PLAINTIFFS ORIGINAL PETITION

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March 14, 2023

UNITED STATES DISTRICT COURT

DISTRICT OF TEXAS

MASIKA RAY

Plaintiff,

v.

FIRST NATIONAL BANK OF GILMER, DANNY W WEEMS, INDIVIDUALLY AND AS PRESIDENT OF FIRST NATIONAL BANK OF GILMER,

Defendants.

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CIVIL ACTION NO. __________________

PLAINTIFF’S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

Masika Ray (“Ms. Ray”), Plaintiff, files her complaint against First National Bank of (“FNB”) Gilmer and Danny W. Weems (“Weems” and collectively, the “Defendants”) and shows:

I. DISCOVERY CONTROL PLAN

  1. Ms. Ray intends for discovery to be conducted under level 3 of Rule 190 of the Texas Rules of Civil Procedure. This case involves complex issues and will require extensive discovery. Therefore, Ms. Ray asks the Court to order that discovery be conducted in accordance with a discovery control plan tailored to the particular circumstances of this suit.
  1. PARTIES
  • Masika Ray, Plaintiff, is an individual who resides in Titus County, Texas.
  • First National Bank of Gilmer (“FNB”), Defendant, is a Texas State Financial Institution that can be served with process by and through their registered agent, Danny W. Weems, at 206 U.S. Highway 271 North, Gilmer, Texas 75644, or wherever he may be found.
  • Danny W. Weems is an individual, and the CEO and President of FNB. He is a resident of Texas who may be served at 206 U.S. Highway 271 North, Gilmer, Texas 75644, or wherever he may be found.
    • JURISDICTION AND VENUE
  • This Court has jurisdiction over this case in that the amount in controversy exceeds the minimum jurisdictional limits of this Court.
  • Ms. Ray seeks monetary relief over $1,000,000.00 and all other relief she deems herself entitled.
  • Venue is mandatory and proper in Gregg County, Texas, because all or a substantial part of the events giving rise to the lawsuit occurred in this county, see TEX. CIV. PRAC. & REM. CODE § 15.002.

IV. CONDITIONS PRECEDENT

  • All conditions precedent to recovery have been performed, waived, or have occurred.

V. FACTUAL BACKGROUND

  • In December of 2016, Ms. Ray requested and FNB granted a bank loan for $185,000.00 for the construction of her new home.
  • FNB represented to Ms. Ray that it was experienced in interim residential construction financing and project management.
  • Specifically, FNB represented to Ms. Ray that they would oversee the project, inspect the work performed by the contractor, manage the loan balance, and monitor the completion schedule. Believing and relying on the above representations, Ms. Ray selected FNB as her residential construction lender and entered into the aforesaid loan agreement.
  • On or about March 7, 2017 Ms. Ray and J&M Contractors, Inc. (“Contractors”) entered into a builder’s and mechanic’s Lien Contract to build a single-family residence at 31 CR 4742, Mt. Pleasant, Texas 75455.
  • FNB proceeded to advance the loan facility to the contractors. Unfortunately, and to Ms. Ray’s dismay, FNB failed to perform its obligation to conduct onsite inspections of the property to confirm that all work items and materials were secured and construction was proceeding as scheduled.
  • Further, FNB failed to obtain the requisite invoices as proofs of payment for materials and subcontractors from the contractor. FNB failed to perform any of the standard and accepted lender industry practices prior to making construction advances to the contractor.
  • Sometimes in May 2017, Ms. Ray expressed concerns about the progress of the construction to FNB.
  • Ms. Ray directly contacted the contractors seeking identities and contact information of the subcontractors, as well as receipts for drawings, and a schedule of progress. However, the contractors did not oblige Ms. Ray and no information was released. Alternatively, Ms. Ray asked FNB to request the information from the contractors. FNB obliged and requested the contractors provide all the information by May 18, 2017.
  • On May 18, 2017, FNB conducted the first work progress inspection. FNB discovered that the construction progress was significantly behind, despite already releasing $149,696.00 of the $185,000.00 loan.
  • The contractor failed to complete the residence by July 1, 2017 as was initially agreed. Further, FNB failed to honor its representations to Ms. Ray as FNB did not inspect the construction and manage the completion schedule prior to Ms. Ray’s concerns and prompting.
  • As a result of FNB’s failure to oversee the progress of the construction and inspect the work before advancing payments, the loan to Ms. Ray became imbalanced. FNB’s premature release of the monies allowed the contractor to be paid for services that had not been rendered.
  • The residence was never completed until sometime in November 2017, and this is after a subsequent agreement was entered into between Ms. Ray and the contractors, where Ms. Ray spent an additional $33,717.62 to have the residence completed.
  • Despite its failure to oversee the development of the residence as earlier represented, FNB subsequently pursued Ms. Ray demanding repayment of the loan amount, which amount had been carelessly released without proper measures/milestone to mark the progress of the construction.
  • Eventually, on or about October 15, 2018, FNB and Ms. Ray reached a settlement agreement. As part of the settlement agreement, FNB promised “to waive its right to seek recovery of any Note deficiency on its loan secured by the House upon obtaining record ownership of the House, which waiver shall not restrict FNBG’s right to recover House sales proceeds as contemplated herein nor to credit bid at a foreclosure sale, if any, of the House.” 
  • Further, FNB agreed “not to report its foreclosure on the House nor the status of the loan secured by the House to any of the 3 major credit reporting agencies, namely Experian, Equifax, and TransUnion.”
  • On October 26, 2018, Ms. Ray signed a warranty deed in lieu of foreclosure and the same delivered to FNB for their further action.
  • Despite Ms. Ray’s compliance with the settlement agreement, FNB failed to uphold its obligations under the agreement and proceeded to have Ms. Ray listed by the credit reporting agencies by the end of the year 2018.
  • Despite several assurances that the listing by credit reporting agencies will be removed, FNB failed to act accordingly to enforce the terms of the mediation agreement which both parties willingly and knowingly executed.
  • Unaware of the above, Ms. Ray sought to secure a loan facility from a third-party lender
  • On or about September 7, 2021, Ms. Ray was denied a loan facility for reason that the credit reporting agencies still reported a negative report against Ms. Ray with respect to the loan facility extended to Ms. Ray by FNB and is the subject of the mediation settlement agreement.
  • FNB did not deny this fact and proceeded to acknowledge the wrongful reporting via a letter addressed to Ms. Ray dated October 7, 2021. The contents of the letter acknowledged Ms. Ray’s submission of a warranty deed “in lieu” of foreclosure in October 2018.
  • Despite such acknowledgement and frustrating Ms. Ray’s efforts to secure further financing, FNB did not extend any form of an apology to Ms. Ray. However, it was suggested that corrections will be made to clear the misunderstanding.
  • Once again, Ms. Ray requested for a loan facility from a third-party lender. On December 28th 2021, Ms. Ray ‘s request was rejected and it is then she learned that FNB did not properly amend the Plaintiff’s credit report and the foreclosure therein.
  • Ms. Ray was once again directed to contact FNB in order to resolve the issue.
  • Ms. Ray issued several correspondences to FNB seeking have the matter resolved, only to be unsuccessful.
  • Consequently, Ms. Ray submitted a complaint to the Office of the Comptroller of the Currency (OCC) and the Department of Justice. The OCC respondent by issuing a letter to FNB directing that FNB respond to Ms. Ray’s queries, which instruction FNB did not execute.
  • Owing to the actions and inaction of FNB, Ms. Ray and her family have been subjected to unnecessary strife, pain and emotional suffering.
  • Ms. Ray and her family were constrained to exit their 4-bedroom house, and relocate to a 2-bedroom apartment.
  • Ms. Ray’s children who are now forced to share a room, where one child is an adult-child diagnosed with autism who requires special care and attention.
  •  

VI. CAUSES OF ACTIONS

CLAIMS AGAINST FIRST NATIONAL BANK OF GILMER

  1. Count 1 – Negligence
  • In order to establish that tortious interference with a contract has occurred, Ms. Ray need only establish the following elements: (1) the existence of a contract subject to interference; (2) the occurrence of an act of interference that was willful and intentional; (3) the act was the proximate cause of the plaintiff’s damage; and (4) actual damage or loss occurred.
  • FNB owed a legal duty to Ms. Ray because they entered into a binding contract obligating FNB to perform their duties in a reasonable manner.
  • FNB breached their duty by failing to check the progress of the construction and confirming purchases before approving disbursements the contractors.
  • Further, Following the mediations settlement agreement entered into on October 15, 2018, FNB was obliged not to have the foreclosure listed with the credit reporting agencies.
  • Contrary to the above, the foreclosure was listed against Ms. Ray’s credit report by the end of 2018 and continues to remain listed.
  • Ms. Ray has issued numerous correspondences and complaints, all of which have not been complied with.
  • FNB’s failure to act in accordance with their duties under the contract proximately caused Ms. Ray’s property damages associated with her inhabitable home.
  • Ms. Ray seeks unliquidated damages from FNB within the jurisdictional limits of this Court.

B.  Count 2 – Negligent Misrepresentation

  • In order to establish that FNB negligently misrepresented information, Ms. Ray need only prove that: (1) FNB provided information in the course of its business, or in a transaction in which it has a pecuniary interest; (2) The information supplied was false; (3) FNB did not exercise reasonable care or competence in obtaining or communicating the information; (4) Ms. Ray justifiably relied on the information; and (5) Ms. Ray suffers damages proximately caused by her reliance on the false information.
  • FNB provided information to Ms. Ray regarding a loan she planned to obtain through their financial services.
  • FNB expressed to Ms. Ray that before any disbursements were given to the contractor, inspections and/or progress check-ups would be completed to ensure the loan and the progress on the residence remained balance; however, FNB failed to perform any inspections or progress check-ups before disbursing monies to J&M.
  • FNB failed to exercise reasonable care or competence in obtaining or communicating the information they provided to Ms. Ray.
  •  Ms. Ray relied on the information provided to her and chose FNB as the loan holder.
  • As a result, Ms. Ray suffered great financial loss because her residence is uninhabitable and she has been placed in a significant financial bind to secure temporary housing for her and her children.

C. Count 3 – Breach of Contract

  • In order to establish that FNB breached its contract, Ms. Ray must show that: (1) a valid contract exists; (2) Ms. Ray performed or tendered performance according to the terms of the contract; (3) FNB breached the contract; and (4) Ms. Ray sustained damages as a result of the breach.
  • On October 15, 2018, a mediation settlement agreement was entered into by Ms. Ray and FNB. Pursuant to the terms of the agreement, FNB was obliged not to have the foreclosure listed with the credit reporting agencies.
  • Contrary to the above, the foreclosure was listed against Ms. Ray’s credit report by the end of 2018 and continues to remain listed.
  • Ms. Ray has issued numerous correspondences and complaints, all of which have been ignored or not complied with.
  • Ms. Ray complied with the terms of the contract and submitted a duly executed warranty deed in lieu of foreclosure.
  • FNB breached the contract by failing to honor its obligations and having the foreclosure listed with the credit reporting agencies.
  • FNB’s failure to comply with the terms of the contract and failure to follow standard and acceptable lender practices caused Ms. Ray to suffer both property and personal damages.
  • Ms. Ray is entitled to recover reasonable attorney’s fees under TEX. CIV. PRAC. & REM. C. Ch. 38 because this is a suit for breach of a written contract.

D. Count 4 – Breach of Deceptive Trade Practice Act

  • In order to establish that FNB breached the Deceptive Trade Practice Act (“DTPA”), Ms. Ray must only prove: (1) Ms. Ray was a consumer as defined in the DTPA; (2) FNB engaged in at least one of the false, misleading, or deceptive acts or practices listed in the DTPA; (3) Ms. Ray detrimentally relied on the false, misleading, or deceptive act or practice; and (4) FNB’s false, misleading, deceptive act or practice was a producing cause of Ms. Ray’s injury.11
  • Ms. Ray is a consumer under the DTPA because she is an individual who acquired goods or services by purchase.
  • FNB is an entity that can be sued under DTPA.
  • FNB committed a deceptive act and practice in connection with Ms. Ray’s purchase of goods. FNB violated the DTPA when FNB engaged in false, misleading, or deceptive acts or practices that Ms. Ray relied on to her detriment.
  • Specifically, FNB misrepresented their services in relation to Ms. Ray’s purchase and construction of the residence regarding the characteristics, benefits, and qualities. Additionally, FNB misrepresented the standards or quality of the newly constructed home.
  • FNB violated the DTPA when FNB engaged in unconscionable action or course of action that, to Ms. Ray’s detriment, took advantage of Ms. Ray’s lack of knowledge, ability, experience, or capacity to a grossly unfair degree.
  • Specifically, FNB knew at the time they negotiated with Ms. Ray on her new loan that they were inexperienced and could not adequately ensure that the proper inspections would be conducted on the construction.
  • FNB took advantage of Ms. Ray’s lack of knowledge and gave her the impression that inspections would be conducted. Additionally, FNB misrepresented to Ms. Ray that the loan would stay balanced with the progress of the residence; however, FNB paid J&M for incomplete work and work not yet started.
  • As a result, to a grossly unfair degree, Ms. Ray has not been able to inhabit her residence.
  • Ms. Ray gave FNB notice as required by Texas Business & Commerce Code Section 17.505(a). In a written notice sent to FNB by Ms. Ray through counsel. The notice contained the details of the complaint, the amount of economic damages, the amount of mental-anguish it has caused Ms. Ray and the amount of expenses, including attorney fees reasonably incurred by Ms. Ray in asserting the claim.
  • FNB’s wrongful conduct was a producing cause of Ms. Ray’s injury, which resulted in damages.
  • Ms. Ray seeks economical damages which are in the jurisdictional limits of this Court.
  • Additionally, Ms. Ray seeks mental anguish damages. FNB acted knowingly and intentionally, which entitles Ms. Ray to recover mental anguish damages under Texas Business & Commerce Code section 17.50(b)(1). FNB knew and intentionally induced Ms. Ray into obtaining a loan with the false understanding that the proper inspections and balancing would be conducted.
  • In fact, FNB had no intention of conducting any inspections or ensuring a proper balance was kept of the loan.
  • Because of the deceptive conduct of FNB, Ms. Ray has been extremely stressed, making it difficult to sleep and conduct her normal life work.
  • Moreover, FNB acted knowingly, which entitles Ms. Ray to recover treble economic damages under Texas Business & Commerce Code section 17.50(b)(1). The defendant knew and intentionally induced Ms. Ray into believing that the proper inspections and balancing would be conducted.
  • Ms. Ray is entitled to recover reasonable and necessary attorney fees for prosecuting this suit under the Texas Business and Commerce Code section 17.50(d). Ms. Ray has incurred reasonable attorney fees associated with FNB’s conduct.

E.  Count 5 – Third Party Interference with Business Relations

  • In order to establish that tortious interference with a contract has occurred, Ms. Ray need only establish the following elements: (1) the existence of a contract subject to interference; (2) the occurrence of an act of interference that was willful and intentional; (3) the act was the proximate cause of the plaintiff’s damage; and (4) actual damage or loss occurred.
  • Ms. Ray entered into contracts with two attorneys to protect her rights. FNB willfully and intentionally sent threatening emails alleging a conflict of interest and intent to have her counsel removed the case should she proceed to the first attorney.
  • FNB willfully and intentionally contacted the second attorney and threatened her second attorney.
  • FNB’s actions were the proximate cause for Ms. Ray being forced to find counsel in a different city to protect her rights.
  • Ms. Ray lost two well-equipped attorneys, suffered monetary damages, and suffered unjust delay because FNB willfully and intentionally interfered with her business relations.

F.  Count 6 – Breach of Fiduciary Duty

  • In order to establish that a defendant has caused a breach of a fiduciary duty Ms. Ray need only prove the following elements: (1) there is fiduciary relationship between the plaintiff and defendant; (2) the defendant breached his fiduciary duty to the plaintiff; and (3) the defendant’s breach proximately caused injury to the plaintiff or benefit to the defendant.
  • A fiduciary relationship existed between Ms. Ray and FNB when they entered into a contract.
  • FNB breached their fiduciary duty to Ms. Ray by failing to be diligent and issuing funds to the contractors without any progress reports, inspections, or receipts regarding the residential construction.
  • FNB’s breach proximately caused injury Ms. Ray and, in turn, benefited them because FNB still received payments from Ms. Ray.

G.  Count 7 – Racial Discrimination

  • In order to establish that a defendant has caused a breach of a fiduciary duty Ms. Ray need only prove the following elements: (1) there is fiduciary relationship between the plaintiff and defendant; (2) the defendant breached his fiduciary duty to the plaintiff; and (3) the defendant’s breach proximately caused injury to the plaintiff or benefit to the defendant.
  • A fiduciary relationship existed between Ms. Ray and FNB when they entered into a contract.
  • FNB breached their fiduciary duty to Ms. Ray by failing to be diligent and issuing funds to the contractors without any progress reports, inspections, or receipts regarding the residential construction.
  • FNB’s breach proximately caused injury Ms. Ray and, in turn, benefited them because FNB still received payments from Ms. Ray.

VII. JURY DEMAND

  • Ms. Ray demands a jury trial and tenders the appropriate fee with this petition.

VIII. REQUEST FOR DISCLOSURES

  • Pursuant to Texas Rule of Civil Procedure 194, Defendants are requested to disclose all information as provided by Rule 194.2 within fifty (50) days of being served with a copy of this request and this Original Petition.

PRAYER

  • For these reasons, Masika Ray respectfully request that the Court issue citations for the Defendants to appear and answer, and that Masika Ray be awarded a judgment against the Defendants for the following:
  1. Economic damages
    1. Treble damages
    1. Prejudgment and post judgment interest
    1. Court costs
    1. Attorney fees
  • All other relief to which Ms. Ray shows herself justly entitled.

Respectfully submitted,

On this _____ Day of ___________ 2022

By: MASIKA RAY

PLAINTIFF PRO SE

Masika Ray

3637 US. Hwy. 259 #606

Longview, TX. 75605

903-736-1238

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