in Re Ernest Ray Koonce

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

87
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

91
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.

92
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

93
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