Suarez v. U.S. Bank, NA, As Trustee

Western District of Texas, txwd-5:2019-cv-00704

COUNTERCLAIM against Felix Robert Suarez, filed by U.S. Bank, NA, as Trustee.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION FELIX ROBERT SUAREZ, § § Plaintiff/Counter-Defendant, § § v. § § Civil Action No. 5:19-cv-704-FB-ESC U.S. BANK TRUST NATIONAL § ASSOCIATION, AS TRUSTEE OF CVI § LCF MORTGAGE LOAN TRUST I, § § Defendant/Counter-Plaintiff. § COUNTERCLAIM OF U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE Defendant/Counter-Plaintiff U.S. Bank Trust National Association, as Trustee of CVI LCF Mortgage Loan Trust I ("U.S. Bank" or "Defendant") files this Original Counterclaim against Plaintiff/Counter-Defendant Felix Robert Suarez ("Plaintiff/Counter-Defendant" or "Suarez") and respectfully shows as follows: I. COUNTERCLAIM A. Background 1. Plaintiff filed this action on May 31, 2019, in the 37th Judicial District Court of Bexar County, Texas, as Cause No. 2019CI10996 in the matter styled Felix Robert Suarez v. U.S. Bank, N.A. as Trustee. (the "State Court Action"). The allegations in Plaintiff' Original Petition relate to a foreclosure initiated by U.S. Bank that was scheduled for June 4, 2019. 2. The action was properly removed the State Court Action to this Court on June 17, 2019. [ECF Doc. No. 1]. 1 1 Defendant filed a Motion to Dismiss wherein it will seek dismissal of Plaintiff's claims with prejudice. [ECF No. 7.] Defendant seeks final judgment in this matter only after the Court's consideration of its Counterclaim. COUNTERCLAIM OF U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE 18-000111-505 Page 1 B. Parties and Jurisdiction 3. U.S. Bank is a defendant and counter-plaintiff in this cause. 4. Plaintiff/Counter-Defendant Felix Robert Suarez has previously appeared in this cause. He has made an appearance at may be served through his counsel of record, Robert C. Newark, III via ECF Notification. 5. There is diversity jurisdiction in this Court because there is complete diversity of citizenship between Counter-Plaintiff and Counter-Defendant. In addition, more than $75,000.00 is in controversy in this cause, exclusive of interest and costs, as further detailed in the Notice of Removal. 28 U.S.C. § 1332. C. Summary of Facts 6. On or about August 28, 2002, Suarez executed an Adjustable Rate Note ("Note") for $54,000.00 payable to Ameriquest Mortgage Company as lender on a loan secured by the real property commonly known as 1252 Clower Street, San Antonio, Texas 78201 and more particularly described as follows: LOT TWO (2), BLOCK ONE HUNDRED ONE (101) LOS ANGELES HEIGHTS ADDITION, NEW CITY BLOCK SEVENTY-ONE HUNDRED SIXTY-FOUR (7164) RECORDED IN VOLUME 105, PAGE 84 OF BEXAR COUNTY DEED AND PLAT RECORDS. (the "Property") 7. Concurrently with execution of the Note, Suarez executed a Deed of Trust ("Deed of Trust" and together with the Note, the "Loan Agreement") with said Deed of Trust being recorded as document number 2002041535 in the official public records of Bexar County, Texas. U.S. Bank is the current legal owner and holder of the Note and mortgagee of the Deed of Trust pursuant to that certain Transfer and Assignment dated December 6, 2017 and recorded as document number in the official public records of Bexar County, Texas as document number 20180070211. COUNTERCLAIM OF U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE 18-000111-505 Page 2 8. Under the terms of the Note and Deed of Trust, Suarez was required to pay when due the principal and interest on the debt evidenced by the Note, as well as any applicable charges and fees due under the Note. 9. The Loan Agreement further provides that should Suarez fail to make payments on the Note as they became due and payable, or fail to comply with any or all of the covenants and conditions of the Deed of Trust, then the lender may enforce the Deed of Trust selling the Property pursuant to applicable law and in accordance with the provisions set out in the Loan Agreement. 10. Suarez has failed to make his payments under the terms of the Loan Agreement. Notice of default and intent to accelerate was provided to Suarez by certified and regular U.S. mail at his last known address on April 9, 2018. Suarez did not cure the default, as a result, debt was accelerated on June 29, 2018. 11. Suarez filed this suit on to prevent U.S. Bank from conducting a scheduled foreclosure sale. U.S. Bank now files this counterclaim seeking an order from this Court allowing foreclosure to proceed. D. Cause of Action—Judicial Foreclosure 12. The foregoing paragraphs are incorporated by reference for all purposes. 13. U.S. Bank asserts a cause of action for judicial foreclosure against Suarez. U.S. Bank, as the current legal owner and holder of the Note and the mortgagee of record, has the right to enforce the Note and Deed of Trust. U.S. Bank has fully performed its obligations under the Loan Agreement; however, Suarez have not complied with the Loan Agreement by failing to substantially perform material obligations required under its terms (principally, the payment of amounts due under the contract, among others). COUNTERCLAIM OF U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE 18-000111-505 Page 3 14. U.S. Bank seeks a judgment allowing it to foreclose on the Property in accordance with the Deed of Trust and Texas Property Code section 51.002, or alternatively, a judgment for judicial foreclosure. 15. U.S. Bank has been forced to hire the undersigned attorneys to seek an order allowing foreclosure as a result of the Pittman's failure to comply with the Loan Agreement. U.S. Bank is therefore entitled to and seeks judgment against Suarez for its reasonable attorneys' fees in this action, both through trial and in the event of a subsequent appeal, as provided by the Deed of Trust signed by Suarez. U.S. Bank seeks an award of attorneys' fees as a further obligation on the Note and not as a money judgment against Suarez personally. 16. All conditions precedent have been performed or have occurred. WHEREFORE, PREMISES CONSIDERED, Defendant/Counter-Plaintiff U.S. Bank requests that U.S. Bank have and recover a judgment against Plaintiff/Counter-Defendant Felix Robert Suarez allowing it to proceed with foreclosure in accordance with the Deed of Trust and Texas Property Code section 51.002, or alternatively, judicial foreclosure, plus its interest and attorneys' fees, and all costs of suit as a further obligation on the debt. U.S. Bank further requests such other and further relief to which it may be entitled. COUNTERCLAIM OF U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE 18-000111-505 Page 4 Respectfully submitted, By: /s/ Philip W. Danaher MARK D. CRONENWETT Texas Bar No. 00787303 mcronenwett@mwzmlaw.com PHILIP W. DANAHER Texas Bar No. 24078395 pdanaher@mwzmlaw.com MACKIE WOLF ZIENTZ & MANN, P. C. 14160 North Dallas Parkway, Suite 900 Dallas, TX 75254 Telephone: (214) 635-2650 Facsimile: (214) 635-2686 ATTORNEYS FOR DEFENDANT / COUNTER-PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was served via ECF Notification on this 26th day of June, 2019, upon the following: Robert C. Newark, III office@newarkfirm.com 1341 W. Mockingbird lane, Suite 600W Dallas, TX 75247 Counsel for Plaintiff /s/ Philip W. Danaher PHILIP W. DANAHER COUNTERCLAIM OF U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE 18-000111-505 Page 5