Colette Custer v. Wells Fargo Bank, N.A. ( 2015 )

ACCEPTED
03-15-00362-CV
7069629
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/23/2015 5:45:39 PM
September 28, 2015 JEFFREY D. KYLE
CLERK
No.03-15-00362-CV
COLETTE CUSTER
RECEIVED IN
Appellant 3rd COURT OF APPEALS
AUSTIN, TEXAS
vs. 9/23/2015 5:45:39 PM
JEFFREY D. KYLE
Clerk
WELLS FARGO BANK, N.A.
Appellee
Appeal from the County Court at Law, Number 2
Travis County, Texas
Trial Court Case No. C-1-CV-15-000426
Honorable Todd T. Wong, Presiding
BRIEF FOR APPELLANT
Colette Custer
c/o 13276 Research Blvd., Ste.204
Austin, Texas 78750
Proceeding Pro Se
Identity of the Parties
Appellant
COLLETTE CUSTER
20433 Rita Blanca Circle
Pflugerville, Texas 78660
Proceeding Pro Se
Appellee
WELLS FARGO BANK, N.A.
Counsel for Appellee
Suzanne Louise Suarez
14841 Dallas Parkway, Suite 425
Dallas, TX 75254
(214) 550-4046
ii
Table of Contents
Identity of the Parties .ii
Table of Contents .iii
Table of Authorities v
Statement of the Case 1
Jurisdictional Statement 2
Issues Presented 3
1. Whether the two-year limitations period of Texas Civil Practice and
Remedies Code §16.003 bars Appellee's Forcible Detainer suit for
possession of the property?
2. When did the action accrue?
3. Whether it is in harmony with the Texas Constitution and statutory law for a
court to rule that, in practice, there is no statute of limitations conveyed by
Texas Civil Practice and Remedies Code §16.003, because the statute of
limitations begins anew each and every time a notice to vacate is sent to the
same forcible detainer at the same address for the same cause but with a new
date on the notice to vacate?
Statement of Facts 3
Summary of the Argument 5
Argument 7
Single Action Rule 7
Res Judicata 8
Forcible Detainer versus Tenant at Sufferance or Tenant in Arrears 10
15t Instance 10
iii
nd
2 Instance 11
State of Repose 13
Conclusion 15
Certificate of Compliance 18
Certificate of Service 18
Appendix 19
iv
Table of Authorities
Cases
Caldwell v. Barnes, 975 S.W.2d 535 (Tex.1998) l3
Doe v. Catholic Diocese ofEI Paso, 362 S.W.3d 707, 716
(Tex.App.-EI Paso 2011, no pet.)(same) _ .12, 16
Federal Home Loan Mortgage Corporation, v. Trinh Pham, Katherine
Crawford & Gary Block, 449 S.W.3d 230,
(Tex.App.-Houston [14th Dist.] 2014) 8
Galveston, h. & S.A. 647*647 Ry. Co. v. Dowe, 70 Tex. 5,
7 S.W. 368, 371 (1888) .................................................•.... · 7
Gideon v. Johns-Manville Sales Corp., 76 1 F.2d 1129, 1136-37 (5th Cir. 1985).. 6
Johnson & Higgins ofTex.,Inc. v. Kenneco Energy, Inc.,
962 S.W.2d 507,514 (Tex.1998) 6
Provident Life & Accident Ins. Co.v Knott, 128 S.W.3d 211, 221 (Tex.2003) 5
Puentes v. Fannie Mae, 350 S.W.3d 732 (Tex.App.-Corpus Christi, 2010) 8
Murphy". Campbell, 964 S.W.2d 265,273 (Tex.1997) 5
Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990) 16
Provident Life & Accident Ins. Co.v Knott, 128 S.W.3d 211,221 (Tex.2003) 6
Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex. 2000) 7
Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76,80 (Tex.1989) 13
s.v. v. R.V., 933 S.W.2d 1,4 (Tex.1996) 12, 16
Via Net v. TIG Ins. Co., 211 S.W.3d 310,313 (Tex.2006) 6
Villarreal v. Wells Fargo Brokerage Servs., 315 S.W.3d 109, .
(Tex.App.-Houston [I st Dist]. 2010) 6
v
Zale Corp. v. Rosenbam, 520 S.W.2d 889, 891 (Tex. 1975) 6
Texas Rules of Civil Procedure
Texas Civil Practice & Remedies Code § 16.003 2, 12
Texas Property Code Chapter 24 2
Texas Constitution
Texas Constitution, Art. 1, Sec. 3 2, 13
Texas Constiution, Art. 1. Sec. 3a 2, 13
Texas Constitution, Art. 1, Sec. 9 2, 13
Texas Constitution, Art. 5 ; e •••• 2
vi
STATEMENT OF THE CASE
This appeal stems from a forcible detainer case which was heard de novo in
Travis County Court at Law #2 on June 1,2015.
Appellant signed a Note with Wells Fargo on December 20,2005. At some
point, Appellant anticipated a reduction in salary, and began negotiations to modify
her payments. When she began negotiations, she had over $50,000 in the bank,
she just wanted a reduction in the amount of monthly mortgage payment.
An advisor or several advisors at Wells Fargo told her to stop paying her
current mortgage in anticipation of a modification. This is standard operating
practice in bad faith which was done by the mortgage companies. True to form,
Wells Fargo, instead of modification, began foreclosure and did in fact foreclose.
Appellant hired an attorney, as she believed and she was told, that Wells Fargo was
acting in bad faith. Eventually, her entire savings and an additional inheritance
were drained by the lawsuit.
This led to four suits by Wells Fargo for forcible detainer over a period of
four years. The first of these, Cause No. 63648, in Travis County Justice Court
precinct 2, was dismissed for want of prosecution on December 28, 2011.1
Then came Cause No. J2-CV-13-070204, which resulted in a default
judgment for Wells Fargo, although an agent for defendant was present, and then
1 Reporter's Record, Volume 3, Defendant's Exhibit 3
1
the justice clerk did not honor Appellant's bond and the house was illegally posted.
Appellant filed bankruptcy as that was her only recourse .
.The next was Cause No. J2-CV-14-074997, In the Justice Court, Travis
County, Travis County, Texas, which was Non-suited on September 18,20142•
The next suit was Cause No. J2-CV-14-0756593, which Judge Elena Diaz
dismissed, as being barred by expiration of statute of limitations."
Well Fargo appealed the order of Judge Diaz' which resulted in Cause No.
C-I-CV-15.,.000426, in the Travis County Court at Law, #2, in which Judge Wong
issued an order in favor of Wells Fargo.
It is from Judge Wong's order that Appellant appeals.
JURISDICTIONAL STATEMENT
This Court has jurisdiction of this appeal because Appellant appeals a final
judgment from the Travis County Court at Law #2. Texas Civil Practice &
Remedies Code §16.003, Texas Property Code, Chapter 24, Texas Constitution,
Art. I, Sec. 3, 3a and 9, and Art. 5.
2 Reporter's Record, Volume 3, Defendant's Exhibit 9
3 Reporter's Record Defendants' Exhibit 10
4 Order, Clerk's Record page 16
5 Notice of Appeal, CR page 14
2
ISSUES PRESENTED
1. Whether the two-year limitations period of Texas Civil Practice and
Remedies Code §16.003 bars Appellee's Forcible Detainer suit for possession of
the property.
2. When did the action accrue?
3. Whether it is in harmony with the Texas Constitution and statutory law for a
court to rule that, in practice, there is no statute of limitations conveyed by Texas
Civil Practice and Remedies Code §16.003, because the statute of limitations
begins anew each and every time a notice to vacate is sent to the same forcible
detainer at the same address for the same cause but with a new date on the notice to
vacate.
STATEMENT OF FACTS
On October 4, 2011, Wells Fargo Bank, N.A., as Grantor foreclosed on
Appellant's property on Rita Blanca.
On October 12, 2011, Brice, Vander Linden & Wernick, P.C., sent a
certified "Demand to Vacate Premises" letter, followed by a suit for forcible
detainer, Wells Fargo Bank, N.A., v. Colette M Custer, Shane G. Streeman and all
other occupants, Cause No. 63648, in the Justice Court, Precinct Two, Travis
3
County, Texas. This suit was dismissed on December 28, 2011, for want of
prosecution.
On May 22, 2013, a suit for forcible detainer was filed in the Justice of the
Peace Court, Precinct 2-1, Travis County, Texas, Cause No. J2-CV-13-070204,
Wells Fargo Bank, N.A. v. Colette M Custer, Shane G. Streetman and all other
Occupants 0/20433 Rita Blanca Circle, Plugerville, TX 78660.
Attached as evidence in the case was a certified letter dated May 7, 2013,
entitled "Demand to Vacate Premises", and referencing the foreclosure sale on
October 4, 2011. Appellant did not personally appear on June 4, 2013, she was
represented by an agent, yet, Judge Glenn Bass signed a Default Judgment in favor
of Wells Fargo. The bond of $1700 was posted by way of Appellant's Affidavit of
Inability to pay, on June 7, 2013. However, Precinct 2 issued a Notice to Vacate
on June, 26, 2013.6 Appellant filed bankruptcy to stop the illegal seizure and
overcome the gross error of the justice court and the suit died of its own volition.
On July 2, 2014, Buckley Madole, P.C., sent a certified "Demand to Vacate
Premises" letter which referenced the October 4,2011 foreclosure.
On August 4, 2014, a suit for forcible detainer was filed in Justice of the
Peace Court, Precinct 2-1, Travis County, Texas, Cause No. J2-CV-14-074997,
Wells Fargo Bank, N.A. v. Colette M Custer, Shane G. Streetman and all other
6 Reporter's Record, Volume 3, Defendant's Exhibit 6
4
..
Occupants of 230433 Rita Blanca Circle, Pflugerville, TX 78660. Attached as
evidence was a Certified letter from Buckley Madole, entitled "Demand to Vacate
Premises", which referenced the foreclosure sale of October 4, 2011. Hearing for
this suit was set for August 19, 2014. Judge Elena Diaz issued an Order for
Continuance on August 26,2014, and reset the hearing for September 18,2014.
Wells Fargo did not appear at the September 18, 2014 hearing, and Judge
Diaz granted an Order Granting Plaintiffs Oral Motion for Nonsuit.
On August 6, 2014, another forcible detainer suit was filed. This FED,
Cause No. J2-CV-14-074997, in the Justice of the Peace Court, Precinct 2-1,
Travis County, Texas, Wells Fargo Bank, N.A. v. Colette M Custer, Shane G.
Streetman and all other Occupants of 20433 Rita Blanca Circle, Pflugerville, TX
78660. Attached as evidence to the suit was a certified letter dated July 2, 2014
from Buckley Madole entitled "Demand to Vacate Premises", referring to the
foreclosure sale conducted on October 4, 2011 .
. This Order was appealed to County Court, Cause No. C-I-CV -15-000426,
Judge Wong presiding who ruled in favor of Wells Fargo and is the Order which is
appealed before this Court.
SUMMARY OF THE ARGUMENT
5
· .
An Order Dismissing Plaintiffs Case as Barred by Expiration of Statute of
Limitations was signed on December 8, 2014 by Judge Elena Diaz.
"A defendant moving for summary judgment on the affirmative defense of
limitations must conclusively establish the date on which the limitations
commenced; that is, the date on which the cause of action accrued. See
Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex. 2000); Zale Corp.
v. Rosenbam, 520 S.W.2d 889,891 (Tex. 1975). The determination of this date is
typically a question of law." Provident Life & Accident Ins. Co.v Knott, 128
S.W.3d 211,221 (Tex.2003).
As a general rule, a cause of action accrues, and the statute of limitations
begins to run, when facts come into existence that authorize a party to seek a
judicial remedy. Id. (citing Johnson & Higgins of Tex.,Inc. v. Kenneco Energy,
Inc., 962 S.W.2d 507, 514 (Tex. 1998». In most cases, claims accrue "when a
wrongful act causes some legal injury." Via Net v. TIG Ins. Co., 211 S.W.3d
310,313 (Tex.2006). Villarreal v. Wells Fargo Brokerage Servs., 315 S.W.3d 109,
(Tex.App.-Houston [1st Dist]. 2010).
When Brice, Vander Linden & Wernick, p.e., acting for Wells Fargo Bank,
N.A. sent its letter on October 12, 20117 entitled "Demand to Vacate the
7 Reporter's Record, Volume 3, Defendant's Exhibit 11
6
. '
Premises", it triggered the running of the two year statute of limitations no later
than October 16,2011.
ARGUMENT
Single Action Rule
In Pustejovsky v. Rapid-American Corp. v. Pustejovsky, 35 S.W.3d 643,
(Tex.2000), the single action rule is discussed:
"The case raises the question whether a plaintiff may bring separate
actions for separate latent occupational diseases caused by exposure to
asbestos. Specifically, we must decide whether the single action rule or the
. statute of limitations bars Henry Pustejovsky, who settle an asbestosis suit
with one defendant in 1982, from bringing suit against different defendants
twelve years later for asbestos-related cancer. The court of appeals
affirmed, holding that under the single action rule, Pustejovsky's cause of
action for cancer accrued, and limitations began to run, when he know of
the asbestosis. 980 S.W.2d 828, 833. We conclude, however, that neither
the single action rule nor the statute of limitations bars Pustejovsky's later
claim for asbestos-related cancer. "
"The single action rule, also known as the rule against splitting claims,
provides a plaintiff one indivisible cause of action for all damages arising
from a defendant's single breach of a legal duty. See Gideon v. Johns-
Manville Sales Corp., 76 1 F.2d 1129, 1136-37 (5th Cir. 1985). Our
jurisprudence "was designed to prevent more than one suit growing out of
the same subject-matter of litigation; and our decisions from the first have
steadily fostered this policy." Galveston, h. & S.A. 647*647 Ry. Co. v.
Dowe, 70 Tex. 5, 7 S.W. 368,371 (1888).
"The single action rule, like limitations and res judicata, serves the
purpose of giving defendants a point of repose. However, a defendant is in
no different position with respect to an asbestosis plaintiff who may
develop mesothelioma in the future than with an individual who contracts
mesothelioma without ever suffering asbestosis. And the defendant's need
for repose must be balanced against the plaintiff s need of an opportunity to
seek redress for the gravest injuries, those culmination in wrongful death."
7
, '
If a suit involves the same issue, the same property, and the same date of
foreclosure sale, the court cannot construe a new set of circumstances exists
because a more current notice to vacate is issued. It is obvious the accrual of
action began when the first notice to vacate issued and the tenant at sufferance
refused to vacate the property. It is at that point in time when the tenant at
sufferance takes on the legal status of forcible detainer. Unless there is an
agreement or some other written concession, the forcible detainer maintains that
legal status until he is dispossessed, his dispossession is barred by limitations, or he
reaches a state of repose. In this case, there is no new owner who issued a notice
to vacate, it is the same Wells Fargo, N.A., whose action accrued three days after
October 12,2011, and who filed 4 separate FED actions and the exact same issues
and causes of action. The only thing that changed from law suit to law suit over a
period of four years, was the date on the each Notice to Vacate letter.
When Brice, Vander Linden & Wernick, P.C., acting for Wells Fargo Bank,
N.A. sent its letter on October 12,2011 entitled "Demand to Vacate the Premises",
it triggered the running the of statute of limitations no later than October 16, 2011.
Res Judicata
In its brief at county court, Wells Fargo used as its basis, Puentes v. Fannie
Mae, 350 S.W.3d 732 (Tex.App.-Corpus Christi, 2010) and Federal Home Loan
Mortgage Corporation, v. Trinh Pham, Katherine Crawford & Gary Block, 449
8
, '
S.W.3d 230, (Tex.App.-Houston [14th Dist.] 2014), which are cases that assert
claims of res judicata. The statute of limitations was not pled in these cases and
the cases are irrelevant to the case before this court.
Appellee in its petition for forcible detainer at paragraph 198 states: "For
purpose of application of statutes of limitation, cause of action can generally be
said to "accrue" when wrongful act effects injury, regardless of when plaintiff
learned of injury." Appellant, the statutes and case opinion agree with the accrual
of action which was 3 days after Appellant received her 3 day notice to vacate,
which was dated October, 12,2011.
What Puentes and Crawford state is that res judicata does not apply in cases
in the justice court. In other words, one can sue the same party as many times as
one wishes, always attempting to receive a favorable order.
There was no "continuous tort" and the inference fails under its own weight.
The legal status of the forcible detainer does not change once a foreclosure sale
occurs and subsequent to the forcible detainer action, a 3 day notice to vacate
issues. The forcible detainer's legal status does not change because a new notice to
vacate issues. It remains the same from the first time he is served with a notice to
vacate and refused, thus becoming a forcible detainer, and the trigger which
accrues the action.
8
Clerk's Record page 40
9
> '
In the instant case, Wells Fargo foreclosed on October 4, 20119. On
October 12, 2011, Brice, Vander Linden & Wernick, P.C., sent a certified letter to
Colette M. Custer, on behalf of its client, Wells Fargo Bank, N.A., entitled
"Demand to Vacate Premises". ,When Appellant refused to vacate the premises,
she became a forcible detainer and her legal status has remained consistently the
same since that time.
When presented with another "Demand to Vacate Premises", which was
mailed on July 2, 2014, her legal status and position had not changed. The July 2,
2014 letter is strikingly similar to the 2011 letter.
Forcible Detainer versus Tenant at Sufferance or Tenant in Arrears
There is a marked difference between a landlord - tenant suit for eviction
and a landlord - forcible detainer suit for eviction. The differences are:
1st Instance
A tenant who is renting or leasing a property has an obligation to pay rent
and comply with the terms of the lease. When this tenant fails to comply, the
landlord gives a 3 day notice to vacate before he files a suit for eviction suit in the
justice court of jurisdiction where the property is located.
The tenant has the option, before judgment, to comply with the delinquent
terms of the lease, i.e., if the tenant is behind in rent and pays the delinquent
9 Clerk's Record Pages 262-264
10
· .
amount to the landlord before the landlord obtains an order to evict, (Writ of
Possession), the tenant is restored to his legal capacity and can remain in the
property.
The landlord can file for forcible entry and detainer (FED), as often as the
tenant is not compliant. This is the reason that there is no res judicata in justice
cases. The legislature has not put a finite number on the times a landlord can sue
the same tenant.
2nd Instance
There are two rights involved with property ownership. One is right to title
and one is right to possession.
A former homeowner who has lost his right to title of the property through
foreclosure has a different standing than he did when he held the right to title.
This person became a tenant at will or sufferance, when the lien on his property
was foreclosed. He no longer holds title to the property and is a tenant at
sufferance. Once the former owner of the property is served with a 3 day notice to
vacate and refuses to leave the property, he becomes a forcible detainer. He does
not have the option to pay back rent or to negotiate for better terms. He has lost his
right to the property title in its entirety. He is now a forcible detainer and retains
only the right to possession, which must be legally wrested from him. His status
11
, '
does not change unless there is an agreement between the new owner or the two
parties have come to an agreement concerning the occupancy of the property.
Once the demand to vacate the property within 3 days is made and the tenant
at sufferance refuses to vacate, and the tenant becomes a forcible detainer, the new
title holder of the property has 2 years from the date the former tenant becomes a
forcible detainer to oust the forcible detainer. Texas Civil Practice & Remedies
Code §16.003. This limitation has been a Texas Statute since the beginning of the
written law in Texas.
It is folly to believe that in the case of a forcible detainer, a letter to vacate
with a newer date changes the status or the circumstances of the action. That
theory obviously applies in the 1st Instance, but cannot be used in the 2nd Instance.
The forcible detainer status did not begin anew with the arrival of a newly dated
demand to vacate. His status is exactly what it was once he received the first
notice to vacate, that of a forcible detainer. Ergo, to find that the receipt of a letter
reflecting a newer, later date somehow switched the forcible detainer to a tenant at
sufferance and upon opening the letter, he is magically transformed into a forcible
detainer anew is nonsensical.
In point of fact, given the plethora of mortgage company foreclosures and
the resulting evictions based on the foreclosure, it would behoove the Texas
Supreme Court to promulgate a rule which considers an eviction in a mortgage
12
, .
company/forcible detainer case as final. Then, there would be no question about
res judicata or accrual of action in these instances. To treat the landlord/tenant
relationship the same as a mortgage company/forcible detainer case only leads to
confusion and ambiguity.
Laches
Appellant asserts that the 4th Forcible Detainer suit was barred by laches.
Appellant asserts that Wells Fargo exercised unreasonable delay in asserting its
legal or equitable rights, and Appellant, in good faith, relied on the 2 year statute
of limitations and the October 16, 2011 accrual of action and made determinations,
such as improvements and repairs, based on the change of position which occurred
after the two years. Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 80
(Tex. 1989); Caldwell v. Barnes, 975 S.W.2d 535 (Tex.l998).
State of Repose
The current opinions in this court have left former home owners prey to
continual, never ending litigation where forcible detainers suits are at issue.
There is no question that the continual litigation could be construed to be a
violation of one's rights under Art. 1, Sec. 3, 3a and Sec. 9 of the Texas
Constitution. To allow a forcible detainer action to continue three years, four years
or more after the foreclosure sale and first notice to vacate is a travesty of the law
that should not be allowed.
13
What this court has said is: Take as many shots as you want for as long as
you need, until the defendant gets worn out or worn down, or the courts uphold
your actions. And what mortgage company, knowing of the court's decisions,
would ever pass up the opportunity to simply redate the notice to vacate and reset
the clock? Certainly not Wells Fargo!
This is an intolerable abuse of the court's discretion. The court has an
obligation to determine when an action accrued, and it shouldn't be a matter of
discretion to determine the date, it should be a matter of law. When did the action
begin which would allow a party to seek a legal remedy?
According to case opinion, an action accrues once a wrongful act causes
some legal injury and the injured party has the right to sue. In the instant case, the
court cannot determine that the discovery rule applies or that the once the notice is
sent, the statute of limitations tolls. There can be no doubt that the action accrues
shortly after the notice to vacate is sent. The mortgage company, after all,
foreclosed on the property and is well aware it must send the notice to vacate
before it can sue for forcible detainer. There is nothing to discover.
To opine that every single letter that is sent begins the accrual of action over
again is counter intuitive to the law. There would never be a state of repose for the
one who is continually being sued.
14
, .
The only justification the courts could cite would be, a new action has
begun. That would be in contradiction to the law. Again, it is the same action, the
same cause, the same foreclosure date, and the same plaintiff and defendant. How
can the courts justify this kind of reasoning? From Appellant's perspective, only
by applying unequal protection of the law, a violation of the Texas Constitution
and Appellant's inviolate right to equal protection and open and fair courts.
Appellant asserts that by ruling that every new notice to vacate sent is a new
cause of action, the court is violating the spirit of the law and the rights embodied
in the Bill of Rights of the Texas Constitution.
Four exact same suits, having the same cause of action and naming the same
parties each and every time is harassment and legal abuse.
Had Appellant sued this many times on the same Issue with the same
adverse results, he would be labeled a vexatious litigant even though the suits are
all in justice court.
By ruling as this court has ruled, to allow a mortgage company innumerable
suits over a period of four years, to continually bring suit for the same issue from
the same starting point, is the very definition of legal abuse.
CONCLUSION
Colette Custer's home was sold at foreclosure sale on October 4,2011. That
is a fact. At that point, she became a tenant at sufferance. Wells Fargo did not
15
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suffer her for any length of time, as Wells Fargo issued a Demand to Vacate
Premises letter on October 12, 2011. When Appellant received the demand and
determined not to cede possession of the property, she became a forcible detainer.
On October 16,2011, the action accrued, and Wells Fargo could seek redress in the
courts.
A cause of action generally accrues at the time when facts come into
existence authorizing a claimant to seek a judicial remedy. Murray v. San Jacinto
Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990). In Texas, a Plaintiffs cause of
action accrues, and the applicable limitations period starts to run, "when a
wrongful act causes some legal injury, even if the fact of injury is not discovered
until later, and even if all resulting damages have not yet occurred." S. v. v. R. V,
933 S.W.2d 1,4 (Tex.1996). See also Doe v. Catholic Diocese of El Paso, 362
S.W.3d 707, 716 (Tex.App.-EI Paso 2011, no pet.)(same).
On October 16, 2011, Appellant became a forcible detainer, and that
wrongful act caused a legal injury upon which Wells Fargo was authorized to seek
a judicial remedy.
A party seeking possession of a property, files a suit for forcible detainer,
which is an eviction suit, which is what Wells Fargo did in November of2011.
The process is designed to be speedy and efficient. It not meant to be
delayed for a process of years.
16
, .
During a 4 year period, Wells Fargo filed four eviction suits against the
forcible detainer. Not once during the four years did Appellant's status change.
She remained, from October 16, 2011 till now, a forcible detainer. Because she
had been issued a demand to vacate, it was not necessary to send a second or third
or fourth demand. The facts had not changed. She was in the same legal status in
2014 as she was on October 16, 2011.
Wells Fargo is or should be aware of the limitation statutes. It knew or
should have known that it had two years to legally obtain possession from
Appellant, yet, on several of the trials, it didn't appear, or non-suited. No one
could attribute due diligence to those actions. Finally, after its 4th suit and trial, the
I
judge, who carefully studied and understood the law of forcible detainer ruled that
Wells Fargo was barred by expiration of statute of limitations. Further, Appellant
asserts the 4th suit was barred by laches.
Judge Elea Diaz's opinion is the correct one, and Appellant asks this court to
uphold the long, proud history of Texas law and rule in Appellant's favor.
Respectfully submitted,
Collette Custer
20433 Rita Blanca Circle
Pflugerville, Texas 78660
17
, ,
CERTIFICATE OF COMPLIANCE
I hereby certify that this document is typed in Times New Roman 14 point
type and contains 3,938 words.
CERTIFICATE OF SEvic
,/`` .
I, the undersigned, hereby certify that a true and correct copy of
Appellant's Briefwas sent by U. S. Postal Service on September 22,2015 to:
Suzanne Suarez
P. O. Box 2869
Addison, Texas 75001
18
• •
APPENDIX
Judgment from Judge Todd T. Wong
June 1,2015
19
( ,
No. C.l.CV.15-0004~6
WELI.s FARGO BANK, N.A. § 1NTHE COUNTY COURT
Plaintiff §
§
~ §
COLETTE M CUSTER, SHANE G §
STRE~TMAN AND ALL OTHER § AT LAW NO. ONE
OCCUPANTS OF 20433 RITA BLANCA §
ClRCLE, PFLUGERVILLE, TX 78661J §
Defendang. §
§
§ TRAVIS COUNTY, TEXAS
This cause came on for eonsideratlonbefore this Coul'l. The Court, after· examining the verified
pleadings on file .in this Cotltt. is of the opinion and fwds that:
• Plaintltl~ the current titleholder pursuant to a Special WaiTI~nl)' Deed delivered to it by Wells Fargo
Bank. N.A., the purchaser of at the non-judicial foreclosure salt: on 1010412011;
• The Deed of Trost authorizing the ~l~ provides that upon occurrence ofa non-,iudiciill foreclosure
sBle,Defendilllt isto SttiTenderpoAsessiqn ~f the Property to the·'purchaser at that sale, or be deemed
atenanhlt!lufferaneeartd may be removed bya wlit ofposscssion.
• Defendant is cun'ently in posses.c;ion oftbe Property.
• Plairttiffhas given Defendant a written notice to vacate and demand for possession. Sucb
notice was sent at least three (3) or thirty (30) days prior-to this Complaint being filed;
• Defen.dant· has failed to vacate or surrender possession of the ).>rOperty.
IT IS THEUrORE ORDERED, ADJUDGED AND DEClUCED that:
• COLETrE M CllSIT'!.R, SHANE G STREEtMAN and aU other occupants of 20433 RITA
BLANCA CIRCLE, PFLUGERVD.LE; TX 78660, are guilty of foJ-cible detainer; h
Plaintifi'is entitled to immediate possession, the issuance of a writ of possession~ and all
costs of court.
Supersedeas Bond Amouni$ z.~oO !tL-.
SIGNED this _-I~ \t. (
~
dIi.Yof_-..,.."T"' __ o.-- .........J 2015.