Preview
Electronically Filed
12/11/2023 11:16 AM
Hidalgo County District Clerks
Reviewed By: Nilda Palacios
CAUSE № C-0386-23-I
ALEJANDRO VILLEDA § IN THE DISTRICT COURT
PLAINTIFF, §
§
VS § 398TH JUDICIAL DISTRICT
§
PFS TAX LIEN TRUST §
SUCCESSOR IN INTEREST OF §
PROPEL FINANCIAL SERVICES, LLC, §
DEFENDANT(s). § HIDALGO COUNTY, TEXAS
PLAINTIFF’S RESPONSE TO PLAINTIFF INTERVENOR’S
MOTION FOR SUMMARY JUDGMENT
COMES NOW, Plaintiff, Alejandro Villeda, files this his response to Plaintiff Intervenor’s
Motion for Summary Judgment and in support thereof show as follows:
I.
FACTUAL BACKGROUND
1. This lawsuit stems from the wrongful seizure and sale of real property by the Defendant
PFS Trust, Propel Financing Services, LLC, to HK, REO, and LLC. The Plaintiff herein avers that the
factual statements are correct in as far as the real property described herein is concerned but Plaintiff is
not privy to most of the facts as outlined by the Intervenor Plaintiff.
2. Plaintiff entered into an agreement with Defendant Propel Financial Services, LLC, to
make regular monthly payments on the subject property of this lawsuit.
3. Further, Plaintiff’s agreement was materialized by the parties. It is further undisputed that
Plaintiff, Alejandro Villeda in fact make all required payments in the amount of $183,000.00 in full
satisfaction of the purchase price. (Receipts marked as Exhibit B have previously been submitted with
Plaintiff’s initial pleadings.)
Plaintiff’s Response to Plaintiff Intervenor’s Page | 1
Motion For Summary Judgment
Electronically Filed
12/11/2023 11:16 AM
Hidalgo County District Clerks
Reviewed By: Nilda Palacios
4. For Defendant Propel Financial Services, to wash their hands clean of the agreement
between the Plaintiff and those amounts to a travesty of justice that the Court cannot ignore.
5. This in itself substantiates Plaintiff’s argument that a breach of contract of contract has
occurred, in addition to other causes of action, including but not limited to fraud, statutory fraud, alter ego,
fraud in real estate, trespass to try title, unjust enrichment and possibly a civil conspiracy to defraud.
INTERVENOR AND NOTICE
6. The fact that Intervenor Plaintiff HK, REO, LLC fails to address the entire facts of this
case should make the Court wary because, assuming that there was a “tax sale” as stated by Intervenor
Plaintiff, how we arrived at this sale should be of concern to the Court because we do not know whether
Intervenor was aware of the existence of a contract between Plaintiff and Propel Financial Services, LLC
and further if TLF REO, LLC, was aware of the same.
7. The question is whether all the subsequent parties after Propel Financial Services were
aware of the true facts of this case. If they did, Plaintiff may, in addition to the causes of action states
above, may have a cause of action for civil conspiracy involving all of the parties involved in this case,
from Propel Financial Services, LLP to HK REO, LLC, since it is easy to hide behind abbreviations and
LLCs. That is one of the reasons for the formation of LLCs, no one is aware of who is who.
RIGHT OF REMPTION AND THE DISCOVERY RULE
8. Texas Property Code Sec. 34/21 provides a right of redemption to owners of real property
used as a homestead. The period of redemption is 24 months or as stated in the property code the owner
having a right of redemption may redeem the property on or before the second anniversary of the date of
recording of the deed filed with the county deed records.
Plaintiff’s Response to Plaintiff Intervenor’s Page | 2
Motion For Summary Judgment
Electronically Filed
12/11/2023 11:16 AM
Hidalgo County District Clerks
Reviewed By: Nilda Palacios
9. The issue arises of what if the previous owner, the Plaintiff, was not aware of the deadline
or statute of limitations in which to pay taxes paid by the subsequent purchaser, along with penalty and
interest.
10. On January 13, 2023, the Texas Supreme Court issued its opinion in Marcus &
Millichap Real Estate Investment Services of Nevada, Inc. v. Triex Texas Holdings, LLC , __ S.W.3d
__, 2023 WL __ (Tex. Jan. 13, 2023) (per curiam) (“Triex”). The opinion addresses the discovery rule
and fraudulent concealment, being legal principles used by litigants to extend the statute of limitations
for what would be a stale claim. Importantly, the Triex opinion adds color to the Texas Supreme
Court’s opinion of Berry v. Berry, 646 S.W.3d 516 (Tex. 2022) (“Berry”). In Berry, the Court brought
Texas law back on the subject of limitations and the discovery rule.
11. Statutes of limitations exist to compel the assertion of claims within a reasonable period.
“‘It is based on the theory that the uncertainty and insecurity caused by unsettled claims hinder the
flow of commerce.’” Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996)
(quoting Safeway Stores, Inc. v. Certainteed Corp., 710 S.W.2d 544, 545 (Tex.1986)). Defendants bear
the initial burden of pleading, proving, and securing findings on the affirmative defense of statute of
limitations. To avoid its application, a party must then both plead and prove the discovery rule or
fraudulent concealment. If a party fails to plead and prove the date on which accrual occurred by way
of the discovery rule, the “legal injury” determines when a cause of action accrues. Limitations begin
to run upon accrual of the cause of action. In the context of a breach of contract and breach of a
fiduciary duty, the legal injury generally accrues on the date of the alleged breach. Under Texas law,
claims for breach of contract, fraud, and breach of fiduciary duty are subject to four-year statutes of
limitation.
Plaintiff’s Response to Plaintiff Intervenor’s Page | 3
Motion For Summary Judgment
Electronically Filed
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Hidalgo County District Clerks
Reviewed By: Nilda Palacios
12. The statute of limitations for breach of fiduciary duty is four years. Generally, a claim
accrues when the defendant’s wrongful conduct causes the claimant to suffer a legal injury. A legal
injury occurs—and the statute of limitations begins to run—“when facts come into existence that
authorize a party to seek a judicial remedy.” A cause of action accrues when the injury occurs, “even
if the fact of injury is not discovered until later, and even if all resulting damages have not yet
occurred. Under the discovery rule the statute of limitations does not begin to run until the
claimant knew or should have known of facts that the exercise of reasonable diligence would
have led to the discovery of the wrongful act. The discovery rule exception defers accrual of a
cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the
facts giving rise to the cause of action. The discovery rule is a narrow exception that is only applied
in “exceptional cases.” Applications of the rule should be few and narrowly drawn.
13. There has been a recent trend in Texas litigation of borrowers asserting claims or
counterclaims against their lenders for breach of fiduciary duty. The first thing that a plaintiff has to
establish in such a claim is that the lender actually owed it a fiduciary duty. While formal fiduciary
obligations are created by law, an informal fiduciary duty may arise from a moral, social, domestic or
purely personal relationship of trust and confidence, generally called a confidential relationship. This
type of relationship is not imposed lightly by the courts and requires there to be a special relationship of
trust and confidence between the parties beyond just a history of prior arms-length transactions) that
existed prior to, and separate from, the loan or agreement giving rise to the plaintiff’s lawsuit. In August
2017, a Dallas plaintiff prevailed at trial on a breach of fiduciary duty claim against Plains Capital Bank
after arguing that she had a long-standing business and personal relationship of trust and confidence
with her banker. The Dallas Court of Appeals reversed.
Plaintiff’s Response to Plaintiff Intervenor’s Page | 4
Motion For Summary Judgment
Electronically Filed
12/11/2023 11:16 AM
Hidalgo County District Clerks
Reviewed By: Nilda Palacios
Several Texas courts have also recognized that a special or informal fiduciary relationship could be
created where a lender exercises “excessive lender control over, or influence in, the borrower's business
activities.”6 This concept has its roots in the 1984 case of State National Bank of El Paso v. Farah
Manufacturing Company, Inc.
14. Here, it is Plaintiff’s contention that a fiduciary duty existed between Propel Financial
Services LLP and the Plaintiff because of the special relationship that the parties had. Accordingly,
many courts and scholars have concluded that the existence of a "special relationship" between
borrowers and lenders is a condition precedent to any establishment of a fiduciary relation. The question
is not whether there is generally a fiduciary relation between borrowers and lenders, but rather, whether
a fiduciary duty has arisen with respect to a particular aspect of their relationship. If such a duty has
arisen, then the next question is whether there is a causal link between the borrower's damages and the
lender's breach of its corresponding fiduciary duty. It is Plaintiff’s contention that it has and the
Defendants had a duty to inform Plaintiff of the date of filing the deed filed after the sheriff’s sale. Thus,
if the court finds that a fiduciary duty existed, as four year statute of limitations existed and Plaintiff is
entitled to his day in court.
II
SUMMARY JUDGMENT STANDARD
15. The non-movant must expressly present to the trial court, by written answer or response,
any issues defeating the movant's entitlement to summary judgment. See McConnell0, 858 S.W.2d at 343
(citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979)); Dubose v. Worker's
Medical, P.A., 117 S.W.3d at 916, 920 (Tex. App.—Houston [14th Dist.] 2003, no pet.); see TEX. R.
CIV. P. 166a(c). Issues not expressly presented to the trial court by written motion, answer or other
response shall not be considered on appeal as grounds for reversal." TEX R. C IV. P. 166a(c); see
Plaintiff’s Response to Plaintiff Intervenor’s Page | 5
Motion For Summary Judgment
Electronically Filed
12/11/2023 11:16 AM
Hidalgo County District Clerks
Reviewed By: Nilda Palacios
McConnell, 858 S.W.2d at 343; Dubose, 117 S.W.3d at 920; Querner Truck Lines, Inc. v. Alta Verde
Indus., Inc., 747 S.W.2d 464, 469 (Tex. App.—San Antonio 1988, no writ) (finding non-movant waived
argument on appeal that it was entitled to additional offset against movant's damages than offset allowed
by trial court because non-movant did not raise issue of additional offset in its summary judgment
response). To "expressly" present issues pursuant to Rule 166a(c), "[t]he written answer or response to
the motion must fairly apprise the movant and the court of the issues the non-movant contends should
defeat the motion." Clear Creek, 589 S.W.2d at 678; see Engel v. Pettit, 713 S.W.2d 770, 771-72 (Tex.
App.—Houston [14th Dist.] 1986, no pet.). The term "issues" in Rule 166a(c) means "legal theories (i.e.,
grounds of recovery and defenses) and factual theories." Atl. Richfield Co. v. Exxon Corp., 663 S.W.2d
858, 863 (Tex. App.—Houston [14th Dist.] 1983), rev'd on other grounds, 678 S.W.2d 944 (Tex. 1984);
see also Lee v. Rogers Agency, No. 06-15-00037-CV, 2017 Tex. App. LEXIS 1069 (Tex. App.—
Texarkana February 8, 2017, pet. filed). Issues are not expressly presented.
16. The party seeking summary judgment bears the initial burden of informing the court of
the basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate
the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317
323,91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Martinez v. Schlumberger, Ltd., 338
F.3d 407, 411 (5th Cir. 2003); Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877
(5th Cir. 2002); Colson v. Grohman, 174 F.3d 498, 506 (5th Cir. 1999); Marshall v. East Carroll
Parish Hosp. Serv. Dist., 134 F.3d 319, 321 (5th Cir. 1998).
III
ARGUMENTS AND AUTHORITIES
Plaintiff’s Response to Plaintiff Intervenor’s Page | 6
Motion For Summary Judgment
Electronically Filed
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Hidalgo County District Clerks
Reviewed By: Nilda Palacios
17. "A fact is 'material' if it 'might affect the outcome of the suit under governing law.'" Bazan
v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001) (emphasis in original) (quoting Anderson,
477 U.S. at 248); see Harken Exploration Co. v. Sphere Drake Ins. PLC, 261 F.3d 466, 471 (5th
Cir. 2001); Merritt-Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir. 1999); Burgos
v. Southwestern Bell Tel. Co., 20 F.3d 633, 635 (5th Cir. 1994). "An issue is 'genuine' if it is real
and substantial, as opposed to merely formal, pretended, or a sham." Bazan, 246 F.3d at 489
(emphasis in original). Thus, a genuine issue of material fact exists "if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S.
at 248; accord Harken Exploration Co., 261 F.3d at 471; Merritt-Campbell, Inc., 164 F.3d at 961.
The court must review the record 'taken as a whole.'" Reeves v. Sanderson Plumbing Prods. Inc.,
530 U.S. 133, 150, 147 L. Ed. 2d 105, 120 S. Ct. 2097 (2000) (quoting Matsushita Elec.
Indus. Co., 475 U.S. at 587).
18. All the evidence must be viewed "in the light most favorable to the non-moving party
without weighing the evidence, assessing its probative value, or resolving any factual
disputes." Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir. 1996); see
Reeves, 530 U.S. at 150; Brown v. City of Houston, 337 F.3d 539, 540 (5th Cir. 2003);
Harken Exploration Co., 261 F.3d at 471; Daniels v. City of Arlington, 246 F.3d 500, 502 (5th
Cir.), cert. denied, 534 U.S. 951, 151 L. Ed. 2d 262 (2001); Colson, 174 F.3d at 506; Marshall,
134 F.3d at 321. The evidence of the non-movant is to be believed, with all justifiable
inferences drawn, and all reasonable doubts resolved in his favor. See Palmer v. BRG of Ga.,
Inc., 498 U.S. 46, 49 n.5, 112 L. Ed. 2d 349, 111 S. Ct. 401 (1990); Anderson, 477 U.S.
at 255; Martinez, 338 F.3d at 411; Harken Exploration Co., 261 F.3d at 471; Christopher Villa.
Ltd. Pushup v. Retsinas, 190 F.3d 310, 314 (5th Cir. 1999); Merritt-Campbell, Inc., 164 F.3d at
Plaintiff’s Response to Plaintiff Intervenor’s Page | 7
Motion For Summary Judgment
Electronically Filed
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Hidalgo County District Clerks
Reviewed By: Nilda Palacios
961; Samuel v. Holmes, 138 F.3d 173, 176 (5th Cir. 1998); Marshall, 134 F.3d at 321.
19. Furthermore, only reasonable inferences can be drawn from the evidence in favor of
The nonmoving party.'" Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 469 n.14,
119 L. Ed. 2d 265, 112 S. Ct. 2072 (1992) (emphasis in original) (quoting H.L. Hayden Co. of
N.Y., Inc. v. Siemens Med. Sys., Inc., 879 F.2d 1005, 1012 (2d Cir. 1989)).
Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish
the existence of an element essential to its case on which it bears the burden of proof at trial. See
Nebraska v. Wyoming, 507 U.S. 584, 590, 123 L. Ed. 2d 317, 113 S. Ct. 1689 (1993); Celotex
Corp., 477 U.S. at 322; Winner v. Texas Lottery Comm'n, 123 F.3d 321, 324 (5th Cir. 1997),
cert. denied, 523 U.S. 1073, 140 L. Ed. 2d 667 (1998). "In such a situation, there can be 'no
genuine issue as to any material fact' since a complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp., 477
U.S. at 322-23.
20. Here, it is rather obvious that there are more facts that the Intervenor Plaintiff has
cared to share with the Court that are important for the court to consider. Thus, there are material
facts that may affect the outcome of this case is evident and can only be resolved through a
meaningful hearing by the Court.
Wherefore, the Plaintiffs aver that material facts exist and only an evidentiary hearing on
the facts of the case will clear up disputes of this case
CONCLUSION
The Plaintiff prays that after a hearing the Court deny Plaintiff Intervenor’s Motion for
Summary Judgment in its entirety.
Plaintiff’s Response to Plaintiff Intervenor’s Page | 8
Motion For Summary Judgment
Electronically Filed
12/11/2023 11:16 AM
Hidalgo County District Clerks
Reviewed By: Nilda Palacios
Respectfully submitted,
LAW OFFICE OF FABIAN GUERRERO
3900 WEST Expressway 83
McAllen, Texas 78501
Telephone: 956-627-4878
Fax: 956-322-8213
By: /s/ Fabian Guerrero
Fabian Guerrero
State Bar No. 00795397
fabianlaw@sbcglobal.net
fabianlaw96@gmail.com
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I certify that a true copy and correct copy of the foregoing instrument and any associated
attachments, exhibits, or proposed orders, were electronically served or mailed by certified mail to all
opposing counsel and other parties listed below who have made an appearance in this suit pursuant to
TEX. R. CIV. P. 21(a) on December 11, 2023.
HK, REO, LLC
C/o Bellamy & Schultz, PLLC
Attn: Dylan Schultz
7200 N. MoPac Expy. Suite 310
Austin, Texas 78731
Via eService: Litigation@SRBSLaw.com
__/s/ Fabian Guerrero
Fabian Guerrero
Attorney for Plaintiff
Plaintiff’s Response to Plaintiff Intervenor’s Page | 9
Motion For Summary Judgment
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Fabian Guerrero on behalf of Fabian Guerrero
Bar No. 795397
fabianlaw96@gmail.com
Envelope ID: 82432637
Filing Code Description: Answer/Response
Filing Description: PLAINTIFFS RESPONSE TO PLAINTIFF
INTERVENORS MOTION FOR SUMMARY JUDGMENT
Status as of 12/11/2023 11:43 AM CST
Associated Case Party: PFS TAX LIEN TRUST 2014-1
Name BarNumber Email TimestampSubmitted Status
Dylan Schultz Litigation@srbslaw.com 12/11/2023 11:16:16 AM SENT
Associated Case Party: HK REO, LLC
Name BarNumber Email TimestampSubmitted Status
KALEB MCCANN KALEB@SRBSLAW.COM 12/11/2023 11:16:16 AM SENT
Tiffany Nguyen tiffany@srbslaw.com 12/11/2023 11:16:16 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
FABIAN GUERRERO fabianlaw96@gmail.com 12/11/2023 11:16:16 AM SENT
FABIAN GUERRERO fabianlaw@sbcglobal.net 12/11/2023 11:16:16 AM SENT
Preview
Electronically Filed 12/11/2023 11:16 AM Hidalgo County District Clerks Reviewed By: Nilda Palacios CAUSE № C-0386-23-I ALEJANDRO VILLEDA § IN THE DISTRICT COURT PLAINTIFF, § § VS § 398TH JUDICIAL DISTRICT § PFS TAX LIEN TRUST § SUCCESSOR IN INTEREST OF § PROPEL FINANCIAL SERVICES, LLC, § DEFENDANT(s). § HIDALGO COUNTY, TEXAS PLAINTIFF’S RESPONSE TO PLAINTIFF INTERVENOR’S MOTION FOR SUMMARY JUDGMENT COMES NOW, Plaintiff, Alejandro Villeda, files this his response to Plaintiff Intervenor’s Motion for Summary Judgment and in support thereof show as follows: I. FACTUAL BACKGROUND 1. This lawsuit stems from the wrongful seizure and sale of real property by the Defendant PFS Trust, Propel Financing Services, LLC, to HK, REO, and LLC. The Plaintiff herein avers that the factual statements are correct in as far as the real property described herein is concerned but Plaintiff is not privy to most of the facts as outlined by the Intervenor Plaintiff. 2. Plaintiff entered into an agreement with Defendant Propel Financial Services, LLC, to make regular monthly payments on the subject property of this lawsuit. 3. Further, Plaintiff’s agreement was materialized by the parties. It is further undisputed that Plaintiff, Alejandro Villeda in fact make all required payments in the amount of $183,000.00 in full satisfaction of the purchase price. (Receipts marked as Exhibit B have previously been submitted with Plaintiff’s initial pleadings.) Plaintiff’s Response to Plaintiff Intervenor’s Page | 1 Motion For Summary Judgment Electronically Filed 12/11/2023 11:16 AM Hidalgo County District Clerks Reviewed By: Nilda Palacios 4. For Defendant Propel Financial Services, to wash their hands clean of the agreement between the Plaintiff and those amounts to a travesty of justice that the Court cannot ignore. 5. This in itself substantiates Plaintiff’s argument that a breach of contract of contract has occurred, in addition to other causes of action, including but not limited to fraud, statutory fraud, alter ego, fraud in real estate, trespass to try title, unjust enrichment and possibly a civil conspiracy to defraud. INTERVENOR AND NOTICE 6. The fact that Intervenor Plaintiff HK, REO, LLC fails to address the entire facts of this case should make the Court wary because, assuming that there was a “tax sale” as stated by Intervenor Plaintiff, how we arrived at this sale should be of concern to the Court because we do not know whether Intervenor was aware of the existence of a contract between Plaintiff and Propel Financial Services, LLC and further if TLF REO, LLC, was aware of the same. 7. The question is whether all the subsequent parties after Propel Financial Services were aware of the true facts of this case. If they did, Plaintiff may, in addition to the causes of action states above, may have a cause of action for civil conspiracy involving all of the parties involved in this case, from Propel Financial Services, LLP to HK REO, LLC, since it is easy to hide behind abbreviations and LLCs. That is one of the reasons for the formation of LLCs, no one is aware of who is who. RIGHT OF REMPTION AND THE DISCOVERY RULE 8. Texas Property Code Sec. 34/21 provides a right of redemption to owners of real property used as a homestead. The period of redemption is 24 months or as stated in the property code the owner having a right of redemption may redeem the property on or before the second anniversary of the date of recording of the deed filed with the county deed records. Plaintiff’s Response to Plaintiff Intervenor’s Page | 2 Motion For Summary Judgment Electronically Filed 12/11/2023 11:16 AM Hidalgo County District Clerks Reviewed By: Nilda Palacios 9. The issue arises of what if the previous owner, the Plaintiff, was not aware of the deadline or statute of limitations in which to pay taxes paid by the subsequent purchaser, along with penalty and interest. 10. On January 13, 2023, the Texas Supreme Court issued its opinion in Marcus & Millichap Real Estate Investment Services of Nevada, Inc. v. Triex Texas Holdings, LLC , __ S.W.3d __, 2023 WL __ (Tex. Jan. 13, 2023) (per curiam) (“Triex”). The opinion addresses the discovery rule and fraudulent concealment, being legal principles used by litigants to extend the statute of limitations for what would be a stale claim. Importantly, the Triex opinion adds color to the Texas Supreme Court’s opinion of Berry v. Berry, 646 S.W.3d 516 (Tex. 2022) (“Berry”). In Berry, the Court brought Texas law back on the subject of limitations and the discovery rule. 11. Statutes of limitations exist to compel the assertion of claims within a reasonable period. “‘It is based on the theory that the uncertainty and insecurity caused by unsettled claims hinder the flow of commerce.’” Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996) (quoting Safeway Stores, Inc. v. Certainteed Corp., 710 S.W.2d 544, 545 (Tex.1986)). Defendants bear the initial burden of pleading, proving, and securing findings on the affirmative defense of statute of limitations. To avoid its application, a party must then both plead and prove the discovery rule or fraudulent concealment. If a party fails to plead and prove the date on which accrual occurred by way of the discovery rule, the “legal injury” determines when a cause of action accrues. Limitations begin to run upon accrual of the cause of action. In the context of a breach of contract and breach of a fiduciary duty, the legal injury generally accrues on the date of the alleged breach. Under Texas law, claims for breach of contract, fraud, and breach of fiduciary duty are subject to four-year statutes of limitation. Plaintiff’s Response to Plaintiff Intervenor’s Page | 3 Motion For Summary Judgment Electronically Filed 12/11/2023 11:16 AM Hidalgo County District Clerks Reviewed By: Nilda Palacios 12. The statute of limitations for breach of fiduciary duty is four years. Generally, a claim accrues when the defendant’s wrongful conduct causes the claimant to suffer a legal injury. A legal injury occurs—and the statute of limitations begins to run—“when facts come into existence that authorize a party to seek a judicial remedy.” A cause of action accrues when the injury occurs, “even if the fact of injury is not discovered until later, and even if all resulting damages have not yet occurred. Under the discovery rule the statute of limitations does not begin to run until the claimant knew or should have known of facts that the exercise of reasonable diligence would have led to the discovery of the wrongful act. The discovery rule exception defers accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to the cause of action. The discovery rule is a narrow exception that is only applied in “exceptional cases.” Applications of the rule should be few and narrowly drawn. 13. There has been a recent trend in Texas litigation of borrowers asserting claims or counterclaims against their lenders for breach of fiduciary duty. The first thing that a plaintiff has to establish in such a claim is that the lender actually owed it a fiduciary duty. While formal fiduciary obligations are created by law, an informal fiduciary duty may arise from a moral, social, domestic or purely personal relationship of trust and confidence, generally called a confidential relationship. This type of relationship is not imposed lightly by the courts and requires there to be a special relationship of trust and confidence between the parties beyond just a history of prior arms-length transactions) that existed prior to, and separate from, the loan or agreement giving rise to the plaintiff’s lawsuit. In August 2017, a Dallas plaintiff prevailed at trial on a breach of fiduciary duty claim against Plains Capital Bank after arguing that she had a long-standing business and personal relationship of trust and confidence with her banker. The Dallas Court of Appeals reversed. Plaintiff’s Response to Plaintiff Intervenor’s Page | 4 Motion For Summary Judgment Electronically Filed 12/11/2023 11:16 AM Hidalgo County District Clerks Reviewed By: Nilda Palacios Several Texas courts have also recognized that a special or informal fiduciary relationship could be created where a lender exercises “excessive lender control over, or influence in, the borrower's business activities.”6 This concept has its roots in the 1984 case of State National Bank of El Paso v. Farah Manufacturing Company, Inc. 14. Here, it is Plaintiff’s contention that a fiduciary duty existed between Propel Financial Services LLP and the Plaintiff because of the special relationship that the parties had. Accordingly, many courts and scholars have concluded that the existence of a "special relationship" between borrowers and lenders is a condition precedent to any establishment of a fiduciary relation. The question is not whether there is generally a fiduciary relation between borrowers and lenders, but rather, whether a fiduciary duty has arisen with respect to a particular aspect of their relationship. If such a duty has arisen, then the next question is whether there is a causal link between the borrower's damages and the lender's breach of its corresponding fiduciary duty. It is Plaintiff’s contention that it has and the Defendants had a duty to inform Plaintiff of the date of filing the deed filed after the sheriff’s sale. Thus, if the court finds that a fiduciary duty existed, as four year statute of limitations existed and Plaintiff is entitled to his day in court. II SUMMARY JUDGMENT STANDARD 15. The non-movant must expressly present to the trial court, by written answer or response, any issues defeating the movant's entitlement to summary judgment. See McConnell0, 858 S.W.2d at 343 (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979)); Dubose v. Worker's Medical, P.A., 117 S.W.3d at 916, 920 (Tex. App.—Houston [14th Dist.] 2003, no pet.); see TEX. R. CIV. P. 166a(c). Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal." TEX R. C IV. P. 166a(c); see Plaintiff’s Response to Plaintiff Intervenor’s Page | 5 Motion For Summary Judgment Electronically Filed 12/11/2023 11:16 AM Hidalgo County District Clerks Reviewed By: Nilda Palacios McConnell, 858 S.W.2d at 343; Dubose, 117 S.W.3d at 920; Querner Truck Lines, Inc. v. Alta Verde Indus., Inc., 747 S.W.2d 464, 469 (Tex. App.—San Antonio 1988, no writ) (finding non-movant waived argument on appeal that it was entitled to additional offset against movant's damages than offset allowed by trial court because non-movant did not raise issue of additional offset in its summary judgment response). To "expressly" present issues pursuant to Rule 166a(c), "[t]he written answer or response to the motion must fairly apprise the movant and the court of the issues the non-movant contends should defeat the motion." Clear Creek, 589 S.W.2d at 678; see Engel v. Pettit, 713 S.W.2d 770, 771-72 (Tex. App.—Houston [14th Dist.] 1986, no pet.). The term "issues" in Rule 166a(c) means "legal theories (i.e., grounds of recovery and defenses) and factual theories." Atl. Richfield Co. v. Exxon Corp., 663 S.W.2d 858, 863 (Tex. App.—Houston [14th Dist.] 1983), rev'd on other grounds, 678 S.W.2d 944 (Tex. 1984); see also Lee v. Rogers Agency, No. 06-15-00037-CV, 2017 Tex. App. LEXIS 1069 (Tex. App.— Texarkana February 8, 2017, pet. filed). Issues are not expressly presented. 16. The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 323,91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Martinez v. Schlumberger, Ltd., 338 F.3d 407, 411 (5th Cir. 2003); Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002); Colson v. Grohman, 174 F.3d 498, 506 (5th Cir. 1999); Marshall v. East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 321 (5th Cir. 1998). III ARGUMENTS AND AUTHORITIES Plaintiff’s Response to Plaintiff Intervenor’s Page | 6 Motion For Summary Judgment Electronically Filed 12/11/2023 11:16 AM Hidalgo County District Clerks Reviewed By: Nilda Palacios 17. "A fact is 'material' if it 'might affect the outcome of the suit under governing law.'" Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001) (emphasis in original) (quoting Anderson, 477 U.S. at 248); see Harken Exploration Co. v. Sphere Drake Ins. PLC, 261 F.3d 466, 471 (5th Cir. 2001); Merritt-Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir. 1999); Burgos v. Southwestern Bell Tel. Co., 20 F.3d 633, 635 (5th Cir. 1994). "An issue is 'genuine' if it is real and substantial, as opposed to merely formal, pretended, or a sham." Bazan, 246 F.3d at 489 (emphasis in original). Thus, a genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; accord Harken Exploration Co., 261 F.3d at 471; Merritt-Campbell, Inc., 164 F.3d at 961. The court must review the record 'taken as a whole.'" Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150, 147 L. Ed. 2d 105, 120 S. Ct. 2097 (2000) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587). 18. All the evidence must be viewed "in the light most favorable to the non-moving party without weighing the evidence, assessing its probative value, or resolving any factual disputes." Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir. 1996); see Reeves, 530 U.S. at 150; Brown v. City of Houston, 337 F.3d 539, 540 (5th Cir. 2003); Harken Exploration Co., 261 F.3d at 471; Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir.), cert. denied, 534 U.S. 951, 151 L. Ed. 2d 262 (2001); Colson, 174 F.3d at 506; Marshall, 134 F.3d at 321. The evidence of the non-movant is to be believed, with all justifiable inferences drawn, and all reasonable doubts resolved in his favor. See Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n.5, 112 L. Ed. 2d 349, 111 S. Ct. 401 (1990); Anderson, 477 U.S. at 255; Martinez, 338 F.3d at 411; Harken Exploration Co., 261 F.3d at 471; Christopher Villa. Ltd. Pushup v. Retsinas, 190 F.3d 310, 314 (5th Cir. 1999); Merritt-Campbell, Inc., 164 F.3d at Plaintiff’s Response to Plaintiff Intervenor’s Page | 7 Motion For Summary Judgment Electronically Filed 12/11/2023 11:16 AM Hidalgo County District Clerks Reviewed By: Nilda Palacios 961; Samuel v. Holmes, 138 F.3d 173, 176 (5th Cir. 1998); Marshall, 134 F.3d at 321. 19. Furthermore, only reasonable inferences can be drawn from the evidence in favor of The nonmoving party.'" Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 469 n.14, 119 L. Ed. 2d 265, 112 S. Ct. 2072 (1992) (emphasis in original) (quoting H.L. Hayden Co. of N.Y., Inc. v. Siemens Med. Sys., Inc., 879 F.2d 1005, 1012 (2d Cir. 1989)). Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to its case on which it bears the burden of proof at trial. See Nebraska v. Wyoming, 507 U.S. 584, 590, 123 L. Ed. 2d 317, 113 S. Ct. 1689 (1993); Celotex Corp., 477 U.S. at 322; Winner v. Texas Lottery Comm'n, 123 F.3d 321, 324 (5th Cir. 1997), cert. denied, 523 U.S. 1073, 140 L. Ed. 2d 667 (1998). "In such a situation, there can be 'no genuine issue as to any material fact' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 322-23. 20. Here, it is rather obvious that there are more facts that the Intervenor Plaintiff has cared to share with the Court that are important for the court to consider. Thus, there are material facts that may affect the outcome of this case is evident and can only be resolved through a meaningful hearing by the Court. Wherefore, the Plaintiffs aver that material facts exist and only an evidentiary hearing on the facts of the case will clear up disputes of this case CONCLUSION The Plaintiff prays that after a hearing the Court deny Plaintiff Intervenor’s Motion for Summary Judgment in its entirety. Plaintiff’s Response to Plaintiff Intervenor’s Page | 8 Motion For Summary Judgment Electronically Filed 12/11/2023 11:16 AM Hidalgo County District Clerks Reviewed By: Nilda Palacios Respectfully submitted, LAW OFFICE OF FABIAN GUERRERO 3900 WEST Expressway 83 McAllen, Texas 78501 Telephone: 956-627-4878 Fax: 956-322-8213 By: /s/ Fabian Guerrero Fabian Guerrero State Bar No. 00795397 fabianlaw@sbcglobal.net fabianlaw96@gmail.com ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE I certify that a true copy and correct copy of the foregoing instrument and any associated attachments, exhibits, or proposed orders, were electronically served or mailed by certified mail to all opposing counsel and other parties listed below who have made an appearance in this suit pursuant to TEX. R. CIV. P. 21(a) on December 11, 2023. HK, REO, LLC C/o Bellamy & Schultz, PLLC Attn: Dylan Schultz 7200 N. MoPac Expy. Suite 310 Austin, Texas 78731 Via eService: Litigation@SRBSLaw.com __/s/ Fabian Guerrero Fabian Guerrero Attorney for Plaintiff Plaintiff’s Response to Plaintiff Intervenor’s Page | 9 Motion For Summary Judgment Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Fabian Guerrero on behalf of Fabian Guerrero Bar No. 795397 fabianlaw96@gmail.com Envelope ID: 82432637 Filing Code Description: Answer/Response Filing Description: PLAINTIFFS RESPONSE TO PLAINTIFF INTERVENORS MOTION FOR SUMMARY JUDGMENT Status as of 12/11/2023 11:43 AM CST Associated Case Party: PFS TAX LIEN TRUST 2014-1 Name BarNumber Email TimestampSubmitted Status Dylan Schultz Litigation@srbslaw.com 12/11/2023 11:16:16 AM SENT Associated Case Party: HK REO, LLC Name BarNumber Email TimestampSubmitted Status KALEB MCCANN KALEB@SRBSLAW.COM 12/11/2023 11:16:16 AM SENT Tiffany Nguyen tiffany@srbslaw.com 12/11/2023 11:16:16 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status FABIAN GUERRERO fabianlaw96@gmail.com 12/11/2023 11:16:16 AM SENT FABIAN GUERRERO fabianlaw@sbcglobal.net 12/11/2023 11:16:16 AM SENT