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