Preview
FILED
4/1/2024 12:00 AM
FELICIA PITRE.
DISTRICT CLERK
DALLAS CO., TEXAS
Fernando Soto DEPUTY
DC-24-04614
Cause No.
Samuel Ramirez, § IN THE DISTRICT COURT OF
Plaintiff), §
8
v
§ DALLAS COUNTY, TEXAS
DEUTSCHE BANK NATIONAL 298th
TRUST COMPANY, AS TRUSTEE
FOR MORGAN STANLEY ABS JUDICIAL DISTRICT
CAPITAL LINC. TRUST 2007-NC1
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-NC1,
Defendant(s),
URIGINAL PETITION
ORIGINAL
PLAINTIFF’
PLARNITIBE’ FEI eee DECLARATORY
FOR ee ee e AND
JUDGMENT
APPLICATION FOR TEMPORARY RESTRAINING ORDER AND INJUNCTIVE RELIEF
TO THE HONORABLE JUDGE OF THE COURT:
NOW COMES Samuel Ramirez, the Plaintiff, complaining of Defendant DEUTSCHE BANK
NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL INC.
TRUST 2007-NC1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-NC1, and would
show the Court the following:
Discovery Control Plan
Samuel Ramirez proposes that discovery in this case be conducted under Discovery Control Plan
Level 2. Tex. R. Civ. P. 190.3
Parties
Samuel Ramirez is a natural person whose residence and homestead is situated in DALLAS
County Texas.
Defendant, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR
MORGAN STANLEY ABS CAPITAL I INC. TRUST 2007-NC1 MORTGAGE PASS-
THROUGH CERTIFICATES, SERIES 2007-NC1, is a national banking company and may be
served with process by and through its registered agent, Registered Agent Solutions, Inc., at 211
E. 7* St. Suite 620, Austin, Texas 78744
Venue and Jurisdiction
4 This Court has jurisdiction over the subject matter of this case because the amount in controversy
AND FOR TRO AND INJUNCTIVE RELIEF
PLAINTIFF'S PETITION DECLARATORY JUDGEMENT Page 1
exceeds this Court’s minimum jurisdictional requirements.
The Court has personal jurisdiction over the Defendant under Sec. 17.003 of the Texas Civil
Practices and Remedies Code, because the real property, the subject of this lawsuit, is located in
Texas.
Venue in DALLAS County, Texas is proper in this cause under Section 15.011 of the Texas Civil
Practice and Remedies Code because the real property, the subject of this law suit, is situated in
DALLAS County, Texas.
Brief Summary
The April 2, 2024, scheduled substitute trustee sale of the Property (the “Substitute Trustee Sale”)
is unlawful because the Plaintiff, through his attorney James Minerve, sent the Defendant a
Qualified Written Request (“QWR”), pursuant to RESPA, 12 USC §2605(e); however, the
Defendant did not cancel the Substitute Trustee Sale until the loan servicer fully responds to the
QWR as required under 12 C.F.R 1024.35(b)(9) and (10) and 1024.35(e)(3)()(B). Furthermore,
the Defendant violated the Dual Tracking Provisions of Regulation X (RESPA) 12 CFR
1024.41(g); Additionally, the 736 Order, required to foreclose on an equity lien is automatically
stayed upon the filing of this Petition.
Factual Background
The Property
The Plaintiff is the owner of 308 N Forest Crest Drive, Garland, Texas 75042 (“Homestead”
or “Property” or “real property”). The Plaintiff resides at this address, which is his homestead.
The Deed of Trust
August 21, 2006, the Plaintiff closed on a Home Equity Note for $88,250, securing the equity
lien by a Deed of Trust (“DOT”). See Exhibit A
The Defendant's equity lien is a lien created under Texas Constitution, Article XVI, §50a(6).
See Exhibit B
10 The original mortgagee is Home123 Corporation
The current mortgagee is DEUTSCHE BANK NATIONAL TRUST COMPANY, AS
TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2007-NCI
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-NC1
12. The current loan servicer is PHH Mortgage Corporation
13. Attorneys of the Mackie, Wolf, Zientz, & Mann, P.C. are designated as the purported Current
Page 2
PLAINTIFF'S PETITION DECLARATORY JUDGEMENT ‘AND FOR TRO AND INJUNCTIVE RELIEF
Trustee
14, Recently, the purported substitute trustee filed a notice of the Substitute Trustee Sale with the
County Clerk of DALLAS County
15. According to a recent Broker’s Price Opinion, the current market value of the property is
$262,000.00
16 The approximate monthly payment is $984.94.
17 The approximate amount in arrears is $19,578.26.
18 The estimated payoff is approximately $77,000.
19 The Plaintiff has approximately $185,000 of equity in the Property.
20. The Plaintiff has never applied for a temporary restraining order or filed bankruptcy to stop a
foreclosure.
21 The Plaintiff has a buyer ready, willing and able under a purchase contract that will close
within 30 days and pay off the Defendant in full. See Exhibit C
Qualified Written Request re: Notice of Error Prohibiting Foreclosure
22. Friday, March 22, 2024, the Plaintiff, through his attorney James Minerve, sent the loan
servicer a QWR pursuant to RESPA, 12 USC §2605(e). See Exhibit D and E
23 The QWR included a notice of error that 12 C_F.R. 1024.41(g) prohibited the loan servicer
from foreclosing. See Exhibit F
24. Regulation X, 12 C.F.R. 1024.35(b)(9) and (10) and 1024.35(e)(3)(i){(B) prohibit a loan
servicer from foreclosing on a borrower before fully responding to a QWR or correcting the
errors pointed out in the QWR relating to12 C.F.R 1024.41(g). See Exhibit G
25 Neither the Defendant nor the Current Loan Servicer have responded to the Plaintiff's QWR.
Therefore, the April 2, 2024, scheduled Substitute Trustee Sale of the property is unlawful.
26. If the foreclosure is not postponed until the loan servicer responds to the QWR, the Plaintiff
will suffer irreparable harm by losing title to his homestead and $185,000 of equity in the
Property
Loss Mitigation Application
27 In January 2024, the Plaintiff submitted a completed loan modification application to the loan
servicer. On that date the Plaintiff submitted all required completed loan modification forms,
signed and dated, and submitted all required supporting documents, as specified on the loan
servicer’s Website.
=
Page 3
PLAINTIFF'S PETITION DECLARATORY JUDGEMENT AND FOR TRO AND INJUNCTIVE RELIEF F
28. To date none of the representatives of the loan servicer have sent the Plaintiff a rejection letter
denying the loss mitigation application and explaining that the Plaintiff is ineligible for any loss
mitigation relief, and the appeal process has been exhausted or is inapplicable, as required by
12 CER 1024.41(g).
TRCP 736 Order
29 In order to foreclose under a lien created under Texas Constitution, Article XVI, §50a(6), such
as the Defendant’s equity lien, the Defendant must obtain a court order, and the Texas
Legislature prescribed Texas Rules of Civil Procedure (TRCP), Rule 736 Orders for this
purpose. See Exhibit H
30. March 4, 2024, the Defendant obtained a Rule 736 Order to Foreclose on the DOT, Cause DC-
23-14760, as required by TRCP 736.
31 Under TRCP 736.11, entitled “Automatic Stay and Dismissal, If Independent Suit Filed,” a
Rule 736 Order to foreclose is automatically stayed upon the borrower filing an independent
original petition in a court of competent jurisdiction that puts in issue any matter related to the
origination, servicing, or enforcement of the loan agreement, contract, or lien soughtto be
foreclosed prior to 5:00 p.m. on the Monday before the scheduled foreclosure sale. See Exhibit
I
32. The dual tracking violation under Regulation X, 12 C.F.R 1024.35(b\(9) and (10) and
1024.35(e)(3)(iXB) and 12 CFR 1024.41(g), stated above, relate to the enforcement of
Defendant’s equity lien. Therefore, the Rule 736 Order, Cause DC-23-14760, is automatically
stayed.
Arguments
Violation of Dual Tracking Provisions of Regulation X,
12 C.F.R 1024.35(b)(9) and (10) and 1024.35(e)(3){i)(B) and 12 CFR 1024.41(g)
33 The Substitute Trustee Sale is unlawful because the Plaintiff, through his attorney, sent the
Defendant a QWR, pursuant to RESPA, 12 USC § 2605( e); however, the Defendant did not
cancel the Substitute Trustee Sale until the loan servicer fully responds to the QWR as required
under the statute and regulations.
34, As stated, Friday, March 22, 2024, the Plaintiff, through his attorney James Minerve, sent the
Defendant a QWR pursuant to RESPA, 12 USC §2605(e).
35. The QWR included a notice of error that 12 C.F.R 1024.35(b)(9) and (10) and
Page 4
PLAINTIFF'S PETITION DECLARATORY JUDGEMENT AND FOR TRO AND INJUNCTIVE RELIEF
1024.35(e)(3)(i)(B) and 12 CFR 1024.41(g) prohibited the loan servicer from foreclosing until
the loan servicer corrected the error and fully responded to the QWR.
36 Regulation X, 12 C.F.R 1024,35(b)(9) and (10).and 1024.35(e)(3)(i)(B) prohibit a loan
servicer from foreclosing on a borrower before fully responding to a QWR or correcting the
errors pointed out in the QWR relating to 12 CFR 1024.41(g).
37 The loan servicer has not responded to the Plaintiff's QWR. Therefore, the April 2, 2024,
scheduled Substitute Trustee Sale of the property is unlawful.
38 Violation of RESPA, 12 USC § 2605(e) provides a private right of action for borrowers of
federally related loans. Henok y. Chase Home Finance, LLC, 915 F.Supp.2d 109
(D.D.C.2013) (stating, “Mortgagor’s allegation that he sent letters to mortgagee and its
foreclosure agent requesting cure amount before the foreclosure on his property and that
mortgagee and its agent failed to respond to the letters stated a claim against mortgagee under
RESPA for failure to respond to borrower inquires, where mortgagor attached two letters
addressed to mortgagee and agent which included name of mortgagor, address of property. and
directly requested amount to cure his default.”).
39 Upon receipt of a valid QWR including a notice of error relating 12 CFR 1024.41(g), 12
C.F.R 1024,35(b)(9) and (10) and 1024.35(e)(3)(i)(B) require a mortgagee and joan
servicer to stop the foreclosure process. Stroman v. Bank of America Corp., 852 F Supp.2d
1366, (N.D.Ga. 2012) (stating, “Mortgagor stated a claim for violation of RESPA, by alleging
that loan servicers failed to timely and properly acknowledge and respond to her qualified
written requests (QWRs), some of which she attached to her complaint as an exhibit, failed to
take corrective action identified in the QWRs, failed to provide her information requested in the
OQWRs, failed to cease their collection efforts after receiving the QWRs, and provided
ettoneous information to credit bureaus related to alleged overdue payments disputed in her
QWRs, which damaged her credit score and reduced her access to credit.”).
40. As stated above, the DOT is a federally related loan subject to federal regulations (See Exhibit
A, DOT, page 11, Section 15).
4] The damages the Plaintiff must plead under RESPA is met by including allegations in this
petition that allege the Plaintiff will suffer irreparable harm unless the foreclosure sale is
postponed. Agustin v. PNC Financial Services Group, Inc., 707 F.Supp.2d 1080 (D. Hawaii,
2010) (stating, “Allegations that borrowers sent written requests to lender for information
—
INJUNCTIVE RELIEF Page S
PLAINTIFF'S PETITION DECLARATORY JUDGEMENT AND FOR TRO AND
relating to home refinancing !oans, and that lender failed to take action with respect to these
requests, causing them actual damages, were sufficient to state a claim under Real Estate
Settlement Procedures Act (RESPA), even though borrowers did not plead pecuniary
damages.”)..
Tex Const, Art XVI, §50a(6)(Q)
42. In order to foreclose under a lien created under Texas Constitution, Article XVI, §50a(6), such
as the Defendant’s equity lien, the Defendant must obtain a court order, and the Texas
Legislature prescribed Texas Rules of Civil Procedure (TRCP), Rule 736 Orders for this
purpose.
43 March 4, 2024, the Defendant obtained a Rule 736 Order to Foreclose on the DOT, Cause DC-
23-14760, as required by TRCP 736.
44 Under TRCP 736.11, entitled “Automatic Stay and Dismissal, If Independent Suit Filed,” a
Rule 736 Order to foreclose is automatically stayed upon the borrower filing an independent
original petition in a court of competent jurisdiction that puts in issue any matter related to the
origination, servicing, or enforcement of the loan agreement, contract, or lien sought to be
foreclosed prior to 5:00 p.m. on the Monday before the scheduled foreclosure sale.
45 The dual tracking violation under Regulation X, 12 C.F.R 1024.35(b)(9) and (10) and
1024.35(e)(3)(i(B) and 12 C.F.R 1024.41(g), stated above, relate to the enforcement of
Defendant’s equity lien. Therefore, the Rule 736 Order, Cause DC-23-14760, is automatically
stayed.
Conditions Precedent
46. Pursuant to Rule 54 of the Texas Rules of Civil Procedure, all conditions precedent have been
performed or have occurred.
Request for Temporary Restraining Orde:
47, Plaintiff requests the Court to dispense with the issuance of a bond, and Plaintiff requests that the
Defendant be temporarily restrained, without hearing, and upon notice and hearing be temporarily
enjoined, pending further order of this Court, from foreclosing on the Deed of Trust
48. If a temporary restraining order is not issued today, the Defendant will sell the Plaintiff homestead
and the Plaintiff will be irreparably harmed as stated in the attached affidavit.
PLAINTIFF'S PETITION DECLARATORY JUDGEMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 6
49. The Plaintiff is likely to succeed on the merits because, as stated above. the Defendant committed
dual tracking violations under Regulation X, 12 CFR 1024.35(b)(9) and (10) and
1024.35(e)(3)()(B) and 12 CFR 1024.41(g), and the Rule 736 Order is automatically stayed
50. Granting the temporary restraining order is in the public interest, because enforcing contracts and
discouraging foreclosures are in the public interest.
51 The Defendant may simply foreclose in 30 days, or recoup whatever expenses incurred by not
foreclosing from the Plaintiff, which is permitted by the Deed of Trust; therefore, the potential harm
to the Defendant is outweighed by the potential irreparable harm to the Plaintiff.
Request for Tem) Order
$2 Plaintiff request that the Court, after notice and a hearing, without the necessity of a bond and to
make temporary orders and issue any appropriate temporary injunctions deemed necessary and
equitable by the Court.
Attorney’s Fees
33 Under Section 37.009, Tex Civ. Prac. & Rem Code, Samuel Ramirez requests that the Court award
them costs and reasonable and necessary attorneys’ fees as are equitable and just against
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN
STANLEY ABS CAPITAL I INC. TRUST 2007-NC1 MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-NC1
Praye
WHEREFORE, PREMISES CONSIDERED, the Plaintiff Samuel Ramirez prays for the following:
54. Prayer for Declaratory Relief
55. WHEREFORE Plaintiff prays that after notice and hearing the Court declares the Substitute Trustee
Sale of the Property is unlawful and must be postponed until: (a) the loan servicer or the Defendant
fully responds to the Plaintiff QWR; and (b) the loan servicer or the Defendant provides Plaintiff
with a rejection letter as required by the dual tracking provisions of Regulation X.
56. Prayer for Relief
WHEREFORE Plaintiff prays that the Court immediately grant a temporary restraining order
restraining Defendant, in conformity with the allegations of this Plaintiff, from the acts set forth
—
PLAINTIFF'S PETITION DECLARATORY JUDGEMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 7
above. and Plaintiff prays that, after notice and hearing, this temporary restraining order be made a
temporary injunction.
i Plaintiff prays that the Court, in addition to the temporary restraining orders and temporary
injunction order prayed for above, after notice and hearing, grant a temporary injunction
enjoining Defendant, in conformity with the allegations of this Petition from the acts set forth
above while this case is pending, and enter temporary orders as requested above
Plaintiff prays for expenses, costs and interest as allowed by law.
Plaintiff prays for general relief.
Respectfully submitted,
/s/ James Minerve
James Minerve
State Bar No. 24008692
13276 N Highway 183, ste. 209
Austin, Texas 78750
(888) 819-1440 (Office)
(210) 336-5867 (Cell)
(888) 230-6397 (Fax)
Email: jgm@minervelaw.com
Attorney for Plaintiff Samuel Ramirez
= a
AND
PLAINTIFF'S PETITION DECLARATORY JUDGEMENT FOR TRO AND INJUNCTIVE RELIEF Page 8
CERTIFICATE OF SERVICE
Ihereby certify that a true and correct copy of the above and foregoing document was sent to the
following in accordance with the Texas Rules of Civil Procedure on this 30" day of March 2024:
Corporation Service Company, registered agent for
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS
CAPITAL I INC. TRUST 2007-NC1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-
NCI
211 E. 7 St., Suite 620
Austin, Texas 78701
/s/ James Minerve
James Minerve
PLAINTIFF'S PETITION DECLARATORY JUDGEMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 9
GENERAL AFFIDAVIT
State of Ts §
fullas §
County of
‘Tai oh
BEFORE ME, the undersigned Notary, i this
40 _ day of March
2024
personally sppesred Samuel Ramirez, known to me to be # credible person of lawful age, who being
by me first duly swom, on his osth, deposes and says:
1 I, Samuel Ramirez, am a natural person whose homestead is in DALLAS County Texas. I
have personal knowledge of the facts stated below, [ understand
that I can be held
criminally responsible if I lie in this statement. This statement is true.
The Apmil 2, 2024, scheduled substitute trustee sale of the Property (the “Substitute Trustee
Sale”) is unlawful because I, through
his attorney James Minerve, sent the Defendanta
Qualified Writeen Request (“QWR”), pursuant to RESPA, 12 USC §2605(e); however,
the Defendant
did not cancel the Substitute Trustee Sale until the loan servicer fully
responds
to the QWR as required under 12 C.F.R 1024.35{b\9) and (10) and
1024.35(e}(3)iXB). Furthermore, the Defendant violated
the Dual Tracking Provisions of
Regulation X (RESPA) 12 CFR 1024.41(g); Additionally, the 736 Order, required to
foreclose on an equity lien is satomatically stayed upon the filing of this Petition.
Tam the owner of 308 N Forest Crest Drive, Garland, Texas 75042 (“Homestead”or
“Property” or “real property”). I reside at this address, which is my homestead.
August 21, 2006, I closed on a Home Equity Note for $88,250, securing
the equity lienby
a Deed of Trust (“DOT”). See ExhibitA
The Defendant’
s equity lien is a lien created under Texas Constitution, Article XVI,
§50a(6). See Exhibit B
The original mortgagee is Home123 Corporation
‘The current mortgagee is DEUTSCHE BANK NATIONAL TRUST COMPANY, AS
TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2007-NC1
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-NC1
The current
loan servicer is PHH Mortgage Corporation
Attomeys
of the Mackie, Wolf, Zientz,
& Mann, P.C. are designated
as the purported
Current Trustee.
10. Recently, the purported substitute trustee filed a notice of the Substitute Trustes Sale with
the County Clerk of DALLAS County.
i Accordingto a recent Broker's Price Opinion, the current
market value of the property is
Page
1 of 3
GENERAL AFFIDAVIT continued
$262,000.00.
12. The approximate monthly payment is $984.94.
13. ‘The approximate amount in arrears is $19,578.26.
14 The estimated payoff is approximately $77,000.
15. Thave approximately $185,000 of equity in the Property.
16. T have never applied for a temporary restraining order or filed bankruptcy to stop a
foreclosure.
17.1 have a buyer ready, willing and able under a purchase contract that will close within 30 days
and pay off the Defendantin full. See Exhibit C
18. Friday, March 22, 2024, L through my attorney James Minerve, sent the loan servicer a
QWR pursuant to RESPA, 12 USC §2605{e). See Exhibit D and E
19. of error that 12 C.F.R. 1024.41(g) prohibited the loan servicer
The QWR included a notice
from foreclosing. See Exhibit F
20. Regulation X, 12 CF.R. 1024.35(bX9) and (10) and 1024.35(e)(3iXB) prohibit a loan
servicer from forectosing on a borrower before fully responding to a QWR or correcting
the errors pointed out in the QWR relating tol2 C-F.R 1024.41(g). Sec Exhibit G
21 Neither the Defendant nor the Current Loan Servicer
have responded to my QWR.
Therefore, the April 2, 2024, scheduled Substitute Trustee Sale of the property
is unlawful.
If the foreciosure is not postponed until the loan servicer responds to the QWR, Iwill suffer
irreparable
harm by losing title to his homestead
and $185,000
of equity in the Property.
In January 2024, I submitted 2 completed loan modification application to the loan
servicer. On that date I submitted
all required completed loan modification forms, signed
and dated, and submitted ali required supporting documents, as specified on the loan
servicer’s Website.
To date none of the representatives of the loan servicer have sent me a rejection letter
denying the loss mitigation application and explaining that ! am ineligible for any loss
mitigation relief, and the appeal process has been exhausted or is inapplicable, as required
by 12 CFR 1024.41(g).
25. In ordersto foreclose under a lien created under Texas Constitution, Article XVI, §50a(6),
such as the Defendant's
equity lien, the Defendant must obtain a court order, and the Texas
Legislature prescribed Texas Rules of Civil Procedure (TRCP), Rule 736 Orders for this
Page
2 of 3
GENERAL AFFIDAVIT CONTINUED
purpose.
26. March 4, 2024, the Defendant obtained a Rule 736 Orderto Foreclose on the DOT, Cause
DC-23-14760, as required by TRCP 736
27 Under TRCP 736.11, entitied “Automatic Stay and Dismissal, If Independent Suit Filed,”
Rule 736 Order to forectose is automatically stayed upon the borrower filing an
independent original petition in a court of competent jurisdiction that puts in issue any
matter related to the origination, servicing, or enforcement of the toan agreement, contract,
or lien sought
to be foreclosed prior
to 5:00 p.m. on the Monday before the scheduled
foreclosure sale. See Exhibit H
The dual tracking violation under Regulation X, 12 C.F.R 1024.35(b)(9) and (10) and
1024.35(e)(3)GX(B) and 12 C.F.R 1024.41(g), stated above, relates to the enforcementof
dant”s equity lien. Therefore, the Rule 736 Order, Cause DC-23-14760, is
stayed.
1 Ramirez
308 N Forest Crest Drive,
Garland, Texas 75402
State of T §
County of. Pullas §
day of ch 2024,
by Samuel mirez
Sworn to and subscribed before me on the 0
fo wp
{EVIN BIERWIRTH —<
18 PGS
~ 2ANGNNSO5AS
[BIT
Return To:
Home123 Corporation
3351 Michelson Drive,
Ste 400
yessqosee
Irvine, CA 92612
Prepared By:
ly
Homel23 Corporation
3351 Michelson Drives,
te 400
Irvine, CA 92612
————-[Snmce Above This Line far Recording Datal
THIS SECURITY INSTRUMENT SECURES AN EXTENSION OF CREDIT AS DEFINED BY
SECTION 50(a)(6), ARTICLE XVI OF THE TEXAS CONSTITUTION,
TEXAS HOME EQUITY SECURITY INSTRUMENT
(First Lien)
MIN 100488910093251499
This Security Instrument is not intended to finance Borrower's acquisition of the Property.
DEFINITIONS
Words used in multiple sections of this document are defined below and other words are defined in
Sections 3, 10, 12, 17, 19, 20 and 21. Certain rules regarding the usage of words used in this document
are also provided in Section 15.
{A) "Security Instrument" means this document, which is dated August 21, 2006
together with all Riders to this document.
(B) "Borrower" is SANDRA RAMIREZ AND BUSBAND, SAMUEL RAMIREZ
Borrower is the grantor under this Security Instrument.
1009329149
ee HOME EQUITY SECURITY INSTRUMENT (First Lien) Fannie Mae/Freddie Mac UNIFORM INSTRUMENT WITH
804617) (9506) Form 3044, 1 1/01
BorShe
rev. 10/03), -
Page 1 ol 18 Inia:
MP Morigaga Solutions, inc; (800)521-7201
a es
(C) "Lender" is Home123 Corporation
Lender is a Corporation
organized and existing under the laws of California
Lender's address is 3351 Michelson Drive, Ste 400, Irvine, CA 92612
Lender includes any holder of the Note who is entitled to receive payments under the Note.
(D) "Trustee" is Eldon L. Youngblood
. Trustee's. address is
2711 North Haskell Avenue, Suite 2700 LB 25, Dallas, Texas 75204
(E) "MERS" is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is
acting solely as a nominee for Lender and Lender's successors and assigns. MERS is the beneficiary
vader this Security Instrument. MERS is organized and existing under the Jaws of Delaware, and has an
address and telephone number of P.O. Box 2026, Flint, MI 48501 - 2026, tel. (888) 679-MERS.
(F) "Note" means the promissory note signed by Borrower and dated August 21, 2006
The Note states that Borrower owes Lender EIGHTY-EIGHT THOUSAND TWO HUNDRED FIFTY AND
00/100 Dollars
(U.S. $88,250.00 ) plus interest. Borrower has promised to pay this debt in regular Periodic
Payments and to pay the debt in full nut later than 09/02/2036
(G) "Property" means the property that is described below under the heading "Transfer of Rights in the
Property.”
(1) "Extension of Credit” means the debt evidenced by the Note, as defined by Section 50(a)(6), Asticle
XVI of the Texas Constitution and all the documents executed in connection with the debt,
(D “Riders” means all riders to this Security Instrument that are executed by Borrower. The following
riders are to be exceuted by Borrower [check box as applicable|:
{] Texas Home Equity Condominium Rider (71 otter:
(J texas Home Equity Planned Unit Development Rider
(@) "Applicable Law" mean s all controfling applicable federal, state and local statutes, regulations,
ordinances and administ rules and orders (that have the cffect of law) as well as ail applicable final,
non-appealable judicial opinions.
(K) “Community Association Ducs, Fees, and Assessments" means all dues, fees, assessments and other
charges that are imposed on Borrower or the Property by a condominium association, homeowners
association or similar organization.
(L) "Electronic Funds Transfer" means any transfer of funds, other than a transaction originated by
check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic
instrument, computer, or magnetic tape so as to order, instruct, or authorize a financial institution to debit
or credit an account. Such term includes, but is not limited to, point-of-sale transfers, automated tcllcr
machine transactions, transfers initiated by telephone, wire transfers, and automated clearinghouse
transfers.
(M) "Escrow tfems" means those items that are described in Scction 3.
(N) "Miscellancous Proceeds" means any compensation, settlernent, award of damages, or proceeds paid
by any third party (other than insurance proceeds paid under the coverages described in Section 5) for: (i)
damage to, or destruction of, the Property; (ii) condemnation or other taking of all or any part of the
1009329149
teats SOO
Sp ster) (0508) Paye
2 of 18 Form 3044.4 1/01 ( rev. 10/03)
_—=
Property; (iii) conveyance in ficu of condemnation; or (iv) misrepresentations of, or omissions as to, the
value and/or condition of the Property.
(O) “Periodic Payment" means the regularly scheduled amount due for (i) principal and interest under the
Note, plus (ii) any amounts under Section 3 of this Security Instrument.
(P) "RESPA" means the Real Estate Settlement Procedures Act (12 U.S.C. Section 2601 et seq.) and its
implementing regulation, Regulation X (24 C.F.R. Part 3500), as they might be amended from time to
time, or any additional or successor legislatian or regulation that yaverns the same subject matter. As used
in this Security Instrument, "RESPA" refers to all requirements and restrictions that are imposed in regard
to a “federatly related mortgage joan" even if the Extension of Credit does not qualify as a "federally
related mortgage loan" under RESPA.
(Q) "Successor in Interest of Borrower" means any party that has taken title to the Property, whether or
not that party has assumed Borrower's obligations under the Note and/or this Security Instrument.
TRANSFER OF RIGHTS IN THE PROPERTY
The beneficiary of this Security Instrument is MERS (solely as nomince for Lender and Lender's
successors and assigns) and the successors and assigns of MERS. This Security Instrument secures (o
Lender: (i) the repayment of the Extension of Credit, and all extensions and modifications of
the Note; and (ti) the performance of Borrower's ‘covenants and agreements under this
Security Instrument and the Note. For this purpose, Borrower irrevocably grants and conveys to Trustee,
in trust, with power of sale, the following described Property located in the
County of Dallas
[Type of Recording Jurisdiction} [Name of Recording Jurisdiction]
BEING Lot 1, Block 4, of FOREST CREST ADDITION, an Addition to the City
of Garland, Dallas County, Texas, according to the plat thereof recorded
in Volume 42, Page 53, of the Map Records of Dalias County, Texas.
Parcel ID Number: 26-17950-004-001-0000 which currently has the address of
308 N Forest Crest Drive (Street)
Garland [City], Texas 75042- [Zip Code]
("Property Address"):
TOGETHER WITH all the improvements now or hereafter erected on the Property, and all
easements, appurtenances, and fixtures now or hercafter a part of the Property. All replacements and
additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this
Security Instrument as the "Property"; provided however, that the Property is limited to homestead
1009329149
veo SKQ
Bp s048iTx) (0508) Page
3 of 18 Form 3044.1 1/01 { rev. 10/03)
= —
property in a cordance with Section S0(a)(6)(H). Article XVI of the Texas Constitution. Borrower
understands and agrees that MERS holds only legal title to the interests granted by Borrower in this
Security (nsteument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and
Lender’s successors and assigns) has the right: a exercise any or all of those interests, including, but not
limited to, the right to foreclose and sell the Property; and to take any action required of Lender including,
but not limited to, releasing and canccling this Security Instrument
BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has
the right fo grant and convey the Property and that the Property is unencumbered, except for encumbrances
of record. Borrower warrants an id will defend generally the title to the Property against all claims and
demands, subject ta any encumbrances of record.
Borrower and Lender covenant and agree as follows:
duc
1. Payment of Principal, interest, Escrow Items, and Late Charges. Borrower shall pay when
the principal of, and interest on, the debt evidenced by the Note and any late charges duc under the Note.
Borrower shal! also pay funds for Escrow Items pursuant to Section 3. Payments due under the Note and
this Security Instrument shall be made in U.S. currency, However, if any check or other instrument
received by Lender as payment under the Note or this Security Instrument is returned to Lender unpaid,
Lender may require that any or all subsequent payments duc under the Note and this Security {nstrument be
made in one or morc of the following forms, as selected by Lender: (a) cash; (b) money order; (c) certified
check, bank check, treasurer's check or cashier's check, provided any such check is drawn upon an
institution whose deposits are insured by a federal agency, instrumentality, or entity; or (d) Electronic
Funds Transfer.
Payments are deemed received by Lender wl hen received at the location designated in the Note or at
14.
such other location as may be designated by Lender in accordance with the notice provisions in Section
Lender may return any pa: yyment or partial payment if the payment or partial payments arc insufficient to
bring the Extension of Cret dit current. Lender may accept any payment or partial payment insufficient 10
bring the Extension of Credi it current, without waiver of any rights herounder or prejudice to its rights to
refuse such payment or partial payment in the futurc, but Lender is not obligated to apply such payments at
the time such payments are accepted. If each Periodic Payment is applicd as of its scheduled duc date, then
Lender need not pay interest on unapplied funds. Lender may hold such unapplied funds until Borrower
makes payment to bring he Extension of Credit current. If Borrower does not do so within 2 reasonable
period of time, Lender shi ali either apply such funds or return them to Borrower. If not applied cariicr,
such funds will be applied to the outstanding principal bal lance under the Note immediately prier to
foreclosure. No offset or claim which Borrower might have now or in the future against Lender shall
relieve Borrower from making payments duc under the Note and this Security Instrument or performing the
covenants and agreements secured by this Security Instrument.
2. Application of Payments or Proceeds. Except as otherwise described in this Section 2, all
payments accepted and applied by Lender shall be applied in the following order of priority: (a) interest
due under the Note; (b) principal due under the Note; (c) amounts due under Section 3. Such payments
shall be applied to each Periodic Pal ment in the order in which it became due. Any remaining amounts
shail be applied first to late charges, second to any other amounts due under this Security Instrument, and
then to reduce the principal balance of the Note.
If Lender receives a payment from Borrower for 4 delinquent Periodic Payment which includes a
sufficient amount ta pay any late charge due, the payment may be applied to the delinquent payment and
the late charge. If more than one Periodic Payment is outstanding, Lender may apply any payment received
be
from Borrower to the repayment of the Periodic Payments if, and to the extent that, each payment can
paid in ful li. To the extent that any excess exists after the payment is applied to the full payment of one or
more Peri jodic Payments, such excess may be applied to any late charges due. Voluntary prepayments shall
be applied as described in the Note.
Any application of payments, insurance proceeds, or Miscellaneous Proceeds to principal due under
the Note shall not extend or postpone the due date, or change the amount, of the Periodic Payments.
1009329149
woe SOP—S;
208817) 40505} Pageof 18 Form 3044.1 101 { rev. 40103)
ee = ——
SS a
—.
3. Funds for Escrow Items. Borrower shall pay to Lender on the day Periodic Payments are duc
under the Note, until the Note is paid in full, a sum (the "Funds") to provide for payment of amounts due
for: (a) taxes and assessments and other items which can attain priority over this Security Instrument as a
fien or encumbrance on the Property; (b) leaschold payments or ground rents on the Property, if any; and
(c) premiums for any and all insurance required by Lender under Section 5. These items are called
"Escrow Items." At origination or wt any time during the term of the Extension of Credit, Lender may
require that Community Association Dues, Fees, and Assessments, if any, be escrowed by Borrower, and
such dues, fees and assessments shall be an Escrow Item. Borrower shal! promptly furnish to Lender all
notices of amounts to be paid under this Section. Borrower shall pay Lender the Funds for Escrow Items
unless Lender waives Borrawer's obligation to pay the Funds for any ar all Escrow Items. Lender may
waive Borrower's obligation to pay to Lender Funds for any or afl Escrow Items at any time. Any such
waiver may only be in writing. In the event of such waiver, Borrower shall pay directly, when and where
payable, the amounts due for any Escrow Mems for which payment of Funds has becn waived by Lender
and, if Lender requires, shalt furnish to Lender receipts evidencing such payment within such time period
as Lender may require. Borrower's obligation to make such payments and to provide receipts shall for all
purposes be deemed to be a covenant and agreement contained in this Security Instrument, as the phrase
“covenant and agreement” is used in Section 9. 1f Borrower is obligated to pay Escrow Items directly,
pursuant to a waiver, and Borrower fails to pay the amount duc for an Escrow Item, Lender may exercise
its rights under Section 9 and pay such amount and Borrower shall then be obligated under Section 9 to
repay to Lender any such amount. Lender may revoke the waiver as to any or all Escrow [tems at any time
by a notice piven in accordance with Scction 14 and, upon such revocation, Borrower shall pay to Lender
all Punds, and in such amounts, that are then required under this Section 3.
Lender may, at any time, collect and hold Punds in an amount (a) sufficient to permit Lender to apply
the Funds at the time specified under RESPA, und (6) not to excced the maximum amount a lender can
require under RESPA. Lender shall estimate the amount of Funds due on the basis of current data and
reasonable estimates of expenditures of fulure Escrow Items or otherwise in accordance with Applicable
Law.
The Funds shail be held in an institution whose deposits are insured by a federal agency,
instrumentality, or entity (including Lender, if Lender is an institution whose deposits are so insured) or in
any Federal Home Loan Bank. Lender shall apply the Funds to pay the Escrow Items no later than the time
specified under RESPA, Lender shall not charge Borrower for holding and applying the Funds, annually
analyzing the escrow account, or verifying the Escrow Items, unless Lender pays Borrower interest on the
Funds and Applicable Law permits Lender to make such a charge. Unless an agreement is made in writing
or Applicable Law requires interest to be paid on the Funds, Lender shall not be required to pay Borrower
any interest or earnings on the Funds, Borrower and Lender can agree in writing, however, that interest
shall be paid on the Funds. Lender shall give to Borrower, without charge, an annual accounting of the
Funds as required by RESPA.
If there is a surplus of Funds held in cscrow, as defined under RESPA, Lender shall account to
Borrower for the ex
Preview
FILED 4/1/2024 12:00 AM FELICIA PITRE. DISTRICT CLERK DALLAS CO., TEXAS Fernando Soto DEPUTY DC-24-04614 Cause No. Samuel Ramirez, § IN THE DISTRICT COURT OF Plaintiff), § 8 v § DALLAS COUNTY, TEXAS DEUTSCHE BANK NATIONAL 298th TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS JUDICIAL DISTRICT CAPITAL LINC. TRUST 2007-NC1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-NC1, Defendant(s), URIGINAL PETITION ORIGINAL PLAINTIFF’ PLARNITIBE’ FEI eee DECLARATORY FOR ee ee e AND JUDGMENT APPLICATION FOR TEMPORARY RESTRAINING ORDER AND INJUNCTIVE RELIEF TO THE HONORABLE JUDGE OF THE COURT: NOW COMES Samuel Ramirez, the Plaintiff, complaining of Defendant DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL INC. TRUST 2007-NC1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-NC1, and would show the Court the following: Discovery Control Plan Samuel Ramirez proposes that discovery in this case be conducted under Discovery Control Plan Level 2. Tex. R. Civ. P. 190.3 Parties Samuel Ramirez is a natural person whose residence and homestead is situated in DALLAS County Texas. Defendant, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2007-NC1 MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2007-NC1, is a national banking company and may be served with process by and through its registered agent, Registered Agent Solutions, Inc., at 211 E. 7* St. Suite 620, Austin, Texas 78744 Venue and Jurisdiction 4 This Court has jurisdiction over the subject matter of this case because the amount in controversy AND FOR TRO AND INJUNCTIVE RELIEF PLAINTIFF'S PETITION DECLARATORY JUDGEMENT Page 1 exceeds this Court’s minimum jurisdictional requirements. The Court has personal jurisdiction over the Defendant under Sec. 17.003 of the Texas Civil Practices and Remedies Code, because the real property, the subject of this lawsuit, is located in Texas. Venue in DALLAS County, Texas is proper in this cause under Section 15.011 of the Texas Civil Practice and Remedies Code because the real property, the subject of this law suit, is situated in DALLAS County, Texas. Brief Summary The April 2, 2024, scheduled substitute trustee sale of the Property (the “Substitute Trustee Sale”) is unlawful because the Plaintiff, through his attorney James Minerve, sent the Defendant a Qualified Written Request (“QWR”), pursuant to RESPA, 12 USC §2605(e); however, the Defendant did not cancel the Substitute Trustee Sale until the loan servicer fully responds to the QWR as required under 12 C.F.R 1024.35(b)(9) and (10) and 1024.35(e)(3)()(B). Furthermore, the Defendant violated the Dual Tracking Provisions of Regulation X (RESPA) 12 CFR 1024.41(g); Additionally, the 736 Order, required to foreclose on an equity lien is automatically stayed upon the filing of this Petition. Factual Background The Property The Plaintiff is the owner of 308 N Forest Crest Drive, Garland, Texas 75042 (“Homestead” or “Property” or “real property”). The Plaintiff resides at this address, which is his homestead. The Deed of Trust August 21, 2006, the Plaintiff closed on a Home Equity Note for $88,250, securing the equity lien by a Deed of Trust (“DOT”). See Exhibit A The Defendant's equity lien is a lien created under Texas Constitution, Article XVI, §50a(6). See Exhibit B 10 The original mortgagee is Home123 Corporation The current mortgagee is DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2007-NCI MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-NC1 12. The current loan servicer is PHH Mortgage Corporation 13. Attorneys of the Mackie, Wolf, Zientz, & Mann, P.C. are designated as the purported Current Page 2 PLAINTIFF'S PETITION DECLARATORY JUDGEMENT ‘AND FOR TRO AND INJUNCTIVE RELIEF Trustee 14, Recently, the purported substitute trustee filed a notice of the Substitute Trustee Sale with the County Clerk of DALLAS County 15. According to a recent Broker’s Price Opinion, the current market value of the property is $262,000.00 16 The approximate monthly payment is $984.94. 17 The approximate amount in arrears is $19,578.26. 18 The estimated payoff is approximately $77,000. 19 The Plaintiff has approximately $185,000 of equity in the Property. 20. The Plaintiff has never applied for a temporary restraining order or filed bankruptcy to stop a foreclosure. 21 The Plaintiff has a buyer ready, willing and able under a purchase contract that will close within 30 days and pay off the Defendant in full. See Exhibit C Qualified Written Request re: Notice of Error Prohibiting Foreclosure 22. Friday, March 22, 2024, the Plaintiff, through his attorney James Minerve, sent the loan servicer a QWR pursuant to RESPA, 12 USC §2605(e). See Exhibit D and E 23 The QWR included a notice of error that 12 C_F.R. 1024.41(g) prohibited the loan servicer from foreclosing. See Exhibit F 24. Regulation X, 12 C.F.R. 1024.35(b)(9) and (10) and 1024.35(e)(3)(i){(B) prohibit a loan servicer from foreclosing on a borrower before fully responding to a QWR or correcting the errors pointed out in the QWR relating to12 C.F.R 1024.41(g). See Exhibit G 25 Neither the Defendant nor the Current Loan Servicer have responded to the Plaintiff's QWR. Therefore, the April 2, 2024, scheduled Substitute Trustee Sale of the property is unlawful. 26. If the foreclosure is not postponed until the loan servicer responds to the QWR, the Plaintiff will suffer irreparable harm by losing title to his homestead and $185,000 of equity in the Property Loss Mitigation Application 27 In January 2024, the Plaintiff submitted a completed loan modification application to the loan servicer. On that date the Plaintiff submitted all required completed loan modification forms, signed and dated, and submitted all required supporting documents, as specified on the loan servicer’s Website. = Page 3 PLAINTIFF'S PETITION DECLARATORY JUDGEMENT AND FOR TRO AND INJUNCTIVE RELIEF F 28. To date none of the representatives of the loan servicer have sent the Plaintiff a rejection letter denying the loss mitigation application and explaining that the Plaintiff is ineligible for any loss mitigation relief, and the appeal process has been exhausted or is inapplicable, as required by 12 CER 1024.41(g). TRCP 736 Order 29 In order to foreclose under a lien created under Texas Constitution, Article XVI, §50a(6), such as the Defendant’s equity lien, the Defendant must obtain a court order, and the Texas Legislature prescribed Texas Rules of Civil Procedure (TRCP), Rule 736 Orders for this purpose. See Exhibit H 30. March 4, 2024, the Defendant obtained a Rule 736 Order to Foreclose on the DOT, Cause DC- 23-14760, as required by TRCP 736. 31 Under TRCP 736.11, entitled “Automatic Stay and Dismissal, If Independent Suit Filed,” a Rule 736 Order to foreclose is automatically stayed upon the borrower filing an independent original petition in a court of competent jurisdiction that puts in issue any matter related to the origination, servicing, or enforcement of the loan agreement, contract, or lien soughtto be foreclosed prior to 5:00 p.m. on the Monday before the scheduled foreclosure sale. See Exhibit I 32. The dual tracking violation under Regulation X, 12 C.F.R 1024.35(b\(9) and (10) and 1024.35(e)(3)(iXB) and 12 CFR 1024.41(g), stated above, relate to the enforcement of Defendant’s equity lien. Therefore, the Rule 736 Order, Cause DC-23-14760, is automatically stayed. Arguments Violation of Dual Tracking Provisions of Regulation X, 12 C.F.R 1024.35(b)(9) and (10) and 1024.35(e)(3){i)(B) and 12 CFR 1024.41(g) 33 The Substitute Trustee Sale is unlawful because the Plaintiff, through his attorney, sent the Defendant a QWR, pursuant to RESPA, 12 USC § 2605( e); however, the Defendant did not cancel the Substitute Trustee Sale until the loan servicer fully responds to the QWR as required under the statute and regulations. 34, As stated, Friday, March 22, 2024, the Plaintiff, through his attorney James Minerve, sent the Defendant a QWR pursuant to RESPA, 12 USC §2605(e). 35. The QWR included a notice of error that 12 C.F.R 1024.35(b)(9) and (10) and Page 4 PLAINTIFF'S PETITION DECLARATORY JUDGEMENT AND FOR TRO AND INJUNCTIVE RELIEF 1024.35(e)(3)(i)(B) and 12 CFR 1024.41(g) prohibited the loan servicer from foreclosing until the loan servicer corrected the error and fully responded to the QWR. 36 Regulation X, 12 C.F.R 1024,35(b)(9) and (10).and 1024.35(e)(3)(i)(B) prohibit a loan servicer from foreclosing on a borrower before fully responding to a QWR or correcting the errors pointed out in the QWR relating to 12 CFR 1024.41(g). 37 The loan servicer has not responded to the Plaintiff's QWR. Therefore, the April 2, 2024, scheduled Substitute Trustee Sale of the property is unlawful. 38 Violation of RESPA, 12 USC § 2605(e) provides a private right of action for borrowers of federally related loans. Henok y. Chase Home Finance, LLC, 915 F.Supp.2d 109 (D.D.C.2013) (stating, “Mortgagor’s allegation that he sent letters to mortgagee and its foreclosure agent requesting cure amount before the foreclosure on his property and that mortgagee and its agent failed to respond to the letters stated a claim against mortgagee under RESPA for failure to respond to borrower inquires, where mortgagor attached two letters addressed to mortgagee and agent which included name of mortgagor, address of property. and directly requested amount to cure his default.”). 39 Upon receipt of a valid QWR including a notice of error relating 12 CFR 1024.41(g), 12 C.F.R 1024,35(b)(9) and (10) and 1024.35(e)(3)(i)(B) require a mortgagee and joan servicer to stop the foreclosure process. Stroman v. Bank of America Corp., 852 F Supp.2d 1366, (N.D.Ga. 2012) (stating, “Mortgagor stated a claim for violation of RESPA, by alleging that loan servicers failed to timely and properly acknowledge and respond to her qualified written requests (QWRs), some of which she attached to her complaint as an exhibit, failed to take corrective action identified in the QWRs, failed to provide her information requested in the OQWRs, failed to cease their collection efforts after receiving the QWRs, and provided ettoneous information to credit bureaus related to alleged overdue payments disputed in her QWRs, which damaged her credit score and reduced her access to credit.”). 40. As stated above, the DOT is a federally related loan subject to federal regulations (See Exhibit A, DOT, page 11, Section 15). 4] The damages the Plaintiff must plead under RESPA is met by including allegations in this petition that allege the Plaintiff will suffer irreparable harm unless the foreclosure sale is postponed. Agustin v. PNC Financial Services Group, Inc., 707 F.Supp.2d 1080 (D. Hawaii, 2010) (stating, “Allegations that borrowers sent written requests to lender for information — INJUNCTIVE RELIEF Page S PLAINTIFF'S PETITION DECLARATORY JUDGEMENT AND FOR TRO AND relating to home refinancing !oans, and that lender failed to take action with respect to these requests, causing them actual damages, were sufficient to state a claim under Real Estate Settlement Procedures Act (RESPA), even though borrowers did not plead pecuniary damages.”).. Tex Const, Art XVI, §50a(6)(Q) 42. In order to foreclose under a lien created under Texas Constitution, Article XVI, §50a(6), such as the Defendant’s equity lien, the Defendant must obtain a court order, and the Texas Legislature prescribed Texas Rules of Civil Procedure (TRCP), Rule 736 Orders for this purpose. 43 March 4, 2024, the Defendant obtained a Rule 736 Order to Foreclose on the DOT, Cause DC- 23-14760, as required by TRCP 736. 44 Under TRCP 736.11, entitled “Automatic Stay and Dismissal, If Independent Suit Filed,” a Rule 736 Order to foreclose is automatically stayed upon the borrower filing an independent original petition in a court of competent jurisdiction that puts in issue any matter related to the origination, servicing, or enforcement of the loan agreement, contract, or lien sought to be foreclosed prior to 5:00 p.m. on the Monday before the scheduled foreclosure sale. 45 The dual tracking violation under Regulation X, 12 C.F.R 1024.35(b)(9) and (10) and 1024.35(e)(3)(i(B) and 12 C.F.R 1024.41(g), stated above, relate to the enforcement of Defendant’s equity lien. Therefore, the Rule 736 Order, Cause DC-23-14760, is automatically stayed. Conditions Precedent 46. Pursuant to Rule 54 of the Texas Rules of Civil Procedure, all conditions precedent have been performed or have occurred. Request for Temporary Restraining Orde: 47, Plaintiff requests the Court to dispense with the issuance of a bond, and Plaintiff requests that the Defendant be temporarily restrained, without hearing, and upon notice and hearing be temporarily enjoined, pending further order of this Court, from foreclosing on the Deed of Trust 48. If a temporary restraining order is not issued today, the Defendant will sell the Plaintiff homestead and the Plaintiff will be irreparably harmed as stated in the attached affidavit. PLAINTIFF'S PETITION DECLARATORY JUDGEMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 6 49. The Plaintiff is likely to succeed on the merits because, as stated above. the Defendant committed dual tracking violations under Regulation X, 12 CFR 1024.35(b)(9) and (10) and 1024.35(e)(3)()(B) and 12 CFR 1024.41(g), and the Rule 736 Order is automatically stayed 50. Granting the temporary restraining order is in the public interest, because enforcing contracts and discouraging foreclosures are in the public interest. 51 The Defendant may simply foreclose in 30 days, or recoup whatever expenses incurred by not foreclosing from the Plaintiff, which is permitted by the Deed of Trust; therefore, the potential harm to the Defendant is outweighed by the potential irreparable harm to the Plaintiff. Request for Tem) Order $2 Plaintiff request that the Court, after notice and a hearing, without the necessity of a bond and to make temporary orders and issue any appropriate temporary injunctions deemed necessary and equitable by the Court. Attorney’s Fees 33 Under Section 37.009, Tex Civ. Prac. & Rem Code, Samuel Ramirez requests that the Court award them costs and reasonable and necessary attorneys’ fees as are equitable and just against DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2007-NC1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-NC1 Praye WHEREFORE, PREMISES CONSIDERED, the Plaintiff Samuel Ramirez prays for the following: 54. Prayer for Declaratory Relief 55. WHEREFORE Plaintiff prays that after notice and hearing the Court declares the Substitute Trustee Sale of the Property is unlawful and must be postponed until: (a) the loan servicer or the Defendant fully responds to the Plaintiff QWR; and (b) the loan servicer or the Defendant provides Plaintiff with a rejection letter as required by the dual tracking provisions of Regulation X. 56. Prayer for Relief WHEREFORE Plaintiff prays that the Court immediately grant a temporary restraining order restraining Defendant, in conformity with the allegations of this Plaintiff, from the acts set forth — PLAINTIFF'S PETITION DECLARATORY JUDGEMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 7 above. and Plaintiff prays that, after notice and hearing, this temporary restraining order be made a temporary injunction. i Plaintiff prays that the Court, in addition to the temporary restraining orders and temporary injunction order prayed for above, after notice and hearing, grant a temporary injunction enjoining Defendant, in conformity with the allegations of this Petition from the acts set forth above while this case is pending, and enter temporary orders as requested above Plaintiff prays for expenses, costs and interest as allowed by law. Plaintiff prays for general relief. Respectfully submitted, /s/ James Minerve James Minerve State Bar No. 24008692 13276 N Highway 183, ste. 209 Austin, Texas 78750 (888) 819-1440 (Office) (210) 336-5867 (Cell) (888) 230-6397 (Fax) Email: jgm@minervelaw.com Attorney for Plaintiff Samuel Ramirez = a AND PLAINTIFF'S PETITION DECLARATORY JUDGEMENT FOR TRO AND INJUNCTIVE RELIEF Page 8 CERTIFICATE OF SERVICE Ihereby certify that a true and correct copy of the above and foregoing document was sent to the following in accordance with the Texas Rules of Civil Procedure on this 30" day of March 2024: Corporation Service Company, registered agent for DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2007-NC1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007- NCI 211 E. 7 St., Suite 620 Austin, Texas 78701 /s/ James Minerve James Minerve PLAINTIFF'S PETITION DECLARATORY JUDGEMENT AND FOR TRO AND INJUNCTIVE RELIEF Page 9 GENERAL AFFIDAVIT State of Ts § fullas § County of ‘Tai oh BEFORE ME, the undersigned Notary, i this 40 _ day of March 2024 personally sppesred Samuel Ramirez, known to me to be # credible person of lawful age, who being by me first duly swom, on his osth, deposes and says: 1 I, Samuel Ramirez, am a natural person whose homestead is in DALLAS County Texas. I have personal knowledge of the facts stated below, [ understand that I can be held criminally responsible if I lie in this statement. This statement is true. The Apmil 2, 2024, scheduled substitute trustee sale of the Property (the “Substitute Trustee Sale”) is unlawful because I, through his attorney James Minerve, sent the Defendanta Qualified Writeen Request (“QWR”), pursuant to RESPA, 12 USC §2605(e); however, the Defendant did not cancel the Substitute Trustee Sale until the loan servicer fully responds to the QWR as required under 12 C.F.R 1024.35{b\9) and (10) and 1024.35(e}(3)iXB). Furthermore, the Defendant violated the Dual Tracking Provisions of Regulation X (RESPA) 12 CFR 1024.41(g); Additionally, the 736 Order, required to foreclose on an equity lien is satomatically stayed upon the filing of this Petition. Tam the owner of 308 N Forest Crest Drive, Garland, Texas 75042 (“Homestead”or “Property” or “real property”). I reside at this address, which is my homestead. August 21, 2006, I closed on a Home Equity Note for $88,250, securing the equity lienby a Deed of Trust (“DOT”). See ExhibitA The Defendant’ s equity lien is a lien created under Texas Constitution, Article XVI, §50a(6). See Exhibit B The original mortgagee is Home123 Corporation ‘The current mortgagee is DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2007-NC1 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-NC1 The current loan servicer is PHH Mortgage Corporation Attomeys of the Mackie, Wolf, Zientz, & Mann, P.C. are designated as the purported Current Trustee. 10. Recently, the purported substitute trustee filed a notice of the Substitute Trustes Sale with the County Clerk of DALLAS County. i Accordingto a recent Broker's Price Opinion, the current market value of the property is Page 1 of 3 GENERAL AFFIDAVIT continued $262,000.00. 12. The approximate monthly payment is $984.94. 13. ‘The approximate amount in arrears is $19,578.26. 14 The estimated payoff is approximately $77,000. 15. Thave approximately $185,000 of equity in the Property. 16. T have never applied for a temporary restraining order or filed bankruptcy to stop a foreclosure. 17.1 have a buyer ready, willing and able under a purchase contract that will close within 30 days and pay off the Defendantin full. See Exhibit C 18. Friday, March 22, 2024, L through my attorney James Minerve, sent the loan servicer a QWR pursuant to RESPA, 12 USC §2605{e). See Exhibit D and E 19. of error that 12 C.F.R. 1024.41(g) prohibited the loan servicer The QWR included a notice from foreclosing. See Exhibit F 20. Regulation X, 12 CF.R. 1024.35(bX9) and (10) and 1024.35(e)(3iXB) prohibit a loan servicer from forectosing on a borrower before fully responding to a QWR or correcting the errors pointed out in the QWR relating tol2 C-F.R 1024.41(g). Sec Exhibit G 21 Neither the Defendant nor the Current Loan Servicer have responded to my QWR. Therefore, the April 2, 2024, scheduled Substitute Trustee Sale of the property is unlawful. If the foreciosure is not postponed until the loan servicer responds to the QWR, Iwill suffer irreparable harm by losing title to his homestead and $185,000 of equity in the Property. In January 2024, I submitted 2 completed loan modification application to the loan servicer. On that date I submitted all required completed loan modification forms, signed and dated, and submitted ali required supporting documents, as specified on the loan servicer’s Website. To date none of the representatives of the loan servicer have sent me a rejection letter denying the loss mitigation application and explaining that ! am ineligible for any loss mitigation relief, and the appeal process has been exhausted or is inapplicable, as required by 12 CFR 1024.41(g). 25. In ordersto foreclose under a lien created under Texas Constitution, Article XVI, §50a(6), such as the Defendant's equity lien, the Defendant must obtain a court order, and the Texas Legislature prescribed Texas Rules of Civil Procedure (TRCP), Rule 736 Orders for this Page 2 of 3 GENERAL AFFIDAVIT CONTINUED purpose. 26. March 4, 2024, the Defendant obtained a Rule 736 Orderto Foreclose on the DOT, Cause DC-23-14760, as required by TRCP 736 27 Under TRCP 736.11, entitied “Automatic Stay and Dismissal, If Independent Suit Filed,” Rule 736 Order to forectose is automatically stayed upon the borrower filing an independent original petition in a court of competent jurisdiction that puts in issue any matter related to the origination, servicing, or enforcement of the toan agreement, contract, or lien sought to be foreclosed prior to 5:00 p.m. on the Monday before the scheduled foreclosure sale. See Exhibit H The dual tracking violation under Regulation X, 12 C.F.R 1024.35(b)(9) and (10) and 1024.35(e)(3)GX(B) and 12 C.F.R 1024.41(g), stated above, relates to the enforcementof dant”s equity lien. Therefore, the Rule 736 Order, Cause DC-23-14760, is stayed. 1 Ramirez 308 N Forest Crest Drive, Garland, Texas 75402 State of T § County of. Pullas § day of ch 2024, by Samuel mirez Sworn to and subscribed before me on the 0 fo wp {EVIN BIERWIRTH —< 18 PGS ~ 2ANGNNSO5AS [BIT Return To: Home123 Corporation 3351 Michelson Drive, Ste 400 yessqosee Irvine, CA 92612 Prepared By: ly Homel23 Corporation 3351 Michelson Drives, te 400 Irvine, CA 92612 ————-[Snmce Above This Line far Recording Datal THIS SECURITY INSTRUMENT SECURES AN EXTENSION OF CREDIT AS DEFINED BY SECTION 50(a)(6), ARTICLE XVI OF THE TEXAS CONSTITUTION, TEXAS HOME EQUITY SECURITY INSTRUMENT (First Lien) MIN 100488910093251499 This Security Instrument is not intended to finance Borrower's acquisition of the Property. DEFINITIONS Words used in multiple sections of this document are defined below and other words are defined in Sections 3, 10, 12, 17, 19, 20 and 21. Certain rules regarding the usage of words used in this document are also provided in Section 15. {A) "Security Instrument" means this document, which is dated August 21, 2006 together with all Riders to this document. (B) "Borrower" is SANDRA RAMIREZ AND BUSBAND, SAMUEL RAMIREZ Borrower is the grantor under this Security Instrument. 1009329149 ee HOME EQUITY SECURITY INSTRUMENT (First Lien) Fannie Mae/Freddie Mac UNIFORM INSTRUMENT WITH 804617) (9506) Form 3044, 1 1/01 BorShe rev. 10/03), - Page 1 ol 18 Inia: MP Morigaga Solutions, inc; (800)521-7201 a es (C) "Lender" is Home123 Corporation Lender is a Corporation organized and existing under the laws of California Lender's address is 3351 Michelson Drive, Ste 400, Irvine, CA 92612 Lender includes any holder of the Note who is entitled to receive payments under the Note. (D) "Trustee" is Eldon L. Youngblood . Trustee's. address is 2711 North Haskell Avenue, Suite 2700 LB 25, Dallas, Texas 75204 (E) "MERS" is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns. MERS is the beneficiary vader this Security Instrument. MERS is organized and existing under the Jaws of Delaware, and has an address and telephone number of P.O. Box 2026, Flint, MI 48501 - 2026, tel. (888) 679-MERS. (F) "Note" means the promissory note signed by Borrower and dated August 21, 2006 The Note states that Borrower owes Lender EIGHTY-EIGHT THOUSAND TWO HUNDRED FIFTY AND 00/100 Dollars (U.S. $88,250.00 ) plus interest. Borrower has promised to pay this debt in regular Periodic Payments and to pay the debt in full nut later than 09/02/2036 (G) "Property" means the property that is described below under the heading "Transfer of Rights in the Property.” (1) "Extension of Credit” means the debt evidenced by the Note, as defined by Section 50(a)(6), Asticle XVI of the Texas Constitution and all the documents executed in connection with the debt, (D “Riders” means all riders to this Security Instrument that are executed by Borrower. The following riders are to be exceuted by Borrower [check box as applicable|: {] Texas Home Equity Condominium Rider (71 otter: (J texas Home Equity Planned Unit Development Rider (@) "Applicable Law" mean s all controfling applicable federal, state and local statutes, regulations, ordinances and administ rules and orders (that have the cffect of law) as well as ail applicable final, non-appealable judicial opinions. (K) “Community Association Ducs, Fees, and Assessments" means all dues, fees, assessments and other charges that are imposed on Borrower or the Property by a condominium association, homeowners association or similar organization. (L) "Electronic Funds Transfer" means any transfer of funds, other than a transaction originated by check, draft, or similar paper instrument, which is initiated through an electronic terminal, telephonic instrument, computer, or magnetic tape so as to order, instruct, or authorize a financial institution to debit or credit an account. Such term includes, but is not limited to, point-of-sale transfers, automated tcllcr machine transactions, transfers initiated by telephone, wire transfers, and automated clearinghouse transfers. (M) "Escrow tfems" means those items that are described in Scction 3. (N) "Miscellancous Proceeds" means any compensation, settlernent, award of damages, or proceeds paid by any third party (other than insurance proceeds paid under the coverages described in Section 5) for: (i) damage to, or destruction of, the Property; (ii) condemnation or other taking of all or any part of the 1009329149 teats SOO Sp ster) (0508) Paye 2 of 18 Form 3044.4 1/01 ( rev. 10/03) _—= Property; (iii) conveyance in ficu of condemnation; or (iv) misrepresentations of, or omissions as to, the value and/or condition of the Property. (O) “Periodic Payment" means the regularly scheduled amount due for (i) principal and interest under the Note, plus (ii) any amounts under Section 3 of this Security Instrument. (P) "RESPA" means the Real Estate Settlement Procedures Act (12 U.S.C. Section 2601 et seq.) and its implementing regulation, Regulation X (24 C.F.R. Part 3500), as they might be amended from time to time, or any additional or successor legislatian or regulation that yaverns the same subject matter. As used in this Security Instrument, "RESPA" refers to all requirements and restrictions that are imposed in regard to a “federatly related mortgage joan" even if the Extension of Credit does not qualify as a "federally related mortgage loan" under RESPA. (Q) "Successor in Interest of Borrower" means any party that has taken title to the Property, whether or not that party has assumed Borrower's obligations under the Note and/or this Security Instrument. TRANSFER OF RIGHTS IN THE PROPERTY The beneficiary of this Security Instrument is MERS (solely as nomince for Lender and Lender's successors and assigns) and the successors and assigns of MERS. This Security Instrument secures (o Lender: (i) the repayment of the Extension of Credit, and all extensions and modifications of the Note; and (ti) the performance of Borrower's ‘covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower irrevocably grants and conveys to Trustee, in trust, with power of sale, the following described Property located in the County of Dallas [Type of Recording Jurisdiction} [Name of Recording Jurisdiction] BEING Lot 1, Block 4, of FOREST CREST ADDITION, an Addition to the City of Garland, Dallas County, Texas, according to the plat thereof recorded in Volume 42, Page 53, of the Map Records of Dalias County, Texas. Parcel ID Number: 26-17950-004-001-0000 which currently has the address of 308 N Forest Crest Drive (Street) Garland [City], Texas 75042- [Zip Code] ("Property Address"): TOGETHER WITH all the improvements now or hereafter erected on the Property, and all easements, appurtenances, and fixtures now or hercafter a part of the Property. All replacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the "Property"; provided however, that the Property is limited to homestead 1009329149 veo SKQ Bp s048iTx) (0508) Page 3 of 18 Form 3044.1 1/01 { rev. 10/03) = — property in a cordance with Section S0(a)(6)(H). Article XVI of the Texas Constitution. Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security (nsteument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: a exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canccling this Security Instrument BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right fo grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants an id will defend generally the title to the Property against all claims and demands, subject ta any encumbrances of record. Borrower and Lender covenant and agree as follows: duc 1. Payment of Principal, interest, Escrow Items, and Late Charges. Borrower shall pay when the principal of, and interest on, the debt evidenced by the Note and any late charges duc under the Note. Borrower shal! also pay funds for Escrow Items pursuant to Section 3. Payments due under the Note and this Security Instrument shall be made in U.S. currency, However, if any check or other instrument received by Lender as payment under the Note or this Security Instrument is returned to Lender unpaid, Lender may require that any or all subsequent payments duc under the Note and this Security {nstrument be made in one or morc of the following forms, as selected by Lender: (a) cash; (b) money order; (c) certified check, bank check, treasurer's check or cashier's check, provided any such check is drawn upon an institution whose deposits are insured by a federal agency, instrumentality, or entity; or (d) Electronic Funds Transfer. Payments are deemed received by Lender wl hen received at the location designated in the Note or at 14. such other location as may be designated by Lender in accordance with the notice provisions in Section Lender may return any pa: yyment or partial payment if the payment or partial payments arc insufficient to bring the Extension of Cret dit current. Lender may accept any payment or partial payment insufficient 10 bring the Extension of Credi it current, without waiver of any rights herounder or prejudice to its rights to refuse such payment or partial payment in the futurc, but Lender is not obligated to apply such payments at the time such payments are accepted. If each Periodic Payment is applicd as of its scheduled duc date, then Lender need not pay interest on unapplied funds. Lender may hold such unapplied funds until Borrower makes payment to bring he Extension of Credit current. If Borrower does not do so within 2 reasonable period of time, Lender shi ali either apply such funds or return them to Borrower. If not applied cariicr, such funds will be applied to the outstanding principal bal lance under the Note immediately prier to foreclosure. No offset or claim which Borrower might have now or in the future against Lender shall relieve Borrower from making payments duc under the Note and this Security Instrument or performing the covenants and agreements secured by this Security Instrument. 2. Application of Payments or Proceeds. Except as otherwise described in this Section 2, all payments accepted and applied by Lender shall be applied in the following order of priority: (a) interest due under the Note; (b) principal due under the Note; (c) amounts due under Section 3. Such payments shall be applied to each Periodic Pal ment in the order in which it became due. Any remaining amounts shail be applied first to late charges, second to any other amounts due under this Security Instrument, and then to reduce the principal balance of the Note. If Lender receives a payment from Borrower for 4 delinquent Periodic Payment which includes a sufficient amount ta pay any late charge due, the payment may be applied to the delinquent payment and the late charge. If more than one Periodic Payment is outstanding, Lender may apply any payment received be from Borrower to the repayment of the Periodic Payments if, and to the extent that, each payment can paid in ful li. To the extent that any excess exists after the payment is applied to the full payment of one or more Peri jodic Payments, such excess may be applied to any late charges due. Voluntary prepayments shall be applied as described in the Note. Any application of payments, insurance proceeds, or Miscellaneous Proceeds to principal due under the Note shall not extend or postpone the due date, or change the amount, of the Periodic Payments. 1009329149 woe SOP—S; 208817) 40505} Pageof 18 Form 3044.1 101 { rev. 40103) ee = —— SS a —. 3. Funds for Escrow Items. Borrower shall pay to Lender on the day Periodic Payments are duc under the Note, until the Note is paid in full, a sum (the "Funds") to provide for payment of amounts due for: (a) taxes and assessments and other items which can attain priority over this Security Instrument as a fien or encumbrance on the Property; (b) leaschold payments or ground rents on the Property, if any; and (c) premiums for any and all insurance required by Lender under Section 5. These items are called "Escrow Items." At origination or wt any time during the term of the Extension of Credit, Lender may require that Community Association Dues, Fees, and Assessments, if any, be escrowed by Borrower, and such dues, fees and assessments shall be an Escrow Item. Borrower shal! promptly furnish to Lender all notices of amounts to be paid under this Section. Borrower shall pay Lender the Funds for Escrow Items unless Lender waives Borrawer's obligation to pay the Funds for any ar all Escrow Items. Lender may waive Borrower's obligation to pay to Lender Funds for any or afl Escrow Items at any time. Any such waiver may only be in writing. In the event of such waiver, Borrower shall pay directly, when and where payable, the amounts due for any Escrow Mems for which payment of Funds has becn waived by Lender and, if Lender requires, shalt furnish to Lender receipts evidencing such payment within such time period as Lender may require. Borrower's obligation to make such payments and to provide receipts shall for all purposes be deemed to be a covenant and agreement contained in this Security Instrument, as the phrase “covenant and agreement” is used in Section 9. 1f Borrower is obligated to pay Escrow Items directly, pursuant to a waiver, and Borrower fails to pay the amount duc for an Escrow Item, Lender may exercise its rights under Section 9 and pay such amount and Borrower shall then be obligated under Section 9 to repay to Lender any such amount. Lender may revoke the waiver as to any or all Escrow [tems at any time by a notice piven in accordance with Scction 14 and, upon such revocation, Borrower shall pay to Lender all Punds, and in such amounts, that are then required under this Section 3. Lender may, at any time, collect and hold Punds in an amount (a) sufficient to permit Lender to apply the Funds at the time specified under RESPA, und (6) not to excced the maximum amount a lender can require under RESPA. Lender shall estimate the amount of Funds due on the basis of current data and reasonable estimates of expenditures of fulure Escrow Items or otherwise in accordance with Applicable Law. The Funds shail be held in an institution whose deposits are insured by a federal agency, instrumentality, or entity (including Lender, if Lender is an institution whose deposits are so insured) or in any Federal Home Loan Bank. Lender shall apply the Funds to pay the Escrow Items no later than the time specified under RESPA, Lender shall not charge Borrower for holding and applying the Funds, annually analyzing the escrow account, or verifying the Escrow Items, unless Lender pays Borrower interest on the Funds and Applicable Law permits Lender to make such a charge. Unless an agreement is made in writing or Applicable Law requires interest to be paid on the Funds, Lender shall not be required to pay Borrower any interest or earnings on the Funds, Borrower and Lender can agree in writing, however, that interest shall be paid on the Funds. Lender shall give to Borrower, without charge, an annual accounting of the Funds as required by RESPA. If there is a surplus of Funds held in cscrow, as defined under RESPA, Lender shall account to Borrower for the ex