                                                                                         ACCEPTED
                                                                                     13-14-00644-CV
                                                                     THIRTEENTH COURT OF APPEALS
                                                                            CORPUS CHRISTI, TEXAS
                                                                                7/14/2015 5:40:36 PM
                                                                              CECILE FOY GSANGER
                                                                                              CLERK




            No. 13-14-00644-CV                            FILED IN
                                                  13th COURT OF APPEALS
                                              CORPUS CHRISTI/EDINBURG, TEXAS
                                                   7/14/2015 5:40:36 PM
                                                    CECILE FOY GSANGER
                          IN THE COURT OF APPEALS          Clerk
                FOR THE THIRTEENTH DISTRICT OF TEXAS
                    AT CORPUS CHRISTI & EDINBURG
         _________________________________________________
       LAREDO NATIONAL BANK D/B/A BBVA COMPASS BANK
                              Appellant,
                                 v.
             MYRNA ELIZABETH DE LUNA MORALES,
                              Appellee.


 On Appeal from the 107th Judicial District Court of Cameron County, Texas, the
                  Honorable Benjamin Euresti, Jr., Presiding


           APPELLANT’S REPLY TO BRIEF OF APPELLEE


        Selim H. Taherzadeh                       Michelle Peritore
         Taherzadeh, PLLC                        Taherzadeh, PLLC
       State Bar No. 24046944                 State Bar No. 24088212
          st@taherzlaw.com                      mp@taherzlaw.com
5001 Spring Valley Rd., Suite 1020W     5001 Spring Valley Rd., Suite 1020W
        Dallas, Texas 75244                     Dallas, Texas 75244
        Tel. (469) 729-6800                     Tel. (469) 729-6800



                         ATTORNEYS FOR APPELLANT



July 14, 2015
                            TABLE OF AUTHORITIES
Cases
Aguilar v. Weber, 72 S.W.3d 729 (Tex.App.- Waco 2002)

Pinnacle Premier Props., Inc. v. Breton, 447 S. W.3d 558 (Tex. App.-Houston [14th
  Dist.] 2014)




                                         i
                             SUMMARY OF REPLY

      Appellee filed her brief five months and twenty days after the initial

deadline established by the Texas Rules of Appellate Procedure. Nevertheless, her

brief is filled with distortions of the facts, misrepresentations of the law, and an

incorrect claim of mootness due to her unexplainable delay.




                   APPELLEE’S MISREPRESENTATION OF FACTS

      A. The Parties

      Appellee’s misrepresentation of the facts begins even before her “Statement of

the Facts”.   Appellee cannot even properly identify the Appellant.         Appellee

wrongfully lists counsel for Appellant, Selim H. Taherzadeh, as an Appellant since

“[b]oth second amended and prior plaintiff’s pleadings suggest that he is a

defendant.” Appellee’s Brief, page iii. However, none of her pleadings name Selim

H. Taherzadeh named as a Defendant nor does Texas recognize “suggestions of

defendants”. It is inconceivable that the Appellee, the plaintiff in the underlying

action, cannot identify who are the defendants in her own lawsuit, but it continues a

pattern of mistruths used for no other apparent purpose than confusion.
      B. Appellee’s Attempts to Sale the Property

      Appellee lists in her statement of facts that she “had arranged more than once

for the property to be sold but due to intransigence by Appellant Compass Bank, and

Appellant’s counsel, and perhaps misconduct, Appellee was not able to cure an

alleged deficiency, nor to effect a sale of her property.” Appellee’s Brief, page 3.

This is a gross misstatement of the facts pursuant to the testimony and documents

offered by Appellee herself. The simple undisputable facts are these. Appellee was

in default. The property in question was scheduled for foreclosure sale on March 4,

2014. Prior to the foreclosure sale, Appellee, through her counsel, requested the

Appellant postpone the sale for the following month as she had a buyer but the

closing would not occur for a few weeks.            Appellant agreed to postpone the

foreclosure sale of the property until April. The proposed sale by Appellee did not

occur because her “buyer” got cold feet.


      The Friday prior to the April foreclosure sale, Appellee’s counsel once again

reached out to Appellant saying that there is another potential purchaser and

requesting a second postponement since the closing of the second contract would

again occur after the rescheduled foreclosure sale.           This second request for

postponement was denied and the foreclosure sale went forward as noticed. Appellee

testified that she neither had the funds to reinstate or payoff the loan at the time of the
foreclosure sale. These facts are undisputed. These facts are based off the evidence

presented by Appellee’s Counsel and the testimony of Appellee herself. There are no

other factual allegations of wrongdoing other than the failure to postpone a

foreclosure sale for a second time for a contract that may or may not go through. To

call the failure to postpone a foreclosure sale for a second time “intransigence” or

“misconduct” is a clear misstatement of the facts.


      C. Appellee’s Claim that she did not receive Notice of Sale

      For the first time in her brief, Appellee is now claiming that she did not get

notice of the foreclosure sale. Once again this is a ridiculous claim by Appellee as:

1) she herself introduced the notice of foreclosure sale as evidence at the

Temporary Injunction Hearing, 2) the clear evidence is that the foreclosure sale

was rescheduled to April 1, 2014 at her request, and 3) it has subsequently become

a deemed admission that she received the notice of foreclosure sale. Appellant can

come up with no other explanation for the statement that Appellee claims she

“never received notice of sale” other than it is an additional misstatement of the

truth for the sole purpose of causing confusion as to the issues before this Court.
                                     ARGUMENT

Standard of Review

      Appellee argues in her brief that the standard of review when dealing with

injunctive relief is abuse of discretion.   However, as clearly explained by a case

cited by Appellee, Courts “will apply a de novo standard of review when the issue

turns on a pure question of law.” Pinnacle Premier Props., Inc. v. Breton, 447

S.W.3d 558, 562 (Tex. App.—Houston [14th Dist.] 2014). Questions such as “the

effect of the tenant-at-sufferance clause in the deed of trust….and whether

appellees, under the undisputed facts, had an adequate remedy at law through their

wrongful foreclosure claim” are questions of law that the Appellate Court can

review de novo. Id. at 563. Thus, the issues of whether the trial court should have

continued to enjoin the Appellant when the deed of trust contained tenant at

sufferance language, whether the causes of action put forth by Appellee support

injunctive relief, or whether she had an adequate remedy at law are all properly

reviewed de novo.


No Adequate Remedy at Law


       Appellee claims that she has an irreparable injury since it is the loss of her

home. The Court in Pinnacle, a case cited by Appellee in her own brief, says the

exact opposite with facts nearly identical to this case. Appellee’s Brief, page 19.
“Here, the foreclosure sale has already occurred, and appellees’ available remedies

for wrongful foreclosure are money damages or rescission of sale….[w]e conclude

as a matter of law that the trial court erred in granting the temporary

injunction….appellees have an adequate remedy at law through their wrongful

foreclosure claim.” Id. at 565-566. It remains a mystery how Appellee could

argue no adequate remedy at law when a case she herself cites, without

distinguishing, clearly states the opposite conclusion as a matter of law.


Evidence of a Title Dispute

      Appellee argues that mere evidence of a title dispute is enough to deprive the

Justice Court of jurisdiction even if there is tenant at sufferance language in a deed

of trust.   Amazingly enough, Appellee cites a case that concludes the exact

opposite to support her position. The Court in Aguilar v. Weber specifically found

that because the underlying deed of trust did not have tenant at sufferance

language, the issue of title needed to be determined before the Justice Court could

proceed;    and thus distinguished the case from other cases in which the eviction

action in the Justice Court could proceed. Aguilar v. Weber, 72 S.W.3d 729 (Tex.

App.-Waco 2002). “We agree that a forcible detainer action must be based on a

landlord-tenant relationship…the contract also did not provide that the Aguilars

would become tenants at sufferance...” Id. at 735. Appellee freely admits that the
deed of trust that was the basis for the foreclosure included tenant at sufferance

language. Even a first year law student would understand that the Aguilar case

actually supports Appellant’s position that since the deed of trust included tenant at

sufferance language than the right to immediate possession can be tried in the

Justice Court without interruption.      Once again, it is unclear why Appellee

attempts to ignore the actual rulings in the cases she cites other than an attempt to

deceive the Appellate Court.      As the Court in Pinnacle, cited once again by

Appellee for the opposite conclusion, correctly noted, “[w]hen a party to be

evicted is subject to a tenant-at-sufferance clause and the party seeking the

possession purchased the property at a foreclose sale….defects in the foreclosure

process are not relevant to possession.” Pinnacle at 564.



Appellee Had No Probable Right to Recovery on Trial on the Merits.

      In addition to the Trial Court erring in finding continuing to stop the pending

eviction action and presumably finding Appellee had no adequate remedy at law,

the Trial Court should have dissolved the injunction due to the fact that Appellee

presented no evidence at any time that showed any cause of action with a

likelihood of success on the merits. Other than generic statements that Appellee

pled many causes of action that the Judge could have found supported injunctive
relief, Appellee does not dispute any of the specific arguments on why each cause

of action fails as a matter of law as presented in the Appellant’s brief.


      Interestingly enough, Appellee spends the majority of her brief focused on

what she perceives to be a missing endorsement on the note and thus arguing that

Appellant was without authority to proceed with the foreclosure. This argument

first appeared in the Amended Petition filed one day prior to the brief being filed.

As such, the argument is irrelevant and cannot be used to support the prior

injunctive relief or more specifically, the denial of dissolution or modification of

the prior injunctive relief.    Even with that being the case, Appellee clearly

misstates the law and facts as to that argument as well. The parties entitled to

enforce a note are the owner, holder, or holder-in-due course. There is no dispute

that Appellant is the current owner of the note through a merger. As owner of the

note, it is entitled to enforce the note regardless if they endorse it to themselves.

Additionally, Appellee’s own testimony says she understands Appellee owns the

note and Exhibit H to her brief is a Loan Modification and Extension Agreement in

which she clearly agreed that “Compass Bank (herein “Lender”) is now the owner

and holder the herein described liens.” Appellee’s Brief, Exhibit H. Appellee is

improperly attempting to put forth an entirely new frivolous argument to try to

support a prior ruling.
Advisory Opinion

      Appellee further asserts that the Appeal is an impermissible request for an

advisory opinion. This argument is without merit. There have been clear mistakes

in the law.   The Appellee offered no evidence to the Trial Court to show a

likelihood of success on the merits for any purported claim. At no point in

Appellee’s own brief does she even cite any evidence of any cause of action.

Moreover, the Appellee failed in the entirety to address the other defects in the

Temporary Injunction Order, such as the failure to include a trial date and

insufficient bond, either of which should have been grounds to at least modify the

Order as alternatively requested by Appellant to the Trial Court.


Mootness

      Appellee states that “[t]he record does not explain what happened between

then [Appellant’s Brief filed on December 30, 2014] and May 5, 2015 when

Appellee asked for an extension of time to file her brief.” Appellee’s Brief, page

32. Appellee further states that the “sheer passage of time makes the issue moot”

and that “a good part of it [the fault] also falls on Appellant’s shoulders.”

Appellee’s Brief, page 34. These statements would seem to be unbelievable if not

for the other actions and statements by Appellee’s counsel up to this point.
      It might be true that only Appellee, or perhaps Appellee’s counsel, know the

true reason for the unexplained delay.         Perhaps, as evidenced in her brief,

Appellee’s counsel knew that they had no valid legal arguments in response to

Appellant’s brief. Or perhaps it was because Appellee had returned to Mexico and

Appellee’s counsel (Noe Robles) thought that an unfavorable ruling might

interrupt his use of the underlying property as a vacation home for himself and his

family as he informed the Trial Court at a subsequent hearing. But the allegation

that the blame for the delay in filing the Appellee’s Brief falls on anyone other than

Appellee or Appellee’s counsel, when counsel had knowledge of the deadline to

respond, was included on numerous emails about the delinquency of a response,

and did not even request the first of three extensions until 5 months after the brief

was initially due, is absurd.


      The Appeal is not moot.       There has been no trial on the merits and until

there is, the Appeal will not be moot as an improper injunction remains in place.

The fact that the trial is scheduled for August does not change anything as there

has been no final order. Additionally, Appellee recently amended her pleadings to

allege new causes of action and has thus far, failed to respond to discovery requests

despite a prior granted Motion to Compel and a pending Emergency Motion to

Compel. It is likely that the trial will have to be delayed further.
      If, however, trial does go forward before this Court renders an opinion and

does effectively make the Appeal moot; this Court should consider using its

inherent authority to sanction Appellee or Appellee’s Counsel for their delay that

caused its mootness, the intentional misstatement of undisputed facts, and the

attempted misrepresentations of case law offered.




                                      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 APPELLANT
                                      COMPASS BANK
                          CERTIFICATE OF SERVICE
      I hereby certify that on July 14, 2015 a true and correct copy of the above
and foregoing Reply was properly forwarded to all counsel of record for Appellee
in accordance with Rule 9.5 of the Texas Rules of Appellate Procedure, as follows:
                                    Noe Robles
                                  23331 Tamm Lane
                               Harlingen, Texas 78552
                                  (T) 956-440-8200
                                  (F) 956-440-8205
                              nrobelslawoffice@aol.com

                                   Philip Cowen
                                500 E. Levee Street
                             Brownsville, Texas 78520
                                 (T) 956-541-6031
                                 (F) 956-541-6872
                                   ptchb@att.net


                                         /s/ Selim H. Taherzadeh
                                         Selim H. Taherzadeh


                        CERTIFICATE OF COMPLIANCE
       Pursuant to Tex. R. App. P. 9.4, I hereby certify that this brief contains
2,377 words. This is a computer-generated document created in Microsoft Word
2013, using 14-point typeface for all text, except for footnotes which are in 12-
point typeface. In making this certificate of compliance, I am relying on the word
count provided by the software used to prepare the document.

                                         /s/ Selim H. Taherzadeh
                                         Selim H. Taherzadeh
