Preview
NO. 17-DCV-243655
DAVID H. HAMILTON, AS TRUSTEE§ IN THE DISTRICT COURT
OF T. H. TRUST §
Plaintiff and Counter-Defendant, §
§
V. §
ROBERT G. PATE AND JUDY K. PATE§ 434TH JUDICIAL DISTRICT
Defendants and Counter-Plaintiffs §
§
Vv. §
GEORGE M. BISHOP, K. M. BISHOP§
AND DAVID H. HAMILTON, §
INDIVIDUALLY , §
Cross-Defendants § OF FORT BEND COUNTY, TEXAS
DEFENDANTS! MOTION TO DISMISS FOR LACK OF JURISDICTION
NOW COME Defendants, Robert G. Pate and Judy K. Pate, in the above-entitled and
numbered cause, and file this Motion to Dismiss for Lack of Jurisdiction, and show the Court:
I
SUMMARY OF MOTION
Defendants claim this Honorable Court is without authority to determine the subject in
controversy because Plaintiff has no standing to assert the claims raised in the Petition. The Plaintiff
has no justiciable interest in the claims raised.
IL.
REQUIREMENTS OF SUIT ON TRESPASS TO TRY TITLE
A To bring an action in trespass-to-try-title, the Plaintiff must file a formal Petition in
accordance with the Texas Rules of Civil Procedure [Tex. R. Civ. P. 783-809]. The Petition must
state: (1) the real names of the parties and their residences, if known; (2) a legally sufficient
description of the premises; (3) the interest which the Plaintiff claims in the premises; (4) that the
Plaintiff was in possession of the premises or entitled to such possession; (5) that the Defendants
unlawfully entered upon and dispossessed the Plaintiff of the premises and withholds possession;
(6) facts showing rents, profits, or damages if claimed; and (7) a prayer for the relief sought [Tex.
R. Civ. P. 783; see Marshall v. Garcia, 514 S.W.2d 513, 518-519 (Tex. Civ. App.—Corpus Christi
1974, writ ref’d n.r.e.)].
B. Plaintiff's Petition, as amended and supplemented, fails to comply with Rule 793 in
the following respects:
1 The Petition fails to state the real names of the parties and their residences. Even
having had the opportunity to correct name of the Plaintiff as a result of a prior motion by the
Defendants, Plaintiff failed to identify his own residence address.
2 The Petition fails to provide a legally sufficient description of the property which is
the subject of the Plaintiff's claim.
3 The Petition fails to state the interest which the Plaintiff claims in the property.
4. The Petition fails to state that the Plaintiff was or in possession of the premises or is
entitled to such possession.
5 The Petition fails to state that the Defendants unlawfully entered upon and
dispossessed the Plaintiff of the premises and withholds possession.
6 The Petition fails to state Plaintiff's damages.
7
The Petition fails to include a prayer for the relief sought.
Cc. The requirements of Rules 783 — 809 are mandatory. Plaintiff has wholly failed and
refused to comply with the applicable rules for a case in trespass to try title.
D Although a few of the requirements of Rules 783 — 809 may be cured by repleading,
several may not be cured and cannot be cured by the Plaintiff. Plaintiff has no judiciable interest in
the property which is the subject of this case. As a result, Plaintiff has no standing to bring this
lawsuit, and this court lacks subject matter jurisdiction. [Walston v. Lochart, 62 S.W.3d 257. 259
(Tex.App. - Waco 2001, pet, denied.)].
Til.
PLAINTIFFS BURDEN
A The Plaintiff in an action in trespass-to-try-title must recover, if at all, on the strength
of the Plaintiff's own title and may not rely on the weakness of the Defendants’ title [Kilpatrick v.
McKenzie, 230 S.W.3d 207, 214 (Tex. App —Houston [1 4th Dist.] 2006, no pet.) (when Plaintiff fails
to establish right to title in trespass-to-try-title action, judgment must be entered for Defendants even
if Defendants fail to establish pleaded title, because the “harsh” rule is that Plaintiff may recover
only when the Plaintiff’s own title has been affirmatively proven); Singleton v. Terrel, 727 S.W.2d
688, 690 (Tex. App.—Texarkana 1987, no writ) (argument that title claim of Defendants was faulty
was irrelevant in absence of showing of Plaintiff's title); Reinhardt v. North, 507 S.W.2d 589, 591
(Tex. Civ. App—Waco 1974, writ ref'd n.r.e.); Gray v. Joyce, 485 SW.2d 311, 313 (Tex. Civ.
App.—Tyler 1972, writ ref'd n.r.e.)].
B In this case, the Plaintiff cannot show a regular chain of title from the sovereign.
Plaintiff has failed to show, and cannot show, such a chain of title.
Iv.
PLAINTIFF CANNOT PROVE REGULAR CHAIN OF
CONVEYANCES FROM THE SOVEREIGN
A plaintiff may recover in trespass to try title by proving a regular chain of conveyances from
the sovereignty of the soil [Radcliffe v. Tidal Petroleum, Inc.. 521 §.W.3d 375,379 (Tex. App.—San
Antonio 2017, pet. denied); Coker v. Geisendorff, 370 S.W.3d 8. 12 (Tex. App.—Texarkana 2012.
no pet.); Kilpatrick v. McKenzie, 230 S.W.3d 207, 214 (Tex. App.—Houston [14th Dist.] 2006,
no
pet.); Oswald v. Staton, 421 S.W.2d 174, 175 (Tex. Civ. App.—Waco 1967. writ tef'dn.wre.)]. In
order to prove title in this manner, the plaintiff must establish a land grant or patent from the state
or sovereign showing that the title vested in the original grantee or patentee has passed by successive
conveyances to the Plaintiff [Mills v. Snyder, 8 S.W.2d 790, 791 (Tex. Civ. App——San Antonio
1928, no writ); see, e.g., Coker v. Geisendorff, 370 S.W.3d 8, 13 (Tex. App.—Texarkana
2012, no
pet.) (abstract of title showed regular and uninterrupted chain of title from sovereign to Plaintiff as
to disputed tract)]. Therefore, if the Plaintiff fails to establish the original land grant from the
sovereign, or any link in the chain of conveyances from that grant, the title claim must fail.
Vv.
GAPS IN CHAIN OF TITLE TO THE SOVEREIGN
A Plaintiff is unable to show an unbroken chain of title back to the sovereign.
B Plaintiff has claimed and has argued before the court that the miscellaneous copies
of various documents filed herein by Cross-Defendant Bishop on July 14, 2020 constitute the
Plaintiff's abstract of title as required by Rules 791— 793. Defendants have previously filed their
motion objecting to the supposed “abstract of title” and hereby reserve their right to be heard on such
motion and to amend such motion as may be appropriate. However, without reference to the
informalities of the Plaintiff's filing, Defendants hereafter show the title claimed by the Plaintiff as
proven — or not proven — by its own abstract of title:
C. Plaintiffs have also claimed and argued before the court that certain document
entitled "Historical Title Search" dated June 18, 2020, prepared by Courthouse Specialists and filed
with the court on July 30, 2020, constitutes its expert's “abstract of title,” (Exhibit A, attached
hereto). Again, without waiving any of Defendants' arguments made or to be made in any motion
or objection to the abstract of title filed by the Plaintiff, plaintiff would show the following defects
in its title actually reflected in Plaintiffs own "abstract."
D Although the “abstract” mentions the substitute trustee's deed dated December 19,
2016 naming KM Bishop as the grantor and TH Trust as the grantee, (Exhibit B, attached hereto)
neither the abstract nor that deed identifies a record chain of title on KM Bishop's authority to act
as substitute trustee or grantor. It does state that the note and deed of trust were assigned to George
M. Bishop by the president of Mulligan Medical Consultants, but it does not refer to any recorded
document. In the absence of a recorded assignment, there exists a gap in Plaintiff's chain of title.
E. Plaintiff's abstract identifies Coastal Sun Development, Inc. as the title holder by
virtue of the deed dated November 6, 2000 (Exhibit A, Page 2). The abstract does not identify any
conveyance from Coastal Sun Development, Inc. to George M. Bishop. Bishop has claimed before
this court, in the pleadings, and in various affidavits filed in the real property records that he is the
title holder of the property and that the alleged trustee's sale was conducted at his behest. There is
simply no record evidence of title in Bishop.
F, Plaintiff's chain of title to the sovereign is further interrupted, according to its own
abstract of title, by the absence of any conveyance of record out of the C. B. Greenwood, who took
title to the property on July 22, 1842 (Exhibit A, Page 4). The chain of title from Coastal Sun
Development, Inc., mentioned in the prior paragraph, traces back to a deed from Placide Forstale to
Alexander McCloy dated August 30, 1851. Plaintiff's abstract notes that there is no conveyance out
of Greenwood nor to Forstale, thus creating a gap in the title of Coastal Sun Development, Inc. back
to the sovereign.
G In summary, plaintiff cannot trace its title back to the sovereign for the reason that
its own abstract of title displays a gap in the chain of title between Bishop and Coastal Sun
Development, Inc. and a second gap in the chain of title between Greenwood and Forestale. These
gaps in title prove that Plaintiff does not have good title to the property, and therefore cannot satisfy
the rules for maintaining a suit in trespass to try title, specifically that it has an interest which it
claims in the property.
H. A Plaintiff who has not interest at all in the land lacks standing to assert a trespass
to try title action [Walston v. Lockhart, 62 S.W.3d 257, 259 (Tex. App.-Waco 2001, pet. denied) (sale
of property in receivership termiated any interest of plaintiff in land and precluded standing to bring
trepass to try title action)].
I Plaintiff's title therefore fails as a matter of law.
VI.
STATUTE OF LIMITATIONS NULLIFIES LIEN FORECLOSURE
A Even if Plaintiff were able to show a chain of title to the sovereign through Bishop,
the right to enforce the lien expired, before the alleged trustee’s deed was filed. Tex. Civ. Prac. &
Rem. Code § 16.035 provides the statute of limitations for enforcement of a lien against real
property;
(a) A person must bring suit for the recovery of real property under a real
property lien or the foreclosure of a real property lien not later than four years
after the day the cause of action accrues.
(b) A sale of real property under a power of sale in a mortgage or deed of trust
that creates a real property lien must be made not later than four years after the
day the cause of action accrues.
(c) On the expiration of the four-year limitations period, the real property lien
and a power of sale to enforce the real property lien become void.
B. The following documents are recorded of record, and apparently are attempts by
Bishop to legitimize the claim by the Plaintiff. However, they do two things, which only go to
weaken Plaintiff's claim: 1) they failed to fill the gap in the chain of title from Plaintiff to Coastal
Sun Development, Inc.; and 2) they provide evidence that the lien allegedly foreclosed upon and
upon which plaintiff's trustee's deed relies, was void and unenforceable at the time of the sale.
1 Deed of trust filed on August 17, 2005 executed by Coastal Sun
Development, Inc. for the benefit of Mulligan Medical Consultants,
LLC to secure a promissory note in the original principal amount of
$400,000 executed by Grand Parkway Equities, LLC. (Exhibit C,
attached hereto). (This is the lien created by this deed of trust which
the trustee's deed purports to foreclose.)
Instrument entitled "Appointment of Substitute Trustee” recorded on
October 16, 2007 stating that the Coastal note was in default and that
ithad been accelerated.. The document, signed by Bishop, describes
himself as the beneficiary of the deed of trust. However, no
assignment of the note and lien from Mulligan to Bishop exists.
Instrument entitled "Affidavit of Service by the Holder of the Note",
recorded on October 16, 2007 and signed by Bishop, (Exhibit D,
attached hereto). This instrument says that Bishop has instructed the
Substitute Trustee to enforce the power of sale contained in the deed
of trust. The instrument further states that a default occurred on the
note on August 9, 2006, the original maturity date of the Coastal note.
Instrument entitled "Affidavit of Noteholder" recorded on October 16, 2007,
wherein Bishop swears that he is the owner and holder of the Coastal note
secured by the deed of trust.
Cc. None of the foregoing instruments are mentioned in the plaintiffs own “abstract of
title”. There simply is no recorded conveyance of any interest in the property being granted to
Bishop either as trustee or as owner.
D Under applicable law, the statute of limitations on enforcement of a lien against real
estate runs on the fourth anniversary of the date of the maturity of the debt. In this case, limitations
ran on August 9, 2010, based upon the sworn earlier affidavit of Bishop. Nevertheless, plaintiff's
title relies on a trustee's deed not filed until December 19, 2016, more than six years following the
running of the statute of limitations.
E. The cases in which the courts have recognized the expiration of a lender’s lien
rights are legion. Following is a sampling of the cases where the courts have upheld the above
statute of limitations.
a. Swedlund v. Banner, 970 S.W.2d 107. 1998 Tex. App. LEXIS 2879 (Tex. App.
Corpus Christi May 14, 1998, no pet.).
b. Tex. Civ. Prac, & Rem. Code Ann. § 16.035(a) states that a person must bring
suit for the recovery of real property under a real property lien or the foreclosure
of a real property lien not later than four years after the day the cause of action
accrues. Aguero v. Ramirez, 70 S.W.3d 372, 47 U.C.C. Rep. Serv. 2d (CBC)
1085. 2002 Tex. App. LEXIS 1518 (Tex. App. Corpus Christi Feb. 28, 2002, no
pet.).
c. If limitations on enforcement of a real property lien has expired, the lien is
invalidated by operation of law [Tex. Civ. Prac. & Rem. Code § 16.035(d)—teal
property lien and power of sale become void on expiration of limitations period].
d. A sale of real property under a power of sale in a mortgage or deed of trust
must be made not later than four years after the day the cause of action accrues
[Tex. Civ. Prac. & Rem. Code § 16.035(b)].
e. Summary judgment was proper for the purchaser of property against an
assignee of a deed of trust because the record contained no evidence of a legal
impediment that prevented the assignee from asserting and preserving its non-
judicial foreclosure remedy within the four-year statute of limitations so as to
warrant a tolling of limitations during the pendency of the purchaser’s first quiet
title action. U.S. ROF II Legal Title Trust 2015-I v. Morlock, L.L.C., No. 14-18-
00332-CV, 2020 Tex. App. LEXIS 304 (Tex. App. Houston 14th Dist. J Unde:
Tex. Civ. Prac. & Rem. Code Ann. § 16.035(b),
f. A sale of real property under a power of sale in a mortgage or deed of trust that
creates a real property lien must be made not later than four years after the day the
cause of action accrues; when the four-year period expires, the real property lien
and power of sale to enforce the lien become void, pursuant to Tex. Civ. Prac, &
Rem. Code Ann. § 16.035(d). Holy Cross Church of God in Christ v. Wolf, 44
S.W.3d 562, 2001 Tex. LEXIS 23 (Tex. 2001).
g. Bank and its successors failed to foreclose on the Property within the permitted
four-year period. Under Texas law, the lien on debtor's property securing the Note
was void. In re Williams, No. 16-33276, 2017 Bankr. LEXIS 2172 (Bankr. $.D.
Tex. Aug. 3, 2017).
h. Court erred in granting declaratory relief because the four-year limitations
periods expired before suit was filed, and the real-property lien and the power of
sale to enforce the lien became unenforceable before suit was filed. Powell v. CIT
Bank, N.A., No. 14-15-00949-CV, 2017 Tex. App. LEXIS 5259 (Tex. App.
Houston 14th Dist. June 8, 2017).
i. The bank's real-property lien and power of sale to enforce the lien became
unenforceable. Powell v. CIT Bank, N.A., No. 14-15-00949-CV, 2016 Tex. App.
LEXIS 13284 (Tex. App. Houston 14th Dist. Dec. 15, 2016).
j. Homeowners' summary judgment evidence conclusively established that the
lender's judicial foreclosure suit was barred by limitations; the trial court erred by
granting the lender's summary judgment motion and denying the homeowners’
summary judgment motion. Landers v. Nationstar Mortg.. LLC, 461 §.W.3d 923
2015 Tex. App. LEXIS 3419 (Tex. App. Tyler Apr. 8. 2015, no pet.).
k. The lien expired in January 2012, and its August 2012 foreclosure action was
barred by the statute of limitations. Callan v. Deutsche Bank Trust Co. Ams., 11
10
E. Supp. 3d 761, 2014 U.S. Dist. LEXIS 41567 (S.D. Tex. 2014), amended, 93 F.
Supp. 3d 725, 2015 U.S. Dist. LEXIS 35626 (S.D. Tex. 2015).
1. The limitations period began running when the prior holder of the note
accelerated the note; thus, the assignee’s attempted foreclosure more than four
years later was beyond the statute of limitations period under Tex. Civ. Prac. &
Rem. Code Ann. § 16.035(e). Burney v. Citigroup Global Mkts. Realty Corp.. 244
S.W.3d 900, 2008 Tex. App. LEXIS 973 (Tex. App. Dallas Feb. 8, 2008, no pet.).
m. In a former property owner’s suit seeking excess proceeds from a tax
foreclosure sale, by failing to bring suit on its real property lien within four years
of the accrual of its cause of action pursuant to Tex. Civ. Prac. & Rem. Code Ann.
§ 16.035(d), the creditor lost all remedies for the enforcement of its lien Woodside
Assur., Inc. v. N.K. Res., 175 S.W.3d 421, 2005 Tex. App. LEXIS 5130 (Tex.
App. Houston Ist Dist. June 30, 2005, no pet.).
VII.
JUSTICIABLE INTEREST AND STANDING AS JURISDICTIONAL ISSUES
A A person bringing an action must show that the person has a justiciable interest in the
subject matter of the litigation.' In other words, for a person to maintain an action, it is necessary
that the person have standing to prosecute the claim that is the subject matter of the action?
‘Heckman v. Williamson County, 369 $.W.3d 137, 147-148 (Tex. 2012); Lorentz v. Dunn, 171
S.W.3d 854, 856 (Tex. 2005) (claimant must have “justiciable interest”); Austin Nursing Ctr., Inc. v.
Lovato, 171 S.W.3d 845, 848 (Tex. 2005) (same); Unifund CCR Partners v. Watson, 337 §.W.3d 922,
925 (Tex. App.—Amarillo 2011, no pet.) (issue of standing focuses on “justiciable interest”). .
°Neeley v. W. Orange Cove Consol. Indep. Sch, Dist., 176 $.W.3d 746, 772-776 (Tex. 2005).
11
B. Under the general rule of standing, a person has standing to sue when he or she is
personally aggrieved as a result of the invasion of the person’s justiciable interest? Borrowing from
federal jurisprudence, many Texas courts state that whether a person is personally aggrieved depends
on whether the person has suffered an “injury in fact” that is “concrete” and particularized.*
Cc The assertion of private rights of action requires the claimant to have sustained a legal
injury as a result of a breach of a legal duty, as distinguished from an injury in fact.
D Standing is implicit in the open courts provision of the Texas Constitution, which
contemplates access to the courts only for litigants who have been threatened with or have sustained
an injury.°
E. The Texas Supreme Court has held that because standing is a component of subject
matter jurisdiction it cannot be waived and may be raised for the first time on appeal.’ This holding
3See, e.g., Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 249 (Tex. App—Dallas 2005, no
pet.); see generally Dorsaneo, The Enigma of Standing Doctrine in Texas Courts, 28 Rev. Litig. 35
(2008).
4See Polaris Industries v. McDonald, 119 $.W.3d 331, 338-339 (Tex. App.—Tyler 2003,.no
pet.).
5See Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex. 1976); see also Am. Nat. Ins. Co. v.
Hicks, 35 S.W.2d 128,131 (Tex. Comm. App. 1931, jdgmt. adopted) (“the right to maintain an action
depends upon the existence of what is termed a cause of action, which involves the combination of a
right on the part of the Plaintiff and a violation of such right by Defendants”); Exxon Corp. v. Pluff, 94
S.W.3d 22, 26 (Tex. App—Tyler 2002, pet. denied) (without breach of legal right belonging to Plaintiff,
Plaintiff has no standing; in property damage suit against oil company, because injury had occurred
before Plaintiff bought land and because deed contained no assignment of any cause of action, Plaintiff
lacked standing); A// Seasons Window & Door Mfg., Inc. v. Red Dot Corp., 181 S.W.3d 490, 496-497
(Tex. App.-Texarkana 2005, no pet.) (the company that was not party to contact did not have standing
to sue for usury).
‘Fin. Comm'n of Tex. v. Norwood, 418 S.W.3d 566, 580 (Tex. 2013); South Texas Water
Authority v. Lomas, 223 S.W.3d 304, 307 (Tex. 2007); Texas Ass’n of Bus. v. Air Control Bd., 852
S.W.2d 440, 444 (Tex. 1993); see Tex. Const. art. 1, § 13 (open courts provision).
"Texas Ass'n of Business v. Air Control Ba., 852 S.W.2d 440, 445-446 (Tex. 1993).
12
expressly overruled previous case law in Texas, which held that lack of standing must be asserted
by the opposing party in the trial court in order to preserve error and avoid waiving the standing
issue.
WHEREFORE, PREMISES CONSIDERED, the Plaintiffs having not pleaded any
matters in which they have a justiciable interest, Defendants pray this Honorable Court will dismiss
the Plaintiff's Petition, and for such other and further relief that may be awarded at law or in equity.
Respectfully submitted,
HOLOWAY JONES LAW FIRM PLLC
By:/s/ Russell C. Jones
Russell C. Jones
Texas Bar No. 10954300
Email: rjones@jonesattorneys.com
407 Julie Rivers Drive
Sugar Land, TX 77478
Tel. (281) 242-8100
Fax. (281) 242-7474
Attorney for Defendants
Robert G. Pate and Judy K. Pate
13
VERIFICATION
BEFORE ME, the undersigned authority, personally appeared Russell C. Jones, who being
duly sworn, deposed as follows:
"My name is Russell C. Jones. I am at least 18 years of age and of sound mind. I am
personally acquainted with the facts alleged in Defendants' Motion to Dismiss for Lack of
Jurisdiction. [hereby swear that the factual statements in support of Defendants' Motion to Dismiss
for Lack of Jurisdiction are true and CO to
Russell C. Jones
SUBSCRIBED AND SWORN TO BEFORE ME on December , 2021, by Russell
C. Jones.
Notary Public, State of Texas
ws wiz,
BRENDA K FREY
Notary Public, State of
Texas;
Comm. Expires 05-23-
2022
Tanti Notary 1D 459838-6
14
CERTIFICATE OF SERVICE
Icertify that on December zZ, 2021, a true and correct copy of the foregoing Defendants’
Motion to Dismiss for Lack of Jurisdiction was served on Jeffrey R. Vaughan and George M. Bishop
electronically through the electronic filing manager.
/s/ Russell C. Jones
Russell C. Jones
15s
NO. 17-DCV-243655
DAVID H. HAMILTON, AS TRUSTEE§ IN THE DISTRICT COURT
OF T. H. TRUST §
Plaintiff and Counter-Defendant, §
§
Vv. §
ROBERT G. PATE AND JUDY K. PATE§ 434TH JUDICIAL DISTRICT
Defendants and Counter-Plaintiffs §
§
Vv §
GEORGE M. BISHOP, K. M. BISHOP§
AND DAVID H. HAMILTON, §
INDIVIDUALLY ,
Cross-Defendants § OF FORT BEND COUNTY, TEXAS
TABLE OF EXHIBITS
Exhibit Number Date of Document Title of Document
A June 20, 2020 Historical Title Search
B December 19, 2016 Substitute Trustee’s Deed
August 9, 2005 Deed of Trust
October 4, 2007 Affidavit of Service by Holder of the
Note
Filed
7/30/2020 4:06 PM
Beverley McGrew Walker
District Clerk
Fort Bend County, Texas
Donald Evans
COURTHOUSE SPECIALISTS
9800 Northwest Freeway, Suite 400
Houston, TX 77092
713-683-4027
HISTORICAL TITLE SEARCH
June 18, 2020 No. 2034203A.
Effective Date: June 12, 2020
Legal Description:
Being that certain 4.7695 acres of land in the Knight and White League, A-46, Fort Bend
County, Texas.
As requested, we have searched the records of Fort Bend County, Texas,
pertaining to the property referenced above from September 27, 1838 through June 12,
2020 and have determined the following:
DATE: March 10, 2020
INSTRUMENT: Correction Instrument
GRANTOR: JAB Development Corporation
GRANTEE: Robert G. Pate and Judy K. Pate
COMMENTS:
REFERENCE: Fort Bend County Clerk’s File Number 2020029045
DATE: December 19, 2016
INSTRUMENT Substitute Trustee’s Deed
GRANTOR: K.M. Bishop
GRANTEE: T.H. Trust
COMMENTS:
REFERENCE: Fort Bend County Clerk’s File Number 2017106823
DATE: September 19, 2017
INSTRUMENT: Quitclaim Deed
GRANTOR: United States of America
GRANTEE: Robert G. Pate and Judy K. Pate
COMMENTS:
REFERENCE: Fort Bend County Clerk’s File Number 2017103169
EXHIBIT A
DATE: November 6, 2000
INSTRUMENT: Special Warranty Deed with Vendor’s Lien
GRANTOR: DMM Holdings, L.P., Hazel Dutton Trust, Robert Owen Milby,
Jack Neill Milby and Barbara Maresh Mitchell
GRANTEE: Coastal Sun Development
COMMENTS:
REFERENCE: Fort Bend County Clerk’s File Number 2000096355
DATE: May 31, 1996
INSTRUMENT: Special Warranty Deed
GRANTOR: Robert O. Milby, Trustee of the Hazel Dutton Trust
GRANTEE: DMM Holdings, L.P.
COMMENTS:
REFERENCE: Fort Bend County Clerk’s File Number 9635881
DATE: May 31, 1996
INSTRUMENT: Special Warranty Deed
GRANTOR: Hazel Dutton
GRANTEE: DMM Holdings, L.P. and Robert O. Milby, Trustee of the Hazel
Dutton Trust
COMMENTS:
REFERENCE: Fort Bend County Clerk’s File Number 9635880
DATE: February 10, 1978
INSTRUMENT: Partition Deed
GRANTOR: Bert F. Winston and Marjorie Winston Bailey
GRANTEE: Hazel Dutton
COMMENTS:
REFERENCE: Volume 762, Page 269 of the Fort Bend County Deed Records
DATE: January 3, 1938
INSTRUMENT: Deed
GRANTOR: J. R. Farmer and Berta Farmer
GRANTEE: Bert F. Winston
COMMENTS:
REFERENCE: Volume 172, Page 168 of the Fort Bend County Deed Records
DATE: November 26, 1924
INSTRUMENT: Deed
GRANTOR: Second National Bank of Houston, f/k/a The Lumbermans
National Bank
GRANTEE: J. R. Farmer
COMMENTS:
REFERENCE: Volume 108, Page 200 of the Fort Bend County Deed Records
DATE: December 7, 1920
INSTRUMENT. Trustee’s Deed
GRANTOR: H. A. Arnold, Jr., Trustee
GRANTEE: The Lumbermans National Bank
COMMENTS:
REFERENCE: Volume 88, Page 517 of the Fort Bend County Deed Records
DATE: October 28, 1914
INSTRUMENT Deed
GRANTOR: Ben S. Campbell and Lucile F. Campbell
GRANTEE: John H. Blair and Velma Blair
COMMENTS:
REFERENCE: Volume 69, Page 263 of the Fort Bend County Deed Records
DATE: December 14, 1912
INSTRUMENT Warranty Deed
GRANTOR: Cane & Rice Belt Irrigation Company
GRANTEE: Ben S. Campbell
COMMENTS:
REFERENCE: Volume 65, Page 116 of the Fort Bend County Deed Records
DATE: June 24, 1907
INSTRUMENT Deed
GRANTOR: J. F. McCloy and Alice McCloy
GRANTEE: Cane & Rice Belt Irrigation Company
COMMENTS:
REFERENCE: Volume 37, Page 633 of the Fort Bend County Deed Records
DATE: June 17, 1907
INSTRUMENT. Deed
GRANTOR: Mattie Dillard
GRANTEE: J. F. McCloy
COMMENTS:
REFERENCE: Volume 37, Page 613 of the Fort Bend County Deed Records
DATE: March 8, 1895
INSTRUMENT. Deed
GRANTOR: John McCloy, et al
GRANTEE: Mattie Dillard
COMMENTS:
REFERENCE: Volume 3, Page 233 of the Fort Bend County Deed Records
DATE: April 22, 1891
INSTRUMENT: Deed
GRANTOR: Priscilla McCloy
GRANTEE: John McCloy, et al
COMMENTS:
REFERENCE: Volume X, Page 83 of the Fort Bend County Deed Records
DATE: January 17, 1876
INSTRUMENT Deed
GRANTOR: John McCloy
GRANTEE: Priscilla McCloy
COMMENTS:
REFERENCE: Volume K, Page 575 of the Fort Bend County Deed Records
DATE: December 21, 1865
INSTRUMENT Deed
GRANTOR: Priscilla McCloy
GRANTEE: John McCloy
COMMENTS:
REFERENCE: Volume G, Page 743 of the Fort Bend County Deed Records
DATE: February 3, 1852
INSTRUMENT Deed
GRANTOR: Alexander McCloy
GRANTEE: Priscilla McCloy
COMMENTS:
REFERENCE: Volume B, Page 717 of the Fort Bend County Deed Records
DATE: August 30, 1851
INSTRUMENT. Deed
GRANTOR: Placide Forstale
GRANTEE: Alexander McCloy
COMMENTS: No conveyance is found filed of record into Placide Forstale or out
of C. B. Greenwood for the subject tract.
REFERENCE: Volume B, Page 655 of the Fort Bend County Deed Records
DATE: July 22, 1842
INSTRUMENT. Deed
GRANTOR: James Knight
GRANTEE: C. B. Greenwood
COMMENTS:
REFERENCE: Volume A, Page 352 of the Fort Bend County Deed Records
DATE: March 7, 1842
INSTRUMENT: Deed
GRANTOR: James B. Miller and W. N. Kirk, Trustees
GRANTEE: James Knight
COMMENTS:
REFERENCE: Volume A, Page 328 of the Fort Bend County Deed Records
DATE: September 27, 1838
INSTRUMENT: Deed
GRANTOR: Government of Mexico
GRANTEE: James Knight and Walter White
COMMENT:
REFERENCE: Volume A, Page 103 of the Fort Bend County Deed Records
Courthouse Specialists disclaims any warranties, expressed or implied concerning this
information. Courthouse Specialists liability for errors or omissions in this information
shall be limited to the amount paid for this report. By accepting this form, the party
requesting the information agrees that the disclaimer of warranties and liability limitation
contained in this paragraph is a part of its contract with Courthouse Specialists and shall
cover all actions whether arising hereunder by statute, in contract or in tort.
Very truly yours,
Courthouse Specialists
A
Ce
a
Chris Layne
Abstractor
LIMITATION OF LIABILITY: THE LIABILITY OF EITHER PARTY WITH RESPECT TO THIS INFORMATION OR
ANY ACT IN CONNECTION HEREWITH WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED
THE PRICE OF THE SERVICES OR PRODUCTS SOLD HEREUNDER OR THE PRICE OF THAT PORTION OF SUCH
SERVICES OR PRODUCTS ON WHICH LIABILITY IS ASSERTED. COURTHOUSE SPECIALISTS (SELLER) MAKES
NO WARRANTY WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, AS TO THE QUALITY, FITNESS,
SUITABILITY, CONFORMITY, OR MERCHANTABILITY OF THE SERVICES OR PRODUCTS SOLD. IF THE
TRANSACTION IN QUESTION IS ARISING FROM OR RELATED TO AN AUCTION OR FORECLOSURE, INCLUDING
WITHOUT LIMITATION A TAX AUCTION, HOA AUCTION OR SIMILAR AUCTION PROCEEDING, THE BUYER
TAKES THE PROPERTY SUBJECT TO ALL LIENS, ENCUMBRANCES AND OTHER MATTERS OF RECORD
WHETHER OR NOT REFLECTED ON THE CERTIFICATE.
* a.
On
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Cisne TRUSTEE’S DEED
eae
F TEXAS KNOW ALL MEN BY THESE PRESENTS
INTY OF FORT BEND
K.M. Bishop of Alpine, Texas was appointed Substitute Trustee
int tothe Deed of Trust of August 9, 2005 in which Grand Parkway Equities,
res 000.00 from Mulligan Medical Consultants, L.L.C. on August
° 5.7) ee amount was secured by the same Deed of Trust and
WHEREAS t fault in the payment of the note secured by the Deed of
Trust, the propertyein of 4.7695 acres of real property as further
Gen
described th EXéil ‘Avatfached hereto and incorporated herein for all purposes
was properly,ly ted-by me for foreclosure on October 9, 2007. The foreclosure
took place onthe fig Tuess sqay of November, 2007 which was November 6, 2007.
Prior to the forecto: ea oeNe Trust was filed in the Real Property Records
of Fort Bend County; Sunder Clerk’s File Number 2005100438 and recorded
in the Deed of Trust Récordis.of Fort, Bend County, Texas. The Deed of Trust
secured payment of inde6 tiedness 0 redt0. Mulligan Medical Consultants, L.L.C.
Mulligan Medical Consulta ong
The note and Deed of ep reaeetoste George M. Bishop by the president of
eLC-on August 4, 2006. An Affidavit Of Service By
the Holder of the Note was fi ee a8 ar in'the Official Public Records of
Fort Bend County on October 16, 2007.4
Bishop was appointed Substitute rrigteetyake
which instrument was filed and recortied in th
sya Number 20071287872. K.M.
M. Bishop on October 4, 2007
fficial Public Records of Fort
Bend County on October5, 2007 in Clerk's ife Numb r 2007124343,
At the foreclosure sale, the 4.7695 acres oflarid int Knight & White League, A-
rae
46 in Fort Bend County, Texas as more parti ad éscribied in EXHIBIT A
“attached hereto and incorporated herein for all eapur wes sold to the highest
bidder, T.H. Trust, a Texas trust.
mt
Pursuant to the powers vested in me by the terms. of Sesh argrust of August
9, 2005, | hereby grant, devise and convey the prope: escr}ib nein and In
’ EXHIBIT A to T.H. Trust, a Texas trust.
itgess my hand and signature on this the 14 date on Desam
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O me on his oath that the above Substitute Trustee’s Deed
and his free act and deed and that it was his intention to
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William, a 599, Fort Bend County, Texas, being the same called 4.7695
ane wanesapd de: CT TWO” by deed to Coastal Sun Development, Inc. by
deed recorded und fer AoMd County Clerk’s File Number 2000096355, and being more
particularly see ed bfmetesed bounds as follows:
COMMENCING ‘ (5Bin iron{fgad with cap marked "Carter & Burgess, Inc." (herein
after referred to asa Int inn fogs cap) on the south line of a called 16.4750 acre tract
described in a deed to Sun, (Coastal lopment, Inc. on recorded under Fort Bend County
Clerk's File Number L99sbaegsirant as being the northwest comer of the called 473.176 acre
tract described as "Tract 1” i d id Souslr Plantation, Inc. recorded under Fort Bend
County Clerk's File Number 9 BA
THENCE, South 02 degrees 39 Vee,4 seconds
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Volume 762 Page 275 of the Deed Reco. ee me and to a set 5/8 inch iron rod
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a set 5/8 inch iron rod with cap and the POINT OF BEG: GC erein described tract:
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NO. 17-DCV-243655 DAVID H. HAMILTON, AS TRUSTEE§ IN THE DISTRICT COURT OF T. H. TRUST § Plaintiff and Counter-Defendant, § § V. § ROBERT G. PATE AND JUDY K. PATE§ 434TH JUDICIAL DISTRICT Defendants and Counter-Plaintiffs § § Vv. § GEORGE M. BISHOP, K. M. BISHOP§ AND DAVID H. HAMILTON, § INDIVIDUALLY , § Cross-Defendants § OF FORT BEND COUNTY, TEXAS DEFENDANTS! MOTION TO DISMISS FOR LACK OF JURISDICTION NOW COME Defendants, Robert G. Pate and Judy K. Pate, in the above-entitled and numbered cause, and file this Motion to Dismiss for Lack of Jurisdiction, and show the Court: I SUMMARY OF MOTION Defendants claim this Honorable Court is without authority to determine the subject in controversy because Plaintiff has no standing to assert the claims raised in the Petition. The Plaintiff has no justiciable interest in the claims raised. IL. REQUIREMENTS OF SUIT ON TRESPASS TO TRY TITLE A To bring an action in trespass-to-try-title, the Plaintiff must file a formal Petition in accordance with the Texas Rules of Civil Procedure [Tex. R. Civ. P. 783-809]. The Petition must state: (1) the real names of the parties and their residences, if known; (2) a legally sufficient description of the premises; (3) the interest which the Plaintiff claims in the premises; (4) that the Plaintiff was in possession of the premises or entitled to such possession; (5) that the Defendants unlawfully entered upon and dispossessed the Plaintiff of the premises and withholds possession; (6) facts showing rents, profits, or damages if claimed; and (7) a prayer for the relief sought [Tex. R. Civ. P. 783; see Marshall v. Garcia, 514 S.W.2d 513, 518-519 (Tex. Civ. App.—Corpus Christi 1974, writ ref’d n.r.e.)]. B. Plaintiff's Petition, as amended and supplemented, fails to comply with Rule 793 in the following respects: 1 The Petition fails to state the real names of the parties and their residences. Even having had the opportunity to correct name of the Plaintiff as a result of a prior motion by the Defendants, Plaintiff failed to identify his own residence address. 2 The Petition fails to provide a legally sufficient description of the property which is the subject of the Plaintiff's claim. 3 The Petition fails to state the interest which the Plaintiff claims in the property. 4. The Petition fails to state that the Plaintiff was or in possession of the premises or is entitled to such possession. 5 The Petition fails to state that the Defendants unlawfully entered upon and dispossessed the Plaintiff of the premises and withholds possession. 6 The Petition fails to state Plaintiff's damages. 7 The Petition fails to include a prayer for the relief sought. Cc. The requirements of Rules 783 — 809 are mandatory. Plaintiff has wholly failed and refused to comply with the applicable rules for a case in trespass to try title. D Although a few of the requirements of Rules 783 — 809 may be cured by repleading, several may not be cured and cannot be cured by the Plaintiff. Plaintiff has no judiciable interest in the property which is the subject of this case. As a result, Plaintiff has no standing to bring this lawsuit, and this court lacks subject matter jurisdiction. [Walston v. Lochart, 62 S.W.3d 257. 259 (Tex.App. - Waco 2001, pet, denied.)]. Til. PLAINTIFFS BURDEN A The Plaintiff in an action in trespass-to-try-title must recover, if at all, on the strength of the Plaintiff's own title and may not rely on the weakness of the Defendants’ title [Kilpatrick v. McKenzie, 230 S.W.3d 207, 214 (Tex. App —Houston [1 4th Dist.] 2006, no pet.) (when Plaintiff fails to establish right to title in trespass-to-try-title action, judgment must be entered for Defendants even if Defendants fail to establish pleaded title, because the “harsh” rule is that Plaintiff may recover only when the Plaintiff’s own title has been affirmatively proven); Singleton v. Terrel, 727 S.W.2d 688, 690 (Tex. App.—Texarkana 1987, no writ) (argument that title claim of Defendants was faulty was irrelevant in absence of showing of Plaintiff's title); Reinhardt v. North, 507 S.W.2d 589, 591 (Tex. Civ. App—Waco 1974, writ ref'd n.r.e.); Gray v. Joyce, 485 SW.2d 311, 313 (Tex. Civ. App.—Tyler 1972, writ ref'd n.r.e.)]. B In this case, the Plaintiff cannot show a regular chain of title from the sovereign. Plaintiff has failed to show, and cannot show, such a chain of title. Iv. PLAINTIFF CANNOT PROVE REGULAR CHAIN OF CONVEYANCES FROM THE SOVEREIGN A plaintiff may recover in trespass to try title by proving a regular chain of conveyances from the sovereignty of the soil [Radcliffe v. Tidal Petroleum, Inc.. 521 §.W.3d 375,379 (Tex. App.—San Antonio 2017, pet. denied); Coker v. Geisendorff, 370 S.W.3d 8. 12 (Tex. App.—Texarkana 2012. no pet.); Kilpatrick v. McKenzie, 230 S.W.3d 207, 214 (Tex. App.—Houston [14th Dist.] 2006, no pet.); Oswald v. Staton, 421 S.W.2d 174, 175 (Tex. Civ. App.—Waco 1967. writ tef'dn.wre.)]. In order to prove title in this manner, the plaintiff must establish a land grant or patent from the state or sovereign showing that the title vested in the original grantee or patentee has passed by successive conveyances to the Plaintiff [Mills v. Snyder, 8 S.W.2d 790, 791 (Tex. Civ. App——San Antonio 1928, no writ); see, e.g., Coker v. Geisendorff, 370 S.W.3d 8, 13 (Tex. App.—Texarkana 2012, no pet.) (abstract of title showed regular and uninterrupted chain of title from sovereign to Plaintiff as to disputed tract)]. Therefore, if the Plaintiff fails to establish the original land grant from the sovereign, or any link in the chain of conveyances from that grant, the title claim must fail. Vv. GAPS IN CHAIN OF TITLE TO THE SOVEREIGN A Plaintiff is unable to show an unbroken chain of title back to the sovereign. B Plaintiff has claimed and has argued before the court that the miscellaneous copies of various documents filed herein by Cross-Defendant Bishop on July 14, 2020 constitute the Plaintiff's abstract of title as required by Rules 791— 793. Defendants have previously filed their motion objecting to the supposed “abstract of title” and hereby reserve their right to be heard on such motion and to amend such motion as may be appropriate. However, without reference to the informalities of the Plaintiff's filing, Defendants hereafter show the title claimed by the Plaintiff as proven — or not proven — by its own abstract of title: C. Plaintiffs have also claimed and argued before the court that certain document entitled "Historical Title Search" dated June 18, 2020, prepared by Courthouse Specialists and filed with the court on July 30, 2020, constitutes its expert's “abstract of title,” (Exhibit A, attached hereto). Again, without waiving any of Defendants' arguments made or to be made in any motion or objection to the abstract of title filed by the Plaintiff, plaintiff would show the following defects in its title actually reflected in Plaintiffs own "abstract." D Although the “abstract” mentions the substitute trustee's deed dated December 19, 2016 naming KM Bishop as the grantor and TH Trust as the grantee, (Exhibit B, attached hereto) neither the abstract nor that deed identifies a record chain of title on KM Bishop's authority to act as substitute trustee or grantor. It does state that the note and deed of trust were assigned to George M. Bishop by the president of Mulligan Medical Consultants, but it does not refer to any recorded document. In the absence of a recorded assignment, there exists a gap in Plaintiff's chain of title. E. Plaintiff's abstract identifies Coastal Sun Development, Inc. as the title holder by virtue of the deed dated November 6, 2000 (Exhibit A, Page 2). The abstract does not identify any conveyance from Coastal Sun Development, Inc. to George M. Bishop. Bishop has claimed before this court, in the pleadings, and in various affidavits filed in the real property records that he is the title holder of the property and that the alleged trustee's sale was conducted at his behest. There is simply no record evidence of title in Bishop. F, Plaintiff's chain of title to the sovereign is further interrupted, according to its own abstract of title, by the absence of any conveyance of record out of the C. B. Greenwood, who took title to the property on July 22, 1842 (Exhibit A, Page 4). The chain of title from Coastal Sun Development, Inc., mentioned in the prior paragraph, traces back to a deed from Placide Forstale to Alexander McCloy dated August 30, 1851. Plaintiff's abstract notes that there is no conveyance out of Greenwood nor to Forstale, thus creating a gap in the title of Coastal Sun Development, Inc. back to the sovereign. G In summary, plaintiff cannot trace its title back to the sovereign for the reason that its own abstract of title displays a gap in the chain of title between Bishop and Coastal Sun Development, Inc. and a second gap in the chain of title between Greenwood and Forestale. These gaps in title prove that Plaintiff does not have good title to the property, and therefore cannot satisfy the rules for maintaining a suit in trespass to try title, specifically that it has an interest which it claims in the property. H. A Plaintiff who has not interest at all in the land lacks standing to assert a trespass to try title action [Walston v. Lockhart, 62 S.W.3d 257, 259 (Tex. App.-Waco 2001, pet. denied) (sale of property in receivership termiated any interest of plaintiff in land and precluded standing to bring trepass to try title action)]. I Plaintiff's title therefore fails as a matter of law. VI. STATUTE OF LIMITATIONS NULLIFIES LIEN FORECLOSURE A Even if Plaintiff were able to show a chain of title to the sovereign through Bishop, the right to enforce the lien expired, before the alleged trustee’s deed was filed. Tex. Civ. Prac. & Rem. Code § 16.035 provides the statute of limitations for enforcement of a lien against real property; (a) A person must bring suit for the recovery of real property under a real property lien or the foreclosure of a real property lien not later than four years after the day the cause of action accrues. (b) A sale of real property under a power of sale in a mortgage or deed of trust that creates a real property lien must be made not later than four years after the day the cause of action accrues. (c) On the expiration of the four-year limitations period, the real property lien and a power of sale to enforce the real property lien become void. B. The following documents are recorded of record, and apparently are attempts by Bishop to legitimize the claim by the Plaintiff. However, they do two things, which only go to weaken Plaintiff's claim: 1) they failed to fill the gap in the chain of title from Plaintiff to Coastal Sun Development, Inc.; and 2) they provide evidence that the lien allegedly foreclosed upon and upon which plaintiff's trustee's deed relies, was void and unenforceable at the time of the sale. 1 Deed of trust filed on August 17, 2005 executed by Coastal Sun Development, Inc. for the benefit of Mulligan Medical Consultants, LLC to secure a promissory note in the original principal amount of $400,000 executed by Grand Parkway Equities, LLC. (Exhibit C, attached hereto). (This is the lien created by this deed of trust which the trustee's deed purports to foreclose.) Instrument entitled "Appointment of Substitute Trustee” recorded on October 16, 2007 stating that the Coastal note was in default and that ithad been accelerated.. The document, signed by Bishop, describes himself as the beneficiary of the deed of trust. However, no assignment of the note and lien from Mulligan to Bishop exists. Instrument entitled "Affidavit of Service by the Holder of the Note", recorded on October 16, 2007 and signed by Bishop, (Exhibit D, attached hereto). This instrument says that Bishop has instructed the Substitute Trustee to enforce the power of sale contained in the deed of trust. The instrument further states that a default occurred on the note on August 9, 2006, the original maturity date of the Coastal note. Instrument entitled "Affidavit of Noteholder" recorded on October 16, 2007, wherein Bishop swears that he is the owner and holder of the Coastal note secured by the deed of trust. Cc. None of the foregoing instruments are mentioned in the plaintiffs own “abstract of title”. There simply is no recorded conveyance of any interest in the property being granted to Bishop either as trustee or as owner. D Under applicable law, the statute of limitations on enforcement of a lien against real estate runs on the fourth anniversary of the date of the maturity of the debt. In this case, limitations ran on August 9, 2010, based upon the sworn earlier affidavit of Bishop. Nevertheless, plaintiff's title relies on a trustee's deed not filed until December 19, 2016, more than six years following the running of the statute of limitations. E. The cases in which the courts have recognized the expiration of a lender’s lien rights are legion. Following is a sampling of the cases where the courts have upheld the above statute of limitations. a. Swedlund v. Banner, 970 S.W.2d 107. 1998 Tex. App. LEXIS 2879 (Tex. App. Corpus Christi May 14, 1998, no pet.). b. Tex. Civ. Prac, & Rem. Code Ann. § 16.035(a) states that a person must bring suit for the recovery of real property under a real property lien or the foreclosure of a real property lien not later than four years after the day the cause of action accrues. Aguero v. Ramirez, 70 S.W.3d 372, 47 U.C.C. Rep. Serv. 2d (CBC) 1085. 2002 Tex. App. LEXIS 1518 (Tex. App. Corpus Christi Feb. 28, 2002, no pet.). c. If limitations on enforcement of a real property lien has expired, the lien is invalidated by operation of law [Tex. Civ. Prac. & Rem. Code § 16.035(d)—teal property lien and power of sale become void on expiration of limitations period]. d. A sale of real property under a power of sale in a mortgage or deed of trust must be made not later than four years after the day the cause of action accrues [Tex. Civ. Prac. & Rem. Code § 16.035(b)]. e. Summary judgment was proper for the purchaser of property against an assignee of a deed of trust because the record contained no evidence of a legal impediment that prevented the assignee from asserting and preserving its non- judicial foreclosure remedy within the four-year statute of limitations so as to warrant a tolling of limitations during the pendency of the purchaser’s first quiet title action. U.S. ROF II Legal Title Trust 2015-I v. Morlock, L.L.C., No. 14-18- 00332-CV, 2020 Tex. App. LEXIS 304 (Tex. App. Houston 14th Dist. J Unde: Tex. Civ. Prac. & Rem. Code Ann. § 16.035(b), f. A sale of real property under a power of sale in a mortgage or deed of trust that creates a real property lien must be made not later than four years after the day the cause of action accrues; when the four-year period expires, the real property lien and power of sale to enforce the lien become void, pursuant to Tex. Civ. Prac, & Rem. Code Ann. § 16.035(d). Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 2001 Tex. LEXIS 23 (Tex. 2001). g. Bank and its successors failed to foreclose on the Property within the permitted four-year period. Under Texas law, the lien on debtor's property securing the Note was void. In re Williams, No. 16-33276, 2017 Bankr. LEXIS 2172 (Bankr. $.D. Tex. Aug. 3, 2017). h. Court erred in granting declaratory relief because the four-year limitations periods expired before suit was filed, and the real-property lien and the power of sale to enforce the lien became unenforceable before suit was filed. Powell v. CIT Bank, N.A., No. 14-15-00949-CV, 2017 Tex. App. LEXIS 5259 (Tex. App. Houston 14th Dist. June 8, 2017). i. The bank's real-property lien and power of sale to enforce the lien became unenforceable. Powell v. CIT Bank, N.A., No. 14-15-00949-CV, 2016 Tex. App. LEXIS 13284 (Tex. App. Houston 14th Dist. Dec. 15, 2016). j. Homeowners' summary judgment evidence conclusively established that the lender's judicial foreclosure suit was barred by limitations; the trial court erred by granting the lender's summary judgment motion and denying the homeowners’ summary judgment motion. Landers v. Nationstar Mortg.. LLC, 461 §.W.3d 923 2015 Tex. App. LEXIS 3419 (Tex. App. Tyler Apr. 8. 2015, no pet.). k. The lien expired in January 2012, and its August 2012 foreclosure action was barred by the statute of limitations. Callan v. Deutsche Bank Trust Co. Ams., 11 10 E. Supp. 3d 761, 2014 U.S. Dist. LEXIS 41567 (S.D. Tex. 2014), amended, 93 F. Supp. 3d 725, 2015 U.S. Dist. LEXIS 35626 (S.D. Tex. 2015). 1. The limitations period began running when the prior holder of the note accelerated the note; thus, the assignee’s attempted foreclosure more than four years later was beyond the statute of limitations period under Tex. Civ. Prac. & Rem. Code Ann. § 16.035(e). Burney v. Citigroup Global Mkts. Realty Corp.. 244 S.W.3d 900, 2008 Tex. App. LEXIS 973 (Tex. App. Dallas Feb. 8, 2008, no pet.). m. In a former property owner’s suit seeking excess proceeds from a tax foreclosure sale, by failing to bring suit on its real property lien within four years of the accrual of its cause of action pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 16.035(d), the creditor lost all remedies for the enforcement of its lien Woodside Assur., Inc. v. N.K. Res., 175 S.W.3d 421, 2005 Tex. App. LEXIS 5130 (Tex. App. Houston Ist Dist. June 30, 2005, no pet.). VII. JUSTICIABLE INTEREST AND STANDING AS JURISDICTIONAL ISSUES A A person bringing an action must show that the person has a justiciable interest in the subject matter of the litigation.' In other words, for a person to maintain an action, it is necessary that the person have standing to prosecute the claim that is the subject matter of the action? ‘Heckman v. Williamson County, 369 $.W.3d 137, 147-148 (Tex. 2012); Lorentz v. Dunn, 171 S.W.3d 854, 856 (Tex. 2005) (claimant must have “justiciable interest”); Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005) (same); Unifund CCR Partners v. Watson, 337 §.W.3d 922, 925 (Tex. App.—Amarillo 2011, no pet.) (issue of standing focuses on “justiciable interest”). . °Neeley v. W. Orange Cove Consol. Indep. Sch, Dist., 176 $.W.3d 746, 772-776 (Tex. 2005). 11 B. Under the general rule of standing, a person has standing to sue when he or she is personally aggrieved as a result of the invasion of the person’s justiciable interest? Borrowing from federal jurisprudence, many Texas courts state that whether a person is personally aggrieved depends on whether the person has suffered an “injury in fact” that is “concrete” and particularized.* Cc The assertion of private rights of action requires the claimant to have sustained a legal injury as a result of a breach of a legal duty, as distinguished from an injury in fact. D Standing is implicit in the open courts provision of the Texas Constitution, which contemplates access to the courts only for litigants who have been threatened with or have sustained an injury.° E. The Texas Supreme Court has held that because standing is a component of subject matter jurisdiction it cannot be waived and may be raised for the first time on appeal.’ This holding 3See, e.g., Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 249 (Tex. App—Dallas 2005, no pet.); see generally Dorsaneo, The Enigma of Standing Doctrine in Texas Courts, 28 Rev. Litig. 35 (2008). 4See Polaris Industries v. McDonald, 119 $.W.3d 331, 338-339 (Tex. App.—Tyler 2003,.no pet.). 5See Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex. 1976); see also Am. Nat. Ins. Co. v. Hicks, 35 S.W.2d 128,131 (Tex. Comm. App. 1931, jdgmt. adopted) (“the right to maintain an action depends upon the existence of what is termed a cause of action, which involves the combination of a right on the part of the Plaintiff and a violation of such right by Defendants”); Exxon Corp. v. Pluff, 94 S.W.3d 22, 26 (Tex. App—Tyler 2002, pet. denied) (without breach of legal right belonging to Plaintiff, Plaintiff has no standing; in property damage suit against oil company, because injury had occurred before Plaintiff bought land and because deed contained no assignment of any cause of action, Plaintiff lacked standing); A// Seasons Window & Door Mfg., Inc. v. Red Dot Corp., 181 S.W.3d 490, 496-497 (Tex. App.-Texarkana 2005, no pet.) (the company that was not party to contact did not have standing to sue for usury). ‘Fin. Comm'n of Tex. v. Norwood, 418 S.W.3d 566, 580 (Tex. 2013); South Texas Water Authority v. Lomas, 223 S.W.3d 304, 307 (Tex. 2007); Texas Ass’n of Bus. v. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993); see Tex. Const. art. 1, § 13 (open courts provision). "Texas Ass'n of Business v. Air Control Ba., 852 S.W.2d 440, 445-446 (Tex. 1993). 12 expressly overruled previous case law in Texas, which held that lack of standing must be asserted by the opposing party in the trial court in order to preserve error and avoid waiving the standing issue. WHEREFORE, PREMISES CONSIDERED, the Plaintiffs having not pleaded any matters in which they have a justiciable interest, Defendants pray this Honorable Court will dismiss the Plaintiff's Petition, and for such other and further relief that may be awarded at law or in equity. Respectfully submitted, HOLOWAY JONES LAW FIRM PLLC By:/s/ Russell C. Jones Russell C. Jones Texas Bar No. 10954300 Email: rjones@jonesattorneys.com 407 Julie Rivers Drive Sugar Land, TX 77478 Tel. (281) 242-8100 Fax. (281) 242-7474 Attorney for Defendants Robert G. Pate and Judy K. Pate 13 VERIFICATION BEFORE ME, the undersigned authority, personally appeared Russell C. Jones, who being duly sworn, deposed as follows: "My name is Russell C. Jones. I am at least 18 years of age and of sound mind. I am personally acquainted with the facts alleged in Defendants' Motion to Dismiss for Lack of Jurisdiction. [hereby swear that the factual statements in support of Defendants' Motion to Dismiss for Lack of Jurisdiction are true and CO to Russell C. Jones SUBSCRIBED AND SWORN TO BEFORE ME on December , 2021, by Russell C. Jones. Notary Public, State of Texas ws wiz, BRENDA K FREY Notary Public, State of Texas; Comm. Expires 05-23- 2022 Tanti Notary 1D 459838-6 14 CERTIFICATE OF SERVICE Icertify that on December zZ, 2021, a true and correct copy of the foregoing Defendants’ Motion to Dismiss for Lack of Jurisdiction was served on Jeffrey R. Vaughan and George M. Bishop electronically through the electronic filing manager. /s/ Russell C. Jones Russell C. Jones 15s NO. 17-DCV-243655 DAVID H. HAMILTON, AS TRUSTEE§ IN THE DISTRICT COURT OF T. H. TRUST § Plaintiff and Counter-Defendant, § § Vv. § ROBERT G. PATE AND JUDY K. PATE§ 434TH JUDICIAL DISTRICT Defendants and Counter-Plaintiffs § § Vv § GEORGE M. BISHOP, K. M. BISHOP§ AND DAVID H. HAMILTON, § INDIVIDUALLY , Cross-Defendants § OF FORT BEND COUNTY, TEXAS TABLE OF EXHIBITS Exhibit Number Date of Document Title of Document A June 20, 2020 Historical Title Search B December 19, 2016 Substitute Trustee’s Deed August 9, 2005 Deed of Trust October 4, 2007 Affidavit of Service by Holder of the Note Filed 7/30/2020 4:06 PM Beverley McGrew Walker District Clerk Fort Bend County, Texas Donald Evans COURTHOUSE SPECIALISTS 9800 Northwest Freeway, Suite 400 Houston, TX 77092 713-683-4027 HISTORICAL TITLE SEARCH June 18, 2020 No. 2034203A. Effective Date: June 12, 2020 Legal Description: Being that certain 4.7695 acres of land in the Knight and White League, A-46, Fort Bend County, Texas. As requested, we have searched the records of Fort Bend County, Texas, pertaining to the property referenced above from September 27, 1838 through June 12, 2020 and have determined the following: DATE: March 10, 2020 INSTRUMENT: Correction Instrument GRANTOR: JAB Development Corporation GRANTEE: Robert G. Pate and Judy K. Pate COMMENTS: REFERENCE: Fort Bend County Clerk’s File Number 2020029045 DATE: December 19, 2016 INSTRUMENT Substitute Trustee’s Deed GRANTOR: K.M. Bishop GRANTEE: T.H. Trust COMMENTS: REFERENCE: Fort Bend County Clerk’s File Number 2017106823 DATE: September 19, 2017 INSTRUMENT: Quitclaim Deed GRANTOR: United States of America GRANTEE: Robert G. Pate and Judy K. Pate COMMENTS: REFERENCE: Fort Bend County Clerk’s File Number 2017103169 EXHIBIT A DATE: November 6, 2000 INSTRUMENT: Special Warranty Deed with Vendor’s Lien GRANTOR: DMM Holdings, L.P., Hazel Dutton Trust, Robert Owen Milby, Jack Neill Milby and Barbara Maresh Mitchell GRANTEE: Coastal Sun Development COMMENTS: REFERENCE: Fort Bend County Clerk’s File Number 2000096355 DATE: May 31, 1996 INSTRUMENT: Special Warranty Deed GRANTOR: Robert O. Milby, Trustee of the Hazel Dutton Trust GRANTEE: DMM Holdings, L.P. COMMENTS: REFERENCE: Fort Bend County Clerk’s File Number 9635881 DATE: May 31, 1996 INSTRUMENT: Special Warranty Deed GRANTOR: Hazel Dutton GRANTEE: DMM Holdings, L.P. and Robert O. Milby, Trustee of the Hazel Dutton Trust COMMENTS: REFERENCE: Fort Bend County Clerk’s File Number 9635880 DATE: February 10, 1978 INSTRUMENT: Partition Deed GRANTOR: Bert F. Winston and Marjorie Winston Bailey GRANTEE: Hazel Dutton COMMENTS: REFERENCE: Volume 762, Page 269 of the Fort Bend County Deed Records DATE: January 3, 1938 INSTRUMENT: Deed GRANTOR: J. R. Farmer and Berta Farmer GRANTEE: Bert F. Winston COMMENTS: REFERENCE: Volume 172, Page 168 of the Fort Bend County Deed Records DATE: November 26, 1924 INSTRUMENT: Deed GRANTOR: Second National Bank of Houston, f/k/a The Lumbermans National Bank GRANTEE: J. R. Farmer COMMENTS: REFERENCE: Volume 108, Page 200 of the Fort Bend County Deed Records DATE: December 7, 1920 INSTRUMENT. Trustee’s Deed GRANTOR: H. A. Arnold, Jr., Trustee GRANTEE: The Lumbermans National Bank COMMENTS: REFERENCE: Volume 88, Page 517 of the Fort Bend County Deed Records DATE: October 28, 1914 INSTRUMENT Deed GRANTOR: Ben S. Campbell and Lucile F. Campbell GRANTEE: John H. Blair and Velma Blair COMMENTS: REFERENCE: Volume 69, Page 263 of the Fort Bend County Deed Records DATE: December 14, 1912 INSTRUMENT Warranty Deed GRANTOR: Cane & Rice Belt Irrigation Company GRANTEE: Ben S. Campbell COMMENTS: REFERENCE: Volume 65, Page 116 of the Fort Bend County Deed Records DATE: June 24, 1907 INSTRUMENT Deed GRANTOR: J. F. McCloy and Alice McCloy GRANTEE: Cane & Rice Belt Irrigation Company COMMENTS: REFERENCE: Volume 37, Page 633 of the Fort Bend County Deed Records DATE: June 17, 1907 INSTRUMENT. Deed GRANTOR: Mattie Dillard GRANTEE: J. F. McCloy COMMENTS: REFERENCE: Volume 37, Page 613 of the Fort Bend County Deed Records DATE: March 8, 1895 INSTRUMENT. Deed GRANTOR: John McCloy, et al GRANTEE: Mattie Dillard COMMENTS: REFERENCE: Volume 3, Page 233 of the Fort Bend County Deed Records DATE: April 22, 1891 INSTRUMENT: Deed GRANTOR: Priscilla McCloy GRANTEE: John McCloy, et al COMMENTS: REFERENCE: Volume X, Page 83 of the Fort Bend County Deed Records DATE: January 17, 1876 INSTRUMENT Deed GRANTOR: John McCloy GRANTEE: Priscilla McCloy COMMENTS: REFERENCE: Volume K, Page 575 of the Fort Bend County Deed Records DATE: December 21, 1865 INSTRUMENT Deed GRANTOR: Priscilla McCloy GRANTEE: John McCloy COMMENTS: REFERENCE: Volume G, Page 743 of the Fort Bend County Deed Records DATE: February 3, 1852 INSTRUMENT Deed GRANTOR: Alexander McCloy GRANTEE: Priscilla McCloy COMMENTS: REFERENCE: Volume B, Page 717 of the Fort Bend County Deed Records DATE: August 30, 1851 INSTRUMENT. Deed GRANTOR: Placide Forstale GRANTEE: Alexander McCloy COMMENTS: No conveyance is found filed of record into Placide Forstale or out of C. B. Greenwood for the subject tract. REFERENCE: Volume B, Page 655 of the Fort Bend County Deed Records DATE: July 22, 1842 INSTRUMENT. Deed GRANTOR: James Knight GRANTEE: C. B. Greenwood COMMENTS: REFERENCE: Volume A, Page 352 of the Fort Bend County Deed Records DATE: March 7, 1842 INSTRUMENT: Deed GRANTOR: James B. Miller and W. N. Kirk, Trustees GRANTEE: James Knight COMMENTS: REFERENCE: Volume A, Page 328 of the Fort Bend County Deed Records DATE: September 27, 1838 INSTRUMENT: Deed GRANTOR: Government of Mexico GRANTEE: James Knight and Walter White COMMENT: REFERENCE: Volume A, Page 103 of the Fort Bend County Deed Records Courthouse Specialists disclaims any warranties, expressed or implied concerning this information. Courthouse Specialists liability for errors or omissions in this information shall be limited to the amount paid for this report. By accepting this form, the party requesting the information agrees that the disclaimer of warranties and liability limitation contained in this paragraph is a part of its contract with Courthouse Specialists and shall cover all actions whether arising hereunder by statute, in contract or in tort. Very truly yours, Courthouse Specialists A Ce a Chris Layne Abstractor LIMITATION OF LIABILITY: THE LIABILITY OF EITHER PARTY WITH RESPECT TO THIS INFORMATION OR ANY ACT IN CONNECTION HEREWITH WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE PRICE OF THE SERVICES OR PRODUCTS SOLD HEREUNDER OR THE PRICE OF THAT PORTION OF SUCH SERVICES OR PRODUCTS ON WHICH LIABILITY IS ASSERTED. COURTHOUSE SPECIALISTS (SELLER) MAKES NO WARRANTY WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, AS TO THE QUALITY, FITNESS, SUITABILITY, CONFORMITY, OR MERCHANTABILITY OF THE SERVICES OR PRODUCTS SOLD. IF THE TRANSACTION IN QUESTION IS ARISING FROM OR RELATED TO AN AUCTION OR FORECLOSURE, INCLUDING WITHOUT LIMITATION A TAX AUCTION, HOA AUCTION OR SIMILAR AUCTION PROCEEDING, THE BUYER TAKES THE PROPERTY SUBJECT TO ALL LIENS, ENCUMBRANCES AND OTHER MATTERS OF RECORD WHETHER OR NOT REFLECTED ON THE CERTIFICATE. * a. On nin 6 PGS 2017106823 “ Cisne TRUSTEE’S DEED eae F TEXAS KNOW ALL MEN BY THESE PRESENTS INTY OF FORT BEND K.M. Bishop of Alpine, Texas was appointed Substitute Trustee int tothe Deed of Trust of August 9, 2005 in which Grand Parkway Equities, res 000.00 from Mulligan Medical Consultants, L.L.C. on August ° 5.7) ee amount was secured by the same Deed of Trust and WHEREAS t fault in the payment of the note secured by the Deed of Trust, the propertyein of 4.7695 acres of real property as further Gen described th EXéil ‘Avatfached hereto and incorporated herein for all purposes was properly,ly ted-by me for foreclosure on October 9, 2007. The foreclosure took place onthe fig Tuess sqay of November, 2007 which was November 6, 2007. Prior to the forecto: ea oeNe Trust was filed in the Real Property Records of Fort Bend County; Sunder Clerk’s File Number 2005100438 and recorded in the Deed of Trust Récordis.of Fort, Bend County, Texas. The Deed of Trust secured payment of inde6 tiedness 0 redt0. Mulligan Medical Consultants, L.L.C. Mulligan Medical Consulta ong The note and Deed of ep reaeetoste George M. Bishop by the president of eLC-on August 4, 2006. An Affidavit Of Service By the Holder of the Note was fi ee a8 ar in'the Official Public Records of Fort Bend County on October 16, 2007.4 Bishop was appointed Substitute rrigteetyake which instrument was filed and recortied in th sya Number 20071287872. K.M. M. Bishop on October 4, 2007 fficial Public Records of Fort Bend County on October5, 2007 in Clerk's ife Numb r 2007124343, At the foreclosure sale, the 4.7695 acres oflarid int Knight & White League, A- rae 46 in Fort Bend County, Texas as more parti ad éscribied in EXHIBIT A “attached hereto and incorporated herein for all eapur wes sold to the highest bidder, T.H. Trust, a Texas trust. mt Pursuant to the powers vested in me by the terms. of Sesh argrust of August 9, 2005, | hereby grant, devise and convey the prope: escr}ib nein and In ’ EXHIBIT A to T.H. Trust, a Texas trust. itgess my hand and signature on this the 14 date on Desam Substitute Trustee <> 1020 Loop Drive (J oO Ce ?A : EXHIBIT B eg NS {- Ne aN, “ (Cy \. s “Alpine, Texas 79830-3230 - OF TEXAS 4 0 TY OF BREWSTER RE ME, the undersigned authority appeared a person known to me as K.M. O me on his oath that the above Substitute Trustee’s Deed and his free act and deed and that it was his intention to transfer tl described property to Coastal Financial Consultants, Inc Signi Sr eaotome ind sworn to ERORE ME on this the 19 day of December, 2016 to . hich witness,S povha ifand seal office. Notary Public State of Texas t the WA {- oO o™, BE D2 UE; 123as 40 “D> February Sr a “) LZ Se ( ( a AA, OA Ce oN, oa, “Ce “oO oN v ao ) Pe 2 - -—. Ne 2017106823 Page 3 of 6 a ’, (Coe Sey U. 2 “f NY 2. ED ES OY EXuHIpitT “A” CoN YON “Ge (Lead dachiniong 4.7695 acres QOCfo OO ee aN, vo) \< EZ et A, ~~ “> “ oN, Ve " i, 2017106823 Page 4 of 6 ON CC Oe LEGAL DESCRIPTION 4.7695 ACRES OF LAND KNIGHT & WHITE LEAGUE, A-46 > FORT BEND COUNTY, TEXAS cas) a November 20, 2001 ° o Being’ Ab: Gah orbs:58 square feet) of land located in the Knight & White League, & GN. Railroad Company Survey, Abstract Number 353, and the William, a 599, Fort Bend County, Texas, being the same called 4.7695 ane wanesapd de: CT TWO” by deed to Coastal Sun Development, Inc. by deed recorded und fer AoMd County Clerk’s File Number 2000096355, and being more particularly see ed bfmetesed bounds as follows: COMMENCING ‘ (5Bin iron{fgad with cap marked "Carter & Burgess, Inc." (herein after referred to asa Int inn fogs cap) on the south line of a called 16.4750 acre tract described in a deed to Sun, (Coastal lopment, Inc. on recorded under Fort Bend County Clerk's File Number L99sbaegsirant as being the northwest comer of the called 473.176 acre tract described as "Tract 1” i d id Souslr Plantation, Inc. recorded under Fort Bend County Clerk's File Number 9 BA THENCE, South 02 degrees 39 Vee,4 seconds eae with the west line of the Old South ge Plantation called 473.176 acre tract, a distance of25915spn t to the northeast corner of a called 104.224 acre tract of land describedin a depd'to Maiforj ton Bailey on recorded under Volume 762 Page 275 of the Deed Reco. ee me and to a set 5/8 inch iron rod ‘with cap; THENCE, South ate 87 degrees 20 minutes 56 secont West,with the northerly line of said ee Marjorie Winston Bailey tract a distance of 2,115.1! feetto rly line of a drainage easement recorded under Volume 2246 Page 1826 of the of Fort Bend County and a set 5/8 inch iron rod with cap and the POINT OF BEG: GC erein described tract: =— 2 1 THENCE, South 87 degrees 20 minutes 56 seconds West, iti the northerly line Sti of said Marjorie Winston Bailey tract a distance of 857.34 fe ous oe ne of Skinner Lane (60 feet wide occupied) and a set PK nail; THENCE, North 01 degree $8 minutes 27 seconds West, with aK saly Skinner Lane a distance of 346.20 feet to a 5/8 inch iron rod with cap set at et mer of said drainage easement; \(Oy ve oP 2 Me a Page | of 2 Pages <5 HAOID1Z2Z\a-D IOC RB\Tract 2 2001 dos CarterSyfgess 2017106823 Page 5 of 6 YO “of, ( 1953 ber 20, 2001 Ate Cres if 2 Pages > . ‘ x“ We North 87 degrees 11 minutes 46 seconds East, with the southerly Jine of said ent a distance of 257.23 feet to a set 5/8 inch iron rod with cap; uth, grees 14 minutes 06 seconds East, continuing with the southerly line . tom age easemienha distance of 190.67 feet to a set 5/8 inch iron rod with cap and fbi