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 9/7/2015 12:00:00 AM CHRISTOPHER PRINE CLERK FILED IN No. 01-15-00440-CV and 01-000228-CV 1st COURT OF APPEALS HOUSTON, TEXAS 9/8/2015 9:23:00 AM ________________________________________________________________ IN THE FIRST DISTRICT COURT OF APPEALS CHRISTOPHER OF TEXAS Clerk A. PRINE ________________________________________________________________ IN RE ERNEST R. KOONCE, RELATOR ________________________________________________________________ Original Proceeding from the 127th Judicial District Court of Harris County Cause No. 2010-64752 __________________________________________________________________ MOTION FOR EXTENSION OF TIME IN WHICH TO FILE A BRIEF AND/OR REPLY BRIEF AND REPLY FOR WRIT OF MANDANMUS 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 THIRD 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 __________________________________________________________________ REPLY PETITION FOR WRIT OF MANDAMUS ERNEST R. KOONCE RELATOR, Pro Se 15938 Fleetwood Oaks Drive Houston, Texas 77079 Tel: (832) 434-3183 Fax: (832) 328-7171 rayk469@gmail.com TO THE HONORABLE COURT OF APPEALS OF TEXAS: Ernest R. Koonce, Relator, and those similarly situation, respectfully submit this his motion for an extension of time in which to file a brief/reply brief and reply to Mandamus, and would show the Court as follows: 2 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 15938 Fleetwood Oaks Drive Houston, Texas 77079 Tel: (832) 434-3183 Fax: (832) 328-7171 rayk469@gmail.com 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 3 Suite 3700 Houston, Texas 77010 Tel: (713) 650-9700 Fax: (713) 650-9701 vhenderson@bakerdonelson.com 4 BACKGROUND The first lawsuit was resolved by summary judgment and that case was appealed to this Court under Case No. 01-10-000194-CV, In that case, Wells Fargo sworn via affidavit that two assignments dated March 23, 2009, where true and correct copies of the originals, and the Court granted summary judgment in Wells Fargo’s favor, and this Court affirmed. Six years later, Wells Fargo is now claiming that assignments dated February 17, 2004 are the true and correct assignments. Not only does this clearly demonstrate a fraud upon the trial court and his court, but Wells Fargo never has and never will be the owner and holder of Applicant’s mortgage. Failure to properly securitize the mortgage renders the transaction void. On February 13, 2015, Applicant filed his Motion for Accelerated Appeal in the 127th District Court. This motion was set for submission on February 23, 2015 and was finally denied on May 11, 2015. Applicant filed Petition and/or in the Alternative, Writ of Mandamus on March 11, 2015 in the First Court of Appeals. This was filed as one document. However, the Court subsequently split 5 the case on May 15, 2015, and Applicant paid a second filing fee per the Court’s instructions. On August 5, 2015, Applicant received a notice from the Court regarding what Applicant thought was a reply deadline. MOTION FOR EXTENSION OF TIME Applicant called the clerk’s office several times, including approximately 10 days ago to verify when the Petition was due. He was advised it was due September 5, 2015. Last week, on Friday, September 4, 2015, Applicant’s daughter called the clerk to verify when it was due. The clerk originally stated September 5, 2015. Applicant’s daughter asked if that meant it was actually due on Tuesday since the 5th was the weekend and Monday is a holiday i.e., labor day. The clerk initially said yes. Upon further review, the clerk stated that the brief, not a reply, was past due that it was actually due August 26, 2015, eight (8) days earlier. There had obviously been some confusion and mistakes earlier by both Applicant and the clerk. This mistake appears to be mutual. Applicant did not intentionally miss the deadline, but rather, was mistaken about when it was actually due. There’s also 6 confusion as to whether a brief is due or a reply is due for the accelerated appeal. Applicant planed on filing a reply to both the Mandamus and Wells Fargo’s response brief, but inadvertently missed the deadline. No harm and no bad faith intention has occurred, and Wells Fargo is in no way prejudiced by an extension; however, Applicant will be if none is granted. There are many misleading statements made by Wells Fargo that need to be addressed. Not allowing Applicant to file a reply to Wells Fargo’s response would be a miscarriage of justice. Wells Fargo has already gotten away with falsifying documents, and has repeatedly refused to produce relevant documents throughout the entire litigation. As the Court can see by Applicant’s original, Wells Fargo has routinely made false statements to the Court, manipulated facts, taken gross advantage of a pro se litigant which has not served the interests of Justice. Wells Fargo has received blatant favoritism in both the state and federal courts, which has and continues to violate Applicant’s due process rights. The federal court refuses to provide timely notice of hearings. 7 Applicant was also advised by the clerk’s office that his appendix had been rejected in its entirety because of lack of tabs. Applicant did not have a program to create tabs. However, he subsequently found one and has had a difficult time trying to create the tabs, and this distraction is part of the reason for missing the deadline and confusion about actual date of the deadline, as well as Applicant’s health. Applicant is a 74 year old Air Force veteran, and is tired and not in the best of health. PRAYER Wherefore, Applicant prays that this Court clarify if an actual brief or a reply brief is due, after that determination is made grant him an extension of time in which to file the brief and reply to the Writ of Mandamus to ensure that Applicant has a reasonable amount of time, with a clear date in which to reply, and that Justice serves Justice, and for such other and further relief as the Court may deem just and proper. Word Count per computer: 733 8 MEET AND CONFER On September 4, 2015, Applicant contacted Respondent via email and advised her that this motion would be filed. In Ms. Henderson’s typical, uncooperative and unprofessional manner, she stated she was opposed. Although Applicant has accommodated Ms. Henderson on several occasions and has acted professionally, Ms. Henderson continues to refuse to extend any sort of professional courtesy. Respectfully submitted on this 5th day of September, 2015. /s/ Ernest Ray Koonce Ernest Ray Koonce CERTIFICATE OF SERVICE Pursuant to Rule 9.5 of the Texas Rules of Appellate Procedure, a true and correct copy of the foregoing document has been sent to the following via efiling; additionally, the 127th District Clerk was advised via telephone that this Mandamus was being filed: Bradley Chambers Texas Bar No. 2400186 Valerie Henderson Texas Bar No. 24078655 Baker, Donelson, Bearman, 9 Caldwell & Berkowitz, P.C. 1301 McKinney Street Suite 3700 Houston, Texas 77010 (713) 650-9700 – Telephone (713) 650-9701 – Facsimile vhenderson@bakerdonelson.com /s/ Ernest Ray Koonce Ernest Ray Koonce 10