                                                                                        ACCEPTED
                                                                                    03-15-00362-CV
                                                                                            7069629
                                                                         THIRD COURT OF APPEALS
                                                                                    AUSTIN, TEXAS
                                                                               9/23/2015 5:45:39 PM
September 28, 2015                                                                JEFFREY D. KYLE
                                                                                             CLERK
                            No.03-15-00362-CV

                           COLETTE CUSTER
                                                                 RECEIVED IN
                               Appellant                    3rd COURT OF APPEALS
                                                                AUSTIN, TEXAS
                                    vs.                     9/23/2015 5:45:39 PM
                                                              JEFFREY D. KYLE
                                                                    Clerk
                       WELLS FARGO BANK, N.A.
                              Appellee

               Appeal from the County Court at Law, Number 2
                            Travis County, Texas
                   Trial Court Case No. C-1-CV-15-000426
                     Honorable Todd T. Wong, Presiding

                         BRIEF FOR APPELLANT


                                          Colette Custer
                                          c/o 13276 Research Blvd., Ste.204
                                          Austin, Texas 78750
                                          Proceeding Pro Se
                            Identity of the Parties

Appellant
COLLETTE CUSTER
20433 Rita Blanca Circle
Pflugerville, Texas 78660

Proceeding Pro Se


Appellee

WELLS FARGO BANK, N.A.

Counsel for Appellee

Suzanne Louise Suarez
14841 Dallas Parkway, Suite 425
Dallas, TX 75254
(214) 550-4046




                                       ii
                               Table of Contents

Identity of the Parties                                                          .ii

Table of Contents                                                                 .iii

Table of Authorities                                                             v

Statement of the Case                                                                  1

Jurisdictional Statement                                                      2

Issues Presented                                                                 3

   1. Whether the two-year limitations period of Texas Civil Practice and
   Remedies Code §16.003 bars Appellee's Forcible Detainer suit for
   possession of the property?

   2. When did the action accrue?

   3. Whether it is in harmony with the Texas Constitution and statutory law for a
   court to rule that, in practice, there is no statute of limitations conveyed by
   Texas Civil Practice and Remedies Code §16.003, because the statute of
   limitations begins anew each and every time a notice to vacate is sent to the
   same forcible detainer at the same address for the same cause but with a new
   date on the notice to vacate?

Statement of Facts                                                           3

Summary of the Argument                                                      5

Argument                                                                         7

      Single Action Rule                                                          7

      Res Judicata                                                                   8

      Forcible Detainer versus Tenant at Sufferance or Tenant in Arrears     10

              15t Instance                                                       10



                                        iii
              nd
             2 Instance           11

      State of Repose            13

Conclusion                       15

Certificate of Compliance        18

Certificate of Service           18

Appendix                         19




                            iv
                                         Table of Authorities

Cases

Caldwell v. Barnes, 975 S.W.2d 535 (Tex.1998)                                                    l3

Doe v. Catholic Diocese ofEI Paso, 362 S.W.3d 707, 716
(Tex.App.-EI Paso 2011, no pet.)(same)    _                                                 .12, 16

Federal Home Loan Mortgage Corporation, v. Trinh Pham, Katherine
Crawford & Gary Block, 449 S.W.3d 230,
(Tex.App.-Houston  [14th Dist.] 2014)                                                                     8

Galveston, h. & S.A. 647*647 Ry. Co. v. Dowe, 70 Tex. 5,
7 S.W. 368, 371 (1888) .................................................•....           ·                 7

Gideon v. Johns-Manville Sales Corp., 76 1 F.2d 1129, 1136-37 (5th Cir. 1985).. 6

Johnson & Higgins ofTex.,Inc. v. Kenneco Energy, Inc.,
962 S.W.2d 507,514 (Tex.1998)                                                                     6

Provident Life & Accident Ins. Co.v Knott, 128 S.W.3d 211, 221 (Tex.2003)                                 5

Puentes v. Fannie Mae, 350 S.W.3d 732 (Tex.App.-Corpus                          Christi, 2010)   8

Murphy". Campbell, 964 S.W.2d 265,273 (Tex.1997)                                                          5

Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990)                                   16

Provident Life & Accident Ins. Co.v Knott, 128 S.W.3d 211,221 (Tex.2003)                                  6

Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex. 2000)                                   7

Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76,80 (Tex.1989)                                   13

s.v. v. R.V.,   933 S.W.2d 1,4 (Tex.1996)                                                    12, 16

Via Net v. TIG Ins. Co., 211 S.W.3d 310,313 (Tex.2006)                                                    6

Villarreal v. Wells Fargo Brokerage Servs., 315 S.W.3d 109,                         .
(Tex.App.-Houston     [I st Dist]. 2010)                                                                  6


                                                      v
Zale Corp. v. Rosenbam, 520 S.W.2d 889, 891 (Tex. 1975)                6

Texas Rules of Civil Procedure

Texas Civil Practice & Remedies Code § 16.003              2, 12

Texas Property Code Chapter 24                                         2

Texas Constitution

Texas Constitution, Art. 1, Sec. 3                            2, 13

Texas Constiution, Art. 1. Sec. 3a                           2, 13

Texas Constitution, Art. 1, Sec. 9                          2, 13

Texas Constitution, Art. 5           ;                    e ••••   2




                                      vi
                                     STATEMENT OF THE CASE

          This appeal stems from a forcible detainer case which was heard de novo in

Travis County Court at Law #2 on June 1,2015.

          Appellant signed a Note with Wells Fargo on December 20,2005.            At some

point, Appellant anticipated a reduction in salary, and began negotiations to modify

her payments.            When she began negotiations, she had over $50,000 in the bank,

she just wanted a reduction in the amount of monthly mortgage payment.

          An advisor or several advisors at Wells Fargo told her to stop paying her

current mortgage in anticipation of a modification.              This is standard operating

practice in bad faith which was done by the mortgage companies. True to form,

Wells Fargo, instead of modification, began foreclosure and did in fact foreclose.

Appellant hired an attorney, as she believed and she was told, that Wells Fargo was

acting in bad faith. Eventually, her entire savings and an additional inheritance

were drained by the lawsuit.

         This led to four suits by Wells Fargo for forcible detainer over a period of

four years. The first of these, Cause No. 63648, in Travis County Justice Court

precinct 2, was dismissed for want of prosecution on December 28, 2011.1

          Then came Cause No. J2-CV-13-070204,                 which resulted in a default

judgment for Wells Fargo, although an agent for defendant was present, and then



1 Reporter's   Record, Volume 3, Defendant's   Exhibit 3

                                                           1
the justice clerk did not honor Appellant's bond and the house was illegally posted.

Appellant filed bankruptcy as that was her only recourse .

          .The next was Cause No. J2-CV-14-074997,               In the Justice Court, Travis

County, Travis County, Texas, which was Non-suited on September 18,20142•

           The next suit was Cause No. J2-CV-14-0756593, which Judge Elena Diaz

dismissed, as being barred by expiration of statute of limitations."

           Well Fargo appealed the order of Judge Diaz' which resulted in Cause No.

C-I-CV-15.,.000426, in the Travis County Court at Law, #2, in which Judge Wong

issued an order in favor of Wells Fargo.

           It is from Judge Wong's order that Appellant appeals.

                                    JURISDICTIONAL STATEMENT

           This Court has jurisdiction of this appeal because Appellant appeals a final

judgment from the Travis County Court at Law #2. Texas Civil Practice &

Remedies Code §16.003, Texas Property Code, Chapter 24, Texas Constitution,

Art. I, Sec. 3, 3a and 9, and Art. 5.




2   Reporter's Record, Volume 3, Defendant's     Exhibit 9
3   Reporter's Record Defendants'   Exhibit 10
4   Order, Clerk's Record page 16
5   Notice of Appeal, CR page 14

                                                             2
                                 ISSUES PRESENTED

1.        Whether the two-year limitations period of Texas Civil Practice and

Remedies Code §16.003 bars Appellee's Forcible Detainer suit for possession of

the property.

2.        When did the action accrue?

3.        Whether it is in harmony with the Texas Constitution and statutory law for a

court to rule that, in practice, there is no statute of limitations conveyed by Texas

Civil Practice and Remedies Code §16.003, because the statute of limitations

begins anew each and every time a notice to vacate is sent to the same forcible

detainer at the same address for the same cause but with a new date on the notice to

vacate.



                              STATEMENT OF FACTS

      On October 4, 2011, Wells Fargo Bank, N.A., as Grantor foreclosed on

Appellant's property on Rita Blanca.

      On October 12, 2011, Brice, Vander Linden & Wernick, P.C., sent a

certified "Demand to Vacate Premises" letter, followed by a suit for forcible

detainer, Wells Fargo Bank, N.A., v. Colette M Custer, Shane G. Streeman and all

other occupants, Cause No. 63648, in the Justice Court, Precinct Two, Travis




                                            3
County, Texas.             This suit was dismissed on December 28, 2011, for want of

prosecution.

           On May 22, 2013, a suit for forcible detainer was filed in the Justice of the

Peace Court, Precinct 2-1, Travis County, Texas, Cause No. J2-CV-13-070204,

Wells Fargo Bank, N.A. v. Colette M Custer, Shane G. Streetman and all other

Occupants 0/20433 Rita Blanca Circle, Plugerville, TX 78660.

           Attached as evidence in the case was a certified letter dated May 7, 2013,

entitled "Demand to Vacate Premises", and referencing the foreclosure sale on

October 4, 2011. Appellant did not personally appear on June 4, 2013, she was

represented by an agent, yet, Judge Glenn Bass signed a Default Judgment in favor

of Wells Fargo. The bond of $1700 was posted by way of Appellant's Affidavit of

Inability to pay, on June 7, 2013. However, Precinct 2 issued a Notice to Vacate

on June, 26, 2013.6              Appellant filed bankruptcy to stop the illegal seizure and

overcome the gross error of the justice court and the suit died of its own volition.

           On July 2, 2014, Buckley Madole, P.C., sent a certified "Demand to Vacate

Premises" letter which referenced the October 4,2011 foreclosure.

           On August 4, 2014, a suit for forcible detainer was filed in Justice of the

Peace Court, Precinct 2-1, Travis County, Texas, Cause No. J2-CV-14-074997,

Wells Fargo Bank, N.A. v. Colette M Custer, Shane G. Streetman and all other



6   Reporter's Record, Volume 3, Defendant's   Exhibit 6

                                                           4
..


     Occupants of 230433 Rita Blanca Circle, Pflugerville, TX 78660. Attached as

     evidence was a Certified letter from Buckley Madole, entitled "Demand to Vacate

     Premises", which referenced the foreclosure sale of October 4, 2011. Hearing for

     this suit was set for August 19, 2014.       Judge Elena Diaz issued an Order for

     Continuance on August 26,2014, and reset the hearing for September 18,2014.

           Wells Fargo did not appear at the September 18, 2014 hearing, and Judge

     Diaz granted an Order Granting Plaintiffs Oral Motion for Nonsuit.

           On August 6, 2014, another forcible detainer suit was filed.     This FED,

     Cause No. J2-CV-14-074997,      in the Justice of the Peace Court, Precinct 2-1,

     Travis County, Texas, Wells Fargo Bank, N.A. v. Colette M Custer, Shane G.

     Streetman and all other Occupants of 20433 Rita Blanca Circle, Pflugerville, TX

     78660. Attached as evidence to the suit was a certified letter dated July 2, 2014

     from Buckley Madole entitled "Demand to Vacate Premises", referring to the

     foreclosure sale conducted on October 4, 2011 .

          . This Order was appealed to County Court, Cause No. C-I-CV -15-000426,

     Judge Wong presiding who ruled in favor of Wells Fargo and is the Order which is

     appealed before this Court.

                           SUMMARY OF THE ARGUMENT




                                              5
·   .


                   An Order Dismissing Plaintiffs Case as Barred by Expiration of Statute of

        Limitations was signed on December 8, 2014 by Judge Elena Diaz.

                   "A defendant moving for summary judgment on the affirmative defense of

        limitations        must conclusively            establish     the date on which the limitations

        commenced; that is, the date on which the cause of action accrued.                              See

        Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex. 2000); Zale Corp.

        v. Rosenbam, 520 S.W.2d 889,891 (Tex. 1975). The determination of this date is

        typically a question of law."                 Provident Life & Accident Ins. Co.v Knott, 128

        S.W.3d 211,221 (Tex.2003).

                   As a general rule, a cause of action accrues, and the statute of limitations

        begins to run, when facts come into existence that authorize a party to seek a

        judicial remedy. Id. (citing Johnson & Higgins of Tex.,Inc. v. Kenneco Energy,

        Inc., 962 S.W.2d 507, 514 (Tex. 1998».                        In most cases, claims accrue "when a

        wrongful act causes some legal injury."                       Via Net v. TIG Ins. Co., 211 S.W.3d

        310,313 (Tex.2006). Villarreal v. Wells Fargo Brokerage Servs., 315 S.W.3d 109,

        (Tex.App.-Houston               [1st Dist]. 2010).

                   When Brice, Vander Linden & Wernick,                   p.e., acting for Wells Fargo Bank,

        N.A. sent its letter on October 12, 20117 entitled "Demand to Vacate the




        7   Reporter's Record, Volume 3, Defendant's Exhibit 11

                                                                  6
.   '




        Premises", it triggered the running of the two year statute of limitations no later

        than October 16,2011.

                                           ARGUMENT

                                        Single Action Rule

              In Pustejovsky v. Rapid-American Corp. v. Pustejovsky, 35 S.W.3d 643,
        (Tex.2000), the single action rule is discussed:

                "The case raises the question whether a plaintiff may bring separate
            actions for separate latent occupational diseases caused by exposure to
            asbestos. Specifically, we must decide whether the single action rule or the
          . statute of limitations bars Henry Pustejovsky, who settle an asbestosis suit
            with one defendant in 1982, from bringing suit against different defendants
            twelve years later for asbestos-related cancer. The court of appeals
            affirmed, holding that under the single action rule, Pustejovsky's cause of
            action for cancer accrued, and limitations began to run, when he know of
            the asbestosis. 980 S.W.2d 828, 833. We conclude, however, that neither
            the single action rule nor the statute of limitations bars Pustejovsky's later
            claim for asbestos-related cancer. "
               "The single action rule, also known as the rule against splitting claims,
            provides a plaintiff one indivisible cause of action for all damages arising
            from a defendant's single breach of a legal duty. See Gideon v. Johns-
            Manville Sales Corp., 76 1 F.2d 1129, 1136-37 (5th Cir. 1985). Our
            jurisprudence "was designed to prevent more than one suit growing out of
            the same subject-matter of litigation; and our decisions from the first have
            steadily fostered this policy." Galveston, h. & S.A. 647*647 Ry. Co. v.
            Dowe, 70 Tex. 5, 7 S.W. 368,371 (1888).

              "The single action rule, like limitations and res judicata, serves the
           purpose of giving defendants a point of repose. However, a defendant is in
           no different position with respect to an asbestosis plaintiff who may
           develop mesothelioma in the future than with an individual who contracts
           mesothelioma without ever suffering asbestosis. And the defendant's need
           for repose must be balanced against the plaintiff s need of an opportunity to
           seek redress for the gravest injuries, those culmination in wrongful death."



                                                  7
,   '




               If a suit involves the same issue, the same property, and the same date of

        foreclosure sale, the court cannot construe a new set of circumstances exists

        because a more current notice to vacate is issued.        It is obvious the accrual of

        action began when the first notice to vacate issued and the tenant at sufferance

        refused to vacate the property.      It is at that point in time when the tenant at

        sufferance takes on the legal status of forcible detainer.         Unless there is an

        agreement or some other written concession, the forcible detainer maintains that

        legal status until he is dispossessed, his dispossession is barred by limitations, or he

        reaches a state of repose. In this case, there is no new owner who issued a notice

        to vacate, it is the same Wells Fargo, N.A., whose action accrued three days after

        October 12,2011, and who filed 4 separate FED actions and the exact same issues

        and causes of action. The only thing that changed from law suit to law suit over a

        period of four years, was the date on the each Notice to Vacate letter.

              When Brice, Vander Linden & Wernick, P.C., acting for Wells Fargo Bank,

        N.A. sent its letter on October 12,2011 entitled "Demand to Vacate the Premises",

        it triggered the running the of statute of limitations no later than October 16, 2011.

                                            Res Judicata

              In its brief at county court, Wells Fargo used as its basis, Puentes v. Fannie

        Mae, 350 S.W.3d 732 (Tex.App.-Corpus           Christi, 2010) and Federal Home Loan

        Mortgage Corporation, v. Trinh Pham, Katherine Crawford & Gary Block, 449


                                                   8
,   '




        S.W.3d 230, (Tex.App.-Houston             [14th Dist.] 2014), which are cases that assert

        claims of res judicata. The statute of limitations was not pled in these cases and

        the cases are irrelevant to the case before this court.

                  Appellee in its petition for forcible detainer at paragraph 198 states: "For

        purpose of application of statutes of limitation, cause of action can generally be

        said to "accrue" when wrongful act effects injury, regardless of when plaintiff

        learned of injury." Appellant, the statutes and case opinion agree with the accrual

        of action which was 3 days after Appellant received her 3 day notice to vacate,

        which was dated October, 12,2011.

                  What Puentes and Crawford state is that res judicata does not apply in cases

        in the justice court.        In other words, one can sue the same party as many times as

        one wishes, always attempting to receive a favorable order.

                  There was no "continuous tort" and the inference fails under its own weight.

        The legal status of the forcible detainer does not change once a foreclosure sale

        occurs and subsequent to the forcible detainer action, a 3 day notice to vacate

        issues. The forcible detainer's legal status does not change because a new notice to

        vacate issues. It remains the same from the first time he is served with a notice to

        vacate and refused, thus becoming a forcible detainer, and the trigger which

        accrues the action.


        8
            Clerk's Record page 40

                                                       9
>   '




                   In the instant case, Wells Fargo foreclosed on October 4, 20119.         On

        October 12, 2011, Brice, Vander Linden & Wernick, P.C., sent a certified letter to

        Colette M. Custer, on behalf of its client, Wells Fargo Bank, N.A., entitled

        "Demand to Vacate Premises". ,When Appellant refused to vacate the premises,

        she became a forcible detainer and her legal status has remained consistently the

        same since that time.

                   When presented with another "Demand to Vacate Premises", which was

        mailed on July 2, 2014, her legal status and position had not changed. The July 2,

        2014 letter is strikingly similar to the 2011 letter.

                  Forcible Detainer versus Tenant at Sufferance or Tenant in Arrears

                   There is a marked difference between a landlord - tenant suit for eviction

        and a landlord - forcible detainer suit for eviction. The differences are:

                                               1st Instance

                   A tenant who is renting or leasing a property has an obligation to pay rent

        and comply with the terms of the lease.          When this tenant fails to comply, the

        landlord gives a 3 day notice to vacate before he files a suit for eviction suit in the

        justice court of jurisdiction where the property is located.

                   The tenant has the option, before judgment, to comply with the delinquent

        terms of the lease, i.e., if the tenant is behind in rent and pays the delinquent



        9   Clerk's Record Pages 262-264

                                                    10
· .

      amount to the landlord before the landlord obtains an order to evict, (Writ of

      Possession), the tenant is restored to his legal capacity and can remain in the

      property.

            The landlord can file for forcible entry and detainer (FED), as often as the

      tenant is not compliant.   This is the reason that there is no res judicata in justice

      cases. The legislature has not put a finite number on the times a landlord can sue

      the same tenant.

                                          2nd Instance

            There are two rights involved with property ownership. One is right to title

      and one is right to possession.

            A former homeowner who has lost his right to title of the property through

      foreclosure has a different standing than he did when he held the right to title.

      This person became a tenant at will or sufferance, when the lien on his property

      was foreclosed.    He no longer holds title to the property and is a tenant at

      sufferance. Once the former owner of the property is served with a 3 day notice to

      vacate and refuses to leave the property, he becomes a forcible detainer. He does

      not have the option to pay back rent or to negotiate for better terms. He has lost his

      right to the property title in its entirety. He is now a forcible detainer and retains

      only the right to possession, which must be legally wrested from him.       His status




                                                11
,   '




        does not change unless there is an agreement between the new owner or the two

        parties have come to an agreement concerning the occupancy of the property.

               Once the demand to vacate the property within 3 days is made and the tenant

        at sufferance refuses to vacate, and the tenant becomes a forcible detainer, the new

        title holder of the property has 2 years from the date the former tenant becomes a

        forcible detainer to oust the forcible detainer.    Texas Civil Practice & Remedies

        Code §16.003. This limitation has been a Texas Statute since the beginning of the

        written law in Texas.

               It is folly to believe that in the case of a forcible detainer, a letter to vacate

        with a newer date changes the status or the circumstances of the action.            That

        theory obviously applies in the 1st Instance, but cannot be used in the 2nd Instance.

        The forcible detainer status did not begin anew with the arrival of a newly dated

        demand to vacate.       His status is exactly what it was once he received the first

        notice to vacate, that of a forcible detainer. Ergo, to find that the receipt of a letter

        reflecting a newer, later date somehow switched the forcible detainer to a tenant at

        sufferance and upon opening the letter, he is magically transformed into a forcible

        detainer anew is nonsensical.

               In point of fact, given the plethora of mortgage company foreclosures and

        the resulting evictions based on the foreclosure, it would behoove the Texas

        Supreme Court to promulgate a rule which considers an eviction in a mortgage


                                                   12
,   .


        company/forcible detainer case as final. Then, there would be no question about

        res judicata or accrual of action in these instances.     To treat the landlord/tenant

        relationship the same as a mortgage company/forcible detainer case only leads to

        confusion and ambiguity.

                                                 Laches

              Appellant asserts that the   4th   Forcible Detainer suit was barred by laches.

        Appellant asserts that Wells Fargo exercised unreasonable delay in asserting its

        legal or equitable rights, and Appellant, in good faith, relied on the 2 year statute

        of limitations and the October 16, 2011 accrual of action and made determinations,

        such as improvements and repairs, based on the change of position which occurred

        after the two years.    Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 80

        (Tex. 1989); Caldwell v. Barnes, 975 S.W.2d 535 (Tex.l998).

                                           State of Repose

              The current opinions in this court have left former home owners prey to

        continual, never ending litigation where forcible detainers suits are at issue.

              There is no question that the continual litigation could be construed to be a

        violation of one's rights under Art. 1, Sec. 3, 3a and Sec. 9 of the Texas

        Constitution. To allow a forcible detainer action to continue three years, four years

        or more after the foreclosure sale and first notice to vacate is a travesty of the law

        that should not be allowed.


                                                    13
      What this court has said is: Take as many shots as you want for as long as

you need, until the defendant gets worn out or worn down, or the courts uphold

your actions.   And what mortgage company, knowing of the court's decisions,

would ever pass up the opportunity to simply redate the notice to vacate and reset

the clock? Certainly not Wells Fargo!

      This is an intolerable abuse of the court's discretion.       The court has an

obligation to determine when an action accrued, and it shouldn't be a matter of

discretion to determine the date, it should be a matter of law. When did the action

begin which would allow a party to seek a legal remedy?

      According to case opinion, an action accrues once a wrongful act causes

some legal injury and the injured party has the right to sue. In the instant case, the

court cannot determine that the discovery rule applies or that the once the notice is

sent, the statute of limitations tolls. There can be no doubt that the action accrues

shortly after the notice to vacate is sent.      The mortgage company, after all,

foreclosed on the property and is well aware it must send the notice to vacate

before it can sue for forcible detainer. There is nothing to discover.

      To opine that every single letter that is sent begins the accrual of action over

again is counter intuitive to the law. There would never be a state of repose for the

one who is continually being sued.




                                          14
,   .

               The only justification the courts could cite would be, a new action has

        begun. That would be in contradiction to the law. Again, it is the same action, the

        same cause, the same foreclosure date, and the same plaintiff and defendant. How

        can the courts justify this kind of reasoning? From Appellant's perspective, only

        by applying unequal protection of the law, a violation of the Texas Constitution

        and Appellant's inviolate right to equal protection and open and fair courts.

               Appellant asserts that by ruling that every new notice to vacate sent is a new

        cause of action, the court is violating the spirit of the law and the rights embodied

        in the Bill of Rights of the Texas Constitution.

               Four exact same suits, having the same cause of action and naming the same

        parties each and every time is harassment and legal abuse.

               Had Appellant sued this many times on the same Issue with the same

        adverse results, he would be labeled a vexatious litigant even though the suits are

        all in justice court.

               By ruling as this court has ruled, to allow a mortgage company innumerable

        suits over a period of four years, to continually bring suit for the same issue from

        the same starting point, is the very definition of legal abuse.

                                           CONCLUSION

               Colette Custer's home was sold at foreclosure sale on October 4,2011. That

        is a fact. At that point, she became a tenant at sufferance. Wells Fargo did not


                                                   15
·   '




        suffer her for any length of time, as Wells Fargo issued a Demand to Vacate

        Premises letter on October 12, 2011. When Appellant received the demand and

        determined not to cede possession of the property, she became a forcible detainer.

        On October 16,2011, the action accrued, and Wells Fargo could seek redress in the

        courts.

                  A cause of action generally accrues at the time when facts come into

        existence authorizing a claimant to seek a judicial remedy. Murray v. San Jacinto

        Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990). In Texas, a Plaintiffs cause of

        action accrues, and the applicable limitations period starts to run, "when a

        wrongful act causes some legal injury, even if the fact of injury is not discovered

        until later, and even if all resulting damages have not yet occurred." S. v. v. R. V,

        933 S.W.2d 1,4 (Tex.1996).         See also Doe v. Catholic Diocese of El Paso, 362

        S.W.3d 707, 716 (Tex.App.-EI Paso 2011, no pet.)(same).

                  On October 16, 2011, Appellant became a forcible detainer, and that

        wrongful act caused a legal injury upon which Wells Fargo was authorized to seek

        a judicial remedy.

                  A party seeking possession of a property, files a suit for forcible detainer,

        which is an eviction suit, which is what Wells Fargo did in November of2011.

                  The process is designed to be speedy and efficient.      It not meant to be

        delayed for a process of years.


                                                    16
,   .

               During a 4 year period, Wells Fargo filed four eviction suits against the

        forcible detainer. Not once during the four years did Appellant's status change.

        She remained, from October 16, 2011 till now, a forcible detainer. Because she

        had been issued a demand to vacate, it was not necessary to send a second or third

        or fourth demand. The facts had not changed. She was in the same legal status in

        2014 as she was on October 16, 2011.

               Wells Fargo is or should be aware of the limitation statutes.             It knew or

        should have known that it had two years to legally obtain possession from

        Appellant, yet, on several of the trials, it didn't appear, or non-suited.           No one

        could attribute due diligence to those actions. Finally, after its   4th   suit and trial, the
               I



        judge, who carefully studied and understood the law of forcible detainer ruled that

        Wells Fargo was barred by expiration of statute of limitations. Further, Appellant

        asserts the   4th   suit was barred by laches.

               Judge Elea Diaz's opinion is the correct one, and Appellant asks this court to

        uphold the long, proud history of Texas law and rule in Appellant's favor.

                                                              Respectfully submitted,




                                                              Collette Custer
                                                              20433 Rita Blanca Circle
                                                              Pflugerville, Texas 78660



                                                         17
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                                CERTIFICATE OF COMPLIANCE

            I hereby certify that this document is typed in Times New Roman 14 point

      type and contains 3,938 words.


                                   CERTIFICATE OF SEvic
                                                       ,/~~             .

                  I, the undersigned, hereby certify that a true and correct copy of
      Appellant's Briefwas sent by U. S. Postal Service on September 22,2015 to:

            Suzanne Suarez
            P. O. Box 2869
            Addison, Texas 75001




                                            18
•   •




                  APPENDIX

        Judgment from Judge Todd T. Wong

                  June 1,2015




                       19
(   ,



                                                    No. C.l.CV.15-0004~6

        WELI.s FARGO BANK, N.A.                                 § 1NTHE COUNTY COURT
                 Plaintiff                                      §
                                                                §
        ~                                                       §
        COLETTE         M      CUSTER, SHANE G §
        STRE~TMAN              AND   ALL  OTHER § AT LAW NO. ONE
        OCCUPANTS OF 20433 RITA BLANCA §
        ClRCLE, PFLUGERVILLE, TX 78661J §
        Defendang.                      §
                                        §
                                                                § TRAVIS COUNTY, TEXAS




             This cause came on for eonsideratlonbefore this Coul'l. The Court, after· examining the verified
        pleadings on file .in this Cotltt. is of the opinion and fwds that:


           •    Plaintltl~ the current titleholder pursuant to a Special WaiTI~nl)' Deed delivered to it by Wells Fargo
                Bank. N.A., the purchaser of at the non-judicial foreclosure salt: on 1010412011;
            •   The   Deed of Trost authorizing the ~l~ provides that upon occurrence ofa non-,iudiciill foreclosure
                sBle,Defendilllt isto SttiTenderpoAsessiqn ~f the Property to the·'purchaser at that sale, or be deemed
                atenanhlt!lufferaneeartd may be removed bya wlit ofposscssion.

           •    Defendant is cun'ently in posses.c;ion oftbe Property.

            •   Plairttiffhas given Defendant a written notice to vacate and demand for possession. Sucb
                notice was sent at least three (3) or thirty (30) days prior-to this Complaint being filed;
           •    Defen.dant· has failed to vacate or surrender possession of the ).>rOperty.

        IT IS THEUrORE          ORDERED, ADJUDGED AND DEClUCED that:

            •   COLETrE M CllSIT'!.R, SHANE G STREEtMAN     and aU other occupants of 20433 RITA
                BLANCA CIRCLE, PFLUGERVD.LE; TX 78660, are guilty of foJ-cible detainer;   h
            Plaintifi'is entitled to immediate possession, the issuance of a writ of possession~                 and all
            costs of court.

            Supersedeas Bond Amouni$           z.~oO        !tL-.

        SIGNED this _-I~      \t.                    (
                                                      ~
                                       dIi.Yof_-..,.."T""' __   o.--                    .........J   2015.
