ACCEPTED 03-15-00261-CV 6750181 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/1/2015 3:42:02 PM JEFFREY D. KYLE CLERK NO. 03-15-00261-CV
FILED IN In the Third Court of Appeals 3rd COURT OF APPEALS AUSTIN, TEXAS Austin, Texas 9/1/2015 3:42:02 PM JEFFREY D. KYLE Clerk
DAVID YOUNG, APPELLANT
v.
JP MORGAN CHASE BANK, APPELLEE
APPEAL FROM CAUSE NO. D-1-GN-12-000590 126TH DISTRICT COURT OF TRAVIS COUNTY, TEXAS HON. DARLENE BYRNE PRESIDING
APPELLANT’S BRIEF
Stephen Casey Texas Bar No. 24065015 ORAL CASEY LAW OFFICE, P.C. ARGUMENT 595 Round Rock West Drive REQUESTED Suite 102 Round Rock, Texas 78681 Telephone: 512-257-1324 Fax: 512-853-4098 info@caseylawoffice.us
Counsel for Appellant David Young
i STATEMENT REGARDING ORAL ARGUMENT Appellant believes this Court can reverse and remand this case based on the
record. Should the Court desire oral argument, Appellant is ready to participate.
ii IDENTIFICATION OF PARTIES AND COUNSEL
Appellant Trial and Appellate Counsel for Appellant T. David Young (Trial) Mark Cohen 805 W. 10th Street, Suite 100 Austin, TX 78701
(Appellate) Stephen Casey Casey Law Office, P.C. 595 Round Rock West Drive Suite 102 Round Rock, Texas 78681 Phone: 512-257-1324
Appellee Trial and Appellate Counsel for Appellees
JP Morgan Chase Bank (Trial) Scott King Field Kent E. Wymore IV The Field Law Firm, PLLC 5910 Courtyard Drive, Suite 255 Austin, Texas 78759
(Appellate) Marcie L. Schout Quilling, Selander, Lownds, Winslett, & Moser, P.C. 2001 Bryan Street, Suite 1800 Dallas, TX 75201 mschout@qslwm.com
iii TABLE OF CONTENTS
INDEX OF AUTHORITIES ................................................................................ 1
STATEMENT OF THE CASE ............................................................................ 1
ISSUE PRESENTED ............................................................................................ 1
1. Under Texas law, whether time is of the essence is a fact issue. Further, time is not of the essence of a contract unless (1) the contract explicitly states such, or (2) the nature of the contract demands it. With neither condition present below, and the delay involved Chase’s unclean hands, should the trial court’s summary judgment be reversed? .................................................................... 1
STATEMENT OF FACTS .................................................................................... 2
Young is sued under TRCP 736 and makes a counterclaim. ............................... 2 Young and Chase enter into a settlement agreement requiring Chase to do “any and all” reasonable further act to “consummate” the sale. ................................................................................................................. 2
The loan cannot fund on time due to an non-waivable federal law. .................... 3 Chase is sent a request for a new payoff letter to consummate the sale. ....................................................................................................................... 3
Chase refuses to send a new payoff letter in order to consummate the sale. ................................................................................................................. 4
SUMMARY OF THE ARGUMENT ................................................................... 4
STANDARD OF REVIEW ................................................................................... 4
ARGUMENT .......................................................................................................... 5
iv 1. Time is never of the essence in a contract unless it is (1) expressly stated, or (2) the nature of the contract demands it. Here, neither condition existed. ..................................... 5
a. There was no explicit statement that time was of the essence, and the nature of the contract did not require such performance, even though stated. ................................................................................................. 7
b. Nothing in the nature or the purpose of the contract, or the circumstances surrounding it, required the date of August 1 as the date of performance. .................................................................................... 7
2. Chase’s unclean hands should prevent it from reaping a windfall here because it refused to provide a payoff in order for Young to comply with the non-waivable three-day right of rescission. ................................................................... 9
CONCLUSION .................................................................................................... 11
CERTIFICATE OF COMPLIANCE ................................................................ 12
CERTIFICATE OF SERVICE .......................................................................... 12
v INDEX OF AUTHORITIES Cases
Argos Resources, Inc. v. May Petroleum, Inc., 693 S.W.2d 663 (Tex. App.—Dallas 1985, writ ref'd n.r.e.) .......................... 7
Builders Sand, Inc. v. Turtur, 678 S.W.2d 115 (Tex. App.—Houston [14th Dist.] 1984, no writ) ............................................................................................................ 7
Diversicare Gen. Partner, Inc., v. Rubio, 185 S.W.3d 843 (Tex. 2005)............................. 5
Dunnagan v. Watson, 204 S.W.3d 30, 41 (Tex. App.—Fort Worth 2006, Pet. Denied) ........................................................................................ 10
Fox v. O'leary, 2012 Tex. App. Lexis 5714 (Tex. App.—Austin July 10, 2012). ............................................................................................... 10
Ganz v. Lyons Pshp., L.P., 961 F. Supp. 981, 986 (N.D. Tex. 1997) ............................................................................................................... 8
Herbert v. Herbert, 754 S.W.2d 141 (Tex. 1988). .......................................................................... 5
Hing Bo Gum v. Nakamura, 549 P.2d 471 (Haw. 1976) .............................................................................. 6
In Re Francis, 186 S.W.3d 534 (Tex. 2006). ........................................................................ 10
In Re: Theresa Caballero, Relator, 441 S.W.2d 574 (Tex. App.—El Paso 2014, no pet.) ..................................... 8
Laredo Hides Co., Inc. v. H & H Meat Products Co., Inc., 513 S.W.2d 210 (Tex. Civ. App.—Corpus Christi 1974, writ ref'd n.r.e.) ........................................................................................... 6, 7
Lockhart-Hutchens v. Bergstrom, 434 S.W.2d 453 (Tex. Civ. App.—Austin 1968, writ ref'd n.r.e.) ....................................................................................................... 6, 7, 8 1 Meisler v. Smith, 814 F.2d 1075 (5th Cir. Tex. 1997) ................................................................ 6
Seismic & Digital Concepts, Inc. v. Digital Resources Corp., 590 S.W.2d 718 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ) .................................................................................................. 7
Shaw v. Kennedy, Ltd., 879 S.W.2d 240 (Tex. App.—Amarillo 1994, no writ) .................................. 7
Siderius, Inc. v. Wallace Co., 583 S.W.2d 852 (Tex. App.—Tyler, 1979) ................................................ 6, 8
Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) ........................................................................... 5
2 STATEMENT OF THE CASE
Nature of the Case: This suit involves a home equity loan, CR.4-7, that ended in a settlement, CR.220-227 and, inter al., an alleged breach of contract claim arising from the settlement agreement. CR.97-99.
Course of Proceedings: The parties settled out the case. A dispute arose during the execution of the signed settlement agreement. The trial court awarded summary judgment on an alleged breach of that agreement. CR.350-352.
Trial Court’s Disposition: The district court signed a final order on February 5, 2015. CR.350-52. Appellant timely filed a motion for new trial. CR.353- 61. The trial court requested subsequent briefing on the motion for new trial. CR.362- 76. The trial court, after briefing, denied the motion. CR.378. Appellant timely filed a notice of appeal. CR.380-81.
ISSUE PRESENTED
1. Under Texas law, whether time is of the essence is a fact issue. Further, time is not of the essence of a contract unless (1) the contract explicitly states such, or (2) the nature of the contract demands it. With neither condition present below, and the delay involved Chase’s unclean hands, should the trial court’s summary judgment be reversed?
1 STATEMENT OF FACTS
Young is sued under TRCP 736 and makes a counterclaim.
On December 19, 2000, Young made a home equity loan with Long Beach
Mortgage Company. CR.4. After an alleged default, CR.5, Chase attempted to
foreclose via TRCP 736. CR.4-5. Young counterclaimed for declaratory relief and
raised defenses of limitations and res judicata. CR.19-20. The property is Young’s
homestead. CR.322.
Young and Chase enter into a settlement agreement requiring Chase to do “any and all” reasonable further act to “consummate” the sale.
During the course of the litigation, Young and Chase entered into a
settlement agreement whereby Young would procure a refinance of the mortgage
lien and pay off the lien. CR.32-51. This was April 9, 2014. Id. The settlement
agreement requires both parties to take all actions “reasonably necessary” that may
be needed to “consummate” the transaction, even actions beyond those specified in
the agreement. CR.35. The section reads (with bold title in original):
12. Further Acts. In addition to the acts recited in this Agreement, the parties agree to perform, or cause to be performed on the date of this Agreement, or thereafter, any and all such further acts as may be reasonably necessary to consummate the transactions contemplated in this Agreement. Id.
2 The loan cannot fund due to a non-waivable federal law.
As part of that agreement, the parties negotiated a date of August 1, 2014,
for the date of payoff. CR.33. Young was unable to make that date. On July 29,
2014, prior to the deadline, Young requested a payoff through August 31, 2014.
CR.54. Young’s realtor, Terie Bradford, whose affidavit was submitted in response
to Chase’s summary judgment motion, explains the delay. CR.320-21. She
identifies that her first appraisal for the property for the loan review process
differed greatly from her second appraisal. CR.320. The lower second appraisal
required a delay in loan processing. Id. Because federal law mandated a non-
waivable three-day right of rescission, an updated payoff was requested from
Chase. CR.320. She was ready to close on July 31, 2014, but due to the federal
mandate the loan would not fund before the right of rescission expired on August
4, 2014. Id. The extension needed was only five days. Id. This was pleaded before
the Court in Young’s Third Amended Petition. CR.160.
Chase is sent a request for a new payoff letter to consummate the sale.
Chase was notified of the problem on two occasions. CR.251-52. The first
was prior to the deadline. CR.251 (July 29 email). The second was August 5,
2015. CR.252.
3 Chase refuses to send a new payoff letter in order to consummate the sale.
On August 5, 2014, after the deadline, Chase responded. CR.252. It refused
to send a payoff letter. Id. It also refused to grant a brief extension. CR.252.
Young’s attorney, in an email, attempted to point out to Chase that it was acting
inequitably with unclean hands by refusing to extend the deadline. CR.260.
SUMMARY OF THE ARGUMENT The lower court failed to properly apply Texas law regarding construction of
the settlement agreement. Time is never of the essence unless explicitly stated or
the nature of the agreement demands it. Neither condition was present here.
Further, Chase’s own failure to provide a payoff when requested contributed
any alleged breach; thus, they come to this Court with unclean hands and should
not be awarded a windfall. By refusing to conduct a further act that would permit
consummating the transaction, and because time was not of the essence, Chase
should not profit.
STANDARD OF REVIEW
The review of summary judgment is de novo. See Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A reviewing court on summary judgment
does not presume the judgment is correct. See Diversicare Gen. Partner, Inc., v. Rubio,
185 S.W.3d 843, 846 (Tex. 2005). The court examines the “entire record in the
4 light most favorable to the nonmovant, indulging every reasonable inference and
resolving any doubts against the motion.” City of Keller v. Wilson, 168 S.W.3d 802,
824 (Tex. 2005).
ARGUMENT
The lower court ignored the factual nature the issue presented demands (i.e.,
inappropriate for summary judgment), failed to properly apply Texas law
regarding construction of the settlement agreement, and permitted Chase’s unclean
hands to bring it a windfall. These points will be addressed in order.
1. Time is never of the essence in a contract unless it is (1) expressly stated, or (2) the nature of the contract demands it. Here, neither condition existed. “It is settled that time is not the essence” in a land conveyance contract “in
which the purchase money is to be paid at a future day.” Lockhart-Hutchens v.
Bergstrom, 434 S.W.2d 453, 456 (Tex. Civ. App.—Austin 1968, writ ref’s n.r.e.).
This Court’s well-reasoned opinion in Lockhart-Hutchens has been cited by the Tyler
Court of Appeals in 1979, the federal Fifth Circuit Court of Appeals in 1997, and
even by the Hawaii Supreme Court in 1976. See Siderius, Inc. v. Wallace Co., 583
S.W.2d 852, 864 (Tex. App.—Tyler, 1979); see also Meisler v. Smith, 814 F.2d 1075,
1081 (5th Cir. Tex. 1997); Hing Bo Gum v. Nakamura, 549 P.2d 471, 475 (Haw.
1976).
Time is not of the essence of a contract unless the contract explicitly makes it
5 so or the contract is of such a nature or purpose that it indicates the parties'
intention that they must perform the contract at or within the time specified. Laredo
Hides Co., Inc. v. H & H Meat Products Co., Inc., 513 S.W.2d 210, 216 (Tex. Civ.
App.—Corpus Christi 1974, writ ref'd n.r.e.); Siderius, Inc., 583 S.W.2d at 863; see
also Shaw v. Kennedy, Ltd., 879 S.W.2d 240, 246 (Tex. App.—Amarillo 1994, no writ)
(holding that time of performance is not a material term of an agreement).
Texas courts hold that even designation of a particular date for performance
does not, of itself, indicate time is of the essence. Seismic & Digital Concepts, Inc. v.
Digital Resources Corp., 590 S.W.2d 718, 720 (Tex. Civ. App.—Houston [1st Dist.]
1979, no writ); Builders Sand, Inc. v. Turtur, 678 S.W.2d 115, 118 (Tex. App.—
Houston [14th Dist.] 1984, no writ); Argos Resources, Inc. v. May Petroleum, Inc., 693
S.W.2d 663, 664-65 (Tex. App.—Dallas 1985, writ ref'd n.r.e.).
“[A]ny intention to make time of the essence must be clearly
manifested in the contract.” Shaw, 879 S.W.2d at 246 (emphasis added). “The
fact that [a] contract states a date for performance does not, of itself, mean that
time is of the essence.” Argos Res., Inc., 693 S.W.2d at 664-65 (quoting Laredo Hides
Co., Inc., 513 S.W.2d at 217). In order to make time of the essence, a contract must
so provide by express stipulation or there must be something in the nature of the
subject matter or connected with the purpose of the contract and the circumstances
surrounding it which makes it apparent that the parties intended that the contract
be performed at or within the time specified. Laredo Hides Co., Inc., 513 S.W.2d at 6 216.
In addition, when a contract does not expressly provide time is of the essence
as here, the issue of whether time was of the essence is a fact issue. Lockhart-Hutchens,
434 S.W.2d at 456 (collecting cases); Siderius, Inc, 583 S.W.2d at 863; In re: Theresa
Caballero, Relator, 441 S.W.2d 574 (Tex. App.—EI Paso 2014, no pet.).
This case should not have been decided on summary judgment. Accord Ganz
v. Lyons Pshp., L.P., 961 F. Supp. 981, 986 (N.D. Tex. 1997) (citing to Lockhart-
Hutchens, “[I]t is a question for the jury unless the contract expressly makes
time of the essence, or the subject matter of the contract is such that the court may
take judicial notice of the fact that the parties obviously intended for time to be of
the essence.”) (emphasis added).
At worst, this Court should reverse this case simply upon the standard of
review.
a. There was no explicit statement that time was of the essence, and the nature of the contract did not require such performance, even though stated. The contract, in its entirety, is listed in the Clerk’s record. See CR.220-27. At
no point does it mention that time is of the essence. This case should be reversed
on summary judgment as a matter of law construed on review against Chase, the
Appellee, per the standard of review.
b. Nothing in the nature or the purpose of the contract, or the circumstances surrounding it, required the date of August 1 as the date of performance. 7 First, the contract was not “in nature” or “in purpose” time dependent. It
was a settlement agreement. CR.220-27. It was made between private parties. No
third party’s dependence on some specified action of the signatories is mentioned.
The agreement facilitated a home belonging to Young to be kept by Young with
payments still going to Chase. Id. There is nothing inherent about settlement
agreements (i.e., in their nature) that demanded performance by August 1. If there
is any doubt, it resolves against Chase, the Appellee (and movant below), in
accordance with the standard of review.
Second, the circumstances of the agreement itself contemplated that
dismissal documents might be filed at an indefinite time in the future. “Within
fourteen (14) days of fully executing this Agreement, the Lawsuit will be abated
until August 1, 2014, or until dismissal documents are filed with the
Court.” CR.221 at ¶ 1.2 (emphasis added). This plainly could have taken much
longer, even until the end of August or beyond, to file dismissal documents. No
time period is specified. If there is any doubt, it resolves against Chase, the
Appellee (and movant below), in accordance with the standard of review.
Further, Section 1.2.1, even following that, contemplates the potential of
some delay as the parties exchange dismissal documents which, once signed, were
to be sent “to the designated title company to hold in trust until payment of the
Settlement Funds.” The circumstances of the agreement thus do not contemplate a
time frame that would prohibit a few days on the performance of the refinance. If
8 there is any doubt, it resolves against Chase, the Appellee (and movant below), in
accordance with the standard of review.
2. Chase’s unclean hands should prevent it from reaping a windfall here because it refused to provide a payoff in order for Young to comply with the non-waivable three-day right of rescission.
Specific performance, the remedy awarded Chase, is an equitable remedy.
See BLACK’S LAW DICTIONARY at 1435 (8th ed.). In order to invoke an equitable
remedy, one must come to the court with clean hands (i.e., the “clean hands”
doctrine. “The clean hands doctrine requires that one who seeks equity, does
equity. Equitable relief is not warranted when the plaintiff has engaged in unlawful
or inequitable conduct with regard to the issue in dispute.” In re Francis, 186 S.W.3d
534, 551 (Tex. 2006). To invoke the clean hands doctrine, the party asserting the
doctrine must be seriously harmed which cannot be corrected without asserting the
doctrine. See Dunnagan v. Watson, 204 S.W.3d 30, 41 (Tex. App.—Fort Worth 2006,
pet. denied).
As this Court stated in Fox v. O'Leary, “[t]he doctrine of "unclean hands" bars
equitable relief sought by "one whose conduct in connection with the same matter
or transaction has been unconscientious, unjust, or marked by a want of good faith,
or one who has violated the principles of equity and righteous dealing.” 2012 Tex.
App. LEXIS 5714, *15-16 (Tex. App.—Austin July 10, 2012).
9 Here, Young’s complaint is Chase, by its inaction, failed to send a payoff
letter when requested because of an unwaivable 3-day right of rescission period
imposed by federal law. CR.313-19 (Young’s MSJ response); CR.320-21 (affidavit
of loan officer that it was not customary for Chase to refuse to send a new payoff
letter); CR.322-23 (affidavit of Young that unwaivable federal right of rescission
prevented closing until shortly after August 1).
Chase’s reply misdirected the trial court in discussing option periods,
inapplicable here. CR.336-37. Their motion then attempts to reference a case
where the deadline had a cure period (not like this contract); again, a misdirection.
CR.337. Next, Chase references a third case in which the parties made an
extension on a performance deadline; again, a misdirection. CR.339. This case did
not have an option, did not have a cure period, and there was no extension; in fact,
had there been a cure period or an extension, Young would have been able to fund
the loan.
Chase then attempts to excuse its unclean hands. Unfortunately, the
language of the agreement serves as Chase’s own indictment:
12. Further Acts. In addition to the acts recited in this Agreement, the parties agree to perform, or cause to be performed on the date of this Agreement, or thereafter, any and all such further acts as may be reasonably necessary to consummate the transactions contemplated in this Agreement.
CR.223 (italics added)
10 This section, while including all of the other responsibilities of the
agreement, on its face contemplates that the parties “agree to perform”—
disjunctive from the following “or cause to be performed . . . .”—anything that
would be “reasonably necessary” to accomplish the settlement. The payoff date
was only going to be extended by three days.
Would “any and all such further acts” that “may be reasonably necessary”
that Chase “agree[d] to perform” include merely sending a payoff letter? Yes!
Is it inequitable for Chase not to send it? Yes.
Is this a hardship for Young? Yes.
This house is Young’s home. It’s a home equity lien. Young must now face
being without a home, and subsequent eviction. Chase has unclean hands and
should not be permitted a windfall, the house, simply for failing to send a letter that
would permit complying with federal law. If there is any doubt, it resolves against
Chase, the Appellee (and movant below), in accordance with the standard of
review.
CONCLUSION
For the foregoing reasons, Appellant asks the Court to:
Ø Reverse this case and render judgment in favor of Young because time was not of the essence;
Ø Reverse any award of attorney’s fees;
Ø Award Young any and all relief to which he is entitled in law or
11 equity.
Respectfully submitted,
/s/ Stephen Casey
Stephen Casey Texas Bar No. 24065015
595 Round Rock West Drive, Suite 102 Round Rock, Texas 78681 Telephone: 512-257-1324 Fax: 512-853-4098 info@caseylawoffice.us
CERTIFICATE OF COMPLIANCE
The preceding brief contains 2,431 words within the sections identified under Tex. R. App. P. 9.4, typed upon Microsoft Word for Mac 2011, Baskerville 14 point font.
/s/ Stephen Casey Stephen Casey
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing brief and
accompanying Appendix has been served on all parties to the trial court judgment
on Thursday, August 27, 2015, efile and/or facsimile transmission:
Marcie L. Schout Quilling, Selander, Lownds, Winslett, & Moser, P.C. 2001 Bryan Street, Suite 1800 Dallas, TX 75201 /s/ Stephen Casey mschout@qslwm.com Stephen Casey
12 NO. 03-15-00261-CV
In the Third Court of Appeals Austin, Texas
DAVID YOUNG, APPELLANT v.
JP MORGAN CHASE BANK, APPELLEE
APPEAL FROM CAUSE NO. D-1-GN-12-000590 126TH DISTRICT COURT OF TRAVIS COUNTY, TEXAS HON. DARLENE BYRNE PRESIDING
APPELLANT’S APPENDIX
Stephen Casey Texas Bar No. 24065015
CASEY LAW OFFICE, P.C. 595 Round Rock West Drive Suite 102 Round Rock, Texas 78681 Telephone: 512-257-1324 Fax: 512-853-4098 info@caseylawoffice.us
Counsel for Appellant David Young
i TABLE OF CONTENTS
1. Copy of final judgment ................................................................................. Tab A 2. Copy of Settlement Agreement .................................................................... Tab B
ii TAB A DC BK 15037 PG293
Filed in The District Court of Travis County, Texas
FEB 05 2015 CAUSE NO. D-1-GN-12-000590 At f) '.-8/ I.£.M. Velva L. Price, District Clerk JPMORGAN CHASE BANK N.A. § IN THE DISTRICT COURT Plaintiff, § § v. § 200th JUDICIAL DISTRICT § THOMAS D. YOUNG A/KIA T. § DAVID YOUNG, A SINGLE MAN, § Defendant. § TRAVIS COUNTY, TEXAS
AMENDED ORDER GRANTING PLAINTIFF'S TRADITIONAL MOTION FOR SUMMARY JUDGMENT
Before the Court is the Traditional Motion for Summary Judgment ("Motion") filed by
JPMorgan Chase Bank, N.A., individually and as mortgage servicer for Deutsche Bank National
Trust Company f/k/a Bankers Trust Company of California, N.A. as Trustee for Long Beach
Mortgage Loan Trust 2001-1, ("Plaintiff'). Based on the Motion-including supporting briefs
and exhibits, any response or reply, the record, this Court's prior opinions and rulings, and the
applicable law, the Court finds the Motion should be in all respects GRANTED.
It is hereby ORDERED, ADJUDGED, AND DECREED that Plaintiff is granted
judgment against Thomas D. Young a/k/a T. David Young (the "Borrower") for judicial
foreclosure as contemplated by the unambiguous terms of the Compromise Settlement
Agreement and Release of Claims ("Settlement Agreement") as follows:
(a) Plaintiff is hereby granted specific performance and Borrower is ORDERED to
sign and return the Agreed Judgment incorporated as Exhibit C to the Settlement
Agreement;
(b) Plaintiff is hereby GRANTED in rem judgment against Borrower for foreclosure
as specified in the Texas Home Equity Security Instrument ("Security
AMENDED ORDER PAGE 1
350 DC BK15037 PG294
Instrument"), which encumbers property commonly known as 10336 West
Darleen Drive, Leander, Texas and Settlement Agreement;
(c) the Security Instrument is hereby foreclosed and the Property shall be sold by
Sheriff or Constable pursuant to Texas Rule of Civil Procedure 309;
(d) the proceeds of the sale shall be applied in payment of the amounts due to
Plaintiff;
(e) Plaintiff, or its assigns, are permitted to become a purchaser at the foreclosure
sale; and
(f) the Borrower and all persons claiming under him, after foreclosure of the Security
Instrument, whether lien claimants, judgment creditors, claimants arising under
junior deeds of trust, purchasers, encumbrances or otherwise, are hereby barred
and foreclosed from all rights, claims, interest or equity of redemption in the
Property and every part of the Property;
(g) Plaintiff is hereby awarded reasonable attorneys' fees against the Borrower;
(h) Plaintiff is hereby awarded taxable court costs and disbursements herein against
the Borrower; and
(i) Plaintiff is hereby awarded summary judgment on the Borrower's counterclaim
for declaratory judgment, and that Borrower take nothing from this lawsuit.
It is further ORDERED, ADJUDGED, AND DECREED that Plaintiff is hereby granted
in rem judgment against the JonKer, David Newman, and Equity Liaison Company, LLC (the
"Purported Junior Lienholders") as follows:
(a) Plaintiff has a valid and superior lien on the Property as evidenced by the Security
Instrument;
AMENDED ORDER PAGE2
351 DC BK15037 PG295
(b) the Deed of Trust is hereby foreclosed pursuant to TEXAS RULE OF CIVIL
PROCEDURE 309 and judgment be made for the sale of the Property according to
law by the Sheriff; and
(c) the Purported Junior Lienholders, and all persons claiming under them, after
foreclosure of the Security Instrument, whether lien claimants, judgment
creditors, claimants arising under junior deeds of trust, purchasers, encumbrances
or otherwise, are hereby barred and foreclosed from all rights, claims, interest or
equity of redemption in the Property and every part of the Property.
All relief not expressly granted in this Order is hereby DENIED. This Order constitutes a
final judgment and is immediately appealable.
SIGNED thisQ__ day of ±=e. b '2015.
Agreed to and entry requested by:
Is/ Rachel Lee Hvtken WM. LANCE LEWIS Texas Bar No. 12314560 RACHEL LEE HYTKEN Texas BarNo. 24072163 QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C. 2001 Bryan Street, Suite 1800 Dallas, Texas 75201 (214) 871-2100 (Phone) (214) 871-2111 (Fax)
ATTORNEYS FOR PLAINTIFF
AMENDED ORDER PAGE3
352 TAB B 8/13/201410:19:51 AM Amalia Rodriguez-Mendoza District Clerk Travis County D-1-GN-12-000590
COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
This Compromise Settlement Agreement and Release of Claims (the "Agreement") is made between 'fhomas D. Young afk!a T. David Young ("Young") and JPMorgan Chase Bank, N.A. ("JPMC"), individually and as attomey-in~fact for Deutsche Bank National Trust Company, formerly known as Bankers Trust Company of California, N.A. as Trustee for Long Beach Mortgage Loan Trust 2001- I .
WHEREAS, on or about December 19, 2000, Young executed a Texas Home Equity Note (the "Note") payable to Long Beach Mortgage Company in the original principal amount of $337,500.00;
WHEREAS, on or about December 19, 2000, simultaneously with the execution of the Note, Young executed a Texas Home Equity Security lnstrument ("Security Instrument") (collectively the "Note" and "Security Instrument" comprise the "Loan") which granted a Hen interest (the "Deutsche Bank Lien") on property located at 10336 West Darleen Drive, Leander, Texas 78641, more particularly described as:
Lot 52, Trails End, Lake Travis Subdivision, a Subdivision in Travis County, Texas, According to the Map or Plat of Record in Volume 4, Page 331, Plat Records of Travis County, Texas (the "Property");
WHEREAS, Long Beach Mortgage Company executed an Assignment of Lien to Deutsche Bank National Trust Company f!k/a Bankers Trust Company of California. N.A as Trustee for Long Beach Mortgage Loan Tn1st 2001-1 ("Deutsche Bank");
WHEREAS, on or about February 29, 2012, Cause No. D-lHGN-12-000590 was filed in the 200th District Court of Travis County, Texas against Young to obtain a judicial order of sale against the Property, and Young claimed the foreclosure was barred by the Statute of Limitations and that the Deed of Trust was unenforceable pursuant to Article XVI Section 50 of the Texas Constitution (the "Lawsuit");
WHEREAS, the parties now wish to avoid the risk,. uncertainty, and cost of litigation, and desire to compromise and settle all claims and causes of action which the parties hold or may hold, upon the terms and provisions set forth below;
NOW, THEREFORE, in consideration of the above~stated premises, the mutual promises and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and as materia! conditions hereof: the parties agree to the following terms and conditions tor settlement of these matters.
CONFIDENTIAL SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS PAGE 1 OF8
32 1. Consideration and Release.
1.1 Young agrees to sell or obtain a 3rd party take..out refinance of the indebtedness secured by the Deutsche Bank Lien on or before August i, 2014, and Deutsche Bank agrees to accept a short payoff of the Loan in the amount of $220,000 on or before August l, 2014 ("Settlement Funds"). Specifically, Young has designated the title company Netco, Inc., 7719 Wood Hollow Drive Ste. 157, Austin, TX 78731 ("Title Company") and escrow officer Dewayne Naumann (''Escrow Agent") to close the sale or refinance of the Property. Upon closing of the Property sale or refinance, Young agrees that the Escrow Agent shaH promptly distribute $220,000 of the sale or 3rd party take..out refinance proceeds {"Settlement Funds") to Deutsche Bank c/o Wm. Lance Lewis, QSLWM, P.C., 2001 Bryan Street, Suite 1800, Dallas, Texas 75201.
LLl Deutsche Bank will deliver its closing instructions in the form labeled as Exhibit A (the ''Closing Instructions") to Escrow Agent. As indicated in the Closing Instmctions, Deutsche Bank will execute and deliver a fhH release of the Deutsche Bank Lien to the Escrow Agent at 7719 Wood Hollow Drive Ste. 157, Austin, TX 78731 within fourteen (14) days of receipt of the Settlement Funds. The Escrow Agent win record a copy of the release of lien in the official real property records of Travis County, Texa.->.
L2 Within fourteen (14) days of fully executing this Agreement, the Lawsuit \ViU be abated until August 1, 2014, or until djsmissal documents are filed with the Court.
1.2.1 Upon and conditioned on receipt of the Settlement Funds in accordance with Paragraph 1.1, the Lawsuit will be dismissed with prejudice, with each party bearing its own costs. Counsel for Deutsche Bank and JPMC will return the signed dismissal documents, attached collectively as Exhibit B, to the designated title company to hold in trust until payment of the Settlement Funds. Counsel for Young will tile the dismissal documents with the Court and send counsel for Deutsche Bank and JPMC a conformed copy of the order.
1.2.2 If Young fails to tender the Settlement Funds in accordance with Paragraph 1.1, Young agrees that Deutsche Bank shaH have judgment for foreclosure. Young, through and under his attorney, will sign and return a copy of a judgment for foreclosure under the Texas Home Equity Security Instrument in the form attached as Exhibit C no later than August 8, 2014 to JPMC, c/o Wm. Lance Lewis, QSLWM, P.C., 2001 Bryan Street, Suite 1800, Dallas, Texas 75201.
CONFIDENTIAL SETTLEl\'lliNT AGREE.!MENT AND RELEASE OF CLAIMS PAGE 2 OF8
33 1.3 Young shall maintain his current hazard insurance policy, or an equivalent policy, and he is otherwise responsible for keeping the improvements now existing or hereafter erected on the Property insured against loss by fire, flood or any other hazards.
1.4 For and in consideration of the promises as provided in this Agreement and other good and valuable consideration, Young hereby forever and completely releases, acquits, and discharges JPMC and Deutsche Bank, as weU as their respective predecessors, successors, and assigns, past and present officers, directors, agents, employee, subsidiaries, affiliates, and attorneys-including but not limited to Quilling, Selander, Lownds, Winslett and Moser, P.C., Wm. Lance Lewis and Rachel Lee Hytken, from any and aU claims, counterclaims, defenses, causes of action, liabilities, interest, costs, expenses, attorneys' tees, or other damages of any kind or character, whether existing by statute, or at common law, accrued or unaccrued, direct or contingent, known or unknown, arising out of, or in any way asserted in, or which might have been asserted in, or which relates to, directly or indirectly the Loan, the Lien, the Property, or any other facts that were alleged or could have been alleged by Young in the Lawsuit.
1" Provided Deutsche Bank receives the Settlement Funds on or before August l, 2014, for and in consideration ofthe aforementioned promises, Young's release of Deutsche Bank and JPMC, and other good and valuable consideration, JPMC and Deutsche Bank forever and completely release, acquit, and discharge Young from any claims asserted in the Lawsuit. If, however, Deutsche Bank does not receive the Settlement Funds on or before August I, 2014, JPMC and Deutsche Bank will not release their claims asserted in the Lay,'suit, and they shall have judgment for judicial foreclosure.
I ,6 The parties represent and warrant they are the sole owners and holders of the claims released herein and that they have not sold, assigned, conveyed, or in any way transferred any of their rights in and to any of such claims and causes of action to any third party.
l. 7 Both Parties hereby acknowledge the sufficiency of the consideration provided in this Agreement
2. Compromise and Intention of Parties. 'The Parties agree, as among them, that this is a c,ompromise, resolution, and settlement of disputed claims and that such compromise, resolution, satisfaction, and settlement shall not be taken as an admission of liability, but rather, such liability has been expressly denied by the parties. No promise or inducement has been offered except as set fbrth herein. This Agreement is executed without reliance upon any oral, written,
CONFlDEN11AL SETTLEMENT AGREEMENT A.'-10 REW.<\SE OF CLAIMS PAGE30F8
34 express or implied representations, statements, promises, warranties, or other inducement of any nature or sort made by any person or party hereto, other than as is expressly set forth herein.
3. Binding Effect. This Agreement shaH inure to the benefit of, and shaH be binding upon, the undersigned Parties and their respective heirs, executors, administrators, trustees, and successors.
4. Governing Law. This Agreement shaH be governed by and construed in accordance with the laws ofthe State ofTe.xas.
5. Voluntary Agreement Each of the parties acknowledges that this A&rreement has been executed freely and voluntarily, without economic compulsion, and with full knowledge of its legal significance and consequences.
6. Severability. This Agreement is intended to be severable. [f any term, covenant, condition or provision hereof is illegal, invalid, or unenforceable for any reason whatsoever, such iHegality, invalidity, or unenforceability shall not affect the legality, validity, or enforceability of the remaining parts ofthis Agreement
7. Counterparts. This Agreement may be executed in counterparts or with detachable signature pages and shall constitute one agreement, binding upon all the parties as if all the parties signed the same document.
8. Headings. The headings used in this Agreement are intended solely for the convenience of reference, and should not in any manner amplifY, limit, modify, or otherNise be used in the interpretation of any of the provisions of the Agreement
9. Authority. Each person(s) executing this Agreement as an agent or in a representative capacity warrants that he or she is duly authorized to do so.
l 0. Entire Agreement. This Agreement embodies, merges, and integrates aU prior and current agreements and understandings ofthe Parties with regard to the Lawsuit, and may not be clarified, modified, changed, or amended except in writing signed by each and every one of the signatories hereto, or their authorized representatives.
11. Survival. All representations and warranties contained herein shall survive the execution and delivery of this Agreernent, and the execution and delivery of any other document or instrument referred to herein.
12. Further Acts. In addition to the acts recited in this Agreement, the parties agree to perform, or cause to be performed on the date of this Agreement, or thereafter, any and ail such further acts as ma.Y be reasonably necessary to consummate the transactions contemplated in this Agreement.
CONFIDENTIAL SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS PAGE40F8
35 lJ. Not evidence. This Agreement shall not be used as evidence in any proceeding other than one to enforce this Agreement, or one seeking damages arising from a breach of this Agreement or any administrative or legal action by TI1e Internal revenue Service or other agency ofthe United States
14. Tax Liability. Young acknowledges that neither JPMC nor Deutsche Bank provided representations or advice to him regarding the tax consequences of this Agreement. Young, although denying there are any such tax liabilities, further agrees he will be responsible for any tax liabilities associated with his entry into this Agreement if any should be due.
THE REMAINDER OF TfiiS PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW
CONF!DEJ\n1AL SFlTLEME!'.'T AGREE!vll:-xf Ai'-ID RELEASE OF CLAIMS PAGE50F8
36 STATE OF TEXAS § § COUNTYOF Tfl/ta:S §
BEFORE .!\ffi, the undersigned authority, on this day personally appeared THOMAS D. YOUNG AIK/A T. DAVID YOUNG known to me to be the individual whose name is subscribed above, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed and in the capacity therein stated.
9fl,_ dayof
-----'' 2014.
Jaf!MI)u Commission &phs 12·21-2017
Commission Expires:
CONfiDENTIAL SeTTLEMENT AGREEMENT AND REU1ASE OF CLAIMS PAGE60F8
37 JPMorgan Chase Bank, N.A., as attorney~in-fact for Deutsche Bank National Trust Company, formerly known as Bankers Trust Company of California, N.A. a<> Trustee for Long Beach Mortgage Loan Trust 2001-1
STATE § § COUNTY §
BEFORE ME, the undersigned, a Notary Public in and for said County and State, on this day personaHy appeared :rse~ "":::.£ $!', 3\\, :"X2..s -~--' in his;fJ~ieapacity as authorized agent for JPMorgan Chase Bank, N.A., as attorney-in-fact for Deutsche Bank National Trust Company, formerly known as Bankers Trust Company of California, N.A. as Trustee tor Long Beach Mortgage Loan Trust 2001-1, known to me to be the p<."fson whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said entity.
Notary p~ . nand For Sa~ Cmmcy'andState
(Seal) \.. E4rerna Davis '\... .,__,,,.,.~~~-/·
My commission expires:
JAN 23 2018
CONFIDENTIAL SETTl..EMEN! AGREEMENT AND RELEASE Of CLAIMS PAGE70f8
38 JPMorgan Chase Bank, N.A.
STATE OF
BEFORE ME, the:. ers1gned, a N Public in and for said County and State, on this day personally appeared -t:1:t€ , '.~::J~)f'J,E:S _, in his@capacity as authorized agent for JPMorgan Chase Bank, N .A. known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she executed the same tor the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said entity.
GIVEN under my hand and seal o(offtee'th1S
(Seal)
My commission expires:
JAN 23 Z018
CONFIDENTIAL SRT11.EMENT AGREEMENT AND RELEASE OF CLAIMS PAGE80F8