Liquidated Damages, Contract For Deed...

I have several contracts that I accepted as collateral for a loan to a family member. Sure enough the family member defaulted on the loan and I had to record the deed that he provided before I gave him the money. Not wanting to have to mail 16 different checks to 16 different first lien holders (He aquired all of the properties via seller financing and then occupied them via a wrap around note) I decided to approach my lending institution for a cash out refinance of the properties. Recognizing the value of a lump sum payment vs. a promise of payments over time, I wrote all of the first lien holders soliciting a discounted lump sum payoff. It was at this point that I met "Mrs. Smith", one of the first lien holders, who informed me that my relative was basically a no good, and that she wasn't going to discount the mortgage, and further more, she was forclosing because of a due on sale violation. I went back and looked at the contract for deed, and sure enough, my idiot relative had allowed the attorney who had prepared the documents to include a due on sale provision into all three of the contracts for deed which were used to convey three different properties, all owned by this "Mrs. Smith". I take issure with the idea that a single individual would forclose on three separate properties all at once siting the DOS provision when she herself sold the properties knowing full well that a single individual could not be expected to owner occupy all of them.

Anyway, I figure that she's got me right where she wants me in that regard and I began to brainstorm a means of constructing my own legal arsonal. One of the first things that I noticed is that she has not been providing the required yearly accounting statements called for in the famous legislation enacted in September 2001. Also, I discovered by speaking to one of the occupants (He actually contacted me complaining about this) that "Mrs. Smith" had not used a hazard insurance benefit that she had recieved to repair the damage done during a recent storm. This situation is excacerbated by the fact that the hazard insurance agent has known this senior citizen since high school. This brings up two separate issues both regarding the Texas Fair Trade Practices Act, which states in short that a purchaser must be listed as a co-beneficiary and that the benefit from such a policy must include the endorsment of both parties. A violation of the TFTPA carries the same statutorily called for liquidated damages as the non-compliance with the administrative requirements of the contract for deed, at $250 per day.

Unfortunately (and this leads us to my question for you) after having consulted an attorney, he made the claim to me that those liquidated damages only apply in the situation of an owner occupied property. However, after reading the ENTIRE Texas Property Code, I can find nothing which actually states that this is the case. The small town that I live in limits the choice of attorneys somwhat so the idea of going to a competitor is not viable. (This guy is the only Real Estate Attorney in town who actually is willing to litigate)

Question 1: Is it true that those damages only apply in the case of an owner occupied property?

Question 2: If so, where is this mentioned in the law?

Question 3: Assuming that I am in the right here, can anyone recommend an attorney who would be willing to take the case on a contengincy basis?

Thanks
Bryan
806-371-9747[ Edited by bpntx1 on Date 11/14/2003 ]