. Leavings v.
Mills, 175 SW3d 301 (Tex.App. – Houston [1st Dist] 2004) is on
point. In Leavings, there was no evidence show the chain of title of
the Leavings' note from "builder" to himself. Like in Leavings,
supra, there is no evidence to show the chain of title from
FirstCapital Bank to BLS. The Mortgage Loan Purchase Agreement,
(CR571, RR8E:47) shows the mortgage was sold to BFTG which is
conspicuously missing in both the chain of title and chain of
endorsement. This is a fatal defect in the chain of title10. As a
matter of law, BLS did not and could not have owned the Note and
Deed of Trust at anytime whatsoever.
This was all resolved by the court’s original ruling on the SJ
which should never have been overturned by the trial court. FE
9 September 14, 2011, the Business Records Affidavit of Prosperty Bank f/k/a FirstCapital Bank, SSB was filed with the trial court, which contained the exact same Mortgage Loan Purchase Agreement. 10 Murphy v. Aurora Loan Servs., LLC, 699 F.3d 1027, 1033 (8th Cir.2012 (recognizing that mortgagors can defend against foreclosure by establishing a fatal defect in the purported mortgagee's chain of title).
29 skips over these facts. The PSA set forth all parties that were
supposed to appear in the chain of title. Brf.29.
APPELLANT HAD STANDING UNDER PSA TO CHALLENGE IF ASSIGNMENTS WERE VOID AB INITIO
Appellant never sued for breaches of the PSA, rather, she
challenged BLS’ standing to foreclosure because the assignments
were void ab initio. To claim that Appellant cited no Texas case law
on her PSA arguments is incorrect. Brf.33&53, cites Miller v.
Homecomings Fin., LLC, 881 F.Supp. 2d 825, 831 (S.D. Tex.
2012) and In re Saldivar, No. 11-10689, 2013 WL 2452699, *4
(Bankr. S.D. Tex. June 5, 2013); (holding New York trusts
(substantively the same as the ones at issue here) were not the
owners of notes when the notes were purportedly transferred to the
trusts after their startup dates. FE does not dispute this fact.
Appellant has a right to challenge any defect in chain of title, or
defect in who actually owns and holds the Note, or any other issue
which would rendered the assignment void ab initio, including
evidence of which entity was required to be in the chain of title.
In Miller, supra @832, the court specifically found:
30 “Texas courts routinely allow a homeowner to challenge the chain of assignments by which a party claims the right to foreclose. See Martin v. New Century Mortgage Co., 377 S.W.3d 79 (Tex.App.-Houston [1st Dist.] 2012); Austin v. Countrywide Homes Loans, 261 S.W.3d 68 (Tex.App.Houston [1st Dist.] 2008); Leavings v. Mills, 175 S.W.3d 301 (Tex.App.Houston [1st Dist.] 2004, no pet.); Shepard v. Boone, 99 S.W.3d 263 (Tex.App.-Eastland 2003); Priesmeyer v. Pacific Southwest Bank, F.S.B., 917 S.W.2d 937 (Tex.App.-Austin 1996). Federal district courts in this state have also entertained chain of title claims by mortgage debtors challenging foreclosure proceedings. See Millet v. JP Morgan Chase, N.A., 2012 WL 1029497, *4 (W.D.Tex. Mar. 26, 2012);Norwood v. Chase Home Finance LLC, 2011 WL 197874 (W.D.Tex. Jan. 19, 2011). Nor is Texas alone among non-judicial foreclosure states in permitting such suits. U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 941 N.E.2d 40, 53 (2011).
After all, the argument apparently goes, the Millers owe the money to somebody. In truth, the potential prejudice is both plain and severe — foreclosure by the wrong entity does not discharge the homeowner's debt, and leaves them vulnerable to another action on the same note by the true creditor. Banks are neither private attorneys general nor bounty hunters, armed with a roving commission to seek out defaulting homeowners and take away their homes in satisfaction of some other bank's deed of trust. MasterCard has no right to sue for debts rung up on a Visa card, and that remains true even if MasterCard has been assigned the rights of another third party like American Express. Unless and until a complete chain of transactions back to the original lender is shown, MasterCard remains a stranger to the original transaction with no claim against the debtor.
31 BLS DID NOT HAVE AUTHORITY TO FORECLOSE
(CR571, specifically CR960), Ms. Joyce Cauthen, Appellant’s
mortgage expert, also testifies to the chain of title and chain of
indorsement that likewise support Appellant’s claim that BLS has
no right to foreclose.
BLS continues to claim that Appellant has no standing with
reference to the PSA. This argument is misplaced. Appellant is not
attempting to enforce the terms of the instruments of assignment;
to the contrary, she urges that the assignments are void ab initio,
and New York law controls. (CR571) Texas courts follow the
majority rule that the obligor may defend "on any ground which
renders the assignment void." 11
Appellant has repeatedly demonstrated that there is a clear
break in the chain of title, and Appellant’s SJ should never have
been reversed by the trial court. See arguments on
Tex.R.Civ.P.193.6 motion to exclude below.
11 Tri-Cities Const., Inc. v. Am. Nat. Ins. Co., 523 S.W.2d 426, 430 (Tex.Civ.App.1975) (citing Glass v. Carpenter, 330 S.W.2d 530, 537 (Tex.Civ.App.1959)); see also, e.g., 6A C.J.S. ASSIGNMENTS § 132 (2013) ("A debtor may, generally, assert against an assignee ..., any matters rendering the assignment absolutely invalid ..., such as[] the nonassignability of the right attempted to be assigned, or a prior revocation of the assignment.");Murphy v. Aurora Loan Servs., LLC, 699 F.3d 1027, 1033 (8th Cir.2012 (recognizing that mortgagors can defend against foreclosure by establishing a fatal defect in the purported mortgagee's chain of title).
32 Appellant has repeatedly stated that the note she signed was
in purple ink. The jury specifically found that the parties did not
agree to the purple ink note. (CR1580)(CR1563 requested if BLS
was the owner and holder of Appellant’s note, but the trial court
rejected Appellant’s question) There was never any other question
submitted to the jury regarding whether or not BLS was the owner
and holder of the note. The court rejected every single one of
Appellant’s jury instructions (CR1152-1568) If there was no
agreement to a purple ink note, no proof that BLS had any Note
signed by Appellant, and no right to enforce a Note they do not own
or are in possession. There was no question regarding any other
note and any arguments regarding any other note was waived by
FE. A party not in possession of the original Note cannot foreclose
on a property. This is well established law.
APPLICATION OF RULE 196.3 IS CORRECT AS ALLEGED BY APPELLANT.
The Texas Supreme Court squashed that idea in Fort Brown
Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 881 (Tex.
2009) (rule 193.6's exclusionary sanction pertains to SJ, and is
automatic unless one of the rule's exceptions applies). See also
33 Bosque Trading Enterprises, Inc. v. Business Loan Cetner, LLC,
(Tex.App.—Waco 2012) (TEX. R. CIV. P. 193.6. Rule 193.6 of the
Texas Rules of Civil Procedure applies to SJ proceedings.); Castillo
v. Mizpah Residential Care, (Tex.App.—Corpus Christi 2014) (SJ –
193.6 exclusionary rule mandatory); Brescia v. Slack & Davis, LLP
(TexApp.-Austin 2010)(SJ – excluded two expert per Rule 196.3 due
to untimely designation).
FE never dispute that authority; never cite any authority in
support of its position.
FE contends that she references no evidence that FE failed to
disclose within 30 days before trial, is irrelevant as the motions to
exclude relate specifically to the motions for SJ and exclusion of the
untimely, undisclosed new legal theory and witnesses. The Texas
Supreme Court has already stated that the rule 193.6 applies to
SJs. Fort Brown Villas, supra.
FE failed to properly brief this issue and therefore has waived
any argument. The court should reverse and render on the issue of
expiration of statute of limitations and break in chain of title to
restore the court’s original ruling on those two specific issues.
(CR1042). Appellant’s objections to undisclosed legal theories and
34 witnesses should be sustained, and she requests that this court
reverse and rendered in her favor.
PSA ARGUMENTS AND THE APPLICATION OF NEW YORK LAW WERE NOT WAIVED.
First, the PSA argument are part of the motions for SJ in the
trial court below. (CR571) The trial court unilaterally rejected each
and every proposed Jury instruction Appellant made to the court
without proper consideration, and was a clear abuse of discretion.
The court never stated why they rejected it to allow Appellant an
opportunity to correct and resubmit it, the Court just decided that
all jury instruction submitted by Appellant were incorrect.
(RR6:186-235; RR7) FE completely skip over the SJ arguments on
the PSA. Appellant tried to submit questions, but the court refused
to allow her to do so. This was a clear abuse of discretion.
The jury never should have considered the PSA arguments
because the SJ on this issue should have been granted in
Appellate’s favor. FE doesn’t dispute this fact nor brief it, and
therefore has waived argument. The SJ (CR571) evidence
established the fact that Appellant had standing under the PSA,
and the court has overruled FE standing argument at least three
35 times. RR4:31-33. FE do not argue the SJ or evidence on her
FDCPA and TDFCA claims, and therefore have waived any
arguments. Accordingly, this court should reverse and render in
Appellant’s favor and allow a jury to consider her damages
THE LOAN WAS NEVER REINSTATED AFTER ACCELERATION AND THE FOUR YEAR STATUTE OF LIMITATIONS HAD RUN:
FEs’ arguments are wholly without merit and unsupported by
law and the record. Appellant should not be required to argue this
because the SJ was originally granted in her favor, and later
overturned by the trial judge based upon undisclosed legal theories
and undisclosed witnesses (see above re: 193.6 exclusion), and
such evidence was improperly included and relied upon in
overturning the original SJ. However, FE clearly overlooks, and
make no reference to the Supreme Court’s decision in Wind
Mountain Ranch v. City of Temple, 333 S.W.3d 580, 581, 54 Tex.
Sup. Ct. J 286. (Tex. 2010) dealing directly with notice
requirements and compliance with Civil Practice and Remedies
Code 16.036. FE’s reliance on Holy Cross v. Wolf, 44 W.W.3d 562
(Tex.2001), is misplace. See CR696-699 for further argument.
36 The Texas Supreme Court said that Section 16.035/16.036 of the
Civil Practice and Remedies Code specifically applies to this
situation. No new default was ever disclosed, and JoAnne Snyder
and Gerald Truebe were never identified in response to discovery,
and thus, were required to be excluded as
evidence/witness/theories in response to Appellant’s SJ.
FAIR DEBT COLLECTION AGAINST FE
FEbrf.47 states that she waived her claims regarding the
phone calls. Appellant filed a MSJ (CR571) establishing those
claims and specifically references those claims at Brf.81. Their
arguments have no merit. In her affidavit in support of her MSJ at
CR651, she specifically includes those phones and the dates and
times. This is irrefutable evidence of violations of 15 U.S.C. Section
1692c, and FE doesn’t dispute these facts. FE claims they are not
debt collectors. Wilson v. Draper & Goldberg, PLLC, 443 F.3d 373 –
(4th Circuit 2006) clearly states that they are. It is undisputed that
BLS allegedly obtained the mortgage after the accord, and alleged
default. See Glaze v. Chase Home Finance, LLC, 704 F.3d 453, 457
(COA-6th Cir. 2013) (The Act's definition of "debt collector" consists
37 of a general definition followed by a number of exceptions. See 15
U.S.C. § 1692a(6). One exception is relevant here: the term "debt
collector" does not include any person attempting to collect
"any debt owed or due or asserted to be owed or due another to the
extent such activity ... concerns a debt which was not in default
at the time it was obtained by such person." Id. § 1692a(6)(F)(iii).
It is undisputed there was an alleged default at the time BLS
acquired the debt. (CR716-5/2/2007 notation – BLS was
SERVICER) (CR571) (CR898 (2/27/2009) last notation, CR899-
2/23/2009 – no assignment). This evidence clear shows that BLS
was the servicer, and later allegedly became the hold of the Note.
This is undisputed evidence that as loan servicer, it was subject to
the act, and because the alleged debt was allegedly in default at the
time BLS became the alleged holder of the alleged Note, it continued
to be subject to the FDCPA. TFDCA stating anyone person
collecting a debt, meaning, an individual collecting a debt on behalf
of itself.
BREACH OF CONTRACT CLAIM AND ACCORD AND SATISFACTION
38 FEs’ arguments have no merit. Although Appellant did admit
to a breach, the breach was mischaracterized because Appellant
was not allowed to discuss the accord and the reasons for it. Yes,
Appellant stopped paying because she made a full and final
payment on the account, which was accepted and never repudiated
during the repudiation period, and FE being told repeatedly about
the accord. All FE had to do was return the check. To characterize
it as an admission is simply wrong. This is a manipulation of the
judicial process, the facts, and unconstitutional restraints by
refusing to allow a party to fully testify as to the accord and provide
an explanation as to why payments stopped. RR1-7, and the
Limine Order signed by the Court. Appellant has requested this
already, but does not have the 2SCR to reference.
FE makes no reference to any document to support its claim
that in the trial court in response to Appellant’s MSJ or anywhere
that the parties had no “legitimate dispute” and/or “bona fide
dispute”, to satisfy the elements of the accord. This is simply false.
See CR72 (specifically CR135-159, 164-175). The failure to apply
principal only payments to the principal amount and diverting
39 those payment by placing them in a “suspended escrow account”
(which was not required by the loan) is clear evidence of the
dispute. Paying taxes that were not owed was also a dispute.
Failing to credit the escrow upon return of escrow funds, is a
further dispute. Continuing to make charges against the account
in excess of the principal and taxes, also created a dispute.
Appellant also testified by affidavit that she made numerous calls
prior to letters trying to resolve this matter, to no avail. Charging
insurance and refusing to credit it when proof was sent showing it
was covered by the Homeowner’s association, created a dispute.
The account was never credited until years into the litigation
(CR722), and just before trial. This is overwhelming evidence that
there was a dispute.
FE cite Lopez v. Munoz, Hockema & Reed, in support of its
position it was unaware of any dispute. The case does not support
that position. The case involved a contingency fee, in which a case
settle and the contract provided for 40% if prior to appeal, after
appeal, it’s 45% contingency fee. The case was tried and later
settled before an appeal was perfected. At the settlement
40 negotiations, it mistakenly called for a 45% contingency fee. The
Lopez’s later sued to recover the 5% fee. The Supreme Court found
that because there was no dispute, no valid accord took place. (T]he
very existence of the dispute is the consideration for the accord and
satisfaction. Hycarbex, Inc. v. Anglo-Suisse, Inc., 927 S.W.2d 103,
110 (Tex.App.-Houston [14th Dist.] 1996, no writ).
FE claims the check constituting the accord is illegible. A bad
copy of a check provided by Appellant’s bank does not make it
illegible and appellant has no control over the quality of the copy.
The check clearly states it’s being tendered on the disputed
account. Appellant’s has neuromuscular disease which has caused
her handwriting to diminish over the years, but the check is legible.
Good faith tender does not require a certain percentage of the
debt to be tendered, and FE cites no authority to support its claims.
No Texas case has ever said that a certain percentage of the debt
must be paid in order to constitute good faith. See Case Funding
Network, LP v. Anglo-Dutch Petro, 264 S.W.3d 38, 53 (Tex.App. –
Houston [1st Dist.] 2007) (defining good faith pursuant to Section
3.311). Appellant never routinely places accord and satisfaction
language on her checks, and therefore she acted in good faith.
41 DTPA AGAINST APPELLEES
FE and HWA/Trustees have cited no case that contradict the
Texas Supreme Court holding in Knight v. Int'l Harvester Credit
Corp., 627 S.W.2d 382, 389 (Tex.1982) and Flenniken v. Longview
Bank & Trust Co., 661 S.W.2d 705, 707 (Tex.1983), which are
directly on point. Also, Weiler, supra is on point as it deals
specifically with a mortgage foreclosure. The Supreme Court makes
it clear that Reule is a consumer for the purpose of D.T.P.A., see
Knight and Flenniken, supra. See also Weiler, supra @160
(wrongful charges against escrow account, unauthorized payments
to lawyer fees against mortgage loan)
APPELLANT HAS NOT WAIVED ANY CLAIMS
The court rejected each and every single one of Appellant’s
jury instruction without explanation or opportunity to cure. Had
appellant’s counsel not been allowed to withdraw, Appellant would
have had any issue properly preserved (although she believes the
MSJ took care of all the issues, and her submission of the jury
instruction preserved errer). She did present arguments on the
Quiet title case, in both her SJ (CR571) and at trial, and the court
42 would not allow her to present not one single jury instruction. She
has preserved all of her SJ arguments, on each of her claims.
PRAYER
Appellant requests that her case be reversed, rendered and/or
remanded to the trial court, and for such other and further relief as
the court deems just and proper.
Dated: January 5, 2015. Respectfully submitted,
/s/Christine E. Reule Christine E. Reule 1831 Sherwood Forest #24 Houston, Texas 77043
By my signature above, I hereby certified that a true and correct copy of this brief has been forwarded to all interested parties.
Word Court: 7,289