                                                                                      ACCEPTED
                                                                                  04-15-00306-CV
                                                                      FOURTH COURT OF APPEALS
                                                                           SAN ANTONIO, TEXAS
                                                                             8/28/2015 4:18:21 PM
                                                                                   KEITH HOTTLE
                                                                                           CLERK




           No. 04-15-00306-CV                                   FILED IN
                                                         4th COURT OF APPEALS
                                                          SAN ANTONIO, TEXAS
                                                         8/28/2015 4:18:21 PM
                                                           KEITH E. HOTTLE
                       IN THE COURT OF APPEALS                   Clerk
                  FOR THE FOURTH DISTRICT OF TEXAS
                            AT SAN ANTONIO
         _________________________________________________
         CYNTHIA L. BARKMAN and CHARLES N. BARKMAN
                               Appellants,
                                   v.
                  USAA FEDERAL SAVINGS BANK,
                                Appellee.


     On Appeal from the County Court at Law No. 3, Bexar County, Texas
                       Trial Court No. 2015CV01936
                     Honorable Jason Wolff, Presiding


       USAA FEDERAL SAVINGS BANK’S MOTION FOR SANCTIONS


        Selim H. Taherzadeh                    Jeremiah B. Hayes
         Taherzadeh, PLLC                     Taherzadeh, PLLC
       State Bar No. 24046944               State Bar No. 24048532
          st@taherzlaw.com                    jh@taherzlaw.com
      5001 Spring Valley Road,             5001 Spring Valley Road,
             Suite 1020W                          Suite 1020W
          Dallas, TX 75244                     Dallas, TX 75244
         Tel. (469) 729-6800                  Tel. (469) 729-6800


                        ATTORNEYS FOR APPELLANT

                       ORAL ARGUMENT REQUESTED

August 28, 2015
                                     NO. 04-15-00306-CV

CHARLES N. BARKMAN, JR. and                     §   IN THE COURT OF APPEALS
CYNTHIA L. BARKMAN,                             §
                                                §
       Appellant,                               §
                                                §
v.                                              §
                                                §
USAA FEDERAL SAVINGS BANK,                      §
                                                §   FOURTH COURT OF APPEALS
       Appellee.                                §   DISTRICT

            USAA FEDERAL SAVINGS BANK’S MOTION FOR SANCTIONS

TO THE HONORABLE JUDGE OF SAID COURT:

       Comes now USAA Federal Savings Bank (“Appellee”) in the above-entitled and

numbered cause, and files this its Motion for Sanctions pursuant to Texas Rules of Appellate

Procedure § 45 and shows the following:

       I.      SUMMARY

       Appellants reside at 9408 Fernglen Drive, San Antonio, Texas 78240, despite their failure

to make the regular monthly payments agreed to between the Appellants and Appellee under a

note and deed of trust that ultimately led to a foreclosure. Appellee has now been forced into

four separate State District Court actions, two Bankruptcy cases, a Justice Court case, a County

Court at Law case, and now the Court of Appeals. Despite the now nine separate courts, at no

point in time have Appellants shown the ability or a willingness to make the agreed payments.

In fact, Appellants specifically disclaimed any interest in the property at issue in the United

States Bankruptcy Court despite the filing of this additional lawsuit to stop a valid foreclosure.

This lawsuit is groundless, brought in bad faith, and filed for the sole purpose of delay and

harassment against Appellee.




MOTION FOR SANCTIONS                                                                            3
       II.     FACTS

       A. The Parties’ Agreement

       On September 8, 2006, Appellants Charles N. Barkman and Cynthia L. Barkman (“the

Barkmans”) executed a 15-year Texas Home Equity Note (“Note”) in which they agreed to repay

$120,299.28 to Appellee USAA Federal Savings Bank (“USAA”) in monthly installments of

$1,082.31, with the first payment taking place in October of 2006. See Exhibit A. The Barkmans

secured the payment of the Note with the real property commonly known as 9408 Fernglen

Drive, San Antonio, Texas 78240 (“Property). The Barkmans executed a Deed of Trust in which

they agreed to repay the amount owed to USAA in accordance with the Note and used the property

as collateral for their repayment. See Exhibit B. Under the Deed of Trust, the Barkmans agreed that

USAA “may accelerate the Note and foreclose [the] Security Instrument in a manner provided by

law if [the Barkmans are] in default.” See Exhibit B at ¶ 13. If USAA invoked the power of sale,

the Barkmans authorized the trustee under the Deed of Trust to sell the home to the highest bidder

for cash and agreed that USAA was allowed to purchase the home at any such sale. Id.

       B. Default by the Barkmans

       After the Barkmans fell behind on the mortgage payments, USAA petitioned for and was

granted an Order Allowing Foreclosure by the 166th District Court in Bexar County under Cause

Number 2009-CI-16202 on April 1, 2010. See Exhibit C.

       C. The Barkmans’ First Bankruptcy

       In order to avoid the foreclosure, the Barkmans filed for bankruptcy protection under

Case Number 10-51713-cag on May 3, 2010. Due to the Barkmans falling behind on their post-

petition mortgage payments, USAA filed a Motion from Relief of Stay on August 31, 2012. See

Exhibit D. The Barkmans initially denied the allegations in the Motion for Relief. See Exhibit E.




MOTION FOR SANCTIONS                                                                             4
Ultimately, an Agreed Order Modifying Stay was entered on September 24, 2012. See Exhibit F.

A Notice of Termination of Automatic Stay was filed by USAA on April 26, 2013. See Exhibit

G. Bankruptcy Case 10-51713 was ultimately dismissed on May 28, 2013 for the Barkmans’

failure to make the Chapter 13 plan payments. See Exhibit H.

       D. The Barkmans’ Second Bankruptcy and Termination of Stay

       On July 2, 2013, Cynthia Barkman filed a second bankruptcy under Case Number 13-

51785-rbk. On October 21, 2013, USAA filed a Motion for Relief from Stay in regards to the

property since the Barkmans were behind on 43 contractual payments going back to 2010. See

Exhibit I. On November 18, 2013, the court entered an Agreed Order Terminating Stay as to

both of the Barkmans. See Exhibit J. The Order was agreed to on behalf of the Barkmans by the

Barkmans’ bankruptcy attorney Magdalena Gonzales and specifically stated USAA could

proceed with the “foreclosure sale of the property.” Id.

       On March 7, 2014, Cynthia Barkman filed a Motion to Modify Confirmed Chapter 13

Plan in Case Number 13-51785. See Exhibit K. The Motion to Modify was based on the

termination of stay as to the Property. Id. Cynthia Barkman was seeking to lower her monthly

plan payments by excluding USAA and Bexar County (Tax District). Id. On April 2, 2014,

Cynthia Barkman filed an Amended Motion to Modify. See Exhibit L. Once again, the Motion

to Modify was based on the termination of stay as to the Property. Id. Cynthia Barkman was

seeking to lower her monthly plan payments by excluding USAA and Bexar County (Tax

District) and now Propel Financial Services, another lienholder on the Property. Id. On April 9,

2014, another Amended Motion to Modify Plan was filed. See Exhibit M. Once again, the

Motion to Modify was based on the Agreed Order Terminating the Stay. Id. On April 17, 2014,

Judge King signed an Order granting the modification. See Exhibit N. Specifically, the Order




MOTION FOR SANCTIONS                                                                          5
allowed the debtor to “surrender the home owed to USAA Federal Savings Bank” and allow

Cynthia Barkman to remove USAA, Bexar County, and Propel from the Debtor’s Chapter 13

plan. Id.

       On July 3, 2014, the Barkmans and Bexar County filed a Joint Motion for Relief from

Stay against the property at 9406 Fernglen. See Exhibit O. In said motion, “[t]he Debtor

disclaims any interest in the Subject Property…and an Agreed Order Terminating Stay with the

mortgage lienholder…” had already been entered. Id. On July 3, 2014, Judge King signed the

Joint Agreed Order terminating the stay as to Bexar County authorizing it to foreclose its tax lien

on the Property.

       E. Application for Court Order Allowing Foreclosure

       On March 23, 2014, USAA filed an Application for Court Order Allowing Foreclosure of

a Lien Securing a Home Equity Loan Under Texas Constitution Article XVI, Section 50(a)(6)

with the 224th Judicial District of Bexar County under Cause Number 2014-CI-04669. See

Exhibit P. On May 7, 2014, after the Barkmans failed to respond, USAA filed a Motion for

Default Judgment Allowing Foreclosure. The Order for Default Judgment Allowing Foreclosure

(“Order”) was signed by the Presiding Judge on May 8, 2014. See Exhibit Q. Following the

signing of the Order, USAA sent the Barkmans a Notice of Acceleration and Trustee’s Sale on

May 9, 2014 by first-class and certified mail in compliance with the Deed of Trust and Texas

Property Code 51.002.

       F. The Barkmans’ First Lawsuit and Non-Suit with Prejudice

       On June 2, 2014, in spite of the Agreed Order Terminating Stay, the Barkmans filed a

lawsuit in the 166th Judicial District Court of Bexar County in order to stop foreclosure sale

scheduled for June 3, 2014 under Cause Number 2014-CI-08731. See Exhibit R. The Barkmans




MOTION FOR SANCTIONS                                                                             6
asserted a variety of claims alleging that USAA was attempting to wrongfully foreclose on the

property because Cynthia L. Barkman was not sent “an acceleration notice, a trustee sale notice,

nor a notice to cure[.]” Id.

       On June 2, 2014, the Barkmans obtained an ex-parte Temporary Restraining Order to stop

the foreclosure sale scheduled by USAA. See Exhibit S. Despite notifying the Bankruptcy

Court that the Barkmans surrendered the property and disclaimed all interest in the property, the

pleading states that they are “the exclusive owners of 9406 Fernglen…” Id. The allegations

contained in the Petition also included things such as “[USAA]’s security interest in the property

is terminated under 15 U.S.C. 1635…”Id.

       On June 18, 2014, USAA filed a Motion to Dismiss pursuant to Tex R. Civ Proc. 91(a)

and a Motion for Sanctions. See Exhibit T. On July 8, 2014, the Barkmans’ attorney (James

Minerve) agreed to Non-Suit their case with prejudice if USAA agreed to postpone the

foreclosure until the September sale. See Exhibit U.

       G. The Barkmans’ Second Original Petition for Wrongful Foreclosure and
          Application for Temporary Restraining Order and Injunctive Relief

       On August 29, 2014, despite the previous Non-Suit with prejudice, USAA’s agreement to

wait until September to foreclose, and the surrender and disclaimer of interest of the property in

Bankruptcy Court, the Barkmans filed another lawsuit under cause number 2014-CI-13755 to

stop the foreclosure sale scheduled for September 2, 2014. See Exhibit V. The Barkmans and

their attorney (James Minerve) received actual notice of the September foreclosure sale by at

least August 14, 2014 and their attorney from his own email request on July 8, 2014.

Nevertheless, the Barkmans waited until Friday August 29, 2014 at 2:30 p.m. to fax USAA’s

counsel that the Barkmans would be seeking a second Ex-Parte Temporary Restraining Order

within the hour. In this lawsuit, the Barkmans once again claimed to be the “exclusive owner of



MOTION FOR SANCTIONS                                                                            7
9406 Fernglen Drive…”       Id.   However, this time the lawsuit is based on the Barkmans’

allegations that the Notice of Sale was ambiguous because said notice stated the sale will take

place between the hours of 10:00-4:00 and will begin no sooner than 1:00 p.m. or three hours

thereafter. See Exhibit X. Chapter 51.002 of the Texas Property code specifically provides that

a foreclosure “must be a public sale at auction held between the hours of 10 a.m. and 4

p.m…notice of sale, which must include a statement of the earliest time at which the sale will

begin…[t]he sale must begin at the time stated in the notice of sale or not later than three hours

after that time.” The Barkmans alleged no other grounds as to why USAA should not have been

allowed to foreclose.

       On September 17, 2014, the Barkmans non-suited this suit without prejudice.             On

September 19, 2014, USAA filed a Motion for Sanctions pursuant to Texas Rules of Civil

Procedure § 13 and Texas Civil Practice and Remedies Code § 10. That court awarded sanctions to

USAA on December 3, 2014. See Exhibit W. The sanctions award remains unpaid.

       H. Foreclosure of the Property and the Eviction Lawsuit

       On February 3, 2015, USAA purchased the Property at a foreclosure sale and recorded a

Substitute Trustee’s Deed on February 13, 2015, thereby establishing itself as record owner of

the Property. See Exhibit X.

       USAA subsequently filed a Sworn Petition for Forcible Entry and Detainer after the

Barkmans failed to vacate the Property upon USAA’s written demand to the Barkmans under

case number 21E1500594. The Justice of the Peace Court, Precinct 2, of Bexar County, Texas

granted a default judgment for possession of the Property on March 4, 2015. See Exhibit Y. The

Barkmans then filed their Notice of Appeal of that court’s judgment.

       The case was then appealed by the Barkmans to the County Court at Law No. 3 of Bexar




MOTION FOR SANCTIONS                                                                            8
County, Texas. That court entered judgment in favor of USAA, granting USAA possession of

the Property. See Exhibit Z. The Barkmans then filed a Notice of Appeal of that judgment to

this Court.

           I. Court of Appeals

           On June 22, 2015, this Court notified the clerk and reporter that both the clerk’s record

and the reporter’s record were late. On June 24, 2015, per this Court’s request, the reporter

notified this Court that the Barkmans had not yet paid his fee. As of the date of this motion, over

a month later, the reporter’s record has yet to be filed. On July 21, 2015, the clerk’s record was

filed.

           On July 6, 2015, this Court ordered the Barkmans to file a brief within 30 days, which the

Barkmans have not done. The reporter’s record has not been filed either, and the Barkmans have

failed to comply with this Court’s orders.

    III.      SANCTIONS SHOULD BE ORDERED AGAINST THE BARKMANS AND
              THEIR ATTORNEY

           Sanctions should be ordered against the Barkmans and their attorney (James Minerve)

because the Barkmans and their attorney have knowingly and intentionally filed frivolous

pleadings against USAA on numerous separate occasions for the sole purpose of delay and

harassment. The Barkmans have routinely filed last-minute lawsuits that are either ruled against

the Barkmans by the court or withdrawn by the Barkmans for over five years now.

           The Barkmans have relentlessly caused unnecessary delay and confusion, and the result

is more fees and costs to USAA, in addition to continued injury to USAA by the non-payment of

its loan by the Barkmans.




MOTION FOR SANCTIONS                                                                               9
       At least one court has agreed so far. As mentioned above, the 407th Judicial District

Court of Bexar County, Texas awarded sanctions to USAA against Cynthia Barkman in the

amount of $3,830.94 due to her behavior as described above up to that point.

       Even after the imposition of sanctions, the Barkmans continue to file frivolous pleadings.

       a. Standard for Imposing Sanctions

       Sanctions may be imposed by this Court under Tex. R. App. P. § 45:

       “If the court of appeals determines that an appeal is frivolous, it may - on motion
       of any party or on its own initiative, after notice and a reasonable opportunity for
       response - award each prevailing party just damages. In determining whether to
       award damages, the court must not consider any matter that does not appear in the
       record, briefs, or other papers filed in the court of appeals.”

The test for whether an appeal is frivolous is outlined by the Court of Appeals of Texas,

Fourteenth District, Houston, in the case of London v. London:

       “If an appeal is frivolous, the appellate court may award the prevailing party just
       damages. TEX. R. APP. P. 45. [676] To determine if an appeal is frivolous, we
       review the record from the viewpoint of the advocate and decide whether there
       were reasonable grounds to believe the case could be reversed. Glassman v.
       Goodfriend, 347 S.W.3d 772, 782 (Tex. App.—Houston [14th Dist.] 2011, pet.
       filed) (en banc). Because the question of whether there were reasonable grounds
       for such a belief is an objective one, an appeal can be frivolous even absent bad
       faith. Id.”

London v. London, 349 S.W.3d 672, 675-676 (Tex. App. Houston 14th Dist. 2011). Therefore,

this Court must review the record from the Barkmans’ attorney’s viewpoint to decide whether he

had reasonable grounds to believe the case could be reversed.

       b.     Appeal of Eviction Judgment

       The Barkmans are appealing the judgment of the County Court at Law that awarded

possession of the Property to USAA. In the Barkmans’ appeal to the County Court at Law No. 3

of Bexar County, Texas, Case No. 2015CV01936, the Barkmans filed a Plea to the Jurisdiction

in which they attempt to attack the judgment of the Justice Court in three ways. See Exhibit AA.



MOTION FOR SANCTIONS                                                                           10
       The first two attempts are arguments that USAA somehow violated 12 USC § 2605

(k)(C) (also known as RESPA) in foreclosing on the property and that the substitute trustee

lacked authority to foreclose. However, such arguments would only be proper in a wrongful

foreclosure suit, not a forcible detainer action.

       As the Barkmans themselves point out in their Plea to the Jurisdiction in paragraph 29,

although cited incorrectly (Tex. R. Civ. P. § 746 was repealed and replaced), “The court must

adjudicate the right to actual possession and not title…A claim that is not asserted because of this

rule can be brought in a separate suit in a court of proper jurisdiction.” Tex. R. Civ. P. § 510.

       It is clear on their face that the Barkmans’ arguments regarding a RESPA violation or the

substitute trustee’s capacity to sell the Property are issues regarding title to the Property, not

merely possession. Therefore, these arguments were properly disposed of by the County Court

at Law, and the Barkmans’ counsel has no reasonable grounds to believe the case could be

reversed by this appeal.

       The third attempt is an argument that the Justice Court and County Court at Law lack

subject matter jurisdiction over the case because the issue of title to the Property is intertwined

with the issue of possession. The Barkmans cite the case of Mitchell v. Armstrong Capital

Corp., 911 S.W.2d 169 (Tex. App. – Houston [1st District] 1995). That case involved a forcible

entry and detainer case where the Court of Appeals held that because of pending litigation in a

state district court involving title to the property, the justice court and county court lacked subject

matter jurisdiction.

       In this case, the Barkmans have not alleged any pending litigation over title to the

Property in any court whatsoever. Therefore, the Mitchell case does not apply to the facts in this




MOTION FOR SANCTIONS                                                                                11
case, and the Barkmans’ counsel has no reasonable grounds to believe the case could be

reversed.



       c.      Res Judicata

       Even if the Barkmans could surmount these hurdles, the Barkmans have more issues to

overcome in order to convince this Court that their appeal is not frivolous.

       As recited above, the Barkmans filed an Application for Temporary Restraining Order in

this Cause after they already filed a Non-Suit with prejudice in a prior state district court action

(see Page 5, paragraph G above re: cause no. 2014-CI-13755). The fact that the Barkmans filed a

notice of Non-Suit with prejudice makes any further issue the Barkmans may bring moot, as the

Non-Suit renders the merits of the case moot. The University of Texas Medical Branch at

Galveston v. Estate of Blackmon, 195 S.W.3d 98 at 101. (Tex.2006). The Barkmans also attempt

to challenge the Order Allowing Foreclosure issued under Cause Number 2014-CI-04669.

However, the Barkmans would be barred under res judicata from challenging the right for

USAA to foreclosure based both upon the Agreed Order Terminating Stay issued in Bankruptcy

and the Non-Suit with prejudice. The Barkmans can no longer challenge the right of USAA to

foreclose. Additionally, to the extent the the Barkmans have an issue with the Notice of Sale

provided to them, this claim is also barred by res judicata. The same wording in the prior Notice

of Sale was used for the June 3, 2014 foreclosure sale and if the Barkmans had an issue with the

language, the Barkmans should have raised the claim in that matter and cannot come back, after

a Non-Suit with prejudice, and challenge the language.

       Under res judicata, a final judgment on the merits of an action precludes the parties from

re-litigating issues that were or could have been raised in the prior action. See Oreck Direct,




MOTION FOR SANCTIONS                                                                             12
LLC v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009). The purpose of res judicata is to preclude

parties from contesting matters that they have had a full and fair opportunity to litigate with the

goal of conserving judicial resources, minimizing the possibility of inconsistent decisions, and

protection parties from the expense and vexation of attending to multiple lawsuits. See Taylor v.

Sturgell, 553 U.S. 880, 892 (2008). For res judicata to apply, the following elements must be

present: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) the

same parties or those in privity with them; and (3) a second action based on the same claims as

were raised or could have been raised in the first action. Igal v. Brightstar Info Tech Group Inc.,

250 SW.3d 78 (Tex. 2008). Res judicata applies if it arises out of the same subject matter as the

prior suit, and that subject matter could have been litigated in the prior suit. Citizens Ins. Co. of

Am. v. Daccach, 217 S.W.3d 430 (Tex. 2007).

        A Non-Suit with prejudice immediately alters the legal relationship between the parties

by its res judicata effect, and a defendant prevails when the plaintiff nonsuits with prejudice.

Epps vs. Fowler, 251 S.W.3d 862 (Tex. 2011). Dismissal with prejudice is a final determination

on the merits. Mossler v. Shields, 818 SW2d 752 (Tex. 1991).

        The Barkmans are thus barred by res judicata as USAA can establish all three elements.

First, both the Non-Suit with prejudice and the Agreed Order Terminating stay acted as a final

judgment on the merits as to the right of USAA to foreclose on the Property. Second, the parties

are identical. Third, the Barkmans’ wrongful foreclosure claim is within the same subject matter

as the prior suit.

        Therefore, it is beyond reason for the Barkmans’ counsel to believe that the case could be

reversed on appeal, as all the issues raised by the Barkmans have been previously adjudicated

against them.




MOTION FOR SANCTIONS                                                                              13
       IV.     CONCLUSION

       Because the Barkmans’ counsel has no reasonable grounds to believe the case could be

reversed on appeal, this appeal is frivolous and this Court may award damages to USAA under

Tex. R. App. P. § 45. While this rule does not require a showing of bad faith by the Barkmans or

their attorney, “[n]onetheless, this court still may consider a party's bad faith in taking an appeal,

for example, when determining the amount of just damages to award under Rule 45.” Glassman

v. Goodfriend, 347 S.W.3d 772, 782 (Tex. App. Houston 14th Dist. 2011).

       As the Barkmans and their attorney have delayed the foreclosure of the Property for over

five years, have filed numerous lawsuits to delay the foreclosure, have filed suits even after

surrendering the Property, agreeing to foreclosure, and dismissing their claims with prejudice,

and have taken no action in this appeal after filing a notice of the appeal, USAA seeks an award

of damages sufficient to compensate USAA for its continued injury and expenses, and to punish

the Barkmans and their attorney.


                                               Respectfully submitted,


                                               BY: /S/ SELIM H. TAHERZADEH
                                               TAHERZADEH, PLLC
                                               Selim H. Taherzadeh
                                               st@taherzlaw.com
                                               Texas Bar No. 24046944
                                               5001 Spring Valley Road, Suite 1020W
                                               Dallas, Texas 75244
                                               Tel. (469) 729-6800
                                               Fax. (469) 828-2772

                                               ATTORNEYS FOR APPELLEE USAA FEDERAL
                                               SAVINGS BANK




MOTION FOR SANCTIONS                                                                               14
                                  CERTIFICATE OF SERVICE

        I certify that on August 28, 2015 this document was served upon the following parties by
email, facsimile, and certified mail.

                                       James Minerve
                                   115 Saddle Blanket Trail
                                      Buda, Texas 78610
                                      (T) 210-336-5867
                                      (F) 888-230-6397
                                     jgminerve@aol.com



                                            Selim H. Taherzadeh
                                            Selim H. Taherzadeh




MOTION FOR SANCTIONS                                                                         15
