                                                                                                        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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