Appeal from the 151st District Court Harris County, Texas
Trial Court Cause No. 2017-06257
consists of Chief Justice Frost and Justices Boyce and Jewell
(Frost, C.J., concurring).
William J. Boyce Justice.
LLC appeals a temporary injunction order in favor of
appellees S. Bruce Hiran and Hung N. Yi. Jelinis argues that
the trial court erred by enjoining it from (1) evicting Hiran
and Yi because they pleaded no cause of action against
Jelinis; and (2) taking legal action in the justice court to
evict Hiran and Yi because they failed to show that "the
justice court was without jurisdiction to determine
possession." We reverse and render in part and affirm in
signed a Texas Home Equity Note on June 6, 2006, in the
amount of $800, 000 payable to Long Beach Mortgage Company.
On the same day, Hiran and his wife Yi signed a Texas Home
Equity Security Instrument confirming that the loan was
secured by residential real property located at 4132 Lehigh
Avenue in Houston, Texas. The note and deed of trust were
later transferred to Deutsche Bank National Trust Company.
Select Portfolio Servicing, Inc. acted as the loan servicer.
defaulted on their loan in October 2012. Select Portfolio
sent notices of default in December 2012 and May 2013.
Appellees ignored the notices Select Portfolio sent them.
Deutsche Bank, as trustee, in trust for registered holders of
Long Beach Mortgage Loan Trust 2006-10, filed an Application
for Home Equity Foreclosure Order pursuant to Texas Rule of
Civil Procedure 736 on January 22, 2014. Deutsche Bank
nonsuited the action and filed suit in the 270th District
Court on September 8, 2014, seeking a declaratory judgment
and an order authorizing foreclosure.
Bank filed a traditional summary judgment motion, contending
that (1) it is entitled to a declaration of its right to
foreclose on appellees' home and to an order authorizing
foreclosure because its summary judgment evidence established
that a debt exists, the debt is secured by a lien for a home
equity loan, a default under the note and deed of trust
exists, and the requisite notices to cure the default have
been provided to appellees; and (2) appellees should not be
allowed to deny executing the loan documents because Hiran
refused to testify at his deposition regarding "any
issues relating to whether he signed the applicable loan
documents and refused to provide any handwriting exemplars,
based on his assertion of the Fifth Amendment."
270th District Court granted Deutsche Bank's summary
judgment motion and signed a Final Judgment for Declaratory
Relief and Order Authorizing Foreclosure on December 3, 2015.
This judgment (1) disposed of all claims; (2) awarded
"an in rem Judgment" against appellees
authorizing a non-judicial foreclosure sale of appellees'
home "pursuant to the terms and conditions of the
subject Texas Home Equity Security Instrument and TEX. PROP
CODE §51.002;" and (3) ordered that the final
judgment "serves as an Order of Foreclosure of a Home
Bank sold the home at a foreclosure sale to Jelinis on
December 6, 2016. Jelinis filed a forcible detainer suit
regarding the home on January 12, 2017.
filed suit in the 151st District Court on January 30, 2017,
naming as parties Long Beach Mortgage Company, Deutsche Bank,
and Jelinis, and alleging that the "actions committed by
Long Beach Mortgage Company" constitute statutory fraud
and breach of contract, and that the "actions committed
by Deutsche Bank" constitute common law fraud and breach
of contract. Appellees alleged that, "although their
signatures appear to be valid, certain pages of the Note and
Deed of Trust must have been switched by representatives of
Long Beach Mortgage Company . . . because [appellees]'
Home Equity Loan was a fixed rate of 2% interest and,
instead, the Note and Deed of Trust attached as exhibits to
the Foreclosure Lawsuit are purported to be an adjustable
rate note at 7.975% interest."
further alleged that "the exhibits which are the legal
basis for Deutsche Bank's being awarded a judgment
authorizing them [sic] to sell [appellees]' Property at a
foreclosure sale are fraudulent; therefore, the foreclosure
sale of [appellees]' Property should be deemed void and
rescinded. Moreover, [appellees] allege[d] that the Home
Equity Loan itself was fraudulent as a result of Long Beach
Mortgage's representatives switching the loan documents
unbeknownst to [appellees]; therefore, [appellees]' home
equity loan should be deemed void ab initio."
requested that the trial court (1) issue a temporary
restraining order and then a temporary injunction enjoining
Jelinis from selling appellees' home "as well as
from taking any legal action to evict [appellees];" (2)
enter a judgment in favor of appellees "to rescind the
foreclosure sale of" appellees' home and "to
declare the home equity loan dated June 06, 2006 between
[appellees] as well as Long Beach Mortgage Company as void ab
initio;" and (3) enter a judgment against Long Beach
Mortgage Company and Deutsche Bank for actual and exemplary
damages and attorney's fees.
to appellees' petition was Hiran's affidavit in which
he stated in pertinent part:
2. The subject matter of this lawsuit is the real property
and the improvements thereon located at 4132 Lehigh Avenue,
Houston, TX 77005 (the "Property").
3. The Property was owned by my wife Hung N. Yi and I on June
06, 2006 on which date we entered into a Home Equity Loan.
During the process of entering into the Home Equity Loan, we
executed a Texas Home Equity Note ("Note") in the
amount of $800, 000 which was payable to Long Beach Mortgage
Company ("Long Beach"). In addition, we executed a
Texas Home Equity Security Instrument ("Deed of
4. . . . the Note and Deed of Trust were subsequently
transferred to Deutsche Bank National Trust . . . .
5. During the term of the Note, we began to receive notices
that we were past due on the payments of the Note. We did not
understand how that could be true since we were making our
payments on the Note in full and in a timely manner.
Accordingly, we expected that the notices must be a clerical
error which will be remedied in due course. As such, we
ignored the delinquency notices which we received from SPS.
6. Due to the nature and extent of Plaintiffs' perceived
delinquency, Deutsche Bank filed an Application for Home
Equity Foreclosure . . . [i]n the 270th Judicial District
Court of Harris County, Texas (the "Foreclosure
7. The Foreclosure Lawsuit culminated in a Final Judgment for
Declaratory Relief and Order Authorizing Foreclosure and the
Property was sold by Deutsche Bank to Jelinis, LLC
("Jelinis") at a foreclosure sale on December 06,
8. During the course of investigating this lawsuit, I
informed my legal counsel that we did not execute the Note
and Deed of Trust which were attached as exhibits to the
Foreclosure Lawsuit. Instead, I assert that, although our
signatures appear to be valid, certain pages of the Note and
Deed of Trust must have been switched by representatives of
Long Beach Mortgage Company ("Long Beach Mortgage")
because our Home Equity Loan was a fixed rate of 2% interest
and, instead, the Note and Deed of Trust attached as exhibits
to the Foreclosure Lawsuit are purported to be an adjustable
rate note at 7.975% interest.
trial court granted appellees' request for a temporary
restraining order and set a hearing on appellees'
temporary injunction request. Appellees nonsuited their
claims against Deutsche Bank without prejudice on February
filed an Objection to Plaintiff's Request for Temporary
Injunction on February 23, 2017, arguing that the trial court
should not enjoin the justice court from exercising its
jurisdiction to hear Jelinis's forcible detainer suit.
Jelinis argued that the justice court only loses jurisdiction
if "the right to possession is so interrelated with
title so as to make a determination of title necessary before
a determination of possession can be made." According to
Jelinis "there is a way to determine the issue of
possession without reaching the merits of title" because
the "foreclosed deed of trust created a
tenancy-at-sufferance upon foreclosure" and appellees as
tenants at sufferance "may be removed by a writ of
trial court held a hearing on February 24, 2017. Hiran
testified that the note and deed of trust introduced at the
hearing and in the 270th District Court proceeding were not
the documents he signed because the documents reference an
adjustable interest rate of 7.975 percent and his home equity
loan was for a fixed interest rate of 2.25 percent. Hiran,
who is an attorney, testified that it is "typical that a
contract that was entered into as a fraudulent transaction
would be deemed void in [his] legal opinion." Hiran also
stated that, in his legal opinion, he believed appellees are
in "imminent danger of irreparable harm as the result of
the forceful detainer lawsuit that's currently pending in
JP court." But Hiran acknowledged that the signature on
the documents "appears to be" his signature and
that he did not have a copy of the note and deed of trust he
and his wife signed at closing in 2006.
conclusion of the hearing, the trial court instructed the
parties to file briefs addressing the issue of res judicata
"in conjunction with the element of a temporary
injunction that is the likelihood of success on the merits,
" so that the court could "take a look at what
actually happened in the 270th, what the proceedings were and
whether they do have preclusive effect at all in this lawsuit
and, if so, to what extent." Jelinis filed a Brief in
Opposition to Temporary Injunction as requested by the trial
court. In its brief, Jelinis argued that appellees'
claims in "this lawsuit were compulsory counterclaims
arising out of the same subject matter as the lawsuit brought
by Deutsche Bank on September 8, 2014, " and, therefore,
are barred by res judicata.
trial court signed an order granting a temporary injunction
on March 10, 2017, enjoining Jelinis from selling
appellees' home and from taking any legal action to evict
appellees, including pursuing Jelinis's forcible detainer
suit in justice court. The court also stated in its order
that it "finds that the final relief granted in the
lawsuit in the 270th District Court was only in rem pursuant
to TRCP 735 and therefore likely does not have preclusive
effect on [appellees'] claims in this suit as a matter of
law." Jelinis filed a timely interlocutory
argues in two issues that the trial court erred by enjoining
it from (1)evicting appellees because they pleaded no cause
of action against Jelinis; and (2)taking legal action in the
justice court to evict appellees because they failed to show
that "the justice court was without jurisdiction to
Standard of Review
temporary injunction is an extraordinary remedy and does not
issue as a matter of right. Butnaru v. Ford Motor
Co., 84 S.W.3d 198, 204 (Tex. 2002) (op. on reh'g).
To obtain a temporary injunction, an applicant must plead and
prove three specific elements: (1) a cause of action against
the defendant; (2) a probable right on final trial to the
relief sought; and (3) a probable, imminent, and irreparable
injury in the interim. Id.
generally review a district court's grant of a temporary
injunction for an abuse of discretion. Pinnacle Premier
Props., Inc. v. Breton, 447 S.W.3d 558, 562 (Tex.
App.-Houston [14th Dist.] 2014, no pet.) (op. on reh'g)
(citing McGlothlin v. Kliebert, 672 S.W.2d 231, 232
(Tex. 1984)). When consideration of evidence is required, we
view it in the light most favorable to the trial court's
order, indulging every reasonable inference in favor of the
trial court's determination. LasikPlus of Tex., P.C.
v. Mattioli, 418 S.W.3d 210, 216 (Tex. App.-Houston
[14th Dist.] 2013, no pet.).
an abuse of discretion does not occur when the trial court
heard conflicting evidence and substantive, probative
evidence reasonably supports the trial court's decision,
we will apply a de novo standard of review when the issue
turns on a pure question of law." Pinnacle Premier
Props., Inc., 447 S.W.3d at 562. Subject matter
jurisdiction is a question of law. Espinoza v.
Lopez, 468 S.W.3d 692, 695 (Tex. App.-Houston [14th
Dist.] 2015, no pet); Maxwell v. U.S. Bank Nat'l
Ass'n, No. 14-12-00209-CV, 2013 WL 3580621, at *2
(Tex. App.-Houston [14th Dist.] July 11, 2013, pet.
dism'd w.o.j.) (mem. op.).
we analyze Jelinis's challenge of the trial court's
temporary injunction order, we address appellees' request
to strike Jelinis's appellate brief because the
"brief lacks a section pertaining to the Issue Presented
or Presentment of the Issues" as required in Texas Rule
of Appellate Procedure 38.1(f).
do not cite any case in which a court has struck an appellate
brief because a party failed to include an "Issues
Presented" section in its brief. Instead, appellees rely
on White v. Harvest Credit Management V, No.
14-04-00349-CV, 2004 WL 2297367 (Tex. App.-Houston [14th
Dist.] Oct. 14, 2004, no pet.) (per curiam) (mem. op.), to
support their request to strike. But White is
White, this court struck appellant's brief only
after (1) appellant failed to timely file a brief pursuant to
Texas Rule of Appellate Procedure 38.6; (2) appellant failed
to file a motion for extension of time; (3) this court
informed appellant that it would dismiss his appeal for want
of prosecution unless he filed a brief; (4) appellant filed a
letter with this court explaining that he had filed a brief
in the trial court and also "attached a copy of the
document he refer[ed] to as a brief that he filed" in
the trial court; (5) this court informed appellant that his
"letter d[id] not comply with the requirements for
briefs contained in the Texas Rules of Appellate
Procedure" 9.4 and 38.1 and granted appellant an
extension of time to file a brief that conforms to the rules;
(6) "appellant tendered a brief that did not comply with
the Texas Rules of Appellate Procedure;" (7) this court
returned the brief to appellant for correction; (8)
"appellant submitted another nonconforming brief, which
was also returned for correction;" and (9) appellant
then filed a brief that complied with the rules of form but
failed to comply with the briefing requirements set forth in
Rule 38.1, and "[m]ost significantly, appellant . . .
failed to make any legal arguments to support reversal of the
judgment, and the brief contain[ed] no citations to the
record or to legal authorities." Id. at *1.
Jelinis's brief contains every section listed in Rule
38.1, except for an "Issues Presented" section.
Jelinis presented in the body of its brief "a clear and
concise argument for the contentions made, with appropriate
citations to authorities and to the record."
See Tex. R. App. P. 38.1(i).
appellees' request to strike Jelinis's appellate
brief for failure to include an "Issues Presented"
section in its appellate brief. See Weeks Marine, Inc. v.
Garza, 371 S.W.3d 157, 162 (Tex. 2012); Perry v.
Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam);
Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex.
rejected appellees' request to strike Jelinis's
brief, we now turn to Jelinis's arguments challenging the
trial court's order enjoining Jelinis from taking legal
action in the justice court via a forcible detainer suit to