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

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ACCEPTED 01-15-00228-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 12/28/2015 12:00:00 AM CHRISTOPHER PRINE CLERK No. 01-15-00440-CV ________________________________________________________________ FILED IN IN THE FIRST DISTRICT COURT OF APPEALS OFHOUSTON, 1st TEXAS COURT OF APPEALS TEXAS ________________________________________________________________ 12/28/2015 11:09:00 AM CHRISTOPHER A. PRINE Clerk IN RE ERNEST R. KOONCE, RELATOR ________________________________________________________________ Original Proceeding From the 127th Judicial District Court of Harris County Cause No. 2010-64752 __________________________________________________________________ REQUEST FOR THE COURT TO TAKE JUDICIAL NOTICE OF THE TRIAL COURT’S NOTICE OF FINAL DISPOSITION OF THE CASE 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 __________________________________________________________________ REQUEST FOR THE COURT TO TAKE JUDICIAL NOTICE OF THE TRIAL COURT’S NOTICE OF FINAL DISPOSITION OF THE CASE ERNEST R. KOONCE RELATOR, Pro Se 15938 Fleetwood Oaks Drive Houston, Texas 77079 Tel: (832) 434-3183 Fax: (832) 328-7171 rayk469@gmail.com Page 2 of 7 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 Page 3 of 7 TO THE HONORABLE COURT OF APPEALS OF TEXAS: Ernest R. Koonce, Relator, and those similarly situated, respectfully submits this request for the Court to take judicial notice of the trial court’s notice of final disposition of this case. Appendix “A1” is a true and correct, certified copy of Exhibit “A1” to Koonce’s response to Wells Fargo’s plea in abatement filed in the 295th Judicial Court of Harris County (“Third Lawsuit”), “Judge Baker’s” court under cause no. 2010-79323. The Court should note this is a postcard from the court showing the case was nonsuited and final disposition. There’s no indication of any partial nonsuit, it was a notice the entire case had been dismissed. Although it might not be as clear as it should have been, WF’s position at the 8/12/12 hearing is inconsistent with its current position. At the 8/12/12 hearing (See RR, P.3-4), WF claimed it had a right to file the late cross-complaint because it was done during the court’s plenary power. This is inconsistent with its current claims that WF Trust is a separate entity and wasn’t nonsuited. WF changes positions in its pursuit of vexatious litigation as often as a new mother changes diapers, and whenever it suits them, just to get an unfair advantage and take advantage of Page 4 of 7 a pro se litigant. This type of conduct, if tolerated, breeds disrespect for and threatens the integrity of our judicial system. Likewise with WF admittedly filing multiple lawsuits on the same cause of action. These changes in position and intentional delays by the trial court and WF have impaired Koonce’s rights. The trial court dismissed the case in its entirety, and then months or years later, decided to reinstate it without notice, without a hearing and without any jurisdiction to do so. This substantially impaired Koonce’s rights to the nonsuit and dismissal of the entire action. Lastly, Koonce asks this Court to take judicial notice of Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). It is "[a]n elementary and fundamental requirement of due process" that notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). "The notice must be of such nature as reasonably to convey the required information and it must afford a reasonable time for those interested to make their appearance." Id., [Internal Page 5 of 7 citations omitted]. "[W]hen notice is a person's due, process which is a mere gesture is not due process." Dated: December 27, 2015 Word Count: 445 Respectfully submitted, /s/ Ernest Ray Koonce Ernest Ray Koonce CERTIFICATE OF SERVICE In accordance with Texas Rules of Appellate Procedure, Rule 9.5, I hereby certify that a true and correct copy of the above document was delivered via E-Filing to opposing counsel. /s/ Ernest Ray Koonce Ernest Ray Koonce Page 6 of 7 APPENDIX A1 Page 7 of 7