ACCEPTED
01-15-00228-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/15/2015 3:17:31 AM
CHRISTOPHER PRINE
CLERK
FILED IN
No. 01-15-00440-CV 1st COURT OF APPEALS
HOUSTON, TEXAS
________________________________________________________________
12/15/2015 3:17:31 AM
IN THE FIRST DISTRICT COURT OF APPEALS CHRISTOPHER
OF TEXASClerk
A. PRINE
________________________________________________________________
IN RE ERNEST R. KOONCE, RELATOR
________________________________________________________________
Original Proceeding From the 127th Judicial District Court of
Harris County
Cause No. 2010-64752
__________________________________________________________________
REPLY PETITION FOR WRIT OF MANDAM
ERNEST R. KOONCE
Pro Se
15938 Fleetwood Oaks Drive
Houston, Texas 77079
Tel: (832) 434-3183
Fax: (832) 328-7171
rayk469@gmail.com
No. 01-15-000228 and 01-15-00440
________________________________________________________________
IN THE 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
__________________________________________________________________
REPLY PETITION FOR WRIT OF MANDAMUS
ERNEST R. KOONCE
RELATOR, Pro Se
15938 Fleetwood Oaks Drive
Houston, Texas 77079
Tel: (832) 434-3183
Fax: (832) 328-7171
rayk469@gmail.com
TO THE HONORABLE COURT OF APPEALS OF TEXAS:
Ernest R. Koonce, Relator, and those similarly situation,
respectfully submit this Reply Petition for Writ of Mandamus and
Brief, 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
TERMS AND ABREVIATIONS USED WITHIN THE REPLY BRIEF
APP. Appendix supplied by Koonce. It specifically refers to
Appendix and supporting affidavit, which is part of the
Supplemental Petition for Writ of Mandamus.
CR Clerk’s Record
DT Deed of Trust
Koonce Ernest Ray Koonce, plaintiff/cross-defendant, and
Appellant/Relator
MNT Motion for New Trial
MSJ Motion for Summary Judgment
PSA Pooling and Servicing Agreement
PET. Petition for Writ of Mandamus and Notice of Accelerated
Appeal
RFP Request for Production of Documents
RR Reporter’s record
SACC WF Second Amended Counterclaims
SCR Supplemental Clerk’s Record
SJ Summary Judgment
SP Supplemental Petition for Writ of Mandamus
WF Unless otherwise noted, Wells Fargo Bank, NA also known as
Wells Fargo Bank, NA as Trustee (they are the same entity)
WFR Wells Fargo’s records filed with this court.
4
TABLE OF CONTENTS
Cases
3Hartley v. Coker, 843 S.W.2d 743, 747 (Tex.App.—Corpus Christi 1992, no
writ). ........................................................................................................................................ 74
Adams v. Consol. Underwriters, 133 Tex. 26, 124 S.W.2d 840, 841 (1939)........ 42
Alexander, 226 S.W.2d at 1001 ......................................................................................... 66
Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex.1996) ......................... 44, 61
Austin v. Countrywide Homes Loans, 261 S.W.3d 68 (Tex.App.Houston [1st
Dist.] 2008)............................................................................................................................ 81
Bender, 475 U.S. at 544, 106 S.Ct. 1326 ....................................................................... 33
BHP Pet. Co. v. Millard, 800 S.W.2d 838, 840 (Tex.1990) ................................................. 49
BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d 838, 840-41 (Tex. 1990).............. 51
Board Of Regents Of State Colleges v. Roth, 408 U.S. at 576, 92 S.Ct. 2701.... 91
Brandon v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985) 33
Browning, 165 S.W.3d at 346 ............................................................................................. 68
Bruington Engr. V. Pedernal Energy LLC, 403 SW 3d 523, 527 (Tex.App. – San
Antonio 2013) ....................................................................................................................... 50
Charles Brown, L.L.P. v. Lanier Worldwide, Inc., 124 S.W.3d 883, 895 (Tex.App.-
Houston [14th Dist.] 2004, no pet.) .............................................................................. 41
Chen v. Breckenridge Estates Homeowners Ass'n, Inc., 227 S.W.3d 419, 421
(Tex.App.-Dallas 2007, no pet.) ...................................................................................... 40
Chen, 227 S.W.3d at 420 ..................................................................................................... 41
Cleveland v. Ward ................................................................................................................... 68
Cleveland v. Ward, 116 Tex. 1, 19, 285 S.W. 1063, 1070 (1926)........................... 68
Color Tile, Inc. v. Ramsey, 905 S.W.2d 620, 623 (Tex.App.-Houston [14th Dist.]
1995, no writ)....................................................................................................................... 50
Commint Technical Services, Inc. v. Quickel, 314 SW 3d 646 (Tex.App. –
Houston [14th District] 2010) ...................................................................................... 77
Cummins v. Paisan Constr. Co., 682 S.W.2d 235, 236 (Tex.1984) (per
curiam). ................................................................................................................................. 49
Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974) ........................................................ 68
Dillard v. Smith, 205 S.W.2d 366, 366-67 (Tex. 1947) ............................................... 35
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). 73
ED. Anderson co. v. Young, 128 Tex. 631, 101 S.W.2d 798 (1937) ...................... 73
Elizondo, 974 S.W.2d at 931 ............................................................................................... 33
Enserch, 794 S.W.2d at 4-5................................................................................................. 41
Fid. & Guar. Ins. Co. v. Drewery Constr. Co.,186 S.W.3d 571, 573, 574 (Tex.
2006) (per curiam) .............................................................................................................. 35
Flowers v. Steelcraft Corp., 406 S.W.2d 199, 199 (Tex. 1966); ................................ 72
Freedom Communications, Inc. v. Coronado, 372 S.W.3d 621, 623 (Texas 2012)
................................................................................................................................................... 30
French v. Gill, 252 S.W.3d 748, 754 (Tex. App.—Texarkana 2008, pet. denied) 65
Gannon v. Payne, 706 S.W.2d 304, 305 (Tex. 1986). ................................................. 72
5
Gary v. Kirland, 550 S.W.2d 410, 411 (Tex.Civ.App.—Corpus Christi 1977, writ
ref’d r.e.) ................................................................................................................................. 77
Gracia v. RC Cola-7-Up Bottling Co., 667 S.W.2d 517, 519 (Tex.1984). ................ 61
Graham, 473 U.S. at 165-66, 105 S.Ct. 3099............................................................... 34
Graham, 473 U.S. at 166, 105 S.Ct. 3099 ..................................................................... 34
Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex. 1982) (per curiam)....................... 49
Hazel-Atlas, 322 U. S., at 245 ............................................................................................ 66
Holy Cross Church of God in Christ, 44 S.W.3d at 568............................................... 65
Houston First American Sav. v. Musick, 650 S.W.2d 764, 769 (Tex. 1983)....... 64
Houston Independent School Dist. v. Morris, 355 SW 3d 668, 678, (Tex.App. –
Houston [1st Dist.] 2011) .................................................................................................. 50
In Hartley v. Coker, 843 SW 2d 743 (Tex.App. Corpus Christi 1992) ................... 74
In re C.S., 208 S.W.3d 77, 81 (Tex.App.-Fort Worth 2006, pet. denied)............... 30
In Re Carrsow-Franklin 324 BR 33, Bankr. Court, South Dist. New York,
January 29, 2015.............................................................................................................. 16
In Re Carrsow-Franklin, 324 BR 33, Bankr. Court, South Dist. New York,
January 29, 2015 ............................................................................................................... 15
In Re Carrsow-Franklin, 524 BR 33, 47 (Bankr. Court, SD New York, 2015 .... 28
In re Coastal Plains, 179 F.3d 197, 205 (5th Cir. 1999)) ........................................... 65
In Re Columbia Medical Center, 290 S.W.3d. 204, fn.3 (Tex.2009) ...................... 59
In Re Galveston Central Appraisal District, 252 S.W. 3d 904, 909 (Tex.App. –
Houston [14th Dist.] 2008)................................................................................................ 30
In re Greater Houston Orthopaedic Specialists, 295 S.W.3d 323, 324 (Tex.2009).
................................................................................................................................................... 50
In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 324-25
(Tex. 2009)............................................................................................................................. 51
In re Greater Houston Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325
(Tex.2009) .............................................................................................................................. 50
IN RE GREATER HOUSTON ORTHOPAEDIC, 295 SW 3d 323, (Tex 2009) ........ 38
In Re Greater Houston Orthopeadic, 295 SW3d 323, 324-325 (Texas 2009) .............................. 49
In re Saldivar, No. 11-10689, 2013 WL 2452699 (Bankr. S.D. Tex. June 5,
2013) ................................................................................................................................. 80, 83
In Re Shamblin, No. 01-10-00961-CV, First District Court of appeals, February
16, 2012 ................................................................................................................................. 47
In re Sims, 88 S.W.3d 297, 303 (Tex.App.-San Antonio 2002, orig. proceeding).
................................................................................................................................................... 69
Industrial Disposal Supply Co. v. Perryman Brothers Trash Service, Inc., 664
S.W.2d 756, 765 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.) ....................... 63
Jackson v. Stinnett, 881 S.W.2d 498, 500 (Tex.App.-El Paso 1994, no writ)...... 34
Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983) ........................................ 58
Jernigan v. Bank One, Tex., N.A., 803 S.W.2d 774, 776 (Tex.App.-Houston [14th
Dist.] 1991, no writ) ........................................................................................................... 87
Jernigan, 803 S.W.2d at 776............................................................................................... 87
Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114
(1985) ...................................................................................................................................... 33
King Ranch, 118 S.W.3d at 752 ......................................................................................... 66
6
Leavings v. Mills ...................................................................................................................... 85
Leavings v. Mills, 175 S.W.3d 301 (Tex.App.Houston [1st Dist.] 2004, no pet.) 81
Martin v. New Century Mortgage Co., 377 S.W.3d 79 (Tex.App.-Houston [1st
Dist.] 2012)............................................................................................................................ 81
MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 497 n. 21 (Tex.2010) ........... 30
Miller v. Homecomings Fin., LLC, 881 F.Supp. 2d 825, 831 (S.D. Tex. 2012 80, 86
Miller v. Homecomings Fin., LLC, 881 F.Supp. 2d 825, 831 (S.D. Tex. 2012)80, 86
Miller, .......................................................................................................................................... 81
Miller, supra @832 ................................................................................................................. 81
Millet v. JP Morgan Chase, N.A., 2012 WL 1029497, *4 (W.D.Tex. Mar. 26, 2012)
................................................................................................................................................... 81
Mutual Sav. & Loan Ass'n v. Earnest, 582 S.W.2d 534, 535 (Tex.Civ.App.—
Texarkana 1979, no writ). ................................................................................................ 68
National Ins. Co. v. Tidewater Co., 337 U. S. 582, 646 (Frankfurter, J.,
dissenting) ............................................................................................................................. 91
National Savings Insurance Co. v Gaskins, 572 S.W.2d 573 (Tex. App. – Ft.
Worth 1978 ........................................................................................................................... 62
Norwood v. Chase Home Finance LLC, 2011 WL 197874 (W.D.Tex. Jan. 19,
2011) ....................................................................................................................................... 81
Office of Pub. Util. Counsel v. Pub. Util. Comm'n of Tex., 878 S.W.2d 598, 600
(Tex.1994) (per curiam) ..................................................................................................... 30
Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex.2001) .......................................................... 69
Pierson, 959 S.W.2d at 347 ................................................................................................. 41
PNS Stores v. Rivera, 379 S.W. 3d 267 (Tex. 2012). ................................................... 68
Reed v. Reed, 158 Tex. 298, 311 S.W.2d 628, 630 (1958) ........................................ 74
Reinagel v. Deutsche Bank Nat’l Trust Co, 735 F.3d 220 (5th Cir. 2013)............. 82
Rocha, 52 S.W.3d at 403 ...................................................................................................... 34
S. County Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 468 (Tex. App.-Corpus Christi
2000, no pet.) (op. on reh'g). ........................................................................................... 72
S. County Mut. Ins. Co., 19 S.W.3d at 469. .................................................................... 72
See Houston First American Sav. v. Musick, 650 S.W.2d 764, 769 (Tex. 1983).
................................................................................................................................................... 64
Shadowbrook Apts. v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990) ................ 22
Sheldon v. Emergency Med. Consultants, I, P.A., 43 S.W.3d 701, 702 (Tex.App.-
Fort Worth 2001, no pet.)................................................................................................. 41
Shepard v. Boone, 99 S.W.3d 263 (Tex.App.-Eastland 2003) .................................. 81
Siller v. LPP Mortg., Ltd., No. 04–11– 00496–CV, 2013 WL 1484506, at *3 (Tex.
App.—San Antonio April 10, 2013, pet. denied) (mem. op.) ................................. 64
SMS Fin., 167 F.3d at 238.................................................................................................... 87
SMS Financial, 167 F.3d at 238; ........................................................................................ 87
Sutherland v. Spencer, 376 SW 3d 752, fn1, (Texas 2012)...................................... 37
Tex.Property Code, Section 51.002 .............................................................................................. 21
Texas Property Code, Section 51.002......................................................................... 21, 22
Todman, 361 F.2d at 746 ..................................................................................................... 33
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862-63 (Tex. 2010)...................... 51
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862-863 (Texas 2010 ................. 61
7
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex.2010).............................. 68
Trigg v. Moore, 335 S.W.3d at 245 n.1............................................................................. 47
Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex.App.-Austin 1994, no writ)30
U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 941 N.E.2d 40, 53 (2011) ........ 81
United States v. McCaskey, 9 F.3d 368, 378 (5th Cir. 1993)) .................................. 64
Univ. of Tex. Med. Branch at Galveston v. Blackmon, 195 S.W.3d 98, 100 (Tex.
2006) ....................................................................................................................................... 22
Universal Oil, supra, at 580 ................................................................................................. 66
V.D. Anderson Co. v. Young, 128 Tex. 631, 636, 101 S.W.2d 798, 800 (1937) .. 68
Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex.2010)............................ 58
Walker, 827 S.W.2d at 837 .................................................................................................. 31
Wells Fargo Bank, N.A. v. Farmer, 19 Misc. 3d 1141(A) (N.Y. Sup.Ct. 2008....... 82
Wells Fargo Bank, NA v. Erobobo, 2013 NY Slip Op 50675 (N.Y. Supreme 2013)
................................................................................................................................................... 82
WorldPeace v. Comm'n for Lawyer Discipline, 183 S.W.3d 451, 459 (Tex.App.-
Houston [14th Dist.] 2005, pet. denied) ...................................................................... 30
Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 246 (Tex.1988) .............................. 78
Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247 (Tex.1988) .............................. 77
Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988) .............................. 69
Wyatt v. Shaw Plumbing, 760 S.W.2d 245, 248 (Texas 1988)................................. 68
Wyatt, .......................................................................................................................................... 78
Wyatt, 760 S.W.2d at 246-47 ............................................................................................. 70
Wyatt, 760 S.W.2d at 248.................................................................................................... 74
Statutes
EPTL §7-2.4............................................................................................................................... 82
TEX. BUS. & COMM.CODE ANN. § 3.201(a); ................................................................ 86
TEX. Bus. & COMM.CODE ANN. § 3.201(b);................................................................. 87
Tex.Property Code, Section 51.002. ............................................................................................. 21
Texas Property Code Chapter 51 ................................................................................. 10, 21
U.C.C. cmt. 1, TEX. BUS. & COMM.CODE ANN. § 3.201 (Vernon 2004) ............ 86
WF has a broken chain of title and chain of endorsements, the Allonge
was not attached to the note as required by Texas law.................................. 86
Other Authorities
2. The Nonsuit was final and required no signed order by the judge, and
WF had 30 days from the dated filed to appeal. ................................................. 52
3. Court’s Exercise of it’s Plenary Powers ............................................................... 49
4. Defect in WF Motion for New Trial: ....................................................................... 55
A. STATEMENT OF UNDISPUTED FACTS ................................................................... 18
AUGUST 12, 2012 HEARING:........................................................................................... 49
B. Intentional and Selective Omission of Facts and Procedures by Wells
Fargo and its attorney .................................................................................................... 21
C. JUDICIAL NOTICE ARGUMENTS MADE BY WELLS FARGO ........................ 25
Court’s Exercise of it’s Plenary Powers ...................................................................... 49
DUE PROCESS CLAIMS: ..................................................................................................... 90
8
F. FIRST LAWSUIT WF SOUGHT AND OBJECT AN MSJ GIVING IT THE
RIGHT TO FORECLOSE.................................................................................................. 60
IDENTITY OF PARTIES AND THEIR COUNSEL .............................................................. 3
Koonce has standing to assert the assignments are void:................................. 80
Misnomer:.................................................................................................................................. 38
OBJECTION .............................................................................................................................. 10
Res Judicata cannot be enforced when it’s procured through means of
fraud. ...................................................................................................................................... 62
TERMS AND ABREVIATIONS USED WITHIN THE REPLY BRIEF ....................... 4
Tex. Civ. Prac. & Rem. Code § 16.064(a) does not apply........................................................ 88
Wells Fargo Judicially Admitted that only WF Bank was sued in the
second lawsuit, the one before this court: ............................................................ 45
WELLS FARGO’S OBJECTIONS....................................................................................... 13
WF ADMITTED KOONCES CASE IN CONTRAVERSY WAS DIMISSED IN ITS
ENTIRETY AT THE 8/12/12 HEARING: ................................................................. 47
WF Bank, NA and WF Bank, NA as Trustee are the same entity: .................. 32
WF Claims That Koonce Specifically Named Wf Trust As A Separate
Defendant Is Without Merit, And Barred By The Doctrine Of Res
Judicata And/Or Collateral Estoppel. ..................................................................... 42
WF Cross-complaint was untimely: .............................................................................. 46
WF HAS NO JUDICIABLE INTEREST, DOES NOT HAVE STANDING,
DOESN’T OWN THE NOTE............................................................................................. 87
WF Motion for New Trial was based upon new evidence. ................................... 56
WF Plea in Abatement: ....................................................................................................... 71
Rules
Rule of Civil Procedure 97(a) ............................................................................................... 78
See Tex.R. Civ. P. 97(a) ......................................................................................................... 76
T. R. App. P. 52.7(a)(1) ................................................................................................................ 15
Tex. R. Evid. 201(d) ................................................................................................................ 27
TEX.R. CIV. P. 162 .............................................................................................................. 49, 50
TEX.R. CIV. P. 320 ................................................................................................................. 55
TEX.R. EVID. 201(b) .............................................................................................................. 29
TEX.R. EVID. 201(d) .............................................................................................................. 30
Texas Rule of Evidence 201(d) ............................................................................................ 26
9
OBJECTION
Relator objection to WF’s summary of argument and
prejudicial statements solely designed to prejudice the Court
against Relator when it claims that Relator “continues to live in his
house for free”. That statement is irrelevant to the case at hand,
and said merely to prejudice the Court against Relator. Relator
moves to strike that statement and all other prejudicial statements
that have nothing to do with this Mandamus proceeding. If anyone
is trying to get a house for free, it’s WF.
Objection is further made to WF’s statement that it has had to
defend itself against various lawsuits by Relator simply because
Relator “does like the end result.” This statement is a complete
falsehood. WF’s failure to comply with proper notice requirements,
failure to follow state law non-juridical foreclosure procedures set
forth in Texas Property Code Chapter 51, is the reason for each of
the lawsuits. It was WF’s doing that prompted the need to seek
judicial address and injunction because they failed to give 30 days
notice to cure as required by the Deed of Trust (20 days per 51.002
of the Texas Property Code), gave notice of acceleration one (1) day
10
after it sent notice to cure, and they are not the owner and holder of
Koonce’s note and deed of trust. It’s WF’s conduct that lead to the
multiplicity of the state court proceeding. It is WF that has filed
multiple lawsuits, including, but not limited to twice attempting to
remove state court proceedings to federal court, only to fail and
have the cases remanded. One was dismissed (second lawsuit), and
the other removal was untimely and no federal issue before the
court; and it currently has another lawsuit pending in Federal
Court regarding this matter. WF is the one that has allegedly had
two pending cases (second and third lawsuit), and recently filed a
federal proceeding for the purpose of harassing Relator. The fact is
this case does not support a C.P.R.C. Section 16.064(a) suspension
of the statute of limitations.
WF, in 8 years, has not established standing, has falsified
documents in order to obtain summary judgments in its favor, has
a written policy instructing its staff and attorneys to create
fraudulent documents for the sole purpose of foreclosing, and
specifically under oath told this Court and the trial court that it had
accelerated the note and deed of trust, and this Court found that it
had done so. Now it claims the note and deed of trust were not
11
accelerated, contrary to well established law of judicial admissions
and judicial barring of claims when a party says one thing in one
lawsuit, and claims something opposite in a subsequent lawsuit.
WF has also identified Wells Fargo Bank, NA as the owner and
holder of Relator’s mortgage per its November 15, 2006 and April
17, 2006 notice to cure. See Petition Appendix 4 (Exhibit “D”) and
15 respectively and WFR 27, Exhibit “E”. Both appendices are WF’s
own documents and clearly reference the owner and holder of
Relator’s note as Wells Fargo Bank, NA., not the trust. WF
introduced the November 15, 2006 notice to cure and notice of
acceleration as Ex. “E”, WFR 27.
Koonce further objects and moves to strike WF’s documents
175-232, which were not considered by the trial court, as admitted
by WF and its attorney. See Bobbi Stratton’s affidavit in support of
WFR. Furthermore, Koonce objects and moves to strike WF records
as not being properly authenticated, and selectively omitting the
entire summary judgment motion on the 4-year statute of
limitations. Wells Fargo only provided a copy of a Reply to WF’s
response to create a false record, and thus, the entire motion is not
before the court and the record is inadequate, and therefore must
12
be struck. Texas Rules of Appellate Procedure require the Relator to
provide a certified or sworn copy of every document that is material
to the Relator’s claim and that was filed in any underlying
proceeding as the record for this Court’s consideration in an
original proceeding. See Tex. R. App. P. 52.7(a)(1). WF includes
additional documents not filed in the underlying proceeding. The
trial court could not consider documents never provided to it. See
e.g., In re Galveston Cent. Appraisal Dist., 252 S.W.3d 904, 909
(Tex. App.—Houston [14th Dist.] 2008, no pet.) (finding a trial court
did not abuse its discretion when failing to issue a different
discovery order when the documents complained about were never
reviewed by the trial court.) As such, this Court cannot consider
those documents.
A. WELLS FARGO’S OBJECTIONS:
WF objected to Pet.App. 15, 16 and 17. First, Appendix 15,
April 17, 2006 and August 18, 2006 Notice to Cure, are consistent
with the notice of acceleration dated November 15, 2006, Exhibit
“D” to WF MSJ in the first lawsuit, and demonstrate that WF Bank,
N.A. has claimed to be the owner and holder of the Note and Deed
13
of Trust, as well as WF Bank, NA as Trustee, proving these are the
same entity. Koonce Requests this Court to take Judicial Notice of
these two letters, Pet. App.15, and its content.
Moreover, WF introduced the November 15, 2006 notice of
acceleration in its MSJ in the first case as Exhibit “D”, and again in
its SACC (WFR20) as Exhibit “E” (WFR 27). Those exhibits clearly
show WF Bank, NA as the owner and holder of Koonce’s note and
deed of trust. What’s more, WF introduced the new assignments
dated February 17, 2005 as Exhibit “D” to its SACC (WFR 27),
which is contrary to the March 27, 2009 assignments introduced in
the first lawsuit and appeal. WF introduced it and it’s already part
of this Court’s record in the first appeal. Therefore, the objection is
without merit and should be overruled by this Court.
Pet.App.15, was not available and not known until after the
hearing. The SP cured any defects in submitting this document to
the court. It’s a true and correct copy of the original sworn to by
Koonce, it’s a matter of public record, and WF has refused to
produce it pursuant to legitimate discovery request (and wants this
court to reward them for refusing to provide it). Furthermore, there
are specific references to the manual set forth in SP, and once
14
again, Koonce requests that this Court take judicial notice of the
manual as previously described in the Pet., SP. and below.
App.17 is a true and correct copy of Mr. Kennerty’s deposition.
Any defect was likewise cured in the SP, and it’s Appendix. Koonce
requests that this court take judicial notice of the deposition as
previously described in the Pet., SP. below and in In Re Carrsow-
Franklin, 324 BR 33, Bankr. Court, South Dist. New York, January
29, 2015.
WF objected to Koonce’s documents attached in his appendix
stating it violated the Rules because they were not sworn to copies
(in his supplemental Petition, Koonce refiles these documents and
swears to them making such argument moot.). WF complains that
Appendix 3, the PSA, is not the same one as filed in the trial court.
The copy filed with this Court is a certified copy of the PSA, and is
the same version/document filed in the trial court. The only
difference is the one in the trial court is not certified because the
certified copy had not yet arrived. The only copy available was
provided to the trial court. No harm is done by submitting a
certified copy that complies with T. R. App. P. 52.7(a)(1). The certified
document was not available at the time of filing, and WF has
15
refused for the past 9 years to provide a copy of the PSA and the
trial court has continued to refuse to compel WF to produce it. WF
did not object to the document in the trial court below, as far as
Koonce is aware. Since the copy is certified, it makes WF’s objection
meritless and moot.
WF objections to Appendix 16 and 17, respectively, should be
overruled. Koonce requested WF to produce a copy “of all
documents, the policies and procedures of Wells Fargo relating to
default documents, assignments, and endorsements on notes…” to
which WF objected claiming it was overly broad, burdensome and
oppressive, and it was proprietary information. See Appendix “19”,
RFP 18. WF cannot now complain about it when it made a frivolous
objection and refuses to produce a single document. See appendix
“19”. Attached hereto and incorporated herein by reference is a true
and correct copy of WF responses to Koonce’s’ RFP.
Moreover, this information was not known until after the
hearing and just before this Appeal/Petition was filed. Koonce only
became aware of the actual manual and the deposition when he
stumbled upon the case of In Re Carrsow-Franklin 324 BR 33,
Bankr. Court, South Dist. New York, January 29, 2015.
16
WF is asking this Court to ignore its manual and its own
documents. It doesn’t dispute that they are true and correct copies.
Rather, it claims it wasn’t before the trial court, but omits the fact
that it refused to produce it pursuant to a valid RFP. Appendix “16”
is a true and correct copy of Wells Fargo’s attorney Foreclosure
Manual. This Court should note in appendix “16” at pages 2-3
(Foreclosure Special Team Responsibilities – includes document
preparation and execution and to “provide attorney with any
necessary document and execute any necessary document”), 14
(Default Documents), 20 (Assignments), 21, 22, 23 preparation of
assignments, which clearly demonstrate that Wells Fargo routinely
makes up assignments in order to create documents allowing it to
foreclose. The entire manual is an elaborate scheme for how to
produce missing documents to foreclose on homeowners, which is
consistent with Wells Fargo’s documents in this case. Page 28 deals
specifically with Executable Documents includes assignments and
states, “remove all social security numbers, loan numbers…prior to
submitting the documents to Wells Fargo for execution.” Page
32 talks about the Executable team and the “Non-MERs” must have
executed assignments, and properly executed documents must be
17
obtained. Page 36 “Executable Documents Delay Tracking” talks
specifically about Motions for Summary Judgments and executable
documents necessary to obtain an order. Page 146 and 147 again
talks about executing documents and fees for preparation of those
documents prior to foreclosure or MSJ. Relator has alleged since
2006 that WF is not the owner and holder of his note, that its
documents are fraudulent. The Court should take note of this
manual. The manual, in conjunction with the two different sets of
assignments, supports Koonce’s position since the first lawsuit that
the assignments are fraudulent, and further establishes a fraud
upon the trial court and this Court by WF and its numerous
attorneys. Koonce has never changed his position that the
assignments were made up and are fraudulent, but WF changes its
position like the wind. The Court cannot ignore a fraud upon it.
Fraud upon the Court makes the judicial system suspect and
untrustworthy.
B. STATEMENT OF UNDISPUTED FACTS:
First lawsuit: On May 17, 2007, Relator filed his first lawsuit
against Wells Fargo Bank, NA in the 127th Judicial District Court of
18
Harris County, Texas, Cause No. 2007-30212. A summary
judgment was granted in favor of Wells Fargo on acceleration of the
note, right to foreclose and that it was the owner and holder of
Koonce’s note. That case was appealed to this Court under Case No.
01-10-000194-CV, and this Court affirmed, and specifically found
the note had been accelerated by Wells Fargo1.
Second lawsuit: On October 1, 2010, Relator filed his second
lawsuit (“Second Lawsuit”), wherein he sued numerous defendants,
including Wells Fargo Bank, N.A. It is a disputed fact and
falsehood that Appellate sued Wells Fargo, as Trustee. It is
proceedings from the Second Lawsuit that form the basis of this
Mandamus Petition/Accelerated Appeal. Relator nonsuited the
entire case on November 17, 2011, and Wells Fargo filed a cross-
complaint four (4) days later on November 21, 2011 during the
pendency of the third lawsuit.
1
The court question Ms. Orrison’s personal knowledge of accelerating the note and deed of trust, but did not strike
that provision of the affidavit finding it harmless. As such, it upheld the affidavit in its entirety. Furthermore, the
underlying proceeding in that case was seeking the right to foreclose. Since the court granted summary judgment
giving WF the right to foreclose, and this court affirms, WF cannot file another lawsuit seeking the same request
when no new default took place. The right to foreclose was adjudicated in the first lawsuit although Koonce
continues to dispute that right for the various reasons set forth in Koonce’s documents, Petitions on file with this
Court.
19
On or about October 1, 2014, in the second suit, Relator
finally filed a plea to the jurisdiction to confirm the case was
nonsuited 3 years earlier, which the trial Court granted and signed
an order on December 17, 2014 granting the plea. See Appendix
“20”, which is a true and correct copy of the original Order. On
January 5, 2015, Wells Fargo filed a motion for new trial and
motion for reconsideration (WFR 100), which the court granted
(WRF 173).
Third Lawsuit: On December 6, 2010, Relator filed another
case in the 295th Judicial District Court of Harris County, Texas,
Cause No. 2010-79323 (“third lawsuit”). In this suit, WF filed a plea
in abatement challenging the court’s jurisdiction, claiming the
second case was dominant. The trial court denied WF’s motion
finding the second case had already been dismissed in its entirety.
Wells Fargo pursued the third lawsuit, filed and obtained a
summary judgment in its favor (WFR100, Ex. “G”), the case was
dismissed and Wells Fargo never filed an appeal challenging the
court’s jurisdiction.
20
Current Federal Proceeding: On January 14, 2015, Wells
Fargo filed its federal proceeding against Relator, Civil Action No.
4:15-CV-110, claiming that Civil Practice and Remedies code
Section 16.064(a) suspended the statute of limitations. (WFR 213)
C. INTENTIONAL AND SELECTIVE OMISSION OF FACTS AND
PROCEDURES BY WELLS FARGO AND ITS ATTORNEY
On September 13, 2010, WF sent a notice to cure and another
notice of intent to accelerate. The very next day on September 14,
2010, Wells Fargo sent a notice of acceleration. This was the basis
of the second lawsuit and request for injunctive relief. Koonce
objects to WF’s intentional misstatement of facts and falsehood.
WF’s failure to follow Texas Property Code Chapter 51, et seq. for
non-judicial foreclosure proceedings, which requires at bare
minimum at least 20 days notice to cure2 before the note and deed
of trust can be accelerated. In this case, the Deed of Trust requires
not less than 30 days notice to cure.3 As a result of Wells Fargo’s
failure to comply with the Deed of Trust and the Texas Property
Code, Section 51.002, Relator filed suit in the 127th Judicial District
Court of Harris County, Texas, Cause No. 2010-64752 (“second
2
Tex.Property Code, Section 51.002.
3
Plaintiff’s Exhibit “B”, Paragraph 22.
21
lawsuit”). That case was never served, and it was nonsuited4 on
November 17, 2011. While pursuing the third lawsuit in Judge
Baker’s court, WF intentionally filed an untimely cross-complaint
on November 21, 2011, four (4) days too late. This case was also
removed to federal Court for the Southern District of Texas and
then remanded by Judge Werlein, Case No. H-11-cv-4521, on May
18, 2012. After the case was dismissed, Wells Fargo continued to
file into the second lawsuit while prosecuting the third lawsuit. At
one point in August of 2012, Wells Fargo attempted to consolidate
this case (second lawsuit) with the third lawsuit in the 295th
Judicial District Court of Harris County, Texas, but failed. See
below.
Third lawsuit: On December 6, 2010, Relator filed another
case in the 295th Judicial District Court of Harris County, Texas,
Cause No. 2010-79323 (“third lawsuit”). The suit was once again
filed to stop a foreclosure proceeding due to WF’s flagrant disregard
for the Texas Property Code, Section 51.002, which must be strictly
4
A motion for nonsuit extinguishes a case or controversy from "the moment the motion is
filed'"; the only requirement is the mere filing of the motion with the clerk of the Court.'" Univ.
of Tex. Med. Branch at Galveston v. Blackmon, 195 S.W.3d 98, 100 (Tex. 2006) (per
curiam)(quoting Shadowbrook Apts. v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990)).
22
followed. WF never filed a cross-complaint in this lawsuit, in fact,
its request was denied by Judge Baker. Thereafter, WF filed the
untimely cross-complaint in this second lawsuit. RR 8/12/2012
hearing, P. 5, L. 7-175. On December 5, 2011, well within the thirty
days court’s plenary power after the nonsuit was filed, Wells Fargo
filed a plea in abatement claiming the second lawsuit was
dominate over the third lawsuit, and stating the second case
had been dismissed, and admitted it filed an untimely cross-
complaint in the second lawsuit. However, that motion was
denied because the clerk’s website clearly stated that the two
prior lawsuits were disposed of (Final) as a result of the
nonsuit and MSJ, and the trial court, Judge Baker agreed the
second lawsuit had been dismissed in its entirety. Wells Fargo
never appealed that decision, nor filed a writ of Mandamus.
This case was likewise removed to federal Court for the Southern
District of Texas, Case No.H-12-cv-01068, on April 9, 2012, and
5
Mr. Chambers claimed he wasn’t forum shopping, but he was. After Baker denied him his right to file a
counterclaim, he untimely filed the cross-action 4 days too late. Mr. Chambers could have filed a Writ of Mandamus
with the COA, or filed an appeal, but elected not to do so. He could have simply have a non-judicial foreclosure, but
refused to do so. He could have filed a separate lawsuit and consolidated the case in Baker’s court, but he chose not
to do so. Instead, he later changes his arguments and now claims WF and WF trust are separate entities, although
WF Bank, NA has claimed to be the owner and holder of the note, WF is now claiming it’s the Trust. WF further
claims that the trust was a party to the second lawsuit, however, under the paragraph “Introduction, Koonce clearly
names WF Bank, NA as the defendant and not the trust. Stating WF Trust in the rendition of facts is not the same as
suing them.
23
remanded on June 1, 2012, by Judge Gilmore. Wells Fargo pursued
the third state court lawsuit to summary judgment, and obtained
an order granting their motion for summary judgment. The case
was fully litigated. Wells Fargo never filed an appeal, or a Writ of
Mandamus challenging the court’s dominant jurisdiction.
Also selectively omitted is any explanation as to the two
different assignments, which Wells Fargo’s claims are irrelevant.
Having assignments dated March 23, 2009, sworn to as true and
correct copies, attached to a MSJ in the first case, a MSJ granted
based upon those assignments, and this Court confirming the MSJ
and finding the note and deed of trust were accelerated are directly
relevant especially in light of two new assignments dated February
17, 2005 in the federal proceeding; and further, the March 23, 2009
assignments are consistent with Wells Fargo’s Foreclosure
Procedure Manual (Appendix 16) in which it instructs its counsel
and executable team/ foreclosure team to create any document
necessary to allow a foreclosure. See Wells Fargo Attorney
Foreclosure Manual, pages 2, 3 (Foreclosures specialty teams
responsibilities – 2nd to last paragraph states: “provide attorney with
and execute any necessary document.”; pages 14 (default
24
documents), 20 (Assignments) 21, 22, 23 (Prepare assignments and
image executed unrecorded assignment), 28 (Executables), 32
(Executable team – “All Non-MERS – account must have executed
assignment. Properly executed documents must be obtained”), 36
(Executable documents, including those for motion for summary
judgment), 147 (Blanket fee approval “Draft Assignment fees.”). This
manual is directly relevant because it sets forth an elaborate
scheme by Wells Fargo to create documents and present fraudulent
documents for the sole purpose of foreclosing, which is exactly what
happened in this case.
D. JUDICIAL NOTICE ARGUMENTS MADE BY WELLS FARGO
Judicial Notice is often divided into three categories:
adjudication of a fact, legislative facts, and law. Wells Fargo falsely
claims that Koonce asked this Court to take Judicial Notice of the
entire lawsuits in various cases. In reality, Koonce asked this Court
to take Judicial notice of the fact that various cases were filed, and
specifically asked the Court to take judicial notice of WF MSJ in
both the 1st and 2nd lawsuits, judicial notice of documents attached
to the summary judgments, including the assignments, the
assignments attached to WF current federal complaint, WF
25
foreclosure claims manual, the Deposition of Kennerty, the two
different sets of assignments, and this Court’s prior ruling in the
first lawsuit and the documents upon which it rendered it’s
deicision, i.e., Jill Orrison’s affidavit that the note and deed of trust
were accelerated and the two assignments dated March 23, 2009
(App.4/Pet. P.12). Under the heading of Request for Judicial Notice
on Pet. Page 11, P.1, specifically asks the court to take judicial
notice of the MSJ in the first lawsuit and first appeal, its exhibits
and references Appendix 4 (the MSJ), which is a true and correct
copy of the summary judgment filed by Wells Fargo for which this
very Court relied upon in upholding the trial court’s granting of the
MSJ in favor of WF in the prior appeal6. That reference is specific,
and asking the Court to take judicial notice of the documents on file
in its own Court from the prior lawsuit is likewise specific as it
relates to the MSJ and its exhibits. Also, asking the Court to take
judicial notice of its prior opinion is likewise specific, contrary to
WF’s falsehood. Texas Rule of Evidence 201(d) makes mandatory a
6
This is an adjudicated fact, which is defined as “those to which the law is applied in a process of adjudications.”
See O’Quinn v. Hall, 77 S.W.3d 438, 447 (Tex.App. – Corpus Christi 2002, po pet.)(quoting Hill v. Heritage Res.,
Inc., 964 S.W.2d 89, 137 (Tex.App. – El Paso 1997, pet. denied).
26
court’s taking of judicial notice if requested by a party and supplied
with the necessary information. See Tex. R. Evid. 201(d).
13. Asking the Court to take Judicial Notice of the Plea in
Abatement (App. 11 and 12) in the third lawsuit and it’s denial by
Judge Baker of the 295th Judicial District Court is specific (App.13),
and the MSJ that was rendered in that case in favor of WF. This
goes to support Relator’s claims that the second lawsuit was
dismissed in its entirety, WF waived its jurisdictional claim that the
second lawsuit was dominant, which Wells Fargo abandoned. WF
doesn’t even address that issue in its response. It further goes to
support Relator’s claim that WF had compulsory claims which
should have been filed in the third lawsuit. See Pet. page 12,
paragraph 3.
Asking this Court to take judicial notice of the fact that WF
filed a frivolous lawsuit in Federal Court on January 21, 2015 is
specific. In that case, Relator specifically asked the Court to take
judicial notice of the assignments with the new date of February 17,
2005. All of these documents demonstrate fraudulent documents
filed in various lawsuits, inconsistent positions in each lawsuit, and
the fact that Wells Fargo committed a fraud upon this very Court.
27
Taking these two different sets of assignments, with two different
assignment dates, along with Wells Fargo’s Attorney Foreclosure
Manual, and the Deposition of Mr. Kennerty, all support suspicious
fraudulent documents created by Wells Fargo whenever it sees a
need. See also In Re Carrsow-Franklin, 524 BR 33, 47 (Bankr.
Court, SD New York, 2015, in which the court specifically found
that Mr. Kennerty testified to manufactured mortgages on behalf of
Wells Fargo, and the manual gives a guideline on how to
manufacture assignments, etc. App.16, and is confirmed by Mr.
Kennerty. App.17. Wells Fargo does not dispute the authenticity of
the deposition or the Manual in question, but rather states that the
Court shouldn’t take judicial notice because it’s not specific enough
and completely ignores all references throughout the Petition to the
specific documents in those lawsuits. In Re Carrso-Frank, supra,
likewise points out specific provisions in Mr. Kennerty’s testimony,
and his entire testimony is relevant to this case.
Asking this Court to ignore this evidence, claiming that it
should not take judicial notice because Wells Fargo wants to
pretend the notice lacks specificity, is erroneous and consistent
with Wells Fargo’s fraud and intentional misstatements of facts,
28
and falsification of evidence, which cannot be ignored. Such as
position is blatantly unfair and ratifies perjury and fraud upon the
court, violates public trust that the judicial system is fair and
objective. Texas Disciplinary Rules of Professional Conduct 1.02(c),
which states in pertinent part, “A lawyer shall not assist or counsel
a client to engage in conduct the lawyer knows is criminal or
fraudulent.” It is well established that an attorney cannot suborn
perjury as it did in this case, the first lawsuit and the current
federal lawsuit. TEX. DISCIPLINARY R. PROF'L CONDUCT 3.03
(requiring candor toward tribunal); TEX. LAWYER'S CREED: A
MANDATE FOR PROFESSIONALISM IV(6) ("I will not knowingly
misrepresent, mischaracterize, misquote or miscite facts or
authorities to gain an advantage."). See Michiana Easy Livin’
Country v. Holten, 168 SW 3d, 777, fn 22, (Texas 2005).
An appellate court may take judicial notice of a relevant
fact that is "either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned." TEX.R. EVID. 201(b); see Freedom
Communications, Inc. v. Coronado, 372 S.W.3d 621, 623 (Texas
29
2012), citing Office of Pub. Util. Counsel v. Pub. Util. Comm'n of Tex.,
878 S.W.2d 598, 600 (Tex.1994) (per curiam). Judicial notice of
such a fact is mandatory if a party requests it and supplies "the
necessary information." TEX.R. EVID. 201(d). Under this
standard, a court will take judicial notice of another court's
records if a party provides proof of the records. See, e.g., MCI
Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 497 n. 21 (Tex.2010);
WorldPeace v. Comm'n for Lawyer Discipline, 183 S.W.3d 451, 459
(Tex.App.-Houston [14th Dist.] 2005, pet. denied). Tschirhart v.
Tschirhart, 876 S.W.2d 507, 508 (Tex.App.-Austin 1994, no writ); cf.
In re C.S., 208 S.W.3d 77, 81 (Tex.App.-Fort Worth 2006, pet.
denied) ("It is appropriate for a court to take judicial notice of a file
in order to show that the documents in the file are a part of the
court's files, that they were filed with the court on a certain date,
and that they were before the court at the time of the hearing.").
Relator not only referenced the documents, but provided copies of
them in his Appendix.
WF’s reliance on In Re Galveston Central Appraisal District,
252 S.W. 3d 904, 909 (Tex.App. – Houston [14th Dist.] 2008) as
authority is completely misplaced. WF omitted important language
30
to give the impression of an entirely different meaning. Specifically,
In Re Galveston was a mandamus proceeding involving discovery
and valuation of property. That is not the case here. The actual
quote is:
“GCAD further contends the trial court abused its
discretion by granting Valero's motion to quash GCAD's
subpoena and notice to take Morgan Stanley's deposition
by written questions. GCAD argues the Morgan Stanley
documents involve the valuation of assets, including
Valero's Texas City refinery, and are relevant to the
central issue here—the fair market value of the refinery—
and would lead to the discovery of admissible evidence.
The Morgan Stanley documents were not tendered to the
trial court for its inspection and are not part of the
record in this original proceeding. We cannot say the
trial court abused its discretion in granting Valero's
motion to quash when those documents were not before
the trial court or before this court. See Walker,
827 S.W.2d at 837 (stating that the relator has the
burden of providing the appellate court with a sufficient
record to establish its right to mandamus relief).”
(emphasis added)
This is a far cry from the facts in this case in which Koonce
provided copies of the records, and sworn copies of the documents,
WF’s refusal to produce the records in discovery, and WF
intentionally omitting that portion of the quote “or before this court”
in an attempt to create a falsehood and mislead the Court. WF is
31
trying to take advantage of a pro se litigant to a very unfair degree,
which it has been doing throughout the past 8 years.
WF once again misstates the fact by claiming it timely filed a
motion for new trial. The case was dismissed in its entirety on
November 17, 2011, and WF had until December 17, 2011 to file a
motion for new trial. By its own admission, the motion wasn’t filed
until January 5, 2015, which was filed more than 3 years after the
case was dismissed.
WF Bank, NA and WF Bank, NA as Trustee are the same entity:
WF attempts to distinguish WF Trust as a separate party and
claims that a statement of facts contained in a Petition
automatically makes them a defendant in a lawsuit. WF claims that
it is an individual and sued in its individual capacity and likewise
sued as a representative. WF does not reference any language in
the Petition which states that it was sued individually, and as a
representative. Such argument is without merit. First, the cases
cited by WF are distinguished from the facts in this case. For
instance, in Nueces Cnty. v. Ferguson, 97 S.W.3d 205, 214 (Tex.
App.—Corpus Christi, 2003, no pet.), the case involved a Sheriff
being sued as an individual and the county i.e., his legal capacity,
32
for failing to appoint Ferguson to a posted position of training
officer with the Sheriff's Department but was not awarded the
position. Ferguson filed a grievance with the County Commissioner,
who issued a decision stating the position should have gone to
Ferguson. The position was reannounced in May of 1997 with the
same qualifications listed and Ferguson again applied. The position
was reannounced later with different qualifications and awarded to
Repka. Ferguson sued the Sheriff and the County, the court held:
“a person in his official capacity is a "stranger to his rights and
liabilities as an individual" and vice versa. Elizondo, 974 S.W.2d at
931(quoting Todman, 361 F.2d at 746). A person filing suit against
an individual solely in an official capacity thus cannot impose
liability or recover damages from that same person in an individual
capacity, nor can a suit solely against a person in an individual
capacity result in liability or the execution of a judgment against
the governmental unit that the person represents in an official
capacity. Bender, 475 U.S. at 544, 106 S.Ct. 326 (quoting Brandon
v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 83 L.Ed.2d 878
(1985) and Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct.
3099, 87 L.Ed.2d 114 (1985)). Accordingly, the capacity in which a
33
governmental employee or official is sued is significant because it
affects the party upon whom liability may be imposed and from
whom damages may be collected, as well as the defenses that may
be raised. Jackson v. Stinnett, 881 S.W.2d 498, 500 (Tex.App.-El
Paso 1994, no writ).”
The capacity in that case has to do with the Sheriff being sued
individually in his official capacity. In a suit against a person in an
official capacity, a plaintiff is actually seeking to impose liability
against the governmental unit the sued person represents, rather
than on the individual specifically named. Rocha, 52 S.W.3d at
403 (citing Graham, 473 U.S. at 166, 105 S.Ct. 3099). The suit is,
then, in actuality, one against the governmental unit, which is the
legal entity that will be held liable for any judgment rendered
against the individual sued in an official capacity. Graham, 473
U.S. at 165-66, 105 S.Ct. 3099. Those facts are distinguished from
this case.
WF has failed to demonstrate or provide any proof that WF
Bank and WF Bank as Trustee are separate entities, or have
different legal capacities, or that that one entity is an “individual”
or was sued in an “individual capacity”. That language is wholly
34
missing from the Koonce’s Petition, and is not a fair reading to his
pleadings. Without proof of the actual capacities, if any, WF waived
the argument, especially since it makes no argument in the trial
court below. RR 2/13/15 hearing. It’s barred from making this
argument for the first time on appeal.
In 9 years of litigation, WF has never disputed, until now, that
WF Bank and WF Bank, NA as Trustee are the same entities. In
fact, throughout all of the litigation, WF Bank has been the only
party ever sued and served by Koonce, and never once WF Bank,
NA as Trustee; and throughout all litigation, WF Bank and WF
Trust refer to the same entity. WF never complained, objected or
stated that Koonce was trying to mislead them. Fid. & Guar. Ins. Co.
v. Drewery Constr. Co.,186 S.W.3d 571, 573, 574 (Tex. 2006) (per
curiam) (holding that partial omission of defendant's name from the
style of the case in the citation was not grounds for setting aside a
default judgment where the citation was correctly addressed to the
defendant, the defendant's registered agent received the suit
papers, and the defendant did not assert that it was misled into
failing to answer); Dillard v. Smith, 205 S.W.2d 366, 366-67 (Tex.
1947) (where the defendant named in the case caption was "J.A.
35
and E.D. Transport Company" but the defendants named in the
body of the petition were "Coy Dillard and Edna Dillard . . . doing
business under the trade name of J.A. and E.D. Transport Co.," the
court held that the only defendants were the Dillards; the company
was not a separate defendant). The trust is only mentioned in the
facts, not as a party. This argument is barred because Judge Baker
rejected the same argument in the third case and res judicata
and/or collateral estoppels apply. See below.
All citations have been issued to WF Bank, NA, and not one
has been issued to WF Bank, NA as Trustee by Koonce. Each time
WF Bank has been served, and answer has been filed by the Trust,
thereby establishing they are one in the same. See Appendix “21”,
WFR 127, 20 and CR 27, and Koonce requests that this Court take
Judicial notice of Koonce’s First Amended/Supplemental Petition in
the records of the first appeal, Case No. 01-10-00194-CV, and the
Court’s Mandate. The Court should note that WF Bank, NA was
sued as the Defendant, yet the Court’s mandate is for WF Bank, NA
as Trustee. This is prima facie evidence that it is the same entity.
This Court could not render a Mandate or any judgment in the
7
In WF Answer and Affirmative defenses, it doesn’t once mention that it was incorrectly sued, or that WF Bank
was a separate entity from WF Bank, NA as Trustee.
36
name of WF Bank, NA as Trustee unless it was the same party as
WF Bank, NA., the party actually served.
Moreover, WF introduced documents showing that both WF
Bank, NA was the owner and holder of the note, CR 27, Ex. E, and
Wells Fargo Bank, NA as Trustee, CR 27 Ex.F, respectively8.
The Texas Supreme Court recently held, in a case similar to
the one at bar, “The style of this case initially reflected the parties
as they were originally named in the trial court, including "Jesse
Garza." Because De La Garza's briefing in this Court refers to him
as "Jesus De La Garza," which is consistent with his affidavit filed
in the trial court, we have corrected the case style to reflect what we
believe is his legal name. There is no dispute that these names, as
well as "Jesse De La Garza" and "Jesse de la Garza," refer to the
same person.” Sutherland v. Spencer, 376 SW 3d 752, fn1, (Texas
2012).
As in Sutherland, WF Bank and WF Bank as Trustee refer to
the same party as demonstrated throughout the entire litigation, its
own documents attached to various motions, and arguments
previously made to this Court. Koonce never intended to sue WF
8
These are found on Part 2 of the CR
37
Trustee, individually or at all, only WF Bank. However, the
multitude of pleadings clearly show that each and every lawsuit
filed by Koonce, citation was issued to WF Bank, NA, and Koonce
never requested service for the trust.
If the court incorrectly determines that WF Trust was included
in the Petition, it must further conclude that WF Bank as Trustee is
not a separate party, it is the same party as WF Bank, NA.
Therefore, when dismissing WF Bank, and all other named
Defendants, as stated in the caption, Koonce dismissed all parties.
Misnomer:
Alternatively, any such confusion is due solely to WF, who has
been trying to mislead Koonce since 2006, the trial court and this
Court, and if this Court determines the proper party is the Trust,
then any dismissal of WF is a misnomer, especially in light of the
confusing documents, pleadings, Mandate, demands, etc. it’s a
misnomer. See In Re Greater Houston, supra, and SP, Appendix 9.
IN RE GREATER HOUSTON ORTHOPAEDIC, 295 SW 3d 323,
(Tex 2009) is directly on point with identical facts to this case. In Re
Greater Houston, Jody Griswold required surgery as a result of
38
allegedly negligent medical care. Griswold and his attorney, Peter
Zavaletta, entered into an agreement with Greater Houston
Orthopaedic Specialists ("GHOS"), whereby GHOS would perform
the surgery in exchange for payment from the anticipated proceeds
of Griswold's pending health care liability suit.
GHOS later sued Griswold and Zavaletta in Cameron County,
alleging that they failed to pay GHOS approximately $35,000 for
medical services rendered. GHOS subsequently nonsuited that
action. The nonsuit was signed by GHOS's attorney as "attorney for
plaintiff" and included the correct cause number and style, but it
identified GHOS as "Orthopaedic Specialists, L.L.P.," omitting the
"Greater Houston" predicate. GHOS then sued Griswold and
Zavaletta in Harris County. The parties settled, and the Harris
County court signed an agreed judgment on January 7, 2008. The
Court found this to be a misnomer.
Defendant Wells Fargo does not dispute the holding in Greater
Houston Orthopaedics, nor try to distinguish the facts of this case.
Wells Fargo does not dispute that the wrong party was named.
Rather, it attempts to claim they are separate entities, but this is
39
contrary to their own Exhibit “C” in which Wells Fargo Bank, N.A. is
specifically identified as the owner/creditor9, and nowhere is Wells
Fargo Bank, NA as Trustee identified or mentioned. Any such
failure to specifically name Wells Fargo Bank as Trustee was a
misnomer and Wells Fargo Bank and Wells Fargo Bank as trustee
are the same entity. The Supreme Court explained that a misnomer
occurs when a party misnames itself or another party, but the
correct parties are involved. Id. (noting that "[m]isnomer arises
when a plaintiff sues the correct entity but misnames it"); see
also Chen v. Breckenridge Estates Homeowners Ass'n, Inc., 227
S.W.3d 419, 421 (Tex.App.-Dallas 2007, no pet.) (holding that
misnomer occurred when enforcement order referred to actual
Plaintiff "Breckenridge Estates Homeowners Association, Inc." as
"Breckenridge Park Estates No. 1 and No. 2 Homeowner's
Association, a Texas non-profit corporation, also identified in the
pleadings and known as Breckenridge Estates Homeowners
Association, Inc."); Pierson v. SMS Fin. II, L.L.C., 959 S.W.2d 343,
347 (Tex.App.-Texarkana 1998, no pet.) (determining that
misnomer occurred when actual plaintiff, SMS II, instead named
9
November 15, 2006 Notice of cure.
40
another entity, SMS I, in its original petition). Courts generally allow
parties to correct a misnomer so long as it is not misleading. See,
e.g., Enserch, 794 S.W.2d at 4-5 (holding that when a plaintiff
misnames a defendant, limitations are tolled and a subsequent
amendment of the petition relates back to the date of the original
petition); Chen, 227 S.W.3d at 420 ("A misnomer does not invalidate
a judgment as between parties where the record and judgment
together point out, with certainty, the persons and subject matter to
be bound."); Sheldon v. Emergency Med. Consultants, I, P.A., 43
S.W.3d 701, 702 (Tex.App.-Fort Worth 2001, no pet.) ("[W]hen an
intended defendant is sued under an incorrect name, the court
acquires jurisdiction after service with the misnomer if it is clear
that no one was misled or placed at a disadvantage by the error.").
Courts are flexible in these cases because the party intended to be
sued has been served and put on notice that it is the intended
defendant. Pierson, 959 S.W.2d at 347; see also Charles Brown,
L.L.P. v. Lanier Worldwide, Inc., 124 S.W.3d 883, 895 (Tex.App.-
Houston [14th Dist.] 2004, no pet.)(holding that a misnomer does
not render a judgment void "provided the intention to sue the
correct defendant is evident from the pleadings and process, such
41
that the defendant could not have been misled"); see also Adams v.
Consol. Underwriters, 133 Tex. 26, 124 S.W.2d 840, 841
(1939) ("When a corporation intended to be sued is sued and served
by a wrong corporate name . . . and suffers judgment to be
obtained, it is bound by such judgment.. . .").
In this case, the misnomer is not misleading because WF Bank
has been sued in the first lawsuit and every lawsuit since, and has
answered as WF Trustee, not only demonstrating it’s the same
entity as referenced above, but it is in no way prejudiced by the
misnomer.
Based on this holding and the identical facts in this case, it
was a misnomer.
WF Claims That Koonce Specifically Named WF Trust As A
Separate Defendant Is Without Merit, And Barred By The
Doctrine Of Res Judicata And/Or Collateral Estoppel.
WF makes a great deal of effort claiming that Koonce
specifically named all parties to the caption in his nonsuit, but
failed to name WF as Trustee in the nonsuit. WF continues to argue
legal capacity and individual capacity, without designating what it
believes each alleged party was in which capacity, and as stated
42
above, this argument is without merit, unsupported, and argued for
the first time on appeal. See RR 2/13/15 hearing. App.22 The fact
is, the only parties Koonce ever sued were in the caption, and
confirmed in the very first paragraph. Koonce, as a pro se litigant,
at the time did not know that he could use the “nonsuit in its
entirety” language, what pro se litigant would? He thought by
naming each party in the caption, he dismissed the entire case.
WF cannot benefit by misleading all parties, this Court, the
trial court, etc. by previously being served as the Bank and
responding as the Trustee, never objecting, never setting the record
straight, and allow Koonce to reply upon their conduct to his
determinant. WF’s own paperwork shows both the bank and the
trustee as the owner and holder of the note. It now seeks to
establish they are separate entities. All of this clearly established
that it’s the same party. The proof is in their conduct in all other
litigation, their paperwork and lack of prior argument.
WF made this same argument to Judge Baker in the third
lawsuit, in its verified plea in abatement (App.11, Para.5).
Judge Baker rejected this argument and denied the plea
43
(App.13). As such, the matter was decided and res judicata
attaches, or at the very least, collateral estoppels applies.
The party relying on the res judicata must prove (1) a prior
final determination 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 or could have
been raised in the first action. Amstadt v. U.S. Brass Corp., 919
S.W.2d 644, 652 (Tex.1996).
App.11, Para.510, clearly makes this argument, and the sole
basis of the plea in abatement was WF had untimely filed a cross
complaint pending in the 127th Judicial District Court, and
therefore that court had dominate jurisdiction because it was filed
first. The court clearly rejected these arguments. That ruling
became final when the case was dismissed, and WF never appealed.
By outright rejecting WF’s arguments, the court determined that
WF Bank and WF Trust were one in the same, and that the case
had been completely dismissed in its entirety. Furthermore, WF
could have easily proceeded with a non-judicial foreclosure
10 In Fn1, WF clearly makes the argument that the nonsuit did not “effectuate dismissal of
claims against WF.”
44
proceeding without the necessity of filing a lawsuit. However, it
should have filed a counterclaim in Baker’s court, but refused.
Wells Fargo Judicially Admitted that only WF Bank was
sued in the second lawsuit, the one before this Court:
Alternatively, App.11, Para.4, WF judicially admitted that only
WF Bank, NA was sued in the second lawsuit, which is the subject
matter of this court.
It is well-settled in Texas law that any assertion of fact not
pleaded in the alternative which appears in a party’s live pleadings
will be regarded as a formal judicial admission. HoustonFirst
American Savings v. Musick, 650 S.W.2d 764 (Tex. 1983). As long as
the admission stands unretracted, the fact admitted is accepted as
true. Texas Processed Plastics, Inc. v. Gray Enterprises, Inc., 592
S.W.2d 412 (Tex. App. – Tyler 1979). As with other types of judicial
admissions, the statement must be deliberate, clear and
unequivocal. Id.
Assertions of fact, not pleaded in the alternative, in the live
pleadings of a party are regarded as formal judicial
45
admissions. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d
562, 568 (Tex. 2001). A judicially admitted fact is established as a
matter of law, and the admitting party may not dispute it or
introduce evidence contrary to it. Bowen v. Robinson, 227 S.W.3
86, 92 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). This rule
is based on the public policy that it would be absurd and manifestly
unjust to permit a party to recover after he has sworn himself out of
court by a clear and unequivocal statement. Id.
WF does not state in paragraph 4 that WF Trustee was
included in that lawsuit. Therefore, that claim is likewise barred.
WF Cross-complaint was untimely:
It is undisputed that WF filed its cross-complaint 4 days after
Koonce nonsuited the lawsuit in its entirety. A written order of
dismissal is not required as "a condition to the extinguishment of
the action"; rather, the order is "a mere formality memorializing
what already occurred and serves the purpose of triggering
appellate deadlines and the time period within which the trial
court's plenary jurisdiction begins to end." In Re Shamblin, No. 01-
46
10-00961-CV, First District Court of appeals, February 16, 2012,
quoting Trigg v. Moore, 335 S.W.3d at 245 n.1.
E. WF Motion for New Trial:
WF claims the trial court committed no error in granting their
motion for new trial, while ignoring blatant procedural issues,
jurisdictional issues, statements made by both the court and WF at
the 8/12/2012 hearing confirming the case in controversy had been
extinguished, and timeliness.
The trial court originally confirmed Koonce’s motion to confirm
the case was dismissed on November 17, 2011 via nonsuit, and
plea to the jurisdiction. See Appendix “20”, which is a true and
correct copy of the Court’s December 17, 2014 Order granting plea
to the jurisdiction.
1. Wf Admitted Koonce’s Case In Controversy Was
Dimissed In Its Entirety At The 8/12/12 Hearing:
The 8/12/12 hearing clearly shows that WF’s position was
that it filed a cross-complaint within the court’s plenary power and
conceded that Koonce had dismissed all of his claims. (RR4)
On 8/12/12, WF attempted to consolidate the cases claiming
it did not want two parallel trials in this case. (RR3) After the court
47
failed to grant WF motion, it now claims WF as Trustee was never
dismissed. They are judicially barred from doing so. First, any
dispute of whether or not WF as Trustee was dismissed, after the
court’s website acknowledged it was dismissed, the trial court and
WF both conceded that Koonce’s nonsuit extinguished his entire
controversy, would have been required to be appealed within 30
days of the date of the nonsuit (extinguished controversy). Wells
Fargo simply missed the deadline and now makes stuff up in an
attempt to get around limitations. They did this in the Federal
proceeding as well, claiming it filed in the wrong jurisdiction and
therefore timely filed in federal court while ignoring the fact the case
was dismissed three years earlier. WF has a history of being sued as
the Bank and not as the trust, has entered responses as the Trust,
never once disputed that the trust and bank are the same entities
over 9 years of litigation until limitations had run. Their past
conduct estops this claims or judicially bars it.
WF wants this Court to treat a pro se litigant with indifference
and not apply the law equally to it. This is fundamentally unfair,
inequitable, and blatant violation of well established law.
48
By asserting res judicata, Wells Fargo conceded that the
second lawsuit, the one before this Court, was dismissed. It can’t
have it both ways. Either in the third lawsuit the court had
jurisdiction and res judicata applies and therefore the second
lawsuit was dismissed in its entirety, or the third lawsuit the court
had no jurisdiction rendering the order void. So which one is it?
2. Court’s Exercise of its Plenary Powers
At the August 12, 2012 hearing, the court concluded it had
jurisdiction because WF filed its cross-complaint within the time
the court had plenary power. See RR 8/12/12 hearing, P.8, L.4-5,
21-25; P.9, L.1-1511, 23-25; P.10, L.1-12, 20-25; P.11, L.1-5. Not
only does the court admit the “controversy was extinguished” by the
“nonsuit”, but the trial court goes on to say that he can strike it.
This is contrary to well established Texas law. See fn 6; see also
11
The court’s conclusion that it has a right to strike a nonsuit is erroneous. First, this case is not involving any
minor, and secondly, the Texas Supreme Court has made it clear, In Re Greater Houston Orthopeadic Specialist, 295
SW3d 323, 324-325 (Texas 2009), “A plaintiff may nonsuit a case "[a]t any time before the plaintiff has
introduced all of his evidence other than rebuttal evidence," but dismissal "shall not prejudice the
right of an adverse party to be heard on a pending claim for affirmative relief. . . ." TEX.R. CIV. P.
162. "The plaintiff's right to take a nonsuit is unqualified and absolute as long as the defendant has
not made a claim for affirmative relief." BHP Pet. Co. v. Millard, 800 S.W.2d 838, 840 (Tex.1990).
Granting a nonsuit is a ministerial act, and a plaintiff's right to a nonsuit exists from the moment a
written motion is filed or an oral motion is made in open court, unless the defendant has, prior to that
time, sought affirmative relief. Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex. 1982) (per
curiam). (emphasis added)
49
Bruington Engr. V. Pedernal Energy LLC, 403 SW 3d 523, 527
(Tex.App. – San Antonio 2013), :”a dismissal "shall not prejudice
the right of an adverse party to be heard on a pending claim for
affirmative relief ...." Id. Thus, "[g]ranting a nonsuit is a ministerial
act, and a plaintiff's right to a nonsuit exists from the moment
a written motion is filed or an oral motion is made in open court,
unless the defendant has, prior to that time, sought affirmative
relief." In re Greater Houston Orthopaedic Specialists, Inc., 295
S.W.3d 323, 325 (Tex.2009) (orig. proceeding); Houston
Independent School Dist. v. Morris, 355 SW 3d 668, 678, (Tex.App.
– Houston [1st Dist.] 2011) “Any dismissal pursuant to this rule
shall not prejudice the right of an adverse party to be heard on a
pending claim for affirmative relief...." TEX.R. CIV. P. 162; In re
Greater Houston Orthopaedic Specialists, 295 S.W.3d 323, 324
(Tex.2009). Although generally a lawsuit may proceed after
dismissal of a claim by an adverse party, the lawsuit must
independently comport with a court's jurisdiction.See Color Tile, Inc.
v. Ramsey, 905 S.W.2d 620, 623 (Tex.App.-Houston [14th Dist.]
1995, no writ). (Emphasis added)
50
In this case, the trial court has claimed its plenary powers
exceeds the 30-day time frame because WF filed a cross-complaint
AFTER Koonce nonsuited his entire case. BHP Petroleum Co. Inc. v.
Millard, 800 S.W.2d 838, 840-41 (Tex. 1990). A plaintiff's nonsuit is
effective immediately upon filing. See Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862-63 (Tex. 2010). A trial court abuses
its discretion if it refuses to dismiss when a plaintiff files a
nonsuit. Id.; see also In re Greater Houston Orthopaedic Specialists,
Inc., 295 S.W.3d 323, 324-25 (Tex. 2009) (stating that "[g]ranting a
nonsuit is a ministerial act").
A trial court retains plenary power to grant a new trial or to
vacate, modify, correct, or reform a judgment within thirty days
after the judgment is signed. TEX. R.CIV.P. 329b(d); First Alief
Bank v. White, 682 S.W.2d 251, 252 (Tex.1984) (orig. proceeding)
(per curiam). If no party to a judgment files a motion to extend the
trial court's plenary power, the trial court loses plenary power
over the judgment thirty days after the judgment is
signed. Pollard v. Pollard, 316 S.W.3d 246, 251 (Tex.App.-Dallas
2010, no pet.). After the expiration of those thirty days, the trial
court has no authority to set aside a judgment except by bill of
51
review for sufficient cause. TEX.R.CIV.P. 329b(f); Thursby v.
Stovall, 647 S.W.2d 953, 954 (Tex.1983) (orig. proceeding) (per
curiam).
The trial court lost its plenary power on December 17, 2011,
four years ago. The court acknowledged its plenary power is only
good for 30 days following the nonsuit. RR 8/12/12, P.4, L. 12-14;
and confirmed that Koonce extinguished all of his claims when he
filed his nonsuit. RR 8/12/12 P.10, Line 3-12. The docket so
reflected.
3. The Nonsuit was final and required no signed order by the
judge, and WF had 30 days from the date filed to appeal.
It is undisputed Koonce filed his nonsuit on November 17,
2011 and no collateral matters were pending at the time he
dismissed his case. It is well established that no order is actually
required to be signed because it’s merely a ministerial act. See
above arguments under plenary power and conceding controversy
was extinguished.
This case is similar to the Travelers Ins. Co. v. Joachim, 315
SW 3d 860, 862-63 (Tex.2010). In that case, Joachim filed a
nonsuit without prejudice, but the court actually signed an order
52
dismissing the case with prejudice. The Supreme Court held, "At
any time before the plaintiff has introduced all of his evidence other
than rebuttal evidence, the plaintiff may... take a non-suit, which
shall be entered in the minutes. Notice of the ... non-suit shall be
served ... on any party who has answered or who has been served
with process without necessity of court order." TEX.R. CIV. P. 162.
A party has an absolute right to file a nonsuit…A nonsuit
"extinguishes a case or controversy from `the moment the motion is
filed.”
Texas Rules of Civil Procedure, Rule 162, states;
RULE 162. DISMISSAL OR NON-SUIT At any time before
the plaintiff has introduced all of his evidence other than
rebuttal evidence, the plaintiff may dismiss a case, or
take a non-suit, which shall be entered in the minutes.
Notice of the dismissal or non-suit shall be served in
accordance with Rule 21a on any party who has
answered or has been served with process without
necessity of court order. Any dismissal pursuant to this
rule shall not prejudice the right of an adverse party to
be heard on a pending claim for affirmative relief or
excuse the payment of all costs taxed by the clerk. A
dismissal under this rule shall have no effect on any
motion for sanctions, attorney's fees or other costs,
pending at the time of dismissal, as determined by the
court. Any dismissal pursuant to this rule which
terminates the case shall authorize the clerk to tax court
53
costs against dismissing party unless otherwise ordered
by the court. (emphasis added)
By the clear and plain language of the Rule, no actual order is
required. Any such order would merely be a ministerial act, which
the judge refused to do.
Koonce has tried to obtain a copy of the court’s minutes
showing the nonsuit was entered and the case dismissed, but has
been unable to locate one. However, in addition to the court’s
website (App.11.P.2), the docket itself shows the case was
dismissed.
Case
Trial PRE TRIAL Disposed
2/20/2012
127 Coordinators CONFERENCE - No
09:00 AM
Docket (NO TCR) Mediation
Occurred
Since the entire controversy was extinguished by the nonsuit,
the trial court confirmed this fact at the 8/12/12 hearing (see RR)
the only option WF had was to appeal the case on or before
December 17, 2011 or file its motion for new trial, which it did not
do. WF has never filed any other document such as a restrictive
appeal, or perhaps a bill of review that even applies. WF felt at that
54
time that WF Trust had been sued, (which no service was ever
sought, and as explained below in detail, WF Bank and WF Trustee
are the same entity, same party, and any such confusion is a
misnomer), then it was required to file an appeal within the time
period of the court’s plenary powers, especially when WF bank has
held itself out to being the same as WF Trustee in prior pleadings.
See App.20, and this court’s prior opinion, App.7. Stating a fact is
not the same thing as naming the party as a defendant. WF has
caused the confusion as it’s identified itself as the Bank and as the
Trustee, both claiming to be owners and holders of the note and
deed of trust. As such, through their own documentation, have
admitted they are the same party.
4. Defect in WF Motion for New Trial:
A trial court may grant a new trial for good cause, on motion
of a party or on the court's own motion. TEX.R. CIV. P. 320. A plain
reading of WF motion it does not ask the court to set aside the
judgment/order, a requirement for any motion for new trial. It
merely asks for the court to reconsider the order and deny Koonce’s
55
plea to the jurisdiction and motion to confirm case was dismissed
on November 17, 2011. WFR 100.
The order itself does not state “good cause exists”, rather, it
states the motion is meritorious, and does not set aside its prior
order. This key language is missing from the order. See WFR 173.
WF claims the trial court did not err in granting their motion,
which was fatally defective.
WF Motion for New Trial was based upon new evidence.
Although vague, WF motion for new trial on its face is based
on new evidence. Wells Fargo attached numerous exhibits to
support its motion for new trial, which documents were readily
available at the time it filed its initial response to the plea to the
jurisdiction. A hearing on WF’s motion was set although and took
place on February 13, 2015. See RR, App.22. These are two key
factors that must happen when motion for new trial is based upon
new evidence.
WF response to the plea to the jurisdiction was exactly the
same arguments made in the motion for new trial, which was
originally denied. See WFR79, and 100, respectively. No new
evidence or new arguments were presented that would justify the
56
court granting the motion for new trial. In fact, all of the evidence to
support the new trial was readily available at the time WF filed its
response, but refused to provide it to the court.
To obtain a new trial based on newly discovered evidence, a
party must show the trial court that: 1. the movant discovered
admissible and competent evidence after the trial. Jackson v. Van
Winkle, 660 S.W.2d 807, 809 (Tex.1989) overruled on other
grounds, Moritz v. Preiss, 121 S.W.3d 715 (Tex.2003). The
knowledge of both party and attorney is relevant; 2) the late
discovery of evidence was not due to lack of diligence. Waffle House
v. Williams, 313 S.W.2d 796, 813, (Tex.1983); 3) the evidence is not
merely cumulative of other evidence. Waffle House v. Williams, 813
S.W.2d 796, 813 (Tex.1983), Jackson v. Van Windle, 660 S.W.2d
807, 809. Evidence is cumulative when it is of the same kind and
tends to prove the same point as other evidence. New Amsterdam
Cas. Co. v. Jordan 359 S.W.2d 864, 866 (Tex. 1962; In re
Yarbrough, 719 S.W.2d 412, 415 (Tex.App.—Amarilo 1986, no writ);
see, e.g. Mitchell v. Bank of Am., 156 S.W.3d 622, 629 (Tex.App.—
Dallas 2004, pet. denied) (documents from bank showing new
address were cumulative of bank statement showing new address);
57
(3) the new evidence is not cumulative; (4) the evidence is not
merely for impeachment, New Amsterdam v. Jordan, 359 S.W.2d
864, 866 (Tex.1962), and (5) the new evidence is so material that it
would probably produce a different result if a new trial were
granted. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813
(Tex.2010); Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.
1983).
A hearing on WF Motion for New trial was held on February
13, 2015, during which time the same arguments were made. WF
never introduced any evidence. No evidence was ever sworn to by
WF, and none introduced to the court at the hearing. Without
offering any evidence at the hearing, there were no grounds to
support the granting of the new trial.
Moreover, WF’s motion was not verified and there was no
affidavit attached to WF’s motion as required to support each
element listed above. See Brown v. Hopskins, 921 S.W.2d 306, 310-
11 (Tex.App.—Corpus Christi 1996, no writ) (elements must be
established by affidavit).
The court reporter filed the transcription of the February 13,
2015 hearing on motion, and a true and correct copy of this
58
transcript is attached hereto as App.22, for the courts convenience.
No evidence was taken at the hearing.
The order itself fails to state the motion was based on good
cause, or that good cause exists for granting the motion for new
trial, said motion filed over 3 years after the nonsuit.
The Texas Supreme Court noted that “the good cause for
which Rule 320 allows trial courts to grant new trials does not
mean just any cause. If it did, the rule would not have specified
"good" cause. “In Re Columbia Medical Center, 290 S.W.3d. 204,
fn.3 (Tex.2009).
Because the trial court’s order does not state good cause exists
as required by the plain language of the rules, it is defective and
void. Furthermore, the order is inconsistent with the court’s own
statements. App.22, P.6, L.15-22; P.7, L.21-25; P.8. L.1. The court
specifically found that WF had answered as WF Bank, NA on
8/12/12, and that the defendants were all named under Paragraph
A, and the Trust was only referred to in Paragraph B.
The reasons given by the court are not legally valid,
do not follow well established legal standards, and are not specific
or logical. The court order is void.
59
WF claims “Because Wells Fargo, as Trustee was not
dismissed in the lawsuit, along with the other defendants, it
answered and appeared for all purposes, including filing
counterclaims against Koonce. The trial court recognized this
distinction when granting the Motion for New Trial”. However, the
trial court also rejected that same argument when it granted
Koonce’s Plea to the Jurisdiction. To now change his position
without further explanation other than to claim that WF Trustee
was likewise sued, no indication it’s a separate entity renders his
order void.
Because the order is void on its face, and the court’s reasoning
does not follow well established legal standards and law, this court
has Mandamus jurisdiction12.
F. FIRST LAWSUIT WF SOUGHT AND OBTAINED AN MSJ
GIVING IT THE RIGHT TO FORECLOSE
In the 2007 suit, it is an undisputed fact that WF raised the
issue of accelerating the note and deed of trust, and the Court of
Appeals found it had been accelerated. It is an undisputed fact that
12
In re United Scaffolding, Inc. 377 SW 3d 685, 688-89 (Tex. 2012) (examples of what is and what is not grounds
for MNT, and void orders)
60
the Court exercised jurisdiction over the parties and it did not
require the presence of any third parties. It is also undisputed that
WF requested permission to foreclose. (Appendix 4, Paragraph 20)
The case had been ripe for the cross-complaint, which WF never
filed, and res judicata applies.
The party relying on the res judicata must prove (1) a prior
final determination 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 or could have
been raised in the first action. Amstadt v. U.S. Brass Corp., 919
S.W.2d 644, 652 (Tex.1996); "The judgment in the first suit
precludes a second action by the parties and their privies on
matters actually litigated and on causes of action or defenses
arising out of the same subject matter that might have been
litigated in the first suit." Gracia v. RC Cola-7-Up Bottling Co., 667
S.W.2d 517, 519 (Tex.1984). See also Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862-863 (Texas 2010).
Because there was a final judgment in the first case, res
judicata bars WF’s present claim that the note and deed of trust
61
were not accelerated, contrary to a prior position, resulting in an
adverse ruling against Koonce, and WF is judicially barred/stopped
from making such a claim.
Further, although WF Trustee was never sued in this action, it
actually obtained a judgment in the first lawsuit giving it authority
to foreclose Koonce’s property, barring it from its current lawsuit.
Since that issue was already litigated, it cannot now relitigate it.
Garcia, supra. Alternatively, the matters were required to be
litigated in the third lawsuit, which was taken all the way to
judgment. Simply put, WF claims are barred as a matter of law.
Res Judicata cannot be enforced when it’s procured
through means of fraud.
WF attempts to assert res judicata based upon a ruling made
by Judge Baker, and claims that Koonce is estopped from claiming
WF Trustee is the owner and holder of his note, due to an alleged
judicial admission. Although the statement is not unequivocal, is
not sworn to, and is based upon impression13 as a result of
13
Statements which are merely impressions may not be sufficiently clear and unequivocal to be
considered a judicial admission. National Savings Insurance Co. v Gaskins, 572 S.W.2d 573
(Tex. App. – Ft. Worth 1978).
62
fraudulent documents produced by WF, it also flies in the face of
repeated allegations by Koonce, in the first lawsuit, that WF does
not own and hold the note and deed of trust, and that the
assignments were fraudulent. His position has never changed. This
Court acknowledged in its slip opinion that In the First Lawsuit, this
Court acknowledged in its memorandum opinion regarding the First Lawsuit that
“[a]lthough disputed, Wells Fargo appears to be the holder of the note, the owner
of the note, or both,” App.7.
Any such alleged judicial admission by Koonce is waived
because the evidence to the contrary i.e., the two different sets of
assignments and WF Foreclosure Manual establishing that its
policy is to create fraudulent documents for the sole purpose of
foreclosing (App.16) and such fraud is supported by Mr. Kennerty’s
deposition (App.17), is present. See Industrial Disposal Supply Co.
v. Perryman Brothers Trash Service, Inc., 664 S.W.2d 756, 765
(Tex. App.-San Antonio 1983, writ ref’d n.r.e.). WF also did not
present this argument in the trial court below, nor during the first
case when the fraud allegation was first raised, and brought before
this Court. WF has repeatedly treated this matter as a disputed fact
issue, throughout all the litigation. As such, an alleged judicial
63
admission is waived. See id. Koonce has repeatedly objected to the
assignments, and has consistently claimed fraud, unlike WF who
changes its position whenever it suits itself. WF never objected in
the first or third case when the fraud claim arose, and therefore
waived it. See Houston First American Sav. v. Musick, 650 S.W.2d
764, 769 (Tex. 1983).
However, WF is judicially estopped from claiming that it did
not accelerate the note and deed of trust on November 16, 2006, or
at the very latest, on 3/21/07. See WF MSJ filed in first lawsuit
and was subject to the first appeal. See, Koonce Appendix 4,
Exhibit “E”, showing that “foreclosure attorney fees” were charged
against the loan. Judicial estoppel precludes a party who
successfully maintains a position in one proceeding from
afterwards adopting a clearly inconsistent position in another
proceeding to obtain an unfair advantage. Siller v. LPP Mortg., Ltd.,
No. 04–11– 00496–CV, 2013 WL 1484506, at *3 (Tex. App.—San
Antonio April 10, 2013, pet. denied) (mem. op.) (citing United States
v. McCaskey, 9 F.3d 368, 378 (5th Cir. 1993)). “The policies
underlying the doctrine include preventing internal inconsistency,
precluding litigants from ‘playing fast and loose’ with the courts,
64
and prohibiting parties from deliberately changing positions
according to the exigencies of the moment.” Id. The doctrine is
applied when a party “uses intentional self-contradiction as a
means of obtaining an unfair advantage in a legal proceeding.” See
id. (citing In re Coastal Plains, 179 F.3d 197, 205 (5th Cir. 1999)).
Further, the general language involving judicial admissions states
that “[a]ssertions of fact, not plead in the alternative, in the live
pleadings of a party are regarded as formal judicial admissions.”
French v. Gill, 252 S.W.3d 748, 754 (Tex. App.—Texarkana 2008,
pet. denied) (quoting Holy Cross Church of God in Christ, 44 S.W.3d
at 568 (citations omitted)). “A judicial admission that is clear and
unequivocal has conclusive effect and bars the admitting party
from later disputing the admitted fact.” Id.
This is prima facie evidence the note and deed of trust were
accelerated, plus the judicial admission by Jill Orrison. For the
court to now hold that the note and deed of trust were not
accelerated on December 20, 2006 (the date in which payment was
to be made in full or WF will accelerate14 the note and deed of
14
Holy Cross Church of God in Christ v. Wolf, 44 SW 3d 562 (Tex.2001) (intent to accelerate
was determined by letter to cure and letter stating its intent to accelerate the mortgage)
65
trust)(Appendix 4, Exhibit “D” [WF introduced these documents and
cannot now dispute them]), or March 21, 2007, the first date
foreclosure fees were assessed against the account, would reward
WF for committing a fraud upon the court.
Extrinsic fraud is fraud that denies a litigant the opportunity
to fully litigate at trial all the rights or defenses that could have
been asserted.[14] King Ranch, 118 S.W.3d at 752. It occurs when a
litigant has been misled by his adversary by fraud or deception, or
was denied knowledge of the suit. Alexander, 226 S.W.2d at 1001
The US Supreme Court has held15 “This "historic power of
equity to set aside fraudulently begotten judgments," Hazel-
Atlas, 322 U. S., at 245, is necessary to the integrity of the courts,
for "tampering with the administration of justice in [this] manner. . .
involves far more than an injury to a single litigant. It is a wrong
against the institutions set up to protect and safeguard the
public." Id., at 246. Moreover, a court has the power to conduct an
independent investigation in order to determine whether it has been
the victim of fraud. Universal Oil, supra, at 580.”
15
Chambers v. Nasco, Inc., 501 US 32, 44 (1991)
66
Our courts have never allowed a party to take one position in
one lawsuit (accelerated the note and deed of trust), and take
another position in a subsequent lawsuit (note and deed of trust
were never accelerated) as it is an assault upon the integrity of the
courts and the judicial process. We don’t award parties for fraud, or
for saying whatever it takes to win, even if it’s contrary to a prior
position. WF claims that it did not accelerate until September 14,
2010 are baseless and barred because it’s inconsistent with a prior
holding in the first lawsuit and this Court affirming that ruling. Jill
Orrison’s affidavit was never struck.
If the Court were to accept WF’s illegitimate argument
regarding acceleration, WF claims for res judicata would only apply
if Judge Baker had Jurisdiction. It’s undisputed that the second
lawsuit was filed first, the lawsuit which is the current subject of
this Mandamus proceeding. If the trial court in the second case had
jurisdiction at the time the court made the ruling in the third case,
then res judicata would not apply because her ruling would be void.
The Texas Supreme Court has described a judgment as void when
"the court rendering judgment had no jurisdiction of the parties
67
or property, no jurisdiction of the subject matter, no
jurisdiction to enter the particular judgment, or no capacity to
act." Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863
(Tex.2010) (quoting Browning, 165 S.W.3d at 346). See also PNS
Stores v. Rivera, 379 S.W. 3d 267 (Tex. 2012).
Texas has long held that you cannot have two pending cases
on the exact same subject matter, and that the first filing would be
dominate jurisdiction rending any order void in the subsequent
suit. See Wyatt v. Shaw Plumbing, 760 S.W.2d 245, 248 (Texas
1988)(It is well settled that when suit would be proper in more than
one county, the court in which suit is first filed acquires dominant
jurisdiction to the exclusion of other courts.16)
There are three exceptions to the rule of Cleveland v. Ward17
that the court where suit is first filed acquires dominant
jurisdiction: (1) Conduct by a party that estops him from asserting
16
Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974); V.D. Anderson Co. v. Young, 128 Tex.
631, 636, 101 S.W.2d 798, 800 (1937); Cleveland v. Ward, 116 Tex. 1, 19, 285 S.W. 1063,
1070 (1926). As long as the forum is a proper one, it is the plaintiff's privilege to choose
the forum. Mutual Sav. & Loan Ass'n v. Earnest, 582 S.W.2d 534, 535 (Tex.Civ.App.—
Texarkana 1979, no writ).
17
116 Tex. 1, 19, 285 S.W. 1063, 1070 (1926)
68
prior active jurisdiction; (2) lack of persons to be joined if
feasible, or the power to bring them before the court; and (3) lack of
intent to prosecute the first lawsuit. Young, 128 Tex. at 636-37, 101
S.W.2d at 800-01; see also Curtis, 511 S.W.2d at 267. None of these
exceptions applies in this case.
WF is estoped from claiming that second lawsuit retained
jurisdiction while it actively prosecuted the third lawsuit. Its own
activities demonstrate that the second lawsuit was dismissed, and
the third was dominant. As a general rule, when cases involving the
same subject matter are brought in different courts, the court with
the first-filed case has dominant jurisdiction, and the other case
should be abated. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245,
248 (Tex.1988); see also Perry v. Del Rio, 66 S.W.3d 239, 252
(Tex.2001); In re Sims, 88 S.W.3d 297, 303 (Tex.App.-San Antonio
2002, orig. proceeding). The Supreme Court emphasized that "[i]t
has long been the policy of the courts and the legislature of this
state to avoid a multiplicity of lawsuits. The need for judicial
economy has recently become more acute because the dockets of
our trial courts are overburdened, and litigants must wait far too
69
long for their cases to be heard." In keeping with the policy to avoid
multiple lawsuits, Texas Rule of Civil Procedure 97(a) was
promulgated. Wyatt, 760 S.W.2d at 246-47.
WF, in the first lawsuit, was served as Wells Fargo Bank, NA,
yet obtained an MSJ in its favor to give it the right to foreclose
Koonce’s property, establishing it was the owner and holder of the
note, and had accelerated Koonce’s note and deed of trust in the
name of WF Bank, NA as Trustee. The issue of right to foreclose was
tried by consent. WF never objected to any misnomer or misnaming
of the party. This Court affirmed the trial court’s ruling. WF
attempted twice thereafter to foreclosure, but blatantly and
intentionally, with wanton disregard, failed to comply with the
simple foreclosure proceedings set for in the Deed of Trust, and
Texas Property Code, 52, resulting in two subsequent lawsuits
being filed. WF likes to blame Koonce and claim it’s innocent, but
the fact is, it refused to follow proper procedure. After the statute of
limitations ran, WF suddenly claimed, after being served twice as
Wells Fargo Bank, NA, that WF Bank, NA is a separate entity in an
attempt to falsely argue that Koonce did not dismiss the trust,
whom he never sued at anytime whatsoever. The MSJ order in favor
70
of WF in the first lawsuit giving it the right to foreclose bars WF
from making any further claims because that right was already
given to it. All it needed to do was follow Texas foreclosure laws and
foreclose the property. However, it elected to harass the Koonce’s to
the point it caused Joyce Koonce’s death, and not being satisfied
with killing Joyce Koonce, WF continues to harass Mr. Koonce, and
take different positions at different times.
WF has been given special treatment by the courts, in its
illegitimate arguments, refused to produce documents, the court’s
to compel documents, all to Koonce’s determent. Justice must serve
justice and just because WF is wealthy and can afford high powered
lawyers doesn’t mean it should escape liability or be excused from
the law. The fact is it now has two separate assignments. The first
set in the first case dated 3/23/09 and were sworn, and the new set
is dated 2/17/05. WF has introduced these documents. See App.4,
C, App.5. Although WF failed to attach App. to its documents
WFR213, Koonce objects and moves to strike the entire Complaint
starting at WFR213, as it’s incomplete.
WF Plea in Abatement:
71
WF claims there was no finding of jurisdiction by the court in
the WF’s plea in abatement. That’s absurd. The entire motion dealt
specifically with the parties (WF) objecting to the court’s jurisdiction
and asserting that the second lawsuit was dominant. That’s a
jurisdiction question. WF’s claim is without merit.
When WF filed its plea in abatement (App.11), Judge Baker
denied it (App.13), and WF prosecuted the lawsuit.
The party bringing the plea in abatement must show that (1)
the other suit commenced first; (2) the suit is still pending; (3) the
same parties are involved; and (4) the controversies are the same.
See S. County Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 468 (Tex.
App.-Corpus Christi 2000, no pet.) (op. on reh'g). The movant has
the burden of proof to establish the allegations in his motion to
abate. Flowers v. Steelcraft Corp., 406 S.W.2d 199, 199 (Tex. 1966);
S. County Mut. Ins. Co., 19 S.W.3d at 469. (Emphasis added)
Texas State Courts have the power to restrain persons from
proceeding with suits filed in other Courts of this state by granting
an "anti-suit injunction," abating proceedings in a second forum.
Gannon v. Payne, 706 S.W.2d 304, 305 (Tex. 1986). The trial
72
court's decision is reviewed under an abuse of discretion standard.
Id A trial Court abuses its discretion when it misapplies the law to
the established facts of the case. See Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). (Emphasis
added).
Koonce’s request that this Court take judicial notice of the
Harris County District Clerk's own website at the time Koonce filed
his response to WF Motion to Abate on December 16, 201118,
showed:
201079323 - KOONCE, ERNEST RAY vs. WELLS FARGO 7 12/6/2010 295 Civil FORECLOSURE
Active - Civil BANK NA
201064752 - KOONCE, ERNEST RAY vs.BARCLAYS 10/1/2010 127 Civil OTHER CIVIL
Disposed CAPITAL REAL ESTATE INC (DBA HOMEQSERVICING
(Final)
200730212 - KOONCE,
ERNEST RAY vs. HOMEQ 5/17/2007 127 Civil Declaratory
Disposed MORTGAGE SERVICING COMPANY (ACTING Judgment
(Final) ON BEHALF
In ED. Anderson co. v. Young, 128 Tex. 631, 101 S.W.2d 798
(1937), the Court held that:
"As a general rule, in order for the Court where suit is
first filed to have prior jurisdiction over the Court where
it is subsequently filed, the first Court must have all
18
It is unknown when the status changed. However, it is believed it happened sometime at or near August 2012.
73
necessary parties before it, or must have power to bring
them before it.
While, as a general rule, a suit is commenced by filing a
petition with the bona fide intention to prosecute it to
judgment, still the mere physical filing of the petition is
not sufficient to oust the Court in which the same suit is
subsequently filed of active jurisdiction."
Id., 128 Tex. at 637, 101 S.W.2d at 800-801. (Emphasis added)
In Hartley v. Coker, 843 SW 2d 743 (Tex.App. Corpus Christi
1992), the Court stated:
Matters accruing subsequent to the filing of the first suit
may defeat the plea in abatement. Reed v. Reed, 158 Tex.
298, 311 S.W.2d 628, 630 (1958). In this connection,
three exceptions exist to the general rule requiring
abatement of the second suit: (l) a party's conduct may
estop him from asserting dominant jurisdiction in
another Court; (2) the first Court may lack power to join
parties to be joined if feasible; or (3) the party filing the
first suit lacks the intent to prosecute it. Wyatt, 760
S.W.2d at 248. If, as happened here, the second Court
determines that one of the exceptions applies, it may
assume dominant jurisdiction and proceed to judgment.
Hartley v. Coker, 843 S.W.2d 743, 747 (Tex.App.—
Corpus Christi 1992, no writ).
(Emphasis added)
As stated above (Baker suit), the court exercised dominant
jurisdiction over this case. In doing so, it had determined that the
present lawsuit was nonsuited in its entirety, the only exception
that was present at the time WF filed its plea in abatement and the
74
order issued, and it therefore had dominant jurisdiction over the
parties and issues, and the issue of dismissal of the second lawsuit
(present lawsuit) has been decided as a matter of law, and that
determination was final thirty days after dismissal of the third
lawsuit. Res judicata bars Wells Fargo’s claims that this suit wasn’t
dismissed. See Appendix 11 and 12, respectively.
WF has elected it remedy by asserting res judicata as a result
of the summary judgment obtained in the third lawsuit. By claiming
res judicata with regards to limitations, it cannot now assert that
the second lawsuit was pending and had concurrent jurisdiction
and both cases were allowed to be litigated at the same time. To
making that holding, flies in the face of well established law,
including laws prohibiting multiplicity of lawsuit. WF is asking this
court to give it special treatment by allowing it to file as many
lawsuits as it wants on the same underlying claim i.e., right to
foreclosure, prosecute it multiple times, and allow it to
simultaneously have lawsuits pending on the same cause of action
in two different courts. This undermines T.R.Civ.P.97(a), and would
eviscerate the rules.
75
One of our founding fathers, and the drafter of our
Constitution, Thomas Jefferson, stated over 200 years ago:
“I believe that banking institutions are more
dangerous to our liberties than standing
armies,” Jefferson wrote. ” If the American
people ever allow private banks to control the
issue of their currency, first by inflation, then by
deflation, the banks and corporations that will
grow up around(these banks) will deprive the
people of all property until their children
wake up homeless on the continent their
fathers conquered.”
“The issuing power of currency shall be taken
from the banks and restored to the people, to
whom it properly belongs.”
n.
WELLS FARGO’S CLAIMS WERE COMPULSORY
Even if this Court were to decide that it has jurisdiction over
the case, WF’s claims were compulsory and were required to be filed
in the first lawsuit (and in fact WF was granted the right to foreclose
in that first lawsuit) and are therefore barred as a matter of law. See
Tex.R. Civ. P. 97(a). Rule 97. A defendant's failure to assert a
compulsory counterclaim precludes its assertion in later actions
Gary v. Kirland, 550 S.W.2d 410, 411 (Tex.Civ.App.—Corpus
76
Christi 1977, writ ref’d r.e.) See also Wyatt v. Shaw Plumbing
Co., 760 S.W.2d 245, 247 (Tex.1988).
WF’s claims that it can still judicially foreclose is without merit
because it already asked for the right to foreclose in the first lawsuit
and such right was granted, and affirmed by this Court. They are
barred from relitigating that issue.
In Commint Technical Services, Inc. v. Quickel, 314 SW
3d 646 (Tex.App. – Houston [14th District] 2010) Quckel had
filed suit against Commint in Collins county. While that suit
was pending, Commint filed suit against Quickel in Harris
County. The Collins case proceeded to trial, a judgment was
rendered in favor of Quickel and no appeal was taken. Quickel
filed a summary judgment against Commint in the Harris
County case based upon the theory that Commint had
compulsory claims it should have filed in the Collins case and
res judicata applied. The trial court agreed, granted summary
judgment, and the Court of Appeals upheld the judgment
against Commint. This case is directly on point.
77
It has long been the policy of the courts and the legislature of
this state to avoid multiplicity of lawsuits. Wyatt v. Shaw Plumbing
Co., 760 S.W.2d 245, 246 (Tex.1988). The need for judicial economy
is acute because the dockets of our trial courts are overburdened,
and litigants must wait far too long for their cases to be
heard. Id. at 246-47. In keeping with the policy to avoid multiple
lawsuits, Texas Rule of Civil Procedure 97(a), regarding compulsory
counterclaims, was promulgated. Id. at 247. The Texas Supreme
Court has adopted a six-part test for determining whether a
counterclaim is compulsory rather than permissive. In Wyatt, the
Supreme Court stated that a counterclaim is compulsory only if:
(1) it is within the jurisdiction of the court; (2) it is not at
the time of filing the answer the subject of a pending action; (3)
the action is mature and owned by the pleader at the time of filing
the answer; (4) it arises out of the transaction or occurrence
that is the subject matter of the opposing party's claim; (5) it is
against an opposing party in the same capacity; and (6) it does
not require for its adjudication the presence of third parties
over whom the court cannot acquire jurisdiction. Id. If a claim
78
meets these elements it must be asserted in the initial
action. Id. A Defendant's failure to assert a compulsory
counterclaim precludes its assertion in later actions. Id. (Emphasis
added)
In the first lawsuit, WF admitted it accelerated the note and
deed of trust. See Appendix 4, Exhibit B. Contrary to WF position,
this court did actually find the note and deed of trust were
accelerated. See (Orrison’s affidavit is attached as Exhibit “F” to
Plaintiff’s Exhibit “B” attached hereto). See also the First District
Court of Appeals opinion acknowledging the note and deed of trust
had been accelerated (under Personal Knowledge heading). The
2007 suit was a declaratory judgment suit challenging the chain of
title and the equitable cancelation of the note and deed of trust,
Plaintiff’s rights to a tax deferment and DTPA claims. WF moved for
MSJ claiming that two assignments dated March 23, 2009, were
true and correct assignments, that it was the owner and holder of
Koonce’s note and deed of trust, and requested a right to foreclose
Koonce property, which the trial court granted and this Court
affirmed. The disposition of that case was final, and WF cross-
claims were compulsory as it was within the jurisdiction of this
79
Court; (2) it was not the subject of any other pending action at the
time WF filed its answer; (3) the action was mature and owned by
the pleader at the time of filing the answer (See Appendix 4, Jill
Orrison’s affidavit); (4) it arose out of the transaction or occurrence
that was the subject matter of the opposing party's claim (Appendix
4); (5) it was against an opposing party in the same capacity; and
(6) it does not require for its adjudication the presence of third
parties over whom the court cannot acquire jurisdiction.
Alternatively, if the court were to deny Koonce claims, the
compulsory claims were present during the third lawsuit, which
was taken to SJ in favor of WF, which WF now relies upon in
claiming the note and deed of trust were not accelerated on
December 20, 2006, or alternatively March 21, 2007.
Koonce has standing to assert the assignments are void:
Koonce’s standing is not derived from breaches of the PSA,
rather, he challenges WF’s standing to foreclose because the
assignments were void ab initio. Miller v. Homecomings Fin.,
LLC, 881 F.Supp. 2d 825, 831 (S.D. Tex. 2012) and In re Saldivar,
No. 11-10689, 2013 WL 2452699, *4 (Bankr. S.D. Tex. June 5,
2013); (holding New York trusts (substantively the same as the ones
80
at issue here) were not the owners of notes when the notes were
purportedly transferred to the trusts after their startup dates. WF
does not dispute this fact. Koonce has a right to challenge any
defect in chain of title, or defect in who actually owns and holds the
Note, or any other issue which would render the assignment void ab
initio, including evidence of which entity was required to be in the
chain of title.
In Miller, supra @832, the court specifically found:
“Texas courts routinely allow a homeowner to
challenge the chain of assignments by which a party
claims the right to foreclose. See Martin v. New Century
Mortgage Co., 377 S.W.3d 79 (Tex.App.-Houston [1st
Dist.] 2012); Austin v. Countrywide Homes Loans, 261
S.W.3d 68 (Tex.App.Houston [1st Dist.] 2008); Leavings
v. Mills, 175 S.W.3d 301 (Tex.App.Houston [1st Dist.]
2004, no pet.); Shepard v. Boone, 99 S.W.3d 263
(Tex.App.-Eastland 2003); Priesmeyer v. Pacific Southwest
Bank, F.S.B., 917 S.W.2d 937 (Tex.App.-Austin 1996).
Federal district courts in this state have also entertained
chain of title claims by mortgage debtors challenging
foreclosure proceedings. See Millet v. JP Morgan Chase,
N.A., 2012 WL 1029497, *4 (W.D.Tex. Mar. 26,
2012);Norwood v. Chase Home Finance LLC, 2011 WL
197874 (W.D.Tex. Jan. 19, 2011). Nor is Texas alone
among non-judicial foreclosure states in permitting such
suits. U.S. Bank Nat'l Ass'n v. Ibanez, 458 Mass. 637, 941
N.E.2d 40, 53 (2011).
After all, the argument apparently goes, the Millers
owe the money to somebody. In truth, the potential
81
prejudice is both plain and severe — foreclosure by
the wrong entity does not discharge the homeowner's
debt, and leaves them vulnerable to another action on
the same note by the true creditor. Banks are neither
private attorneys general nor bounty hunters, armed
with a roving commission to seek out defaulting
homeowners and take away their homes in
satisfaction of some other bank's deed of trust.
MasterCard has no right to sue for debts rung up on a
Visa card, and that remains true even if MasterCard
has been assigned the rights of another third party
like American Express. Unless and until a complete
chain of transactions back to the original lender is
shown, MasterCard remains a stranger to the original
transaction with no claim against the debtor.
WF cited Reinagel v. Deutsche Bank Nat’l Trust Co, 735
F.3d 220 (5th Cir. 2013), as authority claiming that the transfer of
the mortgage after the start up date is voidable, rather than void.
This is an incorrect holding under New York law19. Under New York
Law, any transaction in violation of the trust agreement is void. New
York Estates, Powers, and Trust Law § 7-2.4. Under New York law,
an attempted transfer to a trust that fails to specify the trust and
the beneficiary is an ineffective conveyance. See Wells Fargo Bank,
N.A. v. Farmer, 19 Misc. 3d 1141(A) (N.Y. Sup.Ct. 2008). In other
19
Under New York Trust Law, every sale, conveyance or other act of the trustee in
contravention of the trust is void. EPTL §7-2.4. Therefore, the acceptance of the note and
mortgage by the trustee after the date the trust closed, would be void. Wells Fargo Bank, NA v.
Erobobo, 2013 NY Slip Op 50675 (N.Y. Supreme 2013)
82
words, trust property cannot be held with incomplete (including
blank) endorsements and assignments that do not indicate that the
property is held in trust by a trustee for a specific beneficiary.
In accordance with the above analysis, two courts have held
that New York trusts substantively the same as the ones at issue
here were not the owners of notes when the notes were purportedly
transferred to the trusts after their startup dates. See In re Saldivar,
No. 11-10689, 2013 WL 2452699, *4 (Bankr. S.D. Tex. June 5,
2013); Glaski v. Bank of America, N.A., 218 Cal. App. 4th 1079,
1097 (Cal. App. [5th Dist.] 2013).
Saldivar involved a New York trust and a PSA that were
substantively the same as the trusts and PSAs at issue here. See
2013 WL 2452699 at *1-*2. The defendants in Saldivdar argued
that, because their note had been transferred to the trust after its
startup date that transfer was void and the trust did not own the
note. The bankruptcy court agreed with this reasoning, holding that
that “under New York law, assignment of the [defendants’] Note
after the start up day is void ab initio.” Id.
Glaski also involved a trust that, like the ones at issue here,
was formed under New York law and subject to IRS requirements
83
for REMIC trusts; the court reached the same conclusion as in
Saldivar:
“[W]e join the position stated by a New York
court approximately two months ago: “Under
New York Trust Law, every sale, conveyance or
other act of the trustee in contravention of the
trust is void. [New York Estates, Powers &
Trust Law] § 7–2.4. Therefore, the acceptance
of the note and mortgage by the trustee after
the date the trust closed, would be void.”.
Glaski, 218 Cal. App. 4th at 1097.
WF urges this Court to ignore the PSA which specifically states
that New York law applies, and asks this Court to rely upon a bad
decision, that doesn’t follow the PSA or the law, and inappropriately
relies upon Texas law. Luckily, the 14th District Court of appeals
has resolved this issue in favor of New York law. “[I]n reviewing the
substantive contract law, we do not apply Texas law because the
parties‘ Agreement is governed by New York law. Home Loan Corp.
v. JP Morgan Chase, 312 SW 3d 199, 204 (Tex.App.—Houston [14th
Dist.] 2010). WF judicially admitted at page 29 of its response that
assignments are contracts, but is wrong that Koonce is a stranger.
He signed a D/T, allegedly the same document WF seeks to enforce.
He signed a Note, the same note WF is allegedly seeking to enforce.
84
He’s not a stranger to the contract. WF ignores well established
Texas law giving homeowners the right to challenge the chain of
title, and cites Leavings v. Mills, which only supports Koonce’s
position.
Furthermore, Koonce isn’t seeking to enforce any contract via
assignments, he’s simply saying the assignments are void under NY
Law because the assignments were deposited in the Trust after its
closing date in contravene of the Trust documents. As such, it’s
void.
WF claims that deeds procured through means of fraud are
voidable20. However, in Koonce’s case, he has repeatedly stated that
the parties who signed the assignments had no authority to do so,
that there’s a break in the chain of title and chain of endorsements,
the assignments are void, completely made up. He never claimed
the deed was void, he claimed the assignments are void. A party has
standing to assert a break in the chain of title and to ensure that
the proper party is being paid. Paying the wrong party has great
consequences and does not alleviate a person’s obligation under the
note. See Miller v. Homecomings Fin., LLC, 881 F.Supp. 2d 825, 831
20
Argent Mortgage is no longer in existence, a convenient fact for WF.
85
(S.D. Tex. 2012)
WF’s claims are without merit.
WF has a broken chain of title and chain of endorsements,
the Allonge was not attached to the note as required by Texas
law.
WF claims it has an unbroken chain of assignments and
therefore has clear title. This is a falsehood. There no evidence to
show the Ameriquest ever purchased the note and deed of trust.
There’s literally two sets of different assignments, each set
containing two different dates i.e., 3/27/09 and 2/17/05 making
each suspect. See App.16 and 17 respectively. In fact, WF own MSJ,
App.4,Ex.”A”, clearly shows no allonge attached to it. Koonce asks
this Court to take judicial notice of this document on file in this
Court records under Case No. 01-10-00194-CV. “A person can
become the holder of an instrument when the instrument is issued
to that person; or he can become a holder by negotiation. U.C.C.
cmt. 1, TEX. BUS. & COMM.CODE ANN. § 3.201 (Vernon 2004).
Negotiation is the "transfer of possession of an instrument ... by a
person other than the issuer to a person who thereby becomes its
holder." TEX. BUS. & COMM.CODE ANN. § 3.201(a); SMS Fin., 167
86
F.3d at 238. "[I]f an instrument is payable to an identified person,
negotiation requires transfer of possession of the instrument and its
indorsement by the holder." TEX. Bus. & COMM.CODE ANN. §
3.201(b); SMS Financial, 167 F.3d at 238; Jernigan v. Bank One,
Tex., N.A., 803 S.W.2d 774, 776 (Tex.App.-Houston [14th Dist.]
1991, no writ). The indorsement must be written by or on behalf
of the holder and on the instrument or on a paper so firmly
affixed to it as to become part of it. Jernigan, 803 S.W.2d at 776.
If an instrument not in the possession of the original holder lacks a
written indorsement and proof of the chain of title, the person in
possession does not have the status of a holder. See id. at 776-77.”
Leavings v. Mills, 175 SW3d 301, 309 (Tex.App. – Houston [1st Dist.]
2004). WF judicially admitted they do not own the note when they
filed the Note without the allonge.
WF HAS NO JUDICIABLE INTEREST, DOES NOT HAVE
STANDING, DOESN’T OWN THE NOTE
WF claims because it filed with the County clerk an
assignment, it has the right to foreclose. First, the D/T is the
instrument to enforce the note. As stated above, the note wasn’t
properly transferred to WF because the allonge was not attached to
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the Note and the note is payable to Argent Mortgage Company, LLC,
which no longer exists. Furthermore, there’s never been any proof
that anyone endorsing the note had authority to do so. All
documents are fraudulent as Koonce has maintained since the
beginning.
Furthermore, WF was paid by the Radian Guarantee
insurance policy and therefore there no judicial interest to litigate
i.e., it has no damages. It’s already been compensated. WF does not
dispute this fact.
Tex. Civ. Prac. & Rem. Code § 16.064(a) does not apply.
WF argument is completely without merit. First, a district
court is a correct court of competent jurisdiction, and WF admitted
when it admitted that the federal judge rejected their remove. See
WFR 100, 103, Para.10. State law is what applies, and state
jurisdiction.
Secondly, and more importantly, this case was nonsuited on
November 17, 2011, more than 4 years ago, well beyond the saving
grace set forth in Tex. Civ. Prac. & Rem. Code § 16.064(a). More
88
importantly, WF intentionally filed in the wrong case, and therefore
it does not apply.
By invoking this statute, WF judicially admitted that the trial
court did not have jurisdiction. There excuses are not sound, and
they have no case law to support their position. All cases involving
invoking of this statute have to do with accidentally filing in the
wrong court and that court lacked jurisdiction over the parties,
proceedings or subject matter. It is not for cases where jurisdiction
was challenged because the case was nonsuited 4 years earlier.
Such position is absurd, and it would eviscerate the purpose of the
statute. As stated in detail above, they are prohibited from multiple
lawsuits involving the same party, especially those simultaneously
pending in two separate courts. WF claims Koonce cites no case
law, so claim is waived. This is a case of first impression and
therefore there’s been no waiver as no case law exists as pointed
out by WF. RB, P.38. However, WF may have waived any defense by
not briefing this claim, i.e., citing a specific case in which a nonsuit
was filed 4 years earlier, and a plea to the jurisdiction based on that
nonsuit which was granted, extend the statute as provided by
16.064(a). This is not the purpose of the statute. It was never
89
intended to allow a party to refile after a case was nonsuited more
than 4 years earlier, and the trial judge refusing to dismiss the
nonsuited case.
DUE PROCESS CLAIMS:
WF arguments are without merit. Koonce clearly explains, and
reiterates above, that the docket showed the case dismissed
pursuant to the nonsuit. Again, there’s no case directly on point
that Koonce can find. The problem is the change in the status of the
case, appears to be a result of an ex parte communication between
Judge Sandill and WF. We do not know why it was changed.
Furthermore, the point was changing a case from disposed of final,
to active, without giving notice, does violates ones due process
rights. It doesn’t actually give notice to a party to be heard, or even
have suspicion the case is still pending. As stated above, Judge
Sandill admitted that Koonce’s case was extinguished in its entirety
at the 8/12/12 hearing (App.22).
"The Fourteenth Amendment's procedural protection of
property is a safeguard of the security of interests that a person has
90
already acquired in specific benefits." Board Of Regents Of State
Colleges v. Roth, 408 U.S. at 576, 92 S.Ct. 2701.
"Liberty" and "property" are broad and majestic terms. They
are among the "[g]reat [constitutional] concepts . . . purposely left to
gather meaning from experience. . . . [T]hey relate to the whole
domain of social and economic fact, and the statesmen who
founded this Nation knew too well that only a stagnant society
remains unchanged." National Ins. Co. v. Tidewater Co., 337 U. S.
582, 646 (Frankfurter, J., dissenting)
In Kelly v. Dept. of Agriculture, Slip Copy, 2007 WL 786351,
the court held, "the introduction of new and material information by
means of ex parte communications to the deciding official
undermines the public employee's constitutional due process
guarantees of notice," and that "ex parte communications rising to
the level of a procedural due process violation cannot be excused as
harmless error."
Changing the status, after admitting the case was dismissed in
its entirety, and after Judge Baker denied a plea in abatement
arguing that the second lawsuit had dominate jurisdiction and that
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motion was denied, makes it very suspicious that the court and WF
are in bed together in this case and Koonce due process rights have
been violated ad initio.
PRAYER
For the above reasons, Relator requests that this court reverse
and rendered that the case was dismissed in its entirety on
November 17, 2011, that Judge Sandill sign a order so stating, the
court and order the trial court and the Honorable R.K. Sandill
written statements explaining, when, how and why the status was
changed, on how’s authority and what prompted the change;
produce phone records for Judge Sandill, Chris Daniels or any
other court member/clerk, including any messages, emails, or other
forms of communication between November 17, 2011 up to the time
the change was made; and last, but not least, show what happened
to Wells Fargo’s exhibits to its motion for summary judgment in the
first case, which went up on appeal before this court which
confirmed the mortgage had been accelerated, and for such other
and further relief as the court deems just and proper.
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Dated: December 14, 2015
Word Count: 17,479
Respectfully submitted,
/s/ Ernest Ray Koonce
Ernest Ray Koonce
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; additionally, the 127th District Clerk was
advised via telephone that this Mandamus was being filed:
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
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APPENDIX 19
APPENDIX 20
APPENDIX 21
APPENDIX 22
APPENDIX 23
APPENDIX 24
NO. 01-15-00440-CV
In The First Court of Appeals of Texas
In Re Ernest R. Koonce, Relator
Original Proceeding from the 127th Judicial District of Harris
County, Texas
Cause No. 2010-64752
Supplemental Application for Writ of Mandamus
SWORN STATEMENT
THE STATE OF TEXAS,
COUNTY OF HARRIS
My name is Ernest Ray Koonce, I am over the age of 18, of
sound mind and competent to make this declaration. If called upon
to do so, I could and would testify to the following facts. I was born
on January 22, 1941. I am a resident of Harris County, Texas. I
have resided at 15938 Fleetwood Oaks Drive, Houston, Texas
77079 for the past 11 years.
I am the Relator in the above entitled case. The attached
records are part of my litigation file for the past 8 years, which I
have maintained in the regular course of this litigation.
Attached are 7 pages of records. These are the original records
or exact duplicates of the original records.
The records were made at or near the time of each act, event,
condition, opinion, or diagnosis set forth.
Page 1 of 3
It is the regular practice of myself to make and/or maintain
this type of record at or near the time of each act, event, condition,
opinion, or diagnosis set forth in the record
The records were made by, or from information transmitted
by, persons with knowledge of the matters set forth; and/or it is the
regular practice of myself to maintain this type of record to be made
by, or from information transmitted by, persons with knowledge of
the matters set forth in them
The records were kept in the course of regularly conducted
business/litigation activity. It is in the regular practice of myself to
keep this type of record in the regular course of the litigation for the
past 8 years.
It has been my practice to maintain these records of the
litigation activities and Wells Fargo’s records.
These Appendices are to run in succession to the 19
Appendices in my Supplemental Mandamus.
Upon review of the sworn appendix filed with my
Supplemental Petition for Writ of Mandamus, I noted an error was
made. In Appendix 5, I incorrectly stated that the proceeding took
place in state court, when in fact it was a federal court in which
Wells Fargo had introduced the proceeding.
Continuing with the Supplemental Appendix, attached hereto
as Appendix 19 is a true and correct copy of Wells Fargo’s
Responses to my Requests for Production.
Page 2 of 3
Attached hereto as Appendix 20 is a true and correct Wells
Fargo’s Original Answer to my Original Petition in Cause No. 2007-
30212.
Attached hereto as Appendix 21 is a true and correct copy of
the Reporter’s Record of a hearing held on August 12, 2012.
Attached hereto as Appendix 22 is a true and correct copy of
the Reporter’s Record of a hearing held on February 12, 2015.
Attached hereto as Appendix 23 is a true and correct copy of
my Notification to the Court that a Ruling was Overdue.
Attached hereto as Appendix 24 is a true and correct copy of
Judge Sandill’s Order denying my Motion for Accelerated Appeal.
My name is Ernest Ray Koonce, my date of birth is January
22, 1941, and my address is 15938 Fleetwood Oaks Drive, Houston,
Texas 77079, in Harris County, Texas, within the United States. I
declare under penalty of perjury, under the laws of the laws of the
State of Texas that the foregoing is true and correct to the best of
my knowledge.
Executed in the United States of America, in the County of
Harris, State of Texas on this 14th day of December, 2015.
/s/ Ernest Ray Koonce
Ernest Ray Koonce
Page 3 of 3