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HSBC BANK USA, NATIONAL TRUST COMPANY, AS TRUSTEE FOR THE HOLDERS OF MASTR REPERFORMING LOAN TRUST 2005-2 Defendant. } } } } } } } } } } } } } } } IN THE DISTRICT COURT
PLAINTIFFS ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: Comes Now Plaintiff WILLIAM E. WILSON and files this Plaintiffs Original Petition, and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction, and in support shows the Court as follows: I. PARTIES Plaintiff WILLIAM E. WILSON is an individual residing in Dallas County, Texas at 818 Rea Avenue, Lancaster, Texas 75146. Defendant HSBC BANK USA, NATIONAL TRUST COMPANY, AS TRUSTEE FOR THE HOLDERS OF MASTR REPERFORMING LOAN TRUST 2005-2 (HSBC) is a foreign corporate fiduciary doing business in Texas without a registered office and without a registered agent. Therefore, HSBC BANK USA, NATIONAL TRUST COMPANY, AS TRUSTEE FOR
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THE HOLDERS OF MASTR REPERFORMING LOAN TRUST 2005-2 may be served with process by transmitting process to the Texas Secretary of State in accordance with the requirements of Texas Civil Practice & Remedies Code Section 17.044(b), to the Citations Unit, Secretary of State, P.O. Box 12079, Austin, Texas 78711-2079, directed to HSBC BANK USA, NATIONAL TRUST COMPANY, Attention: Lewis F. Hazel, at HSBC BANK USA, NATIONAL TRUST COMPANYs corporate headquarters located at One Marine Midland Center, Buffalo, New York 14240. Service of HSBC BANK USA, NATIONAL TRUST COMPANY as described above can be effected by certified mail, return receipt requested. II. SELECTION OF DISCOVERY LEVEL Plaintiff pleads that discovery should be conducted in accordance with a discovery control plan under Texas Rule of Civil Procedure 190.3 (Level 2). III. JURISDICTION AND VENUE The subject matter in controversy is within the jurisdictional limits of this Court. This Court has jurisdiction over the parties because Plaintiff is a resident of Texas and Defendant is a foreign corporate fiduciary doing business in Texas. Venue in Dallas County is proper in this cause under Section 15.002 and / or Section 15.011 of the Texas Civil Practice and Remedies Code because all or a substantial part of the events or omissions giving rise to Plaintiffs claims occurred in this county, or this action involves real property as provided by said Section 15.011, and this county is where the real property is located.
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IV. FACTS This case arises from a dispute over the attempt by Defendant to take possession of Plaintiffs residential property located at 818 Rea Avenue, Lancaster, Texas 75146. The legal description is as follows: BEING LOT 11 IN BLOCK B OF H.B. MCCALLA SUBDIVISION, AN ADDITION TO THE CITY OF LANCASTER, TEXAS, ACCORDING TO THE MAP THEREOF RECORDED IN VOLUME 559, PAGE 1639, OF THE MAP RECORDS OF DALLAS COUNTY, TEXAS (the Property). On August 12, 2003, Plaintiff made a first-lien Note to AMERICAHOMEKEY, INC. in the original principal amount of $ 70,513.00 (the Note). To secure payment of the Note, Plaintiff executed a first-lien Deed of Trust for the benefit of Mortgage Electronic Registration Systems, Inc. (the Deed of Trust) which describes the Property. On or about May 3, 2011, Defendant, acting through a purported Substitute Trustee, purportedly conducted a non-judicial foreclosure sale of the Property, and a Substitute Trustees Deed purported to convey the Property to Defendant. Claiming to be the owner of the Property through the Substitute Trustees Deed, Defendant has filed a forcible detainer action in the County Court at Law No. 5 of Dallas County, Texas (the Forcible Detainer action). Prior to the Substitute Trustees Deed, Defendant claimed to be the owner and holder of the Note and Deed of Trust, or the person entitled to collect the Note and enforce the Deed of Trust. However, Plaintiff would show that the Note and Deed of Trust were not lawfully and timely indorsed, transferred, and assigned to Defendant as owner and holder of the Note and Deed of Trust, and that Defendant was not authorized to collect the Note and enforce the Deed of Trust. Plaintiff, therefore, would show that Defendant did not have the standing or legal right to
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declare a default in payment of the Note, accelerate the maturity of the Note, or foreclose on the Property. As a result, Defendant has not lawfully acquired the Property. Furthermore, Plaintiff would show that, after the time of the inception of the loan to Plaintiff, the Note and the security interest embodied in the Deed of Trust were split and separated, with one party holding the Note and another party holding the Deed of Trust. As a result, the Note became unsecured, the party holding the Deed of Trust could not and did not experience a default, and the security interest in the Property was forfeited. V. ACTION FOR TRESPASS TO TRY TITLE AND TO REMOVE CLOUD AND QUIET TITLE Plaintiff brings this suit under section 22.001 of the Texas Property Code, and under the common law and in equity, for trespass to try title and to remove cloud on title. Plaintiff would show that Plaintiff is, has always been, and remains the lawful owner of the Property, and that the purported Substitute Trustees Deed to the Property asserted an interest in and to the Property which Defendant or its Substitute Trustee could not lawfully convey, and Defendant could not and did not lawfully acquire. Plaintiff is and remains the legal and equitable owner of the Property, and the purported non-judicial foreclosure sale conducted by a Substitute Trustee of Defendant interferes with Plaintiffs ownership interest in the Property. VI. REQUEST TO SET ASIDE SUBSTITUTE TRUSTEES NON-JUDICIAL FORECLOSURE SALE, AND TO CANCEL SUBSTITUTE TRUSTEES DEED On or about May 3, 2011, Defendant, purporting to be the legitimate successor in interest to AMERICAHOMEKEY, INC., the original lender, or the person entitled to collect the Note and enforce the Deed of Trust, purported to conduct through a Substitute Trustee a non-judicial foreclosure sale of the Property. Defendant claims to have purchased the Property at the sale, and
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Defendant claims to be the owner of the Property in defiance of Plaintiffs rights in the Property. However, Plaintiff would show that the Substitute Trustees Deed relied upon by Defendant is void because Defendant did not have the standing or legal right to declare a default in payment of the Note, accelerate the maturity of the Note, or foreclose on the security interest in the Property. Defendants conduct constitutes a trespass and places an unlawful and illegitimate cloud on Plaintiffs title. Unless this Court intervenes to set aside the Substitute Trustees non-judicial foreclosure sale of the Property and cancel the Substitute Trustees Deed, Plaintiff will suffer a permanent loss of the use and benefit of the Property. Plaintiff requests this Court to enter an order setting aside the Substitute Trustees non-judicial foreclosure sale of the Property and canceling the Substitute Trustees Deed issued after the sale. VII. REQUEST FOR DECLARATORY JUDGMENT Plaintiff petitions this Court pursuant to the Uniform Declaratory Judgments Act (the UDJA), Chapter 37 of the Texas Civil Practices and Remedies Code, for construction of the Note and Deed of Trust, and declarations that:
a) the Note and Deed of Trust were not lawfully and timely indorsed, transferred,
payment of the Note, accelerate the maturity of the Note, or foreclose on the security interest in the Property by, through, or under the obligations created by the Note and Deed of Trust;
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invalid, and the Substitute Trustees Deed issued after the sale is void;
d) after the time of the inception of the loan to Plaintiff, the Note and the security
interest embodied in the Deed of Trust were split and separated, with one party holding the Note and another party holding the Deed of Trust. As a result, the Note became unsecured, the party holding the Deed of Trust could not and did not experience a default, and the security interest in the Property was forfeited; and
e) Defendant is not the lawful owner of the Property.
VIII. ACTION FOR VIOLATION OF THE TEXAS DEBT COLLECTION PRACTICES ACT Defendants acts, omissions, and conduct described above constitute violations of the Texas Debt Collection Practices Act, including Tex. Fin. Code Sec. 392.304, because Defendant misrepresented the character, extent, or amount of a debt against a consumer. IX. REQUEST FOR ISSUANCE OF A TEMPORARY RESTRAINING ORDER, TEMPORARY INJUNCTION, AND PERMANENT INJUNCTION This request only applies if the County Court at Law of Dallas County should proceed with the Forcible Detainer action. The County Court at Law does not have jurisdiction to award possession of the Property because of the pendency of this lawsuit. Plaintiff recognizes that in a case of forcible detainer under Texas Property Code Sections 24.001 24.008, the only issue shall be the right to actual possession, and the merits of the title shall not be adjudicated. Tex. R. Civ. P. 746. However, notwithstanding this general rule, if the question of title is intertwined with the issue of possession, then possession may not be adjudicated without first determining
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title. In such a case involving a genuine issue of title, neither the Justice Court nor the County Court at Law on appeal has jurisdiction. Mitchell v. Armstrong, 911 S.W.2d 169 (Tex. App. -Houston [1st Dist.] 1995, writ denied). The issues of title and possession are intertwined in this case because of the allegations of this case. If Plaintiff prevails in this case, the title to the Property is established in Plaintiff and he has and will continue to have the right to possession of the property. See Mills v. Haggard, 58 S.W.3d 164, 167 (Tex. App. Waco 2001, no writ); Durkay v. Madco Oil Co., 862 S.W.2d 14, 17-18 (Tex. App. Corpus Christi 1993, writ denied). Plaintiff requests that this Court enter a temporary restraining order that Defendant
and Defendants officers, employees, agents, representatives, and attorneys are temporarily restrained and enjoined from obtaining the issuance and service, or causing the issuance and service, of a Writ of Possession in the Forcible Detainer action concerning the Property, and order a hearing for a temporary injunction, granting the
relief requested herein. Without this relief, Plaintiff will suffer an imminent and irreparable injury by reason of being dispossessed from his Property for which there is no adequate remedy at law. X. DAMAGES AND ATTORNEYS FEES Plaintiff requests the recovery of actual damages caused by Defendants actions, and requests recovery of his reasonable and necessary attorneys fees as allowed by law. WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant be cited to appear and answer herein, and that this Court grant the relief, including declaratory relief and injunctive relief, requested herein and issue such writs and processes to preserve the Plaintiffs title and possession of the Property. Plaintiff further requests that this Court award title and
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possession of the Property to Plaintiff as requested herein, together with his damages and attorneys fees, and further prays that this Court grant such other and further relief in law and in equity to which Plaintiff may show himself to be justly entitled. Respectfully submitted,
/s/Stephen W. Tiemann STEPHEN W. TIEMANN ATTORNEY AND COUNSELOR AT LAW State Bar ID No. 20021750 2000 E. Lamar Blvd. Suite 600 Arlington, Texas 76006 Tel: 817-275-7245 Fax: 817-275-1056 Email: swtlegal@gmail.com Attorney for Plaintiff
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