LIT UPDATE & COMMENTARY
JAN 31, 2025
Defendants And Counter Plaintiff Joe Alfred Izen Jrs Motion For New Trial Pursuant To TRCP Rule 329b, Unsworn Dec., and Proposed Order. (Jan 29, 2025)
LIT UPDATE & COMMENTARY
JAN 13, 2025
LIT’s been following the Izen cases regarding the time-barred attempts to foreclose on the property. You can read our most recent article:
“Joe Izen: Deutsche Bank Lawyer Michael Hord’s Time-Barred Attempts At Foreclosure Must Fail. Deutsche Bank has neither an automatic stay or injunction which prevented Deutsche Bank from timely filing its claims and causes of action.”
Joe’s a sanctioned Texas lawyer, so he’s used to adversity and we’re confident based upon his past acts that he’ll come back with a motion to reconsider before the newly appointed judge Tracy Good.
That stated, LIT provides our own nonprisoner, non-lawyer common sense analysis in response to the summary judgment pleadings filed by Hord – independent of any of Joe’s answers and rebuttals.
One should also remember Hord lost his attempt to remove sanctioned Texas lawyer Joe Izen’s case to federal court, with federal Judge Lee Rosenthal remanding the case for lack of jurisdiction.
Hord’s latest temporary victory should also be reversed by Judge Tracy Good – or on appeal – for the reasons explained herein.
Before that, it should be recognized that Joanna Burke has a similar argument which is currently and incorrectly sitting in federal court and which should also be remanded for lack of jurisdiction.
Relatedly, there’s another case which also mirrors the facts here which we’re monitoring:
“Stop 736 Foreclosure Litigation: Linda Allan v Mr Cooper aka Nationstar Mortgage LLC in Court 11. Shelley Hopkins Appears for BDF Hopkins and Mr Cooper and makes absurd claims to attempt to steal the homestead at 7512 DEL MONTE DR Houston.”
In that case, Shelley Hopkins has filed a motion for summary judgment after 5 months of inaction.
The timeline of both of these cases and recent movements is notable.
Izen: On Nov. 23, 2024 LIT advised the court had reset the trial from Nov. 25, 2024 until Jan 27, 2025, when new judge Tracy Good would be on the bench.
However, on her final act before leaving office, Outlaw Judge Morris entered an order on Dec. 30, 2024 granting Deutsche Bank’s summary judgment, and allowing foreclosure on a motion submitted by foreclosure mill lawyer Michael Hord.
Allen: This case commenced Apr. 29, 2024 with Hopkins appearing on May 24, 2024.
However, it wasn’t until Dec. 20, 2024 that she’d file a motion for summary judgment, with a special mention regarding ‘a similar case’ by Joanna Burke.
Hopkins and Hord Conspire: Also notable is when Hopkins unlawfully removed Joanna Burke’s state court case to federal court in violation of the laws to the US district court.
Not a single lawyer in the history of removals had ever removed a case to the district court when a bankruptcy stay and proceeding was in effect in Texas Southern District.
Hopkins could cite to no other case, nor the federal court or assigned Federal Judge Ewing Werlien Jr.
Instead, Michael Hord would see an opportunity in another state case and where the party was not represented by counsel to remove the case to federal district court, the Dearmond v SPS case and bankruptcy.
Hord’s removal was on May 14, 2024 – only two months after Hopkins removal of Burke on March 12, 2024.
LIT has analyzed Hord’s contrived arguments for Deutsche Bank and in particular, he’s excluded later precedential orders which overrule his past case and case law.
The key takeaways;
(i) The tolling period of 9 months is inapplicable here as the bank dismissed their counterclaim without prejudice in federal court. See; See Powell v. CIT Bank, N.A., No. 14-15-00949-CV, 2017 WL 4228893 (Tex. App.—Houston [14th Dist.] June 8, 2017, no pet.).
(ii) Hord’s reliance upon Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex. 1991) was rejected in his own case where it was deemed the foreclosure was time-barred and the mortgage a nullity in law. See; U.S. ROF III Legal Title Tr. 2015-I v. Morlock, L.L.C.,, No. 14-18-00332-CV (Tex. App. Jan. 14, 2020)
(iii) Relying upon the facts of the case and applying (i) and (ii) above – Deutsche Bank is time-barred and the Order is erroneous – issued merely to extend the litigation indefinitely, knowing it takes years to wind its way up and down from appeals courts and where necessary, to the supreme court.
LIT will continue to highlight the government and judicial corruption in Texas state and federal courts until citizens – along with the few honest judges and government officials – take a stand for the people and their homes, which are being taken illegally by corrupt courts and judges by unlawfully manipulating century old property laws.
LIT will not stand for it, nor should citizens.
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Comes now Plaintiff, Deutsche Bank National Trust Company, As Trustee, In Trust For Registered Holders of Long Beach Mortgage Loan Trust 2003-2, Asset Asset-backed Certificates, Series 2003 2003-2 (“Trustee”), by and through its loan servicer, Select Portfolio Servicing, Inc. (“Plaintiff”) files this Reply Brief in Support of Motion for Summary Judgment on all claims of
Plaintiff and on Defendant and Intervenor’s claims and defenses based on the statute of limitations in this now consolidated action and would respectfully show as follows:
INTRODUCTION
1. As the Court is now aware, it has already denied Defendant Joe Izen’s Motion for Summary Judgment based on the statute of limitations applicable to foreclosure, effectively finding that the lien securing the loan is not precluded by the applicable statute of limitations.
The issue before the Court with respect to Plaintiff’s Motion for Summary Judgment is now whether Plaintiff has a right to judgment authorizing foreclosure of the subject lien.
2. As the Court is now also aware, the mortgage in question is a Texas Home Equity Loan in default that was provided to Afton Jane Izen and Paul Butler (“Borrowers”) that is past due for the August 1, 2010 payment and all subsequent payments. This is undisputed.
There is also no dispute that Plaintiff is the mortgagee for the Loan, that Notice of Default was provided, or that that payment obligations were legally accelerated. Plaintiff has therefore established its right to a judgment authorizing foreclosure.
3. Neither Mr. Izen, nor Mr. Grose were or are borrowers under the subject mortgage and neither have or can truthfully dispute the subject mortgage defaults. Instead, these parties have contested Plaintiff’s right to foreclosure solely based on the statute of limitations applicable to foreclosure.
As stated, Mr. Izen has already put forth his statute of limitations claims and defenses before the Court via his Motion for Summary Judgment.
The statute of limitations theories espoused by Mr. Izen have already been rejected by this Court when his Motion for Summary Judgment was denied by written order signed on September 18, 2024.
4. There are no fact issues presented and no issues for determination at any potential trial of this matter.
Either Defendants are correct and foreclosure is precluded by the statute of limitations, a point that has been rejected by this Court, or Plaintiff is entitled to a judgment authorizing foreclosure.
Plaintiff has established its right to judgment authorizing foreclosure, has negated Defendant’s and Intervenor’s statute of limitations defenses and claims, and Plaintiff entitled to summary judgment on all issues before the Court, including judgment authorizing foreclosure.
…PHH Mortgage Corporation (“PHH”) (collectively, “Defendants”) provide this Corporate Disclosures Statement.
—ya get all that, Bob?
Here’s the hard copy and a video to show you how that all works… https://t.co/tI8HC2ihpk pic.twitter.com/TWrUmDwzm1
— lawsinusa (@lawsinusa) January 11, 2025
ARGUMENT AND AUTHORITIES
5. In response to Plaintiff’s pending Motion seeking judgment authorizing foreclosure, Mr. Izen does nothing more than re-urge his same statute of limitations arguments that were already rejected by this Court, with one exception.
6. He now references the Powell case in support of his argument that Plaintiff is not entitled to tolling of the statute of limitations as a result of the Borrower’s prior litigation.
See Powell v. CIT Bank, N.A., No. 14-15-00949-CV, 2017 WL 4228893, at *5 (Tex. App.—Houston [14th Dist.] June 8, 2017, no pet.).
However, a review of Powell reveals that it does not support the proposition for which Mr. Izen has cited it and is entirely irrelevant to the case at hand.
In fact, the case contains no discussion of tolling of the statute of limitation and involves a reverse mortgage loan that has entirely different contractual provisions from the loan at issue. Id.
7. In Powell, the First Court of Appeals held that a reverse mortgage lien was precluded by the statute of limitations because the reverse mortgage lien matured by contract upon the Borrower’s death and therefore the four-year statute of limitations expired thereafter.
In the present case, which does not involve a reverse mortgage lien, there is no provision providing for maturity of the Note upon death and unlike the Powell case, here there is definitive evidence of tolling in the form of a prior lawsuit filed by the Borrowers challenging Plaintiff’s right to foreclose.
See Exhibits 1-H though 1-I attached to Plaintiff’s MSJ showing the period of tolling of the statute of limitations applicable to filing a suit seeking judgment authorizing foreclosure.
8. In Powell the lender tried to argue that it abandoned acceleration and therefore avoided the effect of the statute of limitations because it filed a prior lawsuit during the limitations period, but non-suited its suit for judicial foreclosure prior to judgment.
9. The court in Powell held that the lender could not successfully assert abandonment of acceleration to avoid the statute of limitations because the payment obligations had matured, rather than being accelerated by written notice and therefore maturity could not be abandoned.
The present case does not involve an allegation of contractual maturity, but instead involves Mr. Izen’s allegations that the payment obligations were legally accelerated in 2013.
Plaintiff has previously established tolling of the statute of limitations based on the following timeline as supported by its summary judgment evidence.
August 27, 2013 – First date that Mr. Izen claims the statute of limitations accrued.
February 26, 2014- Trustee filed an expedited foreclosure proceeding pursuant to Rule 736 of the Texas Rules of Civil Procedures. Plaintiff Ex. 1-G
April 24, 2015 – Borrower files suit in state court and that action was removed to Federal Court.
The filing of that collateral lawsuit abated the Rule 736 Proceeding or any Rule 736 Proceeding by operation of law and prevented filing of a new expedited foreclosure action while the action by Borrower was on file. Plaintiff Ex.1-H
February 12, 2016 – 294 days after Borrower’s law suit was filed, Borrower’s lawsuit was dismissed by Final Judgment.
(294 days of tolling).
Plaintiff Ex. 1-I
LIT: Counterclaim filed in federal court on May 13, 2015 and the Order of Dismissal on Feb 12, 2016 = 276 days or 9 months. However, the 9 months of tolling do not apply when Deutsche Bank agreed to Dismissal WITHOUT prejudice, the 4-year statute of limitations clock was still running….
August 27, 2017- Date on which limitations expired according to Mr. Izen, absent tolling or abandonment of acceleration.
February 2, 2018- Date Plaintiff filed this Action seeking judgment authorizing foreclosure. See Court’s file.
June 17, 2018- 294 days after August 27, 2017 which is the date SOL would expire with tolling under Mr. Izen’s accrual date analysis
10. The Borrowers had a lawsuit against Plaintiff pending from April 24, 2015 to February 12, 2016 which tolled the applicable statute of limitations for foreclosure for 294 days, therefore the present lawsuit seeking judgment authorizing foreclosure was timely filed on February 2, 2018 even under Mr. Izen’s theories regarding the statute of limitations.
See Reddick v. Deutsche Bank Nat’l Tr. Co., No. 3:16-CV-1997-D, 2017 WL 6343542, at *4 (N.D. Tex. Dec. 12, 2017)
(quoting Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex. 1991);
Deutsch [sic] Bank Nat’l Trust Co. v. Castrellon, 852 Fed. App. 841 (5th Cir., July 12, 2021, no pet.)
LIT: UNPUBLISHED – THEFT OF HOME
(holding that the lender is entitled to tolling during the pendency of a collateral lawsuit that precluded foreclosure of a home equity lien under Rule 736);
Cloward v. U.S. Bank Trust, N.A. as Trustee for LSF9 Master Participation Trust, No. 05-18-01397-CV, 2020 WL 4435306, at *4-6 (Tex. App. – Dallas Aug. 3, 2020, pet. denied)
(finding tolling in favor of the lender because the borrower should not be permitted to destroy or impair the lender’s contractual right to foreclosure under the power of sale by the simple expedient of instituting a suit thereby compelling the lender to abandon the extra-judicial foreclosure which lender had the right to elect).
Accordingly, Defendant and Intervenors statute of limitations have been negated.
11. Plaintiff has also established its right to foreclose on the Property since Borrowers defaulted on their contractual payment obligations, remain in default, and Plaintiff has complied with all prerequisites to foreclosure. The summary judgment evidence establishes that:
(a) a debt exists (see Exhibits 1, 1-A and 1-B);
(b) the debt is secured by a lien created under Tex. Const. art. XVI, §50a(6) for a home equity loan (Exhibits 1-A, 1-B);
(c) a default under the Deed of Trust exists (Exhibit 1);
(d) the requisite notices to cure the default under the Deed of Trust, Tex. Prop. Code §51.002 and other applicable law have been provided and the payment obligations have been accelerated (Exhibits 1 and 1-F); and
(e) Borrowers are deceased and therefore are not members of the National Guard or United States Military and have not applied for relief under the provisions of the Soldier’s and Sailor’s Relief Act of 1940
CONCLUSION
12. Trustee as Plaintiff has established herein its right to a judgment declaring and authorizing its right to conduct a nonjudicial foreclosure sale on the Property in accordance with the terms of the applicable security instrument and the Texas Property Code.
Defendant’s statute of limitations defense fails for the reasons stated herein as already heard and ruled upon following Defendant’s Motion for Summary Judgment.
WHEREFORE, Plaintiff pray that the Court grant summary judgment to Plaintiff and award Plaintiff judgment including a declaration of its right to foreclose, and for such other relief to which Plaintiff may show itself to be entitled.
Respectfully submitted,
HIRSCH & WESTHEIMER, P.C.
By: /s/ Michael F. Hord Jr.
Michael F. Hord Jr.
State Bar No. 00784294
Eric C. Mettenbrink
State Bar No. 24043819
1415 Louisiana, 36th Floor
Houston, Texas 77002-2772
Tel 713-220-9182 / Fax 713-223-9319
Email: mhord@hirschwest.com
Email: emettenbrink@hirschwest.com
ATTORNEY FOR PLAINTIFF
ANTHONY ‘TONY’ WELCH TEXAS TOUR 2025
This is Plaintiffs’ THIRD LAWSUIT pleading for the same relief. In the last suit, the Court granted @MrCooper and @WellsFargo summary judgment, authorizing foreclosure – Read Tony’s lawsuit rebuttal on Jan. 6, 2025: https://t.co/SNDEIqIK4w pic.twitter.com/G6fUWtUohd— lawsinusa (@lawsinusa) January 9, 2025
Izen v. Deutsche Bank National Trust Company
Do not docket in this case. Case remanded to the 333rd Judicial District Court of Harris County, TX.
(4:23-cv-02028)
District Court, S.D. Texas, Judge Lee Rosenthal
OCT 2, 2023 | REPUBLISHED BY LIT: NOV 30, 2024
