Preview
6/30/2021 10:15 AM
Marilyn Burgess -District Clerk Harris County
Envelope No. 54920384
2021-39238 / Court: 011 By: Cecilia Thayer
Filed: 6/30/2021 10:15 AM
CAUSE NO.
AMERICA’S CHOICE HOME IN THE DISTRICT COURT OF
LOANS, LP
VS. HARRIS COUNTY, TEXAS
MARY SCURLOCK JUDICIAL DISTRICT
AMERICA’S CHOICE HOME LOANS, LP’S ORIGINAL PETITION
TO THE HONROABLE COURT:
Plaintiff AMERICA'S CHOICE HOME LOANS, LP (“America’s Choice” or
“Plaintiff’) files this Original Petition against Defendant Mary Eyvonne Scurlock
(“Defendant” or “Ms, Scurlock”) and in support thereof shows the following:
A. DISCOVERY CONTROL PLAN AND CLAIM FOR RELIEF
1 Counter-Plaintiff seeks monetary relicf over $200,000, but not more than
$1,000,000, and non-monetary relief. See TEX. R. Civ. P. 47(c). Pursuant to Rules 190.1
and 190.3 of the Texas Rules of Civil Procedure, Plaintiff intends to conduct discovery under
Level 2.
B PARTIES
2. Ms. Scurlock is an individual who resides in Harris County, Texas, Ms.
Scurlock can be served at 11511 Boxhill, Houston, Texas 77065.
3 America’s Choice is a domestic limited partnership, with its principal place of
business in Harris County, Texas. America’s Choice is authorized to conduct business in the
State of Texas.
Plaintiff's Original Petition Page |
Cc JURISDICTION AND VENUE
4 Jurisdiction is proper in this Court as the amounts in controversy are within
this Court’s jurisdictional limits. Jurisdiction is also proper because Ms. Scurlock is a Texas
resident and America’s Choice is actively engaged in business in the State of Texas.
5 Venue is proper in Harris County because Scurlock resides in Harris County,
and the principal office of America’s Choice is in Harris County, Texas. See TEX. Clv.
PRAC. & REM. CODE § 15.002(a)(2). Venue is also proper in Harris County because a
substantial part of the events giving rise to this cause of action occurred in Harris County.
See id. § 15.002(a)(1),
D. NOTICE OF CONDITIONS PRECEDENT
6 All conditions precedent necessary to maintain this action have been
performed, have occurred, have been waived, or have been excused,
E BACKGROUND
7 In 2018, Scurlock filed a loan application with America’s Choice to finance
the purchase of residential real property, located at 14515 Cypress Falls Drive, Cypress,
Texas, and described as Lot Twenty-Nine (29), in Block Twelve (12), of Fairwood, Section
Two (2), a subdivision in Harris County, Texas, according to the map or plat thereof,
recorded in volume 345, page 78, of the map and/or plat records of Harris County, Texas (the
“Property”). As part of the loan application process, Scurlock represented to America’s
Choice that the Property would be Scurlock’s primary residence.
8 On or about May 29, 2018, Scurlock executed a promissory note (“Note”) to
America’s Choice for $213,750, plus interest. Tn connection with the loan, Scurlock, as
“Borrower”, signed a deed of trust (“Deed”) granting and conveying a lien upon the Property
to secure the debt owed by Scurlock under the loan (the Note and Deed are collectively, the
“Loan”). The Deed is recorded with the Harris County Clerk under Document No. RP-2018-
236285.
9 The Deed required Scurlock to make the Property her primary residence;
Occupancy. Borrower shall occupy, establish, and use the Property as
Borrower's principal residence within 60 days after the execution of
this Security Instrument and shall continue to occupy the Properly as
Borrower's principal residence for at least ono year after the date of
occupancy, unless lender otherwise agrees in writing, which consent
shall not be unreasonably withheld, or unless extenuating
circumstances exist which are beyond Borrower's control.
The Deed further identified that Scurlock would be in default if she made any material
misrepresentations during the loan application process. Material misrepresentations included
statements concerning Scurlock’s use of the Property as her primary residence:
Borrower’s Loan Application. Borrower shall be in default if, during
the Loan application process, Borrower or any persons or entities acting
at the direction of Borrower or with Borrower's knowledge or consent
gave materially false, misleading, or inaccurate information or
statements to Lender (or failed to provide Lender with material
information) in connection with the Loan, Material misrepresentations
include, but are not limited to, representations concerning Borrower’s
occupancy or the Property as Borrower's principal residence,
10. Ms. Scurlock never made the Property her primary residence.
ll. Ms. Scurlock’s grandchild resided at the Property.
12. The Loan Origination Date was May 25, 2018. Scurlock’s first payment was
due on July 1, 2018. Scurlock stopped making payments on the loan before May 2019.
13. In 2019, America’s Choice attempted to foreclose on the property but was
stopped from doing so by a temporary restraining order filed by Ms. Scurlock in Cause No.
2019-79614, in the 152" Judicial District Court of Harris County, Texas (the “Scurlock
lawsuit”).
14, America’s Choice filed a counterclaim in the Scurlock lawsuit for breach of
contract and other damages.
15, On October 5, 2020, Ms. Scurlock signed a settlement agreement agreeing to
either paying off the loan by November 30, 2020 or agreeing to sign a deed in lieu of
foreclosure and a Promissory Note for $50,000 with payments due commencing December 1,
2020. See Exhibit 1.
16. Although Ms. Scurlock did sign the deed, she has failed to make timely or
complete payments on the Promissory Note. On January 11, 2021 a demand letter was sent
to Ms. Scurlock requiring that she bring her payments up to date. See Exhibit 2, She has
failed to make the required payments.
F. CLAIMS
L Breach of Contract-Settlement Agreement and Promissory Note
17. Ms. Scurlock entered into two contracts with America’s Choice. The first
contract is a settlement agreement wherein she agreed to make payments on a Promissory
Note as part of the settlement of the Scurlock Lawsuit. Additionally, she agreed to the
“validity and enforceability of the Promissory Note.” Further, Ms. Scurlock entered into a
Promissory Note with America’s Choice wherein she agreed to pay the sum of $50,000 in
equal installments of $555,10 per month (at an interest rate of 6% per annum) beginning
December 1, 2020. See Exhibit B to Exhibit 1. The note states:
ce of ime cerest or prineipal when due
thi: ae Note, the entire principal
d payable without further
all not constitute a
alt
ae
See Exhibit B to Exhibit 1
18, Ms. Scurlock has failed to make timely payments on the Promissory Note
and has therefore defaulted on the Promissory Note By failing to pay the required
amounts, Ms. Scurlock has likewise breached the Settlement Agreement with America’s
Choice. As a proximate result of such breaches, America’s Choice has been damaged in
the amount of $50,126.26 as of April 30, 2021 with an accruing daily interest amount of
$8.33 per day.
U. reach of Contract-Deed of Trust Damage.
19 Additionally, Ms. Scurlock has breached her Deed of Trust associated with the
Property. The Deed of Trust requires that all property tax payments during the life of the
mortgage. See Exhibit 3. Ms. Scurlock failed to make payments for 2019 or 2020 in the
total amount of $7,175.43
20. The Deed of Trust requires that Ms. Scurlock do the following
7% Preservation, Maintenance and Protection of the Property; Inspections. Borrower shall not destroy, damage or
impair ine Property, allow the Property
to deteriorate or commit wasta on the Property, Whather or not Borrower is rasiding
in the Property, Borrower shall maintain the Property in order to prevent the Proparty from deteriorating or decreasing
in value due to its condition. Unless it is determined pursuant to Section 5 that repair or restoration is not economically
leastble, Borrower shall promptly repair ihe Property if damaged to avoid further deterioration or damage. If insurance
or condemnation proceeds are paid in connection with damage to, or the taking of, the Property, rower shall be
sponsible for repalring or restoring the Property only if Lender has released proceeds tor such purposes, Lender may
disburse proceads for the repairs and restoration in a single payment or in a serles of progress payments as the work Is
completed. If the insurance or condemnation proceeds are not sufficient to repair or restore the Proparty, Borrower is not
teliaved of Borrowar’s obliaation for the completion of stich repalr or restoration.
See Exhibit 3
21 Upon receipt of the Property following the deed in lieu of foreclosure,
America’s Choice discovered that the Property had been damage in several ways. There are
damages to the interior, exterior and fixtures. The amount of these damages is currently
being assessed. As a direct and proximate result of Ms. Scurlock’s breach of the Deed of
Trust, America’s Choice has been damaged by the amount of repairs required to fix the
damaged portions of the Property.
G. ATTORNEYS’ FEES
22. America’s Choice is entitled to recover its reasonable and necessary attorneys’
fees under Texas Civil Practice and Remedies Code § 38.00land Texas Business and
Commerce Code § 27.01.
23, Request is made for all costs and reasonable and necessary attorneys’ fees
incurred by or on behalf of America’s Choice, including all fees necessary in the event of an
appeal of this cause to the Court of Appeals and the Supreme Court of Texas, as well as
attorneys’ fees incurred in connection with collecting on the judgment, as the Court deems
equitable and just.
H JURY DEMAND
24, America’s Choice demands a trial by jury. America’s Choice tenders the
requisite jury fee with the filing of this pleading.
PRAYER
WHEREFORE, Plaintiff AMERICA'S CHOICE HOME LOANS, LP respectfully
requests that upon trial or other final hearing of this matter, that judgment be entered against
Defendant Mary Eyvonne Scurlock for the following relief
a. Actual damages;
b, Reasonable and necessary attorney’s fees and costs;
C, Applicable pre-judgment interest;
d. Applicable post-judgment interest at the maximum legal rate; and
c. Such other and further relief to which America’s Choice is justly
entitled.
Respectfully submitted,
WEYCER KAPLAN PULASKI & ZUBER, P C
By: /s/ Murphy S. Klasing
Murphy S. Klasing
State Bar No. 00791034
mklasing@wkpz.com
Megan R. Brannigan
State Bar No. 24092166
mbrannigan@wkpz.com
24 Greenway Plaza, Suite 2050
Houston, Texas 77046
Telephone: (713) 961-9045
Facsimile: (713) 961-5341
ATTORNEYS FOR PLAINTIFF
Preview
6/30/2021 10:15 AM Marilyn Burgess -District Clerk Harris County Envelope No. 54920384 2021-39238 / Court: 011 By: Cecilia Thayer Filed: 6/30/2021 10:15 AM CAUSE NO. AMERICA’S CHOICE HOME IN THE DISTRICT COURT OF LOANS, LP VS. HARRIS COUNTY, TEXAS MARY SCURLOCK JUDICIAL DISTRICT AMERICA’S CHOICE HOME LOANS, LP’S ORIGINAL PETITION TO THE HONROABLE COURT: Plaintiff AMERICA'S CHOICE HOME LOANS, LP (“America’s Choice” or “Plaintiff’) files this Original Petition against Defendant Mary Eyvonne Scurlock (“Defendant” or “Ms, Scurlock”) and in support thereof shows the following: A. DISCOVERY CONTROL PLAN AND CLAIM FOR RELIEF 1 Counter-Plaintiff seeks monetary relicf over $200,000, but not more than $1,000,000, and non-monetary relief. See TEX. R. Civ. P. 47(c). Pursuant to Rules 190.1 and 190.3 of the Texas Rules of Civil Procedure, Plaintiff intends to conduct discovery under Level 2. B PARTIES 2. Ms. Scurlock is an individual who resides in Harris County, Texas, Ms. Scurlock can be served at 11511 Boxhill, Houston, Texas 77065. 3 America’s Choice is a domestic limited partnership, with its principal place of business in Harris County, Texas. America’s Choice is authorized to conduct business in the State of Texas. Plaintiff's Original Petition Page | Cc JURISDICTION AND VENUE 4 Jurisdiction is proper in this Court as the amounts in controversy are within this Court’s jurisdictional limits. Jurisdiction is also proper because Ms. Scurlock is a Texas resident and America’s Choice is actively engaged in business in the State of Texas. 5 Venue is proper in Harris County because Scurlock resides in Harris County, and the principal office of America’s Choice is in Harris County, Texas. See TEX. Clv. PRAC. & REM. CODE § 15.002(a)(2). Venue is also proper in Harris County because a substantial part of the events giving rise to this cause of action occurred in Harris County. See id. § 15.002(a)(1), D. NOTICE OF CONDITIONS PRECEDENT 6 All conditions precedent necessary to maintain this action have been performed, have occurred, have been waived, or have been excused, E BACKGROUND 7 In 2018, Scurlock filed a loan application with America’s Choice to finance the purchase of residential real property, located at 14515 Cypress Falls Drive, Cypress, Texas, and described as Lot Twenty-Nine (29), in Block Twelve (12), of Fairwood, Section Two (2), a subdivision in Harris County, Texas, according to the map or plat thereof, recorded in volume 345, page 78, of the map and/or plat records of Harris County, Texas (the “Property”). As part of the loan application process, Scurlock represented to America’s Choice that the Property would be Scurlock’s primary residence. 8 On or about May 29, 2018, Scurlock executed a promissory note (“Note”) to America’s Choice for $213,750, plus interest. Tn connection with the loan, Scurlock, as “Borrower”, signed a deed of trust (“Deed”) granting and conveying a lien upon the Property to secure the debt owed by Scurlock under the loan (the Note and Deed are collectively, the “Loan”). The Deed is recorded with the Harris County Clerk under Document No. RP-2018- 236285. 9 The Deed required Scurlock to make the Property her primary residence; Occupancy. Borrower shall occupy, establish, and use the Property as Borrower's principal residence within 60 days after the execution of this Security Instrument and shall continue to occupy the Properly as Borrower's principal residence for at least ono year after the date of occupancy, unless lender otherwise agrees in writing, which consent shall not be unreasonably withheld, or unless extenuating circumstances exist which are beyond Borrower's control. The Deed further identified that Scurlock would be in default if she made any material misrepresentations during the loan application process. Material misrepresentations included statements concerning Scurlock’s use of the Property as her primary residence: Borrower’s Loan Application. Borrower shall be in default if, during the Loan application process, Borrower or any persons or entities acting at the direction of Borrower or with Borrower's knowledge or consent gave materially false, misleading, or inaccurate information or statements to Lender (or failed to provide Lender with material information) in connection with the Loan, Material misrepresentations include, but are not limited to, representations concerning Borrower’s occupancy or the Property as Borrower's principal residence, 10. Ms. Scurlock never made the Property her primary residence. ll. Ms. Scurlock’s grandchild resided at the Property. 12. The Loan Origination Date was May 25, 2018. Scurlock’s first payment was due on July 1, 2018. Scurlock stopped making payments on the loan before May 2019. 13. In 2019, America’s Choice attempted to foreclose on the property but was stopped from doing so by a temporary restraining order filed by Ms. Scurlock in Cause No. 2019-79614, in the 152" Judicial District Court of Harris County, Texas (the “Scurlock lawsuit”). 14, America’s Choice filed a counterclaim in the Scurlock lawsuit for breach of contract and other damages. 15, On October 5, 2020, Ms. Scurlock signed a settlement agreement agreeing to either paying off the loan by November 30, 2020 or agreeing to sign a deed in lieu of foreclosure and a Promissory Note for $50,000 with payments due commencing December 1, 2020. See Exhibit 1. 16. Although Ms. Scurlock did sign the deed, she has failed to make timely or complete payments on the Promissory Note. On January 11, 2021 a demand letter was sent to Ms. Scurlock requiring that she bring her payments up to date. See Exhibit 2, She has failed to make the required payments. F. CLAIMS L Breach of Contract-Settlement Agreement and Promissory Note 17. Ms. Scurlock entered into two contracts with America’s Choice. The first contract is a settlement agreement wherein she agreed to make payments on a Promissory Note as part of the settlement of the Scurlock Lawsuit. Additionally, she agreed to the “validity and enforceability of the Promissory Note.” Further, Ms. Scurlock entered into a Promissory Note with America’s Choice wherein she agreed to pay the sum of $50,000 in equal installments of $555,10 per month (at an interest rate of 6% per annum) beginning December 1, 2020. See Exhibit B to Exhibit 1. The note states: ce of ime cerest or prineipal when due thi: ae Note, the entire principal d payable without further all not constitute a alt ae See Exhibit B to Exhibit 1 18, Ms. Scurlock has failed to make timely payments on the Promissory Note and has therefore defaulted on the Promissory Note By failing to pay the required amounts, Ms. Scurlock has likewise breached the Settlement Agreement with America’s Choice. As a proximate result of such breaches, America’s Choice has been damaged in the amount of $50,126.26 as of April 30, 2021 with an accruing daily interest amount of $8.33 per day. U. reach of Contract-Deed of Trust Damage. 19 Additionally, Ms. Scurlock has breached her Deed of Trust associated with the Property. The Deed of Trust requires that all property tax payments during the life of the mortgage. See Exhibit 3. Ms. Scurlock failed to make payments for 2019 or 2020 in the total amount of $7,175.43 20. The Deed of Trust requires that Ms. Scurlock do the following 7% Preservation, Maintenance and Protection of the Property; Inspections. Borrower shall not destroy, damage or impair ine Property, allow the Property to deteriorate or commit wasta on the Property, Whather or not Borrower is rasiding in the Property, Borrower shall maintain the Property in order to prevent the Proparty from deteriorating or decreasing in value due to its condition. Unless it is determined pursuant to Section 5 that repair or restoration is not economically leastble, Borrower shall promptly repair ihe Property if damaged to avoid further deterioration or damage. If insurance or condemnation proceeds are paid in connection with damage to, or the taking of, the Property, rower shall be sponsible for repalring or restoring the Property only if Lender has released proceeds tor such purposes, Lender may disburse proceads for the repairs and restoration in a single payment or in a serles of progress payments as the work Is completed. If the insurance or condemnation proceeds are not sufficient to repair or restore the Proparty, Borrower is not teliaved of Borrowar’s obliaation for the completion of stich repalr or restoration. See Exhibit 3 21 Upon receipt of the Property following the deed in lieu of foreclosure, America’s Choice discovered that the Property had been damage in several ways. There are damages to the interior, exterior and fixtures. The amount of these damages is currently being assessed. As a direct and proximate result of Ms. Scurlock’s breach of the Deed of Trust, America’s Choice has been damaged by the amount of repairs required to fix the damaged portions of the Property. G. ATTORNEYS’ FEES 22. America’s Choice is entitled to recover its reasonable and necessary attorneys’ fees under Texas Civil Practice and Remedies Code § 38.00land Texas Business and Commerce Code § 27.01. 23, Request is made for all costs and reasonable and necessary attorneys’ fees incurred by or on behalf of America’s Choice, including all fees necessary in the event of an appeal of this cause to the Court of Appeals and the Supreme Court of Texas, as well as attorneys’ fees incurred in connection with collecting on the judgment, as the Court deems equitable and just. H JURY DEMAND 24, America’s Choice demands a trial by jury. America’s Choice tenders the requisite jury fee with the filing of this pleading. PRAYER WHEREFORE, Plaintiff AMERICA'S CHOICE HOME LOANS, LP respectfully requests that upon trial or other final hearing of this matter, that judgment be entered against Defendant Mary Eyvonne Scurlock for the following relief a. Actual damages; b, Reasonable and necessary attorney’s fees and costs; C, Applicable pre-judgment interest; d. Applicable post-judgment interest at the maximum legal rate; and c. Such other and further relief to which America’s Choice is justly entitled. Respectfully submitted, WEYCER KAPLAN PULASKI & ZUBER, P C By: /s/ Murphy S. Klasing Murphy S. Klasing State Bar No. 00791034 mklasing@wkpz.com Megan R. Brannigan State Bar No. 24092166 mbrannigan@wkpz.com 24 Greenway Plaza, Suite 2050 Houston, Texas 77046 Telephone: (713) 961-9045 Facsimile: (713) 961-5341 ATTORNEYS FOR PLAINTIFF