LIT received the following communications from Ms. Foster and we’re providing the content in this article for those that may find it informative. For background, we suggest reading this 2016 Memorandum and Opinion and the subsequent appeal to the Fifth Circuit and their Published Opinion.
“The 5th Circuit is indeed trying to ignore the controlling precedent in Texas regarding the deed of trust as nothing more than an appurtenance to the promissory note.
See Pope V. Beauchamp.
The matter is on appeal in the 7th court of appeals”
– R. N. ‘Nachael’ Foster.
LIT has attached the current schedule.
This appeal is set for a decision on Wednesday, January 27, 2021.
Under Tex. Civ. Prac. Rem. 65.041
A court may not require an applicant for a temporary restraining order to execute a bond to the adverse party before the order may issue if:
(1) the applicant submits an affidavit that meets the requirements of Section 65.043 to the court; and
(2) the court finds that the order is intended to restrain the adverse party from foreclosing on the applicant’s residential homestead.
The sole issue before a trial court in a temporary injunction hearing is whether the applicant may preserve the status quo, pending trial on the merits. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18, 21 (Tex.App.-Houston [1st Dist.] 1998, pet. dism’d).
To be entitled to a temporary injunction, an applicant must plead a cause of action, show a probable right to recover on that cause of action, and show a probable injury in the interim. Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968); T-N-T Motorsports, 965 S.W.2d at 23.
A probable right of success on the merits is shown by alleging a cause of action and presenting evidence that tends to sustain it. T-N-T Motorsports, 965 S.W.2d at 23-24. Probable injury includes elements of imminent harm, irreparable injury, and no adequate remedy at law for damages. Id. at 24.
But the 5th has held that if you get a TRO then you have failed to state a cause of action in Texas.
The case has been blindly followed at least 27 times.
– Regina Nachael Howell Foster
On a secondary note, we see the Fifth’s increase in warnings to pro se homeowner cases is on the uptick in 2020/21. LIT notes a couple of earlier appeals relative to a bankruptcy at the Fifth Circuit earned Ms. Foster the label of filing frivolous IFP appeal(s). e.g cases, 15-10778 and 15-10278, both dated March30, 2016. The 3-panel: Judges Higginbotham, Elrod and Southwick.
This was before the above foreclosure appeal and opinion, which was released Feb. 8, 2017.
A Friday Mornin’ Update from LIT re https://t.co/mjDEggRqhs : @AGBecerra @kyoag50 @AlejandroGarcia @kyoag @NewYorkStateAG @WisDOJ @MIAttyGen @NevadaAG @attorneygeneral @KellyAyotte @JoeBiden @GovMLG @NewMexicoOAG @OhioAG @AGAshleyMoody @AGKarlRacine @MinJusticeEn @PScotlandCSG https://t.co/1df6vld6XN pic.twitter.com/duGJ5nW2jL
— LawsInTexas (@lawsintexasusa) January 8, 2021