                           No. 14-15-00270-CV


                IN THE FOURTEENTH COURT OFAPPEALS
                           FOR THE STATE OF TEXA            FILED IN
                                                       14thCOURT OFAPPEALS
                                                          HOUSTON.TEXAS

                                                          6bF 14 fl)l5
OSAIGBOVO NEHIKHARE, Appellant
                                                         RISTOPHER A. PRINE
                                                              CLERK
                             V.


CREEKSIDE COMMUNITY,ASSOCIATION, Appellee



            On Appeal From The 113,th District Court
            Harris county, Texas
            Trial court cause No.2014-39356




                    MOTION FOR REHEARING




                                   OSAIGBOVO NEHIKHARE
                                   21126BEARRUNLN
                                   KATYTX, 77449
                                   (832) 689-6706
IDENTITY OF PARTIES AND COUSEL



Appellant:

OsaigbovoNehikhare
21126 Bear Run Lane
Katy,TX 77449




Appellee:

Creekside community Association, Inc


Counsel for Appellee

Holt &young
821 Katy Freeway,
Houston, TX 77024
Telephone: (713) 510-1000
                 TABLE OF CONTENTS


                                     PAGE


1   STATEMENT OF CASE                    1


2   IDENTITY OF PARTIES AND COUSEL        2


3   TABLE OF CONTENTS                  ...3

4   TABLE OF AUTHORITIES                 4

5   STATEMENT OF CASE                    5


6   STATEMENT OF FACTS                5-6


8   ARGUMENTS                         6-8


9   CONCLUSION                           9
                         TABLE OF AUTHORITIES



1) .El Apple I. Ltd v. Olivas, 370 S.W.3d 757 (Tex. 2012).

2) [No.14-0637, W. VA, filed April 13, 2015]

3) FDCPA section 807 [15 U.S.C. section 1692e]
 STATEMENT OF CASE


       By this motion for rehearing, Appellant Mr. Nehikhare ask this court to review and

 overturn the decision of the 13th Judicial District Court, which granted Appellee Creek

 Community Association (Association) a foreclosure sale order. Rehearing is appropriate in this

matter because the district court entered a foreclosure sale order without regard to critical

 evidence, which is, Appellant's own testimony which would have proved that Appellant did

 make payments of the dues, but Appellee refused to accept payment. The aforementioned fact

 is dispositive to the court's decision. For that reason, Appellant urge this Court to consider the

 following argument with care. pU^S^ v ^^ VN>tJ2~ ^ ^^ S°^ '

 STATEMENT OF FACTS


       Mr. Nehikhare, Owner of 21126 Bear Run Lane, Katy, Texas, on December 2007 attended
a yearly meeting by the Association to discuss budget and how fees are being spent to maintain the
community. Other members of the Association were present in this meeting. In said meeting,
issues were raised on the Association's failure to maintain the aesthetic nature and common area of

the community. Community members expressed concern and grievance regarding four issues:

1) that the entrance to the community was not maintained; 2) the community park landscape was
not taken care of, which resulted to overgrown weed and grass in the park); 3) the community
name entrance was never erected; and 4) the community park which was promised to be built was
never constructed.


       At the end of the meeting, property owners agreed to withhold quarterly dues until the
Association resolved the aforementioned issues. Hence, from January of 2008 to 2011 quarterly
dues were not paid as agreed by property owners. Association then decided to sue each member for
payment. Mr. Nehikhare was sued for $2,357.75 for the 2008-2011 dues. The districtcourt
awarded judgmentfor said amount, plus interest at the rate of 5% per annum, and for attorney fees
in the amount of $3,622.40. Mr. Nehikhare diligently contacted the Association to make
arrangement to begin making payments. Mr. Nehikhare asked for a monthly payment plan, but was
denied by the Association. The Association asked that payment being made in full within 6
months. However, Mr. Nehikhare could not make the said payment within the allotted time being a
full time student with other obligations and during said period, Mr. Nehikhare was experiencing
extreme financial hardship.


On March 3, 2014, Mr. Nehikhare made full payment of the awarded dues of $6,320. On March
13, 2014, Mr. Nehikhare tendered his quarterly dues to the Association for 2012 and 2013,
however, the Association refused to accept the dues stating that Mr. Nehikhare had to speak to
their attorneys regarding the payments. Mr. Nehikhare agreed to make payments, but was told he
had to pay attorney fees for 2012 and 2013. Mr. Nehikhare objected to such request, arguing that it
was preposterous for him to pay attorney fees for 2012 and 2013 since this matter was never taken
to court, hence, he didn't understand why he had to pay attorney fees. However, the Association
did accept payment for 2015, but then decided to institute a lawsuit to collect payment for 2012
through 2014. Mr. Nehikhare never refused to make such payments, but only objected to pay
attorney fees for 2012 and 2013 because a lawsuit was not instituted to collect fees for the
aforementioned years.




ARGUMENTS


       The trial court's judgment is contrary to what the Texas Supreme Court has ruled that a
plaintiff wanting an award of attorney's fees in a contingent fee case must keep time records to
prove its reasonable and necessary attorney fees; and further, the fees must be reasonable. El Apple
I. Ltd v. Olivas, 370 S.W.3d 757 (Tex. 2012). The court further made it clear that if attorney fees
are to be collected, time record must be kept and it must be in comparison to the amount
recovered. Association claimed that he had accrued attorney fees in the amount of $3,622.40.
However, Association did not institute any lawsuit to collect the dues for 2012 and 2013. Hence,
Association has not proved how the attorney fees were accrued. The claim for unpaid dues that
Association initiated against Mr. Nehikhare was for the dues owed from 2008-2011, which Mr.
Nehikhare did eventually pay off.
In Fleet v. Webber Springs Owners Association, Inc. [No.14-0637, W. VA, filed April 13, 2015],
regarding the issue of attorney fees, the homeowners argued that even if Webber Springs held a
valid consensual lien for unpaid assessments, it did not have a common law lien for attorney fees
and costs. The homeowner supported their argument by invoking the provisions of the West
Virginia Consumer Credit and Protection Act (WVCCPA) governing debt collection practices. The
homeowners argued that the state trial court erred in ruling that the West Virginia Act did not
apply. The West Virginia Supreme Court agreed with the homeowner that the state trial court
"erred in granting partial summary judgment in favor of Webber Springs based upon its erroneous
conclusion that the WVCCPA was not applicable." Similarly, under the FDCPA section 807 [15
U.S.C. section 1692e], "a debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any debt."




 Association's bylaw does permit Association to collect reasonable attorney fees but only when

an action is brought against the owner to collect any delinquent fee. Here, even though the

bylaw stipulates that Association may collect interest and attorney fees for delinquent fees, it

only permits such fees if an action was instituted. Again, the fees from 2012, 2013 and 2014

which Association claims Mr. Nehikhare owes attorney fees was not sought after via litigation.

 Mr. Nehikhare did offer on several occasions to make payment for the aforementioned years,

but Association declined to receive the dues. Association made false representation to collect

attorney fees in connection with the dues owed for 2012, 2013 and 2014. Mr. Nehikharemade

effort to make payment, however, Association refused to accept the dues.

       Mr. Nehikhare does not contend the fees for 2012, 2013 and 2014, but he argues that the

attorney fees should not be included in the amount because Association has not shown how the

attorney fees were accrued since a lawsuit was not instituted to collect the amount owed. Also,

it is unreasonable and egregious for the Association to include such fees since Mr. Nehikhare
did tender payment, but the Association refused to accept the payment at that time.

Mr. Nehikhare agrees that neither him nor the other homeowners had the right to withhold

dues, although they were of the belief that they had a rightful position to do so because

Association did not fulfill its obligation to maintain the common areas in the community.

Association failed to meet its obligation under the bylaws; it breached its covenant to maintain

the common areas and also breached its fiduciary duty to exercise ordinary care in reasonable

and good faith manner in the performance of its duties. Nevertheless, Mr. Nehikhare was in

error to withhold dues. Mr. Nehikhare was not aware that the proper remedy was to institute a

lawsuit against Association for breach of covenant and breach of fiduciary duty, rather than

withhold dues. Flence, Mr. Nehikliare is willing to make payments, but not subject to attorney

fees since the Association has not shown or proved how they accrued attorney fees because a

claim was never made to recover the dues of 2012, 2013 and 2014.
CONCLUSION


The district court erred in entering a foreclosure sale order without hearing critical evidence of

Appellant's own testimony, hence, a rehearing should be granted.
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COURT RECIECVE DATE:




APPELLANT


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