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					                                                           FILED OR RECORD
                                                                       JEL-_M
                                                               AT           'CLOCK_             •




                                       NO.   201 /-CCL,131,3            OCT 2 4 2012

MANUEL SALINAS AND JUAN M.                          IN THE COUNTY COURT AT LAW
FIGUEROA                                                        CAM ON COL .1( CLERK
Plaintiffs,                                                     By    1-Prli' _Deputy

V.                                                  NUMBER

 CATALINA PRESAS GARCIA,
 Defendant.                                         OF CAMERON COUNTY, TEXAS

                                 PLAINTIFFS' ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

        NOW COME MANUEL SALINAS and JUAN M. FIGUEROA, hereinafter called

Plaintiffs, complaining of and about CATALINA PRESAS GARCIA, hereinafter called

Defendant, and for cause of action show unto the Court the following:

                                DISCOVERY CONTROL PLAN LEVEL

        1       Plaintiffs intend that discovery be conducted under Discovery Level 3.

                                     PARTIES AND SERVICE

        2.      Plaintiff, MANUEL SALINAS, is an Individual whose address is in the Belle

Glade, Palm Beach County, Florida.

        3.      Plaintiff, JUAN M. FIGUEROA, is an Individual whose address is in

Brownsville, Cameron County, Texas.

        4.      Defendant CATALINA PRESAS GARCIA, an Individual who is a resident of

Texas, may be served with process at her office at the following address:

25 Skyview Dr.
Brownsville, Texas 78521

        Service of said Defendant as described above can be effected by personal
delivery.
PLAINTIFFS' ORIGINAL PETITION                                                          PAGE 1
                                 JURISDICTION AND VENUE
                The subject matter in controversy is within the jurisdictional limits of this
co u rt.
           6.   This court has personal jurisdiction herein because Defendant are Texas

residents.

           7.   Venue in Cameron County is proper in this cause pursuant to Section 17.56

of the Texas Business and Commerce Code and under Section 15.002(a)(1) of the Texas

Civil Practice and Remedies Code because all or a substantial part of the events or

omissions giving rise to this lawsuit occurred in this county.

                                             FACTS

           8.   On or about June of 2010, the Plaintiffs entered into an earnest money

contract for the sale of a home located at 113 Lucylle Lane, Brownsville, Cameron

County, Texas. Under the contract, Plaintiff JUAN M. FIGUEROA was to sell to Plaintiff

MANUEL SALINAS the above-described home. On the contract, Defendant CATALINA

PRESAS-GARCIA, signed as a representative of both the Seller and Buyer as an

intermediary. Plaintiff Manuel Salinas gave CATALINA PRESAS-GARCIA three cash

deposits to place in escrow with the title company, Sierra Title in Brownsville, Cameron

County, Texas.           On each of the following occasions, Defendant CATALINA

PRESAS-GARCIA gave MANUEL SALINAS receipts for the cash deposits as follows:

June 5, 2010 -                  $ 500.00
July 8, 2010 -                  $ 5,500.00
November 14, 2010               $ 2,000.00

Total cash                      $8,000.00 (See Exhibit A)



PLAINTIFFS' ORIGINAL PETITION                                                           PAGE 2
       Under the terms of the contract, Plaintiff MANUEL SALINAS was to give a cash

portion of the sale in the amount of $8,000.00 and finance $42,000.00 for a total purchase

price of $50,000.00.

        9.      After the November 14, 2010 deposit was placed with Defendant

CATALINA PRESAS-GARCIA, Plaintiffs continued to ask Defendant CATALINA

PRESAS-GARCIA why they could not close on the sale of the house and she continued

to give the parties excuses of why she could not close the transaction.

        CATALINA PRESAS-GARCIA did not place the contract with Sierra Title in

Brownsville, Cameron County, Texas until January 26, 2011. At that time, CATALINA

PRESAS GARICA only deposited in Sierra Title's escrow account $500.00 although she

had collected a total of $8,000.00 as of November 14, 2010. On or about February 24,

2011, the parties showed up at the title company ready to close and Defendant,

CATALINA PRESAS-GARCIA told them that they could not close and the deal fell

through. Plaintiff, MANUEL SALINAS shortly thereafter asked for the return of his

$8,000.00 and was astonished to find out that as of March 14, 2011, only $500.00 of the

$8,000.00 had been deposited into the escrow account at Sierra Title Company.

Plaintiff, MANUEL SALINAS asked Defendant, CATALINA PRESAS-GARCIA where his

money was and she could not answer said question. He told her she better deposit the

money by March 18, 2011 or he was going to go the police authorities. On that date,

March 14, 2011, Defendant CATALINA PRESAS-GARCIA deposited $3,600.00 in cash

into the escrow account at Sierra Title Company (See Exhibit B).      On March 18, 2011,

Defendant CATALINA PRESAS-GARCIA deposited two cash deposits (one deposit of


PLAINTIFFS' ORIGINAL PETITION                                                        PAGE 3
$2,900.00 and one deposit of $1,000.00) totaling $3,900.00 (See Exhibit C and D).

       10.      Defendant, CATALINA PRESAS-GARCIA violated the Rules of the Texas

Real Estate Commission §535.159 by not depositing the cash funds with Sierra Title

Company within two days from the receipt of the funds as required by said law.

                                DECEPTIVE TRADE PRACTICES

        11.     Plaintiffs would show that Defendant engaged in certain false, misleading

and deceptive acts, practices and/or omissions actionable under the Texas Deceptive

Trade Practices - Consumer Protection Act (Texas Business and Commerce Code,

Chapter 17.41, et seq.), as alleged hereinbelow.

        12.     Unconscionable Action or Course of Action. Defendant engaged in an

"unconscionable action or course of action" to the detriment of Plaintiffs as that term is

defined by Section 17.45(5) of the Texas Business and Commerce Code, by taking

advantage of the lack of knowledge, ability, experience, or capacity of Plaintiffs to a

grossly unfair degree.

        13.     Violations of Section 17.46(b). Defendant violated Section 17.46(b) of the

Texas Business and Commerce Code, in that Defendant:

                (a)      represented that an agreement confers or involves rights, remedies,

        or obligations which it does not have or involve, or which are prohibited by law; and

                (b)      failed to disclose information concerning goods or services which

        was known at the time of the transaction with the intention to induce the consumer

        into a transaction into which the consumer would not have entered had the

        information been disclosed.


PLAINTIFFS' ORIGINAL PETITION                                                          PAGE 4
       14.      Producing Cause. Plaintiffs would show that the acts, practices and/or

omissions complained of were the producing cause of Plaintiffs' damages more fully

described hereinbelow.

        15.     Reliance.       Plaintiffs would further show the acts, practices and/or

omissions complained of under Section 17.46(b) of the Texas Business and Commerce

Code were relied upon by Plaintiffs to Plaintiffs' detriment.

                                    COMMON LAW FRAUD

        16.     Plaintiffs further show that Defendant, CATALINA-PRESAS GARCIA made

material false representations to Plaintiffs with the knowledge of their falsity or with

reckless disregard of the truth with the intention that such representations be acted upon

by Plaintiffs, and that Plaintiffs relied on these representations to their detriment.

        17.     Plaintiffs would further show that Defendant, CATALINA-PRESAS GARCIA

concealed or failed to disclose material facts within the knowledge of Defendant,

CATALINA-PRESAS GARCIA, that Defendant, CATALINA-PRESAS GARCIA knew that

Plaintiffs did not have knowledge of the same and did not have equal opportunity to

discover the truth, and that Defendant, CATALINA-PRESAS GARCIA intended to induce

Plaintiffs to enter into the transaction made the basis of this suit by such concealment or

failure to disclose.

        18.     As a proximate result of such fraud, Plaintiffs sustained the damages

described more fully hereinbelow.

                         FRAUD IN A REAL ESTATE TRANSACTION

        19.     Plaintiffs would further show that the false representations and/or promises


PLAINTIFFS' ORIGINAL PETITION                                                            PAGE 5
of Defendant constitute fraud in a real estate transaction as defined by Section 27.01 of

the Texas Business and Commerce Code.

       20.      Plaintiffs are therefore entitled to recover from Defendant actual damages

described more fully hereinbelow, reasonable and necessary attorney's fees, expert

witness fees, costs for copies of depositions, and costs of court as provided by Section

27.01 of the Texas Business and Commerce Code.

                                     BREACH OF CONTRACT

        21.     Plaintiffs would further show that the actions and/or omissions of Defendant

described hereinabove constitute breach of contract, which proximately caused the direct

and consequential damages of Plaintiffs described hereinbelow, and for which Plaintiffs

hereby sue.

                                  BREACH OF FIDUCIARY DUTY

        22.       Defendant, CATALINA PRESAS-GARCIA breached her fiduciary duty to

hold the funds as required by law and instead used said funds for her use and enjoyment

in total violation of her fiduciary duties to the Plaintiffs.

                                ECONOMIC AND ACTUAL DAMAGES

        23.     Plaintiffs sustained the following economic and actual damages as a result

of the actions and/or omissions of Defendant described hereinabove:

                        (a)    Out-of-pocket expenses, including but not limited to extra
                        taxes incurred and lost interest in the anticipated funds.

                         (b)      Loss of use.

                         (c)      Interest and/or finance charges assessed against and paid by
                         Plaintiffs.


PLAINTIFFS' ORIGINAL PETITION                                                           PAGE 6
                        (d)     Loss of the "benefit of the bargain."

                                     MULTIPLE DAMAGES

       24.      Plaintiffs would show that the false, misleading and deceptive acts,

practices and/or omissions complained of herein were committed "knowingly" in that

Defendant had actual awareness of the falsity, deception, or unfairness of such acts,

practices, and/or omissions.

        25.     Plaintiffs further aver that such acts, practices, and/or omissions were

committed "intentionally" in that Defendant specifically intended that Plaintiffs act in

detrimental reliance on the falsity or deception or in detrimental ignorance of the

unfairness.

        26.     Therefore, Plaintiffs are entitled to recover multiple damages as provided by

17.50(b)(1) of the Texas Business and Commerce Code.

                                    EXEMPLARY DAMAGES

        27.     Plaintiffs would further show that the acts and omissions of Defendant

complained of herein were committed knowingly, willfully, intentionally, with actual

awareness, and with the specific and predetermined intention of enriching said Defendant

at the expense of Plaintiffs. In order to punish said Defendant for such unconscionable

overreaching and to deter such actions and/or omissions in the future, Plaintiffs also seek

recovery from Defendant for exemplary damages as provided by Section 41.003(a)(1) of

the Texas Civil Practice and Remedies Code and by Section 27.01 of the Texas Business

and Commerce Code.




PLAINTIFFS' ORIGINAL PETITION                                                           PAGE 7
       28.      The evidence will show that Defendant CATALINA-PRESAS GARCIA has

engaged in the same course of conduct before while working at the Aquatic Center at the

Brownsville Independent School District. The evidence will show that while working at

the BISD Aquatic Center, Defendant CATALINA-PRESAS GARCIA deposited hundreds

of dollars collected for the aquatic center into her personal bank account. This same

course of conduct entitles Plaintiffs to collect exemplary damages against Defendant,

CATALINA-PRESAS GARCIA.

                                   ATTORNEY'S FEES

        29.     Request is made for all costs and reasonable and necessary attorney's fees

incurred by or on behalf of Plaintiffs herein, including all fees necessary in the event of an

appeal of this cause to the Court of Appeals and the Supreme Court of Texas, as the

Court deems equitable and just, as provided by: (a) Section 17.50(d) of the Texas

Business and Commerce Code; (b) Section 27.01(e) of the Texas Business and

Commerce Code; (c) Chapter 38 of the Texas Civil Practice and Remedies Code; and, (d)

common law.

                                          PRAYER

        WHEREFORE, PREMISES CONSIDERED, Plaintiffs, MANUEL SALINAS and

JUAN M. FIGUEROA, respectfully pray that the Defendant be cited to appear and answer

herein, and that upon a final hearing of the cause, judgment be entered for the Plaintiffs

against Defendant for the economic, actual damages and exemplary damages requested

hereinabove in an amount in excess of the minimum jurisdictional limits of the Court,

together with prejudgment and postjudgment interest at the maximum rate allowed by


PLAINTIFFS' ORIGINAL PETITION                                                           PAGE 8
law, attorney's fees, costs of court, and such other and further relief to which the Plaintiffs

may be entitled at law or in equity, whether pled or unpled.

                                            Respectfully submitted,

                                            ZAYAS & HERNANDEZ, P.C.
                                            3100 E. 14th St.
                                            Brownsville, Texas 78521
                                            Telephone: (956)546-5060
                                            Telecopier: (956)541-4157
                                                              s




                                            RIC ARD E
                                            State Bar No..


                       PLAINTIFFS HEREBY DEMAND TRIAL BY JURY




PLAINTIFFS' ORIGINAL PETITION
                                                                                         PAGE 9
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         FILED FOR RECORD
                 ATJILW_O'CLOCK JIM •

                              OCT 2 4 2012
                     JOE G. RIVERA
                 CAMERON COUNTY CLERK
                 By          1•A'14"Deputy     .       -




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