                                                                 E1L1B IN
                                                         The tSdiift d'f A&t&ats
  The -QLirt of Appeals
      Sixth District

     ray 1fe 2015              06-15-00074-CV                 WOV 1 62015
 •>x?rkana. Texas , -                                    ^^xark^a^^s
Uii.-iCI ^lii.^J, L.w.U                                   L- .          _,, J - f

           IN THE COURT OF APPEALS OF TEXAS
                  SIXTH DISTRICT, TEXARKANA

                               DON A WADE,
                                Appellant,

                                      V.


       HOUSEHOLD FINANCE CORPORATION III,
                    Appellee.



            On Appeal from the County Court at Law
                    Caldwell County, Texas
                          Trial Court Cause No. 5966



                           APPELLANT'S BRIEF



                                           Don A. Wade
                                           596 Boulder Lane
                                           Dale, Texas 78616
                                           (512)398-3811
                                           quana70@reagan.com
                          IDENTITY OF THE PARTIES

Appellant

Don A. Wade
596 Boulder Lane
Dale, Texas 78616
(512)398-3811
quana70@reagan.com

Appellee

HOUSEHOLD FINANCE CORPORATION III

Counsel for Appellee

Sarah S. Robbins
HUGHES, WAITERS & ASKANASE, L.L.P.
Three Allen Center
333 Clay Street, 29th Floor
Houston, Texas 7702
ssr@hwallp.com
                                TABLE OF CONTENTS

Identity of Parties and Counsel                                                     ii

Table of Contents                                                                   iii

Table of Authorities                                                                v

Statement of the Case                                                                1

Issues Presented                                                                     2

       Issue One: Did a County Court have subject matter jurisdiction to
foreclose on 90 acres of land when the underlying contract is for 34.6 acres?

         Issue Two:   Is it real estate fraud when HFC contracted for 34.6 acres
and falsified the public record by filing a description of 90 acres?

         Issue Three: Does the theory of unjust enrichment apply when a party
sues for recovery of more property than it was enumerated in the contract
between the parties?

         Issue Four: Does laches apply if an entity sat on its legal rights for 5 years?

Summary of the Argument                                                             2

Argument and Authorities                                                            3

         Unjust Enrichment                                                               3

         Laches                                                                              8

         Subject Matter Jurisdiction                                                      9

      Fraud                                                                               10

Conclusion                                                                               11

Prayer                                                                              12
Certificate of Compliance   13

Certificate of Service      13

Appendix                    14
                           TABLE OF AUTHORITIES



Cases


City ofFort Worth v.Johnson, 388 S.W.2d 400, 403 (Tex.1964)                  8

Fortune Prod.Co. v. Conoco, Inc. 52 S.W.3d 671, 684 (Tex.2000)               4

James L. Bircher, et at, v. The Bank ofNew York Mellon, et at,
No. 4:12-CV-171-Y, (U.S.D.C, N.D. Texas, Fort Worth Divison, 2010)                   4

Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, (Tex.1989)                8

Texas Dept. Parks and Wildlife v. Miranda, 133     S.W. 3d 217, (Tex.2004)       9

Walston v. Lockhart, 62 S.W.3d 257, 264 (Tex.App.—Waco 2001, pet denied)...2



Texas Statutes




Tex.Prop.Code §52.002(d)                                                             5

Texas Rules of Appellate Procedure 24.1                                          6
                            STATEMENT OF THE CASE


       This case can be summed up very succinctly in a few words. A Deed of

Trust which enumerates the contract to be on 34.69 acres cannot be magically

turned into a foreclosure on 90 acres. In this matter, HFC proceeded at all times in

real estate fraud and unjust enrichment, all of which were barred by the doctrine of

laches.


       Don A. Wade and Shelley Wade1 signed a promissory note and security

instrument on March 26, 2005. The contract, when it was signed, reflected 3.46

acres of land on the Deed of Trust, however, the Wades had documents stolen from

their home and among them was the Original Deed of Trust which reflected the

3.46 acres. When Appellant requested a copy of the original deed of trust, it had

been altered to reflect the encumberedproperty as 34.69 acres. Appellant

rescinded the contract after two years due to the many discrepancies which HFC

committed, and HFC never responded. Appellant has not owned more than 34.69^

acres beginning at least 20 years before he contracted with HFC.




1Shelley Wade is not a party to this suit.
2 Clerk's Record page 167 - Caldwell CAD document showing 34.69 acres.
                                ISSUES PRESENTED


Issue One: Did a County Court have subject matter jurisdiction to foreclose on 90
acres of land when the underlying contract is for 34.6 acres?

Issue Two:    Is it real estate fraud when HFC contracted for 34.6 acres and falsified
the public record by filing a description of 90 acres?

Issue Three: Does the theory of unjust enrichment apply when a party sues for
recovery of more property than was enumerated in the contract between the
parties?

Issue Four: Does laches apply if an entity sat on its legal rights for 5 years?


                        SUMMARY OF THE ARGUMENT

       The Court lacked subject matter jurisdiction to issue a writ of possession on

90 acres. HFC lacked standing to sue for possession of 90 acres.

       For standing to exist, a party must be directly and personally aggrieved.

Specifically, the party must show that (1) it has sustained, or is in immediate

danger of sustaining, some direct injury as a result of the wrongful act of which it

complains; (2) it has a direct relationship between the alleged injury and claim

sought to be adjudicated; (3) it has a personal stake in the controversy; and (4)(a)

the challenged action has caused it some injury in fact or (b) it is an appropriate

party to assert the public's interest in the matter as well as its own interest.

Walston v. Lockhart, 62 S.W.3d 257, 264 (Tex.App.—Waco 2001, pet denied).

      At no time was 90 acres mortgaged, certainly not to HFC. Even if Appellant

had engaged in detainer, his occupancy did not extend to 90 acres, and he cannot
be sued for that which was not contractually mortgaged. HFC had no personal

stake in 90 acres, nor did it suffer injury as a result of Appellant's detainer on 90

acres. HFC cannot assert a public interest.

       The judge based his decision on the fact that the districtjudge had, five years

previous to the suit for possession, granted an order to foreclose on 90 acres, even

though the county court judge was shown evidence that 90 acres was not and could

not be encumbered.


       It is a legal impossibility to award a judgment which exceeds the interest of

the parties.



                       ARGUMENT AND AUTHORITIES
                             UNJUST ENRICHMENT


      HFC financed 2 trailer houses sitting on 3.46 acres ofAppellant's land.

Although Appellant alleges when he signed the mortgage document it read 3.46

acres, the fact is, his original copy was stolen and, therefore, he cannot prove that

number, however, the copy of the mortgage he eventually obtained from HFC

reads 34.69 acres, and reflects his and his deceased wife's signature.

      Rather than obtain the description from the new survey that was done on the

property at the time of the loan, HFC copied an old property description from the

records of the Caldwell County clerk. This obsolete description read "90 acres".
       Even though HFC was noticed repeatedly that it laid claim to 55 acres more

than was mortgaged, HFC continued to press ahead to obtain possession of 90

acres. This can only be described as an attempt at unjust enrichment.

       By filing its claim for possession of 90 acres in a suit for forcible detainer,

HFC attempted to recover more than it was entitled to recover, thus engaging in

suit for unjust enrichment.

       Unjust enrichment is a quasi-contractual claim that is based on the absence

of an express agreement. SeeFortune Prod. Co. v. Conoco, Inc. 52 S.W.3d 671,

684 (Tex.2000). The Deed of Trust and Note preclude any claim for cause of

action which would grant to Plaintiff more than the parties had contracted for.

HFC, by bringing its claim for 90 acres when the parties' contractual agreement is

for 34.69 acres, has engaged in unjust enrichment. James L. Bircher, et al, v. The

BankofNew York Mellon, et al, No. 4:12-CV-171-Y, (U.S.D.C, N.D. Texas, Fort

Worth Division, 2010).

       On December 2, 2014, HFC executed a foreclosure sale on 90 acres. Since

the loan was a home equity loan, HFC had filed for a foreclosure order in 20093. It

was this order that was used to foreclose in 2014 and which was offered as

evidence at the forcible detainer suit as its right to possession.

       The foreclosure was voidable, if not void, as, none of the procedures which

are mandated in Tex.Prop.Code §52.002(d) had been done, including no written
3 Clerk's Record, pages 93-94
notice of default and offer to cure by certified mail was sent to Appellant. No

Notice of Sale was posted 21 days before the sale. No Notice of Appointment of

Substitute Trustee was posted until December 22, 2014,4

         When HFC filed for forcible detainer, it fraudulently omitted the most telling

page from the Mortgage that Appellant and his wife had signed on March 26,

2005.5


         Appellant strenuously objected to the order for possession by fding several

Requests for Finding of Fact and Conclusion of Law. In his answer to the First

Request6, Judge Jarret, answered that "The Mortgage encumbered 90.0 acres of

land out of the Edward Brown Survey in Caldwell County, Texas, (the "Property"),

and that A Substitute Trustee's Deed, dated December 12, 2014, was executed

foreclosing the underlying lien and granting title to the 90.0 Acres of land to

Household Finance Corporation, III.7

       Appellant filed a Motion for New Trial followed by a Judicial Notice of

Fraud on the Court,8 at which point, Judge Jarret could have ordered a new trial,


4 Clerk's Record, pages 100-101
5 Clerk's Record, page 198 - Voluntary Designation of Homestead, a document which must be
part of a home equity mortgage or loan. This one reflecting the property contains 34.69 acres.
The designation further reflects that there is not more than one survey and there are no more
acres. Yet, HFC pulled a recorded survey of the property which had been filed more than 20
years prior to Appellant's transaction.
6 Clerk's Record - page 180, Defendant's Request for Finding of Fact and Conclusion of Law.
7 Clerk's Record - page 184, Findings of Fact.
8Clerk's Record - page 187-189, once again attaching a copy of the actual Mortgage which
reflected 34.9 acres. - C.R. page 198
since the Motion for New Trial had been timely filed.9 A new trial was never

scheduled.


        Appellant filed his Additional Request for Finding of Fact and Conclusion of

Law10, on June 12, 2015, which was met with the issuance of a Writ of Possession11

over the top of a timely filed Supersedeas Surety Bond.

        The Additional Request was never answered.

        As it happens, the deputy clerk who was assigned this task in the clerk's

office, had only had the job for two months, and was not familiar with, and had not

been properly trained as to Texas Rules of Appellate Procedure 24.1. She did not

understand the approval of bond process and was of the belief that the court

approved the bond.

       After much agony and frustration, the Writ was returned to the clerk, on

August 14, 2015, unexecuted. 12

       During the hearing, Appellant informed the Court that 90 acres was not

involved and the exhibit of the mortgage document offered by the Appellee at the

trial did not show the property mortgaged and was incomplete.13




9 Clerk's Record - Page 162
10 Clerk's Record - Page 201 - Additional Request for Finding of Facts
11 Clerk's Record - Page 205 - Writ of Possession
12 Clerk's Record - Page 269
13Reporter's Record, Page 8, lines 7-11
         Appellant noticed the Court14 that there were not 90 acres involved and

hadn't been for over 30 years, therefore the Court did not have subject matter

jurisdiction over the matter.

         Appellant asks the judge15 if he signs the eviction order does that also evict

Hoftrnan, the Marlin's, the Mowreys, the people who over time have bought land

from Appellant which was in the original 90 acres which Appellant owned. At line

21 -24 on the same page, Appellant states he is just trying to understand why he is

being singled out to be evicted on a piece of property that has six other people on
it? i.e. the 90 acres.


         Based on the issue of right to possession, thejudge awarded possession of

the 90 acres to HFC, the party named in the Substitute Trustee Deed.

         The Court failed to name a supersedeas bond amount, another hearing was

held on May 11, 2015 to determine the amount of the bond, and the bond was

timely filed.

LACHES


         Setting aside the fact that HFC committed fraud by continually asserting its

right to 90 acres, rather than the 34.69 noted in the mortgage, Appellant asserts that

HFC abandoned the right to foreclose on the property which it obtained in the 2009

order.


14 Reporter's Record, Page 13, lines 4-6
15 Reporter's Record, Page 16, lines 14-19
       The two essential elements of laches are (1) unreasonable delay by one

having legal or equitable rights in asserting them, and (2) a good faith change of

position by another to his detriment because of the delay. City ofFort Worth v.

Johnson, 388 S.W.2d 400, 403 (Tex.1964). Rogers v. Ricane Enterprises, Inc., 772

S.W.2d76,(Tex.l989).

       Appellant asserts that HFC obtained its right to foreclose on November 23,

2009 when it received the order to foreclose from the district court. During the 5

year interim from the time it received its order until it filed for foreclosure in

December of 2014, Appellant believed that HFC had taken the high road, realized

it had no lien on 90 acres, the rescission that Appellant had submitted was accepted

in good faith, and that HFC had gone away. As a result, Appellant did not file for

trespass of title during the 5 year period.

      Appellant asserts that laches applies, and HFC is barred by laches.



SUBJECT MATTER JURISDICTION

      The trial court had no subject matter jurisdiction regardless of the previous

order for foreclosure issued by the district court in 2009. During the trial on the

matter, Appellant gave evidence that HFC's pleadings to obtain possession were a

sham, as the original Mortgage was on 34.69 acres. The attachment of Exhibit 1
which reflected 90 acres of land was originally attached to the Mortgage and filed

into public record without the knowledge of Appellant.

         A survey had been completed on the 34.69 acres and was part of the

documentation accompanying the original mortgage. HFC had been noticed it was

proceeding in error or fraud, and had ignored the fact.

         The Courtwas shown evidence of the mortgage which clearly defined 34.69

acres, yet granted possession of 90 acres which the Appellant had not owned for

over 30 years.

         The Court relied on the pleadings of HFC which claimed 90 acres, yet,

Appellant did not mortgage 90 acres, and therefore, the Court had no subject

matterjurisdictionover the 90 acres. Texas Dept. Parks and Wildlife v. Miranda,

133      S.W. 3d 217, (Tex.2004).

         The Courthad an obligation to examine the evidence on which the parties

relied to determine if a fact issue existed regarding the false representation of 90

acres.



FRAUD


         HFC made false representations, originally to the district court which issued

an order to foreclose on 90 acres, and then to the county court in order to obtain

possession of 90 acres, which it did not own nor have any interest in.
       HFC made the representations with the intent to deceive the court into

granting possession to land which could not be adjudicated by the court as 55 acres

of the land had been previously sold and to which HFC held no interest,

whatsoever.


       Appellant, by submitting his request for finding of facts and conclusions of

law, clearly asked the Court for its findings, and Judge Jarrett replied that "The

Mortgage encumbered 90.0 acres of land out of the Edward Brown Survey in

Caldwell County, Texas, (the "Property") as one of the facts, and that "The

Plaintiff, Household Finance Corporation, III, has the greater right to possession of
the property in question." 16

       It is obvious that thejudge relied on Exhibit 1, the inclusion of a property

description of 90 acres, for his facts.

       In addition to filing a Motion for New Trial, Appellantgave Judicial Notice

of Fraud on the Court.17

       Appellant then made an additional request for finding of fact and conclusion

of law18, that request was never answered by the Court, rather, HFC filed for a Writ

of Possession on the 90 acres over the top of a timely filed Supersedeas Bond.

                                      CONCLUSION




16 Clerk's Record-pages 184-185
17 Clerk's Record - pages 187 - 200
18 Clerk's Record -pages 201 - 202

                                                                                      10
       HFC, acted in bad faith from the beginning of contractual agreement

between the parties, to the filing of a forcible detainer which attempts to foreclose

on twice as much property as it had an interest in.

       HFC waited 5 years after obtaining an order to foreclose to do so, and then

sued for forcible detainer based on an Exhibit 1 attached to the Mortgage which

asserted to describe the property encumbered, yet, the Mortgage itself reflected

34.69 acres as being encumbered by a lien.

       HFC was barred from foreclosure by laches.

       Nevertheless, HFC foreclosed five years after the Order for Foreclosure was

issued and subsequently filed for possession and was granted possession of 90

acres in contravention to a contract which read 34.69.

       In doing so, HFC acted in bad faith, filed fraudulent documents into the

court which materially misrepresented the facts to the court, attempted to foreclose

on 55 acres more than was mortgaged, and caused a writ of possession to issue

after a good and sufficient Supersedeas Bond had been timely filed.

      HFC acted, at all times, in total disregard and disdain for Texas law.

                                     PRAYER


      In this instance, the seizure and possession of 90 acres is a legal

impossibility, and Appellant requests this court to reverse the order for possession

and remand this case to the trial court for sanctions of violations of Rule 13 by

                                                                                    11
attorneys for HFC, as they knew or should have known that they were filing

fraudulent pleadings in the trial court.

                                                    Respectfully submitted,




                                                    Don A. Wade
                                                    596 Boulder Lane
                                                    Dale, Texas 78616
                                                    (512)398-3811
                                                    quana70@reagan.com




                      CERTIFICATE OF COMPLIANCE

      I, the undersigned, do hereby certify that the number of words in this

Appellant's Brief is 2,784 words.




                                                                               12
                         CERTIFICATE OF SERVICE

      I, the undersigned, hereby certify that a true and correct copy ofAppellant's

Brief was sent by U. S. Postal Service on November 13, 2015 to:

      Sarah S. Robbins
      HUGHES, WAITERS & ASKANASE, L.L.P.
      Three Allen Center
      333 Clay Street, 29th Floor
      Houston, Texas 7702
      ssr@hwallp.com




                                    APPENDIX


                                    JUDGMENT




                                                                                 13
                                                                    /S




                                         Cause No. 5966

HOUSEHOLD FINANCE CORP. HI                      §                  IN THE COUNTY COURT
                                    Plaintiff   §
                                                §
V.                                              §                                    AT LAW
                                                §
DON A WADE AND SHELLEY WADE                     §
AND ALL OTHER OCCUPANTS                         §
                                 Defendants     §              CALDWELL COUNTY, TEXAS

                                          JUDGMENT

        This April 7, 2015, came on to be heard the above entitled and numbered cause herein

HOUSEHOLD FINANCE CORP. in, is Plaintiff, DON A WADE AND SHELLEY WADE

AND ALL OTHER OCCUPANTS are Defendants; when came the Plaintiff appeared and

announced ready for trial. Defendants did appear. The Court, after considering the pleadings

and fully hearing the sworn evidence finds forthe Plaintiff.

        IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the

Defendants are adjudged guilty of forcible detainer and that the Plaintiff, HOUSEHOLD

FINANCE CORP. ffl does have and recover ofthe Defendants DON A WADE AND SHELLEY

WADE AND ALL OTHER OCCUPANTS, possession of the following described premises
situated in the Justice of the Peace Court, Precinct 2, Place 1, CALDWELL County, Texas, to
wit: 596 BOULDER LANE, DALE, TX 78616 more particularly described as:
        SEE EXHIBIT A;

        IT IS FURTHER ORDERED, ADJUDGED AND DECREED mat a Writ of Possession

issue onor after the sixm day aftwentry of thisjiidgm

to seize possession of the said described premises anddeliyer same to the Plaintiff and that an
execution issue for removal of all personal property left and/or abandoned by Defendants
remaining on the property;

EVhdgmei*20l4-O253fi&mt



                                                                                             155
                                                                    s\




         This judgmentis final, disposes ofallclaims and parties, andis appealable.

         Bitered this £r**t"day of M.2UA 2015.




 APPROVED & ENTRY REQUESTED:

 HUGHES, WAITERS & ASKANASE, LX.P



Sdrah S. Robbins               TBA #24074966
Three Allen Center
333 Clay, 29* floor
Houston, Texas 77002
Telephone (713) 759-0818
Telecopier (713) 759-6834
                                                              FILED this.   .^dayofAl^O \5
                                                                                      -£'• 3s f M
 ATTORNEYS FOR PLAINTIFF                                                    CAROL HOLCOMB
                                                               COUNTY CLERK, CALDWELL COUN1Y, TEXAS
                                                              Hy<SttA^^^\Ot80*.A^,^DBQUW




EV Judgments 201442536QHI1


                                                                                              156
