ACCEPTED
03-15-00339-CV
8384348
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/28/2015 7:14:51 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00339-CV
FILED IN
3rd COURT OF APPEALS
IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
AT AUSTIN, TEXAS 12/28/2015 7:14:51 PM
JEFFREY D. KYLE
Clerk
BEN MELTON,
Appellant
vs.
CU MEMBER’S MORTGAGE, a division of
COLONIAL SAVINGS, F.A., and FIRST WESTERN TITLE CO.
Appellees
On Appeal from the 340 th District Court
of Tom Green County, Texas
Hon. Jay Weatherby Presiding
Trial Court Cause No. C103102C
APPELLANT’S REPLY BRIEF
Gregory Sherwood
Attorney
P.O. Box 200613
Austin, Texas 78720-0613
(512) 484-9029
State Bar No. 18254600
Email: gsherwood@mail.com
Attorney on Appeal
for Appellant Ben Melton
ORAL ARGUMENT REQUESTED
Table of Contents
Table of Contents ...................................................................................................... i
Index of Authorities ................................................................................................. ii
Conclusion and Prayer for Relief ............................................................................. 5
Certificate of Service ............................................................................................... 6
Certification of Word Count Compliance ................................................................ 6
i
Index of Authorities
Cases
Washmon v. Strickland, No. 03-08-00372-CV
(Tex. App. – Austin Feb. 26, 2010, no pet.) ........................................................ 2, 3
Wood v. HSBC, U.S.A., N.A., et al, Tex. Sup. Ct. No. 14-0714
(pet. granted 10-9-14, argued 12-8-15) .................................................................... 2
Rule
Tex. R. App. P. 9.4(i)(1) .......................................................................................... 6
ii
No. 03-15-00339-CV
IN THE THIRD COURT OF APPEALS
AT AUSTIN, TEXAS
BEN MELTON,
Appellant
vs.
CU MEMBER’S MORTGAGE, a division of
COLONIAL SAVINGS, F.A., and FIRST WESTERN TITLE CO.
Appellees
On Appeal from the 340 th District Court
of Tom Green County, Texas
Hon. Jay Weatherby Presiding
Trial Court Cause No. C103102C
APPELLANT’S REPLY BRIEF
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
NOW COMES appellant BEN MELTON, who filed Appellant’s Reply
Brief, respectfully stating as follows:
Appellees’ Brief discusses why the four year residual statute of limitations
should apply to bar Melton’s suit and support the summary judgment order.
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However, Appellees’ Brief fails to discuss the pending Texas Supreme Court case
of Wood v. HSBC, U.S.A., N.A., et al, Tex. Sup. Ct. No. 14-0714 (pet. granted 10-
9-14, argued 12-8-15), which may alter the law in this area. One of the questions
asked during oral argument was whether the legal injury occurred on the date that
the loan closed (as the law currently states) or on the date that the lender failed to
cure any defects brought to the lender’s attention. If the Texas Supreme Court
holds that the triggering date for the statute of limitations is the date that the lender
failed to cure any defects, then appellant Melton’s suit is not barred by the four
year residual statute of limitations, since the parties agree that his suit was filed
exactly four years after the loan closed, and the notice of defect occurred after that
date, or less than four years before suit was filed. The Texas Supreme Court may
also hold that no statute of limitations applies. Additionally, appellant relies on his
initial briefing to rebut the “lack of due diligence” argument asserted by appellees
as a basis for granting summary judgment.
Appellees argue that standing has been shown by citing this court’s
unpublished memorandum opinion in Washmon v. Strickland, No. 03-08-00372-
CV (Tex. App. – Austin Feb. 26, 2010, no pet.), a case involving a pro se
appellant, in which the main point of contention was whether the entity conducting
the foreclosure could do so when it did not have the original note, but only a copy
2
of the note. The Washmon case does not respond to Melton’s argument at page 24
of Appellant’s Brief that, “Appellees produced no summary judgment evidence to
show that the Mortgagor (appellant Melton), was instructed to send payments to
CU Member’s Mortgage by the current mortgagee. In fact, Colonial Savings, F.A.
claimed to be the Mortgage Servicer. Affidavit of Amily Sauceda, CR 66, ¶ 7.”
The Notice of Default with Intent to Accelerate, CR 96, relied upon at page
15 of Appellees’ Brief, does state that, “CU Members Mortgage, a division of
Colonial Savings, F.A., is acting as the Mortgage Servicer for COLONIAL
SAVINGS, F.A., who is the Mortgagee of the Notes and Deed of Trust associated
with [Melton’s] real estate loan.” CR 96. However, this is contradicted by Amily
Sauceda’s affidavit, CR 66, ¶ 7, which states that Colonial Savings, F.A. is the
mortgage servicer, as discussed at page 24 of Appellant’s Brief. Washmon is
distinguishable because in that case, it was uncontested that Washington Mutual
Bank was the entity named on the Assignment of Deed of Trust, whereas in this
case, it is Colonial Savings, F.A. that is named as the mortgage servicer, not CU
Member’s Mortgage, a division of Colonial Savings, F.A. Furthermore, there is no
summary judgment evidence that Ben Melton was ever instructed to send mortgage
payments to CU Member’s Mortgage itself, as opposed to Colonial Savings, F.A.
or some other entity.
3
Ms. Sauceda’s affidavit also states that, “Colonial [Savings, F.A.] . . . is
responsible for the servicing of the loan agreement at issue . . . . Colonial
[Savings, F.A.] is the attorney-in-fact and servicer-in-fact for Federal National
Mortgage Corporation (“Freddie Mac”) with respect to the mortgage loan at issue
involving [appellant Melton] as borrowers. Freddie Mac is the owner and holder
of the Note at issue. . . .” CR 64-65, ¶ 2. Appellees seem to think that Colonial
Savings, F.A. and CU Member’s Mortgage are the same entity, as both corporate
structures are cited in Appellees’ Brief, in the summary judgment motion, and in
Ms. Sauceda’s affidavit with the abbreviation “Colonial.” Compare CR 64, ¶ 2,
using “Colonial” to mean Colonial Savings, F.A., with CR 65, ¶ 5, using
“Colonial” to mean CU Member’s Mortgage, a division of Colonial Savings, F.A.
While Ms. Sauceda’s affidavit states that, “CU Members Mortgage is a division of
Colonial Savings, F.A. and not a separate or distinct entity[,]” CR 65, ¶ 5, this is
insufficient summary judgment evidence to show that CU Member’s Mortgage, the
party in this appeal, had standing, since there is no summary judgment presented
that Melton was ever instructed to send mortgage payments to CU Member’s
Mortgage.
Appellees also argue at page 16 of Appellees’ Brief that standing is shown
by the filing in the Tom Green County Clerk’s Office of an Assignment of Deed of
4
Trust, CR 94, in June 2013, about three months after the underlying suit was filed.
However, this document states that “Mortgage Electronic Registration Systems,
Inc., as Nominee for CU Members Mortgage, a Division of Colonial Savings,
F.A.,” is the Assignor, and that “Colonial Savings, F.A., a Federal Association,” is
the Assignee. Colonial Savings, F.A. is not a party to this lawsuit, and since it is
the Assignee, not CU Member’s Mortgage, this document cannot be a basis for
showing that appellee CU Member’s Mortgage had standing to obtain summary
judgment and seek foreclosure on the home equity loan.
Conclusion and Prayer for Relief
WHEREFORE, PREMISES CONSIDERED, appellant Ben Melton prays
that this court reverse the trial court’s order granting summary judgment and order
for attorney’s fees. If this court affirms in part and reverses in part, appellant prays
that this court vacate the order for attorney’s fees and remand to the trial court for a
determination of what portion of attorney’s fees are attributable to the portion of
this appeal that this court affirms. Appellant Ben Melton also prays for his costs
of court, both in this court and in the court below, and for general relief.
5
Respectfully submitted,
/s/ Gregory Sherwood
GREGORY SHERWOOD
Attorney at Law
P.O. Box 200613
Austin, Texas 78720-0613
(512) 484-9029
State Bar No. 18254600
Email: gsherwood@mail.com
Attorney on Appeal
for Appellant Ben Melton
Certificate of Service
I hereby certify that a true copy of this document was served on December
28, 2015, by email sent by undersigned counsel, upon the attorney for appellees in
this appeal: Mark Cronenwett, Mackie Wolf, Zientz & Mann, PC, 14150 N. Dallas
Parkway, Suite 900, Dallas, Texas 75254, email: mcronenwett@mwzmlaw.com.
/s/ Gregory Sherwood
Certification of Word Count Compliance
According to the WordPerfect program used to create this document, there
are 961 words in this brief, excluding the portions listed in Tex. R. App. P.
9.4(i)(1).
/s/ Gregory Sherwood
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