Donald Kilpatrick, Individually and as Assignee of Causes of Action of Jeremy Dicks v. Eric L. Estes, Adriana Potoczniak and Duetsche Bank National Trust Company as Trustee for Soundview Home Loan Trust 2006-Opt5 Asset-Backed Certificates Series 2006-Opt5, Homeward Residential, Inc F/K/A American Home Mortgage Servicing, Inc.

ACCEPTED
14-16-00502-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
1/24/2017 7:29:05 PM
CHRISTOPHER PRINE
CLERK

No. 14-16-00502-CV
FILED IN
14th COURT OF APPEALS
HOUSTON, TEXAS
IN THE FOURTEENTH COURT OF APPEALS 1/24/2017 7:29:05 PM
CHRISTOPHER A. PRINE
HOUSTON, TEXAS Clerk

DONALD KILPATRICK, INDIVIDUALLY AND AS ASSIGNEE OF
CAUSES OF ACTION OF JEREMY DICKS,

APPELLANT

v.

ERIC L. ESTES AND DUETSCHE BANK NATIONAL TRUST
COMPANY, ET AL,

APPELLEES’

APPELLANT'S AMENDED MOTION TO STRIKE
APPELLEES’ OBJECTION
TO APPELLANT’S THIRD EXTENSION REQUEST TO
FILE APPELLANT’S BRIEF AS THERE EXISTS NO
APPELLANT’S THIRD EXTENSION REQUEST TO FILE
APPELLANT’S BRIEF AND RESPONSE THERETO

TO THE HONORABLE FOURTEENTH COURT OF APPEALS:
Pursuant to inter alia Tex. R. App. P. 10.1; 10.5(b)(1)(c); 10.2;
10.1(a)(5); Appellant Donald Kilpatrick, files this Appellant's Amended
 2

Motion to Strike Appellees’ Objection To Appellant’s “Third?” Extension
Request To File Appellant’s Brief As There Exists No Appellant’s “Third”
Extension Request To File Appellant’s Brief and Response Thereto;
appellees’ continue to falsely misrepresent facts and Motions that do not
exist before this Honorable Court, accordingly appellant does respectfully
show This Court as follows:
Pursuant to Tex. R. App. P. 9.7 appellant adopts by reference
Appellant's Second Motion for Extension of Time to File Appellant's Brief
Due January 17, 2016 filed in 14th Court of Appeals Houston, Texas as if
set out word for word here at this place.
1. While it is not surprising appellee continues to misrepresent facts and
laws; it is wholly surprising appellee would attempt to do it to The
Fourteenth Court Of Appeals!
Appellee not only misrepresents to This Court "Objection to
Appellant's Third Extension Request" to file Appellant's Brief but further
misrepresents to This Court that appellant's Brief was due on September 22,
2016 in which appellant filed his First Extension Request to file Brief “due”
September 22, 2016 on September 19, 2016, which was and is false; and
appellee’s attempt to hide and secret from, or plain disregard for This
Honorable Court's Orders and Notices delivered to appellee as result of
appellee’s Filed Docketing Statement, filed by this same appellee, asking for
Mediation August 31, 2015; copy of which is attached hereto and Marked
“App. 1" for This Court’s convenience.
To which reliance on appellee’s request for mediation, appellant in its
Docketing Statement at section 3 No. 1 stated ".........appellant would
welcome mediation."
2. Appellant believed the 2 Docketing Statements forged and are an
 3

"agreement" albeit signed by separate documents, to Mediate this case. By
that reliance in both parties signed documents, that both parties desired
mediation; was understandably relied upon by The Court which issued
Abatement Order Filed September 8, 2016, copy attached hereto marked
“App. 2" for This Court's convenience.
To which appellant was in process for submitting 3 mediators for
submission to Court and Appellee, when suddenly and without warning
appellee less than a week from This Court’s Abatement Order to allow
Mediation requested by appellee and Granted by The Court; that same
appellee filed Objection to Mediation" after representing and requesting to
The Court appellee’s desire for Mediation. “App. 1.” Notwithstanding
appellee as trustee never obtained title or deed due to Trustee’s failure to
follow statutory prerequisites for foreclosure and sale. Consequently
trustee’s and appellee’s deed is Void, and without effect.
3. Unpropitiously, appellee’s know this, therefore: appellee's "Objection
to Mediation."
4. Unfortunately, appellant due to lack of timely notice per Tex. R. Civ.
P. 306a(3) in the 55th District Court to which the District Clerk became
aware, resulting in late notice in the 55th District Court resulting in exigent
circumstances regarding this appellee's co—defendants’ together with a Tex.
R. Civ. P. 21(f)(6) Technical Failure, similarly recognized in Tex. R. App. P.
9.2(5)(6) requiring all appropriate relief from the Court to ensure matters be
preserved for Appellant Review. Albeit, those procedures required
extraordinary time and hearings before 55th District Court; thus taking
appropriate time to perfect appeal of remaining (4 or 5 codefendants’
below), and prevented appellant from timely controverting appellee’s
objection to mediation as This Court granted appellee’s objection to
 4

mediation October 25, 2016: (Note: to which appellee initiated and
represented and requested case be set for mediation).
5. Appellee again continues to misstate facts of This Court's record,
when appellee claims brief originally due on September 22, 2016.
"Appellant filed his first extension request which was granted. There was no
reason for appellant to file an extension of time to file appellant's brief due
on September 22, 2016. As result of appellee’s initiation For Mediation
“App. 1."
This Court Granted appellee’s request For Mediation “App. 1."
In consideration thereof This Court issued Abatement Order filed
September 8, 2016 giving 60 days to mediate this case: “App. 2.”
Should appellee “truly” desire to pursue this Appeal he did not do so
in an expedient manner rather than notice This Court for Mediation, then
when Granted attack that Grant with filing Objection to Mediation to This
Court’s Sustaining appellee’s request with result of delaying the pursuit of
Appeal for near 60 days.
Abatement of case due to appellee’s initiation of Mediation “App. 1”
was reinstated October 25, 2016: Setting date for appellant's brief due
November 30, 2016 to which appellant filed Appellant’s First Motion for
Extension of Time to File Brief. Which was Granted; Appellant's motion to
extend time to file their brief in the above cause, time extended to and
including December 30, 2016.
5a. Due to inter alia an "emergency" befalling the Official Reporter and
despite This Court's Orders and admonitions the last of which was Order
filed, January 13, 2017 this court Ordered the official court reporter, to file
the record in this appeal within thirty days of the date of this order.
Appellant needs and is entitled to a full reporter's record in this
 5

appeal.
Appellant's Second Motion For Extension Of Time To File Appellant's
Brief Due January 17, 2016 is the last motion for extension of time to file
appellant's brief; notwithstanding appellee's false claim that there exists an
appellant's “Third” extension request to file brief.
Due to the lack of reporter’s record squared with Orders to the official
court reporter who has yet to file reporter’s record and pursuant to Tex. R.
App. P. 34.1 "Even if more than one notice of appeal is filed, there should
be only one appellate record in a case.” This Court has Ordered reporter’s
record be filed 30 days from January 13, 2017.
7. Appellee once again claims "appellant failed to confer with
foreclosure appellees’ prior to filing his "Third" Extension Request to file
his brief.
Reason being There never has been an Appellant's "Third" Motion
for Extension of Time to File Appellant's Brief; hence there could be no
conference thereon: believing, that simply is more, of appellee's and Ms.
Galeoto's frivolous without merit allegations to enhance or attempt to serve
that which is unjust as just.
That notwithstanding Appellant's First Motion for Extension of Time
to File Appellant's's Brief Due November, 30, 2016, appellant, at page 5
related that they had conferred with opposing appearing counsel, Brett W.
Schouest, and he related though having entered an appearance in this
Appeal, that he was not familiar with the case, and related that appellant
contact Gemma R. Galeoto in Dallas Texas, and do everything through Ms.
Galeoto.
Appellant ultimately did reach Ms. Galeoto in attempt to confer on
appellant’s First Motion to Extend Time To File Brief and attempted to
 6

confer with her; to which at that time Ms. Galeoto spewed forth such
invectives that would make a dock worker at the Port of Houston blush, and
summarily hung up the phone, before appellant could even attempt to cool
her down. Accordingly Ms. Galeoto is in direct violation of Professionalism:
A Lawyer's Mandate a text thereof hangs and is on prominent display In the
Fourteenth Court of Appeals Houston, Texas entrance to That Hallowed
Court.
Though it is doubtful that Dallas Court's display any pretense of
civility or professionalism. For that reason perhaps Ms. Galeoto should be
excused, being in Dallas and all.
Per my direct understanding with Mr. Schouest, that he was not
familiar with the case and to direct all inquiries to Gemma R. Galeoto both
in that conversation and in the future.
Similarly, appellant does not see anything in Tex. R. App. P.
10.1(a)(5) "in civil cases,......be accompanied by a certificate stating that the
filing party conferred, or made a reasonable attempt to confer, with all other
parties about the merits of the motion and whether those parties oppose the
motion. In fact the rule the expressly states be accompanied by a certificate
stating that the filing party conferred, or made a reasonable attempt to
confer, appellant did call, though filled with tribulation, given the previous
invectives, tirade and slamming of the phone by Ms. Galeoto in appellant's
previous attempt to confer, that notwithstanding appellant called Ms.
Galeoto Thursday afternoon January 19, 2016, to confer, there was no
answer, appellant left a voice mail with his name and phone number and the
nature and content of his call, which as yet has not been returned. In fact Ms.
Galeoto has never returned a call to appellant.
8. Appellant likewise believes he served Ms. Galeoto via EfileTexas
 7

"serve."
Appellee claims once again falsely, appellant having had over four
months to acquire the reporters record, disregarding Tex. R. App. P. 34.1
requiring “Even if more than one notice of appeal is filed, there should be
only one appellate record in a case; which applies herein, as it so happens
that includes appellee’s co-defendants’ and their Notices of Appeal, as inter
alia set forth in Appellant's Second Motion For Extension Of Time To File
Appellant's Brief Due January 17, 2016.
While appellee in her objection to appellant's nonexistent "third"
extension to file Brief request, claims failure to confer; yet appellee’s motion
“Objection To Appellant’s Third Extension Request” Contains no Certificate
of Conference, to which there is no such appellant’s third motion to extend
time to file Brief and accordingly no such certificate of conference to to Ms.
Galeoto’s “objection to appellant’s third extension request.” Nor has any
motion filed by Ms. Galeoto to appellant contained a Certificate of
Conference.
Likewise Ms. Galeoto has never called or left a message for appellee
either in trial court or this court in reference to certificate of conference with
appellant herein.
In conclusion appellee claims appellant should pursue their appeal in
an expedient manner or appeal should be dismissed. And goes on to state
further delay is unwarranted and foreclosure appellees are opposed to the
"third Extension Request" (which is nonexistent); appellee’s motion is
completely without merit as attacking a nonexistent objection to a never
filed appellant's third extension request to file Brief, which has never been
filed.
PRAYER
 8

FOR reasons set forth herein appellant Unrepresented party,
respectfully requests that this court grant appellant’s Motion to Strike
Appellees’ Objection To Appellant’s “Third?” Extension Request To File
Appellant’s Brief As There Exists No Appellant’s “Third” Extension
Request To File Appellant’s Brief and Response Thereto as appellee’s
Objection To Appellant’s Third Extension is wholly without merit for the
reason being there is NO THIRD extension request to extend time to file
Appellant’s Brief. And further appellant attempted to confer on each request
for extension of time to file brief heretofore made; notwithstanding there is
no “Third” extension request to file appellant’s Brief; Furthermore appellee
has never returned appellant's phone calls not answered, but message left on
voicemail. Likewise appellant cannot a prepare a cogent and informative
brief without reporters record filed in This Court and Prays This Court strike
or deny appellee's objection to appellant's third extension request to file
Brief which has not been made. Appellee inserted "third" to prejudice
appellant with This Court, not for truth of the matter asserted. Further
appellant prays for all relief to which he may be justly entitled, whether
general or special are in law or in equity.
Respectfully submitted,
/s/ Donald Kilpatrick
Donald Kilpatrick
Plaintiff
In Propria Persona
2723 Triway Lane
Houston, Texas 77043
Gmail: bddek44@gmail.com
Phone: (713) 416-8697

Unrepresented party
 9

Certificate of Service
Appellant certifies that a copy of this motion shall be served on
council for appellees’ via e-mail address: ggaleoto@dykema.com
September 24, 2016

/s/ Donald Kilpatrick
Donald Kilpatrick
 10

ACCEPTED
14-16-00502-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
8/31/2016 4:42:18 PM
CHRISTOPHER PRINE
CLERK

FOURTEENTH COURT OF APPEALS
CIVIL APPEAL MEDIATION DOCKETING STATEMENT

RETURN WITHIN 15 DAYS TO:

CLERK, FOURTEENTH COURT OF APPEALS;
301 FANNIN, ROOM 245; HOUSTON, TEXAS 77002

***For Civil Appeals, see Section V for information about the Pro Bono Program sponsored and
administered by the Pro Bono Committees of the Appellate Practice Sections of the State Bar of Texas and
the Houston Bar Association.

I. General Information:

Appellant(s): Donald Kilpatrick Appellate Cause No.: 14-16-00502-CV

Trial Ct. Cause No.:

Appellee(s): 2015-31821

Deutsche Bank National Trust Company, as Trustee And
for Soundview Home Loan Trust 2006-OPT5;
2015-31821-A (severed matter).
Homeward Residential F/K/A American Home
Mortgage Servicing, Inc. County: Harris

Trial Court: 55th District Court

Other:

II. Timetable:

Appeal stayed by bankruptcy. Date bankruptcy filed: N/A

List: name of bankruptcy court:

bankruptcy case number:

style of bankruptcy filing:

App. 1
 11

III. Jurisdiction:

Will  you  challenge  this  court’s  
jurisdiction? No  Yes 

IV. Indigency Of Party (TRAP 32.1(k)): (Attach file-stamped copy of affidavit)

Filed
Event Date N/A
Check as appropriate

Affidavit filed No  Yes  N/A

Contest filed No  Yes  N/A

Date ruling on contest due: N/A

Ruling on contest:
N/A
Sustained  Overruled 

V. Pro Bono Pilot Program:

The Pro Bono Committees of the Appellate Practice Sections of the State Bar of Texas and the Houston Bar
Association are participating in a Pro Bono Program to place a limited number of civil appeals with appellate
counsel who will represent the appellant/appellee in the appeal before the Fourteenth Court of Appeals.

The Pro Bono Committee is solely responsible for screening and selecting the civil cases for inclusion in the Pilot
Program based upon a number of discretionary criteria, including the financial means of the appellee. If a case is
selected by the Committee, and can be matched with appellate counsel, that counsel will take over representation
of the appellee without charging legal fees. More information regarding this program can be found in the Pro
Bono Pilot Program Pamphlet available  in  paper  form  at  the  Clerk’s  Office  or  on  the  Internet  at  http://www.tex-
app.org and http://www.hba.org/folder-sections/sec-appellate.htm. If your case is selected and matched with a
volunteer lawyer, you will receive a letter from the Pro Bono Pilot Committee within thirty (30) to forty-five (45)
days after submitting this Docketing Statement.

NOTE: There is no guarantee that, if you submit your case for possible inclusion in the Pro Bono
Program, the Pro Bono Committee will select your case and that pro bono counsel can be found to
represent you. Accordingly, you should not forego seeking other counsel to represent you in this
proceeding. By signing your name below, you are authorizing the Pro Bono Committee to transmit
publicly available facts and information about your case, including parties and background, through
selected Internet sites and a Listserv to its pool of volunteer appellate attorneys.

1. Do you want this case to be considered for inclusion in the Pro Bono Pilot Program?

Yes  No 

If  you  answered  “Yes”  to  Question  V.1, then please answer the following questions.

2. Do you authorize the Pro Bono Committee to contact your trial counsel of record in this matter to
answer questions the committee may have regarding the appeal? Please note that any such conversations would
 12

II. Perfection Of Appeal And Jurisdiction (TRAP 32.1(b), (c),
(g), (j)):
Date order or judgment Date notice of appeal filed in
signed: trial court:
(Attach a signed copy, if (Attach file-stamped copy; if
possible) mailed to the trial court clerk,
April 4, 2016 also give the date of mailing)
Amended Notice of Appeal;
June 21, 2016: File Stamped
Copy Attached.
What type of judgment? Interlocutory appeal of
(e.g., jury trial, bench trial, appealable order:
summary judgment, directed Yes  No ✔
verdict, other (specify)) (Please specify statutory or
summary judgment other basis on which
interlocutory order is
appealable) (See TRAP 28)
If money judgment, what was
the amount? Costs.

Actual damages: Accelerated appeal (See TRAP
28):
Punitive (or similar) damages: Yes  No ✔
(Please specify statutory or
Attorneys’ fees (trial): other basis on which appeal is
accelerated)
Attorneys’ fees (appellate):

Other (specify): Costs to Appeal that receives
Appellant precedence, preference, or
priority under statute or rule?
Yes  No ✔
(Please specify statutory or
other basis for such status)

3 Form 4
 13

III. Actions Extending Time To Perfect Appeal (TRAP 32.1(d)):

Filed
Action Check as Date Filed
appropriate
Motion for New Trial No  Yes ✔
Motion to Modify
No  Yes ✔
Judgment
Request for Findings of
Fact and Conclusions No ✔ Yes 
of Law
Motion to Reinstate No  Yes ✔
Motion under TRCP
No ✔ Yes 
306a
Plea to the
Other (specify): No  Yes ✔
Jurisdiction
IV. Indigency Of Party (TRAP 32.1(k)): (Attach file-stamped
copy of affidavit)
Filed
Event Check as Date N/A
appropriate
Affidavit filed No  Yes 
Contest filed No  Yes 
Date ruling on contest
due:
Ruling on contest:
Sustained 
Overruled 
V. Bankruptcy (TRAP 8):
Will the appeal be stayed by bankruptcy? Date
bankruptcy filed?
Name of bankruptcy court: Bankruptcy Case
No.:
Style of bankruptcy case:
VI. Trial Court And Record (TRAP 32.1(c), (h), (i)):
Court: County: Trial Court Docket

4 Form 4
 14

55th District Court Harris Number
(Cause No.):
2015-31821A
Severed
from 2015-31821

Trial Judge (who tried or Court Clerk (district clerk):
disposed of case): Daniel Flores
Jeff Shadwick Telephone Number: (713) 368-
Telephone Number: (713) 6055
368-6055 (include area code)
(include area code) Telecopy Number: Not Listed
Telecopy Number: Not Listed (include area code)
(include area code) Address: Harris County Civil
Address: Harris County Civil Courthouse, 201 Caroline, 9th
Courthouse, 201 Caroline, 9th Floor Houston, Texas 77002-
Floor Houston, Texas 77002- 2031
2031

Clerk’s Record Sworn copy Will request ✓ Was
Yes ✓ for (Note: No requested
Filed: accelerated request required on: To
August 23, 2016 appeal under TRAP Supplement
Yes  34.5(a), (b))
(See TRAP
28.3)
Court Reporter or Court Recorder: Court Reporter or
Court Recorder:
Ms. Gina Wilburn
Telephone Number: Telephone Number:
(include area code) (include area code)
713-368-6056
Telecopy Number: Telecopy Number:
(include area code) (include area code)
Address: Address:

5 Form 4
 15

Abatement Order filed September 8, 2016

In The

Fourteenth Court of Appeals
____________

NO. 14-16-00502-CV
____________

DONALD KILPATRICK, INDIVIDUALLY AND AS ASSIGNEE OF
CAUSES OF ACTION OF JEREMY DICKS, Appellant

V.

ERIC L. ESTES, ADRIANA POTOCZNIAK, ET AL AND DUETSCHE
BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR
SOUNDVIEW HOME LOAN TRUST 2006-OPT5 ASSET-BACKED
CERTIFICATES SERIES 2006-OPT5, HOMEWARD RESIDENTIAL,
INC F/K/A AMERICAN HOME MORTGAGE SERVICING, INC.,
Appellees

On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause No. 2015-31821A

ABATEMENT ORDER

We have determined that this case is appropriate for referral to mediation, an
alternative dispute resolution process. See Tex. Civ. Prac. & Rem. Code §§
154.021—.073. Mediation is a forum in which an impartial person, the mediator,
facilitates communication between parties to promote reconciliation or settlement.

1

App. 2
 16

Id.§ 154.023(a). Any communication relating to the subject matter of the appeal
made by a participant in the mediation proceeding is confidential. See Tex. Civ.
Prac. & Rem. Code § 154.053. After mediation, the parties shall advise the court
whether the case settled, or whether any further negotiation efforts are planned.

The court ORDERS the appeal ABATED for a period of sixty days and refers
the underlying dispute to mediation. Any party may file a written objection to this
order with the clerk of this court within 10 days of the date of this order. See Tex.
Civ. Prac. & Rem. Code § 154.022. If this court finds that there is a reasonable basis
for the objection, the objection shall be sustained and the appeal reinstated on this
court’s  active  docket.    See id.

The court ORDERS that the mediation be held within 60 days of the date of
this order. The court ORDERS that all parties or their representatives with full
settlement authority shall attend the mediation process, with their counsel of record.
The court FURTHER ORDERS that within 48 hours of completion of the
mediation, the parties shall advise the court in writing whether the case settled.

If mediation fully resolves the issues in the case, the court ORDERS the
parties to file a motion to dismiss the appeal, other dispositive motion, or a motion
for additional time to file the dispositive motion, within 10 days of the conclusion
of the mediation.

The court ORDERS the appellate timetable in this case suspended for 60 days
from the date of this order.

The appeal is ABATED, treated as a closed case, and removed from this
court’s active docket for a period of sixty days. The appeal will be reinstated on this
court’s active docket after sixty days. Any party may file a motion stating grounds
for reinstating the appeal before the end of the sixty-day period.

Any party may also file a motion to dismiss the appeal or other dispositive
motion at any time. Any party may file a motion to extend the abatement period for
2
 17

completion of mediation or to finalize a settlement.

PER CURIAM

3