Court: Former property owner not owed relief in fraud case against homeowners' association

By Charmaine Little | Mar 15, 2019

HOUSTON --  The Texas 14th Court of Appeals ruled against a homeowner March 7 in his allegations of unfair debt collection practices against his homeowners’ association and related entities.

Justice Frances Bourliot wrote the opinion, and Chief Justice Kem Frost and Justice Tracy Christopher concurred.  

Although a trial court ruled in favor of Robert Burton and didn’t foreclose the property in question (six condominium units) that Burton owned, the trial court ruled against Burton in his lawsuit against the homeowners’ association, Leawood Homeowners Association Inc., its attorney and trustee, its property manager and property management company, Independent Management & Investment, LLC. 

Burton appealed with the current court, but the appeals court affirmed the ruling from the 157th District Court in Harris County.


Chief Justice Kem Frost   txcourts.gov

Burton sued the defendants for fraud in various forms, unfair debt collection practices, deceptive trade practices, removal of cloud on title, trespass to try title and tortious interference with a contact. He also wanted a declaration that the foreclosures were done incorrectly. Burton was awarded attorneys fees and post-judgment interest. But the lower court also ordered that his removal of cloud on title and trespass claims be denied. Burton was also denied relief to his other claims, sparking the appeal.

In a majority of his issues, Burton said the lower court erred when it failed to award him damages against Leawood for allegedly filing fraudulent papers. But the appeals court disagreed. 

“Our review of the entire record similarly demonstrates that the trial court’s implied findings are not against the great weight and preponderance of the evidence,” the court ruled. It also said there was enough evidence to show that Leawood was negligent and there wasn’t enough evidence to show that the alleged negligence was intentional.

The court also said, “Burton’s assertions that Leawood violated the Texas Debt Collection Act (TDCA) are based on the filing of the trustee’s deeds and on service of the erroneous redemption statements. Burton has not asserted that Leawood violated the TDCA in any other way.”

Ultimately, Burton failed to show that the lower court incorrectly ruled against him in his TDCA complaints.

Burton’s shortcomings in proving he was actually a consumer under the Texas Deceptive Trade Practices Act also led to the appeals court ruling against him.

As for the other claims, Burton did not raise breach of contract issues and did not provide any evidence of why he should be owed prejudgment interest. He also didn’t bring any support to show why the case should be remanded for more reconsideration.

This all started after Burton failed to pay his association dues and the association sued. He was served through his actual property manager, and the court ruled against Burton, saying he owed court fees and post-judgment interest. 

The association’s attorney and trustee, Wayman L. Prince, then issued Burton with notices of sale for the property amid alleged delinquent amounts owed, which Burton said violated the Texas Property Code. Prince bought the property at the foreclosure price, but no money was ever exchanged. 

Burton maintained the foreclosures weren’t done correctly and, therefore, were void. Still, he asked for more details about how much he owed in order to get back the property, saying the amount outlined in a deficiency letter was too high.

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