Svetlana Pestova and Luis Escobar aka Luis Vogar Sent to Mediation with Eric Carter

COMES NOW, LJC FINANCIAL LLC, as Defendant and Counter-Plaintiff (“LJC”) and files its Original Answer and Counterclaim against Plaintiffs and Counter-Defendants,

SVETLANA A. PESTOVA (“Pestova”)

and

LUIS V. ESCOBEDO (“Escobedo”)

and in support

thereof, will show the Court as follows:

I.                   GENERAL DENIAL

1.                  Pursuant to Tex. R. Civ. P. 92, Defendant, LJC enters a general denial to the allegations contained in Plaintiffs’ Original Petition (and all amendments thereto) and demands strict proof thereof.

II.                SPECIFIC DENIALS

2.                  LJC specifically denies that all conditions precedent for recovery by Plaintiffs have occurred or were performed.

III.             AFFIRMATIVE DEFENSES

3.                  LJC affirmatively asserts that Plaintiffs fail to state any claim upon which relief may be granted.

4.                  LJC affirmatively asserts that Plaintiffs’ claims against LJC are barred, in whole or in part, because Plaintiff Pestova failed to comply with the terms of the contract with LJC that is the subject of this litigation.

5.                  LJC affirmatively asserts that Plaintiffs’ claims are barred, in whole or in part, due to Plaintiffs’ failure to mitigate damages.

6.                  LJC affirmatively asserts that any damages allegedly sustained by Plaintiffs were caused by persons for whose conduct LJC was not responsible.

7.                  LJC affirmatively asserts that the conduct of LJC was not the proximate and/or producing cause of any injury or damage sustained by Plaintiffs.

8.                  LJC affirmatively asserts that Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs’ own acts and/or omissions caused its injury, if any.

9.                  LJC affirmatively asserts that Plaintiffs’ claims are barred, in whole or in part, under the doctrine of proportionate responsibility pursuant to Tex. Civ. Prac. & Rem. Code §§33.001 et. seq.

10.              LJC affirmatively asserts that Plaintiffs’ claims are barred, in whole or in part, by the doctrines of laches and unclean hands and Plaintiffs’ unjust enrichment.

11.              LJC affirmatively asserts that Plaintiffs’ claims are barred, in whole or in part, by the doctrines of waiver and estoppel, expressed and implied, and estoppel by deed.

12.              LJC affirmatively asserts that Plaintiffs’ claims are barred, in whole or in part, to the extent that Pestova expressly waived demand, presentment, dishonor, notice of dishonor, notice of protest, protest, notice of acceleration or intent to accelerate.

13.              LJC affirmatively asserts that Plaintiffs’ claims are barred, in whole or in part, due to LJC’s right to offset/setoff.

14.              LJC affirmatively asserts that Pestova breached the contract at issue with LJC.1

15.              LJC affirmatively asserts that Pestova as grantor under the terms of the applicable Deed of Trust at issue, expressly waived, inter alia, the benefit of all present and future laws providing for any appraisement before sale of any property covered by the Deed of Trust.

16.              LJC affirmatively asserts that, pursuant to the express terms of the Note at issue and at law, written notice of default by LJC is considered and deemed given when deposited in the U.S. mail, postage prepaid, certified mail, return receipt requested, addressed to Pestova, at the most recent address(es) for Pestova in LJC’s records, and that all required notices were duly served pursuant to the Note and at law.2

17.              LJC affirmatively asserts that, pursuant to the express terms of the Deed of Trust at issue and at law, LJC, as beneficiary, would show that service to Pestova of written notice of proposed sale of the Property at issue by certified mail is considered and deemed completed upon deposit of the notice in a post office or official depository under the care and custody of the U.S. Postal Service, addressed to Pestova at the most recent address(es) for Pestova as shown in LJC’s records, and that all required notices were duly served pursuant to the Deed of Trust and at law.

18.              LJC affirmatively asserts, though without obligation to do so, that all required notices were delivered to Pestova, including without limitation, notice of the foreclosure sale at

1 Dobbins v. Redden, 785 S.W.2d 377, 378 (Tex. 1990)

(“It is a well established rule that ‘a party to a contract who is himself in default cannot maintain a suit for its breach.”)

(quoting Gulf Pipe Line Co. v. Nearen, 135 Tex. 50, 56, 138 S.W.2d 1065, 1068 (1940)).

2 Texas Property Code § 51.002’s notice requirements provide “a minimum level of protection for the debtor, and provide for only constructive notice of the foreclosure.”

Gossett v. Fed. Home Loan Mortg. Corp., 919 F. Supp. 2d 852, 859-60 (S.D. Tex. 2013) (quoting Onwuteaka v. Cohen, 846 S.W.2d 889, 892 (Tex. App.—Houston [1st Dist.] 1993, no pet.).

Thus, “[s]ervice of a notice under [§ 51.002] by certified mail is complete when the notice is deposited in the United States mail, postage prepaid and addressed to the debtor and the debtor’s last known address.”

Tex. Prop. Code § 51.002(e) (emphasis added).

“Actual receipt of the notice is not necessary.”

WMC Mortg. Corp. v. Moss, No. 01-10-00948-CV, 2011 Tex. App. LEXIS 3853, at *23 (Tex. App.—Houston [1st Dist.] May 19, 2011, no pet.).

issue and a copy of the Notice of Substitute Trustee’s Sale, that Pestova failed to take any action to properly stop or delay the properly posted foreclosure sale, and thereby waived obligation to the foreclosure sale.

19.              LJC affirmatively asserts that pursuant to the express terms of the Deed of Trust, the acting trustee/substitute trustee had an absolute contractual and legal right to sell the Property at issue at public sale, and LJC, as beneficiary, had the right to become the purchaser at any such sale as highest bidder and, after paying or accounting for all costs of said sale(s), to credit the amount of the bid upon the amount of indebtedness owing.

20.              LJC affirmatively asserts that the Substitute Trustee’s Deed for the foreclosure sale at issue is prima facie evidence that all requirements for the subject foreclosure were complied with, and prima facie evidence of service of all required notices.

21.              LJC affirmatively asserts that Plaintiffs cannot meet their burden to show the legal requirements for a claim for wrongful foreclosure: a defect in the foreclosure sale proceeding, a grossly inadequate selling price, and a causal connection between the defect and the grossly inadequate selling price.3

22.              LJC affirmatively asserts that all affirmative defenses are also specific denials.

DEFENDANT, LJC FINANCIAL LLC’S ORIGINAL COUNTERCLAIM

COMES NOW, LJC FINANCIAL LLC, as Defendant and Counter-Plaintiff (“LJC”) and files its Original Counterclaim against Plaintiffs and Counter-Defendants, SVETLANA A. PESTOVA (“Pestova”) and LUIS V. ESCOBEDO (“Escobedo”) (collectively, “Counter- Defendants”) and in support thereof, will show the Court as follows:

3 Charter Nat’l Bqnk-Houston v. Stevens, 781 S.W.2d 368, 371 (Tex. App.—Houston [14th Dist.] 1989, writ denied);

see also Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135, 139 (Tex. App.—Corpus Christi 2008, no pet.).

I.                   DISCOVERY CONTROL PLAN

1.                  Pursuant Tex. R. Civ. P. 47, LJC Financial seeks monetary relief over $250,000 or less and non-monetary relief. The damages sought are within the jurisdictional limits of the Court.

II.                PARTIES

2.                  Counter-Defendant, Svetlana A. Pestova, is a resident of Harris County, Texas and can be served with a copy of this counterclaim pursuant to Tex. R. Civ. P. 21 and 21a at 1400 Hermann Drive #14, Houston, Texas 77004, svetlanapestovaofhouston@gmail.com.

3.                  Counter-Defendant, Luis V. Escobedo, is a resident of Harris County, Texas and can be served with a copy of this counterclaim pursuant to Tex. R. Civ. P. 21 and 21a at 1400 Hermann Drive #14, Houston, Texas 77004, luisvogar@gmail.com.

III.             JURISDICTION AND VENUE

4.                  The amount in controversy is within the jurisdictional limits of this Court.

5.                  Venue is proper in this Court pursuant to Tex. Civ. Prac. & Rem. Code § 15.062 as the main action filed by Pestova is pending in this Court.

IV.             FACTUAL BACKGROUND

A.        The Note, Deed of Trust, and Guaranty dated October 28, 2022 in favor of LJC related to the Property at 7802 Ford Street, Houston, Texas 77012.

6.                  At all times relevant, LJC was and is the holder and owner of a promissory note dated October 28, 2022, in the original principal amount of $154,000.00, (the “Note”). 4

The Note was duly executed and delivered by Pestova as Borrower. A true and correct copy of the Note is attached hereto as Exhibit 1 and is incorporated by reference herein.

Pestova obtained this loan related to the investment property at 7802 Ford Street, Houston, Texas 77012.

4 The Note, Deed of Trust, and Guaranty are collectively referred to as the “Loan Documents.”

7.                  The stated annual interest rate in the Note for unpaid principal is 12% per annum.

See Exhibit 1. Pursuant to the Note: Installments in the amount of accrued and unpaid interest only shall be due and payable, the first such installment to be due and payable on December 1, 2022, with like installments to be due and payable on the first day of each month thereafter, until October 28, 2023 (the “Maturity Date”), when all remaining principal plus accrued and unpaid interest shall be due and payable. Id.

8.                  The Note was secured by a Deed of Trust dated October 28, 2022 (“Deed of Trust”). A true and correct copy of the Deed of Trust is attached hereto as Exhibit 2 and is incorporated by reference herein. Under the Deed of Trust, Borrower granted LJC a deed of trust lien against the following real estate (“Property”):

Lot 1, Block 1, BONBROOK PLANTATION NORTH SECTION SEVEN, an Addition in Fort Bend County, Texas, according to the Map or Plat recorded in Plan No. 20130124, Map Records of Fort Bend County, Texas, which currently has the address of 7802 Ford Street, Houston, Texas 77012.

9.                  Additionally, at all times relevant, LJC was and is the holder of a Guaranty Agreement dated October 28, 2022 (the “Guaranty”). Under the Guaranty, Pestova, as Guarantor, personally and unconditionally guaranteed the performance of all obligations under the Note and Deed of Trust.

A true and correct copy of the Guaranty is attached hereto as Exhibit 3 and is incorporated by reference herein.

C.  Pestova defaulted under the Loan Documents.

LJC duly posted the Property for foreclosure on September 5, 2023 and duly sent out all required notices under the Deed of Trust and Texas Property Code.

10.              Pestova defaulted under the Note, Deed of Trust, and Guaranty (the “Loan Documents”).

First, Pestova failed to pay the indebtedness under the Note when due.

Second, Pestova failed to pay the property taxes and insure the Property as required by the Deed of Trust, which caused LJC to pay for the force placed insurance and the taxes.

Moreover, Pestova violated the Deed of Trust (which states, in relevant part:

“Borrower shall not destroy, damage or impair the Property …”) by building an addition to the Property that encroaches upon the land owned by CenterPoint.

On November 17, 2023, CenterPoint recorded a Notice of Unlawful Encroachment (“Encroachment Notice”) as Document No. RP-2023-439626 of the Official Public Records of Harris County, Texas. A true and correct copy of the Encroachment Notice is attached as Exhibit 4.

11.              As a result of these defaults, LJC duly posted the Property for foreclosure on Tuesday, January 2, 2024, between the hours of 10:00 A.M. and 1:00 P.M.

True and correct copies of the required notices, which were duly posted and duly sent to Pestova by certified mail, return receipt requested and by first class mail are collectively attached as Exhibit 5 and incorporated by reference herein.5

D.  On January 2, 2024, Pestova and Escobedo filed this lawsuit pro se and obtained a signed TRO at 10:37 a.m. However, they failed to pay the $3,000 bond so the TRO never took effect.

12.              On January 2, 2024, Pestova and Escobedo filed this lawsuit pro se. At 10:37 a.m. on January 2, 2024, Judge Jaclanel McFarland signed a Temporary Restraining Order (“TRO”)6 enjoining the foreclosure sale of the Property and setting the temporary injunction hearing on January 11, 2024.

The Order provided that the TRO would not take effect until Counter- Defendants deposited with the Clerk a $3,000 bond.

Counter-Defendants failed to pay the $3,000 bond.

5 Texas Property Code § 51.002’s notice requirements provide “a minimum level of protection for the debtor and provide for only constructive notice of the foreclosure.”

Gossett v. Fed. Home Loan Mortg. Corp., 919 F. Supp. 2d 852, 859-60 (S.D. Tex. 2013) (quoting Onwuteaka v. Cohen, 846 S.W.2d 889, 892 (Tex. App.—Houston [1st Dist.] 1993, no pet.).

Thus, “[s]ervice of a notice under [§ 51.002] by certified mail is complete when the notice is deposited in the United States mail, postage prepaid and addressed to the debtor and the debtor’s last known address.”

Tex. Prop. Code § 51.002(e) (emphasis added).

“Actual receipt of the notice is not necessary.” WMC Mortg. Corp. v. Moss, No. 01-10-00948-CV, 2011 Tex. App. LEXIS 3853, at *23 (Tex. App.—Houston [1st Dist.] May 19, 2011, no pet.).

6 Counter-Plaintiff requests that the Court take judicial notice of the pleadings and papers on file with the Court.

Thus, the TRO never took effect.

On January 12, 2024, Counter-Defendants filed a Motion to extend the TRO and the temporary injunction hearing.

This Motion was denied by the Court on January 17, 2024.

E.  On January 2, 2024, LJC purchased the Property at the foreclosure sale and now owns the Property.

Pestova and Escobedo are trespassing on the Property and are preventing LJC from removing the encroachment.

13.              On January 2, 2024, LJC was the highest bidder at foreclosure sale of the Property and received a Substitute Trustee’s Deed conveying the Property to LJC.

A true and correct copy of the Substitute Trustee’s Deed is attached as Exhibit 6. The Substitute Trustee’s Deed has been recorded as RP-2024-22275 in the Official Public Records of Harris County, Texas.

14.              On March 7, 2024, Escobedo was found on the Property without LJC’s permission.

Escobedo prevented LJC’s property manager from accessing the Property.

Escobedo falsely claimed that the TRO stopped the foreclosure.

15.              Counter-Defendants must leave the Property so that LJC can remove the encroachment.

On February 1, 2024, LJC was served with a 30-day demand for the removal of the encroachment by CenterPoint’s counsel.

V.                BREACH OF CONTRACT

16.              LJC incorporates the previous facts in paragraph 6-15 herein by reference.

17.              Defendant Pestova is liable to LJC for breach of contract under the Deed of Trust, which states, in relevant part: “Borrower shall not destroy, damage or impair the Property …” Pestova has damaged and impaired the Property by building the addition that encroaches upon CenterPoint’s land.

18.              To recover for breach of contract, a plaintiff must show: (i) the existence of a valid contract; (ii) that the plaintiff performed or tendered performance; (iii) that the defendant breached the contract; and (iv) that the plaintiff suffered damages because of the defendant’s breach.

Parker Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 72 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).

19.              The above elements of the cause of action for breach of contract have been met.

LJC will show the Court that:

(1) a valid contract, i.e., the Deed of Trust, exists between LJC and Pestova;

(2) that LJC performed or tendered performance under the Deed of Trust by extending the loan with the Property as collateral for the loan;

(3) that Pestova breached the Deed of Trust by building the addition to the Property that encroaches upon CenterPoint’s land and refusing to remove the encroachment;

and

(4) that LJC has sustained damages as a result of Pestova’s breach.

VI.             ENFORCEMENT OF GUARANTY

20.              LJC incorporates the previous facts in paragraph 6-15 herein by reference.

21.              Additionally and/or alternatively, LJC seeks to enforce the Guaranty against Pestova, as Guarantor.

The Guaranty states that Pestova unconditionally guarantees the obligations under the Deed of Trust.

Since Pestova is liable under the Deed of Trust for damage and impairment to the Property caused by the encroachment, Pestova is also liable under the Guaranty.

22.                In order to recover on a breach of a guaranty agreement, the plaintiff must prove:

(1) the existence and ownership of the guaranty agreement;

(2) the terms of the underlying contract by the holder;

(3) the occurrence of the conditions upon which liability is based;

and

(4) the failure or refusal to perform the promise by the guarantor.

Byrd v. Estate of Nelms, 154 S.W.3d 149, 157 (Tex. App.—Waco 2004).

23.              The above elements of the cause of action for breach of a guaranty agreement have been met. LJC will show the Court that:

(1) it is the owner of the Guaranty that was formed by and between LJC, on one hand, and Pestova, on the other hand, on October 28, 2022;

(2) the terms of the underlying contract, i.e., the Note and Deed of Trust signed by Pestova on October 28, 2022;

(3) Pestova’s breach of the Deed of Trust by building the addition to the Property that encroached upon CenterPoint’s land;

and

(4) Pestova’s failure or refusal to remove the encroachment and/or pay all losses to LJC caused by the encroachment.

VII.          DECLARATORY JUDGMENT

24.              LJC incorporates the previous facts in paragraph 6-15 herein by reference.

25.              Additionally and/or alternatively, pursuant to the Texas Uniform Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code § 37.001 et seq. (“UDJA”), LJC seeks a declaratory judgment as to the rights of the parties concerning the validity of the January 2, 2024 Substitute Trustee’s Deed.

See Exhibit 6.

26.              Pursuant to Tex. Civ. Prac. & Rem. Code § 37.004(a), a person interested under a deed … may have determined any question of construction or validity arising under the instrument

… and obtain a declaration of rights, status, or other legal relations thereunder.”

27.              Among other things, Priority seeks the following declarations:

(i) that the January 2, 2024 foreclosure sale of the Property was proper;

(ii) that the January 2, 2024 Substitute Trustee’s Deed is valid and enforceable;

and

(iii) that LJC is the rightful owner and titleholder to the Property with the right to immediate possession of the Property.

VIII.       TRESPASS TO REAL PROPERTY

28.              LJC incorporates the previous facts in paragraph 6-15 herein by reference.

29.              Counter-Defendants are liable to LJC for trespass to LJC’s real property. LJC will show that

(i) LJC owns or has a lawful right to possess real property;

(ii) Counter-Defendants entered LJC’s land and the entry was physical, intentional, and voluntary;

and

(iii) Counter- Defendants’ trespass caused injury to LJC.

See Wilen v. Falkenstein, 191 S.W.3d 791 (Tex. App.— Fort Worth 2006, pet. denied).

30.              LJC seeks all damages caused by Counter-Defendants’ trespass to its Property.

IX.             AGENCY OR RESPONDEAT SUPERIOR

31.              Whenever in this petition it is alleged that a Counter-Defendants did, or failed to do, any act, thing, and/or omission, it is meant that Counter-Defendants themselves or their agents, officers, servants, employees, vice principals, or representatives either did or failed to do such act, thing, and/or omission, and it was done

(1) with the full authorization or ratification of Counter- Defendants;

(2) in the normal routine, course, and scope of the agency or employment of Counter- Defendants or its agents, officers, servants, employees, vice principals, or representatives;

(3) and/or with actual and/or apparent authority of Counter-Defendants.

X.                APPLICATION FOR TEMPORARY INJUNCTION AND PERMANENT INJUNCTION

32.              LJC incorporates the previous facts in paragraph 6-15 herein by reference.

33.              LJC seeks an Order that compels and enjoins Counter-Defendants and anyone acting in concert with them, from entering, intruding, and/or encroaching upon the Property.

34.                  To obtain a temporary injunction, a party must usually plead and prove the following elements:

(1) a cause of action;

(2) a probable right to relief;

and

(3) a probable, imminent and irreparable injury in the interim.

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).

Plaintiff has satisfied this burden.

a.               Cause of Action—As shown by the facts and supporting evidence attached to this petition, Plaintiff has pled claims for breach of contract and trespass stemming from Counter-Defendants’ wrongful conduct described supra.

b.              Probable Right of Recovery—Plaintiff has a probable right of recovery because the evidence clearly shows Pestova’s breach of the Deed of Trust and Pestova and Escobedo’s trespass to LJC’s Property as described above.

c.               Probable Injury—Probable injury includes elements of imminent harm, irreparable harm and a lack of adequate remedy at law.

Surko Enters., Inc. v. Borg-Warner Acceptance Corp., 782 S.W.2d 223, 225 (Tex. App.—Houston [1st Dist.] 1989, no writ).

An injury is irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard.

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).

It is not enough that there is some remedy at law, but that such remedy must be plain, adequate, or as practical and efficient to the ends of justice and its prompt administration as the remedy at equity.

Baucum v. Texan Oil Corp., 423 S.W.2d 434, 440-41 (Tex. Civ. App.—El Paso 1967, writ ref’d n.r.e.).

The remedy at law must be practical, available and effectual. Id

35.                  LJC has a probable, imminent injury because the Property is still encroaching upon CenterPoint’s land and LJC is being prevented from removing the encroachment due to Counter- Defendants’ refusal to vacate the Property.

Time is of the essence to remove the encroachment which constitutes a trespass onto CenterPoint’s land.

36.                  LJC is willing to post a bond prior to the issuance of the injunctive relief requested herein to further mitigate any potential harm to Counter-Defendants.

37.                  LJC requests that a hearing be set on its Application for Temporary Injunction and that, following the hearing, Counter-Defendants’ conduct be compelled and enjoined as described above pending a trial on the merits, and following a trial on the merits, that a permanent injunction be entered as part of the Court’s judgment in this cause.

XI.             CONDITIONS PRECEDENT

38.              All conditions precedent to LJC’s recovery have occurred or have been performed.

XII.          RULE 193.7 NOTICE

39.              Pursuant to Texas Rule of Civil Procedure 193.7, LJC may enter into evidence at trial or any other proceeding during the pendency of this matter all documents produced to LJC in response to discovery requests.

XIII.       PRAYER

40.                  Defendant and Counter-Plaintiff, LJC FINANCIAL, LLC respectfully prays for the following relief against Plaintiffs and Counter-Defendants, SVETLANA A. PESTOVA and LUIS V. ESCOBEDO as follows:

a.                   A temporary injunction, compelling and enjoining Counter-Defendants’ conduct as requested above;

b.                  A permanent injunction, after trial on the merits, as requested above,

c.                   Declaratory relief, as requested above,

Damages within the jurisdictional limits of the Court,

d.                  Reasonable and necessary attorney’s fees in this action and appellate attorney’s fees, and that same be taxed as costs and ordered paid directly to LJC’s attorney, who may enforce the Order for fees in her own name; and

e.                   Such other and further relief to which LJC may be entitled at law or in equity.

Respectfully submitted, INVICTA LAW FIRM

By:
Alicia M. Matsushima
Texas Bar No. 24002546
1923 Washington Ave. Ste. 2275
Houston, Texas 77007
(713) 955-4559 Tel.
alicia@invictalawfirm.com

ATTORNEY FOR PLAINTIFF, LJC FINANCIAL, LLC

VERIFICATION

STATE OF TEXAS                § COUNTY OF HARRIS         §

My name is Jerry Cohen. I am over the age of 18 and am competent to testify and make this Declaration. The factual statements in paragraphs 6-15 of Plaintiff’s Original Petition are within my personal knowledge by virtue of my position as the manager of LJC Financial, LLC and are true and correct.

My name is Jerry Cohen and my address is LJC Financial, LLC, P.O. Box 273395, Houston, Texas 77277, United States of America. I declare under penalty of perjury that the above is true and correct.

Executed in Harris County, State of Texas, on the  14TH day of March, 2024.

Jerry Cohen,
Manager, LJC Financial, LLC