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CAUSE NO. _____________________
DEUTSCHE BANK NATIONAL § IN THE DISTRICT COURT OF
TRUST COMPANY, AS TRUSTEE §
FOR GSAMP TRUST 2006-NC2, §
MORTGAGE PASS-THROUGH §
CERTIFICATES, SERIES 2006- §
NC2 §
PLAINTIFF §
V. §
§ HIDALGO COUNTY, TEXAS
OSCAR ANGUIANO, FABIAN §
ANGUIANO, ALLAN ANGUIANO §
AND ASTRID ELIZABETH §
ANGUIANO §
DEFENDANTS §
§
RE: 1004 Villas Del Norte §
Weslaco, Texas 78599 § ________JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION
Comes now, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE
FOR GSAMP TRUST 2006-NC2, MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-NC2, its successors and assigns, complaining of OSCAR ANGUIANO, FABIAN
ANGUIANO, ALLAN ANGUIANO and ASTRID ELIZABETH ANGUIANO and The
Unknown Heirs at Law of Yadira Ramos (“Defendants”). This is an In Rem proceeding. Plaintiff
does not seek personal liability against any Defendant obligated for the debt or named in this suit.
I.
DISCOVERY CONTROL PLAN
1. Plaintiff intends to conduct discovery under Level Two (2) of the Discovery
Control Plan pursuant to Rule 190.3 of the Texas Rules of Civil Procedure.
Plaintiff’s Original Petition
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II.
PARTIES
2. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR
GSAMP TRUST 2006-NC2, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2006-NC2, its assigns and successors (“Plaintiff” or “Deutsche”), acquires loan agreements
secured by real property in the State of Texas and when necessary enforces such security interests.
With respect to the Property and Loan Agreement made the subject of this proceeding, Plaintiff is
a mortgagee, in accordance with Tex. Prop. Code § 51.0001(4). Plaintiff is a foreign corporation
authorized to transact business in the state of Texas.
3. Yadira Ramos (“Decedent”), died on or about April 17, 2022. It appears no probate
proceeding has been opened for Decedent in the county where the property is located. Plaintiff
files this action against Decedent’s heirs-at-law in accordance to Tex. Estates Code §101.001.
4. According to Tex. Estates Code §101.001, the heirs-at-law of Decedent (“Heir”),
whether known or unknown, acquired Decedent’s undivided interest in the Property immediately
upon Decedent’s death. Each Heir is made a party to this proceeding under Tex. Estates Code §
101.001, Tex. Civ. Prac. & Rem. Code §§ 17.003 or 17.005, and Tex. R. Civ. P. 112 or 113.
5. Defendant, Oscar Anguiano, is an Obligor on the subject loan and an heir of
Decedent and an individual who is a resident of Texas and may be served with process at 1004
Villas Del Norte, Weslaco, Texas 78599, or wherever he may be found.
6. Defendant, Fabian Anguiano, is an heir of Decedent and an individual who is a
resident of Texas and may be served with process at 1004 Villas Del Norte, Weslaco, Texas 78599,
or wherever he may be found.
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7. Defendant, Allan Anguiano, is an heir of Decedent and an individual who is a
resident of Texas and may be served with process at 1004 Villas Del Norte, Weslaco, Texas 78599,
or wherever he may be found.
8. Defendant, Astrid Elizabeth Anguiano, is an heir of Decedent and an individual
who is a resident of Texas and may be served with process at 1004 Villas Del Norte, Weslaco,
Texas 78599, or wherever she may be found.
9. Defendant, The Unknown Heirs at Law of Yadira Ramos who have an interest in
the Property, but whose identity and whereabouts are unknown, in accordance with Tex. Civ. Prac.
& Rem. Code § 17.004, Plaintiff will seek service of process by citation by publication and the
appointment of an attorney ad litem to represent such Defendant’s interest.
III.
PROPERTY
10. This proceeding concerns one Note and Deed of Trust as that term “Loan
Agreement” (collectively) is generally defined in Tex. Bus. & Com. Code § 26.02. The Loan
Agreement is secured by the real property, fixtures and improvements commonly known as 1004
Villas Del Norte, Weslaco, Texas 78599 (“Property”), and more particularly described as follows:
LOT 5, VILLAS DEL NORTE SUBDIVISION, AN ADDITION TO THE CITY OF
WESLACO, HIDALGO COUNTY, TEXAS, ACCORDING TO MAP THEREOF
RECORDED IN VOLUME 34, PAGE 45A, MAP RECORDS OF HIDALGO COUNTY,
TEXAS.
IV.
JURISDICTION AND VENUE
11. This Court has jurisdiction over the controversy because Plaintiff seeks title,
possession or foreclosure of real property securing a loan agreement. Further, pursuant to Tex. R.
Civ. P. 47, Plaintiff seeks a Judgment for the full amount of monetary indebtedness owed to
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Mortgagee, which is monetary relief of $250,000 or less and non-monetary relief. Therefore, the
amount in controversy exceeds the minimum jurisdictional limits of this Court.
12. Venue is proper in this County because the real property, which is the subject of
this lawsuit, is located in said County.
V.
FACTS
13. On April 26, 2006, the Property at issue in this suit was conveyed to Yadira Ramos,
a single woman and Oscar Anguiano, a single man via General Warranty Deed With Vendor’s
Lien. (See a true and correct copy of the Warranty Deed marked as Exhibit “A” and incorporated
herein throughout).
14. On April 26, 2006, Yadira Ramos, deceased, and Oscar Anguiano executed a Note
(hereinafter “Note”) payable to New Century Mortgage Corporation, in which Decedent and Oscar
Anguiano promised to pay the sum of $109,800.00, with interest at the rate of 8.700% in monthly
installments beginning on June 1, 2006 and continuing monthly until May 1, 2036, on which date
the final installment and/or remaining balance due will be paid. (See a true and correct copy of
the Note marked as Exhibit “B” and incorporated herein throughout).
15. Contemporaneously with the execution of the Note, Decedent and Oscar Anguiano
executed and delivered a Deed of Trust (hereinafter “Deed of Trust”), conveying to New Century
Mortgage Corporation, the real property that is the subject of the Note and Deed of Trust in order
to secure payment of the Note. The Deed of Trust was recorded on May 5, 2006, under Instrument
No. 2006-1612162, in the official real property records of Hidalgo County, Texas. (See a true and
correct copy of the Deed of Trust marked as Exhibit “C” and incorporated herein throughout).
Plaintiff is the note holder and beneficiary according to the Assignment filed in the real property
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records. (See a true and correct copy of the Assignment marked as Exhibit “D” and incorporated
herein throughout).
16. No payment has been tendered under the terms of the Note and Deed of Trust since
November 1, 2023. On December 19, 2023, Plaintiff made formal written demand upon Decedent
to pay the arrearage. (See true and correct copies of the Demand Letters marked as Exhibit “E”
and incorporated herein throughout). The arrearage has not been cured since the date of the
Demand Letters and is not in compliance with the terms of the Note and Deed of Trust. The total
amount of the debt through March 31, 2024 consists of $95,212.57, which represents the unpaid
principal balance in addition to other charges due and owing pursuant to the terms of the Note and
Deed of Trust. However, this sum increases daily under the terms of the Note and Deed of Trust
to include, but not limited to, earned interest, collection cost to include attorney fees, taxes,
insurance and other legally authorized expenses.
17. This claim is just and true, it is due and all lawful and just offsets, payments, and
credits have been allowed.
18. All conditions precedent have been performed or have occurred, as required by Tex.
R. Civ. P. § 54, for Plaintiff to file this suit.
VI.
NATURE OF SUIT
19. Plaintiff’s statutory lien gives Plaintiff an enforceable and superior in rem lien again
the Property. Because of a material breach of the Note and Deed of Trust, Plaintiff seeks to enforce
its statutory lien, quiet title and exercise its right of title and possession to the Property in
accordance with the terms of the Loan Agreement and Tex. Prop. Code § 51.002 and Tex. R. Civ.
Proc. 735 or, alternatively, Tex. R. Civ. P. 309.
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VII.
CAUSES OF ACTION
A. ENFORCEMENT OF STATUTORY PROBATE LIEN
20. For this cause of action, Plaintiff adopts by reference sections III-VI of this petition.
21. Pursuant to the Uniform Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code
§ 37.001, et seq., Plaintiff seeks a declaration that Plaintiff has an in rem lien against the Property
under the terms of the Loan Agreement and the following statutory authority:
a. Tex. Estate Code §§ 101.001 and 101.051, which states in pertinent part:
“Sec. 101.001: (a) Subject to Section 101.051, if a person
dies leaving a lawful will: (1) all of the person’s estate that
is devised by the will vests immediately in the devisees; (2)
all powers of appointment granted in the will vest
immediately in the donees of those powers; and (3) all of the
person’s estate that is not devised by the will vests
immediately in the person’s heirs at law. (b) Subject to
Section 101.051, the estate of a person who dies intestate
vests immediately in the person’s heirs at law.
“Sec. 101.051: (a) A decedent’s estate vests in accordance
with Section 101.001(a) subject to the payment of: (1) the
debts of the decedent, except as exempted by law; and (2)
any court-ordered child support payments that are
delinquent on the date of the decedent’s death; (b) A
decedent’s estate vests in accordance with Section
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101.001(b) subject to the payment of, and is still liable for:
(1) the debts of the decedent, except as exempted by law.
22. Because of a material breach of the Loan Agreement by Decedent and Oscar
Anguiano, Plaintiff seeks to enforce its statutory lien against the Property in accordance with the
terms of the Loan Agreement and Tex. Prop. Code § 51.002 or Tex. R. Civ. P. § 309. No personal
liability is being sought against the Heirs as the lien is in rem only.
B. BREACH OF CONTRACT
23. For this cause of action, Plaintiff incorporates, as though fully set forth herein, each
and every allegation set forth above.
24. Decedent and Oscar Anguiano are the mortgagors, the party obligated under the
terms of the Loan Agreement and is obligated to pay all amounts due under the Loan Agreement.
25. Plaintiff performed completely under the terms of the Loan Agreement and as
shown above and by the attached documents is beneficiary of the deed of trust and the party entitled
to enforce same.
26. Decedent and Oscar Anguiano breached the terms of the Loan Agreement by failing
to tender payments in accordance with the Loan Agreement. As shown above, there exist
payments that are currently due and owing and unpaid. The unpaid balance owing as of March
31, 2024 is $95,212.57, with interest and fees continuing to accrue in accordance with the terms
of the Loan Agreement. Decedent and Oscar Anguiano were provided the opportunity to cure the
default, and failed to do so. As of the date of this filing, Defendants have not cured the default, or
arranged for the default to be cured.
C. RESCISSION OF VENDOR’S LIEN
27. For this cause of action, Plaintiff adopts by reference all sections of this petition.
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28. Pursuant to the Texas Uniform Declaratory Judgment Act, Tex. Civ. Prac. & Rem.
§ 37.001, et. seq., Plaintiff requests this Court declare and enter judgment as to all Defendants that
Plaintiff has superior title to the Property secured by a vendor’s lien as evidenced by the reservations
in the Loan Agreement documents with state in pertinent part:
Deed: “The Vendor’s Lien against and superior title to the property are
retained until each note described is fully paid according to its terms, at which
time this deed shall become absolute.”
29. Plaintiff seeks to exercise its right of title and possession to the Property against all
Defendants by rescission of the vendor’s lien due to the material breach of the Loan Agreement.
As the Texas Supreme Court held in Estes v. Browning, 11 Tex. 237 (1853), “no man shall claim
title to the land of another without payment of the price agreed upon.”
30. Until the Loan Agreement debt used to acquire the Property is paid, the obligors
have only equitable title to the Property that is the use, benefit and enjoyment of the Property – not
legal title which is held by the Plaintiff.
31. For due process purposes, Plaintiff seeks to rescind the vendor’s lien by using the
provisions of the Loan Agreement and Tex. Prop. Code § 51.002 to conduct a non-judicial
foreclosure of the property.
D. QUIET TITLE AND FORECLOSURE
32. Pursuant to the Texas Uniform Declaratory Judgment Act, Tex. Civ. Prac. & Rem.
§ 37.001, et seq., Plaintiff requests this Court declare and enter judgment that after enforcing its
security interest, Plaintiff has all right to and interest in the Property and that all of Decedent’s and
Defendant’s interests in the Property be vested in Plaintiff. Brainard v. State, 12 S.W.3d 6, 29
(Tex.1999).
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33. Upon Decedent’s death, the Heirs of Decedent became vested with an interest in
the Property, adverse to the Plaintiff. All claims to the Property by the Heirs are subject to
Plaintiff’s superior security instrument in the Property.
34. The Heirs cannot hold greater rights in the property than the Decedent, who was
the obligor under the Loan Agreement, and subject to the security instrument against the Property.
Therefore, the Heirs take their interest subject to the Loan Agreement to which the Decedent was
bound.
35. Though not personally liable for the debt, the Heirs have failed to make payments
and/or payoff the loan, while still enjoying the use and benefit of the property. Any and all interest
in the Property the Heirs maintain is extinguished when the Plaintiff enforces its security interest
against the Property.
36. Because of a material breach of the Loan Agreement, Plaintiff seeks to enforce its
security interest in the Property against the Heirs and Defendants in accordance with the terms of
the Loan Agreement and Tex. Prop. Code § 51.002 or Tex. R. Civ. P. 309.
VIII.
DAMAGES
A. ORDER FOR NON-JUDICIAL FORECLOSURE
37. Because of the material breach of the Loan Agreement, Plaintiff seeks non-judicial
foreclosure pursuant to the terms of the Note, Deed of Trust, Tex. Prop. Code § 51.002, and Tex.
R. Civ. Proc. 735 and all other applicable law with respect to all Defendants who are the obligors
under the Note and Deed of Trust. No personal liability is being sought against Defendants.
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B. ALTERNATIVELY, ORDER FOR JUDICIAL FORECLOSURE
38. For failure to cure the default of the Loan Agreement, Plaintiff seeks to enforce its
security interest against the Property in an amount equal to the payoff at the time of foreclosure
sale. No personal liability is sought against Defendants.
39. Alternatively, pursuant to Tex. R. Civ. P. 309, Plaintiff seeks a judgment for
foreclosure together with an order of sale issued to the sheriff or constable of the county where the
Property is located directing the sheriff or constable to seize and sell the Property in satisfaction
of the Loan Agreement debt.
PRAYER
For these reasons, Plaintiff requests that Defendants be cited to appear and answer, and
upon final hearing, the Court enter a judgment for the Plaintiff for:
a. A declaration that Plaintiff has a lien against the Property in an amount equal to the
pay-off of the Loan Agreement;
b. An order directing the sale of the Property by non-judicial foreclosure of its lien on
the property in accordance with the terms and conditions of the Note, Loan
Agreement, Tex. Prop. Code § 51.002, and Tex. R. Civ. Proc. 735;
c. Plaintiff is authorized to rescind the vendor’s lien and enforce the loan agreement
made the subject of this proceeding against the secured Property pursuant to: Tex.
Bus. & Comm. Code § 3.301 or Tex. Prop Code §§ 51.001, 51.0025; Tex. Prop.
Code § 51002 et seq.; and Tex. Estate Code §§ 101.051;
d. The Mortgagor, Mortgagor’s putative estate, and Mortgagor’s Heirs will have no
personal liability for the debt and shall be divested of all right title in the Property
securing the Loan Agreement pursuant to Tex. Estate Code §§ 101.001 and 101.051
upon foreclosure in accordance with Tex. Prop. Code § 51002 et seq.;
e. Alternatively, an order directing the sale of the Property pursuant to Tex. R. Civ. P.
309 and in accordance with the loan documents enforced by a judicial foreclosure
sale at public auction as of the date of the Loan Agreement and Power of Sale; and
f. Such other and further relief, both at law and in equity, to which Plaintiff may be
justly entitled.
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Respectfully submitted,
CODILIS & MOODY, P.C.
/s/ Juanita M. Deaver
Juanita M. Deaver SBOT 24126385
Danya F. Gladney SBOT 24059786
Kelly M. Doherty SBOT 24118059
William A. Morphis SBOT 24131905
Nicole M. Bartee SBOT 24001674
Aaron J. Demuth SBOT 24111076
20405 State Highway 249, Ste 170
Houston, Texas 77070
Telephone: (281) 925-5200
Email: Juanita.deaver@tx.cslegal.com
Email: danya.gladney@tx.cslegal.com
ATTORNEYS FOR PLAINTIFF
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Electronically Filed 4/16/2024 9:43 AM Hidalgo County District Clerks Reviewed By: Armando Cantu C-1767-24-J CAUSE NO. _____________________ DEUTSCHE BANK NATIONAL § IN THE DISTRICT COURT OF TRUST COMPANY, AS TRUSTEE § FOR GSAMP TRUST 2006-NC2, § MORTGAGE PASS-THROUGH § CERTIFICATES, SERIES 2006- § NC2 § PLAINTIFF § V. § § HIDALGO COUNTY, TEXAS OSCAR ANGUIANO, FABIAN § ANGUIANO, ALLAN ANGUIANO § AND ASTRID ELIZABETH § ANGUIANO § DEFENDANTS § § RE: 1004 Villas Del Norte § Weslaco, Texas 78599 § ________JUDICIAL DISTRICT PLAINTIFF’S ORIGINAL PETITION Comes now, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR GSAMP TRUST 2006-NC2, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-NC2, its successors and assigns, complaining of OSCAR ANGUIANO, FABIAN ANGUIANO, ALLAN ANGUIANO and ASTRID ELIZABETH ANGUIANO and The Unknown Heirs at Law of Yadira Ramos (“Defendants”). This is an In Rem proceeding. Plaintiff does not seek personal liability against any Defendant obligated for the debt or named in this suit. I. DISCOVERY CONTROL PLAN 1. Plaintiff intends to conduct discovery under Level Two (2) of the Discovery Control Plan pursuant to Rule 190.3 of the Texas Rules of Civil Procedure. Plaintiff’s Original Petition 24-01017 / Anguiano 1 Electronically Filed 4/16/2024 9:43 AM Hidalgo County District Clerks Reviewed By: Armando Cantu C-1767-24-J II. PARTIES 2. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR GSAMP TRUST 2006-NC2, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-NC2, its assigns and successors (“Plaintiff” or “Deutsche”), acquires loan agreements secured by real property in the State of Texas and when necessary enforces such security interests. With respect to the Property and Loan Agreement made the subject of this proceeding, Plaintiff is a mortgagee, in accordance with Tex. Prop. Code § 51.0001(4). Plaintiff is a foreign corporation authorized to transact business in the state of Texas. 3. Yadira Ramos (“Decedent”), died on or about April 17, 2022. It appears no probate proceeding has been opened for Decedent in the county where the property is located. Plaintiff files this action against Decedent’s heirs-at-law in accordance to Tex. Estates Code §101.001. 4. According to Tex. Estates Code §101.001, the heirs-at-law of Decedent (“Heir”), whether known or unknown, acquired Decedent’s undivided interest in the Property immediately upon Decedent’s death. Each Heir is made a party to this proceeding under Tex. Estates Code § 101.001, Tex. Civ. Prac. & Rem. Code §§ 17.003 or 17.005, and Tex. R. Civ. P. 112 or 113. 5. Defendant, Oscar Anguiano, is an Obligor on the subject loan and an heir of Decedent and an individual who is a resident of Texas and may be served with process at 1004 Villas Del Norte, Weslaco, Texas 78599, or wherever he may be found. 6. Defendant, Fabian Anguiano, is an heir of Decedent and an individual who is a resident of Texas and may be served with process at 1004 Villas Del Norte, Weslaco, Texas 78599, or wherever he may be found. 44-24-01017 / Anguiano 2 Electronically Filed 4/16/2024 9:43 AM Hidalgo County District Clerks Reviewed By: Armando Cantu C-1767-24-J 7. Defendant, Allan Anguiano, is an heir of Decedent and an individual who is a resident of Texas and may be served with process at 1004 Villas Del Norte, Weslaco, Texas 78599, or wherever he may be found. 8. Defendant, Astrid Elizabeth Anguiano, is an heir of Decedent and an individual who is a resident of Texas and may be served with process at 1004 Villas Del Norte, Weslaco, Texas 78599, or wherever she may be found. 9. Defendant, The Unknown Heirs at Law of Yadira Ramos who have an interest in the Property, but whose identity and whereabouts are unknown, in accordance with Tex. Civ. Prac. & Rem. Code § 17.004, Plaintiff will seek service of process by citation by publication and the appointment of an attorney ad litem to represent such Defendant’s interest. III. PROPERTY 10. This proceeding concerns one Note and Deed of Trust as that term “Loan Agreement” (collectively) is generally defined in Tex. Bus. & Com. Code § 26.02. The Loan Agreement is secured by the real property, fixtures and improvements commonly known as 1004 Villas Del Norte, Weslaco, Texas 78599 (“Property”), and more particularly described as follows: LOT 5, VILLAS DEL NORTE SUBDIVISION, AN ADDITION TO THE CITY OF WESLACO, HIDALGO COUNTY, TEXAS, ACCORDING TO MAP THEREOF RECORDED IN VOLUME 34, PAGE 45A, MAP RECORDS OF HIDALGO COUNTY, TEXAS. IV. JURISDICTION AND VENUE 11. This Court has jurisdiction over the controversy because Plaintiff seeks title, possession or foreclosure of real property securing a loan agreement. Further, pursuant to Tex. R. Civ. P. 47, Plaintiff seeks a Judgment for the full amount of monetary indebtedness owed to 44-24-01017 / Anguiano 3 Electronically Filed 4/16/2024 9:43 AM Hidalgo County District Clerks Reviewed By: Armando Cantu C-1767-24-J Mortgagee, which is monetary relief of $250,000 or less and non-monetary relief. Therefore, the amount in controversy exceeds the minimum jurisdictional limits of this Court. 12. Venue is proper in this County because the real property, which is the subject of this lawsuit, is located in said County. V. FACTS 13. On April 26, 2006, the Property at issue in this suit was conveyed to Yadira Ramos, a single woman and Oscar Anguiano, a single man via General Warranty Deed With Vendor’s Lien. (See a true and correct copy of the Warranty Deed marked as Exhibit “A” and incorporated herein throughout). 14. On April 26, 2006, Yadira Ramos, deceased, and Oscar Anguiano executed a Note (hereinafter “Note”) payable to New Century Mortgage Corporation, in which Decedent and Oscar Anguiano promised to pay the sum of $109,800.00, with interest at the rate of 8.700% in monthly installments beginning on June 1, 2006 and continuing monthly until May 1, 2036, on which date the final installment and/or remaining balance due will be paid. (See a true and correct copy of the Note marked as Exhibit “B” and incorporated herein throughout). 15. Contemporaneously with the execution of the Note, Decedent and Oscar Anguiano executed and delivered a Deed of Trust (hereinafter “Deed of Trust”), conveying to New Century Mortgage Corporation, the real property that is the subject of the Note and Deed of Trust in order to secure payment of the Note. The Deed of Trust was recorded on May 5, 2006, under Instrument No. 2006-1612162, in the official real property records of Hidalgo County, Texas. (See a true and correct copy of the Deed of Trust marked as Exhibit “C” and incorporated herein throughout). Plaintiff is the note holder and beneficiary according to the Assignment filed in the real property 44-24-01017 / Anguiano 4 Electronically Filed 4/16/2024 9:43 AM Hidalgo County District Clerks Reviewed By: Armando Cantu C-1767-24-J records. (See a true and correct copy of the Assignment marked as Exhibit “D” and incorporated herein throughout). 16. No payment has been tendered under the terms of the Note and Deed of Trust since November 1, 2023. On December 19, 2023, Plaintiff made formal written demand upon Decedent to pay the arrearage. (See true and correct copies of the Demand Letters marked as Exhibit “E” and incorporated herein throughout). The arrearage has not been cured since the date of the Demand Letters and is not in compliance with the terms of the Note and Deed of Trust. The total amount of the debt through March 31, 2024 consists of $95,212.57, which represents the unpaid principal balance in addition to other charges due and owing pursuant to the terms of the Note and Deed of Trust. However, this sum increases daily under the terms of the Note and Deed of Trust to include, but not limited to, earned interest, collection cost to include attorney fees, taxes, insurance and other legally authorized expenses. 17. This claim is just and true, it is due and all lawful and just offsets, payments, and credits have been allowed. 18. All conditions precedent have been performed or have occurred, as required by Tex. R. Civ. P. § 54, for Plaintiff to file this suit. VI. NATURE OF SUIT 19. Plaintiff’s statutory lien gives Plaintiff an enforceable and superior in rem lien again the Property. Because of a material breach of the Note and Deed of Trust, Plaintiff seeks to enforce its statutory lien, quiet title and exercise its right of title and possession to the Property in accordance with the terms of the Loan Agreement and Tex. Prop. Code § 51.002 and Tex. R. Civ. Proc. 735 or, alternatively, Tex. R. Civ. P. 309. 44-24-01017 / Anguiano 5 Electronically Filed 4/16/2024 9:43 AM Hidalgo County District Clerks Reviewed By: Armando Cantu C-1767-24-J VII. CAUSES OF ACTION A. ENFORCEMENT OF STATUTORY PROBATE LIEN 20. For this cause of action, Plaintiff adopts by reference sections III-VI of this petition. 21. Pursuant to the Uniform Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code § 37.001, et seq., Plaintiff seeks a declaration that Plaintiff has an in rem lien against the Property under the terms of the Loan Agreement and the following statutory authority: a. Tex. Estate Code §§ 101.001 and 101.051, which states in pertinent part: “Sec. 101.001: (a) Subject to Section 101.051, if a person dies leaving a lawful will: (1) all of the person’s estate that is devised by the will vests immediately in the devisees; (2) all powers of appointment granted in the will vest immediately in the donees of those powers; and (3) all of the person’s estate that is not devised by the will vests immediately in the person’s heirs at law. (b) Subject to Section 101.051, the estate of a person who dies intestate vests immediately in the person’s heirs at law. “Sec. 101.051: (a) A decedent’s estate vests in accordance with Section 101.001(a) subject to the payment of: (1) the debts of the decedent, except as exempted by law; and (2) any court-ordered child support payments that are delinquent on the date of the decedent’s death; (b) A decedent’s estate vests in accordance with Section 44-24-01017 / Anguiano 6 Electronically Filed 4/16/2024 9:43 AM Hidalgo County District Clerks Reviewed By: Armando Cantu C-1767-24-J 101.001(b) subject to the payment of, and is still liable for: (1) the debts of the decedent, except as exempted by law. 22. Because of a material breach of the Loan Agreement by Decedent and Oscar Anguiano, Plaintiff seeks to enforce its statutory lien against the Property in accordance with the terms of the Loan Agreement and Tex. Prop. Code § 51.002 or Tex. R. Civ. P. § 309. No personal liability is being sought against the Heirs as the lien is in rem only. B. BREACH OF CONTRACT 23. For this cause of action, Plaintiff incorporates, as though fully set forth herein, each and every allegation set forth above. 24. Decedent and Oscar Anguiano are the mortgagors, the party obligated under the terms of the Loan Agreement and is obligated to pay all amounts due under the Loan Agreement. 25. Plaintiff performed completely under the terms of the Loan Agreement and as shown above and by the attached documents is beneficiary of the deed of trust and the party entitled to enforce same. 26. Decedent and Oscar Anguiano breached the terms of the Loan Agreement by failing to tender payments in accordance with the Loan Agreement. As shown above, there exist payments that are currently due and owing and unpaid. The unpaid balance owing as of March 31, 2024 is $95,212.57, with interest and fees continuing to accrue in accordance with the terms of the Loan Agreement. Decedent and Oscar Anguiano were provided the opportunity to cure the default, and failed to do so. As of the date of this filing, Defendants have not cured the default, or arranged for the default to be cured. C. RESCISSION OF VENDOR’S LIEN 27. For this cause of action, Plaintiff adopts by reference all sections of this petition. 44-24-01017 / Anguiano 7 Electronically Filed 4/16/2024 9:43 AM Hidalgo County District Clerks Reviewed By: Armando Cantu C-1767-24-J 28. Pursuant to the Texas Uniform Declaratory Judgment Act, Tex. Civ. Prac. & Rem. § 37.001, et. seq., Plaintiff requests this Court declare and enter judgment as to all Defendants that Plaintiff has superior title to the Property secured by a vendor’s lien as evidenced by the reservations in the Loan Agreement documents with state in pertinent part: Deed: “The Vendor’s Lien against and superior title to the property are retained until each note described is fully paid according to its terms, at which time this deed shall become absolute.” 29. Plaintiff seeks to exercise its right of title and possession to the Property against all Defendants by rescission of the vendor’s lien due to the material breach of the Loan Agreement. As the Texas Supreme Court held in Estes v. Browning, 11 Tex. 237 (1853), “no man shall claim title to the land of another without payment of the price agreed upon.” 30. Until the Loan Agreement debt used to acquire the Property is paid, the obligors have only equitable title to the Property that is the use, benefit and enjoyment of the Property – not legal title which is held by the Plaintiff. 31. For due process purposes, Plaintiff seeks to rescind the vendor’s lien by using the provisions of the Loan Agreement and Tex. Prop. Code § 51.002 to conduct a non-judicial foreclosure of the property. D. QUIET TITLE AND FORECLOSURE 32. Pursuant to the Texas Uniform Declaratory Judgment Act, Tex. Civ. Prac. & Rem. § 37.001, et seq., Plaintiff requests this Court declare and enter judgment that after enforcing its security interest, Plaintiff has all right to and interest in the Property and that all of Decedent’s and Defendant’s interests in the Property be vested in Plaintiff. Brainard v. State, 12 S.W.3d 6, 29 (Tex.1999). 44-24-01017 / Anguiano 8 Electronically Filed 4/16/2024 9:43 AM Hidalgo County District Clerks Reviewed By: Armando Cantu C-1767-24-J 33. Upon Decedent’s death, the Heirs of Decedent became vested with an interest in the Property, adverse to the Plaintiff. All claims to the Property by the Heirs are subject to Plaintiff’s superior security instrument in the Property. 34. The Heirs cannot hold greater rights in the property than the Decedent, who was the obligor under the Loan Agreement, and subject to the security instrument against the Property. Therefore, the Heirs take their interest subject to the Loan Agreement to which the Decedent was bound. 35. Though not personally liable for the debt, the Heirs have failed to make payments and/or payoff the loan, while still enjoying the use and benefit of the property. Any and all interest in the Property the Heirs maintain is extinguished when the Plaintiff enforces its security interest against the Property. 36. Because of a material breach of the Loan Agreement, Plaintiff seeks to enforce its security interest in the Property against the Heirs and Defendants in accordance with the terms of the Loan Agreement and Tex. Prop. Code § 51.002 or Tex. R. Civ. P. 309. VIII. DAMAGES A. ORDER FOR NON-JUDICIAL FORECLOSURE 37. Because of the material breach of the Loan Agreement, Plaintiff seeks non-judicial foreclosure pursuant to the terms of the Note, Deed of Trust, Tex. Prop. Code § 51.002, and Tex. R. Civ. Proc. 735 and all other applicable law with respect to all Defendants who are the obligors under the Note and Deed of Trust. No personal liability is being sought against Defendants. 44-24-01017 / Anguiano 9 Electronically Filed 4/16/2024 9:43 AM Hidalgo County District Clerks Reviewed By: Armando Cantu C-1767-24-J B. ALTERNATIVELY, ORDER FOR JUDICIAL FORECLOSURE 38. For failure to cure the default of the Loan Agreement, Plaintiff seeks to enforce its security interest against the Property in an amount equal to the payoff at the time of foreclosure sale. No personal liability is sought against Defendants. 39. Alternatively, pursuant to Tex. R. Civ. P. 309, Plaintiff seeks a judgment for foreclosure together with an order of sale issued to the sheriff or constable of the county where the Property is located directing the sheriff or constable to seize and sell the Property in satisfaction of the Loan Agreement debt. PRAYER For these reasons, Plaintiff requests that Defendants be cited to appear and answer, and upon final hearing, the Court enter a judgment for the Plaintiff for: a. A declaration that Plaintiff has a lien against the Property in an amount equal to the pay-off of the Loan Agreement; b. An order directing the sale of the Property by non-judicial foreclosure of its lien on the property in accordance with the terms and conditions of the Note, Loan Agreement, Tex. Prop. Code § 51.002, and Tex. R. Civ. Proc. 735; c. Plaintiff is authorized to rescind the vendor’s lien and enforce the loan agreement made the subject of this proceeding against the secured Property pursuant to: Tex. Bus. & Comm. Code § 3.301 or Tex. Prop Code §§ 51.001, 51.0025; Tex. Prop. Code § 51002 et seq.; and Tex. Estate Code §§ 101.051; d. The Mortgagor, Mortgagor’s putative estate, and Mortgagor’s Heirs will have no personal liability for the debt and shall be divested of all right title in the Property securing the Loan Agreement pursuant to Tex. Estate Code §§ 101.001 and 101.051 upon foreclosure in accordance with Tex. Prop. Code § 51002 et seq.; e. Alternatively, an order directing the sale of the Property pursuant to Tex. R. Civ. P. 309 and in accordance with the loan documents enforced by a judicial foreclosure sale at public auction as of the date of the Loan Agreement and Power of Sale; and f. Such other and further relief, both at law and in equity, to which Plaintiff may be justly entitled. 44-24-01017 / Anguiano 10 Electronically Filed 4/16/2024 9:43 AM Hidalgo County District Clerks Reviewed By: Armando Cantu C-1767-24-J Respectfully submitted, CODILIS & MOODY, P.C. /s/ Juanita M. Deaver Juanita M. Deaver SBOT 24126385 Danya F. Gladney SBOT 24059786 Kelly M. Doherty SBOT 24118059 William A. Morphis SBOT 24131905 Nicole M. Bartee SBOT 24001674 Aaron J. Demuth SBOT 24111076 20405 State Highway 249, Ste 170 Houston, Texas 77070 Telephone: (281) 925-5200 Email: Juanita.deaver@tx.cslegal.com Email: danya.gladney@tx.cslegal.com ATTORNEYS FOR PLAINTIFF 44-24-01017 / Anguiano 11