202418495 –
U S BANK TRUST NATIONAL ASSOCIATION vs. BONEY, JEW DON
MAR 22, 2024 | REPUBLISHED BY LIT: MAR 23, 2024
MAR 23, 2024
Above is the date LIT Last updated and/or visited this article.
The Circle of Legal Bandits n Straw Men Entities we’ve highlighted include;
Christian Consultants of Texas (CCTX); Epiphany Properties LLC; ZP-1 Investments LLC, My Fresh Start LLC; My Foreclosure Hero (Vihn Truong); Momentum Title (Brian Brewer); Millennia Properties (Pasquale) pic.twitter.com/VjrakRwsEz— lawsinusa (@lawsinusa) March 22, 2024
LIT COMMENTARY
TO THE HONORABLE JUDGE JERALYNN MANOR:
COMES NOW, Defendant US Bank National Association as Trustee for the C Bass Mortgage Loan Asset Backed Certificates 2005 CB5 (“U.S. Bank”), and files this Original Answer to Cross-Plaintiff Mikaela Investments LLC’s (“Cross-Plaintiff/Mikaela”) Original Cross-Claim, and would respectfully show the Court the following:
I. GENERAL DENIAL
1. Pursuant to RULE 92, TEXAS RULE OF CIVIL PROCEDURE, U.S. Bank hereby generally denies each and every allegation contained in the Petition and demands strict proof thereof to the extent there is any claim asserted therein.
II. AFFIRMATIVE DEFENSES
2. Without waiving the general denial set forth above, and without waiving or excusing Cross-Plaintiff’s burden of proof or admitting that any of the following are defenses upon which U.S. Bank has any burden of proof (as opposed to denials of matters to which Cross-Plaintiff
has the burden of proof), or that U.S. Bank has any burden of proof at all, U.S. Bank hereby asserts the following affirmative defenses:
3. Cross-Plaintiff’s claims are barred, in whole or in part, because Cross-Plaintiff took title to the property that is at issue in this action (the “Property”) subject to all matters of record affecting the Property.
4. In addition to and/or alternatively, without waiving the foregoing, Cross-Plaintiff’s claims are barred, in whole or in part, because there is no warranty of title contained in the Substitute Trustee’s Deed through which Cross-Plaintiff acquired its interest in the Property.
5. In addition to and/or alternatively, without waiving the foregoing, Cross-Plaintiff’s claims are barred, in whole or in part, because Cross-Plaintiff acquired the Property “as is” without any expressed or implied warranties, and at its own risk.
6. In addition to and/or alternatively, without waiving the foregoing, Cross-Plaintiff’s claims are barred, in whole or in part, because, under Texas law, no warranty of title runs from a lender or trustee to the purchaser at a foreclosure sale.
7. In addition to and/or alternatively, without waiving the foregoing, Cross-Plaintiff’s claims are barred, in whole or in part, because a foreclosure sale transfers legal title from the owner of the mortgaged property to the purchaser at the foreclosure sale, and so, to the extent Cross- Plaintiff can show a warranty of title is contained in the Substitute Trustee’s Deed, the warranty does not bind U.S. Bank, but instead binds only the former owner, J. Don Boney.
8. In addition to and/or alternatively, without waiving the foregoing, Cross-Plaintiff’s claims are barred, in whole or in part, because to the extent the sale is set aside for any reason, Cross-Plaintiff is entitled only to a return of the funds paid. Cross-Plaintiff has no further recourse against U.S. Bank.
9. In addition to and/or alternatively, without waiving the foregoing, Cross-Plaintiff’s claims are barred, in whole or in part, because Cross-Plaintiff is unable to prove its alleged losses, damages, and/or injuries in accordance with Texas or other applicable law.
10. In addition to and/or alternatively, without waiving the foregoing, Cross-Plaintiff failed to mitigate its damages.
11. In addition to and/or alternatively, without waiving the foregoing, Cross-Plaintiff’s claims for fraud are barred because Cross-Plaintiff’s own acts or omissions caused Plaintiff’s injuries or damages.
12. U.S. Bank reserves the right to assert additional affirmative defenses that may be discovered during the course of additional investigation and discovery.
Respectfully submitted,
Fidelity National Law Group
/s/ Margaret J. Phe
Margaret J. Phe
Texas Bar No. 24129034
(972) 812-6541 Direct
Margaret.phe@fnf.com
Gregory Brewer
Texas Bar No. 00792370
Gregory.Brewer@fnf.com
(972) 812-6439 Direct
Fidelity National Law Group
Legacy Town Center II
6900 Dallas Parkway, Suite 610
Plano, Texas 75024
(972) 812-9408 Facsimile
ATTORNEYS FOR DEFENDANT U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE C-BASS MORTGAGE LOAN ASSET- BACKED CERTIFICATES, SERIES 2005-CB5
Breaking down the statement by Margaret Phe for US Bank;
This passage appears to be part of a legal argument, likely related to a dispute involving a foreclosure sale and the transfer of property title. Let’s break it down:
“In addition to and/or alternatively, without waiving the foregoing”: This phrase indicates that the argument being made is presented in addition to other arguments previously mentioned or in the alternative (as an alternative argument), and it does not waive any previous arguments made by the Cross-Plaintiff.
“Cross-Plaintiff’s claims are barred, in whole or in part, because a foreclosure sale transfers legal title from the owner of the mortgaged property to the purchaser at the foreclosure sale”:
This part suggests that the Cross-Plaintiff’s claims are being challenged because, in the case of a foreclosure sale, legal title to the property is transferred from the owner (who defaulted on the mortgage) to the purchaser (who bought the property at the foreclosure sale).
“To the extent Cross-Plaintiff can show a warranty of title is contained in the Substitute Trustee’s Deed, the warranty does not bind U.S. Bank, but instead binds only the former owner, J. Don Boney”:
Here, it’s argued that if the Cross-Plaintiff (the party bringing the counterclaim) can demonstrate that there is a warranty of title included in the Substitute Trustee’s Deed (a document typically issued after a foreclosure sale), this warranty doesn’t apply to U.S. Bank.
Instead, it only binds the former owner, J. Don Boney. This suggests that any warranty regarding the title of the property would have been made by the previous owner (J. Don Boney) and not by U.S. Bank.
In essence, this argument aims to challenge the validity of any warranty of title that might be claimed by the Cross-Plaintiff by asserting that such warranty, if it exists, is not enforceable against U.S. Bank but only against the former owner who lost the property through foreclosure.
JOINT NOTICE OF NONSUIT BY THIRD-PARTY PLAINTIFF MIKAELA INVESTMENTS LLC AND THIRD-PARTY DEFENDANT AVT TITLE SERVICES, LLC (Mark Cronenwett for the Wolves of Texas and AVT Title Services, LLC)
THIRD PARTY DEFENDANT AVT TITLE SERVICES, LLC’S ORIGINAL ANSWER AND VERIFIED DENIAL
Third Party Defendant AVT Title Services, LLC, Substitute Trustee (“AVT”) files this its Original Answer and Verified Denial and shows the Court as follows:
I. GENERAL DENIAL
1. Pursuant to Rule 92 of the Texas Rules of Civil Procedure, AVT generally denies each and every allegation contained in Defendant Mikaela Investments, LLC’s Original Third Party Petition (“Third Party Petition”), and any amendments or supplements thereto, and demands strict proof thereof.
II. VERIFIED DENIAL
2. AVT is not a necessary party to this cause of action by reason of its reasonable belief that it was named as a party solely in its capacity as a substitute trustee under a Deed of Trust as contemplated by Section 51.007 of the Texas Property Code. Third-Party Plaintiff Mikaela Investments, LLC (“Mikaela Investments”) in its Original Third-Party Petition demonstrates that all of its claims against AVT relate to AVT’s alleged actions taken as a substitute trustee. (See Third-Party Petition). In particular, Mikaela Investments claims that AVT sold off real property at a foreclosure sale for which the mortgage lender1, which had directed AVT to perform this sale, did not have a valid security interest in the entire property. For these allegations, Mikaela Investments brings a claim for breach of contract and for fraud in a real estate transaction. For breach of contract, Mikaela Investments claims it has a contract with AVT whereby AVT must provide it was a foreclosure sale deed. For fraud in a real estate transaction, Mikaela Investments claims that AVT committed fraud by misrepresenting the ownership of the real property Mikaela Investments bought at the subject foreclosure sale. All of these claims concern AVT’s alleged actions as a substitute trustee, for which it has immunity under Section 51.007 of the Texas Property Code.
III. AFFIRMATIVE DEFENSES
Defendant asserts the following affirmative defenses:
3. AVT’s conduct or activity conformed at all times to any and all applicable state and federal statutes, codes, and regulations.
4. Any allegedly wrongful acts or omissions of AVT, if and to the extent such acts and omissions occurred, were legally excused or justified.
1 Identified by Mikaela Investments as “U.S. Bank National Association as Trustee for the C Bass Mortgage Loan Asset Backed Certificates Series 2005 CB5”. See Third-Party Petition.
5. AVT relied in good faith on the information provided to its by U.S. Bank National Association as Trustee for the C Bass Mortgage Loan Asset Backed Certificates Series 2005 CB5, or its agents or representatives, in performing its services as a substitute trustee and therefore is immune from liability under Section 51.007(f) of the Texas Property Code.
6. AVT is not liable for the acts, omissions, or conduct of other persons or entities not authorized to act on behalf of it; pleading further, and in the alternative, AVT is not liable for the acts, omissions, or conduct of its agents who exceeded the scope of their authority.
7. AVT had no contract with Mikaela Investments. AVT, as a substitute trustee, acted as the designee of the borrower on that Deed of Trust, J. Don Boney, Jr., to sell the subject real property in the event of a default on the subject mortgage loan. J. Don Boney, Jr., is identified on this Deed of Trust and was thus a known principal.
8. Mikaela Investment’s claim for breach of contract is moot as an executed foreclosure sale deed has been sent to its counsel.
9. AVT’s actions and omissions were undertaken in good faith, with the absence of malicious intent to injure Mikaela Investments, and constitute lawful, proper and justified means to further the business purposes of AVT. Any purported conduct of individuals who were or are agents of AVT were privileged, and those individuals were and are justified in engaging in the conduct attributed to them. AVT pleads all statutory and common law privileges that may apply to its conduct and those of its agents.
10. Mikaela Investments bought the subject property “as is” and at its own peril and thus waived any supposed reliance on any alleged representations by AVT. See Diversified, Inc. v. Walker, 702 S.W.2d 724 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.).
11. AVT seeks its attorney’s fees as provided by Section 22.006(e) of the Texas Business and Commerce Code.
12. Mikaela Investments’ damages, if any, were proximately caused by the acts, omissions, or breaches of other persons and entities, including Mikaela Investments, and said acts, omissions, or breaches were intervening and superseding causes of Mikaela Investment’s damages, if any. AVT asserts its right to comparative responsibility as provided in Chapter 33 of the Texas Civil Practice and Remedies Code and requests that the fact finder apportion responsibility as provided in Chapter 33.
13. Mikaela Investments damages, if any, were proximately caused by the acts, omissions, or breaches of other persons and entities, including Mikaela Investment’s, and the acts, omissions, or breaches were intervening and superseding causes of Mikaela Investment’s damages, if any.
14. Mikaela Investments is not entitled to punitive or multiple damages, and any and all excessive amounts of such damages sought herein violate Chapter 41 of the Texas Civil Practice and Remedies Code, the Texas Constitution and the United States Constitution, all of which set limits on the award of punitive damages. AVT hereby invokes the caps on damages as provided in Chapter 41 of the Texas Civil Practice and Remedies Code, the Texas Constitution and the United States Constitution.
15. Some or all of Mikaela Investments’ claims are barred by the economic loss rule.
16. Some or all of Mikaela Investments’ claims are barred, in whole or in part, by the “one satisfaction” doctrine.
17. Mikaela Investments has failed to state a claim upon which relief may be granted.
WHEREFORE, PREMISES CONSIDERED, Third Party Defendant AVT Title Services, LLC prays that Thid Party Plaintiff Mikaela Investments, LLC take nothing on its claims; it recover its attorneys’ fees and costs; it be dismissed from this case, and the Court award such other and further relief to which it may be justly entitled at law or in equity.
JUDGE SHOPPING
Defendant Hon. Susan Brown Allowed to Hand-Pick her own Judge, Former Court 269 Harris County District Judge Dan Hinde to represent herself and @Harvard_Law graduate and Harris County District Judge Lauren Reeder. The result was obvious. https://t.co/jSjvCSSqeP pic.twitter.com/YrqNjVmjWr— lawsinusa (@lawsinusa) October 12, 2023
202280750 –
ANDERSON, JONATHAN vs. BONEY, J DON
(Court 080, JUDGE MANOR)
MAR 6, 2023 | REPUBLISHED BY LIT: MAY 11, 2023
MAY 11, DEC 15, 2023
Above is the date LIT Last updated and/or visited this article.
ORDER SIGNED GRANTING TRIAL CONTINUANCE
Why did it take so long for US Bank’s counsel to present this answer – after appearing in Jan. 2023?
Mikaela Investments LLC’s Certificate of Written Discovery
ORDER SIGNED GRANTING LEAVE TO DESIGNATE RESPONSIBLE 3RD PARTY
Mikaela Investments, LLC Unopposed Motion for Leave to Join AVT Title Services, LLC as a Third Party Defendant
Jew Don Boney, Jr. was born in 1951 in Temple.
His first experience with segregation was when his mother was initally denied entry into Scott and White Hospital when she went into labor with Boney.
His parents were educators and his father wrote a dissertation on the racial biases in standarized testing while pursuing a doctorate in Educational Psychology at the University of Illinois at Urbana-Champaign.
Boney relocated to Austin in 1966 and attended the University of Texas at Austin in the Fall of 1969.
He became involved in Black-Brown student activism at this time.
After spending a few years in radio and TV, Boney worked for the Urban League and became the Chairman of the National Black United Front Chapter in Houston.
He later served as a city councilman for District D and a Mayor Pro Tem.
Boney dedicated three years to the Free Clarence Bradley Campaign in order to exonerate a man falsely accused of the rape and murder of a white woman in Conroe, spent time bridging African and U.S. relations, advanced economic initiatives in Africa, and secured grants to process the Mickey Leland Papers at Texas Southern University while he served as the Associate Director for the Mickey Leland Center.
He talks about stark instances of discrimination, how Black and Brown students forged coalitions based on mutual interests at UT, the desegregation of the Houston Independent School District and how it affected students of color, learning leadership skills through the Texas Metropolitian Organization, the National Black Independent Political Party, how Mickey Leland forged Black and Brown relations, and his participation in the anti-apartheid movement in South Africa.
Boney also discusses the process of making the Free Clarence Lee Bradley an international campaign, the role of the National Black United Front, how he sought to create leaders through the Mickey Leland Center at TSU, and his latest work in documenting the Black Power struggle and connecting it to present-day struggles through the Black Power Chronicles Project.
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