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

ACCEPTED
01-15-00228-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/15/2015 2:46:26 AM
CHRISTOPHER PRINE
CLERK

FILED IN
No. 01-15-00440-CV 1st COURT OF APPEALS
HOUSTON, TEXAS
________________________________________________________________
12/15/2015 2:46:26 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 TO SUPPLEMENTAL PETITION FOR WRIT OF MANDAMUS

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 TO SUPPLEMENTAL 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 to Supplemental 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

AP. Appendix supplied by Koonce. It specifically refers to
Appendix and supporting affidavit, which is part of the
Supplemental Petiton for Writ of Mandamus.

CR Clerk’s Record

DT Deed of Trust

Koonce Ernest Ray Koonce, plaintiff/cross-defendant, and
Appellant/Realtor

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
Abdygapparova v. State, 243 S.W.3d 191, 208 (Tex. App.-San Antonio 2007,
pet. ref'd). ............................................................................................................................... 28
Alexander, 226 S.W.2d at 1001 ......................................................................................... 14
Chambers v. Nasco, Inc., 501 US 32, 44 (1991)........................................................... 14
Erskine v. Baker, 22 S.W.3d 537, 539 (Tex.App.-El Paso 2000, pet. denied)..... 28
Hazel-Atlas, 322 U. S., at 245 ............................................................................................ 14
In Re Carrsow Franklin, @ 46-47 ...................................................................................... 10
In re Thoma, 873 S.W.2d at 496. ...................................................................................... 24
King Ranch, 118 S.W.3d at 752 ......................................................................................... 14
Mann, Supra............................................................................................................................. 19
on In re Galveston Cent. Appraisal Dist., 252 S.W.3d 904, 909 (Tex. App.—
Houston [14th Dist.] 2008, no pet.) .............................................................................. 16
Universal Oil, supra, at 580 ................................................................................................. 14
Walker, 827 S.W.2d at 837 .................................................................................................. 16
Statutes
Tex. Gov't Code Ann. tit. 2, subtit. G, app. B (Vernon 1994 and Supp. 1996). . 24
Texas Code of Judicial Conduct......................................................................................... 24
Other Authorities
Government Code Section 51.303 ..................................................................................... 19
IDENTITY OF PARTIES AND THEIR COUNSEL.............................................................. 3
Koonce did seek documentation and does have authority to challenge the
Clerk and the Court:........................................................................................................ 17
OBJECTION ................................................................................................................................ 6
TERMS AND ABREVIATIONS USED WITHIN THE REPLY BRIEF ....................... 4
WELLS FARGO’S OBJECTIONS......................................................................................... 6
Rules
B. Duty of the Judiciary .................................................................................................... 23
Canon 3 ...................................................................................................................................... 26
Canon 3.B.(10) ........................................................................................................................ 23
Canon 3.B.(11) ........................................................................................................................ 23
Canon 3A (4) ............................................................................................................................. 25
Canon 3A(5) .............................................................................................................................. 25
Canon 3B(8),............................................................................................................................. 24
Canon 8.B.1............................................................................................................................. 23
Rule 2.9: Ex Parte Communications, ABA................................................................. 21
Texas Code of Judicial Conduct: ....................................................................................... 23

5
 OBJECTION

Realtor objections to WF’s summary of argument and

prejudicial statements solely designed to prejudice the court against

Realtor when it claims that Realtor “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 Realtor. Realtor moves to

strike that statement and all other prejudicial statements that have

nothing to do with this Mandamus proceedings. If anyone is trying

to get a house for free, it’s WF.

A. WELLS FARGO’S OBJECTIONS:

Contrary to WF claims, the appendix was labled, and tabbed,

as required by Tex. Rules of App. Pro. WF is blatantly lying about

this fact. The court rejected Koonce’s initial brief and required him

to tab it, and the supplemental brief has papers between each

appendix, clearly labeled and its tab. This is exactly the type of

falsehood WF has consistently claimed throughout the litigation.

6
 WF next objects to Appendix 16, which is Wells Fargo’s

Attorney Foreclosure Manual. In Koonce’s supplemental petition,

he explains to the Court that WF refused to produce this document

pursuant to RFP 18. See Ap.19, RFP 18. Furthermore, as

explained in Koonce’s Reply Brief, this particular document, as well

as Kennerty’s deposition (Ap.17), was not known at the time of the

hearing, and it was not available. In Re Carrsow-Franklin, 524 B.R.

33 (2015), was not decided until January 29, 2015, less than two

weeks before the hearing, and Koonce was unaware of the case.

However, WF refused to provide this document pursuant to a proper

discovery request. App.19, RFP 18, which is in their typical fashion.

Koonce should not be penalized for WF not producing it and not

knowing about it until after the hearing. Furthermore, WF likewise

asked the Court to take judicial documents which were not before

the trial court, and once again asks for special treatment.

WF has not demonstrated any harm by this Court taking

judicial notice of App. 16, and the specific pages referenced by

Koonce., i.e., pages 2 , 3 (Foreclosure Special Team Responsibilities

– includes document preparation and execution and to “provide

attorney with any necessary document and execute any necessary

7
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 which 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 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 Motions for

Summary judgment. Realtor has alleged since 2006 that Wells

Fargo is not the owner and holder of his note, that its documents

are fraudulent and created solely for the purpose of foreclosure.

8
 In Re Carrsow-Franklin, 524 B.R. 33 (2015), the opinion by

the Honorable Robert D. Drain, a judge in the Bankruptcy Court of

the Southern District of New York held that Wells Fargo had failed

to establish standing to foreclose on the debtor's mortgaged real

property. Id. at 54-55. In so holding, he expressed suspicion with

Wells Fargo's production, after the initiation of the action, of a

note different from the note it presented when it commenced

the action, and indorsed, for the first time, in blank, and several

assignments. The court found the Assignment was prepared by

Wells Fargo's then counsel to "improve" the record supporting

Wells Fargo's right to file a secured claim, similar to the

"improvement" of the record in In re Tarantola, upon which the

court relied, along with the two different versions of the note at

issue there, to find that the presumption of authenticity was

rebutted. 2010 WL 3022038, at *4-5, 2010 Bankr.LEXIS 2435, at

*12-13. After review of the WF Attorney Foreclosure Manual and

Kennerty Deposition, Judge Drain held that the evidence

presented at an evidentiary hearing showed "a general

willingness and practice on Wells Fargo's part to create

documentary evidence, after-the fact, when enforcing its

9
claims," and that Wells Fargo had therefore not met its burden of

establishing that the indorsement on the newly produced note was

genuine. Id. at 47.

Judge Drain further found In Re Carrsow Franklin, @ 46-47

“It appears from Mr. Kennerty's deposition transcript, although his

testimony on this point was at times quite evasive, that during the

period in question in 2010 he signed on average between 50 and

150 original documents a day in connection with Wells Fargo's

administration and enforcement of defaulted loans. Deposition

Transcript, dated October 15, 2012, of Herman John Kennerty

("Dep.Tr.") at 89-92. This was part of his duties as the Wells Fargo

manager in charge of "default documents." Id. at 44. In other words,

on a daily basis Mr. Kennerty and his team, members of which he

also testified signed a like number of documents each day, id.,

processed a large volume of loan documents for enforcement with

very little thought about what they were doing. It is not clear that

Mr. Kennerty fully understood the legal consequences of signing

these documents; for example, he testified when shown the

Assignment of Mortgage that he executed it not on behalf of the

10
assigning party but, rather, on behalf of the party "in getting the

assignment," although he also testified that "I'm — I'm not an

attorney, but the way I understand this document, it was assigning

the mortgage, taking it out of MERS' name and putting into Wells

Fargo Bank's name." Id. at 93-4. It is clear, however, that he pretty

much signed whatever outside counsel working on the default put

in front of him and that these documents often included

assignments, including the Assignment of Mortgage, drafted by

Wells Fargo's outside enforcement counsel to fill in missing gaps in

the record.

Thus, in describing the work of his "assignment team" Mr.

Kennerty stated, "[I]f there was not an assignment in there [that is,

in Wells Fargo's loan file] then they would — excuse me, they would

advise the attorney that we did not have it, that they would need to

draft the — the appropriate assignment." Id. at 116. See also id. at

76 ("[I]f the assignment needed to be created they would have

advised the attorney, the requesting attorney to — that we did not

have the assignment in the collateral file, then they needed to draw

up the appropriate document."); id. at 121 ("Once it [that is, the

11
collateral file] was received then they would check to see if it was

something that could be used or not used; and, if it's something

that was in the file, but couldn't be used then they would advise the

requesting attorney to go ahead and draft the actual document.").

Because Wells Fargo does not rely on the Assignment of Mortgage to

prove its claim, the foregoing evidence is helpful to the Debtor only

indirectly, insofar as it goes to show that the blank indorsement,

upon which Wells Fargo is relying, was forged.”

This case is directly on point. It’s exactly what happened in

Koonce’s case as Ap.4, Ex. “C” shows assignments dated 3/27/12

which is consistent with WF policy of generating fraudulent

documents anytime it needs one to foreclosure or needed for court

to prove ownership. The next document, App.5, shows new

assignments that WF forged and filed with the court dated February

17, 2005. WF selectively omitted these documents for the record.

As stated in Koonce’s Reply, Ap.4, Ex. A does not have any

indorsement, or one firmly affixed to the Note. This is prima facie

evidence that WF is not the owner or holder of the note, and could

not have obtained it through means of negotiation or otherwise.

12
The note is payable to Argent Mortgage Company, LLC which no

longer exists.

WF’s next objection is Ap. 17, the Deposition of H. John

Kennerty, stating it wasn’t before the trial court. This deposition

was unavailable at that time. However, Judge Drain specifically

refers to the same provision of Kennerty’s deposition in In Re

Carrsow-Franklin, 524 B.R. 33, 46-47 (2015) as set forth above.

This deposition is directly relevant to the issue at hand because

Koonce has always maintained that his documents were forgeries.

Under Vazquez v. Deutsche Bank National Trust Company, N.A., NO.

01-13-00220-CV, 2014 WL 3672892, at *4 (Tex. App.-Houston [1st

Dist.], July 24, 2014) the assignment is void ab initio. WF

specifically concealed this information, and now seeks to benefit

from it. For the reasons set forth in great detail and briefed, WF is

barred from asserting it is the owner and holder of Koonce note and

deed of trust.

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

13
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 held1 “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.”

Next, WF objects to Ap.18, the affidavit of Christine Reule and

its exhibits showing the number of times documents and

information was requested to clarify this matter, and the stone wall,

runaround and outright refusal to provide the answers. The trial

court outright refused to provide response.

On May 5, 2015, Koonce filed his Plaintiffs Notice that A

Ruling on His Motion for Accelerated Appeal Is Overdue As A

1
Chambers v. Nasco, Inc., 501 US 32, 44 (1991)

14
Hearing Was Set by Submission On February 23, 2015, And Notice

that evidence Is Missing In Cause NO. 2007-30212 in the 127th

Judicial District Court. In that motion, Koonce asked the court to

provide an explanation as to why documents were missing and how

the status was changed from dismissed final, to active without any

hearing, the exact same issues before this Court. The court denied

the motion on May 11, 2015. That order is before this Court.

Koonce is attaching as Appendix 23, a true and correct copy of

his “Plaintiffs Notice that a Ruling on his Motion for Accelerated

Appeal is Overdue as a Hearing was Set by Submission on February

23, 2015, and Notice that Evidence is Missing in Cause No. 2007-

30212, in the 127th Judicial District Court; and as Appendix 24, a

true and correct copy of the Court’s order denying the request.

The affidavit is relevant because it sets out the fact that even

with the assistance of a family friend, the court and the clerk’s

office went to great lengths to cover up whatever transpired below

with regard to the change in the docket, which appears to be ex

parte in nature. It’s highly suspicious activity.

WF does not complain of any inaccuracies in the records

themselves to which it objected, they merely make an unfounded

15
claim that it wasn’t before the trial court below, or otherwise

demonstrates any harm. WF’s reliance on In re Galveston Cent.

Appraisal Dist., 252 S.W.3d 904, 909 (Tex. App.—Houston [14th

Dist.] 2008, no pet.) is misplaced.

In that case, Gaveston Central Appraisal District issued

subpoena and notice to take Morgan Stanley's deposition by written

questions, which the trial court quashed. The court held “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).” Obviously, the trial court quashed the subpoena because it

16
didn’t have document necessary to make a proper ruling. That is

not the case here.

This is an entirely separate issue from a Declaration clarifying

efforts, and documents that were unavailable due to WF’s conduct

in refusing to provide them. The court should overrule the

objection as it is unfounded, unsubstantiated, and irrelevant to this

case. Furthermore, in the interests of justice and judicial

expediency, WF objections should be overruled.

OBJECTION:

Koonce objects to WF’s response to supplement Writ of

Mandamus on the grounds it does not address any of Koonce’s

issues in his supplemental Writ under heading “A” (p.10-15). It

merely rehashes what WF already claimed in their response.

There’s nothing new, and therefore it should be struck.

Koonce did seek documentation and does have authority to

challenge the Clerk and the Court:

WF claims that Koonce did not properly seek documents from

the Clerk of the Court, implies Koonce should have filed a lawsuit

and sought discovery, and further does not have standing to

17
challenge the Clerk’s actions in these proceedings, which is not

true.

These arguments are without merit and WF has cited no

authority that requires a party to obtained discovery from the Clerk,

and thereby has waived this argument.

Nowhere in any statute does it require Koonce to do so. That

position is absurd. The clerk’s records are a matter of public

record. Under WF’s unsupported theory, anytime a member of the

public requests a document or questions what happened to a

document, or why a docket changed, they would have to file suit

and seek discovery. WF has tried to illegitimately reframe the issue

into a discovery issue consistent with the Tex. Civ. Rules of

Procedure. That is not the issue her. All Koonce is trying to do is

determine what happened and if there was any misconduct, and the

clerk has outright refused to provide any answers to anyone, and so

has the trial court. The only way to obtain this information is

through a Writ of Mandamus directing the parties to provide the

answers and produce missing documents. If there is corruption at

work here, then the Mandamus is the proper fire hose to extinguish

that blaze in the system.

18
 In Mann v. Ramirez, 905 S.W. 2d 275, (Texas 1995), a case

involving a traffic accident and misconduct by the clerk’s office,

including destroying document, and the clerk’s duty pursuant to

Government Code Section 51.303. Nowhere in that case did the

Supreme Court require a party to file a lawsuit, or otherwise

conduct discovery to compel the Clerk to comply with its duties

under section 51.303, or provide answers to why a status was

changed, on whose authority it was made, etc.

WF’s argument is without merit, unsupported by any

authority, and therefore waived.

WF next claims C and D are inadequately brief. As pointed

out by Koonce, there is no case law directly on point. As stated

above, Government Code Section 51.303 as cited by WF, states

what the clerk’s duties are. The Clerk is a Custodian of Records,

Mann, Supra, and as such, has a duty to maintain the records,

provide an explanation as to why they are missing as any other

custodian would do. This naturally requires an investigation. D

merely refers the court to C above so as to not be duplicative in the

argument.

19
 Government Code Section 51.303 provides:

Sec. 51.303. DUTIES AND POWERS. (a) The clerk of a
district court has custody of and shall carefully maintain and
arrange the records relating to or lawfully deposited in the clerk's
office.

(b) The clerk of a district court shall:

(1) record the acts and proceedings of the court;

(2) enter all judgments of the court under the direction
of the judge; and

(3) record all executions issued and the returns on the
executions.

(c) The district clerk shall keep an index of the parties to all
suits filed in the court. The index must list the parties
alphabetically using their full names and must be cross-referenced
to the other parties to the suit. In addition, a reference must be
made opposite each name to the minutes on which is entered the
judgment in the case.

(d) Repealed by Acts 1995, 74th Leg., ch. 641, Sec. 1.05, eff.
Sept. 1, 1995.

(e) The clerk of a district court may:

(1) take the depositions of witnesses; and

(2) perform other duties imposed on the clerk by law.

(f) In addition to the other powers and duties of this section,
a district clerk shall accept applications for protective orders under
Chapter 71, Family Code.

Nowhere in Chapter 51 of the Government code does it give

specific instruction on what to do in case of missing records, nor
20
instructions that discovery must be made before the clerk has to

answer questions, etc. The legislature most likely never

contemplated that the clerk would refuse to exercise its duty as

custodian and provide responses to reasonable questions. This is a

case of first impression. The redress is through a mandamus

proceeding.

Next, WF claims that Koonce did not provide a copy of the

document to which he filed his supplemental petition. This was an

over sight and has been corrected. It is now App. 23 and 24,

respectively, as stated above. The copies are sworn to in

compliance with the rules. WF did not object or move to strike, and

therefore has waived it. Furthermore, the late filing does not harm

WF in any way. In all the confusion, it was inadvertently omitted.

WF claims that Koonce is not entitled to discover whether an

ex part communication took place. This is erroneous.

Rule 2.9: Ex Parte Communications, ABA:

(A) A judge shall not initiate, permit, or consider ex parte
communications, or consider other communications made to the
judge outside the presence of the parties or their lawyers,
concerning a pending* or impending matter,* except as follows:

21
(1) When circumstances require it, ex parte communication for
scheduling, administrative, or emergency purposes, which does not
address substantive matters, is permitted, provided:
(a) the judge reasonably believes that no party will gain a
procedural, substantive, or tactical advantage as a result of the ex
parte communication; and
(b) the judge makes provision promptly to notify all other parties of
the substance of the ex parte communication, and gives the parties
an opportunity to respond.
(2) A judge may obtain the written advice of a disinterested expert
on the law applicable to a proceeding before the judge, if the judge
gives advance notice to the parties of the person to be consulted
and the subject matter of the advice to be solicited, and affords the
parties a reasonable opportunity to object and respond to the notice
and to the advice received.
(3) A judge may consult with court staff and court officials whose
functions are to aid the judge in carrying out the judge’s
adjudicative responsibilities, or with other judges, provided the
judge makes reasonable efforts to avoid receiving factual
information that is not part of the record, and does not abrogate the
responsibility personally to decide the matter.
(4) A judge may, with the consent of the parties, confer separately
with the parties and their lawyers in an effort to settle matters
pending before the judge.
(5) A judge may initiate, permit, or consider any ex parte
communication when expressly authorized by law* to do so.
(B) If a judge inadvertently receives an unauthorized ex parte
communication bearing upon the substance of a matter, the judge
shall make provision promptly to notify the parties of the substance
of the communication and provide the parties with an opportunity
to respond.
(C) A judge shall not investigate facts in a matter independently,
and shall consider only the evidence presented and any facts that
may properly be judicially noticed.

22
(D) A judge shall make reasonable efforts, including providing
appropriate supervision, to ensure that this Rule is not violated by
court staff, court officials, and others subject to the judge’s
direction and control.

Texas Code of Judicial Conduct:

Canon 3.B.(10)

A judge shall abstain from public comment about a pending or
impending proceeding which may come before the judge's court in a
manner which suggests to a reasonable person the judge's probable
decision in a particular case. The judge shall require similar
abstention on the part of court personnel subject to the judge's
direction and control. This section does not prohibit judges from
making public statements in the course of their official duties or
from explaining for public information the procedures of the court.
This section does not apply to proceedings in which the judge is a
litigant in a personal capacity.

Canon 3.B.(11)

A judge shall not disclose or use, for any purpose unrelated to
judicial duties, nonpublic information acquired in a judicial
capacity. The discussions, votes, positions taken, and writings of
appellate judges and court personnel about causes are confidences
of the court and shall be revealed only through a court's judgment,
a written opinion or in accordance with Supreme Court guidelines
for a court approved history project.

Canon 8.B.1.

"Shall" or "shall not" denotes binding obligations the violation of
which can result in disciplinary action.

B. Duty of the Judiciary

as quoted from In re J.B.K 931 S.W.2d 581 (Tex. App. - El Paso
1996, n.w.h.)
23
“Individual judges are charged with the task of adjudicating claims

in a manner that protects the rights of all parties to the litigation. It

is for that reason that ex parte communications between parties to

pending litigation and members of the judiciary tasked to resolve

those claims undermine the public's right to evaluate whether

justice is being done. Ex parte communications frustrate the

judiciary's responsibility to promote and provide fair and equal

treatment to all parties. See In re Thoma, 873 S.W.2d at 496. It is

perhaps for that reason, among others, that the Texas Code of

Judicial Conduct provides that, except as authorized by law, a

judge shall not initiate, permit, or consider ex parte or other private

communications made to the judge outside the presence of the

parties. Further, a judge shall require compliance with this

subsection by court personnel subject to the judge's direction and

control. Texas Supreme Court, Code of Judicial Conduct, Canon

3B(8), Amended to Sept. 1, 1994, reprinted at Tex. Gov't Code Ann.

tit. 2, subtit. G, app. B (Vernon 1994 and Supp. 1996)."

24
 Canon 3A(5) provides that a judge shall not permit or consider

improper ex parte or other private communications concerning the

merits of a pending or impending judicial proceeding. (Canon 10

provides that the word "shall" when used in the Code means

compulsion.) Judges may comply with Canon 3A(5) by doing the

following: 1) Preserve the original letter by delivering it to the court

clerk to be file marked and kept in the clerk's file. 2) Send a copy of

the letter to all opposing counsel and pro se litigants. 3) Read the

letter to determine if it is proper or improper ex parte

communication; if improper, the judge should send a letter to the

communicant, with a copy of the judge’s letter to all opposing

counsel and pro se litigants, stating that the letter was an improper

ex parte communication, that such communication should cease,

that the judge will take no action whatsoever in response to the

letter, and that a copy of the letter has been sent to all opposing

counsel and pro se litigants.

Canon 3A (4) provides that a judge shall accord to every person who

is legally interested in a proceeding the right to be heard according

to law. Consideration of an ex parte communication would be

25
inconsistent with Canon 3A(4), because it would not accord to other

parties fair notice of the content of the communication, and it would

not accord to other parties an opportunity to respond.

Canon 3 provides that the judicial duties of a judge take precedence

over all the judge's other activities. A judge's consideration of a

controversy that is not brought before the court in the manner

provided by law would be inconsistent with the judicial duty to

determine "cases" and "controversies (Art. 3, Constitution of the

United States). A judge has no authority or jurisdiction to consider;

or to take any action concerning, out-of-court controversies. A

judge's consideration of a controversy that is not properly before the

court could give the appearance of inappropriate action under color

of judicial authority, which would tend to diminish public

confidence in the independence and impartiality of the judiciary,

rather than promote it as Canon 1 and Canon 2 require a judge to

do.

Finally, a judge should try to minimize the number of cases in

which the judge is disqualified. If a judge permits a communication

to the judge concerning any matter that may be the subject of a

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judicial proceeding, that could necessitate disqualification or

recusal.

In Stone v. FDIC, 179 F.3d. 1368, 1376 COA, Federal Circuit

1999, 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 guarantee of

notice (both of the charges and of the employer's evidence) and

the opportunity to respond. When deciding officials receive

such ex parte communications, employees are no longer on notice

of the reasons for their dismissal and/or the evidence relied upon

by the agency. Procedural due process guarantees are not met if the

employee has notice only of certain charges or portions of the

evidence and the deciding official considers new and material

information.[4] It is constitutionally impermissible to allow a

deciding official to receive additional material information that may

undermine the objectivity required to protect the fairness of the

process. Our system is premised on the procedural fairness at each

stage of the removal proceedings. An employee is entitled to a

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certain amount of due process rights at each stage and, when these

rights are undermined, the employee is entitled to relief regardless

of the stage of the proceedings.”

Canon three also addresses the judge's duty of impartiality

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

parte communications concerning the merits of a pending or

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

communication is one that involves fewer than all parties who are

legally entitled to be present during the discussion of any matter

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

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

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

heard and with the principle of maintaining an impartial judiciary.

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

Antonio 2007, pet. ref'd).

WF attempts to undermine the importance of discovering

whether a suspicious conduct was the result of an ex parte

communication and ultimately the product of reversal of a judge’s

decision of an important issue. When an order or proceeding is

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tainted, it erodes public confidences in our judiciary systems as

being fair and impartial. It impedes justice, and denies a party

their due process rights to notification and opportunity to be heard.

In this case, where the trial judge admitted that the case in

controversy was extinguished in its entirety by a nonsuit, App.21,

refuses to sign an order dismissing the case, the docket

mysteriously changes from dismissed final to active without a notice

or a hearing, no record of any minutes being entered in compliance

with the nonsuit rules, and then suddenly changes it position

stating Koonce included another party (WF Trustee) in his petition

after clearly stating several times that he did not, and the trial court

claiming that Koonce did not dismiss WF, when in fact he did and

which was not included at all in the pleading, documents in the

clerks file were missing after Koonce pointed out there were two

different sets of assignments, calls into question whether or not this

was a product of ex parte hearing, corruption or something else. At

the end of the day, Koonce needs to get to the bottom of it. It is

relevant that the disposition of the case was changed AFTER the

court’s plenary powers ended. The email exchanges between the

clerks office and Ms. Reule who was requesting clarification to

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understand why the docket was mysteriously changed, without

notice or hearing, who authorized the change, and what happened

to documents, and the clerk’s outright refusal to respond, makes

the entire matter suspect of something more insidious going on.

Why would WF object? What are WF and its counsel trying to hide?

It seems like WF counsel would likewise want to know why the

disposition of the case was changed, and why records are missing.

The fact that they oppose the request, and have no authority

whatsoever to support their claim that Koonce must conduct

discovery on the clerk, makes you wonder what role WF played in

all of it. There’s never been a recorded case that Koonce can find

where something even remotely close has happened in other courts.

It just happened against a pro se litigant; WF, its attorneys, and the

trial court, and Clerk of Court are trying to take advantage of him.

WF’s fraud manual also demonstrates that it has no problem with

perjury, and with creating fraudulent documents, forging

signatures, and filing them with the court. An ex parte

communication with the court is not beyond WF.

WF’s statements about Reule being a nonparty and not a

licensed attorney are irrelevant. There’s no law that prohibits Reule

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from asking questions about how public documents were changed

and the disposition of missing documents which appeared to be

destroyed immediately after Koonce brought to the trial court’s

attention and the federal court’s attention that the assignments

were completely different than those previously filed, which

supports Koonce’s fraud claims and fraud upon the court. Any

member of the public can ask the same questions. They do not

have to have any interest in the case.

WF’s claims are nonsense, and this Court has a duty to

ensure that justice is served, it was fair, untainted, and when

suspicious run so high, this Court is required in the interest of

justice to issue a Writ of Mandamus requiring the trial court to

provide answers as well as the clerk. According to the trial court’s

clerk, there are no minutes. All of this is highly suspicious and

contrary to Rules of Civil Procedure and state statutes.

PRAYER

Koonce prays that this court issue its writ of mandamus and

instructs both the District clerk, and the trial judge to provide the

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answers requested, produce the missing documents, and for such

other and further relief as the court deems just and proper.

Dated: December 14, 2015 Respectfully submitted,
Word count: 5,282

/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; on this 14th day of December 2015:

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

/s/ Ernest Ray Koonce

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