Ben Melton v. CU Members Mortgage, a Division of Colonial Savings, F.A. And First Western Title Co.

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

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 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

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 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

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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.

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 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

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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.

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 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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