Motion for Attachment Order in Alma Hernandez VS. Jenniffer Elizabeth Banuelos| Trellis.Law

On April 30, 2024 a Exhibit,Appendix was filed involving a dispute between Hernandez, Alma, and Banuelos, Jenniffer Elizabeth, for Contract - Other Contract (OCA) in the District Court of Hidalgo County.

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Electronically Filed
4/30/2024 1:22 PM
Hidalgo County District Clerks
C-1996-24-) Reviewed By: J uan Galvan

CAUSE NO. He

ALMA HERNANDEZ IN THE DISTRICT COURT

vs. HIDALGO COUNTY, TEXAS

JENNIFFER ELIZABETH BANUELOS —----- JUDICIAL DISTRICT

PLAINTIFF’S ORIGINAL PETITION, APPLICATION FOR EX-PARTE TEMPORARY
RESTRAINING ORDER AND REQUEST FOR A TEMPORARY INJ UNCTION

TO THE HONORABLE J UDGE OF SAID COURT:

COMES NOW, ALMA HERNANDEZ, hereinafter called “Plaintiff? complaining of

and about J ENNIFFER ELIZABETH BANUELOS hereinafter called “Defendant’, and for

cause of action show unto the Court the following:

DISCOVERY CONTROL PLAN LEVEL 3

11 Plaintiff intends to conduct discovery under Level 3 of Texas Rule of Civil

Procedure 190.4 and affirmatively plead that this suit is not governed by the expedited-

actions process in Texas Rule of Civil Procedure 169 because Plaintiff requests injunctive

relief and Plaintiff seeks monetary relief over $250,000.00.

PARTIES AND SERVICE

2.1 Plaintiff, ALMA HERNANDEZ resides in Hidalgo County, Texas.

2.2 Defendant
J ENNIFFER ELIZABETH BANUELOS is an individual who may be

served with process at 3416 Covina Ave., McAllen, Hidalgo County, Texas 78503 or 2700

Denton Creek Ave., McAllen, Hidalgo County, Texas 78504, or wherever she may be

found.

JURISDICTION AND VENUE

3.1 The subject matter in controversy is within the jurisdictional limits of this Court.

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3.2 Venue in Hidalgo County is proper in this cause because Hidalgo County, Texas

is the County in which all or substantially all of the events or omissions giving rise to the

issues in this suit occurred.

3.3 Venue in Hidalgo County, Texas is also proper pursuant to Section 15.035(a) of

the Texas Civil Practices and Remedies Code because this action involves real property,

and the real property is located in Hidalgo County, Texas.

CLAIM FOR RELIEF

4.1 Plaintiff requests injunctive relief and Plaintiff seeks monetary relief over

$250,000.00.

FACTS

A “Buyer’s Contract”
5.1 On January 18: 2016, Plaintiff and Defendant entered into an executory contract

titled, “Buyer’s Contract. (See Exhibit “A”, attached hereto and incorporated herein

in its entirety by this reference).

5.2 Plaintiff purchased the property legally described as:

Lot 21, Block 25, Balboa Acres W %%, Hidalgo County, Texas.
The house address is 3416 Covina Ave., McAllen, Hidalgo County,
Texas.

5.3 The purchase price was $120,000 for the house. The purchase price was to be

paid in monthly installments of $512.00 beginning on February 17, 2016, and continuing

for 20 years until the house is paid in full.

5.4 The Plaintiff has been making the monthly payments until the Defendant suddenly

informed Plaintiff that she would no longer accept payments because she needed to sell

the house. She indicated that her business had been bad.

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5.5 On April 1, 2024, Defendant had her attorney send Defendant a “Notice of Default

And Intent To Accelerate” informing Plaintiff that she is in default but does not give the

information required by the property code as set out below. (See Exhibit “B”, attached

hereto and incorporated herein in its entirety by this reference).

5.6 Plaintiff is further informed that she has until April 30, 2024, to pay the sum of

$57,097.05. Otherwise, Defendant intends to cancel the Contract
for Deed.

5.7 Plaintiff disputes that she owes that amount of money. She has regularly been

making payments that are required under the contract.

5.8 Defendant refused to accept any more payments on or about August 2023.

5.9 Plaintiff has been living and using the property as her homestead. She has made

monthly payments since 2016. Her total monthly payments are in excess of 70 payments

and more than 40% of the purchase price. This factis material because under the property

code, a foreclosure procedure would need to be followed instead of a cancelation of the

executor contract.

5.10 The Defendant has indicated that she is going to sell the property.

VIOLATIONS OF THE TEXAS PROPERTY CODE

6.1. Defendant did not provide a recent property survey which cannot be older than

one year priorto or at the time when the contract was signed.

a Defendant did not provide a tax certificate from each entity that collects
taxes on the property.

If Defendant had insurance on the property, Defendant
did not provide a
copy to my client.

Defendant
did not disclose whether
the property is in a recorded subdivision
or not.

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Defendant did not record the contract within 30 days of the signing of the
contract.

Defendant did not provide Plaintiff with a written annual accounting
statement each year.

6.2 Texas Property Code 5.077 states that the seller must give the buyer an annual

accounting statement every January. The accounting statement must include the

following:

a The total amount paid

b The total amount still owed

The remaining number of payments

The amount paid in taxes

The amount paid for any insurance

The amounts collected from any insurance proceeds. This also includes
how these proceeds have been used.

Any change in insurance coverage and a copy of any insurance policy. It
must also describe the insured property and say the amount that it is
insured for.

6.3 The seller may have to pay a penalty for each annual statement that they fail to

give to buyer. This may also include attorney fees.

6.4 Texas Property Code 5.071 says that the seller must tell the buyer the financing

terms before the contract is signed. The information must include:

a The property price.

b The interest rates charged under the contract.

Cc The total amount the buyer will pay under the contract, including interest.

d Whether late charges apply and how much.

6.5 Sec. 5.073. CONTRACT TERMS, CERTAIN WAIVERS PROHIBITED.

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(a) A seller may not include as a term of the executory contract a provision
that:

(1) imposes an additional late-payment fee that exceeds the lesser
of:
(A) eight percentof the monthly payment under the contract; or

(B) the actual administrative cost of processing the late payment.

6.6 Since Defendant client is not an institution, Defendant does not have any

administrative costs processing the late payment, so she should not have been charging

late fees.

. A statement that the seller may not charge a prepayment penalty if
the buyer wants to make partial or full advanced payments.

6.7 The contract Defendant had Plaintiff sign also violates Texas Property Code

5.071. This is not surprising since Defendant had a notary public prepare the contract for

Plaintiffto sign, and the notary public was not a lawyer familiar with the provisions of the

Property Code regarding executory contracts.

6.8 Texas Property Code 5.063 states the seller must tell the buyer if the buyer is in

violation of the contract. The notice must include what part of the contract they are

violating, how much the buyer may owe, and what the seller intends to do about it.

6.9 Texas Property Code 5.063 gives very specific requirements for the notice to the

buyer. Notice must be:

a In writing

b Delivered by registered or certified mail.

Printed in 14-point font.

Contain specific statutory language.

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6.10 Once the proper notice has been given under Texas Property Code 5.063, then

under Texas Property Code 5.064 and 5.065 Plaintiff has the opportunity to catch up on

her payments. The time a buyer has to catch up on payments depends on the following:

a A buyer has 60 days to catch up on payments if any of the following is
true:

If more than 40% of the contract has been paid or

If more than 48 monthly payments have been paid, then the seller
can only foreclose. The property will be sold and the new owner can
evict my client. The sale proceeds will go to paying what Plaintiff
owes. Any money over that amount will go to my client.

6.11 Defective Accounting. Defendant never provided Plaintiff an annual accounting

and even in the acceleration letter dated April 1, 2024, the accounting therein is grossly

incorrect. The statement omits all the payments that Plaintiff made from February 17,

2016, until August 2023. Plaintiff has receipts. Also, Defendant refused to accept any

more payments from Plaintiff after a payment
was made in August 2023, with the excuse

that her business was bad and that she needed to sell the house.

6.12 The purported cancellation of the contract and intended sale of the property is

wrongful because Defendant violated numerous provisions of the Texas Property Code

as set out above.

COUNT 1 - BREACH OF CONTRACT

7.1 Plaintiff re-alleges paragraphs 1.1 to 6.12 and incorporate said paragraphs by this

reference.

7.2 Defendant acts, omissions, and conduct constitute a breach of contract by refusing

to accept Plaintiff payments.

7.3 Defendant failure to comply with the requirements of the Property Code as set out

above also constitutes a breach of contract.

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COUNT 2 - INTERFERENCE WITH PROPERTY RIGHTS

8.1 Plaintiff re-alleges paragraphs 1.1 to 7.2 and incorporate said paragraphs by this

reference.

8.2 In addition to, and/or in the alternative to other counts, the Defendant’s conduct

also constitutes interference with Plaintiffs rights to the use and enjoyment of her own

property, i.e., her homestead.

8.3 Plaintiff seeks injunctive relief against Defendant and any person or entity acting

in concert or agreement with the Defendant to interfere with Plaintiff's right to her

homestead.

8.4 Plaintiff seeks her actual damages as a result
of all of the Defendant's conduct set

out above.

8.5 Because all the Defendant's actions were done knowingly, deliberately and

intentionally, and with actual malice, Plaintiff also seeks exemplary damages.

COUNT 3 - EQUITABLE RELIEF

9.1 Section 24.008 of the Texas Government
Code provides that a District Court may

hear and determine any cause that is cognizable by courts of law or equity and may grant

any relief that could be granted by either courts of law or equity.

9.2 Plaintiff owes Defendant a sum of money and has been paying regularly until

Defendant wrongfully refused to accept payments.

9.3 Defendant intends to cancel the contract and sell the house even though she has

not sought a judicial foreclosure as required by the Property Code since Plaintiff has made

more than 48 monthly payments or paid over 40% of the purchase price, either one which

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requires that the property be foreclosed and cannot simple have the seller declared the

contract terminated and sell the property without utilizing a judicial foreclosure procedure.

COUNT 4 - DECLARATORY Jj UDGMENT

10.1 Plaintiff, based on the foregoing facts and law, requests that the Court issue a

declaratory judgment that:

a Plaintiff ALMA HERNANDEZ has an interestin the property pursuantto the
terms of the contract.

Defendant cannot sell the property without first seeking a judicial
foreclosure.

COUNT 5 - ATTORNEY FEES AND COSTS

11.1 Plaintiff asks this Honorable Court to award her reasonable and necessary

attorney's fees as it finds necessary and just, pursuant to Tex. Civ. Prac. Rem. Code

Section 37.009 or any other applicable statute.

APPLICATION FOR TEMPORARY RESTRAINING ORDER

12.1 Plaintiff re-alleges all of the previous paragraphs and incorporate them herein by

this reference.

12.2 Plaintiffs application for temporary restraining order is authorized by

Tex.R.Civ..P
roc 680, and Tex. Civ. Prac. & Rem. Code § 65.011(1) & (2). Under Tex. Civ.

Prac. & Rem. Code § 65.011(1), a writ of injunction may be granted if the applicant is

entitled to the relief demanded, and all or part of the relief requires the restraint of some

act prejudicial to the applicant. See Costal Mar. Serv. V. City of Port Neches, 11 S.W.3d

509, 515 (Tex.App—Beaumont 2000, no pet.); see, e.g., Dallas Cty. V. Sweitzer, 881

S.W.2d 757, 769 (Tex. App.—Dallas 1994, writ denied). Under Tex. Civ. Prac. & Rem.

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Code § 65.011(2), a writ of injunction may be granted if a party performs or is about to

perform, or is procuring or allowing the performance of, an act relating to the subject of

pending litigation, in violation of the applicant’s rights, and the act would tend to render

the judgment in that litigation ineffectual. (See Tex. Civ. Prac. & Rem. Code § 65.011(2).

12.3 Plaintiff respectfully request the Court issue an order preventing Defendant

Jenniffer Elizabeth Banuelos or any of her trustees that she may name, agents,

representatives, servants, and attorneys from foreclosing, selling, transferring any title or

interest, pursuing any collection activity against the Plaintiff and/or against any

successors in interest, marketing for sale or lease, negotiating the sale, accepting any

sums of money, cashier’s check, personal check, money order, wire transfer, cash, or

anything of value for any or part of any interest in the properties, and interfering with

Plaintiffs’ use of the property, to wit:

Lot 21, Block 25, Balboa Acres W %, Hidalgo County, Texas.
The house address is 3416 Covina Ave., McAllen, Hidalgo County,
Texas.

12.4 Plaintiff asks that this Court grant the temporary restraining order ex-parte because

it clearly appears from specific facts shown by Plaintiff's affidavits of the facts that

immediate and irreparable injury, loss, or damage will result to the Plaintiff before notice

can be served and a hearing had thereon.

12.5 It is probable that Plaintiff will recover from Defendant after a trial on the merits

because evidence shows or will show that Defendant JENNIFFER ELIZABETH

BANUELOS and its agents, representatives, servants, and attorneys and any other

person acting in concert with them, is attempting to sell the property described above.

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12.6 If Plaintiff's application is not granted, harm is imminent because all of the

Defendant's actions will deprive Plaintiff of her property.

12.7. The harm that will result if the temporary restraining order is not issued is

irreparable because the damages it will cause Plaintiff involve loss of real estate.

12.8 Plaintiff has no adequate remedy at law because the damages resulting from the

wrongful foreclosure is the loss of a lot of real estate property that is unique and valuable

to the Plaintiff.

12.9 Plaintiff is willing to post bond if the Court deems it appropriate, in a reasonable

amount.

REQUEST FOR EX PARTE RELIEF

13.1 There is not enough time to serve notice on Defendant
and to hold a hearing on

this application. Harm is imminent because Defendant will terminate the contract at any

time after April 30, 2024, and sell or attempt to sell the above-described real property.

13.2. An ex parte order, without notice to Defendant, is necessary because there is not

enough time to give notice to Defendant, hold a hearing, and issue a restraining order

before the irreparable injury, loss, or damage can occur. Specifically, there will not be

enough time to serve the Defendant priorto April 30 when she has indicated that she will

cancel the contract. There will not be enough time to schedule a hearing priorto the day

of the cancellation and Defendant will attempt to sell the property.

APPLICATION FOR TEMPORARY IN] UNCTION

14.1 Plaintiff asks the Courtto set his application for temporary injunction for a hearing

within fourteen (14) days and, after the hearing, issue a temporary injunction against

Defendant prohibiting them from cancelling the contract
for deed, selling, transferring any

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title or interest, pursuing any collection activity against the Plaintiff and/or against any

successors in interest, marketing for sale or lease, negotiating the sale, accepting any

sums of money, cashier’s check, personal check, money order, wire transfer, cash, or

anything of value for any or part of any interest in the property, and interfering with

Plaintiff's use of the properties.

ATTORNEY FEES

15.1 Attorney fees. Plaintiff is entitled to recover reasonable and necessary attorney

fees under Texas Civil Practice & Remedies Code chapter 38 because this suit is for

breach of a written contract. Plaintiff retained counsel, who presented Plaintiff's claim to

Defendant's duly authorized agent. Defendant
did not tender the amount owed within 30

days after the claim was presented.

J URY DEMAND

16.1 Plaintiff demands a jury trial and tender the appropriate fee with this petition.

PRAYER

17.1 For these reasons, Plaintiff asks that the Court issue citation for Defendant to

appear and answer, and that Plaintiff be awarded a judgment against Defendant for the

following:

a Actual damages;

b A temporary restraining order as requested above;

A temporary injunction as requested above;

Exemplary damages;

Attorney fees and court costs; and

Prejudgment
and post judgment interest;

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Court costs; and

All other relief to which Plaintiff is entitled.

Respectfully submitted,

LAW OFFICE OF
FRANCISCO J. RODRIGUEZ
1111 West Nolana, Suite A
McAllen, Texas 78504
Telephone No.: (956) 687-4363
Telecopier No.: (956) 687-6415

BY:___/s/ Francisco |. Rodriguez =-—
FRANCISCO J. RODRIGUEZ
State Bar No: 17145800
frankr@ mcallenlawfirm.com
DANIELLE C. RODRIGUEZ
State Bar No. 24075952
JARED A. CLARK
State Bar No. 24101626

ATTORNEYS FOR PLAINTIFF

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CAUSE NO.

ALMA HERNANDEZ § IN THE DISTRICT COURT

VS. § HIDALGO COUNTY, TEXAS

JENNIFFER ELIZABETH BANUELOS 5 JUDICIAL DISTRICT

VERIFICATION OF ALMA HERNANDEZ

BEFORE ME, the undersigned notary, on this day personally appeared ALMA

HERNANDEZ, the affiant, a person whose identity is known to me. After | administered

an oath to affiant, affiant testified as follows:

“My name is ALMA HERNANDEZ. | am capable of making this verification. The

facts in the foregoing Plaintiff's Original Petition, Application for Ex-Parte

Temporary Restraining Order and Request for Temporary Injunction and this

Verification have been interpreted to me from the English language to the Spanish

language. The facts stated in it are within my personal knowledge and are true

and correct.

| J. Be
AYMA HERNANDEZ

SUBSCRIBED AND SWORN TO BEFORE ME by ALMA HERNANDEZ on April

30, 2024.

aera Mauna
Notary Public, for the State of Texas

SONIA MAUPIN My Commission Expires: | | lax >)
My Notary 1D # 1048985
Expires November 28, 2027
Electronically Filed
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Hidalgo County District Clerks
Reviewed By: J uan Galvan
C-1996-24-J

CAUSE NO.

ALMA HERNANDEZ IN THE DISTRICT COURT

VS. HIDALGO COUNTY, TEXAS

JENNIFFER ELIZABETH BANUELOS JUDICIAL DISTRICT

STATE OF TEXAS §
AFFIDAVIT
COUNTY OF HIDALGO §

BEFORE ME, the undersigned authority, in and for Hidalgo County, State of Texas,

on this day personally appeared ANTONIA DAVILA, who, being by me duly sworn on oath

stated:

"My name is ANTONIA DAVILA. | am over twenty-one (21) years of age. |
am competent to make this Affidavit and have personal knowledge of all
facts set forth herein.
|, Antonia Davila, being fluent in the English and Spanish language, do
hereby certify that the facts in Plaintiffs Original Petition, Application for Ex-
Parte Temporary Restraining Order and Request for Temporary Injunction
and Verification have been faithfully interpreted from English to Spanish to
Alma Hernandez, to the best of my knowledge and ability on this the 30
day of April 2024.

The foregoing is true and correct to the best of my knowledge.

Further Affiant sayeth not.”

ANTONIA DAVILA
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SUBSCRIBED AND SWORN TO BEFORE ME on this 30" day of April 2024.

Lear Maus
Notary Public in and for the State of Texas
SONIA MAUPIN
My Notary ID # 1048985
Expires November 28, 2027 Commission Expires: ){L3v lot

Case Info

Judge

Israel Ramon, Jr. Track Judge’s New Case

Case No.

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Document Filed Date

April 30, 2024

Case Filing Date

April 30, 2024

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Exhibit,Appendix: Alma Hernandez VS. Jenniffer Elizabeth Banuelos

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