ACCEPTED
03-15-00339-CV
13859970
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/17/2016 4:12:21 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00339-CV
FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
THIRD JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS
11/17/2016 4:12:21 PM
AUSTIN, TEXAS
JEFFREY D. KYLE
Clerk
BEN MELTON,
APPELLANT,
v.
CU MEMEBERS MORTGAGE, A DIVISION OF COLONIAL SAVINGS,
F.A., FIRST WESTERN TITLE CO., AND BOB MIMS,
APPELLEES.
Appeal from the 340th Judicial District Court
Tom Green County, Texas
Trial Court Case No. C130102
Hon. Jay Weatherby, presiding
APPELLEES’ MOTION TO REMAND
TO THE HONORABLE COURT OF APPEALS:
COME NOW Appellees CU Members Mortgage, a division of Colonial
Savings, F.A. (“Colonial”) and First Western Title Co. (“First Western”) or
collectively (“Appellees”), and file this Motion to Remand and shows:
Appellant Ben Melton asserted in the trial court several claims that the
subject home equity loan was invalid due to alleged violations of the Texas
MOTION TO REMAND PAGE 1
constitution in the origination of the subject home equity loan. CR 219-20. The
basis for the trial court’s summary judgment ruling rejecting these claims was that
they were barred by the applicable statute of limitations. CR 54, 264-65.
Since the trial court entered the subject summary-judgment order, the Texas
Supreme Court in Wood v. HSBC Bank USA, N.A., No. 14-0714, 2016 Tex. LEXIS
383, 2016 WL 2993923, at *3 (Tex. May 20, 2016), held that there is no statute of
limitations that might preclude a home-equity borrower from contending that the
subject home equity loan is unenforceable due to an alleged violation of the Texas
constitution in its origination.
As the trial court did not have the benefit of the Wood opinion when
considering Appellees’ motion for summary judgment, Appellees recognize that
this cause should be remanded to the trial court for that purpose. Appellees further
recognize that the costs on appeal are to be taxed against them.
WHEREFORE, Appellees request that the Final Judgment from the Trial
Court be reversed and this cause remanded to the Trial Court for further
proceedings as indicated above; that the costs on appeal be charged against
Appellees; and for such other relief to which the Appellees may be entitled.
MOTION TO REMAND PAGE 2
Respectfully submitted,
By: /s/ Mark D. Cronenwett
MARK D. CRONENWETT
Texas Bar No. 00787303
mcronenwett@mwzmlaw.com
Mackie Wolf Zientz & Mann, PC
14160 N. Dallas Parkway, Suite 900
Dallas, Texas 75254
(214) 635-2650
(214) 635-2686 (Fax)
Attorneys for Appellees CU Members
Mortgage, a Division of Colonial
Savings, F.A. and First Western Title
Co.
CERTIFICATE OF CONFERENCE
I hereby certify that I conferred with Gregory Sherwood, Counsel for
Appellant Ben Melton, regarding this Motion and Appellant is opposed to the
granting of the relief requested herein for the reason that Appellant disagrees with
Appellees’ intent to ask the trial court to retain the moneys deposited as
supersedeas in this matter following remand.
/s/ Mark D. Cronenwett___________
MARK D. CRONENWETT
MOTION TO REMAND PAGE 3
CERTIFICATE OF SERVICE
I hereby certify that on the 17th day of November, 2016, a true and correct
copy of the foregoing was served via the state electronic filing service to the
counsel of record listed below:
Gregory Sherwood
P O Box 200613
Austin, Texas 78720-0613
gsherwood@mail.com
Attorney for Appellant
/s/ Mark D. Cronenwett___________
MARK D. CRONENWETT
MOTION TO REMAND PAGE 4