Joe Izen: Deutsche Bank Lawyer Michael Hord’s Time-Barred Attempts At Foreclosure Must Fail

TO THE PRESIDING JUDGE OF THE 333RD JUDICIAL DISTRICT COURT:

COMES NOW, Defendant, Joe Alfred Izen, Jr. (“IZEN”) and files his Further Response to Plaintiff Deutsche Bank’s Motion for Summary Judgment  and Izen’s Reply to Plaintiff Deutsche Bank’s Response to Defendant Izen’s Motion for Summary Judgment and, in support of same, would show the Court the following:

PROCEDURAL BACKGROUND AND RECORD RELEVANT TO IZEN’S MOTIONS FOR SUMMARY JUDGMENT

I.

1.     Izen filed his first summary judgment in Case No. 2023- 33484 on January 16, 2024.

2.   Izen filed another Motion for Summary Judgment in Case No. 2018-07344 on January 17, 2024.

3.   Before this Court ruled on either of Izen’s Motions for Summary Judgment, this Court entered an order consolidating Case No. 2023-33484 with Case No. 2018-07344 on August 20, 2024.

Deutsche Bank filed its Motion for Summary Judgment on July 1, 2024.

4.    After a hearing on August 6, 2024, this Court entered an order denying Izen’s first Motion for Summary Judgment which was filed in Case No. 2018-07344.

This Court’s summary judgment order denying Izen’s first Motion for Summary Judgment was dated September 18, 2024 in Case No. 2018-07344.

5.     Currently, Deutsche Bank’s Motion for Summary Judgment is scheduled for hearing before this Court on November 19, 2024.

6.   Izen’s Response responds to Deutsche Bank’s Motion for Summary Judgment. Izen’s Reply replies to Deutsche Bank’s Re- sponse to Defendant Izen’s Motion for Summary Judgment which was filed in Case No. 2018-073244 on July 1, 2024.

7.     This Response is a further response to Deutsche Bank’s Motion for Summary Judgment in addition to that Response filed with this Court on October 29, 2024.

DEUTSCHE BANK’S HOME EQUITY LOAN AND LIEN COLLECTION SUIT IS BARRED BY THE FOUR-YEAR STATUTE OF LIMITATIONS

II.

NOTICE OF ACCELERATION LETTER DATED AUGUST 27, 2013:

1.     The uncontroverted summary judgment evidence presented by the parties in this case proves that Deutsche Bank issued and served, by certified mail and regular mail, a Notice of Acceleration.

This notice of acceleration was received by alleged home equity loan and lien debtors, Afton Jane Izen and Paul A. Butler, on August 30, 2013.

Deutsche Bank’s notice of acceleration letter dated August 27, 2013 to debtor Afton Jane Izen contained the following certified mail number 71969006929690568251.

Deutsche Bank’s notice of acceleration letter dated August 27, 2013 to debtor Paul A. Butler bears the following certified mail number 71969006929690568244.

2.      These two notice of acceleration letters dated August 27, 2013 were delivered by the United States Post office to debtors Afton Jane Izen and Paul A. Butler both on August 30, 2013.

The United States Post Office issued an official records / mailing confirmation which is dated August 30, 2013.

3.  True and correct copies of the two notice of acceleration letters dated August 27, 2013 Deutsche Bank sent to debtors Afton Jane Izen and Paul A. Butler are attached hereto, marked Exhibits A and B, and are incorporated by reference herein as summary judgment evidence.

4.     True and correct copies of the two United States Post Office confirmation notices are attached to and included in the two  Notices  of  Acceleration  marked  Exhibits  A  and  B,  and  are incorporated by reference herein as summary judgment evidence.

5.     NO OTHER NOTICE OF ACCELERATION OR ANY LETTER OR DOCUMENT ABANDONING ACCELERATION WAS EVER SENT BY DEUTSCHE BANK TO ANY OF THE DEBTORS, AFTON JANE IZEN OR PAUL A. BUTLER OR ANY OF AFTON JANE IZEN’S HEIRS OR SUCCESSORS FROM AUGUST 27, 2013 TO THE DATE OF THE FILING OF CASE NO. 2018-07344 ON FEBRUARY 2, 2018.

NO ABANDONMENT OF ACCELERATION BY DEUTSCHE BANK FROM AUGUST 27, 2013 TO DATE OF FILING OF THIS SUIT ON FEBRUARY 2, 2018.

6.      The summary judgment record in this case proves that Deutsche Bank gave alleged debtors Afton Jane Izen and Paul A. Butler a notice of default and intent to accelerate letter on July 23, 2013 thirty days before Deutsche Bank sent these alleged home equity and lien debtors the notices of acceleration dated August 27, 2013.

See Izen Summary Judgment Response and Motion for Summary Judgment, Izen 10-29-24 Declaration, Exhibit 7 attached  thereto, which is the July 23, 2013 letter notice of default and intent to accelerate and Exhibits A and B attached to Izen’s 11-12-2024 Declaration.

7.      Deutsche Bank took no action whatsoever inconsistent with the acceleration of indebtedness of its alleged home equity loan from August 27, 2013 through the date of the filing of suit in Case No. 2018-07344 on February 2, 2018.

8.     Deutsche Bank filed its Original Petition in Case No. 2018-07344 without ever issuing or serving the alleged home equity loan debtors Afton Jane Izen and Paul A. Butler with an additional notice of default and intent to accelerate letter.

9.     Deutsche Bank did not agree or offer to agree with the alleged debtors to accept payment of any alleged overdue monthly installments or principal or interest as a cure of default under Deutsche Bank’s alleged home equity loan.

10.       Deutsche Bank accepted no late payments from the alleged debtors, nor did the alleged debtors make payments of any kind to Deutsche Bank which Deutsche Bank can claim waived its right to accelerate under its alleged home equity loan and lien.

Deutsche Bank accepted no late payments from alleged debtors Afton Jane Izen and Paul A. Butler which could serve as proof that Deutsche Bank abandoned the August 27, 2013 acceleration of the alleged home equity loan indebtedness allegedly owed by debtors Afton Jane Izen and Paul A. Butler.

11.     If Deutsche Bank abandoned the August 27, 2013 acceleration, Deutsche Bank would have been required under the clear wording of its alleged home equity lien to send a new and additional notice of default and intent to acceleration letter or other notice to the alleged Debtors Izen and Butler providing those two alleged debtors with another opportunity to cure the default in the monthly payments, and principal and interest allegedly due to Deutsche Bank under the terms of its alleged home equity loan.

12.   Deutsche Bank never sent an new notice of acceleration nor did it abandon the prior August 27, 2013 which remained in effect and was in effect on the date Deutsche Bank filed its Original Petition in this case on February 2, 2018.

NO TOLLING OF STATUTE OF LIMITATIONS BY VOLUNTARILY DISMISSED CASES:

13.      Deutsche Bank insists that the four-year statute of limitations does not bar its claims against the heirs of alleged debtor (Afton Jane Izen, now deceased) and her heirs and successors because alleged debtor Afton Jane Izen filed a law suit against Deutsche Bank in this Court on April 24, 2015 Case No. 2015-23534 which was removed by Deutsche Bank to the U.S. District Court for the Southern District of Texas, assigned Civil Action No. 4:15-cv-01193 and was ultimately voluntarily dismissed by alleged debtor Afton Jane Izen.

Deutsche Bank admits and the summary judgment record establishes beyond dispute that Deutsche Bank filed a counter-claim in that federal suit Civil Action No. 4:15-cv-01193.

The record in Civil Action No. 4:15-cv-01193 which has been submitted as summary judgment proof in support of Izen’s Motions for Summary Judgment, this Response and this Reply, provides incontrovertible proof that Deutsche Bank voluntarily dismissed its claims and causes of action against alleged debtor Afton Jane Izen in Civil Action No. 4:15-cv-01193 on January 26, 2016.

See Izen 10-29-24 Declaration, Exhibit 13

14.     The mere pendency of alleged debtor Afton Jane Izen’s state and then removed federal law suit against Deutsche Bank has no effect on the running of the statute of limitations in this case which now bars all of Deutsche Bank’s alleged home equity loan and lien claims against the heirs of the estate of Afton Jane Izen (deceased) and Afton Jane Izen’s successors.

15.  This is so because as explained by the Fourteenth Court of Appeals in Powell v. v. CIT Bank, N.A., NO. 14-15-00949-CV (Tex. App. Jun 08, 2017) where parties dismiss their lawsuits voluntarily, the pendency of a law suit which is voluntarily dismissed  does  not  toll  the  running  of  the  statute  of  limitations.

As the Powell decision explains:

CIT Bank argues that it could have abandoned the “acceleration” of the Note and that CIT Bank did abandon acceleration when CIT Bank and Powell signed and filed the mutual motion for nonsuit in the prior lawsuit.

Though neither CIT Bank nor its predecessors could abandon an acceleration of the Note, even presuming for the sake of argument that CIT Bank could have abandoned acceleration, the trial evidence is legally insufficient to support the trial court’s conclusion that the filing of the mutual motion for nonsuit effected an abandonment of the Note’s acceleration with the consent of Powell and CIT Bank.

See Residential Credit Solutions v. Burg, No. 01-15-00067-CV, 2016 WL 3162205, at *3-5 (Tex.App.-Houston [1st Dist.] Jun. 2, 2016, no pet.) (mem. op.).

In the mutual motion for nonsuit, CIT Bank stated that it no longer desired to pursue its claims against Powell and requested the court to sign an order “nonsuiting” these claims without prejudice, and Powell stated that she no longer desired to pursue her claims against CIT Bank and requested the court to sign an order “nonsuiting” these claims without prejudice.

The dismissal without prejudice of these claims returned the parties to the positions they occupied before any suit was filed, as if the first suit had never existed.

See Cunningham v. Fox, 879 S.W.2d 210, 212 (Tex. App.-Houston [14th Dist.] 1994, writ denied).

By joining and agreeing to this motion neither CIT Bank nor Powell agreed that any alleged acceleration of the amounts due and owing under the Note would be abandoned.

Each party agreed to nonsuit without prejudice the party’s claims for affirmative relief.5 CIT Bank appears to argue that the mutual motion for nonsuit must be an abandonment of acceleration because the parties agreed that each nonsuit would be “without prejudice” and because, if the motion is not an abandonment of acceleration, the dismissal would be with prejudice.”

Any such argument misconstrues the meaning of a voluntary dismissal without prejudice.

The “without prejudice” denomination means that the dismissal of the claims does not prevent the re-filing of the claims; it does not mean that the pendency of the first suit tolled the statute of limitations as to a later suit or that any other party in the case waived any defenses to the voluntarily dismissed claims.

See id.;  Hammonds v. Texas Dept. of Criminal Justice,  No. 04-11-00009-CV,  2011 WL 3610406, at *1-2 (Tex. App.-San Antonio Aug. 17, 2011, no pet.) (mem. op.).

Because the four-year limitations period expired before Powell filed this lawsuit in July 2013, the real-property  lien  and the power of sale to enforce  the  lien  became unenforceable.6

Tex. Civ. Prac. & Rem. Code Ann. 16.035(d).

And, because CIT Bank’s power to enforce the lien is unenforceable, the trial court erred in granting CIT Bank declaratory relief.7

See id.

Therefore, we sustain Powell’s issue challenging the trial court’s declarations, reverse the portion of the trial court’s judgment granting CIT Bank declaratory relief, and render judgment denying CIT Bank’s requests for declaratory relief.

Similarly, Deutsche Bank’s voluntary dismissal without prejudice of its Counter-Claims and causes of action in Federal civil Action No. 4:15-cv-01193 did not operate to toll the running of the four-year statute of limitations during the period of time Deutsche Bank’s claims and causes of action remained pending in the Federal Court prior to Deutsche Bank’s voluntary dismissal.

NO LEGAL DISABILITY PREVENTED DEUTSCHE BANK FROM TIMELY FILING THIS LAW SUIT WITHIN THE FOUR-YEAR STATUTE OF LIMITATIONS AFTER DEUTSCHE BANK’S AUGUST 27, 2013 ACCELERATION:

16.      Deutsche Bank claims that the four-year statute of limitations which now bar its untimely-filed action tolled the running of the four-year statute of limitations while its counter-claim and alleged debtor Afton Jane Izen’s federal civil action was pending before the Southern District of Texas.

17.      The mere filing of a law suit by an opposing party concerning the same or similar debt collection matters as that being pursued by a creditor does not toll the statute of limitations in favor of the creditor.

18.  In order for the pendency of a legal action to toll the running of the statute of limitations, such legal action must prevent a creditor from filing and pursuing his claims against the debtor.

19.     The debtor’s mere filing of suit or a legal or equitable order controlling the creditor must create a legal disability which prevents the creditor from timely pursuing his legal claims and causes of action against the debtor.

20.    A debtor’s filing of bankruptcy creates such a creditor legal disability.

The automatic stay under 18 USC Sec. 362 prohibits a creditor from taking any further action against the debtor or the debtor’s property to collect an outstanding liability at the mere point of filing of a law suit.

The automatic stay springs into being immediately upon the point of filing.

21.     A temporary injunction or temporary restraining order may create a legal disability which tolls the running of the statute of limitations if the temporary injunction or TRO directly commands under threat of contempt the creditor not to proceed with collection action or other enforcement of the creditor’s rights.

As the Dallas Court of Appeals explained in Bliss v. Bank of Am., No. 05-18-00476-CV (Tex. App. Jun 04, 2019):

When the approximately 90-day period from conversion to the date of discharge is added back in to Bliss’s total, the Banks’ notice letter on April 23, 2015 was within the limitations period even if, as Bliss contends, the temporary restraining order granted in the 2011 litigation did not result in any tolling of limitations.

We decide Bliss’s third and fourth issues against her.

Here, Deutsche Bank has neither an automatic stay or a temporary injunction or temporary restraining order which prevented Deutsche Bank from timely filing its claims and causes of action it asserts in this case on or before August 27, 2017 when the four-year statute of limitations expired.

SUMMARY JUDGMENT EVIDENCE SUPPORTING RESPONSE AND REPLY:

22.     Izen relies on the following summary judgment evidence in support of this Response and Reply:

22.1.     The summary judgment evidence submitted by the parties in this case including all of the Declarations and Affidavits of the parties and the summary judgment Exhibits attached thereto including but not limited to the attached Declaration of Joe Alfred Izen, Jr. in  Support of this Further Response and Reply.

22.2.       The admissions contained in the summary judgment pleadings of the parties.

22.3.      The admissions contained in the pleadings of the parties and the content of the papers filed in this case which are subject to judicial notice.

CONCLUSION

Based on all of the legal argument set out above and the summary judgment record and summary judgment evidence submitted in this case, this Court should enter an order granting Izen’s Motion for Summary Judgment against Deutsche Bank filed by Izen in Case No. 2023-33484 on January 16, 2024 and denying Deutsche Bank’s Motion for Summary Judgment filed in Case No. 2018-07344 on July 1, 2024.

Izen prays for general relief.

Respectfully submitted,

/s/ Joe Alfred Izen, Jr.
Joe Alfred Izen, Jr.

Attorney for Defendants and Joe Alfred Izen, Jr.
In Propria Persona TBC # 10443500

5526 McKnight Street
Houston, Texas     77035
(713) 668-8815
(713) 668-9402 FAX
jizen@comcast.net

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the above document was served on  Michael F. Hord Jr., HIRSCH & WESTHEIMER, P.C., 1415 Louisiana, 36th Floor, Houston, Texas 77002-2772, Email: mhord@hirschwest.com and David Grose, 1316 Dunstan Road, Pasadena, Texas by Texas eserve on November 12, 2024.

/s/ Joe Alfred Izen, Jr.

Joe Alfred Izen, Jr.