Professional Documents
Culture Documents
NO. 05-50080
Appellant
V.
App ellees
Cathy J. Sheehan
PLUNKETT & GIBBON, INC.
Renaissance Plaza, Suite 1100
70 N .E. Loop 410
San Antonio, Texas 78216
Phone : 210/734-7092
Fax : 210/734-0379
The undersigned counsel of record certifies that the following listed persons and
entities have an interest in the outcome of this case . These representations are
made in order that the Judges of this Court may evaluate possible disqualifications
' or recusal .
Cathy J . Sheehan
State Bar No . 18174460
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Appellee asserts that oral argument is unnecessary in the present case . The
issues are not complex and the controlling principles of law are clear .
' Accordingly, Appellee maintains that this case should be placed on the Court's
summary calendar .
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TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS . . . . . . . . . .. .: . . . .. .. .. .. .. .. .. .. . . . .. .. .. . . .. . . . .. . . . . .. .. .. .. . . . . .. .. .. . . . . . . .. .. .. . iv
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TABLE OF AUTHORITIES
CASES : PAGE
Boyer v . Tauber,
834 S.W.2d 60 (Tex . 1992) .. . . . . . . . . . .. .. .. .. . . . .. .. .. .. . . . . .. . . . . . .. . . . . . . . . . . . . . . . . .. .. .. .. .. ..13
Douglas v. USAA,
79 F . 3d 1415 (5th Cir : 1996) . . . .. .. . . . . . . . . . . . . . .. .. .. . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Forsyth v. Barr,
19 F . 3d 1527 (5th Cir .), cert. denied, U.S. 115 S . Ct 195 (1994) . . . . . . . . . . . . . . 7
Harris v. Potts,
545 S .W.2d 1 26 (Tex . 1976). .. . . . .. .. .. .. . . .. . . . .. . . .. .. . . . . . . . . . . . . . . . .. . . . . . . .. .. .. . . .. .. . . .. . 14
Henderson v. Hayes,
Cause No . 99-CI-15117,
166th Judicial District Court, Bexar County, Texas .. .. .. .. .. .. .. .. . . .. .. .. . . . . . 8,15
Hooks v. Bridgewater,
229 S .W. 1114 (Tex . 1921) . .. . . .. . . . . .. . . . .. . . .. .. . . . . .. . . . . . . . . .. . . . . . . . . . . .. .. . . . . . . . . . .. . . . . . .14
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In re Gilchrist,
891 F. 2d 559 (5th Cir. 1990).. .. .. .. .. . . .. . . . . . . .. .. :. . . . . . . . . .. . . . . . .. . . . . . . . . . . . . . .. .. .. .. .. ..15
Tomlinson v. Higgenbotham,
229 S .W. 2d 290 (Tex . 1950) . .. .. .. . . . .. .. .. .. .. . . .. .. .. .. . . . . .. .. .. .. . . . . .. .. . . .. . . . . . . . .. .. .. .13
OTHER SOURCES :
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VII
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JURISDICTIONAL STATEMENT
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NO. 05-50080
Appellant
V.
Appellees
Brief in response to the brief filed by Appellant, Bank of America, N .A., and
1 . The District Court did not err in affirming the Bankruptcy Court's granting
of Defendant John Henderson's Motion for Summary Judgment and Plaintiff
Helen G . Schwartz's Joinder in the Motion for Summary Judgment as there
was no genuine issue as to any material fact .
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2 . The District Court did not err in affirming the Bankruptcy Court's finding
that there was no genuine issue of material fact concerning whether John
Henderson held a valid and existing equitable claim against or in the real
property .
I
3 . The District Court did not err in affirming the Bankruptcy Court's finding
III , that John Henderson held a valid and existing equitable claim against or in
the subject real property .
4. The District Court did not err in affirming the Bankruptcy Court's finding
that there was no genuine issue of material fact concerning whether John
Henderson's actions constituted partial performance of an oral contract so as
to exclude the sale of the subject real property from the Statute of Frauds .
5 . The District Court did not err in affirming the Bankruptcy Court's finding
that John Henderson's actions constituted partial performance of an oral
contract so as to exclude the sale of the subject real property from the Statute
of Frauds .
6. The District Court did not err in affirming the Bankruptcy Court's finding
that that there was no genuine issue of material fact concerning whether
John Henderson's possession of the subject real property was of such a
character so as to give Bank of America's predecessor in interest
constructive notice of John Henderson's equitable claim against or in the
subject real property at the time of the origination of its mortgage loan in
1998 .
7. The District Court did not err in affirming the Bankruptcy Court's finding
that John Henderson's possession of the subject property was of such a
character as to give Bank of America's predecessor in interest constructive
notice of John Henderson's equitable claim against or in the subject real
property at the time of the origination of its mortgage loan in 1998 .
8 . The District Court did not err in affirming the Bankruptcy Court's finding
that there was no genuine issue of material fact concerning whether John
Henderson's possession of the subject real property was "open, visible, and
unequivocal" at the time that Bank of America's predecessor in interest
originated its mortgage loan in May of 1998 .
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9 . The District Court did not err in affirming the Bankruptcy Court's finding
that John Henderson's possession of the subject real property was "open,
visible, and unequivocal" at the time that Bank of America's predecessor in
interest originated its mortgage loan in May of 1998 .
10. The District Court did not err in affirming the Bankruptcy Court's finding
that there was no genuine issue of material fact concerning whether John
Henderson's equitable claim against or in the subject real property held a
priority higher than that held by the mortgage lien of Bank of America in the
subject real property .
11 . The District Court did not err in affirming the Bankruptcy Court's finding
that John Henderson's equitable claim against or in the subject real property
held a priority higher than that held by the mortgage lien of Bank of
America in the subject real property .
12 . The District Court did not err in affirming the Bankruptcy Court's
application of the same standard for constructive notice with regard to home
equity lenders and bona fide purchasers of fee simple absolute interests in
real property.
This case comes to this Court on appeal from the United States District Court's
2CR77 ; App. 13 .
proceeding on September 11, 2002, in the United States Bankruptcy Court for the
filed a Motion for Summary Judgment and a supplemental Motion for Summary
Judgment, and the court thereafter granted the motion, holding, that : 1) Bank of
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America was not entitled to priority of interest since they had inquiry notice of
the home before their asserted lien was consummated ; and 2) the underlying
property conveyance between John Henderson and Elizabeth Jane Hayes met the
partial performance exception to the Statute of Frauds . 2CR27; App. 6. The case
was appealed to the United States District Court and that court affirmed the
Elizabeth Jane Hayes, Debtor, for the purchase of her home, located at 8523 Ridge
installments of $40,000 .00 and $65,144 .14, dated March 12th and 18th, 1997,
respectively . Id. Mr. Henderson requested a General Warranty Deed for the
continually and at no time between April 1997 and May 1998 did he reside
anywhere else . Id. In July of 1999, Mr. Henderson discovered that on or about
May 26, 1998, Ms . Hayes executed a Deed of Trust in favor of NationsBank which
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loaned money to Debtor Elizabeth Jane Hayes under the representation that she
was the true owner of the home. 2CR74-77, 81 ; App. 10. NationsBank conducted
a cursory examination of the property records and concluded that Ms . Hayes was
the owner of the property. 2CR74-75 ; App. 10. NationsBank did not perform any
inspection of the premises, nor did they contact the current occupant to ensure Ms .
real property even though the bank had a deed of trust in its favor based on Ms .
evidence that he occupied the home and made visible repairs to the home to
support his equitable lien . 2CR46-47 ; App. 6. Prior to and after moving into the
purchased a new air conditioning unit as well . Id. Mr. Henderson always parked
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his truck in the driveway, his mail was delivered to the property, and the phone
number at the house was registered to him. Id. Furthermore, he was registered
with City of Converse Police Department as the person authorized to turn off the
alarm for his neighbor, Mr . Jim Holbrook . Id. At no time after April of 1997 did
This court reviews decisions from the district court by implementing the
same standard that the district court applied to the bankruptcy court's findings of
fact and conclusions of law . Gen . Elec. Capital Corp. v. Acosta, 406 F.3d 367, 372
(5th Cir . 2005). Thus, the district court's findings of fact are reviewed under the
clearly erroneous standard, and its conclusions of law are reviewed de novo . Id.
A factual finding is overruled for clear error only where there is a definite
and firm belief that a mistake has been committed . Westchester Fire Ins . Co. v .
Haspel-Kansas Inv . P'ship, 342 F.3d 416, 418-19 (5th Cir. 2003) . De novo review
447 U.S . 667, 690 (1980) . However, determinations of state law by federal courts
are governed by the final rulings of the highest court of the state . Transcon . Gas
Pipe Line Corp . v. Transp. Ins. Co., 953 F.2d 985, 988 (5th Cir . 1992).
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genuine issue of material fact and the moving party is entitled to judgment as a
Celotex Corp. v. Catrett, 477 U.S 317, 323-325 (1986); Ragas v. Tennessee Gas
Pipeline Co., 136 F . 3d 455, 458 (5th Cir. 1998). Once the movant satisfies the
burden of showing that there is no issue of material fact, the burden shifts to the
1428 (5th Cir. 1996) ; Forsyth v. Barr, 19 F. 3d 1527, 1533 (5th Cir .), cert. denied,
U.S. 115 S. Ct 195 (1994) . .A material fact issue exists when the "evidence is such
that a reasonable jury could return a verdict for the nonmoving party." Id.
The district court properly affirmed the Bankruptcy Court's granting of the
motion for summary judgment. Numerous issues are presented for review, each
focusing on two inquiries : 1) did the conveyance of real property from Ms . Hayes
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to Mr. Henderson meet the partial performance exception to the statute of frauds ;
and 2) did the overt conduct of Mr. Henderson put NationsBank on notice that he
In response to these issues, the bankruptcy court correctly held that the
statute of frauds and that Mr . Henderson's open, exclusive, and visible possession
of the home placed NationsBank on inquiry notice that he was, in fact, the true
owner of the home . The Texas Supreme Court directly supports this finding in
Paris Grocer Co . v. Burks, wherein it is stated that "open, exclusive and visible
possession maintained by the holder of the unrecorded deed when the right of the
creditor attaches is notice of the right under which it is held ." Paris Grocer Co. v.
Bucks, 105 S.W. 174, 175 (Tex. 1907) . The Court aptly reasoned that those
seeking to acquire an interest in property have a duty, "in the exercise of common
purposes to acquire, and to make inquiry of the possessor as to the nature of the
that he did nothing to "alert anyone of his unrecorded claim" and that equitable
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Henderson instituted action to settle this matter by filing a petition for a restraining
NationsBank's desktop loan evaluation did nothing to ascertain the true owner and
inspection would have disclosed Mr. Henderson's open, exclusive, and visible
America's estoppel argument, even though it was not properly preserved for
appellate review .
NationsBank, did not dispute the fact that Mr . Henderson lived on the property
continuously from April of 1997 through May of 1998 . It is also undisputed that
the Deed of Trust that Ms . Hayes gave to NationsBank occurred more than a year
after Mr. Henderson moved onto the property . 2CR84 ; App . 11 . Most
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importantly, Bank of America did not contest the affidavits of Mr . Henderson and
Mr. Holbrook in which they state that Mr . Henderson lived on the property in an
"open, visible, and unequivocal" manner . Id. Bank of America cannot understate
the importance of their failure to dispute the affidavit . See Republic Nat'l Leasing
constructive notice by registration of the deed to property. Chicago Title Ins . Co.
v. Alfors, 3 S .W. 2d 164, 169 (Tex. App .-Eastland 1999) . There was no recorded
constructive notice . Id. Mr. Henderson's possession triggered notice of facts that
would put a reasonably prudent person on a duty of inquiry. Boyd v. United Bank,
794 S .W. 2d 839, 841 (Tex . App-El Paso 1990) . When another party other than
the mortgagor possesses and occupies real property, such occupation puts the
Paris Grocer Co . v. Bucks, 105 S.W. 174, 175 (Tex . 1907). One who wants to
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Dallas Bldg & Loan Assn v . Patterson, et al ., 48 S .W. 2d 657, 661 (Tex. App
1932). NationsBank, as one who sought to acquire an interest in land, did not
exercise simple common prudence by making an inquiry into the possession and /or
heightened `duty of inquiry"' upon lenders for the type of loan given to Ms .
paragraph 3 of its Decision states that "thus, since open, exclusive, and visible
property was "open, visible, and unequivocal ." Id. Constructive notice of title
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The Bankruptcy and District Courts did not impose a new bright-line rule
governing the specific inquiry lenders must perform . Rather, the Bankruptcy
The Bankruptcy and District Courts properly stated that Appellants did not
∎
contest the affidavits of Mr . Henderson and Mr. Holbrook, which contend that Mr .
2CR84. The Appellants did not contest, in any way, the nature of Mr . Henderson's
~I follow .
Also, they argue that the desktop "Valuation Model" and title search, used
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Appellant's Opening Brief, pp . 26-27. Bank of America vehemently argues that its
which they did not submit a definition or any evidence . Appellant's Opening
Brief, pp. 26-27. It should be noted that the "industry standard" is not necessarily
the legal standard, as shown in this case . See generally Cameron Compress Co . v.
Jacobs, 10 S .W.2d 1040, 1041 (Tex . Civ. App.-Austin 1928, writ ref d) (holding
Appellant also asserts that the repairs being done to the house would not
give anyone notice that the workman doing repairs was claiming an ownership
mistaken on this issue . The Texas Supreme Court held to the contrary in
Tomlinson v. Higgenbotham, 229 S .W. 2d 920 (Tex . 1950). In this case, a deed of
trust lien holder asserted that he was a holder in good faith, had given
consideration, and was without actual or constructive notice . Id. at 922 . The court
held that the lien holder was charged with notice when he saw labor being
performed on the property and made no inquiry of the people who furnished the
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Id. Mr. Henderson presented evidence of his "open, visible, and unequivocal"
possession of the subject property and this possession gave rise to inquiry notice .
for the first time on appeal, it should be noted that the circumstances of this case
remove this transaction from the statute of frauds under the doctrine of partial
performance . Boyer v. Tauber, 834 S.W.2d 60, 63 (Tex . 1992); see Harris v.
Potts, 545 S .W .2d 126 (Tex . 1976) (citing Hooks v. Bridgewater, 229 S.W . 1114
(Tex. 1921)) . Mr. Henderson showed conclusive proof to the Bankruptcy Court
that he paid consideration, took possession of the property and made permanent
improvements on the property with the consent of the seller . 2CR46-52; App. 6.
Appellants did not raise any issues of material fact nor did they present any
~I Appellant's statute of frauds issue was not asserted during proceedings in the
~I Bankruptcy Court, instead, it was raised for the first time on appeal to the District
Court, and once again during this appeal . See Appellant's Opening Brief (Dist .
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evidence to show that he met all the elements necessary to take the conveyance out
of the statute of frauds and, thereby, had an equitable lien on the property. 2CR46-
52 ; App . 6 . Appellants did not object nor produce any evidence contrary to this
argument. The Fifth Circuit has noted that "it is well established that [reviewing
courts] do not consider arguments or claims not presented to the bankruptcy court ."
Gilchrist, 891 F. 2d 559, 561 (5th Cir. 1990). Bank of America has waived appeal
of these issues . Id. Neither the Bankruptcy Court nor the District Court erred by
E. Mr. Henderson 's actions have not been of a nature to preclude him
from a sserting equitabl e title to th e real prop erty or a lien that is
superior to th e Appellant.
estoppel because these issues were not raised prior to appeal, the argument is
transferring the property to [Mr. Henderson] by General Warranty Deed, but [Ms .
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settle this matter by filing a petition for a restraining order on October 22, 1999 .
See CR Ex. to Doc . 14, Tab 5 . Mr. Henderson sought legal advice and filed his
relied upon" a statement outside of the record concerning the proximity of banking
Appellants Opening Brief, pp . 25-26. The context of the statement removes any
and all doubt on this issue ; the Bankruptcy court, in two places, emphasized that a
"phone call" would have met the reasonableness standard of inquiry . Id. .
Accordingly, the physical proximity of the bank was not a necessary element of the
VII. CONCLUSION
The overt conduct of Mr . Henderson put NationsBank on notice that he was the
true owner of the home . The affidavit of Mr. Henderson and Mr . Holbrook, stating that
Mr. Henderson lived on the property in an "open, visible, and unequivocal" manner,
establishes this fact . The Texas Supreme Court has ruled that possession in such a
manner imposes the duty of inquiry upon any subsequent creditor, such as NationsBank .
Further, the Bankruptcy court properly held that his duty applies to both subsequent
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' material fact that NationsBank did not fulfill that duty .
Mr. Henderson met the partial performance exception to the statute of frauds . Mr.
'' Henderson's conduct prior to this suit also supports his claim for equitable title to
I!,' the property. Reversible error was not committed and no genuine issue of material
fact remains .
VIII. PRAYER
' HENDERSON respectfully prays that this Honorable Court affirm the District
Court's decision in affirming the Bankruptcy Court, and for such other and further
Respectfully submitted,
ff I ~ } // '~W
By:
Cathy J . S ehan
' State Bar o . 18174460
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CERTIFICATE OF SERVICE
I certify that a true and correct hard and disc copy of the above Brief of
Appellee, John Henderson has on this the day of August, 2005, been
forwarded via certified mail, return receipt requested to the following parties :
Richard D . Brady
BARRETT, BURKE, WILSON, CASTLE,
DAFFIN & FRAPPIER, L .L.P.
1900 St. James Place, Suite 500
Houston, TX 77056
Helen G. Schwartz
Chapter 7 Trustee
9901 IH-10 West, Suite 770
San Antonio, TX 78230
Johnny W. Thomas
Attorney at Law
St. Paul Square
1153 E . Commerce
San Antonio, TX 78205
3855-002/#285616
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