Albert Morris and Tilda Morris v. Sand Canyon Corp. F/K/A Option One Mortgage Corporation, American Home Mortgage Servicing, Inc. N/K/A Homeward Residential, Inc. and Wells Fargo Bank, N.A. ( 2015 )

ACCEPTED
14-13-00931-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
6/29/2015 11:32:16 PM
CHRISTOPHER PRINE
CLERK
IN THE FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
FILED IN
ALBERT MORRIS, ET. AL. § 14th COURT OF APPEALS
HOUSTON, TEXAS
Appellants, § 6/29/2015 11:32:16 PM
§ CHRISTOPHER A. PRINE
vs. § CASE NO.: 14-13-00931-CVClerk
§ TRIAL COURT:12-DCV-197669
SAND CANYON, F/K/A §
OPTION ONE, ET. AL. §
Appellees. §
APPELLANTS’ MOTION FOR REHEARING
TO THE HON. COURT:
THIS MOTION PRAYS FOR RE-HEARING, A RE-SUBMISSION OF
This Case for Court’s review; this, because the opinion rendered on May 14th
2015 affirming the trial court’s decision, was in error.
In Lowe v. Lowe, Cause number 14-96-01329-CV, (14th Court of Appeals –
June 18th 1998) a case similar to this instant case, this Court ruled that the case
law of Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939) did
apply, and that case was remanded for new trial. As the circumstance of Lowe is
similar to this case, the Court should have equally found that Craddock applies
in this case, as the Court found in Lowe.
Appellant Albert Morris showed in the Brief that his failure to appear for
the summary judgment motion hearing, was not intentional or result of
conscious indifference, but was due to accident or mistake; this being the first
prong in Craddock. At that time, Albert Morris had series of surgeries in which
1
he was physically incapacitated in a hospital bed, and could not have attended
the hearing at trial court. This fact was true and uncontroverted.
For merit, Appellants further showed that they have meritorious claim
for a Bill of Review where an essential party was not party in the original suit;
this essential party was neither disclosed nor known to the Appellants at the
time it (American Home Mortgage Service Inc.) took the short gun approach
of self help in conducting a March 3rd 2009 foreclosure of their Home Equity
Loan without judicial consent. The attached document, shows that Wells Fargo
knew that the March 3rd 2009 foreclosure was conducted unlawfully; hence,
Wells Fargo attempt to “correct” the situation by foreclosing on same property
on October 4th 2014 – see attached Notice of Foreclosure.
Contrary to the Court’s opinion on page 8 of the May 14th 2015
Opinion, Appellants did not waive this issue of Indispensable party; this is
because this fact was part of the trial court’s record; and such record was fully
furnished to this Court as part of the record on appeal. Also, failure of the
Court to review all matters before it, goes contrary to the basic law of trial de
novo in appeal of cases such as this where summary judgment was granted.
For the third prong of the Craddock rule, Appellants filed a motion for
new trial when it would not cause delay of otherwise injure the prevailing party.
The matter between the litigants have gone on for some time, a continuance
2
(or new trial) of the summary judgment motion hearing would not have made
any difference, or caused any delay.
In same Lowe v Lowe’s case, this Court in footnote 1 in it’s opinion, noted
that “the party need not satisfy all three prongs when the party did not receive
notice of the hearing or suit.” The Court further credited that view to a sister
Court in Bryant v. Gamblin, 829 S.W.2d 228, 229 (Tex. App. – Eastland 1991,
writ denied). Appellants did not receive notice of the trial court’s hearing.
PRAYER
Appellants Urges this honorable Court to vacate it’s May 14th 2015
Opinion and Judgment, and Re-Hear this appeal for fairness and justice.
Respectfully submitted,
/s/ Albert Morris
By:___________________
Albert Morris
P. O. Box 17026
Sugar Land, Texas 77496
713/931-8777; Fax: 832/217-2913
Appellants
CERTIFICATE OF SERVICE
I certify that copy of this motion was served all parties this 29th day of
June 2015, via e-file.
/s/ Albert Morris
_____________________
Albert Morris
3
o ~ 9314 7100 1170 0777 5929 88
MACKIE WOLF ZmNI'Z & MANN, P.C.
ATIORNEYS AT LAW
PHONE (214) 635-2650 FAX (214) 635-2686
PARKWAY OmCE Cmlm, Sum, 900 UNDN PLA7A
14160 NOR'J1t DALLAS PARKWAY 124 WE.'IT CAPITOL, Sur.m 1560
DAlLAS, TEXAS 75254 LmLE RocK, ARKA1~AS 72201
• i>ulAsu 1UI!l'Ol\'D 'JtI DArlAS 0Pl'1CIl
14-005112-670
November 18, 2014
VIA CERTIFIED MAILIRRR
AND REGULAR MAIL
TILDA MORRIS
54 TIIE OVAL
SUGAR LAND, TX 77479
Re: Property Address: 54 THE OVAL, SUGAR LAND, TX 77479
MWZ Case No.: 14-005112-670
3 Day Notice to Vacate Prior to Filing Unlawful Entry and Detainer - Residential
PLEASE TAKE NOTICE: Pursuant to the tenns of the Deed of Trust that encumbered the above
referenced property a foreclosure sale was held on 1010412014. Our client, Wells Pargo B~
NA., as trustee for ACE Securities Cotp. Home Equity Loan Trust, Series 2004-0P1 Asset
Backed Pass-1hrough Certificates, Series 2004-0Pl, was the purchaser at the foreclosure sale
and based upon the Deed of Trust, you are hereby given this 3-Day Notice to Vacate. You must
completely vacate the leased premises by 11121/14.
Texas Property Code §24.005(b) provides in part:
If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at least three
days' written notice to vacate before the landlord files a forcible detainer suit.
If you fail to vacate by the above deadline, we will, on behalf of our client, Wells Fargo Bank,
NA., as trustee for ACE Securities Cotp. Home Equity Loan Trust, Series 2004-0P1 Asset
Backed Pass-Through Certificat~S, Series 2004-0Pl, file a Porable Detainer lawsuit against
you.
IF YOU ARE AN ACTIVE DUTY MEMBER OF THE UNITED STATES ARMED
FORCES OR A DEPENDENT OF AN ACTIVE DlITY SERVICEMEMBER, YOU MAY
BE ENTITLED TO RIGHTS AS PROVIDED IN THE SERVICEMEMBERS CIVR.
RELmF ACT. IN SUCH CASE, YOU OR YOUR ATI'ORNEY SHOULD CONTACT
TIllS LAW FIRM AND PROVIDE PROOF OF MILITARY SERVICE IMMEDIATELY
SO THAT THIS FIRM CAN DETERMINE IF YOU FALL UNDER TIlE PROTECTION
OF THE ACT. PLEASE CONTACT DON JOHNSON OR BRIAN OMMART AT (214)
635-2650.
STATE OF TEXAS
COUNTY OF FORT BEND
Loan No. 714mU47
Notice to Vaalte - Page 1 of 4
o o
TIllS NOTICE IS GIVEN PURSUANT TO APPLICABLE LAW AND IN NO WAY
IMPAIRS ANY OF THE O1HER REMEDIES OR RIGHTS OF 'IlIE OWNER~ EITHER
UNDER THE DEED OF TRUST OR UNDER APPLICABLE LAW.
If you have any questions please call our offices at (214) 635-2650.
Issued on November 18, 2014.
Mackie Wolf Zientz & Mann, P.C.
STATE OF TEXAS
COUNTY OF FORT BEND
I ~e~eby certify this to be a true and correct copy of
Loan No.71433S1147 onglnal record now on fii~.:dJUsti~:eace
Notice w Vaatte- Page 2 of 4 Precinct 4. Certifi this ay of UKI/L '
20.l.!2-. . . . "._ ~ . ' 7
. -"'- ~ ~rk
ustice of the eace, Pct 4
OFFICIAL RECEIPT
Justice of the Peace, Precinct 4
Payor Receipt No.
MORRIS, ALBERT 0 41-63259
54 THE OVAL ST
SUGAR LAND, TX 77479 Judge Transaction Date
Richard, Laura 02/19/2015
Description Amount Paid
Wells Fargo Bank, NA, as trustee for ACE Securities Cotp. Home Equity Loan Trust. Series 2004-0P1 Asset Backed Pass-Through
Certificates, Series 2004-0P1
14-JEV41-08617
Wells Fargo Bank, NA, as trustee for ACE Securities Cotp. Home Equity Loan Trust, Series 2004-0P1 Asset Backed Pass-
Through Certificates, Series 2004-0P1 vs ALBERT MORRIS,Tilda Morris and All Occupants
, Copy (Certified) 1st Page 5.00
Copies - Certified 5.00
Copy (Certified) Additional Page 1,00
Copies - Certified 1.00
SUBTOTAL 6.00
Remaining Balance Due: $0.00
PAYMENTTOTALvP____________~6~.O~O~
Cash Tendered 6.00
Total Tendered 6.00
Change 000
02/19/2015 Cashier zapatern Audit
<" 10:33 AM Station JP4R04 5219019
OFFICIAL RECEIPT