David Johnson

David Johnson

Winstead PC

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Suit To Modify Trusts Did Not Violate No Contest Clause

Texas courts narrowly construe no-contest clauses. In Di Portanova v. Monroe, grandparents set up eight trusts for a grandchild that had a mental disability. No. 01-20-01019-CV, 2012 Tex. App. LEXIS 9859 (Tex. App.—Houston...more

7/10/2013 - Beneficiaries Disability Estate Planning Executors Mental Illness No Contest Clause Trusts

Court Issues Opinion On Home Equity Lending And Agency Determinations

In The Finance Commission of Texas v. Norwood, the Texas Supreme Court determined that an agency's interpretation of legislation was not outside the review of the courts. No. 10-0121, 2013 Tex. LEXIS 491 (Tex. June 21, 2013)....more

7/10/2013 - Home Equity Home Equity Line of Credit Lenders

C. Court Did Not Abuse Discretion In Denying Attorney's Fees To Successful Beneficiary In Declaratory Judgment Action

In Estate of Richardson, a remainder beneficiary of a trust filed a declaratory judgment action to declare that the trust would terminate five years after its creation. No. 14-12-00516-CV, 2013 Tex. App. LEXIS 2664 (Tex....more

7/9/2013 - Abuse of Discretion Attorney's Fees Beneficiaries Declaratory Judgments Trustees Trusts

Litigating Accounts With Rights of Survivorship in Texas

In this article: - I. Introduction - II. Valid Survivorship Accounts - III. Joint Accounts Between Spouses - IV. Burden Of Proving Enforcable Survivorship Accounts - V. Proving Contents Of...more

6/10/2013 - Arbitration Bank Accounts Beneficiaries Estate Planning Joint Accounts Safe Harbors Surviving Spouse Survivorship

Former Owner Cannot Challenge Foreclosure Procedure In Forcible Detainer Action

In McDaniel v. HSBC Bank USA, NA, McDaniel appealed a trial court's granting a bank possession of real property purchased at a foreclosure sale. No. 05-11-00238-CV, 2013 Tex. App. LEXIS 1079 (Tex. App.—Dallas February 6,...more

5/15/2013 - Deed of Trust Foreclosure

Court Reverses The Appointment Of A Receiver Over Trust Property

Courts generally review receiverships very closely, and a party requesting one should follow all required procedures. In Elliott v. Weatherman, parents created an irrevocable living trust and designated their three adult...more

5/15/2013 - Court-Appointed Receivers Irrevocable Trusts Receivership Trustees

Court Upheld A Waiver Of Property Code Rights And Affirmed A Deficiency Judgment Based On The Foreclosure Price

In New Millennium Homes, Inc. v. Texas Community Bank, NA, a debtor appealed a summary judgment granted to a lender based on a deficiency claim. No. 09-12-00073-CV, 2013 Tex. App. LEXIS 1598 (Tex. App.—Beaumont February 21,...more

5/14/2013 - Deficiency Judgments Fair Market Value Foreclosure Lenders Mortgages Waivers

A Bank Can Solely Look To Its Account Agreement To Determine The Ownership Of Funds In An Account

In Abbott v. Liberty National Bank, Abbott obtained a money judgment against Scotty Norwood and had a writ of garnishment served on Liberty National Bank, who had an account owned by Scotty’s wife, in an attempt to collect on...more

5/14/2013 - Banks Directed Verdicts

Court Dismissed Customer's Libel Claim Based On Credit Report

In Meisel v. U.S. Bank, Meisel was a customer of U.S. Bank who found an original signed payroll check dated several years earlier from his former employer. No. 05-11-01336-CV, 2013 Tex. App. LEXIS 1740 (Tex. App.—Dallas...more

5/13/2013 - Credit Reports Libel

Bank Did Not Alter Right To Foreclose By Agreeing To Work With The Debtor After Bankruptcy Dismissal

In Branch Banking and Trust Company v. TCI Luna Ventures, LLC, BB&T appealed a temporary injunction order prohibiting it from foreclosing on two properties owned by TCI Luna. No. 05-12-00653-CV, 2013 Tex. App. LEXIS 1745...more

5/13/2013 - Debtors Foreclosure Voluntary Dismissals

Court Issues Opinion Holding That Parties Can Enforce Arbitration Clauses In Trust Documents

Parties may want to resolve trust disputes in arbitration. There are perceived cost savings associated with arbitration, and arbitration can be quicker than normal litigation. But one of the main benefits is that the...more

5/13/2013 - Enforcement Mandatory Arbitration Clauses Trusts

Court Holds That Statute Of Limitations Applies To Section 50(a)(6) Constitutional Claims

In Priester v. JPMorgan Chase Bank, N.A., homeowners sued for declaratory relief against their lender claiming that the lien on their home was void under the Texas Constitution. No. 12-40032, 2013 U.S. App. LEXIS 3097 (5th...more

5/10/2013 - Declaratory Relief Statute of Limitations

Beware Of "Pocket" Judgments In Settlement Negotiations

In settlements, we often request that the debtor enter into an agreed judgment, perhaps with a simultaneous forbearance agreement outlining a payment plan. Debtors are often reluctant to sign these and typically ask that the...more

3/15/2013 - Agreed Judgments Creditors Debtors Payment Plans Pocket Judgments Settlement

Supreme Court Enforces Arbitration Clause And Confines Court Of Appeals To The Arguments Raised By The Parties

In Richmont Holdings, Inc. v. Superior Recharge Sys., L.L.C., an asset purchase agreement included a binding arbitration clause. No. 12-0142, 2013 Tex. LEXIS 71 (Tex. January 25, 2013). The seller of the business signed an...more

3/15/2013 - Arbitration Arbitration Agreements

Court Rules That Landowners Must Provide Factual Support For Market Value Opinions

The Texas Supreme Court has recently held that while the property owner rule establishes that an owner is qualified to testify as to market value, the testimony must meet the same requirements as any other opinion evidence....more

2/20/2013 - Evidence Expert Testimony Fair Market Value Property Owners Property Valuation

Indemnity Agreement's Scope Included Contractual Liabilities To Third Parties

A court of appeals recently held that an indemnity agreement between an operator and a contractor placed the burden on the contractor to indemnify the operator for the operator's third-party indemnity obligations that arose...more

1/15/2013 - Burden of Proof Express Negligence Doctrine Indemnity Agreements Third-Party Workplace Injury

Interest Under Will Did Not Revert Back To Estate

In Roberts v. Wilson, the El Paso Court of Appeals ruled that the wife of a beneficiary under a will was entitled to her husband’s interest in real property because he survived his parents and the bequeath did not have a...more

10/25/2012 - Beneficiaries Declaratory Judgments Petition for Partition Reverter Clause Standing Wills

Court Ruled For Bank That Forwarded Funds Sought In Seizure By DA's Office

In Miaoulis v. AmegyBank, the Houston First Court of Appeals held that two banks forwarding of funds to a district attorney’s office and their refusal to segregate funds under 59.12 of the Texas Code of Criminal Procedure did...more

10/23/2012 - AmegyBank Gambling Segregated Funds

Court Held That Executor Had A Right To Funds In Joint Account

In The Estate of Brown, the court of appeals affirmed a summary judgment for an executor, holding that the executor had the right to funds in a joint account. No. 04-11-00541-CV, 2012 Tex. App. LEXIS 5087 (Tex. App.—San...more

9/24/2012 - Estate Planning Executors Parol Evidence

Accountant/Friend Did Not Owe Fiduciary Duties To Decedent When Named A Beneficiary Of Various Accounts

In a suit by an administrator for funds in joint accounts, the court held that an accountant and beneficiary of the accounts did not owe fiduciary duties to the decedent where there was no evidence that the decedent was...more

8/2/2012 - Fiduciary Duty

Lender Did Not Have Burden To Prove Holder Status In Wrongful Foreclosure Suit

In Campbell v. Mortgage Electronic Registration Systems, Inc., the Campbells borrowed money from a lender to purchase a residence. No. 03-11-00428-CV, 2012 Tex. App. LEXIS 4030 (Tex. App.—Austin May 18, 2012, no pet....more

8/2/2012 - Burden of Proof Deed of Trust Foreclosure Mortgage Electronic Registration Systems Transfer of Interest Wells Fargo Wrongful Foreclosures

Based On Economic Loss Rule and Consequential Damages Clause, Supreme Court Holds That Plaintiff Had No Tort Claim

In El Paso Marketing, L.P. v. Wolf Hollow I, L.P., the Texas Supreme Court decided that the economic loss rule and a consequential damages clause eliminated a power plant owner’s claim against a pipeline company for...more

7/12/2012 - Assignments Consequential Damages Clause Economic Loss Doctrine Interruption in Service Pipelines Power Plants

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