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NO. 08-07290-D E i 1 E D
LONZIE C, LEATH IN THE 9S™
TIL OCT-4 AKIO: 27
Vv. JUDICIAL DISTRICT COURT
" : 2
WELLS FARGO BANK, N.A. AS TRUSTEE OF DALLAS C¢ EXAS
U,
PLAINTIFF’S RESPONSE TO vesenpavenwersshel rPury
TO MODIFY OR REFORM THE JUDGMENT AND
DEFENDANT'S MOTION FOR NEW TRIAL
I,
Defendant has filed its Defendant’s Motion to Modify or Reform the Judgment and
Defendant's Motion tor New Trial in Opposition to Motion for Entry of Judgment. Defendant
has filed these Motions asserting the same arguments previously rejected by the Court during the
Plaintiff's Motion for Final Judgment hearing on July 8, 2011. Further, Defendant’s Motions
were over-ruled by operation of law on September 23, 2011, and Defendant has raised
no new issues sufficient for the Court to exercise its plenary power.
IL.
In the case before this Court, there was no issue about instructions, and the failure of
Defendant to cure is undisputed. It is also undisputed that Defendant Wells Fargo never even
raised this issue until their Response to Plaintiff's Motion for Final Judgment.
ll
The issue of what jury questions are to be submitted is controlled by the Texas Rules of
Civil Procedure. As a brief summary for the Court:
A. Rule 94 requires “any other matter constituting an avoidance or affirmative
defense” to be plead or it is waived. Also, Defendant must establish all elements
of an affirmative defense and request jury questions, or it is waived. See Cathey
vy. Booth 900 SW2d 339 (Tex. 1995) and Gilbane Bldg. Co. v. Two Turners
Electric Co. 2007 WL 582252 (Tex. App - Hou. 14" District) 2007 Pet. Denied.
In this matter, Defendant has not plead, proved, or requested a jury question on
PLAINTIFF’S RESPONSE TO DEFENDANT'S MOTION TO MODIFY OR REFORM THE
JUDGMENT AND DEFENDANT’S MOTION FOR NEW TRIAL PAGE 1the ‘cure’ issue.
B. Rule 272 requires all objections to the charge be in writing or dictated to the
Court Reporter or they are “waived.” Specifically, the Texas Supreme Court has
ruled: “Rule 272 Texas Rules of Civil Procedure, requires only the submission of
disputed facts.” Custom Leasing, Inc. v. Texas Bank and Trust Company of
Dallas 516 SW2d 138, 144 (Tex. 1974). Defendant made no such objection.
Cc. Rule 273 requires any requested Jury Questions to be submitted separately from
any objections to the charge. Defendant made no such request.
D. Rule 274. Objections and Requests
A party objecting to a charge must point out distinctly the objectionable matter
and the grounds of the objection. Any complaint as to a question, definition, or
instruction, on account of any defect, omission, or fault in pleading, is waived
unless specifically included in the objections. Specifically, “when addressing a
complaint on the submission of a jury question, any complaints not specifically in
the objections are waived.” Garza v, Southland Corp. 836 SW2d 214, 218 (Tex.
App. - Houston [14'" Dist.] 1992. Defendant made no such complaint.
E. Rule 278 specifically requires “... a party shall not be entitled to any submission
of any question raised only by a general denial and not raised by affirmative
written pleading by that party.” and “Failure to submit a question shall not be
deemed a ground for reversal of the judgment, unless its submission, in
substantially correct wording, has been requested in writing and tendered by the
party complaining of the judgment; ....”. Defendant made no such pleading or
requested any jury question on the “cure” issuc.
Ml.
PLAINTIFF'S RESPONSE TO DEFENDANT’S MOTION TO MODIFY OR REFORM THE
JUDGMENT AND DEFENDANT'S MOTION FOR NEW TRIAL PAGE 2Asa final argument to Defendant’s Response, Plaintiff would show there is undisputed
evidence that Defendant failed to cure the specific complaint after proper notice as follows:
A. Mr. Leath’s testimony at trial.
B. Plaintiff's Original Petition filed July |, 2008 stating the specific complaint that
the loan amount excecded 80% of the Fair Market Valuc.
Cc. Ross & Matthews letter to Mr. Negrin’s law firm dated January 25, 2008 pointing
out the exact complaint (see attached) and the violation of the Texas
Constitution.
D. Respondent’s Original Answer filed in Cause #DC-08-02567-J informing Wells
Fargo of the exact complaint and violation of the Texas Constitution. (See
exhibits previously attached and Exhibit 51).
Of specific note, The Finance Commission and the Credit Union Commission has stated
the cure provision only requires reasonable notice as set out in 7 T.A.C. §153.91 - 153.93.
Cenainly, the multiple notices given in A-D above satisty this reasonable notice requirement.
Thercfore, regardless of the failure of Wells Fargo to file an Affirmative Defense and
their waiver of any complaints about the jury submission, the record in this case establishes as an
undisputed fact that Wells Fargo had multiple opportunities to tender a “cure,” but did not do so
at any time before, during, or after this trial.
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant’s Motion to
Modify or Reform the Judgment and Defendant’s Motion for New Trial be DENIED by the
Court and the Judgment allowed to become final.
PLAINTIFF'S RESPONSE TO DEFENDANT’S MOTION TO MODIFY OR REFORM THE
JUDGMENT AND DEFENDANT’S MOTION FOR NEW TRIAL PAGE 3Respectfully submitted,
LAW OFFICE OF WENDEL A. WITHROW
Mlb Niche
WENDEL A. WITHROW
State Bar No. 21830800
1120 Metrocrest, Suite 200
Carrollton, Texas 75006
Phone: 972/416-2500
Fax: 972/417-0685
By
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a truc and correct copy of the foregoing document has been forwarded
to all counsel of record in accordance with the Texas Rules of Civil Procedure on this “7 day of
WENDEL A. WITHROW
PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO MODIFY OR REFORM THE
JUDGMENT AND DEFENDANT'S MOTION FOR NEW TRIAL PAGE 4
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NO. 08-07290-D E i 1 E D LONZIE C, LEATH IN THE 9S™ TIL OCT-4 AKIO: 27 Vv. JUDICIAL DISTRICT COURT " : 2 WELLS FARGO BANK, N.A. AS TRUSTEE OF DALLAS C¢ EXAS U, PLAINTIFF’S RESPONSE TO vesenpavenwersshel rPury TO MODIFY OR REFORM THE JUDGMENT AND DEFENDANT'S MOTION FOR NEW TRIAL I, Defendant has filed its Defendant’s Motion to Modify or Reform the Judgment and Defendant's Motion tor New Trial in Opposition to Motion for Entry of Judgment. Defendant has filed these Motions asserting the same arguments previously rejected by the Court during the Plaintiff's Motion for Final Judgment hearing on July 8, 2011. Further, Defendant’s Motions were over-ruled by operation of law on September 23, 2011, and Defendant has raised no new issues sufficient for the Court to exercise its plenary power. IL. In the case before this Court, there was no issue about instructions, and the failure of Defendant to cure is undisputed. It is also undisputed that Defendant Wells Fargo never even raised this issue until their Response to Plaintiff's Motion for Final Judgment. ll The issue of what jury questions are to be submitted is controlled by the Texas Rules of Civil Procedure. As a brief summary for the Court: A. Rule 94 requires “any other matter constituting an avoidance or affirmative defense” to be plead or it is waived. Also, Defendant must establish all elements of an affirmative defense and request jury questions, or it is waived. See Cathey vy. Booth 900 SW2d 339 (Tex. 1995) and Gilbane Bldg. Co. v. Two Turners Electric Co. 2007 WL 582252 (Tex. App - Hou. 14" District) 2007 Pet. Denied. In this matter, Defendant has not plead, proved, or requested a jury question on PLAINTIFF’S RESPONSE TO DEFENDANT'S MOTION TO MODIFY OR REFORM THE JUDGMENT AND DEFENDANT’S MOTION FOR NEW TRIAL PAGE 1the ‘cure’ issue. B. Rule 272 requires all objections to the charge be in writing or dictated to the Court Reporter or they are “waived.” Specifically, the Texas Supreme Court has ruled: “Rule 272 Texas Rules of Civil Procedure, requires only the submission of disputed facts.” Custom Leasing, Inc. v. Texas Bank and Trust Company of Dallas 516 SW2d 138, 144 (Tex. 1974). Defendant made no such objection. Cc. Rule 273 requires any requested Jury Questions to be submitted separately from any objections to the charge. Defendant made no such request. D. Rule 274. Objections and Requests A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections. Specifically, “when addressing a complaint on the submission of a jury question, any complaints not specifically in the objections are waived.” Garza v, Southland Corp. 836 SW2d 214, 218 (Tex. App. - Houston [14'" Dist.] 1992. Defendant made no such complaint. E. Rule 278 specifically requires “... a party shall not be entitled to any submission of any question raised only by a general denial and not raised by affirmative written pleading by that party.” and “Failure to submit a question shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment; ....”. Defendant made no such pleading or requested any jury question on the “cure” issuc. Ml. PLAINTIFF'S RESPONSE TO DEFENDANT’S MOTION TO MODIFY OR REFORM THE JUDGMENT AND DEFENDANT'S MOTION FOR NEW TRIAL PAGE 2Asa final argument to Defendant’s Response, Plaintiff would show there is undisputed evidence that Defendant failed to cure the specific complaint after proper notice as follows: A. Mr. Leath’s testimony at trial. B. Plaintiff's Original Petition filed July |, 2008 stating the specific complaint that the loan amount excecded 80% of the Fair Market Valuc. Cc. Ross & Matthews letter to Mr. Negrin’s law firm dated January 25, 2008 pointing out the exact complaint (see attached) and the violation of the Texas Constitution. D. Respondent’s Original Answer filed in Cause #DC-08-02567-J informing Wells Fargo of the exact complaint and violation of the Texas Constitution. (See exhibits previously attached and Exhibit 51). Of specific note, The Finance Commission and the Credit Union Commission has stated the cure provision only requires reasonable notice as set out in 7 T.A.C. §153.91 - 153.93. Cenainly, the multiple notices given in A-D above satisty this reasonable notice requirement. Thercfore, regardless of the failure of Wells Fargo to file an Affirmative Defense and their waiver of any complaints about the jury submission, the record in this case establishes as an undisputed fact that Wells Fargo had multiple opportunities to tender a “cure,” but did not do so at any time before, during, or after this trial. WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant’s Motion to Modify or Reform the Judgment and Defendant’s Motion for New Trial be DENIED by the Court and the Judgment allowed to become final. PLAINTIFF'S RESPONSE TO DEFENDANT’S MOTION TO MODIFY OR REFORM THE JUDGMENT AND DEFENDANT’S MOTION FOR NEW TRIAL PAGE 3Respectfully submitted, LAW OFFICE OF WENDEL A. WITHROW Mlb Niche WENDEL A. WITHROW State Bar No. 21830800 1120 Metrocrest, Suite 200 Carrollton, Texas 75006 Phone: 972/416-2500 Fax: 972/417-0685 By ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a truc and correct copy of the foregoing document has been forwarded to all counsel of record in accordance with the Texas Rules of Civil Procedure on this “7 day of WENDEL A. WITHROW PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO MODIFY OR REFORM THE JUDGMENT AND DEFENDANT'S MOTION FOR NEW TRIAL PAGE 4