ACCEPTED 03-14-00716-CV 4954793 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/20/2015 2:40:14 PM JEFFREY D. KYLE CLERK

No. 03-14-00716-CV _____________________________________ FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS

In the Third Court of Appeals 4/20/2015 2:40:14 PM JEFFREY D. KYLE _____________________________________ Clerk

JANOS FARKAS, Appellant, V. WELLS FARGO BANK, N.A. AND BRICE, VANDER LINDEN & WERNICK, P.C. N/K/A BUCKLEY MADOLE, P.C., Appellees. _____________________________________ On Appeal from Cause No. D-1-GN-11-003692 201st District Court, Travis County, Texas Hon. Lora J. Livingston, Judge Presiding

BRIEF OF APPELLEE WELLS FARGO BANK, N.A.

Susan A. Kidwell Robert T. Mowrey State Bar No. 24032626 State Bar No. 14607500 [email protected] [email protected] B. David L. Foster LOCKE LORD LLP State Bar No. 24031555 2200 Ross Avenue, Suite 2200 [email protected] Dallas, Texas 75201 John W. Ellis 214-740-8000 (Telephone) State Bar No. 24078473 214-740-8800 (Facsimile) [email protected] LOCKE LORD LLP 600 Congress Avenue, Suite 2200 Austin, Texas 78701 512-305-4700 (Telephone) 512-305-4800 (Facsimile) ATTORNEYS FOR WELLS FARGO BANK, N.A.

TABLE OF CONTENTS

Page

Index of Authorities ..................................................................................................iv 

Statement of Facts ...................................................................................................... 1 

Summary of the Argument......................................................................................... 4 

Argument.................................................................................................................... 6 

I.  The Trial Court Did Not Abuse Its Discretion in Overruling Farkas’s Objections to Wells Fargo’s Summary-Judgment Evidence........................... 6 

A.  The trial court did not abuse its discretion in overruling objections to the declaration of Michael Dolan. ................................... 7 

B.  Farkas waived any complaint about the remaining declarations. ....... 11 

C.  Conclusory assertions cannot establish harm...................................... 12 

II.  The Trial Court Did Not Err in Granting Summary Judgment on Farkas’s Claim for Violations of the Texas Constitution. ............................. 14 

A.  The requirements of § 50(a)(6) only apply to “new extensions of credit.” ............................................................................................. 14 

B.  Farkas’s constitutional claims fail, as a matter of law, because the alleged “breaches” of the DOT are not alleged constitutional violations. ..................................................................... 17 

C.  The trial court’s judgment may also be affirmed on no-evidence grounds. ............................................................................................... 22 

III.  The Trial Court Did Not Err in Granting Summary Judgment on Farkas’s Claim for Violations of the Texas Debt Collection Act. ................ 24 

IV.  The Trial Court Did Not Err in Granting Summary Judgment on Farkas’s Fraudulent-Lien Claim. ................................................................... 27

ii Prayer ....................................................................................................................... 31  Certificate of Compliance ........................................................................................ 33  Certificate of Service ............................................................................................... 33  iii INDEX OF AUTHORITIES Page(s) CASES Anderson v. Nat’l City Mortg., No. 3:11-CV-1687-N, 2012 WL 612562 (N.D. Tex. Jan. 17, 2012) ................... 8 Bierwirth v. BAC Home Loans Servicing, L.P., No. 03-11-00644-CV, 2012 WL 3793190 (Tex. App.—Austin Aug. 30, 2012, pet. denied) (mem. op.) ............................................................................. 29 Cornish v. Washington Mut. Bank, FA, No. 02-06-400-CV, 2007 WL 2285478 (Tex. App.—Fort Worth Aug. ^[9], 2007, pet. denied)................................................................................................ 11 Farkas v. Aurora Loan Servs., LLC, No. 05-12-01095-CV, 2013 WL 6198344 (Tex. App.—Dallas Nov. 26, 2013, pet. denied).................................................................................................. 9 First Am. Title Ins. Co. v. Strayhorn, 169 S.W.3d 298 (Tex. App.—Austin 2005), aff’d 258 S.W. 3d 627 (Tex. 2008) .......................................................................................................... 22 Golden v. Wells Fargo Bank, N.A., 557 Fed. App’x 323 (5th Cir. Feb. 20, 2014) ..................................................... 28 In re J.P.B., 180 S.W.3d 570 (Tex. 2005) ................................................................................ 6 Jaimes v. Fed. Nat’l Mortg. Ass’n, 930 F.Supp.2d 692 (W.D. Tex. 2013) ................................................................ 28 Jones v. JP Morgan Chase Bank, N.A., No. 4:13-CV-456, 2014 WL 2996673 (E.D. Tex. July 3, 2014) ........................ 28 Kerlin v. Arias, 274 S.W.3d 666 (Tex. 2008) ............................................................................ 8, 9 LaSalle Bank Nat’l Ass’n v. White, 246 S.W.3d 616 (Tex. 2007) ........................................................................ 16, 20 iv Lassberg v. Barrett Daffin Frappier Turner & Engel, L.L.P., No. 4:13-CV-577, 2015 WL 123756 (E.D. Tex. Jan. ^[8], 2015) .......................... 28 Liberty Mut. Ins. Co. v. Griesing, 150 S.W.3d 640 (Tex. App.—Austin 2004, pet. dism’d w.o.j.)......................... 26 Marsh v. JPMorgan Chase Bank, N.A., 888 F. Supp. 2d 805 (W.D. Tex. 2012) .............................................................. 30 Perdomo v. Fed. Nat’l Mortg. Ass’n, No. 3:11-CV-734-M, 2013 WL 1123629 (N.D. Tex. Mar. 18, 2013) ............... 28 Pickett v. Tex. Mut. Ins. Co., 239 S.W.3d 826 (Tex. App.—Austin 2007, no pet.) .......................................... 22 Rockwall Commons Assocs., Ltd. v. MRC Mortg. Grantor Trust I, 331 S.W.3d 500 (Tex. App.—El Paso 2010, no pet.) ........................................ 25 Seaprints, Inc. v. Cadleway Props., Inc., 446 S.W.3d 434 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ...................... 11 Sims v. Carrington Mortg. Servs., L.L.C., 440 S.W.3d 10 (Tex. 2014)...............................................................14, 15, 20, 23 Star-Telegram, Inc. v. Doe, 915 S.W.2d 471 (Tex. 1995) .............................................................................. 22 Steptoe v. JPMorgan Chase Bank, N.A., No. 01-14-00813-CV, 2015 WL 1263128, at *3 (Tex. App.—Houston [1st Dist. Mar. 19, 2015, no pet. h.) ........................................................18, 19, 26 Stringer v. Cendant Mortg. Corp., 23 S.W.3d 353 (Tex. 2000)...........................................................................14, 20 Superior Energy Servs., Inc. v. Sonic Petroleum Servs., Ltd., 328 S.W.3d 623 (Tex. App.—Eastland 2010, no pet.) ......................................... 8 Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608 (Tex. 2000)................................................................................... 7 Vincent v. Bank of Am., N.A., 109 S.W.3d 856 (Tex. App.—Dallas 2003, pet. denied).................................... 16 v Voice of the Cornerstone Church Corp. v. Pizza Prop. Partners, 160 S.W.3d 657 (Tex. App.—Austin 2005, no pet.) ..............................22, 24, 29 Wells Fargo Bank, N.A. v. Robinson, 391 S.W.3d 590 (Tex. App.—Dallas 2012, no pet.) ..............................16, 17, 23 CONSTITUTIONAL PROVISIONS TEX. CONST. art. XVI, § 50 ...................................................................................... 14 TEX. CONST. art. XVI, § 50(a)(6) ......................................................................passim TEX. CONST. art. XVI, § 50(a)(6)(D) .............................................................3, 16, 18 TEX. CONST. art. XVI, § 50(a)(6)(I) ......................................................................... 16 TEX. CONST. art. XVI, § 50(a)(6)(Q)(x) .............................................................15, 22 TEX. CONST. art. XVI, § 50(k) ................................................................................. 18 TEX. CONST. ART. XVI, § 50(t) ............................................................................. 2, 18 STATUTES TEX. CIV. PRAC. & REM. CODE § 12.001(d) ............................................................. 28 TEX. CIV. PRAC. & REM. CODE § 12.002............................................................ 28, 30 TEX. CIV. PRAC. & REM. CODE § 12.002(a) ............................................................. 29 TEX. CIV. PRAC. & REM. CODE § 12.002(a)(2) ........................................................ 30 TEX. FIN. CODE § 31.002(a)(34)............................................................................... 15 TEX. FIN. CODE § 392.001. ....................................................................................... 25 TEX. FIN. CODE § 392.403(a)(2)............................................................................... 27 vi RULES TEX. R. APP. P. 38.1(i).............................................................................................. 25 TEX. R. APP. P. 38.2(1)(B) ......................................................................................... 1 TEX. R. APP. P. 44.1 ................................................................................................... 7 Tex. R. Civ. P. 166a(c).........................................................................................7, 25 TEX. R. CIV. P. 166a(f) .......................................................................................7, 8, 9 TEX. R. CIV. P. 735.1 ................................................................................................ 18 TEX. R. CIV. P. 735.3 ................................................................................................ 18 TEX. R. CIV. P. 736 .........................................................................................3, 18, 26 TEX. R. CIV. P. 736.11(a) ........................................................................................... 4 TEX. R. CIV. P. 736.11 (c) .......................................................................................... 4 TEX. R. EVID. 801(d) .................................................................................................. 7 vii TO THE HONORABLE THIRD COURT OF APPEALS: After defaulting on a home-equity loan, Appellant Janos Farkas filed the underlying lawsuit to prevent Appellee Wells Fargo Bank, N.A., from obtaining an expedited court order to foreclose on his property. Although he succeeded in delaying foreclosure, he was unable to withstand summary judgment. Farkas’s brief essentially repeats his response to Wells Fargo’s motion (and his objections to some of Wells Fargo’s summary-judgment evidence). Those arguments were properly rejected by the trial court, so they provide no basis for relief on appeal. The trial court’s judgment should be affirmed in its entirety. STATEMENT OF FACTS Farkas’s “statement of undisputed facts” is incomplete. It also contains a number of inaccurate characterizations about documents in the record. Accordingly, Wells Fargo provides its own statement. See TEX. R. APP. P. 38.2(1)(B). On January 11, 2007, Farkas executed an Account Agreement (CR:47-61) and a Texas Deed of Trust (CR:70-81) securing a home equity line of credit in the principal amount of $103,441.00. The Account Agreement and the Deed of Trust will be collectively referred to as the “Loan Documents.” The Loan Documents define the “Borrower” as “Janos Farkas” and the “Lender” as “Wells Fargo Bank, N.A.” (CR:47, 70.) In accordance with Texas law, the Loan Documents state that they relate to “an extension of credit as defined by section 50(a)(6) and 50(t), Article XVI of the Texas Constitution.” (Id.) The Deed of Trust (“DOT”) securing the loan provides that “Borrower will be in default if (1) any payment required by the Debt Instrument or this Security instrument is not made when it is due . . . .” (CR:78.) In the event of a default, the DOT requires Wells Fargo to provide Farkas with notice before invoking remedies of acceleration and foreclosure. (CR:78-79.) The notice must specify: “(a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice will result in acceleration of the sums secured by this Security Instrument and sale of the Property.” (CR:79.) In accordance with Texas law, the DOT also states that “[t]he lien evidenced by this Security Instrument may be foreclosed upon only by a court order.” (Id.) On April 21, 2011, Wells Fargo, through its foreclosure counsel (Brice, Vander Linden & Wernick, P.C.), sent Farkas a “Notice of Default and Intention to Accelerate.” (CR:87.) In accordance with the DOT, the notice states that (a) “the loan is in default for failure to make the regular monthly payments required by the Note and Deed of Trust”; (b) the amount required to cure the default1 and the address to which payment should be made; (c) the default must be cured “within thirty (30) days of the date of this notice”; and (d) if the default is not cured by that date, “the Note will be accelerated and all sums secured by the Deed of Trust will be declared to be immediately due and payable.” (Id.)

Instead of curing his default, Farkas sent a letter “request[ing] a validation of debt under the Fair Debt Collection Practices Act stating the owner of the debt

(creditor) with its address.” (CR:200.) Wells Fargo provided Farkas with the current amount to cure the default ($19,604.23), the current amount to pay off the loan ($123,127.31), and the lender’s name and address. (CR:89, 203-04.) Farkas did not remit either amount, so on June 23, 2011, Well Fargo’s foreclosure counsel sent Farkas notice that the debt was being accelerated. (CR:90.)

In September 2011, as permitted by the DOT (CR:79) and Rule 736 of the Texas Rules of Civil Procedure, Wells Fargo applied for an expedited “court order allowing foreclosure of a lien under Tex. Const. Art. XVI, Section 50(a)(6)(D).”

(See CR:92.) But, before Wells Fargo could obtain an order, Farkas filed the underlying lawsuit challenging Wells Fargo’s ability to foreclose. (See CR:3.)

Farkas’s filing of an independent lawsuit automatically stayed Wells Fargo’s Rule 736 proceeding, which was subsequently dismissed See TEX. R. CIV. P. 736.11(a), (c).

Wells Fargo moved for traditional and no-evidence summary judgment on all of Farkas’s claims. (See CR:15.) Brice, Vander Linden & Wernick, P.C.

(“Brice”), which was also named as a defendant, did the same. (CR:343.) Farkas filed his own motion for partial summary judgment, and attached many of the same documents filed in support of Wells Fargo’s motion. (See CR:173.) He also objected to some of Wells Fargo’s summary-judgment evidence. (CR:505.)

After considering the motions, the responses, the pleadings, the arguments of counsel, and “all other matters properly before the Court,” the trial court granted

Wells Fargo’s and Brice’s motions, denied Farkas’s motion, overruled Farkas’s objections to the evidence, and entered a final judgment that Farkas take nothing on his claims. (CR:604-05.) This appeal ensued. (CR:608.)

SUMMARY OF THE ARGUMENT

1. Objections to Summary-Judgment Evidence: Farkas cannot cite any

legal authorities to support his contention that the trial court abused its discretion in overruling groundless objections to some of Wells Fargo’s summary-judgment evidence. So he relies on unsupported assertions that run afoul of the following principles:

 Statements in a business-records affidavit are not “hearsay”;  A judgment cannot “turn” on “irrelevant” statements, so complaints about them cannot establish reversible error;

 Statements based on personal knowledge need not be confirmed by documentary evidence;

 “Inconsistencies” between the amounts required to cure a default and the amounts required to pay off a loan at different points of time do not require striking the evidence;

 Generalized objections – unsupported by arguments based on legal

authorities or citations to the record – are insufficient to preserve error; and  Conclusory assertions that unproven errors “probably resulted in an improper judgment” are also insufficient to preserve error.

2. The Constitutional Claim: Farkas’s claim that Wells Fargo violated

Article XIV, § 50(a)(6) of the Texas Constitution is premised on a false theory.

None of the alleged “violations” relate to any constitutional requirements, so

Farkas’s claim fails as a matter of law. The trial court’s judgment may also be affirmed on no-evidence grounds.

3. The Texas Debt Collection Act Claim: Farkas failed to negate all grounds for summary judgment on his TDCA claim. That, by itself, requires that the judgment be affirmed. Farkas also waived any complaint on this issue by failing to provide a cognizable legal argument supported by citations to authority and the record. Finally, even if considered, Farkas’s argument should be rejected as contrary to the record and unsupported by the law.

4. The Fraudulent Lien Claim: Farkas makes little effort to salvage his

fraudulent-lien claim. His two-page “argument” contains no citations to the record, no legal argument supported by authorities, and fails to negate all grounds for summary judgment. His argument also fails on the merits. A notice of default

is not a “lien,” and Farkas’s hyper-technical complaints about statements in the notice neither constitute fraud nor caused any damages. Because his fraudulent- lien claim fails as a matter of law, it comes as no surprise that Farkas cannot cite to any evidence to support multiple elements that were challenged below.

In short, the judgment should be affirmed in its entirety as demonstrated more fully below:

ARGUMENT

I. The Trial Court Did Not Abuse Its Discretion in Overruling Farkas’s Objections to Wells Fargo’s Summary-Judgment Evidence.

Farkas reveals the weakness of his appeal by leading with an argument that the trial court erred in overruling objections to some of Wells Fargo’s summary- judgment evidence. (See Br. at 9-17.) But, by simply repeating the same arguments the trial court rejected, Farkas fails to show how the trial court abused its discretion. See In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (reviewing evidentiary rulings under abuse of discretion standard). Nor do his conclusory assertions about harm show how “the judgment turns on the particular evidence excluded or admitted,” as required for relief on appeal. See Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000); TEX. R. APP. P. 44.1. Farkas’s first argument should be summarily rejected.

A. The trial court did not abuse its discretion in overruling objections to the declaration of Michael Dolan.

In scattershot fashion, Farkas lodges various attacks on the business-records declaration of Michael Dolan. (See Br. at 12-15.) None have any merit.

Farkas first asserts that the Dolan declaration “contains inadmissible hearsay.” (Br. at 12.) However, “‘[h]earsay’ is a statement, other than one made by the declarant . . . offered in evidence to prove the truth of the matter asserted.”

TEX. R. EVID. 801(d) (emphasis added). Statements by a declarant in a business- records affidavit do not fall within this definition. That is why such affidavits are a valid and commonly-used form of summary-judgment proof. See TEX. R. CIV. P.

166a(c), (f).

Unable to back up his novel theory of “hearsay” with any citation to

authority, Farkas’s argument quickly morphs into unsupported assertions about the factual accuracy of two isolated statements in the affidavit. (See Br. at 12-13.) He first complains that Dolan’s statement that “home equity loan and lines of credit

were ‘available through Wells Fargo Home Equity Group’ is misleading and irrelevant to this proceeding.” (Br. at 13 (emphasis added).) But, because the judgment cannot “turn” on an “irrelevant” statement, Farkas’s first complaint does not concern reversible error.

Farkas also asserts that there is “zero documentation”2 to support Dolan’s

statement that “‘Wells Fargo Home Equity’ is a division of Wells Fargo Bank, N.A.” (Br. at 13.) But Farkas cites no authority requiring statements based on

personal knowledge to be supported by documentary evidence as well. To the contrary, the personal-knowledge requirement is satisfied when, as here, an affidavit (i) states that it is based on personal knowledge and the facts in it are true and (ii) shows the basis for the affiant’s personal knowledge. See TEX. R. CIV. P.

166a(f); Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008).

Dolan states that he has “personal knowledge of each of the matters stated herein, and they are true and correct.” (CR:43.) In addition, he explains the basis

for his knowledge: “I am employed as a Research and Mediation Manager for Wells Fargo Bank, N.A. (‘Wells Fargo’). I am also the custodian of the records of Wells Fargo. I have also personally reviewed Wells Fargo’s records regarding the 2 The record, in fact, does contain documentation to support Dolan’s statement. A letter from “Wells Fargo Bank, N.A. Home Equity Group” states that Farkas contacted “Wells Fargo Home Equity regarding [his] account.” (CR:64.) In addition, the Account Agreement identifies the account as a “Wells Fargo Home Equity Account.” (CR:47.) That evidence confirms the undisputable relationship between Wells Fargo Bank and one of its divisions, the Wells Fargo Home Equity Group. “A division of a corporation is not a separate legal entity but the corporation itself.” Superior Energy Servs., Inc. v. Sonic Petroleum Servs., Ltd., 328 S.W.3d 623, 631 (Tex. App.—Eastland 2010, no pet.). Similarly, a lender and a division of the lender are “the same entity for all intents and purposes.” Anderson v. Nat’l City Mortg., No. 3:11-CV- 1687-N, 2012 WL 612562, at *1 n.1 & n.3 (N.D. Tex. Jan. 17, 2012).

mortgage debt at issue in the above-captioned lawsuit (the ‘Loan’).” (Id.) Dolan also states “I am familiar with Wells Fargo’s lending and mortgage servicing practices, including the various groups and divisions within Wells Fargo through which it carries out those practices.” (CR:45.) These statements

are plainly sufficient to satisfy the applicable legal standard. See T EX. R. CIV. P. 166a(f); Kerlin, 274 S.W.3d at 668.

Farkas reveals nothing but desperation when he tries to question Dolan’s credibility. (See Br. at 13.) Dolan’s statement that he has been “employed by

Wells Fargo and its predecessor institutions” (i.e., banks acquired by Wells Fargo through various mergers) for “28 years” (CR:44) is not a claim that he started working for Wells Fargo more than 160 years ago, as Farkas tries to suggest. (Br. at 13.) Moreover, nothing in Texas law requires a business-records custodian to specify the exact number of years he has worked for his employer. See TEX. R.

CIV. P. 166a(f); Kerlin, 274 S.W.3d at 668. Thus, contrary to Farkas’s belief, the absence of such information does not cast any doubt on Dolan’s personal knowledge.

The Dallas Court of Appeals recently rejected similar challenges to a similar

affidavit in a similar appeal filed by Farkas. Farkas v. Aurora Loan Servs., LLC, No. 05-12-01095-CV, 2013 WL 6198344, at *3 (Tex. App.—Dallas Nov. 26, 2013, pet. denied). There, as here, “Farkas d[id] not cite to any evidence in the record controverting the appellees’ evidence.” Id. There, as here, his

“unsupported assertions that [an] affidavit is factually inaccurate [were] insufficient” to show reversible error. Id. And there, as here, the trial court properly considered the challenged affidavit as summary-judgment evidence. See id.

Farkas demonstrates utter confusion in arguing that Dolan’s declaration contains “inconsistencies when compared to . . . other [summary-judgment] evidence.” (See Br. at 14 (emphasis added).) The alleged “inconsistencies” are simply differences between the “amount required to cure Plaintiff’s default” on

March 22, 2011 ($2,013.30) versus June 20, 2011 ($19,604.23), and differences between those amounts and the amount required to pay off the entire loan

($123,127.31 as of June 20, 2011). (Compare CR:45, with CR:87, 203, 204.)

Farkas appears to assume that the “amounts owed” should have remained

constant over time. But he ignores the distinction amounts to cure the default and amounts to pay off the loan. He also ignores the impact of interest and other expenses (such as property taxes and attorneys’ fees related to foreclosure proceedings) that accrue over time. In short, the longer Farkas waited to cure his default, the more expensive any available cure became. That Farkas would point to these alleged “inconsistencies” as evidence of reversible error only confirms that he has no viable grounds to challenge the trial court’s ruling.

B. Farkas waived any complaint about the remaining declarations.

Resorting to hyperbole, Farkas transforms the alleged “inconsistencies” into

“wildly varying accounts as to the amounts allegedly owed.” (Br. at 15.) Then, without any citation to the record or supporting legal authorities, he claims that

“[t]he conflicting portions of all of these declarations should be struck due to inconsistencies.” (Id. (emphasis added).3) This two-sentence “argument” has multiple defects, any one of which is fatal:

First, Farkas’s generalized objection to “all of these declarations” (Br. at 15)

“fails to identify specific objectionable portions of the [declarations] or explain why any particular passages should be disregarded as [conflicting].” See

Seaprints, Inc. v. Cadleway Props., Inc., 446 S.W.3d 434, 442 (Tex. App.—

Houston [1st Dist.] 2014, no pet.); see also Cornish v. Washington Mut. Bank, FA, No. 02-06-400-CV, 2007 WL 2285478, at *3 (Tex. App.—Fort Worth Aug. ^[9], 2007, pet. denied) (“the part[y] objecting to an affidavit must identify the specific statements in the affidavit that are objectionable and state why they are objectionable”). Farkas’s complaints about unidentified but allegedly “conflicting portions” of the declarations are “inadequate” and, therefore, insufficient to preserve error. See Seaprints, 446 S.W.3d at 442.

Second, the declarations do not contain any “conflicting” statements.

Although Farkas complains about “wildly varying accounts as to amounts allegedly owed,” neither the Hooda nor the Foster declaration includes any

statement about amounts allegedly owed. (See CR:84-86, 150-51.) Only the Dolan declaration contains such statements, so there is not conflict between “all of these declarations.” Moreover, the amounts referenced in the Dolan declaration, which states that “[t]he amount required to cure Plaintiff’s default on the Loan as of March 22, 2011 was $2,013.30” and “[t]he amount required to cure Plaintiff’s default on the Loan as of July 25, 2011 was $4,002.64” (CR:45) are consistent with documentary evidence in the summary-judgment record. (CR:87&148; CR:69.)

Third, although the documentary evidence attached to the declarations shows variations in the amounts required to cure the default and the amounts required to pay off the loan at different times, those variations have already been explained. Farkas’s unfounded assumption that the “amounts owed” should have remained constant over time is unsupported by the record and defies common sense.

C. Conclusory assertions cannot establish harm.

Recognizing his burden to show that the alleged error “probably resulted in an improper judgment,” Farkas asserts that, “[i]f the Declaration of Michael Dolan were struck, Wells_Bank’s MSJ would have to be denied.” (Br. at 15.) But Farkas later concedes that the ruling on his objections “is not necessary nor dispositive of any ruling on Wells_Bank’s and Brice’s summary judgment motions concerning

TDCA claims.” (Br. at 27.) And he never explains why the ruling is “necessary and dispositive” of his other claims. Nor could he.

Wells Fargo presented multiple grounds for traditional and no-evidence summary judgment. (See CR:19-40.) Obviously, Wells Fargo did not have to

present any evidence to prevail on its no-evidence grounds. For that reason alone, the judgment does not “turn” on the evidentiary rulings and, therefore, Farkas cannot show that the trial court’s rulings constitutes reversible error.

In addition, Farkas cannot show that any of the traditional grounds require proof of the allegedly “disputed” (and entirely immaterial) facts over which Farkas obsesses. As explained more fully below, they do not. A judgment cannot turn on immaterial facts.

Finally, even if the Dolan affidavit were stricken in its entirety, evidence attached to his affidavit is duplicated elsewhere in the record.^[4] Because those documents are sufficient to support Wells Fargo’s traditional grounds, Farkas cannot show that striking the Dolan declaration would have had any effect on the outcome.

To sum up: Farkas has not shown that the trial court abused its discretion by denying his objections to some of Wells Fargo’s summary-judgment evidence.

Nor has Farkas shown how the alleged error was harmful. His complaints about the trial court’s evidentiary rulings provide no basis for reversal.

II. The Trial Court Did Not Err in Granting Summary Judgment on Farkas’s Claim for Violations of the Texas Constitution.

Farkas’s theory that Wells Fargo violated the Constitution by breaching terms in the Loan Documents (Br. at 17-23) is pure fiction. The alleged

“violations” do not involve conduct that is regulated by the Constitution, so they could never support a constitutional claim. Nor is there any evidence to support

Farkas’s repeated assertions that Wells Fargo failed to comply with the Loan

Documents. False assertions about imaginary “violations” cast no doubt on the trial court’s judgment.

A. The requirements of § 50(a)(6) only apply to “new extensions of credit.”

“[H]ome equity loans are subject to the requirements of Article XVI, Section

50 of the Texas Constitution.” Sims v. Carrington Mortg. Servs., L.L.C., 440

S.W.3d 10, 11 (Tex. 2014). “Section 50(a)(6), in its totality, establishes the terms and conditions a home-equity lender must satisfy to make a valid loan.” Stringer v. Cendant Mortg. Corp., 23 S.W.3d 353, 356 (Tex. 2000). The detailed constitutional requirements, however, only apply to “new extension[s] of credit.”

Sims, 440 S.W.3d at 17.

The term “extension of credit” refers to “‘direct or indirect advances of money . . . to a person that are conditioned on the obligation of the person to repay

. . . .’” Id. at 16 n.22 (quoting TEX. FIN. CODE § 31.002(a)(34)). If a transaction does “not involve the satisfaction or replacement of the original note, an advancement of new funds, or an increase in the obligations created by the original note,” then “it is not a new extension of credit that must meet the requirements of Section 50.” Id. at 17.

If, in making a new extension of credit, a lender fails to comply with section

50, it has 60 days to cure its failure by taking specified actions that include

returning any overcharges paid by the owner, sending written confirmation that the loan terms (e.g., interest rates) are only valid to the extent they comply with constitutional requirements, or modifying the loan agreement to comply with constitutional requirements. See TEX. CONST. art. XVI, § 50(a)(6)(Q)(x). Because the constitutional requirements only relate to new extensions of credit, the methods of cure necessarily involve taking actions to ensure that the extension of credit at issue, i.e., the initial loan agreement, complies with the law. See id. If a lender

“fails to correct [its] failure to comply not later than the 60th day after the date the lender or holder is notified by the borrower of the lender’s failure to comply,” then the lender or holder “shall forfeit all principal and interest of the extension of credit.” Id.

For example, § 50(a)(6)(I) “prohibits home-equity loans from being ‘secured by homestead property designated for agricultural use.’” LaSalle Bank Nat’l Ass’n v. White, 246 S.W.3d 616, 619 (Tex. 2007) (quoting TEX. CONST. art. XVI, §

50(a)(6)(I)). Thus, a home-equity loan secured by property designated for agricultural use violates the Constitution and is subject to forfeiture. Id.

The Constitution also “requires that a home equity note be secured by a lien

that may only be foreclosed by court order.” Wells Fargo Bank, N.A. v. Robinson, 391 S.W.3d 590, 595 (Tex. App.—Dallas 2012, no pet.) (discussing TEX. CONST. art. XVI, § 50(a)(6)(D)). However, as long as a deed of trust requires a court order for foreclosure, it complies with constitutional requirements. Id. In cases involving complaints about how foreclosure was conducted, the constitutional remedy of forfeiture is not appropriate. See id.

In short, “forfeiture is only available for violations of constitutionally mandated provisions of the loan documents.” Vincent v. Bank of Am., N.A., 109

S.W.3d 856, 862 (Tex. App.—Dallas 2003, pet. denied). “A borrower’s recourse for a lender’s failure to abide by the terms of his loan agreement is to assert

traditional tort and breach of contract causes of action,” not claims for violations of Article XVI, § 50(a)(6) of the Texas Constitution. Robinson, 391 S.W.3d at 595.

B. Farkas’s constitutional claims fail, as a matter of law, because the alleged “breaches” of the DOT are not alleged constitutional violations.

The fatal problem that condemns Farkas’s constitutional claim is that Farkas does not complain about any alleged violations of constitutional requirements.

Instead, he repeatedly asserts that Wells Fargo violated the DOT. (See Br. at 17-

21.) However, as a matter of law, alleged breaches of contract are not actionable under the Constitution. See Robinson, 391 S.W.3d at 595. Moreover, Farkas’s hyper-technical complaints about statements in a notice of default do not violate any terms in the DOT, much less rise to the level of a constitutional violation.

1. Farkas has not alleged any constitutional violation.

Farkas has never challenged the validity of the Loan Documents. Nor has he ever taken the position that Wells Fargo failed to satisfy any of the constitutional requirements to make a valid loan. Instead, he bases his “constitutional” claim on allegations that the notice of default refers to a “wrong” loan number, mentions

“non-judicial foreclosure,” and demands that Farkas cure his default “within 30 days” of the notice rather than “not less than 30 days” from the notice. (Br. at 19-

20.) There are two fundamental problems:

(i) Farkas’s complaints are groundless. The loan number: Farkas repeatedly asserts that the notice references the “wrong” loan number. However, the summary-judgment evidence shows that the “Loan Number” on the notice of default (0999617061) is an “internal reference

number” used by Wells Fargo and Brice for their own, internal purposes. (CR:46, 86.) The undisputed fact that the notice of default makes no reference to either the “Account Number” (650-650-4349999-1XXX) or the “reference Number”

(20063367500009) shown on the DOT is immaterial, because neither the Constitution nor the DOT require a notice of default to include any reference to a loan number.

The reference to “non-judicial foreclosure”: The Texas Constitution requires a lien on a home-equity loan to “be foreclosed upon only be a court order.” TEX. CONST. art. XVI, § 50(a)(6)(D) (emphasis added). From that language, Farkas assumes that the reference to a “court order” means a lender is required to pursue a “judicial foreclosure.” His assumption is false.

“Rule 736 [of the Texas Rules of Civil Procedure] provides the procedure for obtaining a court order, when required, to allow foreclosure of a lien containing

a power of sale in the security instrument . . . securing . . . a home equity loan, reverse mortgage, or home equity line of credit under article XVI, sections

50(a)(6), 50(k), and 50(t) of the Texas Constitution.” TEX. R. CIV. P. 735.1. A

Rule 736 court order permitting a non-judicial foreclosure is not a judicial

foreclosure. See TEX. R. CIV. P. 735.3; see also Steptoe v. JPMorgan Chase Bank, N.A., No. 01-14-00813-CV, 2015 WL 1263128, at *3 (Tex. App.—Houston [1st Dist.] Mar. 19, 2015, no pet. h.) (recognizing distinction between judicial foreclosure and Rule 736 proceeding to obtain court order “to proceed with a non-

judicial foreclosure”). When, as here,5 the “home-equity lender has contracted for the right of non-judicial foreclosure under a power of sale provision, [it] may choose to pursue the special procedure found in Rule 736 to obtain an order allowing it to proceed with a non-judicial foreclosure under the Texas Property

Code.” See Steptoe, 2015 WL 1263128, at *3. That is exactly what Wells Fargo did when it initiated a Rule 736 proceeding to obtain the requisite court order permitting non-judicial foreclosure. (See CR:92.) But Farkas obstructed Wells

Fargo’s efforts by filing this lawsuit and complaining about non-existent constitutional “violations.” (See CR:3.)

The deadline: Farkas’s hyper-technical suggestion that requiring payment within 30 days violates the DOT provision requiring payment “not less than 30 days” from notice is semantic nonsense. (See Br. at 20.) Because a 30-day deadline is both “within” 30 days of notice and “not less than” 30 days of notice, it complies with the DOT as a matter of law.

(ii) Farkas’s complaints are not actionable under the Constitution. As explained, the Constitution focuses on the terms of the initial loan

agreement, not the manner in which a lender may enforce that agreement in the event of a borrower’s default. See TEX. CONST. art. XVI, § 50(a)(6); Sims, 440

S.W.3d at 16 n.22. Thus, there is no language in § 50(a)(6) that pertains to notices of default, much less any language that:

 requires a lender to include any particular type of “loan number” on the notice (or prohibits foreclosure counsel from including its own internal reference number on the notice);

 requires a lender to specify the type of foreclosure remedy that will be conducted (or prohibits a lender from stating that it was asked to pursue a “non-judicial foreclosure in accordance with the terms of the Note and the Deed of Trust and applicable law”); or

 requires a lender to demand payment “not less than 30 days from the date notice [of default] is given” (or prohibits a lender from demanding payment “within 30 days of the date of this notice”).

(Contra Br. at 19-22.)

“When interpreting the Texas Constitution,” the Texas Supreme Court

“‘rel[ies] heavily on its literal text and must give effect to its plain language.’”

LaSalle Bank, 246 S.W.3d at 619 (quoting Stringer, 23 S.W.3d at 355). Applying

that principle, the Court “decline[s] to engraft [unwritten] prohibition[s] onto the constitutional language.” Id. This Court should do the same. Because nothing in the Constitution prohibited Wells Fargo from referencing an internal loan number, pursuing non-judicial foreclosure, or demanding payment within 30 days, Farkas’s complaints about the notice of default cannot support a constitutional claim.

2. Farkas has not even alleged facts that would support a claim for breach of contract.

Unable to identify any constitutional requirement that was potentially violated, Farkas asserts that Wells Fargo failed to comply with the DOT. (See Br. at 17-21.) That unpleaded claim is not at issue. In any event, the notice of default establishes – on its face – that it includes all information required by the DOT.

(Compare CR:79 (DOT requirements), with CR:87 (notice).) Contrary to Farkas’s apparent belief, nothing in the DOT:

 required Wells Fargo to include any particular type of “loan number” on its notice of default (or prohibited foreclosure counsel from including its own internal reference number on the notice);

 required Wells Fargo to specify the type of foreclosure remedy that would be conducted (or prohibited foreclosure counsel from making a reference to a “non-judicial foreclosure in accordance with the terms of the Note and the Deed of Trust and applicable law”); or

 required Wells Fargo to demand payment “not less than 30 days from the date notice [of default] is given” (or prohibited foreclosure counsel from demanding payment “within 30 days” of the date the notice of default was given.

Consequently, Wells Fargo (through foreclosure counsel) could not have

“breached” the DOT by referring to an internal loan number, stating that it had been “requested to pursue a non-judicial foreclosure,” or demanding payment

“within 30 days.” (CR:87.) As the trial court correctly concluded, Farkas’s faulty constitutional theory and groundless allegations are insufficient to survive summary judgment.

C. The trial court’s judgment may also be affirmed on no-evidence grounds.

Implicitly recognizing his burden to negate all grounds for summary judgment,6 Farkas falsely contends that “Wells-Bank fails to challenge specific

element of complaint regarding liability under TEX. CONST. ART. XVI, §50(a)(6)(Q)(x).” (Br. at 23.) But again, Farkas fails to support his “argument” with any citation to legal authorities or the record. And again, his “argument” is premised on an invalid theory of liability.

Section 50(a)(6)(Q)(x) is the provision that specifies methods to cure a failure to comply with requirements applicable to new extensions of credit. None of those methods have any application here, because Farkas has never complained that the initial extension of credit violated section 50. Although he contends that

“there is no support” for an argument that “the constitutional obligation to fulfill

the terms of extension of credit” only applies to “origination of the extension of credit” (see Br. at 22), he ignores the Texas Supreme Court’s recent decision in 6 This Court has repeatedly recognized that, “[w]hen the trial court does not specify the basis for its summary judgment, the appealing party must show it is error to base it on any ground asserted in the motion.” Pickett v. Tex. Mut. Ins. Co., 239 S.W.3d 826, 840 (Tex. App.—Austin 2007, no pet.) (citing Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995)); accord First Am. Title Ins. Co. v. Strayhorn, 169 S.W.3d 298, 303 (Tex. App.—Austin 2005), aff’d 258 S.W.3d 627 (Tex. 2008); Voice of the Cornerstone Church Corp. v. Pizza Prop. Partners, 160 S.W.3d 657, 671 (Tex. App.—Austin 2005, no pet.). If the appellant fails to meet this burden, “the summary judgment must be affirmed.” Voice of the Cornerstone, 160 S.W.3d at 671.

Sims, 440 S.W.3d at 17. That decision makes it amply clear that the requirements

in section 50 only apply to “new extensions of credit.” Id. Farkas thus spins in circles when he asserts that “Wells_Bank had ample opportunity to cure” but

“chose not to cure.” (See Br. at 21.) Absent a violation, there is nothing to cure.

Farkas is also wrong in asserting that Wells Fargo did not allege specific no- evidence grounds relating to his faulty constitutional theory. In its motion for summary judgment, Wells Fargo argued:

Plaintiff has no evidence that the loan was invalid at the time of origination or somehow later became invalid. Moreover, Plaintiff has no evidence that any alleged violation was not cured, as no non- judicial foreclosure sale occurred.

(CR:37.)

Farkas cannot overcome his failure to allege and present evidence of a constitutional violation by asserting that Wells Fargo failed to cure an imaginary violation. Farkas presented no evidence of violation in response to Wells Fargo’s

motion in the trial court, and he cites none on appeal. For this additional reason, the trial court’s summary judgment on the constitutional claim should be affirmed.

To sum up: Farkas has never identified any constitutional requirement that was allegedly violated. When, as here, the terms of the original extension of credit comply with the Constitution, there is no constitutional violation. See Sims, 440

S.W.3d at 17; Robinson, 391 S.W.3d at 595. As the trial court correctly concluded, Farkas’s “constitutional” claim fails as a matter of law. (See CR:604-05.)

III. The Trial Court Did Not Err in Granting Summary Judgment on Farkas’s Claim for Violations of the Texas Debt Collection Act.

Farkas’s four-page issue on his Texas Debt Collection Act claim wrongly assumes that the only dispute is “over whether Wells_Bank’s actions were wrongful.” (See Br. at 24.) To the contrary, Wells Fargo moved for traditional summary judgment on two grounds: (i) the “factual allegations” on which Plaintiff bases his TDCA claim are conclusively disproven by the summary judgment evidence and, therefore, “fail as a matter of law”; and (ii) “Plaintiff’s TDCA claim is barred by the economic loss rule.” (CR:28-29.) In addition, Wells Fargo moved for no-evidence summary judgment on multiple grounds, including two that are particularly relevant on appeal: (i) “Plaintiff has no evidence that Wells Fargo threatened to take action prohibited by law”; and (ii) “Plaintiff has no evidence that the alleged violations of the TDCA caused him damages.” (CR:37-38.)

Farkas attempts to show “error” by relying on conclusory assertions that

Wells Fargo “threatened an act prohibited by law.” (Br. at 24.) He also contends that there is “ample evidence of the conduct actionable under [the TDCA].” (Br. at

25.) But there are multiple, fatal problems with his approach.

First, when, as here, the appellant fails to negate all grounds for summary judgment, “the summary judgment must be affirmed.” Voice of the Cornerstone, 160 S.W.3d at 671.

Second, Rule 38.1(i) of the Texas Rules of Appellate Procedure requires an appellant’s brief to “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” TEX. R. APP. P.

38.1(i). Farkas’s “argument” on the TDCA claim contains no citations to the record – and no meaningful citations to any legal authorities.^[7] When, as here, a

brief fails to comply with the requirements of Rule 38.1(i), a party waives the appellate points intended for the court’s consideration. Rockwall Commons

Assocs., Ltd. v. MRC Mortg. Grantor Trust I, 331 S.W.3d 500, 509 (Tex. App.—El

Paso 2010, no pet.).

Third, Farkas’s conclusory “argument” is contradicted by the record and the law. His TDCA claim appears to be premised on the same unsupported allegations he used in trying to salvage his constitutional claim – allegations that (i) “Wells

Fargo Bank, N.A.” “misrepresent[ed]” itself as “Wells Fargo Home Equity

Group”; (ii) Wells Fargo “misrepresented” the amount of Farkas’s debt; and (iii)

Wells Fargo “threatened non-judicial foreclosure of the property.” (See Br. at 26.)

The first two allegations are contradicted by the record, which may be why Farkas omits any citations to it: (i) “‘Wells Fargo Home Equity’ is a division of ‘Wells Fargo Bank, N.A.’ and is not a separate legal entity.” (CR:45; see also CR:64 (letter from “Wells

Fargo Bank, N.A.; Home Equity Group”).) There is no competent evidence to the contrary. Unsupported assertions are insufficient for relief on appeal. Liberty Mut.

Ins. Co. v. Griesing, 150 S.W.3d 640, 648 (Tex. App.—Austin 2004, pet. dism’d w.o.j.).

(ii) The variations in “the amount of debt” reflect differences between the amounts required to cure Farkas’s default versus the amounts requires to pay off

Farkas’s entire loan. (See, e.g., CR:45, 62-63, 87, 203-06.) These differing amounts also varied over time. (See id.) There is no evidence to show support

Farkas’s theory that these variations somehow amount to “misrepresentations.”

As explained (supra at 18-19), Texas law expressly permits a lender “who has contracted for the right of non-judicial foreclosure under a power of sale

provision [to] choose to pursue the special procedure found in Rule 736 to obtain an order allowing it to proceed with a non-judicial foreclosure . . . .” See Steptoe, 2015 WL 1263128, at *3. Thus, the statement that foreclosure counsel “has been requested to pursue non-judicial foreclosure process in accordance with the terms of the Note and Deed of Trust and applicable law” (CR:87 (emphasis added)) is, as a matter of law, not a threat to do something in violation of the law.

Fourth, because the “threatened” foreclosure never occurred, Farkas cannot

cite any evidence showing that he sustained actual damages as a result of the alleged violation, as required to recover on a TDCA claim. See TEX. FIN. CODE §

392.403(a)(2).

For any or all of these reasons, the trial court’s summary judgment that

Farkas take nothing on his TDCA claim should be affirmed.

IV. The Trial Court Did Not Err in Granting Summary Judgment on Farkas’s Fraudulent-Lien Claim.

Farkas’s final argument is largely pasted from his response to Wells Fargo’s motion for summary judgment. (Compare Br. at 29, with CR:555.) As a result, it suffers from some of the same fatal defects that plague his other arguments: it contains no citations to the record, and it contains no argument, supported by citations to legal authorities, negating all grounds for summary judgment. Those defects, alone, are enough to condemn his point. But there are additional problems, the most fundamental of which is that Farkas’s argument is premised on another false theory. In short, he assumes that any document relating to a home- equity loan (e.g., a notice of default) is a “lien” and, therefore, any alleged

“misrepresentation” in the “lien” (e.g., a reference to the “wrong” loan number) makes the lien “fraudulent.” It is hardly surprising that he cites no legal authority to support this remarkable proposition.

Under Chapter 12 of the Texas Civil Practice and Remedies Code, a “‘[l]ien’ means a claim in property for the payment of a debt and includes a security interest.” TEX. CIV. PRAC. & REM. CODE § 12.001(d). In the mortgage context, a

deed of trust is a lien; a notice that a borrower is in default is not. See Lassberg v. Barrett Daffin Frappier Turner & Engel, L.L.P., No. 4:13-CV-577, 2015 WL

123756, at *5 (E.D. Tex. Jan. ^[8], 2015); Jaimes v. Fed. Nat’l Mortg. Ass’n, 930

F.Supp.2d 692, 697 (W.D. Tex. 2013)); see also Jones v. JP Morgan Chase Bank, N.A., No. 4:13-CV-456, 2014 WL 2996673, at *8 (E.D. Tex. July 3, 2014)

(agreeing that “the assignment, appointment of substitute trustee, and foreclosure notices are not liens, and section 12.002 is not applicable to this case.”); Perdomo v. Fed. Nat’l Mortg. Ass’n, No. 3:11-CV-734-M, 2013 WL 1123629, at *5 (N.D.

Tex. Mar. 18, 2013) (collecting cases holding that an a lender’s use of an assignment, notice of foreclosure, or substitute trustee’s deed are not actionable

under Chapter 12); but see Golden v. Wells Fargo Bank, N.A., 557 Fed. App’x 323, 327 (5th Cir. Feb. 20, 2014) (unpublished) (recognizing a split in authority as to

“whether a document assigning a deed of trust constitutes a ‘lien or claim’ under

Section 12.002,” and noting that the “majority of federal district courts have held that a document assigning a deed of trust does not qualify as a ‘lien or claim’ under

Section 12.002”) (citations omitted).8 The statute further provides, in relevant part, that:

A person may not make, present, or use a document or other record with:

(1) knowledge that the document or other record is a fraudulent court record or a fraudulent lien or claim against real or personal property or an interest in real or personal property;

(2) intent that the document or other record be given the same legal effect as a court record or document . . . evidencing a valid lien or claim against real or personal property or an interest in real or personal property; and

(3) intent to cause another person to suffer . . . financial injury . . . .

Id., § 12.002(a).

Without any citation to the record, Farkas accuses Wells Fargo of “shirk[ing]” its “obligation to disprove an element” of Farkas’s claim. (See Br. at

29.) But Wells Fargo’s motion set forth several reasons – all supported by citations to legal authorities – why Farkas’s fraudulent-lien claim fails as a matter of law. (See CR:30-34.) Any one of those grounds is a sufficient basis upon which to uphold the judgment. Farkas negates none, and that is fatal. See Voice of the Cornerstone, 160 S.W.3d at 671.

As in the trial court, Farkas has no answer to Wells Fargo’s arguments that, as a matter of law, complaints about documents used to foreclose on a lien are not actionable under Chapter 12 if the underlying note and deed of trust are valid. (See

CR:555 (citing authorities).) So he attempts to divert the Court’s attention with assertions that “the statute does not require recordation of a document but rather merely making, presenting, or using the document,” and that “[e]ven a lis pendens is actionable under TEX. CIV. PRAC. & REM. CODE § 12.002.” (Br. at 29.) But those assertions are meaningless when, as here, the documents that allegedly

provide the basis for a Chapter 12 claim do not falsely “evidenc[e] a valid lien or claim against real or personal property.” See TEX. CIV. PRAC. & REM. CODE

§ 12.002(a)(2). Because Farkas does not contest the validity of the underlying note or DOT, his Chapter 12 claim fails as a matter of law. Marsh v. JPMorgan Chase

Bank, N.A., 888 F. Supp. 2d 805, 813 (W.D. Tex. 2012).

Farkas also fails to negate Wells Fargo’s no-evidence grounds for summary

judgment. Assertions about burden-shifting are no substitutes for evidence. And, as in the trial court, Farkas cannot cite any evidence that even remotely suggests:

 “a fraudulent lien or claim [was] made, presented, or used by Defendant”;

 “Defendant had knowledge that a lien or claim made, presented, or used was fraudulent”;

 “Defendant made, presented, or used a fraudulent lien or claim with intent that it be given the same legal effect as a valid lien or claim”; or  “Defendant made, presented, or used a fraudulent lien or claim with intent to cause Plaintiff injury.”

(CR:38-39.)

There is no such evidence because Farkas’s fraudulent-lien claim is premised on a false theory. For any or all of the above reasons, the trial court’s summary judgment on the fraudulent-lien claim should be affirmed.

PRAYER

For these reasons, Appellee Wells Fargo Bank, N.A. prays that the trial court’s take-nothing judgment be affirmed in its entirety. Wells Fargo also prays for any additional relief to which it may be entitled.

Respectfully submitted, LOCKE LORD LLP

By: /s/ Susan A. Kidwell Susan A. Kidwell State Bar No. 24032626 [email protected] B. David L. Foster State Bar No. 24031555 [email protected] John W. Ellis State Bar No. 24078473 [email protected] LOCKE LORD LLP 600 Congress Avenue, Suite 2200 Austin, Texas 78701 Telephone: (512) 305-4700 Facsimile: (512) 305-4800 Robert T. Mowrey State Bar No. 14607500 [email protected] LOCKE LORD LLP 2200 Ross Avenue, Suite 2200 Dallas, Texas 75201 Telephone: (214) 740-8000 Facsimile: (214) 740-8800

COUNSEL FOR APPELLEE WELLS FARGO BANK, N.A.

HYPERLINKED MATERIAL

CAUSE NO. D-1-GN-11-003692

JANOS FARKAS, § IN THE DISTRICT COURT OF Plaintiff, § § V. § TRAVIS COUNTY, TEXAS § WELLS FARGO BANK, N.A. AND BRICE, § VANDER LINDEN & WERNICK, P.C., § Defendants. § 201 ST JUDICIAL DISTRICT

DECLARATION OF MICHAEL DOLAN

STATE OF CALIFORNIA § § COUNTY OF LOS ANGELES §

I, Michael Dolan, hereby declare the following:

1. "I am of sound mind, over the age of twenty-one (21) years, and capable of making this Declaration. I am fully competent to testify to the matters stated herein. I have personal knowledge of each of the matters stated herein, and they are true and correct.

2. I am employed as a Research and Mediation Manager for Wells Fargo Bank, N.A.

("Wells Fargo"). I am also a custodian of the records of Wells Fargo. I have also personally reviewed Wells Fargo's records regarding the mortgage debt at issue in the above-captioned lawsuit (the "Loan").

3. The Loan Records attached hereto are kept by Wells Fargo in the regular course

of business, and it was the regular course of business of Wells Fargo for an employee or representative of Wells Fargo, with knowledge of the act, event, condition, opinion, or diagnosis recorded to make the records or to transmit information thereof to be included in such records; and the records were made at or near the time or reasonably soon thereafter.

EXHIBIT DECLARATION OF MICHAEL DOLAN PAGEl OF4

AUS:0567447/00358:551946v2 1 4. Attached hereto and incorporated by reference, are true and correct copies of the following records.

• Exhibit 1-A is a true and correct copy of the Wells Fargo Home Equity Account Agreement and Disclosure Statement executed on or about January 11, 2007 by Janos Farkas.

• Exhibit 1-B is a true and correct copy of the Reinstatement Quote for the Loan at issue in this suit that is good through November 1, 2013.

• Exhibit 1-C is a true and correct copy of the Payoff Statement for the Loan at issue in this suit that is good through November 1, 2013.

• Exhibit 1-D is a true and correct copy of a letter dated February 7, 2011, sent to Plaintiff Janos Farkas concerning the Loan at issue in this suit.

• Exhibit 1-E is a true and correct copy of relevant portions of Wells Fargo's internal loan notes concerning the Loan at issue in this dispute.

5. The attached records are the originals or exact duplicates of the originals.

6. As a Research and Mediation Manager for Wells Fargo Bank, N.A., part of my

job responsibilities include researching the facts of mortgage loans associated with litigation for which Wells Fargo acts or acted as the mortgagee and/or mortgage servicer. I have gained

personal knowledge of the facts stated herein through my experience in the mortgage industry, my job duties and responsibilities, my personal investigation, and my review of the Loan

Records. Prior to serving as a Research and Mediation Manager for Wells Fargo, I have been employed by Wells Fargo and its predecessor institutions and held various positions, including the position of vice president in charge of portfolio retention and operations analyst. During my tenure as vice president of the portfolio and retention group, I managed a team that included all

of the loan servicing functions of the company. During my 33 years of experience in the mortgage industry, including 28 years as an employee of Wells Fargo and its predecessor institutions, I have created, reviewed, and analyzed hundreds of loan records, including

DECLARATION OF MICHAEL DOLAN PAGE20F4

AUS:0567447/00358:551946v2 amortization schedules to determine total principal and interest payments owed based on the terms of the loan. I am familiar with Wells Fargo's lending and mortgage servicing practices, including the various groups and divisions within Wells Fargo through which it carries out those practices. I am also familiar with Wells Fargo's accounting systems and methods of calculating and loan payoff and reinstatement quotes. I am familiar with Wells Fargo's record keeping system. I have had access to and reviewed various corporate and business records of Wells

Fargo, and have had the opportunity to review the business records and account information

related specifically to the Loan at issue in this case. All statements made herein are true and correct and based upon my personal knowledge.

WeDs fargo Banlc, N.A, AGREEMENT DATE: OI-11-2Cill7 ACCOUNT#: 650..~1998 REFERENCE##; 20063367500009 h~ t'\.j ' I.... - ptt\811' .

Wells Fargo Home Equity Account Agreement and Disclosure Statement (the "Agreement") lbt-__ - l

THIS IS AN EXTENSION OF CREDIT AS DI!PJNED BY SECTION SO(a)(6) and (t), ARTICLE XVI OF THE TEXAS CONSTITUTION.

Borrower NU~e: 1ANOS FARKAS

Pnper&y Addrus: 6315 FARMDALE .LN, AUSTIN, TEXAS 78749

MaiUag Addretl for BUIIna Purposet (If different): PO BOX 180383, AUSTIN, TX 787t8 Credit Line Lfmlt1 103.441.00

SECfiON J: MY ACCOUNT AGREEM£NT !n thit Agreement, lhe words. "1,'' "me," "my," and "Borrower" (which also means "we," "us," "our," and 'Borrowers," if more than one customer signs flolow) rofet to eacb person who sipa this Aa-ment. Tho words "you," ''your," "Lender," and "the Bank" rercr to Wo1l11 Fargo Bantc. N.A. and any successor or assign or subsequent holder of this Aareemenl. This Agreement governs my Wd/& F11'1q HolM Epi(V .4cuurtt (the "Account'') with lire Bank. If moro chan OIMI person lllp1 Ibis Aafeement, we arejolatly aacl individually bound by its cenns. We ue separately llable co lhtt Bank for the entire a1D011nl owed on Cbc AAx:ount. We are each . liable as a principal and 1101 merely as a auaranror, even if one or more: ofudoea 1101 use the Aoc:ounL This Agreement is made whhout r«~ co olher asscr.s of any owoer ofdre property securing this Agreement or any owner•a spouae, unless dte owner or ownet'8 spouse oblatneclllte loan evidenced by thit Agreement by a~uaJ fraud. lfl or any person or enlily acting on my direction or will! my lcllowlcdge or oonseat commits ac1ua1 ftaud in oonneclion wllh lho loan appllcatioo procas or die documents executed In co!Diection wilb lhis A,reement, I will be lblly and personally liable under lhi& Agreement. ·· SECfiON 3: SECURITY INTEREST This Agreement is inteuded 10 evidei!Ge en "Exlension of Ctcdit" as lhat term Is defined by Section SO(al(6) and (t). Articlo XVI oftbe Texas Constihllion, and is sec:ured by a deed of trust including all modlftcacions, addellda and amendments thereto (tho "Seourity Jnmumcnt''), signed the same date as lhi.s Agreement. The Security IIJslnlment pves you a security intcmt In my homeslcad located atlhe address abown abow (the "Propmy").

SECfiON 3: MY WBLLS FARGO BOMB HIJUITY ACCOCINT My Account ls a revolving account. My credit limit fs shown above and will be displayed oo each of my billing statements. During !he Draw PCII'iod {del(;n"bcd below}, my available credf& will be my Clfoclit limit minus the sum of all W198id AdvantcS posted to my AecounL During the Draw Period. as I Rpllf the principal balance J owe on my Account, my available c:redic will be replenished. (~not to request an Advance Chllt would oause 1/15 ~entt~OI-09~7,13:44:53

50118221 my balance to exceed my credit limiL If at any time lhe balance ofmy Account. exceeds MY CRdit limit,! agree to immediately repay the amount lhat exceed. my credit Umil.

SECTION 4: MY ACCOUNT DURING THE DRAW PERIOD DBA'Y PERIOD My Account has a Dtaw Period of 10 ytat& and one month from the date of this Agreement during which I may ~est Advance.,. At the end of tbe Dnsw Period, I may requostlhaf the Bank renew the Draw Period for an addilionalJO year& and one month. The Bank may, at lts option, approve my request ro extond the Draw Period. I may not obtain Advances after tho Draw Period ends. Whon the Draw Period ends, the OUUialldln& unpaid Una of Credit Advances will convert to a Final Fi~ted Rate Advance as detailed below in Section S, MY ACCOUNT DURING THE REPAYMI!NT PP.R.IOD. ADVANCES DQBJNG DIE DRAW PIRIOD Tbere are ltypas oC Advances on my Account: • UneofCm!itAdwnees • Fixed Rato Advances Tho Bank must llonor my request for Line of Credit Aclveccs aod FjKecJ Rate Advances (collec:tlvely, ''Advances..) • Ions as I am Ill compliance with alltenns or thi.~ Agreeruent, including all modit1c:allons, addenda and amendmentsiO 11, and the Seourity lnalnlmel\t. As I liSe my Aceo1111t, my a\llilable oredit will be rny credit limit millu the sum of all unpaid AdvanC811. As I ~ th~ principii balance J owe on my Account, my available credit will be Rplenished. I will not request an Advance 1hat would lliiUse lhe balance in ruy. Account 10 eJCoeed my credit limit, or which would violate the terms oftfds Apeen1ent or any law. If J do CKceed my credit limit, lasree to immediately repay tho amount that e~eceeda my credit limit.

I understand that the Baok may refuse to allow any Advance if the Advanca does not comply with eveey requirement or thi.o: Agreement. The Bank may choose at its solo discretion to make an Advance Chat does not comply. The Bank may allow any Advances in any sequence convenient 10 the Bank. The Bank is authorized to make en Advance &om my Account when it receives a request pvoa by any person who hu signed this Asreement. If there are conflicting dcmaruls made by any ofua who signed lbi$ A.pcment, die Bank lias tho option to Rlbse to make any Advance lbal has not been reqlltMed by all of u togelber. The Bank will not be liable for any loss, expe~~R, or c:osl arising out of any telephone request, including any fi'auduleat or lllllllthorizcd telepftone te~tuest, when the Bank acts upon such matructloJIB believing tbem to be genuine. Section 50(t), Arfiele XVI or tile Texas Constitution Omits rhe maximum principal a1110unt oqtstandlog and debits and ad¥anetJ apbast tile Account aader ctrt..n tk&!UD!Stamlft. I anderstand that the Baok may rel\tse co aRow any Advantt If th• Asb'•nse dog not tSJI!PIY with §esdon 9ft), ArJislt XVI of the Texa' <:oll!tltp!lsn. LINE OF CUPIT AQVANCE§ Each Lfnet ofCredit AdV811Ce I roq,uest will be In the amount of$4,000.00 or greater.

LINE OF CUDf[ ADVMCJMETWJD§ Wbire my Account is not in default. closed, or siiSpcnded, I may obtain a Line of Credit Advance by: Req~atlng a Line of Credit Advance In person at any Bank bnmoh Req~~et~ti118 a Line ofcredit Ad~ by phone Tfansfc:nins fimcfs by uslns We& Fareo Online"" • In other wayx the Bank authorizes ftom time to time, and BS permitted by§ SO(t) Article XVI, of the 1 exas Coastitucion.

2115 Docamcllls Proossed 01..09·2007. 13:~;53 LINE Of WDrr AIWAJilCIS PERIQDlC 'INANC§ CHABCIS Finance clla'les begin to accme on Uno of C~it Advances immediately when fUnds an~ advanced. The periodic FINANCE CHARGE for a billiJig ~:ycle is the sum of the poriqdic FINANCE CHARGE for each day in dae bDiiDg cy.. l'o determine the periodic FINANCE CHARGE for a day in the blUing t;yclc, multiply the Daily Periodic Rite by tha daily balnlce for Une of Credit Mvances (including current lriDsaclions) each day. To dctennlne the daily balance, take the Line of Cn:clit Advanaes balance at abe beJillllina of each day (excluding any unpaid FJNA'NCE CHARGES or olhor c1u1rp1c provided for aDder this Apeement), add any new Uno of Cmlit Advab~:CJ~~, and subtract any paymeJIIs or oredilll that apply to the repayment of Line of Cm!it Advances. Tile J'e8Ult i& the daBy balaneo. The Daily Periodic Raro for Line or Cfedit Advances is equal to t/365 (1/366 durin& leap years) of an tndex plue a Marain. The Index is the hipat Prime Rale as published iJIIho Western Edicion of 'llle Wall SJretJI Jout7Ull ''Money Rates" table. ~e Marafn, the fnltfal Daily Periodic Rato, and tho initial ANNUAL PERCENTAGE RATE, are cacb disclosed below. Tbo Margla wiD lncrcaso if the Alllomatic Payment feature described mSeclfon 6 below is tennllllted for lillY msoJt. Tho ANNUAL PERCENTAGE-RATE dOe$ not include costs other than intOJeSI.

The Daily Periodic Rate 4Rd eomspond,ina ANNUAL PERCSNTAGE RATE on my Line of Credit Advances will be acUuatcd on the ftmt day of every billing cyofe, a sin& the lase Index Yatue publithecl darina the precedins billiDJ cycle. Therefbrc. the Daily Periodic: Rate for Lino of Credit Advances may cbanp (increase or decRase) • often aa once each billing cycle bwd on change~ in fltc Index. llllllfenlland that any Jmreuo may clluae me to make larger monthly pa)'Ments.

W!mME RATE CAP FOR Y~E or cu;mT APYANC£S DaUy Periodic Rate for Line ofCredit AdYIIt\teS wBiuever exceed 0.049315% (correspondblg ANNUAL PBRCENTAG8 RATE of J8.00%). Thia is lhe Llfotimo Rato Cap for Uno ofCredit Advances.

LIFETIME llA'rt; fLOOR FOR LINE OF CUPIT .ADVANCE$ The Daiay Periodic Rate for Line of Credit Advances wiU never fall below O.OJ1616% (conespondiq ANNUAL P.BRCENTAG£ RATEof 4.240%). This is the Llfi:timc: Rate Floor for Line ofCnldit Advances. MY INWAL ftAD !OR LINI OF QEDITADVANCf.S As diSClUued abo~. my Dally Periodic Rate is based on the: value of the lmfeJ~ plus a Maraln. Tile lolrial Index value thai appttea ao my Ai:cowu will be tlte value of the Index oa the day I open my Accouat. The JVUowlng disclosures ate based on Clio value ofthe Index In e«ect on 01..(19-2007. I UlldemaruJ that ifl open my Acoounc after this dace, my act~~allndex value, Dally Periodic Rate aud conapondlng ANNUAL PERCENTAGE RATE may be hialler or lower tllan the£~'" dlaclosed below. · My Margin for Une ofCmiit Advances Is equal to NEGAnVE FIVE HUNDRED TEN THOUSANO'lliS Of ONE PERCENTAGE POINT percentage points (-O.SJO%). As &IUIIlt, unleas the Lif'olime Race Cap for Line of CredltAdvanees or Lifetime Race Floor for Line of Credit Advances require. the Bant to apply a different rate to my Acoouot, my Initial Dally Periodic Rate 1&0.021205% (cozmpondiiiJ ANNUAL PERCENTAGE KATE of 7.740%).

JdNE OP CBJDIT ADVANCE$ MINIMyM MONTULY PAYMENT During the Draw Periocl, my Minimum Monthly Payment for Une ofCreclit Advances shall be equal to: Tbe twm ofall accmedand unpaid periodic FINANCE CHAROES on Line ofCredit Advances, plus credit iM\11111\Co premiums, Ifany.

£1XEQ MD ARV,ANCIS DURJNGTHE I)MW PERIOD I haw lhe oplion 111 convert outstanding 1111J1aid Line of Credit Actv.nces to Fixed Rate Advances during the Dra!' Period based on cmlic limit availability. The minimum Fl~ted Rate' Advance during tbf) Draw" Period .IS S 10,000.00. I may ~ueat up co 2 FiXed Rate Advallce& esch year. For~ of this nd~. tho. ftiSt )'ear" wtll beain on the <late of tbfs Apemellt. Subsequent~ will begin on each aunlvcreary date ofthiJ Agree111ent. I may .bave no more than 3 Fixed RatoAdva!K:C$ oiiiStanamg at any one lime. I must sctcot the repaymen' tenn for 3115 DocllmealS Processed 01-09·2007. 13:-14;53 lhct Fixed Rate Advance at tbe time J~uest the Fixed Rate AdviiiiCe. 1Dtel'flt·ODI9 Paymtat Option: If I seteotlhe lntatst-only pa~elll optloa fOI' a fixed Rate Advance during tha Draw P~od (see the Reclion below titled "fiXfiD RAT£ ADVANCF.S MINIMUM MQNTHLY PAYMENT PYIUNG T1B DRAW PEBIOJ"), tha repayment term must be at lea&l ono year and not more than the lesser ot J0 yean; or 1he remainihl tenn otthe Draw Period miRlls one monlh. At the etUI oflhe term, the balance will convert co a Line of Credit Advance. Full)' A1110rtizlna PaJntent Optfon: If I Hlcct the fUlly amortizing payment option for a Fixed Rate Advan~ durinJ the Draw Period (sec tbe secllon below lftled "EIIIiiR BAD ADVANCf.S MINJMPM MONIJU,X PAYMENT DURING THE DBAW RBJQJl"), tbct RPII)'mllll term must bt at leas& one year and not more tban the IC~Sfer of 10 years or the remaining term oftbe Draw Period minus one month. FIXED BATE ADVMJCE METHODS DUBJNGTIIE DBt\W PgiOD While my Acc:ountlll not In dcfllult,closed, or saspencled, I may obtain a Fixed Rate Advance by: •R.equutlna a Fixed Rate AdVIInoe In penon at any Bank branch. ·Requesting a Fixed Rate Advance by phone.

fiXED BAD A~I!S PERIQDIC fiNANCti CQARQIS DYBING THE PBAW PEBIOD fixed Rare AdVIRm will acc:ruo periodic FINANCE CHARGES beglnnl111 co the: day lhlt the Bank convens any Uae of Credit Advances to a Fixed Rate Advance. I will bo charged a periodic FINANCE CHARGE on all ouls1Mdina unpaid Fixed Rate Advances eacb day al a fixed Daily Periodic Rate. To determine lhe periodic fiNANCE CHARGE for a day In the bOling c~le, mullip!y thtl Dally Periodic Rare by the dally balance for the Filed Race Ad\IIJIIle (includlq current transactions) each day. To dctennl~ the dally balallce for die fixed Rete Advance. take the F'IXed Rate Advance balance at the bcginnina of each day (oxoludin& any llnJNiid FINANCE CIIARGEs·or other dllrges provided for undor Ibis Agreement), and :lllblriiOt any payments or credi1& that apply co the repaymeat of the Fixed Rate Advance. The ralllt i• tbeclaily balanca. The Dally Periodic Rate for Fixed Race Advanoes is C4ual to 1136S (11366 dlllina leap ytartl) or an Index plus a Marsin. The lndu Is the highest Prime Rate as published fo tbe Western Edition of The Wall Sttwl Journal ..MOM)' Rates" table. The Bank will use the valw or the lndox in efttc:t on the last bus IMP clay prec:edin& the day tbe Bank n:ceivee my request for a Fixed Rate Advuce. The Margba for Fixed Rate Advancte I& eight poroemase points (8.000%). The Bank may, In its sole dlscmion. apply a Jowor Meq:in. The GOJRSPI)nding ANNUAL PERCENTAGE RATE for Fixed Rate Advances will ucver be mote thaa the Ufetimo Rate Cap for Fixed Rate Advances shown below. The ANNUAL PERCENTAGE RATE does 110t include costs other than interest. •

The Mar&in for any oxi&ling Fixed Rare Advai1Ce$ will iucrease by onu quarter of one percentage poilll (0.25%) if tbe Automatic Payment feature ralmninaled, as described ill SecliOA 6, below. Therefore. tbe Daily Periodic Rate for Fixed Rate Advances may also increiiK 11 lease o~~ee during the Aocount based en an incroese in dto Margin wben the Automatic Paymeol fe~ture is tenninated. Any euah increase wfJI RSUit in an increase in the then outstandlna Fixed Rate Adv•nce Minimum Montllly Payments. If I selected the intmlst-only paymont optlcn f'or a Fixed Rate Advame, the Fixed Rate Advance Minimum Monthly Payment for that AdvaJU:o will equal Ole sum of all acc:nu:d and unpaid periodic FINANCE CHARO.ES on the remaining blllmce of the ~ed Rate Advance at the Increased COJmpandina ANNUAL PERCENTAGE RATE. If I selected thct fUlly amortizing payment opefon for a Fixed Rate Advance, tha Fixed Rate Advance Minimum MonthlY Payment for that Advance will be nset at an amount suffieientto repay the remainina balance of the applicable Fixed Rate Advance widlln its applicable term In $UbstantiaDy equal, fidly amoJtizing monthly payments at its increased corraspon41ng ANNUAL PERCENTAGE RATE. YEIJ'IME RATECAf FOR fiXED RATE ADVANCES PURINGTBij pRAW PIRJOD The Dally Periodic: Rite for Fixed Jt.te Advances wiU oot excad 0.049315% (corresponding ANNUAL PERCENTAGE RATE of 18.000%). This is the Lifetime Rate Cap for Fixed Rate Advances.

4115 DacummiS ~sad OI.Ct-2001. 13:44:53 II'JXEp RA1] ADVANCE AT ACCOUNT OP£NING I have requested anlnJdal fixed Rale Advance at Account oponlng in the amount ofS 103,441.00, and for a tenn of 120 mot'ltbs. My Dally Periodic Rate on tllis initial Fixed Rate Advance Is 0.0198% (<:One.qponding ANNUAL PERCENTAGE RATE of7.Z40'.4). lllave selected the fully am011lzing paymmt option. fiXED BAD APYNlQS MINIMUM MQNTHLX PAYMENT DYRINGTHEDMW PERIOJ! I may select one of lhe following minimum payment options whm I reqUCSJ a F"IXcd Rate Advance duriJig the Draw Period: lnterett.Oaly Payment Option: If I select lhls option, my Minimum Monlhly Payment for lbe Fixed Rate Advance during the Dtaw Period wUI be equal to the sum of all llCCJIIed and unpaid periodic FINANCE CHARGES on tho Fixed Rate Advance. · Fully Amortizing Payment Opt!Dn& If 1 solect Ibis option. my Minimum Monthly Payment for the Fixed Rete Advance will be equal co the amount of principal plus periodic FINANCE CHARGE suiJ'iciom to repay Che Fixed Rate AdvaiiGo within fiS apJJioabfe tcnn in substantially equal, ftllly amonlzing monthly payments at the applicable corresponding ANNUAL PERCENTAGE RATE. Thill usumea lhat all pa.y.monts Will be made on their due dltCt, wbich will be lhe same at tbe due dates for my Une of Credit Advances Minimum Monthly Payment described above. If my paymcn1s Ql'e not conslstenUy macto when due, lhe fixed Rate Advance: Minimum Monthly Payment may not fUlly repay the Fixed Ralet Advance over its term 1111d my final pa)'lllcml may be hJp.

Durin& the: Dtaw Period, my avallablocredit for new Line of Credit Advance& will be repklnished by tho amount or prineipal 1 repay on my Fixed Rate Advanoet.

~l{ TOTAL PAVMBNf Dl,lE Dt!RING THE DRAW PERIOD Will receive monthlY. bllllnJ statements from lhe Bank. J must pay at least the amount of the Total Payment Due by tile Date Due, u sllown on each montbfy billitla sllltemcnt. The "Total Payment Due" durint the Draw Period eoJUJisiS of my l.lne of Credit Advances Minimum Monthly Payment plus my Fi~~tod Rate Adllllnce Minimum Monthly Payment(&) togotbcr With all past due amount.'! and overlimll amounts and aU 01hc:r charaes clue. SECTION 5: MY ACCOUNTDVRING THE REPAYMENT P.ERIOD BJPAYMEN1 rHJ.Q» I understand tbat I may not receive new Advances after the Draw Period ends. At that lime. r wiU br.gin the Repayment Period, wblch wiU continue until tJ. Maturity Date de~cribed below, but in no event moftl Chan 30 years.

aEl"AfMENIQf EJNAL fiXED WE ADVANCE Al the end of the Draw Period, lhe ouiStanding unpaid Line of Credit .Adv1111ces balance will be eonverted into a Final Fixed Rate Advance. The Final Fixed Rare Aclvanco will have a renn of JS years if my total Final fixed Rate Advance balance is less than S20,00D, or 30 years if my FinaJ F"llled Rate Advance balance ia $20,000 or more.

The Final Fixed Rate Ad"anec Minimum Mondlly Payment will be the pater of S100 or an amo11n.t sufficient to repay the Fi111l Fixed Rate .Advance balanc" by tbe end of the scbeduted cenn in ~tantially equal, fii.RY amortizing monthly pa)IMellts of principal and periodic FINANCE CHARGE at the applacabtc corresponcbng ANNUAL PERCENTAOE RATE.. If my payments are not consistendy made wheo due. the Final Fixed Rate Advanco Minimum Monthly Payment may not fully rep~~y tile Final Fixed Rate Advanoe over Its ~ and my fin., paymClll fbr the Final Fixed Rate Advauoo may be lllsJ!er. The Bllllk will notify mo In advance of any obanges to my Tolal Paymmt Due as a result of !he Final Fixed Rato Aci91111Ce Minimum Monthly Payment. · PERIODIC F~giARGJON fiNAL fiXED RATEADYANC£ B,y,ANC£ Periodic FINANCE CHARGES on my Fimal fixed Rate Advance balance Will begin to accrue on lite first day or lhe Repayment Period. ^[1] will be charged a periodic FINANCE CHARGE based on the unpaid Final fixed Rate AdVIIICo baladce at tbc end of each day 11 a fixed Daily Periodic Rate.

The Daily Periodic Rate for lhe Final Fixed Rate Advance ls equal to ti36S (Jilfi6 durioaleap years) of an l'adex plus a Margin. Tho Index is lhe highest Primo Rate u publl&hed in the Wmem Edition or The Wall St~et Journal "Money RileS" table. 1bo Bank will use \he Index value publi.lfle4 on the lasl busiti0$S day duritis tile Draw Period. 1'he Margin for the final Fixed Rate Advance is ei&ht pen:entage points (8.000%). The Bank may, in its 10le discretion, apply a lower Mar&in. The corresponding ANNUAL PERCENTAGE RATE on my Final Fixed Rate Advance will never be m~ than the Lifetime Race Cap for my final fixed Rate Advance shoWD &elow. The ANNUAL PERCENTAOE RATE does not include costs otbtr than IIUerest. The Margin lbr 1116 Final Fixed Rate Advance will incre~~Se by one quarter or one percentage point (0.25%) if the Aucomalfc Payment feature is terminated, as deM!ibed in Section 6, below, duriiiJ tho Repayme~~l Period. Therefore, lhe D11ily Periodic Rate Cor the final Fixed Rate Advance may also increase at least o~ durins the Repa)'Jilent Period based on an iiiCIUSC in lhe Margin when the Automatic Payment feature fs temdnated. Any such fncrease will result in an increase fn the then outstanding Final Fixed Rate Advance Minimum Monthly Pa)'lnCIIt, which will bo reset at lito woater of$100 or the amount sufliaicnt to repay the rcmalnins balance of the Final Fi1C.ed Rate Advance witmn fts applicable tenn in substantially equa~ fully amqJtizing monthly paymenta at it& applicable coneapondlug ANNUAL PERCENTAGE RATE.

LlfUWE 8AD C«\f FOR. MY ITI~AL FIXED MATE ADVANCE The Dally Periodic Rate for my Final FIIICd Rate Advance will not exceed 0.049315% (COJre8$10Uding ANNUAL PERCENTAGE RATE of 18.00G%). This is the Lifetime Rate Cap fbr my Final Fixed Rate Advance.

MY TOTAL PA\'MENJ QUE DURINQ THE R§PAVMENT PERIOD 1 mu&t pay at least the an•ount of tho TOtal Payment Due by the Date Duo, as shoWII on each monthly biDing lltatcment.

The "Total Pa)'ftlenr Due" during the Repayment Period ir the Final Fixed Rate Advance Minimum Monthly Payment as described above. together with all past due amounts and overJimil amounts and all other cllarees clue. MAJtJBITY QATE Tbe Mahlrity Date on my Account shall be lhe maturity date of the f'inall'lxed Rate Advance, &ut in no ewnt more chan 30 years from the end oflho Draw Period. At !hat lime, any remaining balucc must bo paid in full.

SECTION 6: AUTOMATIC PAYMENT DISCOUNT I have cltosen to make Aucomatic Paytnents as specified in lhc Aulhorizaclon for Automatic Transfer. I Jlave receive4 11'4 illtereac rate: di«<ounr for makina this choice. I unllers1alld that tho ANNUAL PERCENTAGE RATE and dlo Margin clult apply to my Line ot Credit Advanoes, as desmbed in Section 4 above. reflect a discount you aave me for ellis Authorization fOr Automatic T.amrcr. Jftho Automatic Payments are tctml~ted for any J'C8$01\ at any time during 1M Draw Period by anyone, lite Marsin that applies to my Une of ~dit AdviiiCea, as set fbl1h in Soction 4 above, wiii.IJsBu by ono q~~a~Wr of one percentage point (0.2S%) emouve the day cbc Automatic Payments are terminated. If l!le Margin increases, the Dally Periodic Race and corresponding ANNUAL PERCENTAGE RATE applicable to my Line or Credit Advances, and my Line of Cn~dit Advances Minimum Monthly Paymcnt, may also incrcuc. My monthly billing Slalemcnt wm show me my new Daily Periodic Rate. comspondiDJ ANNUAL PERCENTAGE RATE and Line of Credit Aclvances Minimum Monthly Payment as aJllllicable.

SECTION 7: OTHER FINANCE CHAltCES In addition ro paying periodic FINANCE CHARGES, as described In Sections 4 and 5 above, J also agree to pay the followiA8 addili011al fees. eacb of which Is a FINANCE CHARGE:

6/JS Oocwnents Processed 01-ot-20111. 13:44:53

NIA

SECfiON 8: CLOSING COSTS

I asrcc to pay to the Bank the (ollowing closing COSIS at lhc opening of my Account: NfA

• This amount Is an eslimate. The actual recording/tiling fee is shown on lh& HUD Settl~ent Statement that is atcached to and incorporated into tllis AgreemcnL The folloWins closing costs are .lllNANCE CHARGES: N/A

SECTION 9: ADDMONAL FEES, COSTS AND CHARGES lo addidon co the FINANCE CHARGES and etoaing costa desoribed abo\'0. 1 agt'ee to pay lhe following non· reftlnlfablc feBS, c:osta and charaes, wbiob w1U be owccl once obarged to my AccounL LATE CHARGE§ Durin& the Draw Period, I will pay alate charge equal to the greater of five dollm ($5.00) or rrve perc;ent ($~) of the Une ofCrcdil Minimum Monthly Payment if my payment i$ mo~ than 10 days J)88t due. DurJns the Repayment Period, I win pay a late charge equal to lhe greater of five dollars ($5.00) or five percent (5%) of' the sum of all Fixed Rate Advam:e Mfnllllllm MoDthly Payme.~~tll If~ payment is more than 10 days past duo.

PRJPA\'MENT FEI There is no prepay.mmt fee on my Accoun1. OTQER WARGJiS . .. . To lbe extent allowed by law, I ape to pay tbu following fees ifll'e4Uest or aulhorize theae additional services: (a) ll!..fu: Tho Bank will charge a tax fee In die amount of$10 ifl request or aulltorize Other$ to request any document or letter to be b'all&milted by facsimile (fax) machin~J. (b) Regarslt Fee end Pllotpmpy fee: The Bak wiJI c:Jtargc a mearcbfpbotocopy ree In the amount ofSS per pbotoaopy if I n~q~~~~at or autllorizo oth~ to request that tJte Batik RSCIIII2h my Aocount or provide photocopieB of Aocollftt dooWnents tor any P1J1PO$e o1bcr than a billing error inquiry, (o) Reconycygu or S!!lsfastlpP rus Tlle Bank wiU charge reconveyance and satisfaction fees as 411owcd by applicable law. (d) Slop PfW!IJCDl Fu: The Bank will ch;nae a stop payment fco in the amount of$25 lfl m~uest or authorize otbels to rtqllOSltbat the Bank Slop payment on a draft 1 have used to requost a Uae ofCmlit Advm:o. (c) Betom Qmkfu: ·The Bank will obaEJc a return clteck fee In Ike amount of$25 if I m1b a payment with a check Chat Ia dishonond for any reason. (I) OVerlmlt ru: The Bllllk will charae an overfimit fc:e In the amount of$25 fbr each billia& oycle in which I hvc ox~ my credit limit or have nquested an Advance thai would l!ave caused me to exceed my credit limit. (&) Reapq t\dnnst CfJU' Fee &wmcltnt ru•ds): The Bllllk will e~~Jrae a ~etum advance check lee in the amount of S:l' for each ~~1: or draft ultd 10 fC4lUOSI a Line of Credit Advance C11at is retumed unpaid (dishonored) by lhe Bank due to lbr: Rquested Advance11ot mccllna all requhemeuta of this Asreement.

SECTION 10: COLLECTION COSTS AND ATTORNEY'S FEES If I am in default. I will pay lha Bank's collectio.a CO!Ilt, attomey's rccs ancl o1bet expenses of enforelng the Baok's ri&hts under this AgRement and the Security Ins11'11Dlent, uulcss probibltcd by applicable law.

1115 Dlrcumer'll$~01..()9.2007,13:44:S3 SECTION 11: METHOD OF PAYMENT The Bank will provfdc me with a monthly billiag statement and auromat~ly charge my qualified 4cposlt accolllll (UDder the terms of a separate Wlillell AuthorizatiOn for Alllomalic Tmnsfer) for the T01al Paya~em Due. If I owe 0\hcr charges (other than cmfillnsUIIIIICc: promiums and annual fees), I must pay lhem separately. If I owe past due amounts on my Account, the Bank wm 1101 collect thw; amo1111ts by using u Automatic Pa)'Dtent, and I JJlllllt pay litem sepuatoly.

SECTION 12: SCHEDVLEDPAYMENTDUEDATE My monthly payment due dale f'or my Total Payment Due Is the 15TH day oreach and every month d1arillt both the Draw and Repayment Periods.

SECTION 13: MY PROMISE TO PAY I promise to pay lo the order of the Banlc the total of all Advances which I rGCeive or which I authorize to bo mado from my AccoUD.t. t promise to pay the total of any FINANCE CHARGE, plus all amounts past due, overlimit amounts, and any late cbiiJICS, fees, other chatBes and olber obligations charatll to my Aceount under thiR Aareemenl or the Securiry lllstnlment. All payments made under this Apment wiD be made In u.s. Dollan~. I will not mall any casb payments to the Baftk, I may not usc .Adv.uu:e request checks 10 make paymenrs 011 my Acc:ount.

The Bank may. at its diaorctlon, withhold a ponlon or the IWallable credit on my A<:count up to tlte amount or any payment duo in order to assute that my check or olher paymentlnstnlment is 1t011ored. I will make payments at 1he Bank'$ adcltess fbr receiving a f!llymenl, as indicated on my payment coupon and billbag atalement, unless another payment melbod Is authorillCd by the Banlc. Each aon-electro.nic payment I maltc will be accomp~~~~led by the nmiltanco portion of my billing statement.

I unclersrand tbal pa)'llmlts I make by mail to the address indicated on my bOling statement or payment coupon will be ~mtited to my ,A(:90unt .as of the date ,!'CCejvcd (inC~Ildilll Saturday-. Stlllda)l$, and bolida,p) If the Baslk receives the payment prior to 5 p.m. local limo for the paymmttaddtut. J>aymoaus I make ftom a qualified account ("Automatic Payments'? pursuant to an Authorization for Automatic Transfer will bo c:rcdllecl to my Account on the date received (inctudfna Saturdays, Sundays. and holidays). Payments 111111b at o Bank b~h and rocei"Wd prior to established cur-offtimos wiD be credited to my Account oc the busint$11 day tho paynumt'is ~by the Bank. For puxposes of chis rulo, a business day includea any day other than Saturdays, Suaclays,lllllf Ballk observed holidays. Payments made at a Banlc branch rec:dved on a Saturday, Sunday, or Bank obilltVed holiday or after estabHshed cut-orr rimes will be credited as of lho next btL'Ilness day.

PaymcnfS I maJce online, by ATM, by telephone, or by any other means the Bank may make available to me an_d receiVed prior to atabllshed cut-oiT times will be credited to my ~nl on the bu6iness day the paymmt as received by th• Bank. For pvtposes of this rule, a bu$1ncas day includes any day other lban Sahlrdays, Sundays, and federal holidays. Payments made online. by ATM. by telepbOae, or by any other means Che Bank may lllaJce available to me received on a Saturday, Sunday, or fedend holiday or after eatablislted cut-ofT times Will be credited a11 of the na~t business day. I wilt not make payment or autbonze olbms to make payment for me by means of a slnaJo annspted payment. which includes paymenfS for this AIXO\IIll and any other ac:eount(s), uaJcss tho payment is made In comp1iance with the Bank's requlramCiliS for multiple account payments. The Bank may ~~ Jate payments, partial payments, post-dated Qhed<$, or any fQnn of payment c:oneafni~JS a restrictive endofl!Cment wlthout losing any of the Bank's righiS under Ibis ~eat. The Bank•• acceptance of checks or money orders labeled "payment In full," or words ro that effect. will not couslitute an accord and 8115 'Dacumenls~OI..09-lll07.13:44:53 satisfaction nor a walvor of any ri&bts lito Bank has to receive full payment. JrJ intend to condition a payment, pay 1M Account fa filii with less !han lito total amount owed, or give payment insb'IIC1lons, I will clearly set out such intenliOD, conditions enlf fmtructloas in a ~~~to leiter accompanylna my payment, and mail bolh to Wells Fargo Bank, N.A., P.O. Box 2993, Portland, OR 97208.

SECFION 14: TAX DEDUCTmiLITY J undcratand that I should COIISUit a cax advlsouegarding the d~uctibllityofintettst and obar&eS Ullder my Account.

SI:Cl'ION 1St REEVALUATION OF CREDIT QUALIFICATIONS AND CRI:DIT REPORTS My slpalure on Ibis ABR41ment authorizes dte Bank to obtain credit information about me. including credit bureau reports, at any tim11. SUch credit bun:au reports may b$ requested or used in connection with (a) renewal or extention of this Aareemont. (b) review or my Acaoont, {c) llklna any collection actlolt, or (d) any other legitimate pUI'JIOSU associated wllh my Account. ^[1] qn:e to aubmil cunent financfallnfonnation to the Bank upon U.e Bank'll request. Tba Bank may reexamine and reevaluate my credit qualifioatiOfiS at any time. The Bank may rcpon .lea experience with me and my Account 10 odlers. to lite extent allowed by Jaw.

SECJ'ION 16: PAYOFF BALANCE INFORMATION The Bank will toll me lha balanee required on any aiven day to pay oft' my Account in filii, If I so requesl If euck requcat ia made on my behalf by an *row holw. settlement agent or other drird 'Party on my bellalf during tho Draw Period, th8 Bank may Immediately freeze my Account. I ap that the rtantc•• meipt of such a tqt~ost &om an 010r0w holder, se~~tcmenc qent or ollter third party on my ()eJtalf will be consldtR:d to be a request by me to suspend cre4it privileges on my Account. While my Account is tro.n. I cannot receive 1I4W Advances and tbe Banlc will return unpaid uy Advance reqiiCIII chclclclltlill Bank receives and will refllae to ltoaor any odJer Advance: req~~est made on my Account. This payolr licoJ.o will be lifted and my Account reopened If lite mauest for payoD' balance infOrmation is withdrawn, lo which event the Bank may require written ccmfinnatlon from the escrow bolder, senfement agent or other lhlrd party on my behalf that the escrow or odJer settlement has been cancelled. . · . · . · · . SECTION 17: DEFAULT I will be In default if(a) 1 fail to meet 1M repayment 141M!$ of this A&fCelllOrlt for any 0\liSlandlng bala1lw, or (b) there is fi'aud or material misrepreselltation by me in eonnection with lhfs Agreement. or (c) any action or inaction hy me Adversely ~'' lhe Bank't security in dte Propeny, lncludlna WiU.oul limitation. trariSfer of the Property without the Bank's c01111ent, filllure to maintain required iMurance or pay requlml taxes, revocation or t«mination or any '-VOCable trusttltat i., an owner of the Property, or the death or aD)' peliOn who hu signed this Aammtent. or (d) Jam an.cxccutlveofficerofcbc Bank1111d federal law govt:mlng credit extended b)• a bank to its exec:utille officer, including withoul llmltadon Seelfon21S.S(d)(4) of federal Res~ Regulation 0 (12 CPR f 2JS.S(d)(4)), permits or requires Immediate payment of my entire Ac:cowll balance. If I am in defilul~ tlle Bank, aubjectco applicable law, may cJo 1111)1 or all of the ronowlna: (a) dole my Account immedlarcly. wllhoutnotice; (b) ~m liiiP•id any outstanding Advance request dlecks drawn on my AOCOilnt and refUse tD honor any other Advance request ltlliM on my Accollllt; and (c) require Immediate pa)lmenl of lhe entire balanco of my Aecount. and, If I flail to pay, exercise the Bank's rights under tho Security lnslmment. wbkh may n:sult in the loss or lho Property. l waive my c:omiDOD law rigbtl 10 n:clrivo llOike or the Bank•s intent to accelente tho sum& 1 owe under lhis Agreement and aotfce of aec:eleration. If I am in defa-ult. t~e melbod of clotennblina U.O Daily Periodic Ra1e tllld cosresponding ANNUAL PERCENTAGE RATE wm remam as doecribed Jn this Agreement. 11le Blmk amtl agree thatnoiWithstandina any other provision of tbis Agrecme~nt or the Security Tmtn»ment, tbe Bank will have dle right to tenninate or suspend my ACGount u, dto Cllltont permitted by applicable law.

SECfJON 18: CLOSURE OR SUSPENSION OF ACCOUNT, REDUCfiON OF CREDIT 9115 ~1'1oc1:ssec101~7.1l:44:Sl LIMIT; REINSTATEMENT OF CREDIT Q.OSIJBIOISUSPEN§ION Ot ACCOWf. REDUCTION Of CREPJT LIMIT By BORROWER Any one Bonower can close the Aceount by paying in ftd1 and satdilll a signed li:Uer 10 lhc BIJlk at abe address indicated on my monthly billing sratement ~uesllnalhat the Accoum be closed. Any one Borrower may terminate lhe Advanc:e feature, at any time durlna tile Draw Period, by seadhs& a sianed lcuer to the Bank at lhe addRss indicated on m,y monlhly billing statement fCC(UCSthtg lhc tennlnadon of die Advaac:e roature. To reactivate Ch& Ad1111nce fe.ttun on the Account durin& tile Draw Period, the Bank will require all Borrowers to sign a written request~nd malt to the address indicated 011 my mcmthly billing statement.

CL9SilBI OR SJJSPEN810N OFACCOWL ppUCTIQN OF CB£D1T LIMIT BY BANK . I wall receive a written notfee if tbe B~nk ausperuls 01 &ee1.es m)' Account or reduces my crecHt limit as reqwe4 under applicable law. The nolice will Include the reason(s) for such accfoa(a). 'Thereafter, irJ wish 10 reinslate my Account or increaflb my credit limit, I agree to send a Millen MqUest to the B81Jk at the ecldre.ss specified on m)' montht)' billina sta!Jiment, algnc4 by all of1lto Bonower&, along wllh satisfactory evidence to·the Bank lbat lhe reuon(s) for susp0118lon or RCI~tlon or my Account no longer exlsl(s). I abo agree 10 provide the Bank promptly with IIU' addlti()l)al information necessary to wppm m)' 1equeat. The Bank may suspend the use of my Account and ~emporarily problbit ftlturc Mvanoos during the Draw Period, or the Bank may !educe my credit limit, ror anyreascm ponnilled by applicable law, Including without Umltation, (a) If the annualized Dally Perioclio Rate cqueb or exceeds the Ufillime Rate Cap ll18ted herein, (b) there is any material cbanae in my fmaoefal circumllaace& thai tile Bank reasbnably believes will make me unablc to fulfill my repayment obll&atlons under this Asreement, (c) the value of the Property declines significantly below ils origiualiiPPI81sed 'Y81118, as ftletmined by lito Bank, (d) my .-nuro to comply with any material obligaUon unctcr tills Agreement or the SeQUdty JnsiTOment, (o) a fOiUlalOJY 81Hboriry has notified lhe Bank 1hat continued Advances would eonsritute an unsafe and unsound business practice, (f) I am in deflllalt under Seotfon 17 above. or (I) government action prevenls the Bank &om lmpoafna tho ANNUAL P~RCENTA.GE RATE provided for in Ibis A&reetnent or impairs the Bank's security interest ia tho Property, such that the value of the security interest is less tllan 120 pen\ent of the em!it limit.

Jn the event of a suspension of my Account. the Bank ill authorized to ·Oblain ncb Jftformation aR may be required by lite Bank, including without limitation, credit reports and appraisals of the Property. to evaluate any request by me to RJinstale the AccoUJit, To the extent flC'I'I'IIittcd by applicable law. I agree to pay to the Bank the cost of obtaining such addilionallnfonnatlon. If my Account is closed or suspancled for any R:ason. lhc Bank may Altum unpaid any outstanding Advance requeet checks drawn on my AOI:OIIllt and refUse to honor any other Acl\lllltCe requesl macle on my Account. I will continue to be r~onslble for full payment of the balance or my ACCOIIIlt as well as all other Account obliaations, ac:cordln& to lbe terms or tbls Aareemcnt.

SECTION 19: FURTHER ASSURANCES I a~ tllat J will take any sleps,lacludlng but notllmiled to, signing, filing or recording any cfocumcals. which are necessary or wllicll the Bank deems appropriate. co be sure tbat my obligations 10 the Bank under this Apccmenl become and continue to be secured by tbe Securily Jnstrumeqt.

SECTION Zfl: CHANGE IN RESIDENCE OR OWNERSHIP OF THE PROPERTY J aarce to notifY the Bank immediately if (a) the Property I$ my primary realdenae and I ~~~ to live In the Property as my primary Rlliidoncc, or (b) lherc Is any change in tho ownCI8bip of the Ptoperty; or (c) I have declared the Property my Texas Homostead u clefhled by Chapter 41 of ille Texas Propert)' Code, and lhe Proporty or any pare of the Property ceases to be used as Hontestead property or I declare other propertY I own to bo my Texas Homes1ead.. 1 aaroe that Ill)' Account shall he closed and that the enUre outstanding balance of my Account shall be due and payable immediately on anyaalc or otlter IIQR$fer of the Property, unliiSS prohibited by applicable law. rn this reprd, I undeetand dtat my A.tlCOunt i.~ acuml by a Security 1nsuument c:ontainins tbt: following or a sulJstanUally similar provision: 1011$ DlloumcniS Pmcxucd Ot.0!.\.2007. 13>44:53 If all or any pan of the Propeny or any Interest in the Property L~ sold or uansferred (or ifBonower Is not a llldural person and a benefiCial intereat In Bonower is sold or ln!Mferred) witlloutl.endcr"a prior wriUen con~en1, Lencfer may require Immediate paym~l In filii of all sums secured by this Security lll."lnlment. Howwer, this option shall not bo ex~ised by Lender If such exerc:ise is prohibited by Applicable Law. If Lender exorcises this option, Lender sball give Borrower notice or aecelenttion. The nolic:o shall provide a period of not Jess than 30 days from tbe date the notice Is given In acc:ordance wilh Section 13 within which Borrower mll$1 pay all sums .uml by this Security lnS\IIIIIIllnt lrBorrower faDs to pay these swns prior to the expiration or this period, Lender may invoke any ~medics permitted by this Security Instrument witb0111 filnher notice or demand on Borrower. SECTION 21: CHANGE IN TERMS To the extent allowed by law, I aaRC tbat the Bank may make cenain olumJCS to the temas of this Apeemont at speelfted times or vpon tho oc:cunem::e of S)leolfted events. Tha Bank may make in.,itpdftcant cbanaes, such as challgos ill tho address for payments, bllllna cycle dates, p&YmMI due dates, day of the month on which Index values an: dctonnincd, lndelt or intete$t rat~ rounding rules, and balance computation method (if the change produc~ an insisnillcant differenco in tile lntereat or FINANCE CHARGE I am required r.o pay). The Btmk may also make c:hanJO$ tllal will benefit me, such as addltl01181 opllons or a lempatary reduction in rates or fees. In aucordanoo with federal law. the Bank may also c:hiiRJO tho Index and Margin used to determine the ANNUAL PERCENTAGE RATE(S) that apr.ly to my Line of Credit Advances andfor Fixed Rate Advances if the original Index Ia no longer available. The Bank may make any of lhe chaoges discu.'llled above without my con.qont, unless applicable law provides otherwise. Tho Bank will give me any notice or clt!mae tbat is required by Jaw. I may also agree lo cbanges in wrilina.

So long atlhe Property SC(;urill(l this Asrcemenl is my Texas hometlead n defmed by Chapter 41 of the Texas Propeny Code, lhe Bank may not, in any ci~umslanco. unlraterally amend the terms or this AgJeement. SECTION 12: WAIVERS· · BOBltQWQ'S WAIVERS I waive my riahttl to wquire the Bank co do certain things. Those things are: (a) to demand payment or amounls due (known as "presentment"); (b) to Jive notice lhat amounts due have not been paid (known as "notice of dishonor'')> (c) to obtain an omciaJ cmnu:atlon of nonpayment (lmown as "protesl"). lANK'S NON•WAIV£R • The Bank may fall to make use or any of ils riJhiS under this Agreement or the Securi&y Jnstnamcnt or under appllcablo law on one or more oocaslom, or dc:Jay or partially exercise such rights, wlthaut waiving any of its riJ)ds or amending any of my obligations. Tho Bank may r.n to mab use or any of iL<~ righL~> or delay or partially exen:lso such righrs against one party, without waiving ally of its rights against any other party to this Asrecmet~~.

SECTION 23: GOVERNING LAW; SEVERABILITY All interest., fees and other amounta charged or accruing in connection with this Apeement wbiob are considered "interest" wilhin tho meanina ofS~tion 8S of tho National Bank Act (12 USC §BS; 12 CFR 7.4001(a)) sball be governed by and interpreted under South Dakola law. In all other teSpects, this Agreement and all ~lated document!!, as well as the righfS, remedies, and duties of the Bank and the Borrower(s). shall be governed and interpreted by federal law 'With respect to nalionel banks and, lo the extent not preempted by federal law, the laws of the state In which the Property is located, except that Texas Finance Code Chapter 346 (which re&111ates certain revolvin& credit accounts) does not apply to thi$ Ap:emenl. • If any provision of this Agreement or the Security Jnstm~nent is detennlned to be invalid or unenforc:eablc by a coun or competent jurisdiction, che Rj$t of this Agreement will mnllin in tUU fon:e and efreet and enforceable acconling to its tc:nn!i. All menmce~~ln this Agreemllnt to lhe singular shall include 1M plurallllld vice versa. 11115 DOCUIDCIIIS 1"ru!ICS$Cd 0t.Q9•2007 t 13:44:53 SECTION 14: LOST OR STOLEN ADVANCE REQUEST CHECKS; BILLING ERRORS LOST OR 8J'OLEN APXANC£ REOUIST CRECQ fWUER£ AVAJyBLI): RQJ.ING IRRQRS I Will immediately contact the Bank at tha phone number oo my monthly billing lllatement 111d confinn by leiter if any or my Advance request cheeks arc ever lost or stolen, if tberc arc lillY enors in my monthlY billing statement. or iff suspect any 'IIJI8Uihotized use of my Ac:eount. The Bank will not rctum to me my canteUed Advance~~ checks or other AdVIII!ce request Jnstnunonts after ~)'iftg tham. The Ban}( wlll make available photocopies of my Advance RlqUCSl chEcks and other Advallee request msuuments upon request. I will ewnille mY AceoUIII atatemeniS promptly ift order to ldeatll)r any Improper or UllaU1horlzed entries, In coaaideralloa ror t1te Bank's pa)'IIICIIt ofeach Advance request check, I lllf" that even thouah I will110t JCCeive the original Advance Rqucst cheeks, all time periods llllder tho UnifOrm Commercial Code (UCC) for examinlna my mOIIthly billina statement and ~Jting lmpropor entries, inoludlng tbe UCC's statutes of limltalfOD with respect co fbrged, unllUihOrizecf, or missing signatures or endorsements, will begin fi'om the time my Ac:c:ount statement is first sent or made available to me. IJNAUTHQ.RIZED TRAN$ACTjON$ I will notity the Bank if someone baa b'anaferred, or may tranarcr IIIOl\e)' liom my A.ceo'lml wilbout my pennlssfon, or If I suspect any &audulent activity on my Accolml. I can call the Wells Fargo Pllont: Bank at the telephone number on my monthly blllint statement, anytime. 24 hours a day, 7 days a week. or advise my local Bank branch omce. l may al5o 5el1d written notice to the Bank at tho addrees incllcated on my billing statement. BW!nt lUgh!!- Ketp Dl1 Notlq Fqr Future UH This notice contain• lmpoJtanllnt'onnation about my rights and the Bank's responRibililies under the 'Fair Cnldlt Billing Act.

Notify Tbe Bllpk In Case OfiJ'tm Or Ouutlont Abont My BID If t think my billing statement Is wrong. or if I need more illformation about a aran.•tion on my billing statement. J will &end a Iotter on a separate pqe co tho Dank, a$ soon as possible, at the acldr~ listed on my ·billing sratemmt. ·ne Bank must heat &om me nc. later tban 60 days ·after dte Balllc mn me the first billing statement on which the &II$JJec:ted error or problem appears. I can telephone the Bank, but doing liO will not preserve my rishts.

In my Jetter.l will proYide the Bank wilh tbo foDowina illfbrmation: • My namo. Ac:c:ouat llllnlber and cfaylimc phone number, and • Tho dollar amount ofthe &UI~ted error, and • A closcripllon or tltc error and OJtPianaclon, If possible. as ro why 1 believe thoro is an error. If I need mont information, I will describe the Item I am not sure about. If 1 have authOrized the Bank to pay my minimum monthly payment automaticaUy ftom my ohecldng acooulll at the Bank, I ean stop the paymont of any scheduled automatic payment if I believe a biDing error has oec&~rrcd. To atop chc payment, my letter must reaoh lho Blink at tcasr tfiiH businees da,ys before tho automatic payment ia scheduled lo occur. My lU!hta ADd The Bank's ft.tHIO!l!!!!iiWU After kdol Of fdY }Yrit&p Nallu • • The Bank must acknowledge my leiter within 30 day:~, uDleas the Bank ha$ coneoted tho error by then. W.ithm 90 days. lhe Bank must either COI!Ult tho error or explain why 1M Bank believes the bmlng statement was concct. After the Bank rec:oives my letter, the Bank CIDIIOC 11y to collecl any amouat I question, or report me as delinquent. Tho Bank Gan continue to biD me for tho amount I queetlon. includina financ:e chmgcs, and the Bank can apply anY Wlp&id amoun1 against my credit limit. I 4o not llave to pay IUIY qucstaoned QIUO\Ull while the Bank Is researching my Ac:c:ount, but J am still obligated to pay tho parts of my bill thai are not in question. ll/15 Doc:umenrs Pmc:essod 01.()9.2:007, 13:44:53 lt the Bank fmds that a mistake was made on my billing stalelllent, I will not have to pay any ftnanee charges related to lhe questioned amount. lflhe Bank didn't mako a mistake, I will have to pay finaMC charges. and 1 will have lo make up any missed payaJcn~s on lhe questlomd amount. In eilller case, the Bank will send me a $tatemtlllt of the amom~t I owe and the dalO chat payment is due.

If 1 filii to pay the amount that the Bank dotennines I owe, the Bank may report me as delinquent. However, if the Bank's explanation docs not satiJfy me and I write to the Bank within ten daya tellina tbe Bank that l still refuse to pay, the Bank muat ten anyone the Bank repons me to lhatl have a quesclon about my biD. And. the Bank must tell me the name or anyona the Bank APOI1S me to. When the matter has been souled between the Bank and me, •II• Bank mllll tell anyone the Bank repc11ts mo to that tile matter has been setllcd. If die Bank does not follow the above rules, the Bank c:annot collect the fltst $50 of the questioned amoum, even it my billina statement waa corrc:c:c. SECTION 25: NOTICES Unless appllaabla law requires a ditTercnt method, any notice that must be pven to me or to anyone el$e who sips,a.mranteea or endoi'SOfllhis Aareement may be glwn by 11111ilina it to my addres& as aet forth abo-ve in Ibis Ap:emont, or to a different address If I have properly notified the Balik of tbat different adns. Any notice that I may send to the Bank must be afven by maill.q it to the Bank 111 lhe address provided on my billing statement, unless the aype of notice ls more specifically addreued in this Asreoment alld a different address is provided herein. If I contact YOII by phone. I acknowledge that telephone calls between me and the Bank or any of the Bank's amliaces may be monitored and recorded by the Bank or the Bank•s affiliaccs to ensure that my inquiries aro bandied prompdy, COIIrtiiOUSiy and ac<:~~raiCiy. I aaree that the Bank may c:ontact me by telephono. I qree to accept c:aJis &om the Bank at any telephone number that I provide to tile Bank. I aare«1 to aoeopt wls fi'om the Bank or the Bank's c;leslgnated rllllrest:ntatives which bqin with a verbal statement or tabbed messllJO IdentifYing the call as a business oan tiom tbe Bank. I ackllowledge and understand that some of the telephono Galls between me and tho Bank may be monitored and recorded to onsure that abe Bank handle& these calls courteou.,ly and ac:curately.

SECTION 26: ADDENDA I agree to llt11 foJiowil\g attached addencla, rnodificalioM or an~elldmente: NIA '

SECTION 27; STATE DISCLOSURES N/A

THIS AGREEMENT, mE SECURITY INSTRUMENT AND THE CLOSING DOCUMENTS EXECUTED HEREWITH CONSTITlJ'I'E A WRITIEN LOAN AGREEMENT WHICH REPRESENTS THE FINAL AGREEMENT OF THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRJO:R., CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS Or THE PARTIES. THERE ARE NO 'UNWRITIEN ORAL AGREEMENTS BETWEENntE PARTIES RELAnNG TO THIS AGREEMENT.

SECTION 28: PERSONAL LIABILITY (Texaa BGmestead PropertyOaly) an I intend to comply with provitioos and conditions of the Equity Law in orcJer toROI!Ie tbis Aatetment with a valid lien upon the Property. ^[1] will exc\lllte any document nccess&IY ro comply wilh all provisions and conditions of the Equ.lty Law in older to securo this Asreement with a valid lien IIJIOD die Property. If, for any reason the Property descn"bed in the Security Instrument Is not homesteSd property. due lo mistake,. ~r or misrepresentation by me or anyone else alping this AgreemeiU, then lite parties intaul and •pe that thas l•ne of l31U Docu!IIUIS Proctssed 01.09-2007. 13:44:53 credit Is not an eqllity line or credir made under the Equity Law, the non-recourse provisions of lhe Equity law arc nor applicable:, and lbe: Security Instrument remain$ a wlid lien on the Property.

SECTION ·19: FORFEITlJRE OF PRINCIPAL AND INTEREST; CURE OF VIOLATION 11le Bank sball comply with any of it& obliptlons under sections SO(a)(6), SO(e)-(i), or !O(t) Anicle XVI, Texas ConslitudOD or olher provisions ofthis Aammcot and related loan documencs (colleclively. the "Obligations'1 within 60 days after the Bank receives 110tlce of tile failure to comply, ullless 1he Bank remedies Chat failllle as provided in Texas COnstitution Art. XVI, Section SO(a)(6)(Q)(x). AAy 1101iec of non-compliance wJih any portion of !he Obliptions must b~ In wrili1J8, mailed poatage PJePaid by first eh1sa mall to: Wells FOJSo Bank Bxet111tive omce MACP60.5).016 POBox4233 Portland, Oteaon 97208 or to a differeDt address If 1 am given notice pursuam to this Agreement of that different address. M a precondition to taking any action promised on tile fiilure of tile Bank to comply, I will cooperate in reasonable efforts to eft'ecluate any compliance.

NOTICE TO THE BORROWER DO NOT SIGN THIS AGREEMENT IF IT CONTAINS BLANK SPACES. ALL SPACES SHOULP BE COMPLETED BEFORE THIS AGREEMENT IS SIGNED. READ THIS AGREEMENT BEFORE SIGNINGIT, .

ACKNOWLEDGMENT

I have reeelved. read aad ntalaed a copy or lhlir w~lls Ftugo Hom• Et•ily Acco11nt Aareement $ad Ditclosure Staa.ment (tilt "Atmmtat"), tile Security Jnstr11111ent, the Aareement to Provide Insurance, and the HOD Settlement Statement provided to- me at the closinJ, all of wlllcb I agree to by ttanlna tbiJ Aareement. The HlJD Stttlemen& Shtement is fDtorporated fnto and made a part or tllis Agmment. I aclmowltcJ&e receipt or tlae Wells Fmp HtH111 Bqulty Aaeollllt Important Terms dlttlosllre end lbe bome equity broC!hQre 'Wiata I applied for this Aceouat. In addltloll, I hereby qree tltllt the term• of thlt Alfeement replace tlte ttrms of any prior oral or written aanemeaD betweea the Bank and me abo~at tbls AcCGunt. lncludllla. for tumple. any and all commitment letters and pre-approwl leiters bemeea the B~ank and me abo~Mt. _ ~ :B-::::OF-RO~w==E~R~-~..::;..:::.....---------..w~~~~~o~ <suo 0C- 1(-t:> DATESlGNED 'f. JANOS F'ARKAS (Set\) BORROWER DATE SIGNED

BORROWER DATE SIGNED

BORR.OWER DATE SIGNED I BORROWER !§SAil DATE SIGNED fSeall BORROWER DATE SIGNED

Uiall BORROWER DATE SIGNED

(~tall BORROWER DATE SIGNED .. tf After Recording Mail to: Wells Farg() Bank, N.A. Attn: Document Mgt. P.O.Box31557 MAC 86908-012 III~IIIIIJIIMIIII!IImfll~~llltiiiiiii~IIOOIII DT Billings, MT 59107-9900 () (0 "Applicable Law" means all control\ing applicable federal law and, to the extent not preempted by federal law, .

) UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: 1. Payment of Principal, Interest, Prepayment and Other Charges. Borrower shall pay when due the principal of, and interest on, the debt evidenced by the Debt Insl.nlment and any prepayment charges, late charges and other charges due under the Debt Instrument. Payments due under the Debt Instrument and this Security Instrument shall be made in U.S. currency. However, if any check or other instrument received by Lender as payment under the Debt Instrument or !.his Security Instrument is returned to Lender unpaid, Lender may require that any or all subsequent payments due under the Debt Instrument and this Security Instnuncnt be made in one or more of the following forms, as selected by Lender: (a) cash; (b) money order; (c) certified check, bank check, treasurer's check or cashier's check, provided any such check is drawn upon an institution whose deposits are insured by a federal agency, instrumentality, or entity; or (d) Electronic Funds Transfer. Payments are deemed received by Lender when received at the location designated in (or in accordance with) the Debt Instrument or at such other location as may be designated by Lender in accordance with the notice provisions in Section 13. Subject to Applicable Law, Lender may return any payment or partial payment if the payment or partial payments are insufficient to bring the Extension of Credit current. Lender may accept any payment or partial payment insufficient to bring the Extension of Credit current, without waiver of any rights hereunder or prejudice to its rights to refuse such payment or partial payments in the future. 2. Application of Payments or Proceeds. Unless other procedures are set forth in the Debt Instrument cr Applicable Law, Lender may apply payments in any order that Lender deems appropriate. Any application of payments, insurance proceeds, or Miscellaneous Proceeds to principal due under the Debt Instrument shall not extend or postpone the due date, or change the amount, of the Periodic Payments. ^[3]. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines, and impositions attributable to the Property which can attain priority over rhis Security Instrument, leasehold payments or ground rents on the Property, if any, and Community Association Dues, Fees, and Assessments, if any. Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower: (a) has disclosed such lien to Lender at application for the Extension of Credit or agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender, but only so long as Borrower is performing such agreement; (b) contests the lien in good faith by, or defends against enforcement of the lien in, legal proceedings which in Lender's opinion operate to prevent the enforcement of the lien while those proceedings are pending. but only until such proceedings are concluded; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument. If Lender detern~inM thai any part of the Property is subject to a lit:n that can attain priority over this Security Instrument and which was not disclosed on the application for the Extension of Credit that Borrower provided to Lender, Lender may give Borrower a notice identifying the lien. Within l 0 days of the date on which that notice is given, Borrower shall satisfY the lien or tnkc one or more of the actions satisfactory to Lender set forth above in this Section 3. Lender may require Borrower to pay a one-time charge for a real estate tax verification and/or reporting service used by Lender in connection with this Extension of Credit. ^[4]. Property Insuranc~. Borrower shall keep tho: improvements now existing or hereafter erected on the Property insured against loss by fire, hazards included within !he tenn "extended coverage," and any other hazards including, but not limited to, earthquakes and floods, for which Lender requires insurance. This insurance shall be maintained in the amounts (including deductible levels) and for the periods that Lender requires. What Lender requires pursuant to the preceding sentences can change during the tern~ of the Extension of Credit. The insurance carrier providing the insurance shall be chosen by Borrower subject to Lender's right to disapprove Borrower's choice, which right shall not be exercised unrc:asonably. Lender may require Borrower to pay, in connection with this Extension of Credit, either: {a) a one-time charge for flood zone detennination, certification and tracking services~ or (b) a one-time charge tor flood zone detennination and certification services and subsequent charges each time remappings or similar changes occur which reasonably might affect such determination or certification. Borrower shall also be responsible for the payment of any fees imposed by the Federal Emergency Management Agency in connection with the review of any flood zone detennination resuJring from an objection by Borrower. If Borrower fails to maintain any of the coverages described above, Lender may obtain insurance coverage, at Lender's option and Borrower's expense. Lender is under no obligation to purchase any particular type or amount of coverage. Therefore, such coverage shall cover Lender, but might or might not protect Borrower, Borrowt:r's equity in the Property, or the contents of the Property, against any risk, hazard or liability and might provide greater or lesser coverage than was previously in effect. Borrower acknowledges that the cost of the insurance coverage so obtained might significantly exceed the cost of insurance that Borrower could have obtained. Any amounts disbursed by Lender under this Section 4 shall become additional debt of Borrower secured by this Security TEXAS-OPEN-END SECURITY INSTRUMENT (page J of I 4 pag~s) HC#162v7 (2/3/05) 11111111111111111111111.1111 Documcnls Pr\Jce~ecl 01-M-2007. 13:44:51 Instrument. These amounts shall bear interest at the rate applicable to the Debt Instrument from time to time, from the date of disbursement and shall be payable, with such interest, upon notice from Lender to Harrower requesting pa;;.ment. All insurance policies required by Lender and renewals of such policies shall be subject lo Lender's right to disapprove such policies, shaU include a standard mortgage clause, and shall name Lender as mortgagee and/or as an additional loss payee and Borrower further agrees to generally assign rights to insurance proceeds to the holder of the Debt Instrument up to the amount of the outstanding loan balance_ Upon Lender's re!juest. Borrower shall promptly give to lender copies of all policies, renewal certificate.<~, receipts of paid premiums and renewal notices. If Borrower obtains any form of insurance coverage, not otherwise required by Lender, for damage to, or destruction of, the Property, such policy shall include a standard mongage clause and shall name Lender as mortgagee and/or as an additional loss payee and Borrower further agrees to generally assign rights to insurance proceeds to the holder of the Debt Instrument up to the amount of the outstanding loan balance. In the event of loss and subject to the rights of any lienholder with rights to insurance proceeds that are superior 10 Lender's rights, the following provision_s in this Section 4 shall apply_ Borrower shal1 give prompt notice to the insmance canier and Lender. Lender may make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing, any insurance proceeds, whether or noc the underlying insurance was required by Lender, shall be applied to restoration or repair of the Property, if the restoration or repair is economically feasible and Lender's se<:wily is not lessened. During such repair and restoration period, Lender shall have the right to hold such insurance proceeds until Lender has had an opportunity to inspect such Property ro ensure the work has been completed to Lender's satisfaction, provided that such inspection shall be undertaken promptly. Lender may disburse proceeds for the repairs and restoration in a single payment or in a series of progress payments as the work is completed. Unless an agreement is made in writing or Applicable Law requires interest to be paid on such insurance proceeds, Lender shall not be required to pay Borrower any interest or earnings on such proceeds. Fees for public adjusters, or other third parties, retained by Borrower shall not be paid out of the insurance proceeds and shall be the sole obligation of Borrower_ If the restoration or repair is not economically feasible or Lender's security would be lessened. the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or noc then due, with the excess, if any, paid to Borrower. Such insurance proceeds shall be applied in the order provided for in Section 2. If Borrower abandons the Propeny, Lender may file, negotiate and settle any available insurance claim anll related matters. If Borrower does not respond within 30 days to a notice from Lender that the insurance cattier has offered to settle a claim, then Lender may negotiate and settle the claim. The 30-day period will begin when the notice is given_ In either event, or if Lender acquires the Property under Section 21 or otherwise, Borrower hereby assigns to Lender (a) Borrower·s rights to any insurance proceeds in an amount not to exceed the amounts Wlpaid under the Debt lut;trument or this Security Instrument, and (b) any other of Borrower's rights (other than the right to any refund of unearned premiums pl!id by Borrower) under all insurance policies covering the Property, insofar as such rights are applicable to the coverage of the Property. Lender may usc the insurance proceeds either to repair or restore the Property or to pay amounts unpaid undet the Debt Instrument or this Security Instrument, whether or not then due, subject to the rights of any lienholder with rights to insurance proceeds that are superior to Lender's rights. ^[5]. Occupancy. Borrower now occupies and uses the Property as BorTOwer's Texas homestead and shall continue to occupy the Property as Borrower's Texas homestead for at least one year after the date of this Security Instrumr.:nt, unless Lender otherwise agrees in '1\-riting, which consent shall not be unreasonably withheld, or unless extenuating circumstances exist which are beyond Borrower's control_ 6. Prcscrvationt Maintenance and Protection of the Property; Inspections. Borrower shall not destroy, damage or impair the Property, allow the Property to deteriorate or commit waste on the Property. Whether or not Borrower is residing in the Property, Borrower shall maintain the Property in order to prevent the Property from deteriorating or decreasing in value due to its condition_ Unless it is detennined pursuant tu St:ction 4 thai. repair or restoration is not economically feasible, Borrower shall promptly repair the Property if damaged to avoid further deterioration or damage. If insurance or cond~mnation proceeds a1e paid in connection with damage to, or rhe taking of, the Property, Borrower shall he responsible for repairing or restoring the Property only if Lender has released proceeds for such putposes_ Lender may disburse proceeds for the repairs and restoration in a single payment or in a series of progress payments as the work is completed. If the insurance or condemnation proceeds are not sufficient to repair or restore the Property, Horrower is not relieved of Borrower's obligation tor the completion of such repair or restoration.

Lender or its agent may make reasonable entries upon and inspections of the Property. If it has reasonable cause, Lender may inspect the interior of the improvements on the Property. Lender shall give Borrower notice at the time of or prior to such an interior inspection specifying such reasonable cause. ^[1]. Borrower's Loan Application. Borrower's actions shall constitute acrual fraud under Section 50{a)(6)(c), Article XVI of the Texas Constitution and Borrower shall be in default and may be held personally liable for the debt evidenced by the Note and this Security Instrument if, during the Extension of Credit, Borrower or any persons or entities acting at the direction of Borrower or with Borrower's knowledge or consent gave materially false, misleading, or inaccurate information or statements to Lender (or failed to provide Lender with material information} in connection with the Extension of Credit or any other action or inaction that is detennined to be actual fraud. Material representations include. but are not limited to, representations concerning Borrower's occupancy of the Property as a Texas homestead, the representations and warranties contained in the Texas Home Equity Extension of Credit Agreement and Acknowledgement of Fair Market Value Affidavit as described in Section 27. 8. Protcctioa of Lender's Interest in the Property and Rights Under this Security Instrument. If (a) Borrower fails to perform the covenants and agreements contained in this Security Instrument or any obligation that is secured by a lien that is superior to this Security Instrument, (b) there is a legal proceeding that might significantly affect Lender's interest in the Property and/or rights under this Security Instrument (such as a proceeding in bankruptcy, probate, for condemnation or forfeiture, for enforcement of any lien which may attain priority over this Security Instrument or tu tmforoe laws or n:gulations), or (c) Borrower has abandoned the Property, then lender may do and pay for whatever is reasonable or appropriate to protect Lender's interest in the Property and rights under this Security Instrument, including protecting and/or assessing the value of the Property, and securing and/or repairing the Property. Lender's actions can include, but are not limited to: (a) paying any sum!i secured by a lien which ha<; priority over this Security lnsnument; (b) appearing in court; and (c) paying reasonable auomeys' fees to protect its interest in the Property and/or rights under this Security Instrument, including its secured position in a bankruptcy proceeding. Securing the Property includes, but is not limited to, entering the Property to make repairs, change locks, replace or board up doors and windows, drain water from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned on or off. Although Lender may take action under this Section 8, Lender does not have to do so and is not Wlder any duty or obligation to do so. It is agreed that Lender incurs no liability for not taking any or all actions authorized under this Section 8. Any amounts disbursed by Lender under this Section 8 shan become additional debt of Borrower secured by this Security Instrument. These amounts shall bear interest at the rate applicable to the Debt Instrument from time to time, from the date of disbursement and shall be payable, with such interest, upon notice from Lender to Borrower requesting payment. If this Security Instrument i!i on a leasehold, Borrower shall comply with all the provisions of the lease. If Borrower acquires fee title to the Property, the leasehold and the fee title shall not merge unless Lender agrees to the merger in writing. !). Assignment of Miscellaneous Proceeds; Forfeiture. All Miscellaneous Proceeds are hereby assigned to and shall be paid to Lender, !iubject to the rights of any lienholder with rights to MisceJlaneous Proceeds that are superior to Lender's rights. If the Property is damaged, such Miscellaneous Proceeds shall be applied to restoration or repair of the Property, if the restoration or repair is economically feasible and Lender's security is not lessened. During such repair and restoration period, Lender shall have the right to hold such Miscellaneous Proceeds until Lender has had an opportunity to inspect such Property to ensure tht: work has been completed to Lender's satisfaction, provided that such inspection shall be undertaken promptly. Lender may pay for the repairs and restoration in a single disbursement or in a series of progress payment<~ a'> the work is completed. Unless an agreement is made in writing or Applicable Law requires interest to be paid on such Miscellaneous Proceeds, Lender shall not be required to pay Borrower at1y interest or earnings on such MisceUaneous Proceeds. Subject to the rights of any lienholder with rights to Miscellaneous Proceeds that are superior to Lender's rights, if the restoration or repair is not economical1y feasible or Lender's security would be lessened, the Miscellaneous Proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with the excess, if any, paid to Borrower. Such Misccllaneou~ Proceeds shall be applied in the order provided for in Section 2. Subject to the rights of any lienholder with rights to Miscellaneous Proceeds that are superior to Lender's rights, in the event of a total taking, destmction, or loss in value of the Property, the Miscellaneous Proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, wi1h the excess, if any, paid to Borrower.

TEXAS-OPEN-END SECURITY INSTRUMENT (paft• 5 nf'/ 4 pages) HOII62v7 (2/3105) IIIIIIIIIRIJIIIIIIIIIIIIIIII Documen;s Processed 01-09-2007, 13:44:53 In the event of a partial taking, destruction. or loss in value of the Property ir. which the fair market value of the Property immediately before the partial taking, destruction, or loss in value is equal to or greater than the amount of the sums secured by this Security Instrument immediately before the panial taking, destruction, or toss in value, unless Borrower and Lender otherwise agree in writing, the swns securt:d by this Security Instrument shall be reduced by the amount of the Miscellaneous Proceeds multiplied by the following fraction: (a) the total amount of the sums secured immediately before the partial taking, destruction, or loss in value divided by (b) tbe fair market value of the Property immediately before the partial taking, destruction, or loss in value. Subject to the rights of any lienholder with rights to Miscellaneous Proceeds that are superior to Lender's rights, any balance shall be paid to Borrower. In the event of a partial taking, destruction, or loss in value of the Property in which the fair market value of the Property immediately before the partial taking, destruction, or loss in value is less than the amount of the sums secured immediately before the partial taking, destruction, or loss in value, unless Borrower and Lender otherwise agree in writing, the Miscellaneous Proceeds shall be applied to the sums secured by this Security Instrument whether or not the sum.'l are then due, subject to the rights of any lienholder with rights to Miscellaneous Proceeds that are superior ro Lender's rights. If the Property is abandoned by Borrower, or if, after notice by Lender to Borrower that the Opposing Party (as defined in the next sentence) offers to make an award to settle a claim for damages, Borrower fails to respond to Lender within 30 days after the date the notice is given, Lender is authorized to collect and apply the Miscellaneous Proceeds either to restoration or repair of the Property or to the sums secured by this Security Instrument, whether or not then due, subject to the rights of any lienholder with rights to Miscellaneous Proceeds that are superior to Lender's rights. "Opposing Party"' means the third party that owes Borrower Miscellaneous Proceeds or the party against whom Borrower has a right of action in regard to Miscellaneous Proceeds. Borrower shall be in default if any action or proceeding, whether civil or criminal, is begun that, in Lender's judgment, could result in forfeiture of the Property or other material impairment of Lender's interest in the Property or rights under this Security Instrument. Borrower can cure such a default by causing the action or proceeding to be dismissed with a ruling that, in Lender'!! judgment, precludes forfeiture ofthe Property or other material impainnent of Lender's interest in the Property or rights under this Security Imtrwnent. The proceeds of any award or claim for damages that are attributable to lhe impairment of Lender's interest in the Property are hereby assigned and shall be paid to Lender. All Miscellaneous Proceeds that are not applied to restoration or repair of the Property shall be applied in the order provided for in Section 2, subject to the right'! of any lienholder with rights to Miscellaneous Proceeds that are superior to Lender's rights. ^[10]. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time for payment or modification of amortization of the sums secured by this Security Instrument granted by Lender to Borrower or any Successor in Interest of Borrower shall not operate to release the liability of Borrower or any Successors in Interest of Borrower. Lender shaH not be required to conunence proceedings against any Successor in Interest of Borrower or to refhse to extend time for payment or otherwise modify amortization of the sums secured by this Security Instrument by reason of any demand made by the original Borrower or any Successors in Interest of Borro~r. Any forbearance by Lender in exercising any right or remedy including, without limitation, I .ender's acceptance of payments from third person~. entities or Successors in Interest of Borrower or in amounts less than the amount then due, shall not be a waiver of ~r preclude the exercise of any right or remedy. ^[11]. Joint and Several Liability; Co-trustors; Successors and Assigns Bound. llorrower covenants and agrees that Borrower's obligations and liability shall be joint and several, however, for any extension of credit subject to Tex. Canst. Art. XVI § 50(a)(6), no O\\'IIer of the Property or spouse of the owner of the Property will be held personally liable for the amount due under the Deht Instrument, unle~s the owner or the spouse of the owner obtained the extension of credit under the Debt Instrument by actual fraud. Any Borrower who signs this Security Instrument but does not execute the Debt Instrument (a "co-trustor''): (a} is signing this Security Instrument only to mortgage, grant and convey the co--trustor's interest in the Property under the terms of this Security Instrument; (b) is not personally ob1igated to pay the sums secured by this Security Instrument; and {c) agrees that Lender and nny other Borrower can agree to extend, modifY, forbear or make any accommodations with regard to the terms of this Security Instrument or the Debt Instrument without the co-trustor's consent. Borrower's obligations are not assumable. The covenants and agreements of this Security Instrument shall bind (except as provided in Section 17) and benefit the successors and assigns of Lender.

12. Loan Charges. Lender may charge Borrower fees for services perfonned in connection with Borrower's default, for the purpose of protecting Lender's interest in the Property and rights under this Security Instrument. including, but not limited to. auomeys· fees. property inspection and valuation fees. In regard to any other fees, the absence of express authority in this Security Instrument to charge a specific fee to Borrower shall not be construed as a prohibition. on the charging of such fee. Lender may not charge fees that arc expressly prohibited by this Security Instrument or by Applicable Law. If the Extension of Credit is subject to a law which sets maximum Joan charges, and that law is finally interpreted so that the interest or other loan charges collected or to be collected in connection with the Extension of Credit exceed the permitted limits. then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the pem1ilted limit; and (b) any sums already collected from Borrower which exceeded permitted limits will be refunded to Borrower. Lender may choose to make this refund by reducing the principal owed under the Debe Instrument or by making a direct payment to Borrower. lf a refund reduces principa1, the reduction will be treated as a partial prepayment without any prepayment charge (whether or not a prepayment charge is provided for under the Deht Instrument). Borrower's acceptance of any such refund made by direct payment to l:lormwer will constitute a waiver of any right of action Borrower might have arising out of such overcharge. 13. Noti£es. Unless otherwise described in the Debt Instrument or in another agreement between Borrower and Lender, the following provisions regar!ling notices shall apply. All notices given by Borrower or Lender in connection with this Security Instrument must be in writing. Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means. Notice to any one Borrower shall constitute notice to all BorroweiS unless Applicable Law expressly requires otherwise. The notice address shall be the PropeJ1y Address unless Borrower has designated a substitute notice address by notice to Lender. Borrower shall promptly notify Lender of Borrower's change of address. If ~nder ~pecifies a procedure for reporting Borrower's change of address, then Borrower shall only report a change of address through that specified procedure. There may be only one designated notice address for Borrower under the Extension of Credit at any one time. Any notice to Lender shall be given by delivering it or by mailing it by first class mail to Lender's address stated herein un1ess Lender has designated another address by notice to Borrower. Any notice in connection with this Security In.-.trument shall not be deemed to have been given to Lender lllltil actuaUy received by Lender. If any notice required by this Security Instrument is also required under Applicable Law, the Applicable Law requirement will satisfy the corresponding requirement wtder this Security Instrument. ^[14]. Governing Law; Severability; Rules of Construction. This Security Instrument shall be governed by federal law and, to the extent not preempted by federal law, the law of the jurisdiction in which the Property is located. Ali rights and obligations contained in this Security Instrument are subject to any requirements and limitations of Applicable Law. Applicable Law might ex.plicitly or implicitly allow th~: parti~::s to agree by contract or it might be silent, but such silence shall not be construed as a prohibition against agreement by contract. In the event that any provision or clause of this Security Instrument or the Debt Instrument conflicts with Applicable Law, such conflict shall not affect other provisions of this Security Instrument or the Debt Instrument which can be given effect without the cont1icting provision_ As used in this Security Instrument: (a) words of the masculine gender shall mean and include corresponding neutt:r words or words of the feminine gender; (b) words in the singular shall mean and include the plural and vice versa; (c) the word "may" gives sole discretion without any obligation to take any a~tion; and (d) headings that appear at the beginning of the sections of this Security Instrument are inserted for the convenience of the reader only, shall not be deemed to be a part of this Security Instrument. and shall not limit, extend, or delineate the scope or provisions of this Security Instrument. 15. Borrower's Copy. Borro~ shall be given one copy of the Debt Instrument and of this Security Instrument. Hi. Transfer of the Property or a Bencficiallntere!lt in Borrower. As used in this Section 16, ..Interest in the Property" means any legal or beneficial interest in the Property, including, but not limited to. those beneficial interests transferred in a bond for deed, contract for deed, installment sales contract or escrow agreement, the intent of which is the transfer of title by Borrower at a future date to a purchaser. If all or any part of the Property or any Interest in the Property is sold or transferred (or if Borrower is not a natura! person and a beneficial interest in Borrower is sold or transferred) without Lender's prior written consent. Lender may require immediate payment in full of all swns secured by this Security Instrument However, this option shall not be exercised by Lender if such exercise is prohibited by Applicable Law.

Tt.:XAS-OPF-1\-END Si:CURITY lNSTRUMENT (page 7 af'! 4 P"~es) IIC:i1162v7 (2/3105) 1111111111111111111111111111 Documc111s Pmcessed 01-()'l·2007. 13.4453 If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is given in accordance with Section I 3 within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiracion of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. 17. Sale of Debt Instrument; Change of Loan Servicer; Notice of Grievance. The Debt Instrument or a partial interest in the Debt Instrument {together with this Security Instrument) can be sold one or mme times without prior notice to Borrower. A sale might result in a change in the entity (known as the "Loan Servicer") that collects Periodic Payments due under the Debt Instrument and this Security Instrument and performs other mortgage loan servicing obligationJ; under the Debt Instrument, this Se~:urity Instroment, and Applicable Law. There also might be one or more changes of the Loan Servicer unrelated to a sale of the Debt Instrument. If there is a change of the Loan Servicer, Borrower will be given written notice of the change as required by Applicable Law. If the Debt Instrument is sold and thereafter the Extension of Credit is serviced by a Loan Servicer other than the purchaser of the Debt Instrument, the mortgage loan servicing obligations to Borrower will remain with the Loan Servicer or be transferred to a successor Loan Servicer and are not assumed by the purchaser of the Debt Instrument unless otherwise provided by the purchaser of the Debt Instrument. Nt:ither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from the other party's actions pursuant to this Security Instrument or that. alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 13) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action. If Applicable Law provides a time period that must elapse before certain action can be taken, that time period will be deemed to be reasonable for purposes of this paragraph. The notice of acceleration and opportunity to cure given to Borrower pursuant to Section 21 and the notice of acceleration given to Borrower pursuant to Section 16 shall be deemed to satisfy the notice and opportunity to take corrective action provisions of this Section 17. If Borrower and Lender have entered into an agreement to arbitrate disputes, the provisions of any such arbitration agreement shall supersede any provision in this Section 17 that would conflict with the arbitration agreement. 18. Hazardous Substances. As used in this Section 18: (a) "Hazardous Substances" are those substances defined as toxic or hazardous substances, pollutants, or wastes by Environmental Law and the following subst11nces: gasoline, kerosene, other flanunable or toxic petroleum products, toxic pesticides and hel'bicides, volatile solvents, materials containing asbestos or formaldehyde, mold, and radioactive materials; (h) ..Environmental Law" means federal laws and laws of the jurisdiction where the Property is located that relate to health, safety or environmental protection; (c) "Environmental Cleanup" includes any response action, remedial action, or removal action, as defmed in Envkoruncntal Law; and (d) an ••Environmental Condition" means a condition that can cause, contJ-ibute to, or otherwise trigger an Environmental Cleanup. Borrower shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous Substances, or threaten to release any Hazardous Substances, on or in the Property_ Borrower shaU not do, nor allow anyone else to do, anything affecting the Property (a) that is in violation of any Environmental Law, (b) which create:. an Enviromnental Condition, or (c) whicb, due to the presence, use, or release of a Hazardous Substance, creates a condition that adversely affects the value of the Property. The preceding two sentences shall not apply to the presence, use, or storage on the Property of small quantities of Hazardous Substances that are generally recognized to be approprjate to normal residential uses and to maintenance of the Property (including, but not limited to, hazardous substances in consumer products}. Borrower shall promptly give Lender written notice of(a) any investiga!ion, claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge, (b) any Envirorunentat Condition, including but not limited to, any spilling, leaking, discharge, release or threat of release of any Hazardous Substance, and (c) any condition caused by the presence. use or release of a Hazardous Substance which adversely affects the value of the Property. If Borrower learns, or is notified by any governmental or regulatory authority, or any private pany. that any removal or other remediarion of any Hazardous Substance affecting the Property is necessary, Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law. Nothing herein shall create any ubligation on Lender for an Environmental Cleanup.

TEX:A.S-OPEN-ENil SECURITY INSTRUMENT (page !I of 14 P"lt~~J HC# 162v7 (2/3/0j) 11111111111111111111111111111 Dotumenls pl'(,cc:ssed 01-09-2007, 13:44..53 19. Condominiums; Planned Unit Developments. Solely 10 the extent permitted by§ 50(a)(6)(H), Anicle XVI of the Texas Constitulion, the Property shall include the types of properLy described in this Section 19. If the Property is a unit in a condominium project ("Condominium Project"} or is part of a planned unit development {"PUD"), Borrower agrees to the following: A. Obligations. Borrower shall perfonn all of Borrower's obligation.<~ under the Constituent Documents. The "Constituent Documents" are the: (i) Declaration or any other document which creates the Condominium Project or Pu"D and any condominiwn association, homeowners association or equivalent entity ("Community Association"); (ii} any by-laws or other rules or regulations of the Community Association; and (iii) other equivalent documents. Borrower shall promptly pay, when due, all Community Association Dues, Fees, and Assessments. B. Property. For units in a Condominium Project, the Property includes the unit in, together 'With an undivided interest in the common elements of, the Condominium Project, and Borrower's interest in the Community Association and the uses, proceeds and benefil~ ofRorrower's interest. For PUDs, the Property includes, but is not limited to, a parcel of land improved with a dwelling, together with other such parcels and certain common areas and facilities, as described in the Constituent Documents, and Borrower's interest in the Community Association and the uses, benefits and proceeds of Borrower's interest. C. Property Insurance. So long as the Community Association maintains, with a generally accepted insurance carrier, a "master" or "blanket" policy insuring the Property wltich is satisfactory to Lender and which provides insurance coverage in the amounts (including deductible levels), for the periods, and against loss by fire, hazards included within the tenu '\:xlended coverage," and any other hazards, including, but nor Hmited to, earthquakes and floods, for which Lender requires insurance, then Borrower's obligation under Section 4 to maintain property insurance coverage on the Property is deemed satisfied to the extent that the required coverage is provided by the Community Association policy. Borrower shall give Lender prompt notice of any lapse in required property insurance coverage provided by the master or blanket policy. In the event of a distribution of property insurance proceeds in lieu of restoration or repair following a loss to the Property, whether to the unit or to common elements of the Condominium Project or to common areas and facilities of the PUD. any proceeds payable to Borrower are hereby assigned and shall be paid to Lender for application to the sums secured by chis Security Instrument, whether or not then due, with the excess, if any, paid to Borrower, subject to tht: rights of any lienholder with rights to insurance proceeds that are superior to Lender's rights. D. Public Liability Insurance. Borrower shall take such actions as may be reasonable to insure that the Community Association maintains a public liability insurance policy acceptable in form, amount, and extent of coverage to Lender. E. Condemnation. The proceeds of any award or claim for damages, direct or consequential, payable to Borrower in connection with any condemnation or other raking of all or any part of the Property, whether oftbe unit or of the common elements of the Condominium Project or the common areas and facilities of the PUD, or for any conveyance in lieu of condemnation, are hereby assigned and shall be paid to Lender, subject to the rights of any lienholder with rights to such proceeds that are superior to Lender's rights. Su(;h proceeds shall be applied by Lender to lht:: sums secured by the Security Instmment as provided in Section 9. F. Lender's Prior Consent. Borrower shall not, except after notice to Lender and with Lender's prior written consent, either partition or subdivide the Property or consent to: (i) the abandonment or termination of the Condominium Project or PUD, except for abandonment or termination required by law in the case of substantial destruction hy fire or other casualty or in the case of a taking by condemnation or eminent domain; (ii) any amendment to any provision of the Constituent Documents if the provision is for the express benefit of Lender; (iii) termination of professional management and assumption of self-management of the Community Association; or (iv) any action which would have the effect of rendering the public liability insurance coverage maintained by the Community Association unacceptable to Lender. G. Remedies. If Borrower does not pay Community Associa!ion Dues, Fees, and Assessments when due, then Lender may pay them. Any amounts disbursed by Lender under this paragraph G shall become additional debt of Borrower secured by this Security Instrument. Unless Borrower and Lender agree to other tenns of payment, these amounts shall bear interest al the rate applicable to the Debt Instrument from time to time, from the date of disbursement and shall be payable, with such interest, upon notice from Lender to Borrower requesting payment. 20. Acceleration; Remedies. Bon-ower will be in default if (I} any payment required by the Debt Instrument or this Security Instrument is not made when it is due; (2) Lender discovers that Borrower or any co-applicant has committed fraud or made a material misrepresentation in connedion with the Extension of Credit; (3) Borrower takes any action or fails to take any action that adversely affects Lender's rights under this Security Instrument, any of Lender's other security for the Debt Instrument, or any right Lender has in TEXAS-OPEN-END SECURITY INSTRUMENT (po.g.- 'I o/14 pagesJ HC#J 62v7 (2/3/05) 11111111111111111111111111111 Documents Processed Ol-O'J-2007, 13:44;53 the Property; or (4) Borrower is an exe.:utive officer of Lender and federal law permits or requires immediate payment ofthe Loan. If a default occurs (other than under Section 16 or under subscdion (4) of this Section 21, unless Applicable Law provides otherwise), Lender wiJI give Borrower notice specifying: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice will result in acceleration of the sums secured by this Security Instrument and sale or the Property. The notice shall further inform Borrower of the right to bring a court action to assert the non- existellee of a default or any other defense of Borrower to acceleration and sale. If the default is not cured on or before the date specified in tbe notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and any other remedies permitted by Applinble Law. Insofar as allowed by Section 50(a)(6h Article XVI of the Texas Constitution, Lender shall be entitled to collect all expenKs incurred in pursuing the remedies provided in this Section 21. including, but not limited to, ~ourt costs, reasonable attorneys• fees and costs of title evidence. Tbe lien evidenced by this Security Instrument may be foreclosed upon only by a court order. Lender may, at its option, follow any rules of civil proeedure promulgated by the Texas Supreme Court for expedited foreclosure proceedings related to the foredusure of liens under Sediun 50(a)(6), Article XVI of the Tnas Constitution ("Rules"). as amended from lime to time, which are hereby incorporated by reference. The power of sale granted herein shall be exercised pursuant to such Rules, and Borrower ••nderstands that such power of sale is not a confession of judgment or a power of attorney to confess judgment or to appear for Borrower in a judicial proceeding. 21. Power of Sale. It is the elepress intention of lender and Borrower that Lender shaU have a fully enforceable lien on the Property. It is also the express intention of lender and Borrower that Lender's default remedies shall include the most expeditious means of foreclosure available by law. Accordingly, Lender and Trustee shall have all the powers provided herein except insofar as may be limited by tne Texas Supreme Court. To the extent the Rules do not specifY a procedure for the exercise of a power of sale, the following provisions of this Section 21 shall apply, if Lender invokes the power of sale. Lender or Trustee shall give notice of the time, place and terms of sale by posting and filing the notice at least 21 days prior to sale as provided by Applicable Law. Lender shall mail a copy of the notice of sale to Borrower in the manner prescribed by Applicable Law. Sal..: shall be made at public venue. The sale must begin at the time stated in the notice of sale or not later than three hours after that time and between the hours of I 0 a.m. and 4 p.m. on the first Tuesday of the month. Borrower authori<:es Trustee to sell the Property to the highest bidder for cash in one or more parcels and in any order Trustee detennines. Lender or its designee may purchase the Property at any sale. In the event of any conflict between such procedure and the Rules, the Rules shall prevail, and this provision shall automatically be reformed to the extent necessary to comply. Trustee shall deliver to the purchaser who acquires title to the Property pursuant to the foreclosure of the lien a Trustee's deed conveying indefeasible title to the Property with covenants of general warranty &om Borrower. Borrower covenants and agrees to defend generally the purchaser's title to the Property against all claims and demand:s. The recitals in the Tl11Stee's deed shall be prima facie evidence of the truth of the statements made therein. Trostee shall apply the proceeds of the sale in the following order; (a) to all expenses of the sale, including, but not limited to, court costs and reasonable Trustee"s and attorneys' fees; (b) to aU sums seemed by this Security Instrument; and {c) any e"-cess to the person or persons legally entitled to it. If the Property is sold pursuant to this Section 21, Borrower or any person holding possession of the Property through Borrower shall immediately surrender possession of the Property to the purchaser at that sale. If possession is not surrendered, Borrower or such person shall be a tenant at sufferance and may be removed by writ of possession or other court proceeding. 22. Release. Within a reasonable time after tennina1ion and fuU payment of the Extension of Credit, Lender shall cancel and return the Debt Instrument to the oWIJer of the Property and give the owner, in recordable fonn, a release of the lien securing the Extension of Credit or a copy of an endorsement of the Debt Instrument and assignment of the lien to a lender thar is refinancing the Extension of Credit Owner shall pay only recordation costs. OWNER'S ACCEPTANCE OF SUCH RELEASE, OR ENDORSEMENT AND ASSIGNMENT, SHALL EXTINGUISH ALL OF LENDER'S OBLIGATIONS UNDER SECTION 50(a)(6), ARTICLE XVI OF THE TEXAS CONSTITUTION. 23. Non-Recourse Liability. Lender sball.be subrogated to any and all rights, superior title, liens aud equities owned or claimed by any owner or holder of any liens and debts outstanding immediately prior to execution TEXAS-OPEN-END SECURITY INSTRUMENT Hnll62v7 (2/3/0S) 11111111111111111111111111111 Dacumems Processed 0 l-09-200./, i 3:44:53 hereof, regardless of whetb.er said liens or debts are acquired by Lender by assignment or are released by the holder thereof upon payment Borrower understands that Section 50(a)(6)(C), Article XVI of the Texas Constitution provides that the Debt Instrument is given without personal liability against each owner of the Property and against the spouse of each owner unless the owner or the spouse of lhe owner obtained this Extension of Credit by actual fraud. This means that, absent such actual fraud, Lender can enforee its rights under this Security Instrument solely against the Property ,_;·2:. ... _XI.,........,~ and not personally against the ov.ner of the Property or the spouse of an owner. If this Extension of Credit is obtained by such actual fraud, then, subject to Section I 0, Borrower will be ·- ·t ~~ ~ _J_i-''l-S-(F_-~AR-~KAS-~-~--~--=~~-.---(Seal) AND - Borrower

Printed Name:. __ ':C....::...::c~~~Y.~a'"'.:::..\...-=:,__--'!.~_;C(~v~·..;.;k=.~~~­ [Please Complele] Brice. Vander Linden & Wernick, P.C Aitomeys 11nd CtMJnseJon Brice. Vander Linden & Wernick, P.C. Attorneys and Counselors 9441 LBJ Freeway, Suite 250 Dallas, Texas 75243 Office (972) 643-6600 May24,20II

LEGAL PRECEDENT IS NOT CLEAR AS TO WHETHER THE SENDING OF THIS LETTER MAKES US A DEBT COLLECTOR. TO THE EXTENT IT DOES, WE ARE PLEASED TO ADVISE YOU THAT TmS IS AN ATTEMPT TO COLLECT A DEBT, AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. HOWEVER, IF YOU ARE IN BANKRUPTCY OR HAVE BEEN DISCHARGED IN BANKRUPTCY, THIS LETTER IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED AS AN ATTEMPT TO COLLECT A DEBT OR AS AN ACT TO COLLECT, ASSESS, OR RECOVER ALL OR ANY PORTION OF THE DEBT FROM YOU PERSONALLY.

JANOS FARKAS 9600 ESCARPMENT BLVD STE 745-4 AUSTIN, TX 78749-I982

Re: 63I5 FARMDALE LN, AUSTIN, TX 78749 Loan No. 09996I706I Our File No. 9508-0790 Our Case No. VS-09996I7061-FC

DEFAULT CURE INQUIRY RESPONSE

In response to your recent inquiry, we are pleased to provide the attached default cure information from your lender. We encourage you to read it carefully. The following brief summary is provided as an aid but not an alternative to your reading of the attached.

Default Cure Amount: $19,604.23 Good Through Date: 06/20/20 I I Receipt Deadline: 10:00 A.M. (Central) on II/OI/20II, or the good through date above, whichever is earlier. Certified Funds Payable To: Wells Fargo Home Equity Deliver Payment To: A TrN: FRCL Inquiry Unit Brice, Vander Linden & Wernick, P.C. 9441 LBJ Freeway. Suite 250 Dallas, Texas 75243

Foreclosure processing will continue and will not be stopped unless the default cure amount is received in our office before the receipt deadline. If the default cure amount is not received by the receipt deadline and the good through date expires before the scheduled sale date, you must submit a request for an updated default cure amount.

The default cure amount reported in the attached may not include amounts incurred or accrued but not currently appearing in your lender's records. Your timely tendering of the default cure amount will stop the current foreclosure processing; however, you will have to arrange for the timely payment of any additional amounts incurred or accrued or your loan may be returned to foreclosure processing.

The foreclosure fees and costs reported in the attached may include both fees and costs already incurred and fees and costs projected to be incurred on/or before the good through date. Upon receipt of your timely payment, we will determine the actual fees and costs due to us at that time, invoice that amount to our client, and report the difference, if any, to your lender for further handling.

Should you have any questions concerning the attached information, please do not hesitate to contact us at 972/643-6600.

Very truly yours, Brice, Vander Linden & Wernick, P.C.

File: 9508-0790

Brice, Vander Linden & Wernick, P.C. Attorneys and Counselors 9441 LBJ Freeway, Suite 250 Dallas, Texas 75243 Office (972) 643-6600 May 24,2011

LEGAL PRECEDENT IS NOT CLEAR AS TO WHETHER THE SENDING OF THIS LETTER MAKES US A DEBT COLLECTOR. TO THE EXTENT IT DOES9 WE ARE PLEASED TO ADVISE YOU THAT THIS IS AN ATTEMPT TO COLLECT A DEBT9 AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. HOWEVE~ IF YOU ARE IN BANKRUPTCY OR HAVE BEEN DISCHARGED IN BANKRUPTCY9 THIS LETTER IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED AS AN ATTEMPT TO COLLECT A DEBT OR AS AN ACT TO COLLECT9 ASSESS 9 OR RECOVER ALL OR ANY PORTION OF THE DEBT FROM YOU PERSONALLY.

JANOS FARKAS 9600 ESCARPMENT BLVD STE 745-4 AUSTIN, TX 78749-1982

Re: 6315 FARMDALE LN, AUSTIN, TX 78749 Loan No.: 0999617061 Our File No.: 9508-0790 Our Case No.: VS-0999617061-FC

LOAN PAYOFF INQUIRY RESPONSE

In response to your recent inquiry, we are pleased to provide the attached payoff information from your lender. We encourage you to read it carefully. The following brief summary is provided as an aid but not an alternative to your reading of the attached.

Payoff Amount: $123,127.31 Good Through Date: 06/20/2011 Receipt Deadline: 10:00 A.M. (Central) on 11/01/2011, or the good through date above, whichever is earlier. Certified Funds Payable To: Wells Fargo Home Equity Deliver Payment To: A1TN: FRCL Inquiry Unit Brice, Vander Linden & Wernick, P.C. 9441 LBJ Freeway, Suite 250 Dallas, Texas 75243

Foreclosure processing will continue and will not be stopped unless the payoff amount is received in our office before the receipt deadline. If the payoff amount is not received by the receipt deadline and the good through date expires before the scheduled sale date, you must submit a request for an updated payoff amount.

The payoff amount reported in the attached may not include amounts incurred or accrued but not currently appearing in your lender's records. Your timely tendering of the payoff amount will stop the current foreclosure processing; however, you will have to arrange for the timely payment of any additional amounts incurred or accrued or your loan may be returned to foreclosure processing.

The foreclosure fees and costs reported in the attached may include both fees and costs already incurred and fees and costs projected to be incurred on/or before the good through date. Upon receipt of your timely payment, we will determine the actual fees and costs due to us at that time, invoice that amount to our client, and report the difference, if any, to your lender for further handling.

Should you have any questions concerning the attached information, please do not hesitate to contact us at 972/643-6600.

Very truly yours, Brice, Vander Linden & Wernick, P.C.

PAYOFF INQUIRY RESPONSE File: 9508-0790

DC BK14295 PG59 DC BK14295 PG60 Page 1 440 S.W.3d 10, 57 Tex. Sup. Ct. J. 588 (Cite as: 440 S.W.3d 10)