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CAUSE NO. 2019-71004
GUY JONES and MARLA JONES IN THE DISTRICT COURT
Plaintiff s,
HARRIS COUNTY, TEXAS
THE BANK OF NEW YORK MELLON
F/K/A THE BANK OF NEW YORK, AS
TRUSTEE FOR CERTIFICATEHOLDERS
OF CWABS, INC. and NATIONSTAR
MORTGAGE LLC D/B/A MR. COOPER
Defendant s. 190th JUDICIAL DISTRICT
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO VACATE THE
ARBITRATION AWARDAND, ALTERNATIVELY,
MOTION TO STAY PROCEEDINGS AND COMPEL A SECOND ARBITRATION
Defendants Counter-Plaintiffs Bank of New York Mellon f/k/a The Bank of New York,
as Trustee for Certificateholders of CWABS, Inc. (“BONY”) and Nationstar Mortgage LLC d/b/
Mr. Cooper (“Nationstar”) (collectively, “Defendants submits this pposition to Plaintiffs Guy
Jones and Marla Jones’ (“Plaintiffs motion to vacate the arbitration award dated January 2
Motion to Vacate .
On February 9, 2023, Defendants filed a motion for entry of the arbitration award Motion
for Entry , which is set for hearing on May 1, 2023 If the Court denies the Motion for Entry
(or grants the Motion to Vacate), Defendants move, alternatively, for an order staying th
proceedings and compelling the Plaintiffs to participate in a second arbitration with the Honorable
John T. Wooldridge, to be scheduled not later than thirty (30) calendar days following the Court’s
order, or as soon thereafter as Judge Wooldridge’s schedule reasonably allows
Defendants incorporate the Motion for Entry into this opposition as if fully set forth herein. The Court passed the
hearing on Defendants’ Motion for Entry on March 20, 2023. The Defendants filed the arbitration award and exhibits
(including the MSA and long form settlement agreement) under seal in support of Defendants’ Motion for Entry See
Order dated April 10, 2023.
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Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al.
INTRODUCTION
The Parties’ mediated settlement agreement was (a) mutually negotiated and
executed by the Parties and their counsels at an in person mediation conducted by Judge John T.
Wooldridge on August 30, 2022, and (b) made expressly enforceable under Tex. R. Civ. P. 11 (the
MSA”). In the MSA, the Partiesagreed execute a long form settlement agreement and, if any
dispute arose regarding the MSA, to participate in (1) another mediation to resolve the dispute,
and if the dispute was not resolved, (2) a binding arbitration.
he Plaintiffs unreasonably refused without excuse) to execute the long form
agreement. As a result, on November 22, 2022, the arties participated in another mediation (as
provided the MSA) to resolve the dispute. The mediation ended in an impasse. As provided in
the MSA, the Parties then participate in a binding arbitration with Judge Wooldridge on
December 29, 2022. The Parties personally participated in the arbitration while represented by
their respective counsels. The Parties had a full and fair opportunity to submit briefing, testimony,
documentary evidence, and argument during the Arbitration. On January 29, 2023, Judge
Wooldridge entered an Arbitration Award, which enforced the MSA.
On February 9, 2023, Defendants filed their Motion for Entry. Given that the MSA,
including the dispute provisions was extensively negotiated by the Parties (with their counsels
Defendants request that the Court deny Plaintiffs’ otion to acate and enter the award as an
order of the Court. If, and in the unlikely event that, the Court determines there is the requisite
good cause to grant the Plaintiffs’ Motion to Vacate, Defendants move for an order staying this
action and compelling a second binding arbitration with Judge Wooldridge to resolve the
Plaintiffs’ dispute, as Plaintiffsexpressly agreed in the MSA.
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Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al.
BACKGROUND
The Loan Dispute.
In 2003, Plaintiffs obtained a home equity loan encumbering the real property at
7025 East Alpine Drive, Houston, Texas 77061 (the “Property”).in the original principal amount
of $131,900.00 (“Loan”) from Aames Funding Corp. d/b/a Aames Home Loan. The terms of the
Loan are set forth in a Texas Home Equity Note (“Note”) and the Texas Home Equity Security
Instrument recorded as File No. W744034 in the real property records of Harris County, Texas
Security Instrument”). The Security Instrument has been assigned of record to Nationstar.
The Loan requires repayment of the principal amount of $131,900 plus interest in
monthly installments due each month. The Security Instrument secures repayment of the Loan
with a lien on the Property.
Plaintiffs failed to make multiple monthly payments and defaulted on the Loan
On January 1, 2013, BONY filed an expedited application for judicial foreclosure under Tex. R.
Civ. P. 736. BONY was granted an order of foreclosure on March 15, 2013.
The Jones then filed a separate court action against BONY, which BONY removed.
BONY filed a counterclaim for judicial foreclosure. On July 26, 2017, the ourt granted BONY
order of foreclosure. Plaintiffs filed this action, which halted BONY’s lawful foreclosure sale.
Defendants have filed counterclaims for equitable subrogation and breach of contract.
The Parties’ First Mediated Settlement Agreement
On March 4, 2021, the Parties (while represented by counsels) reached a settlement
at a mediation The Parties executed a mediated settlement agreement, which required the arties
The Loan has been in default since March 1, 2008. The Plaintiffs have not paid on the Loan for fifteen (15) years
See Exhibit 1 attached hereto
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Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al.
to execute a long form settlement agreement. On or about March 23, 2021, Defendants provided
Plaintiffs a draft long form settlement agreement reflecting the terms of their settlement
On April 27, 2021, a Notice of Settlement was filed. The next day, on April 28,
2021, the mediator filed a letter confirming the settlement. Despite the foregoing, Plaintiffs refused
(without excuse) to execute the long form settlement agreement.
On May 14, 2021, Defendants filed a motion to enforce the mediated settlement
agreement under Tex. R. Civ. P. 11. The Court denied the motion and ordered Defendants to amend
their counterclaims to assert breach of contract. Defendants did so on August 2, 2021.
On February 2, 2022, Defendants filed a motion for summary judgment on its
breach of contract counterclaim (the “MSJ”). However, Plaintiffs caused multiple delays in the
hearing while they purportedly sought new counsel. The MSJ hearing was held on July 11, 2022.
After the hearing, the arties filed joint motion to stay the Court’s ruling on the MSJ and the trial
date, pending another mediation. On July 25, 2022, the Court granted the motion.
The Parties’ Second Mediated Settlement Agreement
On August 30, 2022, the Parties and their counsels participated in a second
mediation, which was conducted -person by the Honorable John T. Wooldridge. The Parties and
their counsels executed a second mediated settlement agreement, which the Parties agreed is
enforceable under Tex. R. Civ. P. 11 (the “MSA”)Under the MSA, t he Partiesagreed to execute
a long form settlement agreement In addition, the Parties agreed that if any dispute arose regarding
the MSA, the parties would mediate the dispute and, if needed, arbitrate with Judge Wooldridge.
On May 4, 2021, Plaintiffs’ counsel filed an unopposed motion to withdraw from representing the Plaintiffs due to
“irreconcilable differences”, which the Court granted. See Motion to Withdraw dated 5/4/2021.
See note 1 supra.
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Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al.
On September 1, 2022, the Parties filed ajoint notice of settlement n September
, the Defendants served Plaintiffs a draft long form settlement agreement. Again, however,
the Plaintiffs unreasonably, and without excuse, refused to execute the long form agreement.
On November 22, 2022, another mediation was held pursuant to the dispute
provisions in the MSA. The mediation ended in an impasse.
On December 29, 2022, the Parties participated in a arbitration pursuant to the
dispute provisions in the MSA. The arties and their counsels presented briefing before the
mediation as well as testimony, documentary evidence, and argument at the arbitration.
On January 29, 2023, Judge Wooldridge entered an Arbitration Award, which
enforced the arties’ MSA. On February 9, 2023, Defendants filed the Motion for Entry and a
motion to seal the award.
On March 20, 2023, the Court passed the hearing on Defendants’ Motion for Entry
On March 22, 2023, the Plaintiffs filed the Motion to Vacate. On April 10, 2023, the Court granted
Defendants’ motion to seal and set the Motion to Vacate for hearing on May 1, 2023. The hearings
on both the Motion for Entry and the Motion to Vacate have been noticed for May 1, 2023.
AUTHORITIES AND ARGUMENT
Standard of Review Regarding Arbitration.
There “a strong presumption in Texas public policy favoring arbitration and
upholding the parties’ intentions.” ASW Allstate Painting & Constr , Inc. v. Lexington Insur .
188 F.3d 307, 310 (5th Cir. 1999) Similarly, the Federal Arbitration Act, 9 U.S.C. §1 - §16,
On October 3, 2022, the Court held a status conference regarding the status of the action, including the results of the
Parties’ mediation. At the conference, the Plaintiffs acknowledged that they had entered the MSA
On January 25, 2023, Plaintiffs’ counsel filed a motion to withdraw, which asserted a “fundamental and foundational
disagreement [between Plaintiffs and their counsel] . . . wholly inconsistent with as continuing attorney client
relationship.” See Motion filed 1/25/23. On February 13, 2023, the Court granted the motion
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FAA embodies a “liberal federal policy favoring arbitration.” AT&T Mobility, LLC v.
Concepcion, 131 S. Ct. 1740, 1745 (2011) (quoting Moses H. Cone Mem Hosp v. Mercury
Constr. Corp., 460 U.S. 1, 24 (1983)); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440,
443 (2006). Courts are directed to “rigorously enforce agreements to arbitrate.” Shearson/Am.
Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987) (internal quotation marks omitted) (citation
omitted). Section 2 of the FAA provides that a “written provision in . . . a contract evidencing a
transaction involving commerce to settle by arbitration a controversy thereafter arising out of such
contract . . . shall be valid, irrevocable, and enforceable.” 9 U.S.C. § 2.
When the parties have a valid arbitration agreement, “any doubts concerning the
scope of arbitrable issues should be resolved in favor of arbitration[.]” Mitsubishi Motors Corp. v.
Soler Chrysler Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (citation
omitted). Because of the strong policy favoring arbitration, “a party seeking to invalidate an
arbitration agreement bears the burden of establishing its invalidity.” Carter v. Countrywide
Credit Indus., Inc., 362 F.3d 294, 297 (5th Cir. 2004).
On application of a party, the courts “shall confirm” an arbitration award “[u]nless
grounds are offered for vacating, modifying, or correcting [it] under Section 171.088 or 171.091.”
RAC ODE § 171.087. Section 171.088 in turn states in pertinent part:
(a) On application of a party, the court shall vacate an award if:
(1) the award was obtained by corruption, fraud, or other undue means;
(2) the rights of a party were prejudiced by:
(A) evident partiality by an arbitrator appointed as a neutral arbitrator;
(B) corruption in an arbitrator; or
(C) misconduct or willful misbehavior of an arbitrator;
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(3) the arbitrators:
(A) exceeded their powers;
(B) refused to postpone the hearing after a showing of sufficient cause for
the postponement;
(C) refused to hear evidence material to the controversy; or
(D) conducted the hearing, contrary to [various statutory provisions], in a
manner that substantially prejudiced the rights of a party; or
(4) there was no agreement to arbitrate, the issue was not adversely determined in
a proceeding under Subchapter B, and the party did not participate in the arbitration
hearing without raising the objection.
Id..§ 171.088(a). The statutory text could not be plainer: the trial court “shall confirm” an award
unless vacatur is required under one of the enumerated grounds in section 171.088. Id. § 171.087.
Here, in light of the facts showing that Plaintiffs agreed to and participated in a fair
and impartial arbitration during which they presented arguments and testimony while represented
by counsel the Plaintiffs have not, and cannot, sustain their heavy burden of proving sufficient
grounds necessary to grant their Motion to Vacate. Accordingly, Defendants request that the Court
enter the Arbitration Award.
The MSA, Including the Arbitration Provision, Is a Valid and Enforceable
Agreement.
In Texas, “[t]he intent of the parties should be determined from the language used
in the instrument itself, as disclosed within the four corners of the instrument.” Bruner v. Exxon
Co., U.S.A., 752 S.W.2d 679, 683 (Tex. App.Dallas 1988, writ denied); see also Republic Nat’l
See Transcript of the arbitration at Exhibit
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Bank of Dallas v. National Bakers Life Ins. Co., 427 S.W.2d 76, 79 (Tex. App.Dallas 1968, writ
ref’d n.r.e.) (“It is the intention and purpose of the contracting parties, as disclosed within the four
corners of the instrument, which should control.”). An arbitration agreement “shall be valid,
irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation
of any contract.” FAA, 9 U.S.C. § 2. While state law generally applies to contract interpretation,
courts have rejected “state law rules that stand as an obstacle to the accomplishment of the FAA’s
objectives.”
Indeed, in Texas, a party who signs a document
is conclusively presumed to have read and understood its contents. EZ Pawn Corp., 934 S.W.2d at
90 (explaining that failure to read the arbitration agreement does not excuse the party from
complying with its provisions).
Here, the MSA is a valid and binding agreement under Tex. R. Civ. P. 11, in which
Plaintiffs plainly agreed to arbitrate any dispute regarding the MSA. See MSA xhibit 1 to the
Arbitration Award filed under seal. Specifically, the Plaintiffs agreed that any dispute over the
MSA subject to a mediation and, if the dispute not resolved at the mediation, further subject
to a binding arbitration with Judge Wooldridge. The MSA is a valid contract between the parties
under Texas law because it is supported by mutual consideration as both Partiesagreed to arbitrate
disputes regardingthe MSA upon a lawful demand. This mutuality of obligation is, by definition,
sufficient consideration for a contract. See In Re Halliburton Co., 80 S.W.3d 566, 569 (Tex. 2002)
recognizing that the parties’ mutual promises to arbitrate are sufficient consideration for their
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Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al.
agreement). Therefore, consistent with the provisions of the FAA and Texas law, the MSA,
including its arbitration provision, a valid and enforceableagreement .
Accordingly, because the Plaintiffs (while represented by counsel) agreed to
arbitrate any dispute regarding the MSA, Plaintiffs’ conclusory challenge to the validity of the
arbitration provision lacks merit and should be rejected.
Plaintiffs’ DisputeFall s Squarely Within the Arbitration Agreement.
Here, the Parties’ MSA broadly provides that any dispute regarding the MSA is
subject to a binding arbitration. Pennzoil Explor. & Prod. Co. v. Ramco Energy Ltd., 139 F.3d
1061, 1067 (5th Cir. 1998) (broad arbitration clauses “are not limited to claims that literally ‘arise
under the contract,’ but rather embrace all disputes between the parties having a significant
relationship to the contract regardless of the label attached to the dispute.” also In re Swift
Transp. Co., Inc., 279 S.W.3d 403, 408 (Tex. App.—Dallas 2009, orig. proceeding) (holding that
agreement to arbitrate disputes “arising out of or relating to the relationship created by the
Agreement” includes within its scope plaintiff's tort claims)
Here, the Plaintiffs’ dispute regarding the MSA falls within the scope of the MSA’s
dispute provision. The Parties agreed that if there was a dispute regarding the MSA, they agreed
to another mediation, and if the dispute was not resolved at such mediation, the Parties would
participate in a binding arbitration conducted by Judge Wooldridge.
There is no dispute that Plaintiffs participated in the second mediation in person
(and with their counsel) with Judge Wooldridge. The Plaintiffs and their counsels negotiated the
MSA and executed it. As a result, Plaintiffs’ assertions in their Motion to Vacate that they “were
not allowed to present their arguments in the negotiations and were not involved with the creation
of the settlement agreement” is baseless.
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In addition, the MSA contained clear and unambiguous provisions governing how
the Parties would address and resolve any dispute over the MSA. Specifically, in the MSA, the
Parties agreed to participate, and did participate, in a follow up mediation, while represented by
their counsel, which ended in an impasse. In the MSA, the Parties also agreed to participate, and
did participate, in an arbitration while, again, represented by their respective counsels.
The Plaintiffs’ Motion to Vacate presents no justification or evidence to show why
they should not be bound by (a) the MSA, which they and their counsel negotiated and executed,
or (b) the Arbitration Award resulting from a fair and binding arbitration conducted by Judge
Wooldridge, which Plaintiffs fully participated in (while represented by counsel), in accordance
with the MSA. Accordingly, the urt should enter the Arbitration Award and deny Plaintiffs’
Motion to Vacate. Alternatively, Defendants move for an order compelling a second binding
arbitration with Judge Wooldridge and staying the action pending the arbitration.
If the Court Does Not Enter the Arbitration Award (or Grants Plaintiffs’ Motion
to Vacate), Defendants Move for an Order Compelling a Second Arbitration,
and Staying the Action Pendingthe Arbitration.
To determine whether Plaintiffs should be compelled to arbitrate their dispute
regarding the MSA the Texas Supreme Court has developed a two step inquiry: (1) there is a
valid arbitration clause, and (2) the claims in dispute fall within that agreement’s scope.” In re
Rubiola, 334 S.W.3d 220, 223 (Tex. 2011) (citing In re Kellogg Brown & Root, Inc., 166 S.W.3d
732, 737 (Tex. 2005)); see J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003).
Because there is a presumption favoring an agreement to arbitrate under the FAA, any doubt
regarding the agreement’s scope is resolved in favor of arbitration. In re FirstMerit Bank, N.A.
52 S.W.3d 749, 753 (Tex. 2001). Upon determining that a dispute is subject to arbitration, a court
“shall make an order directing the parties to proceed to arbitration in accordance with the terms of
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the agreement.” 9 U.S.C. § 4 see also Cantella & Co. v. Goodwin, 924 S.W.2d 943, 944 (Tex.
1996) (“Once a party seeking to compel arbitration establishes that an agreement exists under the
FAA, and that the claims raised are within the agreement’s scope, the trial court has no discretion
but to compel arbitration and stay its proceedings pending arbitration.”) (quotation marks omitted).
Indeed, “an order to arbitrate the particular grievance should not be denied unless it may be said
with positive assurance that the arbitration clause is not susceptible of an interpretation that covers
the asserted dispute.” AT&T Techs. v. Communs. Workers of Am., 475 U.S. 643, 650 (1986).
Following a determination of arbitrability, a court should “stay the trial of the action until such
arbitration has been had in accordance with the terms of the agreement.” 9 U.S.C. § 3see also In
re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 195 (Tex. 2007) (noting that the FAA “require[s]
courts to stay litigation of issues that are subject to arbitration”).
Based on the foregoing if the Court determines not to enter the Arbitration Award,
Defendants request that the Court compel a second binding arbitration with Judge Wooldridge in
accordance with the terms of the MSA and also, order a stay in the action until an arbitration award
or order has been entered
IV. CONCLUSION/PRAYER
Defendants pray that the Court deny Plaintiffs’ otion to acate the rbitration ward
and grant Defendants’ Motion for Entry of the Arbitration ward as an order of the Court.
Alternatively, Defendants move for an order (1) compelling a second arbitration with Judge
Wooldridge on an expedited basis and no later than within thirty (30) days of the Court’s order
and (2) staying the action pending entry of the arbitration award or order.
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Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al.
Dated: April 27, 2023 Respectfully submitted,
UIRE OODS
/s/ Elizabeth Chandler
Elizabeth Chandler, SBN: 24097484
E-mail: echandler@mcguirewoods.com
UIRE OODS
2000 McKinney Avenue, Suite 1400
Dallas, Texas 75201
Telephone: (214) 932-6400
Facsimile: (214) 932-6499
Jason Huebinger, SBN:
E-mail: jhuebinger@mcguirewoods.com
UIRE OODS
Texas Tower
845 Texas Ave., 24 Floor
Houston, TX 77002
Telephone: (713) 571-9191
Facsimile: (713) 571-9652
ATTORNEY FOR DEFENDANTS/COUNTER-
PLAINTIFFS BONYM andNATIONSTAR
MORTGAGE LLC
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CERTIFICATE OF SERVICE
The undersigned attorney certifies that on April 27, 2023, a copy of the foregoing
instrument was served on all counsel and parties of record via TexFile and electronic mail as
follows.
Guy Jones and Marla Jones
7025 East Alpine Drive
Houston, Texas 77061
houtx061@gmail.com
mjjones718@icloud.com
PRO SE PLAINTIFFS
/s/ Elizabeth Chandler
Elizabeth Chandler
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CAUSE NO. 2019-71004 GUY JONES and MARLA JONES IN THE DISTRICT COURT Plaintiff s, HARRIS COUNTY, TEXAS THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR CERTIFICATEHOLDERS OF CWABS, INC. and NATIONSTAR MORTGAGE LLC D/B/A MR. COOPER Defendant s. 190th JUDICIAL DISTRICT DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO VACATE THE ARBITRATION AWARDAND, ALTERNATIVELY, MOTION TO STAY PROCEEDINGS AND COMPEL A SECOND ARBITRATION Defendants Counter-Plaintiffs Bank of New York Mellon f/k/a The Bank of New York, as Trustee for Certificateholders of CWABS, Inc. (“BONY”) and Nationstar Mortgage LLC d/b/ Mr. Cooper (“Nationstar”) (collectively, “Defendants submits this pposition to Plaintiffs Guy Jones and Marla Jones’ (“Plaintiffs motion to vacate the arbitration award dated January 2 Motion to Vacate . On February 9, 2023, Defendants filed a motion for entry of the arbitration award Motion for Entry , which is set for hearing on May 1, 2023 If the Court denies the Motion for Entry (or grants the Motion to Vacate), Defendants move, alternatively, for an order staying th proceedings and compelling the Plaintiffs to participate in a second arbitration with the Honorable John T. Wooldridge, to be scheduled not later than thirty (30) calendar days following the Court’s order, or as soon thereafter as Judge Wooldridge’s schedule reasonably allows Defendants incorporate the Motion for Entry into this opposition as if fully set forth herein. The Court passed the hearing on Defendants’ Motion for Entry on March 20, 2023. The Defendants filed the arbitration award and exhibits (including the MSA and long form settlement agreement) under seal in support of Defendants’ Motion for Entry See Order dated April 10, 2023. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO VACATE THE ARBITRATION AWARD AND, ALTERNATIVELY, MOTION TO COMPEL A SECOND ARBITRATION Page 1 of 13 Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al. INTRODUCTION The Parties’ mediated settlement agreement was (a) mutually negotiated and executed by the Parties and their counsels at an in person mediation conducted by Judge John T. Wooldridge on August 30, 2022, and (b) made expressly enforceable under Tex. R. Civ. P. 11 (the MSA”). In the MSA, the Partiesagreed execute a long form settlement agreement and, if any dispute arose regarding the MSA, to participate in (1) another mediation to resolve the dispute, and if the dispute was not resolved, (2) a binding arbitration. he Plaintiffs unreasonably refused without excuse) to execute the long form agreement. As a result, on November 22, 2022, the arties participated in another mediation (as provided the MSA) to resolve the dispute. The mediation ended in an impasse. As provided in the MSA, the Parties then participate in a binding arbitration with Judge Wooldridge on December 29, 2022. The Parties personally participated in the arbitration while represented by their respective counsels. The Parties had a full and fair opportunity to submit briefing, testimony, documentary evidence, and argument during the Arbitration. On January 29, 2023, Judge Wooldridge entered an Arbitration Award, which enforced the MSA. On February 9, 2023, Defendants filed their Motion for Entry. Given that the MSA, including the dispute provisions was extensively negotiated by the Parties (with their counsels Defendants request that the Court deny Plaintiffs’ otion to acate and enter the award as an order of the Court. If, and in the unlikely event that, the Court determines there is the requisite good cause to grant the Plaintiffs’ Motion to Vacate, Defendants move for an order staying this action and compelling a second binding arbitration with Judge Wooldridge to resolve the Plaintiffs’ dispute, as Plaintiffsexpressly agreed in the MSA. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO VACATE THE ARBITRATION AWARD AND, ALTERNATIVELY, MOTION TO COMPEL A SECOND ARBITRATION Page 2 of 13 Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al. BACKGROUND The Loan Dispute. In 2003, Plaintiffs obtained a home equity loan encumbering the real property at 7025 East Alpine Drive, Houston, Texas 77061 (the “Property”).in the original principal amount of $131,900.00 (“Loan”) from Aames Funding Corp. d/b/a Aames Home Loan. The terms of the Loan are set forth in a Texas Home Equity Note (“Note”) and the Texas Home Equity Security Instrument recorded as File No. W744034 in the real property records of Harris County, Texas Security Instrument”). The Security Instrument has been assigned of record to Nationstar. The Loan requires repayment of the principal amount of $131,900 plus interest in monthly installments due each month. The Security Instrument secures repayment of the Loan with a lien on the Property. Plaintiffs failed to make multiple monthly payments and defaulted on the Loan On January 1, 2013, BONY filed an expedited application for judicial foreclosure under Tex. R. Civ. P. 736. BONY was granted an order of foreclosure on March 15, 2013. The Jones then filed a separate court action against BONY, which BONY removed. BONY filed a counterclaim for judicial foreclosure. On July 26, 2017, the ourt granted BONY order of foreclosure. Plaintiffs filed this action, which halted BONY’s lawful foreclosure sale. Defendants have filed counterclaims for equitable subrogation and breach of contract. The Parties’ First Mediated Settlement Agreement On March 4, 2021, the Parties (while represented by counsels) reached a settlement at a mediation The Parties executed a mediated settlement agreement, which required the arties The Loan has been in default since March 1, 2008. The Plaintiffs have not paid on the Loan for fifteen (15) years See Exhibit 1 attached hereto DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO VACATE THE ARBITRATION AWARD AND, ALTERNATIVELY, MOTION TO COMPEL A SECOND ARBITRATION Page 3 of 13 Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al. to execute a long form settlement agreement. On or about March 23, 2021, Defendants provided Plaintiffs a draft long form settlement agreement reflecting the terms of their settlement On April 27, 2021, a Notice of Settlement was filed. The next day, on April 28, 2021, the mediator filed a letter confirming the settlement. Despite the foregoing, Plaintiffs refused (without excuse) to execute the long form settlement agreement. On May 14, 2021, Defendants filed a motion to enforce the mediated settlement agreement under Tex. R. Civ. P. 11. The Court denied the motion and ordered Defendants to amend their counterclaims to assert breach of contract. Defendants did so on August 2, 2021. On February 2, 2022, Defendants filed a motion for summary judgment on its breach of contract counterclaim (the “MSJ”). However, Plaintiffs caused multiple delays in the hearing while they purportedly sought new counsel. The MSJ hearing was held on July 11, 2022. After the hearing, the arties filed joint motion to stay the Court’s ruling on the MSJ and the trial date, pending another mediation. On July 25, 2022, the Court granted the motion. The Parties’ Second Mediated Settlement Agreement On August 30, 2022, the Parties and their counsels participated in a second mediation, which was conducted -person by the Honorable John T. Wooldridge. The Parties and their counsels executed a second mediated settlement agreement, which the Parties agreed is enforceable under Tex. R. Civ. P. 11 (the “MSA”)Under the MSA, t he Partiesagreed to execute a long form settlement agreement In addition, the Parties agreed that if any dispute arose regarding the MSA, the parties would mediate the dispute and, if needed, arbitrate with Judge Wooldridge. On May 4, 2021, Plaintiffs’ counsel filed an unopposed motion to withdraw from representing the Plaintiffs due to “irreconcilable differences”, which the Court granted. See Motion to Withdraw dated 5/4/2021. See note 1 supra. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO VACATE THE ARBITRATION AWARD AND, ALTERNATIVELY, MOTION TO COMPEL A SECOND ARBITRATION Page 4 of 13 Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al. On September 1, 2022, the Parties filed ajoint notice of settlement n September , the Defendants served Plaintiffs a draft long form settlement agreement. Again, however, the Plaintiffs unreasonably, and without excuse, refused to execute the long form agreement. On November 22, 2022, another mediation was held pursuant to the dispute provisions in the MSA. The mediation ended in an impasse. On December 29, 2022, the Parties participated in a arbitration pursuant to the dispute provisions in the MSA. The arties and their counsels presented briefing before the mediation as well as testimony, documentary evidence, and argument at the arbitration. On January 29, 2023, Judge Wooldridge entered an Arbitration Award, which enforced the arties’ MSA. On February 9, 2023, Defendants filed the Motion for Entry and a motion to seal the award. On March 20, 2023, the Court passed the hearing on Defendants’ Motion for Entry On March 22, 2023, the Plaintiffs filed the Motion to Vacate. On April 10, 2023, the Court granted Defendants’ motion to seal and set the Motion to Vacate for hearing on May 1, 2023. The hearings on both the Motion for Entry and the Motion to Vacate have been noticed for May 1, 2023. AUTHORITIES AND ARGUMENT Standard of Review Regarding Arbitration. There “a strong presumption in Texas public policy favoring arbitration and upholding the parties’ intentions.” ASW Allstate Painting & Constr , Inc. v. Lexington Insur . 188 F.3d 307, 310 (5th Cir. 1999) Similarly, the Federal Arbitration Act, 9 U.S.C. §1 - §16, On October 3, 2022, the Court held a status conference regarding the status of the action, including the results of the Parties’ mediation. At the conference, the Plaintiffs acknowledged that they had entered the MSA On January 25, 2023, Plaintiffs’ counsel filed a motion to withdraw, which asserted a “fundamental and foundational disagreement [between Plaintiffs and their counsel] . . . wholly inconsistent with as continuing attorney client relationship.” See Motion filed 1/25/23. On February 13, 2023, the Court granted the motion DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO VACATE THE ARBITRATION AWARD AND, ALTERNATIVELY, MOTION TO COMPEL A SECOND ARBITRATION Page 5 of 13 Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al. FAA embodies a “liberal federal policy favoring arbitration.” AT&T Mobility, LLC v. Concepcion, 131 S. Ct. 1740, 1745 (2011) (quoting Moses H. Cone Mem Hosp v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443 (2006). Courts are directed to “rigorously enforce agreements to arbitrate.” Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987) (internal quotation marks omitted) (citation omitted). Section 2 of the FAA provides that a “written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable.” 9 U.S.C. § 2. When the parties have a valid arbitration agreement, “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration[.]” Mitsubishi Motors Corp. v. Soler Chrysler Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (citation omitted). Because of the strong policy favoring arbitration, “a party seeking to invalidate an arbitration agreement bears the burden of establishing its invalidity.” Carter v. Countrywide Credit Indus., Inc., 362 F.3d 294, 297 (5th Cir. 2004). On application of a party, the courts “shall confirm” an arbitration award “[u]nless grounds are offered for vacating, modifying, or correcting [it] under Section 171.088 or 171.091.” RAC ODE § 171.087. Section 171.088 in turn states in pertinent part: (a) On application of a party, the court shall vacate an award if: (1) the award was obtained by corruption, fraud, or other undue means; (2) the rights of a party were prejudiced by: (A) evident partiality by an arbitrator appointed as a neutral arbitrator; (B) corruption in an arbitrator; or (C) misconduct or willful misbehavior of an arbitrator; DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO VACATE THE ARBITRATION AWARD AND, ALTERNATIVELY, MOTION TO COMPEL A SECOND ARBITRATION Page 6 of 13 Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al. (3) the arbitrators: (A) exceeded their powers; (B) refused to postpone the hearing after a showing of sufficient cause for the postponement; (C) refused to hear evidence material to the controversy; or (D) conducted the hearing, contrary to [various statutory provisions], in a manner that substantially prejudiced the rights of a party; or (4) there was no agreement to arbitrate, the issue was not adversely determined in a proceeding under Subchapter B, and the party did not participate in the arbitration hearing without raising the objection. Id..§ 171.088(a). The statutory text could not be plainer: the trial court “shall confirm” an award unless vacatur is required under one of the enumerated grounds in section 171.088. Id. § 171.087. Here, in light of the facts showing that Plaintiffs agreed to and participated in a fair and impartial arbitration during which they presented arguments and testimony while represented by counsel the Plaintiffs have not, and cannot, sustain their heavy burden of proving sufficient grounds necessary to grant their Motion to Vacate. Accordingly, Defendants request that the Court enter the Arbitration Award. The MSA, Including the Arbitration Provision, Is a Valid and Enforceable Agreement. In Texas, “[t]he intent of the parties should be determined from the language used in the instrument itself, as disclosed within the four corners of the instrument.” Bruner v. Exxon Co., U.S.A., 752 S.W.2d 679, 683 (Tex. App.Dallas 1988, writ denied); see also Republic Nat’l See Transcript of the arbitration at Exhibit DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO VACATE THE ARBITRATION AWARD AND, ALTERNATIVELY, MOTION TO COMPEL A SECOND ARBITRATION Page 7 of 13 Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al. Bank of Dallas v. National Bakers Life Ins. Co., 427 S.W.2d 76, 79 (Tex. App.Dallas 1968, writ ref’d n.r.e.) (“It is the intention and purpose of the contracting parties, as disclosed within the four corners of the instrument, which should control.”). An arbitration agreement “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” FAA, 9 U.S.C. § 2. While state law generally applies to contract interpretation, courts have rejected “state law rules that stand as an obstacle to the accomplishment of the FAA’s objectives.” Indeed, in Texas, a party who signs a document is conclusively presumed to have read and understood its contents. EZ Pawn Corp., 934 S.W.2d at 90 (explaining that failure to read the arbitration agreement does not excuse the party from complying with its provisions). Here, the MSA is a valid and binding agreement under Tex. R. Civ. P. 11, in which Plaintiffs plainly agreed to arbitrate any dispute regarding the MSA. See MSA xhibit 1 to the Arbitration Award filed under seal. Specifically, the Plaintiffs agreed that any dispute over the MSA subject to a mediation and, if the dispute not resolved at the mediation, further subject to a binding arbitration with Judge Wooldridge. The MSA is a valid contract between the parties under Texas law because it is supported by mutual consideration as both Partiesagreed to arbitrate disputes regardingthe MSA upon a lawful demand. This mutuality of obligation is, by definition, sufficient consideration for a contract. See In Re Halliburton Co., 80 S.W.3d 566, 569 (Tex. 2002) recognizing that the parties’ mutual promises to arbitrate are sufficient consideration for their DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO VACATE THE ARBITRATION AWARD AND, ALTERNATIVELY, MOTION TO COMPEL A SECOND ARBITRATION Page of 13 Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al. agreement). Therefore, consistent with the provisions of the FAA and Texas law, the MSA, including its arbitration provision, a valid and enforceableagreement . Accordingly, because the Plaintiffs (while represented by counsel) agreed to arbitrate any dispute regarding the MSA, Plaintiffs’ conclusory challenge to the validity of the arbitration provision lacks merit and should be rejected. Plaintiffs’ DisputeFall s Squarely Within the Arbitration Agreement. Here, the Parties’ MSA broadly provides that any dispute regarding the MSA is subject to a binding arbitration. Pennzoil Explor. & Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1067 (5th Cir. 1998) (broad arbitration clauses “are not limited to claims that literally ‘arise under the contract,’ but rather embrace all disputes between the parties having a significant relationship to the contract regardless of the label attached to the dispute.” also In re Swift Transp. Co., Inc., 279 S.W.3d 403, 408 (Tex. App.—Dallas 2009, orig. proceeding) (holding that agreement to arbitrate disputes “arising out of or relating to the relationship created by the Agreement” includes within its scope plaintiff's tort claims) Here, the Plaintiffs’ dispute regarding the MSA falls within the scope of the MSA’s dispute provision. The Parties agreed that if there was a dispute regarding the MSA, they agreed to another mediation, and if the dispute was not resolved at such mediation, the Parties would participate in a binding arbitration conducted by Judge Wooldridge. There is no dispute that Plaintiffs participated in the second mediation in person (and with their counsel) with Judge Wooldridge. The Plaintiffs and their counsels negotiated the MSA and executed it. As a result, Plaintiffs’ assertions in their Motion to Vacate that they “were not allowed to present their arguments in the negotiations and were not involved with the creation of the settlement agreement” is baseless. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO VACATE THE ARBITRATION AWARD AND, ALTERNATIVELY, MOTION TO COMPEL A SECOND ARBITRATION Page 9 of 13 Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al. In addition, the MSA contained clear and unambiguous provisions governing how the Parties would address and resolve any dispute over the MSA. Specifically, in the MSA, the Parties agreed to participate, and did participate, in a follow up mediation, while represented by their counsel, which ended in an impasse. In the MSA, the Parties also agreed to participate, and did participate, in an arbitration while, again, represented by their respective counsels. The Plaintiffs’ Motion to Vacate presents no justification or evidence to show why they should not be bound by (a) the MSA, which they and their counsel negotiated and executed, or (b) the Arbitration Award resulting from a fair and binding arbitration conducted by Judge Wooldridge, which Plaintiffs fully participated in (while represented by counsel), in accordance with the MSA. Accordingly, the urt should enter the Arbitration Award and deny Plaintiffs’ Motion to Vacate. Alternatively, Defendants move for an order compelling a second binding arbitration with Judge Wooldridge and staying the action pending the arbitration. If the Court Does Not Enter the Arbitration Award (or Grants Plaintiffs’ Motion to Vacate), Defendants Move for an Order Compelling a Second Arbitration, and Staying the Action Pendingthe Arbitration. To determine whether Plaintiffs should be compelled to arbitrate their dispute regarding the MSA the Texas Supreme Court has developed a two step inquiry: (1) there is a valid arbitration clause, and (2) the claims in dispute fall within that agreement’s scope.” In re Rubiola, 334 S.W.3d 220, 223 (Tex. 2011) (citing In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005)); see J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). Because there is a presumption favoring an agreement to arbitrate under the FAA, any doubt regarding the agreement’s scope is resolved in favor of arbitration. In re FirstMerit Bank, N.A. 52 S.W.3d 749, 753 (Tex. 2001). Upon determining that a dispute is subject to arbitration, a court “shall make an order directing the parties to proceed to arbitration in accordance with the terms of DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO VACATE THE ARBITRATION AWARD AND, ALTERNATIVELY, MOTION TO COMPEL A SECOND ARBITRATION Page 10 of 13 Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al. the agreement.” 9 U.S.C. § 4 see also Cantella & Co. v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996) (“Once a party seeking to compel arbitration establishes that an agreement exists under the FAA, and that the claims raised are within the agreement’s scope, the trial court has no discretion but to compel arbitration and stay its proceedings pending arbitration.”) (quotation marks omitted). Indeed, “an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” AT&T Techs. v. Communs. Workers of Am., 475 U.S. 643, 650 (1986). Following a determination of arbitrability, a court should “stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement.” 9 U.S.C. § 3see also In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 195 (Tex. 2007) (noting that the FAA “require[s] courts to stay litigation of issues that are subject to arbitration”). Based on the foregoing if the Court determines not to enter the Arbitration Award, Defendants request that the Court compel a second binding arbitration with Judge Wooldridge in accordance with the terms of the MSA and also, order a stay in the action until an arbitration award or order has been entered IV. CONCLUSION/PRAYER Defendants pray that the Court deny Plaintiffs’ otion to acate the rbitration ward and grant Defendants’ Motion for Entry of the Arbitration ward as an order of the Court. Alternatively, Defendants move for an order (1) compelling a second arbitration with Judge Wooldridge on an expedited basis and no later than within thirty (30) days of the Court’s order and (2) staying the action pending entry of the arbitration award or order. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO VACATE THE ARBITRATION AWARD AND, ALTERNATIVELY, MOTION TO COMPEL A SECOND ARBITRATION Page 11 of 13 Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al. Dated: April 27, 2023 Respectfully submitted, UIRE OODS /s/ Elizabeth Chandler Elizabeth Chandler, SBN: 24097484 E-mail: echandler@mcguirewoods.com UIRE OODS 2000 McKinney Avenue, Suite 1400 Dallas, Texas 75201 Telephone: (214) 932-6400 Facsimile: (214) 932-6499 Jason Huebinger, SBN: E-mail: jhuebinger@mcguirewoods.com UIRE OODS Texas Tower 845 Texas Ave., 24 Floor Houston, TX 77002 Telephone: (713) 571-9191 Facsimile: (713) 571-9652 ATTORNEY FOR DEFENDANTS/COUNTER- PLAINTIFFS BONYM andNATIONSTAR MORTGAGE LLC DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO VACATE THE ARBITRATION AWARD AND, ALTERNATIVELY, MOTION TO COMPEL A SECOND ARBITRATION Page 12 of 13 Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al. CERTIFICATE OF SERVICE The undersigned attorney certifies that on April 27, 2023, a copy of the foregoing instrument was served on all counsel and parties of record via TexFile and electronic mail as follows. Guy Jones and Marla Jones 7025 East Alpine Drive Houston, Texas 77061 houtx061@gmail.com mjjones718@icloud.com PRO SE PLAINTIFFS /s/ Elizabeth Chandler Elizabeth Chandler DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO VACATE THE ARBITRATION AWARD AND, ALTERNATIVELY, MOTION TO COMPEL A SECOND ARBITRATION Page 13 of 13 Cause No. 2019 71004 Jones v. The Bank of N.Y. Mellon, as Trustee, et al.