in Re Charles Storer, Agent Under a Power of Attorney for Kenneth Cooper McAfee

ACCEPTED 01-15-00838-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 10/2/2015 10:38:19 AM CHRISTOPHER PRINE CLERK No. -01-15-00838-CV ----- FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 1st IN THE COURT OF APPEALS 10/2/2015 10:38:19 AM FOR HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk INRE: CHARLES STORER, AGENTUNDERAPOwtROFATTORNEYFOR KENNETH COOPER MCAFEE, RELATOR PETITION FOR WRIT OF MANDAMUS Respectfully Submitted, ANDERSON PFEIFFER, PC Esther Anderson SBN: 00792332 Robert Teir (of Counsel) SBN: 00797940 845 FM 517 West, Suite 200 Dickinson, Texas 77539 Telephone: (281) 488-6535 Facsimile: (281) 488-0625 Email: esther@probateguardianship.com Attorneys for Relator, Charles Storer, Power of Attorney for Kenneth Cooper McAfee  IDENTITY OF PARTIES AND COUNSEL Relator, Charles Storer, Agent under a Power of Attorney for Kenneth Cooper McAfee, certifies that the following is a complete list of the parties, the attorneys and any other persons who have any interest in the outcome of this lawsuit. 1. Relator: Charles Storer, Agent under a Power of Attorney for Kenneth Cooper McAfee Counsel: Esther Anderson Anderson Pfeiffer, PC SBN: 00792332 845 FM 517 West, Suite 200 Dickinson, Texas 77539-2903 Office: 281-488-6535 Facsimile: 281-614-5205 Email: esther@probateguardianship.com Of Counsel: Robert Teir (of Counsel) SBN: 00797940 845 FM 517 West, Suite 200 Dickinson, Texas 77539 Office: 832-365-1191 Facsimile: 832-550-2700 Email: rob@teirlaw.com 2. Respondent: Honorable Loyd Wright Judge, Probate Court No. 1 Harris County, Texas 201 Caroline, 6th Floor Houston, Texas 77002 ii 3. Real Party in Interest: Rosemary Foltyn and Jake Foltyn Counsel: Dean M. Blumrosen SBN: 02517900 4615 Southwest Freeway, Suite 850 Houston, Texas 77027 Office: 713-524-2225 Facsimile: 713-524-5570 Email: Dblumrosenlaw@aol.com 4. Real Party in Interest: Rosemary Foltyn, Administratrix of The Estate of Janet Foltyn McAfee, Deceased Counsel: Mary Elizabeth Duff Mitchell & Duff, LLC SBN: 06166880 21 0 Main Street Richmond, Texas77469 Office: 281-341-1718 Facsimile: 281-239-7928 Email :eduff@mitchellandduff.com iii  TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ................................................................. II, III TABLE OF CONTENTS ............................................................................................... IV, v INDEX OF AUTHORITIES ...................................................................... VI, VII, VIII, IX, X STATEMENT OF THE CASE .......................................................................................... XI STATEMENT OF JURISDICTION ............................................................................... XIII ISSUES PRESENTED ................................................................................................... XIII 1. Does the Probate Court have jurisdiction to act without a pending cause of action? (No.) 2. Without a pending cause of action, are the June 8, 2011 temporary injunction and the May 18, 2015 Orders void? (Yes.) 3. Do the doctrines of collateral estoppel and res judicata bar re-tracing of the Woodforest account? (Yes.) 4. Do the two Orders amount to a violation of K. McAfee's due process rights? (Yes.) 5. Do the two Orders amount to an abuse of discretion? (Yes.) STATEMENTOFFACTS .................................................................................................. 1 SUMMARY OF ARGUMENT ......................................................................................... 11 iv ARGUMENT .................................................................................................................... 13 I. This case warrants mandamus relief. II. The Probate Court does not have jurisdiction to act without a pending cause of action. III. Without a pending cause of action, the temporary injunction and the May 18, 2015 Order are void. IV. Res Judicata and Collateral Estoppel barre- tracing of the Woodforest account. V. The Estate's claims cannot be satisfied from the Woodforest account or assets stemming from the Woodforest account and continued obstruction of these funds violates due process and constitutes an abuse of discretion. PRAYER ...........................................................................................................................45 CERTIFICATE OF SERVICE ......................................................................................... 47 CERTIFICATE OF COMPLIANCE ................................................................................. 48 RULE 52.3(1) CERTIFICATION ..................................................................................... .49 APPENDIX ....................................................................................................................... 50 v  INDEX OF AUTHORITIES CASES PAGE(S) 360 Degree Commc 'ns Co. v. Grundman, 937 S.W.2d 574 (Tex. App.-Texarkana 1996, no writ) ............................ 22 Amstadt v. US. Brass Corp., 919 S.W.2d 644 (Tex. 1996) ........................................................................ 37 Barr v. Resolution Trust Corp., 837 S.W.2d 627 (Tex. 1992) ..................................................... 25, 26, 38, 42 Benson v. Wanda Petroleum Co., 468 S.W.2d 361 (Tex. 1971) ........................................................................ 37 Big D Props., Inc. v. Foster, 2 S.W.3d 21 (Tex. App.-Fort Worth 1999, no pet.) .................................. 22 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002) .......................................................................... 21 Crowson v. Wakeham, 897 S.W.2d 779 (Tex. 1995) ........................................................................ 40 Cunningham v. Parkdale Bank, 660 S.W.2d 810 (Tex. 1983) ............................................................. 17, 18,19 Dionne v. Bouley, 757 F.2d 1344 (1st Cir. 1985) ...................................................................... 44 Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714 (Tex. 1990) .................................................................. 35,37 Eastern Energy, Inc. v. SBY P'ship, 750 S.W.2d 5 (Tex. App.-Houston [1st Dist.] 1988, no writ) ................... 25 EOG Res., Inc. v. Gutierrez, 75 S.W.3d 50 (Tex. App.-San Antonio 2002, no pet.) .............................. 22 vi Evans v. C. Woods, Inc., 34 S.W.3d 581 (Tex. App.-Tyler 1999, no pet.) ....................................... 22 Goldstein v. Comm 'n for Lawyer Discipline, 109 S.W.3d 810 (Tex. App.-Dallas 2003, pet. denied) ............................. 38 Houtex Ready Mix Concrete & Materials v. Eagle Canst. & Envtl. Servs., L.P., 226 S.W.3d 514 (Tex. App.-Houston [1st Dist.] 2006, no pet.) ............... 38 In re Cerberus Capital Mgmt., L.P. 164 S.W.3d 379 (Tex. 2005) (orig. proceeding) .................................... 14,45 In re Dickason, 987 S.W.2d 570 (Tex. 1998) .................................................................. 13, 15 In re Francis, 186 S. W.3d 534 (Tex. 2006) ........................................................................ 16 In re Mask, 198 S.W.3d 231 (Tex. App.-San Antonio 2006, orig. proceeding) .......... 15 In re Pierce, No. 13-12-00125-CV, 2012 WL 3525638 (Tex. App.-Corpus Christi Aug. 10,2012, orig. proceeding) (mem. op.) .................................................................................. 14, 15, 16, 45 In re Sw. Bell Tel. Co., 35 S.W.3d 602 (Tex. 2000) (orig. proceeding) (per curiam) .................. 13, 15 InterFirst Bank San Felipe v. Paz Constr. Co., 715 S.W.2d 640 (Tex. 1986) (per curiam) ............................................. 13,22 Johnson & Higgins ofTex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507 (Tex. 1998) ...................................................... 27, 32, 33,36 Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) .......................................................................... 40 vii Logan v. McDaniel, 21 S.W.3d 683 (Tex. App.-Austin 2000, pet. denied) ............................... 40 Lozano v. Lozano, 975 S.W.2d 63 (Tex. App.-Houston [14th Dist.] 1998, pet. denied) ........ 28 Lucik v. Taylor, 596 S.W.2d 514 (Tex. 1980) ........................................................................ 18 Murray v. 0 & A Express, Inc., 630 S. W.2d 633 (Tex. 1982) ........................................................................ 18 Parklane Hosiery Co. v. Shore, 439 u.s. 322 (1979) ..................................................................................... 37 Phillips v. Allums, 882 S.W.2d 71 (Tex. App.-Houston [14th Dist.] 1994, writ denied) ........ 37 Quinney Elec., Inc. v. Kondas Entm 't, Inc., 988 S.W.2d 212 (Tex. 1999) (per curiam) ................................................... 26 Qwest Commc 'ns Corp. v. AT&T Corp., 24 S.W.3d 337 (Tex. 2000) (per curiam) ............................................... 13, 22 Rexrode v. Bazar, 37 S.W.2d 614 (Tex. App.-Amarillo 1997, no writ) ........................... 34,41 Roark v. Allen, 633 S.W.2d 804 (Tex. 1982) ........................................................................ 18 Robbins v. HNG Oil Co., 878 S.W.2d 351 (Tex. App -Beaumont 1994, writ dism'd w.o.j.) ............ 37 Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1 (Tex. 1986) ............................................................................ 38 Smith v. Lanier, 998 S.W.2d 324 (Tex. App.-Austin 1999, pet. denied) ........................ 17,18 viii State & Cty. Mut. Fire Ins. v. Miller, 52 S.W.3d 693 (Tex. 2001) .......................................................................... 28 State v. Traylor, 374 S.W.2d 203 (Tex. 1963) .................................................................. 17, 19 Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796 (Tex. 1994) ................................................ 26, 27, 32, 37,38 Tankersley v. Durish, 855 S.W.2d 241 (Tex. App.-Austin 1993, writ denied) ............................ 38 Tex. Dep 't ofPub. Safety v. Petta, 44 S.W.3d 575 (Tex. 2001) ............................................................... 27, 28,37 Texas Natural Res. Conservation Comm 'n, 85 S.W.3d 201 (Tex. 2002) (orig. proceeding) ............................................ 15 Walling v. Metcalfe, 863 S.W.2d 56 (Tex. 1993) (per curiam) ..................................................... 24 ix RULES TEX. R. CIV. P. § 2 ........................................................................................................................... 18 § 22 ......................................................................................................................... 18 § 97 ......................................................................................................................... 42 § 683 ................................................................................................................. 18, 24 STATUTES TEXAS ESTATE CODE § 22.029 .................................................................................................................. 24 § 31.001 ............................................................................................................. 17, 18 § 31.002 ............................................................................................................ 17, 18 § 32.001 .................................................................................................................. 17 § 402.001 ............................................................................................................... 17 TEXAS PROP. CODE § 42.0021(a) 42 U.S.C. 407 ................................................................................................... 12, 31, 32,44 X  STATEMENT OF THE CASE Nature of the Case The Probate Court granted an independent estate administration m one cause number, and heard a wrongful death proceeding in another cause number. The Probate Court issued a temporary injunction in the estate administration. A final judgment was entered in the wrongful death proceeding, but no claims were filed in the estate administration. Probate Court Probate Court No. 1 of Harris County, Texas Hon. Loyd Wright, Presiding Disposition Below The Probate Court refused to fully lift the temporary injunction and instead ordered that a portion of funds in an account containing only social security benefit proceeds be turned over to the County Clerk's registry. xi  STATEMENT OF JURISDICTION The Court has jurisdiction to issue a writ of mandamus under TEX. Gov'T CODE §22.22l(b)(l). xii  ISSUES PRESENTED The Probate Court entered an order declaring Kenneth McAfee's account at Woodforest National Bank ending in -404 exclusively holds his social security benefit proceeds that are exempt from garnishment. Subsequently, the Probate Court refused to fully lift a temporary injunction on this account and ordered a portion of such funds to be turned over to the County Clerk's registry for the benefit of the estate of Janet Foltyn McAfee, Deceased until the nature of two deposits at issue has been determined. 1. Does the Probate Court have jurisdiction to act without a pending cause of action? (No.) 2. Without a pending cause of action, are the June 8, 2011 temporary injunction and the May 18, 2015 Orders void? (Yes.) 3. Do the doctrines of collateral estoppel and res judicata bar re-tracing of the Woodforest account? (Yes.) 4. Do the two Orders amount to a violation ofK. McAfee's due process rights? (Yes.) 5. Do the two Orders amount to an abuse of discretion? (Yes.) xiii  STATEMENT OF FACTS Kenneth Cooper McAfee ("K. McAfee" herein) was convicted of a criminal offense involving the death of his wife, Janet Foltyn McAfee, and is currently serving his sentence at a Texas correctional institution. Janet McAfee died on May 8, 2010. On June 8, 2010, Janet McAfee's mother, Rosemary Foltyn, was appointed Independent Administrator of Janet McAfee's estate by the Probate Court No. 1 of Harris County, Texas under Cause no. 396,935. Rosemary Foltyn, in this capacity, will be referred to herein as "the Estate." On February 23, 2011, Janet McAfee's parents, Rosemary and Jake Foltyn, individually, and the Estate brought a wrongful death action against Kenneth McAfee in the same Court, under the ancillary Cause no. 396,935-401. On March 31, 2011, the Estate obtained a Temporary Restraining Order in the estate administration under Cause no. 396,935, which was eventually converted to the June 8, 2011 Agreed Order for Temporary Injunction. Tab 1. The Temporary Injunction enjoins K. McAfee from the use and control of his assets and assets he shared with Janet McAfee and states that it is to remain in place until the Court makes a determination of what property belongs to the Estate of Janet McAfee or renders a full and final judgment in the wrongful death suit. Tab 1, at p. 9. PAGE 1  On March 21, 2014, the Probate Court granted a summary judgment in the wrongful death action in favor of the Foltyns and awarded them each $1,000,000.00. Tab 2. The June 8, 2011 Temporary Injunction remains in place today and affects K. McAfee's Woodforest National Bank account that is the subject of this mandamus proceeding and his 401(k) account at GMS. The Foltyns seek writs ofgarnishment; two of K. McAfee's accounts are exempt. On October 9, 2014, the Foltyns sought Writs of Garnishment against K. McAfee's bank accounts at The GMS Group, L.L.C., and Woodforest National Bank under the ancillary wrongful death cause of action no. 396,935-401. Tab 3. Charles Storer, as agent under a power of attorney for K. McAfee, acted on behalf ofK. McAfee in the 401 garnishment proceedings. On November 19, 2014 Storer filed a Motion to Quash Writs of Garnishment only to the extent that they reached two particular accounts: a GMS account ending in -606 holding only K. McAfee's tax-deferred retirement benefits from his previous employer, and the Woodforest account ending in -404 holding only K. McAfee's Social Security Disability Insurance benefits, claiming both are exempt from judgment creditors. Tab4. PAGE2  On January 7, 2015, the Estate entered the 401 garnishment proceedings by filing a Notice to Court wherein the Estate objected to Storer's Motion to Quash and claimed a community property interest in the two accounts Storer sought to protect from garnishment. Tab 5. The Foltyns, individually, also filed a Response to Charles Storer's Motion to Quash Writs of Garnishment, claiming that Charles Storer did not have standing, and seeking a stay pending K. McAfee's compliance with post-judgment discovery. Tab 6. On January 8, 2015, the parties attended a hearing, which was ultimately continued by the Court until the issues of standing and post judgment discovery were addressed. Tab 7. 1 On January 22, 2015, the Court heard arguments of counsel regarding the writs and Storer's Motion to Quash. Tab 8. All counsel agreed that the writs on the Woodforest -404 account should be quashed because it held K. McAfee's 401(k) and social security benefits. Tab 8, at p. 4, Ins. 1-9; at p. 8, Ins. 11-15 and at p. 18, Ins. 15-18. All counsel also agreed the Foltyns should receive the balance in all of the remaining accounts. Tab 8. However, there was disagreement over whether the Order should include language to release the temporary injunction, and to what extent. Tab 8. 1 The January 8, 2015 Reporter's Record states Cause No. 396,935, when it should actually state Cause No. 396,935-401. PAGE3  The Estate did not want to release the temporary injunction on the 401(k) account (GMS -606) because of its alleged verbal claim for Janet McAfee's potential community property interest. Tab 8. The Foltyns did not want to release either of the two accounts, their reason being, "I don't think [the Estate] has had a complete [opportunity] to review and look at everything on the Woodforest account." Tab 8, at p. 3, Ins. 21 through p. 4, ln. 1. The Court inquired more than once if the Estate had enough information to determine its claims. Tab 8. The Estate's response was that it was "reasonably sure" that the 401(k) was the only issue and that the Woodforest account held only K. McAfee's social security benefits, to which they had no claim. Tab 8, at p. 17, throughp.18, lns.1-25. The Foltyns and the Estate made no argument contrary to Storer's argument in his Motion to Quash or his oral arguments that the Woodforest -404 account held only K. McAfee's social security benefits and the Court considered the proposed orders. Tab 8, at p. 21, Ins. 6-8. On January 27, 2015, the Probate Court entered an Order Partially Granting Motion to Quash Writs of Garnishment. Tab 9. The Probate Court found that both the GMS -606 account and the Woodforest -404 account were exempt from garnishment and the writs against these two accounts were quashed. Tab 9, at p. 2. The Probate Court further found that K. McAfee's remaining accounts at GMS PAGE4 (ending in -008 and -628) remained subject to the writs and that payment from such accounts shall issue to the Foltyns "upon receipt of an order releasing the Agreed Order for Temporary Injunctions in Cause No. 396,935; In the Estate of Janet Foltyn McAfee, Deceased, dated June 8, 2011." Tab 9, at p. 3. Specific language of the Order, as it relates to the Woodforest social security account, reads: "On this day came to be considered the Motion to Quash Writs of Garnishment filed by Charles Storer, Power of Attorney for Kenneth Cooper McAfee. After review and consideration of said Motion, the evidence, the responses, and the arguments of counsel, the Court finds the following: 5. The Woodforest account ending in 404 holds, exclusively, social security benefit proceeds of Kenneth C. McAfee which benefits are exempt from garnishment under 42 U.S.C. 407. 42 U.S.C. provides an absolute exemption and there are no statutory exceptions to same. Because the Woodforest account ending in 404 contains only funds exempted from garnishment, the writ directed at Woodforest as to Kenneth McAfee's account ending in 404 should be quashed." Tab 9, at p. 2. The parties deal with the temporary injunction in the estate administration. On February 10, 2015, Storer filed a Motion to Partially Release Temporary Injunction in the estate administration cause (396,935) regarding the exempt Woodforest social security account and the non-exempt GMS accounts payable to the Foltyns (ending in -008 and -628). Tab 10. On March 6, 2015, the Estate filed its own Motion to Partially Release Temporary Injunction, in which it sought PAGES release of only the non-exempt GMS accounts payable to the Foltyns (ending in - 008 and -628), and requested the temporary injunction otherwise remain in place, without stating any reason why. Tab 11. On March 12, 2015, a hearing was held to consider the partial release of the temporary injunction. Tab 12.2 The Estate now resisted lifting the temporary injunction as to the Woodforest social security account because it questioned the characterization of two deposits that were made in the amounts of $25,162.66 on April 23, 2010, and $9,735.92 on May 4, 2010. Tab 12, at p. 3, Ins. 10-24; at p. 8, Ins. 16-25; at p. 9, Ins. 1-7; at p. 10, Ins. 13-21; at p. 15, Ins. 17-24; at p. 17, Ins. 6-10. The Estate claimed it might have an interest of at least 50% in these deposits if they were community property, and that this potential claim should be considered "completely separate" from the garnishment proceedings brought by the Foltyns, individually. Tab 12, at p. 8, Ins 16-25; at p. 9, Ins. 5-7. 2 The March 12, 2015 Reporters Record states Cause No. 396,835-401 when it should actually state Cause No. 396,935 or include both. PAGE6  The Foltyns' argument to keep the temporary injunction in place was based upon (1) the language in the January 27, 2015 Order was overbroad, and (2) the Court should use its inherent authority to rule for the Estate's claim due to the purported lack of information from K. McAfee. Tab 12, at p. 9, Ins. 21-25; at p. 10, Ins. 1-3; at p. 6lns. 10-25; at p. 7, Ins. 1-6; at p. 13, Ins. 23-25; at p. 14, lns. 1- 8. The language in the January 27, 2015 Order is not overbroad. It is true that the Estate may have a community property interest inK. McAfee's 401(k) account but the Woodforest social security account is different because it was traced and found to include only K. McAfee's social security benefits, which benefits are his separate property. Tab 9. Additionally, the Estate's own Inventory reveals the Estate has had the information they are now seeking since at least August 26, 2011. Tab 16, at p. 2. Storer reminded the Court that, under the doctrine of res judicata, it had already found that every dime in the Woodforest account is K. McAfee's social security benefits. Tab 12, at p. 7, Ins. 14-25; at p. 8, Ins. 1-13. In fact, the two deposits in question were specifically traced in Storer's Motion to Quash and they were shown to have been withdrawn close to the time of the deposits, leaving only social security benefits in the social security account. Tab 4, at p. 10, ~25, and Exhibit "A" to such Motion; Tab 12, at p. 11, Ins. 18-25. And with no objection or PAGE? contrary evidence to Storer's tracing, or arguments of counsel, the Estate previously admitted it was reasonably sure the Woodforest account held only K. McAfee's social security benefits. Tab 8, at p. 18, Ins. 13-18. The Woodforest social security account was traced, and that is what the Court found. Tab 9. That was indeed the purpose of Storer's Motion to Quash Writs of Garnishment, to prove that the entire Woodforest account was made up only of his social security benefits and nothing else. Tab 4. The Estate took the additional step to voluntarily enter the garnishment proceeding, make its claim, and to sit silent as to any of the details regarding the Woodforest social security account. Tab 8, at p. 5, Ins. 5-18; at p. 12, Ins. 10-23; at p. 17, Ins. 18-24; at p. 18, lns. 13.23. Their new challenge to the characterization of two deposits is waived and is ban·ed by collateral estoppel and res judicata. Nevertheless, on March 16, 2015, the Probate Court granted Rosemary Foltyn's Motion, releasing only the non-exempt GMS accounts that were ordered to be paid to the Foltyns (ending in -008 and -628), and continued the temporary injunction. Tab 13. The Probate Court did not release K. McAfee's exempt Woodforest -404 account. Tab 13. PAGES Storer tries again. On April 15, 2015, Storer filed a Motion for Reconsideration ... and Motion for Entry of Order Releasing Social Security Proceeds from Injunction, which was amended on May 4, 2015. Tab 14 (First Amended Motion). 3 Storer urged the Court again to release K. McAfee's social security proceeds and reminded the Probate Court that a determination regarding the tracing of the funds in the Woodforest account had already been made. Tab 14. On May 14, 2015, the Probate Court heard the matter again, and specifically reconsidered the tracing of the two deposits and withdrawals at issue in the Woodforest account. Tab 15, at p. 16, Ins. 15-25; at p. 17, Ins. 1-17. Again, there was no contrary evidence presented against Storer's tracing, just arguments that Storer should have to re-prove his tracing with clear and convincing evidence. Tab 15, at p. 10, Ins. 12-24. Storer explained some of the lingering questions that had been raised: First, because social security benefits are not community property, any claim the Estate might have in the two deposits/withdrawals cannot be satisfied from the social security account, but must be satisfied from other assets of K. McAfee. Tab 15, at p. 14, Ins. 6-15; Tab 14, at p. 9, ~iii. 3 Because the parties and discussions had started to comingle between the attorneys involved in the base and ancillary case, the First Amended Motion for Reconsideration was filed in both causes, but the May 18, 2015 Order on same was signed in the wrongful death ancillary case (396,935-401). PAGE9  Second, the Estate indeed had possession of records showing the source of the deposits since at least the time of filing the Estate inventory on September 26, 2011. Tab 16; Tab 15, at p. 12, Ins. 4-25; at p. 13, Ins. 1-17. Third, everyone participated in the January 22, 2015 hearing and had the opportunity to propose language for the Court's January 27, 2015 Order that Mr. Blumrosen claims is too broad. Tab 15, at p. 27, Ins. 11-25. The Probate Court releases part of the social security account to K. McAfee, but takes control of the remaining social security proceeds. On May 18, 2015, the Probate Court signed the Estate's Order on First Amended Motion for Reconsideration ... and Motion for Entry of Order Releasing Social Security Proceeds from lrifunction.... Tab 17. The Court found that Storer did not prove the characterization of the two deposits by clear and convincing evidence and ordered the Woodforest funds be released to K. McAfee, but for $34,898.58 to be made payable to the County Clerk, for the use and benefit of the Estate of Janet F oltyn McAfee, Deceased, until the nature of two deposits at issue has been determined. Tab 17. PAGE10  The Probate Court not only refuses to lift the temporary injunction as to all of K. McAfee's social security benefits, but now has essentially garnished a large part of the account ($34,898.58) to satisfy the Estate's alleged verbal claim. These acts exceed the Court's authority and discretion over K. McAfee's social security funds. SUMMARY OF ARGUMENT Mandamus is appropriate to compel a trial court to rescind a void order, to correct a clear abuse of discretion, and to preserve important substantive and procedural rights from impairment and loss when appellate remedy to cure the error is not adequate. These criteria are present here. The Probate Court does not have jurisdiction to act without a pending cause of action. There are no pleadings filed in the estate administration against K. McAfee, and there are no live pleadings remaining in the wrongful death/garnishment proceedings at all. The Probate Court does not have jurisdiction to handle estate claims sua sponte. Therefore, the temporary injunction should be dissolved and the May 18, 2015 Order should be set aside for lack of jurisdiction. Additionally, without a pending cause of action, the temporary injunction and the May 18, 2015 Order are void because an order for an injunction must set a cause for trial. This requirement is mandatory and failure to comply makes the temporary injunction and the order void, as they have turned into nothing short of a PAGE 11 permanent injunction. Therefore, the temporary injunction should be dissolved and the May 18, 2015 Order should be set aside, both for being void. Furthermore, res judicata and collateral estoppel bar re-tracing of the Woodforest account. Storer previously put on tracing evidence, without question or objection, to show the Woodforest account holds only K. McAfee's social security benefits, and nothing else. The Court heard and decided that this account in fact holds only McAfee's social security benefits and is exempt from creditors, no exception. Any later "questions" the Estate may have that the Woodforest account needs to be traced again are waived and are barred by the doctrines of collateral estoppel and res judicata. The Probate Court's most recent May 18, 2015 Order ignored Storer's arguments concerning res judicata and invited further litigation. Although the Probate Court released a portion of the Woodforest account to K. McAfee, the Court took a drastic step by ordering Woodforest to turn over $34,898.58 of such account to the County Clerk's registry for the benefit of the Estate of Janet Foltyn McAfee. This was a violation of due process and contrary to the protections provided by 42 U.S.C. 407. Such actions have amounted to an abuse of discretion that needs to be conected. PAGE 12  ARGUMENT & AUTHORITIES I. This case warrants mandamus relief. Mandamus is appropriate to compel a trial court to rescind a void order, to correct a clear abuse of discretion, and to preserve important substantive and procedural rights from impairment and loss when appellate remedy to cure the error is not adequate. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam) (adding that "mandamus is proper if a trial court issues an order beyond its jurisdiction") (citing In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998)). Void order The June 8, 2011 temporary injunction is void because the Probate Court does not have jurisdiction, there are no pleadings on file, and there is no cause set for trial. See Qwest Commc 'ns Corp. v. AT&T Corp., 24 S.W.3d 337, 337 (Tex. 2000) (per curiam); InterFirst Bank San Felipe v. Paz Constr. Co., 715 S.W.2d 640 (Tex. 1986) (per curiam). The requirement for setting a cause for trial is mandatory and must be strictly followed, or else the order is subject to being declared void and dissolved. See Qwest Commc 'ns Corp., 24 S.W.3d at 337; InterFirst Bank San Felipe, 715 S.W.2d at 641. The temporary injunction should have been rescinded by the trial Court and should be set aside by the Court of Appeals. PAGE 13  The May 18, 2015 Order directing $34,898.58 from K. McAfee's social security account be deposited into the registry of the court for the benefit of Janet Foltyn McAfee is void for the same reasons: the Probate Court does not have jurisdiction, there are no pleadings on file, and there is no cause set for trial on the determination of to whom the funds belong. This Order should be set aside by the Court of Appeals. Clear abuse of discretion A court abuses its discretion "if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law." In re Pierce, No. 13-12-00125-CV, 2012 WL 3525638, at *2 (Tex. App.-Corpus Christi Aug. 10, 2012, orig. proceeding) (mem. op.) (citing In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding)). The law was clearly laid out as to why the temporary injunction should be dissolved, at least in regards to the Woodforest account, for lack of jurisdiction - no pleadings being on file and no cause being set for trial. Furthermore, it is clear that the issue of tracing the Woodforest account had already occurred through the Probate Court's January 27, 2015 Order, which determined that 100% of the funds were K. McAfee's social security benefits, and nothing else. PAGE14  The Probate Court's refusal to lift the temporary injunction, and instead to take control of K. McAfee's funds and to hold them for the use and benefit of the Estate, before it even receives what is being asked for, constitutes an abuse of discretion. Appellate remedy not adequate Because the June 8, 2011 temporary injunction and the May 18, 2015 Order are void, Storer need not show lack of an adequate appellate remedy, and mandamus relief is appropriate. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam) (citing In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998)). 4 Nevertheless, at this point in time, there will never be a final order to appeal on the Probate Com1's seizure of K. McAfee's social security benefits because there are no claims on file by the estate and because Storer can no longer obtain a hearing with the Court. That is also why this proceeding is not subject to an accelerated appeal, because there is no pending claim. See Texas Natural Res. Conservation Comm 'n, 85 S.W.3d 201, 206-07 (Tex. 2002) (orig. proceeding) (holding mandamus was available when "a restraint on conduct ... has yet to be subject to a truly adversarial proceeding"); See In re Pierce, 2012 WL 3525638, at 4 See also In re Pierce, No. 13-12-00125-CV, 2012 WL 3525638, at *4 (Tex. App.-Corpus Christi Aug. 10, 2012, orig. proceeding) (mem. op.) ("temporary injunctions which do not comply with 683 are void, and when the trial court's order is void, mandamus relief is available regardless of whether there is an adequate remedy by appeal"); In re Mask, 198 S.W.3d 231,233 (Tex. App.-San Antonio 2006, orig. proceeding) (concluding that when an order is void, then "mandamus relief is available regardless of whether there is an adequate remedy by appeal") . PAGE 15 *4 (writ of mandamus may be appropriate for reviewing a temporary injunction) (citing In re Francis, 186 S.W.3d 534,538 (Tex. 2006)). There are also significant benefits to mandamus relief in this matter, due to the federally mandated protection provided to K. McAfee's social security benefits, which would be rendered moot absent review by mandamus. 5 The Probate Court has seized money that it had previously declared to be K. McAfee's social security benefits. The United States legislature and Supreme Court have made it painstakingly clear that social security proceeds are prohibited from seizure in the legal process, regardless of the merits of the claim, including community property claims. The Probate Court's rulings defeat the purpose of these laws and place Storer in the position of having to continuously re-litigate the exempt status of his social security benefits. Appellate remedy would be inadequate for K. McAfee to protect his social security funds, even if the Court had seized them with jurisdiction and a proper order. Therefore, mandamus relief is appropriate in this matter. II. The Probate Court does not have jurisdiction to act without a pending cause of action. According to arguments of the Foltyns and the Estate's counsel, the only reason they sought to keep the temporary injunction in place was due to alleged 5 See In re Pierce, 2012 WL 3525638, at *4 (discussing the benefits of mandamus relief when there are other claims raised which would be rendered moot if not reviewed by mandamus). PAGE 16 community property claims the Estate may have against K. McAfee. 6 But without any live pleadings on file, the Probate Court lacks jurisdiction to take any action in this case, including the issuance of injunctive relief or taking control of an individual's assets to hold in the registry of the Court for the benefit of someone else. Texas Estates Code section 402.001 states that after the inventory has been approved in an independent administration, the Probate Court can take no further action of any nature unless specifically provided for by the Texas Estates Code. See also State v. Traylor, 374 S.W.2d 203, 204 (Tex. 1963) (probate court has only that jurisdiction conferred upon it by the Probate Code). The probate court is then vested with substantial "potential jurisdiction" to hear almost any issue involving the estate or the personal representative, even matters related to the settlement and partition of an estate. Cunningham v. Parkdale Bank, 660 S.W.2d 810, 812 (Tex. 1983); TEX. ESTATES CODE§§ 32.001, 31.001, 31.002. The probate court can even have the power to determine community property claims, characterize separate and community property interests, and order the surrender of property held by a party to the suit. Smith v. Lanier, 998 S.W.2d 324, 332, 336 (Tex. App.-Austin 1999, pet. denied) (probate 6 Tab 8, at p. 3, Ins. 20-25; at p. 4, Ins. 1-7; at p. 5, Ins. 5-l 0; at p. 5, Ins. 14-19; at p. 8, Ins. 2-4; at p. 11, Ins. 4-16; at p. 17, Ins. 18-25; at p. 18, Ins. 1- 24; Tab 12, at p. 3, Ins. 13-22; at p. 6, Ins. 10-25; at p. 7, Ins. 1-6; at p. 8, Ins. 16-25; at p. 9, Ins. 1-7; at p. 9, Ins. 21-25; at p. 10, Ins. 1-21; at p. 12, Ins. 1-25; at p. 13, Ins. 1-6; at p. 15, Ins. 4-25; at p. 16, ln. 1; Tab 15, at p. 10, Ins. 1-21; at p. 10, Ins. 7-24; at p. 11, Ins. 10-16; at p. 14, Ins. 16-25. PAGE17 court can issue injunction against survivor's separate property pending declaratory judgment action); Lucikv. Taylor, 596 S.W.2d 514,516 (Tex. 1980) (probate court can issue injunction over estate property pending contest to administration). But there is no authority for a court to act on estate issues sua sponte. A probate court's potential jurisdiction is "activated and becomes actual jurisdiction" only after the filing of a petition, the subject matter of which is within the jurisdiction of the court. Cunningham, 660 S.W.2d at 812 (probate court did not have jurisdiction to enter judgment against independent administrator based solely on substance of final account; pleadings required). Just as in any other type case, a party must invoke a probate court's jurisdiction by filing an application, petition, motion, action, claim, cause of action, or request of some nature. See TEX. ESTATES CODE§§ 31.001, 31.002. Pleadings create the foundation of due process: they defiJ!.e the issues and give the opposing party information sufficient to enable him to prepare a defense. Cunningham, 660 S.W.2d at 812-13 (citing Murray v. 0 & A Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982); Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982)). There is no exception simply because we are in probate court: "The Texas Rules of Civil Procedure govern proceedings in probate matters except in those instances in which a specific provision has been made to the contrary. Tex.R.Civ.P. 2. In Texas, '[a] civil suit in the district or county court shall be commenced by a petition filed in the office ofthe clerk.' Tex.R.Civ.P. 22." ld. PAGE18  The Estate has no live pleadings in this case asking the Probate Court to do anything or decide any matter. In fact, the Estate has never even asked the Court to determine a marital property claim; it has only alluded throughout the hearings that there may be claims. The Probate Court cannot provide the Estate any relief to which it has not requested in writing. !d. at 813 ("a party may not be granted relief in the absence of pleadings to support that relief'). This is because an independent administration is managed at the direction of the personal representative, not by the probate court. The Texas Supreme Court has explained that a probate court cannot take on duties of the independent executor. In State v. Traylor, the independent executors asked the probate court to order a partition and distribution, giving the decedent's widow a compromised community property distribution, which they had chosen not to trace for economic reasons, and which was opposed by the other beneficiary. 374 S.W.2d 203 (Tex. 1963). While a probate court has statutory authority to order a partition and distribution, the executors were essentially asking for the court's stamp of approval on their decision to not trace the community property interest, instead of just approving the widow's claim (and facing suit) or having the widow's claim established by judgment. !d. The Supreme Court said this was not something the Court could do, even at an executor's request, and the executors must act on the claim before coming to the Court for a partition and distribution. PAGE 19  In the present case, the independent administrator must first act on its alleged claim by filing a pleading seeking relief. The Probate Court has no power to seize or continue an injunction over K. McAfee's assets until after the Estate has acted. The fact that the Estate has no pleadings on file was argued by Storer multiple times: 1. January 8, 2015 hearing:" ... there's nothing to intervene in, because there is no pending action." Tab 7, at p. 10, Ins. 7-12. 2. January 22, 2015 hearing: " ... I can't even learn what the base lawsuit is that the Temporary Injunction was filed for." Tab 8, at p. 7, Ins. 1-5. 3. May 14, 2015 hearing: "this Temporary Injunction that everyone IS talking about and relying on, you know has been going on for a very long time without a cause of action, without a trial date. It's basically an agreement for everyone to have a standstill. And that's fine. We intend to honor it. But it's time to separate these parties." Tab 15, at p. 7, Ins. 3-5. With no pleadings on file, the injunction should be dissolved entirely. It is however, even more serious that a portion ofK. McAfee's social security benefits were ordered to be turned over to the Clerk for the use and benefit of the Estate of Janet Foltyn McAfee. The Probate Court's taking of the $34,898.58 from K. PAGE 20 McAfee's social security account IS essentially a further injunction with no pleadings on file and no jurisdiction. Therefore, the temporary injunction should be dissolved and the May 18, 2015 Order should be set aside for lack of jurisdiction. III. Without a pending cause of action, the June 8, 2011 temporary injunction and the May 18, 2015 Order are void. The lack of pleadings makes the temporary injunction void in its entirety, as well as the May 18, 2015 Order that directs Woodforest to turn over $34,898.58 to the registry of the court. The parties can enter an agreement outside of Court to freeze the remaining assets, but the temporary injunction, especially in this new form, has been taken too far. "A temporary injunction's purpose is to preserve the status quo of the litigation's subject matter pending a trial on the merits." Butnaru v. Ford Motor Company, 84 S.W.3d 198, 204 (Tex. 2002). "To obtain a temporary injunction, the applicant must plead and prove three specific elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Id. The Estate has no cause of action on file against K. McAfee, and, even if it did, there is no probable right to the relief sought because the facts are what they are. The evidence that has already been considered will always yield the same result-that all of the money in the Woodforest account is federally protected social security proceeds. PAGE 21  Texas Rule of Civil Procedure 683 further states that "every order granting a temporary injunction shall include an order setting the cause for trial on the merits with respect to the ultimate relief sought." This requirement is mandatory and must be strictly followed, or else the order is subject to being declared void and dissolved. Qwest Commc 'ns Corp., 24 S.W.3d at 337 (Tex. 2000); InterFirst Bank San Felipe, 715 S.W.2d at 641 (Tex. 1986). An error of such kind is so critical that it has been held by many Texas appellate courts as "fatally defective and void, whether specifically raised by point of error or not." 7 The Estate sought a temporary restraining order in the estate administration cause (396,935) to preserve its community property interests and anticipated recovery from the wrongful death proceedings pending against K. McAfee in the ancillary cause (396,935-401). Tab 18. The Estate's Application states, "the nature of the lawsuit is Probate, with an additional wrongful death suit pending." Tab 18, at p. 2, ~5. The June 8, 2011 Agreed Order for Temporary Injunction also states: 7 EOG Res., Inc. v. Gutierrez, 75 S.W.3d 50, 52-53 (Tex. App.-San Antonio 2002); Evans v. C. Woods, Inc., 34 S.W.3d 581, 582-83 (Tex. App.-Tyler 1999, no pet.); Big D Props., Inc. v. Foster, 2 S.W.3d 21, 23 (Tex. App.-Fort Worth 1999, no pet.); 360 Degree Commc'ns Co. v. Grundman, 937 S.W.2d 574, 575 (Tex. App.-Texarkana 1996, no writ). PAGE22  "this Temporary Injunction Order ... shall continue in force and effect until the Court makes a determination of what property belongs to the Estate or the Court renders a full and final judgment is in the pending wrongful death suit associated with this matter, whichever is later, or by further order of this Court." Tab 1, at p. 9 of 10. A full and final judgment was entered in the wrongful death suit on March 21, 2014. Tab 2. The Court, however, has made clear that the injunction remains in effect in the estate administration until a determination of what property belongs to the Estate has occurred. Tab 17, last paragraph. Whether the temporary injunction has ever been effective in the past may be a moot issue. The temporary injunction was filed only in the estate administration, where no pleadings were ever filed. On January 22, 2015, the parties argued over whether the order on the garnishment proceeding (395,835-401) should require a release of the temporary injunction in the estate administration. Tab 8, at p. 3, Ins. 20-25; at p. 4, Ins. 1-7; at p. 8, Ins. 2-4; at p. 9, Ins. 14-17; at p. 11, Ins. 4-16. Storer argued to release the temporary injunction: "The other thing, Judge, is I don't even think there is a Temporary Injunction in place. I think everyone has honored it because everyone understood what the intent was of the parties and the intent of the Court but I can't even learn what the base lawsuit is that the Temporary Injunction was filed for. It's my understanding also that there is no ending to the Temporary Injunction and the only way one can be valid is if there is a final trial date that says on this date this Temporary Injunction ends and PAGE 23  will either go away or tum into a Permanent Injunction. So I believe there is not even a Temporary Injunction in place. I will go along with what's been going on but we were here two weeks ago and the issue garnishment was decided. That's over. The only thing that needed to be added was to make the payment to Mr. Blumrosen and/or his client. That's been done. And so this is the Proposed Order that covers both parties and both banks in the garnishment proceeding." Tab. 8, at p. 6, ln. 25; at p. 7, Ins. 1-16; at p. 14, Ins. 15-19. Regardless of how the estate administration and wrongful death proceedings were intertwined, today there are clearly no actions being pursued in any cause against K. McAfee. This makes the temporary injunction fatally void and it should be dissolved. TEX. R. CIV. P. 683. Additionally, "Probate" is not a cause of action. Probate is a general description for all matters or proceedings that relate to a decedent's estate. TEX. ESTATES CODE§ 22.029. The Texas Supreme Court has clarified, "the issue in determining whether an applicant has met the first qualification for a temporary writ of injunction is not whether the prayer seeking the writ and the ultimate cause of action is 'related,' but whether the applicant has a cause of action at all." Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (per curiam) (considering whether applicant's live pleadings supported the temporary injunction). With no cause of action at all on PAGE 24 file, there is no matter to set for trial and the injunction in whatever form it has now taken, must be dissolved. And if there were a cause of action on file, the reason for strict compliance m setting a trial date "is to prevent the temporary injunction from becoming effectively permanent, without a trial having occurred." Eastern Energy, Inc. v. SBY P'ship, 750 S.W.2d 5, 6 (Tex. App.-Houston [1st Dist.] 1988). Such would be contrary to the purpose and procedure of obtaining a temporary injunction, yet this is exactly what has happened in this case, because a determination of all Estate property may never occur. Therefore, the temporary injunction should be dissolved and the May 18, 2015 Order should be set aside for being void. IV. Collateral Estoppel and Res Judicata bar re-tracing of the Woodforest account. Even if the Probate Court were to obtain jurisdiction to enjoin or take control over K. McAfee's assets, the Woodforest account cannot be subject to any further authority of the Probate Court because the funds have already been traced and found to be solely K. McAfee's social security benefits. Tab 9; Tab 14, at p. 6-8. Since the Estate can have no claim against K. McAfee's social security benefits, all of such assets must be released to K. McAfee. The well-known case of Barr v. Resolution Trust Corp. describes "res judicata" as a generic term for two types of conclusive effects given to final PAGE 25 judgments: res judicata precludes relitigation of claims, and collateral estoppel prevents relitigation of particular issues. 837 S.W.2d 627, 628 (Tex. 1992). This mandamus involves both. The Estate would like the Court to believe that the garnishment proceedings were completely separate from the Estate's purported community property claims in the estate administration. Tab 12, at p. 8, Ins. 16-25; Tab15, at p. 11, Ins. 22-25; at p. 12, Ins. 1-3. This, however, is not accurate. First, the issue of tracing the Woodforest account was actually litigated in the garnishment proceeding (collateral estoppel). Second, the Estate should have brought its claims against Kenneth McAfee for the funds in the Woodforest account during the garnishment proceedings (res judicata). 1. Collateral Estoppel The doctrine of collateral estoppel or issue preclusion is designed to promote judicial efficiency, protect parties from multiple lawsuits, and prevent inconsistent judgments by precluding the relitigation of issues a party previously litigated and lost. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994); Quinney Elec., Inc. v. Kondas Entm 't, Inc., 988 S.W.2d 212, 213 (Tex. 1999) (per curiam). "A party seeking to assert the bar of collateral estoppel must establish that ( 1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first PAGE 26 action; and (3) the parties were cast as adversaries in the first action." Sysco Food Servs., Inc., 890 S.W.2d at 801. "Fairness" may also be considered, but it is narrowly applied in only the most unique circumstances. !d. at 805. Collateral estoppel can apply even if the causes of action are different in the first and second proceedings. Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 577 (Tex. 2001) (criminal defendant was convicted of fleeing and attempting to elude a police officer; because the issue of whether she faced imminent harm was a fact that was litigated in her criminal trial, she was barred from bringing a civil action for assault against the officer who tried to stop her). "If a cause of action in the second lawsuit involves an element already decided in the first lawsuit, that cause of action is barred" if the issue decided in the first action was actually litigated, essential to that lawsuit's judgment, and is identical to the issue in the pending action. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 521 (Tex. 1998). Element 1: the facts sought to be litigated in the second action are identical to the facts litigated in the first action "Collateral estoppel applies when an issue decided in the first action is actually litigated." Tex. Dep't of Pub. Safety, 44 S.W.3d at 579. "Actually litigated" means the issue was properly raised (by pleadings), submitted for determination, and determined. Johnson & Higgins of Tex., Inc., 962 S.W.2d at 521. The issues must be identical and must have been fully and fairly litigated. PAGE 27 State & Cty. Mut. Fire Ins. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001); Tex. Dep't ofPub. Safety, 44 S.W.3d at 579. What the Estate is seeking now is identical to what was before the Court in the garnishment proceedings, a tracing of the Woodforest account. The tracing that was necessary to establish protection in the garnishment proceedings is the very same tracing that would be necessary to prove the Woodforest account is solely K. McAfee's social security benefits. Tex. Dep 't of Pub. Safety, 44 S.W.3d at 577 (collateral estoppel applied because same facts were necessary to prove first and second claims). In the garnishment proceedings, Storer sought to quash two writs the Foltyns had obtained, one against a 401(k) Savings Plan and one against a social security account. Tab 4. Both accounts needed to be established as exempt accounts in order to quash the writs. While the funds in the 401(k) were protected merely by being in a tax-deferred retirement account, 8 the social security funds were held in an ordinary checking account and Storer had to show that every penny in the Woodforest account was attributed to his social security benefits. Tab 4, at rs 22- 25 (regarding need to trace comingling of social security benefits). Had there been 8 TEX. PROP. CODE§ 42.0021(a); see also Tab 4, at p. 13, footnote 12: Unlike with social security benefits, it is the account that is exempt; the source of the funds is irrelevant. Lozano v. Lozano, 975 S.W.2d 63, 68 (Tex. App.-Houston [14th Dist.] 1998, pet. denied). PAGE 28 any funds that were not social security benefits, those funds would have been subject to garnishment. Tab 4, at 'if 23. The nature of the Woodforest funds was plead in Storer's Motion to Quash, which also provided copies of the bank statements, and an account detail sheet showing the source of all deposits and withdrawals. Tab 4, at Exhibits A, B. Storer agreed the tracing rules in his Motion, and identified the funds all as coming exclusively from the Social Security Administration. Tab 4, at 'if 25. At the first hearing on January 8, 2015, the Foltyns did not challenge the protected status of a person's 401(k) or social security benefits, but argued that they did not have sufficient information to determine the character of the funds at issue due to outstanding discovery requests. Tab 7, at p. 4, lns. 1-9; at p. 5, lns. 2- 17; at p. 6, Ins. 9-20; at p. 8, Ins. 12-25; at p. 9, Ins. 1-24. The Probate Court reset the matter for two weeks to specifically allow time for exchanging information. Tab 7, at p. 27, Ins. 5-6. On January 22, 2015, the parties and the Estate returned. Tab 8. Again, quashing the writs on the two accounts was never challenged. Tab 8; at p. 3, Ins. 5-7. However, because Storer sought to include language in the proposed order to also release the temporary injunction as to the two accounts, the Foltyns and the Estate resisted, in order to preserve the Estate's potential community property claims against the 401(k). Tab 8, at p. 3, Ins. 20-25 through at p. 4, Ins. 1-7; at p. PAGE29 5, Ins. 5-10; at p. 5, Ins. 14-19; at p. 8, Ins. 2-4; at p. 9, Ins. 14-15; at p. 11, Ins. 4- 16; at p. 14, Ins. 15-19; at p. 17, Ins. 18-25, at p. 18, Ins. 1-24. At both hearings, no one challenged the character of the funds that made up the Woodforest social security account (see Tab 7 and Tab 8); this was not done until months after the Court signed the January 27, 2015 Order. See Tab 12 and Tab 15. Had any contrary evidence been offered, Storer could have orally argued his tracing evidence that was filed in his Motion to Quash Writs of Garnishment because that was the very subject matter of that hearing, to prove that all funds in the Woodforest account were social security benefits. Tab 7, at p. 5, Ins. 12-15. But the Foltyns specifically said that was not necessary (Tab 7, at p. 5, Ins. 16-17) and the Estate raised no issues as to Storer's accounting (Tab 8, at p. 18, Ins. 13- 23). Based upon the patties' pleadings and arguments, the Probate Court detetmined that the Woodforest account contained only K. McAfee's social security benefits and signed the January 27, 2015 Order: "On this day came to be considered the Motion to Quash Writs of Garnishment filed by Charles Storer, Power of Attorney for Kenneth Cooper McAfee. After review and consideration of said Motion, the evidence, the responses, and the arguments of counsel, the Court finds the following: PAGE 30  5. The Woodforest account ending in 404 holds, exclusively, social security benefit proceeds of Kenneth C. McAfee which benefits are exempt from garnishment under 42 U.S.C. 407. 42 U.S.C. 407 provides an absolute exemption and there are no statutory exceptions to same. Because the Woodforest account ending in 404 contains only funds exempted from garnishment, the writ directed at Woodforest as to Kenneth McAfee's account ending in 404 should be quashed." Tab9. The Estate now questions the characterization of two deposits that were made into the Woodforest social security account and that were identically withdrawn from the account days later, arguing these might be deposits of community property and withdrawals of social security funds that would give the Estate a one-half interest in the deposits of community property depending on what method of tracing is used (first in/first out, or last in/first out). Tab 12, at p. 3, Ins. 13-22; at p. 6, Ins. 14-21; at p. 7, Ins. 1-6; at p. 7, Ins 14-21; at p. 8, Ins. 19-25; at p. 9, Ins. 7-9; at p. 9, Ins. 21-25; at p. 10, Ins. 1-21; at p. 12, Ins. 1-25; at p. 13, Ins. 1- 6; at p. 15, Ins. 4-25; at p. 16, ln.1; Tab 15, at p. 10, Ins. 6-24; at p. 11, Ins. 1-16; at p. 14, Ins. 18-25. This is a tracing issue that has already been litigated and determined by the Court. Tab 9 and Tab 12 at p. 7, Ins. 14-22; at p. 11, Ins. 21-25; Tab 15, at p. 4, Ins. 2-19; at p. 5, Ins. 1-9; at p. 5, Ins. 17-19; at p. 6, Ins. 4-10; at p. 7, Ins. 17-25; at p. 7, Ins. 17-25; at p. 8, Ins. 1-25; at p. 9, Ins. 1-17; at p. 13, lns. 13-17; at p. 15, Ins. 1-9; at p. 16, Ins. 3-25; at p. 17, lns. 1-14. PAGE 31  Storer does not dispute the 401(k) is funded with some community property. But the social security benefits are federally protected separate property, so there is nothing left to fight over. 42 U.S.C. 407; Tab 15, at p. 15, Ins. 10-14; at p. 15, Ins. 22-25; at p. 16, Ins. 1-25; at p. 17, Ins. 1-17. To have this fight again (to trace the Woodforest social security account) would require an identical trial to the one already had, with the exact same tracing evidence and burden of proof (Sysco Food Servs., Inc., 890 S.W.2d at 802 (in considering collateral estoppel, similarity of each action's burden of proof was a factor));it would just be for a different purpose, but with the same result as to the Woodforest assets. Although Storer's tracing evidence was not challenged in the garnishment proceeding, that does not mean the issue was not actually litigated. "Actually litigated" does not require a contested proceeding, but merely that the issue was pled, considered and decided. Johnson & Higgins ofTex., Inc., 962 S.W.2d at 521. These criteria have all been met. The transcripts show that it was put before the Court by all counsel, repeatedly, and that there was no issue that the Woodforest account contained anything other thanK. McAfee's social security benefits. The Estate specifically said, "the two issues, which one we could see, the Woodforest, is that's all SSI money. My client has no claim to that. We can see that. As long as that's an accurate statement, it's all SSI." Tab 8, at p. 18, Ins. 13-25, at p. 19, line 1; Tab 4, Exhibit A & B. PAGE 32  In Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., the Supreme Court considered "fully and fairly litigated" and rejected a party's argument that they had no real incentive in the first action to develop their claims in the second action. 962 S.W.2d 507, 525 (Tex. 1998). When the plaintiff lost a significant portion of his profits in oil he was transporting across the Atlantic, he used his insurance agent as a witness to recover from another insurance company based on agreements that had been discussed between multiple insurance companies to insure the cargo. Id. at 511-513. As to at least one claim, the Supreme Court found that the testimony of the plaintiffs insurance agent supported the court's detennination that there were no insurance agreements for the extra loss coverage the plaintiff was seeking. I d. at 524. The plaintiff was later barred from suing his own insurance company because the issue had already been decided that there were no valid insurance agreements for the extra loss coverage. Id. The plaintiff argued that had he known he would be precluded from suing his own insurance company, he would have further developed the testimony to prove his insurance agent represented to him that he was covered. Id. at 525. The Supreme Court said he had missed his chance because he had every incentive in the first suit to establish an agreement since his claims in the first suit depended on that agreement. Id. Likewise, the Estate's purported community property claims to the Woodforest account depend 100% on what type funds are in the account. The PAGE 33 tracing was just as essential to the garnishment proceeding as it is to the Estate's purported community property claims. The Estate's agreement and/or inaction when the issue of tracing was before the Court precludes the Estate's later developed arguments. Additionally, in Rexrode v. Bazar, collateral estoppel was applied even in a situation where no evidence was ever admitted. 937 S.W.2d 614 (Tex. App.- Amarillo 1997, no writ). A plaintiff sued a defendant for negligence and also sued his own insurance company under the uninsured/underinsured motorist provision of his auto insurance policy. Id. at 615-16. When the insurance company failed to answer requests for admissions, the plaintiff nonsuited his case against the defendant and went to trial against the insurance company. ld. at 616. At trial, the plaintiff offered only the deemed admissions. ld. at 617-18. The insurance company was granted leave to prepare responses to the requests for admissions. ld. at 618. The plaintiff rested. ld. The insurance company prepared responses, and the Court withdrew the deemed admissions. Jd. The Court then issued a directed verdict against the plaintiff, having rested with no evidence. Jd. The plaintiff was later bmred from bringing suit against the original defendant because he had "failed to prevent the issue ... from being submitted for determination and determined adversely to him. That being so, the issue was "actually litigated" in the first suit." ld. at 620. That is exactly what has happened in this case-the PAGE 34 Estate's agreement and/or inaction failed to prevent the tracing issue from being submitted for determination and determined adversely to their current purported claims, if any. The opportunity to fully and fairly litigate the issue of tracing existed, but the Estate chose not to act. This opportunity is all that is required. See Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex. 1990) (collateral estoppel applies when the party against whom it is asserted had a full and fair opportunity to litigate the issue in the prior suit). Because the issue of tracing the Woodforest social security account was actually litigated, fully and fairly, and is identical to the claims the Estate makes now, the first element of collateral estoppel has been met. Element 2: those facts were essential to the judgment in the first action When the Probate Court examined whether or not the Woodforest social security account should be exempt from garnishment, the sole issue was the nature of the funds in the account. It may be redundant to keep saying that it was already established and unopposed that the funds were 100% K. McAfee's social security benefits. Tab 9 and Tab 12 at p. 7, Ins. 14-22; at p. 11, Ins. 21-25; Tab 15, at p. 4, Ins. 2-19; at p. 5, Ins. 1-9; at p. 5, Ins. 17-19; at p. 6, Ins. 4-10; at p. 7, Ins. 17-25; at p. 7, Ins. 17-25; atp. 8, Ins. 1-25; atp. 9, Ins. 1-17; atp. 13, Ins. 13-17; atp. 15, Ins. 1-9; at p. 16, Ins. 3-25; at p. 17, Ins. 1-14. But there was simply no other purpose to the garnishment proceeding in regards to the Woodforest account other than to PAGE 35 trace the funds, which is exactly what the Estate seeks to do again. See above, Johnson & Higgins of Tex., Inc., 962 S.W.2d at 525 (establishment of insurance agreement was essential to first claim against 3rd party insurance company; plaintiff could not bring action against his own insurance company because court already found there was no insurance agreement). Because the issue of tracing was essential to the Probate Court's January 27, 2015 Order, the second element of collateral estoppel has been met. Element 3: the parties were cast as adversaries in the first action All parties involved today also participated in the garnishment proceeding that resulted in the January 27, 2015 Order. The parties in the estate administration proceedings are K. McAfee, the Estate, and the Foltyns, individually, who are participating herein as interested parties. Tab 18. The garnishment proceeding did not originally involve the Estate; it involved only K. McAfee and the Foltyns, individually, who sought to recover on their wrongful death judgment. Tab 3. However, the Estate made a voluntary appearance in the garnishment proceeding by filing a Notice to Court in which the Estate objected to Storer's Motion to Quash and claimed an interest in the two accounts Storer sought to protect from garnishment. Tab 5; Tab 7, at p. 9, Ins. 1-8. The Estate further participated in the garnishment hearings, not challenging the PAGE 36 quashing of the writs, but alluding to their community property claims that might exist post-garnishment. Tab 7, at p. 8, Ins. 15-25; at p. 9, Ins. 1-2; Tab 8, at p. 2; at p. 5, Ins. 5-10, Ins. 16-18; at p. 12, Ins. 10-17; at p. 17, Ins. 21-24; at p. 18, Ins. 18- 23. Regardless of what happened thereafter, it cannot be disputed that all parties involved today actually participated in the garnishment proceedings that (1) considered the tracing of the Woodforest social security account and (2) resulted in the January 27, 2015 Order. 9 Because the same parties were cast as adversaries in the garnishment proceeding, the third element of collateral estoppel has been met. Consideration of Fairness The nature of the wrongful death proceeding is not a factor the court can consider in deciding whether to apply collateral estoppel. Fairness factors involve unique procedural and evidentiary burdens that defeat the design of collateral estoppel, and that are not caused by the party seeking to avoid the preclusive effect 9 Nevertheless, collateral estoppel does not even require direct participation by the Estate, only that the Estate be in privity with the Foltyns. Tex. Dep 't of Pub. Safety, 44 S.W.3d at 577; Sysco Food Servs., Inc., 890 S.W.2d at 801; Eagle Props., Ltd., 807 S.W.2d at 721. Privity cannot be disputed because the Estate and the Foltyns both share interests in the Woodforest account that are directly affected by its tracing. See Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363 (Tex. 1971). They are merely acting in two different capacities, individually and as beneficiaries of the Estate, to recover the same interests under different theories of recovery. See Robbins v. HNG Oil Co., 878 S.W.2d 351, 357-58 (Tex. App -Beaumont 1994, writ dism'd w.o.j.) (Robbins as attorney-in-fact in second suit was certainly in privity with Robbins, individually, in first suit). PAGE 37 of a prior judgment. See Sysco Food Servs., Inc., 890 S.W.2d at 804-05 (party was prevented from filing all of their claims in one suit by case law that has subsequently been overruled by statute; procedural predicament is not of their own making; then holding is narrow, given the unusual procedural posture of the case); Phillips v. Allums, 882 S.W.2d 71, 75 (Tex. App.-Houston [14th Dist.] 1994, writ denied) (because party was nonsuited, party was deprived of the opportunity to litigate; "Mary Carter" agreements violate public policy). None of these type .c: 1actors • are present m th"IS case. 10 2. Res Judicata Res judicata precludes relitigation of claims that have been finally adjudicated, and claims that arise out of the same subject matter that could have been litigated in the prior suit. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628, 631 (Tex. 1992). The elements of res judicata are: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action." Amstadt v. US. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996); see also Houtex Ready Mix Concrete & Materials v. 10 See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 330-31 (1979) (noting when offensive collateral estoppel may be unfair); Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 7 (Tex. 1986) (holding when fairness factors are applicable); Goldstein v. Comm 'nfor Lawyer Discipline, 109 S.W.3d 810, 813 (Tex. App.-Dallas 2003, pet. denied) (observing the factors when offensive collateral estoppel may be applied); Tankersley v. Durish, 855 S.W.2d 241, 245-46 (Tex. App.- Austin 1993, writ denied) (noting applicable fairness factors). PAGE 38 Eagle Canst. & Envtl. Servs., L.P., 226 S.W.3d 514, 519 (Tex. App.-Houston [1st Dist.] 2006, no pet.). Element 1: there is a final judgment on the merits The January 27, 2015 Order is a final judgment on the merits of tracing the Woodforest social security account. Tab 15, at p. 6, Ins. 4-10. It specifically and correctly states, "the Woodforest account ending in 404 holds, exclusively, social security benefit proceeds of Kenneth C. McAfee." Tab 9. The wrongful death and estate administration claims, if any, are and/or will be separate actions. In the wrongful death action, a final judgment was entered against K. McAfee on March 21, 2014, that disposed of all parties and was appealable. Tab 2. The Foltyns' Application for Writ of Garnishment was initiated in the wrongful death proceeding on October 9, 2014 to collect on the judgment. Tab 3. The Probate Court had jurisdiction over the garnishment proceedings because there were garnishment pleadings and notices (Tab 3), not because the wrongful death action was on-going. Thereafter, Storer's Motion to Quash Writs of Garnishment was filed in the garnishment proceeding and the Probate Court properly acted on those pleadings after two hearings on the merits. Tab 9. When the Probate Court signed the January 27, 2015 Order Partially Granting Motion to Quash Writs of Garnishment, there were no more issues pending in the garnishment proceeding, however the Court did direct the PAGE 39 temporary injunction to be lifted as to the GMS accounts in favor of the Foltyns, even though the temporary injunction was in a separate proceeding. Tab 9, at p. 3. (The remaining accounts were still subject to the temporary injunction in the separate estate administration cause, just as they were before the Foltyns' Application for Writ of Garnishment was filed.) On March 16, 2015, the Probate Court signed its Order Partially Releasing Temporary Injunction in regards to the GMS accounts in favor of the Foltyns, (Tab 9), and the January 27, 2015 became final as it disposed of all issues and parties in the garnishment proceeding. This January 27, 2015 judgment was never appealed, and cannot be appealed now. The judgment is also not interlocutory because "a probate order is final if it adjudicates a substantial right and disposes of all issues in the phase of the proceeding for which is was brought, even though multiple judgments final for purposes of appeal can be rendered on certain discrete issues." Crowson v. Wakeham, 897 S.W.2d 779, 781-82 (Tex. 1995); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001); Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex. App.-Austin 2000, pet. denied) ("An order rendered in a probate proceeding need not finally dispose of the entire proceeding ... A probate proceeding consists of a continuing series of events, in which the probate court may make decisions at various points in the administration of the estate on which later decisions will be based."). Although the Estate Independent Administration is still open (without PAGE40 Court supervision), the January 27, 2015 Order resolved all issues and pleadings in the garnishment proceeding, in which it participated. Therefore, even if the garnishment proceeding had been tied to the Estate administration, which it was not, this phase of the garnishment proceeding has been disposed of and is final, even though the Estate independent administration may continue. Because there is a final judgment on the merits of tracing the Woodforest account, the first element of res judicata has been met. Element 2: same parties As discussed above, the same parties involved today actually participated in the garnishment proceedings that resulted in the January 27, 2015 Order, and the Estate is "in privity" with the Foltyns. See collateral estoppel, element 3 above. Because the same parties are involved in both proceedings, the second element of re judicata has been met. Element 3: same claims Res judicata provides broader relief than collateral estoppel since it allows preclusion of claims that not only were adjudicated, but claims that could have been litigated in the prior suit. Rexrode, 937 S.W.2d at 616 ("unlike the broader res judicata doctrine, collateral estoppel analysis does not focus on what could have been litigated, but what was actually litigated"). PAGE 41  "A subsequent suit will be barred if it arises out of the same subject matter of a previous suit and which through the exercise of diligence, could have been litigated in a prior suit." Barr, 837 S.W.2d at 631. "A determination of what constitutes the subject matter of a suit necessarily requires an examination of the factual basis of the claim or claims in the prior litigation. It requires an analysis of the factual matters that make up the gist of the complaint, without regard to the form of action. Any cause of action which arises out of those same facts should, if practicable, be litigated in the same lawsuit." !d. at 630. The Barr standard "is substantially similar to the rule of compulsory counterclaims embodied in the rules of civil procedure. A party defending a claim must bring as a counterclaim any claim that "arises out of the transaction or occurrence that is the subject matter of the opposing party's claim." !d.; TEX. R. CIV. P. 97. While the issue of tracing was actually litigated on more than one occasion, the Estate still has never filed its community property claims. The garnishment proceeding was the proper time to have brought such claims. As discussed above, the issue in the garnishment proceeding was to trace the funds in the Woodforest account as solely K. McAfee's social security benefits in order to protect the entire account from garnishment. The Estate's purported claim seeks to re-trace the funds in the Woodforest account to see if the funds are all K. McAfee's social PAGE42 security benefits, or if the funds have been comingled with community property. While the purpose for tracing may be different, the issues, facts and evidence that make up both claims are identical-what is the character of the funds in the Woodforest account? The issue of the Estate's potential community property claims was known and discussed in the garnishment proceedings. Tab 7, at p. 8, lns. 15-25; Tab 8, at p. 4, lns. 1-7; at p. 5, lns. 5-19; at p. 8, lns. 2-4; at p. 9, lns. 14-19; at p. 11, Ins. 4- 16; at p. 12, lns. 10-25; at p. 13, lns. 1-11; at p. 14, lns. 15-19; at p. 17, Ins. 18-25; at p. 18, Ins. 1-24. The Estate argued for the protection of its community property claims against the 401(k) account, yet made no mention of potential claims to the social security account. Tab 8. Knowing that tracing in the garnishment proceeding directly affected the Estate's community property interests, the Estate had the burden to bring its claim at the time the issue of tracing was first before the Court. It is not enough to merely say they want to litigate the claims in the future. Because the same claims that the Estate alleges now could have been litigated in the prior suit, the third element of res judicata has been met. V. The Estate's claims cannot be satisfied from the Woodforest social security account and continued obstruction of these funds violates due process and constitutes an abuse of discretion. K. McAfee's social security benefits are his separate, federally protected property that cannot be used to satisfy the Estate's alleged community property PAGE43 claims. 42 U.S.C. 407 ("none of the moneys paid or payable ... shall be subject to execution, levy, attachment, garnishment, or other legal process .... "). Storer has explained this protection provided by the Social Security Act, and its lack of exceptions, in great detail. 11 The F oltyns and the Estate do not disagree that any funds that are social security benefits are protected. See Tab 7, at p. 4, Ins. 1-6; Tab 8, at p. 18, Ins. 13- 18;seeTab 12,atp.3,Ins.15-17;atp.9,lns.1-7;atp.15,lns.ll-13;atp.17,Ins. 6-10; see Tab 15, at p. 14, Ins. 17-19; at p. 24, Ins. 16-18. Since the nature ofthe funds in the Woodforest account have already been traced, and found to be social security benefits, there is nothing left to fight over. If the Estate has claims, they can only be satisfied from other accounts made up of community property assets of Janet and K. McAfee, not from the Woodforest account that holds only K. McAfee's social security benefits. Tab 15, at p. 9, Ins. 18-22; at p. 13, Ins. 1-17; at p. 13, Ins. 2-25; at p. 14, lns.1-15; at p. 17, Ins. 8-11. The Court's continued obstruction of these funds violates due process rights and the supremacy clause. Dionne v. Bouley, 757 F.2d 1344, 1354 (1st Cir. 1985) (social security account was exempt from attachment, procedural issues that prevented access to the account violated due process right and perhaps even the 11 See Storer's Motion to Quash Writs of Garnishment, Tab 4, ~'s 11-29; Tab 7, at p. 5, Ins. 2-17; at p. 11, Ins. 2-4; at p. 18, Ins. 9-23; Tab 8, at p. 5, Ins. 20-25; at p. 6, Ins. 1-24; Tab 14, at p. 9; Tab 12 and Tab 15. PAGE44 supremacy clause.) These violations are further reason why the May 18, 2015 Order should be set aside and the temporary injunction dissolved. Last, the Probate Court has abused its discretion by failing to correctly analyze and apply the law in regards to Storer's arguments of lack of jurisdiction, no pleadings being on file, and no cause being set for trial. See In re Pierce, No. 13-12-00125-CV, 2012 WL 3525638, at *2 (Tex. App.-Corpus Christi Aug. 10, 2012, orig. proceeding) (mem. op.) (citing In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding)) (court abuses its discretion "if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law."). PRAYER For the reasons stated above, Relator, respectfully requests that the Court grant his Petition for Writ of Mandamus; direct the Honorable Loyd Wright to set aside the May 18, 2015 Order on First Amended Motion for Reconsideration of March 16, 2015, Order Partially Releasing Temporary Injunction, First Amended Motion for Entry of Order Releasing Social Security Proceeds from Injunction and Motion for Sanction; direct the Honorable Loyd Wright to dissolve the June 8, 2011 Agreed Order for Temporary Injunction, and grant Relator such other relief, at law or in equity, to which Relator may be justly entitled. PAGE45 Respectfully Submitted, ANDERSON PFEIFFER, PC Esther Anderson SBN: 00792332 Robert Teir (of Counsel) SBN: 00797940 845 FM 517 West, Suite 200 Dickinson, Texas 77539 Telephone: (281) 488-6535 Facsimile: (281) 488-0625 Email: esther@probateguardianship.com Attorneys for Relator, Charles Storer, Power of Attorney for Kenneth Cooper McAfee PAGE46  CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the forgoing Petition for Writ of Mandamus was delivered via the electronic service provider and/or certified mail, return receipt requested on this 1st day of October, 2015, to all parties/and or counsel of record: cc: Honorable Loyd Wright Judge, Probate Court No. 1 Harris County, Texas 201 Caroline, 6th Floor Houston, Texas 77002 Dean M. Blumrosen, Esq. 4615 Southwest Freeway, Suite 850 Houston Texas 77027 Counsel for Rosemary Foltyn and Jake Foltyn Mary Elizabeth Duff 21 0 Main Street ~chmond, Texas77469 Counsel for Rosemary Foltyn, Administratrix of the Estate of Janet Foltyn McAfee, Deceased Esther Anderson PAGE47  CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i) This brief complies with the word limitation of Tex. R. App. P. 9.4 (i) because the brief contains 10,912 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4(i)(1). This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in 14 point Times New Roman font. Dated: October 1, 20 15. Esther Anderson PAGE48  RULE 52.3(j) CERTIFICATION I have reviewed the petition and concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record. Esther Anderson PAGE49  APPENDIX TO PETITION FOR WRIT OF MANDAMUS 1. Agreed Order for Temporary Injunction 2. Order 3. Application for Writ of Garnishment 4. Motion to Quash Writs of Gmnishment 5. Notice to Court 6. Response to Charles Storer's Motion to Quash Writs of Garnishment 7. January 18,2015 Transcript 8. January 22, 2015 Transcript 9. Order Partially Granting Motion to Quash Writs of Garnishment 10. Motion to Partially Release Temporary Injunction 11. Motion to Partially Release Temporary Injunction 12. March 12, 2015 Transcript 13. Order Partially Releasing Temporary Injunction 14. First Amended Motion for Reconsideration of March 16, 2015, Order Partially Releasing Temporary Injunction, First Amended Motion for Entry of Order Releasing Social Security Proceeds from Injunction and Motion for Sanctions 15. May 14,2015 Transcript 16. Inventory, Appraisement and List of Claims 17. Order on First Amended Motion for Reconsideration of March 16, 2015 Order Partially Releasing Temporary Injunction, First Amended Motion for Entry of Order Releasing Social Security Proceeds from Injunction and Motion for Sanctions 18. Application for Temporary Restraining Order and Temporary Injunction PAGE 50  TABl Agreed Order for Temporary Injunction ~··--"""" 06/08/2011 WBD 9:20 PAX 7132243111 Law Office ~002/0~1 06/07/2011 10:58 Mitchell & Duff Attorneys at Law (FAX)281341S517 P.002/011 D~BATE COURT 1 ·~Jltrli'~Ji; 998~91 No. 396,935 IN THE ESTATE OF § IN THE PROBATE COURt § JANET FOLTYN MCAFEE, § N0.1 § DECEASED § HARRIS COUNTY, TEXAS AGBEED ORDER FOR TEMPORARY :INJUNCTION On Maroh 31, 2011 the Application for a Temporary Restraining Ot·der of Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee (the ..Estate"), was beard and granted before this Court. OnApril14 and May 5, 2011 the Courtultimatelyol·dered the Temporary Restraining Ordet• be extended and Temporary Injunction hearlng be rescheduled to June 9, 2011 at 2:00P.M. On May 18, 2011 the Application for a Supplemental Temporary Restraining Order of Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee, was heard and gtanted before this Court. The Temporary Injunction hearing was scheduled for June 1, 2011 at 12:00 PM. On June 1, 2011 the Cowt ordered the Supplemental Temporary Restraining Order be extended and Temporary Injunction be extended and Temporary Injunction hearing be rescheduled to June 9, 2011 at 2:00P.M. On June 7, 2011, tho parties agreed to the entry of a Temporary Injunction, andtopasson the hearing on June 9, 2011. This agreement is evidenced by counsels' signatures below. The Court finds that all necessnry prerequisites of the law have been legally satisfied and that the Court has jurisdiction in this case and of all the parties. The Court finds that Rosemary Foltyn, as Adnlinistratrix of the Bstate of JBJI.et Foltyn McAfee, is entitled to a Temporary Injunction. Agreed Temporary JbjUDCI1on 1 Df10 Confidential information may have been redacted from the document in compliance with the Public Information Act. ,,,,,11111111111 A Certified Copy ~''' \ OF /fA,,,/. Attest: 9/29/2015 ~"" " ••••••••"'·rr,r~~ §-~v· b L1 '//. Stan Stanart, County Clerk S" .·•••• ~·· ~,..... ~ ••·.;,rc~ ::~: ·.o::; Harris County, Texas :: ...... : - - ~ c::= .··~~ -o. . - -...- ... - .·~=... ">"&, . • :z- AA-J_ _,S.,t""' eu ' n'l:!g'-'G r h'""" ....,_,S UJe c.Jn Q i-Uec;uCI.4:h.~ea~I-IJIIa.:.. l _ _ _ _ _ _Deputy :u. ~ ~. ~~'OJ~···········~~~~ ,,, ,, fT,J 'Illy ~ ~ "' ,1- .......;::' \\"" ~ ''''" ""'''  ·-· · r 06/08/2011 WED ' 061071201 1 9:20 FAX 7132243111 Law Office 1o:sa Mitchell & Duff Attorneys at Law (FAX)281341 5517 ~003/011 . ?.003/011 IT IS THEREFORE ORDERED that Kenneth McAfee and all of his officers, agents, servants, employees, agents, servants, successors, assigns, representatives, and attorneys are ordered to immediately cease and desist from the use and control of the following accounts a:od property: THE GMS GROUP, LLC 1, Any and all funds in OMS Group, LLC accounts, including but not limited to the following, all of which are pl'esumed to contain community funds and/or funds belonging to the Estate: a. SSH-004628 b. 55H-OS6008 ~ . c. 551·660606 ~ iW'I d. SSH-003612 JO ,.,I e. SSH-034914 ~ f. SSH~850012 I g. SSH-042479 .; j ~ ql h. SSH-008207 i. 989~03491 j. 996·66060 k. 989-03500 2. Any and all funds in GMS Group, LLC accounts, all of which are presumed to contain commwlity :funds and/or funds belonging to the Estate, (i) in the name of Kenneth McAfee j· i or Janet F. McAfee, Individuallyi (ii) Kenneth McAfee and Janet F. McAfee jointly; (iii) which Ii i names one or both of them as a signatory: (iv) which contains fuuds In the care, custody, co.c.trol, for iI ! i the bc.mefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee, individually or jointly; and (v) ,\greed 'l"c111porary lnJun~lloll :z. or tO Confidential information may have been r edacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk :;li::i:d__o ----~S~ t e~d~ir~lQ ~GL~ SKe~n~ec~~ ~~aL II~II~--------Deputy ,....-------··---- 06/08/2Gll WED 9:20 FAX 7132243111 Law Office ~004/.011 06/07/201 1 10:58 Mitchell & Duff Attorneys at Law (fAX)2813415517 P.004/01 1 under any address related to eitherofthem~ such as a previous residence~ relative, representative, or attorney's address, or company which did business on behalf of either Kenne1h McAfee or Janet F. McAfee or which was owned in whole or in part by either Ol' both of them. The addresses include, but are not limited to, the following; 1. PO Box 66352, Houston Texas, 77266 2. PO Box. 460786 Houston, Texas, 77056 3. 6650 Fairfield Street Houston, Texas, 77023 4. 21 I 9 Tangley Houston, TexllB, 77005 WOODFOREST NATIONAL BANK 3. Any and all funds in Woodforest National Bank accounts, all of which are presumed to contain conummity funds and/or funds belonging to the .Estate, (I) :in the name of Kenneth McAfee or Janet F. McAfee, Individually; (il) Kenneth McAfee 11Dd Janet F. McAfee jointly; (iii) which names one or both of them as a signatory; (iv) which contains funds in the care, custody, control, for the benefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee, individually or jointly; and (v) under any address related to either of them, such as a previous residence, relative, representative, or attorney's address, or company which clid business on behalfof either Kenneth McAfee or Janet F. McAfee or which was owned in whole or in part by either or both of them. The adch·esses include, but are not limited to, the following: a. PO Box 66352, Houston Texas, 77266 b. PO Box 460786 Houston, Texas1 77056 e. 6650 Faid'ield Street Houston, Texas, 77023 d. 2119 Tangley Houston, Texas, 77005 .Agrulf Temporary Illjuncdoll 3or10 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ,.,11;_--dd Ster11ng G. Senechal II! Q Deputy  0~/0812011 WBD 9121 FAX. 7132243111 Law Office ~005/011, 06/07/2011 10:58 Mitchell & Dutt Attorneys at Law (FAX)281341S517 P.OOS/011 BANI{ OF AMERICA, N.A. 4. Any and aU funds .in Bank of America, N.A. accounts, all of which are .• presumed to contain community funds and/or funds belonging to the Estate, (i) in the name of Kenneth McAfee or Janet F. McAfee, lndividually; (ii) Kenneth McAfee and Janet F. McAfee jointly; (iii) which names one or both of them as a signatory; (iv) which contains funds in the care, custody, control, for the beoe.fit, or on behalf of Kenneth McAfee and/or Janet F. McAfee, individually or jointly; and (v) under any address related to either of them, such as a previous residence, relative, representative, or attorney's address, or company which rud business on behalf of either Kenneth McAfee o.l' Janet F. McAfee or which was owned in whole or in part by elther or both of them, The addresses include, but are not limited to, the following: a. PO Box 66352, Houston Texas, 77266 b. PO Box 460786 Houston, Texas) 77056 o. 6650 Fairfield Street Houston, Texas, 77023 d. 2119 Tangtey Houston, Texas, 77005 BBVA COMPASS BANK 5. Any and all funds in BBVA Compass accounts, including Laredo National Bank, including but not limited to the tollowing, all of which are presumed to contain community funds and/or funds belonging to the Estate: a. 113010547049~023 j b. 00810028023 I 6. /uly and all funds in BBVA Compass aooounts, including Laredo National I· Bank. all of which are presumed to contBin commwuty funds and/or funds belonging to the Estate, i ! j, (i) in the name ofKenneth McAfee or JIUlot F. McAfee, Individually; (ii) Kermeth McAfee and Janet Asretd Temporary IIIJun~don 4 of 10 I· J Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Har ris County, Texas .Lf;_A,J___a stenmg G: S8neclial II! Deputy  06/DS/2011 WBO 9t21 FAX 7132243111 Law Office ll!D06/01l OS/07/2011 10:SB Mitchell & Duff Attorneys at Law (FAX)281J415517 P.0061011 F. McAfee jointly; (iii) which names one or both ofthllm as a signatory; (iv) which contains funds in the care, custody, control) for the benefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee, individually Ol' jointly; and (v) under any address related to either of them, such as a previous residence) relative, representative, or attorney's address, or company which did business on behalfof either Kermetb.McAfee or Janet F, McAfee or which was owned in whole or in part by either or both of them. The addl'esses include, but are not limited to, the following: a. PO Box 66352, Houston Texas, 77266 b. PO Box 460786 Houston, Texns, 77056 c. 6650 Fairfield Street Houston, Texas,.77023 d. 2119 Tangley Houston, Texas, 77005 WELLS FARGO BANK, N.A. 7. Any and all fUnds in Wells Fargo Bank, N.A. accounts, all of which are presumed to contain· community funds and/or funds belonging to the Estate, (i) in the name of Kenneth McAfee or Janet F. McAfee, Individually; (ii) Kenneth McAfee and Janet F. McMee jointly; (iii) which names one or both ofthem as a signatory; (iv) which contains funds in the care, custody, control, for the benefit. or on behalf of Kenneth McAfee and/or Janet F. McAfee, individually or jointly; and (v) under any address related to either of them, such as a :preVious residence, relative, representative, or attomey's address, or ~ompany which did business on behalfof either Kenneth McMee or JanetF. McAfee or which wa~ owned in whole or in part by either or both of them. The addresses include, but arc not limited to, the following: a. PO Box 66352, Houston Texas, 77266 b. PO Box 460785 Houston, Texas, 77056 c. 6650 Fairfield Street Houston, Texas, 77023 Asrced Temporary Jlljuner!o11 5of10 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A-44 Sterling G. Senechal 111 £;( Deputy .--------------·-·---·-------------------------------- 06/08/2011 WBD 9~21 FAX 71322431ll Law Office fZJO 07/011 06/07/2011 10:58 Mitchell & Duff Attorneys at Law (F~13415517 P.007f011 d. 2119 Tangley Houston, Texas, 77005 CITIZENS FINANCIAL GROUP, INC. 8, Arly and aU funds in Citiz~::mJ Financial Group, Inc. accounts, all ofwhich are presumed to contain community funds and/or funds belonging to tho Estate, (i) in the name of Kenneth McAfee or Janet F. McAfee, Individually; (ii) Kenneth McAfee and Janet F. McAfee jointly; (iii) which names one or both of them as a signatory; (iv) whioh contains funds in the care, custody, control, for the benefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee. individually or jointly; and (v) under any address related to either of them, such as a previous 1·esidence, rela1ive, representative, or attorney's addtess. or company which did business on behalfof either Kenlleth McAfee or Janet F. McAfee or which was owned in whole or in part by either or both of them. The addresses include, but are not limited to, tho following: a. PO Box 66352, Houston Texas. 77266 b. PO Box 460786 Houston, Texas, 77056 c. 6650 Fairfield Street Houston, Texas, 77023 d. 2119 Tat~gley Hou.ston, Texas. 77005 PERSHIN_G LLC 9. Any and all funds in Pershing, LLC accowtts, all ofwhlch are presumed to contain community fund& and/or funds belonging to the Estate, (i) in the name of Kenneth McAfee or Janet F. McAfee, Individually; (ii) Kenneth McAfee and Janet F. McAfee jointly; (Ui) which names one Ol' both ofthem as a signatory; (iv) which contains funds in the care, custody, control, for the benefit, or on behalf ofKenneth McAfee and/or Janet F. McAfee, individually or jointly; and (v) Aerced Temporary Jnjuncrloa 6 orxo Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A_4d .QSterling G. Senechal II! Deputy  06/09/2011 WED 9:21 FAX 7132243111 Law Office !llo oS/ o11 OS/07/2011 10:59 Mitchell & Duff Attorneys at Law (FAX)2S13415S1 7 P.OOSJ01 1 under any address ~:elated to either of them, such as a previous residence, relative, representative, or attorney's address, or company which did business on beijalfofeither Kenneth McAfee 01' J8IletF. McAfee or which was owned in whole or in pBlt by either or both of them. The addresses include, but are not limited to, the following: a. PO Box 66352, Houston Texas, 77266 b. PO Box 460786 Houston, Texas, 77056 c. 6650 Fairfield Street Houston, Texas, 77023 d. 2119 Tangley Houston, Texas, 77005 GRUNT,AL & CO•• INC_. 10. Any and all funds in Gruntal & Co., Inc. accounts, including 8DY Gruntal & Co., lltc. subsidiaries Ol' affiliates, inclucfutg but not limited to the following, all of which al'e presumed to contain community funds and/or funds belonging to the Estate: a. 989·03491 . b. 989·05600 11, Any and all funds In Gruntal &. Co., Inc. e.ecoun~, , il1cludlng any Gruntal & Co., Inc. subsidiaries or affiliates, all of which are presumed to contain community funds and/or funds belonging to the Estate, (i) in the name ofKenneth McAfee or Janet F. McAfee, Individually; (ii) Kenneth McAfee and Janet F. McAfee jointly; (iii) which names one or both of them as a signatory; (iv) which contains funds In the care, custody, control, for tho benefit, or on behalf of Kenneth McAfee and/or Jooet F. McAfee, individually or jointly; and (v) under any address related to either of them, such as a previous residence, relative, representative, or attomey's address, or company which did business on behalf of either Kenneth McAfee or Janct F. MoAfoe or which was Agrctll 'l'emporar)' Ih)unctlon 7 utlO Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ..fl;4-d Sterling G. Senechal IP Q Deputy  06/08/2011 WED 9:21 FAX 7132243111 Law Office !ll009/0ll 06/07/2011 10:59 Mitchell & Duff Attorneys at Law f AX)281341 5517 P.009/011 owned in whole or in part by either or both of them. The addresses include, but are not lhnited to, tbe following: a. PO Box. 66352, Houston Texas, 77266 · b. PO Box 460786 Houston, Texas, 77056 c. 6650 Fairfield Street Houston, Texas, 77023 d. 2119 Tangley Houston, Texas, 7?005 OTIIER ACCOUNTS 12. A!ly and till accounts presumed to contain community funds and/or funds belonging to the Estate, (i) in the name of Kenneth McAfee or Janet F. McAfee, Individually; (ii) KeMeth McAfee and Janet F. McAfee jointly;. (iii) which name them as a signatory; (iv) which contains funds in the care, custody, control, for the benefit1 or on behalf of Kenneth McAfee and/or Janet F. McAfee. individually or jointly; and (v) under any address related to either ofthem, such as a previous residence, relative, representative1 or attorney's address, or company which did business on behalfof either Kenneth McAfee or Janet F. McAfee, including, but not limited to the following: a. PO Box 66352, Houston Texas, ?7266 b. PO Box 460786 Houston, Texas, 77056 c. 6650 Fairfield Street Houston, Texas, 77023 d. 2119 Tangley Houston, Texas, 77005 which contain: (i) Funds transfened from 01· that can be traced to the accom1ts described herein, including but limited to accounts at The OMS Group, LLC, Aem~ Tem-porary lnjunetloo BoflO Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A ..d_f_o Starling G: S8n8Challl! Deputy  06/08/2011 WED 9:21 FAX 7132243111 Law Office fili010/011 06/0712011 10:59 Mitchell & Duff Attorneys at Law (FAX)2813415517 P.OlOIOt 1 Woodforest National Bank1 Bank of America. N.A., BBVA Compass Bank1 Wells Fargo Bank, N.A., Citizens Financial Group, Inc., Pershing LLC, and G.nlt'llal & Co,1 Inc.; and/or (ii) Any and all additional funds and assets w,hich arc preswned to contain community funds and/or funds belonging to the Estate. , IT IS THEREFORE ORDERED, AD.nJDGED AND DECREED that any entity or individual, including but not limited to The GMS Group, LLC, Woodforest National Bank, Bank of America, N.A., BBVA Compass Bank, Wells Fargo Bank, N.A., Citizens Financial Group, Inc., Pershing LLC, and Grutnal & Co., Inc., which contains, controls, or possess~s funds presumed to belong to the community and/or Estate, is ordered by the Court to effectuate the terms of tbis Temporary Injunction should Kenneth McAfee, or any officers, agents, servants, employees, agents, servants, successors, assigns, representatives> and/or attorneys acting on ms behalf, attempt to access or obtain accounts or property within that entity or individual's control or possession, which may contain commtmitY funds and/or funds that belong to 'the Estate. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this Temporary Injunction Order is effective immediately and shall continue in force and effect until the Court me.keil a detClmination of what property belongs to the Estate or the Court 1'enders a full and fmaljudgment is in the pending wrongful deatl1 suit associated with this matter, which ever is later, or by further order of this Court. This order shall be binding on Kenneth McAfee, or any officers, employees, agents, servants, successo1·s> assigns, representatives, attorneys acting on his behalf, and on those persons in active concert or participation with him. The bond posted by the Administratrix is required to remain posted. Agreed 'fe111por~ry llljuneclon 9or10 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A_Ad .o Sterling G. Senechal II! Deputy  06/08/2011 WED 9:22 PAX 7132243111 Law Office ~011/0ll 06/0712011 10:59 Mitchell & Duff Attorneys at Law (FAX)2813415517 P.011/011 ':X) tI SIGNEDon~~~ at~m. APPROVED AS TO FORM: Duff Texas o.06J66880 21 0 Main Street Richmond, TX 77469 Tel. (281)34IM1718 Fax. (281)34lM5517 Atton1ey for Independent Administratrix Ro~ol~~ By:.___ ~~~--------------- DEAN M. BLUMROSEN, ESQ. State Bar No. 02517900 4615 Southwest Freeway, Suite 850 Houston, Texas 77027 7l3.S24.222SM Telephone 713.524.557~ Faoslmil Attomey for Heirs f et Foltyn McAfee I .;a - r- ro 0 .CN RECORDER'S MEMORANDUM: At tho time of recordation, lhll Instrument was round to be lnadaqusto for the belt photographic reproduction because of Illegibility, carbon or photo copy, dlacolored paper, etc. AIJ blockoull, ,1\groecl 'romporK., lojuoclloo 10 of 10 addlllona and changes were pro~~&nt allhe lima the Instrument was filed and rucordad. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas J,t..Jd Sterling G. Senechal II! _Q Deputy Tab2 Order  .. PROBATE COURT I r~ NO. 396,935-401 a c r:: ROSEMARY FOLTYN, Individually § (~. And as Independent Administratrix of the§ \_ 0 Estate of Janet Foltyn McAfee, Deceased; § (\J AND JAKE FOLTYN, Individually § o:l Plaintiffs § 0 § § I - ~ I C'J vs. § § § ,., (\j KENNETH COOPER MCAFEE § N Defendant § HARRIS COUNTY, TEXAS C'l c ORDER On this day the Court considered the Plaintiffs' Second Amended Motion for Summary Judgment on Plaintiffs wrongful death claim. The Court, after considering the pleadings, the motion, the response, if any, and the arguments of counsel, is of the opinion that the Plaintiffs' Second Amended Motion for Summary Judgment is hereby GRANTED. Defendan~, Kenneth Cooper McAfee is liable to the individual Plaintiffs for causing the death of their daughter, Janet McAfee. ORDERED, ADJUDGED and DECREED that Plaintiff, Rosemary Foltyn, Individually, recover from Defendant, Kenneth Cooper McAfee, after all offsets and credits, judgment in the amount of $1,000.000.00 for her 1 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A4LoSter11ng G. S nechal Ill Deputy  .I - ..... emotional pain and suffering due to the death of her daughter, Janet McAfee. It is further, ORDERED, ADJUDGED and DECREED that Plaintiff, Jake Foltyn, Individually, recover from Defendant, Kenneth Cooper McAfee, after all offsets and credits, judgment in the amount of $1,0001 000.00 for his emotional pain and suffering due to the death of his daughter, Janet McAfee. This judgment shall accrue together with interest thereon at the rate of 5% per annum from the date this suit was filed on February 23, 2011, until the date of judgment, post-judgment interest at the rate of 5% per annum, and for all costs of Court expended in this cause, for which let execution issue. This Judgment finally disposes of all parties and is appealable. SIGNED this ~~ ..rr- day of_---=-/-~ ?2ar=--=cb~'----' 2014. JUDGE LOYD WRIGHT 2 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A.4d. .a Ster11ng G Senech 1111 Deputy  Tab3 Application for Writ of Garnishment  FILED 10/9/2014 10:18:51 AM Stan Slanart PROBATE COURT 1 County Cieri< OM Hams County JANET F. MCAFEE, DECEASED 396935-401 NO. _ _ __ 0 ROSEMARY FOLTYN, Individually§ IN THE PROBATE COURT AND JAKE FOLTYN, Individually§ ONE Plaintiffs § § § § § § OF § ,.. vs. § 0 § THE GMS GROUP, L.L.C. AND § WOODFOREST NATIONAL § BANK § HAREITSCOUNTY,TEXAS Defendants 1 PER WRIT BY CERTIFIED MAILED APPLICATION FOR WRIT OF GARNISHMENT1 PER WRIT IN 10-9-2014 TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Rosemary and Jake Foltyn (hereinafter referred to as "Gamishors") and makes this Application for Writ of Garnishment against The GMS Group, L.L.C., and Woodforest National Bank, (hereinafter referred to as "Garnishees") and, in support hereof, Garnishors would show the Court the following: I. 1. Plaintiffs/Garnishors are Rosemary and Jake Foltyn ("Garnishors"). Application for Writ of Garnishment Page 1 C.P!RSONAL OCT 1 3 2014 ·-··--·- ---. ·-· ··· - - - - · - - -- ----- ..... .. ··---- ---- .. - . Confidential information may have bee n redacted from the document in complia nce with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas .A,4d_ .a St rUng G. S n challll Deputy  2. Defendant/Garnishee, LGMS Group, L.L.C., is a limited liability company doing business in Texas and may be served by serving its registered agent, via certified mail, return receipt requested, Corporation Service Company, DIBIA CSC -Lawyers Tnco,~E. 7&. Street, Suite 620, 'I:J' Austin, Texas 78701. 3. Defendant/Garnishee~::dforest National Bank is a privately held bank doing business in Texas and may be served by personally serving its~tered agent, James D. Dreibelbis, 25231 Grogan's Mill Road, Suite 100, The Woodlands, Teas 77380. 4. Venue is appropriate in Harris County, Texas because the Judgment was rendered in Harris County, Texas. II. 5. On or about March 21,2014, this Court, in case number 396,935- 401 styled Rosemary Foltyn, Individually and as Independent Administratrix ofthe Estate ofJanet Fo/tyn McAfee, Deceased; and Jake Foltyn, Individually v. Kenneth Cooper McAfee entered a Judgment against Defendant, Kenneth Cooper McAfee in the amount of $2,000,000.00, plus pre and post judgment interest, plus costs of Court ("Judgment"). A true and correct copy of the Application for Writ of Garnishment Page 2 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  Judgment is attached hereto as Exhibit "A" and incorporated herein by reference for all purposes. This Judgment is just, due, unpaid, and remains unsatisfied. ,~ III. 6. To the best of Garnishors' knowledge, the debtor, Kenneth Cooper McAfee does not possess property in Texas subject to execution that ,.. Cl is sufficient to satisfy the above-described claim. Plaintiffs served post- ,.. judgment discovery on Mr. McAfee on April 21, 2014. Defendant did not produce any documents establishing his ownership of property in Texas sufficient to satisfy the judgment against him. IV. 7. Gamishors have reason to believe, and do believe, that Garnishees, The OMS Group, L.L.C., and Woodforest National Bank, may be indebted to Kenneth Cooper McAfee by maintaining or holding one or more bank accounts. Gamishors believe Kenneth Cooper McAfee's social security number to be 454-82-X:X:XX. Gamishors are not seeking to injure or harass the Garnishees or the Judgment Debtor by sending out a Writ of Garnishment. Rather, Garnishors are attempting to collect on a Judgment. Gamishors request that if Garnishees, The OMS Group, L.L.C., and Woodforest National Application for Wrtt of Garnishment Page 3 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Sterling G. Senechaf 111  Bank are indebted to Kenneth Cooper McAfee by any account or otherwise, that Garnishees hold and allow Garnishors to garnish said belongings. Garnishors also request that if Garnishees hold possessions in a safety deposit box at any branch that Garnishees hold and allow Gamishors to garnish said belongings as pennitted by law. v. 8. This Application is supported by the Affidavit of Dean M. Blumrosen attached hereto as Exhibit "8" and incorporated herein by reference for all purposes. WHEREFORE, PREMISES CONSIDERED, Rosemary and Jake Foltyn, request that a Writ of Garnishment be issued as above described and that Gamishors have judgment to partially satisfy the claim above-mentioned as provided by law, together with all costs of Court incurred in this proceedings, and other such relief to which Garnishors may be justly entitled. Application for Writ of Garnishment Page 4 - - - - - - -- ··· ···· · · · - -·······-··- - - -- - Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  ··------------------------------------------------ C) il. R~~t~ DEAN M. BLUMROSEN, ESQ. State Bar No. 02517900 4615 Southwest Freeway, Suite 850 ~1 Houston, Texas 77027 .... 713.524.2225- Telephone 0 713.524.5570- Facsimile N Dblumrosenlaw@aol.com ATTORNEY FOR PLAINTIFFS I'"' Application for Wtit of Garnishment Page 5 . ····- ··· ·-·-···- ··· - ---- - --·· - -· ... ... ... . . ······· .. . Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  ('J 1;\j EXHIBIT A ------------------- -···· Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy  NO. 396,935-401 ROSEMARY YOLTYN, fndlvlduall)' § IN THE PROBATE COURT ONE And as Independent Adminl~tnltrix of the§ Estate of .Jaaet Foltyn McAfee, Deceased; § AND JAh.'"E FOLTYN, Individually § ,..... Plaintifft § § § OF § I"' 1'", vs. § 1\J § t".. KE!IINETH COOPER MCAFEE § '••' Defendant § HARRIS COUNTY, TEXAS ,.. ORDER On this day the Court considered the Plaintiffs' Second Amended Motion for Summary Judgment on Plaintiffs wrongful death claim. The Court, after considering the pleadings, the motion, the response, if any, and the arguments of counsel, is of the opinion that the Plaintiffs' Second Amended Motion for Summary Judgment is h.ereby GRANTED. Defendant, Kenneth Cooper McAfee is liable to the individual Plaintiffs for causing the death of their daughter, Janet McAfee. ORDERED, ADJUDGED and DECREED that Plaintiff, Rosemary Foltyn, Individually, recover from Defendant, KeMeth Cooper McAfee, after all offsets and credits, judgment in the amount of $1,000.000.00, for her 1 I ! I I'f I,. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  v •• emotional pain and suffering due to the death of her dau~ter, Janet McAfee. It is further, ORDERED, ADJUDGED and DECREED that Plaintiff, Jake Foltyn, Individually, recover from Defendant, Kenneth Cooper McMee, after all offsets and credits, judgment in the amount of $1,000.000.00, for his emotional pain and suffering due to the death of his daughter, Janet McAfee. This judgment shall accrue together with Interest thereon at the rate of 5% per ,,, I,_..J annum from the date this suit was filed on February 23, 2011, until the date of judgment, post-judgment interest at the: rate of 5% per annum, and for all costs of Court expended in this cause, for which let execution issue. This Judgment finally disposes of all parties and is appealable. SIGNED this ~I ..s-r- day of _ _!.:.../?2__.(:.-~oQ.C~ch..c;....)._ ___,, 2014. JUDGE LOYD WRIGHT 2 . .... . ---··- -- · - -- - - - I (, Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  ...... ,.. ,.. (:) EXHIBIT B Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A-<4L o St nino G. Sen chef Ill Deputy  AFFIDAVIT OF DEAN M. BLUMROSEN STATEOFTEXAS § § COUNTY OF HARRIS § BEFORE ME, the undersigned official, on this day, personally appeared before me, Dean M. Blumrosen, who after being duly sworn, did depose and state as follows: I. "My name is Dean M. Blumrosen.l am over 21 years of age, of sound mind, have never been convinced of a felony and um capable of making this 1::; allidavit. 2. ';I om nn attorney for Rosemary and Jake Foltyn., Gamishors in this Garnishment. 3. ;'I have personal knowledge of the facts as stated in Garnishors' Application r~ W CouniY 522CAUSE NO. 396935-401 N c INRE § IN THE PROBATE COURT (). JANET F. McAFEE, § Deceased § NUMBER ONE § ROSEMARYFOLYNand § i JAKEFOLYN § i .. § I~ ~ § OF 10 § iN THE GMS GROUP, LLC and § I~ WOODFOREST NATIONAL BANK, Defendants § § HARRIS COUNTY, TEXAS MOTION TO QUASH WRITS OF GARNISHMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Charles Storer, Power of Attorney for Charles McAfee, Defendant herein, and holder of the accounts Plaintiffs seeks Via the Writs of Garnishment Issued by this Court, who m011es to quash (dissolve} the two Wrfts of Garnishment issued post- judgment in this cause (to Woodforest National Bank and GMS Group}, as the Writs reach accounts andlor assets that are wholly exempt from the reach of judgment creditors (indeed from the reach of all creditors). In support of this Motlon, Mr. storer, would show the following: 1 I. INTRODUCTION AND SUMMARY 1. This Court Issued two writs of garnishment at the request of Plaintiffs. While a judgment creditor has a right to pursue collection on their judgment, including via garnishment upon depository aocounts, Texas and federal law sharply limit what property of a judgment debtor may be taken. Here, both or the accounts are 1 Mr. McAfee deslgnated a Power of Attorney heta\lse he 1s incarcerated. ..... or MOnoN TO QIJ.I.SH WRFT-5 GAAHISHMEJlf Confidential information mar have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy  entirely and undividedly, protected from the reach of all creditors. Because these .- N 0 accounts may not be taken by any creditor, with any judgment, the two Writs 0. issued while the Court was unknowing of the exempt status of these accounts, 0 1'1 should and must be quashed. II. FACTS AND PROCEDURAL HISTORY ,...! 0 §42.0021 (a) (including within exemptions •a person's right to the assets held In or N 0 to receive payments, whether vested or not, under any stock bonus, pension, N annuity, deferred compensation, profit-sharing, or similar plan"). Such funds and such .accounts are "exempt from attachment. execution, end seizure for the satisfaction of debts• so long as the account Is exempt from immediate federal income taxation. /d.; sea a/so Lozano v. Lozano, 875 S.W.2d 63. 66 {TelC.App.- Houston [1411>] 1998). IRAs have been exempt from the reach of creditors in Texas, including judgment creditors, since 1987. See Williams v. Texas Commerce Bank. 766 S.W.2d 344, 346 (Tex.App.- El Paso 1989). 27. The GMS account is, was intended to be, and is set forth by GMS as a tax- deferred rellrement account, and qualifies for exemption under §42.0021(a). See Letter from Matthew E. Lipman (counsel for GMS) to County Clerk (Oct. 23, 2014) (Exhibit 2) (describing garnished account as a 'DLJ Qualified Retirement Plan"); see a/so Summary Plan Description for GMS Group, L.L.C. Salary 10 A spreadsheet showing aH deposits Into the account since December o! 2009 Is attached to !his pleading as Exhibit A. MOTION 10 QUASH WRfTS OF GARHLSHMENl PotQe'11 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  tJ) N Savings Plan, at p. 3, 1)6 (describing employee contributions as 401(k) tax- (IJ 0 deferred contributions). 11 fl. 0 28. The GMS account, therefore, may not be turned over to a creditor, including by "" garnishment. See Bergman v. Bergman, 888 S.W.2d 580, 586 (Tex.App. - El Paso 1994) {reversing turnover order because account was exempt); accord Nu- ,..'\t c Way Energy Corp. v. Delp, 205 S.W.3d 667, 679 (Tex.App. -Waco 2006); Kent 1\J 0 v. Holmes, 139 S.W.3d 120, 131 (Tex.App. -Texarkana 2004); Bergman v. (\) ... Bagmen, 888 S.W.2d 580, 586 (Tex.App.- El Paso 1994); Morgan v. Horton, 675 S.W.2d 602, 604 (Tex.App. - Dallas 1984). The unanimous voice of !he oourts resufts from the clear legislative purpose to 'protect the Interests in the retirement fund from credHors and assignees' Kent v. Holmes, 139 S.W.3d at 131. 29. Like with social security benefits, the exemption for tax-deferred retirement acoounts is read without neither exemptions nor narrowness, to fulfill a state policy favoring debtors that has existed since the nineteenth Century. See Bergmen v. Bergman, 888 S.W.2d 580, 586 (Tex.App.- El Paso 1994) ld., 888 S.W.2d at 585. ('the long standing public policy of Texas has favored debtors over creditors) [citing Be// v. Indian Uve-stock Co., 11 S.W. 344, 346 (Texas 1889)]. 30. There can be littte doubt that a firm such as GMS, which represents itself as a full service brokerage house,· and advises people on planning for their retirement, presented their employees w~h anything other than an IRS-qualified plan for their 11 The <:hart of accounls Included In Mr. Lipman's fetter (ExhlbH '2 to ihatletter)ls attached to this pleading as ExhibH C. The Plan Description Is attached to lhls pleading as Exhibit D. MOTION iO O!JA$H ~ITS OF Q:AAMSHM£NT P1;et2 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  m retirement benefit. See In re Youngblood, 29 F.3d 225, 228 (51" Cir. 1994) (tax N N treatment of account is determinative inquiry under §42.0021); see also id., 29 0 !l. F.3d at 229 ("the legislature intended for its own slate couns ... to defer to the 0 lrl IRS in determining whether a retirement plan is 'qualified' under the Internal Revenue Code"); Lozano v. Lozano, 975 S.W.2d at 67 ('evidence that an Ill' ,... account ls an Individual retirement annuity is sufficient to establish that it Is 0 N exempt"). 12 0 N 31. ,.. While Mr. Storer has, and can put on evidence showing the tax-exempt nature of the GMS account, that exemption is clear from the facial descriptions of the account Issued by GMS. in any event, garnishment has no basis in Texas' common law, and is purely statutory. Consequently, a pany claiming an entitlement to garnishment has to prove that the property he is after is subject to the procedure. See Del-Phi Engineering Associates v. Texas Commerce Bank, 771 S.W.2d 569, 591 (Tex.App. - Beaumont 1969) (Burgess, J., dissenting) (motion to dissolve writ joins the issue, and then par1y seeking garnishment must put on proof that they are entitled to the funds). 32. That burden cannot be met by the Plaintiffs in this cause, as the GMS account Is, beyond question, a tax-deferred retirement account and beyond the reach of all credilors. 13 or " Moreover, unliKe wilh social seeuriiy benefits, it ts !he account that is exempt; !he source the funds is lm!levanl Seo id., 975 S.W.2llat 66. " If the burden l• placed on Mr. Storer, •• lhe party claiming the exempllon, he can easily do "" If permitted an evidential)' hearing with sufficient time to subpoena the needed records. MO'TICIN TO QUASH WFtfTS OF GARNISHMENT P*13 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  0 PRAYER ~ N 0 WHEREFORE, PREMISES CONSIDERED, Charles Storer, Power of Attorney !l. for Defendant, Charles McAfee, respectfully prays that the Court enters an Order 0 1!1 quashing {dissolving) the two Writs of Garnishment Issued in this cause as reaching ... exempt assets that cannot be garnished, for any reason, and further prays for such ... other and further relief to which he or Mr. McAfee may be entitled, in law or In equity. 0 N Respectfully submitted, 0 N ,.. ANDERSON PFEIFFER, PC /s/Xstner ,J!,ndi!rmn By: Esther Anderson SBN: 00792332 845 FM 517 West, Suite 200 Dickinson, Texas 77539 Office: 281.488.6535 Facsimile: 281.614.5205 EmaH: eslher@probateguarrJianshlp.com Of counsel on the Pleading: lsi 'Ro5ert Teir Robert Teir Robert Teir, PLLC 845 FM 517 West, Suite 200 Dickinson, Texas 77539 Office: 832.365.11g1 Facsimile: 632.550.2700 Email: rob@telrlaw.com Attorneys for Mr. Charles Storer MOTION TO QUASH WRITS OF GARH1SHMEHT PB~i.t Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  i!J CERTIFICATE OF SERVICE N 0 :l. 0 1. Robert Teir. undersigned below, hereby certify that a true and correct copy of u'1 the following has been forwarded to all parties and/or counsel of record through our electronic service provider and/or facsimile on !his 19111 day of November, 2014. r:t .... 0 (IJ /s!:Rc6ert 'leir 0 Robert Teir N cc: Matthew E. Lipman Faust Oppenheim LLP 488 Madison Avenue Via Electronic Service Provider & . New York. New York 10022 Facsimile 212-371-11410 Dean M. Blumrosen, Esq. 4615 Southwest Freeway. Sui!e 850 tronlc Service Provider & Houston Texas no21 Ia 713-524-5570 Defendant Woodforest National Bank (as counsel Is not known as this party has not yet answered) MOTJOn TO Qu..\SH YmrTS OF GA.fUilStw£1(f P~IU Confidential information may have been redacted from tbc document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy  ::t:CI.l>> ~ S' ~ Q ::!. =: ;. .. ("') 0 ;oo~§i 0 Q ~ l'..,l :> ::! c Ill) "" Q. c. <> 11202014:11SO:P0232 = =;: ; (j :> q'l:o)c:>o =. ... llol! _, "0 '"'! .... Vt...;: ~ a :; (""} ;:;> ....., "' Q a"' = ~ Date Balance on Account SSOI Other Deposits Source Mthdrawal Source/Chk# :> 5I 121281!!9 $4,413.03 -<(""}= ~ 01119110 $4.413.03 $2,184.00 SSDI (!> :r 01127110 $6,597.03 $25.00 AcctFee "'! - ., 01127110 $6,57:!.03 $4.35 < t'> ~ 01/27110 $6,576.36 '""'""'' t::f' 02/04110 $6,576.36 <> $2,000.00 111007 t'> 02116110 $4,576.36 $2,184.00 SSDI ..,:> 02127110 $6,760.36 $5.03 interest t> c. 02127110 S6,765.41 0 ~ 03/02110 $8,765.41 $6S6.55 4] 03Jit3110 $6,108.fl6 $325.00 #1008 c c. 03105/10 S5,783.fl6 $2,000.00 111010 q 03116110 $3,783.$6 52.184.00 SSDI "=<' 0 03127110 $5,967.86 $0.20 lnterut 5I OJ/27110 S5,96a.06 :;. 03131110 $$,968.06 $2,000.00 #10011 . c. 0 03129110 04106110 $3,96a.06 $3,773.98 $194.08 111012 $3SO.OO #1013 c 0411!l/10 $3,363.98 $190,00 #1014 5I 04120110 $3,193.98 $2,184.00 SSDI ."a 04123110 $5,377.98 $25,16'2.66 WlfeTran II~ 04123110 $30,540.84 Interest 510,00 Wire fee :r 04127110 $30,530.64 Sll.35 "0 04127110 $30,530.99 • - 5I 04/30110 $30,530.99 $2,000.00 #1015 '1:::1 05104110 $28,530.99 $9,735.92 WT = 05JD5110 $38,266.91 $10.00 TF "' 05105110 $311,256.91 $300.00 111018 ·(' :;= 05112110 $37,9fl6.91 $1,000.00 #1019 05115110 S35,9fl6.91 $2,184.00 SSDI ~ :r 02127110 $39,140.91 $1.50 Interest :;. OS/27110 $39,142.41 06/15110 $39,142.41 $2.164.00 SSOI "-cc 61281201 $41,326.41 $1.76 ln-1 0612ll11Q $41,328.17 ~,,,,uuum111 5!: 1 ;:;· S'~~~..~~~llf '"~ ;; ;:;> ~~·~·· g l ···.4-'o~ ..........~ 3 ;::.H ~ oE. "g. s-:=. \• : ...,.,= .. ..._:: = ~V':. •• ~;:: > ----·-·----·~· -··-~ .,. . ~··· '"' ··-·- --····-···-· .. -· ~ 'h~· .·: _:::":::";:: ~ ~~-r.:>:·· .. .g;:. ~,~ :·········· ~~ :.U.Nl\0') "'''"11111nuu'''''""!>.'~  ::t:t:Zl>> ~,.....=:(j :-·: = Ci'il::s ~-..,~ .... - l":l 0 (") (/) ~ :::: 0 M- N 5n ::> c 1:1:1 1,0 Q. 0. ,., 11202014:1150:P0233 ==~(") ..'.!~:~:~oo a ......, ., ~ .... Ul '< E "' - ;· .,,..>< .. ('1 ...Q' 0 9 = s. 7101201 $41.328.17 $15,000.00 #1027 = c:r :::: 07107110 $26,328.17 $10,000.00 #1026 .;;;;;;;;: 11-.. ~ 07120110 $16.328.17 $2,184.00 SSOI 9 ('1 07127110 $18,512.17 $0.93 lnleretit ~ ('!) ,..., 07127110 $18,513.10 ., - 08117110 .$18.513.10 $2,184.00 SSOI ~ ~ 06123110 $20,697.10 $6,000,00 #1028 CT 08127110 $14,697.10 50.78 Interest ,.,::::,., lll271200 $14,6ll7.88 ... 09114110 $14,697.88 $2,184.00 SSDI 0812711() $16,881.88 $0.67 ln..,est "'Q. 91271201 $16,882.55 0 .g !l 10/19110 516,882.55 $2,164.00 SSDl .... c Q. 10/27/10 ~19.088.55 S0.72 Interest ::;> 16127110 $19,067.27 ..'.! 0 11/1812()1 $19,067.27 $2,164.00 SSOI 9 1111Si201 521,251.27 $55.00 #1029 ;;. 11127110 $21,19627 $0.84 lnlert!$1 11127110 $21,197.11 Q. "' $19,024.63 #1031 0 11129/10 521.197.11 2 12114110 $2,172.48 S2, 164.00 SSDI 12127110 $>11,358.48 $0.16 lnt..,st ..,9 12127110 $4,356.64 a 01118111 $4,358.64 51,842.90 SSOI :;- 01127111 $0,199.54 50.21 Interest 0 01127111 $6,1!19.75 "' 02115/11 56,199.75 $1,842.90 SSOI ..,9 02128111 $8.042.65 S0.31 Interest ;: 02126111 $8.,042.96 03/15111 $8,0<12.96 $1,842.90 SSOI """ 03/28111 $9,885.86 S0.34 lntorest !. 03/28111 $9,886.20 ;;. 04119111 59,88620 $1,842.90 SSDI ;;. 04127111 $11,729.10 $0.43 Interest 04127111 $11,729.53 "'c., 05117111 $11,729.53 $1,842.90 SSDI 05127/ll 513,572.43 $0.51 Interest \\\\\111111111/fl ::: ~,,,, ~ COU/f 111,., ;:;· .$' o<:O~ •••••••••• J" ....~ :::: - Q' ··.;'o~ §:$'~.t-~·· ........,~ 3 :,t._! \ o: sc;· :~, : : """5 :::: - • II - ~ ... ;:::~ .... , · - ~ · - · . ,. --- .. _ ~\/'.. ~~ !l _______ ~ ~·· ..·..:~;:: ~ ~··:·· ..······ ~~ :.UNl\0') '!1.''~ "'''''1111111nnn'''"  ::X: OO> > 1:1) ;:; ("'J "'..,. (") '":::!. Q -- =..=- "'..,. noo~§i ...,. N tlJ Q = :::! c 1:1) '-0 Q, Q, ==t::~n <> l I 112020i4:1150:P0234 •:1' 1:1) c e :::. ~ "'!-., " ~-!JI«: ~ >< ~ :r n C' .., <:::> .."'"' = = . = g. 05127111 $13,572.94 = ll6/14111 $13,572.94 $1,942.90 SSOl ~ 06/27111 $15.415.94 $0.61 tnterest OS/27111 $15,416.45 .,= n '< 1\t' ~ "'! - ):I;" :::r . < <> 07/27111 07119111 07127111 515,416.45 $17,259.35 $17,260.01 $1,942.90 $0.66 SSOI Interest ..,<:1' 07128111 $17,260.01 $5.00 ESI 08116111 $17,265,01 $1,942-90 SSOI ""... 08127111 $19,107.91 $0,16 lnt"""'l Q, 08127111 $19,108,67 t;;j .,"',.. 09120111 $19,108.67 $1,942-90 SSOI ;:; 09127/11 $20,951.57 $0.83 lnlafest 't:1 Q, 0!1127111 "'c $20,952..cll q ::;> 10118111 $20,952.40 51,942-90 SSOI Q $22,795,30 I 3 10121111 10127/11 $22,786.15 $0.89 Interest ;- 10/31111 $22,796.19 $3,758.70 Soc Sec? 11/1S/11 $26,554.89 $1,942.90 SSDI c. Q $28,391.79 S1.18 ln!en>S! ,.. 11127/11 $28,398.97 c 12120111 628,3!18.97 S2, 194.00 SSOI 12127/11 $30,582.97 51.15 Interest "a= 12127111 $30,584.12 s· 01106112 $30,594.12 S86.~0 Soc Sec? ,.. 01117112 $30,650.52 $1,976.60 SSOI 0 01127112 $32,627.12 $1.33 Interest 'E. = 01/Zl/12 $32,628.45 ;;;· 02114112 $~,628.45 $2,043.00 SSOI ,..= 02107112 $34,671.~5 $1.42 Interest ":;; O:V%7112 S34,G72.87 03/0S/12 $34,672.87 $100.00 IRS PtoCC$sing Fee ~ 03120112 $34,572.87 $2,043.00 SSOI 03123/12 $30,615.87 $3,685.80 Tma•u'Y levy ,.;; 03127/12 $32,930.07 $1.37 lnterelll "d 03/27112 $3:1.,931.44 c 04117112 532.931.44 $2,04300 SSOI ,,t\ntllllllltt :r ,.,,,,,~ COUI( ~,,,,.,. ~ #o~"..·········.~ ~% ;' .... §~~.~0~•••. ·;~ ...C' .,3 :,'-: g. :~\ '!. : = : ~== ; ~. .: ;::r:~ > O:::...r.·. ··~;:: ":,'> ~ ~·· •• ~§ ~. . .,,.+: . ~············· ~~ :.Utmo") ),.,,~ "1111111111\1\\\\'i  ::t:CI:l>> ~ &t Q "1 ('1 Q ;; rn -· =i;e. . 5 0 ~ t-..J ~ ::! c 1\:1\00.. " Q.. ------------------- :::.=;.::;(") 1l202014:1150:P0235 '<1\).:::0c:> "' :;; ~ ' " ' I - "1:1 ..,,....01'< ! "' ~ :r ~ (j .,S' "' 0 3 ;:; = c;· 04127/12 $34,974.44 $1.43 !ntere.st q= 04127111 $34,!11'5.87 3 05115112 $34,975.87 $2,043.00 SSDI (j ." $37,018.87 $1.52 lnlorest '< n> ::r 05127112 $37,020.39 '"'I - 06119112 $37,020.39 S2,043.00 SSO! ~ "'.., 06/:!7112 539,063.39 $1,54 Interest ..."' 06127112 $39,00433 ~ 07117112 $39,004,93 $2,043.00 SSOI .," 07127112 $41,107.93 $1,63 Interest Q.. 07127112 $41,109.56 08/14112 $41,100.56 $2,043.00 SSDI 0 .,"',.. $1.78 tnterest 00127/12 $43,152.56 ~ Q.. 118127112 $43,1$4.34 c SSOI .q ::;' "' 09118/12 $43,154.34 $2,043.00 Q 09127112 $45,197.34 51.66 lntere:st 3 09127112 $45,199.20 g. 10116112 $45,199.20 $2,043.00 SSDI t> 10127112 $47,242.20 S1Jl8 Interest Q.. Q 10127112 $47,244.118 "'c 11120/12 $47,244.08 $2,043.00 SSDI 3t> 11127112 $49,287.08 $2.02 lnlefesl 11127112 $49,289.10 a 12118/12 $49,289.10 $2,043.00 SSDI Ei' $$1,332.10 $2.05 fnloresl t> 12127112 $$1,334.15 0 01115113 $$1,334.15 $2,067.00 SSDI 3 01128/13 $$3,401.15 S2.29 lnte<0$1 'E. $$3,403.44 ;· 01/21!113 02119113 $53,403.44 $2,067.00 SSOI ""'"' 02/27113 $55,470.44 $2.22 lntereot 02127113 $.55,472.66 !. 03119113 $55,472.66 $2,067.00 SSOI ;. $57,539.66 S2.15 lntell!St g. 03127113 $57,541.81 .,"' 04/16113 $57,$41.81 $2,067.00 SSDI c 04127113 $59,608,81 $2.48 lnlll- \\\\\\\lllllflllt ...;;t COUf/ '''''" ;' ~.:$>'""' \;j'9~~••••••• ,. ~ S' ~$~.··-~··· 4;(1'-:._ ··...·... ;'*" = : ~ ~ 9 :)'r: ~ o: ~. Q s : : --n: = ~ \ : ;;:,i: > ~~-. ;; ~ ":f~:·· g>~ ..·..:~~ ~~ =········· ~~ ""''"11:.U.NfiOJ ~~ 111mm'''''"  ::t: 00 > > e; ...... ~Cj ""t ~ m t't> -·:: ..... ""f en •• l""fo- C"l 0 ("')00~5 :::1 0 ....... N fb ::'1 c Ill) "" Q. Cl. /~~ q= = ;: ; ("') Ill)<::> 0 .., I ::! 11202014!1150:P023G ~ "'j .... 'C ..., ..... Ul '< a:;· ' "'., ~ "' (j 0' .... ~ "' c: 3 g. it: 0 . ::. 04127113 $59,611.29 !!?. :::1 05114113 $59,611.29 $2,067.00 SSDI -<= :161,678.29 5 09127113 :169,646.81 $2.90 fnterest 0 OS/:!7/13 $69,649.71 I 3 1011St13 $69,649.71 $2,067.00 SSDI ;: 10127113 $71,716.71 $2.90 Interest .., 10127/13 $71,719.61 Q. 0 10131/13 $71,719.61 $2.538.80 SSDI n 11119113 $74,258.41 $2.(lS7.00 SSDI c 11127113 $76,32M1 $3.17 lntetliSI ...3 11127113 $76,328.58 12127/13 $76.326.58 $3.14 ln!l!resl :;· -= 12127113 $76,331.72 01127114 576,331.72 $3.24 lntarost 0 "3 01127114 $76,334.96 "g. 02127114 $76,334.96 $3.24 lnlerest 02127114 $76,338.20 •r= ...n !. Total ss Payments $101,904.35 ;: Shortage $2S,51l6.15 ;: I I .. 'tl c:: \\\\UIIIIfllltr :: :-.''''\~ COUJi/'''"" ;· ::1 0 ::1 ~$ -'S ..·. .. ;:::- ,.......,_,._ ll I ~-- ~~-.,. /~~ - ----- ·---·--...-... ~ ~ .. .. ~~ ;.;..~~-=--······· ~ 4..um!Kl!lil> 01< 02·114·10 19,)8 Mill 'lll'ilflG IW.ANCE 5!>WAI I)ATE ............IW.ANC£ 11\TE ............ ~ 1\\lt, .. .,, ...... BAJ.AHCE OI-l& 6.m.Ja C2·04 4,S16.lB 0<-16 6.160.)8 OI·Zl 6,761.41 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy  Ol ('j N 0 Q. 0 Ll'l llfiiAH!l 110!323404 2.000.00 2.189.03 6.765.41 "! 0 N 0 N Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  0 "1 N 0 Q. 0 b1 2.lSMD 5.968.06 llj' 0 N c N P£liSaW. Sltllllt.iillllVNa.OSU!tl M1E. .............. .S !OlD 2.000.00 2 C!EC~S FMO fOit A Tll!!ll. Of 12,325.00 tl'IILY CLOSIIIG IIN.AHCt SUtWII CAll ............ IIN.AHCE !IAJE ............ IIN.AHCE MTL .......... IWJ,If;E 02·28 6.16S.41 03-!ll 6,440.41 OJ.OJ 5.783.!16 01-05 l.!!ll.ll6 03·16 5.91>1.116 OM! ~.968.06 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas AAd__o sterling G. Senechal II! Deputy  ~ N 0 0. 0 ~-1 6.16S.4l 2,!&4.20 5,968.06 0 N 0 N ,... Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  0 1(1 OOWi> 1501323404 27,347.VI 'II 0 N 0 N Pmoow S'lE'lllill N:'IA/f!la- o.~t T: l!l16t.l5 ,JS OE!WI!J 1501J~Il4 llo\Tr ............. . 114·20 21 04·23 zs ~IRE CR 04·11 OA!t ................uoJIIT••Wl1'HliWI.Il.S »«! Ol'IIU< MBI!'S OH9 1!14.00 l!Ol·f101~ OI:CK 1'1111 tll'.st lli·Zl 10.00 TI!f 0114125400 WI!!£ TAANS fit OATE .. I:IlEClC Ill .............. NWI! OATl .. (J!Ult Ill ............... AIIlilll 03•11 lOll 2,000.00 04-19 1014 190.00 04-06 lOU• 390.00 3 Cl£!XS PAll fOil A 101~ Of il.SIJO.OO ~Vf.PJa £ sa.z~.Js AV£AAGI. E !B,Z6Z.3S IUMl'Ut ,193.!1!1 octllll!lrn CIIO'"l9·JO f<.AA·TO· PAID 19.93 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/2912015 Stan Stanart, County Clerk Harris County, Texas  0 ll'l S,\>68.06 OAH ... ON& 04·05 l, OHJ 30, Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas AA~ &iefllng G. Senechal Ill Deputy  OOA·I50132l404 l.llO.CO ll,9!1.4.! ... 0 (\J 0 N · - Slt!U.llOSHS Nil! OMl\ CR£orn DO· IS Z,lll4.00 IQl·SIX SEt US I'I!E'AS\RY JOJ 06·2S 1.76 lllmEST P~1D 140.097.91 .41 OCCl.lll!m Oil 01·!8·10 111.19 CAllY C\.OSliiG llAIA'!C£ SUOW!f OAT£.. .......... BAIA'«X 01.1< ............ BAlA'ICF !liT£ ............I!ALAIIC1: 05-26 39,14Z.:) . . . . . . . . . . io:~ ~!k~~~· l«l ............ iS:= 2 OIEC~ PAID fOil A TllTAI. Of $2S,Oil0.00 7'~~ Cll 07·01-10 14.12 OAIU ClllSIIll BAVIlC£ SI,HIAAY ~:~ ........ i~~ ~!~"'"""ib~~~ ~~~f"'" '"i6~i 01·20 18.SU.ll 07-17 li!.SlJ.lO Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/2912015 Stan Stanart, County Clerk Harris County, Texas  ~OO<.H c 1'1:.\FE! 6610 fAIRF1£LO ST IOJS1lillll 71023 lM!J.lO ~.OOO.QO 14,6117.18 "'...0 N 0 N o.ost r: sumo.J3 78 DEIIIlll !SOUZJ.I04 l ~S 01\Tt .............. .AIW!r.. WOS!I'S RIO 01ll£ll ClifOITS Oll·17 l.lliUO ..cH·SIX SEC L'i ll!£ASIJ!l 303 06•21 D.78 II!T!llEST PAlO 01\TE .. ti!ECI: 110 .............. AI'O.Ifr 01\TE .. OU:CK NO ............... _ . :19·23 10'T£ ............ ll'oi.IHC£ 07·1'8 IO.IIl.IO 1!11·11 20.697,10 llll·rl 14,6'17.10 0!1·27 14,697.81 Confidential information may have been redacted from the document in compliance with the Public Information Act. 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A Certified Copy Attest: 9129/ZOlS Stan Stanart, County Clerk Harris County, Texas Deputy  001.-!50!3~ 19.067.21 21,191.11 0 N 0 N lli\l!:...............Nill.liT .. O£POSITS IJill OJ'HfR CREillTS 11·16 2.184.00 AC!Htl: SEC liS ~ ll3 11-21 0.&4 lll!£1\t£ .. 0f:tK 1IJ • • .. ... .. .. .NI:II!IT MTI. .. Clll!X IOQ, ..............MOOIIT U·l9 1029 55.00 1 CH£CKS PAlO FllR A llJTAI. OF 15S,OO &.72 119.8'16.12 .21 OCCIIIII!£0 OH 10·28·10 U7.ll OA!LY t\05111;; BAL/.IICE l\lfi\I.RY OAIE. ........... !!At.ANC£ 04lt, ........... BAL/.IICE MT£............ 1!ALMCE 10·?8 11.~7.21 11-16 Z!.2Sl.27 11-19 11.196.21 11-Zl 21.111.l! Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County CJerk Harris County, Texas  N tr'l N 0 i). 0 U'l 21,197.11 2,1114.16 OOWI!l !5013134114 1 £11Ct.011.11fS ~~~··········· .. i:~··=~~~us~v~~ !l•t1 0,15 INTElii'Sf PAID OATE .. 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S!Il!lliG IJ!II>Kf>Si AOO:UII N O!IWIO 1SOl3Z341l4 0,..':'£ ...............- 09-20 Z.011.!!0 •• Olll!•ou:nm S'SA mi:AS 310 13 ll$·21 z.ao AYEF.ItJ:. AVaw;£ •I~I!Ul Yl'AA·TO· UA!Ll CLOSING i!WKE S!HW!Y ~~&......... 6s~i ~~ .........u~i &::!r ..... 6i= Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ft,.J~ Sterling G. Senechal Ill Deputy  N m (IJ 0 G. 0 ui 57,519.61 0.00 2.069.90 "'0 ~ 0 PUG 111111<1/a. Ktoolll N OEIWIO 1501:!234!14 ~1r········· .. z:~··~xm:~t01sk1R~% 09·17 ~.WO lllmT (\j 0 fffiCT!It SEPllJ!lllll 4. IOU, 1X.1t I1.MlS AVAil.... lllTY !'a.ICT 1\1$ om:ID. (\J ... FIJI05 fROll OEIOSifS KIOC AT A A11' VILLI!E AVAII..\Ilt AS FOlltw.l: CASH DD'OSilH~AIUIBl£ Jt411[01A'f£lY Cll£IX OUOSIJ$-AVAILASLE £11 Tl£ SM!IlUSIHI:S$ MY. TYPICAlLY WllliiH NO IWIXXlfl)R!SI AlMS IC:fPT DEI'OSJn. M Ill£ FULl DISCtOSt.I!E Pl.tASt CCI!Tt.c' IOU! l.llCAL lliWICH. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  VNHJ 10·21>13 XHAHO 15Dl3ZJ404 69,1149.7} 11.719.61 '\I 0 N 0 !\! llOWitl l50ll2J404 Ol.lt ............... NU.IIl .. OEI'OS!TS A'lll OliiER OI!DilS ID·lS 2.061.00 ~H·moc sEC SSA 1'llt15.41 .11 oct!RI!!O OJ! 09-28-IJ J21.51 DilLY CI.OS!IIG 8I.I.Aia SU\'W!Y DAlE ........... t!AI.AM;t !llSlTHYAIWLE 1101£lllATELT mf~rOSmlr~·~~ ~t'l'i ~.~"MWl~~l£s. PlWE MOrt 1111\l HOT ALL 1olm'OI!!ST AT>!S ACC£PT O!I'O'l!TS. fOR 1l.U.Y ~llliiN lW'llmlS. l~LESS AN Eltl.l'!ltfl ~l.l!S. PlrAS!i >«lTE lliD 01H£JI ruom IH7 J,l4 lliTfl!EST PAlO 176,J28.Sil ,55 IXCU'II!Ell !IIi 11-ZHJ m.BZ DAllY CtOS!!«i!WAiiCE Sl.lm!l' 0.\TE ............!N.N!Ct 1>\Tt........... tlAIAIC£ D.\TE ............IlAIN!CE u-2a 't6.m.Sil 1?·17 76.JJI.l! 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"""' - """' ~ Pt..\<:1: S'l¥0ntroJI'da.~bmibrabchiiM'.!Mc _ _,_ _ d,,or_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ~ (SWJ ~bbvdoa _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ,,u _ _ _ _ _ . . . . , . p~~--------------------·~-----_J<.~ _ _ _ _ _ _.;...._ __ C'.&O:Ih!J&Itllct:l:!i1!Mnd"'bl:pi11twdont~Uk::uttJU)'f~lhcm:amU'fkm:orJalbc- ---------·-,.oll..... __________ "'""""'=-. Jo Hmk Ttua. Thbtcll.lnlb~byet~'lil,ofll\c.potliWr'Oflitdl'lt:'lnp'pctU~\Iidb)'hc•. Slw:ri~~HvriiCaWif)', blat f'tr.l _ _ _ _ _ __ SlcrlK~blr.tbrUt~.Ta.u Fw.S•------- .,____________ _, Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ./lt:r~J~ Sterling l.:t Sanactlallll Deputy  I!J 0 (") 0 0.. 0 ill {SEAL) STI.N STI.NAI\T, Counl)' Cle1k ...'\t 1P~~«> Cou~ No. On~l~COW•flM~altlhcr...Uhlhf­ ddJn:n:dtolM: dituW'Ok'W"''cdtllhc"' · 0 ~l 0 ....... N """""'---------------------------.....:.-O:owu:,T_, h:/rlr_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ &wvc.wll:ll'lsbtctib;i4'kltitt'lat.tbb: _ _ _ _ ~ c.m.»t...do.\ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ •• _ _ _ ....... _ _ . . ... u~oo _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ,., _ _ _ o'doc.,___.M.i11 ~t!:rn«lpfUnlof\Gt<~ihc4oetC-t!rnc•Jkdt0&)tbctrftlbclmlr.Ct1hro::of•lutht _ _ _ _ _ _ _ _ __ ,-.-----------~~~ct~bhtdt~ _ _ _ _ _ _ _ _ _ _ _ mtbnis f:i1bf,m.rm.w~-,.rne&f"Bcb.vlloffhc-~JI!a1J:ra.ldi!CWIF'PCTU~tlfl.tw. Shcri~Hutb~,TctU '"'''------"- •Onr.c:l!>bc!dOII'--=-==========-•"==--~ _M.vd =~Q:)P'fofl.hc•bovtCf:.tlkmfcfu:n~u. . . or!MUJof~~OttnUD41)'1ha;:(ll~~m. ~t-rCo.t'119'ofKarrit,Str.r.urTo;a,lrMrit: • =----------~----------~M----------------- ·-··------- Shmtr-Cor.Ntll.t, H~Covn!J, Tu•.u Confidential information may have been redacted from the document In compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas starling G. Sanechar Ill  Ill 0 (!') 0 PROBATE COURT 1 OM 1). JANET F. MCAFEE, DECEASED 39693>401 0 NO. _ _ __ ~i ROSEMARY I!'OLTYN,lndivldually§ IN THE 1'):\0BATE COURT ANDJAKEFOLTYN,Iadlvlduafly§ ONE '::1' Plalllllffs § § 0 § N § c § § OF N § vs. § § THE OMS GROUP, L.L.C. AND § WOODFORli:ST NATIONAL § BANK § liAl!RIS COtiNTY, TEXAS Defendanr:s 1 PER WRIT BV CERTIFIED MAILED APPLICATION FOR WRlT OF GARNJSBMENT1 PER WRIT11!1 b-1 p)f' 1().!1-2014 TO THE HONORABLE 1UDG!! OF SAID COURT: COMES NOW, Rosemary and Jilke Foltyn (herelnafu:t referYed 10 .. ·~obors") 1111<1 milko:< this Appllce.till!l for Writ ot Oamlsluncnt againSt Tbe OMS Group, L.L.C., and Woodforest National Baok, (hereinafter referred to .. "Garnishees") 1111d, in support hereof, Glllllisbora would show the~ the foUowing: I. 1. Plalnllm/011mbbor& ""' Rosemary and Jab Foltyn Appl!ca~on !'or Writ of C•mtshmont Pagel ----------------------··-·-·-· Conlidcntial information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  m 0 cry 0 (l. 2, Defendanll0611llshee, The OMS Group, L.L.C., is a limited !labUlty company doing 'business in TelCliS and may be served by serving its ... regi:oterod "'!•n~ via certified mall, retum ..-ipt ""!l'est<:d.. Corporation 0 Service Company, DIBIA CSC -Lawyers Inca, 211 E. 7"' Sl.reet, Suite 620, N 0 Austin, TcxM7870l. N 3. DefendllllliOamllhee, Woodforost National Banlt is a privalely held' bank doing busui..s in Toxas and may be served by pibeibis, 25231 (}rogan's Mill !U>ad, So ito !00, The Woodlands, Tw 7138ll. 4. Venue ls appropriate ln Harm County, TCX~~S b,..,ause the Judpenl was rondered in Hwrls County, Texas, n. 5, On or about March 21,20 I4, thls Cial se<:Utily number to be 4S4-8l·:X:X:XX. Oamishm ,..e not seelllect on a Judgment. Garnlsbo11 I request that ifClom!shees, The OMS Group, L.L.C.,lll!d Woodllmst National r l Appllcatlon lorWrtt of Garnishment Pagl3 Confidential information may have been redacted from the document ln compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy  ...('1 0 l1 0 Bonk are Indebted !0 Kenneth Cooper McAfee by any ac<:ounl or olherwisc, tt'l that Oarnishce$ hold and allow Oarnishor.l tn garnish ssld belongi!'S)I. O&rnlshors also rcqu..t thilllf Garnishee:! hold poHe"lons in a !Siecy dcposll ... box at any bra:nch that Garnishee:$ hold and allow OamlshOTS to gamish ssld 0 ('.! belongings as permitwl by Jaw. 0 N v. 8. Thla Application is supp!url, oJ\c:r considering 1ht pleadlnp, !he motion, the respo!Ue,lhny, and thcOtEU"""'ts of """'''"'• is ofU.. opinion that rho Plolnlilf•' S l~dptnt lo h,mbr ORAN'I'.lm. DoftndOII~ Kcnl1e!h Coo!"" MoAIU b liable to U.. Individual PWnd!!i for ..,.ing tho doalh oflheit daugbrer, ~en ..d credits, jlldsJneot In !he .lll!Ount of S!,OOO,OOO.OO. !Or hot Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  Clllodohal pein and>uffttlng duo 10 the dcelh o!h, judgment In !he Olllount of Sl,OOO.OOO.OO, tor b~ 0 N omotk>nal pain and su(!'m lbo dil< Ulls IUb WI!J !lied on Pci:>romY 23, 2011, unllllho t!llll orjudgmco~ poll·judgmJ!IIY ........ ·' ...... ~ ron oma ao• 1m · · HOOilON. mwmsH,.. -------------·····~·-------· Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  m 0 J.ri ... 0 (\J 0 N EXHIBIT 2 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  0 N (") 0 1). 0 iii Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  N (1l 0 ~lllllllliiXY Am>ual Report 0. for 0 1'1 TilE GMS GR01JP L!..C SALARY SAVINGS PLAN This is a O\lllllllary of the annual report for the TilE GMS GROUP LLC SALlll\Y S~VXNGS PLII.li, (Employer Idetxtification No, 22·3505264, Plan No. 051) for the period January 1, 2013 to Deceml;>er 3l, 201<1. 'l'ha tumual report has· l>een fi;tei! With thp:iby Adlo1Zlistnti.oll.,. as riilqu.~~! \Wa•r N 0 .·-<' .:;t.l):•H\'!IDPl<>!{Ge RetireiU&ilt Income Seour:l.ty Aat. <>f :1:974 '('i!!U.SA?. N BAS:tC PINIINCIAl. STA'l'IDIBN'I' senefi ts under the plan are provided by a trust (benefi te are J>rovided in whole from trust funds) • Plan expenses were $948,504. These expenses included $946,504 in benefits paid to participants and beneficiaries. A total of 198 persons we"e participants in or benefioisrieB of the plAn at tbe end of the plan yea>', although not all of these pe'rsoile had. )let ·.·~ariled the right to reaeive benefits. :ir'ne ;'vaJ:ue .i:>f plan IID!'iits, after ~Ubt:ra:otfng>'}ill.bil:i't;l,el\; S~ tolls '·'plu.; 'o1iie'.l~:i,a53,:2ia'· ·as of' Xleoell\ber 3:1, ZOt!f eomparetl·ceo· · · s20,J80,393 as of January 1, 201!. Duri~g the' plan year the plan experienced an increase in its net assets of $2,972,820~ Thi& increaee includes unrealized appreciation or depreciation in the value of pla:D assets 1 that is, thG difference between the value of the plan • s assets at the end of the year and the value of the aosetB at tho begilli1ing of the year, o:r the eoet of aaaet•· acquired dudn!J the year. The plsn had tot.al income ;:>f, ii;!,9'U,32.4,, l,nJ:>lUd.~Ag empl,ayer contributions .of.. $:_~9)~/)0 1.•. e111pl;oyee contribution$ of $1.~63;191, galonii ·of $U3;4.76 ·f~:om·· '·,: . '.~ J::he i>au of usets and· earnings from inveotnieots of ·;; ... , '" ;'$~~~74,85'1. ··z YODR RIGHTS TO ADDITIONAl. INFORMATION, reedve a eopy of the full annual l:"o\1 have the right to report, or any part thereof, ""request. The items listed below are iocluded in that report: Ail accountant • s report' aud A$ sets held' for investll!aDt. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Sterling G. Senechal Ill  N .:- ·;,-• N (') 0 To obtain a copy of the full annual report, or any part c. thereof, write or call the office of 0 Mr. Jerry Korn :li 5N Regent Street, Suite 513 .... r..ivingaton, NJ 07039 You also have the· dqht to recent should be addr,.ssed to: u.s. Depnrtmant of Labor. Employee Benefit• Seoux:ity Administration, Public Diaclosure Room, 200 Constitution Avenue, Nil, Suite N-1513, Washington, D.c. 20210. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9129/2015 Stan Stanart, County Clerk Harris County, Texas  :f{~· ·: TheGI.ISOtouo&~~·;.... I1) T01'AL PAR11ClPANTS ACCOUNT DAUI'ICES ll0,l5!.59 ~~~~ ----·-- ' nt),l5J~··· ~,.,...,..~.,'i'~ ACCOUN1: CHANGE WAS TB.E RESULT OF TiiE FOLLOWING: :1010 UHREi\1.12£0 AniUI)TMF.NT TO MKT 7.310.65 3070 011110~/ID INCOME :rtO.ii> Pbn C"Pian'l wu "'"'bli,~ed fut s ~tn amelllkd and ~:~ltd to cumply \\t\tb the finaf provisinnx ~nd cff«1ivc d.:!tcs of tlt.: Eeonomk Grawth :md ·ra~ RdidR¢eOll!.::lUalion Ac::t of lUU. ("I!OTRkA") end the prO\Iisiom o(th¢ Jub Crcutlon nnd W-orker ' no:.: Act of200Z ~·JeW A.~ "l. 0 11\!a Sutnlnluy tlimi1h,. )W wilh • descnplioo oflb• PIAn and tb< b•duatfdU.oilhls Plan is biiSCd upon tb< c:ondltife ror FeUcrnl inconw- tu pwpo!e~. 7105 SUMMARY 0\!TLINES Ttlll WOI\K!NtlS ()f THij Pf~'IN ~NO IS NOT INTENDED TO RESTAT1!1HO'fERMSOFT!lijPJ.I\N, THF. RIGHTS OF PARTIC:Il'A!ITS UNDER nlnPLAN'WlLL flE OF.TEIL\iiNF.D SOLP.LY SY THE PROVlS!ONS OF THF. ~LAN OOCUMI!N1. ll' THI!ll~ IS A CONl'LII::-rer:TWR!!NTiliSSUMMARY ANDn-IEP(AN, THENTHETE!tN!SOPTI!l!PLANWltt i~111esnUy gov-•HP!sn opriDN,l>OI\nlc•il"cC:o(•pany1 :Thd'.lm "'')' be read dt; !lie C.omp:my•s ti\lingstnn otlice. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  I. NAME Of PLAN: TilE OMS ORO\JP, L.l..C. SA !.All.Y SA VJNGS PLAN PLAN SER!AL NO.: Oil I ,..<;! c PLIN ADMINISTRATOR; THE OMS GROUP, L.L.C. .S Nurth RcJS,Onl Str«~t~ Suite: 5ll N 0 Uvinplon. N1 07039 N 9'll-l35·5QOorllst N..ANY8AR: Forpurposc• PI"' · Yeurit a 12·monUi period. C:nding"on the alion t\hh.i~cnraty PAte~ l, 1'RUS7" AND TRUSrEES A Trust hu bect~ t'W~:htfithed to fCCd ..>t CQnlribu!innA mfl.d.e uudl!r the Plan. Al the titTtt lbiJ SummAry w.;u prepar.ed. ihe Collowing fndividUllft w~re :~erving as lhc TNStO'Cfi ofttw Trusr. l:!bMll ll!lJi!NESS 1\l!DllJ!l!S Jl!AAY KOliN S llonh l!egtor Stre<; 'Suit• 513 TIMotHY J:DeNoalll! Lirln!!!tOl!, Nr07llJ~ ' 3. ~DMfNISTM110N (!P Tlf(! PLAN The Plan At\ministntlut wm e:dm.inU\~r tbe Pitm and wUt be teqlonsib1-e. rot k.c~ing th.~ t«0 ~. 0 N t;;· . WN'iRtiicrriof{s. (<) EW'f,OYEE DEF!i/IJULS When you ~come ;1 Ptulicip3nt in lhec Plan, Y\fU mma a.4o aulborlt.e the amount ufyour Bn.lary you wish to ~::fer~ o. contribution to lhe PJcn. 'T'be:3c contn'bU1ion$1.1fe whatcvor pol1ion o( your compensation you cboos:!l:l to defer up k.! n mu.llimwn of Udy (SO%) pt:recnl of ynurCompe,rwuioll (but Jnno evt:l\1 !hall your 401(k) s~huy def~al c;o.ninlrntion in a ce.ltndllr yt:ar cx.::ced .si~lem Tht'1UUJ1d·Yivt Hu.~~1 ($16',S00) Pollnrs t'..-.1010 all!l20ll'). 'lli<·Compa!'J', stits·di$cte!!qo,mAY1"'1i. YOI\r, yoU may btl endllctlmotbOPI•nY""!•l'®•"'''"'"'· Th«ills odjustmebro by !be ~of.~. tryou m cUI!Il>i< nnd • .-. initoh--llP)ll' or ""'h olhot timo t>ber of each yevr). AdminisfC¥1\lf' mt'dly~t)tn. $'11$pend wiibbahllnt authnritntinn. you Ny elect to resume 401()) s;ll:l!)' deferml contribuUons at any Entry Date {tbc firJt day of JonU;tl}', April, Jui)l and Oc\Obcr of c.cc:h year).. by notif"yinslhe Plllll Admiu- istmtor ill \Vl'iting nt l¢a.it ten (10) dJ:Iys or such other time ['K:riod rk!!WC'd by tbt Pbtn Admlt;Ut:ator, prior to the tiC."tt Enuy U:ue for whi'h 1M tlcetion (0 rc.5ume suluty dcfcrmJ oonfribtllions U. to be eO"eellve, Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy  In accordance. \\itb th~ fk:pAruneol of Ubor•s requircmenU. 4:0l(k} saJary dc:ferrat fl:onttihut.iOnl madt- by yon wiJI bt f'l1'\'l·::uded ro lh~ Trusl"s for investment t.Ui proorprly as pouibft- after lhey bavc been withh¢ld lind crediu:d 10 l'OUt :t:t.lary t.ltJCrniltt~Owt\ und¢r the Plan. The Code pi~ a lin1iLoo the MlOUUl of 40t(k) &DluydcrcrrAI contribution' which nay be m2dc in nn)' ooo Plan. Yut byl\lt!hl1 ccmpe.,.tcd l!"fliciP>nl<. lf)'Oilnl< affected, )l(lU wiU be nised of dlt' iimirtn1 -efl'celh'M'cllclrf!UmYarandiUJ)'EimoWtllC011tributtdtoyours:Waij'~~aecount.wiJI.bQa.dju$.t· .nl m:«mllnply. Ally,~ dUtbcd limitswl!lbOrelll;n"'!f!>.""'.with11tf\'/o . •C:hnd on<:J1>!£t"\7)moolhonftiot'me'<)ldoftho Pl.., Year oru!,willbcoon~'tiolt'llie~ · . : •\;>Jni,inrh 'ihc tiplo)!CC •vllodutiJla th• Plnn y.., orptcceding Pllln Yoatawned mo(S%Jjl0m:ntof.tb«l<>llll YllllllJIPowlll' o(tbc Com-pany; an l!mplo)'t'C wbo dulillp.tlu: ~Plan Year hod ••iul•(Comf'!'~l! .lf~ Complll)'on ot'"iend'.oryoarha.!io in.:xew ofOne Hundred and'!'.. Tho~s..,d (Sl IMOO} oOUnrs rnrCon~nsotinn corned in 1.009. 2010 Rttd in lOt t forlbt ~or pcdnrm.in~ lhcdb-crimin:~tiontesrtuA .tel fttrthurnier S«tiotu4QI{k)lll'kl411l{m}onhe Code~ was llMrlp, 'lOll ""!Slb<.Cflll'lo,l"~ on,lhcJ.,t day pf\hl: ~Inn 'lcllt al>J>l~~ a.Yt;or of.~\:o · ~dng!h'ePlM:YilJirtO'i>o.,tiutdi.\sli•relnnliyCoti>p..yllllP<'l>;ltSecllon6o)·wti... co'i"''.~Yl¢·1idllf~"!,C'tf. and !fumt1listn <•t'lrn:uij,C._rur·~ COmpaoy, doe>nol'pl..,c tM tmploY"O' a:tola! illon:~ the . . . highly eompen:w..s' emphi)'OC'JcwL The. m:u:inium amoum: o( ecmpt.tt.s:uhm 1hnt fll.ll)' be t:lken into uccoont in detent~iuing ;wdlor aU(tl;atinQ Cntnpo.f'ly .:tJmributions tu tbe Pl;m $halt be: Two Hundred and Forty~F'h-..: Thot1t11nd (Sl4S~000) ';) Dolla~• for tt.. lOIO PIM 'I<'Jf und may b< llr!•t~tlllll'l!>n.oam~oolll!-belirt!ll«ltO OOI~o~cddf!rin¥1~~pcriOfj;~.fin Woli }1>U ore al'.iillc!fuul!·m ihi'J>j'" Mdli>r clii;lbl<;> wniob, '"~'<"""""'u!tl qtttof >llOh.a Honl.rup dlstribu~on, tb< ufel»>borrulcs oflhcT"""""YRtm. (6) oro.Ua, Th<~<•llir, .Yil\i ma~ lt>cnti:t lb< Plan on ; Ap.n, lull' and'Oqobcrof ~·l'Wl id!or tho ~iy sb. (6J monilnv•Pcniion. tb) A GS S~ I>ISTRIHtrrlQNS tf )'OU haw. attained tln! ~~of fifty-nia(l. Md oo.t4udf (:\9!-;). yuu mny requc:st ia 'A'filing that the Plo.n 1\dnlinl:otro~tur apprmf!.d,hy'lf><..C•~•.""ec <•tl}' Pfan Y•=t·)'< lOX ott ;ill eatly witl!drowols front all quallf..d plam tllltt arc lnclulian not bo l!l!bjcct to lhio ex); 0 N Di~tributium, xu: :t result of !.he- P:u"ticlprun'A: denth; !"' :r,•" Db1n"butionsJ~:S a result nf tho Ptlrticipt~lll'r pmnnnevt diubiJlty; O!tlrlbu5ons (tom fhcl'l>n af\cr yaur ,.Wimllon fbam.R!>icl! !Aalllt'C !"!ir!;t~ fQU ill thO " Jbrmofst.i»WI\Ilti oqiml periodic~ JbryaurfifirO..m~ll )'Our llifi.-d ro!il,.nent ploa orio !l!llndMdtt•l Retirement AC(,O\tnt the Um!tnployrnet\1 COlnpcMntion ~~n1mdn:'1C!nu t~f f992 n-quin.-s \hn1 the Tnuite\ withhold h¥enly {20%) pcrc~lt of IJ:u: di&tributiol\ (()~" inoon~ l!iXts. Und~r '"ertain circum.itJtnca:, all or a punion of a distribution m»y 1101 qtulify !or 3 direct ttotn>rtT or mlltwcr to another plan or l:ndMdualltctirc~ mont Accoon.t. Prior In rc«iving s di.'ltn'bulion fiUl'n !he Plan. th~ Plan Adrnini'fb'ntor will d.::liver to you a mort dt::r3Ucd CJ5planation or the distribution opdou; twaltabft under lhc Pluu. Yotl shoufd <:Onsult with a qualified tnK o:nmicl be(or~ m.'\king .u rho ice regarding •ny di11tribution. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  8. Ylllrrnom.,hm~t u••• for Jl"rpcm ofth< Pian Is yourslxl}'·nllh !65th) birthdAy. .~t nm. 0 men1 1 )'OU WiH be tntitle.d 10 rweivc \be fiiU IUllO\l.lll t:TCtiiJt:d IO your Llcetltm\. Lr) 1ilf Pl>n.prmides !Iter dim:jbulions 11 retiteroouf may be nutdeln·U.. fonu ofu !Ulllp""m d!:illilrution. Tho •mount to be dislriblll 1""' JI.•~•• prec<'tling.l""'"~i•tr'll>Vtioll. SINCB !IACH !NDIV!DUJ\t.'S SlTUATIO!-i IS Jffl~Qt,l.ll;;J'T./S 1\EC!OM'· '\! ME!'IDETl'r!l/I.'TYOUCOIISI.IL'i;Wti:!IYOURTI\X/P!NANC!AL.mV!sGMlt'l'O'rifu1'il\i!NOO~ I'UL"R lllSTRffiUTION FROM TlfE PI..AN'. 0 1.\1 i. llfM Til BltN/JFJT.r 0 N Upon your doo.th, the entire amount ;-lt'dittd to your Accowll und~ tho Phm wut be. dl'>tdhuted lo your bcnr:ficluy in tbo. form of o lutnp-'Sl.lm distribution. You willbcP!"vidm,d. 1>1'1),1ioiuywiU aUIOil!'lricallfbo YG"! SflO'IIf(Uil...,.:\'00 ele<:tlllh~•.lJiiJl. ~~~?~,::;,. ;~ l'lo~ 1.\-..introD«l by fedm!l>.w'O® tii,.su.t!ifh<.·rt..>s fl sex. who is lawfUJ1y matriN to)'®, i& dCfittit ak 1n" tM De· fwse ofMillniOSC" Ad <,i'ub L. No 104~199, llO Sun. 24lil). l'hit bent!ftdnrr de$ig.n.11tiOn m11)' be c.h.ung,l:d rmm 11m.: f\l t1me 1\5 lnng ns the pt(lt»r romu aro t:Oillp!t:lt.'tl. rf no dtsif,n-:Hion is ln.Od¢1 Sl.lcll 011lotUll will hi: paid fn youn:poU5C'~ lffiVi¥1-(h Ofiwf'Wi.W: tO )biU eblhlrcn.and lfth!!rebc none. then 10 yuur estate, lf them hM bolm b change in your m~riral st~IUS._ it is yuuc ~~l>i~i~y lf? ·~~ a_ ~~gc of ll<:ncfiml)' fotm wiU! tb<.H1lnw! lte.oulrior t1hj'!ih.--aJ satus, iruclletnru ability nnd ~:roperitth:c, duoln rnr:ntal or p.bysiC>~J db:ftbilil)' nnd which will hnve beC'n t¢rtificd: t.:'l: by :u; independent physk.iau, you witi be tOUSUh:ted tube rttittd. UyctJ p~tp00e.y.ouv,¢,tlteme1n ~od yew oonml todrcmt'Jif,datc1 ~-~)'·CctR;lirt'R~·~ke ·;40j (~l••liri·:ddi:mil'f!fT/bNABOUTTlji(JM '!ltc T•~ il9,l!l\Y.:Olld fJ,..f.~bllil)' Aol ITEFM) _, Clll<:fTI!I'll.A ~ll>i!·.~loyoUo p!'J"ideo• mlnilimm conttlbulion foh!ll.mpioy<., iw1fclj>Jltinghu Pl.. tllat is a<.,.,•o to liO "top-h<•>'l''• If, during :.ny nh•en ycur. sixiy (GO%) ~tor murc: urUte tot1d ao:ctl\lnt ~leutes ofal1 Prnici:pant:S arc for the benefit of key em1linyt¢:~. (i.e., .,mc:w:rs. or rub$1anlill owners} the phut wiU be deewcd to bt, top-heavy. 15. /,QANS TO PAR71CUW11Ji With the COUJ'Ult rJ( tlie P.lnu 's TJU!ih!tlit you wiU be entitled to bQ.ftDw. fcol:ll ~ l~ &&J!1~ the v.dut nt,;s-our I!IC:count:b~'!UI.ttr l.lttht Fbm. Theinlnimu.in 3'tl'K)Wlt)•ou wilt bc·.~~tlt~·1.o 'bOJ:tow1fQ.Qi ~¢. Plou LtOn• Thouocnd (Sl,llOO) Dnlbm The !l!!!!iml!!:l!•mo•n• l"'1l wiU t;o.cntl11cMo bomwii<>ttllh< P!im wbl bo tb•lcucr of! Fiftyf:iO'tV) pe~nt nrthc Ye5tcd amouotl)f)'l1Ul" AectlttnlJJalancc llS oflbc valuation d.At., prhtt f\) tbc dale you llpplj• rnr ihc ~l'nt or Fifty Tha\lliend {SSU~lOO} l>o\bn:.. NolwiUtslaudiug Mytbing to the tua~ntry. the Fifl)' Thou,..tul (S~O.OOOl Dollor Otnotlnt shall be rodut!ihe wlu.>tlon·dnte lmmel in availinsyonrselfofthio P!Jo opllon, you sbo)l!d•o<;lifyJJ!•.PII>l'/l.!lm~· loz.i.......Uota}fln ui)I""IO det.,.;Jiowl\OI')'O1ied OVlY with Soelion 41J«e) of tile Employee R~'"'' Ac.~'fmt.h~~'~< an oppotiUIII\y:!t>o~oose·lil>tll . In''""",Vc;,mJ:«>~_for >~o ;j!iwo aW.t 4rolh~•d!fll.Jl!!;f$n\ri a fe. rrom tho end of t.ueh initint -peric.d. T'kc ext~ion nOOec shall il\di~1c ili~ spcciol ci[cumsurnw r.:q.uiri:ug mcro:nJJon i. or lin)~ !md the' d!'\<> l)y whle~ tbo Ploa ~tor '"~"''" to nnultr 1M llnal d~lon. !C lllcn> is a i d iuuawmg. · · Th< iP«!liouuo~or."""""' Cot !lie d.,lisl, ~pecifie R:fe«:uee to the $ltl:1inc:nt Pttn p«l\"ir.ions no whiclt the dcnint i& based. A iksa-iption of 1m; mattrio.J.nnd inrornl.:ftiun necn,ary tn perfe-ettbe cJahn and c:n t:\pf:J.. muioa of why such tnntcrlnl ~d int'C111l~ttion is nc:cess::uy. Wllhlo il"'Y {6U) d•Y< of n:eqlving a Mlie< den;olll!l• ol•lnl w{tplly orll•t!l;lly, th~ clol\li'!U'nm)' •Jll""'l sucll dtlnl i~·ivrnloi:'"d e.omotn liN r-·tbr-wldi>~·Ol!tk elaun is mOilc: 1h< •:Jl>it•mm m•yr~)ll! ~I"I~Jrovldn pailil,. ell pt..,_ di>c:limc""' !nC!odlll!llii>W'IlnU ~lmtn;cl:l; .;iilltotlv~ ·!0 Confidential information may have been redacted from the document in compliance with the Public fnformation Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  :""·i. i~ ·:; !D l"'l ti'J 0 C.f!!•lning apm<111>, MU • top)' ortbola!.,.laonual n:port (Fonu SSOO Serl..) Ulcc Pktolent of Loboran~ u"'ilohlo at tl!o Public Dlsdosure Rootn of thC' Employee Dencftu. St<:Wity A4ruin1urv.tion. 0 ·.t. • Obt:lin. uqon wrttted. ,.. u"' . ~roHrnt oC!I>e•PI.,, $Ctipfion. The f'J:nl Adminiflralol' fYPY l'n!l.ke a. I'I:!Ut:.m~blo c:hCif80 for lbo eopits. 'It R~ccive a 11Un1t11ary pfthto Plan'.;; .wwat firuuteitd r.oport. Tite Plnn Adroinisl.r:J.tor is r;:. quired b~·lnw to furn~1 c11eh pmticipinl wilh a copy orthii :'1Ulllmll:f)' a:uwo.J tepan:. 0 t\1 Obtcil'l., stnl¢tntmf tullingyou wbefbt;r you b.1ve n riglu to receive a pcru;ion nl your otmmll 0 t<:\\remt·aidatc. uiid If so. Wbat'youibeuefiln woula Oe at ytjtlfinOnntt i:tH~fdaiO if ,YOu N &tOp\\-ol'ting.undctl.bePJanM\V, tfynudOnothiM;Iniigbi:Oa~d\es~tcmmtwiU toUyoubowmMy""""Y"'""YJ>Ohli'"'IO"'o'klu.h:lve.o~rlJ!~fli> bow, whY thil wu.dol}C, tO o,b~.hs: ~tcs.pfdocumcnu cdndnr to ihc dc,!tiOO·~t~vf,chMsr~· Sn«-to · li.la"it'an'Y atnh,(-at\ Withtn tOrtai"D·ltrnc-~Cb:tnMi;. · · · ·· Under ERJS;\. tbere uc ~tcp:s you. can w~ to enforte i.he llbove rightli, 'for instanc::c, if you request acupy ufl1lundocuments:utd•tt latesiiU\rtu.'ll report &om the Plan ~~nd lionut n.'tclVt: them \~oithin t:h.irty (30) dn.ys:. yuu m•.r m~ sui1 in a tl:dernl court. In .$UCh s cua, the court nu1y mJUirt rhe Tru!itecl to provide the mnlcriuts and pay you np to $ll0 BdA)' unlil yuu receive W m.l1trild:ii. unless the. mtntrloin were not stnt becuuse aff\.'"ll.Sons btyond 1be t-ontml orthc Pl11n Adminil!trnJor. lfyoulmvt->tcf.tim furllaehet'Jcfitswhicb iJ denied ot isnored. in wbuk or in p;lrt. you may 01.: suit in a sL:It0 or (edcrnl court. !n addition. if you di:sngrec wlth the Pion Adminhtm:or't.: detisiort or(J_d thc.rcofccmcerningrbo qbNtiliod s::tnis oh domntk: 'rtlktiol10 oni«'oia modlt.loblld s!lpllorr o!OO, you may ni. suitl~.l\:dei>l 'CilOrl; ' · • . lElt>ll61>ldhor>P"l.'!iulrir1.anlldlleil>t~m1"""ruoP!an~moncy,o>l{X\)Ii~!i>c!lsl¢'ii;Aini< fnS)•.it.eli o>rlolo!ICe fif, tmti~.or t1.S. Dtpat1.1Mnt otLabort listed in your ~!~Ph~ ~irtt1(9!YOt,tb~f}iyYitin. · ~·:1'«~n;c.rA$S""~<,.ril)' Aaruinl,tr.o;,n,~_;!l<·D¥on~.U'.'>f. , :·;, :-~~"f~O!J~iilti\'!,~?".;r\v.Uu•·N,W.;W~lbill&tort D.C.10210. YilUtnl!Y'I\hi>'nblaln~nl)Ubli«UjO(Or, ll Confidential information may have been redacted from the document in compliance with the Public To formation Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  r... 2 }Jr;~;{,-;;~-)1>uiri£h., ~nsi!lUlllc<·ul!d•rill' 11<:1 ur.l974)•. \Joli«,S~•doli ';) ;,. (q04tv..J of•oyiiability tin riJJ.y llliO.S ymi·i....,f. ..·a'nlslifl or " )'t'urinveatmcm 'in.\inn:dotu sl'td decistom. To obo!in lhJs rellef. tbe Plan uwsr meet cmnfn oond.mons. Then conditions .uc. tumrnnrit..ad beiO\\I. 0 c-J Rroad fb:pgt:c( Invurattot Aftcrmtth•c:s. To comply wiih Scc:li(m 404(c) ~f ERISA. partic:ip3tUs mun 0 hAve nn opponunity to chom:t fnun a bfolld range t>finveftm~nt Of!tionll thG\ feprtit..'nt a .-o;oftablo dhl!lolp•nlll are. •llow.d lo uw.,llltI{<)<>rEIUl!A, partioipnnli ~m~«·i>o providclsiiffi. dent tnromu.uion '"make hribm1ed invc&ttntnt ~eisil)tl.S. Sint:t ;he Pbn doe& NO'f pru\'We apro--dcterrointd fiJ:tl1 iis.l ofinvcslmcnt chofc~ you~ the pllrticiptmt. sr<: reminttcd tbat yotl should requo1 and oblain 1111 oeccs.wy rmd relevant infurm:a:tio!l ~rdinu ony inve&t~ ment you an: ~unsiW::ring nnd!or ehoosinJ (e.g.. PI'OF{I>t~lus. pe~ncc histar:r~ investment objective$. ~:~o:pcnaes end lbes. vob1Hhy. etc..). Before- you t~k~ Any inmtmtntdodsioa, you $hoWd rtod and study cnrefuUy Wl Ofthe infann.1Uon ~s;arding.tbt ill~mcmt Rcmtmb\!.(, v\tu srf tlie one legaflyra..;n~·~·1.,\(fvll:o, Silt..,nonha:U..P!an Admllll>irul!tt(lh.n~ ~ .. ~lsti:A.r.i.i!~ot'Ond tlie truucc(a:) do'NOT otftrr nny.ad\1Ct wUh rttpttt to the ln\-ettnlenl oryour 1ecount ~iittllihetf Undettbe Phm. AU int"C!ftmc::ntdeubin:n1 bdona: tn the pt1rtitipan1. 1md sheu1d bt: b·ued un ~ch pun'clp3n\"1 \hart and fnit$·fcrm fin::uu:i:d ~0.11.\ $nd ll'C:cdll. L•r()('e,uing Your frn1:snne:ot hutrutUon5. Your IICC:Otli'U ectiviiy :md account $tlllcuteltlS: mny be viewed by OCi:'C'.S~in~ }'Llttr nr~ount tbroogh the office S)'Stcm. in tq(' JCT'l/CY C'(l)•, 'N'~tw Jmcy office or the Hotmon-. r(::(S$ off"te9t yQ_U am ftq)h) )"llUi J[Viill ltn: Wl;\'rkill}J bt{;tl't~~~l'l~-tte~if~·n;i~r~.S~·~~U,iu:me orcrntklns ~t:lo'cau:d 'ire your offi~ · 13 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ~~~~~~~~~----Deputy Stenlng G. Seneohef Ill  :; . ~-;l,~ /lf~'linre.wnr!;;i,~ in ·"'!Y of lhoofll.ccslilted b~ow, )'OlLCllll hovo)'OD~ln~.t.l~i!n>,tru'l(~"'\ P.\~<4 ·;;r.,:£{:V·jhrouflh lho·livintuton OpaiiU:oJio Pq•of!menL,. ~i>e o«<>niP.1~hei! o7jci:l!iJI!;Iho',\'i\lllii oiii)>bittg$tM. Mc;w Jr:my Jme,f City. ~cw Jmey Ool;'..ll R.31on~ florida Otccnwieoh. C.onncctiC!ut Ml!tttti, Florida Sptfugficlt!, P'CtiM)'Ivanb 0 N :,.\ttauuf ftois._ 1'1\ero·ara vatitJUs ~~~~~find fcca Wl).eintcdwith.~ &w~rm~t·iQ."'r:utti~.(e.g. 0 jiro;:miny or, a lnd~)·w1Udl i'li~ O.el~rge to N rOnSfOO tllt·fC4i:and·~ru;;s in ·m,il.tinit rour it:t'ltl\mtnt dUifi\OUS. J( you have :ny quc.'!Liml! tt.--g:~.nJing thil Nolk.~ pleUd t-001.1\cl Timathy J. Don<1h~ lU ('SOO) 463.-6230. t '~ 7 1: j;: y :..~ i' ~~ ~: 14 ~;.; ' Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  Tab5 Notice to Court  FILED 117/2015 4:32:36 PM - ·-~ ~'"l"ftY Sian Slanart Counly Cler1< DATAENTRYrs ~ ·, Harris Counly ANM PICK UP TillS D . PROBATE COURT 1 r-J 522 Cause No. 396935-401 C) C) INRE § IN THE PROBATE COURT (.). JANET F. McAFEE, § Deceased § IXl § C) ROSEMARY FOLTYN and § N0.1 U'i JAKEFOLTYN § § v. § ,.. THE GMS GROUP, LLC and § WOODFOREST NATIONAL BANK, § Defendants § H~SCOUNTY,TEXAS NOTICE TO COURT Comes now, M. Elizabeth Duff, counsel for the Estate of Janet Foltyn McAfee, Deceased. It has come to the attention of the Estate that Charles Storer, Power of Attorney for Charles McAfee, Defendant, herein is trying to access funds of the Estate in its Motion to Quash Writs of Garnishment, as set for he~l~gJanuary 8, 2015 at II :00 a.m. The Estate objects to the Motion as the Estate claims an interAsr:i~ these funds. Please see the attached Order Approving Inventory •. filed and approved by this Court on May 21 , 2014, referenced herein as Exl!ibit A. The Estate respectfully requests the Motion to Quash Writs of Garnishments be denied or stayed until all matters may be heard as the Motions all involve the characterization of the funds. Counsel for the Estate, M. Elizabeth Duff is in the process of preparing the Motion to Release Funds frozen by the Agreed Order for Temporarilnjunctions in Cause No. 396935 of this Court, referenced herein as Exilibit B. There has been-~o opposition by Mr. McAfee or his counsel to the Inventory or division of the funds. It is in the best interest of the parties to hear all matters contemporaneously. Further, counsel for the Estate, M .. Eiizabeth Duff, was not notified of the January 8, 2015 Hearing in this Confidential information may have been red acted from the document in complia nce with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Har ris County, Texas At;_~d G. . o lit St rUng Senechal Deputy  Court. Please see the attached Notice of Hearing, referenced herein as Exllibit C. M. Elizabeth Duff is unable to attend the Hearing however is available by telephone. Respectfully submitted, ~::chell & Duff, LL~ Mru{tL~ Texas Bar No. 06166880 210 Main Street FUchrnond, Texas 77469 Tel. (281) 341-1718 Fax. (281) 341-5517 Email: eduff@mitchellandduff.com Attorney for Estate of Rosemary F. McAfee, Deceased Confidential information m ay have been redacted from the document in compliance with the Public Infor m ation Act. A Certified Copy Attest: 9/29/201 5 Stan Stanart, County Clerk Harris County, Texas ~ ~~ .A ~rling ~ 4L ~ - . Q . , . , . .~_Deputy G Senechal Ill  'iJ Certificate of Service Cl "' '-I I certify that on January 7, 2015 a true and correct copy ofthe Motion to Release TemporBry C) 0. Injunction was served on all parties. Esther Anderson Anderson Pfeiffer, PC 845 FM 517 West, Suite 200 Dickinson, TX 77539 Via Fax: (281) 614-5205 Matthew Lipman Faust Oppenheim, LLP 488 Madison Ave. New York, NY I 0022 Via Fax: (212) 371-8410 Dean M. Blumrosen, Esq. 4615 Southwest Freeway, Suite 850 Houston, TX 77027 Via Fax: (713) 524-5570 Woodforest National Bank Registered Agent: James D. Dreibelbis 25231 Grogan's Mill Road, Suite 100 The Woodlands, TX 77380 Via CMRRR# 7014051000086589226 C on fide ntial information m ay h ave been red acted from the document in complia nce with the P ublic Infor m ation Act. A Certified Copy Attest: 9/29/201 5 Stan Stanart, County Clerk Harris County, Texas  vo&OP ~~(;:!(UP TinS DATI! No.lt69l5 ~.., JNniEtSTATitOP Ill Till: l'llOB~TB COVJIT JM Co-owa~C~J: NoM Docedeal'll =crut: SO% ConndcnUallnform•llon ml)' hne been redacted from tho dotument In complhtncc with the fubllc lnform11Uon Act. A Ccruned Copy A nut: 811011014 Stan Stannrt, County Clerk Harris County, Tun ~llNw~ Deputy Consuelo Arroyo Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A4d o Sterling G. Senechal 111 Deputy  ..., a A~UQtfl ... I.' 0 0 1nntMion: Tho OMS Croup, UC A-I)'PC: B111kuqcAoo>o"" """"">'CDNo: """->ccr911 n. II. ~ Toed \'alue of utat: 50.00 on d~ Q( de.~ Ill l.caa ~-Ma~poua lhn: so.oo SQ.QQ N t:o-.o'M!cn: None v o..cd.,.f,lllmn: SO% ., AcCOWJ~I4 loi!INiior>: Tile OMS Droop, LI.C !!'... 0 A"OUD\ t)'pr. 'Brokcrap Ac:co\m~ N AeeouaiiCONo: DI'-DX612 N ToL&I-..I~tC"ofUMt SO.OO acSac. afde~lh N Leu ~Untvtq lpoult IbM: so.oo so.oo u·1 CO.OW~~Grt: Hoo. OcccdtDI'J1aw-t: SOK AccoW~tMS lrwdnniol\! ln. OMS Orwp, LLC A~\~: Btokcqc AGOOWU ~UDVCD.No: gx ·~ae~:6'0.S ToLil 'W'Ilue ofUkl: $425,03-4.70 oad.ll&: ofdeath ... Lc.usurvtviDa~rJ~CUM~thln: S eo..owncn: Nooe ,,.,,'121-:{.')\ SI70,6Sl.ll "' 1.·• Aooou:zrtl4 ~...~ ~~ ... Oceedcut'alnt~ S~ ofOOZIIInaDI~ ,C.1r\Mo loniMion: Wollo Poup Nallooal BIOI< Moow11 type: Ch.ccti:Da Mcoun~CDN'o: ~114 ToW vtJ~,~, of Uole't: $519,76 on~~ or dca\h 1.ct.11 nrv\vlzla 'PV"~ lllww: $ Ca.oWDm: None Dcccdcnl'l (DtuRt SOK AccoWitrt INiil\llloo: Wood !'oral No~onoJ Baolt Acco\1111 type: CbccklDa. opc.gcd by Kcn~~cd! Mt.Afail dllrlas PIUTiqo wilh leU(, on So:piOIIIbco' 29, 200?. Acc;ouar/CD 'No: XJJCaU404 Tc:a&l -,.l~ Dl um: Sll,l.SIS,9l oo ch~ of eSc.til La1 Nnivlri&IIIQWOaben:: S $19,121.<46 Co-owncn: At dw ofdul.b. •aac. ~.nt. Ullcrcn: .SD'K Conndcntr•llnform•lfon m•y han baen ndtded rrom rhe doc:umenl Ia c:ompllftnct wllh lh1 Public: lnnmnallon Art. A Certlned Copy AIIOJI: 8/lO/lOU Stan Stanart, County Clerk Harris County, Tu•• Deputy .•.I Confidential information may have been redacted from the document in compliance with the Public Infor mation Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A~G Sterling G. Senechaf Ill Deputy  --------· .- -· - m C) 2. MOTOR VJ:BlCLIS: Cl 0 Vehicle II Cl 0 Dcocripcloo: l006MmlaMI.tm(MX·'> c. Q. ~ Will: ''"'''"'"""''nax.m ToW VIJ~Je; Sll,l30.00 an d1tt ofdc:t.th 1.ca NMvtoatpW~e•h..-c~: sq,4Jj.OO> s6,m .oo N co ... t:o-G~:Nont Docadcnr'l fntant: SO'ti C) ... Vohlolci'Z if1 ~ 0 Dcocrlplloo: 1959 Mm 12.m.oo Ill Co-o'llmff'l: NoN 111 0 Ooc:c:dc:Dr. lnlui.C SOM. V~ltU De~Q'tpd 12.145.00 Co-OWDcn: Nont Oa:.dtnl'•ld~: SOY. 3. HOUSI!:IIOLD l'tiiUIISIIINGS; IIOUKJ>old l\lml""' aod 1\Ralolllnp 114,000.00 TOQIV~IIC: Sl4,000CQdalcofclcoll1 Lea l'lln'lvLca rpoUMGlarc: t<7,00CI.OG> 11,000 ~Noac DoccdCDI'J l.att:ral: ~ ma.sn.ts oaMirotdutb SEPAJtATE FROWSTY I. REAL PROPERTY! Conndonlh•i information m•r hvt bun rtdlded from tl'lc doc:ument In tompllanc:• 'With lhe Public lnrormnlhm AtL A CcrllOtd Copy Allest: 8/ZO/l014 Stan Stan art, County Clerk Htrrls CaYnty, Texas ~llNw~ Arrovo f"'nnctt<>ln Pcputy Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A4d Sterflng G. Sanechallll a Deputy  (j) t,:) (; (l u. ul :::..;z ~=:~Gb.lw 10 9IOI.o69).7019<61, ClUJ lD 101617 $64,!JD.OD Toeal Value: S64,$SO.OCI = Co-owurs: NOM Do-1•"""""100!\ l!.r;ss]§DI!SCRD"l10ll· Ia~ t. Mmiorda Cogcrty- 0.003136, 0010619, Sab-Pc~ll Ou U.a.I11Jl, 5q'll: m m Sl,49l.OO ToDJ Val~: n,49S.DO C) ,.. Co-aWIIcn: HOM ~tlAitnl\: 100'K Cl .. CASU IN BANXS' Ac;CO\II"'III lolliM!on: Th• OMS O. LtC A.OOOI.IIM t)'pO: Brokmaa: A.t.cDUrtl A~~'No: IOQI;.a;:t479 $3,440.01 To\al Va!•: S :3,440.01 Co-oWDCn: Non• DoccdcDhlalcmt 100l41 A~t•z lAnfiULiOD; 'Jk OMS OraUPI U.C Acco\M\ 1rpc: Brakcnp Aoeo\1111 Al:coaaiiCONo: X'l.:ll·.n.Oil 116,<20.66 Tom.! Value: $36,420.66 Co-oWOCil: Ne~:~t Docfdonl't !Dtm:J1: I 00% Conhdcnll•llnrormatlon may hnc bun ndaclcd rrom thJ do~vmt"lln tompll~nco wtch lhc Pr.ab11c lnform•llon AcL />. Certified Copy />.tltot: Bfl0/l014 Stan Stanart, County Clerk He rril County, Teras Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  ... ~ 0 _, 0 c. ~'""' ~~~o: 'na!VUut sa ......--ua,..,. .-..-..-......u.o ... ., 'I .N ~­ -·~..... 1(011 " ~ -''" -Dc\01-~ ~""'-la'oDplba U'\ 0 N N "' c:o_,- ~lf'O.IJQIIIICICC+40:f Tooll ..... ll1,711JI ~·-...t:IVOM ~· TOTAL IU.UU.TJ.IIIO'acn' 'J'Plit,yALQ19'J.UAU 1\t--.l"""afatlltl&totl•c~~P.....t»JPIP,n'.n · noiolltpcoiiOI-.IIioaCO!IIIool.,.....,,....,.~.,.slrloaox7, ~-l.lllotc.loo ..'l'l"""'' ....... ol_.. .,?, . ~ ~ ~Dtda•a.tNotJ-a ?ohl~Mo.Mcc. Dt:cautd tlltl JINrl Conndcnf111llr1fonnr\tJon mil)' lrua been ndKctrd rrom lha docunanlln comp11lllntt w~tb tht l'ubllc tnronn11llon Act. A CertiOed Copy AIIOII: 8/l0/.1014 Stan Stnnart, County Clerk Rarrft County, Texu ~Jr~ANwrr Consuelo Arrovo Dcpuly Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  .; liTA'IIOP'mW e<>m Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy  0&108/lOH IIKD ''lO ru 7lll243LLl Lov O!fioe llJOOti_Dll 06/07./2011 10:58 lftc:lleU t. Duff Attorneys at Law fAX)m341m7 P.004f011 l[l ,.. CJ (.:l n. Wldlll' any address rela~ to eitheroi'them, wch as a puvlous residence, .rehrtion,repre5c:ntaliw, or 0:.1 sttomey'a addresa, or con1pany which clld buslncas on behalf ofol1her Kenneth McAfee or Janet F. Cl McAfee or which wu owned In wholo or io part by oltber or both of them. The addre&Se8 include, ...Lrl but are not Umlted to, the following; If) I. PO Box 66352, Houston Tmw, 77266 t'· ~· \li 2. PO Box 460786 Hollllo.o, Texes, 770S6 co Cl 3. 66SO Falr11eld Stroet Houston, Tcnc"'• 77023 ,... Cl 4. 2119 Tangloy HoUSion, Tllltas, 7700S WQOJ>liORJ!:ST NATIONAL BANK II) • !JJ 0 Any and· 6:u::~ds Ill WoodforeatNatlonal Bank aocounu, Ill ofwhlQb 11n1 ..•::~~. :::~:. . presumed to 1:011tain cammunltr,:tut~df~l!'i/ar. filllds bclollgina to the Es!ate, (l) in the n11m0 of .!;.::· /;~.'·:~A>. ·'.::=.=:·... .I Kenneth McAfee or Janet F. MoAfoi:.rifiiivlduaJ,bi( {U) K01111ctb McAfee BDd 1anet F. McAfee ~ .·.-.;- .·. ~:~~v . .~ ~;:.~::;;:. Ill jointly; (ill) whloh names one or both ofthem'ull. s!gru11ary;.(iv) v.:hloh conlalns f\mds in the we, I .:·: .~:... .·::.':~~- .~H~i.~.r:- c:ustod)l, control, for the bene.ftt, or on behalf of Ketiil~ McAfee andlor Janet F. McAfee, .. . .. ~~~ .::::. lndlvid\lOily or jointly; and (v). 1111dcr any address related to ''~jJi~ o~.tj~rid~ as II:;JltOVioue ·:.;:)~/f ~~~~:.::::..:;:~:: ..·.·=·;~·. residBDco, relative, repr*ntatlve, or attorney's addreas, or company which clld ~~~:on.,~~~-f .,, either Kenneth MllAfec or JanctP. MoAtie or whleh ~owned In whole or in put·;;~QrJih :f:~: .,i" i ····!>.·!;,OJ ::~?i· !{/t . .:~:e·:r·::~:::: of them. Th~ addres3c.s include, but are not llnllted to, 1bo following: ,;:~[:';' ·~t .,;~~: // a. PO Box 66352, Holl!txln TIIXU, m66 ..:}~ b. PO Box 460786 HoUltOn, Texa3, 77056 c. 6650 Fairfield S~t Holl'ton, TCIXas, 77023 d. 2119 Tangloy HoWJton, Texas, 77005 hrJG Con fidential information m ay have been r edacted fr om the document in complia nce with the P ublic Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Sterling G. & nechallll  Of/01/ZOLL no '' n nx. 7132ztllU Lav Otfico lil)005/0LL, 06/0712011 10:58 Mitchell &Duff Attorneys at La11 P.OOS/011 ...11) BANK OF AMERI~,:.·~·t.' . Ci (' • .; 0. 4. Ar.y and all tund.s 111 Bank of ~:~;x: accounts, all of whic:h an: C() ·:;·;:··· ...·.-.·:~/~ .. .i;::· ;:(:,; 0 prwwn~ to contain community funds and/or fundi ~~!IJinll !547049..{)23 b. tfun~to;23 ·:v •!~·:'.i\ .-' 6. /Uly and .iiii:~~ In BBVA Compa.n accounts, Including Laredo National ·:.·< .o:·.:,. Bank. aU of which tu't: pr~cq,l!l,Col,!;in collUDunlty fuad.s alldlorflmds belonging to the Bslatc, -:+·.·:::~:··:·;· (I) In the name ofKe.nneth MciAti:il.o~ )~F. Mc.Afte, Individually; (ii)Karmoth MeMo cmd 1enet I: AJr«IT.,.poni)'III)IIIICIIU .''\ :';:'>:/·:,;:.~:·:;; 4 of II i· I Confidential inform ation may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 '''''""""'''/. ~'''' \ OF lf4l'//. .$'~~· •••••••••• '(-?~ Stan Stanart, County Clerk ~;...... .·· ;::.~.·/;..:;.-.~..: .:-~: ·.. ·.~~ ~ Harris County, Texas ::.:::;,:~~9.:. -o· ...... _ - .·. :u: ,. \J.)_ • ~~ :z:: ...·~- • .. ~ ..... ~ ./0;.44 Starting G. Senechal Ill _Q Deputy ~~··. ~~~IJ f:/ .··~~ v~···········~~.Jt.~~ ..,,,,,,,,,~ ,I- ,,,,,,,,,~  o~/0812011 no 1121 ru 1lliUllll wv otUco li)005/0il • <} 06/07/2011 10:58 Hltchell 1 Duff Attorneys at Law P.OOB/011 ~... ~:0 C1 Ci F. McAf~jointly; (iii) which name• one or both oftham as a algnatory; (iv) whiQh Qonlains funds in c. the~. c:w~tody, ooncrol, forth~ beoofit, or on behalf ofKGIIDCih MeA!= and!or Janet F. MeA!~, (J.l . 0\ . Cl individually or jolnUy; and (v) under aey ad.dreu related to either of the~~~, ruch as a p~~l!,S :,;;',:::. busin~,f~~~¥:~:{:g:, l.fl t··· ruldence, relative, representative, or anomey's addreaa, or company which did If\ either KenncthMoAfee or Janel F. McACoo or wbi!Jb was owned in wh~:~le or In Jl¢b)i~lthcr orbOih ,.. (I of them. Tho addtuses ln.cl\lde, but ato not Um!ted to, the followtns: ::::;.ii:::·:: j=;;,;·> :'t' ~·I ('(' a. PO Box 663~21 HoUJton Texas, 77266 (:' ,.. b. PO Box 460786 Houston. Texu,:77056 C1 ;•::/' c. 66SO Flllrfiold StreCI Houstoni'T~!_}7023 ~ d. 2119 Tangley Houatoll;r ;Il&~~ 7700S,,,i' ', :·: .. . ·.·· · :.... I.{J .~ ·I 7. Any and all fUnds·' 11\:Wo;J~.;Farg!l '·'·:;>" ·• .·:... ~~. 'tM. accounts, Ill of which are Ill presumed to contain· commwlit)' funds.~!lt'or fimk~lleiooglng 10 the EaiAtc, (i) In the JWI\O of 'I .:.l;:;~yt... ·<:>·,·,. . ~th McAfee or Janet F. M~~OC;''liiili,Vii!ually; (i!) KC!IIIcth McAfee and Janel P. McAfee ·r-."' jointly; (iii) whi~h niUilOJ o~~,~~;~dt)(lh~ ~a slgualllry; (lv) wblch eontaln31\mds In lh~ care, custody, control, for the benefit, or ~:~n behalf of Ke!IIIOth Mc.Afeo and/or Ianot F. McAfee, individually o~..j~Uy; and (v) under any addrua ~latccl to either of them, BI10h as a pJC'iioua mldonco, ~j~,·~1~01rt4tho, orattl)Juey's addren, orcom,l)toey which did bu5ineu on behalfof . ·.;, e!th~~~iili~: ..,,· ¥~:or Janet F. McAfee or which wu owned In whole or In part by eitheror both 1• : 'of.;lh~'rJJc.~es \naludc, but II%C not limited to, tho following: :~~;:.r:j.:;-;;:'i:..;·:..:.. ..· ::':.,· .:. ·· a. PO Box 66352, Houston Texa9, 77266 b. PO Box 460786 Houston, Toxas, 77056 c. ~650 Fairfiold S~et Houston, Texas, 17023 lotiO Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  OHOB/2011 WilD 1121 PAX 7l3U431ll Lov Office ~0071011 0610712011 10:58 Hltchel &DUff Attorneys at Law G'A.Wll13415517 P.0071011 ,.,. V.) C) () d. 21 I9 Tllllg)ey Houston, Texas, 77005 Cl. c; CITJZENS FINANCIAL GROpp. !NC. C) ll1 8. t"' Airy and aU fuod!llu Citi= Financial Group, Inc. 110001111tJ, all ofwhioh arc lii presumed to contain COilllllunlty .funds arliJ/or .funds belong!Da to tho 'Bstete, (l) in tho namo of KCD!lcth MaAf~ or Jlllll:l F. Mt:Afc11, Individually; (il) Kenneth McAfee and Jma1 F. MoAfee joilltlyi (ili) whiQb nmnca ono or both ofthem ualisnatol')'i (iv) whioh contain31lulda in the care, CUS10dy, control, for tho bcnef\1, or on bobalf' of Kenneth MeAfoe and/or Janet F. McAfee, Individually or joilllly; and (v) UDder 110)1 addrcas related to either of IMm, such as a previous residence, telativc, rcpteaontative, or attorney's addrcu, oroompa!IYwhlch did bualness 011 babalfof ;/ .eM~:x~oth:MC4(~.qr J~l!'t~~ MoA!eeorwhlcJI wasownod ill wholeorinpartbyC!ltl!erorboth :'ktb,. ~-~: ~dr~cs'!ncl~1:~~u\~;~~unJ~'~, r-!no:s: ~- PO Bo'x'66~S2·; H~'T~, 1:7266 : . .:- ·~. ,•, b. PO Box 460786 Howton, Texu, 710S6 c. 66SO Palrllold Stmt Houaton, Texu, 77023 d. 2119 T1111gloy Houston, Tow, 77005 PEBS!JINGLLC 9. Arly and a111\ulds In l'cnhlni, LLC acoolll11$, all ofwbiol! aro pn:&Umod to cont&ln community fun~ and/or fun~ ~ltnlgins to tho Estate, (1) Ill. tbo namo ofKcnneth MoAfee ,, or J1111et F. McAfee, Individually; (il) Kenneth MI:Afee 1111d J~tmt F. McAfee joltltly; (Ill) whlcb I namor one: or both ofthem es a.~ign~!OQ'i (iv) whicb oontAilu funds In the care, cuatody, control, for I the banafit, or on behalfofKeiiDOih McAfee and/or Janet F. Mc:Afee, Individually orjointly; and (v) I ~· 6 ofiG _______ ··---- ···-··-·······-··· .... Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Ster11ng G. Senechal Ill  ~, • 06/08/1011 IIID I: ll 111~081011 r· FAX 7132163111 Ltv Office 08107/2011 1 .9,i.!i:l!.~ttnell &Duff Attorneys at Law O'A.W813415517 P.OOS/011 · ·:.:- ..::·.· 0') ... 0 (.) Wldcr·~·~d~J~~ to Bither ofthem, such as aprevloua recideru:e, JO!atlvo, representative, or c. m 1\ttamey•;:~~~:o;.:~mpany whioh dld buslncw on be~alfofeither .Kcm!cth Mc:Afeo or 11111Ct F. C) ;r1 •. McAfee or ~~~··.:w ~ in wholo or in part by oitller or both of them. The ad~ Include, ~· but aro notlhn;:~{i~;·;~Ud~s: Jl ~;: ~d Box 66352, Holll10a Texas, 77266 (I C'l :~(: ~gp:~~~!~.60786 Houa1011, Toxu, 170~6 co ·~·c. ~~~0 P~~-d Street Houston, Texas. 77023 Cl ~· '{."j· .... t'· 11. ~119 Twi.li>fijo~~~tan, TaliS, 7700S ·.;~~/~~}/': ·. :·,:-: ·.;:·. .:::GI~ 4 co, INC. tfl •:;::;::-· ·.;.:.~ ~ 10. Art.y a!ld alli\JI~ln Onunat& Co., [IIC, accounts,lncludl!lg aey Or\latal & II) 0 Co., !no, aubsldlarios or atii&tcs, ln~lfina but ~'i:bltod to tho foUowlng, aU of which arc I ;.j pre8\ln\ed to colltain community funds an;~:~~~~~~~g to the &lata: ·:;::· 1/) a, 989·03491 k . b. 9U-oSfiOO .• ·...t·.;;::- ···;::i}./~'· 11. Ally llld all fundt In Gruatal & ~!i}m:. aceoun~,, Including any Orunlal & ·:·:·:. ·:.:· Co., Inc. subsidiaries or af1ili11tcs, all ofwhkb 11n1 preruuied to conlllin .:oliUilunlty funds and/or funds bo!onging to the E,llrte, (i) in tho munc o!Kcllllclh MoAfcc or Ianc:t F. Mo.Aft.j), l!ldlv\duelly; (li) Kenneth McAfee 81111 Janet F. MaAft.j) jointly; (ill) which nll!;!liji' '.'>:·· 't~~:~~~th .:···.· of them 11 a !lgnatory; (lv) which contains fuads In the care, custody, control, ~~fJIIc ~~~J~~ on behalf ~f ! Kc:nnGth McAfee and/or JDnet F. McAfee, individulllyorjointly: and (v).~.· :a;;;~y ·.: ~related ;.;.·... I ''·-;; ., . ,:; ,j' ~' ..·. " to olthet of~. such aa a previous residence, rellltlve, repreaen111tlve, ot-'it!Oriict.t.,:¢~5$, or compaey whlob did busincw on behalf ofellhetKt:Moth MoAfco or 1anot P. M~~~~~~ was l,. AP'CI4 T••Pm'7 lljv..tlu T oliO ····:;:;,,-;>:.- ' I. I I Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  06/01/lHl IIBD J1 U FU HlZlflLll Lav Oft ice ~OOJ/011 06/0712011 f~81~15S17 P.009/011 owned in who!~ orln~'"''at\!C!T··:::~;;,::.. ·:::.. ;:::.: ~L' :PO.Bo'N6352, .:;o:::·:::·:· Houston Texu, 77266 . ,.. Cl ~J o:l Cl ,... Cl 12. belonging to the Estate, (I) In 11\C) name ot:~:z.ioAfee ot Janet F. MoAfee, Individually; (!i) ;;/''' '{ t Kenneth Mc.Afoe and J~~not F. McA!oo ')~j~tly;. (lli)'Which o11111e lhOil'l as a aignatmy; ("IV) which contains funds Intbc care, custody, oontrol,;:(ortho.~f!t, or on behalf ofK.ennelh MoAfoo and/or Janet F. MoAfeo,lndlvidually orjollltly; J:(~)'~jy addrcsuoiAtcd to eltbetofthom, suob u a ~vlous res!den~, relative, representative, orilttcmif.l(Sddre!s, or company which did buslness '\::.:·r~::~;}· .., on behalfofcither Kenne11\McAt'te ot Janet F-l4~-~ includlng.butootlimited to the followins: .·::.·•:.~~:!::{::~!·:;\:~:~: a. PO Box 66352, Ho~j).nn Texas, 77266 ·:=::: b. PO Box 460786 Houston, To:o~,':. which coutain: OJ Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  06/01/ZQLl IIllO 9: Zl PAX lllZH]lll l.av Of he• Q)OlO/OU 0810712011 1O:S91itcnea & DUff Attorneys it Law (J'AX)2813415517 P.OI0/011 (\! C,i (I Woodf'oreAtNBllonal Bank, Bllllk ofAmerica, N.A., BBVA Compass a. 0:) :aenk, Wells 'Pargo Bank, N.A., Cltizons Flnanoial Group, Ino., (I l'crlhlns lLC, and GNtllal & Co., Inc.; and/or if I {U) Any IUld all addition&! fund1 aod BSSetB w.hich - presumed to .... contain commlllllty fund' and/or fwldiJ belonsm1 to the &laiC• IT IS TBERUORE ORDERED, ADJUDGED AND DECREED that any Mtey or lcdividual,lnoludlng but not limited to Tho GMS Otoup, LLC, Woodforo!tNatlon.al Bank, Balik of ..... Cl America, N.A., BBVA Colllp118& Back, Wells Fargo Blllllc, N.A., CitJZOIIII Financial Group, lDo., PC18hlng UC, 1111d Clrutcal & Co., Icc., which contains, controls, or posseases funds preswued to belong to the community and/or Bstate, is ordered by the Co1Ut to tffccl\lale tho .~~IJil'''~f$18' i !' ·'::}: , r :- ·· · ·: ·.:: .. ~ -:· . ,or. any o~ccra, Tc:mpol'lll')' II\Junetlon ehould KonnothMcAfoe, .. \iaents, . servant!, ~plo~=~aUJ . . ,. ·. • .;:: . .,. ·=.~- • .. ·i· ·. ~·-· '•i'.· ';:~. ·:!:;,.,.;•;- . . .. ar.rvants, successon, as.&l8nSi:tiljiresclit&tlvcs, ana/or •c:f.ia.ciibgO)I hl5 bdlalf, attempt to ace= .••. . . ::~::-::;1.... ~-.:~ -:.. \:i: :r. ~:_\.: :· ~:f:i'· .. ';;l; ·····.··· ··· or ob1,lin ilc:C~···../. ~~: coiilinunl~ 1\lnds and/or funds that belOJJg to 1ho ~tate. IT IS 'X'REREFORE O:RDEREJ>, ADJUDGED AND DECREED chat lhll T~:mporary uyunctlon Ord11r Ia etrectivo immediately and shall cominueill force and dfcct until1ho Courtmaku 11. dctcrmlnAt!on ofwhatproporty belongs to the Eateto or tho Court rcnderla~U acd fhlalJudiPllCDt b In tho pondlng wronlli\ll death .suit woclated with this matter, which over b later, or by t\u1hu ordu of !hill Court. This on!er shall bo binding on Kenneth MoAfcc, or any officers, employees, agents, !ervanls, su=son, assil!lla1 representatives, attomeys acthlg on his behalf, and on those ponons In aetive concert or participation with hlm. Tho bond posted by the Administratrix Is rcqulred to remain posted. JallO Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas .ft,-<4/ Sterling ,_Q G. Senechal Ill Deputy  06/08/2011 IIIID ' ' 22 UX 7132243111 Lav Office !ilOll/011 0610712011 10:59 lftclleH & Duff Attorneys at L!W P.0111011 r·J ~J C) Cl 2Jll Ci. SIGNBDan~~r ~~~~ ra. ~4-··· C(j Cl til ,•'.. , !_ •• PilESiO!N 713.524.2225- Tolcphona · •8' '• '.'!':•... 713.524.5~70. Pao.~lmll ··•.•.! Anomoy for Hoin f ct Foltyn McAt'oo IUiCORDER'8 III!MCIWIDIIII: N.lhlllmo of ~nf•Uon, ""ln-.nt- lolnllo be tn.dequalt for lhl bul plla!Dgnplllo nprod...UOO bocauot ollr.glbl!ty, ollt>or! or pholo copy, dlocolorod popar, tla. All blocialllguan!lenahlp.oom C) Attorney. for Mr. Cherfea storer CERTIFICATE OF 8ERVTCI! . I hereby certify that a true and oo~ copy cit the foregoing haa been fOIWIIrdlld to ~II partlae and/or cciun.,l or reOOid through our electronlo eervjco provider, oerttned mall, return reoelpt req~lld· l!nd/0r .faceimile on !hie 6?6? ~ day of DeOIIllber, 2014. . .. .· .. Ealhe(Ande~on • oo: Matthew E. Upman Fauat Oppenheim LLP 468 Madlton Avenue VI• Eltclrpn!c hrvlct Proyld•r & New Yo111, New Yoi1110022 fllOflml!t 212-f71.f41Q Dean M. Blumroeen, Eeq. ~615 Southwett FI'88WIIy, SuHe 860 Yll Ef!ctron!c 8wry!ptt Provklar A Houa1on Texaa 77027 Ftctlm!lelfH2Hm! Woodfonnt National Bank, through their registered Bgent Jamee D. Orelbelbla 26231 Grogan'• Mill Road, Sui111 100 The Woodlanda, Texaa 77380 Yl• CMBRR 9fN7tO,l. qbl~f!(I"·Uet l.Z ..,.. .. . . . .J _ Confiden tial information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas o/~_Jd_ Q Deputy Sterling G Senechal lit  Tab6 Response to Charles Storer's Motion to Quash Writs of Garnishment  FILED 1nt2015 2:19:49 PM Stan Stanart County Cieri< Harris County NO. 396935-401 PROBATE COURT 1 ROSEMARY FOLTYN, Individually§ IN THE PROBATE COURT AND JAKE FOLTYN, Individually§ ONE O:l Plaintiffs § '\t § m C) § § ,.. § (,) § OF L'J § m C) vs. § § THE GMS GROUP, L.L.C. AND § WOODFOREST NATIONAL § BANK § HARJUSCOUNTY,TEXAS Defendants RESPONSE TO CHARLES STORER'S MOTION TO QUASH WRITS OF GARNISHMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Rosemary and Jake Foltyn {hereinafter referred to as "Garnishors") and files this Response to Charles Storer's Motion to Quash Writs of Garnishment and, in support hereof, Gamishors would show the Court the following: I. Response to Motion to Quash Writs of Garnishment Page 1 Confidential infor mation may have been redacted from the document in compliance with the Public Infor mation Act. A Cer tified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, T exas A -<41 o Sterling G. Senechal Ill Deputy  1. Plaintiffs/Garnishors are Rosemary and Jake Foltyn are Cl underlying judgment creditors to the wrongful death case in this cause n. o:l number. li:' o:l 2. Defendant/Garnishee, The GMS Group, L.L.C., is a limited Ci Ill liability company doing business in Texas and may be served by serving its registered agent, via certified mail, return receipt requested, Corporation Service Company, D/B/A CSC -Lawyers Inco, 211 E. 71h Street, Suite 620, Austin, Texas 78701. 3. Defendant/Garnishee, Woodforest National Bank is a privately held bank doing business in Texas and may be served by personally serving its registered agent, James D. Dreibelbis, 25231 Grogan's Mill Road, Suite 100, The Woodlands, Teas 77380. 4. On or about March 21,2014, this Court, in case number 396,935- 401 styled Rosemary Foltyn, Individually and as Independent Administratrix ofthe Estate ofJanet Foltyn McAfee, Deceased; and Jake Foltyn, Individually v. Kenneth Cooper McAfee entered a Judgment against Defendant, Kenneth Cooper McAfee in the amount of $2,000,000.00, plus pre and post judgment interest, plus costs of Court ("Judgment"). A true and correct copy of the Response to Motion to Quash Writs of Garnishment Page 2 Confidential information may ha ve been redacted from the document in complia nce with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Ha rris County, T exas A-<~d Sterling G. Senechal Ill a Deputy  -------------- . . -- C) Judgment is attached to the Application for Garnishment as Exhibit "A" and (!) C) 0 incorporated herein by reference for all purposes. This Judgment is just, due, 0. unpaid, and remains unsatisfied. II. LACK OF STANDING 5. Charles Storer is the person who filed the Motion to Quash Writs of Garnishment. Mr. Storer is not a party to the underlying case, nor is he a party to the garnishment proceedings. He has not filed any pleading seeking C) to intervene in this matter and thus, is not a party to these proceedings. Thus, Mr. Storer has no standing to assert anything in this case. The Motion to Quash should be denied on this basis alone. III. MOTION TO ABATE 6. After a hearing, this court signed an Order on June 26, 2014, compelling Kenneth McAfee to fully answer plaintiff's post judgment interrogatories and produce all responsive documents that are responsive to plaintiffs post-judgment request for production. Subsequently, Mr. McAfee's attorneys filed motions to withdraw and both did in fact withdraw. At Mr. Bennett's hearing on his Motion to Withdraw he represented to the court that Mr. McAfee had no assets to satisfy the underlying judgment. Response to Motion to Quash Writs of Garnishment Page 3 Confidential inform ation may have been redacted from the document in complia nce with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ~44_ . G Sterling G. Senechal Ill Deputy  Further, at no time did Mr. McAfee answer the post-judgment interrogatories i"l i.l Cl or produce one single document pursuant to the Court's Order Cl. 7. Thus, Mr. McAfee is picking and choosing what court proceedings he will decide to participate in. Mr. McAfee's attorneys withdrew 1[1 and never provided the post-judgment discovery they were Ordered to t) (\I produce. In an effort to circumvent the legal process, Mr. McAfee seeks to O:i Ci avoid the court's June 26, 2014, Order and proceed directly to only proceedings he wishes to partake, such as a Motion to Quash. 8. Had Mr. McAfee responded to the post-judgment discovery Ordered by this Court, Plaintiffs would be in a much better position regarding the characterization of Mr. McAfee's assets. This court vigorously protected Mr. McAfee's Fifth Amendment right during the entire trial court proceeding. While Mr. McAfee has and was granted all protections he was entitled, he is not above the law, like any other judgment debtor. He is required to abide by this Court's Orders as they pertain to the judgment entered against him. 9. Plaintiffs. request this Court abate any ruling on the Motion to Quash the Writs of Garnishment until Mr. McAfee has complied with this Court's June 26, 2014, Order compelling him to fully respond to the post- judgment discovery. Response to Motion to Quash Writs of Garnishment Page4 Confidential infor mation may have been redacted from the document in compliance wit h the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas _,1£;--

OA. r~r 6f' a,... order reletJ.st~ k f/t 55H004628 for a total of $8,355.54 tt is further, 1 ORDERED, ADJUDGED AND DECREED that Garnishee, The GMS Group, L.L.C. shall immediately send $8,355.54 payable to Deam M. Blumrosen, Attorney, at 4 Southwest Freeway, Suite 850, Houston, Texas 77027.1t is further, OROISREO, ADJUDGED AND DEGREISQ tl:lat tre Agreed Order for Temporary Injunctions in Cause No. 396,935; In the Estate of Janet Foltyn McAfee, Deceased, dated June 8, 201 \, ito dissotyed and all assets aeserieed ttlereiA, aAa iA partis~:~lar, the GMS a~~91:1 At 8RGiR~ iR see and Ute 'Nuudforest eeeel:!Rt eAaiAg it I 404, arEfl"eleased. c.. ORDER PAGE3 Confide nt ial in formation may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas .11;_-d.d__ . G? Sterling G Senechal Ill Deputy  SIGNED this _ ____,2::oL,L7_;it; __ ANDERSON PFEIFFER, PC By: Esther Anderson Wh-~ tn SBN: 00792332 845 FM 517 West, Suite 200 0 Dickinson, Texas 77539 N Office: 281.488.6535 0 Facsimile: 281 .614.5205 ~) Email: esther@probateguardianship. com 0 Of Counsel: Robert Teir, PLLC fo~+ ~~~ W/ ~ ~ Cf ,4 By: Robert Teir SBN: 00797940 845 FM 517 West, Suite 200 Dickinson, Texas 77539 Office: 832.365.1191 Facsimile: 832.550.2700 Email: rob@teirfaw.com Attorneys for Charles Storer, POA for Kenneth Cooper McAfee Mitchell & Duff, LLC By: Mary Elizabeth Duff SBN: 06166880 210 Main Street Richmond, Texas 77469 Office: 281-341-1718 Office: 281 -341-5517 Attorney for Estate of Rosemary F. McAfee, Deceased By: Dean M. Blumrosen SBN: 02517900 4615 Southwest Freeway, Suite 850 Houston, Texas 77027 Office: 713-524-2225 Facsimile: 713-524-5570 Attorney for Plaintiffs/Garnishors, Rosemary and Jake Foltyn N:IStorer, Cha~es\Onlers\Order Granting Motion to Quash (not agreed).docx ORDER PAGE4 Confidential information may have been redacted from the document in complia nce with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas JA.~~A ~·A~~ f ~Q~Deputy ~rling G. Senechal Ill  Tab 10 Motion to Partially Release Temporary Injunction  FILED 2110/2015 2:08:22 PM Stan Stanart DATA-ENTRY County Cieri< Harris County PICK UP THIS DATE PROBATE COURT 1 CAUSE NO. 396,935 -'-i 0\ IN THE ESTATE OF § IN THE PROBATE COURT § JANET F. McAFEE, § NUMBERONE § DECEASED § HARRIS COUNTY, TEXAS MOTION TO PARTIALLY RELEASE TEMPORARY INJUNCTION 0 COMES NOW Charles Storer, Power of Attorney for Kenneth McAfee, and files N (IJ this is Motion to Release Injunction and would show the Court the following. All Exhibits referenced are attached and incorporated herein by reference as if set out in full for all purposes. BACKGROUND 1. On June 8, 2011, all parties to the above stated cause entered an Agreed Order for Temporary Injunction. See Exhibit "1." 2. On January 27, 2015, the Court entered an Order Partially Granting Motion to Quash Writs of Garnishment as to two accounts: a. Woodforest account ending in 404, in the name of Kenneth Cooper McAfee exclusively holding social security assets of Kenneth Cooper McAfee; and b. GMS account ending in 606, an individual retirement account of Kenneth McAfee. See Exhibit "2." The Court further ordered that all other accounts at GMS Group, LLC, holding assets of Kenneth McAfee be subject to the writs such that Rosemary and Jake Foltyn recover $6,694.39 in account number 55H056008 and $1,661 .15 in account number 55H004628 for a total of $8,355.54 from GMS Group, l.l.C., MOTION TO PARTIALLY RELEASE INJUNCTION Page 1 of 4 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A-<~4.. o Stetitng G: SeneChal Ill Deputy  (") N upon receipt of an order releasing the Agreed Order for Temporary Injunction () 0 which is the subject of this Motion. /d. n. 1!1 3. Storer asks the Court to enter an. order partially releasing the June 8, 2011 -~ co temporary injunction as to the following three accounts: 0 a. Woodforest account ending in 404, in the name of Kenneth Cooper U1 McAfee exclusively holding social security assets of Kenneth Cooper '~ C\l ('~ McAfee, to Kenneth Cooper McAfee; l'"" Cll 0 b. account number 55H056008 holding $6,694.39 at GMS Group, LLC, to Rosemary and Jake Foltyn, c/o Dean M. Blumrosen; and c. account number 55H004628 holding $1,661.15 at GMS Group, LLC, to Rosemary and Jake Foltyn, c/o Dean M. Blumrosen. 4. All other accounts and assets described in the June 8, 2011 Agreed Order for Temporary Injunction should remain subject to the temporary injunction. WHEREFORE PREMISES CONSIDERED, Charles Storer, Power of Attorney for Kenneth McAfee, prays the Court enters an order granting his Motion to Partially Release Temporary Injunction and for such other relief, at law or in equity, as he may be justly entitled. MOTION TO PARTIALLY RELEASE INJUNCTION Page 2 of 4 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/201 5 Stan Stanart, County Clerk Harris County, Texas ..,~ .h; ~~~'d J.I. ._. ~·-~ Q~Dieputy Sterling G. Senechal Ill  '\I N Respectfully submitted, (j 0 0.. ANDERSOq;:;;.~Qf!SJ Ln By: Esther Anderson ""co SBN: 00792332 0 845 FM 517 West, Suite 200 ~/'} Dickinson, Texas 77539 ... Office: 281.488.6535 0 Facsimile: 281.614.5205 N Email: esther@probateguardlanshlp.com (",, ,. N 0 Of counsel on the Pleading: Lsi. 1Woert 'T'eir. RobertTelr Robert Telr, PLLC 845 FM 517 West, Suite 200 Dickinson, Texas 77539 Office: 832.365.1191 Facsimile: 832.550.2700 Email: rob@probateguardianship.com Attorneys for Mr. Charles Storer, Power of Attorney for Kenneth McAfee MOTION TO PARTIAlLY RELEASE INJUNCTION Paga 3 of 4 Confidential inform ation may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas _ _h;u_ sterling G Senechal Ill Q Deputy  irl c,; CERTIFICATE OF SERVICE <:: c I hereby certify that a true and correct copy of the foregoing has been forwarded 1 Q, i •• to all parties and/or counsel of record through our electronic seryjce provider, certified ! I u1 ~M mail, return receipt requested and/or facsimile on this I D /tv day of February, i co 2015. ~ Ondij'~ i (; ~ Esther Anderson ;I; i ,.•. cc: Mary Elizabeth Duff j ~' I l\j 21 0 Main Street VIA ELECTRONIC SERVICE PROVIDER & l~ Richmond, Texas 77469 FACSIMILE 281-341-5517 Matthew E. Lipman i () Faust Oppenheim LLP l 488 Madison Avenue VIA ELECTRONIC SERVICE PROVIDER & I New York, New York 10022 FACSIMILE 212-371-8410 i I Dean M. Blumrosen, Esq. 4615 Southwest Freeway I Suite 850 Houston Texas 77027 VIA ELECTRONIC SERVICE PROVIDER & FACSIMILE 713-524-5570 l Woodforest National Bank, through their registered agent James D. Dreibelbis 25231 Grogan's Mill Road Suite100 .J ~ ~g Sl The Woodlands, Texas 77380 VIA CMRRR q Ll N '1 \Oa W88 150, 1P _ Charles Storer N:\Siorer, Charles\Pieadlngo, Motions, AppllcaUona\Mollo Release lnjuncllon.doe>e MOTION TO PARTIALLY RELEASE INJUNCTION Page 4 or4 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  JAN-27-2015 15:25 From:7133686701 To:92816145205 \ CAUSE NO. 396936-401 INRE § IN THE PROBATE COURT JANET F. McAFEE, § Deceased § NUMBER ONE Ul § ro ROSEMARY FOLYN and § \J JAKE FOLYN § § Lf1 v. § OF ("j § ( ,, ,, THE GMS GROUP, LLC and § (\J WOODFOREST NATIONAL BANK, § HARRIS COUNTY, TEXAS Defendants ORDER PARTIALLY GRANTING MOTION TO QUASH WRITS OF GARNISHMENT,ANC liiiSIOL'ii JUe INIIYIU~'fi9NS.. On this day came to be considered the Motion to Quash Writs of Garnishment flied by Charles Storer, Power of Attorney for Kenneth Cooper McAfee. After review and consideration of said MoUon, the evidence, the responses, and the arguments of counsel, the Cour1 finds the following: 1. Judgment for damages in the amount of $2,000,000.00 plus pre and post judgment interest and court costs was entered by this Court on March 21, 2014 in Cause Number 396,935-401; Rosemary Foltyn, Individually and as Independent Administratirix of the Estate of Janet Foltyn McAfee, Deceased; and Jake Foltyn, Individually v. Kenneth Cooper McAfee PiaintiffsiGamlshors herein executed two writs of garnishment directed at The GMS Group, LLC, ("GMS") and Woodforest National Bank ("Woodforest"). 2. The GMS account ending in 606 (SSN xxx-xx-4352) and the Woodforest account ending In 404, hold assets in the name of or for the benefrt of Kenneth Cooper McAfee. 3. The GMS account endln In 606 SSN xxx-xx-4352) is an individual retirement EXHIBIT I 1 Confide ntial in formation may have been redacted from the document in compliance with the Public Infor mation Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Ha r ris County, Texas AA.d_ .o Sterling G senectlallll Deputy  J~N-27-2015 15:26 From:7133696701 To:92816145205 t... account for the benefit of Kenneth McAfee that qualifies for federal income tax (\j () deferral. Such account holds, exclusively, funds exempt from garnishment under 0 Ct. Tex. Prop. Code. §42.0021(a). Because such account is exempt from ll'i ~- garnishment, the writ directed to the GMS as to Kenneth McAfee's account co i) ending in 606 (SSN xxx-xx-4352) should be quashed. All other accounts at GMS If', that hold assets of, or are for the benefit of, Kenneth C. McAfee or Kenneth ~·· 0 N McAfee remain subject to the writ. C-.! ~~ 4. Further, GMS Group, L.L.C., Is Indebted to Kenneth Cooper McAfee ("Judgment l\1 Q Debtor'') in the amount of $6,694.39 and account number 55H056008 and $1,661.15 In account number 55H004828 for a total of $8,355.54. 5. The Woodforest account ending in 404 holds, exclusively, social security benefit proceeds of Kenneth C. McAfee which benefits are exempt from garnishment under 42 U.S.C. §407. 42 U.S.C. provides an absolute exemption and there are no statutory exceptions to same. Because the Woodforest account ending in 404 contains only funds exempted from garnishment, the writ directed at Woodforest as to Kenneth McAfee's account ending in 404 should be quashed. All other accounts at Woodforest that hold assets of or for the benefit of Kenneth C. McAfee or Kenneth McAfee remain subject to the writ. It Is therefore, ORDERED, ADJUDGED AND DECREED that the writs of garnishment directed at (I) GMS Group, LLC, for the account number ending with 606 (SSN xxx-xx-4352) in the name of and belonging to Kenneth McAfee, and {il) Woodforest National Bank for the account number ending wHh 404 In the name of and belonging to Kenneth C. McAfee are QUASHED. It is further, 01\DER PAOU Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A..d.J .Q Sterflng G. Senechal 111 Deputy  JAN-27-2015 15:26 From:7133686701 TD: 92816145205 (0 ORDERED, ADJUDGED AND DECREED that all other accounts at GMS Group N Ci LLC, and Woodforest National Bank that hold assets In the name of Kenneth McAfee or 0 a. for the benefit of Kenneth C. McAfee remain subject to the writs. Speclflcally, u: Garnishors, Rosemary and Jake Foltyn shall recover against the GMS Group, LL.C., (!l (.) the sum of $8,355.54, such sum to be credited to the judgment entered In the wrongful Lr! death judgment. It Is further, ORDREED, ADJUDGED AND DECREED that the payment of such sums as set ('~ forth above shall issue from funds of the judgment debtor, Kenneth Cooper McAfee, "' ',.J currently being held by Garnishee, the GMS Group, L.L.C., from the following accounts: $6,694.39 In account number 55H056006 and $1,661.15 In account number ,1t ~ r~t 6'F tU.. ()rdet rekt1Jrf8 k 55H004628 for a total of $8,355.54 it is further, 1 ORDERED, ADJUDGED AND DECREED that Garnishee, The GMS Group, L.L.C. shall immediately send $6,355.54 payable to Deam M. Blumrosen, Attorney, at 4 Southwest Freeway, Suite 850, Houston, Texas 77027.1t is further, OR.DsRE[) 1 ABdl:JDOED ANB BECRE!!C.#lat ~Agreed Order for Temporary Injunctions In Cause No. 396,935; In the Estate of Janet Foltyn McAfee, Deceased, dated June 8, 201 ~ Ia dlssol~d and all aisets-de&efibefj thereiAt aRe 11'1 J'BI'tlslllar, the eMS a~::oo~:~Rl &R9iRII iR GOO ar rd ll re Wwdforest eeeo~:~At eAsing iJ • 404, are released. C. DIDI• PAOE3 Confidential infor mation may have been redacted from the document in compliance with t he Public I nfor mation Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas --~ Lt; ~,~4, ~·'4- ~~ Ctt~Deputy Sterling G Senechal Ill  JAN-27-2015 15:26 From:7133686701 To:92816145205 SIGNED this _ __,2~7-14 __ U'\ ,.~ l'O 0 ANDERSON PFEIFFER, PC \li ~~ By: Esther Anderson 0 SBN: 00792332 C\J 645 FM 517 West. Suite 200 Dickinson, Texas 77539 ,.(I/ Office: 261.488.6535 c~ Facsimile: 261.614.5205 0 Email: estfler@probsteguerdlsnship.com OfCounsei: Rober1 Teir, PLLC fo!uf t.t.-4, V1 ~ ~ 9t4 By: Robert Telr SBN: 00797940 845 FM 517 West, Suite 200 Dickinson, Texas 77539 Office: 832.365.1191 Facsimile: 832.660.2700 Email: rob@telrlew.com Attorneys for Charles Storer, POA lor Kenneth Cooper McAfee Mitchell & Duff, LLC By: Mary Elizabeth Duff SBN: 06166880 210 Main Street Richmond, Texas 77469 Office: 281-341-1718 Office: 281-341-5617 Attomey for Estate of Rosemary F. McAfee, Deceased By: Dean M. Blumrosen SBN: 02617900 4615 Southwest Freeway, Suits 860 Houston, Texas 77027 CHfica: 713-624-2226 Facsimile: 713-524-0570 Attomey for Plalntlffs/Gamishors, Rosemary and Jake Foltyn N:~torer, Charlet\Ordeft\Order Granllng Molioll to Q\lnh (notagreed).doc>< Confid ential in formation may have been r edacted from the document in com plia nce with the P ublic Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A44 Stertlng G. e2 Senechal Ill Deputy  To:92916145205 JAN-27-2015 15:26 From:71336B6701 JUDGE LOYD WRIGHT Harris County Probate Court No. 1 201 Caroline, 6111 Aoor Houston, Texas 77002 Phone 713-368-6700 Fax 713-366·7300 lil FROM: 0 Judge Loyd Wright Kimberly Hightower Susie Rowley (\,) N ...JWfi(Ann Stile5 Kevin Scott Betty Hazlewood Pam Speer Cres Machicek Anthi Pavlicek Toni Williams Renae Brown Don Pylant PAGE_j_op_s: ("0/1~10P.Nl1AIJTY H!lTICF.: 'THE DDC'UMENTS AC'COMPANYING llUS 'fCt.P.C'Ol'Y TRANSMISSION CONTAINS CONI'lDilliT1AL INf- .. -----...:P..:;:.0:.:.13:::.1.;;;02;.;4~ 0&/0812.01L 1110 t12a ru U3zz•HL1 Lav Ofrtae [i'J0~2/0~1 ,~ 01!/0712011 10:68 HJ!dlattr.Duff Attomays atLaw P.OOV011 (I) 0 0 c~ No,S,6,93S tn .. w I lNTBEP.ROBATECOUR'l' co f c.; JANB:r li'OX.TYNM~, I N0.1 U'i I -~ J)ECEABED I llA.RlWl COUNTY, TEXAS () r~ t\J r•• l\i () ( c beulnJ onJnn 9, 2011. Thb agreement is ovidonoed by colllllala' •lsnaiiUea bolow. ThoCollriflndathataUnoooPA:yp~wsoftbaiAwbavoboea.lopll.yllt.lbflcdlllldthll tho Court bujutlld.l~tlon{n tbls oue &lid ofa111h•.Partfu. Tb• Court f!D4s tllatRIIaenwyFollyD,aa Adai!IUelratrfx ofthe P.etata oflll!let'FoltynMIIA!oo, it ontltll:d to a TmpotatYJn.lunat!DII. hCID EXHIBIT I 2 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/201 5 Stan Stanart, County Clerk Harris County, Texas  P.0141024 '"'r:t• 011071201 5 o 16:40 DI/GI/20U Will h '&G FAX 7U22UlL1 lAW OUho IIJOtl/011 M 0810712011 1o:ss Hltcllen &DUff ~aw P.otl!/011 Cl \4$1"1 0 .~ n. 't!~jlic:..::.,. .. Ul , lT IS 'l'aJtllUO , 1hat IC.Imne!h McAfee 11111 all ot blc office:r~, epnu, ·~ o:l .""ii.C.lll,lhigns,ra~var,BIIdll10meyaaroCII'Cielcd OllJ.MiliCil'ij o' to imml4latcly OG•Q 111d deallt · d OGallol oflh& foUII'Wina !WOOIIIlllllld FOPIIII11 Lf'J .,.. -·OUP.Llc9 0 ~~ ~,., AD)'IIIldallNiuls1!oMSOnlup,L'LCIO"WDtr,~udlllgbllt.uotJ!mltcdiD ~j.. l. the tbUawing.lll ofwhich m pr1:~4 eomllllllll~ &ndsmdlotfimds WIOIIBiDs to tho , (\j (:) Ba!ato: ~ ~ ( a.5nl~~~- ·r b. SSH·OS6i8 v..:. ~ ~ c. SSL-66060(. . ~~'l,.o•• l ~ cL S5H.00361~. ~ ~ c. S.Slf.034914 ~ f, SSK·850012 B· S5H..Q42479 b. SSH-008207 i. 98!1.034511 ( \. -· J, 996-66060 lc. 989·03SOD 2. AtfoJ 811d.ell ~sln OMS~- all otwhlohatoJIIIIIWIICdto I corrtaln camn:nmltyt\lnda 1.114/or funds bDiouslni to t\s.tatc; ~ th~r~ IIIDU ofKeanelh Mo~c j. or Janet Jl, MoMea,lnd!vld\Wb'i (II) Kalnlllh M~~· MoMoejoii\Uy: (Iii) wlllab DIIIDII one~ ar both ofthem u asl81Jatol)'l (lv)wh!ah~ the aare, ouSIDdy,~:a~~bol, Car Aslelf'I''"'II.,.IY'-JIIUIIea ltfiD ,. tb6 b1!110111. or on behalfof'ICeD!IIIIhMo.Afto 1111dlor111DDI ~lvld\11lly orJDinlly; 1111d (v) 'lll"'l"~- . ~-·~ . ~-~,~~ I ! ;. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas -~ .ft ~_d, ~·'--'J..---.~· -11 Q ~_Deputy Sterling G. Senechal Ill  0110712015 16:40 ....J~'l:!!23 d. 2! 19 Taqgl&y Houtt~m, Texu, 77005 m&mNGU& !l, kJr1 1114 ell tunda fu Pcnhlni. LLC acoourttt, Q1 ofwhloh arc~ to COIItaia COJmDIIIIify t\snda and/or Aulda belOlleiDB to 1ha Ba1ate, (1) flllho 11111110 otxmno!h M~ Ii· or Janet )", MaAfeo, Jlldlvldually; (II) Xollneth McAfu 1111d Iwt I, MIIAfco jo!Dtlr, (W) wlllob 111111101 on~ Qrboth of!ham u aaigP.tom ('IV) whfob aontain• tlmdl in1h1101110r aatody, OIIIUtOI,fDr I .I tha banllfi~ oren behalfotJCesmetk McAfisa md/or JanttP,McA.feo, ll'ldlvlduallyorjoinlly, ami (v) Ir I Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ./Lt;..Jd . Q Ster11ng G Senechal Ill Deputy  0110712015 16:42 P.019/024 ,Jiii!!I , 01/01/2011 IIID 1121 FAX HS22U~11 lAw OfUce 11)1081011 l-.; • fAl02813415St7 P.OOS/011 r-.. ~ C'l 0 0 ~~ "'Cl to e!lhar otthem1sucb ea aprevlo111 realdens:e, relallvo, ~ve, or U'l ~ llll)'wblahdldbu.rln•onbobaltofdthor~MCIAleeorJ'anctF. (W (I ni wbolo or In part by ehhor or both otthezn. The addrwal !nalwlo, Ui c:: • P Box 66352, HOUJ!On TCDI, 11266 r·.J N ,~ lu~~ ~~-, · ' ., ..60786R'oaa~m~. Tws, 770S6 (\j ~:) o, ~ . F~~ S116et Roii&IDII, ~ 77023 d. ~ouaton, Toxaa, 77005 ( l o. Any aocl all . . ·o·co.,mc. ~~ ~ ~ Co., Inc. IQOOUIIIB,lnaludlnsiii.Y Qnlclll&. 0 "'~ Co,, Irto. aubalc!Jarles or Ufillaw, In~ ~led ro th6 followlns, ali at which 11.1'0 ~ presumod 1o coDIB!n c:Q1111Dlllll1f 1\lnds ~ 'belo~g to ths Bstats: ~ .. 989-03491 . b. 989.05600 ·"f.' 11. Any end all funds' In ODilltal & c;, BCC~~IUI!¥10 bscluc!Jn& any Gtuntet & C..· Co., lil~ llllbaldfllliu or af61iaw, Ill orwhlab 11111 ~d tD CODtsin 001DU111Dil7 fiiDdl and/or r i (tf) KoDIIath MoAt'eo aad 1anol 'F. MaAtbo jolnlly, ~tl) which nAtb 1imds blllonafniJ lo 1MEslato, (i) in tbD namo o!Kcnnolh MaAfoD or laDIItP. 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Senechal Ill Deputy  0:~ (1) 0 01107/2015 16:42 06/DIInU no t12l 0~071201 1 t~ e . 11JUUU1 uw 1o:ss Hltchell ",.· ' . . .; otttn ifteysat LaW ~~~l!. ,~· fAA12!13415'517 P.oosJOII P.020/024 0 0.. avmed In wholo ~I"J ,_ (,>') 0 U'1 ~ ...- 0 N (\I ~ ... d. 21f~ (\J 0 c aprevious rwd=~rel,tive, reprosenmdve, on balullfofeither KeiiiiCIIh M!:A~e ar J~~~~et'F. ud!Jig, bucuotllmltecl to lhe 1bllDWhlg: ......d~ }.~~..,.,· a. PO Box 66352, Hotn TClC.DI1 17266 b. PO Box 460786 HoUlton, T6lW, 110$6 l· Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A44. o Starting G. Senechal Ill Deputy  16:43 P.0211024 06/08/20U 11110 J12l P.U 1UZ2U1U Z.aw OUf.c• IIJUO/Dll ' ~ P,0101011 0810712011 10:59 Hltchell &Duff Attorneys at LaW IJl CIJ (" ·' () Cl. Wcodfilre.4tNazlaDBI llllllk, Blllk at'America, N.A., BBVA Compw li'i ,.... l!ank, Wells l'qo Bank, N.A.. 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'Ihls order rhall 'ba DlncliPB !Ill XfOIUictll MoAfc;c, or aey offiCCII'I, Olll,JilCI)'aOI, sgents, .•eryanla, suC~:CSsom, 1111sigll&, J'O,Pmellta!lves, allot118YI aotlDg GD hl5 ~.and on1hDSCI pelfOIII ill active 'Diloort or pa:tldpatl= wilh Jlim, Tbo bDI!d pomd by the Adlllilllmarrlx Ia J'OCjUh'ed to~ poatcd. JaiiO Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Jt;_44_ Sterling G Senechal Ill _Q Deputy  P.022/024 01/07/2015 16:43 • OS/08120n IIBII PI U PAX 1UZ2U1U Low Dttice I!JOU/GU 1 I 0 0810712011 1o:ss Hltchan& Ouff Attornayut Law P.0111011 l\J' 0 0 [). li: J'\ \oJ (\J (\I (\J 0 . - .. -· --- .. - ----. _..... ~..... - .. ------------ Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ~~~ ~·. . ,.-4.m.....J-r;~.4L~~·Q~_Deputy Stfirling G. Senechal Ill  Tab 11 Motion to Partially Release Temporary Injunction  FILED 3/6/2015 4:35:23 PM DV Sian Stanart DATA-ENTRY County Cieri< Harris Counly PlCK UP THIS DATE No.396,935 PROBATE COURT 1 [J 0 ... IN THE ESTATE OF § IN THE PROBATE COURT 0 § 0. JANET FOLTYN MCAFEE, § N0.1 § ...0 DECEASED § HARRIS COUNTY, TEXAS ~i MOTION TO PARTIALLY RELEASE TEMPORARY INJUNCTION ...U"l 0 (IJ TO THE HONORABLE JUDGE OF SAID COURT: 01 0 NOW COMES Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn \') 0 McAfee (the "Estate"), and requests this Honorable Court to PARTIALLY RELEASE the Temporary Injunction for the ground set forth herein. Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee requests PARTIAL RELEASE of the Temporary Injunction because the Writ of Garnishment has been issued as to the accounts set forth below. Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee requests that the following accounts be released to Dean M. Blumrosen as the attorney for Rosemary Foltyn and Jake Foltyn, and Rosemary Foltyn as Administratrix of the Estate of Janet Foltyn McAfee 1. Account number 55H056008 holding approximately $6,694.39, or all funds remaining in the account after liquidation and account service fees, at GMS Group, LLC; and 2. Account number 55H004628 holding approximately $1,661.15, or all funds remaining in the account after liquidation and account service fees, at GMS Group, LLC. Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee further requests that all other accounts and assets described in the June 8, 2011 Agreed Order for Temporary Injunction should remain subject to the Temporary Injunction. Page I of3 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 10/1/2015 Stan Stanart, County Clerk Harris County, Texas ---t~- ~ ~~~fJ~~.VWJ o:. . .:. . : .illtJJt ;: :_:~_·Deputy Summer Lea Willette  en WHEREFORE, Plaintiff requests this Honorable Court to PARTIALLY RELEASE the 0 0 Temporary Injunction, and release. the aforementioned accounts to Dean M. Blumrosen as the l'l.. attorney for Rosemary Foltyn and Jake Foltyn, and Rosemary Foltyn, as Administratrix of the 0 ,.... Estate of Janet Foltyn McAfee, and for such other and further relief that may be awarded at law I[] ,.... or in equity. Ul ..... 0 r.J Respectfully submitted, en 0 (I) ~:~1(;]ll-9 0 MaryEI b u Texas Bar No. 06166880 210 Main Street FUchmond, Texas 77469 Tel. (281) 341-1718 Fax. (281) 239-7928 Attorney for Rosemary Foltyn, Administratrix Page 2 of3 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 10/1/2015 Stan Stanart, County Clerk Harris County, Texas ----"~ :...___~·rv"---'-~- V/(_ ilt&_ llt__Deputy Summer Lea Willette  ...0.... CERTIFICATE OF SERVICE 0 I certify that on March k_, 2015 a true and correct copy of the Motion to Partially 0. Release Temporary Injunction was served on all parties. f.L~lj/:2 0 ... Esther Anderson ... Anderson Pfeiffer, PC 0 845 FM 517 West, Suite 200 N Dickinson, TX 77539 01 Via Fax: (281) 614-5205 0 C"l 0 Dean M. Blumrosen, Esq. 4615 Southwest Freeway, Suite 850 Houston, TX 77027 Via Fax: (713) 524-5570 Page 3 of3 Confidential infor mation may have been redacted from t he document in compliance with the Public Information Act. A Certified Copy Attest: 10/1/2015 Stan Stanart, County Clerk Harris County, Texas --~ ~~i~J~&lJ~ V{illtJJi~ · =<>-- Deputy Summer l ea Willette  ... No. 396,935 ... IN'THE ESTATE OF § IN THE PROBATE COURT 0 § ll. JANET FOLTYN MCAFEE, § N0.1 0 § DECEASED § HARRIS COUNTY, TEXAS LI'J .. IJ"l 0 ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION N On _ _ _ _ _ _ __, the Court considered the Motion for Partial Release of the 01 0 Temporary Injunction filed by Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn crl 0 McAfee and the arguments of counsel. After due consideration of the Motion, the Response thereto, and the arguments of counsel, the Court finds the motion is GRANTED and orders the PARTIAL RELEASE of the TEMPORARY INJUNCTION to Dean M. Blumrosen as the attorney for Rosemary Foltyn and Jake Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee as to the accounts referenced below ONLY: 1. Account number 55H056008 holding approximately $6,694.39, or all funds remaining in the account after liquidation and account service fees, at OMS Group, LLC; and 2. Account number 55H004628 holding approximately $1,661.15, or all funds remaining in the account after liquidation and account. service fees, at OMS Group, LLC. IT IS FURTHER ORDERED that the other accounts and assets described in the June 8, 2011 Agreed Order for Temporary Injunction should remain subject to the Temporary Injunction. Signed on: _ _ _ _, 2015. PRESIDING WDGE Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 10/1/2015 Stan Stanart, County Clerk Harris County, Texas ------\~ L...!..!....:..~·~L..:,=._ h; \{(~-~-·Deputy Summer Lea Willette  ---------------------------··· N Approved as to Form Only By: 0 MITCHELL & DUFF, LLC Cl. 0 lll ... !iii/! Attorney for Rosemary Foltyn, Administratrix 210 Main Street ... FUchrnond, Texas77469 0 Tel: (281) 341-1718 N Fax: (281) 239-7928 01 Email: eduff@mitchellandduff.com 0 crJ 0 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 10/1/2015 Stan Stanart, County Clerk Harris County, Texas --~ ---"'-~"---- ~V/(_i/JrJJt _ _.Deputy Summer Lea Willette  Tab 12 March 12, 2015 Transcript  1 1 TRIAL COURT CAUSE NUMBER 396,835-401 2 IN RE: THE ESTATE OF * IN THE PROBATE COURT OF JANET FOLTYN McAFEE, * 3 * ROSEMARY FOLTYN and * 4 Jake Foltyn * HARRIS COUNTY, T E X AS * 5 THE GMS GROUP, LLC and * WOODFOREST NATIONAL BANK, * 6 Defendants * COURT NUMBER (1) ONE 7 8 MOTION TO PARTIALLY RELEASE FUNDS HEARING 9 10 Came to be heard on this the 12th day of March, 2015, Motion 11 to Partially Release Funds Hearing, in the above-entitled and 12 numbered cause, and all parties appeared in person and/or being 13 represented by Counsel of Record, before the Honorable Ruth Ann 14 Stiles, Associate Judge Presiding. 15 16 VOLUME OF_1_ 17 18 0 R I G I NA L 19 20 21 22 23 24 25  2 1 APPEARANCES 2 ATTORNEY FOR CHARLES STORER: 3 Robert Teir State Bar No. 00797940 4 845 FM 517, Suite 200 Dickinson, Texas 77539 5 Telephone: 831-365-1191 6 ATTORNEY FOR PLAINTIFFS, ROSEMARY FOLTYN AND JAKE FOLTYN: 7 Dean Blumrosen 8 State Bar No. 02517900 4615 Southwest Freeway, Suite 850 9 Houston, Texas 77027 Telephone: 713-524-2225 10 ATTORNEY FOR THE ESTATE OF 11 ROSEMARY F. McAFEE, DECEASED: 12 Mary Elizabeth Duff State Bar No. 06166880 13 210 Main St. Richmond, Texas 77469 14 Telephone: 281-341-1718 15 16 17 18 19 20 21 22 23 24 25  3 1 THE COURT: The McAfee Estate. 2 MR. TEIR: Good afternoon. I should start by 3 explaining that I am not Esther Anderson. 4 THE COURT: I am aware of that. So you are -- 5 could you say your name? 6 MR. TEIR: Robert Teir, T-E-I-R. 7 THE COURT: T-E-I-R? 8 MR. TEIR: All right. So, is there opposition 9 to the Motion to Partially Release? 10 MS. DUFF: We have actually two motions. They 11 have one which includes the Wood Forest Bank account plus two 12 other GMS accounts. We have a motion to partially release 13 which only includes the GMS account. There is some dispute on 14 the Wood Forest account. I have talked to Ms. Anderson about 15 it. There are two -- we agree that it was for the most part 16 SSI deposits into the account which the Estate would have no 17 claim against. However, there are two fairly large deposits 18 that no one has given me backup that happened prior to the date 19 of death that I'm trying to find out what the backup is on 20 those and whether or not those were community so that they 21 could be taken out of what was being distributed out of the 22 Wood Forest account. We are asking that our Motion to 23 Partially Release be signed, which just includes the two GMS 24 accounts. 25 THE COURT: So our only point of contention is  4 1 the Wood Forest account? 2 MS. DUFF: Yes, Your Honor. 3 THE COURT: Okay. So would you like to proceed 4 on your motion? 5 MS. DUFF: I don't think they filed an 6 appearance into the probate, which this is under the probate 7 cause number. And which cause number are they filing 8 appearance under? 9 UNIDENTIFIED PERSON: 401, Wrongful death. 10 MS. DUFF: The wrongful death matter. So that's 11 just the trial. Storer as the Power of Attorney, I don't know 12 that he would necessarily have standing in the probate matter 13 at this point in time. 14 THE COURT: Well, in regard to the Injunction, 15 clearly, Mr. McAfee is the person -- 16 MS. DUFF: But it's Mr. Storer as the Power of 17 Attorney. That's who they represent. 18 THE COURT: Right. Which is representing -- who 19 represents Mr. McAfee? Is that a point of contention? 20 MS. DUFF: That's a little bit of a point of 21 contention. It has been over these two cases. They have 22 entered an appearance in the wrongful death case but no one has 23 entered an appearance, unless they consider this their entering 24 of an appearance, in the probate estate itself. Mr. McAfee has 25 entered one but Mr. Storer as his Power of Attorney hadn't.  5 1 THE COURT: Okay, so are you contesting that Mr. 2 Store has Mr. McAfee's Power of Attorney? 3 MS. DUFF: I'm just contesting his standing to 4 make an appearance today. I believe Mr. Blumrosen has also 5 contested that in the wrongful death case as well. 6 MR. BLUMROSEN: The wrongful death issues were 7 basically I believe that Ms. Anderson indicates that she is 8 only representing Mr. Storer, she is not entering an appearance 9 on behalf of Mr. McAfee. But the issues in this, Your Honor, 10 are quite simple. Everybody agrees that the two accounts, the 11 GMS accounts are subject to garnishment, that they have been 12 garnished, and all we are waiting on now is the Court to 13 release the Injunction. And it would appear to me that the 14 only person that may have authority to do that would be someone 15 who has been involved in representing the Estate which is Ms. 16 Duff. The other language that is contained in Ms. Duff's Order 17 is language that I have spoken to the GMS attorney, that he 18 said that the only way they would ever release the funds in the 19 GMS accounts is if that language was contained in the Order. I 20 sent that to opposing counsel and indicated as such, and again, 21 even though they don't even contest the fact that those 22 accounts are subject to garnishment, that language is not 23 contained in there. So if the Court signs their motion, the 24 GMS counsel, Mr. Lipman has indicated to me he can't release 25 the funds because, since the market fluctuates, that has a  6 1 specific dollar amount in it as of whatever the date that we 2 last were provided information on those accounts. The language 3 that's proposed in Ms. Duff's Order indicates that amount plus 4 whatever amount is left in the account after liquidation and 5 fees. And for whatever reason, Mr. Lipman, as attorney for 6 GMS, indicated he must have that language in the Order or he 7 would not be able to release the funds. 8 MS. DUFF: So my motion is specific to the GMS 9 accounts. 10 MR. BLUMROSEN: And as I see it, Your Honor, the 11 only contention here is that they are claiming that the Wood 12 Forest account should also be released. All Ms. Duff is saying 13 is she has asked for, and I believe it's been documented, she 14 has asked for backup. We agree if it's Social Security 15 benefits, I have already pulled the garnishment. We are not 16 entitled to garnish that because it had Social Security 17 benefits in it. However, the Estate may or it may not have 18 claims to it, depending on the character of those assets, and 19 all we are simply asking is on behalf of the Estate, since this 20 case has been going for five years anyway, that the Estate be 21 entitled to look at the character and the backup so that Mr. 22 McAfee, who is now a convicted murderer and doesn't get the 23 benefit of money that he shouldn't get, and it seems pretty 24 easy if they would provide us the backup if it was there, and 25 then we would have no problem and release the Wood Forest  7 1 account to them. That's hasn't been done. And as I 2 understand, all she has asked for is some backup, and if they 3 provide it and show that it is Social Security benefits, then 4 according to Ms. Duff, the Estate will walk away from their 5 claims of it because they won't have any. That's really the 6 only issue of this hearing. 7 MR. TEIR: I don't want to interrupt the dueling 8 monologue. Continue. 9 MR. BLUMROSEN: I'm finished. 10 MR. TEIR: Because it seems like they are 11 arguing against what they perceive our position is but didn't 12 want to hear it. 13 THE COURT: Right. 14 MR. TEIR: Your Honor, the issue of the Wood 15 Forest account is res judicata, respectfully, in this Court. 16 This Honorable Court ordered and held that the account is 17 completely one hundred percent exempt from garnishment in its 18 January 27th, 2015 Order. The Court did so because of its 19 inherent finding that every dime in the account is exempt from 20 the reach of the Plaintiffs and is Mr. McAfee's Social Security 21 income. That issue is decided and we say what's good for the 22 goose is good for the gander if we are going to tinker with the 23 Temporary Injunction that was agreed for the sole purpose of 24 counsel getting paid a fee of eight thousand, that's all that's 25 going on here, then allowing Mr. McAfee access to what all  8 1 agreed is his money so he can have an occasional stamp and 2 piece of paper and Amazon book while in prison seems very fair 3 and is the only result, respectfully, consistent with the Order 4 quashing the Writ of Garnishment. The Order held that the 5 Plaintiffs can't get at that account. Therefore, the only 6 party that can is the Defendant, Mr. McAfee. And right now he 7 can only access it through my client, Mr. Store. So we ask 8 respectfully to allow the learned opposing counsel to be paid 9 their approximately eight thousand dollars they have been 10 waiting for from this other account, which we have no objection 11 to. They are correct. But also to release the injunction to 12 the funds that this Court has ruled belongs to Mr. McAfee, and 13 to do both. 14 THE COURT: Okay. 15 MR. TEIR: Nothing further, Your Honor. 16 MS. DUFF: The only thing, Your Honor, the Wood 17 Forest account was held to be exempt from garnishment. The 18 Estate has a TRO covering all the assets and that's what we are 19 here today on, a completely separate claim. I discovered that 20 there is about $35,000 that was deposited, $25,162 was 21 deposited on April 23rd, 2010, and $9,735 was deposited on May 22 4th of 2010. Both prior to death. Those are different than 23 the normal SSI deposits that were coming into the account. My 24 question is, where did those two deposits come from in the 25 amount of $35,000 and was it community property? That's my  9 1 only question. If we can show that it was not community 2 property, that it was separate property for whatever reason, 3 then I understand the rest of that account is SSI, and is not 4 subject to the TRO or to the garnishment. We don't like 5 letting it go but we understand that it has to be let go 6 because of federal law. So my question is on those two 7 deposits. 8 MR. TEIR: I respectfully feel a little bit 9 about hearing by ambush. Ms. Anderson, my colleague, filed our 10 motion. There was no opposition although there was a 11 counter-motion but no pleading offered any objection to our 12 motion for any reason. I simply respectfully am not in a 13 position to discuss the transaction from five years ago because 14 there was no clue that that would be brought up. It is my 15 understanding that similar questions were raised by counsel in 16 the wrongful death charge and an explanation was provided 17 through direct communications that we authorized with Charles 18 Storer. 19 MR. BLUMROSEN: May I respond? 20 THE COURT: Yes. 21 MR. BLUMROSEN: Your Honor, at the hearing on 22 the garnishment, and I did object to their motion and their 23 Order based on the language of it, I would agree with counsel 24 that it has been the decided that that account is not subject 25 to garnishment. That much I agree with. But I think they are  10 1 wanting you to take the Order a little bit further and say not 2 only is it not entitled to garnishment but the Estate has no 3 claims to it. I don't represent the Estate. Ms. Duff does. 4 Ms. Duff has -- we have e-mailed each other several times over 5 the last week that she has been asking counsel for information 6 about these deposits and that's the whole reason that she is 7 inquiring about that on behalf of the Estate. So again, I get 8 back to, this case has been going on for five years, the 9 garnishment is not in dispute about the two GMS accounts. The 10 only thing that's in dispute is the amount that Ms. Duff is 11 indicating to the Court she has questions about which have not 12 been provided to anybody about where that money came from. 13 MS. DUFF: I have asked about the deposits into 14 the account for backup on them and I received the printout of 15 the account. The account still doesn't have the backup on 16 those two dollar figures. Ms. Anderson may have thought that 17 this would have answered my questions but we have been calling 18 for this week also to just try to get an answer as to what 19 those two deposits are. Once we are clarified as to those two 20 deposits, we understand that the TRO will be released as to the 21 Wood Forest Bank. 22 MR. TEIR: In the alternative, if this Court is 23 inclined to allow this Cinderella hour opposition to our 24 motion, which again, I'm not prepared because, although our 25 motion was filed a week ago, this is the first I'm hearing it.  11 1 But if there is a problem with twenty-five thousand, then we 2 submit the Injunction should still be released to the balance 3 of the account and any Temporary Injunction that we don't think 4 should carry over at all, but if it does, it should be limited 5 to the amount of that deposit. 6 THE COURT: Thirty-five thousand, I believe. 7 MS. DUFF: Thirty-five thousand, Your Honor. 8 MR. TEIR: I stand corrected. I didn't mean to 9 misrepresent. Close enough. Public school, Your Honor. 10 THE COURT: Math. That would be my problem. So 11 really, is there any desire for you all to communicate for the 12 next week to try to clarify that $35,000 or there is no desire 13 to do that right now? 14 MR. TEIR: We would be happy to discuss it and 15 provide any information that we know but we don't know very 16 much, Your Honor. The transaction was five years ago. Mr. 17 Store had nothing to do with it and therefore we don't have 18 anything but what Ms. Duff has, the bank records. As far as 19 the source of that -- those funds, we believe that those funds 20 are gone. They were subsequently withdrawn closer to the time 21 of the deposit, and the only thing in the account, as we 22 showed, to get our -- the writ quashed was Social Security 23 deposits. Today every dime in that account is directly 24 attributable to a direct deposit from the United States Social 25 Security Administration. That money was gone long ago.  12 1 MS. DUFF: There were withdrawals out of the 2 account, Your Honor. I do concur with that. But was it that 3 money that was taken out or prior money. Is it first in first 4 out on money? That's where our concern is coming from. 5 THE COURT: Lifo fifo. 6 MR. TEIR: The Courts have dealt with that and 7 there is no appellate decision, and this is nationwide, because 8 we are dealing with a federal statute, that has allowed access 9 to funds and ruled them to be subject to garnishment or any 10 other collateral attack because of commingling from a deposit 11 over three years back, at least I couldn't find any, and I 12 believe I read them all. 13 MS. DUFF: Well, Your Honor, this was 14 immediately prior to her death and the funds were taken out 15 immediately after her death, which was that's where we are 16 saying, is it a community property interest because the funds 17 went in prior and came out almost immediately after. We don't 18 know what the exact funds are that came out. 19 MR. TEIR: What may help is, regardless of which 20 accounting methodology is applied, lifo or fifo, after the 21 withdrawals are made, there is a series of deposits made from 22 only one source, the Social Security Administration. The funds 23 that are on account now wouldn't be there but for the Social 24 Security Administration direct deposits. Not a dollar. So 25 regardless of accounting methodology, whether it's lifo or  13 1 fifo, the deposits from five years are gone. It's almost as if 2 Mr. McAfee opened a new account at that point, because zero 3 went out from after the withdrawals and the only money that 4 came in was from the Social Security Administration. That's 5 why we believe the Injunction should be lifted as to the 6 account as a whole. 7 MR. BLUMROSEN: Your Honor, most Defendants who 8 are post-judgment debtors have to respond to post judgment 9 discovery and provide documentation as to where all their 10 assets are which would include what happened to this money. In 11 this matter, that hasn't happened because he is in jail and 12 really doesn't have any care in the world about what the Court 13 could do to him. He has a ninety-nine year sentence. The 14 Court could hold him in contempt but it's really of no effect 15 to Mr. McAfee. 16 So what they have done is they represent Mr. 17 Store, the Power of Attorney, who they have said clearly, we 18 don't represent Mr. McAfee and we will see what we can do about 19 getting you stuff to help you, which they did finally answer 20 the post-judgment discovery, but there is just no documents. 21 They don't have any filing a Motion to Compel which we have 22 already done and have ordered is of no effect to Mr. McAfee. 23 So I do think when the Court is looking at its discretion in 24 how to handle this matter, we would appreciate airing on the 25 side of the victims of his brutal murder instead of saying,  14 1 well, we don't have any documents and we can't find out where 2 this money came from so let's let Mr. McAfee have it. And what 3 we would ask that if they refuse to and will not provide any 4 benefit or any document supporting these transfers, that the 5 Court use its power when the Estate comes in and says we 6 believe this is community property, we believe the Court would 7 have the inherent authority to look at it and decide that based 8 on the fact of their refusal to produce any documents. 9 MR. TEIR: That argument was considered and 10 completely rejected because it simply has no basis in the 11 unanimous consensus of federal and state courts that admit that 12 even for a defendant who is -- could be described as evil, the 13 Social Security Administration Act from the Roosevelt 14 administration in 1933 has no exceptions. The writ has been 15 quashed. They have to let it go. I understand the resistance 16 but their remedy is to seek a repeal of the Social Security 17 Act. They should go to their congressman. It says you can't 18 get at it for any reason. There have been fraudsters, there 19 have been murderers, there have been kidnappers, and people 20 have litigated the claim that they are a bad person. The 21 purpose of the Social Security Act is to protect widows and 22 children and retirees. This person is in jail. Doesn't need 23 Social Security. The Courts have unanimously without one 24 exception said that doesn't matter, Congress gave us an 25 absolute language. It's protected. End of story. I can't  15 1 defend what Mr. McAfee did to his late wife, of course, but he 2 has equal rights under the law and the Social Security Act has 3 no exceptions, including for their clients. 4 MS. DUFF: Your Honor, I'm not contesting that 5 this money may not be subject to the garnishment, my question 6 is, $35,000 that was in there on her date of death, which we 7 contend to have been community property at that point in time, 8 at least 50 percent. Unless they prove that it was not 9 community property, at least 50 percent of that $35,000, 10 $17,000, I believe, if my math is correct, would have been her 11 community property. That's what we are contesting at this 12 point, not that she is entitled to any of the Social Security 13 benefits but the community property interest in that money. 14 THE COURT: So as to his position that all of 15 the money that's currently in the account is directly 16 attributable to Social Security? 17 MS. DUFF: I don't see that, Your Honor, because 18 there have been withdrawals, deposits, withdrawals, well, just 19 those two deposits, I will give them that, but there are 20 numerous other withdrawals after the date of death, so I don't 21 know if he is taking out Social Security money, taking out 22 what money was taken out? My argument is at that snapshot in 23 time on May 10th of 2010, that $35,000 was still sitting in the 24 bank account and that was community property. 25 THE COURT: Which gives you a claim against that  16 1 community property. 2 MS. DUFF: Yes, Your Honor. 3 THE COURT: But if all the money that's 4 currently in the account is directly attributable to Social 5 Security, money that he might have previously taken wrongfully 6 that was community property, is that -- I guess your position 7 would be that because that money was removed before and there 8 is a claim that -- 9 MS. DUFF: That at least fifty percent -- at 10 least her community property interest should have been 11 considered to remain in the bank account. 12 THE COURT: Even though the money that's 13 currently there is -- unless you use a 14 MS. DUFF: Some portion of it is. 15 THE COURT: Okay. 16 MR. TEIR: In summary, Your Honor, I think it's 17 been well hashed by learned counsel and myself, after the 18 withdrawals again, it doesn't -- no one has to take my word 19 for it, they can just add up the deposits, they will see that 20 that's the money that's in there and no one is questioning 21 where one penny, one dime of that money has come from. But if 22 the Court rejects our claim, that the Injunction should be 23 released, there is no reason to deny Mr. McAfee access to most 24 of it because, by counsel's own admission, at most, the 25 community property claim is equal to one-half the approximately  17 1 thirty-five thousand, and the rest, I don't hear anyone saying 2 rests with any other soul on this planet but Charles McAfee, 3 and he should have access to it for the very limited purposes 4 that he is permitted under Texas law to use it such as a 5 commissary account. 6 MS. DUFF: Your Honor, I wish I could argue 7 against him on that but I do agree that anything in there that 8 is SSI is his, I'm arguing about that portion that I consider 9 to be. I wish I could argue different but, unfortunately, 10 federal law decided that murderers have access to their money. 11 THE COURT: Okay, I'm going to look at this and 12 discuss it with Judge Wright. 13 MR. BLUMROSEN: Judge, the only thing I wanted 14 to add, I know I made the point, but if you decide to go with 15 their Order, the one that they proposed 16 THE COURT: I have to use your language or else 17 the money won't come out. 18 MR. BLUMROSEN: Yes, ma'am. 19 MS. DUFF: Yes, we need the money to come out of 20 those two accounts. 21 THE COURT: Got it. 22 MR. TEIR: We are certainly amenable to that, 23 Your Honor. 24 THE COURT: Okay. 25 MR. TEIR: May we be excused, Your Honor?  18 1 THE COURT: You may. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25  19 1 C E RT I F I CAT E 2 COUNTY OF HARRIS * STATE OF TEXAS * 3 I, Donald G. Pylant, Official Court Reporter in and for 4 Probate Court No. 1 of Harris County, State of Texas, do hereby certify that the above and foregoing contains a true and 5 correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to 6 be included in this volume of the Reporter's Record, in the above-styled and numbered cause, all of which occurred in open 7 court or in chambers and were reported by me. I further certify that this Reporter's Record 8 truly and correctly reflects the exhibits, if any, admitted, tendered in an offer of proof or offered into evidence by the 9 respective parties. I further certify that the total cost for the 10 preparation of this Reporter's Record is $133.00 and will be paid by Esther Anderson 11 Given under my hand and seal of office this the 5th day 12 of August , 2015. 13 14 Is/Donald G. Pylant 15 Donald G. Pylant, C.S.R. Official Court Reporter 16 in and for the County of Harris and the State of 17 T E X A S. 18 Certification No. 668 Exp. Date: 12-31-2016 Probate Court No. One 201 Caroline Street, 6th fl. 19 Houston, Texas 77002 (713} 368-6692 20 21 22 23 24 25  Tab 13 Order Partially Releasing Temporary Injunction  DATA EN'I'RY ------ PROBATE COURT 1 PICK UP TIIIS DATB No. 396,935 IN"THE ESTATE OF § IN THE PROBATE COURT § JANET FOLTYN MCAFEE, § N0.1 0 § ~ DECEASED § HARRIS COUNTY, TEXAS 0 ... ill ORDER PARTIALLY RELEASING TEMPORARY INJUNCfiON ... fV\.o;.,c.h. I~~?Court considered the Motion for Partial Release of the 0 (',! On co r Temporary Injunction filed by Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn (") 0 McAfee and the arguments of counsel. After due consideration of the Motion, the Response thereto, and the arguments of counsel, the Court finds the motion is GRANTED and orders the PARTIAL RELEASE of the TEMPORARY INJUNCTION to Dean M. Blumros~n as the attorney for Rosemary Foltyn and Jake Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee as to the accounts referenced below ONLY: I. Account number 55H056008 holding approximately $6,694.39, or all funds remaining in the account after liquidation and account service fees, at OMS Group, LLC; and 2. Account number 55H004628 holding approximately $1,661.15, or all funds remaining in the account after liquidation and account service fees, at OMS Group, LLC. IT IS FURTHER ORDERED that the other accounts and assets described in the June 8, 2011 Agreed Order for Temporary Injunction should remain subject to the Temporary Confidential information may have b een redacted from the document in complia nce with the Public Information Act. A Certified Copy Attest: 10/1/2015 Stan Stanart, County Clerk Harris County, Texas ---=- ~ ----=-='--I,C--1- ·l~-=---\ti(- ~--=----·Deputy Summer Lea Willette  I Approved as to Form Only By: ,.. {) (l. MITCHELL & DUFF, LLC li-Jll/- Attorney for Rosemary Foltyn, Administratrix 210 Main Street Richmond, Texas 77469 Tel: (281) 341-1718 Fax: (281) 239-7928 Email: eduff@mitchellandduff.com Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 10/1/2015 Stan Stanart, County Clerk Harris County, Texas --~-H--f'tiM~ltF.:!CZ;r-fhi~'Hii8a,H-l'\({Att-l:£!5ff'- - -Deputy Summer Lea Willette  Tab 14 First Amended Motion for Reconsideration of March 16, 2015, Order Partially Releasing Temporary Injunction, First Amended Motion for Entry of Order Releasing Social Security Proceeds from Injunction And Motion for Sanctions  - . - ·- - - · - - - - ---- -·-··---· ··· ·· FILED ANM PROBATE COURT 1 4/30/2015 1:55:07 PM DATA-ENTRY Sian Slanart PICK UP THIS DATE County Cieri< Hams County CAUSE NO. 396,935 IN THE ESTATE OF § IN THE PROBATE COURT § JANET F. McAFEE, § NUMBER 1 OF § DECEASED § HARRIS COUNTY, TEXAS ••.•.•••.•..••....••..•...•..•..........•....•..........••..••.......•....•.... CAUSE NO. 396935-401 INRE § IN THE PROBATE COURT JANET F. McAFEE, § 0 Deceased § NUMBER ONE 11'1 § () ROSEMARY FOLYN and § JAKE FOLYN § § v. § OF § THE GMS GROUP, LLC and § WOODFOREST NATIONAL BANK, § HARRIS COUNTY, TEXAS Defendants § FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 16,2015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION, FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION AND MOTION FOR SANCTIONS TO THE HONORABLE JUDGE OF SAID COURT: Comes now Charles Storer, Agent under a Power of Attorney from Kenneth McAfee (see Exhibit "1"}, who moves the Court to: a. reconsider its March 16, 2015 Order Partially Releasing Temporary Injunction (see Exhibit "2") that does not include language permitting Kenneth McAfee access to funds the Court previously held to be his social security proceeds on deposit at Woodforest National Bank (see Exhibit "3," Order Partially Granting Motion to Quash Writs, ~5. And, FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 18, 2015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION, FIRST AMEN DEC MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION AND MOTION FOR SANCTIONS Page1 Confidential information may have been r edacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, T exas Deputy  b. to enter an Order Releasing Social Security Proceeds from any injunction that may be in force. In support of this Motion for Reconsideration, all Exhibits are attached and incorporated herein by reference as if set out in full. Charles Storer, Power of Attorney ul for Kenneth McAfee, hereinafter, "Storer" shows the following: 0 A. PROCEDURAL HISTORY N 1. The Estate of Janet McAfee was awarded a judgment against Kenneth McAfee in a wrongful death action under the jurisdiction of this Court. Although assets have been available to satisfy such judgment and although such assets have been repeatedly offered to the Estate, the Estate representative and her counsel, Elizabeth Duff, have refused to take any steps toward accepting the assets and crediting them against the judgment. Instead, they have made misrepresentations to the Court in a effort to not let go of their only tie to McAffee. 2. Ignoring the fact that the account Kenneth McAfee (hereinafter "McAfee") held with his employer, GMS, was a retirement account, the judgment creditor (hereinafter "Plaintiffs") sought, and received, a writ of garnishment against the GMS retirement account, along with two other accounts at GMS. Plaintiffs also sought a separate writ of garnishment for funds held on deposit at Woodforest National Bank (Woodforest"), which was also issued and is the subject of this Motion. 3. To protect the GMS account, which held only retirement benefits exempt from creditors under the Texas Property Code, and to protect the Woodforest account, FIRST AMENDED ManON FOR RECONSIDERATION OF MARCH 15, 2D1~. ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION, FIRST AMENDED MOllOH FOR ENTRY OF ORDER REI.£ASIHG SOCIAL SECURITY PROCEEDS FROM INJUNCTION AND MOTION FOR SANCllONS Pago 2 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  ., ~- ~.j which held only social security proceeds exempt from creditors under the federal 0 Ci Social Security Act, Storer moved to quash Plaintiffs' writs only to the extent they Cl.. ui .reached these two accounts. See Exhibit "4," Motion to Quash Writs of (\J u"l Garnishment, which is attached hereto without Exhibits, which Exhibits are a part •n of this Court's file and are incorporated herein by reference as if set out in full. ". c; 4. Storer's Motion to Quash Writs set forth the source of funds in both accounts, \'·J ........ demonstrating their exempt nature and providing the points and authorities to ltl () explain how each were, without exception, exempt from the reach of judgment creditors by operation of federal law. 1 5. The legal authorities and conclusion in Storer's Motion to Quash Writs were never questioned or objected ·to by Plaintiffs. Indeed, there is no countervailing authority to be found to the arguments raised in Storer's Motion to Quash Writs. See In re Franklin, 506 B.R. 765, 769 (Bankr., C.D. Ill. 2014) ("These proscriptions have been part of the Social Security Act since 1935"). As such, the Court granted Storer's Motion and entered an Order Partially Granting Motion to Quash Writs of Garnishment, which quashed both writs only to the extent they reached the GMS account containing retirement benefits and the Woodforest account containing social security proceeds. See Exhibit "3." 2 The "injunction" over each account, however, remained to be addressed. 1 See 42 U.S.C. §407; see also Bennett v. Arl t.i. I. THE FUNDS IN THE WOODFOREST ACCOUNT ARE MCAFEE'S AND ARE BEYOND THE JURISDICTION OF THIS COURT u.''I ('~ 8. Storer requests the Court reconsider its decision, if a deliberate decision was til ~· made, to not enter the order he submitted freeing both the GMS accounts subject ii1 to garnishment for the Estate/Plaintiffs and the Woodforest social security (.> account of McAfee, not subject to garnishment, because the nature and the C•J ownership of the funds on deposit in the Woodforest social security account were I"' ·' If! determined with finality via the Court's January 27, 2015 Order Partially Granting 0 Motion to Quash Writs of Garnishment, (Exhibit "3") and as such, the subject of such Order is now res judicata and the law of the case. Specifically, this Court lacks subject matter jurisdiction over the Woodforest social security account. Therefore, the Court must release its "injunction" pertaining to such account. 10. Because the nature and source of the funds on account in the Woodforest social security account is the law of this case, and because the Estate does not and cannot have any claim in or against any of such social security proceeds, there Is no legal basis to continue the "injunction· as same pertains to the Woodforest social security account. 11. Additionally, because the Woodforest social security account is not an asset of the Decedent's Estate, the Court does not have jurisdiction over such account. See Smith v. Lanier, 998 S.W.2d 324, 335 (Tex. App.-Austin 1999, pet. denied) (because assets "arguably were" husband's separate property, Probate Court administering late wife's estate "did not have subject-matter jurisdiction over the disputed property"); see also State v. Traylor, 374 S.W.2d 203, 207 (Tex.1963) (Smith, J., concurring) (Probate Court lacks jurisdiction over separate property of widow or widower). FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 1e, 2015, ORDER PARTIALLY RELEASIND TEMPORARY INJUNCTION, FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION AND MOTION FOR SANCTIONS Pogo 5 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A44_ Sterling G Siriidlallll Q Deputy  II. IT IS RES JUDICATA TO NOW ARUGUE THAT THE FUNDS IN WOODFOREST ARE ANYTHING BUT SOCIAL SECURITY PROCEEDS 12. The Court entered an Order Partially Granting [St«;>rer's) Motion to Quash Writs on January 27, 2015, as to the Woodforest social security account. See Exhibit .• , "3." Storer's Motion to Quash Writs was based on one argument and one proposition of law-that the funds in the Woodforest account are federal social security benefits. See Exhibit "4," 'fl's 8-21. C: lfl 13. While an opposition to the Motion to Quash Writs was filed, Plaintiffs' and the 0 Estate's counsel did not, and could not, question, refute, or distinguish the unanimous and clear precedent that social security proceeds are beyond the reach of creditors. Therefore, the writ of garnishment with regard to the Woodforest social security account was quashed in its entirety. See Exhibit "3." Because only one argument was made for quashing such writ, and because the Court quashed such writ, it is res judicata to now argue anything but that the funds in the Woodforest account are exempt because they are protected from creditors under the Social Security Act, which protection attaches to the account because the funds in it are only social security proceeds. 14. Res judicata prevents anyone from acting or asserting a position contrary to the holding and implicit finding of this Court in the January 27, 2015 on the Order Partially Granting Motion to Quash Writs. See Caprock /nv. Corp. v. Montgomery, 321 S.W.3d 91, 101 (Tex. App.- Eastland 2010) (stating that once a ruling is made, It Is final, and contrary arguments are prohibited). FIRST fo.loiENDEO loiOTION FOR RECONSIDEAATION OF MARCH 18, 2015, ORDER PARTI.IollY RELEASING TEMPOAARY INJUNCTION, FIRST MIENDED loiOTION FOR ENTRY OF ORDER RELEfo.SING SDCI.Iol SECURITY PROCEEDS FROM INJUNCTION . AND MOTION FOR SANCTIONS Poge8 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy  rJ N 15. Res judicata also bars retrial of claims that have been actually litigated and finally 0 c:J a. adjudicated in the original suit. See Coalition of Cities for Affordable Uti/. Rates v. U'l Public Uti/. Comm'n, 798 S.W.2d 560, 562-63 (Tex. 1990), cert. den. sub N ~~ nom., Gulf States Utits. Co. v. Coalition of Cities for Affordable Uti(. Rates, 499 ~· Iii U.S. 983, (1991 ). Specifically, the nature of each and every dollar in the ~· () Woodforest social security account was both, "actually litigated" and "finally l'J r••• C> adjudicated" via this Court's disposition of Storer's Motion to Quash Writs based ~: ~) on the Court's finding that such funds are social security proceeds belonging solely to McAfee that are absolutely exempt from garnishment. See Exhibit "3," ~5 . 16. The doctrine of res judicata also bars litigation of all issues connected with a cause of action or defense that, with the use of diligence, might have been litigated in the prior dispute. See Gracia v. RC Cola - 7-up Bottling Co., 667 S.W.2d 517, 519 (fex. 1964). If any party had the slightest differing view of the Woodforest social security account than Storer, they had ample opportunity to make that argument, and, with diligence, would have done so when the Motion to Quash Writs was pending In November 2014, December 2014, and January 2015. No party did. The Estate did file an opposition to the Motion to Quash Writs, but did not question the factual or legal conclusions about the Woodforest account containing social security proceeds. The period when the Motion to Quash Writs was pending would have been the timely, relevant, and appropriate time to question any of the legal or factual assertions made in Storer's Motion to Quash Writs, and would have been the correct time to bring to the Court's FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH le, 2015, ORDER PARTIALLY RELEI\SINCl TEMPORARY INJUNCTION, FIRST AMENDED MOTION FOR ENTRY OF ORDER REI.EI.SINClSOCIAL SECURITY PROCEEDS FROM INJUNCTION AND MOTION FOR SANCTIONS Pogo 7 Confidential information may have been redacted from the document in compliance with the Public Infor mation Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ft,A./_ o - -ES\Itfe'lfirlftfln\f:lgr-EQ:r--ESeW,ntiieetBI'h*l&ll-1WIIII --- - - -- ·D eputy  Ui N 0 attention for consideration, any evidence that the Woodforest account held 0 Ct. anything other than social security proceeds. No party did; and it is too late to U'i make any such argument now. 3 r"J U'1 If'"' 18. The bottom line is that the March 12, 2015 hearing on Storer's February 10, 2015 .. Ui (') Motion to Parliafly Release Temporary Injunction as to the Woodforest account .. (\) Cj was not the time nor the place for an "Impermissible collateral attack" on the prior January 27, 2015 judgment of the Court. Browning v. Prostok, 165 S.W.3d 336, v·1 (J 346 (Tex. 2005) (stating that It is impermissible to "attempt to avoid the binding force of a judgment in a proceeding not Instituted for the purpose of correcting, modifying, or vacating the judgment, but in order to obtain some specific relief which the judgment currently stands as a bar against.") U.S. Bank, N.A. v. Kobemick, 402 S.W.3d 746, 754 (Tex. App.-Houston [1st) 2012); in re Commitment of Briggs, 350 S.W.3d 362, 366 (Tex. App.-Beaumont 201 1); Dallas County Tax Collector v. Andolina, 303 S.W.3d 926, 930 (Tex. App.- 201 0); Henderson v. Chambers, 208 S.W.3d 546, 550 (Tex. App.- Austin 2006); see also id. ("Only a void judgment may be collaterally attacked"). 3 No evidence was offered during the adjudication of Storer's Mallon ro Quash Writs of Garnishment that the funds on deposit at Woodforest are anything but what Charles Storer has maintained they are, and what the Court has found they are - social security proceeds. The sole questioning of the nature of these funds was In the latest late arguments of Plalntiffs'/Estate's counsel on March 12, 2015, and even then, there was no assertion that the funds are anything but social security proceeds. Rather, Plaintiffs'/Estate's counsel stated only that she 'questions' some of the deposits in the account. Questioning Is good, but offers this Court no reason to deny Storer's Motion. Additionally, questioning Is also not testimony and Is not evidence. See Lee v. Stale, 442 S.W.3d 569, 579 (Tex. App.-San Antonio 2014) (stating that arguments of counsel are not evidence, even when counsel Is the honorable AHomey General); Levy v. Cash, LLC, 2013 WL 6237273, at •1 (Tex. App.-Houston [14th] 2013) ("challenged statements of .... Counsel were arguments of counsel, not testimony'). FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 18, 2015, OROER PARTV.LlY RELEASING TEMPORARY INJUNCTION, FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAl SECURrry PROCEEDS FROM INJUNCTION AND MOTION FOR SANCTIONS Pago8 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A4dSt•'!rllng G. Senechal et m Deputy  iii. SOCIAL SECURITY PROCEEDS ARE PERSONAL PROPERTY 19. In Richard v. Richard, a Court of Appeals held: "Social Security benefits are not community property, and a state court's attempted disposition would conflict with federal law, ~:"'"' disrupting a 'uniform federal scheme of benefits' by producing results which would vary 'depending upon the community property law of various states'". C 20. /d., 659 S.W.2d 746, 747 (Tex. App.-Tyler 1983). The personal property nature (\J ,... of social security benefits is well-settled under Texas law. See id.; see also In re Marriage of Ford, 435 S.W.3d 347, 350, n.2 (Tex. App.-Texari C\, 22. There have already been multiple hearings to address issues relating to the i!'l Woodforest social security accounts and the assets therein. The Court has r,) lli already determined to be wholly exempt from creditors under long standing "" .. ~-i federal Jaw. Nonetheless, Rosemary and Jake Foltyn and Rosemary Foltyn, as CJ Independent Executor of the Estate of Janet F. McAfee, while doing nothing to N ..~ ... t". accept assets from Storer on behalf of McAfee, to satisfy the judgment recovered -- ii'i 0 against McAfee, engage in an endless obstacle course aimed at denying Storer access to what everyone agrees is McAfee's exempt, separate property. The Foltyns have turned this tiny bit of remaining litigation into a game of smite, where, if they cannot get to the account because of federal law, they will do whatever they can so that no one else gets to it either, including its lawful owner. 23. This spiteful harassment now takes the form of accusations that are never put on paper (as legal assertions would require references to actual facts and legal authority). And as the prior hearing showed, the sole, tardy reason offered to oppose the lifting of the 'injunction' freezing the Woodforest social security account was that counsel supposes that, maybe, somehow, some unknown small portion of such account is community property, without giving this Court or Storer so much as a clue as to how this may be the case. 25. This Court's, Order Partially Granting Motion to Quash Writs held that the Woodforest account contains exempt social security assets belonging to McAfee. Counsel's most recent pretended suspicions do not overcome what i.s res judicata In this case, and offer no reason to put Storer through hearing after FIRST AMENDED MOTION FOR RECONSIDeRATION OF MARCH 16, 2015, ORDER PARTIALLY RELEASING TEMPORARY INJUHCTIOH, FIRST AMENDED MOT10N FOR ENTRY OF ORDER RELEASING 50Ci.'.l. SECURtlY PROCEEDS FROM IHJUNCTION AND MOTION FOR SANCTIONS Page 10 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A4,J ~Ste~rtili;ln~g~G~s~en~ec~h~al~,;;:r~~~----neputy  ro r'.! hearing based on . unwritten, unspecified, and most certainly unproven C) c."' \,./ suspicion(s). ~'i 26. Plaintiffs have not offered one bit of evidence that questions the source and ~~ ~·I ... nature of the funds on deposit at Woodforest, which subject is now moot. Their l!l efforts to forever punish McAfee is perhaps understandable, but the use of the ~· () civil courts to further punish McAfee is ultra vires, a violation of the double (\J ... () jeopardy clause of the United States and Texas Constitution, and totally ignores \1'1 (.) the very real fact that McAfee has already been judged and is being punished for his crime every day he remains in the state's maximum security prison. See U.S. Canst., Amd. V; Texas Canst., Art. I, §14. The Foltyns' secondary punishment, no matter how gratifying for those for whom no punishment is sufficient, must stop now, especially in light of the fact that they are relying upon enforcement of a "temporary Injunction," which everyone knows Is not enforceable, but is, Instead, being honored by Storer out of respect to the Court. 30. In addition to the endless moving of the goalpost, the Foltyns knowingly filed improper writs of garnishment and attempted to collect assets they knew to be exempt under law. Even after the Court heard and adjudicated the issue of exempt assets, which determination they did not (and could not seriously) appeal, and even after this issue had been resolved and was res judicata, they now insist on an oral hearing on Storer's Motion for Reconsideration, without anything in writing, so they can again hide from Storer what basis they seek he be denied the relief he requests (see Pearson v. Wichita Falls Boys Club Alumni Assoc., 633 S.W.2d 684, 686 (Tex. App.- Fort Worth 1982) (Texas litigation is FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 10, 2015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION, FIRST AMEN DEC MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION AND MOTION FOR SANCTIONS Pogo11 Confidential information m ay have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas J/;4d Ster11ng G. Senechal Ill Q Deputy  not "a game of chance and surprise, or 'Blind Man's Bluff"), and to increase attorney fees. 31. Plaintiffs' attempts to use the processes of this Court to continue their harassment in the face of the Court's plain and unambiguous final Order should U1 no longer be tolerated. See, e.g., Bennett v. Reynolds, 2014 WL 4179452, at n. 49 (Tex. App.-Austin 2014) (courts declining to "beat a dead horse"). 32. The bottom line is that the issue Is settled and moot, and any further complaints regarding same are barred by res judicata. Plaintiffs simply have no right to the social security proceeds; they know this and have admitted this fact on the record through their counsel. 33. Therefore, for the above stated reasons, the Court should impose appropriate. and just sanctions against Rosemary and Jake Foltyn, and Rosemary Foltyn, as Independent Executor of the Estate of Janet F. McAfee, for their groundless and frivolous pleadings, settings, and acts in violation Texas Civil Practice & Remedies Code §10.001, 9.012 and Texas Rule of Civil Procedure 13. See Unifund CCR Partners v. Villa, 299 S.W.3d 92, 96 (Tex. 2009) (sanctions permissible for seeking to collect from debtor discharged In bankruptcy); Low v. Henry, 221 S.W.3d 609, 616 (Tex. 2007) (sanctions appropriate for Improper pleadings filed with the trial court); Gomer v. Davis, 419 S.W.3d 470, 478 (Tex. App.-Houston [1st] 2013) (sanctions permissible for submission of pleadings groundless in law and fact). FIRST AMENDED MOTION FOR RECONSIDEAATION OF JMRCH 16,2015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION, FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION AND MOTION FOR SANCTIONS Page 12 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Jf;A_J ..o. Stirling G S ~meChal Ill Deputy  PRAYER 0 Q. WHEREFORE, Charles Storer, Agent under a Power of Attorney from Kenneth McAfee, prays the Court: a. reconsiders its Order Partially Releasing Temporary Injunction dated iii March 16, 2015, releasing from any injunction only the non-exempt GMS accounts, and not releasing from any injunction Kenneth McAfee's social security proceeds account at Woodforest National Bank; Ci lr'; C) b. enters Charles Starers' proposed Order, attached hereto as Exhibit "6," which releases the exempt social security account at Woodforest National Bank; c. grants appropriate and just sanctions against Rosemal)' and Jake Foltyn and Rosemal)' Foltyn, as Independent Executor of the Estate of Janet F. McAfee, for groundless and egregious efforts to keep Storer from assets that rightfully belong, under settled law, to Kenneth McAfee; and d. for such other and further relief at law or In equity to which Storer may be justly en@ed. FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH IS, :1015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION, FIRST AMENDED MOnON FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION AHD MOnoN FOR SANCnoNS P-13 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A4dSter1ing G Senechal 111 Q Deputy  Respectfully submitted, ANDERSON PFEIFFER, PC ~~ By: Esther Anderson SBN: 00792332 By: Robert Telr, of Counsel U'J SBN: 00797940 845 FM 517 West, Suite 200 Dickinson, Texas 77539-2903 Office: 281.488.6535 Facsimile: 281.614.5205 Email: esther@probateguardianshlp.com rob@probateguardianship.com CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the following has been forwarded to all parties and/or counsel of record through our electronic service provider and/or facsimile and/or certified mall, return receipt requested on this 30th day of April, 2015. Esther Anderson cc: Matthew E. Lipman Faust Oppenheim LLP 488 Madison Avenue VIa Electronic Service Provider & NewYork, New York 10022 Facsimile 212-371-8410 Dean M. Blumrosen, Esq. 4615 Southwest Freeway, Suite 850 VIa Electronic Service Provider & Houston Texas 77027 Facsimile 713-524-6570 Mary Elizabeth Duff 210 Main Street VIa Electronic Service Provider & Richmond, Texas 77469 Facsimile 281-341-6617 Woodforest National Bank, through their registered agent James D. Dreibelbis 25231 Grogan's Mill Road, Suite 100 The Woodlands, Texas 77380 VIA CMRRR ~fell'£7102. (J1Jf2 16ft tal ~ S" N:IS1orar, Charles\Pioadlngs, Motions, AppYcatlonal1s1 amended motion to racanolder & mollan lor sanc:llons.dacx FIRST AMENDED MOTION FOR RECONSID£RAT10N OF MARCH 15,2015, ORDER PARTIALLY RELEASINQ TEMPORARY INJUNCTION, FIRST AAIENDED MOTlON FOR EKTRY OF ORDER RELEASINil SOCIAL SECURITY PROCEEDS FROM INJUNC110N AND M0110N FOR SAHCTlONS Page 14 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ft,4-1{ Q ~~~enffiin~g~a~s~e~n~a~oo~a~I#IJI~----------Depucy  C\l 20150010298 1 01/0B/2015 RP2 ~28.00 C'"J () ~· ••' DURABLEPOWEROFATTORNEYFOR a. lf'i Pa KENNETH COOPER MCAFEE N il"l f"l> p I KENNETH COOPER MCAFEE revoke all previous powers of attorney given by me. This is a durable power of attorney given for the management, protection, and conservation of my property, especially in the event I am unable for any reason to manage, protect, and cons~rve it! my own property, and to avoid a guardianship as to the management, protectipp; and "" () conservation of my property. It is my purpose to delegate certain other authority. cifa personal N nature, such as the authority to make health care decisions in the event I cannot do sp for myself. C) The authority vested in a Personal Representative under this durable pq~er of attorney is U"i unlimited in nature, and is based in complete trust. A Personal Representative's authority nnd C) .., ~-. legal capacity will be that of an agent and trustee . \... APPOINTMENT OF THE PERSONAL REPRESENTATIVE I appoint my CHARLES RUSSELL STI -16 -~I i. () S-\ · touad to 1><1 fnodoquoll for the but pholographlc ro~ducllon buoun of Jlfoglbfllly, carbon or ~J~r-J . --r-.c 77(,)?--3- "/00'2.- photo copy, dlti.Oiorod paprr, tlc.Aff blockovfo, addillons and chan~·: '111ft prucnt tl lht~mt the fnltrumtnl w-.s ntod •nd 11cordtd, Page 4 of4 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Af;_..dd_ Ster11ng G. Senechal Ill .G Deputy  i.O (';i 0 .. ..: . ... "I "' (l, .. '• \l'l N " U"l ;: .. ~· U"l -~ ~· ~~ N .... 0 il1 C) ...., ( 'X ~\ ""' ~ U'l t t <- ErJ I > :z: ""a: g::.e l 'I oe ~~~~ -<' ..., ·. ·~~~ "' r· !;; ~ ' .. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy  No.396,935 lNTHE ESTATE OF § IN THE PB.OBA'l"E COURT § JANET FOLTYN MCAJ.l'EE, § NO.I § DECEASED § B..UUUS COUNT'II', TEXAS O:RDER PARTIALLY RELEASING TEMPORARY INJUNCTION On MaJ.C.h. I~J'?Court considered the Motion for Partial Release of th= Temporary Injunction filed by R.osclllaty Foltyn, as Adminisltatrix of the 'Estate of Janet Foltyn MoAfee and the arguments of counsel. Aftor duo consideration of the Motion, the Response thereto, and the arguments of counsel, the Court finds the motion is GRANTED and ordem the PARTIAL RELEASE of the TEMPORARY INJUNCTION to Dean M. Blumroscn as the attorney for Rosemary Foltyn and Jake Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee as to the accounts referenced below ONLY: 1. Account nwnber S5H056008 holding approximately $6,694.39, or all funds remaining in the accowrt after liquidation and account sCI'Vicc fees, at OMS Oroup, LLC; and 2. Account number SSH004628 holding approximately $1,661.15, or all funds remaining in the account after liquidation and account scrYicc fcc5, at GMS Group, LLC. IT IS FURTHER ORDERED that the other accounts and a5sets described in the June 8, 2011 Agreed Order for Temporary Injunction should remain subject to the Temporary Injunction. Signed on:r1J\w:h /Ca. 2015. EXHIBIT I :L Confidential infor mation may have been r edacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A4dSterilng G Senechal· Ill o Deputy  JAN-C7-2B15 15:26 From:71336B67B1 To:92816145205 ro ~j C.:: CAUSE NO, 396935-401 0 C!•. INRE § IN THE PROBATE COURT li1 JANET F. McAFEE, § N lf'j Deceased § NUMBER ONE ,.. § ROSEMARY FOLYN and § JAKEFOLYN § § ~ § OF § THE GMS GROUP, LLC and § WOODFOREST NATIONAL BANK, § HARRIS COUNTY, TEXAS Defendants ( ORDER PARTIALLY GRANTING MOTION TO QUASH WRITS OF GARNISHMENli.~ ~18806'/llle ll~dt1Ue=FIONS. On this day came to be considered the Motion to Quash Writs of Gamlshmenl flied by Charles Storer, Power of Attorney for Kenneth Cooper McAfee. After review and consideration of said Motion, the evidence, the responses, and the arguments of counsel, the Court finds the following: 1. Judgment for damages in the amount of $2,000,000.00 plus pre and post judgment Interest and court costs was entered by ~his Court on March 21, 2014 in Cause Number 396,93~401; Rosemary Foftyn, fndlviduaffy end as Independent Administratirix of the Estate of Janet Foltyn McAfee, Deceased; and Jake Foltyn, Individually v. Kenneth Cooper McAfee Plalntiffs/Garnlshors herein executed two writs of garnishment directed at The GMS Group, LLC, r"GMS") and Woodforest NaUonal Bank ("Woodforest"). 2. The GMS acco~nt ending in 606 (SSN xxx-xx-4352) and the Woodforest account ending In 404, hold assets in the name of or for the benefit of Kenneth Cooper McAfee. 3. The GMS account ending In 606 (SSN ,-¥13521 is ag jgdjvidual retirement OIDIR E~tiBrT I Confidential information m ay have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/201 5 Stan Stanart, County Clerk Harris County, Texas ~.-d.d_ .mQ Sterling G: Senecnal Deputy  JAN-27-2215 15:26 From:71336867B1 To:928161'\52B5 c~ ~'J 0 account for the benefit of Kenneth McAfee that qualifies for federal income tax (J c~ deferral. Such account holds, exclusively, funds exempt from garnishment under V'l r'J Tex. Prop. Code. §42.0021(a). Because such account is exempt from Ui \'"u garnishment, the writ directed to the GMS as to Kenneth McAfee's account - 1ri 0 N ending in 606 (SSN xxx-xx-4352) should be quashed. All other accounts at GMS thai hold assets of, or are for the benefit of, Kenneth C. McAfee or Kenneth e•· C) McAfee remain subject to the wrll. ui C1 4. Further, GMS Group, L.L.C., Is Indebted to Kenneth Cooper McAfee ("Judgment c· Debto~') in the amount of $6,694.39 and account number 55H056008 and $1,661.15 In account number 55H004628 for a total of $8,355.54. 5. The Woodforest account ending In 404 holds, exclusively, social security benefrt pro~eds of Kenneth C. McAfee which benefits are exempt from garnishment under 42 U.S.C. §407. 42 U.S.C. provides an absolute exemption and there are no statutory exceptions to same. Because the Woodforest account ending in 404 contains only funds exempted from garnishment, the writ directed at Woodforest as to Kenneth McAfee's account ending in 404 should be quashed. All other accounts at Woodforest that hold assets of or for the benefit of Kenneth C. McAfee or Kenneth McAfee remain subject to the writ. It Is therefore, ORDERED, ADJUDGED AND DECREED that the writs of garnishment directed at (I) GMS Group, LLC, for the account number ending with 606 (SSN xxx-xx-4352) In the name of and belonging to Kenneth McAfee, and (II) Woodforest National Bank for the account number ending with 404 In the name of and belonging to Kenneth C. McAfee are QUASHED. It is further, Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas .ft,..d-4_ Stertlng G Senechal Ill 0 Deputy  JAN-27-2015 15:e6 From:71336867B1 To:92B161'15205 0 ~ ("· .I () ORDERED, ADJUDGED AND DECREED that all other accounts at GMS Group u. LLC, and Woodforest National Bank that hold assets In the name of Kenneth McAfee or U'l N for the benefit of Kenneth C. McAfee remain subject to the writs. Specifically, ,...ul Garnishors, Rosemary and Jake Foltyn shall recover against the GMS Group, l.L.C., ill ,.. the sum of $8,355.54, such sum to be credited to the Judgment entered in the wrongful e N ... death judgment. It Is further, 0 U'l ORDREED, ADJUDGED AND DECREED that the payment of such sums as set () forth above shall issue from funds of the Judgment debtor, Kenneth Cooper McAfee, ( currently being helcl by Garnishee, the GMS Group, L.l.C., from the following accounts: $6,694.39 In account number 55H056008 and $1,661.15 In account number · 1ft 140" r.f.tt1t "., fb.. ()rriet ~let1Jtft1 k 55H00462B for a total of $6,355.54 It Is further, 1 ORDERED, ADJUDGED AND DECREED that Garnishee, The GMS Group, L.LC. shall immediately send $6,355.54 payable to Deem M. Blumrosen, Attorney, at 4 Southwest Freeway, Suite 850, Houston, Texas 77027.1t is further, ,··· ORQ6g@, ADdl:JDSED AND DECRI;;fiiD tf:lat tre Agreed Order for Temporary Injunctions In Cause No. 396,935; In the Estate of Janet Foltyn McAfee, Deceased, dated June B, 20 11,. Is ..dlssolyffi and all assets Eleserieed tttereiA, aAEI (fT13artlslflat:, lhe SMS ecce!~At eReiAO iR 696 a11d the lfv'uudforest aeeoemt eAdiAg ill404, are releaseetz Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas flAd___G Starting G Senechal Ill Deputy  JAH-e7-eB15 15:26 From:71336B67B1 To:928161'152B5 ~IGNED this _ __,2..._7._~-- •.. ANDERSON PFEIFFER, PC By: Esther Anden;on ~~ SBN: 00792332 845 FM 517 Wes~ Suite 200 Dickinson, Texas 77539 Office: 281.488.6535 Facsimile: 281.614.6205 c Email: esther@probeteguerrflenship.com Of Counsel: Robert Teir, PUC fokr+ IM-, WI pun:~ Cf,q. By: Robert Telr SBN: 00797940 846 FM 617 West. Suite 200 Dlcldnson, Texas TI539 Office: 832.365.1191 Facsimile: 832.550.2700 Email: rob@telrlew.com Attorneys for Charles Storer, POA for Kenneth Cooper McAfee Mitchell & Duff, LLC \. __ By: Mary Elizabeth Duff SBN: 06165880 210 Main Street Richmond, Texas 77469 Office: 281-341-1718 Office: 261-341-5617 Attorney for Estate of Rosemary F. McAfee, Deceased By: Dean M. Blumrosen SBN: 02617900 4615 Southwest Freeway, Suite 860 Houston, Texas77027 Office: 713-524-2225 Facsimile: 713-524-6570 Attorney for PlalnUffs/Garnl&hors, Rosemary and Jake Foltyn N:\S(orvr, CharleiiOldetJIOiller Oran~ng Mo~o~ to Qvesh (no! asraed),doa.< OIID!k Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ~44__o G: Siriecnal Ster11ng lU Deputy  (\) '\t C) C) 0.. 622CAUSE NO. 396936-401 INRE § IN THE PROBATE: COURT JANET F. McAFEE, § Deceased § NUMBER ONE § ROSEMARY FOLYN and § C) JAKEFOLYN § N § v. § OF § THE GMS GROUP, LLC and § WOODFOREST NATIONAL BANK, § HARRIS COUNTY, TEXAS .( Defendants § MOTION TO QUASH WRITS OF GARNISHMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Charles Storer, Power of Attorney for Charles McAfee, Defendant herein·, and holder of the accounts Plaintiffs seeks via the Writs of Garnishment Issued by this Court, who moves to quash (dissolve) the two Writs of Garnishment Issued post- judgment In this cause (to Woodforest National Bank and GMS Group), as the Writs reach accounts andfor assets that are wholly exempt from the reach of judgment creditors (indeed from the reach of all creditors). In support of this Motion, Mr. Storer, would show the following: 1 I. INTRODUCTION AND SUMMARY 1. This Court issued two writs of garnishment at the request of Plaf~tlffs. While a judgment creditor has a right to pursue collection on their judgment, Including via garnishment upon depository accounts, Texas and federal law sharply limit what property of a judgment debtor may be taken. Here, both of the accounts are 1 Mr. MtAfee d~lgnated a Power of Attomev because he Is lncartl!rated. I MOTlON TO QUASH~ OF GARNISIIMENT } EXHIBIT I I I ~---------------------------------------------------------------------------------- Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/201 5 Stan Stanart, County Clerk Harris County, Texas Deputy  c-; ~~ 0 0 entirely and undivldedly, protected from the reach of all creditors. Because these CL lf''I accounts may not be taken by any creditor, with any judgment, the two Writs ,,. N issued while the Court was unknowing of the exempt status of these accounts, "' u, should and must be quashed. "" Q II. FACTS AND PROCEDURAL HISTORY '\J 2. Mr. McAfee was convicted of a criminal offense involving the death of the (~ ul decedent, Janet Foltyn McAfee, and is currently serving his sentence at a Texas () c correctional institution. The underlying claim was a wrongful death action against Mr. McAfee. This Court found for the Plaintiffs In the wrongful death action. 3. Post-judgment, the Plaintiffs sought from this Court, and received, two Writs of Garnishment. The Application for Writs of Garnishment made no mention of the exempt status of either account. Rather, the Application simply noted that the garnishees, both Woodforest and GMS, may be Indebted to the Defendant "by ' maintaining or holding one or more bank accounts." Application for Writ of Garnishment, w. ( .. 4. The first Writ of Garnishment reached Mr. McAfee's depository account at Woodforest National Bank ("Woodforesr). This account, however, is beyond the reach of all credftors, Including the judgment creditors in this cause, because the account was opened to receive, received, and Is now holding funds received pursuant to the federal Social Security Disability Insurance ("SSDI") system. The account contains no funds other than those received as Social Security benefits. 5. The second Writ of Garnishment reached Mr. McAfee's depository account held by his former employer, GMS Group, L.L.C. ("GMS"). This account Is also Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas /)~~4__Q ~rtlng GO Sened\St m Deputy  '11 '\t C) C) beyond the reach of all creditors, including the judgment creditors In this cause, 0. because the account Is Mr. McAfee's tax-deferred retirement benefit account lf'l C'J 11'•, d: arising from his employment with GMS. ~· 6. In lieu of an Answer, GMS reported to this Court that It Is holding deposHory ([1 C) accounts belonging to Mr. McAfee. See letter from Matthew F. Lipman, Esq. (·J (counsel for GMS Group) to Stan Stanart, County Clerk (Oct. 23, 2014), which is 0 lf'i a part of this Court's file and Is Incorporated herein by reference. See Exhibit C) "C." GMS' response Indicates that the account in question is a retirement ( ' account qualified under IRS rules for tax deferment. ld@ Exhibit "2.• 7. Garnishee Woodforest National Bank has yet to answer Its Writ. Ill. ARGUMENT AND AUTHORITIES B. All social security benefits, Including SSDI, are exempt from collection actions, and beyond the reach of deptors, pursuant to a federal statute that was a central component of the original depression-era Social Security Act. See 42 U.S.C. §407; H. R. 7260 (1935); see alsoln ra Frankfin, 506 B.R. 765, 769 (Bankr., C.D. ( '-·· Ill. 2014) ("These proscriptions have been part of the Social Security Act since 1935"). z 9. The absolute nature of the social security benefit exemption has been recognized by the United States Supreme Court, which observed that 42 U.S.C. §407(a) "unambiguously rules out any attempt to attach Social Security benefits." Bennett v. Arkansas, 485 U.S. 395, 397, 108 S.Ct. 1204, 1205, 909 L.Ed2d 455 2 The exemptiOn reaches Social SeCurity retirement Income, disability benefits, and supplemental security Income, amongst other benefits. See Townsel v. Dish Network, 666 F.3d 967, 966 (7111 Cir. 2012). Veterans' benefits are exempt and treated the same way. See Christensen v. Pack, 122 Nev. 1309, 149 P.3d 40,46 (Nev. 2006). Confidential information may have been redacted from the document in complia nce with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas .ft,..J4. _Q -~StaatFftHflfl'tE§HG~&!t481!1fRM!ec;t,~a_.!-+fi~I-L_ _ _ _ _Deputy  "1 ~l' Ci C' (1988). Cl. lf"l 10. The same complete exemption also reaches accounts that qualify for deferment \\J U'\ of federal income tax, Including Mr. McAfee's 401 (k) account that Is the subject of ~· "' the GMS garnishment. IRS qualified retirement accounts are exempt tram li'1 ,. 0 collection actions, and beyond the reach of debtors, pursuant to Texas law. See l\1 Tex. Prop. Code, §2.0021. The legal Issue, and exempt nature, regarding both 0 IIi accounts Is neither controversial nor a close call. 0 IV. EXEMPTION OF THE WOODFOREST (SOCIAL SEC URI~) ACCOUNT -c. A. The Exemption for Social Security Benefits is Statutory and Contains No Exceptions 11. The federal statute protecting federal social security benefits from the reach of creditors, Including those on deposit, Is unequivocal and sweeping in Its scope. It is so protective of. federal benefits, it goes as far as to prohibit recipients of these benefits from voluntarily choosing to assign or alienate these benefits, even for valuable consideration. See 42 U.S.C. §407. Indeed, the sole manner these (_ funds can be put into the hands of others is through standard purchases of goods and services after the benefits have been cashed or deposited. These funds may not be assigned to creditors, including by the involuntary means of garnishment. See Townsel v. Dish Network, 668 F.3d 967, 968 (71h C!r. 2012) ("A creditor that tried to garnish or attach Social Security benefits ... would 3 encounter a §407 defense). 3 The statute creates three separate protections for social securfty benefits. It forbids assignments of such benefits. See 42 U.S.C. §407(a). Second, It makes these benefits beyond the reach of a bankruptcy trustee. See /d. Third, and relevant here, II exempts these benefits from state or federal judicial action. See /d. f'none of the moneys paid or payable or rights existing under this subchapter shall be .. ..... ... "'""' ,..,,.,.,.,.,"......................-........ . . . ,.. ,.. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A_44_ Stertlng GO senechallll .0 Deputy  12. The absolute nature of the exemption is based on Congress' Insistence on firm and secure protection for "beneficiaries and those dependent on beneficiaries from the claims of creditors." Reams v. Oklahoma, 411 F.3d 1164, 1172 (10th Cir. 2005); see also In re Greene, 27 B.R. 462, 464 (Bankr., E.D. Va. 1983) ill (§407 "deals with the rights of social security recipients and seeks to protect !heir benefits from the reach of creditors"). 13. In fact, Congress wanted to protect beneficiaries "from seizure in the legal process." /d. By doing so, Congress ensured that the underlying purpose of social security benefits, to provide a minimum level of support and financial stability, cannot be hindered by creditors, regardless of the merits of !he creditors' claim. See id.; see also In re Buren, 6 B.R. 744, 746 (Bankr., M.D. Tenn, 1980) ("The purpose of the Social Security Act of 1935 was to provide a minimal level of economic security for the unemployed, the elderly, the homeless, anq the blind"). 14. The Woodforest account that Plaintiffs seek to garnish ls funded with social security deposits. See Deposit/Transaction record of Woodforest National Bank (showing monthly direct deposits as received from "SOC SEC US TREASURY'')! 15. While Mr. Afee Is disabled, he is admittedly not homeless, elderly, or blind. The lack of a destitute state, however, as well as the existence of other means of support, such as the Texas Department of Corrections, does not cause the subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or Insolvency laYI'). 4 A spreadsheet showing all deposits Into the account since December of 2009 Is attached ID lhls pleading as Exhibit A. The Woodforest-generated slatement of account activity is attached to this pleading as Exhibit B. The account ac!Mty ceases in November, 2010 except for the exclusive continuing Social Security benefits directly deposited and Interest on the account See /d. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A~d G. Stertlng Senechal Ill o Deputy  j·... ~ ~:) () shedding of the exemption of these funds from garnishment or collections. The CL (l Social Security Act uses absolute language, devoid of any exceptions, for any (\j 111 circumstances. See Philpott v. Essex County Welfare Board, 409 U.S. 413,415, ~l· 93 S.Ct. 590, 34 LEd2d 608 (1973) (because "the language is all-Inclusive,• the Vi -· ~J Social Security Act prohibits any state from reaching federal disability benefrts); N ~- id., 409 U.S. at 416 ("it Imposes a broad bar against the use of any legal process (~ u~ c to reach social security benefits").5 There Is, therefore, no need-testing for the exemption to apply. Cf. Reams v. Oklahoma, 411 F.3d at 1172 \'To tinker with ( that scheme could open the door for a loss of protection down the road"). 16. Rather, the exemption Is absolute. The statutory language, the United states Supreme Court noted, "is broad enough to reach all security benefits," no matter the cause of the benefits or the situation of the beneficiary." Philpott v. Essex County Welfare Board, 409 U.S. at 417; see also In re Carpenter, 614 F.3d 930, 932 (81h Clr. 2010) (exemption statute Is unambiguous, and therefore courts have no need for legislative history or implied exceptions); accord, In re Ragos, 700 F.3d 220, 222-224 (51h Clr. 2012).6 17. The statute, therefore, Is an unyielding prohibition on the garnishment sought In this c~se. See N.LR.B. v. HH# Trucking, Inc., 755 F.3d 468 (ih Cir. 2014) ("Social Security benefrts .. . cannot be garnished or otherwise attached after 5 PhHpot was an unanimous decision/opinion of the Supreme Court. 8 There was, for a brief, time an Implied excepUon, In just one federal circuit, for beneficiaries who did not need the social security funds for their sustenance. See Citronelle-Mabile Gathering v. Watkins, 934 F.2d 1160 (11 1h Clr. 1991). Not one of the Citronelle courfs sister circuit courts adopted that holding given the absolute language of the statute. Citronelle's reach, In any event, tennlnated at the hand of the Supreme Court. See Law v. Siege/,- U.S.-, 134 S.Cl11BB, 1196,188 L.Ed2d 146, B2 USLW 4140 (Marth 2014). Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  receipf'); NCNB Financial Services v. Shumate, 829 F.Supp. 178, 180 0/V.D. Va. Jl 1993) (statute "prohibits attachment, levy, or garnishment on such benefitsj; In ., 1,\j IJI re Franklin, 506 B.R. 765, 773 (Bankr., C.D. 111.2014) (exemption provision is not tied to Bankruptcy Code and Is assertable defensibly Including against garnishments). In re Miller, 445 B.R. 504, 507 (Bankr., D.S.C. 2011) (the statute "contains no limiting language" and therefore extends to all social security income); id., ("section 407(a} operates as a complete bar to the forced inclusion of past and future social security proceeds In the bankruptcy estate') [quoting In re Carpenter, 615 F.3d 930, 946 (Blh Cir. 2010)]; see a/so Bennett v. Arkansas, 485 U.S. 395, 398, 108 S.Ct. 1204, 1205-06, 99 L.Ed2d 455 (state may not attach social security benefits of state prisoners) (per curiam); Marengo v. First Massachusetts Bank, 152 F.Supp.2d 92 (D. Mass. 2001) (efforts to reach account contained benefrt deposits violated Social Security Act). 18. Judicial interference with these funds, Indeed, is so disfavored, It has been held to Implicate the constitutional due process rights of social security beneficiaries. ( See Dionne v. Bouley, 757 F.2d 1344, 1350 (1st Clr. 1985) ("It is also clear that Dionne's interest In retaining her exempt social security funds free from attachment was the kind of property Interest that is entitled to due process protection"). 19. Earlier this year, the United States Supreme Court once again held tha~ the statute means what it says: § 522 does not give courts discretion to grant or withhold exemptions based on whatever considerations they deem appropriate. Rather, the statute exhaustively specifies the criteria that will render property exempt. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy  - - - - - - - - - - - - -·--- · ·- - (']) ~ (,J 0 t\ Law v. Siegel,- U.S.-, 134 S.Ct. 1188, 1196, 188 LEd2d 146,82 USLW4140 V't (\j (March 2014); see also id. ("courts are not authortzed to create additional ,•. IIi exceptions"); In re Franklin, 506 B.R. at 773 ('Congress has strongly expressed \rt ,. Its policy of protecting social security benefits, and it is not for the courts to read C'•'' N an Implied exception" Into the exempting statute). ... ,. \.J 20. The mountain of precedent and the unambiguous wording of the federal statuiB U"1 ::; mandate the quashing of the Woodforest writ. Social security funds can never be .. ( used to pay creditors, except when received, turned into cash, and become the subject of voluntary spending by the debtor. See In re McFarland, 481 B.R. 242, 250 (Bankr., S.D. Ga. 2012) (social security benefrts remain exempt from creditors after they are "received by the Social Security recipient and deposited Into the bank'1; In re Moore, 214 B.R. 628, 630 (Bankr., D. Kan. 1997) (the funds do not lose their exempt status when deposited Into a bank account'1; see also S & S Diversified Services v. Taylor, 897 F.Supp. 549, 552 (D. Wyo. 1995) (Social 7 ( __ Security benefrts remain exempt when deposited Into joint bank account). 21. These benefits, and the Woodforest Bank account, are, absolutely and entirely, beyond the reach of any creditors, and therefore an impermissible object of a writ of garnishment. See NCNB Financial Services v. Shumate, 829 F.Supp. at 180 (W.O. Va. 1993} (statute "prohibits attachment, levy, or garnishment on such 7 One creditor can get at social security benellts: the government of the United States. See Lockhart v. United States, 546 U.S. 142, 145, 126 S.Cl699, 701, 163 L.Ed2d 557 (2005) (federal government may attach social security benefits of federal student loan debtors. Congress, however, expficiUy passed an exception to the no-attachment provision of the Social Security Act to achieve that result See 31 U.S.C. § 3716(c)(3)(A)(J). The fact that Congress had to twice-amend. the debt collecUol) legislation, and specifically overrtde the anti-creditor provision of the SOCial Security Act, demonstrates how steadfast lhls protection remains. C onfidential inform ation may have been red acted from the document in complia nce with th e Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A..J4 Stef1ing GO Senechal lit .o Deputy  benefits"); fn re Franklin, 506 B.R. at 773 {Bankr., C.D. 111.2014) (exemption provision Is not tied to Bankruptcy Code and is assertable defensibly Including .... against garnishments). To ens~;ne that the congressional/statutory protection oi· social security benefits is achieved, writs of gamfs.hment Inadvertently issued without the Court's knowledge of the exempt status of these funds, must be quashed. See NCNB Financial Services v. Shumate, 829 F.Supp. at 181 () iii (quashing writ to the extent it reached exempt funds).8 0 B. COMINGLING OF SOCIAL SECURITY BENEFITS DOES NOT AFFECT TH8R ·C. EXEMPT STATUS, AND ANY SUCH COMINGLING IN THE WOODFOREST ACCOUNT CEASED YEARS AGO 22. It may be true that the Woodforest Account was occasionally used to hold other assets of Mr. McAfee, unrelated to his social security benefrts. This has no bearing on the protected status of the account and of the social security funds within ft. See NCNB Financial Services v. Scumate, 829 F.Supp. 178, 180 ryv.o. Va. 1993) ("Social security benefits are protected even if they are commingled in a savings or checking account with funds from other sources"); In re Lichtenberyer, 337 B.R. 322, 325 (Bankr., C.D. Iff 2006) (same). 23. While courts may-differ in the accounting method used to calculate protected I funds in a comlngled account, no court has questioned the protected status of I' i I 1 While the federal regulations Insist that banks calculate the 'lookback" amount, reaching two months of deposits, that small period of time only addresses the bank's requirements. None of the deposits of federal benefit funds are reachable by creditors, no matter how long ago the deposit oa:urred. See 31. I C.F.R. §212.6 (duty to determine an amount that the financlallnstitutiOil must protect from creditors); ld., §212,g (safe harbor for financial Institutions form liability claims). The regulations do not, and canno~ change the blanket exemption of federal benefit funds from the reach of creditors. See /d., §212.6 ('Nothing In this part shall be construed to limit an Individual's right under Federal Jaw to assert against a creditor a further exempUon from garnishment In excess of the protected amoun~ or to alter the exempt status of funds that may be protected from garnishment under federal law. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A~d · .o . Starting G. Senechal lit Deputy  social security benefits in a comlngled account On the contrary, the protected status is 'black-letter law,' natlonaUy. See Philpott v. Essex County We/faro Board, 409 U.S. 413,416-17, 93 S.Ct. 590,592-93,34 L.Ed2d 608 (1973) (funds •.. exempt so long as they maintain the character of money); In m King, 508 B.R. U'l 71, 78 (Bankr., N.D. Ind. 2014) ("commingling of an earned Income credit refund with other funds does not affect the ablltty to claim the statutory earned income credit exemption"); In m Lantz, 451 B.R. 843, 847 (Bankr., N.D. Ill. 2011) (depositing funds into an account that contains other funds does not lose exempt ·( status for social security funds, if the latter can be traced); see generally 2A Soc. Sec. Law & Prac. §34.8 (Sept. 2014). 24. Because the account may have received, and may have comingled funds on deposH, this Court can hold a hearing to trace the protected assets, if the Garnishor deems -such a hearing worth the time and expense. See Philpott, 409 U.S.at 416-17, 93 S.Ct at 592-93; see a/so Christensen v. Peck, 149 P.3d at 48 (it "defies logic" to argue that exempt benefits lose that status with comingiing).9 25. in the present case, the Court need not be con~med about choosing .the best ·method, as the bank records for the account show that the funds now on depostt came exclusivelv from the Social Security Administration. See In m Hensley, 393 B.R. 186, 198 (Bankr., E.D. Tenn. 2008) (accepting testimony that entire 8 Tracing can be done through the last In/first out method {UFO), lastlnllast out {LIFO), and other means. All calculations are •an equitable substitute for the lmposslbiHty of specific Identification.• In re Lantz, 451 B.R. at 848; In re Uchtenberger, 337 B.R. 322, 325 {Bankr., C. D. Ill. 2006) {selection of methods should be guided by the principle that exemptions are to be Interpreted noorally, In favor of the debtor). In other Instances, courts have chosen a pro-rata basis by measuring the percentage of deposits that came from the exempt source. See Neilson v. McGuire, 2006 WL 1875383, at"4 {D. Nebr. 2006). Confidential information may have been r ed acted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ft~ Q Sterling G. Senechal Ill Deputy  (\; u·1 C) 0 source of funds In bank account except for one gift were social security Cl.. benetits). 10 ttl N U"i V. EXEMPTION OF THE GMS (IRA) ACCOUNT "'''' 26. The exemption for IRS qualified tax-deferred retirement accounts, such as Mr. ~·! •. ~· t .•. McAfee's GMS account, comes from state law. See Tex. Prop. Code, N ... §42.0021(a) (Including within exemptions •a person's right to the assets held in or () U'1 to receive payments, whether vested or not, under any stock bonus, pension, 0 annuity, deferred compensation, profit-sharing, or similar plan"). Such funds and ..( ' such accounts are "exempt from attachment, execution, and seizure for the satisfaction of debtsft so long as the account Is exempt from immediate federal income taxation. /d.; sea also Lozano v. Lozano, 875 S.W.2d 63, 66 (TexApp.- Houston [141h] 1998}. iRAs have been exempt from the reach of creditors in Texas, including judgment creditors, since 1987. See Williams v. Texas Commerce Bank, 766 S.W.2d 344,346 (Tex.App.- El Paso 1989). 27. The GMS account is, was intended to be, and is set forth by GMS as a tax- ( deferred retirement account, and qualifies for exemption under §42.0021(a). See Letter from Matthew E. Lipman (counsel for GMS) to County Clerk (Oct. 23, 2014) (Exhibit 2) (describing garnished account as a "DLJ Qualified Retirement Plan"); sea a/so Summary Plan Description for GMS Group, L.L.C. Salary 10 A spreadsheet showing all deposits Into the account since December of 2009 is attached to tills pleading as Exhibit A. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A..J.J .o -:Q1'-*•~el'1i"HI~Mg~G<-1SS;eMFI'W!&e.em.Raatl-I'IIR-l_ _ _ _ __ Deputy  ~) lil 0 t;J Savings Plan, at p. 3, \{6 (describing employee contributions as 401(k) lax- Cl, deferred contributfons). 11 U"l ('J u·1 28. The GMS account, therefore, may not be turned over to a creditor, Including by r•· garnishment. See Bergman v. Bergman, 888 S.W.2d 580, 586 (Tex.App. - El ,. Iii C"··' Paso 1994) (reversing turnover order bec~use account was exempt); accord Nu- i\1 •" Way Energy Corp. v. Delp, 205 S.W.3d 667, 679 (Tex.App. -Waco 2006); Kent CJ u: v. Holmes, 139 S.W.3d 120, 131 (Tex.App. - Texarkana 2004); Bargman v. 0 Begman, 888 S.W.2d 580, 586 (Tex.App. - El Paso 1994); Morgan v. Horton, -c. 675 S.W.2d 602, 604 (Tex.App. -Dallas 1984). The unanimous voice of the courts results from the clear legislatiVe purpose to "protect the Interests In the retirement fund from creditors and assignees" Kent v. Holmes, 139 S.W.3d at 131. 29. Like with social security benefits, the exemption for tax-deferred retirement accounts Is read without neither exemptions nor narrowness, to fulfill a state policy favoring debtors that has existed since the nineteenth Century. Sea c· Bergman v. Bergman, 888 S.W.2d 580, 586 (Tex.App.- El Paso 1994) id., 888 S.W.2d at 585 (''the long standing public policy of Texas has favored debtors over creditors) [cftlng Bell v. Indian Live-stock Co., 11 S.W. 344, 346 (Texas 1889)]. 30. There can be little doubt that a firm such as GMS, which represents itself as a full service brokerage house, and advises people on planning for their retirement,. presented their employees with anything other than an IRS-quafffled plan for their 11 The chart of accounts Included In Mr. Lipman's letter (Exhibit 2 to that letter) Is attached to this pleading as Exhibit C. The Plan Description Is attached to this pleading as Exhibit D. Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas JL,~Ster11ng G Senechal Ill _Q Deputy  'il' !fl C) C) retirement benefrt. See In re Youngblood, 29F.3d 225, 228 (5th Cir. 1994) (tax C1. treatment of account Is determinative Inquiry under §42.0021); see also /d., 29 :fi ~ lf'! F.3d at 229 f'the legislature Intended for its own state courts ... to defer to the t.::l· IRS in determining whether a retirement plan Is 'qualified' under the Internal i{i .. r~ Revenue Code"); Lozano v. Lozano, 975 S.W.2d at 67 ("evidence that an ~~ ,,. account is an individual retirement annuity is sufficient to establish that it Is (/ U'1 C) exempt'). 12 31. Whffe Mr. Storer has, and can put on evidence showing the tax-exempt nature of ·c· the GMS account, that exemption Is clear from the facial descriptions of the account Issued by GMS. In any event, garnishment has no basis In Texas' common law, and Is ·purely statutory. Consequently, a party claiming an entitlement to garnishment has to prove that the property he Is after Is subject to the procedure. See Del-Phi Engfneering Assocfates v. Texas Commerce Bank, 771 S.W.2d 589, 591 (Tex.App. - Beaumont 1989) (Burgess, J., dissenting) (motion to dissolve writ joins the issue, and then party seeking garnishment must C. put on proof that they are entitled to the funds). 32. That burden cannot be met by the Plaintiffs in this cause, as the GMS account Is, beyond question, a tax-deferred retirement account and beyond the reach of all credltors. 13 12 Moreover, unlike with social security benefits, it Is the account that Is exempt, the source of the funds Is Irrelevant See ld., 975 S.W2d at 68. 13 If the burden Is placed on Mr. storer, as the party claiming the exemption, he can easily do so If permitted an evidentiary hearing with sufficient time to subpoena the needed records. Confidential information may have been redacted from the document in compliance with the Public Infor mation Act. A Certified Copy Attest: 9/29/201 5 Stan Stanart, County Clerk Harris Coun ty, Texas ftr.44_ .Q --e.St"'e Of counsel on the Pleading: c·) /s/1{.ooert 'feir RobertTeir Robert Teir, PLLC 845 FM 517 West, Suite 200 Dickinson, Texas 77539 Office: 832.365.1191 Facsimile: 832.550.2700 Email: rob@probateguardianship.com Attorneys for Mr. Charles Storer, Power of Attorney for Kenneth McAfee ' ) l ... · MOTION TO PARTIALLY RELEASE INJUNCTION Page 3 of4 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy  ~· (0 CERTIFICATE OF SERVICE ~J () L\. I hereby certify that a true and correct copy of the foregoing has been forwarded to all parties and/or counsel of record through our electronic seryjce provider, certified Ui ~,J mail, return receipt requested and/or facsimile on this flv day of February,ID VI "" 2015. ~ Ond~.;..,____ U'l Esther Anderson "' (~ cc: Mary Elizabeth Duff ('-.J 210 Main Street VIA ELECTRONIC SERVICE PROVIDER & Richmond, Texas 77469 FACSIMILE 281-341-5517 0 Vi Ci Matthew E. Lipman Faust Oppenheim LLP () 488 Madison Avenue New York, New York 10022 VIA ELECTRONIC SERVICE PROVIDER & FACSIMILE 212-371-8410 Dean M. Blumrosen, Esq. 4615 Southwest Freeway Suite 850 VIA ELECTRONIC SERVICE PROVIDER & Houston Texas 77027 FACSIMILE 713-524-5570 Woodforest National Bank, through their registered agent James D. Dreibelbis 25231 Grogan's Mill Road Suite 100 The Woodlands, Texas 77380 VIA CMRRR 'f '/I~ '1\ 00. o:>8& 15Dt( ~IPL/S SI () Charles Storer N:\Storer, Char1es\Pieadfngs, Motlona, ApplfcaUons\Mot to Raleau lnjunc:tlon.docx MOllON TO PARTlAlLY RELEASE INJUNCTION Pago4cf4 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A_..J.J_ _Q -~St'*"anrrttt.ln.....grlG;o::t--iS~e....n=ect....m\att-1*IUI--- - - - -0 eputy  CAUSE NO. 396,935 IN THE ESTATE OF § IN THE PROBATE COURT § JANET F. McAFEE, § NUMBER 1 OF § DECEASED § HARRIS COUNlY, TEXAS Ui ·•···················•··•··•·••···••··•··•··········•·························• .... CAUSE NO. 396935-401 0 N 0 IN RE § IN THE PROBATE COURT U'i JANET F. McAFEE, § 0 Deceased § NUMBER ONE § c. ROSEMARY FOL YN and JAKEFOLYN § § § ~ § OF § THE GMS GROUP, LLC and § WOODFOREST NATIONAL BANK, § HARRIS COUNlY, TEXAS Defendants ORDER GRANTING STORER'S MOTION TO RECONSIDER MARCH 16, 2015 ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION AND RELEASING SOCIAL SECURilY PROCEEDS On this day came to be considered the Motion for Reconsideration C?f March 16, ··-· 2015 Order Partfa//y Releasing Temporary fn}unc:tfon and Motion for Entry of Order Releasing Social Security Proceeds from Injunction, filed by Charles Storer, Power of Attorney for Kenneth McAfee, and after review and consideration of said Motion, the evidence, the responses filed, and the arguments of counsel, the Court finds the following: 1. On June 8, 2011, all parties to the above stated cause entered an Agreed Order for Temporary Injunction. ORCER PAGE 1 I11 EXHIBIT I Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ~ ~=-.:. 4 .c-~ ''d~-~ _Q_Deputy ~lng 0. Scmechallll  (") w 0 2. On January 27, 2015, the Court entered an Order Partially Granting Motion to 0 C\. Quash Writs of Garnishment as to two accounts: U'i ~.j a. Woodforest account ending In 404, in the name of Kenneth Cooper u"l e• McAfee holding social security proceeds of Kenneth Cooper Mc:Afee; and ul e• b. GMS account ending In 606, an Individual retirement account of Kenneth ,. ,~ N McAfee. ~·· 0 u~ The Court also ordered that all other accounts at GMS Group, LLC, holding 0 assets of Kenneth McAfee or for the benefit of Kenneth C. McAfee be subJect to I \ the writs such that Rosemary and Jake Foltyn recover $6,694.39 in account number 55H056008 and $1,661.15 in account number 55H004628 for a total of $8,355.54 from GMS Group, L.l.C., upon receipt of an order releasing the Agreed Order for Temporary Injunction. 3. On March 16, 2015, the Court entered an Order Partially Releasing Temporary Injunction releasing both the non-exempt accounts Plaintiffs and/or the Estate wanted. 4. On Apri115, 2015, Charles Storer filed a Motion for Reconsideration of March 16, 2015 Order Partially Releasing Temporary Injunction and Motion for Entry of Order Releasing Social Security Proceeds from Injunction. It is therefore, ORDERED, ADJUDGED AND DECREED that this Order shall be and is a partial release of the June 8, 2011 temporary injunction as to the Woodforest account number XXXXXX3404, In the name of Kenneth Cooper Mc:Afee holding social security benefits of Kenneth Cooper McAfee. ORDER PAGE2 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  ~ r.O ('; () All other accounts and assets described in the June 8, 2011 Agreed Order for a. Temporary Injunction remain subject to the Agreed Temporary Injunction. ~~ N ...U'l SIGNED this _ _ _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ _, 2015 . U"l <"" 0 N Cl JUDGE PRESIDING ~·I 0 ( APPROVED AND ENTRY REQUESTED: (_ ANDERSON PFEIFFER, PC By: Esther Anderson SBN: 00792332 By: Rob Teir, of Counsel SBN: 00797940 845 FM 517 West, Suite 200 Dickinson, Texas 77539 Office: 281-488-6535 Facsimile: 281-614-5205 Email: esther@probateguardlanship.com Attorneys for Charles Storer, POA for Charles McAfee N:\Storer, Charlas\Orders\order granting reconsJdaraUon.clocx ORDER PAGc3 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A::ni~ Deputy  Tab 15 May 14, 2015 Transcript  1 1 TRIAL COURT CAUSE NUMBER 396,835-401 2 IN RE: THE ESTATE OF * IN THE PROBATE COURT OF JANET FOLTYN McAFEE, * 3 * ROSEMARY FOLTYN and * 4 Jake Foltyn * HARRIS COUNTY, T E X A S * 5 THE GMS GROUP, LLC and * WOODFOREST NATIONAL BANK, * 6 Defendants * COURT NUMBER ( 1) ONE 7 8 MOTION FOR RECONSIDERATION TO PARTIALLY RELEASE FUNDS AND MOTION FOR SANCTIONS HEARING 9 10 11 Came to be heard on this the 14th day of May, 2015, Motion 12 for Reconsideration to Partially Release Funds and Motion for 13 Sanctions Hearing, in the above-entitled and numbered cause, 14 and all parties appeared in person and/or being represented by 15 Counsel of Record, before the Honorable Loyd Wright, Judge 16 Presiding. 17 18 VOLUME OF 19 20 0 R I G I NA L 21 22 23 24 25  2 1 APPEARANCES 2 ATTORNEY FOR CHARLES STORER: 3 Robert Teir State Bar No. 00797940 4 845 FM 517, Suite 200 Dickinson, Texas 77539 5 Telephone: 831-365-1191 6 ATTORNEY FOR PLAINTIFFS, ROSEMARY FOLTYN AND JAKE FOLTYN: 7 Dean Blumrosen 8 State Bar No. 02517900 4615 Southwest Freeway, Suite 850 9 Houston, Texas 77027 Telephone: 713-524-2225 10 ATTORNEY FOR THE ESTATE OF 11 ROSEMARY F. McAFEE, DECEASED: 12 Stacey Severovich State Bar No. 24088393 13 210 Main St. Richmond, Texas 77469 14 Telephone: 281-341-1718 15 16 17 18 19 20 21 22 23 24 25  3 1 THE COURT: The McAfee Estate. 2 MS. ANDERSON: Yes, Your Honor. Good morning, 3 Judge. 4 THE COURT: Good morning. 5 MR. BLUMROSEN: Good morning, Judge. 6 THE COURT: Good morning. 7 MS. SEVEROVICH: Stacey Severovich, here on 8 behalf of Rosemary Foltyn, the Administratrix of the Estate. 9 And that's S-E-V-E-R-0-V-I-C-H. 10 MS. ANDERSON: May I proceed, Your Honor? 11 THE COURT: Yes. 12 MS. ANDERSON: Just to let you know what's 13 coming, there are actually two things that were set today. One 14 was the Motion for Reconsideration and another was a Motion for 15 Sanctions. And after having a discussion with Ms. Duff 16 yesterday, I advised her that I would pass the Motion for 17 Sanctions pending further discussions that we are having. 18 THE COURT: Okay. 19 MS. ANDERSON: So the only thing that's before 20 the Court today is with regard to a Wood Forest Bank account. 21 And I don't know, well, in the Order that the Judge signed at 22 the last hearing you didn't deny our request, you just didn't 23 sign an Order allowing us access to the funds. So if I can 24 just go through a couple of things, this started with a Writ of 25 Attachment on various bank accounts, primarily the GMS account  4 1 and the Woodforest account. 2 Since that time we had a hearing on January 27 3 of 2015, and the Court entered an Order partially granting a 4 quash on that. And in that Order, it specifically addressed 5 the account that we are here for today, so at the beginning, in 6 the first paragraph, it states that the Court makes -- finds 7 the following, and in paragraph 2, the Court found that the 8 Woodforest account ending in 404, which is one we are talking 9 about, holds assets in the name or the benefit of Kenneth 10 McAfee. And then if you go down to the paragraph 5, the Court 11 further found that the Woodforest account ending in 404 holds 12 exclusively Social Security benefit proceeds of Kenneth McAfee, 13 which benefits are exempt from garnishment under 42 USC sec. 14 407, and so the only thing we are before the Court on today is 15 a bank account that includes only Social Security proceeds. 16 At the hearing on January 27th, we had that 17 discussion. Everyone saw the bank records and this Court made 18 a finding that that bank account only included Social Security 19 proceeds. So after that, we got that determined and then we 20 needed to release a Temporary Injunction that's been in place 21 for a very long time, and so I filed a Motion to Partially 22 Release or lift the Temporary Injunction. I wanted our one 23 Social Security account to be lifted because it's protected. 24 That money will never go toward anything. And then I asked for 25 two of Plaintiff's accounts to be released. Rather than having  5 1 two people do the work, I just put it all in one Order. At the 2 hearing, and I believe the associate judge was sitting at that 3 time so she did not have the history that this court had, but 4 for whatever reason or however it happened, the Court signed an 5 order lifting the Temporary Injunction as to the two GMS 6 accounts, which are the ones the Plaintiffs were seeking. I 7 believe they have already received their $8,000 but did not 8 issue an Order lifting the Temporary Injunction on the Social 9 Security accounts. 10 Now, in what I have learned from Plaintiff's 11 counsel, Ms. Duff, is that they -- their position is they have 12 a claim to a certain dollar amount, and I'm just going to use 13 the number 38,000 for ease, but it's a 25,000 and a 9,000, so 14 about $38,000. Their position is that that money came out of a 15 community property account, went into the Social Security 16 account, and so then part of the money in that Social Security 17 account they are entitled to. What our position is, this Court 18 has already made a finding that the only money in that account 19 is Social Security money. 20 We are not saying they don't have a claim to the 21 38,000, we are saying that they will never be able to get the 22 38,000 from the money that's in the Social Security account 23 because it's exempt from garnishments, from judgments, from 24 everything, because of federal law. There is other assets. It 25 ranges from 600 to a million dollars, depending on which  6 1 Inventory you look at. But there are other assets that that 2 money could potentially come from. This is just not the bank 3 account it's going to come from. There are no exceptions to 4 the rule. The Court has already made the findings. It entered 5 an Order in January. There was no Motion for New Trial or 6 Motion for Reconsideration. It's a done deal. And so for it 7 to be attacked now, one, it's improper because it's beyond the 8 time frame. It's a collateral attack on this Court's previous 9 decision and they know, they know that that money is not 10 subject to anything based upon federal law. 11 I remember at our very first hearing there was a 12 discussion about the circumstance of the case and how bad it 13 was but the Court said, I'm going to follow the law, and that's 14 what I'm asking you to do. You have you already made the 15 decision. It's not going to be attached. It can not be 16 attached unless we don't follow the law. And the Injunction 17 needs to be lifted. Once that's done, then there are all of 18 these other accounts which to this date we have tried to give 19 to Plaintiffs. We can't push it on them, Judge. They won't 20 take it. But there are other monies there to address whatever 21 other claims they have. And so all we want today is the Order 22 that was previously filed. I printed it out again. And all it 23 does is lift the Temporary Injunction only the Social Security 24 account. All of the other accounts, I believe on the last 25 page, it's very clear that that Temporary Injunction continues  7 1 for all of the other accounts that are in place. 2 I would also like to say, Judge, aside from 3 that, this Temporary Injunction that everyone is talking about 4 and relying on, you know has been going on for a very long time 5 without a cause of action, without a trial date. It's 6 basically an agreement for everyone to have a standstill. And 7 that's fine. We intend to honor it. But it's time to separate 8 these parties. It's time for the Plaintiffs to collect on 9 their judgment. Mr. Store, who is the agent under a Power of 10 Attorney for Mr. McAfee, is ready, willing and able to do 11 whatever he needs to do to turn over all of Mr. McAfee's 12 assets. It's just time for this case to end and to get these 13 parties separated. There are only two bank accounts at issue 14 that I'm aware of. One is a Social Security account which 15 should be addressed today and the other is the 401 K plan which 16 are Ms. Duff and I are working on. 17 THE COURT: So this account that I did something 18 with in January, it was represented to be all Social Security? 19 MS. ANDERSON: Not only was it represented but I 20 had the exhibits here in Court. Everyone looked at them. We 21 discussed it and showed you, Judge, that each of the bank 22 statements -- nothing has gone into the account. I mean, you 23 see the two thousand and something dollars from the Social 24 Security Administration that have come in on a monthly basis 25 and so the bank statements are whatever the dollar amount is  8 1 like $2,000, $2,000, $2,000, $2,000. It's just very clear and 2 that fact is never going to change. I understand he took money 3 from someplace else and put it in that account but he also 4 THE COURT: That's a problem, isn't it? 5 MS. ANDERSON: It is, but he -- 6 THE COURT: The $34,898.58 that seems to be in 7 question? 8 MS. ANDERSON: Let me finish the story. 9 THE COURT: Okay. 10 MS. ANDERSON: He put it in the Social Security 11 account and then he gave it out. They have a claim for that 12 money. They had a claim and there are other assets to take it 13 from. What I'm saying is, it will legally never come out of 14 the Social Security proceeds. The briefing is done. I mean, 15 it goes on and on and on from the 30's of the basis why the 16 federal government protects Social Security assets. I'm not 17 saying it's right, I'm saying that's the law. I'm saying they 18 have a claim. It's just they can not be paid by the Social 19 Security proceeds, they need to be paid by some other asset of 20 Mr. McAfee's of which there is a lot of. 21 THE COURT: Okay. So maybe I'm missing some 22 aspects of the history of this case, but if somebody put $10 23 million into this account, would that mean that because it's a 24 Social Security account or it's an account that held Social 25 Security funds that you can't reach the $10 million?  9 1 MS. ANDERSON: Absolutely not. But here is the 2 difference, if the $10 million is there, you get it. You just 3 can't touch any of the Social Security money. Because he paid 4 it out, the only thing that was left there, and you can trace 5 it, I know it doesn't make sense, Judge, but it is all briefed, 6 if you can trace the Social Security funds, it's the one that's 7 protected. That is what our federal government has done. It's 8 not my call . 9 THE COURT: Even if it's commingled like this? 10 MS. ANDERSON: And it can be traced, yes, 11 absolutely. And I don't know if the Court has had the 12 opportunity to read the briefing that's done. All of that is 13 discussed. It doesn't matter if it was commingled, it could be 14 traced. In this case we don't even need to trace it. We 15 looked at the hearing that we already had on this issue and we 16 saw the bank statements that are very clear, page after page, 17 of a monthly Social Security deposit. 18 And once again, I have to emphasize, no one is 19 saying they don't have a claim to that $34,000. There are 20 other monies that they can get the 34,000, just like there is 21 other money that they are going to get the $2 million from if 22 they will just take it. 23 THE COURT: All right. 24 MS. SEVEROVICH: Your Honor, and I'm speaking on 25 behalf of Ms. Duff, she is the one that was at the last  10 1 hearing, and it's her position, and I know we discussed on the 2 phone yesterday, but in that judgment on January 27th there was 3 basically the garnishment is let me back up. 4 The January 27th Order went to whether the funds 5 in those two accounts could be exempt from garnishment or if 6 they were subject to garnishment. Now, the Order said that 7 they were exempt from garnishment in those two accounts. But 8 it has always been Ms. Duff's position that just because they 9 are exempt from garnishment doesn't actually go to the 10 characterization of the property. You can have community 11 property that is exempt from garnishment. 12 She has been asking for clear evidence as to 13 tracing where the two deposits, the first one being on April 14 23rd of 2010 for $25,162.66. It says wire tran. There was the 15 second deposit on May 4th, 2010, which was for $9,735.92. It's 16 classified as WT. We assume that's wire transfer again. Ms. 17 Duff has been asking for things that trace where those funds 18 came from so that she could adequately determine if they were 19 community property or separate property. We realize that they 20 are in, quote, a Social Security account, if you will, but that 21 doesn't mean they are Social Security monies, and it is their 22 burden to prove by a clear and convincing evidence that those 23 funds that were two deposits, is the only thing we take issue 24 with, were actually separate property. And so if they were 25 community property, if they were deposited from some other  11 1 community GMS account or something, then actually the Estate is 2 entitled to the fifty percent of that amount. And so that's 3 why we are just asking that, you know, if this Court wanted to 4 release the rest of the funds but put those two deposits into 5 the Registry until we could actually get the documentation that 6 traces those. Ms. Duff was under the impression that Mr. 7 McAfee was not cooperating and he wouldn't give documentation 8 to trace those, so all we have is the one exhibit which was 9 attached showing the deposits. 10 Everything that's in there that says SSDI, or 11 interest, Ms. Duff concedes is fine, that's Social Security. 12 And she realizes those are exempt and those would be his 13 separate property. But those two deposits that are not labeled 14 the same, they are labeled Wire Transfer or WT, she wanted 15 documentation on where that money came from, because if it's 16 community property, then he doesn't get the full amount. 17 THE COURT: What's in the account? How much is 18 in the account? 19 MS. ANDERSON: I believe it is in the 70's or 78 20 or 79, but, Judge -- are you finished? I just wanted to 21 respond to that directly. 22 MS. SEVEROVICH: I believe at the last hearing 23 as far as that judgment, and if I'm speaking out of turn, I 24 apologize, but there was objections made as to the wording and 25 that they weren't actually adjudicating whether or not this was  12 1 community funds or separate property, just whether or not they 2 could be attacked by judgment creditors. Correct me if I am 3 wrong. 4 MS. ANDERSON: And Judge, I will just address 5 those in the order that they were brought in. With regard to 6 the documentation on the account, Ms. Duff has never, never 7 asked for documentation tracing the account. What she asked me 8 to do was to tell her where they came from because she needed 9 to tell her client something. Those were her words to me. 10 What they did do was on the Plaintiff's side in the wrongful 11 death case the Plaintiff sent out discovery. He never filed a 12 Motion to Compel discovery. He never moved forward on it to 13 take that expense to go to where Mr. McAfee is. When Mr. 14 Storer came in, we voluntarily did that for him. Mr. Storer 15 went to see Mr. McAfee. Mr. Store got all the answers and 16 responded to all of the Requests for Production and 17 interrogatories. With that though, even if they are asking for 18 documentation, these are the hoops we have had to jump through. 19 They say they want a tracing on where it came from, yet if you 20 look at the Plaintiff's Original Inventory, she herself tells 21 me where it came from. I mean, in her Inventory she says on 22 5/4, 2010, from GMS account 612, ninety-seven thirty-five 23 ninety-two was transferred to Woodforest 404. On 4/23, 2010, 24 GMS, Account No. 914, twenty-five thousand was transferred to 25 Woodforest.  13 1 A. They know this. They have it. They put it in their 2 Inventory. There is no reason to trace. We have never said 3 the GMS account is not a community property asset. We know 4 fifty percent of it is theirs. I will even say that of the 35 5 or $38,000, it's community property, half of it is theirs. 6 Take the half. We can't give it to them, Judge. They have not 7 moved one step toward collecting any of the assets from all of 8 the other assets that are out there but what they will do is 9 cause Mr. Storer to use his own money to come down here, 10 hearing after hearing, to argue about the same thing that this 11 Court already decided on January 27th. We did it. That is not 12 -- the paperwork that she showed you is not the only thing that 13 was attached to the motion. Attached to the motion were the 14 bank statements from the bank. And so I don't know what else 15 can be shown other than a whole bunch of papers that say $2,000 16 a month, the total is X amount of dollars, it's all Social 17 Security funds. 18 THE COURT: Okay. 19 MS. ANDERSON: And I believe I have handed you 20 the Order. 21 THE COURT: Well, maybe I'm getting confused. 22 Are you saying that out of the 70 or $80,000 account they can 23 have the thirty-four eight ninety-eight? 24 MS. ANDERSON: No. I'm saying that that 25 thirty-four thousand was community property, and if it was  14 1 community property, then one-half is his and one-half is hers. 2 So whatever half of 3 THE COURT: And then one-half is subject to the 4 judgment, which if his is subject to the judgment which would 5 make it all hers. 6 MS. ANDERSON: Except that it comes from 7 someplace else, not the Social Security. Judge, that's one 8 account. If you will look at the Temporary Injunction, it's 9 pages of accounts here. There are so many accounts the 10 judgment is going to be met, and they need to let go of this 11 one that the government has protected and start separating 12 these people. There are only two accounts tying them together 13 and if why is it that since, I don't know, I've been in the 14 case since November or December trying to push it to them, I 15 can't get them to take a penny. 16 MS. SEVEROVICH: We are not saying Ms. Duff has 17 expressed this. We are not saying out of the $70-80,000, 18 whatever is actually traced to be his Social Security proceeds, 19 she agrees, that's his separate property, he can have it. Now, 20 if they are saying that the approximately 35 thousand dollars 21 came from other sources are which are not Social Security funds 22 which are community property, that's why we are saying to put 23 that thirty-five in the Registry of the Court. We would agree 24 to release the rest of it that is Social Security funds. But 25 the thirty-five thousand is not Social Security.  15 1 MS. ANDERSON: But Judge, that decision has 2 already been made. How many times -- we are arguing about it 3 right now. 4 THE COURT: Is that in paragraph five where I 5 said it is exclusively -- 6 MS. ANDERSON: Okay, No. 2 holds assets in the 7 name of Kenneth. No. 5, the Wood Forest account, 404, that's 8 the one we are talking about, holds exclusively Social Security 9 benefit proceeds of Kenneth McAfee. 10 MS. SEVEROVICH: Which are exempt from 11 garnishment but that doesn't meaning whether there are 12 community or separate property funds in there. 13 MS. ANDERSON: It doesn't matter, they are 14 Social Security. 15 THE COURT: I think that's probably an interim 16 order. Here is -- let me tell you the bottom line, if I did 17 something wrong that I can fix I'm going to fix it. The fact 18 that I said something is exclusively, I think that's what you 19 are arguing, that I made a finding that's erroneous and you 20 know it's erroneous 21 MS. ANDERSON: No, sir. 22 THE COURT: Why isn't it erroneous when this 35 23 thousand seems to be non-retirement benefits that 24 MS. ANDERSON: Let me draw you a picture. 25 THE COURT: Do it like I'm a six-year-old.  16 1 MS. ANDERSON: I'm very visual. 2 THE COURT: That's from the movie Philadelphia. 3 MS. ANDERSON: So this is a 35K and we have got 4 a Social Security pot with Social Security of let's just say 5 fifty, okay? 6 THE COURT: All right. 7 MS. ANDERSON: Social Security goes in here. 8 Fifty came in here by two, two, two, two, each month, that 9 totals up to fifty. As soon as it went in here, days before 10 her death, it went out. That's the money that he gave his 11 ex-wife and his son. The bank statements that you looked at 12 were all of these two that total fifty. It is that simple. 13 This was, and hold on just a second, I mean, we are talking 14 about days. 15 THE COURT: There was sort of a brief 16 commingling but the tracing, from your point of view would be, 17 thirty-five comes in and goes out within a short period of 18 time. 19 MS. ANDERSON: Immediately. She died on May 20 8th, 2010. 21 THE COURT: Okay. 22 MS. Anderson: This deposit was May 4th, 2010, 23 that's nine thousand. It went into Woodforest. He gave it to 24 the son. This one came out of GMS 423, two weeks or so before 25 she died, twenty-five thousand, it went out and was paid to his  17 1 wife. That money is gone. Yes, it was commingled but it is 2 clearly traceable. They know he paid it to the wife and son 3 because that's been one of the -- 4 THE COURT: Same amounts in and out? 5 MS. ANDERSON: The exact amounts. I mean, it 6 may have been twenty-five thousand instead of twenty-five one 7 six six, I don't recall, but that was the claim that was 8 potentially, do we go after your ex-wife and the son? We are 9 saying, no, we owe it to you. It goes over here. But it 10 doesn't come out of this bank account. This bank account is 11 Social Security. And Judge, you didn't make a mistake and I'm 12 not BSing you. These are plain-Jane bank statements. We have 13 already done this on January 27th and every time we come back 14 it's the same thing. It's the same thing. And I know that Ms. 15 Duff and I understand what the truth is and that that money is 16 available from other funds. I also know that they can't agree 17 to anything on behalf of their client. 18 MR. BLUMROSEN: May I respond, Judge? 19 THE COURT: Yes, briefly. Or, you know, go 20 ahead. 21 MR. BLUMROSEN: I will be -- I promise you, I'm 22 not happy that I'm here. 23 THE COURT: I understand. 24 MR. BLUMROSEN: As you know, I represent the 25 Plaintiffs in a wrongful death matter. I was served with her  18 1 Motion for Sanctions and her Motion for Sanctions for the first 2 time that I have ever heard this morning I was never notified 3 that she wasn't going forward on it, so that's why I'm here, 4 she never notified me. 5 THE COURT: Okay. 6 MR. BLUMROSEN: But, as you know, Judge, I filed 7 a Response and I also filed a Counter-Motion for Sanctions for 8 her to file her Motion for Sanctions, which addresses actions 9 that my clients have taken, that they knowingly filed improper 10 writs of garnishment. That's number one. And number two, that 11 they attempted to collect assets they knew to be exempt under 12 the law. 13 MS. ANDERSON: Are we going into my Motion for 14 Sanctions and his Response? 15 THE COURT: No. 16 MS. ANDERSON: Thank you. 17 THE COURT: We are going to do that some other 18 week. 19 MR. BLUMROSEN: All I'm saying is, Judge, I 20 wrote her a letter asking her to withdraw that. She didn't. 21 She is complaining about Mr. Store having to come down here for 22 his money. She has made me to come down here to defend my 23 client's actions, put something in writing that there is no 24 basis for. I have responded to that and I have indicated that 25 we want sanctions for her doing that.  19 1 The other thing I would like the Court to know 2 and I want the record to be very clear, she represented to the 3 Court that we haven't done anything to try and collect, we 4 never filed a Motion to Compel. As you are very well aware, 5 you signed an Order compelling Mr. McAfee to respond, so that 6 statement is simply not true. 7 Number two, nobody has ever offered me one 8 penny, not one dime. I promise you, we will take it. We have 9 a $2 million judgment. I've been working on this case for five 10 years. The representation that she is making to you that she 11 is offering us money and we won't take it, is simply not true. 12 If you want to offer me -- any money she wants to offer me that 13 Mr. McAfee has, we will take it right now. So that's just 14 simply not true. I'm not coming down here for fun. I'm not 15 coming down here because we enjoy having hearings, I'm down 16 here because she wanted my client to be sanctioned. 17 MS. ANDERSON: Judge, you were here at all of 18 our hearings. Have you heard me spout and rattle off how we 19 can't give them money? We have had that conversation often. 20 And I want to say that Mr. Blumrosen did not ask me for 21 anything, he told me what to do this week. And as a courtesy 22 to Ms. Duff, who is his co-counsel, who I spoke with yesterday, 23 I told her that I would consider passing the hearing. I 24 considered it. I will pass it. And if need be, I will amend 25 it and include the other account that the writ was issued on  20 1 that shouldn't have been issued. But I would really prefer to 2 just visit with Ms. Duff to continue our discussions and see if 3 everything can be worked out. 4 MR. BLUMROSEN: Just to clarify, Judge, I don't 5 represent the Estate. I'm not on the Estate case. If there is 6 anything to do with the Temporary Injunction, things of that 7 nature, that doesn't address the wrongful death, so I am Ms. 8 Duff's co-counsel only to the extent that we represent the same 9 parties, Ms. Foltyn. But I am not co-counsel on the Estate 10 matter, I'm only counsel of record along with Ms. Kelly Zeigler 11 on the wrongful death action. And I will state again on the 12 record, they have not ever offered us anything at any point in 13 time. And believe me, I will be sending a letter out today, 14 please let me know what you would like to offer us, we will be 15 glad to accept it. 16 MS. ANDERSON: And Judge, those things have been 17 done. These people work together, Ms. Duff and Mr. Blumrosen, 18 they have the same client. I'm talking to multiple attorneys. 19 And even yesterday, I told Ms. Stacey, I really don't want to 20 talk with you, I need to talk with Ms. Duff, because it is too 21 many different opinions, versions, thoughts of what is going 22 on, so I'm trying to keep it centralized to one. 23 The bottom line is, if Plaintiffs would file 24 something with the Court that it's just an Order, that all of 25 these assets that are Mr. McAfee's go to the Plaintiffs, we  21 1 will sign off on it. It's that simple. And that hasn't been 2 done since the date of the judgment. It hasn't been done since 3 I came into the case in November. It hasn't been done to date. 4 Instead, there is just this list of assets he's, you know, 5 keeping it from them. And we are not. We are ready to give it 6 to them. They need to just take it. 7 THE COURT: I mean, I don't think it's my job to 8 prepare the documents for this. What can I do to get y'all to 9 sit down and see if these representations are real and get this 10 over with? 11 MS. SEVEROVICH: We will take the 35. I'm 12 kidding. 13 THE COURT: Would a mediation -- 14 MS. ANDERSON: I think part of the deal is 15 bringing at least Ms. Duff and I together. I know she is a 16 very busy person, you know, I mean, I can only count on someone 17 so much, so -- we are just not able to get on the same 18 schedule. But I really do think that if we got together it 19 would happen. I don't even think it needs to be a mediation. 20 MR. BLUMROSEN: On the wrongful death side we 21 will take anything she wants to offer, we will take it. I will 22 make that representation. This matter has been done on a 23 contingency basis. Anything she wants to offer to help satisfy 24 the $2 million judgment, we will take it. I'm not saying it 25 will extinguish the $2 million judgment. We will take whatever  22 1 he has. I will represent that to the Court right now. We 2 haven't been offered anything. 3 MS. ANDERSON: And we want the credit for it 4 because it will pay the entire $2 million judgment. 5 MR. BLUMROSEN: Certainly get the credit for it. 6 MS. ANDERSON: But I've been dealing with Ms. 7 Duff because she is the one who has the Inventory. I have no 8 idea I don't know what this wrongful death stuff is, all I 9 know is he has got a judgment. Okay? Well, where is the money 10 coming from if not from Mr. McAfee who is addressed in the 11 Estate Inventory. If he doesn't represent -- but that's why 12 I'm dealing with her. 13 THE COURT: Mr. McAfee, let me, and then I have 14 got to move on, but so you have this issue of what should be in 15 her Estate, correct? 16 MS. ANDERSON: We -- 17 MS. SEVEROVICH: Right, we are still figuring 18 that out. 19 THE COURT: And that's her property, however 20 that works out. And then you have what's left is Mr. McAfee's 21 property, which some of it is exempt and some is not, and 22 whatever is nonexempt, up to $2 million, should go to satisfy 23 the judgment. 24 MS. ANDERSON: And that's what we are trying to 25 do. It's two accounts. It's Social Security of about seventy  23 1 thousand and the 401 which Ms. Duff and I are discussing right 2 now. 3 THE COURT: Which has what? 4 MS. ANDERSON: Well, it's really a little more 5 complicated. 6 THE COURT: Well, what's in it? How much money? 7 MS. ANDERSON: About two hundred thousand. 8 THE COURT: So how are we satisfying a $2 9 million judgment? 10 MS. ANDERSON: Because there is about a million 11 in her Estate, which means there is a million in his Estate on 12 the Inventory. 13 THE COURT: Okay. 14 MS. ANDERSON: That's only her half. And there 15 was a piece of real property that we say was valued between 16 eight hundred thousand and nine hundred thousand, and under 17 common law he gets a credit for that. She is claiming it's all 18 theirs, and that's fine, we want her to have it, but he needs 19 his credit for it because it was his separate property. 20 MS. SEVEROVICH: That's a whole nother ball of 21 wax. 22 MS. ANDERSON: Yeah. But they get everything, 23 Judge. We are not trying to keep anything except what is 24 exempt. 25 THE COURT: Okay.  24 1 MS. ANDERS: They get one hundred percent of all 2 of his assets except for what is exempt. 3 THE COURT: All right, I will look at it. I 4 mean, you're basically saying that we have left is unclear as 5 to the release of those funds that you think he is entitled to. 6 MS. ANDERSON: One account. That's what the 7 Order says. That one account, 404. It's not subject to 8 anything. And, you know, what does garnishment go with? 9 Garnishment with a judgment. So even if they get a judgment, 10 they will never be able to touch those funds. They need to get 11 it from someplace else. 12 THE COURT: And you're saying that you would 13 agree to something that puts funds in issue and, from your 14 perspective, into the Registry and releases everything else to 15 her client? 16 MS. SEVEROVICH: Correct. As Ms. Duff has 17 always said, anything that was Social Security, fine, we will 18 release that. But those two deposits Ms. Duff has issues with 19 as to their characterization, that's why we wanted that in the 20 Registry. 21 THE COURT: So that would be in the Registry 22 while that actually -- 23 MS. SEVEROVICH: Is sorted out. 24 THE COURT: -- is figured out. It could 25 actually go to either side ultimately.  25 1 MS. ANDERSON: But, Judge, I think we need to be 2 careful because their characterization, meaning was it separate 3 or community. That has nothing to do with regard to, it's in 4 the Social Security account which is protected. We are saying 5 it's community. 6 THE COURT: I see what you are saying. I 7 understand. You are saying it went out at or about the time 8 that it went in or shortly after, and therefore that 35 9 thousand isn't even an issue from your perspective, that 10 everything that's left in there is protected under the Social 11 Security. 12 MS. ANDERSON: Right. And if you look back at 13 the motions that were filed, the briefing that was done before 14 the January hearing, all of those are attached, all bank 15 statements. I mean, I'm not particularly thrilled about this 16 case. I have always been straight with the Court and I'm never 17 going to try and mislead you in any way. The paperwork is 18 there. We have already gone through this. And I believe that 19 even if the Court did take thirty out, thirty-eight, and put it 20 in the Registry of the Court, that you would be violating 21 federal law. And I know that's not anyone's intent. So I 22 understand that the dispute is over characterization. 23 Characterization has to do with is it separate or is it 24 community. No one says that the money in the bank account is 25 not Social Security money. No one says that.  26 1 THE COURT: Well, I could also, if I knew the 2 balance, I could also allow the account to remain frozen as to 3 thirty-four thousand eight ninety-eight fifty-eight with the 4 understanding that there would still be this issue of who is 5 entitled to it. 6 MS. ANDERSON: Here is the deal, Judge, I mean, 7 this man is being punished. We know that. He did a bad thing. 8 A horrible thing. All right? Where it -- you are talking 9 about more hearings over $38,000 when there is so much money 10 over here -- 11 THE COURT: Well then y'all -- that's what I'm 12 asking, what's the mechanism for y'all to actually sit down and 13 be forced to sort of work through this and 14 MS. ANDERSON: But there is nothing to negotiate 15 on the one account. If I do anything contrary, then I'm going 16 against federal law. Okay? So the only one that's left to 17 negotiate on is the 401K plan which is what we are negotiating 18 on. If they want to tag that at that thirty-eight something, 19 but they haven't come up with it and I can't do both sides of 20 this case. 21 THE COURT: Okay. All right, let me look at it 22 and I will let y'all know something by Monday. 23 MR. BLUMROSEN: Just one point briefly, Judge, 24 on the last point since, for her benefit, she wasn't here at 25 the January hearing, I agreed that that account was not subject  27 1 to garnishment. We did not agree with her language in the 2 Order for this very 3 THE COURT: Oh, I remember that nuance about all 4 this, that there was a concern that this would be used to 5 release, and that's where we are. 6 MS. ANDERSON: No, it is not. We had a January 7 27th hearing. It is the hearing afterward that there was an 8 issue over the Orders and at the hearing afterwards is the 9 hearing that you signed their Order on, and he is nodding his 10 head yes, so it is not the January 27th. 11 MR. BLUMROSEN: That's correct. But I'm talking 12 about the Order that she is showing you saying that it is 13 exclusively, when you signed that we had objected to it because 14 we thought that it was -- the language was unnecessary for that 15 Order and we agreed that that account, the Social Security 16 account that was designated, was not subject to garnishment. 17 We agreed with that. We thought her language in her Order gave 18 it more protection than it needed because I said I don't 19 represent the Estate and the Estate may or may not have claims 20 against it. But that Order was placed in front of you by her 21 and that was her Order and her language that we did not want 22 the Court to sign but the Court did sign it. 23 MS. ANDERSON: And we were all here. It wasn't 24 like it was just you and me talking in secret. 25 THE COURT: No, I understand.  28 1 2 MS. ANDERSON: All right, thank you, Judge. 3 THE COURT: Thank you. 4 MS. SEVEROVICH: Thank you, Judge. May we be 5 excused? 6 THE COURT: Yes . 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25  29 1 C E RT I F I CAT E 2 COUNTY OF HARRIS * STATE OF TEXAS * 3 I, Donald G. Pylant, Official Court Reporter in and for 4 Probate Court No. 1 of Harris County, State of Texas, do hereby certify that the above and foregoing contains a true and 5 correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to 6 be included in this volume of the Reporter's Record, in the above-styled and numbered cause, all of which occurred in open 7 court or in chambers and were reported by me. I further certify that this Reporter's Record 8 truly and correctly reflects the exhibits, if any, admitted, tendered in an offer of proof or offered into evidence by the 9 respective parties. I further certify that the total cost for the 10 preparation of this Reporter's Record is $203.00 and will be paid by Esther Anderson 11 Given under my hand and seal of office this the 5th day 12 of August , 2015. 13 14 Is/Donald G. Pylant 15 Donald G. Pylant, C.S.R. Official Court Reporter 16 in and for the County of Harris and the State of 17 T E X A S. 18 Certification No. 668 Exp. Date: 12-31-2016 Probate Court No. One 201 Caroline Street, 6th fl. 19 Houston, Texas 77002 (713) 368-6692 20 21 22 23 24 25  Tab 16 Inventory, Appraisement and List of Claims  'PROBATE COURT 1 No. 396,935 {)97895 IN THE ESTATE OF § IN THE PROBATE COURT § JANET FOLTYN MCAFEE, § N0.1 § DECEASED § HARRIS COUNTY, TEXAS INVENTORY, APPRAISEMENT AND LIST OF CLAIMS -.· Date of Death: May 8, 2010 The following is a full, true, and complete Inventory and Appraisement of all real property situated in the State of Texas and of all personal property wherever situated, together with a List of Claims due and owing to this Estate as of the date of death, which have come to the possession or knowledge ofthe undersigned. INVENTORY AND APPRAISEMENT COMMUNITY PROPERTY VALUE 1. CASH IN BANKS: Account #I Institution: The OMS Group, LLC Account type: Brokerage Account Account/CD No: xxx- xxx612 Total value of asset: $0 "' Less surviving spouse share: $<0.00> $0.00 Co-owners: None Decedent's intere.st: 50% *Note that (1) on April 23, 2010 Kenneth McAfee made a $1,700.00 distribution to an unknown account; and(2) on May 4, 2010, Kenneth McAfee transferred $9,760.92, entire remaining balance, to the Woodforest National Bank Account listed below. Account #2 Institution: The OMS Group, LLC Account type: Brokerage Account Account/CD No: xxx- xxx628 Total value of asset: $53,749.42 * Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas Deputy  .. Less surviving spouse share: $<26,874.71> $26,874.71 Co-owners: None Decedent's interest: 50% *Note, on (1) May 13, 2010, Kenneth McAfee sent an authorization to GMS to transfer balances of his accounts into Gerald Fry's JOLTA' at Bank of America, Account number 002663331329; and (2) on May 20, 2010 Kenneth McAfee wired the remaining balance, $51 ,462.06, into Gerald Fry's IOLT A at Bank of America BOA acct no. 002663331329; wire no. 026009593 Account #3 Institution: The GMS Group, LLC Account type: Salary Savings Plan 401K Account/CD No: xxx - xxx606 Total value of asset: $425,034.70 * Less surviving spouse share: $<212,517.35> $212,517.35 Co-owners: None Decedent's interest: 50% · * Note on May 25, 2010, Kenneth McAfee withdrew $200,000 and was sent to an unknown location. GMS withheld $40,000.00 for taxes. Account #4 Institution: The GMS Group, LLC Account type: Brokerage Account Account/CD No: xxx- xxx914 Total value of asset: $0 * Less surviving spouse share: $<0.00> $0.00 Co-owners: None Decedent's interest: 50% *Note on April23, 2010, Kenneth McAfee wire transferred balance, $25,187.66, to account at WoodForest National Bank, described below Account #5 Institution: The GMS Group, LLC Account type: Brokerage Account Account/CO No: xxx - xxx008 Total value of asset: $6,772.52 Less surviving spouse share: $<3,386.26> $3,386.26 Co-owners: None Decedent's interest: 50% Confide ntial information may have been redacted from the document in compliance with the Public I nformation Act. A Certified Copy Attest: 9/29/201 5 Stan Stanart, County Clerk Harris County, T exas AA~ --oSt~Ar~il:AAGQ-{:G.~Se~fi:Aeetelhf'\ia'\l-l-1111h- i _ _ _ __ Deputy  Account #6 Institution: Woodforest National Bank Account type: Multiparty checking with Right of Survivorship (Kenneth McAfee and Brenda McAfee, Kenneth's first wife) Account/CO No: xxxxxxx404 Total value of asset: $3 8,256.91 * Less surviving spouse share:· $<15,605.71> $22,651.20. Co-owners: Brenda McAfee and Kenneth McAfee Decedent's interest: 25% of balance, plus 50% interest in the amounts that were transferred from the OMS accounts shortly before Janet Foltyn McAfee's death, as set forth below in points (1) and (2). *Note, (1) on April 23, 2010, Kenneth McAfee transfers $25,162.66 (from OMS xxx- xxx914) into this account; (2) on May 4, 2010, Kenneth McAfee transfers $9,735.92 (from . GMS xxx-xxx612) into this account; (3) on July 1, 2010 Kenneth McAfee issues $10,000.00 check from this account to Michael McAfee; (4) on July 2, 2010, Kenneth McAfee issues $15,000.00 check from this account to Brenda McAfee; (5) n July 2, 2010, Kenneth McAfee issues $6,000.00 check from this account to IRS for 2008 taxes; (6) on November 29,2010, / Brenda McAfee issues $19,024.63 c}leck to McDavid Honda. · Decedent's share of Account #6 above is calculated as follows: Funds transferred from OMS that Decedent claims a 50% interest in: $17, 449.29 $25,162.66/2 = $12,581.33 $9,735.92/2 = $4,867.96 $9,735.92 + $4,867.96 = $17, 449.29 Remaining funds in Woodforest that Decedent claims sa 25% interest in: $5,201.91 $38,256.91 (-) $17, 449.29 = $20,807.62 $20,807.62/4 = $5,201.91 Total interest Decedent claims: $22,651.20 $17, 449.29 + $5,201.91:;; $22,651.20 Account #7 Institution: Wells Fargo National Bank Account type: Checking Account/CI) No: xxxxxx 184 Total value of asset: $589.76 Less surviving spouse share:· $<294.88> $294.88 Co-owners: Kenneth McAfee Decedent's interest: 50% Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A_A4___a $1enmg Go Senechal II! Deputy  2. MOTOR VEHICLES: Vehicle #1 Description: 2006 Mazda Miata (MX-5) YIN #: xxxxxxxxxxxxxx539 Total Value: $12,830.00 Less surviving spouse share: $<6,415 .00> $6,415.00 Co-owners: None Decedent's interest: 50% Vehicle #2 Description: 1959 Mercedes Model 190, 4 door YIN #: xxxxxxx51 0 Total Value: $5,050.00 $2,525.00 Co-owners: None Decedent's interest: 50% Vehicle #3 Description: 2007 or 2008 Suzuki Motorcycle YIN#: xxxxxxxxxxxxxx547 Total Value: $4,490.00 Less surviving spouse share: $<2,245.'00> $2,245.00 Co-owners: None Decedent's interest: 50% 3. INSURANCE: Policy #1 Insurer: unknown at this time Policy No.: unknown Total Value: $unknown $0 Co-owners: None Decedent's interest: 50% ofpremium payments 4. HOUSEHOLD FURNISHINGS: Household furniture and furnishings $14,000.00 Total Value: $14,000 . Less surviving spouse share: $<7 ,000.00> $7,000 Co-owners: . Kenneth McAfee Decedent's interest: 50% Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas AAd.~ Sterling G Senechal Ill Deputy  TOTAL COMMUNlTY PROPERTY SEPARATE PROPERTY VALUE 1. REAL PROPERTY: Parcel #1 LEGAL DESCRlPTION: Lot 12 Block 16 of South Hampton Place, a subdivision in Harris County, Texas according to the map or plat thereof, recorded in Vol. 6, Page 52 of the Map Records of Harris County, Texas, commonly known as 2119 Tangley Street, Houston, Texas Harris County Total Value: $537,701.00 • $423,454.10 Less remaining Chase Bank mortgage balance: ($114,246.90) Co-owners: None Decedent's interest: 100% *Note that Kenneth McAfee gifted his interest in the property to Janet Foltyn McAfee via gift deed on July 11, 2008, making it her separate property. Parcel #2 LEGAL DESCRIPTION: Ten (1 0) acre tract of! and situated in Matagorda County, Texas in the G .J Williams League, Abstract No. 103, being a portion of Lot No. 55 of the Elmaton Fanns Subdivision, and being out of the Southwest comer thereof, the map of said subdivision being recorded in the County Clerk's Office in Matagorda County, Texas, and said Lot. No. 55 being conveyed by B.W. Trul et ux to E.E. Adamcik by deed dated February 9, 1932, recorded in Vol. 94, Page 211 of the Matagorda County Deed Records Total Value: $13,750.00 $13,750.00 Co-owners: None Decedent's interest: 100% Parcel #3 LEGAL DESCRIPTION: Mineral Interest under the 10 acres in Matagorda county listed above in the Saba-Peterson GUW3. Total Value: $5,784.28 $5,784.28 Co-owners: None Decedent's interest: 100% 2. HOUSEHOLD FURNISHINGS: Artwork $17,900.00 Electronics $1,850.00 Jewelry $5,000.00 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A;_ AL-a Sterling G S8ri8Challlt Deputy  Firearms - .25 cal pistol $300.00 Mise items $3,500.00 Total Value: $28,550.00 $28,550.00 Co-owners: None Decedent's interest: 100% 3. MOTOR VEHICLES: Vehicle #1 Description: 2006 Hummer H3 (4x4) YIN #: xxxxxxxxxxxxxx 109 Total.Yalue: $18,100.00 $18,100.00 Co-owners: None Decedent's interest: 100% Vehicle #2 Description: 2007 Honda Shadow Motorcycle YIN #: xxxxxxxxxxxxxx977 ~' Total Value: $3,495.00 $3,495.00 ~:~ Co-owners: None ~~ Decedent's interest: 100% ·~ .·I 4.. CASH IN BANKS: 0 ~ Account #1 l Institution: The GMS Group, LLC N Account type: Brokerage Account ~ Account/CD No: xxx- xxx479 Q\ Total Value: $ 3,440.02 $3,440.02 Co-owners: None Decedent's interest: 100% Account #2 Instit~tion:The OMS Group, LLC Account type: Brokerage Account Account/CO No: xxx - xxxO 12 Total Value: $36,420.66 $36,420.66 Co-owners: None Decedent's interest: I 00% Account #3 Institution: The OMS Group, LLC Account type: Brokerage Account Account/CD No: xxx - xxxx28 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, T exas AA4____.o Sterling GO Senedlallll Deputy  Total Value: $0 $0 Co-owners: None Decedent's interest: 100% 5. SECURITIES: . Security #1 Description: Devon Energy Corp., ENV # xxxxx Ill, 1984.75 shares Total Value: On May 8, 2010 valued at $64.58/share $128,175. 16 Co-owners: None Decedent's interest: 100% TOTAL SEPARATE PROPERTY $661,169.22 LIST OF CLAIMS OWED TO ESTATE No claims are due and owing to the Estate of Janet Foltyn McAfee, Deceased. TOTAL VALUE OF ESTATE The total value of the Estate of Janet Foltyn McAfee, Deceased is $945,078.62. The Independent Administratrix asks the Court that foregoing Inventory, Appraisement and List of Claims be approved and entered of record. 'S': !!• ~l '•r ' • i' . " -,..,., 1'.'1 (/) '· .~~~ ~.. -u .~ I ('"·....."'·, N ..,::_: ~.... .-- r.~· ·: ~:· I :::: ~.: '• £'11 ·.•: ~~·· ' . :x:>o 0 ~· ::£: ,, -· 1·~ ~·:~: ~\ .. -:-:' 31; , 'i.:...I .- <..;) Confide ntial informa tion may have been r ed acted fr om the document in complia nce with the P ublic Infor mation Act. A Certified Copy Attest: 9/29/201 5 Stan Stanart, County Clerk Harris County, Texas Deputy  Rosemary Foltyn Independent Administratrix of the Estate of Janet Foltyn McAfee, Deceased 21 0 Main Street Richmond, TX 77469 Telephone: (281)341-1718 Facsimile: (281) 341-5517 STATE OF TEXAS § COUNTY OF HARRIS § I, Rosemary Foltyn, having been duly sworn, hereby state on oath that the said Inventory and List of Claims are a true and complete statement of property and claims of the estate that have come to my knowledge. Rosemary Foltyn Independent Administratrix of the Estate of Janet Foltyn McAfee, Deceased SWORN TO AND SUBSCRIBED BEFORE ME on this th~ay of ./Jur;d. 2011 by Rosemary Foltyn, to certify which witness my hand and seal of office. ·~~~• (.Y. ALICE MBROOI(S NOTARY PUBLIC v;;~.......,.l State of Texaa ··...~:.....· Comm. Exp, 07·11-a:t1lS Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas A_Ad Str:~llng _Q G. Senechal 111 Deputy  No. 396935 IN THE ESTATE OF § IN THE PROBATE COURT § ·JANET FOLTYN MCAFEE, § N0.1 _ _ § DECEASED § HARRIS COUNTY, TEXAS ORDER APPROVING INVENTORY, APPRAISEMENT & LIST OF CLAIMS The foregoing Inventory, Appraisement and List of Claims of the above estate having been filed and presented; there having been no objections made thereto; and the Court having considered and examined the same, is satisfied that it should be approved. IT IS THEREFORE ORDERED that the foregoing Inventory, Appraisement and List of Claims is in all respects approved and ORDERED entered of record. SIGNED on the _ _ day of _ _ _ _, 2011. JUDGE PRESIDING APPROVED AS TO FORM: Carla K. Freeman Attorney for Rosemary Foltyn, Independent Administratrix of the Estate of Janet Foltyn McAfee, Deceased 21 0 Main Street Richmond, TX 77469 Telephone: (281) 341-1718 Facsimile: (281) 341-5517 Confidential information may have been redacted from the document in complia nce with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Ha rris County, T exas Deputy  Tab 17 Order on First Amended Motion for Reconsideration of March 16, 20 15 Order Partially Releasing Temporary Injunction, First Amended Motion for Entry of Order Releasing Social Security Proceeds from Injunction and Motion for Sanctions  No. 396,935 ..-1-l;o I IN THE ESTATE OF § IN THE PROBATE COURT § JANET FOLTYN MCAFEE, § N0.1 ,.... § 0 DECEASED § HARRIS COUNTY, TEXAS lO ORDER ON FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 16, 2015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION, FIRST Ul AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY 0 PROCEEDS FROM INJUNCTION AND MOTION FOR SANCTIONS t~ 0 CAME ON THIS DAY, Charles Storer, Agent under a Power of Attorney from Kenneth C•l U1 () McAfee's, First Amended Motion for Reconsideration of March 16, 2015 Order, First Amended Motion for Entry of Order Releasing Social Security Proceeds from Injunction, and Motion for Sanctions, and after considering the pleadings on file, the Responses thereto, the arguments of counsel, and the evidence and testimony submitted to the Court, the Court finds that Charles Storer did not prove the characterization of the property at issue by clear and convincing evidence, and thus, the relief requested in Storer's Motion should be DENIED. IT IS THEREFORE ORDERED that Charles Storer's Motion for Sanctions is denied; and it is further __ ORDERED that the previous ruling is upheld until Charles Storer provides clear and convincing evidence of the separate nature of the commingled funds held at Woodforest National Bank; or ';J'i:ft/ 1 ORDERED that the Woodfore!!_t~~tional Bank account funds are ~o be released to lM:a! -5Cf'e:,i!- ~OY\CJ ~J:. cJe..w:.,+ Charles Store~! ~:ovided that .$34,898.58 of the account funds llfll ilape!it~ into the ;.e~istry of fL {XJ-'f-UO\Q... -b ~ ~ ~~ 1-\D..rr;s,. Qo\M'"l-h.j L.:..lQ.f'L!Ol the Court~until the nature of two deposits at issue has been determined. ~ I.,I..A.e. ~ · ~+ ~ e.$\c..:k dJ1 J~ FD l t'f~\ V~Ac.ftrJ-a, C-e-~· Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 10/1/2015 Stan Stanart, County Clerk Harris County, Texas --~ -=---.. .!. =.~ 41'- !~- . -:. V{- _ _.Deputy Summer Lea Willette  ... SIGNED on /J?a....y I J> (\J 0 0.. .- 0 to L!l ... 0 (\4 (.") (\) ~i 0 Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 10/1/2015 Stan Stanart, County Clerk Harris County, Texas ------;~ ~~~+""'<=tJJI'-LIIWJ~ i/ltJJi ~_Deputy Summer Lea Willette  APPROVED AS TO FORM: (\j 0 Cl. •.. ~:re~ Mary izab t uf 0 Texas B r No. 06166880 tO 21 0 Main Street Richmond, Texas 77469 Ul Tel. (281) 341-1718 Fax. (281) 239-7928 Attorneyfor Rosemary Foltyn, Administratrix Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 10/1/2015 Stan Stanart, County Clerk Harris County, Texas ----'~ "'------'~IJ~ ~ \tl'i _ illl&t .:..........!!._ Deputy Summer Lea Willette  Tab 18 Application for Temporary Restraining Order and Temporary Injunction - - · - - - - - · - - - - - - - - - - - - - - - - - - - - - - - - - - · -·- .. ... PROBATE COURT 1 No. 396935 ......... ~ ....... - ·-....· ~ ~ . IN THE EST ATE OF § IN THE PROBATE COURT § JANET FOLTYN MCAFE.E, § N0.1 § DECEASED § HARRIS COUNTY, TEXAS ...tftrtUIS7~TMTOWS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION t\ 0 () , f\. - . . i·()n()c) 'od '< Y \J~ tS TO THE HONORABLE JUDGE OF SAID COURT: . · '\ ~ v J ' . . ft~r.~ tc.ot"' . . . NOW COMES Rosemary Foltyn, Administrator for the Estate of Janet Foltyn McA'eb~ \\QJ ("Applicant"), and files this Application for Temporary Restraining Order and Temporary Q~tkn .... against Kenneth McAfee, ("Respondent") herein, and in support thereof, show the court the following: I PARTIES AND SERVICE I. . Respondent, 'kenneth McAfee, an Individual who is a resident of Tex~, may be sery~d with process at his hom~ at the followi~:7ress : 2119 Tangley Street, Houston, Texas 77005; or if he remains incarcerated, through the Harris County Sheriff's Department at: 1200 Baker Street, Houston, Texas 77002, SPN 00883964. Service of said Defendant as described above can be effected by personal delivery at either location, or wherever he may ·be found. FACTS 2. Decedent, Janet Foltyn McAfee, died on May 8, 2010, at Houston, Harris County, Texas, at the age of 50 years. Decedent's domicile at the time of her death was Houston, Harris County, Texas. Respondent is alleged to have killed Decedent. An Application to Probate Will was filed by Rosemary Foltyn on May 24, 2010. In addition, a wrongful death suit was filed by the heirs of the Estate and the relatives of Janet Foltyn McAfee, in Harris County District Court: U:\Ciients\FOLTYN, ROSEMARY\Applicationfor Temporary Restraining Order.r(/ Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas --~ ~~~IJ ~ftJ~'N(=fM~--'Deputy Summer Lea Willette ,. 3. Should Respondent be released from incarceration, assets of the estate, rightfully belonging to the Community, and from which Respondent is prohibited by law and public policy from inheriting, may be depleted by Respondent. 4. Unless Kenneth McAfee is immediately enjoined and restrained from use of the funds belonging to the Estate of Janet Foltyn McAfee, Kenneth Mc.Afee will have the ability to depl~te the assets of the estate. ELEMENTS FOR INJUNCTIVE RELIEF 5. In light of the above described facts, Rosemary Foltyn, As Applicant for Independent Administratrix, seeks to Probate the will of Janet Foltyn McAfee. The nature of the lawsuit is Probate, with an additional wrongful death suit pending. 6. Rosemary Foltyn, As Applicant for Independent Administratrix, is likely to succeed on the merits of this lawsuit because there is a necessity for administration of the estate, specifically so that property can be transferred to the rightful heirs. 7. Unless this Honorable Court immediately restrains Kenneth McAfee, the Estate of Janet Foltyn McAfee as well as Rosemary Foltyn and the remaining heirs of the Estate of Janet ..Foltyn McAfee will suffer immediate and irreparable injury, for which there is no adequate remedy at law to give Rosemary Foltyn, As Applicant For Independent Administratrix, and the heirs of the Estate ofJanet Foltyn McAfee complete, final and equal relief. More specifically, Rosemary Foltyn, As Applicant for Independent Administratrix, will show the court the following: A. The harm to Rosemary Foltyn, As Applicant For Independent Administratrix, and the heirs of the Estate. of Janet Foltyn McAfee is imminent because Kenneth McAfee has the ability, as husband of the decedent, to deplete the assets of the Estate of Janet Foltyn McAfee, and Kenneth McAfee would benefit from his alleged wrongful conduct. U:\Clients\FOLTYN, ROSEMARY\Applicationfor Temporary Restraining Order. rtf Confidential information may have been r edacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Har ris County, Texas  B. This imminent harm will cause Rosemary Foltyn, As Applicant For Independent Administratrix, and the heirs of the Estate of Janet Foltyn McAfee irreparable injury in that funds will not be available to the Estate for proper distribution. C. There is no adequate remedy at law which will give Rosemary Foltyn, As Applcan For Independent Administratrix, and the heirs of the Estate of Janet Foltyn McAfee complete, final and equal reliefbecause Kenneth McAfee has the ability, as husband of the decedent, to deplete the assets of the Estate of Janet Foltyn McAfee, and Kenneth McAfee would benefit from his alleged wrongful conduct. BOND 8. Rosemary Foltyn, As Applican For Independent Administratrix, is willing to post a nominal temporary restraining order bond and request the court to set such bond. REMEDY 9. Rosemary Foltyn, As Applicant For Independent Administratrix, has met her burden by establishing each element which must be present before injunctive rel!ef can be granted by this court, therefore Rosemary Foltyn, As Applicant For Independent Administratrix, is entitled to the requested temporary restraining order. 10. Rosemary Foltyn, As Applican For Independent Administratrix, requests the court to restrain Kenneth McAfee from use of any funds or property which rightfuJly belongs to the Estate of Janet Foltyn McAfee. Specifically, Kenneth McAfee is restrained from the use of the following accounts and property: a. Any accounts through OMS Group which are not the separate property of Kenneth McAfee; b. Any Compass Bank Accounts; U:\C//ents\FOL7YN. ROSEMARY\Applicationfor Temporary Rellra/nlng Order. rtf Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas _-- -~ =:. .-------.:....--IL-!- ~ft;_'f/(_ M_ _Deputy Summer Lea Willette . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- ____ .. , _, "- . c. Any Laredo Accounts; d. Any Wells Fargo Accounts; e. Any Citizens' Bank Accounts; f. Pershing c/o Harland Ics Account; and g. Any community property or separate property of Janet Foltyn McAfee. 11. It is essential that the court immediately and temporarily restrain Kenneth McAfee, from the use of the listed accoll.nts and property. It is essential that the court act immediately, pnor to giving notice to Kenneth McAfee and a hearing on the matter because the ability to deplete the assets of the estate e:xists. 12. In the alternative, should the court not wish to grant a Temporary Restraining Order, Rosemary Foltyn as Applican For Independent Administratrix of the Estate of Janet Foltyn ~cAfee respectfully requests the Court to order a Constructive Trust over the aforementioned Assets_ 13. In order to preserve the status quo during. the pendency of this action, Rosemary Foltyn requests that Kenneth McAfee be temporarily enjoined from use of the accounts and property as described herein. PRAYER WHEREFORE, PREMISES CONSIDERED, Rosemary Foltyn, As Applican For Independent Administratrix, Applicant herein, respectfully prays that: A. Kenneth McAfee, Respondent, be cited to appear and answer herein; B. A temporary restraining order will issue without notice to Kenneth McAfee, restraining Kenneth McAfee, and his officers, agents, servants, employees, agents, servants, successors and assigns, and attorneys from use of the accounts and property described herein; C. The Court sets a reasonable bond for the temporary restraining order; U:\Ciient$IFOLTYN, ROSEMARY\Applicationfor Temporary Restraining Order.rtf Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas  D. The Court order a Constructive Trust over the aforementioned assets; E. ,f\fter notice and hearing, a temporary injunction will issue enjoining and restraining Kenneth McAfee, his officers, agents, servants, employees, successors and assigns, and attorneys from direct or indirect use of the accounts and property described herein; F. For such other and further relief, in law or in equity, to which Applicant may be justly entitled. Respectfully submitted, Mitchel & Duff, LLC By:~~~~~~~~~---------­ Mary El' abeth Texas ar N '. 06166880 Amy L. Mitchell Texas Bar No. 12560500 Matthew F. Scholes . Texas Bar No. 24056630 210 Main Street :..:~) -C'1 N ~ 0- i "' ,.. .d ~.I'-- e(;t- 'j~ ~-- Richmond, TX 77469 Tel. (281 )341-1718 Fax. (281)341-5517 Attorney for Applicant Rosemary Foltyn _ ': uJ .• .,~ ;,-- t~~ C;t:) .-1.. I U- ~ c.>~· ~ -~ c::;J ~ U:\C/ients\FOLTYN, ROSEMARY\Appllcationfor Temporary Res/raining Order.rtf Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ----.-.-: ~ ~-~--==-'VT'iM r.'T =--_Deputy Summer Lea Willette  VERIFICATION STATE OF TEXAS § § COUNTY OF FORT BEND § BEFORE ME, the undersigned authority, personally appeared Rosemary Foltyn, as Applican For Independent Administr~trix of the Estate of Janet Foltyn McAfee who, on oath, stated that the statements m~de in the foregoing Application for Temporary Restraining Order and Temporary Injunction are true and correct. ~ · ~ R~~ Applican For Independent Administratrix of the Estate of Janet Foltyn McAfee SUBSCRIBED AND SWORN TO BEFORE ME on this the~ day of J v (\..t.. 2010, to certJfy which witness my hand and seal of office. .:.) < ~;. .. . ,. .. -: • ••. • • ~· ~ · ,-c .. . - '' U:lCiients\FOLTYN, ROSEMtiRYIAppllcationfor Temporary Restraining Order. rtf Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas -----Y~ ~.~~~ ftJ"'= ·~-,Deputy Summer Lea Willette  No. 396935 IN THE ESTATE OF § IN THE PROBATE COURT § JANET FOLTYN MCAFEE, § N0.1 § DECEASED § HARRIS COUNTY, TEXAS AFFIDAVIT IN SUPPORT OF ROSEMARY FOLTYN'S APPLICATION FOR TEMPORARY RESTRAINING ORDER BEFORE ME, the undersigned authority, personally appeared Rosemary Foltyn, as Applican For Independent Administratrix of the Estate of Janet Foltyn McAfee, who being duly sworn, deposed as follows: "My name is Rosemary Foltyn. I am at least 18 years of age and of sound mind. I am personally acquainted with the facts alleged herein. "kenneth McAfee was married to Janet Foltyn McAfee at the time of her death on May 8, 20 10. Kenneth McAfee was arrested by the Houston Police Department, and charged with the murder of Janet Foltyn McAfee. Kenneth McAfee is currently incarcerated for that charge, pending a trial. Kenneth McAfee may soon make bail and be released from custody. Ifhe is not restrained from using any of the accounts and property listed in the Application for Temporary Restraining Order and Temporary Injunction, the assets of my daughter's estate will be depleted. I have filed an Application to Probate a Holographic Will and For Issuance ofLetters of Administration P.ursuantto Section 145(d) of the Texas Probate Code at the request of the heirs of the Estate, myself and Jake Foltyn so that my daughter's property can be distributed· in accordance with her wishes." "Further affiant sayeth not." Rosemary Folt , as Applican or Independent Administratrix of the Estate of Janet Foltyn McAfee U:\CIIentJ\FOLTYN. ROSEMARY\Applicationjor Temporary Restraining Order.rtj Confidential infor mation may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Har ris County, Texas ----=- ~ ---=----.. ~t.J l!. . :. ·_W'i_ M_ _.Deputy Summer Lea Willette  SUBSCRIBED AND SWORN TO BEFORE ME on~~ iJJic> , by J?a~IFPN:f~. . . Af~ q.J:W2 e MARY EUZABEni DUFF DROZD Notary Public, Stat& ofT8X811 Commission Explree 03-13-2013 Notary:t2:state of Texas U:\Ciients\FOLITN, ROSEMARY\Applicationfor Temporary Restraining Order.rlf Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas S·Jmmer Lea Willette . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --- -·--·-·- - ·---... . No.396935 IN THE ESTATE OF § IN THE PROBATE COURT § JANET FOLTYN MCAFEE, § N0.1 § DECEASED § HARRIS COUNTY, TEXAS TEMPORARY RESTRAINING ORDER O n - - - - - - - - - - ' 20 I 0, the Application for a Temporary Restraining Order of Rosemary Foltyn, ~s Applican For Independent Administratrix of the Estate of Janet Foltyn McAfee was heard before this court. Based upon the pleadings, records, documents filed by counsel, and the arguments ofcounsel at the hearing, IT CLEARLY APPEARS: A. That unless Kenneth McAfee is immediately restrained from the use ofthe following accounts and property: a. Any accounts through GMS Group which are not the separate property of Kenneth McAfee; b. Any Compass Bank Accounts; c. Any Laredo Accounts; d. Any Wells Fargo Accounts; e. Any Citizens' Barik Accounts; and f. Pershing c/o Harland Ics Account; and g. Any community property or separate property of Janet Foltyn McAfee. that Kenneth McAfee will commit the foregoing before notice and a hearing on Rosemary Foltyn's Application for Temporary Injunction. B. Rosemary Foltyn, as Applican For Independent Administratrix of the Estate of U:\Ciients\FOLTYN, ROSEMARY\Applir:ationjor Temporary Restraining Order. rtf Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas ~~ftl'iillllll ------~s~um;~TI.,~r,ft e~. r Le~a~vvvimll~en~e ~___Deputy . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -·- -- t • 1 l Janet Foltyn McAfee and the other heirs of the Estate of Janet Folt)rn McAfee will suffer irreparable hann if Kenneth McAfee is not restrained f:Tom the use of the foregoing property . imm~diately because he will deplete the assets of the Estate of Janet Foltyn McAfee and there is no adequate remedy at law to grant Rosemary Foltyn, as Applican For Independent Administratrix of the Estate of Janet Foltyn McAfee and the other heirs of the Estate ofJanet ~altyn McAfee complete, final and equal relief. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Kenneth McAfee and all of his officers, agents, servants, employees, agents, servants, successors and assigns, and attorneys are ORDERED to immediately cease and desist from the use of the following accounts and property: a. Any accounts through GMS Group which are not the separate property of Kenneth McAfee; b. Any Compass Bank Accounts; c. Any Laredo Accounts; d. Any Wells Fargo Accounts; e. Any Citizens' Bank Accounts; and f. Any community property or separate property of Janet Foltyn McAfee, from the date of entry of this order until twenty (20) days thereafter, or until further order of this Court. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that a Constructive Trust is issued over the aforementioned assets. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Rosemary Foltyn's, as .Applican For Independent Administratrix of the Estate of Janet Foltyn McAfee Application for Temporary Injunction be heard on _ _ __ _ _ at :00 _M in the courtroom of Probate U:\CIIents\FOLTYN, ROSEMARY\Applicalionfor Temporary Restraining Order.rif Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas _ ____,_~ ~~~-t"-'¥ ru-'iiJldu -"-"-"'~_D. eputy ~>umm er Lea Willette .' Court# I of Harris County, Texas. Kenneth McAfee is commanded. to appear at that time and show cause, if any exist, why a temporary injunction should not be issued against him. The clerk ofthe.above-entitled court shall issue a temporary restraining order in confonnity with the law and the terms of this order upon the filing by Rosemary Foltyn of the bond hereinafter set. This order shall not be effective until Rosemary Foltyn, as Applican For Independent Administratrix of the Estate of Janet Foltyn McAfee deposits with the Clerk, a bond in the amount o~ $_ _ _ _ _ _ in conformity with the law. SIGNED and ENTERED on at _ _ _.M. PRESIDING JUDGE THIS 1NSTfHJMENT R~TUR~~~~ UNSlGNf.O UV .JUDGES OF ... ·' --· ~ ·"· · U:\CIIems\FOLTYN, ROSEMARY\Applical/onjor Temporary Restraining Order. rtf Confidential information may have been redacted from the document in compliance with the Public Information Act. A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas -----=-~ ------=-=-.i·,?t. .le-.; !.--=--V{(__ _ _D.eputy Summer Lea Willette