Preview
moral turpitude.
and SWORN before me on the�ay of October 2021, to certify which,
and official scat.
Notary Public in and for the State of Texas
Respectfully submitted,
Isl Heather
Heather N. Sutton, SBN: 24072378
McGUIREWOODS LLP
McKinney A venue. Suite 1400
DaJlas, Texas 75201
Facsimile: 214.932.6499
ATTORNEYS FOR THE BANK OF NEW
YORK MELLON, AS TRUSTEE, and
OF SERVICE
Mr. and
Texas 77061
Isl Heather N. Sutton
Heather N. Sutton
DEFENl)ANTS/C0UNTf:H-l'tA!i'fflFFS' RF.TURN OF SERVICE Pagel ofJ
Cause No. Jones v. n,e Bm1k q{N. Y. Mellon, eta/.
CAUSE NO. 2019-71004
GUY JONES and MARLA JONES IN THE DISTRICT COURT
Plaintiffs,
190th JUDICIAL DISTRICT
E BANK OF NEW YORK MELLON
F/K/A THE BANK OF NEW YORK, AS
TRUSTEE FOR CERTIFICATEHOLDERS
OF CWABS, INC. and NATIONSTAR
MORTGAGE LLC D/B/A MR. COOPER
Defendants. HARRIS COUNTY, TEXAS
FENDANTS THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW
YORK, AS TRUSTEE FOR CERTIFICATEHOLDERS OF CWABS, INC., AND
NATIONSTAR MORTGAGE LLC D/B/A MR. COOPER’S SECOND AMENDED
ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM
efendants The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for
Certificateholders of CWABS, Inc. (“BNY Mellon”) and Nationstar Mortgage LLC d/b/a Mr.
Cooper (“Nationstar”) (collectively, the “Defendants”) now file this Second mended Answer,
Affirmative Defenses and Counterclaim to the First Amended Petition filed by laintiffs Guy Jones
and Marla Jones (“Plaintiffs”) as follows:
GENERAL DENIAL
Pursuant to Texas Rule of Civil Procedure 92, Defendants deny generally, each and every,
all and singular, the allegations of Plaintiffs’ First Amended Petition and demand strict proof
thereof.
AFFIRMATIVE DEFENSES
Defendants also assert the following affirmative defenses:
Defendants specifically deny all conditions precedent to Plaintiffs’ claims for
recovery have occurred or been met.
DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page 1 of 10
Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al.
Plaintiffs fail to state a cause of action upon which relief can be granted, and
Plaintiffs’ claims fail as a matter of law.
Plaintiffs’ claims are barred, in whole or in part, to the extent Plaintiffs’ own acts
or omissions caused or contributed to their alleged injuries. Defendants hereby invoke Chapter 33
of the Texas Civil Practice & Remedies Code and requests the trier of fact determine the
proportionate responsibility of Plaintiffs and any settling defendant and any responsible third
parties for the damages allegedly suffered by Plaintiffs and to award Plaintiffs’ judgment, if any,
against Defendants for only those damages (if any) for which they are found to be proportionately
responsible.
Plaintiffs’ claims are barred, in whole or in part, for Plaintiffs’ failure to mitigate
their alleged damages.
Plaintiffs’ damages, if any, were caused or contributed to by their own prior breach
of contract.
Plaintiffs’ claims are barred, in whole or in part, by the statute of frauds or parol
evidence rule.
Plaintiffs’ claims are barred, in whole or in part, by the doctrine of contractual
subrogation.
Plaintiffs’ claims are barred, in whole or in part, by the doctrine of equitable
subrogation.
Plaintiffs’ claims are barred, in whole or in part, by the doctrines of waiver,
ratification, laches, acquiescence, quasi estoppel and/or estoppel.
Plaintiffs’ claims are barred, in whole or in part, by the applicable statute of
limitations.
DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page of 10
Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al.
To the extent Plaintiffs seek punitive damages claims, such a claim would be
barred, in whole or in part by the Due Process Clause and the Excessive Fines Clause of the United
States Constitution, Chapter 41 of the Texas Civil Practice & Remedies Code, or any other
applicable law.
Defendants reserve the right to amend this answer to assert additional affirmative
defenses and/or supplement, alter or change this answer as may be warranted by the discovery of
nformation during Defendants’ investigation and litigation of this lawsuit.
COUNTERCLAIM
The Parties reached an agreement to settle all claims asserted in this matter. Despite
repeated contact with Plaintiff they refuse requests to execute the settlement agreement and
associated documents required for dismissal of this case. Defendants; therefore, file this additional
counterclaim against Plaintiffs, asserting as follows:
Parties
Nationstar is a foreign limited liability company organized and existing under the
laws of the State of Delaware. Its home office address is 8950 Cypress Waters Boulevard, Coppell,
Texas 75019.
BNY Mellon is a foreign entity, doing business under the laws of the State of Texas,
and may be served with process through its Registered Agent, CT Corporation System, 1999 Bryan
Street, Suite No. 900, Dallas, Texas 75201.
Plaintiffs, a married couple, are domiciled in Texas and reside at 7025 East Alpine
Drive, Houston, Texas 77061 (the “Property”). Both have made appearances in this cause for all
purposes and may be served at their residence7025 East Alpine Drive, Houston Texas 77061
DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page of 10
Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al.
Jurisdiction and Venue
The subject matter in controversy is within the jurisdictional limits of this Court.
Venue in Harris County is proper under Section 15.011 of the Texas Civil Practice
and Remedies Code because the Property is located in Harris County.
Plaintiffs agree that this court has jurisdiction and that venue is proper. (First Am.
Pet. at .)
Facts
Plaintiffs own the Property, subject to the home equity loan at issue.
In 2003, Plaintiffs obtained a home equity loan encumbering the Property in the
original principal amount of $131,900.00 (“Loan”) from Aames Funding Corp. d/b/a Aames Home
Loan. The terms of the Loan are set forth in a Texas Home Equity Note (“Note”) and Texas Home
Equity Security Instrument recorded as File No. W744034 in the real property records of Harris
County, Texas (“Security Instrument”). The Security Instrument has been assigned of record to
Nationstar.
Immediately prior to the closing of the Loan, valid liens (the “Prior Liens”) existed
on the Property.
As a result of delinquencies ad valorem taxes on the Property that began in
approximately 1991 a number of taxing authorities filed suit to foreclose the lien securing those
delinquent ad valorem taxes. This suit was filed under Cause No. 2002 21405, and was styled
Harris Independent Scholl District et al. v. Guy W. Jones in the 281st Judicial District Court of
Harris County, Texas. These delinquent ad valorem taxes constituted a lien that burdened all
interests of any owner of any interest in the Property. A portion ($14,182.64) of the proceeds of
the Loan was used to pay off the tax lien, resulting in a release of the same.
DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page of 10
Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al.
Specifically, out of the proceeds of the Loan, and at the special instance and request
of Plaintiffs, there was paid and fully retired delinquent ad valorem taxes owing the County of
Harris, State of Texas in the amount of $8,074.84 and to the Houston Independent School District
n the amount of $6,107.80. These delinquent ad valorem taxes were secured by a first and superior
lien upon the Property. By virtue of such payments, and successive assignments of the Loan,
Defendants are equitably subrogated to the lien position of the taxing authorities, together with
interest compounded annually on such amounts from the date paid to the time of judgment herein.
Furthermore, proceeds from the Loan were also used to pay off and release a deed
of trust dated December 8, 1994 and recorded as Instrument No. R186382 in the real property
records of Harris County, Texas (“ Security Instrument”). A portion ($) of the
proceeds of the Loan was used to pay off the 1994 Security Instrument, resulting in a release the
same. Defendants are equitably subrogated to th lien position also, together with interest
compounded annually on such amounts from the date paid to the time of judgment herein
The Loan requires repayment of the principal amount of $131,900 plus interest in
monthly installments due on the first day of each month. The Security Instrument secures
repayment of the Loan with a lien on the Property.
Plaintiffs are in default on the Loan for their failure to pay multiple monthly
installments on the Loan.
Further, On March 4, 2021, Plaintiffs and Defendants, through counsel at
mediation, reached an amicable resolution of this matter, thereby settling all claims asserted in this
lawsuit.
On or about March 23, 2021, Defendants circulated comprehensive settlement
documents to Plaintiffs’ counsel.
DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page of 10
Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al.
On or about April 27, 2021, a Notice of Settlement was filed with this Court.
Attached to the Notice was an executed copy of the mediated settlement agreement (the
Settlement Memorandum”) signed by counsel on March 4, 2021, said document evidencing the
agreement between the Parties.
The Settlement Memorandum clearly states that “Counsel for Defendants shall
deliver drafts of all further settlement documents to the other parties. The parties agree to
cooperate with each other in the drafting and execution of such additional documents as are
easonably requested or required to implement the terms and spirit of this agreement.” (Settlement
Memorandum at 1.) The Memorandum was signed by counsel and expressly required execution
of a final/formal settlement agreement at a later date
On April 28, 2021, the mediator also filed a letter with the Court confirming that
settlement was reached at mediation.
On or about May 3, 2021, upon information and belief, Plaintiffs terminated
counsel thatrepresented them in this matter, the Lane Law Firm, PLLC.
On May 4, 2021, the Lane Law Firm, PLLC filed an Unopposed Motion to
Withdraw as Counsel for Plaintiffs, which the Court granted on May 18, 2021
The mediated settlement agreement resolved all claims between the Parties.
As a general matter, “[s]ettlement agreements are highly favored.” Forest Oil
Corp. v. McAllen, 268 S.W.3d 51, 61 (Tex. 2008). A court may enforce a settlement agreement
that complies with requirements that the essential terms be in writing. Padilla v. LaFrance, 907
S.W.2d 454, 462 (Tex. 1995). After proper notice and hearing, a court may enforce a settlement
agreement through a motion seeking enforcement of the settlement agreement. Neasbitt v. Warren
105 S.W.3d 113, 117 (Tex. App.Fort Worth 2003, no pet.); see also Mantas v. Fifth Court of
DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page of 10
Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al.
Appeals, 925 S.W.2d 656, 658 (Tex. 1996) (orig. proceeding) (“Where the settlement dispute
arises while the trial court has jurisdiction over the underlying action, a claim to enforce th
settlement agreement should, if possible, be asserted in that court under the original proceeding
number.”).
In this case, the settlement agreement clearly sets out and contemplates an
agreement between the Parties as to resolution of this case. Specifically, the agreement addressed
terms that are essential to a settlement: (i) the character and natures of the releases; (ii) monetary
terms; (iii) resolution of all claims and controversies; and (iv) the effect that the settlement
agreement may have on Plaintiffs and Defendants.
Here, it is clear that the essential elements have been agreed to such that
enforcement of the settlement agreement and associated documents referenced therein for
dismissal of this lawsuit is appropriate.
Defendants request that the Court order Plaintiffs to execute settlement documents
forwarded to their counsel on March 23, 2021.To date, Plaintiffs (the Joneses) have not executed
the comprehensive settlement documents that were provided to them by the Lane Law Firm.
For these reasons, the Court should order Plaintiffs to execute and comply with the
settlement agreement and associated documents required for dismissal of this case, and should
further dismiss this matter with prejudice
First Cause of Action: Equitable Subrogation
Defendants incorporate the allegations in Facts paragraphs 20 27 above.
Defendants seek a declaration that they are equitably subrogated to the Prior Liens,
including the following amounts: the $ from the proceeds of the Loan used to pay off
the Prior Liens, plus interest at the statutory rate on that amount since June 4, 2003
DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page of 10
Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al.
SecondCause of Action: Breach of Contract / Specific Performance
Defendants incorporate the allegations in Facts paragraphs above.
Defendants request that the Court order Plaintiffs to execute settlement documents
forwarded to their counsel on March 23, 2021.
Attorney’s Fees and Court Costs
Defendants incorporate the allegations in Factsparagraphs 20 above.
Defendants seek recovery of their costs and reasonable and necessary attorney’s
fees pursuant to Chapter 37 of the Texas Civil Practice and Remedies Code. See Wells Fargo
Bank, N.A. v. Murphy, 458 S.W.3d 912, 918 19 (Tex. 2015).
Prayer
WHEREFORE, Defendants pray that, upon final hearing, they be granted the following
relief:
(1) an order and judgment that Plaintiffs take nothing by their claims;
(2) a judgment declaring that Defendants are equitably subrogated to the Prior Liens in
the amount of $21,543.53, plus interest at the statutory rate on that amount since
June 4, 2003;
(3) an order and judgment (i)awarding Defendants their debt, damages, and costs with
respect to any equitably subrogated lien; (ii)providing for the judicial foreclosure
of such lien; and (iii)providing that an order of sale issue to any sheriff or constable
within the State of Texas, directing him to seize and sell the Property as under
execution, in satisfaction of the judgment;
(4) a writ of possession against Plaintiffs and all persons claiming an interest in the
subject property under Plaintiffs;
(5) an order directing the sheriff or constable executing the order of sale to place the
purchaser of the subject property at the foreclosure sale in possession of the subject
property within thirty (30) days after the sale;
(6) pre and/or post judgment interest, as applicable;
DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page of 10
Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al.
(7) a judgment declaring that Defendants ecifically requiring Plaintiffs to execute all
documents necessary to effectuate the Settlement Agreement described in the
SettlementMemorandum
(8) reasonable and necessary attorney’s fees;
(9) costs; and
(10) all other relief, in law or equity, to which Defendants may be justly entitled.
Dated: August Respectfully submitted,
/s/ Matthew D. Durham
Matthew D. Durham, SBN:
mail: mdurham@mcguirewoods.com
UIRE OODS
2000 McKinney Avenue, Suite 1400
Dallas, Texas 75201
Telephone: (214) 932 6400
Facsimile: (214) 932 6499
ATTORNEYS FOR THE BANK OF NEW
YORK MELLON F/K/A THE BANK OF
NEW YORK, AS TRUSTEE FOR
CERTIFICATEHOLDERS OF CWABS, INC.,
andNATIONSTAR MORTGAGE LLC
D/B/A MR. COOPER
DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page of 10
Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al.
CERTIFICATE OF SERVICE
The undersigned attorney certifies that, on August , a copy of the foregoing
instrument was served via U.S. Mail and Federal Express to
Mr. and Mrs. Guy Jones
7025 East Alpine Drive
Houston, Texas 77061
Plaintiffs
/s/ Matthew D. Durham
Matthew D. Durham
DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page 10 of 10
Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al.
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moral turpitude. and SWORN before me on the�ay of October 2021, to certify which, and official scat. Notary Public in and for the State of Texas Respectfully submitted, Isl Heather Heather N. Sutton, SBN: 24072378 McGUIREWOODS LLP McKinney A venue. Suite 1400 DaJlas, Texas 75201 Facsimile: 214.932.6499 ATTORNEYS FOR THE BANK OF NEW YORK MELLON, AS TRUSTEE, and OF SERVICE Mr. and Texas 77061 Isl Heather N. Sutton Heather N. Sutton DEFENl)ANTS/C0UNTf:H-l'tA!i'fflFFS' RF.TURN OF SERVICE Pagel ofJ Cause No. Jones v. n,e Bm1k q{N. Y. Mellon, eta/. CAUSE NO. 2019-71004 GUY JONES and MARLA JONES IN THE DISTRICT COURT Plaintiffs, 190th JUDICIAL DISTRICT E BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR CERTIFICATEHOLDERS OF CWABS, INC. and NATIONSTAR MORTGAGE LLC D/B/A MR. COOPER Defendants. HARRIS COUNTY, TEXAS FENDANTS THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR CERTIFICATEHOLDERS OF CWABS, INC., AND NATIONSTAR MORTGAGE LLC D/B/A MR. COOPER’S SECOND AMENDED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM efendants The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for Certificateholders of CWABS, Inc. (“BNY Mellon”) and Nationstar Mortgage LLC d/b/a Mr. Cooper (“Nationstar”) (collectively, the “Defendants”) now file this Second mended Answer, Affirmative Defenses and Counterclaim to the First Amended Petition filed by laintiffs Guy Jones and Marla Jones (“Plaintiffs”) as follows: GENERAL DENIAL Pursuant to Texas Rule of Civil Procedure 92, Defendants deny generally, each and every, all and singular, the allegations of Plaintiffs’ First Amended Petition and demand strict proof thereof. AFFIRMATIVE DEFENSES Defendants also assert the following affirmative defenses: Defendants specifically deny all conditions precedent to Plaintiffs’ claims for recovery have occurred or been met. DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page 1 of 10 Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al. Plaintiffs fail to state a cause of action upon which relief can be granted, and Plaintiffs’ claims fail as a matter of law. Plaintiffs’ claims are barred, in whole or in part, to the extent Plaintiffs’ own acts or omissions caused or contributed to their alleged injuries. Defendants hereby invoke Chapter 33 of the Texas Civil Practice & Remedies Code and requests the trier of fact determine the proportionate responsibility of Plaintiffs and any settling defendant and any responsible third parties for the damages allegedly suffered by Plaintiffs and to award Plaintiffs’ judgment, if any, against Defendants for only those damages (if any) for which they are found to be proportionately responsible. Plaintiffs’ claims are barred, in whole or in part, for Plaintiffs’ failure to mitigate their alleged damages. Plaintiffs’ damages, if any, were caused or contributed to by their own prior breach of contract. Plaintiffs’ claims are barred, in whole or in part, by the statute of frauds or parol evidence rule. Plaintiffs’ claims are barred, in whole or in part, by the doctrine of contractual subrogation. Plaintiffs’ claims are barred, in whole or in part, by the doctrine of equitable subrogation. Plaintiffs’ claims are barred, in whole or in part, by the doctrines of waiver, ratification, laches, acquiescence, quasi estoppel and/or estoppel. Plaintiffs’ claims are barred, in whole or in part, by the applicable statute of limitations. DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page of 10 Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al. To the extent Plaintiffs seek punitive damages claims, such a claim would be barred, in whole or in part by the Due Process Clause and the Excessive Fines Clause of the United States Constitution, Chapter 41 of the Texas Civil Practice & Remedies Code, or any other applicable law. Defendants reserve the right to amend this answer to assert additional affirmative defenses and/or supplement, alter or change this answer as may be warranted by the discovery of nformation during Defendants’ investigation and litigation of this lawsuit. COUNTERCLAIM The Parties reached an agreement to settle all claims asserted in this matter. Despite repeated contact with Plaintiff they refuse requests to execute the settlement agreement and associated documents required for dismissal of this case. Defendants; therefore, file this additional counterclaim against Plaintiffs, asserting as follows: Parties Nationstar is a foreign limited liability company organized and existing under the laws of the State of Delaware. Its home office address is 8950 Cypress Waters Boulevard, Coppell, Texas 75019. BNY Mellon is a foreign entity, doing business under the laws of the State of Texas, and may be served with process through its Registered Agent, CT Corporation System, 1999 Bryan Street, Suite No. 900, Dallas, Texas 75201. Plaintiffs, a married couple, are domiciled in Texas and reside at 7025 East Alpine Drive, Houston, Texas 77061 (the “Property”). Both have made appearances in this cause for all purposes and may be served at their residence7025 East Alpine Drive, Houston Texas 77061 DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page of 10 Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al. Jurisdiction and Venue The subject matter in controversy is within the jurisdictional limits of this Court. Venue in Harris County is proper under Section 15.011 of the Texas Civil Practice and Remedies Code because the Property is located in Harris County. Plaintiffs agree that this court has jurisdiction and that venue is proper. (First Am. Pet. at .) Facts Plaintiffs own the Property, subject to the home equity loan at issue. In 2003, Plaintiffs obtained a home equity loan encumbering the Property in the original principal amount of $131,900.00 (“Loan”) from Aames Funding Corp. d/b/a Aames Home Loan. The terms of the Loan are set forth in a Texas Home Equity Note (“Note”) and Texas Home Equity Security Instrument recorded as File No. W744034 in the real property records of Harris County, Texas (“Security Instrument”). The Security Instrument has been assigned of record to Nationstar. Immediately prior to the closing of the Loan, valid liens (the “Prior Liens”) existed on the Property. As a result of delinquencies ad valorem taxes on the Property that began in approximately 1991 a number of taxing authorities filed suit to foreclose the lien securing those delinquent ad valorem taxes. This suit was filed under Cause No. 2002 21405, and was styled Harris Independent Scholl District et al. v. Guy W. Jones in the 281st Judicial District Court of Harris County, Texas. These delinquent ad valorem taxes constituted a lien that burdened all interests of any owner of any interest in the Property. A portion ($14,182.64) of the proceeds of the Loan was used to pay off the tax lien, resulting in a release of the same. DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page of 10 Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al. Specifically, out of the proceeds of the Loan, and at the special instance and request of Plaintiffs, there was paid and fully retired delinquent ad valorem taxes owing the County of Harris, State of Texas in the amount of $8,074.84 and to the Houston Independent School District n the amount of $6,107.80. These delinquent ad valorem taxes were secured by a first and superior lien upon the Property. By virtue of such payments, and successive assignments of the Loan, Defendants are equitably subrogated to the lien position of the taxing authorities, together with interest compounded annually on such amounts from the date paid to the time of judgment herein. Furthermore, proceeds from the Loan were also used to pay off and release a deed of trust dated December 8, 1994 and recorded as Instrument No. R186382 in the real property records of Harris County, Texas (“ Security Instrument”). A portion ($) of the proceeds of the Loan was used to pay off the 1994 Security Instrument, resulting in a release the same. Defendants are equitably subrogated to th lien position also, together with interest compounded annually on such amounts from the date paid to the time of judgment herein The Loan requires repayment of the principal amount of $131,900 plus interest in monthly installments due on the first day of each month. The Security Instrument secures repayment of the Loan with a lien on the Property. Plaintiffs are in default on the Loan for their failure to pay multiple monthly installments on the Loan. Further, On March 4, 2021, Plaintiffs and Defendants, through counsel at mediation, reached an amicable resolution of this matter, thereby settling all claims asserted in this lawsuit. On or about March 23, 2021, Defendants circulated comprehensive settlement documents to Plaintiffs’ counsel. DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page of 10 Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al. On or about April 27, 2021, a Notice of Settlement was filed with this Court. Attached to the Notice was an executed copy of the mediated settlement agreement (the Settlement Memorandum”) signed by counsel on March 4, 2021, said document evidencing the agreement between the Parties. The Settlement Memorandum clearly states that “Counsel for Defendants shall deliver drafts of all further settlement documents to the other parties. The parties agree to cooperate with each other in the drafting and execution of such additional documents as are easonably requested or required to implement the terms and spirit of this agreement.” (Settlement Memorandum at 1.) The Memorandum was signed by counsel and expressly required execution of a final/formal settlement agreement at a later date On April 28, 2021, the mediator also filed a letter with the Court confirming that settlement was reached at mediation. On or about May 3, 2021, upon information and belief, Plaintiffs terminated counsel thatrepresented them in this matter, the Lane Law Firm, PLLC. On May 4, 2021, the Lane Law Firm, PLLC filed an Unopposed Motion to Withdraw as Counsel for Plaintiffs, which the Court granted on May 18, 2021 The mediated settlement agreement resolved all claims between the Parties. As a general matter, “[s]ettlement agreements are highly favored.” Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 61 (Tex. 2008). A court may enforce a settlement agreement that complies with requirements that the essential terms be in writing. Padilla v. LaFrance, 907 S.W.2d 454, 462 (Tex. 1995). After proper notice and hearing, a court may enforce a settlement agreement through a motion seeking enforcement of the settlement agreement. Neasbitt v. Warren 105 S.W.3d 113, 117 (Tex. App.Fort Worth 2003, no pet.); see also Mantas v. Fifth Court of DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page of 10 Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al. Appeals, 925 S.W.2d 656, 658 (Tex. 1996) (orig. proceeding) (“Where the settlement dispute arises while the trial court has jurisdiction over the underlying action, a claim to enforce th settlement agreement should, if possible, be asserted in that court under the original proceeding number.”). In this case, the settlement agreement clearly sets out and contemplates an agreement between the Parties as to resolution of this case. Specifically, the agreement addressed terms that are essential to a settlement: (i) the character and natures of the releases; (ii) monetary terms; (iii) resolution of all claims and controversies; and (iv) the effect that the settlement agreement may have on Plaintiffs and Defendants. Here, it is clear that the essential elements have been agreed to such that enforcement of the settlement agreement and associated documents referenced therein for dismissal of this lawsuit is appropriate. Defendants request that the Court order Plaintiffs to execute settlement documents forwarded to their counsel on March 23, 2021.To date, Plaintiffs (the Joneses) have not executed the comprehensive settlement documents that were provided to them by the Lane Law Firm. For these reasons, the Court should order Plaintiffs to execute and comply with the settlement agreement and associated documents required for dismissal of this case, and should further dismiss this matter with prejudice First Cause of Action: Equitable Subrogation Defendants incorporate the allegations in Facts paragraphs 20 27 above. Defendants seek a declaration that they are equitably subrogated to the Prior Liens, including the following amounts: the $ from the proceeds of the Loan used to pay off the Prior Liens, plus interest at the statutory rate on that amount since June 4, 2003 DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page of 10 Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al. SecondCause of Action: Breach of Contract / Specific Performance Defendants incorporate the allegations in Facts paragraphs above. Defendants request that the Court order Plaintiffs to execute settlement documents forwarded to their counsel on March 23, 2021. Attorney’s Fees and Court Costs Defendants incorporate the allegations in Factsparagraphs 20 above. Defendants seek recovery of their costs and reasonable and necessary attorney’s fees pursuant to Chapter 37 of the Texas Civil Practice and Remedies Code. See Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 918 19 (Tex. 2015). Prayer WHEREFORE, Defendants pray that, upon final hearing, they be granted the following relief: (1) an order and judgment that Plaintiffs take nothing by their claims; (2) a judgment declaring that Defendants are equitably subrogated to the Prior Liens in the amount of $21,543.53, plus interest at the statutory rate on that amount since June 4, 2003; (3) an order and judgment (i)awarding Defendants their debt, damages, and costs with respect to any equitably subrogated lien; (ii)providing for the judicial foreclosure of such lien; and (iii)providing that an order of sale issue to any sheriff or constable within the State of Texas, directing him to seize and sell the Property as under execution, in satisfaction of the judgment; (4) a writ of possession against Plaintiffs and all persons claiming an interest in the subject property under Plaintiffs; (5) an order directing the sheriff or constable executing the order of sale to place the purchaser of the subject property at the foreclosure sale in possession of the subject property within thirty (30) days after the sale; (6) pre and/or post judgment interest, as applicable; DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page of 10 Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al. (7) a judgment declaring that Defendants ecifically requiring Plaintiffs to execute all documents necessary to effectuate the Settlement Agreement described in the SettlementMemorandum (8) reasonable and necessary attorney’s fees; (9) costs; and (10) all other relief, in law or equity, to which Defendants may be justly entitled. Dated: August Respectfully submitted, /s/ Matthew D. Durham Matthew D. Durham, SBN: mail: mdurham@mcguirewoods.com UIRE OODS 2000 McKinney Avenue, Suite 1400 Dallas, Texas 75201 Telephone: (214) 932 6400 Facsimile: (214) 932 6499 ATTORNEYS FOR THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR CERTIFICATEHOLDERS OF CWABS, INC., andNATIONSTAR MORTGAGE LLC D/B/A MR. COOPER DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page of 10 Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al. CERTIFICATE OF SERVICE The undersigned attorney certifies that, on August , a copy of the foregoing instrument was served via U.S. Mail and Federal Express to Mr. and Mrs. Guy Jones 7025 East Alpine Drive Houston, Texas 77061 Plaintiffs /s/ Matthew D. Durham Matthew D. Durham DEFENDANTS’ SECOND AMENDED ANSWER, AFF. DEFENSES & COUNTERCLAIM Page 10 of 10 Cause No. 2019 71004; Jones v. BNY Mellon, as Trustee, et al. PS|Ship FedEx Pg=o goco J212021070901uv /BAF3/FE4A FOLD place shipping pouch code delivery address visible printed waybill shipment barcode label receipt receipt conditions information tracking Tendering packages system constitutes agreement the conditions for transportation shipments found applicable FedEx Guide, available request. FedEx not responsible any claim applicable declared value, whether the loss, damage, delay, non-delivery, misdelivery, misinformation, unless declare higher additional charge, document actual and timely claim. 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See the applicable FedEx Service Guide complete conditions. obtain information regarding how claim obtain Service Guide, please 1-800-GG-FEDEX (1-800-463-3339). https://cloud.psship.com/index.php October 26, 2021 Dear Customer, The following is the proof-of-delivery for tracking number: 282148231810 Delivered Residence M.JONES 7025 E ALPINE DR FedEx Priority Overnight HOUSTON, TX, 77061 Aug 5, 2021 12:12 282148231810 Aug 3, 2021 0.5 LB/0.23 KG