                                                                                            ACCEPTED
                                                                                       03-14-00529-CV
                                                                                              3993295
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                  2/2/2015 10:20:59 PM
                                                                                      JEFFREY D. KYLE
                                                                                                CLERK
                                No. 03-14-00529-CV

                             In the Court of Appeals                  FILED IN
                                                               3rd COURT OF APPEALS
                                      for the                      AUSTIN, TEXAS
                      Third Court of Appeals District of Texas 2/2/2015 10:20:59 PM
                             Sitting at Austin, Texas            JEFFREY D. KYLE
                                                                     Clerk

________________________________________________________________________

               Jerome J. Isaac and Michelle P. Isaac, Appellants

                                         vs.

                   Vendor Resource Management, Inc.,
            Mortgage Electronic Registration Systems, Inc., and
                       Citimortgage, Inc., Appellees
________________________________________________________________________

                   Appealed from the 26th District Court
                       of Williamson County, Texas
              The Honorable Billy Ray Stubblefield, Presiding
________________________________________________________________________

                                 Brief of Appellants,

                 Jerome J. Isaac and Michelle P. Isaac
___________________________________________________________________

                                       Michael Brinkley
                                       State Bar No. 03004300
                                       BRINKLEY LAW PLLC
                                       P. O. Box 820711
                                       Fort Worth, TX 76182-0711
                                       888.511.5854; 817.284.3535
                                       fax 888.511.0946
                                       michael@brinkleypllc.com
                                       Attorney for Appellants


BRIEF OF APPELLANTS
                               Certificate of Parties

      The following is a complete list of all parties to this action:

      (1)   Jerome J. Isaac and Michelle P. Isaac, appellants
            123 Dana Drive, Hutto, Texas 78634

      (2)   Vendor Resource Management, Inc. (“VRM”), appellee
            4100 International Parkway, Suite 1000
            Carrollton, Texas 75007

      (3)   Mortgage Electronic Registration Systems, Inc. (“MERS”), appellee
            1818 Library St., Ste. 300
            Reston, Virginia 20190-6280

      (4)   Citimortgage, Inc. (“Citi”), appellee
            1595 Springhill Road #310
            Vienna, Virginia 22182

      (5)   Michael Brinkley, attorney for appellants
            BRINKLEY LAW PLLC
            P. O. Box 820711
            Fort Worth, Texas 76182-0711

      (6)   John Ellis, attorney for appellees MERS and Citi
            HUSCH BLACKWELL LLP
            2200 Ross Avenue, Suite 2200
            Dallas, Texas 75201

      (7)   Christopher Ferguson, attorney for appellee VRM
            JACK O’BOYLE & ASSOCIATES
            P. O. Box 815369
            Dallas, Texas 75381

      (8)   Mark Hopkins, attorney for appellee VRM
            HOPKINS & WILLIAMS
            12117 Bee Caves Road, Suite 260
            Austin, Texas 78738

BRIEF OF APPELLANTS                        2
                                 Subject Index

                                                                               Page

List of Authorities                                                               4

Statement of the Case                                                             6

Statement Regarding Oral Argument                                                 6

Points of Error                                                                   7

Statement of the Facts                                                            7

Summary of Argument                                                               8

Argument and Authorities

      POINT OF ERROR 1. The trial court erred in granting Summary
          Judgment to Citimortgage, MERS and VRM because there was
          sufficient summary judgment evidence to permit the Isaacs to
          proceed to trial on one or more of their claims.                        9

      POINT OF ERROR 2. The trial court erred in granting Summary
          Judgment to Citimortgage, MERS and VRM, since the substitute
          substitute trustees putatively appointed by or for Citimortgage
          were each and all acting, on the face of the summary judgment
          record, without capacity at all relevant times, and hence all acts
          taken in furtherance of the invalid trustee sale are void.             22

Conclusion/Prayer                                                                25

Certificate of Compliance                                                        26

Certificate of Service                                                           27

Appendix 1 Judgment                                                             28f

Appendix 2 Statutes and Rules                                                  30ff




BRIEF OF APPELLANTS                     3
                               List of Authorities

Cases                                                                       Page

Biggers v. BAC Home Loans Servicing, LP, 2011 WL 588059,
       2011 U.S. Dist. LEXIS 13104 (N.. D. Tex. 2011)                  13, 17, 21
Bonilla v. Roberson, 918 S.W.2d 17, 21 (Tex. App. – Corpus Christi, 1996)      24
Grotjohn Precise Connexiones International v. Jem Financial, Inc.,
      12 S.W.3d 859, 865 (Tex.App.–Texarkana 2000)                             18
Hilton v. Texas Inv. Bank, N.A., 650 S.W.2d 545, 547
      (Tex.App.– Houston [14th Dist.] 1983, no writ)                           18
                                              th
Kaltenbach v. Richards, 464 F.3d 524-529 (5 Cir. 2006)                         13
Kingman Holdings, LLC v. CitiMortgage, Inc., No. 4:10-cv-619,
      2011 BL 129902 (E.D. Tex. May 17, 2011)                                  12
Kolb v. Texas Employers' Ins. Ass'n, 585 S.W.2d 870, 873
      (Tex.Civ.App. – Texarkana 1979, writ ref'd n.r.e.)                       18
Martin v. Cadle Co., 133 S.W.3d 897, 905; 2004 Tex. App.
      LEXIS 4478 **16-17 (Tex.App. – Dallas 2004)                              24
Miller v. BAC Home Loans Servicing, L.P., 726 F.3d 717, 723-724
      (5th Cir. 2013)                                                      21, 23
Taylor Elec . Services, Inc. v. Armstrong Elec. Supply Co.,
      167 S.W.3d 522, 531-32 (Tex. App.-Ft. Worth 2005, no pet.)           11, 12

Statutes and Rules

TEXAS CIV. PRAC. & REM. CODE §12.001 et seq                                    11
TEX. FIN. CODE Chapter 392                                             13, 20, 21
TEXAS PROPERTY CODE §§24.002 and 24.005                                        19
TEXAS PROPERTY CODE §51.001(4)                                                 15




BRIEF OF APPELLANTS                    4
                                 No. 03-14-00529-CV

                             In the Court of Appeals
                                      for the
                      Third Court of Appeals District of Texas
                             Sitting at Austin, Texas

________________________________________________________________________

                Jerome J. Isaac and Michelle P. Isaac, Appellants

                                           vs.

                   Vendor Resource Management, Inc.,
            Mortgage Electronic Registration Systems, Inc., and
                       Citimortgage, Inc., Appellees
________________________________________________________________________

                   Appealed from the 26th District Court
                       of Williamson County, Texas
              The Honorable Billy Ray Stubblefield, Presiding
________________________________________________________________________

                                  Brief of Appellants,

                 Jerome J. Isaac and Michelle P. Isaac
___________________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

      Appellants, Jerome J. Isaac and Michelle P. Isaac (hereinafter “Isaac”), respectfully

submit this brief in appeal of the summary judgment that they take nothing in their claims

against Vendor Resource Management, Inc. (“VRM”), Mortgage Electronic Registration

Systems, Inc. (“MERS”) and Citimortgage, Inc. (“Citi”) and that their claims against


BRIEF OF APPELLANTS                         5
appellees be dismissed with prejudice, signed by the trial court May 23, 2014 (“Summary

Judgment”), which judgment the trial court declined to vacate. This is an appeal from

the 26th District Court of Williamson County, Texas, in Cause No. 13-0472-C26, in

which Appellants Isaac were the plaintiffs and appellees were the Appellees.



                                 Statement of the Case

       This is a case brought by the Isaacs against appellees for violations of the Texas

Debt Collection Act (seeking damages and injunctive relief), Property Code, for the

filing of a fraudulent lien instrument, breach of contract, to quiet title subject to any

valid and subsisting lien, and seeking injunctive relief under the trial court’s inherent

powers and the TDCA. After considering summary judgment motions filed by (a) VRM

and (b) MERS and Citi, the trial court granted the summary judgment motions. Isaacs

filed their Motion to Vacate, which was overruled by operation of law, after which

the Isaacs gave notice of their appeal.



                        Statement Regarding Oral Argument

       Appellants would welcome the opportunity for oral argument and requests they

be so heard, due to the novelty of the issues and factual background to which the applicable

law is to be applied.


BRIEF OF APPELLANTS                          6
                                        Points of Error

POINT OF ERROR 1. The trial court erred in granting Summary Judgment to

      Citimortgage, MERS and VRM because there was sufficient summary

      judgment evidence to permit the Isaacs to proceed to trial on one or more

      of their claims.

POINT OF ERROR 2. The trial court erred in granting Summary Judgment to

      Citimortgage, MERS and VRM, since the substitute substitute trustees

      putatively appointed by or for Citimortgage were each and all acting, on

      the face of the summary judgment record, without capacity at all relevant

      times, and hence all acts taken in furtherance of the invalid trustee sale are

      void.



                                    Statement of the Facts

      The Isaacs filed their original petition with the District Clerk of Williamson County,

which assigned the case to the 26th District Court.1 The Isaacs thereafter filed a First

Amended Original Petition.2 VRM, MERS and Citi filed their Motions for Summary




      1
          District Clerk’s Official Record, pages 5-16.
      2
          District Clerk’s Official Record, pages 23-34.

BRIEF OF APPELLANTS                              7
Judgment on April 17, 2014 and April 3, 2014 respectively.3 The Isaacs filed their

Response4 to the Motions for Summary Judgment on May 19, 2014 as permitted by

the Court’s Order of May 15, 2014.5 Thereafter, on May 23, 2014, the trial court conducted

a hearing on the Motions for Summary Judgment.6 The Court granted the Summary

Judgment.7 The Isaacs filed their Motion to Vacate Judgment,8 which was overruled

by operation of law, and this appeal was taken by notice of appeal filed August 21, 2014.9



                                    Summary of Argument

       The 26th District Court erred in granting a summary judgment for VRM, MERS

and Citimortgage because the evidence before the court was to the effect that Citimortgage,

MERS, the putatively appointed substitute trustees who conducted the sale of the Isaacs’

Property, and VRM all lacked capacity for their various acts as a matter of public record,

and because the summary judgment evidence and argument within the motions for


       3
           District Clerk’s Official Record, pages 314-359 and 40-313.
       4
           District Clerk’s Official Record, pages 369-401.
       5
           District Clerk’s Official Record, pages 363-366.
       6
           District Clerk’s Official Record, page 4 (docket sheet) and 432 (summary judgment).
       7
           District Clerk’s Official Record, page 432 (judgment) and page 4 (docket sheet).
       8
           District Clerk’s Official Record, pages 434-456.
       9
           District Clerk’s Official Record, pages 467-468.

BRIEF OF APPELLANTS                              8
summary judgment and response established that there was a sufficient legal basis for,

and factual support for, each of the Isaacs’claims. Therefore, there was sufficient basis

for the Isaacs’ claims under TDCA, the Property Code, the Civil Practice & Remedies

Code that the foreclosure threatened and effected in 2013 was wrongfully pursued by

Citi and the subsequent forcible detainer proceeding was wrongfully pursued by VRM

even after VRM no longer had any claim of title to the Property. The Isaacs’ claims

that involved allegations of reliance on representations of Citi personnel were not

appropriate for disposition by summary judgment.



                             Argument and Authorities

POINT OF ERROR 1. The trial court erred in granting Summary Judgment to

      Citimortgage, MERS and VRM because there was sufficient summary

      judgment evidence to permit the Isaacs to proceed to trial on one or more

      of their claims.

      The 2013 substitute trustee’s sale, the resulting deed, and all acts taken with respect

to the subsequent forcible detainer action should be held invalid for the plain reasons

that (a) the process was predicated on the Assignment, which was not supported by

authority to act as nominee for the assigning entity (the essential facts of which were

not denied in the Motions for Summary Judgment, but were established by them).


BRIEF OF APPELLANTS                          9
       The trial court should not have rendered the Summary Judgment, since (a) the

Assignment and hence any appointment of trustees following the Assignment was of

no effect; (b) that the foregoing documents are all void and should be removed from

Official Public Records of Williamson County, Texas; (c) that Citi, MERS and VRM

are liable to the Isaacs in respect of violations of the Texas Debt Collection Act for the

Isaacs’ reasonable and necessary attorney’s fees and costs of court in this proceeding;

and for such other and further relief as may be provided by law.

       Citi, MERS and VRM were not entitled to summary judgment on a no-evidence

or traditional basis:

              A.        Deficient Summary Judgment Evidence. The declaration of Travis

                        Nurse (Exhibit A to the Citi-MERS MSJ) is insufficient as summary

                        judgment evidence since it (1) avers no personal knowledge on the

                        part of the affiant, but merely an examination of records in what

                        form we are not told, (2) claims no actual examination of a document

                        or record, only potentially vouching for electronic copies maintained

                        by Citi, and clearly containing copies that are “Representation of

                        Printed Document” rather than a copy of a physical document, (3)

                        makes no claim of custody of any of the referenced documents by

                        Citi on the basis of affiant having actually examined the document


BRIEF OF APPELLANTS                           10
                  itself.

            B.    Fraudulent Lien Claim. It is clear from the summary judgment

                  evidence tendered to the Court by Citi that given the absence of

                  apparent capacity on the part of the persons executing the Assignment,

                  there have been violations of Texas Civil Practice & Remedies Code

                  §12.002 et seq. The Isaacs are therefore entitled to damages, including

                  statutory damages. Citi and MERS actively and knowingly made,

                  presented or used a document, including but not limited to the

                  Assignment, intending that the Assignment be given effect, intending

                  that The Isaacs suffer financial injury, specifically the loss of their

                  homestead as indicated by all other pleading and proof. Thus, the

                  elements of Texas Civil Practice and Remedies Code §12.001 et

                  seq. and the jeopardy of loss of title to The Isaacs’ Property have

                  been met and proven by the summary judgment evidence in the MSJ.

                  Intent to cause harm in these cases is presumed. “In the context

                  of Section 12.002(a)(3), Texas courts have interpreted the ‘intent’

                  element to require only that the person filing the fraudulent lien be

                  aware of the harmful effect that filing such a lien could have on a

                  landowner. Taylor Elec . Services, Inc. v. Armstrong Elec. Supply


BRIEF OF APPELLANTS                      11
                  Co., 167 S.W.3d 522, 531-32 (Tex. App.-Ft. Worth 2005, no pet.).”

                  Kingman Holdings, LLC v. BAC Home Loans Servicing, LP, 2011

                  U.S. Dist. LEXIS 52807, 11-12 (E.D. Tex. Apr. 21, 2011). Appellees

                  Citi and MERS possessed such awareness at the times of their relevant

                  acts with the Assignment, which is clear from the fact that the same

                  person signed the Assignment as a putative officer of MERS and

                  as an assistant vice president of Sterling Capital, payee of the Note.

                  Kathy Thorp was never constituted as an assistant secretary of MERS

                  by the board of directors of MERS, as demonstrated by the appended

                  Letter from Ohio Secretary of State, available online at

                  http://www.sos.state.oh.us/SOS/Upload/news/DettelbachLtr9-1-10.pdf

                  and the deposition of William Hultman referenced therein, Mr.

                  Hultman at such time being secretary of MERS, particularly pages

                  94-96ff of such deposition, and thus Ms. Thorp did not have authority

                  to execute the Assignment (Exhibit D to the Citi-MERS Motion).

                  Hence, all acts flowing from and after the Assignment should be

                  held void, the foreclosure acts disregarded and the Substitute Trustee’s

                  Deed of 2013 removed from the chain of title to the Property.

            C.    Texas Debt Collection Act. The summary judgment evidence


BRIEF OF APPELLANTS                      12
                  appended to the Citi-MERS Motion proves that Citi threatened to

                  take and did take actions prohibited by law, in violation of Chapter

                  392, Finance Code. Citi was certainly engaged in debt collection

                  in the attempt to threaten and effect a nonjudicial foreclosure of

                  a claimed lien on the Property. Citi is charged with knowledge of

                  the state of the public record, which began with the fact that there

                  was no proper Assignment to Citi, hence no proper appointment

                  of substitute trustees by Citi, and extends to the resulting Substitute

                  Trustee’s Deed and the conveyances since (ending, so far as the

                  summary judgment evidence shows, in Citi). It would seem that

                  applying the standards of Biggers v. BAC Home Loans Servicing,

                  LP, 2011 WL 588059, 2011 U.S. Dist. LEXIS 13104 (N.. D. Tex.

                  2011) and Kaltenbach v. Richards, 464 F.3d 524-529 (5th Cir. 2006),

                  the activities of Citi with respect to foreclosure acts were clearly

                  collection activity, and should be chargeable to Citi. Exhibits J-1

                  and J-2 as well as the Howell Affidavit to the Citi-MERS Motion

                  establish that the acts complained of with respect to foreclosure

                  activity were unquestionably done by Citi and not another party

                  or nonparty.


BRIEF OF APPELLANTS                      13
            D.    Injunctive Relief. The Isaacs are entitled to injunctive relief because

                  they are statutorily entitled to it under TDCA due to the foregoing

                  wrongful acts of Citi and VRM, to prevent further acts to deprive

                  them of title to and possession of the Property, since there is a

                  complete lack of chain of authority for all acts since the Assignment.

                  There is further a right to injunctive relief under the Court’s equitable

                  powers, to prevent violations of the Isaacs’ right to the ownership

                  and possession of the Property as against those who cannot

                  demonstrate their own right (including VRM), and from the

                  Assignment forward Citi cannot claim that right.

            E.    Damages and Exemplary Damages. Through the summary judgment

                  evidence of all parties, The Isaacs have demonstrated their right

                  to statutory, actual and exemplary damages as to Appellees, because

                  of the clear absence of authority for the various persons to act for

                  MERS (as to the Assignment), Citi and VRM, for the signers of

                  documents to act in threatening or attempting to effect foreclosure

                  in 2013 or foreclosure or eviction at present. The Isaacs are entitled

                  to statutory damages under TDCA, but are further entitled to actual

                  damages on their other theories of recovery, and to exemplary


BRIEF OF APPELLANTS                       14
                  damages due to the willful, wanton and reckless nature of the acts

                  of Appellees in the absence of a chain of authority from the

                  unsupported Assignment and subsequent instruments through the

                  chain of deeds. Citi therefore cannot have proceeded in good faith

                  to threaten foreclosure as to The Isaacs, when Citi was charged with

                  knowledge of the absence of essential items in the public record

                  beginning with the Assignment.

            F.    Owner or Holder Status is Certainly Required to be a Mortgagee.

                  The plain language of the relevant statute, TEXAS PROPERTY CODE

                  §51.001(4) provides (emphasis supplied):

                        "Mortgagee" means:
                        (A) the grantee, beneficiary, owner, or holder of a security
                        instrument;
                        (B) a book entry system;or
                        (C) if the security interest has been assigned of record,
                        the last person to whom the security interest has been
                        assigned of record.

                  Thus since Citi had chosen to establish “mortgagee” status through

                  recording, it is bound by the ineffectiveness of the Assignment, and

                  should be required to record a proper and effective assignment or

                  to refrain from attempting to enforce the lien of the Deed of Trust.

            G.    Wrongful Foreclosure Claim Is Valid. The Citi-MERS Motion


BRIEF OF APPELLANTS                     15
                  misinterprets and misapplies the case law regarding wrongful

                  foreclosure claims. Recently, the standard was clearly set forth by

                  the Chief Judge of the Northern District:

                             In Texas, the elements of a wrongful foreclosure
                        claim are " (1) a defect in the foreclosure sale proceed-
                        ings; (2) a grossly inadequate selling price; and (3)
                        a causal connection between the defect and the grossly
                        inadequate selling price." Sauceda v. GMAC Mortg.
                        Corp., 268 S.W.3d 135, 139 (Tex.App.2008, no pet.)
                        (citing Charter Nat'l Bank-Houston v. Stevens, 781
                        S.W.2d 368, 371 (Tex.App.1989, writ denied)); see
                        also Sotelo v. Interstate Fin. Corp., 224 S.W.3d 517,
                        523 (Tex.App.2007, no pet.) (" The elements of
                        wrongful foreclosure are (1) an irregularity at the sale;
                        and (2) the irregularity contributed to an inadequate
                        price." (citing Forestier v. San Antonio Sav. Ass'n, 564
                        S.W.2d 160, 165 (Tex.App.1978, writ ref'd n.r.e.))).
                        A claim for " wrongful foreclosure" is not available
                        based merely on showing a defect in the foreclosure
                        process; it is also necessary that there be an inadequate
                        selling price resulting from the defect. Texas courts
                        have yet to recognize a claim for " attempted wrongful
                        foreclosure." See Port City State Bank v. Leyco Constr.
                        Co., 561 S.W.2d 546, 547 (Tex.Civ.App.1977, no writ);
                        Peterson v. Black, 980 S.W.2d 818, 823 (Tex.App.1998,
                        no pet.) (" [T]he mortgagor is only entitled to [recovery
                        for the difference between the foreclosure value and
                        the remaining balance on the debt] if (1) title to the
                        property has passed to a third party; or (2) the property
                        has been appropriated to the use and benefit of the
                        mortgagee." ); see also Farrell v. Hunt, 714 S.W.2d
                        298, 299 (Tex.1986) (" In a wrongful foreclosure suit
                        the measure of damages is the difference between the
                        value of the property in question at the date of
                        foreclosure and the remaining balance due on the

BRIEF OF APPELLANTS                     16
                         indebtedness.").

                                 Because under Texas law an inadequate selling
                         price is a necessary element of a wrongful foreclosure
                         action, a foreclosure sale is a precondition to recovery.
                         The Biggers only allege that BAC undertook wrongful
                         conduct in preparation for foreclosure, but not that the
                         foreclosure sale actually occurred or that the price that
                         was paid was inadequate. The Biggers have therefore
                         failed to plead a plausible claim for wrongful foreclo-
                         sure. See, e.g., Smith v. J.P. Morgan Chase Bank N.A.,
                         2010 WL 4622209, at *2-3 (S.D.Tex. Nov. 4, 2010)
                         (dismissing wrongful foreclosure claim under Rule
                         12(b)(6) where no foreclosure sale occurred, because
                         of failure to state claim recognized under state law);
                         Baker v. Countrywide Home Loans, Inc., 2009 WL
                         1810336, at *4 (N.D.Tex. June 24, 2009) (Boyle, J.)
                         (granting summary judgment because the Isaacs never
                         lost possession of homestead, even though lender
                         commenced foreclosure proceedings).

                  Biggers, at 729-730. Having lost possession is not a necessary element

                  of the claim, but having lost title is. The Isaacs clearly lost title to

                  the Property, and have been in constant jeopardy of loss of possession

                  of the Property ever since the first notice/demand for possession

                  was issued to them by the anonymous party via Jack O’Boyle &

                  Associates, even to the point of imminent threat of enforcement of

                  the writ of possession in September, 2013. Given the state of the

                  public record, the sale was inherently tainted and should be set aside.

                  Terra XXI, Ltd., cited by Citi-MERS in their Motion at page 28,

BRIEF OF APPELLANTS                      17
                  did not opine that a sale price exceeding 50% of the property’s value

                  was not per se grossly inadequate, but cited to yet another case where

                  that finding had been made; Terra involved a property whose fair

                  market value was stated to be $5,700,000, and hence not comparable

                  in terms of the marketability or range of potential bidders to the

                  Property. Additionally, the tender of the full amount of the Note

                  should not be held to be required here as a condition of removal

                  of the Substitute Trustee’s Deed from the chain of title to the Property,

                  but merely reinstatement of the Note and lien to its status before

                  it was wrongfully accelerated and the claimed lien securing it

                  foreclosed.

            H.    Summary judgment is particularly inappropriate when matters that

                  are inherently those for a fact finder-such as intent, knowledge,

                  motive, reliance, and the like-constitute essential elements of

                  recovery or defense. Grotjohn Precise Connexiones International

                  v. Jem Financial, Inc., 12 S.W.3d 859, 865 (Tex.App.–Texarkana

                  2000), emphasis supplied; citing Hilton v. Texas Inv. Bank, N.A.,

                  650 S.W.2d 545, 547 (Tex.App.– Houston [14th Dist.] 1983, no

                  writ); Kolb v. Texas Employers' Ins. Ass'n, 585 S.W.2d 870, 873


BRIEF OF APPELLANTS                       18
                  (Tex.Civ.App. – Texarkana 1979, writ ref'd n.r.e.). When, as here,

                  The Isaacs relied on misrepresentations by Citi (a) as to the capacity

                  of one or more persons purporting to act (1) in effecting a foreclosure

                  for Appellee, (b) modifying or not modifying the Loan while at the

                  same time threatening and effecting foreclosure while promising

                  not to foreclose, (c) appointing trustees and/or to have such trustees

                  act to effect the non-judicial foreclosure which they did in 2013,

                  then there is at minimum conflicting evidence as to representations

                  bearing on liability of The Isaacs and Citi related to the Loan, and

                  the trier of fact should have an opportunity to fully evaluate the

                  testimony of the individual The Isaacs, Citi’s representatives and

                  other persons in open court at trial.

            I.    VRM’s summary judgment evidence, via Exhibit D (Berain Affidavit)

                  and Exhibit E to the VRM Motion, establish that VRM per se violated

                  the Texas Debt Collection Act in seeking to take actions prohibited

                  by law in seeking eviction of The Isaacs from the Property, because

                  demand for possession was made (prior to filing the Forcible Detainer

                  Suit) that did not comport with the requirements of Texas Property

                  Code §§24.002 and 24.005 that such demand for possession be made


BRIEF OF APPELLANTS                      19
                  by, or clearly on behalf of, a party having a clear right to the Property.

                  A generic notice and demand, rather than one made on behalf of

                  a clear and specific claimant, is not statutorily sufficient to support

                  a forcible detainer suit. Further, an entity such as VRM that is and

                  was not in title to the Property was without standing to be the plaintiff

                  in the Forcible Detainer Case. Therefore, in violation of Tex. Fin.

                  Code §392.301(a)(8), VRM threatened to take and/or did take several

                  actions prohibited by law, in that:

                  (1)    VRM, relying on the insufficient pre-suit notice to The Isaacs

                         that is shown appended to the Berain Affidavit, filed suit for

                         forcible detainer against The Isaacs in the Justice Court,

                         Precinct 4, of Williamson County, Texas, in the Forcible

                         Detainer Case and obtained a writ of possession, as detailed

                         in the Brinkley Affidavit appended to the RSJ, and threatened

                         then to imminently dispossess The Isaacs from the Property;

                  (2)    the Reconveyance Deed, as VRM refers to it, Exhibit E to

                         the VRM Motion, establishes that VRM wishes to assert that

                         it conveyed the Property to Appellee Citi on June 10, 2013,

                         yet the Writ of Possession was issued on behalf of VRM by


BRIEF OF APPELLANTS                       20
                              the Justice of the Peace, Precinct 4, on September 16, 2013,

                              some three months after VRM now says it didn’t claim

                              any interest in the Property;

                      (3)     Under Tex. Fin. Code §392.403, VRM’s actions without legal

                              foundation constitute violations of the TDCA, and render

                              VRM liable to The Isaacs for statutory damages, injunctive

                              relief, costs and reasonable attorney’s fees;

                      (4)     The acts of VRM (a) were debt collection activities, and (b)

                              were in violation of and actionable under TDCA because

                              they were actions taken that were prohibited by law. Biggers

                              v. BAC Home Loans Servicing, LP, 2011 WL 588059, 2011

                              U.S. Dist. LEXIS 13104 (N.. D. Tex. 2011).10 The Isaacs

                              should be granted their actual damages, statutory damages,

                              costs and reasonable attorney’s fees for enforcement of their

                              claims against VRM under TDCA. The Isaacs do allege loss

                              outside the Loan documents, and the economic loss rule is


       10
          Judge Fitzwater, in deciding Biggers v. BAC Home Loans Servicing, LP, 2011 WL
588059, 2011 U.S. Dist. LEXIS 13104 (N.. D. Tex. 2011), found that TDCA applied to
foreclosure activity. The Fifth Circuit has recently determined that it applies to mortgage loan
servicing as well as foreclosure activity specifically, Miller v. BAC Home Loans Servicing, L.P.,
726 F.3d 717 (5th Cir. 2013), and therefore The Isaacs’ claims under TDCA are sound.

BRIEF OF APPELLANTS                            21
                         inapposite.

            J.     By its own summary judgment evidence, VRM establishes that it

                   took actions prohibited by law, which were therefore wrongful, in

                   attempting to obtain possession of the Property. When taken together

                   with the Brinkley Affidavit, it is clear that the writ of possession

                   issued as to the Property, based on the judgment of possession in

                   favor of VRM, was wrongfully issued at a time when VRM now

                   claims to have had no interest whatsoever in the Property. Therefore,

                   VRM has established that it wrongfully sought eviction of The Isaacs

                   from the Property, and The Isaacs are entitled to judgment on their

                   common law claim as well as their TDCA claim.

            K.     Nothing in the VRM Motion or the Citi-MERS Motion established

                   that VRM was ever the authorized agent for Citi.



POINT OF ERROR 2. The trial court erred in granting Summary Judgment to

      Citimortgage, MERS and VRM, since the substitute substitute trustees

      putatively appointed by or for Citimortgage were each and all acting, on

      the face of the summary judgment record, without capacity at all relevant

      times, and hence all acts taken in furtherance of the invalid trustee sale are


BRIEF OF APPELLANTS                      22
       void.

       The 2013 foreclosure and Substitute Trustee’s Deed to Citi should be held invalid

because the Assignment and Appointment each were executed by a person lacking

authority, as outlined above. As set forth in the pleadings11 and in the Brinkley Affidavit

there are, under state court pleading standards, sufficient facts pleaded and established

that are not inconsistent with Appellees’ summary judgment proof, that would establish

a violation of the TDCA because of the misleading course of conduct of Citi in dealing

with the Isaacs as recognized under the even more stringent pleading federal pleading

standards in Miller v. BAC Home Loans Servicing, L.P., 726 F.3d 717, 723-724 (5th

Cir. 2013). Further, Citi was charged with knowledge of the state of the public record

in regard to the Assignment and Appointment and all subsequent predicate notices for

the 2013 trustee’s sale and beyond, and all other acts that flowed from any of the foregoing

documents. The Fifth District Court of Appeals explained in a relevant factual situation:

               In this case, the Martins cannot be considered innocent purchasers
       without notice because, although they submitted affidavit testimony stating
       they purchased the property in good faith, they are charged with knowledge
       of all facts appearing in the chain of title to the property. See Westland
       Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 908 (Tex.1982). Any
       description, recital of fact, or reference to other documents in the chain
       of title puts the purchaser on inquiry notice, and "he is bound to follow
       up this inquiry, step by step, from one discovery to another and from
       one instrument to another, until the whole series of title deeds is


       11
            District Clerk’s record, pages 7-9.

BRIEF OF APPELLANTS                               23
       exhausted and a complete knowledge of all matters referred to and
       affecting the estate is obtained." Id.

Martin v. Cadle Co., 133 S.W.3d 897, 905; 2004 Tex. App. LEXIS 4478 **16-17

(Tex.App. – Dallas 2004), emphasis supplied. Citi, MERS and VRM was charged at

all times relevant to the foreclosure and eviction processes with knowledge of the state

of the public record, including the absence of a valid Assignment or Appointment of

Substitute Trustees (and, in the case of VRM, the absence of title in VRM or its authorized

principal at the time of VRM’s critical acts, including its last effort to have a writ of

possession executed as to the Property of the Isaacs when VRM no longer had even

a superficial claim of title).

       The standard for compliance with lien instruments and applicable statutes is strict,

and even “harsh” in the terminology of our courts.12 Strict compliance requires that

       12
          The Thirteenth Court of Appeals explained, in Bonilla v. Roberson, 918 S.W.2d 17,
21 (Tex. App. – Corpus Christi, 1996) (emphasis supplied):

       The power of the trustee to sell the deed for the parties is derived wholly from the trust
       instrument. Winters v. Slover, 151 Tex. 485, 251 S.W.2d 726, 728 (1952). Because a
       power of sale under a deed of trust is a harsh method of collecting debts and of disposing
       of another's property, it can only be exercised by strict compliance with the note and
       conditions of sale. Crow v. Heath, 516 S.W.2d 225, 228 (Tex.Civ.App.--Corpus Christi
       1974, writ ref'd n.r.e.). Thus, a trustee must strictly pursue the terms of the
       instrument, the provisions of law relative to such a sale, and the details prescribed
       as to the manner of the sale. See Durkay v. Madco Oil Co., 862 S.W.2d 14, 17
       (Tex.App.--Corpus Christi 1993, writ denied); Randolph v. Citizens Nat'l Bank, 141
       S.W.2d 1030, 1032 (Tex.Civ.App.--Amarillo 1940, writ dism'd judgm't cor.).

                When exercising a power contained in a deed of trust, the trustee becomes a
       special agent for both parties, and he must act with absolute impartiality and with fairness
       to all concerned in order to achieve the objective of the trust. See Hammonds v. Holmes,

BRIEF OF APPELLANTS                            24
there be no foreclosure attempt without clearly established authority for the Assignment

or Appointment. There was no strict compliance with applicable law, since the Assignment,

Appointment and any subsequent trustee or other deed(s) were all made without authority,

of which Citi (and MERS, as to the Assignment) would have been aware since Citi and

MERS were charged with knowledge of the state of the public record at the times of

creation and execution of each such instrument.



                                   Conclusion/Prayer

      For the reasons stated above, this Court should reverse and vacate the summary

judgment of the 26th District Court that the claims of Appellants Isaac against Citi, MERS

and VRM be dismissed with prejudice, and should remand the case to the 26th District

Court for a new trial. Appellants Isaac further request that all costs of this appeal be

taxed against Appellees.




      559 S.W.2d 345, 347 (Tex.1977); First Federal Sav. & Loan Ass'n v. Sharp, 359 S.W.2d
      902, 904 (Tex.1962).

             In addition, a purchaser at a foreclosure sale obtains that title which the
      trustee has authority to convey. Durkay, 862 S.W.2d at 17.

BRIEF OF APPELLANTS                          25
                                              Respectfully submitted,

                                              /s/ Michael Brinkley
                                              _____________________________________
                                              Michael Brinkley
                                              State Bar No. 03004300
                                              BRINKLEY LAW PLLC
                                              P. O. Box 820711
                                              Fort Worth, Texas 76182-0711
                                              817.284.3535; fax 888.511.0946
                                              michael@brinkleypllc.com
                                              Attorney for Appellants


                 Certificate of Compliance for T.R.A.P. 9.4(i)(3)

       I certify that the word count indicated by my word processing software for the
portions of the foregoing brief covered by Texas Rule of Appellate Procedure 9.4(i)(1)
is 4,214.

Dated: February 2, 2015.
                                              /s/ Michael Brinkley
                                              _____________________________________
                                              Michael Brinkley




BRIEF OF APPELLANTS                      26
                               Certificate of Service

      I certify that a true and correct copy of the foregoing has been served on the
following counsel and/or pro se parties of record, by mailing in accordance with Texas
Rule of Appellate Procedure 9.5, on the date shown:

B. David L. Foster
John W. Ellis
LOCKE LORD LLP
600 Congress Avenue, Suite 2200
Austin, Texas 78701
voice 512.305.4700; fax 512.305.4800

Christopher Ferguson
LAW OFFICES OF JACK O’BOYLE
P.O. Box 815369
Dallas, Texas 75381
voice 972.247.0653, fax 972.247.0642.

Mark D. Hopkins
HOPKINS & WILLIAMS
12117 Bee Caves Road, Suite 260
Austin, Texas 78738
voice 512.600.4320, fax 512.600.4326

Dated: February 2, 2015.
                                              /s/ Michael Brinkley
                                              _____________________________________
                                              Michael Brinkley




BRIEF OF APPELLANTS                      27
                      APPENDIX 1




BRIEF OF APPELLANTS       28
432
                      APPENDIX 2




BRIEF OF APPELLANTS       30
                      CIVIL PRACTICE AND REMEDIES CODE

                   TITLE 2. TRIAL, JUDGMENT, AND APPEAL

                       SUBTITLE A. GENERAL PROVISIONS

 CHAPTER 12. LIABILITY RELATED TO A FRAUDULENT COURT RECORD OR A

FRAUDULENT LIEN OR CLAIM FILED AGAINST REAL OR PERSONAL PROPERTY



        Sec. 12.001.     DEFINITIONS.       In this chapter:

             (1)     "Court record" has the meaning assigned by Section

37.01, Penal Code.

             (2)     "Exemplary damages" has the meaning assigned by

Section 41.001.

             (2-a)     "Filing    office"     has   the   meaning   assigned      by

Section 9.102, Business & Commerce Code.

             (2-b)     "Financing statement" has the meaning assigned by

Section 9.102, Business & Commerce Code.

             (2-c)     "Inmate"    means    a    person   housed    in   a   secure

correctional facility.

             (3)   "Lien" means a claim in property for the payment of

a debt and includes a security interest.

             (4)   "Public servant" has the meaning assigned by Section

1.07, Penal Code, and includes officers and employees of the United

States.

             (5)     "Secure   correctional       facility"   has   the      meaning

assigned by Section 1.07, Penal Code.

Added by Acts 1997, 75th Leg., ch. 189, Sec. 16, eff. May 21, 1997.

 Renumbered from Civil Practice & Remedies Code Sec. 11.001 by Acts

1999, 76th Leg., ch. 62, Sec. 19.01(3), eff. Sept. 1, 1999.

Amended by:

        Acts 2007, 80th Leg., R.S., Ch. 895, Sec. 1, eff. September 1,

2007.



        Sec. 12.002.    LIABILITY.    (a)       A person may not make, present,



                                  Page -1 -
or use a document or other record with:

             (1)   knowledge that the document or other record is a

fraudulent court record or a fraudulent lien or claim against real

or personal property or an interest in real or personal property;

             (2)   intent that the document or other record be given

the same legal effect as a court record or document of a court

created by or established under the constitution or laws of this

state or the United States or another entity listed in Section

37.01, Penal Code, evidencing a valid lien or claim against real or

personal property or an interest in real or personal property;                and

             (3)   intent to cause another person to suffer:

                   (A)    physical injury;

                   (B)    financial injury;      or

                   (C)    mental anguish or emotional distress.

     (a-1)    Except as provided by Subsection (a-2), a person may

not file an abstract of a judgment or an instrument concerning real

or personal property with a court or county clerk, or a financing

statement with a filing office, if the person:

             (1)   is an inmate; or

             (2)   is    not   licensed   or   regulated   under      Title   11,

Insurance Code, and is filing on behalf of another person who the

person knows is an inmate.

     (a-2)    A person described by Subsection (a-1) may file an

abstract, instrument, or financing statement described by that

subsection    if   the    document   being     filed   includes   a   statement

indicating that:

             (1)   the person filing the document is an inmate; or

             (2)   the person is filing the document on behalf of a

person who is an inmate.

     (b)     A person who violates Subsection (a) or (a-1) is liable

to each injured person for:

             (1)   the greater of:



                                Page -2 -
                    (A)    $10,000; or

                    (B)    the actual damages caused by the violation;

              (2)   court costs;

              (3)   reasonable attorney's fees;       and

              (4)   exemplary damages in an amount determined by the

court.

        (c)   A person claiming a lien under Chapter 53, Property Code,

is not liable under this section for the making, presentation, or

use of a document or other record in connection with the assertion

of the claim unless the person acts with intent to defraud.

Added by Acts 1997, 75th Leg., ch. 189, Sec. 16, eff. May 21, 1997.

 Renumbered from Civil Practice & Remedies Code Sec. 11.002 by Acts

1999, 76th Leg., ch. 62, Sec. 19.01(3), eff. Sept. 1, 1999.

Amended by:

        Acts 2007, 80th Leg., R.S., Ch. 895, Sec. 2, eff. September 1,

2007.

        Acts 2009, 81st Leg., R.S., Ch. 1260, Sec. 1, eff. September

1, 2009.



        Sec. 12.003.      CAUSE OF ACTION.   (a)   The following persons may

bring an action to enjoin violation of this chapter or to recover

damages under this chapter:

              (1)   the attorney general;

              (2)   a district attorney;

              (3)   a criminal district attorney;

              (4)   a county attorney with felony responsibilities;

              (5)   a county attorney;

              (6)   a municipal attorney;

              (7)   in the case of a fraudulent judgment lien, the

person against whom the judgment is rendered;            and

              (8)   in the case of a fraudulent lien or claim against

real or personal property or an interest in real or personal



                                 Page -3 -
property, the obligor or debtor, or a person who owns an interest

in the real or personal property.

        (b)    Notwithstanding any other law, a person or a person

licensed or regulated by Title 11, Insurance Code (the Texas Title

Insurance Act), does not have a duty to disclose a fraudulent, as

described by Section 51.901(c), Government Code, court record,

document, or instrument purporting to create a lien or purporting

to assert a claim on real property or an interest in real property

in connection with a sale, conveyance, mortgage, or other transfer

of the real property or interest in real property.

        (c)    Notwithstanding any other law, a purported judgment lien

or document establishing or purporting to establish a judgment lien

against property in this state, that is issued or purportedly

issued    by    a   court   or   a   purported   court   other   than   a   court

established under the laws of this state or the United States, is

void and has no effect in the determination of any title or right

to the property.

Added by Acts 1997, 75th Leg., ch. 189, Sec. 16, eff. May 21, 1997.

 Renumbered from Civil Practice & Remedies Code Sec. 11.003 by Acts

1999, 76th Leg., ch. 62, Sec. 19.01(3), eff. Sept. 1, 1999.

Amended by:

        Acts 2005, 79th Leg., Ch. 728, Sec. 11.104, eff. September 1,

2005.



        Sec. 12.004.    VENUE.       An action under this chapter may be

brought in any district court in the county in which the recorded

document is recorded or in which the real property is located.

Added by Acts 1997, 75th Leg., ch. 189, Sec. 16, eff. May 21, 1997.

 Renumbered from Civil Practice & Remedies Code Sec. 11.004 by Acts

1999, 76th Leg., ch. 62, Sec. 19.01(3), eff. Sept. 1, 1999.



        Sec. 12.005.    FILING FEES.      (a)    The fee for filing an action



                                 Page -4 -
under this chapter is $15. The plaintiff must pay the fee to the

clerk of the court in which the action is filed.             Except as

provided by Subsection (b), the plaintiff may not be assessed any

other fee, cost, charge, or expense by the clerk of the court or

other public official in connection with the action.

     (b)   The fee for service of notice of an action under this

section charged to the plaintiff may not exceed:

           (1)   $20 if the notice is delivered in person; or

           (2)   the cost of postage if the service is by registered

or certified mail.

     (c)   A plaintiff who is unable to pay the filing fee and fee

for service of notice may file with the court an affidavit of

inability to pay under the Texas Rules of Civil Procedure.

     (d)   If the fee imposed under Subsection (a) is less than the

filing fee the court imposes for filing other similar actions and

the plaintiff prevails in the action, the court may order a

defendant to pay to the court the differences between the fee paid

under Subsection (a) and the filing fee the court imposes for

filing other similar actions.

Added by Acts 1997, 75th Leg., ch. 189, Sec. 16, eff. May 21, 1997.

 Renumbered from Civil Practice & Remedies Code Sec. 11.005 by Acts

1999, 76th Leg., ch. 62, Sec. 19.01(3), eff. Sept. 1, 1999.



     Sec. 12.006.    PLAINTIFF'S COSTS.    (a)    The court shall award

the plaintiff the costs of bringing the action if:

           (1)   the plaintiff prevails;    and

           (2)   the court finds that the defendant, at the time the

defendant caused the recorded document to be recorded or filed,

knew or should have known that the recorded document is fraudulent,

as described by Section 51.901(c), Government Code.

     (b)   For purposes of this section, the costs of bringing the

action include all court costs, attorney's fees, and related



                           Page -5 -
expenses of bringing the action, including investigative expenses.

Added by Acts 1997, 75th Leg., ch. 189, Sec. 16, eff. May 21, 1997.

 Renumbered from Civil Practice & Remedies Code Sec. 11.006 by Acts

1999, 76th Leg., ch. 62, Sec. 19.01(3), eff. Sept. 1, 1999.



     Sec. 12.007.   EFFECT ON OTHER LAW.   This law is cumulative of

other law under which a person may obtain judicial relief with

respect to a recorded document or other record.

Added by Acts 1997, 75th Leg., ch. 189, Sec. 16, eff. May 21, 1997.

 Renumbered from Civil Practice & Remedies Code Sec. 11.007 by Acts

1999, 76th Leg., ch. 62, Sec. 19.01(3), eff. Sept. 1, 1999.




                          Page -6 -
FINANCE CODE CHAPTER 392. DEBT COLLECTION                  http://www.statutes.legis.state.tx.us/Docs/FI/htm/FI.392.htm




                                            FINANCE CODE

                   TITLE 5. PROTECTION OF CONSUMERS OF FINANCIAL SERVICES

                                   CHAPTER 392. DEBT COLLECTION

                                 SUBCHAPTER A. GENERAL PROVISIONS

              Sec. 392.001. DEFINITIONS. In this chapter:
                  (1) "Consumer" means an individual who has a consumer debt.
                   (2) "Consumer debt" means an obligation, or an alleged
          obligation, primarily for personal, family, or household purposes and
          arising from a transaction or alleged transaction.
                   (3) "Creditor" means a party, other than a consumer, to a
          transaction or alleged transaction involving one or more consumers.
                   (4) "Credit bureau" means a person who, for compensation,
          gathers, records, and disseminates information relating to the
          creditworthiness, financial responsibility, and paying habits of, and
          similar information regarding, a person for the purpose of furnishing
          that information to another person.
                   (5) "Debt collection" means an action, conduct, or practice in
          collecting, or in soliciting for collection, consumer debts that are due
          or alleged to be due a creditor.
                   (6) "Debt collector" means a person who directly or indirectly
          engages in debt collection and includes a person who sells or offers to
          sell forms represented to be a collection system, device, or scheme
          intended to be used to collect consumer debts.
                   (7) "Third-party debt collector" means a debt collector, as
          defined by 15 U.S.C. Section 1692a(6), but does not include an attorney
          collecting a debt as an attorney on behalf of and in the name of a
          client unless the attorney has nonattorney employees who:
                       (A) are regularly engaged to solicit debts for
          collection;   or
                        (B)   regularly make contact with debtors for the purpose of
          collection or adjustment of debts.

          Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997. Amended by
          Acts 1999, 76th Leg., ch. 62, Sec. 7.42, eff. Sept. 1, 1999.


                                     SUBCHAPTER B. SURETY BOND


1 of 10                                                                                           8/18/2014 11:08 PM
FINANCE CODE CHAPTER 392. DEBT COLLECTION                   http://www.statutes.legis.state.tx.us/Docs/FI/htm/FI.392.htm




               Sec. 392.101. BOND REQUIREMENT. (a) A third-party debt collector
          or credit bureau may not engage in debt collection unless the
          third-party debt collector or credit bureau has obtained a surety bond
          issued by a surety company authorized to do business in this state as
          prescribed by this section.       A copy of the bond must be filed with the
          secretary of state.
                (b)    The bond must be in favor of:
                      (1) any person who is damaged by a violation of this chapter;
          and
                      (2)   this state for the benefit of any person who is damaged by
          a violation of this chapter.
               (c) The bond must be in the amount of $10,000.

          Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.


                Sec. 392.102.    CLAIM AGAINST BOND.   A person who claims against a
          bond for a violation of this chapter may maintain an action against the
          third-party debt collector or credit bureau and against the surety. The
          aggregate liability of the surety to all persons damaged by a violation
          of this chapter may not exceed the amount of the bond.

          Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.


            SUBCHAPTER C. INFORMATION IN FILES OF CREDIT BUREAU OR DEBT COLLECTOR

               Sec. 392.201. REPORT TO CONSUMER. Not later than the 45th day
          after the date of the request, a credit bureau shall provide to a person
          in its registry a copy of all information contained in its files
          concerning that person.

          Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.


                Sec. 392.202.    CORRECTION OF THIRD-PARTY DEBT COLLECTOR'S OR CREDIT
          BUREAU'S FILES. (a) An individual who disputes the accuracy of an item
          that is in a third-party debt collector's or credit bureau's file on the
          individual and that relates to a debt being collected by the third-party
          debt collector may notify in writing the third-party debt collector of
          the inaccuracy. The third-party debt collector shall make a written
          record of the dispute. If the third-party debt collector does not
          report information related to the dispute to a credit bureau, the


2 of 10                                                                                            8/18/2014 11:08 PM
FINANCE CODE CHAPTER 392. DEBT COLLECTION               http://www.statutes.legis.state.tx.us/Docs/FI/htm/FI.392.htm


          third-party debt collector shall cease collection efforts until an
          investigation of the dispute described by Subsections (b)-(e) determines
          the accurate amount of the debt, if any. If the third-party debt
          collector reports information related to the dispute to a credit bureau,
          the reporting third-party debt collector shall initiate an investigation
          of the dispute described by Subsections (b)-(e) and shall cease
          collection efforts until the investigation determines the accurate
          amount of the debt, if any. This section does not affect the
          application of Chapter 20, Business & Commerce Code, to a third-party
          debt collector subject to that chapter.
               (b) Not later than the 30th day after the date a notice of
          inaccuracy is received, a third-party debt collector who initiates an
          investigation shall send a written statement to the individual:
                   (1) denying the inaccuracy;
                   (2)   admitting the inaccuracy; or
                   (3)   stating that the third-party debt collector has not had
          sufficient time to complete an investigation of the inaccuracy.
               (c) If the third-party debt collector admits that the item is
          inaccurate under Subsection (b), the third-party debt collector shall:
                   (1) not later than the fifth business day after the date of
          the admission, correct the item in the relevant file; and
                   (2) immediately cease collection efforts related to the
          portion of the debt that was found to be inaccurate and on correction of
          the item send, to each person who has previously received a report from
          the third-party debt collector containing the inaccurate information,
          notice of the inaccuracy and a copy of an accurate report.
               (d) If the third-party debt collector states that there has not
          been sufficient time to complete an investigation, the third-party debt
          collector shall immediately:
                   (1) change the item in the relevant file as requested by the
          individual;
                   (2)   send to each person who previously received the report
          containing the information a notice that is equivalent to a notice under
          Subsection (c) and a copy of the changed report; and
                  (3) cease collection efforts.
              (e) On completion by the third-party debt collector of the
          investigation, the third-party debt collector shall inform the
          individual of the determination of whether the item is accurate or
          inaccurate. If the third-party debt collector determines that the
          information was accurate, the third-party debt collector may again


3 of 10                                                                                        8/18/2014 11:08 PM
FINANCE CODE CHAPTER 392. DEBT COLLECTION                http://www.statutes.legis.state.tx.us/Docs/FI/htm/FI.392.htm


          report that information and resume collection efforts.

          Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.              Amended by
          Acts 2003, 78th Leg., ch. 851, Sec. 1, eff. Sept. 1, 2003.


                         SUBCHAPTER D. PROHIBITED DEBT COLLECTION METHODS

               Sec. 392.301. THREATS OR COERCION. (a) In debt collection, a
          debt collector may not use threats, coercion, or attempts to coerce that
          employ any of the following practices:
                   (1) using or threatening to use violence or other criminal
          means to cause harm to a person or property of a person;
                   (2) accusing falsely or threatening to accuse falsely a person
          of fraud or any other crime;
                   (3) representing or threatening to represent to any person
          other than the consumer that a consumer is wilfully refusing to pay a
          nondisputed consumer debt when the debt is in dispute and the consumer
          has notified in writing the debt collector of the dispute;
                   (4) threatening to sell or assign to another the obligation of
          the consumer and falsely representing that the result of the sale or
          assignment would be that the consumer would lose a defense to the
          consumer debt or would be subject to illegal collection attempts;
                   (5) threatening that the debtor will be arrested for
          nonpayment of a consumer debt without proper court proceedings;
                   (6) threatening to file a charge, complaint, or criminal
          action against a debtor when the debtor has not violated a criminal law;
                   (7) threatening that nonpayment of a consumer debt will result
          in the seizure, repossession, or sale of the person's property without
          proper court proceedings; or
                  (8) threatening to take an action prohibited by law.
              (b) Subsection (a) does not prevent a debt collector from:
                   (1) informing a debtor that the debtor may be arrested after
          proper court proceedings if the debtor has violated a criminal law of
          this state;
                   (2)    threatening to institute civil lawsuits or other judicial
          proceedings to collect a consumer debt; or
                   (3) exercising or threatening to exercise a statutory or
          contractual right of seizure, repossession, or sale that does not
          require court proceedings.

          Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.


4 of 10                                                                                         8/18/2014 11:08 PM
FINANCE CODE CHAPTER 392. DEBT COLLECTION                  http://www.statutes.legis.state.tx.us/Docs/FI/htm/FI.392.htm




              Sec. 392.302.     HARASSMENT;   ABUSE.   In debt collection, a debt
          collector may not oppress, harass, or abuse a person by:
                   (1) using profane or obscene language or language intended to
          abuse unreasonably the hearer or reader;
                   (2) placing telephone calls without disclosing the name of the
          individual making the call and with the intent to annoy, harass, or
          threaten a person at the called number;
                   (3) causing a person to incur a long distance telephone toll,
          telegram fee, or other charge by a medium of communication without first
          disclosing the name of the person making the communication; or
                   (4) causing a telephone to ring repeatedly or continuously, or
          making repeated or continuous telephone calls, with the intent to harass
          a person at the called number.

          Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.


               Sec. 392.303. UNFAIR OR UNCONSCIONABLE MEANS. (a) In debt
          collection, a debt collector may not use unfair or unconscionable means
          that employ the following practices:
                   (1) seeking or obtaining a written statement or acknowledgment
          in any form that specifies that a consumer's obligation is one incurred
          for necessaries of life if the obligation was not incurred for those
          necessaries;
                   (2)   collecting or attempting to collect interest or a charge,
          fee, or expense incidental to the obligation unless the interest or
          incidental charge, fee, or expense is expressly authorized by the
          agreement creating the obligation or legally chargeable to the consumer;
          or
                   (3) collecting or attempting to collect an obligation under a
          check, draft, debit payment, or credit card payment, if:
                       (A) the check or draft was dishonored or the debit payment
          or credit card payment was refused because the check or draft was not
          drawn or the payment was not made by a person authorized to use the
          applicable account;
                       (B) the debt collector has received written notice from a
          person authorized to use the account that the check, draft, or payment
          was unauthorized; and
                       (C) the person authorized to use the account has filed a
          report concerning the unauthorized check, draft, or payment with a law


5 of 10                                                                                           8/18/2014 11:08 PM
FINANCE CODE CHAPTER 392. DEBT COLLECTION                 http://www.statutes.legis.state.tx.us/Docs/FI/htm/FI.392.htm


          enforcement agency, as defined by Article 59.01, Code of Criminal
          Procedure, and has provided the debt collector with a copy of the report.
               (b) Notwithstanding Subsection (a)(2), a creditor may charge a
          reasonable reinstatement fee as consideration for renewal of a real
          property loan or contract of sale, after default, if the additional fee
          is included in a written contract executed at the time of renewal.
               (c) Subsection (a)(3) does not prohibit a debt collector from
          collecting or attempting to collect an obligation under a check, draft,
          debit payment, or credit card payment if the debt collector has credible
          evidence, including a document, video recording, or witness statement,
          that the report filed with a law enforcement agency, as required by
          Subsection (a)(3)(C), is fraudulent and that the check, draft, or
          payment was authorized.

          Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
          Amended by:
               Acts 2005, 79th Leg., Ch. 505 (H.B. 628), Sec. 1, eff. September 1,
          2005.


               Sec. 392.304. FRAUDULENT, DECEPTIVE, OR MISLEADING
          REPRESENTATIONS. (a) Except as otherwise provided by this section, in
          debt collection or obtaining information concerning a consumer, a debt
          collector may not use a fraudulent, deceptive, or misleading
          representation that employs the following practices:
                   (1) using a name other than the:
                       (A) true business or professional name or the true
          personal or legal name of the debt collector while engaged in debt
          collection;    or
                         (B)   name appearing on the face of the credit card while
          engaged in the collection of a credit card debt;
                   (2) failing to maintain a list of all business or professional
          names known to be used or formerly used by persons collecting consumer
          debts or attempting to collect consumer debts for the debt collector;
                   (3) representing falsely that the debt collector has
          information or something of value for the consumer in order to solicit
          or discover information about the consumer;
                   (4) failing to disclose clearly in any communication with the
          debtor the name of the person to whom the debt has been assigned or is
          owed when making a demand for money;
                   (5)    in the case of a third-party debt collector, failing to


6 of 10                                                                                          8/18/2014 11:08 PM
FINANCE CODE CHAPTER 392. DEBT COLLECTION               http://www.statutes.legis.state.tx.us/Docs/FI/htm/FI.392.htm


          disclose, except in a formal pleading made in connection with a legal
          action:
                       (A) that the communication is an attempt to collect a debt
          and that any information obtained will be used for that purpose, if the
          communication is the initial written or oral communication between the
          third-party debt collector and the debtor; or
                       (B) that the communication is from a debt collector, if
          the communication is a subsequent written or oral communication between
          the third-party debt collector and the debtor;
                   (6) using a written communication that fails to indicate
          clearly the name of the debt collector and the debt collector's street
          address or post office box and telephone number if the written notice
          refers to a delinquent consumer debt;
                   (7) using a written communication that demands a response to a
          place other than the debt collector's or creditor's street address or
          post office box;
                   (8) misrepresenting the character, extent, or amount of a
          consumer debt, or misrepresenting the consumer debt's status in a
          judicial or governmental proceeding;
                   (9) representing falsely that a debt collector is vouched for,
          bonded by, or affiliated with, or is an instrumentality, agent, or
          official of, this state or an agency of federal, state, or local
          government;
                   (10)   using, distributing, or selling a written communication
          that simulates or is represented falsely to be a document authorized,
          issued, or approved by a court, an official, a governmental agency, or
          any other governmental authority or that creates a false impression
          about the communication's source, authorization, or approval;
                   (11) using a seal, insignia, or design that simulates that of
          a governmental agency;
                   (12) representing that a consumer debt may be increased by the
          addition of attorney's fees, investigation fees, service fees, or other
          charges if a written contract or statute does not authorize the
          additional fees or charges;
                   (13) representing that a consumer debt will definitely be
          increased by the addition of attorney's fees, investigation fees,
          service fees, or other charges if the award of the fees or charges is
          subject to judicial discretion;
                   (14) representing falsely the status or nature of the services
          rendered by the debt collector or the debt collector's business;


7 of 10                                                                                        8/18/2014 11:08 PM
FINANCE CODE CHAPTER 392. DEBT COLLECTION                 http://www.statutes.legis.state.tx.us/Docs/FI/htm/FI.392.htm


                   (15) using a written communication that violates the United
          States postal laws and regulations;
                   (16) using a communication that purports to be from an
          attorney or law firm if it is not;
                   (17) representing that a consumer debt is being collected by
          an attorney if it is not;
                   (18) representing that a consumer debt is being collected by
          an independent, bona fide organization engaged in the business of
          collecting past due accounts when the debt is being collected by a
          subterfuge organization under the control and direction of the person
          who is owed the debt; or
                   (19) using any other false representation or deceptive means
          to collect a debt or obtain information concerning a consumer.
               (b) Subsection (a)(4) does not apply to a person servicing or
          collecting real property first lien mortgage loans or credit card debts.
               (c) Subsection (a)(6) does not require a debt collector to
          disclose the names and addresses of employees of the debt collector.
               (d) Subsection (a)(7) does not require a response to the address
          of an employee of a debt collector.
               (e) Subsection (a)(18) does not prohibit a creditor from owning or
          operating a bona fide debt collection agency.

          Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.               Amended by
          Acts 2003, 78th Leg., ch. 851, Sec. 2, eff. Sept. 1, 2003; Acts 2003,
          78th Leg., 3rd C.S., ch. 3, Sec. 28.01, eff. Jan. 11, 2004.


              Sec. 392.305.     DECEPTIVE USE OF CREDIT BUREAU NAME.           A person may
          not use "credit bureau," "retail merchants," or "retail merchants
          association" in the person's business or trade name unless:
                   (1) the person is engaged in gathering, recording, and
          disseminating information, both favorable and unfavorable, relating to
          the creditworthiness, financial responsibility, and paying habits of,
          and similar information regarding, persons being considered for credit
          extension so that a prospective creditor can make a sound decision in
          the extension of credit; or
                   (2)    the person is a nonprofit retail trade association that:
                         (A) consists of individual members;
                       (B) qualifies as a bona fide business league as defined by
          the United States Internal Revenue Service; and
                         (C)   does not engage in the business of debt collection or


8 of 10                                                                                          8/18/2014 11:08 PM
FINANCE CODE CHAPTER 392. DEBT COLLECTION                  http://www.statutes.legis.state.tx.us/Docs/FI/htm/FI.392.htm


          credit reporting.

          Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.


              Sec. 392.306.     USE OF INDEPENDENT DEBT COLLECTOR.          A creditor may
          not use an independent debt collector if the creditor has actual
          knowledge that the independent debt collector repeatedly or continuously
          engages in acts or practices that are prohibited by this chapter.

          Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.


                 SUBCHAPTER E. DEFENSE, CRIMINAL PENALTY, AND CIVIL REMEDIES

               Sec. 392.401. BONA FIDE ERROR. A person does not violate this
          chapter if the action complained of resulted from a bona fide error that
          occurred notwithstanding the use of reasonable procedures adopted to
          avoid the error.

          Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.


               Sec. 392.402. CRIMINAL PENALTY.      (a)   A person commits an offense
          if the person violates this chapter.
               (b) An offense under this section is a misdemeanor punishable by a
          fine of not less than $100 or more than $500 for each violation.
               (c) A misdemeanor charge under this section must be filed not
          later than the first anniversary of the date of the alleged violation.

          Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.


              Sec. 392.403.     CIVIL REMEDIES.   (a)   A person may sue for:
                   (1) injunctive relief to prevent or restrain a violation of
          this chapter; and
                   (2) actual damages sustained as a result of a violation of
          this chapter.
               (b) A person who successfully maintains an action under Subsection
          (a) is entitled to attorney's fees reasonably related to the amount of
          work performed and costs.
               (c) On a finding by a court that an action under this section was
          brought in bad faith or for purposes of harassment, the court shall
          award the defendant attorney's fees reasonably related to the work



9 of 10                                                                                           8/18/2014 11:08 PM
FINANCE CODE CHAPTER 392. DEBT COLLECTION               http://www.statutes.legis.state.tx.us/Docs/FI/htm/FI.392.htm


           performed and costs.
                (d) If the attorney general reasonably believes that a person is
           violating or is about to violate this chapter, the attorney general may
           bring an action in the name of this state against the person to restrain
           or enjoin the person from violating this chapter.
                (e) A person who successfully maintains an action under this
           section for violation of Section 392.101, 392.202, or 392.301(a)(3) is
           entitled to not less than $100 for each violation of this chapter.

           Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.


                Sec. 392.404. REMEDIES UNDER OTHER LAW. (a) A violation of this
           chapter is a deceptive trade practice under Subchapter E, Chapter 17,
           Business & Commerce Code, and is actionable under that subchapter.
                (b) This chapter does not affect or alter a remedy at law or in
           equity otherwise available to a debtor, creditor, governmental entity,
           or other legal entity.

           Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.




10 of 10                                                                                       8/18/2014 11:08 PM
TEXAS PROPERTY CODE

Sec. 24.002. FORCIBLE DETAINER. (a) A person who refuses to surrender
possession of real property on demand commits a forcible detainer if the person:
(1) is a tenant or a subtenant wilfully and without force holding over after the termination
of the tenant's right of possession;
(2) is a tenant at will or by sufferance, including an occupant at the time of foreclosure of
a lien superior to the tenant's lease; or
(3) is a tenant of a person who acquired possession by forcible entry.
(b) The demand for possession must be made in writing by a person entitled to
possession of the property and must comply with the requirements for notice to vacate
under Section 24.005.

Acts 1983, 68th Leg., p. 3514, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts 1985,
69th Leg., ch. 200, Sec. 1, eff. Aug. 26, 1985; Acts 1989, 71st Leg., ch. 688, Sec. 2, eff.
Sept. 1, 1989.

Sec. 24.003. SUBSTITUTION OF PARTIES. If a tenancy for a term expires while the
tenant's suit for forcible entry is pending, the landlord may prosecute the suit in the
tenant's name for the landlord's benefit and at the landlord's expense. It is immaterial
whether the tenant received possession from the landlord or became a tenant after
obtaining possession of the property.

Acts 1983, 68th Leg., p. 3515, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts 1985,
69th Leg., ch. 891, Sec. 1, eff. Aug. 26, 1985.

Sec. 24.004. JURISDICTION; DISMISSAL. (a) Except as provided by Subsection (b),
a justice court in the precinct in which the real property is located has jurisdiction in
eviction suits. Eviction suits include forcible entry and detainer and forcible detainer
suits. A justice court has jurisdiction to issue a writ of possession under Sections
24.0054(a), (a-2), and (a-3).
(b) A justice court does not have jurisdiction in a forcible entry and detainer or forcible
detainer suit and shall dismiss the suit if the defendant files a sworn statement alleging the
suit is based on a deed executed in violation of Chapter 21, Business & Commerce Code.

Acts 1983, 68th Leg., p. 3515, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts 1985,
69th Leg., ch. 891, Sec. 1, eff. Aug. 26, 1985; Acts 1997, 75th Leg., ch. 1205, Sec. 1, eff.
Sept. 1, 1997.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 958, Sec. 1, eff. January 1, 2012.
Acts 2011, 82nd Leg., R.S., Ch. 1242, Sec. 3, eff. September 1, 2011.
Sec. 24.005. NOTICE TO VACATE PRIOR TO FILING EVICTION SUIT. (a) If the
occupant is a tenant under a written lease or oral rental agreement, the landlord must give
a tenant who defaults or holds over beyond the end of the rental term or renewal period at
least three days' written notice to vacate the premises before the landlord files a forcible
detainer suit, unless the parties have contracted for a shorter or longer notice period in a
written lease or agreement. A landlord who files a forcible detainer suit on grounds that
the tenant is holding over beyond the end of the rental term or renewal period must also
comply with the tenancy termination requirements of Section 91.001.
(b) If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at
least three days' written notice to vacate before the landlord files a forcible detainer suit
unless the parties have contracted for a shorter or longer notice period in a written lease
or agreement. If a building is purchased at a tax foreclosure sale or a trustee's foreclosure
sale under a lien superior to the tenant's lease and the tenant timely pays rent and is not
otherwise in default under the tenant's lease after foreclosure, the purchaser must give a
residential tenant of the building at least 30 days' written notice to vacate if the purchaser
chooses not to continue the lease. The tenant is considered to timely pay the rent under
this subsection if, during the month of the foreclosure sale, the tenant pays the rent for
that month to the landlord before receiving any notice that a foreclosure sale is scheduled
during the month or pays the rent for that month to the foreclosing lienholder or the
purchaser at foreclosure not later than the fifth day after the date of receipt of a written
notice of the name and address of the purchaser that requests payment. Before a
foreclosure sale, a foreclosing lienholder may give written notice to a tenant stating that a
foreclosure notice has been given to the landlord or owner of the property and specifying
the date of the foreclosure.
(c) If the occupant is a tenant of a person who acquired possession by forcible entry, the
landlord must give the person at least three days' written notice to vacate before the
landlord files a forcible detainer suit.
(d) In all situations in which the entry by the occupant was a forcible entry under Section
24.001, the person entitled to possession must give the occupant oral or written notice to
vacate before the landlord files a forcible entry and detainer suit. The notice to vacate
under this subsection may be to vacate immediately or by a specified deadline.
(e) If the lease or applicable law requires the landlord to give a tenant an opportunity to
respond to a notice of proposed eviction, a notice to vacate may not be given until the
period provided for the tenant to respond to the eviction notice has expired.
(f) The notice to vacate shall be given in person or by mail at the premises in question.
Notice in person may be by personal delivery to the tenant or any person residing at the
premises who is 16 years of age or older or personal delivery to the premises and affixing
the notice to the inside of the main entry door. Notice by mail may be by regular mail, by
registered mail, or by certified mail, return receipt requested, to the premises in question.
If the dwelling has no mailbox and has a keyless bolting device, alarm system, or
dangerous animal that prevents the landlord from entering the premises to leave the notice
to vacate on the inside of the main entry door, the landlord may securely affix the notice
on the outside of the main entry door.
(g) The notice period is calculated from the day on which the notice is delivered.
(h) A notice to vacate shall be considered a demand for possession for purposes of
Subsection (b) of Section 24.002.
(i) If before the notice to vacate is given as required by this section the landlord has given
a written notice or reminder to the tenant that rent is due and unpaid, the landlord may
include in the notice to vacate required by this section a demand that the tenant pay the
delinquent rent or vacate the premises by the date and time stated in the notice.

Acts 1983, 68th Leg., p. 3515, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts 1985,
69th Leg., ch. 891, Sec. 1, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 688, Sec. 3, eff.
Sept. 1, 1989; Acts 1997, 75th Leg., ch. 1205, Sec. 2, eff. Sept. 1, 1997.


Texas Rule of Civil Procedure 93 / Certain Pleas to be Verified

A pleading setting up any of the following matters, unless the truth of such matters appear
of record, shall be verified by affidavit.
1. That the plaintiff has not legal capacity to sue or that the defendant has not legal
capacity to be sued.
2. That the plaintiff is not entitled to recover in the capacity in which he sues, or that the
defendant is not liable in the capacity in which he is sued.
3. That there is another suit pending in this State between the same parties involving the
same claim.
4. That there is a defect of parties, plaintiff or defendant.
5. A denial of partnership as alleged in any pleading as to any party to the suit.
6. That any party alleged in any pleading to be a corporation is not incorporated as
alleged.
7. Denial of the execution by himself or by his authority of any instrument in writing,
upon which any pleading is founded, in whole or in part and charged to have been
executed by him or by his authority, and not alleged to be lost or destroyed. Where
such instrument in writing is charged to have been executed by a person then deceased,
the affidavit shall be sufficient if it states that the affiant has reason to believe and does
believe that such instrument was not executed by the decedent or by his authority. In the
absence of such a sworn plea, the instrument shall be received in evidence as fully
proved.
8. A denial of the genuineness of the indorsement or assignment of a written instrument
upon which suit is brought by an indorsee or assignee and in the absence of such a sworn
plea, the indorsement or assignment thereof shall be held as fully proved. The denial
required by this subdivision of the rule may be made upon information and belief.
9. That a written instrument upon which a pleading is founded is without consideration,
or that the consideration of the same has failed in whole or in part.
PROBATE CODE Section 489.

A durable power of attorney for a real property transaction requiring the execution and delivery
of an instrument that is to be recorded, including a release, assignment, satisfaction, mortgage,
security agreement, deed of trust, encumbrance, deed of conveyance, oil, gas, or other mineral
lease, memorandum of a lease, lien, or other claim or right to real property, shall be recorded in
the office of the county clerk of the county in which the property is located.

Added by Acts 1993, 73rd Leg., ch. 49, Sec. 1, eff. Sept. 1, 1993.




PROPERTY CODE

TITLE 5. EXEMPT PROPERTY AND LIENS

SUBTITLE B. LIENS

CHAPTER 51. PROVISIONS GENERALLY APPLICABLE TO LIENS

Sec. 51.0001. DEFINITIONS. In this chapter:

(1) "Book entry system" means a national book entry system for registering a beneficial interest
in a security instrument that acts as a nominee for the grantee, beneficiary, owner, or holder of
the security instrument and its successors and assigns.

(2) "Debtor's last known address" means:

(A) for a debt secured by the debtor's residence, the debtor's residence address unless the debtor
provided the mortgage servicer a written change of address before the date the mortgage servicer
mailed a notice required by Section 51.002; or

(B) for a debt other than a debt described by Paragraph (A), the debtor's last known address as
shown by the records of the mortgage servicer of the security instrument unless the debtor
provided the current mortgage servicer a written change of address before the date the mortgage
servicer mailed a notice required by Section 51.002.

(3) "Mortgage servicer" means the last person to whom a mortgagor has been instructed by the
current mortgagee to send payments for the debt secured by a security instrument. A mortgagee
may be the mortgage servicer.

(4) "Mortgagee" means:

(A) the grantee, beneficiary, owner, or holder of a security instrument;
(B) a book entry system; or

(C) if the security interest has been assigned of record, the last person to whom the security
interest has been assigned of record.

(5) "Mortgagor" means the grantor of a security instrument.

(6) "Security instrument" means a deed of trust, mortgage, or other contract lien on an interest in
real property.

(7) "Substitute trustee" means a person appointed by the current mortgagee or mortgage servicer
under the terms of the security instrument to exercise the power of sale.

(8) "Trustee" means a person or persons authorized to exercise the power of sale under the terms
of a security instrument in accordance with Section 51.0074.

Added by Acts 2003, 78th Leg., ch. 554, Sec. 1, eff. Jan. 1, 2004.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 903 (H.B. 2738), Sec. 1, eff. June 15, 2007.


Sec. 51.001. EFFECT ON OTHER LIENS. Except as provided by Chapter 59, this subtitle does
not affect:

(1) the right to create a lien by special contract or agreement; or

(2) a lien that is not treated in this subtitle, including a lien arising under common law, in equity,
or under another statute of this state.

Acts 1983, 68th Leg., p. 3525, ch. 576, Sec. 1, eff. Jan. 1, 1984.


Sec. 51.0011. DEFAULT ARISING FROM DELINQUENT AD VALOREM TAXES:
INSTALLMENT AGREEMENTS. (a) Notwithstanding any agreement to the contrary, a debtor
is not in default under a deed of trust or other contract lien on real property used as the debtor's
residence for the delinquent payment of ad valorem taxes if:

(1) the debtor gave notice to the mortgage servicer of the intent to enter into an installment
agreement with the taxing unit under Section 33.02, Tax Code, for the payment of the taxes at
least 10 days before the date the debtor entered into the agreement; and

(2) the property is protected from seizure and sale and a suit may not be filed to collect a
delinquent tax on the property as provided by Section 33.02(d), Tax Code.
