Bobbie White v. Josefino Bencomo III ( 2015 )

ACCEPTED
03-14-00812-CV
5173978
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/6/2015 12:53:18 PM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-14-00812-CV
FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
FOR THE AUSTIN, TEXAS
5/6/2015 12:53:18 PM
3RD JUDICIAL DISTRICT OF TEXAS JEFFREY D. KYLE
AUSTIN, TEXAS Clerk
BOBBIE WHITE,
Appellant,
VS.
JOSEFINO BENCOMO III,
Appellee
APPELLEE’S BRIEF
ORAL HEARING NOT REQUESTED
From the District Court, 26th Judicial District of Williamson County, Texas
Trial Court Cause No. 14-0374-C26; the Honorable Donna King, Judge
Respectfully submitted,
FRED E. WALKER, P.C.
/s/Fred E. Walker
Fred E. Walker
Texas Bar No. 20700400
609 Castle Ridge Road, Suite 220
Austin, TX 78746
Tel. (512) 330-9977
Fax. (512) 330-1686
Fred@FredWalkerLaw.com
Attorney for Appellee
Page 1 of 26
Table of Contents
I. Statement of the Case.......................................................................................5
II. Issues Presented................................................................................................7
III. Summary of the Argument..........................................................................7
IV. Argument .......................................................................................................8
A. A deed retaining a vendor’s lien is executory only in the sense that
bare legal title remains in the seller to be automatically vested in the
buyer upon payment of the purchase money. ................................................8
B. The Deed of Trust did not cure the transaction of being executory. ...23
C. Appellee’s interpretation of subchapter D does not undermine its
intended purpose. .............................................................................................23
V. Prayer ...............................................................................................................24
Page 2 of 26
Index of Authorities
Cases
Acker v. Texas Water Comm'n, 790 S.W.2d 299, 301 (Tex.1990) .......................12
Brown v. De La Cruz, 156 S.W.3d 560, 566 (Tex.2004).......................................15
Carroll v. Wied, 572 S.W.2d 93, 95 (Tex.Civ.App.-Corpus Christi 1978, no
writ) .....................................................................................................................18
Flores v. Millennium Interests, Ltd., 185 S.W.3d 427, 429 (Tex.2005)................16
Flowers v. Zuniga, No. 11–06–00144–CV, 2008 WL 1723225, at *1, 2008
Tex.App. LEXIS 2664, at *2 (Tex.App.-Eastland Apr. 10, 2008, no pet.)
(mem. op.)...........................................................................................................15
Gaona v. Gonzales, 997 S.W.2d 784, 786–87 (Tex.App.-Austin 1999, no pet.) 18
Graves v. Diehl, 958 S.W.2d 468, 470 (Tex.App.-Houston [14th Dist.] 1997, no
pet.) ......................................................................................................................17
Henderson v. Love, 181 S.W.3d 810, 812 (Tex.App.-Texarkana 2005, no pet.)16
Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex.2006) ..........................11
Marker v. Garcia, 185 S.W.3d 21, 26–27 (Tex.App.-San Antonio 2005, no pet.)
..............................................................................................................................19
Nguyen v. Yovan, 317 S.W.3d 261, 270 (Tex.App.-Houston [1st Dist.] 2009,
pet. denied).........................................................................................................15
Reeder v. Curry, 294 S.W.3d 851, 856 (Tex.App.-Dallas, 2009 pet. denied) ...17
Sanchez v. Brandt, 567 S.W.2d 254, 259 (Tex.Civ.App.-Corpus Christi 1978,
no writ)................................................................................................................19
Shook v. Walden, 304 S.W.3d 910, 917 (Tex.App.-Austin 2010, no pet.) .........12
Shook v. Walden, 368 S.W.3d 604, 623 (Tex. App. 2012), reh'g overruled (May
9, 2012), review denied (Oct. 26, 2012) ...........................................................14
Shook v. Walden, 368 S.W.3d 604, 627 (Tex. App. 2012), reh'g overruled (May
9, 2012), review denied (Oct. 26, 2012) ...........................................................10
State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006) ...........................................11
Page 3 of 26
Ward v. Malone, 115 S.W.3d 267, 270–71 (Tex.App.-Corpus Christi 2003, pet.
denied) ................................................................................................................17
Zapata v. Torres, 464 S.W.2d 926, 928 (Tex. Civ. App. 1971) .............................8
Zuniga v. Velasquez, 274 S.W.3d 770, 771 (Tex.App.-San Antonio 2008, no
pet.) ......................................................................................................................15
Statutes
Tex. Prop. Code § 5.066..........................................................................................4
Tex. Prop. Code § 5.077..........................................................................................4
Tex. Prop. Code Ann. § 5.079(a) .........................................................................14
Texas Property Code Chapter 5, Subchapter D .......................................passim
Other Authorities
Highlights of Some Recent Texas Laws Related to Executory Contracts for
Deeds...................................................................................................................23
Page 4 of 26
I. Statement of the Case
Appellee foreclosed on Appellant’s home and filed a forceable entry
and detainer suit seeking to evict Appellant from the property. Appellant
brought this action to quiet title on April 15, 2014 asking the court to set
aside Appellee’s foreclosure of the property on the flawed theory that
Appellee failed to comply with Tex. Prop. Code § 5.066 Appellant further
sought statutory damages arising from Appellee’s failure to provide
Appellant with annual accounting statements in accordance with Tex.
Prop. Code § 5.077.
Appellant’s claims are based upon her erroneous theory that
Appellee’s sale of the property is an executory contract governed by Texas
Property Code Chapter 5, Subchapter D because the warranty deed
conveying title to Appellant’s property contains a reservation of a vendor's
lien to secure payment of the promissory note given in partial
consideration for the purchase of the property.
Appellant obtained an ex-parte Temporary Restraining Order on
April 16, 2015 - without providing notice to Appellee’s attorney - despite
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the fact that Appellant’s attorney and Appellee’s attorney had been
attempting to negotiate a settlement for several months before the TRO was
filed. The court held a hearing on Appellant’s request for a Temporary
Restraining Order on April 25, 2014. The parties agreed to submit the
matter to the court by filing cross motions for summary judgment.
Appellee further agreed to, and subsequently did, rescind the foreclosure
to allow Appellant another opportunity to cure the arrearage and reinstate
the note.
Appellee filed his motion for summary judgment on June 17, 2014.
Appellant filed her motion for summary judgment on June 18, 2014. The
court held a hearing on the competing motions for summary judgment on
August 12, 201 and entered a docket entry on August 15, 2014 ruling in
favor of Appellee. Appellant filed a motion to reconsider on September 15,
2014. The court signed a Summary Judgment Order on September 25, 2014.
The court denied Appellant’s motion to reconsider on December 2, 2014.
Appellant filed her notice of appeal on December 22, 2014.
Page 6 of 26
II. Issues Presented
Is a deed retaining a vendor's lien to secure a purchase money loan
executory as between the vendor and vendee such that the transaction is
within the meaning of “executory contract” as contemplated by Texas
Property Code Chapter 5, Subchapter D?
Does the holder of a real estate note secured with a vendor’s lien and
a deed of trust lien have an obligation to comply with the provisions of
Texas Property Code Chapter 5, Subchapter D?
III. Summary of the Argument
A deed retaining a vendor's lien to secure purchase money is
executory as between the vendor and vendee only in the sense that the
naked legal title remains in vendor to be automatically vested in vendee
upon payment of the purchase money, and in all other respects the deed is
not executory but is an executed contract. Humphreys-Mexia Co. v. Gammon,
113 Tex. 247, 254 S.W. 296 (1923)
Page 7 of 26
Texas Property Code Chapter 5, Subchapter D is applicable only to
contracts for deed and does not apply to traditional real property financing
transactions involving the use of real estate lien notes secured with
vendor’s liens and deed of trust liens. See Flores v. Millennium Interests, Ltd.,
185 S.W.3d 427, 439 (Tex. 2005).
IV. Argument
A. A deed retaining a vendor’s lien is executory only in the sense that
bare legal title remains in the seller to be automatically vested in
the buyer upon payment of the purchase money.
Appellant argues that a seller’s retention of a vendor’s lien in a
warranty deed results in the conveyance being an executory contract for
conveyance of real property subject to Subchapter D of the Texas Property
Code. This position is not supported by legislative history or case law and
would lead to absurd results.
A deed retaining a vendor's lien to secure purchase money is
executory as between the vendor and vendee only in the sense that the
naked legal title remains in vendor to be automatically vested in vendee
Page 8 of 26
upon payment of the purchase money, and in all other respects the deed is
not executory but is an executed contract. Humphreys-Mexia Co. v. Gammon,
113 Tex. 247, 254 S.W. 296 (1923)
It has long been established by Texas decisions that where a vendor
reserves in his deed an express vendor's lien to secure unpaid purchase
money, the contract is executory for some purposes, and superior title
remains in the vendor until the purchase money is paid. On the purchaser's
default, the vendor has his choice of a variety of remedies. He may sue for
his money and to foreclose the lien, or he may rescind the contract and
resume possession, or he may recover title and possession in a suit brought
for that purpose. Zapata v. Torres, 464 S.W.2d 926, 928 (Tex. Civ. App. 1971).
The Texas Supreme Court in Humphreys-Mexia Co. at page 300 writes:
“The opinions of this court have uniformly referred to deeds of the
character here involved as executory contracts in which the legal title to the
land conveyed remains in the vendor until the purchase-money notes are
paid. The Humphreys-Mexa court wrote: “.... while the deed here involved is
an executory contract as between the vendor and vendee, and those in
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privity with them, it is so only in the sense that the naked legal title
remains in the vendor, to be automatically vested in the vendee upon
payment of the purchase money, and that in all other respects, between
such parties, and in all respects in so far as strangers to the transaction are
concerned, the deed is not executory, but is an executed contract. Carey v.
Starr, 93 Tex. 508, 515, 56 S.W. 324; Stitzle v. Evans, 74 Tex. 596, 12 S.W.
326; Ogburn v. Whitlow, 80 Tex. 239, 15 S.W. 807; Brown v. Montgomery, 89
Tex. 250, 253, 34 S.W. 443; Chase v. Swayne, 88 Tex. 218, 224, 30 S.W. 1049,
53 Am. St. Rep. 742; Texas Pacific Coal & Oil Co. v. Fox (Tex. Civ. App.) 228
S.W. 1021, 1024; Rooney v. Porch (Tex. Com. App.) 239 S.W. 910; Dealey v.
Lake, 62 Tex. Civ. App. 429, 131 S.W. 441, 442; Frantz v. Masterson (Tex. Civ.
App.) 133 S.W. 740, 742; Blewitt v. Greene, 57 Tex. Civ. App. 588, 122 S.W.
914, 916; Smith v. Jarvis (Tex. Civ. App.) 24 S.W. 854, 855.”
Appellant argues that the reservation by the defendant of a vendor’s
lien retaining superior title in her deed renders the deed an executory
contract; and that therefore the entirety of Texas Property Code Chapter 5,
Subchapter D applies to the Appellant’s transaction with the defendant.
Page 10 of 26
She cites Shook v. Walden, 368 S.W.3d 604, 627 (Tex. App. 2012), reh'g
overruled (May 9, 2012), review denied (Oct. 26, 2012) as authority for her
proposition. But Appellant’s position is not supported by the plain
language of the statute, the legislative history, or case law.
Shook held that a contract for the sale of real property to be used in
the building of a residence was not an “executory contract” within the
meaning of Texas Property Code Chapter 5, Subchapter D. The court held
the land contract at issue was not a contract for deed, but rather was a
conventional contract for the sale of realty.
In so holding, the court in Shook said: “While acknowledging that a
contract for deed is one kind of “executory contract” under subchapter D,
the Waldens insist that it is not the only kind. Some of our sister courts
have stated or suggested as much. See Yarto v. Gilliland, 287 S.W.3d 83, 90 n.
10 (Tex.App.-Corpus Christi 2009, no pet.) (noting that executory contracts
contemplate “that the purchaser complete performance in the future” and
that a contract for deed “is a type of executory contract”); Reeder, 294
S.W.3d at 856 (“In an executory contract for the sale of land, such as the
Page 11 of 26
contract for deed in this case....”). However, no court to date has
interpreted or applied “executory contract” under subchapter D as broadly
as the Waldens urge here. Instead, the decisions are consistent with a
recognition of what is apparent in the structure and wording of subchapter
D – that the “executory contract” contemplated by the Legislature, whether
or not extending beyond contracts for deed, contemplates that a purchaser
satisfy a series of obligations over an extended period of time before the
seller has an obligation to transfer title.”
Resolution of this issue is a question of law that turns purely on
statutory construction. When construing a statute, the court’s primary
objective is to give effect to the Legislature's intent. See State v. Shumake, 199
S.W.3d 279, 284 (Tex.2006). The court seeks that intent “first and foremost”
in the statutory text. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85
(Tex.2006). “Where text is clear, text is determinative of that intent.”
Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009) (op. on
reh'g) (citing Shumake, 199 S.W.3d at 284; Alex Sheshunoff Mgmt. Servs. L.P.
v. Johnson, 209 S.W.3d 644, 651–52 (Tex.2006)). The court should consider
Page 12 of 26
the words in context, not in isolation. State v. Gonzalez, 82 S.W.3d 322, 327
(Tex.2002). The court relies on the plain meaning of the text, unless a
different meaning is supplied by legislative definition or is apparent from
context, or unless such a construction leads to absurd results. See City of
Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex.2008) (citing Texas Dep't of
Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004)); see also Tex.
Gov't Code Ann. § 311.011 (West 2005) (“Words and phrases shall be read
in context and construed according to the rules of grammar and common
usage,” but “[w]ords and phrases that have acquired a technical or
particular meaning, whether by legislative definition or otherwise, shall be
construed accordingly.”). The court also presumes that the Legislature was
aware of the background law and acted with reference to it. See Acker v.
Texas Water Comm'n, 790 S.W.2d 299, 301 (Tex.1990). The court further
presumes that the Legislature selected statutory words, phrases, and
expressions deliberately and purposefully. See DeQueen, 325 S.W.3d at 635;
Shook v. Walden, 304 S.W.3d 910, 917 (Tex.App.-Austin 2010, no pet.).
Page 13 of 26
The pivotal question governing Appellant’s entitlement to relief, as
she acknowledges, is whether the deed is an “executory contract” within
the meaning of Chapter 5, Subchapter D of the Texas Property Code.
Subchapter D does not explicitly define “executory contract.”
Appellant argues that the term “executory contract” under subchapter D
applies to transactions involving the use of real estate lien notes secured by
vendors’ liens retained in deeds because the seller’s reservation of a
vendor’s lien retaining superior title in his deed renders the contract
executory.
But Appellant’s proposed interpretation of the term “executory
contract” leads to absurd results and is contrary to the context which is
apparent in subchapter D. Appellant states in the last line of page 5,
paragraph 4.4 of her motion for summary judgment: “Therefore, the
entirety of subchapter D applies to their transaction.” If Appellant’s
contention is true, the purchaser can cancel the purchase within 14 days of
the transaction and the holder of a real estate lien note secured with a
vendor’s lien would not be required to conduct a non-judicial foreclosure
Page 14 of 26
of the property. He could simply send the notice under Tex. Prop. Code
Ann. § 5.063 and the transaction would be canceled. This absurd argument
is the basis for this frivolous appeal.
Tex. Prop. Code Ann. § 5.079(a) requires a “seller” of property to
“transfer recorded, legal title of the property covered by [an] executory
contract to the purchaser not later than the 30th day after the date the seller
receives the purchaser's final payment due under the contract.” A seller
who violates this requirement is liable to the purchaser for liquidated
damages in the amount of $250 per day for each day the seller fails to
transfer title between thirty-one and ninety days after the seller receives the
purchaser's final payment, and $500 per day thereafter. See id. § 5.079(b).
Shook v. Walden, 368 S.W.3d 604, 623 (Tex. App. 2012), reh'g overruled (May
9, 2012), review denied (Oct. 26, 2012) Since Appellee transferred legal title
to Appellant at closing it is absurd to argue that Section 5.079 of the
Property Code applies to this transaction.
Further, § 5.062(c) provides: “This subchapter does not apply to an
executory contract that provides for the delivery of a deed from the seller
Page 15 of 26
to the purchaser within 180 days of the date of the final execution of the
executory contract.” Since Appellee delivered the deed to Appellant at
closing, and since that date was zero days from closing, by definition this
transaction is excluded from Texas Property Code Chapter 5 subchapter D.
Texas courts, including the Texas Supreme Court, have frequently
equated “executory contract” as used in subchapter D with a contract for
deed. See, e.g., Flores, 185 S.W.3d at 429 (equating the two); Brown v. De La
Cruz, 156 S.W.3d 560, 566 (Tex.2004) (“Since 1995, the Texas Property Code
has required that sellers by executory contract (or ‘contract for deed’) of
certain residential property in Texas must record and transfer a deed
within thirty days of final payment.”); Nguyen v. Yovan, 317 S.W.3d 261, 270
(Tex.App.-Houston [1st Dist.] 2009, pet. denied) (treating “executory
contract” under subchapter D as synonymous with “contract for deed”);
Zuniga v. Velasquez, 274 S.W.3d 770, 771 (Tex.App.-San Antonio 2008, no
pet.) (same); Flowers v. Zuniga, No. 11–06–00144–CV, 2008 WL 1723225, at
*1, 2008 Tex.App. LEXIS 2664, at *2 (Tex.App.-Eastland Apr. 10, 2008, no
pet.) (mem. op.) (same); Sharp v. Smith, No. 12–07–00219–CV, 2008 WL
Page 16 of 26
257237, at *1, 2008 Tex.App. LEXIS 666, at *1 (Tex.App.-Tyler Jan. 31, 2008,
no pet.) (mem. op.) (same); Henderson v. Love, 181 S.W.3d 810, 812
(Tex.App.-Texarkana 2005, no pet.) (same); Kirk v. Barnett, 566 S.W.2d 122,
122 (Tex.Civ.App.-Houston [14th Dist.] 1978, no writ) (equating executory
contracts for conveyance with contracts for deed under the predecessor to
subchapter D); see also Graves, 958 S.W.2d at 472 (equating executory
contracts for the sale of land to contracts for deed in a suit not under
subchapter D or its predecessor).
Considering the context in which the term “executory contract” is
used in Subchapter D it is apparent that the Legislature intended it to have
a technical meaning basically synonymous with a contract for deed. A
contract for deed is a form of real property conveyance in which the
purchaser obtains an immediate right to possession but the seller retains
legal title and has no obligation to transfer it unless and until the purchaser
finishes paying the full purchase price (and, often, interest, fees, or other
related obligations), which is typically done in installments over several
years. See Flores v. Millennium Interests, Ltd., 185 S.W.3d 427, 429 (Tex.2005)
Page 17 of 26
(“... executory contracts [are] also known as contracts for deed. A contract
for deed, unlike a mortgage, allows the seller to retain title to the property
until the purchaser has paid for the property in full.”); Reeder v. Curry, 294
S.W.3d 851, 856 (Tex.App.-Dallas, 2009 pet. denied) (“[i]n an executory
contract for the sale of land, such as the contract for deed in this case, the
superior title remains with the seller until the purchaser fulfills its part of
the contract” and “[i]f the purchaser defaults under the contract, the seller
is entitled to possession of the property”); Ward v. Malone, 115 S.W.3d 267,
270–71 (Tex.App.-Corpus Christi 2003, pet. denied) (stating that a “contract
for deed is an agreement by a seller to deliver a deed to property once
certain conditions have been met” and that it entitled the buyer to
immediate possession, that the seller retains title until the purchase price is
fully paid, and that the price is typically paid in installments over several
years); Graves v. Diehl, 958 S.W.2d 468, 470 (Tex.App.-Houston [14th Dist.]
1997, no pet.) (same). A contract for deed differs from a conventional
contract for sale of realty, in which the seller and purchaser mutually agree
to complete payment and title transfer on a date certain (the “closing
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date”). See Flores, 185 S.W.3d at 429 (comparing a contract for deed with a
mortgage); id. at 435 (Wainwright, J., concurring) (“in [contracts for deed],
legal title to the property does not transfer until after all purchase
payments have been made, unlike a traditional mortgage in which legal
title transfers upon closing the transaction”). Unlike a contract for deed,
under which the buyer has an equitable right, but no obligation, to
complete the purchase, Gaona v. Gonzales, 997 S.W.2d 784, 786–87
(Tex.App.-Austin 1999, no pet.), the buyer under a typical real estate
contract is contractually obligated to complete the purchase and may be
liable for breach upon failure to pay the seller, Carroll v. Wied, 572 S.W.2d
93, 95 (Tex.Civ.App.-Corpus Christi 1978, no writ) (“In a contract of sale,
one party is obligated to sell and the other to purchase.”). In effect, a
contract for deed serves to provide persons unable to obtain conventional
mortgage financing an alternative means of purchasing real property. See
Flores, 185 S.W.3d at 434–35 (Wainwright, J., concurring) (explaining that
residents building homes in the colonias “need this method of financing
because they do not have access to traditional mortgage financing”); Marker
Page 19 of 26
v. Garcia, 185 S.W.3d 21, 26–27 (Tex.App.-San Antonio 2005, no pet.) (noting
that enactment of parts of subchapter D responded to a problem with
substandard housing developments whose residents did not have access to
traditional financing); Sanchez v. Brandt, 567 S.W.2d 254, 259 (Tex.Civ.App.-
Corpus Christi 1978, no writ) (observing, with reference to contracts for
deed, “[i]t is a matter of common knowledge ... that many poor people are
unable to obtain conventional financing when they wish to purchase
residential property. Frequently it is necessary for them to pay out the
entire purchase price of a tract of land prior to procuring title....”).
Subchapter D contains several consumer-protection provisions that
have application to contracts for deed but not to transactions involving
conveyances of property in which the seller executes a warranty deed
reserving a vendor’s lien. These include:
1. Section 5.064, which forbids a “seller” from enforcing the remedies of
rescission or of “forfeiture and acceleration” unless and until the seller
first gives notice of its intent to enforce the remedies and of the
purchaser's right to cure under section 5.065. See id. § 5.064. Section
Page 20 of 26
5.063, in turn, prescribes the content of the notice under section 5.064.
In part, the notice must advise the purchaser that “YOU ARE NOT
COMPLYING WITH THE TERMS OF THE CONTRACT TO BUY
YOUR PROPERTY,” identify the default, and that unless the purchaser
cured the default within a time specified in the notice, that “THE
SELLER HAS THE RIGHT TO TAKE POSSESSION.” See id. § 5.063.
2. Section 5.066, which requires that if the purchaser defaults after paying
“40 percent or more of the amount due or the equivalent of 48 monthly
payments under the executory contract,” the seller cannot enforce the
remedies of rescission or of forfeiture, but may have the property sold
at public auction following notice and 60 days to cure. See id. § 5.063.
3. Section 5.074, which authorizes the purchaser to “cancel and rescind an
executory contract for any reason ... not later than the 14th day after
the date of the contract.” See id. § 5.074.
4. Section 5.077, which requires the seller to provide the purchaser, “in
January of each year for the term of the executory contract,” a
statement setting forth “the amount paid under the contract,” “the
Page 21 of 26
remaining amount owed under the contract,” “the number of
payments remaining under the contract,” and certain information
relating to tax and insurance payments on the property. See id. § 5.077.
The Appellant’s reasoning would imply that every deed reserving a
vendor’s lien in favor of the seller (which are typically assigned to a lender)
would be an “executory contract” subject to subchapter D. This would lead
to results that the Legislature could not possibly have intended because it
would render the limiting phrase “executory contract” superfluous and
impose on such contracts numerous provisions that simply do not fit those
type of conveyances.
Although a contract for deed is only one kind of “executory contract”
no court to date has interpreted or applied “executory contract” under
subchapter D as broadly as the Appellant urges here. Instead, the decisions
are consistent with a recognition of what is apparent in the structure and
wording of subchapter D – that the “executory contract” contemplated by
the Legislature, whether or not extending beyond contracts for deed,
contemplates that a purchaser satisfy a series of obligations over an
Page 22 of 26
extended period of time before the seller has an obligation to transfer title.
The transaction between the Appellant and the defendant in this case is not
this sort of contract.
B. The Deed of Trust did not cure the transaction of being executory.
The fact that the parties included a deed of trust in the transaction does
not have any effect on whether the deed is an “executory contract”
governed by Texas Property Code, Chapter 5, Subchapter D.
C. Appellee’s interpretation of subchapter D does not undermine its
intended purpose.
Texas Property Code, Chapter 5, Subchapter D was intended to
provide protections to people buying land under contracts for deed; not
people involved in traditional owner financing of property through the use
of real estate lien notes secured by vendor’s liens retained in deeds and by
deed of trust liens.
The Texas Attorney General explains the law in his website under the
heading Highlights of Some Recent Texas Laws Related to Executory
Contracts for Deeds as follows: “In 2001 the Texas Legislature expanded
Page 23 of 26
protections for persons buying land under executory contracts (typically
called contracts for deeds). The major change was to make applicable
statewide amended versions of provisions that had applied only in certain
economically distressed counties. The revised provisions are in Texas
Property Code, Chapter 5, Subchapter D (“Prop, Code”).
A. The Trial Court Ordered Relief Not Requested in Appellant’s
Motion.
Appellee does not object to Appellant’s request for this court to
reverse and vacate that portion of the trial court’s order declaring the
Notice of Lis Pendens filed by Appellant during the pendency of this action
to be void and of no effect. Appellee offered to eliminate this portion of the
judgment before it was entered by the trial court but Appellant refused,
apparently desiring to justify some basis for this otherwise frivolous
appeal.
V. Prayer
WHEREFORE, Appellee prays this Court reverse and vacate that
portion of the summary judgment that ordered that the Notice of Lis
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Pendens that Appellant filed during the pendency of this action is void and
of no effect and sustain the remainder of the trial court’s grant of summary
judgment; and order such other and further relief to which Appellee may
be justly entitled.
Respectfully submitted,
FRED E. WALKER, P.C.
/s/Fred E. Walker
Fred E. Walker
Texas Bar No. 20700400
609 Castle Ridge Road, Suite 220
Austin, TX 78746
Tel. (512) 330-9977
Fax. (512) 330-1686
Attorney for Defendant
Josefino Bencomo III
Page 25 of 26
CERTIFICATE OF COMPLIANCE
I hereby certify that there are 4,449 words in this Appellee’s
Brief excluding those words exempted by T.R.A.P. 9.4.(i)(1).
/s/Fred E. Walker
Fred E. Walker
CERTIFICATE OF SERVICE
I certify that on May 6, 2015 a true and correct copy of Appellee’s
Reply Brief was served by fax on Tony A. Pitts, Attorney for Appellant
Bobbie White, at (512) 244-4355 and by email to tapitts@taplawfrim.com.
/s/Fred E. Walker
Fred E. Walker
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