Christine E. Reule v. M & T Mortgage, M & T Bank Bayview Loan Servicing, LLC, Bayview Financial Trading Group, LP, Bayview Financial LP and Hughs, Watters, Askanase, LLP

ACCEPTED
14-13-00502-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
1/5/2015 11:48:34 PM
CHRISTOPHER PRINE
CLERK

No. 14-13-00502-CV
IN THE COURT OF APPEALS
FOR THE FOURTEEN DISTRICT OF TEXAS FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS HOUSTON, TEXAS
1/5/2015 11:48:34 PM
CHRISTINE E. REULE, CHRISTOPHER A. PRINE
Clerk
Appellant
v.
M & T MORTGAGE, M & T BANK, BAYVIEW LOAN SERVICING,
LLC, BAYVIEW FINANCIAL TRADING GROUP, LP, BAYVIEW
FINANCIAL,LP, AND HUGHS, WATTERS, ASKANASE, LLP
Appellee
__________________________________________________________________
On Appeal from Cause No. 200875636
234 Judicial District Court of Harris County, Texas
th

__________________________________________________________________
APPELLANT’S REPLY BRIEF

CHRISTINE E. REULE
Pro Se
1831 Sherwood Forest #24
Houston, Texas 77043
(713) 365-0535

APPELLANT REQUESTS ORAL ARGUMENT
IDENTITY OF PARTIES AND THEIR COUNSEL

PARTIES COUNSEL
CHRISTINE E. REULE Pro Se
1831 Sherwood Forest #24
Houston, Texas 77043
(713) 365-0535

M& T MORTGAGE, M & T BANK, BAYVIEW Daniel Patton
LOAN SERVICING, LLC, BAYVIEW Scott Patton, P.C.
FINANCIAL TRADING GROUP, LP, 3939 Washington Avenue,
BAYVIEW FINANCIAL,LP Suite 203
Houston, Texas 77007
Telephone: 281-377-3311
Fax: 281-377-3267
Email:
dpatton@scottpattonlaw.com

HUGHES, WATTERS, ASKANASE, LLP C. Ed. Harrell
Hughes, Watters &
Askanase, L.L.P.
Three Allen Center
333 Clay, 29th floor
Houston, TX 77002
Telephone:
(713) 759-0818
Fax: (713)759-6834

RLZ INVESTMENTS Richard A. Battaglia
P.O. Box 131276
Houston, Texas 77219-1276
Telephone No. (713) 521-3570
Fax: (713) 521-5373
Email: rab@rabpc.com

2
Cases
Austin v. Countrywide Homes Loans, 261 S.W.3d 68 (Tex.App.Houston [1st
Dist.] 2008) ............................................................................................................................ 31
Bernard v. Bank of America, N.A., *9, 2013 Tex. App. LEXIS 1045 (Tex. App-
San Antonio, Feb. 13, 2013 ....................................................................................... 15, 16
Bosque Trading Enterprises, Inc. v. Business Loan Cetner, LLC, (Tex.App.—
Waco 2012) ............................................................................................................................ 34
Brescia v. Slack & Davis, LLP (TexApp.-Austin 2010) ................................................ 34
Case Funding Network, LP v. Anglo-Dutch Petro, 264 S.W.3d 38 (Tex.App. –
Houston [1st Dist.] 2007.................................................................................................... 41
Charter Nat'l Bank-Houston v. Stevens, 781 S.W.2d 368, 371 (Tex.App.-Houston
[14th Dist.] 1989, writ denied)........................................................................................ 17
Crider v. Crider, No. 01-10-00268-CV, 2011 WL 2651794, at *5 (Tex. App.-
Houston [1st Dist.] July 7, 2011, pet. denied) (mem. op.) .................................... 26
Employers Cas. Co. v. Peterson, 609 S.W.2d 579, 585 (Tex. App.—Dallas 1980,
no writ).................................................................................................................................... 20
Flenniken v. Longview Bank & Trust Co., 661 S.W.2d 705, 707 (Tex.1983)........ 42
Fort Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 881 (Tex.
2009) ....................................................................................................................................... 33
Fort Brown Villas v. Gillenwater, 285 SW3d 879 (Tex.2009) ................................... 28
Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex.
1994). ...................................................................................................................................... 27
Freyermuth v. Credit Bureau Services, Inc. 248 F.3d 767, 770, (COA-8th Cir.
2001) ....................................................................................................................................... 11
Gainesville Oi & Gas v. Farm Credit Bank, 847 S.W.2d 655, 659 (Tex.App. –
Texarkana 1993, no writ).................................................................................................. 18
Glass v. Carpenter, 330 S.W.2d 530, 537 (Tex.Civ.App.1959) ................................. 32
Glaze v. Chase Home Finance, LLC, 704 F.3d 453, 457 (COA-6th Cir. 2013) ..... 37
Henry v. Chase Home Finance ........................................................................................... 17
Holy Cross v. Wolf, 44 W.W.3d 562 (Tex.2001) ............................................................ 36
Hycarbex, Inc. v. Anglo-Suisse, Inc., 927 S.W.2d 103, 110 (Tex.App.-Houston
[14th Dist.] 1996, no writ). .............................................................................................. 41
In re Saldivar, No. 11-10689, 2013 WL 2452699 (Bankr. S.D. Tex. June 5,
2013) ....................................................................................................................................... 30
Irwin v. Par-Oil Well Servicing Co., 349 S.W.2d 277, 278 (Tex.Civ.App.—
Texarkana 1961, writ ref'd n. r. e.) ............................................................................... 20
Jerman v. Carlisle, McNellie, Rini, Kramer, 130 S.Ct.1605 ....................................... 8
Knight v. Int'l Harvester Credit Corp., 627 S.W.2d 382, 389 (Tex.1982) ............... 42
Leavings v. Mills, 175 S.W.3d 301 (Tex.App.Houston [1st Dist.] 2004, no pet.) 31
Leavings v. Mills, 175 SW3d 301 (Tex.App. – Houston [1st Dist] 2004.................. 29
Lopez v. Munoz, Hockema & Reed .................................................................................... 40
Martin v. New Century Mortgage Co., 377 S.W.3d 79 (Tex.App.-Houston [1st
Dist.] 2012) ............................................................................................................................ 31
Martinez v. Williams, 312 S.W.2d 742, 752 (Tex.Civ.App.—Houston 1958, no
writ) .......................................................................................................................................... 21

3
Mattson v. U.S. West Communications, Inc., 967 F.2d 259, 261 (8th Cir.1997) . 11
Miller v. Homecomings Fin., LLC, 881 F.Supp. 2d 825, 831 (S.D. Tex. 2012 ...... 30
Miller, .......................................................................................................................................... 30
Miller, supra @832 ................................................................................................................. 30
Millet v. JP Morgan Chase, N.A., 2012 WL 1029497, *4 (W.D.Tex. Mar. 26, 2012)
................................................................................................................................................... 31
Morris v. Aguilar, 369 S.W.3d (Texas 2012) .................................................................... 9
Murphy v. Aurora Loan Servs., LLC, 699 F.3d 1027, 1033 (8th Cir.2012 ...... 29, 32
Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App.-Houston [14th Dist.] 2002,
no pet.) .................................................................................................................................... 26
Norwood v. Chase Home Finance LLC, 2011 WL 197874 (W.D.Tex. Jan. 19,
2011) ....................................................................................................................................... 31
Payne v. Hartford Fire Insurance Co., 409 S.W.2d 591, 595 (Tex.Civ.App.—
Beaumont 1966, writ ref'd n. r. e.) ................................................................................ 20
Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam)........................... 9, 26
Peterson v. Black, 980 S.W.2d 818, 823 (Tex.App.-San Antonio 1998). .............. 15
Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135, 139 (Tex. App.—Corpus
Christi 2008, no pet. .......................................................................................................... 17
Shepard v. Boone, 99 S.W.3d 263 (Tex.App.-Eastland 2003) .................................. 31
Stevens v. Charter National Bank – Houston, 781 S.W.2d 368, 371 (Tex.App. –
Houston [14th Dist.] 1989).......................................................................................... 15, 16
Tri-Cities Const., Inc. v. Am. Nat. Ins. Co., 523 S.W.2d 426, 430
(Tex.Civ.App.1975) .............................................................................................................. 32
U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 941 N.E.2d 40, 53 (2011) ........ 31
Univ. Sav. Ass’n v. Springwoods Shopping Ctr, 644 S.W.2d 705, 705 ........... 15, 16
Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997) .............................................. 9, 26
Wieler v. United States Savings Ass’n of Tex., 887 S.W.2d 155, 158 (Tex.App.-
Texarkana 1994, writ denied) ......................................................................................... 18
Wieler, at 160 ........................................................................................................................... 19
Wilson v. Draper & Goldberg, PLLC, 443 F.3d 373 – (4th Circuit 2006) ................ 37
Wind Mountain Ranch v. City of Temple, 333 S.W.3d 580, 581, 54 Tex. Sup.
Ct. J 286. (Tex. 2010) ........................................................................................................ 36
Statutes
15 U.S.C. § 1692a(6) .............................................................................................................. 34
15 U.S.C. § 1692e ..................................................................................................................... 9
15 U.S.C. 692g(b) ...................................................................................................................... 8
15 U.S.C. Section 1692c ....................................................................................................... 33
Civil Practice and Remedies Code ............................................................................... 32, 33
Property Code Sec. 51.002 ................................................................................................... 12
Section 16.035/16.036 of the Civil Practice and Remedies Code .......................... 33
Section 1692g ............................................................................................................................. 9
Section 1692k ............................................................................................................................ 9
Other Authorities
6A C.J.S. ASSIGNMENTS § 132 (2013 ............................................................................ 28

4
Rules
rule 193.6 ............................................................................................................................ 29, 30
Rule 196.3 ................................................................................................................................. 30
TEX. R. CIV. P. 193.6 ............................................................................................................ 30
TEX.R.APP. P. 38.1(f) ......................................................................................................... 5, 22
TRAP 38.1(g) ............................................................................................................................. 22

5
 TERMS AND ABREVIATIONS USED WITHIN THE BRIEF

BFTG Bayview Financial Trading Group, LP

BLS Bayview Loan Servicing, LLC

Brf. Appellant’s Brief filed on September 29, 2014

CR Clerk’s Record

DT Deed of Trust

FDCPA Fair Debt Collection Practice Act, 15 U.S.C. 1692

FE Financial Entities i.e., Bayview Loan Servicing, Bayview
Financial Trading Group, LP, Bayview Financial, LP, M&T
Mortgage, M&T Bank

FEBrf. Financial Entities Response Brief

HWA Hughes Watters Askanase, LLC

HWABrf. HWA and Trustee’s Response Brief filed on December 15,
2014.

MSJ Motion for SJ

RR Reporter’s record

SCR Supplemental Clerk’s Record

SJ Summary Judgment

2CR Second Supplemental Clerk’s Record

TFDCA Texas Fair Debt Collection Act, Texas Finance Code
Chapter 392

Trustees Carolyn Taylor, Sandy Dasigenis, Jeff Leva,
and Audrey Lewis

6
7
 ARGUMENT AND AUTHORITY:

HUGHES WATERS ASKANASE AND THE TRUSTEES’ RESPONSE
BRIEF:

HWA and the Trustee’s arguments are misplaced. (Hereinafter

referred to collectively as “HWA”) HWAbrf8-9, CR87 is page 5 of the

affidavit of Christine Reule. Appellant therefore objects and moves

to strike Appellees’ argument that they filed any response or motion

for SJ as they have no reference to any record before the court.

Appellant’s DTPA claims against HWA and the trustees are for

fair debt collection violations, and the foreclosure sale of her

property. As she correctly noted, HWA and the trustees are debt

collectors under both the state and federal act. See Jerman v.

Carlisle, McNellie, Rini, Kramer, 130 S.Ct.1605. HWA and Trustees

contend that Reule failed to reference the record. This simply is not

true. See page 11 of Appellant’s rewritten brief. Throughout the

statement of facts, Appellate repeatedly referenced the court records

and trial transcripts.

8
 Appellant never waived any argument or failed to brief her

arguments. Contrary to this statement1, "[D]isposing of appeals for

harmless procedural defects is disfavored." Perry v. Cohen, 272

S.W.3d 585, 587 (Tex. 2008) (per curiam) (citing Verburgt v.

Dorner, 959 S.W.2d 615, 616 (Tex.1997)). Instead, "[a]ppellate briefs

are to be construed reasonably, yet liberally, so that the right to

appellate review is not lost by waiver." Id. Appellate courts must

treat the statement of an issue "as covering every subsidiary

question that is fairly included." TEX.R.APP. P. 38.1(f). An appellant

can preserve error "in the body of their appellate brief," even if it is

not separately listed in the notice of appeal or presented as an issue

in the brief. Perry, 272 S.W.3d at 586.

The Texas Supreme Court has recognized that many indigent

parties are pro se. See Morris v. Aguilar, 369 S.W.3d (Texas 2012)

(holding that to require a pro se party to object to a late-filed

contest to an affidavit of indigence in order to preserve error —

something the party is not likely to know to do — is to eviscerate

the protection Rule 20.1(f) is intended to afford.) Reule is

completely indigent and did not chose to be unrepresented. One of
1
See Weeks Marine, Inc. v. Garza, 371 S.W.3d. 157, 162 (Tex. 2012)

9
the issues on appeal is whether or not her attorney should have

been allowed to withdraw. Any errors in failing to comply with the

rules is a direct result of the wrongful withdrawal of her attorney

who promised to likewise handle the appeal. However, the trial

court allowed him to withdraw to the determent of Appellant.

Lastly, if this court were to find that she inadequately brief her

issues as contended by Appellees, then Appellant would show that

this court required her to remove over 5000 words from her original

brief, thus limiting her ability to adequately brief all of her issues.

Appellant did her best, referenced her documents, her evidence,

and her legal arguments.

FAIR DEBT COLLECTIONS CLAIMS:

Next HWABrf argue that SJ for them because the statute of

limitations had run, and no damages. They cite no reference to the

record showing that this argument was presented to the trial court.

Rather, they make this argument on appeal, and never filed a cross-

appeal. Therefore, Appellant’ objects to this argument as being

unsupported and untimely, and not properly before this court. The

10
court should therefore reverse and render on Appellant’s FDCPA

and TFDCA claims.

Even for the sake of argument, the Courts have previously

held that in cases regarding abusive debt collection letters, the date

of the violation of the FDCPA occurs on the date the letter that

allegedly does not comply with the FDCPA's requirements is

sent to the debtor. See Mattson v. U.S. West Communications,

Inc., 967 F.2d 259, 261 (8th Cir.1997), Freyermuth v. Credit Bureau

Services, Inc. 248 F.3d 767, 770, (COA-8th Cir. 2001). The

overwhelming evidence shows that suit was filed against HWA and

the Trustees on April 6, 2009 (CR38). The evidence shows that

HWA and Trustees sent debt collection letters, and notices of

acceleration after that date and within a year of that date (CR571 in

its entirety, 673-701). Each time Appellant request verification of

the debt, and the debt was never verified. See CR571, Ex. A6-A14.

In fact, HWA and the Trustee foreclosed on her property without

providing 30 days notice to cure. Thus, without strict compliance

with Texas Property Code Chapter 51, the foreclosure was wrongful

and it likewise violates both Acts. HWA and the Trustees had

11
previously stated the debt was paid in full (CR64), and 4 years later

foreclosed. This is a direct violation of the Act. Obviously, suit was

filed within the 1 year period under FDCPA and 2 years under

TFDCA and filed just 2 months after February 9, 2009 debt

collection letter HWA and the Trustee sent to her and failed to verify

the debt. See CR673. This is likewise true on the limitations

arguments made regarding the statute act. Any claim prior to

February 9, 2007 would not be covered under FDCPA, however, the

claims made by Appellant against HWA the Trustees were after that

date. Furthermore, HWA and the Trustees never ceased collection

activities after Appellant requested the debt be verified in violation

of 15 U.S.C. 1692g(b). (CR571)

Appellant adduce evidence to support her Fair Debt Collection

Claims. See CR573, 618-625. See Brf.11&83. HWA and the

trustees are specifically named, and what their conduct was i.e.,

failed to verify the debt upon request, and proceeded with the

foreclosure sale of Appellant’s property without verifying the debt;

and trying to collect on a debt that did not exist, causing confusion

as to who owned the debt. Failure to cease all debt activity until

12
such time a debt can be verified is a violation of the act. See

Section 1692g, CR645. It was HWA and the trustees that said the

debt had been paid in full, then over 4 years later, foreclosed on

Appellant’s property. CR64, 667-701. HWA even stated that the

property was not in foreclosure, and then 4 days later, it foreclosed

her property. CR694-695. The references to the record cited by

HWA and the trustees clearly demonstrate that Reule was able to

prove her claims. The HWA and Trustees don’t dispute that they

are debt collectors. See CR 645-700. Those documents clearly

stated they are debt collectors. They also do not dispute that they

failed to verify the debt. They do not dispute the fact that their

notices of acceleration, and who actually owned the debt were

mispresentations2 and caused confusion as to who the owner was,

another violation of the Act. See CR573, 1004. In fact, Reule

specifically references her SJ evidence which contains exhibits

showing the debt collection efforts. HWAbrf cite no record showing

that the claim was time-barred. No reference to document

2
The Fair Debt Collection Practices Act prohibits a debt collector from the use of "any false,
deceptive, or misleading representation or means in connection with the collection of any debt."
15 U.S.C. § 1692e. Section 1692k of the statute allows the consumer to recover statutory or
actual damages for violations of the Act.

13
supporting HWA/Trustees’ claim that the statute of limitations has

run renders any such argument waived.

Brf.P.83-101 specifically discuss the fact that attorneys are

debt collectors, Trustees, and the mortgage service company. She

relates specifically the law, and cites reference to her SJ CR571.

Not only did she brief the law and provide facts and evidence to

support it, but her SJ motion also sets forth the facts and

supporting law, as well as specific violation. See CR621-625 (speaks

directly to the violations).

Damages: Exhibit C in support of her MSJ is the business

records affidavit of Dr. Sadeghi (CR572, CR943)(Verdigo and

physical therapy as a result of lawsuit – support mental anguish

claims, intentional infliction of emotion distress, and FDCPA and

TFDCA claims). See also CR959 (property value of her home at time

of foreclosure). CR943 is the Harris County Property Tax records

reflecting the value of her property at the time of foreclosure. The

fact that she lost her home which was valued at $69,720 at the time

of foreclosure also supported her damage claims. (CR959) To claim

14
she wasn’t damaged and had no evidence to adduce damages is

without merit.

WRONGFUL FORECLOSURE:

HWABrf claims that one must be disposed of possession of her

property, and cites Peterson v. Black, 980 S.W.2d 818, 823

(Tex.App.-San Antonio 1998). However, Peterson actually states:

“the mortgagor is only entitled to such recovery if (1) title to the

property has passed to a third party.” The case is talking about

possession of title to the property, not use of the property. The

notion that wrongful foreclosures requires the property to pass to

another is well established. See Bernard v. Bank of America, N.A.,

*9, 2013 Tex. App. LEXIS 1045 (Tex. App- San Antonio, Feb. 13,

2013, also see Stevens v. Charter National Bank – Houston, 781

S.W.2d 368, 371 (Tex.App. – Houston [14th Dist.] 1989); Univ. Sav.

Ass’n v. Springwoods Shopping Ctr, 644 S.W.2d 705, 705 (Tex. It is

undisputed that title passed to RLZ Investments. (CR870)

The HWAbrf skip over the fact that they have a duty to be a

neutral party in the foreclosure proceedings. CR571, 676-678

15
clearly show that the Trustees were acting as attorneys for FE.

Carolyn Taylor is a partner in HWA, likewise with Ms. Varner.

The duties of HWA & Trustees are well established, and strict

compliance with all notice requirements set forth in the deed of

trust, as well as Property Code Sec. 51.002 are mandatory. The

undisputed fact is no notice to cure was ever given prior to the

7/5/11 foreclosure sale of Appellant’s property, a fact of which is

undisputed. (CR571, 687-701)

It is undisputed fact that Appellant’s property was sold at

auction to RLZ Investment ((which has never filed a brief in this

appeal)(CR870), and title passed to this third party. To recover on

wrongful foreclosure claims, the property in question must

have been sold. Bernard v. Bank of America, N.A., *9, 2013 Tex.

App. LEXIS 1045 (Tex. App- San Antonio, Feb. 13, 2013, also see

Stevens v. Charter National Bank – Houston, 781 S.W.2d 368, 371

(Tex.App. – Houston [14th Dist.] 1989); Univ. Sav. Ass’n v.

Springwoods Shopping Ctr, 644 S.W.2d 705, 705.

To claim that a wrongful foreclosure can only be asserted if

one is evicted from their property after the property was sold to a

third party at an auction files in the face of principles of equity,

16
reason, logic, fairness, and gives the foreclosing entities, and the

parties they represent, a free walk. This proposition further

suggests that no foreclosure legitimately takes place without

evicting the prior owner. This is not logical. It is only logical in the

terms of dispossession of title.

To claim that dispossession of property is equal to eviction

would run afoul of wrongful foreclosure claims, and substantially

change the meaning of title and rights to a property. Regardless,

Appellant testified (RR5:221) that she did not live in her residence

for a period of 4 months due to the foreclosure.

It is further undisputed that the sales price was grossly

inadequate3 because the amount bid at foreclosure was only

$23,000, and the tax appraised value was $69,720, nearly $46,000

less than the value of the property; and the FE instructed HWA &

Trustees to only cover the alleged debt and no more. CR866-867.

HWABrf omit that Henry v. Chase Home Finance deals with an

“attempted” wrongful foreclosure, which is not recognized by Texas

law, and not relevant to this case.
3
Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135, 139 (Tex. App.—Corpus Christi 2008, no
pet.The elements of a wrongful foreclosure claim are: (1) a defect in the foreclosure sale
proceedings; (2) a grossly inadequate selling price; and (3) a causal connection between the
defect and the grossly inadequate selling price. Charter Nat'l Bank-Houston v. Stevens, 781
S.W.2d 368, 371 (Tex.App.-Houston [14th Dist.] 1989, writ denied)

17
 Moreover, in Wieler v. United States Savings Ass’n of Tex., 887

S.W.2d 155, 158 (Tex.App.-Texarkana 1994, writ denied) a case

involving DTPA and wrongful foreclosure Wieler contended that

there was a shortage in the escrow account4, the monthly payment

amount was not correct, and the attorney fees charged to the

escrow (which resulted in an escrow shortage) was not authorized

by the bankruptcy order, note or deed of trust. The trial court

granted SJ in favor of the bank. The court of appeals overruled it

holding that “As to wrongful foreclosure, a person who suffers

loss or material injury because of irregularities in a foreclosure

sale is entitled to maintain a suit for wrongful foreclosure. See

Gainesville Oi & Gas v. Farm Credit Bank, 847 S.W.2d 655, 659

(Tex.App. –Texarkana 1993, no writ). A fact dispute as to the source

of the escrow shortage that ultimately led to foreclosure also

raises questions concerning the regularity of the foreclosure.

Thus, SJ was also improper on the claim for wrongful foreclosure.”

The court further found that D.T.P.A. claims for shortages in the

escrow account was an unconsciousable action or course of action

4
Reule contended that first, there was an overpayment in the escrow account that BLS was required to apply to the
principal as directed; and later, there was a shortage in the escrow account due to the fact that an escrow payment
was sent and never applied. See CR571

18
under the D.T.P.A. Wieler, at 160. Wieler is factually similar to the

present case. There was a dispute in the escrow shortages in

Reule’s account. (CR672 “loan was originated non escrow) First,

there was a dispute that principal only payments were placed in a

“suspended escrow” account5, and later disappeared without any

explanation6. It was never credited against the principal nor

returned to Appellant. Secondly, after taxes were wrongfully paid to

Harris County, Appellant sent a check in the amount of the tax paid

with instructions to repay the escrow shortage, but BLS refused to

credit the account, which lead to an additional the dispute on the

account, balance on the loan, and ultimately the accord and

satisfaction, and later the foreclosure. RR8,P.20-30,32.

To Appellant’s knowledge, HWA never filed any directed verdict

and does not refer to any record so indicating. Therefore, this court

must disregard its arguments for lack of reference to any record.

VIOLATION OF THE LIMINE AND EVIDENCE OF PRIOR
LAWSUITS

The Appellees fail to cite any case that a claim for mental

anguish can open up the doors for prior lawsuits, and only cites

5
CR135-137
6
CR892 appears to indicate the suspended escrow was applied to escrow shortage. (last entry)

19
Evidence Rule 403 in support of its position. However, Rule 403

supports appellant’s positions, which provides “Although relevant,

evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay,

or needless presentation of cumulative evidence.” Long standing

Texas law has already determined that prior lawsuits are irrelevant

and highly prejudical. See Employers Cas. Co. v. Peterson, 609

S.W.2d 579, 585 (Tex. App.—Dallas 1980, no writ). If the evidence

of other transactions between plaintiff and a third party is not

relevant to any issue pleaded in the case it is inadmissible. Evidence

of another claim to show that plaintiff is a “professional litigant” is

improper. See Employers Cas. Co. v. Peterson, 609 S.W.2d 579, 585

(Tex. App.—Dallas 1980, no writ). Irwin v. Par-Oil Well Servicing

Co., 349 S.W.2d 277, 278 (Tex.Civ.App.—Texarkana 1961, writ ref'd

n. r. e.); see Payne v. Hartford Fire Insurance Co., 409 S.W.2d 591,

595 (Tex.Civ.App.—Beaumont 1966, writ ref'd n. r. e.). Employers

also argues that this evidence was admissible because it bears on

Peterson's credibility as a witness. The fact that Peterson made

one prior similar claim does not bear on his truthfulness.

20
Furthermore, it was inadmissible if it was an attempt to show

claims-mindness of the plaintiffs. See Martinez v. Williams, 312

S.W.2d 742, 752 (Tex.Civ.App.—Houston 1958, no writ).

Prior lawsuit claiming mental anguish are not admissible for a

jury. This is no different that a person having a prior accident. If

the injuries are the same, then evidence of the prior injury is put

into evidence, but the facts and circumstances i.e., claim and/or

lawsuit, are not relevant. Appellees never argued that the prior

claims involved mental anguish claims, rather, they argued that she

had 14 lawsuit and couldn’t remember some of them. RR7:66

David Page, Juror No. 10, testified that the jury was prejudiced by

the prior lawsuit and thought that Appellant was only in it for the

money. CR1806-7. Furthermore, there was a mischaracterization

of the lawsuits. Appellees claimed that there was 14 lawsuit and 14

appeals. That was a falsehood. One of the cases involved

Appellees homeowner’s association which went through several

courts and several appeals and span over 10 years, but it certainly

did not amount to 14 cases and 14 appeals. Appellees

intentionally mislead the jury in a desperate attempt to prejudice

them because the evidence clearly supported Appellant’s claims.

21
FE claimed Appellant was misleading the jurors on that issue.

RR5:267 FEs’ characterization of the lawsuits and false claims was

solely designed to prejudice the jury as stated by David Page

(CR1807).

Even the Jurors objected to some of the comments and

misleading evidence. CR5:106-107, 272. It was clear that the

entire line of questions was for nothing more than to prejudice the

jury, and FE was successful in doing that. But for this prejudicial

evidence, the jury would have rendered a very different verdict. As

David Page states, the jury found against Appellant solely based

upon these prior lawsuits. There was no evidence that showed that

stress from prior lawsuits caused or contributed to any mental

anguish claims, and Appellees cite nothing in the record to support

its claims. Rather, they cite RR3, P. 50-65, which clearly shows the

objections made by Appellant and a great discussion regarding the

prejudicial nature of such evidence. It does not show that any

testimony opened the door. Appellees claims that the evidence

showed may have been mental anguish claims in other lawsuit that

attributed to the present claims is not the same as showing it. The

testimony was far too prejudicial to have allowed it, and the court

22
was wrong in allowing its introduction over the motion in limine

and overrule Appellant’s objections.

FE doesn’t get it both ways. First it claims that the business

records affidavit of Dr. Sadeghi, which proved up her mental

anguish claims, was rightfully excluded. FE then claims that prior

lawsuit claims might show that other mental anguish claims

contributed to her mental anguish claims. The business records

affidavit and attached records clearly foreclosed that notion.

(CR943,1234; RR8D:57) The record clearly demonstrated that prior

to the mortgage lawsuit and the foreclosure proceedings, Appellant

had no Vertigo or stress (which required physical therapy), and the

record clearly denote that the mortgage lawsuit was the cause of the

Vertigo and stress so severe it required physical therapy. (CR572,

CR943).

Contrary to HWAbrf claims, Appellant specifically objected to

introduction of her prior lawsuits. RR3:50-64. RR3:40 judge

overruled objections that lead to the motion in limine being violated.

WITHDRAWAL OF APPELLANT’S COUNSEL:

23
 HWA, Trustees and FE have no standing to argue any merits

of her counsel’s motion to withdraw. They have no judicable

interest in Appellant’s counsel’s representation of her or his

withdrawal. Therefore, Appellant objects to these arguments and

requests that the court disregard them. Furthermore, although

HWA/Trustees references the court docket, Reule disputes that

what is claims is true. The stated grounds for withdrawal were that

Appellant had allegedly retained new counsel (CR371), which simply

was not true. There was overwhelming evidence to support the fact

that no new counsel had been retained, and none ever appeared in

this case. Appellant tried several times but could not find another

attorney to help her, she had no money to pay an attorney, and G.P.

Matherne had previously represented her pro bono, and promised

to handle any appeal—pro bono. There was no conflict between

Appellant and her counsel, and an attorney and his client can

disagree on certain issues and it’s not grounds to allow a

withdrawal. The substantial harm done to Appellant as a result of

the withdrawal was far greater than any alleged disagreement

between her and her attorney. GP Matherne was not an indentured

servant, he had agreed to represent Appellant Pro Bono. Any

24
defects in the case, evidence, trial and appeal are a direct result of a

pro se litigants lack of knowledge, and a trial court allowing her pro

bono attorney to withdraw without good cause. The withdrawal

devastated Appellant’s case. The case should be reversed and

retried due to this abuse of discretion and otherwise incurable

error.

THE FINANCIAL ENTITES RESPONSE:

First, FE did not file a cross-appeal, and their issues presented

for the appeal should not be considered i.e., jury finds, arguments

not present in trial court. The only issues that can be addressed

are those raised by Appellant. Appellant objects to the cross-

appeal. The focus of FEs’ brief appears to be the trial, and it skips

over the fact that the SJs should have and would have precluded

the the trial, and the only thing the jury should have considered

was Appellant’s damages. FE also fails to reference any documents

in support of its arguments. Had the court properly granted MSJ, it

may have put the parties in a position to settle and no trial would

have been necessary.

Appellant also objects to Appellees statement of facts at page

19 wherein they claim that she agreed that when she signed the

25
note, she agreed to repay the Note. This is a misstatement of facts,

as the court well see below. There was no evidence that BLS was in

possession of any Note signed by Appellant.

Appellant also objects to the Dx reference. Although there’s an

explanation to the Dx, not one single Dx references the Volume No.,

or page number where it can be found. Facts pertinent to the issue

must be supported by the record. TRAP 38.1(g). The Dx reference

does not support the record, and this court is not required sift

through the record without guidance from the party to find support

for a party's bare assertion of error."7 Crider v. Crider, No. 01-10-

00268-CV, 2011 WL 2651794, at *5 (Tex. App.-Houston [1st Dist.]

July 7, 2011, pet. denied) (mem. op.); see Nguyen v. Kosnoski, 93

S.W.3d 186, 188 (Tex. App.-Houston [14th Dist.] 2002, no

pet.) ("This Court has no duty to search a voluminous record

without guidance from Nguyen to determine whether an assertion of

reversible error is valid."). "[E]rror may be waived by inadequate

7
This is especially true when the party is represented by counsel. Its fundamentally unfair to
require pro se litigants to know how to reference their evidence in a concise manner, and
appellate briefs are to be construed liberally, so the rights to appellate review is not lost by
waiver. Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam) (citing Verburgt v.
Dorner, 959 S.W.2d 615, 616 (Tex.1997)). TEX.R.APP. P. 38.1(f).

26
briefing." Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d

279, 284 (Tex. 1994). For these reasons, Appellant objects to the

Dx reference and requests that his court not consider the reference,

and acknowledge that those arguments were waived.

Also, many of the references to the record does not state what

the Financial Entities claims it states, nor does FE reference any

evidence in support of its arguments.

The FEs does not properly address in their brief the sj motion,

rather it focus on the trial. SJ was originally granted in Appellant’s

favor on expiration of statute of limitations and break in chain of

title. It was later overruled by the trial court based upon new

undisclosed theories (new default), alleged expert witnesses (JoAnn

Snyder) and witness (Gerald Truebe). Appellant timely objected and

moved to exclude those new theories and witnesses. CR1096-1221,

and CR1080. FE NEVER FILED MOTION FOR LEAVE8 OR

OTHERWISE DEMONSTRATED THAT GOOD CAUSE EXISTED TO

ALLOW THE NEW EVIDENCE AND WITNESSES AFTER THE SJ

HAD ALREADY BEEN GRANTED IN APPELLANT’S FAVOR, and
8
193.6(b) places burden on party seeking to introduce evidence to demonstrate good cause and lack of surprise and
prejudice. Section (c) a court can continue the proceeding to allow the late evidence. However, in this case, the SJ
had already been granted in Appellant’s favor, and the motion for reconsideration was too late to provide new
evidence without demonstrating good cause. FE never attempts to argue good cause, nor directs this court to any
evidence showing that any such arguments were made.

27
does not refer the court to any evidence demonstrating that it

complied with the Rules of Civil Procedure, Rule 193.6, or that it

made any argument in the trial court on good cause existing and

lack of prejudice. Rather, FE takes the position that Rule 193.6

only applies to trials, and not SJs, ignoring Supreme Court

precesendence to the contrary. Fort Brown Villas v. Gillenwater,

285 SW3d 879 (Tex.2009)(holding “In this premises liability case,

we decide whether Texas Rule of Civil Procedure 193.6, which

provides for the exclusion of evidence due to an untimely response

to a discovery request, applies in a SJ proceeding. We hold that it

does and, therefore, reverse the court of appeals' judgment.”).

(Emphasis added)

The trial court overruled her objections and as such error or

otherwise abused its discretion. Exclusion under Rule 193.6 is

mandatory.

BAYVIEW DOES NOT OWN THE DEED OF TRUST AND THE
JURY FINDING CAN BE REVERSED BECAUSE THE GREAT
WEIGHT OF THE EVIDENCE SHOWING THAT BAYVIEW LOAN
SERVICING DOES NOT OWN THE NOTE AND DEED OF TRUST:

BLS contends that it owns the deed of trust and note because

the jury said so. The evidence clearly showed the mortgage (note

28
and deed of trust) was purchased by Bayview Financial Trading

Group (hereinafter “BFTG”) RR8E:479, a completely different entity

from BLS. BLS’ own records, CR898-899 clearly denote that there

was no assignment to BLS. Nowhere in the chain of title or the

chain of endorsements does BFTG appear. (CR571. Leavings v.

Mills, 175 SW3d 301 (Tex.App. – Houston [1st Dist] 2004) is on

point. In Leavings, there was no evidence show the chain of title of

the Leavings' note from "builder" to himself. Like in Leavings,

supra, there is no evidence to show the chain of title from

FirstCapital Bank to BLS. The Mortgage Loan Purchase Agreement,

(CR571, RR8E:47) shows the mortgage was sold to BFTG which is

conspicuously missing in both the chain of title and chain of

endorsement. This is a fatal defect in the chain of title10. As a

matter of law, BLS did not and could not have owned the Note and

Deed of Trust at anytime whatsoever.

This was all resolved by the court’s original ruling on the SJ

which should never have been overturned by the trial court. FE

9
September 14, 2011, the Business Records Affidavit of Prosperty Bank f/k/a FirstCapital Bank, SSB was filed with
the trial court, which contained the exact same Mortgage Loan Purchase Agreement.
10
Murphy v. Aurora Loan Servs., LLC, 699 F.3d 1027, 1033 (8th Cir.2012 (recognizing that
mortgagors can defend against foreclosure by establishing a fatal defect in the purported
mortgagee's chain of title).

29
skips over these facts. The PSA set forth all parties that were

supposed to appear in the chain of title. Brf.29.

APPELLANT HAD STANDING UNDER PSA TO CHALLENGE IF
ASSIGNMENTS WERE VOID AB INITIO

Appellant never sued for breaches of the PSA, rather, she

challenged BLS’ standing to foreclosure because the assignments

were void ab initio. To claim that Appellant cited no Texas case law

on her PSA arguments is incorrect. Brf.33&53, cites Miller v.

Homecomings Fin., LLC, 881 F.Supp. 2d 825, 831 (S.D. Tex.

2012) and In re Saldivar, No. 11-10689, 2013 WL 2452699, *4

(Bankr. S.D. Tex. June 5, 2013); (holding New York trusts

(substantively the same as the ones at issue here) were not the

owners of notes when the notes were purportedly transferred to the

trusts after their startup dates. FE does not dispute this fact.

Appellant has a right to challenge any defect in chain of title, or

defect in who actually owns and holds the Note, or any other issue

which would rendered the assignment void ab initio, including

evidence of which entity was required to be in the chain of title.

In Miller, supra @832, the court specifically found:

30
“Texas courts routinely allow a homeowner to
challenge the chain of assignments by which a party
claims the right to foreclose. See Martin v. New Century
Mortgage Co., 377 S.W.3d 79 (Tex.App.-Houston [1st
Dist.] 2012); Austin v. Countrywide Homes Loans, 261
S.W.3d 68 (Tex.App.Houston [1st Dist.] 2008); Leavings
v. Mills, 175 S.W.3d 301 (Tex.App.Houston [1st Dist.]
2004, no pet.); Shepard v. Boone, 99 S.W.3d 263
(Tex.App.-Eastland 2003); Priesmeyer v. Pacific Southwest
Bank, F.S.B., 917 S.W.2d 937 (Tex.App.-Austin 1996).
Federal district courts in this state have also entertained
chain of title claims by mortgage debtors challenging
foreclosure proceedings. See Millet v. JP Morgan Chase,
N.A., 2012 WL 1029497, *4 (W.D.Tex. Mar. 26,
2012);Norwood v. Chase Home Finance LLC, 2011 WL
197874 (W.D.Tex. Jan. 19, 2011). Nor is Texas alone
among non-judicial foreclosure states in permitting such
suits. U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 941
N.E.2d 40, 53 (2011).

After all, the argument apparently goes, the Millers
owe the money to somebody. In truth, the potential
prejudice is both plain and severe — foreclosure by
the wrong entity does not discharge the homeowner's
debt, and leaves them vulnerable to another action on
the same note by the true creditor. Banks are neither
private attorneys general nor bounty hunters, armed
with a roving commission to seek out defaulting
homeowners and take away their homes in
satisfaction of some other bank's deed of trust.
MasterCard has no right to sue for debts rung up on a
Visa card, and that remains true even if MasterCard
has been assigned the rights of another third party
like American Express. Unless and until a complete
chain of transactions back to the original lender is
shown, MasterCard remains a stranger to the original
transaction with no claim against the debtor.

31
 BLS DID NOT HAVE AUTHORITY TO FORECLOSE

(CR571, specifically CR960), Ms. Joyce Cauthen, Appellant’s

mortgage expert, also testifies to the chain of title and chain of

indorsement that likewise support Appellant’s claim that BLS has

no right to foreclose.

BLS continues to claim that Appellant has no standing with

reference to the PSA. This argument is misplaced. Appellant is not

attempting to enforce the terms of the instruments of assignment;

to the contrary, she urges that the assignments are void ab initio,

and New York law controls. (CR571) Texas courts follow the

majority rule that the obligor may defend "on any ground which

renders the assignment void." 11

Appellant has repeatedly demonstrated that there is a clear

break in the chain of title, and Appellant’s SJ should never have

been reversed by the trial court. See arguments on

Tex.R.Civ.P.193.6 motion to exclude below.

11
Tri-Cities Const., Inc. v. Am. Nat. Ins. Co., 523 S.W.2d 426, 430
(Tex.Civ.App.1975) (citing Glass v. Carpenter, 330 S.W.2d 530, 537 (Tex.Civ.App.1959)); see
also, e.g., 6A C.J.S. ASSIGNMENTS § 132 (2013) ("A debtor may, generally, assert against an
assignee ..., any matters rendering the assignment absolutely invalid ..., such as[] the
nonassignability of the right attempted to be assigned, or a prior revocation of the
assignment.");Murphy v. Aurora Loan Servs., LLC, 699 F.3d 1027, 1033 (8th
Cir.2012 (recognizing that mortgagors can defend against foreclosure by establishing a fatal
defect in the purported mortgagee's chain of title).

32
 Appellant has repeatedly stated that the note she signed was

in purple ink. The jury specifically found that the parties did not

agree to the purple ink note. (CR1580)(CR1563 requested if BLS

was the owner and holder of Appellant’s note, but the trial court

rejected Appellant’s question) There was never any other question

submitted to the jury regarding whether or not BLS was the owner

and holder of the note. The court rejected every single one of

Appellant’s jury instructions (CR1152-1568) If there was no

agreement to a purple ink note, no proof that BLS had any Note

signed by Appellant, and no right to enforce a Note they do not own

or are in possession. There was no question regarding any other

note and any arguments regarding any other note was waived by

FE. A party not in possession of the original Note cannot foreclose

on a property. This is well established law.

APPLICATION OF RULE 196.3 IS CORRECT AS ALLEGED BY
APPELLANT.

The Texas Supreme Court squashed that idea in Fort Brown

Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 881 (Tex.

2009) (rule 193.6's exclusionary sanction pertains to SJ, and is

automatic unless one of the rule's exceptions applies). See also

33
Bosque Trading Enterprises, Inc. v. Business Loan Cetner, LLC,

(Tex.App.—Waco 2012) (TEX. R. CIV. P. 193.6. Rule 193.6 of the

Texas Rules of Civil Procedure applies to SJ proceedings.); Castillo

v. Mizpah Residential Care, (Tex.App.—Corpus Christi 2014) (SJ –

193.6 exclusionary rule mandatory); Brescia v. Slack & Davis, LLP

(TexApp.-Austin 2010)(SJ – excluded two expert per Rule 196.3 due

to untimely designation).

FE never dispute that authority; never cite any authority in

support of its position.

FE contends that she references no evidence that FE failed to

disclose within 30 days before trial, is irrelevant as the motions to

exclude relate specifically to the motions for SJ and exclusion of the

untimely, undisclosed new legal theory and witnesses. The Texas

Supreme Court has already stated that the rule 193.6 applies to

SJs. Fort Brown Villas, supra.

FE failed to properly brief this issue and therefore has waived

any argument. The court should reverse and render on the issue of

expiration of statute of limitations and break in chain of title to

restore the court’s original ruling on those two specific issues.

(CR1042). Appellant’s objections to undisclosed legal theories and

34
witnesses should be sustained, and she requests that this court

reverse and rendered in her favor.

PSA ARGUMENTS AND THE APPLICATION OF NEW YORK LAW
WERE NOT WAIVED.

First, the PSA argument are part of the motions for SJ in the

trial court below. (CR571) The trial court unilaterally rejected each

and every proposed Jury instruction Appellant made to the court

without proper consideration, and was a clear abuse of discretion.

The court never stated why they rejected it to allow Appellant an

opportunity to correct and resubmit it, the Court just decided that

all jury instruction submitted by Appellant were incorrect.

(RR6:186-235; RR7) FE completely skip over the SJ arguments on

the PSA. Appellant tried to submit questions, but the court refused

to allow her to do so. This was a clear abuse of discretion.

The jury never should have considered the PSA arguments

because the SJ on this issue should have been granted in

Appellate’s favor. FE doesn’t dispute this fact nor brief it, and

therefore has waived argument. The SJ (CR571) evidence

established the fact that Appellant had standing under the PSA,

and the court has overruled FE standing argument at least three

35
times. RR4:31-33. FE do not argue the SJ or evidence on her

FDCPA and TDFCA claims, and therefore have waived any

arguments. Accordingly, this court should reverse and render in

Appellant’s favor and allow a jury to consider her damages

THE LOAN WAS NEVER REINSTATED AFTER ACCELERATION
AND THE FOUR YEAR STATUTE OF LIMITATIONS HAD RUN:

FEs’ arguments are wholly without merit and unsupported by

law and the record. Appellant should not be required to argue this

because the SJ was originally granted in her favor, and later

overturned by the trial judge based upon undisclosed legal theories

and undisclosed witnesses (see above re: 193.6 exclusion), and

such evidence was improperly included and relied upon in

overturning the original SJ. However, FE clearly overlooks, and

make no reference to the Supreme Court’s decision in Wind

Mountain Ranch v. City of Temple, 333 S.W.3d 580, 581, 54 Tex.

Sup. Ct. J 286. (Tex. 2010) dealing directly with notice

requirements and compliance with Civil Practice and Remedies

Code 16.036. FE’s reliance on Holy Cross v. Wolf, 44 W.W.3d 562

(Tex.2001), is misplace. See CR696-699 for further argument.

36
The Texas Supreme Court said that Section 16.035/16.036 of the

Civil Practice and Remedies Code specifically applies to this

situation. No new default was ever disclosed, and JoAnne Snyder

and Gerald Truebe were never identified in response to discovery,

and thus, were required to be excluded as

evidence/witness/theories in response to Appellant’s SJ.

FAIR DEBT COLLECTION AGAINST FE

FEbrf.47 states that she waived her claims regarding the

phone calls. Appellant filed a MSJ (CR571) establishing those

claims and specifically references those claims at Brf.81. Their

arguments have no merit. In her affidavit in support of her MSJ at

CR651, she specifically includes those phones and the dates and

times. This is irrefutable evidence of violations of 15 U.S.C. Section

1692c, and FE doesn’t dispute these facts. FE claims they are not

debt collectors. Wilson v. Draper & Goldberg, PLLC, 443 F.3d 373 –

(4th Circuit 2006) clearly states that they are. It is undisputed that

BLS allegedly obtained the mortgage after the accord, and alleged

default. See Glaze v. Chase Home Finance, LLC, 704 F.3d 453, 457

(COA-6th Cir. 2013) (The Act's definition of "debt collector" consists

37
of a general definition followed by a number of exceptions. See 15

U.S.C. § 1692a(6). One exception is relevant here: the term "debt

collector" does not include any person attempting to collect

"any debt owed or due or asserted to be owed or due another to the

extent such activity ... concerns a debt which was not in default

at the time it was obtained by such person." Id. § 1692a(6)(F)(iii).

It is undisputed there was an alleged default at the time BLS

acquired the debt. (CR716-5/2/2007 notation – BLS was

SERVICER) (CR571) (CR898 (2/27/2009) last notation, CR899-

2/23/2009 – no assignment). This evidence clear shows that BLS

was the servicer, and later allegedly became the hold of the Note.

This is undisputed evidence that as loan servicer, it was subject to

the act, and because the alleged debt was allegedly in default at the

time BLS became the alleged holder of the alleged Note, it continued

to be subject to the FDCPA. TFDCA stating anyone person

collecting a debt, meaning, an individual collecting a debt on behalf

of itself.

BREACH OF CONTRACT CLAIM AND ACCORD AND
SATISFACTION

38
 FEs’ arguments have no merit. Although Appellant did admit

to a breach, the breach was mischaracterized because Appellant

was not allowed to discuss the accord and the reasons for it. Yes,

Appellant stopped paying because she made a full and final

payment on the account, which was accepted and never repudiated

during the repudiation period, and FE being told repeatedly about

the accord. All FE had to do was return the check. To characterize

it as an admission is simply wrong. This is a manipulation of the

judicial process, the facts, and unconstitutional restraints by

refusing to allow a party to fully testify as to the accord and provide

an explanation as to why payments stopped. RR1-7, and the

Limine Order signed by the Court. Appellant has requested this

already, but does not have the 2SCR to reference.

FE makes no reference to any document to support its claim

that in the trial court in response to Appellant’s MSJ or anywhere

that the parties had no “legitimate dispute” and/or “bona fide

dispute”, to satisfy the elements of the accord. This is simply false.

See CR72 (specifically CR135-159, 164-175). The failure to apply

principal only payments to the principal amount and diverting

39
those payment by placing them in a “suspended escrow account”

(which was not required by the loan) is clear evidence of the

dispute. Paying taxes that were not owed was also a dispute.

Failing to credit the escrow upon return of escrow funds, is a

further dispute. Continuing to make charges against the account

in excess of the principal and taxes, also created a dispute.

Appellant also testified by affidavit that she made numerous calls

prior to letters trying to resolve this matter, to no avail. Charging

insurance and refusing to credit it when proof was sent showing it

was covered by the Homeowner’s association, created a dispute.

The account was never credited until years into the litigation

(CR722), and just before trial. This is overwhelming evidence that

there was a dispute.

FE cite Lopez v. Munoz, Hockema & Reed, in support of its

position it was unaware of any dispute. The case does not support

that position. The case involved a contingency fee, in which a case

settle and the contract provided for 40% if prior to appeal, after

appeal, it’s 45% contingency fee. The case was tried and later

settled before an appeal was perfected. At the settlement

40
negotiations, it mistakenly called for a 45% contingency fee. The

Lopez’s later sued to recover the 5% fee. The Supreme Court found

that because there was no dispute, no valid accord took place. (T]he

very existence of the dispute is the consideration for the accord and

satisfaction. Hycarbex, Inc. v. Anglo-Suisse, Inc., 927 S.W.2d 103,

110 (Tex.App.-Houston [14th Dist.] 1996, no writ).

FE claims the check constituting the accord is illegible. A bad

copy of a check provided by Appellant’s bank does not make it

illegible and appellant has no control over the quality of the copy.

The check clearly states it’s being tendered on the disputed

account. Appellant’s has neuromuscular disease which has caused

her handwriting to diminish over the years, but the check is legible.

Good faith tender does not require a certain percentage of the

debt to be tendered, and FE cites no authority to support its claims.

No Texas case has ever said that a certain percentage of the debt

must be paid in order to constitute good faith. See Case Funding

Network, LP v. Anglo-Dutch Petro, 264 S.W.3d 38, 53 (Tex.App. –

Houston [1st Dist.] 2007) (defining good faith pursuant to Section

3.311). Appellant never routinely places accord and satisfaction

language on her checks, and therefore she acted in good faith.

41
 DTPA AGAINST APPELLEES

FE and HWA/Trustees have cited no case that contradict the

Texas Supreme Court holding in Knight v. Int'l Harvester Credit

Corp., 627 S.W.2d 382, 389 (Tex.1982) and Flenniken v. Longview

Bank & Trust Co., 661 S.W.2d 705, 707 (Tex.1983), which are

directly on point. Also, Weiler, supra is on point as it deals

specifically with a mortgage foreclosure. The Supreme Court makes

it clear that Reule is a consumer for the purpose of D.T.P.A., see

Knight and Flenniken, supra. See also Weiler, supra @160

(wrongful charges against escrow account, unauthorized payments

to lawyer fees against mortgage loan)

APPELLANT HAS NOT WAIVED ANY CLAIMS

The court rejected each and every single one of Appellant’s

jury instruction without explanation or opportunity to cure. Had

appellant’s counsel not been allowed to withdraw, Appellant would

have had any issue properly preserved (although she believes the

MSJ took care of all the issues, and her submission of the jury

instruction preserved errer). She did present arguments on the

Quiet title case, in both her SJ (CR571) and at trial, and the court

42
would not allow her to present not one single jury instruction. She

has preserved all of her SJ arguments, on each of her claims.

PRAYER

Appellant requests that her case be reversed, rendered and/or

remanded to the trial court, and for such other and further relief as

the court deems just and proper.

Dated: January 5, 2015. Respectfully submitted,

/s/Christine E. Reule
Christine E. Reule
1831 Sherwood Forest #24
Houston, Texas 77043

By my signature above, I hereby certified that a true and correct copy of this
brief has been forwarded to all interested parties.

Word Court: 7,289

43