Robert Robinson v. Wells Fargo Bank, N.A.

TWELFTH COURT OF APPEALS

Case Number: 12-14-00212-CV

On Appeal from the Cherokee County Court-at-Law No. CV9282

Robert Robinson

v.

Wells Fargo Bank, N.A.

Reply Brief of the Appellant

Robert Robinson, Pro Se
Appellant
16897 Pine Lane
Flint, Texas 75762
(903) 245-0908
cilantro518@yahoo.com
 TWELFTH COURT OF APPEALS

Case Number: 12-14-00212-CV

On Appeal from the Cherokee County Court-at-Law No. CV9282

Robert Robinson

v.

Wells Fargo Bank, N.A.

Reply Brief of the Appellant

Robert Robinson, Pro Se
Appellant
16897 Pine Lane
Flint, Texas 75762
(903) 245-0908
cilantro518@yahoo.com
 Table of Contents

I. Table of Authorities 2

II. Introduction 5

III. Trustee's Deed is inadmissible 6

IV. "Boat already sailed" on deemed admissions 8

V. No evidence of privity between Kenneth W. Houston and Wells Fargo
Bank 11

VI. Well's Fargo's "no assignment needed" suggestion is a hoax 13

VII. Wells Fargo claims forcible detainer is a judicial proceeding that bars
interposition of constitutional claims (Brief of the Appellee at 21) 17

VIM. Appellee's bald assertion that "THERE WAS NO FABRICATION OF ANY
EVIDENCE BY WELLS FARGO" does not comply with TRAP 38.1 19

IX. Appellant's motion for sanctions is ripe for decision 21

X. No Remorse 21

XI. Conclusion and Prayer for Relief 24

Signature 25

Certificate of Service 25

Certificate of Word Count 26

1 I Page
 I. Table of Authorities

Cases

Austin Nursing Ctr., Inc. v. Lovato, 111 S.W.3d 845, 848 (Tex.2005) 15

Bexar County v. Stewart, 41 SW 2d 85 - 1931 9

Boiling v. FARMERS BRANCH INDEPENDENTSCH., 315 SW 3d 893 - Tex: Court of
Appeals, 5th Dist 5

Boone v. TEXAS EMPLOYERS'INS. ASS'N, 790 SW 2d 683, 688 - Tex: Court of
Appeals, Tyler 1990 8

Canton-Carter v. Baylor College of Medicine, 271 SW 3d 928, 931 - Tex: Court of
Appeals Houston (14th Dist) 2008 5, 6, 20
Chambers v. Nasco, Inc., 501 US 32, 51 - Supreme Court 1991 20, 21

DALLAS ANESTHES. v. Texas Anesthesia Group, 190 SW 3d 891, 895 - Tex: Court of
Appeals, 5th Dist 5

Davila v. World Car Five Star, 75 SW 3d 537, 543 - Tex: Court of Appeals, 4th Dist.
2002 21

De La 0 v. Housing Authority of City of ElPaso, 417 F. 3d 495, 501 - Court of
Appeals, 5th Circuit 2005 13

Gleason v. Taub, 180 S.W.3d 711, 713 (Tex.App.-Fort Worth 2005, pet. denied)
15

House v. Houston Waterworks Co., 88 Tex. 233, 31 S.W. 179, 179 (1895)
15

IN RE CARRSOW-FRANKLIN, Case No. 10-20010 (RDD). Bankr Court, SD New York
January 28, 2015 10,16

Lawton v. State, 913 S.W.2d 542, 554 (Tex.Crim.App.1995)' 6
Mansfield State Bank v. Cohn, 573 SW 2d 181,184-185 - Tex: Supreme Court
1978 7

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Marshall v. Vise, 767 SW 2d 699, 700 - Tex: Supreme Court 1989 7

McGlothlin v. Kliebert, 672 SW 2d 231, 232 - Tex: Supreme Court 1984 10,
18

MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex.1999)
15

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) 11

Michel v. State, 350 U.S. at 99, 76 S.Ct. at 163 18

Minnick v. State Bar of Texas, 790 SW 2d 87,89 - Tex: Court of Appeals, 3rd Dist.
1990 18

Miller v. Homecomings Financial, LLC, 881 F. Supp. 2d 825, 832 - Dist. Court, SD
Texas 2012 11,12

Mitchell v. Citifinancial Mortg. Co., 192 SW 3d 882 - Tex: Court of Appeals, 5th
Dist. 2006 13,14

Moore v. Sims, 442 U. S. 415, 426 (1979) 17,18

Mortgage Electronic Registration Systems v. Knight, No. 09-04-452 CV, 2006 WL
510338, (Tex.App-Beaumont March 2, 2006, no pet.) (mem. op) 14

Musicus v. Westinghouse Elec. Corp., 621 F. 2d 742, 744 - Court of Appeals, 5th
Circuit 1980 21

Pennzoil Co. v. Texaco Inc., 481 US 1,14 (1987) 18

Powelson v. US BANK NAT. ASS'N, 125 SW 3d 810, 811 - Tex: Court of Appeals, 5th
Dist. 2004 14

Rodriguez v. CITIMORTGAGE, INC., Tex: Court of Appeals, 3rd Dist.
2011 13

Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584, 593-594 (Dec. 10, 2013)
19

Texaco, Inc. v. Pennzoil, Inc. 729 S.W.2d 768, 856-58 (Tex.App. 1987, writ denied)
18

Texas Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000) 7

3 | Page
United States Fidelity & Guar. Co. v. Goudeau, 272 SW 3d 603, 611 - Tex: Supreme
Court 2008 7

Wade v. COM'N FOR LAWYER DISCIPLINE, 961 SW 2d 366, 377 - Tex: Court of
Appeals 1997 17

West v. Brenntag Sw., Inc., 168 S.W.3d 327, 334 (Tex.App.-Texarkana 2005, pet.
denied) 15

Williams v. Eggleston, 170 U.S. 304, 309,18 S.Ct. 617, 42 L.Ed. 1047 (1898)
15

Younger v. Harris, 401 U.S. 37 (1971) 17

Statutes and Rules

TEX. LOC. GOV'T CODE ANN. § 192.007(a) 12

TRAP 38.1, 38.2 5,20

Texas Rule of Civil Procedure TRCP 192.3(a) 10

Texas Rules of Evidence Rule 406 10

MERS Rules

MERSCORP, INC. RULES OF MEMBERSHIP; REQUIRED ASSIGNMENTS FOR
FORECLOSURE & BANKRUPTCY 11, 12

Newspaper Articles

"JPMadoff Chapter 7 Asks Jamie Dimon, 'At Long Last, Have You Left No Sense
of Decency?'"; Forbes; 2/05/2015; by Laurence Kotlikoff 16,17, 22, 23

Judge faults Wells Fargo in 'shocking'foreclosure; Boston Globe; AP March 9,
2014 21

NYFederal judge slams Wells Fargo forforged mortgage docs; New York Post;
January 31, 2015; by Catherine Curan 21

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 II. Introduction

Texas Rules of Appellate Procedure do not contemplate that an appellee's brief

can simply dodge an appellant's issues by refusing to address them. "Only when

we are provided with proper briefing may we discharge our responsibility to

review the appeal and make a decision that disposes of the appeal one way or the

other." Boiling v. FARMERS BRANCH INDEPENDENT SCH., 315 SW 3d 893 - Tex:

Court of Appeals, 5th Dist. See also TRAP 38.2(a)(2): ("When practicable, the

appellee's brief should respond to the appellant's issues or points in the order the

appellant presented those issues or points").

Also, with limited exceptions which do not apply to this point, 38.1 and

specifically 38.1(i) apply equally to the appellee. See TRAP 38.2(a)(1): "An

appellee's brief must conform to the requirements of Rule 38.1". See also DALLAS

ANESTHES. v. Texas Anesthesia Group, 190 SW 3d 891, 895 - Tex: Court of

Appeals, 5th Dist. (38.1(f) applies to appellee under 38.2(a)(1)).

Thus, when 38.1(i) requires "a clear and concise argument for the contention

made with appropriate citations to authorities and the record", the appellee is

also subject to the requirement. "This requirement is not satisfied by merely

uttering brief, conclusory statements unsupported by legal citations." Canton-

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Carter v. Baylor College of Medicine, 271 SW 3d 928, 931 - Tex: Court of Appeals

Houston (14th Dist) 2008.

Appellee's brief fails to specifically or adequately address any of Appellant's

issues, but rather vaguely asserts that the "only issue" provision of forcible

detainer law means that questions of judicial misconduct, attorney misconduct,

fabrication of evidence, and standing cannot be raised by a forcible detainer

defendant because such issues are "outside the scope" of forcible detainer.

Appellee doesn't even bother to deny that its trial counsel had a 1-hour private

meeting with the trial judge where the trial judge and counsel "went over the

case" in secret.

Because appellate courts are prevented from "advancing arguments on behalf of

either party" Lawton v. State, 913 S.W.2d 542, 554 (Tex.Crim.App.1995), the

Court should sustain Appellant's issues because Wells Fargo has effectively

conceded them.

III. Trustee's Deed is inadmissible

Throughout these proceedings and in the court below, Appellant has repeatedly

stated that in the court below, he objected to Wells Fargo's introduction of a

trustee's deed - a document which contradicts Wells Fargo's deemed admissions.

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(See "Appellant's Verified Motion to Disqualify Barrett, Daffin, Frappier, Turner &

Engel LLP and to Strike Wells Fargo's Pleadings" at 7). Now see Appellant's

"Response To Wells Fargo's Motion For Summary Judgment" CR 664: Trustee's

Deed "contradicts Wells Fargo's Deemed Admissions No's 9 and 10."

"Respondent objects to Wells Fargo's introduction of the putative trustee's

affidavit." (bold in original). This point is dispositive because as stated by the

Texas Supreme Court:

"Admissions produce two results: they relieve the requesting party's
burden of proving the admitted matter and prevent the admitting party
from disputing the same." United States Fidelity & Guar. Co. v. Goudeau,
272 SW 3d 603, 611 - Tex: Supreme Court 2008. "An admission once
admitted, deemed or otherwise, is a judicial admission, and a party may not
then introduce testimony to controvert it." Marshall v. Vise, 767 SW 2d
699, 700 - Tex: Supreme Court 1989. "We hold that a party waives the right
to rely upon an opponent's deemed admissions unless objection is made to
the introduction of evidence contrary to those admissions." Ibid.

Wells Fargo's Appellee's Brief continues to sing the song of the robo-signing banks

-that Texas' forcible detainer courts are rubber stamps for document fraud, but

no trustee's deed = no right to possession. See Texas Dep't ofTransp. v. Able, 35

S.W.3d 608, 617 (Tex. 2000). A successful challenge to a trial court's evidentiary

rulings usually requires the complaining party to demonstrate that the judgment

turns on the particular evidence excluded or admitted. See also Mansfield State

Bank v. Cohn, 573 SW 2d 181, 184-185 - Tex: Supreme Court 1978: "There cannot

7 | Page
be two sets of procedural rules, one for litigants with counsel and the other for

litigants representing themselves."

Accordingly, Appellant objects to the following statements in Appellee's Brief:

"Wells Fargo presented valid, factually sufficient evidence to the Trial
Court" (p.9); "As evidenced by the Substitute Trustee's Deed, Wells Fargo
purchased the property at the non-judicial foreclosure sale held on May 5,
2009" (p.10); "A certified copy of the Trustee's Deed was filed as part of
and in support of Wells Fargo's Motion for Summary Judgment." (p.10);
"Appellant tendered discovery to Appellee that covered allegations outside
the scope of a forcible detainer lawsuit." (p.12); "THERE WAS NO
FABRICATION OF ANY EVIDENCE BY WELLS FARGO" (p.18); and "As the
signatory of the Note and Deed of Trust, only Houston would have been in
direct privity with Wells Fargo." (p.20).

IV. "Boat already sailed" on deemed admissions

In particular, the statements: "Appellant tendered discovery to Appellee that

covered allegations outside the scope of a forcible detainer lawsuit" and "THERE

WAS NO FABRICATION OF ANY EVIDENCE BY WELLS FARGO" appear to challenge

the deemed admissions, but that boat has already sailed.

In Boone v. TEXAS EMPLOYERS'INS. ASS'N, 790 SW 2d 683, 688 - Tex: Court of

Appeals, Tyler 1990, this Court said:

"the trial judge may only permit withdrawal of deemed admissions when
the party seeking the same presents sufficient evidence to establish good
cause for his failure to make timely answers to the requested admissions,

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 and then only if the court further finds that the withdrawals can be ordered
without causing undue prejudice to the party relying on the admissions,
and that the presentation of the merits of the action will be subserved by
the withdrawal." The court further stated "the burden of proof on all three
requirements" is on "the party seeking withdrawal." Id. at 689.

Wells Fargo was unable to meet its burden, but scheduled a hearing on a frivolous

motion to strike the deemed admissions (claiming that Wells Fargo "will not be

unduly prejudiced if the Court strikes the admissions" CR 432 ); conflated the

hearing with a motion for summary judgment and plea to the jurisdiction; did not

argue for withdrawal of admissions at the hearing; met privately with the trial

judge for an hour; and submitted a final order -which the judge signed- denying

the motion to strike the deemed admissions. Wells Fargo did not appeal denial of

its motion to strike deemed admissions. (See "Appellant's Verified Motion to

Disqualify Barrett, Daffin, Frappier, Turner & Engel LLP and to Strike Wells Fargo's

Pleadings" at 2-3).

Regarding discovery requests "outside the scope of a forcible detainer lawsuit"-as

far back as 1931 Texas courts said that the tenant had an adequate remedy at law

because the tenant could raise any legal defenses to his possession of the

premises in the justice court and could pursue other relief in the district court for

damages not within the jurisdiction of the justice court. Bexar County v. Stewart,

41 SW 2d 85 - 1931. Citing Bexar County, the Texas Supreme Court said a

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tenant's "adequate remedy at law is to defend himself in the justice court suit."

McGlothlin v. Kliebert, 672 SW 2d 231, 232 - Tex: Supreme Court 1984.

Appellant's answer pled fraud on the court, illegality, and Wells Fargo's lack of

standing (CR 124 -179 amended by 253-268). Texas Rules of Evidence Rule 406

Habit; Routine Practice provides:

"Evidence of the routine practice of an organization whether corroborated
or not and regardless of the presence of eyewitnesses is relevant to prove
the conduct of the organization on a particular occasion was in conformity
with the habit or routine practice."

Concomitantly, Texas Rule of Civil Procedure TRCP 192.3(a) provides:

"In general, a party may obtain discovery regarding any matter that is not
privileged and is relevant to the subject matter of the pending action,
whether it relates to the claim or defense of the party seeking discovery or
the claim or defense of any other party. It is not a ground for objection that
the information sought will be inadmissible at trial if the information
sought appears reasonably calculated to lead to the discovery of admissible
evidence."

Along this same vein, a federal court recently found

"substantial evidence that Wells Fargo's administrative group responsible
for the documentary aspects of enforcing defaulted loan documents
created new mortgage assignments and forged indorsements when it was
determined by outside counsel that they were required to enforce loans."

IN RE CARRSOW-FRANKLIN, Case No. 10-20010 (RDD). Bankr Court,
SD New York January 28, 2015.

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As here, the Carrsow court was asked to determine issues of fraud, standing, and

Illegality when the debtor objected to a claim filed by Wells Fargo Bank, NA on the

basis that Wells Fargo is not the holder or owner of the note and beneficiary of

the deed of trust upon which the claim is based and therefore lacks standing to

assert the claim. Wells Fargo had previously sold the note to Freddie Mac thus

prompting the question: "if Freddie Mac was the owner of the loan, as both Wells

Fargo and Freddie Mac contended, why was Claim No. 1-1 filed by Wells Fargo not

as Freddie Mac's agent or servicer, but, rather, in its own name?"

Here, it is not disputed that Wells Fargo sold the promissory note to a

securitization trust and there is zero evidence of any assignment of the deed of

trust to Wells Fargo. Legally insufficient evidence or "no evidence" of a vital fact

exists when the record contains a complete absence of evidence of a vital fact.

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

V. No evidence of privity between Kenneth W. Houston and Wells Fargo Bank

In Miller v. Homecomings Financial, LLC, 881 F. Supp. 2d 825, 832 - Dist. Court, SD
Texas 2012, the court said:

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 "Banks are neither private attorneys general nor bounty hunters, armed
with a roving commission to seek out defaulting homeowners and take
away their homes in satisfaction of some other bank's deed of trust." TEX.
LOC. GOV'T CODE ANN. § 192.007(a) "declares that any transfer or
assignment of a recorded mortgage must also be recorded in the office of
the county clerk" and "the absence of such required filings is arguably some
evidence that no such assignment or transfer has occurred." Id. at 830.

In addition, RULE 8 (e)(i) of "MERSCORP, INC. RULES OF MEMBERSHIP; REQUIRED
ASSIGNMENTS FOR FORECLOSURE & BANKRUPTCY" require that:

"The note owner or the note owner's servicer shall cause the Certifying
Officer to execute the assignment of the Security Instrument from MERS to
the note owner's servicer, or to such other party expressly and specifically
designated by the note-owner before initiating foreclosure proceedings or
filing Legal Proceedings and promptly send the assignment of the Security
Instrument (in recordable form) for recording in the applicable public land
records."1

Nevertheless, Wells Fargo admits (Deemed Admission No. 1) and Cherokee

County land records confirm -that no such assignment was ever recorded

transferring the Houston deed of trust to Wells Fargo. Wells Fargo filed the

instant legal proceedings on August 20, 2012 and CR 222-223 dated June 27,

2013 demonstrates the lack of the required assignment.

Appellant does not object to the following statements in Appellee's Brief:

"Therefore Appellants established as a matter of law that it is legally
entitled to possession of the Property."(p.l9); and "Appellee is not a party
to the Deed of Trust which created the lien which was foreclosed on and
purchased by Appellant on May 5, 2009. To the contrary, Kenneth W.

1www.mersinc.org/cornponent/docman/doc_download/366-mers...

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 Houston (who is deceased) is the borrower of record and the signatory on
the Note, Deed of Trust, and associated loan documents. Appellee is not
mentioned in either the Note or Deed of Trust; nor is Appellee mentioned
in any of the origination documents. Appellee did not assume the loan or
otherwise become bound by its provisions and Houston did not assign his
rights under the Note or the Deed of Trust to Appellee." (p.20).

VI. Well's Fargo's "no assignment needed" suggestion is a hoax

"Judges are not like pigs, hunting for truffles buried in briefs." De La O v.
Housing Authority of City of El Paso, 417 F. 3d 495, 501 - Court of Appeals,
5th Circuit 2005.

Appellee's brief (p. 16-17) presents a series of bizarrely inapposite cases which

tend to support Appellant's position on this issue. See Rodriguez v.

CITIMORTGAGE, INC., Tex: Court of Appeals, 3rd Dist. 2011: "On February 19,

2009, the deed of trust was assigned by the note holder (Mortgage Electronic

Registration Systems Inc., as nominee for Primary) to Citimortgage." "At trial

before the county court at law, Citimortgage introduced into evidence, without

objection, certified copies of Rodriguez's deed of trust, the assignment of the

deed to Citimortgage, and the substitute trustee's deed of the property." See

Mitchell v. Citifinancial Mortg. Co., 192 SW 3d 882 - Tex: Court of Appeals, 5th

Dist. 2006: "Specifically, appellants contend that Citifinancial's complaint for

forcible entry and detainer did not sufficiently describe the land or premises for

13 | P a g e
which it sought possession." Id. at 883. "Appellants make no argument and

provide no authorities pertaining to the sufficiency of the evidence, thereby

waiving any such argument." Ibid. "Citifinancial, holder of the note for the Deed

of Trust, executed its power of sale under the Deed of Trust and acquired the

property." Ibid. See Powelson v. US BANK NAT. ASS'N, 125 SW 3d 810, 811 - Tex:

Court of Appeals, 5th Dist. 2004: "Appellant Richard Powelson contends in a

single point of error that the evidence supporting the judgment is insufficient as a

matter of law. Specifically, Powelson contends that U.S. Bank's complaint for

forcible detainer did not sufficiently describe the land or premises for which it

sought possession and failed to allege a right to immediate possession." See

Mortgage Electronic Registration Systems v. Knight, No. 09-04-452 CV, 2006 WL

510338, (Tex.App-Beaumont March 2, 2006, no pet.) (mem. op): "Knight

purchased the property with the proceeds of a loan from Mortgage Electronic

Registration Systems, Inc. ('MERS'), and she secured her loan with a deed of trust.

Knight defaulted on the loan and MERS foreclosed as allowed by the deed of

trust." "Knight appealed the judgment to the county court at law and it awarded

possession of the premises to her." "As Knight did not file an appellate brief, we

have no response opposing issue two's arguments."

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While pointing to no case which states a bank can enforce a deed of trust without

an assignment of either the note or the deed of trust, Wells Fargo concedes that

in order to prevail in this forcible detainer suit it must demonstrate a landlord-

tenant relationship exists between Appellant and Wells Fargo in order for a

forcible detainer court to have jurisdiction (Appellee's brief at 15). Then Wells

Fargo cites a provision of the Houston deed of trust and claims it has a right to

enforce a contract which was never assigned to Wells Fargo.

A plaintiff must have standing to bring a lawsuit. Austin Nursing Ctr., Inc. v.
Lovato, 171 S.W.3d 845, 848 (Tex.2005). Standing deals with whether a
litigant is the proper person to bring the lawsuit. West v. Brenntag Sw., Inc.,
168 S.W.3d 327, 334 (Tex.App.-Texarkana 2005, pet. denied). Without a
breach of a legal right belonging to a plaintiff, that plaintiff has no standing
to litigate. Gleason v. Taub, 180 S.W.3d 711, 713 (Tex.App.-Fort Worth
2005, pet. denied). A person may not sue for the breach of a contract
unless he is a party or third-party beneficiary to the contract. See, e.g.,
Williams v. Eggleston, 170 U.S. 304, 309, 18 S.Ct. 617, 42 L.Ed. 1047 (1898);
MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 651
(Tex.1999); House v. Houston Waterworks Co., 88 Tex. 233, 31 S.W. 179,
179 (1895).

How does a party who is not mentioned in any origination document

demonstrate that he was injured by the breech of a contract to which he is not a

party? The well-settled answer is that he must demonstrate that those rights

were assigned to him either directly by the Lender or indirectly through an

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unbroken chain of assignments tracing back to the Lender. An exception to the

general rule occurs when the promissory note -at some point in the chain of

assignments- has been endorsed "in blank" by either the original lender or a valid

assignee so that anyone with possession of the note has the right to enforce the

note. "[Ujnder Texas law a person in possession of a note indorsed in blank may

enforce the note and a related deed of trust or mortgage even if the noteholder

does not have a valid assignment of the mortgage or deed of trust." IN RE

CARRSOW-FRANKLIN, Case No. 10-20010 (RDD). Bankr. Court, SD New York

January 28, 2015.

Again here, there is a complete absence of any evidence that Wells Fargo has

standing to enforce the Houston Deed of Trust because there is no assignment

and there is no evidence that Wells Fargo owns or holds any note signed by

Kenneth Houston.

See "JPMadoff Chapter 7 Asks Jamie Dimon, 'At Long Last, Have You Left No Sense
of Decency?'"; Forbes; 2/05/2015; by Laurence Kotlikoff:

"And proving the old precept that every lawyer gets the client he deserves,
the authors give two very recent examples of JPMorgan Chase being
represented in foreclosure actions — one in Brooklyn and one in Westport,
Connecticut — by dishonest attorneys. In the Brooklyn case, the judge
found that JPMorgan Chase committed a 'fraud on the Court" when, among

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 other things, the lawyer filed false affidavits claiming that JPMorgan Chase
owned the mortgage it was foreclosing on when it didn't".2

VII. Wells Fargo claims forcible detainer is a judicial proceeding that bars
interposition of constitutional claims (Brief of the Appellee at 21).

No citation is needed to explain that state courts and federal courts are separate

systems which unify in a single supreme court whose mandates are then observed

in every inferior court whether state or federal. Although federal courts have the

power to enjoin state court proceedings, principles of comity and federalism as

announced in Younger v. Harris, 401 U.S. 37 (1971) were widely held to require all

state court judicial proceedings to permit the interposition of constitutional

claims. See i.e. Wade v. COM'N FOR LAWYER DISCIPLINE, 961 SW 2d 366, 377 -

Tex: Court of Appeals 1997("Regarding appellant's due process claims, a party is

entitled to a reasonable opportunity to have such issues heard and determined by

the court.")

The Younger Abstention Doctrine which required federal courts to abstain from

interfering in state court proceedings did not apply "where state law clearly bars

the interposition of the constitutional claims." Moore v. Sims, 442 U. S. 415, 426

(1979). Later the court said that:

http://www.forbes.com/sites/kotlikoff/2015/02/05/jpmadoff-chapter-7-asks-jamie-dimon-

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 "Not only would federal injunctions [involving a State's interest in 'forcing
persons to transfer property in response to a court's judgment'] interfere
with the execution of state judgments, but they would do so on grounds
that challenge the very process by which those judgments were obtained.
So long as those challenges relate to pending state proceedings, proper
respect for the ability of state courts to resolve federal questions presented
in state-court litigation mandates that the federal court stay its hand."
Pennzoil Co. v. Texaco Inc., 481 US 1, 14 (1987). "The question is whether
that challenge can be raised in the pending state proceedings subject to
conventional limits on justiciability [sp]. On this point, Texas law is
apparently as accommodating as the federal forum. Certainly, abstention is
appropriate unless state law clearly bars the interposition of the
constitutional claims." Moore v. Sims, id. at 425-426 .

A tenant's "adequate remedy at law is to defend himself in the justice court suit."

McGlothlin v. Kliebert, 672 SW 2d at 232.

"The constitutionality of a statute is an affirmative defense that must be
timely pled; otherwise, it is waived." Texaco, Inc. v. Pennzoil Co., 729 SW 2d
768, 856-857 -Tex: Court of Appeals 1987. "No procedural principle is more
familiar to this Court than that a constitutional right may be forfeited in
criminal as well as civil cases by the failure to make timely assertion of that
right." Michel v. State, 350 U.S. at 99, 76 S.Ct. at 163 "Virtually any right,
including a constitutional right, may be waived if not timely pleaded or
otherwise properly presented to the trial court. See Texaco, Inc. v. Pennzoil,
Inc. 729 S.W.2d 768, 856-58 (Tex.App. 1987, writ denied), cert, dism'd, 485
U.S. 994, 108 S.Ct. 1305, 99 LEd.2d 686 (1988). In the absence of any
pleading or other showing that he raised the issue of the alleged violation
of his due process rights in the trial court and obtained a ruling thereon,
Minnick must be considered to have waived any such complaint. See Tex.
R.App.P. 52(a)." Minnick v. State Bar of Texas, 790 SW 2d 87,89 - Tex: Court
of Appeals, 3rd Dist. 1990.

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Notwithstanding the foregoing, it should be noted that the Supreme Court

drastically narrowed the scope of Younger abstentions in Sprint Communications,

Inc. v. Jacobs, 134 S. Ct. 584, 593-594 (Dec. 10, 2013):

"Divorced from their quasi-criminal context, the three Middlesex conditions
would extend Younger to virtually all parallel state and federal proceedings,
at least where a party could identify a plausibly important state interest.
See Tr. of Oral Arg. 35-36. That result is irreconcilable with our dominant
instruction that, even in the presence of parallel state proceedings,
abstention from the exercise of federal jurisdiction is the 'exception, not
the rule.' Hawaii Housing Authority v. Midkiff 467 U.S. 229, 236, 104 S.Ct.
2321, 81 LEd.2d 186 (1984) (quoting Colorado River, 424 U.S., at 813, 96
S.Ct. 1236). In short, to guide other federal courts, we today clarify and
affirm that Younger extends to the three 'exceptional circumstances'
identified in NOPSI, but no further."

VIII. Appellee's bald assertion that "THERE WAS NO FABRICATION OF ANY
EVIDENCE BY WELLS FARGO" does not comply with TRAP 38.1

This contention is not supported by the record and is contradicted by Wells

Fargo's deemed admissions. On December 5, 2014 Appellant filed "Appellant's

Verified Motion to Disqualify Barrett, Daffin, Frappier, Turner & Engel LLP and to

Strike Wells Fargo's Pleadings" (motion for sanctions) wherein he described a

nation-wide pattern of fabrication of false documents by Wells Fargo's outside

counsel which were then presented to courts. In the court below, Wells Fargo

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admitted to filing these same false documents in this case. On December 18, 2014

this Court notified the parties that it was passing on the motion for sanctions after

Wells Fargo failed to file a response. Appellant by reference, incorporated the

motion for sanctions into his original brief. After the passage of 40 plus days, the

totality of Wells Fargo's response is:

"THERE WAS NO FABRICATION OF ANY EVIDENCE BY WELLS FARGO" and

"Appellant tendered discovery to Appellee that covered allegations outside
the scope of a forcible detainer lawsuit."

Because the requirement of TRAP 38.2(a)(1), 38.1(i) is "not satisfied by merely

uttering brief, conclusory statements unsupported by legal citations" Canton-

Carter v. Baylor College, ibid, Wells Fargo has failed to show any reason why

"Appellant's Verified Motion to Disqualify Barrett, Daffin, Frappier, Turner & Engel

LLP and to Strike Wells Fargo's Pleadings" should not be granted.

In explaining a court's inherent power to sanction reprehensible conduct, the U.S.
Supreme Court said:

Respondent's "entire course of conduct throughout the lawsuit evidenced
bad faith and an attempt to perpetrate a fraud on the court, and the
conduct sanctionable under the Rules was intertwined within conduct that
only the inherent power could address. In circumstances such as these in
which all of a litigant's conduct is deemed sanctionable, requiring a court
first to apply Rules and statutes containing sanctioning provisions to
discrete occurrences before invoking inherent power to address remaining
20 | P a g e
 instances of sanctionable conduct would serve only to foster extensive and
needless satellite litigation, which is contrary to the aim of the Rules
themselves." Chambers v. Nasco, Inc., 501 US 32, 51 - Supreme Court 1991.

IX. Appellant's motion for sanctions is ripe for decision.

"A district court is obliged to take measures against unethical conduct
occurring in connection with any proceeding before it. A motion to
disqualify counsel is the proper method for a party-litigant to bring the
issues of conflict of interest or breach of ethical duties to the attention of
the court." Musicus v. Westinghouse Elec. Corp., 621 F. 2d 742, 744 - Court
of Appeals, 5th Circuit 1980 (internal citations omitted).

Wells Fargo concedes that "Appellee believes that oral argument is not necessary

for this Court to understand the issues presented in the briefs of the parties."

(Brief of Appellee at 7). "[Proceedings for sanctions must afford a party notice

and an adequate opportunity to be heard. A plaintiff's pleadings satisfy this notice

requirement and allow the party to defend the claims against him." Davila v.

World Car Five Star, 75 SW 3d 537, 543 - Tex: Court of Appeals, 4th Dist. 2002

(internal citations omitted). Here, Wells Fargo has received both notice and an

adequate opportunity to be heard.

X. No Remorse

21 | P a ge
Newspaper articles appearing in the New York Post {NYFederal judge slams Wells

Fargo forforged mortgage docs)3 and the Boston Globe [Judge faults Wells Fargo

in 'shocking' foreclosure)*, report recent court decisions describing Wells Fargo's

conduct as:

"outrageous and reprehensible"; "deceptive and intentional conduct" that
"displayed a complete and total disregard for the rights of David and
Crystal Holm"; "Defendant Wells Fargo operated from a position of
superiority provided by its enormous wealth,"; "Wells Fargo's decision took
advantage of an obviously financially vulnerable family," the judge
continued, noting that Wells Fargo showed no evidence of remorse for the
harm caused; "In fact, the Court recalls the lack of remorse and humanity
illustrated by a Wells Fargo corporate representative who testified, 'I'm not
here as a human being. I'm here as a representative of Wells Fargo,'"; and
"shocking".

In these 2 cases, the courts awarded $2.9 million and $2.7 million in punitive
damages respectively.

Additional points contained in the Forbes article JP Madoff (id.) are:

"For months now, Chaitman and Gotthoffer have pointed out, with
irrefutable factual detail, that JPMorgan Chase has been turned into a
criminal enterprise on Dimon's watch."; "where the authors compare
JPMorgan Chase to the Gambino crime family. There are a lot more
similarities than differences."; "[Wjhile Dimon complains that it's

3NY Federal judge slams Wells Fargo forforged mortgage docs; New York Post; January 31,
2015; by Catherine Curan.
http://nypost.com/2015/01/31/ny-federal-judge-slams-wells-fargo-for-forged-mortgage-docs/

4 Judge faults Wells Fargo in 'shocking' foreclosure; Boston Globe; AP March 9, 2014;
http://www.bostonglobe.com/business/2014/03/09/bank-told-pay-for-shocking-
foreclosure/RI0baLejgcc3QedcwA63cl/story.html

22 | P a g e
 impossible to predict the Bank's legal expenses, the reason is, he can't
predict how many times in a given year the Bank will get caught violating
the law. And, as pointed out in Chapter 7, if JPMorgan Chase stops breaking
the law, it will not only have more predictable legal fees but lower ones.
But, of course, it will also have significantly lower profits."; "The different
schemes and artifices JP Morgan engages in to cheat its customers
underscores why the whole industry needs overhauling and true regulatory
oversight. The authors' recitation of JPMorgan's continuing misconduct,
again raises the question the authors have previously raised as to how long
the American people are going to tolerate a government that gives criminal
bankers get-out-of-jail free cards. The impact of too-big-to-fail criminal
institutions is devastating for our economy."

A yahoo search of the term "Wells Faro litigation" returns page after page after

page of litigation against Wells Fargo resulting in billions of dollars of payouts by

Wells Fargo for various frauds against depositors, investors, stockholders,

retirement funds, state and federal governments, and courts. The inference to be

drawn is that like JP Morgan, Wells Fargo makes more money by breaking the law

than by observing the law. Texas should not be a safe haven for such a business

model. Wells Fargo's continuing assertions that this Court has no jurisdiction

over Wells Fargo in this appeal (Appellee's brief at 8) supports an inference

that Wells Fargo lacks any remorse.

23 | P a g e
 XI. Conclusion and Prayer for Relief

In East Texas, late February is a time for planting potatoes and strawberries. For

years, Appellant has cultivated a large garden spot at 186 Tarrant Rd., Bullard (the

Houston Property) year-by-year adding nutrients to improve the land. Although

Appellant deeply resents being deprived of that garden by a lame duck trial judge

who flagrantly violated the Code of Judicial Conduct, he is more strongly affected

by the questions of his three year old son Garrett. Every couple of days, Garrett

asks: "Papa, when are we going home?" Because Garrett is too young to

understand the he has already inherited an inalienable right to the laws'

protections, Appellant tells him "the house is being fixed and Papa is working on

it".

Appellant's initial brief has already requested the appropriate relief and to that

Appellant only adds a plea to the Court to grant the requested relief without

delay.

APPELLANT prays for same.

24 I P a s e
 Respectfully submitted,

Robert Robinson, Pro Se
Appellant
16897 Pine Lane
Flint, Texas 75762
(903) 245-0908
cilantro518@yahoo.com

Certificate of Service

I, the undersigned hereby certify that a copy of the foregoing document was
served on all parties and Counsel on February 24, 2015 as follows:

VIA USPS FIRST CLASS MAIL

Melissa McKinney
Lead Counsel for Wells Fargo Bank, N.A.
Barrett Daffin Frappier Turner & Engel, LLP
15000 Surveyor Boulevard, Suite 100
Addison, Texas 75001
(972) 341-0995
(972) 341-0734 Facsimile
melissmc@bdfgroup.com

Robert Robinson

25 | P a g e
 Certificate of Word Count

I, the undersigned hereby certify that the applicable word count of this document
as measured by Microsoft Word is: 4,835.

Robert Robinson

26 | P a g e
 U.S. POSTAGE
DGTP
FRftNk'STON.TX
75763
FEB 24.'15

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12th Court of Appeals
1517 West Front Street
Suite 354
Tyler, Texas 75702

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