Appellate Judges

Update: A Texas Lawyer’s Personal Battle and Foreclosure Defense v Deutsche Bank National Trust Co and Ocwen Loan Servicing LLC

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 – Foster.

LIT COMMENTARY

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.

Judge Jolly

“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.

Appellate Brief

Appellee Brief

Appellant Reply Brief

LIT has attached the current schedule.

This appeal is set for a decision on Wednesday, January 27, 2021.

Foster continues

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.

See https://codes.findlaw.com/tx/civil-practice-and-remedies-code/civ-prac-rem-sect-65-041.html

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.

See https://scholar.google.com/scholar_case?case=13113454727176221607&q=substantial+likelihood+of+success&hl=en&as_sdt=4,44

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.

https://scholar.google.com/scholar_case?case=3185819599974130079&q=foster+v+deutsche+bank+national+trust+co&hl=en&as_sdt=3,44

–   Regina Nachael Howell Foster

The Fifth Circuit is All at Sea About Following the Law

Judge Jennifer Walker Elrod makes the right call here by way of dissent, applying common sense.  Unfortunately it does not help the seaman obtain the right financial compensation.

Three Items found at the Fifth Circuit; A Baseball Bat, a Mulligan and a Precedent

Honduran man caught illegally re-entering the U.S. from Mexico after 2012 deportation. Feds: His sentence should be enhanced as he was convicted in 2006 of beating his brother-in-law to death with a baseball bat in Missouri. Feds: His sentence should be enhanced as he was convicted in 2006 of beating his brother-in-law to death with a baseball bat in Missouri.
Fifth Circuit (panel): Our precedent requires us to declare that such a crime is not one of violence, so a sentence enhancement is inappropriat

Are You Bloody Kidding Thrice? And a Caution

In this particular Opinion, it’s spits out that the litigant is not going to receive free filing due to being IFP, but instead the Koncaks’ are seen as filing “not in good faith” and hence frivilous.

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.

Update: A Texas Lawyer’s Personal Battle and Foreclosure Defense v Deutsche Bank National Trust Co and Ocwen Loan Servicing LLC
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Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

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