Preview
Received and E-Filed for Record
1/28/2021 10:29 AM
Melisa Miller, District Clerk
Montgomery County, Texas
Deputy Clerk, Tony Beltran
CAUSE NO. 20-12-15791
LAKE CONROE HOME OWNERS § IN THE DISTRICT COURT
ASSOCIATION, INC., §
Plaintiff, §
§ 248th JUDICIAL DISTRICT
v. §
§
JORDAN DUKE, §
Defendant. § MONTGOMERY COUNTY, TEXAS
DEFAULT JUDGMENT
ON THIS DAY, the Court was presented this Default Judgment against
Defendant JORDAN DUKE (hereinafter the “Defendant”). Plaintiff, LAKE
CONROE HOME OWNERS ASSOCIATION, INC. (“Plaintiff”) by its counsel,
announced ready for trial; and the Defendant, although duly, legally and properly
cited according to law to appear and answer herein, failed to appear or answer herein
and wholly made default.
After consideration of the pleadings and the evidence on file, the Court finds
that it has jurisdiction over the parties, and the subject matter hereof; that Defendant
has been properly served with process herein; that the return of such service has been
on file for more than ten (10) days; that Defendant has wholly failed to appear and
answer herein; that Plaintiff's causes of action are liquidated and proven by the
Verified Original Petition.
DEFAULT JUDGMENT Page 1
The Court finds that Plaintiff is and has been at all times relevant hereto, the
sole owner of the real property described as the 2.1576 acres in William C. Clark
survey, Abstract #6 in Montgomery County, Texas Reserve A of April Point
(“Property”).
The Court finds that at all relevant times hereto, Plaintiff has paid the real
property taxes related to the Property.
The Court finds that the Property established a timeshare condominium project
consisting of a fee interest in a Time Period Unit or Interval, as defined in the
governing documents of the entity and the undivided fee interest in the Common
Elements appurtenant to such Time Period Unit was developed at the Property (the
“Timeshare Development”).
The Court finds that the Timeshare Development was established by the
recording of that certain Declaration of Covenants, Conditions and Restrictions for
Timeshare Ownership within Owners’ Resorts at Lake Conroe recorded August 22,
1979, Volume 1, Page 645 of the Condominium Records in the County Clerk’s
Offices, Montgomery County, Texas (the “Declaration”).
The Court finds that the Declaration was amended an April 7, 1990 (the
“Amended Declaration”).
The Court finds that the Timeshare Development is also governed by the
DEFAULT JUDGMENT Page 2
Bylaws of Lake Conroe Home Owners Association (the “Bylaws”).
The Court finds that the Timeshare Development and Intervals (as defined in
the Amended Declaration) contained therein are subject to and governed by the
Declaration, which established the Sweetwater Lake Conroe Condoshare Project
Owners Association, that was succeeded by Lake Conroe Home Owners Association
(the “Association”) as a property owners’ association for the Timeshare Development.
See the Amended Declaration at Articles 1.1 and 3.1.
The Court finds that the Declaration, and its amendments and bylaws, vest the
Association with the authority to levy assessments against the Interval Owners in the
Timeshare Development to pay for Common Expenses associated with maintenance
of the common elements within such Timeshare Development and operation of the
Association. See the Amended Declaration at Articles IV-VI.
The Court finds that the Amended Declaration and/or Section 82.013 of the
Texas Property Code establishes a contractual and statutory lien against each Interval
Owner and Interval in the Condominium Development that secures the payment of
all unpaid assessments, late fees, interest and costs of collection incurred by the
Association, including attorneys fees (hereinafter referred to as the “Assessment
Lien”). See the Amended Declaration at Articles IV-VI.
The Court finds Defendant purchased an Interval of the Timeshare
DEFAULT JUDGMENT Page 3
Development from Joe Arrigoni on or about October 31, 2013, which was
memorialized by a Warranty Deed (the “Deed”).
The Court finds that the Deed is recorded in the Condominium Records of
Montgomery County, Texas as Document Number 2013134087.
The Court finds that the Deed erroneously or fraudulently also conveyed an
interest in the Property to which the grantor owned no interest.
The Court finds that pursuant to the Deed, Defendant agreed to abide by the
Declaration, inclusive of all amendments and supplements, conditions, restrictions,
reservations, easements and other matters of record, as well as to perform obligations
set forth in accordance with the terms thereof, inclusive of the payment of taxes,
assessments and of the other fees related thereto. See the Declaration, Amended
Declaration and Bylaws.
The Court finds that by and through the Deed, Defendant became an Interval
Owner of the following legally described as:
...the appurtenant undivided interest for each Time Period
Unit Number conveyed hereby as a tenant-in-common in
the Common Elements as same is established and
identified in said Declaration and Map, as amended.
Excepting therefrom all oil, gas, and mineral rights
appurtenant to said Project.
This conveyance is subject to and by accepting this Deed
Grantee(s) do(es) hereby agree to assume the obligations
for payment of real estate taxes for the current year and
DEFAULT JUDGMENT Page 4
subsequent years. Further, by accepting this Deed
Grantee(s) reservations, easements and other matters of
record (2) Declarations for the Project and all amendments
and supplements thereto, agrees to perform obligations set
forth there in accordance with the terms hereof.
The Court finds that the Time Period Unit or Interval was made subject to the
Declaration prior to its ownership by Defendant, and the Deed expressly states that
the conveyance thereof is made subject to the easements, assessments, restrictions,
covenants and covenants of record against the Property.
The Court finds that Defendant has failed to pay certain taxes and assessments
related to the Interval or the Property and as a result, the Association has engaged in
certain collections efforts against Defendant and has incurred costs of collection
associated therewith.
The Court finds that as of the statement date of December 8, 2020, the total
amount due, but unpaid, assessments, late fees, interest, and cost of collection
(hereinafter referred to collectively as the “Assessment Delinquency”) owed to the
Association by Defendant was $5,465.89.
The Court finds that Plaintiff is entitled to judgment against Defendant in the
amount of FIVE THOUSAND FOUR HUNDRED SIXTY-FIVE AND 89/100
DOLLARS ($5,465.89), plus equitable pre-judgment interest through January 28,
2021, in the amount of $23.21, accruing at a per diem rate of $0.7488, plus reasonable
DEFAULT JUDGMENT Page 5
attorney's fees and expenses to date in the amount of $3,929.55, for a total judgment
of NINE THOUSAND SEVEN HUNDRED TWENTY-SEVEN AND 32/100
DOLLARS ($9,727.32), plus costs of court in the amount of $308.67, with interest
to accrue on the above sums at the rate of five percent (5%) per annum from the date
of judgment until paid in full; plus attorney's fees of $1,500.00 for any Motion for
New Trial, $3,500.00 for any appeal to the County Court at Law, $5,000.00 for any
appeal to the Court of Appeals, $10,000.00 for a Writ of Error and Response to the
Writ of Error to the Supreme Court of Texas, and $10,000.00 if any appeal or Writ
of Error is granted to the Supreme Court of Texas, plus all costs of court in such
proceedings against Defendant.
The Court also finds that Pursuant to Articles IV-VI of the Declaration and/or
Section 82.013 of the Texas Property Code, Defendant has a contractual obligation
to timely pay all assessments levied by the Association and such other charges
authorized by the Declaration and Amended Declaration, such as late fees, interest
and costs of collection incurred by the Association, and Defendant’s failure to pay the
Assessment Delinquency constitutes a material breach of such contractual obligation.
The Court further finds that pursuant to Articles IV-VI of the Declaration
and/or Section 82.013 of the Texas Property Code, Defendant’s obligation to pay the
Assessment Delinquency is secured by the Association’s Assessment Lien on the
DEFAULT JUDGMENT Page 6
Property.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that
Plaintiff, LAKE CONROE HOME OWNERS ASSOCIATION, INC. have and
recover judgment over and against Defendant, JORDAN DUKE, in the amount of
FIVE THOUSAND FOUR HUNDRED SIXTY-FIVE AND 89/100 DOLLARS
($5,465.89), plus equitable pre-judgment interest through January 28, 2021, in the
amount of $23.21, accruing at a per diem rate of $0.7488, plus reasonable attorney's
fees and expenses to date in the amount of $3,929.55, for a total judgment of NINE
THOUSAND SEVEN HUNDRED TWENTY-SEVEN AND 32/100 DOLLARS
($9,727.32), plus costs of court in the amount of $308.67, with interest to accrue on
the above sums at the rate of five percent (5%) per annum from the date of judgment
until paid in full.
IT IS FURTHER, ORDERED, ADJUDGED, AND DECREED that in the event
a Motion for New Trial is filed herein or an appeal is filed, Plaintiff have and recover
from Defendant, an additional $1,500.00 for any Motion for New Trial, $3,500.00 for
any appeal to the County Court at Law, $5,000.00 for any appeal to the Court of
Appeals, $10,000.00 for a Writ of Error and Response to the Writ of Error to the
Supreme Court of Texas, and $10,000.00 if any appeal or Writ of Error is granted to
the Supreme Court of Texas, plus all costs of court in such proceedings against
DEFAULT JUDGMENT Page 7
Defendants.
IT IS THEREFORE ORDERED THAT Plaintiff may foreclose upon the
Assessment Lien and sale of the Interval or property conveyed under the Deed in
order to satisfy the portion of the total amount due and owing to the Association that
is secured by the Association’s Assessment Lien on the Interval.
IT IS FURTHER ORDERED THAT, in accordance with Rule 310 of the Texas
Rules of Civil Procedure, after foreclosure of the Interval, a writ of possession should
issue and Defendant and anyone taking an interest under Defendant should be
dispossessed of possession of the Property.
IT IS THEREFORE ORDERED that Plaintiff’s requested declaratory
judgment, pursuant to the Uniform Declaratory Judgments Act, that the Defendant’s
account pursuant to the Declaration governing the Property is delinquent and due and
owing to Plaintiff, is GRANTED.
IT IS FURTHER ORDERED and declared that the Deed is void to the extent
it conveyed any rights, title or interest to the 2.1576 acres in William C. Clark Survey,
Abstract #6 in Montgomery County, Texas Reserve A of April Point to Defendant
beyond an Interval Interest.
IT IS THEREFORE ORDERED AND DECLARED that Defendant’s only
interest in the Property is the appurtenant Interval for which Plaintiff seeks judicial
DEFAULT JUDGMENT Page 8
foreclosure and that all rights, title and interest to the real property legally described
as 2.1576 acres in William C. Clark Survey, Abstract #6 in Montgomery County, TX
Reserve A of April Point is solely owned by Plaintiff.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that except for
the Interval conveyed thereby, and upon which foreclosure has been permitted
through this order, Defendant owns no interest, rights, or title to the Property
described in the Deed recorded in the Condominium Records of Montgomery County,
Texas as Document Number 2013134087.
IT IS ORDERED, ADJUDGED, DECREED AND DECLARED that Plaintiff
is the sole owner of the real property with the legal description of 2.1576 acres in
William C. Clark Survey, Abstract #6 in Montgomery County, Texas Reserve A of
April Point and referenced in the Deed recorded in the Condominium Records of
Montgomery County, Texas as Document Number 2013134087.
FOR ALL OF WHICH LET EXECUTION ISSUE.
SIGNED ON______________.
______________________________
JUDGE PRESIDING
DEFAULT JUDGMENT Page 9
Preview
Received and E-Filed for Record 1/28/2021 10:29 AM Melisa Miller, District Clerk Montgomery County, Texas Deputy Clerk, Tony Beltran CAUSE NO. 20-12-15791 LAKE CONROE HOME OWNERS § IN THE DISTRICT COURT ASSOCIATION, INC., § Plaintiff, § § 248th JUDICIAL DISTRICT v. § § JORDAN DUKE, § Defendant. § MONTGOMERY COUNTY, TEXAS DEFAULT JUDGMENT ON THIS DAY, the Court was presented this Default Judgment against Defendant JORDAN DUKE (hereinafter the “Defendant”). Plaintiff, LAKE CONROE HOME OWNERS ASSOCIATION, INC. (“Plaintiff”) by its counsel, announced ready for trial; and the Defendant, although duly, legally and properly cited according to law to appear and answer herein, failed to appear or answer herein and wholly made default. After consideration of the pleadings and the evidence on file, the Court finds that it has jurisdiction over the parties, and the subject matter hereof; that Defendant has been properly served with process herein; that the return of such service has been on file for more than ten (10) days; that Defendant has wholly failed to appear and answer herein; that Plaintiff's causes of action are liquidated and proven by the Verified Original Petition. DEFAULT JUDGMENT Page 1 The Court finds that Plaintiff is and has been at all times relevant hereto, the sole owner of the real property described as the 2.1576 acres in William C. Clark survey, Abstract #6 in Montgomery County, Texas Reserve A of April Point (“Property”). The Court finds that at all relevant times hereto, Plaintiff has paid the real property taxes related to the Property. The Court finds that the Property established a timeshare condominium project consisting of a fee interest in a Time Period Unit or Interval, as defined in the governing documents of the entity and the undivided fee interest in the Common Elements appurtenant to such Time Period Unit was developed at the Property (the “Timeshare Development”). The Court finds that the Timeshare Development was established by the recording of that certain Declaration of Covenants, Conditions and Restrictions for Timeshare Ownership within Owners’ Resorts at Lake Conroe recorded August 22, 1979, Volume 1, Page 645 of the Condominium Records in the County Clerk’s Offices, Montgomery County, Texas (the “Declaration”). The Court finds that the Declaration was amended an April 7, 1990 (the “Amended Declaration”). The Court finds that the Timeshare Development is also governed by the DEFAULT JUDGMENT Page 2 Bylaws of Lake Conroe Home Owners Association (the “Bylaws”). The Court finds that the Timeshare Development and Intervals (as defined in the Amended Declaration) contained therein are subject to and governed by the Declaration, which established the Sweetwater Lake Conroe Condoshare Project Owners Association, that was succeeded by Lake Conroe Home Owners Association (the “Association”) as a property owners’ association for the Timeshare Development. See the Amended Declaration at Articles 1.1 and 3.1. The Court finds that the Declaration, and its amendments and bylaws, vest the Association with the authority to levy assessments against the Interval Owners in the Timeshare Development to pay for Common Expenses associated with maintenance of the common elements within such Timeshare Development and operation of the Association. See the Amended Declaration at Articles IV-VI. The Court finds that the Amended Declaration and/or Section 82.013 of the Texas Property Code establishes a contractual and statutory lien against each Interval Owner and Interval in the Condominium Development that secures the payment of all unpaid assessments, late fees, interest and costs of collection incurred by the Association, including attorneys fees (hereinafter referred to as the “Assessment Lien”). See the Amended Declaration at Articles IV-VI. The Court finds Defendant purchased an Interval of the Timeshare DEFAULT JUDGMENT Page 3 Development from Joe Arrigoni on or about October 31, 2013, which was memorialized by a Warranty Deed (the “Deed”). The Court finds that the Deed is recorded in the Condominium Records of Montgomery County, Texas as Document Number 2013134087. The Court finds that the Deed erroneously or fraudulently also conveyed an interest in the Property to which the grantor owned no interest. The Court finds that pursuant to the Deed, Defendant agreed to abide by the Declaration, inclusive of all amendments and supplements, conditions, restrictions, reservations, easements and other matters of record, as well as to perform obligations set forth in accordance with the terms thereof, inclusive of the payment of taxes, assessments and of the other fees related thereto. See the Declaration, Amended Declaration and Bylaws. The Court finds that by and through the Deed, Defendant became an Interval Owner of the following legally described as: ...the appurtenant undivided interest for each Time Period Unit Number conveyed hereby as a tenant-in-common in the Common Elements as same is established and identified in said Declaration and Map, as amended. Excepting therefrom all oil, gas, and mineral rights appurtenant to said Project. This conveyance is subject to and by accepting this Deed Grantee(s) do(es) hereby agree to assume the obligations for payment of real estate taxes for the current year and DEFAULT JUDGMENT Page 4 subsequent years. Further, by accepting this Deed Grantee(s) reservations, easements and other matters of record (2) Declarations for the Project and all amendments and supplements thereto, agrees to perform obligations set forth there in accordance with the terms hereof. The Court finds that the Time Period Unit or Interval was made subject to the Declaration prior to its ownership by Defendant, and the Deed expressly states that the conveyance thereof is made subject to the easements, assessments, restrictions, covenants and covenants of record against the Property. The Court finds that Defendant has failed to pay certain taxes and assessments related to the Interval or the Property and as a result, the Association has engaged in certain collections efforts against Defendant and has incurred costs of collection associated therewith. The Court finds that as of the statement date of December 8, 2020, the total amount due, but unpaid, assessments, late fees, interest, and cost of collection (hereinafter referred to collectively as the “Assessment Delinquency”) owed to the Association by Defendant was $5,465.89. The Court finds that Plaintiff is entitled to judgment against Defendant in the amount of FIVE THOUSAND FOUR HUNDRED SIXTY-FIVE AND 89/100 DOLLARS ($5,465.89), plus equitable pre-judgment interest through January 28, 2021, in the amount of $23.21, accruing at a per diem rate of $0.7488, plus reasonable DEFAULT JUDGMENT Page 5 attorney's fees and expenses to date in the amount of $3,929.55, for a total judgment of NINE THOUSAND SEVEN HUNDRED TWENTY-SEVEN AND 32/100 DOLLARS ($9,727.32), plus costs of court in the amount of $308.67, with interest to accrue on the above sums at the rate of five percent (5%) per annum from the date of judgment until paid in full; plus attorney's fees of $1,500.00 for any Motion for New Trial, $3,500.00 for any appeal to the County Court at Law, $5,000.00 for any appeal to the Court of Appeals, $10,000.00 for a Writ of Error and Response to the Writ of Error to the Supreme Court of Texas, and $10,000.00 if any appeal or Writ of Error is granted to the Supreme Court of Texas, plus all costs of court in such proceedings against Defendant. The Court also finds that Pursuant to Articles IV-VI of the Declaration and/or Section 82.013 of the Texas Property Code, Defendant has a contractual obligation to timely pay all assessments levied by the Association and such other charges authorized by the Declaration and Amended Declaration, such as late fees, interest and costs of collection incurred by the Association, and Defendant’s failure to pay the Assessment Delinquency constitutes a material breach of such contractual obligation. The Court further finds that pursuant to Articles IV-VI of the Declaration and/or Section 82.013 of the Texas Property Code, Defendant’s obligation to pay the Assessment Delinquency is secured by the Association’s Assessment Lien on the DEFAULT JUDGMENT Page 6 Property. IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Plaintiff, LAKE CONROE HOME OWNERS ASSOCIATION, INC. have and recover judgment over and against Defendant, JORDAN DUKE, in the amount of FIVE THOUSAND FOUR HUNDRED SIXTY-FIVE AND 89/100 DOLLARS ($5,465.89), plus equitable pre-judgment interest through January 28, 2021, in the amount of $23.21, accruing at a per diem rate of $0.7488, plus reasonable attorney's fees and expenses to date in the amount of $3,929.55, for a total judgment of NINE THOUSAND SEVEN HUNDRED TWENTY-SEVEN AND 32/100 DOLLARS ($9,727.32), plus costs of court in the amount of $308.67, with interest to accrue on the above sums at the rate of five percent (5%) per annum from the date of judgment until paid in full. IT IS FURTHER, ORDERED, ADJUDGED, AND DECREED that in the event a Motion for New Trial is filed herein or an appeal is filed, Plaintiff have and recover from Defendant, an additional $1,500.00 for any Motion for New Trial, $3,500.00 for any appeal to the County Court at Law, $5,000.00 for any appeal to the Court of Appeals, $10,000.00 for a Writ of Error and Response to the Writ of Error to the Supreme Court of Texas, and $10,000.00 if any appeal or Writ of Error is granted to the Supreme Court of Texas, plus all costs of court in such proceedings against DEFAULT JUDGMENT Page 7 Defendants. IT IS THEREFORE ORDERED THAT Plaintiff may foreclose upon the Assessment Lien and sale of the Interval or property conveyed under the Deed in order to satisfy the portion of the total amount due and owing to the Association that is secured by the Association’s Assessment Lien on the Interval. IT IS FURTHER ORDERED THAT, in accordance with Rule 310 of the Texas Rules of Civil Procedure, after foreclosure of the Interval, a writ of possession should issue and Defendant and anyone taking an interest under Defendant should be dispossessed of possession of the Property. IT IS THEREFORE ORDERED that Plaintiff’s requested declaratory judgment, pursuant to the Uniform Declaratory Judgments Act, that the Defendant’s account pursuant to the Declaration governing the Property is delinquent and due and owing to Plaintiff, is GRANTED. IT IS FURTHER ORDERED and declared that the Deed is void to the extent it conveyed any rights, title or interest to the 2.1576 acres in William C. Clark Survey, Abstract #6 in Montgomery County, Texas Reserve A of April Point to Defendant beyond an Interval Interest. IT IS THEREFORE ORDERED AND DECLARED that Defendant’s only interest in the Property is the appurtenant Interval for which Plaintiff seeks judicial DEFAULT JUDGMENT Page 8 foreclosure and that all rights, title and interest to the real property legally described as 2.1576 acres in William C. Clark Survey, Abstract #6 in Montgomery County, TX Reserve A of April Point is solely owned by Plaintiff. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that except for the Interval conveyed thereby, and upon which foreclosure has been permitted through this order, Defendant owns no interest, rights, or title to the Property described in the Deed recorded in the Condominium Records of Montgomery County, Texas as Document Number 2013134087. IT IS ORDERED, ADJUDGED, DECREED AND DECLARED that Plaintiff is the sole owner of the real property with the legal description of 2.1576 acres in William C. Clark Survey, Abstract #6 in Montgomery County, Texas Reserve A of April Point and referenced in the Deed recorded in the Condominium Records of Montgomery County, Texas as Document Number 2013134087. FOR ALL OF WHICH LET EXECUTION ISSUE. SIGNED ON______________. ______________________________ JUDGE PRESIDING DEFAULT JUDGMENT Page 9