I brief and argue civil appeals in the Texas Supreme Court, Texas intermediate appellate courts, the 5th Circuit U.S. Court of Appeals, and the U.S. Supreme Court. I write friend-of-the-court (“amicus”) briefs for interested persons, organizations, and entities.
My real estate trial practice includes HOA law, fraud, construction disputes, and mortgage disputes. I never represent HOA's or banks, and I don't sue consumers. I do sometimes handle the collection of judgments for other attorneys because of my experience with turnover receiverships, but most of the judgment debtors are either companies or scammers.
My mortgage work includes Texas-only class actions and statewide multi-district litigation (MDL) against major lenders and servicers such as Nationstar Mortgage, Bank of America, and JPMorgan Chase. Past cases have involved GMAC Mortgage and Wells Fargo. I am lead counsel and coordinating counsel in these cases.
TEXAS MORTGAGE LOAN MODIFICATION INFO
If you have a Texas mortgage loan that was "modified" to include interest-only payments or a balloon payment, click on this link. Pending class actions I have filed on behalf of Texas residents are against Bank of America, JPMorgan Chase (Chase Home Finance), and Nationstar Mortgage. The Nationstar class action is part of a Texas statewide MDL proceeding involving consolidated cases from all over Texas. All the cases relate to "modifications" of Texas mortgage loans, including HAMP modifications.
HOT TOPIC OF 2015: SHORT-TERM RENTAL LITIGATION
TEXAS SUPREME COURT CHALLENGE TO HOMEOWNER WIN ON APPEAL IN ZGABAY V. RIVER CHASE PROPERTY OWNERS ASSOCIATION :
In this important case, the Texas Third Court of Appeals in Austin held on August 28, 2015, that the “residential use” requirement in most deed restrictions DOES NOT BAN SHORT-TERM RENTALS. The key reason why is that absent clear limitations on lease duration, the traditional rule of construing restrictive covenants to favor the free use of land controls. That is a vital rule for property owners subject to the whims of HOA boards. The case is Zgabay v. NBRC Property Owners Assoc., No. 03-14-00660 (Tex. App. — Austin August 28, 2015).
On October 27, 2015, the HOA filed a petition for review asking the Texas Supreme Court to take up the case and reverse the court of appeals. Check back here for updates.
VICTORIES FOR HOMEOWNER IN WEIGAND ET AL. V. LITKEY ET AL. SHORT TERM RENTAL LITIGATION (TRAVIS COUNTY):
This is a neighbor-on-neighbor deed restriction suit in a subdivision with a mandatory HOA. An owner sent a cease-and-desist letter to a neighbor (my clients, the Weigands) demanding a halt to short-term rentals. The complaining neighbor also asserted nuisance and maximum-lease-occupancy claims. My clients, who rent their house out for short terms, sought summary judgment seeking to validate their short-term rental rights and establish the number of bedrooms for purposes of the lease-occupancy statute, Tex. Prop. Code § 92.010 (3 adults per bedroom). On March 9, 2015, the court granted summary judgment to my clients, declaring that their rental property contains five bedrooms. Subsequently, the court determined that the defendants had made judicial admissions in their testimony and pleadings, amounting to a capitulation on all the declaratory judgment claims asserted by my clients. As often occurs in short-term rental litigation, the court has declared that short term rentals are permissible, but the party on the losing side of that court determination keeps the litigation going with counterclaims concerning noise, parking, nuisance, etc.
Loss for homeowner at the trial court level in TARR V. TIMBERWOOD PARK OWNERS ASSOCIATION (BEXAR COUNTY):
The HOA, which assumed the role of enforcer of the deed restrictions and fined Mr. Tarr for renting out his home for short terms, asserted that the deed restrictions ban short-term rentals. Mr. Tarr sued to block the enforcement action and the fines and asked the court to declare the meaning of the restrictive covenants. Despite the homeowner victory in Zgabay, reported above and involving similar facts, the County Court at Law in Bexar County granted summary judgment to the HOA in an order almost identical to that reversed by the Austin Court of Appeals. An appeal will be forthcoming in the San Antonio Court of Appeals.
SETTLEMENT OF DOWNEY V. BRIDLEWOOD RANCHES OWNERS ASSOCIATION SHORT TERM RENTAL BAN LITIGATION (HAYS COUNTY):
This case involved deed restrictions almost identical to those in the Zgabay case reported above. Since it is in the same appellate district and has the same facts, the case settled in principle consistent with the homeowner’s right to rent for short terms on common “residential use” wording. The HOA has notified the homeowners that notwithstanding the present restrictive covenants, it intends to conduct a vote on amending the restrictive covenants to ban short-term rentals.