Ernest Ray Koonce v. Wells Fargo Bank, N.A., as Trustee Under the Pooling and Servicing Agreement Dated as of April 1, 2005, Asset Backed Pass-Through Certificates, Series 2005-WHQ2

ACCEPTED
01-15-00228-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/2/2015 5:15:17 PM
CHRISTOPHER PRINE
CLERK

FILED IN
No. 01-15-00440-CV 1st COURT OF APPEALS
HOUSTON, TEXAS
11/2/2015 5:15:17 PM
CHRISTOPHER A. PRINE
________________________________________________________________
Clerk
IN THE FIRST DISTRICT COURT OF APPEALS OF TEXAS
________________________________________________________________

IN RE ERNEST R. KOONCE, RELATOR

________________________________________________________________
Original Proceeding From the 127th Judicial District Court of
Harris County
Cause No. 2010-64752
__________________________________________________________________

APPELLANT/REALTOR’S RESPONSE TO APPELLEE, WELLS
FARGO’S, MOTION TO STRIKE SUPPLEMENTAL BRIEF

ERNEST R. KOONCE
Pro Se
15938 Fleetwood Oaks Drive
Houston, Texas 77079
Tel: (832) 434-3186
Fax: (832) 328-7171
rayk469@gmail.com
 No. 01-15-00440-CV

________________________________________________________________
IN THE THIRD FIRST COURT OF APPEALS OF TEXAS
________________________________________________________________

IN RE ERNEST R. KOONCE, RELATOR

________________________________________________________________
Original Proceeding from the 127th Judicial District Court of Harris
County, Texas
Cause No. 2010-64752
__________________________________________________________________

APPELLANT/REALTOR’S RESPONSE TO APPELLEE, WELLS
FARGO’S, MOTION TO STRIKE SUPPLEMENTAL BRIEF

ERNEST R. KOONCE
RELATOR, Pro Se
15938 Fleetwood Oaks Drive
Houston, Texas 77079

TO THE HONORABLE COURT OF APPEALS OF TEXAS:

Ernest R. Koonce, Appellant/Relator, and those similarly
situated, respectfully submits this Response to Wells Fargo’s Motion
to Strike Supplemental Petition for Writ of Mandamus, and would
show the Court as follows:

2
IDENTITY OF PARTIES AND THEIR COUNSEL

Relator, Ernest R. Koonce, hereby certifies that the following are the
list of parties and their respective counsel, if any, to the best of his
knowledge and understanding of the rules.

PARTIES COUNSEL

Relator
ERNEST R. KOONCE Pro Se

Respondent

HONORABLE RK SANDILL 127thth Civil District
Court of Harris County, TX
201 Caroline, 10th Floor
Houston, Texas 77002
Court Phone Number:
(713) 368-6161

Chris Daniels 201 Caroline
Harris County District Clerk Houston, Texas 77002

Real Party in Interest:

WELLS FARGO BANK, NA Bradley Chambers
Texas Bar No. 2400186
Valerie Henderson
Texas Bar No. 24078655
Baker, Donelson, Bearman,
Caldwell & Berkowitz, P.C.
1301 McKinney Street
Suite 3700
Houston, Texas 77010
(713) 650-9700 – Telephone
(713) 650-9701 – Facsimile
vhenderson@bakerdonelson.com

3
 TABLE OF CONTENTS

Cases
Abdygapparova v. State, 243 S.W.3d 191, 208 (Tex. App.-San Antonio 2007,
pet. ref'd) ................................................................................................................................ 16
Black v. Shor, 443 S.W.3d 170 (Tex.App. Corpus Christi, 2013)............................. 5
CNA Ins. Co. v. Scheffey, 828 S.W.2d 785, 792 (Tex.App.—Texarkana 1992,
writ denied) ........................................................................................................................... 14
Delaporte v. Preston Square, Inc., 680 S.W.2d 561, 563 (Tex.App.—Dallas 1984,
writ ref'd n.r.e.) .................................................................................................................... 14
Delaporte, 680 S.W.2d at 563 ............................................................................................. 14
Ex parte Finn, 615 S.W.2d 293, 296 (Tex.Civ.App.—Dallas 1981, no writ)......... 14
In re Columbia Med. Ctr. of Las Colinas Subsidiary, L.P., 290 S.W.3d 204, 213
(Tex.2009 ......................................................................................................................... 17, 21
In re Columbia Med. Ctr. of Las Colinas Subsidiary, L.P., 290 S.W.3d 204, 213
(Tex.2009) .............................................................................................................................. 17
In Re Lumbermens Mutual Insurance, 184 SW 3d 718, 727 (2006). ..................... 6
In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) .... 13
Standard Fruit & Vegetable Co., Inc. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998) 5
Tex.Gov't Code Ann. § 62.105 (Vernon 1988). .............................................................. 14
Texas Code of Judicial Conduct......................................................................................... 15
Ward v. Village of Monroeville, 409 U.S. 57, 62, 93 S.Ct. 80, 84, 34 L.Ed.2d 267
(1972) ...................................................................................................................................... 14
Statutes
Babcock v. Northwest Memorial Hosp., 767 S.W.2d 705, 708 (Tex.1989) ............ 13
Other Authorities
IDENTITY OF PARTIES AND THEIR COUNSEL .............................................................. 3
Rules
Canon 2(A), (B)......................................................................................................................... 15
Canon 2(B). ............................................................................................................................... 15
Canon 3(B)(8)............................................................................................................................ 16
canon four ................................................................................................................................. 15
Canon three .............................................................................................................................. 16
Canon two.................................................................................................................................. 15
Erskine v. Baker, 22 S.W.3d 537, 539 (Tex.App.-El Paso 2000, pet. denied) ..... 16
Rule 38.7...................................................................................................................................... 6
T.R.A.P. Rule 52 ...................................................................................................................... 19
T.R.A.P. Rule 52.3(k)(2) ......................................................................................................... 19
T.R.A.P., Rule 52.3(k)(2).......................................................................................................... 6
TEX.CODE JUD. CONDUCT, .............................................................................................. 15
TEX.R.APP. P. 38.7 ................................................................................................................... 5

4
 WELLS FARGO’S MOTION HAS NO MERIT

WF Issue A: Wells Fargo claims that the Court must strike the

Supplemental Petition for Writ of Mandamus because this Court

has failed to provide it’s permission pursuant to Black v. Shor, 443

S.W.3d 170 (Tex.App. Corpus Christi, 2013). Black, supra, does

not apply. In Black, supra, the issues involved in that case were

dealing specifically with a turnover order and an appeal, not a writ,

or potential misconduct in the trial court below, and further, the

supplemental briefs were submitted after oral argument. Black

involved an appeal, not a Writ of Mandamus. Nowhere in Rule 52

does it require a Motion for Leave to be sought in order to file a

Supplemental Petition for Writ of Mandamus (hereinafter referred to

as “Petition”) prior to this Court making a decision. Also, page 173

does not say what the Real Party In Interest states.

It is a well established rule that we may permit a party to

amend or supplement a brief "whenever justice requires."

TEX.R.APP. P. 38.7; see Standard Fruit & Vegetable Co., Inc. v.

Johnson, 985 S.W.2d 62, 65 (Tex. 1998) (appellate court has

discretion whether to allow filing of amended or supplemental brief

5
in interest of justice). See also, In Re Lumbermens Mutual

Insurance, 184 SW 3d 718, 727 (2006). There is no case law or rule

which Relator can locate, and Wells Fargo has cited none, that

speaks directly to an Extraordinary Writ. In fact, Rule 38.7 of the

Texas Rules of Appellate Procedures empowers the courts of

appeals to allow whenever justice requires. Wells Fargo alleges that

the issue presented in the supplemental Writ of Mandamus wasn’t

either raised in the trial court below, or in the original Writ of

Mandamus. However, that is not true at all. First, on 05/06/

2015, Realtor filed a motion with the Court in which he asked for a

ruling on his motion to allow the accelerated appeal in this case,

and asked for the Court to provide an answer as to why it changed

its ruling. Attached hereto as Appendix “1” is a true and correct

copy of that motion. On May 11, 2015, the trial Court denied both

the motion for accelerated appeal and the motion for the court to

explain why well after 10 months the court changed the case from

dismissed final to active. Attached hereto as Appendix “2” is a true

and correct certified copy of that order.

More importantly, T.R.A.P., Rule 52.3(k)(2) provides:

6
 “The appendix may contain any other item pertinent
to the issues or points present for review, including
copies of excerpts of relevant court opinions, statutes,
constitutional provisions, documents on which the suit
was based, pleadings, and similar materials.”
(emphasis added)

Moreover, realtor did address the issues set forth in both his

brief and Writ. The trial court did not respond to the motion until

after the brief and Writ were filed.

Furthermore, Real Party in Interest (hereinafter referred to as

“Wells Fargo” or “WF”), has failed to identify any rule requiring a

Motion for Leave to file a Supplemental Writ of Mandamus.

Nowhere in Rule 52 does it reference any such duty to file a motion

for leave.

If any motion for leave was required, it’s not set forth in Rule

52 dealing specifically with Writs of Mandamus, and good cause

exists to allow the supplemental Writ because it goes to the heart of

the case, including a question of gross misconduct by the judge or

the clerk. The case was dismissed in it’s entirety on November 17,

2011, as reflected in the court’s docket. The other case proceeded

in Judge Baker’s court (3rd lawsuit), and was fully litigated.

Approximately 10 months later, on or about August, 2012, Wells

7
Fargo attempted to consolidate this case (second lawsuit) with the

third lawsuit in the 295th Judicial District Court of Harris County,

Texas, to which Realtor objected based on lack of jurisdiction. No

order was ever signed granting that motion. Sometime thereafter,

the case before this court was somehow reinstated long after the

court lost its’ plenary powers, without any sort of motion, any sort

of hearing, and without any explanation.

WF Issue B. WF claims that the supplemental petition, A-D

was not addressed by the trial court. This is a completely false

claim. On May 6, 2015, Realtor filed a Notice to the Court that a

Ruling on his Motion for Accelerated Appeal was overdue as it was

set for submission on February 23, 2015, and Notice that Evidence

was missing in cause No. 2007-30212, 127th Judicial District Court

of Harris County Texas, which the court denied. See Appendix “a”

and “b” respectively.

Appendix “a” does address the specific issues set forth in

Issues A-D. See pages 2 and 3 of said Appendix “a”. No

explanation has been provided although numerous attempts have

been made to obtain an explanation. Christine Reule’s declaration

as well as the attached emails support the fact that attempts have

8
been made, even by third parties, to obtain an explanation for the

sudden appearance of the case on the court’s active docket after the

case was dismissed, and the missing court documents. It’s very

suspicious that documents that prove the fraud conveniently came

up missing as soon as the Notice of Accelerated Appeal was filed,

and after the dispute was pointed out in the federal proceedings.

WF claims that Realtor failed to show how his supplemental

Writ of Mandamus is in anyway related to the granting of WF

motion for new trial. If Koonce failed to make a showing, it wasn’t

intentional.

The fact is Judge Sandill dismissed the case in full on

November 17, 2011. The docket reflected this fact for more than 10

months (the exact date of when the case was placed back on the

docket is unknown). This case magically appeared as an active

case on the docket more than 9 months after the court lost its

plenary powers. No motion, no notice, no hearing, or explanation; it

was pulled from archives and/or closed files by the trial court and

placed on the active docket forcing Koonce to file a plea to the

jurisdiction and declare the case was dismissed. The trial court

granted Koonce’s motion on December 17, 2014. WF then filed a

9
Motion for New Trial making the same arguments it made in its

response to Koonce’s plea to the jurisdiction. No new argument was

made. No new evidence was presented. The court then granted

that motion, and this Writ ensued as well as an interlocutory

appeal.

In the February 13, 2015 Reporter’s Record, starting at page

7, line 10, and continuing to page 8, line 20, the following took

place:

MR. KOONCE: -- you will see that they sent a paper to me on
November 15th, 2006, and claimed that the current
creditor/owner was Wells Fargo Bank, N.A..

THE COURT: I understand that, Mr. Koonce. The issue here is,
when you pled your lawsuit, you included Wells Fargo Bank
Trustee as a defendant. Because if you look at Paragraph 2 -- I
don't know if you have your file in front of you, but Paragraph
2 under Fact, actually labeled No. 2, under Section B,
defendant citing this application includes Wells Fargo Bank,
N.A., as Trustee. And that's the issue here. The issue is, you
did not include them in the lawsuit but you nonsuited
everyone in the style, but they are not -- at the same time, you
know, they are not in your A introduction but they are in your
B facts. So, you know, in the state, we take -- it's a notice-
pleading state. So I take notice of the pleading, I have to
construe it liberally. And if you were to say, Judge, hey, we --
you know, we served them and they never answered, I would
have to grant a default against them because they are
included as a defendant. At the same time, because you
included them as a defendant and didn't nonsuit them, they

10
 live as a defendant. And now they live as a counter claimant,
so --

MR. KOONCE: Your Honor, at best this is nothing but
misnomer, which the courts have addressed over and over.

THE COURT: I'm happy -- I am happy to grant the new trial.
And you have a right -- you now have a right automatically
allege the alternative, so you can mandamus me on the issue.
I'm more than willing to be mandamused on this issue,
because I want to agree with you, but I don't think I can. So...

(emphasis added)

The trial court admitted that Koonce only included WF, Trust

in the facts, not in the introduction where Defendants are named

and requests for citations are made. Describing someone or a

witness in a pleading does not mean you are suing them. It’s

merely a statement of a fact. The trial court seems to be confused.

There was no reason to change his ruling when no new arguments

were made. By admitting that the Trust was described in the facts,

and not the introduction, the trial court knew it was a factual

statement, not intended party to the lawsuit.

On page 3, lines 15 through 20, of the February 13, 2015 Reporter’s

record, the trial court states:

THE COURT: Okay. The concern in this case is -- and I think I
cited Mr. Koonce after evaluation, is sued Wells Fargo Bank,
11
 N.A. You guys answered as Wells Fargo Bank as Trustee. He
nonsuited every single party that he sued. You guys answered
as a party that he didn't sue. (emphasis added).

Wells Fargo Bank as Trustee never filed an answer prior to the

nonsuit. No appearance was made by WF prior to November 17,

2011.

The fact is, the case was dismissed in full, file closed, and

without any warning, any hearing, any notice, the trial court

decided to pull a closed file and put the case on the active docket

long after the court lost jurisdiction. Koonce has found no case in

which a trial court has ever done this. It appears to be a case of

first impression.

Koonce’s position is that the entire case was dismissed on

November 17, 2011; 4 days later, WF filed an untimely cross-

complaint. It never appealed the dismissal, it fully litigated the

same issues and the same case before Judge Baker, obtained a

summary judgment based upon fraudulent statements (just like it

previously won an appeal in this very court based upon fraudulent

assignments); nor filed a motion for new trial until more than three

12
years later, three years too late. WF had 30 days from November

17, 2011 in which to file a Motion for New Trial. The trial court lost

jurisdiction on December 17, 2011. More than 10 months later,

the archived case was pulled and put back on the docket, breeding

suspicion, disrespect and threatening the integrity of the judicial

system.

No judge or clerk goes through closed files and randomly picks

one out to place back on the active docket, especially when the

court lost its plenary power more than nine months previous. This

act stinks to high heaven of corruption, likely ex parte

communication, special treatment and bias by a trial judge acting

without authority or any power to do so.

The parties have a right to a fair trial under both the United

States Constitution and the Texas Constitution. See In re

Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942

(1955) (holding that "[a] fair trial in a fair tribunal is a basic

requirement of due process"); Babcock v. Northwest Memorial Hosp.,

767 S.W.2d 705, 708 (Tex.1989) (holding that, "[i]n Texas, the right

to a fair and impartial trial is guaranteed by the Constitution"). In

13
Texas, part of the right to a fair and impartial trial is also secured

by statute. See Tex.Gov't Code Ann. § 62.105 (Vernon 1988).

One of the most fundamental components of a fair trial is "a

neutral and detached judge." Ward v. Village of Monroeville, 409

U.S. 57, 62, 93 S.Ct. 80, 84, 34 L.Ed.2d 267 (1972). A judge should

be fair and impartial and not act as an advocate for any party.

Delaporte v. Preston Square, Inc., 680 S.W.2d 561, 563 (Tex.App.—

Dallas 1984, writ ref'd n.r.e.). A judge should not be any party's

adversary. Ex parte Finn, 615 S.W.2d 293, 296 (Tex.Civ.App.—

Dallas 1981, no writ); see Delaporte, 680 S.W.2d at 563. The

impartiality of the judge is not only a matter of constitutional law,

but of public policy, as well:

Public policy demands that a judge who tries a case act
with absolute impartiality. It further demands that a
judge appear to be impartial so that no doubts or
suspicions exist as to the fairness or the integrity of the
court. Judicial decisions rendered under circumstances
that suggest bias, prejudice or favoritism undermine the
integrity of the courts, breed skepticism and mistrust,
and thwart the principles on which the judicial system is
based.

CNA Ins. Co. v. Scheffey, 828 S.W.2d 785, 792 (Tex.App.—

Texarkana 1992, writ denied) (citations omitted).

14
 The preamble to the Texas Code of Judicial Conduct first

reminds us of the role of the judiciary and provides that intrinsic to

all sections of the code are the precepts that judges must respect

and honor their judicial office as a public trust. TEX.CODE JUD.

CONDUCT, Preamble. The individual canons are intended to state

basic standards for judicial conduct and to provide guidance to

judges. Id. Several of those canons are relevant to this Court’s

analysis of Koonce's issues.

Canon two provides that judges "should act at all times in a

manner that promotes public confidence in the integrity and

impartiality of the judiciary" and "shall not allow any relationship to

influence judicial conduct or judgment." Id. Canon 2(A), (B). It

follows that the judge may not "convey or permit others to convey

the impression that they are in a special position to influence the

judge." Id. Canon 2(B). Similarly, canon four cautions a judge to

conduct all extra-judicial activities to avoid casting reasonable

doubt on the judge's capacity to act impartially as a judge. Id.

Canon 4(A).

15
 Canon three also addresses the judge's duty of impartiality

and prohibits, with limited exceptions, any direct or indirect ex

parte communications concerning the merits of a pending or

impending judicial proceeding. Id. Canon 3(B)(8). An ex parte

communication is one that involves fewer than all parties who are

legally entitled to be present during the discussion of any matter

with the judge. Erskine v. Baker, 22 S.W.3d 537, 539 (Tex.App.-El

Paso 2000, pet. denied). Ex parte communications are prohibited

because they are inconsistent with the right of every litigant to be

heard and with the principle of maintaining an impartial judiciary.

Abdygapparova v. State, 243 S.W.3d 191, 208 (Tex. App.-San

Antonio 2007, pet. ref'd). This proscription applies regardless of

whether the communication occurs through a social media website,

in the judge's chambers, or elsewhere. That is, while the internet

and social media websites create new venues for communications,

the court’s analysis should not change because an ex parte

communication occurs online or offline.

Our justice system's abhorrent reaction to ex parte

communications is purposeful. Such communications undermine

16
the principle of transparency which is promoted by the option of

conducting proceedings recorded in open court. The Texas Supreme

Court has ruled that transparency is something "we strive to

achieve in our legal system." In re Columbia Med. Ctr. of Las Colinas

Subsidiary, L.P., 290 S.W.3d 204, 213 (Tex.2009). Ex parte

communications do not promote that transparency.

WF, by objecting, makes the need to seek the truth even more

paramount and the trial courts conduct more suspicious. Makes

you wonder what they are trying to cover up and hide. WF had

every opportunity to present any argument to the trial court below,

but willfully failed to do so and claims it was never before the court

below contrary to Appendix “a” attached hereto. Instead, when

Koonce wants to seek the truth, WF goes out of it’s way to move to

strike a Writ, with absolutely no grounds to do so (there’s a huge

difference between a Writ and a Brief).

Judges and justices must take great care in preserving the

integrity of the courts and the judicial process. If they do not, who

will?

17
As noted by Roger D. Townsend, Improper Jury Argument and

Professionalism: Rethinking Standard Fire v. Reese, 67 TEX. B.J.

448, 454 (2004)

When [judges] abdicate [their] duty, professionalism
suffers even more than when a lawyer makes an
improper argument, for what is permitted is considered
proper by the jury. All judges who do not stop improper
arguments—and all trial lawyers who make improper
arguments—have no business lamenting the public's low
perception of lawyers. They need only look in the mirror.

The need to discover the truth of why the court placed the

case on the docket after dismissal was final is paramount. It is

highly likely this so-called random act was the result of an ex parte

communication by WF and its attorneys, or some other improper

means. It certainly has the appearance of impropriety, bias, and

judicial misconduct.

The very integrity of the judicial systems is at risk. Public

confidences are eroded when Judges are biased, special treatment

is given to certain individuals or parties, and/or have ex parte

communications.

Just because Koonce is pro se, doesn’t mean the courts don’t

have to follow the rules.

18
 Records attached to Supplemental Writ:

WF has failed to indentify which documents, if any, were not

presented to the trial court for consideration, and Koonce therefore

objects to this overly board statement and/or claim. Moreover, each

case cited by WF deals with an appeal, and is not specific for a Writ.

Nowhere in T.R.A.P. Rule 52 does it prohibit a person from

including other records; in fact, T.R.A.P. Rule 52.3(k)(2) allows such

records to be included. WF keeps attempting to use a brief

standard for a Writ standard without citation to any authority to

support its position.

Koonce cannot properly respond to this allegation because not

one document has been identified by WF that allegedly wasn’t

before the trial court. Rather, WF makes a blanket, in broad

language statement that “mandamus relief is nothing more than a

conglomeration of documents that were not part of the trial court’s

record in this matter, and should not be considered by the Court.”

Without specific objection to a specific document, Koonce is unable

to properly respond.

19
 WF Issue C: WF claims that the matter had been fully briefed

in the original Writ, without referencing any particular pages, or

headings. The fact is, the original Writ did not discuss the actual

manual which had just been obtained. It makes one reference to

the document at page 15 in the Statement of Facts. There’s also no

heading regarding this specific issue, and a miscarriage of justice

will occur if the Court doesn’t allow it.

The supplementation was necessary. If somewhere in the

actual rules it requires Koonce to file a motion for leave, which

Koonce has not located with regards to extraordinary Writs, Koonce

therefore asks this Court for leave to file the supplemental Writ of

Mandamus which is necessary for this appeal.

If we are to seek truth and justice, we must have all hidden

facts revealed. Judge Sandill and the clerk’s placing this case back

on the docket more than 9 months after the court lost jurisdiction

is suspect of corruption.

Does the Court of Appeals and its clerk randomly pick out

cases that have been dismissed and place them back on the active

docket, without a motion? Relator thinks not.

20
 We need to ensure that justice has not been tainted by a trial

judge or a clerk who may have acted in properly.

MOTION FOR SANCTIONS

Our justice system's abhorrent reaction to ex parte

communications is purposeful. Such communications undermine

the principle of transparency which is promoted by the option of

conducting proceedings recorded in open court. The Texas Supreme

Court has ruled that transparency is something "we strive to

achieve in our legal system." In re Columbia Med. Ctr. of Las Colinas

Subsidiary, L.P., 290 S.W.3d 204, 213 (Tex.2009). Ex parte

communications do not promote that transparency.

WF, and its attorneys, have repeatedly made

misrepresentations to this Court. In the prior appeal, this Court

relied upon 2 assignments which were both dated 7 days prior to

filing of their summary judgment motion of March 23, 2009, in

affirming the trial court’s decision. Before this Court now are two

new assignments presented in Federal Court which are dated

February 17, 2005. These two different assignments support that a

21
fraud was committed upon this Court by WF, and is further

supported by WF Foreclosure manual. Wells Fargo also claimed

that it accelerated its note and deed of Trust in the first appeal to

this court, Appellate No. 01-10-00194-CV. It later claimed in the

third lawsuit that it did not accelerate the note, contrary to an

earlier position and prohibited through Judicial Estoppel. Now, WF

asserts res judicata for a Summary Judgment order it obtained

through means of fraud on the statute of limitations. WF talks out

both sides of its mouth, and the courts have demonstrated extreme,

prejudicial bias by allowing it to happen.

Any pro se litigant presenting such false documents, making

clear contradictory statements would have their pleading struck

without a second thought by the courts. Why is WF getting special

treatment? WF and its attorneys should be sanctioned for

presenting false and fabricated assignments, which is consistent

with its policies and procedures as set forth in its Foreclosure

Manual, false claims, intentionally misciting case law with the

intent to deceive and misrepresent the law, as well as securing a

summary judgment claiming that it did not accelerate the note and

deed of trust despite the fact that it told this Court it had in fact

22
accelerated, and this Court relying upon that statement in affirming

the trial court’s granting of a motion for summary judgment.

Furthermore, Wells Fargo claims in a notice of acceleration that

Wells Fargo Bank, NA is the owner and holder of the note and deed

of trust, and in this lawsuit claims it is Wells Fargo Bank, NA as

trustee who’s the owner and holder of the note and deed of trust.

Wells Fargo has intentionally deceived Koonce as to who is the

proper party in order to avoid the dismissal of their lawsuit. WF

went into federal court in January 2015, claiming that it sued

Koonce in the wrong court and therefore the statute of limitation is

extended and their complaint is timely filed. This is exactly the type

of conduct that warrants WF’s pleadings to be struck because it

thwarts the very foundation of justice and our judicial system.

Wells Fargo should have its pleadings stuck, and this Court should

reverse the trial court’s order granting a new trial, with the

inclusion that the case was dismissed in its entirety on November

17, 2015.

23
 PRAYER

For the above reasons, Realtor requests that this Court deny

WF’s Motion to Strike as being meritless, grant Realtor’s request for

sanctions against WF, including striking of its pleadings, and for

such other and further relief as the court may deem just and

proper.

Dated: November 02, 2015

Word Count per computer: 3,891

Respectfully submitted,

/s/ Ernest Ray Koonce
Ernest Ray Koonce

24
 CERTIFICATION

By my signature above, I, Ernest Ray Koonce, the Realtor in
the above styled case, do hereby certified that I have reviewed the
Petition for Writ of Mandamus, the Supplementation and this
Response to Wells Fargo’s Motion to Strike, and conclude that every
factual statement in the petition is supported by competent
evidence including in the appendix’s or record.

CERTIFICATE OF SERVICE

Pursuant to Rule 21(a) of the Texas Rules of Civil Procedure, a true

and correct copy of the foregoing document has been sent to the

following via efiling on this 2nd day of November 2015;

Bradley Chambers
Texas Bar No. 2400186
Valerie Henderson
Texas Bar No. 24078655
Baker, Donelson, Bearman,
Caldwell & Berkowitz, P.C.
1301 McKinney Street
Suite 3700
Houston, Texas 77010
(713) 650-9700 – Telephone
(713) 650-9701 – Facsimile
vhenderson@bakerdonelson.com

/s/ Ernest Ray Koonce
Ernest Ray Koonce

25