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CAUSE NO.
Michael Gautreau, § IN THE DISTRICT COURT OF
Plaintiffis),
Vv.
FORT BEND COUNTY, TEXAS
WELLS FARGO BANK, N.A.,
Defendant(s),
§ JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION FOR DECLARATORY JUDGMENT AND
APPLI CATION
— FOR TEMPORA RY RESTRAIN ING ORDER
VIRDER AND
AND INJUNCTI VE
——— SSH EAE INJUNCIIV E RELIEF
RELTER
TO THE HONORABLE JUDGE OF THE COURT:
NOW COMES MICHAEL GAUTREAU, the Plaintiff, complaining of Defendant WELLS
FARGO BANK, N.A. and would show the Court the following:
Discovery Control Plan
1. MICHAEL GAUTREAU proposes that the discovery in this case be conducted under Discovery
Control Plan Level 2. Tex. R. Civ. P. 190.3
Parties
MICHAEL GAUTREAU is a natural person whose homestead is in FORT BEND County Texas.
Defendant, WELLS FARGO BANK, N.A. is a national banking company and may be served with
process by and through its registered agent, Registered Agent Solutions, Inc., at 211 E. 7" St. Suite
620, Austin, Texas 78744.
Venue and Jurisdiction
This Court has jurisdiction over the subject matter of this case, because the amount in controversy
exceeds this Court’s minimum jurisdictional requirements.
The Court has personal jurisdiction over the Defendant under Sec. 17.003 of the Texas Civil
Practices and Remedies Code, because the real property, the subject of this lawsuit, is located in
Texas.
The venue in FORT BEND County, Texas is proper in this cause under Section 15.011 of the Texas
Civil Practice and Remedies Code because the real property, the subject of this lawsuit, is situated
in FORT BEND County, Texas.
PLAINTIFF PETITION DECLARATORY JUDGMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 1
ROUTED TO COURT
RT'D TOD. CLERK 5/3/24 AS
Brief Summary
7. The May 7, 2024, scheduled substitute trustee sale of the Property (the “Substitute Trustee Sale”)
is unlawful because the Plaintiff, through his attorney James Minerve, sent the Defendant a
Qualified Written Request (“QWR”), pursuant to RESPA, 12 USC §2605(e); however, the
Defendant did not cancel the Substitute Trustee Sale until the loan servicer fully responds to the
QWR as required under 12 C.F.R 1024.35(b)(9) and (10) and 1024.35(¢)(3)(i)(B). Furthermore,
the Defendant violated the Dual Tracking Provisions of Regulation X (RESPA) 12 CFR
1024.41(g).
Factual round
The Property
The Plaintiff is the owner of the property located at flee
tie (““Homestead” or “Property” or “real property”). The Plaintiff resides at this address, which
is his homestead.
Deed of Trust.
February 29, 2016, The Plaintiff closed on a federally related purchase money loan for
$160,050.00, secured by a Deed of Trust (DOT). See Exhibit A
10. WELLS FARGO BANK, N.A. is the original lender/mortgagee.
11. The original trustee is Robert K. Fowler.
12, WELLS FARGO BANK, N.A. is the current lender/mortgagee.
13. Wells Fargo Home Mortgage is the current loan servicer.
14. Attorneys of Abertelli Law, are designated as the purported current trustee.
15. According to a recent Broker’s Price Opinion, the value of the property is $295,000.
16. The monthly mortgage is $1,558.46.
17. The approximate arrears is $25,000.
18. The approximate payoff is $141,000.
19. The Plaintiff has approximately $154,000 of equity in the Property.
20. Recently, the purported current trustee posted a Substitute Trustee Sale Notice in the FORT
BEND County Clerk’s Office.
21. The Plaintiff has been preapproved for a refinance loan that will close within 30 days and pay off
the Defendant in full, provided the May 7, 2024, scheduled substitute trustee sale is cancelled.
22. The Plaintiff has never filed bankruptcy or applied for a TRO to stop a foreclosure.
PLAINTIFF PETITION DECLARATORY JUDGMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 2
Qualified Written Request re: Notice of Error Prohibiting Foreclosure
23. Friday, April 26, 2024, The Plaintiff through his attorney James Minerve, sent the Defendant a
QWR pursuant to RESPA, 12 USC 2605(e). See Exhibit B and C
24, The QWR included a notice of error that 12 C.F.R. 1024.41(g) prohibited the loan servicer from
foreclosing. See Exhibit D
25. Regulation X, (b)(9) and (10) and 12 C.F.R. 1024.35(e)(3)(i)(B) prohibit a loan servicer from
foreclosing on a borrower before fully responding to a QWR or correcting the errors pointed
out in the QWR relating to 12 C.F.R. 1024.41(g). See Exhibit E
26. Neither the Defendant nor the Current Loan Servicer have responded to the Plaintiff's QWR.
Therefore, May 7, 2024, scheduled Substitute Trustee Sale of the property is unlawful.
27. If the foreclosure is not postponed until the loan servicer responds to the QWR, the Plaintiff will
suffer irreparable harm by losing title to his homestead and approximately $2,970,000, of equity in
the Property.
Loss Mitigation Application
28. In February 2024, the Plaintiff submitted a completed loss mitigation application to the loan
servicer. On that date the Plaintiff submitted all required completed loss mitigation forms, signed
and dated, and submitted all required supporting documents, as specified on the loan servicer’s
Website.
29. To date none of the representatives of the loan servicer have sent the Plaintiff a rejection letter
denying the loss mitigation application and explaining that the Plaintiff is ineligible for any loss
mitigation relief, and the appeal process has been exhausted or is inapplicable, as required by 12
C.F.R 1024.41(g).
Arguments
Violation of Dual Tracking Provisions of Regulation X,
12 C.F.R 1024.35(b)(9) and (10) and 1024.35(e)(3)(i)(B) and 12 CFR 1024.41(g)
30. The Substitute Trustee Sale is unlawful because the Plaintiff sent the Defendant a QWR, pursuant
to RESPA, 12 USC § 2605(e); however, the Defendant did not cancel the Substitute Trustee Sale
until the loan servicer fully responds to the QWR as required under the statute and regulations.
31. As stated, Friday, April 26, 2024, the Plaintiff, through his attorney James Minerve, sent the
Defendant a QWR pursuant to RESPA, 12 USC §2605(e).
32. The QWR included a notice of error that 12 C.F.R 1024.35(b)(9) and (10) and 1024.35(e)(3)(i)(B)
PLAINTIFF PETITION DECLARATORY JUDGMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 3
and 12 CFR 1024.41(g) prohibited the loan servicer from foreclosing until the loan servicer
corrected the error and fully responded to the QWR.
33. Regulation X, 12 C.F.R 1024.35(b)(9) and (10) and 1024.35(e)(3)()(B) prohibit a loan servicer
from foreclosing on a borrower before fully responding to a QWR or correcting the errors
pointed out in the QWR relating to 12 CFR 1024.41(g).
34 The loan servicer has not responded to the Plaintiff's QWR. Therefore, May 7, 2024, scheduled
Substitute Trustee Sale of the property is unlawful.
35 Violation of RESPA, 12 USC § 2605(e) provides a private right of action for borrowers of
federally related loans. Henok v. Chase Home Finance, LLC, 915 F.Supp.2d 109 (D.D.C.2013)
(stating, “Mortgagor’s allegation that he sent letters to mortgagee and its foreclosure agent
requesting cure amount before the foreclosure on his property and that mortgagee and its agent
failed to respond to the letters stated a claim against mortgagee under RESPA for failure to respond
to borrower inquires, where mortgagor attached two letters addressed to mortgagee and agent which
included name of mortgagor, address of property, and directly requested amount to cure his
default.”).
36 Upon receipt of a valid QWR including a notice of error relating to 12 CFR 1024.41(g), 12 C.F.R
1024.35(b)(9) and (10) and 1024.35(e)(3)(i)(B) require a mortgagee and loan servicer to stop
the foreclosure process. Stroman v. Bank of America Corp., 852 F.Supp.2d 1366, (N.D.Ga. 2012)
(stating, “Mortgagor stated a claim for violation of RESPA, by alleging that loan servicers failed to
timely and properly acknowledge and respond to her qualified written requests (QWRs), some of
which she attached to her complaint as an exhibit, failed to take corrective action identified in the
QWRs, failed to provide her information requested in the QWRs, failed to cease their collection
efforts after receiving the QWRs, and provided erroneous information to credit bureaus related to
alleged overdue payments disputed in her QWRs, which damaged her credit score and reduced her
access to credit.”).
37. As stated above, the DOT is a federally related purchase money loan subject to federal
regulations (See Exhibit A, DOT, page 11, Section 16).
38. The damages the Plaintiff must plead under RESPA is met by including allegations in this petition
that allege the Plaintiff will suffer irreparable harm unless the foreclosure sale is postponed. Agustin
v. PNC Financial Services Group, Inc., 707 F.Supp.2d 1080 (D. Hawaii, 2010) (stating,
“Allegations that borrowers sent written requests to lender for information relating to home
PLAINTIFF PETITION DECLARATORY JUDGMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 4
refinancing loans, and that lender failed to take action with respect to these requests, causing them
actual damages, were sufficient to state a claim under Real Estate Settlement Procedures Act
(RESPA), even though borrowers did not plead pecuniary damages.”).
Conditions Precedent
39. Pursuant to Rule 54 of the Texas Rules of Civil Procedure, all conditions precedent have been
performed or have occurred.
Request for Temporary Restraining Orde
40 Plaintiff requests the Court to dispense with the issuance of a bond, and Plaintiff requests that the
Defendant be temporarily restrained, without hearing, and upon notice and hearing be temporarily
enjoined, pending further order of this Court, from foreclosing on the Deed of Trust.
41 Ifa temporary restraining order is not issued today, the Defendant will sell the Plaintiff s homestead
and the Plaintiff will be irreparably harmed as stated in the attached affidavit.
42 The Plaintiff is likely to succeed on the merits because, as stated above, the Plaintiff sent Defendant
a QWR, pursuant to RESPA, 12 USC § 2605(e); however, the Defendant did not cancel the
Substitute Trustee Sale until fully responding to the QWR as required under the statute and
regulations.
43 Granting the temporary restraining order is in the public interest, because enforcing contracts and
discouraging foreclosures are in the public interest.
44 The Defendant may simply foreclose in 30 days, or recoup whatever expenses incurred by not
foreclosing on the Plaintiff, which is permitted by the Deed of Trust; therefore, the potential harm
to the Defendant is outweighed by the potential irreparable harm to the Plaintiff.
Request for Temporary Orde
45, Plaintiff requests that the Court, after notice and a hearing, without the necessity of a bond and to
make temporary orders and issue any appropriate temporary injunctions deemed necessary and
equitable by the Court.
Attorney’s Fees
46. Under Section 37.009, Tex Civ. Prac. & Rem Code, MICHAEL GAUTREAU requests that the
Court award them costs and reasonable and necessary attorneys’ fees as equitable and just against
WELLS FARGO BANK, N.A..
PLAINTIFF PETITION DECLARATORY JUDGMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 5
Prayer
WHEREFORE, PREMISES CONSIDERED, the Plaintiff MICHAEL GAUTREAU prays for the
following:
47. Prayer for Declaratory Relief
48. WHEREFORE Plaintiff prays that after notice and hearing the Court declares the Substitute Trustee
Sale of the Property is unlawful and must be postponed until: (a) the loan servicer or the Defendant
fully responds to the Plaintiff's QWR; and (b) the loan servicer or the Defendant provides Plaintiff
with a rejection letter as required by the dual tracking provisions of Regulation X.
49, Prayer for Relief
WHEREFORE Plaintiff prays that the Court immediately grant a temporary restraining order
restraining Defendant, in conformity with the allegations of this Plaintiff, from the acts set forth
above, and Plaintiff prays that, after notice and hearing, this temporary restraining order be made a
temporary injunction.
1 Plaintiff prays that the Court, in addition to the temporary restraining orders and temporary
injunction order prayed for above, after notice and hearing, grant a temporary injunction
enjoining Defendant, in conformity with the allegations of this Petition from the acts set forth
above while this case is pending, and enter temporary orders as requested above.
Plaintiff prays for expenses, costs and interest as allowed by law.
Plaintiff prays for general relief.
Respectfully submitted,
/s/ James Minerve
James Minerve
State Bar No. 24008692
13276 N HWY 183, ste. 209
Austin, Texas 78750
(888) 819-1440 (Office)
(210) 336-5867 (Mobile)
(888) 230-6397 (Fax)
jgm@minervelaw.com
Attorney for Plaintiff
MICHAEL GAUTREAU
PLAINTIFF PETITION DECLARATORY JUDGMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 6
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the above and foregoing document was sent to
the following in accordance with the Texas Rules of Civil Procedure on this 28" day of April 2024:
Service Company, registered agent for
WELLS FARGO BANK, N.A.
3930 FORT BEND Parkway, Plano, Texas 75093
/s/ James Minerve
James Minerve
PLAINTIFF PETITION DECLARATORY JUDGMENT
AND FOR TRO AND INJUNCTIVE RELIEF Page 7
GENERAL AFFIDAVIT
State of Texas §
County of poyT weep §
BEFORE ME, the undersigned Notary, RASH DA )nceui4iion this 297day of April 2024
personally appeared Michael Gautreau, known to me to be a credible person of lawful age, who being
by me first duly swom, on his oath, deposes and says:
1 Lam of sound mind and capable of making this affidavit. 1 have personal knowledge of
the facts stated below. I understand that I can be held criminally responsible if I lie in
this statement. This statement is true.
The May 7, 2024, scheduled substitute trustee sale of the Property (the “Substitute
Trustee Sale”) is unlawful because I, through my attorney James Minerve, sent the
Defendant a Qualified Written Request (“QWR”), pursuant to RESPA, 12 USC
§2605(e); however, the Defendant did not cancel the Substitute Trustee Sale until the
loan servicer fully responds to the QWR as required under 12 C.F.R 1024.35(b)(9) and
(10) and 1024.35(e)(3)(i)(B). Furthermore, the Defendant violated
the Dual Tracking
Provisions of Regulation X (RESPA) 12 CFR 1024.41(g).
Tam the ovmer ofthe property located at jiiaimaiantiiiiimetiemenintiomn
Mees (“Homestead” or “Property” or “real property”). I reside at this address, which is
my homestead.
February 29, 2016, I closed on a federally related purchase money loan for $160,050.00,
secured by a Deed of Trust (DOT). See Exhibit A
WELLS FARGO BANK, N.A. is the original lender/mortgagee.
The original trustee is Robert K. Fowler.
WELLS FARGO BANK, N.A. is the current lendet/mortgagee.
Wells Fargo Home Mortgage is the current loan servicer.
9. Attorneys of Abertelli Law, are designated as the purported current trustee.
10, According to a recent Broker’s Price Opinion, the value of the property is $295,000.
11. The monthly mortgage is $1,558.46.
12. The approximate arrears is $25,000.
Page 1 of 3
GENERAL AFFIDAVIT continued
13. The approximate payoff is $141,000.
14. I have approximately $154,000 of equity in the Property.
15. Recently, the purported current trustee posted a Substitute Trustee Sale Notice in the
FORT BEND County Clerk’s Office.
16. I have been preapproved for a refinance loan that will close within 30 days and pay off
the Defendant in full, provided the May 7, 2024, scheduled substitute trustee sale is
cancelled.
17. 1 have never filed bankruptcy or applied for a TRO to stop a foreclosure.
18 Friday, April 26, 2024, I through my attomey James Minerve, sent the Defendant a QWR
pursuant to RESPA, 12 USC 2605(e). See Exhibit C and D
19 The QWR included a notice of error that 12 C.F.R. 1024.41(g) prohibited the loan
servicer from foreclosing. See Exhibit E
20. Regulation X, (b)(9) and (10) and 12 C.F.R. 1024.35(e)(3)(i)(B) prohibit a loan servicer
from foreclosing on a borrower before fully responding to a QWR or correcting the errors
pointed out in the QWR relating to 12 C.F.R. 1024.41(g). See Exhibit F
21 Neither the Defendant nor the Current Loan Servicer have responded to my QWR.
Therefore, May 7, 2024, scheduled Substitute Trustee Sale of the property is unlawful.
22. If the foreclosure is not postponed until the loan servicer responds to the QWR, I will
suffer irreparable harm by losing title to my homestead and approximately $154,000, of
equity in the Property.
23. In February 2024, I submitted a completed loss mitigation application to the loan
servicer. On that date I submitted all required completed loss mitigation forms, signed
and dated, and submitted all required supporting documents, as specified on the loan
servicer’s Website.
24 To date none of the representatives of the loan servicer have sent me a rejection letter
denying the loss mitigation application and explaining that I am ineligible for any loss
mitigation relief, and the appeal process has been exhausted or is inapplicable, as
required by 12 C_F.R 1024.41(g).
Page
2 of 3
GENERAL AFFIDAVIT CONTINUED
Michael Gautreau
7330 Jacobs Well Drive
Richmond, Texas 77407
State of Texas
Countyof Fort GENDS§
Sworn to and subscribed before me on the 29% day of yr 2024, by Michael Gautreau.
Notary Publid, State of T ‘xas
fF mer rerearsomermn
ime My Commission Expires: — 2] 20}rone
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Page 3 of 3
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2016021911 LES fra, Pecheaal
ELECTRONICALLY RECORDED Laura Richard, County Clerk
Official Public Records Fort Bend County Texas
(C iff
3/3/2016 2:37 PM Pages: 21 Fee: $91.00
7
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electronically recorded,
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Return To: Wells wadnas
FINAL DOCS sonia
6200 PARK AVE
DES MOINES, IA 50321 reCF om
(YSAv
Prepared By: Serena Harris
800 WALNUT ST
8TH FLOOR
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DES MOINES, IA 50309-: “as
7 Sedo [rust
S
NOTICE OF CONFIDENTIALITY RIG YOU ARE A NATURAL PERSON, YOU
MAY REMOVE OR STRIKE ANY O: ort THE POLLOWING INFORMATION
FROM ANY INSTRUMENT THAT T IN REAL PROPERTY
BEFORE IT IS FILED FOR RECORD IN me Ts ‘CORDS: YOUR SOCIAL
SECURITY NUMBER OR YOUR DRIVER'SEI Ss) ER.
Definitions. Words used in multiple sections of this
Sections3, 11,
Section 16.
13, 18, 20 and21. Certain
rules regarding outofoywsined below and other words are defined in.
used in this document
are also provided in
(A) “Security Instrument” means this document, which is 2016, together
with all Ridersto this
document.
(B) “Borrower a single person. Bi eines this Security Instrument.
(C) “Lender”is Wel B Lender
is a corporatic Vand Sxisting under the laws of United
States of Am« 8 is 101 epson tear
Sic meeor 104. Lender is the beneficiary
under this Security Instrument.
@) “Trustee” is Robert K. Fowler. Trustee's address is 10333 Richm« ca TX 77042.
(E) “Note” means the promissory note signed by Borrower and eae fs sloth states that
Borrower owes Lender one hundred sixty thousand fifty and 00/100 Dollars lus interest.
Borrower has promised to pay this debt in regular Periodic Payments and eae
March 1, 2046.
(®) “Property” means the property that is described below under the heading ofeee
Ridh in the Property."
(G) “Loan” means the debt evidenced by the Note, plus interest, any prepayment chan charges due
under the Note, and all sums due under this Security Instrument, plus interest.
fee
4ulouzizil rage 24 orél
oN
(C Ce
ws “?
@) onion
lm “a Security lustrument that are executed by Borrower. The following Riders are
se
to be a eneak Doea
as
o Adjustable ndominium Rider O Second Home Rider
OC BalloonRi lanned Unit Development Rider 1 1-4 Family Rider
O VA Rider Biweekly Payment Rider Other(s) [specify]
(® “Applicable ware applicable federal, state and local statutes, ions, ordinances and
administrative rules and a effect of law) as well as all applicable final, non-appealable judicial
opinions. hatha
r
() “Community Associatio isments”
means all dues, fees, assessments and other charges
that are imposed
on Borrow condominium association, homeowners association or similar
organization.
(KX) “Electronic Funds Transfer”mLon hey of funds, other than a transaction originated by check, draft,
or similar paper instrument, which ci rou han electronic terminal, telephonic instrument, computer, or
magnetic tape so as to order, instruct, @1 hort institution to debit or credit an account. Such term.
includes, but is not limited to, point-o: ors, teller machine transactions, transfers initiated by
telephone, wire transfers, and autom: ted earinghopst
(L) “Escrow Items” means those items th in Section3
(M) “Miscellaneous Proceeds” means any settle award of damages, or proceeds paid by any
third party (otherthan insurance proceeds pai der the cov; ribed in Section, 5) for: (i) damage to, or
destruction of, the Property; (ii) condemnation or other ofajl or part of the Property; (iii) conveyance in
lieu of condemnation; or (iv) misrepresentations of, or pthissic to, the value and/or condition of the Property.
(N) “Mortgage Insurance” means insurance prot iB ‘the nonpayment of, or default on, the Loan.
(O) “Periodic Payment” means the regularly sched ount dye ‘for~ principal and interest under the Note,
plus (ii) any amounts under Section 3 of this Security
@®) “RESPA” means the Real Estate Settlement Procedures (l 3 Section 2601 et seq.)and its
implementing regulation, Regulation X (12 CFR. Part 1024)/as it be amended from time to time,
any additional or successor legislation or regulation that ‘subject matter. As used
in this Security
Instrument, RESPA refers to all requirements and restrictions reeinsicn a "federally related
mortgage loan" even if the Loan does not qualify as a "federal oan" under RESPA.
(Q) “Successor in Interest of Borrower” means any party that has
party has assumed Borrower's obligations under the Note and/or
Transfer of Rights in the Property. This Instrument py 9
and all renewals, extensions and modifications of the Note; and (ii) the performatice of 3:
ss fsa
ie tb Property, whether or not that
magento,
wer's covenants
agreements under this Security Instrument and the Note. For this purpose, grants and conveys
to Trustee, in trust, with power of sale, the following described property lo ype of Recording
Sf FY
WY
‘TEXAS-Single Family-Fannie MaefFteddie Mac UNIFORM INSTRUMENT FORM 3044 1/01
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‘Woiters Kluwer Financial Services ‘2016022515 :3.0,5355-J20151050Y Page 20f 17
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Dancin) 0: hu eh ording Jurisdiction] Legal Description is attached here to as Exhibit A and
made part a obaan ageAe
Parcel ID Number:
‘Texas 77407 [Zip aM fl46979, Whi
(Property Aa fess\!):
has the address of 7330 Jacobs Well DR [Street] RICHMOND [City],
TOGETHER WITH all: ¢ ipsproyein
a or hereafter erected on the property, and all easements, appurtenances,
and fixtures now or hi 4 e property. All replacements and additions shall also be covered by this
Security Instrument. All of the fopetging tereferred to in this Security Instrument as the "Property."
BORROWER COVEN: rr lawfully seised of the estate hereby conveyed and has the right
to grant and convey the Property; dthat is unencumbered, except for encumbrances of record.
Borrower warrants and will defend gen Hy heti tt} the Property against all claims and demands, subject
to any
encumbrances of record.
THIS SECURITY INSTRUMENT Comb; upiform covenants for national use and non-uniform covenants with
limited variations by jurisdiction to co; security instrument covering real property.
Uniform Covenants. Borrower and agree as follows:
4. Payment of Principal, Interest, E: MS, ep ent Charges, and Late Charges. Borrower
shall pay when due the principal of, and int énced
by the Note and any prepayment charges and
late charges due under the Note. Borrower und ‘for Escrow Items pursuantto Section 3. Payments due
under the Note and this Security Instrument sl n. U.S. currency. However, if any check or other instrument
received by Lender as payment under the Note og’th is retumedto Lender unpaid, Lender may
require that any or all subsequent payments due ukdef the Note urity Instrument
be made in one or more
of the following forms, as selected by Lender: (a) cash; (b) m order; certified check, bank check, treasurer's
check or cashier's check, provided such check is drawn ion whose deposits are insured by a federal
agency, instrumentality, or entity; or (d) Electronic Fun Aransfef.
Payments are deemed received by Lender when receiv th losetfon
in the Note or at such other location
as may be designated by Lender in accordance with the notice provisipris in Section 15. Lender may return any
payment or partial payment if the payment or partial paym: cient to bring the Loan current. Lender may
accept any payment or partial payment insufficient to bring the ut waiver of any rights hereunder
or prejudice to its rights to refuse such payment or partial paym« but Lender is not obligated to apply
such payments at the time such payments are accepted. If each P is applied as of its scheduled due
date, then Lender need not pay interest on unapplied funds. Lendé may ho! ied funds until] Borrower
sakes payment to bring the Loan current.
If Borrower does not do'sq.withisr 4 le period of time, Lender shall
either apply such funds or return them to Borrower. If not applied earlier, be appliedto the outstanding
principal balance under the Note immediately prior to foreclosure. No 6 vino! Which Borrower might have now
or in the future against Lender shall relieve Borrower from making du a inder,
Instrument or performing the covenants and agreements secured
by this ecu
ss
2. Application of Payments or Proceeds. Except as otherwise descetbad i Lon, 2, all payments accep' ted.
and applied by Lender shall be applied
in the following order
of priority: (a) i the Note; (b) principal
due under the Note; (c) amounts due under Section 3. Such payments shall be ri Payment in
eo
‘TEXAS-Single Family-Fannie Mac/Freddie Mac UNIFORM INSTRUMENT Jf FORM 3044 1/01
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i
the orderin which i
amounts due under
a)
this Se
e du4 amounts shall be applied first to late charges, second
and then to reduce the principal balance of the Note.
to any other
If Lender receives & ent tom for a delinquent Periodic Payment which includes a sufficient amount
to pay any late due,the tqaaysbe applied to the delinquent payment and the late charge. If more than
one Periodic Payment
Periodic Payments if, ue may apply any payment received from Borrower to the repayment of the
at, each payment can be paid in full. To the extent that any excess exists after
the payment is applied to’the,
charges due. Voluntary mvt of one or more Periodic Payments, such excess may be applied to any late
applied first to any prepayment charges and then as described in the Note.
Any application of payments; insdran or,Miscellaneous Proceeds to principal due under the Note shall not
extend or postpone the due date, ¢h amptint, of the Periodic Payments.
3. Funds for Escrow Items. Lender on the day Periodic Payments are due under the Note,
until the Note is paid in full, a sunt th provide for payment of amounts due for: (a) taxes and assessments
pads")
and other items which can attain priority’ov Instrument as a lien or encumbrance on the Property; (b)
leasehold payments or ground rents the (c) premiums for any and all insurance required by Lender
under Section 5; and (d) Mortgage In: any, or any sums payable
by Borrower to Lender
in lieu
ants:
of the payment of Mortgage Insurance ith the provisions
of Section 10. These items are
called "Escrow Items." At origination or at sf in he tebm of the Loan, Lender may require that Community
Association Dues, Fees, and Assessments, Borrower, and such dues, fees and assessments shall
be an Escrow Item. Borrower shall promptly all notices of amountsto be paid under this Section.
Borrower shall pay Lender the Funds for s Lender waives Borrower's obligation to pay the Funds
for any or all Escrow Items. Lender may waive Borrower's obligati ‘to,pay to Lender Funds for any or all Escrow
Items at any time. Any such waiver may only be tr'writing. In the’event such waiver, Borrower shall pay directly,
when and where payable, the amounts due for any Escrow Itestis for, gh hypayment of Funds has been waived by
Lender and, if Lender requires, shall furnish to Lender receipts eyid font ing h payment within such time period as
Lender may require. Borrower's obligation to make suck’p d to provide receipts shall for all purposes be
deemed to be a covenant and agreement contained in this Secy fient, as the phrase "covenant and agreement"
is used in Section 9. If Borrower is obligated to pay J Ttems dirgetly, pursuant to a waiver, and Borrower fails
to pay the amount due for an Escrow Item, Lender may exerci
Borrower shall then be obligated under Section 9 to repay to
as to any or all Escrow Items at any time by a notice given in
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jount. Lender may revoke the waiver
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Borrower shall pay to Lender all Funds, and in such amounts, arp thd Renae Section 3.
Lender may, at any time, collect and hold Funds in an amount (a) it Lenderto apply the Funds at the
time specified under RESPA, and (b) not to exceed the maximum atttowSt # lender require under RESPA. Lender
shall estimate the amount of Funds due on the basis of currentdata and esfimates
of expenditures of future
Escrow Items or otherwise in accordance with Applicable Law.
The Funds shall be held in an institution whose deposits are insured by atfederal ag
VA, entality, or entity
(including Lender, if Lender is an institution whose deposits are so ins! Home Loan Bank.
Lender shall apply the Funds to pay the Escrow Items no later than the time spe€ifie, SPA. Lender shall not
charge Borrower for holding and applying the Funds, annually analyzing the verifying the Escrow
tems, unless Lender pays Borrower interest on the Funds and Applicable La
Unless an agreement is made in writing or Applicable Law requires interestto se make such a charge.
Fuids, Lender shall
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7. Preservation,
sete nanceat otection of the Property; Inspections. Borrower shall not destroy,
ey
damage or impair the Proy perty to deteriorate or commit waste on the Property. Whether
or not
Borrower is residing in. wer shall maintain the in order to prevent the Property from
deteriorating or d its condition. Unless it is determined pursuant to Section 5 that repair or
restoration is not econo: ym
per cole wer shall promptly repair the Property if damaged to avoid further
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deterioration or damage. nntlemnation proceeds are paid in connection with damage to, or the taking
of, the Property, Borrower ibl for repairing or restoring the Property only if Lender has released
proceeds for such purposes. for the repairs and restoration in a single payment or ina
series of progress payments as is the insurance or condemnation proceeds are not sufficient to
repair or restore the Property, B ne ofee of Borrower's obligation for the completion of such repair or
restoration. ee *
Lender or its agent may make reasonaple. inspections of the Property.If it has reasonable cause,
Lender may inspect the interior of the Property. Lender shall give Borrower notice at the time of
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or prior to such an interior inspection cause.
8. Borrower's Loan Application. indefa if, during the Loan application process, Borrower
or any persons or entities acting at the dir ne with Borrower's knowledge or consent gave materially
repre
false, misleading, or inaccurate informati OD. ler (or failed to provide Lender with material
information) in connection with the Loan. tations in; de, but are not limited to, representations
concerning Borrower's occupancy of the Proj orrower's prj residence.
9. Protection of Lender's Interest in the Property and ightsU der this Security Instrument. If (a)
Borrower fails to the covenants and agreements
confa ed.ih this Jec Instrument, (b) there is a legal
proceeding that might significantly affect Lender's inter id/or rights under this Security Instrument
(such asa proceeding in bankruptcy, probate, for condei ion or £6 eit , for enforcement of a lien which may
attain priority over this Security Instrument or to enforce’ SO ions), or (c) Borrower has abandoned the
Property, then Lender may do and pay for whatever is le o1 opsjate to protect Lender's interest in the
Property and rights under this Security Instrument, including protectin assessing the value of the Property,
and securing and/or repairing the Property. Lender's actions can in not limited to: (a) paying any sums
secured by a lien which has priority over this Security nstrumeny 1p in court; and (©). paying reasonable
attorneys’ fees to protect its interest in the Property and/or rights Instrument, including its secured
position in a bankruptcy proceeding. Securing the Property includ limited to, entering the Property to
tnake repairs, change locks, replace or board up doors and windows, drain from pipes, eliminate building or
other code violations or dangerous conditions, and have utilities
Preview
CAUSE NO. Michael Gautreau, § IN THE DISTRICT COURT OF Plaintiffis), Vv. FORT BEND COUNTY, TEXAS WELLS FARGO BANK, N.A., Defendant(s), § JUDICIAL DISTRICT PLAINTIFF’S ORIGINAL PETITION FOR DECLARATORY JUDGMENT AND APPLI CATION — FOR TEMPORA RY RESTRAIN ING ORDER VIRDER AND AND INJUNCTI VE ——— SSH EAE INJUNCIIV E RELIEF RELTER TO THE HONORABLE JUDGE OF THE COURT: NOW COMES MICHAEL GAUTREAU, the Plaintiff, complaining of Defendant WELLS FARGO BANK, N.A. and would show the Court the following: Discovery Control Plan 1. MICHAEL GAUTREAU proposes that the discovery in this case be conducted under Discovery Control Plan Level 2. Tex. R. Civ. P. 190.3 Parties MICHAEL GAUTREAU is a natural person whose homestead is in FORT BEND County Texas. Defendant, WELLS FARGO BANK, N.A. is a national banking company and may be served with process by and through its registered agent, Registered Agent Solutions, Inc., at 211 E. 7" St. Suite 620, Austin, Texas 78744. Venue and Jurisdiction This Court has jurisdiction over the subject matter of this case, because the amount in controversy exceeds this Court’s minimum jurisdictional requirements. The Court has personal jurisdiction over the Defendant under Sec. 17.003 of the Texas Civil Practices and Remedies Code, because the real property, the subject of this lawsuit, is located in Texas. The venue in FORT BEND County, Texas is proper in this cause under Section 15.011 of the Texas Civil Practice and Remedies Code because the real property, the subject of this lawsuit, is situated in FORT BEND County, Texas. PLAINTIFF PETITION DECLARATORY JUDGMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 1 ROUTED TO COURT RT'D TOD. CLERK 5/3/24 AS Brief Summary 7. The May 7, 2024, scheduled substitute trustee sale of the Property (the “Substitute Trustee Sale”) is unlawful because the Plaintiff, through his attorney James Minerve, sent the Defendant a Qualified Written Request (“QWR”), pursuant to RESPA, 12 USC §2605(e); however, the Defendant did not cancel the Substitute Trustee Sale until the loan servicer fully responds to the QWR as required under 12 C.F.R 1024.35(b)(9) and (10) and 1024.35(¢)(3)(i)(B). Furthermore, the Defendant violated the Dual Tracking Provisions of Regulation X (RESPA) 12 CFR 1024.41(g). Factual round The Property The Plaintiff is the owner of the property located at flee tie (““Homestead” or “Property” or “real property”). The Plaintiff resides at this address, which is his homestead. Deed of Trust. February 29, 2016, The Plaintiff closed on a federally related purchase money loan for $160,050.00, secured by a Deed of Trust (DOT). See Exhibit A 10. WELLS FARGO BANK, N.A. is the original lender/mortgagee. 11. The original trustee is Robert K. Fowler. 12, WELLS FARGO BANK, N.A. is the current lender/mortgagee. 13. Wells Fargo Home Mortgage is the current loan servicer. 14. Attorneys of Abertelli Law, are designated as the purported current trustee. 15. According to a recent Broker’s Price Opinion, the value of the property is $295,000. 16. The monthly mortgage is $1,558.46. 17. The approximate arrears is $25,000. 18. The approximate payoff is $141,000. 19. The Plaintiff has approximately $154,000 of equity in the Property. 20. Recently, the purported current trustee posted a Substitute Trustee Sale Notice in the FORT BEND County Clerk’s Office. 21. The Plaintiff has been preapproved for a refinance loan that will close within 30 days and pay off the Defendant in full, provided the May 7, 2024, scheduled substitute trustee sale is cancelled. 22. The Plaintiff has never filed bankruptcy or applied for a TRO to stop a foreclosure. PLAINTIFF PETITION DECLARATORY JUDGMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 2 Qualified Written Request re: Notice of Error Prohibiting Foreclosure 23. Friday, April 26, 2024, The Plaintiff through his attorney James Minerve, sent the Defendant a QWR pursuant to RESPA, 12 USC 2605(e). See Exhibit B and C 24, The QWR included a notice of error that 12 C.F.R. 1024.41(g) prohibited the loan servicer from foreclosing. See Exhibit D 25. Regulation X, (b)(9) and (10) and 12 C.F.R. 1024.35(e)(3)(i)(B) prohibit a loan servicer from foreclosing on a borrower before fully responding to a QWR or correcting the errors pointed out in the QWR relating to 12 C.F.R. 1024.41(g). See Exhibit E 26. Neither the Defendant nor the Current Loan Servicer have responded to the Plaintiff's QWR. Therefore, May 7, 2024, scheduled Substitute Trustee Sale of the property is unlawful. 27. If the foreclosure is not postponed until the loan servicer responds to the QWR, the Plaintiff will suffer irreparable harm by losing title to his homestead and approximately $2,970,000, of equity in the Property. Loss Mitigation Application 28. In February 2024, the Plaintiff submitted a completed loss mitigation application to the loan servicer. On that date the Plaintiff submitted all required completed loss mitigation forms, signed and dated, and submitted all required supporting documents, as specified on the loan servicer’s Website. 29. To date none of the representatives of the loan servicer have sent the Plaintiff a rejection letter denying the loss mitigation application and explaining that the Plaintiff is ineligible for any loss mitigation relief, and the appeal process has been exhausted or is inapplicable, as required by 12 C.F.R 1024.41(g). Arguments Violation of Dual Tracking Provisions of Regulation X, 12 C.F.R 1024.35(b)(9) and (10) and 1024.35(e)(3)(i)(B) and 12 CFR 1024.41(g) 30. The Substitute Trustee Sale is unlawful because the Plaintiff sent the Defendant a QWR, pursuant to RESPA, 12 USC § 2605(e); however, the Defendant did not cancel the Substitute Trustee Sale until the loan servicer fully responds to the QWR as required under the statute and regulations. 31. As stated, Friday, April 26, 2024, the Plaintiff, through his attorney James Minerve, sent the Defendant a QWR pursuant to RESPA, 12 USC §2605(e). 32. The QWR included a notice of error that 12 C.F.R 1024.35(b)(9) and (10) and 1024.35(e)(3)(i)(B) PLAINTIFF PETITION DECLARATORY JUDGMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 3 and 12 CFR 1024.41(g) prohibited the loan servicer from foreclosing until the loan servicer corrected the error and fully responded to the QWR. 33. Regulation X, 12 C.F.R 1024.35(b)(9) and (10) and 1024.35(e)(3)()(B) prohibit a loan servicer from foreclosing on a borrower before fully responding to a QWR or correcting the errors pointed out in the QWR relating to 12 CFR 1024.41(g). 34 The loan servicer has not responded to the Plaintiff's QWR. Therefore, May 7, 2024, scheduled Substitute Trustee Sale of the property is unlawful. 35 Violation of RESPA, 12 USC § 2605(e) provides a private right of action for borrowers of federally related loans. Henok v. Chase Home Finance, LLC, 915 F.Supp.2d 109 (D.D.C.2013) (stating, “Mortgagor’s allegation that he sent letters to mortgagee and its foreclosure agent requesting cure amount before the foreclosure on his property and that mortgagee and its agent failed to respond to the letters stated a claim against mortgagee under RESPA for failure to respond to borrower inquires, where mortgagor attached two letters addressed to mortgagee and agent which included name of mortgagor, address of property, and directly requested amount to cure his default.”). 36 Upon receipt of a valid QWR including a notice of error relating to 12 CFR 1024.41(g), 12 C.F.R 1024.35(b)(9) and (10) and 1024.35(e)(3)(i)(B) require a mortgagee and loan servicer to stop the foreclosure process. Stroman v. Bank of America Corp., 852 F.Supp.2d 1366, (N.D.Ga. 2012) (stating, “Mortgagor stated a claim for violation of RESPA, by alleging that loan servicers failed to timely and properly acknowledge and respond to her qualified written requests (QWRs), some of which she attached to her complaint as an exhibit, failed to take corrective action identified in the QWRs, failed to provide her information requested in the QWRs, failed to cease their collection efforts after receiving the QWRs, and provided erroneous information to credit bureaus related to alleged overdue payments disputed in her QWRs, which damaged her credit score and reduced her access to credit.”). 37. As stated above, the DOT is a federally related purchase money loan subject to federal regulations (See Exhibit A, DOT, page 11, Section 16). 38. The damages the Plaintiff must plead under RESPA is met by including allegations in this petition that allege the Plaintiff will suffer irreparable harm unless the foreclosure sale is postponed. Agustin v. PNC Financial Services Group, Inc., 707 F.Supp.2d 1080 (D. Hawaii, 2010) (stating, “Allegations that borrowers sent written requests to lender for information relating to home PLAINTIFF PETITION DECLARATORY JUDGMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 4 refinancing loans, and that lender failed to take action with respect to these requests, causing them actual damages, were sufficient to state a claim under Real Estate Settlement Procedures Act (RESPA), even though borrowers did not plead pecuniary damages.”). Conditions Precedent 39. Pursuant to Rule 54 of the Texas Rules of Civil Procedure, all conditions precedent have been performed or have occurred. Request for Temporary Restraining Orde 40 Plaintiff requests the Court to dispense with the issuance of a bond, and Plaintiff requests that the Defendant be temporarily restrained, without hearing, and upon notice and hearing be temporarily enjoined, pending further order of this Court, from foreclosing on the Deed of Trust. 41 Ifa temporary restraining order is not issued today, the Defendant will sell the Plaintiff s homestead and the Plaintiff will be irreparably harmed as stated in the attached affidavit. 42 The Plaintiff is likely to succeed on the merits because, as stated above, the Plaintiff sent Defendant a QWR, pursuant to RESPA, 12 USC § 2605(e); however, the Defendant did not cancel the Substitute Trustee Sale until fully responding to the QWR as required under the statute and regulations. 43 Granting the temporary restraining order is in the public interest, because enforcing contracts and discouraging foreclosures are in the public interest. 44 The Defendant may simply foreclose in 30 days, or recoup whatever expenses incurred by not foreclosing on the Plaintiff, which is permitted by the Deed of Trust; therefore, the potential harm to the Defendant is outweighed by the potential irreparable harm to the Plaintiff. Request for Temporary Orde 45, Plaintiff requests that the Court, after notice and a hearing, without the necessity of a bond and to make temporary orders and issue any appropriate temporary injunctions deemed necessary and equitable by the Court. Attorney’s Fees 46. Under Section 37.009, Tex Civ. Prac. & Rem Code, MICHAEL GAUTREAU requests that the Court award them costs and reasonable and necessary attorneys’ fees as equitable and just against WELLS FARGO BANK, N.A.. PLAINTIFF PETITION DECLARATORY JUDGMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 5 Prayer WHEREFORE, PREMISES CONSIDERED, the Plaintiff MICHAEL GAUTREAU prays for the following: 47. Prayer for Declaratory Relief 48. WHEREFORE Plaintiff prays that after notice and hearing the Court declares the Substitute Trustee Sale of the Property is unlawful and must be postponed until: (a) the loan servicer or the Defendant fully responds to the Plaintiff's QWR; and (b) the loan servicer or the Defendant provides Plaintiff with a rejection letter as required by the dual tracking provisions of Regulation X. 49, Prayer for Relief WHEREFORE Plaintiff prays that the Court immediately grant a temporary restraining order restraining Defendant, in conformity with the allegations of this Plaintiff, from the acts set forth above, and Plaintiff prays that, after notice and hearing, this temporary restraining order be made a temporary injunction. 1 Plaintiff prays that the Court, in addition to the temporary restraining orders and temporary injunction order prayed for above, after notice and hearing, grant a temporary injunction enjoining Defendant, in conformity with the allegations of this Petition from the acts set forth above while this case is pending, and enter temporary orders as requested above. Plaintiff prays for expenses, costs and interest as allowed by law. Plaintiff prays for general relief. Respectfully submitted, /s/ James Minerve James Minerve State Bar No. 24008692 13276 N HWY 183, ste. 209 Austin, Texas 78750 (888) 819-1440 (Office) (210) 336-5867 (Mobile) (888) 230-6397 (Fax) jgm@minervelaw.com Attorney for Plaintiff MICHAEL GAUTREAU PLAINTIFF PETITION DECLARATORY JUDGMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 6 CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the above and foregoing document was sent to the following in accordance with the Texas Rules of Civil Procedure on this 28" day of April 2024: Service Company, registered agent for WELLS FARGO BANK, N.A. 3930 FORT BEND Parkway, Plano, Texas 75093 /s/ James Minerve James Minerve PLAINTIFF PETITION DECLARATORY JUDGMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 7 GENERAL AFFIDAVIT State of Texas § County of poyT weep § BEFORE ME, the undersigned Notary, RASH DA )nceui4iion this 297day of April 2024 personally appeared Michael Gautreau, known to me to be a credible person of lawful age, who being by me first duly swom, on his oath, deposes and says: 1 Lam of sound mind and capable of making this affidavit. 1 have personal knowledge of the facts stated below. I understand that I can be held criminally responsible if I lie in this statement. This statement is true. The May 7, 2024, scheduled substitute trustee sale of the Property (the “Substitute Trustee Sale”) is unlawful because I, through my attorney James Minerve, sent the Defendant a Qualified Written Request (“QWR”), pursuant to RESPA, 12 USC §2605(e); however, the Defendant did not cancel the Substitute Trustee Sale until the loan servicer fully responds to the QWR as required under 12 C.F.R 1024.35(b)(9) and (10) and 1024.35(e)(3)(i)(B). Furthermore, the Defendant violated the Dual Tracking Provisions of Regulation X (RESPA) 12 CFR 1024.41(g). Tam the ovmer ofthe property located at jiiaimaiantiiiiimetiemenintiomn Mees (“Homestead” or “Property” or “real property”). I reside at this address, which is my homestead. February 29, 2016, I closed on a federally related purchase money loan for $160,050.00, secured by a Deed of Trust (DOT). See Exhibit A WELLS FARGO BANK, N.A. is the original lender/mortgagee. The original trustee is Robert K. Fowler. WELLS FARGO BANK, N.A. is the current lendet/mortgagee. Wells Fargo Home Mortgage is the current loan servicer. 9. Attorneys of Abertelli Law, are designated as the purported current trustee. 10, According to a recent Broker’s Price Opinion, the value of the property is $295,000. 11. The monthly mortgage is $1,558.46. 12. The approximate arrears is $25,000. Page 1 of 3 GENERAL AFFIDAVIT continued 13. The approximate payoff is $141,000. 14. I have approximately $154,000 of equity in the Property. 15. Recently, the purported current trustee posted a Substitute Trustee Sale Notice in the FORT BEND County Clerk’s Office. 16. I have been preapproved for a refinance loan that will close within 30 days and pay off the Defendant in full, provided the May 7, 2024, scheduled substitute trustee sale is cancelled. 17. 1 have never filed bankruptcy or applied for a TRO to stop a foreclosure. 18 Friday, April 26, 2024, I through my attomey James Minerve, sent the Defendant a QWR pursuant to RESPA, 12 USC 2605(e). See Exhibit C and D 19 The QWR included a notice of error that 12 C.F.R. 1024.41(g) prohibited the loan servicer from foreclosing. See Exhibit E 20. Regulation X, (b)(9) and (10) and 12 C.F.R. 1024.35(e)(3)(i)(B) prohibit a loan servicer from foreclosing on a borrower before fully responding to a QWR or correcting the errors pointed out in the QWR relating to 12 C.F.R. 1024.41(g). See Exhibit F 21 Neither the Defendant nor the Current Loan Servicer have responded to my QWR. Therefore, May 7, 2024, scheduled Substitute Trustee Sale of the property is unlawful. 22. If the foreclosure is not postponed until the loan servicer responds to the QWR, I will suffer irreparable harm by losing title to my homestead and approximately $154,000, of equity in the Property. 23. In February 2024, I submitted a completed loss mitigation application to the loan servicer. On that date I submitted all required completed loss mitigation forms, signed and dated, and submitted all required supporting documents, as specified on the loan servicer’s Website. 24 To date none of the representatives of the loan servicer have sent me a rejection letter denying the loss mitigation application and explaining that I am ineligible for any loss mitigation relief, and the appeal process has been exhausted or is inapplicable, as required by 12 C_F.R 1024.41(g). Page 2 of 3 GENERAL AFFIDAVIT CONTINUED Michael Gautreau 7330 Jacobs Well Drive Richmond, Texas 77407 State of Texas Countyof Fort GENDS§ Sworn to and subscribed before me on the 29% day of yr 2024, by Michael Gautreau. Notary Publid, State of T ‘xas fF mer rerearsomermn ime My Commission Expires: — 2] 20}rone G Bia vere U6: tet | Page 3 of 3 we* 2016021911 LES fra, Pecheaal ELECTRONICALLY RECORDED Laura Richard, County Clerk Official Public Records Fort Bend County Texas (C iff 3/3/2016 2:37 PM Pages: 21 Fee: $91.00 7 Re “ O). Ca italTit Tile ‘Menlo has been electronically recorded, of Ne ger. Return To: Wells wadnas FINAL DOCS sonia 6200 PARK AVE DES MOINES, IA 50321 reCF om (YSAv Prepared By: Serena Harris 800 WALNUT ST 8TH FLOOR ve DES MOINES, IA 50309-: “as 7 Sedo [rust S NOTICE OF CONFIDENTIALITY RIG YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY O: ort THE POLLOWING INFORMATION FROM ANY INSTRUMENT THAT T IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN me Ts ‘CORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'SEI Ss) ER. Definitions. Words used in multiple sections of this Sections3, 11, Section 16. 13, 18, 20 and21. Certain rules regarding outofoywsined below and other words are defined in. used in this document are also provided in (A) “Security Instrument” means this document, which is 2016, together with all Ridersto this document. (B) “Borrower a single person. Bi eines this Security Instrument. (C) “Lender”is Wel B Lender is a corporatic Vand Sxisting under the laws of United States of Am« 8 is 101 epson tear Sic meeor 104. Lender is the beneficiary under this Security Instrument. @) “Trustee” is Robert K. Fowler. Trustee's address is 10333 Richm« ca TX 77042. (E) “Note” means the promissory note signed by Borrower and eae fs sloth states that Borrower owes Lender one hundred sixty thousand fifty and 00/100 Dollars lus interest. Borrower has promised to pay this debt in regular Periodic Payments and eae March 1, 2046. (®) “Property” means the property that is described below under the heading ofeee Ridh in the Property." (G) “Loan” means the debt evidenced by the Note, plus interest, any prepayment chan charges due under the Note, and all sums due under this Security Instrument, plus interest. fee 4ulouzizil rage 24 orél oN (C Ce ws “? @) onion lm “a Security lustrument that are executed by Borrower. The following Riders are se to be a eneak Doea as o Adjustable ndominium Rider O Second Home Rider OC BalloonRi lanned Unit Development Rider 1 1-4 Family Rider O VA Rider Biweekly Payment Rider Other(s) [specify] (® “Applicable ware applicable federal, state and local statutes, ions, ordinances and administrative rules and a effect of law) as well as all applicable final, non-appealable judicial opinions. hatha r () “Community Associatio isments” means all dues, fees, assessments and other charges that are imposed on Borrow condominium association, homeowners association or similar organization. (KX) “Electronic Funds Transfer”mLon hey of funds, other than a transaction originated by check, draft, or similar paper instrument, which ci rou han electronic terminal, telephonic instrument, computer, or magnetic tape so as to order, instruct, @1 hort institution to debit or credit an account. Such term. includes, but is not limited to, point-o: ors, teller machine transactions, transfers initiated by telephone, wire transfers, and autom: ted earinghopst (L) “Escrow Items” means those items th in Section3 (M) “Miscellaneous Proceeds” means any settle award of damages, or proceeds paid by any third party (otherthan insurance proceeds pai der the cov; ribed in Section, 5) for: (i) damage to, or destruction of, the Property; (ii) condemnation or other ofajl or part of the Property; (iii) conveyance in lieu of condemnation; or (iv) misrepresentations of, or pthissic to, the value and/or condition of the Property. (N) “Mortgage Insurance” means insurance prot iB ‘the nonpayment of, or default on, the Loan. (O) “Periodic Payment” means the regularly sched ount dye ‘for~ principal and interest under the Note, plus (ii) any amounts under Section 3 of this Security @®) “RESPA” means the Real Estate Settlement Procedures (l 3 Section 2601 et seq.)and its implementing regulation, Regulation X (12 CFR. Part 1024)/as it be amended from time to time, any additional or successor legislation or regulation that ‘subject matter. As used in this Security Instrument, RESPA refers to all requirements and restrictions reeinsicn a "federally related mortgage loan" even if the Loan does not qualify as a "federal oan" under RESPA. (Q) “Successor in Interest of Borrower” means any party that has party has assumed Borrower's obligations under the Note and/or Transfer of Rights in the Property. This Instrument py 9 and all renewals, extensions and modifications of the Note; and (ii) the performatice of 3: ss fsa ie tb Property, whether or not that magento, wer's covenants agreements under this Security Instrument and the Note. For this purpose, grants and conveys to Trustee, in trust, with power of sale, the following described property lo ype of Recording Sf FY WY ‘TEXAS-Single Family-Fannie MaefFteddie Mac UNIFORM INSTRUMENT FORM 3044 1/01 4015 ‘Woiters Kluwer Financial Services ‘2016022515 :3.0,5355-J20151050Y Page 20f 17 4Ul0uziIzil rage 2 OFZ! (C Oe 2 2) Dancin) 0: hu eh ording Jurisdiction] Legal Description is attached here to as Exhibit A and made part a obaan ageAe Parcel ID Number: ‘Texas 77407 [Zip aM fl46979, Whi (Property Aa fess\!): has the address of 7330 Jacobs Well DR [Street] RICHMOND [City], TOGETHER WITH all: ¢ ipsproyein a or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hi 4 e property. All replacements and additions shall also be covered by this Security Instrument. All of the fopetging tereferred to in this Security Instrument as the "Property." BORROWER COVEN: rr lawfully seised of the estate hereby conveyed and has the right to grant and convey the Property; dthat is unencumbered, except for encumbrances of record. Borrower warrants and will defend gen Hy heti tt} the Property against all claims and demands, subject to any encumbrances of record. THIS SECURITY INSTRUMENT Comb; upiform covenants for national use and non-uniform covenants with limited variations by jurisdiction to co; security instrument covering real property. Uniform Covenants. Borrower and agree as follows: 4. Payment of Principal, Interest, E: MS, ep ent Charges, and Late Charges. Borrower shall pay when due the principal of, and int énced by the Note and any prepayment charges and late charges due under the Note. Borrower und ‘for Escrow Items pursuantto Section 3. Payments due under the Note and this Security Instrument sl n. U.S. currency. However, if any check or other instrument received by Lender as payment under the Note og’th is retumedto Lender unpaid, Lender may require that any or all subsequent payments due ukdef the Note urity Instrument be made in one or more of the following forms, as selected by Lender: (a) cash; (b) m order; certified check, bank check, treasurer's check or cashier's check, provided such check is drawn ion whose deposits are insured by a federal agency, instrumentality, or entity; or (d) Electronic Fun Aransfef. Payments are deemed received by Lender when receiv th losetfon in the Note or at such other location as may be designated by Lender in accordance with the notice provisipris in Section 15. Lender may return any payment or partial payment if the payment or partial paym: cient to bring the Loan current. Lender may accept any payment or partial payment insufficient to bring the ut waiver of any rights hereunder or prejudice to its rights to refuse such payment or partial paym« but Lender is not obligated to apply such payments at the time such payments are accepted. If each P is applied as of its scheduled due date, then Lender need not pay interest on unapplied funds. Lendé may ho! ied funds until] Borrower sakes payment to bring the Loan current. If Borrower does not do'sq.withisr 4 le period of time, Lender shall either apply such funds or return them to Borrower. If not applied earlier, be appliedto the outstanding principal balance under the Note immediately prior to foreclosure. No 6 vino! Which Borrower might have now or in the future against Lender shall relieve Borrower from making du a inder, Instrument or performing the covenants and agreements secured by this ecu ss 2. Application of Payments or Proceeds. Except as otherwise descetbad i Lon, 2, all payments accep' ted. and applied by Lender shall be applied in the following order of priority: (a) i the Note; (b) principal due under the Note; (c) amounts due under Section 3. Such payments shall be ri Payment in eo ‘TEXAS-Single Family-Fannie Mac/Freddie Mac UNIFORM INSTRUMENT Jf FORM 3044 1/01 ‘Wolters Kluwer FinancialServices es > Page of 17 4U10UZISII rage 4o0rz! (CG oe oe: i the orderin which i amounts due under a) this Se e du4 amounts shall be applied first to late charges, second and then to reduce the principal balance of the Note. to any other If Lender receives & ent tom for a delinquent Periodic Payment which includes a sufficient amount to pay any late due,the tqaaysbe applied to the delinquent payment and the late charge. If more than one Periodic Payment Periodic Payments if, ue may apply any payment received from Borrower to the repayment of the at, each payment can be paid in full. To the extent that any excess exists after the payment is applied to’the, charges due. Voluntary mvt of one or more Periodic Payments, such excess may be applied to any late applied first to any prepayment charges and then as described in the Note. Any application of payments; insdran or,Miscellaneous Proceeds to principal due under the Note shall not extend or postpone the due date, ¢h amptint, of the Periodic Payments. 3. Funds for Escrow Items. Lender on the day Periodic Payments are due under the Note, until the Note is paid in full, a sunt th provide for payment of amounts due for: (a) taxes and assessments pads") and other items which can attain priority’ov Instrument as a lien or encumbrance on the Property; (b) leasehold payments or ground rents the (c) premiums for any and all insurance required by Lender under Section 5; and (d) Mortgage In: any, or any sums payable by Borrower to Lender in lieu ants: of the payment of Mortgage Insurance ith the provisions of Section 10. These items are called "Escrow Items." At origination or at sf in he tebm of the Loan, Lender may require that Community Association Dues, Fees, and Assessments, Borrower, and such dues, fees and assessments shall be an Escrow Item. Borrower shall promptly all notices of amountsto be paid under this Section. Borrower shall pay Lender the Funds for s Lender waives Borrower's obligation to pay the Funds for any or all Escrow Items. Lender may waive Borrower's obligati ‘to,pay to Lender Funds for any or all Escrow Items at any time. Any such waiver may only be tr'writing. In the’event such waiver, Borrower shall pay directly, when and where payable, the amounts due for any Escrow Itestis for, gh hypayment of Funds has been waived by Lender and, if Lender requires, shall furnish to Lender receipts eyid font ing h payment within such time period as Lender may require. Borrower's obligation to make suck’p d to provide receipts shall for all purposes be deemed to be a covenant and agreement contained in this Secy fient, as the phrase "covenant and agreement" is used in Section 9. If Borrower is obligated to pay J Ttems dirgetly, pursuant to a waiver, and Borrower fails to pay the amount due for an Escrow Item, Lender may exerci Borrower shall then be obligated under Section 9 to repay to as to any or all Escrow Items at any time by a notice given in woLagay ‘uhder Section 9 and pay such amount and jount. Lender may revoke the waiver ion 15 and, upon such revocation, Borrower shall pay to Lender all Funds, and in such amounts, arp thd Renae Section 3. Lender may, at any time, collect and hold Funds in an amount (a) it Lenderto apply the Funds at the time specified under RESPA, and (b) not to exceed the maximum atttowSt # lender require under RESPA. Lender shall estimate the amount of Funds due on the basis of currentdata and esfimates of expenditures of future Escrow Items or otherwise in accordance with Applicable Law. The Funds shall be held in an institution whose deposits are insured by atfederal ag VA, entality, or entity (including Lender, if Lender is an institution whose deposits are so ins! Home Loan Bank. Lender shall apply the Funds to pay the Escrow Items no later than the time spe€ifie, SPA. Lender shall not charge Borrower for holding and applying the Funds, annually analyzing the verifying the Escrow tems, unless Lender pays Borrower interest on the Funds and Applicable La Unless an agreement is made in writing or Applicable Law requires interestto se make such a charge. Fuids, Lender shall fa Ph ‘TEXAS-Single Family-Fannis Mae/Freddie Mac UNIFORM INSTRUMENT. ‘Welters Kiuwer Financial Services (2018022615.3.0.3355-J20151030¥ oA: Y)) FORM 3044 4/01 10K Page sof 17 eulouzigil rage J01Z! ike a Ve \e > 2) “Hy sr 8 residence for aMeastohp of occupancy, unless Lender otherwise agrees in writing, which saben shall not be unre: less extenuating circumstances exist which are beyond Borrower's control, 7. Preservation, sete nanceat otection of the Property; Inspections. Borrower shall not destroy, ey damage or impair the Proy perty to deteriorate or commit waste on the Property. Whether or not Borrower is residing in. wer shall maintain the in order to prevent the Property from deteriorating or d its condition. Unless it is determined pursuant to Section 5 that repair or restoration is not econo: ym per cole wer shall promptly repair the Property if damaged to avoid further ag =e = deterioration or damage. nntlemnation proceeds are paid in connection with damage to, or the taking of, the Property, Borrower ibl for repairing or restoring the Property only if Lender has released proceeds for such purposes. for the repairs and restoration in a single payment or ina series of progress payments as is the insurance or condemnation proceeds are not sufficient to repair or restore the Property, B ne ofee of Borrower's obligation for the completion of such repair or restoration. ee * Lender or its agent may make reasonaple. inspections of the Property.If it has reasonable cause, Lender may inspect the interior of the Property. Lender shall give Borrower notice at the time of ees or prior to such an interior inspection cause. 8. Borrower's Loan Application. indefa if, during the Loan application process, Borrower or any persons or entities acting at the dir ne with Borrower's knowledge or consent gave materially repre false, misleading, or inaccurate informati OD. ler (or failed to provide Lender with material information) in connection with the Loan. tations in; de, but are not limited to, representations concerning Borrower's occupancy of the Proj orrower's prj residence. 9. Protection of Lender's Interest in the Property and ightsU der this Security Instrument. If (a) Borrower fails to the covenants and agreements confa ed.ih this Jec Instrument, (b) there is a legal proceeding that might significantly affect Lender's inter id/or rights under this Security Instrument (such asa proceeding in bankruptcy, probate, for condei ion or £6 eit , for enforcement of a lien which may attain priority over this Security Instrument or to enforce’ SO ions), or (c) Borrower has abandoned the Property, then Lender may do and pay for whatever is le o1 opsjate to protect Lender's interest in the Property and rights under this Security Instrument, including protectin assessing the value of the Property, and securing and/or repairing the Property. Lender's actions can in not limited to: (a) paying any sums secured by a lien which has priority over this Security nstrumeny 1p in court; and (©). paying reasonable attorneys’ fees to protect its interest in the Property and/or rights Instrument, including its secured position in a bankruptcy proceeding. Securing the Property includ limited to, entering the Property to tnake repairs, change locks, replace or board up doors and windows, drain from pipes, eliminate building or other code violations or dangerous conditions, and have utilities