OUR STORY Part 25: UNDISCLOSED EMAIL & THE CHANGING OF THE GUARD

On March 22, the Parker County Judicial website posted an update reflecting the judge's decision, granting the defense's motion to set aside the Default Judgment and grant a new trial.

It's been two and half weeks since the ruling, and we have been contacting our attorney on numerous occasions in and effort to find out when a new trial date will be set. As usual, it's been painfully slow going.

Yesterday I emailed our attorney, once again; and as a result we received a copy of a very strong email sent to defense counsel from him. The email read:

"B----: 

I have contacted the court and she has July 12, 2011 as a trial date.  I told her I wanted that date and I am supposed to confer with you and Ed.  I left Ed a message.  If you can not agree to this date and or I don’t hear back from you, I will set a hearing for setting the trial date. 

It was pretty easy to get a Parker County jury to find fraud, fraud in a real estate transaction and lesser claims against Deborah Moran and she had a much better defense than your clients.  Additionally, either your clients did not give you all of their emails or they were not given to me, but either way, there is an email from one of your clients that clearly demonstrates they knew intimately what the problems with this property were and what should be done about it.  I also expect your carrier is not going to indemnify your clients for any fraud findings.  That means that they are going to be personally responsible for the judgment.  If it is not satisfied, then we will go to the TREC Trust Fund and they will lose their licenses.  Whatever sunny picture you, your carrier or your clients had about how trial is  or was going to come out is seriously flawed in light of the facts that the jury will hear.    I have now had a week long focus group.  I have weathered the defenses you will present and I know even better what to do this time.  If you don’t have that email, you need to ask your clients to go back and get it again.  In the meantime, if you want to protect your clients and prevent them from losing their real estate licenses, let me know." 

We were so excited to receive this. Finally, some real pressure being applied to defense counsel.

The email referenced in his letter to defense counsel involves email correspondence that the seller's Realtors failed or refused to turn over during discovery. The email showed up later in a set of documents which were provided during later discovery from the title company. Moreover, the email seemed to be out of order in the documents making it more obscure.

This email proves not only that the sellers' Realtors knew of the flood zone  and drainage easement issues on the property, but that they had been in direct contact with the surveyor of these issues. It is very incriminating... aka Smoking Gun!

Nonetheless, just as soon as our excitement would hit over this recent correspondence from our attorney, we would receive a forwarded response from opposing counsel that knocked the wind right out of us.

"I am delighted to report that I no longer need to listen to your happy equine by-products.  You may now try that flatulent approach on new counsel.  I will be out of this by next week.  Hopefully for your sake, your clients will not get what they deserve and they will only get poured out yet again.  I am uncertain what you get out of this approach but it is sophomoric if given a charitable description.  You catch more flies with honey than with vinegar.  I commend unto you ...honey. You are dealing with a couple of people who are wonderful humans and trashing them may make you feel strong and important but what you really do is undermine your credibility , if any.  The motion to substitute will be arriving....strong email to follow.  Have a great day.

E-"

Alas, the last pot shot by this firm, along with notice that they are being replaced. This, in essence, could push our trial date and reinvent the wheel, somewhat.

Today is the last day to satisfy requirements with Chase Home Finance for the "loan modification" application. Unfortunately, we are unable to meet their requirements.

We are in the hands of a sovereign God, and don't know our tomorrow.

 

OUR STORY Part 20: THE KINGS HEART IS IN HIS HAND

"The king's heart is in the hand of the LORD,

as the rivers of water: he turneth it whithersoever he will."

Proverbs 21:1

We received an email from our attorney today. I would venture to say that this is the first formal letter we have received from him since he was retained over two years ago; discounting our retainer agreement that is. I think this is what one might refer to as a CYA "Cover Your Attorney" letter.


On January 7th a Default Judgment "prove-up" hearing was held; a Default Judgment was granted to us by the judge that same day, in the amount of $1,177,500.

 As a result of the ongoing arrogance of defense counsel; although they knew the January 7th hearing was scheduled, they elected not to attend the hearing in order to contest the judgment at that time. Instead, they simply wasted the court's time and chose to engage in yet another series of calculated delays, and abuse of the judicial system.

 You can almost picture all of these overpaid, pious and self-loving attorneys, rocked back in their big overstuffed leather chairs; cigar in mouth as they fold up one legal motion after another like paper gliders aimed to hit the Parker County Clerks office with the synchronized precision of the Blue Angels. Bam, bam, bam...

 My favorite post on the website was:

1ST SUPPLEMENT TO DEF'S REPLY TO PLNTF'S RESP TO DEF MOT FOR NEW TRIAL AND MOT TO SET ASIDE DEFAULT JDGMNT

Interpretation? That's "first supplemental to defense's reply to plaintiff's response to defense's motion for new trial and motion to set aside default judgment." Yes, and I estimate that this all plays out at an average of about $350 per hour...per attorney.

 Finally on March 3rd a hearing was held for defense counsel to present their argument in opposition to the Default Judgment, arguing case law. And, during the hearing the defense counsel pulled a rabbit out of their hat; otherwise referred to in this case as a "hyper-technicality."

 Apparently the return of service from the process server, did not include a notarization or a description of his official capacity. So what defense counsel did was sit on the serviced petition and not answer because this is a game they admittedly play all the time. In fact, they told the judge that very thing during the hearing, which apparently ticked off the judge; or so our attorney related.

 So even though the defendant's admitted to receiving their petition; and admitted to signing for receipt of their petition; and admitted to giving said petition to their lawyers; who admitted to receiving said petitions . . they refused to answer them within the allotted timeline under current law.

 Nonetheless, that being the case, there is a possibility that; should the judge stand with the judgment and rule in our favor; case law may afford defense counsel victory if it is overturned in appellate court.

According to our attorney, the court “seemed” favorable to our position, and "chewed" out defense counsel for playing games. Defense counsel agreed that their clients were served; and it is supported that they were served properly. However, the hyper-technicality of the process server's signature throws a little wrench in the mix and the judge has now taken the matter under advisement. And, we wait again.

On Friday, one day after the hearing; we received a telephone call from our attorney telling us that defense counsel had agreed to an early trial date of June 14th  "IF" we would be willing to an agreed order setting the Default Judgment aside prior to the judge making a ruling. We told our attorney that we wanted to take the weekend to discuss the matter and pray. He chuckled, as usual, mocking our faith.

Monday morning Michael contacted our attorney and informed him of our decision to forego the deal with defense counsel, and instead, await the judge's ruling. Thus, the reason for the "CYA" letter we would later receive from our attorney.

The bottom line is that we have been assured trial dates and settlement offer proposals to no avail for the past two years. Now it is time to trust in the Judge of all judges, and follow peace as we know it.

 

OUR STORY Part 8: "NOT IN A FLOOD HAZARD ZONE"

During our escrow process we were provided two seller disclosures.  The first disclosure provided on 9/11/07 has a box checked noting that the property was “Not In 100 Year Flood Plain.”  The second revised disclosure received on 09/15/07 left this same box blank.  Neither we nor our professional Realtor ever picked up on this.

During the process of discovery on our civil case, were became aware of the fact that our mortgage company had requested a flood determination on the property on 9/13/2007 which stated that the property we were purchasing was in Flood Zone A.  No one told us of this information or provided us with the documentation.  Instead, the mortgage company and Realtors proceeded to take measures to have the property pulled out of the flood zone in subsequent flood determinations done by other companies.  Again, none of these flood determinations were ever brought to our attention or provided to us.

At the closing of escrow, November 9, 2007, my husband was given a packet HUD Settlement documents to sign; including page sixty-six (66), entitled "Flood Hazard Certification."  This is apparently a standard HUD document in the state of Texas, prepared before hand by the Title Company for signature by the buyer.  This document is generated reflecting information obtained from a flood determination requested by the mortgage lender. 

The document prepared for signature had three possible areas to "XX". The choices were "IS WITHIN", "IS WITHIN A MINIMAL" or "IS NOT WITHIN."  The paragraph section marked "XX" in our HUD packet was:

Had the results of the first flood determination being used, this document would have reflected that the property "IS WITHIN" a Flood Hazard Zone and we would not have purchased it.  Moreover, had we known that the escrow process was being peppered with flood determinations, and that mortgage fraud was taking place to approve financing on this property, we would not have merely walked away from escrow, we would have run!

In May 2008, following the flash flooding on our property; an engineering report confirmed what the professional Realtors, Brokers and Mortgage Lender already knew; that our property was located within a FEMA designated "Flood Hazard Zone" (Zone A).  Records show that this property has been designated as being in the flood zone since at least 1997.

In addition to our property being located in a Flood Hazard Zone; is the matter of it being illegally built on a designated drainage easement.  Documents and emails produced during the discover process confirm that Realtors and the mortgage company knew this, and proceeded to use an illegible unrecorded "Release of Drainage Easement" in order to have the lender approve our loan and close escrow. 

The interesting thing about this release document is that the signature on the document is that of the County Flood Plain Administrator.  It just so happened that; at the recommendation of a neighbor, we contacted this gentleman and had been in communication with him as a result of the flash flooding on our property.  Last September he testified to the following under oath during our first trial:

1. The "Release of Drainage Easement" used during our escrow was not even related to the drainage easement on our property.
2. The county department would not be involved in the issuance and release of a drainage easement on a residential property.
3. In order to move a drainage easement there would have to be a LOMR engineering study to determine the Base Flood Elevations (BFE), and engineering remedy in compliance with FEMA regulations.

Approximately mid September 2008 we were beginning to recover from the initial shock of our situation with the property, as well as the disruption of the natural gas well site behind our home.  The economy was taking a dive across our nation and business began to slow down in the hotel travel industry for which we brokered online radio and television advertising.  We were getting by like most hard working Americans but things were tight, and we now had the addition of a monthly tractor payment when things began to get even worse and the big hammer dropped square down on our already throbbing heads. 

On October 28, 2008, Chase Home Finance sent us a letter stating that a new FEMA Map Revision had been done on our area.  The map revision affirmed that our home and entire property were located in a Flood Hazard Zone (Flood Zone A).  The letter went on to inform us that we had forty-five (45) days to provide either proof of flood insurance or a LOMR (Letter of Map Revision) proving that we were not located in the flood zone. 

Please note that the cost of a LOMR is estimated at anywhere between $50,000 and $75,000.

So we set out to prove that our home was not in a flood zone as presented to us during escrow.  And what we would find out in this process was corruption within corruption . . .

If you are thinking to yourself "well, there is always two sides to a story", consider this; defense counsel for our Realtor rested during trial WITHOUT putting on a defense, because they had none!