                                                                                    ACCEPTED
                                                                                03-14-00716-CV
                                                                                        4961709
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                           4/20/2015 6:23:29 PM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK
                         No. 03-14-00716-CV

                      In the Court of Appeals                 FILED IN
                                                       3rd COURT OF APPEALS
                               for the                     AUSTIN, TEXAS
            Third Court of Appeals District Court of Texas
                                                       4/20/2015 6:23:29 PM
                      Sitting at Austin, Texas           JEFFREY D. KYLE
                                                             Clerk


                       Janos Farkas, Appellant

                                  vs.

Wells Fargo Bank, N.A. and Brice, Vander Linden & Wernick, P.C. n/k/a
                   Buckley Madole, P.C., Appellee


               On Appeal from the 201st District Court
                      Travis County, Texas


                           Appellee’s Brief,

   Brice, Vander Linden & Wernick, P.C. n/k/a Buckley Madole, P.C.


                          Buckley Madole, P.C.
                          Sammy Hooda SBN: 24064032
                          Luke Madole SBN: 12801800
                          14841 Dallas Parkway, Suite 425
                          Dallas, Texas 75254
                          Telephone: (972) 643-6600
                          Facsimile: (972) 643-6699
                          Email: sammy.hooda@buckleymadole.com
                          Attorney for Appellee
                          Brice, Vander Linden & Wernick, P.C., n/k/a
                          Buckley Madole, P.C.

              ORAL ARGUMENT NOT REQUESTED
                         No. 03-14-00716-CV

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


                       Janos Farkas, Appellant

                                  vs.

Wells Fargo Bank, N.A. and Brice, Vander Linden & Wernick, P.C. n/k/a
                   Buckley Madole, P.C., Appellee


               On Appeal from the 201st District Court
                      Travis County, Texas


                          Appellee’s Brief,

   Brice, Vander Linden & Wernick, P.C. n/k/a Buckley Madole, P.C.


                          Buckley Madole, P.C.
                          Sammy Hooda SBN: 24064032
                          Luke Madole SBN: 12801800
                          14841 Dallas Parkway, Suite 425
                          Dallas, Texas 75254
                          Telephone: (972) 643-6600
                          Facsimile: (972) 643-6699
                          Email: sammy.hooda@buckleymadole.com
                          Attorney for Appellee
                          Brice, Vander Linden & Wernick, P.C., n/k/a
                          Buckley Madole, P.C.

              ORAL ARGUMENT NOT REQUESTED

                         BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
                                                 Case Number: 03-14-00716-CV
                                                                       Page: 1
                                         Table of Contents
Table of Contents .......................................................................................................2
Identity of the Parties and Counsel ............................................................................3
Index of Authorities ...................................................................................................4
Statement of the Case.................................................................................................6
Statement Regarding Oral Argument ........................................................................7
Issues Presented for Review ......................................................................................8
  1. Whether trial court erred in denying Frakas’ partial motion for summary
  judgment, and in granting Brice’s traditional and no-evidence motion for
  summary judgment on Farkas’ claims for violations of the Texas Debt Collection
  Act, Texas Finance Code and Chapter 12 of the Civil Practice and Remedies
  Code. .......................................................................................................................8
Statement of Facts ......................................................................................................9
Summary of the Argument.......................................................................................10
Argument and Authorities........................................................................................11
  I. Standards of Review .......................................................................................11
     A. Traditional Motion for Summary Judgment ...............................................11
     B. No-Evidence Motion for Summary Judgment ............................................11
  II. The trial court did not err in granting Brice’s traditional and no-evidence
  motion for summary judgment on Farkas’ claims for violations of the Texas Debt
  Collection Act, Texas Finance Code and Chapter 12 of the Civil Practice and
  Remedies Code. ....................................................................................................12
     A. Brice is entitled to the affirmative defense of attorney immunity as to
     Farkas’ TDCA and TFC claims. ........................................................................13
     B. Farkas’ CPRC Chapter 12 violation claims fail as a matter of law. ...........16
Conclusion and Prayer .............................................................................................19
Certificate of Compliance ........................................................................................21
Certificate of Service ...............................................................................................21


                                               BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
                                                                       Case Number: 03-14-00716-CV
                                                                                             Page: 2
                         Identity of the Parties and Counsel
(1)   Appellant                                Represented by:
      Janos Farkas                             William D. Davis
      (Plaintiff in the underlying action)     Bar No. 00796444
                                               bdavis@capital-ip.com

                                             DAVIS & ASSOCIATES
                                             P.O. Box 1093
                                             Dripping Springs, Texas 78620
                                             512-858-9910 (Telephone)
                                             512-858-2357 (Fax)

(2)   Appellee                             Represented by:
      Wells Fargo Bank, N.A.               B. David Foster
      (Defendant in the underlying action) Bar No. 24031555
                                           dfoster@lockelord.com
                                           Susan A. Kidwell
                                           Bar No. 24032626
                                           skidwell@lockelord.com

                                             LOCKE LORD, LLP
                                             600 Congress Ave. Suite 2200
                                             Austin, Texas 78701
                                             512-305-4700 (Telephone)
                                             512-305-4800 (Fax)

(3)   Appellee                               Represented by:
      Brice, Vander Linden, P.C.,            Sammy Hooda
      n/k/a Buckley Madole, P.C.             Bar No. 24064032
      (Defendant in the underlying action)   sammy.hooda@buckleymadole.com
                                             Luke Madole
                                             Bar No. 12801800
                                             luke.madole@buckleymadole.com;

                                             BUCKLEY MADOLE, P.C.
                                             14841 Dallas Parkway, Suite 425
                                             Dallas, Texas 75254
                                             972-643-6600 (Telephone)
                                             972-643-6699 (Fax)
                              BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
                                                      Case Number: 03-14-00716-CV
                                                                            Page: 3
                                                     Index of Authorities
Cases

Butler v. Lilly, 533 S.W.2d 130, 131-34 (Tex. Civ. App.—Houston [1st Dist.]
  1976, writ dism’d).................................................................................................12
Campbell v. Mortgage Electronic Registration Systems, Inc., et al., 2012 WL
  1839357 (Tex. App.—Austin 2012) .....................................................................13
Dolcefino v. Randolph, 195 S.W.3d 906, 917 (Tex. App.—Houston [14th Dist.]
  2000, pet. denied)..................................................................................................11
Helena Chem. Co. v. Wilkins, 47 S.W3d 48, 493 (Tex. 2001) ................................17
Iqbal v. Bank of America, N.A., et al., 559 Fed. Appx. 363 (5th Cir. 2014) ...........13
Kiggundu v. Mortg. Elec. Registration Sys., Inc., 2011 WL 2606359, at *7 (S.D.
  Tex. June 30, 2011)...............................................................................................16
Kruegel v. Murphy, 126 S.W. 343 (Tex. Civ. App.—Dallas 1910, writ ref’d) .......12
Marsh v. JPMorgan Chase Bank, N.A., 888 F. Supp. 2d 805, 812-14 (W.D. Tex.
  2012) .....................................................................................................................15
Martin v. Trevino, 578 S.W.2d 763, 771 (Tex. Civ. App.—Corpus Christi 1978,
  writ ref’d n.r.e.) .....................................................................................................12
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985) .........................10
Purported Lien or Claim Against Bond v. Barrett Daffin Frappier Turner & Engel,
  LLP, No. G-12-188, 2013 WL 1619691, at *11 (S.D. Tex. Mar. 22, 2013) ........18
Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995) ............10
Rojas v. Wells Fargo Bank, N.A., et al., 2014 WL 2547770 (5th Cir. June 6, 2014)
  ...............................................................................................................................13
Taco Bell Corp. v. Cracken, 939 F.Supp. 528, 532 (N.D. Tex. 1996) ....................12
Statutes

TEX. CIV. PRAC. & REM. CODE § 12.002..................................................................19
TEX. CIV. PRAC. & REM. CODE § 12.002(a) .............................................................17
Rules

TEX. R. CIV. P. 166a(c).............................................................................................11
TEX. R. CIV. P. 166a(i) .............................................................................................11
TEX. R. CIV. P. 736.1(d).................................................................................................................... 17

                                                     BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
                                                                             Case Number: 03-14-00716-CV
                                                                                                   Page: 4
Constitutional Provisions

Tex. Const. Art. XVI § 50(r)....................................................................................18
Legislative History

House Comm. On Criminal Jurisprudence, Bill Analysis, Tex. H.B. 1185, 75th
  Leg., R.S. (1997) ...................................................................................................18
Senate Jurisprudence Committee, Bill Analysis, Tex. H.B. 1185, 75th Leg., R.S.
  (1997) ....................................................................................................................18




                                               BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
                                                                       Case Number: 03-14-00716-CV
                                                                                             Page: 5
                               Statement of the Case

      Brice, Vander Linden & Wernick, P.C., n/k/a Buckley Madole, P.C. (“Brice”),

is a law firm hired to assist banks with the foreclosure process. In this case, Brice

was retained by Wells Fargo Bank, N.A. (“Wells Fargo”) to assist in the foreclosure

of 6315 Farmdale Lane, Austin, Texas 78749 (“Property”). Appellant, Janos Farkas’

(“Farkas”) had failed pay his residential mortgage as contractually agreed. In

discharging its duties as Wells Fargo’s attorney, Brice sent Farkas notices advising

of the default on his residential mortgage and, ultimately, Brice filed an expedited

foreclosure proceeding under Rule 736 of the Texas Rules of Civil Procedure on

behalf of Wells Fargo.

      The trial court rightly granted Brice’s traditional and no-evidence motion for

summary judgment and rightly denied Farkas’ partial motion for summary

judgment. Below, Farkas failed to raise a genuine issue of material fact or present

more than a scintilla of evidence in support of his claims against Brice. Furthermore,

Brice asserted the affirmative defense of attorney immunity. Texas law is clear –

attorneys are immune from claims like those asserted by Farkas, and must remain

immune in the interest of orderly administration of the civil justice system. Thus,

Brice now submits its Appellee’s Brief in support of trials court’s judgment granting

its motion for summary judgment against all of Farkas’ claims.


                                BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
                                                        Case Number: 03-14-00716-CV
                                                                              Page: 6
                      Statement Regarding Oral Argument

      Appellee, Brice, Vander Linden & Wernick, P.C., n/k/a Buckley Madole,

P.C., does not request oral argument in this matter.




                               BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
                                                       Case Number: 03-14-00716-CV
                                                                             Page: 7
                         Issues Presented for Review

      1.    Whether trial court erred in denying Frakas’ partial motion for

summary judgment, and in granting Brice’s traditional and no-evidence motion for

summary judgment on Farkas’ claims for violations of the Texas Debt Collection

Act, Texas Finance Code and Chapter 12 of the Civil Practice and Remedies Code.




                             BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
                                                     Case Number: 03-14-00716-CV
                                                                           Page: 8
                                 Statement of Facts

      On January 11, 2007, Farkas executed a Wells Fargo Home Equity Account

Agreement and Disclosure Statement (“Account Agreement”) and a Texas Deed of

Trust (the “Deed of Trust”) securing a home equity line of credit of $103,441.00.

[CR 47-61, 70-83] The Account Agreement and Deed of Trust will collectively be

referred to as the “Loan.”

      Farkas subsequently defaulted on the Loan in September 2010, and Brice,

acting as foreclosure counsel on behalf of Wells Fargo sent a Notice of Default and

Intention to Accelerate to Farkas on April 21, 2011. [87-88] Farkas failed to cure the

default, and Brice then sent Farkas a notice on June 23, 2011 that the debt was being

accelerated. [CR 90-91] On September 15, 2011, Brice sent Farkas notice of its

application for an order allowing foreclosure. [CR 92-149] The Rule 736 proceeding

filed regarding the Property was subsequently abated and dismissed by operation of

law when Farkas filed an independent lawsuit on December 5, 2011, which is the

subject of this appeal. TEX. R. CIV. P. 736.11(c).

      Farkas does not dispute that he is in default. Instead, Farkas challenges Wells

Fargo’s ability to foreclose and alleges Brice violated the Texas Debt Collection Act

(“TDCA”), Texas Finance Code (“TFC”) § 382.001 et seq., and Chapter 12 of the

Civil Practice and Remedies Code (“CPRC”). [CR 9-12] The trial court did not err

because Brice was entitled to summary judgment on all of Farkas’ claims.
                                BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
                                                        Case Number: 03-14-00716-CV
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                            Summary of the Argument

      The trial court did not err in granting Brice’s motion for summary judgment

while denying Farkas’ motion for partial summary judgment. In its motion for

traditional and no-evidence summary judgment Brice successfully disproved an

element of Farkas’ causes of action and/or specifically (and successfully) challenged

the evidentiary support for an element of Farkas’ claims. The summary judgment

evidence conclusively established Brice’s affirmative defense of attorney immunity

on all of Farkas’ claims demonstrating that all actions taken by Brice were during

the course of its representation of Wells Fargo and solely in its capacity as legal

counsel for Wells Fargo in furtherance of protecting Wells Fargo’s interest in the

Property at issue herein.




                               BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
                                                       Case Number: 03-14-00716-CV
                                                                            Page: 10
                            Argument and Authorities

      Fakas’ brief as to Appellee Brice, focuses on Brice’s inability to assert

attorney immunity as an affirmative defense against the claims alleged by Farkas.

Thus, Brice’s brief is limited in response to it being entitled to the affirmative

defense of attorney immunity on all of Farkas’ claims.


I.    Standards of Review

      A.     Traditional Motion for Summary Judgment

      A party who moves for traditional summary judgment must establish that no

genuine issue of material fact exists and that the movant is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d

546, 548 (Tex. 1985). If the movant seeks summary judgment on a claim for which

movant does not bear the burden of proof, the movant may meet its burden by either

conclusively negating at least one essential element of the respondent’s claim or by

pleading and conclusively establishing each element of an affirmative defense to the

claim. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).


      B.     No-Evidence Motion for Summary Judgment

      A party may move for summary judgment “on the ground that there is no

evidence of one or more essential elements of a claim or defense on which the

adverse party would have the burden of proof at trial.” TEX. R. CIV. P. 166a(i). A no-

                                BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
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evidence motion for summary judgment must specifically state the elements for

which there is no evidence. Id. “The court must grant the motion unless the

respondent produces summary judgment evidence raising a genuine issue of material

fact.” Id. Any such evidence must be competent. Dolcefino v. Randolph, 195 S.W.3d

906, 917 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).


II.   The trial court did not err in granting Brice’s traditional and no-
evidence motion for summary judgment on Farkas’ claims for violations of
the Texas Debt Collection Act, Texas Finance Code and Chapter 12 of the
Civil Practice and Remedies Code.

      Farkas’ asserted claims against Brice for violations of the Texas Debt

Collection Act (“TDCA”), Texas Finance Code (“TFC”) § 382.001 et seq., and

Chapter 12 of the Civil Practice and Remedies Code (“CPRC”), relying entirely on

one or more of the following allegations: 1) various notices incorrectly name Wells

Fargo Home Equity as either current mortgagee or mortgage servicer and there is no

evidence in the property records of a transfer from Wells Fargo Bank, N.A. to Wells

Fargo Home Equity; 2) the notice of default and acceleration reference the wrong

loan number and therefore are ineffective; 3) various notices improperly refer to a

potential non-judicial foreclosure of Farkas’ home equity loan; and 4) various

notices misstate the amount of the debt. [CR 4-12]




                              BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
                                                      Case Number: 03-14-00716-CV
                                                                           Page: 12
      A.     Brice is entitled to the affirmative defense of attorney immunity as
             to Farkas’ TDCA and TFC claims.

      In general, attorneys are immune from suits by their client’s adversaries for

conduct undertaken in their capacity as attorneys. See, e.g., Butler v. Lilly, 533

S.W.2d 130, 131-34 (Tex. Civ. App.—Houston [1st Dist.] 1976, writ dism’d) (an

attorney enjoys “qualified immunity,” with respect to non-clients, for action taken

in connection with representing a client in adversarial circumstances). Based on

overriding public policy, Texas courts have consistently held that an opposing party

“does not have a right of recover, under any cause of action, against another attorney

arising from his discharge of his duties in representing a party.” See Taco Bell Corp.

v. Cracken, 939 F.Supp. 528, 532 (N.D. Tex. 1996). Attorneys have an absolute right

to “practice their profession, to advise their clients and interpose any defense or

supposed defense, without making themselves liable for damages.” See Kruegel v.

Murphy, 126 S.W. 343 (Tex. Civ. App.—Dallas 1910, writ ref’d). The courts have

also held that attorney immunity applies whether the attorney is providing his serves

within the context of litigation, or simply in a business transaction; the immunity

extends to non-litigation conduct as well as litigation conduct. See Martin v. Trevino,

578 S.W.2d 763, 771 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.). Texas

law is clear – attorneys are immune from claims like Plaintiff’s and must remain

immune in the interest of orderly administration of the civil justice system.

                                BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
                                                        Case Number: 03-14-00716-CV
                                                                             Page: 13
      Farkas argument that Brice is not entitled to attorney immunity is premised

on the fact that Brice is not an “attorney-at-law” and no attorney has been named as

a defendant. Farkas further claims that qualified immunity is only applicable for

attorneys in litigation, and the Brice’s conduct complained of relates to actions

outside of litigation. However, Texas law holds opposite of both of these theories

and as such these theories fail as a matter of law. There are three leading cases on

point that have developed the attorney immunity defense in the foreclosure context.

See Rojas v. Wells Fargo Bank, N.A., et al., 2014 WL 2547770 (5th Cir. June 6,

2014); Iqbal v. Bank of America, N.A., et al., 559 Fed. Appx. 363 (5th Cir. 2014);

Campbell v. Mortgage Electronic Registration Systems, Inc., et al., 2012 WL

1839357 (Tex. App.—Austin 2012).

      All three of these cases arose from foreclosure proceedings being pursued by

banks against homeowners that were in default under the terms of their mortgages.

The banks retained legal counsel to assist them in pursuing their rights to foreclose

and within that process a lawsuit was filed naming numerous parties, including the

attorneys and/or the law firms representing the banks. In all three cases the courts

reached the conclusion that the attorneys and law firms representing the banks during

the foreclosure process were protected by attorney immunity from the plaintiffs’

claims. See Iqbal, 559 Fed. Appx. at 365 (“they [plaintiffs] contend their claims

against BDFTE [law firm] were viable because BDFTE [law firm] did not qualify
                               BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
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for attorney immunity. We disagree. BDFTE [law firm] was retained to assist in the

foreclosure, and the action complained of by the Iqbals [plaintiffs] are within the

scope of their [law firm] representation. The Iqbals [plaintiffs] argue that attorney

immunity applies only in the ligiation context, but that stance is not in line with

Texas law”); Rojas, 2014 WL 2547770 at *2 (“attorneys are generally immune from

suits brought under Texas law against them by their adversaries if the action arises

out of the duties involved in representing a client. We have previously held that

BDFTE [law firm] has immunity for its acts as foreclosure counsel”)

      Similarly, Brice is entitled to attorney immunity against all of the claims

asserted by Farkas, because all conduct complained of was performed by Brice

during the course of their representation of Wells Fargo and solely in its capacity as

legal counsel for Wells Fargo in furtherance of protecting Wells Fargo’s interest in

the Property at issue. Iqbal, 559 Fed. Appx. at 365 (5th Cir. 2014) (citing, Campbell,

No. 03-11-00429-CV, 2012 WL 1839357, at *5-6 (Tex. App.—Austin, May 18,

2012) (affirming dismissal on grounds of attorney immunity in wrongful foreclosure

case against attorneys retained by Wells Fargo to assist in foreclosure)). Brice was

retained by Wells Fargo to assist in the foreclosure of the Property. The only

communication Brice had with Farkas was in its capacity as “legal counsel for Wells

Fargo in an adverse relationship with Plaintiff.” [CR 352-353] The actions Farkas

complains of herein were within the scope of Brice’s representation of Wells Fargo
                                BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
                                                        Case Number: 03-14-00716-CV
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in the foreclosure proceeding against the Property. Therefore, under Texas law Brice

is immune from suits brought against it by its clients’ adversaries (i.e., Farkas) if the

action arises out of the duties involved in representing a client. Rojas, 571 Fed.

Appx. at 278 (5th Cir. 2014) (“We have previously held that BDFTE [a law firm

defendant] has immunity for its acts as foreclosure counsel”). Thus, Farkas’ claims

against Brice for violations of the TDCA and TFC § 382.001 et seq., fail as a matter

of law.


      B.     Farkas’ CPRC Chapter 12 violation claims fail as a matter of law.

      Frakas’ claims that the notices and correspondences sent by Brice on behalf

of Wells Fargo violates CPRC Chapter 12 also fails as a matter of law because the

notices and correspondence: 1) do not create a lien or claim against real property;

and 2) were never recorded. [CR 10-12]

      First, section 12.002 of the Texas Civil Practice and Remedies Code only

applies to documents which create a fraudulent lien or claim, not to documents

pertaining to when, where, how, or by whom a valid lien may be enforced. See Marsh

v. JPMorgan Chase Bank, N.A., 888 F. Supp. 2d 805, 812-14 (W.D. Tex. 2012).

Under Chapter 12, a person “may not make, present, or use a document” with

knowledge that it is a “fraudulent lien or claim against real or personal property or

[against] an interest in real or personal property,” and with intent that it “be given


                                 BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
                                                         Case Number: 03-14-00716-CV
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the same legal effect as . . . a valid lien or claim.” TEX. CIV. PRAC. & REM. CODE §

12.002(a). A necessary element of Farkas’ section 12.002 claim, therefore, is that

the document alleged to be fraudulent is (or purports to be) a “lien or claim.”

      Though, Farkas’ brief does not expressly state the actions taken by Brice in

violation of CPRC 12, Farkas does insinuate (and has argued in the summary

judgment evidence included in the record) that Brice’s filing of the Rule 736

application seeking an order to allow foreclosure violated CPRC 12. Brice, on behalf

of Wells Fargo, sent Plaintiff notices and correspondence related to the default on

the Loan. Thereafter, Brice, on behalf of Wells Fargo, filed a Rule 736 application

and included the statutory notices that were sent to the Farkas as required by the

rules. See TEX. R. CIV. P. 736.1(d). Thus, the notices and correspondence sent herein

are, at best, documents relating to the enforcement of a valid lien and do not

themselves create a lien or claim against real property. See Kiggundu v. Mortg. Elec.

Registration Sys., Inc., 2011 WL 2606359, at *7 (S.D. Tex. June 30, 2011)

(documents used to foreclose on real property are not actionable under section

12.002 if the underlying note and deed of trust are valid).

      Farkas would have this Court believe that filing a proceeding required under

the Texas Constitution and provided for by the Texas Rules of Civil Procedure is a

violation of CPRC 12. If this is the rule then every Rule 736 application that is filed

can be abated by filing an independent lawsuit alleging CPRC 12 violations. Surely,
                                BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
                                                        Case Number: 03-14-00716-CV
                                                                             Page: 17
this was not the intent of the Texas Legislator and the Texas Supreme Court, and

surely that is not the plain meaning of CPRC 12. Under Texas rules of statutory

construction, the Court “must construe statutes as written and, if possible, ascertain

legislative intent from the statute’s language. Helena Chem. Co. v. Wilkins, 47

S.W3d 48, 493 (Tex. 2001).

      The legislative history provides that the purpose of this section was to “create

a private cause of action against a person who files fraudulent judgment liens or

fraudulent documents purporting to create a lien or claim against real or personal

property in favor of a person aggrieved by the filing.” House Comm. On Criminal

Jurisprudence, Bill Analysis, Tex. H.B. 1185, 75th Leg., R.S. (1997) (emphasis

added); see also Senate Jurisprudence Committee, Bill Analysis, Tex. H.B. 1185,

75th Leg., R.S. (1997).

      The filing of the Rule 736 application is contrary to the plain meaning and the

legislative intent of CPRC 12. The Rule 736 application is filed pursuant to the rules

promulgated by the Texas Supreme Court, which power is derived from the Texas

Constitution. See Tex. Const. Art. XVI § 50(r). Its purpose is to enforce, not create,

the lien. It is unimaginable that the Texas Legislators and the Texas Supreme Court

were oblivious to the fact that creating Rule 736 will allow every application to be

in violation of CPRC 12. The 736 application filed herein was filed to obtain a court

order required to proceed with a non-judicial foreclosure sale against Plaintiff’s real
                                BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
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property. See Marsh, 888 F.Supp.2d at 813 (W.D. Tex. 2012) (“the Court concludes

in order to state a fraudulent lien claim under Section 12.002, a party must allege the

challenged instrument purported to create a lien or claim against property”). Thus, it

is absurd to purpose that by following the rules, Brice subjected itself to liability for

violation of CPRC 12.

      Lastly, Farkas’ fraudulent lien claim fails because Brice did not file nor record

either of the documents at issue; rather, they were simply mailed to Farkas. [CR 4-

8, 10-12] This is fatal to a section 12.002 claim because Chapter 12 (which governs

"Liability Related to a Fraudulent Court Record or a Fraudulent Lien or Claim Filed

Against Real or Personal Property") only applies to documents that are filed or

recorded in the public property records. See generally TEX. CIV. PRAC. & REM. CODE

§ 12.002; see also Purported Lien or Claim Against Bond v. Barrett Daffin Frappier

Turner & Engel, LLP, No. G-12-188, 2013 WL 1619691, at *11 (S.D. Tex. Mar. 22,

2013) ("Section 12.002 prohibits a person from filing fraudulent documents under

certain circumstances. . . .") (emphasis added).


                               Conclusion and Prayer

      As shown above the trial court did not err in granting Brice’s traditional and

no-evidence motion for summary judgment. Farkas has not shown that he has

evidence to support all of the elements on any of his cause of action, Farkas did not


                                 BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
                                                         Case Number: 03-14-00716-CV
                                                                              Page: 19
produce summary judgment evidence that raised a genuine issue of material fact,

and Brice is entitled to the affirmative defense of attorney immunity as a matter of

law on all of Farkas’ claims.

      Appellee, Brice, Vander Linden & Wernick, P.C., n/k/a Buckley Madole,

P.C., prays that this Honorable Court affirm the judgment of the trial trail court

rendered in its favor on all of Farkas’ claims, that all costs of the appeal be taxed

against Farkas, and for such other relief, general and special, legal and equitable, to

which it may be justly entitled.



                                   Respectfully submitted,


                                   /s/ Sammy Hooda
                                   Sammy Hooda SBN: 24064032
                                   Luke Madole SBN: 12801800

                                   Buckley Madole, P.C.
                                   14841 Dallas Parkway, Suite 425
                                   Dallas, Texas 752542
                                   Telephone: (972) 643-6600
                                   Facsimile: (972) 643-6699
                                   Email:sammy.hooda@buckleymadole.com

                                   Attorney for Appellee
                                   Brice, Vander Linden & Wernick, P.C., f/k/a
                                   Buckley Madole, P.C.




                                   BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
                                                           Case Number: 03-14-00716-CV
                                                                                Page: 20
                            Certificate of Compliance

      I certify that the foregoing Brief of Appellee Brice, Vander Linden &
Wernick, P.C. n/k/a Buckley Madole, P.C. contains 2,682 words (excluding the
sections expected under Texas Rule of Appellate Procedure 9.4(i)(1)).


                               Certificate of Service

      I certify that a true and correct copy of the foregoing has been served on the
following counsel of record, in accordance with Texas Rule of Appellate
Procedure 9.5, on this 17th day of April, 2015.


VIA Electronic Service
Bill Davis
Davis & Associates
P.O. Box 1093
Dripping Springs, Texas 78620
bdavis@capital-ip.com
ATTORNEY FOR APPELLANT
JANOS FARKAS


VIA Electronic Service
Dave Foster
Locke Lord, LLP
600 Congress Avenue, Suite 2200
Austin, Texas 78701
dfoster@lockelord.com
ATTORNEY FOR APPELLEE
WELLS FARGO BANK, N.A.



                                       /s/ Sammy Hooda
                                       Sammy Hooda


                               BRICE, VANDER LINDEN & WERNICK, P.C, APPELLEE’S BRIEF
                                                       Case Number: 03-14-00716-CV
                                                                            Page: 21
