Nemer Massaad v. Wells Fargo Bank National Association as Trustee for Option One Mortgage Loan Trust 2006-3, Asset Backed Certificates, Series 2006-3

ACCEPTED 03-14-00202-CV 4572670 THIRD COURT OF APPEALS April 15, 2015 AUSTIN, TEXAS 3/19/2015 6:30:28 PM JEFFREY D. KYLE CLERK

NO. 03-14-00202-CV RECEIVED IN 3rd COURT OF APPEALS IN1HECOURTOF APPEALS AUSTIN, TEXAS 3/19/2015 6:30:28 PM 1HE THIRD DISTRICT OF TEXAS JEFFREY D. KYLE DALLAS TEXAS Clerk

NEMER MASSAAD, and all other OCCUPANTS Appellant

v. WELLS FARGO BANK NATIONAL ASSOCIATION AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST 2006-3, ASSET BACKED CERTIFICATES, SERIES 2006-3 Appellee.

Appeal from the County Court at Law Number One Travis County, Texas Trial Court Case No. C-1-CV-14-000401 Hon. Joe Carroll, presiding

Oral Argument Requested

MOTION FOR REHEARING BRIEF FOR APPELLANT

Identity of the Parties

Appellant/Defendant NEMER MASSAAD

Counsel for Appellant/Defendant

James Minerve State Bar No. 24008692 115 Saddle Blanket Trail Buda, Texas 78610 (21 0) 336-5867 (888) 230-6397 (Fax) (Appellate, Post-trial, and Appellate)

Appellee/Plaintiff WELLS FARGO BANK NATIONAL ASSOCIATION AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST 2006-3,ASSET BACKED CERTIFICATES, SERIES 2006-3

Counsel for Appellee/Plaintiff

Mackie WolfZientz & Mann, P.C. Mark D. Cronenwett State Bar No. 00787303 Parkway Office Center, Ste 900 14160 North Dallas Parkway Dallas, Texas 75254 (214) 635-2650 (888) 230-6397 (Fax) (Appellate, Post-trial, and Appellate)

Table of Contents

Identity of Parties and Counsel ........................................... 2 Table of Authorities .................................................. 4-5 Glossary of Terms ..................................................... 6 Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ 8 Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Statement of Facts .................................................... 10 Summary of the Argument .............................................. 11 Argument ........................................................... 13 The Puentes and Crawford Holdings . . . . . . . . ......................... 13 Puentes v. Fannie Mae Case Summary ................................ 13 Federal Home Loan Mortgage Corp. v. Crawford Case Summary ......... 14 Legal Injury Rule ................................................ 18 Continuing Tor Rule ............................................... 22 Prayer ............................................................. 23 Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................... 25 Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . ................... 26 Appendix ............................................................. 27

Table of Authorities Cases

Puentes v. Fannie Mae. 350 S.W.3d 732. 734-35 (Tex. App. - El Paso 2011, Pet. Dism'd) ... 11, 13, 14, 18 Federal Home Loan Mortf!af!e Corv. v. Crawford, Cause No. 14-13-0010-CV. Pg. 1 (Tex. APP.- Houston f14th Dist.l Oct. 9. 20141 ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. 14. 15 Rice v. Pinnev. 51 S.W.3d 705:2001 Tex. Ann. LEXIS 1831 ......................................................... 17 Kennedv v. Hif!hland Hills Avartments. 905 S.W.2d 325,326 (Tex.App.-Dallas 1995, no writ) ....................... 17 Johnson v. Fellowshin Bantist Church 627 S.W.2d 203,204 (Tex.App.-Corpus Christi 1981, no writ) .............................. 17 Fandev v. Lee. 880 S.W.2d 164. 168 (Tex.App.-El Paso 1994, writ denied) ................................... 17 Cuellar v. Martinez, 625 S.W.2d 3. 5 (Tex.Civ.Ann.-San Antonio 1981, no writ) .......................... 17 Johnson v. Hitzhland Hills Drive Avartments. 552 S.W.2d 493. 495 (Tex.Civ.Ann.-Dallas 1977). writ refd n.r.e. ner curiam. 568 S.W.2d 661 :(Tex.1978) ............................................. 17 Brown v. Henderson. 941 S.W.2d 190 (Ann. 13 Dist.. 1996) .................................. 16 Houtex Readv Mix Concrete & Materials v. Eaele Const. & Environment Services. LP 226 S.W.3d 514 (Ann. 1 Dist. 2006) ................................... 16 Amstadt v. US. Brass Corv.. 919 S.W.2d 644, 652 (Tex. 1996) ..................................... 16 Lovez v. Sulak. 76 S.W.3d 597, 605 (Tex. App.-Corpus Christi 2002, no pet.) ............... 18 Ward v. Malone. 115 S.W.3d 267. 270 (Tex. Ann.-Corpus Christi 2003, pet. Denied) .......... 18 Pusteiovskv v. Ravid American Corv.. 35 S.W.3d 643 Sunp. 2000) .......................................... 19 Childs v. Haussecker. 974 S.W.2d 31 (Sunn. 1998. rehearing overruled) ........................ 19 Mitchell Enerf!V Corv. v. Bartlett. 958 S.W.2d 430 (Ann. 2 Dist. 1997. rehearing overruled. review denied. rehearing ofnetition for review overruled ................................... 19, 22 Rogers v. Ricane Entemrises. Inc .. (Ann. 7 Dist. 1996) 930 S.W.2d 157 ................................ 19, 22 Morris v. Enron Oil & Gas Co ... 948 S.W.2d 858 (App. 4 Dist. 1997) ................................... 19

Sullivan v. Bickel & Brewer.. 943 S.W.2d 477 (Ann. 5 Dist. 1995. writ denied. rehearin2: of writ of error overruled . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Arauette v. Hancock. 656 S.W.2d 627, 629 (Tex. App.- San Antonio 1983, writ refd n.r.e) ........ 22 Roczers 162 S.W.3d at 290) ................................................ 22 Murrav v. San Jacinto AQencv. Inc .. 800 S.W.2d 826, 828 (Tex. 1990) ..................................... .11 S. V. v. R. V., 933 S.W.2d 1, 4 (Tex.1996) ............................................................ 12 Doe v. Catholic Diocese ofEl Paso, 362 S.W.3d 707, 716 (Tex.App.-El Paso 2011, no pet.) ...................... 12 Robinson v. Weaver, 550 S.W.2d 18. 19 (Tex.l977) ........................................................... 12 Two Pesos. Inc. v. GulfIns. Co .. 901 S.W.2d 495.500 (Tex. Ann.-- Houston [14th Dist.] 1995, no writ) .............. 22 Krohn v_ Afarcus Cahle Assocs __ L.P__ 201 S.W.jd 876, 880 (Tex. App.-Waco 2006, pet. demed) .................... 22 Texas Rules of Annellate Procedure Texas Rule of Appellate Procedure 39.1 .................................... 8

Texas Rules of Civil Procedure Texas Rule of Civil Procedure 510 (738-754. Renealed bv Order of Anri115. 2013. Eff. Aug. 31, 2013) .................................................. 17 Texas Pronertv Code Texas Pronertv Code Section 24.002-008 .................................................................. 12 Texas Property Code Section 24.005(b) .................................. .17 Texas Civil Practice and Remedies Code Texas Civil Practice and Remedies Code 31.005 (2013) ..................... .16 Texas Civil Practice and Remedies Code Ann. S 16.003(a) and (b) (West Sunn. 1998) ................................................... 10 Texas Civil Practice and Remedies Code 16.03 ....................... 12, 21, 23

Glossary of Terms Citation in this Brief will be as noted below to the following volumes of the

record on file in this appeal, said volumes being incorporated herein by reference:

Clerk' Record CR

Reporter's Record Volume 1 RRl

Reporter's Record Volume 2 RR2

Reporter's Record Volume 3 RR3

Statement of the Case

This is a Forcible Detainer Case. October 18, 2011 the Appellee filed a Forcible Detainer Action. November 7, 2011, the JP Court issued a judgment in favor of Appellant, denying the possession to the Appellee. I Appellee re-filed its lawsuit under Cause No. 051840 and the JP Court dismissed it as a duplicate case on November 7, 20 11.2 November 7, 20 11, a party in interest, at the time, filed in District Court a Quiet Title Action, Cause No. D-I-GN-Il-003424.3 November 21,2011, the Appellee filed another FED Action in this Court, Cause No. 052212. December 29, 2011, this Court issued Judgment for the Appellant.4 November 6, 2013, the Appellee filed another FED action (FED Action 4) in the JP Court, Cause No. J3CV13056327. The JP Court rendered judgment in favor of the Appellee. The Appellant appealed to the County Court at Law No. 1. The County

1 Exhibit C: FED Order 1, in favor ofDefendant, dated November 7, 2011, Cause No. 051975. 2 Exhibit D: FED Order 2, in favor ofDefendant, Duplicate Case Dismissal Order, dated November 7, 2011, Cause No. 051840. 3 Exhibit E: Quiet Title Action, filed in the 345 1h District of Travis County, dated November 7, 2011, Cause No. D- 1GN-11-003424. 4 Exhibit F: FED Order 3, in favor of Defendant, dated December 29, 2011.

Appellant's Motion for Rehearing Brief Page 6 of26

Court held a trial de novo and ruled in favor of the Appellee without issuing an opm10n.

Appellant's Motion for Rehearing Brief Page 7 of26

Statement Regarding Oral Argument

Pursuant to Texas Rules of Appellate Procedure 39.1, Nemer Massaad requests oral argument and submits that it would materially aid the decisional process in this case.

Appellant's Motion for Rehearing Brief Page 8 of26

Issues Presented

Appellant respectfully submits the following motion for rehearing brief which outlines the legal framework in which the Court should consider the following: 1. Whether the Two-year limitation period of Texas Civil Practice and Remedies Code §16.003 bars Appellee's Forcible Detainer suit for possession of the property?

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MOTION FOR REHEARING

STATEMENT OF FACTS On or about September 6, 20 11, the Appellee wrongfully conducted a foreclosure sale of this property.5 RR2 at 6; RR3 at PI's Exh. 2. September 23, 2011, the Appellee provided the Appellant with the Notice prescribed in Texas Property Code§ 24.005(b).6 RR2 at D's Exh. B. October 18, 2011 the Appellee filed a Forcible Detainer Action, authorized under Texas Property Code§ 24.005(b). RR2 at 18. November 7, 2011, the JP Court issued a judgment in favor of Appellant, denying the possession to the Appellee.? RR2 at 20. Appellee re- filed its lawsuit under Cause No. 051840 and the JP Court dismissed it as a duplicate case on November 7, 2011.8 RR2 at 20; Appellant's Brief at 9. November 7, 2011, a party in interest, at the time, filed in District Court a Quiet Title Action, Cause No. D-1-G.N-Il-003424.9 RR2 at 37; Appellant's Brief at 9. November 21, 2011, the Appellee filed yet another FED Action in this Court, Cause No. 052212. RR2 at 20; Appellant's Briefat 9. December 29, 2011, this Court again issued Judgment for the Appellant. I 0 RR2 at 20; Appellant's Brief at

5 Exhibit A: Trustee Deed, dated September 6, 2011 6 Exhibit B: Notice to Vacate, dated September 23, 2011 7 Exhibit C: FED Order 1, in favor ofDefendant, dated November 7, 2011, Cause No. 051975. 8 Exhibit D: FED Order 2, in favor ofDefendant, Duplicate Case Dismissal Order, dated November 7, 2011, Cause No. 051840. 9 Exhibit E: Quiet Title Action, filed in the 345 1h District of Travis County, dated November 7, 2011, Cause No. D- 1GN-11-003424. 10 Exhibit F: FED Order 3, in favor of Defendant, dated December 29, 2011.

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9. October 30, 2013, the Appellee mailed the Appellant a superfluous Notice to Vacate letter. CR 116-38, Bus. Records Aff.- Notices to Vacate' see also Appellant's Brief at 9. Finally, over two years after September 26, 2011, when the Appellee sent the Appellant the Notice required under Texas Property Code§ 24.005(b), on November 6, 2013, the Appellee filed yet another FED action (FED Action 4) in the JP Court, Cause No. J3CV13056327. The JP Court rendered judgment in favor of the Appellee. The Appellant appealed to the County Court at Law No. 1. The County Court held a trial de novo and ruled in favor of the Appellee without issuing an opinion. SUMMARY OF THE ARGUMENT The Court's holding on Appeal and Appellee's Appeal Brief are based on the holdings of two cases. Federal Home Loan Mortgage Corp. v. Crawford, Cause No. 14-13-0010-CV (Tex. App.-Houston [14th Dist.] Oct. 9, 2014]; and Puentes v. Fannie Mae, 350 S.W.3d 732 (Tex. App.-El Paso 2011, pet.. dism'd). These cases are inapplicable to this case before this court. The applicable statute of limitations on a suit for forcible detainer is two years. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (West Supp. 1998). For a suit to be timely under a two-year statute of limitations, it must be brought within two years from the date on which the cause of action accrues. !d. A cause of action generally accrues at the time when facts come into existence authorizing a claimant to seek a judicial remedy. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex.l990). In Texas, a Plaintiffs cause of action accrues, and the applicable limitations period starts to run, "when a wrongful act causes some legal injury, even if the fact

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of injury is not discovered until later, and even if all resulting damages have not yet occurred." S. V. v. R. V., 933 S.W.2d 1, 4 (Tex.1996). See also Doe v. Catholic Diocese ofEl Paso, 362 S.W.3d 707, 716 (Tex.App.-El Paso 2011, no pet.)(same). For the purposes of application of statute of limitations, a cause of action generally accrues at the time when facts come into existence which authorizes a claimant to seek a judicial remedy. Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex.1977). Put another way, "a cause of action can generally be said to accrue when the wrongful act effects an injury. In this case, the Appellee did not suffer an injury until it sent the Three-day Notice to Vacate and the Appellant refused to vacate. The Appellee sent the Three-day Notice September 23, 2011. Three days later, September 26, 2011, and not sooner, the Appellee could file an FED Action. The Appellee's injury occurred when the Appellant did not comply with the September 23, 2011 Three-day Notice to Vacate. This conduct caused the injury and gave rise to the FED cause of action, because at this point in time all the elements of Texas Property Code 24.002 were satisfied. Despite the Appellee filing four FED actions, it was the Appellant's noncompliance with the September 23, 2011, Three-day Notice to Vacate that caused the injury and gave rise to the filing of all four FED actions. However, the fourth FED Action was time barred by Civil Practice and Remedies Code 16.03 Two Year Limitation, because the Appellant filed FED Action 4 November 6, 2013, over Two-years after September 23, 2011, the date the Appellee filed the notice effecting the injury, giving rise to an FED cause of action.

ARGUMENT

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Whether the Two-year limitation period of Texas Civil Practice and Remedies Code §16.003 bars Appellee's Forcible Detainer suit for possession of the property? Yes, it does! The Puentes and Crawford Holdings In short, both cases hold that res judicata does not bar a subsequent forcible detainer action, because each forcible detainer action is a new and independent action. The Puentes Court held that each FED action is a new and independent action not subject to res judicata, because each FED action is uniquely limited in time and an award of possession on a particular date does not implicate a party's possessory right on a future date. Whereas, the Crawford Court held each FED action is a new and independent action not subject to res judicata, if before filing each FED Action a new notice is delivered and the tenant refuses to surrender possessiOn. Neither case mentions the statute of limitations of FED actions under Texas Civil Practices and Remedies Code 16.003. These cases are a classic red herring by the Plaintiff. They are irrelevant to the question of how to apply CPRC 16.003 to forcible detainer actions. Therefore, the court should ignore these cases. Puentes v. Fannie Mae Case Summary In Puentes, the plaintiff Federal National Mortgage Association ("Fannie Mae") filed a forcible detainer action against Juan and Socorro Puentes on April 17, 2009, but lost that suit when it was unable to produce admissible evidence that it had properly provided the Puenteses with a notice to vacate. Puentes v. Fannie Mae, 350 S.W.3d 732, 734-35 (Tex. App.-El Paso 2011, pet. dism'd). Fannie Mae filed another forcible detainer suit on July 2, 2009, and in response the

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Puenteses moved for summary judgment, arguing that res judicata barred the second suit. Id. at 735. The trial court denied the Puenteses' motion and proceeded to hear evidence on the forcible detainer suit. Following Juan Puentes's testimony that he did not receive any notice to vacate, Fannie Mae offered a business records affidavit with attached exhibits reflecting that notice to vacate was sent by regular and certified mail before the second action was filed. Id. at 735-36, 738. The evidence was admitted over objection, and the trial court ultimately ruled in favor of Fannie Mae. Id. at 736. On appeal, the Puenteses raised three issues, contending that the second suit was barred by res judicata, the trial court erred in admitting Fannie Mae's business records affidavit, and Fannie Mae's failure to pursue an appeal of the first suit deprived the justice and county courts hearing the second action of subject matter jurisdiction. Id. The appellate court rejected the second and third issues, and as to the Puenteses' res judicata argument, the court held that the second forcible detainer action was "'a new and independent action to determine which party had the superior right of immediate possession at the time it was filed" that was not barred by res judicata. I d. at 739. The Puentes court reasoned that a forcible detainer action is "uniquely limited in time" and, because an award of possession on a particular date does not implicate a party's possessory right on a future date, the third element of res judicata was not satisfied. Id. Federal Home Loan Mortgage Corp. v. Crawford Case Summary On May 22,2012, Federal Home Loan Mortgage Corporation ("'Freddie Mac") filed a petition for forcible detainer in the justice court against Trinh Pham, Gary Block, and Katherine Crawford. Federal Home Loan Mortgage Corp. v.

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Crawford, Cause No. 14-13-0010-CV, pg 1 (Tex. App.-Houston [14th Dist.] Oct. 9, 2014]. Crawford, inter alia, denied that Freddie Mac gave proper notice to vacate in accordance with the Texas Property Code. The justice court rendered judgment in favor of Freddie Mac in June 2012, and Crawford appealed to the county court for de novo review. Id. In a supplemental answer filed in the county court, Crawford asserted an affirmative defense that Freddie Mac's forcible detainer action was barred by res judicata. I d. Crawford also filed a motion for summary judgment, arguing that Freddie Mac was barred by res judicata from filing the forcible detainer action, the third such action initiated by Freddie Mac against the defendants. Id. Crawford supported her motion with evidence of Freddie Mac's first forcible detainer action in October 201 0 against Pham. Id. In the 201 0 action, a justice court rendered a take-nothing judgment in favor of Pham, and on appeal de novo, the county court rendered an order in February 2011, granting Freddie Mac's motion for nonsuit. Crawford also provided evidence of a second forcible detainer action filed by Freddie Mac against Pham, Crawford, and Block. Id. The 2011 action resulted in a take-nothing judgment in favor of the defendants, and on appeal de novo, the county court dismissed the action for lack of jurisdiction. Crawford's evidence included Freddie Mac's petitions, the justice court judgments, and the county court orders from the 2010 and 2011 actions. Id. In response, Freddie Mac challenged only the third element of res judicata, arguing that a new, independent cause of action for forcible detainer accrued because the occupants were served with new notices to vacate served in February and May 2012. Freddie Mac attached case law in support of its summary judgment response. Id at 2. The Crawford Court agreed with Freddie Mac and held that a

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new and independent cause of action for forcible detainer arises each time a person refuses to surrender possession of real property after a person entitled to possession of the property delivers a proper written notice to vacate; therefore, res judicata would not bar a second suit based on the commission of a subsequent forcible detainer. Id at 5. Res Judicata in Forcible Detainer Actions Civil Practice and Remedies Code sections addressing res judicata and estoppel effect of judgment or determination of fact or law in small claims court, justice of peace court, or lower trial court do not preclude res judicata effect of judgment or determination of those courts as to claims actually litigated therein. Tex. Civ. Prac & Rem. Code 31.005 (2013). Brown v. Henderson, 941 S.W.2d 190 (App. 13 Dist. 1996) (stating, "purpose ofthose statutes is to narrow preclusive effect of judgments of courts of limited jurisdiction by barring only claims actually litigated in limited-jurisdiction courts and allowing unlitigated claims to be tried, respectively, in county and district courts."); Houtex Ready Mix Concrete & Materials v. Eagle Canst. & Environmental Services, L.P., 226 S.W.3d 514 (App. 1 Dist. 2006) (stating "the code provision abrogating the general common law rules of res judicata and collateral estoppel for justice courts and small claims courts creates an exception to the general rule against splitting causes of action, allowing unlitigated claims from courts of limited jurisdiction to be tried in county courts."). The doctrine of res judicata precludes re-litigation of claims that have been finally adjudicated or that arise out of the same subject matter and that could have been litigated in the prior action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). Res judicata requires proof of the following elements: (1) a fmal

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judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims that were raised or could have been raised in the first action. Id A forcible detainer action is a special proceeding governed by Texas Property Code 24.002-008, and Texas Rules of Civil Procedure 510 (738-754, Repealed by Order of April15, 2013, eff. Aug. 31, 2013). Rice v. Pinney, 51 S.W.3d 705; 2001 Tex. App. LEXIS 1831; Kennedy v. Highland Hills Apartments, 905 S.W.2d 325, 326 (Tex.App.-Dallas 1995, no writ). It was created to provide a speedy, simple, and inexpensive means for resolving the question of the right to possession of premises. Id. To preserve the simplicity .and speedy nature of the remedy, the applicable rule of civil procedure provides that "the only issue shall be as to the right to actual possession; and the merits of the title shall not be adjudicated." see Tex.R. Civ. P. 510; Johnson v. Fellowship Baptist Church, 627 S.W.2d 203, 204 (Tex.App.-Corpus Christi 1981, no writ). The sole issue in a forcible detainer suit is who has the right to immediate possession of the premises. Fandey v. Lee, 880 S.W.2d 164, 168 (Tex.App.-EI Paso 1994, writ denied); Cuellar v. Martinez, 625 S.W.2d 3, 5 (Tex.Civ.App.-San Antonio 1981, no writ); Johnson v. Highland Hills Drive Apartments, 552 S.W.2d 493,495 (Tex.Civ.App.-Dallas 1977), writ refd n.r.e. per curiam, 568 S.W.2d 661 (Tex.1978). The exclusive purpose of an FED action is to provide a person who is entitled to the immediate possession of real property a legal remedy (emphasis added), rather than force or violence, to gain possession of the property. To prevail in a forcible detainer action pursuant to section 24.002 of the Texas Property Code, the plaintiff is not required to prove title but is only required

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to show sufficient evidence of ownership to demonstrate a superior right to immediate possession. Ward v. Malone, 115, S.W.3d 267, 270 (Tex.App.-Corpus Christi 2003, pet. Denied). For these reasons, a judgment of possession in a forcible detainer action is a determination only of the right to immediate possession and does not determine the ultimate rights of the parties to any other issue in controversy relating to the realty in question. Lopez v. Sulak, 76 S.W.3d 597, 605 (Tex.App.-Corpus Christi 2002, no pet.). Therefore, an FED judgment is not a final judgment. Consequently, an FED judgment inherently is not final and determines a time dependent issue (i.e., which party has the superior right to immediate possession). In other words, a subsequent FED action is not barred by res judicata, because the subsequent FED action does not meet the first and third prong of the res judicata test, even if only a single 3-Day notice was sent prior to filing both FED actions. The judgment is not fmal and the claims are different, i.e., the sole issue decided in an FED action, which party has the superior right to possession now, changes by the passage of time. There is no rule requiring a landlord to necessarily send a separate 3-Day Notice prior to filing an FED. The holdings in Crawford and Puentes point out that each FED is a new and independent action, and, therefore, res judicata does not bar the filing of subsequent FED actions. However, as pointed out above, this is true even where a single notice is delivered prior to filing more than one FED action. Legal Injury Rule The limitations statute governing forcible detainer actions does not defme the accrual date, and thus it falls to the courts to establish when such claims accrue. Pustejovsky v. Rapid-American Corp. 35 S.W.3d 643 (Sup. 2000); Childs v.

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Haussecker, 974 S.W.2d 31 (Sup. 1998, rehearing overruled) (stating, "Because the accrual date for personal injury actions is not defmed by statute of limitations, the courts are charged with the responsibility of articulating the rules governing accrual."); Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430 (App. 2 Dist. 1997, rehearing overruled, review denied, rehearing of petition for review overruled) (stating "Determining what rule of accrual to apply is question of law"); Rogers v. Ricane Enterprises, Inc. (App. 7 Dist. 1996) 930 S.W.2d 157, modified on rehearing, writ denied, rehearing of writ of error overruled) (stating, "Question of when cause of action accrues is judicial one to be determined with due regard to underlying statutory policy of repose, without, however, permitting unnecessary individual injustices."). For limitations purposes, the general rule is that cause of action accrues when wrongful act effects injury. Morriss v. Enron Oil & Gas Co., 948 S.W.2d 858 (App. 4 Dist. 1997); Sullivan v. Bickel & Brewer, 943 S.W.2d 477 (App. 5 Dist. 1995, writ denied, rehearing ofwrit of error overruled) (stating, "Accrual of limitations period occurs when facts come into existence authorizing claimant to seek judicial remedy."). In this case, the Appellee did not suffer an injury until it sent the first 3-Day Notice to Vacate, September 23, 2011, and the Appellant refused to vacate, four days later, September 27, 2011. On that date, and not sooner, the Appellee could file an FED Action. The Appellee's injury occurred when the Appellant did not comply with the September 23, 2011 Three-day Notice to Vacate. This conduct caused the injury and gave rise to the FED cause of action, because at this point in time all the elements of Texas Property Code 24.002 were satisfied. It was the Appellant's noncompliance with the September 23, 2011, Three-day Notice to

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Vacate that caused the injury and gave rise to the filing of all four FED actions. The legal status of the Appellants changed from tenant at sufferance to unlawful detainer and has not changed since. The sending of additional notices did not change the legal status of the Appellants. From September 23, 2011 to date the Appellants have not surrendered possession to the Appellee. The fact that the Appellee demanded possession more than once did not change the legal status of the Appellant, nor were the additional notices necessarily mandatory prior to filing FED Actions 2, 3, and 4. However, hypothetically, had the Appellee and Appellants entered an agreement, wherein the parties agreed that the Appellants could retain possession at will or for a term, the legal status of the Appellants would have changed. In this case, the SOL's would be cut off, and subsequently, if the Appellants defaulted on the agreement, and the Appellee sent the Appellants a demand to vacate and the Appellants refused, the SOL's would start anew. This hypothetical is inconsistent with the facts of this case. However, this situation occurs in the rental cases. For example, if a tenant under a written lease defaults on the rent one month, the landlord sends a demand to vacate, and the tenant cures. At this point in time and circumstances, the legal status of the tenant has changed. He is no longer in default. The facts giving rise to a forcible detainer action are lacking. Therefore, the SOL's is cut off. However, if the same tenant later defaults on rent, the landlord sends an appropriate demand to vacate, and the tenant does not cure, the legal status of the tenant has changed to an unlawful detainer. At this point in time and circumstances, the landlord suffers a new injury, giving rise to a new FED cause of action. If the legal status of the tenant effects a new injury, or recurring injury, the

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SOL's commences anew. In the case of a tenant at sufferance who refuses the first demand to vacate, as in this case, the landlord cannot fairly assert he suffers a new injury because the unlawful detainer ignores subsequent notices. The legal status of the former tenant at sufferance changed to unlawful detainer upon refusing to surrender possession after the first demand to vacate, and the tenant's legal status of unlawful detainer did not change with delivery of each subsequent notice. Note that subsequent notices do not cure the unlawful detainment, there is no agreement between the parties, and the injury suffered does not subside. The injury suffered by the landlord is that he is denied possession by the unlawful detainer. Texas Civil Practices & Remedies Code 16.003 affords the landlord two years from the date of unlawful detainment to obtain possession by filing a forcible detainer action, regardless of how many FED actions filed within the two-year period. This construction of the statute is fair and reasonable. An FED action is not a fmal judgment, res judicata does not bar refiling FED actions. An FED action is a special proceeding, cumulative of remedies available to the Appellee. At the end of two-year SOL, the Appellee has to invoke another legal remedy to obtain possession (e.g., trespass to try title, declaratory judgment action, writ of possession from district court). However, this construction of the statute allows an exception for rental cases, which are fundamentally different from the tenant at sufferance situation, as pointed out above. In this case, FED4 was time barred by Civil Practice and Remedies Code 16.03 Two Year Limitation, because the Appellee filed FED4 November 6, 2013, over two years after September 27, 2011, the date the Appellants failed to comply with the September 23, 2011 notice effecting the injury, giving rise to an FED

Appellant's Motion for Rehearing Brief Page 21 of26 cause of action.

Continuing Tort Rule A continuing tort involves wrongful conduct inflicted over a period of time that is repeated until desisted, and each day creates a separate cause of action. Two Pesos, Inc. v. Gulflns. Co., 901 S.W.2d 495, 500 (Tex. App.-- Houston [14th Dist.] 1995, no writ) (citing Arquette v.Hancock, 656 S.W.2d 627, 629 (Tex. App.- -San Antonio 1983, writ refd n.r.e.)).

In determining whether there is a continuing tort, "care must be taken to distinguish between 1) repeated injury proximately caused by repetitive wrongful or tortious acts and 2) continuing injury arising from one wrongful act. While the former evinces a continuing tort, the latter does not." Krohn, 201 S.W.3d at 880; (quoting Rogers, 162 S.W.3d at 290). In this case, the Appellants were purportedly tenants at sufferance, who refused to comply with a Notice to Vacate ever since September 27, 2011. In this case, prior to September 27, 2011, the Appellants, occupancy were not unlawful. After that date the Appellants detained possession unlawfully ever since. With the passage of each day, and for that matter, the filing of each subsequent 3-Day notice to vacate and filing of FED action, a new injury did not occur.

After October 15, 2011, the Appellant's occupancy or possession was hostile and defiant. Their legal status changed to unlawful detainers. This state of affairs has not changed heretofore and gave rise to all four of the Appellee's FED Actions. The September 23, 2011 Notice and the Appellants' noncompliance with it

Appellant's Motion for Rehearing Brief Page 22 of26

inflicted an injury on the Appellee, and was required for the Appellee to file all four FED actions (although FED4 is time barred). Subsequent notices to vacate were superfluous.

PRAYER The Appellee obtained a Substitute Trustee Deed to the Property September 6, 2011. The Appellee served the Appellant with Notice to Vacate September 23, 2011. The Appellee subsequently filed Four FED Actions, including this Action filed November 6, 2013, over two after the September 23, 2011 Notice to Vacate. For a suit to be timely under Texas Civil Practices and Remedies Code 16.03 two- year statute of limitations, it must be brought within two years from the date on which the cause of action accrues. In Texas, a Appellee's cause of action accrues, and the applicable limitations period starts to run, when a wrongful act causes some legal injury, even if the fact of injury is not discovered until later, and even if all resulting damages have not yet occurred. The Appellee's injury occurred when the Appellant did not comply with the September 23, 2011, Three-day Notice to Vacate. This injury gave rise to the FED cause of action, because at this point in time all the elements of Texas Property Code 24.002 were satisfied. Therefore, the fourth FED Action was time barred by Civil Practice and Remedies Code 16.03 Two Year Limitation. The Appellant filed FED Action 4 November 6, 2013, over two years after September 23, 2011, the date the Appellee filed the notice effecting the injury, giving rise to an FED cause of action. FED Orders 1, 2, and 3 were in favor of the Appellant. The County Court had a de novo trial and ruled in favor of the Appellee without issuing an opinion. The County

Appellant's Motion for Rehearing Brief Page 23 of26 Court FED Action is likewise time barred, and should be reversed.

Date: March 19, 2015 Respectfully submitted, Is/ JAMES MINERVE James Minerve State Bar No. 24008692 115 Saddle Blanket Trail Buda, Texas 78610 (210) 336-5867 (888) 230-6397 (Fax) Attorney for Appellant Nemer Massaad

Appellant's Motion for Rehearing Brief Page 24 of26

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing document was sent to the Appellee in accordance with the Texas Rules of Civil Procedure on this 19th day of March 2015:

Mackie WolfZientz & Mann, P.C. Mark D. Cronenwett State Bar No. 00787303 Parkway Office Center, Ste 900 14160 North Dallas Parkway Dallas, Texas 75254

Is/ James Minerve

James Minerv CERTIFICATE OF COMPLIANCE

Because this brief contains 6929 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4(i)(2), Appellant has simultaneously filed a Motion to Exceed Word Number Limitation that is required per Tex. R. App. P. 9.4(i)(2)

Is/ James Minerve

James Minerve Appellant's Motion for Rehearing Brief Page 25 of26

Appendix

1. Travis County Court at Law Number One Judgment. 2. Texas Civil Practice and Remedies Code § 16.003

Appellant's Motion for Rehearing Brief Page 26 of26

ELECTRONICALLY RECORDED 2011135329 TRV 3 PGS

FORECLOSURE SALE DEED (With attached Affidavit for recording as one document)

Deed of Trust Date: August3! , 2006

Grantor(s): NEMER MASSAAD

Original Mortgagee: OPTION ONE MORTGAGE CORPORATION, A CALlFORN1A CORPORATION

Current Mortgagee: WELLS FARGO BANK, N.A., AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST 2006-3, ASSET-BACKED CERTIFICATES, SERIES 2006-3

Recording Information: Docurilent 2006171794 of the real property records of Travis County, Texas.

Property Legal LOT 19, BLOCK E, OL YNrPIC :HEIGHTS SECTION 2, A Description: SUBDIVISION INTRAVIS COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN DOCUMENT ~"111v1BER 200200216 Of TIIE PLAT RECORDS OF TRAVIS COUNTY, TEXAS.

Date of Sale: 09/06/20JJ Time of Sale: I;;L: DI r---- Place of Sale: THE AREA UNDER THE REAR PORTICO OF THE COURTHOUSE LOCATED ON THE WEST SIDE OF COURTHOUSE IMMEDIATELY SOUTH OF AND SLIGHTLY EAST OF liTH & SAN ANTONIO STREET, REFERRED TO AS THE SALL YPORT OR AS DESIGNATED BY THE COUNTY COMMISSIONER'S OFFICE

Buyer: WELLS FARGO BANK, N.A.. AS TRUSTEE FOR OPTION O:NE MORTGAGE LOAN TRUST 2006-3, ASSET -BACKED CERTIFICATES, SERIES 2006-3 ~ Buyer's Mailing c/o AMERICAN HOME MORTGAGE SERVICING, INC. Address: 1525 S. BELT LINE RD COPPELL, TX750!9

Amount of Sale: $122,400.00

By Deed of Trust, Grantor conveyed to THOMAS F. VETTERS, as Trustee, certain property for the purpose of securing and enforcing payment of the indebtedness and obligations therein described, including but not limited to the Note and all renewals and ex1ensions of the note. M>\RK HOPKINS; PAUL CetLEY. JR., A:f±!SON CW.NDLER., M. MATTHEW WILLIAMS, JeHN L YNCJ !, EMILY STR68PE-eR-MIGm-W-Z.lENJ:Z was appointed by an Appointment of Substitute Trustee executed by WELLS FARGO BANK. N.A., AS TRUSTEE FOR OPTION ONE MORTGAGE LOA..N TRUST 2006-3, ASSET-BACKED CERTIFICATES, SERIES 2006-3, the current mortgagee of the Deed of Trust, who requested 1vfttR:!E-HGJ2X.lNS, P..M::f!:;-e<Jt:tEY;-3-R::;-ALHSQ.N...GHAtiD.bER; M. MATTHEW WILLIAMS, Jel#!..LYNC-H, EMILY STR09P&-OR..MI.CHAEI..-W.-ZI~. as Substitute Trustee, to enforce the !rust of the Deed of Trust.

Pursuant to the requirements of the Deed of Tmst and the laws of the stale of Texas, written notice of the time, place, date, and tenns of the public foreclosure sale of the Property was . poshx.l at the courthouse of Travis County, Texas, the county in. which the Property is situated, and a copy of the notice was also filed with the county clerk of Travis County, Texas, each notice having been posted and filed for at least twenty-one days preceding the date of the foreclosure sale. Written notice of the time, date, place, and terms of the foreclosure sale was served on behalf

of the current Mortgagee by certified mail on each debtor who, according to the records of the cun·enl Mortgagee, is obligated to pay any of the indebtedness and obligations. The certified-mail r.otices were timely sent by depositing th.c notices in tl1e United Stales mail, postage prepaid in proper amount, and addressed to each debtor at the debtor's last known address as shown by the records of the current Mortgagee at least twenty-one days preceding Ute date of the foreclosure. Wtitten notice of default and of the opportunity to core the default to avoid acceleration of the maturity of the note w as· served on behalf of the current Mortgagee by certified mail on each debtor who, according to the records of the current Mortgagee, is obligated to pay any of the indebtedness and obligations. The certified-mail notices were timely se.'lt by depositing the notices in the United States mail, postage prepaid in proper amount, and addressed to each debtor at the debtor's last known address as shown by the records of the current Mortgagee at least thirty days preceding the date of the acceleration of the maturity of the note and the posting of the mortgaged Property for foreclosure.

In consideration of the premises and of the bid and payment of the amount of $122,400.00, the higbest bid by Buyer, I, as Subs titute Trustee, by virtue of the authority conferred on me in the Deed of Trust, have GRANTED, SOLD, and CONVEYED all of the Property to Buyer and Buyer's heirs and assigns, to have and to hold the Property, together with the rights, privileges, and appurtenances thereto belonging unto Buyer and Buyer's heirs and assigns forever.

~l~ue:~~u~~~t~~~~~~' D~f~~~b~~eb~:op~~~nt~ ;~~ero::t~~;.:-~~d O:~si;~~~~ forever, against the claim or claims of all persons claiming the same or an art thereof.

Executed on~ day of ~ '~=, 201 L

MARK HOPKINS;WrCJI:;-eeJ:;l":;l3¥;-fR., AI.HSeN CHANDI:;ER, M. MATTHEW WILLIAMS, JOHI<I LYNCM, EMII::T" 8'FROOPE OR: MlCHA£L W. ~EEHTZ

STATE OF TE~ · § COUNTY OF J tUJL1 §

BEFORE ME, the undersigned authority, on this day personally appeared MARKc :~;:JR., ALLISON CI!A:Nl3tER, M MATTHEW WILLIAMS, JGHN TYl>!C:W, JilM!LY STROOPE OR MICHAEL ~~z. as Substitute Trustee, known to me to be the person whose name is subscribed to the foregoing instrument, and who acknowledged to me that he/she executed the same for the pUiposes and consideration therein expressed and in the capacity therein stated. ·

tJ-ik ~11. Given under my hand and seal of office this rL.__ day o:!\ · ·

· t 1"' LuJL tki_ Notary Public, State of Texas XXXXXX0834/J J-000298-910 AFTER RECORDATION RETIJRN TO: Mru:kie WolfZientz & Mann, P. C. Pacific Center I. Suite 660 14180 North Dallas Parkway Dallas, 1X 75254 CINDEE K. CHARD Notary Public. Slate ot Texas My Commi ~~lon E>p•res Juno \9,2.013

AFFIDAVIT

STATE OF TEXAS

COUNTY OF DALLAS

BEFORE ME, the undersigned on this day personally appeared BRANDON WOLF and after being duly sworn; deposed and stales under oath, as follows:

I. I am over the age of eighteen ( 18), have not been convicted of a crime of moral turpitude and have personal knowledge of the facts contained in this affidavit.

2. All notices required pursuant to the terms of the Deed of Trust and Texas Property Code Section 5!.002(h) and (d) were provided to the debtors.

3. In accordance with Texas Property Code Section 51.002, the Notice of Sale was posted at least twenty-one (21) days prior to the date of sale at the proper location designated by the County Commissioner's Cow1. Additionally, a copy of the Notice of Sale was filed at least twenty-one (21) days prior to the date of sale in the office of the County Clerk of the county in which the sale occurred.

4. At the time of the Foreclosure Sale and nine (9) months prior to sale, the debtors were not in the armed services of Ute United States of America.

5. At the time of the Foreclosure Sale the debtors were alive, were not protected by any stay under the United States Bankruptcy Code and were not involved in any divorce proceedings where a receiver had been appoin~ . ,..., \ )

BRANDON -;.,'OL;f- STATEOFTEXAS § § COUNTY OF DALLAS § -/-7 ~D SWORN TO before me by BRANDON WO F on this /.c):!_ kiy of /~,2011.

MWZ#: 11-000298-910 Property Address: 2408 WILMA RUDOU'H RD, AUSTIN, TX 78748

FILED AND RECORDED OFFICIAL PUBLIC RECORDS . . c;,~<~-r..:::~.:!:. . "L~ DANA DEBEAUVOIR, COUNTY CLERK TRAVIS COUNTY. TEXAS September 16 2011 10:38 AM FEE : S 24 00 2011135329

lVL\.cKrE \VoLF ZmNTZ & l\1ANN, P. C. ATTOlLl'.fC'f~ AT LA\;: l'Hw:! {214} 635-2650 F,o: (2 !4) 635-2686

PACIFIC CB-'1'ER I, Sun;: 660 UNION PLAZA 14180 1\'or;nt D.m.As PtJUCWAY 114 I-VEST c.,\PrrcL, SuiTE 1890 o,UL-;5, TEX.;.s 75254 LnTLE Roc;::, Ar.<:ANsAs 72.20 J .,. PL£.;.s:;: J:O.~sn "l'o DALJ...A:"~ omo

I 1-000298-910 September 23, 2011 VIA CERTIFIED MAIURRR AND REGlJLAR.!vf.AIL ~EMER iviASSAAD 2408 WILYIA RlJDOLPH RD AUSTIN, TX 78748

Re: Property Address: 2408 WILMA RODOLPH RD, AUSTIN, TX 78748 MWZ Case No.: 11-000298-910 3 Day Notice to Vacate Prior to Filing Unlav..ful Entry and Detainer- Residential

PLEASE 1AK.E-NOTICE: Pursuant to the terms of the Deed of Trust that encumbered the above referenced property a foreclosure sale was held on 09/06/2011. Our client, WELLS FARGO BANK, N.A., AS TRUSTEE FOR OPTION ONE MORTGAGE LOA.l"l" TRUST 2006-3, ASSET- BACKED CERTIFICATES, SERIES 2006-3, was the purchaser at the foreclosure ~1.le and based upon the Deed of Trust, you are hereby given this 3-Day Notice to Vacate. You must completely vacate the leased premises by 09/26111.

OCCUPA1'1T ASSISTANCE NOTICE .A provides relocation assistan.ce programs to ·occupants of it<; foreclosed properties, for both fonner owners and tenants. It also provides a tenant information hotlin.e, to allow you to claini tertant status as explained below. To discuss these programs, your options under them, or to claim tenant protections, please cal! (866) 612-3746. l!ARA ASISTENCIA EN ESPANOL LLAME AL (866) 612-3746.

Tex<ts Property Code §24.005(b) provides inpart: If the occupant is a tenant at will. or ·by sufferance, !.he landlord must give the te.nant at least Um~e days' written notice to vacate before the landlord files a forcible detainer suit.

If you fail to vacate by the above deadii..ne, we will, on behalf of our client, VIELLS FARGO BA.?<K, N .A., AS TRUSTEE FOR OPTION Ol'rE MORTGAGE LO.i\.i'\1 n ..UST 2006-3, ASSET- BACKED CERTfFICATES, SERIES 2006-3, ftle a Forcible Detainer la,.vsuit aga inst you.

fF YOU ARE Al'l ACTIVE DUTY MEMBER OF THE L'Nrrrm STATES ARMED FORCES OR A DEPEJ\'DENT Of A1'i' ACTIVE DUTY SERV1CEMElVIBER, YOU MAY BE EKJTTLED TO RIGHTS AS PROVIDED IN THE SERVlCEMEMBERS CIVIL

Lcm1 Nt~. OU22'22(•SJ.: Nr•iit:t:.cfVao;..1tC- rr:.ge.l ~f2

H.ELIEF ACT. IN SUCH CASE, YOU OR YOUR ATTORNEY SHOULD CONTACT THIS LAW FIRM AND PROVIDE PH.OOF OF i\'1ILITARY SEH.VICE IMMEDIATELY SO THAT THIS FIRM CA1\ DETERlvliNE IF YOU FALL tJNDER TJill PROTECTION OF THE ACT. PLEASE CONTACT DJLJmA COLEMAN OR BRIAN OM:VLA_RT i\.T (214) 635-2650.

THIS NOTICE IS GIVEN PURSUA...!'iT TO APJ>LICABLE LAW A:Nl) IN NO WAY IMPAIRS ANY OF THE OTHER REiVIEDIES OR RIGHTS OF THE 0\VNER, ETI'H.ER UN'DER Tfffi DEED OF TRUST OR U.l\'DER APPLICABLE LAW.

lf you buve any questions please call our o:ftices at (214) 635-2650 . Issued on September 23, 2011.

Mackie WolfZientz & Mann, P. C .

.L o~ n h!o. DfJ:!22;0S3'4 N'uric<· ufVaca(c ~ Pi!:gc ~ nf2

Nov 07 11 03:12p Donald Buchanan

WELLS FARGO BANK, N.A. AS TRUSTEE ';{ FOR OPTION ONE Y.:ORTGAGE LOAN J- { JUS'!'ICE COURT '!'RUST 2006-3, ASSET-BACKED }{ CERTIFICATES, SERIES 2006 - 3 }{ }{ v. }{ PREC=NCT THREE }{ TRlWIS COU:JTY, TEXAS !vl:O..SSAAD, )JEivJER AKD ALL OCCUPANTS }{

> > > JUDGMENT < < <

on NOVEr-mER 7 , 2011, came to be heard the above entitled and numbered cause. The P:aiJtiff appeared and announced ready for trial. The Defendant, duly notified @idicl ~t appear and ar:nounce ready for trial. No Jury was demanded and all issues were submitted to the Court. After hearing aJd considering . pleadings, evidence and argument, the Court is of the opir:ion and finds L-1at ':.he ~fL~ is entitled to judgment. During the pendency of an apl?eal in tfiis cause, t.he court finds the monthly rental amount is $ of which the Defendant's portion ~s $ and a governmental entity's portion is $ ________________

IT IS TH:::::REFORE ORDERED, that the Plaintiff, HELLS FARGO BANK, N.A. AS TRUSTE::::: FOR OPTION ONE HORTGAGE LOAN TRUST 2006-3, ASSET-BACKED CERTIFICATES SERIES 2006-3 recover =rom the Defendant, ~SAAD, NEMER AND ALL OCCUPANTS as follmvs:

POSSESSION of the p:::."emises at 240 ~'V'ILM.:r>. RUDOLPH RD, AUSTIN, TX 78748

$ rent; $ attor ey's fees; or $ as · otal sum; plus court costs; and ost judg~ent interest et a rate of 5.00% per ennum on all amounts from the date of judgment until paid.

Signed NOVEHBER 7 , 2011 ORIGINAL SIGNED SYJUDGE

Susan Steeg Justice of ~he Peace Precinct Th:::."ee Travis Countys Texas

------- -------------------. --- -

CAUSE NO. 051840

WELLS FARGO BANK, N.A., AS § IN THE JUSTICE COURT TRUSTEE FOR OPTION ONE § MORTGAGE LOATTRUST 2006-3, § ASSET-BACKED CERTIRCATES, § PRECINCT THREE SERIES 2006-3 § vs. § § TRAVIS COUNTY, TEXAS

NEMER, MASSAAD AND ALL OCCUPANTS OF 2408 WILMA RUDOLPH RD, AUSTIN, TX 78748 MOTION TO DISMISS

I, Plaintiff /Attorney; Defendant /Attorney; Other, request the court dismiss this case above for the reasons FULLY stated below: ================================================= REASON FOR MOTION SEEATICHED

· i Signature of Movant

Printed Name of Movant

ORDER NOV 07 2011 On this the day of , ~e to be heard the above Motion for Dismissal and the same hereby ~TE DENIEr> with/without prejudice. ....

ge Susan Steeg Justice of the Peace, Pet. 3 Travis County, Texas

Civil/jgmt-order/Motion to Dismiss *1 Nov 07 11 03:06p Donald Buchanan

--- - - - - -· ---- - · - - - - - v./ 1--&v-1 i-Do5 ~:z~ ~·-- ~-

cAsE No.:

JOHN RADY IN THE DISTRICT COURT Plaintiff, 1 AT LAW NO. 3lf5tb vs. TRAVIS COUNTY, TEXAS ELIZABETH BOULTON and SAND CANYON CORPORATION

WELLS FARGO BANK, N.A., AS TRUSTEE FOR OPTION ONE MORTGAGE LOANN TRUST 2006-3, ASSET-BACKED CERTIFICATES, SERIES 2006-3 and

AMERICAN HOME MORTGAGE SERVICING, INC. Defendants

Notice to Agents is Notice to Principles Notice to Principles is Notice to Agents

PLAINTIFF'S VERIFIED ORIGINAL PETiTION FOR DECLARATORY

QUIET TUTLE ACTION AND SUIT FOR UNLAWFUL FORECLOSURE

Reference:

This Petition is fHed with reference to: That certain Deed of Trust and Note originated on August 31, 2006 with OPTION ONE MORTGAGE CORPORATION the loan number number of which is 351039270 pertaining to the property known as 2408 Wllma Rudolph rd Austin, TX 787 48 of which the legal description is LOT 19, BLOCK E, OLYMPIC HEIGHTS SECTION 2, A SUBDIVISION IN TRAVIS COUNTY, TEXAS

Nov 07 11 03:06p Donald Buchanan (512) 264-2762 p.4

TO THE HONORABLE JUDGE PRESIDING:

Plaintiff, JOHN RADY, {herein after referred io as the aPlaintiff") vvho receives mail at

13276 Research Blvd. # 204 Austin, Texas 78750 brings an action against ELIZABETH

BOULTON and SAND CANYON CORPORATION WELLS FARGO BANK, N.A., AS

TRUSTEE FOR OPTION ONE MORTGAGE LOANN TRUST 2006-3, ASSET-BACKED

CERTIFICATES, SERIES 2006-3 and AMERSCAN HOME MORTGAGE SERVICING,

INC. referred to as "Defendantsn for unlawful foreclosure and for other causes of action

as stated herein:

DEMAND FOR JURY TRIAL

Pursuant to Texas rule 216(b), a jury trial is demanded.

INTRODUCTION In a Judicial or Non-Judicial Foreclosure The normal law goveming the proper procedure is governed by the Texas Constitution and the Texas Civil Rules of Procedures. However, in this case, the more important matter at issue is over the Promissory Note (a negotiable instrument) and the right of enforcement as granted by the Deed of Trust. The rights of the Defendant are derivative of the transferee from whom the Defendant received its rights. The transferee's rights were a derivative of those rights from whoever transferred those rights to them. This pattern continues back to the beginning of the chain of title. Therefore in order for the Defendant to show the right to foreclose Defendant must first prove proper chain of title and secondly what authority has been granted to U1e defendant. Therefore, this controversy is governed also by the Uniform Commercial Code. As per the Note and the Deed of Trust the Applicable law shall be ualf controlling applicable federal, state, and local statutes, regulations, ordinances and administrative rules and orders ( that have effect of law) as well as all applicable final, non-appealable judicial opinions."

A Promissory Note, is a unique negotiable instrument That uniqueness is what gives it power. If it were not for the uniqueness of the instrument there would be numerous conflicting claims and no way to decide who the proper owner is or who has

Nov 07 11 03:06p Donald Buchanan (512) 264-2762 p.5

the right to enforce the terms of the agreement. The law is clear. with few exceptions, a person must be in possession of the note in order to have any rights. It is for this reason that the original wet ink signature Promissor-y Note is a critical piece of material evidence to establish whether or not the Defendant is the Holder in Due Course as governed under the UCC, and if not, who is.

DISCOVERY LEVEL

1. Pursuant to Rule §9.01 0,2 of the Texas Rules of Civil Procedure. Plaintiff intends to

conduct a Level 2 discovery in this case.

THE PARTIES

2. At all times relevant hereto, Plaintiff, JOHN RADY, receiving mail at 13276

Research Blvd. # 204 Austin, Texas 78750 is a resident of the State of Texas. The

Plaintiff is the owner of the property which is the subject matter of this Petition.

3. Upon information and belief, at all times relevant hereto ELIZABETH BOULTON and

SAND CANYON CORPORATION WELLS FARGO BANK, N.A., AS TRUSTEE

FOR OPTION . ONE MORTGAGE LOANN . TRUST 2006-3, ASSET-BACKED ·

CERTIFICATES, SERIES 2006-3 and AMERICAN HOME MORTGAGE

SERVICING, INC.are the alleged lenders with adverse interest in the controversy.

Defendant maintains several offices in Texas and has previously transacted and

may continue to transact business throughout the State of Texas.

4. The Defendants identified in above paragraphs shall be referred to collectively as

"Defendants".

5. Whenever reference is made in this Petition to any act of any Defendant(s), that

allegation shall mean that each Defendant acted individua!ly and jointly with the

other Defendants. *4 Nov 0711 03:06p Donald Buchanan (512) 264-2762 p.6

6. .A.ny allegation about acts of any corporate or other business Defendant(s) means

that the corporation or other business did the acts alleged tltrough its officers.

directors, employees, agents and/or representatives while they were acting within

the actuaf or ostensible scope or their authority. 7. At all retevant times, each Defendant committed the acts, caused or directed others

to commit the acts, or permitted others to commit the acts as stated in this Petition.

Additionally, some or all of the Defendants acted as the agent of the other

Defendants and all of the Defendants acted within the scope of their agency if acting

as an agent of another.

8. At all relevant times, each Defendant knew or realized that the other Defendants

were engaging in or planned to engage in the violations of law as stated in this

Petition. Knowing or realizing that other Defendants \.vere engaging in or planning to

engage in unlawful conduct, each Defendant nevertheless facilitated the

commission of those unlawful acts_ Each Defendant intended to and did encourage,

facilitate. or assist in the commission of the unlawfuf acts, and thereby aided and

abetted the other Defendants in the unlawful conduct.

9. The violations of law as stated in this Petition occurred in Texas and the United

States.

JURISDICTION AND 'VENUE

10. The subject matter in controversy is within the jurisdictional limits of this Court The

Court has personal jurisdiction because the property, which is the subject of the

litigation and the same, is located in Travis County Texas . See §17.56 of the Texas

Business and Commerce Code.

11 . Defendants are doing business in Texas and, have committed torts in the State of

Texas. *5 Nov 07 11 03:07p Donald Buchanan (512) 264-2762 p.7

'12. Venue !s proper under the mandatOP.:f venue rules§ 15.001 , "!5.0C2(J\), ("1 } of the

Texas Civil Practice and Remedies Code.

BACKGROUND MATERIAl FACTS

13. On Apri[ 22, 2011 Nemer Massaad conveyed all interest in the real property

described as 2408 Wilma Rudolph rd, Austin, TX 78748 to John K. Rady. See

E.x.'"libU 1.

14. JUDICiAL NOTICE

15. If Defendant is unable to prove it is a Holder in Due Course and is unable to

establish lawful authority from the true Note Holder in Due Course, then it has no

Standing or right of enforcement

CAUSES OF ACTION

16. Defendant is not a real party in interest and had no legal standing to foreclose on the Property. 17. Furt'ler, standing "requires that a party seeking relief have a legally cognizable

. interest in the subject matter and that he has a threatened or actual injury.

18. The Note has been securitized and is now part of a public offering placed in a Trust

Therefore the Defendant can not claim ownership 11-.tithout committing securities

fraud and is thereby bringing fraud before the court.

19. Defendant does not have the original Note and can not show legal Chain of Title or

authority to foreclose on the property. A point at issue in this controversy involves

the authenticity of a Promissory Note, Deed of Trust with Chain of Title and

Defendant's standing to enforce foreclosure on property referenced above. Nov 0711 03:07p Donald Buchanan (512)264-2762 p.8

20. Plaintiff heieby Moves this Court to enter an Order compelling all parties who can

lay iawfuf claim on the Deed of Tr..Jst io do so by presentment of valid enforceable

proof of claim.

21. There is no evidence of an assignment of the Deed of Trust from the real party in

interest. Defendant has not produced an assignment, nor are any assignmenfs

recorded in the public records as required by law.

22. Plaintiff hereby Moves this Court to enter an Order compelling all parties who can

:ay lawful claim on "the Note to do so by presentment of valid enforceable proof of

claim.

23. Defendant brings multiple accounts of fraud before the court by claiming to be the

Note Holder, claiming to have fulfilled the requirements of non judicial foreclosure

24. Breach of contract. Defendant has not followed the terms of the Note and Deed of

Trust The terms of the Deed of Trust have been violated by the Defendant making

the Deed of Trust unenforceable.

25. The Note and Deed of Trust have been Bifurcated nullifying the Deed of Trust

resulting in no right to foreclose.

26. By claiming to have a personal knowledge of the facts and to have reviewed the

documents and signing an oath as to their authenticity the counsel for the

Defendant has brought fraud before the court an done so in an effort to deceive the

court into granting undue enrichment for himself and his client

27. Unconscionability. Defendant has fraudulently committed multiple violations of local,

state and federal laws in an effort to receive unjust enrichment

28. Defendant violates the laws governing the Note and the Deed of Trust as a matter of

practice in an effort to cut costs and many of these laws.

29. Defendants have committed Fraud and extortion to abuse the Non judicial process

to suit their needs and requirements.

30. Defendant has failed to meet the precedent conditions to Non Judicial Foreclosure.

··- - -·- -- - . -- · -·-·-·- - · - - - -- - -- - - - - - -Nov 07 11 03:08p Donald Buchanan (512) 264-2762 p.9

31. Defendant has put the Plaintiffs property at risk by doing busin:=ss out side !he iimits

of defendants authority as a licensed bank and under defendant's corporate charter_

32. Defendant misled the Plaintiff as to the purpose of creating the Note and what would

happen to the Note after the Note was endorsed. Tnese misrepresentations were

intentional and designed to conceal the undue enrichment of the Lender.

33. The Defendant breached its fiduciary responsibility to the Plaintiff by not disclosing

all of the facts concerning the Noie and Deed of Trust and acting in a manner that

puts the Plaintiff's property at risk.

34. The Defendant by wrongfully foreclosing on the Plaintiff's Property 11as caused

irreparable damage to the Plaintiff. depriving the Plaintiff of the right to private

property, the enjoyment of the fruits of their labors, and deliberately creating

conditions whereby the Plaintiffs resources are extinguished in an effort to limit

Plaintiff's ability to defend their rights.

35. Defendants actions have been deliberately designed to inflate the cost of reinstating

the loan and creating circumstances whereby the Plaintiff could not qualify for loan

Modification allowing the Defendant to give the appearance of offering help while

working to do the opposite.

36. Defendant ts not in· compliance with the FASB (Financial Accounting Standards

Board) partofthe GMP FAS 5. 95,125,133,140.

PRAYER FOR REUEF

37. WHEREFORE, if Defendant fails to produce a lawful proof of claim and proof of

standing as the Holder in Due Course, and Chain of Title Plaintiff respectfully moves

this Court to enter a Quite Title judgment ordering the following remedies.

38. Release Plaintiff from a!! claims in relation to Defendant's foredosure.

39. Award Quiet Title to the Property that is the subject of this suit.

40. Mali< the Note as "Settled in Fulr for the Defendant's record, as well as all public

7 --------------·-----

Nov 07 11 03:08p Donald Buchanan (512) 264-2762 p. 10

41. records including but not limited to; al! credit bureaus and county records.

42. Declare the Recorded Deed of Trust. Loani Mortgage of record. null and void.

43. Return all monies collected on thls transaction to date with the same interest as the

original Promissory Note calculated from the date of the loan paid in oile lump sum.

44. Punitive damages for every intentional and knowing violation;

45. Declare the promissory note to be tully discharged.

46. Damages not to exceed the jurisdictional limits of this Court.

47. Recording fees, Court Cost, Servicing Fee's, eY.penses and any such other and

further relief to which the plaintiff may Justly be entitled.

48. Any other equitable relief, which the court deems, appropriates in ihis case.

49. Any and all other remedies appropriate and necessary deemed by this Honorable

Court.

Respectfully submitted this the 7th day of November 2011.

13276 Research Blvd # 204 Austin, TX 78750 T: 512-258-0909

8 - - - - - - - - - - - -- - - - --· -- .. . __ . *9 Nov 07 11 03:09p Donald Buchanan (512) 264-2762 p.11

CERTiFICATE OF SERVICE

Plaintiff's request that the clerk of the court prepare dtatior. and that same be served b~· 1he clerk as authorized by the Texas rules by certmed mail , retum receipt requested • to the parties and addressed as follows:

JOHN RADY may be served at 13276 Research Blvd #204 Austin, TX 78750

AMERICI\NI-:fOME·MORTGAQE SERVICING, INC.

35b_N:'St·PAUL,._.ST. $TE;.2900 DAllA$. TEXAS75201

SAND CANYON CORPORATION ~i~~:?Stiiit (;T CORPORATION SYSTEM 350N. ST. PAUL St STE. 2900 DALLAS, TEXAS 75201

ELI?f;Br;TH f?QULTON c/o-SAND CANYON CORPORATION registered agentCT CORPORATION SYSTEM 350N. ST. PAUL ST. STE. 2900 DALLAS, TEXAS 75201

Nov 07 11 03:09p Donald Buchanan (512) 264-2762 p.12

VERIFICATION

STATE OF TEXAS COUNTY OF TRAVIS

IT JOHN RADY, hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for peJjury.

--;::/ 0 ,..

';:f()HN RADy----~-=-"""'"''"".,...~- ./ 13276 Research #204 Austin, TX 78750 T: 512-258-0909

SUBSCRIBED AND SWORN TO BEFORE ME on this the _ _ day of _ _ _ __ _ _ _ _ _ 20.11.

Notary Public rn and for

The State of Texas.

··--·- --· -------------NOTICE SENT: @INTERLOCUTORY r:~:~E DC BK12320 PG628

DISP PARTIES: ~ Filed in The District Court DISP CODE:~ Cl@{Q [ r of Travis County, Texas REDACT PGS: _ _ _---..,,...-,...-- ER NOV f 3 2012 JUDGE ().;..{ CLERK tttfil\0 NO. D-1-GN-11-003424 At . II: 45 tt.M.

JOHNRADY, § IN THE DI~T~I~f1~5·tm'fl6fJerk § Plaintiff, § § vs. § § ELIZABETH BOULTON, SAND § CANYON CORPORATION, WELLS § FARGO BANK, N.A., AS TRUSTEE FOR § OPTION ONE MORTGAGE LOAN § TRUST 2006-3, ASSET BACKED § ;.~·.,~ ·-.:,:'

CERTIFICATES, SERIES 2006-3, AND § ~!~ 1-::..J. r~ AMERICAN HOME MORTGAGE § SERVICING, INC., § <(-Y § i!j:t 345th JUDICIAL DISTRICT Defendants. § Jb· ~·~

ORDE~*~ ~ On the 13th day of November 2012, ~ Court heard Elizabeth Boulton's Special (j Appearance and Defendants Elizabeth Boult!?~ Sand Canyon Corporation, Wells Fargo Bank, ~,-

N.A., as Trustee for Option One Mortg~~an Trust 2006-3, Asset-Backed Certificates, Series Q' 2006-3, and Homeward Residential, I"\~ Inc. f/k/a American Home Mortgage Servicing's Traditional IF::-., and No-Evidence Motion for SJ!rii'rhary Judgment. The Court, having considered the Special , ... ·-.."" Appearance and Motion, ~m;;\esponses thereto, the competent summary judgment evidence ~.~._~

f~"" before the Court, the arguments of counsel, the pleadings on file and all other materials properly ~ '""" "l before the Court. m~~~>;~as follows: ~ {:;~-?'

The Co,;~' ORDERS that Elizabeth Boulton's Special Appearance is GRANTED and that ~,~... - f,;' Elizabeth .~,?'tilton is not subject to personal jurisdiction in the State of Texas for the allegations,

clai~!>~nd causes o~ actions brought by Plaintiff in the above styled and captioned cause.

Therefore, it is ORDERED, ADJUDGED and DECREED that Plaintiffs claims against

Elizabeth Boulton are DISMISSED for lack of personal jurisdiction.

AUS: I 003945/00 120:478349v I

DC OK 12320 PG629

The Court is of the opinion that Defendants Sand Canyon Corporation, Wells Fargo Bank, N.A., as Trustee for Option One Mortgage Loan Trust 2006-3, Asset-Backed Certificates,

Series 2006-3, and Homeward Residential, Inc. f/k/a American Home Mortgage St;::vicing's '~ •',('' ,.··-\.-+ ... Traditional and No-Evidence Motion for Summary Judgment has merit ar:c: .should be .i~~ /~ {l;·4 GRANTED. ,._:~~

"' ~·"' Therefore, it is ORDERED, ADJUDGED and DECREED that DeJj?iidants Sand Canyon ,..,;·-

...._,..., .~-

Corporation, Wells Fargo Bank, N.A., as Trustee for Option One Mo~~')ge Loan Trust 2006-3, & Asset-Backed Certificates, Series 2006-3, and Homeward Resid~l, Inc. f/k/a American Home

Mortgage Servicing's Traditional and No-Evidence Motior!<tv Summary Judgment be and is til ~ hereby GRANTED, and all claims against Defendants~li'ld Canyon Corporation, Wells Fargo ., J3an¥., N.A., as Trustee for Option. One Mortgage ~Trust 2006-3, Asset-Backed Certificates, ~ Series 2006-3, and Homeward Residential, lnc(.ftk/a American Home Mortgage Servicing are ~ .(; DISMISSED WITH PREJUDICE. This ~r shall constitute a final and appealable judgment .~ that Plaintiff take nothing by his claim<)\11 relief not granted herein is denied. ,. ,. SIGNED on this U dayG'l~ovember, 2012. ··0 ·~ ·~ ~ -~...ttJ> '

2 AUS: !003945/00 120:478349v I

DC BK12J20 PG6JO

AGREED AS TO FORM:

Jo~ ·-<:' 'r

B. David L. Foster ;•; t Lauren M. Fincher . .;~'' ~~~~~ ~ Attorneys for Defendants ;-.. .~J . Elizabeth Boulton, Sand Canyon Corporation, Wells Fargo Bank, .~}~A., as Trustee for Option One Mortgage Loan Trust 2006-3, Asset-Backed Certificates.A>~·ies 2006-3, and Homeward Residential, Inc. f/k/a American Home Mortgage Servicing ::._..e;- ·~v 1§ 1"4, "'~-=' ~"¥

& (J-0 ~ .(J (' ,,""'+{!j

··~

,. . . . . -~.J-

r ;:~~~~>•'

3 AUS: I 003945/00120:478349v I

Cause No. 052212 -·-·-·-·- - -- -- WELLS FARGO BANK, -N.A. AS TRUSTEE }{ JUSTICE COURT FOR OPTION ONE HORTGAGE LOAN }{ TRUST 2006-3, ASSET-BACKED }{ CERTIFICATES, SERIES 2006-3 }{ }{ PRECINCT THREE v. }{ }{ MASS~~D, NEMER AND ALL OCCUPANTS }{ TRAVIS COUNTY, TEXAS

> > > JUDGMENT < < <

On DECEMBER 29, 2011, came to be heard the above entitled and numbered cause . The Plaintiff appeared and announced ready for trial. The Defendant, duly notified did/did no~ appear and announce ready for trial. No Jury was demanded and all issues were submitted to the Court. After hearing and considering pleadings 1 evidence and argument, the Court is of the opinion and finds that the F-laintiff/Defendant is entitled to judgment.

IT IS THEREFORE ORDERED, that the Plaintiff, WELLS FARGO BANK, N.A. AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST 2006-3, ASSET-BACKED CERTIFICATES, SERIES 2006-3 shall not recover from the Defendant, MASSAAD, NEMER AND ALL OCCUPANTS AND SAID DEFENDANT SHALL CONTINUE TO USE AND ENJOY

POSSESSION of the premises at 2408 WILMA RUDOLPH RD, AUSTIN, TX 78748

Signed DECEMBER 29 1 2011.