FEB 28, 2024 | REPUBLISHED BY LIT: AUG 9, 2024
AUG 9, 19, SEP 1, NOV 21, 2024
MAY 17, 2025
Above is the date LIT Last updated this article.
Jerry Schutza’s extending his creative arguments, most likely questioning whether FNF has the original signed final loan application (think Burke/Akerman) to confirm that all important question which adorns all mortgage applications, namely who resides in the property and what’s the relationship to the applicant in the $100k HELOC refinance.
However, without ferreting into all the exhibits, it appears that after Loancare decide on replacing Akerman, new law firm FNF’s response strongly indicates they have more than sufficient evidence that she signed legal docs as ‘unmarried’, rejecting the argument there was an ‘informal marriage’.
Ken Palluotto (“Palluotto”) Plaintiff, files his Sureply to Defendant’s Reply to Plaintiff’s Response to Defendant’s Motion For Partial Summary Judgment.
NATURE OF SUREPLY
1. In its Reply Defendant NewRez, L.L.C. (“NewRez”) makes several incorrect statements in regard to Texas law.
LEGAL ARGUMENTS
Texas law does not require a written document to establish an informal marriage
2. In its Reply, NewRez states that Palluotto fails to point to a single document in which Margaret Jankowiak acknowledges the alleged informal marriage…
3. This is misleading statement of Texas law because there is no requirement that either spouse must execute any written document.
See Tex. Fam. Code Section 2.401.
4. Whether Margaret Jankowiak did or did not sign a document which either does or does not acknowledge an informal marriage is totally irrelevant to whether there was or was not an informal marriage.
5. Likewise, whether Margaret Jankowiak signed a document which stated that she was unmarried is also irrelevant because Texas law is crafted to protect the non-consenting spouse.
One spouse cannot consent for the other spouse
In this case Palluotto is the nonconsenting spouse and is entitled to the protection which is allowed by Texas law.
6. Under Texas law the requirements to establish an informal marriage are, “the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.”
Tex. Fam. Code §2.401; Small v. McMaster, 352 S.W. 3d 280 (Tex. App. – Houston [I8t Dist] 2011, pet. denied); Nguyen v. Nguyen, 355 S.W. 3d 82 (Tex. App. – Houston [Pt Dist.] 2011, pet. denied).
7. These facts are established by the Affidavit of Palluotto.
See Small v. McMaster, supra at 283 (the testimony of one of the parties to an informal marriage is evidence that the parties agreed to be married).
8. Texas law does not require either spouse to sign any document which acknowledges the informal marriage.
9. In any event, the existance of an informal marriage is a fact question.
Small v. McMaster, supra; Montemayor v. Jlfontemayor, 01-23-00374-CV (Tex. App. – Houston [I5t Dist] 2025, no pet.).
The Texas Constitution requires written consent to a lien on a homestead
10. In its Reply NewRez again misstates Texas law.
11. NewRez argues that the mere fact that Paluotto knew that his wife was making a loan somehow constitutes consent to a lien on his homestead.
12. This argument contradicts both the Texas Constitution, Texas statutory law, and Texas case law.
13. The Texas Constitution states:
Tex. Constitution, Art. 16 Section 50 Homestead; Protection From Forced Sale;
Mortgages Trust Deeds and Liens
(a) The homestead of a family, or of a single adult person, shall be and is hereby protected from forced sale, for payment of all debts except for:
(6) An extension of credit that: (A) is secured by a voluntary lien on the homestead created under a written agreement with the consent of each owner and each owner’s spouse. (emphasis added)
14. Tex Property Code Section 53.24 requires that in order to create a valid lien on a homestead there must be a “written contract” and “if the owner is married the contract must be signed by both spouses.”
Id.
15. The Texas Family Code prohibits the encumbrance of a homestead “without the joinder of the other spouse… ”
Tex. Fam. Cod, Sec. 5.001.
16. In the present case NewRez has failed to establish or offer any evidence of any written agreement or contract which was executed by Palluotto in which he consented to the NewRez lien on his homestead.
17. Additionally, under the summary judgment evidence there would be, at most, a question of fact to whether any action was a knowing consent.
18. In short, the summary judgment evidence does not establish that there was written consent by Palluotto as required by Texas law. Again, at most there is a question of fact.
Motion For Leave to File this Sureply
19. To the extent as may be necessary for the Court’s permission for Palluotto to file this Sureply Palluotto requests leave or permission of this Court to file this Sureply.
WHEREFORE, Ken Palluotto requests that Defendants’ Motion be denied and that he receive all relief to which he may be entitled.
Respectfully submitted,
JERRY L. SCHUTZA
By: Isl Jerry L. Schutza
Defendant NewRez LLC (hereafter “Defendant”) respectfully replies to Plaintiff Ken Palluotto’s Response [Docket # 27] to Defendant’s Partial Motion for Summary Judgment [Docket # 23].
In support, Defendant would show the following:
A. No Evidence Margaret Jankowiak Agreed to the Informal Marriage and Objection to Evidence.
1. Defendant in no way concedes that Plaintiff has established an informal marriage.
Plaintiff fails to point to a single document in which Margaret Jankowiak acknowledges the alleged informal marriage to Plaintiff.
Margaret Jankowiak executed multiple documents recorded in the public records in which she confirmed that she was an unmarried woman.1
In fact, not a single document in the Property’s chain of title identifies Margaret Jankowiak as a married individual.
However, Plaintiff claims that he was married to Ms. Jankowiak since September 1996.2
2. Defendant objects to the Affidavit of Kenny Palluotto with respect to all statements as to whether Margaret Jankowiak considered herself to be married.
Said statements are hearsay and call for speculation.
1 See Exhibits 3, 4, and 7 attached to Plaintiff’s response.
2 Margaret Jankowiak was legally married to David Jankowiak until 1999.
Further, Defendant objects to the Notice of Award from the Social Security Administration attached to Plaintiff’s response to Defendant’s Partial Motion for Summary Judgment as Exhibit 9 as hearsay.
B. Plaintiff admits to knowledge of the loan at all relevant times.
3. The Texas Constitution allows an owner’s spouse to subsequently consent to the home equity lien. TEX. CONST. art. XVI, § 50(a)(6)(Q)(xi). Plaintiff testified that he knew Margaret Jankowiak refinanced her loan against the Property for a lower interest rate.3 Plaintiff admits in both his deposition testimony and his affidavit attached to Plaintiff’s response to Defendant’s Partial Motion for Summary
Judgment that he continued to make payments on the mortgage for years after Margaret Jankowiak died. Margaret Jankowiak made the payments on the mortgage for close to ten (10) years before her death and then Plaintiff continued to make the payments after her death.
The evidence is undisputed that Plaintiff had full knowledge of the loan for almost seventeen (17) years before filing his lawsuit disputing the validity of the mortgage.
4. Plaintiff relies on the Texas Supreme Court case of Hruska v. First State Bank of Deanville to support his position that the home equity loan cannot be ratified by the spouse.
However, this case stands for the proposition that a lien may not be created by oral representation as First State Bank attempted to do in that case.
Hruska, 747 S.W.2d 783, 785 (Tex. 1988).
In the case at issue, there is a Texas Home Equity Security Instrument undisputedly signed by Margaret Jankowiak in 2007.
5. Further, Ya Qin Tong v. Nationstar Mortgage, the other case cited by Plaintiff, is distinguishable from the matter at hand.
In Ya Qin Tong, the borrower’s wife testified that she had no knowledge of the loan and would have objected to the loan on her residence.
3 See Exhibit 7 to Defendant’s Partial Motion for Summary Judgment.
Ya Qin Tong v. Nationstar Mortgage LLC, 2023 WL 2422482, No. 05-19-01558-CV (Tex. App.—Dallas March 9, 2023, pet. denied).
Unlike Ms. Tong, Plaintiff Palluotto testified that he knew Ms. Jankowiak was refinancing the loan to obtain a lower interest rate.
Further, he continued to make payments on the loan for years after Ms. Jankowiak’s death.
As such, Plaintiff consented to and ratified the 2007 Texas Home Equity Security Instrument.
C. Conclusion
6. Defendant respectfully requests that the Court grant Defendant’s Partial Motion for Summary Judgment.
Respectfully submitted,
/s/ Tiffany Serbousek Gilbert
Gregory Brewer (Lead Counsel)
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:24-cv-00721
| Palluotto v. Newrez LLC et al Assigned to: Judge Andrew S Hanen
Cause: 28:1332 Diversity-Notice of Removal |
Date Filed: 02/28/2024 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 09/09/2024 | 12 | Opposed MOTION for Leave to File First Amended Answer and Counterclaim by NewRez LLC, filed. Motion Docket Date 9/30/2024. (Attachments: # 1 Exhibit Defendant’s First Amended Answer and Counterclaim, # 2 Proposed Order) (Serbousek Gilbert, Tiffany) (Entered: 09/09/2024) |
| 12/29/2024 | 13 | MOTION to Dismiss Joe Castro by Ken Palluotto, filed. Motion Docket Date 1/21/2025. (Attachments: # 1 Proposed Order) (Schutza, Jerry) (Entered: 12/29/2024) |
| 01/03/2025 | 14 | ORDER granting 13 MOTION to Dismiss Joe Castro only without prejudice. (Signed by Judge Andrew S Hanen) Parties notified. (jld4) (Entered: 01/06/2025) |
| 01/13/2025 | 15 | ORDER denying 4 Motion to Remand.(Signed by Judge Andrew S Hanen) Parties notified. (rsh4) (Entered: 01/13/2025) |
| 01/13/2025 | 16 | ORDER granting 12 Motion for Leave to File a First Amended Answer and Counterclaim..(Signed by Judge Andrew S Hanen) Parties notified. (jld4) (Entered: 01/15/2025) |
| 01/13/2025 | 17 | First AMENDED ANSWER and COUNTERCLAIM agaist Ken Palluotto by NewRez LLC d/b/a Shellpoint filed. (jld4) (Entered: 01/15/2025) |
| 02/13/2025 | 18 | NOTICE to Take Deposition of Ken Palluotto by NewRez LLC, filed. (Serbousek Gilbert, Tiffany) (Entered: 02/13/2025) |
| 02/13/2025 | 19 | MOTION for Outstanding Discovery Issues Conference by NewRez LLC, filed. Motion Docket Date 3/6/2025. (Attachments: # 1 Exhibit Discovery Requests, # 2 Exhibit Request for Tax Return, # 3 Exhibit Response to Discovery) (Serbousek Gilbert, Tiffany) (Entered: 02/13/2025) |
| 02/20/2025 | 20 | Unopposed MOTION to Substitute Counsel by NewRez LLC, filed. Motion Docket Date 3/13/2025. (Attachments: # 1 Proposed Order) (Dungan, Martin) (Entered: 02/20/2025) |
| 02/21/2025 | 21 | ORDER granting 20 Motion to Substitute. Attorney Melanie Morgan terminated, Attorney Byron Keaton substituted..(Signed by Judge Andrew S Hanen) Parties notified. (jld4) (Entered: 02/24/2025) |
| 03/13/2025 | 22 | NOTICE to Take Deposition of Ken Palluotto by NewRez LLC, filed. (Serbousek Gilbert, Tiffany) (Entered: 03/13/2025) |
| 03/31/2025 | 23 | MOTION for Partial Summary Judgment by NewRez LLC, filed. Motion Docket Date 4/21/2025. (Attachments: # 1 Appendix Exhibits 1-11, # 2 Proposed Order) (Serbousek Gilbert, Tiffany) (Entered: 03/31/2025) |
| 04/18/2025 | 24 | Unopposed MOTION for Extension of Time To Respond to Defendant’s Motion for Summary Judgment by Ken Palluotto, filed. Motion Docket Date 5/9/2025. (Attachments: # 1 Proposed Order) (Schutza, Jerry) (Entered: 04/18/2025) |
| 04/23/2025 | 25 | DISCOVERY ORDER (Signed by Judge Andrew S Hanen) Parties notified. (rsh4) (Entered: 04/23/2025) |
| 04/29/2025 | 26 | EMERGENCY MOTION for Extension of Time Respond to Defendant’s Motion for Summary Judgment by Ken Palluotto, filed. Motion Docket Date 5/20/2025. (Attachments: # 1 Proposed Order) (th4) (Entered: 04/29/2025) |
| 04/30/2025 | 27 | RESPONSE to 23 MOTION for Partial Summary Judgment ,filed by Ken Palluotto. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Proposed Order) (abb4) (Entered: 04/30/2025) |
| 04/30/2025 | 28 | ORDER granting 26 Motion for Extension of Time Responses due by 4/30/2025..(Signed by Judge Andrew S Hanen) Parties notified. (rsh4) (Entered: 05/01/2025) |
| 05/02/2025 | 29 | MOTION for R. Martin Dungan to Withdraw as Attorney by NewRez LLC, filed. Motion Docket Date 5/23/2025. (Attachments: # 1 Proposed Order) (Dungan, Martin) (Entered: 05/02/2025) |
| 05/07/2025 | 30 | REPLY to Response to 23 MOTION for Partial Summary Judgment , filed by NewRez LLC. (Serbousek Gilbert, Tiffany) (Entered: 05/07/2025) |
| 05/08/2025 | 31 | ORDER granting 29 Motion to Withdraw as Attorney. Attorney Martin Dungan terminated. (Signed by Judge Andrew S Hanen) Parties notified. (glc4) (Entered: 05/12/2025) |
| 05/16/2025 | 32 | SURREPLY to 23 MOTION for Partial Summary Judgment , filed by Ken Palluotto. (Schutza, Jerry) (Entered: 05/16/2025) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 05/17/2025 19:55:27 |
Leave to File Document
INITIAL DISCLOSURES by NewRez LLC, filed.
(Serbousek Gilbert, Tiffany) (Entered: 07/09/2024)
SCHEDULING ORDER: ETT: 3 days. Bench Trial. Amended Pleadings due by 8/30/24. Joinder of Parties due 8/30/2024. Pltf Expert Witness List due by 10/31/24. Pltf Expert Report due by 10/31/24. Deft Expert Witness List due by 12/13/2024. Deft Expert Report due by 12/13/2024. Discovery due by 3/21/2025. Dispositive Motion Filing due by 3/31/2025. Non-Dispositive Motion Filing due by 4/30/2025. Responses due by 4/21/2025. Joint Pretrial Order due by 9/26/2025. Final Pretrial Conference set 10/27/2025 at 1:30PM in Courtroom 9D before Judge Andrew S. Hanen. Bench Trial set for 11/10/2025 at 9:00 AM in Courtroom 9D before Judge Andrew S. Hanen (Signed by Richard W. Bennett) Parties notified. (svj4) (Main Document 10 replaced on 6/14/2024) (svj4). Modified on 6/14/2024 (svj4). (Entered: 06/12/2024)
MINUTE ENTRY ORDER: The Court conducted the Initial Conference and entered a Scheduling Order.
Appearances: Tiffany Serbousek Gilbert, Jerry L Schutza. Ct Reporter: ERO.
Digital Number: 11:00-11:02AM.
(Signed by Magistrate Judge Richard W Bennett). Parties notified. (svj4)
(Main Document 9 replaced on 6/12/2024) (svj4).
Modified on 6/12/2024 (svj4). (Entered: 06/12/2024)
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:24-cv-00721
| Palluotto v. Newrez LLC et al Assigned to: Judge Andrew S Hanen
Cause: 28:1332 Diversity-Notice of Removal |
Date Filed: 02/28/2024 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Plaintiff | ||
| Ken Palluotto | represented by | Jerry L Schutza Attorney at Law 815 Walker St Ste 1453 Houston, TX 77002 713-963-0081 Email: schutzalaw@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED |
| V. | ||
| Defendant | ||
| NewRez LLC doing business as Shellpoint Mortgage Servicing (Shellpoint) |
represented by | Melanie Dawn Morgan Akerman, LLP 1635 Village Center Cir. Ste 200 Las Vegas, NV 89134 702-634-5005 Fax: 702-380-8572 Email: melanie.morgan@akerman.com LEAD ATTORNEY ATTORNEY TO BE NOTICEDTiffany Serbousek Gilbert Fidelity National Law Group Legacy Town Center II 6900 Dallas Parkway, Suite 610 Plano, TX 75024 972-812-6522 Fax: 972-812-9408 Email: tiffany.gilbert@fnf.com LEAD ATTORNEY ATTORNEY TO BE NOTICEDMartin Dungan Akerman LLP 2001 Ross Ave Ste 3600 Dallas, TX 75201 214-720-4300 Email: martin.dungan@akerman.com ATTORNEY TO BE NOTICED |
| Defendant | ||
| Joe Castro | ||
| Date Filed | # | Docket Text |
|---|---|---|
| 02/28/2024 | 1 | NOTICE OF REMOVAL from 55th Judicial District Court, Harris County, Texas, case number 2024-01943 (Filing fee $ 405 receipt number ATXSDC-31261904) filed by Newrez LLC d/b/a Shellpoint Mortgage Servicing. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Dungan, Martin) (Entered: 02/28/2024) |
| 02/28/2024 | 2 | CORPORATE DISCLOSURE STATEMENT by Newrez LLC d/b/a Shellpoint Mortgage Servicing, filed.(Dungan, Martin) (Entered: 02/28/2024) |
| 02/29/2024 | 3 | ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 5/30/2024 at 10:30 AM by video before Magistrate Judge Peter Bray. (Signed by Judge Andrew S Hanen) Parties notified.(RebeccaBecknal, 4) (Entered: 02/29/2024) |
| 03/27/2024 | 4 | MOTION to Remand by Ken Palluotto, filed. Motion Docket Date 4/17/2024. (Schutza, Jerry) (Entered: 03/27/2024) |
| 04/16/2024 | 5 | RESPONSE to Remand Motion, filed by NewRez LLC. (Attachments: # 1 Exhibit A) (Dungan, Martin) (Entered: 04/16/2024) |
| 04/25/2024 | 6 | NOTICE of Resetting. Parties notified. Initial Conference set for 6/12/2024 at 11:00 AM in by video before Magistrate Judge Richard W Bennett, filed. (svj4) (Entered: 04/25/2024) |
| 05/14/2024 | 7 | NOTICE of Appearance by Tiffany S. Gilbert and Gregory Brewer on behalf of NewRez LLC, filed. (Serbousek Gilbert, Tiffany) (Entered: 05/14/2024) |
| 05/29/2024 | 8 | JOINT DISCOVERY/CASE MANAGEMENT PLAN by NewRez LLC, filed. (Attachments: # 1 Proposed Order Proposed Scheduling Order) (Serbousek Gilbert, Tiffany) (Entered: 05/29/2024) |
| 06/12/2024 | 9 | MINUTE ENTRY ORDER: The Court conducted the Initial Conference and entered a Scheduling Order. Appearances: Tiffany Serbousek Gilbert, Jerry L Schutza. Ct Reporter: ERO. Digital Number: 11:00-11:02AM.(Signed by Magistrate Judge Richard W Bennett). Parties notified. (svj4) (Main Document 9 replaced on 6/12/2024) (svj4). Modified on 6/12/2024 (svj4). (Entered: 06/12/2024) |
| 06/12/2024 | 10 | SCHEDULING ORDER: ETT: 3 days. Bench Trial. Amended Pleadings due by 8/30/24. Joinder of Parties due 8/30/2024. Pltf Expert Witness List due by 10/31/24. Pltf Expert Report due by 10/31/24. Deft Expert Witness List due by 12/13/2024. Deft Expert Report due by 12/13/2024. Discovery due by 3/21/2025. Dispositive Motion Filing due by 3/31/2025. Non-Dispositive Motion Filing due by 4/30/2025. Responses due by 4/21/2025. Joint Pretrial Order due by 9/26/2025. Final Pretrial Conference set 10/27/2025 at 1:30PM in Courtroom 9D before Judge Andrew S. Hanen. Bench Trial set for 11/10/2025 at 9:00 AM in Courtroom 9D before Judge Andrew S. Hanen (Signed by Richard W. Bennett) Parties notified. (svj4) (Main Document 10 replaced on 6/14/2024) (svj4). Modified on 6/14/2024 (svj4). (Entered: 06/12/2024) |
| 07/09/2024 | 11 | INITIAL DISCLOSURES by NewRez LLC, filed. (Serbousek Gilbert, Tiffany) (Entered: 07/09/2024) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 08/09/2024 18:42:59 |
202401943 –
PALLUOTTO, KEN vs. LOANCARE LLC
JAN 11, 2024 | REPUBLISHED BY LIT: AUG 9, 2024
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