Preview
Electronically Filed
10/11/2018 8:36 AM
Hidalgo County District Clerks
Reviewed By: Leslie Agado
CAUSE NO. C-3547-18-B
TOMAS CANTU, JR., § IN THE DISTRICT COURT OF
§
Plaintiffs, §
§
v. § HIDALGO COUNTY, TEXAS
§
§
VISIO FINANCIAL SERVICES, INC., §
Et al. §
§
Defendants. § 93rd JUDICIAL DISTRICT
DEFENDANTS ARNOLD MENDOZA, WILLIAM D. LAREW, DAVID KARLY,
AND JULIE MARTIN'S ANSWER, AFFIRMATIVE DEFENSES, AND
VERIFIED DENIAL TO PLAINTIFFS' ORIGINAL PETITION
COMES NOW, Defendants, ARNOLD MENDOZA, WILLIAM D. LAREW,
DAVID KARLY, AND JULIE MARTIN, SUBSTITUTE TRUSTEES (hereinafter
"Trustee Defendants"), and file this their Answer, Affirmative Defenses, and Verified
Denial to Plaintiffs' Original Petition (hereinafter "Plaintiffs' Petition"), and would
respectfully show unto the Court as follows:
General Denial
1. Trustee Defendants assert a general denial as is authorized by Rule 92 of the
Texas Rules of Civil Procedure, and Trustee Defendants respectfully request that
Plaintiffs be required to prove their charges and allegations against Trustee Defendants
by a preponderance of the evidence as required by the Constitution and the laws of the
State of Texas.
Affirmative Defenses
2. ln addition to and/or alternatively, without waiving the foregoing, Trustee
Defendants would show Plaintiff wholly failed to make any demand.
BDFTE No. 7910052 / CANTU, JR. Pagel
Electronically Filed
10/11/2018 8:36 AM
Hidalgo County District Clerks
Reviewed By: Leslie Agado
3. In addition to and/or alternatively, without waiving the foregoing, Plaintiffs
claims are barred in whole or in part by the defense of !aches.
4. In addition to and/or alternatively, without waiving the foregoing, Plaintiffs
damages, if any, which Trustee Defendants do not admit, were caused in whole or in part
by Plaintiffs own acts, negligent or otherwise, and Defendants are thus not liable.
5. In addition to and/or alternatively, without waiving the foregoing, Trustee
Defendants assert-that all conditions precedent to Plaintiffs rights to recover, if any, have
not been satisfied, have not occurred or have not been waived.
6. Plaintiffs claims are barred in whole or in part by his prior breach of the contract
and, therefore, Plaintiffs cannot maintain an action on contract.
7. In addition to and/or alternatively, without waiving the foregoing, Trustee
Defendants assert that Plaintiffs possession has been continuous and uninterrupted and,
therefore, Plaintiff has no damages.
8. In addition to and/or alternatively, without waiving the foregoing, Trustee
Defendants assert that Plaintiff failed to mitigate his alleged damages, if any, which
damages are strictly denied by Trustee Defendants.
9. In addition to and/or alternatively, without warvmg the foregoing, Trustee
Defendants are not "debt collectors" as defined by the Texas Debt Collections Act, the
Texas Deceptive Trade Practices Act, and/or the Texas Finance Code.
10. In addition to and/or alternatively, without waiving the foregoing, Plaintiffs
claims are barred by the doctrine of unclean hands because Plaintiff failed to perform his
contractual obligations, has failed to tender the sums due, and, therefore, is not entitled to
any equitable relief.
Defendants' Answer, Affirmative Defenses and Verified Denial Page2
BDFTE No. 7910052 / CANTU,JR.
Electronically Filed
10/11/2018 8:36 AM
Hidalgo County District Clerks
Reviewed By: Leslie Agado
Verified Denial
11. Trustee Defendants are not a necessary party to this litigation, and pursuant to
Section 51.007(a) of the Texas Property Code, they assert their denial herein and seek
dismissal from this suit. Tex. Prop. Code § 51.007.
12. It is Trustee Defendants' reasonable belief they were named as a party in this
litigation solely in their capacity as substitute trustees under the Deed of Trust.
13. Defendants are not familiar with Plaintiff. At the time of this filing, Trustee
Defendants have no knowledge of ever having met the Plaintiffs, unless such contact was
as a result of Trustee Defendants acting as substitute trustees, in accordance with their
duties as substitute trustees to initiate foreclosure proceedings. The only contact Trustee
Defendants have with this lawsuit, is by way of their appointment of Substitute Trustee,
appointing Trustee Defendants as substitute trustees under the terms of the Deed of Trust.
14. In addition to and/or alternatively, without waiving the foregoing, Trustee
Defendants assert that it is their reasonable belief that they were named as a party in this
litigation solely in their capacity as a Substitute Trustees under the Deed of Trust made
the basis of this suit, that their only connection with this lawsuit is their appointment as
Substitute Trustees under the terms of the Deed of Trust, and Trustee Defendants assert
they were each the duly appointed Substitute Trustee under the Deed of Trust in the stead
and place of the named Trustee therein, and properly acted solely as an independent
contractor pursuant to the rights and duties granted to Trustee Defendants under the Deed
of Trust, their Appointment, and the appropriate provisions of the Texas Property Code.
Defendants' Answer, Affirmative Defenses and Verified Denial Page3
BDFTENo. 7910052/CANTU,JR.
Electronically Filed
10/11/2018 8:36 AM
Hidalgo County District Clerks
Reviewed By: Leslie Agado
15. In addition to, and without waiving the foregoing, Trustee Defendants deny any
intentional wrongful act, intentional wrongdoing, and/or any infliction of mental
suffering on Plaintiffs.
16. Trustee Defendants specifically deny that any misrepresentation was made to
Plaintiffs.
17. Trustee Defendants deny that they are liable in the capacity in which they have
been sued, or in any capacity.
WHEREFORE CONSIDERED, ARNOLD MENDOZA, WILLIAM D. LAREW,
DAVID KARLY, At\1D JULIE MARTIN, SUBSTITUTE TRUSTEES, pray that they be
dismissed from this cause of action, and alternatively pray that upon trial of this cause of
action, that Plaintiff take nothing by reason of this suit, that Trustee Defendants, ARNOLD
MENDOZA, WILLIAM D. LAREW, DAVID KARLY, AND JULIE MARTIN, Substitute
Trustees, be awarded their reasonable and necessary attorney's fees, court costs and for such
other and further relief to which Trustee Defendants, may show themselves to be justly
entitled to, at law or in equity.
Defendants' Answer, Affirmative Defenses and Verified Denial Page4
BDFTE No. 7910052 / CANTU,JR.
Electronically Filed
10/11/2018 8:36 AM
Hidalgo County District Clerks
Reviewed By: Leslie Agado
Respectfully submitted,
BARRETT DAFFIN FRAPPIER
TURNER & ENGEL, LLP
Is/Robert D. Forster, II
Robert D. Forster, II
State Bar No. 24048470
4004 Belt line Road., Ste. 100
Addison, Texas 75001-4320
(972) 340- 7948 (Phone)
(972) 341-0734 (Facsimile)
Robertfo@bdfgroup.com
ATTORNEY FOR TRUSTEE
DEFENDANTS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Answer and Verified
Denial has been delivered to all counsel of record pursuant to the Texas Rules of Civil
Procedure on this the 11th day of October, 2018.
Jordan King
3409 N. 10th Street
McAllen, Texas 7501
/s/ Robert D. Forster, II
Robert D. Forster, II
Defendants' Answer, Affirmative Defenses and Verified Denial Page5
BDFTE No. 7910052 / CANTU,JR.
Electronically Filed
10/11/2018 8:36 AM
Hidalgo County District Clerks
Reviewed By: Leslie Agado
VERIFICATION
STATE OF TEXAS §
§
COUNTY OF §
BEFORE ME, the undersigned authority did appear WILLIAM D. LAREW who
did depose and state as follows.
"My name is WILLIAM D. LAREW. I am a Substitute Trustee in regard to
a Deed of Trust securing an obligation of Tomas Cantu, Jr. on certain real property
located in Hidalgo County, Texas. I was appointed Substitute Trustee to the Deed of
Trust."
"I have read the foregoing Defendants' Answer, Affirmative Defenses, and
Verified Denial to Plaintiffs' Original Petition. I have personal knowledge of the
facts contained in paragraphs 11 through 17, and the facts contained therein, are true
and correct."
FURIBERAFFIANT SAITH NOT.
SUBSCRIBED AND SWORN TO BEFORE ME on this the
2018 to certify which witness my hand and official seal.
JQ day of October,
No .e-.:i=e-ofTexas
--+,J...,,-.,'-'\-<+'lf""-'"""=-- (Printed Name)
My Commission Expires:
C.A. SANCHEZ
,,,,\��·t'IJ,.-
1
��
...;;'o �,;,,
()::. ' ID # 3842854
§• •§ Notary Public. State of Texas
%��
�11
+�$ My COl'llmlssion Expires
1il,Ri1�'''" 11/13/2021
Defendants' Answer, Affirmative Defenses and Verified Denial Page 7
BDFTE No. 7910052 / CANTU, JR.
Electronically Filed
10/11/2018 8:36 AM
Hidalgo County District Clerks
Reviewed By: Leslie Agado
VERIFICATION
STATE OF TEXAS §
§
COUNTY OF §
BEFORE ME, the undersigned authority did appear ARNOLD MENDOZA who
did depose and state as follows.
"My name is ARNOLD MENDOZA. I am a Substitute Trustee in regard to
a Deed of Trust securing an obligation of Tomas Cantu, Jr. on certain real property
located-in Hidalgo County, Texas. I was appointed Substitute Trustee to the Deed of
Trust."
"I have read the foregoing Defendants' Answer, Affirmative Defenses, and
Verified Denial to Plaintiffs' Original Petition, I have personal knowledge of.the
facts contained in paragraphs 11 through 17, aud the facts contained therein, are true
and correct."
FUR1HER AFFIANT SAI1H NOT.
th�
SUBSCRIBED AND SWORN TO BEFORE ME on this day of October,
2018 to certify which witness my hand and official seal.
SANDRA H. MENDOZA
Notary ID#: 12457892·9
My Comminlon Expires
06/0212019
My Commission Expires:
Defendants' Answer, Affirmative Defenses and Verified Denial Page6
BDFTE No. 7910052 / CANTU, JR.
Electronically Filed
10/11/2018 8:36 AM
Hidalgo County District Clerks
Reviewed By: Leslie Agado
VERIFICATION
STAIB OF TEXAS §
§
COUNTY OF IIlDALGO §
.. BEFORE ME, the undersigned authority did appear DAVID KARLY who did
,c.depo�e and state as follows.
"My name is DAVID KARLY. I am a Substitute Trustee in regard to a
Deed of Trust securing an obligation of Tomas Cantu, Jr.on certain real property
located in Hidalgo County, Texas. I was appointed Substitute Trustee to the Deed of
Trust."
"I have read the foregoing Defendants' Answer, Affirmative Defenses, and
Verified Denial to Plaintiffs' Original Petition. I have personal knowledge of the
facts contained in paragraphs llthrougli 17, and the facts contained therein, are true
and correct."
FURTHER AFFIANT SAITH NOT.
DAVID KARL � 15::M'it-l(.a 1-l.e._-
,
...
-.-_
··
..• ;_·J. .•
......
··,�. I
.<.:.
(D
Preview
Electronically Filed 10/11/2018 8:36 AM Hidalgo County District Clerks Reviewed By: Leslie Agado CAUSE NO. C-3547-18-B TOMAS CANTU, JR., § IN THE DISTRICT COURT OF § Plaintiffs, § § v. § HIDALGO COUNTY, TEXAS § § VISIO FINANCIAL SERVICES, INC., § Et al. § § Defendants. § 93rd JUDICIAL DISTRICT DEFENDANTS ARNOLD MENDOZA, WILLIAM D. LAREW, DAVID KARLY, AND JULIE MARTIN'S ANSWER, AFFIRMATIVE DEFENSES, AND VERIFIED DENIAL TO PLAINTIFFS' ORIGINAL PETITION COMES NOW, Defendants, ARNOLD MENDOZA, WILLIAM D. LAREW, DAVID KARLY, AND JULIE MARTIN, SUBSTITUTE TRUSTEES (hereinafter "Trustee Defendants"), and file this their Answer, Affirmative Defenses, and Verified Denial to Plaintiffs' Original Petition (hereinafter "Plaintiffs' Petition"), and would respectfully show unto the Court as follows: General Denial 1. Trustee Defendants assert a general denial as is authorized by Rule 92 of the Texas Rules of Civil Procedure, and Trustee Defendants respectfully request that Plaintiffs be required to prove their charges and allegations against Trustee Defendants by a preponderance of the evidence as required by the Constitution and the laws of the State of Texas. Affirmative Defenses 2. ln addition to and/or alternatively, without waiving the foregoing, Trustee Defendants would show Plaintiff wholly failed to make any demand. BDFTE No. 7910052 / CANTU, JR. Pagel Electronically Filed 10/11/2018 8:36 AM Hidalgo County District Clerks Reviewed By: Leslie Agado 3. In addition to and/or alternatively, without waiving the foregoing, Plaintiffs claims are barred in whole or in part by the defense of !aches. 4. In addition to and/or alternatively, without waiving the foregoing, Plaintiffs damages, if any, which Trustee Defendants do not admit, were caused in whole or in part by Plaintiffs own acts, negligent or otherwise, and Defendants are thus not liable. 5. In addition to and/or alternatively, without waiving the foregoing, Trustee Defendants assert-that all conditions precedent to Plaintiffs rights to recover, if any, have not been satisfied, have not occurred or have not been waived. 6. Plaintiffs claims are barred in whole or in part by his prior breach of the contract and, therefore, Plaintiffs cannot maintain an action on contract. 7. In addition to and/or alternatively, without waiving the foregoing, Trustee Defendants assert that Plaintiffs possession has been continuous and uninterrupted and, therefore, Plaintiff has no damages. 8. In addition to and/or alternatively, without waiving the foregoing, Trustee Defendants assert that Plaintiff failed to mitigate his alleged damages, if any, which damages are strictly denied by Trustee Defendants. 9. In addition to and/or alternatively, without warvmg the foregoing, Trustee Defendants are not "debt collectors" as defined by the Texas Debt Collections Act, the Texas Deceptive Trade Practices Act, and/or the Texas Finance Code. 10. In addition to and/or alternatively, without waiving the foregoing, Plaintiffs claims are barred by the doctrine of unclean hands because Plaintiff failed to perform his contractual obligations, has failed to tender the sums due, and, therefore, is not entitled to any equitable relief. Defendants' Answer, Affirmative Defenses and Verified Denial Page2 BDFTE No. 7910052 / CANTU,JR. Electronically Filed 10/11/2018 8:36 AM Hidalgo County District Clerks Reviewed By: Leslie Agado Verified Denial 11. Trustee Defendants are not a necessary party to this litigation, and pursuant to Section 51.007(a) of the Texas Property Code, they assert their denial herein and seek dismissal from this suit. Tex. Prop. Code § 51.007. 12. It is Trustee Defendants' reasonable belief they were named as a party in this litigation solely in their capacity as substitute trustees under the Deed of Trust. 13. Defendants are not familiar with Plaintiff. At the time of this filing, Trustee Defendants have no knowledge of ever having met the Plaintiffs, unless such contact was as a result of Trustee Defendants acting as substitute trustees, in accordance with their duties as substitute trustees to initiate foreclosure proceedings. The only contact Trustee Defendants have with this lawsuit, is by way of their appointment of Substitute Trustee, appointing Trustee Defendants as substitute trustees under the terms of the Deed of Trust. 14. In addition to and/or alternatively, without waiving the foregoing, Trustee Defendants assert that it is their reasonable belief that they were named as a party in this litigation solely in their capacity as a Substitute Trustees under the Deed of Trust made the basis of this suit, that their only connection with this lawsuit is their appointment as Substitute Trustees under the terms of the Deed of Trust, and Trustee Defendants assert they were each the duly appointed Substitute Trustee under the Deed of Trust in the stead and place of the named Trustee therein, and properly acted solely as an independent contractor pursuant to the rights and duties granted to Trustee Defendants under the Deed of Trust, their Appointment, and the appropriate provisions of the Texas Property Code. Defendants' Answer, Affirmative Defenses and Verified Denial Page3 BDFTENo. 7910052/CANTU,JR. Electronically Filed 10/11/2018 8:36 AM Hidalgo County District Clerks Reviewed By: Leslie Agado 15. In addition to, and without waiving the foregoing, Trustee Defendants deny any intentional wrongful act, intentional wrongdoing, and/or any infliction of mental suffering on Plaintiffs. 16. Trustee Defendants specifically deny that any misrepresentation was made to Plaintiffs. 17. Trustee Defendants deny that they are liable in the capacity in which they have been sued, or in any capacity. WHEREFORE CONSIDERED, ARNOLD MENDOZA, WILLIAM D. LAREW, DAVID KARLY, At\1D JULIE MARTIN, SUBSTITUTE TRUSTEES, pray that they be dismissed from this cause of action, and alternatively pray that upon trial of this cause of action, that Plaintiff take nothing by reason of this suit, that Trustee Defendants, ARNOLD MENDOZA, WILLIAM D. LAREW, DAVID KARLY, AND JULIE MARTIN, Substitute Trustees, be awarded their reasonable and necessary attorney's fees, court costs and for such other and further relief to which Trustee Defendants, may show themselves to be justly entitled to, at law or in equity. Defendants' Answer, Affirmative Defenses and Verified Denial Page4 BDFTE No. 7910052 / CANTU,JR. Electronically Filed 10/11/2018 8:36 AM Hidalgo County District Clerks Reviewed By: Leslie Agado Respectfully submitted, BARRETT DAFFIN FRAPPIER TURNER & ENGEL, LLP Is/Robert D. Forster, II Robert D. Forster, II State Bar No. 24048470 4004 Belt line Road., Ste. 100 Addison, Texas 75001-4320 (972) 340- 7948 (Phone) (972) 341-0734 (Facsimile) Robertfo@bdfgroup.com ATTORNEY FOR TRUSTEE DEFENDANTS CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Answer and Verified Denial has been delivered to all counsel of record pursuant to the Texas Rules of Civil Procedure on this the 11th day of October, 2018. Jordan King 3409 N. 10th Street McAllen, Texas 7501 /s/ Robert D. Forster, II Robert D. Forster, II Defendants' Answer, Affirmative Defenses and Verified Denial Page5 BDFTE No. 7910052 / CANTU,JR. Electronically Filed 10/11/2018 8:36 AM Hidalgo County District Clerks Reviewed By: Leslie Agado VERIFICATION STATE OF TEXAS § § COUNTY OF § BEFORE ME, the undersigned authority did appear WILLIAM D. LAREW who did depose and state as follows. "My name is WILLIAM D. LAREW. I am a Substitute Trustee in regard to a Deed of Trust securing an obligation of Tomas Cantu, Jr. on certain real property located in Hidalgo County, Texas. I was appointed Substitute Trustee to the Deed of Trust." "I have read the foregoing Defendants' Answer, Affirmative Defenses, and Verified Denial to Plaintiffs' Original Petition. I have personal knowledge of the facts contained in paragraphs 11 through 17, and the facts contained therein, are true and correct." FURIBERAFFIANT SAITH NOT. SUBSCRIBED AND SWORN TO BEFORE ME on this the 2018 to certify which witness my hand and official seal. JQ day of October, No .e-.:i=e-ofTexas --+,J...,,-.,'-'\-<+'lf""-'"""=-- (Printed Name) My Commission Expires: C.A. SANCHEZ ,,,,\��·t'IJ,.- 1 �� ...;;'o �,;,, ()::. ' ID # 3842854 §• •§ Notary Public. State of Texas %�� �11 +�$ My COl'llmlssion Expires 1il,Ri1�'''" 11/13/2021 Defendants' Answer, Affirmative Defenses and Verified Denial Page 7 BDFTE No. 7910052 / CANTU, JR. Electronically Filed 10/11/2018 8:36 AM Hidalgo County District Clerks Reviewed By: Leslie Agado VERIFICATION STATE OF TEXAS § § COUNTY OF § BEFORE ME, the undersigned authority did appear ARNOLD MENDOZA who did depose and state as follows. "My name is ARNOLD MENDOZA. I am a Substitute Trustee in regard to a Deed of Trust securing an obligation of Tomas Cantu, Jr. on certain real property located-in Hidalgo County, Texas. I was appointed Substitute Trustee to the Deed of Trust." "I have read the foregoing Defendants' Answer, Affirmative Defenses, and Verified Denial to Plaintiffs' Original Petition, I have personal knowledge of.the facts contained in paragraphs 11 through 17, aud the facts contained therein, are true and correct." FUR1HER AFFIANT SAI1H NOT. th� SUBSCRIBED AND SWORN TO BEFORE ME on this day of October, 2018 to certify which witness my hand and official seal. SANDRA H. MENDOZA Notary ID#: 12457892·9 My Comminlon Expires 06/0212019 My Commission Expires: Defendants' Answer, Affirmative Defenses and Verified Denial Page6 BDFTE No. 7910052 / CANTU, JR. Electronically Filed 10/11/2018 8:36 AM Hidalgo County District Clerks Reviewed By: Leslie Agado VERIFICATION STAIB OF TEXAS § § COUNTY OF IIlDALGO § .. BEFORE ME, the undersigned authority did appear DAVID KARLY who did ,c.depo�e and state as follows. "My name is DAVID KARLY. I am a Substitute Trustee in regard to a Deed of Trust securing an obligation of Tomas Cantu, Jr.on certain real property located in Hidalgo County, Texas. I was appointed Substitute Trustee to the Deed of Trust." "I have read the foregoing Defendants' Answer, Affirmative Defenses, and Verified Denial to Plaintiffs' Original Petition. I have personal knowledge of the facts contained in paragraphs llthrougli 17, and the facts contained therein, are true and correct." FURTHER AFFIANT SAITH NOT. DAVID KARL � 15::M'it-l(.a 1-l.e._- , ... -.-_ ·· ..• ;_·J. .• ...... ··,�. I .<.:. (D