Waste disposal company seeks order to stop foreclosure

Kelly Holleran Feb. 10, 2011, 3:52am


An environmental waste disposal company in Jefferson County has filed suit against the bank that it says is wrongly attempting to foreclose against its property.

SETX Clearwater Environmental claims defendant Bank and Trust of Bryan College Station is seeking to foreclose on its property. However, SETX Clearwater claims the foreclosure attempt is invalid.

Currently, SETX is in negotiations for sale of the property, and wants the court to stop the bank's foreclosure.

"The defendant is aware of the proposed sale, and upon information and belief, is deliberately trying to tortiously interfere with the sale in order to force a rock bottom price, therefore attempting to purchase Plaintiff's property in whole on its own," the suit filed Jan. 27 in Jefferson County District Court states.

In addition, the bank is not allowed to foreclose on the property because it has a lawsuit pending against the plaintiff's guarantors in Brazos County District Court, according to the complaint. Judges in Brazos County District Court have not issued a final judgment, the complaint says.

"The defendant is now attempting to wrongfully foreclose, because under Texas law, Defendant has elected its remedy, by first seeking a judicial monetary judgment against the individual guarantors," the suit states. "As the matter against the personal gurantor(s) is still pending, there has been no final judgment, the counter-claims are live, and therefore any attempt to foreclose at this time is premature, invalid, and not otherwise ripe."

Not only is the bank attempting to foreclose on the plaintiffs, but it is also trying to say the plaintiffs owe more money than they do, according to the complaint.

"Dr. Ally (the guarantor), in good faith, contends that the principal amount owed is significantly less than $360,000 principal balance claimed by the Bank in its guaranty suit, but now the bank is claiming a lien in the amount of $463,797.24!" the suit states.

"The Bank has given no explanation as to how these phantom numbers were derived, as the alleged principal has jumped from approximately $360,000 to $409,000 since Defendant's grant of summary judgment; thereby rendering any attempt to foreclose improper and any notice on same invalid and void as a matter of law."

In its complaint, SETX Clearwater is asking the court to issue a temporary restraining order and, eventually, permanent injunction, to prevent the defendant's actions. In addition, it seeks actual and consequential damages, attorneys' fees, costs and other relief the court deems just.

John S. Morgan of Harris, Duesler and Hatfield will be representing it.

Judge Milton Shuffield, 136th District Court, has been assigned to the case.

Case No. D189-264

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