                                                                                     ACCEPTED
                                                                                 03-15-00261-CV
                                                                                         6750181
                                                                      THIRD COURT OF APPEALS
                                                                                 AUSTIN, TEXAS
                                                                             9/1/2015 3:42:02 PM
                                                                               JEFFREY D. KYLE
                                                                                          CLERK
                             NO. 03-15-00261-CV

                                                                 FILED IN
                          In the Third Court of Appeals   3rd COURT OF APPEALS
                                                              AUSTIN, TEXAS
                                 Austin, Texas            9/1/2015 3:42:02 PM
                                                            JEFFREY D. KYLE
                                                                  Clerk


                            DAVID YOUNG, APPELLANT

                                       v.

                        JP MORGAN CHASE BANK, APPELLEE


                   APPEAL FROM CAUSE NO. D-1-GN-12-000590
                126TH DISTRICT COURT OF TRAVIS COUNTY, TEXAS
                        HON. DARLENE BYRNE PRESIDING


                            APPELLANT’S BRIEF

 Stephen Casey
 Texas Bar No. 24065015
                                                       ORAL
 CASEY LAW OFFICE, P.C.                              ARGUMENT
 595 Round Rock West Drive                           REQUESTED
 Suite 102
 Round Rock, Texas 78681
 Telephone: 512-257-1324
 Fax: 512-853-4098
 info@caseylawoffice.us

Counsel for Appellant
David Young




                                        i
             STATEMENT REGARDING ORAL ARGUMENT
      Appellant believes this Court can reverse and remand this case based on the

record. Should the Court desire oral argument, Appellant is ready to participate.




                                         ii
IDENTIFICATION OF PARTIES AND COUNSEL

Appellant                       Trial and Appellate Counsel for Appellant
T. David Young
                                (Trial)
                                Mark Cohen
                                805 W. 10th Street, Suite 100
                                Austin, TX 78701

                                (Appellate)
                                Stephen Casey
                                Casey Law Office, P.C.
                                595 Round Rock West Drive
                                Suite 102
                                Round Rock, Texas 78681
                                Phone: 512-257-1324

Appellee                        Trial and Appellate Counsel for Appellees

JP Morgan Chase Bank            (Trial)
                                Scott King Field
                                Kent E. Wymore IV
                                The Field Law Firm, PLLC
                                5910 Courtyard Drive, Suite 255
                                Austin, Texas 78759

                                (Appellate)
                                Marcie L. Schout
                                Quilling, Selander, Lownds,
                                Winslett, & Moser, P.C.
                                2001 Bryan Street, Suite 1800
                                Dallas, TX 75201
                                mschout@qslwm.com




                          iii
                                            TABLE OF CONTENTS


INDEX OF AUTHORITIES ................................................................................ 1

STATEMENT OF THE CASE ............................................................................ 1

ISSUE PRESENTED ............................................................................................ 1

1.        Under Texas law, whether time is of the essence is a fact issue.
          Further, time is not of the essence of a contract unless (1) the
          contract explicitly states such, or (2) the nature of the contract
          demands it. With neither condition present below, and the delay
          involved Chase’s unclean hands, should the trial court’s
          summary judgment be reversed? .................................................................... 1

STATEMENT OF FACTS .................................................................................... 2

     Young is sued under TRCP 736 and makes a counterclaim. ............................... 2
     Young and Chase enter into a settlement agreement requiring
     Chase to do “any and all” reasonable further act to “consummate”
     the sale. ................................................................................................................. 2

     The loan cannot fund on time due to an non-waivable federal law. .................... 3
     Chase is sent a request for a new payoff letter to consummate the
     sale. ....................................................................................................................... 3

     Chase refuses to send a new payoff letter in order to consummate
     the sale. ................................................................................................................. 4

SUMMARY OF THE ARGUMENT ................................................................... 4

STANDARD OF REVIEW ................................................................................... 4

ARGUMENT .......................................................................................................... 5


                                                                 iv
1.      Time is never of the essence in a contract unless it is
        (1) expressly stated, or (2) the nature of the contract
        demands it. Here, neither condition existed. ..................................... 5

        a.       There was no explicit statement that time was of
                 the essence, and the nature of the contract did
                 not require such performance, even though
                 stated. ................................................................................................. 7

        b.       Nothing in the nature or the purpose of the
                 contract, or the circumstances surrounding it,
                 required the date of August 1 as the date of
                 performance. .................................................................................... 7

2.     Chase’s unclean hands should prevent it from reaping
       a windfall here because it refused to provide a payoff
       in order for Young to comply with the non-waivable
       three-day right of rescission. ................................................................... 9

CONCLUSION .................................................................................................... 11

CERTIFICATE OF COMPLIANCE ................................................................ 12

CERTIFICATE OF SERVICE .......................................................................... 12




                                                           v
                                       INDEX OF AUTHORITIES
Cases

Argos Resources, Inc. v. May Petroleum, Inc.,
       693 S.W.2d 663 (Tex. App.—Dallas 1985, writ ref'd n.r.e.) .......................... 7

Builders Sand, Inc. v. Turtur,
       678 S.W.2d 115 (Tex. App.—Houston [14th Dist.] 1984,
       no writ) ............................................................................................................ 7

Diversicare Gen. Partner, Inc., v. Rubio, 185 S.W.3d 843 (Tex. 2005)............................. 5

Dunnagan v. Watson, 204 S.W.3d 30, 41 (Tex. App.—Fort Worth
      2006, Pet. Denied) ........................................................................................ 10

Fox v. O'leary, 2012 Tex. App. Lexis 5714 (Tex. App.—Austin
       July 10, 2012). ............................................................................................... 10

Ganz v. Lyons Pshp., L.P., 961 F. Supp. 981, 986 (N.D. Tex.
      1997) ............................................................................................................... 8

Herbert v. Herbert,
       754 S.W.2d 141 (Tex. 1988). .......................................................................... 5

Hing Bo Gum v. Nakamura,
      549 P.2d 471 (Haw. 1976) .............................................................................. 6

In Re Francis,
       186 S.W.3d 534 (Tex. 2006). ........................................................................ 10

In Re: Theresa Caballero, Relator,
       441 S.W.2d 574 (Tex. App.—El Paso 2014, no pet.) ..................................... 8

Laredo Hides Co., Inc. v. H & H Meat Products Co., Inc.,
       513 S.W.2d 210 (Tex. Civ. App.—Corpus Christi 1974,
       writ ref'd n.r.e.) ........................................................................................... 6, 7

Lockhart-Hutchens v. Bergstrom,
      434 S.W.2d 453 (Tex. Civ. App.—Austin 1968, writ ref'd
      n.r.e.) ....................................................................................................... 6, 7, 8
                                                              1
Meisler v. Smith,
       814 F.2d 1075 (5th Cir. Tex. 1997) ................................................................ 6

Seismic & Digital Concepts, Inc. v. Digital Resources Corp.,
       590 S.W.2d 718 (Tex. Civ. App.—Houston [1st Dist.]
       1979, no writ) .................................................................................................. 7

Shaw v. Kennedy, Ltd.,
      879 S.W.2d 240 (Tex. App.—Amarillo 1994, no writ) .................................. 7

Siderius, Inc. v. Wallace Co.,
        583 S.W.2d 852 (Tex. App.—Tyler, 1979) ................................................ 6, 8

Valence Operating Co. v. Dorsett,
       164 S.W.3d 656 (Tex. 2005) ........................................................................... 5




                                                            2
                             STATEMENT OF THE CASE


Nature of the Case:                 This suit involves a home equity loan, CR.4-7,
                                    that ended in a settlement, CR.220-227 and,
                                    inter al., an alleged breach of contract claim
                                    arising from the settlement agreement.
                                    CR.97-99.

Course of Proceedings:              The parties settled out the case. A dispute
                                    arose during the execution of the signed
                                    settlement agreement. The trial court
                                    awarded summary judgment on an alleged
                                    breach of that agreement. CR.350-352.

Trial Court’s Disposition:          The district court signed a final order on
                                    February 5, 2015. CR.350-52. Appellant
                                    timely filed a motion for new trial. CR.353-
                                    61. The trial court requested subsequent
                                    briefing on the motion for new trial. CR.362-
                                    76. The trial court, after briefing, denied the
                                    motion. CR.378. Appellant timely filed a
                                    notice of appeal. CR.380-81.




                                ISSUE PRESENTED


   1. Under Texas law, whether time is of the essence is a fact issue.
      Further, time is not of the essence of a contract unless (1) the
      contract explicitly states such, or (2) the nature of the contract
      demands it. With neither condition present below, and the delay
      involved Chase’s unclean hands, should the trial court’s
      summary judgment be reversed?




                                        1
                           STATEMENT OF FACTS

Young is sued under TRCP 736 and makes a counterclaim.

      On December 19, 2000, Young made a home equity loan with Long Beach

Mortgage Company. CR.4. After an alleged default, CR.5, Chase attempted to

foreclose via TRCP 736. CR.4-5. Young counterclaimed for declaratory relief and

raised defenses of limitations and res judicata. CR.19-20. The property is Young’s

homestead. CR.322.

Young and Chase enter into a settlement agreement requiring Chase
to do “any and all” reasonable further act to “consummate” the sale.

      During the course of the litigation, Young and Chase entered into a

settlement agreement whereby Young would procure a refinance of the mortgage

lien and pay off the lien. CR.32-51. This was April 9, 2014. Id. The settlement

agreement requires both parties to take all actions “reasonably necessary” that may

be needed to “consummate” the transaction, even actions beyond those specified in

the agreement. CR.35. The section reads (with bold title in original):

            12. Further Acts. In addition to the acts recited in this
      Agreement, the parties agree to perform, or cause to be performed on
      the date of this Agreement, or thereafter, any and all such further acts
      as may be reasonably necessary to consummate the transactions
      contemplated in this Agreement.
Id.




                                          2
The loan cannot fund due to a non-waivable federal law.

      As part of that agreement, the parties negotiated a date of August 1, 2014,

for the date of payoff. CR.33. Young was unable to make that date. On July 29,

2014, prior to the deadline, Young requested a payoff through August 31, 2014.

CR.54. Young’s realtor, Terie Bradford, whose affidavit was submitted in response

to Chase’s summary judgment motion, explains the delay. CR.320-21. She

identifies that her first appraisal for the property for the loan review process

differed greatly from her second appraisal. CR.320. The lower second appraisal

required a delay in loan processing. Id. Because federal law mandated a non-

waivable three-day right of rescission, an updated payoff was requested from

Chase. CR.320. She was ready to close on July 31, 2014, but due to the federal

mandate the loan would not fund before the right of rescission expired on August

4, 2014. Id. The extension needed was only five days. Id. This was pleaded before

the Court in Young’s Third Amended Petition. CR.160.

Chase is sent a request for a new payoff letter to consummate the sale.

      Chase was notified of the problem on two occasions. CR.251-52. The first

was prior to the deadline. CR.251 (July 29 email). The second was August 5,

2015. CR.252.




                                       3
Chase refuses to send a new payoff letter in order to consummate the
sale.

      On August 5, 2014, after the deadline, Chase responded. CR.252. It refused

to send a payoff letter. Id. It also refused to grant a brief extension. CR.252.

Young’s attorney, in an email, attempted to point out to Chase that it was acting

inequitably with unclean hands by refusing to extend the deadline. CR.260.


                      SUMMARY OF THE ARGUMENT
      The lower court failed to properly apply Texas law regarding construction of

the settlement agreement. Time is never of the essence unless explicitly stated or

the nature of the agreement demands it. Neither condition was present here.

      Further, Chase’s own failure to provide a payoff when requested contributed

any alleged breach; thus, they come to this Court with unclean hands and should

not be awarded a windfall. By refusing to conduct a further act that would permit

consummating the transaction, and because time was not of the essence, Chase

should not profit.


                            STANDARD OF REVIEW

      The review of summary judgment is de novo. See Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A reviewing court on summary judgment

does not presume the judgment is correct. See Diversicare Gen. Partner, Inc., v. Rubio,

185 S.W.3d 843, 846 (Tex. 2005). The court examines the “entire record in the


                                          4
light most favorable to the nonmovant, indulging every reasonable inference and

resolving any doubts against the motion.” City of Keller v. Wilson, 168 S.W.3d 802,

824 (Tex. 2005).


                                     ARGUMENT

         The lower court ignored the factual nature the issue presented demands (i.e.,

inappropriate for summary judgment), failed to properly apply Texas law

regarding construction of the settlement agreement, and permitted Chase’s unclean

hands to bring it a windfall. These points will be addressed in order.


1.       Time is never of the essence in a contract unless it is (1)
         expressly stated, or (2) the nature of the contract demands it.
         Here, neither condition existed.
         “It is settled that time is not the essence” in a land conveyance contract “in

which the purchase money is to be paid at a future day.” Lockhart-Hutchens v.

Bergstrom, 434 S.W.2d 453, 456 (Tex. Civ. App.—Austin 1968, writ ref’s n.r.e.).

This Court’s well-reasoned opinion in Lockhart-Hutchens has been cited by the Tyler

Court of Appeals in 1979, the federal Fifth Circuit Court of Appeals in 1997, and

even by the Hawaii Supreme Court in 1976. See Siderius, Inc. v. Wallace Co., 583

S.W.2d 852, 864 (Tex. App.—Tyler, 1979); see also Meisler v. Smith, 814 F.2d 1075,

1081 (5th Cir. Tex. 1997); Hing Bo Gum v. Nakamura, 549 P.2d 471, 475 (Haw.

1976).

         Time is not of the essence of a contract unless the contract explicitly makes it

                                             5
so or the contract is of such a nature or purpose that it indicates the parties'

intention that they must perform the contract at or within the time specified. Laredo

Hides Co., Inc. v. H & H Meat Products Co., Inc., 513 S.W.2d 210, 216 (Tex. Civ.

App.—Corpus Christi 1974, writ ref'd n.r.e.); Siderius, Inc., 583 S.W.2d at 863; see

also Shaw v. Kennedy, Ltd., 879 S.W.2d 240, 246 (Tex. App.—Amarillo 1994, no writ)

(holding that time of performance is not a material term of an agreement).

       Texas courts hold that even designation of a particular date for performance

does not, of itself, indicate time is of the essence. Seismic & Digital Concepts, Inc. v.

Digital Resources Corp., 590 S.W.2d 718, 720 (Tex. Civ. App.—Houston [1st Dist.]

1979, no writ); Builders Sand, Inc. v. Turtur, 678 S.W.2d 115, 118 (Tex. App.—

Houston [14th Dist.] 1984, no writ); Argos Resources, Inc. v. May Petroleum, Inc., 693

S.W.2d 663, 664-65 (Tex. App.—Dallas 1985, writ ref'd n.r.e.).

       “[A]ny intention to make time of the essence must be clearly

manifested in the contract.” Shaw, 879 S.W.2d at 246 (emphasis added). “The

fact that [a] contract states a date for performance does not, of itself, mean that

time is of the essence.” Argos Res., Inc., 693 S.W.2d at 664-65 (quoting Laredo Hides

Co., Inc., 513 S.W.2d at 217). In order to make time of the essence, a contract must

so provide by express stipulation or there must be something in the nature of the

subject matter or connected with the purpose of the contract and the circumstances

surrounding it which makes it apparent that the parties intended that the contract

be performed at or within the time specified. Laredo Hides Co., Inc., 513 S.W.2d at
                                       6
216.

       In addition, when a contract does not expressly provide time is of the essence

as here, the issue of whether time was of the essence is a fact issue. Lockhart-Hutchens,

434 S.W.2d at 456 (collecting cases); Siderius, Inc, 583 S.W.2d at 863; In re: Theresa

Caballero, Relator, 441 S.W.2d 574 (Tex. App.—EI Paso 2014, no pet.).

       This case should not have been decided on summary judgment. Accord Ganz

v. Lyons Pshp., L.P., 961 F. Supp. 981, 986 (N.D. Tex. 1997) (citing to Lockhart-

Hutchens, “[I]t is a question for the jury unless the contract expressly makes

time of the essence, or the subject matter of the contract is such that the court may

take judicial notice of the fact that the parties obviously intended for time to be of

the essence.”) (emphasis added).

       At worst, this Court should reverse this case simply upon the standard of

review.

       a.    There was no explicit statement that time was of the
             essence, and the nature of the contract did not require such
             performance, even though stated.
       The contract, in its entirety, is listed in the Clerk’s record. See CR.220-27. At

no point does it mention that time is of the essence. This case should be reversed

on summary judgment as a matter of law construed on review against Chase, the

Appellee, per the standard of review.

       b.    Nothing in the nature or the purpose of the contract, or the
             circumstances surrounding it, required the date of August 1
             as the date of performance.
                                           7
      First, the contract was not “in nature” or “in purpose” time dependent. It

was a settlement agreement. CR.220-27. It was made between private parties. No

third party’s dependence on some specified action of the signatories is mentioned.

The agreement facilitated a home belonging to Young to be kept by Young with

payments still going to Chase. Id. There is nothing inherent about settlement

agreements (i.e., in their nature) that demanded performance by August 1. If there

is any doubt, it resolves against Chase, the Appellee (and movant below), in

accordance with the standard of review.

      Second, the circumstances of the agreement itself contemplated that

dismissal documents might be filed at an indefinite time in the future. “Within

fourteen (14) days of fully executing this Agreement, the Lawsuit will be abated

until August 1, 2014, or until dismissal documents are filed with the

Court.” CR.221 at ¶ 1.2 (emphasis added). This plainly could have taken much

longer, even until the end of August or beyond, to file dismissal documents. No

time period is specified. If there is any doubt, it resolves against Chase, the

Appellee (and movant below), in accordance with the standard of review.

      Further, Section 1.2.1, even following that, contemplates the potential of

some delay as the parties exchange dismissal documents which, once signed, were

to be sent “to the designated title company to hold in trust until payment of the

Settlement Funds.” The circumstances of the agreement thus do not contemplate a

time frame that would prohibit a few days on the performance of the refinance. If


                                          8
there is any doubt, it resolves against Chase, the Appellee (and movant below), in

accordance with the standard of review.


2.    Chase’s unclean hands should prevent it from reaping a windfall
      here because it refused to provide a payoff in order for Young to
      comply with the non-waivable three-day right of rescission.

      Specific performance, the remedy awarded Chase, is an equitable remedy.

See BLACK’S LAW DICTIONARY at 1435 (8th ed.). In order to invoke an equitable

remedy, one must come to the court with clean hands (i.e., the “clean hands”

doctrine. “The clean hands doctrine requires that one who seeks equity, does

equity. Equitable relief is not warranted when the plaintiff has engaged in unlawful

or inequitable conduct with regard to the issue in dispute.” In re Francis, 186 S.W.3d

534, 551 (Tex. 2006). To invoke the clean hands doctrine, the party asserting the

doctrine must be seriously harmed which cannot be corrected without asserting the

doctrine. See Dunnagan v. Watson, 204 S.W.3d 30, 41 (Tex. App.—Fort Worth 2006,

pet. denied).

      As this Court stated in Fox v. O'Leary, “[t]he doctrine of "unclean hands" bars

equitable relief sought by "one whose conduct in connection with the same matter

or transaction has been unconscientious, unjust, or marked by a want of good faith,

or one who has violated the principles of equity and righteous dealing.” 2012 Tex.

App. LEXIS 5714, *15-16 (Tex. App.—Austin July 10, 2012).


                                          9
      Here, Young’s complaint is Chase, by its inaction, failed to send a payoff

letter when requested because of an unwaivable 3-day right of rescission period

imposed by federal law. CR.313-19 (Young’s MSJ response); CR.320-21 (affidavit

of loan officer that it was not customary for Chase to refuse to send a new payoff

letter); CR.322-23 (affidavit of Young that unwaivable federal right of rescission

prevented closing until shortly after August 1).

      Chase’s reply misdirected the trial court in discussing option periods,

inapplicable here. CR.336-37. Their motion then attempts to reference a case

where the deadline had a cure period (not like this contract); again, a misdirection.

CR.337. Next, Chase references a third case in which the parties made an

extension on a performance deadline; again, a misdirection. CR.339. This case did

not have an option, did not have a cure period, and there was no extension; in fact,

had there been a cure period or an extension, Young would have been able to fund

the loan.

      Chase then attempts to excuse its unclean hands. Unfortunately, the

language of the agreement serves as Chase’s own indictment:

             12. Further Acts. In addition to the acts recited in this
             Agreement, the parties agree to perform, or cause to be performed
             on the date of this Agreement, or thereafter, any and all such
             further acts as may be reasonably necessary to consummate the transactions
             contemplated in this Agreement.

CR.223 (italics added)


                                            10
             This section, while including all of the other responsibilities of the

agreement, on its face contemplates that the parties “agree to perform”—

disjunctive from the following “or cause to be performed . . . .”—anything that

would be “reasonably necessary” to accomplish the settlement. The payoff date

was only going to be extended by three days.

      Would “any and all such further acts” that “may be reasonably necessary”

that Chase “agree[d] to perform” include merely sending a payoff letter? Yes!

      Is it inequitable for Chase not to send it? Yes.

      Is this a hardship for Young? Yes.

      This house is Young’s home. It’s a home equity lien. Young must now face

being without a home, and subsequent eviction. Chase has unclean hands and

should not be permitted a windfall, the house, simply for failing to send a letter that

would permit complying with federal law. If there is any doubt, it resolves against

Chase, the Appellee (and movant below), in accordance with the standard of

review.

                                  CONCLUSION

For the foregoing reasons, Appellant asks the Court to:

          Ø Reverse this case and render judgment in favor of Young because time
             was not of the essence;

          Ø Reverse any award of attorney’s fees;

          Ø Award Young any and all relief to which he is entitled in law or

                                           11
            equity.

                                      Respectfully submitted,

                                      /s/ Stephen Casey

                                      Stephen Casey
                                      Texas Bar No. 24065015

                                      595 Round Rock West Drive, Suite 102
                                      Round Rock, Texas 78681
                                      Telephone: 512-257-1324
                                      Fax: 512-853-4098
                                      info@caseylawoffice.us

                      CERTIFICATE OF COMPLIANCE

      The preceding brief contains 2,431 words within the sections identified
under Tex. R. App. P. 9.4, typed upon Microsoft Word for Mac 2011, Baskerville
14 point font.

                                             /s/ Stephen Casey
                                             Stephen Casey


                        CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the foregoing brief and

accompanying Appendix has been served on all parties to the trial court judgment

on Thursday, August 27, 2015, efile and/or facsimile transmission:


Marcie L. Schout
Quilling, Selander, Lownds,
Winslett, & Moser, P.C.
2001 Bryan Street, Suite 1800
Dallas, TX 75201                             /s/ Stephen Casey
mschout@qslwm.com                            Stephen Casey


                                        12
                             NO. 03-15-00261-CV


                          In the Third Court of Appeals
                                 Austin, Texas



                            DAVID YOUNG, APPELLANT
                                       v.

                        JP MORGAN CHASE BANK, APPELLEE


                   APPEAL FROM CAUSE NO. D-1-GN-12-000590
                126TH DISTRICT COURT OF TRAVIS COUNTY, TEXAS
                        HON. DARLENE BYRNE PRESIDING


                          APPELLANT’S APPENDIX

 Stephen Casey
 Texas Bar No. 24065015

 CASEY LAW OFFICE, P.C.
 595 Round Rock West Drive
 Suite 102
 Round Rock, Texas 78681
 Telephone: 512-257-1324
 Fax: 512-853-4098
 info@caseylawoffice.us

Counsel for Appellant
David Young




                                        i
                                     TABLE OF CONTENTS

1. Copy of final judgment ................................................................................. Tab A
2. Copy of Settlement Agreement .................................................................... Tab B




                                                       ii
TAB A
                                       DC          BK 15037 PG293

                                                                                 Filed in The District Court
                                                                                  of Travis County, Texas

                                                                                       FEB 05 2015
                               CAUSE NO. D-1-GN-12-000590                        At         f) '.-8/       I.£.M.
                                                                                 Velva L. Price, District Clerk
 JPMORGAN CHASE BANK N.A.                      §                          IN THE DISTRICT COURT
     Plaintiff,                                §
                                               §
 v.                                            §                          200th JUDICIAL DISTRICT
                                               §
 THOMAS D. YOUNG A/KIA T.                      §
 DAVID YOUNG, A SINGLE MAN,                    §
      Defendant.                               §                          TRAVIS COUNTY, TEXAS


                    AMENDED ORDER GRANTING PLAINTIFF'S
                 TRADITIONAL MOTION FOR SUMMARY JUDGMENT


       Before the Court is the Traditional Motion for Summary Judgment ("Motion") filed by

JPMorgan Chase Bank, N.A., individually and as mortgage servicer for Deutsche Bank National

Trust Company f/k/a Bankers Trust Company of California, N.A. as Trustee for Long Beach

Mortgage Loan Trust 2001-1, ("Plaintiff'). Based on the Motion-including supporting briefs

and exhibits, any response or reply, the record, this Court's prior opinions and rulings, and the

applicable law, the Court finds the Motion should be in all respects GRANTED.

       It is hereby ORDERED, ADJUDGED, AND DECREED that Plaintiff is granted

judgment against Thomas D. Young a/k/a T. David Young (the "Borrower") for judicial

foreclosure as contemplated by the unambiguous terms of the Compromise Settlement

Agreement and Release of Claims ("Settlement Agreement") as follows:

       (a)    Plaintiff is hereby granted specific performance and Borrower is ORDERED to

              sign and return the Agreed Judgment incorporated as Exhibit C to the Settlement

              Agreement;

       (b)      Plaintiff is hereby GRANTED in rem judgment against Borrower for foreclosure

                as specified in the Texas Home Equity Security Instrument ("Security



AMENDED ORDER                                                                                       PAGE   1

                                                                    350
                                         DC        BK15037 PG294




                Instrument"), which encumbers property commonly known as 10336 West

                Darleen Drive, Leander, Texas and Settlement Agreement;

       (c)    the Security Instrument is hereby foreclosed and the Property shall be sold by

                Sheriff or Constable pursuant to Texas Rule of Civil Procedure 309;

       (d)    the proceeds of the sale shall be applied in payment of the amounts due to

                Plaintiff;

       (e)      Plaintiff, or its assigns, are permitted to become a purchaser at the foreclosure

                sale; and

       (f)    the Borrower and all persons claiming under him, after foreclosure of the Security

                Instrument, whether lien claimants, judgment creditors, claimants arising under

              junior deeds of trust, purchasers, encumbrances or otherwise, are hereby barred

              and foreclosed from all rights, claims, interest or equity of redemption in the

                Property and every part of the Property;

       (g)    Plaintiff is hereby awarded reasonable attorneys' fees against the Borrower;

       (h)      Plaintiff is hereby awarded taxable court costs and disbursements herein against

              the Borrower; and

       (i)    Plaintiff is hereby awarded summary judgment on the Borrower's counterclaim

              for declaratory judgment, and that Borrower take nothing from this lawsuit.

       It is further ORDERED, ADJUDGED, AND DECREED that Plaintiff is hereby granted

in rem judgment against the JonKer, David Newman, and Equity Liaison Company, LLC (the

"Purported Junior Lienholders") as follows:

       (a)      Plaintiff has a valid and superior lien on the Property as evidenced by the Security

                Instrument;




AMENDED ORDER                                                                                PAGE2

                                                                   351
                                        DC      BK15037 PG295




       (b)    the Deed of Trust is hereby foreclosed pursuant to TEXAS RULE OF CIVIL

              PROCEDURE 309 and judgment be made for the sale of the Property according to

              law by the Sheriff; and

       (c)    the Purported Junior Lienholders, and all persons claiming under them, after

              foreclosure of the Security Instrument, whether lien claimants, judgment

              creditors, claimants arising under junior deeds of trust, purchasers, encumbrances

              or otherwise, are hereby barred and foreclosed from all rights, claims, interest or

              equity of redemption in the Property and every part of the Property.

       All relief not expressly granted in this Order is hereby DENIED. This Order constitutes a

final judgment and is immediately appealable.



SIGNED thisQ__ day of        ±=e. b             '2015.




Agreed to and entry requested by:

  Is/ Rachel Lee Hvtken
WM. LANCE LEWIS
Texas Bar No. 12314560
RACHEL LEE HYTKEN
Texas BarNo. 24072163
QUILLING, SELANDER, LOWNDS,
  WINSLETT & MOSER, P.C.
2001 Bryan Street, Suite 1800
Dallas, Texas 75201
(214) 871-2100 (Phone)
(214) 871-2111 (Fax)

ATTORNEYS FOR PLAINTIFF




AMENDED ORDER                                                                              PAGE3

                                                                352
TAB B
                                                                           8/13/201410:19:51 AM
                                                                                  Amalia Rodriguez-Mendoza
                                                                                               District Clerk
                                                                                               Travis County
                                                                                            D-1-GN-12-000590


      COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS

      This Compromise Settlement Agreement and Release of Claims (the "Agreement") is
made between 'fhomas D. Young afk!a T. David Young ("Young") and JPMorgan Chase Bank,
N.A. ("JPMC"), individually and as attomey-in~fact for Deutsche Bank National Trust
Company, formerly known as Bankers Trust Company of California, N.A. as Trustee for Long
Beach Mortgage Loan Trust 2001- I .

       WHEREAS, on or about December 19, 2000, Young executed a Texas Home Equity
Note (the "Note") payable to Long Beach Mortgage Company in the original principal amount of
$337,500.00;

        WHEREAS, on or about December 19, 2000, simultaneously with the execution of the
Note, Young executed a Texas Home Equity Security lnstrument ("Security Instrument")
(collectively the "Note" and "Security Instrument" comprise the "Loan") which granted a Hen
interest (the "Deutsche Bank Lien") on property located at 10336 West Darleen Drive, Leander,
Texas 78641, more particularly described as:

               Lot 52, Trails End, Lake Travis Subdivision, a Subdivision in
               Travis County, Texas, According to the Map or Plat of Record in
               Volume 4, Page 331, Plat Records of Travis County, Texas (the
               "Property");

       WHEREAS, Long Beach Mortgage Company executed an Assignment of Lien to
Deutsche Bank National Trust Company f!k/a Bankers Trust Company of California. N.A as
Trustee for Long Beach Mortgage Loan Tn1st 2001-1 ("Deutsche Bank");

        WHEREAS, on or about February 29, 2012, Cause No. D-lHGN-12-000590 was filed in
the 200th District Court of Travis County, Texas against Young to obtain a judicial order of sale
against the Property, and Young claimed the foreclosure was barred by the Statute of Limitations
and that the Deed of Trust was unenforceable pursuant to Article XVI Section 50 of the Texas
Constitution (the "Lawsuit");

        WHEREAS, the parties now wish to avoid the risk,. uncertainty, and cost of litigation, and
desire to compromise and settle all claims and causes of action which the parties hold or may
hold, upon the terms and provisions set forth below;

        NOW, THEREFORE, in consideration of the above~stated premises, the mutual promises
and agreements contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and as materia! conditions hereof: the parties
agree to the following terms and conditions tor settlement of these matters.




CONFIDENTIAL SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS                                PAGE 1 OF8




                                                                                                        32
    1. Consideration and Release.

        1.1     Young agrees to sell or obtain a 3rd party take..out refinance of the indebtedness
                secured by the Deutsche Bank Lien on or before August i, 2014, and Deutsche
                Bank agrees to accept a short payoff of the Loan in the amount of $220,000 on or
                before August l, 2014 ("Settlement Funds"). Specifically, Young has designated
                the title company Netco, Inc., 7719 Wood Hollow Drive Ste. 157, Austin, TX
                78731 ("Title Company") and escrow officer Dewayne Naumann (''Escrow
                Agent") to close the sale or refinance of the Property. Upon closing of the
                Property sale or refinance, Young agrees that the Escrow Agent shaH promptly
                distribute $220,000 of the sale or 3rd party take..out refinance proceeds
                {"Settlement Funds") to Deutsche Bank c/o Wm. Lance Lewis, QSLWM, P.C.,
                2001 Bryan Street, Suite 1800, Dallas, Texas 75201.

                LLl     Deutsche Bank will deliver its closing instructions in the form labeled as
                        Exhibit A (the ''Closing Instructions") to Escrow Agent. As indicated in
                        the Closing Instmctions, Deutsche Bank will execute and deliver a fhH
                        release of the Deutsche Bank Lien to the Escrow Agent at 7719 Wood
                        Hollow Drive Ste. 157, Austin, TX 78731 within fourteen (14) days of
                        receipt of the Settlement Funds. The Escrow Agent win record a copy of
                        the release of lien in the official real property records of Travis County,
                        Texa.->.

        L2      Within fourteen (14) days of fully executing this Agreement, the Lawsuit \ViU be
                abated until August 1, 2014, or until djsmissal documents are filed with the Court.

                1.2.1   Upon and conditioned on receipt of the Settlement Funds in accordance
                        with Paragraph 1.1, the Lawsuit will be dismissed with prejudice, with
                        each party bearing its own costs. Counsel for Deutsche Bank and JPMC
                        will return the signed dismissal documents, attached collectively as
                        Exhibit B, to the designated title company to hold in trust until payment of
                        the Settlement Funds. Counsel for Young will tile the dismissal
                        documents with the Court and send counsel for Deutsche Bank and JPMC
                        a conformed copy of the order.

                1.2.2   If Young fails to tender the Settlement Funds in accordance with
                        Paragraph 1.1, Young agrees that Deutsche Bank shaH have judgment for
                        foreclosure. Young, through and under his attorney, will sign and return a
                        copy of a judgment for foreclosure under the Texas Home Equity Security
                        Instrument in the form attached as Exhibit C no later than August 8, 2014
                        to JPMC, c/o Wm. Lance Lewis, QSLWM, P.C., 2001 Bryan Street, Suite
                        1800, Dallas, Texas 75201.



CONFIDENTIAL SETTLEl\'lliNT AGREE.!MENT AND RELEASE OF CLAIMS                            PAGE 2 OF8




                                                                                                       33
        1.3    Young shall maintain his current hazard insurance policy, or an equivalent policy,
               and he is otherwise responsible for keeping the improvements now existing or
               hereafter erected on the Property insured against loss by fire, flood or any other
               hazards.

        1.4    For and in consideration of the promises as provided in this Agreement and other
               good and valuable consideration, Young hereby forever and completely releases,
               acquits, and discharges JPMC and Deutsche Bank, as weU as their respective
               predecessors, successors, and assigns, past and present officers, directors, agents,
               employee, subsidiaries, affiliates, and attorneys-including but not limited to
               Quilling, Selander, Lownds, Winslett and Moser, P.C., Wm. Lance Lewis and
               Rachel Lee Hytken, from any and aU claims, counterclaims, defenses, causes of
               action, liabilities, interest, costs, expenses, attorneys' tees, or other damages of
               any kind or character, whether existing by statute, or at common law, accrued or
               unaccrued, direct or contingent, known or unknown, arising out of, or in any way
               asserted in, or which might have been asserted in, or which relates to, directly or
               indirectly the Loan, the Lien, the Property, or any other facts that were alleged or
               could have been alleged by Young in the Lawsuit.

        1"     Provided Deutsche Bank receives the Settlement Funds on or before August l,
               2014, for and in consideration ofthe aforementioned promises, Young's release
               of Deutsche Bank and JPMC, and other good and valuable consideration, JPMC
               and Deutsche Bank forever and completely release, acquit, and discharge Young
               from any claims asserted in the Lawsuit. If, however, Deutsche Bank does not
               receive the Settlement Funds on or before August I, 2014, JPMC and Deutsche
               Bank will not release their claims asserted in the Lay,'suit, and they shall have
               judgment for judicial foreclosure.

        I ,6   The parties represent and warrant they are the sole owners and holders of the
               claims released herein and that they have not sold, assigned, conveyed, or in any
               way transferred any of their rights in and to any of such claims and causes of
               action to any third party.

        l. 7   Both Parties hereby acknowledge the sufficiency of the consideration provided in
               this Agreement

2.       Compromise and Intention of Parties. 'The Parties agree, as among them, that this is a
c,ompromise, resolution, and settlement of disputed claims and that such compromise, resolution,
satisfaction, and settlement shall not be taken as an admission of liability, but rather, such
liability has been expressly denied by the parties. No promise or inducement has been offered
except as set fbrth herein. This Agreement is executed without reliance upon any oral, written,




CONFlDEN11AL SETTLEMENT AGREEMENT A.'-10 REW.<\SE OF CLAIMS                             PAGE30F8




                                                                                                      34
express or implied representations, statements, promises, warranties, or other inducement of any
nature or sort made by any person or party hereto, other than as is expressly set forth herein.

3.     Binding Effect. This Agreement shaH inure to the benefit of, and shaH be binding upon,
the undersigned Parties and their respective heirs, executors, administrators, trustees, and
successors.

4.     Governing Law. This Agreement shaH be governed by and construed in accordance
with the laws ofthe State ofTe.xas.

5.      Voluntary Agreement Each of the parties acknowledges that this A&rreement has been
executed freely and voluntarily, without economic compulsion, and with full knowledge of its
legal significance and consequences.

6.      Severability. This Agreement is intended to be severable. [f any term, covenant,
condition or provision hereof is illegal, invalid, or unenforceable for any reason whatsoever, such
iHegality, invalidity, or unenforceability shall not affect the legality, validity, or enforceability of
the remaining parts ofthis Agreement

7.      Counterparts. This Agreement may be executed in counterparts or with detachable
signature pages and shall constitute one agreement, binding upon all the parties as if all the
parties signed the same document.

8.      Headings. The headings used in this Agreement are intended solely for the convenience
of reference, and should not in any manner amplifY, limit, modify, or otherNise be used in the
interpretation of any of the provisions of the Agreement

9.     Authority. Each person(s) executing this Agreement as an agent or in a representative
capacity warrants that he or she is duly authorized to do so.

l 0.   Entire Agreement. This Agreement embodies, merges, and integrates aU prior and
current agreements and understandings ofthe Parties with regard to the Lawsuit, and may not be
clarified, modified, changed, or amended except in writing signed by each and every one of the
signatories hereto, or their authorized representatives.

11.    Survival. All representations and warranties contained herein shall survive the execution
and delivery of this Agreernent, and the execution and delivery of any other document or
instrument referred to herein.

12.     Further Acts. In addition to the acts recited in this Agreement, the parties agree to
perform, or cause to be performed on the date of this Agreement, or thereafter, any and ail such
further acts as ma.Y be reasonably necessary to consummate the transactions contemplated in this
Agreement.




CONFIDENTIAL SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS                                     PAGE40F8




                                                                                                           35
lJ.    Not evidence. This Agreement shall not be used as evidence in any proceeding other
than one to enforce this Agreement, or one seeking damages arising from a breach of this
Agreement or any administrative or legal action by TI1e Internal revenue Service or other agency
ofthe United States

14.     Tax Liability. Young acknowledges that neither JPMC nor Deutsche Bank provided
representations or advice to him regarding the tax consequences of this Agreement. Young,
although denying there are any such tax liabilities, further agrees he will be responsible for any
tax liabilities associated with his entry into this Agreement if any should be due.

             THE REMAINDER OF TfiiS PAGE INTENTIONALLY LEFT BLANK

                                     SIGNATURE PAGES FOLLOW




CONF!DEJ\n1AL SFlTLEME!'.'T AGREE!vll:-xf Ai'-ID RELEASE OF CLAIMS                     PAGE50F8




                                                                                                     36
STATE OF TEXAS                        §
                                      §
COUNTYOF       Tfl/ta:S               §

       BEFORE .!\ffi, the undersigned authority, on this day personally appeared THOMAS D.
YOUNG AIK/A T. DAVID YOUNG known to me to be the individual whose name is
subscribed above, and acknowledged to me that he/she executed the same for the purposes and
consideration therein expressed and in the capacity therein stated.

                                                                   9fl,_     dayof

                      -----'' 2014.


                        Jaf!MI)u
                    Commission &phs
                        12·21-2017

Commission Expires:




CONfiDENTIAL SeTTLEMENT AGREEMENT AND REU1ASE OF CLAIMS                          PAGE60F8




                                                                                              37
                                           JPMorgan Chase Bank, N.A., as attorney~in-fact for
                                           Deutsche Bank National Trust Company, formerly
                                           known as Bankers Trust Company of California, N.A.
                                           a<> Trustee for Long Beach Mortgage Loan Trust
                                           2001-1




STATE                         §
                              §
COUNTY                        §

       BEFORE ME, the undersigned, a Notary Public in and for said County and State, on this
day personaHy appeared :rse~ "":::.£ $!', 3\\, :"X2..s    -~--' in his;fJ~ieapacity as authorized
agent for JPMorgan Chase Bank, N.A., as attorney-in-fact for Deutsche Bank National Trust
Company, formerly known as Bankers Trust Company of California, N.A. as Trustee tor Long
Beach Mortgage Loan Trust 2001-1, known to me to be the p<."fson whose name is subscribed to
the foregoing instrument, and acknowledged to me that he/she executed the same for the
purposes and consideration therein expressed, in the capacity therein stated, and as the act and
deed of said entity.




                                             Notary p~                    . nand For Sa~ Cmmcy'andState

(Seal)                                                 \.. E4rerna Davis
                                                         '\... .,__,,,.,.~~~-/·




My commission expires:



         JAN 23 2018




CONFIDENTIAL SETTl..EMEN! AGREEMENT AND RELEASE Of CLAIMS                                       PAGE70f8




                                                                                                           38
                                           JPMorgan Chase Bank, N.A.




STATE OF



       BEFORE ME, the:.      ers1gned, a N      Public in and for said County and State, on this
day personally appeared           -t:1:t€ , '.~::J~)f'J,E:S _, in his@capacity as authorized
agent for JPMorgan Chase Bank, N .A. known to me to be the person whose name is subscribed
to the foregoing instrument, and acknowledged to me that he/she executed the same tor the
purposes and consideration therein expressed, in the capacity therein stated, and as the act and
deed of said entity.

         GIVEN under my hand and seal o(offtee'th1S




(Seal)

My commission expires:


             JAN 23 Z018




CONFIDENTIAL SRT11.EMENT AGREEMENT AND RELEASE OF CLAIMS                              PAGE80F8




                                                                                                   39
