Plaintiff's Verified Application for Temporary Restraining Order Temporary Injunction and Plaintiffs Original Petition August 29, 2024 (2024)

 
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 8/29/2024 12:44 PM Marilyn Burgess - District Clerk Harris County Envelope No. 91471857 2024-57824 / Court: 11 By: Chandra Lawson Filed: 8/29/2024 12:44 PM CAUSE NOMR. Z INVESTMENTS, INC, IN THE DISTRICT COURT,Vv. OF HARRIS COUNTY, TEXASCADENCE BANKf.k.a BANCORPSOUTH BANK JUDICIAL DISTRICTPLAINTIFF’S VERIFIED APPLICATION FOR TEMPORARY RESTRAINING ORDER TEMPORARY INJUNCTION AND PLAINTIFF’S ORIGINAL PETITIONTO THE HONORABLE JUDGE OF SAID COURT: COMES NOW PLAINTIFF Mr Z. Investments, Inc., (hereinafter referred to as “Plaintiff”or “MZI”) and files this, its Plaintiff's Application for a Temporary Restraining Order, TemporaryInjunction, and Original Petition against Defendant Cadence Bank (herinafter referred to as“Defendant” or “Cadence”) and for cause of action would respectfully show the Court as follows: 1 DISCOVERY-CONTROL PLAN 1 Plaintiff intends to conduct discovery under Level 2 of Rule 190.3 of the TexasRules of Civil Procedure and affirmatively pleads that this suit is not governed by the expedited-actions process in Texas Rule of Civil Procedure 169 because Plaintiff seeks monetary reliefover $250,000 on their claims against Defendant. IL. CLAIM FOR RELIEF 2 Plaintiff seeks monetary relief over $1,000,000.00 and non-monetary relief. iil. PARTIES 3.1 Plaintiff, Mr. Z Investments, Inc. is a Texas entity, and can be contacted throughthe undersigned counsel 3.2 Defendant, Cadence Bank,f.k.a BancorpSouth Bank, a financial institution, whosehome office address is One Mississippi Plaza, Tupelo, MS 38804, may be served with processthrough its registered agent, CT Corporation System, 1999 Bryan, Street, Ste 900, Dallas, Texas75201-3136.Iv. JURISDICTION AND VENUE 41 Jurisdiction is proper in this court because the amount in controversy exceeds thecourt’s minimum jurisdictional limits. 42 Venue is proper and mandatory in Harris County, Texas because all or asubstantial part of the events giving rise to the claims herein occurred in Harris County, Texas.TEX. CHV. PRAC. & REM. CODE § 15.002(ai). Moreover, the facts show that theconvenience of the parties and the witnesses and the interest of justice would be best servedin Harris County, Texas. V. BACKGROUND FACTS Sl The subject matter of this lawsuit is the real property and the improvements thereonlocated at 24307 Aldine Westfield Road, Spring, Texas 77373. (the "Property"). Defendant hasposted it for foreclosure sale on September 3, 2024, in Harris County, Texas through a Notice ofForeclosure Sale dated August 7, 2024 ( See attached Exhibit 2). 5.2 MZI purchased the propery on or about December 14, 2018. During the process ofpurchasing the Property, Plaintiff executed a Promissory Note ("Note") in the amount of OneMillion Seven Hundred TwentyFive Thousand and 00/100 Dollars ($1,725,000.00) payable to theorder of BancorpSouth Bank, as well as a Comercial Deed of Trust. Upon information and belief,the Note and Deed of Trust were subsequently transferred to Defendant Cadence 5.3 In March of 2023, Cadence Bank advised MZI that it had obtained insurance onbehalf of MZI, and that the monthly note payments to Cadence Bank would be raised an additionalapproximate $2,700.00 per month to cover the insurance. MZI paid the note and additionalinsurance charge through December of 20235.4 In December of 2023, a hail storm damaged the roof of the building on the propertymade the basis of this lawsuit. As the insurance had been procured through Cadence Bank(hereinafter “Cadence”), MZI contacted Cadence to make a insurance claim for the hail damage.An adjuster came out to inspect the roof. Afterwards, Cadence refused to provde MZI theinsurance policy, the insurance policy number, the insurance provider, or any relevant informationfor MZI to follow up with the adjuster about the claim. Additionally, Cadence refused to confirmif the claim was accepted or rejected, by the alleged insurance carrier. To date, the claim is stillopen as far as MZI can confirm and they are still in the dark as whether or not the hail damageclaim will be covered by insurance company MZI paid for through Cadence Bank. 5.5 As a result of the delays of Cadence Bank in regards to cooperating with the allegedinsurance carrier or providing the carrier contact information to MZI, MZI was forced to payapproximately $50,000.00 out of pocket to retain a roofer to begin work on the project. However,as the insurance policy which MZI paid for was never provided to MZI by Cadence bank, the roofrepairs still need to be completed. It appears as though the insurance policy that was allegedly putin place by Cadence for which MZI paid premiums does not exist or in the alternative Cadence iseither negligently or intentionally withholding the coverage information. 5.6 In March of 2024, MZI made a payment to Cadence of $33,961.76, which coveredthe March payment and April payments to Cadence bank as part of the loan between the partiesSee proof of payment attached as Exhibit ‘1.’. The payment does not appear to have been appliedto the balance owed by MZI, as Cadence is claiming the March and April payments are ‘past due.’Furthermore, Cadence is still making a demand for forced insurance for 2024. MZI sought in vainto get outside insurance for 2024, but when insurance companies learned of the current state of thedamaged roof as well as the open and unresolved claim through Cadence's alleged carrier theyrefused to provide insurance.” 5.7 To date, Cadence has refused to provide a proper accounting of this loan to MZI,dispute numerous requests. MZI denies the amount claimed as owed and denies that all just andlawful offsets have been allowed. Cadence has not provided MZI with the alleged formula for thecharges it is contending MZI owes and Cadence has not provided MZI with a breakdown of thetransactions on the account. Additionally, MZI did not receive the demand letter prior to theposting of this property for sale. 5.8 As a result of MZI's actions MZI has been unfairly damaged by Cadence, includingbut not limited to the following actions: charging for insurance that it failed to or could notprovide; failing to provide any relevant insurance information for MZI to rely upon in making aclaim under the insurance; failing to honor the insurance and repair the roof of the propertyseverely lowering the value of the improvements upon the property; failing to provide anyaccounting of the account made the basis of this lawsuit; sending improper notice of default andfailing to serve the notice, and; failing to stop the foreclosure and forcing MZI to file this lawsuit.Accordingly, this action has become necessary. Vi CAUSES OF ACTION ise 6.1 To the extent not inconsistent herewith, Plaintiff incorporates by reference theallegations made in paragraphs 1 though 5.8 as is set forth fully herein. 6.2 The actions committed by Defendant constitute promissory estoppel because 63 Cadence promised in writing to provide insurance on the property in exchangefor premiums which were charged and paid by MZI o4 Cadence reasonably and substantuailly relied on the promise to its detriment 65 v t 8 reliance was foreseeable by Cadence: ad 66 The injustice can be avoided by enforcing Cadence's promise. + a 2 alicg: ¥ 67 To the extent not inconsistent herewith, Plaintiff incorporates by reference theallegations made in paragraphs 1 though 6.6 as is set forth fully herein. 6.8 The actions committed by Defendant constitute negligent misrepresentationand gross negligence because: 69 Cadence made representations MZ1 in the course of Cadence’s business, 610 Cadence supplied false informtaion for the guidance of others; GE Cadence did not exercise reasonable care or competence in obtaining orcommullc ing the information: 612 21 justifiably relied on the representations, and 6.13 Cadence's negligent misrepresentation proximately caused MZ1's injury.\Fraud 614 To the extent not inconsistent herewith, Plaintiff incorporates by reference theallegations made in paragraphs 1 though 6.13 as is set forth fully herein. 6.15 The actions committed by Defendant constitutes common law fraud becuase itmade false and materail representations to Plaintiff by, among other things, mistating andmischaracterizing the true nature of the real transaction when Cadence deceived MZI intobelieving that Cadence had purchased Force-placed/hazard insurance to cover the property.Cadence has additionally based on information and belief failed to give MZI credit for loanpayments. Cadence knew that the representations as to insurance coverage and the account balanceowed were false or made these representations reclessly, as a postive assertion and withoutknowledge of its truth. In addition, Cadence made these representations with the intent that MZIact on them and and MZI relied on these representation which caused Plaintiff's injury actualdamages which inlcude but are not limited to, loss of alternative loss mitigation options, violatingPlaintiffs due process rights, litigation cost, losses due to the roof not being repaired, andnumerous erroneous expenses, overcharges, and penaltiesBreach of Contract 6.16 To the extent not inconsistent herewith, Plaintiff incorporates by reference theallegations made in paragraphs 1 though 6.15 as is set forth fully herein. 6.17 Based on information and belief, Cadence and MZE bad a loan agreementreflected in a Note and Deed of Trust. Under the terms of those loan agreements, Cadencepromised to give MZI credit for payments made under the loan. Additionally, Cadence agreedto put in place forced place insurance to insure the collateral. M21 paid the additional chargesfor that coverage to Cadence. Cadence failed to give MZI credit for payments made underthe loan agreements and to either obtain ins rance coverage on the premises or alternativelyto not cooperate with the carrier to prevent coverage of the hail damaged stractuce. Cadencebreached its agreements causing MZI damages for which monetary relief would beappropriate, VIL. DAMAGES 71 Plaintiff is entitled to recoiver its actual damages from Cadence for which Plaintiffpleads in an amount within the jurisdictional limits of this Court. Vil.APPLICATION FOR INJUNCTIVE RELIEF 8.1 To the extent not inconsistent herewith, Plaintiff incorporates by reference theallegations made in patragraphs 1 though 7 as is set forth fully herein 8.2 Unless Cadence is enjoined, MZI will suffer probable harm which is imminent andirreparable since Cadenc is about to sell MZI' Propery at 24307 Aldine Westfield Road, Sprin,Texas 77373 thereby depriving MZI of ownership of the Property. MZI has no adequate remedyat law because the subject matter is real propery and any legal remedy of which MZI may availitself will not give it as complete, equal,adequate, and final remedy as the injunctive relief soughtin the Application. 8.3 Therefore, MZI request that this Court issue a Temporary Restraining Order and,thereafter, a Temporary Injunction, and Permanent Injunction as permitted by TEX. CTV. PRAC& REM COBE § 65.011(1} and (3}, to restrain Cadeence from selling the real property which isthe subject matter of this lawsuit commonly known as"All of Unrestricted Reserve "A", Arell, a subdivision in Harris County, Teas according to the mapor plat therof recorded in Volume 327, Page 15 of the map Records of Harris County, Texas"more fully described as 24307 Aldine Westfield Road, Spring, Texas 77373 8.4 Plaintiff further request that upon trial on the merits, Defendant be permanentlyenjoined from the same acts listed in the paragraph above: 8.5 Plaintiff is likely to prevail on the merits of the lawsuit as described above. 8.6 As set forth in this petition, MZT has no adequate remedy at law and is entitledto equitable and injunctive relief. As also set forth above, MZI has a substantial likelihood ofsuccess on the merits of itscase. 8.7 Further, in light of Defendant's actions and threatened actions to daie, the statusque cannot be maintained without the entry of temporary orders protecting MZI. Immediateand irreparable harm exists because the sale of real property is unique. An adequate remedyat law does not exist. 8.8 M21 is willing to post a bond should such be orde d by the Court. IX. CONDITIONS PRECEDENT 9 All conditions precedent to Plaintiffs claim for relief have been performed orhave occurred. XxX. ATTORNEYS’ FEES, INTEREST AND COSTS 10.1 Pursuant to Chapter 38 of the Texas Civil Practices and Remedies Code, request ismade foa all coists and reasonable and necessary atorneys fees incurred by Plaintiffherein,including all fees necessary in the event of an appeal of this cause to teh Court fo Appealsand the Texas supreme Court, as the Court deems equitable and just for Defendants breach ofcontract. 10.2 MZI likewise requests that it be awarded its costs and expenses pursuant to Rules131 and 141 of the Texas Rules of Civil Procedure.10.3 MZI also seeks pre-judgment interest and post-judgment interest at the maximumrates allowed by law. XI. PRAYER WHEREFORE PREMISES CONSIDERED, Plaintiff MZI respectfully states that itis entitled to the following relief and prays that this Court issue a temporary restrainingorder, temporary injunction and ultimately a permanent injunction restraining andenjoining Defendant Cadence, including his agents, partners, employees, attorneys,representatives, successors, and assigns, and all other persons in active concert orparticipation with any of them, as described above. MZI further requests that the Courtenter judgment in its favor: fa} awarding compensatory, consequential, and incidental damages,; {b} awarding punitive and exemplary damages; fo} ordering an accounting; () awarding prejudgment and postjudgment interest; {eo} awarding all costs and expenses, including reasonable attorneys' fees, incurred by MZI in prosecuting this action and successfully defending it on appeal; and iD awarding such other and further relief, both at law and in equity, to which MZ1 is justly entitled. 11. MZI further prays that Defendant Cadence be cited to appear and answer andthat, to the fullest extent allowed by law, it have judgment against Defendant, for all reliefboth general and special, legal and equitable to which Plaintiff MZI may show itself justlyentitled. Respectfully submitted, BY: /s/ Christopher ThornhillCHRISTOPHER M. THORNHILLState Bar Number 24059030THE THORNHILL LAW FIRMP. O. Box 30359Houston, Texas 77249(281) 968-8105 TelephoneE-mail: cthornhill!@thornhilllawfirm.netLead Attorney for PlaintiffAutomated Certificate of eServiceThis automated certificate of service was created by the efiling system.The filer served this document via email generated by the efiling systemon the date and to the persons listed below. The rules governingcertificates of service have not changed. Filers must still provide acertificate of service that complies with all applicable rules.Christopher Thornhill on behalf of Christopher ThornhillBar No. 24059030cthornhill@thornhilllawfirm.netEnvelope ID: 91471857Filing Code Description: PetitionFiling Description: PetitionStatus as of 8/29/2024 1:53 PM CSTCase ContactsName BarNumber | Email TimestampSubmitted StatusWade Stewart wade@wfslawfirm.com 8/29/2024 12:44:18 PM SENTChristopher Thornhill cthornhill@thornhilllawfirm.net 8/29/2024 12:44:18 PM SENTCy Cross ccross@thomhilllawfirm.net 8/29/2024 12:44:18 PM SENTDaniel Chavez dchavez@thornhilllawfirm.net 8/29/2024 12:44:18 PM SENT 

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