ACCEPTED
04-14-00342-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
7/6/2015 11:52:35 AM
KEITH HOTTLE
CLERK
No. 04–14–00342–CV
RICHARD A. RODRIGUEZ IN THE COURT FILED
OF APPEALS
IN
4th COURT OF APPEALS
vs. 4TH COURT OF APPEALS DISTRICT
SAN ANTONIO, TEXAS
JPMORGAN CHASE BANK, N.A. SAN7/6/2015
ANTONIO,11:52:35 AM
TEXAS
KEITH E. HOTTLE
Clerk
Supplemental Motion To Review the Ruling on the Amount and Type of Security
To Suspend Enforcement of the Judgment Pending Appeal,
With a Request for Emergency Relief Regarding a Sale on July 7, 2015
Comes now appellant, Richard A. Rodriguez, and in this supplemental motion moves
the court to review the ruling of the trial court on the type and amount of security to suspend
enforcement of the judgment, and grant emergency relief, pursuant to Tex. R. App. P. 24.4
and due process under Article I, section 19 of the Texas Constitution.
Mr. Rodriguez may also be referred to as Rodriguez or appellant, and JPMorgan
Chase Bank may be referred to as JPMC or appellee.
I.
On August 29, 2014, a Motion To Review the Ruling on the Amount and Type of
Security To Suspend Enforcement of the Judgment Pending Appeal, With a Request for
Emergency Relief Regarding a Planned Sale of Property, was filed in this court.
A sale of the subject property at that time was scheduled for September 2, 2014, and
as part of the motion, emergency relief was requested in the form of a stay order concerning
the proposed sale. The sale on September 2 was canceled, and so the resolution of the
motion and relief was then not pertinent.
II.
Prior to this supplemental motion, documents filed in the court of appeals in this regard
are as follows.
August 29, 2014: Motion To Review the Ruling on the Amount and Type of Security
1
To Suspend Enforcement of the Judgment Pending Appeal, With a Request for Emergency
Relief Regarding a Planned Sale of Property. Filed by Appellant.
September 1, 2014: Supplemental Content for the Motion To Review the Ruling on the
Amount and Type of Security To Suspend Enforcement of the Judgment Pending Appeal.
Filed by Appellant.
September 2, 2014: Second Supplemental Content for the Motion To Review the
Ruling on the Amount and Type of Security To Suspend Enforcement of the Judgment
Pending Appeal. Filed by Appellant.
September 3, 2014: Appellee JPMorgan Chase Bank, N.A.’s Notice Regarding Ap-
pellant Richard A. Rodriguez’s Motion To Review Order On Suspension of Enforcement
of Judgment. Filed by Appellee.
September 18, 2014: Appellee JPMorgan Chase Bank, N.A.’s Response In Opposition
To Appellant Richard A. Rodriguez’s Motion To Review Order Setting Security. Filed by
Appellee.
June 9, 2015: Appellee JPMC’s Supplemental Response In Opposition To Appellant’s
Motion To Review Order Setting Security. Filed by Appellee.
III.
On June 1, 2015, JPMC requested by a letter that the district clerk issue an order of
sale for the real property involved in this case. A certified copy is attached as exhibit ’A’.
A public notice of a sale of the property for July 7, 2015 was published. A copy is
attached as exhibit ’B’.
On June 17, 2015, an opinion and judgment were issued affirming the judgment of the
trial court.
On July 2, 2015, Appellant filed a motion for rehearing and a motion for rehearing en
banc.
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IV.
An issue on appeal and in the motions for rehearing and rehearing en banc involves
the statute of limitations, a counterclaim against Appellant, and a request for a judicial
foreclosure of a lien.
A non-judical foreclosure of the lien and homestead property through a deed of trust
has been barred by limitations under section 16.035(b) of the Texas Civil Practice and
Remedies Code.
An issue in this appeal is whether a judicial foreclosure of the lien through a counter-
claim against Rodriguez is also barred by limitations. JPMC in its brief took the position
that the note involved was accelerated on June 7, 2000. A counterclaim was first filed
against Appellant on August 11, 2004. Based on those dates, a suit for foreclosure of
the lien is barred by limitations, under section 16.035(a) and (d) of the Civil Practice and
Remedies Code. JPMC has argued that limitations was tolled, and Rodriguez has replied
that the tolling argument is not applicable or valid in this situation. This specific part of
the appeal and Appellee’s argument about tolling were not directly analyzed and addressed
in the opinion of June 17, and they are part of the motions for rehearing and rehearing en
banc.
If it is determined—after any rehearing, or if a petition for review is filed in the Texas
Supreme Court and acted on—that a suit for foreclosure of the lien is barred by limitations,
then a sale of the homestead property based on a foreclosure of that type should not take
place.
V.
Appellant requests that the documents filed and noted in part II above be considered
along with this supplemental motion, that an order be issued staying the sheriff’s sale of
the property scheduled for July 7, 2015 beginning at 10:00 a.m., until the mandate upon the
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conclusion of the appeal is handed down or until further order of the court.
VI.
An inquiry was made to attorneys for JPMC and in a reply it was indicated that
Appellee is opposed to the motion.
Prayer
Therefore, Richard A. Rodriguez prays that this supplemental motion be filed; that it
be considered by the court along with documents previously filed by the parties; that an
order be issued staying the sheriff’s sale of the property scheduled for July 7, 2015 until
the mandate upon the conclusion of the appeal is handed down or until further order of
the court; in the alternative, that a temporary stay order be issued against the sale of the
property at 15426 Fallow Ridge Drive, San Antonio, Bexar County, Texas set for July 7,
2015 and that any sale be further stayed while this motion for review is pending; that the
court reporter of the 45th Judicial District Court prepare and file a record of the hearing of
August 18, 2014 on the motion for suspension of enforcement of judgment pending appeal;
that the district clerk be directed to prepare and file in the court of appeals an applicable
record from the clerk’s file on the matter of suspension of the judgment on appeal, if
appropriate; that the court direct that any supplemental pleadings or briefing be done as
appropriate; that oral argument or other hearing be scheduled regarding this motion; that
the court determine that Tex. R. App. P. 24.2(a)(3) applies and the lis pendens and other
security, such as an injunction on appellant, is sufficient to preserve the property and status
quo pending appeal; in the alternative, that the existing $12,000 amount for a deposit or
bond on appeal to suspend the sale of the property be reduced to an amount that will not
cause appellant substantial economic harm; that the court determine the amount of a bond,
security, or other deposit regarding the money judgment of $441,027.10 in accordance with
the judgment debtor’s current net worth and in an amount that will not cause appellant
4
substantial economic harm; in the alternative, that the issue of security on appeal regarding
the money judgment be remanded to the trial court for further proceedings pertaining to
net worth; that the court make other determinations and orders regarding suspension of
enforcement of the judgment on appeal under Tex. R. App. P. 24 that it deems proper; and
that he have such other relief, in law or equity, to which he may be justly entitled.
Respectfully submitted,
/s/ R. Robert Willmann, Jr.
R. Robert Willmann, Jr.
Attorney at Law
P.O. Box 460167
San Antonio, Texas 78246
Tel 844.244.9973
Temporary Fax 361.552.4305
willaw@prismnet.com
Bar No. 21655960
5
Exhibit A
FILED
6/1/2015 1C>-41:NA 8
Donna Kay McKinney WRIT OF EXEC. M I 0
Bexar County District Clerk
Accepted By: Nikki Garcia
A PROFESSIONAL CORPORATION
ATTORNEYS A N D COUNSELORS
2001 BRYAN STREET. SUITE 1800
DALLAS, TEXAS 75201
Gregory Sudbury
Attorney at Law
June 1,2015
Via Electronic Filing
Bexar County District Clerk
0 1 W. Nueva. Suite 21 7
San Antonio, Texas 78205
RE: JPMorgan Chase Bank, N.A. v.Richard Rodriguez; Case No. 2000-CI-12923; in the
285th Judicial District Court of Bexar County, Texas.
Dear Sir or Madam:
On March 24,2014, PlaintiffJPMorgan Chase Bank, N.A. (-'JPMC") recovered a judgment
against Defendant Richard Rodriguez for the amount of $441,027.10 together with post-judgment
interest as provided by law from the date of signing ofthe judgment until paid and for foreclosure
of JPMC's mortgage lien as it existed on the judgment date against the real property commonly
known as 15426 Fallow Ridge Drive, San Antonio, Texas, 78248, which is more particularly
described as:
Lot 50, Block 2, New City Block 14292, DEERWOOD, UNIT4, in the City of San Antonio,
Bexar County, Texas; according to the plat thereof recorded in Volume 9529, Page 224;
Deed and Plat Records of Bexar County; Texas.
In accordance with the Judgment, please accept this letter as a request to issue an Order
of Sale for the real property described above. With this request, JPMC is submitting payment in
the amount of $8.00 for your fee to issue the order.
Once the Order of Sale has been issued, please FedEx it to our office. We will be
sending you a FedEx envelope for this purpose.
Thank you for your attention to this matter. Should you have any questions, please contact
my paralegal, Heather Ferrill, at (214) 880-1830.
Sincerely,
/s/ Gregory Siidbury
Gregory Sudbury
4828-2059-6004, V . I
Case Number: 2000CI12923 Document Type: REQUEST FOR PROCESS Page 1 o f 2
CERTIFIED COPY CERTIFICATE STATE OF TEXAS
I, DONNA KAY MSKINNEY, BEXAR COUNTY DISTRICT
CLERK, DO HEREBY CERTIFY THAT THE FOREGOING
IS A TRUE AND CORRECT COPY OF THE ORIGINAL
RECORD NOW IN MY LAWFUL CUSTODY. WITNESS
MY OFFICIAL HAND AND SEAL OF OFFICE ON THIS:
July 02,2015
DONNA KAY MSKINNEY
BIXAR COUNTY, TEXAS
A
By:
(NOT VALID WITIIOUT TEE CLERKS'S ORIGINAL SIGA'ATURE.)
Case Number: 2000C112923 Document Type: REQUEST FOR PROCESS Page 2 o f 2
Exhibit B
Affidavit Regarding Exhibit
State of Texas
County of Calhoun
Before me, the undersigned authority, personally appeared R. Robert Willmann, Jr.,
who, after being duly sworn, stated as follows.
"I, R. Robert Willmann, Jr., am over 18 years of age, am an attorney licensed to
practice law in the State of Texas, and am otherwise competent to make this affidavit.
I am an attorney for appellant Richard A. Rodriguez regarding a supplemental motion
to review the ruling on the amount and type of security to suspend enforcement of the
judgment pending appeal and with a request for emergency relief.
Attached to this affidavit and made a part of this exhibit 'B' is a true and correct copy
of a "public notice sheriff sale" of the property the subject of this case which I received
from an attorney for the Appellee, JPMorgan Chase Bank, N.A.
I have personal knowledge of the contents of this affidavit and they are true and
c~rrect.'~
R. Robert Willmann, Jr.
Affiant
u
Subscribed and sworn to before me on this 6th day of July, 2015, to which witness my hand
and seal of office.
3 C0mm. Exp 09/19/2016
MYcommission expires: [
/ ' [(ff
PUBLIC NOTICE
SHERIFF SALE
Real Estate
State of Texas
County of Bexar
By virtue of an Execution and Order of Sale
issued out of the 285th Judicial District Court
of Bexar Coun Texas on the Istday of June
2015. by the dterk thereof in the case of:
JPMorgan Chase Bank, N.A.,.
Successor in interest to First National
Bank of Chica o, as Trustee
v3
Richard Rodriguez
CASE #2000-01-12923
the following property, situated in the county
of Bexar and the State of Texas and
described as follows; to writ;
15426 Fallow Ridge Drive, San Antonio
Texas, 78248 (the "Prope
more particularly described
) which
as:
Lot 50,
is
B l o c k 2 New C i t y B l o c k 14292
DEERWOOD UNIT 4, in the City of s a d
Antonio, Bexar County, Texas, according
to the plat thereof recorded in Volume
9529, Page 224, Deed and Plat Records of
Bexar County, Texas.
Levied on the 5th dav of June. 2015 and to
be sold to satisfy th'e judgment dated the
-Ma~c@24~201? and,recorclgd in the minutes
of said Court in Volume 4202, Pa. 0901 in
favor of the plaintiff: JPMorgan Chase Bank
N.A Successor i n interest to ~ i r s t
~ a t h a Bank
l of Chica o as Trustee
recovered a ainst Richard R o ~ r uezfor i the
sum of ~ 4 ~ l . 0 2 7 . 1 0 :attornev% fees of
$85,000 for 're resentation i n the trial
court: $20,000 for reoresentation throuah
the appeai to the court of a eals if this
c a s e i s a p p e a l e d ; $7,500 for
reoresentation at the ~ e t i t i o nfor review
state in the Supreme h u r t of Texas if a
petition for review is filed; $15,000 for
reoresentation throuah oral argument and
completion of proceeding i n the Supreme
Court of Texas if oral argument is
necessary. with interest thereon at the rate of
5% Der annum from March 24. 2014. until
za'o'ano al costs of s ~ iand t it-e ' ~ ~ e r ' c o s i s
of sale. toqether w'in a foreclos~reofa e n on
the abov~.describedproperty.
I the undersl ne agen or rus ee o ex
County, hereby give no\ic: that theBex;:
County Commiss~onersCourt and myself do
not warrant title nor guarantee a title policy on
this ro erty Bexar County is giving on1 as
mucl tige a i it has. Whatever charges tzere
are against the roperty continue on past the
sale. and m u 8 be taken care of by the
purchaser. Ail prospective purchasers are ut
on notice that the property may be subjecfto
mortgages, liens, or other encumbrance. It is
the responsibilit of ail Prospective Purchaser
to determine the existence of any legal
impediments to title on the above-described
property. The highest bidder must
immediate1 on the first on the first Tuesday of
JULY, 2015 tender the cash amount the high
bid to m self as agent of trustee for Bexar
County Following the ratification of the sale, I
will qive a (Trustee's Sheriff's) Deed to the
highbidder.'
A bidder at the sale must be re istered at the
time the sale begins with,the Sheriff, Deputy
Sheriff, or agent conducting the sale.
Given under my hand:
June 5,2015
SUSAN PAMERLEAU
Sheriff of Bexar County, Texas
June 15, 22, 29
Certificate of Service
I certify that this supplemental motion was served by–
an electronic filing service, e-mail, and fax, to Marcie Schout, Quilling, Selander,
Lownds, Wislett & Moser, 2001 Bryan Street, Suite 1800, Dallas, Texas 75201 (attorney
for JPMorgan Chase Bank),
on the 6th day of July, 2015.
/s/ R. Robert Willmann, Jr.
R. Robert Willmann, Jr.