ACCEPTED
01-15-00505-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/8/2015 12:41:37 PM
CHRISTOPHER PRINE
CLERK
CASE NO. 01-15-00505-CV
FILED IN
1st COURT OF APPEALS
MARCY LERCH § IN THE FIRST COURT HOUSTON,
OF TEXAS
APPELLANT § 6/8/2015 12:41:37 PM
§ CHRISTOPHER A. PRINE
Clerk
V. § APPEAL OF TEXAS
§
WILMINGTON TRUST NA §
SUCCESSOR TRUSTEE FOR THE §
MERRILL LYNCH MORTGAGE §
INVESTOR TRUST SERIES 2006- § HOUSTON, TEXAS
HE5, APPELLEE
APPELLANT'S APPLICATION FOR
TEMPORARY RESTRAINING ORDER, TEMPORARY INJUNCTION
AND PERMANENT INJUNCTION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME, MARCY LERCH, ET-AL, herein, and files this Appellant's
Application for Temporary Restraining Order and Temporary and Permanent Injunction against
WILMINGTON TRUST NA SUCCESSOR TRUSTEE FOR THE MERRILL
LYNCH MORTGAGE INVESTOR TRUST SERIES 2006-HE5, Appellee, herein
pending appeal, and in support thereof, shows the court the following:
FACTS
1. The case involves a home equity loan foreclosure. The property was foreclosed on or
about January 2015 by the appellee without first obtaining an Order of Foreclosure as
required under Tex. R. Civ. P. 736.
2. On or about March 20th, 2015 the lower court granted the Appellee a writ of Possession
to evict the Appellant. The Appellant immediately filed a motion of reconsideration and
a stay of writ and it was denied.
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3. On or about May 21st, 2015 the Court denied Appellants motion to stay the
enforcement of writ of possession. The Appellant thereafter filed a notice of Appeal
and the case was assigned to the first Court of Appeal under this cause
4. However, without notice to the Appellant, Appellee is trying to execute the writ
possession issued by the lower Court.
5. Now the Appellee is in the process of evicting the Appellant before the Appeal is heard
and an issue relating to title is still pending also at the 240th Judicial Court of Fort Bend
County and pending Appeal in this Court. Hence this motion ensued.
6. It is well established that, as in here, when the defaulted loan is a home equity; prior to
foreclosure sale, the District Court in the county where the property is located must
approve the foreclosure taking place by issuing an Order of Foreclosure. And that
without such Order, any foreclosure sale is void. See Rule. 736.11(d)
7. An Order of Foreclosure is without prejudice and has no res judicata, collateral
estoppel, estoppel by judgment, or other effect in any other judicial proceeding. After
an order is obtained, a person may proceed with the foreclosure process under
applicable law and the terms of the lien sought to be foreclosed. See Rule 736.9.
8. Further, a proceeding or order under this rule is automatically stayed if a respondent
files a separate, original proceeding in a court of competent jurisdiction that puts in
issue any matter related to the origination, servicing, or enforcement of the loan
agreement, contract, or lien sought to be foreclosed prior to 5:00 p.m. on the Monday
before the scheduled foreclosure sale. As the Defendant did her. Hat petition was never
challenged by See Rule 736.11
9. Because the evidence showed that any foreclosure sale conducted by WILMINGTON
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TRUST NA SUCCESSOR TRUSTEE FOR THE MERRILL LYNCH MORTGAGE INVESTOR
TRUST SERIES 2006-HE5 was void, they have failed to show that they owned the
property at the time of its forcible detainer action. Therefore, the county court did
not have jurisdiction to determine the issue of possession because that determination
rested on the resolution of title. See MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS v. Young, No. 2-08-088-CV (Tex. App. June 4, 2009). See also, Green Tree
Servicing, LLC v. Woods, 388 S.W.3d 785 (Tex. App.-Houston [1st Dist.] 2012, no
pet.).1.
INJUNCTIVE RELIEVE
10. On or about May 21st, 2015 the Court denied Appellants motion to State enforcement
of writ of possession. The Appellant thereafter filed a notice of Appeal and the case
was assigned first Court of Appeal under case number. However, without notice to the
Appellant Appellee is trying to execute the writ possession issued by the lower Court.
2 Unless Appellant herein, is immediately enjoined and restrained, Appellee will be
evicted from his residence and render any judgment on Appeal in this case ineffective
ELEMENTS FOR INJUNCTIVE RELIEF
3. In light of the complexity of the facts and issues in this case and since the case
involves a home equity loan. Appellant is likely to succeed on appeal.
4. Appellant is likely to succeed on the merits of this lawsuit on appeal because the
Applicant’s conduct will null and void the judgment of this Court
5. Unless this Honorable Court immediately restrains the Appellee the Appellant will
suffer immediate and irreparable injury, for which there is no adequate remedy at law to give
Appellant complete, final and equal relief. More specifically, Appellant will show the court the
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following:
A. The harm to Appellant is imminent because movant will be denied the right
to an appeal.
B. This imminent harm will cause Appellant irreparable injury in that as a
result of the denial of the Movants constitution right to a fair trial.
C. There is no adequate remedy at law which will give Appellant complete,
final and equal relief because it will render any judgment in this case ineffective.
BOND
6. Appellant is willing to post a reasonable temporary restraining order bond and
requests the court a bond be waived
REMEDY
7. Appellant has met Appellant's burden by establishing each element which must be
present before injunctive relief can be granted by this court, therefore Appellant is entitled to the
requested temporary restraining order.
8. Appellant requests the court to restrain Appellee from executing the writ of
possession.
9. It is essential that the court immediately and temporarily restrain Geraldine Barnes
Gibson from executing the writ of possession. And rendering any final judgment in this case
ineffective.
It is essential that the court act immediately, prior to giving notice to Appellee and
a hearing on the matter because it will render any judgment in this case ineffective.
10. In order to preserve the status quo during the pendency of this action, Appellant
requests that the Appellee be temporarily enjoined from executing the writ of possession and
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rendering any final judgment in this case ineffective.
11. Following Appeal on the merits, that the Court permanently enjoin
WILMINGTON TRUST NA SUCCESSOR TRUSTEE FOR THE MERRILL LYNCH MORTGAGE
INVESTOR TRUST SERIES 2006-HE5, herein, from evicting and selling the said property.
PRAYER
WHEREFORE, PREMISES CONSIDERED, MOVANTS, Appellant herein, respectfully
prays that:
A. WILMINGTON TRUST NA SUCCESSOR TRUSTEE FOR THE MERRILL
LYNCH MORTGAGE INVESTOR TRUST SERIES 2006-HE5, will be cited to appear and
answer herein;
B. A temporary restraining order will issue without notice to WILMINGTON
TRUST NA SUCCESSOR TRUSTEE FOR THE MERRILL LYNCH MORTGAGE
INVESTOR TRUST SERIES 2006-HE5 restraining Appellee, Appellee's officers, agents,
servants, employees, agents, servants, successors and assigns, and attorneys from directly
or indirectly expunging the Lis Pendens and/or selling the said property.
C. The Court sets a reasonable bond for the temporary restraining order;
D. After notice and hearing, a temporary injunction will issue enjoining and
restraining WILMINGTON TRUST NA SUCCESSOR TRUSTEE FOR THE MERRILL
LYNCH MORTGAGE INVESTOR TRUST SERIES 2006-HE5 Appellee’s officers, agents,
servants, employees, successors and assigns, and attorneys from directly or indirectly
expunging the Lis Pendens and selling the said property.
E. After trial on the merits, the Court permanently enjoin
WILMINGTON TRUST NA SUCCESSOR TRUSTEE FOR THE MERRILL LYNCH
MORTGAGE INVESTOR TRUST SERIES 2006-HE5,Appellee’s officers, agents,
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servants, employees, successors and assigns, and attorneys from directly or indirectly
expunging the Lis Pendens and selling the said property.
F. For such other and further relief, in law or in equity, to which
Appellant may be justly entitled.
Respectfully submitted,
By /S/ Diogu Kalu Diogu II, LL.M
Diogu Kalu Diogu II, LL.M
Texas Bar No. 24000340
Email: diogu.diogu.law.firm@gmail.com
P. O. Box 994,
Fulshear, Texas 77441
Tel. (713) 791 3225/Fax. (832) 408-7611
UNSWORN DECLARATION
My name is Diogu Kalu Diogu II, my date of birth is June 25th, 1959, and my address is
4736 Gainsborough Drive, Brookshire, Texas 77423, United States. I declare under penalty of
perjury that the foregoing is true and correct.
Executed in Fort Bend County, State of Texas, on the 05th, Day of June 2015.
Respectfully submitted,
By: /S/ Diogu Kalu Diogu II, LL.M
Diogu Kalu Diogu II, LL.M
Texas Bar No. 24000340
P. O. Box 994, Fulshear, Texas 77441
Tel. (713) 791 3225/Fax. (832) 408 7611/
Attorney for Plaintiff,
Diogu Kalu Diogu II, LL.M.
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