Wells Fargo Bank, N.A., as Trustee for Securitized Asset Backed Receivables L.L.C. 2005-FR4 Mortgage Pass-Through Certificates Series 2005-FR4 v. Kingman Holdings, L.L.C., as Trustee of the Manderly Place 8118 Land Trust
ACCEPTED
04-15-00126-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
5/20/2015 3:46:58 PM
KEITH HOTTLE
CLERK
No.
No. 04-15-00126-CV
04-15-00126-CV
In the
3in the Court of ZippeaI5
Court of Appeals 4th COURT FILED IN
OF APPEALS
SAN ANTONIO, TEXAS
for the
for tjjeFourth
jratirtbJudicial
YubitiatDistrict
s i5trittofofTexas
1exa5
5/20/2015 3:46:58 PM
at San Zintortio
at &an Antonio KEITH E. HOTTLE
Clerk
WELLS FARGO BANK, N.A.,
as Trustee for Securitized Asset Backed Receivables L.L.C. 2005-FR4
Mortgage Pass-Through Certificates Series 2005-FR4,
Appellant,
v.
KINGMAN HOLDINGS, L.L.C.,
as Trustee of the Manderly Place 8118 Land Trust,
Appellee.
Appeal from the 73rd Judicial District Court
Bexar County, Texas
Cause Number 2014-CI-17188
APPELLANT’S UNOPPOSED MOTION TO DISMISS
APPELLANT'S
TO THE HONORABLE COURT OF APPEALS:
Appellant Wells Fargo Bank, N.A., as Trustee for Securitized Asset Backed
Receivables
Receivables L.L.C. 2005-FR4 Mortgage
L.L.C. 2005-FR4 Mortgage Pass-Through
Pass-Through Certificates
Certificates Series
Series 2005-
(“Appellant”) respectfully
FR4 ("Appellant") respectfully moves
moves the Court to
to dismiss
dismiss the
the above-captioned
above-captioned
Appellee does
appeal. Appellee does not
not oppose this motion.
1. This is an
This an appeal
appeal from
from aaJanuary
January 21,
21,2015
2015no-answer
no-answer default
default
judgment. On
judgment. On February
February 20,
20, 2015,
2015, Appellant
Appellant filed a motion
motion for new trial with the
APPELLANT'S
APPELLANT’S UNOPPOSED MOTION
UNOPPOSED MOTION TO D
DISMISS
ISMISS PAGE
PAGE 1
court. However,
trial court. However, the
the motion
motion for
for new
new trial
trial was
was inadvertently
inadvertently filed under the
wrong cause number. Therefore,
Therefore, out
out of
of an
an abundance
abundance of
of caution,
caution, Appellant filed a
notice of appeal
notice appeal in the trial
trial court
court on
on March
March 6,
6, 2015,
2015, and,
and, concurrently
concurrently with its
notice of appeal,
notice appeal, Appellant
Appellant filed
filed with
with this
this Court
Court aa motion
motion to extend
extend time
time to file
notice of appeal.
2. On March 20, 2015, the Court denied as moot Appellant’s
Appellant's motion to
extend time to file its notice of appeal “because
"because the motion for new trial was proper
and timely filed, making the notice of appeal timely as well.”
well."
3.
3. Thereafter, on
Thereafter, on April
April 1, 2015, the
1, 2015, the trial
trial court
court granted
granted Appellant's
Appellant’s
Motion for New Trial and entered an order reinstating the case. See Exhibit 1-A.
4. light of
In light of the
the trial
trial court's
court’s order
order granting
granting aa new
new trial,
trial, Appellant's
Appellant’s
appeal challenging
appeal challenging the
the January
January 21,
21, 2015
2015 default
default judgment
judgment isis moot. Accordingly,
moot. Accordingly,
Appellate Procedure
pursuant to Texas Rule of Appellate Procedure 42.1(a)(1), Appellant requests that
the Court enter an order dismissing this appeal.
PRAYER
WHEREFORE, Appellant
WHEREFORE, Appellantrequests
requeststhat
thatthe
the Court
Court grant
grant this motion and
this motion
dismiss this
dismiss this appeal. Appellant prays
appeal. Appellant prays for such other
for such other relief
relief to which it may be
to which
entitled in law or in equity.
APPELLANT’S UNOPPOSED
APPELLANT'S UNOPPOSED MOTION TO D
MOTION DISMISS
ISMISS PAGE 2
PAGE
Respectfully submitted,
LOCKE LORD LLP
B. David
david L. Foster
State Bar No. 24031555
John W. Ellis
State Bar No. 24078473
600 Congress Ave., Suite 2200
Austin, Texas 78701
(512) 305-4700
(512) 305-4800 (Facsimile)
dfoster@lockelord.com
jellis@lockelord.com
Thomas G. Yoxall
State Bar No. 00785304
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
(214) 740-8000
(214) 740-8800 (Facsimile)
tyoxall@lockelord.com
tyoxall@lockelord.corn
Attorneys for Appellant Wells Fargo
Bank, N.A., as Trustee
NA., as Trustee for Securitized
Asset Backed Receivables L.L.C. 2005-
FR4 Mortgage Pass-Through
Certificates Series 2005-FR4
APPELLANT’S UNOPPOSED
APPELLANT'S UNOPPOSED MOTION TO D
MOTION DISMISS
ISMISS PAGE 3
PAGE
CERTIFICATE OF CONFERENCE
conferred via email with counsel
I hereby certify that I conferred counsel for Appellee,
Appellee, Justin
Nichols, on
Nichols, May 20,
on May 20, 2015,
2015, regarding
regarding this
this motion,
motion, and
and counsel
counsel for
for Appellee
Appellee
confirmed that Appellee is unopposed to this motion.
Counsel
0 sel for Appellant
i
CERTIFICATE OF SERVICE
I hereby certify that on the 20th day of May 2015, a true and correct copy of
foregoing Motion
the foregoing Motion waswas served
served via
viae-service
e-servicethrough
throughefile.txcourts.gov
efile.txcourts.gov on
on
Appellee through counsel of record, listed below:
Justin P. Nichols
Justin D. Niedens
The Nichols Law Firm, P.L.L.C.
115 E. Travis Street, Suite 1740
San Antonio, Texas 78205
(210) 354-2300 Telephone
(800) 761-5782 Facsimile
justin@thenicholslawfirm.com
Attorneys for Appellee
Counsel for Appellant
APPELLANT’S UNOPPOSED
APPELLANT'S UNOPPOSED MOTION TO D
MOTION DISMISS
ISMISS PAGE 4
PAGE
Exhibit 1
DECLARATION OF
DECLARATION OFJJOHN
OHN W.
W. E
ELLIS
LLIS
_____________________________________
STATE OF TEXAS §
§
COUNTY OF TRAVIS §
1.
1. My name is John W. Ellis. II am
am over
over twenty-one
twenty-one years of age and fully
competent
competent to
to give the testimony
testimony in this declaration,
declaration, and
and I would so testify if called
upon to do so in a court of law. IIhave
havepersonal
personal knowledge
knowledge of
of all
all facts
facts stated herein,
and they are all true and correct.
2.
2. I am an associate
associate in the Litigation
Litigation Department
Departmentof
ofLocke
LockeLord
LordLLP.
LLP. I
am one
am one of
of the
theattorneys
attorneys representing
representing Wells
Wells Fargo
Fargo Bank,
Bank, N.A.,
N.A., as Trustee
Trustee for
for
Securitized
Securitized Asset Receivables L.L.C.
Asset Backed Receivables L.L.C. 2005-FR4
2005-FR4 Mortgage
Mortgage Pass-Through
Pass-Through
Certificates
Certificates Series
Series 2005-FR4
2005-FR4 (“Wells
("Wells Fargo”) case numbered
Fargo") in the case numbered 2014-CI-17188
2014-CI-17188
and styled Kingman Holdings, L.L.C., as Trustee of the Manderly Place 8118 Land
Trust
Trust v. Wells Fargo
v. Wells Fargo Bank,
Bank, NA.,
N.A., asasTrustee
Trusteefor
forSecuritized
Securitized Asset
Asset Backed
Backed
Receivables, L.L.C.
Receivables, 2005-FR4 Mortgage
L.L.C. 2005-FR4 Mortgage Pass-Through
Pass-Through Certificates
Certificates Series
Series 2005-
FR4, and Fremont Reorganizing Corporation f/k/a Fremont Investment & Loan (the
“Trial Court Case").
"Trial Case”).
3.
3. I have reviewed the document attached to this Declaration as Exhibit
1-A. The
1-A. Thedocument
document attached
attached to this
this Declaration
Declaration as
as Exhibit
Exhibit 1-A
1-A is
is a true
true and
and
correct copy of the Order Granting Motion for New Trial signed and entered in the
Trial Court Case on April 1, 2015.
1
JURAT
My name is John W. Ellis, my date of birth is December 2, 1983, and my
address is Locke Lord LLP, 600 Congress Avenue, Suite 2200, Austin, Texas
78701, U.S.A. I declare under penalty of perjury that the foregoing is true and
correct.
Executed in Travis County, State of Texas, on the 20th day of May, 2015.
2
Exhibit 1-A
CAUSE NO. 2014-CI-17188
KINGMAN HOLDINGS, L.L.C., as IN THE DISTRICT COURT
Trustee of the MANDERLY PLACE 8118
LAND TRUST,
Plaintiff
v.
WELLS FARGO BANK, N.A., as Trustee 73RD JUDICIAL DISTRICT
for SECURITIZED ASSET BACKED
RECEIVABLES L.L.C. 2005-FR4
MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2005-FR4 and
FREMONT REORGANIZING
CORPORATION f/k/a FREMONT
INVESTMENT & LOAN, BEXAR COUNTY, TEXAS
Defendants.
ORDER GRANTING MOTION FOR NEW TRIAL
On this day, came on for hearing the Motion for New Trial filed by iDefendant Wells
Fargo Bank, N.A., as Trustee for Securitized Asset Backed Receivables L.L.C. 2005-FR4
Mortgage Pass-Through Certificates Series 2005-FR4 ("Wells Fargo"). Upoln reviewing the
Motion for New Trial, any response thereto, arguments of counsel, the evidenLe presented, and
all other matters before the Court, the Court is of the opinion that the Motion for New Trial is
meritorious and should be granted.
The Court hereby GRANTS the Motion for New Trial and orders that the Court's Final
Default Judgment signed in this Lawsuit on January 21, 2015 is VACATED AND SET ASIDE.
The Court further orders that the Clerk of the Court REINSTATE this Lawsuit to the
Court's docket for further proceedings and trial.
Signed this day of April, 2015.
DISTRICT JUDGE
ORDER GRANTING MOTION FOR NEW TRIAL PAGE 1 OF 1
575729v.1 0103793/00286