TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-06-00058-CV
In re Herndon Y. Robinson
O R D E R
Relator Herndon Y. Robinson has filed his petition for writ of injunction and motion for temporary relief, asking this Court to stay the foreclosure sale scheduled for February 6, 2006.
In 2001, Robinson took out a loan from Southwest Equities, Inc. in exchange for a promissory note and a deed of trust, which were endorsed and assigned to Bankers Trust Company, as custodian. The deed of trust is serviced by Saxon Mortgage Services, Inc., f/k/a Meritech Mortgage Services, Inc. In August 2003, Robinson filed suit in the 295th District Court of Travis County, naming Saxon Mortgage and Southwest Equities as defendants and arguing that the lien was invalid because the note and deed were defective. (1) In August 2005, the district court granted summary judgment in favor of Saxon Mortgage and Southwest Equities, and Robinson appealed to this Court (our cause number 03-05-00676-CV). Robinson's brief has been filed; appellees Saxon Mortgage and Southwest Equities have not filed their briefs.
On December 30, 2005, Robinson filed an original petition in the 345th District Court of Travis County, seeking declaratory relief and a temporary injunction against Deutsche Bank Trust Company Americas f/k/a Bankers Trust Company. (2) Robinson alleged that Deutsche Bank was seeking to foreclose on the property and sought a declaratory judgment that the promissory note was void. The district court initially stayed a sale scheduled for January 3, 2006, but later refused to grant a temporary injunction. On January 27, Robinson filed his petition for writ of injunction and motion for temporary relief in this cause, stating that a foreclosure sale has been scheduled for February 6, 2006. On January 31, this Court requested a response from the real parties in interest.
Due to the interrelated nature of these two proceedings, we will consolidate the proceedings for purposes of consideration. It appears that a stay is appropriate to protect our jurisdiction in these causes because an appeal over which this Court has jurisdiction has been perfected and the subject matter of the appeal needs to be preserved. See Tex. Gov't Code Ann. § 22.221(a) (West 2004); Tex. R. App. P. 24.4(c), 29.3, 52.10; Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 658 (Tex. 1992). Accordingly, we grant Robinson's request for temporary relief and stay the foreclosure sale. See Tex. R. App. P. 24.4(c), 29.3, 52.10. Our stay will remain in effect pending further order from this Court. Nothing in this order should be construed as an expression of this Court's opinion on the merits of the underlying appeal.
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David Puryear, Justice
Before Chief Justice Law, Justices B. A. Smith and Puryear
Filed: February 3, 2006
1. Trial court cause number GN302858.
2. Trial court cause number D-1-GN-05-4585.