0/1*
FILED IN
COURT OF APPEALS
HOUSTON TFYAS
UN 18 2015
CHRISTOPHER A. PRINE
CLERK
Court of Appeals No. 14-13-0086
1%
Trial Court No. 1030735
5 3&Lin
IN THE
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
DAVID GOAD
Appellant,
VS.
HANCOCK BANK f/k/a Peoples First Community Bank
Appelle.
FIRST AMENDED
APPELLANTS MOTION FOR REHEARING
and
EN BANC CONSIDERATION
INDEX OF AUTHORITIES
CASES
Creussag Aktiengesellschaft v. Coleman, 16 SW3d 110.125
(TexApp-Houston |lst Dist] 2000, pet requested)
GeoChem Tech, 962 S.W.2d at 543; Constr. v. Stephens & son Concrete
Contractors, Inc., 165 S.W.3d 874, 879 (Tex.App.-Texarkana 2005) 4
Bench Co., 133 S.W.3d at 908; Beard, 924 S.W.2d. at 765; Gonzalez v.
Nielson, 770 S.W.2d 99,101 (Tex.App.-Corpus Christi 1989) 5
STATUES AND CODES
TRCP87 4
TRCP87(3)(a) 5
TRCP120a(2) 2,3,6
TRCP120a(3) 2
Texas Business and Commerce Code 5
Texas Business and Commerce Code §71.20.1 5
Tex Bus Org. Code §§9.001 5
Tex Bus Org. Code §§9.004 5
DECLARATION OF DAVD GOAD attached rear
EXHIBITS "A" & "B" attached last
Court of Appeals No. 14-13-00861-CV
Trial Court No. 1030735
IN THE
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
DAVID GOAD
Appellant,
VS.
HANCOCK BANK f/k/a Peoples First Community Bank
Appelle.
FIRST AMENDED
APPELLANTS MOTION FOR REHEARING
and
EN BANC CONSIDERATION
TO THE HONORABLE FOURTEENTH COURT OF APPEALS:
Appellant, David Goad, files this First Amended Appellant's Motion for
Rehearing and En Banc Consideration, because David Goad captioned incorrectly with
defendant rather than appellant, and sited statutes with outdated reference numbers
(Goad's reference books are older), and no index was in place, and additional editing was
needed. Please forgive the writing; medical issues, a stroke, and lack of education are to
blame.
A7 Introduction
1. Appellant is David Goad (Goad); appellee is Hancock Bank.
2. Goad requests an En Banc consideration in these matters. This motion is in
addition (supplemental) to Goad's First Amended Brief of Appellant.
3. Before Goad completed his responses' to the original complaint, he visited the
trial courts website to obtain a phone number for setting dates (Special Appearance &
Venue). The courts website also supported hearings by telephone, a must for Goad given
his health (see 15(c) Special Appearance). Unable to obtain a setting date by telephone,
Goad added to his last paragraph (REQUEST) in his Special Appearance: "For these
reasons, defendant asks the court to set his motion for a Special Appearance hearingand
subsequentlydismiss this case with prejudice. Secondly, in the event the Court does not
dismiss this case to set a hearing to change venue and after that hearing, grant
defendant's motion and transfer this case to Comal County. Defendant also moves to
reserve further attack on plaintiffs pleadings until after the Courts decision now before
it." Later, Goad was informed he would not be allowed appearance by telephone, no
matter Goad's medical issues and/or no driving privileges (three-hour drive to court).
4. Goad's Special Appearance and Motion to Change Venue were served on June 3,
2013. On or about"" July 5, 2013, Goad was provided dates for both hearings (Special
Appearance & Venue). It took Goad THIRTY TWO+ days to obtain two setting dates.
During this time, the plaintiff filed a Motion for Summary Judgment (MSJ). Upon
review of TRCP 120a (2) "Any motion to challenge the jurisdiction provided for herein
shall be heard and determined before a motion to transfer venue or any other plea or
pleading may be heard," & 120a (3) "shall be served seven days before hearing." With
1Special Appearance, Motion to Dismiss, Motion to Change Venue, and General Denial.
" The file that contains all phone conversation notes has been misplaced. It is believed to have been moved
accidentally to another location, a location that Goad cannot visit by the due date of this motion. Goad is
referring to his pleadings for reference purposes.
?
this, Goad did not find it necessary to respond, at that time, to the MSJ. Furthermore, had
the court denied the Special Appearance, a door would open for other relief, including,
but not limited to interlocutory review.
5. On or about July 5, 2013, clerk, Sarah Gray, provided Goad a July 19, 2013
submission hearing date for the Special Appearance. On July 8, 2013, the court received
by mail the setting notice and formally set the date in the courts record (verified again by
phone with the court clerk on June 8, 2015) for said hearing.
6. Goad secured the hearing date and the issue was before the court. However, Judge
Storey refused to rule as if Goad's motions did not exist. In addition, Goad was denied the
only means, in which he could have appeared (by telephone). Therefore, Goad was
denied an opportunity to appear and force the ruling issue upon the record. Each time
Goad called, he was told, "it was on the judges desk" (see brief).
7. Judge Storey was bound by TRCP 120a (2), she could not rule upon any other
issue until the Special Appearance was "heard and determined."
8. Did Judge Storey's failure to follow TRCP 120a (2) make the remaining issues
moot?
9. "Goad's Argument fails" because the cited clause is not a "forum selection clause",
it is a "choice of law clause." Goad does now understand the difference; however, the
affects are very similar. Furthermore, Goad states in paragraph 16 (second #16 paragraph
(error) in the Special Appearance) "The Defendant in his agreement with Peoples First
Community Bank of Florida is bound by Florida law." The Plaintiff began the suit
without recognizing the clause and the court followed. The failure of the plaintiff and
court to apply Florida law should void the courts decision. Goad's objection based on
"forum selection" should have alerted the court, not to mention Goad pleads, "The
Defendant in his agreement with Peoples First Community Bank of Florida is bound by
Florida law." Did Judge Storey read the agreement or any of Goad's pleadings before
reaching her decision? It does not appear so. A 'choice-of-law' clause does not constitute
consent to personal jurisdiction in the designated state. \Creussag Aktiengesellschaft v.
Coleman, 16 SW3d 110.125 (TexApp-Houston |lst Dist] 2000, pet requested).]
10. Plaintiffs failure to respond to Goad's venue challenge is understood. Attorney,
Craig Denum, would have committed more fraud upon the court by providing prima facie
proof of controverted venue facts, a must TRCP 87, GeoChem Tech, 962 S.W.2d at 543;
Constr. v. Stephens & son Concrete Contractors, Inc., 165 S.W.3d 874, 879 (Tex.App.-
-Texarkana 2005).
11. Mr. Denum in his complaint states Hancock Bank, "with its principal place of
business located in Houston. Harris County, Texas." See Exhibit "A" (all exhibits
attached and incorporated herein by reference). The fact Hancock Bank has not filed with
the secretary of state, the Texas banking commission, or the Federal agency for National
Banks, see Exhibit "B", nor have they registered with the Texas Secretary of State or
paid any franchise feesJ, removes Hancock Bank's capacity to bring this suit.
12. With Hancock Bank's "principal place of business in Houston," Texas, it MUST
procure a certificate of authority from the Secretary of State in light of the facts that it is
not "a Bank" chartered in Texas, nor a "National Bank" anywhere in the United States of
America. A national search finds Hancock Bank in Mississippi. Hancock Bank, a
' Goad has previously provided a certificate of proof from the Texas Secretary of State.
National Bank is a fraud. See Tex. Bus. Org. Code §§9.001, 9.004, Business and
Commerce Code, and Business and Commerce Code Section 71.201
13. Furthermore, plaintiff, Flancock Bank, did not object to the Venue hearing date,
although under 45 days. To preserve an objection to lack of sufficient notice (which was
never made, because plaintiff knew a hearing would not take place), the party must file a
written objection and a motion for continuance. Bench Co., 133 S.W.3d at 908; Beard,
924 S.W.2d. at 765; Gonzalez v. Nielson, 770 S.W.2d 99, 101 (Tex.App.-Corpus
Christi 1989). The court must take as true any pleaded venue facts that are specifically
denied by the other party. TRCP 87(3)(a).
14. Here, Goad was locked out of the court. All his pleadings were disregarded,
When one cannot appear in court personally, due to a disability or by telephone he has
been locked out and denied due process. Goad did not want a hearing by submission; he
was forced, because no other avenue was provided.
15. The plaintiff had 46 days notice of the Special Appearance, and 53 days on
Venue. The notice of submission on Special Appearance was timely. The Venue not so,
but no objection was made.
16. The MSJ hearing should not have been conducted by the court until the court
addressed the Special Appearance & Venue hearings. Goad wants to know what
influenced the court not to provide a setting when requested by Goad in writing on June
3, 2013 in his Special Appearance motion. Goad would like to know what influenced the
court not to return his phone calls. Goad would like to know what influenced the court to
ignore everything he submitted. Goad would like to know what influenced the court to
5
refuse a docketing statement. Goad would like to know what influenced the trial court not
to read the plaintiffs complaint (face of complaint was and is defective). Goad would like
to know what influenced this court to not provide an order to obtain that docketing
statement with the numbering sequence (see Request Delay in Review of Briefs and Time
to File an Amended or Supplemental Brief and Motion for order Compelling Trial Court
Action)? Yet, an order for Goad to pay $55.00 was quickly issued when a postcard would
have sufficed!
17. Hancock Bank F/K/A Peoples First Community Bank is another fraud upon the
court. Peoples First Community Bank was closed by the FDIC, not purchased or
otherwise acquired by Hancock. This is why Goad insisted on proof of ownership. Goad
had been down this road before when a bank he had a Visa card with was taken over by
the FDIC. During the banking crisis, it was advised in the news not to pay anyone until
proof of ownership was documented. Hancock steadfastly denied Goad's request for
proof of ownership (see Special Apprearence).
18. Judge Storey was bound by TRCP 120a (2), she could not rule upon any other
issue until the Special Appearance was "heard and determined."
19. Again, this DEFENDANT'S MOTION FOR REHEARING and EN BANC
CONSIDERATION is supplemental and is intended to be incorporated together with the
FIRST AMENDED BRIEF OF APPELLANT.
20. We have plaintiffs complaint, which is severely defective on its face. We have
Hancock Bank in Houston, with no signs of operation by any Texas state agency. We
have a National Bank that does not exist; a National Bank fabricated to distract our
attention away from all state filing requirements and gaining improper venue. We have a
trial court that has not acknowledged the defendant, there own settings, and several
motions. We have a Special Appearance properly before the court prior to a Motion for
Summary Judgment, yet ignored. We have a Venue hearing with no objections also
ignored by the court. This is not mere error; it is fraud upon the court.
Respectfully submitted,
David Goad, Defendant Pro Se
1154 Rivertree Drive
New Braunfels, Texas 78130
512-554-5461
Certificate of Service
I certify that a true copy of this DEFENDANT'S MOTION FOR REHEARING and EN BANC
CONSIDERATION was served in accordance with rule 9.5 of the Texas Rules of Appellate Procedure on
each party on June 11, 2015 as follows:
Craig R. Denum
11757 Katy Freeway, Ste 1010
Houston, Texas 77079-1732
U.S. Mail
David Goad
DECLARATION
I, David Goad, if requested to do so, could and would competently testify under oath,
based upon my personal knowledge, to the matters stated herein:
The information 1 have provided in the attached FIRST AMENDED APPELLANT'S
MOTION FOR REHEARING and EN BANC CONSIDERATION is true and correct.
I freely swear under the penalty of perjury under the Laws of the United States of
America that my above statements are true and correct to the best of my knowledge.
June 11,2015
David Goad
/♦OPT 1030735 aC.C.L#3
NO.
HANCOCK BANK F/K/A PEOPLES § LN THE COUNTY CC^T 4 <*
FIRST COMMUNITY BANK § ' * "& V, %-
vs § AT LAW NUMBER ;1^^/\ ^ <^
DAVID GOAD § HARRIS COUNTY, TEXAS^J
%
PLAINTIFFS ORIGINAL PETITION
TO THE HONORABLE JUDGE:
Comes now HANCOCK BANK F/K/A PEOPLES FIRST COMMUNITY BANK,
hereinafter referred to as Plaintiff, complaining of DAVID GOAD, hereinafter referred
to asDefendant, and as grounds therefore shows asfollows:
I.
The discovery of this case is intended to be conducted tinder Level 1pursuant to
Rule 190.1 of the TexasRules of Civil Procedure.
n.
The Plaintiff, HANCOCK BANK f/k/a PEOPLES FIRST COMMUNITY BANKis>
a National Bank with its principal place of business located inHouston, Harris County,
Texas.
DAVID GOAD, Defendant, may beserved with process by serving him at 1154
Rivertree Drive, NewBraunfeLs, Comal County, Texas 78130.
HI.
Venue is proper in Harris County, Texas because it is the county where the
Defendant resides.
IV.
Attached hereto as Exhibit "A" is a copy of a Promissory Note (hereinafter
referred toas "Note") dated July 17/ 2006, executed by the Defendant, DAVID GOAD,
and delivered to the Plaintiff. The Plaintiff is the owner and holder of the Note and is
EJW *
Rt: Hancock Bank
Subject: RE: Hancock Bank
From: "Na, YooJin"
Date: 6/10/2015 12:08 PM
To: '"1983remedies@gmail.com"' <1983remedies@gmail.com>
Yes. Hancock Bank, is not found listed in the records of the Office of the
Comptroller of the Currency as a national bank.
Original Message
From-: ' < \ - lail .com [!tiiii]:to:1983remedie
Sent: Wednesday, Dune 10, 2015 1:05 PM
To: Na, YooJin
Subject: Re: Hancock Bank
Confirming, Hancock Bank, a National Bank, is not found listed in the records of the
Office of the Comptroller of the Currency at the United States Department of the
Treasury?
n 6/10/2015 11:54 AM, Na, YooJin wrote:
jHello,
!
II have checked our systems and records and cannot confirm that Hancock Bank is a
j national bank.
IThank you,
I Yoo Jin Na
| Senior Licensing Analyst
j -----Original Message
j From: 1983remediesjSfima.il. com [mai 1.to: 1983r§!!iedies§gmai 1, cpm]
jSent: Wednesday, June 10, 2015 11:55 AM
j To: Na, YooJin
1Subject: Hancock Bank
i
|
I Hi Yoojin,
1 Attached please find the caption pages for a litigation.
Thank You
! DC
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£*h;bi+"&" 6/10/2015 12:15 PM