CAUSE NO. 03-14-00812-CV

IN THE COURT OF APPEALS

FOR THE

3RD JUDICIAL DISTRICT OF TEXAS

AUSTIN, TEXAS

__________________________________________________________________

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

ACCEPTED

03-14-00812-CV

4579155

THIRD COURT OF APPEALS

AUSTIN, TEXAS

3/20/2015 12:21:58 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 3/20/2015 12:21:58 PM JEFFREY D. KYLE Clerk
ii

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
iii

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
iv

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
1

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.
2

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?
3

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.
4

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.
5

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 
6

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 
7

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 
8

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 
9

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 ownerfinancing situations the right to notice and an opportunity to cure any default (§§ 
10

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 
11

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
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 E1<pires Notary Public, in and for the St fTexas -.,,,,:t,;:,;f.~;I April 03, 2015 , 

12 

13

XIII.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this Petition for Writ of 

Mandamus was served in accordance with Rule 9.5 of the Texas Rules of 

Appellate Procedure on each party, or the attorney for such party, indicated below:

Fred Walker

Kimberly Nash

Fred E. Walker, P.C.

609 Castle Ridge Road, Ste. 220

Austin, TX 78746

512.330.1686 (Fax)

fred@fredwalker.com

knash@fredwalker.com

Attorneys for Appellee

/s/ Tony Pitts

____________________________________

Tony Pitts
14

XIV.

APPENDIX

Exhibit A: Final Summary Judgment – being appealed from.

Exhibit B: Warranty Deed with Vendor’s Lien.

Exhibit C: Real Estate Lien Note.

Exhibit D: Deed of Trust.

Exhibit E: Text of Tex Prop. Code §§ 5.062 – 5.066, 5.069, 5.077, and 5.081.

Exhibit F: Plaintiff’s Motion for Summary Judgment.

Exhibit G: Recorder’s Official Transcript – Hearing on Motions for Summary 

Judgment at 4-5, 9-10.

Exhibit H: Plaintiff’s Motion for Reconsideration.
EXHIBIT A
atJ-:f~l~k_QM 

NO. 14-0374-C26 ~ SEP262014 ?f 

BOBBIE WHITE ~ IN THE DISTRICT co~ ~ 

Plaintiff, ~ Dlatrlct Clerlc, Wlfffameon Co.. TX 

v. § 26TH JUDICIAL DISTRICT 

§ 

JOSEPHINO BENCOMO III § 

Defendant, § OF WILLIAMSON COUNTY, TEXAS 

FINAL SUMMARY JUDGMENT 

On August 12, 2014, the Court heard Plaintiff Bobbie White's Motion for Final Summary 

Jud&ment and Defendant Josephina Bencomo lll's Motion for Summary Judgment on Pleadings. 

Plaintiff and Defendant both appeared through their respective attorneys of record. 

The Colltt has considered the pleadings and official records on file in this cause, the 

evidence, and the arguments of counsel. The Court finds (1) there is no genuine issue about any 

material fact; (2) Plaintiffs Motion for Summary Judgment is not meritorious and should be 

DENIED; (3) Defendant's Motion for Summary Judgment on the Pleadings is meritorious and 

should be GRANTED; and (4) Defendant is entitled to judgment as a matter oflaw. 

I'f lS THEREPORE ORDERED that Plaintiffs Motion for Summary _1,1dgmcnt is 

DENTED. 

IT IS FURTHER ORDERED that Defendant's Motion for Summary Jud!:,>rnent 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:·() ,

0 ·· ,

1 ., ; 1:!Ji Georgetown Title Company, Inc. 

" 10 ,tf,lt ~to· fF Cfto #- f.Z, CA5lj{)2--~ O I Ocf-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 Vendor1s 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 

roSEfrnOJ3BNcoMo, rn...._ 

JL 

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 1'£t;ct, w,, rBtoto ~ ,,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
EXHIBIT"J" 


( 

(I) 

(JI 

0. 

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 

'1 

()) Tnistee: LARRY MOLlNARE .t 

0) ~; 

·~·· O Trustee's MaillngAddicss (inch1ding county): 524 N. Lamar Blvd, 11200, Austin, Travis County, Texas 7870( 


rl 


0 


0 1!.~ffi£fioffi'IY!'-"'l'8silF!No;gBNl':<'fM0;11f""' 

N 

Benefioincy's Malling Address (inOllidu1g county): 4229 Boy Scout Lane, El Paso, El Paso County, T<xas 79922 

Note(s) 

Effective Date: November 21)2001 

Amount:THlRTY-F!Vll THOUSAND FOUR HUNDRED AND NO/fOIHJOLLARBi\~'.li'!OOiOO~ 

Maket: BOBJJD; WHITE nnd h\l.S\>and, GBORGE WHITE 


Pay<": JOSBFINO BENCOMO, ID 


FiMI Maturity Date: As stated in said note. " 

Tcrnis ofPayment (op<ioonl): As provld."<l thorein. 

Properly (inclutling any improvements): 

Lot 71 Block 11 A0

, ofTHE SETI'LEMENT y SECTION ONE, an addition iil and to the City ofRound Roel; in 

Wiiiiamson County, Toms, accordiOg to tho m>p 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<uring 

the payment of llutt one certain p!Omissory no!< in lhe original priucipal"S\iWAt!ill>~!i.~l§.<l;1')f1~~~~~Ulj;i!J'1>1"

B0Bl1Jl!~.]$ifill~1!101>ffil<lb'ey!\§J:il.GE~~Jii)'i!ofi~~qf@l'JitcITONG<'iilli'\<&!'."15RIBAGB'.~<J~. mow fully descrlbcd in a deed of trust filed of record in the Official Public Records of'Travis County1 Texas1 and Gtantors 

expressly covenant and agree that rhould default be made in 1he pa_yrn¢nt of satd S821600.001 or any portion thereof, prfucipal or 

intertst1 as the same sbal\ bcconle ·iue anQ.~z~_QJ~1 or_in ~y_o_t_~ coven.ants of the deed of trust securing \he payment thereof, ­

the u1deb1,dne.ss evidenced by tll'6~3S;foo£(r'jf61flj\!'f~~£:~, al the option af1he holder theieof, shall at once become rluo 

and payable. 

lked of1'n.ut 


l'af.'e.l or 4 


GFi Ql~/oun/pn 

----------------·--· 

EXHIBIT"J" 


( 

Othor Exceptions to Conveyance and Wananty: 

This convoyance ls expr<"ly mad• and ae<;<pt«\ 1ubjcet to al\ valid and rub1fatlng casements, r<Slrlcttons, 

icsmations, covenants and conditions relating to said Property, to the ex!ont the same are valid and 

onforceable against said Property, as same ate sho1111 by instruments flied of record in the office ofthe County 

Clerk of\Villiamson Count}', T~xas, 

Por value received and to 5'cure payment oftlte note, G:tantor conveys the Property to Trustee in trust. Gtantor warrants 

and agrees to defend the tille lo the Property. JfGranlor perfomlS all the covenants and pays the Note according to its teJlllS, thls 

Deed ofTrust shall have no furth-er effect, andDeneficiary shall1¢leaso it at Grantol's expcnsi:. 

Grantor's Obligations 

Granlor 3gtCes to: 

I. 	 keep the Property in good repair and conditionj 

2. 	 pay all !Jlxcs and assessments on tlie PropertyvJtCn due; ., 3. 	 preserve Ute lien's priority as it is estebtlsbed itt this Deed ofTrus~ 

4. 	 maintain, in a fonn accept.'ible t0Denefidary1 an }n.suamce policy that 

a. 	 coven; al1 improvomcn~ for their full insurable valuo as. determined when the policy is hsued and 

icnc\ved1 unless Bencfiofa.ry appro\'es a smaller amount in writing; 

b. 	 contains 2Jl 80% coinsurance clausej 

c. 	 provides :!ire and extended covcraie, including wind.stonn coverage; 

d. 	 protects Beneficiary with a standard mong01go clause; 

e. 	 provide< t1ood lmmrence a< any time the Property is in a flood hazard area; and 

f. 	 contains such other coverage as Beneficiary may reasonably require; 

5. 	 comply at a11 tinm with the requirements o( the 80% <;oinsurance clause; 

6. 	 deliver the !nsuiw1ce pu\iey 1o Beneficial)' and deliver renewals to Beneficiary at least 1cn days before 

expiration 

7. 	 keep any buildings occupied as required by the insurance policy; 

8. 	 if this ls not a fintlien, pay oll prior lien noteslha! Grantor is personallyliable to pay and abide by all prior lien 

instruments. 

Beneficiary's RJghts 

1. Beneficiary may i1ppoint ill writing a substitute Qr su~s.wr mist~. succeeding to all rights and 1esponsibilities 

ofTrustee. 


2, lfthe proceeds of1he Now ate used to pay any debt secured by priot liens, Beneficiory is subrogated lo •It of 


!he rights Ma liens ofU1e holders of any debt so paid. 


3. Beneficiary lriay apply any proceeds n~wrved under the insurance policy either to reduce the Note or to repair 


orreplae? damaged or destroyed irnprovemcnls ¢ov~red by th~ policy. 


4. If Graotor fails to perfonn any of G1antor's Qbligations, Beneficiruy may perform those obligations and be 


reimbursed by Granter on demand llf the place \vhere the Note is payable for any sums so paid, inc[uding attomoy's fees, plus 


Interest on thoso sums from the dates of payment at the rn1e slated in the Nole for matuml, unpaid amounts. The sum to be 

reimbursed shall be secured by this Deed ofTrust. 

5. If Granto; defaults on the Note or fails to perfonn any of Granto~s obllgations or if default oocurs on a prior 


Uen note O'C other IDstrume~ and th6 @fault continues after Beneficiary gives Grant.or notfoo of tM default aud the time within 


which it must be cured, as lllllY be required by law or !>y 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 

GF1 ~1Wl6Wl'F/mmlpn 
EXHIBIT "J" 


( 

c. 

notice oftbe foreclosure wle as ptovided by the Texas Property Code as thetl amended; and 

purchase the Propmy al any foreclosure sale by offering the highest bid and then have the bid 

credited <in tho No1e. 

Trustee's Duties 

Jf requested by Beneficiary to foreclose μ.is lien, Trustee shall: 

l. either personally C•r by agent give notice of the foreclosure sale as required by the Texas PropertyO>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 

G<antor, subject to prior liens and to other exceptions to conv.yanoe and warranty; and 

3. 	 from the proceeds ofthe sale, pay, in this order: 

;l. expenses offoreclosure, including a conunissioa to Trustee of5% ofthe bid;_ 

b. to Benoti.ciazy1 the fWl amount ofprincipal, interest, attorney's fees1 ;md otherchaiges due ttnd uqpaid; 

¢. any runo1mts required by law {() bo paid bcfQrQ pa)'ltlent to Granto,:; and 

<l. 	 to Gran!or, any batanc-e. 

General Provisions 

l. Ifany of the Proferty is sold under !his Deed ofTrust, Grantor shall immediately surrender possession to the 

purchaser. JfGrantor fails to do soJ Grantor {lhalt becotnc a tenant at sufferance of the purchaser, subject to an action for forcible 

detainer. 

z. 	 Recitals in any TvJStec's deed conveying the Prnpcrty wiU be presume<l to be true, 

3, Proceeding un&r lhls Deed of Trust, filing suit for foreclosure, or pursuing any other remedy will not 

constitute an ele-ctfon ofremodies. 

4. 'This lien shall re1n.&in :iupcrior to liens later created even i! tOO time of payme.nt of i\l\ or part of \he Note {s 

extended or part of the Property is fele.ased. 

5. If any portion oftbc Note cannot l>e 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 Prop<rty, from private sale in lieu of con~emnation, ond from damages caused by public works or conslnlcrion on ornear the 

Property. After deducting any expenses incurred, Including attorney's fees, Beneficiary may release any remaining s~ to 

Grinlor -Or apply such sums to reduu the Note. Beneficiruy shall not br: liable for failure to collect or to exerclse diligence in 

collecting any such sums, 

J. Grantor -assigns It) Beneficiary absolutely, not only as collateral, all _present s.nd future rent and other income 

and receipts from the Property. L:ases are nof assigned. Oiantor wamuits th1,1 vaUdity and enforceabHlty of the assignmen(. 

Gran.tor may as B~nCficiai-y's licensee collci:t rent and other inco1ne and receipts as long as Gran.tor is not in default under the 

Note or this Deed 0-fTrust. Grantor will apply all reot and other income and receipts to payment of the Note nnd perfonnance of 

this Deed of Trust. but if th1; rent and other income and 1eceipts: exceed the amotmt due under the Nole and Deed of Trust, 

Grantor may retain tl1e excess. If Grantor defaul\.s in paym<nt of \he Note or perfomunce oflhis Deed ofTrust, Beneficiary may 

terminate Grantor's license to col1ect and then as Graulor's agent may rent the :Property if it is vacant and collect all rent and other 

in-come and ree?ipts. Beneficfaryndther has nor_ as.sumos any.obHgatioD.S as lc.ssor or landlord witl1 respect to any occupant of the 

Property. Bene.flciiary may cxer-cke Denefk:iary1s rights an.d remedies under this paragraph wiUtout taking possession of the 

P.ro~rty. Beneficfory shall apply all 1ent and other income and receipts. coll~ted under this paragraph (mt to expe~es incurred 

in exercising Beneficiary's rights and re.me.dies and the1t to Grantor's obligations under the N0:lo and this Deed of Trust in the 

order determined by Beneficiary. Beneficiary is not required to act under this pu-agraph. and acting lUlder this-paragraph does not 

waive any ofBeneficiary's olhor rights orrerned!es. lfGrantor becomos. Yohmtary or Involuntary banlcrupt, Beneficiary's filing 

a proofofclaun In bankruptcy \vill be 1an!amount to the appointment ofa receiver under Texas law. 

8. Merest on the deb! secured by this Deed of Trust shall not exc<ed the maximum amount of nonusurlous 

interest that may be contracted for, taken, reserved, charged, or received under law; any interest fn oxcess of that maximwn 

amount shal\ be <:redi{ed on the principal of thQ debt ot, if that has b~en paid, relUnde<l. On any acceletatkn\ or required or 

Deed. of'I'rust 

Pa~3o!4 

GFJ l).1W464i$1I'i!trrunfpu 
EXHIBIT "J" 


pcnnltted prep•)'llWnt, any such exc<'ss shall be canceled automatically as of tl~ acceleration or prq>a)'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 payt0<nl of which is hereby secured, is ln pan payment of tho pmcbase price of the above 

deseribed real proPorty, and is also •:cured by a vendor's lien thereon retained in deed of even date herewith to the undersigned, 

and this Deed ofTrust ls given as adrutiona! security for tlie pa)'lllent ofsoid indebtedness. 

lf aU or any part of lho l'!opcrty is sold1 conve.yed1 leased for aperiod longer than three (3) years, leased \vith an option 

lo purclmse1 or otherwise soJd {including contract for deed), \vithout the prior written consent of Beneficiary, then the Beneficiary 

may, at his opti.on1 declare the outstandlng principal balance of the Note, pluS accrued futcre-st, to be immedfotl3-ly due and 

payable. The creation ofa subordinate lien. any sale thorem1der1 any deed under threat or order ofcondemnation. any conveyance 

so!e!y between Grantors, tlie passage of1itle by reason of the death of a Maker or by operation oflaw sball not be conslnled as a 

sale or conveyanco of tl1e Property. · 

Grantors shall furnish to Beneficiary, before the taxes become delinq_uent, copies of tax re-;eipts showing that all ta:.:es on 

lhe- Property have been paid. Graritors shall furnish to Beneficiary annually evidence- of currt:nt paid-up insurance naming 

Benefie!aryas!ns11ted. ~-~~----------

B~IE WHITE~ 

~¥E TIUlSTJ\TEOFTEXAS § 

§ 

COUNTY OF TRAVIS § 

Tilis instrunwnt was acknowlecged before me on Novembor 200! by BOBBIE WHITB and husband, 

GEORGE WHITE. {") 

_\nl2'~tUYl-trk__Ll.!Utffl.~~~~

(!J!i!1te~ '*rn; ofNolary) 

l fIlrn ~NO REffi~~rn OFFICIAL PUBLIC RECORDS 

~rt To· 

Jo0e.,.ft f\O 'b~t\como JIL 

4'22. CJ 'f;ol.j Scout. lri · 

~;:~ el fo,so { JY, 1<1'12..c 

GFI Qltl2#W!'Flrom!pn 

,y.j~e~~. 

11-30·'200'r"°'03:40 p)\ 2001088<\26 ANDERSON $15.00 Nf>IDY E. RISTER ,COUNTY CLERK WILLIAllSOH COlltlTYo 1EXAS 
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
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT – PAGE 1 OF 7 

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. 

Filed: 7/18/2014 1:19:17 PM

Lisa David, District Clerk

Williamson County, Texas

Sharee Allison
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT – PAGE 2 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 3 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 4 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 5 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 6 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 7 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
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 ~~ 
Fax: +1 (512) 244-4355 Page 4 of 1206/09/2014 4:14 

From: Fred Walker Fax: (512) 649-3030 To: Tony Pitts 

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. 

. <June. 0 SUBSCRIBED AND SWORN TO BEFORE ME oni'lfay .:.L 2014, by Josefino 

Bencomo III. 

Josefina Bencomo Ill 

' EXHIBIT J:L.. 

'-( ·f 
CAUSE NO. 14-0374-C26 


BOBBIE WHITE, § IN THE DISTRICT COURT 

§ 

Plaintiff, § 

§ 

vs. § 26rn JUDICIAL DISTRICT 

§ 

JOSEFINO BENCOMO III, § 

§ 

Defendant. § WILLIAMSON COUNTY, TEXAS 

AFFIDAVIT OF BOBBIE WHITE 

STATE OF TEXAS § 

§ 

COUNTY OF WILLIAMSON § 

Before me, the undersigned authority, this day appeared Bobbie White, affiant herein, and 

on her oath stated as follows: 

"My name is Bobbie White. I am over eighteen (18) years of age and am of sound mind. I 

am in all ways competent to make this affidavit, which is based upon my personal knowledge. I 

hereby affirm that all ofthe facts stated herein are true and correct. 

1. I am the Plaintiff in the above-captioned cause. I have read Plaintiffs Motion for 

Summmy Judgment and hereby verify that the factual allegations contained therein are true and 

correct to the best of my knowledge. 

2. I further state and depose that Defendant Josefino Bencomo III has never provided 

to me an annual statement of my account with him to show me how much I have paid to him, how 

much I had left to pay, and how many payments I had remaining under our contractual agreement. 

Mr. Bencomo has also never given me a tax statement that I could use to write off the mortgage 

interest that I have paid to him, despite many requests that I have made to him for one." 

Further affiant saith not. 

Signed: ~1Y . ; · . ·. /)'JU 

'BOblJie White 

SUSCRIBED AND SWORN TO BEFORE ME by Bobbie White on this the 19oe day of 

July 2014, to certify which witness my hand and seal of office. 

TONY PITTS 
 lk/ eommlsS\on expires
 June 09, 201B 


Notaty Public, in and for the State ofTexas 

AFFIDAVIT OF BOBBIE WHITE - PAGE 1OF1 

EXHIBIT :b­
CAUSE NO. 14-0374-C26 


BOBBIE WHITE, § IN THE DISTRICT COURT 

§ 

Plaintiff, § 

§ 

vs. § 26rn JUDICIAL DISTRICT 

§ 

JOSEFINO BENCOMO III, § 

§ 

Defendant. § WILLIAMSON COUNTY, TEXAS 

AFFIDAVIT OF TONY A. PITTS 

STATE OF TEXAS § 


§ 


COUNTY OF WILLIAMSON § 


Before me, the undersigned authority, this day appeared Tony Pitts, affiant herein, and on 

his oath stated as follows: 

"My name is Tony Pitts. I am over eighteen (18) years of age and am of sound mind. I 

have never been convicted of a felony or a crime involving moral turpitude. I am in all ways 

competent to make this affidavit, which is based upon my personal knowledge. I hereby affirm 

that all of the facts contained herein are true. 

1. I am an attorney, licensed by the State of Texas, where I maintain an office in 

Round Rock, Texas, as a solo practitioner in the areas of civil litigation and probate law. I 

typically charge $200.00 per hour for my services, which is commensurate with the fees 

customarily charged by an attorney in the community with my time, talent, and experience. 

Bobbie White retained me at this rate to pursue her claims against Josefino Bencomo III. 

2. Bobbie White has incurred $2,600.00 in attorney's fees and expenses to have me: 

1) file suit against Josefino Bencomo III for liquidated damages under Tex. Prop. Code § 5.077; 

2) research and file her motion for summary judgment concerning the same; and 3) undertake 

other legal tasks related to enforcement of this claim. Said fees and expenses were reasonably 

and necessarily incurred given the complexity of the issues and Defendant's resistance to being 

found liable for these damages. My client is expected to incur another $1,000.00 in attorney's 

fees for my time spent to prepare for and attend the hearing on her Motion for Summary 

Judgment and respond to and argue against Defendant's opposing summary judgment motion. 

3. I have reviewed Plaintiff's Motion for Summary Judgment and hereby certify that 

attached to Plaintiff's Motion as Exhibit "A" is a true and correct copy of Defendant's Response 

to Plaintiff's Requests for Admission as served upon the Plaintiff on June 9, 2014, via facsimile." 

Further affiant saith not. 

AFFIDAVIT OF TONY A. PITTS - PAGE 1 OF 2 

EXHIBIT G 
SUSCRIBED AND SWORN TO BEFORE ME by Tony Pitts on this the 18111 day of July, 

2014, to certify which witness my hand and seal of office. 

[1~\C\=Q lQ_, \JU!L\,U\_. \l~ Notary Public, in and for the State ofTexas 

AFFIDAVIT OF TONY A. PITTS - PAGE 2 OF 2 
EXHIBIT G
 1

 1 NO. 03-14-00812-CV

 2 REPORTER'S RECORD 

 3 VOLUME 2 OF 4 VOLUMES 

TRIAL COURT CAUSE NO. 14-0374-C26 

 4

 5 BOBBIE WHITE ) IN THE DISTRICT COURT 

) 

 6 vs. ) WILLIAMSON COUNTY, TEXAS 

) 

 7 JOSEFINO BENCOMO, III ) 26TH JUDICIAL DISTRICT 

 8

 9

10 _____________________________________________ 

11 HEARING ON MOTIONS FOR SUMMARY JUDGMENT

_____________________________________________ 12

13

14

15

16

17

18

19 On the 12th day of August, 2014, the following

20 proceedings came on to be held in the above-titled and

21 numbered cause before the Honorable Billy Ray

22 Stubblefield, Judge Presiding, held in Georgetown,

23 Williamson County, Texas. 

24 Proceedings reported by computerized stenotype

25 machine.
 2

 1 APPEARANCES

 2

 3 MR. TONY A. PITTS SBOT NO. 24060429 

Law Office of Tony A. Pitts 

 4 PO Box 5369

Round Rock, Texas 78683

 5 Telephone: (512)825-5545

Fax: (512)244-4355

 6 Attorney for Plaintiff

 7

 8 MR. FRED E. WALKER, PC SBOT NO. 20700400

Fred E. Walker, PC

 9 609 Castle Ridge Road, Ste. 220

Austin, Texas 78746

10 Telephone: (512)330-9977

Fax: (512)330-1686

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 1 I N D E X

 2 VOLUME 2 

 3 HEARING ON MOTIONS FOR SUMMARY JUDGMENT 

 4 Page Vol 

 5 AUGUST 12, 2014 

 6 Announcements 4 2 

 7 Mr. Walker's Argument 4 4 

Mr. Pitt's Argument 10 4 

 8 Mr. Walker's Response 16 4 

Mr. Pitt's Response 20 4 

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Court Reporter's Certificate 29 4 

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 1 PROCEEDINGS - AUGUST 12, 2014

 2 THE COURT: 14-0374, Bobby White versus

 3 Josephino Bencomo, III. And announcements, please.

 4 MR. PITTS: Tony Pitts for the Plaintiff,

 5 Bobby White.

 6 MR. WALKER: Fred Walker for Josephino

 7 Bencomo, Defendant, Your Honor.

 8 THE COURT: And this is Hearing on a Motion

 9 for Summary Judgment. Correct?

10 MR. PITTS: Yes. We each have motions for

11 summary judgment. 

12 THE COURT: Dueling motions for summary

13 judgment. And all prerequisites of law have been met, the

14 necessary time has elapsed?

15 MR. PITTS: Yes, Your Honor.

16 MR. WALKER: Yes, Your Honor.

17 THE COURT: Good. Who filed first?

18 MR. WALKER: I filed first, Your Honor. But

19 if Mr. Pitts would like to go first because he's Plaintiff,

20 that would be fine with me.

21 MR. PITTS: There was no response to mine,

22 so -- we can let him go first and I can address the issues

23 he raises.

24 MR. WALKER: We have no disputes, Your

25 Honor, to the facts that are set forth in Mr. Pitts' Motion
 5

 1 for Summary Judgment.

 2 This is a real simple question, Your Honor.

 3 The case that needs to be determined is whether a note with

 4 a deed of trust is subject to Chapter 5, subchapter D of

 5 the Texas Property Code that deals with executory

 6 contracts.

 7 Mr. Pitts argues that the deed of trust is

 8 an executory contract and, as a basis for that, he relies

 9 upon a line of cases that actually do say that. They say

10 that deeds of trust are executory contracts because if

11 you've got a vendor's lien that is retained in the deed,

12 that although the purchaser of the property has the legal

13 title to the property, that equitable ownership doesn't

14 pass until the final payment is made and the deed of trust

15 is released.

16 So the question for this Court to determine

17 is whether the term "executory contract" in the Property

18 Code, subchapter D, applies to these types of transactions.

19 And I think that the legislative history is clear, the case

20 law is clear, that this does not apply. This particular

21 subchapter of the Property Code was originally implemented

22 by the Legislature because of a problem that they were

23 having along the border with the colonias. Contracts for

24 deed, of course, are different from real estate

25 transactions where you've got the title to the property
 9

 1 versions of the provisions that had applied only in certain

 2 economically distressed counties. The revised provisions

 3 are in subchapter D of Chapter 5 of the Texas Property

 4 Code. 

 5 So the Attorney General's Office recognizes

 6 that the type of contracts -- the type of executory

 7 contracts that are intended to be regulated by subchapter D

 8 are contracts for deed.

 9 And there are many cases in the response

10 that I filed this morning to the Defendant's -- to the

11 Plaintiff's Response to our Motion for Summary Judgment

12 that kind of goes through that, so I won't take the Court's

13 time because I know that you had a very lengthy hearing.

14 But if subchapter D applies to a note with a deed of trust,

15 how are we to foreclose on this property? Do we foreclose

16 under the deed of trust, or do we foreclose under

17 subchapter D? And what effect would that have on real

18 estate transactions throughout the State? 

19 I have nothing further, Your Honor.

20 THE COURT: Mr. Pitts, if you will pardon me

21 just a moment.

22 MR. WALKER: Your Honor, if I might add one

23 thing. Mr. Pitts is correct, we didn't file a Response to

24 their Motion for Summary Judgment. I don't contest any of

25 the facts that they've brought up. If, in fact, this Court
 10

 1 rules that -- that Chapter 5 of the Texas Property Code

 2 applies to this transaction, his calculations are correct

 3 and I don't have any objection to the amount of the fees

 4 that he's asking for.

 5 THE COURT: I'm sorry. 

 6 Go ahead.

 7 MR. PITTS: Thank you, Your Honor.

 8 There is -- there is some terminology, I

 9 think, that Mr. Walker's used to describe what we're asking

10 for and what we're seeking. We have to clarify the terms.

11 We're not actually saying that the deed of trust is what

12 makes this an executory conveyance because the deed of

13 trust doesn't do that. Deed of trust is what you find in

14 conventional mortgages where you have a bank who has

15 financed the purchase between a buyer and a seller. The

16 buyer will generally convey the property to the bank by --

17 in trust or to -- excuse me -- to the trustee that the bank

18 selects in trust, and that's what you have as your deed of

19 trust.

20 What makes this particular conveyance an

21 executory conveyance is the warranty deed and vendor's

22 lien, because what that does is it sets up obligations from

23 the buyer over a period of time, making installment

24 payments, before actual title is transferred to the buyer.

25 Now, Mr. Walker has said that the transfer, the title
EXHIBIT H
MOTION FOR RECONSIDERATION – PAGE 1 OF 8 

CAUSE NO. 14-0374-C26 

BOBBIE WHITE, § IN THE DISTRICT COURT 

§ 

Plaintiff, § 

§ 

VS. § 26TH JUDICIAL DISTRICT 

§ 

JOSEFINO BENCOMO III, § 

§ 

Defendant. § WILLIAMSON COUNTY, TEXAS 

MOTION FOR RECONSIDERATION

TO THE HONORABLE JUDGE OF SAID COURT: 

NOW COMES, in the above-captioned cause, Bobbie White, Plaintiff herein, who files 

this Motion for Reconsideration, and would respectfully show the Court as follows: 

I.

PROCEDURAL HISTORY

1.1 The Court heard argument from both parties on their respective motions for 

summary judgment on August 12, 2014. 

1.2 The Court advised the parties of its ruling in favor of Defendant via teleconference 

on August 15, 2014. 

1.3 An order for Final Summary Judgment has not yet been entered by the Court. 

II.

SUMMARY

During the hearing on their respective summary judgment motions, the Parties mutually 

agreed that there were no material facts in dispute that would preclude summary judgment in this 

cause and that their respective arguments against one another were purely legal. Plaintiff 

established that the real estate transaction that took place between the Parties had all the 

Filed: 9/15/2014 9:52:06 PM

Lisa David, District Clerk

Williamson County, Texas

Ellie Saucedo

Envelope# 2500689
MOTION FOR RECONSIDERATION – PAGE 2 OF 8

characteristics of an executory contract for conveyance of real property as defined under 

Subchapter D of the Texas Property Code, and Defendant conceded as much. Defendant, 

however, argued that because a Warranty Deed with Vendor’s Lien in favor of the Plaintiff had

been executed, which gave Plaintiff actual title to the subject property subject to a Deed of Trust, 

the transaction was no longer executory and Subchapter D did not apply. Therefore, the operative 

question to be answered by the Court was whether or not a Warranty Deed with Vendor’s Lien 

wherein superior title to the subject property has been retained, coupled with a Deed of Trust, 

caused an executory contract for conveyance of real property to no longer be executory. 

Ultimately, the Court ruled that a Warranty Deed with Vendor’s Lien and Deed of Trust did 

operate to make the contract no longer executory. Plaintiff 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. Plaintiff respectfully requests that the Court reconsider 

and reverse its ruling, and find favor of Plaintiff.

III.

ARGUMENTS AND AUTHORITIES

A. The Warranty Deed With Vendor’s Lien Renders 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 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 
MOTION FOR RECONSIDERATION – PAGE 3 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 4 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 5 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 ownersellers could avoid applicability of Subchapter D by simply having buyers execute a real estate 
MOTION FOR RECONSIDERATION – PAGE 6 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 7 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 8 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