Dickey and Sharon Couch Battle The Catholic Bandit in High-Stakes Eviction Case Before Judge Reed O’Connor

Couch v. The Bank of New York Mellon

(4:24-cv-00085)

District Court, N.D. Texas

JAN 25, 2024 | REPUBLISHED BY LIT: MAR 7, 2024

FINDINGS OF FACT & CONCLUSIONS OF LAW

MAR 5, 2024 | REPUBLISHED BY LIT: MAR 7, 2024

Attention all 2008 financial crisis homeowners battling predatory lenders and Wall St for your homes: Don’t miss Joanna Burke’s petition from Kingwood, Texas, citing 5th Circuit binding law. It’s a crucial read for securing peaceful possession of your homestead. #FightForYourHome pic.twitter.com/n6h7YCrdHZ

— lawsinusa (@lawsinusa) March 6, 2024

DEFENDANT’S SUPPLEMENTAL BRIEF IN COMPLIANCE
WITH COURT’S ORDER AT ECF NO. 19

MAR 1, 2024 | REPUBLISHED BY LIT: MAR 7, 2024

Defendant The Bank of New York Mellon, f/k/a The Bank of New York, as Trustee for NovaStar Mortgage Funding Trust, Series 2005-4 NovaStar Home Equity Loan, Asset-Backed Certificates, Series 2005-4 (“Defendant” or “BNYM”) files this its Supplemental Brief in Compliance with Court’s Order at ECF No. 19 and respectfully shows the Court as follows:

I.                   BACKGROUND

1.                  This action relates to the judicial foreclosure of real property commonly known as 9845 Ray White Road, Keller, Texas 76248 (the “Property”).

(ECF No. 1, Exhibit E-2 at ¶¶ 3.1- 4.11.)

Plaintiffs Sharon and Dickey Couch (“Plaintiffs” or the “Couches”) challenge Defendant’s foreclosure and purchase of the Property and bring a quiet title claim.

(Id. at ¶¶ 5.1-5.11.)

2.                  Plaintiffs argue that they are the rightful title owners of the Property based on adverse possession.

This argument fails as a matter of law because the doctrine of adverse possession does not apply to lienholders, such as the Defendant.

Further, Defendant became the title owner only seven months ago, following a judicial foreclosure sale.

Therefore, there it is impossible that Plaintiffs could comply with any of the adverse possession thresholds.

Plaintiffs’ claims must be dismissed.

3.                  On March 8, 2021, Judge John McBryde entered an Amended Final Judgment allowing BNYM to proceed with judicial foreclosure of the Property.

(ECF No. 5, Exhibit W, Appx. at p. 480.)

4.                  Following the domestication of Judge McBryde’s Amended Final Judgment, a Constable’s Sale of the Property took place on August 1, 2023.

BNYM acquired title to the Property at the Constable’s sale.

(ECF No. 5, Exhibit X, Appx. at p.485.)

5.                  On October 9, 2023, BNYM filed suit to evict Plaintiffs from the Property in Justice Court No. 3, Cause No., JP03-23-E00072506 and obtained a Judgment of possession in favor of BNYM.

(ECF No. 5, Exhibit Y, Appx. at p. 488.)

6.                  On October 25, 2023, Plaintiffs filed an appeal to County Court at Law No. 1 of Tarrant County, Texas under Cause No. 2023-007641-1.

On January 23, 2024, County Court at Law No. 1 entered a Judgment of possession in favor of BNYM.

(ECF No. 5, Exhibit Z, Appx. at p.490)

7.                  On January 22, 2024, Plaintiffs filed this action against Defendant in the County Court at Law No. 1 of Tarrant County, Texas, as Cause No. 2024-000558-1 in the matter styled Sharon Couch and Dickey Couch v. The Bank of New York Mellon, f/k/a the Bank of New York as Successor in Interest to JPMorgan Chase Bank, N.A. as Trustee for NovaStar Mortgage Funding Trust, Series 2005-4, NovaStar Home Equity Loan Asset-Backed Certificates, Series 2005-4 (the “State Court Action”).

Defendant removed the State Court Action to this Court on January 25, 2024.

(ECF No. 1.)

8.                  Plaintiffs challenge in their Petition Defendant’s right to foreclose and its purchase of the Property.

(ECF No. 1, E-2, Petition at ⁋ 5.4.).

Plaintiffs claim that Defendant failed to initiate a foreclosure sale on the Property “before the applicable limitations period,” and in the alternative, that Defendant’s claim is “invalid or unenforceable because Defendant’s claim of title is barred by adverse possession.”

(Id. at ⁋⁋ 5.5-5.6.)

Based on these allegations, Plaintiffs bring a quiet title claim.

(Id. at ¶¶ 5.1-5.11.)

9.                  On February 1, 2024, Defendant filed its Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) arguing that Plaintiffs’ claims were all barred by res judicata.

(ECF No. 6.)

Also on February 1, 2023, Plaintiffs file a Brief in Support of Motion for Temporary Restraining order requesting this Court restrain Defendant from evicting Plaintiffs and selling the Property to a third party.

(ECF No. 4.)

10.              On February 28, 2024, this Court entered a Memorandum Opinion & Order granting in part and denying in part Defendant’s Motion to Dismiss.

(ECF No. 19.)

The Court dismissed with prejudice Plaintiffs’ quiet title claim based on statute of limitations as barred by res judicata.

Id.

The Court denied Defendant’s Motion to Dismiss based on Plaintiffs’ alternative argument that they may they have acquired title to the Property though adverse possession.

Id.

11.              Further, the Court’s Order granted Plaintiffs’ Motion for Temporary Restraining order and requested supplemental briefing on the Plaintiffs’ remaining quiet title claim as to the alleged adverse possession in preparation for the Temporary Injunction hearing on March 5, 2024.

(ECF No. 19.)

II.                SUPPLEMENTAL BRIEF

B.        Plaintiffs’ Request for a Temporary Injunction fails.

12.              “To obtain a temporary injunction, the applicant must plead and prove three elements:

“(1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim.”

EXFO Am. Inc. v. Herman, No. 4:12-CV-201, 2012 U.S. Dist. LEXIS 65706, at *3 (E.D. Tex. May 10, 2012) (citing Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)).

13.              Plaintiffs have not shown a probable right to the relief sought.

Plaintiffs’ sole claim is for quiet title based on the doctrine of adverse possession.

Plaintiffs argue in their Petition that they have acquired title to the Property based on the doctrine of adverse possession.

(ECF No. 1, E-2, Petition at ⁋ 5.6.)

To support this contention, Plaintiffs argue that their adverse possession claim accrued the day the foreclosure judgment was entered in 2015.

(ECF No. 1, E-2, Petition at ⁋ 5.9.)

14.              Plaintiffs restate this contention in their Supplemental Brief filed this day .

(ECF No. 20, pp.2-3, ¶2.4.)

Plaintiffs, however, cite to no legal authorities in support of this proposition because this is simply an erroneous statement of the law.

(Id.)

15.              Plaintiffs’ quiet title claim fails as the statute of limitations for their quiet title claim did not begin until Defendant acquired title to the Property through the judicial foreclosure sale on August 1, 2023.

Further, Plaintiffs’ claim fails as they have not met the minimum three-year period to adversely possess the Property.

16.              “The law is well-settled in Texas that, for adverse possession purposes, the statute of limitations does not run against the mortgagee out of possession and in favor of an adverse claimant  until  the  mortgagee  acquires  title  to  land  at  the  foreclosure  sale.”

Tex. Capital Bank, N.A. v. Hoppe, No. 14-98-00621-CV, 2000 Tex. App. LEXIS 5331, at *2 (Tex. App.—Houston [14th Dist.] 2000, pet. denied)

(citing Warnecke v. Broad, 138 Tex. 631, 161 S.W.2d 453 (1942)).

17.              “Under sections 16.024 through 16.026 of the Texas Civil Practices & Remedies Code, a party must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title within three, five, or ten years of the date the cause of action accrues.”

Coates Energy Tr. v. Frost Nat’l Bank, No. 04-11-00838-CV, 2012 Tex. App. LEXIS 9718, at *23 (Tex. App.—San Antonio November 28, 2012, pet denied)

(citing to Tex. Civ. Prac. & Rem. Code §§ 16.024 (three years), 16.025 (five years), 16.026 (ten years)).

18.              In this case, Defendant did not acquire title to the Property until the judicial foreclosure sale occurred on August 1, 2023.

Tex. Capital Bank, N.A. v. Hoppe, No. 14-98-00621- CV, 2000 Tex. App. LEXIS 5331, at *2 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).

Therefore, the statute of limitations for Plaintiffs’ adverse possession claim did not begin until August 1, 2023.

19.              To be considered adverse possessors under the Texas Civil Practice and Remedies Code § 16.024, Plaintiffs would be required to have hostile possession for a minimum of three years, among other requirements.

Up until August 1, 2023, Plaintiffs were the rightful title owners of the Property; therefore, their ownership was not hostile and their adverse possession claims fails.

20.              Following the judicial foreclosure sale on August 1, 2023, Defendant has only owned the Property for seven months.

Therefore, it is impossible that Plaintiffs have adversely possessed the property for three years, the minimum threshold under Section 16.024 of the Texas Civil Practice and Remedies Code to be considered adverse possessors.

Accordingly, Plaintiffs’ claim for quiet title fails as a matter of law and they are not entitled to injunctive relief.

B.        The Court lacks jurisdiction to interfere with the Final Judgment entered in the eviction proceedings.

21.              Under the Rooker-Feldman doctrine, “federal district courts lack jurisdiction to entertain collateral attacks on state court judgments, such as where the losing party in a state court action seeks what in substance would be appellate review of the state judgment.”

Weaver v. Tex. Cap. Bank N.A., 660 F.3d 900, 904 (5th Cir. 2011).

22.              Prior to the filing of the Current Action, on October 9, 2023, BNYM filed suit to evict Plaintiffs from the Property in Justice Court No. 3, Cause No. JP03-23-E00072506 and obtained a Judgment of possession in favor of BNYM.

(ECF No. 7, Exhibit Y, Appx at p.488.)

Subsequently, on October 25, 2023, Plaintiffs filed an appeal to County Court at Law No. 1 of Tarrant County, Texas under Cause No. 2023-007641-1.

On January 23, 2024, County Court at Law No. 1 entered a Judgment of possession in favor of BNYM.

(ECF No. 7, Exhibit Z, Appx at p. 490.)

The state court stated that after considering the testimony and evidence, BNYM was entitled to judgment.

The state court ordered that BNYM shall have judgment for possession of the Property.

(Id.)

23.              Plaintiffs’ request for preliminary injunction must be denied because this Court lacks jurisdiction to intervene in any state court forcible detainer action.

Knoles v. Wells Fargo Bank, N.A., 513 Fed. App’x 414, 416, 2013 WL 617010, 2 (5th Cir. 2013).

The Rooker-Feldman doctrine bars cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the federal district court proceedings commenced and inviting district court review and rejection of those judgments.

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005).

When a litigant loses in state court, they are barred from subsequently bringing that same claim in federal court.

(Id.)

24.              The Rooker-Feldman doctrine bars the review of state court eviction proceedings.

Sherman v. Johnson, No. 22-30693, 2023 U.S. App. LEXIS 18821 at *1 (5th Cir. 2023).

Here, a Final Judgment of possession was entered in favor of BNYM by the state court.

(ECF No. 7, Exhibit Z, Appx at p. 490.)

Plaintiffs now seek a preliminary injunction from this Court enjoining Defendant from evicting Plaintiff and from selling the Property.

A preliminary injunction against Defendant restraining it from evicting Plaintiffs would be a direct bar to their eviction pursuant to the Judgment entered by the County Court at Law No. 1, Tarrant County, Texas and is barred under the Rooker-Feldman doctrine.

Price v. Porter, 351 F. App’x 925, 926 (5th Cir. 2009).

25.              It is evident that Plaintiffs are directly attacking the state court judgment entered in the eviction proceedings and their underlying claims herein are inextricable intertwined with the state court judgment of possession.

The Rooker-Feldman doctrine precludes this Court from interfering with a state court proceeding and the Court has no authority to grant the injunctive relief requested.

Chamberlain v. 625 Orleans, LP, No. 1:11-CV-140, 2011 U.S. Dist. LEXIS 45876 at *11 (E.D. Tex. Apr. 18, 2011);

see also Bradley v. PNC Bank, N.A., No. 4:14CV37, 2014 U.S. Dist. LEXIS 136649, at *16 (E.D. Tex. Sep. 26, 2014)

(denying plaintiff’s request for injunctive relief to restrain eviction since the court lacked authority to exercise subject-matter jurisdiction over a collateral attack on a state court judgment).

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests that the Court deny Plaintiffs’ request for preliminary injunction and grant it all other relief to which it is entitled.

Respectfully submitted,

By:   /s/ Mark D. Cronenwett

MARK D. CRONENWETT
Texas Bar No. 00787303 mcronenwett@mwzmlaw.com

MACKIE WOLF ZIENTZ & MANN, P. C.
14160 North Dallas Parkway, Suite 900
Dallas, TX 75254
Telephone: (214) 635-2650
Facsimile: (214) 635-2686

Attorneys for Defendant

CERTIFICATE OF SERVICE
I hereby certify that on March 1, 2024, a true and correct copy of the foregoing was served via ECF service on the following:

Debra Edmondson
P.O. Box 92801
325 Miron Dr., Ste. 100
Southlake, Texas 76092

Attorneys for Plaintiffs

/s/ Mark D. Cronenwett
MARK D. CRONENWETT

HOMEOWNERS NATIONWIDE: READ THIS
Joanna’s possession ripened its claim into “full title precluding all claims,” it established her as the true and lawful owner and rightful possessor of the land, from the beginning. It entitles Joanna to judgment for the title and possession. pic.twitter.com/ozzsJHGKRE

— lawsinusa (@lawsinusa) March 6, 2024

PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

MAR 1, 2024 | REPUBLISHED BY LIT: MAR 7, 2024

Plaintiffs Dickey Couch and Roland Couch (“Plaintiffs” or the “Couches,” collectively) respectfully submit this supplement brief in support of our request for preliminary injunction with additional information regarding the claim for adverse possession.

I.          INTRODUCTION

1.1              The Plaintiffs are Dickey Roland Couch and Sharon Gale Couch (“The Couches” or “Plaintiffs,” hereinafter).

1.2              The Defendant is The Bank of New York Mellon f/k/a The Bank of New York, as trustee for Novastar Mortgage Funding Trust, Series 2005-4 Novastar Home Equity Loan Asset-Backed Certificates, Series 2005-4 (“BONYM” or “Defendant”, hereinafter).

1.3              Plaintiffs allege that Defendant has no claim to the property at 9845 Ray White Rd, Keller, Texas 76248, in Tarrant County (the “Property”) because Defendant failed to exercise its power of sale before the applicable limitations period of four (4) years required by Tex. Civ. Prac & Rem. Code passed and also because Plaintiffs have a claim of adverse possession.

1.4              On January 31, 2024, Plaintiffs learned there is a pending sale on the Property pursuant to the listing of the Property on www.Hubzu.com.

1.5              Plaintiffs ask the Court to take judicial notice of the Appendix in Support of Plaintiffs’ Response to Defendant’s Motion to Dismiss (ECF 15).

ARGUMENT

2.1               A preliminary injunction is appropriate if the Plaintiffs can establish that: (1) they are likely to succeed on the merits of their case; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tip in their favor; and (4) that an injunction is not against the public interest. Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008); Whirlpool Corp. v. Shenzhen Sanlida Elec. Tech. Co., Ltd., 80 F.4th 536, 543 (5th Cir. 2023) See Munaf v. Geren, 553

U.S. 674, 689-690 (2008); Amoco Production Co. v. Gambell, 480 U.S. 531, 542 (1987);

Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-312 (1982).

i.             Plaintiffs are likely to succeed on the merits of their case.

2.2               “In order to establish adverse possession as a matter of law, the claimant must show by undisputed evidence his actual peaceable and adverse possession of the property   “Bywaters v.

Gannon, 686 S.W.2d 593, 595 (Tex. 1985) (citations omitted). Peaceable possession is “possession of real property that is continuous and is not interrupted by an adverse suit to recover the property.” Tex. Civ. Prac. & Rem. Code §16.021(3). Adverse possession is “actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is

hostile to the claim of another person.” Tex. Civ. Prac. & Rem. Code § 16.021(1). A party claiming title by adverse possession must demonstrate “(1) actual and (2) visible possession that is (3) under a claim of right, (4) hostile to another’s claim to the property, and (5) peaceable for the applicable limitations period.” Tex. Civ. Prac. & Rem. Code § 16.021; see Nat. Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 193 (Tex. 2003).

2.3               If the party “cultivates, uses, or enjoys the property” and “pays applicable taxes on the property” while “claim[ing] the property under a duly registered deed[,]” the applicable limitations period is five years. Tex. Civ. Prac. & Rem. Code § 16.025(a); see Natural Gas Pipeline Co. v. Pool, 124 S.W.3d 188, 193 (Tex. 2003). The Couches claim the Property under a duly registered deed, they are the only party to use the Property since at least 2001, and they have been the only party to pay taxes on the property from at least 2001-2023. Therefore, the applicable statute of limitations period is five years.

2.4               The statute of limitations begins to run at the point that the right of action accrues.

Warnecke v. Broad, 138 Tex. 631, 634 161 S.W.2d 453, 454 (1942); Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp., 522 U.S. 192, 201 (1997). This language incorporates the standard rule that the limitations period commences when the Plaintiff has “a complete and present cause of action.” Rawlings v. Ray, 312 U.S. 96, 98 (1941); see also Clark v. Iowa City, 87U.S. 583, 589 (1875) (“All statutes of limitation begin to run when the right of action is complete

. . . .”). Unless Congress has stated otherwise, a cause of action does not become “complete and present” for limitations purposes until the plaintiff can file suit and obtain relief. See Reiter v. Cooper, 507 U.S. 258, 267 (1993). To satisfy the limitation statutes, “adverse possession” must be not only “an actual and visible appropriation of the land” but it also must be “commenced and continued under a claim of right inconsistent with and hostile to the claim of another.” Tex. Civ.

Prac. & Rem. Code § 16.021(1). No matter what the use and occupancy of the land may be, the possessor must intend to appropriate it. Wright v. Vernon Compress Co., 156 Tex. 474, 296 S.W.2d 517 (1956). BONYM obtained the right to foreclose on the Property on November 1, 2015, from the U.S. District Court for the Northern District of Texas. This began tolling the 5-year statute of limitations for adverse possession.

2.5                 A “claim of right” is defined as the claimant’s intention to appropriate or claim the land.

see Calfee v. Duke, 544 S.W.2d 640, 642 (Tex. 1976); Schuhardt Consulting Profit Sharing Plan v. Double Knobs Mt. Ranch, Inc., 426 S.W.3d 800, 807–808 (Tex. App.—San Antonio 2014, pet. denied) (claim of right depends on owner’s intent to claim land, so mere possession without such intent is not sufficient to support adverse possession). This claim is necessarily hostile or adverse to any claims to the land by other parties. A claim of right may be established by a public declaration of the claim or by open and visible acts. The verbal assertion of a claim is unnecessary. see Ramirez v. Wood, 577 S.W.2d 278, 287 (Tex. Civ. App.—Corpus Christi 1978, no writ).

2.6               There is no dispute that the Couches have actually, visibly, and peaceably possessed the Couch Property since at least 2001. Because the Couches enjoyed the Property under a duly registered deed and were the sole taxpayers on the Property through 2023, the applicable limitations period started on November 1, 2015, and ran through 2023, amounting to a period of 8 years. The Couches are likely to succeed on the merits of the case because the Couches have fulfilled all the elements to claim title to the Property through adverse possession.

ii.            Plaintiffs will suffer irreparable harm in the absence of preliminary relief.

2.7              The loss of a home will be irreparable harm. Euristhe v. Beckmann, No. 4:23-cv-00653-O- BP, 2023 U.S. Dist. LEXIS 113095 *11 (N.D. Tex. 2023); see Belknap v. Bank of America, N.A., G-12-198, 2013 U.S. Dist. LEXIS 201231, 2012 WL 3150271, at *3 (S.D. Tex. Aug. 1, 2012); see

also U.S. v. Goltz, SA-06-CA-503-XR, 2007 U.S. Dist. LEXIS 5322, 2007 WL295558, at *3

(W.D. Tex. Jan. 25, 2007) (loss of property is usually considered an irreparable injury). The Couches will suffer irreparable harm if a preliminary injunction is not issued because BONYM will not only sell the Property but evict the Couches as well while this case is being heard on the merits. This will deprive the Couches, a nearly 70-year-old couple of the home they have lived in for over 20 years, causing irreparable harm.

iii.  Plaintiffs can demonstrate that the balance of equities tip in their favor.

2.8              Plaintiffs seeking a preliminary injunction must demonstrate that the balance of equities tips in their favor. Vanderstok v. Garland, No. 23-10718, 2023 U.S. App. LEXIS 26499 *6 (5th Cir. 2023); see Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). Plaintiffs face losing the Property where they have lived for over twenty years while a preliminary injunction would only delay Defendant, a large banking conglomerate, from selling one of its numerous properties until the end of trial.

iv.    A preliminary injunction is not against the public interest.

2.9              Issuance of a preliminary injunction would not adversely affect the public interest as this is a matter relating to the ownership of one single family property which only affects the parties at suit; courts consider a preliminary injunction for a private foreclosure sale in favor of public interest and at worst neutral to public interest. See Opulent Life Church v. City of Holly Springs Miss., 697 F.3d 279, 298 (5th Cir. 2012); Euristhe v. Beckmann, No. 4:23-cv-00653-O-BP, 2023

U.S. Dist. LEXIS 113095 *12 (N.D. Tex. 2023); Maria Eugenia Enters. v. Wells Fargo Bank, N.A., Civil Action No. 3:19-CV-2729-BH, 2020 U.S. Dist. LEXIS 255868 *13 (N.D. Tex. 2020).

In fact

CONCLUSION

The Plaintiffs have established the need for a preliminary injunction to enjoin Defendant from evicting the Couches and selling the Couch Property while this case is at trial. Plaintiffs have a strong likelihood to succeed on the merits of their adverse possession claim. Plaintiffs will suffer irreparable harm if Defendant is not enjoined from evicting the Couches and selling the Couch Property. The balance of equities shifts in favor of the Plaintiffs because they are at risk of losing the only home they own, a home that they have lived in for over 20 years. And finally, a delayed private foreclosure sale is not adverse to the public interest. For these reasons, Plaintiffs ask the Court to issue a preliminary injunction enjoining Defendant and its agents from attempting to sell the Couch Property until the close of this suit.

Respectfully submitted,

/S/Debra Edmondson

Debra Edmondson
Texas State Bar No. 24045824
debra@edmondsonlawfirm.com

Joseph Glover
Texas State Bar No. 24131334
josephg@edmondsonlawfirm.com

The Edmondson Law Firm, P.L.L.C.
P.O. Box 92801
325 Miron Dr., Ste. 100
Southlake, TX 76092
Telephone: (817) 416-5291

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

On March 1, 2024, I electronically submitted the foregoing document with the clerk of court for the U.S. District Court, Northern District of Texas, along with all attorneys of record, using the electronic case filing system of the court.

/S/Debra Edmondson

Debra Edmondson