Laredo National Bank D/B/A as BBVA Compass Bank v. Myrna Elizabeth De Luna Morales

Opinion

ACCEPTED

13-14-00644-CV

THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS

7/9/2015 11:34:39 PM

CECILE FOY GSANGER

CLERK

No. 13-14-00644-CV

FILED IN

13th COURT OF APPEALS

IN THE COURT OF APPEALS

CORPUS CHRISTI/EDINBURG, TEXAS FOR THE THIRTEENTH DISTRICT OF TEXAS 7/9/2015 11:34:39 PM

CECILE FOY GSANGER

Clerk

LAREDO NATIONAL BANK D/B/A BBVA COMPASS BANK Appellant,

v.

MYRNA ELIZABETH DE LUNA MORALES, Appellee.

--------------------

On Interlocutory Appeal from the issuance of a Temporary Injunction in Cause No. 2014-DCV-2962-A in the 107th Judicial District Court of Cameron County, Texas, the Honorable Benjamin Euresti, Jr., Presiding

-------------------------

APPELLEE’S BRIEF

Hon. Philip Cowen

Law Office of Philip Cowen 500 E. Levee St.

Brownsville, Texas 78520

Tel. 956-541-6031

Fax 956-541-6872

email: ptchb@att.net

Hon. Noe Robles

Law Office of Noe Robles

23331 Tamm Lane

Harlingen, Texas 78552

Tel. (956) 440-8200

Fax (956) 440-8205

email: nrobelslawoffice@aol.com

NOTICE OF PARTIES

Appellee: MYRNA ELIZABETH DE LUNA MORALES Appellee’s Counsel:

Hon. Philip Cowen State Bar No. 24001933 Law Office of Philip Cowen 500 E. Levee St. Brownsville, Texas 78520 Tel. 956-541-6031 Fax 956-541-6872 email: ptchb@att.net

Hon. Noe Robles State Bar No. 17118250 Law Office of Noe Robles 23331 Tamm Lane Harlingen, Texas 78552 Tel. (956) 440-8200 Fax (956) 440-8205 email: nrobelslawoffice@aol.com

ii

Appellants:

Laredo National Bank D/B/A BBVA Compass Bank Hon. Selim H. Taherzadeh*

Trial and Appellate Counsel for Appellant:

Selim H. Taherzadeh, Trial and Appellate Counsel Taherzadeh, PLLC

5080 Spectrum Drive, Suite 1000 East Addison, TX 75001 Tel. (469) 791-0445 Fax (469) 828-2772 st@taherzlaw.com

Michelle Peritore, Appellate Counsel Taherzadeh, PLLC 5080 Spectrum Drive, Suite 1000 East Addison, TX 75001 Tel. (469) 791-0445 Fax (469) 828-2772 mp@taherzlaw.com

* Both second amended and prior plaintiff’s pleadings suggest that he is a defendant.

iii

STATEMENT REGARDING ORAL ARGUMENT Pursuant to Texas Rules of Appellate Procedure 39.1, Appellee does not request oral argument.

iv

TABLE OF CONTENTS

Page

Notice of Parties................................................................................ ii Table of Contents................................................................... ...... v Table of Authorities................................................................... ...... v ii Preliminary Statement....................................................................... 1 Statement of Facts............................................. .............................. 3 ISSUES PRESENTED ...................................................................... 6 Summary of Argument .................................................................. 7 Argument......................................................................................... 9

ISSUE#1: The District Court did not err when it issued a ...... 9 temporary injunction to stop a forcible detainer action from proceeding in the Justice Court.

Issue #2 Appellant has no Standing to ask this Court to declare ... 28 that Appellee has No Valid Cause of Action against Appellant or Probable Right to Recovery on Trial on the Merits. Appellant is effectively asking this court to issue an advisory opinion on the merits of its defense. Appellant’s brief, in general, is a request for this court to issue an illegal advisory opinion, and as such should be dismissed. Any relief sought in the brief should be denied as being moot as the appeal is simply a request for an advisory opinion.

ISSUE# 3 The fact that this case is now set for trial on.................... 32 August 10, 2015, with announcements and hearings on pending motions set for August 6, 2015, moots any relief this Court may provide. Therefore, the case should be dismissed.

Prayer for Relief .................................................................................. 35 Certificate of Service............................................................................ 36 Certificate of Compliance.......................................................................37

v

Appendix

Document Page No.

A. Deed of Trust CR542-565 1

B: Portion of Transcript of Hearing on Temporary Injunction 25 CR602-624

C Defendant Compass Bank's Amended Answer CRSupP86-89 48

D: Texas Business and Commerce Code SUBCHAPTER B. 52 NEGOTIATION, TRANSFER, AND INDORSEMENT Sec. 3.201 through 3.204.

E: Texas Business and Commerce Code 3.302(2)© 54 F. Note 55 G. Transfer of Lien 56 H. Modification and Extension Agreement 59

vi

TABLE OF AUTHORITIES

Supreme Court Cases Alabama State Fed'n of Labor v. McAdory, 325 U.S. 450 (1945)..............29 Allen v. Wright, 468 U.S. 737 (1984)........................................................29 Valley Forge Christian College v. Americans United for Separation............29 of Church and State, 454 U.S. 464 (1982) Warth v. Seldin, 422 U.S. 490 (1975)............................................................29

Texas Cases Aguilar v. Weber, 72 S.W.3d 729 (Tex.App.-Waco 2002)................13, 14, 27 Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424.............34 (Tex. 2002) Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002)...................................10 Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d 230 ................11 (Tex. App.—Houston [1st Dist.] 2003) City of Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366 ..............................33 (Tex. App.-Fort Worth 2001 Falcon v. Ensignia, 976 S.W.2d 336 (Tex.App.-Corpus Christi 1998)........14, 24 Firemen's Ins. Co. v. Burch, 442 S.W.2d 331 (Tex.1969)...................................29 Franklin Says. Ass'n v. Reese, 756 S.W.2d 14 (Tex.App.-Austin 1988).............11 Goggins v. Leo, 849 S.W.2d 373(Tex.App.-Houston [14th Dist.] 1993)............13 Haith v. Drake, 596 S.W.2d 194, 197 (Tex.Civ. App.—Houston........................18 [1st Dist.] 1980) Hayter v. Fern Lake Fishing Club, 318 S.W.2d 912.............................................12 (Tex.Civ.App.-Beaumont 1958) Hernandez-Perez v. State, No. 01-09- 00801-CR, 2010 WL 2133935...............33 (Tex. App.—Houston [1st Dist.] May 27, 2010 Home Sav. Ass'n v. Ramirez, 600 S.W.2d 911.....................................................13 (Tex.Civ.App.-Corpus Christi 1980) In re H&R Block Fin. Advisors, Inc., 262 S.W.3d 896(Tex. App.-Houston...33,34 [14th Dist.] 2008 Johnson v. Fellowship Baptist Church, 1. 627 S.W.2d 203..................................17 (Tex.App.—Corpus Christi 1981) McGlothlin v. Kliebert, 672 S.W.2d 231 (Tex.1984)...........................................18 Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169 ....................13, 21, 24, 26 (Tex.App.-Houston [1st Dist.] 1995) Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (Tex.1933)..............................29 vii

Pinnacle Premier Props., Inc. v. Breton, 447 S.W.3d 558......................................19 (Tex. App.-Houston [14th Dist.] 2014 Positive Feed, Inc. v. Wendt, Nos. 01-96-00614-CV & 01-96-01250-CV...........12 1998 WL 43321, *10 30 (Tex.App.-Houston [1st Dist.] Feb. 5, 1998) Rus-Ann Dev., Inc. v. ECC, Inc., 222 S.W.3d 921 (Tex.App.-Tyler 2007).........11 Slay v. Fugitt, 302 S.W.2d 698 (Tex.Civ.App.-Dallas 1957)................................13 Sparkman v. State, 968 S.W.2d 373 (Tex. App.-Tyler 1997)..........................21, 25 Tex. Ass'n of Business v. Air Control Bd., 852 SW 2d 440 (Texas 1993) ..........29 Texas Employment Comm'n v. International Union of Elec., Radio................30 TMC Med., Ltd. v. Lasaters French Quarter P'ship, 880 S.W.2d 789.......17. 18 (Tex. App.--Tyler 1993) and Mach. Workers, Local Union No. 782,352 S.W.2d 252 (1961) Trulock v. City of Duncanville, 277 S.W.3d 920 (Tex. App.—Dallas 2009)....33 Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821 (Tex. 2000)...................34 Williams v. Lara, 52 S.W.3d 171 (Tex. 2001)................................................33,34 Yarto v. Gilliland, 287 S.W.3d 83 (Tex. App.-Corpus Christi 2009).......10, 22,24

Constitutions Tex.Const. art. II, § 1 ..........................................................................................29 Rules and Statues

Texas Business and Commerce Code Sec. 3.202(2)(c).......................................24 Texas Business and Commerce Code Sec. 3.203 ................................................23 Texas Business and Commerce Code Sec. 3.204 ................................................23 Tex. Pro. C. Sec. 22.002........................................................................................18 Tex. R. Civ. P. Rule 746 ........................................................................................17

viii

No. 13-14-00644-CV

IN THE COURT OF APPEALS

FOR THE THIRTEENTH DISTRICT OF TEXAS

LAREDO NATIONAL BANK D/B/A BBVA COMPASS BANK Appellant,

v.

MYRNA ELIZABETH DE LUNA MORALES, Appellee.

--------------------

On Interlocutory Appeal from the issuance of a Temporary Injunction in Cause No. 2014-DCV-2962-A in the 107th Judicial District Court of Cameron County, Texas, the Honorable Benjamin Euresti, Jr., Presiding

-------------------------

TO THE HONORABLE JUSTICES OF THIS COURT:

Comes now, MYRNA ELIZABETH DE LUNA MORALES, hereinafter referred to as Appellee, who submits this brief, pursuant to the provisions of the Texas Rules of Appellate Procedure, in support of her request for this court to sustain and affirm the 107th District Court’s Temporary Injunction, and other remedies, in cause number 2014-DCV-2962-A. PRELIMINARY STATEMENT This is an Appeal of Order Denying Appellant Compass Bank’s Motion to

2

Dissolve an Order Granting a Temporary Injunction in cause no. 2014-DCV-2962-A.

On April 1, 2014, for various reasons alleged in Appellee’s pleadings, an illegal and invalid foreclosure sale took place whereby Compass Bank through Trustees, who are also trial and appellant’s counsel, attempted to sell property belonging to Appellee. There are a good many factual points which do not appear to be disputed. . On May 12, 2014, Appellee filed its Original Petition. CR 7. On June 4, 2014, Appellant Compass Bank filed its Motion to Dismiss and Motion for Sanctions. CR 59. On June 16, 2014, Appellant filed a Motion to Deny the Temporary Injunction. CR 241. On June 26, 2014, the Court entered an Order granting the Appellee’s Request for a Temporary Injunction. CR 372. On August 1, 2014, Appellant filed a Motion for Summary Judgment. CR 522. On September 23, 2014, the Appellant filed a Motion to Dissolve Temporary Injunction Order or in the Alternative to Modify the Order. CR 667. On October 31, 2014, the Court entered an Order Denying the Appellant’s Motion to Dismiss, Motion for Summary Judgment and Motion to Dissolve the Temporary Injunction. CR 684-86. While the subject matter of this appeal appears to be the Denying Appellant’s Motion to Dissolve Temporary Injunction Order or In the Alternative to Modify the Ordered Entered and also the Order Denying Appellant’s Motion to Dismiss and Order Denying Appellant’s Motion for Summary Judgment Entered, all that can be appealed is the Order denying appellant’s trial Motion to Dissolve Temporary Injunction. CR 684-86.

Although that may be the case, on March 16, 2015 Appellants, and Appellants’ Counsel have filed a second motion to dissolve the temporary inunction, entitled Compass Bank’s Second Motion to Dissolve Temporary Injunction Order. See Supplemental Clerk’s Record, p. 4, hereinafter CRSupP4.. Appellant amended its answer Seven days ago on July 2, 2015.

3

CRSup86.Plaintiff amended her pleadings July 7, 2015. CRSupP91. STATEMENT OF THE FACTS On April 1, 2014, Appellant Compass Bank, believing it had the right to exercise a power of sale noted in paragraph 22 of a January 24, 2006 Deed of Trust, but in fact not having the right to exercise the power of sale nor to appoint a substitute trustee, illegally sold the property at issue to itself as sole bidder at a foreclosure sale.1 The record shows that Appellant Compass Bank had never had the Note and Deed of trust negotiated to it by Laredo Bank, although there is a claimed merger of the institution which is not explained anywhere within Appellant’s brief, but is briefly noted. CR670–by merger claim.

Prior to the sale, Appellee had arranged more than once for the property to be sold but due to intransigence by Appellant Compass Bank, and Appellant’s counsel, and perhaps misconduct, Appellee was not able to cure an alleged deficiency, nor to effect a sale of her property. Appellee relied to her detriment on assurances made to her. That reliance also led to the situation she now fights. CR614.

Appellee never received notice of the sale as Appellant, with full knowledge of where Appellee was, sent notice through regular mails to the County of Mexico. CR627 –Appellee’s statement attributed to Compass Bank that “It’s not my problem that the postal service in Mexico is not a good one.”, also showing no notice of date of sale nor amount due. Appellant never provided any amount for Appellant to pay to cure any deficiency. Id. Appellant never provided a payoff amount to pay the amount in full.CR614. Appellant’s pleadings admit the

1 The Deed of trust is not negotiated to Compass by Laredo National Bank. See, CR541-

564, which contains no endorsement. As such, any Substitute’s trustee’s deed is invalid. CR260.

4

substance of these complaints, as well as the substance of a newly filed new claim of detrimental reliance and tortious interference with contract. CRSupP83 and 111. .

There is no argument that there s a Deed of Trust involving Appellee and Laredo National Bank. However, while the note is alleged to be in Compass Banks hands, for Compass Bank to be able to exercise the rights noted in Paragraph 22, the note needed to be negotiated to Compass and apparently has not been so negotiated. As such, there is actually no Parties Agreement between Compass and Appellee. There is no argument however, that on January 24, 2006, Myrna Elizabeth de Luna Morales (“Appellee”) signed a 30-year loan agreement (the “Note” or “Loan”) in which she agreed to repay $291,200.00 to Laredo National Bank in monthly installments of $1,937.37 beginning March of 2006. Appellee obtained the loan so that she could purchase a home located at 6503 Fountain Way, South Padre Island, TX 78597 (“Premises” or “Property”). CR 264.

No title passed at the sale as the trustees violated the terms of paragraph 22, and as the trustees were without authority, and as the trustees had orally granted approval for Appellee to sell the property to another. The foreclosure sale occurred on April 1, 2014 as noticed, and Appellant purchased the home for $308,000.00. CR 238. When the property was finally sold, it was sold at over $242000,00 below market value. RR27-31.

The Appellee’s Original Petition was filed on May 12, 2014. CR 7. Appellant Compass Bank filed its Original Answer on May 23, 2014. CR 51. A temporary injunction hearing was held on May 27, 2014. As a result of a Rule 11 Agreement, the hearing was reset for June 5, 2014. CR 54. The temporary injunction hearing was held on June 5, 2014, and the temporary restraining order was extended to June 18, 2014. Appellant Compass Bank filed a Motion to

5

Dismiss and Motion for Sanctions on June 4, 2014. CR 59. On June 11, 2014, the Appellee filed its First Amended Petition. CR 194. On June 16, 2014, Appellant filed a Motion to Deny Temporary Injunction. CR 241. On June 26, 2014, Appellant filed a Second Motion to Deny Temporary Injunction. CR 376. The Trial Court entered an order granting a Temporary Injunction on June 26, 2014. CR 372. On July 28, 2014, Appellant filed its Second Motion to Dismiss. CR 508. On August 1, 2014, Appellant filed a Motion for Summary Judgment. CR 522. On September 9, 2014, Appellant filed a Motion to Dissolve Temporary Injunction Order or in the Alternative to Modify the Order. On October 31, 2014, the Trial Court entered an Order denying the Motion to Dissolve the Temporary Injunction. CR 684. On October 31, 2014, the Court also entered an Order denying Appellant’s Motion to Dismiss and an Order Denying Appellant’s Motion for Summary Judgment. CR 684-86. As a result, this Appeal ensued.

A good indication of the District Court’s opinion about the strength of Compass Bank’s position is reflected in the granting of a one time bond of $1000.00, rather than a monthly bond as proposed by Appellant’s trial counsel. CR6659-660.

6

ISSUES PRESENTED

ISSUE#1: The District Court did not err when it issued a temporary injunction to stop a forcible detainer action from proceeding in the Justice Court.

Issue #2 Appellant has no Standing to ask this Court to declare that Appellee has No Valid Cause of Action against Appellant or Probable Right to Recovery on Trial on the Merits. Appellant is effectively asking this court to issue an advisory opinion on the merits of its defense. Appellant’s brief, in general, is a request for this court to issue an illegal advisory opinion, and as such should be dismissed. Any relief sought in the brief should be denied as being moot as the appeal is simply a request for an advisory opinion.

ISSUE# 3 The fact that this case is now set for trial on August 10, 2015, with announcements and hearings on pending motions set for August 6, 2015, moots any relief this Court may provide. Therefore, the case should be dismissed.

7

SUMMARY OF THE ARGUMENT

The District Court did not err when it issued a temporary injunction to stop the forcible detainer (or perhaps forcible entry and detainer) action from proceeding in the Justice Court. Appellee establishes all three bases for issuance of a temporary injunction. Appellant’s action in Justice Court should have been interrupted by the Appellee’s claim in District Court. Forcible entry and detainer or forcible detainer action, as Appellant uses these interchangeably, would have removed Appellee from the place she calls her home. Case law shows that the loss of one’s home is an irreparable injury, one for which there is no remedy at law. As such, there is good cause for the district court to issue the temporary injunction.

Not only does the Appellee have a cause of action against the Appellant with a more than probable right to recovery at a trial on the merits, Appellee cannot show a probable, imminent, and irreparable injury simply because the property in question is the property she considers to be her home.

Appellant seeks to have this court issue an advisory opinion declaring that its theory of tenancy at sufferance is superior to any other claim made by Appellee. Appellee has theories of its own which show that Appellant had no authority to exercise the power of sale, nor to appoint substitute trustees, but, again, just because these are good theories and may be dispositive on the merits

8

has no bearing on the matter at hand. All appellant has to do is to maintain a claim which has probable relief if evidence is adduced at trial to support the claims.

The facts and the law show that the Trial Court’s order should be affirmed and that the injunction should remain in plain so long as the District Court finds that the situation requires it. It is up to Appellant to push this case forward, to trial, if need be. That is the quickest solution to the issues at hand and, if successful, will provide Appellant the shortest route to the relief Appellant seeks.

Finally, just because so much time has elapsed, and because trial is now set for August 10, 2015, this appeal is moot, and should be dismissed as asking this court to issue an advisory opinion.

9

ISSUE#1: The District Court did not err when it issued a temporary injunction to stop a forcible detainer action from proceeding in the Justice Court.

The Trial Court did not err in denying Appellant’s Motion to Dissolve a

Temporary Injunction because Appellant has no right to the immediate possession of the Premises and because Appellee’s issues in her pleadings raise genuine title issues preventing a justice court from taking the case. The true issue here is not whether Appellee defaulted on her loan, but whether Appellant foreclosed on the Property in accordance with the Note and Deed of Trust, whether Appellant had the power of sale as a holder of the note, and whether Appellant prevented cure of a deficiency thus invalidating the sale. RR 29, CR 276. Part of the subject matter of the suit is the unlawful attempt to sale the property at a foreclosure sale when Appellant had no legal right to sell the property. Part of the suits has to do with how Appellee relied on promises and assurance by Appellant and then Appellant betrayed those promises. Part of the suits concerns the fact that such statements make Appellant effectively a fiduciary for Appellee. After the abortive foreclosure sale, Appellee had every legal right to remain in possession of the Property. And, on that same theory, Appellant had not right to to file a forcible detainer or forcible entry and detainer action in Justice Court in order to obtain possession of the Property. The June 26, 2014, District Court Temporary Injunction enjoining

10

proceeding on the forcible detainer action in Justice Court reflects the reality of an abortive foreclosure. CR 372. Standard of Review:

The standard of review for a court of appeals to review the appropriateness of a district court’s issuance of a temporary induction is for abuse of discretion.2 See Yarto v. Gilliland, 287 S.W.3d 83, 88 (Tex. App.-Corpus Christi 2009, no pet.)

Texas law is clear that the burden of proof for a temporary injunction is on the party seeking the injunction. To obtain a temporary injunction, a party must plead and prove three specific elements (1) a cause of action against the defendant; (2) a probable right to recovery following a trial on the merits; and (3) a probable, imminent, and irreparable injury in the interim See Yarto, at 88. See also, Appellant’s reference to Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002), which refers to questions about temporary injunctions, but actually involves a dispute about whether the Texas Motor Vehicle Board has exclusive jurisdiction over a prospective car dealership transferees' claims that raise an issue

2 Appellant appeals the denial of the motion to dissolve the temprary injunction, not the issuance of the injunction itself. As such, this court may not have standing. See Brief, at 1, first sentence.

11

about how to construe the Texas Motor Vehicle Commission Code. Id., at 201.

A temporary injunction is an extraordinary remedy that does not issue as a matter of right. Butnaru, 84 S.W.3d at 204. An injury is “irreparable” if the injured party cannot be adequately compensated in damages, Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d 230, 236- 37 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (en banc).

Appellee claims that she has meet all these burdens, and while Appellant did not claim that the trial court abused his discretion, claims that had Appellant so charged, the trial court in fact did not abuses its discretion in denying the motion to dissolve the temporary injunction. Loss of home is an irreparable injury.

Much of Appellant’s brief argues that Appellee can not prove any irreparable injury, almost ignoring the reference by Appellee in her pleadings that the property is her home. The loss of a home is an irreparable injury, for which Appellee cannot be adequately compensated in damages. Rus-Ann Dev., Inc. v. ECC, Inc., 222 S.W.3d 921, 927 (Tex.App.-Tyler 2007, no pet.); see Franklin Says. Ass'n v. Reese, 756 S.W.2d 14, 15-16 (Tex.App.-Austin 1988, no writ) (op. on reh'g) ("Since it is obvious that appellee would probably be injured if the property were foreclosed and sold, the only question here is whether the trial court

12

erred in determining there was a probable right of recovery."); Hayter v. Fern Lake Fishing Club, 318 S.W.2d 912, 914 (Tex.Civ.App.-Beaumont 1958, no writ) (finding that actions affecting one's use and enjoyment of his home is an irreparable injury); see also Positive Feed, Inc. v. Wendt, Nos. 01-96-00614-CV & 01-96-01250-CV, 1998 WL 43321, *10, 1998 Tex. App. LEXIS 774, *30 (Tex.App.-Houston [1st Dist.] Feb. 5, 1998, pet. denied) (mem. op.) ("We hold that loss of enjoyment or the reasonable use of one's home can be an irreparable injury for purposes of injunctive relief."). The property in question is Appellant’s South Padre Island home. Pleadings provide Specific Evidence of Title Dispute There is a probable right to recovery based on numerous claims in Appellee’s petition, originally, and as amended. While Injunctive relief brought through a District Court to stop an eviction through a forcible detainer action might be appropriate in some instances, where it is clear as her that title issues are in play which need to be determined prior to any forcible entry and detainer or forcible detainer action, the Justice Court has no jurisdiction. Very simply, because there are specific titles issues at play in in this suit in District Court, and where the Justice Court has notice of these issues, the justice court cannot act. The pleadings in this case are specific evidence of a title dispute.

13

In Aguilar v. Weber, 72 S.W.3d 729, 734-35 (Tex.App.-Waco 2002, no pet.), the Aguilar court, found "specific evidence" of a title dispute based on the party's assertions in the pleadings, rather than on evidence to support those assertions. Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex.App.-Houston [1st Dist.] 1995, writ denied). This court, in Yarto, above, noted Aguilar with approval. See, Yarto, fn. 43.

The Aguilar court also noted specifically that jurisdiction of forcible detainer actions is expressly given to the justice court of the precinct where the property is located and, on appeal, to county courts for a trial de novo. See Tex. Prop.Code Ann. § 24.004 (Vernon 2000); Goggins v. Leo, 849 S.W.2d 373, 375 (Tex.App.-Houston [14th Dist.] 1993, no writ); Home Sav. Ass'n v. Ramirez, 600 S.W.2d 911, 913 (Tex.Civ.App.-Corpus Christi 1980, writ ref'd n.r.e.). The Aguilar court also noted that a justice court is expressly denied jurisdiction to determine or adjudicate title to land. Tex. Gov't Code Ann. § 27.031(b) (Vernon Supp.2001); Slay v. Fugitt, 302 S.W.2d 698, 701 (Tex.Civ.App.-Dallas 1957, writ ref'd n.r.e.). Thus, a justice court, has no jurisdiction to determine the issue of title to real property in a forcible detainer suit. Tex.R. Civ. P. 746; See Mitchell , 911 S.W.2d at 17.

14

In the instant case, the pleadings themselves are evidence that a title dispute is at issue.

In the case at hand, Appellees pleadings provide the specific evidence of a title dispute. As such, the Justice Court has no jurisdiction. Id. In this case, any justice court will lack jurisdiction because Appellee’s pleadings are themselves specific evidence of a title dispute, as was the case in Mitchell, 911 S.W.2d at 169; see also Falcon v. Ensignia, 976 S.W.2d 336, 338 (Tex.App.-Corpus Christi 1998, no pet.). Appellee’s Petition and Amended Petitions have always disputed the alleged default and challenged the right to possession under the contract under various theories, alleging lack of authority under the Deed to exercise the power of sale, and alleged lack of authority because Appellee was never provided the opportunity to cure any alleged deficiency. Determining the right of possession necessarily involves a title inquiry into the contractual provisions of Section 19 and 22 of the deed, as well as the problems with the failure to allow Appellee to cure on the various bases she claims in her pleadings and claimed at the temporary injunction hearing. See, Aguilar, at 735. See also Aguilar at 733-734 relating to the fact that a forcible detainer3 case in inappropriate unless there is a

3 A various points in the brief, Appellant seems to use these terms interchangeably. They are not interchangeable. Brief at 1, Forcible detainer; brief at 6, 10, 11, forcible entry and detainer. It is not clear from the record exactly what Appellant tried to file in the justice court, as

15

landlord-tenant relationship.

Any justice court would have to determine whether Appellant legally was empowered to exercise the power of sale, and whether there was, in effect, an opportunity to cure, under Section 19 of the deed of trust, and if not whether that failure removed the authority by anyone under the deed of trust to sale the property under Section 22. Justice courts are not meant to decide such issues. District courts are. They certainly do not try trespass to try title cases. Thus, it was proper for the District Court to enjoin any action of removal under any authority claimed by Appellant that a justice court had to evict Appellee. Thus, the District Court was correct in enjoining Appellant from trying to use a justice court to removed Appellee. Appellee has numerous causes of actions and all her claims are justicible and there are sufficient allegations to support taking the case to trial.

Under Texas law, a District Court can enjoin parties from proceeding on a forcible detainer or forcible entry and detainer action pending in Justice Court, and in support Appellant states. Now, months after the hearing on setting aside

Appellant has not provided this court with a copy if its pleadings submitted to a justice of the peace court. As Aguilar show, no forcible detainer proceeding could be effected. Under the same case, the specific evidence of the pleadings themselves, with the claims made, which are cognizable under Texas Law, are themselves evidence of a title dispute.

16

the temporary injunction, Appellant amended its answers. These were just recently entered into the record. CRSupP86-89. The amended answer, other than the general denial, does not assert any affirmative defenses or any defenses to the issue of wrongful foreclosure, reliance issues within the DTPA which may survive the DPTA claim on their own, and the trespass to try title claim. By the very act of amending its answer, Appellant has conceded that those claims were justiciable at the time the petition and amended petition was filed.

Since the inception of this appeal, on July 7, 2015, Appellee/Plaintiff has added Substituted Trustee, present trial and appellate counsel, Selim H. Taherzadeh, a party to the lawsuit. CRSupP91. It appears that both appellant and Selim H. Taherzadeh are being sued now for damages based on detrimental reliance based on Selim H. Taherzadeh and other’s actions. CRSupP91. Both are also being sued for tortious interference with contract. CRSupP103. Selim H. Taherzadeh is now also being sued for breach of fiduciary duty. Selim H. Taherzadeh is also being sued for negligence. CRSupP101. Whether acting in his own capacity or for Compass, it appears that the pleadings essentially now include Selim H. Taherzadeh as a defendant. As such, he is technically and Appellant to this suit. Thus, as to breach of fiduciary duty, Appellant’s counsel has what he wanted, a claim that now includes the trustee as violating a fiduciary duty, as well

17

as a claim that Compass Bank was also defacto a fiduciary. Appellees claims are proper claims with remedies provided in law There is no question that there is a cause of action pending concerning the property at issue. In its brief, Appellant argues incorrectly that the Justice Court alone has the jurisdiction to determine the immediate possessory rights of the parties. Brief at 1, referring to TMC Med., Ltd. v. Lasaters French Quarter P'ship, 880 S.W.2d 789, 791 (Tex. App.--Tyler 1993). Nothing in this case suggests that title disputes in District Court can proceed The problem with Appellant's arguments and cases is that they deal with Landlord Tenant relationships, and not with issues involving whether a person has legally and effectively lost title. French Quarter P'ship shows explicitly in its holding that questions of title are not appropriate issues for a justice of the peace courts to determine. Id, 880 S.W.2d 791, referring to Tex. R. Civ. P. Rule 746 and Johnson v. Fellowship Baptist Church, 1. 627 S.W.2d 203, 204 (Tex.App.—Corpus Christi 1981, no writ). In French Quarter P'ship the court noted that in that case "the tenant's right to possess leasehold property does not present any question of title, disputes regarding such possession are subject to the jurisdiction of the appropriate justice court, whose jurisdiction in these types of action is exclusive. Id., referring to Haith v. Drake, 596 S.W.2d 194, 197 (Tex.Civ. App.—Houston

18

[1st Dist.] 1980, writ ref'd n.r.e.). McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex.1984). This case is more than a landlord/tenant case. Any wrongful foreclosure suit is essentially a title dispute, the main arguments being whether the forecloser had both the right to foreclosure but also whether the forecloser did it right, and, additionally, whether the person attempted to be foreclosed on has any defenses against the foreclosure, including whether the one foreclosed upon acted in reliance on the actions and promises made by the one foreclosing or his or her agents. Because the justice court does not have the skills to handle title cases, nor has the jurisdiction to do so, the district court was right in enjoining the exercise of the justice court's jurisdiction. Id., 880 S.W.2d 791. Here, in the very pleadings asserted by Appellee/ Plaintiff, and wronged party, there is a clear showing that the justice court is without jurisdiction to proceed in the cause because the suit is a title dispute. Certainly, a trespass to try title case is a title suit. Under the Texas Property Code, Sec. 22.002, any evidence of title is sufficient to support the cause of action, and a final judgment against the other party establishes title or right to possession of real property and that judgment is conclusive against the party from whom the property is recovered and against a person claiming the property through that party by a title that arises after the action is initiated. Tex. Pro. C. Sec. 22.002. Plaintiff /Appellee’s pleadings are sufficient evidence in themselves to

19

destroy the jurisdiction of the justice of the peace court. This is not landlord-tenant dispute over possession of the leased premises, which is the subject matter of Appellant's cases.

Section 22 of the Deed of Trust references to the Borrower becoming a Tenant at sufferance after foreclosure is a boilerplate statement which very likely has been incorporated into a Texas Deed of Trust to avoid litigation. However, nothing in Section 22 relates to whether the sale by a trustee or substitute trustee is presumptively correct in form, nor does its provide any guidance to a District Court or to this court when there are title issues present in a District Court case. Plaintiff’s Pleadings themselves are specific evidence of a title dispute. The District Court was correct in not allowing Appellant to try to evict Appellee, as it is clear that a less learned judge, dealing only with petty issues, would not have the ability to sort out title issues, nor should he or she be allowed to. See Pinnacle Premier Props., Inc. v. Breton, 447 S.W.3d 558, 564 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (op. on reh'g) (holding that no intertwined title issue existed when the defendants' title dispute was based entirely on contentions that the foreclosure sale was conducted improperly and that the lender had assigned the note to another bank). Here, there is more than a claim about a foreclosure sale that was conducted improperly; there is also a claim that it was conducted

20

illegally. Id. There is also a trespass to try title claim, a claim that Appellant would not allow Appellee to cure, and other similar claims which go directly to the issue of title. Appellee argues in her pleadings that if Appellant had permitted her to cure, and had given her the figures she needed, there would have been no default.

Appellee’s First Amended Pleadings, pps. 4 and 6, alleged violations of Paragraph 19 “the right to cure” “prior to foreclosure”, “Plaintiff was willing and able to pay-off the entire note. See CR194-209, but after this the page numbers of the actual Petition are used. Defendant ignored her pleas and instead foreclosed on the home” –all these concern questions of title, and not just the formalities of the foreclosure. Page 7 of the First Amended pleadings reflects a genuine contract dispute, both based on course of dealings, and on the contract, assuming it has been negotiated to Compass Bank. Appellee also claimed that she as “Plaintiff sought to exercise her rights and notified Bank and its agents that she was willing and able to cure the default and/or pay-off the total mortgage debt. The Bank acting through its agent declined and denied Plaintiff her rights as a Borrower thereby breaching the contract with Plaintiff.” Id. When these claims are stacked up against the strength of the alleged tenant at sufferance claim, Appellant’s tenant at sufferance argument is simply irrelevant.

21

Evidence of a title dispute is also raised in Appellee’s pleadings in the issues revolving around the DTPA claim, specifically the reliance and recision issues contained therein. See, page 4 of Amended Pleading, “The Bank agreed to give Plaintiff (Appellee) quiet enjoyment of her home and that it would exercise due diligence and good faith in the performance of their fiduciary duties to plaintiff under the terms of the contracts and Deed of Trust.” See also, the reliance issue, “Plaintiff relief on Defendants to treat her fairly and accordingly.” See also the Breach of Conduct Claim, p. 6. wherein it notes that the Trustee failed to specify the date and the deadline on which buyer in default had to comply and cure the default.” See also, “The Bank acting through its agents declined and denied Plaintiff her rights as a Borrow thereby breaching the contract with Plaintiff.” P. 7, 1sst Amended Pleadings. Here, explicitly, thus, there is an issue concerning title as it relates to the contract between the alleged parties. Such title disputes take away a justice court's jurisdiction. See Sparkman v. State, 968 S.W.2d 373, 377-78 (Tex. App.-Tyler 1997, no pet.) (citing Mitchell, 911 S.W.2d at 170 (holding appellant raised title as an issue in the justice court and county court at law by asserting that substitute trustee's deed held by appellee was void, and by specifically giving notice that litigation was pending in the district court to set aside the non-judicial foreclosure sale). Because, in this case a genuine title

22

dispute has been raised in the district court in Appellee’s pleadings, the justice court cannot take jurisdiction. The District Court was correct in enjoining such action for that reason. Furthermore, Appellant cannot just walk into the Justice Court and pretend there is no suit pending in District Court. A justice court might accept the suit anyway, and evict Appellant applying bad law. That is why District Court’s enjoin these types of actions in these types of cases. The very fact of filing the pleadings or the very fact of the counterclaims by appellant raises title issues. Further, Appellants are on notice that litigation is pending in a district court to set aside the non-judicial foreclosure sale and part of the basis of that set aside is a dispute concerning title. See Yarto v. Gilliland, 287 S.W.3d 83, 87 (Tex. App.-Corpus Christi 2009, no pet.), referring to Mitchell, 911 S.W.2d at 170. It appears that Appellee will win as Appellant had no right to exercise power of sale Furthermore, on the face the Deed of Trust which Appellant brings to this court does not reflect that Appellant has the right to exercise the power of sale. Appellant claims to be the holder of the note, but please note that Appellant has not provided this court nor the District Court anything in discovery which evidences that the note for which Laredo National Bank was a holder was ever negotiated to them. See, Appendix p. 55, the Note, Appendix p. 56 a sample of a

23

prior transfer of the note to Laredo National Bank by a prior holder. In the Modification noted in Appendix 59, while Compass Bank claims it now owns the note, it does not stated that the Laredo National Bank has negotiated the note to them by endorsing it, as the Transfer does on Appendix 55. No transfer or negotiation of the note is evidenced here in this case. Neither the note, nor the deed of trust, has been negotiated to Defendant/Appellant Compass Bank. The Note lists The Laredo National Bank as the lender. See, Note, Appendix, page 56.4 The Note recognized that the Deed of Trust and the Note are a “Security Instrument.” The Deed of Trust notes that Jose C. Gonzalez is the trustee. Compass Bank and someone other than Jose Gonzalez are involved in the foreclosure, not the Laredo National Bank. Compass Bank claims to be a successor by Merger to Laredo National Bank. The documentation presented to both this court and the District court does not reflect compliance with Texas Business and Commerce Code Sec. 3.203, and 3.204 (indorsement is a signature which is made for the purposes of negotiating the instrument. See also, Sec. 3.302(2)© HOLDER IN DUE COURSE, referring in (2) to “the holder took the instrument:”© Except to the extent a transferor or predecessor in interest has

4 Counsel would love to provide this court a copy of the entire Note. However, Appellee does not have her copy. And, Appellant has not provided, through Discovery, any copy showing or evidencing an endorsement negotiated the note to Companss by Laredo National Bank.

24

rights as a holder in due course, a person does not acquire rights of a holder in due course of an instrument taken: (1) by legal process or by purchase in an execution, bankruptcy, or creditor's sale or similar proceeding;(2) by purchase as part of a bulk transaction not in ordinary course of business of the transferor; or (3) as the successor in interest to an estate or other organization. Formalities are important.

Appellant claims that none of the theories under which Appellant claims to argue that the District Court erred has any merit. See Yarto v. Gilliland, 287 S.W.3d 83, 87 (Tex. App.-Corpus Christi 2009, no pet.); Mitchell, 911 S.W.2d at 170. Under Sec. 3.202(2)© Compass bank is simply not the holder who may exercise the power of sale. Yarto and this Case are similar This case is a miniature version of Yarto. The case in Yarto is very instructive and should provide this court with the rationale for rejecting any claims that the trial court erred in granting the injury. In Yarto, Robert Yarto, referring to Falcon v. Ensignia, 976 S.W.2d 336 (Tex. App.-Corpus Christi 1998, no pet.) maintained that the Gillilands failed to bring the justice court's jurisdiction into question because they presented no specific evidence of a title dispute. Id., 287 S.W.3d at 87. In Falcon, Appellee Ensignia purchased a motel from Hernandez

25

and subsequently brought a forcible entry and detainer action against the Falcons in a justice court. Falcon, 976 S.W.2d at 336. The Falcons, who had been managing and residing in the motel for some time, refused to vacate upon Ensignia's request.. Id., 976 S.W.2d at 337.The Falcons filed a written answer in the justice court, wherein they alleged that they had entered into an oral contract for the purchase of the property from an Hernandez prior to Ensignia's purchase of the property. Id., 976 S.W.2d 337-38,The Falcons never produced any writing evidencing this conveyance. Id. Ensignia, on the other hand, filed a copy of the warranty deed and vendor's lien evidencing his purchase and ownership of the property. Id. The justice court rendered judgment in favor of Ensignia, and the Falcons appealed to a county court for a trial de novo. Id. After Ensignia moved for summary judgment, and the Falcons failed to file a response, the county court granted summary judgment in favor of Ensignia. Id. The Falcons then appealed to this Court, arguing that the lower courts were without jurisdiction to determine title. Id. This Court in Falcon rejected the argument, stating:

We do not believe a genuine title dispute was ever raised in either court. Falcon referred to an oral agreement between him and Gonzalez [sic], but such agreement is unenforceable as a matter of law. Specific evidence of title dispute is required to raise an issue of a justice court's jurisdiction. Without the Falcons having presented specific evidence to raise a genuine title dispute, the jurisdiction of the court was never at issue.

Id. at 338 (emphasis added) (citing Sparkman v. State, 968

26

S.W.2d 373, 378 (Tex.App.-Tyler 1997, pet. ref'd)) (citing Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex.App.-Houston [1st Dist.] 1995, writ denied)).

That lack of a genuine title dispute was not present in Yarto, as it is not present here. Here there is a genuine title dispute based on the pleadings. The Yarto’s Court's demand for specific evidence of a title dispute, referred to in Falcon, above, rested on Sparkman v. State, wherein the Tyler Court of Appeals—citing the Houston First Court of Appeals' opinion in Mitchell v. Armstrong Capital Corporation as its example —observed that "courts have required specific evidence of a title dispute before determining that a title dispute deprived a justice court of jurisdiction in an action for forcible entry and detainer." Sparkman, 968 S.W.2d at 378 (citing Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex.App.-Houston [1st Dist.] 1995, writ denied)). The Yarto court posed this question: “what specific evidence did the Mitchell court really require? 287 S.W.3d 83, 87 Id., Yarto, at 87. It answered that question by noting that in Mitchell, Armstrong Capital first prevailed on a forcible detainer action against Mitchell in a justice court, and then later in a county court. Id., 911 S.W. 2d at 171. Mitchell appealed, arguing that the county court did not have subject-matter jurisdiction over the case. Id. In addressing the argument, the court

27

of appeals stated that "[i]f it becomes apparent that a genuine issue regarding title exists in a forcible detainer suit, the [justice or county] court does not have jurisdiction over the matter."Id. The court then ruled in Mitchell's favor, stating:

Appellant Mitchell raised title as an issue in the justice court and county court at law by asserting that the Substitute Trustee's Deed held by Armstrong Capital was void, and by specifically giving notice that litigation was pending in the 268th District Court to set aside the non-judicial foreclosure sale. Because a "title issue" was involved in the courts below, they had no subject matter jurisdiction over the case. 911 S W. 2d at 171.

Id., Yarto, at 88.

The Yarto Court noted that the Mitchell opinion does not reference any evidence Mitchell presented to support her claim that Armstrong Capital's deed was void; rather, the opinion merely establishes that Mitchell was able to raise a title dispute through her assertions and notice of pending litigation. The court then held that it interpreted "specific evidence" as consisting of nothing more than the various assertions that comprise a party's title claim, and concluded that "specific evidence" of a title dispute exists when through those assertions, a party has asserted a basis for title ownership that is not patently ineffective under the law and is intertwined with the issue of immediate possession. The Yarto court noted that The Waco Court of Appeals in Aguilar v. Weber, 72 S.W.3d 729, 734-35 (Tex.App.-Waco 2002, no pet.). Accordingly, the Aguilar court, like the Mitchell court, found "specific evidence" of a title dispute based on the party's assertions, rather than on evidence to support those assertions

28

Conclusion.

There is nothing patently ineffective under the law concerning Appellee’s pleadings. Id., Yarto, generally. All factors to support maintaining the temporary injunction are present.

There is a cause of action here; in fact, many, as evidenced in Appellee’s pleadings. The pleadings themselves are evidence of a title dispute. Finally, appellees loss of her South Padre Island home is something which courts have found to be irreparable Although Appellant does not once claim that the trial court abused his discretion in granting the temporary injunction, it is clear that the trial court did not abuse its discretion at all, but, after careful consideration of the evidence after a fifty page hearing, ruled against Appellant. The temporary injunction should remain in place, until the conclusion of the trial not set for August 10, 2015.

Issue #2 Appellant has no Standing to ask this Court to declare that Appellee has No Valid Cause of Action against Appellant or Probable Right to Recovery on Trial on the Merits. Appellant is effectively asking this court to issue an advisory opinion on the merits of its defense. Appellant’s brief, in general, is a request for this court to issue an illegal advisory opinion, and as such should be dismissed. Any relief sought in the brief should be denied as being moot as the appeal is simply a request for an advisory opinion.

Standard of Review Standing is never presumed and cannot be waived. Tex. Ass'n of Business v.

29

Air Control Bd., 852 SW 2d 440 - Tex: Supreme Court 1993. One limit on courts' jurisdiction under both the state and federal constitutions is the separation of powers doctrine. See Tex.Const. art. II, § 1; Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471-74 (1982); Warth v. Seldin, 422 U.S. 490, 498 (1975). Under this doctrine, governmental authority vested in one department of government cannot be exercised by another department unless expressly permitted by the constitution. Thus the Texas Supreme Court and other Texas courts have construed the Texas separation of powers article to prohibit courts from issuing advisory opinions because such is the function of the executive rather than the judicial department. Tex. Ass'n of Business v. Air Control Bd., 852 SW 2d 440 - Tex: Supreme Court 1993), referring to Firemen's Ins. Co. v. Burch, 442 S.W.2d 331, 333 (Tex.1969); Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 644 (Tex.1933).

The distinctive feature of an advisory opinion is that it decides an abstract question of law without binding the parties. Alabama State Fed'n of Labor v. McAdory, 325 U.S. 450, 461 (1945); Firemen's Ins. Co., 442 S.W.2d at 333. An opinion issued in a case brought by a party without standing is advisory because rather than remedying an actual or imminent harm, the judgment addresses only a hypothetical injury. See Allen v. Wright, 468 U.S. 737, 751 (1984). Texas courts,

30

like federal courts, have no jurisdiction to render such opinions.

Subject matter jurisdiction is an issue that may be raised for the first time on appeal; it may not be waived by the parties. Texas Employment Comm'n v. International Union of Elec., Radio and Mach. Workers, Local Union No. 782, 163 Tex. 135, 352 S.W.2d 252, 253 (1961)--- standing is a component of subject matter jurisdiction, and it cannot be waived and may be raised for the first time on appeal. Argument It appears that the entire brief is actually a request for an advisory opinion.

The strength of the brief, according to its author is the absolute superior rights Appellant has when compared to Appellee. Appellant’s issue is basically one that requires the issuance of an advisory opinion. The specific language is Appellee has no Cause of Action Against Appellant or Probable Recovery on Trial on the Merits. See Brief, at 13. From Pages 13 through 32, Appellant tells this court that Appellee has no chance to win and finishes with a request to overturn the injunction because it cases is so strong as compared to Appellee’s. Brief, at 13-32.

This certainly is a request for an advisory opinion. It is tantamount to Appellant arguing, “Listen Court, these guys have no chance to win at all in the end, so order the District Court to stop the injunction and let us go after the

31

property.”

Similarly, pages 8 through 13 set up a predicate which tells this court that because Appellant’s case has no merit and for that reason the injunction should not stand.

Very simply, this court has no jurisdiction to hear this case as briefed. It should be dismissed with prejudice with all costs charged to Appellant. alternative relief sought in the brief should be denied as being a request for an advisory opinion.

Recall that no one has been to the Justice Court. We have no order of possession. We have a reluctant Defendant who seeks to win through legal maneuvering rather than on the merits. Were Appellant’s claims of any merit, certainly they would have prevail on the merits in the various dispositive motions which Appellants have filed which the district court has consistently denied. Asking this court to rule that Appellant’s case is better than Appellee’s case is merely a ruse to get this court to issue an illegal advisory opinion. For that reason, the case should be dismissed.

32

ISSUE# 3 The fact that this case is now set for trial on August 10, 2015, with announcements and hearings on pending motions set for August 6, 2015, moots any relief this Court may provide. Therefore, the case should be dismissed.

This case is almost over. It has gone on for about a year and a half. The District Court has set the matter for trial next month. There is no relief this court can grant Appellee, in the short run, which would mean anything.

As a practical matter, for whatever reasons, the temporary injunction has been in place and has lasted for over a year. Appellant did not file a brief on the issue until December 30, 2014. The record does not explain what happened between then and May 5, 2015 when Appellee asked for an extension of time to file her brief.

Any relief granted this court may only complicate the litigation as there is every likelihood that Appellee will prevail at trial on various issues, and may even be able to obtain partial summary judgment, prior to trial, on several issues, such as whether Appellant had the power of sale, and whether appellant’s pleadings are an admission of tortious interference with contract, breach of contract, and violation of a breach of fiduciary duty. Appellee will certainly be working on such

33

potential partial relief before trial. Standard of Review An issue may become moot when a party seeks a ruling on some matter that, when rendered, would not have any practical legal effect on a then-existing controversy. See In re H&R Block Fin. Advisors, Inc., 262 S.W.3d 896, 900 (Tex. App.-Houston [14th Dist.] 2008, orig. proceeding); City of Farmers Branch v. Ramos, 235 S.W.3d 462, 469 (Tex. App.-Dallas 2007, no pet.). When an appeal is moot, we must set aside the judgment and dismiss the cause. City of Fort Worth v. Pastusek Indus., Inc., 48 S.W.3d 366, 371 (Tex. App.-Fort Worth 2001, no pet.). The mootness doctrine also implicates subject-matter jurisdiction. Hernandez- Perez v. State, No. 01-09- 00801-CR, 2010 WL 2133935, at *1 (Tex. App.—Houston [1st Dist.] May 27, 2010, no pet.) (mem. op.) (citing Trulock v. City of Duncanville, 277 S.W.3d 920, 923 (Tex. App.—Dallas 2009, no pet.)). A case is moot if a controversy ceases to exist or the parties lack a legally cognizable interest in the outcome. Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005). When a case becomes moot, the parties lose standing to maintain their claims. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001).

34

Argument At the moment, the issue of whether the temporary injunction was proper is mooted by the sheer passage of time. Some of this may be Appellee’s fault, but a good part of it also falls on Appellant’s shoulders, for various reasons. With trial set just around the corner, there is no justiciable issue left concerning the continuation of the temporary injunction The case has become mooted through passage of time. The mootness doctrine prevents courts from rendering advisory opinions, and under article II, section 1 of the Texas Constitution, courts have no jurisdiction to issue advisory opinions. See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam). "[A] controversy must exist between the parties at every stage of the legal proceedings, including the appeal." Bd. of Adjustment of City of San Antonio v. Wende, 92 S.W.3d 424, 427 (Tex. 2002) (quoting Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001)). An issue may become moot when a party seeks a ruling on some matter which, when rendered, would not have any practical legal effect on a then-existing controversy. In re H&R Block Fin. Advisors, Inc., 262 S.W.3d at 900.

As a practical matter, the case is moot now. The court should therefore dismiss the appeal.

35

PRAYER FOR RELIEF

WHEREFORE, for these reasons, Appellee respectfully requests the court to affirm the trial court’s issues of a temporary injunction and to deny appellant any and all relief requested, and in the alternative, dismiss the appeal as moot or as one requesting an illegal advisory opinion.

Respectfully submitted,

Philip T. Cowen

Law Office of Philip Cowen 500 E. Levee St.

Brownsville, Texas 78520

Tel. 956-541-1691

Fax 956-541-6872

By:/s/Philip T. Cowen

Philip T. Cowen

State Bar No. 24001933

Attorney for Appellant

36

CERTIFICATE OF SERVICE

This is to certify that on July 9, 2015 a true and correct copy of the above and foregoing brief was served Appellant’s Counsel via Idocs service of process to email st@taherzlaw.com.

/s/Philip T. Cowen

Philip T. Cowen

37

CERTIFICATE OF COMPLIANCE Pursuant to Tex. R. App. P. 9.4, I hereby certify that this brief contains 7,913 words. This document was created using Word Perfect X4, using 14-point typeface for all text, except for footnotes and long passages cited from cases, which are in 12- point typeface. In making this certificate of compliance, The word count was determined using Word Perfect X4 software which has the capability to calculate a word count.

/s/Philip T. Cowen

Philip T. Cowen

Appendix

Document Page No.

A. Deed of Trust CR542-565 1

B: Portion of Transcript of Hearing on Temporary Injunction 25 CR602-624

C Defendant Compass Bank's Amended Answer CRSupP86-89 48

D: Texas Business and Commerce Code SUBCHAPTER B. 52 NEGOTIATION, TRANSFER, AND INDORSEMENT Sec. 3.201 through 3.204.

E: Texas B