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CAUSE NO.
DENISE YOUNG IN THE DISTRICT COURT OF
v. FORT BEND COUNTY, TEXAS
LOANCARE, LLC ——_-__J JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION, APPLICATION FOR INJUNCTIVE RELIEF,
AND RE UEST FOR DISCLOSURES
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Denise Young, Plaintiff herein, filing this her Original Petition,
Application for Injunctive Relief, and Request for Admissions against Loancare, LLC, Defendant
herein, and for causes of action would respectfully show the Court as follows:
DISCOVERY
1 Plaintiff intends to conduct discovery under Texas Rules of Civil Procedure 190.3
(Level 2).
PARTIES
2 Denise Young is an individual who resides in Fort Bend County, Texas and may
be served with process on the undersigned legal counsel.
3 Loancare, LLC is an entity conducts business in Fort Bend County, Texas and may
be served with process as follows:
Loancare, LLC
c/o CT Corporation Services
1999 Bryan Street, Suite 900
Dallas, TX 75201
JURISDICTION AND VENUE
5. The Court has jurisdiction over Loancare, LLC because this Defendant conducts
business Fort Bend County, Texas.
6. The Court has jurisdiction over the controversy because the damages are within
the jurisdictional limits of the Court. Venue is mandatory in Fort Bend County, Texas because the
subject matter of the lawsuit involves real property which is located in Fort Bend County, Texas.
Further, all or a substantial part of the events or omissions giving rise to Plaintiff's causes of
action against Defendant occurred in Fort Bend County, Texas thus venue is proper under
§15.002(a)(1) of the Texas Civil Practice and Remedies Code.
RELEVANT FACTS
4 The subject matter of the lawsuit is the real property and the improvements thereon
located at 4943 Hickory Branch Lane, Sugarland TX 77479 (the “Property”).
A Denise Young (“Young”) purchased the Property on or about September 30, 2015.
During the process of purchasing the Property, Young executed a Note as well as a Deed of Trust
in which Quicken Loans Inc. is listed as the Lender.
6 Upon information and belief, the Deed of Trust was subsequently transferred to
Loancare, LLC (“Loancare”), under assignment, but the original Deed of Trust was not assigned
properly.
7 The alleged assignment of the Deed of Trust does not meet the requisites of a valid
assignment and, therefore, the chain of title is broken from the original lender.
8 Young consistently made her mortgage payments in a timely manner; however,
she began to have financial difficulties due COVID related issues. Realizing that she may soon
become in default on her mortgage payments, Young reached out to Loancare to obtain loss
mitigation options. Unfortunately, Loancare was non-responsive and did not offer any options.
9 Accordingly, Young began researching other options including, but not limited to,
selling her Property. Unfortunately, Young was not able to sell her home right away; however,
she has now obtained several offers of which she expects to accept one of them very shortly.
Young has requested an up-to-date payoff but she has not received one yet.
10. Young maintained her efforts to sell the Property; however, in August 2023, she
was contacted by an investor wishing to purchase her Property to prevent the coming foreclosure
sale scheduled for September 5, 2022. Apparently, Loancare posted Young’s Property for
foreclosure sale without sending her proper and timely notice of default, an opportunity to cure
the default, notice of intent to accelerate, notice of acceleration, and notice of foreclosure sale as
required by the Texas Property Code thereby violating Young’s due process rights as well as the
Deed of Trust.
11. Further, Plaintiff is informed and believes, and thereon alleges, that in order to
conduct a foreclosure action, a person or entity must have standing under the deed of trust and
statute. Plaintiff is informed and believes, and thereon alleges, that in order to assign a deed of
trust, some person or entity must rightfully hold the note that the deed of trust secures payment
on; an assignment of the mortgage note carries the deed of trust with it, while an assignment of
the deed of trust alone is a nullity.
12. Loancare cannot produce any evidence that the Young’s mortgage note has ever
been transferred to them. Any attempt to transfer the beneficial interest of a deed of trust without
actual ownership of the underlying mortgage note is void under the law. Therefore, Loancare
Loancare
cannot establish that is entitled to assert a claim in this case such that the assignment to
was effective at all. As such, Loancare does not have standing to foreclosure on the Property.
13. Accordingly, Plaintiff alleges that Loancare is attempting to wrongfully sell her
Property at a foreclosure sale on July 5, 2022 in violation of the Deed of Trust, Texas Property
Code, and Plaintiff's due process rights.
CLAIMS
AGENCY & RESPONDEAT SUPERIOR
14, Wherever it is alleged that Defendant did anything, or failed to do anything, itis
meant that such conduct was done by Defendant’s employees, vice principals, agents, attorneys,
and/or affiliated entities, in the normal or routine scope of their authority, or ratified by Defendant,
or done with such apparent authority so as to cause Plaintiff to reasonably rely that such conduct
was within the scope of their authority. Plaintiff did rely to Plaintiff's detriment on Defendant’s
representatives being vested with authority for their conduct. Defendant is vicariously liable for
the conduct of their employees, vice principals, agents, attorneys, affiliated entities, and
representatives of Defendant’s affiliated entities by virtue of respondeat superior, apparent
authority, and estoppel doctrines.
FIRST CAUSE OF ACTION:
DECLARATORY JUDGMENT
15. To the extent not inconsistent herewith, Denise Young (“Young”) incorporates by
reference the allegations made in paragraphs | through 13 as if set forth fully herein.
16. Plaintiffs made, presented, or used the assignment associated with the mortgage
loan with knowledge that the documents or other records are fraudulent court records or
fraudulent liens or claims against the real property. Additionally, Defendant falsely and
and
fraudulently prepared documents required for Defendant to foreclose as a calculated
fraudulent business practice.
17: Therefore, Plaintiff seeks a determination of the rights of the parties pursuant to
Tex. Civ. Prac. & Rem. Code Ann. § 37.001 (West). An actual controversy has arisen and now
exists between Plaintiff and Defendant regarding their respective rights and duties, in that
Plaintiff contends that Defendant did not have the right to foreclose on the Property because
Defendant has failed to perfect any security interest in the mortgage note as a real party in
interest. Thus, the purported power to foreclose, or even to collect monetarily on the note, does
not now apply.
18. Plaintiff seeks a determination that Defendant is liable for having failed to properly
record all releases, transfers, assignments or other actions relating to instruments Defendant filed
or caused to be filed, registered or recorded in the deed of records of Texas in the same manner as
the original instrument was required to filed, registered or recorded.
19. Plaintiff seeks a determination that the power of sale in the Deed of Trust has no
force and effect at this time as to Defendant because Defendant’s actions in processing, handling,
and foreclosure of this loan involved fraudulent, false, deceptive and/or misleading practices
including, but not limited to, violations of Texas laws meant to protect the property records and
property owner’s/mortgage borrowers.
20. Plaintiff seeks a determination that because Defendant does not have standing to
initiate foreclosure of the property, that any and all notices sent by Defendant regarding default or
foreclosure be declared invalid.
2A. Plaintiff seeks a declaratory judgment for quiet title, thereby voiding all documents
on file indicating any interest of Defendant in the Property pursuant to the Deed of Trust,
subsequent assignment thereof, appointment of substitute trustee documents and voiding any
to peaceful
interest in the name of Defendant in the Property. Furthermore, Plaintiff is entitled
and quiet possession of the Property against Defendant now and forever.
SECOND CAUSE OF ACTION:
BREACH OF CONTRACT
22. To the extent not inconsistent herewith, Denise Young (“Young”) incorporates by
reference the allegations made in paragraphs 1 through 13 as if set forth fully herein.
23. The actions committed by Loancare, LLC (“Loancare”) constitute breach of
contract because!
A There exists a valid, enforceable contract between Young and Loancare;
B Young has standing to sue for breach of contract;
Young performed, tendered performance, or was excused from performing
her contractual obligations;
Loancare breached the contract; and
The breach of contract by Loancare caused Young’s injury.
THIRD CAUSE OF ACTION:
VIOLATION OF TEXAS PROPERTY CODE §5.065
24. To the extent not inconsistent herewith, Denise Young (“Young”) incorporates by
reference the allegations made in paragraphs 1 through 13 as if set forth fully herein.
25. Pursuant to the provisions of the Texas Property Code, the holder of a note must
ordinarily give notice to the maker of the holder’s intent to accelerate the time for payment as
well as notice of acceleration. If the mortgagee intends lo accelerate Ue Maturity OF tie acvL, We
of
notice must unequivocally inform the mortgagor of the mortgagee’s intention. A proper notice
otherwise, the
default must give the borrower notice that the alleged delinquency must be cured;
the
loan will be accelerated and the property will go to foreclosure. Prior to a foreclosure action,
tion notice.
noteholder is also required to give the home owners clear and unequivocal accelera
Effective acceleration requires two acts: notice of intent to accelerate and notice of acceleration.
26. The actions committed by Loancare, LLC (“Loancare”) constitute violations of the
Texas Property Code §5.065 because Loancare never sent proper and timely notice of default, the
opportunity to cure the default, notice of intent to accelerate the debt, notice of acceleration, and
notice of foreclosure sale which are required in order for Loancare to foreclose on their lien rights
to the Property.
DAMAGES:
ACTUAL DAMAGES
27. Plaintiff is entitled to recover her actual damages from Defendant for which
Plaintiff pleads in an amount which does not exceed the jurisdictional limits of this Court.
EXEMPLARY DAMAGES
28. Plaintiff is entitled to recover her exemplary damages from Defendant for which
Plaintiff pleads in an amount which does not exceed the jurisdictional limits of this Court.
ATTORNEYS’ FEES
an. Plaintiff was forced to employ the undersigned attorneys to represent her and has
agreed to pay them reasonable attorneys’ fees for their services. Plaintiff is entitled to recover her
reasonable attorneys’ fees pursuant to Chapter 38 of the Texas Civil Practices & Remedies Code
for which Plaintiff pleads in an amount which does not exceed the jurisdictional limits of this
Court.
CONDITIONS PRECEDENT
30. All conditions precedent to the Plaintiff's right to bring these causes of action have
been performed, have occurred, or have been waived.
REQUEST FOR DISCLOSURES
ST, Defendant is hereby requested to disclose to Plaintiff, within 50 days of service of
this request, the information and material described in Rule 194 of the Texas Rules of Civil
Procedure.
APPLICATION FOR TEMPORARY RESTRAINING ORDER
32. To the extent not inconsistent herewith, Plaintiff incorporates by reference the
allegations made in paragraph 1 through paragraph 30 as if set forth fully herein.
33; Unless Defendant is enjoined, Plaintiff will suffer probable harm which is imminent
and irreparable. More specifically, if not enjoined, Defendant may sell the Property at any time
during the pendency of this matter thus depriving Plaintiff of ownership of the Property and
potentially causing Plaintiff to be dispossessed of the Property. Defendant has posted Plaintiff's
Property at a foreclosure sale on September 5, 2023. Plaintiff has no adequate remedy at law
because the subject matter is real property, and any legal remedy of which Plaintiff may avail
himself will not give her as complete, equal, adequate, and final a remedy as the injunctive relief
sought in this Application.
34, Therefore, Plaintiffs request that this Court issue a Temporary Restraining Order
and, thereafter, a Temporary Injunction, to restrain Defendant from taking any further foreclosure
action to sell the Property (including, but not limited to, sending notices of default, acceleration,
and foreclosure sale) which is the subject matter of this lawsuit and is commonly known as 4943
Hickory Branch Lane, Sugarland TX 77479.
ntly
a5. Plaintiff further requests that, upon trial on the merits, Defendant be permane
enjoined from the same acts listed in Paragraph 34 above.
36. Plaintiff is likely to prevail on the merits of the lawsuit as described above.
37. The granting of the relief requested is not inconsistent with public policy
considerations.
BOND
38. Plaintiff is willing to post a reasonable temporary restraining order bond and
requests that the Court set such bond
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that:
Defendant be cited to appear and answer herein;
The Court conduct a hearing on Plaintiff's Application for Injunctive Relief;
A temporary restraining order be issued restraining Defendant, their agents,
employees, and legal counsel, and those acting in concert or participation with
Defendant who receive actual notice of the Order, by personal service or
otherwise, from selling, or re-posting, the real property which is the subject matter
of this lawsuit and is commonly known as 4943 Hickory Branch Lane, Sugarland
TX 77479 at a foreclosure sale;
A Permanent Injunction be entered enjoining Defendant from the same acts listed in
Paragraph C above; and
Upon final hearing or trial hereof, the Court order a judgment in favor of Plaintiff
against Defendant for her actual damages, exemplary damages, reasonable attorneys”
fees, all costs of court, and such other and further relief, both general and special, at
law or in equity, to which Plaintiff may be entitled.
Respectfully Submitted by,
Law Office of Erick DeLaRue, PLLC
By /s/ Erick DeLaRue
ERICK DELARUE
Texas Bar No: 24103505
2800 Post Oak Boulevard, Suite 4100
Houston, TX 77056
Telephone: 713-899-6727
Email: erick.delarue@delaruclaw.com
ATTORNEY FOR PLAINTIFF
CAUSE NO.
DENISE YOUNG IN THE DISTRICT COURT OF
v. FORT BEND COUNTY, TEXAS
LOANCARE, LLC JUDICIAL DISTRICT
DECLARATION/VERIFICATION OF DENISE; YOUNG
“My name is Denise . Young. I am the Plaintiff in the above-captioned lawsuit. I have
res
read the Plaintiff's Original Petition, Application for Injunctive Relief, and Requests for Disclosu
ts and
to which this Declaration relates and offer this Declaration in support of the statemen
state that every factual
arguments asserted herein. I have personal knowledge of the facts therein and
involving
statement made is true and correct. I have never been convicted of a felony or other crime
moral turpitude.
~The foregoing is sworn to by penalty of perjury.
“My date of birth is NN, and my address is 4943 Hickory Branch Lane,
is truc
Sugar Land, Texas 77479. I declare under penalty of perjury that the foregoing information
and correct.”
Executed in Fort Bend County, State F Texas, on the 30th day of August, 3° a
DENISE .- CN
EXHIBIT 1
ee
“FILED
a AUG-8 ANID 6D
~
OT! TRUSTEE’ Beha
YSLERK
OUNTY. TEXAS
fH TS
INSTRU! NT APPOINTS THE St STIPE cR STE} 5)
[IDENTIFIED oO THE PROPERTY DB [BED
IN THE. $] CUE ai
INSTR Uj NT ID NTTETED INT) S NOTIC!
CH is AUTH ZED
H) PERSO SIGNIN NOTIC) ATTORNEY ©
AGENT OF THE MORTGAGEE OR MORTGAGE SERVICER.
Ay
Matter No.: 1 12727-1X
fi
Date: July 20, 2023
County where Real Property is Located: Fort Bend Y "ley
ORIGINAL MORTGAGOR: DENISE S. YOUNG, A SINGLE WOMAN
ORIGINAL MORTGAGEE: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC, AS
BENEFICIARY, AS NOMINEE FOR QUICKEN LOANS INC,, ITS
SUCCESSORS AND ASSIGNS
CURRENT MORTGAGEE: LOANCARE, LLC
MORTGAGE SERVICER: LOANCARE, LLC
DEED.O UST DA! Et RECORDING INFORecorded RMAT ION:
on 10/1/2015, as Instrument No.
Se b
C_misi21) di iy
modified on as Instrument 2017132350 on 12/4/2017
agreement recorded
2 loan modificati
a loan modification agreement recorded as Instrument 2022004347 on 01/10/2022
SUBJECT REAL PROPERTY (LEGAL DESCRIPTION): LOT TWENTY-NINE (29) IN BLOCK ONE (1), OF
AT RIVERSTONE SECTION FOUR (4), AN ADDITION IN FORT BENP COUNTY,
MILLWOOD
TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN/UNDER PLAT NO,
20140251 OF THE MAP/PLAT RECORDS OF FORT BEND COUNTY, TEXAS,
be conducted in
NOW, ‘THEREFORE, NOTICE IS HEREBY GIVEN thot on. 9/5/2023, the foreclosure sale will
Fort Bend County in the area designated by the Commissione rs Court, pursuant to Section 51.002 of the Texas
Property Code 96 the place where the foresales clog are to ure by the
teke place. Ef no place is designated
Court, sale will be conchicted at the place where the Notice of Trustee's Sale was
trustsaleee'swill be conductedno earlier than 1:00 PM, or not later than three (3) hours after that time, by onc of
owing on
Substitute Trustees who will sell, to the highest bidder for onsh, subject to the umpaid balance due and
the
any lien indebtedness superior to the Deed of Trust.
LOANCARE, LLC
LOANCARE, LLC is acting as the Mortgage Servicer for LOANCARE, who is the Mortgagee of the Note and
Deed of Trust associated with the above referenced loan.
LLC, a8 Mortgage Servicer, is representing
the Mortgages, whose address is:
LOANCARE, LLC
3637 SENTARA WAY
VIRGINIA BEACH, VA 23452-4262
‘The Mortgage Servicer is authorized to represent the Mortgages by viriue of a servicing agreement with the
Mortgages. Pursuant to the Servicing Agreement and Texas Property Code 51.0025, the Mortgage Servicer is
authorized to collect the debt and to administer any resulting foreclosure of the
property securing the above
referenced loan.
Page
1 of 2
eee
AP NOS/SOT 08212015
4792711
= tis
Matter No.: 112727-TX
WHEREAS,inin my capacity as attorney for the Mortgagee and/or Its Mortgage Servicer, and pursuant to Section
51.0076 of the Texas Property Code, | HEREBY APPOINT AND DESIGNATE CARL MEYERS, LEB KEMP,
TRACI YEAMAN, ISRAEL CURTIS, JOHN SISK, CLAY GOLDEN, STEPHEN MAYERS, COLETTE
MAYERS, THOMAS GILBRAITH, ‘LESTER, JOSHUA SANDERS, CARY CORENBLUM,
MATYHEW HANSEN, EVAN PRESS, RAMIRO CUEVAS, JAMI GRADY, ANNA SEWART, DAVID
BARRY, BYRON SEWART, PATRICIA POSTON, AUSTIN DUBOIS, NICK FRAME, CHEYANNE
‘TROUTT, SANDY DASIGENIS, JEFF LEVA, JOHN BURGER, MARTIN BELTRAN, AUCTION.COM,
MEGAN L. RANDLE, EBBIE MURPHY, WAYNE DAUGHTREY, STEVE LEVA, PAUL A. HORFKERor
either one of them, as Substitute Trustee, to act, either singly or jointly, under and by virtue of said Deed of Trust
and hereby request said Substitute Trustees, or any one of them to sell the property in said Deed of Trust described
andas de therein. The address for the Substitute Trustee as required by Texas Property Code, Section
51.0075(e)is Auction.com, 1 Mauchly, Irvine, CA 92618.
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Return to:
ALDRIDGE PITE, LLP
8880 RIO SAN DIEGO DRIVE,
SUITE 725
P.O. BOX 17935
SAN DIEGO, CA 92108-0935
FAX#: 619-590-1385
866-931-0036
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CAUSE NO. DENISE YOUNG IN THE DISTRICT COURT OF v. FORT BEND COUNTY, TEXAS LOANCARE, LLC ——_-__J JUDICIAL DISTRICT PLAINTIFF’S ORIGINAL PETITION, APPLICATION FOR INJUNCTIVE RELIEF, AND RE UEST FOR DISCLOSURES TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Denise Young, Plaintiff herein, filing this her Original Petition, Application for Injunctive Relief, and Request for Admissions against Loancare, LLC, Defendant herein, and for causes of action would respectfully show the Court as follows: DISCOVERY 1 Plaintiff intends to conduct discovery under Texas Rules of Civil Procedure 190.3 (Level 2). PARTIES 2 Denise Young is an individual who resides in Fort Bend County, Texas and may be served with process on the undersigned legal counsel. 3 Loancare, LLC is an entity conducts business in Fort Bend County, Texas and may be served with process as follows: Loancare, LLC c/o CT Corporation Services 1999 Bryan Street, Suite 900 Dallas, TX 75201 JURISDICTION AND VENUE 5. The Court has jurisdiction over Loancare, LLC because this Defendant conducts business Fort Bend County, Texas. 6. The Court has jurisdiction over the controversy because the damages are within the jurisdictional limits of the Court. Venue is mandatory in Fort Bend County, Texas because the subject matter of the lawsuit involves real property which is located in Fort Bend County, Texas. Further, all or a substantial part of the events or omissions giving rise to Plaintiff's causes of action against Defendant occurred in Fort Bend County, Texas thus venue is proper under §15.002(a)(1) of the Texas Civil Practice and Remedies Code. RELEVANT FACTS 4 The subject matter of the lawsuit is the real property and the improvements thereon located at 4943 Hickory Branch Lane, Sugarland TX 77479 (the “Property”). A Denise Young (“Young”) purchased the Property on or about September 30, 2015. During the process of purchasing the Property, Young executed a Note as well as a Deed of Trust in which Quicken Loans Inc. is listed as the Lender. 6 Upon information and belief, the Deed of Trust was subsequently transferred to Loancare, LLC (“Loancare”), under assignment, but the original Deed of Trust was not assigned properly. 7 The alleged assignment of the Deed of Trust does not meet the requisites of a valid assignment and, therefore, the chain of title is broken from the original lender. 8 Young consistently made her mortgage payments in a timely manner; however, she began to have financial difficulties due COVID related issues. Realizing that she may soon become in default on her mortgage payments, Young reached out to Loancare to obtain loss mitigation options. Unfortunately, Loancare was non-responsive and did not offer any options. 9 Accordingly, Young began researching other options including, but not limited to, selling her Property. Unfortunately, Young was not able to sell her home right away; however, she has now obtained several offers of which she expects to accept one of them very shortly. Young has requested an up-to-date payoff but she has not received one yet. 10. Young maintained her efforts to sell the Property; however, in August 2023, she was contacted by an investor wishing to purchase her Property to prevent the coming foreclosure sale scheduled for September 5, 2022. Apparently, Loancare posted Young’s Property for foreclosure sale without sending her proper and timely notice of default, an opportunity to cure the default, notice of intent to accelerate, notice of acceleration, and notice of foreclosure sale as required by the Texas Property Code thereby violating Young’s due process rights as well as the Deed of Trust. 11. Further, Plaintiff is informed and believes, and thereon alleges, that in order to conduct a foreclosure action, a person or entity must have standing under the deed of trust and statute. Plaintiff is informed and believes, and thereon alleges, that in order to assign a deed of trust, some person or entity must rightfully hold the note that the deed of trust secures payment on; an assignment of the mortgage note carries the deed of trust with it, while an assignment of the deed of trust alone is a nullity. 12. Loancare cannot produce any evidence that the Young’s mortgage note has ever been transferred to them. Any attempt to transfer the beneficial interest of a deed of trust without actual ownership of the underlying mortgage note is void under the law. Therefore, Loancare Loancare cannot establish that is entitled to assert a claim in this case such that the assignment to was effective at all. As such, Loancare does not have standing to foreclosure on the Property. 13. Accordingly, Plaintiff alleges that Loancare is attempting to wrongfully sell her Property at a foreclosure sale on July 5, 2022 in violation of the Deed of Trust, Texas Property Code, and Plaintiff's due process rights. CLAIMS AGENCY & RESPONDEAT SUPERIOR 14, Wherever it is alleged that Defendant did anything, or failed to do anything, itis meant that such conduct was done by Defendant’s employees, vice principals, agents, attorneys, and/or affiliated entities, in the normal or routine scope of their authority, or ratified by Defendant, or done with such apparent authority so as to cause Plaintiff to reasonably rely that such conduct was within the scope of their authority. Plaintiff did rely to Plaintiff's detriment on Defendant’s representatives being vested with authority for their conduct. Defendant is vicariously liable for the conduct of their employees, vice principals, agents, attorneys, affiliated entities, and representatives of Defendant’s affiliated entities by virtue of respondeat superior, apparent authority, and estoppel doctrines. FIRST CAUSE OF ACTION: DECLARATORY JUDGMENT 15. To the extent not inconsistent herewith, Denise Young (“Young”) incorporates by reference the allegations made in paragraphs | through 13 as if set forth fully herein. 16. Plaintiffs made, presented, or used the assignment associated with the mortgage loan with knowledge that the documents or other records are fraudulent court records or fraudulent liens or claims against the real property. Additionally, Defendant falsely and and fraudulently prepared documents required for Defendant to foreclose as a calculated fraudulent business practice. 17: Therefore, Plaintiff seeks a determination of the rights of the parties pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 37.001 (West). An actual controversy has arisen and now exists between Plaintiff and Defendant regarding their respective rights and duties, in that Plaintiff contends that Defendant did not have the right to foreclose on the Property because Defendant has failed to perfect any security interest in the mortgage note as a real party in interest. Thus, the purported power to foreclose, or even to collect monetarily on the note, does not now apply. 18. Plaintiff seeks a determination that Defendant is liable for having failed to properly record all releases, transfers, assignments or other actions relating to instruments Defendant filed or caused to be filed, registered or recorded in the deed of records of Texas in the same manner as the original instrument was required to filed, registered or recorded. 19. Plaintiff seeks a determination that the power of sale in the Deed of Trust has no force and effect at this time as to Defendant because Defendant’s actions in processing, handling, and foreclosure of this loan involved fraudulent, false, deceptive and/or misleading practices including, but not limited to, violations of Texas laws meant to protect the property records and property owner’s/mortgage borrowers. 20. Plaintiff seeks a determination that because Defendant does not have standing to initiate foreclosure of the property, that any and all notices sent by Defendant regarding default or foreclosure be declared invalid. 2A. Plaintiff seeks a declaratory judgment for quiet title, thereby voiding all documents on file indicating any interest of Defendant in the Property pursuant to the Deed of Trust, subsequent assignment thereof, appointment of substitute trustee documents and voiding any to peaceful interest in the name of Defendant in the Property. Furthermore, Plaintiff is entitled and quiet possession of the Property against Defendant now and forever. SECOND CAUSE OF ACTION: BREACH OF CONTRACT 22. To the extent not inconsistent herewith, Denise Young (“Young”) incorporates by reference the allegations made in paragraphs 1 through 13 as if set forth fully herein. 23. The actions committed by Loancare, LLC (“Loancare”) constitute breach of contract because! A There exists a valid, enforceable contract between Young and Loancare; B Young has standing to sue for breach of contract; Young performed, tendered performance, or was excused from performing her contractual obligations; Loancare breached the contract; and The breach of contract by Loancare caused Young’s injury. THIRD CAUSE OF ACTION: VIOLATION OF TEXAS PROPERTY CODE §5.065 24. To the extent not inconsistent herewith, Denise Young (“Young”) incorporates by reference the allegations made in paragraphs 1 through 13 as if set forth fully herein. 25. Pursuant to the provisions of the Texas Property Code, the holder of a note must ordinarily give notice to the maker of the holder’s intent to accelerate the time for payment as well as notice of acceleration. If the mortgagee intends lo accelerate Ue Maturity OF tie acvL, We of notice must unequivocally inform the mortgagor of the mortgagee’s intention. A proper notice otherwise, the default must give the borrower notice that the alleged delinquency must be cured; the loan will be accelerated and the property will go to foreclosure. Prior to a foreclosure action, tion notice. noteholder is also required to give the home owners clear and unequivocal accelera Effective acceleration requires two acts: notice of intent to accelerate and notice of acceleration. 26. The actions committed by Loancare, LLC (“Loancare”) constitute violations of the Texas Property Code §5.065 because Loancare never sent proper and timely notice of default, the opportunity to cure the default, notice of intent to accelerate the debt, notice of acceleration, and notice of foreclosure sale which are required in order for Loancare to foreclose on their lien rights to the Property. DAMAGES: ACTUAL DAMAGES 27. Plaintiff is entitled to recover her actual damages from Defendant for which Plaintiff pleads in an amount which does not exceed the jurisdictional limits of this Court. EXEMPLARY DAMAGES 28. Plaintiff is entitled to recover her exemplary damages from Defendant for which Plaintiff pleads in an amount which does not exceed the jurisdictional limits of this Court. ATTORNEYS’ FEES an. Plaintiff was forced to employ the undersigned attorneys to represent her and has agreed to pay them reasonable attorneys’ fees for their services. Plaintiff is entitled to recover her reasonable attorneys’ fees pursuant to Chapter 38 of the Texas Civil Practices & Remedies Code for which Plaintiff pleads in an amount which does not exceed the jurisdictional limits of this Court. CONDITIONS PRECEDENT 30. All conditions precedent to the Plaintiff's right to bring these causes of action have been performed, have occurred, or have been waived. REQUEST FOR DISCLOSURES ST, Defendant is hereby requested to disclose to Plaintiff, within 50 days of service of this request, the information and material described in Rule 194 of the Texas Rules of Civil Procedure. APPLICATION FOR TEMPORARY RESTRAINING ORDER 32. To the extent not inconsistent herewith, Plaintiff incorporates by reference the allegations made in paragraph 1 through paragraph 30 as if set forth fully herein. 33; Unless Defendant is enjoined, Plaintiff will suffer probable harm which is imminent and irreparable. More specifically, if not enjoined, Defendant may sell the Property at any time during the pendency of this matter thus depriving Plaintiff of ownership of the Property and potentially causing Plaintiff to be dispossessed of the Property. Defendant has posted Plaintiff's Property at a foreclosure sale on September 5, 2023. Plaintiff has no adequate remedy at law because the subject matter is real property, and any legal remedy of which Plaintiff may avail himself will not give her as complete, equal, adequate, and final a remedy as the injunctive relief sought in this Application. 34, Therefore, Plaintiffs request that this Court issue a Temporary Restraining Order and, thereafter, a Temporary Injunction, to restrain Defendant from taking any further foreclosure action to sell the Property (including, but not limited to, sending notices of default, acceleration, and foreclosure sale) which is the subject matter of this lawsuit and is commonly known as 4943 Hickory Branch Lane, Sugarland TX 77479. ntly a5. Plaintiff further requests that, upon trial on the merits, Defendant be permane enjoined from the same acts listed in Paragraph 34 above. 36. Plaintiff is likely to prevail on the merits of the lawsuit as described above. 37. The granting of the relief requested is not inconsistent with public policy considerations. BOND 38. Plaintiff is willing to post a reasonable temporary restraining order bond and requests that the Court set such bond PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that: Defendant be cited to appear and answer herein; The Court conduct a hearing on Plaintiff's Application for Injunctive Relief; A temporary restraining order be issued restraining Defendant, their agents, employees, and legal counsel, and those acting in concert or participation with Defendant who receive actual notice of the Order, by personal service or otherwise, from selling, or re-posting, the real property which is the subject matter of this lawsuit and is commonly known as 4943 Hickory Branch Lane, Sugarland TX 77479 at a foreclosure sale; A Permanent Injunction be entered enjoining Defendant from the same acts listed in Paragraph C above; and Upon final hearing or trial hereof, the Court order a judgment in favor of Plaintiff against Defendant for her actual damages, exemplary damages, reasonable attorneys” fees, all costs of court, and such other and further relief, both general and special, at law or in equity, to which Plaintiff may be entitled. Respectfully Submitted by, Law Office of Erick DeLaRue, PLLC By /s/ Erick DeLaRue ERICK DELARUE Texas Bar No: 24103505 2800 Post Oak Boulevard, Suite 4100 Houston, TX 77056 Telephone: 713-899-6727 Email: erick.delarue@delaruclaw.com ATTORNEY FOR PLAINTIFF CAUSE NO. DENISE YOUNG IN THE DISTRICT COURT OF v. FORT BEND COUNTY, TEXAS LOANCARE, LLC JUDICIAL DISTRICT DECLARATION/VERIFICATION OF DENISE; YOUNG “My name is Denise . Young. I am the Plaintiff in the above-captioned lawsuit. I have res read the Plaintiff's Original Petition, Application for Injunctive Relief, and Requests for Disclosu ts and to which this Declaration relates and offer this Declaration in support of the statemen state that every factual arguments asserted herein. I have personal knowledge of the facts therein and involving statement made is true and correct. I have never been convicted of a felony or other crime moral turpitude. ~The foregoing is sworn to by penalty of perjury. “My date of birth is NN, and my address is 4943 Hickory Branch Lane, is truc Sugar Land, Texas 77479. I declare under penalty of perjury that the foregoing information and correct.” Executed in Fort Bend County, State F Texas, on the 30th day of August, 3° a DENISE .- CN EXHIBIT 1 ee “FILED a AUG-8 ANID 6D ~ OT! TRUSTEE’ Beha YSLERK OUNTY. TEXAS fH TS INSTRU! NT APPOINTS THE St STIPE cR STE} 5) [IDENTIFIED oO THE PROPERTY DB [BED IN THE. $] CUE ai INSTR Uj NT ID NTTETED INT) S NOTIC! CH is AUTH ZED H) PERSO SIGNIN NOTIC) ATTORNEY © AGENT OF THE MORTGAGEE OR MORTGAGE SERVICER. Ay Matter No.: 1 12727-1X fi Date: July 20, 2023 County where Real Property is Located: Fort Bend Y "ley ORIGINAL MORTGAGOR: DENISE S. YOUNG, A SINGLE WOMAN ORIGINAL MORTGAGEE: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC, AS BENEFICIARY, AS NOMINEE FOR QUICKEN LOANS INC,, ITS SUCCESSORS AND ASSIGNS CURRENT MORTGAGEE: LOANCARE, LLC MORTGAGE SERVICER: LOANCARE, LLC DEED.O UST DA! Et RECORDING INFORecorded RMAT ION: on 10/1/2015, as Instrument No. Se b C_misi21) di iy modified on as Instrument 2017132350 on 12/4/2017 agreement recorded 2 loan modificati a loan modification agreement recorded as Instrument 2022004347 on 01/10/2022 SUBJECT REAL PROPERTY (LEGAL DESCRIPTION): LOT TWENTY-NINE (29) IN BLOCK ONE (1), OF AT RIVERSTONE SECTION FOUR (4), AN ADDITION IN FORT BENP COUNTY, MILLWOOD TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN/UNDER PLAT NO, 20140251 OF THE MAP/PLAT RECORDS OF FORT BEND COUNTY, TEXAS, be conducted in NOW, ‘THEREFORE, NOTICE IS HEREBY GIVEN thot on. 9/5/2023, the foreclosure sale will Fort Bend County in the area designated by the Commissione rs Court, pursuant to Section 51.002 of the Texas Property Code 96 the place where the foresales clog are to ure by the teke place. Ef no place is designated Court, sale will be conchicted at the place where the Notice of Trustee's Sale was trustsaleee'swill be conductedno earlier than 1:00 PM, or not later than three (3) hours after that time, by onc of owing on Substitute Trustees who will sell, to the highest bidder for onsh, subject to the umpaid balance due and the any lien indebtedness superior to the Deed of Trust. LOANCARE, LLC LOANCARE, LLC is acting as the Mortgage Servicer for LOANCARE, who is the Mortgagee of the Note and Deed of Trust associated with the above referenced loan. LLC, a8 Mortgage Servicer, is representing the Mortgages, whose address is: LOANCARE, LLC 3637 SENTARA WAY VIRGINIA BEACH, VA 23452-4262 ‘The Mortgage Servicer is authorized to represent the Mortgages by viriue of a servicing agreement with the Mortgages. Pursuant to the Servicing Agreement and Texas Property Code 51.0025, the Mortgage Servicer is authorized to collect the debt and to administer any resulting foreclosure of the property securing the above referenced loan. Page 1 of 2 eee AP NOS/SOT 08212015 4792711 = tis Matter No.: 112727-TX WHEREAS,inin my capacity as attorney for the Mortgagee and/or Its Mortgage Servicer, and pursuant to Section 51.0076 of the Texas Property Code, | HEREBY APPOINT AND DESIGNATE CARL MEYERS, LEB KEMP, TRACI YEAMAN, ISRAEL CURTIS, JOHN SISK, CLAY GOLDEN, STEPHEN MAYERS, COLETTE MAYERS, THOMAS GILBRAITH, ‘LESTER, JOSHUA SANDERS, CARY CORENBLUM, MATYHEW HANSEN, EVAN PRESS, RAMIRO CUEVAS, JAMI GRADY, ANNA SEWART, DAVID BARRY, BYRON SEWART, PATRICIA POSTON, AUSTIN DUBOIS, NICK FRAME, CHEYANNE ‘TROUTT, SANDY DASIGENIS, JEFF LEVA, JOHN BURGER, MARTIN BELTRAN, AUCTION.COM, MEGAN L. RANDLE, EBBIE MURPHY, WAYNE DAUGHTREY, STEVE LEVA, PAUL A. HORFKERor either one of them, as Substitute Trustee, to act, either singly or jointly, under and by virtue of said Deed of Trust and hereby request said Substitute Trustees, or any one of them to sell the property in said Deed of Trust described andas de therein. The address for the Substitute Trustee as required by Texas Property Code, Section 51.0075(e)is Auction.com, 1 Mauchly, Irvine, CA 92618. rt rat yoy f th un edf es you are or yor 1m inc] ling 2¢ aty rv m7 cs Uniti ritte ive tuty Ditery or of Oh £4 PanlA. Nice the , Attomey 8880 San Di an Diego Drive, Suite 725 Nifornia 92108 MN OF Ley, Return to: ALDRIDGE PITE, LLP 8880 RIO SAN DIEGO DRIVE, SUITE 725 P.O. BOX 17935 SAN DIEGO, CA 92108-0935 FAX#: 619-590-1385 866-931-0036