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:

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.

Texas "Transfer on Death Deed" Inches Closer to Becoming a Reality

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

The proposed "Texas Real Property Transfer on Death Act" was passed by the Texas Senate on April 9, 2015, and appears poised to be passed by the Texas House (if time doesn't run out before the end of the 84th Legislative Session).  

This legislation, sponsored primarily by Rep. Jessica Farrar (Houston's 148th District) seeks to establish a Transfer of Death deed instrument in Texas. According to the bill analysis, the proposal is a response to the common scenario where a Texas real estate owner passes away intestate (without a will), and their property passes by intestate succession to certain categories of heirs defined by statute. 

This can lead to a cloud on the title due to multiple family members co-owning the property.  Sometimes these heirs are not on good terms, are not in contact, or are otherwise incapable of having common ownership of the inherited property.  This seems to be a particularly frequent problem for low-income homeowners in Texas who cannot afford a lawyer to prepare a will, or whose heirs cannot afford to probate a will after the death.  In such instances, consolidating ownership can be so costly and complicated that families abandon or otherwise lose their property. 

The legislation suggests that the newly-conceived transfer on death (TOD) deed instrument would allow heirs to efficiently obtain clear title to property, and serve as an alternative to probate for real property insofar as a TOD deed would be considered as a "will substitute" for real property (thereby 

allowing a property owner to transfer real property to a named beneficiary upon the owner's death without the need for the beneficiary to go through probate).

If successful, the "Texas Real Property Transfer on Death Act" would be added as a new Chapter 114 of the Texas Estates Code, effective September 1, 2015.

Check Out my New Magazine Articles

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

My article on the rise of water rate litigation and my news brief on a proposed ban of taxation on real estate transactions both appear in this month's issue of Elite Attorney SA. Be sure to check them out in this high-quality magazine that highlight's San Antonio's legal community.

New York Penthouse Sells for $100,500,000.00 - Most Expensive Home Sale Ever??

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

According to an article in Forbes Life  Magazine, a New York City penthouse has broken residential purchase price records by selling for $100.5 m. The article identifies the property as "the duplex penthouse of the 89th and 90th floor of One57," and lists the buyer as P 89-90, LLC.

One57 is a 2014 skyscraper located in midtown Manhattan that was completed in 2014. It is one of the two tallest residential buildings in the U.S. One57 has already developed a legacy for secrecy as a "Billionaire's Club."

The building was designed by French architect Christian de Portzamparc.

I predict that this price record won't stand for long...  It also won't be eclipsed in San Antonio, Texas anytime soon!

Changes in Life Circumstances May Require Deed Changes

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

Each week we receive several calls from folks whose life circumstances have changed, and, as a result, they desire to change the name on a deed.  The typical requests relate to marriage and/or divorce, and consist of adding or removing another individual's name to the title of residential real estate. In other cases, property owners wish to grant property to loved ones.

While the process of creating a deed or other legal instrument to convey or change title is somewhat simple for an experienced Texas real estate lawyer, the implications and legality of such an instrument may be more complex. Here are some important considerations associated with adding or removing names from existing deeds:

1.  Removal of a person's name from title to property does not alleviate that person from mortgage or other indebtedness. Stated simply, if you are a borrower (or co-borrower) on a loan for the purchase of real estate, conveying your interest in title to another person (including your co-borrower) does not in any manner absolve you of your indebtedness under a mortgage note.  The note is a contract between you and the lender, and unless such lender agrees to allow a co-borrower to assume the full indebtedness, you are still "on the hook" for the loan, even if you do not reside in or desire to own the collateralized property.

2.  Likewise, addition of a new spouse's or other person's name to title to property encumbered by a mortgage lien (or deed of trust evidencing such an encumbrance), does not mitigate the existing borrower's obligations under mortgage note indebtedness, or work as an assumption by the added-person of the mortgage note balance.

3.  Conveying an interest in the property could violate the terms of an existing mortgage lien (deed of trust), and result in acceleration of the entire mortgage balance. Most deeds of trust contain a "due on sale" clause. This clause should be reviewed before changing title to real property that is not owned free and clear of any indebtedness.

4.  Adding a spouse's name to real property might change the character of that property from separate property to community property. This is all well and good until a divorce is looming or inheritance of the property is considered.

If you have considered these factors, and still desire to move forward with making deed changes, you should be sure that a real estate lawyer who is knowledgeable about deed drafting and real estate transactions handles the process for you.

Reason Numbers 1 and 2 for Why We Charge for Initial Consultations

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

In an earlier blog post, I introduced the reader to the philosophy behind our decision to charge an initial consultation fee of $350.00.  Below are Reasons 1 and 2 (out of 5) explaining in detail why we believe that the value delivered from your time consulting with us far exceeds any "free" interview or "free consultation" you may receive from another law firm in San Antonio, Texas.

1.             YOUR  CONSULTATION WILL BE MORE OF A STRATEGY SESSION, AND WILL BE CONDUCTED BY A REAL ESTATE ATTORNEY 

Most of the law firms that advertise for a “free consultation,” typically use legal assistants or paralegals to meet with prospective clients. Frequently, these non-lawyers are trained to hurriedly interview prospective clients in a meeting in which no attorney is present. The purpose of such "consultations" is to serve a “gatekeeper” function to determine whether speaking with the potential new client is even worth an attorney’s time.  

All of our consultations are handled by a licensed real estate attorney in San Antonio, who will understand your case and be able to explain the legal issues implicated by your particular fact situation. You will have the opportunity to interview that attorney, who will simultaneously interview and educate you.  Following our consultation, you and we will instantly know whether we are a good “fit” for your needs, as well as whether the financial arrangement under which we would consider undertaking your case is feasible.

2.             OUR INITIAL CONSULTATION IS A STRATEGY SESSION and LEARNING TOOL FOR YOU -- NOT A SALES PITCH FOR US

Attorneys who advertise for a “free consultation” use this offer as a promotional gimmick to attract clients.  The consultations we offer are educational opportunities for the prospective client, and not a “sales closing" where we will try to convince you to hire us.  The purpose of an initial consultation with any lawyer should be for the prospective client to gain knowledge about their legal situation, including available strategies available for potential resolution, and potential time and cost factors.

Because of the vulnerable mental state of many prospective clients meeting with a lawyer for the first time, free consultations are breeding grounds for sales pitches that promise quick, cheap or simple solutions to complicated problems. Thus, the benefit of a consultation sways to the attorney’s advantage.

Our firm of San Antonio real estate lawyers fervently believes that initial consultations should function for the benefit of the prospective client. During our consultation, we will listen to you, review related documents, understand your desired outcome, and opine as to the likelihood of success in achieving that outcome. At the conclusion of our consultation, we will provide initial legal advice and make appropriate recommendations with the full understanding that not all legal matters require a lawsuit – or even an attorney. Sometimes we will advise that  we are not the best attorneys for you or your particular legal matter.  

Whatever the outcome, you will leave our consultation feeling far more knowledgeable about your legal situation than when you walked in.  We believe that this value far exceeds our consultation fee of $350.00.