In re Plainscapital Bank, NUMBER 13-17-00021-CV

Decision Date08 June 2018
Docket NumberNUMBER 13-17-00021-CV
CourtTexas Court of Appeals

On Petition for Writ of Mandamus.


Before Chief Justice Valdez and Justices Benavides and Hinojosa

Memorandum Opinion by Justice Hinojosa1

Relators PlainsCapital Bank (PCB) and Mike L. Molak filed a petition for writ of mandamus seeking to compel the trial court to (1) grant their motion to abate the underlying lawsuit in Cameron County based on the dominant jurisdiction of a case previously filed in Bexar County, and (2) grant their motion to transfer venue fromCameron County to Bexar County.2 Concluding that the Bexar County court has dominant jurisdiction, we conditionally grant the petition for writ of mandamus.


On August 2, 2016, PCB filed suit against Cantera-Parkway Development, SA, LP (Cantera); Alberto Berlanga Bolado, individually (Berlanga); GMC General Partner, LLC; Fernando Alejandro Cano Martinez, individually; GMC SA de CV; and Materiales y Construcciones Villa De Aguayo, SA de CV in trial court cause number 2016CI12887 in the 150th Judicial District Court of Bexar County, Texas. In this lawsuit, PCB sought to collect on a note executed by Cantera and guaranties on the note executed by the other defendants. PCB's petition alleged that jurisdiction and venue was proper in Bexar County "because Defendant Cantera Parkway is a Texas limited partnership with its principal and registered address in Bexar County, Texas. The real property which secures the herein described Note is located in Bexar County, Texas."

According to PCB's petition, the defendants defaulted in paying the note, PCB "has accelerated the debt according to the terms of the note," and there "is currently due the sum of $3,975,779.43, principal, plus accrued interest as provided for in the note." Under the title "Forfeiture Action," the petition also alleged:

[T]he note is secured by a deed of trust covering certain real property described therein (the "Property") comprised of approximately 46.175 acres located in Bexar County, Texas. On May 12, 2012, the United States government filed a Verified Complaint for Forfeiture, in Civil Action No. SA-12-CV-0508-XR, styled United States of America v. A 46.175 Acre Tract of Land, More or Less (the "Forfeiture Action"), effectively taking over jurisdiction of the Property. On May 23, 2016, in the Forfeiture Action the Court signed an order (the "Sale Order") that provided that, among other things, upon the sale of the Property, the United States would receive $1million (referred to in the Sale Order as the "Substitute Res"), and that Plaintiff, [PCB] would receive "payment in full." Defendants have disputed the amount provided to them by [PCB] as "payment in full". Therefore, [PCB] requests the Court in this case determine the proper amount representing "payment in full" due to [PCB] from Defendants, and grant judgment to [PCB] as requested herein below.

PCB also sought a temporary injunction whereby, after the property was sold and after the United States received its payment, "the undisputed portion of the remaining net proceeds" would be paid to PCB, and "the remaining portion of the net proceeds," which PCB termed the "Disputed Res," would be held in the registry of the court until final judgment. In its prayer for relief, PCB asked for judgment "to receive the Disputed Res," $3,975,779.43 as the principal amount due on the note; accrued and unpaid interest, post-judgment interest, attorney's fees, and costs of court.

On August 23, 2016, Cantera filed suit against PCB and Molak, PCB's representative, in the 197th District Court of Cameron County in trial court cause number 2016-DCL-05590. Cantera's original petition and its third and fourth amended petitions, contain substantially identical recitations of facts, stating in pertinent part as follows:

10. In February of 2006, [Cantera] purchased a 46.175 Acre Tract of land situated in Bexar County, Texas . . . . The property was financed through a financing agreement with First National Bank in February of 2006 and the note was renewed in December of 2008 . . . . [PCB] is the successor in interest to the Federal Deposit Insurance Corporation, as Receiver for First National, Edinburg, Texas . . . . On information and [belief], [PCB] purchased the note in question from the Federal Deposit and Insurance Corporation for "cents on the dollar", i.e., for a significantly discounted amount.
11. At the time of the renewal of the financing agreement with First National Bank, or shortly thereafter, complete ownership and interest in [Cantera] was acquired by [Berlanga]. [Berlanga] began development of the property in question with the intention of developing the property as a commercial development in a rapidly developing part of Bexar County. The property in question has an undeveloped value of over twenty million dollars ($20,000,000).
12. Prior to the acquisition of [Cantera] by [Berlanga], the predecessors in interest of said company had significant difficulties in complying with the terms of the financing agreement with First National Bank. Notwithstanding these problems and delays in payment, a custom and practice developed between the predecessors in interest and First National Bank which allowed the note to remain in effect without being declared in default as long as, within a reasonable time, [Cantera] would become in compliance with the terms of the note. This agreement developed the custom and practice of the parties [which] was never rescinded by Defendants.
13. On or about May 22, 2012, said real property was seized by the United States of America in a seizure proceeding brought in Bexar County in the United States District Court for the Western District of Texas. . . .
14. Prior to the seizure by the United States of America, [Cantera], through its new owners, complied with all the terms of the original and renewed financing agreement with [PCB].
15. As a result of the seizure proceeding, [Cantera] was unable to develop said property and generate the necessary income that a property with such a large note would require. Notwithstanding the lack of income, [Cantera] continued to timely make payments on the note in question until February of 2015, at which time [Cantera] fell behind on one quarterly payment.
16. Even though federal law required the Federal District Court to authorize the acceleration of the note and declaration of default by [PCB], [PCB and Molak] illegally issued notice of default and acceleration of the note and sought foreclosure of the property. Because [PCB and Molak] had failed to obtain leave of court to declare the note in default and to accelerate the note, the [f]ederal court denied [PCB's] numerous attempts to foreclose on the property in question. [Cantera] remained in compliance with the terms of the note in question after the Federal District Court allowed it to "catch-up" with the . . . payment that it had failed to pay in time. As a result of [PCB and Molak's] failure to seek leave from the federal court to declare the note in default and accelerate the note and under the long custom and practice developed between [Cantera] and [PCB and Molak] regarding occasional late payments, the note financing the property in question is not in default.
17. On May 23, 2016, four years after it was started, the seizure proceeding was resolved pursuant to an agreement reached with the United States . . . . The agreement made it clear that:
a. [Cantera] was not involved in any criminal activity andb. [Cantera] was permitted to sell the property.
18. [Molak] has illegally directed the attorneys for [PCB] to declare the note in default and accelerate the note, even though a federal court notified him through his attorneys that it had improperly declared the note in default and accelerated it and even though, pursuant to the customs and practice that the parties have long engaged in with respect to occasional late payments on the note, the note was in fact never in default. On information and belief, [Molak] has sought to declare the note in default, accelerate it and foreclose on the property so that he can sell the property at huge windfall for [PCB]. [PCB] has been paid millions of dollars in excess of the cost that it incurred in purchasing the note from the Federal Deposit Insurance Corporation and has lost nothing as a result of the one late payment made in February of 2015.
19. [PCB and Molak's] attempt to wrongfully foreclose on [Cantera's] property is illegal, fraudulent, in violation of the agreement between the Parties and a violation of state law.
20. [Cantera] has entered into an agreement with the United States of America with respect to the seizure proceedings. This agreement allows [Cantera] to sell the property and upon the sale to pay the United States of America the sum of one million dollars, after the amounts [owed] to [PCB] under the note are paid. The balance of the proceeds of the sale will be paid to . . . any lien holder and finally to [Cantera], after all lien holders and the United States of America receives their money under the settlement agreement. Although a contract for the sale of the property in question has been executed with a third party, [PCB] is threatening to interfere with the sale of the property by insisting in the payment to it of a grossly inflated payoff amount on the note based upon its assertion that it is entitled to accelerated interest amounts that it alleges it is owed as if the note had been legally declared in default and accelerated over a year and a half ago. The amounts that it is requesting, which includes interest at the default rate of 18 percent and attorney's fees in the amount of approximately $129,000.00 above what it is entitled exceeds the amounts owed by [Cantera] by over a million dollars and relies on its illegal and improper declaration of default and illegal acceleration on the note. Such

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