Bobbie White v. Josefino Bencomo III ( 2015 )

ACCEPTED
03-14-00812-CV
4579155
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/20/2015 12:21:58 PM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-14-00812-CV
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE AUSTIN, TEXAS
RD
3 JUDICIAL DISTRICT OF TEXAS 3/20/2015 12:21:58 PM
AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
__________________________________________________________________
BOBBIE WHITE,
Appellant,
VS.
JOSEFINO BENCOMO III,
Appellee
__________________________________________________________________
APPELLANT’S BRIEF
From the District Court, 26th Judicial District
of Williamson County, Texas
Trial Court Cause No. 14-0374-C26,
The Honorable Donna King, Judge
__________________________________________________________________
/s/ Tony Pitts
______________________________
Tony Pitts
State Bar No. 24060429
Law Office of Tony A. Pitts
P.O. Box 5369
Round Rock, TX 78683
512.825.5545
512.244.4355 (Fax)
tapitts@taplawfirm.com
ATTORNEY FOR APPELLANT
I.
IDENTITY OF PARTIES AND COUNSEL
The following is a list of all parties and all counsel in this matter:
Appellant in this matter is Bobbie White. The attorney representing
Appellant is:
Tony A. Pitts, Esq.
Law Office of Tony A. Pitts
P.O. Box 5369
Round Rock, TX 78683
512.825.5545
512.244.4355 (Fax)
tapitts@taplawfirm.com
Appellee in this matter is Josefino Bencomo III. The attorneys representing
Appellee are:
Fred Walker
Kimberly Nash
Fred E. Walker, P.C.
609 Castle Ridge Road, Ste. 220
Austin, TX 78746
512.330.9977
512.330.1686 (Fax)
fred@fredwalker.com
knash@fredwalker.com
ii
II.
TABLE OF CONTENTS
I. IDENTITY OF PARTIES AND COUNSEL ………...………….. ii
II. TABLE OF CONTENTS ………………….…………iii
III. INDEX OF AUTHORITIES …………………………… iv
IV. STATEMENT OF THE CASE …………………………..… 1
V. STATEMENT REGARDING ORAL ARGUMENT .……………… 2
VI. ISSUES PRESENTED ……………………… 2
VII. STATEMENT OF THE FACTS ……………………… 3
VIII. SUMMARY OF THE ARGUMENT ………………………. 5
VIII. ARGUMENT AND AUTHORITIES ………………………. 5
A. The Warranty Deed with Vendor’s Lien Keeps the Contract
Executory. ...………………………5
B. The Deed of Trust Did Not Cure the Contract of Being Executory… 7
C. Appellee’s Interpretation of Subchapter D Undermines Its Intended
Purpose. ………………………………… 9
D. The Trial Court Ordered Relief Not Requested in Appellee’s Motion
…………………………...…10
IX. PRAYER ……………………………...11
X. CERTIFICATE OF COMPLIANCE ……………………………...12
XI. VERIFICATION ……………………………...12
XII. CERTIFICATE OF SERVICE ………………..…………… 13
XIII. APPENDIX ……..……………………... 14
iii
III.
INDEX OF AUTHORITIES
A. TEXAS STATUTES
Tex. Prop. Code § 5.062 ………….…………………………. 1
Tex. Prop. Code § 5.063 – 5.066 …………………………………….. 9
Tex. Prop. Code § 5.069 …………………………………….10
Tex. Prop. Code § 5.077 …………………………………….. 1
Tex. Prop. Code § 5.081 …………………………………….. 8
B. TEXAS CASE LAW
Norton v. Norton, No. 07-08-0469-CV, at *4 (Tex.App.—Amarillo 2010, mem.
op.). ….…………………… 5
Cowden v. Bell, 293 S.W.2d 611, 614 (Tex.App.—San Antonio 1956), aff’d 300
S.W.2d 286 (Tex. 1957). ………………..……… 6
Zapata v. Torres, 464 S.W.2d 926, 928 (Tex.App.—Dallas 1971, no pet.)………. 6
Walton v. First Nat’l Bank of Trenton, 956 S.W.2d 647, 651 (Tex.App.—
Texarkana 1997, writ denied). ……..………………… 6
Shook v. Walden, 368 S.W.3d 604, 624 (Tex.App.—Austin 2012, writ denied)…. 6
Riner v. Newman, 353 S.W.3d 312, 318 (Tex.App.—Dallas 2011, no pet.) ……... 7
Flores v. Millenium Interests, Ltd., 185 S.W.3d 427, 435 (Tex. 2005) ……………7
Epco Holdings, Inc. v. Chicago Bridge & Iron Co., 325 S.W.3d 265, 270
(Tex.App.—Houston [14th Dist.] 2011, pet. dismissed). ……...……..… 10
G&H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011)………………… 10
iv
IV.
STATEMENT OF THE CASE
This case involves a pure question of law concerning Subchapter D of the
Texas Property Code. There are no material facts in dispute between the parties,
not even as to damages claimed.
It is uncontested that Appellant and Appellee were parties to a real estate
transaction that had all the characteristics of an executory contract for conveyance
of real property as defined under Tex. Prop. Code § 5.062. The parties, however,
disagreed as to whether a Warranty Deed with Vendor’s Lien wherein superior title
to the subject property was retained, coupled with a Deed of Trust, caused the
executory contract for conveyance to no longer be executory.
After hearing competing motions for summary judgment, the trial court
ruled in favor of Appellee, finding that a Warranty Deed with Vendor’s Lien and
Deed of Trust did operate to make the executory contract no longer executory.
Appellant contends that the Court’s ruling in this regard is erroneous, unsupported
by the law, and threatening of the important policy considerations underlying
Subchapter D.
Appellant respectfully requests that this Court reverse the trial court ruling,
and render judgment in favor of Appellant for the relief requested in her summary
judgment motion, including an award of damages under Tex. Prop. Code § 5.077.
1
V.
STATEMENT REGARDING ORAL ARGUMENT
Appellant is not specifically requesting oral argument. However, oral
argument may aid the Court’s decisional process by providing the Court with an
appreciation of the parties’ conflicting interpretations of Subchapter D of the Texas
Property Code, and the important policy considerations behind it, as they pertain to
this particular set of facts.
VI.
ISSUES PRESENTED
Does a warranty deed with vendor’s lien convey sufficient title to bring an
executory contract for conveyance of real property out from under the applicability
of Subchapter D of the Texas Property Code?
If not, does Appellee have an obligation to comply with the provisions of
Subchapter D of the Texas Property Code in his dealings with Appellant, and is she
entitled to damages under Tex. Prop. Code § 5.077 for his past failure to do so?
2
VII.
STATEMENT OF FACTS1
7.1 Mrs. White and her husband, George White, purchased the residential
real property located at 701 Saunders Dr., Round Rock, TX 78664 (the “House”),
from Josefino Bencomo III in November 2001. The House was to be used as their
permanent residence. The Whites and Bencomo were not related.
7.2 The agreed upon purchase price of the House was $118,000.00. To
purchase the House, the Whites took out a mortgage with Long Beach Mortgage
Company for $82,600.00, who acquired a primary purchase money mortgage lien
on the House. This mortgage and its corresponding lien was subsequently assigned
to JPMorgan Chase Bank, N.A. (“Chase”). The Whites also executed a Real Estate
Lien Note for $35,400.002 and Deed of Trust3 in favor of Bencomo, who obtained
a purchase money mortgage lien on the House secondary to Chase’s lien.
7.3 Bencomo conveyed the House to the Whites via Warranty Deed with
Vendor’s Lien4, wherein he retained superior title to the House over that of the
Whites until his lien was satisfied. The Whites thereafter began paying the
purchase money mortgages as agreed.
1
These facts are not disputed. See Exhibit G – Reporter’s Official Transcript – Hearing on
Motions For Summary Judgment at 9-10; see also Plaintiff’s Motion for Summ. Judg. at 2-3.
2
See Appendix – Exhibit C.
3
See Appendix – Exhibit D.
4
See Appendix – Exhibit B.
3
7.4 Mrs. White lost her husband unexpectedly in December 2003.
Thereafter, she had considerable difficulty paying the mortgages. Chase worked
with Mrs. White to modify its mortgage loan so she and her family could afford to
stay in the House. Mrs. White reached out to Bencomo to lower his interest rate as
well, but he refused.
7.5 Over the years, and despite several requests, Bencomo never provided
Mrs. White with any statements showing the status of her account with him, nor
did he give her any mortgage interest statements like those she received from
Chase, which she could use as a write-off on her federal income tax return.
7.6 When Mrs. White approached Bencomo about these concerns, she
found him unwilling to provide her with annual or mortgage interest statements.
Given his refusal to account for her payments or give her mortgage interest
statements for her taxes, Mrs. White stopped making payments to Bencomo in
2008. By then, she had already made at least 72 monthly payments to Bencomo.
4
VIII.
SUMMARY OF THE ARGUMENT
Appellant argues that a seller’s granting of a warranty deed with vendor’s
lien to a purchaser, which, on its face, is an executory contract for conveyance of
real property, does not defeat the applicability of Subchapter D of the Texas
Property Code to a real estate transaction described under Tex. Prop. Code § 5.062.
Furthermore, to find that it does undermines Subchapter D’s important policy
considerations and renders the statute ineffective towards serving its intended
purpose by permitting a seller to sidestep the duties and responsibilities thereunder
imposed for a purchaser’s protection.
IX.
ARGUMENTS AND AUTHORITIES
A. The Warranty Deed With Vendor’s Lien Keeps the Contract Executory.
The Parties do not dispute that Subchapter D applies to contracts for deed,
which are clearly executory contracts for conveyance of real property to which
Subchapter D was meant to apply. However, a warranty deed with vendor’s lien,
wherein superior title to the property is retained, has the same legal effect as a
contract for deed. See Norton v. Norton, No. 07-08-0469-CV, at *4 (Tex.App.—
Amarillo 2010, mem. op.). Moreover, a warranty deed with vendor’s lien has for
5
decades been recognized in Texas jurisprudence as an executory sale of real
property where title remains in the seller. Cowden v. Bell, 293 S.W.2d 611, 614
(Tex.App.—San Antonio 1956), aff’d 300 S.W.2d 286 (Tex. 1957) (reservation of
express vendor’s lien is an executory sale with title still in vendor); Zapata v.
Torres, 464 S.W.2d 926, 928 (Tex.App.—Dallas 1971, no writ) (where vendor
reserves lien in deed, contract is executory and superior title remains in vendor);
Walton v. First Nat’l Bank of Trenton, 956 S.W.2d 647, 651 (Tex.App.—
Texarkana 1997, writ denied) (superior title is held by vendor with express lien and
vendee has mere equitable right to acquire title by carrying out the agreement).
Appellee’s adverse contention that actual title is conveyed by and through a
Warranty Deed With Vendor’s Lien is unsupported at law. Rather, as applied to
the facts at issue, the law would clearly find that Appellee retained title to the
property without the obligation of transference until such time as the note secured
by Appellee’s lien was fully repaid in installments over a number of years. This is
the very definition of an executory contract for conveyance of real property as used
by the legislature in Subchapter D of the Texas Property Code. Shook v. Walden,
368 S.W.3d 604, 624 (Tex.App.—Austin 2012, writ denied) (legislature
contemplated “executory contract” to be synonymous with contract for deed,
where a purchaser satisfies a series of obligations over an extended period of time
before seller is obligated to transfer title). Therefore, the real estate transaction
6
between the Parties was unquestionably executory and Subchapter D should apply,
as the requisites for applicability under Tex. Prop. Code § 5.062 were met.
B. The Deed of Trust Did Not Cure the Transaction of Being Executory.
Appellee attempts to make the fact that there exists a Deed of Trust between
the Parties somehow establish that they have a conventional mortgage relationship,
and not an executory one. This is erroneous for two primary reasons: 1) the Deed
of Trust fails to cure the transaction of being executory, since title still has not been
conveyed; and 2) almost none of the protections found in a conventional mortgage
relationship exist in the relationship between the Parties. “Black’s Law Dictionary
defines deed of trust as ‘[a] deed conveying title to real property to a trustee as
security until a grantor repays a loan,’ and it goes on to remark, ‘This type of deed
resembles a mortgage.’” Riner v. Newman, 353 S.W.3d 312, 318 (Tex.App.—
Dallas 2011, no writ). Texas courts have described a deed of trust more simply as
“a mortgage with power to sell on default.” Id. A deed of trust empowers the one
to whom the property is conveyed in trust to sell and convey the property in a
foreclosure sale if the grantor defaults. Id. at 319. Deeds of trust were commonly
found in conventional mortgage transactions, where the seller conveyed full title of
a subject property to the buyer and the buyer, in turn, conveyed said interest to a
trustee, in trust, to secure its loan to the lender. See Flores v. Millenium Interests,
Ltd., 185 S.W.3d 427, 435 (Tex. 2005) (Wainwright, J., concurring op.) (observing
7
in traditional mortgage, legal title is conveyed upon closing). Deeds of trust
enabled mortgagees to foreclose by nonjudicial means upon mortgaged property
and sell such property at auction if the mortgagor defaulted on the underlying loan.
Deeds of trust, therefore, contemplate that the buyer is encumbering full title to the
subject property, with nothing remaining in the seller. Indeed, the conveyance of
full title to the property from a seller to a purchaser, subject to a deed of trust, is a
condition precedent of Tex. Prop. Code § 5.081’s provision that an executory
contract can be converted in such a way that it is no longer executory. See Tex.
Prop. Code § 5.081. However, where a seller retains superior title until the debt is
paid and actual title is not conveyed to the purchaser, they contract remains
incomplete and executory; and it is incongruous to maintain that such a purchaser
can encumber title with the making of a deed of trust.
Secondly, in the conventional mortgage industry, the lender was usually a
financial institution, such as a bank. Such institutions typically provide their
mortgagors with monthly accounting of the status of their loan and, in some cases,
even offer deferments. Mortgage assistance and modification programs are also
available through banks. Mortgagors participating in this system are generally
always aware of the current status of their contractual relationship with their
mortgagees. Conversely, Appellee admits that he never provided Appellant with
any accounting of the payments she made to him over the first seven (7) years after
8
she purchased the property, despite her repeated requests for accountings.
Moreover, after she stopped paying him because he refused to give her any
accounting, she heard nothing from him for another five (5) years before he finally
made demand and sought to foreclose on the property. Hence, for the majority of
its existence, Appellant has been unaware of the status of her contractual
relationship with the Appellee. Yet, Appellee maintains that it is a just result that
Appellant be accorded fewer rights than those granted to persons protected under
Subchapter D of the Texas Property Code, who are entitled to at least entitled to
annual accounting of the status of their account under Tex. Prop. Code § 5.077.
Appellant contends that Subchapter D was enacted to institute in owner-financing
arrangements some of the protections found in the conventional mortgage industry.
Indeed, although Appellee is not expected to mirror the thoroughness and
frequency of accountings Appellant receives from Chase, he is expected to meet
the minimal accounting requirements under § 5.077.
C. Appellee’s Interpretation of Subchapter D Undermines Its Intended
Purpose.
Recognizing the abuses taking place in the owner-financing industry,
particularly in Las Colinas, the Texas Legislature, in enacting Subchapter D,
determined to hold owner-sellers to something akin to the standards enjoyed by
those in the traditional mortgage industry. It granted those buyers in owner-
financing situations the right to notice and an opportunity to cure any default (§§
9
5.063-65), equity protection (§ 5.066), disclosures from the seller (§ 5.069), and
annual statements of account (§ 5.077); items already enjoyed by their
conventional mortgage counterparts. If owner-sellers could avoid applicability of
Subchapter D by simply having buyers execute a real estate lien note and deed of
trust, while still not conveying actual title, the whole purpose of the statute could
be easily avoided and Subchapter D rendered meaningless. A court should not
adopt a construction of a statutory provision that renders it meaningless. See Epco
Holdings, Inc. v. Chicago Bridge & Iron Co., 325 S.W.3d 265, 270 (Tex.App.—
Houston [14th Dist.] 2011, pet. dismissed). By arguing that Subchapter D does not
apply to transactions involving real estate lien notes secured by deeds of trust,
where title is still withheld pending satisfaction of a series of obligations over an
extended period of time, Appellee is espousing a loophole that the statute does not,
and this Court should not, recognize.
D. The Trial Court Ordered Relief Not Requested in Appellee’s Motion.
Appellant hereby objects to the trial court’s ruling to the extent that it grants
relief to Appellee that was not requested in his Motion for Summary Judgment on
Pleadings. A summary judgment on a claim not addressed in the motion is
generally reversible error. G&H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex.
2011). Specifically, the trial court ordered that the Notice of Lis Pendens that
Appellant filed during the pendency of this action is void and of no effect. A
10
finding for this relief was not requested in Appellee’s Motion and should not have
been ruled upon by the trial court. Appellant therefore requests that this Court
reverse this relief and vacate this portion of trial court’s summary judgment order.
X.
PRAYER
WHEREFORE, Appellant prays that this Court reverse the entirety of the
trial court’s grant of summary judgment to Appellee and render judgment in favor
of Appellant on her Motion for Summary Judgment, which includes an award of
damages under Tex. Prop. Code § 5.077; and order such other and further relief to
which Appellant may be justly entitled.
Respectfully submitted,
LAW OFFICE OF TONY A. PITTS
/s/ Tony Pitts
By: _________________________
Tony Pitts
State Bar No. 24060429
P.O. Box 5369
Round Rock, TX 78683
512.825.5545
512.244.4355
tapitts@taplawfirm.com
ATTORNEY FOR APPELLANT,
BOBBIE WHITE
11
XI.
CERTIFICATE OF COMPLIANCE
I hereby certify that there are 1,961 words in this Appellant's Brief,
excluding those words exempted by T.R.A.P. 9.4(i)(l).
Isl Tony Pitts
Tony Pitts
XII.
VERIFICATION
I swear under oath that the factual allegations in the Appellant's Brief are
supported by competent evidence included in the Appendix.
Tony Pitts
.t~tm``,,~ GRACE ALVAREZ
!'~;``\ Notary Public, State of Texas
;~J.\{..:.. § My Commission E1rnent on
Pleadings is GRANTED and all claims and causes of action against said Defendant are hereby
DENIED.
IT IS FURTHER ORDERED that Plaintiff Bobbie White shall take nothing against
Defendant Josephino Bencomo Ill.
IT IS FURTIIER ORDERED the Notice of Lis Pcndcns filed April 16, 2014 pertaining to
the real property described below and recorded as Instnunent Number 2014026975 in the Official
Envelope# 2556759
Public Records of Williamson County Texas is of not force and effect and is hereby canceled and
revoked:
Lot 7, Block "A", of THE SETTLEMENT - SECTION ONE, an addition in and to the
City of Round Rock, in Williamson County, Texas, according to the map or plat recorded in Cabinet
F, Slides 78-79, Plat Records, Williamson County,, Texas, with a local address of 701 Saunders
Drive, Round Rock, Texas 78664.
All relief requested in this case not expressly granted is denied. This judgment finally
disposes of all parties and all claims and is appcalablc.
~
SIGNED on September /2), °2014.
APPROVED AS TO FORM ONLY:
Isl Fred E. Walker
Fred E. Walker
Attorney for Defendant Josephino Bencomo
Email: I'red@fredwalkerlaw.com
609 Castle Ridge Road, Suite 220
Austin, TX 78746
Tel. (512) 330-9977
Fax. (512) 330-1686
Isl Tony A. Pitts
Tony A. Pitts
Attorney for Bobbie White
PO Box 5369
Round Rock, TX 78683
Email: tapitts@taplawfirm.com
Tel. 512-825-5545
Fax. 512-244-4355
EXHIBIT B
Cir:·() , · ,1 ., ; 1:!Ji Georgetown Title Company, Inc.
"
0
10 , tf,lt ~to· f F Cfto #- f.Z, CA5lj{)2--~ O I O cf-f} 7;-JV'
.. -. WARRANTY DEED WITH VENDOR'S LIEN
Date: November 21, 2001
Grantor: JOSEFINO BENCOMO, Ill, owning, occupying and claiming other property as homestead
Grantor's Mailing Address (including county): 4229 Boy Scout Lane, El Paso, El Paso County, Texas 79922
-.:r
'.'·4
Grantee: BOBBIE WIDTE and husband, GEORGE WIDTE
'1'
:0
Grantee's Mailing Address (including county): 701 Saunders Drive, Round Rock, Williamson County, Texas 78664
:0
:J
Fl
:J Consideration: TEN AND N0/100 DOLLARS ($10.00) and other valuable consideration, and the further consideration of
O (i) the execution and delivery of Grantee's one certain promissory note dated of even date, in the principal
="4 sum of $82,600.00, payable to the order of LONG BEACH MORTGAGE COMPANY, in monthly
installments and bearing interest as therein provided, containing the usual clauses providing for acceleration
of maturity and for attorney's fees and secured by a first, primary and superior vendor's lien retained in this
deed and by a first, primary and superior deed of trust of even date from Grantee to TROY GOTSCHALL,
Trustee, and (ii) the execution and delivery of Grantee's one certain promissory note of even date herewith,
in the principal sum of $35,400.00, payable to the order of Granter in monthly installments and bearing
interest as therein provided, containing the usual clauses providing for acceleration of maturity and for
attorney's fees and secured by a second, subordinate and inferior vendor's lien retained in this deed and by a
second, subordinate and inferior deed of trust of even date from Grantee to LARRY MOLINARE, Trustee.
Property (including any improvements):
Lot 7, Block "A", of THE SETTLEMENT - SECTION ONE, an addition in and to the City of Round
Rock, in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet F, Slides 78­
79, Plat Records, Williamson County, Texas.
Reservations from and Exceptions to Conveyance and Warranty:
This conveyance is expressly made and accepted subject to all valid and subsisting easements, restrictions,
reservations, covenants and conditions relating to said Property, to the extent the same are valid and
enforceable against said Property, as same are shown by instruments filed of record in the office of the
County Clerk of Williamson County, Texas.
Grantor, for the consideration and subject to the reservations from and exceptions to conveyance and warranty,
GRANTS, SELLS, and CONVEYS to Grantee the property, together with all and singular the rights and appurtenances
thereto in any wise belonging, TO HAVE AND HOLD it to Grantee, Grantee's heirs, executors, administrators, successors,
or assigns forever. Granter binds Grantor and Grantor's heirs, executors, administrators, and successors to WARRANT and
forever DEFEND all and singular the property to Grantee and Grantee's heirs, executors, administrators, successors, and
assigriS against every person whomsoever lawfully claiming or to claim the same or any part thereof, except as to the
reservations from and exceptions to conveyance and warranty.
The Vendor's lien against and superior title to the property are retained until each note described is fully paid
'Varranty Deed \Vith Vendor 1s Lien
Page 1 of2
GF# 01084646/PF/mmipn
. ,,
.·according to its tenns, at which time this deed shall become absolute. To the extent of $82,600.00, LONG BEACH
MORTGAGE COMPANY, at Grantee's request, has paid in cash to Grantor that portion of the purchase price of the property
that is evidenced by the $82,600.00 note described above, which note is secured by a vendor's lien on the property, which lien
is transferred to that party without recourse on Grantor. It is hereby expressly agreed that the said $35,400.00 note and'all
liens securing the payment of same are second, subordinate, and inferior to the said $82,600.00 note and all liens securing the
payment of same and to any and all renewals and extensions thereof.
By acceptance of this Deed, Grantee assumes payment of all real and personal property taxes on the Property for the
year 2001 and subsequent years.
When the context requires, singular nouns and pronouns include ~e plural.
'<::::;;1 ~ - 'fi 0 JL
roSEfrnOJ3BNcoMo, rn...._
THESTATEOFTEXAS §
§
COUNTY OF ELPASO§
'
This instrument was acknowledged before me on the 27TH day of November, 2001, by.IOSEFlNO BENCOMO,
rn.
NOTARY PUBLIC Notary Public, State of Texas
In and forth! State ofTws
My commlislon expires MY COMMISSION EXPIRES: JULY 31, 2004
07·31·2004 DAVID A. ACUNA
.. (l?r,inted nam~ of Notary)
~niQ; ·-~_i.~ i
Oieor0n +'E>o bb1c: ltJh"l k FILED AND RECORDED
'Cf \ OFFICIAL PUBLIC RECORDS
tOl 5>flU{)ja,rS !Or,
~at '£t;ct, w,, rBtoto ~ 1
,,J~e~v..tM-
11_30_2001 03:40 PM 20010884'?4
ANDERSON $11.00
NANCY E. RISTER ,COUNTY CLtRK
l4ILLIAMSON COUNTY, TEXA"
\Varranty Deed with Vendor 1s Lien
Page2 of2
GF# 01084646/PF/mmlpn
CIH Georgetown Title Co., Inc.
EXHIBIT C
I
I
REAL ESTATE LIEN NOTE
Date: November 21, 2001
Maker: BOBBIE WHITE and husband, GEORGE WHITE
' .
'
Maker's Mailing Address (including County): 701 Saunders Drive, Round Rock, Williamson County, Texas 78664
Payee: JOSEFINO BENCOMO, III
Place for payment (including County): 4229 Boy Scout Lane, El Paso, El Paso County, Texas 79922
Principal Amount: THIRTY-FNE THOUSAND FOUR HUNDRED AND N0/100 DOLLARS ($35,400.00)
\
Annual Interest Rate on Unpaid Principal from date: Ten percent (10%)
Annual Interest Rate on Matured, Unpaid Amounts: Eighteen percent (18%)
Terms of Payment (PrincJpal and Interest): Principal and interest shall be due and payable in monthly installments of Three
Hundred Eighty and 41/100 ($380.41) Dollars or more, payable on the 1st day of each and every month, heginning on January
1, 2002, and continuing regularly and monthly thereafter until December l, 2017, when the entire amount hereof, principal
and interest then remaining unpaid, shall be then due and payable; interest being calculated on the unpaid principal to the date
of each installment paid and the payment made credited first to the Oischarge of the interest accrued and the balance to the
reduction of the principal. · · o
Maker reserves the right to prepay this note in any amount at any time prior to maturity without penalty.
Maker shall pay to Note holder a late charge of five percent (5 %) of any monthly installment not received by the
Note holder by the eighth (8th) day of each month that an installment is due.
SECURITY FOR PAYMENT: A Vendor's Lien expressly retained in deed of even date herewith executed by JOSEFINO
BENCOMO, III to the Makers hereof upon the herein described real property and is additionally secured by a Deed of Trust
to LARRY MOLINARE, Trustee, upon the following described real property, to-wit:
Lot 7, Block "A", of THE SETTLEMENT - SECTION ONE, an addition in and to the City of Round
Rock, in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet F, Slides 78­
79, Plat Records, Williamson County, Texas.
The liens securing the payment of this note shall be and remain secondary and inferior to the liens securing that one certain
promissory note in the original principal amount of $82,600.00, dated of even date, executed by BOBBIE WHITE and
husband, GEORGE WHITE and payable to the order of LONG BEACH MORTGAGE COMPANY.
Maker promises to pay to the order of Payee at the place for payment and according to the terms of payment the
principal amount plus interest at the rates stated above. All unpaid amounts shall be due by the final scheduled payment date.
If Maker defaults in the payment of this note or in the performance of any ob(igation in any instrument securing or
collateral to it, and the default continues after payee gives Maker notice of the default and the time within which it must be
cured, as may be required by law or by written agreement, then Payee may declare the unpaid principal balance and earned
interest on thls note immediately due. Maker and each surety, endorser, and guarantor waive all demands for payment,
Real Estate Lien Note
Page 1 of2
GF# 01084646/PF/mm/pn
('
presentations for payment, notices of intention to accelerate maturity, notices of acceleration of maturity, protests, and notices
of protest, to the extent pennitted. by Jaw.
If this note or any instrument securing or collateral to it is given to an attorney for collection or enforcement, or if
suit is brought for collection or enforcement, or if it is collected or enforced through probate, bankruptcy, or other judicial
proceeding, then Maker shall pay Payee all costs of collection and enforcement, including reasonable attorney's fees and court
costs, in addition to other amounts due. Reasonable attorney's fees shall be 10% of all amounts due unless either party pleads
otherwise.
Interest on the debt evidenced by this note shall not exceed the maximum amount of nonusurious interest that may be
contracted for, taken, reserved, charged, or received under law; any interest in excess of that maximum amount shall be
credited on the principal of the debt, or, if that has been paid, refunded. On any acceleration or required or pennitted
prepayment, any such excess shall be canceled automatically as of the acceleration or prepayment or, if already paid, credited
on the principal of the debt or, if the principal of the debt has been paid, refunded. This provision overrides other provisions
in this and all other instruments concerning the debt. r '
Each maker is responsible for all obligations represented by this note.
When the context requires, singular nouns and pronouns include the plural.
``
fl~#/L
Real Estate Lien Note
Page 2 of2
GF# 01084646/PF/mmlpn
EXHIBIT D
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Grantot: BOBBJE WHITE al!d husband, GEORGE WffiTE
'l) Gnmto~s Malling Address (inoludlnn county)!701 Saundorn Drive, Round Rook, Wllliamson County, Texas 18664
N
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()) Tnistee: LARRY MOLlNARE .t
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O Trustee's MaillngAddicss (inch1ding county): 524 N. Lamar Blvd, 11200, Austin, Travis County, Texas 7870(
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Benefioincy's Malling Address (inOllidu1g county): 4229 Boy Scout Lane, El Paso, El Paso County, Tand, GBORGE WHITE
Pay<": JOSBFINO BENCOMO, ID
FiMI Maturity Date: As stated in said note.
"
Tcrnis of Payment (opp or pint thereof recorded in Cabinet!', Slides 78-79, Plat
Records, Williarrison County, Texas.
Prlor Lien(s) (including recording informalion): This inslrumOnt shall be and remain secondary and inferior to tlte liens se~!i.~l§.1"
B0Bl1Jl!~.]$ifill~1!101>ffily writwn Mmmcn~ then Benefic!acy may:
a, declaretlte unpaid principal balance and camed interest on the Note lmmedia!oly due;
b. toques! Trustco to foreclose lhfa lien, in which case llene!\ctacy or llenel!e!roys agent sh2U give
Dttd9i'I'nm
P2.ge1of 4
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EXHIBIT "J"
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notice oftbe foreclosure wle as ptovided by the Texas Property Code as thetl amended; and
c. purchase the Propmy al any foreclosure sale by offering the highest bid and then have the bid
credited dc as then
armnded;
2. sell and convey all or part of the Propet1y to the highost bidder for cash with a general warranty binding
Ge lawfully seoured by this Deed ofTrmt, payments shall be applied first to
discharge that portion.
6. Orantor assigns lo Beneficiary ail swm payable to or reoeived by Gm1tor from condemnation of all or part of
the Propa)'lllent or, lf akcady paid,
credited on l11e principal of the deb·~ or, if thi; principal of the debt has been pai~ refunded. This provision overrides other
provisions in this and all o!ber ins!nWoenls concerning the debt.
9. \Vhen tl1e context requires, sin~ar nouns and pronouns indude the plural.
I0. The lerm note lnd11d" a\\ sums secured by Uris Deed ofTrust.
11. This Deed ofTrust shall bind, inure to the benefit of, and be exercised by successors in Interest ofall parties,
12. !fGrantor and Mal:er ue not the same pmon, the lettn Grantorshall include Maker.
l3. Grantorroprcsents that this Deed ofl'rost and the Note are given for the following p\llj)oses:
The indebtedness, the payt0IDY E. RISTER ,COUNTY CLERK
4'22. CJ 'f;ol.j Scout. lri · WILLIAllSOH COlltlTYo 1EXAS
~;:~ el fo,so { JY, 1<1'12..c
GFI Qltl2#W!'Flrom!pn
EXHIBIT E
SUBCHAPTER D. EXECUTORY CONTRACT FOR CONVEYANCE
Sec. 5.062. APPLICABILITY. (a) This subchapter applies only to a
transaction involving an executory contract for conveyance of real property used or
to be used as the purchaser's residence or as the residence of a person related to the
purchaser within the second degree by consanguinity or affinity, as determined
under Chapter 573, Government Code. For purposes of this subchapter, and only
for the purposes of this subchapter:
(1) a lot measuring one acre or less is presumed to be residential
property; and
(2) an option to purchase real property that includes or is combined
or executed concurrently with a residential lease agreement, together with the
lease, is considered an executory contract for conveyance of real property.
(b) This subchapter does not apply to the following transactions under an
executory contract:
(1) the sale of state land; or
(2) a sale of land by:
(A) the Veterans' Land Board;
(B) this state or a political subdivision of this state; or
(C) an instrumentality, public corporation, or other entity
created to act on behalf of this state or a political subdivision of this state,
including an entity created under Chapter 303, 392, or 394, Local Government
Code.
(c) This subchapter does not apply to an executory contract that provides
for the delivery of a deed from the seller to the purchaser within 180 days of the
date of the final execution of the executory contract.
(d) Section 5.066 and Sections 5.068-5.080 do not apply to a transaction
involving an executory contract for conveyance if the purchaser of the property:
(1) is related to the seller of the property within the second degree
by consanguinity or affinity, as determined under Chapter 573, Government Code;
and
(2) has waived the applicability of those sections in a written
agreement.
(e) Sections 5.066, 5.067, 5.071, 5.075, 5.081, and 5.082 do not apply to an
executory contract described by Subsection (a)(2).
(f) Notwithstanding any other provision of this subchapter, only the
following sections apply to an executory contract described by Subsection (a)(2) if
the term of the contract is three years or less and the purchaser and seller, or the
purchaser's or seller's assignee, agent, or affiliate, have not been parties to an
executory contract to purchase the property covered by the executory contract for
longer than three years:
(1) Sections 5.063-5.065;
(2) Section 5.073, except for Section 5.073(a)(2); and
(3) Sections 5.083 and 5.085.
(g) Except as provided by Subsection (b), if Subsection (f) conflicts with
another provision of this subchapter, Subsection (f) prevails.
Added by Acts 1995, 74th Leg., ch. 994, Sec. 3, eff. Sept. 1, 1995. Renumbered
from Property Code Sec. 5.091 and amended by Acts 2001, 77th Leg., ch. 693,
Sec. 1, eff. Sept. 1, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 978 (H.B. 1823), Sec. 2, eff. September 1, 2005.
Sec. 5.063. NOTICE. (a) Notice under Section 5.064 must be in writing
and must be delivered by registered or certified mail, return receipt requested. The
notice must be conspicuous and printed in 14-point boldface type or 14-point
uppercase typewritten letters, and must include on a separate page the statement:
NOTICE
YOU ARE NOT COMPLYING WITH THE TERMS OF THE CONTRACT TO
BUY YOUR PROPERTY. UNLESS YOU TAKE THE ACTION SPECIFIED IN
THIS NOTICE BY (date) THE SELLER HAS THE RIGHT TO TAKE
POSSESSION OF YOUR PROPERTY.
(b) The notice must also:
(1) identify and explain the remedy the seller intends to enforce;
(2) if the purchaser has failed to make a timely payment, specify:
(A) the delinquent amount, itemized into principal and
interest;
(B) any additional charges claimed, such as late charges or
attorney's fees; and
(C) the period to which the delinquency and additional
charges relate; and
(3) if the purchaser has failed to comply with a term of the contract,
identify the term violated and the action required to cure the violation.
(c) Notice by mail is given when it is mailed to the purchaser's residence or
place of business. The affidavit of a person knowledgeable of the facts to the effect
that notice was given is prima facie evidence of notice in an action involving a
subsequent bona fide purchaser for value if the purchaser is not in possession of
the real property and if the stated time to avoid the forfeiture has expired. A bona
fide subsequent purchaser for value who relies upon the affidavit under this
subsection shall take title free and clear of the contract.
Acts 1983, 68th Leg., p. 3485, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts
1993, 73rd Leg., ch. 444, Sec. 1, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 994,
Sec. 2, eff. Sept. 1, 1995. Renumbered from Property Code Sec. 5.062 and
amended by Acts 2001, 77th Leg., ch. 693, Sec. 1, eff. Sept. 1, 2001.
Sec. 5.064. SELLER'S REMEDIES ON DEFAULT. A seller may enforce
the remedy of rescission or of forfeiture and acceleration against a purchaser in
default under an executory contract for conveyance of real property only if:
(1) the seller notifies the purchaser of:
(A) the seller's intent to enforce a remedy under this section;
and
(B) the purchaser's right to cure the default within the 30-day
period described by Section 5.065;
(2) the purchaser fails to cure the default within the 30-day period
described by Section 5.065; and
(3) Section 5.066 does not apply.
Acts 1983, 68th Leg., p. 3484, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts
1995, 74th Leg., ch. 994, Sec. 2, eff. Sept. 1, 1995. Renumbered from Property
Code Sec. 5.061 and amended by Acts 2001, 77th Leg., ch. 693, Sec. 1, eff. Sept.
1, 2001. Amended by Acts 2003, 78th Leg., ch. 959, Sec. 1, eff. Sept. 1, 2003.
Sec. 5.065. RIGHT TO CURE DEFAULT. Notwithstanding an agreement
to the contrary, a purchaser in default under an executory contract for the
conveyance of real property may avoid the enforcement of a remedy described by
Section 5.064 by complying with the terms of the contract on or before the 30th
day after the date notice is given under that section.
Acts 1983, 68th Leg., p. 3485, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts
1995, 74th Leg., ch. 994, Sec. 2, eff. Sept. 1, 1995. Renumbered from Property
Code Sec. 5.063 and amended by Acts 2001, 77th Leg., ch. 693, Sec. 1, eff. Sept.
1, 2001. Amended by Acts 2003, 78th Leg., ch. 959, Sec. 2, eff. Sept. 1, 2003.
Sec. 5.066. EQUITY PROTECTION; SALE OF PROPERTY. (a) If a
purchaser defaults after the purchaser has paid 40 percent or more of the amount
due or the equivalent of 48 monthly payments under the executory contract, the
seller is granted the power to sell, through a trustee designated by the seller, the
purchaser's interest in the property as provided by this section. The seller may not
enforce the remedy of rescission or of forfeiture and acceleration.
(b) The seller shall notify a purchaser of a default under the contract and
allow the purchaser at least 60 days after the date notice is given to cure the
default. The notice must be provided as prescribed by Section 5.063 except that
the notice must substitute the following statement:
NOTICE
YOU ARE NOT COMPLYING WITH THE TERMS OF THE CONTRACT TO
BUY YOUR PROPERTY. UNLESS YOU TAKE THE ACTION SPECIFIED IN
THIS NOTICE BY (date) A TRUSTEE DESIGNATED BY THE SELLER HAS
THE RIGHT TO SELL YOUR PROPERTY AT A PUBLIC AUCTION.
(c) The trustee or a substitute trustee designated by the seller must post,
file, and serve a notice of sale and the county clerk shall record and maintain the
notice of sale as prescribed by Section 51.002. A notice of sale is not valid unless
it is given after the period to cure has expired.
(d) The trustee or a substitute trustee designated by the seller must conduct
the sale as prescribed by Section 51.002. The seller must:
(1) convey to a purchaser at a sale conducted under this section fee
simple title to the real property; and
(2) warrant that the property is free from any encumbrance.
(e) The remaining balance of the amount due under the executory contract
is the debt for purposes of a sale under this section. If the proceeds of the sale
exceed the debt amount, the seller shall disburse the excess funds to the purchaser
under the executory contract. If the proceeds of the sale are insufficient to
extinguish the debt amount, the seller's right to recover the resulting deficiency is
subject to Sections 51.003, 51.004, and 51.005 unless a provision of the executory
contract releases the purchaser under the contract from liability.
(f) The affidavit of a person knowledgeable of the facts that states that the
notice was given and the sale was conducted as provided by this section is prima
facie evidence of those facts. A purchaser for value who relies on an affidavit
under this subsection acquires title to the property free and clear of the executory
contract.
(g) If a purchaser defaults before the purchaser has paid 40 percent of the
amount due or the equivalent of 48 monthly payments under the executory
contract, the seller may enforce the remedy of rescission or of forfeiture and
acceleration of the indebtedness if the seller complies with the notice requirements
of Sections 5.063 and 5.064.
Added by Acts 1995, 74th Leg., ch. 994, Sec. 3, eff. Sept. 1, 1995. Renumbered
from Property Code Sec. 5.101 and amended by Acts 2001, 77th Leg., ch. 693,
Sec. 1, eff. Sept. 1, 2001.
Sec. 5.069. SELLER'S DISCLOSURE OF PROPERTY CONDITION. (a)
Before an executory contract is signed by the purchaser, the seller shall provide the
purchaser with:
(1) a survey, which was completed within the past year, or plat of a
current survey of the real property;
(2) a legible copy of any document that describes an encumbrance or
other claim, including a restrictive covenant or easement, that affects title to the
real property; and
(3) a written notice, which must be attached to the contract,
informing the purchaser of the condition of the property that must, at a minimum,
be executed by the seller and purchaser and read substantially similar to the
following:
WARNING
IF ANY OF THE ITEMS BELOW HAVE NOT BEEN CHECKED, YOU MAY
NOT BE ABLE TO LIVE ON THE PROPERTY.
SELLER'S DISCLOSURE NOTICE
CONCERNING THE PROPERTY AT (street address or legal description and
city)
THIS DOCUMENT STATES CERTAIN APPLICABLE FACTS ABOUT THE
PROPERTY YOU ARE CONSIDERING PURCHASING.
CHECK ALL THE ITEMS THAT ARE APPLICABLE OR TRUE:
_____ The property is in a recorded subdivision.
_____ The property has water service that provides potable water.
_____ The property has sewer service.
_____ The property has been approved by the appropriate municipal, county, or
state agency for installation of a septic system.
_____ The property has electric service.
_____ The property is not in a floodplain.
_____ The roads to the boundaries of the property are paved and maintained by:
_____ the seller;
_____ the owner of the property on which the road exists;
_____ the municipality;
_____ the county; or
_____ the state.
_____ No individual or entity other than the seller:
(1) owns the property;
(2) has a claim of ownership to the property; or
(3) has an interest in the property.
_____ No individual or entity has a lien filed against the property.
_____ There are no restrictive covenants, easements, or other title exceptions or
encumbrances that prohibit construction of a house on the property.
NOTICE: SELLER ADVISES PURCHASER TO:
(1) OBTAIN A TITLE ABSTRACT OR TITLE COMMITMENT
COVERING
THE PROPERTY AND HAVE THE ABSTRACT OR COMMITMENT
REVIEWED
BY AN ATTORNEY BEFORE SIGNING A CONTRACT OF THIS
TYPE; AND
(2) PURCHASE AN OWNER'S POLICY OF TITLE INSURANCE
COVERING THE PROPERTY.
_____________________________ ______________________________
(Date) (Signature of Seller)
_____________________________ ______________________________
(Date) (Signature of Purchaser)
(b) If the property is not located in a recorded subdivision, the seller shall
provide the purchaser with a separate disclosure form stating that utilities may not
be available to the property until the subdivision is recorded as required by law.
(c) If the seller advertises property for sale under an executory contract, the
advertisement must disclose information regarding the availability of water, sewer,
and electric service.
(d) The seller's failure to provide information required by this section:
(1) is a false, misleading, or deceptive act or practice within the
meaning of Section 17.46, Business & Commerce Code, and is actionable in a
public or private suit brought under Subchapter E, Chapter 17, Business &
Commerce Code; and
(2) entitles the purchaser to cancel and rescind the executory
contract and receive a full refund of all payments made to the seller.
(e) Subsection (d) does not limit the purchaser's remedy against the seller
for other false, misleading, or deceptive acts or practices actionable in a suit
brought under Subchapter E, Chapter 17, Business & Commerce Code.
Added by Acts 1995, 74th Leg., ch. 994, Sec. 3, eff. Sept. 1, 1995. Renumbered
from Property Code Sec. 5.094 and amended by Acts 2001, 77th Leg., ch. 693,
Sec. 1, eff. Sept. 1, 2001.
Sec. 5.070. SELLER'S DISCLOSURE OF TAX PAYMENTS AND
INSURANCE COVERAGE. (a) Before an executory contract is signed by the
purchaser, the seller shall provide the purchaser with:
(1) a tax certificate from the collector for each taxing unit that
collects taxes due on the property as provided by Section 31.08, Tax Code; and
(2) a legible copy of any insurance policy, binder, or other evidence
relating to the property that indicates:
(A) the name of the insurer and the insured;
(B) a description of the property insured; and
(C) the amount for which the property is insured.
(b) The seller's failure to provide information required by this section:
(1) is a false, misleading, or deceptive act or practice within the
meaning of Section 17.46, Business & Commerce Code, and is actionable in a
public or private suit brought under Subchapter E, Chapter 17, Business &
Commerce Code; and
(2) entitles the purchaser to cancel and rescind the executory
contract and receive a full refund of all payments made to the seller.
(c) Subsection (b) does not limit the purchaser's remedy against the seller
for other false, misleading, or deceptive acts or practices actionable in a suit
brought under Subchapter E, Chapter 17, Business & Commerce Code.
Added by Acts 2001, 77th Leg., ch. 693, Sec. 1, eff. Sept. 1, 2001.
Sec. 5.077. ANNUAL ACCOUNTING STATEMENT. (a) The seller
shall provide the purchaser with an annual statement in January of each year for
the term of the executory contract. If the seller mails the statement to the
purchaser, the statement must be postmarked not later than January 31.
(b) The statement must include the following information:
(1) the amount paid under the contract;
(2) the remaining amount owed under the contract;
(3) the number of payments remaining under the contract;
(4) the amounts paid to taxing authorities on the purchaser's behalf if
collected by the seller;
(5) the amounts paid to insure the property on the purchaser's behalf
if collected by the seller;
(6) if the property has been damaged and the seller has received
insurance proceeds, an accounting of the proceeds applied to the property; and
(7) if the seller has changed insurance coverage, a legible copy of
the current policy, binder, or other evidence that satisfies the requirements of
Section 5.070(a)(2).
(c) A seller who conducts less than two transactions in a 12-month period
under this section who fails to comply with Subsection (a) is liable to the purchaser
for:
(1) liquidated damages in the amount of $100 for each annual
statement the seller fails to provide to the purchaser within the time required by
Subsection (a); and
(2) reasonable attorney's fees.
(d) A seller who conducts two or more transactions in a 12-month period
under this section who fails to comply with Subsection (a) is liable to the purchaser
for:
(1) liquidated damages in the amount of $250 a day for each day
after January 31 that the seller fails to provide the purchaser with the statement, but
not to exceed the fair market value of the property; and
(2) reasonable attorney's fees.
Added by Acts 1995, 74th Leg., ch. 994, Sec. 3, eff. Sept. 1, 1995. Renumbered
from Property Code Sec. 5.100 and amended by Acts 2001, 77th Leg., ch. 693,
Sec. 1, eff. Sept. 1, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 978 (H.B. 1823), Sec. 5, eff. September 1, 2005.
Sec. 5.081. RIGHT TO CONVERT CONTRACT. (a) A purchaser, at any
time and without paying penalties or charges of any kind, is entitled to convert the
purchaser's interest in property under an executory contract into recorded, legal
title in accordance with this section.
(b) If the purchaser tenders to the seller an amount of money equal to the
balance of the total amount owed by the purchaser to the seller under the executory
contract, the seller shall transfer to the purchaser recorded, legal title of the
property covered by the contract.
(c) Subject to Subsection (d), if the purchaser delivers to the seller of
property covered by an executory contract a promissory note that is equal in
amount to the balance of the total amount owed by the purchaser to the seller under
the contract and that contains the same interest rate, due dates, and late fees as the
contract:
(1) the seller shall execute a deed containing any warranties required
by the contract and conveying to the purchaser recorded, legal title of the property;
and
(2) the purchaser shall simultaneously execute a deed of trust that:
(A) contains the same terms as the contract regarding the
purchaser's and seller's duties concerning the property;
(B) secures the purchaser's payment and performance under
the promissory note and deed of trust; and
(C) conveys the property to the trustee, in trust, and confers
on the trustee the power to sell the property if the purchaser defaults on the
promissory note or the terms of the deed of trust.
(d) On or before the 10th day after the date the seller receives a promissory
note under Subsection (c) that substantially complies with that subsection, the
seller shall:
(1) deliver to the purchaser a written explanation that legally
justifies why the seller refuses to convert the purchaser's interest into recorded,
legal title under Subsection (c); or
(2) communicate with the purchaser to schedule a mutually
agreeable day and time to execute the deed and deed of trust under Subsection (c).
(e) A seller who violates this section is liable to the purchaser in the same
manner and amount as a seller who violates Section 5.079 is liable to a purchaser.
This subsection does not limit or affect any other rights or remedies a purchaser
has under other law.
(f) On the last date that all of the conveyances described by Subsections
(b) and (c) are executed, the executory contract:
(1) is considered completed; and
(2) has no further effect.
(g) The appropriate use of forms published by the Texas Real Estate
Commission for transactions described by this section constitutes compliance with
this section.
Added by Acts 2005, 79th Leg., Ch. 978 (H.B. 1823), Sec. 6, eff. September 1,
2005.
EXHIBIT F
Filed: 7/18/2014 1:19:17 PM
Lisa David, District Clerk
Williamson County, Texas
Sharee Allison
CAUSE NO. 14-0374-C26
BOBBIE WHITE, § IN THE DISTRICT COURT
§
Plaintiff, §
§
VS. § 26TH JUDICIAL DISTRICT
§
JOSEFINO BENCOMO III, §
§
Defendant. § WILLIAMSON COUNTY, TEXAS
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES, in the above-captioned cause, Bobbie White, Plaintiff herein, who files
this Motion for Summary Judgment, and would respectfully show the Court as follows:
I.
INTRODUCTION AND SUMMARY OF MOTION
Plaintiff brought suit against the Defendant seeking to set aside Defendant’s foreclosure
sale of her home, as well as liquidated damages for Defendant’s failure to comply with Tex. Prop.
Code § 5.077. Because Defendant voluntarily rescinded the foreclosure sale of Plaintiff’s home
after the temporary injunction hearing in this cause, Plaintiff’s suit to quiet title cause of action has
been rendered moot. As for Plaintiff’s claim that Defendant failed to comply with § 5.077,
Defendant does not deny his noncompliance, but rather challenges this statute’s applicability to
him. Therefore, because there is no genuine issue of material fact in dispute concerning
Defendant’s failure to comply with § 5.077, and this statute does apply to Defendant, Plaintiff is
entitled to summary judgment against Defendant awarding her liquidated damages and attorney’s
fees thereunder as a matter of law.
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT – PAGE 1 OF 7
II.
EVIDENCE
A. Defendant’s Response to Plaintiff’s First Requests for Admissions.
B. Affidavit of Bobbie White.
C. Affidavit of Tony A. Pitts.
III.
FACTUAL BACKGROUND
3.1 Mrs. White and her husband, George White, purchased a house from Defendant
Josefino Bencomo III, located at 701 Saunders Dr., Round Rock, TX 78664 (the “House”), in
November 2001. The House was to be used as their permanent residence. The Whites and
Bencomo are not related.
3.2 The agreed upon purchase price of the House was $118,000.00. To purchase the
House, the Whites took out a mortgage with Long Beach Mortgage Company for $82,600.00, who
acquired a primary purchase money mortgage lien on the House. This mortgage and its
corresponding lien was subsequently assigned to JPMorgan Chase Bank, N.A. (“Chase”). The
Whites also executed a Real Estate Lien Note for $35,400.00 in favor of Bencomo, who obtained a
purchase money mortgage lien on the House secondary to Chase’s lien.
3.3 Bencomo conveyed the House to the Whites via Warranty Deed with Vendor’s
Lien, wherein he retained superior title to the House over that of the Whites until his lien was
satisfied. The Whites thereafter began paying the purchase money mortgages as agreed.
3.4 Mrs. White lost her husband unexpectedly in December 2003. Thereafter, she had
considerable difficulty paying the mortgages and decided to sell the House. Chase, however,
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT – PAGE 2 OF 7
worked with Mrs. White to modify its mortgage loan so she and her family could afford to stay in
the House. Mrs. White reached out to Bencomo to lower his interest rate as well, but he refused.
3.5 Over the years, it bothered Mrs. White that Bencomo never gave her any statements
showing what she had paid on his mortgage and what she had left to pay, nor did he give her any
tax statements by January 31 of each year, like those she received from Chase, showing the
mortgage interest she had paid for the previous year, which she very much wanted to write off
when she filed her federal income tax returns.
3.6 When Mrs. White approached Bencomo about these concerns, she found him
unwilling to remedy his failure to provide her with annual statements. And in the course of her
dealings with Bencomo on this issue, it appeared to Mrs. White that Bencomo was using the
House on his own taxes for improper purposes. At this point, Mrs. White had made at least 72
monthly payments to Bencomo. But, given his refusal to account for her payments and seemingly
shady accounting with respect to the House, she stopped making payments to him in 2008.
IV.
ARGUMENTS AND AUTHORITIES
A. Standard of Proof.
Summary judgment may be obtained under Rule 166a of the Texas Rules of Civil
Procedure if the movant shows that there is no genuine issue of material fact and it is entitled to
summary judgment as a matter of law. National Cas. Co. v. Lane Exp., Inc., 998 S.W.2d 256, 259
(Tex. App.—Dallas 1999). After the movant produces evidence entitling it to summary judgment,
the burden then shifts to the nonmovant to produce evidence that would preclude summary
judgment or raise a fact issue. Coats v. Ruiz, 198 S.W.3d 863, 878 (Tex.App.—Dallas 2006, no
writ). The summary judgment rule is intended to dispose of a matter that involves only a question
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT – PAGE 3 OF 7
of law, not to deprive a litigant of the right to a hearing on any real fact issue. Jones, Day, Reavis
& Pogue v. Aetna Life Ins. Co., No. 05-96-01565-CV, 1998 WL 401714, at *1, *2 (Tex. App.—
Dallas July 20, 1998).
B. Defendant Has Admitted Noncompliance with Tex. Prop. Code § 5.077.
4.1 Plaintiff served upon the Defendant requests for admission pursuant to T.R.C.P.
198. Defendant’s responses to these Requests for Admission are attached hereto as Exhibit “A.”
In his responses, Defendant admits that he did not provide Plaintiff with an annual statement of
her account with him from 2002 – 2012. And, in fact, Defendant has never provided Plaintiff with
an annual statement of her account (See Exhibit “B,” attached hereto). Therefore, there is no
genuine issue of material fact in dispute concerning Defendant’s failure to comply with § 5.077.
C. Tex. Prop. Code § 5.077 Does Apply to Defendant’s Transaction with the Plaintiff.
4.2 Tex. Prop. Code § 5.077 is contained within Subchapter D of the Texas Property
Code, which applies to situations where an owner enters into an executory contract to finance, in
whole or in part, a buyer’s purchase of real property to be used as the buyer’s residence. See Tex.
Prop. Code § 5.061(a). Subsections (b)-(f) of § 5.061 exempt or limit the applicability of the
Subchapter D for certain executory contracts. See Tex. Prop. Code § 5.061(b)-(f).
4.3 There is no dispute amongst the parties that the House is real property and that
Defendant, who was the owner of the House, sold it to Plaintiff for use as her residence, and that
they are not related. There is also no dispute amongst the parties that Defendant obtained from
Plaintiff a Real Estate Lien Note that was to be paid in installments over a 15-year period (the
“Note”) and a Deed of Trust to secure the Note against the House. Furthermore, there is no
dispute amongst the parties that Defendant conveyed the House to Plaintiff via a Warranty Deed
with Vendor’s Lien wherein he retained superior title to the House until the Note was satisfied.
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT – PAGE 4 OF 7
4.4 None of the situations or circumstances exempted, or for which applicability of
Subchapter D is limited, under §5.061 pertain to the arrangement between the parties in this cause
as enunciated above. In fact, their transaction falls squarely within that contemplated by Tex.
Prop. Code § 5.061(a). See Shook v. Walden, 368 S.W.3d 604 (Tex.App.—Austin 2012, writ
denied) (legislature contemplated “executory contract” to be where a purchaser satisfies a serious
of obligations over an extended period of time before seller is obligated to transfer title); see also
Zapata v. Torres, 464 S.W.2d 926, 928 (Tex.App.—Dallas 1971, no writ) (long been established
that seller’s reservation of a vendor’s lien retaining superior title in his deed renders the contract
executory). Therefore, the entirety of Subchapter D applies to their transaction.
D. Plaintiff is Entitled to Liquidated Damages Under Tex. Prop. Code § 5.077.
4.5 Tex. Prop. Code § 5.077 mandates that a seller provide a purchaser with an annual
statement by January 31st of each year of the executory contract that details: 1) the amount paid
under the contract; 2) the remaining amount owed under the contract; 3) the number of payments
remaining under the contract; 4) the amounts paid to taxing authorities on the purchaser’s behalf if
collected by the seller; 5) the amount paid to insure the property on purchaser’s behalf if collected
by the seller; 6) if the property has been damaged and the seller has received insurance proceeds,
an accounting of the proceeds applied to the property; and 7) if the seller has changed insurance
coverage, a legible copy of the current policy. Tex. Prop. Code § 5.077(a)&(b). Courts have
traditionally held that a seller need not strictly comply with § 5.077, so long as they make a “good
faith attempt” to do so. See Flores v. Millenium Interests, Ltd., 185 S.W.3d 427, 434 (Tex. 2005)
(liquidated damages under § 5.077 not triggered “unless statement is so deficient as to be
something other than a good faith attempt by seller to inform purchaser of the current status of
their contractual relationship”). In the instant matter, however, Defendant has admittedly made no
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT – PAGE 5 OF 7
attempt whatsoever to comply with § 5.077. He has never sent Plaintiff a single annual statement
of her account, not even a deficient one, informing her of the status of their contractual
relationship. Incidentally, Chase regularly sent Plaintiff such statements. The intended effect of §
5.077 is to hold Defendant to that same standard.
4.6 A seller who conducts less than two sales transactions in a 12-month period and
who fails to provide the purchaser with annual statements as required by § 5.077(a) is liable to the
purchaser for: 1) liquidated damages in the amount of $100 for each annual statement the seller
failed to provide; and 2) reasonable attorney’s fees. Tex. Prop. Code § 5.077(c). Defendant
denies conducting more than two sales transactions in the 12-month period before or after he sold
the House to Plaintiff, and Plaintiff has adduced no evidence indicating that Defendant engaged in
two or more sales transactions. Therefore, because Defendant has not provided Plaintiff with a
single annual statement for the last 13 years of their executory contract, he is liable to her for
$1,300.00, plus reasonable attorney’s fees.
V.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff Bobbie White respectfully requests
that the Court grant her the following relief:
a. liquidated damages as provided by Tex. Prop. Code § 5.077;
b. costs of court and reasonable and necessary attorney’s fees; and
c. such other and further relief, both at law and in equity, to which she may show
herself to be justly entitled.
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT – PAGE 6 OF 7
Respectfully submitted,
LAW OFFICE OF TONY A. PITTS
/s/ Tony Pitts
By: ______________________________
Tony Pitts
State Bar No. 24060429
P.O. Box 5369
Round Rock, TX 78683
512.825.5545
512.244.4355 (Fax)
ATTORNEY FOR PLAINTIFF,
BOBBIE WHITE
NOTICE OF HEARING
Please take note that this motion has been set for hearing on August 12, 2014, at 1:30 p.m.,
before the 26th Judicial District Court of Williamson County, Texas.
/s/ Tony Pitts
_____________________________________
Tony Pitts
CERTIFICATE OF SERVICE
I hereby certify that on this the 18th day of July 2014, a true and correct copy of the
foregoing document was delivered via facsimile to the following counsel of record:
Fred Walker
Kimberly Nash
Fred E. Walker, P.C.
609 Castle Ridge Road, Ste. 220
Austin, TX 78746
512.330.1686 (Fax)
Attorneys for Defendant
/s/ Tony Pitts
___________________________________________
Tony Pitts
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT – PAGE 7 OF 7
From: Fred Walker Fax: (512) 649-3030 To: Tony Pitts Fax: +1 (512) 244.4355 Page 2 of 1208/09/2014 4:14
NO. 14·0374·C26
BOBBIE WHITE § IN THE DISTRICT COURT
Plaintiff, §
§
v. § 26TH JUDICIAL DISTRICT
§
JOSEFINO BENCOMO III §
Defendant. § OF WILLIAMSON COUNTY, TEXAS
DEFENDANT'S RESPONSE TO PLAINTIFF'S
FIRST REQUESTS FOR ADMISSIONS
TO: Bobbie White, Plaintiff, by and through Plaintiff's attorney of record, Tony A.
Pitts
NOW COMES Josefino Bencomo Ill, Defendant, and responds to the Requests
fo1• Admissions propounded l>y Bobbi~ White pursuant to Rule 198 of the Texas Rules
of Civil Procedure.
Respectfully submitted,
FREDE. WALKER, P.C.
By:r;;;_~
Fred E. Walker
Texas Dar No. 20700400
609 Castle Ridge Road, Suite 220 ·
Austin, TX 78746
Tel. (512) 330-9977
Fax. (512) 330-1686
Attorney for Defendant
Josefino Bencomo llI
\
EXHIBIT jj_ r
I``
'',
From: Fred Walker Fax: (512) 649-3030 To: Tony Pitts Fax: +1 (612) 244-4355 Page 3 of 1206/0912014 4:14
CERTIFICATE OF SERVICE
~
'..)J('){ 9
I certlfy UtUt on ,M1ty ( 2014 a true and correct copy of Defendant's
Re$ponse to .Requests for Admissions wiis served by fax on Tony A. Pills at
512-244-4355.
Fred R. Walker
\
cXHIBIT k -i ``
To: Tony Pitts Fax: +1 (512) 244-4355 Page 4 of 1206/09/2014 4:14
From: Fred Walker Fax: (512) 649-3030
RESPONSES TO REQUESTS FOR ADMISSIONS
1. Admit or deny that YOU are in the business of flipping residential properties
for profit.
RESPONSE: DENIED
2. Admit or deny that the PROPERTY was sold to my client in the course of
YOUR business of FLIPPING residential properties for profit.
RESPONSE: DEN!EIJ
3, Admit 01· deny that YOU FLIPPED 2 or more properties and 2000.
REsPONSE: DENIED
4. Admit or deny that YOU FLIPPED 2 or more properties and 2001.
RESPONS!l: DENIED
5. Admit or deny !hot YOU FLIPPED 2 01· more properties and 2002.
RESPONSE: DENlED
6. Admit or deny that YOU have not provided Plaintiff with a statement showing
what she has paid YOU thus far and what she has left to pay on her mortgage with
YOU since January 2002.
RESPONSE: DENIED
7. Admit or deny that YOU did not provide Plaintiff with an atmual sh1temenl of
her account with YOU in 2002, 2003, 2004, 2005, 2006, 20071 2008, 2009, 2010, 2011, or
2012.
RESPONSE: ADMJ'ITED
8. Admit or deny !hut YOU refused one or more of Plaintiffs' i·equest for a
From: Fred Walker Fax: (512) 649-3030 To: Tony Pitts Fax: +1 (512) 244-4355 Page 5 of 1206/0912014 4:14
statement of her accotmt with YOU.
RESPONSE: DENIED
VERIFICATION
STATE OF TEXAS §
§
COUNTY OF EL PASO §
BEFORE ME, the undersigned authority, personally appeared Josefina Bencomo
Ill, who stated, upon oath, that the statements made in the foregoing instrument are
trne and correct.
Josefina Bencomo Ill
. 293 S.W.2d 611, 614 (Tex.App.—San Antonio
MOTION FOR RECONSIDERATION – PAGE 2 OF 8
1956), aff’d 300 S.W.2d 286 (Tex. 1957) (reservation of express vendor’s lien is an executory sale
with title still in vendor); Zapata v. Torres, 464 S.W.2d 926, 928 (Tex.App.—Dallas 1971, no
writ) (where vendor reserves lien in deed, contract is executory and superior title remains in
vendor); Walton v. First Nat’l Bank of Trenton, 956 S.W.2d 647, 651 (Tex.App.—Texarkana
1997, writ denied) (superior title is held by vendor with express lien and vendee has mere
equitable right to acquire title by carrying out the agreement). Therefore, Defendant’s argument
that actual title was conveyed to Plaintiff by and through his Warranty Deed With Vendor’s Lien
is unsupported at law. Rather, the law would clearly find that Defendant retained title to the
property without obligation of transference until such time as the note secured by Defendant’s lien
was fully repaid in installments over a number of years. This is the very definition of an executory
contract for conveyance of real property as used by the legislature in Subchapter D of the Texas
Property Code. Shook v. Walden, 368 S.W.3d 604, 624 (Tex.App.—Austin 2012, writ denied)
(legislature contemplated “executory contract” to be synonymous with contract for deed, where a
purchaser satisfies a series of obligations over an extended period of time before seller is obligated
to transfer title). Therefore, the real estate transaction between the Parties was unquestionably
executory and Subchapter D should apply, as the requisites for applicability under Tex. Prop.
Code § 5.061 are all met.
B. The Deed of Trust In This Cause Does Not Cure the Transaction of Being Executory.
Defendant attempts to make the fact that there exists a Deed of Trust between the Parties
somehow establish that they have conventional mortgage relationship, not an executory one. This
is erroneous for two primary reasons: 1) the Deed of Trust fails to make the transaction not
executory, because title has still not been conveyed; and 2) almost none of the protections found in
a conventional mortgage relationship exist in the relationship between the Parties. “Black’s Law
MOTION FOR RECONSIDERATION – PAGE 3 OF 8
Dictionary defines deed of trust as ‘[a] deed conveying title to real property to a trustee as security
until a grantor repays a loan,’ and it goes on to remark, ‘This type of deed resembles a mortgage.’”
Riner v. Newman, 353 S.W.3d 312, 318 (Tex.App.—Dallas 2011, no writ). Texas courts have
described a deed of trust more simply as “a mortgage with power to sell on default.” Id. A deed
of trust empowers the one to whom the property is conveyed in trust to sell and convey the
property in a foreclosure sale if the grantor defaults. Id. at 319. Deeds of trust were commonly
found in conventional mortgage transactions, where the seller conveyed full title of a subject
property to the buyer and the buyer, in turn, conveyed said interest to a trustee, in trust, to secure
its loan to the lender. Deeds of trust enabled mortgagees to foreclose by nonjudicial means upon
mortgaged property and sell it at auction if the mortgagor defaulted on the underlying loan. Deeds
of trust, therefore, contemplate that the buyer is encumbering full title to the subject property, with
nothing remaining in the seller. Indeed, the conveyance of full title to the property from a seller to
a purchaser, subject to a deed of trust, is a condition precedent of Tex. Prop. Code § 5.081’s
provision that an executory contract can be converted in such a way that it is no longer executory.
However, where a vendor retains superior title until the debt is paid and actual title is not
conveyed to the purchaser, whom cannot therefore encumber the same in a deed of trust, the
contract remains incomplete and executory. See Tex. Prop. Code § 5.081.
Secondly, in the conventional mortgage industry, the lender was usually a financial
institution, such as a bank. Such institutions typically provide their mortgagors with monthly
accounting of the status of their loan and, in some cases, even offer deferments. Mortgage
assistance and modification programs are also available through banks. Mortgagors participating
in this system are generally always aware of the current status of their contractual relationship
with their lending institution. Conversely, Defendant admits that he never provided Plaintiff with
MOTION FOR RECONSIDERATION – PAGE 4 OF 8
any accounting of the payments she made to him over the first seven (7) years after she purchased
the property, despite her repeated requests for accountings. Moreover, after she stopped paying
him because he refused to give her any accounting, she heard nothing from him for another five
(5) years before he finally made demand and sought to foreclose on the property. Hence, for the
majority of its existence, Plaintiff has been unaware of the status of her contractual relationship
with the Defendant. And Defendant is essentially arguing that it is a just result that Plaintiff have
fewer rights than those accorded to persons protected under Subchapter D of the Texas Property
Code, who are entitled to annual accounting of the status of their account, when that statute was
enacted to institute in owner-financing arrangements some of the protections found in the
conventional mortgage industry. Indeed, the only thing conventional about the transaction
between Plaintiff and Defendant is that it reflects the type of executory contract for conveyance
Subchapter D was designed to cover.
C. Defendant’s Interpretation of Subchapter D Undermines Its Purpose.
The legislative intent of Subchapter D is to provide the similar protections and disclosures
in owner-financing scenarios as those found in the conventional mortgage industry. Defendant
does well in exploring what gave rise to Subchapter D, while missing entirely its purpose.
Recognizing the abuses taking place in the owner-financing industry, particularly in Las Colinas,
the Texas Legislature, in enacting Subchapter D, determined to hold owner-sellers to something
akin to the standards enjoyed by those in the traditional mortgage industry. It granted those buyers
in owner-financing situations the right to notice and an opportunity to cure any default (§§ 5.063-
65), equity protection (§ 5.066), disclosures from the seller (§ 5.069), and annual statements of
account (§ 5.077); items already enjoyed by their convential mortgage counterparts. If owner-
sellers could avoid applicability of Subchapter D by simply having buyers execute a real estate
MOTION FOR RECONSIDERATION – PAGE 5 OF 8
lien note and deed of trust, while still not conveying actual title, the whole purpose of the statute
could be easily avoided and Subchapter D rendered meaningless. A court should not adopt a
construction of a statutory provision that renders it meaningless. See Epco Holdings, Inc. v.
Chicago Bridge & Iron Co., 325 S.W.3d 265, 270 (Tex.App.—Houston [14th Dist.] 2011, pet.
dismissed). Therefore, by espousing that Subchapter D does not apply to transactions involving
real estate lien notes secured by deeds of trust, where title is still withheld pending satisfaction of a
series of obligations over an extended period of time, Defendant is arguing for a loophole that the
statute does not, and this Court should not, recognize.
D. The Court Ordered Relief Not Requested in Defendant’s Motion.
Plaintiff hereby objects to the Court’s ruling to the extent that it grants relief to Defendant
that was not requested in his Motion for Summary Judgment on Pleadings. A summary judgment
on a claim not addressed in the motion is generally reversible error. G&H Towing Co. v. Magee,
347 S.W.3d 293, 297 (Tex. 2011). Specifically, the Court ordered that the Notice of Lis Pendens
that Plaintiff filed during the pendency of this action is void and of no effect. A finding for this
relief was not requested in Defendant’s Motion and should not have been issued by the Court.
Plaintiff therefore requests that the Court vacate this portion of its order.
IV.
CONCLUSION
Subchapter D of the Texas Property Code clearly applies to Defendant’s real property
transaction with Plaintiff, because it was executory, since title to the property was withheld
pending fulfillment of the installment payments due on the note. Defendant must therefore
comply with Subchapter D as it pertains to the giving of notice and an opportunity to cure found
under §§ 5.063-5.066, as well as the giving of annual statements found under § 5.077.
MOTION FOR RECONSIDERATION – PAGE 6 OF 8
Defendant’s failure to comply with these statutory provisions entitles Plaintiff to the relief
requested in Plaintiff’s Original Petition and Plaintiff’s Motion for Summary Judgment. It was
error for the Court to grant Defendant’s Motion for Summary Judgment on Pleadings, which
should have been denied. Instead, Plaintiff’s Motion for Summary Judgment should have been
granted. Plaintiff respectfully requests that the Court reconsider and amend its ruling as requested.
V.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff Bobbie White respectfully requests
that the Court grant her the following relief:
a. reconsideration of its ruling of August 15, 2014;
b. denial of Defendant’s Motion for Summary Judgment on Pleadings, in its entirety;
c. granting of Plaintiff’s Motion for Summary Judgment, in its entirety; and
d. such other and further relief, both at law and in equity, to which she may show
herself to be justly entitled.
Respectfully submitted,
LAW OFFICE OF TONY A. PITTS
/s/ Tony Pitts
By: ______________________________
Tony Pitts
State Bar No. 24060429
P.O. Box 5369
Round Rock, TX 78683
512.825.5545
512.244.4355 (Fax)
tapitts@taplawfirm.com
ATTORNEY FOR PLAINTIFF,
BOBBIE WHITE
MOTION FOR RECONSIDERATION – PAGE 7 OF 8
CERTIFICATE OF SERVICE
I hereby certify that on this the 15th day of September 2014, a true and correct copy of the
foregoing document was delivered via facsimile to the following counsel of record:
Fred Walker
Kimberly Nash
Fred E. Walker, P.C.
609 Castle Ridge Road, Ste. 220
Austin, TX 78746
512.330.1686 (Fax)
Attorneys for Defendant
/s/ Tony Pitts
___________________________________________
Tony Pitts
MOTION FOR RECONSIDERATION – PAGE 8 OF 8