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Freeman v. Wells Fargo Bank, N.A.

United States District Court, S.D. Texas, Galveston Division

July 25, 2017

JASON FREEMAN, Plaintiff,
v.
WELLS FARGO BANK, N.A., Defendant.

          MEMORANDUM OPINION AND ORDER

          George C Hanks Jr. United States District Judge.

         Before the Court are the parties' cross-motions for summary judgment. Based on the pleadings; the motions, responses, and replies; the applicable law; and the arguments of counsel, the Plaintiff's motion for summary judgment (Dkt. 19) is DENIED; the Defendant's original motion for summary judgment (Dkt. 28) is DENIED as moot; and the Defendant's amended motion for summary judgment (Dkt. 52) is GRANTED. The reasons for the ruling are explained below.

         Background

         A. The Property

         The real property at issue is located at 74 Chervil Common, Lake Jackson, Texas 77556 (the “Property”). Glenda R. Pierce purchased the Property in 1999. In 2003, Pierce executed a Deed of Trust with the Defendant, Wells Fargo, N.A. (“Wells Fargo”). In 2015, a state court ordered the Property to be sold at auction.[1] On November 3, 2015, Plaintiff Jason Freeman[2] (“Freeman”) purchased the property at a Sheriff's Sale for $5, 100. The purchase was recorded in a Brazoria County Deed Under Order of Sale. A month later, the Briarwood Homeowners Association sent a Notice of Right of Redemption to, inter alia, Pierce and Wells Fargo. Dkt. 1-5, p. 10.

         Three months later, Wells Fargo issued a Notice of Acceleration and Notice of Trustee's Sale on the property (together, the “Notice”). The Notice stated that the Deed of Trust was formed in November 2003 and that Glenda R. Pierce was the grantor. Dkt. 1-5, p. 22. Wells Fargo scheduled the property sale for March 1, 2016.

         B. The Litigation

         On the date of sale, Freeman filed Plaintiff's Amended Petition and Application for Temporary Restraining Order in the 412th Judicial District Court of Brazoria County, Texas. Dkt. 1-7. The Petition asserted claims for wrongful foreclosure and suit to quiet title against Wells Fargo.[3] Freeman sought declaratory and injunctive relief, arguing that he was a bona fide purchaser with a superior claim to title. The court granted a 17, Amended Notice of Sheriff's Sale (“WHEREAS, by virtue of an Order of Sale issued out of the 239th District Court of Brazoria County, Texas, on the 13th day of August, 2015, in Cause No. 77550-CV, where Briarwood Homeowners Association was/were Plaintiff, and Glenda R. Pierce was/were Defendant on a judgment rendered in said Court on May 26, 2015, against Defendant and in favor of the said Plaintiff, for a lien foreclosure for the sum of $5, 000.00 with interest ….”).

         Temporary Restraining Order. Dkt. 1-8. Wells Fargo then removed the case to this Court. Dkt. 1.

         The parties filed cross-motions for summary judgment. The parties' motions contained evidence cataloguing the Property's protracted ownership history:[4]

• Declarat1ion of Covenants, Conditions and Restrictions, Briarwood Subdivision, Section II. Dkt. 20-1. The subdivision common area is described as “All of Section 11, less and except Block One (1) through Eight (8), both inclusive, of Briarwood Subdivision, City of Lake Jackson, Brazoria County, Texas, according to the map or plat thereof duly recorded in the Office of the County Clerk of Brazoria County, Texas, reference to which is here made for all purposes.” Filed in the Official Public Records of Brazoria County, Texas on April 24, 1974, in Vol. 1201, Page 134. Dkts. 20-1; 30-A.
• General Warranty Deed from Charles F. Vignal to Brooke Burnham. The lot is described as follows: “Lot 1, Block 2, of the BRIARWOOD SUBDIVISION, SECTION TWO (2), a subdivision in the city of Lake Jackson, Brazoria County, Texas, according to the map or plat thereof recorded in Volume 13, Page 71 of the Plat Records of Brazoria County, Texas.” Filed in the Official Public Records of Brazoria County, Texas on March 17, 1988, as Instrument 88-524760. Dkt. 20-2.
• General Warranty Deed from Brooke Burnham to Glenda R. Pierce. Pierce produced a promissory note from the CIT Group/Consumer Finance, Inc. (“CIT”). The lot is described as follows: “Lot 28, in Block 8, of Area “G”, CITY OF LAKE JACKSON, a subdivision in Brazoria County, Texas, according to the map or plat thereof, recorded in Volume 4, Page 163 of the Plat Records of Brazoria County, Texas.” Filed in the Official Public Records of Brazoria County, Texas on October 28, 1999, as Instrument 99-048799. Dkts. 20-3; 30-B. A subsequent Correction General Warranty Deed from Brooke Burnham to Glenda R. Pierce described the lot as follows: “Lot 1, in Block 2, of Replat of BRIARWOOD SUBDIVISION, SECTION TWO (2), a subdivision in Brazoria County, Texas, according to the map or plat thereof, recorded in Volume 13, Page 71 of the Plat Records of Brazoria County, Texas.” Filed in the Official Public Records of Brazoria County, Texas on January 12, 2000, as Instrument 00-001475. Dkts. 20-4; 30-C.
• The Deed of Trust and Security Agreement between Pierce and CIT described the property as “74 Chevell Common Lake Jackson, TX 77566. It then directed the reader to “SEE ATTACHED LEGAL DESCRIPTION (“EXHIBIT A”), which stated “Lot 1, in Block 2, of Replat of BRIARWOOD SUBDIVISION, SECTION TWO (2), a Subdivision in BRAZORIA County, Texas, according to the map or Plat thereof recorded in Volume 13, Page 71 of the Plat Records of BRAZORIA County, Texas. Property Address: 74 Chervil Common, Lake Jackson, Texas 77566, Brazoria County.” Filed in the Official Public Records of Brazoria County, Texas on October 28, 1999 as Instrument 99-048800. Dkts. 20-5; 30-D.
• An Assignment of Mortgage from CIT to Pierce described the lot as follows: “74 CHEVELL COMMON, LAKE JACKSON, TX 77566 (See original mortgage/deed of trust for legal description): Exhibit A: Lot 1, in Block 2, of Replat of BRIARWOOD SUBDIVISION, SECTION TWO (2), a Subdivision in BRAZORIA County, Texas, according to the map or Plat thereof recorded in Volume 13, Page 71 of the Plat Records of BRAZORIA County, Texas. Property Address: 74 Chevril Common, Lake Jackson, Texas 77566, Brazoria County.” Signed on January 13, 2000. Filed in the Official Public Records of Brazoria County, Texas on April 23, 2001 as Instrument 01-016489. Dkts. 20-6; 30-E.
• A Deed of Trust between Pierce and Wells Fargo (“The Deed”). At issue in this dispute is the sufficiency of this Instrument. The Property is described as follows: “Legal Description is Attached Hereto as Schedule “A” and Made a Part Hereof. Parcel ID Number: 74 CHEVELLE COMMONS, LAKE JACKSON, TEXAS 77566, BRAZORIA.” Schedule A was not attached to this Instrument. It did have an attached Prepayment Rider, which described the Property as: “74 CHEVELLE COMMONS, LAKE JACKSON, TX 77566.” The Deed was filed in the Official Public Records of Brazoria County, Texas on December 5, 2003 as Instrument 03-076852. Dkts. 20-7; 30-F.
• A Final Default Judgment from the 239th Judicial District Court of Brazoria County, Texas in favor of Plaintiff Briarwood Homeowners Association against Defendant Pierce. The Property was described as: “Lot 1, in Block 2, of Replat of Briarwood Subdivision, Section Two (2), a subdivision in Brazoria County, Texas, according to the map or plat thereof recorded in Volume 13, Page 71 of the Plat Records of Brazoria County, Texas, commonly known as 74 Chevril Common, Lake Jackson, Texas ("the Property").” Cause No. 77500-CV. Entered on May 26, 2015. Filed in the Official Public Records of Brazoria County, Texas on June 26, 2015 as Instrument 2015028862. Dkts. 20-9; 30-G.
• A Deed Under Order of Sale from the Sheriff of Brazoria County describing the Property as “Lot 1, in Block 2, of replat of Briarwood Subdivision, Section Two (2), a subdivision in Brazoria County, Texas, according to map and plat thereof recorded in Volume 13, Page 71, of the Plat Records of Brazoria County, Texas more commonly known as 74 Chervil Common, Lake Jackson, Texas..” Signed on January 20, 2016.
Filed in the Official Public Records of Brazoria County, Texas on January 27, 2016 as Instrument 2016003832. ...

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