No movement since May 3 Summary Judgment motion.
By consenting to the MJ, he can cancel the conference, with notice, and not do anything about rescheduling it – and it is not seen to be Judge Jeff Brown. This also takes the heat off of the Rogues from BDF Hopkins, Bandit Lawyer Clay Vilt. https://t.co/Nl75A3NpRx #Ochlocracy
— lawsinusa (@lawsinusa) October 10, 2022
Plaintiff’s Motion For Partial Summary Judgement
A. Summary of Argument/Facts
Defendant First American National, LLC foreclosed on a second lien on Plaintiff’s (“Plaintiff” or “Conley”) homestead in July 2021. It is undisputed that in December 2001, Plaintiff took a second mortgage on her homestead with First Franklin Financial Corporation for $22,900.00 at 13.625% interest for 15 years.
It is also undisputed that Defendant First American National, LLC has not produced any written assignment, executed or otherwise, from First Franklin Financial Corporation assigning its rights under the deed of trust that would allow or give Defendant standing to foreclose Plaintiff’s property.
Instead, Defendant relies on an Affidavit of Missing Assignment (“PHH Missing Assignment Affidavit”) filed on April 6, 2021 by PHH Mortgage Corporation, an unrelated third party
Plaintiff moves for a partial summary judgment on her request for a declaratory judgment that
(1) Defendant First American National, LLC had no authority to foreclose on Plaintiff’s property;
(2) Defendant First American National, LLC’s assertion that the PHH Missing Assignment is somehow the assignment agreement violates the statute of frauds.
A. Defendant has no authority to foreclose because there is no assignment of the deed of trust.
“Because a power of sale under a deed of trust is a harsh method of collecting debts and of disposing of another’s property, it can only be exercised by strict compliance with the note and conditions of sale.”
Bonilla v. Roberson, 918 S.W.2d 17, 21 (Tex. App.—Corpus Christi 1996, no writ) (emphasis added).
In this case, Defendant admits that it is not a mortgagee or grantee that would give it the authority under Texas Property Cide 51.002 to effectuate a foreclosure sale under the deed of trust.
Instead, in an affidavit of its corporate representative, Defendant claims an assignment interest in the subject deed of trust as follows:
Defendant solely relies on the PHH Missing Assignment affidavit to be the beneficiary entitled to enforce the deed of trust.
However, the PHH Missing Assignment Affidavit does not convey any interests from Franklin Financial Corporation to Defendant. Under Texas law, “[a]n assignment is the act by which one transfers to another, or causes to vest in another, his right of property”.
Highland Park State Bank v. Salazar, 555 S.W.2d 484, 487 (Tex.Civ.App.1977).
An assignment is construed to have been made when the owner of a right manifests its intention to transfer the right to an assignee; an assignment is the act by which a transfer is effected.
Miller v. Bank of the West, No. 01–88–00195–CV, 1988 WL 88320, at *2 (Tex.App.-Houston [1st Dist.] Aug. 25, 1988, no writ) (not designated for publication).
Crucially, the manifestation of an assignment must convey the present intent of the owner to transfer his rights to another.
See Commercial Structures & Interiors, Inc. v. Liberty Educ. Ministries, Inc., 192 S.W.3d 827, 833 (Tex. App.—Fort Worth 2006, no pet.).
Defendant’s reliance on the PHH Missing Assignment Affidavit is misplaced because its does not contain any language indicating that First Franklin Financial Corporation intended to convey its rights to under the deed of trust to Defendant.
The PHH Missing Assignment Affidavit does not identify when an assignment occurred, who executed an assignment, the consideration for any assignment, and other essential terms that one would find in an actual written assignment.
First Franklin Financial Corporation could not have intended to convey its rights under the deed of trust because there is no written assignment regarding same1.
B. Alternatively, Defendant cannot rely on the PHH Missing Assignment Affidavit because it violates the statute of frauds.
A conveyance of an interest in real property is subject to the statute of frauds.
See Republic Nat’l Bank of Dallas v. Stetson, 390 S.W.2d 257, 261 (Tex. 1965).
In this case, the PHH Missing Assignment Affidavit cannot be a valid assignment for sole reason that First Franklin Financial Corporation never signed it.
As this Court is well aware “[a] promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
(1) in writing;
(2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.”
(Tex. Bus. Com. Code 26.01).
C. Plaintiff’s Request for Declaratory Judgment
The Texas Property Code sets conditions for “a sale of real property under a power of sale conferred by a deed of trust or other contract lien.”
Tex. Prop. Code Ann. § 51.002(a) (West Supp. 2021).
The Code further defines a “mortgagee” who is authorized to foreclose to include the “grantee” or “beneficiary” of a “security instrument” or as “the last person to whom the security interest has been assigned of record.”
Id. § 51.0001(4). TEX. PROP. CODE ANN. § 51.0001(4);
Allan v. Nationstar Mortgage, LLC, No. 14-18-00246-CV, 2019 WL 2939746, at *3 (Tex. App.—Houston [14th Dist.] July 9, 2019, pet. denied).
In this case, Defendant has not and cannot produce any executed assignment or transfer of the deed trust from the original beneficiary, FIRST FRANKLIN FINANCIAL CORPORATION.
Instead, Defendant mistakenly relies on the Affidavit of Missing Assignment filed by PHH MORTGAGE CORPORATION that is not a valid assignment and violates the statute of frauds.
Defendant took the extraordinary self help by conducting a nonjudicial foreclosure on Plaintiff’s homestead without even verifying the chain of title.
Plaintiff would respectfully request this Court to declare that Defendant had no standing, authority, or power to foreclose on Plaintiff’s home on July 6, 2021 and to set aside and void the substitute trustee’s sale and subsequent deed (RP-2021-418422) and other just and equitable relief the Court deems proper.
ATTORNEY AT LAW
State Bar no. 24014483
6711 Stella Link, #343
West University Place,
Telephone: (832) 287-2129
Telecopies: (832) 217-3227
We want to know why this case is not proceeding with Judge Hanen @uscourts ?
— lawsinusa (@lawsinusa) May 1, 2022
DEFENDANT FIRST AMERICAN NATIONAL, LLC’S ORIGINAL ANSWER WITH AFFIRMATIVE DEFENSES
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, First American National, LLC (“Defendant”), Defendant in the above- styled and numbered cause, and files this Original Answer and Affirmative Defenses in response to Plaintiff Byronica Conley’s (“Plaintiff”) Original Petition (“Petition”).
In support of the foregoing, Defendant First American National, LLC would respectfully show the Court the following:
I. GENERAL DENIAL
1 Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendant generally denies each and every allegation contained within Plaintiff’s Petition and any amendments thereto and demands strict proof thereof as required by the Constitution and the laws of the State of Defendant further reserves the right to plead further and in greater particularity as the case progresses.
II. AFFIRMATIVE DEFENSES
2 Defendant asserts that all conditions precedent to Plaintiff’s rights to recover, if any, have not been satisfied, have not occurred or have not been waived.
3 In addition to and/or alternatively, without waiving the foregoing, Plaintiff’s claims are barred by unclean hands.
4 In addition to and/or alternatively, without waiving the foregoing, Plaintiff’s damages, if any, which Defendant does not admit, were caused in whole or in part by Plaintiff’s own acts, negligent or otherwise, and Defendant is thus not liable.
5 In addition to and/or alternatively, without waiving the foregoing, Plaintiff’s claims are barred due to Defendant’s compliance with the terms of the Deed of Trust and the Texas Property Code.
6 In addition to and/or alternatively, without waiving the foregoing, Defendant would assert any and all limitations on exemplary damages, additional damages and/or punitive damages prescribed by the Texas Rules of Civil Procedure and/or case law and/or Civil Practice and Remedies Code.
7 In addition to and/or alternatively, without waiving the foregoing, Plaintiff fails to state a claim upon which relief can be granted.
WHEREFORE, PREMISES CONSIDERED, Defendant First American National, LLC prays that Plaintiff’s Petition be dismissed and that Plaintiff takes nothing by way of her claims.
Defendant further requests that judgment be granted in its favor with respect to all claims asserted by Plaintiff, and for all further and other relief, whether at law or in equity, to which Defendant First American National, LLC may be justly entitled.
By: /s/ Shelley L. Hopkins
Shelley L. Hopkins
State Bar No. 24036497
Robert D. Forster, II
State Bar No. 24048470
Crystal G. Gibson
State Bar No. 24027322
ATTORNEYS FOR DEFENDANT
FIRST AMERICAN NATIONAL, LLC
CERTIFICATE OF SERVICE
Pursuant to Texas Rules of Civil Procedure, I certify that a true and correct copy of the foregoing has been sent on this the 29th day of December 2021 to all parties of record the method indicated below.
Attorney At Law
6711 Stella Link, #343
Houston, Texas 77005
ATTORNEY FOR PLAINTIFF
/s/ Shelley L. Hopkins
Shelley L. Hopkins
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Shelley Hopkins on behalf of Shelley Hopkins
Bar No. 24036497
Envelope ID: 60371367
Status as of 12/29/2021 2:20 PM CST
|Shelley LHopkins||ShelleyH@bdfgroup.com||12/29/2021 1:49:51 PM||SENT|
|Kate Barry||Kate@hopkinslawtexas.com||12/29/2021 1:49:51 PM||SENT|
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