Preview
Filed
6/11/2020 10:57 AM
Beverley McGrew Walker
District Clerk
Fort Bend County, Texas
Shelby Taylor
v
CAUSE NO. 20-DCV-273747
RIVERSTONE RESORT, LLC, IN THE DISTRICT COURT
Plaintiff
458" JUDICIAL DISTRICT
PROSPERITY BANK, MARK SCHMUTZ,
Defendants
FORT BEND COUNTY, TEXAS
PLAINTIFF’S MOTION FOR REQUESTING DECLARATORY JUDGMENT AND CONTINUANCE OF
TEMPORARY INJUNCTION HEARING
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Riverstone Resort, LLC, (“Plaintiff”), a Texas Limited Liability Company,
who, pursuant to Chapter 37 of the Tex. Civ. Prac. & Rem. Code and Tex. R. Civ. P. 680, files this
Motion for Continuance of Temporary Injunction Hearing scheduled in this cause for June 15,
2020 at 10:30 am and in support of its Motion would respectfully show the Court the following:
BACKGROUND
1. Plaintiff is the record owner of, (has titleship interest in), the property located at:
2041A Hagerson Road, Sugar Land, Texas 77479 (“the subject property”), currently
described as (see below) to which reference is hereby made for all purposes:
A Fieldnote Description of a tract of land located in Fort Bend County, Texas,
situated in the William Little League, Abstract NO. 54, being the 7 Tracts of land
recorded under Clerk’s File Nos. 9733667 thru 9733671 inclusive, 9733675. And
9733676 of the said County Real Property Records, being out of Lot 8 of the partition
of the J. T. Tinsley called 1,000-acre tract as recorded in Volume “D”, Page 250 Of the
surveyor’s records of said County, said tract being more and particularly described
by metes and bounds attached as Exhibit “A” to Plaintiff’s petition and also recorded
Page 1 of 6
under Fort Bend County Clerk's File NO. 2017073845 and re-recorded under Clerk's
File NO. 2017084926, in the Official Public Records of Real Property of Fort Bend
County, Texas.
On January 30, 2020, Plaintiff received “Notice of Default and Intent to Accelerate”,
see Exhibit A attached hereto, from Prosperity Bank (“Prosperity”) and Mark
Schmutz (“Schmutz”) collectively referred to as “Defendants”, wrongfully declaring
that Plaintiff was in default, because the monthly payment of $14,738.16 due on
January 28, 2020 was not made—essentially asserting that the payment which was
due only two days ago was late and therefore Prosperity was accelerating the note.
In addition, the “Notice of Default and Intent to Accelerate”, also demanded
payment of delinquent taxes for 2018 and 2019, apparently! making it the
foundation of default and intent to accelerate the note and foreclosure, see Exhibit
B. Whereas, pursuant to a certain settlement agreement’, see Exhibit C, payment of
only 2018 taxes were due on or before January 15, 2020.
c. Payment of Delinquent Taxes. The ad valorem real property taxes on the Collateral are
delinquent and Borrower shall pay those taxes and provide proof thereof to Lender on or before
January 15, 2020. Lender agrees not to take any action against the Borrower or the Property for
delinquency relating to ad valorem real property taxes on or before January 15, 2020.
See Settlement Agreement, Exhibit C.
2019 taxes were not delinquent or due at the time Prosperity demanded payment of
2019 ad valorem taxes and made it the justification for its intent to accelerate and
foreclose on the subject property.
+ Plaintiff is not in default and unaware of the foundation or justification of the foreclosure action on part of the
Defendants—Defendants have not specified default in their notice of acceleration and foreclosure.
2 Defendants had previously, in 2019, wrongfully accelerated the note and instituted foreclosure proceedings on
the subject property, details of which are included in Plaintiffs Original Petition.
Page 2 of 6
Plaintiff, immediately, before the expiry of the deadline given by Prosperity in their
notice of acceleration and intent to foreclose, made a payment to Prosperity in the
amount of $14,738.16 via wire transfer, see Exhibit D, and entered into an
installment arrangement (“Installment Agreement”) with Fort Bend County Tax
Assessor/Collector for ad valorem taxes due for the years 2018 and 2019, and
emailed copies to Prosperity’s attorneys, see Exhibit E and F—effectively curing both
alleged defaults in Prosperity’s letter dated January 30, 2020, notice of default and
accelerate.
However, despite having fully cured the alleged defaults, on February 13, 2020,
Prosperity, acting in bad faith and malice, accelerated Plaintiff’s note, see Exhibit G.
On March 11, 2020, Plaintiff received notice of substitute trustee sale from
Prosperity, scheduling the foreclosure for April 7, 2020, see Exhibit H.
On May 4, 2020, Defendant Prosperity sent another notice of substitute trustee sale,
see Exhibit |, which was posted and filed for the public sale of the subject property
on June 2, 2020.
On May 29, 2020, Plaintiff filed its original Petition and Request for a Temporary
Restraining Order (“TRO”) and Permanent Injunction against Defendants.
10 The Honorable Court granted Plaintiff’s request and issued a Temporary Restraining
Order, enjoining the Defendants from conducting a foreclosure sale of the property
subject of this suit.
ARGUMENT FOR EXTENSION
Page 3 of 6
11, Plaintiff, in its Original Petition has asserted that the Deed of Trust under which
foreclosure is claimed is materially and substantially deficient in describing the
property it attempts to convey, and does not conform with the requirements
prescribed by Texas Property Code Sections 5.028 and 5.029.
12 Plaintiff has commissioned a survey of the property to establish the deficiency of the
conveyance, and expects to have the new survey in the next two-to-four weeks.
13 This case, including any foreclosure proceedings, cannot move forward without a
proper deed of trust—the present deed is materially deficient in its description of
the property conveyed.
14. In addition, Plaintiff in its Original Petition had filed a Motion requesting that it may
be permitted to propound limited, but essential, discovery upon the Defendants,
including deposition of Defendant Mark Schmutz, who is a material witness.
However, Plaintiff's motion for requesting discovery was denied by the Honorable
Court.
15 Plaintiff, at this time, without the benefit of discovery documents, evidence to
support its case, and deposition of Mark Schmutz, needs additional time to gather
evidence to present its case-in-chief at the Temporary Injunction hearing presently
scheduled for June 15, 2020 at 10:30 am.
16. Tex. R. Civ. P. 680 allows, for good cause, one extension of fourteen days (14 days)
of the Temporary Restraining Order.
Every temporary restraining order granted without notice shall be endorsed
with the date and hour of issuance; shall be filed forthwith in the clerk's
office and entered of record; shall define the injury and state why it is
irreparable and why the order was granted without notice; and shall expire
Page 4 of 6
by its terms within such time after signing, not to exceed fourteen days, as
the court fixes, unless within the time so fixed the order, for good cause
shown, is extended for a like period or unless the party against whom the
order is directed consents that it may be extended for a longer period. The
reasons for the extension shall be entered of record.
See Tex. R. Civ. P. 680.
17. The Texas Supreme Court has considered the following non-exclusive factors when
deciding whether a trial court abused its discretion in denying a motion for
continuance filed for the purpose of gaining additional time for discovery: the length
of time the case has been on file, the materiality and purpose of the discovery
sought, and whether the party seeking the continuance has exercised due diligence
to obtain the discovery sought. Id. (diligence and length of time on file); 925 S.W.2d
640, 647 (Tex. 1996) (materiality and purpose); National Union Fire | Tenneco Inc. v.
Enter. Prods. Co ns. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 521-22 (Tex. 1995)
(materiality); State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988)
(diligence); see also Perrotta v. Farmers Ins. Exch., 47 S.W.3d 569, 576 (Tex. App.-
Houston [1st Dist.] 2001, no pet.) (using these factors to decide whether a trial court
abused its discretion in denying a motion for continuance).
PRAYER FOR RELIEF
Wherefore, premises considered, Plaintiff requests that the Temporary Restraining Order
and Temporary Injunction hearing may be continued for at least a period 14 days, so that
Plaintiff can produce the proper survey evidencing the deficiency in the Deed and have an
opportunity to adequately prepare for an evidentiary hearing on the above referenced matters.
Page 5 of 6
Respectfully submitted,
Lsf Sanjay R. Chadha
Sanjay R Chadha
State Bar No. 795287
6575 W Loop South, Suite 500
Bellaire, TX 77401
(281) 639-4216
srchadha@reachalaw.com
CERTIFICATE OF CONFERENCE
I certify that on June 10, 2020, 3:30 pm I conferred with the attorney for
Defendant Prosperity Bank via email on Plaintiff's intention to file this motion for
continuance and that there was no response from Defendant’s counsel.
Zsf Sanjay R Chadha
Sanjay R Chadha
State Bar No. 795287
6575 West Loop South, Suite 500
Bellaire, TX 77401
(866) 818 2328
srchadha@reachadhalaw.com
CERTIFICATE OF SERVICE
Thereby certify, in accordance with Tex. R. Civ. P., Rule 21a, that a true and correct copy
of the above and foregoing document has been sent to all known counsel pursuant to the Texas
Rules of Civil Procedure on this the day of June 11, 2020.
/s/ Sanjay R Chadha
Sanjay R Chadha
Attorney for Plaintiff
Page 6 of 6
Preview
Filed 6/11/2020 10:57 AM Beverley McGrew Walker District Clerk Fort Bend County, Texas Shelby Taylor v CAUSE NO. 20-DCV-273747 RIVERSTONE RESORT, LLC, IN THE DISTRICT COURT Plaintiff 458" JUDICIAL DISTRICT PROSPERITY BANK, MARK SCHMUTZ, Defendants FORT BEND COUNTY, TEXAS PLAINTIFF’S MOTION FOR REQUESTING DECLARATORY JUDGMENT AND CONTINUANCE OF TEMPORARY INJUNCTION HEARING TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Riverstone Resort, LLC, (“Plaintiff”), a Texas Limited Liability Company, who, pursuant to Chapter 37 of the Tex. Civ. Prac. & Rem. Code and Tex. R. Civ. P. 680, files this Motion for Continuance of Temporary Injunction Hearing scheduled in this cause for June 15, 2020 at 10:30 am and in support of its Motion would respectfully show the Court the following: BACKGROUND 1. Plaintiff is the record owner of, (has titleship interest in), the property located at: 2041A Hagerson Road, Sugar Land, Texas 77479 (“the subject property”), currently described as (see below) to which reference is hereby made for all purposes: A Fieldnote Description of a tract of land located in Fort Bend County, Texas, situated in the William Little League, Abstract NO. 54, being the 7 Tracts of land recorded under Clerk’s File Nos. 9733667 thru 9733671 inclusive, 9733675. And 9733676 of the said County Real Property Records, being out of Lot 8 of the partition of the J. T. Tinsley called 1,000-acre tract as recorded in Volume “D”, Page 250 Of the surveyor’s records of said County, said tract being more and particularly described by metes and bounds attached as Exhibit “A” to Plaintiff’s petition and also recorded Page 1 of 6 under Fort Bend County Clerk's File NO. 2017073845 and re-recorded under Clerk's File NO. 2017084926, in the Official Public Records of Real Property of Fort Bend County, Texas. On January 30, 2020, Plaintiff received “Notice of Default and Intent to Accelerate”, see Exhibit A attached hereto, from Prosperity Bank (“Prosperity”) and Mark Schmutz (“Schmutz”) collectively referred to as “Defendants”, wrongfully declaring that Plaintiff was in default, because the monthly payment of $14,738.16 due on January 28, 2020 was not made—essentially asserting that the payment which was due only two days ago was late and therefore Prosperity was accelerating the note. In addition, the “Notice of Default and Intent to Accelerate”, also demanded payment of delinquent taxes for 2018 and 2019, apparently! making it the foundation of default and intent to accelerate the note and foreclosure, see Exhibit B. Whereas, pursuant to a certain settlement agreement’, see Exhibit C, payment of only 2018 taxes were due on or before January 15, 2020. c. Payment of Delinquent Taxes. The ad valorem real property taxes on the Collateral are delinquent and Borrower shall pay those taxes and provide proof thereof to Lender on or before January 15, 2020. Lender agrees not to take any action against the Borrower or the Property for delinquency relating to ad valorem real property taxes on or before January 15, 2020. See Settlement Agreement, Exhibit C. 2019 taxes were not delinquent or due at the time Prosperity demanded payment of 2019 ad valorem taxes and made it the justification for its intent to accelerate and foreclose on the subject property. + Plaintiff is not in default and unaware of the foundation or justification of the foreclosure action on part of the Defendants—Defendants have not specified default in their notice of acceleration and foreclosure. 2 Defendants had previously, in 2019, wrongfully accelerated the note and instituted foreclosure proceedings on the subject property, details of which are included in Plaintiffs Original Petition. Page 2 of 6 Plaintiff, immediately, before the expiry of the deadline given by Prosperity in their notice of acceleration and intent to foreclose, made a payment to Prosperity in the amount of $14,738.16 via wire transfer, see Exhibit D, and entered into an installment arrangement (“Installment Agreement”) with Fort Bend County Tax Assessor/Collector for ad valorem taxes due for the years 2018 and 2019, and emailed copies to Prosperity’s attorneys, see Exhibit E and F—effectively curing both alleged defaults in Prosperity’s letter dated January 30, 2020, notice of default and accelerate. However, despite having fully cured the alleged defaults, on February 13, 2020, Prosperity, acting in bad faith and malice, accelerated Plaintiff’s note, see Exhibit G. On March 11, 2020, Plaintiff received notice of substitute trustee sale from Prosperity, scheduling the foreclosure for April 7, 2020, see Exhibit H. On May 4, 2020, Defendant Prosperity sent another notice of substitute trustee sale, see Exhibit |, which was posted and filed for the public sale of the subject property on June 2, 2020. On May 29, 2020, Plaintiff filed its original Petition and Request for a Temporary Restraining Order (“TRO”) and Permanent Injunction against Defendants. 10 The Honorable Court granted Plaintiff’s request and issued a Temporary Restraining Order, enjoining the Defendants from conducting a foreclosure sale of the property subject of this suit. ARGUMENT FOR EXTENSION Page 3 of 6 11, Plaintiff, in its Original Petition has asserted that the Deed of Trust under which foreclosure is claimed is materially and substantially deficient in describing the property it attempts to convey, and does not conform with the requirements prescribed by Texas Property Code Sections 5.028 and 5.029. 12 Plaintiff has commissioned a survey of the property to establish the deficiency of the conveyance, and expects to have the new survey in the next two-to-four weeks. 13 This case, including any foreclosure proceedings, cannot move forward without a proper deed of trust—the present deed is materially deficient in its description of the property conveyed. 14. In addition, Plaintiff in its Original Petition had filed a Motion requesting that it may be permitted to propound limited, but essential, discovery upon the Defendants, including deposition of Defendant Mark Schmutz, who is a material witness. However, Plaintiff's motion for requesting discovery was denied by the Honorable Court. 15 Plaintiff, at this time, without the benefit of discovery documents, evidence to support its case, and deposition of Mark Schmutz, needs additional time to gather evidence to present its case-in-chief at the Temporary Injunction hearing presently scheduled for June 15, 2020 at 10:30 am. 16. Tex. R. Civ. P. 680 allows, for good cause, one extension of fourteen days (14 days) of the Temporary Restraining Order. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire Page 4 of 6 by its terms within such time after signing, not to exceed fourteen days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. See Tex. R. Civ. P. 680. 17. The Texas Supreme Court has considered the following non-exclusive factors when deciding whether a trial court abused its discretion in denying a motion for continuance filed for the purpose of gaining additional time for discovery: the length of time the case has been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought. Id. (diligence and length of time on file); 925 S.W.2d 640, 647 (Tex. 1996) (materiality and purpose); National Union Fire | Tenneco Inc. v. Enter. Prods. Co ns. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 521-22 (Tex. 1995) (materiality); State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988) (diligence); see also Perrotta v. Farmers Ins. Exch., 47 S.W.3d 569, 576 (Tex. App.- Houston [1st Dist.] 2001, no pet.) (using these factors to decide whether a trial court abused its discretion in denying a motion for continuance). PRAYER FOR RELIEF Wherefore, premises considered, Plaintiff requests that the Temporary Restraining Order and Temporary Injunction hearing may be continued for at least a period 14 days, so that Plaintiff can produce the proper survey evidencing the deficiency in the Deed and have an opportunity to adequately prepare for an evidentiary hearing on the above referenced matters. Page 5 of 6 Respectfully submitted, Lsf Sanjay R. Chadha Sanjay R Chadha State Bar No. 795287 6575 W Loop South, Suite 500 Bellaire, TX 77401 (281) 639-4216 srchadha@reachalaw.com CERTIFICATE OF CONFERENCE I certify that on June 10, 2020, 3:30 pm I conferred with the attorney for Defendant Prosperity Bank via email on Plaintiff's intention to file this motion for continuance and that there was no response from Defendant’s counsel. Zsf Sanjay R Chadha Sanjay R Chadha State Bar No. 795287 6575 West Loop South, Suite 500 Bellaire, TX 77401 (866) 818 2328 srchadha@reachadhalaw.com CERTIFICATE OF SERVICE Thereby certify, in accordance with Tex. R. Civ. P., Rule 21a, that a true and correct copy of the above and foregoing document has been sent to all known counsel pursuant to the Texas Rules of Civil Procedure on this the day of June 11, 2020. /s/ Sanjay R Chadha Sanjay R Chadha Attorney for Plaintiff Page 6 of 6