Beware of Spring Break Rental Fraud

Trey Wilson San Antonio Texas Real Estate Attorney, Trey Wilson Real Estate Lawyer in San Antonio wrote:

From Fraud.org, here's an interesting warning of Spring Break rental and other vacation scams that target students. In past years, we have heard of such scams being publicized through Craigslist and other websites.

This year, I heard a radio report of a scammer who went so far as to set-up a fake website to book "reservations" and take advance payments. Of course, the condos for which the reservations were made do not exist or were not affiliated with the scammers.  A similar fraud employing fake bookings was reported on the Today Show.

Spring break scams plaguing students

Spring is officially here! But with temperatures across the country still in winter-like digits, what better reason to look forward to spring break escapes! Still recovering from the Great Recession and feeling the pinch of the ever-increasing cost of higher education, many students will be looking for deals as they make their spring break travel plans.

Scammers are keenly aware of this and are advertising custom-tailored schemes to defraud this vulnerable group. Police in many tourist areas, meanwhile, are often so busy trying to perform their normal duties while maintaining order during the often wild spring break period that they cannot track down all fraudsters, who may keep under the radar by swindling a relatively small amount of money compared to other criminals. Knowing that this lowers the chance of being caught, scammers have become increasingly bold.

Indeed, local media organizations and business groups across the country are warning students of this widespread fraud. In general, these notices caution of any offer that seems too good to be true. The reports show that these scams come in many different forms, from offers that promise vacation packages for far less than other companies, to misleading information on what accommodations a hostel has, to travel packages that seem to include flight or hotel reservations but really only offer something unrelated, and worth quite less. The list goes on and on.

Thankfully, there are ways for students and other consumers to protect themselves. Here are some guidelines students should consider before booking.

• Proceed with caution when considering deals that seem to offer a lot (five-star hotels, premium airfare, etc.) for a very low price or that require immediate payment to retain a rate. When something seems too good to be true, it generally is.
• Ensure that all details from the purchase are in writing, including the total cost, any restrictions that may apply, and the exact names of the hotels or airlines promised (if applicable).
• Be wary of any claims that say you “won” something, especially if the offer is unsolicited.
• Pay for the vacation with a credit card so you are protected if something goes wrong, and so authorities can more easily track the fraudulent vender. In fact, try to avoid companies that require payments by only cash, check, or wire transfer.
• Go online to see if the company has an established reputation. Look to see if other consumers have complained of hidden fees or sudden price increases.
• If a third party company claims to have purchased airline tickets or hotel reservations, call the companies yourself to ensure that the claim is valid. Some consumers have traveled long distances only to find that the hotel they thought they were staying at does not exist.

If It Isn't in Writing It Probably Didn't Happen: New Opinion Touches on the Texas Statute of Frauds and Real Estate

Trey Wilson San Antonio Texas Real Estate Attorney, Trey Wilson Real Estate Lawyer in San Antonio wrote:

In a short opinion, the Fourth Court of Appeals appears to have reaffirmed the importance of the statute of frauds in agreements related to real estate. However, its "re-affirmation" turns on a legal technicality, and the Court could well have missed an opportunity to clarify and expound-upon the law relating to a legally-recognized exception to the SOF, and done so under an interesting set of facts.

In its opinion issued in Bakke Development Corp. v. Albin on March 16, 2016, the 4th Court upheld a summary judgment granted by the trial court on a waiver-type basis by focusing on the fact that one of the possible grounds upon which the summary judgment could have been rendered was not challenged by the Appellant (Bakke). 

Bakke did challenge the trial court's ruling on the "traditional" portion of the Motion for Summary Judgment granted in Albin's favor, but apparently failed to challenge the no-evidence portion on appeal.  In such instances,"we must uphold the summary judgment" said the 4th Court, citing Krueger v. Atascosa Cnty., 155 S.W.3d 614, 621 (Tex. App.—San Antonio 2004, no pet.) (“Unless an appellant has specifically challenged every possible ground for summary judgment, the appellate court need not review the merits of the challenged ground and may affirm on an unchallenged ground.”) and Lowe v. Townview Watersong, L.L.C., 155 S.W.3d 445, 447 (Tex. App.—Dallas 2004, no pet.) (“Because summary judgment may have been granted on the unchallenged no-evidence grounds, we must affirm the trial court’s summary judgment.”). Ultimately, the Court concluded that "the no-evidence grounds raised in Albin’s hybrid motion for summary judgement could, if meritorious, fully support the judgment..." and since they were not challenged, the trial court's ruling could not be disturbed.

The facts and trial court's grant of summary judgment in the case are worth review: 

Bakke, a real estate development firm, contacted the Albins to discuss the prospect of a joint venture to develop real property in Boerne that the Albins had inherited. Under the proposal, the Albins were to dedicate their land to the venture, and Bakke would contribute finances and development expertise. The ultimate objective was to develop the property for apartment and mixed-use.

The parties never signed a written partnership agreement or otherwise  signed any writing embodying the terms of the the alleged oral agreement. Rather, it appears that both parties employed lawyers for the purpose of negotiating the terms of a limited partnership agreement, but ultimately reached an impasse. After the negotiations were terminated, Bakke filed suit in Kendall County District Court alleging that there was already an oral general partnership that achieved the same ends as would have the limited partnership that could not be negotiated, that Albin had breached the fiduciary duty owed to Bakke, constructive trust, fraud, unjust enrichment, and promissory estoppel.

The trial court granted Albin's “Motion for Partial Summary Judgment on Applicability of the Statute of Frauds” and adjudged that “the Texas ‘statute of frauds,’ Texas Business and Commerce Code Section26.01, applies to the oral agreement alleged by the Plaintiff in this cause and prohibits judicial enforcement of that agreement under any theory or cause of action for which the statute of frauds is a defense recognized under law.”  Bakke later amended its claims in the suit, and Albin then filed a hybrid motion for summary judgment, asserting that the agreement was unenforceable as a matter of law, and that there was no evidence to support Bakke Corp.’s claims for breach of the partnership agreement, breach of fiduciary duty, fraud, constructive trust, and unjust enrichment. This MSJ, too, was granted by the trial court, but the court did not specify whether the "traditional" or "no-evidence" grounds formed the basis for the Summary Judgment.

On appeal, Bakke failed to challenge the no-evidence basis (if any) of the trial court's grant of Albin's hybrid MSJ.  As described above, this defect in the appeal resulted in a technical victory for Albin without the Fourth Court addressing the merits of the parties' arguments.

After reading the parties' briefs, this commentator believes that the trial court (and in-turn the Fourth Court) reached the right decision. However, the Court of Appeals passed on a golden opportunity to expound-upon and clarify the "Partial Performance Exception" to the Texas Statute of Frauds, as it relates to agreements for the conveyance of real estate. 

Under that exception, if an agreement involves an oral (non-written) conveyance of real property, it may be removed from the Statute of Frauds upon proof of: 1) payment of consideration; 2) possession by vendee that is exclusive and adverse to the owner of title of the land; and 3) the making of valuable improvements upon the land without consent of the conveying party. Carpenter v. Phelps, 391 S.W. 3d 143, 149 (Tex. App.—Houston [1^st Dist.] 2011, no pet.); see also Pappas v. Gounaris, 311 S.W.2d 644, 646 (Tex. 1958). 

While Bakke alleged facts that might have fit into the Partial Performance Exception, the Court never reached that issue. Thus, we'll have to wait for another day and another case for the Texas courts of appeals to develop this important concept in Texas real estate law.

Interplay of Limitations and Imputed Notice (Based on Public Deed Records) in Real Estate Fraud / DTPA Claims

Trey Wilson San Antonio Texas Real Estate Attorney, Trey Wilson Real Estate Lawyer in San Antonio wrote:

THE RECORDING STATUTE 

Texas law provides for a comprehensive statutory recording system which provides in part that “[a]n instrument ... properly recorded in the proper county is notice to all persons of the existence of the instrument.” TEX. PROP. CODE ANN. § 13.002. 

The statute makes sense because purchasers of real estate are -- or definitely should be -- on notice of the contents of the deed history/ chain of title of property that they have purchased. Often, this notice arises from a title search performed as part of a closing.

THE STATUTE IS NO DEFENSE TO REAL ESTATE FRAUD

The recording statute has often, but unsuccessfully, been asserted as a defense in claims against a Seller of real property.  The defensive theory is generally something akin to:

"If the Plaintiff would have searched the deed records, he would have known that I did not... [own all of the land that I purported to transfer to him under our contract]or [disclose the fact that I had conveyed the property to somebody else] or [disclose the easement running through the property], etc., etc."

Despite the plain language of the recording statute, Texas courts have very rarely -- if ever - held that a purchaser’s failure to search the deed records would bar his fraud action against the seller. See Graham v. Roder, 5 Tex. 141, 147 (1849) (fraud and deceit action maintainable despite fact that plaintiff “did not go to the records, the proper source for information”); Buchanan v. Burnett, 102 Tex. 492, 119 S.W. 1141 (1909); Ojeda de Toca v. Wise, 748 S.W.2d 449 (Tex. 1988) (imputed notice under the real property recording statutes does not operate as a defense to a buyer’s action for damages arising out of deceptive trade practices). Instead, Courts have stated that the purpose of this "recording statute" is "to notify subsequent purchasers ... and not to give protection to perpetrators of fraud” See Boucher v. Wallis, 236 S.W.2d 519, 526 (Tex. Civ. App.— Eastland 1951, writ ref’d n.r.e.).

GENERAL STATEMENT OF THE LAW

Thus, it can fairly be stated that the law is currently as follows: In Texas, the existence of a recorded instrument (deed, easement, etc.) in real property records does not, in and of itself, bar a claim arising from fraud or deceptive trade practices related to the property made the subject of the instrument.  That is, imputed notice arising from the deed records does not constitute a direct defense against a real estate fraud or DTPA claim.

However, the implications of a recorded instrument on whether a real estate fraud claim is barred by limitations -- and when a cause of action accrues -- are far more dicey.  

RECORDING STATUTE AND LIMITATIONS

In Scott vs. Furrow (Opinion delivered March 9, 2016), the Fourth Court of Appeals recently addressed the interplay of the recording statute and statutes of limitations in the context of a Buyer's claim that a Seller of real estate and that Seller's broker had engaged in misrepresentations related to the waterfront character of  property in Seguin, Texas.

After a detailed analysis of established case law reflecting the General Statement of Law provided above in this post, the 4th Court concluded that, while the Texas Supreme Court's holding in Wise prevents a defendant from using imputed notice from the deed records as a direct defense against a DPTA claim, that Defendant could rely upon the deed records to establish when a plaintiff should have discovered a claim for limitations purposes. 

In reaching this conclusion, the 4th Court relied on Am. Homeowner Pres. Fund, LP v. Pirkle, No. 02-14-00293-CV, 2015 WL 5173066, at *9 n.11 (Tex. App.—Fort Worth Sept. 3, 2015, pet. filed) (citing Wise to note that failure to search deed records would not preclude fraud claim by purchaser but further noting limitations on such a claim would begin to run immediately because the purchaser was on notice of the deed records for purposes of limitations), Sherman v. Sipper, 152 S.W.2d 319 (Tex. 1941) (fraud will prevent the running of a statute of limitation only until such time as the fraud is discovered, or by the exercise of reasonable diligence it might have been discovered).

The Fourth Court also reconciled their decision with the Texas Supreme Court’s more recent holding in Ford v. Exxon Mobil Chem. Co, in which a plaintiff sued for real estate fraud, but -- in addressing a statute of limitations defense -- the Texas Supreme Court held constructive notice from the deed records provided sufficient notice for limitations to immediately begin to run. 

THE TAKE-AWAY

The take-away form the 4th Court's opinion in Scott vs. Furrow is this: A Plaintiff with a right in real property is not excused by another's fraud from reviewing open and available title records that reveal a title defect, and timely discovering such defect. Even in the face of fraudulent misrepresentation, a Plaintiff must exercise reasonable diligence to discover a title defect, and where -- by the exercise of such diligence he could have discovered such defect and would have known of his right -- he is legally presumed by the recording statute to have known it, and limitation will run against his claim from the time he could have made such discovery by the exercise of ordinary diligence.

Today is the deadline for comments to TxDOT SH 46 Project in Comal County

Trey Wilson San Antonio Texas Real Estate Attorney, Trey Wilson Real Estate Lawyer in San Antonio wrote:

Today, March 14, 2016, is the deadline for the public and stakeholders to submit written comments to the Texas Department of Transportation's preliminary plans for "improving" the 7-mile stretch of SH 46 from Bulverde Road to FM 3159 (Smithson Valley Road) in southern Comal County.  The preliminary plans follow an initial study performed by TxDOT and its consultants.

The greater SH 46/US Hwy. 281 vicinity is being considered  for an ambitious transportation Project that may include expansion of SH 46 from two to six lanes in the area of the City of Bulverde and Smithson Valley High School. Also contemplated is construction of sidewalks and bicycle accommodations along the Project area and the insertion of raised concrete medians . These medians would largely prevent left hand turns on the stretch of SH 46, except at major intersections, which would  be controlled by traffic lights.

Expansion of the highway Right-of-Way will necessarily include acquisition of private property through condemnation/eminent domain, and possibly re-alignment of roadways intersecting with SH 46 in the Project area.

TxDOT has done a good job of getting the word out, and has set-up a dedicated website and an email list for interested parties to receive Project information, news and updates. 

A public meeting was held on March 3, 2016, and TxDOT presentation materials from that meeting may be viewed here.  

Following the public meeting, TxDOT called for public comment to its plans -- all of which are still preliminary.  Those comments may be submitted by email to: sh46info@gmail.com or by mail to:

Texas Department of Transportation (TxDOT)                    

SH 46 Improvement Project                          

P.O. Box 5459                                                               

Austin, Texas 78763                   

I submitted a lengthy comment last week on behalf of a client who owns a relatively large property in the Project area. The following are our "General Comments" to the Project:

(i)     the Project budget has been a moving target. Cost estimates from as low as $40M (which presently appears as the combined total of projects 0121507027 and 021401044 on the TxDOT “Project Tracker” website) to $66M (which was discussed when we met in February 2016) to $77M (which was identified at the March 2016 public meeting as an “Early Construction estimate”) have all been publicized by TxDOT. The public, the legislators responsible for balancing the State budget and TxDOT’s financial partners in the Project all deserve transparency in representations concerning the true cost of the Project;

(ii)     the Project’s geographic boundaries have also been somewhat elusive. Initial reports placed the western reach of the Project at Spring Branch Rd. Currently-published information (including the TxDOT project tracker website) extends that boundary to Bulverde Rd., while schematics presented for public view show plans for even further extension west on SH 46 to a point of “tapering” that almost reaches Anhalt Rd. Transparency and dissemination of accurate information about the Project’s boundaries are critical for meaningful public input and understanding of the Project;

(iii)     the 6 lane configuration is vastly more expensive than the original publicized plan for expansion to 4 lanes, and requires acquisition of significantly more Right-of-Way (“ROW”) through condemnation of private property. In many areas (including the area of the Farm) existing TxDOT-owned ROW would be sufficient to expand SH 46 to 4 lanes, so the cost of acquiring additional ROW could be avoided entirely. While traffic counts on SH 46 in the areas immediately adjacent to or east of US 281 may justify 6 lanes, a 4 lane configuration is more than ample for areas that are several miles from that intersection (including the area of the Farm);

(iv)   the proposed, widespread use of medians in the Project imposes serious accessibility challenges for many properties situated along SH 46. Requiring U-turns by large vehicles and preventing left-hand turns into businesses and residences will increase traffic dangers, negatively impact businesses that are currently accessible to both east and west-bound traffic, and promote congestion at U-turn points.  The portions of US 281 in far north Bexar County (between Evans Rd. and Marshall Rd.) are a debacle, and TxDOT should not duplicate those traffic circulation nightmares on SH 46;

(v)      as an alternative/complement to the Project, TxDOT and its partners should consider near-term development/expansion of other access corridors to US 281 and/or Bexar County from southern Comal County west of US 281. A fundamental flaw in the Project’s global objective is failure to include any accommodation for diverting traffic away from SH46 west of US 281 or the 46/281 intersection.  Rather, the Project would promote traffic congestion on SH46 by ignoring other practical, necessary and less-costly roadway expansions which would promote traffic-flow away from the already-congested intersection.  For example, Blanco Rd. south of SH46 has seen tremendous development of residential subdivisions. Yet, despite this rapid growth, and Blanco’s existing length to a terminus point located just north of downtown San Antonio, no viable plan presently exists for expanding Blanco Rd. north of Camp Bullis, or creating an east-west route from Blanco to US 281 between Borgfeld Rd. (to the south) and SH 46. Similarly, and as acknowledged in the City of Bulverde Transportation Master Plan, Bulverde Rd. south of SH46 (near the City of Bulverde) is under-burdened and ripe for expansion – especially as the City and its Chamber of Commerce actively promote increased development and commerce. At a minimum, present consideration should be given to expanding Blanco Rd. and Bulverde Rd. as viable thoroughfares, and investigation of connecting Bulverde Rd. with Spring Branch Rd. as a single north-south corridor is warranted;

(vi)  incorporation of bicycle lanes and pedestrian paths into the Project are superfluous. Inclusion of these features contemplates (and would promote) modes of travel that are unsafe and out of place on a state highway whose traffic volume is predicted to increase manifold in the coming decades;

(vii)    the Project’s stated objective of improving sight distances by “flattening” curves in the existing configuration of SH46 are disparately applied in publicized schematics. While TxDOT literature promotes the benefits of acquiring additional ROW to improve sight distance, numerous existing, sharp curves do not appear slated for expansion/improvement. If improved sight distance is a valid objective, it should be applied with equal impact along all areas of SH 46 whose existing terrain or curves endanger motorists;

(viii)   the SH 46 corridor encompasses numerous sensitive environmental features, including waterways (streams, creeks and tributaries), century oaks, limestone outcrop and other geological features, Hill Country terrain and groundwater recharge areas. TxDOT should proceed with extreme concern for preserving the environmental integrity of the Project area, and the numerous wildlife species that inhabit it;

(ix)     the area of the SH 46 corridor is of significant historical and archeological value to the State of Texas, and numerous artifacts from Native Americans and German settlors abound in the Project area.  Arrowheads and other evidence of Native American life are also frequently found in the Project area; and

(x)      the Project area, including SH 46, itself, is prone to serious flooding. The area has experienced significant flood events within the past year, and on numerous prior occasions. The addition of expanded impervious cover will promote storm water runoff, and present increased drainage problems in an area that already suffers from a lack of flood mitigation. While the Project plans call for concrete drainage features near the intersection of US 281 and SH 46, there appears to be no accommodation for the additional storm water that will affect the eastern and western extremities of the Project area.

If you live or work near the Project area, please participate in the public comment period, and let TxDOT know your thoughts. We are fortunate to live in a nation and State where public input can be expressed and will be heard!

Foreclosure Buyers and Real Estate Flippers - You Need to Watch 99 Homes!

This movie is overly-dramatic, but a fair depiction of the potential for a dirty underbelly of the home-flipping industry. Good acting and definitely worth a watch!

Trey Wilson San Antonio Texas Real Estate Attorney, Trey Wilson Real Estate Lawyer in San Antonio wrote:

This Blog now on the State Bar of Texas blogs page

Trey Wilson San Antonio Texas Real Estate Attorney, Trey Wilson Real Estate Lawyer in San Antonio wrote:

I'm very pleased to announce that this blog has been  added to the State Bar of Texas Law Blogs page and list of syndicated blogs for posts to be featured on Texas Bar Today.

Be sure to check out all of the Texas attorney blogs on the list! There's a great variety of blogs and writing styles that span the full spectrum of law and life as a lawyer.

5th Circuit: Last Minute Approval for Mortgage Modification Does Not Excuse Mortgage Arrears

Posted by Trey Wilson San Antonio Texas Real Estate Attorney, Trey Wilson Real Estate Lawyer in San Antonio 

Last Minute Approval for Mortgage Modification Does Not Excuse Couple from Mortgage Arrears, Says 5th Circuit: Evidence insufficient to show a couple was damaged by the lengthy application process

Lawrence v. Federal Home Loan Mortgage Corp., et al.

In 2008, Ronald and Jennifer Joyce purchased a home with a mortgage, serviced by Wells Fargo (“Wells”), and secured with a deed of trust.  Two years later, the couple contacted Wells to discuss payment options because they were having trouble making their mortgage payments.  At that time, the homeowners submitted an application through Wells for a mortgage loan modification program under the federal Home Affordable Modification Program (“HAMP”). 

Federal Home Affordable Modification Program (“HAMP”) Was Their Only Hope

HAMP was a program created under President Obama’s Administration to help homeowners avoid foreclosure and to stabilize the nation's housing market.  Under HAMP, eligible homeowners could lower monthly mortgage payments and get into more stable loans at present-day interest rates.  12 U.S.C. §§ 5219, 1715z-23.  HAMP also provided a way out of a home loan that avoids foreclosure altogether for homeowners who were unable maintain their mortgage for the long term.  Making Home Affordable.  See www.makinghomeaffordable.gov (accessed Feb 16, 2016).  According to the Lawrences, participation in the HAMP program was the only way to avoid foreclosure.

Bank Denied HAMP Modification, Sites Texas Constitution

Wells, however, denied the HAMP application because the deed of trust for the home was secured with a Texas Cash Out Loan.  According to Wells, the terms of Texas Cash Out Loans, governed by Article XVI, Section 50(a)(6) of the Texas Constitution, may not be modified and are not eligible for HAMP modification.  Wells did, however, create a payment plan, but the Lawrences were not able to keep up with the payments and completely defaulted in June 2011.  

Foreclosure Looming on the Horizon

            Wells started foreclosure proceedings while trying to work with the Lawrences to avoid foreclosure by rescheduling the foreclosure sale four times.  In the meantime, the Lawrences applied several times for HAMP modification.  In a surprising turn of events at the 11^th hour, Wells agreed that the mortgage was eligible for modification under the federal program, but that the couple would have to hurry because the foreclosure had been rescheduled for December 6.  The Lawrences applied on November 14, but their application remained incomplete until December 2.  Wells informed the couple that the bank was not able to fully review all of the application materials and that the December 6 foreclosure would go on as planned.  The Lawrences remained in the home until 2013 without making any further payments.     

The Lawrences Took Wells Fargo to Court

            The Lawrences sued Wells for fraud and fraudulent-inducement in state court, and Wells removed the dispute to federal court and moved for summary judgment before a district court via a Magistrate Judge’s review.  The Magistrate concluded that the Lawrences raised a genuine issue as to whether their eligibility for a HAMP modification had been misrepresented to them over the months leading up to the eventual approval of their application.   Accordingly, the Magistrate gave his recommendations to the district court.  However, the district court granted summary judgment to Wells, citing insufficient evidence to show damages for fraud and fraudulent-inducement.

The Lawrences have appealed to the Fifth Circuit Court of Appeals, asserting common-law fraud and fraudulent inducement.  Specifically, they argue that the district court ignored evidence of their out-of-pocket damages when communicating with Wells via mail; that the district court ignored evidence that the bank’s misrepresentations denied them the opportunity to sell their home to mitigate their damages, and lastly, that the arrears that accumulated on the mortgage are damages.  The Lawrences have taken the position that the bank lead them on and caused the missed payments, thus increasing the monthly payments under the repayment agreement.  Therefore, the big issue before the Fifth Circuit was whether Wells was liable for fraud or fraudulent-inducement from 2010 to 2011 when Wells denied HAMP applications, but then allowed the HAMP modification less than thirty days before the foreclosure sale. 

Definition of Fraud Under Texas Law

            Under Texas law, fraud occurs when a (1) material misrepresentation is made that is (2) false; (3) at the time the representation is made…[and]; (4) the speaker makes the representation with the intent that other party should act upon it; [that the] (5) the party acted in reliance on the representation; and (6) as a result, the party suffered an injury.  Italian Cowboy Partners, Ltd. V. Prudential Ins. Co. of Am., 341S.W.3d 323, 337 (Tex. 2011).

The Fifth Circuit Weighed In

          Here, the Fifth Circuit affirmed the district court’s findings.  First, the Court said the Lawrences did not offer evidence showing damages as a result of corresponding with Wells.  While postage and time spent filling out the applications may be damages, the couple did not offer receipts from the post office, or a log of their time away from work.  “Mere assertion of injury, unsupported by evidence, is insufficient to survive summary judgment.”  Likensv. Hartford Life & Accident Ins. Co., 688 F.3d 197, 202.

            Secondly, the Court said the Lawrences offered no evidence to demonstrate that they had planned to sell their home.  They did not demonstrate that they had hired a realtor, cleaned the home or made improvements in anticipation of selling, nor did they list their home for sale.  “Without some evidence that [the bank’s] misrepresentations denied them the chance to actually sell, claim[s] that they would have sold are “speculation” and that is not enough to oppose summary judgment.  Id. 

            Lastly, the Court explained that while the new payment agreement did increase the monthly payments, it did not alter the total obligation under the mortgage.  As a result, “the Lawrences may not claim the arrears as damages or injury, because those amounts were already owed under the original mortgage.”  In re Swift, 129 F.3d 792,799 (5th Cir. 1997). 

The Court of Appeals affirmed the district court’s judgment, holding that there is insufficient evidence to show that the Lawrences suffered damages because the claimed damages were either not true damages, were too speculative or were merely unsubstantiated assertions. 

Collecting and Preserving Evidence is Critical

Preserving and showing evidence is critical to winning in court.  Notice that the Fifth Circuit never actually commented as to whether it believed that Wells committed fraud or fraudulent inducement, or acted in a gray area.  Even though the Magistrate at the district court found the Lawrences to have raised a genuine issue, the buck stopped at the lack of solid evidence on appeal.   

This article is intended for educational and informational purposes only and does not substitute legal advice.  If you are in need of real estate or property legal counsel, please contact my office at (210) 223-4100.