ACCEPTED
13-14-00644-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
7/14/2015 5:40:36 PM
CECILE FOY GSANGER
CLERK
No. 13-14-00644-CV FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
7/14/2015 5:40:36 PM
CECILE FOY GSANGER
IN THE COURT OF APPEALS Clerk
FOR THE THIRTEENTH DISTRICT OF TEXAS
AT CORPUS CHRISTI & EDINBURG
_________________________________________________
LAREDO NATIONAL BANK D/B/A BBVA COMPASS BANK
Appellant,
v.
MYRNA ELIZABETH DE LUNA MORALES,
Appellee.
On Appeal from the 107th Judicial District Court of Cameron County, Texas, the
Honorable Benjamin Euresti, Jr., Presiding
APPELLANT’S REPLY TO BRIEF OF APPELLEE
Selim H. Taherzadeh Michelle Peritore
Taherzadeh, PLLC Taherzadeh, PLLC
State Bar No. 24046944 State Bar No. 24088212
st@taherzlaw.com mp@taherzlaw.com
5001 Spring Valley Rd., Suite 1020W 5001 Spring Valley Rd., Suite 1020W
Dallas, Texas 75244 Dallas, Texas 75244
Tel. (469) 729-6800 Tel. (469) 729-6800
ATTORNEYS FOR APPELLANT
July 14, 2015
TABLE OF AUTHORITIES
Cases
Aguilar v. Weber, 72 S.W.3d 729 (Tex.App.- Waco 2002)
Pinnacle Premier Props., Inc. v. Breton, 447 S. W.3d 558 (Tex. App.-Houston [14th
Dist.] 2014)
i
SUMMARY OF REPLY
Appellee filed her brief five months and twenty days after the initial
deadline established by the Texas Rules of Appellate Procedure. Nevertheless, her
brief is filled with distortions of the facts, misrepresentations of the law, and an
incorrect claim of mootness due to her unexplainable delay.
APPELLEE’S MISREPRESENTATION OF FACTS
A. The Parties
Appellee’s misrepresentation of the facts begins even before her “Statement of
the Facts”. Appellee cannot even properly identify the Appellant. Appellee
wrongfully lists counsel for Appellant, Selim H. Taherzadeh, as an Appellant since
“[b]oth second amended and prior plaintiff’s pleadings suggest that he is a
defendant.” Appellee’s Brief, page iii. However, none of her pleadings name Selim
H. Taherzadeh named as a Defendant nor does Texas recognize “suggestions of
defendants”. It is inconceivable that the Appellee, the plaintiff in the underlying
action, cannot identify who are the defendants in her own lawsuit, but it continues a
pattern of mistruths used for no other apparent purpose than confusion.
B. Appellee’s Attempts to Sale the Property
Appellee lists in her statement of facts that she “had arranged more than once
for the property to be sold but due to intransigence by Appellant Compass Bank, and
Appellant’s counsel, and perhaps misconduct, Appellee was not able to cure an
alleged deficiency, nor to effect a sale of her property.” Appellee’s Brief, page 3.
This is a gross misstatement of the facts pursuant to the testimony and documents
offered by Appellee herself. The simple undisputable facts are these. Appellee was
in default. The property in question was scheduled for foreclosure sale on March 4,
2014. Prior to the foreclosure sale, Appellee, through her counsel, requested the
Appellant postpone the sale for the following month as she had a buyer but the
closing would not occur for a few weeks. Appellant agreed to postpone the
foreclosure sale of the property until April. The proposed sale by Appellee did not
occur because her “buyer” got cold feet.
The Friday prior to the April foreclosure sale, Appellee’s counsel once again
reached out to Appellant saying that there is another potential purchaser and
requesting a second postponement since the closing of the second contract would
again occur after the rescheduled foreclosure sale. This second request for
postponement was denied and the foreclosure sale went forward as noticed. Appellee
testified that she neither had the funds to reinstate or payoff the loan at the time of the
foreclosure sale. These facts are undisputed. These facts are based off the evidence
presented by Appellee’s Counsel and the testimony of Appellee herself. There are no
other factual allegations of wrongdoing other than the failure to postpone a
foreclosure sale for a second time for a contract that may or may not go through. To
call the failure to postpone a foreclosure sale for a second time “intransigence” or
“misconduct” is a clear misstatement of the facts.
C. Appellee’s Claim that she did not receive Notice of Sale
For the first time in her brief, Appellee is now claiming that she did not get
notice of the foreclosure sale. Once again this is a ridiculous claim by Appellee as:
1) she herself introduced the notice of foreclosure sale as evidence at the
Temporary Injunction Hearing, 2) the clear evidence is that the foreclosure sale
was rescheduled to April 1, 2014 at her request, and 3) it has subsequently become
a deemed admission that she received the notice of foreclosure sale. Appellant can
come up with no other explanation for the statement that Appellee claims she
“never received notice of sale” other than it is an additional misstatement of the
truth for the sole purpose of causing confusion as to the issues before this Court.
ARGUMENT
Standard of Review
Appellee argues in her brief that the standard of review when dealing with
injunctive relief is abuse of discretion. However, as clearly explained by a case
cited by Appellee, Courts “will apply a de novo standard of review when the issue
turns on a pure question of law.” Pinnacle Premier Props., Inc. v. Breton, 447
S.W.3d 558, 562 (Tex. App.—Houston [14th Dist.] 2014). Questions such as “the
effect of the tenant-at-sufferance clause in the deed of trust….and whether
appellees, under the undisputed facts, had an adequate remedy at law through their
wrongful foreclosure claim” are questions of law that the Appellate Court can
review de novo. Id. at 563. Thus, the issues of whether the trial court should have
continued to enjoin the Appellant when the deed of trust contained tenant at
sufferance language, whether the causes of action put forth by Appellee support
injunctive relief, or whether she had an adequate remedy at law are all properly
reviewed de novo.
No Adequate Remedy at Law
Appellee claims that she has an irreparable injury since it is the loss of her
home. The Court in Pinnacle, a case cited by Appellee in her own brief, says the
exact opposite with facts nearly identical to this case. Appellee’s Brief, page 19.
“Here, the foreclosure sale has already occurred, and appellees’ available remedies
for wrongful foreclosure are money damages or rescission of sale….[w]e conclude
as a matter of law that the trial court erred in granting the temporary
injunction….appellees have an adequate remedy at law through their wrongful
foreclosure claim.” Id. at 565-566. It remains a mystery how Appellee could
argue no adequate remedy at law when a case she herself cites, without
distinguishing, clearly states the opposite conclusion as a matter of law.
Evidence of a Title Dispute
Appellee argues that mere evidence of a title dispute is enough to deprive the
Justice Court of jurisdiction even if there is tenant at sufferance language in a deed
of trust. Amazingly enough, Appellee cites a case that concludes the exact
opposite to support her position. The Court in Aguilar v. Weber specifically found
that because the underlying deed of trust did not have tenant at sufferance
language, the issue of title needed to be determined before the Justice Court could
proceed; and thus distinguished the case from other cases in which the eviction
action in the Justice Court could proceed. Aguilar v. Weber, 72 S.W.3d 729 (Tex.
App.-Waco 2002). “We agree that a forcible detainer action must be based on a
landlord-tenant relationship…the contract also did not provide that the Aguilars
would become tenants at sufferance...” Id. at 735. Appellee freely admits that the
deed of trust that was the basis for the foreclosure included tenant at sufferance
language. Even a first year law student would understand that the Aguilar case
actually supports Appellant’s position that since the deed of trust included tenant at
sufferance language than the right to immediate possession can be tried in the
Justice Court without interruption. Once again, it is unclear why Appellee
attempts to ignore the actual rulings in the cases she cites other than an attempt to
deceive the Appellate Court. As the Court in Pinnacle, cited once again by
Appellee for the opposite conclusion, correctly noted, “[w]hen a party to be
evicted is subject to a tenant-at-sufferance clause and the party seeking the
possession purchased the property at a foreclose sale….defects in the foreclosure
process are not relevant to possession.” Pinnacle at 564.
Appellee Had No Probable Right to Recovery on Trial on the Merits.
In addition to the Trial Court erring in finding continuing to stop the pending
eviction action and presumably finding Appellee had no adequate remedy at law,
the Trial Court should have dissolved the injunction due to the fact that Appellee
presented no evidence at any time that showed any cause of action with a
likelihood of success on the merits. Other than generic statements that Appellee
pled many causes of action that the Judge could have found supported injunctive
relief, Appellee does not dispute any of the specific arguments on why each cause
of action fails as a matter of law as presented in the Appellant’s brief.
Interestingly enough, Appellee spends the majority of her brief focused on
what she perceives to be a missing endorsement on the note and thus arguing that
Appellant was without authority to proceed with the foreclosure. This argument
first appeared in the Amended Petition filed one day prior to the brief being filed.
As such, the argument is irrelevant and cannot be used to support the prior
injunctive relief or more specifically, the denial of dissolution or modification of
the prior injunctive relief. Even with that being the case, Appellee clearly
misstates the law and facts as to that argument as well. The parties entitled to
enforce a note are the owner, holder, or holder-in-due course. There is no dispute
that Appellant is the current owner of the note through a merger. As owner of the
note, it is entitled to enforce the note regardless if they endorse it to themselves.
Additionally, Appellee’s own testimony says she understands Appellee owns the
note and Exhibit H to her brief is a Loan Modification and Extension Agreement in
which she clearly agreed that “Compass Bank (herein “Lender”) is now the owner
and holder the herein described liens.” Appellee’s Brief, Exhibit H. Appellee is
improperly attempting to put forth an entirely new frivolous argument to try to
support a prior ruling.
Advisory Opinion
Appellee further asserts that the Appeal is an impermissible request for an
advisory opinion. This argument is without merit. There have been clear mistakes
in the law. The Appellee offered no evidence to the Trial Court to show a
likelihood of success on the merits for any purported claim. At no point in
Appellee’s own brief does she even cite any evidence of any cause of action.
Moreover, the Appellee failed in the entirety to address the other defects in the
Temporary Injunction Order, such as the failure to include a trial date and
insufficient bond, either of which should have been grounds to at least modify the
Order as alternatively requested by Appellant to the Trial Court.
Mootness
Appellee states that “[t]he record does not explain what happened between
then [Appellant’s Brief filed on December 30, 2014] and May 5, 2015 when
Appellee asked for an extension of time to file her brief.” Appellee’s Brief, page
32. Appellee further states that the “sheer passage of time makes the issue moot”
and that “a good part of it [the fault] also falls on Appellant’s shoulders.”
Appellee’s Brief, page 34. These statements would seem to be unbelievable if not
for the other actions and statements by Appellee’s counsel up to this point.
It might be true that only Appellee, or perhaps Appellee’s counsel, know the
true reason for the unexplained delay. Perhaps, as evidenced in her brief,
Appellee’s counsel knew that they had no valid legal arguments in response to
Appellant’s brief. Or perhaps it was because Appellee had returned to Mexico and
Appellee’s counsel (Noe Robles) thought that an unfavorable ruling might
interrupt his use of the underlying property as a vacation home for himself and his
family as he informed the Trial Court at a subsequent hearing. But the allegation
that the blame for the delay in filing the Appellee’s Brief falls on anyone other than
Appellee or Appellee’s counsel, when counsel had knowledge of the deadline to
respond, was included on numerous emails about the delinquency of a response,
and did not even request the first of three extensions until 5 months after the brief
was initially due, is absurd.
The Appeal is not moot. There has been no trial on the merits and until
there is, the Appeal will not be moot as an improper injunction remains in place.
The fact that the trial is scheduled for August does not change anything as there
has been no final order. Additionally, Appellee recently amended her pleadings to
allege new causes of action and has thus far, failed to respond to discovery requests
despite a prior granted Motion to Compel and a pending Emergency Motion to
Compel. It is likely that the trial will have to be delayed further.
If, however, trial does go forward before this Court renders an opinion and
does effectively make the Appeal moot; this Court should consider using its
inherent authority to sanction Appellee or Appellee’s Counsel for their delay that
caused its mootness, the intentional misstatement of undisputed facts, and the
attempted misrepresentations of case law offered.
Respectfully submitted,
By: /s/ Selim H. Taherzadeh
TAHERZADEH, PLLC
Selim H. Taherzadeh
st@taherzlaw.com
Texas Bar No. 24046944
5001 Spring Valley Road
Suite 1020W
Dallas, Texas 75244
Tel. (469) 729-6800
Fax. (469) 828-2772
ATTORNEYS FOR APPELLANT
COMPASS BANK
CERTIFICATE OF SERVICE
I hereby certify that on July 14, 2015 a true and correct copy of the above
and foregoing Reply was properly forwarded to all counsel of record for Appellee
in accordance with Rule 9.5 of the Texas Rules of Appellate Procedure, as follows:
Noe Robles
23331 Tamm Lane
Harlingen, Texas 78552
(T) 956-440-8200
(F) 956-440-8205
nrobelslawoffice@aol.com
Philip Cowen
500 E. Levee Street
Brownsville, Texas 78520
(T) 956-541-6031
(F) 956-541-6872
ptchb@att.net
/s/ Selim H. Taherzadeh
Selim H. Taherzadeh
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4, I hereby certify that this brief contains
2,377 words. This is a computer-generated document created in Microsoft Word
2013, using 14-point typeface for all text, except for footnotes which are in 12-
point typeface. In making this certificate of compliance, I am relying on the word
count provided by the software used to prepare the document.
/s/ Selim H. Taherzadeh
Selim H. Taherzadeh