ACCEPTED
12-15-00216-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/3/2015 2:56:56 PM
Pam Estes
CLERK
NO. ________________________
FILED IN
IN THE 12th COURT OF APPEALS
TYLER, TEXAS
COURT OF APPEALS 9/3/2015 2:56:56 PM
FOR THE PAM ESTES
TWELFTH DISTRICT OF TEXAS Clerk
IN RE THOMAS LYTLE AND ELLEN LYTLE,
Relators,
v.
THE HONORABLE TERESA DRUM, JUDGE
PRESIDING 294TH JUDICIAL DISTRICT
COURT OF VAN ZANDT COUNTY, TEXAS,
Respondent,
Real Parties in Interest:
David C. Petruska
Sandra L. Petruska
Helmuth K. Gutzke and
Zackiann Gutzke,
Defendants.
RECORD REGARDING
PETITION FOR WRIT OF MANDAMUS
Barbara L. Emerson, Esq.
Texas State Bar No. 06599400
BELLINGER & SUBERG, LLP ORAL ARGUMENT REQUESTED
10,000 N. Central Expy., Suite 900
Dallas, TX 75231
214.954.9540 – Telephone
214.954.9541 – Facsimile
bemerson@bd-law.com
RECORD REGARDING WRIT OF MANDAMUS i
\\Bdnt-fs1\wpprolaw\3191.002\274673.docx
Now come the Relators herein and file herewith the Official Record
containing certified copies of pleadings and orders from the 294 th District Court of
Van Zandt County, Texas, as outlined on the Table of Contents.
A hearing on the underlying motion was held on August 17, 2015, at which
time certain exhibits were offered into evidence. On August 25, 2015, a request
was made to Estella Grisham, the Court Reporter for 294th District Court of Van
Zandt County, Texas, and payment was arranged for the transcript of the hearing
held on August 17, 2015, regarding Defendant David C. Petruska's Motion to Stay
All Proceedings With Legal Authorities in Support. The transcript has not been
completed at the time of this filing. The record will be supplemented with the
transcript once it is completed.
RECORD REGARDING WRIT OF MANDAMUS ii
\\Bdnt-fs1\wpprolaw\3191.002\274673.docx
Respectfully submitted,
BELLINGER & SUBERG, L.L.P.
By:
BARBARA L. EMERSON
Texas State Bar No. 06599400
10,000 N. Central Expy., Suite 900
Dallas, Texas 75231
Telephone: 214/954-9540
Facsimile: 214/954-9541
bemerson@bd-law.com
ATTORNEY FOR RELATORS,
THOMAS LYTLE AND ELLEN LYTLE
RECORD REGARDING WRIT OF MANDAMUS iii
\\Bdnt-fs1\wpprolaw\3191.002\274673.docx
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the Record
Regarding Petition for Writ of Mandamus has been forwarded to all counsel via
eservice and email on the 3rd day of September, 2015 as provided below.
Respondent –Via Hand Delivery Counsel to Helmuth Gutzke and
The Hon. Teresa Drum Zackiann Gutzke
County Courthouse Ralph E. Allen
121 E. Dallas St., Suite 301 Attorney and Counselor at Law
Canton TX, 7510 100 East Ferguson, Suite 901
(903)567-7555 Telephone Tyler, Texas 75702
c/o Kathy Jackson, Court Administrator (903) 593-9727 Telephone
kjackson@vanzandtcounty.org rallen@tyler.net
Counsel to David C. Petruska and Sandra
L. Petruska
Michael F. Pezzulli
Holmes Firm PC
14911 Quorum Drive, Suite 340
Dallas, Texas 75254
(469) 916-7700 Telephone
Michael@courtroom.com
Barbara L. Emerson
Texas State Bar No. 06599400
BELLINGER & SUBERG, L.L.P.
10,000 N. Central Expy., Suite 900
Dallas, Texas 75231
Telephone: 214/954-9540
Facsimile: 214/954-9541
bemerson@bd-law.com
RECORD REGARDING WRIT OF MANDAMUS iv
\\Bdnt-fs1\wpprolaw\3191.002\274673.docx
TABLE OF CONTENTS
Page
Defendants David C. and Sandra L. Petruska's Response to Plaintiffs' 001
Motion for Summary Judgment on Liability, Subject to Their Motion
for Continuance, filed December 2, 1014;
Plaintiffs' First Amended Petition, filed February 12, 2015; 124
Trial Setting Notice, dated July 19, 2015; 130
Defendant David C. Petruska's Motion to Stay All Proceedings With 132
Legal Authorities in Support, filed August 4, 2015;
Plaintiffs' Opposition to Defendant David C. Petruska's Motion to Stay 147
All Proceedings, filed August 14, 2015;
Order Staying Proceedings; signed August 21, 2015; 153
Criminal Docket sheet from cause number CR14-00185, in which The 154
State of Texas versus David Charles Petruska, pending in the 294th
District Court of Van Zandt County, Texas;
RECORD REGARDING WRIT OF MANDAMUS v
\\Bdnt-fs1\wpprolaw\3191.002\274673.docx
Malisa Chaney
NO. 14-00172 .
THOMAS LYTLE AND ELLEN § IN THE DISTRICT COURT
LYTLE, §
§
v. §
§
DAVID C. PETRUSKA, SANDRA L. § 294th JUDICIAL DISTRICT
PETRUSKA, COMPASS BANK, §
HELMUTH K. GUTZKE, and §
ZACKIANN GUTZKE § VANZANDT COUNTY TEXAS
DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S
RESPONSE TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT ON
LIABILITY. SUBJECT TO THEIR MOTION FOR CONTINUANCE
. I. Introduction
Because Defendants David and Sandra Petruska have already .s igned (and Plaintiffs
Thomas and Ellen Lytle already filed) a release of easement and because the Petruskas raise a
genuine issue of material fact on key elements of the Lytles' claim under section 12.002 of the
Civil Practice & Remedies Code, the Court should dismiss some of the Lytles claims because no
;
'
live controversy exists and it should deny the Lytles' motion for summary judgment on liability. !.
IT. Background
In November 2002, Thomas and Ellen Lytle purchased the property at .1603 VanZandt
County Road 2319.
. .
In May 2008, David and Sandra Petruska purchased the neighboring property at 1601
Van Zandt County Road. 2319. As they believed that their predecessors and others had done,
they drove on the Lytles' driveway for access to and from their property and house to the county
road for years without complaint. After another dispute in February 2014, the Lytles' attorney
demanded that the Petruskas release the easement so that the Lytles wouldn't sue. The Petruskas
DEFENDANTS DAVlD C. AND SANDRA L. Page 1
MOTION FOR SUMMARY JUDGMENT '"'"A<~..~~t<"-'-":'\
MOTION FOR CONTINUANCE
RECORD 1
signed the release of easement. But the Lytles sued anyway.
ID. Standards
As a plaintiff with the burden of proof, a plaintiff who moves for a traditional summary _,
1
' judgment must conclusively establish each element of his or her claim. To defeat the motion,
the defendant must present sufficient evidence to justify a reasonable jury in finding in his or her
favor on the relevant elements? A c~urt should resolve all doubts and draw all reasonable
3
inferences in the favor of the non-movant
IV. Grounds to Deny Summary Judgment
A. The Petruskas specially except.
1. No Specific Grounds for Summary Judgment
The Petruskas specially except4 to the Lytles' failure to state the specific grounds for their
motion within the meaning of Rule 166a(c).
2. No Briefing on the Elements of Section 12.002
The Petruskas specially except to the Lytles' failure to cite section 12.002 of the Civil
Practice & Remedies Code, recite its elements, recite any case law under the section, or
1
See Tex. R. Civ. P. I66a(c);Bowman v. Brook3hire Grocery Co., 317 S.W.3d 500,503 (Tex. App.-Tyler 2010,
pet. denied).
2
See Merchant v. PHH Mtge. Corp., No. 12-12-00261-CV, 2013 WL 5593493, *I (Tex. App.-Tyler Oct. 9, 2013,
no pet.) (memo). .
3
See Bowman, 317 S.W.3d at 503.
4
"The purpose of special exceptions in the SUllllil81y-judgment procedure is to ensure that the parties and the trial
court are focused on the same grounds." Michol O'Connor, O'Connor's Texas Rules, Civil Trials 2013, 604 (2013)
(citing McConnellv. Southside Ind. Sch. Dist., 858 S.W.2d 337, 342-43 (fex. 1993) (discussing the need for clear
summary-judgment issues and the use of exceptions to clarify doubts)). "If the motion or response states grounds
that are unclear or ambiguous, it is 'prudent trial practice' to file special exceptions." Michol O'Connor,
O'Connor's Texas Rules, Civil Trials 2013, 604 (2013) (Citing McConnellv. Southside Ind. Sch. Dist., 858 S.W.2d
337, 342-43 {Tex. 1993) ("Prudent trial practice dictates that such an exception should be lodged to ensure that the
parties, as well as the trial court, are focused on the same grounds.j).
.
,....:·. ~
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DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S RESPONSE TOP~~ ,
MOTION FOR SUMMARY JUDGMENT ON UABillTY, SUBJECT TO 'I'IIElf" : .;.'''·~"' ~~ C T
MOTION FOR CONTINUANCE
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straightforwardly argue the evidence as it may or may not apply to the elements.
B. Lyltes' Requested Relief
With respect to the Lytles' requested relief listed on pages 2-3 of their motion, the
Petruskas counter:
1. Because David and Sandy Petruska signed an returned the release of easement at Tab -->
there is no live controversy with respect to the Lytles' requested relief in sections II(2Xa), (b),
and (c). There is nothing for the Court to declare, and there is no further relief for the Lytles to
obtain.
2. In section II(2)(c), the Lytles ask the Court to "mandate" that the Petruskas sign
documents to release all claims to the disputed easement. In addition to the fact that the
Petruskas have already signed a release and, thus, that this request involves no live controversy,
the Lytles don't invoke a statute authorizing such relief
3. With respect to the Lytles' requested relief in section II(2)(d), a deed of trust sets out a
lender's remedies against a borrower. A deed oftrust doesn't affect the borrower's neighbors.
To the extent that the Petruskas' deed of trust with Compass Bank may affect the Lyltes, the
Petruskas have already signed a release of easement. Thus, there is no live controversy with
respect to this requested relief as to the Petruskas. For example, the Lytles haven't asserted or
briefed a provision under Chapter 65 of the Civil Practice & Remedies Code or met the standards
for a preliminary injunction.
4. As Fact Nos15-16 discuss below, the Petruskas did not ·-
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18
and well-worn split off leading to the house on 1601 VanZandt County Road by. May 2008.
Both properties, 1601 and 1603 VanZandt County Road 2319, shared one mail-box post at the
19
comer of the driveway and the county road between May 2008 and February 2014.
E. Title Company
6. On or about April 10, 2008, the Petruskas' title company-Elliott & Waldron
Abstract & Title Company of Canton, Texas-wrote them a letter.20 Schedule B of the
accompanying Commitment for Title Insurance "Exceptions from Coverage," stated, in part, "In
addition to the Exclusion and Conditions and Stipulations, your Policy will not cover loss, costs,
attorneys' fees, and expenses resulting from ... 10. Easements or claims of easements which
may or may not be recorded in the public records of Zandt County, Texas." At the time of their
21
purchase, the Petruskas believed that this exclusion from the title policy was standard language.
They did not believe that this language referred specifically to the easement set out in the
General Warranty Deed with Vendor's Lien from the Gutzkes. 22 Also, they didn't understand
the title company as telling them that the easement to use the neighboring driveway was invalid
or non-existent. 23 They understood the company to be saying that it just didn't insure
easements. 24 Also, no one from the title company told the Petruska that the easement identified
See David Petruska's Affidavit,~ 6, Tab l; Sandra Petruska's Affidavit,~ 6, Tab 2.
18
19
See David Petruska's Affidavit,~ 6, Tab 1; Sandra Petruska's Affidavit,~ 6, Tab 2.
20
See David Petruska's Affidavit, , 7, Tab 1.
See David Petruska's Affidavit, ~ 7, Tab 1; Sandra Petruska's Affidavit, , 7, Tab 2.
21
See David Petruska's Mfidavit, ~ 7, Tab 1; Sandra Petruska's Affidavit,~ 7, Tab 2.
22
See David Petruska's Affidavit,~ 7, Tab l; Sandra Petruska's Affidavit,~ 7, Tab 2.
23
See David Petruska's Affidavit,~ 7, Tab 1; Sandra Petruska's Affidavit, ~ 7, Tab 2.
24
DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S RESPONSE TO PLAINTIFFS' Page7
MOTION FOR SUMMARY JUDGMENT ON LIABILITY, SL""BJECT TO TIU!:fR1,: 111• . •··.
MOTION FOR CONTINUANCE i . ,,,•. "> i :· 'CT C ., , ..
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in the General Warranty Deed was not valid.25 In fact, no one at all, including the title company
personnel, the bank personnel, the Gutzkes, or anyone else, ever suggested to the Petruskas that
26
the easement identified in the General Warranty Deed was not valid. From Januruy 2008
during the times the Petruskas visited the property to make their purchase decision, they drove on
the neighboring driveway to access the property. 27 So did the realtors and others involved in
their purchase? 8 No one, including the Lytles, complained about this? 9
7. As Exhibit B(l) to Plaintiffs Motion for Summary Judgment on Liability (filed
Oct. 29, 2014), the Lytles attached a copy of our title policy for the property. Schedule B
(Exceptions) states, in part, "We do not cover loss, costs, attorneys' fees and expenses resulting
from: ... 6(1) We do not insure access via the roadway shown on property owned Lytle adjacent
to NW line of property shown on survey dated April23, 2008 by Gerald A. Carter." The
30
Petruskas did not receive a copy of the title policy at the time of closing on May 16, 2008.
Buyers ordinarily do not receive copies of the title policy at the time of the closing. 31 Closings
are predicated on the title commitment. 32 Title companies customarily provide a final title policy
25
See David Petruska's Affidavit, '1!7, Tab 1; Sandra Petruska's Affidavit, '1!7, Tab 2.
26
See David Petruska's Affidavit, '1!7, Tab I; Sandra Petruska' s Affidavit, '1!7, Tab 2.
27
See David Petruska's Affidavit, '1!7, Tab 1; Sandra Petruska's Affidavit, '1!7, Tab 2.
28
See David Petruska's Affidavit, '1!7, Tab I ; Sandra Petruska's Affidavit, '1!7, Tab 2.
29
See David Petruska's Affidavit, '1!7, Tab 1; Sandra Petruska's Affidavit, '1!7, Tab 2.
30
See David Petruska' s Affidavit, '1!8, Tab 1; Sandra Petruska' s Affidavit, '1!8, Tab 2.
31
See David Petruska's Affidavit, '1!8, Tab 1; Sandra Petruska's Affidavit, 'V 8, Tab 2.
32
See David Petruska's Affidavit, , &, Tab 1; Sandra Petruska's Affidavit; •..
; . ~- .. ~~'' \ '1 \ . I ! I ; , i . .• .
DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S " PQ~Sk;'Nl P~~T{FFS' Page 8
MOTION FOR SUMMARY JUDGMENT ON LIABILITY, SOB.fEt;Ti;b~. -:,. . ,
MOTION FOR CONTINUANCE
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four to six weeks after a closing. 33 In fact, the Petruskas are unsure when they first saw a copy of
their title policy, but it was long after closing.34 Also, the title company is not stating that the
easement shown on the General Warranty Deed with Vendor's Lien (dated May 16, 2008) from
the Gutzkes is invalid. 35
F. · Independent Survey
8. In early 2008, the Petruskas engaged an independent surveyor, Registered
Professional Surveyor No. 1935 Gearld A Carter, to survey the property at 1601 VanZandt
County Road 2319 and to confirm the property's boundaries. 36 Mr. Carter provided the
Petruskas and the title company with a survey, field notes, and diagrams. 37 Although they're not
experts at reading technical surveys or diagrams, they understood that the documents at Tab_
likewise confirmed and documented this easement. The Petruskas understood this in 2008, as
well, when they bad their General Warranty Deed with Vendor's Lien and our Deed of Trust
recorded in Van Zandt County's public land records. 38
G. The Petruskas bought 1601 VanZandt County Road 2319.
9. On Apri124, 2008, the Petruskas, on the one band, and the Gutzkes, on the other
hand, signed an amendment to the real-estate contract for the property, chiefly to make David
33
See David Petruska's Affidavit, 1 8, Tab 1; Sandra Petruska's Affidavit, 1 8, Tab 2.
34
See David Petruska's Affidavit, 1 8, Tab 1; Sandra Petruska's Affidavit,'! 8, Tab 2.
See David Petruska's Affidavit, 'l 8, Tab 1; Sandra Petruska's Affidavit,~ 8, Tab 2.
35
36
See David Petruska's Affidavit,, 9, Tab 1; Sandra Petruska's Affidavit, 119, Tab 2.
37
See David Petruska's Affidavit, 19, Tab 1; Sandra Petruska's Affidavit, 19, Tab 2.
38
See David Petruska's Affidavit,, 9, Tab 1; Sandra Petruska's Affidavit, II) 9, Tab 2.
RECORD 9
Petruska a party-buyer to the contract. 39 At the time, the title company recommended that the
40
parties obtain documentation of the easement signed by the Lytles. Exhibit A to the
amendment stated, "Closing is conditioned upon conveyance of easement acceptable to buyers
allowing access to said property from private driveway owned by Ms. Lytle.'"' 1 In April or May
2008, Sandy Petruka called Thomas Lytle about signing a paper to meet the title company's
suggestion. 42 Thomas Lytle said that he didn't want to spend money on an attorney to confirm
an easement that was clear or obvious that residents of 1601 VanZandt County Road 2319 had
44
possessed and used for years. 43 Given this, the Petruskas didn't seek further documentation.
10. On or about May 16, 2008, the Petruskas, relying in part, on the representations in
the General Warranty Deed as well as the representations ofTom Lytle in his phone
conversation with Sandy, purchased the real property consisting of just over 25 acres ofland,
with a house and other buildings, at 160 I Van Zandt County Road 2319, being described in that
General Warranty Deed with Vendor's Lien dated May 16, 2008, from Helmuth Gutzke and
Zackiann Gutzke, recorded with Document Number 2008-004602 of the deed records of Van
Zandt County, Texas. 45
11. On May 16, 2008, the Petmskas and the Gutzkes signed another amendment,
39
See David Petruska's Affidavit,, 10, Tab 1.
40
See David Petruska's Affidavit,~ 10, Tab I.
41
See David Petruska's Affidavit,~ 10, Tab I.
42
See Sandra Petruska's Affidavit,~ 10, Tab 2.
See; Sandra Petruska' s Affidavit,~ 10, Tab I; see also David Petruska's Affidavit,~ 10, Tab 1.
43
See David Petruska's Affidavit,~ 10, Tab 1; Sandra Petruska's Affidavit,~ 10, Tab I.
44
See David Petruska's Affidavit,~ 10, Tab 1.
45
DEFENDANTS DAVID C. ANJ? SANDRA L. PETRUSKA'S Page 10
MOTION FOR SUMMARY JUDGMENT ON LIABILITY,
MOTION FOR CONTINCANCE
RECORD 10
'·
which stated, in part, "Seller and Buyer agree to waive the condition of the contract relating to
obtaining an easement from Thomas M. or Ellen Lytle." 46 The Petruskas believed that they did
not need any additional documentation of the easement. 47 First, their general warranty deed
(dated May 26, 2008) set out the easement. 48 Second, an independent surveyor confmned the
easement in Apri12008. 49 Third, they believed that the Gutzkes had used and driven vehicles on
°
the driveway or roadway for years before May 16, 2008. 5 Fourth, Thomas Lytle had
acknowledged the· easement in a phone conversation with Sandy in April or May 2008. 51
12. The Gutzkes stated that they owned fee simple title to the property, including the
easement, at the time the Petruskas purchased it 52 By the terms ofthe General Warranty Deed,
the Gutzkes warranted the title conveyed to them, including the easement. 53 In part, ihe Deed
stated, "All that certain lot, tract or parcel ofland ... of the called 5. 753 acre first tract and all of
the called 20.00 acre second tract ... together with an Easement for Roadway situated in Van
Zandt County, State of Texas, on the M.V. Lout Survey, A-468 and being a part of the called
68.78 acre tract conveyed to Thomas M Lytle and Ellen Lytle, by Ricky Lee Hadley, by General
Warranty Deed ... and part of the called 1.10 acre tract conveyed to Thomas M. Lytle and Ellen
46
See David Petruska's Affidavit, 1J 11, Tab 1.
See David Petruska's Affidavit,~ 11-12, Tab 1; Sandra Petruska's Affidavit,~ 12-13, Tab 2.
47
48
See David Petruska's Affidavit,~ 11-12, Tab 1; Sandra Petruska's Affidavit, n 12-13, Tab 2.
~See David Petruska's Affidavit, 'J'J 11-12, Tab 1; Sandra Petruska's Affidavit, '11'11 12-13, Tab 2.
50
See David Petruska's Affidavit,,, 11-12, Tab 1; Sandra Petruska's Affidavit, 'lf'lf12-13, Tab 2.
51
See David Petruska's Affidavit, n 11-12, Tab 1; Sandra Petruska's Affidavit,,, 12-13, Tab 2.
52
See David Petruska's Affidavit, 'If 13, Tab 1.
53
See David Petruska's Affidavit, 'If 13, Tab 1.
Page 11
RECORD 11
. ,.
Lytle ...."54 The Gutzkes executed and delivered the General Warranty Deed pursuant to a
purchase agreement and in consideration of the purchase price paid that the Petruskas paid to the
Gutzkes including purchase of the easement.55
13. On or about May 16,2008, the Petruskas also signed a Deed of Trust, which
contained the same property description and easement language as the General Warranty Deed
with Vendor's Lien, as part of secw:ing a loan from Compass Bank. 56
14. Between May 16,2008 and February 2014, the Petruskas used and drove on the
driveway on the Lytles' property without complaint.57 Both properties shared a single mail-box
post at the comer of the county road and the driveway or roadway. 58 Before February 2014,
David Petruska gave Thomas Lytle a check for what County Commissioner Virgil Melton told
David was one-half of the cost of repairing the culvert and entranceway from the county road to
the driveway or roadway, and Lytle cashed the check. 59
H. The Petruskas had a valid easement on May 16, 2008.
15. The Petruskas believed that they had or acquired a valid easement, attached to
their property, to use and drive vehicles on the driveway or roadway located on 1603 Van Zandt
County Road 2319, on May 16,2008.60 First, their general warranty deed (dated May 26, 2008)
54
See David Petruska's Affidavit, '1[13, Tab 1.
55
See David Petruska's Affidavit, '1[13, Tab 1.
56
See David Petruska's Affidavit, 'i 14, Tab 1.
See David Petrus~'s Affidavit, 'i 15, Tab 1; Sandra Petruska's Affidavit, 1 15, Tab 2.
57
58
See David Petruska's Affidavit, 'i 15, Tab 1; Sandra Petruska's Affidavit, 1 15, Tab 2.
59
See David Petruska's Affidavit, 'i 15, Tab 1.
60
See David Petruska's Affidavit, n
16-17, Tab 1; Sandra Petruska'
DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S ~:Sll-(>f'ITE>~ Page 12
MOTION FOR SUMMARY JUDGMENT ON LIABILITY,.....,,....,..,.,..._.
MOTION FOR CONTINUANCE .
RECORD 12
set out the easement. 61 Second, an independent surveyor confirmed the easement :in April
2008. 62 Third, they believed, based on conversations with the Gutzkes, that the Gutzkes had
63
used and driven vehicles on the driveway or roadway for years before May 16, 2008. Fourth,
64
Thomas Lytle aclmowledged the easement :in a phone call with Sandy in April or May 2008.
Fifth, the two properties shared one mail-box post at the corner of the driveway and VanZandt
County Road2319 when in May 2008. 65 Moreover, the Petruskas' beliefs were confirmed by
their experience in using and driving vehicles on the driveway between May 2008 and February
2014 without complaint from the Lytles or anyone else. 66 Mr. Lytle's later acceptance and
cashing of the check for what Commissioner Melton said was one-half of the cost to replace the
culvert and repair the affected part of the driveway also confirmed their beliefs. 67
I. The Petruskas committed no fraud.
16. Their information as of May 16, 2008, including that set out in paragraph 15,
shows that the Petruskas did not commit any fraud, including fraud under section 12.002 of the
Civil Practice & Remedies Code. 68 They had a valid easement and documentation to support this
61
See David Petruska's Affidavit,,, 16-17, Tab 1; Sandra Petruska's Affidavit,~, 16-17, Tab 2.
62
See David Petruska's Affidavit, ,, 16-17, Tab 1; Sandra Petruska's Affidavit, ~ 16-17, Tab 2.
63
See David Petruska's Affidavit, ,, 16-17, Tab 1; Sandra Petruska's Affidavit, m116-17, Tab 2.
64
See David Petruska's Affidavit,,, 16-17, Tab 1; Sandra Petruska's Affidavit,,, 16-17, Tab 2.
65
See David Petruska's Affidavit, , 17, Tab 1; Sandra Petruska's Affidavit, , 17, Tab 2.
66
See David Petruska's Affidavit,, 17, Tab 1; Sandra Petruska's Affidavit,, 17, Tab 2.
67
See David Petruska's Affidavit, , 17, Tab 1.
68
See David Petruska's Affidavit, , 1&, Tab 1; Sandra Petruska's Affidavit, , 1&, Tab 2.
Page 13
RECORD 13
~ .
i .
conclusion. 69 They did not prepare, or participate in the preparation of, the General Warranty
Deed with Vendor's Lien (May 16, 2008), Tab C, from the Gutzkes, and the deed described the
easement70 The Petruskas did not prepare, or participate in the preparation of {beyond signing),
the Deed of Trust (May 16, 2008), Tab B, for Compass Bank, which contained the same
description of the easement.71 Given their documentation, including the independent survey and
the general warranty deed, the Petruskas did not search the deed records to see what might or
might not be reflected in the Lytles' deed or deeds. 72 Moreover, the Gutzkes said that they had
used the driveway to access the property and house for years. 73 The Gutzkes said, in the
warranty deed, that they had an easement to sell 74 An surveyor independently confirmed the
easement. 75 No one--including persons from our title company, the real~estate agents, Compass
Bank, and our surveyor~ver suggested that the easement was invalid or that the General
Warranty Deed with Vendor's Lien or the Deed of Trust were fraudulent or contained any
materially false information.76 The Petruskas never had any intention of causing a fraudulent
document to be filed of public record in conjunction with their purchase of 1601 Van Zandt
69
See David Petruska's Affidavit, -v 18, Tab 1; Sandra Petruska's Affidavit, 'j 18, Tab 2.
70
See David Petruska's Affidavit, 'i 18, Tab 1; Sandra Petruska's Affidavit, 1 18, Tab 2.
71
See David Petruska's Affidavit, 'i 18, Tab 1; SandraPe1ruska's Affidavit, -v 18, Tab 2.
n See David Petruska's Affidavit, -v 18, Tab 1; Sandra Petruska's Affidavit, 'i 18, Tab 2.
73
See David Petruska's Affidavit, 'i 18, Tab 1; Sandra Petruska's Affidavit, 1 18, Tab 2.
74
See David Petruska's Affidavit, 1 18, Tab 1; Sandra Petruska's Affidavit, 1 18, Tab 2.
15
See David Petruska's Affidavit, 'j 18, Tab 1; Sandra Petruska's Affidavit,, 18, Tab 2.
76
See David Petruska's Affidavit,, 18, Tab 1; Sandra Petruska's Affidavit, 1 18, Tab 2.
DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA' RESPONSE TO PLAINTIFFS' Page 14
MOTION FOR SUMMARY JUDGMENT ON LIABILIT , SUBJECT TO~,
MOTION FOR CONTINUANCE · ~' ':·•• • • • • • :... · ). ·:
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RECORD 14
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County Road, nor were any fraudulent documents filed in conjunction with such purchase. 77
J. David Petruska did not assert his rights to the easement with an assault rifle.
17. In paragraph 21 of Plaintiff's Motion for Summary Judgment on Liability (filed
Oct. 29, 2014), the Lytles wrote, "The Petruskas have taken actions to assert their rights to the
easement, including coming on to Plaintiffs' property and threatening Plaintiff, Thomas Lytle,
with an assault rifle." David Petruska denies this. 78 He never came on to the Lytles' property
with an assault rifle. 79 On February 15, 2014, he had an unloaded assault rifle on his gator and
was driving on his own property. 80 He had a rifle because Thomas Lytle had threatened to shoot
him and three other workers, while they were working on a fence on the Petruskas' property. 81
David never threatened Thomas Lytle with my rifle. 82 Also, his driving with the rifle had no
connection to the disputed easement. 83 The Petruskas drove on the driveway located on the
Lytles' property between May 2008 and February 2014 without complaint from the Lytles. 84
K. Moreover, the Petruskas released the easement before the Lytles filed suit.
18. On February 28,2014, the Lytles' attorney, Emily Jones Dunn, wrote the
Petruskas a letter and asserted that they didn't have a recorded easement to use the driveway or
77
See David Petruska's Affidavit, ~ 18, Tab 1; Sandra Petruska's Affidavit, ~ 18, Tab 2.
78
See David Petruska's Affidavit,~ 19, Tab 1.
79
See David Petruska's Affidavit, ~ 19 ,-T-ab 1.
80
See David Petruska's Affidavit,~ 19, Tab 1.
81
See David Petruska's Affidavit,~ 19, Tab 1.
82
See David Petruska's Affidavit,~ 19, Tab 1.
83
See David Petruska's Affidavit,~ 19, Tab 1.
84
See David Petruska's Affidavit,~ 19, Tab 1.
DEFENDANTS DAVID C. Ai~D SANDRA L. PETRUSKA'S RESJi(I)NSE TOP Page 15
MOTION FOR SUM.MARY JUDGMENT ON LIABILITY, SU · c.:t-):Q "'"" ........:
MOTION FOR CONTINUANCE ~': :: ..
; g...,t;- ftheir motion, the Lytles assert that David Petruska tried to enforce the
easement with a firearm. David Petruska denies and discusses this assertion in paragraph 19 of
his affidavit. He never entered the Lytles' property with a firearm, and he carried one only
because Thomas Lytle-who is younger, larger, and stronger than David-threatened to shoot
David and three other workers in the past.
VITI. Conclusion
Because the Petruskas have already signed (and the Lytles already filed) a release of
easement and because the Petruskas raise a genuine issue of material fact on key elements of the
Lytles' claim under section 12.002 of the Civil Practice & Remedies Code, the Court should
98
E.g., Gordon v. West Houston Trees, Ltd., 352 S.W.3d 32,46-47 (Tex. App.-Houston [1st Dist.] 2011, no pet.)
(reversing a summary judgment on a section 12.002 claim where the plaintiff failed to show that the
defendant knew that the relevant records were false or fraudulent).
DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S
MOTION FOR SUMMARY JUDGMENT ON LIABILITY, SUBJECT
MOTION FOR CONTINUANCE
RECORD 21
dismiss some of the Lytles claims because no live controversy exists and it should deny the
Lytles' motion for summary judgment on liability.
Respectfully submitted,
PEZllnULIB~S,LLP
Is/ Michael F. Pezzuili
MICHAEL F. PEZZULLI
State Bar No. 15881900
michael@courtroom.com
CHRISTOPHER L. B~S
State BarNo. 00792175
chris@courtroom.com
M. ELLEN SKINNER
State Bar No. 24033075
ellen@courtroom.com
17300 Preston Road, Suite 220
Dallas, Texas 75252-5476
(972) 713-1300
-and-
Rothweii B. Pool
Rothwell B. Pool
State Bar No. 16120500
Law Offices of Rothwell B. Pool
408 W. Nash
Terrell, Tx. 7 5160
972-524-7585
972-524-3909 (fax)
Attorneys for David and Sandra Petruska
DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S Page22
MOTION FOR SUMMARY JUDGMENT ON LIABILITY,jbB;l,IN~~~.~~1J!{..~.
MOTION FOR CONTINUANCE
RECORD 22
. ·,
CERTIFICATE OF SERVICE
I certify that on Monday, December 1, 2014 a true and correct copy of Defendants David
C. and Sandra L. Petruska's Response to Plaintiffs' Motion for Summary Judgment on Liability,
Subject to their Motion for Continuance was served by electronic notice on the below:
BARBARA L. EMERSON
Texas State Bar No. 06599400
BELLINGER & SUBERG, L.L.P.
10,000 N. Central Expy, Suite 900
Dallas, Texas 75231 -
Telephone: 214/954-9540
Facsimile: 214/954-954L
bemerson@bd-law.com
Attorney for Thomas and Ellen Lytle
Ralph E. Allen
100 East Ferguson, Suite 901
Tyler, Texas 75710-0028
Phone:903-593-9727
Fax: 903-531-2566
rallen@tyler.net
Attorney for Helmuth K. Gutzke and
Zackiann Gutzke
William "Pat'' Huttenbach
Aaron E. Homer
1415 Louisiana Street, 36th Floor
Wedge International Tower
Houston, Texas 77002
Phone:713-223-5181
Fax: 713-223-9319
ahomer@hirschwestcom
Attorney for Compass Bank
Is/ Michael E Pezzulli
Michael F. Pezzulli
DEFENDANTS DAVID C. AND SANDRA L. PETRUSKA'S Page23
MOTION FOR SUMMARY JUDGMENT ON LIABILITY,
MOTION FOR CONTINUANCE
RECORD 23
NO. 14-00172
THOMAS L Y1LE AND ELLEN § IN TifE DISTRICT COURT
LYTLE, §
§
V. §
§
DAVID C. PETRUSKA, SANDRA L. § 294th JUDICIAL DISTRICT
PETRUSKA, COMPASS BANK, §
HELMUTH K. GUTZKE, and §
ZACK.IANN GUTZKE · § VANZANTITCOUNTYTEXAS
AFFIDAVIT OF DAVID C. PETRUSKA
1. My name is David. C. Petruska. I am one ofthe defendants in this case. My wife
is Sandra L. Petruska, who is another defendant. I am competent to make this affidavit. My
personal knowledge is based on my first-hand experience in buying, with my wife, the property
at 1601 VanZandt County Road 2319 in May 2008; my experience in driving on the disputed
driveway between January 2008 and February 2014 with no protest from Thomas or Ellen Lytle;
my experiences in living on or visiting the property regularly between May 2008 and the present;
my personal reviewofthe General Warranty Deed with Vendor's Lien we received from
Helmuth and Zackiann Gutzk:e, the Deed of Trust we signed with Compass Bank, the release of
easement I signed and returned to the Lytles' attorney in March 2014, and the Lytles' original
petition, which is in the Court's file; my personal conversations with the Gutzkes, the Lytles,
representatives of Compass Bank, and Registered Professional Land Surveyor No. 1935 Gearld
A. Carter, as discussed below; and my personal review of other documents and photographs
discussed below. The facts I discuss are within my personal knowledge and are true and COlTect.
A. Property: 1601 VanZandt County Road 2319
2. . My wife, Sandra, and I own the property at 1601 Van Zandt County Road 2319,
Canton, Texas. The property consists of just over 25 acres that lie just south of VanZandt
County Road 2319, which runs roughly east and west. A house sits on the property back from
the driveway on the neighboring prope1ty. To best of my knowledge the house was on the
property since some time in 1997 when it was built, and a diagram from a 2008 survey shows a
"concrete slab" at the house's location and the diagram states, "Revised 6-9-97." A true and
correct copy of the survey is at Tab I. Thus, I believe that the house was built by or in 1997.
B. Neighboring Property: 1603 VanZandt County Road 2319
3. Thomas and Ellen Lyt1e claim to own the neighboring property at 1603 Van
Zandt County Road 2319, which also lies south of the count
Affidavit of David C. Petruslrn - Page 1
Tab] ·
RECORD 24
-·
C. Driveway or Roadway
4. The properties at 1601 and 1603 Van Zandt County Road 2319 are contiguous
along a boundary on the west side ofl601 (or the east side of 1603) running southwest from Van
Zandt County Road 2319. A driveway or roadway, located on 1603 Van Zandt County Road
2319, runs southwest from the county road along the boundary line towards the houses on both
properties. For years, there has been a tum off from this driveway or roadway that connects to a
bam or other fann building and, later since 1997, the house on 1601 VanZandt County Road and
a separate tum off from the driveway that connects to the house on 1603 Van Zandt County
Road. ·Before February 2014, Thomas Lytle told me that this driveway or roadway was a former
county road and that one of his predece~sor landowners bought it from the county.
5. A true and correct diagram of the properties is at Tab I. This diagram accurately
depicts the relevant portion ofVan Zandt County Road 2319, the "private road" or driveway on
the Lytle's land, and our property. True and correct photographs of the properties are at Tab J.
These photographs depict the properties, including the disputed driveway with its tum offs that
lead to the houses on each parcel, as they existed after we bought the property in May 2008 and
before the Lytles first disputed our use of the driveway in February 2014.
D. Easement
6. The photos of the road at Tab J show that the persons living in the house on 1601
Van Zandt County Road 2319 used and drove vehicles on the driveway or roadway on 1603 Van
Zandt Cowty 2319 for access to and from the house to the county road. The driveway or
roadway was there when my wife and I bought 1601 VanZandt County Road in May 2008, and
it was obvious from the driveway and its wear, tear, and tracks, by then, that the driveway had
been heavily used by both properties. For example, the driveway had a separate and well-worn
split offleading to the house on 1601 VanZandt County Road by May 2008. Both properties,
1601 and.l603 VanZandt County Road 2319, shared one mail-box post at the comer of the
·driveway and the county road between May 2008 and February 2014.
E. Title Company
7. On or about April 10, 2008, our title company-Elliott & Waldron Abstract &
Title Company ofCanton, Texas-wrote us a letter. A true and correct copy of the letter is at
Tab F. Schedule B ofthe accompanying Commitment for Title Insurance ''Exceptions from
Coverage," states, in part, ''In addition to the Exclusion and Conditions and Stipulations, your
Policy will not cover loss, costs, attorneys' fees, and expenses resulting from ... 10. Easements
or claims of easements which may or may not be recorded in the public records of Zandt County,
Texas." At the time of our purchase I believed that this exclusion from our title policy was .
standard language. I did not believe that this language referred specifically to the easement set
out in the General Warranty Deed with Vendor's Lien from the Gutzkes. Also, I don't believe
that the title company was telling us that the easement to use the driveway was
invalid or non-existent I understood the company to be saying that it juSt
easements. Also, no one from the title company told us tha ~e easem1:nt
Affidavit of David C. Petruska ·
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General Warranty Deed was not valid. In fact, no one at all, including the title company
personnel, the bank personnel, the Gutzkes, or anyone else, ever suggested that the easement
identified in the General Warranty Deed was not valid. From January 2008 during the times we
visited the property to make our purchase decision, we drove our vehicle on the subject driveway
to access the property. So did the realtors and others involved in our purchase. No one,
including the Lytles, complained about this.
8. As Exhibit B(1) to Plaintiff's Motion for Summary Judgment on Liability (filed
Oct. 29, 2014), the Lytles attached a copy of our title policy for the property. Schedule B
(Exceptions) states, in part, "We do not cover loss, costs, attorneys' fees and expenses resulting
from: ... 6(1) We do not insure access yia the roadway shown on property owned Lytle adjacent
to NW line of property shown on survey dated April23, 2008 by Gerald A. Carter." I did not
receive a copy of the title policy at the time of closing on May 16, 2008. Buyers ordinarily do
not receive copies of the title policy at the time of the closing. Closings are predicated on the
title commitment. ·Title companies customarily provide a final title policy four to six weeks after
a closing. In fact, I'm not sure when I first saw a copy of my title policy, but it was long after
closing. Also, the title company is not stating that the easement shown on the General Warranty
Deed with Vendor's Lien (dated May 16, 2008) from the Gutzkes is invalid.
F. lndependentSurvey
9. In early 2008, my wife and I engaged an independent surveyor, Registered
Professional Surveyor No. 1935 Gearld A Carter, to survey the property we pl~ed to purchase
at 1601 Van Zandt County Road 2319 and to confirm the property's boundaries as is customary.
After he perfonned his work, Mr. Carter provided us and the title company with a survey, field
notes, and diagrams. True and correct copies of this survey, field notes, and diagrams are at
Tab A. Although I am not an expert at reading technical surveys or diagrams, I understand that
the documents at Tab A likewise confirm and docwnent this easement. I had this understanding
in 2008, as well, when we had our General .Warranty Deed witli Vendor's Lien and our Deed of
Trust recorded in VanZandt County's public land records.
G. We (the Petruskas) bought 1601 VanZandt County Road 2319.
10. On April 24, 2008, my wife and I, on the one band, and the Gutzkes, on the other
hand, signed an amendment to the real-estate contract for the property, chiefly to make me
(David Petruska) a party-buyer to the contract A true and correct copy of the amendment is at
Tab D. At the time, the title company recommended that the parties obtain documentation of the
easement signed by the Lytles. Exhibit A to the amendment stated, "Closing is conditioned upon
conveyance of easement acceptable to buyers allowing access to said property from private
driveway owned by Ms. Lytle." In April or May 2008, my wife called Thomas Lytle about
signing a paper to meet the title com~any's suggestion. She told me that Thomas Lytle had said
that he didn't want to spend money on an attorney to confirm an easement that was clear or
obvious that residents of 1601 Van Zandt Co\mty Road 2319 bad possessed and used for years. I
repeat this to help explain my conclusion, discussed belo_w, 'that we had easement to use
the driveway when we bought our property and why ''relied on the of the
Affidavit of David C. Petruska - Page3
RECORD 26
easement we bad and why we didn't obtain further documentation of the easement.
11. On or about May 16,2008, my wife and I, relying in part, on the representations
in the General Warranty Deed as well as the representations of 'rom Lytle in his phone
conversation with Sandy, purchased the real property consisting of just over 25 acres ofland,
with a house and other buildings, at 160 I Van Zandt County Road 2319, being described in that
General Warranty Deed with Vendor's Lien dated May 16,2008, from Helmuth Gutzke and
Zackiann Outzke, recorded with Document Number 2008-004602 of the deed records of Van
Zandt County, Texas. A true and correct copy of the warranty deed is at Tab C.
12. On May 16, 2008, my wife miQ I, on the one hand, and the Gutzkes, on the other
hand, signed another amendment, which stated, in part, "Seller and Buyer agree to waive the
condition of the contract relating to obtaining an easement from Thomas M. or Ellen Lytle." A
true and correct copy of this amendment is at Tab E. I believed that we did not need any
additional documentation of the easement. First, our general warranty deed (dated May 26,
2008) set out the easement Second, an independent surveyor confirmed the easement in April
2008. Third, I believed that the Gutzkes had used and driven vehicles on the driveway or
roadway for years before May 16,2008. Fourth, my wife, Sandy, bad reported to me that
Thomas Lytle had acknowledged the easement in his phone conversation with her.
13. The Gutzkes stated that they owned fee simple title to the property, including the
easement, at the time we purchased it By the terms of the General Warranty Deed, the Outzkes
warranted the title conveyed to us including the easement In part, the Deed stated, "All that
certam lot, tract or parcel ofland . . . of the called 5.753 acre first tract and all of the called 20.00
acre second tract .. . together with an Easement for Roadway si~ in VanZandt County,
State ofTexas, on the M.V. Lout Survey, A-468 and being a part of the called 68.78 acre tract
conveyed to Thomas M. Lytle and Ellen Lytle, by Ricky Lee Hadley, by General Warranty Deed
. .. and part of the called 1.10 acre tract conveyed to Thomas M. Lytle and Ellen Lytle ... ."
The Gutzlces executed and delivered the General Warranty Deed to us pursuant to a purchase
agreement and in consideration of the purchase price paid that we paid to the Gutzkes including
purchase of the easement My wife and I .have performed or met all of our material obligations
under the purchase agreement.
14. On or about May 16, 2008, my wife and I also signed a Deed ofTrost, which
contained the same property description and easement language as the General Warranty Deed
with Vendor's Lien, as part of securing a loan from Compass Bank. A true and correct copy of
the Deed of Trust is at Tab B.
15. Between May 16,2008 and February 2014, my wife and I used and drove on the
driveway on the Lytles' property without complaint. Both properties shared a single mail-box
post at the corner of the county road and the driveway or roadway. Before February 2014, I gave
Thomas Lytle a check for what Coun\y Commissioner Virgil Melton told me was one-half of the
cost of repairing the culvert and entranceway from the county road to the driveway or roadway,
and Lytle cashed the check. ·
Affidavit or David C Petruska -Page4
Tab 1
RECORD 27
H. We had a valid easement.on May 16, 2008.
16. I have been a licensed attorney in Texas (No. 15853200) since September 1982. I
have a solo practice, Petruska & Associates, PLLC. I chiefly practice municipal fmance law.
17. Although I am not a real-estate attorney, ifs my opinion that my wife and I had or
acquired a valid easement, attached to our property, to use and drive vehicles on the driveway or
roadway located on 1603 VanZandt County Road 2319, on May 16,2008. First, our general
warranty deed (dated May 26, 2008) set out the easement. Second, an independent surveyor
confirmed the easement in April2008. Third, I believed, based on conversations with the
Gutzkes, that the Gutzkes·had used and driven vehicles on the driveway or roadway for years
before May 16,2008. Fourth, my wife's conversation with Thomas Lytle indicated that
Mr. Lytle confirmed the easement. Fifth, the two properties shared one mail-box post at the
comer of the driveway and Van Zandt County Road 2319 when we bought the property.
Moreover, my belief was con:finned l?Y my and my wife's experience in using and driving
vehicles on the drive-Way between May 2008 and February 2014 without complaint from the
Lytles or anyone else. Mr. Lytle's later acceptance and cashing of my check for what I was told
by Commissioner Melton was one-half of the cost to replace the culvert and repair the affected
part of the driveway also confirmed my belief.
I. We committed no fraud.
18. Our information as of ~y 16, 2008, including that set out in paragraph 17, shows
that my wife and I did not commit any fraud, including fraud under section 12.002 of the Civil
Practice & Remedies Code. We had a valid easement and documentation to support this .j
conclusion. My wife and I did not prepare, or participate i:o the preparation of, the General
Warranty Deed with Vendor's Lien (May 16, 2008), Tab C, from the Gutzkes to us, and the deed
described the easement. My wife and I did not prepare, or participate in the preparation of
(beyond signing), the Deed of Trust (May 16, 2008), Tab B, for Compass Bank, which contained
the same description of the easement. Given the documentation I had, including the
independent survey and the general warranty deed, I did not search the deed records to see what
might or might not be reflected in the Lytles' deed or deeds. Moreover, the Gutzkes said that
they had used the driveway to access the property and house for years. The Gutzkes said, in the
warranty deed, that they had an easement to sell us. Our surveyor independently confirmed the
easement. No one-including persons from our title company, the real-estate agents, Compass
Bank, and our surveyor-ever suggested that the easement was :invalid or that the General
Warranty Deed with Vendor's Lien or the Deed of Trust were fraudulent or contained any
materially false information. I never had any intention of causing a fraudulent document to be
filed of public record in conjunction with our purchase of 1601 Van Zandt County Road nor
J.
.
were any fraudulent documents filed in conjunction with such purchase. I never used the deeds
with an intent to cause anyone, including the Lytle's financial injury or emotional distress.
.
I did not assert our rights to the easement with an assault rifle.
19. In paragraph 21 of Plaintiff's Mo1nnamft;R..._. •.u.u.-u;
Oct. 29, 2014), the Lytles wrote, ''The
Affidavit of David C. Petruska -PageS
RECORD 28
easement, U)cluding coming on to Plaintiffs' properly and threatening Plaintiff: Thomas Lytle,
with an ns:mult rifle." This is false. I never came on to the LyUes' property with an assault dfle.
On February 15, 2014, I had an unloaded assault rifle on my gator and was driving on my own
property. I had my rifle because Thomus Lytle had threatened to shoot me and three other
wol'kers, while we were working on a fence on our pt'Opet1y. I never threatened Thomas Lytle
with my rifle. Also, my driving with the rifle in my gator had no connection to the disputed
easement. Again, my wife and I drove on the drive~y located on the Lytles' property between
May 2008 and February 2014 without complaint fiom lhe Lytles.
K. Moreover, we released the easement before the Lytles filed suii.
20. On February 28, 2(}14, the Lytles, attorney, Emily Jones Dunn, wrote my wife
and me a letter and asserted that we didn~t have a recorded easement to use the driveway or
roadway on the Lytles' property which create~) a Cloud on their tille. Sbe offered, "I am
requesting that you execute the enclosed release stating thai there is no easement Jfl do not
receive n p1·opedy executed release within 30 days fi'om the date of this Jetter, I am prepared to
littgate." A tn1e and correct copy of this Jetter is at TabG.
21. 1 believed that the t)t1orney was incon·ect for sevGral reasons. First, our geoet·at
warranty docd (doted May 16, 200R) reflected the easement. Second, nn independent sun;eyor
confirme.d lh~ easement in April 200ft. Third, 1 believed thnt the re~;idenls of1601 VanZandt
County Road 231911ad used and drivon vehicle~; on the drivewuy or roadway fer mnny years and
my wife and 1 had. used the dl'ivewny between May 2008 and Febnmry 2014 without complaint.
Nonetheless, in an effort to uvoid litigation ~ll1d ftlrther problems, my wife an(' 1 accepted the
LytJes' offel' and signed the relea.-;(: of easement and returned it to the Lytlc~s' attorney on
March 26, 2014. A true and correct copy of our !'etum letter anclthe J'elease of easement is aL
TnbH. I would no! hove signed the relense of casement or returned it, unless the Lytles hud
agreed, in ret.mn, not lo sue my wife und tnc over th<~ t~t!iement.
22. Again, my wife and l fully pertorrued all of our material duties tmde.r our contract
with the Lytles, under which the.:~ Lytles agreed JIOt to sueur. over !he easement in exchange for a
signed release or casement. ln contl'ast, the Lytles materinlly breached the contracl by (a) filing
1his luwstiit on July 9, 2014, (b) filing a motion for s.ttmmary judgment on October 29, 2014, nnd
(c) continuing th.is lawsuit. The Lytle:;' material breaches have proximately caused, and contimm
to cause, LIS damages.• including attomey's fees and litigation expenses.
23. 1 swear or affi.rm to these facts withiu the meaning of section 312.0 11{1) of lhe
Texas Government Code.
Date: December 1, 201 4.
/ ..J . · · '(
1.• ~·~:··. .., ;, .
, RECORD 29
/, j)
Before me, _.....;(.....;,~~.:;...=:..·_.....;·./~~.N<-_..:...1_.····~~'-----·• on this day personally appeared David C.
Petruska, who established his.identify with his Texas driver's license, to be the person whose
name is subscribed as a witness to the foregoing instrument. David C. Petruska swore to the
statements in the above affidavit before Ill;e, and I am officially certifying this document under
I
my seal of office 'under section 312;011 (1) of the Texas Govamnenf Code. I run a notary public,
and Texas law authorizes a notary public to administer an oath and certify the fact of a person
making an oath. in section 602.002(5) of the Texas Government Code.
/ "\
{t,._._ l.;J,,.;t(
Notary Public
Affidavit of David C. Petruslc~ · -Page 7
RECORD 30
FIELD NOTES
SANDRA L. PETRUSKA M. V. LOUT SURVEY
24.020 ACRES ABSTRACT NO. 468
VANZANDT COUNTY, TEXAS
All that certain lot, tract or parcel ofland situated in VanZandt County, State ofTexas, on theM.
V. Lout Survey, A-468, and being all of the residue of the called 5.753 acre frrst tract and all ofthe called
20.00 acre second tract conveyed to Helmuth K. Gutzke and wife, Zackiann Gutzk:e, by A. D. Ward, a
single man, by Warranty Deed with Vendor's Lien dated July 30, 1990, and recorded in Volume 1207,
Page 390, of the VanZandt County Real Records. Said lot, tract or parcel of land being more particularly
described by metes and bounds as follows:
BEGINNING at a Y:." iron rod found for corner at the Southeast corner of the called 20.00 acre
second tract, at the Southwest comer of the Arthur C. Werden tract recorded in Volume 2028, Page 309,
of the VanZandt County Real Records, and in the Northeast line of the Thomas M. Lytle 68.78 acre tract
recorded in Volume 1771, Page 609, of the VanZandt County Real Records, from WHENCE a fence
corner found bears North 78 degrees 05 minutes 37 seconds West 2.58 feet;
THENCE NORTH 44 degrees 40 minutes 21 seconds West 648.90 feet to a 5/8" iron rod set for
corner at the South comer ofthe Thomas M. Lytle 1.622 acre tract recorded in Volume 2188, Page 463,
of the VanZandt County Real Records;
THENCE NORTH 43 degrees 59 minutes 44 seconds East 105.86 feet to a Y:!" iron rod found for
comer at the East comer of the said 1.622 acre tract;
THENCE NORTH45 degrees 25 minutes qo seconds West 668.07 feet to a W' iron rod found for
corner at the North corner of the called 1.622 acre tract, in the original Northwest line of the called 5.753
acre ftrst tract, and in the Southeast line ofthe Thomas M. Lytle l.lO acre tract recorded in Volume 1771,
Page 629, of the VanZandt County Real Records;
THENCE NORTH 44 degrees 05 minutes 12 seconds East 1152.76 feet to a railroad spike set for
corner in County Road No. 2319, at the North corner of the called 20.00 acre second tract, from
WHENCE a 60d nail found at the East corner of the said Thomas M. Lytle 1.10 acre tract bears North 44
degrees 05 minutes 12 seconds East 2.65 feet and a Yz" iron rod found in the South right of way of the
said county road bears South 38 degrees 58 minutes 47 seconds West 23.09 feet;
THENCE SOUTH 81 degrees 39 minutes 33 seconds East along the said county road and the
North line of the called 20.00 acre second tract, 322.19 feet to a railroad spike set for corner in the South
line of the B. W. Ward 106.60 acre frrst tract recorded in Volume 1654, Page 588, of the Van Zandt
County Real Records, at the Northwest corner of the said Arthur C. Werden tract and at the Northeast
corner of the called 20.00 acre second tract, from WHENCE a 5/8" iron rod set in the South right of way
line of the said county road bears South 08 degrees 20 minutes 49 seconds West 19.00 feet and a 48"
Pecan tree found marked X with two hacks above and below the X bears North 62 degrees 57 minutes
East 60.40 feet; li'
THENCE SOUTH 08 degrees 20 minutes 49 """''"'ll'!.;lv•.• East line of the called 20.00
acre second tract and the West line of the said 98 feet to the place of
beginning and containing 24.020 acres of land.
RECORD 31
SURVEYOR'S CERTIFICATE
..
I, Gearld A. Carter, Registered Professional Land Surveyor No. 1935, do hereby certify that I
directed the survey of the above described tract of land and prepared the above field notes descn'bmg the
boundaries of same just as they were found and surveyed upon the ground, and this survey is made in
accordance with the STANDARDS FOR LAND SURVEYS of the TEXAS BOARD OF
PROFESSIONAL LAND SURVEYING, as revised in November, 29J).7">-~nd will meet the accu.racy .
requirements as set out in RULE 663.15C as defined therein. .....-;;~~;::;::: .
--~
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WITNESS my band and seal at Athens, Texas, this 2-..rn v""'"""··"·~cr~~i~: _
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Tab A
RECORD 32
COV. CONC. PORCH
CONC. DR.
24.020 ACRE$
ACTUAL BEARING AND DISTANCE
CALLS
NUMBER DIRECTION DISTANCE COV. CDNC, IJALK
CONe. PORCH
1 N 44.40'21' 'W 648.90' BRG. N4S•03''W .BRICK PA TI!] .....__..,......__..
2 N 43.59'44' E 105.86' . N46.49'34"'E 105.78' HOT TUB
3 N 45.25'00' VI 668.07' N42•39'17''W 668.07' INSET SCALE 1' = 40'
4 N 44.05'12' E 1152.76' BRG. N44.34'E
5 S 81.39'33' E 322.19' $81.16'E 319.61' Scnle• 1' = 200'
6 s o8·co'49' 'W 1806.98' so8·44''W 1804.58'.
0.448 ACRE EASEMENT
ACTUAL BEARI~ AND DISTANCE
NUMBER DIRECTION DISTANCE CALLS
7 s 84 ·55'25' E 21.41' S82.08'20'E 21.37'
8 s 85.03'04' E 14.94' S82.08'20'E 14.92'
9 S 44.05'12' VI 674.24' BRG. $44.34'\Y
10 N 45.54'48" VI 30.71'
11 N 44.18'18' E 651.34'
RECORD 33
CALL 20.00 AC
2ND TR. 1207/390
V.Z.C.R.R.
,f'lm
$5
oJ)
~
M.V. LOUT SUR. A-468 N
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PLAT OF SURVEY
LEGAL DESCRIM10N OF LAND: All th.at rulllliD lot, tract or par.:elufland situated iA Vu
Zalldt Collllty, Stare of Texas, oa ttf M. V. [Aut ~ey, A-468, ud hda~ all or the residue of the
ralltd 5.753 aero fll8t traet ud au or the a~Ued lD.OO acre &eeond tntet conveyed to Helmuth K.
Gultke a11d wtl'C, Zuklann Gu!Zke, by A. D.·W21'11, a tlntl• mu, by WerTIInty Dnd wltb Vendor's
Uen dated Jul)' JO, 19?0, and nocorded in Volume 1107, Pa.. 3!10, ofUe Vaa Zlmdt Conly Real
Recorda and all tbat certain lot, trad er parcel of land sitated ia Vu ZDIIdt County, State o(
Tau, on I be 1\L V. Loat Survey, A-468, ud bela:: a pilrt of die celled 68.78 acre Ired conveyed to
1-"'j Tllomu M. Lytle ud Ellen Lytle, by Ricky 1M Hadley, by Geaenl Warnaty Deed ncorded Ia
~ Volame 1771, Pageli09, oftbe Van Z..adt Cauaty Rtal Recordl, ud a part of die calJed Ullacre
> tract coll'l'eytd to Thom.u M. Lytle aad Ellen Lytle, by rudcy Lee lladlcy, by General Warranty
Deed recorded in VolU>•l771, Page Iilli, of tb'l Van Zaadt County Real hcords. Said lot, tract or
parul of11111d hala& more particularly described by motu and ltoaada attadaad ..reto;
PROPERTY ADDRESS
1601 VZCR 2319
CANTON, TEXAS 75103
I, Gtarld A. Car:er, Recbtered Protesoloaal Land 5ui"Yeyor No. 1935, do btreloy certify to
Sndra L. Pl!lruska, buyer, IAaDIOarce Real Estate Loau,lender ud Elliott and Waldron ntJe
Co•paay, tbat the plat shown hereon accllraUiy repreMDls tile reoalta of u oa lila p-oaad aarvey
made under my dindioa and saperrislon oa .April 13.1008, and aU mo11uments were fouad or ••t
ud actually aat ud tbe location aad dNCriplioa are comedy doow., tbe boii.Odariolo, dimensions
and other detalb •b.-a llereoa are truo and c:Grrect u determined by survey, there are no Yblble
encroacbmeats on the property or protrulou tberafrom, euept u sbftra bn-eoa, there an no
visible discnpoaae., c:oaWcta, sborta&B!. areas or boaadary Uae coii1Jicta, except aa ollowa
bereen, tbe lin, location ud type oflmpronmeats are as sbowa boreoll aad all are located witbln
tbe boundaries oft be property, except .. obowa bereoa, ud Ibis sarvcy b made Ia accordance
"itll THE STANDARDS FOR LAND SURVEYS oftbe TEXAS BOARD OF PROFJ:SSlONAL
LAND SURVEYING as revised In Nonmber :ZOO?, and will mat the acCIU'IIcy reqolrelllleutJ liS set
oat In R .15C, ,... dermed therein.
. ,.
SURVEY FORI SANDRA L. PETRUSKA M. V. LOUT SURVEY, A-4ti8
GF#080l58 VANZANDT COUNTY, TEXAS
GEARLD A- CARTER AND ASSOCIATES1 LAND SURVEYORS
P.O. BOX 1445,
ATHENS, TEXAS 75751
903-675-7346
RECORD 34
··.· ···.·
After recording please mail to:
Compass Bank
401 West Valley Avenue
Homewood, AL 35209
Marie Yamane
- - - - - - ' - - - - - - - - - [ S p a c e Above Thill Line For RecordiasData] _ _ _ _ _ _ _ _ __
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING
. INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN
REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN mE PUBLIC RECORDS:
YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
DEED OF TRUST
Loan # *private*
DEFINITIONS
Words used in multiple sections of this document are defmed below and other words are defmed in Sections 3, 11,
13, 18,20 and 21. Certain rules regarding the usage of words used in this document are also provided in SeE:tion
16.
. .
(A) "Security Instrument" means this document, which is dated May 16, 2008, together with all Riders to
this document.
(B) "Borrower" is David C. Petruska and wife, Sandra L. Petruska. Borrower is the grantor under this
Security Instrument.
(C) "Lender" i11 Compass Bank . Lender is a state bank organized and existing under the laws of
Alabama. Lender's address is PO Box 13345 Birmingham, AL 35202. Lender is the beneficiary under this
~ty Instrument.
(D) "Trustee" is Jon Mu1kin . Trustee's address is 401 West Valley Avenue, Homewood, AL 35209.
(E) "Note" means the promissory note signed by Borrower and dated May 16, 2008. The Note states that
Borrower owes Lender Two Hundred Seventy Four Thousand Five Hundred and 00/100 Dollars (U.S.
$274,500.00) plus interest. Borrower has promised to pay this debt in regular Periodic Payments and to pay the
debt in full not later than June 1, 2038.
(F) "Property" means the property that is described below under the heading "Transfer of Rights. in the
Property."
(G) "Loan" means the debt evidenced by the Note, plua interest, any prepayment charges and late charges due
under the Note, and all smns due under this Security Instrument, plus interest.
*
(H) "Riders" means all Riders to this Security Instrument that are executed by Borrower.
Texas Deed •fTrust.sloaJe Family•Faonle Mat/Freddie Mac UNIFORM
INSTRUMENT
TabB
RECORD 35
RidciS are to be executed by Borrower [check box as applicable]: .... ,
··:-..
·..,
liJ A<(justable Rate Rider D Condominium Rider Iii Second Home Rider
0 Balloon Rider 0 Planned Unit Development Rider 0 Biweekly Payment Rider
0 14 Family Rider 0 Rate Improvement Rider 0 Graduated Payment Rider
0 VA Loan Rider 0 Manufactured Home Rider liJ Other(s): ARM, JDterest Only
(I) "'Applicable Law" m~s all controlling applicable · federal, state and local statutes, regulations,
ordinances and administrative rules and orders (that have the effect of law} as well as all applicable final, non-
appealable judicial opinions.
(J) "Community Association Dues, Fees, and Assessments'' means all dues, fees, assessments and other
charges that are imposed on Borrower or the Property by a condominium association, homeowners association or
similar organization.
(K) "Electronic Funds Transferrt means any transfer of funds, other than a transaction originated by check,
draft, or similar paper instromcnt, which is initiated through an electronic terminal, telephonic instrument,
computer, or magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an account.
Such term includes, but is not limited to, point-of-sale transfers, automated teller machine transactions, transfers
initiated by telephone, wire transfers, and automated clearinghouse transfers.
(L) "Escrow Items" means those items that are described in Section 3.
(M) "Miscellaneous Proceeds" means any compensation, settlement, award of damages, or proceeds paid by
any third party (other than insurance proceeds paid under the coverages described in Section 5) for: (i) damage to,
or destruction of, the Property; (ii) condemnation or other taking of all or any part of the Property; (iii) conveyance
in lieu of condemnation; or (iv) misrepresentations of, or omissions as to, the value and/or condition of the
Property.
(N) "Mortgage Insurance" means insurance protecting Lender against the nonpayment of, or default on, the
Loan.
(0} "Periodic Payment" means the regularLy scheduled amount due for (i} principal and interest under the
Note, plus (ii} any amounts under Section 3 of this Security Instrument.
(P) "RESPA" means the Real Estate Settlement Procedures Act (12 U.S.C. '2601 et seq.) and its
implementing regulation, Regulation X (24 C.F.R. Part 3500}, as they might be amended from time to time, or any
additional or successor legislation or regulation that governs the same subject matter. As used in this Security
Instrument, "RESPA" refers to all requirements and restrictions that are imposed in regard to a "federally related
mortgage loan" even if the Loan does not qualify as a "federally related mortgage loan" under RESPA.
(Q) "Suceessor in Interest of Borrower" means any party that has taken title to the Property, whether or not
that party has asswned Borrower's obligations under the Note and/or this Security Instrument
TRANSFER OF RIGHTS IN mE PROPERTY
This Security Instrument secures to Lender: (i) the repayment of the Loan, imd aiJ renewals, extensions and
modifications of the Note; and (ii) the performance of Borrower's covenants and agreements under this Security
Tuu Deed ofTriLSt-8111Bie Family-ftaDAit Mat/Freddie Mae UNIFORM
INSTRUMENT
2
TabB
RECORD 36
. ...·····.
'~ .....:: ~
.. . ~,
Instrument and the Note. For this purpose, Borrower ixrevocably grants and conveys to Trustee, in trust, with
power of sale, the following descn'bed property located in the County [Type of Reccrding Jurisdiction} of VanZandt
[Namo ofRcc:o~g Jurisdiction):
All that certain lot, tract or parcel of land situated in Van Zandt County, State of Texas, on theM. V. Lout
Survey, A-468, and beJng all of the residue of the called 5.753 acre first tract and all of the called 20.00 acre
second tract conveyed to Helmuth K. Gutzke and wife, Zackiann Guttke, by A. D. Ward, a single man, by
Warranty Deed with Vendor's Lien dated Jnly 3G, 1990, and recorded in Volume 1207 Page 390, of the Van
Zaodt County Real Records, together with an Easement tor Roadway situated in VanZandt County, State of
Texas, on theM. V. Lout Survey, A-468 aad being a part of the called 68.78 acre tract conveyed to Thomas
M. Lytle and Ellen Lytle, by Ricky Lee Hadley, by General Warranty Deed recorded in Volume 1771, Page
609, of the Van Zandt County Real Records and a part of the called 1.10 acre tract conveyed to Thomas M.
Lytle and Ellen Lytle, by Ricky Lee Hadley, by General Warranty Deed recorded in Volume 1771, Page
629, of the Van Zandt County Real Records and said lot; tract and pareel ofland being more particularly
described by metes and bounds in Exhibit ''A" attached hereto and made a part hereof.
which currently bas the address of
1601 VZ County Road 2319
Canton, Texas 75103
(''Property Address"]
TOGETHER WITH all the improvements now· or hereafter erected on the property, and all easements,
appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shaU also be
coveted by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the
''Property." BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and
has the right .to grant and convey the Property and that the Property is unencumbered, except for encumbrances of
record. Borrower warrants and will defend generally the title to the Property against all claims and demands,
subject to any encumbrances ofrei:ord.
TIDS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform
covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real property.
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
1. Payment of Principal, Interest, Escrow Items, Prepa'yment Charges, and Late Charges.
Borrower shall pay when due the principal of, and interest on, the debt evidenced by the Note and any prepayment
charges and late charges due under the Note. Borrower shall also pay funds for Escrow Items pursuant to Section
3. Payments due under the Note and this Security Instrument shall be made in U.S. currency. However, if any
checlc or other instrument received by Lender as payment under the Note or this Security Instrument is returned to
Lender unpaid, Lender may require that any or all subsequent payments due under the Note and this Security
Instrument be made .in one or more of the following fonns, as selected by Lender: (a) cash; (b) money order;
(c) certified check, bank check, treasurer's check or cashiers check, provided any such check is drawn upon an
institution whose deposits are insured by a federal agency, instrumentality, or entity; or (d) Electronic Funds
Transfer.
Payments are deemed received by Lender when received at the location designated in the Note or at such
other location as may be designated by Lender in accordance with the notice provisions in Section 15. Lender may
return any payment or partial payment if the payment or partial payments are insufficient to bring the Loan
current. Lender may accept any payment or partial payment insufficient to bring the Loan current, without waiver
of any rights hereunder or prejudice to i~ rights to refuse such payment or partial payments in the future, but
· Lender is not obligated to apply such payments at the time such payments are accepted. If each Periodic Payment
Texas Deed Gf Trust-single Famlly-Fanni~t Mat/Freddie Mac UNIFORM
INSTRUMENT
3
TabB
RECORD 37
I
I'
0 •• : . :.=.~~.
is applied as of its scheduled due date, then Lender need not pay interest on unapplied funds. Lender may hold ' . :·
such unapplied funds until Boll'Ower makes payment to bring the Loan current. If Borrower does not do so within
a reasonable period of time, Lender shan either apply such funds or retwn them to Borrower. If not applied
earlier, such funds will be applied to the oubltanding principal balance Wlder the Note inunediately prior to
foreclosure. No offset or claim which Botrower might have now or in the future against Lender shall relieve
Borrower from making payments due Wider the Note and this Security Instrument or performing the covenants and
agreements secured by this Security Instrument
2. AppUcaUon of Payments or Proceeds. Except as otherwise described in this Section 2, all
payments accepted and applied by Lender shan be applied in the following order of priority: (a) interest due under
the Note; (b) principal due under the Note; (c) amounts due under Section 3. Such payments shall be applied to
each Periodic Payment in the order in w~ch it became due. Any remaining amounts shall be applied first to late
charges, second to any other amounts due under this Security Instrument, and then to reduce the principal balance
oftheNote.
If Lender receives a payment from Borrower for a delinquent Periodic Payment which includes a sufficient
amount to pay any late charge due, the payment may be applied to the delinquent payment and the late charge. If
more than one Periodic Payment is outstanding, Lender may apply any payment received from Borrower to the
repayment of the Periodic Payments if, and to the extent that, each payment can be paid in full. To the extent that
any excess exists after the payment is applied to the full payment of one or more Periodic Payments, such excess
may be applied to any late charges due. Voluntary prepayments shall be applied first to any prepayment charges
and then as descnoed in the Note.
Any application of payments, insurance proceeds, or Miscellaneous Proceeds to principal due under the
Note shall not extend or postpone the due date, or change the amount, of the Periodic Payments.
3. Funds for Estrow Items. Borrower shall pay to Lender on the day Periodic Payments are· d11e
under the Note, until the Note is paid in full, a sum (the "Funds") to provide for payment of amounts due for: (a)
taxes and assessments and other items which can attain priority over this Security Instrument as a lien or
encumbrance on the Property; (b) leasehold payments or ground rents on the Property, if any; (c) premiums for any
and all insurance required by Lender under SectionS; and (d) Mortgage Insurance premiums, if any, or any sums
payable by Borrower to Lender in lieu of the payment of Mortgage Insurance premiums in accordance with the
provisions of Section 10. These items are called "Escrow Items." At origination or at any time during the term of
the Loan, Lender may require that Community Association Dues, Fees, and Assessments, if any, be escrowed by
Borrower, and such dues, fees and assessments shall be an Escrow Item. Borrower shall promptly furnish to
Lender all notices of amounts to be paid under this Section. Borrower shall pay Lender the Funds for Escrow
Items unless Lender waives Borrower's obligation to pay the Funds for any or all Escrow Items. Lender may waive
Borrower's Obligation to pay to Lender Funds for any or all Escrow Items at any time. Any such waiver may only
be in writing. In the event of such waiver, Borrower shall pay directly, when and where payable, the amounts due
for any Escrow Items for which payment of Funds has been waived by Lender and, if Lender requires, shalJ furnish
to Lender receipts evidencing such payment within such time period as Lender may require. Borrower's obligation
to make such payments and to provide receipts shall for all purposes be deemed to be a covenant and agreement
contained in this Security Instrmnent, as the phrase "covenant and agreement" is used in Section 9. If Borrower is
obligated to pay Escrow Items directly, pursuant to a waiver, and Borrower fails to pay the amount due for an
Escrow Item, Lender may exercise its rights under Section 9 and pay such amount and Borrower shall then be
obligated under Section 9 to repay to Lender any such amount. Lender may revoke the waiver as tO any or all
Escrow Items at any time by a notice given in accordance with Section 15 and, upon such revocation, Borrower
shall pay to Lender all Funds, and in such amounts, that are then required under this Section 3. ·
Lender may, at any time, coJiect and hold Funds in an amount (a) sufficient to pennit Lender to apply the
Fuuds at the time specified under RBSPA, and (b) not to exceed the maximum amount a lender can roquire under
RESPA. Lender shall estimate the amount of Funds due on the basis of current data and reasonable estimates of
expenditures of future Escrow Items or othe~e in accordance with Applicable Law.
The Funds shall be held in an institution whose deposits are insured by a federal agency!. i11s~~ntality,
... .-..
Texu Deed ofTnJ$t.Single 11amlly•Faoole Ma&'Jlreddle Mac UNIFORM
INSTRUMENT
4
TabB
RECORD 38
or entity (including Lender, if Lender is an institution whose deposits are so insured) or in any Federal Honie Loan
Bank. Lender shall apply the Funds to pay the Escrow Items no later than the time specified under RESPA. ·._
Lender shall not charge Borrower for holding and applying the Funds, annually analYLing the escrow accOUnt, or
verifYing the Escrow Items, unless Lender pays Borrower interest on the Funds and Applicable Law pennits ··
Lender to make such a charge. Unless an agreement is made in writing or Applicable Law requires inter~t to be
paid on the Funds, Lender shall not be required to pay Borrower any interest or earnings on the Funds. Borrower
and Lender can agree in writing, however, that interest shall be paid on the Fu_nds. Lender shall give to Borrower,
without charge, an annual accounting of the Funds as required by RESPA. _
If there is a surplus of Funds held in escrow, as defined under RESPA, Lender shall account to Borrower
for the excess funds in accordance with RESPA. If there is a shortage of Funds held in ·escrow, as defined under
RESPA, Lender shall notify Borrower as required by RESPA, and Borrower shall pay to Lender the amoWlt
necessary to make up the shortage in accordance with RESPA, but in no more than 12 monthly payments. If there
is a deficiency of Funds held in escrow, as detined under RESP A., Lender shall notify Borrower as required by
RESPA, and Borrower shall pay to Lender the amount necessary to make up the deficiency in accordance with
RESPA, but in no more than 12 monthly payments.
Upon payment in full of all sums secured by this Security Instrwnent, Lender shall promptly refund to
Borrower any Funds held by Lender.
4. Charges; Uens. Borrower shall pay all taxes, assessments, charges, fines, and impositions
attributable to the Property which can attain priority over this Security Instrument, leasehold payments or ground
rents on the Property, if any, and Community Association Dues, Fees, and Assessments, if any. To the extent that
these items are Escrow Items, Borrower shall pay them in the inanner provided in Section 3.
Borrower shall promptly discharge any lien which has priority over this Security Instrument unless
Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to
Lender, but only so long as Borrower is performing such agreement; (b) contests the lien in good faith by, or
defends against enforcement of the lien in, legal proceedings which in Lender's opinion operate to prevent the
enforcement of the lien while those proceedings are pending, but only until such proceedings are concluded; or (c)
secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security
Instrument. If Lender determines that any part of the Property is subject to a lien which can attain priority over
this Security Instrument, Lender may give Borrower a notice identifying the lien. Within 10 days of the date on
which that notice is given, Borrower shall satisfy the lien or take one or more of the actions set forth above in this
Section 4.
Lender may require Borrower to pay a one-time charge for a real estate tax verification and/or reporting
service used by Lender in connection with this Loan.
5. Property Insurance. Borrower·shall keep the improvements now existing or hereafter erected
on the Property insured against loss by fire, hazards included within the tenn "extended coverage", and any other
hazards including, but not limited to, earthquakes and floods, for which Lender requires insurance. This insurance
shall be maintained in the amounts (including deductible levels) and for the periods that Lender requires. What
Lender requires pursuant to the preceding sentences can change during the term of the Loan. The insurance carrier
providing the. insurance shall be chosen by Borrower subject to Lender's right to disapprove Borrower's choice,
which right shall not be exercised unreasonably. Lender may require Borrower to pay, in connection with this
Loan, either: (a) a one--time charge for flood zone determination, certification and tracking services; or (b) a one-
time charge for flood zone determination and certification services and subsequent charges each time remappings
or similar changes occur which reasonably might affect sucb determination or certification. Borrower shall also be
responsible for the payment of any fees imposed by the Federal Emergency Management Agency in connection
with the review of any flood zone determination resulting from an objection by Bonower,
Jf fWQ;QDiG~ r~lJ~ ~0 maiDfiliD ODII o\ tpo ~;~ouO'IIIao•• J• ..:t'1 ·J· · I I 1• ~ ~
HHarrower atls 0 mam!am aw ol' the covemges escrtbecl above, Lender may obtam msurance
coverage, at Lender's option and Borrower's expense. Lender is under no obligation to purchase any particular
type or amount of coverage. Therefore, such coverage shall cover Lender, but might or
Borrower, Borrower's equity in the Property, or the contents of the Ptoperty, against any
Texas Deed oCTrust.Single Famlly.Faanie Mae/Freddie M•c UNIFORM
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..... ··.;
. . ·.
~
and might provide greater or lesser covetage than was previously in effect. Borrower acknowledges that the cost of .
the insurance coverage so obtained might significandy exceed the cost of insurance that Borrower could have .
obtained. Any amounts disbursed by Lender under this Section 5 shall become additional debt of Borrower secured."
by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and
shall be payable, with such interest, upon notice from Lender to Bonower requesting payment
A~ insurance policies required by Lender and renewals of such policies shall be subject to Lender's right
to disapprove such policies, shall include a standard mortgage clause, and shall name Lender as mortgagee and/or
as an additional loss payee. Lender shall have the right to hold the policies and renewal certificates. If Lender
requires, Borrower shall promptly give to· Lender all receipt! of paid premiums and renewal notices. If Borrower
obtains any form of insurance coverage, not. otherwise required by Lender, for damage to, or destruction of, 1he
Property, such policy shall include a standard mortgage clause and shall name Lender as mortgagee and/or as an
additional loss payee.
In the event of Joss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may
make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing,
any insurance proceeds, whether or not the underlying insurance was required by Lender, shall be applied to
restoration or repair of the Property, if the restoration or repair is economically feasible and Lender's security is not
lessened. During such repair and restoration period, Lender shall have the right to hold soch insurance proceeds
until Lender has had an opportunity to inspect such Property to ensure the work has been completed to Lender's
satisfaction, provided that such inspection shall be undertaken promptly. Lender may disburse proceeds for the
repairs and restoration in a single payment or in a series of progress payments as the work is completed. Unless an
agreement is made in writing or Applicable Law requires interest to be paid on such insurance proceeds, Lender
shall not be required to pay Borrower any interest or earnings on such proceeds. Fees for public adjusters, or other
third parties, retained by Borrower shall not be paid out of the insurance proceeds and shall be the sole obligation
of Borrower. If the restoration or repair is not economically feasible or Lender's security would be lessened, the
insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with
the excess, if any, paid to Borrower. Such insurance proceeds shall be applied in the order provided for in Section
2.
If Borrower abandons the Property, Lender may file, negotiate and settle any available insurance claim
and related matters. If Borrower does not respond within 30 days to a notice from Lender that the insurance
carrier bas offered to settle a claim, then Lender may negotiate and setde the claim. The 30-day period will begin
when the notice is given. In either event, or if Lender acquires the Property under Section 22 or otherwise,
Borrower hereby assigns to Lender (a) Borrower's rights to any insurance proceeds in an amount not to exceed the
amounts unpaid under the Note or this Security Instrument, and (b) any other ofBOIIower's rights (other than the
right to any refund of unearned premiums paid by Borrower) under all insurance policies covering the Property,
· insofar as such rights are applicable to the coverage of the Pro~rty. Lender may use the insurance proceeds either
to repair or restore the Property or to pay amounts unpaid under the Note or this SeC\Jrity Instrument, whether or
not then due.
6. Occupancy. Borrower shall occupy, establish, and use the Property as Borrower's principal
residence within 60 days after the execution of this Security Instrument and shall continue to occupy the Property
as B01rower's principal residence for at least one year after the date of occupancy, unless Lender otherwise agrees
in writing, which consent shall not be Ulll'C8Sonably withheld, or unless extenuating circumstances exist which are
beyond Borrower's control.
7. Preservation, Maintenance and Protection of tbe Property; Inspections. Borrower shall not
destroy, damage or impair the Property, allow the Property to deteriorate or commit waste on the Property.
Whether or not Borrower is residing in the Property, Borrower shall maintain the Property in order to prevent the
Property from deteriorating or decreasing in value due to its condition. Unless it is detennined pursuant to Section
5 that repair or restoration is not economically feasible, Borrower shall promptly repair the Property if damaged to
avoid further deterioration or damage. If inkurance or condemnation proceeds are paid in connection with damage
to, or the taking of; the Property, Borrower shall be responsible for repairing or restoring the P~rty only if
T1101 Deed •fTrult..S.Iagle FamUy.:Pannle Mae/Freddie Mac UNIFORM
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=· ·.
Lender bas released proceeds for such purposes. Lender may disburse proceeds for the repairs and restoration in a
single payment or in a series of progress payments as the work is completed. If the insurance or condemnation
proceeds are not sufficient to repair or restore the Property, BoiTOwer is not relieved of Borrower's obligation for
the completion of such repair or restoration.
Lender or its agent may make reasonable entries upon and inspectiotlB of the Property. If it bas reasonable
cause, Lender may inspect the interior of the improvements on the Property. Lender shall give Borrower notice at
the tune of or prior to such an interior inspection specifYing such reasonable cause.
s. Borrower's Loan Application. Borrower shall be in default U: during the Loan application
process, Borrower or any persons or entities acting at the direction of Borrower or with Borrowers knowledge or
consent gave materially false, misleading, or inaccurate information or statements to Lender (or failed to provide
Lender with material information) in connection with the Loan. Material representations include, but are not
limited to, representations concerning Borrower's occupancy of the Property as Borrower's principal residence.
9. Protection of Lender's Interest in the Property and Rights Under this Security Instrument.
If (a) Borrower fails to perfonn the covenants and agreements contained in this Security Instrument, (b) there is a
legal proceeding that might significantly affect Lender's interest in the Property and/or rights under this Security
Instrument (such as a proceeding· in bankruptcy, probate, for condemnation or forfeiture, for enforcement of a lien
which may auain priority over this Security Instrument or to enforce laws or regulations), or (c) Borrower has
abandoned the Property, then Lender may do and pay for whatever is reasonable or appropriare to protect Lender's
interest in the Property and rights under this Security Instrument, including protecting and/or assessing the value
of the Property, and securing and/or repairing the Property. Lender's actions can include, but are not limited to:
(a} paying any sums secured by a lien which baa priority over this Security Instrument; (b) appearing in COUTti and
(c) paying reasonable attorneys' fees to protect its interest in the Property and/or rights under this Security
Instrument, including its secured position in a bankruptcy proceeding. Securing the Property includes, but is not
limited to, entering the Property to make repairs, change locks, replace or board up doors and windows, drain
water from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned on
or off. Although Lender may take action under this Section 9, Lender does not have to do so and is not under any
duty or obligation to do so. It is agreed that Lender incurs no liability for not taking any or all actions authorized
onder this Section 9.
Any amounts disbursed by Lender under this Section 9 shall become additional debt of Borrower secured
by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and
shall be payable, with such interest, upon notice from Lender to Borrower requesting payment.
If this Security Instrument is on a leasehold, &ttower shall comply with all the provisions of the lease. If
Borrower acquires fee title to the Property, the leasehold and the fee title shall not merge unless Lender agrees to
the merger in writing.
10. Mortgage Insurance. If Lender required Mortgage Insurance as a condition of making the
Loan, Borrower shall pay the premiums required to maintain the Mortgage Insurance in effect. If. for any reason,
the Mortgage Insurance coverage required by Lender ceases to be available from the mortgage insurer that
previously provided such insurance and Borrower was required to make separately designated payments toward the
premiums for Mortgage Insurance, Borrower shall pay the premiums required to obtain coverage substantially
equivalent to the Mortgage Insnrance previously in effect, at a cost substantially equivalent to the cost to Borrower
of the Mortgage Insurance previously in effect, from an alternate mortgage insurer selected by Lender. If
substantially equivalent Mortgage Insurance coverage is not available, Borrower shall continue to pay to Lender
the amount of the separately designated payments that were due when the insurance coverage ceased to be in effect
Lender will accept, use and retain these payments as a non-refundable loss reserve in lieu of Mortgage Insurance.
Such loss reserve shall be non-refundable, notwithstanding the fact that the Loan is ultimately paid in full, and
Lender shall not be required to pay Borrower any interest or earnings on such loss reserve. Lender can no longer
require loss reserve payments if Mortgage Insurance coverage (in the amount and for the period that Lender
requires) provided by an insurer selected ~y Lender again becomes available, is obtained, and Lender requires
separately designated payments toward the premiums for Mortgage l118urance. If Lender required Mortgage
Tuu Deed .CTrut-SID&Ie Famlly-Fannlt MafiFreddle Mae UNIFORM
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...
;~~. '
Insurance as a condition of making the Loan and B0110wer was required to make separately designated paYJi1ents : . ·::-::;~f.~~
toward tm: premiums for Mo~de ge Insurance, Borrower shall pay the premiums required to maintain MOrtgage: . . . .·.·.
lnsurance m effect. or to proVl a non-refundable loss reserve, until Lender's requirement for Mortgage I':iisurance.
~- ;: · .~- _, ~_, .'_!.-_ .· !>.\ ~:-.~.:f
~-:::
ends in accordance with any written agr-eement between Borrower and Lender providing for such termination or ...,_.:.::
until termination is required by Applicable Law. Nothing in this Section 10 affects Borrower's obligation to pay · · )·
interest at the rate provided in the Note. ·
Mortgage Insunmce reimbwses Lender (or any entity that purchases the Note) for certain losses it may
incur ifBorrower does not repay tbe Loan as agreed. Borrower is not a party to the Mortgage Insurance.
Mortgage insurers evaluate their total risk on all such insurance in force from time to time, and may enter
into agreements with other parties that share or modify their risk, or reduce losses. These agreements are on tenns
and conditions that are satisfactory to the mortgage insurer and the other party (or parties) to these agreements.
These.agreements may require the mortgage insurer to make payments using any source of funds that the mortgage
insurer may have available (which may include funds obtained from Mortgage Insurance premiums).
As a result of these agreements, Lender, any purchaser of the Note, another insurer, any reinsurer, any .
other entity, or any affiliate of any of the foregoing, may receive (directly or indlrectly) amounts that derive from
(or might be characterized as) a portion of Borrowers payments for Mortgage Insurance, in exchange for sharing
or modifying the mortgage insurer's risk. or reducing losses. If such agreement provides that an affiliate of Lender
takes a share of the insurers risk in exchange for a share of the premiums paid to the insurer, the arrangement is
often termed ttcaptive reinsurance." Further.
(a) Any such agreements will not affect the amounts that Borrower has agreed to pay for
M&rtgage Insurance, or any other terms of tbe Loan. Such agreements will not increase the amount
Borrower will owe for Mortgage Iuurance, and they will not entitle Borrower to any refund.
(b) Any such agreements will not affect the rights Borrower has- if any~ with respect to the
Mortgage Insurance under the Homeowners Protection Act of 1998 or any other law. These rights may
include the right to receJve certain disclosures, to request and obtain cancellation of the Mortgage Insurance,
to have the Mortga2e Insurance terminated automatically, and/or to receive a refund of any Mortgage
Insurance premJums that were unearned at the time of such cancellation or termination.
11. Assignment of Miscellaneous Proceeds; Forfeiture. All Miscellaneous Proceeds are hereby
assigned to and shall be paid to Lender.
If the Property is damaged, such Miscellaneous Proceeds shall be applied to restoration or repair of the
Property, if the restoration or repair is economically feasible and Lender's security is not lessened. During such
repair and restoration period, Lender shall have the right to hold such Miscellaneous Proceeds until Lender has
had an opportunity to inspect such Property to ensure the work has been completed to Lender's satisfaction,
provided that such inspection shall be undertaken promptly. Lender may pay fur the repairs and restoration in a
aingle disbursement or in a series of progress payments as the work is completed. Unless an agreement is made in
writing or Applicable Law requires interest to be paid on such Miscellaneous Proceeds, Lender shall not be
required to pay Borrower any interest or eanrings on such Miscellaneous Proceeds. If the restoration or repair is
not economically feasible or Lender's security would be lessened, the Miscellaneous Proceeds shall be applied to
the sums secured by this Security Instrument, whether or not then due, with the excess, if any, paid to Borrower.
Such Miscellaneous Proceeds shall be applied in the order provided for in Section 2.
In the event of a total taking, destruction, or loss in varuc of the Property, the Miscellaneous Proceeds
shall be applied to the sums secured by this Security Instrument, whether or not then due, with the excess, if any,
paid to Borrower.
In the event of a partial taking, destruction, or loss in value of the Property in which the fair market value
of the Property immediately before the partial taking, destruction, or loss in value is equal to or greater than the
amount of the sums secured by this Security Instrument immediately before the partial taking, destruction, or loss
in value, unless Borrower and Lender otherwise agree in writing, the sums secured by this Security Instrument ·
shall be reduced by the amount of the Milcellaneous Proceeds multiplied by the following fraction: the total
amount of the swns secured immediately before the partial taking, destruction, or loss in (b) the
Texu Deed ofTrua.Slaale Family-Fannie Mae/Freddie Mac UNIFORM
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fair marlcet value of the Property immediately before the partial taking. destruction, or loss in value. Any balance ·
shall be paid to Borrower.
In the event of a partial taking. destruction, or loss in value of the Property in which the fair market value
of the Property immediately before the partial taking, destruction, or toss in value is less than the amount of the
sums secured immediately before the partial taking, destruction, or loss in value, unless Bonower and Lender
otherwise agree in writing, the Miscellaneous Proceeds shall be applied to the swns secured by this Security
Instrument whether or not the sums arc then due.
If the Property is abandoned by Borrower, or if, after notice by Lender to Borrower that the Opposing
Party (aa defined in the next sentence) offers to make an award to settle a claim for damages, Borrower fails to
respond to Lender within 30 days after the date the notice is given, Lender is authorized to collect and apply the
Miscellaneous Proceeds either to restoration or repair of the Property or to the sums secured by this Security
Instrument, whether or not then due. "Opposing Party" means the third party that owes Borrower Miscellaneous
Proceeds or the party against whom Borrower has a right of action in regard to Miscellaneous Proceeds.
Borrower shall be in default if any action or proceeding, whether civil or criminal, is begun that, in
Lender's judgment, could result in forfeiture of the Property or other material impairment of Lender's interest in
the Property or rights under this Security Instrument. Borrower can cure such a default and, if acceleration has
occurred, reinstate as provided in Section 19, by causing the action or proceeding to be dismissed with a ruling
that, in Lender's judgment. precludes forfeiture of the Property or other material impairment of Lender's interest in
the Property or rights under this Security Instrument The proceeds of any award or claim for damages that are
attributable to the impairinent of Lender's interest in the Property are hereby assigned and shall be paid to Lender,
All Miscellaneous Proceeds that are not applied tD restoration or 1epair of the Property shall be applied in
tbe order provided for in Section 2.
12. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time for
payment or modification of amortization of the sums secured by this Security Instrument granted by Lender to
Borrower or any Successor in Interest of Borrower shall not operate to release the liability of Borrower or any
Successors in Interest of Borrower. Lender shall not be required to commence proceedings against any Successor
in Interest of Borrow~r or to refuse to extend time for payment or otherwise modify amortization of the sums
secured by this Security Instnunent by reason of any demand made by the original Borrower or any Successors in
Interest of Borrower. Any forbearance by Lender in exercising any right or remedy including, without limitation,
Lender's acceptance of payments from third persons, entities or Successors in Interest of Borrower or in amounts
less than the amount then due, shaU not be a waiver of or preclude the exercise of any right or remedy.
13. Joint and Several LlablJity; Co-signers; Successors and Assigns Bound. Borrower covenants
and agrees that Borrower's obligations and liability shall be joint and seYClral. However, any Borrower who co-
signs this Security Instrument but does not exeeute the Note (a "co-signer"): (a) is co-signing this Security
Instrument only to mortgage, grant and convey the co-signer's interest in the Property under the terms of this
Security Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c)
agrees that Lender and any other Borrower can agree to extend, modify, forbear or make any accommodations with
regard to the terms of this Security Instrument or the Note without the co-signet's consent.
Subject to the provisions of Section 18, any Successor in Interest of Borrower who assumes Borrower's
obligations under this Security Instrument in writing, and is approved by Lender, shall obtain all of Borrower's
rights and benefits under this Security Instrument. Borrower shall not be released from Borrower's obligations and
liability under this Security Instrument unless Lender agrees to such release in writing. The covenants and
agreements of this Security Instrument shall bind (except as provided in Section 20) and benefit the successors and
assigns of Lender.
14. Loan Charges. Lender may charge Borrower fees for services performed in connection with
Borrower's default, for the purpose of protecting Lender's interest in the Property and rights under this Security
Instrument, including, but not limited to, attorneys' fees, property inspection and valuation fees. In regard to any
other fees, the absence of express authoritY in this Security Instrument to charge a specific fee to Borrower shall
not be construed as a prohibition on the charging of such fee. Lender may not charge fees that are expre~sly
Tent Deed of"l'nlllt-Blttllt Famfly..llanwle MJiflll'reddle Mae UN1FORM
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prohibited by this Security Instrwnent or by Applicable Law.
If the Loan is subject to a law which sets maximum loan charges, and that law is finally interpreted. so that
the interest or other loan charges collected or to be collected in connection with the Loan exceed the permitted ·
limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the
permitted limit; and (b) any sums already collected from Borrower which exceeded permitted limits will be
refunded to Borrower. Lender may choose to make this refund by reducing the principal owed under the Note or
by making a direct payment to Borrower. If a refund reduces principal, the reduction will be treated as a partial
prepayment without any prepayment charge· (whether or not a prepayment charge is provided for under the Note).
Borrower's acceptance of any such refund made by direct payment to Borrower will constitute a waiver of any right
of action Borrower might have arising out of such overoharge.
15. Notices. All notices given by Borrower or Lender in coJUlection with this Security Instrument
must be in writing. Any notice to Borrower in connection with this Security Instrument shall be deemed to have
been given to Borrower when mailed by first class mail or when actually delivered to Borrowers notice address if
sent by other means. Notice to any one Borrower shall constitute notice to all Borrowers unless Applicable Law
expressly requires otherwise. The notice address shall be the Property Address unless Borrower has designated a
substitute notice address by notice to Lender. Borrower shall promptly notify Lender of Borrower's Change of
address. If Lender specifies a procedure for reporting Borrower's change of address, then Borrower shall only
report a change of address through that specified procedure. There may be only one designated notice address
under this Security Instrument at any one time. Any notice to Lender shall be given by delivering it or by mailing
it by fll'st class mail to Lender's address stated herein unless Lender has designated another address by notice to
Borrower. Any notice in connection with this Security Instrument shall not be deemed to have been given to
Lender until actually received by Lender. If any notice required by this Security Instnunent is also ~quired under
Applicable Law, the Applicable Law requirement will satisfy the corresponding requirement under this Security
Instrument.
16. Governing Law; Severability; Rules of Construction. This Security Instrument shaU be
governed by federal law and the law of the jurisdiction in which the Prope_rty is located. AU rights and obligations
contained in this Security Instrument are subject to any requirements and limitations of Applicable Law.
Applicable Law might explicitly or implicitly allow the parties to agree by contract or it might be silent, but such
silence shall not be construed as a prohibition against agreement by contract In the event that any provision or
clause of this Security Instrument or the Note conflicts with Applicable Law, such conflict shall not affect other
provisions of this Security Instrument or the Note which can be given effect without the conflicting provision.
As used in this Security Instrument: (a) words of the masculine gender shall mean and include
corresponding neuter words or words of the feminine gender; (b) words in the singular shall mean and include the
plural and viu versa; and (c) the word "may" gives· sole discretion without any obligation to take any action.
17. Borrower's Copy. Borrower shall be given one copy of the Note and of this Security lmtrument.
18. . Transfer of the Property or a Beneficial Interest in Borrower. As used in this Section 18,
~Interest in the Property" means any legal or beneficial interest in the Property, including, but not limited to; those
beneficial interests transferred in a bond for deed, contract for deed, installment sales contract or escrow
agreement, the intent ofwbich is the transfer of title by Borrower at a future date to a purchaser.
If all or any part of the Property or any Interest in the Property is sold or transferred (or if Borrower is not
a natural person and a beneficial interest in Borrower is sold or transferred) without Lender's prior written consent,
Lender may require immediate payment in full of all sums secured by this Security Instrument However, this
option shall not be exercised by Lender if such exercise is prohibited by Applicable Law.
~ If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall
provide a period of not less than 30 days from the date the notice is given in accordance with Section 15 within
which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to
the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without
further notice or demand on Borrower. - '
19. Borrower's Right to Reinstate After Acceleration.
Texas Deed ofTruat...Slo11e Family-.Fannle Mat/Freddie Mat: UNIFORM
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··. '.:·::. ~~
· .·
·.
Borrower shall have the right to have enforcement of this Security Instrument discontinued at any time prior to the ·
earliest of: (a) five days before sale of the Property pursuant to any power of sale contained in this Security . _
lnslrument; (b) such other period as Applicable Law might specifY for the tennination of Borrower's right to' ·
reinstate; or (c) entry of a judgment enforcing this Security Instrument. Those conditions are that Borrower: (a)
pays Lender all sums which then would be due under this Security Instrument and the Note as if no accoleration
had occurred; (b) cures any default of any other covenants or agreements; (c) pays all expenses incurred in
enforcing this Security Instrument, including, but not limited to, reasonable attorneys' fees, property inspection and
valuation fees, and other fees incurred for the purpose of protecting Lenders interest in the Property and rights
under this Security Instrument; and (d) takes such action as Lender may reasonably require to assure that Lender's
interest in the Property and rights under this Security Instrument, and Borrower's obligation to pay the sums
secured by this Security Instrument, shall continue unchanged. Lender may require that Borrower pay such
reinstatement sums and expenses in one or more of the following forms, as selected by Lender: (a) cash; (b) money
order; (c) certified check, bank check, treasurer's cbeck or cashier's check, provided any such check is drawn upon
an institution whose deposits are insured by a federal agency, instnunentality or entity; or (d) Electronic Funds
Transfer. Upon reinstatement by Borrower, this Security Instrument and obligations secured hereby shall remain
fully effuctive as if no acceleration had occurred. However, this right to reinstate shall not apply in the case of
acceleration uDder Section 18.
20. Sale or Note; Change of Loan Servicer; Notice of Grievance. The Note or a partial interest in
the Note (together with Ibis Security Instrument) can be sold one or more times without prior notice to Borrower. A
sale might result in a change in the entity (known as the "Loan Servicer") that collects Periodic Payments due
under the Note and this Security Instrument and performs other mortgage loan servicing obligations under the
Note, this Security Instrument, and Applicable Law. There also might be one or more changes of the Loan
Servicer wuelated to a sale of the Note. If there is a change of the Loan Servicer, Borrower will be given written
notice of the change which will state the name and address of the new Loan Servicer, the address to which
payments should be made and any other information RESPA requires in connection with a notice of transfer of
servicing. If the Note is sold and thereafter the Loan is serviced by a Loan Servicer other than the purchaser of the
Note, the mortgage loan servicing obligations to Borrower will remain with the Loan Servicer or be transferred to a
successor Loan Servicer and are not assumed by the Note purchaser unless otherwise provided by the Note
~er. .
Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an
individual litigant or the member of a class) that arises from the other party's actions pursuant to this Security
Instrument or that alleges that the other party has breached any provision o~ or any duty owed by reason of, this
Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in
compliance with the requirements of Section 15) of such aJleged breach and afforded the other party hereto a
reasonable period after the giving of such notice to take corrective action. If Applicable Law provides a time
period which must elapse before certain action can be taken, that time period will be deemed to be reasonable for
purposes of this paragraph. The notice of acceleration and opportunity to cure given to Borrower pursuant to
Section 22 and the notice of acceleration given to Borrower purnuant to Section 18 shall be deemed to satisfy the
notice and opportunity to take corrective action provisions of this Section 20.
21. Hazardous Substances. As used in this Section 21: (a) "Hazardous Substances" are those
substances defined as toxic or hazardous substances, pollutants, or was«:s by Environmental Law and the following
substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides,
.. ·...
·... : ·. votatile solvents, materials containing asbestos or· formaldehyde, and radioactive materials; (b) "Environmental
... Law" means federal laws and laws of the jurisdiction where tbe Property is located that rela~ to health, safety or
·~ . ·. environmenau protection; (c) "Environmental Cleanup" includes any response action, remedial action, or removal
action, as defined in Environmental Law; and (d) an "Environmental Condition" means a condition that can cause,
contnbute to, or otherwise trigger an Environntental Cleanup.
Borrower shall not cause or permit the presence, use, disposaJ, storage, or release of any Hazardous
Substances, or threaten to release any Hazardous Substances, on or .in the Property. Borrower shall not do, nor
TguDeed otTnlt..Single Fam111'-F11Anle Mac/Freddie Mac UNIFORM
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allow anyone else to do, anything affecting the Property (a) that is in violation of any Environmental' Law;
(b) which creates an Environmental Condition, or (c) which, due to the presence, use, or release of a Hazardous
Substance, creates a condition that adversely affects the value of the Property. The preceding two sentences shall:
not apply to the presence, use, or storage on the Property of small quantities of Hazardous Substances that are
generally recognized to be appropriate to normal residential uses and to maintenance of the Property (including,
but not limited to, hazardous substances in consumer products).
BOlTower shall promptly give Lender written notice of (a} any investigation, claim, demand, lawsuit or
other action by any governmental or regulatory agency or private party involving the Property and any Hazardous
Substance or Environmental Law of which Borrower has actual knowledge, (b) any Environmental Condition,
including but not limited to, any spilling, leaking, discharge, . release or threat of release of any Hazanlous
Substance, and (c) any condition caused by the presence, use or release of a Hazardous Substance which adversely
affects the value of the Property. If Borrower loams, or is notified by any govenunental or regulatory authority, or
any private party, that any removal or other remediation of any Hazardous Substance affecting the Property is
necessary, Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law.
Nothing herein shall create any obligation on Lender for an Environmental Cleanup.
NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows:
22. Acceleration; Remedies. Lender shaD give notice to Borrower prior to acceleration
following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to
acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the
default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice
is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before
the date specified in the notice wUI result in aceeleration of the sums secured by this Security Instrument and
sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration
and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower
to acceleration and sale. If the default Is not cured on or before the date specified in the notice, Lender at Its
option may require Immediate payment in full of all sums secured by this Security Instrument without
further demand and may invoke the power of sale and any other remedies permitted by Applicable Law.
'Lender shaU be entitled to coiled aU expenses incurred in pursuing the remedies provided in this Section 22,
including, but not limited to, reasonable attorneys' fees and costs of title evidence. For the purposes of this
Section :ZZ, the term "Lender" includes any holder of the Note who is entitled to receive payments under the
Note.
If Lender invokes the power of sale, Lender or Trustee shall give notice of the time, place and terms
of sale by posting and filing the notice at least 21 days prior to sale as provided by Applicable Law. Lender
shall mail a copy of the notice to Borrower in the manner prescribed by Appllcable Law. Sale shall be made
at public venue. The sale must begin at the time stated in the notice of sale or not later than three hours
after that time and between the hours of 10 a.m. and 4 p.m. on the first Tuesday of tbe mouth. Borrower
authorizes Trustee to sell the Property to the highest bidder for cash In one or more pareels and in any order
Trustee determines. Lender or Its designee may purchase the Property at any sale.
T1'11Btee shall deliver to the purchaser Trustee's deed conveying Indefeasible title to the Property
with covenants of genenl warranty from Borrower. Borrower covenants and agrees to defend generalty the
purchaser's title to the Property against all claims and demands. The recitals in the Trustee's deed shall be
prima facie evidence of the truth of the statements made therein. Trustee shall apply the proceeds of the sale
In the following order. (a) to all expenses of the sale, Including, but not limited to, reasonable Trustee's and
attorneys' fees; (b) to aU sums secured by this Security Instrument; and (c) any excess to the person or
persons legally entitled to it.
If the Property is sold pursuant to this Section 22, Borrower or any person holding possession of the
Property through Borrower shall immedfateJy surrender possession of the Property to the purchaser at that
sale. If possession is not surrendered, Borrower or such person shall be a tenant at sufferance and may be
TeuaiHcd oCTrust..Siagle Famlly-Faanle Mae/Freddie Mac UNIFORM
INSTRUMENT
TabB
RECORD 46
·--
'
removed by writ of possession or other court proceeding.
13. Release. Upon payment of all sums secured by this Security Instrument, Lender shall provide a
release of this Security Instrument to Borrower or Borrower's designated agent in accordance with Applicable Law.
Borrower shalJ pay any recordation costs. Lender may charge Borrower a fee for releasing this Security
Instrument, but only if the fee is paid to a third party for services rendered and the charging of the fee is petmittcd
under Applicable Law.
24. Substitute Trustee; Trustee Liability. All rights, remedies and duties of Trustee under this
Security Instrument may be exercised or performed by one or more trustees acting alone or together. Lender, at its
option and with or without cause, may from time to time, by power of attomey or otherwise, remove or substitute
any trustee, add one or more trustees, or appoint a successor trustee to any Trustee without the necessity of any
formality other than a designation by Lender in writing. Without any further act or conveyance of the Property the
substitute, additional or successor tJustee shall become vested with the title, rights, remedies, powers and duties
conferred upon Trustee herein and by Applicable Law.
Trustee shall not be liable if acting upon any notice, request, consent, demand, statement or other
document believed by Trustee to be correct. Trustee shall not be liable for any act or omission unless such act or
omission is willful.
25. Subrogation. Any of the proceeds of the Note used to take up outstanding liens against all or
any part of the Property have been advanced by Lender at Borrower's request and upon Borrower's representation
· that such amounts are due and are secured by valid liens against the Property. Lender shall be subrogated to any
and all rights, superior titles, liens and equities owned or claimed by any owner or holder of any outstanding liens
and debts, regardless of whether said liens or debts are acquired by Lender by assignment or are released by the
holder thereof upon payment. ·
26. Partial Invalidity. In the event any portion of the sums intended to be secured by this Security
Instrument cannot be lawfully secured hereby, payments in reduction of such sums shall be applied first to those
portions not secured hereby.
27. Purchase Money; Owelty of Partition; Renewal and Extension of Liens Against Property;
Acknowledgment of Cash Advanced Against Non-Homestead Property. Check box as appUcable:
IKI Purchase Money.
The funds advanced to Borrower under the Note were used to pay all or part of the purchase price of the
Property. The Note also is primarily secured by the vendor's lien retained in the deed of even date with this
Security Instrument conveying the Property to Borrower, which vendors lien bas been assigned to Lender, this
Security Instrument being additional security for such vendor's Uen.
0 Owelty of Partition.
The Note represents funds advanced by Lender at the special instance and request of Borrower for the
pUipOSe of acquiring the entire fee simple title to the Property aDd the existence of an owelty of partition imposed
against the entirety of the Property by a court order or by a written agreement of the parties to the partition to
secure the payment of the Note is expressly acknowledged, confessed and granted.
0 Renewal and Extension ot Liens Against Property.
The Note is in renewal and extension, but not in extinguishment, of the indebtedness described on the
attached Renewal and Exte~on Exhibit which is incorporated by reference, Lender is expres&ly subrogated to all
rights, liens and remedies securing the original holder of a note evidencing Borrower's indebtedness and the
original Hens securing the indebtedness are renewed and extended to the date of maturity of the Note in renewal
and extension of the indebtedness.
0 Acknowledgment of Cash Advanced Against Non-Homestead Property.
The Note represents funds advanced to Borrower on this day at Borrower's request and Borrower
acknowledges receipt of such funds. Borro'ler states that Borrower does not now and does not intend ever to reside
on, use in any manner, or claim the Property secured by this Security Instrument as a business or residential
homestead. Borrower disclaims all homestead rights, interests and exemptions related to the Property. ·
TellU Deed ofTrust.Singlc FamUy-Fanaie Mae/F~dle Mae UNIFORM
INSTRUMENT
lJ
TabB
RECORD 47
. .
28. Loan Not a Home Equity Loan. The Loan evidenced by the Note is not an enemion of .
credit" as defmed by Sedion 50(a)(6) or Section 50(a)(7), Artide XVI, of the Texas Constitution. If the
Property Is used as Borrower's resideace, then BorroWer agreeS that Borrower wiD receive no cash from the -... -
Loan evidenced by the Note and that any advances not necessary to purchase the Property, extinguish an
owelty lien, complete construction, or renew and extend a prior Hell against the Property, will be used to
reduce the balance evidenced by the Note or sueb Loan wiU be modified to evidence the correct Loan
balance, at Lender's option. Borrower agrees to execute any documentation necessary to comply wftb this
Seetlon 28.
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Security
Instrument and in any Rider executed by Bonowcr and recorded with it.
WITNESS THE HAND(S) AND SEAL(S) OF Tiffi UNDERSIGNED.
~
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u...o<.v. urtffl-...k
./{£_ ·- ,.
••
David C. Petruska Sandra L. Petruska
(Sign Orfglnals Only}
~~FO~EXAS Van {MdJ f;v
The foregoing instrument was acknowledged before me this ~day AJ/i J I , 2J._ by David
~· and~ I.. Petruska ~
of
u
T - Deed ef'Tnllt.Sia&le r-11)'-JI'uaale M•~Wredcl.. MIIC UNIPORM
INSTltUMINT
14
TabB
RECORD 48
Document No. 2008-004602
GENERAL WARRANTY DEED WITH VENDOR'S LIEN
Partil!s: GUTZKE
···---···-· ·-.- ..HELMUTH
-. . ... ·-. ··--···K.........
~·
ET_._UX. --- .......
to
FILED .-\."'\)) RECORDED
RE:\L RECORDS
On: 05/2012008 at 03:01 PM
I
Docum.:nt ~ umh~r: 2008..004602
Rt..!cl!ipt :\o.:20086954
.-\mount: $ 24.00
By: esmith
Charlotte: Bl~.!dsol!. County Clerk
\'an Znndl County. Tl!xas
4 Pages
...,.,*DO ~OT R.t:\·10\-'~: TillS PAGF- IT IS A PART OF THIS INSTRlli\U:NT~**
$T,\ TE OF TEXAS
COt':'~TY UF \'.-\:"i lA'\!DT
I hcr~br cc:rtit)' thal this mstrumc:nl was f•l~c.ll'O the: dat..: and time: ~tamped hereon by
m..: and was uuly rec~1rdc:d under the: f:lt.>cument i'ium~r :itampt..od h.:reon of the Oflicial Public
Records of Van landt County
Rl!t..'t>rd and Rl!turn To:
DAVID C. PETRUSKA
I 1264 RUSSWOOD CIRCLE
DALLAS, TX 75229 1111111111111
TabC
RECORD 49
AFfER RECORDING RETURN TO:
David C. Petruska
11264 Russwood Circle
Dallas, TX 75229
-----------[Space Above This Unel'or Recording 0 1 1 . 1 1 1 ] - - - - - - - - - -
NOTICE OF CONFIDENTIAUTY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING
INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN
REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBUC RECORDS:
YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
General Warranty Deed with Vend or's Lien
Date: Executed on the date set forth in the acknowledgement herein, but to be effective the Sixteenth day of
May, 2008.
Gl1Ultor: Helmuth K. Gutzke an~i~e, Zackiann Gutzke
Gl1Ultor's Mailing Address:~ rrN j///3{/'J in .
. ' /2.1-y 7"1 7577 (
Grantee: David C. Petruska and wife, Sandra L. Petruska
Gra~tce's Mailing Address: 11264 Russwood Circle
Dallas, TX 75229
Consideration:
Ten Dollars ($10.00) and other good and valuable consideration paid to Grantor by Grantee and a
note of even date in the principal amount of Two Hundred Seventy Four Thousand Five Hundred
and 00/100 Dollars - ($274,500.00) made by Grantee payable to the order of Compass Bank ,
"Lender" herein, as consideration for the amount paid to Grantor. The note is secured by a
vendor's lien retained In favor of Lender in this .deed and by a deed of trust or even date from
Grantee to Jon Mulkin , Trustee. ·
Property (including any improvements):
All that certain lot, tract or parcel of land si't uated in VanZandt County, State of Tens, on theM.
V. Lout S1irvey, A-468, and being all of the residue of the called 5.753 acre first tract and all of the
called 20.00 acre second tract conveyed to Helmuth K. Gutzke and wife, Zackiann Gntzke, by A. D.
Ward, a single man, by Warranty Deed with Vendor's Lien dated July 30, 1990, and recorded in
Volume 1207 Page 390; of the Van Zandt County Real Records, together with an Easement for
Roadway situated in VanZandt County, State of Tens, on theM. V. Lout Survey, A-468 and being
a part of the called 68.78 acre tract conveyed to Thomas M. Lytle and Ellen Lytle, by Ricky Lee
Hadley, by General Warranty Deed recorded in Volume 1771, Page 609, or the VanZandt County
Real Records and a part of tile called 1.10 acre tract conveyed to Thomas M. Lytle and Ellen Lytle,
by RJcky Lee Hadley, by General Warranty Deed recorded in Volume 1771, Page 629, of the Van
Zandt County Real Records and said lot, tract and parcel of land being more particularly described
General WaJTanty Deed witll Yeador's Lien
RECORD 50
-~----~---~·--
by metes and bounds in Exhibit "Au attaebed hereto and made a part hereof.
The above described property also includes any and all of Grantor's right, title, and/or interest in
any and aU system memberships and/or owoersbip certificates In any non-municipal water and/or
sewer systems now or in the future serving said property.
Reservations from and Exteptions to Conveyance and Warranty:
This conveyance is given and accepted subject to any and aU restrictions, reservations, covenants,
conditions, rights of way, easements, municipal or other governmental zoning laws, regulations and
ordinances, if any, affecting tbe herein described property.
Grantee herein assumes tbe taxes for the current year.
Grantor, for the consideration and subject to the reservations from and exceptions to conveyance and warranty,
grants, sells, and conveys to Grantee the property, together with all and singular the rights and appurteDIUlces
thereto in any wise belonging, to have and hold it to Grantee, Grantee's heirs, executors, administrators,
successors, or assigns forever. Grantor binds Grantor and Grantor's heirs, executors, administrators, and
successors to warrant and forever defend all and singular the property to Grantee and Grantee's heirs, executors,
administrators, successors, and assigns against every person whomsoever lawfully claiming or to claim the same or
any part thereof, except as to the reserv11tions from and exceptions tD conveyance and warranty. The vendor's lien
(to the extent of the consideration paid by Grantee to Grantor) against and superior title to the property are retained
until each note descnbed is fully paid according to its tenns, at which time this deed shall become absolute. The
vendor's lien and superior title retained in this deed are transferred tD Lender, without recourse on Grantor. When
the context requires, singular nouns and pronouns include the pluraL When executed by a corporation the words
"heirs and assigns" shall be construed to mean "Successors and assigns".
=Po~~ tl}.r!J hJ
The for oing
e nth
i.ns~entt
utzke
was aelm:rwled before me this
Zackiann Gu
Iff...!!:_ day of ~j J I /
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RECORD 51
----------------~~--~------------------~------------~~-
Exhibit .A"
All that certain lot, tract or parcel of land situated in VanZandt County, State of
Texas, on the M. V. Lout Survey, A-468, and being all of the residue of the called 5. 753
acre first tract and all ofthe called 20.00 acre second tract conveyed to Helmuth K.
Gutzke and wife; Zackiann Gutzke, by A. D. Ward, a single man, by Warranty Deed
with Vendor's Lien dated July 30, 1990, and recorded in Volume 1207, Page 390, of the
VanZandt County Real Records. Said Jot, tract or parcel of land being more particularly
described by metes and bounds as follows:
BEGINNING at a%" iron rod found for corner at the Southeast comer of the
called 20.00 acre second tract, at the Southwest corner of the Arthur C. Werden tract
recorded in Volume 2028, Page 309. of the Van Zandt County Real Records, and in the
Northeast line of the Thomas M. Lytle 68.78 acre tract recorded in Volume 1771, Page
609, of the Van Zandt County Real Records, from WHENCE a fence comer found
bears North 78 degrees 05 minutes 37 seconds West 2.58 feet;
THENCE NORTH 44 degrees 40 minutes 21 seconds West 648.90 feet to a 5/8"
iron rod set for comer at the South comer of the Thomas M. Lytle 1.622 acre tract
recorded in Volume 2188, Page 463, of the Van Zandt County Real Records;
THENCE NORTH 43 degrees 59 minutes 44 seconds East 105.86 feet to a %"
iron rod found for corner at the East corner of the said 1.622 acre tract;
THENCE NORTH 45 degrees 25 minutes 00 seconds West 668.07 feet to a W'
iron rod found for comer at the North corner of the called 1.622 acre tract, in the original
Northwest line· of the called 5. 753 acre first tract, and in the Southeast line of the
Thomas M. Lytle 1.10 acre tract recorded in Volume 1771, Page 629, of the VanZandt
County Real Records;
THENCE NORTH 44 degrees 05 minutes 12 seconds East 1152.76 feet to a
railroad spike set for corner in County Road No. 23 19, at the North comer of the called
20.00 acre second tract, from WHENCE a 60d nail found at the East corner of the said
Thomas M. Lytle 1.10 acre tract bears North 44 degrees 05 minutes 12 seconds East
2.65 feet and a %" iron rod found in the South right of way of the said county road bears
South 38 degrees 58 minutes 47 seconds West 23.09 feet;
. THENCE SOUTH 81 degrees 39 minutes 33 seconds East along the said county
road and the North line of the called 20.00 acre second tract, 322.19 feet to a railroad
spike set for comer in the South line of the B. W. Ward 106.60 acre first tract recorded
in Volume 1654, Page 588, of the Van Zandt County Real Records, at the Northwest
comer of the said Arthur C. Werden tract and at the Northeast comer of the called .
20.00 acre second tract, from WHENCE a 5/8" iron rod set in the South right of way line
of the said county road bears South 08 degrees 20 minutes 49 seconds West 19.00
feet and a 48" Pecan tree found marked X with two hacks above and below the X bears
North 62 degrees 57 minutes East 60.40 feet~ ·
. THENCE SOUTH 08 dedrees 20 minutes 49 seconds West along the East line
of the called 20.00 acre second tract and the West line of the said Arthur C. Werden.......iil
· ....,._.,.
tract 1806.98 feet to the place of beginning and containing 24.020 acres of land.
... :
Tab C
RECORD 52
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0(4) -m.t· ~ 1ft Pilragralph 12A(t)(b) of t:no C»ntrJac;t; J$·Q1angect ~ $ _ _ _ _ _ _ ___.
Ccs~ ~ Q:iSt of leil1dcr rii~if.:Dm.:l tepains .nc:r trautmcnt, a~ lllemlzed on tt¥t a~ ll&t, wur be pe~
. :. ·.:, : :::· lli~fcilltnifs: f "·:· · '·' ·,: by seDer; f ... · bV Buyer.
CJt~) suye~ bits·pelcl 'i!;;Mior•n additional non-t'l!"'rsdio'ble Option ~c or$ l'ot' tlln
e~n~iGn .' of . t~Ct" unl'e$fricced rlght to t:crmfnate the c:ona:rac;t ol\ or
b$rdiier :< .' · • 2o. ·· Thl~ addfticmcll Opdon Fee Cl wtQ 0 wm not
be ~--1:0 the Qalcc Price. . : .
J!f('7) B\wet" weives the ..m.-,~ right~ "mrtnlnat:e the ~ttl!lc:t C'vr whlc:h the Option Flie .,..... pald.
0(8) Tbe chile far 8uysr tD give written ncf:\ce w Sellar that 8"V8r QJnnot abta•ra fttlandi"'Q appraval
. as . set. fal'1h in the 'Third Pwtv Plnandng Condftton Addendum Is Changed
tcf ·.......,..: ' ... ::.::·.:.·:· ·•· '· . ·. . .2o·. ·~ . . . .
.2((9) ·~~~~~! c~n~~., tettuaJ ctaternents ond bu5lnes'oetaliiZ o~iJ~bre"' tttl!ffri...·l fC
.:~-~~~"~Z~~~~-~-
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. ·.. . ·. .. .. ':.=. ·• of ~· ., , . ........ FiLL IN TilE
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. 53
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. Cilisiri"g·::.-;.:~:.-.;~..... ;..'••• :....... $._.__ _.__.:...._~-
.·~ i.:::·.~~~.:J .:.-.~ .............................. $._______
:. : .•.-~~~:;~-:·;;.;·,:.;;~·.-. ·,;,,,,,,,,,u.~•••••••••••••• $_ _.._____
ott1erwrs~e· requl'red by the contract, Seller, at seller's
'jl: :. ·.... ;.;..,.;.;;;;,;.;;- iirid.;Watments:
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· 0(~)' ~~-~~t~ 1~ ~~-r~~~~-~~ ·9·6fthe contract IS changed to 20._ __
0(4) The amount In Paragraph 12A{l)(b) of the contract Is ch~nged to $ - - - - - - - - - - - '
0(5) The cost of lender required repairs and treatment, as lt~mt:zed on the attached list, will be paid
as follows: $ by Seller; $ by Buyer.
0(6) Buyer hes paid Seller an additional Option Fee of$ for an extension of the
unrestricted right to terminate the contract on or before - - - - - - - - - - - - - : - - - -
20 . . • This addlt)onal Option Fee Cl will CJ will not be credited to the Sales Price. ·
I:J(7) Buyer waives the unrestrlc~d right to terminate the contract for which the Option Fee was paid.
0(8) Tlie· date: tor Buyer to' give written notice to Seller that Buyer cannot obtain Financing Approval
".':
as set roitti'ln the Third Party Financing Cohdltlon Addendum Is changed to _ _ _ _ _ ___,
J{c9~-- ~;-~~. ~~~-~~~~l~ns:' (!nsert only ~ctuat Statements 'end business .details applicable to·tnls s11le.)
If .S~t.t:6~: ·· ~,t du Ytr~ 14~.teel.! ro IAIJflnle' +h'o. aAJ,{,'f,.,., (!Jot!
~ ··: ·>4~:\:};;c{:::/'\'diiNCE North 45 dearees 03 minutes West 603.14 feet to the place of beginning and eontaining 5.753
:: .>·~0~~~H~'\I~}::.~~~t!~f.~~X\\
:5~\:/'~!::::·; ':·~;'?(~,\~:j~*'frilct One In Warranty Deed with Vendor's Lien dated July 30, 1990 from A. D. Ward, a single mao
})-~<:. · i. :: ·.:: tO;Iielli\ti~· K. ~tzke and wife, Zacldann Gutzke, recorded In Volume 1107, Page 393, Real Records of Van Zandt
;;,}:~~'<::~:::. ~;:- .
. : .. ·. IiftSS'AfW QCJPT;
. . BEING a 1.612 acre tract and being all that certain lot, tractor parcel of land situated In the M.V. Lout
Slir\iey;.Amtraet No. 468, VanZandt County, Tuas, and being part of a called 5.753 acre tract and part of a called
lO.OO:·acretraet described as First Tract aad Second Tract, retpectively In a deed from A.D. Ward to Helmuth K.
Gittzk.e and wife, Zacldann Gutzke as reeorded In Volume ll07, Page 390, Van Zandt County Real Records, and
bt~fnr more particularly described as follows:
· BE
,
I
COMMITMENT FOR TITLE INSURANCE
SCHEDULED
G.F. No, or File No. 080258 Effective Date: April 9, l008, 7:00 am
Pursuant to the requirements of Rule P-21, Basic Manual of Rules, Rates and Fonns for the writing of Title Insurance in the State of
Texas, the following disclosures are made:
1. The following individuals are directors ~dlor officers, as indicated. of the Title Insurance Company issuing this Commitment
DIRECTORS OF OLD REPUBUC NATIONAL TITLE INSURANCE COMPANY
HARRINGTON BISCHOF JOHN M. DOXON STEVER. WALKER
JOHNW.POPP ARNOLD L. STEINER A.C.ZUCARO
OFFICERS OF OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY
RANDE E. YEAGER, President & Chief Operating Officer STEPHEN C. Wll.SON, Executive Vice President
GARY 1. HORN, Senior Vice Prcaidont & CFO DANIEL M. WOLD, Vice President, Sectetaiy & Senior
MIKE TARPEY, Vice Preaident and Treasurer Cos.potate Counsel
2. TITLE INSURANCE AGENCY
OFFICERS: DIRBCI'ORS & SHAREHOLDERS:
Ivan Alexander, Jr., Pres. lvan Alexander, Jr.
CoDStance H. Alexander, VP Constance H. :Alexander
Goorgo Ivan Alexander, VP George Ivan Alexander
Philip DeWitt Alexander, Sec. & Tres. Philip DeWitt Alexander
Lisa Alexandria Mitchell
3 You arc entitled to receive advance disclosure of .settlement charges in connection with the proposed transaction to which this
commitmont relates. Upon your request, such discloSW'c will be made to you. Additionally, the natnc of any person, finn or
oo.rporstion receiving any sum from the settlement of this transaction will be disclosed on the closing or settlement statement.
You are further advised that the estimated title premium' is:
Owners Policy 51,9~8.00
Mortgagee Policy $100,00
Total $2,038.00
Of this total amount; lS% will bo paid to tQc: policy issuing Tide Insurance Company. 85% will bo retained by the issuing Title
Insurance Agent; and the remainder of the estimated premiwn will be paid to other parties as foUoW&:
Amount To,Wbom For Secrices
.. 1'he estimated premium is baaed upon lnfonnation furnished to us as of the date of this Commitment for Title
of
l118urance. · Final dotcrrirlnation the amount of the premium will be made at closing in accordance with the Rules and Regulations
adoptod by tho State Board of Insurance.
•
This conuni~ont is invalid unless the insuring provisions and Schedules A, B, and C are attached
Old Republic N*tlonal Title Insurance Company
Tab F
RECORD 65
!
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[-)11)
DUNN AND DUNN, PC ATroRNEYSAND COUNSELORS AT LAW
I,.
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I
171 S. BUFFALO Sf. CANTON, TEXAS 75103 PHONE (903) 567-1111 FAX (903) 567-5101 ~!.
MATTHEWL. DUNN EMILY DUNN
~·
February 28, 2014
Mr. and Mrs. David Petruska
11264 Russwood Circle
Dallas, Texas 75229
Re: Easement situated in VanZandt County, Texas
Mr. and Mrs. Petruska:
This finn has been retained by Mr. and Mrs. Tom Lytle concerning the recent
dispute regarding use of their driveway. While my clients have graciously pennitted you
to utilize their driveway with the understanding that you would be building your own
soon, no easement was ever filed and recorded in the real property records ofVan Zandt
County regarding your use of this property. All parties were aware that no easement
existed at the time of your purchase, as both of you requested that my clients sign an
·easement prior to your closing date. Mr. and Mrs. Lytle did not sign an easement at that
time, nor have they executed anything resembling an easement since.
The deed executed for the purchase of your land and filed on May 20, 2008
contains language reference "an Easement for Roadway"; thus causing a cloud on the
title of my client's land. I am requesting that you execute the enclosed release stating that
there is no easement. Ifi do no receive a properly executed release within 30 days from
the date of this letter, I am prepared to litigate this matter.
Thank you for your time and consideration of this matter. If you have any
questions, please do not hesitate to contact my office at (903) 567-1111.
Sincerely,01··
· ·-~yJ~esy~
EJD/hj
Enclosure
CC: Compass Bank (CMRRR)
401 West Valley Avenue
Homewood. Alabama 35209
Marie Yamane (CMRRR)
Compass Bank
401 West Valley Avenue
Homewood. Alabama 3520Q
TabG
RECORD 66
.. ~~--~--~
~--------~~~~--~~-------------------------------------~~~.~.,~
Petruska & Associates (CMRRR)
5944 Luther Lane, Suite 450
Dallas, Texas 75225-5978
Mrs. Petruska (CMRRR)
Briggs Freeman Sotheby's
5600 West Lovers Lane, Suite 224
Dallas, TX 75209
RECORD 67
PET 1\ liS K .I
&
A sso r I .\ T rs
A
I' II l I I I \ \ I 1 > 1'. .I I
I. I M I I I· I> L I.\ Ill I I I Y
C ll \I J> .\ 1'. Y
March 26, 2014 : . ' SH!I hnber tine
. . .· . Suhe450
·: Dal!ai, T-7s:US
Phonil: 214.353.0141
Cell: 214.762.<%11
Emily Jones Dunn, Esq. E-mai~
Dunn and Dunn, PC ~
... Fa: ll.f.J61.3935
171 S. Buffalo Street
Canton, Texas 75103
CERTIFIED MAIL NO. 7012 2920 0002 2647 4268
RETURN RECEIPT REQUESTED
Dear Ms. Dunn:
Enclosed herewith please find the document you requested which you say will remove
the cloud from the Lytle's title. We are signing this even though we believe and have been
advised by others that we have a valid easement conveyed by the sellers to us. Having said that~
Is
life too short to deal with petty matters.
As you may know we commenced work on a separate entrance to our home before we
received your letter of February 28th. You may check with Commissioner Melton regarding the
date. Said entrance Is now completed.
We ask that you please instruct the Lytle's to refrain from screaming obscenities at us
and threatening our property by yelling that they will be there when we are not.
We hope this puts the matter to rest.
Very truly yours,
Tab H
RECORD 68
·-:.--·
RELEASE OF EASEMENT
On jYl?.rc b db Jh, 2014, we, David C. Petruska and wife, Sandra L. Petruska,
hereby release the easement that is listed in the one certain General Warranty Deed with
Vendor's Lien of record dated May 16, 2008 from Helmuth K. Gutzke and wife, Zackiann
Gutzke to David C. Petruska and wife, Sandra L. Petruska and being recorded in Van Zandt
County under Document Number: 2008-004602.
DAVID C. PETRUSKA .
4.4-£~
SANDRA L. PETRUSKA
This instrument was acknowledged before me i?vrJv.lf/Ji/{~ kr on by DAVID
C. PETRUSKA.
.-. ....
· This instrument was acknowledged before me ~ I( If//~ /1q on by
SANDRA L. PETRUSKA.
~ ~· RAimALL
~
SCOTT WIUBANIS ~
~
Commialioft bpjre 1
4 ~~. October 1, 2016
TabH
RECORD 69
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RECORD 70
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RECORD 71
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RECORD 72
NO. 14-00172
THOMAS LYTLE ANn ELLEN § IN THE DISTRICT COURT
LYTLE, §
§
v. §
§
DAVlD C. PETRUSKA, SANDRA L. § 294th JUDICIAL DISTRICT
PETRUSKA, COMPASS BANK, §
HELMUTH K. OUTZKE, and §
ZACKIANN GUTZKE · § VANZANDT COUNTY TEXAS
AFFIDAVIT OF SANDRA L. PETRUSKA
1. My name is Sandra L. Petruska. I am one of the defendants in this case. My
husband is David C. Petruska, who is another defendant. I am competent to make this affidavit.
My personal knowledge is based on my first-hand experience in buying, with my husband, the
property at 1601 VanZandt "county Road 2319 in May 2008; my experience in driving on the
disputed driveway between January 2008 and February 2014 with no protest from Thomas or
Ellen Lytle; my experiences in living on or visiting ~he property regularly between May 2008
and the present; my personal review ofthe General Warranty Deed with Vendor's Lien we
received from Helmuth and Zackiann Gutzke, the Deed of Trust we signed with Compass Bank,
the release of easement I signed and returned to the Lytles' attorney in March 2014, and the
Lytles' original petition, which is in the Court's file; my personal conversations with the
Gutzkes, the Lytles, representatives of Compass Bank, and Registered Professional Land
Surveyor No. 1935 Gearld A. Carter, as discussed below; and my personal review of other
documents and photographs as discussed below. The facts I discuss are within my personal
knowledge and are true and correct.
A. · Property: 1601 VanZandt County Road 2319
2. My husband, David, and I own the property at 1601 VanZandt County
Road 2319, Canton, Texas. The property lies just south of VanZandt County Road 2319, which
nms roughly east and west. A house sits on the property back from the driveway on the
neighboring property. To the best of my knowledge the house was on the property since some
time in 1997when it was built.
B. Neighboring Property: 1603 VanZandt County Road 2319
3. Thomas and Ellen Lytle claim to own the neighboring property at 1603 Van
Zandt County Road 2319, which alS"
Affidavit or Sandra L. Petruska
TAB2
RECORD 76
one-half of the cost of repairing the culvert and entranceway from the county road to the
driveway or roadway, and Mr. Lytle cashed the check.
'
H. We had a valid easement on May 16,2008.
16. I have worked in real estate in Dallas since 1985. I am currently a licensed real-
estate agent with Briggs Freeman Sotbeby's International Realty in Dallas.
17. Although I am not an attorney, it's my opinion that my husband and I had or
acquired a valid easement, attached to our property, to use and drive vehicles on the driveway or
roadway located on 1603 VanZandt County Road 2319, on May 16, 2008. First, our general
warranty deed (dated May 26, 2008) set out the easement. Second, an independent surveyor
confirmed the easement in April2008. Third, I believed, based on conversations with the
Gutzkes, that the Gutzkoo had used and driven vehicles on the driveway or roadway for years
before May 16, 2008. Fourth, Thomas Lytle confirmed the easement in our phone conversation
in April or May 2008 (before we purchased the property). Fifth, the two properties shared one
mail box or mail-box post at the comer of the driveway and Van Zandt County Road 2319 when
we bought the property. Moreover, my belief was confirmed by my and my husband's
experience in using and driving vehicles on the driveway between May 2008 and February 2014
without complaint from the Lytles or anyone else. Mr. Lytle's later acceptance and cashing of
our check for what he said was one~half of the cost to replace the culvert and repair the affected
part of the driveway also confirmed my belief.
I. We committed no fraud.
18. Our information as of May 16, 2008, including that set out in paragraph 17, shows
that my husband and I did not commit any fraud, including fraud under section 12.002 of the
Civil Practice & Remedies Code. We had a valid easement and documentation to support this
conclusion. My husband and I did not prepare, or participate in the preparation of, the General
Warranty Deed with Vendor's Lien (May 16, 2008), Tab C, from the Gutzk.es to us, and the deed
described the easement. My husband and I did not prepare, or participate in the preparation of
· (beyond signing), the Deed ofTrust (May 16, 2008), Tab B, for Compass Bank, which contained
the same description of the easement. Given the documentation I had, including the
independent survey and the general warranty deed, I did not search the deed records to see what
might or might not be reflected in the Lytles' deed or deeds. Moreover, the Gutzkes said that
they had used the driveway to access the property and house for years. The Gutzkes said, in the
warranty deed, that they had an easement to sell us. Our surveyor independently confirmed the
easement. No one--including persons from our title company, the real-estate agents, Compass
Bank, and our surveyor-ever suggested that the easement was invalid or that the General
Warranty Deed with Vendor's Lien or the Deed of Trust were fraudulent or contained any
materially false information. I never had any intention of causing a fraudulent document to be
filed of public record in conjunction ~th our purchase of 1601 VanZandt County Road nor
were any fraudulent documents filed in conjunction with such purchase. I never us~~ei~dt;t~h~;e~~mm
with an intent to cause anyone, including the Lytle's financial injury or emotional d
Affidavit of Sandra L. Petrus Ita
TAB2
RECORD 77
J. Mo1·covea·, W() relc~lscd the ensement befoa·c the Lytles filed suit.
l9. On February 28,2014, the Lytles' attomey, Emily Jones Dunn, wrote my husband
and me a letter and asserted that we didn't have a t·eoorded easement to use 1he ddveway or
roadway on the Lytlos' prope1ty which placed a cloud on their title. She offered, ••1 am
requesting that you execute the enclosed release stating that there is no easement. Tf I do not
receive a properly executed release within 30 days from the date of this letter, I um prepared to
litigate." A true an~ correct copy of this lett~r is at Tab G.
20. I believed that the attorney was incorrect for severul reasons. First, our general
wammty deed (dated May 16, 2008) reflected the easement. Second, an independent surveyor
confirmed th.e easement in Aptil 2008. Thil'd, I believed thnt the residents of 160.1 VanZandt
County Road 2319 hnd used and cll'iven vehiCles on the driveway or roadway fot' many yenrs and
my husband und I had used the driveway between May 2008 and February 2014 without
complaint. Nonetheless, in 1111 efil.)rt to avoid litigation and further problems, my husband .: .·~-~!: :-=·=-·_"!.,_t.~:L: ;·"=: :X: . .~"I!!:S?~·-=·=--~_-__, on this day personally appeared David C.
Petruska, who established his identify with -his Texas driver's license, to be the person whose
name is subscribed as a witness to the foregoing instrument. David C. Petruska swore t-,and will meet the accuracy
requirements as set out in RULE 663.15C as defined therein. -;;.;~)F'.·"_~:~;::· . ·
....-tC:. '·
_'"I,.--:. ~ • • J
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WITNESS my hand and s~l at Athens, Texas, this 2
..y-.·~rl~'i-1'1
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.
~~~--
•
Tab A
RECORD 81
CIJV. CONC. PORCH
c~c. DR.
24.020 ACRES
ACTUAL BEARING AND DISTANCE
CALLS
NUMBER DIRECTION DISTANCE CDV. CONC. 'w'ALK
CDNC. PORCH
1 N 44.40'21' 'W 648.90' BRG. N4s•03''W BRICK PATID ..___..,........__.
2 N 43.59'44' E 105.86' . N46.49'34'E 105.78' HOT TUB
N 45.25'00' 'W 668.07' N42•39'1 JI'W 668.07' INSET SCALE 1' = 40'
3
4 N 44.05'1~ E 1152.76' BRG. N44.34'E
5 S 81•39'33' E 322.19' S81•16'E 319.61' Sco.l~1 1' = 200'
6 s o8·2o'49' "' 1806.98' so9• 44''W 1804.58'.
0.448 ACRE EASEMENT
ACTUAL BEARING AND DISTANCE
NUMBER DIRECTION DISTANCE CALLS
7 S 84.55'25' E 21.41' S82.08'20'E 21.37'
8 S 85.03'04' E 14.94' SB2•08'20'E 14.92'
9 s 44 ·os'l2' 'W 674.24' BRG. S44.34'W'
10 N 45.54'48' VI 30.71'
11 N 44.18'18' E 651.34' BRG. N4]+05'23'£
RECORD 82
CALL 20.00 AC
2ND TR. 12071390
v.z.c.R.R.
M.V. LOUT SUR. A-468
PLAT OF SURVEY
LEGAL DESCRIPTION OF LAND: All that cerlllio lot. tract or pan:el of land sltaared io Vaa
ZaiiCit Coaly, State ofTeua, oa ~ M. V. Lont Sarvey,A-461, and bel~ all oftbe residue of the
called 5.753 IIC're fll'lt tnet and an of the called 20.00 .acre secoud tnoct conveyed to Helm•lh K. . ·.:
Glltzke aod wife, Z..ckiau Gatzke, by A. D. W:ml, a siDClt IIWI, by Wamm11 Deed wllb Vendor'I
Uen dated July 30, 1!190, and nconMd ill Volume 1207, Pege 390, of tbe Vu .Z...dt Coaaty Rnl
Records n11cl all that certailllot, tract or pan:elor m
laud sitaated Vu Zamdt C.uty, State or
Texas, on theM. V. Lo111 Sarvey, A-468,ud bei~~ga part oftlleaolled 68.78 acre tract coaveyed to
.._, Thomas M. Lytle ud EDen Lytle, by Ricky Lee lb4Mr, by Geaeral W&n'IUI11 Deed nca.rded ia
g. Vol•me 1771, Paae 619, of tltt Vaa Zalldt CDIIaty Real Records, ud a part of tile called 1.19 acre
tract ceawyed to Tbomu M. Lytle and :EUe:a Lytle, by Rlcky Ue lbdley, by Geaeral WU'rlully
> Deed recorded in Volume 1771, Pac:elil9, of Che v .... Z..Ddt Conal)' Real Records. S:lid lot, tract or
p:arc:el ofbmd beiag mon: psrticalarly deseribed by metes and boaads attached hereto:
PROPERTY ADDRESS
1601 IIZCR 2319
CANTON, TEXAS 75103
1, Gearld A. Car~er. Registered Professional Land S.rnyor No. 1935, do hereby certify to
Saadra L. Petruska, buyer, Loataso~~n:e Real .Estate Loans, kuder aDd Elliott ad Waklroll Title
Compo~lr:f, tllat the plat tllowa bereo11 ac:curately represoals tile raahs of u oa lhe creaad sarvey
mllde uDder my direc:ti011 aad saperwisioa oa Aprilll, 2008, aad aD JDDDDments were frtllps Ia areas or boondary Uaa cenOictt, a:eept u sllowa
henea, tile size, loealio11 ud type efimpro"""'eDtt an as '"""" hereoa -d all are located within
the be>Qndaries Dftlae property, except u tbown bereoa, ud this sarYI:)' is made in acconluee
.,.itb THE STA.NDARDS FOR. LAND SURVEYS oftM TEXAS BOAIID OF PROFESSIONAL
LAND SURVEVlNG as rerised iD Noftlllber 2067, and will mee1 the ....,.,...c:y reqa....,.eau as set
o"t ia R .lSC, as ddiooed tlaeniD.
.....
. ·....
SURVEY FOR: SANDRA L. PETRUS.KA M. V. LOUf SURVEY, A-468
GF#080258 VANZANDT COUNTY, TEXAS
GEARLD A. CARTER AND ASSOCIATES, LAND SURVEYORS
P.O. BOX 1445,
ATHENS, TEXAS 75751
903-675-7346
RECORD 83
··. ·::...
After recording please mail to:
Compass Bank
401 West Valley Avenue
Homewood, AL 35209
Marte Yamane
- - - - - - - - - - - - [ S p a c e Above This Line For Recording Data] _ _ _ _ _ _ _ _ __
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING
INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN
REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS:
YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
DEED OF TRUST
Loan # "private*
DEFINITIONS
Words used in multiple sections of this document are defined below and other words are defined in Sections 3, 11,
13, 18,20 and 21. Certain rules regarding the usage of words used in this document are also provided in Section
16.
(A) "Security Instrument" means this document, which is dated May 16, 2008, together with all Riders to
this document.
(B) ''Borrower" is David C. Petruska and wtfe, Sandra L. Petruska. Borrower is the grantor ~nder this
Security Instrument.
(C) "Lender" is Compass Bank . Lender is a state bank organized and existing under the laws of
Alabama. Lender's address is PO Box 13345 Blrmlngham,· AL 35202. Lender is the beneficiary under this
Security Instnunent.
(D) "Trustee" is Jon Mulkln . Trustee's address is 401 West Valley Avenue, Homewood, AL 35209.
(E) "Note" means the promissory note signed by Borrower and dated May 16, 2008. The Note states that
Borrower owes Lender Two Hundred Seventy Four Thousand Ftve Hundred and 00/100 Dollars (U.S.
$274,500.00) plus interest. Borrower bas promised to pay this debt in regular Periodic Payments and to pay the
debt in full not later than June 1, 2038.
(F) "Property' means the property that is described below under the beading "Transfer of Rights in the
Property."
(G) "Loan" means the debt evidenced by the Note, plus interest, any prepayment charges and hde charges due
,.
under the Note, and all sums due under this Security Instrument, plus interest.
(H) "Riders.. means all Riders to thls Security Instrument that are executed by Borrower. The following
Texas Deed ofTrult-Sioale Jl'amlly-Janole Mat/F'reddle Mac UNIFORM
INSTRUMENT
TabB
RECORD 84
l
!
i·
I
!
Riders are to be executed by Borrower [check box as applicable]: .... ,
·...,..
·~
1iJ Adjustable Rate Rider 0 Condominium Rider liJ Second Home Rider
0 Balloon Rider 0 Planned Unit Development Rider 0 Biweekly Payment Rider
0 1-4 Family Rider 0 Rate Improvement Rider 0 Graduated Payment Rider
0 VA Loan Rider 0 Manufactured Homo Rider liJ Other(s): ARM, luterest Only
(I) "Applicable Law'' means all controlling applicable · federal, state and local statutes, regulations,
ordinances and administrative rules and orders (that have the effect of law) as well as all applicable final, non-
appealable judicial opinions.
(J) "Community Association Dues, Fees, and Assessments" means all dues, fees, assessments and other
charges that are imposed on Borrower or the Property by a condominium association, homeowners association or
similar organization. '
(K) "Electronic Funds Transfer" means any transfer of funds, other than a transaction originated by check,
draft, or similar paper instrument, which is initiated through an electronic tenninal, telephonic inslnlment,
computer, or magnetic tape so as to order, itisttuct, or authorize a financial institution to debit or credit an account.
Such term includes, but is not limited to, point-of-sale transfers, automated teller machine transactions, transfers
initiated by telephone, wire transfers, and automated clearinghouse transfers.
(L) "Escrow Items" means those items that are described in Section 3.
(M) "Miscellaneous Proceeds" means any compensation, settlement, award of damages, or proceeds paid by
any third party (other than insurance proceeds paid under the coverages described in Section 5) for: (i) damage to,
or destruction of, the Property; (ii) condemnation or other taking of all or any part of the Property; (iii) conveyance
in lieu· of condemnation; or (iv) misrepresentations of, or omissions as to, the value and/or condition of the
Property.
(N) "Mortgage Insurance" means insurance protecting Londcr against the nonpayment of, or default on, the
Loan.
(0) "Periodic Payment" means the regularly scheduled amount due for (i) principal and interest under the
Note, plus (ii) any amounts under Section 3 of this Security Instrument.
(P) "RESPA" means the Real Estate Settlement Procedures Act (12 U.S.C. •2601 et seq.) and its
implementing regulation, Regulation X (24 C.F .R. Part 3500), as they might be amended from time to time, or any
additional or successor legislation or regulation that governs the same subject matter. As used in this Security
InstrUment, "RESPA" refers to all requirements and restrictions that are imposed in regard to a "federally related
mortgage loan" even if the Loan does not qualify as a "federally related mortgage loan" under RESPA.
I
(Q) "Suet:essor In Interest of Borrower" means any party that has taken title to the Property, whether or not
that party has assumed Borrower's obligations under the Note and/or this Security Instrument.
TRANSFER OF RIGHTS IN THE PROPERTY
This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and
modifications of the Note; and (ii) the performance of Borrower's covenants and agreements under
Texu Deed orTruJt..Single FamUy-Fannle Mae/Freddie Mac: UNIFORM
INSTRUMENT
2
TabB
RECORD 85
·.. '!.':: ..
. ·····.
Instrument and the Note. For this purpose, Borrower irrevocably grants and conveys to Trustee, in trust, with
power of sale, the following descn'bed property located in the County [Type of Recordins Jurisdiction) of Van Zandt
(Namo of Recording Jurisdiction):
All that certain lot, tract or parcel of land situated in Van Zandt County, State of Texas, on the M. V. Lout
Survey, A-468, and being all of the residue of the called 5.753 acre first trad and all of the called 20.00 acre
second tract conveyed to Helmuth K. Gutzke and wife, Zackiann Gutzke, by A. D. Ward, a single man, by
Warranty Deed with Vendor's Lien dated July 30, 1990, and recorded in Volume 1207 Page 390, of the Van
Zandt County Real Records, together with an Easement for Roadway situated In VanZandt County, State of
Texas, on theM. V. Lout Survey, A-468 and being a part of tbe called 68.78 acre tract conveyed to Thomai
M. Lytle and Ellen Lytle, by Ricky Lee Hadley, by General Warranty Deed recorded in Volume 1771, Page
609, of the VanZandt County Real Records and a part of the called 1.10 acre tract conveyed to Thomas M.
Lytle and Ellen Lytle, by Ricky Lee Hadley, by General Warranty Deed recorded in Volume 1771, Page
629, of the Van Zandt County Real Records and said lot, tract and parcel of land being more particularly
described by metes and bounds in Exhibit "A" attached hereto and made a part hereof,
which currently has the address of
1601 VZCounty Road 1319
Canton, Texas 75103
r'Property Address"}
TOGETHER WITH aU the improvements now or hereafter erected on the property, and all easements,
appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be
covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the
''Property." BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and
has the right to grant and convey the Property and that the Property is unencumbered, except for encumbrances of
record. Borrower warrants and will defend generally the title to the Property against all claims and demands,
subject to any encumbrances of record.
THIS SECURI1Y INSTRUMENT combines unifonn covenants for national use and non-unifonn
covenants with limited variations by jurisdiction to constitute a unifonn security instrument covering real property.
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
1.
•
Payment of Principal, Interest, Escrow Items, Prepayment Charges, and Late Charges.
Borrower shall pay when due the principal of, and interest on, the debt evidenced by tho Note and any prepayment
charges and late charges due under the Note. Borrower shall also pay funds for Escrow Items pursuant to Section
3. Payments due under the Note and this Security Instrument shall be made in U.S. currency. However, if any
chcclc or other instrument received by Lender as payment under the Note or this Security Instrument is returned to
Lender unpaid, Lender may require that any or all subsequent payments due under the Note and this Security
Instrument be made .in one or more of the following fonns, as selected by Lender: (a) cash; (b) money order;
(c) certified check, bank check, treasurer's check or cashier's check, provided any such check is drawn upon an
institution whose deposits are insured by a federal agency, instrumentality, or entity; or (d) Electronic Funds
Transfer.
Payments are deemed received by Lender when received at the location designated in the Note or at such
other location as may be designated by Lender in accordance with the notice provisions in Section 15. Lender may
return any payment or partial payment if the payment or partial payments are insufficient to bring the Loan
current. Lender may accept any payment or partial payntent insufficient to bring the Loan current, without waiver
of any rights hereunder or prejudice to it&» rights to refuse such payment or partial payments in the future, but
Lender is not obligated to apply such payments at the time such payments are accepted. If each Periodic "'"''mf'nt
· Texas Deed of'l'ruat..Single Famlly-Fannie Mae/Freddie Mac UNIFORM
• INSTRUMENT
3
TabB
RECORD 86
.·
is applied as of its scheduled due date, then Lender need not pay interest on unapplied funds. Lender may hold . ':·
such unapplied funds until Borrower makes payment to bring the Loan current. If Borrower does not do so within
a reasonable period of time, Lender shall either apply such funds or return them to Borrower. If not applied
earlier, such funds will be applied to the outstanding principal balance under the Note immediately prior to
foreclosure. No offset or claim which Borrower might have now or in the future against Lender shall relieve
Borrower from making payments due under the Note and this Security Instrument or performing the covenants and
agreements aecW'ed by this Security Instrument.
2. Applfc:atlon of Payments or Proceeds. Except as otherwise described in this Section 2, all
payments accepted and applied by Lender shall be applied in the following order of priority: (a) interest due under
the Note; (b) principal due under the Note; (c) amounts due under Section 3. Such payments shall be applied to
each Periodic Payment in the order in which it became due. Any remaining amounts shall be applied ftrst to late
charges, second to any other amounts due under this Security Instrument, and then to reduce the principal balance
of the Note.
If Lender receives a payment from Borrower for a delinquent Periodic Payment which includes a sufficient
amount to pay any late charge due, the payment may be applied to the delinquent payment and the late charge. If
more than one Periodic Payment is outstanding, Lender may apply any payment received from Borrower to the
repayment of the Periodic Payments if, and to tho extent that, each payment can bo paid mfull. To the extent that
any excess exists after the payment is applied to the full payment of one or more Periodic Payments, such excess
may be applied to any late charges due. Voluntary prepayments shall be applied first to any prepayment charges
and then as described in the Note.
Any application of payments, insurance proceeds, or Miscellaneous Proceeds to principal due under the
Note shall not extend or postpone the due date, or change the amount, of the Periodic Payments. ·
3. Funds for Escrow Items. Borrower shall pay to Lender on the day Periodic Payments are·due
under tho Note, until the Note is paid in full, a sum (tho "Funds") to provide for payment of amounts due for: (a)
taxes and assessments and other items which can attain priority over this Security Instrument as a lien or
encumbrance on the Property; (b) leasehold payments or ground rents on the Property, if any; (c) premiums for any
and all insurance required by Lender under Section 5; and (d) Mortgage Insurance premiums, if lmy, or any sums
payable by Borrower to Lender in lieu of the payment of Mortgage Insurance premiums in accordance with the
provisions of Section 10. These items are called "Escrow Items." At origination or at any time during the term of
the Loan, Lender may require that Community Association Dues, Fees, and Assessments, if ail.y, be escrowed by
Borrower, and such dues, fees and assessments shall be an Escrow Item. Borrower shall promptly furnish to
Lender all notices of ammmts to be paid under this Section. Borrower shall pay Lender the Funds for Escrow
Items unless Lender waives Borrower's obligation to pay the Funds for any or all Escrow Items. Lender may waive
Borrower's obligation to pay to Lender Funds for any or all Escrow Items at any time. Any such waiver may only
bo in writing. In the event of such waiver, Borrower shall pay directly, when and where payable, the amounts due
for any Escrow Items for which payment of Funds has been waived by Lender and, if Lender requires, shall furnish
to Lender receipts evidencing such payment within such time period as Lender may require. Borrower's obligation
to make such payments and to provide receipts shall for all purposes be deemed to be a covenant and agreement
contained in this Security Instrumen~ as the phrase "covenant and agreement•• is used in Section 9. If Borrower is
obligated to pay Escrow Items directly, pursuant to a waiver, and Borrower fails to pay the amount due for an
Escrow Item, Lender may exercise its rights under Section 9 and pay such amount and Borrower shall then be
obligated under Section 9 to repay to Lender any such amounl Lender may revoke the waiver as to any or all
Escrow Items at any time by a notice given in accordance with Section 15 and, upon such revocation, Borrower
shall pay to Lender all Funds, and in such amounts, that are then required under this Section 3.
1
Lender may, at any time, collect and hold Funds in an amount (a) sufficient to permit Lender to apply the
Funds at the time specified under RBSPA, and (b) not to exceed the maximum amount a lender can require under
RESPA. Lender shall estimate the amount of Funds due on the basis of current data and reasonable estimates of
expenditmes of future Escrow Items or othert..ise in accordance with Applicable Law.
The Funds shall be held in an institution whose deposits are insured by a fe~eralu~ca~~~
Texa1 Deed o!Trust.Single Famll)'-Fannlc Mat/Freddie Mac: UNIFORM
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Lender shall not charge Borrower for holding and applying tho Funds, annually analyzing tho escrow accoiuit, or
verifYing the Escrow Items, unless Lender pay& Borrower interest on the Funds and Applicable Law pennits ··
. ,
:.
Lender to make such a charge. Unless an agreement is made in writing or Applicable Law requires inter~t to be · ··
paid on the Funds, Lender shall not be required to pay Borrower any interest or earnings on the Funds. Borrower
and Lender can aSt-ee in writing, however, that interest shall be paid on the Funds. Lender shall give to Borrower,
without charge, an annual accounting of the Funds as required by RESPA.
If there is a surplus of Funds held in escrow, as defined under RESPA, Lender shall account to Borrower
for the excess funds in accordance with RESPA. If there is a shortage of Funds held in escrow, as defined under
RBSPA, Lender shall notify Borrower as required by RBSPA, and Borrower shall pay to Lender the amount
necessary to make up the shortage in accordance with RESPA, but in no more than 12 monthly payments. If there
is a deficiency of Funds held in escrow, as defmed under RBSPA, Lender shall notify Borrower as required by
RESPA, and Borrower shall pay to Lender the amount necessary to make up the deficiency in accordance with
RESPA, but in no more than 12 monthly payments.
Upon payment in full of all sums secured by this Security Instrument, Lender shall promptly refund to
Borrower any Funds held by Lender.
4. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines, and impositions
attributable to the Property which can attain priority over this Security Instmmont, leasehold payments or ground
rents on the Property, if any, and Community Association Dues, Fees, and Assessments, if any. To the extent that
these items are Escrow Items, Borrower shaH pay them in the manner provided in Section 3.
Borrower shall promptly discharge any lien which has priority over this Security Instrument unless
Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to
Lender, but only so long as Borrower is performing such agreement; (b) contests the lien in good faith by, or
defends against enforcement of the lien in, legal proceedings which in Lender's opinion opemte to prevent the
enforcement of the lien while those proceedings are pending, but only until such proceedings are concluded; or (c)
secures from the holder of the lien an agrecmcilt satisfactory to Lendor subordinating tho lien to this Security
Instrument. If Lender determines that any part of the Property is subject to a lien which can attain priority over
this Security Instrument, Lender may give Borrower a notice identifying the lien. Within I0 days of the date on
which that notice i& given, Borrower shall satisfy the lien or tllke one or more of the actions set forth above in this
Section 4.
Lender may require Borrower to pay a one-time charge for a real estate tax verification and/or reporting
service used by Lender in connection with this Loan.
5. Property Insurance. Borrower' shall keep the improvements now existing or hereafter erected
on the Property insured against loss by fire, hazards included within the tenn "extended coverage", and any other
hazards including, but not limited to, earthquakes and floods, for which Lender requires insurance. This insurance
shall be maintained in the amounts (including deductible levels) and for the periods that Lender requires. What
Lender requires pursuant to the preceding sentences can change during the tenn of the Loan. The insurance carrier
providing the. insurance shall \le chosen by Borrower subject to Lender's right to disapprove Borrower's choice,
which right shall not be exercised unreasonably. Lender may require Borrower to pay, in connection with this
Loan, either: (a) a ono-time charge for flood zone detcnnination, certification and tracking services; or (b) a one-
time charge for flood zone determination and certification services and subsequent charges each time remapping&
or sbnilar changes occur which reasonably might affect such detennination or certification. Borrower shall also be
reaponsible for the payment of any fees imposed by the Fedeml Emergency Management Agency in connection
with the review of any flood zone determination resulting from an objectiQn by Borrower.
UQQ;Qlll~~ f~il6 fo malnf.!!u oJJu o~ f~o oou011•oou 1''""lt'1 ·(·
1 1 1• ~ ~
IfH6trower ia~s o mamiam alby fue coverages
ol' descn
ed above, Lender may obtam tnsurance
coverage, at Lender's option and Borrower's expense. Lender is under no obligation to purchase any pllrticulsr
type or amount of coverage. Therefore, such coverage shall cover Lender, but might or might not protect
Borrower, Borrower's equity in the !lroperty, or the contents of the Property, against any risk.
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and might provide greater or lesser coverage than was previously in effect. Borrower acknowledges that the cost of
the insurance coverage so obtained might significantly exceed the cost of insurance that Borrower could have .
obtained. Any amounts disbursed by Lender under this Section 5 shall become additional debt of Borrower secured·
by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and
shall be payable, with such interest, upon notice from Lender to Bonower requesting payment.
AI' insurance policies required by Lender and renewals of such policies shall be subject to Lender's right
to disapprove such policies, shall include a standard mortgage clause, and shalt name Lender as mortgagee and/or
as an additional loss payee. Lender shall have the right to hold the policies and renewal certificates. If Lender
requires, Borrower shall promptly give to Lender all receipts of paid premiums and renewal notices. If Borrower
obtains any form of insurance coverage, not otherwise required by Lender, for damage to, or destruction of, the
Property, such policy shall include a standard mortgage clause and shall name Lender as mortgagee and/or as an
additional loss payee. '
In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may
make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing,
any insurance proceeds, whether or not the underlying insurance was required by Lender, shall be applied to
restoration or repair of the Property, if the restoration or repair is economically feasible and Lender's security is not
lessened. During such repair and restoration period, Lender shall have the right to hold such insurance proceeds
until Lender has had an opportunity to inspect such Property to ensure the work has been completed to Lender's
satisfaction, provided that such inspection shall be undertaken promptly. Lender may disburse proceeds for the
repairs and restoration in a single payment or in a series of progress payments as the work is completed. Unless an
agreement is made in writing or Applicable Law requires interest to be paid on such insurance proceeds, Lender
shall not be required to pay Borrower any interest or earnings on such proceeds. Fees for public adjusters, or other
third parties, retained by Borrower shall not be paid out of the insurance proceeds and shall be the sole obligation
of Borrower. If the restoration or repair is not economically feasible or Lender's security would be lessened, the
insurance proceeds shall be applied to the sums secured by this Security Instrument. whether or not then due, with
the excess, if any, paid to Borrower. Such insurance proceeds shall be applied in the order provided for in Section
2.
If Borrower abandons the Property, Lender may file, negotiate and settle any available insurance claim
and related matters. If Borrower does not respond within 30 days to a notice from Lender that the insurance
carrier has offered to settle a claim, then Lender may negotiate and settle the claim. The 30-day period will begin
when the notice is given. In either event, or if Lender acquires the Property under Section 22 or otherwise,
Borrower hereby assigns to Lender (a) Borrower's rights to any insurance proceeds in an amount not to exceed the
amounts unpaid under the Note or this Security Instrument, and (b) any othc:r of Borrower's rights (other than the
right to any refund of unearned premiums paid by Borrower) under all insurance policies covering the Property,
insofar as such rights are applicable to the coverage of the Property. Lender may use the insurance proceeds either
to repair or restore the Property or to pay amounts unpaid under the Note or this Security Instrument, whether or
not then due.
6. Occupancy. Borrower shaU occupy, establish, and use the Property as Borrower's principal
residence within 60 days after the execution of thiS Security Instrument and shall continue to occupy the Property
as Borrower's principal residence for at least one year after the date of occupancy, unless Lender otherwise agrees
in writing, which consent shall not be unreasonably withheld, or unless extenuating circumstances exist which are
beyon~ Borrower's control.
7. Preservation, Maintenance and Protection of the Property; Inspections. Borrower shall not
destroy, damage or impair the Property, allow the Property to deteriorate or conunit waste on the Property.
Whether or not Borrower is residing in the Property, Borrower shall maintain the Property in order to prevent the
Property from deteriorating or decreasing in value due to its condition. Unless it is determined pursuant to Section
5 that repair or restoration is not economically feasible, Borrower shall promptly repair the Property if damaged to
avoid further deterioration or damage. If durance or condemnation proceeds are paid in connection with damage
to, or the taking of, the Property, Borrower shaU be responsible for repairing or restoring the Property if
Tu.u Deed ofTrult.Single Family·F'annle Mu/Freddle Mac UNIFORM
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Lender has released proceeds for such purposes. Lender may disburse proceeds for the repairs and restoration in a
single payment or in a aeries of progress payments as the work is completed. If the insurance or condemnation
proceeds are not sufficient to repair or restore the Property, Borrower is not relieved of Borrower's obligation for
the completion of such repair or restoration.
Lender or its agent may make reasonable entries upon and inspections of the Property. If it has reasonable
cause, Lender may inspect the interior of the improvements on the Property. Lender shall give Borrower notice at
the time of or prior to such an interior inspection specifying such reasonable cause.
8. Borrower's Loan Application. Borrower shall be in default if, during the Loan application
process, Borrower or any persons or entities acting at the direction of Borrower or with Borrower's knowledge or
consent gave materially false, misleading, or inaccurate information or statements to Lender (or failed to provide
Lender with material information) in connection with the Loan. Material representations include, but are not
limited to, representations concerning Borrower's occupancy of the Property as Borrower's principal residence.
9. Protection of Lender's Interest in the Property and Rights Under this Security Instrument.
If (a) Borrower fails to perfonn the covenants and agreements contained in this Security Instrument, (b) there is a
legal proceeding that might significantly affect Lender's interest in the Property and/or rights under this Security
Instrument (such as a proceeding· in bankruptcy, probate, for condemnation or forfeiture, for enforcement of a lien
which may attain priority over this Security Instrument or to enforce laws or regulations), or (c) Borrower has
abandoned the Property, then Lender may do and pay for whatever is reasonable or appropriate to protect Lcndex's
interest in the Property and rights under this Security Instrument, including protecting and/or assessing the value
of the Property, and securing and/or repairing the Property. Lender's actions can include, but are not limited to:
(a) paying any sums secured by a lien which has priority over this Security Instrument; (b) appearing in court; and
(c) paying reasonable attorneys' fees to protect its interest in the Property and/or rights under this Security
Instrument, including its secured position in a bankruptcy proceeding. Securing the Property tncludes, but is not
limited to, entering the Property to make repairs, change locks, replace or board up doors and windows, drain
water from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned on
or off. Although Lender may take action under this Section 9, Lender does not have to do so and is not under any
duty or obligation to do so. It is agreed that Lender incurs no liabiUty for not taking any or all actions authorized
nnder this Section 9.
Any amounts disbursed by Lender under this Section 9 shall become additional debt of Borrower sccrired
by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and
shall be payable, with such interest, upon notice from Lender to Borrower requesting payment.
If this Security Instrument is on a leasehold, Borrower shall comply with all the provisions of the lease. If
Borrower acquires fee title to the Property, the leasehold and the fee title shall not merge unless Lender agrees to
the merger in writing. .
10. Mortgage Insurance. If Lender required Mortgage Insurance as a condition of making the
Loan, Borrower shall pay the premiums required to maintain the Mortgage Insurance in effect. If, for any reason,
the Mortgage Insurance coverage required by Lender ceases to be available from the mortgage insurer that
previously provided such insurance and Borrower was required to make separately designated payments toward the
premiums for Mortgage Insurance, Borrower shaH pay the premiums required to obtain coverage substantially
equivalent to the Mortgage Insurance previously in effect. at a cost substantially equivalent to the cost to Borrower
of the Mortgage Insurance pxovfously in effect, from an alternate mortgage insurer selected by Lender. If
substantially equivalent Mortgage Insurance coverage is not available, Borrower shall continue to pay to Lender
the amount of the separately designated payments that were due when the insurance coverage ceased to be in effect.
Lender will accept, use and retain these payments as a non-refundable loss reserve in lieu of Mortgage Insurance.
Such loss reserve shall be non-refundable, notwithstanding the fact that the Loan is ultimately paid in full, and
Lender shall not bo required to pay Borrower any intereat or earnings on such toss reserve. Lender can no longer
require loss reserve paymenta if Mortgage Insurance coverage (in the amount and for the period that Lender
requires) provided by an insurer selected 'Y Lender again becomes available, is obtained, and Lender requires
separately designated payments toward the premiums for Mortgage Insurance. If Lender required Mortgage
~ •:
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a
Insurance as condition of making the Loan and Borrower was required to make separately designated payrt.ents : ·
toward the premiums for Mortgage Insurance, Borrower shall pay the premiums required to maintain Mortgage:
Insurance in effect, or to provide a non-refundable loss reserve, until Lender's requirement for Mortgage lnsurance. · ·
ends in accordance with any written agreement between Borrower and Lender providing for such termination or
until termination is required by Applicable Law. Nothing in this Section tO affects Borrower's obligation to pay ... .
-~~
interest at the rate provided in the Note. ·
Mortgage Insurance reimburses Lender (or any entity that purchases the Note) for certain losses it may
incur ifBorrower does not repay the Loan as agreed. Borrower is not a party to the Mortgage Insurance.
Mortgage insurers evaluate their total risk on all such insurance in force from time to time, and may enter
into agreements with other parties that share or modify their risk, or reduce losses. These agreements are on terms
and conditions that are satisfactory to the mortgage insurer and the other party (or parties) to these agreements.
These agreements may require the mortgage insurer to make payments using any source of funds that the mortgage
insurer may have available (which may include funds obtained from Mortgage Insurance premiums).
As a result of these agreements, Lender, any purchaser of the Note, another insurer, any reinsurer, any
other entity, or any affiliate of any of the foregoing, may receive (directly or indirectly) amounts that derive from
(or might be characterized as) a portion of Borrowers payments for Mortgage Insurance, in exchange for sharing
or modifying the mortgage insurer's risk. or reducing losses. If such agreement provides that an affiliate of Lender
takes a share of the insurer's risk in exchange for a share of the premiums paid to the insurer, the arrangement is
often termed "captive reinsurance." Further:
(a) Any such agreements will not affect the amounts that Borrower has agreed to pay for
Mortgage Insurance, or any other terms of the Loan. Such agreements will not increase the amount
Borrower will owe for Mortgage Insurance, and they wUI not entitle Borrower to any refund.
(b) Any such agreements will not affect the rights Borrower has • if any - with respect to the
Mortgage Insurance under the Homeowners Protootion Act of 1998 or any other law. These rights may
Include the right to receive certain disclosures, to request and obtain canceiJatlon of the Mortgage Insurance,
to have the Mortgage Insurance terminated automatically, and/or to receive a refund of any Mortgage
Insurance premiums that were unearned at the time of such cancellation or termination.
11. Assignment of Miscellaneous Proceeds; Forfeiture. All Miscellaneous Proceeds are hereby
assigned to and shall be paid to Lender.
If the Property is damaged, such Miscellaneous Proceeds shall be applied to restoration or repair of the
Property, if the restoration or repair is economically feasible and Lender's security is not lessened. During such
repair and restoration period, Lender shall have the right to bold such Miscellaneous Proceeds until Lender has
had an opportunity to inspect such Property to ensure the work has been completed to Lender's satisfaction, ·
provided that such inspection shall be undertaken promptly. Lender may pay for the repairs and restoration in a
single disbursement or in a series of progress payments as the work is completed. Unless an agreement is made in
writing or Applicable Law requires interest to be paid on such Miscellaneous Proceeds, Lender shall not be
required to pay Borrower any interest or earnings on such Miscellaneous Proeoeds. If the restoration or repair is
not economically feasible or Lender's security would be lessened, the Miscellaneous Proceeds shall he applied to
the sums secured by this Security Instrument, whether or not then due, with the excess, if any, paid to Borrower.
Such Miscellaneous Proceeds shall be applied in the order provided for in Section 2.
In the event of a total taking, destruction, or loss in value of the Property, the Miscellaneous Proceeds
shall be applied to the sums secured by this Security Instrument, whether or not then due, with the excess, if any,
paid to Borrower. \ ·
In the event of a partial taking, destruction, or loss in value of the Property in which the fair market value
of the Property immediately before the partial taking, destruction, or loss in value is equal to or greater than the
amount of the sums secured by this Security Instrument inunediately before the partial taking, destruction, or loss
in value, unless Borrower and Lender otherwise agree in writing, the sums secured by this Security Instrument
shall be reduced by the amount of the Milcellaneous Proceeds multiplied by the following fraction: (a) the total
amount of the sums secured immediately before the partial taking, destruction, or loss in value divided by (b) the
Tuu Deed ofTrust..Slngle Famlly-Faonlc Mae/Freddie Mae UNIFORM
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fair market value of the Property immediately before the partial taldng, destruction, or loss in value. Any balance ·
shall be paid to Borrower.
In the event of a partial taking, destruction, or loss in value of the Property in which the fair market value
of the Property immediately before the partial taking, destruction, or loss in value is less than the amount of the
sums secured inuncdiately before the partial taking, destruction, or loss in value, unless Borrower and Lender
otherwise agree in writing, the Miscellaneous Proceeds shall be llpplied to the sums secured by this Security
Instrument whether or not the sums are then due.
If the Property is abandoned by Botrower, or if, after notice by Lender to Borrower that the Opposing
Party (as defined in the next sentence) offers to make an award to settle a claim for damages, Borrower fails to
respond to Lender within 30 days after the date the notice is given, Lender is authorized to collect and apply the
Miscellaneous Proceeds either to restoration or repair of the Property or to the sums secured by this Security
Insttument, whether or not then due. "Opposing Party'' means the third party that owes Borrower Miscellaneous
Proceeds or the party against whom Borrower has ll right of action in regard to Miscellaneous Proceeds.
· Borrower shall be in default if any action or proceeding, whether civil or criminal. is begun that, in
Lender's judgment, could result in forfeiture of the Property or other material irnpainnent of Lenders interest in
the Property or rights under this Security Instrument. Borrower can cure such a default and, if acceleration has
occurred, reinstate as provided in Section l9, ,by causing the action or proceeding to be dismissed with a ruling
that, in Lender's judgment, precludes forfeiture of the Property or other material impairment of Lender's interest in
the Property or rights under this Security Instrument. The proceeds of any award or claim for damages that are
attributable to the impairment of Lender's interest in the Property are hereby assigned and shall be paid to Lender.
All Miscellaneous Proceeds that are not applied to restoration or repair of the Property shall be applied in
the order provided for in Section 2.
12. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time for
payment or modification of amortization of the sums secured by this Security Instrument granted by Lender to
Borrower ot any Successor in Interest of Borrower shall not operate to release the liability of Borrower or any
Successors in Interest of Borrower. Lender shall not be required to commence proceedings against any Successor
in Interest of Borrower or to refuse to extend time for payment or otherwise modify amortization of the sums
secured by this Security Instrument by reason of any demand made by the original Borrower or any Successors in
Interest of Bonower. Any forbearance by Lender in exercising any right or remedy including, without limitation,
Lender's acceptance of payments from third persons, entities or Successors ~n Interest of Borrower or in amounts
less than the amount then due, shall not be a waiver of or preclude the exercise of any right or remedy.
13. Joint and Several Liability; Co-signers; Successors and Assigns Bound. Borrower covenants
and agrees that Borrower's obligations and liability shall be joint and sevC!faL However, any Borrower who co-
signs this Security Instrument but does not execute the Note (a "co-signer''): (a) is co-signing this Security
Instrument only to mortgage, grant and convey the co-signer's interest in the Property under the terms of this
Security Instrwnent; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c)
agrees that Lender and any other Borrower can agree to extend, modify, forbear or make any accommodations with
regard to the terms of this Security Instrument or the Note without the co-signer's consent.
Subject to tho provisions of Section 18, any Successor in Interest of Borrower who assumes Borrower's
obligations under this Security Instrument in writing, and is approved by Lender, shall obtain all of Borrower's
rights and benefits under this Security Instrument Borrower shall not be released from Borrower's obligations and
liability under this Security Instrument unless Lender agrees to such release in · writing. The covenants and
agreements of this Security Instrument shall bind (except as provided in Section 20) and benefit the successors and
assigns ofLender. .
14. Loan Charges. Lender may charge Borrower fees for services performed in connection with
Borrower's default, for the purpose of protecting Lender's interest in the Property and rights under this Security
Instrument, including, but not limited to, attorneys' fees, property inspection and valuation fees. In regard to any
other 'fees, the absence of express authoritf in this Security Instrument to charge a specific fee to Ho:!T.O,:~ICJ;1 ~l!Hll
not be construed as a prohibition on ~e charging of such fee. Lender may not charge fees Jhat ·
Texas Deed of Trust-Bingle Famlly..Fanale MIW'Freddle Mae UNIFORM
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prohibited by this Security Instmment or by Applicable Law.
If the Loan is subject to a law which sets maximum loan charges, and that law is finally interprttedso that
the interest or other loan charges collected or to be collected in comtection with the Loan exceed the pennitted ·
limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce lhe charge to the
permitted limit; and (b) any sums already collected from Borrower which exceeded permitted limits will be
refunded to Borrower. Lender mlly choose to make this refund by reducing the principal owed under the Note or
by making a direct payment to Borrower. If a refund reduces principal, the reduction will be treated as a partial
prepayment without any prepayment charge (whether or not a prepayinent charge is provided for under the Note).
Borrower's acceptance of any such refund made by direct payment to Borrower will constitute a waiver of any right
of action Borrower might have arising out of such overcharge.
IS. Notices. All notices given by Borrower or Lender in connection with this Security Instrument
must be in writing. Any notice to Borrower in comtection with this Security Instrument shall be deemed to have
been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if
sent by other means. Notice to any one Borrower shall constitute notice to all Borrowers unless Applicable Law
expressly requires otherwise. The notice address shall be the Property Address unless Borrower has designated a
substitute notice address by notice to Lender. Borrower shall promptly notify Lender of Borrower's change of
address. If Lender specifies a procedure for reporting Borrowers change of address, then Borrower shall only
report a change of address through that specified procedure. There may be only one designated notice address
under this Security Instrument at any one time. Any notice to Lender shall be given by delivering it or by mailing
it by first class mail to Lender's address stated herein unless Lender has designated another address by notice to
Borrower. Any notice in connection with this Security Instrument shall not be deemed to have been given to
Lender until actually received by Lender. If any notice required by this Security Instrument is also required under
Applicable Law, the Applicable Law requirement wiii satisfy the corresponding requirement under this Security
Instrument
16. Governing Law; Severability; Rules of Construction. This Security Instrument shall be
governed by federal law and the law of the jurisdiction in which the Prop~rty is located. All rights and obligations
contained in this Security Instrument are subject to any requirements and limitations of Applicable Law.
Applicable Law might explicitly or implicitly allow the parties to agree by contract or it might be silent, but such
silence shall not be construed as a prohibition against agreement by contract In the event that any provision or
clause of this Security Instrument or the Note conflicts with Applicable Law, such conflict shall not affect other
provisions of this Security Instrument or the Note which can be given effect without the conflicting provision.
As used in this Security I~trument: (a) words of the masculine gender shall mean and include
corresponding neuter words or words of the feminine gender; (b) words in the singular shall mean and include the
plural and vice versa; and (c) th6 word "may" gives· sole discretion without any obligation to take any action.
17. Borrower's Copy. Borrower shall be given one copy of the Note and ofthia Security Instrument.
18. Transfer of the Property or a Beneficial Interest In Borrower. As used in this Section 18,
"Interest in the Property" means any legal or beneficial interest in the Property, including, but not limited to, those
beneficial interests transferred in a bond for deed, ' contract for deed, installment sales contract or escrow
agreement, the intent of which Is the transfer of title by Borrower at a future date to a purchaser.
If all or llDY part of the Property or any Interest in the Property is sold or transferred (or if Borrower is not
a natural person and a beneficial interest in Borrower is sold or transferred) without Lenders prior written consent,
Lender may require immediate payment in full of all sums secured by this Security Instrument. However, this
option shall not be exercised by Lender if such exercise is prohibited by Applicable Law.
If Lender exercises thia option, Lender shall give Borrower notice of acceleration. The notice shall
provide a period of not less than 30 days from the date the notice is given in accordance with Section 15 within
which Borrower must pay aU sums secured by this Security Instrument. If Borrower fails to pay these sums prior to
the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without
further notice or demand on Borrower. •
19.
Tex.s Deed ofTrult-Siagle Famlly-Fannle Mae/Freddie Mae UNIFORM
INSTRUMENT
10
TabB
RECORD 93
.·. '_:·~·:.~~?
••• ·~ :1·. ~
. .
Bonower shall have the right to have enforcement of this Security Instrument discontinued at any time prior to the-. ·
earliest of: (a) five days before sale of the Property pursuant to any power of sale contained in this Security ·..
Instrument; (b) such other period as Applicable Law might specifY for the termination of Borrower's right to' ·
reinstate; or {c) entry of a judgment enforcing this Security Instrument. Those conditions are that Borrower: (a)
pays Lender all sums which then would be due under this Security Instrument and the Note as if no acceleration
had occurred; (b) cures any default of any other covenants or agreements; (c) pays all expenses incurred fn
enforcing this Security Instrument, including, but not limited to, reasonable attorneys' fees, property inspection and
v.aluation fees, and other fees incurred for the purpose of protecting Lender's interest In the Property and rights
under this Security Instrument; and (d) takes such action as Lender may reasonably require to assure that Lender's
interest in the Property and rights under this Security Instrument, and Borrower's obligation to pay the sums
secured by this Security Instrument, shall continue unchanged. Lender may require that Borrower pay such
reinstatement sums and expenses in one or more of the foUowing forms, as selected by Lender: (a) cash; (b) money
order; (c) certified check, bank checkr treasurer's check or cashier's check, provided any such check is drawn upon
an institution whose deposits are insured by a federal agency, instrumentality or entity; or (d) Electronic Funds
Transfer. Upon reinstatement by Borrower, this Security Instrument and obligations secured hereby shall remain
fully effective as if no acceleration had occurred. However, this right to reinstate shall not apply in the case of
acceleration under Section 18.
20. Sale of Note; Change of Loan Servicer; Notice of Grievance. The Note or a partial interest in
the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower. A
sale might result in a change in the entity (known as the "Loan Scrvicer") that collects Periodic Payments due
under the Note and this Security Instrument and performs other mortgage loan servicing obligations under the
Note, this Security Instrument, and Applicable Law. There also might be one or more changes of the Loan
Servicer unrelated to a sale of the Note. If there is a change of the Loan Servicer, Borrower will be given written
notice of the change which will state the name and address of the new Loan Servicer, the address to which
payments should be made and any other infonnation RESPA requires in connection with a notice of transfer of
servicing. If the Note is sold and thereafter the Loan is serviced by a Loan Servicer other than the purchaser of the
Note, the mortgage loan servicing obligations to Borrower will remain with the Loan Servicer or be transferred to a
successor Loan Servicer and are not assumed by the Note purchaser unless otherwise provided by the Note
purchaser.
Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an
individual litigant or the member of a class) that arises from the other party's actions plll'8Uant to this Security
Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this
Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in
compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a
reasonable period after the giving of such notice to take corre~tive action. If Applicable Law provides a time
period which must elapse before certain action can be taken, that time period will be deemed to be reasonable fbr
purposes of this paragraph. The notice of acceleration and opportunity to cure given to Borrower pursuant to
Section 22 and the notice of acceleration given to Borrower pursuant to Section 18 shall be deemed to satisfy the
notice and opportunity to take corrective action provisions of this Section 20.
21. Hazardous Substances. As used in this Section 21 : (a) "Hazardous Substances" are those
substances defined as toxic or hazardous substances, pollutants, or wastes by Environmental Law and the following
. . '· substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides,
.•.....
. volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials; (b) "Environmental
Lawft means federal laws and laws of the jurisdiction where the Property is located that relate to health, safety or
.\. ·. environmental protection; (c) "Environmental Cleanup'' includes any response action, remedial action, or removal
action, as defined In Environmental Law; and (d) an "Environmental Condition" means a condition that can cause,
contribute to, or otherwise trigger an Environmental Cleanup.
··. Borrower shall not cause or pennil the presence, use, disposal, storage, or re]ease of any Hazardous
Substances, or threaten to release any Hazardous Substances, on or in the Property. Borrower shall not do, nor
Texas Deed orTruat.Single Flunlly·Fannle Mac/Freddie Mac UNIFORM
INSTRUMENT
11
TabB
RECORD 94
allow anyone else to do, anything affecting the Property (a) that is in violation of any Environmental" La:W;
(b) which creates an Environmental Condition, or (c) which, due to the presence, use, or release of a Hazardou~
Substance, cieates a condition that adversely affects the value of the Property. Tho preceding two sentences shall:
not apply to the presence, use, or storage on the Property of small quantities of Hazardous Substances that are
generally recognized to be appropriate to normal residential uses and to maintenance of the Property (including,
but not limited to, hazardous substances in consumer products),
Borrower shall promptly give Lender written notice of (a) any investigation, claim, demand, lawruit or
other action by any governmental or regulatory agency or private party involving the Property and any Hazardous
Substance or Environmental Law of which Borrower has actual knowledge, (b) any Environmental Condition,
including but not limited to, any spilling, leaking, discharge, release or threat of release of any Hazardous
Substance, and (c) any condition caused by the presence, usc or release of a Hazardous Substance which adversely
affects the value of the Property. IfBorrowor learns, or is notified by any govenunental or regulatory authority, or
any private party, that any removal or other remediation of any Hazardous Substance affecting the Property is
necessary, Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law.
Nothing herein shall create any obligation on Lender for an Environmental Cleanup.
NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows:
22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration
following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to
acceleration under Section 18 unle.ss Applicable Law provides otherwise). The notice shall specify: (a) the
default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice
Is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before
the date specified in the notice will result in acceleration of the sums secured by thls Security Instrument and
sale of the Property. The notice shall further inform Borrower of the rlght to reinstate after acceleration
and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower
to acceleration and sale. If the default Is not cured on or before the date specified ln the notice, Lender at Its
option may require Immediate payment In full of ansums secured by this Security Instrument without
further demand and may Invoke the power of sale and any other remedies permitted by Applicable Law.
Lender shall be entitled to collect aU expenses Incurred in pursuing the remedies provided in this Section 22,
including, but not limited to, reasonable attorneys' fees and costs of title evidence. For the purposes of this
Section 22, the term "Lender» includes any holder of the Note who Is entltl~d to ·receive payments under the
Note.
If Lender invokes the power of sale. Lender or Trustee shall give notice ofthe time, place and terms
of sale by posting and filing the notice at least 21 days prior to sale as provided by Appllcuble Law. Lender
shall man a copy of the notice to Borrower in the manner pr.escrlbed by Applicable Law. Sale shall be made
at public venue. The sale must begin at the time stated In the notice of sale or not later than three hours
after that time and between the hours of 10 a.m. and 4 p.m. on the Ont Tuesday of the month. Borrower
authorizes Trustee to sell the Property to the highest bidder for cash In one or more parcels and in any order
TrliStee determines. Lender or its designee may purchase the Property at any sale.
Trustee shall deliver to the purchaser Trustee's deed conveying indefeasible title to the Property
with covenants of general warranty from Borrower. Borrower covenants and agrees to defend generally the
purchaser's title to the Property against all claims and demands. The recitals in the Trustee's deed shall be
prima facie evidence of the truth of the statements made therein. Trustee shall apply the proceeds ortbe sale
in the following order: (a) to all expenses of the sale, including, but not limited to, reasonable Trustee's and
attorneys' fees; (b) to all sums secured by this Security Instrument; and (c) any excess to the person or
penons legally entitled to lt.
If the Property Is sold pursuant to this Section 22, Borrower or any person holding possession of the
Property through Borrower shall fmmedfately surrender possession of the Property to the purchaser at that
sale, If possession Is not surrendered, Borrower or such person shall be a tenant at sufferance and may be
Ten• Deed ofTru1t..Slogle Famlly-F..nlc Mac/Freddie Mac: UNIFORM
INSTRUMENT
TabB
RECORD 95
.....
'·
removed by writ of possession or other court proceeding.
23. Release. Upon payment of all sums secured by this Securjty Instrument, Lender shall provide a
,·;~
release of this Security Instrument to Borrower or Borrower's designated agent in accordance with Applicable Law. :··
· Borrower shall pay any recordation costs, Lender may charge Borrower a fee for releaaing this Security
Instrument, but only if the fee is paid to a third party for services rendered and the charging of the fee is permitted
under Applicable Law.
24. Substitute Trustee; Trustee LlabUlty. All rights, remedies and duties of Trustee under this
Security Instrument may be exercised or performed by one or more trustees acting alone or together. Lender, at its
option and with or without cause, may from time to time. by power of attorney or otherwise, remove or substitute
any trustee, add one or more trustees, or appoint a successor trustee to any Trustee without the necessity of any
formality other than a designation by Lender in writing. Without any further act or conveyance of the Property the
substitute, additional or successor trustee shall become vested with the title, rights, remedies, powers and duties
conferred upon Trustee herein and by Applicable Law.
Trustee shall not be liabJe if acting upon any notice, request, consent, demand. statement or other
document believed by Trustee to be correct. Trustee shall not be liable for any act or omission unless such act or
omission is willful.
25. Subrogation. Any of the proceeds of the Note used to take up outstanding liens against all or
any part of the Property have been advanced by Lender at Borrower's request and upon Borrower's representation
that such amounts are due and are secured by valid liens against the Propc::rty. Lender shall be subrogated to any
and all rights, superior titles, liens and equities owned or claimed by any owner or holder of any outstanding liens
and debts, regardless of whether said liens or debts are acquired by Lender by assignment or are reJeased by the
holder thereof upon payment. .
:Z6. Partial Invalidity. In the event any portion of the sums intended to be secured by this Security
Instrument caiUlot be lawfully secured hereby, payments in reduction of such sums shall be applied first to those
portions not secured hereby.
27. Purchase Money; Owelty of Partidon; Renewal and Extension of Liens Against Property;
Acknowledgment of Cash Advanced Against Non-Homestead Property. Check box as applicable:
lXI . Pu~haseMoney.
The funds advanced to Borrower under the Note were used to pay all or part of the purchase price of the
Property. The Note also is primarily secured by the vendor's lien retained in the deed of even date with this
Security Instrument convoying tho Proporty to Borrower, which vendor's lien has been assigned to Lender, this
Security Instrument being additional security for such vendor's lien.
0 Owelty of Partition.
The Note represents funds advanced by Lender at the special instance and request of Borrower for the
purpose of acquiring the entire fee simple title to the Property and the existence of an owelty of partition imposed
against the entirety of the Property by a court order or by a written agreement of the parties to the partition to
secure the payment of the Note is expressly acknowledged, confessed and granted.
D Renewal and Extension of Liens Against Property.
The Note is ·in renewal and extension, but not in extinguishment, of the indebtedness described on the
attached Renewal and Exte~ion Exhibit which is incorporated by reference, Lender is expressly subrogated to all
rights, liens and remedies securing the original holder of a note evidencing Borrower's indebtedness and the
original liens securing the indebtedness are renewed and extended to the date of maturity of the Note in renewal
and extension of the indebtedness.
D Acknowledgment of Cash Advanced Against Non-Homestead Property.
The Note represents funds advanced to Borrower on this day at Borrower's request and Borrower
acknowledges receipt of such funds. Borro~er states that Borrower does not now and does not intend ever to reside
on, use in any manner, or claim the Property secured by this Security Instrument as a business or residential
homestead. Borrower disclaims all homestead rights, interests and exemptions related to the PrCIP~Iil¥~~
Texas Deed ofTrust-Single Famlly-Fanaie Mae/J'reddle Mac UNIFORM
INSTRUMENT
13
TabB
RECORD 96
0 0
28. Loan Not a Home Equity Loan. The Loan evidenced by the Note Is not an extension of .
credlt as defined by Section 50(a)(6) or Section SO(a)(7), Article XVI, of tbe Texas Constltutloa. IC the
···. :
Property Is used as Borrower's residence, then BorroWer agrees that Borrower wiD receive no cash from the
Loan evidenced by the Note and that any advances not necessary to purchase the Property, exdagulsh an
owelty lien, complete construction, or renew and e:s:tend .a prior lien against the Property, will be used to
reduce the balance evidenced by the Note or such Loan will be modified to evidence tbe correct Loan
balance, at Lender•s opUon. Borrower agrees to execute any documentation necessary to comply with this
Section 18.
BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Security
Instroment and in any Rider executed by Borrower and recorded with it.
WITNESS TilE HAND(S) AND SEAL(S) OF TilE UNDERSIGNED.
~
~~w..X. ;&tt:k
-'1
date "Sip~IIIIO
David C. Petruska Sandra L. Petruska
(Sign Originals Only]
~=FoF Von tANi1 f;v
The foregoing instrument was aclmowledged before me this ~day of AJfl JJ
.....~ L.-..k",jl
, 2 £ by David
c. ~
e PAMALANEAI.
Notary PtMa.SiateoiT8111S
My Comm. Ellplrea feb. 15, 2010
•
Texas l>eed efTtuat-8111gle Famii;)'-JlaaJIIe Mae/Jlredd'• Mac: UNIFORM
INSTRUMENT . '
H
TabB
RECORD 97
. .·:..- ..
Document No. 2008-004602
GENERAL WARRANTY DEED WITH VENDOR'S LIEN
GUTZKE
···- HELMUTH
.................
-···~ .- . ----··.K--··--··
ET UX ..... --- ..... ..
to
FILED A~D RECORDED
RE:\L RECORDS
On: 05120/2008 at 03:01 PM
Docum~nt :\ umh.:r: 2008-004602
Rl!cl!ipt :\o.: 20086954
.-\mount: $ -=2~4..::..:00:---
By: esmith
Chari ott~ Bl\!dsol!. County Clerk.
\'an Zandt County. TI!Xas
4 Pages
"""*DO ~OT RE~·IO\-'l~ Til lS P.-\GE- IT IS·A PART OF TI-llS l~STRl!~IENT*"""
STXI'E OF TEXAS
<'Ol -~T Y OF \'A:~ lA.\!DT
I her~by c~rut)• that this rn!ilrum~t wa:~ fll.:oJ (lO th.: dat~ nnc.l time :1tumpcd herl!on hr
nw and wa:> duly recl,rd~d und~r th~ Document 1\um~r a\Rmpl!d h.:rQlJ1 ot'thc <>fficial J>uhlic
Record.-; of Van lundt Countr
<'hnrlouc Blc:dsoc. County C'h:rk
•
Ri!~o'ord and R!!turn To:
DAVID C. PETRUSKA
11264 RUSSWOOD CIRCLE
DALLAS, TX 75229 lll~llllllllllllllllll~llllllllllll
TabC
RECORD 98
·:···
AFTER RECORDING RETURN TO:
David C. Petruska
11264 Russwood Circ:Je
Dall~s, TX 75229
- - - - -- - - ---(Space Above This Line l'or Recording Dalal--- -- - - --
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING
INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN
REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS:
YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
General Warranty Deed with Vendor's Lien
Date: Executed on the date set forth in the acknowledgement herein, but to be effective the Sixteenth day of
May,2008.
Grantor:
G<>nto<'o Mailing Add.e•"lit/f;
~ , .tZl
r
Helmuth K. Gutzke an~i~e, Zackfann Gutzke
I
f'/8£,-J,
Tj 7,5'7
:41·
I
Grantee: David C. Petruska and wife, Sandra L. Petruska
Grantee's Mailing Address: 11264 Russwood Circle
Dallas, TX 75229 I
t.
Considet·ation:
Ten Dollars ($10.00) and other good and valuable consideration paid to Grantor by Grantee and 1'1
note of even date in the principal amount of Two Hundred Seventy Four Thousand Five Hundred
and 00/100 Dollars - ($274,500.00) made by Grantee payable to the order of Compass Bank ,
"Lender" herein, as consideration for the amount paid to Grantor. The note Is secured by a
vendor's lien retained in favor of Lender In this .deed and by a deed of trust of even date from
Grantee to Jon Mulkln , Trustee.
Property (including any improvements):
All that certain lot, tract or parcel of land situated in VanZandt County, State of Texas, on theM.
V. Lout Survey, A-468, and being all of the residue of the called 5.753 acre first tract and all of the
called 20.00 acre second tract conveyed to Helmuth K. Gutzke and wife, Zackiann Gutzke, by A. D.
Ward, a single man, by Warranty Deed with Vendor's Lien dated JuJy.30, 1990, and recorded in
Volume 1207 Page 390, of the Van Zandt County Real Records, together with an Easement for
Roadway situated in VanZandt County, State of Texas, on theM. V. Lout Survey, A-468 and being
a part of the called 68.78 acre tract conveyed to Thomas M. Lytle and Ellen Lytle, by Ricky Lee
Hadley, by General Warranty Deed recorded in Volume 1771, Page 609, of the VanZandt County
Real Records and a part of the called 1.10 acre tract conveyed to Thomas M. Lytle and Ellen Lytle,
by Ricky Lee Hadley, by Genlral Warranty Deed recorded in Volume 1771, Page 629, of the Van
Zandt County Real Records and said lot, of land being more particularly described
General WIUTilllty Deed wllh Veodor'sl,lcn
,-~(:IPJ!IiiBonPo1~cl1!oan, UP.-Arlington, Te){a& 2004-lOOS
[Doc ld 3479 Rev. 09.li.D7]
RECORD 99
by metes and bounds in Exhibit "A" attached hereto and made a part hereof.
The above described property also includes any and all of Grantor's right, title, and/or interest in
any and all system memberships and/or O\mersbfp certificates in any non-municipal water and/or
sewer systems now or In the future serving said property.
Reservations from and Exceptions to Conveyance and Warranty:
This conveyance is given and accepted subject to any and all restrictions, reservations, covenants,
conditions, rights of way, easements, municipal or other governmental zoning laws, regulations and
ordinances, If any, affecting tbe herein described property.
Grantee herein assumes the taxes for the current year.
Grantor, for the consideration and subject to the reservations from and exceptions to conveyance and warranty,
grants, sells, and conveys to Grantee the property, together with all at:td singular the rights and appurtenances
thereto in any wise belonging, to have and hold it to Grantee, Grantee's heirs, e~ecutors, administrators,
successors, or assigns forever. Grantor binds Grantor and Grantor's heirs, executors, administrators, and
to
successors to walTant and forever defend all and singular the property Grantee and Grantee's heirs, executors,
administrators, successors, and assigns against every person whomsoever lawfully claiming or to claim the same or
any part thereof, except as to the reservations from and exceptions to conveyance and warranty. The vendor's lien
(to the extent of the consideration paid by Grantee to Grantor) against and superior title to the property are retained
" until each note described is fully paid according to its terms, at which time this deed shall become absolute. The
vendor's lien and superior title retained in this deed are transferred to Lender, without recourse on Grantor. When
the context requires, singular nouns and pronouns include the plural. When executed by a cotporation the words
"heirs and assigns" shall be construed to mean "Successors and assigns".
~~ TIJE jND(S) ~D SBAI{S) OF TIJB ~?:NED: ; c?jf)/ .
4
DMc ~/r.S~~.~~~~~~--"~~--~~~
~~--~0-~---
// ~ klann Gutzke l
L... . / [Sfgn OriglnBfs Only]
~~P0~BXAS~ ~r/1
'Ibe~or ins~entt
e uth
oing
utzke
was nclcnJjwiOO before mo !hi>
Zacklann Gut
~•Y .)J
~
J i/ , Jfl by
. ·-17~
RECORD 100
.-~·
. Exhibit "A"
All that certain lot, tract or parcel of land situated in VanZandt County, State of
Texas, on theM. V. Lout Survey, A-468, and being all of the residue of the called 5.753
acre first tract and all ofthe called 20.00 acre second tract conveyed to Helmuth K.
Gutzke and wife, Zackiann Gutzke, by A. D. Ward, a single man, by Warranty Deed
with Vendor's Lien dated July 30, 1990, and recorded in Volume 1207, Page 390, of the
VanZandt County Real Records. Said Jot, tract or parcel of land being more particularly
described by metes and bounds as follows:
BEGINNING at a %• iron rod found for corner at the Southeast corner of the
called 20.00 acre second tract, at the Southwest corner of the Arthur C. Werden tract
recorded in Volume 2028, Page 309. of the Van Zandt County Real Records, and in the
Northeast line of the Thomas M. Lytle 68.78 acre tract recorded in Volume 1771, Page
609, of the Van Zandt County Real Records, from WHENCE a fence comer found
bears North 78 degrees 05 minutes 37 seconds West 2.58 feet;
THENCE NORTH 44 degrees 40 minutes 21 seconds West 648.90 feet to a 5/8"
iron rod set for corner at the South corner of the Thomas M. Lytle 1.622 acre tract
recorded in Volume 2188, Page 463, of the Van Zandt County Real Records;
. THENCE NORTH 43 degrees 59 minutes 44 seconds East 105.86 feet to a%"
iron rod found for corner at the East corner of the said 1.622 acre tract;
THENCE NORTH 45 degrees 25 minutes 00 seconds West 668.07 feet to a %"
iron rod found for corner at the North corner of the called 1.622 acre tract, in the original
Northwest line of the called 5.753 acre first tract, and in the Southeast line of the
Thomas M. Lytle 1.10 acre tract recorded in Volume 1771, Page 629, of the VanZandt
County Real Records;
THENCE NORTH 44 degrees 05 minutes 12 seconds East 1152.76 feet to a
railroad spike set for corner in County Road No. 23 19, at the North comer of the called
20.00 acre second tract, from WHENCE a 60d nail found at the East corner of the said
Thomas M. Lytle 1.1 0 acre tract bears North 44 degrees 05 minutes 12 seconds East
2.65 feet and a %" iron rod found In the South right of way of the said county road bears
South 38 degrees 58 minutes 47 seconds West 23.09 feet;
THENCE SOUTH 81 degrees 39 minutes 33 seconds East along the said county
road and the North line of the called 20.00 acre second tract, 322.19 feet to a railroad
spike set for corner In the South Une of the B. W . Ward 106.60 acre first tract recorded
in Volume 1654, Page 588, of the VanZandt County Real Records, at the Northwest
corner of the said Arthur C. Werden tract and at the Northeast comer of the called
20.00 acre second tract, from WHENCE a 5/8" iron rod set in the South right of way line
of the s,ald county road bears South 08 degrees 20 minutes 49 seconds West 19.00
feet and a 48" Pecan tree found marked X with two hacks above and below the X bears
North 62 degrees 57 minutes East 60.40 feet;
THENCE SOUTH 08 de!frees 20 minutes 49 seconds West along the East line
of the called 20.00 acre second tract and the West line of the said Arthur C. Werden
tract 1806.98 feet to the place of beginning and containing 24.020 acres of I~
. .. ~;~
TabC
RECORD 101
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RECORD 102
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RECORD 103
·<·.·
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tri:i"i:itnn-,·• nt'i.·. ·. i'ecjulred by the contract, Seller, at Seller's
f r;!lriwln;;i": tepairS' ari(ftf~atmelits:
. ·.
· 0(~)·. ~~-~-~t~ ~~ :~a·~~~a·~~ .9 6r the contract Is changed to _ _ _ _ _ _ _ _ __, 20._ __
Cl(4) The amount In Paragraph 12A{l)(b) of the contract Is ch~ged to . $ -- - - -- ---'
0(5) The cost of lender required repairs and treatment, as ft~mlzed on the attached list, will be paid
as follows: $ · by Seller; $ by Buyer.
Cl(6) Buyer has paid Seller an additional Option Fee or$ for an extension of the
unrestricted right to terminate the contract on or before - - - - - - - - - - - - - -
20 . . . This addlt.lonal Option Fee CJ will CJ will not be credited to the Sales Price. ·
Cl(7) Buyer waives the unrestrl~d right to ter~lnate the contract for which the Option Fee was paid.
Cl(S) 'The·date: fo~: Buyer to' give written notice to Seller that Buyer czmnot obtain Ananclng Approval
as ·set rottn·t;; the Third Party Flnancfng Cohdltion Addendum Is changed t o - - - - - - - - '
}(c91·· ~~~~.~~-~k~~,-~ns:' (!nsert only f~ctuat StatEillients ·~nd business details applicable to·thts sale.)
A .S~J.t."6~, ·- ~IJ! ~«Yd"~ A~.t++~~~~E~~u~~~~to~~~rt:.~~~~ ....
r= ·.~· ·:... .
J
1
I
l This fonn has be!en approved by the Texas Real Est21te Commission for use with approved oi
P!Jimf.!1!9il.l'W;'!:Ag
fonns. Such approval relates to this form only. TREC fonns ere lnM!nded for use only trained real•'tl"'~'
representation Is made es to the legal validity or edequacy of any provision In l!lllY specific trarlSIIc:tlorJS.::"·I
complex transactions. Texas Real Estate Commission,. P.O. Box 12188, Austin, lX 78711-2188, l~BOOj~"5$11df?~
6544 (hltp:/fwww.trec.ml:e.tx.us) TREC No. 39-6. This form replaees TREC No. 39·5.
.. . . •,
RECORD 104
Ultl I IIC.UUO 111.1 ... 0 r.VVIIUIV
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ELLIOTT & WALDRON ABSTRACT & TITLE COMPANY
OF CANTON, TEXAS
OWNED BY
A.A.A. ABSTRACJ' COMPANIES, INC.
Ci81 W. DALLAS, P.O. BOX 7Ci0
CANTON, TEXAS 75103
TELEPHONE (903) 567-4ll7
PAX (903) 5fl1·1757
..
·: . . AprillO; 2008 .·
Briggs Freeman
Attn: Doug Shelton
5600 W. Lovers, Ste. 225
Dallas, Texas 75209 · ' .
RB: GF# 080258
Buyer: David and Sandra Petruska I Seller: Helmuth and Zackiann Gutzkc
Dear Mr. Shelton:
Enclosed are the following:
[X] Commitment
[X] Privacy folicy Notice
Please caref\llly review the requirements on Schedule C of the Commitment. We can not close
or issue a policy until all requirements ha~e been met.
Your file wi11 be professionally handled in our office· by Pamala Neal, Closer.
We look forward to working with you. If you have any que5tions at· this time, please do not
hesitate to call.
Sincerely,
& WALDRON ABSTRACT
CTJ:;;b~N
sa Overton ·
Examiner
LO/cw
TabF
RECORD 105
U'fll 11-'UUO r .vu.:.tu tu
COMMITMENT FOR TITLE INSURANCE
SCHEDULE A
Effective Date: April 9, :!008, 7:00 am G.F. No. or File No. 080258
Commitment No. issued: AprU 10,2008, 7:00am
(if applicable)
1. The policy or policies to be issued are:
(a) OWNER POLICY OF TITLE INSURANCE (Form T-1)
{Not applicable for improved one-to-four family residential real estate)
Policy Amount:
PROPOSED INSURED:
(b) TEXAS RESIDENTIAL OWNER POLICY OF TITLE INSURANCE-
ONE-TO-FOUR FAMILY RESIDENCES (Form T-lR)
Polioy Amount: $305,000.00
PROPOSED INSURED: David C. Petruska and Sandra L. Petruska
(c) MORTGAGEE POLICY OF TITLE INSURANCE (Form T-2)
Policy Amount: $274,500,00
PROPOSED INSURED: To Be Determined
Proposed Borrower: David C. Petruska and Sandra L. Petruska
(d) TEXAS SHORT FORM RESIDENTIAL MORTGAGEE POLICY OF TITLE INSURANCE (Form T-2R)
Policy Amount:
PROPOSED INSURED:
Proposed Borrower:
(e) MORTGAGEE TITLE POLICY BINDER ON INTERIM CONSTRUCTION LOAN (Form T-13)
Binder AmoWlt:
PROPOSED INSURED:
.Proposed Borrower:
(t) OTIIER
Policy Amount:
PROPOSED INSURED:
2. The interest in the land cover~d by this Commitment is: Fee Simple Estate
3. Record title to the land on the Effective Date appears to be vested in:
Helmuth K. Gut.zke and wife, Zacldann Gutzke
4. Legal description of the land:
22 ACRES, MORE OR LESS, TO BE SURVEYED OUT OF THE FOLLOWING:
FIRST TRACT:
All that certain lot, tract or parcel of land situated in Van Zandt County, Te:&:as, on theM. V. LOUT
SURVEY, A-468, and being a part of the 91.65 acre tract conveyed to Clota Mae.Shelton by Bettie Joan Westberry
by deed recorded in Volume 720, Page 453, of the VanZandt County Deed Records. Sald lot, tract or parcel of land
being more parUeularly described by metes and bounds as follows:
BEGINNING at ·an iron pin in the Southwest line of the 91.65 acre tract, South 45 degrees 03 minutes East
30.00 feet from tbe West corner olsame and being the South corner of the Second Tract recorded in Volume 695,
page 159, of the VanZandt County Deed Records;
THJNCE North 44 degrees 34 rJlllinutes East 831.10 feet to an Iron pin at the West Northwest corner of a
20.00 acre tract surveyed this date in the Southeast line of the Second Tract; WITNESS: 16' Post Oak North 20
· degrees East 76.3 feet, 18" Post Oak North 40 degrees West 30.9 feet; ·
THENCE South 8 degrees 44 minutes West 1030,:!3 feet to an Iron pin at the Smllthw~~~t.
acre tract in the southwest line of the 91.65 acre tract;
Old Republic National Title Insurance Company
Tab F
RECORD 106
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WARNING! WARNING!
!.
DO NOT USE LEGAL DESCRIPTION ON TITLE
COMMITMENT FOR YOUR DOCUMENTS IF A
NEWSURVEYHAS BEEN REQUIRED/II
THIS TITLE COMMITMENT HAS BEEN PREPARED WITHOUT RECEIPT
OF NEW SURVEY. .
THIS LEGAL DESCRIPTION WILL NOT MATCH THE NEW SURVEY. .
UPON RECEIPT OF NEW SURVE~ TITLE COMMITMENT WILL BE
AMENDED.
. .
WE WILL NQT BER£SPONSJBLI? FOR DOCUMENTS DRAWN USING
THISLEGALDESCR/PTION/11
IF YOU HAVE ANY QUESTIONS, PLEASE CONTACT OUR OFFICE.
"
TabF
RECORD 107
(FAX) P.0041010
G.P. No. 080258
.·
. . BEING a 1.622 a:cre tract and being aU that certain lot, tractor parcel of land altuated In the M.V, Lout
surVi;y;Abltraet No. 468, VanZandt County, Te:us, and being part of a called 5.753 acre tract and part of a called
lO.~·acre' tract de1crlbed as Flrlt Tract and Second Tract, respectively ln a deed from A.D. Ward to Helmuth K.
Gatzke and wife, Zacldann Gutzke as recorded In Volume 1207, Page 390, VanZandt County Real Records, and
b!llne more particularly described as follows:
· BEGINNiNG at a l/2 inch Iron rod round at tbe west corner of said 5.753 acre tract and at an Inside corner
of a called 1.10 acre tract described In a deed to Lytle as recorded In Volume 1771, Page 629, ~.Z.C.R.R., for a
comer;
THENCE N 46°49134 11 E the northwest Uno of said 5.753 acre tract and an East Une or said 1.10 acre tract a
distanee of 105.78 fee~t to a 1/2 inch iron rod 1et for a corner;
THENCE S 41"39'17" E across said 5.753 and Into said 20.00 acre tract a distance of 668.07 feet to a 117.
Inch Iron· rod 1et for a corner;
THENCE S 46°49'34" W a distance of 105.781eet to a· 1/2 inch iron rod set on the southwest line of said
20.00 acre tract for a corner, said point being on the northeast Une or a called 35.02 acre tract described ali Traet
Two in a deed to Hadley as recorded In Volume 1583, Page 19~, V.ZC.R.R,;
THENCE N 42°39'17" W along the southwe&t Une or said 10.00 acre tract and said 5.753 acre tract and the
northeast line of s~tld 35.02 acre tract and an ealt line of said 1.10 acre tract passing the west corner of slifd 20.00
. acre tract and the south corner of said 5.753 acre tract at a distance of 64.16 feet and pamae a 1/7. Inch iron rod
found at the.ea•t corner of said 1.10 acre tract at a distance of 357.98 feet and continuing a total distance of 668.07
feet to the POINT OF BEGINNING and containing 1.622 acres ofland.
Being the same land in General Warranty Deed dated October 27, 2006 from Helmuth Gutzke and
Zackiaon Gutzke to Thomas M. Lytle and Ellen G. Lytle, recorded in Volume 2188, Page 463, Real Records of Van
Zandt County, Texu.
All that certain lot, tract or parcel of land situated In VanZandt County, Tuu, on the H. V. LOUT
SURVEY, A ...68, and b.elng a part of the 91.65 acre traet conveyed to Clota Mae Shelton by Battle Joan Westberry
by deed r~orded In Volume 710, Page 453 of the VanZandt County Deed Records. Said lot, tract or parcel of land
b'etog ~n~e particularly d~cribed by metes and bounds as foUows:
BEGJ:NNING at a point In the North line of the 91.65 acre tract in the middle or a county road, North 81 .·.
··'
degren 16 minutes.West 788.75 feet from tJi\ Northeast corner of same 'and at the Northwest comer of a 10.00 acre
tract surveyed this date; WITNESS:. -· Iron pin In fence, South i1 degrees 44 minutes West 19.00 feet. 16" Pe~:an
North 62 degren 57 minutes East 60.40 teet; ·
Old Repuhlk National Title Insurance Company
TabF
RECORD 108
CERTIFIED COpy
1\1 ...;:11
r ,UVIJIU 1\1
\l'tll II.C:U\10
Continuation of Schedule A O.F. No. 0802!58
THENCE South 8 degren 44 minutes West 1804.58 feet to an iron pin In the Southwest Une ofi the 91.65
acre tract at the Southwest corner of the 20 a ere traet;
THENCE North 45 degrees 03 minutes Weat 712.47 feet to an iron pin In the Southwest Une of the 91.65
acre tract at the South corner of a 5.753 acre tract surveyed this date;
THENCE North 8 de&reel 44 minutel East 1030.23 feet to an Iron pin In the Southeast tine of the Tract No,
2 recorded In Volume 695, page 159; WITNESS: 16" Post Oak North 20 degrees East 76.3 feet,18" Post Oak North
40 degrees West 30.9 feet;
THENCE North 44 degrees 34 minutes Ea11t 435.90 feet to an iron pin at the Nortbeast.corner of the Second
tract In the North line or the 91.65 acre tract; WITNESS: Iron pin for comer, South 44 degrees 34 mlnute.s West
24.5 feet; ·
THENCE South 81 deerees 16 minutes East 319.61 feet to the plaee of beginning and eontaining 20.00 acres
of land o! wblch 0.146 aeres lies within a county road, leavin& a net of 19.854 acres,
Being Tra(:t Two In Warranty Deed with Vendor's Lien dated luly 30, 1990 from A. D. Ward, a aln&le ~an
to Helmuth K. Gutzke and wife, Zacklann Guttke, recorded In Volume 1207, Page 393, Real Records of VanZandt
Count)', Texas.
NOTE: The Conwany bl prohlbJted from Jnsurlna the area or quantity of the land described bereln. luly statement
In the above legal deaerlptlon of the ~rea or·quantlty of land Is not a representation that such area ot qu.antltjli-· -· ·- -· · ·
eorrect, but Is made only for Informational and/or ldentlflcatioa purposes and does not override Item l of Schedule
B hereof.
Old RepubUc National Title Insurance Company
TabF
RECORD 109
r ,V\1\IIV IV
U ..P t ll.t:UUO IU.OIU
COMMITMENT FOR TITLE INSURANCE
SCHEDULED
EXCEPTIONS FROM COVERAGE
.In addition to tho Exclusions and Condition& and Stipulations, your Policy will not cover loss, costs, attorneys' fees, and oxponses
resulting from:
1. 'Aie {eJie~ MSI.fieWfCI 88'/'UPh efMetJI'ti i:teRiilled eelew (We IIIIIR eUMr iBseft lpllaifie teeerttiag data 8f delete 'fhis
eeepti&B)! .
2. A:o.y diacrepancici, conflicts, or shortages in area or boundary linea, or any cncroacllmants or protruaioDS, or any
ovorlappbig of improvemt'lnts. ·
3. Homostcad or conmnmity property or survivorship rights, if any, of any spouse of any insured. (Applies to the Owner
Policy only).
4, Any titles or rights asserted by anyone. including. but not limited to, persons, the public, corporations, governments or other
entities,
a. to tidelands, or lands comprising the shores or beds of navigable or perennial rivera and streams, lakes, bays, gulfs
or oceans, or
b. to lands beyond the line of harbor or bullchead linea as established or changed by any governtn~mt. or
c. to filled-in lands, or artificial islands, or
d. to statutory water right&, including riparian tight&, or
e. to the area extending .from the line of mean low tide to the line of vegetation. or the rights of access to that area or
easement along and across that area.
(Applies to 1he Owner Policy only.)
s. Standby fi::es, taxes and assessments by any taxing authority for the year 2008, and subsequent yeara; and wbsequent taxes
and usossmcnt.s by any taxtDg authority for prior years due to change in land UBage or ownmbip, but not those taxes or
of
assessments for prior years because of an exemption granted to a previoUB owner the property under Section 11.13,
Texas TG Cods, or because of improvements not auosscd for a previous tax year. (IfTexas Short Form Residential
Mortgagee Policy (T-2R) is iuued, that policy will substitute "which become due and payable subsequent to Date of ;.
Policy" in lieu of "for the year _ _ and sUbsequent years.11)
6. The terms and conditions of the docurnimts creating your interest in the land.
7. Materials ftunishod or labor pcrfonned in connection with planned construction before signing and delivering the lien
document described in Schedule A, Jftlut land is part of the homestead of the QWIW', {Applies to the Mortgagoo Title
Policy Binder on Interim Construction Loan only, and may be deleted if aatis:fllctory.evidence ia furnished to us before a
binder is issued.) ·
8. Liens and leases that affect tho title to the land, but that arc subordinate to the lien of the insured mortgage. (Applies to
Mortgagee Policy (T-2) only.)
9. The Exceptions from Coverage and Exprcsltflnsurancc in Schedule B of tho Texas Short Form Residential Mortgagee
Policy (T-2R). (Applies to Texas Short Fonn Residential Mortgagee Policy (f-2R) only. Separate cxocpti.Q.tw.ltl
of this Schedule'S do not apply to the 'Texas Short Form Residential Mortgagee Policy (T-2R).
Old Republic National Title Insura~cp Company
TabF
RECORD 110
r.uunu1u
V"l/1 u.r.uug IU,;,u
Continuation of Schodulc B G.F. No, 080258
10. ':fho following matters and all terms of the documents creating or offeri.nS evidence of the matters {We must insert matters
or delete this exception.):
Easements or claims or ea1ement1 whleh may or may not be recorded in the pubUc records or Van Zandt,
County, Texas. '
Any portion ofsubjeet property lyiug within the boundarlea of a pubUe or private roadway whether
dedicated or not.
There is expressly excluded from coverage hereunder, and this c:ompany does notinsure title to oil, gas and
other minerals of enry kind and character, In, and on and under the property herein described.
..
RJ&bt of Way In certified copy of Judgment to DELID GAS PIPELINE CO. from CLOTA MAE SHELTON
in ln1trument dated Augult 3, 1971, recorded In Volume 783, Page 7491 of the. DEED Records ofVan Zandt
County, Texas.
e. Item 3b of any T-19 Issued wiD be deleted.
r. Rights or parties fn poas&~~Jon. (Owner's Po~cy Only)
g. Terms, conditions and stipulations as wUI be set out in Warranty Deed from Seller to Buyer given In
eonueetlou herewith.
h. Protrusion(t), eneroacbment(s), eaaement(s) aa shown on any plat that may be furnished by approved
surveyor In conneetlou with this transaction.
Old RepubUe National Title Insurance Company
TabF
RECORD 111
.. ·;·
f',UUOIUIV
UIJIIII.l::UUO
COMMITMENT FOR TITLE INSURANCE
SCHEDULEC
Your Policy will not cover loss, costs, attornoys' fees, and expanses resulting from the following requirements that wfll appear as
Exceptions in Schedule B of the Policy, unless you dispoao of those matters to our satisfaction, before the date the Policy is issued:
l. Documents creating your title or interest must be approved by us and must be signed, notarized and filed for record.
2. Satisfactory evidence must be provided that:
a. no person occupyiDg the·land claims any interest in 1hat l~nd agahlat the persons named in pamgraph 3 of Schedule
.J\,
b. all standby fees, taxca, assessments and charges agaiOBt the proporty have been paid,
c. aD improvements or repair& to 1he property are completed and accepted by .the owner, and that all contractors,
subcontractors. laborers and suppliers have been fully paid. and that no mechanic's. laborer's or materialmen's liens
have attached to the property.
{\ ...... d. there is legal right of access to and from the land,
e. (on a Mortgagee Policy only) restrictions have not been and will not be violated that affect the validity and priority
of the insured mortgage. ·
3. You must pay the seller or borrower the agreed amo!;Ult for your property or interest.
4. Any defect, lien or other ·matter that may affect title to the land or interest insured, that arises or is filed after the effective
date of this Commitment
5. Payment of any and all taxes now due and payable up to and including the year 2007.
6. We require "GOOD FUNDS" In accordance with PrGCedural Rule P-27 which requires that "Good Funds" be
received and deposited before a Title Agent may dlsburae from ltl trust fund aceount. "Good Funds" means: 1) Cash
or wire tranlfers; 2) Certified Checkl, Calhler's Checks and Teller's Checks; 3) UneertfQed filnds In amounts less that
$1,500.00 inducUng chedca, traveler's ebecks, money orders and ne11otJahle orden of withdrawal; pro"Yfded multiple
items sbaU not be used to avoid tbe $1,500.00 limitation; 4) Uncertified funds In the amount of $1,500.00 or more,
dratl:a and any other items when collected by the finauclallnstitution; 5) State ofTeus Warrant.; 6) Unltud States
Treasury Cheeks; 7) Chec.kJ drawn on a bank of savings and loan aasociatlon, Insured by the FDIC or FSLIC and for
which a transaction code bas been fsaued pursuant to, an~ In compliance with, a fuUy executed Immediately Available
Fund Procedure Aareemeot (Form T-37) with sucb bank or sannp and loan auoclation; 8) Checks by city and county
rovernmentllocated in the State of Texas.
7. We require an Affidavit of Debts and Liens ~o be slened by the SeDer.
8. We: reqplre a Waiver ofln~pectfon to be signed by the Purchaser.
9. We ·r equire a release of Deed of Trust dated A111ust 18, 2003 from HELMUTH K. GUTZKE AND WIFE, ZACia.ANN
GUTZKEto DENNIS P. SCHWARTZ, Tru1tee, aecurinc a note for $77,000.00, payable to FIRST NATIONAL BANK
OF CANTON, recorded In Volume 1851, Paee 283 of the REAL Recorda of Van Zandt County, Texas. .
. ..
10. We require a Warranty Deed from HELMUTH K. GUTZKE AND WIFE, ZACKIANN GUTZKE to DAVID C.
PETRUSKA AND SANDRA L PETRUSkA, with vendor's Hen retained In favor of LENDER., repreaenting part o(
the· purchase prJee and being In the amount of $274,500.00. ·
11. We require a Deed of Trust and Note In the amount of $274,500.00 from DAVID C. PI!:TJtU:Sij:~~-~MJ$·~~~
SANDRA L. PETRUSKA to Trustee, for tbe benefit of LENDER.
Old Republic: National Title Insurance Company
TabF
RECORD 112
U'tt
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au ...uvu r eUU~IUIY
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Continuation of Schedule C G.P. No. 080258
12. We require a Survey accordlug to terms and condttiona set forth in the contract and to determine exaet size and
location of aubjeet property.
13. H closing in our omce, we require all dolling documents and ftgurea be In our office at least :Z4 hours prior to closing,
or elolfn&: date and time will be cba02ed.
Countersigne
EUlott& al
Canton
"··
Old Republic National Title Insurance C ompany
TabF
RECORD 113
U411 II"UUCI
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COMMITMENT FOR TITLE INSURANCE
SCHEDULED
G.F. No. or File No. 080258 Effective Date; April9, 2008, 7:00am
· Pursuant to the requirements of Rule P-21, Basic Manual of Rules, Rates and Forms for the writing of Title Insurance in the State of
Texu, the followiq disclosures are made:
l. Tho following individuals are directors and/or officers. aa indicated, of the Title Insurance Company issuing this Commitment
DIRECTORS OF OLD REPUBUC NATIONAL TITLE INSURANCE COMPANY
HARRINGTON BISCHOF JOHN M. DOXON STEVER. WALKER
JOHNW.POPP ARNOLD L. STEINER A.C.ZUCARO
OFFICERS OF OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY
RANDE E. YEAGER, President & Chief Operating Officer STEPHEN C. WILSON, Executive Vice President
GARY J. HORN, Senior Vice President & CFO DANIEL M. WOLD, Vice Prcsidant, Secretary & Senior
MIKE TARPEY, Vice President and Treasurer Corporate Counael
2. TITLE INSURANCE AGENCY
OFFICERS: . DIRECTORS & SHAREHOLDERS:
Ivan Alexander, Jr., Pres. lvanAlexandar, Jr.
Constance H. Alexander, VP Constance H. Alexander
George Ivan Alexander, VP George Ivan Alexander
Philip DeWitt Alexander, Sec. & Tres. Philip DeWitt Alexander i
i·
Lisa Alexandria Mitchell
· 3 Y011 arc entitled to receive advance disclosure of settlement charges in connection with the proposed transaction to which this
commitmcmt relates. Upon your request, such disclosure will be made to you. Additionally, the name of any parson, finn or
corporation receiving any swn from the settlement of this transaction will be disclosed on the closing or settlement statement.
You are further !ldviscd that the estimated title premium• ia:
Ownara Policy Sl,9;J8.00
Mortgagee Policy $100.00
Total $2,038.00
Of this total amount: 15% will be paid kl tQc policy issuing Title Insurance Company: 85% will be retained by the issuing Title
Insurance Agent; and tho remainder of the estimated prcmiwn wiU be paid to other parties as follows: .
Amount ToW,hom PorSexyioes
. . "The eJtimatcd premium is based upon information furnished to us as of the date of this Commi1ment for Tjde
of
Insurance. · Final dotcnmnitticm the amount of the premium will be made at closing in accordmce with the Rules and Regulations
adopted by tho State Board oflnsurance,
•
This commi~ont is invalid unless the insuring provisions and Schedules A, B, and C are attached
Old RepubHc National Title Insurance Company
TabF
RECORD 114
}/)1)
DUNN AND DUNN, PC ATroRNEYSAND COUNSELORS AT LAW
171 S. BUFFALO Sf. CANI'ON, TEXAS 75103 PHONE (903) 567-1111 FAX (903) 567-5101
MAITHEW L. DUNN EMILY DUNN
February 28, 2014
Mr. and Mrs. David Petruska
11264 Russwood Circle
Dallas. Texas 75229
Re: Easement situated in VanZandt County, Texas
Mr. and Mrs. Petruska:
This flrm has been retained by Mr. and Mrs. Tom Lytle concerning the recent
dispute regarding use of their driveway. While my clients have graciously permitted you
to utilize their driveway with the understanding that you would be building your own
soon, no easement was ever filed and recorded in the real property records ofVan Zandt
County regarding your use of this property. All parties were aware that no easement
exi~ted at the time ofyour purchase. as both of you requested.that my clients sign an
easement prior to your closing date. Mr. and Mrs. Lytle did not sign an easement at that
time, nor have they executed anything resembling an easement since.
The deed executed for the purchase of your land and flied on May 20, 2008
contains language reference "an Easement for Roadway"; thus causing a cloud on the
title of my client's land. I am requesting that you execute the enclosed release stating that
there is no easement. lfl do no receive a properly executed release within 30 days from
the date of this letter, I am prepared to litigate this matter.
Thank you for your time and consideration of this matter. If you have any
questions, please do not hesitate to contact my office at (903) 567-1111.
Sincerely,~0
EJD/hj
. ·-<4yJ{..esywm o
Enclosure
CC: Compass Bank (CMRRR)
401 West Valley Avenue
Homewood, Alabama 35209
Marie Yamane (CMRRR)
Compass Bank
40 I West Valley Avenue
Homewood, Alabama 35209
TabG
RECORD 115
Petruska & Associates (CMRRR)
5944 Luther Lane, Suite 450
Dallas, Texas 75225-5978
Mrs. Petruska (CMRRR)
Briggs Freeman Sotheby's
5600 West Lovers Lane, Suite 224
Dallas, TX 75209
TabG
RECORD 116
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March 26, 2014
·• ·EWJar. Tecu 752lS
Phone: 214.JSl.OI-41
Cell: 114.762.-4611
Emily Jones Dunn, Esq. Eoflllil:
Dunn and Dunn, PC ~~
.. •Fax: l14~U9l5
171 S. Buffalo Street
Canton, Texas 75103
CERTIFIED MAIL NO. 7012 2920 0002 2647 4268
RETURN RECEIPT REQUESTED
Dear Ms. Dunn:
Enclosed herewith please find the document you requested which you say will remove
the cloud from the Lytle's title. We are signing this even though we believe and have been
advised by others that we have a valid easement conveyed by the sellers to us. Having said that,
life is too short to deal with petty matters.
As you may know we commenced work on a separate entrance to our home before we
received your letter of February 28th. You may check with Commissioner Melton regarding the
date. Said entrance Is now completed.
We ask that you please instruct the Lytle's to refrain from screaming obscenities at us
and threatening our property by yelling that they will be there when we are not.
We hope this puts the matter to rest.
Very truly yours,
TabH
RECORD 117
. RELEASE OF EASEMENT
On JVlt:.rch db Jh. 2014, we, David C. Petruska and wife, Sandra L. Petruska,
hereby release the easement that is listed in the one certain General Warranty Deed with
Vendor's Lien of record dated May 16, 2008 from Helmuth K. Gutzke and wife, Zackiann
Gutzke to David C. Petruska and wife, Sandra L. Petruska and being recorded in Van Zandt
County under Document ~umber: 2008~004602.
DAVID C. PETRUSKA
~)(~
SANDRA L. PETRUSKA
This instrument was acknowledged before me /2vrvf.v.lf/JiJ/~ Jr on by DAVID
C. PETRUSKA.
RANDALL SCOTT WILLBANICS
My comm,..,_ Ellpiraa
Oc:tofltrt,20t8
This instrument was acknowledged before me
SANDRA L. PETRUSKA.
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No
RAIIJALL SCOTT WIUIANKS :
Mr Commlallon Explraa
~ Oc~rt.20t6
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TabH
RECORD 118
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903 675 9469 .
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No. 14-00172
THOMAS LYTLE and §
ELLEN LYTLE § IN THE DISTRICT COURT
§
v. §
§
DAVID C. PETRUSKA, SANDRA § 29411! JUDICIAL DISTRICT
L. PETRUSKA, COMPASS BANK, §
HELMUTH K. OUTZKE, s.nd §
ZACKlANN GUTZKE § VANZANDT COUNTY, TEXAS
THOMAS AND ELLEN LYTLE'S OBJECTIONS AND RESPONSES TO
DAVID C. AND SANDRA L. PETRUSKA'S FIRST REQUEST FOR ADMISSION TO
THOMAS AND ELLEN LYTLE
TO: Defendant David C. Petruska. and Sandra L. Petruska, by and through counsel,
Pezzulli Barnes, LLP, I7300 Preston Road, Suite 220, Dallas, TX 75252.
Come now, Plaintiffs, Thomas Lytle and Ellen Lytle, s.nd pursuant to Tex. R. Civ.
Proc. 198, serve their responses to the David C. and Sandra L. Petruska's First Request for
Admissions to Thomas and Ellen Lytle.
Request for Admission No. l : 'Please admit that David Petruska and Sandra Petruska signed
the Release of Easement attached here at Tab 1 on or about March 26, 20I4.
Response: Admitted
Reguest for Admissjoo No.2: Please admit that Thomas Lytle, Ellen Lytle, or one of their
attorneys or other agents recorded the Release of Easement at Tab I here, in the public records
for VanZandt County before July 1, 2014.
Response: Admitted
ReQuest for Admission No.3: Please admit that David Petruska and Sandra Petruska had a
new driveway from County Road 2319 to the house on their property at 1601 Van Zandt
County Road built before July 1,.2014.
Response: Plaintiffs admit that David Petruska and Sandra Petruska had a new driveway
from County Road 23I9 to the house on their property at 160 I Van Zandt County Road built,
but Plaintiffs are unable to recall whether the driveway was completed before or after July 1,
2014.
RECORD 122
Respectfully submitted,
ARA L. EMERSON
Texas State Bar No. 06599400
10,000 N. Central Expy, Suite 900
Dallas, Texas 75231
Telephone: 214/954-9540
Facsimile: 214/954-9541
bemerson@bd-law.com
ATTORNEY FOR PLAINTIFFS,
THOMAS LYTLE AND ELLEN LYTLE
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of foregoing has been forwarded
to all counsel via eservice, email and certified mail, return receipt requested on the 6th day of
November, 2014 as provided below.
Willian1 P. Huttenbach Michael F. Pezzulli
Hirsch & Westheimer, P.C. M. Ellen Skinner
1415 Louisiana, 36th Floor Christopher L. Barnes
Houston, TX 77002-2728 Pezzulli Barnes, LLP
(713) 220-9184 Telephone 17300 Preston Road, Suite 220
phuttenbach@hirschwest.com Dallas, TX 75252-5476
(972) 713-1300 Telephone
michae1@courtroom.com
Ellen@courtroom.com
Chris@courtroom.com
Ralph E. Allen
Attorney and Counselor at Law
100 East Ferguson, Suite 901
Tyler, Texas 75702
(903) 593-9727 Telephone
rallen@tyler.net
RECORD 123
Filed 2/12/2015 11 :41 :54 AM
Karen L. Wilson
District Clerk.
Van Zand~~Ps'1tyc~~~~~
Holly Spindle
CAUSE NO. 14-00172
THOMAS LYTLE AND ELLEN LYTLE § IN THE DISTRICT COURT
§
v. §
§
DAVID C. PETRUSKA, SANDRA L. § 294TH JUDICIAL DISTRICT
PETRUSKA, COMPASS BANK, §
HELMUTH K. GUTZKE AND §
ZACKIANN GUTZKE § VAN ZANDT COUNTY, TEXAS
PLAINTIFFS' FIRST AMENDED PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME Thomas Lytle and Ellen Lytle, hereinafter called Plaintiffs, and file
Plaintiffs' First Amended Petition, complaining of and about David C. Petruska, Sandra L.
Petmska, Helmuth K. Gutzke, and Zackiarm Gutzke, hereinafter called Defendants, and for cause
of action would show unto the Court the following:
DISCOVERY CONTROL PLAN LEVEL
1. Plaintiffs intend that discovery be conducted under Discovery Level2.
PARTIES AND SERVICE
2. Plaintiff, Thomas Lytle, is an individual whose address is 1603 VanZandt County
Road 2319, Canton, Texas 75103.
3. Plaintiff, Ellen Lytle, is an individual whose address is 1603 Van Zandt County
Road 2319,Canton, Texas 75103 .
4. Defendant David C. Petruska has appeared in this case and no service of process
is necessary at this time.
5. Defendant Sandra L. Petmska has appeaTed in this case and no service of proc~_ss ....
is necessary at this time.
PLAINTIFFS' FIRST Ai\1ENDED PETITION
\\Bdnt-fs I \wpprolaw\3 19! .002\267954.docx
RECORD 124
6. Defendant Helmuth K.. Gutzke has appeared in this case and no service of process
is necessary at this time.
7. Defendant Zackiann Gutzke has appeared in this case and no service of process is
necessary at this time.
JURISDICTION AND VENUE
8. The court has jurisdiction over this action to quiet title pursuant to Article V,
Section 8 of the Texas Constitution and Section 26.043(8) of the Texas Government Code.
9. Venue in VanZandt County is proper in this cause under Section 15.011 of the
Texas Civil Practice and Remedies Code because this action involves real property located in
VanZandt County.
10. The damages sought herein are within the jurisdictional limits of this Court.
11 . This suit seeks monetary relief of $100,000 or less and non-monetary relief.
FACTS
12. This is an action to quiet title on real property, hereafter referred to as "the
Property", and for damages for a fraudulent claim filed against real property in violation of
Texas Civ. Prac. & Rem. Code§ 12.002. The Property is described as follows:
Roadway situated in Van Zandt County, State of Texas, on the M. V. Lout
Survey, A-468 and being a part of the called 68.78 acre tract conveyed to
Thomas M. Lytle and Ellen Lytle, by Ricky Lee Hadley, by General
Warranty Deed recorded in Volume 1771, Page 609, of the Van Zandt
County Real Records and a part of the called 1.1 0 acre tract conveyed to
Thomas M. Lytle and Ellen Lytle, by Ricky Lee Hadley, by General
Warranty Deed recorded in Volume 1771, Page 629, of the Van Zandt
County Real Records.
13. Plaintiffs are the rightful owners, entitled to possession of the Property by virtue
Real Property Records of VanZandt County, Texas.
PLAINTIFFS' FIRST AMENDED PETITION
\\Bdnt-fsl\wpprolaw\3191.002\267954.docx
RECORD 125
14. On May 16, 2008, Plaintiffs were wrongfully dispossessed of the Property when a
General Warranty Deed with Vendor's Lien was executed by Helmuth K. Gutzke and Zackiann
Gutzke (collectively, "Gutzke") purporting to convey to David C. Petruska and Sandra L.
Petruska (collectively, "Petruska") an easement on the Property (the "Deed"). Said easement
never existed and was never granted by the Plaintiffs or their predecessors-in-interest.
15. The Deed was filed of record May 20, 2008, as Document No. 2008-004602 in
the Real Property Records ofVan Zandt County, Texas.
16. On May 16, 2008, Plaintiffs were further wrongfully dispossessed of the Property
when Petruska executed a Deed of Trust which purported to convey the easement for the benefit
of Compass Bank. That Deed of Trust was filed of record May 20, 2008 as Document No. 2008-
004603 in the Real Property Records of VanZandt County, Texas.
17. Defendants Petruska purport to have an adverse claim or interest in the Property
that operates as a cloud on Plaintiffs' title to the Property and through pleadings before this Court
continue to assert that on May 16, 2008 they acquired an interest in the Property. The nature of
the interest asserted by Petruska in the Property is an easement on Plaintiffs Property.
18. The claim or interest purportedly conveyed to Petruska is invalid, unenforceable
or without right against Plaintiffs because no easement ever existed. Gutzke did not have any
easement or rights to convey. The Deed of Trust signed by Petruska lists an easement that never
existed and was never granted. In order for Plaintiffs to enjoy title to the Property, the adverse
estate or interest claimed and still claimed by Petruska and as set forth in the Deed and Deed of
Trust must be removed.
PLAINTIFFS' FIRST AMENDED PETITION
\\Bdnt-fsl\wpprolaw\3191 .002\267954.docx
RECORD 126
19. At the time of the conveyance from the Defendants Gutzke to Defendants
Petruska, all parties to the transaction knew no such easement existed and knowingly created a
false and fraudulent interest in the Property of Plaintiffs.
20. At the time of the conveyance in the Deed of Trust for the benefit of Defendant
Compass Bank, Petruska knew no such easement existed and knowingly created a false and
fraudulent interest in the Property of Plaintiffs.
21. In executing and causing to have the Deed and the Deed of Trust to be filed,
Defendants knowingly participated in creating a false claim in the Property with the intent to
cause Plaintiffs financial injury by imposing burdens and encumbrances on the real property of
Plaintiffs.
22. Any claim that an easement in the Property existed at any time is invalid and
unenforceable. In order for Plaintiffs to enjoy title to the Property, any claim that an easement
existed or was conveyed by the Deed and Deed of Trust must be removed and declared null and
void.
23. Petruska has taken actions to assert his rights to the easement, including coming
onto Plaintiffs' property and threatening Plaintiff Thomas Lytle with an assault rifle, and
continuing to assert an easement existed in his pleadings before this Court. Plaintiffs have been
forced to retain an attorney who sent a demand for release of any claim for an easement to
Petruska and Compass Bank. While Petruska refused to consent, Compass Bank ultimately
executed a Release of Easement and Petruska continues to seek a declaration that he held a valid
easement and conveyed a valid easement under the Deed of Trust. Plaintiffs have been forced to
incur the cost and expense of seeking to clear title to their property.
PLAINTIFFS' FIRST AMENDED PETITION
\\Bdnt-fs 1\wpprolaw\3191 .002\267954.docx
RECORD 127
DECLARATORY JUDGMENT
24. Pursuant to Section 37.001 et seq. of the Texas Civil Practice and Remedies Code,
Plaintiffs request a declaratory judgment that Plaintiffs are the sole and rightful owners of the
Property and declaring all claims to an easement at any time or currently are null and void.
25. Plaintiffs further request that Defendants be required to execute a correction deed
for the General Warranty Deed with Vendor's Lien and Deed of Trust, and file it with the Real
Property Records in Van Zandt County.
CLAIM FOR DAMAGES
26. The alleged conveyance of the easement was a fraudulent interest in Plaintiffs'
Property.
27. Pursuant to Section 12.002(b) of the Texas Civil Practice and & Remedies Code,
Plaintiffs seek recovery of damages, court costs and attorneys ' fees.
ATTORNEYS' FEES
28. Pursuant to Section 37.001 et seq. of the Texas Civil Practice & Remedies Code,
Plaintiffs seek recovery of court costs and attorneys' fees as are equitable and just.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs, Thomas Lytle and Ellen
Lytle, respectfully requests that Defendants be cited to appear and answer, and that on the final
trial, the court grant Plaintiffs judgment quieting title to the Property and removing cloud on
Plaintiffs' title; declaratory judgment; damages; attorney fees; award of costs, and any other relief
at law or in equity to which Plaintiffs are entitled.
PLAINTIFFS' FIRST AMENDED PETITION
\\Bdnt-fs l \wpprolaw\3 191.002\267954.docx
RECORD 128
Respectfully submitted,
BELLINGER & SUBERG, L.L.P.
By:
BARBARA L. EMERSON
Texas State Bar No. 06599400
10,000 N. Central Expy, Suite 900
Dallas, Texas 75231
Telephone: 214/954-9540
Facsimile: 214/954-9541
bemerson@bd-law.com
ATTORNEY FOR PLAINTIFFS,
THOMAS LYTLE AND ELLEN LYTLE
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of foregoing has been forwarded to
all counsel via eservice and email on the 12th day of February, 2015 as provided below.
Ralph E. Allen Michael F. Pezzulli
Attorney and Counselor at Law M. Ellen Skinner
100 East Ferguson, Suite 901 Christopher L. Barnes
Tyler, Texas 75702 Pezzulli Barnes, LLP
(903) 593-9727 Telephone 17300 Preston Road, Suite 220
rallen@tyler .net Dallas, TX 75252-5476
(972) 713-1300 Telephone
michael@courtroom.com
Ellen@courtroom.com
Chris@courtroom.com
Barbara L. Emerson
PLAINTIFFS' FIRST AMENDED PEIDION
\\Bdnt-fsl\wpprolaw\3191.002\267954.docx
RECORD 129
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TERESA A~ DRUM
DISTRICT JUDGE
294th Judicial District Court
. Pam Kellv 121 East Dallas Street, Room 301
Court Coordinator Canton, Texas 75103-1465
Tel: (903) 567-4422 Fax: (903) 567-5652
July 20,2015
Han. Barbara L. Emerson, Esq. Via email: bemerson@bd-law.com
Attorney for Plaintiffs, Thomas & Ellen Lytle
Han. Ralph !\!lent, Esq. Via email: rallcn@tyler.net
Attorney for Defendants, Helmuth & Zaciann Gutzke
1
Han. Michael Pezzulli, Esq. Via email: Michael@courtroorn .com
Attorney for Defendants, David & Sandra Petruska
NOTICE OF TRIAL SETTING
The Court finds this matter is ripe for trial and sets this matter in a trial before the Court on:
DECEMBER 1st, 2015@ 9:00AM (jury selection)
EVIDENCE TO BEGIN IMMEDIATELY AFTER
A scheduling conference has been set tor thi s case on
JULY 31, 2015 @ 1:30PM for scheduling conference
the following will be discussed:
1. All pending motions
2. All facts which have been stipulated and admitted and require no proof;
3. Probable length of trial ;
4. Availability of witnesses, including out-of-state witnesses;
RECORD 130
5. Proposed special issues, including instructions and definitions
6. Exhibits: Each counsel/party will bring a list of exhibits to be offered and will make all
such exhibits available for examination by opposing counsel. This rule does not apply to
rebuttal exhibits which cannot be anticipated.
a. Any objections to admissibility of exhibits must, where possible, be made at the
pre-trial conference.
b. The offering party will bring and have marked their own exhibits
7. Mediation completed/Mediator agreed upon
8. Social Study completed
9. Scheduling Order
IF YOU DO NOT APPEAR AT THE SCHEDULING CONFERENCE,
THE COURT SHALL PRESUME THAT YOU HAVE NO FURTHER INTEREST IN
EITHER PURSUING OR DEFENDING THE MATTER AND WILL, THEREFORE,
ENTER APPROPRIATE ORDERS PURSUANT TO RULES 165 AND/OR l65A OF THE
TEXAS RULES OF COURT.
IF THE ATTORNEYS SUBMIT AN AGREED SCHEDULING ORDER, THIS
HEARING MAY BE PASSED BY AGREEMENT.
HON. TERESA A. DRUM
294TH DISTRlCT COURT
RECORD 131
Filed 8/4/2015 10:45:22 AM
Karen L. Wilson
District Clerk
Van ZanGilblal~i~
K"mber1y Knowles
NO. 14-00172
THOMAS LYTLE AND ELLEN § IN Tiffi DIS'IRICT CO"QRT
LY1LE, §
§ I
!
v. § ! l
I
§
DAVID C. PETRUSKA, SANDRA L. § 294th JUDICIAL DISTRICT
PETRUSKA, CO:MPASS BANK, §
HELMUTII K. GUTZKE, and §
ZACKIANN GUTZKE § VANZANDT COUNTY TEXAS
PEFENDANT DAVID C. PETRUSKA'S MOTION TO
STAY ALL PROCEEDINGS WITH LEGAL AUTHORITIES IN
SUPPORT
TO THE COURT
COMES NOW, David C. Petruska, Defendant herein, by and through his att~mey of record,
Michael Pezzulli, and respectfully moves this Honorable Court for an Order staying all discovery
proceedings, on the following grounds and reasons:
FACTUAL BACKGROUND
Plaintiff's First Amended Petition seeks to inject state law claims of threat of bodily injury.
Specifically, Plaintiff claims that "Petruska has taken actions to assert his rights to the
easement, including coming onto Plaintiffs' property and threatening Plaintiff Thomas Lytle with
an assault rifle, and continuing to assert an easement existed in his pleadings before this
court.
Motion to Stay
RECORD 132
In essence, Plaintiff's suit papers mirrors the indictment that Plaintiff obtained against the
Defendant in Van Zandt County, Texas on April 21 , 2014. Specifically, the indictment1 alleges
that the Defendant, David Petruska, on or about February 15, 2014, did intentionally or
knowingly threaten Tom Lytle with imminent bodily injury and did there use or exhibit a deadly
weapon, to wit: a firearm, during the commission of said assault and said firearm in the manner
and means of use could have caused serious bodily injury or death to Tom Lytle.2
SUMMARY OF THE ARGUMENT
This requested stay involves weighing Mr. Petruska's fundamental constitutional right to a fair
trial in this civil threat of bodily injury case against a claim that somehow the Plaintiff will be
injured if he cannot maintain a parallel prosecution of the identical claims.
Discovery will obviously seek to elicit evidence from the defendant that he engaged in the
identical alleged illegal activity that is the subject of the State Indictment. The civil proceeding, if
not deferred, will undermine Defendants' Fifth Amendment privilege against self-incrimination,
expand rights of discovery beyond the limits of Texas Rule of Criminal Procedure and expose
the basis of the defense to the prosecution in advance of a criminal trial. A delay of this civil
proceeding will not seriously jeopardize the public interest.
1
A true and correct copy of the indictment is attached hereto as Exhibit 1.
2 Plaintiffs First Amended Complaint at Page 4, Paragraph 23.
Motion to Stay
RECORD 133
LEGAL ARGUMENT
A. When the court forces Relator to choose between waiving his Fifth
Amendment right or suffering an adverse inference in this civil case. an
abuse of discretion occurs.
Should this Court force the Defendant to answer civil discovery and forego his
constitutional right against self-incrimination while the option to stay the civil
proceedings is available, such order would be an abuse of discretion. In Wehling
v. Columbia Broadcasting System, Wehling invoked his Fifth Amendment right to
silence in the civil case while there was a competing grand jury proceeding, and
the district court ordered Wehling to answer the discovery requests or suffer
dismissal of his civil case. 608 F.2d 1084, 1086 (5th Cir. 1979), on reh'g, 611
F.2d 1026 (1980). Subsequently, the district court dismissed his case and
refused to g'rant a stay of civil discovery. /d. at 1086. On appeal and under an
abuse of discretion standard of review, the Wehling court reversed the dismissal ·
of Wehling's civil suit holding the district court's dismissal was "constitutionally
impermissible," for the U.S. Supreme Court has "disapproved of procedures l
I ;
which require a party to surrender one constitutional right in order to assert I
1.
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another." 608 F.2d at 1088 (noting that dismissal of the civil case is inappropriat$f'- !
!-,···.
where other, less burdensome remedies [such as a stay of civil discovery]
Motion to Stay
RECORD 134
available) (citing Simmons v. United States. 390 U.S. 377. 394 (1968)).
Therefore, when a court forces the Defendant to answer civil discovery and
forego his constitutional right to silence while the option to stay the civil
proceedings is available and the Defendant is under criminal indictment for the
same events, the refusal to stay the civil case is an abuse of discretion.
B. If ordered to give a civil deposition, Defendant will be unable to
adequately defend himself in both cases, thus violating his
constitutionaf·rights to due process and against self-incrimination.
Absent the requested stay, the Defendant will be unable to answer any questions
of substance in his civil deposition; therefore, he will be unable to make his
defense to the accusations asserted by the Plaintiff, Tom Lytle. This outcome is
an unconstitutional denial of David Petruska's right to due process in this case. A
fundamental precept of our judicial system is equal treatment under the law and
hamstringing David Petruska by the tactic of insisting on a premature deposition
to force assertion of the Fifth Amendment violates that premise. Once a
deposition occurs in this context, the harm is done, and the bell cannot be
unrung.
This trial court should stay the civil case when, as here, such a stay is necessary
to avoid "substantial and irreparable prejudice." United States v. Little AI. 712
F.2d 133. 136 (5th Cir. 1983) (citing SEC v. First Fin. Group of Tex.. Inc.. 659
F.2d 660.668 (5th Cir. 1981)). In this case, Defendanfs exposure to an adverse
inference from the invocation of the Fifth Amendment would similarly result i~~}l "'.'~.~~~')'
RECORD 140
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C:Ourt: 294111 Judicial District Court of VanZandt County, Texas '. !: .n?.,.
TheStal¢ofTexas Vs. DAVID CHARLES PETRUSKA
Cha~e: PC 5eetfon 22.02-Aggravatcd Assault with a DeadJy Weapbn
Degree: Second De.gree Fl!lony
• · -~ ••·• • • '• ·• • • • • ••-• a" • ·• a • .• • •• • • • • • • a il• a ..A • • • a •• • ·· ·~ -• • ·• • ·• ·• ·• ·• • • • • a ·• • ·• • ·• ·• • • • • • • • • • • .-.·
lN THE NAl\lfE AND BY AUTHORITY OF THE STATE OF TEXAS:
THE GR.A!~D JURY,_ for the County of V~n landt, Stare of Texas. duly selected
impan~led, swam, charged.' and organized as such at lhe JANUARY Term A.D~ 2014 of the
2941• Jvdicial District Co\111 for said County, upori their oaths present ip and to said court at said
term that DAVID CHARLES PETRL'SKA herei11after st)iled Defendant, on or about
Fl!BR.UARY ts11i, 2014, and before the presentrnent of this indictment,Jn the County and Smte
aforesaid. did then ·aQ(i th~ intentiol'\ally or knowingly threaten TOM LTILE. with imminent
bodliy injucy by POIN'fiNO.A FIREARM AT HIM AND THREATENINO TO KILL HIM~ and
did and there use or exhibit a deadly weapon. to wit A FIREARM, during the commission of the
said assault and said FlRtARM .in the manner and means of use could have caused. serious
·bodily ilijuryor d~ to TOM LYTLE;
Against the peace and dignity of the State.
RECORD 145
i·.
T B :Z STAT B 0 F T B% AS
CU4-00185
PRECEPT TO SBRVJ!: DIDJ:CTMEHT
TO THE SHERIFF OF VAN ZANDT COONTY I SAID STATE I GREETING:
YOU ARE HEREBY COMMANDED to serve
DAVJ:D Clt\lJI.BS PB'l'lilUSKA 1 DOB: 5/11/1945
the defendant in Cause No. Ckl4-00185, wherein The State of Texas is
pla.intiff, and DAv.tD CHARLBS Pll'l'Rt1SltA , is defendant, in person, with
the accompanying certified copy of the original Bill of Lndictment now on
tile in 294th District Court, van Zandt County, Canton, Texas.
HEREIN FAIL NOT, but of this Writ make due return as the law directs.
Issued and given under my hand and seal of Office, this the 21st
Of April I 2014.
S H E R X F F' S RETURN
came to band on the _2='...,.C~ day ot _ ___.4u,:.«::-.:../.:../______, 2o.l!:f_,
by delivering to the within named
in my custody, in person, a
certified copy of the indictment mentioned within, and delivered to me with
this writ, on the 1.( day of --'~J,i'l'(';FII..:I:..r.•t_ _ _ __
,,_
Returned on the ---~~~-- day of , - - - • 20..1!L.
-_.64~•1UC.:a~:J._·
L , R-4'{. Sheriff,
_.-;V.c~.W~DL..4o!,..>!C.IIII#.J..,-,;;.L._·- - - - county, Texas •
BY_ ~:#=-:'fn:;.r....l-----
___,_/tuc:u;Jw.,_.·
RECORD 146
Filed 8/14/2015 6:41:45 PM
Karen L. Wilson
District Clerk
Van Zan