CAUSE NO.

_______________

LARRY L. BOWERS and TAMMY BOWERS Plaintiffs, v. CITIMORTGAGE, INC, SELIM TAHERZADEH, TRUSTEE and ABRONIA, LLC Defendants

IN THE DISTRICT COURT

_________ JUDICIAL DISTRICT

WILLIAMSON

COUNTY,

TEXAS

PLAINTIFFS ORIGINAL PETITON

TO THE HONORABLE COURT:

Larry L. Bowers and Tammy L. Bowers, husband and wife and plaintiffs, complain of CitiMortgage, Inc., Selim Taherzadeh, Trustee, and Abronia, LLC defendants, and for cause shows: I. Discovery Level Plaintiff pleads that discovery should be conducted in accordance with a discovery control plan under Civil Procedure Rule 190.3.

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II. Parties and Service of Citation Plaintiffs are residents of Williamson County, Texas. Defendant CitiMortgage, Inc. is a New York corporation registered to conduct business in the State of Texas upon whom service may be had by serving its registered agent, CT Corporation System, 350 N. St. Paul, Ste. 2900, Dallas, Texas 75201; defendant Selim Taherzadeh, Trustee is an individual upon whom service may be had at 9442 LBJ Freeway, Suite 250, Dallas, Texas 75243; and defendant Abronia, LLC is a Texas limited liability company upon whom service may be had by serving its registered agent, Jocelyn A. Eppinger, 4000 FM 971, Georgetown, Texas 78626.

III. Plaintiffs Interest in Property Plaintiff is the owner of the following described real property: Lot 6, Block 21, Brushy Creek Subdivision Section Two, A subdivision in Williamson County, Texas, according to the map or plat of record in cabinet C, slide 324-331, of the plat records of Williamson County; as more particularly described in a deed to the plaintiff dated January 27, 1995, recorded in Volume 2671, Page 860 of the Official Records of Williamson County, Texas, a copy of which is attached as Exhibit A and incorporated by reference.

IV. Defendants Claim as Cloud on Title

On September 7, 2010, defendant Selim Taherzadeh, Trustee conducted a foreclosure sale on sale on behalf of defendant CitiMortgage, Inc, the current beneficiary under a Deed of Trust executed by plaintiff on April 28, 1998, for the benefit of Western Financial Bank, FSB and recorded as instrument number 9824572 in the Official Public Records of Williamson County, Texas. A copy of the Deed of Trust is attached as Exhibit B and
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incorporated by reference. A copy of the September 2010 Notice of Acceleration and Notice of Sale executed by defendant Selim Taherzadeh, Trustee is attached as Exhibit C and incorporated by reference. Defendant Abronia, LLC was the successful bidder at the foreclosure sale. Defendant Abronia notified plaintiff that it was now the owner of the subject real property and demanded that plaintiff vacate the property or pay rent, and that they grant access to the subject real property to Abronia and its representatives. A copy of defendant Abronias demand is attached as Exhibit D and incorporated by reference. V. Invalidity of Defendants Claim The September 2010 Notice of Acceleration and Notice of Sale, together with the

Trustees Deed under which defendant Abronia asserts an interest in the subject property that interferes with plaintiffs title, although appearing valid on their face, is in fact invalid and of no force or effect. Plaintiff will show that the foreclosure sale conducted by defendant Selim Taherzadeh, Trustee on behalf of defendant CitiMortgage was defective as set forth in the allegations below.

VI. Grounds Upon Which the Foreclosure Sale is Defective Plaintiff asks the Court to set aside the September 2010 foreclosure sale on the following grounds: A. Equitable Relief against Acceleration. On August 4, 2010, plaintiff Tammy Bowers was dealing with defendant CitiMortgage regarding payment of past due amounts. Mrs. Bowers informed defendant CitiMortgage that she was going through chemotherapy for breast cancer and had just gone through a surgical procedure for her cancer. Defendant CitiMortgages representative made no mention that Mrs. Bowers case had been transferred to an attorney or that her loan had been accelerated.
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Mrs. Bowers spoke with defendant CitiMortgage representatives on August 13, and August 16, continuing the dialogue of arranging for an installment payment plan to bring the loan current. Once again, defendant CitiMortgages representative failed to disclose that they transferred her file to an attorney and that her loan was in fact accelerated on August 16, 2010. Mrs. Bowers followed up with defendant CitiMortgage on August 27, 2010 and reached an agreement to wire $6,500 as the first step in an installment agreement. Defendant CitiMortgages representative instructed Mrs. Bowers to await a written agreement from CitiMortgage prior to wiring the funds. Defendant CitiMortgages representative once again failed to notify plaintiff that her loan had been accelerated and posted for foreclosure. Relying on this information and direction, Mrs. Bowers did not wire the funds or take any further action to protect her interest in the subject property. On September 9, 2010, Mrs. Bowers became aware that her home had been sold at the September 2010 foreclosure sale when she was met by defendant Arbonias representative outside her home. Mrs. Bowers immediately spoke with a representative from CitiMortgage, informing her of the recent development. According to the statements made by defendant CitiMortgages representative, the representative acknowledged that: (1) there was a pending installment payment agreement and that it was apparently mishandled; and (2) the foreclosure sale was our (defendant CitiMortgages) error and that she would put in an urgent request to rescind the foreclosure sale. At no time during this process were plaintiffs notified that their loan was accelerated or posted for foreclosure. Instead, defendant CitiMortgages statements and actions led plaintiffs to the conclusion that they had reached an agreement to enter into an installment agreement with defendant CitiMortgage. The power of acceleration is a harsh remedy and calls for scrutiny. See Vaughan v. Crown Plumbing & Sewer Serv., Inc., 523 S.W. 2nd 72,75 (Civ. App.-Houston [1st Dist.] 1975, ref. n.r.e.). Equitable relief against acceleration is available if the debtors default is the result accident, mistake, or the inequitable conduct of the creditor. Relevant to this determination are circumstances that tend to show that the holder exercised the option to accelerate not for the purpose of protecting the debt or preserving the security, but to
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coerce the maker to pay the remaining balance or risk foreclosure. Davis v. Pletcher, 727 S.W. 2nd 29, 35-36 (Tex.App.-San Antonio 1987, ref.n.r.e.) Plaintiffs had approximately $100,000 in equity in the subject property, making defendant CitiMortgages note well secured. Plaintiffs keep the subject property well maintained and insurance coverage is in place. Plaintiffs relied on defendants CitiMortgages statements and actions, to their detriment.

B. CitiMortgages Waiver of the Right of Acceleration CitiMortgage made a habit of accepting late payments from plaintiff for the period December 2009 through August 2010, and in so doing, waived their right of acceleration. McGowan v. Pasol, 605 S.W.2d 728, 732 (Civ.App.Corpus Christi 1980, no writ). This was not the first mistake made by defendants CitiMortage and Selim Taherzadeh, Trustee in the course of servicing plaintiffs loan. Plaintiffs loan was previously accelerated by defendant CitiMortgage and subsequently posted for foreclosure sale in December 2009. A copy of the December 2009 Notice of Acceleration and Notice of Sale executed by defendant Selim Taherzadeh, Trustee is attached as Exhibit E and incorporated by reference. The subject real property was also sold to defendant Abronia at the December 2009 foreclosure sale. Defendant CitiMortgage rescinded the sale on the day following foreclosure. Significantly, all of this happened without any notice to plaintiffs.

C. Noncompliance with Statutory Notice Procedures Defendants CitiMortage and Selim Taherzadeh, Trustee, failed to provide plaintiffs with the statutory notices required by Texas Property Code Section 51.002(b) and (d). As stated in the paragraph above, this was at least the second time that defendants CitiMortage and Selim Taherzadeh, Trustee failed to provide the statutory notices. Defendants CitiMortage and Selim Taherzadeh, Trustees failure to provide notices for the December 2009 sale, a
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sale they later rescinded, casts serious doubt on any recital in the September 2010 Trustees Deed. While recitals in a trustees deed give rise to a presumption of validity, the presumption can be rebutted by the debtor introducing evidence of specific failures. Houston Fist American Sav. V. Musick, 650 S.W. 2d 764, 767-768 (Texas.1983). Defendants CitiMortgage and Selim Taherzadeh, Trustees failure to provide notice of the December 2009 sale, and subsequent rescission of that sale, casts serious doubts on that they complied with the statutory notice provisions for the September 2010 sale. VI. Attorneys Fees Plaintiff has retained the law firm whose name is subscribed to this petition to represent plaintiff in the action and has agreed to pay the firm a reasonable fee for necessary services. An award of attorneys fees to the plaintiff would be equitable and just and authorized by Section 37.009 of the Civil Practice and Remedies Code.

WHEREFORE, plaintiff requests that the defendants be cited to appear and answer, and that on final trial, the Court render Judgment: 1. Declaring that September 2010 Trustees Deed is invalid, ordering it removed

from the title to the property made the subject of this litigation, and quieting title in the plaintiff. 2. Awarding the plaintiff judgment against the defendant for attorneys fees and costs

of suit, together with such other and further relief to which the plaintiff may be justly entitled.

Respectfully submitted, LORENZANA LAW FIRM PC

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By: Martin Cantu Texas Bar No. 03767440 Elias V. Lorenzana, Jr. Texas Bar No. 00794191 6836 Austin Center Boulevard Suite 140 Austin, TX 78731 Tel. (512) 338-0529 Fax. (512) 338-6005 Attorneys for Plaintiffs Larry and Tammy Bowers

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