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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION DAVID A. HAWKINS, and TRACY J. HAWKINS, on behalf of themselves and all others similarly situated, Plaintiffs, v. WELLS FARGO BANK, N.A., Defendant.

CIVIL ACTION NO. 1:11-cv-877

PLAINTIFFS' ORIGINAL CLASS ACTION COMPLAINT Plaintiffs David A. and Tracy J. Hawkins ("Plaintiffs"), by and through their attorneys, bring this action on behalf of themselves and all others similarly situated against Wells Fargo Bank, N.A. Plaintiffs hereby allege, on information and belief, except as to those allegations which pertain to the named Plaintiffs, which allegations are based on personal knowledge, as follows: I. INTRODUCTION 1. Plaintiffs bring this action against Wells Fargo Bank, N.A., including its

division Wells Fargo Home Mortgage, and Wells Fargo Home Mortgage's division America's Servicing Company ("Wells Fargo" or "Defendant") on behalf of Texas resident home equity loan borrowers who received loan modifications by Defendant, acting as lender or servicer of home equity loans.

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2.

Defendant made Texas home equity loan modifications that did one or

more of the following in violation of the Texas Constitution's homestead protection provisions: (1) turned past-due interest into new principal; (2) featured a loan-to-value ratio to a figure above 80%; and (3) failed to include mandatory disclosures concerning the protections afforded by the Texas Constitution concerning home equity loans. These problems are unique to home equity loans, as opposed to original purchase-money mortgage loans, which are not at issue in this case. 3. Defendant knew or should have known these home equity loan

modifications violated the following provisions of the Texas Constitution: Article XVI Sec. 50(a)(6)(L). That constitutional provision mandates that any modification of a home equity loan be repaid in "substantially equal" installments that "equal or exceed the amount of accrued interest as of the date of the scheduled installment." A home equity loan with interest arrears would not be a proper candidate for a modification unless (1) the borrower caught up past due payments or (2) the lender waived accrued interest as of the date of the modification. Art. XVI Sec. 50(a)(6)(B). The home equity loan modifications featured a loan-to-value ration in excess of 80%, the maximum allowed by Texas Constitution. Article XVI Sec. 50(g). Even after Defendant learned that its practices violated the Texas Constitution, it continued making misrepresentations to Texas home equity borrowers that was intended to cause, or did cause, those borrowers to lose their homes. What Defendants did was threaten foreclosure

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they knew they couldn't legally bring while at the same time pressure borrowers to short-sell their homes or give over a deed in lieu of foreclosure in order to avoid the more devastating prospect of foreclosure, which involves deficiencies of loan balances and wrecked credit. 4. Violations of the relevant provisions of the Texas Constitution entail the

lender's forfeiture of the loans or inability to enforce the lien. 5. There is another layer to Defendants' deceit that is even more insidious.

Wells Fargo is fond of blaming borrowers for getting behind on payments. However, in this case, Wells Fargo affirmatively induced or required borrowers otherwise current on their loans to incur interest arrearages ostensibly in order to qualify them for the loan modifications. Yet these induced missed payments just put borrowers behind and therefore subject to foreclosure. Indeed, Wells Fargo brought foreclosure proceedings against named Plaintiffs the Hawkins precisely owing to the payments the Hawkins missed at Wells Fargo's behest. 6. Plaintiffs therefore bring this class action on behalf of themselves and all

others similarly situated asserting violations of the Texas Constitution Article XVI Sections 50(a)(6)(B), 50(a)(6)(L), and 50(g). Plaintiffs seek damages and equitable relief on behalf of the Class, which relief includes forfeiture of loan balances; a payment by Defendants of $1,000.00 per subject loan and refinance or remedy that otherwise complies with the Texas Constitution; disgorgement of all payments made by borrowers under the illegal home equity loan modifications, interest and charges incurred by or assessed against class members by Defendants during the pendency or processing of a loan modification; a permanent injunction halting foreclosure or misrepresentations

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concerning Wells Fargo's right to foreclose on class members' homes securing the subject home equity loans; costs and expenses, including attorney's fees and expert fees; and any additional relief that that Court determines to be necessary to provide complete relief to Plaintiffs and the Class. II. PARTIES 7. Plaintiffs David A. and Tracy J. Hawkins ("the Hawkins") are a married

couple and were at all relevant times citizens of the State of Texas, residing at 217 Dawn River Cove, Austin, Texas 78732. Plaintiffs have spent three years in the home equity loan modification process with Defendants. Defendants have now threatened foreclosure for the second time following the making of a home equity loan modification. Plaintiffs kept a contemporaneous diary of Defendants' misconduct off and on from 2009 onward,1 after having been issued an illegal home equity loan modification that exceeded an 80% loan-to-value ration and rolled over some $70,000.00 or more in interest arrearages into a modified loan issued in January, 2010, and recorded by Wells Fargo in Travis County in July, 2010.2 8. Defendant Wells Fargo Bank, N.A., is a citizen of South Dakota for

diversity purposes. It may be served with service of process on its registered agent in Texas for service of process, Corporation Service Company, 211 E. 7th Street, Suite 620, Austin, TX 78701-3218. III. JURISDICTION AND VENUE

1 Exhibit 1. 2 Exhibit 2.
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9.

The court has subject matter jurisdiction over the lawsuit under 28 U.S.C.

1332(d), the Class Action Fairness Act, because the suit is a class action, the parties are minimally diverse, and the amount in controversy exceeds $5 million, excluding interest and costs. 10. The court has personal jurisdiction over Defendant because it

purposefully availed itself of the privilege of conducting activities in Texas through lending and loan servicing involving residents of Texas. 11. Venue is proper in this district under 28 U.S.C. 1391(b)(2) because a

substantial part of the events or omissions giving rise to this claim occurred in this district. IV. FACTS -- HOME EQUITY LOAN MODIFICATIONS 12. Defendant Wells Fargo Bank, N.A. ("Wells Fargo") is the successor in

interest to Wells Fargo Home Mortgage, Inc., which engaged in home equity lending and servicing in Texas. Wells Fargo, under various names including "America's Servicing Company," services the loans of other lenders as well, in Texas and elsewhere. 13. Defendant required Texas home equity loan borrowers, even those

current on their loans, to cease making payments as a precondition for consideration for loan modifications. This created a situation where if Wells Fargo later denied the loan modification, borrowers were already behind on their loans and therefore subject to foreclosure. Home equity loan borrowers got boxed in upfront.

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14.

Defendant then dragged home equity loan borrowers through months or

years of bungling and misconduct before granting a loan modification. Sometimes, as with the Hawkins, Defendant sought to foreclose against the borrower during this process because of Defendant's own mishandling (purposeful or not) of the underwriting. Thus, Wells Fargo was initiating foreclosures against borrowers whom Wells Fargo had led down the path of missed payments. At all events, borrowers who got loan modifications were months or years behind on interest payments. Defendant put borrowers in a situation where they were forced to accept the loan modification terms, whatever the terms. 15. Defendant included the past-due interest ("arrearages") from the

payments Defendants induced borrowers to miss into the loan modifications. 16. Defendant did not make a determination whether the loan modification

featured a loan-to-value ratio of 80% or less. In many cases, such as the Hawkins', it did. 17. Defendant did not include in any of the documentation provided to home

equity borrowers who got loan modifications the disclosures required by Art. XVI Sec. 50(g) of the Texas Constitution, which informed borrowers of all the protections afforded by the Texas Constitution to home equity borrowers including their rights, including the right to make a demand for Defendant to cure the defective loan modification. 18. After Defendant learned it had violated the Texas Constitution with these

sorts of home equity loan modifications, it still did not attempt to cure the problem by going back to rework the loans. Instead, it intentionally instituted a program of notifying distressed borrowers who missed payments under the illegal loan modifications that they

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were "in foreclosure." To avoid such a financial calamity, which usually entails the threat to borrowers of a deficiency judgment, and always includes wrecked credit, Wells Fargo offered borrowers the option of short-selling their home or giving a deed in lieu of foreclosure. It was no "offer" -- it was a loaded gun. Wells Fargo would be able to avoid filing a wrongful foreclosure suit based on an illegal loan since the borrowers had given up their homes to try to avoid the noticed foreclosure. -- THE TEXAS CONSTITUTION'S HOMESTEAD PROTECTIONS 19. The Texas Constitution Article XVI Section 50(a)(6)(L) at all relevant

times forbade modifications to home equity loans with outstanding interest arrearages. Either the borrowers have to bring their loans current, or the lender or servicer has to waive the interest arrears. A modification to a home equity loan in Texas cannot increase the principal. 20. The Texas Joint Financial Regulatory Agencies issued an explicit

advisory to this effect in April, 2009.3 21. Article XVI Sec. 50(a)(6)(B) of the Texas Constitution sets a maximum

loan-to-value ratio for a home equity loan at 80%. 22. Article XVI Sec. 50(g) contains mandatory disclosures to consumers for a

home equity loan lien to be enforceable. 23. Article XVI Section 50(x) of the Texas Constitution sets out a number of

penalties for violations of Section 50, including forfeiture of loans to victimized borrowers.

3 Exhibit 3. Document available at http://www.fc.state.tx.us/homeinfo/modibulletin.pdf.

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24.

Wells Fargo nevertheless offered Texas home equity loan borrowers

illegal modifications that included past due interest, exceeded the 80% loan-to-value ratio, and failed to contain disclosures required by law. 25. Wells Fargo had affirmatively required its borrowers to get behind on

payments even if they otherwise were not as a precondition to considering a borrower for a loan modification. 26. Wells Fargo then accepted payments under the illegal home equity loan

modification agreements that did not comply with the Texas Constitution Article XVI Section 50(a)(6)(L) in that interest was already in arrears on the associated loans and got turned into new principal. 27. Wells Fargo never disclosed to home equity loan borrowers, even after

the Joint Financial Regulatory Agencies' bulletin of April 2009, that these home equity loan modifications violated the Texas Constitution in including past-due interest. Wells Fargo itself knew about these problems at some point in 2009 or 2010, yet far from trying to fix the problem, it commenced the cover-up. 28. Wells Fargo never disclosed the 80% loan-to-value issue to borrowers.

Wells Fargo never provided the mandatory disclosures that would educate the borrowers about the flaws and borrowers' rights. Wells Fargo did not apprise borrowers that interest forgiveness for the arrears could cure part of the problem; nor did Wells Fargo offer interest forgiveness; nor when borrowers sought interest forgiveness was that granted. Instead, if one of the illegal loan modifications went into default, Wells Fargo would threaten to foreclose and/or demand a short-sale or deed-in-lieu of foreclosure.

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Wells Fargo knew it couldn't foreclose; it was just trying to avoid being trapped in the way it had been trapping its borrowers for years. -- THE HAWKINS HOME EQUITY LOAN MODIFICATION 29. The Hawkins got a $680,000 home equity loan in February, 2007. They

made all their payments but contacted Wells Fargo's America's Service Company division in late 2008 about ways to reduce their payments owing to an unanticipated increase in their property tax bill, which was escrowed into their monthly loan payment. Wells Fargo told them they needed to stop making loan payments completely in order to qualify for a loan modification.4 So that's what they did. 30. After they stopped making payments per Wells Fargo's request, the

underlying lender filed a foreclosure action against the Hawkins in September, 2009 for the missed payments.5 31. After nearly a year of Wells Fargo bad acts, bad faith, and misconduct in

the handling and servicing the Hawkins' loan, and the destroying of the Hawkins' credit rating because of the payments they skipped at Wells Fargo's insistence and the foreclosure suit that ensued, Wells Fargo "formally approved" a loan modification for the Hawkins and attached the paperwork for the Hawkins to execute and mail.6 In fact, Wells Fargo never supplied the Hawkins with a version executed by Wells Fargo, though Wells Fargo itself later recorded such a document.7

4 Exhibit 4. 5 Cause No. D-1-GN-09-002990 (Travis County 53rd Jud. Dist.). 6 Exhibit 5. 7 Exhibit 4.
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32.

The loan modification jacked up the principal to $757,828.86, rolling the

missed payments into a new loan balance, flatly in violation of the Texas Constitution. 33. The Travis County assessed value of the Hawkins property for 2010 was

$510,231.00, thus making the loan modification reflect a 150% loan-to-value ratio, far in excess of Texas Constitutional allowances. 34. The Hawkins never received the constitutional disclosures relating to

home equity loans. 35. The Hawkins made a number of payments under this unfair, illegally

modified home equity loan, but they ultimately fell behind. 36. Wells Fargo has again threatened to foreclose on the Hawkins even

though it has no legal basis for doing that with the illegal loan modification. Wells Fargo has been threatening foreclosure against the Hawkins up to mid-September, 2011. 37. At the same time, Wells Fargo has tellingly refrained from actually filing

a foreclosure suit while it pressures the Hawkins, in threatening and browbeating phone conversations as late as mid-September, 2011, to short-sell or agree to a deed-in-lieu-offoreclosure. Thus, it is clear that Wells Fargo knows it cannot foreclose on the Hawkins, yet it is using the threat of a foreclosure to railroad the Hawkins into liquidating their homestead. 38. But for Wells Fargo's acts and promises, Plaintiffs the Hawkins would

either never have faced such financial calamity including destroyed credit, or they could have taken steps to manage their finances and home ownership in an orderly way years ago. In any event, a change in position or proof of damages is not required to be shown

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for Wells Fargo to forfeit the loan under the mandatory penalties meted out by the Texas Constitution. 39. The Hawkins loan, and those of borrowers in the prospective class in the

same situation, is squarely subject to the state-constitutional penalty of forfeiture to the borrower and cannot be foreclosed on. 40. Plaintiffs are presently aware of at least two other prospective class

members' fact scenarios that are like the Hawkins' and believe there are thousands or ten of thousands more in Texas based on Wells Fargo's standing as the #2 mortgage servicer in the U.S.8 V. CAUSES OF ACTION A. VIOLATIONS OF THE TEXAS CONSTITUTION ARTICLE XVI SECTION 50(A)(6)(L) 41. Plaintiffs re-allege and incorporate by reference the allegations contained

in the paragraphs above as if fully set forth herein. 42. The Texas Constitution provides, in relevant part, as follows:

Sec. 50. HOMESTEAD; PROTECTION FROM FORCED SALE; Sec. 50. HOMESTEAD; PROTECTION FROM FORCED SALE; MORTGAGES, TRUST DEEDS, AND LIENS. (a) The homestead of a family, or of a single adult person, shall be, and is hereby protected from forced sale, for the payment of all debts except for: ... (6) an extension of credit that: ... (B) is of a principal amount that when added to the aggregate total of the outstanding principal balances of all 8 Exhibit 6 (Affidavits of Shonna Rice and Cynthia Brown, including exhibits thereto).
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other indebtedness secured by valid encumbrances of record against the homestead does not exceed 80 percent of the fair market value of the homestead on the date the extension of credit is made; ... (L) is scheduled to be repaid: (i) in substantially equal successive periodic installments, not more often than every 14 days and not less often than monthly, beginning no later than two months from the date the extension of credit is made, each of which equals or exceeds the amount of accrued interest as of the date of the scheduled installment . . . (g) An extension of credit described by Subsection (a)(6) of this section may be secured by a valid lien against homestead property if the extension of credit is not closed before the 12th day after the lender provides the owner with the following written notice on a separate instrument: "NOTICE CONCERNING EXTENSIONS OF CREDIT DEFINED BY SECTION 50(a)(6), ARTICLE XVI, TEXAS CONSTITUTION: "SECTION 50(a)(6), ARTICLE XVI, OF THE TEXAS CONSTITUTION ALLOWS CERTAIN LOANS TO BE SECURED AGAINST THE EQUITY IN YOUR HOME . . . [full quote omitted for brevity] "THIS NOTICE IS ONLY A SUMMARY OF YOUR RIGHTS UNDER THE TEXAS CONSTITUTION. YOUR RIGHTS ARE GOVERNED BY SECTION 50, ARTICLE XVI, OF THE TEXAS CONSTITUTION, AND NOT BY THIS NOTICE." 43. Regarding subsection (a) quoted above, the October 7, 1998 official

commentary by the Texas Joint Financial Regulatory Agencies states as follows: 6(L) Repayment schedule The loan must be scheduled to be repaid in substantially equal successive monthly installments, each of which equals or exceeds the amount of accrued interest as of the date of the scheduled installment. The second clause does not specifically state that a portion of principal must be reduced with each payment, but in order to give effect to both clauses of the amendment, to have substantially equal installments would require that some amount of principal must be reduced with each installment. This effectively precludes the permissibility of balloon payments. This provision does not preclude a lender's recovery of payments as

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necessary for other amounts such as taxes, adverse liens, insurance premiums, collection costs, and similar items.9 44. In April, 2009, the same Joint agencies issued a Bulletin clarifying the

issue of past-due interest by stating as follows: The issue of whether the scheduled installment equals or exceeds the amount of accrued interest may be addressed by having the owner bring the loan current either before the modification is signed or when it is signed. This could also be accomplished by having the lender waive the accrued interest as of the date the home equity loan is modified.10 45. Thus, under Art. XVI, Sec. (a)(6)(L), a lender cannot (among other

things) include past-due interest in the principal amount of a modified home equity loan. The Texas Constitution sets out penalties for same. Among those penalties is lender forfeiture of the loan.11 Failure to provide the disclosures set out at subsection (g) renders the home equity loan lien unenforceable according to that subsection. 46. Wells Fargo has been aware of the constitutional defects with its loans

since 2009 or 2010. Wells Fargo did not cure the defects timely even after it learned of them. 47. Wells Fargo itself has been actively declaring the illegality of home

equity loan modifications containing arrearages since 2010 as a reason for denying modifications to home equity borrowers -- including those who already have illegallymodified loans! These statements constitute Wells Fargo's admission that its modifications violated the Texas Constitution.

9 See http://www.occc.state.tx.us/pages/Legal/Laws/home_eq/commentary.htm (last accessed October 4, 2011). 10 Exhibit 3. 11 Texas Const. Art. XVI, Sec. 50(a)(6)(Q)(x).
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48.

Wells Fargo's misrepresentations to borrowers that they were subject to

foreclosure of their illegally-modified loans prevented borrowers from notifying Wells Fargo of the need to cure, so Defendants are equitably estopped from claiming that a 60day cure period has not commenced. 49. In addition, Wells Fargo's cover-up by misrepresenting to borrowers with

illegal loan modifications that they were "in foreclosure" raises an equitable bar to Wells Fargo asserting that it has a right to cure. Wells Fargo ought not benefit from such willful misconduct by being afforded a right to cure now. The time for that has come and gone. 50. Finally, Wells Fargo's failure to provide the mandated constitutional

disclosures also meant that borrowers couldn't trigger the cure period, again equitably barring Wells Fargo from now seeking cure rights. VI. CLASS ACTION AVERMENTS 51. Plaintiffs bring this class action on behalf of themselves individually and

all others similarly situated, pursuant to Rule23(b)(3) of the Federal Rules of Civil Procedure. 52. The proposed class consists of all Texas residents whose home equity

loans have been serviced by Wells Fargo Bank, N.A., or its predecessor Wells Fargo Home Mortgage, Inc., including any subsidiaries, where those borrowers received from Wells Fargo a modification of their home equity loan that featured any of the following: past-due interest rolled into a new principal sum; a loan-to-value ratio greater than 80%; or

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non-disclosure of the mandatory language at Tex. Const. Art. XVI Sec. 50(g).

53. a.

This action is properly brought as a class action for the following reasons: the proposed class is so numerous that the joinder of all class members is impracticable. While Plaintiffs do not know the exact number and identity of all class members, Plaintiffs believe that there are thousands or tens of thousands of class members based on the size of Wells Fargo's lending and servicing operations. The precise number of members can be ascertained through discovery, which will include Defendants' loan servicing and other business records;

b. There are questions of law or fact common to the class. Such common questions include, but are not limited to: a. whether Defendants offered home equity loan modifications to borrowers with interest arrearages; b. whether Defendants required or otherwise induced missed payments by borrowers current on their loans as a precondition to modifying home equity loans; c. whether Defendants induced borrowers to incur interest arrearages as part of the loan modification process; d. whether Defendant modified Texas home equity loans in violation of the Texas Constitution Article XVI Section 50(A)(6)(L) by including interest arrearages within a new or restated principal;

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e. whether Defendant modified Texas home equity loans in violation of the Texas Constitution Article XVI Section 50(A)(6)(B) by permitting those loans to exceed an 80% loan-to-value ratio at the time of the modification; f. whether Defendant modified Texas home equity loans in violation of the Texas Constitution Article XVI Section 50(g) by modifying loans without making the mandatory disclosures at the time of the modifications; g. whether Defendant learned of the above violations in 2009 or 2010; h. whether Defendant failed to cure the violations in the manner afforded by the Texas Constitution Art. XVI Sec. 50(A)(6)(Q)(x) within 60 days of learning thereof; i. whether Defendant, after learning of the violations, notified borrowers who missed payments under the illegally-modified loans of impending foreclosure; j. whether Defendant demanded, offered, suggested, pressured or cajoled borrowers into the options of short-sales or deeds-in-lieu of foreclosure; k. whether Defendant is equitably barred, stemming from its misconduct or its prior notice, from asserting that it still retains the 60-day cure rights afforded to lenders without notice under Tex. Constitution Art. XVI Sec. 50(A)(6)(Q).

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c. The claims or defenses of the representative parties are typical of the claims or defenses of the class. Plaintiffs and all class members have been injured by the same wrongful practices of Defendant. Plaintiffs' claims arise from the same practices and conduct that give rise to the claims of all class members and are based on the same legal theories. d. The representative parties will fairly and adequately protect the interests of the class in that they have no interests antagonistic to those of the other proposed class members, and Plaintiffs have retained attorneys experienced in consumer class actions and complex litigation as counsel. e. A class action is superior to other available methods for the fair and efficient adjudication of this controversy for at least the following reasons: a. Given the size of individual proposed class member's claims and the expense of litigating those claims, few, if any, proposed class members could afford to or would seek legal redress individually for the wrongs Defendants committed against them and absent proposed class members have no substantial interest in individually controlling the prosecution of individual actions; b. A class action involving putative loan modifications that Wells Fargo argues are not loan modifications at all is presently pending in this district. Pennington v. HSBC Bank USA, Nat'l Assoc. & Wells Fargo Bank N.A., Cause No. 1:11-cv-785. Wells Fargo's motion to dismiss on that basis (and others) is pending. This Hawkins proposed class action may prove suitable for consolidation

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should Wells Fargo's contentions in Pennington be rejected such that a modification is determined to have occurred. The harm to Texas residents of losing homesteads owing to the alleged bad acts of Wells Fargo necessitates immediate pursuing of state constitutional claims stemming from inarguably completed home equity loan modifications in this case. c. This action will promote an orderly and expeditious administration and adjudication of the proposed class claims, economies of time, effort and resources will be fostered and uniformity of decisions will be insured; and d. Without a class action, proposed class members will continue to suffer damages, and Defendants' violations of law will proceed without remedy while Defendants continue to reap and retain the substantial proceeds of its wrongful conduct. e. Plaintiffs know of no difficulty that will be encountered in the management of this litigation which would preclude its maintenance as a class action. f. Defendants have, or have access to, address information for the Class members, which may be used for the purpose of providing notice of the pendency of this class action. g. Plaintiffs seek damages and possible equitable relief on behalf of the proposed class on grounds generally applicable to the entire proposed class.

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h. The disposition of Plaintiffs' and proposed class members' claims in a class action will provide substantial benefits to both the parties and the Court. i. The proposed class is ascertainable and there is a well-defined community of interest in the questions of law or fact alleged herein since the rights of each proposed class member were infringed or violated in the same fashion. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray this Court enter a judgment against Defendant that: A. This action be certified and maintained as a class action under Rule 23 of the

Federal Rules of Civil Procedure and certify the proposed class as defined, appointing Plaintiffs as representatives of the Class, and appointing the attorneys and law firms representing Plaintiffs as counsel for the Class; B. Awards actual, general, special, exemplary, Texas Constitutional, statutory, and

other damages and remedies as to all Causes of Action where such relief is permitted; C. Awards Plaintiffs and proposed class members the costs of this action, including

reasonable attorneys' fees and expenses; D. Orders Defendants to immediately cease the wrongful conduct set forth above;

enjoins Defendants from continuing to engage in deception, conceal material information, and conduct business via the unlawful business acts and practices complained of herein; orders Defendants to engage in a corrective notice campaign, and requires Defendants to refund to Plaintiffs and all of the class members payments made under the illegal modification agreements; F. Awards equitable monetary relief, including restitution and disgorgement of all ill-

gotten gains, and the imposition of a constructive trust upon, or otherwise restricting the
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proceeds of Defendants' ill-gotten gains; G. H. I. Awards pre-judgment and post-judgment interest at the legal rate; Orders any appropriate declaratory relief; and Such further legal and equitable relief as this Court may deem just and proper. JURY DEMAND Plaintiffs demand a trial by jury on all issues so triable. DATED: October 6, 2011 /s/ J. Patrick Sutton J. Patrick Sutton Texas Bar No. 24058143 1706 W. 10th Street Austin, TX 78703 ph (512) 417-5903 f (512) 355-4155 David M. Gottfried Texas Bar No. 08231200 The Law Office of David M. Gottfried, PC 1505 W. 6th Street Austin, TX 78703 Tel. (512) 494-1481 Fax (512) 472-4013 Attorneys for Plaintiffs

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