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My Austin-based practice focuses on real estate litigation and civil appeals.

I brief and argue appeals in civil cases in the Texas Supreme Court, Texas intermediate appellate courts, the 5th Circuit U.S. Court of Appeals, and the U.S. Supreme Court. I also write friend-of-the-court (“amicus”) briefs for interested persons, organizations, and entities.

The real estate trial work includes HOA law, fraud, construction disputes, and mortgage disputes. I don't represent HOA's or banks, and I don't sue ordinary consumers. I sometimes handle difficult judgment collections for other attorneys because of my experience with turnover receiverships. That work involves getting property into the hands of the court for purposes of satisfying a judgment.

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 serve as lead counsel and coordinating counsel in these cases.

CASE UPDATES

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.

PENDING SHORT-TERM RENTAL LITIGATION


VICTORY FOR HOMEOWNER ON APPEAL IN ZGABAY V. RIVER CHASE PROPERTY OWNERS ASSOCIATION SHORT TERM RENTAL BAN LITIGATION:

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). Zgabay has a second home in Comal County, near New Braunfels. He sometimes rents it out for short terms. The River Chase HOA said that STR’s are not a “residential use.” On cross-motions for summary judgment, the district court in Comal County said that “residential use” requires some undefined minimum period of occupancy, without providing guidance what minimum number of days that means. Zgabay appealed on the basis that the deed restrictions plainly do not require any period of owner-occupancy, or ban leasing, or otherwise require anyone, owner or tenant, to reside at the premises for any minimum duration. Indeed, the declarations do regulate duration for some uses, but pointedly do not regulate the duration of leasing. I presented oral argument to the in this case on March 25, 2015.

WEIGAND ET AL. V. LITKEY ET AL. SHORT TERM RENTAL LITIGATION (TRAVIS COUNTY):

This is a neighbor-on-neighbor deed restriction suit where one owner sent a cease-and-desist letter to a neighbor 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.

TARR V. TIMBERWOOD PARK OWNERS ASSOCIATION
SHORT TERM RENTAL BAN LITIGATION (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. Mr. Tarr's motion requesting a win on the merits of the case, as well as the HOA's new request that all its homeowners be sued, are located
HERE. A decision on the cross-motions for summary judgment is anticipated shortly, but it is hoped that the homeowner victory in Zgabay, reported above, may lead the court to side with the homeowner.

DOWNEY V. BRIDLEWOOD RANCHES OWNERS ASSOCIATION SHORT TERM RENTAL BAN LITIGATION (HAYS COUNTY):

This case involves deed restrictions almost identical to those in the
Zgabay case reported above. Since it is in the same appellate district, the Zgabay case seems likely to control and lead to a homeowner win. The HOA, enforcer of the deed restrictions, threatened suit against Mr. Downey for renting out his home for short terms, asserting that the deed restrictions ban short-term rentals. Downey sued to block the enforcement action and asked the court to declare the meaning of the restrictive covenants. Mr. Downey's motion requesting a win on the merits of the case, as well as the HOA's new request that all its homeowners be sued, are located HERE. The motions are likely to be heard in early Fall, 2015.

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