Ramirez et al v. Apex Bank

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Case 7:26-cv-00316 Document10- Filed 07/16/26 in TXSD Page1of/7
United States District Court

Southem District of Texas
ENTERED
UNITED STATES DISTRICT COURT July 16, 2026
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
MCALLEN DIVISION
RENE RAMIREZ AND §
LAURA RAMIREZ §
§
Plaintiffs, §
VS. § CIVIL ACTION NO. 7:26-CV-316
§
APEX BANK, §
§
Defendant. §

REPORT AND RECOMMENDATION

Defendant Apex Bank (“Defendant”) has filed an “Emergency Motion to Dissolve
Temporary Restraining Order.” (Docket No. 3.) This emergency motion is in response to
Plaintiffs Rene Ramirez and Laura Ramirez filing a third action in Hidalgo County court despite
the first two actions being dismissed. After reviewing the emergency motion, the undersigned
recommends that Defendant’s Emergency Motion to Dissolve Temporary Restraining Order be
granted and that sanctions be imposed.

I. BACKGROUND

On July 6, 2026, Plaintiffs filed their Original Petition and Application for Injunctive Relief
in Hidalgo County. In their petition, they seek declaratory relief for breach of contract in relation
to the attempted foreclosure of a property located at 1003 Inspiration Drive, Pharr, Texas 78577.
They also sought a temporary injunction. The suit was filed the day before the foreclosure sale of
July 7, 2026. As they did in their second lawsuit, this petition makes the same claims, on the same
property, for the same reasons. In the first lawsuit, Ramirez, et al. v. Apex Bank, 7:24-cv-032, U.S.

District Judge Ricardo H. Hinojosa dismissed the suit with prejudice. In the second lawsuit,

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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Ramirez, et al. v. Apex Bank, 7:25-cv-302, U.S. District Judge Drew B. Tipton also dismissed the
lawsuit after granting Defendant’s motion to dismiss pursuant to res judicata.

On July 10, 2026, Defendant’s removed the current lawsuit to federal court. (Docket No.
1.) On the same day they filed this motion. (Docket No. 3.) On July 14, 2026, a hearing was held
regarding the issues raised in the pending motion.

Il. ANALYSIS

A. Motion to Dissolve Temporary Restraining Order

In moving for this emergency action, Defendant invokes Rule 65(b)(4) of the Federal Rules
of Civil Procedure. (Docket No. 3, at 3.) Because the lawsuit was filed in Hidalgo County Court,
the Texas Rules of Civil Procedure and the Local Rules of Hidalgo County apply. As Defendant
has stated in their motion, Hidalgo County Civil Court Local Rule 2.6 requires that the attorney
making the request for an ex-parte temporary restraining order shall state whether or not the
opposing party is represented by counsel and the name of such counsel. (/d. at 4 (citing Hidalgo
County Civil Court Local Rule 2.6 (Temporary Orders)).) Because we are now in federal court,
Defendant invokes Rule 65(b)(4) of the Federal Rules of Civil Procedure which addresses
dissolution of ex-parte restraining order stating that “on 2 days’ notice... the adverse party may
appear and move to dissolve or modify the order.”

Under 28 U.S.C. § 1450, federal district courts are empowered to dissolve or modify all
injunctions, orders, and other proceedings had in an action prior to its removal. See 28 U.S.C.
1450. A Rule 65(b)(4) motion to dissolve is treated like a motion for reconsideration and should
be granted where the TRO was improperly issued. See Dixie Brewing Co., Inc. v. Department of

Veteran Affairs, No. 13-6605, 2013 WL 6715921, at *3 (E.D. La. Dec. 18, 2013).

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The temporary restraining order which is the subject of this pending motion was moved for
in the Original Petition filed on July 6, 2026. (Docket No. 3-5, at 4.) The application for the
temporary restraining order states that there was not enough time to serve notice on Defendant and
to hold a hearing on the application because the foreclosure sale was the following day. (/d.) This
was the same procedure in the prior lawsuit, where Plaintiffs, despite having ample notice of the
foreclosure sale, waited until the day prior to the foreclosure sale to file their petition and did not
notice Defendant. (Docket No. 3-3, at 4.) In the application, not only do they not notice Defendant,
but they do not name Defendant’s attorney. These plaintiffs and their attorney are very well aware
of Defendant’s attorney from the two prior lawsuits, the most recent of which was closed less than
4 months prior to their new filing.

At the hearing on the motion to dissolve the temporary restraining order, Plaintiffs did not
make any arguments opposing the motion. In filing the Original Petition, had Plaintiffs followed
the local rules which required Defendant’s attorney to be named, Defendant would have had an
opportunity to appear at the county court and contest the imposition of the temporary injunction.
Defendant likely would have prevailed due to the prior orders of dismissal. Therefore, the
undersigned recommends that Defendant’s Emergency Motion to Dissolve Temporary Restraining
Order be GRANTED and that the Temporary Restraining Order be dissolved.

B. Sanctions
Federal Rule of Civil Procedure 11 “was originally enacted in 1938 to curb tendencies

toward untruthfulness in pressing a client's suit.”! Childs v. State Farm Mut. Auto. Ins. Co., 29

' As relevant here, Rule 11 of the Federal Rules of Civil Procedure provides in part:

(b) Representations to the Court. By presenting to the court a pleading,
written motion, or other paper — whether by signing, filing, submitting, or later
advocating it — an attorney or unrepresented party certifies that to the best of the

a

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F.3d 1018, 1023 (Sth Cir. 1994) (citing Georgene M. Vairo, Rule 11: A Critical Analysis, 118
F.R.D. 189, 190 (1988)). The Fifth Circuit in Childs went on to explain:

This Court has interpreted this rule to impose three affirmative duties with
which an attorney or litigant certifies he has complied by signing a pleading,
motion, or other document. These duties are:

1) that the attorney has conducted a reasonable inquiry into the facts which
support the document;

2) that the attorney has conducted a reasonable inquiry into the law such
that the document embodies existing legal principles or a good faith
argument for the extension, modification, or reversal of existing law; and

3) that the modification is not interposed for purposes of delay, harassment,
or increasing the costs of litigation.

Thomas, 836 F.2d at 874. Compliance with these affirmative duties is measured as
of the time that the document is signed. Moreover, consistent with the purpose of
the 1983 amendments, the standard under which an attorney is measured is an
objective, not subjective, standard of reasonableness under the circumstances. Id.
at 873; United States v. Alexander, 981 F.2d 250, 252 (Sth Cir. 1993). An attorney's
good faith is no longer enough to protect him from Rule 11 sanctions. Robinson v.
National Cash Register, Co., 808 F.2d 1119, 1127 (Sth Cir. 1987).

Childs, 29 F.3d at 1023-24. As it pertains to the first factor, whether a party has made a reasonable

inquiry into the facts, the Fifth Circuit has provided some guidance. The relevant factors to

person's knowledge, information, and belief, formed after an inquiry reasonable
under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by
existing law or by a nonfrivolous argument for extending, modifying, or reversing
existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically, so
identified, will likely have evidentiary support after a reasonable opportunity for
further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of information.

FED. R. Crv. P. 11(b).

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consider include the following: “1) the time available to the signer for investigation; 2) the extent
of the attorney's reliance upon his client for the factual support for the document; 3) the feasibility
of pre-filing investigation; 4) whether the signing attorney accepted the case from another member
of the bar or forwarding attorney; 5) the complexity of the factual and legal issues; and 6) the
extent to which development of the factual circumstances underlying the claim requires
discovery.” Childs, 29 F.3d at 1026 (citing Thomas v. Capital Sec. Servs., 836 F.2d 866, 875 (Sth
Cir. 1988)); see also St. Amant v. Bernard, 859 F.2d 379, 383 (Sth Cir. 1988).

Here, the undersigned finds that the factors weigh in favor of sanctioning Plaintiff's
attorney for violating Rule 11. Put simply, Plaintiff's litigation strategy is one of intentional, and
willful, delay. This is evidenced by the duplicative lawsuits which Plaintiff has filed regurgitating
the same claims, regarding the same property in question.

“Under Thomas, once a district court finds a Rule 11 violation, it must impose some
sanction.”? Childs, 29 F.3d at 1027 (citing Thomas, 836 F.2d at 876); see also Willy v. Coastal
Corp., 855 F.2d 1160, 1172 (Sth Cir. 1988). However, the court retains broad discretion in
determining what sanction may be appropriate. Thomas, 836 F.2d at 876-77; Estiverne v. Sak's
Fifth Avenue, 9 F.3d 1171, 1174 (Sth Cir. 1993). In any event, the ultimate sanction should be the
“least severe that adequately furthers the purpose of Rule 11.” Childs, 29 F.3d at 1027 (citing Akin
v. O-L Investments, Inc., 959 F.2d 521 (Sth Cir. 1992)).

Furthermore, “[t]he rule specifically provides that reasonable and appropriate expenses,

including attorney's fees, may be awarded as a sanction to the extent the expenses were reasonably

? As relevant here, Rule 11 of the Federal Rules of Civil Procedure provides the following
guidance on sanctioning a party: “If, after notice and a reasonable opportunity to respond, the court
determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any
attorney, law firm, or party that violated the rule or is responsible for the violation.” FED. R. Civ.
P. 11(c).

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caused by a violation of the rule.” Childs, 29 F.3d at 1027 (citing FED. R. Civ. P. 11 (West 1992));
see also Merriman, Merriman v. Security Ins. Co. of Hartford, 100 F.3d 1187, 1194-95 (Sth Cir.
1996). “Actual expenses and attorney's fees are not necessarily reasonable, though, because ‘[a]
party seeking Rule 11 costs and attorney's fees has a duty to mitigate those expenses, by correlating
his response, in hours and funds expended, to the merit of the claims.’” Childs, 29 F.3d at 1027
(quoting Thomas, 836 F.2d at 879). “Moreover, the appropriate sanction in a given case may be
an award to the adversary of some amount less than all of its reasonable expenses incurred as a
result of the violation.” Childs, 29 F.3d at 1027 (citing Smith International, Inc. v. Texas
Commerce Bank, 844 F.2d 1193, 1197 (Sth Cir. 1988)).

At the hearing held on July 14, 2026, the matter of sanctions was discussed. At the request
of the undersigned, Defense Counsel provided the amount of attorney’s fees incurred as a result of
the continuous filings after the previous dismissal orders. Defense counsel stated that as of June
4, 2025, the date of the filing of the second lawsuit, Defendant had incurred $8,430 in attorneys’
fees and $810 of filing fees pursuant to the removals to federal court. Since July 6, 2026, the date
the present lawsuit was filed, Defendant had incurred $4,107 in attorneys’ fees and $405 in filing
fees. These amounts are only attorney and filing fees, and do not represent the total losses that
Defendant has incurred due to the filings of these lawsuits the day before the foreclosure sales are
set to proceed. In the Report and Recommendation filed by the undersigned in the second lawsuit,
Plaintiff's attorney was warned that sanctions could result if subsequent lawsuits were filed to
delay the foreclosure of the property. (Docket No. 3-4, at 7.) All of these matters were addressed

at the July 14, 2026 hearing. Plaintiffs attorney had no response. Because that exact action was

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taken, the undersigned recommends that Plaintiffs attorney be sanctioned for violating Rule 11 in
the amount of $4,512, the costs of the current lawsuit.*

Il. CONCLUSION

For the foregoing reasons, the undersigned recommends that “Defendant’s Emergency
Motion to Dissolve Temporary Restraining Order” (Docket No. 3) be GRANTED and the
Temporary Restraining Order be dissolved. It is further recommended that Plaintiffs’ attorney be
sanctioned in the amount of $4,512.

NOTICE TO THE PARTIES

The Clerk shall send copies of this Report and Recommendation to the parties, who have
fourteen (14) days after receipt thereof to file written objections pursuant to 28 U.S.C. §
636(b)(1)(C) and Fed. R. Civ. P. 72(b). Failure to file timely written objections shall bar an
aggrieved party from receiving a de novo review by the District Court on an issue covered in this
Report and, except upon grounds of plain error, from attacking on appeal the unobjected-to
proposed factual findings and legal conclusions accepted by the District Court.

DONE at McAllen, Texas on the 16th day of July 2026.

Nadia S. Medrano |
UNITED STATES MAGISTRATE JUDGE

3 At the hearing on July 14, 2026, Plaintiff's attorney was advised that because this current
matter is still pending, any filings regarding any future foreclosures or any matter in regards to this
property, shall be filed in this federal case and cannot be filed in the county court.

Plaintiff's attorney was also advised that the District Court may also consider submitting
the matter to the Chief Judge regarding the attorney’s admission to practice in the Southern District
of Texas and/or to the State Bar for disciplinary consideration.

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