Preview
6/14/2023 3:29 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 76621926
2023-36828 / Court: 270 By: Monica Jackson
Filed: 6/14/2023 3:29 PM
CAUSE NO.
JENNIFER PITTSFORD SELZER IN THE DISTRICT COURT
Plaintiff,
Vv OF HARRIS COUNTY, TEXAS
MILL MAN STEEL, INC.
Defendant. th JUDICIAL DISTRICT
VERIFIED EMERGENCY APPLICATION TO EXPUNGE LIS PENDENS AND FOR
DAMAGES AND FEES UNDER TEX. CIV. PRAC. & REM. CODE CHAPTER 12.
COMES NOW Jennifer Pittsford Selzer, and files this emergency application to expunge
an improper /is pendens and for damages and fees under TEX. CIV. PRAC. & REM. CODE CHAPTER
12, and, in support thereof, respectfully shows the Court the following
SUMMARY ARGUMENT
1 The Court should order the expungement of an improper /is pendens clouding title
to plaintiff Jennifer Pittsford Selzer’s residence and homestead on an emergency, expedited
basis. The Court should expunge the notice of /is pendens if the Court determines that
1 The pleading upon which the notice is based does not contain a real property
claim;
i The claimant fails to establish by a preponderance of the evidence the
probable validity of the real property claim; or
iti The person who filed the notice of /is pendens failed to serve notice on each
party with an interest in the property within three days of filing the notice.
TEX. PROP. CODE §§ 12.007-12.0071 and 41.002; see also Tex. Const. art. XVI, § 50; Tex. Prop.
Code §§ 12.007(d) and 41.002; Laster v. First Huntsville Properties Co., 826 S.W.2d 125 (Tex
1991); Jordan v. Hagler, 179 §.W.3d 217 (Tex. App.—Fort Worth 2005, no pet.).
2 Mill Man Steel, Inc. has filed a lawsuit against Ms. Selzer’s husband; Ms. Selzer
is not a party to that lawsuit. In conjunction with the lawsuit, which seeks recovery only for
breach of a commercial contract and has nothing to do with Ms. Selzer’s Homestead, Mill
Man Steel, Inc. filed an improper notice of Lis Pendens against Ms. Selzer’s Homestead. Mill
Man’s attorney has ignored all legal precedent in a tactic designed to cause financial injury to
Ms. Selzer’s husband (and in the process is damaging Ms. Selzer). Mill Man’s attorney has
refused requests to release the Lis Pendens. To make matters worse, Ms. Selzer has a current and
existing contract to sell her homestead by June 20" and a contract to purchase a new home
following the sale of her homestead, and both transactions are at risk of falling through. As a
matter of law and, certainly, in the interests of equity, Mill Man cannot maintain a Lis Pendens
on Ms. Selzer’s homestead, and Ms. Selzer requests that the Court enter an order immediately
expunging the Lis Pendens.
PARTIES
3 Plaintiff is Jennifer Pittsford Selzer (“Ms. Selzer”), an individual residing in
Harris County, Texas.
4 Defendant is Mill Man Steel, Inc. (“Mill Man”), a Colorado corporation doing
business in Texas that may be served with process by personal service on its registered agent,
Neil Yoder, at 5580 Sapp Road, Conroe, Texas 77304.
JURISDICTION & VENUE
5 The Court has jurisdiction over the controversy because it relates to interests in
and title to real property situated within Harris County, Texas, and because damages are above
the minimum jurisdictional limits of the Court.
6 Venue is proper in Harris County, Texas, under Texas Civil Practice & Remedies
Code § 15.001 because this action involves real property located in Harris County.
CONDITIONS PRECEDENT
7 Pursuant to Tex. R. Civ. P. 54, all conditions precedent to Plaintiff's claims for
relief have been performed or have occurred.
Facts
8 On or about July 19, 2022, Ms. Selzer and her husband purchased certain real
property and improvements located at 12903 Taylorcrest Road, Houston, Texas 77079, which is
more particularly described as follows
LOT 17, BLOCK 6, MEMORIAL PLAZA, SECTION 1, ACCORDING TO THE
MAP OR PLAT THEREOF, RECORDED IN VOLUME 49, PAGE 74, OF THE
MAP RECORDS OF HARRIS COUNTY TEXAS
(the “Homestead”). See Exhibit A, General Warranty Deed recorded at RP-2022-373955 in the
Real Property Records of Harris County, Texas on July 20, 2022.
9 The Homestead has been Ms. Selzer’s sole residence and homestead since she
purchased it in July 2022.
10. On or about April 26, 2023, Ms. Selzer and her husband executed a TREC earnest
money contract to sell the Homestead (the “Taylorcrest Contract”). Ms. Selzer needs the
proceeds from the sale of her Homestead to facilitate the purchase of a new home. The
Taylorcrest Contract had an initial closing date of June 9, 2023, and, by amendment, now
requires that closing occur on or before June 20, 2023.
11 On or about June 1, 2023, just over a week before Ms. Selzer’s closing date under
the Taylorcrest Contract, Mill Man improperly filed its notice of /is pendens in the Real Property
Records of Harris County, Texas at RP-2023-200265 (the “Lis Pendens”). Exhibit B. The Lis
Pendens identifies Ms. Selzer’s Homestead as being subject to a lawsuit filed against her
husband, Daryl M. Selzer and Haydin Construction, LLC — Cause No.; 2023-33288; Mill Man
Steel, Inc. v. Daryl M. Selzer & Haydin Construction, LLC; in the 334" Judicial District Court of
Harris County, Texas. See First Amended Petition attached as Exhibit C.
12. Critically, Mill Man’s lawsuit, which ostensibly supports the Lis Pendens, does
not include any claims related to a direct interest in the Homestead—the Mill Man suit does not
allege any title claims concerning the Homestead, or encumbrances fixed by contract to the
Homestead, or relate to the provision of materials or labor to the Homestead. See Exhibit C.
13. While required by the Texas Property Code, Ms. Selzer never received a notice of
Lis Pendens from Mill Man (the Texas Property Code mandates notice of a Lis Pendens be sent
to all persons with an interest in the property affected by the Lis Pendens within three-days of its
filing). Instead, Ms. Selzer learned of the Lis Pendens when the title company closing the
Taylorcrest transaction flagged the Lis Pendens and determined closing must be postponed. Said
another way, Ms. Selzer did not learn about the Lis Pendens through any notice of Lis Pendens
from Mill Man, as required by the Property Code.
14. Currently, the closing of both the Taylorcrest Contract and the subsequent
purchase of Ms. Selzer’s new home are postponed. However, neither closing can occur unless
and until the Lis Pendens is removed from Ms. Selzer’s Homestead.
APPLICATION TO EXPUNGE LIS PENDENS
15. The Court must expunge the Lis Pendens because (i) Mill Man’s underlying
lawsuit does not make claim related to a direct interest in the Homestead, (ii) Mill Man cannot
claim a direct interest in the Homestead because Mill Man is not a secured purchase money
lender for the Homestead, did not provide materials or labor to the Homestead, and is not a
taxing authority, and (iii) Mill Man failed to serve a copy of the notice of Lis Pendens on Ms
Selzer as required under section 12.007(d) of the Texas Property Code. See Tex. Const. art. XVI,
§ 50; Tex. Prop. Code §§ 12.007(d) and 41.002; see also Laster v. First Huntsville Properties
Co., 826 §.W.2d 125 (Tex. 1991); Jordan v. Hagler, 179 §.W.3d 217 (Tex. App.—Fort Worth
2005, no pet.).
I The Court must order the notice of Lis Pendens expunged.
16. Upon application, the Court should expunge the notice of Lis Pendens if the Court
determines that:
iv. The pleading upon which the notice is based does not contain a real property
claim;
The claimant fails to establish by a preponderance of the evidence the
probable validity of the real property claim; or
Vi The person who filed the notice of /is pendens failed to serve notice on each
party with an interest in the property within three days of filing the notice
TEX. PROP. CODE §§ 12.007-12.0071. The Court’s determination that any single factor described
above is applicable in this case would necessarily mandate that the Court order the Lis Pendens
filed by Mill Man expunged. /d. In the instant case, al/ three grounds requiring expungement of
the Lis pendens are present
i. Mill Man’s underlying action does make any claims related to a direct
interest in the Homestead and cannot support the Lis pendens as a matter of
law.
12. Mill Man’s Lis pendens is not based on any acceptable, direct interest claimed
against Ms. Selzer’s Homestead. Rather, Mill Man seeks a constructive trust against the
Homestead for unadjudicated, unliquidated damages that it claims against Haydin Construction,
LLC and Ms. Selzer’s husband—damages that have absolutely nothing to do with Ms.
Selzer’s Homestead. See, Plaintiffs First Amended Petition, Cause No.; 2023-33288; Mill Man
Steel, Inc. v. Daryl M. Selzer & Haydin Construction, LLC; in the 334" Judicial District Court of
Harris County, Texas.
13. At best, Mill Man’s suit alleges only a collateral interest against the Homestead,
which is insufficient to support a /is pendens against any property, and especially a homestead,
as a matter of law. Flores v. Haberman, 915 S$.W.2d 477 (Tex. 1995). A constructive trust to
satisfy a judgement against a defendant is no more than a collateral interest in the property and a
lis pendens is improper. Jd. It does not matter whether Mill Man alleges that Ms. Selzer’s
husband stole funds and used those funds to buy the Homestead—a scenario that is
chronologically impossible Such claims still amount to only a collateral interest in the
Homestead that cannot support a notice of /is pendens. Flores vy. Haberman, 915 $.W.2d 477
(Tex. 1995) (holding /is pendens filed by parties in conversion action against property owner
who allegedly purchased properties with converted funds were improper).
13 Accordingly, Mill Man has not pleaded a real property claim against the
Homestead sufficient to sustain the Lis pendens, and the Court must order the Lis pendens
expunged. TEX. PROP. CODE § 12.0071(C)(1).
ii. Mill Man cannot establish the probable validity of a real property claim
against the Homestead because Mill Man is not a secured purchase money
lender, a contractor enforcing a mechanics and materialman’s lien, or a
taxing authority.
14 The homestead of a single adult or family is protected from collateral attack for
the payment of a debt unless the debt is for an encumbrance on the property. An encumbrance
may be properly affixed to real property claimed as a homestead in relation to: 1) purchase
money on the homestead, 2) work and materials used to construct improvements on the
homestead (where there is a written contract to do so), or 3) unpaid taxes. Tex. Const. art. XVI, §
50; Tex. Prop. Code § 41.002; Laster v. First Huntsville Properties Co., 826 S.W.2d 125 (Tex.
1991); Jordan v. Hagler, 179 8.W.3d 217 (Tex. App.—Fort Worth 2005, no pet.).
15. Mill Man is not a secured purchase money lender, a contractor enforcing a
mechanics and materialman’s lien, or a taxing authority. Mill Man simply cannot legitimately
plead any causes of action that relate to a constitutionally acceptable direct interest in the
Homestead sufficient to support the Lis Pendens. Id.
16. Accordingly, Mill Man cannot establish the probable validity of a real property
claim against the Homestead by a preponderance of the evidence. The Court should order the
notice of Lis Pendens expunged. Tex. Prop. Code § 12.0071(c)(2).
Mill Man failed to serve notice on each party with an interest in the
property within three days of filing the notice.
17. Mill Man failed to notify Ms. Selzer that the Lis pendens affecting her Homestead
had been filed in the real property records as required by the Property Code. Pursuant to TEX.
PROP. CODE §§ 12.007-12.0071 the person filing a notice of /is pendens must serve a copy of the
notice on each party who has an interest in the real property affected by the notice. Ms. Selzer is
an owner and/or holder of an interest in the Homestead. Exhibit A. Under the statute, Mill Man
was obligated to notify any person with an interest in the Homestead within three-days of filing
the notice of Lis Pendens affecting the Homestead. /d. Mill Man wholly failed to notify Ms.
Selzer.
18. Accordingly, the Court must order the Lis Pendens expunged. Tex. Prop. Code §
12.0071(c)(3).
IL. The Court should award Ms. Selzer actual damages, exemplary damages and
attorney’s fees pursuant to TEX. CIv. PRAC. & REM. § 12.002.
19. Mill Man is liable to Ms. Selzer for damages, attorney’s fees and costs of court. A
person who makes, presents, or uses a document or other record with
Q) knowledge that the document or record is a fraudulent lien or claim against real
property or an interest in real property;
(2) intent that the document or record be given the same legal effect as a document or
record evidencing a valid lien or claim against real property or an interest in real
property; and
(3) intent to cause another person to suffer financial injury or emotional
distress
is liable for the greater of $10,000 or actual damages caused by the violation, court costs,
reasonable attorney’s fees, and exemplary damages in an amount determined by the court. TEX.
CIv. PRAC. & REM. § 12.002(a)(b).
20 In the instant case, on information and belief Mill Man filed the Lis Pendens
affecting the Homestead in order to improperly create leverage and gain the upper hand in
litigation unrelated to any direct interest in the Homestead. Mill Man’s nefarious intent is
apparent based on the simple truth that its suit does not identify Ms. Selzer as an owner of the
Homestead—a fact easily discernable in the Real Property Records of Harris County, Texas
(where the Lis Pendens was filed)—or mention that the Homestead is Ms. Selzer’s residence and
homestead
21. Mill Man’s suit, however, does indicate Mill Man is aware of a pending sale of
the Homestead. See Exhibit C at { 44. There can be no doubt based on the allegations in Mill
Man’s suit and timing of the filing of the Lis Pendens that Mill Man intended to frustrate Ms.
Selzer’s sale of the Homestead. And, by frustrating this sale, Mill Man intended to cause Ms.
Selzer (and any party with an interest in the Homestead, who may also care about Ms. Selzer’s
well-being) financial injury and hardship.
22. Accordingly, Mill Man is in violation of TEX. CIv. PRAC. & REM. § 12.002 and
liable to Ms. Selzer for the greater of $10,000 or actual damages caused by the violation, court
costs, reasonable attorney’s fees, and exemplary damages.
CONCLUSION
23. The Court should immediately expunge the Lis Pendens because Mill Man has no
claim against the Homestead, cannot legally articulate a constitutionally acceptable claim against
the Homestead, and failed to serve notice on Ms. Selzer as required by the Texas Property Code.
Because Mill Man violated TEX. CIv. PRAC. & REM. § 12.002, the Court should also award Ms
Selzer statutory or actual damages, exemplary damages, reasonable attorney’s fees, and costs of
court.
24. Moreover, the Court should consider this application and expunge the Lis
Pendens on an expedited, emergency basis because the Lis Pendens continues to act as a barrier
to both of Ms. Selzer’s real property transactions, both of which are set to close imminently, and
both of which are likely to fall apart, irreparably, if the Lis Pendens is not timely removed.
PRAYER
For these reasons, Ms. Selzer respectfully prays the Court to grant her application and
order that:
the Lise Pendens affecting the Homestead is immediately expunged; and
i Mill Man shall pay Ms. Selzer the greater of her actual or statutory
damages;
iii exemplary damages;
Iv. attorney’s fees;
costs of court; and
vi Ms. Selzer shall receive any such other and further relief as to which Ms
Selzer shall show herself entitled.
Respectfully submitted,
Hanszen Laporte, LLP
By /s/ Matthew S.C. Hansel
Matthew S.C. Hansel
Texas Bar No. 24092480
Mhansel@hanszenlaporte. com
14201 Memorial Drive
Houston, Texas 77079
Tel. (713) 522-9444
Fax. (713) 524-2580
ATTORNEY FOR
JENNIFER PITTSFORD SELZER
10
Preview
6/14/2023 3:29 PM Marilyn Burgess - District Clerk Harris County Envelope No. 76621926 2023-36828 / Court: 270 By: Monica Jackson Filed: 6/14/2023 3:29 PM CAUSE NO. JENNIFER PITTSFORD SELZER IN THE DISTRICT COURT Plaintiff, Vv OF HARRIS COUNTY, TEXAS MILL MAN STEEL, INC. Defendant. th JUDICIAL DISTRICT VERIFIED EMERGENCY APPLICATION TO EXPUNGE LIS PENDENS AND FOR DAMAGES AND FEES UNDER TEX. CIV. PRAC. & REM. CODE CHAPTER 12. COMES NOW Jennifer Pittsford Selzer, and files this emergency application to expunge an improper /is pendens and for damages and fees under TEX. CIV. PRAC. & REM. CODE CHAPTER 12, and, in support thereof, respectfully shows the Court the following SUMMARY ARGUMENT 1 The Court should order the expungement of an improper /is pendens clouding title to plaintiff Jennifer Pittsford Selzer’s residence and homestead on an emergency, expedited basis. The Court should expunge the notice of /is pendens if the Court determines that 1 The pleading upon which the notice is based does not contain a real property claim; i The claimant fails to establish by a preponderance of the evidence the probable validity of the real property claim; or iti The person who filed the notice of /is pendens failed to serve notice on each party with an interest in the property within three days of filing the notice. TEX. PROP. CODE §§ 12.007-12.0071 and 41.002; see also Tex. Const. art. XVI, § 50; Tex. Prop. Code §§ 12.007(d) and 41.002; Laster v. First Huntsville Properties Co., 826 S.W.2d 125 (Tex 1991); Jordan v. Hagler, 179 §.W.3d 217 (Tex. App.—Fort Worth 2005, no pet.). 2 Mill Man Steel, Inc. has filed a lawsuit against Ms. Selzer’s husband; Ms. Selzer is not a party to that lawsuit. In conjunction with the lawsuit, which seeks recovery only for breach of a commercial contract and has nothing to do with Ms. Selzer’s Homestead, Mill Man Steel, Inc. filed an improper notice of Lis Pendens against Ms. Selzer’s Homestead. Mill Man’s attorney has ignored all legal precedent in a tactic designed to cause financial injury to Ms. Selzer’s husband (and in the process is damaging Ms. Selzer). Mill Man’s attorney has refused requests to release the Lis Pendens. To make matters worse, Ms. Selzer has a current and existing contract to sell her homestead by June 20" and a contract to purchase a new home following the sale of her homestead, and both transactions are at risk of falling through. As a matter of law and, certainly, in the interests of equity, Mill Man cannot maintain a Lis Pendens on Ms. Selzer’s homestead, and Ms. Selzer requests that the Court enter an order immediately expunging the Lis Pendens. PARTIES 3 Plaintiff is Jennifer Pittsford Selzer (“Ms. Selzer”), an individual residing in Harris County, Texas. 4 Defendant is Mill Man Steel, Inc. (“Mill Man”), a Colorado corporation doing business in Texas that may be served with process by personal service on its registered agent, Neil Yoder, at 5580 Sapp Road, Conroe, Texas 77304. JURISDICTION & VENUE 5 The Court has jurisdiction over the controversy because it relates to interests in and title to real property situated within Harris County, Texas, and because damages are above the minimum jurisdictional limits of the Court. 6 Venue is proper in Harris County, Texas, under Texas Civil Practice & Remedies Code § 15.001 because this action involves real property located in Harris County. CONDITIONS PRECEDENT 7 Pursuant to Tex. R. Civ. P. 54, all conditions precedent to Plaintiff's claims for relief have been performed or have occurred. Facts 8 On or about July 19, 2022, Ms. Selzer and her husband purchased certain real property and improvements located at 12903 Taylorcrest Road, Houston, Texas 77079, which is more particularly described as follows LOT 17, BLOCK 6, MEMORIAL PLAZA, SECTION 1, ACCORDING TO THE MAP OR PLAT THEREOF, RECORDED IN VOLUME 49, PAGE 74, OF THE MAP RECORDS OF HARRIS COUNTY TEXAS (the “Homestead”). See Exhibit A, General Warranty Deed recorded at RP-2022-373955 in the Real Property Records of Harris County, Texas on July 20, 2022. 9 The Homestead has been Ms. Selzer’s sole residence and homestead since she purchased it in July 2022. 10. On or about April 26, 2023, Ms. Selzer and her husband executed a TREC earnest money contract to sell the Homestead (the “Taylorcrest Contract”). Ms. Selzer needs the proceeds from the sale of her Homestead to facilitate the purchase of a new home. The Taylorcrest Contract had an initial closing date of June 9, 2023, and, by amendment, now requires that closing occur on or before June 20, 2023. 11 On or about June 1, 2023, just over a week before Ms. Selzer’s closing date under the Taylorcrest Contract, Mill Man improperly filed its notice of /is pendens in the Real Property Records of Harris County, Texas at RP-2023-200265 (the “Lis Pendens”). Exhibit B. The Lis Pendens identifies Ms. Selzer’s Homestead as being subject to a lawsuit filed against her husband, Daryl M. Selzer and Haydin Construction, LLC — Cause No.; 2023-33288; Mill Man Steel, Inc. v. Daryl M. Selzer & Haydin Construction, LLC; in the 334" Judicial District Court of Harris County, Texas. See First Amended Petition attached as Exhibit C. 12. Critically, Mill Man’s lawsuit, which ostensibly supports the Lis Pendens, does not include any claims related to a direct interest in the Homestead—the Mill Man suit does not allege any title claims concerning the Homestead, or encumbrances fixed by contract to the Homestead, or relate to the provision of materials or labor to the Homestead. See Exhibit C. 13. While required by the Texas Property Code, Ms. Selzer never received a notice of Lis Pendens from Mill Man (the Texas Property Code mandates notice of a Lis Pendens be sent to all persons with an interest in the property affected by the Lis Pendens within three-days of its filing). Instead, Ms. Selzer learned of the Lis Pendens when the title company closing the Taylorcrest transaction flagged the Lis Pendens and determined closing must be postponed. Said another way, Ms. Selzer did not learn about the Lis Pendens through any notice of Lis Pendens from Mill Man, as required by the Property Code. 14. Currently, the closing of both the Taylorcrest Contract and the subsequent purchase of Ms. Selzer’s new home are postponed. However, neither closing can occur unless and until the Lis Pendens is removed from Ms. Selzer’s Homestead. APPLICATION TO EXPUNGE LIS PENDENS 15. The Court must expunge the Lis Pendens because (i) Mill Man’s underlying lawsuit does not make claim related to a direct interest in the Homestead, (ii) Mill Man cannot claim a direct interest in the Homestead because Mill Man is not a secured purchase money lender for the Homestead, did not provide materials or labor to the Homestead, and is not a taxing authority, and (iii) Mill Man failed to serve a copy of the notice of Lis Pendens on Ms Selzer as required under section 12.007(d) of the Texas Property Code. See Tex. Const. art. XVI, § 50; Tex. Prop. Code §§ 12.007(d) and 41.002; see also Laster v. First Huntsville Properties Co., 826 §.W.2d 125 (Tex. 1991); Jordan v. Hagler, 179 §.W.3d 217 (Tex. App.—Fort Worth 2005, no pet.). I The Court must order the notice of Lis Pendens expunged. 16. Upon application, the Court should expunge the notice of Lis Pendens if the Court determines that: iv. The pleading upon which the notice is based does not contain a real property claim; The claimant fails to establish by a preponderance of the evidence the probable validity of the real property claim; or Vi The person who filed the notice of /is pendens failed to serve notice on each party with an interest in the property within three days of filing the notice TEX. PROP. CODE §§ 12.007-12.0071. The Court’s determination that any single factor described above is applicable in this case would necessarily mandate that the Court order the Lis Pendens filed by Mill Man expunged. /d. In the instant case, al/ three grounds requiring expungement of the Lis pendens are present i. Mill Man’s underlying action does make any claims related to a direct interest in the Homestead and cannot support the Lis pendens as a matter of law. 12. Mill Man’s Lis pendens is not based on any acceptable, direct interest claimed against Ms. Selzer’s Homestead. Rather, Mill Man seeks a constructive trust against the Homestead for unadjudicated, unliquidated damages that it claims against Haydin Construction, LLC and Ms. Selzer’s husband—damages that have absolutely nothing to do with Ms. Selzer’s Homestead. See, Plaintiffs First Amended Petition, Cause No.; 2023-33288; Mill Man Steel, Inc. v. Daryl M. Selzer & Haydin Construction, LLC; in the 334" Judicial District Court of Harris County, Texas. 13. At best, Mill Man’s suit alleges only a collateral interest against the Homestead, which is insufficient to support a /is pendens against any property, and especially a homestead, as a matter of law. Flores v. Haberman, 915 S$.W.2d 477 (Tex. 1995). A constructive trust to satisfy a judgement against a defendant is no more than a collateral interest in the property and a lis pendens is improper. Jd. It does not matter whether Mill Man alleges that Ms. Selzer’s husband stole funds and used those funds to buy the Homestead—a scenario that is chronologically impossible Such claims still amount to only a collateral interest in the Homestead that cannot support a notice of /is pendens. Flores vy. Haberman, 915 $.W.2d 477 (Tex. 1995) (holding /is pendens filed by parties in conversion action against property owner who allegedly purchased properties with converted funds were improper). 13 Accordingly, Mill Man has not pleaded a real property claim against the Homestead sufficient to sustain the Lis pendens, and the Court must order the Lis pendens expunged. TEX. PROP. CODE § 12.0071(C)(1). ii. Mill Man cannot establish the probable validity of a real property claim against the Homestead because Mill Man is not a secured purchase money lender, a contractor enforcing a mechanics and materialman’s lien, or a taxing authority. 14 The homestead of a single adult or family is protected from collateral attack for the payment of a debt unless the debt is for an encumbrance on the property. An encumbrance may be properly affixed to real property claimed as a homestead in relation to: 1) purchase money on the homestead, 2) work and materials used to construct improvements on the homestead (where there is a written contract to do so), or 3) unpaid taxes. Tex. Const. art. XVI, § 50; Tex. Prop. Code § 41.002; Laster v. First Huntsville Properties Co., 826 S.W.2d 125 (Tex. 1991); Jordan v. Hagler, 179 8.W.3d 217 (Tex. App.—Fort Worth 2005, no pet.). 15. Mill Man is not a secured purchase money lender, a contractor enforcing a mechanics and materialman’s lien, or a taxing authority. Mill Man simply cannot legitimately plead any causes of action that relate to a constitutionally acceptable direct interest in the Homestead sufficient to support the Lis Pendens. Id. 16. Accordingly, Mill Man cannot establish the probable validity of a real property claim against the Homestead by a preponderance of the evidence. The Court should order the notice of Lis Pendens expunged. Tex. Prop. Code § 12.0071(c)(2). Mill Man failed to serve notice on each party with an interest in the property within three days of filing the notice. 17. Mill Man failed to notify Ms. Selzer that the Lis pendens affecting her Homestead had been filed in the real property records as required by the Property Code. Pursuant to TEX. PROP. CODE §§ 12.007-12.0071 the person filing a notice of /is pendens must serve a copy of the notice on each party who has an interest in the real property affected by the notice. Ms. Selzer is an owner and/or holder of an interest in the Homestead. Exhibit A. Under the statute, Mill Man was obligated to notify any person with an interest in the Homestead within three-days of filing the notice of Lis Pendens affecting the Homestead. /d. Mill Man wholly failed to notify Ms. Selzer. 18. Accordingly, the Court must order the Lis Pendens expunged. Tex. Prop. Code § 12.0071(c)(3). IL. The Court should award Ms. Selzer actual damages, exemplary damages and attorney’s fees pursuant to TEX. CIv. PRAC. & REM. § 12.002. 19. Mill Man is liable to Ms. Selzer for damages, attorney’s fees and costs of court. A person who makes, presents, or uses a document or other record with Q) knowledge that the document or record is a fraudulent lien or claim against real property or an interest in real property; (2) intent that the document or record be given the same legal effect as a document or record evidencing a valid lien or claim against real property or an interest in real property; and (3) intent to cause another person to suffer financial injury or emotional distress is liable for the greater of $10,000 or actual damages caused by the violation, court costs, reasonable attorney’s fees, and exemplary damages in an amount determined by the court. TEX. CIv. PRAC. & REM. § 12.002(a)(b). 20 In the instant case, on information and belief Mill Man filed the Lis Pendens affecting the Homestead in order to improperly create leverage and gain the upper hand in litigation unrelated to any direct interest in the Homestead. Mill Man’s nefarious intent is apparent based on the simple truth that its suit does not identify Ms. Selzer as an owner of the Homestead—a fact easily discernable in the Real Property Records of Harris County, Texas (where the Lis Pendens was filed)—or mention that the Homestead is Ms. Selzer’s residence and homestead 21. Mill Man’s suit, however, does indicate Mill Man is aware of a pending sale of the Homestead. See Exhibit C at { 44. There can be no doubt based on the allegations in Mill Man’s suit and timing of the filing of the Lis Pendens that Mill Man intended to frustrate Ms. Selzer’s sale of the Homestead. And, by frustrating this sale, Mill Man intended to cause Ms. Selzer (and any party with an interest in the Homestead, who may also care about Ms. Selzer’s well-being) financial injury and hardship. 22. Accordingly, Mill Man is in violation of TEX. CIv. PRAC. & REM. § 12.002 and liable to Ms. Selzer for the greater of $10,000 or actual damages caused by the violation, court costs, reasonable attorney’s fees, and exemplary damages. CONCLUSION 23. The Court should immediately expunge the Lis Pendens because Mill Man has no claim against the Homestead, cannot legally articulate a constitutionally acceptable claim against the Homestead, and failed to serve notice on Ms. Selzer as required by the Texas Property Code. Because Mill Man violated TEX. CIv. PRAC. & REM. § 12.002, the Court should also award Ms Selzer statutory or actual damages, exemplary damages, reasonable attorney’s fees, and costs of court. 24. Moreover, the Court should consider this application and expunge the Lis Pendens on an expedited, emergency basis because the Lis Pendens continues to act as a barrier to both of Ms. Selzer’s real property transactions, both of which are set to close imminently, and both of which are likely to fall apart, irreparably, if the Lis Pendens is not timely removed. PRAYER For these reasons, Ms. Selzer respectfully prays the Court to grant her application and order that: the Lise Pendens affecting the Homestead is immediately expunged; and i Mill Man shall pay Ms. Selzer the greater of her actual or statutory damages; iii exemplary damages; Iv. attorney’s fees; costs of court; and vi Ms. Selzer shall receive any such other and further relief as to which Ms Selzer shall show herself entitled. Respectfully submitted, Hanszen Laporte, LLP By /s/ Matthew S.C. Hansel Matthew S.C. Hansel Texas Bar No. 24092480 Mhansel@hanszenlaporte. com 14201 Memorial Drive Houston, Texas 77079 Tel. (713) 522-9444 Fax. (713) 524-2580 ATTORNEY FOR JENNIFER PITTSFORD SELZER 10