1. Plaintiff is
2. Plaintiff sued Defendants for: Breach of Contract; Violations of Deceptive Trade Practices Act; Breach of Duty of Cooperation; and Breach of Fiduciary Duty and has sought an Application for Temporary Restraining Order and Temporary Injunction.
3. Defendants Fannie Mae and Seterus, Inc. have filed an answer asserting the following affirmative defenses: Plaintiff's claims are barred because one or more of the material obligations of the Note and Security Instrument have not been satisfied; Plaintiff's claims are barred by the equitable doctrine of waiver; Plaintiffs claims are barred by the waiver provisions contained in the deed of trust at issue in this lawsuit; any allegedly wrongful acts or omissions of Defendants, if and to the extent such acts and omissions occurred, were legally excused or justified; Plaintiff's claims are barred by the "one satisfaction" doctrine; Plaintiff's claims are barred by the "economic loss" doctrine; Plaintiff failed to mitigate or minimize her alleged damages; Defendants deny that all conditions precedent to a right of recovery have been satisfied; Plaintiffs claims are barred by the applicable statute of limitations; Plaintiffs claims are barred by the statute of frauds; Plaintiffs claims are barred by the doctrine of unclean hands and in pari delicto; and Plaintiff has failed to state a claim upon which relief may be granted; Defendants deny that any misrepresentation was made to Plaintiff and would also show that any representation made regarding the mortgage contract is required to be in writing to be effective and is inadmissible pursuant to the parol evidence rule; Fannie Mae is a Federal instrumentality and is not liable for unauthorized acts of third-parties; Any and all conduct or activity by Defendants alleged by Plaintiff conformed to any and all applicable state and federal statutes, codes, and regulations at all times relevant herein; Defendants assert the defense of bona fide error; Any award of pre-judgment interest is limited by the dates and amounts set forth in Chapter 304 of the Texas Finance Code and/or Chapter 41 of the Texas Civil practice & Remedies Code; Some or all of Plaintiffs claims and causes of action are barred, in whole or in part, by the doctrines of judicial estoppel, res judicata, and/or collateral estoppel; and, Defendant claim all offsets and credits available under Chapter 33 of the Texas Civil Practice & Remedies Code. Defendants filed a Counterclaim for Breach of Contract; Suit on the Note and for Equitable Subrogation.
4. On August 29, 2013, Defendants filed their motion for summary judgment on Plaintiffs causes of action and on their claims for Breach of Contract and Suit on the Note. Defendants' motion for summary judgment was re-set for hearing on January 7, 2013. The parties agreed that Plaintiffs response to Defendants' motion for summary judgment would be due on December 13, 2013.
5. Summary judgment is improper in this case because there are genuine issues of fact.
1. The following facts are incorporated from Plaintiffs Original Petition and Application for Temporary Restraining Order and Temporary Injunction ("Plaintiff's Original Petition"), a copy of which is attached hereto as Exhibit "A". These facts are verified, as demonstrated by the verification of Plaintiff Karen Moyer, which is attached to the Plaintiffs Original Petition.
2. The material facts in this case are simple and substantially not in dispute. Nevertheless, Ms. Moyer for months has been unable to get anyone at Seterus, or its predecessor, or McCarthy to focus on the facts and acknowledge their mistakes and correct the problems they have caused. Unless stopped by the Court, they now plan to wrongfully foreclose on Ms. Moyer's real property located 5025 Junius, Dallas, Dallas County Texas 75214 (the "Property") on May 1, 2012 between 10:00 and 4:00 p.m.
3. On January 8, 2004 Ms. Moyer refinanced the Property. The Home Equity lender was First Horizon Home Loan Corporation. Thereafter, upon information and belief, Fannie Mae acquired Ms. Moyer' loan. Seterus, or its predecessor IBM Lender, serviced the loan for Fannie Mae. Ms. Moyer paid her loan faithfully until she suffered a stroke. Even after Ms. Moyer suffered her stroke she maintained her home at 5025 Junius until it became clear that she would be unable to manage her home, at which time she moved into another residence until she rehabilitated to the point she could return to her home. When Ms. Moyer moved, she also had to consider the possibly of renting the Property, while she rehabilitated, or putting the Property on the market for sale, all considered in an attempt to mitigate her losses on the Property. When Ms. Moyer moved from the Property she informed Seterus, or its predecessor IBM Lender, that she would "winterize" the house and specifically told Seterus or IBM Lender to not do the "winterization". Ms. Moyer set about to have a contractor "winterize" the house, but when he arrived to do the work he discovered that Seterus, or its predecessor IBM Lender, had allegedly already done the "winterization". In fact there were stickers placed all over the house that reflected that the Property had been "winterized". Accordingly, Ms. Moyer did not have her contractor do the "winterization", depending on Seterus', or its predecessor's, representation that the Property had been "winterized". In fact the Property had not been properly "winterized" by Seterus, or IBM Lenders, because the water to the Property was left on.
4. Thereafter, in or about February of 2011, [almost 3 years ago], a pipe bust in the ceiling of an upstairs bedroom in the Property (during a Freeze in the North Texas region). The burst pipe ran for at least a day without the water being shut off As a result of the bust pipe the Property suffered severe water damage to portions of the upstairs, the stairs, the kitchen and downstairs areas. Ms. Moyer filed an insurance claim and sent the insurance check to Seterus, or its predecessor IBM Lender, pursuant to the terms of the Security Instrument. Ms. Moyer sent the insurance check to Seterus, or its predecessor IBM Lender, in or about May 2011, [almost 3 years ago]. Since receiving the insurance checks [almost 3 years ago], neither Seterus, nor its predecessor IBM Lender, have released the insurance proceeds to Ms. Moyer to repair the Property and protect her interest in the Property. Moreover, [it was not until February 13, 2013 (three years after the pipe burst at the Property) when this Court ordered the parties to appraise the Property that either IBM Lenders or Seterus made] an attempt to evaluate the Property in terms of their opinion of the economically feasible to repair the Property. Seterus (and IBM Lenders before them) and Fannie Mae are required to undertake these steps pursuant to the terms of the Security Instrument — either release the funds for repair or evaluate the Property as to their opinion of the economically feasible to repair the Property. Instead, they have done nothing but prevent Moyer from mitigating her damages and interfere with her attempts to protect her interest in the Property.
1. Although summary judgment is proper in any case where there is no genuine issue of material fact, this is not a case in which the court should grant summary judgment. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986).
2. Defendants who seek summary judgment on a plaintiff's cause of action must demonstrate the absence of a genuine issue of material fact by either (1) submitting summary judgment evidence that negates the existence of a material element of plaintiff's claim, or (2) showing there is no evidence to support an essential element of plaintiff's claim. J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1251 (1st Cir. 1996); see Celotex Corp., 477 U.S. at 322-23, 106 S. Ct. at 2552. Defendants cannot rely on conclusory statements to establish that plaintiff has not presented evidence on an essential element of her claim. Rather, defendants must demonstrate the absence of a genuine factual dispute. See Celotex Corp., 477 U.S. at 327, 106 S. Ct. at 2555. Only if defendants meet their burden is plaintiff required to respond by summary judgment proof to show a genuine issue of material fact. Fed. R. Civ. P. 56(e).
3. In determining whether there is a disputed issue of material fact that precludes summary judgment, the court must consider all evidence in the light most favorable to plaintiff as the nonmovant. Garcia v. Pueblo Country Club, 299 F.3d 1233, 1236-37 (10th Cir. 2002).
i. Defendants assert that Plaintiff has no need to mitigate her damages because Plaintiffs mortgage is governed by section 50(a)(6) of the Texas Constitution, asserting that as a result Plaintiff has no personal liability on the loan and that the mortgagee's sole recourse upon default is to purse a foreclosure sale of the Property. Defendants' position in this regard is without merit.
ii. First, Plaintiff does have a need to mitigate her damages, because Defendants have raised, as an affirmative defense, that Plaintiff has failed to mitigate her damages.
iii. Second, even the most passing glance at Plaintiffs Original Petition reflects that what Plaintiff seeks by her lawsuit is the ability to have the insurance proceeds that were paid on the claim relating to the bust pipe released to repair the Property and sell the Property. If the Property can be repaired and sold for an amount in excess of the amount owed to Defendants then not only will the Defendants have their loan repaid, but the Plaintiff will not suffer a loss on the Property (the loss being her damage) and thus Plaintiff will have mitigated her damages. Because the Property has appraised for $390,000.00, (See Exhibit "B" attached hereto and incorporated herein in for all purposes as if set forth in full), which is more than the $377,869.56 the Defendants claim is owing on the Property, if the Property can be repaired and sold for the appraised value (reflected in Exhibit "B") the Plaintiff will realize $12,130.44 as a gain, which will protect here interest in the Property and mitigate her loss on the Property and the damages claimed against the Defendants. Accordingly, because the Defendants have claimed that Plaintiff has failed to mitigate her damages (as an affirmative defense) they cannot now claim that she does not need to mitigate her damages, when circumstances exist that would allow her to protect her interest in the Property and to mitigate her damages, if the Property is repaired with the insurance money that the Defendants are holding without good reason.
i. Defendants assert that Plaintiff's claims fail because a neutral appraisal has shown that repair of the Property is not economically feasible. At the very least a genuine issue of material fact exists as to whether or not repair of the Property is economically feasible. The Property has appraised for $390,000.00, (See Exhibit "B" attached hereto and incorporated herein in for all purposes as if set forth in full), which is more than the $377,869.56 the Defendants claim is owing on the Property. If the Property can be repaired and sold for the appraised value (reflected in Exhibit "B") the Plaintiff will realize $12,130.44 as a gain, which will allow the Plaintiff to protect her interest in the Property and to mitigate her loss on the Property and the damages claimed against the Defendants. Thus, considering this evidence in the light most favorable to Plaintiff, as this Court must, there is a disputed issue of material fact, concerning whether or not repair of the Property is economically feasible, that precludes summary judgment.
i. Considering the circumstances of this case the Defendants were not authorized to hold the insurance proceeds, because there is a genuine issue of material fact as to whether or not repair of the Property is economically feasible, as set forth above. According to the Deed of Trust:
ii. In this case the Defendants have presented no evidence that the Lender [Defendants] and Borrower [Plaintiff] agreed in writing that the insurance proceeds relating to the loss on the Property would not be applied to restoration or repair of the Property. Thus, according to the Deed of Trust, the insurance proceeds that the Defendants are holding must be applied to restoration or repair of the Property.
iii. Next, as demonstrated above, a genuine issue of material fact exists as to whether or not repair of the Property is economically feasible. Thus, according to the Deed of Trust, the insurance proceeds that the Defendants are holding must be applied to restoration or repair of the Property if the restoration or repair is economically feasible.
iv. Finally, Defendants appear to assert that their security in the Property would be lessened in the situation where the borrower is in default
v. Accordingly, considering this evidence in the light most favorable to Plaintiff, as this Court must, because there is a disputed issue of material fact, concerning whether or not repair of the Property is economically feasible, and because that issue of material fact creates a genuine issue of material fact as to whether or not the Lender's security is lessened or adequately protected, there is a genuine issue of material fact as to whether or not the Defendants were authorized to hold the insurance proceeds thus, precluding Defendants' Motion for Summary Judgment on Plaintiff's Breach of Contract claim.
i. As Defendants correctly assert, in order to prevail on her claim for Breach of the Duty of Cooperation, Plaintiff must demonstrate that the Defendants hindered, prevented, or interfered with her ability to perform her duties under the contract. In this case that cannot be more clear. First, it is stipulated that the Plaintiff had a duty to either pay her monthly mortgage payments or to pay the loan off in full. Thus, the question becomes whether or not the Defendants hindered, prevented, or interfered with her ability to pay her loan off in full (because it is likewise clear that due to her health the Plaintiff was not able to maintain her monthly mortgage payments).
ii. Second, there is at least a genuine issue of material facts as to whether or not the Defendants hindered, prevented, or interfered with her ability to pay her loan off in full. As set forth above, there is a genuine issue of material fact as to whether or not the Defendants were authorized to hold the insurance proceeds, because there is a genuine issue of material fact as to whether or not repair of the Property is economically feasible, as set forth above. According to the Deed of Trust:
iii. Accordingly, considering this evidence in the light most favorable to Plaintiff, as this Court must, because there is a disputed issue of material fact, concerning whether or not repair of the Property is economically feasible, and because that issue of material fact creates a genuine issue of material fact as to whether or not the Lender's security is lessened or adequately protected, there is a genuine issue of material fact as to whether or not the Defendants were not authorized to hold the insurance proceeds which creates a genuine issue of material fact as to whether or not the Defendants hindered, prevented, or interfered with the Plaintiff's ability to pay her loan off in full, thus precluding Defendants' Motion for Summary Judgment on Plaintiff's Breach of the Duty of Cooperation claim.
i. Defendants assert, erroneously, that Plaintiff has failed to plead a viable cause of action against Defendants and show a substantial likelihood of success on the merits and a probable right of recovery. First, Plaintiff has demonstrated above that a genuine issue of material fact exists as to whether or not it is economically feasible to repair the Property, thus precluding summary judgment with regard to her causes of action for Breach of Contract and Breach of the Duty of Cooperation. Therefore, a genuine issue of material fact exists as to pleading a viable cause of action against Defendants.
ii. Likewise, as to "substantial likelihood of success on the merits" (Federal law) and "probable right of recovery" (Texas law) Plaintiff is not required to prove that she will ultimately prevail. See Abdul Wall v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985) and Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993). In this regard, as set forth above, considering the evidence in the light most favorable to Plaintiff, as this Court must, because there is a disputed issue of material fact, concerning whether or not repair of the Property is economically feasible, and because that issue of material fact creates a genuine issue of material fact as to whether or not the Lender's security is lessened or adequately protected there is a genuine issue of material fact as to whether or not the Defendants were authorized to hold the insurance proceeds and a genuine issue of material fact as to the amount of damages on Plaintiff's Breach of Contract and Breach of the Duty of Cooperation claims which demonstrates a genuine issue of material fact as to whether or not Plaintiff has a substantial likelihood of success on the merits of her case and probable right of recovery on her case, thus precluding Defendants' Motion for Summary Judgment on Plaintiffs application for a Temporary Restraining Order.
i. As set forth above, if the Property can be repaired and sold for an amount in excess of the amount owed to Defendants then not only will the Defendants have their loan repaid, but the Plaintiff will not suffer a loss on the Property (the loss being her damage) and thus Plaintiff will have mitigated her damages. Because the Property has appraised for $390,000.00, (See Exhibit "B" attached hereto and incorporated herein in for all purposes as if set forth in full), which is more than the $377,869.56 the Defendants claim is owing on the Property, if the Property can be repaired and sold for the appraised value (reflected in Exhibit "B") the Plaintiff will realize $12,130.44 as a gain, which will protect her interest in the Property and mitigate her loss on the Property and the damages claimed against the Defendants.
ii. Thus, considering this evidence in the light most favorable to Plaintiff, as this Court must, there is a disputed issue of material fact, concerning whether or not repair of the Property would sufficiently improve its value to permit the Plaintiff to sell the property for a profit and thereby pay off her indebtedness to the Defendants. Accordingly, in this regard Defendants' Motion for Summary Judgment must be denied.
A. Considering the circumstances of this case the Defendants were not authorized to hold the insurance proceeds, because there is a genuine issue of material fact as to whether or not repair of the Property is economically feasible, as set forth above. According to the Deed of Trust:
B. In this case the Defendants have presented no evidence that the Lender [Defendants] and Borrower [Plaintiff] agreed in writing that the insurance proceeds relating to the loss on the Property would not be applied to restoration or repair of the Property. Thus, according to the Deed of Trust, the insurance proceeds that the Defendants are holding must be applied to restoration or repair of the Property.
C. Next, as demonstrated above, a genuine issue of material fact exists as to whether or not repair of the Property is economically feasible. Thus, according to the Deed of Trust, the insurance proceeds that the Defendants are holding must be applied to restoration or repair of the Property if the restoration or repair is economically feasible.
D. Finally, Defendants appear to assert that their security in the Property would be lessened in the situation where the borrower is in default
E. Accordingly, considering this evidence in the light most favorable to Plaintiff, as this Court must, because there is a disputed issue of material fact, concerning whether or not repair of the Property is economically feasible, and because that issue of material fact creates a genuine issue of material fact as to whether or not the Lender's security is lessened or adequately protected, there is a genuine issue of material fact as to whether or not the Defendants were authorized to hold the insurance proceeds. Thus, a genuine issue of material fact exists as to whether or not the Defendants performed, tendered performance or were excused from performing under the contract(s) at issue in this lawsuit, a necessary element for the Defendants to prove in order to recover on their Breach of Contract claim. Therefore, because the Defendants have failed to prove a necessary element in their claim for Breach of Contract this court must deny Defendants' Motion for Summary Judgment on their Breach of Contract claim.
A. As Defendants correctly assert, in order to prevail on her claim for Breach of the Duty of Cooperation, Plaintiff must demonstrate that the Defendants hindered, prevented, or interfered with her ability to perform her duties under the contract. In this case that cannot be more clear. First, it is stipulated that the Plaintiff had a duty to either pay her monthly mortgage payments or to pay the loan off in full. Thus, the question becomes whether or not the Defendants hindered, prevented, or interfered with her ability to pay her loan off in full (because it is likewise clear that due to her health the Plaintiff was not able to maintain her monthly mortgage payments).
B. Second, there is at least a genuine issue of material facts as to whether or not the Defendants hindered, prevented, or interfered with her ability to pay her loan off in full. As set forth above, there is a genuine issue of material fact as to whether or not the Defendants were authorized to hold the insurance proceeds, because there is a genuine issue of material fact as to whether or not repair of the Property is economically feasible, as set forth above. According to the Deed of Trust:
C. Accordingly, considering this evidence in the light most favorable to Plaintiff, as this Court must, because there is a disputed issue of material fact, concerning whether or not repair of the Property is economically feasible, and because that issue of material fact creates a genuine issue of material fact as to whether or not the Lender's security is lessened or adequately protected, there is a genuine issue of material fact as to whether or not the Defendants were not authorized to hold the insurance proceeds which creates a genuine issue of material fact as to whether or not the Defendants hindered, prevented, or interfered with the Plaintiff's ability to pay her loan off in full. Thus, a genuine issue of material fact exists as to whether or not the Defendants performed, tendered performance or were excused from performing under the contract(s) at issue in this lawsuit, a necessary element for the Defendants to prove in order to recover on their Breach of Contract claim. Therefore, because the Defendants have failed to prove a necessary element in their claim for Breach of Contract this court must deny Defendants' Motion for Summary Judgment on their Breach of Contract claim.
A. As set forth above, the Defendants have failed to establish their entitlement to summary judgment on their Breach of Contract claim. Accordingly, the Defendants are not entitled to attorneys' fees on their claim for Breach of Contract.
A. Considering the circumstances of this case the Defendants were not authorized to hold the insurance proceeds, because there is a genuine issue of material fact as to whether or not repair of the Property is economically feasible, as set forth above. According to the Deed of Trust:
B. In this case the Defendants have presented no evidence that the Lender [Defendants] and Borrower [Plaintiff] agreed in writing that the insurance proceeds relating to the loss on the Property would not be applied to restoration or repair of the Property. Thus, according to the Deed of Trust, the insurance proceeds that the Defendants are holding must be applied to restoration or repair of the Property.
C. Next, as demonstrated above, a genuine issue of material fact exists as to whether or not repair of the Property is economically feasible. Thus, according to the Deed of Trust, the insurance proceeds that the Defendants are holding must be applied to restoration or repair of the Property if the restoration or repair is economically feasible.
D. Finally, Defendants appear to assert that their security in the Property would be lessened in the situation where the borrower is in default
E. Accordingly, considering this evidence in the light most favorable to Plaintiff, as this Court must, because there is a disputed issue of material fact, concerning whether or not repair of the Property is economically feasible, and because that issue of material fact creates a genuine issue of material fact as to whether or not the Lender's security is lessened or adequately protected, there is a genuine issue of material fact as to whether or not the Defendants were authorized to hold the insurance proceeds. Thus, a genuine issue of material fact exists as to whether or not the Defendants performed, tendered performance or were excused from performing under the contract(s) at issue in this lawsuit, a necessary element for the Defendants to prove in order to recover on their Suit on the Note claim. Therefore, because the Defendants have failed to prove a necessary element in their claim for Suit on the Note this court must deny Defendants' Motion for Summary Judgment on their Suit on the Note claim.
A. As Defendants correctly assert, in order to prevail on her claim for Breach of the Duty of Cooperation, Plaintiff must demonstrate that the Defendants hindered, prevented, or interfered with her ability to perform her duties under the contract. In this case that cannot be more clear. First, it is stipulated that the Plaintiff had a duty to either pay her monthly mortgage payments or to pay the loan off in full. Thus, the question becomes whether or not the Defendants hindered, prevented, or interfered with her ability to pay her loan off in full (because it is likewise clear that due to her health the Plaintiff was not able to maintain her monthly mortgage payments).
B. Second, there is at least a genuine issue of material facts as to whether or not the Defendants hindered, prevented, or interfered with her ability to pay her loan off in full. As set forth above, there is a genuine issue of material fact as to whether or not the Defendants were authorized to hold the insurance proceeds, because there is a genuine issue of material fact as to whether or not repair of the Property is economically feasible, as set forth above. According to the Deed of Trust:
C. Accordingly, considering this evidence in the light most favorable to Plaintiff, as this Court must, because there is a disputed issue of material fact, concerning whether or not repair of the Property is economically feasible, and because that issue of material fact creates a genuine issue of material fact as to whether or not the Lender's security is lessened or adequately protected, there is a genuine issue of material fact as to whether or not the Defendants were not authorized to hold the insurance proceeds which creates a genuine issue of material fact as to whether or not the Defendants hindered, prevented, or interfered with the Plaintiff's ability to pay her loan off in full. Thus, a genuine issue of material fact exists as to whether or not the Defendants performed, tendered performance or were excused from performing under the contract(s) at issue in this lawsuit, a necessary element for the Defendants to prove in order to recover on their Suit on the Note claim. Therefore, because the Defendants have failed to prove a necessary element in their claim for Suit on the Note this court must deny Defendants' Motion for Summary Judgment on their Breach of Contract claim.
A. As set forth above, the Defendants have failed to establish their entitlement to summary judgment on their Suit on the Note claim. Accordingly, the Defendants are not entitled to attorneys' fees on their claim for Suit on the Note.
1. Ms. Moyer intends to conduct discovery under Level 3 pursuant to Texas Rules of Civil Procedure.
1. Ms. Moyer is a resident of Dallas County, Texas. This action involves title to real estate located in Dallas County, Texas, whose address is 5025 Junius, Dallas, Dallas County, Texas 75214.
2. Federal National Mortgage Association ("Fannie Mae") is an association doing business in Dallas County, Texas, which may be served with process at its Southwestern Regional Office, International Plaza II, 14221 Dallas Parkway, Suite 1000, Dallas, TX 75254-2916
3. Seterus, Inc. ("Seterus") is a Delaware corporation doing business in Dallas County, Texas, which may be served by serving its registered agent for service of process, CT Corporation Systems, 350 North Saint Paul Street, Dallas, Texas 75201.
4. McCarthy, Holthus & Ackerman, LLP ("McCarthy") is a Texas Limited Liability Partnership doing business in Dallas County, Texas, which may be served by serving Melissa McKinney at McCarthy's principal office at 1255 West 15
1. Venue for this case is proper in Dallas County, Texas pursuant to Sections 15.002 and 15.011 of the Texas Civil Practices and Remedies Code.
1. The material facts in this case are simple and substantially not in dispute. Nevertheless, Ms. Moyer for months has been unable to get anyone at Seterus, or its predecessor, or McCarthy to focus on the facts and acknowledge their mistakes and correct the problems they have caused. Unless stopped by the Court, they now plan to wrongfully foreclose on Ms. Moyer's real property located 5025 Junius, Dallas, Dallas County Texas 75214 (the "Property") on May 1, 2012 between 10:00 and 4:00 p.m.
2. On January 8, 2004 Ms. Moyer refinanced the Property. The Home Equity lender was First Horizon Home Loan Corporation. Thereafter, upon information and belief, Fannie Mae acquired Ms. Moyer' loan. Seterus, or its predecessor IBM Lender, serviced the loan for Fannie Mae. Ms. Moyer paid her loan faithfully until she suffered a stroke. Even after Ms. Moyer suffered her stroke she maintained her home at 5025 Junius until it became clear that she would be unable to manage her home, at which time she moved into another residence until she rehabilitated to the point she could return to her home. When Ms. Moyer moved, she also had to consider the possibly of renting the Property, while she rehabilitated, or to putting the Property on the market for sale, all considered in an attempt to mitigate her losses on the Property. When Ms. Moyer moved from the Property she informed Seterus, or its predecessor IBM Lender, that she would "winterize" the house and specifically told Seterus or IBM Lender to not do the "winterization". Ms. Moyer set about to have a contractor "winterize" the house, but when he arrived to do the work he discovered that Seterus, or its predecessor IBM Lender, had allegedly already done the "winterization". In fact there were stickers placed all over the house that reflected that the Property had been "winterized". Accordingly, Ms. Moyer did not have her contractor do the "winterization", depending on Seterus', or its predecessor's, representation that the Property had been "winterized". In fact the Property had not been properly "winterized" by Seterus, or IBM Lenders, because the water to the Property was left on.
3. Thereafter, in or about February of 2011, almost 15 months ago, a pipe bust in the ceiling of an upstairs bedroom in the Property (during a Freeze in the North Texas region). The burst pipe ran for at least a day without the water being shut off. As a result of the bust pipe the Property suffered severe water damage to portions of the upstairs, the stairs, the kitchen and downstairs areas. Ms. Moyer filed an insurance claim and sent the insurance check to Seterus, or its predecessor IBM Lender, pursuant to the terms of the Security Instrument. Ms. Moyer sent the insurance check to Seterus, or its predecessor IBM Lender, in or about May 2011, almost 12 months ago. Since receiving the insurance checks almost 12 months ago, neither Seterus, nor its predecessor IBM Lender, have released the insurance proceeds to Ms. Moyer to repair the Property and protect her interest in the Property. Moreover, during these almost 12 months neither IBM Lenders nor Seterus has made an attempt to evaluate the Property in terms of their opinion of the economically feasible to repair the Property. Seterus (and IBM Lenders before them) and Fannie Mae are required to undertake these steps pursuant to the terms of the Security Instrument — either release the funds for repair or evaluate the Property as to their opinion of the economically feasible to repair the Property. Instead, they have done nothing but prevent Moyer from mitigating her damages and interfere with her attempts to protect her interest in the Property.
4. Nonetheless, Fannie Mae, Seterus and McCarthy have secured an Order to Proceed with Notice of Foreclosure Sale and Foreclosure Sale on February 3, 2012 which McCarthy noticed for foreclosure sale on May 1, 2012 at 10:00 a.m. Moreover, despite the fact that they have done nothing they are obligated to do under the terms of the Security Instrument; and, despite repeated efforts, since the Property was noticed for foreclosure on April 6, 2012, Fannie Mae, Seterus and McCarthy refuse to pull the Property from the foreclosure docket choosing instead to let the Property fall into a state of further disrepair and uninhabitability and further waste Moyer's interest in the Property.
1. Moyer incorporates by reference the allegations of sections (A) through (D) of this her Original Petition and Application for Temporary Restraining Order and Temporary Injunction.
2. Ms. Moyer has an enforceable contract with Fannie Mae, i.e., the Texas Home Equity Note and Texas Home Equity Security Instrument. Fannie Mae, through it agent and mortgage servicer Seterus, or its predecessor, and through McCarthy, has breached the Security Instrument by by refusing to either release the insurance proceeds for the repair of the Property — to allow Moyer to mitigate her damages; or, to determine whether, in their opinion, the Property is economically infeasible to repair. In essence Fannie Mae, through it agent and mortgage servicer Seterus, and its predecessor, are simply sitting on Moyer's insurance proceeds and allowing the Property to fall further into a state of disrepair. As a result the Property has been sitting uninhabitable since February of 2011. Fannie Mae, and its agents Seterus, or its predecessor and McCarthy's breaches have caused injury to Ms. Moyer in an amount to be determined by the Court.
1. Moyer incorporates by reference the allegations of sections (A) through (D) of this her Original Petition and Application for Temporary Restraining Order and Temporary Injunction.
2. Moyer is a consumer as defined by the Texas Deceptive Trade Practices Act ("DTPA"). Fannie Mae, has, committed violations of the DTPA by causing confusion or misunderstanding as to the goods or services provided in connection with the loan in question, representing that Seterus, or its predecessor's, services have benefits that they do not have, representing that the contract with Fannie Mae, confers or involves rights, remedies, or obligations that it does not have or involve, or that are prohibited by law. As a result Ms. Moyer has suffered damages in an amount to be determined by the Court.
1. Moyer incorporates by reference the allegations of sections (A) through (D) of this her Original Petition and Application for Temporary Restraining Order and Temporary Injunction.
2. Fannie Mae, through it agent and mortgage servicer Seterus, or its predecessor, has breached its duty of cooperation by refusing to either release the insurance proceeds for the repair of the Property — to allow Moyer to mitigate her damages; or, to determine whether, in their opinion, the Property is economically infeasible to repair. In essence Fannie Mae, through it agent and mortgage servicer Seterus, and its predecessor, are simply sitting on Moyer's insurance proceeds and allowing the Property to fall further into a state of disrepair. As a result the Property has been sitting uninhabitable since February of 2011. As a result Ms. Moyer has suffered damages in an amount to be determined by the Court.
1. Moyer incorporates by reference the allegations of sections (A) through (D) of this her Original Petition and Application for Temporary Restraining Order and Temporary Injunction.
2. Fannie Mae, through it agent and mortgage servicer Seterus, or its predecessor, have a fiduciary relationship that was created when the insurance proceeds from Moyer's claim on the Property were handed over to Seterus, or it predecessor. Fannie Mae, through it agent and mortgage servicer Seterus, and its predecessor, have breached their fiduciary duty by refusing to either release the insurance proceeds for the repair of the Property — to allow Moyer to mitigate her damages; or, to determine whether, in their opinion, the Property is economically infeasible to repair. In essence Fannie Mae, through it agent and mortgage servicer Seterus, and its predecessor, are simply sitting on Moyer's insurance proceeds and allowing the Property to fall further into a state of disrepair. As a result the Property has been sitting uninhabitable since February of 2011. As a result Ms. Moyer has suffered damages in an amount to be determined by the Court.
1. Moyer incorporates by reference the allegations of sections (A) through (`D) of this her Original Petition and Application for Temporary Restraining Order and Temporary Injunction.
2. Defendants are attempting to foreclose on Ms. Moyer' Property. If a TRO is not signed, Ms. Moyer will lose her Property. The harm sustained as set forth in the preceding paragraphs will continue and be irreparable, with Ms. Moyer having no adequate remedy at law, unless the Court restrains and enjoins Defendants from any and all actions that bar or inhibit Ms. Moyer' use and enjoyment and possession of the Property. The ownership of real estate is unique and irreplaceable, which makes it extremely difficult, if not impossible, to measure in monetary terms.
3. The permanent deprivation of title to and possession of a unique piece of real estate constitutes a sufficient injury to justify an injunction. There is no remedy at law that will give Ms. Moyer complete, final, and equal relief because damages alone will not restore Ms. Moyer' access to and possession of the Property. Further, Ms. Moyer' use, enjoyment, and possession of the Property should be enforced by a TRO and temporary injunction prohibiting Defendants from foreclosing on the Property which would result in irreparable halm to Ms. Moyer.
1. Moyer incorporates by reference the allegations of sections (A) through (D) of this her Original Petition and Application for Temporary Restraining Order and Temporary Injunction.
2. Ms. Moyer has been forced to retain the services of the undersigned attorney to represent her in this matter. Accordingly, in addition to all the relief requested herein, she also seeks to recover her attorney fees incurred in this case from Fannie Mae, Seterus and McCarthy.
1. Moyer incorporates by reference the allegations of sections (A) through (D) of this her Original Petition and Application for Temporary Restraining Order and Temporary Injunction.
2. All conditions precedent have been performed or have occurred by Texas Rule of Civil Procedure 54.
1. A temporary restraining order be issued without notice to the Defendants restraining the Defendants from directly or indirectly selling or attempting to sell the Property on Tuesday, May 1, 2012, or so posting or attempting to sell the property at any time thereafter until further orders of this Court;
2. That Defendants be cited to appear and show cause, and upon such hearing a temporary injunction be issued enjoining the Defendants from attempting to sell the Property until further order of this Court;
3. That Ms. Moyer be awarded all damages to which she is entitled;
4. That Ms. Moyer recover her attorney fees;
5. That Ms. Moyer be awarded her court costs; and
6. That Ms. Moyer be awarded such other and further relief to which she may be entitled.
