PHH Mortgage Corporation and Foreclosure Mill Counsel The Catholic Bandit v. Nancy Patton of Waco, Texas

PHH Mortgage Corporation v. Nancy J. Patton

(6:23-cv-00482)

District Court, W.D. Texas

JUL 5, 2023 | REPUBLISHED BY LIT: FEB 5, 2024

PHH Mortgage Corporation v. Nancy J. Patton

(6:23-cv-00482)

District Court, W.D. Texas

JUL 5, 2023 | REPUBLISHED BY LIT: FEB 5, 2024

Please offer Sunday Prayers for a Distressed and Harassed Widow as the Catholic Bandit goes Judge Shoppin’ in Texas. https://t.co/ggDGDIdR4u @cnalive @CatholicNewsSvc @CatholicRelief @USCCB @catholiccom @NCRegister @CatholicVote @DallasCath @SecretService @USMarshalsHQ #TWO #NMA pic.twitter.com/RSpIICXp45

— lawsinusa (@lawsinusa) February 4, 2024

PLAINTIFF’S ORIGINAL COMPLAINT

JUL 5, 2023

Plaintiff PHH Mortgage Corporation (“Plaintiff” or “PHH”) files this its Original Complaint complaining of Defendant Nancy J. Patton (“Defendant”), and respectfully shows the Court as follows:

I.                   PARTIES

1.                           Plaintiff is the mortgagee of the subject loan agreement and is appearing through the undersigned counsel.

2.                           Defendant Nancy J. Patton is a resident and citizen of Texas, who may be served with process at 10109 Barcelona Court, Waco, Texas 76708, or such other place as she may be found. Summons is requested.

II.                DIVERSITY JURISDICTION AND VENUE

3.                  This Court has jurisdiction over this dispute under 28 U.S.C. Section 1332 because there is complete diversity between PHH and Defendant and the amount in controversy exceeds $75,000.00. See 28 U.S.C. § 1332.

4.                  Plaintiff is a corporation whose citizenship is determined by where it is incorporated and its principal place of business. 28 U.S.C. § 1332(c)(1). PHH was incorporated in

New Jersey and its principal place of business is in Mount Laurel, New Jersey. Therefore, PHH is a citizen of New Jersey for diversity purposes.

5.                  Defendant is an individual and citizen of the state of Texas.

6.                  In this Plaintiff seeks a declaratory judgment to foreclose on real property. Because the lien interest is valued at more than $75,000.00, the minimum amount-in-controversy requirement has been met.

7.                  When a party seeks declaratory relief, the amount in controversy is measured by the value of the object of the litigation, and the value of that right is measured by the losses that will follow. Webb v. Investacorp, Inc., 89 F.3d 252, 256 (5th Cir. 1996). Stated differently, the amount in controversy is “the value of the right to be protected or the extent of the injury to be prevented.” Hartford Ins. Grp. v. Lou-Con, Inc., 293 F.3d 908, 910 (5th Cir. 2002) (quoting Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir. 1983)); see also Farkas, 737 F.3d at 341.

8.                  Here, the value of the right to be protected is enforcement of a mortgage lien through foreclosure. If Plaintiff were to foreclose on the Property, it would be entitled to either the full use and possession of it, or the proceeds of a foreclosure sale. According to the McLennan County Appraisal District, the Property is valued at $276,170.00. Therefore, the amount in controversy is more than $75,000.00.

9.                  Venue is proper in the Western District of Texas, Waco Division, because this suit concerns title to a real property located in McLennan County, Texas. See 28 U.S.C. §§ 124(a)(1), 1391 (b)(2).

III.             FACTS

10.                On or about June 14, 2011, Defendant executed a Texas Home Equity Note (Fixed Rate-First Lien) (“Note”) in the principal amount of $86,000.00 in favor of Wallick and Volk, Inc.

11.              Concurrently with the execution of the Note, Defendant executed a Deed of Trust (“Security Instrument” and together with the Note, the “Loan Agreement”), as grantors, granting Mortgage Electronic Registration Systems, Inc. as nominee for Wallick and Volk, Inc., its successors and assigns, a security interest in certain real property and improvements located in McLennan County and commonly known as 10109 Barcelona Court, Waco, Texas 76708 (the “Property”) and more particularly described as follows:

BEING LOT SEVEN (7) IN BLOCK FOUR (4) OF THE COUGAR RIDGE ADDITION, PART II, TO THE CITY OF WACO, MCLENNAN COUNTY, TEXAS AS PER PLAT RECORDED IN VOLUME 583, PAGE 480, OF THE OFFICIAL PUBLIC RECORDS OF MCLENNAN COUNTY, TEXAS.

True and correct copies of the Note and Security Instrument are attached hereto as Exhibit A and Exhibit B, respectively. The Security Instrument was duly recorded in the Official Public Records of McLennan County, Texas as Instrument No. 2011017913 on June 20, 2011.

12.              Mortgage Electronic Registration Systems, Inc., as nominee for Wallick and Volk, Inc., its successors and assigns, transferred and assigned the Security Instrument to Plaintiff as per a certain Corporate Assignment of Deed of Trust recorded in the Official Public Records of McLennan County as Instrument No. 2021024683 on June 24, 2021. A true and correct copy of the Assignment of Deed of Trust is attached hereto as Exhibit C.

13.              Plaintiff is the current legal owner and holder of the endorsed in blank Note and the mortgagee as that term is defined in section 51.0001(4) of the Texas Property Code.

14.              Under the terms of the Loan Agreement, Defendant was required to pay when due the principal and interest on the debt evidenced by the Note, as well as any applicable charges and fees due under the Note.

15.              The Loan Agreement further provides that should Defendant fail to make payments on the Note as they became due and payable or fail to comply with any or all of the covenants and

conditions of the Security Instrument, then the lender may enforce the Security Instrument selling the Property pursuant to applicable law and in accordance with the provisions set out in the Loan Agreement.

16.              Defendant has failed to make her payments under the terms of the Loan Agreement.

The loan is due for the April 1, 2020 monthly payment and all subsequent payments.

17.              On October 4, 2022, Plaintiff mailed a Notice of Default (“Notice of Default”) to Defendant by regular and certified mail to the Property address. A true and correct copy of this notice is attached hereto as Exhibit D.

18.              The default was not cured, and the maturity of the debt is hereby accelerated by the filing of the instant lawsuit.

19.              Plaintiff brings this suit for declaratory judgment and foreclosure so it may enforce its security interest in the Property.

IV.             CAUSE OF ACTION – DECLARATORY JUDGMENT

20.                       The foregoing paragraphs are incorporated by reference for all purposes.

21.                       Plaintiff requests a declaration from this Court that it is the owner and holder of the Note and beneficiary of the Security Instrument. Plaintiff requests a further declaration from this Court that, as owner and holder of the Note and beneficiary of the Security Instrument, Plaintiff is a mortgagee as that term is defined under Texas Property Code section 51.0001(4), and is authorized to enforce the power of sale in the Security Instrument through foreclosure of the Property.

22.                       Plaintiff has been forced to hire the undersigned attorneys to seek a declaratory judgment as a result of the Defendant’s failure to comply with the Loan Agreement. Plaintiff is therefore entitled to and seeks judgment against Defendant for its reasonable attorney’s fees in this

action, both through trial and in the event of a subsequent appeal, as provided by the Security Instrument signed by Defendant and by statute. TEX. CIV. PRAC. & REM. CODE § 37.009.

V.                CAUSE OF ACTION—NON-JUDICIAL FORECLOSURE

23.              The foregoing paragraphs are incorporated by reference for all purposes.

24.              Plaintiff asserts a cause of action for foreclosure against Defendant. Plaintiff, as the current legal owner and holder of the Note and the mortgagee, has the right to enforce the Note and Security Instrument. Plaintiff has fully performed its obligations under the Loan Agreement; however, Defendant did not comply with the Loan Agreement, by failing to substantially perform material obligations required under its terms (principally, the payment of amounts due under the contract, among others). Therefore, Plaintiff seeks a judgment allowing it to foreclose on the Property in accordance with the Security Instrument and Texas Property Code section 51.002.

25.              Plaintiff has been forced to hire the undersigned attorneys to seek an order allowing foreclosure as a result of Defendant’s failure to comply with the Loan Agreement. Plaintiff is therefore entitled to and seeks judgment against Defendant for its reasonable attorneys’ fees in this action, both through trial and in the event of a subsequent appeal, as provided by the Security Instrument signed by Defendant. Plaintiff seeks an award of attorneys’ fees as a further obligation on the Note and not as a money judgment against Defendant personally.

26.           All conditions precedent have been performed or have occurred.

PRAYER

For these reasons, Plaintiff PHH Mortgage Corporation requests that Defendant Nancy J. Patton be summoned to appear and answer, and that, upon final hearing, it have and recover a judgment against her allowing it to proceed with non-judicial foreclosure in accordance with the

Security Instrument and Texas Property Code section 51.002. Plaintiff further requests its interest and attorneys’ fees, all costs of suit and such other and further relief to which it may be entitled.

Respectfully submitted,

By:   /s/ Mark D. Cronenwett

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

VIVIAN N. LOPEZ
Texas Bar No. 24129029 vlopez@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 PLAINTIFF