## CAUSE NO

. 03

- 14

- 00812

- CV
IN THE COURT OF APPEALS FOR THE 3 RD 

## JUDICIAL DISTRICT OF TEXAS AUSTIN, TEXAS

_

_________________________________________________________________ BOBBIE WHITE , Appellant,
VS.
JOSEFINO BENCOMO III, Appellee

__________________________________________________________________ APPELLANT’S BRIEF
From the District Court, 26 th 

## 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

CLERKii 

## 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 att orney rep resenting 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.comiii 

## II.
TABLE OF CONTENTS
I. IDENTITY OF PAR T IES AND COUNSEL

......... ... ......... ..... i i
II. TABL E OF CONTENTS

............ .......... ............ i ii
III. INDEX OF AUTHORITIES

......... ........................ iv
IV. STATEMEN T OF THE CASE

........................... ... .. ... 1
V. STATEMENT REGARDING ORAL ARGUMENT

. ............ ...... 2
VI. ISSU E S PRESENTED

..................... ...... 2
VII. STATEMENT OF THE FACT S ........................... 3
VIII. SUMMARY OF THE ARGUMENT ............................ 5
VIII. ARGUMENT AN D 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 E xecutory ... 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. CERTIFICA TE OF COMPLIANCE ....................................12
X I

. V ERI FICATION

........................... .........12
XI I

. CERTIFICA TE OF SERVICE

.................... ............... 13
XII I

. A P PENDIX

........ ......... .................. 14iv 

## III.
INDEX OF AUTHORITIES
A. TEXAS STATUTES Tex. Prop. Code § 5.062

............................................ 1
Tex. Pro p. Code § 5.063 – 5.066 ............................................ 9 Tex. Prop. Code § 5.069 ...........................................10 Tex. Prop. Co de § 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.

— Amar illo 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.A pp.

— 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 [14 th Dist.] 2011, pet. dismissed). .................... 10 G&H Towing Co. v. Magee , 347 S.W.3d 293, 297 (Tex. 2011)..................... 101 

## 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 u ncontested 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 whe ther 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 judgme nt, the trial c ourt 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, unsup ported by the law, and threatening of the important policy considera tions 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 su mmary 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’ con flicting 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.
ISSUE S PRESENTED
Does a warran ty deed with vendor’s lien convey sufficient title to bring an executory contract for conveyance of real propert y out from under the applicability of Subchapter D of the Texas Property Code ? If not, does Appellee have an obligation to comply with the prov isions 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 FACTS 1


## 7.1 Mrs. White and her husband, Georg e 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 reside nce. 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 execute d a Real Estate Lien Note for $35,400.00 2 

## and Deed of Trust 3 

## 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 Lien 4 

## , where in 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 M otions 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 Ho use. 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 giv e 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 prov ide 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 B encomo.5 

## VIII. SUMMARY OF THE ARGUMENT Appellant ar gues 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 i ts intended purpose by permitting a seller to sidestep the duti es 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 no t 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 for6 

## decades been recognized in Texas jurisprudence as an ex ecutory 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); Zapa ta 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 de nied) (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 instal lments 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 de nied) (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 tra nsaction7 

## 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 t o 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 trans action 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] de ed 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 descr ibed 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. De eds 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 Fl ores v. Millenium Interests, Ltd. , 185 S.W.3d 427, 435 (Tex. 2005) (Wainwright, J., concurring op.) (observing8 

## in traditional mortgage, legal title is conveyed upon closing). Deeds of trust enabled mortgagees to foreclose by nonjudicial means upon mortgag ed 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 co nveyance 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 T ex. 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 i t is incongruous to maintain that such a purchaser

can en cumber 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 o f 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 relation ship 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 after9 

## she purchased the property, despite her repeated requests for accountings.
M oreover, 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, App ellant 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 Prope rty 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 someth ing 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 (§§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 convention al mortgage counterparts. If owner

- sellers could avoid applicability of Subchapter D by simply having buyers execute a real estate lien note and dee d 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 Hol dings, Inc. v. Chicago Bridge & Iron Co. , 325 S.W.3d 265, 270 (Tex.App.

— Houston [14th Dist.] 2011, p et. dismissed). By arguing that Subchapter D does not apply to transactions involving real estate lien notes secured by deeds of trust, where title is stil l 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 Moti on. Appellant hereby objects to the trial c ourt’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 revers ible 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. A11 

## finding for this relief was no t requested in Appellee ’s Motion and should not have been ruled upon by the trial c ourt. Appellant therefore requests that this Court reverse this relief and vacate this portion of trial court’s summary judgment order

. X.
PRAYER WHEREFORE, Appellant pray s 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 ,

1213 

## X I I I.
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 f or 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 Pitts14 

## XI V . 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 Trans cript

– 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# 2556759Public 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 

## J osephino 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· f F 

## Cfto 

# #- f.Z,

# CA5lj{)2--~ O I 

### O 

# cf-f} 7 

# ;-JV'

.. -. 

### WARRANTY DEED WITH VENDOR'S LIEN

Date: November 21, 2001
Grantor: JOSEFINO BENCOMO, Ill, owning, occupying and claiming other property as homestead
Grantor's Mailing Address (including county): 4229 Boy Scout Lane, El Paso, El Paso County, Texas 79922 

### -.:r '.'·4 Grantee: BOBBIE WIDTE and husband, GEORGE WIDTE 

### '1' :0 Grantee's Mailing Address (including county): 701 Saunders Drive, Round Rock, Williamson County, Texas 78664 

## :0 :J Fl 

### :J Consideration: TEN AND N0/100 DOLLARS ($10.00) and other valuable consideration, and the further consideration of 

### O (i) the execution and delivery of Grantee's one certain promissory note dated of even date, in the principal ="4 sum of $ 82,600.00 , payable to the order of LONG BEACH MORTGAGE COMPANY, in monthly installments and bearing interest as therein provided, containing the usual clauses providing for acceleration of maturity and for attorney's fees and secured by a first, primary and superior vendor's lien retained in this deed and by a first, primary and superior deed of trust of even date from Grantee to TROY GOTSCHALL, Trustee, and (ii) the execution and delivery of Grantee's one certain promissory note of even date herewith, in the principal sum of $ 35,400.00 , payable to the order of Granter in monthly installments and bearing interest as therein provided, containing the usual clauses providing for acceleration of maturity and for attorney's fees and secured by a second, subordinate and inferior vendor's lien retained in this deed and by a second, subordinate and inferior deed of trust of even date from Grantee to LARRY MOLINARE, Trustee.

Property (including any improvements): Lot 7, Block "A", of THE SETTLEMENT

- SECTION ONE, an addition in and to the City of Round Rock, in Williamson County, Texas, according to the map or plat thereof recorded in Cabinet F, Slides 78­ 79, Plat Records, Williamson County, Texas.

Reservations from and Exceptions to Conveyance and Warranty: This conveyance is expressly made and accepted subject to all valid and subsisting easements, restrictions, reservations, covenants and conditions relating to said Property, to the extent the same are valid and enforceable against said Property, as same are shown by instruments filed of record in the office of the County Clerk of Williamson County, Texas.

Grantor, for the consideration and subject to the reservations from and exceptions to conveyance and warranty, GRANTS, SELLS, and CONVEYS to Grantee the property, together with all and singular the rights and appurtenances thereto in any wise belonging, TO HA VE AND HOLD it to Grantee, Grantee's heirs, executors, administrators, successors, or assigns forever. Granter binds Grantor and Grantor's heirs, executors, administrators, and successors to WARRANT and forever DEFEND all and singular the property to Grantee and Grantee's heirs, executors, administrators, successors, and assigriS against every person whomsoever lawfully claiming or to claim the same or any part thereof, except as to the reservations from and exceptions to conveyance and warranty.

The Vendor's lien against and superior title to the property are retained until each note described is fully paid

'Varranty Deed \Vith Vendor 1 s 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)**·-~_i.~** 

### i

# ~niQ; 

# Oieor0n 

# + 'E>o bb1c: ltJh"l 

# k FILED AND RECORDED 'Cf \ 

## OFFICIAL PUBLIC RECORDS 

# tOl 5>flU{)ja,rS 

# !Or,

1

# ~at '£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 1 s 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~** Mak et: BOBJJD; WHITE nnd h\l.S\>and, GBORGE WHITE Pay<": JOSBFINO BENCOMO, ID FiMI Maturity Date: As stated in said note. 

### " Tcrnis of Payment (op<ioonl): As provld."<l tho rein.

Properly (inclutling any improvements): Lot 7 1 Block 11 A 0

, of THE SETI'LEMENT
y SECTION ONE, an addition iil and to the City of Round 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 County 1 Texas 1 and Gtantors expressly covenant and agree that rhould default be made in 1he pa_yrn¢nt of satd S82 1 600.00 1 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 af 1he 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 of the County Clerk of\Villiamson Count}',**T~xas,**
Por value received and to 5'cure payment of tlte note, G:tantor conveys the Property to Trustee in trust. Gtantor warrants and agrees to defend the tille lo the Property. Jf Granlor perfomlS all the covenants and pays the Note according to its teJlllS, thls Deed of Trust 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 t0Denefidary 1 an }n.suamce policy that a. coven; al1**improvomcn~** for their full insurable valuo as. determined when the policy is hsued and icnc\ved 1 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! Grant or is personally liable 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 of Trust. 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 of the sale, pay, in this order: ;l. expenses of foreclosure, including a conunissioa to Trustee of 5% of the bid;_ b. to Benoti.ciazy 1 the fWl amount of principal, interest, attorney's fees 1 ;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. If any of the Proferty is sold under !his Deed of Trust, Grant or shall immediately surrender possession to the purchaser. Jf Grantor 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, Grant or 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 of Beneficiary's olhor rights orrerned!es. lf Grantor becomos. Yohmtary or Involuntary banlcrupt, Beneficiary's filing a proof of claun In bankruptcy \vill be 1an!amount to the appointment of a 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!trrunfpuEXHIBIT "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. I 0. The lerm note lnd11d" a\\ sums secured by Uris Deed ofTrust. 11. This Deed of Trust shall bind, inure to the benefit of, and be exercised by successors in Interest of all 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 of Trust ls given as adrutiona! security for tlie pa)'lllent of soid indebtedness. lf aU or any part of lho l'!opcrty is sold 1 conve.yed 1 leased for a period longer than three (3) years, leased \vith an option lo purclmse 1 or otherwise soJd {including contract for deed), \vithout the prior written consent of Beneficiary, then the Beneficiary may, at his opti.on 1 declare the outstandlng principal balance of the Note, pluS accrued futcre-st, to be immedfotl3-ly due and payable. The creation of a subordinate lien. any sale thorem1der 1 any deed under threat or order of condemnation. any conveyance so!e!y between Grantors, tlie passage of1itle by reason of the death of a Maker or by operation of law sball not be conslnled as a sale or conveyanco of tl1e Property. · Granto rs 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 

# f Ilrn**~NO REffi~~rn**  OFFICIAL PUBLIC RECORDS

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# Scout. 

# lri ·**~;:~** 

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# 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 transac tion 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 o r 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 politica l 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 18 0 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 transactio n 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 t he 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 fo r 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 t his 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 i nclude 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) Th e 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 an d 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 t he 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 an d 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 w ithin 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 amen ded 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 e xecutory 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 purcha ser'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 PROPERT Y 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 condu ct 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

## exce ed 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 p erson 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 t he 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 rescis sion 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, 2 001. 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.

## SELLE R'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 p roperty 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 i n 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) doe s 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 t he 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 Sectio n 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 payme nts 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, 2 001. 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 post marked 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 receive d 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 mo re 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, 2 005. 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 wi th 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 t he 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 o f 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 performan ce 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 an d 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 S ubsections (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 constitute s compliance with this section. Added by Acts 2005, 79th Leg., Ch. 978 (H.B. 1823 ), Sec. 6, eff. September 1, 2 005.

# EXHIBIT FPLAINTIFF’S MOTION FOR SUMMARY JUDGMENT – PAGE 1 OF 7 

### CAUSE NO. 14-0374-C26 BOBBIE WHITE, § IN THE DISTRICT COURT § Plaintiff, § § VS. § 26 TH 

### 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 file s 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 AllisonPLAINTIFF’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 purc hase 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 Esta te 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 Ven dor’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. T hereafter, 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 t o 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 Ja nuary 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 abou t 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 p urposes. 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. ARGUMENT S 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. N ational 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 rais e 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 questionPLAINTIFF’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 is sue. 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 an nual 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 con cerning 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 a n 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 appl icability of the Subchapter D for certain executory contracts. See T ex. 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 Plain tiff for use as her r esidence, 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 N ote 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 contempla ted 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 sel ler 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 31 st 

### 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 purch aser’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 damage d 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
f aith 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 purch aser of the current status of their contractual relationship ” ). In the instant matter, however, Defendant has admittedly made noPLAINTIFF’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 stan dard.
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 Pla intiff has adduced no evidence indicating that Defendant engaged in two or more sales transactions. Therefore, b ecause Defendant has not provided Plaintiff with a single annual statement for the last 13 years of their executory co ntract, he is liable to h er for $1,300.00, plus reasonable attorney’s fees.
V.
PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff Bobbie White respectfully request s 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 26 th 

### Judicial District Court of Williamson County, Texas. /s/ Tony Pitts

_____________________________________ Tony Pitts

CERTIFICATE OF SERVICE
I hereby certify that on this the 18 th 

### 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 A ustin, TX 78746 512.330.1686 (Fax) Attorneys for Defendant /s/ Tony Pitts

___________________________________________ Tony PittsFrom: 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, 

### 2007 1 2008, 2009, 2010, 2011, or 2012.


### RESPONSE: ADMJ'ITED
8. Admit or deny !hut YOU refused one or more of Plaintiffs' 

### i·equest for aFrom: 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 of the 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 of Texas 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 18 111 

### 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 of Texas

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 COUR T ) 6 vs. ) WILLIAMSON COUNTY, TEXAS ) 7 JOSEFINO BENCOMO, III ) 26TH JUDICIAL DISTRI CT 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-title d 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 11 Attorney for Defendant 12 13 14 15 16 17 18 19 20 21 22 23 24 25

### 3 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 9 Court Reporter's Certificate 29 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

### 4 1 PROCEEDINGS - AUGUST 12, 2014 2 THE COURT: 14-0374, Bobby White versus 3 Josephino Bencomo, III. And announcements, pleas e. 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 t he issues 23 he raises. 24 MR. WALKER: We have no disputes, Your 25 Honor, to the facts that are set forth in Mr. Pit ts' 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, subchapt er 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, h e relies 9 upon a line of cases that actually do say that. They say 10 that deeds of trust are executory contracts becau se if 11 you've got a vendor's lien that is retained in th e deed, 12 that although the purchaser of the property has t he legal 13 title to the property, that equitable ownership d oesn'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 P roperty 18 Code, subchapter D, applies to these types of tra nsactions. 19 And I think that the legislative history is clear , the case 20 law is clear, that this does not apply. This par ticular 21 subchapter of the Property Code was originally im plemented 22 by the Legislature because of a problem that they were 23 having along the border with the colonias. Contr acts for 24 deed, of course, are different from real estate 25 transactions where you've got the title to the pr operty

### 9 1 versions of the provisions that had applied only in certain 2 economically distressed counties. The revised pr ovisions 3 are in subchapter D of Chapter 5 of the Texas Pro perty 4 Code. 5 So the Attorney General's Office recognizes 6 that the type of contracts -- the type of executo ry 7 contracts that are intended to be regulated by su bchapter 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 -- t o the 11 Plaintiff's Response to our Motion for Summary Ju dgment 12 that kind of goes through that, so I won't take t he Court's 13 time because I know that you had a very lengthy h earing. 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 Re sponse to 24 their Motion for Summary Judgment. I don't conte st 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 Propert y Code 2 applies to this transaction, his calculations are correct 3 and I don't have any objection to the amount of t he 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 t he terms. 11 We're not actually saying that the deed of trust is what 12 makes this an executory conveyance because the de ed 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 selle r. The 16 buyer will generally convey the property to the b ank by -- 17 in trust or to -- excuse me -- to the trustee tha t the bank 18 selects in trust, and that's what you have as you r deed of 19 trust. 20 What makes this particular conveyance an 21 executory conveyance is the warranty deed and ven dor's 22 lien, because what that does is it sets up obliga tions from 23 the buyer over a period of time, making installme nt 24 payments, before actual title is transferred to t he buyer. 25 Now, Mr. Walker has said that the transfer, the t itle

# EXHIBIT HMOTION FOR RECONSIDERATION – PAGE 1 OF 8 

### CAUSE NO. 14-0374-C26 BOBBIE WHITE, § IN THE DISTRICT COURT § Plaintiff, § § VS. § 26 TH 

### 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 file s 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# 2500689MOTION FOR RECONSIDERATION

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### 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 Li en in favor of the Plaintiff had been executed, which gave Plaintiff actual title to the subject property subject to a Deed of Tr ust , 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 Wa rranty Deed with Vendor’s Lien wherein superior title to the subject property has been retain ed, 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 exec utory. Plaintiff conte nds 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 i t s ruling , and find favor of Plaintiff.
III . ARGUMENT S 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 contrac ts for conveyance of real property to which Subchapter D was meant to apply. However, a warranty deed with vendor’s l ien , wherein superior title to the property is retained , has the same lega l effect as a contract for deed. See Norton v. Norton , No. 07

- 0 8

- 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 remain s in the seller. Cowden v. Bell , 293 S.W.2d 6 11, 614 (Tex.App.

— San AntonioMOTION FOR RECONSIDERATION

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### 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)

. Th erefore, 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 reta ined 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 prop erty 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 sa tisfies 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 t hey have conventional mortgage relationship , not an executory one . This is erroneou s 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 protectio ns found in a conventional mortgage relationship exist i n the relationship between the P arties. “ Black’s LawMOTION FOR RECONSIDERATION

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### 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 goe s 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 e mpowers 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, convey ed said in terest to a trustee, in trust, to secure its loa n to the lender . Deeds of trust enabled mortgagees to foreclose by nonjudicial means upon mortgaged property and sell it at au ction 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 f rom 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 tit le 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 in dustry, 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 modificati on 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 P laintiff withMOTION FOR RECONSIDERATION

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### 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 accounti ng, 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 De fendant. 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 ac count, when that statute was enacted to institute in owner

- financing arrangements some of the protections foun d in the conventional mortgage industry . Indeed, the only thing conventional about the transaction between Plaintiff and Defendant is that it ref lects 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 o wner - 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 indust ry, parti cularly in Las Colinas, the Texas L egislature , 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 r ight to notice and an opportunity to cure any default (§§ 5.063

- 65), equity protection (§ 5.066), disclosures from the seller (§ 5.069), and annual statements of account (§ 5.077); items already enjoyed by their convential mortgage counterparts. If owner sellers could avoid applicability of Subchapter D by simply having buyers execute a real estateMOTION FOR RECONSIDERATION

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### 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 meaningl ess . 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 th at 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 th at 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 M ot ion 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 th at 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 portio n of its order.
I V. 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 payme nts due on the note . Defendant must therefore comply with Subchapter D as it pertain s 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

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### Defendant’s failure to co mply 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 f or Summary Judgment on Pleadings, which

s hould have been denied. Instead, Plainti ff’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 Wh ite respectfully request s that the Court grant her the following relief:

a. r econsideration of its ruling of August 15, 2014; b. d enial of Defendant’s Motion fo r Summary Judgment on Pleadings, in its entirety ;

c. g ranting 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 entitle d. 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 WHITEMOTION FOR RECONSIDERATION

– PAGE 8 OF 8 

### CERTIFICATE OF SERVICE I hereby certify that on this the 15 th 

### 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 R oad, Ste. 220 Austin, TX 78746 512.330.1686 (Fax) Attorneys for Defendant /s/ Tony Pitts

___________________________________________ Tony Pitts