                                                                                       ACCEPTED
                                                                                  03-14-00632-CV
                                                                                          3771129
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                             1/14/2015 3:40:26 PM
                                                                                JEFFREY D. KYLE
                                                                                           CLERK
                         No. 03-14-00632-CV

                                                                  FILED IN
                                                           3rd COURT OF APPEALS
                        In The Court of Appeals                AUSTIN, TEXAS
                 For the Third District Court of Appeals   1/14/2015 3:40:26 PM
                              Austin, Texas                  JEFFREY D. KYLE
                                                                   Clerk


                          KARL B. BAILEY
                             Appellant,

                                   v.

                          MIDFIRST BANK
                             Appellees.




ON APPEAL FROM THE 250TH JUDICIAL DISTRICT COURT, TRAVIS COUNTY, TEXAS
              TRIAL COURT CAUSE NO. D-1-GN-14-002430


                       APPELLANT’S BRIEF



                                 WILLIAM B. GAMMON, SBN: 07611280
                                 ANTHONY G. READ, SBN: 24056184
                                 GAMMON LAW OFFICE, PLLC.
                                 1201 Spyglass Drive, Suite 100
                                 Austin, Texas 78746
                                 Phone: 512-444-4529
                                 Fax: 512-545-4279
                                 Firm@GammonLawOffice.com
                                 COUNSEL FOR APPELLANT


                  ORAL ARGUMENT REQUESTED
                         No. 03-14-00632-CV


                        In The Court of Appeals
                 For the Third District Court of Appeals
                              Austin, Texas


                          KARL B. BAILEY
                             Appellant,

                                   v.

                          MIDFIRST BANK
                             Appellee.




ON APPEAL FROM THE 250TH JUDICIAL DISTRICT COURT, TRAVIS COUNTY, TEXAS
              TRIAL COURT CAUSE NO. D-1-GN-14-002430


                       APPELLANT’S BRIEF



                                 WILLIAM B. GAMMON, SBN: 07611280
                                 ANTHONY G. READ, SBN: 24056184
                                 GAMMON LAW OFFICE, PLLC.
                                 1201 Spyglass Drive, Suite 100
                                 Austin, Texas 78746
                                 Phone: 512-444-4529
                                 Fax: 512-545-4279
                                 Firm@GammonLawOffice.com
                                 COUNSEL FOR APPELLANT


                  ORAL ARGUMENT REQUESTED

                                                               BAILEY V. MIDFIRST BANK
                                                                      APPELLANT’S BRIEF
                                                           CAUSE NO.: NO. 03-14-00632-CV
                                                                              PAGE 2 OF 34
                 IDENTITY OF PARTIES AND COUNSEL

Appellant:                   Appellant’s Counsel:
Karl B. Bailey               WILLIAM B. GAMMON, SBN: 07611280
                             ANTHONY G. READ
                             GAMMON LAW OFFICE, PLLC.
                             1201 Spyglass Drive, Suite 100
                             Austin, Texas 78746
                             Phone: 512-444-4529
                             Fax: 512-545-4279
                             Firm@GammonLawOffice.com

Appellee:                    Appellee’s Counsel:
MidFirst Bank                CHRIS H. POCHYLA, SBN: 24032842
                             BARRETT DAFFIN FRAPPIER TURNER &
                             ENGEL, LLP
                             15000 Surveyor Boulevard, Suite 100
                             Addison, Texas 75001
                             Telephone: 972-340-7955
                             Facsimile: 972-341-0734




                                                       BAILEY V. MIDFIRST BANK
                                                              APPELLANT’S BRIEF
                                                   CAUSE NO.: NO. 03-14-00632-CV
                                                                      PAGE 3 OF 34
                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................3
TABLE OF CONTENTS............... ……………………………................4
TABLE OF AUTHORITIES .....................................................................6
STATEMENT OF THE CASE ..................................................................9
RECOMMENDATION ON ORAL ARGUMENT ...............................10
ISSUES PRESENTED ..............................................................................11
STATEMENT OF THE FACTS .............................................................12
SUMMARY OF THE ARGUMENT .....................................................15
ARGUMENT AND AUTHORITIES ......................................................17

      I. Midfirst's Traditional Motion for Summary Judgment……….17

              A. Standard of Review- Tex. R. Civ. P. 166a…………..…..17

              B. The Trial Court’s Summary Judgment is in Error
              Because Bailey has Standing to Bring his Claims as
              Successor, Assignee Bound and Benefitted by the Deed of
              Trust or a Person with an Interest in the Property……….18

              C. Bailey has Standing to Challenge The Assignment to
              MidFirst Bank ……………....…….……….………..……....20

              D. The Trial Court's Judgment is in Error Because Bailey
              was Entitled to Notice of the Foreclosure Sale by
              Statute……………………….……………………………….21

              E. The Trial Court's Judment is in error Because There are
              Genuine Issues of Material Fact as to When MidFirst Bank
              Knew     of    the    SPP    Deed      and   the    Bailey
              Deed………………………………………………………….22

              F. Bailey has a Cause of Action for Breach of Contract….24

              G. Bailey's Claim for Void Foreclosure is Supported by
              Evidence……………………………………………………24



                                                                         BAILEY V. MIDFIRST BANK
                                                                                APPELLANT’S BRIEF
                                                                     CAUSE NO.: NO. 03-14-00632-CV
                                                                                        PAGE 4 OF 34
                H. Bailey's Quite Title Claim Raises Material Fact
                Issues…………………………………………………………25

      II.       Midfirst Bank's No-Evidence Motion for Summary
                Judgment…………………………………………………….26

                A. Standard of Review- Tex. R. Civ. P. 166a……………….26

                B. Bailey is Entitled to Equitable Estoppel/Unjust
                Enrichment…………………………………………………..27

                C. Bailey Provided More Than a Scintilla of Proof to Support
                Breach of Contract, Void Foreclosure and Quiet Title
                Claims………………………………………………………..28

      III.      Midfirst Bank's Motion for Summary Judgment on its
                Counterclaims……………………………………………….29

                A. Standard of Review- Tex. R. Civ. P. 166a……………29

                B. MidFirst Bank's Request for Declaratory Judgment is
                Improper…………………………………………………….30

                C. This Suit Does Not Support a Writ of Possession
                Counterclaim……………………………………………….31

      IV.       Bailey's Motion for Summary Judgment MidFirst Bank's
                Counterclaims……………………………………………….32

PRAYER ....................................................................................................33
CERTIFICATE OF COMPLIANCE .....................................................33
CERTIFICATE OF SERVICE………………………………………...34
APPENDIX ...............................................................................................35




                                                                                 BAILEY V. MIDFIRST BANK
                                                                                        APPELLANT’S BRIEF
                                                                             CAUSE NO.: NO. 03-14-00632-CV
                                                                                                PAGE 5 OF 34
                         TABLE OF AUTHORITIES
                                     Cases

Acevedo v. Stiles, 2003 Tex. App. LEXIS 3854 (Tex. App.— San Antonio 2003, pet.
denied)…………………………………………………………………………..32

American Savings & Loan Assoc. v. Musick, 531 S.W.2d 581, 586 (Tex. 1976)...19

Aurora Petroleum, Inc. v. Cholla Petroleum, Inc., 2011 Tex. App. LEXIS 1382, 8-
 9 (Tex. App. – Amarillo 2011, no pet.)…………………………………………27

Austin v. Countrywide Home Loans, 261 S.W.3d 68 (Tex. App.—Houston [1st
 Dist.] 2008, pet. denied)………………………………………………………...21

Boudreau v. Fed. Trust Bank, 115 S.W.3d 740, 743 (Tex. App.—Dallas 2003, pet.
denied)……………………………………………………………………….……30

City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005)………………..….….29

Estelle v. Hart, 55 S.W.2d 510, 513 (Tex. Comm'n App. 1932, no writ)………...19

Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 617 (Tex. 2007)…………..…23

Glass v. Carpenter, 330 S.W.2d 530, 537 (Tex. Civ. App.—San Antonio 1959,
writ ref’d n.r.e.)……………………………………………………………….…..20

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007)…….. 26

Goswami v. Metropolitan Sav. & Loan Asso., 751 S.W.2d 487, 489 (Tex. 1988)..19

Heldenfels Bros. v. City of Corpus Christi, 832 S.W. 2d 39, 41 (Tex. 1992)…….27

Howell v. Murray Mortgage Co., 890 S.W.2d 78, 84 (Tex. App. Amarillo 1994,
rehearing overruled)……………………………………………………………....18

John Chezik Buick Co. v. Friendly Chevrolet Co., 749 S.W.2d 591, 594 (Tex. App.
— Dallas 1988, writ denied)………………………………………………………30

Johnson v. Hewitt, 539 S.W.2d 239, 240-241 (Tex. Civ. App. — Houston [1st Dist.]
1976, no writ)…………………………………………………………………….30

                                                               BAILEY V. MIDFIRST BANK
                                                                      APPELLANT’S BRIEF
                                                           CAUSE NO.: NO. 03-14-00632-CV
                                                                              PAGE 6 OF 34
Joseph v. City of Ranger, 188 S.W.2d 1013, 1014 (Tex. Civ. App. — Eastland 1945,
writ ref'd w.o.m.)………………………………………………………………….30

Kansas Reinsurance Co. v. Congressional Mortgage Corp., 20 F.3d 1362, 1370
 (5th Cir. Tex. 1994)…………………………………………………………….23

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003)………………..26

Leavings v. Mills, 175 S.W.3d 301 (Tex. App.— Houston [1st Dist.] 2004, no
pet.)………………………………………………………………………………..21

Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002)...30

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
 (Tex. 2009)……………………………………………………..……………17,29

Martin v. New Century Mortgage Co., 2012 Tex. App. LEXIS 4705 (Tex. App.—
Houston [1st Dist.] 2012, no pet.)………………………………….…………20, 21

MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986)…………………..……..18, 29

Mooney v. Harlin, 622 S.W.2d 83, 85 (Tex. 1981)……………………………….23

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985)………17, 29, 30

Priesmeyer v. Pacific Southwest Bank, F.S.B., 917 S.W.2d 937 (Tex.App.—Austin
  1996, no pet.)……………………………………………………………………20

Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-216
(Tex. 2003)………………………………………………………………………..17

Reinagel, et al. v. Deutsche Bank Nat’l Trust Co., No. 12-50569, 2013 U.S. App.
  LEXIS 14089 (5th Cir. (Tex.) July 11, 2013)………………………………….20

Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999)………………...30

Shepard v. Boone, 99 S.W.3d 263 (Tex. App.—Eastland 2003, no pet.)…………21

Stanley v. Citifinancial Mortg. Co., 121 S.W.3d 811, 817 (Tex. App. — Beaumont
2003)……………………………………………………………………………..25
                                                               BAILEY V. MIDFIRST BANK
                                                                      APPELLANT’S BRIEF
                                                           CAUSE NO.: NO. 03-14-00632-CV
                                                                              PAGE 7 OF 34
Tipps v. Chinn Exploration Co., 2014 Tex. App. LEXIS 10061 (Tex. App.—
Texarkana Sept. 5, 2014, pet. filed)……………………………………………...26

Tri-Cities Const., Inc. v. American Nat. Ins. Co., 523 S.W.2d 426, 430 (Tex. Civ.
  App.—Houston [1st Dist.] 1975, no writ)……………………………………..20

Vazquez v. Deutsche Bank Nat'l Trust Co., N.A., 441 S.W.3d 783, 790 (Tex.
 App.— Houston [1st Dist.] 2014, no pet. hist.)………………………………..21

Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 908 (Tex. 1982)…22

Wolf v. Highland Haven Prop. Owners Ass'n, 2013 Tex. App. LEXIS 10912 (Tex.
 App.— Austin Aug. 29, 2013, pet. denied)…………………………………….23


                                            Statutes and Rules

7 Tex. Admin Code § 65.3 (21) .............................................................................. 13
Tex. Prop. Code § 51.002 ........................................................................................25
Tex. Prop. Code § 51.002(b) ....................................................................................21
Tex. R. Civ. P. 166a .......................................................................................... 17, 26
Tex. R. Civ. P. 166a(c)……………………………………….…………...17, 29, 32
Tex R. Civ. P. 310 ....................... …………………………………………12, 17, 31

                                                      Other

Black's Law Dictionary 1444 (West 1979)……………..………………………...32




                                                                                           BAILEY V. MIDFIRST BANK
                                                                                                  APPELLANT’S BRIEF
                                                                                       CAUSE NO.: NO. 03-14-00632-CV
                                                                                                          PAGE 8 OF 34
                        STATEMENT OF THE CASE

1.01 Karl B. Bailey made ALL of his mortgage payments, but was nonetheless

      foreclosed upon. This is a void foreclosure case. Karl B. Bailey’s causes of

      action are breach of contract, void foreclosure, violation of the DTPA and

      quiet title. (CR 13-18). Plaintiff also seeks equitable estoppel and claims

      against unjust enrichment. Defendant MidFirst Bank’s counterclaims are for

      declaratory judgment and a writ of possession. (CR 19-23.)

1.02 Trial court is the 250th District Court of Travis County, the Honorable John

      K. Dietz then presiding. The ruling in the case was made by visiting judge

      the Honorable Gus Strauss.

1.03 The claims and counterclaims between Karl B. Bailey and Defendant MidFirst

      Bank were resolved on dueling summary judgment motions. (Appendix C, D.)

1.03 The trial court denied Plaintiff’s summary judgment motion and granted

      Defendant MidFirst Bank’s summary judgment motion. (Appendix A, CR 24-

      25.)

1.04 On Plaintiff’s motion, the claims and counterclaims between Plaintiff and

      Defendant MidFirst Bank were severed to render the ruling on the motions for

      summary judgment appealable. (Appendix B, CR 28).




                                                                BAILEY V. MIDFIRST BANK
                                                                       APPELLANT’S BRIEF
                                                            CAUSE NO.: NO. 03-14-00632-CV
                                                                               PAGE 9 OF 34
              RECOMMENDATION ON ORAL ARGUMENT

      Bailey suggests that the issues presented should not be determined on the

record alone and that oral argument is necessary. The issues presented have become

sufficiently muddled by misinterpretation and the law sufficiently misapplied that

oral argument would benefit the panel.



                                            /s/ Anthony G. Read
                                            Anthony G. Read




                                                                BAILEY V. MIDFIRST BANK
                                                                       APPELLANT’S BRIEF
                                                            CAUSE NO.: NO. 03-14-00632-CV
                                                                             PAGE 10 OF 34
TO THE HONORABLE THIRD DISTRICT COURT OF APPEALS:

      Appellant, Karl B. Bailey, pleads that this honorable Court of Appeals reverse

the judgment of the visiting judge in the 250th Judicial District Court and remand

this case for further proceedings.

                              ISSUES PRESENTED

2.01 Is Bailey bound and benefited by the covenants and agreements of the Deed

of Trust signed by Amy and Travis Chestnut by virtue of succession, assignment or

interest in the property? Does Bailey therefore have standing to bring claims against

MidFirst Bank?

2.02 Did the trial court err in determining Bailey did not have standing to

specifically challenge the Assignment to MidFirst Bank?

2.03 Did the trial court err in determining Karl B. Bailey was not entitled to

receive notice of the foreclosure sale under either the statutory provisions, the

Chestnut Deed of Trust, public policy or equity?

2.04 Did the trial court err in determining no genuine issue of material fact existed

regarding MidFirst Bank’s knowledge of subsequent deeds and when it occurred?

2.05 Did the trial court err in denying Karl B. Bailey’s Breach of Contract claim

by finding he did not have standing?

2.06 Did the trial court err in denying Karl B. Bailey’s Void Foreclosure Claim

when he did not receive statutory notice?

                                                                    BAILEY V. MIDFIRST BANK
                                                                           APPELLANT’S BRIEF
                                                                CAUSE NO.: NO. 03-14-00632-CV
                                                                                 PAGE 11 OF 34
2.07 Did the trial court err in denying Karl B. Bailey’s Quiet Title claim when there

were issues of material fact?

2.08 Did the trial court err in granting no-evidence summary judgment on Karl B.

Bailey’s Equitable Estoppel/Unjust Enrichment Claim?

2.09 Did the trial court err in granting no-evidence summary judgment on Karl B.

Bailey’s Breach of Contract, Void Foreclosure and Quiet Title claims?

2.10 Did the trial court err in granting MidFirst Bank declaratory judgment? Was

the declaratory judgment in violation of the applicable statute as it raised an issue

already before the trial court?

2.11 Did the trial court err in granting a writ of possession under TEX. R. CIV. P.

310 when the plain language of the Rule states TRCP 310 applies to suits seeking

foreclosure when this was not a suit seeking foreclosure?

                         STATEMENT OF THE FACTS

3.01 Karl B. Bailey (“Bailey”) purchased a homestead using creative financing

foisted upon him by Eric Lee (“Lee”) and Smoke Signal Pass, LLC (“SSP”). This




                                                                  BAILEY V. MIDFIRST BANK
                                                                         APPELLANT’S BRIEF
                                                              CAUSE NO.: NO. 03-14-00632-CV
                                                                               PAGE 12 OF 34
transaction is known as a “Wally Wrap” 1 or Wrap-around real estate loan.2 From

the time he purchased the Property until he received a surprise Demand to Vacate,

Mr. Bailey dutifully made ALL of his payments. (Appendix D)

3.02 The property in question is commonly known as 1234 Acanthus Street,

Pflugerville, Travis County, Texas 78660 (the Property) and is more particularly

described in Appendix C, Exhibit 2-A-1.

3.03    On July 15, 2004, the Property was purchased by Travis Chestnut and Amy

Chestnut (the Chestnuts), using funding from lender Alethes, LLC. The Chestnuts

executed a Deed of Trust which was recorded in the Travis County Property Records

as document 2004136582 (Chestnut Deed). (Appendix C, Exhibit 2-A-1.)

3.04 On April 22, 2009, a purported assignment of the Chestnut Deed to MidFirst

Bank (MFB) was recorded in the Travis County Property Records as document

2009079593 (MFB Assignment).                (Appendix C, Exhibit 2-A-3.) The MFB

assignment was executed by Mortgage Electronic Registration Systems, Inc.


1
  A “Wally Wrap” system was designed roughly twenty (20) years ago as a secondary financing
tool for the purchase of real property. According to WALLY TINGLEY & ASSOCIATES., P.C., “a
seller provides buyer non-qualifying interim purchase wrap financing for 1 – 5 years (balloon
period), stacking the wrap financing on seller’s prior mortgage.”
http://wallytingley.com/wallywrap/. Essentially, the seller is providing the buyer a “junior”
mortgage which “wraps” around and exists in addition to any “senior” mortgages securing the
property in question. This “junior” mortgage provides financing for a minimum of five years.
The buyer usually makes a down payment and pays off both the agreed upon financing and
seller’s existing mortgage within that five year period. This “interim” financing: is used by a
buyer to own the property in question and sell, or refinance into a mortgage loan.
2
  “Wrap-around real estate loan--A financing device whereby a junior mortgage lien secures a
liability consisting of the amount of senior debt, plus any additional funds advanced to the
borrower.” 7 TEX. ADMIN CODE § 65.3(21).
                                                                           BAILEY V. MIDFIRST BANK
                                                                                  APPELLANT’S BRIEF
                                                                       CAUSE NO.: NO. 03-14-00632-CV
                                                                                        PAGE 13 OF 34
(MERS) as “nominee” for the original lender, Alethes, LLC. The MERS assignment

claimed to assign to MFB the negotiable Promissory Note and the lien interest.

3.05 At some point, the Promissory Note was endorsed by Alethes, LLC (not

MERS) to GMAC Bank. (Appendix B, Exhibit A-2.) GMAC Bank endorsed the

Note to GMAC Mortgage Corporation which endorsed the Note to MFB.

3.06 On July 30, 2009, the Chestnuts executed a General Warranty Deed to SSP

which was recorded in the Travis County Property Records as document 200913692

(SPP Deed). (Appendix C, Exhibit A-4.)

3.07 On July 31, 2009, SPP executed a Special Warranty Deed with Vendor’s Lien

to Bailey (and his wife Rebecca) which was recorded in the Travis County Property

Records as document 2009135933 (Bailey Deed). (Appendix C, Exhibit A-4.) The

wraparound transaction meant Bailey made his payments to SPP and SPP would

ensure MFB was paid. SPP charged an amount greater than the payment to MFB

which it kept as profit.

3.08 Bailey began making the required payments to SSP and continued to do so

until he received a Demand to Vacate from MFB on February 14, 2011.

(Appendix D, Exhibit 6.)

3.09 It is uncontested MFB did not provide contractual or statutory notice to Bailey

prior to the foreclosure. (Appendix C, ¶8.) MFB sent notices to the Chestnuts.




                                                                  BAILEY V. MIDFIRST BANK
                                                                         APPELLANT’S BRIEF
                                                              CAUSE NO.: NO. 03-14-00632-CV
                                                                               PAGE 14 OF 34
3.10 On May 8, 2009, MFB filed an Appointment of Substitute Trustee in the

Travis County Property Records, dated November 5, 2010 which was recorded as

document 20101892473. (Appendix C, Exhibit 5.) This document was filed after the

SPP Deed and the Bailey Deed.

3.11 On November 15, 2010, MFB, through its purported servicer Midland

Mortgage Co. (MMC), filed a Notice of Substitute Trustee Sale as document

2010001061513 in the Travis County Property Records. (Appendix C, Exhibit B-

1.)

3.12 On January 4, 2011, MMC conducted a foreclosure sale. (Appendix C, Exhibit

B-2.)

                     SUMMARY OF THE ARGUMENT

4.01 Bailey was an innocent victim in this transaction. SPP sold him the Property

and took his payments. Bailey made each and every payment he was required to

make until he received a Demand to Vacate indicating MFB had foreclosed on the

Property. Bailey had no way of knowing SPP was keeping his payments and not

forwarding them to MFB as required. MFB, on the other hand, was charged with

knowledge of recordings in the property records and therefore knew of the SPP and

Bailey’s Deed and would have known Bailey was the entity making payments.

4.02 Bailey attempted to work with MFB to take over the Chester Deed of Trust

and resume payments. MFB would not agree to such an arrangement which would

                                                               BAILEY V. MIDFIRST BANK
                                                                      APPELLANT’S BRIEF
                                                           CAUSE NO.: NO. 03-14-00632-CV
                                                                            PAGE 15 OF 34
have ended this controversy and ensured MFB was paid all it was due.

4.03 The foreclosure was void because MFB did not have requisite authority to

conduct or to order the sale conducted. Further, MFB did not give Bailey the

statutory notice of foreclosure.

4.04 The trial court erred in granting summary judgment when genuine issues of

material fact existed as to when MFB knew of the SPP Deed and Bailey Deed. This

genuine issue of material fact is determinative of Bailey’s rights under all three

deeds. Specifically, Bailey’s rights a successor or assignee, privity with MFB or an

interest in the property and whether he was entitled to notice of default, notice of

acceleration and notice of sale.

4.05 The trial court erred in determining Bailey did not have standing to challenge

the void foreclosure and the void assignment.

4.06 The trial court erred in denying Bailey’s Void Foreclosure Claim as there exist

genuine issues of material fact as to who holds superior title to the subject property

and the impact of the execution of the wraparound.

4.07 The trial court erred in finding no evidence for Bailey’s quiet title and void

foreclosure claims.

4.07 The trial court erred in not finding equitable estoppel/unjust enrichment since

Bailey made all payments and MFB was the beneficiary of a number of those

payments.

                                                                   BAILEY V. MIDFIRST BANK
                                                                          APPELLANT’S BRIEF
                                                               CAUSE NO.: NO. 03-14-00632-CV
                                                                                PAGE 16 OF 34
4.08 The trial court erred in granting declaratory judgment for MFB since the issues

were already before the trial court in Bailey’s claims. Declaratory judgment is not

available on claims that have already been raised in the suit.

4.09 The trial court erred in granting a writ of possession under TEX. R. CIV. P.

310 in violation of the plain language of the Rule.

                      ARGUMENT AND AUTHORITIES

 I. MIDFIRST’S TRADITIONAL MOTION FOR SUMMARY JUDGMENT

                A. STANDARD OF REVIEW- TEX. R. CIV. P. 166A.

5.01 A trial court’s decision to grant summary judgment is reviewed de novo using

the standards for summary judgment set forth in Tex. R. Civ. P. 166a. Provident

Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-216 (Tex. 2003). In

reviewing a grant of summary judgment, a court of appeals must determine whether

the successful movant carried its burden of demonstrating that there is no genuine

issue of material fact and that it is entitled to judgment as a matter of law. TEX. R.

CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d

844, 848 (Tex. 2009); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.

1985). In making this decision, a court of appeals takes all evidence favorable to the

non-movant as true, and make every reasonable inference in favor of the non-

movant, resolving all doubts in his or her favor. Provident Life & Accident Ins. Co.,

128 S.W.3d at 215. Where defendant-movant seeks summary judgment on an

                                                                     BAILEY V. MIDFIRST BANK
                                                                            APPELLANT’S BRIEF
                                                                 CAUSE NO.: NO. 03-14-00632-CV
                                                                                  PAGE 17 OF 34
affirmative defense, it must prove conclusively all elements of that defense. MMP,

Ltd. v. Hones, 710 S.W.2d 59, 60 (Tex. 1986).

        B. THE TRIAL COURT’S JUDGMENT IS IN ERROR BECAUSE BAILEY HAS
        STANDING TO BRING HIS CLAIMS AS SUCCESSOR, ASSIGNEE BOUND AND
                      BENEFITED BY THE DEED OF TRUST OR
                  A PERSON WITH AN INTEREST IN THE PROPERTY.



6.01 Section 12 of the Chestnut Deed states: “The covenants and agreements of

this Security Agreement shall bind and benefit the successors and assigns of Lender

and Borrower, subject to the provisions of Paragraph 9(b).” 3 (Appendix C, Exhibit

A.)

6.02 This is analogous to Bank A loaning money for a house to Homeowner B

under a Deed of Trust. Homeowner B then sells the house to Homeowner C. When

B or C defaults, C is bound and benefited as a successor or assign under Section 12

of the Deed of Trust in that Bank A has the right to foreclose and take the Property

from Homeowner C despite no direct contract. This is so because Homeowner C is

bound and benefited by the Deed of Trust as a successor or assign. See, Howell v.

Murray Mortgage Co., 890 S.W.2d 78, 84 (Tex. App. Amarillo 1994, rehearing

overruled) (stating “when the term successor is used in common parlance it means

anyone who follows. However, when used as a legal term applying to . . . natural

persons, [it] is [an] apt and appropriate term to designate one to whom property


3
    Paragraph 9(b) is the “due on sale clause” which was not invoked.
                                                                            BAILEY V. MIDFIRST BANK
                                                                                   APPELLANT’S BRIEF
                                                                        CAUSE NO.: NO. 03-14-00632-CV
                                                                                         PAGE 18 OF 34
descends or [the] estate of decedent.” and finding the person to whom the property

descended was a successor bound by the terms of the Deed of Trust).

6.03 Bailey is also a successor or assign to the Chestnut Deed because it gives MFB

the right to foreclose on property owned by Bailey.

6.04 Alternatively, Bailey has standing to challenge the foreclosure as an interested

party.

6.05 Appellee cites Goswami v. Metropolitan Sav. & Loan Asso., 751 S.W.2d 487,

489 (Tex. 1988) for the proposition that “as a general rule, only the mortgagor or a

party who is in privity with the mortgagor has standing to contest the validity of a

foreclosure sale pursuant to the mortgagor's deed of trust.”

6.06 Even if Bailey is not a successor or assignee of the Chestnut Deed, Goswami,

in the same paragraph cited above, points out that “when the third party has a

property interest, whether legal or equitable, that will be affected by such a sale, the

third party has standing to challenge such a sale to the extent that its rights will be

affected by the sale.” citing American Savings & Loan Assoc. v. Musick, 531 S.W.2d

581, 586 (Tex. 1976); Estelle v. Hart, 55 S.W.2d 510, 513 (Tex. Comm'n App. 1932,

no writ). Goswami 751 S.W.2d at 489.

6.07 Bailey had both legal and equitable interest in the Property. He had a Deed

and was faithfully making monthly payments. The void sale of the Property by MFB

affected Bailey’s rights. Therefore, alternatively, Bailey has standing to challenge

                                                                     BAILEY V. MIDFIRST BANK
                                                                            APPELLANT’S BRIEF
                                                                 CAUSE NO.: NO. 03-14-00632-CV
                                                                                  PAGE 19 OF 34
the foreclosure since he has a property interest.

6.08 Bailey had no opportunity to challenge the foreclosure sale because he was

not aware of any default. He was an innocent party and was making his payments

as required by his agreement with SPP. SPP was charged with getting the payments

to MFB.

   C. BAILEY HAS STANDING TO CHALLENGE THE ASSIGNMENT TO MIDFIRST
                                BANK.

7.01    As discussed supra, Bailey has standing with regard to the Chester Deed as

a successor or assign or, alternatively, as a party with an interest in the property.

7.02    Texas law follows the common law rule where a debtor may bring any

ground against an assignee to challenge an assignment as void or invalid. See Tri-

Cities Const., Inc. v. American Nat. Ins. Co., 523 S.W.2d 426, 430 (Tex. Civ. App.—

Houston [1st Dist.] 1975, no writ); Glass v. Carpenter, 330 S.W.2d 530, 537 (Tex.

Civ. App.—San Antonio 1959, writ ref’d n.r.e.). This was recently acknowledged

by the Federal 5th Circuit, and is the majority rule followed in Texas. See, Reinagel,

et al. v. Deutsche Bank Nat’l Trust Co., No. 12-50569, 2013 U.S. App. LEXIS 14089

(5th Cir. (Tex.) July 11, 2013) (reversing district court, Hon. Sam Sparks, on this

point of law).

7.03    Texas Courts also permit challenging the chain of assignments regarding the

right of a party to foreclose. See, Priesmeyer v. Pacific Southwest Bank, F.S.B., 917

S.W.2d 937 (Tex.App.—Austin 1996, no pet.); see, also, Martin v. New Century
                                                                     BAILEY V. MIDFIRST BANK
                                                                            APPELLANT’S BRIEF
                                                                 CAUSE NO.: NO. 03-14-00632-CV
                                                                                  PAGE 20 OF 34
Mortgage Co., 2012 Tex. App. LEXIS 4705 (Tex. App.—Houston [1st Dist.] 2012,

no pet.); Austin v. Countrywide Home Loans, 261 S.W.3d 68 (Tex. App.—Houston

[1st Dist.] 2008, pet. denied); Leavings v. Mills, 175 S.W.3d 301 (Tex. App.—

Houston [1st Dist.] 2004, no pet.); Shepard v. Boone, 99 S.W.3d 263 (Tex. App.—

Eastland 2003, no pet.).

7.04    The right to challenge an assignment was very recently upheld in Vazquez v.

Deutsche Bank Nat'l Trust Co., N.A., 441 S.W.3d 783, 790 (Tex. App.— Houston

[1st Dist.] 2014, no pet. hist.). Bailey, like Vasquez, alleges the assignment to MFB

was void and therefore the trial court should not have granted summary judgment

that he lacked standing.


       D. THE TRIAL COURT’S JUDGMENT IS IN ERROR BECAUSE BAILEY WAS
           ENTITLED TO NOTICE OF THE FORECLOSURE SALE BY STATUTE


8.01    As discussed supra, Bailey is bound and benefited by the Chestnut Deed as

a successor or assign. Consequently, Bailey was entitled to the benefit of the

Chestnut Deed, section 18.

8.02    The Chestnut Deed, section 18, requires Lender to “mail a copy of the notice

of sale to Borrower in the manner prescribed by applicable law.” Applicable law,

TEX. PROP. CODE 51.002(b) requires the notice be sent by certified mail.




                                                                  BAILEY V. MIDFIRST BANK
                                                                         APPELLANT’S BRIEF
                                                              CAUSE NO.: NO. 03-14-00632-CV
                                                                               PAGE 21 OF 34
8.03     It is undisputed no such notice was sent to Bailey. (Appendix C, Exhibit ¶8.)

8.04     Bailey was also entitled to notice of the sale as a matter of public policy and

equity. MFB was either aware or charged with awareness of the Bailey Deed and

knew Bailey had an interest in the property. The public policy reason for notice

under the statutes and case law (and Deed of Trust) is to allow property owners to

cure defaults and prevent foreclosure. Allowing Mortagees to deny property owners

notification prevents property owners from taking any action to prevent foreclosure.

This contravenes the public policy of reducing foreclosures and ensuring that

contracts are voluntarily and knowingly complied with, rather than breached and not

cured.

8.05     Equity also dictates Bailey receive advance notice of the foreclosure. MFB

benefited from Bailey’s payments. Bailey has an interest in the property. Allowing

MFB to retain Bailey’s payments and gain any equity in the property unjustly

enriches MFB and the expense of an innocent party – Bailey.

E. THE TRIAL COURT’S JUDGMENT IS IN ERROR BECAUSE THERE ARE GENUINE
 ISSUES OF MATERIAL FACT AS TO WHEN MIDFIRST BANK KNEW OF THE SPP
                      DEED AND THE BAILEY DEED.

9.03 MFB is charged by Texas Law with knowledge of the contents of the property

records regarding its property. Westland Oil Dev. Corp. v. Gulf Oil Corp., 637

S.W.2d 903, 908 (Tex. 1982) (“it is well settled that ‘a purchaser is bound by every

recital, reference and reservation contained in or fairly disclosed by any instrument


                                                                     BAILEY V. MIDFIRST BANK
                                                                            APPELLANT’S BRIEF
                                                                 CAUSE NO.: NO. 03-14-00632-CV
                                                                                  PAGE 22 OF 34
which forms an essential link in the chain of title under which he claims.’") (internal

cites omitted).4 Mooney v. Harlin, 622 S.W.2d 83, 85 (Tex. 1981) (“Constructive

notice in law creates an irrebuttable presumption of actual notice.).

9.04 It can be argued property owners are not bound to periodically search the

property records to ensure nothing unexpected is filed.5 However, since MFB filed

an appointment of substitute trustee on December 7, 2010, they would be charged

with knowledge of the SPP Deed and Bailey Deed since both were on file since 2009

which was prior to the December 7, 2010 filing date of the appointment of substitute

trustee. Further, MFB had a duty to determine whether other liens existed on the

property including tax and mechanics liens.

9.05 MFB is charged with knowledge of the SPP Deed and Bailey Deed from

December 7, 2010. This means MFB was aware Bailey had an interest in the

property and was required to be notified of default, acceleration and sale. The

affidavit of MFB’s First Vice President, Thad Burr, indicated the SPP Deed and

Bailey Deed were unknown to MFB when filed. He did not address the genuine



4
  See also: Wolf v. Highland Haven Prop. Owners Ass'n, 2013 Tex. App. LEXIS 10912 (Tex.
App.— Austin Aug. 29, 2013, pet. denied) “…we note that appellants are charged with
constructive notice of the actual knowledge of the Subject Property's ownership they could have
acquired by examining the Burnet County public records.” See Ford v. Exxon Mobil Chem. Co.,
235 S.W.3d 615, 617 (Tex. 2007) (per curiam) (‘While not all public records establish an
irrebuttable presumption of notice, the recorded instruments in a grantee's chain of title generally
do.’).have been acquired by examining public records.’)”.
5
  Kansas Reinsurance Co. v. Congressional Mortgage Corp., 20 F.3d 1362, 1370 (5th Cir. Tex.
1994)
                                                                              BAILEY V. MIDFIRST BANK
                                                                                     APPELLANT’S BRIEF
                                                                          CAUSE NO.: NO. 03-14-00632-CV
                                                                                           PAGE 23 OF 34
material issue of fact as to when MFB found out about the deeds.

        F. BAILEY HAS A CAUSE OF ACTION FOR BREACH OF CONTRACT.

10.01   As discussed supra, Bailey is a successor to the Chestnut Deed of Trust.

10.02 The Chestnut deed is a valid contract, Bailey tendered every payment

required of him until after foreclosure. (Appendix D, Exhibits 6 and 7, Affidavit

and Proof of Payments.) MidFirst breached the contract by not providing notice to

Bailey as admitted in paragraph 23 of MFB’s Amended MSJ. Bailey pled damages

of having a void foreclosure executed on his home. The lack of notice was a

violation of Section 18 of the Chester Deed.

   G. BAILEY’S CLAIM FOR VOID FORECLOSURE IS SUPPORTED BY EVIDENCE.

11.01 The MFB assignment of the Note and Deed of Trust was void. (Appendix C,

Exhibit A-3.) The document purports to transfer both the Note and Deed of Trust

from Alethes, LLC via MERS as nominee to MFB. The assignment was executed

April 22, 2009. A conflict exists with the MFB assignment and the endorsements

on the Note.

11.02 The Note is endorsed by Alethes, LLC to GMAC Bank. (Appendix C, Exhibit

A-2.) One of two possible sequences of events render the MFB assignment and/or

Note endorsements invalid. If Alethes, LLC endorsed the Note to GMAC Bank

before the MFB assignment, MFB did not receive the Note as stated in the MFB

assignment as Alethes, LLC had endorsed it and no longer held it. Alternatively, if

                                                                 BAILEY V. MIDFIRST BANK
                                                                        APPELLANT’S BRIEF
                                                             CAUSE NO.: NO. 03-14-00632-CV
                                                                              PAGE 24 OF 34
the MFB assignment occurred before the endorsement, the Alethes, LLC

endorsement to GMAC Bank was void because Alethes, LLC no longer held the

note.

11.03 Regardless, a material issue of fact exists as to whether the MFB assignment

is valid. This creates a material issue of fact as to whether MFB had authority to

direct the foreclosure as it did not own the Note.

11.04 Even if the MFB sale was not void for the reasons above, genuine issues of

material fact exist as to whether Bailey was entitled to notice under TEX. PROP. CODE

51.002. Bailey was a party to the Chestnut Deed through the Bailey and SSP Deeds.

Bailey was a person MFB knew or should have known was obligated to pay the debt.

This would have been in MFB’s records based on their knowledge of the property

records. Some cases indicate someone not a party to the Deed of Trust are not

entitled to notice.6 In the instant case, a genuine issue of material fact exists as to

whether Bailey was a successor or assign to the Chester Deed.

          H. BAILEY’S QUIET TITLE CLAIM RAISES MATERIAL FACT ISSUES.

11.04 MFB first states Bailey’s Quiet Title claim fails and then discusses the

elements of a Trespass to Try Title Claim. (Appendix C, Exhibit ¶¶ 52-53.)

11.05 The elements of a Quiet Title Claim are: (1) an interest in a specific property,

(2) title to the property is affected by a claim by the defendant, and (3) the claim,


6   Stanley v. Citifinancial Mortg. Co., 121 S.W.3d 811, 817 (Tex. App. — Beaumont 2003).
                                                                          BAILEY V. MIDFIRST BANK
                                                                                 APPELLANT’S BRIEF
                                                                      CAUSE NO.: NO. 03-14-00632-CV
                                                                                       PAGE 25 OF 34
although facially valid, is invalid or unenforceable. Tipps v. Chinn Exploration Co.,

2014 Tex. App. LEXIS 10061 (Tex. App.— Texarkana Sept. 5, 2014, pet. filed).

11.06 Issues of material fact have been raised by Bailey on this claim. The Bailey

Deed shows an interest in a specific property, the Substitute Trustee’s Deed shows

a claim by MFB. (Appendix C, Exhibit B-2.)The void foreclosure, discussed supra,

demonstrates the claim, although facially valid, is invalid or unenforceable.

      II. MidFirst Bank’s No-Evidence Motion for Summary Judgment

                A. STANDARD OF REVIEW- TEX. R. CIV. P. 166a.


12.01 When a party moves for summary judgment on a no-evidence ground, the

court reviews the claim under the same legal sufficiency standard as directed

verdicts. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003). Under

that standard, evidence is considered in the light most favorable to the non-movant.

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007). The non-

movant is “not required to marshal [his] proof; [his] response need only point out

evidence that raises a fact issue on the challenged elements.” TEX. R. CIV. P. 166a.

A no-evidence summary judgment is improperly granted if the party responding

brings forth more than a scintilla of probative evidence to raise a genuine issue of

material fact. King Ranch, Inc. v. Chapman, 118 S.W.3d at 751.




                                                                   BAILEY V. MIDFIRST BANK
                                                                          APPELLANT’S BRIEF
                                                               CAUSE NO.: NO. 03-14-00632-CV
                                                                                PAGE 26 OF 34
          B. Bailey is Entitled to Equitable Estoppel/Unjust Enrichment

13.01 It must be remembered in the instant case Bailey was an innocent party in this

transaction. He paid each and every payment he was required to pay to SPP per the

Bailey Deed. The void foreclosure occurred without his knowledge. Once it did

occur, he attempted to resume payments with MFB. MFB declined to accept the

money.

13.02 When MFB became aware of the wraparound through the property records, it

also became aware it had been taking payments which originated from Bailey.

13.03 MFB cites Heldenfels Bros. v. City of Corpus Christi, 832 S.W. 2d 39, 41

(Tex. 1992) for the proposition that unjust enrichment must entail a benefit obtained

by fraud, duress or taking of undue advantage. Actually, the case says a party may

recover under these circumstances.7 Heldenfels Bros. does not say these conditions

must occur. Other case law provides unjust enrichment in other circumstances. See,

e.g., Aurora Petroleum, Inc. v. Cholla Petroleum, Inc., 2011 Tex. App. LEXIS 1382,

8-9 (Tex. App. – Amarillo 2011, no pet.). 8


7
  “A party may recover under the unjust enrichment theory when one person has obtained a
benefit from another by fraud, duress, or the taking of an undue advantage.” Heldenfels Bros.,
Inc. v. Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992) (emphasis added).
8
  “Unjust enrichment is an equitable principle that is the result of a failure to make restitution of
benefits wrongfully or passively received under circumstances that give rise to an implied or
quasi-contractual obligation to repay… While it often applies when one person has obtained a
benefit from another by fraud, duress, or by taking an undue advantage… it is also available if a
contract is unenforceable, impossible, not fully performed, or void for other legal reasons …
Indeed, fraud is not a requisite component for a finding of unjust enrichment.” (internal cites
omitted).
                                                                               BAILEY V. MIDFIRST BANK
                                                                                      APPELLANT’S BRIEF
                                                                           CAUSE NO.: NO. 03-14-00632-CV
                                                                                            PAGE 27 OF 34
13.04 Bailey was current on his payments up until MFB’s void foreclosure.

(Appendix C, Exhibit 6 and 7.) MFB was aware at some point before the foreclosure

that Bailey was making the payments. Either when the source of the checks changed

from the Chestnuts to SPP or when MFB checked the property records in preparation

for foreclosure or when filing the assignment of substitute trustee. MFB continued

to foreclose knowing Bailey had made all payments. MFB was unjustly enriched by

the payments made by Bailey.

13.05 MFB is further estopped from asserting the foreclosure is valid in that MFB

knowingly received payments from Bailey, yet continued to foreclose on his

property.

   C. Bailey Provided More Than a Scintilla of Proof to Support Breach of
             Contract, Void Foreclosure and Quiet Title Claims.

14.01 As discussed supra, Bailey is a successor, assign or, alternatively, a party with

an interest to the Chestnut Deed of Trust. This demonstrates a valid, enforceable

contract exists with MFB. Consequently, more than a scintilla of evidence has been

provided establishing the contested element: existence of a valid, enforceable

contract.

14.02 Bailey has not pled wrongful foreclosure. Instead, Bailey pled the foreclosure

was void, ab initio and has provided more than a scintilla of evidence the Note and

Deed of Trust were not properly transferred to MFB and Bailey did not receive

notice of the sale to which he was entitled.
                                                                    BAILEY V. MIDFIRST BANK
                                                                           APPELLANT’S BRIEF
                                                                CAUSE NO.: NO. 03-14-00632-CV
                                                                                 PAGE 28 OF 34
14.03 MFB did not have standing to initiate or direct its servicer to initiate

foreclosure proceedings against Bailey as it was neither the owner nor holder of any

indebtedness secured by Bailey’s homestead.

14.04 MFB continues to address Bailey’s quiet title claim with the elements of a

trespass to try title claim. As discussed supra, Bailey has more than a scintilla of

evidence to support his quiet title claim.

III. MIDFIRST BANK’S MOTION FOR SUMMARY JUDGMENT ON ITS
                      COUNTERCLAIMS

                A. STANDARD OF REVIEW- TEX. R. CIV. P. 166a.


15.01 To succeed on a traditional motion for summary judgment on its

counterclaim, the defendant must show that there is no genuine issue of material fact

and that it is entitled to summary judgment as a matter of law. Tex. R. Civ. P.

166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,

848 (Tex. 2009); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).

To meet this burden, the defendant must conclusively prove all essential elements of

its claim. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). A matter is

conclusively established if reasonable people could not differ on the conclusion to

be drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.

2005). If the defendant establishes its right to summary judgment as a matter of law,

the burden shifts to the plaintiff to present evidence that raises a genuine issue of

                                                                  BAILEY V. MIDFIRST BANK
                                                                         APPELLANT’S BRIEF
                                                              CAUSE NO.: NO. 03-14-00632-CV
                                                                               PAGE 29 OF 34
material fact. Boudreau v. Fed. Trust Bank, 115 S.W.3d 740, 743 (Tex. App.—

Dallas 2003, pet. denied). In deciding whether to grant defendant’s motion, the court

must take as true all competent evidence favorable to the plaintiff and indulge every

reasonable inference and resolve any doubts in the plaintiff’s favor. Limestone

Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002); Rhône-

Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Nixon, 690 S.W.2d at 548-

49.

      B. MidFirst Bank’s Request for Declaratory Judgment is Improper

16.01 MFB moved for summary judgment on its counterclaim for Declaratory

Judgment, arguing that its motion had proven it had standing to foreclose. Because

Bailey has not brought an action under the Act, Movant is not permitted to bring

counterclaims under the Act. The Declaratory Judgment Act is not available to settle

disputes already pending before a court. Johnson v. Hewitt, 539 S.W.2d 239, 240-

241 (Tex. Civ. App. — Houston [1st Dist.] 1976, no writ); Joseph v. City of Ranger,

188 S.W.2d 1013, 1014 (Tex. Civ. App. — Eastland 1945, writ ref'd w.o.m.). John

Chezik Buick Co. v. Friendly Chevrolet Co., 749 S.W.2d 591, 594 (Tex. App. —

Dallas 1988, writ denied).

16.02 MFB’s Declaratory Judgment counterclaim is duplicative of Bailey’s Quiet

Title claim and therefore a dispute already before the Court and should be denied.




                                                                  BAILEY V. MIDFIRST BANK
                                                                         APPELLANT’S BRIEF
                                                              CAUSE NO.: NO. 03-14-00632-CV
                                                                               PAGE 30 OF 34
16.03 Further, MFB has not proven that its foreclosure was valid as discussed

supra. The SPP Deed and Bailey Deed negated MFB’s right to foreclose or at least

its right to foreclose without notifying Bailey.

       C. This Suit Does Not Support a Writ of Possession Counterclaim

16.04 The trial court, ignoring the plain language of TEX. R. CIV. P. 310, granted

MFB a writ of possession. The rule’s plain language specifies an order foreclosing

in a suit having for its object foreclosure:

             When an order foreclosing a lien upon real estate is made
             in a suit having for its object the foreclosure of such lien,
             such order shall have all the force and effect of a writ of
             possession as between the parties to the foreclosure suit
             and any person claiming under the defendant to such suit
             by any right acquired pending such suit; and the court shall
             so direct in the judgment providing for the issuance of
             such order. The sheriff or other officer executing such
             order of sale shall proceed by virtue of such order of sale
             to place the purchaser of the property sold thereunder in
             possession thereof within thirty days after the day of sale.
16.05 This suit concerned a lien already foreclosed (precluding an order

foreclosing a lien). The suit did not have as its object the foreclosure of the lien

(which had already been done). No one could execute an order of sale because the

property had been sold. Finally, the property could not have been sold under the trial

court’s order as it had already been sold.

16.06 Shepardizing Rule 310 reveals the majority of citing cases were decided pre-

1939. Of the more recent cases (2003 and 1982), one is not applicable. The 2003


                                                                    BAILEY V. MIDFIRST BANK
                                                                           APPELLANT’S BRIEF
                                                                CAUSE NO.: NO. 03-14-00632-CV
                                                                                 PAGE 31 OF 34
case, from the San Antonio Fourth Court of Appeals ignores the plain language of

the Rule and finds a writ proper even though the purpose of the suit was not

foreclosure (which had occurred previously or the party was not informed). 9

16.07 It appears only one case since 1939 has interpreted this Rule and has ignored

its plain language. No Texas court has cited the San Antonio decision for this

proposition. Since it is a single opinion not binding on this Court, Bailey requests

this Court apply the plain language of the Rule and find the issuance of a writ not

appropriate when the foreclosure has already taken place and was not part of the

instant suit.



     IV. BAILEY’S MOTION FOR SUMMARY JUDGMENT MIDFIRST
                    BANK’S COUNTERCLAIMS

17.01 Section III above discusses MFB’s counterclaims.

17.02 MFB did not satisfy its burden under Tex. R. Civ. P. 166a(c).

17.03 MFB’s counterclaim for Declaratory Judgment is not permitted as the issue

is already before the court.

17.04 This suit does not support a writ of possession counterclaim.


9
  “We again disagree. A writ of possession is nothing more than a ‘writ of execution employed to
enforce a judgment to recover the possession of land. It commands the sheriff to enter the land and
give possession of it to the person entitled under the judgment.’ BLACK'S LAW DICTIONARY
1444 (West 1979). The writ was appropriate in this case because the Acevedos failed to supersede
the trial court's judgment awarding Stiles' home to her.” Acevedo v. Stiles, 2003 Tex. App. LEXIS
3854 (Tex. App.— San Antonio 2003, pet. denied)

                                                                             BAILEY V. MIDFIRST BANK
                                                                                    APPELLANT’S BRIEF
                                                                         CAUSE NO.: NO. 03-14-00632-CV
                                                                                          PAGE 32 OF 34
                                      PRAYER

       Karl B. Bailey respectfully requests that the Court reverse the judgment of

the District Court in all things for further action consistent with its opinion.

                                         Respectfully submitted,

                                         By:_________________________________
                                             /s/ Anthony G. Read
                                         ANTHONY G. READ, SBN: 24056184
                                         WILLIAM B. GAMMON, SBN: 07611280
                                         GAMMON LAW OFFICE, PLLC.
                                         1201 Spyglass Drive, Suite 100
                                         Austin, Texas 78746
                                         Phone: 512-444-4529
                                         Fax: 512-545-4279
                                         Firm@GammonLawOffice.com
                                         COUNSEL FOR APPELLANT


                       CERTIFICATE OF COMPLIANCE
       Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), as amended
effective January 1, 2015, the undersigned certifies that this Brief complies with
the length limitations of Rule 9.4(i) and the typeface requirements of Rule 9.4(e).

      1.     Exclusive of the contents excluded by Rule 9.4(i)(1), this Brief
             contains 5120 words as counted by the Word Count function
             (including textboxes, footnotes, and endnotes) of Microsoft Office
             Word 2013.

      2.     This Brief has been prepared in proportionally spaced typeface using:

             Software name and Version: Microsoft Office Word 2013
             Typeface Name; Times New Roman
             Font Size: 14 point

                                               /s/ Anthony G. Read
                                               _____________________________
                                               Anthony G. Read


                                                                     BAILEY V. MIDFIRST BANK
                                                                            APPELLANT’S BRIEF
                                                                 CAUSE NO.: NO. 03-14-00632-CV
                                                                                  PAGE 33 OF 34
                       CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of Appellant’s Brief, with
Appendix, was served by ProDoc e-service or facsimile on this the 12th day of
January, 2015, to:

Chris Pochyla, SBN: 24032842
Counsel for MidFirst Bank
Barrett Daffin Frappier Turner & Engel, LLP
15000 Surveyor Blvd., Ste. 100
Addison TX 75001
Tel: (972) 340-7935
Fax: (972) 341-0734



                                          /s/ Anthony G. Read
                                          _____________________________
                                          Anthony G. Read




                                                             BAILEY V. MIDFIRST BANK
                                                                    APPELLANT’S BRIEF
                                                         CAUSE NO.: NO. 03-14-00632-CV
                                                                          PAGE 34 OF 34
                            No. 03-14-00632-CV


                          In The Court of Appeals
                   For the Third District Court of Appeals
                                Austin, Texas

                            KARL B. BAILEY
                               Appellant,

                                     v.

                            MIDFIRST BANK
                               Appellees.




                 APPENDIX TO APPELLANT’S BRIEF

A.   Order on Defendant Midfirst Bank’s First Amended Motion for
     Summary Judgment

B.   Order on Plaintiff’s Motion to Sever

C.   Defendant MidFirst Bank’s First Amended Motion for Summary
     Judgment

D.   Plaintiff’s Response to Defendant’s Traditional and No-Evidence Motion
     for Summary Judgment and Plaintiff’s Motion for Summary Judgment

E.   7 TEX. ADMIN CODE § 65.3 (21)

F.   TEX. R. CIV. P. 310

G.   TEX. PROP. CODE 51.002(b)

H.   TEX. R. CIV. P. 166a
APPENDIX
 TAB A
APPENDIX
 TAB B
APPENDIX
 TAB C
APPENDIX
 TAB D
                                                                       6/25/2014 5:46:30 PM
                                                                             Amalia Rodriguez-Mendoza
                                                                                           District Clerk
                                                                                           Travis County
                                                                                        D-1-GN-11-000558
                              CAUSE NO. D-1-GN-11-000558

KARL B. BAILEY, JR.                             §       IN THE DISTRICT COURT
                                                §
          Plaintiff                             §
v                                               §
                                                §       250th JUDICIAL DISTRICT
                                                §
MIDFIRST BANK; SMOKE SIGNAL                     §
PASS, LLC; ERIC J. LEE; KW                      §
MANAGEMENT, LLC, d/b/a Keller                   §
Williams                                        §
                                                §
          Defendants                            §       TRAVIS COUNTY, TEXAS


                   PLAINTIFF’S RESPONSE TO
 DEFENDANT’S TRADITIONAL & NO-EVIDENCE MOTION FOR SUMMARY
   JUDGMENT AND PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Plaintiff, Karl B. Bailey, Jr., asks the Court to deny defendant MidFirst Bank’s motions

         for summary judgment and to grant Plaintiff’s motion for summary judgment

         against defendant MidFirst Bank.

                                      INTRODUCTION

    1.      Plaintiff, Karl B. Bailey (Bailey), sued defendant, MidFirst Bank (MidFirst), for

          breach of contract, violations of the Texas DTPA, void foreclosure, equitable

          estoppel/unjust enrichment and quiet title.

    2.      MidFirst answered asserting counter claims for declaratory judgment and a writ

          of possession. MidFirst’s chief claim is that Bailey was not a party to the Deed of

          Trust, MidFirst was not aware the property in question had been deeded to Bailey

          and therefore Bailey has no standing to bring these claims and was not entitled to

          notice prior to foreclosure and MidFirst was entitled to keep payments Bailey

          made on the note.

KARL B. BAILEY, JR. V. MIDFIRST BANK ET AL
ANSWER AMENDED MOTION FOR SUMMARY JUDGMENT                                     PAGE 1 OF 14
                                        BACKGROUND

   3. The property in question is described in Exhibit 1 and is more commonly known

        as 1234 Acanthus Street, Pflugerville, Texas 78660 (“the property”).

   4. The property was initially purchased by Travis and Amy Chestnut through a Note

        and Deed of Trust on or about July 15, 2004. The lender was Alethes, LLC. On

        or about April 17, 2009, MidFirst allegedly obtained, by assignment and

        endorsement, the Note and Deed of Trust on the property.

   5. On or about July 30, 2009, the Chestnut’s transferred the property to Smoke

        Signal Pass, LLC (SPP) under a General Warranty Deed.

   6. SPP then transferred the property to Bailey on or about July 31, 2009 under a

        Special Warranty Deed with Vendor’s Lien. Bailey began making payments in

        September, 2009 and continued to make all payments until he was informed

        MidFirst had foreclosed on the property by receipt of a three day notice to vacate.

                        SUMMARY-JUDGMENT EVIDENCE

   7.    To support the facts in this response, plaintiff offers the following summary-

        judgment evidence attached to this response and incorporates the evidence into

        this response by reference.

               Exhibit 1: Deed of Trust dated July 15, 2004 and recorded in the
               Travis County Property Records as Document 2004136582.
               (Chestnut Deed).

               Exhibit 2: Assignment of Deed of Trust, dated April 22, 2009 and
               recorded in the Travis County Property Records as Document
               2009079539. (MidFirst Assignment)

               Exhibit 3: General Warranty Deed, dated July 30, 2009 and
               recorded in the Travis County Property Records as Document
               200913692. (SPP Deed).


KARL B. BAILEY, JR. V. MIDFIRST BANK ET AL
ANSWER AMENDED MOTION FOR SUMMARY JUDGMENT                                     PAGE 2 OF 14
               Exhibit 4: Special Warranty Deed with Vendor’s Lien dated July
               31, 2009 and recorded in the Travis County Property Records as
               Document 2009135933. (Bailey Deed)

               Exhibit 5:   Appointment of Substitute Trustee dated November
               5, 2010 and recorded in the Travis County Property Records as
               Document 2010182473.

               Exhibit 6:     Affidavit of Karl Bailey

               Exhibit 7:    Checks and bank statement showing Bailey
               payments to SPP.

               Exhibit 8:    Substitute Trustee’s Deed dated January 4, 2011
               and recorded in the Travis County Property Records as Document
               2011006182.


          RESPONSE TO TRADITIONAL SUMMARY JUDGMENT ON
        PLAINTIFF’S CAUSES OF ACTION DUE TO LACK OF STANDING


A. Defendant did not disprove plaintiff’s causes of action as a matter of law.

   8.     A defendant is entitled to summary judgment on a plaintiff’s cause of action if
        the defendant can disprove at least one element of the cause of action as a matter
        of law. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); see Tello
        v. Bank One, N.A., 218 S.W.3d 109, 113 (Tex. App.—Houston [14th Dist.] 2007,
        no pet.).

   9.     The Court should deny defendant’s motion for summary judgment on plaintiff’s
        cause of action because defendant did not disprove Bailey’s claims as a matter of
        law.

   10. The Court should deny defendant’s motion for summary judgment on plaintiff’s
      cause of action because the Affidavits and property records attached to
      defendant’s motion are defective and do not present competent summary-
      judgment evidence. Specifically, see Bailey’s Motion to Strike MidFirst Bank’s
      Summary Judgment Evidence.


              A. MidFirst did not prove Bailey lacks standing as a matter of law

   11. MidFirst’s chief argument is that Bailey does not have standing to sue on breach

        of the Deed of Trust because he is not a party to the Deed of Trust. Further,

KARL B. BAILEY, JR. V. MIDFIRST BANK ET AL
ANSWER AMENDED MOTION FOR SUMMARY JUDGMENT                                  PAGE 3 OF 14
       MidFirst asserts Bailey is not entitled to the notices required by law and by the

       Deed of Trust because he was not a party to the contract and not obligated to pay

       the debt.

    12. The Court should deny MidFirst’s motion for summary judgment on the issue of

       Bailey’s standing because MidFirst did not prove lack of standing as a matter of

       law. Bailey does have standing as a matter of law based on the Chain of Title

       proven by Exhibits 1 through 4.

    13. Bailey’s standing is further evidenced by the Chestnut deed, Section 12, which

       states: “[t]he covenants and agreements of this Security Instrument shall bind and

       benefit the successors and assigns of Lender and Borrower, subject to the

       provisions of Paragraph 9(b).” 1

    14. Since Bailey was an assignee and/or successor of Borrower (the Chestnuts), the

       covenants and agreements of the Security Instrument benefit him. MidFirst was

       required to provide the contractual notices in the Deed of Trust to Bailey. This

       clause also makes Bailey a party to the contract. A party to a contract can always

       sue under the contract.

    15. Both the SPP Deed and the Bailey Deed were properly recorded in the Travis

       County Property Records. This gives rise to an irrebutable presumption MidFirst

       had notice of these instruments. 2



1
  Paragraph 9(b) is the “due on sale” clause that gives the Lender the right to accelerate
the debt if the original borrower sells their interest without the Lender’s permission.
2
  Noble Mortg. & Invs. LLC v. D&M Vision Invs., LLC, 340 S.W.3d 65 (Tex. App.
Houston [1st Dist.] 2011, no pet.) “The Texas Property Code provides that an "instrument
that is properly recorded in the proper county is . . . notice to all persons of the existence
of the instrument." Tex. Prop. Code Ann. § 13.002. Recorded instruments in a grantee's

KARL B. BAILEY, JR. V. MIDFIRST BANK ET AL
ANSWER AMENDED MOTION FOR SUMMARY JUDGMENT                                     PAGE 4 OF 14
   16. Some courts have said instruments recorded after the property was purchased do

       not automatically provide notice to the purchaser. See Andretta v. West, 415

       S.W.2d 638, 642 (Tex. 1967). However, in the instant case, MidFirst had reason

       to investigate when payment origination changed from the Chestnuts to SPP.

       This should have led them to inquire regarding what had been filed to lead SPP to

       make payments. 3     Additionally, MidFirst recorded documents in the Travis

       County Property Records after the SPP Deed and the Bailey Deed were recorded.

       For example, Exhibit 5 was recorded in November 2010 showing MidFirst or one

       of its agents was actively accessing the property records. At that point, MidFirst

       would have had notice of the SPP Deed and the Bailey Deed.

   17. MidFirst has produced no admissible evidence to prove they were not aware of

       these deeds. At best, an incompetent interested witness affidavit claims only that

       MidFirst was not aware of the Deeds on or about the time they were executed.

       The Thad Burr affidavit (Exhibit A to MidFirst’s motion) did not address the

       question of when MidFirst learned of the deeds.

   18. MidFirst and their agents were either not diligent in execution of the foreclosure

       or ignored the SPP Deed and the Bailey Deed.            Before foreclosing on a

       homeowner, it should be expected the appropriate property records would be


chain of title generally establish an irrebuttable presumption of notice. Ford v. Exxon
Mobil Chem. Co., 235 S.W.3d 615, 617 (Tex. 2007).”
3
  “Reasonable diligence requires that owners of property interests make themselves aware
of relevant information available in the public record.” …’However, reliance is not
reasonable when information revealing the truth could have been discovered within the
limitations period.’ Diligence is required when claimants have been ‘put on notice of the
alleged harm of injury-causing actions.’”

Shell Oil Co. v. Ross, 356 S.W.3d 924, 928 (Tex. 2011)

KARL B. BAILEY, JR. V. MIDFIRST BANK ET AL
ANSWER AMENDED MOTION FOR SUMMARY JUDGMENT                                 PAGE 5 OF 14
      checked to determine if there were any tax or judgment liens or second liens.

      These could affect the foreclosure and certainly would affect the allocation of

      sales proceeds.

   19. Additionally, several of the documents filed with MidFirst’s Motion have check

      marks not on the recorded copies.         These check marks seem to be noting

      particular data in the document. For example, MidFirst’s Exhibit A-1, Bailey’s

      Exhibit 1 (Chester Deed) has checks on the names of the borrowers and the

      amount borrowed. MidFirst’s Exhibit A-4, Bailey’s Exhibit 4 (Bailey Deed) has

      these same check marks. It is a key fact issue as to when the marks were made

      and by whom. If made by MidFirst or its agent prior to the sale, it is evidence of

      knowledge of the Bailey Deed and, by extension, the SPP Deed.

   20. Finally, several of the exhibits in MidFirst’s Motion were clearly downloaded

      from the Travis County Clerk’s website (they have “Unofficial Document”

      emblazoned across the pages). This shows MidFirst or its agent was accessing the

      property records for the property and should have noticed the Bailey and SPP

      deeds.

   21. At a minimum, a fact issue exists regarding what MidFirst knew and when they

      knew it.

       B. MidFirst did not prove Bailey lacks standing to challenge any assignment.

   22. As discussed supra, Bailey has standing with regard to the Chester Deed and, as

      a successor and/or assign is entitled to the benefits thereof.

   23. Texas law follows the common law rule where a debtor may bring any ground

      against an assignee to challenge an assignment as void or invalid. See Tri-Cities


KARL B. BAILEY, JR. V. MIDFIRST BANK ET AL
ANSWER AMENDED MOTION FOR SUMMARY JUDGMENT                                PAGE 6 OF 14
      Const., Inc. v. American Nat. Ins. Co., 523 S.W.2d 426, 430 (Tex. Civ. App.—

      Houston [1st Dist.] 1975, no writ); Glass v. Carpenter, 330 S.W.2d 530, 537

      (Tex. Civ. App.—San Antonio 1959, writ ref’d n.r.e.). This was recently

      acknowledged by the Federal 5th Circuit, and is the majority rule followed in

      Texas. See Reinagel, et al. v. Deutsche Bank Nat’l Trust Co., No. 12-50569, 2013

      U.S. App. LEXIS 14089 (5th Cir. (Tex.) July 11, 2013) (reversing district court,

      Hon. Sam Sparks, on this point of law);

   24. Texas Courts also permit challenging the chain of assignments regarding the right

      of a party to foreclose. See Priesmeyer v. Pacific Southwest Bank, F.S.B., 917

      S.W.2d 937 (Tex.App.—Austin 1996); see also Martin v. New Century Mortgage

      Co., 2012 Tex. App. LEXIS 4705 (Tex. App.—Houston [1st Dist.] 2012); Austin

      v. Countrywide Home Loans, 261 S.W.3d 68 (Tex. App.—Houston [1st Dist.]

      2008); Leavings v. Mills, 175 S.W.3d 301 (Tex. App.— Houston [1st Dist.] 2004,

      no pet.); Shepard v. Boone, 99 S.W.3d 263 (Tex. App.—Eastland 2003).

              C. Plaintiff has a viable cause of action for breach of contract.

   25. MidFirst claimed that it is entitled to summary judgment on Bailey’s breach of

      contract claim because Bailey did not have a contract with MidFirst.              As

      discussed supra, Bailey is a successor and/or assignee of the Chestnut Deed and is

      bound and benefited by the Deed of Trust. Therefore, he is a party to the contract.

      If MidFirst is a party to the contract, Bailey has a contract with MidFirst.

   26. The Chestnut deed is a valid contract, Bailey tendered every payment required

      of him until after foreclosure. See Exhibits 6 and 7 Affidavit and Proof of

      payments. MidFirst breached the contract by not providing notice to Bailey as


KARL B. BAILEY, JR. V. MIDFIRST BANK ET AL
ANSWER AMENDED MOTION FOR SUMMARY JUDGMENT                                   PAGE 7 OF 14
      admitted in paragraph 23 of MidFirst’s Motion. Bailey pled damages of having a

      void foreclosure executed on his home. This was a violation of Section 18 of the

      Chester Deed.

         D. Bailey’s pleading supports his assertion the foreclosure is void ab initio
                                  and should be set aside

   27. The intervening actions of the Chestnuts and SPP to deed the property to Bailey

      negated MidFirst’s authority to conduct a foreclosure. An action taken without

      authority is void. Bailey is entitled to have the foreclosure sale set aside because

      MidFirst did not own any of the debt.

               E. Bailey’s Quiet Title Claim is Supported by Proper Assignments

   28. MidFirst states Plaintiff’s Quiet Title action fails but then discusses the elements

      of a trespass to title action. Bailey has pled Quiet Title but not trespass to quiet

      title.

   29. The elements of a suit to Quiet Title are:

          (a) Petitioner's legal or equitable interest in specific property

          (b) Existence of claim by defendant that appears valid on its face and

                   interferes with or hinders petitioner's title.

          (c) Invalidity or unenforceability of defendant's claim

   30. Petitioner seeks judicial decree quieting title to property by removing cloud cast

      by defendant's claim or contention.

   31. The Bailey Title shows his interest in the specific property.          The Substitute

      Trustee’s Deed (Exhibit 8) appears valid on its face and interferes with Bailey’s

      title.



KARL B. BAILEY, JR. V. MIDFIRST BANK ET AL
ANSWER AMENDED MOTION FOR SUMMARY JUDGMENT                                     PAGE 8 OF 14
   32. MidFirst’s claim is invalid because of the void foreclosure discussed supra.

   33. Bailey has sought judicial decree quieting title to the property by removing the

      cloud cast by MidFirst’s claim or contention.

               RESPONSE TO NO-EVIDENCE SUMMARY JUDGMENT

       A. Bailey has sufficient evidence to raise fact issues on his breach of contract
                                            claim.
   34. In a no-evidence motion for summary judgment, a defendant can challenge a

      plaintiff to produce evidence to support one or more elements of the plaintiff’s

      cause of action on which the plaintiff would have the burden of proof at trial after

      an adequate time for discovery has passed. TEX. R. CIV. P. 166a(i). To avoid a no-

      evidence summary judgment, the plaintiff is not required to marshal its proof; the

      plaintiff only needs to point out evidence that raises a fact issue on the elements

      challenged in the defendant’s motion. Hamilton v. Wilson, 249 S.W.3d 425, 426

      (Tex. 2008). To raise a genuine issue of material fact, the plaintiff must produce

      more than a scintilla of evidence in support of the challenged elements. Smith v.

      O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); Ford Motor Co. v. Ridgway, 135

      S.W.3d 598, 600 (Tex. 2004). More than a scintilla of evidence is produced if the

      evidence is sufficient to allow reasonable and fair-minded people to differ in their

      conclusions on whether the challenged fact exists. Forbes, Inc. v. Granada

      Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). In evaluating whether more

      than a scintilla of evidence exists, the court must view the evidence in the light

      most favorable to the plaintiff, crediting evidence favorable to the plaintiff if

      reasonable jurors could, and disregarding contrary evidence unless reasonable

      jurors could not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).


KARL B. BAILEY, JR. V. MIDFIRST BANK ET AL
ANSWER AMENDED MOTION FOR SUMMARY JUDGMENT                                  PAGE 9 OF 14
   35. Defendant alleged that there is no evidence supporting essential elements of

      plaintiff’s cause of action for breach of contract. MidFirst only challenges the

      element requiring the existence of a contract. Bailey has shown there is more

      than a scintilla of evidence he is a successor and/or assignee of the Chester Deed

      which is the contract that MidFirst contends gives them contractual rights in the

      lien and the ability to foreclose. MidFirst is purportedly a successor and/or

      assignee of the Deed of Trust

   36. The Court should deny defendant’s no-evidence motion for summary judgment

      because plaintiff has produced sufficient evidence to raise a fact issue on the

      element challenged by MidFirst.

   37. MidFirst also seeks no-evidence summary judgment on a wrongful foreclosure

      claim that was not pled. Instead, Bailey stated the foreclosure was void.

         B. Bailey has sufficient evidence to support his Quiet Title Claim

   38. Bailey’s Quiet Tile claim evidence is discussed supra. Bailey has provided more

      than a scintilla of evidence to support the elements of Quiet Title.



            REQUEST FOR TRADITIONAL SUMMARY JUDGMENT ON
                     DEFENDANT’S COUNTERCLAIMS

A. MidFirst did not satisfy its burden under Texas Rule of Civil Procedure 166a(c)

   39. To succeed on a traditional motion for summary judgment on its counterclaim,

      the defendant must show that there is no genuine issue of material fact and that it

      is entitled to summary judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann

      Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.



KARL B. BAILEY, JR. V. MIDFIRST BANK ET AL
ANSWER AMENDED MOTION FOR SUMMARY JUDGMENT                                   PAGE 10 OF 14
      2009); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). To meet

      this burden, the defendant must conclusively prove all essential elements of its

      claim. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). A matter is

      conclusively established if reasonable people could not differ on the conclusion to

      be drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.

      2005). If the defendant establishes its right to summary judgment as a matter of

      law, the burden shifts to the plaintiff to present evidence that raises a genuine

      issue of material fact. Boudreau v. Fed. Trust Bank, 115 S.W.3d 740, 743 (Tex.

      App.—Dallas 2003, pet. denied). In deciding whether to grant defendant’s

      motion, the court must take as true all competent evidence favorable to the

      plaintiff and indulge every reasonable inference and resolve any doubts in the

      plaintiff’s favor. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308,

      311 (Tex. 2002); Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999);

      Nixon, 690 S.W.2d at 548-49.

   40. MidFirst moved for summary judgment on its counterclaim for Declaratory

      Judgment, arguing that its motion had proven it had standing to foreclose.

      Because Plaintiff has not brought an action under the Act, Movant is not

      permitted to bring counterclaims under the Act. The Declaratory Judgment Act is

      not available to settle disputes already pending before a court. Johnson v. Hewitt,

      539 S.W.2d 239, 240-241 (Tex. Civ. App. -- Houston [1st Dist.] 1976, no writ);

      Joseph v. City of Ranger, 188 S.W.2d 1013, 1014 (Tex. Civ. App. -- Eastland

      1945, writ ref'd w.o.m.). John Chezik Buick Co. v. Friendly Chevrolet Co., 749

      S.W.2d 591, 594 (Tex. App. Dallas 1988).


KARL B. BAILEY, JR. V. MIDFIRST BANK ET AL
ANSWER AMENDED MOTION FOR SUMMARY JUDGMENT                                 PAGE 11 OF 14
   41. MidFirst’s Declaratory Judgment counterclaim is duplicative of Bailey’s Quiet

      Title claim and therefore a dispute already before the Court and should be denied.

   42. Further, MidFirst has not proven that its foreclosure was valid as discussed

      supra. The SPP Deed and Bailey Deed negated MidFirst’s right to foreclose or at

      least its right to foreclose without notifying Bailey.

              B. This suit does not support a writ of possession counterclaim.

   43. Tex. R. Civ. Pro. 310 provides a writ of possession “when an order foreclosing a

      lien upon real estate is made in a suit having for its object the foreclosure of such

      lien…” This suit does not have for its object the foreclosure of the lien. Instead,

      it is a suit claiming the foreclosure of the lien was improper due, among other

      things, to a lack of standing and proper foreclosure procedure.

   44. Additionally, MidFirst, as discussed supra, has not established its right to

      foreclose.

                                    CONCLUSION

   45. Plaintiff Karl B. Bailey has provided admissible evidence to support his claims

      and defeat defendant MidFirst Bank’s amended traditional and no evidence

      motions for summary judgment. Further, admissible evidence has been provided

      to disprove defendant MidFirst Bank’s, counterclaims.

                                        PRAYER

     WHEREFORE, PREMISES CONSIDERED, Karl B. Bailey requests that the

     Amended Motion for Summary Judgment of MidFirst Bank, Defendant, be denied

     in its entirety and further that summary judgment be entered in his favor on the

     counterclaims of MidFirst Bank. If the Court grants defendant’s motion for


KARL B. BAILEY, JR. V. MIDFIRST BANK ET AL
ANSWER AMENDED MOTION FOR SUMMARY JUDGMENT                                  PAGE 12 OF 14
     summary judgment, plaintiff asks the Court to overrule plaintiff’s objections so they

     will be preserved for appeal.




                                            Respectfully submitted,


                                            /s/ Anthony G. Read
                                            ---------------------------------
                                            William B. Gammon SBN: 07611280
                                            Anthony G. Read SBN: 24056184
                                            1201 Spyglass Dr., Suite 100
                                            Austin, Texas 78746
                                            (512) 472-8909
                                            (888) 545-4279 (fax)
                                            firm@gammonlawoffice.com
                                            Attorneys for Karl B. Bailey




KARL B. BAILEY, JR. V. MIDFIRST BANK ET AL
ANSWER AMENDED MOTION FOR SUMMARY JUDGMENT                                  PAGE 13 OF 14
                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing instrument has been
served via ProDoc E-Service or fax on June 25, 2014, in accordance with Rule 21a,
Texas Rules of Civil Procedure, on all counsel of record.


CHRIS H. POCHYLA
BARRETT DAFFIN FRAPPIER TURNER & ENGEL, LLP
15000 Surveyor Boulevard, Suite 100
Addison, TX 75001
Phone: 972-340-7955
Fax: 972-341-0734



                                                   /s/ Anthony G. Read
                                                   Anthony G. Read




KARL B. BAILEY, JR. V. MIDFIRST BANK ET AL
ANSWER AMENDED MOTION FOR SUMMARY JUDGMENT                                 PAGE 14 OF 14
APPENDIX
 TAB E
TEX. R. CIV. P. 310 Writ of Possession

  When an order foreclosing a lien upon real estate is made in a suit having for its
object the foreclosure of such lien, such order shall have all the force and effect of
a writ of possession as between the parties to the foreclosure suit and any person
claiming under the defendant to such suit by any right acquired pending such suit;
and the court shall so direct in the judgment providing for the issuance of such
order. The sheriff or other officer executing such order of sale shall proceed by
virtue of such order of sale to place the purchaser of the property sold thereunder in
possession thereof within thirty days after the day of sale.
APPENDIX
 TAB F
7 Tex. Admin. Code § 65.3. Definitions

  The following words and terms, when used in this chapter, shall have the
following meanings, unless the context clearly indicates otherwise.
…
(21) Wrap-around real estate loan--A financing device whereby a junior mortgage
lien secures a liability consisting of the amount of senior debt, plus any additional
funds advanced to the borrower.
APPENDIX
 TAB G
TEX. PROP. CODE § 51.002. Sale of Real Property Under Contract Lien

  (a) A sale of real property under a power of sale conferred by a deed of trust or
other contract lien must be a public sale at auction held between 10 a.m. and 4 p.m.
of the first Tuesday of a month. Except as provided by Subsection (h), the sale
must take place at the county courthouse in the county in which the land is located,
or if the property is located in more than one county, the sale may be made at the
courthouse in any county in which the property is located. The commissioners
court shall designate the area at the courthouse where the sales are to take place
and shall record the designation in the real property records of the county. The sale
must occur in the designated area. If no area is designated by the commissioners
court, the notice of sale must designate the area where the sale covered by that
notice is to take place, and the sale must occur in that area.

(b) Except as provided by Subsection (b-1), notice of the sale, which must include
a statement of the earliest time at which the sale will begin, must be given at least
21 days before the date of the sale by:

  (1) posting at the courthouse door of each county in which the property is located
a written notice designating the county in which the property will be sold;

  (2) filing in the office of the county clerk of each county in which the property is
located a copy of the notice posted under Subdivision (1); and

  (3) serving written notice of the sale by certified mail on each debtor who,
according to the records of the mortgage servicer of the debt, is obligated to pay
the debt.

(b-1) If the courthouse or county clerk's office is closed because of inclement
weather, natural disaster, or other act of God, a notice required to be posted at the
courthouse under Subsection (b)(1) or filed with the county clerk under Subsection
(b)(2) may be posted or filed, as appropriate, up to 48 hours after the courthouse or
county clerk's office reopens for business, as applicable.

(c) The sale must begin at the time stated in the notice of sale or not later than three
hours after that time.
(d) Notwithstanding any agreement to the contrary, the mortgage servicer of the
debt shall serve a debtor in default under a deed of trust or other contract lien on
real property used as the debtor's residence with written notice by certified mail
stating that the debtor is in default under the deed of trust or other contract lien and
giving the debtor at least 20 days to cure the default before notice of sale can be
given under Subsection (b). The entire calendar day on which the notice required
by this subsection is given, regardless of the time of day at which the notice is
given, is included in computing the 20-day notice period required by this
subsection, and the entire calendar day on which notice of sale is given under
Subsection (b) is excluded in computing the 20-day notice period.

(e) Service of a notice under this section by certified mail is complete when the
notice is deposited in the United States mail, postage prepaid and addressed to the
debtor at the debtor's last known address. The affidavit of a person knowledgeable
of the facts to the effect that service was completed is prima facie evidence of
service.

(f) Each county clerk shall keep all notices filed under Subdivision (2) of
Subsection (b) in a convenient file that is available to the public for examination
during normal business hours. The clerk may dispose of the notices after the date
of sale specified in the notice has passed. The clerk shall receive a fee of $ 2 for
each notice filed.

(f-1) If a county maintains an Internet website, the county must post a notice of
sale filed with the county clerk under Subsection (b)(2) on the website on a page
that is publicly available for viewing without charge or registration.

(g) The entire calendar day on which the notice of sale is given, regardless of the
time of day at which the notice is given, is included in computing the 21-day notice
period required by Subsection (b), and the entire calendar day of the foreclosure
sale is excluded.

(h) For the purposes of Subsection (a), the commissioners court of a county may
designate an area other than an area at the county courthouse where public sales of
real property under this section will take place that is in a public place within a
reasonable proximity of the county courthouse as determined by the
commissioners court and in a location as accessible to the public as the courthouse
door. The commissioners court shall record that designation in the real property
records of the county. A designation by a commissioners court under this section is
not a ground for challenging or invalidating any sale. A sale must be held at an
area designated under this subsection if the sale is held on or after the 90th day
after the date the designation is recorded. The posting of the notice required by
Subsection (b)(1) of a sale designated under this subsection to take place at an area
other than an area of the courthouse remains at the courthouse door of the
appropriate county.

(i) Notice served on a debtor under this section must state the name and address of
the sender of the notice and contain, in addition to any other statements required
under this section, a statement that is conspicuous, printed in boldface or
underlined type, and substantially similar to the following: "Assert and protect
your rights as a member of the armed forces of the United States. If you are or your
spouse is serving on active military duty, including active military duty as a
member of the Texas National Guard or the National Guard of another state or as a
member of a reserve component of the armed forces of the United States, please
send written notice of the active duty military service to the sender of this notice
immediately."
APPENDIX
 TAB H
TEX. R. CIV. P. 166a Summary Judgment

  (a) For Claimant. --A party seeking to recover upon a claim, counterclaim, or
cross-claim or to obtain a declaratory judgment may, at any time after the adverse
party has appeared or answered, move with or without supporting affidavits for a
summary judgment in his favor upon all or any part thereof. A summary judgment,
interlocutory in character, may be rendered on the issue of liability alone although
there is a genuine issue as to amount of damages.

(b) For Defending Party. --A party against whom a claim, counterclaim, or cross-
claim is asserted or a declaratory judgment is sought may, at any time, move with
or without supporting affidavits for a summary judgment in his favor as to all or
any part thereof.

(c) Motion and Proceedings Thereon. --The motion for summary judgment shall
state the specific grounds therefor. Except on leave of court, with notice to
opposing counsel, the motion and any supporting affidavits shall be filed and
served at least twenty-one days before the time specified for hearing. Except on
leave of court, the adverse party, not later than seven days prior to the day of
hearing may file and serve opposing affidavits or other written response. No oral
testimony shall be received at the hearing. The judgment sought shall be rendered
forthwith if (i) the deposition transcripts, interrogatory answers, and other
discovery responses referenced or set forth in the motion or response, and (ii) the
pleadings, admissions, affidavits, stipulations of the parties, and authenticated or
certified public records, if any, on file at the time of the hearing, or filed thereafter
and before judgment with permission of the court, show that, except as to the
amount of damages, there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law on the issues expressly set
out in the motion or in an answer or any other response. Issues not expressly
presented to the trial court by written motion, answer or other response shall not be
considered on appeal as grounds for reversal. A summary judgment may be based
on uncontroverted testimonial evidence of an interested witness, or of an expert
witness as to subject matter concerning which the trier of fact must be guided
solely by the opinion testimony of experts, if the evidence is clear, positive and
direct, otherwise credible and free from contradictions and inconsistencies, and
could have been readily controverted.
(d) Appendices, References and Other Use of Discovery Not Otherwise on File. --
Discovery products not on file with the clerk may be used as summary judgment
evidence if copies of the material, appendices containing the evidence, or a notice
containing specific references to the discovery or specific references to other
instruments, are filed and served on all parties together with a statement of intent to
use the specified discovery as summary judgment proofs: (i) at least twenty-one
days before the hearing if such proofs are to be used to support the summary
judgment; or (ii) at least seven days before the hearing if such proofs are to be used
to oppose the summary judgment.

(e) Case Not Fully Adjudicated on Motion. --If summary judgment is not rendered
upon the whole case or for all the relief asked and a trial is necessary, the judge
may at the hearing examine the pleadings and the evidence on file, interrogate
counsel, ascertain what material fact issues exist and make an order specifying the
facts that are established as a matter of law, and directing such further proceedings
in the action as are just.

(f) Form of Affidavits; Further Testimony. --Supporting and opposing affidavits
shall be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is competent
to testify to the matters stated therein. Sworn or certified copies of all papers or
parts thereof referred to in an affidavit shall be attached thereto or served
therewith. The court may permit affidavits to be supplemented or opposed by
depositions or by further affidavits. Defects in the form of affidavits or attachments
will not be grounds for reversal unless specifically pointed out by objection by an
opposing party with opportunity, but refusal, to amend.

(g) When Affidavits Are Unavailable. --Should it appear from the affidavits of a
party opposing the motion that he cannot for reasons stated present by affidavit
facts essential to justify his opposition, the court may refuse the application for
judgment or may order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make such other order as is
just.

(h) Affidavits Made in Bad Faith. --Should it appear to the satisfaction of the court
at any time that any of the affidavits presented pursuant to this rule are presented in
bad faith or solely for the purpose of delay, the court shall forthwith order the party
employing them to pay to the other party the amount of the reasonable expenses
which the filing of the affidavits caused him to incur, including reasonable
attorney's fees, and any offending party or attorney may be adjudged guilty of
contempt.

(i) No-Evidence Motion. --After adequate time for discovery, a party without
presenting summary judgment evidence may move for summary judgment on the
ground that there is no evidence of one or more essential elements of a claim or
defense on which an adverse party would have the burden of proof at trial. The
motion must state the elements as to which there is no evidence. The court must
grant the motion unless the respondent produces summary judgment evidence
raising a genuine issue of material fact.
