Obaro v. Mosaic Residential North Condominium Association

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DUKE OBARO,
Plaintiff.
V.
MOSAIC RESIDENTIAL NORTH
CONDOMINIUM ASSOCIATION, et
al.,
Defendants.
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CIVIL ACTION NO. 4:23-cv-01249
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff 	Duke 	Obaro 	brought 	this 	action 	against 	Defendants 	Mosaic
Residential 	North 	Condominiums 	Association 	(the 	“Association”); 	Fairport
Ventures, LLC;1 and John Does 1–5.2 I held a bench trial at the Houston federal
courthouse on January 27, 2026, and January 29, 2026.3 Three witnesses testified
live at the trial, and I admitted 48 exhibits into evidence. These findings of fact and
conclusions of law address all claims raised by the parties.
THE PARTIES AND THE CLAIMS
The Mosaic Residential North Condominium (the “Mosaic”) is a high-rise
luxury condominium in Houston, Texas. Obaro owned a residential unit at the
Mosaic. This dispute arises out of a non-judicial foreclosure sale of that unit
conducted by the Association.
Obaro brought the following causes of action against the Association:
(1) wrongful foreclosure; (2) negligence; (3) breach of contract; (4) breach of
fiduciary duty of care; and (5) preservation of redemption right. Prior to trial, I
1 In accordance with a stipulation filed with the court, Obaro’s claims against Fairport
were dismissed with prejudice prior to trial. See Dkt. 108.
2 Because Obaro never identified John Does 1–5 and did not litigate any claims against
John Does 1-5 at trial, all claims against John Does 1–5 have been abandoned.
3 The parties stipulated to a bench trial. See Dkt. 109.
United States District Court
Southern District of Texas
ENTERED
June 18, 2026
Nathan Ochsner, Clerk
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granted summary judgment for the Association on Obaro’s claims for wrongful
foreclosure, negligence, and breach of fiduciary duty. See Dkt. 58. At trial, Obaro
proceeded only on the breach of contract claim. 4
In a nutshell, Obaro claims that the Association breached a contractual
agreement between the parties by failing to accept assessment payments he made
in January and February 2022. The Association disputes that it ever refused to
accept a payment from Obaro.
LEGAL STANDARD
“It is the function of the district court at bench trial to listen to the testimony
of each witness, weigh his or her credibility, and make factual findings.” Garr v.
W. Sizzler, No. 00-31240, 2001 WL 1131869, at *1 (5th Cir. Sep. 18, 2001). “[T]he
court must find the facts specially and state its conclusions of law separately. The
findings and conclusions may be stated on the record after the close of the evidence
or may appear in an opinion or a memorandum of decision filed by the court.” Fed.
R. Civ. P. 52(a)(1). “The court need only make brief, definite, and pertinent findings
and conclusions upon contested matters. It need not make findings on stipulated
or undisputed facts, although it may have to make a finding if conflicting inferences
can be drawn from the undisputed facts.” 9C Wright & Miller, Fed. Prac. & Proc.
§ 2579 (3d ed. 2008) (cleaned up).
FINDINGS OF FACT
After considering the evidence, the relevant authorities, and the parties’
arguments, I make the following findings of fact pursuant to Rule 52(a)(1):
1. 	In 2014, Obaro purchased Unit 11002 (the “Unit”) at the Mosaic.
2. 	The Association is the property owners’ association for the Mosaic.
The Association is governed by its Board of Directors.
3. 	All condominium owners at the Mosaic, including Obaro, are subject
to the Declaration of Condominium for Mosaic Residential North Condominium
4 At a post-trial hearing, Obaro confirmed that he has withdrawn his claim against the
Association for preservation of redemption rights. See Dkt. 125 at 3.
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(the “Declaration”). The Declaration requires owners to pay, among other things:
(i) annual 	assessments 	or 	charges, 	(ii) special 	assessments 	relative 	to 	the
community, and (iii) specific assessments relative to each unit. The Declaration
creates a continuing lien on each unit to secure payment of the assessments and
other 	charges, 	including 	interest, 	late 	fees, 	legal 	fees, 	collection 	costs,
reimbursements, delinquency, and other charges. The Declaration gives the
Association the right to foreclose on the lien in accordance with Texas law.
4. 	In April 2011, Obaro provided Deola T. Ali, his close friend and
counsel, with a Power of Attorney (“POA”). Pursuant to the POA, Ali had full power
and authority to manage Obaro’s real property, including paying his assessments
at the Mosaic and dealing with the Association on amounts due. Ali testified that
he was the only person who communicated with the Association and its attorneys
on Obaro’s behalf. Obaro did not communicate directly with the Association or its
attorneys.
5. 	Ali paid Obaro’s assessments from Ali’s personal checking account
held at Chase Bank, which Obaro would fund from time to time as needed. Ali
would sometimes use his own funds for various payments to the Association if
funds in the account were insufficient or not timely deposited by Obaro.
6. 	During his ownership of the Unit, Obaro had repeated problems
timely paying amounts due to the Association. On February 4, 2015, less than a
year into Obaro’s ownership of the Unit, Vivian Tomlinson, outside counsel hired
by 	the 	Association 	to 	assist 	with 	the 	collection 	of 	past 	due 	maintenance
assessments and related charges, sent Obaro a notice of default. The default was
cured because no further action was taken on the February 4, 2015 default notice.
7. 	Obaro’s account had a zero balance on October 17, 2018. That was the
last time Obaro’s account had a zero balance until the Association foreclosed on
the Unit on January 3, 2023.
8. 	In July 2019, Tomlinson sent Obaro a letter asking him to pay an
outstanding balance on his account. Tomlinson followed up with similar letters in
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the Fall of 2019, 2020, and 2021. Although Obaro made partial payments from
time to time, he never fully paid the outstanding amounts due. The partial
payments Obaro made were deposited and applied to Obaro’s account.
9. 	Ali testified that he requested, on Obaro’s behalf, that Chase Bank
issue checks to the Association in January and February 2022 to cover the monthly
assessment charges. Obaro insists that the Association refused to accept those
partial payments. The Association vehemently denies that it rejected or refused
any payments from Obaro in January or February 2022. Matt Maier, the general
manager of the Mosaic, testified that he was not aware of any payments from Obaro
that the Association rejected in 2022 or at any other time. Tomlinson similarly
testified that she, on behalf of the Association, did not reject any payments
allegedly tendered for Obaro in 2022.
10. 	At no time in 2022 did Obaro (or Ali) complain to the Association or
Tomlinson that Obaro’s January and February 2022 payments had been rejected
or returned.
11. 	At trial, Obaro did not present any documentation to support his
assertion that the Association rejected payments in January and February 2022.
Although Ali testified that he requested payments to the Association be made from
a Chase Bank account that he solely controlled, he presented no returned checks
or bank statements reflecting that the payments had been made and returned. Ali
claimed that shortly after this lawsuit was filed, he asked Chase Bank for copies of
statements and other confirming documents but was told that the bank did not
have records that go that far back in time. This lawsuit was filed in April 2023,
making the relevant Chase Bank statements less than 14 months old at the time
Obaro filed suit.
12. 	Overall, I find the testimony from Maier and Tomlinson that the
Association did not reject or refuse any payments from Obaro in January or
February 2022 credible. I do not find Ali’s testimony that the Association rejected
payments from Obaro in January or February 2022 credible, especially because
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Obaro failed to present a shred of documentary evidence at trial from Chase Bank
reflecting: (1) that Obaro made payments to the Association in January and
February 2022; and (2) that the Association rejected such payments.
13. 	It is undisputed that Obaro did not make any payments to the
Association from March 2022 through December 2022.
14. 	On April 12, 2022, Tomlinson sent Obaro a letter, notifying him that
he had an outstanding balance in the amount of $6,470.85 for unpaid maintenance
assessments, late fees, collection costs, and legal fees. Tomlinson requested Obaro
pay the outstanding amount due within 10 days or face foreclosure.
15. 	On September 16, 2022, Tomlinson notified Obaro in writing that he
owed $9,875.98 for unpaid maintenance assessments, late fees, collection costs,
and legal fees. Tomlinson threatened to foreclose on the Unit unless Obaro paid
the outstanding amount in full within 45 days.
16. 	On 	December 	9, 	2022, 	Tomlinson 	sent 	Obaro 	another 	letter,
informing him that the Unit would be sold at a foreclosure sale on January 3, 2023,
unless Obaro paid his debt before that date. Obaro did not pay the amounts due by
that date.
17. 	The foreclosure sale occurred on January 3, 2023. Fairport Ventures,
LLC purchased the Unit for $171,000. The purchase price satisfied the lien and
associated sale costs. After the sale, Tomlinson sent Obaro a letter detailing the
outcome of the sale and informed him of the excess proceeds and his right to
redemption. Obaro did not exercise his right to redeem the property. The
$155,702.86 in excess proceeds have been deposited into the court’s registry and
remain there today.
CONCLUSIONS OF LAW
1. 	Obaro’s sole cause of action is for breach of contract. Obaro argues
that the Association breached the Declaration—which both parties acknowledge is
a valid contract—by prohibiting him from making partial payments on his account
in January and February 2022. To prevail on his breach of contract claim, Obaro
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must establish four elements: “(1) formation of a valid contract; (2) performance
by [Obaro]; (3) breach by the [Association]; and (4) [Obaro] sustained damages as
a result of the breach.” S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d
843, 847 (Tex. 2018) (quotation omitted). Obaro has the burden to prove by a
preponderance of the evidence each element of a breach of contract action. See
Hooper v. Generations Cmty. Fed. Credit Union, No. 04-12-00080-CV, 2013 WL
2645111, at *1 (Tex. App.—San Antonio June 12, 2013, no pet.).
2. 	Obaro’s breach of contract claim fails because he has not carried his
burden to establish by a preponderance of the evidence that the Association
breached the Declaration. This is the third element of a breach of contract claim.
As explained above, I find Maier’s and Tomlinson’s testimony that the Association
did not reject or refuse any payments from Obaro in January or February 2022 to
be highly credible.
3. 	Ali’s trial testimony is the only evidence Obaro presented that the
Association rejected payments from him in January or February 2022. But Ali’s
conclusory testimony is unpersuasive.
4. 	The 	United 	States 	Supreme 	Court 	has 	noted 	that 	it 	is 	a
“venerable rule that a factfinder may draw an adverse inference when a party fails
to produce highly probative evidence that it could readily obtain if in fact such
evidence exists.” Alexander v. S.C. State Conf. of the NAACP, 602 U.S. 1, 36
(2024). “The production of weak evidence when strong is available can lead only
to the conclusion that the strong would have been adverse. Silence then becomes
evidence of the most convincing character.” Interstate Cir. v. United States, 306
U.S. 208, 226 (1939) (cleaned up).
5. 	Chase Bank records would conclusively establish whether: (1) Obaro
made payments in January and February 2022; and (2) the Association rejected
such payments. Obaro’s failure to introduce documents or bank statements from
the Chase Bank account—that was solely under Ali’s control and from which Ali
claims payments were made but rejected—raises an adverse inference that such
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documents do not support Obaro’s claim that the Association rejected payments in
January and February 2022.
6. 	The Association did not breach the Declaration.
7. 	Even if the Association had breached the Declaration by rejecting
payments from Obaro in January and February 2022, Obaro’s breach of contract
claim would still fail because he has failed to establish, by a preponderance of the
evidence, that he sustained damages as a result of the breach. This is the fourth
element of a breach of contract claim. Had Obaro made partial payments that were
rejected by the Association in January and February 2022, Obaro would still have
been 	obligated 	to 	continue 	making 	monthly 	assessment 	payments 	for 	the
remainder of 2022. The Declaration provides that: “No Owner may exempt him or
herself from liability for or otherwise withhold payment of assessments for any
reason whatsoever, including, but not limited to, . . . the Association’s failure to
perform its obligations required hereunder.” Trial Exhibit 1 at p.12. Because Obaro
failed to make contractually mandated payments from March to December 2022,
he was in default of the Declaration, and the Association properly foreclosed on the
Unit.
CONCLUSION
For the reasons discussed above, the Association is entitled to a take-nothing
judgment in its favor. I will issue a final judgment separately.
SIGNED this 	day of June 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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