in Re Charles Storer, Agent Under a Power of Attorney for Kenneth Cooper McAfee ( 2015 )

ACCEPTED
01-15-00838-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/2/2015 10:38:19 AM
CHRISTOPHER PRINE
CLERK
No. -01-15-00838-CV
-----
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
1st
IN THE COURT OF APPEALS 10/2/2015 10:38:19 AM
FOR HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
INRE: CHARLES STORER,
AGENTUNDERAPOwtROFATTORNEYFOR
KENNETH COOPER MCAFEE,
RELATOR
PETITION FOR WRIT OF MANDAMUS
Respectfully Submitted,
ANDERSON PFEIFFER, PC
Esther Anderson
SBN: 00792332
Robert Teir (of Counsel)
SBN: 00797940
845 FM 517 West, Suite 200
Dickinson, Texas 77539
Telephone: (281) 488-6535
Facsimile: (281) 488-0625
Email: esther@probateguardianship.com
Attorneys for Relator, Charles Storer, Power
of Attorney for Kenneth Cooper McAfee
IDENTITY OF PARTIES AND COUNSEL
Relator, Charles Storer, Agent under a Power of Attorney for Kenneth Cooper
McAfee, certifies that the following is a complete list of the parties, the attorneys
and any other persons who have any interest in the outcome of this lawsuit.
1. Relator: Charles Storer, Agent under a Power of
Attorney for Kenneth Cooper McAfee
Counsel: Esther Anderson
Anderson Pfeiffer, PC
SBN: 00792332
845 FM 517 West, Suite 200
Dickinson, Texas 77539-2903
Office: 281-488-6535
Facsimile: 281-614-5205
Email: esther@probateguardianship.com
Of Counsel: Robert Teir (of Counsel)
SBN: 00797940
845 FM 517 West, Suite 200
Dickinson, Texas 77539
Office: 832-365-1191
Facsimile: 832-550-2700
Email: rob@teirlaw.com
2. Respondent: Honorable Loyd Wright
Judge, Probate Court No. 1
Harris County, Texas
201 Caroline, 6th Floor
Houston, Texas 77002
ii
3. Real Party in Interest: Rosemary Foltyn and Jake Foltyn
Counsel: Dean M. Blumrosen
SBN: 02517900
4615 Southwest Freeway, Suite 850
Houston, Texas 77027
Office: 713-524-2225
Facsimile: 713-524-5570
Email: Dblumrosenlaw@aol.com
4. Real Party in Interest: Rosemary Foltyn, Administratrix of The
Estate of Janet Foltyn McAfee, Deceased
Counsel: Mary Elizabeth Duff
Mitchell & Duff, LLC
SBN: 06166880
21 0 Main Street
Richmond, Texas77469
Office: 281-341-1718
Facsimile: 281-239-7928
Email :eduff@mitchellandduff.com
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................. II, III
TABLE OF CONTENTS ............................................................................................... IV, v
INDEX OF AUTHORITIES ...................................................................... VI, VII, VIII, IX, X
STATEMENT OF THE CASE .......................................................................................... XI
STATEMENT OF JURISDICTION ............................................................................... XIII
ISSUES PRESENTED ................................................................................................... XIII
1. Does the Probate Court have jurisdiction to
act without a pending cause of action? (No.)
2. Without a pending cause of action, are the
June 8, 2011 temporary injunction and the
May 18, 2015 Orders void? (Yes.)
3. Do the doctrines of collateral estoppel and
res judicata bar re-tracing of the Woodforest
account? (Yes.)
4. Do the two Orders amount to a violation of
K. McAfee's due process rights? (Yes.)
5. Do the two Orders amount to an abuse of
discretion? (Yes.)
STATEMENTOFFACTS .................................................................................................. 1
SUMMARY OF ARGUMENT ......................................................................................... 11
iv
ARGUMENT .................................................................................................................... 13
I. This case warrants mandamus relief.
II. The Probate Court does not have jurisdiction
to act without a pending cause of action.
III. Without a pending cause of action, the
temporary injunction and the May 18, 2015
Order are void.
IV. Res Judicata and Collateral Estoppel barre-
tracing of the Woodforest account.
V. The Estate's claims cannot be satisfied from
the Woodforest account or assets stemming
from the Woodforest account and continued
obstruction of these funds violates due
process and constitutes an abuse of
discretion.
PRAYER ...........................................................................................................................45
CERTIFICATE OF SERVICE ......................................................................................... 47
CERTIFICATE OF COMPLIANCE ................................................................................. 48
RULE 52.3(1) CERTIFICATION ..................................................................................... .49
APPENDIX ....................................................................................................................... 50
v
INDEX OF AUTHORITIES
CASES PAGE(S)
360 Degree Commc 'ns Co. v. Grundman,
937 S.W.2d 574 (Tex. App.-Texarkana 1996, no writ) ............................ 22
Amstadt v. US. Brass Corp.,
919 S.W.2d 644 (Tex. 1996) ........................................................................ 37
Barr v. Resolution Trust Corp.,
837 S.W.2d 627 (Tex. 1992) ..................................................... 25, 26, 38, 42
Benson v. Wanda Petroleum Co.,
468 S.W.2d 361 (Tex. 1971) ........................................................................ 37
Big D Props., Inc. v. Foster,
2 S.W.3d 21 (Tex. App.-Fort Worth 1999, no pet.) .................................. 22
Butnaru v. Ford Motor Co.,
84 S.W.3d 198 (Tex. 2002) .......................................................................... 21
Crowson v. Wakeham,
897 S.W.2d 779 (Tex. 1995) ........................................................................ 40
Cunningham v. Parkdale Bank,
660 S.W.2d 810 (Tex. 1983) ............................................................. 17, 18,19
Dionne v. Bouley,
757 F.2d 1344 (1st Cir. 1985) ...................................................................... 44
Eagle Props., Ltd. v. Scharbauer,
807 S.W.2d 714 (Tex. 1990) .................................................................. 35,37
Eastern Energy, Inc. v. SBY P'ship,
750 S.W.2d 5 (Tex. App.-Houston [1st Dist.] 1988, no writ) ................... 25
EOG Res., Inc. v. Gutierrez,
75 S.W.3d 50 (Tex. App.-San Antonio 2002, no pet.) .............................. 22
vi
Evans v. C. Woods, Inc.,
34 S.W.3d 581 (Tex. App.-Tyler 1999, no pet.) ....................................... 22
Goldstein v. Comm 'n for Lawyer Discipline,
109 S.W.3d 810 (Tex. App.-Dallas 2003, pet. denied) ............................. 38
Houtex Ready Mix Concrete & Materials v. Eagle Canst. & Envtl. Servs., L.P.,
226 S.W.3d 514 (Tex. App.-Houston [1st Dist.] 2006, no pet.) ............... 38
In re Cerberus Capital Mgmt., L.P.
164 S.W.3d 379 (Tex. 2005) (orig. proceeding) .................................... 14,45
In re Dickason,
987 S.W.2d 570 (Tex. 1998) .................................................................. 13, 15
In re Francis,
186 S.W.3d 534 (Tex. 2006) ........................................................................ 16
In re Mask,
198 S.W.3d 231 (Tex. App.-San Antonio 2006, orig. proceeding) .......... 15
In re Pierce,
No. 13-12-00125-CV, 2012 WL 3525638
(Tex. App.-Corpus Christi Aug. 10,2012, orig. proceeding)
(mem. op.) .................................................................................. 14, 15, 16, 45
In re Sw. Bell Tel. Co.,
35 S.W.3d 602 (Tex. 2000) (orig. proceeding) (per curiam) .................. 13, 15
InterFirst Bank San Felipe v. Paz Constr. Co.,
715 S.W.2d 640 (Tex. 1986) (per curiam) ............................................. 13,22
Johnson & Higgins ofTex., Inc. v. Kenneco Energy, Inc.,
962 S.W.2d 507 (Tex. 1998) ...................................................... 27, 32, 33,36
Lehmann v. Har-Con Corp.,
39 S.W.3d 191 (Tex. 2001) .......................................................................... 40
vii
Logan v. McDaniel,
21 S.W.3d 683 (Tex. App.-Austin 2000, pet. denied) ............................... 40
Lozano v. Lozano,
975 S.W.2d 63 (Tex. App.-Houston [14th Dist.] 1998, pet. denied) ........ 28
Lucik v. Taylor,
596 S.W.2d 514 (Tex. 1980) ........................................................................ 18
Murray v. 0 & A Express, Inc.,
630 S.W.2d 633 (Tex. 1982) ........................................................................ 18
Parklane Hosiery Co. v. Shore,
439 u.s. 322 (1979) ..................................................................................... 37
Phillips v. Allums,
882 S.W.2d 71 (Tex. App.-Houston [14th Dist.] 1994, writ denied) ........ 37
Quinney Elec., Inc. v. Kondas Entm 't, Inc.,
988 S.W.2d 212 (Tex. 1999) (per curiam) ................................................... 26
Qwest Commc 'ns Corp. v. AT&T Corp.,
24 S.W.3d 337 (Tex. 2000) (per curiam) ............................................... 13, 22
Rexrode v. Bazar,
37 S.W.2d 614 (Tex. App.-Amarillo 1997, no writ) ........................... 34,41
Roark v. Allen,
633 S.W.2d 804 (Tex. 1982) ........................................................................ 18
Robbins v. HNG Oil Co.,
878 S.W.2d 351 (Tex. App -Beaumont 1994, writ dism'd w.o.j.) ............ 37
Scurlock Oil Co. v. Smithwick,
724 S.W.2d 1 (Tex. 1986) ............................................................................ 38
Smith v. Lanier,
998 S.W.2d 324 (Tex. App.-Austin 1999, pet. denied) ........................ 17,18
viii
State & Cty. Mut. Fire Ins. v. Miller,
52 S.W.3d 693 (Tex. 2001) .......................................................................... 28
State v. Traylor,
374 S.W.2d 203 (Tex. 1963) .................................................................. 17, 19
Sysco Food Servs., Inc. v. Trapnell,
890 S.W.2d 796 (Tex. 1994) ................................................ 26, 27, 32, 37,38
Tankersley v. Durish,
855 S.W.2d 241 (Tex. App.-Austin 1993, writ denied) ............................ 38
Tex. Dep 't ofPub. Safety v. Petta,
44 S.W.3d 575 (Tex. 2001) ............................................................... 27, 28,37
Texas Natural Res. Conservation Comm 'n,
85 S.W.3d 201 (Tex. 2002) (orig. proceeding) ............................................ 15
Walling v. Metcalfe,
863 S.W.2d 56 (Tex. 1993) (per curiam) ..................................................... 24
ix
RULES
TEX. R. CIV. P.
§ 2 ........................................................................................................................... 18
§ 22 ......................................................................................................................... 18
§ 97 ......................................................................................................................... 42
§ 683 ................................................................................................................. 18, 24
STATUTES
TEXAS ESTATE CODE
§ 22.029 .................................................................................................................. 24
§ 31.001 ............................................................................................................. 17, 18
§ 31.002 ............................................................................................................ 17, 18
§ 32.001 .................................................................................................................. 17
§ 402.001 ............................................................................................................... 17
TEXAS PROP. CODE
§ 42.0021(a)
42 U.S.C. 407 ................................................................................................... 12, 31, 32,44
X
STATEMENT OF THE CASE
Nature of the Case The Probate Court granted an independent estate
administration m one cause number, and heard a
wrongful death proceeding in another cause number. The
Probate Court issued a temporary injunction in the estate
administration. A final judgment was entered in the
wrongful death proceeding, but no claims were filed in
the estate administration.
Probate Court Probate Court No. 1 of Harris County, Texas
Hon. Loyd Wright, Presiding
Disposition Below The Probate Court refused to fully lift the temporary
injunction and instead ordered that a portion of funds in
an account containing only social security benefit
proceeds be turned over to the County Clerk's registry.
xi
STATEMENT OF JURISDICTION
The Court has jurisdiction to issue a writ of mandamus under TEX. Gov'T
CODE §22.22l(b)(l).
xii
ISSUES PRESENTED
The Probate Court entered an order declaring Kenneth McAfee's account at
Woodforest National Bank ending in -404 exclusively holds his social security
benefit proceeds that are exempt from garnishment. Subsequently, the Probate
Court refused to fully lift a temporary injunction on this account and ordered a
portion of such funds to be turned over to the County Clerk's registry for the
benefit of the estate of Janet Foltyn McAfee, Deceased until the nature of two
deposits at issue has been determined.
1. Does the Probate Court have jurisdiction to act without a pending cause of
action? (No.)
2. Without a pending cause of action, are the June 8, 2011 temporary
injunction and the May 18, 2015 Orders void? (Yes.)
3. Do the doctrines of collateral estoppel and res judicata bar re-tracing of the
Woodforest account? (Yes.)
4. Do the two Orders amount to a violation ofK. McAfee's due process rights?
(Yes.)
5. Do the two Orders amount to an abuse of discretion? (Yes.)
xiii
STATEMENT OF FACTS
Kenneth Cooper McAfee ("K. McAfee" herein) was convicted of a criminal
offense involving the death of his wife, Janet Foltyn McAfee, and is currently
serving his sentence at a Texas correctional institution. Janet McAfee died on May
8, 2010.
On June 8, 2010, Janet McAfee's mother, Rosemary Foltyn, was appointed
Independent Administrator of Janet McAfee's estate by the Probate Court No. 1 of
Harris County, Texas under Cause no. 396,935. Rosemary Foltyn, in this capacity,
will be referred to herein as "the Estate."
On February 23, 2011, Janet McAfee's parents, Rosemary and Jake Foltyn,
individually, and the Estate brought a wrongful death action against Kenneth
McAfee in the same Court, under the ancillary Cause no. 396,935-401.
On March 31, 2011, the Estate obtained a Temporary Restraining Order in
the estate administration under Cause no. 396,935, which was eventually converted
to the June 8, 2011 Agreed Order for Temporary Injunction. Tab 1. The
Temporary Injunction enjoins K. McAfee from the use and control of his assets
and assets he shared with Janet McAfee and states that it is to remain in place until
the Court makes a determination of what property belongs to the Estate of Janet
McAfee or renders a full and final judgment in the wrongful death suit. Tab 1, at
p. 9.
PAGE 1
On March 21, 2014, the Probate Court granted a summary judgment in the
wrongful death action in favor of the Foltyns and awarded them each
$1,000,000.00. Tab 2.
The June 8, 2011 Temporary Injunction remains in place today and affects
K. McAfee's Woodforest National Bank account that is the subject of this
mandamus proceeding and his 401(k) account at GMS.
The Foltyns seek writs ofgarnishment; two of K. McAfee's accounts are exempt.
On October 9, 2014, the Foltyns sought Writs of Garnishment against K.
McAfee's bank accounts at The GMS Group, L.L.C., and Woodforest National
Bank under the ancillary wrongful death cause of action no. 396,935-401. Tab 3.
Charles Storer, as agent under a power of attorney for K. McAfee, acted on
behalf ofK. McAfee in the 401 garnishment proceedings. On November 19, 2014
Storer filed a Motion to Quash Writs of Garnishment only to the extent that they
reached two particular accounts: a GMS account ending in -606 holding only K.
McAfee's tax-deferred retirement benefits from his previous employer, and the
Woodforest account ending in -404 holding only K. McAfee's Social Security
Disability Insurance benefits, claiming both are exempt from judgment creditors.
Tab4.
PAGE2
On January 7, 2015, the Estate entered the 401 garnishment proceedings by
filing a Notice to Court wherein the Estate objected to Storer's Motion to Quash
and claimed a community property interest in the two accounts Storer sought to
protect from garnishment. Tab 5. The Foltyns, individually, also filed a Response
to Charles Storer's Motion to Quash Writs of Garnishment, claiming that Charles
Storer did not have standing, and seeking a stay pending K. McAfee's compliance
with post-judgment discovery. Tab 6. On January 8, 2015, the parties attended a
hearing, which was ultimately continued by the Court until the issues of standing
and post judgment discovery were addressed. Tab 7. 1
On January 22, 2015, the Court heard arguments of counsel regarding the
writs and Storer's Motion to Quash. Tab 8. All counsel agreed that the writs on
the Woodforest -404 account should be quashed because it held K. McAfee's
401(k) and social security benefits. Tab 8, at p. 4, Ins. 1-9; at p. 8, Ins. 11-15 and
at p. 18, Ins. 15-18. All counsel also agreed the Foltyns should receive the balance
in all of the remaining accounts. Tab 8. However, there was disagreement over
whether the Order should include language to release the temporary injunction, and
to what extent. Tab 8.
1
The January 8, 2015 Reporter's Record states Cause No. 396,935, when it should actually state
Cause No. 396,935-401.
PAGE3
The Estate did not want to release the temporary injunction on the 401(k)
account (GMS -606) because of its alleged verbal claim for Janet McAfee's
potential community property interest. Tab 8. The Foltyns did not want to release
either of the two accounts, their reason being, "I don't think [the Estate] has had a
complete [opportunity] to review and look at everything on the Woodforest
account." Tab 8, at p. 3, Ins. 21 through p. 4, ln. 1.
The Court inquired more than once if the Estate had enough information to
determine its claims. Tab 8. The Estate's response was that it was "reasonably
sure" that the 401(k) was the only issue and that the Woodforest account held only
K. McAfee's social security benefits, to which they had no claim. Tab 8, at p. 17,
throughp.18, lns.1-25.
The Foltyns and the Estate made no argument contrary to Storer's argument
in his Motion to Quash or his oral arguments that the Woodforest -404 account
held only K. McAfee's social security benefits and the Court considered the
proposed orders. Tab 8, at p. 21, Ins. 6-8.
On January 27, 2015, the Probate Court entered an Order Partially Granting
Motion to Quash Writs of Garnishment. Tab 9. The Probate Court found that both
the GMS -606 account and the Woodforest -404 account were exempt from
garnishment and the writs against these two accounts were quashed. Tab 9, at p. 2.
The Probate Court further found that K. McAfee's remaining accounts at GMS
PAGE4
(ending in -008 and -628) remained subject to the writs and that payment from
such accounts shall issue to the Foltyns "upon receipt of an order releasing the
Agreed Order for Temporary Injunctions in Cause No. 396,935; In the Estate of
Janet Foltyn McAfee, Deceased, dated June 8, 2011." Tab 9, at p. 3.
Specific language of the Order, as it relates to the Woodforest social security
account, reads:
"On this day came to be considered the Motion to Quash Writs of
Garnishment filed by Charles Storer, Power of Attorney for Kenneth
Cooper McAfee. After review and consideration of said Motion, the
evidence, the responses, and the arguments of counsel, the Court finds
the following:
5. The Woodforest account ending in 404 holds, exclusively, social
security benefit proceeds of Kenneth C. McAfee which benefits
are exempt from garnishment under 42 U.S.C. 407. 42 U.S.C.
provides an absolute exemption and there are no statutory
exceptions to same. Because the Woodforest account ending in
404 contains only funds exempted from garnishment, the writ
directed at Woodforest as to Kenneth McAfee's account ending
in 404 should be quashed."
Tab 9, at p. 2.
The parties deal with the temporary injunction in the estate administration.
On February 10, 2015, Storer filed a Motion to Partially Release Temporary
Injunction in the estate administration cause (396,935) regarding the exempt
Woodforest social security account and the non-exempt GMS accounts payable to
the Foltyns (ending in -008 and -628). Tab 10. On March 6, 2015, the Estate filed
its own Motion to Partially Release Temporary Injunction, in which it sought
PAGES
release of only the non-exempt GMS accounts payable to the Foltyns (ending in -
008 and -628), and requested the temporary injunction otherwise remain in place,
without stating any reason why. Tab 11.
On March 12, 2015, a hearing was held to consider the partial release of the
temporary injunction. Tab 12.2
The Estate now resisted lifting the temporary injunction as to the
Woodforest social security account because it questioned the characterization of
two deposits that were made in the amounts of $25,162.66 on April 23, 2010, and
$9,735.92 on May 4, 2010. Tab 12, at p. 3, Ins. 10-24; at p. 8, Ins. 16-25; at p. 9,
Ins. 1-7; at p. 10, Ins. 13-21; at p. 15, Ins. 17-24; at p. 17, Ins. 6-10. The Estate
claimed it might have an interest of at least 50% in these deposits if they were
community property, and that this potential claim should be considered
"completely separate" from the garnishment proceedings brought by the Foltyns,
individually. Tab 12, at p. 8, Ins 16-25; at p. 9, Ins. 5-7.
2
The March 12, 2015 Reporters Record states Cause No. 396,835-401 when it should actually
state Cause No. 396,935 or include both.
PAGE6
The Foltyns' argument to keep the temporary injunction in place was based
upon (1) the language in the January 27, 2015 Order was overbroad, and (2) the
Court should use its inherent authority to rule for the Estate's claim due to the
purported lack of information from K. McAfee. Tab 12, at p. 9, Ins. 21-25; at p.
10, Ins. 1-3; at p. 6lns. 10-25; at p. 7, Ins. 1-6; at p. 13, Ins. 23-25; at p. 14, lns. 1-
8.
The language in the January 27, 2015 Order is not overbroad. It is true that
the Estate may have a community property interest inK. McAfee's 401(k) account
but the Woodforest social security account is different because it was traced and
found to include only K. McAfee's social security benefits, which benefits are his
separate property. Tab 9. Additionally, the Estate's own Inventory reveals the
Estate has had the information they are now seeking since at least August 26, 2011.
Tab 16, at p. 2.
Storer reminded the Court that, under the doctrine of res judicata, it had
already found that every dime in the Woodforest account is K. McAfee's social
security benefits. Tab 12, at p. 7, Ins. 14-25; at p. 8, Ins. 1-13. In fact, the two
deposits in question were specifically traced in Storer's Motion to Quash and they
were shown to have been withdrawn close to the time of the deposits, leaving only
social security benefits in the social security account. Tab 4, at p. 10, ~25, and
Exhibit "A" to such Motion; Tab 12, at p. 11, Ins. 18-25. And with no objection or
PAGE?
contrary evidence to Storer's tracing, or arguments of counsel, the Estate
previously admitted it was reasonably sure the Woodforest account held only K.
McAfee's social security benefits. Tab 8, at p. 18, Ins. 13-18. The Woodforest
social security account was traced, and that is what the Court found. Tab 9.
That was indeed the purpose of Storer's Motion to Quash Writs of
Garnishment, to prove that the entire Woodforest account was made up only of his
social security benefits and nothing else. Tab 4. The Estate took the additional
step to voluntarily enter the garnishment proceeding, make its claim, and to sit
silent as to any of the details regarding the Woodforest social security account.
Tab 8, at p. 5, Ins. 5-18; at p. 12, Ins. 10-23; at p. 17, Ins. 18-24; at p. 18, lns.
13.23. Their new challenge to the characterization of two deposits is waived and is
ban·ed by collateral estoppel and res judicata.
Nevertheless, on March 16, 2015, the Probate Court granted Rosemary
Foltyn's Motion, releasing only the non-exempt GMS accounts that were ordered
to be paid to the Foltyns (ending in -008 and -628), and continued the temporary
injunction. Tab 13. The Probate Court did not release K. McAfee's exempt
Woodforest -404 account. Tab 13.
PAGES
Storer tries again.
On April 15, 2015, Storer filed a Motion for Reconsideration ... and Motion
for Entry of Order Releasing Social Security Proceeds from Injunction, which was
amended on May 4, 2015. Tab 14 (First Amended Motion). 3 Storer urged the
Court again to release K. McAfee's social security proceeds and reminded the
Probate Court that a determination regarding the tracing of the funds in the
Woodforest account had already been made. Tab 14.
On May 14, 2015, the Probate Court heard the matter again, and specifically
reconsidered the tracing of the two deposits and withdrawals at issue in the
Woodforest account. Tab 15, at p. 16, Ins. 15-25; at p. 17, Ins. 1-17. Again, there
was no contrary evidence presented against Storer's tracing, just arguments that
Storer should have to re-prove his tracing with clear and convincing evidence. Tab
15, at p. 10, Ins. 12-24.
Storer explained some of the lingering questions that had been raised:
First, because social security benefits are not community property, any claim
the Estate might have in the two deposits/withdrawals cannot be satisfied from the
social security account, but must be satisfied from other assets of K. McAfee. Tab
15, at p. 14, Ins. 6-15; Tab 14, at p. 9, ~iii.
3
Because the parties and discussions had started to comingle between the attorneys involved in
the base and ancillary case, the First Amended Motion for Reconsideration was filed in both
causes, but the May 18, 2015 Order on same was signed in the wrongful death ancillary case
(396,935-401).
PAGE9
Second, the Estate indeed had possession of records showing the source of
the deposits since at least the time of filing the Estate inventory on September 26,
2011. Tab 16; Tab 15, at p. 12, Ins. 4-25; at p. 13, Ins. 1-17.
Third, everyone participated in the January 22, 2015 hearing and had the
opportunity to propose language for the Court's January 27, 2015 Order that Mr.
Blumrosen claims is too broad. Tab 15, at p. 27, Ins. 11-25.
The Probate Court releases part of the social security account to K. McAfee, but
takes control of the remaining social security proceeds.
On May 18, 2015, the Probate Court signed the Estate's Order on First
Amended Motion for Reconsideration ... and Motion for Entry of Order Releasing
Social Security Proceeds from lrifunction.... Tab 17. The Court found that Storer
did not prove the characterization of the two deposits by clear and convincing
evidence and ordered the Woodforest funds be released to K. McAfee, but for
$34,898.58 to be made payable to the County Clerk, for the use and benefit of the
Estate of Janet F oltyn McAfee, Deceased, until the nature of two deposits at issue
has been determined. Tab 17.
PAGE10
The Probate Court not only refuses to lift the temporary injunction as to all
of K. McAfee's social security benefits, but now has essentially garnished a large
part of the account ($34,898.58) to satisfy the Estate's alleged verbal claim. These
acts exceed the Court's authority and discretion over K. McAfee's social security
funds.
SUMMARY OF ARGUMENT
Mandamus is appropriate to compel a trial court to rescind a void order, to
correct a clear abuse of discretion, and to preserve important substantive and
procedural rights from impairment and loss when appellate remedy to cure the
error is not adequate. These criteria are present here.
The Probate Court does not have jurisdiction to act without a pending cause
of action. There are no pleadings filed in the estate administration against K.
McAfee, and there are no live pleadings remaining in the wrongful
death/garnishment proceedings at all. The Probate Court does not have jurisdiction
to handle estate claims sua sponte. Therefore, the temporary injunction should be
dissolved and the May 18, 2015 Order should be set aside for lack of jurisdiction.
Additionally, without a pending cause of action, the temporary injunction
and the May 18, 2015 Order are void because an order for an injunction must set a
cause for trial. This requirement is mandatory and failure to comply makes the
temporary injunction and the order void, as they have turned into nothing short of a
PAGE 11
permanent injunction. Therefore, the temporary injunction should be dissolved
and the May 18, 2015 Order should be set aside, both for being void.
Furthermore, res judicata and collateral estoppel bar re-tracing of the
Woodforest account. Storer previously put on tracing evidence, without question
or objection, to show the Woodforest account holds only K. McAfee's social
security benefits, and nothing else. The Court heard and decided that this account
in fact holds only McAfee's social security benefits and is exempt from creditors,
no exception. Any later "questions" the Estate may have that the Woodforest
account needs to be traced again are waived and are barred by the doctrines of
collateral estoppel and res judicata.
The Probate Court's most recent May 18, 2015 Order ignored Storer's
arguments concerning res judicata and invited further litigation. Although the
Probate Court released a portion of the Woodforest account to K. McAfee, the
Court took a drastic step by ordering Woodforest to turn over $34,898.58 of such
account to the County Clerk's registry for the benefit of the Estate of Janet Foltyn
McAfee. This was a violation of due process and contrary to the protections
provided by 42 U.S.C. 407. Such actions have amounted to an abuse of discretion
that needs to be conected.
PAGE 12
ARGUMENT & AUTHORITIES
I. This case warrants mandamus relief.
Mandamus is appropriate to compel a trial court to rescind a void order, to
correct a clear abuse of discretion, and to preserve important substantive and
procedural rights from impairment and loss when appellate remedy to cure the
error is not adequate. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000)
(orig. proceeding) (per curiam) (adding that "mandamus is proper if a trial court
issues an order beyond its jurisdiction") (citing In re Dickason, 987 S.W.2d 570,
571 (Tex. 1998)).
Void order
The June 8, 2011 temporary injunction is void because the Probate Court
does not have jurisdiction, there are no pleadings on file, and there is no cause set
for trial. See Qwest Commc 'ns Corp. v. AT&T Corp., 24 S.W.3d 337, 337 (Tex.
2000) (per curiam); InterFirst Bank San Felipe v. Paz Constr. Co., 715 S.W.2d 640
(Tex. 1986) (per curiam). The requirement for setting a cause for trial is
mandatory and must be strictly followed, or else the order is subject to being
declared void and dissolved. See Qwest Commc 'ns Corp., 24 S.W.3d at 337;
InterFirst Bank San Felipe, 715 S.W.2d at 641. The temporary injunction should
have been rescinded by the trial Court and should be set aside by the Court of
Appeals.
PAGE 13
The May 18, 2015 Order directing $34,898.58 from K. McAfee's social
security account be deposited into the registry of the court for the benefit of Janet
Foltyn McAfee is void for the same reasons: the Probate Court does not have
jurisdiction, there are no pleadings on file, and there is no cause set for trial on the
determination of to whom the funds belong. This Order should be set aside by the
Court of Appeals.
Clear abuse of discretion
A court abuses its discretion "if it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law or if it clearly
fails to correctly analyze or apply the law." In re Pierce, No. 13-12-00125-CV,
2012 WL 3525638, at *2 (Tex. App.-Corpus Christi Aug. 10, 2012, orig.
proceeding) (mem. op.) (citing In re Cerberus Capital Mgmt., L.P., 164 S.W.3d
379, 382 (Tex. 2005) (orig. proceeding)).
The law was clearly laid out as to why the temporary injunction should be
dissolved, at least in regards to the Woodforest account, for lack of jurisdiction -
no pleadings being on file and no cause being set for trial. Furthermore, it is clear
that the issue of tracing the Woodforest account had already occurred through the
Probate Court's January 27, 2015 Order, which determined that 100% of the funds
were K. McAfee's social security benefits, and nothing else.
PAGE14
The Probate Court's refusal to lift the temporary injunction, and instead to
take control of K. McAfee's funds and to hold them for the use and benefit of the
Estate, before it even receives what is being asked for, constitutes an abuse of
discretion.
Appellate remedy not adequate
Because the June 8, 2011 temporary injunction and the May 18, 2015 Order
are void, Storer need not show lack of an adequate appellate remedy, and
mandamus relief is appropriate. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.
2000) (orig. proceeding) (per curiam) (citing In re Dickason, 987 S.W.2d 570, 571
(Tex. 1998)). 4 Nevertheless, at this point in time, there will never be a final order
to appeal on the Probate Com1's seizure of K. McAfee's social security benefits
because there are no claims on file by the estate and because Storer can no longer
obtain a hearing with the Court. That is also why this proceeding is not subject to
an accelerated appeal, because there is no pending claim. See Texas Natural Res.
Conservation Comm 'n, 85 S.W.3d 201, 206-07 (Tex. 2002) (orig. proceeding)
(holding mandamus was available when "a restraint on conduct ... has yet to be
subject to a truly adversarial proceeding"); See In re Pierce, 2012 WL 3525638, at
4
See also In re Pierce, No. 13-12-00125-CV, 2012 WL 3525638, at *4 (Tex. App.-Corpus
Christi Aug. 10, 2012, orig. proceeding) (mem. op.) ("temporary injunctions which do not
comply with 683 are void, and when the trial court's order is void, mandamus relief is available
regardless of whether there is an adequate remedy by appeal"); In re Mask, 198 S.W.3d 231,233
(Tex. App.-San Antonio 2006, orig. proceeding) (concluding that when an order is void, then
"mandamus relief is available regardless of whether there is an adequate remedy by appeal") .
PAGE 15
*4 (writ of mandamus may be appropriate for reviewing a temporary injunction)
(citing In re Francis, 186 S.W.3d 534,538 (Tex. 2006)).
There are also significant benefits to mandamus relief in this matter, due to
the federally mandated protection provided to K. McAfee's social security
benefits, which would be rendered moot absent review by mandamus. 5 The
Probate Court has seized money that it had previously declared to be K. McAfee's
social security benefits. The United States legislature and Supreme Court have
made it painstakingly clear that social security proceeds are prohibited from
seizure in the legal process, regardless of the merits of the claim, including
community property claims. The Probate Court's rulings defeat the purpose of
these laws and place Storer in the position of having to continuously re-litigate the
exempt status of his social security benefits. Appellate remedy would be
inadequate for K. McAfee to protect his social security funds, even if the Court had
seized them with jurisdiction and a proper order. Therefore, mandamus relief is
appropriate in this matter.
II. The Probate Court does not have jurisdiction to act without a pending
cause of action.
According to arguments of the Foltyns and the Estate's counsel, the only
reason they sought to keep the temporary injunction in place was due to alleged
5
See In re Pierce, 2012 WL 3525638, at *4 (discussing the benefits of mandamus relief when
there are other claims raised which would be rendered moot if not reviewed by mandamus).
PAGE 16
community property claims the Estate may have against K. McAfee. 6 But without
any live pleadings on file, the Probate Court lacks jurisdiction to take any action in
this case, including the issuance of injunctive relief or taking control of an
individual's assets to hold in the registry of the Court for the benefit of someone
else.
Texas Estates Code section 402.001 states that after the inventory has been
approved in an independent administration, the Probate Court can take no further
action of any nature unless specifically provided for by the Texas Estates Code.
See also State v. Traylor, 374 S.W.2d 203, 204 (Tex. 1963) (probate court has only
that jurisdiction conferred upon it by the Probate Code).
The probate court is then vested with substantial "potential jurisdiction" to
hear almost any issue involving the estate or the personal representative, even
matters related to the settlement and partition of an estate. Cunningham v.
Parkdale Bank, 660 S.W.2d 810, 812 (Tex. 1983); TEX. ESTATES CODE§§ 32.001,
31.001, 31.002. The probate court can even have the power to determine
community property claims, characterize separate and community property
interests, and order the surrender of property held by a party to the suit. Smith v.
Lanier, 998 S.W.2d 324, 332, 336 (Tex. App.-Austin 1999, pet. denied) (probate
6
Tab 8, at p. 3, Ins. 20-25; at p. 4, Ins. 1-7; at p. 5, Ins. 5-l 0; at p. 5, Ins. 14-19; at p. 8, Ins. 2-4;
at p. 11, Ins. 4-16; at p. 17, Ins. 18-25; at p. 18, Ins. 1- 24; Tab 12, at p. 3, Ins. 13-22; at p. 6, Ins.
10-25; at p. 7, Ins. 1-6; at p. 8, Ins. 16-25; at p. 9, Ins. 1-7; at p. 9, Ins. 21-25; at p. 10, Ins. 1-21;
at p. 12, Ins. 1-25; at p. 13, Ins. 1-6; at p. 15, Ins. 4-25; at p. 16, ln. 1; Tab 15, at p. 10, Ins. 1-21;
at p. 10, Ins. 7-24; at p. 11, Ins. 10-16; at p. 14, Ins. 16-25.
PAGE17
court can issue injunction against survivor's separate property pending declaratory
judgment action); Lucikv. Taylor, 596 S.W.2d 514,516 (Tex. 1980) (probate court
can issue injunction over estate property pending contest to administration).
But there is no authority for a court to act on estate issues sua sponte. A
probate court's potential jurisdiction is "activated and becomes actual jurisdiction"
only after the filing of a petition, the subject matter of which is within the
jurisdiction of the court. Cunningham, 660 S.W.2d at 812 (probate court did not
have jurisdiction to enter judgment against independent administrator based solely
on substance of final account; pleadings required). Just as in any other type case, a
party must invoke a probate court's jurisdiction by filing an application, petition,
motion, action, claim, cause of action, or request of some nature. See TEX.
ESTATES CODE§§ 31.001, 31.002.
Pleadings create the foundation of due process: they defiJ!.e the issues and
give the opposing party information sufficient to enable him to prepare a defense.
Cunningham, 660 S.W.2d at 812-13 (citing Murray v. 0 & A Express, Inc., 630
S.W.2d 633, 636 (Tex. 1982); Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982)).
There is no exception simply because we are in probate court:
"The Texas Rules of Civil Procedure govern proceedings
in probate matters except in those instances in which a
specific provision has been made to the contrary.
Tex.R.Civ.P. 2. In Texas, '[a] civil suit in the district or
county court shall be commenced by a petition filed in
the office ofthe clerk.' Tex.R.Civ.P. 22." ld.
PAGE18
The Estate has no live pleadings in this case asking the Probate Court to do
anything or decide any matter. In fact, the Estate has never even asked the Court
to determine a marital property claim; it has only alluded throughout the hearings
that there may be claims. The Probate Court cannot provide the Estate any relief to
which it has not requested in writing. !d. at 813 ("a party may not be granted relief
in the absence of pleadings to support that relief').
This is because an independent administration is managed at the direction of
the personal representative, not by the probate court. The Texas Supreme Court
has explained that a probate court cannot take on duties of the independent
executor. In State v. Traylor, the independent executors asked the probate court to
order a partition and distribution, giving the decedent's widow a compromised
community property distribution, which they had chosen not to trace for economic
reasons, and which was opposed by the other beneficiary. 374 S.W.2d 203 (Tex.
1963). While a probate court has statutory authority to order a partition and
distribution, the executors were essentially asking for the court's stamp of approval
on their decision to not trace the community property interest, instead of just
approving the widow's claim (and facing suit) or having the widow's claim
established by judgment. !d. The Supreme Court said this was not something the
Court could do, even at an executor's request, and the executors must act on the
claim before coming to the Court for a partition and distribution.
PAGE 19
In the present case, the independent administrator must first act on its
alleged claim by filing a pleading seeking relief. The Probate Court has no power
to seize or continue an injunction over K. McAfee's assets until after the Estate has
acted.
The fact that the Estate has no pleadings on file was argued by Storer
multiple times:
1. January 8, 2015 hearing:" ... there's nothing to intervene in, because there
is no pending action." Tab 7, at p. 10, Ins. 7-12.
2. January 22, 2015 hearing: " ... I can't even learn what the base lawsuit is
that the Temporary Injunction was filed for." Tab 8, at p. 7, Ins. 1-5.
3. May 14, 2015 hearing: "this Temporary Injunction that everyone IS
talking about and relying on, you know has been going on for a very long
time without a cause of action, without a trial date. It's basically an
agreement for everyone to have a standstill. And that's fine. We intend
to honor it. But it's time to separate these parties." Tab 15, at p. 7, Ins.
3-5.
With no pleadings on file, the injunction should be dissolved entirely. It is
however, even more serious that a portion ofK. McAfee's social security benefits
were ordered to be turned over to the Clerk for the use and benefit of the Estate of
Janet Foltyn McAfee. The Probate Court's taking of the $34,898.58 from K.
PAGE 20
McAfee's social security account IS essentially a further injunction with no
pleadings on file and no jurisdiction.
Therefore, the temporary injunction should be dissolved and the May 18,
2015 Order should be set aside for lack of jurisdiction.
III. Without a pending cause of action, the June 8, 2011 temporary
injunction and the May 18, 2015 Order are void.
The lack of pleadings makes the temporary injunction void in its entirety, as
well as the May 18, 2015 Order that directs Woodforest to turn over $34,898.58 to
the registry of the court. The parties can enter an agreement outside of Court to
freeze the remaining assets, but the temporary injunction, especially in this new
form, has been taken too far.
"A temporary injunction's purpose is to preserve the status quo of the
litigation's subject matter pending a trial on the merits." Butnaru v. Ford Motor
Company, 84 S.W.3d 198, 204 (Tex. 2002). "To obtain a temporary injunction,
the applicant must plead and prove three specific elements: (1) a cause of action
against the defendant; (2) a probable right to the relief sought; and (3) a probable,
imminent, and irreparable injury in the interim. Id. The Estate has no cause of
action on file against K. McAfee, and, even if it did, there is no probable right to
the relief sought because the facts are what they are. The evidence that has already
been considered will always yield the same result-that all of the money in the
Woodforest account is federally protected social security proceeds.
PAGE 21
Texas Rule of Civil Procedure 683 further states that "every order granting a
temporary injunction shall include an order setting the cause for trial on the merits
with respect to the ultimate relief sought." This requirement is mandatory and
must be strictly followed, or else the order is subject to being declared void and
dissolved. Qwest Commc 'ns Corp., 24 S.W.3d at 337 (Tex. 2000); InterFirst Bank
San Felipe, 715 S.W.2d at 641 (Tex. 1986). An error of such kind is so critical
that it has been held by many Texas appellate courts as "fatally defective and void,
whether specifically raised by point of error or not." 7
The Estate sought a temporary restraining order in the estate administration
cause (396,935) to preserve its community property interests and anticipated
recovery from the wrongful death proceedings pending against K. McAfee in the
ancillary cause (396,935-401). Tab 18. The Estate's Application states, "the
nature of the lawsuit is Probate, with an additional wrongful death suit pending."
Tab 18, at p. 2, ~5. The June 8, 2011 Agreed Order for Temporary Injunction also
states:
7
EOG Res., Inc. v. Gutierrez, 75 S.W.3d 50, 52-53 (Tex. App.-San Antonio 2002); Evans v. C.
Woods, Inc., 34 S.W.3d 581, 582-83 (Tex. App.-Tyler 1999, no pet.); Big D Props., Inc. v.
Foster, 2 S.W.3d 21, 23 (Tex. App.-Fort Worth 1999, no pet.); 360 Degree Commc'ns Co. v.
Grundman, 937 S.W.2d 574, 575 (Tex. App.-Texarkana 1996, no writ).
PAGE22
"this Temporary Injunction Order ... shall continue in
force and effect until the Court makes a determination
of what property belongs to the Estate or the Court
renders a full and final judgment is in the pending
wrongful death suit associated with this matter,
whichever is later, or by further order of this Court."
Tab 1, at p. 9 of 10.
A full and final judgment was entered in the wrongful death suit on March
21, 2014. Tab 2. The Court, however, has made clear that the injunction remains
in effect in the estate administration until a determination of what property belongs
to the Estate has occurred. Tab 17, last paragraph.
Whether the temporary injunction has ever been effective in the past may be
a moot issue. The temporary injunction was filed only in the estate administration,
where no pleadings were ever filed. On January 22, 2015, the parties argued over
whether the order on the garnishment proceeding (395,835-401) should require a
release of the temporary injunction in the estate administration. Tab 8, at p. 3, Ins.
20-25; at p. 4, Ins. 1-7; at p. 8, Ins. 2-4; at p. 9, Ins. 14-17; at p. 11, Ins. 4-16.
Storer argued to release the temporary injunction:
"The other thing, Judge, is I don't even think there is a
Temporary Injunction in place. I think everyone has
honored it because everyone understood what the intent
was of the parties and the intent of the Court but I can't
even learn what the base lawsuit is that the Temporary
Injunction was filed for. It's my understanding also that
there is no ending to the Temporary Injunction and the
only way one can be valid is if there is a final trial date
that says on this date this Temporary Injunction ends and
PAGE 23
will either go away or tum into a Permanent Injunction.
So I believe there is not even a Temporary Injunction in
place. I will go along with what's been going on but we
were here two weeks ago and the issue garnishment was
decided. That's over. The only thing that needed to be
added was to make the payment to Mr. Blumrosen and/or
his client. That's been done. And so this is the Proposed
Order that covers both parties and both banks in the
garnishment proceeding."
Tab. 8, at p. 6, ln. 25; at p. 7, Ins. 1-16; at p. 14, Ins. 15-19. Regardless of how the
estate administration and wrongful death proceedings were intertwined, today there
are clearly no actions being pursued in any cause against K. McAfee. This makes
the temporary injunction fatally void and it should be dissolved. TEX. R. CIV. P.
683.
Additionally, "Probate" is not a cause of action. Probate is a general
description for all matters or proceedings that relate to a decedent's estate. TEX.
ESTATES CODE§ 22.029.
The Texas Supreme Court has clarified, "the issue in determining whether
an applicant has met the first qualification for a temporary writ of injunction is not
whether the prayer seeking the writ and the ultimate cause of action is 'related,' but
whether the applicant has a cause of action at all." Walling v. Metcalfe, 863
S.W.2d 56, 58 (Tex. 1993) (per curiam) (considering whether applicant's live
pleadings supported the temporary injunction). With no cause of action at all on
PAGE 24
file, there is no matter to set for trial and the injunction in whatever form it has
now taken, must be dissolved.
And if there were a cause of action on file, the reason for strict compliance
m setting a trial date "is to prevent the temporary injunction from becoming
effectively permanent, without a trial having occurred." Eastern Energy, Inc. v.
SBY P'ship, 750 S.W.2d 5, 6 (Tex. App.-Houston [1st Dist.] 1988). Such would
be contrary to the purpose and procedure of obtaining a temporary injunction, yet
this is exactly what has happened in this case, because a determination of all Estate
property may never occur.
Therefore, the temporary injunction should be dissolved and the May 18,
2015 Order should be set aside for being void.
IV. Collateral Estoppel and Res Judicata bar re-tracing of the Woodforest
account.
Even if the Probate Court were to obtain jurisdiction to enjoin or take control
over K. McAfee's assets, the Woodforest account cannot be subject to any further
authority of the Probate Court because the funds have already been traced and
found to be solely K. McAfee's social security benefits. Tab 9; Tab 14, at p. 6-8.
Since the Estate can have no claim against K. McAfee's social security benefits, all
of such assets must be released to K. McAfee.
The well-known case of Barr v. Resolution Trust Corp. describes "res
judicata" as a generic term for two types of conclusive effects given to final
PAGE 25
judgments: res judicata precludes relitigation of claims, and collateral estoppel
prevents relitigation of particular issues. 837 S.W.2d 627, 628 (Tex. 1992). This
mandamus involves both.
The Estate would like the Court to believe that the garnishment proceedings
were completely separate from the Estate's purported community property claims
in the estate administration. Tab 12, at p. 8, Ins. 16-25; Tab15, at p. 11, Ins. 22-25;
at p. 12, Ins. 1-3. This, however, is not accurate. First, the issue of tracing the
Woodforest account was actually litigated in the garnishment proceeding
(collateral estoppel). Second, the Estate should have brought its claims against
Kenneth McAfee for the funds in the Woodforest account during the garnishment
proceedings (res judicata).
1. Collateral Estoppel
The doctrine of collateral estoppel or issue preclusion is designed to promote
judicial efficiency, protect parties from multiple lawsuits, and prevent inconsistent
judgments by precluding the relitigation of issues a party previously litigated and
lost. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994);
Quinney Elec., Inc. v. Kondas Entm 't, Inc., 988 S.W.2d 212, 213 (Tex. 1999) (per
curiam). "A party seeking to assert the bar of collateral estoppel must establish
that ( 1) the facts sought to be litigated in the second action were fully and fairly
litigated in the first action; (2) those facts were essential to the judgment in the first
PAGE 26
action; and (3) the parties were cast as adversaries in the first action." Sysco Food
Servs., Inc., 890 S.W.2d at 801. "Fairness" may also be considered, but it is
narrowly applied in only the most unique circumstances. !d. at 805.
Collateral estoppel can apply even if the causes of action are different in the
first and second proceedings. Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575,
577 (Tex. 2001) (criminal defendant was convicted of fleeing and attempting to
elude a police officer; because the issue of whether she faced imminent harm was a
fact that was litigated in her criminal trial, she was barred from bringing a civil
action for assault against the officer who tried to stop her). "If a cause of action in
the second lawsuit involves an element already decided in the first lawsuit, that
cause of action is barred" if the issue decided in the first action was actually
litigated, essential to that lawsuit's judgment, and is identical to the issue in the
pending action. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962
S.W.2d 507, 521 (Tex. 1998).
Element 1: the facts sought to be litigated in the second action are
identical to the facts litigated in the first action
"Collateral estoppel applies when an issue decided in the first action is
actually litigated." Tex. Dep't of Pub. Safety, 44 S.W.3d at 579. "Actually
litigated" means the issue was properly raised (by pleadings), submitted for
determination, and determined. Johnson & Higgins of Tex., Inc., 962 S.W.2d at
521. The issues must be identical and must have been fully and fairly litigated.
PAGE 27
State & Cty. Mut. Fire Ins. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001); Tex. Dep't
ofPub. Safety, 44 S.W.3d at 579.
What the Estate is seeking now is identical to what was before the Court in
the garnishment proceedings, a tracing of the Woodforest account. The tracing
that was necessary to establish protection in the garnishment proceedings is the
very same tracing that would be necessary to prove the Woodforest account is
solely K. McAfee's social security benefits. Tex. Dep 't of Pub. Safety, 44 S.W.3d
at 577 (collateral estoppel applied because same facts were necessary to prove first
and second claims).
In the garnishment proceedings, Storer sought to quash two writs the Foltyns
had obtained, one against a 401(k) Savings Plan and one against a social security
account. Tab 4. Both accounts needed to be established as exempt accounts in
order to quash the writs. While the funds in the 401(k) were protected merely by
being in a tax-deferred retirement account, 8 the social security funds were held in
an ordinary checking account and Storer had to show that every penny in the
Woodforest account was attributed to his social security benefits. Tab 4, at rs 22-
25 (regarding need to trace comingling of social security benefits). Had there been
8
TEX. PROP. CODE§ 42.0021(a); see also Tab 4, at p. 13, footnote 12: Unlike with social security
benefits, it is the account that is exempt; the source of the funds is irrelevant. Lozano v. Lozano,
975 S.W.2d 63, 68 (Tex. App.-Houston [14th Dist.] 1998, pet. denied).
PAGE 28
any funds that were not social security benefits, those funds would have been
subject to garnishment. Tab 4, at 'if 23.
The nature of the Woodforest funds was plead in Storer's Motion to Quash,
which also provided copies of the bank statements, and an account detail sheet
showing the source of all deposits and withdrawals. Tab 4, at Exhibits A, B.
Storer agreed the tracing rules in his Motion, and identified the funds all as coming
exclusively from the Social Security Administration. Tab 4, at 'if 25.
At the first hearing on January 8, 2015, the Foltyns did not challenge the
protected status of a person's 401(k) or social security benefits, but argued that
they did not have sufficient information to determine the character of the funds at
issue due to outstanding discovery requests. Tab 7, at p. 4, lns. 1-9; at p. 5, lns. 2-
17; at p. 6, Ins. 9-20; at p. 8, Ins. 12-25; at p. 9, Ins. 1-24. The Probate Court reset
the matter for two weeks to specifically allow time for exchanging information.
Tab 7, at p. 27, Ins. 5-6.
On January 22, 2015, the parties and the Estate returned. Tab 8. Again,
quashing the writs on the two accounts was never challenged. Tab 8; at p. 3, Ins.
5-7. However, because Storer sought to include language in the proposed order to
also release the temporary injunction as to the two accounts, the Foltyns and the
Estate resisted, in order to preserve the Estate's potential community property
claims against the 401(k). Tab 8, at p. 3, Ins. 20-25 through at p. 4, Ins. 1-7; at p.
PAGE29
5, Ins. 5-10; at p. 5, Ins. 14-19; at p. 8, Ins. 2-4; at p. 9, Ins. 14-15; at p. 11, Ins. 4-
16; at p. 14, Ins. 15-19; at p. 17, Ins. 18-25, at p. 18, Ins. 1-24.
At both hearings, no one challenged the character of the funds that made up
the Woodforest social security account (see Tab 7 and Tab 8); this was not done
until months after the Court signed the January 27, 2015 Order. See Tab 12 and
Tab 15. Had any contrary evidence been offered, Storer could have orally argued
his tracing evidence that was filed in his Motion to Quash Writs of Garnishment
because that was the very subject matter of that hearing, to prove that all funds in
the Woodforest account were social security benefits. Tab 7, at p. 5, Ins. 12-15.
But the Foltyns specifically said that was not necessary (Tab 7, at p. 5, Ins. 16-17)
and the Estate raised no issues as to Storer's accounting (Tab 8, at p. 18, Ins. 13-
23).
Based upon the patties' pleadings and arguments, the Probate Court
detetmined that the Woodforest account contained only K. McAfee's social
security benefits and signed the January 27, 2015 Order:
"On this day came to be considered the Motion to Quash
Writs of Garnishment filed by Charles Storer, Power of
Attorney for Kenneth Cooper McAfee. After review and
consideration of said Motion, the evidence, the responses,
and the arguments of counsel, the Court finds the
following:
PAGE 30
5. The Woodforest account ending in 404 holds,
exclusively, social security benefit proceeds of
Kenneth C. McAfee which benefits are exempt
from garnishment under 42 U.S.C. 407. 42 U.S.C.
407 provides an absolute exemption and there are
no statutory exceptions to same. Because the
Woodforest account ending in 404 contains only
funds exempted from garnishment, the writ
directed at Woodforest as to Kenneth McAfee's
account ending in 404 should be quashed."
Tab9.
The Estate now questions the characterization of two deposits that were
made into the Woodforest social security account and that were identically
withdrawn from the account days later, arguing these might be deposits of
community property and withdrawals of social security funds that would give the
Estate a one-half interest in the deposits of community property depending on what
method of tracing is used (first in/first out, or last in/first out). Tab 12, at p. 3, Ins.
13-22; at p. 6, Ins. 14-21; at p. 7, Ins. 1-6; at p. 7, Ins 14-21; at p. 8, Ins. 19-25; at p.
9, Ins. 7-9; at p. 9, Ins. 21-25; at p. 10, Ins. 1-21; at p. 12, Ins. 1-25; at p. 13, Ins. 1-
6; at p. 15, Ins. 4-25; at p. 16, ln.1; Tab 15, at p. 10, Ins. 6-24; at p. 11, Ins. 1-16; at
p. 14, Ins. 18-25. This is a tracing issue that has already been litigated and
determined by the Court. Tab 9 and Tab 12 at p. 7, Ins. 14-22; at p. 11, Ins. 21-25;
Tab 15, at p. 4, Ins. 2-19; at p. 5, Ins. 1-9; at p. 5, Ins. 17-19; at p. 6, Ins. 4-10; at p.
7, Ins. 17-25; at p. 7, Ins. 17-25; at p. 8, Ins. 1-25; at p. 9, Ins. 1-17; at p. 13, lns.
13-17; at p. 15, Ins. 1-9; at p. 16, Ins. 3-25; at p. 17, lns. 1-14.
PAGE 31
Storer does not dispute the 401(k) is funded with some community property.
But the social security benefits are federally protected separate property, so there is
nothing left to fight over. 42 U.S.C. 407; Tab 15, at p. 15, Ins. 10-14; at p. 15, Ins.
22-25; at p. 16, Ins. 1-25; at p. 17, Ins. 1-17. To have this fight again (to trace the
Woodforest social security account) would require an identical trial to the one
already had, with the exact same tracing evidence and burden of proof (Sysco Food
Servs., Inc., 890 S.W.2d at 802 (in considering collateral estoppel, similarity of
each action's burden of proof was a factor));it would just be for a different
purpose, but with the same result as to the Woodforest assets.
Although Storer's tracing evidence was not challenged in the garnishment
proceeding, that does not mean the issue was not actually litigated. "Actually
litigated" does not require a contested proceeding, but merely that the issue was
pled, considered and decided. Johnson & Higgins ofTex., Inc., 962 S.W.2d at 521.
These criteria have all been met. The transcripts show that it was put before the
Court by all counsel, repeatedly, and that there was no issue that the Woodforest
account contained anything other thanK. McAfee's social security benefits. The
Estate specifically said, "the two issues, which one we could see, the Woodforest,
is that's all SSI money. My client has no claim to that. We can see that. As long
as that's an accurate statement, it's all SSI." Tab 8, at p. 18, Ins. 13-25, at p. 19,
line 1; Tab 4, Exhibit A & B.
PAGE 32
In Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., the Supreme
Court considered "fully and fairly litigated" and rejected a party's argument that
they had no real incentive in the first action to develop their claims in the second
action. 962 S.W.2d 507, 525 (Tex. 1998). When the plaintiff lost a significant
portion of his profits in oil he was transporting across the Atlantic, he used his
insurance agent as a witness to recover from another insurance company based on
agreements that had been discussed between multiple insurance companies to
insure the cargo. Id. at 511-513. As to at least one claim, the Supreme Court
found that the testimony of the plaintiffs insurance agent supported the court's
detennination that there were no insurance agreements for the extra loss coverage
the plaintiff was seeking. I d. at 524. The plaintiff was later barred from suing his
own insurance company because the issue had already been decided that there
were no valid insurance agreements for the extra loss coverage. Id. The plaintiff
argued that had he known he would be precluded from suing his own insurance
company, he would have further developed the testimony to prove his insurance
agent represented to him that he was covered. Id. at 525. The Supreme Court said
he had missed his chance because he had every incentive in the first suit to
establish an agreement since his claims in the first suit depended on that
agreement. Id. Likewise, the Estate's purported community property claims to the
Woodforest account depend 100% on what type funds are in the account. The
PAGE 33
tracing was just as essential to the garnishment proceeding as it is to the Estate's
purported community property claims. The Estate's agreement and/or inaction
when the issue of tracing was before the Court precludes the Estate's later
developed arguments.
Additionally, in Rexrode v. Bazar, collateral estoppel was applied even in a
situation where no evidence was ever admitted. 937 S.W.2d 614 (Tex. App.-
Amarillo 1997, no writ). A plaintiff sued a defendant for negligence and also sued
his own insurance company under the uninsured/underinsured motorist provision
of his auto insurance policy. Id. at 615-16. When the insurance company failed to
answer requests for admissions, the plaintiff nonsuited his case against the
defendant and went to trial against the insurance company. ld. at 616. At trial, the
plaintiff offered only the deemed admissions. ld. at 617-18. The insurance
company was granted leave to prepare responses to the requests for admissions.
ld. at 618. The plaintiff rested. ld. The insurance company prepared responses,
and the Court withdrew the deemed admissions. Jd. The Court then issued a
directed verdict against the plaintiff, having rested with no evidence. Jd. The
plaintiff was later bmred from bringing suit against the original defendant because
he had "failed to prevent the issue ... from being submitted for determination and
determined adversely to him. That being so, the issue was "actually litigated" in
the first suit." ld. at 620. That is exactly what has happened in this case-the
PAGE 34
Estate's agreement and/or inaction failed to prevent the tracing issue from being
submitted for determination and determined adversely to their current purported
claims, if any. The opportunity to fully and fairly litigate the issue of tracing
existed, but the Estate chose not to act. This opportunity is all that is required. See
Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex. 1990) (collateral
estoppel applies when the party against whom it is asserted had a full and fair
opportunity to litigate the issue in the prior suit).
Because the issue of tracing the Woodforest social security account was
actually litigated, fully and fairly, and is identical to the claims the Estate makes
now, the first element of collateral estoppel has been met.
Element 2: those facts were essential to the judgment in the first action
When the Probate Court examined whether or not the Woodforest social
security account should be exempt from garnishment, the sole issue was the nature
of the funds in the account. It may be redundant to keep saying that it was already
established and unopposed that the funds were 100% K. McAfee's social security
benefits. Tab 9 and Tab 12 at p. 7, Ins. 14-22; at p. 11, Ins. 21-25; Tab 15, at p. 4,
Ins. 2-19; at p. 5, Ins. 1-9; at p. 5, Ins. 17-19; at p. 6, Ins. 4-10; at p. 7, Ins. 17-25; at
p. 7, Ins. 17-25; atp. 8, Ins. 1-25; atp. 9, Ins. 1-17; atp. 13, Ins. 13-17; atp. 15, Ins.
1-9; at p. 16, Ins. 3-25; at p. 17, Ins. 1-14. But there was simply no other purpose
to the garnishment proceeding in regards to the Woodforest account other than to
PAGE 35
trace the funds, which is exactly what the Estate seeks to do again. See above,
Johnson & Higgins of Tex., Inc., 962 S.W.2d at 525 (establishment of insurance
agreement was essential to first claim against 3rd party insurance company;
plaintiff could not bring action against his own insurance company because court
already found there was no insurance agreement).
Because the issue of tracing was essential to the Probate Court's January 27,
2015 Order, the second element of collateral estoppel has been met.
Element 3: the parties were cast as adversaries in the first action
All parties involved today also participated in the garnishment proceeding
that resulted in the January 27, 2015 Order.
The parties in the estate administration proceedings are K. McAfee, the
Estate, and the Foltyns, individually, who are participating herein as interested
parties. Tab 18.
The garnishment proceeding did not originally involve the Estate; it
involved only K. McAfee and the Foltyns, individually, who sought to recover on
their wrongful death judgment. Tab 3. However, the Estate made a voluntary
appearance in the garnishment proceeding by filing a Notice to Court in which the
Estate objected to Storer's Motion to Quash and claimed an interest in the two
accounts Storer sought to protect from garnishment. Tab 5; Tab 7, at p. 9, Ins. 1-8.
The Estate further participated in the garnishment hearings, not challenging the
PAGE 36
quashing of the writs, but alluding to their community property claims that might
exist post-garnishment. Tab 7, at p. 8, Ins. 15-25; at p. 9, Ins. 1-2; Tab 8, at p. 2; at
p. 5, Ins. 5-10, Ins. 16-18; at p. 12, Ins. 10-17; at p. 17, Ins. 21-24; at p. 18, Ins. 18-
23.
Regardless of what happened thereafter, it cannot be disputed that all parties
involved today actually participated in the garnishment proceedings that (1)
considered the tracing of the Woodforest social security account and (2) resulted in
the January 27, 2015 Order. 9
Because the same parties were cast as adversaries in the garnishment
proceeding, the third element of collateral estoppel has been met.
Consideration of Fairness
The nature of the wrongful death proceeding is not a factor the court can
consider in deciding whether to apply collateral estoppel. Fairness factors involve
unique procedural and evidentiary burdens that defeat the design of collateral
estoppel, and that are not caused by the party seeking to avoid the preclusive effect
9
Nevertheless, collateral estoppel does not even require direct participation by the Estate, only
that the Estate be in privity with the Foltyns. Tex. Dep 't of Pub. Safety, 44 S.W.3d at 577; Sysco
Food Servs., Inc., 890 S.W.2d at 801; Eagle Props., Ltd., 807 S.W.2d at 721. Privity cannot be
disputed because the Estate and the Foltyns both share interests in the Woodforest account that
are directly affected by its tracing. See Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363
(Tex. 1971). They are merely acting in two different capacities, individually and as beneficiaries
of the Estate, to recover the same interests under different theories of recovery. See Robbins v.
HNG Oil Co., 878 S.W.2d 351, 357-58 (Tex. App -Beaumont 1994, writ dism'd w.o.j.)
(Robbins as attorney-in-fact in second suit was certainly in privity with Robbins, individually, in
first suit).
PAGE 37
of a prior judgment. See Sysco Food Servs., Inc., 890 S.W.2d at 804-05 (party was
prevented from filing all of their claims in one suit by case law that has
subsequently been overruled by statute; procedural predicament is not of their own
making; then holding is narrow, given the unusual procedural posture of the case);
Phillips v. Allums, 882 S.W.2d 71, 75 (Tex. App.-Houston [14th Dist.] 1994, writ
denied) (because party was nonsuited, party was deprived of the opportunity to
litigate; "Mary Carter" agreements violate public policy). None of these type
.c:
1actors •
are present m th"IS case. 10
2. Res Judicata
Res judicata precludes relitigation of claims that have been finally
adjudicated, and claims that arise out of the same subject matter that could have
been litigated in the prior suit. Barr v. Resolution Trust Corp., 837 S.W.2d 627,
628, 631 (Tex. 1992). The elements of res judicata are: (1) a prior final judgment
on the merits by a court of competent jurisdiction; (2) identity of parties or those in
privity with them; and (3) a second action based on the same claims as were raised
or could have been raised in the first action." Amstadt v. US. Brass Corp., 919
S.W.2d 644, 652 (Tex. 1996); see also Houtex Ready Mix Concrete & Materials v.
10
See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 330-31 (1979) (noting when offensive
collateral estoppel may be unfair); Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 7 (Tex. 1986)
(holding when fairness factors are applicable); Goldstein v. Comm 'nfor Lawyer Discipline, 109
S.W.3d 810, 813 (Tex. App.-Dallas 2003, pet. denied) (observing the factors when offensive
collateral estoppel may be applied); Tankersley v. Durish, 855 S.W.2d 241, 245-46 (Tex. App.-
Austin 1993, writ denied) (noting applicable fairness factors).
PAGE 38
Eagle Canst. & Envtl. Servs., L.P., 226 S.W.3d 514, 519 (Tex. App.-Houston [1st
Dist.] 2006, no pet.).
Element 1: there is a final judgment on the merits
The January 27, 2015 Order is a final judgment on the merits of tracing the
Woodforest social security account. Tab 15, at p. 6, Ins. 4-10. It specifically and
correctly states, "the Woodforest account ending in 404 holds, exclusively, social
security benefit proceeds of Kenneth C. McAfee." Tab 9.
The wrongful death and estate administration claims, if any, are and/or will
be separate actions. In the wrongful death action, a final judgment was entered
against K. McAfee on March 21, 2014, that disposed of all parties and was
appealable. Tab 2. The Foltyns' Application for Writ of Garnishment was initiated
in the wrongful death proceeding on October 9, 2014 to collect on the judgment.
Tab 3. The Probate Court had jurisdiction over the garnishment proceedings
because there were garnishment pleadings and notices (Tab 3), not because the
wrongful death action was on-going. Thereafter, Storer's Motion to Quash Writs
of Garnishment was filed in the garnishment proceeding and the Probate Court
properly acted on those pleadings after two hearings on the merits. Tab 9.
When the Probate Court signed the January 27, 2015 Order Partially
Granting Motion to Quash Writs of Garnishment, there were no more issues
pending in the garnishment proceeding, however the Court did direct the
PAGE 39
temporary injunction to be lifted as to the GMS accounts in favor of the Foltyns,
even though the temporary injunction was in a separate proceeding. Tab 9, at p. 3.
(The remaining accounts were still subject to the temporary injunction in the
separate estate administration cause, just as they were before the Foltyns'
Application for Writ of Garnishment was filed.) On March 16, 2015, the Probate
Court signed its Order Partially Releasing Temporary Injunction in regards to the
GMS accounts in favor of the Foltyns, (Tab 9), and the January 27, 2015 became
final as it disposed of all issues and parties in the garnishment proceeding.
This January 27, 2015 judgment was never appealed, and cannot be appealed
now. The judgment is also not interlocutory because "a probate order is final if it
adjudicates a substantial right and disposes of all issues in the phase of the
proceeding for which is was brought, even though multiple judgments final for
purposes of appeal can be rendered on certain discrete issues." Crowson v.
Wakeham, 897 S.W.2d 779, 781-82 (Tex. 1995); Lehmann v. Har-Con Corp., 39
S.W.3d 191, 192-93 (Tex. 2001); Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex.
App.-Austin 2000, pet. denied) ("An order rendered in a probate proceeding need
not finally dispose of the entire proceeding ... A probate proceeding consists of a
continuing series of events, in which the probate court may make decisions at
various points in the administration of the estate on which later decisions will be
based."). Although the Estate Independent Administration is still open (without
PAGE40
Court supervision), the January 27, 2015 Order resolved all issues and pleadings in
the garnishment proceeding, in which it participated. Therefore, even if the
garnishment proceeding had been tied to the Estate administration, which it was
not, this phase of the garnishment proceeding has been disposed of and is final,
even though the Estate independent administration may continue.
Because there is a final judgment on the merits of tracing the Woodforest
account, the first element of res judicata has been met.
Element 2: same parties
As discussed above, the same parties involved today actually participated in
the garnishment proceedings that resulted in the January 27, 2015 Order, and the
Estate is "in privity" with the Foltyns. See collateral estoppel, element 3 above.
Because the same parties are involved in both proceedings, the second
element of re judicata has been met.
Element 3: same claims
Res judicata provides broader relief than collateral estoppel since it allows
preclusion of claims that not only were adjudicated, but claims that could have
been litigated in the prior suit. Rexrode, 937 S.W.2d at 616 ("unlike the broader
res judicata doctrine, collateral estoppel analysis does not focus on what could
have been litigated, but what was actually litigated").
PAGE 41
"A subsequent suit will be barred if it arises out of the same subject matter
of a previous suit and which through the exercise of diligence, could have been
litigated in a prior suit." Barr, 837 S.W.2d at 631. "A determination of what
constitutes the subject matter of a suit necessarily requires an examination of the
factual basis of the claim or claims in the prior litigation. It requires an analysis of
the factual matters that make up the gist of the complaint, without regard to the
form of action. Any cause of action which arises out of those same facts should, if
practicable, be litigated in the same lawsuit." !d. at 630.
The Barr standard "is substantially similar to the rule of compulsory
counterclaims embodied in the rules of civil procedure. A party defending a claim
must bring as a counterclaim any claim that "arises out of the transaction or
occurrence that is the subject matter of the opposing party's claim." !d.; TEX. R.
CIV. P. 97.
While the issue of tracing was actually litigated on more than one occasion,
the Estate still has never filed its community property claims. The garnishment
proceeding was the proper time to have brought such claims. As discussed above,
the issue in the garnishment proceeding was to trace the funds in the Woodforest
account as solely K. McAfee's social security benefits in order to protect the entire
account from garnishment. The Estate's purported claim seeks to re-trace the
funds in the Woodforest account to see if the funds are all K. McAfee's social
PAGE42
security benefits, or if the funds have been comingled with community property.
While the purpose for tracing may be different, the issues, facts and evidence that
make up both claims are identical-what is the character of the funds in the
Woodforest account?
The issue of the Estate's potential community property claims was known
and discussed in the garnishment proceedings. Tab 7, at p. 8, lns. 15-25; Tab 8, at
p. 4, lns. 1-7; at p. 5, lns. 5-19; at p. 8, lns. 2-4; at p. 9, lns. 14-19; at p. 11, Ins. 4-
16; at p. 12, lns. 10-25; at p. 13, lns. 1-11; at p. 14, lns. 15-19; at p. 17, Ins. 18-25;
at p. 18, Ins. 1-24. The Estate argued for the protection of its community property
claims against the 401(k) account, yet made no mention of potential claims to the
social security account. Tab 8. Knowing that tracing in the garnishment
proceeding directly affected the Estate's community property interests, the Estate
had the burden to bring its claim at the time the issue of tracing was first before the
Court. It is not enough to merely say they want to litigate the claims in the future.
Because the same claims that the Estate alleges now could have been
litigated in the prior suit, the third element of res judicata has been met.
V. The Estate's claims cannot be satisfied from the Woodforest social
security account and continued obstruction of these funds violates due
process and constitutes an abuse of discretion.
K. McAfee's social security benefits are his separate, federally protected
property that cannot be used to satisfy the Estate's alleged community property
PAGE43
claims. 42 U.S.C. 407 ("none of the moneys paid or payable ... shall be subject to
execution, levy, attachment, garnishment, or other legal process .... "). Storer has
explained this protection provided by the Social Security Act, and its lack of
exceptions, in great detail. 11
The F oltyns and the Estate do not disagree that any funds that are social
security benefits are protected. See Tab 7, at p. 4, Ins. 1-6; Tab 8, at p. 18, Ins. 13-
18;seeTab 12,atp.3,Ins.15-17;atp.9,lns.1-7;atp.15,lns.ll-13;atp.17,Ins.
6-10; see Tab 15, at p. 14, Ins. 17-19; at p. 24, Ins. 16-18. Since the nature ofthe
funds in the Woodforest account have already been traced, and found to be social
security benefits, there is nothing left to fight over. If the Estate has claims, they
can only be satisfied from other accounts made up of community property assets of
Janet and K. McAfee, not from the Woodforest account that holds only K.
McAfee's social security benefits. Tab 15, at p. 9, Ins. 18-22; at p. 13, Ins. 1-17; at
p. 13, Ins. 2-25; at p. 14, lns.1-15; at p. 17, Ins. 8-11.
The Court's continued obstruction of these funds violates due process rights
and the supremacy clause. Dionne v. Bouley, 757 F.2d 1344, 1354 (1st Cir. 1985)
(social security account was exempt from attachment, procedural issues that
prevented access to the account violated due process right and perhaps even the
11
See Storer's Motion to Quash Writs of Garnishment, Tab 4, ~'s 11-29; Tab 7, at p. 5, Ins. 2-17;
at p. 11, Ins. 2-4; at p. 18, Ins. 9-23; Tab 8, at p. 5, Ins. 20-25; at p. 6, Ins. 1-24; Tab 14, at p. 9;
Tab 12 and Tab 15.
PAGE44
supremacy clause.) These violations are further reason why the May 18, 2015
Order should be set aside and the temporary injunction dissolved.
Last, the Probate Court has abused its discretion by failing to correctly
analyze and apply the law in regards to Storer's arguments of lack of jurisdiction,
no pleadings being on file, and no cause being set for trial. See In re Pierce, No.
13-12-00125-CV, 2012 WL 3525638, at *2 (Tex. App.-Corpus Christi Aug. 10,
2012, orig. proceeding) (mem. op.) (citing In re Cerberus Capital Mgmt., L.P., 164
S.W.3d 379, 382 (Tex. 2005) (orig. proceeding)) (court abuses its discretion "if it
reaches a decision so arbitrary and unreasonable as to amount to a clear and
prejudicial error of law or if it clearly fails to correctly analyze or apply the law.").
PRAYER
For the reasons stated above, Relator, respectfully requests that the Court
grant his Petition for Writ of Mandamus; direct the Honorable Loyd Wright to set
aside the May 18, 2015 Order on First Amended Motion for Reconsideration of
March 16, 2015, Order Partially Releasing Temporary Injunction, First Amended
Motion for Entry of Order Releasing Social Security Proceeds from Injunction and
Motion for Sanction; direct the Honorable Loyd Wright to dissolve the June 8,
2011 Agreed Order for Temporary Injunction, and grant Relator such other relief,
at law or in equity, to which Relator may be justly entitled.
PAGE45
Respectfully Submitted,
ANDERSON PFEIFFER, PC
Esther Anderson
SBN: 00792332
Robert Teir (of Counsel)
SBN: 00797940
845 FM 517 West, Suite 200
Dickinson, Texas 77539
Telephone: (281) 488-6535
Facsimile: (281) 488-0625
Email: esther@probateguardianship.com
Attorneys for Relator, Charles Storer,
Power of Attorney for Kenneth Cooper
McAfee
PAGE46
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the forgoing Petition for Writ
of Mandamus was delivered via the electronic service provider and/or certified
mail, return receipt requested on this 1st day of October, 2015, to all parties/and or
counsel of record:
cc: Honorable Loyd Wright
Judge, Probate Court No. 1
Harris County, Texas
201 Caroline, 6th Floor
Houston, Texas 77002
Dean M. Blumrosen, Esq.
4615 Southwest Freeway, Suite 850
Houston Texas 77027
Counsel for Rosemary Foltyn and Jake Foltyn
Mary Elizabeth Duff
21 0 Main Street
~chmond, Texas77469
Counsel for Rosemary Foltyn,
Administratrix of the Estate of Janet Foltyn McAfee, Deceased
Esther Anderson
PAGE47
CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)
This brief complies with the word limitation of Tex. R. App. P. 9.4 (i)
because the brief contains 10,912 words, excluding the parts of the brief exempted
by Tex. R. App. P. 9.4(i)(1).
This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e)
because it has been prepared in a proportionally spaced typeface using Microsoft
Word 2007 in 14 point Times New Roman font.
Dated: October 1, 20 15.
Esther Anderson
PAGE48
RULE 52.3(j) CERTIFICATION
I have reviewed the petition and concluded that every factual statement in
the petition is supported by competent evidence included in the appendix or record.
Esther Anderson
PAGE49
APPENDIX TO PETITION FOR WRIT OF MANDAMUS
1. Agreed Order for Temporary Injunction
2. Order
3. Application for Writ of Garnishment
4. Motion to Quash Writs of Gmnishment
5. Notice to Court
6. Response to Charles Storer's Motion to Quash Writs of Garnishment
7. January 18,2015 Transcript
8. January 22, 2015 Transcript
9. Order Partially Granting Motion to Quash Writs of Garnishment
10. Motion to Partially Release Temporary Injunction
11. Motion to Partially Release Temporary Injunction
12. March 12, 2015 Transcript
13. Order Partially Releasing Temporary Injunction
14. First Amended Motion for Reconsideration of March 16, 2015, Order
Partially Releasing Temporary Injunction, First Amended Motion for Entry
of Order Releasing Social Security Proceeds from Injunction and Motion for
Sanctions
15. May 14,2015 Transcript
16. Inventory, Appraisement and List of Claims
17. Order on First Amended Motion for Reconsideration of March 16, 2015
Order Partially Releasing Temporary Injunction, First Amended Motion for
Entry of Order Releasing Social Security Proceeds from Injunction and
Motion for Sanctions
18. Application for Temporary Restraining Order and Temporary Injunction
PAGE 50
TABl
Agreed Order for Temporary
Injunction
~··--""
06/08/2011 WBD 9:20 PAX 7132243111 Law Office ~002/0~1
06/07/2011 10:58 Mitchell & Duff Attorneys at Law (FAX)281341S517 P.002/011
D~BATE COURT 1
·~Jltrli'~Ji; 998~91 No. 396,935
IN THE ESTATE OF § IN THE PROBATE COURt
§
JANET FOLTYN MCAFEE, § N0.1
§
DECEASED § HARRIS COUNTY, TEXAS
AGBEED ORDER FOR TEMPORARY :INJUNCTION
On Maroh 31, 2011 the Application for a Temporary Restraining Ot·der of Rosemary Foltyn,
as Administratrix of the Estate of Janet Foltyn McAfee (the ..Estate"), was beard and granted before
this Court.
OnApril14 and May 5, 2011 the Courtultimatelyol·dered the Temporary Restraining Ordet•
be extended and Temporary Injunction hearlng be rescheduled to June 9, 2011 at 2:00P.M.
On May 18, 2011 the Application for a Supplemental Temporary Restraining Order of
Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee, was heard and gtanted
before this Court. The Temporary Injunction hearing was scheduled for June 1, 2011 at 12:00 PM.
On June 1, 2011 the Cowt ordered the Supplemental Temporary Restraining Order be
extended and Temporary Injunction be extended and Temporary Injunction hearing be rescheduled
to June 9, 2011 at 2:00P.M.
On June 7, 2011, tho parties agreed to the entry of a Temporary Injunction, andtopasson the
hearing on June 9, 2011. This agreement is evidenced by counsels' signatures below.
The Court finds that all necessnry prerequisites of the law have been legally satisfied and that
the Court has jurisdiction in this case and of all the parties. The Court finds that Rosemary Foltyn, as
Adnlinistratrix of the Bstate of JBJI.et Foltyn McAfee, is entitled to a Temporary Injunction.
Agreed Temporary JbjUDCI1on 1 Df10
Confidential information may have been redacted from the document in compliance with the Public Information Act.
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IT IS THEREFORE ORDERED that Kenneth McAfee and all of his officers, agents,
servants, employees, agents, servants, successors, assigns, representatives, and attorneys are ordered
to immediately cease and desist from the use and control of the following accounts a:od property:
THE GMS GROUP, LLC
1, Any and all funds in OMS Group, LLC accounts, including but not limited to
the following, all of which are pl'esumed to contain community funds and/or funds belonging to the
Estate:
a. SSH-004628
b. 55H-OS6008
~
.
c. 551·660606
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d. SSH-003612
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,.,I e. SSH-034914
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i. 989~03491
j. 996·66060
k. 989-03500
2. Any and all funds in GMS Group, LLC accounts, all of which are presumed to
contain commwlity :funds and/or funds belonging to the Estate, (i) in the name of Kenneth McAfee
j·
i
or Janet F. McAfee, Individuallyi (ii) Kenneth McAfee and Janet F. McAfee jointly; (iii) which Ii
i
names one or both of them as a signatory: (iv) which contains fuuds In the care, custody, co.c.trol, for iI
!
i
the bc.mefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee, individually or jointly; and (v)
,\greed 'l"c111porary lnJun~lloll :z. or tO
Confidential information may have been r edacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
:;li::i:d__o
----~S~
t e~d~ir~lQ
~GL~
SKe~n~ec``
``aL
II~II~--------Deputy
,....-------··----
06/08/2Gll WED 9:20 FAX 7132243111 Law Office ~004/.011
06/07/201 1 10:58 Mitchell & Duff Attorneys at Law (fAX)2813415517 P.004/01 1
under any address related to eitherofthem~ such as a previous residence~ relative, representative, or
attorney's address, or company which did business on behalf of either Kenne1h McAfee or Janet F.
McAfee or which was owned in whole or in part by either Ol' both of them. The addresses include,
but are not limited to, the following;
1. PO Box 66352, Houston Texas, 77266
2. PO Box. 460786 Houston, Texas, 77056
3. 6650 Fairfield Street Houston, Texas, 77023
4. 21 I 9 Tangley Houston, TexllB, 77005
WOODFOREST NATIONAL BANK
3. Any and all funds in Woodforest National Bank accounts, all of which are
presumed to contain conummity funds and/or funds belonging to the .Estate, (I) :in the name of
Kenneth McAfee or Janet F. McAfee, Individually; (il) Kenneth McAfee 11Dd Janet F. McAfee
jointly; (iii) which names one or both of them as a signatory; (iv) which contains funds in the care,
custody, control, for the benefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee,
individually or jointly; and (v) under any address related to either of them, such as a previous
residence, relative, representative, or attorney's address, or company which clid business on behalfof
either Kenneth McAfee or Janet F. McAfee or which was owned in whole or in part by either or both
of them. The adch·esses include, but are not limited to, the following:
a. PO Box 66352, Houston Texas, 77266
b. PO Box 460786 Houston, Texas1 77056
e. 6650 Faid'ield Street Houston, Texas, 77023
d. 2119 Tangley Houston, Texas, 77005
.Agrulf Temporary Illjuncdoll 3or10
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
,.,11;_--dd
Ster11ng G. Senechal II!
Q Deputy
0~/0812011 WBD 9121 FAX. 7132243111 Law Office ~005/011,
06/07/2011 10:58 Mitchell & Dutt Attorneys at Law (FAX)281341S517 P.OOS/011
BANI{ OF AMERICA, N.A.
4. Any and aU funds .in Bank of America, N.A. accounts, all of which are
.•
presumed to contain community funds and/or funds belonging to the Estate, (i) in the name of
Kenneth McAfee or Janet F. McAfee, lndividually; (ii) Kenneth McAfee and Janet F. McAfee
jointly; (iii) which names one or both of them as a signatory; (iv) which contains funds in the care,
custody, control, for the beoe.fit, or on behalf of Kenneth McAfee and/or Janet F. McAfee,
individually or jointly; and (v) under any address related to either of them, such as a previous
residence, relative, representative, or attorney's address, or company which rud business on behalf of
either Kenneth McAfee o.l' Janet F. McAfee or which was owned in whole or in part by elther or both
of them, The addresses include, but are not limited to, the following:
a. PO Box 66352, Houston Texas, 77266
b. PO Box 460786 Houston, Texas) 77056
o. 6650 Fairfield Street Houston, Texas, 77023
d. 2119 Tangtey Houston, Texas, 77005
BBVA COMPASS BANK
5. Any and all funds in BBVA Compass accounts, including Laredo National
Bank, including but not limited to the tollowing, all of which are presumed to contain community
funds and/or funds belonging to the Estate:
a. 113010547049~023
j
b. 00810028023
I
6. /uly and all funds in BBVA Compass aooounts, including Laredo National I·
Bank. all of which are presumed to contBin commwuty funds and/or funds belonging to the Estate,
i
!
j,
(i) in the name ofKenneth McAfee or JIUlot F. McAfee, Individually; (ii) Kermeth McAfee and Janet
Asretd Temporary IIIJun~don 4 of 10 I·
J
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Har ris County, Texas
.Lf;_A,J___a
stenmg G: S8neclial II!
Deputy
06/DS/2011 WBO 9t21 FAX 7132243111 Law Office ll!D06/01l
OS/07/2011 10:SB Mitchell & Duff Attorneys at Law (FAX)281J415517 P.0061011
F. McAfee jointly; (iii) which names one or both ofthllm as a signatory; (iv) which contains funds in
the care, custody, control) for the benefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee,
individually Ol' jointly; and (v) under any address related to either of them, such as a previous
residence) relative, representative, or attorney's address, or company which did business on behalfof
either Kermetb.McAfee or Janet F, McAfee or which was owned in whole or in part by either or both
of them. The addl'esses include, but are not limited to, the following:
a. PO Box 66352, Houston Texas, 77266
b. PO Box 460786 Houston, Texns, 77056
c. 6650 Fairfield Street Houston, Texas,.77023
d. 2119 Tangley Houston, Texas, 77005
WELLS FARGO BANK, N.A.
7. Any and all fUnds in Wells Fargo Bank, N.A. accounts, all of which are
presumed to contain· community funds and/or funds belonging to the Estate, (i) in the name of
Kenneth McAfee or Janet F. McAfee, Individually; (ii) Kenneth McAfee and Janet F. McMee
jointly; (iii) which names one or both ofthem as a signatory; (iv) which contains funds in the care,
custody, control, for the benefit. or on behalf of Kenneth McAfee and/or Janet F. McAfee,
individually or jointly; and (v) under any address related to either of them, such as a :preVious
residence, relative, representative, or attomey's address, or ~ompany which did business on behalfof
either Kenneth McMee or JanetF. McAfee or which wa~ owned in whole or in part by either or both
of them. The addresses include, but arc not limited to, the following:
a. PO Box 66352, Houston Texas, 77266
b. PO Box 460785 Houston, Texas, 77056
c. 6650 Fairfield Street Houston, Texas, 77023
Asrced Temporary Jlljuner!o11 5of10
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A-44 Sterling G. Senechal 111
£;( Deputy
.--------------·-·---·--------------------------------
06/08/2011 WBD 9~21 FAX 71322431ll Law Office fZJO 07/011
06/07/2011 10:58 Mitchell & Duff Attorneys at Law (F~13415517 P.007f011
d. 2119 Tangley Houston, Texas, 77005
CITIZENS FINANCIAL GROUP, INC.
8, Arly and aU funds in Citiz~::mJ Financial Group, Inc. accounts, all ofwhich are
presumed to contain community funds and/or funds belonging to tho Estate, (i) in the name of
Kenneth McAfee or Janet F. McAfee, Individually; (ii) Kenneth McAfee and Janet F. McAfee
jointly; (iii) which names one or both of them as a signatory; (iv) whioh contains funds in the care,
custody, control, for the benefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee.
individually or jointly; and (v) under any address related to either of them, such as a previous
1·esidence, rela1ive, representative, or attorney's addtess. or company which did business on behalfof
either Kenlleth McAfee or Janet F. McAfee or which was owned in whole or in part by either or both
of them. The addresses include, but are not limited to, tho following:
a. PO Box 66352, Houston Texas. 77266
b. PO Box 460786 Houston, Texas, 77056
c. 6650 Fairfield Street Houston, Texas, 77023
d. 2119 Tat~gley Hou.ston, Texas. 77005
PERSHIN_G LLC
9. Any and all funds in Pershing, LLC accowtts, all ofwhlch are presumed to
contain community fund& and/or funds belonging to the Estate, (i) in the name of Kenneth McAfee
or Janet F. McAfee, Individually; (ii) Kenneth McAfee and Janet F. McAfee jointly; (Ui) which
names one Ol' both ofthem as a signatory; (iv) which contains funds in the care, custody, control, for
the benefit, or on behalf ofKenneth McAfee and/or Janet F. McAfee, individually or jointly; and (v)
Aerced Temporary Jnjuncrloa 6 orxo
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A_4d .QSterling G. Senechal II!
Deputy
06/09/2011 WED 9:21 FAX 7132243111 Law Office !llo oS/ o11
OS/07/2011 10:59 Mitchell & Duff Attorneys at Law (FAX)2S13415S1 7 P.OOSJ01 1
under any address ~:elated to either of them, such as a previous residence, relative, representative, or
attorney's address, or company which did business on beijalfofeither Kenneth McAfee 01' J8IletF.
McAfee or which was owned in whole or in pBlt by either or both of them. The addresses include,
but are not limited to, the following:
a. PO Box 66352, Houston Texas, 77266
b. PO Box 460786 Houston, Texas, 77056
c. 6650 Fairfield Street Houston, Texas, 77023
d. 2119 Tangley Houston, Texas, 77005
GRUNT,AL & CO•• INC_.
10. Any and all funds in Gruntal & Co., Inc. accounts, including 8DY Gruntal &
Co., lltc. subsidiaries Ol' affiliates, inclucfutg but not limited to the following, all of which al'e
presumed to contain community funds and/or funds belonging to the Estate:
a. 989·03491
. b. 989·05600
11, Any and all funds In Gruntal &. Co., Inc. e.ecoun~, , il1cludlng any Gruntal &
Co., Inc. subsidiaries or affiliates, all of which are presumed to contain community funds and/or
funds belonging to the Estate, (i) in the name ofKenneth McAfee or Janet F. McAfee, Individually;
(ii) Kenneth McAfee and Janet F. McAfee jointly; (iii) which names one or both of them as a
signatory; (iv) which contains funds In the care, custody, control, for tho benefit, or on behalf of
Kenneth McAfee and/or Jooet F. McAfee, individually or jointly; and (v) under any address related
to either of them, such as a previous residence, relative, representative, or attomey's address, or
company which did business on behalf of either Kenneth McAfee or Janct F. MoAfoe or which was
Agrctll 'l'emporar)' Ih)unctlon 7 utlO
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
..fl;4-d
Sterling G. Senechal IP
Q Deputy
06/08/2011 WED 9:21 FAX 7132243111 Law Office !ll009/0ll
06/07/2011 10:59 Mitchell & Duff Attorneys at Law f AX)281341 5517 P.009/011
owned in whole or in part by either or both of them. The addresses include, but are not lhnited to, tbe
following:
a. PO Box. 66352, Houston Texas, 77266 ·
b. PO Box 460786 Houston, Texas, 77056
c. 6650 Fairfield Street Houston, Texas, 77023
d. 2119 Tangley Houston, Texas, 7?005
OTIIER ACCOUNTS
12. A!ly and till accounts presumed to contain community funds and/or funds
belonging to the Estate, (i) in the name of Kenneth McAfee or Janet F. McAfee, Individually; (ii)
KeMeth McAfee and Janet F. McAfee jointly;. (iii) which name them as a signatory; (iv) which
contains funds in the care, custody, control, for the benefit1 or on behalf of Kenneth McAfee and/or
Janet F. McAfee. individually or jointly; and (v) under any address related to either ofthem, such as
a previous residence, relative, representative1 or attorney's address, or company which did business
on behalfof either Kenneth McAfee or Janet F. McAfee, including, but not limited to the following:
a. PO Box 66352, Houston Texas, ?7266
b. PO Box 460786 Houston, Texas, 77056
c. 6650 Fairfield Street Houston, Texas, 77023
d. 2119 Tangley Houston, Texas, 77005
which contain:
(i) Funds transfened from 01· that can be traced to the accom1ts described
herein, including but limited to accounts at The OMS Group, LLC,
Aem~ Tem-porary lnjunetloo BoflO
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A ..d_f_o
Starling G: S8n8Challl!
Deputy
06/08/2011 WED 9:21 FAX 7132243111 Law Office fili010/011
06/0712011 10:59 Mitchell & Duff Attorneys at Law (FAX)2813415517 P.OlOIOt 1
Woodforest National Bank1 Bank of America. N.A., BBVA Compass
Bank1 Wells Fargo Bank, N.A., Citizens Financial Group, Inc.,
Pershing LLC, and G.nlt'llal & Co,1 Inc.; and/or
(ii) Any and all additional funds and assets w,hich arc preswned to
contain community funds and/or funds belonging to the Estate.
,
IT IS THEREFORE ORDERED, AD.nJDGED AND DECREED that any entity or
individual, including but not limited to The GMS Group, LLC, Woodforest National Bank, Bank of
America, N.A., BBVA Compass Bank, Wells Fargo Bank, N.A., Citizens Financial Group, Inc.,
Pershing LLC, and Grutnal & Co., Inc., which contains, controls, or possess~s funds presumed to
belong to the community and/or Estate, is ordered by the Court to effectuate the terms of tbis
Temporary Injunction should Kenneth McAfee, or any officers, agents, servants, employees, agents,
servants, successors, assigns, representatives> and/or attorneys acting on ms behalf, attempt to access
or obtain accounts or property within that entity or individual's control or possession, which may
contain commtmitY funds and/or funds that belong to 'the Estate.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this Temporary
Injunction Order is effective immediately and shall continue in force and effect until the Court me.keil
a detClmination of what property belongs to the Estate or the Court 1'enders a full and fmaljudgment
is in the pending wrongful deatl1 suit associated with this matter, which ever is later, or by further
order of this Court. This order shall be binding on Kenneth McAfee, or any officers, employees,
agents, servants, successo1·s> assigns, representatives, attorneys acting on his behalf, and on those
persons in active concert or participation with him. The bond posted by the Administratrix is
required to remain posted.
Agreed 'fe111por~ry llljuneclon 9or10
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A Certified Copy
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Stan Stanart, County Clerk
Harris County, Texas
A_Ad .o
Sterling G. Senechal II!
Deputy
06/08/2011 WED 9:22 PAX 7132243111 Law Office ~011/0ll
06/0712011 10:59 Mitchell & Duff Attorneys at Law (FAX)2813415517 P.011/011
':X) tI
SIGNEDon``~ at~m.
APPROVED AS TO FORM:
Duff
Texas o.06J66880
21 0 Main Street
Richmond, TX 77469
Tel. (281)34IM1718
Fax. (281)34lM5517
Atton1ey for Independent Administratrix
Ro~ol``
By:.___ ``~---------------
DEAN M. BLUMROSEN, ESQ.
State Bar No. 02517900
4615 Southwest Freeway, Suite 850
Houston, Texas 77027
7l3.S24.222SM Telephone
713.524.557~ Faoslmil
Attomey for Heirs f et Foltyn McAfee
I
.;a -
r-
ro
0
.CN
RECORDER'S MEMORANDUM:
At tho time of recordation, lhll Instrument was
round to be lnadaqusto for the belt photographic
reproduction because of Illegibility, carbon or
photo copy, dlacolored paper, etc. AIJ blockoull,
,1\groecl 'romporK., lojuoclloo 10 of 10 addlllona and changes were pro``&nt allhe lima
the Instrument was filed and rucordad.
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
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Stan Stanart, County Clerk
Harris County, Texas
J,t..Jd
Sterling G. Senechal II!
_Q Deputy
Tab2
Order
.. PROBATE COURT I
r~ NO. 396,935-401
a
c
r:: ROSEMARY FOLTYN, Individually §
(~.
And as Independent Administratrix of the§ \_
0 Estate of Janet Foltyn McAfee, Deceased; §
(\J AND JAKE FOLTYN, Individually §
o:l Plaintiffs §
0 §
§
I -
~
I C'J vs.
§
§
§
,.,
(\j
KENNETH COOPER MCAFEE §
N Defendant § HARRIS COUNTY, TEXAS
C'l
c
ORDER
On this day the Court considered the Plaintiffs' Second Amended
Motion for Summary Judgment on Plaintiffs wrongful death claim. The
Court, after considering the pleadings, the motion, the response, if any,
and the arguments of counsel, is of the opinion that the Plaintiffs'
Second Amended Motion for Summary Judgment is hereby
GRANTED. Defendan~, Kenneth Cooper McAfee is liable to the
individual Plaintiffs for causing the death of their daughter, Janet
McAfee.
ORDERED, ADJUDGED and DECREED that Plaintiff, Rosemary
Foltyn, Individually, recover from Defendant, Kenneth Cooper McAfee, after
all offsets and credits, judgment in the amount of $1,000.000.00 for her
1
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A Certified Copy
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Stan Stanart, County Clerk
Harris County, Texas
A4LoSter11ng G. S nechal Ill
Deputy
.I -
.....
emotional pain and suffering due to the death of her daughter, Janet McAfee.
It is further, ORDERED, ADJUDGED and DECREED that Plaintiff, Jake
Foltyn, Individually, recover from Defendant, Kenneth Cooper McAfee, after
all offsets and credits, judgment in the amount of $1,0001 000.00 for his
emotional pain and suffering due to the death of his daughter, Janet McAfee.
This judgment shall accrue together with interest thereon at the rate of 5% per
annum from the date this suit was filed on February 23, 2011, until the date
of judgment, post-judgment interest at the rate of 5% per annum, and for all
costs of Court expended in this cause, for which let execution issue. This
Judgment finally disposes of all parties and is appealable.
SIGNED this `` ..rr- day of_---=-/-~
?2ar=--=cb~'----' 2014.
JUDGE LOYD WRIGHT
2
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A Certified Copy
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Stan Stanart, County Clerk
Harris County, Texas
A.4d. .a
Ster11ng G Senech 1111
Deputy
Tab3
Application for Writ of
Garnishment
FILED
10/9/2014 10:18:51 AM
Stan Slanart
PROBATE COURT 1 County Cieri<
OM Hams County
JANET F. MCAFEE, DECEASED 396935-401
NO. _ _ __
0 ROSEMARY FOLTYN, Individually§ IN THE PROBATE COURT
AND JAKE FOLTYN, Individually§ ONE
Plaintiffs §
§
§
§
§
§ OF
§
,.. vs. §
0 §
THE GMS GROUP, L.L.C. AND §
WOODFOREST NATIONAL §
BANK § HAREITSCOUNTY,TEXAS
Defendants 1 PER WRIT BY CERTIFIED MAILED
APPLICATION FOR WRIT OF GARNISHMENT1 PER WRIT IN
10-9-2014
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Rosemary and Jake Foltyn (hereinafter referred to as
"Gamishors") and makes this Application for Writ of Garnishment against
The GMS Group, L.L.C., and Woodforest National Bank, (hereinafter
referred to as "Garnishees") and, in support hereof, Garnishors would show
the Court the following:
I.
1. Plaintiffs/Garnishors are Rosemary and Jake Foltyn
("Garnishors").
Application for Writ of Garnishment Page 1
C.P!RSONAL OCT 1 3 2014
·-··--·- ---. ·-· ··· - - - - · - - -- ----- ..... .. ··---- ---- .. - .
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Stan Stanart, County Clerk
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.A,4d_ .a
St rUng G. S n challll
Deputy
2. Defendant/Garnishee, LGMS Group, L.L.C., is a limited
liability company doing business in Texas and may be served by serving its
registered agent, via certified mail, return receipt requested, Corporation
Service Company, DIBIA CSC -Lawyers Tnco,~E. 7&. Street, Suite 620,
'I:J'
Austin, Texas 78701.
3. Defendant/Garnishee~::dforest National Bank is a privately
held bank doing business in Texas and may be served by personally serving
its~tered agent, James D. Dreibelbis, 25231 Grogan's Mill Road, Suite
100, The Woodlands, Teas 77380.
4. Venue is appropriate in Harris County, Texas because the
Judgment was rendered in Harris County, Texas.
II.
5. On or about March 21,2014, this Court, in case number 396,935-
401 styled Rosemary Foltyn, Individually and as Independent Administratrix
ofthe Estate ofJanet Fo/tyn McAfee, Deceased; and Jake Foltyn, Individually
v. Kenneth Cooper McAfee entered a Judgment against Defendant, Kenneth
Cooper McAfee in the amount of $2,000,000.00, plus pre and post judgment
interest, plus costs of Court ("Judgment"). A true and correct copy of the
Application for Writ of Garnishment Page 2
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A Certified Copy
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Stan Stanart, County Clerk
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Judgment is attached hereto as Exhibit "A" and incorporated herein by
reference for all purposes. This Judgment is just, due, unpaid, and remains
unsatisfied.
,~
III.
6. To the best of Garnishors' knowledge, the debtor, Kenneth
Cooper McAfee does not possess property in Texas subject to execution that
,..
Cl is sufficient to satisfy the above-described claim. Plaintiffs served post-
,..
judgment discovery on Mr. McAfee on April 21, 2014. Defendant did not
produce any documents establishing his ownership of property in Texas
sufficient to satisfy the judgment against him.
IV.
7. Gamishors have reason to believe, and do believe, that
Garnishees, The OMS Group, L.L.C., and Woodforest National Bank, may be
indebted to Kenneth Cooper McAfee by maintaining or holding one or more
bank accounts. Gamishors believe Kenneth Cooper McAfee's social security
number to be 454-82-X:X:XX. Gamishors are not seeking to injure or harass
the Garnishees or the Judgment Debtor by sending out a Writ of Garnishment.
Rather, Garnishors are attempting to collect on a Judgment. Gamishors
request that if Garnishees, The OMS Group, L.L.C., and Woodforest National
Application for Wrtt of Garnishment Page 3
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Sterling G. Senechaf 111
Bank are indebted to Kenneth Cooper McAfee by any account or otherwise,
that Garnishees hold and allow Garnishors to garnish said belongings.
Garnishors also request that if Garnishees hold possessions in a safety deposit
box at any branch that Garnishees hold and allow Gamishors to garnish said
belongings as pennitted by law.
v.
8. This Application is supported by the Affidavit of Dean M.
Blumrosen attached hereto as Exhibit "8" and incorporated herein by
reference for all purposes.
WHEREFORE, PREMISES CONSIDERED, Rosemary and Jake
Foltyn, request that a Writ of Garnishment be issued as above described and
that Gamishors have judgment to partially satisfy the claim above-mentioned
as provided by law, together with all costs of Court incurred in this
proceedings, and other such relief to which Garnishors may be justly entitled.
Application for Writ of Garnishment Page 4
- - - - - - -- ··· ···· · · · - -·······-··- - - -- -
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
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Stan Stanart, County Clerk
Harris County, Texas
··------------------------------------------------
C)
il. R``t~
DEAN M. BLUMROSEN, ESQ.
State Bar No. 02517900
4615 Southwest Freeway, Suite 850
~1 Houston, Texas 77027
.... 713.524.2225- Telephone
0 713.524.5570- Facsimile
N Dblumrosenlaw@aol.com
ATTORNEY FOR PLAINTIFFS
I'"'
Application for Wtit of Garnishment Page 5
. ····- ··· ·-·-···- ··· - ---- - --·· - -· ... ... ... . . ······· .. .
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A Certified Copy
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Stan Stanart, County Clerk
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('J
1;\j
EXHIBIT A
------------------- -····
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Stan Stanart, County Clerk
Harris County, Texas
Deputy
NO. 396,935-401
ROSEMARY YOLTYN, fndlvlduall)' § IN THE PROBATE COURT ONE
And as Independent Adminl~tnltrix of the§
Estate of .Jaaet Foltyn McAfee, Deceased; §
AND JAh.'"E FOLTYN, Individually §
,..... Plaintifft §
§
§ OF
§
I"'
1'", vs. §
1\J §
t".. KE!IINETH COOPER MCAFEE §
'••'
Defendant § HARRIS COUNTY, TEXAS
,..
ORDER
On this day the Court considered the Plaintiffs' Second Amended
Motion for Summary Judgment on Plaintiffs wrongful death claim. The
Court, after considering the pleadings, the motion, the response, if any,
and the arguments of counsel, is of the opinion that the Plaintiffs'
Second Amended Motion for Summary Judgment is h.ereby
GRANTED. Defendant, Kenneth Cooper McAfee is liable to the
individual Plaintiffs for causing the death of their daughter, Janet
McAfee.
ORDERED, ADJUDGED and DECREED that Plaintiff, Rosemary
Foltyn, Individually, recover from Defendant, KeMeth Cooper McAfee, after
all offsets and credits, judgment in the amount of $1,000.000.00, for her
1
I
!
I I'f
I,.
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A Certified Copy
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Stan Stanart, County Clerk
Harris County, Texas
v ••
emotional pain and suffering due to the death of her dau~ter, Janet McAfee.
It is further, ORDERED, ADJUDGED and DECREED that Plaintiff, Jake
Foltyn, Individually, recover from Defendant, Kenneth Cooper McMee, after
all offsets and credits, judgment in the amount of $1,000.000.00, for his
emotional pain and suffering due to the death of his daughter, Janet McAfee.
This judgment shall accrue together with Interest thereon at the rate of 5% per
,,,
I,_..J
annum from the date this suit was filed on February 23, 2011, until the date
of judgment, post-judgment interest at the: rate of 5% per annum, and for all
costs of Court expended in this cause, for which let execution issue. This
Judgment finally disposes of all parties and is appealable.
SIGNED this ~I ..s-r- day of _ _!.:.../?2__.(:.-~oQ.C~ch..c;....)._ ___,, 2014.
JUDGE LOYD WRIGHT
2
. .... . ---··- -- · - -- - - - I
(,
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Stan Stanart, County Clerk
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......
,..
,..
(:)
EXHIBIT B
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Stan Stanart, County Clerk
Harris County, Texas
A-<4L o
St nino G. Sen chef Ill
Deputy
AFFIDAVIT OF DEAN M. BLUMROSEN
STATEOFTEXAS §
§
COUNTY OF HARRIS §
BEFORE ME, the undersigned official, on this day, personally appeared before me,
Dean M. Blumrosen, who after being duly sworn, did depose and state as follows:
I. "My name is Dean M. Blumrosen.l am over 21 years of age, of sound mind,
have never been convinced of a felony and um capable of making this
1::; allidavit.
2. ';I om nn attorney for Rosemary and Jake Foltyn., Gamishors in this
Garnishment.
3. ;'I have personal knowledge of the facts as stated in Garnishors' Application
r~ W CouniY
522CAUSE NO. 396935-401
N
c INRE § IN THE PROBATE COURT
().
JANET F. McAFEE, §
Deceased § NUMBER ONE
§
ROSEMARYFOLYNand §
i JAKEFOLYN §
i .. §
I~ ~ § OF
10 §
iN THE GMS GROUP, LLC and §
I~ WOODFOREST NATIONAL BANK,
Defendants
§
§
HARRIS COUNTY, TEXAS
MOTION TO QUASH WRITS OF GARNISHMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Charles Storer, Power of Attorney for Charles McAfee, Defendant
herein, and holder of the accounts Plaintiffs seeks Via the Writs of Garnishment Issued
by this Court, who m011es to quash (dissolve} the two Wrfts of Garnishment issued post-
judgment in this cause (to Woodforest National Bank and GMS Group}, as the Writs
reach accounts andlor assets that are wholly exempt from the reach of judgment
creditors (indeed from the reach of all creditors). In support of this Motlon, Mr. storer,
would show the following: 1
I. INTRODUCTION AND SUMMARY
1. This Court Issued two writs of garnishment at the request of Plaintiffs. While a
judgment creditor has a right to pursue collection on their judgment, including via
garnishment upon depository aocounts, Texas and federal law sharply limit what
property of a judgment debtor may be taken. Here, both or the accounts are
1
Mr. McAfee deslgnated a Power of Attorney heta\lse he 1s incarcerated.
..... or
MOnoN TO QIJ.I.SH WRFT-5 GAAHISHMEJlf
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A Certified Copy
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entirely and undividedly, protected from the reach of all creditors. Because these
.-
N
0 accounts may not be taken by any creditor, with any judgment, the two Writs
0.
issued while the Court was unknowing of the exempt status of these accounts,
0
1'1 should and must be quashed.
II. FACTS AND PROCEDURAL HISTORY
,...506 B.R. 765, 769 (Bankr., C.D.
Ill. 2014) ("These proscripUons have been part of the Social Security Act since
1935'). 2
9. The absolute nature of the social security benefit exemption has been recognized
by the United States Supreme Court, which observed that 42 U.S.C. §407(a)
"unambiguously rules out any attempt to attach Social Security benefils."
Bennett v. Amansas, 485 U.S. 395, 397, 108 S. Ct. 1204, 1205, 909 l.Ed2d 455
'The exempHon reaches Soeial Seeur1ly retirement ineome, dlsablllty benefits, and supplemental security
income, amongst other benefits. See TownSJ)/ v. Dish Networl<, 668 F.3<1 967, 968 (7., Clr. 2012).
Veterans' benefits are exempt and lreated the same wa!J. Sea Christenssn v. Pack, 122 Nev. 1309, 149
P.3d 40, 48 (Nev. 2006).
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
J!;_4~
SteHing G sen&Challll
Deputy
0
l'J (1988).
N
0 10. The same complete exemption also reaches accounts that qualify for deferment
a.
of federal income tax, Including Mr. McAfee's 401{k) account that Is the subject of
the GMS garnishment. IRS qualified retirement accounts are exempt from
collection actions, and beyond the reach of debtors, pursuant to Texas law. See
Tex. Prop. Code, §2.0021. The legal issue, and exempt nature, regarding· both
0
N
0 accounts is neither cootroverslal nor a close call.
[\j
IV. EXEMPTION OF THE WOODFOREST (SOCIAL SECURITY) ACCOUNT
A. The Exemption for Social Security Benefits Is Statutory and
Contains No Exceptions
11. The federal statute protecting federal social security benefits from the reach of
creditors, Including those on deposit, is unequivocal and sweeping In its scope. II
is so protective of federal benefits, It goes as far as to prohibit recipients of these
benefitS from voluntarily choosing to assign or alienate these benefits, even for
valuable consideration. See 42 U.S.C. §407. Indeed, the sole manner these
funds can be put Into the hands of others Is through staodard purchases of goods
and services after the benefits have been cashed or deposited. These funds
may not be assigned to creditors, including by the Involuntary means of
garnishment. See Townsel v. Dish Network, 666 F.3d 967, 968 {7"' Clr. 2012)
("A credllor that tried to garnish or attach Social Securlly benefits .... would
encounter a §407 defense). 3
3
The sllltute creates three separate proteellons for social securlty benefits. II forbids assignments or
sueh benefits. See 42 U.S.C. §407(a). Second, it makes these benefits beyond the reach of a
bankruptcy trustee. Sea ld. Third, and relevant hare, K exempts these be!l!lfi!s from stale or federal
judicial action. See /d. ('none of lhe mooeys paid or payable or rights exlsdng under thi! sub411 F.3d 1164, 1172 (10111
Cir. 2005); see also In re Greene, 27 B.R. 462, 464 (Bankr., E.D. Va. 1983)
(§407 "deals with the rights of social security recipients and seeks to protect their
0 benefits from the reach of creditors").
N
0 13. In fact, Congress wanted to protect beneficiaries "from seizure In the legal
N
process: lr:J. By doing so, Congress ensured that the underlying purpose of
social security benefits, to provide a minimum level of support and financial
stability, cannot be hindered by creditors, regardless of the merits of the
creditors' claim. See ir:J.; see also In re Buren, 6 B.R. 744, 746 (Bankr., M.D.
Tenn, 1980) ("The purpose of the Social Security Act of 1935 was to provide a
minimal level of economic security for the unemployed, the elderly, the homeless,
and the blind").
14. The Woodforest account that Plaintiffs seek to garnish is funded with social
security deposits. See Oeposivrransaclion record of Woodforest National Bank
(showing monthly direct deposits as received from "SOC SEC US TREASURY").4
15. While Mr. Afee is disabled, he Is admittedly not homeless, elderly, or blind. The
lack of a destitute state, however, as well as !he existence of other means of
suppol}, such as the Texas Department of Corrections, does not cause the
subject to execution, levy, aHachment, gamlshmen~ or other legal process, or to the operation of any
bankruptcy or insolvency law").
' A spreadsheet showing all deposits Into the account since December of 2009 Is attached to this
pleadif'lll as Exhibit A. The Woodlorest.generated statooment of account activlty Is attached to ltlls
pleading as ExhibK B. The account activity ceases In November, 2010 except for ltle exclusive conllnulng
Social Security b409 U.S. 413, 415,
"
!II
93 S.Cl 590, 34 LEd2d 608 (1973) (because "!he language is al~inclusive,' the
Social Security Act prohibits any state from reaching federal disability benefits);
,.l:j /d., 409 U.S. at416 ('it Imposes a broad bar against the use of any legal process
0
N
0 to reach social security benefits').5 There is, therefore, no need-testing for the
N
,... exemption to apply. Cf. Reams v. Oklahoma, 411 F.3d at 1172 ('To tinker with
!"
that scheme could open the door lor a loss of protection down the road').
16. Rather, the exemption Is absolute. The statutory language, the United States
Supreme Court noted, 'Is broad enough to reach all security benefrts,' no matter
the cause of the benefits or the situation of the beneficiary." Phl1pott v. Essex
County Welfare Board, 409 U.S. at417; see a/so In ra Carpanler, 614 F.3d 930,
932 (81h Clr. 2010) (exemption statute is unambiguous, and therefore courts have
no need lor legislative history or implied exceptions); accord, In re Ragas, 700
F.3tt220, 222·224 (5111 Cir. 2012).6
17. The statute, therefore, is an unyielding prohibition on the garnishment sought In
this case. See N.L.R.B. v. HH# Trucking, Inc., 755 F.3d 466 (71h Clr. 2014)
(•Social Security benefits ... cannot be garnished or otherwise attached after
• Phi/pol was an unanimous declslonloplnlon of the Supreme Court
• There was, for a brief, time an lmpfied exception, In just one federal cin:vit, for benef~elaries who d'Jd not
need the social security 1\Jnds for !heir SIJII!enan<:s. See Cilltmeffe-MobUe Gelheling v. Watkins, 934 F.2d
1180 (11~ Clr. 1991). Not one of the CilltmsHe court's sister circuit courts adopted the! holding !he
absolule language of the staMe. CitroneUe's reach, Ill any event, lermlneted at the hand ollhe
Coort See Lew v. Siege/,- U.S.-, 134 S.Cl 111l8, 111l5,188 LEd2d 146. 82 USLW 4140
2014).
MOnON TO OUASHWMS OF OJJ\Hls.HME:NT
P•goe
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A Certified Copy
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Stan Stanart, County Clerk
Harris County, Texas
Deputy
(')
('..! receipt"); NCNB Financial Services v. Shumate, 829 F. Supp. 178, 180 (W.O. Va.
N
0 1993) (statute 'prohibits attachment, levy, or garnishment on such beneflls"); In
a.
0 re Franklin, 506 B.R. 765, 773 (Bankr., C.O. 111.2014) (exemption provision is not
d'l
tied to Bankruptcy Code and Is assertable defensibly including against
garnishments). In re Miller, 445 B.R. 504, 507 (Bankr., D.S.C. 2011) (the statute
0 'contains no limiting language' and therefore extends to all social securlly
N
0 income): id., ('section 407(a) operates as a complete bar to the forced Inclusion
N
of past and future social security proceeds In the bankruptcy estate") [quoting In
re Carpenter, 615 F.3d g3o, 946 (au. Cir. 2010)): see also Bennatt v. Arkansas,
485 U.S. 395, 398, 108 S. Ct. 1204, 1205-06, 99 L.Ed2d 455 (state may not
attach social security benefits of state prisoners) (per curiam); Marengo v. First
Massachusetts Bank, 152 F. Supp. 2d 92 (0. Mass. 2001) (efforts to reach
account contained benefit deposits violated Social Securlly Act).
18. Judicial interference with these funds, indeed, is so disfavored, H has been held
to Implicate the constitutional due process rights of social securHy beneficiaries.
See Dionne v. Bouley, 757 F.2d 1344, 1350 (1st Cir. 1985) ("It is also clear that
Dionne's Interest in retaining her exempt social security funds free from
attachment was the kind of property interest that is entilfed to due process
protection').
19. Earlier this year, the United States Supreme Court once again held that the
statute means what it says;
§ 522 does not give courts discretion to grant or withhold exemptions
based on whatever considerations they deem appropriate. Rather, the
statute exhaustively specifies the criteria that will render property
exempt.
.... ,
MOTIOH TO QUASH WRilS OF GA.RNIStodEHT
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A Certified Copy
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Stan Stanart, County Clerk
Harris County, Texas
ft4L_a
Sterling G: Sanecna! 111
Deputy
v
N
N Lawv. Siegel,- U.S.-, 134 S. Ct. 1188, 1196, 138l.Ed2d 146,82 USLW 4140
0
1).
(March 2014); see also /d. ('courts are not authorized to create additional
0
ul exceptions'); In re Franklin, 506 B.R. at 773 ('Congress has strongly expressed
its policy of protecting social security benefrts, and it is not for the courts to read
';t
an Implied exception"lnto the exempting statute).
0
N 20. The mountain of precedent and the unambiguous wording of the federal statute
0
N mandate the quashing of the Woodforest writ. Social security funds can never be
used to pay creditors, except when received, turned into cash, and become the
subject of voluntary spending by the debtor. See In re McFarland, 461 B.R. 242,
250 (Bankr., S.D. Ga. 2012) (social security benefits remain exempt from
creditors after they are 'received by the Social Security recipient and deposited
Into the bank"); In re Moore, 214 B.R. 623, 630 (Bankr., D. Kan. 1997) (the funds
do not lose their exempt status when deposited Into a bank account"); see also S
& S Diversified Sa/Vices v. Taylor. 397 F. Supp. 549, 552 (D. Wyo. 1995) (Social
Security benefits remain exempt when deposited into joint bank account). 7
21. These benefrts, and the Woodforest Bank account, are, absolutely and entirely,
beyond the reach of any creditors, and therefore an impermissible object of a writ
of garnishment. See NCNB Financial Services v. Shumate, 829 F. Supp. at 180
~.D. Va. 1993) (statute "prohibits attachment, levy, or garnishment on such
7
one creditor can get at soda! security benefits: the government of the Unhed States. Sloe Locl546 U.S. 142, 145, 126 S.Cl 699, 701, 163 L.Ed2d 557 (2005) (federal government may
aHach social securtty benefits of federal student loan deblo!s. Congress, however, explicitly passed an
exeeptlon to the no-atlachment provision of the Social Security Act to achieve that resuft. See 31 U.S.C.
§ 371e(c)(3)(A)(i), The fact that Congress had to tw!ee-amend. the debt conectlon legislation, and
specifically override the an!k:redllor provision of the Social Security Act. demF'ranklin, 506 B.R. at 773 (Bankr., C.D. 111.2014) (eKemption
provision Is not lied to Bankruptcy Code and is assertable defensibly Including
against garnishments). To ensure that the congressional/statutory protection of
social security benefits Is achieved, writs of garnishment Inadvertently issued
without the Court's knowledge of the exempt status of these funds, must be
quashed. See NCNB F'inanc/a/ Services v. Shumate, 829 F. Supp. at 181
c
N (quashing writ to the extent it reached exempt funds)."
0
N
B. COMINGLING OF SOCIAL SECURITY BENEFITS DOES NOT AFFECT THEIR
EXEMPT STATUS, AND ANY SUCH COMINGUNG IN THE WOODFOREST
ACCOUNT CEASED YEARS AGO
22. It may be true that the Woodforest Account was_ occasionally used to hold other
assets of Mr. McAfee, unrelated to his social security benefits. This has no
bearing on the protected status of the account and of the social security funds
within it. See NCNB Financial Services v. Scumate. 829 F. Supp. 178, 180 (W.O.
Va. 1993) ("Social security benefrts are protected even If they are commingled In
a savings or checking account with funds from other sources'); In re
Lichtenberger, 337 B.R. 322, 325 (Bankr., C.D. 1112008) (same).
23. While courts may. differ in the accounting method used to calculate protected
funds In a comingled account, no court has questioned the protected status of
' While the federal regulations Insist that banks calculate the •tookback" amount, reaching two months of
deposits. that small perlod ol time only eddress!l11 the bank's requiremenls. None of lha deposits of
federal benefit funds are reachable by creditors, no mellor how long ago the deposn occwed. See 31.
C.F.R. §212.6 (duty to determine an amount that the flnanclallnstftullon must protect from Cfejjilor.;); /d.,
§212.9 (safe harbor for financial Institutions form liabilty claims). The regulations do no~ and cannot,
change the blanket exempllon of fedaral baner~ funds from the reach of Cfejjftors. See /d., §212.8
('Nothing In this part shall be construed to llmH an Individual's !1ghl under Federal law to assert against a
creditor a further exemption from garnishment in excess of the protected amoun~ or to alter the exempt
status of funds that may be protected from garnishment under federal law.
~TO
-·
QUASH WM$ OF GAAHiSHMENT
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A Certified Copy
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Stan Stanart, County Clerk
Harris County, Texas
iJ)
social security benefits in a comingled account. On the contrary, the protected
-N
N status is 'black-letter law: nationally. See Philpott v. Essex County Welfare
0
ii.
Board, 409 U.S. 413, 416-17, 93 S. Ct. 590, 592-93, 34 LEd2d 608 (1973) (funds
0
!!I exempt so long as they maintain the character of money); In re King, 508 B.R.
71, 78 {Bankr., N.D. Ind. 2014) ("commingfing of an eamed income credit refund
with other funds does not affect the ability to claim the statutory earned income
0
N credit exemption•); In re Lantz, 451 B.R. 843, 647 (Bankr.. N.D. Ill. 2011)
0
N
{depositing funds into an account that contains other funds does not lose exempt
status for social security funds, if the latter can be traced); see generally 2A Soc.
Sec. Law & Prac. §34.8 {Sept. 2014).
24. Because the account may have received, and may have com!ngled funds on
deposit, this Court can hold a hearing to trace the protected assets, if the
Garnishor deems such a hearing worth the time and expense. See Philpott, 409
U.S.a! 416-17, 93 S. Ct. at 592-93; see also Cl!rlstensan v. Peck, 149 P.3d at 48
(it •defies logic" to argue that exempt benefrts lose that status with comingling).9
25. in the present case, the Court need not be concerned about choosing the best
method, as the bank records for the account show that the funds now on deposit
came excluslve!v from the Social Security Administration. See In re Hensley,
393 B.R. 186, 198 (Bankr., E.D. Tenn. 2008) {accepting testimony that entire
• Tracing can be dons lllrough lila lasllnllirst out method (UFO), last !nllast 0\ll (liFO), and other means.
All calculations are •an equttable subsb1uta for the Impossibility of specifiC identifiCation." In ro Lantz, 451
B.R. at 848; In ro Lichtenberger, 337 B.R. 322, 325 (Bankr., C.D. m. 2006) (selection of methods should
bs guided by !he principle that exemptions are to bs Interpreted liberally, In favor of the deblor). In other
Instance•. courts hove chosen e pro-mta basis b~ measuring the percentage of deposita that came from
lite exempt source. Sea Nail:son v. McGuire, 2006 Wl1875383, at •4 (D. Nebr. 2006).
MOTlON TO OUAStfWJUTS OF GA.RNIS'HMEHT
Pa;e10
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Stan Stanart, County Clerk
Harris County, Texas
{'.
source of funds in bank account except for one gift were social security
-~
N
0 benefils). 10
tl.
0 V. EXEMPTION OF THE GMS (IRA) ACCOUNT
ll'l
26. The exemption for IRS qualified tax-deferred retirement accounts, such as Mr.
McAfee's GMS account, comes from stale law. See Tex. Prop. Code,
">!
0 §42.0021 (a) (including within exemptions •a person's right to the assets held In or
N
0 to receive payments, whether vested or not, under any stock bonus, pension,
N
annuity, deferred compensation, profit-sharing, or similar plan"). Such funds and
such .accounts are "exempt from attachment. execution, end seizure for the
satisfaction of debts• so long as the account Is exempt from immediate federal
income taxation. /d.; sea a/so Lozano v. Lozano, 875 S.W.2d 63. 66 {TelC.App.-
Houston [1411>] 1998). IRAs have been exempt from the reach of creditors in
Texas, including judgment creditors, since 1987. See Williams v. Texas
Commerce Bank. 766 S.W.2d 344, 346 (Tex.App.- El Paso 1989).
27. The GMS account is, was intended to be, and is set forth by GMS as a tax-
deferred rellrement account, and qualifies for exemption under §42.0021(a). See
Letter from Matthew E. Lipman (counsel for GMS) to County Clerk (Oct. 23,
2014) (Exhibit 2) (describing garnished account as a 'DLJ Qualified Retirement
Plan"); see a/so Summary Plan Description for GMS Group, L.L.C. Salary
10
A spreadsheet showing aH deposits Into the account since December o! 2009 Is attached to !his
pleading as Exhibit A.
MOTION 10 QUASH WRfTS OF GARHLSHMENl
PotQe'11
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A Certified Copy
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Stan Stanart, County Clerk
Harris County, Texas
tJ)
N Savings Plan, at p. 3, 1)6 (describing employee contributions as 401(k) tax-
(IJ
0 deferred contributions). 11
fl.
0 28. The GMS account, therefore, may not be turned over to a creditor, including by
" garnishment. See Bergman v. Bergman, 888 S.W.2d 580, 586 (Tex.App. - El
Paso 1994) {reversing turnover order because account was exempt); accord Nu-
,..'\t
c Way Energy Corp. v. Delp, 205 S.W.3d 667, 679 (Tex.App. -Waco 2006); Kent
1\J
0 v. Holmes, 139 S.W.3d 120, 131 (Tex.App. -Texarkana 2004); Bergman v.
(\)
... Bagmen, 888 S.W.2d 580, 586 (Tex.App.- El Paso 1994); Morgan v. Horton,
675 S.W.2d 602, 604 (Tex.App. - Dallas 1984). The unanimous voice of !he
oourts resufts from the clear legislative purpose to 'protect the Interests in the
retirement fund from credHors and assignees' Kent v. Holmes, 139 S.W.3d at
131.
29. Like with social security benefits, the exemption for tax-deferred retirement
acoounts is read without neither exemptions nor narrowness, to fulfill a state
policy favoring debtors that has existed since the nineteenth Century. See
Bergmen v. Bergman, 888 S.W.2d 580, 586 (Tex.App.- El Paso 1994) ld., 888
S.W.2d at 585. ('the long standing public policy of Texas has favored debtors
over creditors) [citing Be// v. Indian Uve-stock Co., 11 S.W. 344, 346 (Texas
1889)].
30. There can be littte doubt that a firm such as GMS, which represents itself as a full
service brokerage house,· and advises people on planning for their retirement,
presented their employees w~h anything other than an IRS-qualified plan for their
11
The <:hart of accounls Included In Mr. Lipman's fetter (ExhlbH '2 to ihatletter)ls attached to this pleading
as ExhibH C. The Plan Description Is attached to lhls pleading as Exhibit D.
MOTION iO O!JA$H ~ITS OF Q:AAMSHM£NT
P1;et2
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
m retirement benefit. See In re Youngblood, 29 F.3d 225, 228 (51" Cir. 1994) (tax
N
N treatment of account is determinative inquiry under §42.0021); see also id., 29
0
!l.
F.3d at 229 ("the legislature intended for its own slate couns ... to defer to the
0
lrl IRS in determining whether a retirement plan is 'qualified' under the Internal
Revenue Code"); Lozano v. Lozano, 975 S.W.2d at 67 ('evidence that an
Ill'
,... account ls an Individual retirement annuity is sufficient to establish that it Is
0
N exempt"). 12
0
N 31.
,.. While Mr. Storer has, and can put on evidence showing the tax-exempt nature of
the GMS account, that exemption is clear from the facial descriptions of the
account Issued by GMS. in any event, garnishment has no basis in Texas'
common law, and is purely statutory. Consequently, a pany claiming an
entitlement to garnishment has to prove that the property he is after is subject to
the procedure. See Del-Phi Engineering Associates v. Texas Commerce Bank,
771 S.W.2d 569, 591 (Tex.App. - Beaumont 1969) (Burgess, J., dissenting)
(motion to dissolve writ joins the issue, and then par1y seeking garnishment must
put on proof that they are entitled to the funds).
32. That burden cannot be met by the Plaintiffs in this cause, as the GMS account Is,
beyond question, a tax-deferred retirement account and beyond the reach of all
credilors. 13
or
" Moreover, unliKe wilh social seeuriiy benefits, it ts !he account that is exempt; !he source the funds is
lm!levanl Seo id., 975 S.W.2llat 66.
" If the burden l• placed on Mr. Storer, •• lhe party claiming the exempllon, he can easily do " If
permitted an evidential)' hearing with sufficient time to subpoena the needed records.
MO'TICIN TO QUASH WFtfTS OF GARNISHMENT
P*13
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A Certified Copy
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Stan Stanart, County Clerk
Harris County, Texas
0 PRAYER
~
N
0 WHEREFORE, PREMISES CONSIDERED, Charles Storer, Power of Attorney
!l.
for Defendant, Charles McAfee, respectfully prays that the Court enters an Order
0
1!1 quashing {dissolving) the two Writs of Garnishment Issued in this cause as reaching
... exempt assets that cannot be garnished, for any reason, and further prays for such
... other and further relief to which he or Mr. McAfee may be entitled, in law or In equity.
0
N Respectfully submitted,
0
N
,.. ANDERSON PFEIFFER, PC
/s/Xstner ,J!,ndi!rmn
By: Esther Anderson
SBN: 00792332
845 FM 517 West, Suite 200
Dickinson, Texas 77539
Office: 281.488.6535
Facsimile: 281.614.5205
EmaH: eslher@probateguarrJianshlp.com
Of counsel on the Pleading:
lsi 'Ro5ert Teir
Robert Teir
Robert Teir, PLLC
845 FM 517 West, Suite 200
Dickinson, Texas 77539
Office: 832.365.11g1
Facsimile: 632.550.2700
Email: rob@telrlaw.com
Attorneys for Mr. Charles Storer
MOTION TO QUASH WRITS OF GARH1SHMEHT
PB~i.t
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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
i!J CERTIFICATE OF SERVICE
N
0
:l.
0 1. Robert Teir. undersigned below, hereby certify that a true and correct copy of
u'1
the following has been forwarded to all parties and/or counsel of record through our
electronic service provider and/or facsimile on !his 19111 day of November, 2014.
r:t
....
0
(IJ /s!:Rc6ert 'leir
0 Robert Teir
N
cc: Matthew E. Lipman
Faust Oppenheim LLP
488 Madison Avenue Via Electronic Service Provider & .
New York. New York 10022 Facsimile 212-371-11410
Dean M. Blumrosen, Esq.
4615 Southwest Freeway. Sui!e 850 tronlc Service Provider &
Houston Texas no21 Ia 713-524-5570
Defendant Woodforest National Bank
(as counsel Is not known as this party has not
yet answered)
MOTJOn TO Qu..\SH YmrTS OF GA.fUilStw£1(f
P~IU
Confidential information may have been redacted from tbc document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Deputy
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:r 04127110 $30,530.64 Sll.35
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;;. 04127111 $11,729.10 $0.43 Interest
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Attest: 9/29/2015
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Harris County, Texas
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Stan Stanart, County Clerk
Harris County, Texas
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Harris County, Texas
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Harris County, Texas
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Harris County, Texas
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Stan Stanart, County Clerk
Harris County, Texas
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Stan Stanart, County Clerk
Harris County, Texas
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Harris County, Texas
Deputy
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Stan Stanart, County CJerk
Harris County, Texas
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Stan Stanart, County Clerk
Harris County, Texas
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Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Deputy
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Stan Stanart, County Clerk
Harris County, Texas
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Harris County, Texas
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Harris County, Texas
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Harris County, Texas
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Stan Stanart, County Clerk
Harris County, Texas
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Harris County, Texas
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Stan Stanart, County Clerk
Harris County, Texas
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Harris County, Texas
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Stan Stanart, County Clerk
Harris County, Texas
Deputy
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A Certified Copy
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Stan Stanart, County Clerk
Harris County, Texas
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Stan Stanart, County Clerk
Harris County, Tens
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Stan Stanart, County Clerk
Harris County, Texas
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Stan Stanart, County Clerk
Harris County, Texas
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Stan Stanart, County Clerk
Harris County, Texas
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Harris County, Texas
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Stan Stanart, County Clerk
Harris County, Texas
Deputy
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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
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Stan Stanart, County Clerk
Harris County, Texas
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Stan Stanart, County Clerk
Harris County, Texas
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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
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Stan Stanart, County Clerk
Harris County, Texas
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Harris County, Texas
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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Deputy
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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
starling G. Sanechar Ill
Ill
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vs. §
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THE OMS GROUP, L.L.C. AND §
WOODFORli:ST NATIONAL §
BANK § liAl!RIS COtiNTY, TEXAS
Defendanr:s 1 PER WRIT BV CERTIFIED MAILED
APPLICATION FOR WRlT OF GARNJSBMENT1 PER WRIT11!1 b-1 p)f'
1().!1-2014
TO THE HONORABLE 1UDG!! OF SAID COURT:
COMES NOW, Rosemary and Jilke Foltyn (herelnafu:t referYed 10 ..
·~obors") 1111<1 milko:< this Appllce.till!l for Writ ot Oamlsluncnt againSt
Tbe OMS Group, L.L.C., and Woodforest National Baok, (hereinafter
referred to .. "Garnishees") 1111d, in support hereof, Glllllisbora would show
the~ the foUowing:
I.
1. Plalnllm/011mbbor& "' Rosemary and Jab Foltyn
Appl!ca~on !'or Writ of C•mtshmont Pagel
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Conlidcntial information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
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2, Defendanll0611llshee, The OMS Group, L.L.C., is a limited
!labUlty company doing 'business in TelCliS and may be served by serving its
... regi:oterod "'!•n~ via certified mall, retum ..-ipt "!l'est<:d.. Corporation
0 Service Company, DIBIA CSC -Lawyers Inca, 211 E. 7"' Sl.reet, Suite 620,
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0 Austin, TcxM7870l.
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3. DefendllllliOamllhee, Woodforost National Banlt is a privalely
held' bank doing busui..s in Toxas and may be served by pibeibis, 25231 (}rogan's Mill !U>ad, So ito
!00, The Woodlands, Tw 7138ll.
4. Venue ls appropriate ln Harm County, TCX``S b,..,ause the
Judpenl was rondered in Hwrls County, Texas,
n.
5, On or about March 21,20 I4, thls Cial se<:Utily
number to be 4S4-8l·:X:X:XX. Oamishm ,..e not seelllect on a Judgment. Garnlsbo11
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request that ifClom!shees, The OMS Group, L.L.C.,lll!d Woodllmst National
r
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Appllcatlon lorWrtt of Garnishment Pagl3
Confidential information may have been redacted from the document ln compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Deputy
...('1
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0 Bonk are Indebted !0 Kenneth Cooper McAfee by any ac<:ounl or olherwisc,
tt'l
that Oarnishce$ hold and allow Oarnishor.l tn garnish ssld belongi!'S)I.
O&rnlshors also rcqu..t thilllf Garnishee:! hold poHe"lons in a !Siecy dcposll
... box at any bra:nch that Garnishee:$ hold and allow OamlshOTS to gamish ssld
0
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belongings as permitwl by Jaw.
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N v.
8. Thla Application is supp!url, oJ\c:r considering 1ht pleadlnp, !he motion, the respo!Ue,lhny,
and thcOtEU""'ts of ""'''"'• is ofU.. opinion that rho Plolnlilf•'
S l~dptnt lo h,mbr
ORAN'I'.lm. DoftndOII~ Kcnl1e!h Coo!" MoAIU b liable to U..
Individual PWnd!!i for ..,.ing tho doalh oflheit daugbrer, ~en ..d credits, jlldsJneot In !he .lll!Ount of S!,OOO,OOO.OO. !Or hot
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Clllodohal pein and>uffttlng duo 10 the dcelh o!h, judgment In !he Olllount of Sl,OOO.OOO.OO, tor b~
0
N omotk>nal pain and su(!'m lbo dil< Ulls IUb WI!J !lied on Pci:>romY 23, 2011, unllllho t!llll
orjudgmco~ poll·judgmJ!IIY
........ ·' ...... ~
ron oma ao• 1m · ·
HOOilON. mwmsH,..
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Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
m
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J.ri
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EXHIBIT 2
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
0
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0
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Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
N
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0 ~lllllllliiXY Am>ual Report
0.
for
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1'1 TilE GMS GR01JP L!..C SALARY SAVINGS PLAN
This is a O\lllllllary of the annual report for the TilE GMS GROUP
LLC SALlll\Y S~VXNGS PLII.li, (Employer Idetxtification No,
22·3505264, Plan No. 051) for the period January 1, 2013 to
Deceml;>er 3l, 201<1. 'l'ha tumual report has· l>een fi;tei! With thp:iby Adlo1Zlistnti.oll.,. as riilqu.``! \Wa•r
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0
.·-<' .:;t.l):•H\'!IDPl<>!{Ge RetireiU&ilt Income Seour:l.ty Aat. <>f :1:974 '('i!!U.SA?.
N BAS:tC PINIINCIAl. STA'l'IDIBN'I'
senefi ts under the plan are provided by a trust (benefi te are
J>rovided in whole from trust funds) • Plan expenses were
$948,504. These expenses included $946,504 in benefits paid
to participants and beneficiaries. A total of 198 persons
we"e participants in or benefioisrieB of the plAn at tbe end
of the plan yea>', although not all of these pe'rsoile had. )let
·.·~ariled the right to reaeive benefits.
:ir'ne ;'vaJ:ue .i:>f plan IID!'iits, after ~Ubt:ra:otfng>'}ill.bil:i't;l,el\; S~ tolls
'·'plu.; 'o1iie'.l~:i,a53,:2ia'· ·as of' Xleoell\ber 3:1, ZOt!f eomparetl·ceo· · ·
s20,J80,393 as of January 1, 201!. Duri~g the' plan year the
plan experienced an increase in its net assets of $2,972,820~
Thi& increaee includes unrealized appreciation or depreciation
in the value of pla:D assets 1 that is, thG difference between
the value of the plan • s assets at the end of the year and the
value of the aosetB at tho begilli1ing of the year, o:r the eoet
of aaaet•· acquired dudn!J the year. The plsn had tot.al income
;:>f, ii;!,9'U,32.4,, l,nJ:>lUd.~Ag empl,ayer contributions .of.. $:_~9)~/)0 1.•.
e111pl;oyee contribution$ of $1.~63;191, galonii ·of $U3;4.76 ·f~:om··
'·,: . '.~ J::he i>au of usets and· earnings from inveotnieots of
·;; ... , '" ;'$``~74,85'1.
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YODR RIGHTS TO ADDITIONAl. INFORMATION,
reedve a eopy of the full annual
l:"o\1 have the right to
report, or any part thereof, "request. The items listed
below are iocluded in that report:
Ail accountant • s report' aud
A$ sets held' for investll!aDt.
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Sterling G. Senechal Ill
N .:- ·;,-•
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0 To obtain a copy of the full annual report, or any part
c. thereof, write or call the office of
0 Mr. Jerry Korn
:li 5N Regent Street, Suite 513
.... r..ivingaton, NJ 07039
You also have the· dqht to recent should be
addr,.ssed to: u.s. Depnrtmant of Labor. Employee Benefit•
Seoux:ity Administration, Public Diaclosure Room, 200
Constitution Avenue, Nil, Suite N-1513, Washington, D.c.
20210.
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9129/2015
Stan Stanart, County Clerk
Harris County, Texas
:f{~· ·:
TheGI.ISOtouo&``·;....
I1)
T01'AL PAR11ClPANTS ACCOUNT DAUI'ICES ll0,l5!.59
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ACCOUN1: CHANGE WAS TB.E RESULT OF TiiE FOLLOWING:
:1010 UHREi\1.12£0 AniUI)TMF.NT TO MKT 7.310.65
3070 011110~/ID INCOME :rtO.ii> Pbn C"Pian'l wu "'"'bli,~ed fut s
~tn amelllkd and ~:~ltd to cumply \\t\tb the finaf provisinnx ~nd cff«1ivc d.:!tcs of tlt.: Eeonomk Grawth
:md ·ra~ RdidR¢eOll!.::lUalion Ac::t of lUU. ("I!OTRkA") end the prO\Iisiom o(th¢ Jub Crcutlon nnd W-orker
' no:.: Act of200Z ~·JeW A.~ "l.
0 11\!a Sutnlnluy tlimi1h,. )W wilh • descnplioo oflb• PIAn and tb< b•duatfdU.oilhls Plan is biiSCd upon tb< c:ondltife ror FeUcrnl inconw- tu pwpo!e~.
7105 SUMMARY 0\!TLINES Ttlll WOI\K!NtlS ()f THij Pf~'IN ~NO IS NOT INTENDED TO
RESTAT1!1HO'fERMSOFT!lijPJ.I\N, THF. RIGHTS OF PARTIC:Il'A!ITS UNDER nlnPLAN'WlLL
flE OF.TEIL\iiNF.D SOLP.LY SY THE PROVlS!ONS OF THF. ~LAN OOCUMI!N1. ll' THI!ll~ IS A
CONl'LII::-rer:TWR!!NTiliSSUMMARY ANDn-IEP(AN, THENTHETE!tN!SOPTI!l!PLANWltt
i~111esnUy gov-•HP!sn opriDN,l>OI\nlc•il"cC:o(•pany1 :Thd'.lm
"'')' be read dt; !lie
C.omp:my•s ti\lingstnn otlice.
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
I.
NAME Of PLAN: TilE OMS ORO\JP, L.l..C. SA !.All.Y SA VJNGS PLAN
PLAN SER!AL NO.: Oil I
,..<;!
c PLIN ADMINISTRATOR; THE OMS GROUP, L.L.C.
.S Nurth RcJS,Onl Str«~t~ Suite: 5ll
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0 Uvinplon. N1 07039
N 9'll-l35·5QOorllst
N..ANY8AR: Forpurposc• PI"' ·
Yeurit a 12·monUi period. C:nding"on the alion t\hh.i~cnraty PAte~
l, 1'RUS7" AND TRUSrEES
A Trust hu bect~ t'W~:htfithed to fCCd ..>t CQnlribu!innA mfl.d.e uudl!r the Plan. Al the titTtt lbiJ
SummAry w.;u prepar.ed. ihe Collowing fndividUllft w~re :~erving as lhc TNStO'Cfi ofttw Trusr.
l:!bMll ll!lJi!NESS 1\l!DllJ!l!S
Jl!AAY KOliN S llonh l!egtor Stre<; 'Suit• 513
TIMotHY J:DeNoalll! Lirln!!!tOl!, Nr07llJ~ '
3. ~DMfNISTM110N (!P Tlf(! PLAN
The Plan At\ministntlut wm e:dm.inU\~r tbe Pitm and wUt be teqlonsib1-e. rot k.c~ing th.~ t«0 ~.
0
N t;;· . WN'iRtiicrriof{s.
(<) EW'f,OYEE DEF!i/IJULS
When you ~come ;1 Ptulicip3nt in lhec Plan, Y\fU mma a.4o aulborlt.e the amount ufyour Bn.lary you
wish to ~::fer~ o. contribution to lhe PJcn. 'T'be:3c contn'bU1ion$1.1fe whatcvor pol1ion o( your compensation
you cboos:!l:l to defer up k.! n mu.llimwn of Udy (SO%) pt:recnl of ynurCompe,rwuioll (but Jnno evt:l\1 !hall
your 401(k) s~huy def~al c;o.ninlrntion in a ce.ltndllr yt:ar cx.::ced .si~lem Tht'1UUJ1d·Yivt Hu.``1
($16',S00) Pollnrs t'..-.1010 all!l20ll'). 'lli<·Compa!'J', stits·di$cte!!qo,mAY1"'1i.
YOI\r, yoU may btl endllctlmotbOPI•nY"!•l'®•"'''"'"'· Th«ills odjustmebro by !be ~of.~.
tryou m cUI!Il>i< nnd • .-. initoh--llP)ll' or "'h olhot timo t>ber of each yevr).
AdminisfC¥1\lf'
mt'dly~t)tn.
$'11$pend wiibbahllnt authnritntinn. you Ny elect to resume 401()) s;ll:l!)' deferml contribuUons at any
Entry Date {tbc firJt day of JonU;tl}', April, Jui)l and Oc\Obcr of c.cc:h year).. by notif"yinslhe Plllll Admiu-
istmtor ill \Vl'iting nt l¢a.it ten (10) dJ:Iys or such other time ['K:riod rk!!WC'd by tbt Pbtn Admlt;Ut:ator, prior
to the tiC."tt Enuy U:ue for whi'h 1M tlcetion (0 rc.5ume suluty dcfcrmJ oonfribtllions U. to be eO"eellve,
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Deputy
In accordance. \\itb th~ fk:pAruneol of Ubor•s requircmenU. 4:0l(k} saJary dc:ferrat fl:onttihut.iOnl
madt- by yon wiJI bt f'l1'\'l·::uded ro lh~ Trusl"s for investment t.Ui proorprly as pouibft- after lhey bavc been
withh¢ld lind crediu:d 10 l'OUt :t:t.lary t.ltJCrniltt~Owt\ und¢r the Plan.
The Code pi~ a lin1iLoo the MlOUUl of 40t(k) &DluydcrcrrAI contribution' which nay be m2dc
in nn)' ooo Plan. Yut byl\lt!hl1 ccmpe.,.tcd l!"fliciP>nl<. lf)'Oilnl< affected, )l(lU wiU be nised of dlt'
iimirtn1 -efl'celh'M'cllclrf!UmYarandiUJ)'EimoWtllC011tributtdtoyours:Waij'``aecount.wiJI.bQa.dju$.t·
.nl m:«mllnply. Ally,~ dUtbcd limitswl!lbOrelll;n"'!f!>."'.with11tf\'/o
. •C:hnd on<:J1>!£t"\7)moolhonftiot'me'<)ldoftho Pl.., Year oru!,willbcoon~'tiolt'llie~ ·
. : •\;>Jni,inrh 'ihc tiplo)!CC •vllodutiJla th• Plnn y.., orptcceding Pllln Yoatawned mo(S%Jjl0m:ntof.tb«l<>llll YllllllJIPowlll'
o(tbc Com-pany;
an l!mplo)'t'C wbo dulillp.tlu: ~Plan Year hod ••iul•(Comf'!'~l! .lf~
Complll)'on ot'"iend'.oryoarha.!io in.:xew ofOne Hundred and'!'.. Tho~s..,d (Sl IMOO}
oOUnrs rnrCon~nsotinn corned in 1.009. 2010 Rttd in lOt t forlbt ~or pcdnrm.in~
lhcdb-crimin:~tiontesrtuA .tel fttrthurnier S«tiotu4QI{k)lll'kl411l{m}onhe Code~ was
llMrlp,
'lOll "!Slb<.Cflll'lo,l"~ on,lhcJ.,t day pf\hl: ~Inn 'lcllt al>J>l`` a.Yt;or of.~\:o
· ~dng!h'ePlM:YilJirtO'i>o.,tiutdi.\sli•relnnliyCoti>p..yllllP<'l>;ltSecllon6o)·wti... co'i"''.~Yl¢·1idllf~"!,C'tf. and !fumt1listn <•t'lrn:uij,C._rur·~ COmpaoy, doe>nol'pl..,c tM tmploY"O' a:tola! illon:~ the . . .
highly eompen:w..s' emphi)'OC'JcwL
The. m:u:inium amoum: o( ecmpt.tt.s:uhm 1hnt fll.ll)' be t:lken into uccoont in detent~iuing ;wdlor
aU(tl;atinQ Cntnpo.f'ly .:tJmributions tu tbe Pl;m $halt be: Two Hundred and Forty~F'h-..: Thot1t11nd (Sl4S~000)
';) Dolla~• for tt.. lOIO PIM 'I<'Jf und may b< llr!•t~tlllll'l!>n.oam~oolll!-belirt!ll«ltO OOI~o~cddf!rin¥1``pcriOfj;~.fin Woli }1>U ore al'.iillc!fuul!·m ihi'J>j'" Mdli>r clii;lbl<;> wniob, '"~'<"""'u!tl qtttof
>llOh.a Honl.rup dlstribu~on, tb< ufel»>borrulcs oflhcT"""YRtm. (6) oro.Ua, Th<~<•llir, .Yil\i ma~ lt>cnti:t lb< Plan on ;
Ap.n, lull' and'Oqobcrof ~·l'Wl id!or tho ~iy sb. (6J monilnv•Pcniion.
tb) A GS S~ I>ISTRIHtrrlQNS
tf )'OU haw. attained tln! ``of fifty-nia(l. Md oo.t4udf (:\9!-;). yuu mny requc:st ia 'A'filing that the
Plo.n 1\dnlinl:otro~tur apprmf!.d,hy'lf><..C•~•."ec <•tl}' Pfan Y•=t·)'< lOX ott ;ill eatly witl!drowols front all quallf..d plam tllltt arc lnclulian not bo l!l!bjcct to lhio ex);
0
N Di~tributium, xu: :t result of !.he- P:u"ticlprun'A: denth;
!"'
:r,•" Db1n"butionsJ~:S a result nf tho Ptlrticipt~lll'r pmnnnevt diubiJlty;
O!tlrlbu5ons (tom fhcl'l>n af\cr yaur ,.Wimllon fbam.R!>icl! !Aalllt'C !"!ir!;t~ fQU ill thO
"
Jbrmofst.i»WI\Ilti oqiml periodic~ JbryaurfifirO..m~ll )'Our llifi.-d ro!il,.nent ploa orio !l!llndMdtt•l
Retirement AC(,O\tnt the Um!tnployrnet\1 COlnpcMntion ``n1mdn:'1C!nu t~f f992 n-quin.-s \hn1 the Tnuite\
withhold h¥enly {20%) pcrc~lt of IJ:u: di&tributiol\ (()~" inoon~ l!iXts. Und~r '"ertain circum.itJtnca:, all or a
punion of a distribution m»y 1101 qtulify !or 3 direct ttotn>rtT or mlltwcr to another plan or l:ndMdualltctirc~
mont Accoon.t. Prior In rc«iving s di.'ltn'bulion fiUl'n !he Plan. th~ Plan Adrnini'fb'ntor will d.::liver to you a
mort dt::r3Ucd CJ5planation or the distribution opdou; twaltabft under lhc Pluu. Yotl shoufd <:Onsult with a
qualified tnK o:nmicl be(or~ m.'\king .u rho ice regarding •ny di11tribution.
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
8.
Ylllrrnom.,hm~t u•••
for Jl"rpcm ofth< Pian Is yourslxl}'·nllh !65th) birthdAy. .~t nm.
0 men1 1 )'OU WiH be tntitle.d 10 rweivc \be fiiU IUllO\l.lll t:TCtiiJt:d IO your Llcetltm\.
Lr)
1ilf Pl>n.prmides !Iter dim:jbulions 11 retiteroouf may be nutdeln·U.. fonu ofu !Ulllp"m
d!:illilrution. Tho •mount to be dislriblll 1"' JI.•~••
prec<'tling.l"'"~i•tr'll>Vtioll. SINCB !IACH !NDIV!DUJ\t.'S SlTUATIO!-i IS Jffl~Qt,l.ll;;J'T./S 1\EC!OM'·
'\! ME!'IDETl'r!l/I.'TYOUCOIISI.IL'i;Wti:!IYOURTI\X/P!NANC!AL.mV!sGMlt'l'O'rifu1'il\i!NOO~
I'UL"R lllSTRffiUTION FROM TlfE PI..AN'.
0
1.\1 i. llfM Til BltN/JFJT.r
0
N Upon your doo.th, the entire amount ;-lt'dittd to your Accowll und~ tho Phm wut be. dl'>tdhuted lo
your bcnr:ficluy in tbo. form of o lutnp-'Sl.lm distribution.
You willbcP!"vidm,d.
1>1'1),1ioiuywiU aUIOil!'lricallfbo YG"! SflO'IIf(Uil...,.:\'00 ele<:tlllh~•.lJiiJl.
``~?~,::;,. ;~ l'lo~ 1.\-..introD«l by fedm!l>.w'O® tii,.su.t!ifh<.·rt..>s
fl sex. who is lawfUJ1y matriN to)'®, i& dCfittit ak 1n" tM De·
fwse ofMillniOSC" Ad <,i'ub L. No 104~199, llO Sun. 24lil).
l'hit bent!ftdnrr de$ig.n.11tiOn m11)' be c.h.ung,l:d rmm 11m.: f\l t1me 1\5 lnng ns the pt(lt»r romu aro
t:Oillp!t:lt.'tl. rf no dtsif,n-:Hion is ln.Od¢1 Sl.lcll 011lotUll will hi: paid fn youn:poU5C'~ lffiVi¥1-(h Ofiwf'Wi.W: tO )biU
eblhlrcn.and lfth!!rebc none. then 10 yuur estate,
lf them hM bolm b change in your m~riral st~IUS._ it is yuuc ``l>i~i~y lf? ·`` a_ ``gc of
ll<:ncfiml)' fotm wiU! tb<.H1lnw! lte.oulID. !}fSAHIUTY RENEPt'f§
lu the cvctlt that yilu become in~plblc ofperfl)nning atty entploytncl\twhith would be opproprbue
fM your 1>rior t1hj'!ih.--aJ satus, iruclletnru ability nnd ~:roperitth:c, duoln rnr:ntal or p.bysiC>~J db:ftbilil)' nnd
which will hnve beC'n t¢rtificd: t.:'l: by :u; independent physk.iau, you witi be tOUSUh:ted tube rttittd.
UyctJ p~tp00e.y.ouv,¢,tlteme1n ~od yew oonml todrcmt'Jif,datc1 ~-~)'·CctR;lirt'R~·~ke
·;40j (~l••liri·:ddi:mil'f!fT/bNABOUTTlji(JM
'!ltc T•~ il9,l!l\Y.:Olld fJ,..f.~bllil)' Aol ITEFM) _, Clll<:fTI!I'll.A ~ll>i!·.~loyoUo p!'J"ideo•
mlnilimm conttlbulion foh!ll.mpioy<., iw1fclj>Jltinghu Pl.. tllat is a<.,.,•o to liO "top-h<•>'l''• If, during
:.ny nh•en ycur. sixiy (GO%) ~tor murc: urUte tot1d ao:ctl\lnt ~leutes ofal1 Prnici:pant:S arc for the
benefit of key em1linyt¢:~. (i.e., .,mc:w:rs. or rub$1anlill owners} the phut wiU be deewcd to bt, top-heavy.
15. /,QANS TO PAR71CUW11Ji
With the COUJ'Ult rJ( tlie P.lnu 's TJU!ih!tlit you wiU be entitled to bQ.ftDw. fcol:ll ~ l~ &&J!1~ the
v.dut nt,;s-our I!IC:count:b~'!UI.ttr l.lttht Fbm. Theinlnimu.in 3'tl'K)Wlt)•ou wilt bc·.``tlt~·1.o 'bOJ:tow1fQ.Qi ~¢.
Plou LtOn• Thouocnd (Sl,llOO) Dnlbm The !l!!!!iml!!:l!•mo•n• l"'1l wiU t;o.cntl11cMo bomwii<>ttllh< P!im
wbl bo tb•lcucr of!
Fiftyf:iO'tV) pe~nt nrthc Ye5tcd amouotl)f)'l1Ul" AectlttnlJJalancc llS oflbc valuation d.At.,
prhtt f\) tbc dale you llpplj• rnr ihc ~l'nt or
Fifty Tha\lliend {SSU~lOO} l>o\bn:.. NolwiUtslaudiug Mytbing to the tua~ntry. the Fifl)'
Thou,..tul (S~O.OOOl Dollor Otnotlnt shall be rodut!ihe wlu.>tlon·dnte lmmel in availinsyonrselfofthio P!Jo opllon, you sbo)l!d•o<;lifyJJ!•.PII>l'/l.!lm~·
loz.i.......Uota}fln ui)I"IO det.,.;Jiowl\OI')'O1ied OVlY with Soelion 41J«e) of tile Employee R~'"''
Ac.~'fmt.h``'~< an oppotiUIII\y:!t>o~oose·lil>tll .
In''"",Vc;,mJ:«>~_for >~o ;j!iwo aW.t 4rolh~•d!fll.Jl!!;f$n\ri a
fe. rrom tho end
of t.ueh initint -peric.d. T'kc ext~ion nOOec shall il\di~1c ili~ spcciol ci[cumsurnw r.:q.uiri:ug mcro:nJJon
i. or lin)~ !md the' d!'\<> l)y whle~ tbo Ploa ~tor '"~"''" to nnultr 1M llnal d~lon. !C lllcn> is a
i d iuuawmg. · ·
Th< iP«!liouuo~or."""' Cot !lie d.,lisl,
~pecifie R:fe«:uee to the $ltl:1inc:nt Pttn p«l"ir.ions no whiclt the dcnint i& based.
A iksa-iption of 1m; mattrio.J.nnd inrornl.:ftiun necn,ary tn perfe-ettbe cJahn and c:n t:\pf:J..
muioa of why such tnntcrlnl ~d int'C111l~ttion is nc:cess::uy.
Wllhlo il"'Y {6U) d•Y< of n:eqlving a Mlie< den;olll!l• ol•lnl w{tplly orll•t!l;lly, th~ clol\li'!U'nm)'
•Jll"'l sucll dtlnl i~·ivrnloi:'"d
e.omotn liN r-·tbr-wldi>~·Ol!tk elaun is mOilc: 1h< •:Jl>it•mm m•yr~)ll! ~I"I~Jrovldn pailil,. ell pt..,_ di>c:limc"' !nC!odlll!llii>W'IlnU ~lmtn;cl:l; .;iilltotlv~
·!0
Confidential information may have been redacted from the document in compliance with the Public fnformation Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
:"·i.
i~
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!D
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ti'J
0 C.f!!•lning apm<111>, MU • top)' ortbola!.,.laonual n:port (Fonu SSOO Serl..) Ulcc Pktolent of Loboran~ u"'ilohlo at tl!o Public Dlsdosure Rootn of
thC' Employee Dencftu. St<:Wity A4ruin1urv.tion.
0
·.t. • Obt:lin. uqon wrttted.
,..
u"' . ~roHrnt oC!I>e•PI.,,
$Ctipfion. The f'J:nl Adminiflralol' fYPY l'n!l.ke a. I'I:!Ut:.m~blo c:hCif80 for lbo eopits.
'It R~ccive a 11Un1t11ary pfthto Plan'.;; .wwat firuuteitd r.oport. Tite Plnn Adroinisl.r:J.tor is r;:.
quired b~·lnw to furn~1 c11eh pmticipinl wilh a copy orthii :'1Ulllmll:f)' a:uwo.J tepan:.
0
t\1 Obtcil'l., stnl¢tntmf tullingyou wbefbt;r you b.1ve n riglu to receive a pcru;ion nl your otmmll
0 t<:\\remt·aidatc. uiid If so. Wbat'youibeuefiln woula Oe at ytjtlfinOnntt i:tH~fdaiO if ,YOu
N &tOp\\-ol'ting.undctl.bePJanM\V, tfynudOnothiM;Iniigbi:Oa~d\es~tcmmtwiU
toUyoubowmMy""Y"'"YJ>Ohli'"'IO"'o'klu.h:lve.o~rlJ!~fli>
bow, whY thil wu.dol}C, tO o,b~.hs: ~tcs.pfdocumcnu cdndnr to ihc dc,!tiOO·~t~vf,chMsr~· Sn«-to
· li.la"it'an'Y atnh,(-at\ Withtn tOrtai"D·ltrnc-~Cb:tnMi;. · · · ··
Under ERJS;\. tbere uc ~tcp:s you. can w~ to enforte i.he llbove rightli, 'for instanc::c, if you request
acupy ufl1lundocuments:utd•tt latesiiU\rtu.'ll report &om the Plan ``nd lionut n.'tclVt: them \~oithin t:h.irty (30)
dn.ys:. yuu m•.r m~ sui1 in a tl:dernl court. In .$UCh s cua, the court nu1y mJUirt rhe Tru!itecl to provide the
mnlcriuts and pay you np to $ll0 BdA)' unlil yuu receive W m.l1trild:ii. unless the. mtntrloin were not stnt
becuuse aff\.'"ll.Sons btyond 1be t-ontml orthc Pl11n Adminil!trnJor. lfyoulmvt->tcf.tim furllaehet'Jcfitswhicb
iJ denied ot isnored. in wbuk or in p;lrt. you may 01.: suit in a sL:It0 or (edcrnl court. !n addition. if you
di:sngrec wlth the Pion Adminhtm:or't.: detisiort or(J_d thc.rcofccmcerningrbo qbNtiliod s::tnis oh domntk:
'rtlktiol10 oni«'oia modlt.loblld s!lpllorr o!OO, you may ni. suitl~.l\:dei>l 'CilOrl; '
· • . lElt>ll61>ldhor>P"l.'!iulrir1.anlldlleil>t~m1""ruoP!an~moncy,o>l{X\)Ii~!i>c!lsl¢'ii;Aini<
fnS)•.it.eli o>rlolo!ICe fif, tmti~.or t1.S. Dtpat1.1Mnt otLabort listed in your ~!~Ph~ ~irtt1(9!YOt,tb~f}iyYitin.
· ~·:1'«~n;c.rA$S"~<,.ril)' Aaruinl,tr.o;,n,~_;!l<·D¥on~.U'.'>f.
, :·;, :-``"f~O!J~iilti\'!,~?".;r\v.Uu•·N,W.;W~lbill&tort D.C.10210. YilUtnl!Y'I\hi>'nblaln~nl)Ubli«UjO(Or,
ll
Confidential information may have been redacted from the document in compliance with the Public To formation Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
r...
2 }Jr;~;{,-;;~-)1>uiri£h., ~nsi!lUlllc<·ul!d•rill' 11<:1 ur.l974)•. \Joli«,S~•doli
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;,. (q04tv..J of•oyiiability tin riJJ.y llliO.S ymi·i....,f. ..·a'nlslifl or
" )'t'urinveatmcm 'in.\inn:dotu sl'td decistom. To obo!in lhJs rellef. tbe Plan uwsr meet cmnfn oond.mons.
Then conditions .uc. tumrnnrit..ad beiO\\I.
0
c-J Rroad fb:pgt:c( Invurattot Aftcrmtth•c:s. To comply wiih Scc:li(m 404(c) ~f ERISA. partic:ip3tUs mun
0 hAve nn opponunity to chom:t fnun a bfolld range t>finveftm~nt Of!tionll thG\ feprtit..'nt a .-o;oftablo dhl!lolp•nlll are. •llow.d lo uw.,llltI{<)<>rEIUl!A, partioipnnli ~m~«·i>o providclsiiffi.
dent tnromu.uion '"make hribm1ed invc&ttntnt ~eisil)tl.S.
Sint:t ;he Pbn doe& NO'f pru\'We apro--dcterrointd fiJ:tl1 iis.l ofinvcslmcnt chofc~ you~ the pllrticiptmt. sr<:
reminttcd tbat yotl should requo1 and oblain 1111 oeccs.wy rmd relevant infurm:a:tio!l ~rdinu ony inve&t~
ment you an: ~unsiW::ring nnd!or ehoosinJ (e.g.. PI'OF{I>t~lus. pe~ncc histar:r~ investment objective$.
~:~o:pcnaes end lbes. vob1Hhy. etc..). Before- you t~k~ Any inmtmtntdodsioa, you $hoWd rtod and study
cnrefuUy Wl Ofthe infann.1Uon ~s;arding.tbt ill~mcmt Rcmtmb\!.(, v\tu srf tlie one legaflyra..;n~·~·1.,\(fvll:o, Silt..,nonha:U..P!an Admllll>irul!tt(lh.n~ ~ .. ~lsti:A.r.i.i!~ot'Ond
tlie truucc(a:) do'NOT otftrr nny.ad\1Ct wUh rttpttt to the ln\-ettnlenl oryour 1ecount ~iittllihetf Undettbe
Phm. AU int"C!ftmc::ntdeubin:n1 bdona: tn the pt1rtitipan1. 1md sheu1d bt: b·ued un ~ch pun'clp3n"1 \hart and
fnit$·fcrm fin::uu:i:d ~0.11.\ $nd ll'C:cdll.
L•r()('e,uing Your frn1:snne:ot hutrutUon5. Your IICC:Otli'U ectiviiy :md account $tlllcuteltlS: mny be
viewed by OCi:'C'.S~in~ }'Llttr nr~ount tbroogh the office S)'Stcm.
in tq(' JCT'l/CY C'(l)•, 'N'~tw Jmcy office or the Hotmon-. r(::(S$ off"te9t yQ_U am ftq)h) )"llUi
J[Viill ltn: Wl;\'rkill}J
bt{;tl't``~l'l~-tte~if~·n;i~r~.S~·``U,iu:me orcrntklns ~t:lo'cau:d 'ire your offi~ ·
13
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
````````~----Deputy
Stenlng G. Seneohef Ill
:; . ~-;l,~ /lf~'linre.wnr!;;i,~ in ·"'!Y of lhoofll.ccslilted b~ow, )'OlLCllll hovo)'OD~ln~.t.l~i!n>,tru'l(~"'\ P.\~<4
·;;r.,:£{:V·jhrouflh lho·livintuton OpaiiU:oJio Pq•of!menL,. ~i>e o«<>niP.1~hei! o7jci:l!iJI!;Iho',\'i\lllii oiii)>bittg$tM. Mc;w Jr:my
Jme,f City. ~cw Jmey
Ool;'..ll R.31on~ florida
Otccnwieoh. C.onncctiC!ut
Ml!tttti, Florida
Sptfugficlt!, P'CtiM)'Ivanb
0
N :,.\ttauuf ftois._ 1'1\ero·ara vatitJUs ````~find fcca Wl).eintcdwith.~ &w~rm~t·iQ."'r:utti~.(e.g.
0 jiro;:miny or, a lnd~)·w1Udl i'li~ O.el~rge to
N rOnSfOO tllt·fC4i:and·~ru;;s in ·m,il.tinit rour it:t'ltl\mtnt dUifi\OUS.
J( you have :ny quc.'!Liml! tt.--g:~.nJing thil Nolk.~ pleUd t-001.1\cl Timathy J. Don<1h~ lU ('SOO) 463.-6230.
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Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Tab5
Notice to Court
FILED
117/2015 4:32:36 PM
- ·-~ ~'"l"ftY Sian Slanart
Counly Cler1<
DATAENTRYrs ~
·,
Harris Counly
ANM PICK UP TillS D . PROBATE COURT 1
r-J 522 Cause No. 396935-401
C)
C)
INRE § IN THE PROBATE COURT
(.). JANET F. McAFEE, §
Deceased §
IXl §
C) ROSEMARY FOLTYN and § N0.1
U'i JAKEFOLTYN §
§
v. §
,.. THE GMS GROUP, LLC and §
WOODFOREST NATIONAL BANK, §
Defendants § H~SCOUNTY,TEXAS
NOTICE TO COURT
Comes now, M. Elizabeth Duff, counsel for the Estate of Janet Foltyn McAfee, Deceased.
It has come to the attention of the Estate that Charles Storer, Power of Attorney for Charles
McAfee, Defendant, herein is trying to access funds of the Estate in its Motion to Quash Writs of
Garnishment, as set for he~l~gJanuary 8, 2015 at II :00 a.m. The Estate objects to the Motion as
the Estate claims an interAsr:i~ these funds. Please see the attached Order Approving Inventory
•.
filed and approved by this Court on May 21 , 2014, referenced herein as Exl!ibit A. The Estate
respectfully requests the Motion to Quash Writs of Garnishments be denied or stayed until all
matters may be heard as the Motions all involve the characterization of the funds. Counsel for the
Estate, M. Elizabeth Duff is in the process of preparing the Motion to Release Funds frozen by the
Agreed Order for Temporarilnjunctions in Cause No. 396935 of this Court, referenced herein as
Exilibit B. There has been-~o opposition by Mr. McAfee or his counsel to the Inventory or division
of the funds. It is in the best interest of the parties to hear all matters contemporaneously. Further,
counsel for the Estate, M .. Eiizabeth Duff, was not notified of the January 8, 2015 Hearing in this
Confidential information may have been red acted from the document in complia nce with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Har ris County, Texas
At;_~d
G.
. o
lit
St rUng Senechal
Deputy
Court. Please see the attached Notice of Hearing, referenced herein as Exllibit C. M. Elizabeth
Duff is unable to attend the Hearing however is available by telephone.
Respectfully submitted,
~::chell & Duff, LL~
Mru{tL~
Texas Bar No. 06166880
210 Main Street
FUchrnond, Texas 77469
Tel. (281) 341-1718
Fax. (281) 341-5517
Email: eduff@mitchellandduff.com
Attorney for Estate of Rosemary F. McAfee,
Deceased
Confidential information m ay have been redacted from the document in compliance with the Public Infor m ation Act.
A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Harris County, Texas
~
`` .A
~rling
~
4L
~ - . Q
. , . , . .~_Deputy
G Senechal Ill
'iJ Certificate of Service
Cl
"'
'-I
I certify that on January 7, 2015 a true and correct copy ofthe Motion to Release TemporBry
C)
0. Injunction was served on all parties.
Esther Anderson
Anderson Pfeiffer, PC
845 FM 517 West, Suite 200
Dickinson, TX 77539
Via Fax: (281) 614-5205
Matthew Lipman
Faust Oppenheim, LLP
488 Madison Ave.
New York, NY I 0022
Via Fax: (212) 371-8410
Dean M. Blumrosen, Esq.
4615 Southwest Freeway, Suite 850
Houston, TX 77027
Via Fax: (713) 524-5570
Woodforest National Bank
Registered Agent: James D. Dreibelbis
25231 Grogan's Mill Road, Suite 100
The Woodlands, TX 77380
Via CMRRR# 7014051000086589226
C on fide ntial information m ay h ave been red acted from the document in complia nce with the P ublic Infor m ation Act.
A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Harris County, Texas
vo&OP
``(;:!(UP TinS DATI!
No.lt69l5 ~..,
JNniEtSTATitOP Ill Till: l'llOB~TB COVJIT
JM
Co-owa~C~J: NoM
Docedeal'll =crut: SO%
ConndcnUallnform•llon ml)' hne been redacted from tho dotument In complhtncc with the fubllc lnform11Uon Act.
A Ccruned Copy
A nut: 811011014
Stan Stannrt, County Clerk
Harris County, Tun
~llNw~ Deputy
Consuelo Arroyo
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A4d o
Sterling G. Senechal 111
Deputy
...,
a
A~UQtfl
...
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0
0
1nntMion: Tho OMS Croup, UC
A-I)'PC: B111kuqcAoo>o"
""">'CDNo: ""->ccr911
n. II.
~
Toed \'alue of utat: 50.00 on d~ Q( de.~ Ill
l.caa ~-Ma~poua lhn: so.oo SQ.QQ
N t:o-.o'M!cn: None
v o..cd.,.f,lllmn: SO%
., AcCOWJ~I4
loi!INiior>: Tile OMS Droop, LI.C
!!'...
0 A"OUD\ t)'pr. 'Brokcrap Ac:co\m~
N AeeouaiiCONo: DI'-DX612
N ToL&I-..I~tC"ofUMt SO.OO acSac. afde~lh
N
Leu ~Untvtq lpoult IbM: so.oo so.oo
u·1 CO.OW``Grt: Hoo.
OcccdtDI'J1aw-t: SOK
AccoW~tMS
lrwdnniol\! ln. OMS Orwp, LLC
A~\~: Btokcqc AGOOWU
~UDVCD.No: gx ·~ae~:6'0.S
ToLil 'W'Ilue ofUkl: $425,03-4.70 oad.ll&: ofdeath
... Lc.usurvtviDa~rJ~CUM~thln: S
eo..owncn: Nooe
,,.,,'121-:{.')\
SI70,6Sl.ll
"'
1.·•
Aooou:zrtl4
~...~ `` ...
Oceedcut'alnt~ S~ ofOOZIIInaDI~ ,C.1r\Mo
loniMion: Wollo Poup Nallooal BIOI<
Moow11 type: Ch.ccti:Da
Mcoun~CDN'o: ~114
ToW vtJ~,~, of Uole't: $519,76 on`` or dca\h
1.ct.11 nrv\vlzla 'PV"~ lllww: $
Ca.oWDm: None
Dcccdcnl'l (DtuRt SOK
AccoWitrt
INiil\llloo: Wood !'oral No~onoJ Baolt
Acco\1111 type: CbccklDa. opc.gcd by Kcn``cd! Mt.Afail dllrlas PIUTiqo wilh leU(, on
So:piOIIIbco' 29, 200?.
Acc;ouar/CD 'No: XJJCaU404
Tc:a&l -,.l~ Dl um: Sll,l.SIS,9l oo ch~ of eSc.til
La1 Nnivlri&IIIQWOaben:: S $19,121.<46
Co-owncn: At dw ofdul.b. •aac.
~.nt. Ullcrcn: .SD'K
Conndcntr•llnform•lfon m•y han baen ndtded rrom rhe doc:umenl Ia c:ompllftnct wllh lh1 Public: lnnmnallon Art.
A Certlned Copy
AIIOJI: 8/lO/lOU
Stan Stanart, County Clerk
Harris County, Tu••
Deputy
.•.I
Confidential information may have been redacted from the document in compliance with the Public Infor mation Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A~G Sterling G. Senechaf Ill
Deputy
--------· .- -· -
m
C)
2. MOTOR VJ:BlCLIS:
Cl 0 Vehicle II
Cl 0 Dcocripcloo: l006MmlaMI.tm(MX·'>
c. Q.
~
Will: ''"'''"'""''nax.m
ToW VIJ~Je; Sll,l30.00 an d1tt ofdc:t.th
1.ca NMvtoatpW~e•h..-c~: sq,4Jj.OO> s6,m .oo
N
co ... t:o-G~:Nont
Docadcnr'l fntant: SO'ti
C) ... Vohlolci'Z
if1 ~
0
Dcocrlplloo: 1959 Mm 12.m.oo
Ill Co-o'llmff'l: NoN
111 0 Ooc:c:dc:Dr. lnlui.C SOM.
V~ltU
De~Q'tpd 12.145.00
Co-OWDcn: Nont
Oa:.dtnl'•ld~: SOY.
3. HOUSI!:IIOLD l'tiiUIISIIINGS;
IIOUKJ>old l\lml"' aod 1\Ralolllnp 114,000.00
TOQIV~IIC: Sl4,000CQdalcofclcoll1
Lea l'lln'lvLca rpoUMGlarc: t<7,00CI.OG> 11,000
~Noac
DoccdCDI'J l.att:ral: ~
ma.sn.ts
oaMirotdutb
SEPAJtATE FROWSTY
I. REAL PROPERTY!
Conndonlh•i information m•r hvt bun rtdlded from tl'lc doc:ument In tompllanc:• 'With lhe Public lnrormnlhm AtL
A CcrllOtd Copy
Allest: 8/ZO/l014
Stan Stan art, County Clerk
Htrrls CaYnty, Texas
~llNw~
Arrovo
f"'nnctt<>ln
Pcputy
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A4d Sterflng G. Sanechallll
a Deputy
(j)
t,:)
(;
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ul
:::..;z ~=:~Gb.lw 10 9IOI.o69).7019<61, ClUJ lD 101617 $64,!JD.OD
Toeal Value: S64,$SO.OCI
=
Co-owurs: NOM
Do-1•"""100!\
l!.r;ss]§DI!SCRD"l10ll·
Ia~ t. Mmiorda Cogcrty- 0.003136, 0010619, Sab-Pc~ll Ou U.a.I11Jl,
5q'll: m m Sl,49l.OO
ToDJ Val~: n,49S.DO
C)
,.. Co-aWIIcn: HOM
~tlAitnl\: 100'K
Cl .. CASU IN BANXS'
Ac;CO\II"'III
lolliM!on: Th• OMS O. LtC
A.OOOI.IIM t)'pO: Brokmaa: A.t.cDUrtl
A``'No: IOQI;.a;:t479
$3,440.01
To\al Va!•: S :3,440.01
Co-oWDCn: Non•
DoccdcDhlalcmt 100l41
A~t•z
lAnfiULiOD; 'Jk OMS OraUPI U.C
Acco\M\ 1rpc: Brakcnp Aoeo\1111
Al:coaaiiCONo: X'l.:ll·.n.Oil
116,<20.66
Tom.! Value: $36,420.66
Co-oWOCil: Ne~:~t
Docfdonl't !Dtm:J1: I 00%
Conhdcnll•llnrormatlon may hnc bun ndaclcd rrom thJ do~vmt"lln tompll~nco wtch lhc Pr.ab11c lnform•llon AcL
/>. Certified Copy
/>.tltot: Bfl0/l014
Stan Stanart, County Clerk
He rril County, Teras
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
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Conndcnf111llr1fonnr\tJon mil)' lrua been ndKctrd rrom lha docunanlln comp11lllntt w~tb tht l'ubllc tnronn11llon Act.
A CertiOed Copy
AIIOII: 8/l0/.1014
Stan Stnnart, County Clerk
Rarrft County, Texu
~Jr~ANwrr
Consuelo Arrovo
Dcpuly
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
.;
liTA'IIOP'mW
e<>m
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Deputy
0&108/lOH IIKD ''lO ru 7lll243LLl Lov O!fioe llJOOti_Dll
06/07./2011 10:58 lftc:lleU t. Duff Attorneys at Law fAX)m341m7 P.004f011
l[l
,..
CJ
(.:l
n. Wldlll' any address rela~ to eitheroi'them, wch as a puvlous residence, .rehrtion,repre5c:ntaliw, or
0:.1 sttomey'a addresa, or con1pany which clld buslncas on behalf ofol1her Kenneth McAfee or Janet F.
Cl
McAfee or which wu owned In wholo or io part by oltber or both of them. The addre&Se8 include,
...Lrl but are not Umlted to, the following;
If)
I. PO Box 66352, Houston Tmw, 77266
t'·
~·
\li 2. PO Box 460786 Hollllo.o, Texes, 770S6
co
Cl 3. 66SO Falr11eld Stroet Houston, Tcnc"'• 77023
,...
Cl 4. 2119 Tangloy HoUSion, Tllltas, 7700S
WQOJ>liORJ!:ST NATIONAL BANK
II)
•
!JJ
0
Any and· 6:u::~ds Ill WoodforeatNatlonal Bank aocounu, Ill ofwhlQb 11n1
..•::``. :::~:. .
presumed to 1:011tain cammunltr,:tut~df~l!'i/ar. filllds bclollgina to the Es!ate, (l) in the n11m0 of
.!;.::· /;~.'·:~A>. ·'.::=.=:·...
.I Kenneth McAfee or Janet F. MoAfoi:.rifiiivlduaJ,bi( {U) K01111ctb McAfee BDd 1anet F. McAfee
~ .·.-.;- .·. ~:``v .
.~ ~;:.~::;;:.
Ill jointly; (ill) whloh names one or both ofthem'ull. s!gru11ary;.(iv) v.:hloh conlalns f\mds in the we,
I .:·: .~:... .·::.':``- .~H~i.~.r:-
c:ustod)l, control, for the bene.ftt, or on behalf of Ketiil~ McAfee andlor Janet F. McAfee,
.. . .. ``~ .::::.
lndlvid\lOily or jointly; and (v). 1111dcr any address related to ''~jJi~ o~.tj~rid~ as II:;JltOVioue
·:.;:)~/f ````:.::::..:;:~:: ..·.·=·;~·.
residBDco, relative, repr*ntatlve, or attorney's addreas, or company which clld ``~:on.,``~-f .,,
either Kenneth MllAfec or JanctP. MoAtie or whleh ~owned In whole or in put·;;~QrJih :f:~: .,i" i
····!>.·!;,OJ ::~?i· !{/t . .:~:e·:r·::~::::
of them. Th~ addres3c.s include, but are not llnllted to, 1bo following: ,;:~[:';' ·~t .,;``:
//
a. PO Box 66352, Holl!txln TIIXU, m66 ..:}~
b. PO Box 460786 HoUltOn, Texa3, 77056
c. 6650 Fairfield S~t Holl'ton, TCIXas, 77023
d. 2119 Tangloy HoWJton, Texas, 77005
hrJG
Con fidential information m ay have been r edacted fr om the document in complia nce with the P ublic Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Sterling G. & nechallll
Of/01/ZOLL no '' n nx. 7132ztllU Lav Otfico lil)005/0LL,
06/0712011 10:58 Mitchell &Duff Attorneys at La11 P.OOS/011
...11)
BANK OF AMERI~,:.·~·t.' .
Ci
(' •
.;
0.
4. Ar.y and all tund.s 111 Bank of ~:~;x: accounts, all of whic:h an:
C() ·:;·;:··· ...·.-.·:~/~ ..
.i;::· ;:(:,;
0 prwwn~ to contain community funds and/or fundi ``!IJinll !547049..{)23
b. tfun~to;23 ·:v •!~·:'.i\ .-'
6. /Uly and .iiii:`` In BBVA Compa.n accounts, Including Laredo National
·:.·< .o:·.:,.
Bank. aU of which tu't: pr~cq,l!l,Col,!;in collUDunlty fuad.s alldlorflmds belonging to the Bslatc,
-:+·.·:::~:··:·;·
(I) In the name ofKe.nneth MciAti:il.o~ )~F. Mc.Afte, Individually; (ii)Karmoth MeMo cmd 1enet I:
AJr«IT.,.poni)'III)IIIICIIU .''\ :';:'>:/·:,;:.~:·:;; 4 of II
i·
I
Confidential inform ation may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
'''''""'''/.
~'''' \ OF lf4l'//.
.$'``· •••••••••• '(-?~
Stan Stanart, County Clerk ~;...... .··
;::.~.·/;..:;.-.~..:
.:-~:
·..
·.``
~
Harris County, Texas ::.:::;,:``9.:.
-o· ...... _
- .·.
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,. \J.)_ •
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.....
~
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Starting G. Senechal Ill
_Q Deputy
``··.
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.··``
v~···········``.Jt.``
..,,,,,,,,,~
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,,,,,,,,,~
o~/0812011 no 1121 ru 1lliUllll wv otUco li)005/0il
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06/07/2011 10:58 Hltchell 1 Duff Attorneys at Law P.OOB/011
~...
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C1
Ci F. McAf~jointly; (iii) which name• one or both oftham as a algnatory; (iv) whiQh Qonlains funds in
c.
the~. c:w~tody, ooncrol, forth~ beoofit, or on behalf ofKGIIDCih MeA!= and!or Janet F. MeA!~,
(J.l . 0\ .
Cl individually or jolnUy; and (v) under aey ad.dreu related to either of the``~, ruch as a p``l!,S :,;;',:::.
busin~,f``~¥:~:{:g:,
l.fl
t··· ruldence, relative, representative, or anomey's addreaa, or company which did
If\ either KenncthMoAfee or Janel F. McACoo or wbi!Jb was owned in wh~:~le or In Jl¢b)i~lthcr orbOih
,..
(I of them. Tho addtuses ln.cl\lde, but ato not Um!ted to, the followtns: ::::;.ii:::·:: j=;;,;·> :'t'
~·I
('('
a. PO Box 663~21 HoUJton Texas, 77266
(:'
,.. b. PO Box 460786 Houston. Texu,:77056
C1 ;•::/'
c. 66SO Flllrfiold StreCI Houstoni'T~!_}7023
~ d. 2119 Tangley Houatoll;r ;Il&`` 7700S,,,i'
',
:·: .. . ·.··
· :....
I.{J
.~
·I 7. Any and all fUnds·' 11\:Wo;J~.;Farg!l
'·'·:;>" ·• .·:...
``. 'tM. accounts, Ill of which are
Ill presumed to contain· commwlit)' funds.~!lt'or fimk~lleiooglng 10 the EaiAtc, (i) In the JWI\O of
'I .:.l;:;~yt... ·<:>·,·,. .
~th McAfee or Janet F. M``OC;''liiili,Vii!ually; (i!) KC!IIIcth McAfee and Janel P. McAfee
·r-."' jointly; (iii) whi~h niUilOJ o``,``;~dt)(lh~ ~a slgualllry; (lv) wblch eontaln31\mds In lh~ care,
custody, control, for the benefit, or ~:~n behalf of Ke!IIIOth Mc.Afeo and/or Ianot F. McAfee,
individually o~..j~Uy; and (v) under any addrua ~latccl to either of them, BI10h as a pJC'iioua
mldonco, ~j~,·~1~01rt4tho, orattl)Juey's addren, orcom,l)toey which did bu5ineu on behalfof
. ·.;,
e!th``~iili~:
..,,·
¥~:or Janet F. McAfee or which wu owned In whole or In part by eitheror both
1• :
'of.;lh~'rJJc.~es \naludc, but II%C not limited to, tho following:
:``;:.r:j.:;-;;:'i:..;·:..:.. ..·
::':.,·
.:. ··
a. PO Box 66352, Houston Texa9, 77266
b. PO Box 460786 Houston, Toxas, 77056
c. ~650 Fairfiold S~et Houston, Texas, 17023
lotiO
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
OHOB/2011 WilD 1121 PAX 7l3U431ll Lov Office ~0071011
0610712011 10:58 Hltchel &DUff Attorneys at Law G'A.Wll13415517 P.0071011
,.,.
V.)
C)
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d. 21 I9 Tllllg)ey Houston, Texas, 77005
Cl.
c; CITJZENS FINANCIAL GROpp. !NC.
C)
ll1 8.
t"'
Airy and aU fuod!llu Citi= Financial Group, Inc. 110001111tJ, all ofwhioh arc
lii presumed to contain COilllllunlty .funds arliJ/or .funds belong!Da to tho 'Bstete, (l) in tho namo of
KCD!lcth MaAf~ or Jlllll:l F. Mt:Afc11, Individually; (il) Kenneth McAfee and Jma1 F. MoAfee
joilltlyi (ili) whiQb nmnca ono or both ofthem ualisnatol')'i (iv) whioh contain31lulda in the care,
CUS10dy, control, for tho bcnef\1, or on bobalf' of Kenneth MeAfoe and/or Janet F. McAfee,
Individually or joilllly; and (v) UDder 110)1 addrcas related to either of IMm, such as a previous
residence, telativc, rcpteaontative, or attorney's addrcu, oroompa!IYwhlch did bualness 011 babalfof
;/ .eM~:x~oth:MC4(~.qr J~l!'t`` MoA!eeorwhlcJI wasownod ill wholeorinpartbyC!ltl!erorboth
:'ktb,. ~-~: ~dr~cs'!ncl~1:``u\~;``unJ~'~, r-!no:s:
~- PO Bo'x'66~S2·; H~'T~, 1:7266
: . .:- ·~. ,•,
b. PO Box 460786 Howton, Texu, 710S6
c. 66SO Palrllold Stmt Houaton, Texu, 77023
d. 2119 T1111gloy Houston, Tow, 77005
PEBS!JINGLLC
9. Arly and a111\ulds In l'cnhlni, LLC acoolll11$, all ofwbiol! aro pn:&Umod to
cont&ln community fun~ and/or fun~ ~ltnlgins to tho Estate, (1) Ill. tbo namo ofKcnneth MoAfee
,,
or J1111et F. McAfee, Individually; (il) Kenneth MI:Afee 1111d J~tmt F. McAfee joltltly; (Ill) whlcb I
namor one: or both ofthem es a.~ign~!OQ'i (iv) whicb oontAilu funds In the care, cuatody, control, for I
the banafit, or on behalfofKeiiDOih McAfee and/or Janet F. Mc:Afee, Individually orjointly; and (v) I
~·
6 ofiG
_______
··---- ···-··-·······-··· ....
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Ster11ng G. Senechal Ill
~, • 06/08/1011 IIID I: ll 111~081011
r·
FAX 7132163111 Ltv Office
08107/2011 1 .9,i.!i:l!.~ttnell &Duff Attorneys at Law O'A.W813415517 P.OOS/011
· ·:.:- ..::·.·
0')
...
0
(.)
Wldcr·~·~d~J`` to Bither ofthem, such as aprevloua recideru:e, JO!atlvo, representative, or
c.
m 1\ttamey•;:``~:o;.:~mpany whioh dld buslncw on be~alfofeither .Kcm!cth Mc:Afeo or 11111Ct F.
C)
;r1
•.
McAfee or ``~··.:w ~ in wholo or in part by oitller or both of them. The ad~ Include,
~·
but aro notlhn;:~{i~;·;~Ud~s:
Jl ~;: ~d Box 66352, Holll10a Texas, 77266
(I
C'l :~(: ~gp:``~!~.60786 Houa1011, Toxu, 170~6
co ·~·c. ``~0 P``-d Street Houston, Texas. 77023
Cl
~·
'{."j·
....
t'· 11. ~119 Twi.li>fijo``~tan, TaliS, 7700S
·.;``/``}/': ·. :·,:-:
·.;:·. .:::GI~ 4 co, INC.
tfl •:;::;::-· ·.;.:.~
~ 10. Art.y a!ld alli\JI~ln Onunat& Co., [IIC, accounts,lncludl!lg aey Or\latal &
II)
0 Co., !no, aubsldlarios or atii&tcs, ln~lfina but ~'i:bltod to tho foUowlng, aU of which arc
I
;.j pre8\ln\ed to colltain community funds an;~:``````~g to the &lata:
·:;::·
1/)
a, 989·03491
k . b. 9U-oSfiOO
.• ·...t·.;;::-
···;::i}./~'·
11. Ally llld all fundt In Gruatal & ~!i}m:. aceoun~,, Including any Orunlal &
·:·:·:.
·:.:·
Co., Inc. subsidiaries or af1ili11tcs, all ofwhkb 11n1 preruuied to conlllin .:oliUilunlty funds and/or
funds bo!onging to the E,llrte, (i) in tho munc o!Kcllllclh MoAfcc or Ianc:t F. Mo.Aft.j), l!ldlv\duelly;
(li) Kenneth McAfee 81111 Janet F. MaAft.j) jointly; (ill) which nll!;!liji'
'.'>:··
't``:``~th
.:···.·
of them 11 a
!lgnatory; (lv) which contains fuads In the care, custody, control, ``fJIIc ``~J`` on behalf ~f
!
Kc:nnGth McAfee and/or JDnet F. McAfee, individulllyorjointly: and (v).~.· :a;;;~y
·.:
~related
;.;.·...
I
''·-;; ., . ,:; ,j' ~' ..·. "
to olthet of~. such aa a previous residence, rellltlve, repreaen111tlve, ot-'it!Oriict.t.,:¢~5$, or
compaey whlob did busincw on behalf ofellhetKt:Moth MoAfco or 1anot P. M`````` was
l,.
AP'CI4 T••Pm'7 lljv..tlu T oliO ····:;:;,,-;>:.- '
I.
I
I
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
06/01/lHl IIBD J1 U FU HlZlflLll Lav Oft ice ~OOJ/011
06/0712011 f~81~15S17 P.009/011
owned in who!~ orln~'"''at\!C!T··:::~;;,::..
·:::.. ;:::.:
~L' :PO.Bo'N6352,
.:;o:::·:::·:·
Houston Texu, 77266 .
,..
Cl
~J
o:l
Cl
,...
Cl 12.
belonging to the Estate, (I) In 11\C) name ot:~:z.ioAfee ot Janet F. MoAfee, Individually; (!i)
;;/''' '{ t
Kenneth Mc.Afoe and J``not F. McA!oo ')~j~tly;. (lli)'Which o11111e lhOil'l as a aignatmy; ("IV) which
contains funds Intbc care, custody, oontrol,;:(ortho.~f!t, or on behalf ofK.ennelh MoAfoo and/or
Janet F. MoAfeo,lndlvidually orjollltly; J:(~)'~jy addrcsuoiAtcd to eltbetofthom, suob u
a ~vlous res!den~, relative, representative, orilttcmif.l(Sddre!s, or company which did buslness
'\::.:·r~::~;}· ..,
on behalfofcither Kenne11\McAt'te ot Janet F-l4~-~ includlng.butootlimited to the followins:
.·::.·•:.``:!::{::~!·:;\:~:~:
a. PO Box 66352, Ho~j).nn Texas, 77266
·:=:::
b. PO Box 460786 Houston, To:o~,':.
which coutain:
OJ
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
06/01/ZQLl IIllO 9: Zl PAX lllZH]lll l.av Of he• Q)OlO/OU
0810712011 1O:S91itcnea & DUff Attorneys it Law (J'AX)2813415517 P.OI0/011
(\!
C,i
(I Woodf'oreAtNBllonal Bank, Bllllk ofAmerica, N.A., BBVA Compass
a.
0:)
:aenk, Wells 'Pargo Bank, N.A., Cltizons Flnanoial Group, Ino.,
(I
l'crlhlns lLC, and GNtllal & Co., Inc.; and/or
if I
{U) Any IUld all addition&! fund1 aod BSSetB w.hich - presumed to
.... contain commlllllty fund' and/or fwldiJ belonsm1 to the &laiC•
IT IS TBERUORE ORDERED, ADJUDGED AND DECREED that any Mtey or
lcdividual,lnoludlng but not limited to Tho GMS Otoup, LLC, Woodforo!tNatlon.al Bank, Balik of
.....
Cl America, N.A., BBVA Colllp118& Back, Wells Fargo Blllllc, N.A., CitJZOIIII Financial Group, lDo.,
PC18hlng UC, 1111d Clrutcal & Co., Icc., which contains, controls, or posseases funds preswued to
belong to the community and/or Bstate, is ordered by the Co1Ut to tffccl\lale tho .``IJil'''~f$18' i !' ·'::}:
, r :- ·· · ·: ·.:: .. ~ -:·
. ,or. any o~ccra,
Tc:mpol'lll')' II\Junetlon ehould KonnothMcAfoe, ..
\iaents,
.
servant!, ~plo~=~aUJ
. . ,. ·. • .;:: .
.,. ·=.~- • .. ·i· ·. ~·-· '•i'.· ';:~. ·:!:;,.,.;•;- . . ..
ar.rvants, successon, as.&l8nSi:tiljiresclit&tlvcs, ana/or •c:f.ia.ciibgO)I hl5 bdlalf, attempt to ace=
.••. . . ::~::-::;1.... ~-.:~ -:.. \:i: :r. ~:_\.: :· ~:f:i'· .. ';;l; ·····.··· ···
or ob1,lin ilc:C~···../.
``: coiilinunl~ 1\lnds and/or funds that belOJJg to 1ho ~tate.
IT IS 'X'REREFORE O:RDEREJ>, ADJUDGED AND DECREED chat lhll T~:mporary
uyunctlon Ord11r Ia etrectivo immediately and shall cominueill force and dfcct until1ho Courtmaku
11. dctcrmlnAt!on ofwhatproporty belongs to the Eateto or tho Court rcnderla~U acd fhlalJudiPllCDt
b In tho pondlng wronlli\ll death .suit woclated with this matter, which over b later, or by t\u1hu
ordu of !hill Court. This on!er shall bo binding on Kenneth MoAfcc, or any officers, employees,
agents, !ervanls, su=son, assil!lla1 representatives, attomeys acthlg on his behalf, and on those
ponons In aetive concert or participation with hlm. Tho bond posted by the Administratrix Is
rcqulred to remain posted.
JallO
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
.ft,-<4/
Sterling
,_Q
G. Senechal Ill
Deputy
06/08/2011 IIIID ' ' 22 UX 7132243111 Lav Office !ilOll/011
0610712011 10:59 lftclleH & Duff Attorneys at L!W P.0111011
r·J
~J
C)
Cl 2Jll
Ci. SIGNBDan``r ```` ra.
~4-···
C(j
Cl
til
,•'..
, !_ ••
PilESiO!N
713.524.2225- Tolcphona · •8' '• '.'!':•...
713.524.5~70. Pao.~lmll ··•.•.!
Anomoy for Hoin f ct Foltyn McAt'oo
IUiCORDER'8 III!MCIWIDIIII:
N.lhlllmo of ~nf•Uon, "ln-.nt-
lolnllo be tn.dequalt for lhl bul plla!Dgnplllo
nprod...UOO bocauot ollr.glbl!ty, ollt>or! or
pholo copy, dlocolorod popar, tla. All blocialllguan!lenahlp.oom
C) Attorney. for Mr. Cherfea storer
CERTIFICATE OF 8ERVTCI!
. I hereby certify that a true and oo~ copy cit the foregoing haa been
fOIWIIrdlld
to ~II partlae and/or cciun.,l or reOOid through our electronlo eervjco provider, oerttned
mall, return reoelpt req~lld· l!nd/0r .faceimile on !hie 6?6? ~ day of DeOIIllber,
2014. . .. .· ..
Ealhe(Ande~on •
oo: Matthew E. Upman
Fauat Oppenheim LLP
468 Madlton Avenue VI• Eltclrpn!c hrvlct Proyld•r &
New Yo111, New Yoi1110022 fllOflml!t 212-f71.f41Q
Dean M. Blumroeen, Eeq.
~615 Southwett FI'88WIIy, SuHe 860 Yll Ef!ctron!c 8wry!ptt Provklar A
Houa1on Texaa 77027 Ftctlm!lelfH2Hm!
Woodfonnt National Bank,
through their registered Bgent
Jamee D. Orelbelbla
26231 Grogan'• Mill Road, Sui111 100
The Woodlanda, Texaa 77380 Yl• CMBRR 9fN7tO,l. qbl~f!(I"·Uet l.Z
..,.. ..
. . . .J
_
Confiden tial information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
o/~_Jd_ Q Deputy
Sterling G Senechal lit
Tab6
Response to Charles Storer's
Motion to Quash Writs of
Garnishment
FILED
1nt2015 2:19:49 PM
Stan Stanart
County Cieri<
Harris County
NO. 396935-401 PROBATE COURT 1
ROSEMARY FOLTYN, Individually§ IN THE PROBATE COURT
AND JAKE FOLTYN, Individually§ ONE
O:l Plaintiffs §
'\t §
m
C) §
§
,.. §
(,) § OF
L'J §
m
C)
vs. §
§
THE GMS GROUP, L.L.C. AND §
WOODFOREST NATIONAL §
BANK § HARJUSCOUNTY,TEXAS
Defendants
RESPONSE TO CHARLES STORER'S MOTION TO QUASH
WRITS OF GARNISHMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Rosemary and Jake Foltyn {hereinafter referred to as
"Garnishors") and files this Response to Charles Storer's Motion to Quash
Writs of Garnishment and, in support hereof, Gamishors would show the
Court the following:
I.
Response to Motion to Quash Writs of
Garnishment Page 1
Confidential infor mation may have been redacted from the document in compliance with the Public Infor mation Act.
A Cer tified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, T exas
A -<41 o
Sterling G. Senechal Ill
Deputy
1. Plaintiffs/Garnishors are Rosemary and Jake Foltyn are
Cl underlying judgment creditors to the wrongful death case in this cause
n.
o:l number.
li:'
o:l 2. Defendant/Garnishee, The GMS Group, L.L.C., is a limited
Ci
Ill liability company doing business in Texas and may be served by serving its
registered agent, via certified mail, return receipt requested, Corporation
Service Company, D/B/A CSC -Lawyers Inco, 211 E. 71h Street, Suite 620,
Austin, Texas 78701.
3. Defendant/Garnishee, Woodforest National Bank is a privately
held bank doing business in Texas and may be served by personally serving
its registered agent, James D. Dreibelbis, 25231 Grogan's Mill Road, Suite
100, The Woodlands, Teas 77380.
4. On or about March 21,2014, this Court, in case number 396,935-
401 styled Rosemary Foltyn, Individually and as Independent Administratrix
ofthe Estate ofJanet Foltyn McAfee, Deceased; and Jake Foltyn, Individually
v. Kenneth Cooper McAfee entered a Judgment against Defendant, Kenneth
Cooper McAfee in the amount of $2,000,000.00, plus pre and post judgment
interest, plus costs of Court ("Judgment"). A true and correct copy of the
Response to Motion to Quash Writs of
Garnishment Page 2
Confidential information may ha ve been redacted from the document in complia nce with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Ha rris County, T exas
A-<~d
Sterling G. Senechal Ill
a Deputy
-------------- . . --
C) Judgment is attached to the Application for Garnishment as Exhibit "A" and
(!)
C)
0 incorporated herein by reference for all purposes. This Judgment is just, due,
0.
unpaid, and remains unsatisfied.
II. LACK OF STANDING
5. Charles Storer is the person who filed the Motion to Quash Writs
of Garnishment. Mr. Storer is not a party to the underlying case, nor is he a
party to the garnishment proceedings. He has not filed any pleading seeking
C)
to intervene in this matter and thus, is not a party to these proceedings. Thus,
Mr. Storer has no standing to assert anything in this case. The Motion to Quash
should be denied on this basis alone.
III. MOTION TO ABATE
6. After a hearing, this court signed an Order on June 26, 2014,
compelling Kenneth McAfee to fully answer plaintiff's post judgment
interrogatories and produce all responsive documents that are responsive to
plaintiffs post-judgment request for production. Subsequently, Mr.
McAfee's attorneys filed motions to withdraw and both did in fact withdraw.
At Mr. Bennett's hearing on his Motion to Withdraw he represented to the
court that Mr. McAfee had no assets to satisfy the underlying judgment.
Response to Motion to Quash Writs of
Garnishment Page 3
Confidential inform ation may have been redacted from the document in complia nce with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
~44_ . G
Sterling G. Senechal Ill
Deputy
Further, at no time did Mr. McAfee answer the post-judgment interrogatories
i"l
i.l
Cl or produce one single document pursuant to the Court's Order
Cl.
7. Thus, Mr. McAfee is picking and choosing what court
proceedings he will decide to participate in. Mr. McAfee's attorneys withdrew
1[1 and never provided the post-judgment discovery they were Ordered to
t)
(\I produce. In an effort to circumvent the legal process, Mr. McAfee seeks to
O:i
Ci
avoid the court's June 26, 2014, Order and proceed directly to only
proceedings he wishes to partake, such as a Motion to Quash.
8. Had Mr. McAfee responded to the post-judgment discovery
Ordered by this Court, Plaintiffs would be in a much better position regarding
the characterization of Mr. McAfee's assets. This court vigorously protected
Mr. McAfee's Fifth Amendment right during the entire trial court proceeding.
While Mr. McAfee has and was granted all protections he was entitled, he is
not above the law, like any other judgment debtor. He is required to abide by
this Court's Orders as they pertain to the judgment entered against him.
9. Plaintiffs. request this Court abate any ruling on the Motion to
Quash the Writs of Garnishment until Mr. McAfee has complied with this
Court's June 26, 2014, Order compelling him to fully respond to the post-
judgment discovery.
Response to Motion to Quash Writs of
Garnishment Page4
Confidential infor mation may have been redacted from the document in compliance wit h the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
_,1£;--OA. r~r 6f' a,... order reletJ.st~ k
f/t 55H004628 for a total of $8,355.54 tt is further,
1
ORDERED, ADJUDGED AND DECREED that Garnishee, The GMS Group, L.L.C.
shall immediately send $8,355.54 payable to Deam M. Blumrosen, Attorney, at 4
Southwest Freeway, Suite 850, Houston, Texas 77027.1t is further,
OROISREO, ADJUDGED AND DEGREISQ tl:lat tre Agreed Order for Temporary
Injunctions in Cause No. 396,935; In the Estate of Janet Foltyn McAfee, Deceased,
dated June 8, 201 \, ito dissotyed and all assets aeserieed ttlereiA, aAa iA partis~:~lar, the
GMS a``91:1 At 8RGiR~ iR see and Ute 'Nuudforest eeeel:!Rt eAaiAg it I 404, arEfl"eleased. c..
ORDER
PAGE3
Confide nt ial in formation may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
.11;_-d.d__ . G?
Sterling G Senechal Ill
Deputy
SIGNED this _ ____,2::oL,L7_;it;
__
ANDERSON PFEIFFER, PC
By: Esther Anderson
Wh-~
tn SBN: 00792332
845 FM 517 West, Suite 200
0 Dickinson, Texas 77539
N Office: 281.488.6535
0 Facsimile: 281 .614.5205
~) Email: esther@probateguardianship. com
0 Of Counsel:
Robert Teir, PLLC
fo~+ ``~ W/ ~ ~ Cf ,4
By: Robert Teir
SBN: 00797940
845 FM 517 West, Suite 200
Dickinson, Texas 77539
Office: 832.365.1191
Facsimile: 832.550.2700
Email: rob@teirfaw.com
Attorneys for Charles Storer,
POA for Kenneth Cooper McAfee
Mitchell & Duff, LLC
By: Mary Elizabeth Duff
SBN: 06166880
210 Main Street
Richmond, Texas 77469
Office: 281-341-1718
Office: 281 -341-5517
Attorney for Estate of Rosemary F. McAfee, Deceased
By: Dean M. Blumrosen
SBN: 02517900
4615 Southwest Freeway, Suite 850
Houston, Texas 77027
Office: 713-524-2225
Facsimile: 713-524-5570
Attorney for Plaintiffs/Garnishors, Rosemary and Jake Foltyn
N:IStorer, Cha~es\Onlers\Order Granting Motion to Quash (not agreed).docx
ORDER
PAGE4
Confidential information may have been redacted from the document in complia nce with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
JA.``A
~·A``
f ~Q~Deputy
~rling G. Senechal Ill
Tab 10
Motion to Partially Release
Temporary Injunction
FILED
2110/2015 2:08:22 PM
Stan Stanart
DATA-ENTRY County Cieri<
Harris County
PICK UP THIS DATE PROBATE COURT 1
CAUSE NO. 396,935 -'-i 0\
IN THE ESTATE OF § IN THE PROBATE COURT
§
JANET F. McAFEE, § NUMBERONE
§
DECEASED § HARRIS COUNTY, TEXAS
MOTION TO PARTIALLY RELEASE TEMPORARY INJUNCTION
0 COMES NOW Charles Storer, Power of Attorney for Kenneth McAfee, and files
N
(IJ this is Motion to Release Injunction and would show the Court the following.
All Exhibits referenced are attached and incorporated herein by reference as if
set out in full for all purposes.
BACKGROUND
1. On June 8, 2011, all parties to the above stated cause entered an Agreed Order
for Temporary Injunction. See Exhibit "1."
2. On January 27, 2015, the Court entered an Order Partially Granting Motion to
Quash Writs of Garnishment as to two accounts:
a. Woodforest account ending in 404, in the name of Kenneth Cooper
McAfee exclusively holding social security assets of Kenneth Cooper
McAfee; and
b. GMS account ending in 606, an individual retirement account of Kenneth
McAfee. See Exhibit "2."
The Court further ordered that all other accounts at GMS Group, LLC, holding
assets of Kenneth McAfee be subject to the writs such that Rosemary and Jake
Foltyn recover $6,694.39 in account number 55H056008 and $1,661 .15 in
account number 55H004628 for a total of $8,355.54 from GMS Group, l.l.C.,
MOTION TO PARTIALLY RELEASE INJUNCTION
Page 1 of 4
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A-<~4.. o
Stetitng G: SeneChal Ill
Deputy
(")
N upon receipt of an order releasing the Agreed Order for Temporary Injunction
()
0 which is the subject of this Motion. /d.
n.
1!1 3. Storer asks the Court to enter an. order partially releasing the June 8, 2011
-~
co temporary injunction as to the following three accounts:
0
a. Woodforest account ending in 404, in the name of Kenneth Cooper
U1
McAfee exclusively holding social security assets of Kenneth Cooper
'~
C\l
('~ McAfee, to Kenneth Cooper McAfee;
l'"
Cll
0 b. account number 55H056008 holding $6,694.39 at GMS Group, LLC, to
Rosemary and Jake Foltyn, c/o Dean M. Blumrosen; and
c. account number 55H004628 holding $1,661.15 at GMS Group, LLC, to
Rosemary and Jake Foltyn, c/o Dean M. Blumrosen.
4. All other accounts and assets described in the June 8, 2011 Agreed Order for
Temporary Injunction should remain subject to the temporary injunction.
WHEREFORE PREMISES CONSIDERED, Charles Storer, Power of Attorney for
Kenneth McAfee, prays the Court enters an order granting his Motion to Partially
Release Temporary Injunction and for such other relief, at law or in equity, as he may
be justly entitled.
MOTION TO PARTIALLY RELEASE INJUNCTION
Page 2 of 4
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Harris County, Texas
..,~
.h;
``~'d
J.I. ._. ~·-~
Q~Dieputy
Sterling G. Senechal Ill
'\I
N Respectfully submitted,
(j
0
0.. ANDERSOq;:;;.~Qf!SJ
Ln
By: Esther Anderson
"co SBN: 00792332
0 845 FM 517 West, Suite 200
~/'}
Dickinson, Texas 77539
... Office: 281.488.6535
0 Facsimile: 281.614.5205
N Email: esther@probateguardlanshlp.com
(",,
,.
N
0 Of counsel on the Pleading:
Lsi. 1Woert 'T'eir.
RobertTelr
Robert Telr, PLLC
845 FM 517 West, Suite 200
Dickinson, Texas 77539
Office: 832.365.1191
Facsimile: 832.550.2700
Email: rob@probateguardianship.com
Attorneys for Mr. Charles Storer, Power of
Attorney for Kenneth McAfee
MOTION TO PARTIAlLY RELEASE INJUNCTION
Paga 3 of 4
Confidential inform ation may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
_ _h;u_
sterling G Senechal Ill
Q Deputy
irl
c,; CERTIFICATE OF SERVICE
<::
c I hereby certify that a true and correct copy of the foregoing has been forwarded
1 Q,
i •• to all parties and/or counsel of record through our electronic seryjce provider, certified
!
I
u1
~M
mail, return receipt requested and/or facsimile on this I
D /tv day of February,
i co 2015. ~ Ondij'~
i (;
~
Esther Anderson
;I;
i ,.•.
cc: Mary Elizabeth Duff
j ~'
I l\j 21 0 Main Street VIA ELECTRONIC SERVICE PROVIDER &
l~
Richmond, Texas 77469 FACSIMILE 281-341-5517
Matthew E. Lipman
i () Faust Oppenheim LLP
l 488 Madison Avenue VIA ELECTRONIC SERVICE PROVIDER &
I New York, New York 10022 FACSIMILE 212-371-8410
i
I
Dean M. Blumrosen, Esq.
4615 Southwest Freeway
I Suite 850
Houston Texas 77027
VIA ELECTRONIC SERVICE PROVIDER &
FACSIMILE 713-524-5570
l Woodforest National Bank,
through their registered agent
James D. Dreibelbis
25231 Grogan's Mill Road
Suite100 .J ~ ~g Sl
The Woodlands, Texas 77380 VIA CMRRR q Ll N '1 \Oa W88 150, 1P _
Charles Storer
N:\Siorer, Charles\Pieadlngo, Motions, AppllcaUona\Mollo Release lnjuncllon.doe>e
MOTION TO PARTIALLY RELEASE INJUNCTION
Page 4 or4
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
JAN-27-2015 15:25 From:7133686701 To:92816145205
\
CAUSE NO. 396936-401
INRE § IN THE PROBATE COURT
JANET F. McAFEE, §
Deceased § NUMBER ONE
Ul
§
ro ROSEMARY FOLYN and §
\J JAKE FOLYN §
§
Lf1 v. § OF
("j
§
(
,,
,, THE GMS GROUP, LLC and §
(\J WOODFOREST NATIONAL BANK, § HARRIS COUNTY, TEXAS
Defendants
ORDER PARTIALLY GRANTING MOTION TO QUASH WRITS
OF GARNISHMENT,ANC liiiSIOL'ii JUe INIIYIU~'fi9NS..
On this day came to be considered the Motion to Quash Writs of Garnishment
flied by Charles Storer, Power of Attorney for Kenneth Cooper McAfee. After review
and consideration of said MoUon, the evidence, the responses, and the arguments of
counsel, the Cour1 finds the following:
1. Judgment for damages in the amount of $2,000,000.00 plus pre and post
judgment interest and court costs was entered by this Court on March 21, 2014
in Cause Number 396,935-401; Rosemary Foltyn, Individually and as
Independent Administratirix of the Estate of Janet Foltyn McAfee, Deceased; and
Jake Foltyn, Individually v. Kenneth Cooper McAfee PiaintiffsiGamlshors herein
executed two writs of garnishment directed at The GMS Group, LLC, ("GMS")
and Woodforest National Bank ("Woodforest").
2. The GMS account ending in 606 (SSN xxx-xx-4352) and the Woodforest account
ending In 404, hold assets in the name of or for the benefrt of Kenneth Cooper
McAfee.
3. The GMS account endln In 606 SSN xxx-xx-4352) is an individual retirement
EXHIBIT
I 1
Confide ntial in formation may have been redacted from the document in compliance with the Public Infor mation Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Ha r ris County, Texas
AA.d_ .o
Sterling G senectlallll
Deputy
J~N-27-2015 15:26 From:7133696701 To:92816145205
t... account for the benefit of Kenneth McAfee that qualifies for federal income tax
(\j
()
deferral. Such account holds, exclusively, funds exempt from garnishment under
0
Ct.
Tex. Prop. Code. §42.0021(a). Because such account is exempt from
ll'i
~- garnishment, the writ directed to the GMS as to Kenneth McAfee's account
co
i)
ending in 606 (SSN xxx-xx-4352) should be quashed. All other accounts at GMS
If',
that hold assets of, or are for the benefit of, Kenneth C. McAfee or Kenneth
~··
0
N McAfee remain subject to the writ.
C-.!
``
4. Further, GMS Group, L.L.C., Is Indebted to Kenneth Cooper McAfee ("Judgment
l\1
Q
Debtor'') in the amount of $6,694.39 and account number 55H056008 and
$1,661.15 In account number 55H004828 for a total of $8,355.54.
5. The Woodforest account ending in 404 holds, exclusively, social security benefit
proceeds of Kenneth C. McAfee which benefits are exempt from garnishment
under 42 U.S.C. §407. 42 U.S.C. provides an absolute exemption and there are
no statutory exceptions to same. Because the Woodforest account ending in 404
contains only funds exempted from garnishment, the writ directed at Woodforest
as to Kenneth McAfee's account ending in 404 should be quashed. All other
accounts at Woodforest that hold assets of or for the benefit of Kenneth C.
McAfee or Kenneth McAfee remain subject to the writ. It Is therefore,
ORDERED, ADJUDGED AND DECREED that the writs of garnishment directed at
(I) GMS Group, LLC, for the account number ending with 606 (SSN xxx-xx-4352) in the
name of and belonging to Kenneth McAfee, and {il) Woodforest National Bank for the
account number ending wHh 404 In the name of and belonging to Kenneth C. McAfee
are QUASHED. It is further,
01\DER
PAOU
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A..d.J .Q
Sterflng G. Senechal 111
Deputy
JAN-27-2015 15:26 From:7133686701 TD: 92816145205
(0 ORDERED, ADJUDGED AND DECREED that all other accounts at GMS Group
N
Ci LLC, and Woodforest National Bank that hold assets In the name of Kenneth McAfee or
0
a. for the benefit of Kenneth C. McAfee remain subject to the writs. Speclflcally,
u:
Garnishors, Rosemary and Jake Foltyn shall recover against the GMS Group, LL.C.,
(!l
(.)
the sum of $8,355.54, such sum to be credited to the judgment entered In the wrongful
Lr!
death judgment. It Is further,
ORDREED, ADJUDGED AND DECREED that the payment of such sums as set
('~ forth above shall issue from funds of the judgment debtor, Kenneth Cooper McAfee,
"'
',.J
currently being held by Garnishee, the GMS Group, L.L.C., from the following accounts:
$6,694.39 In account number 55H056006 and $1,661.15 In account number
,1t ~ r~t 6'F tU.. ()rdet rekt1Jrf8 k
55H004628 for a total of $8,355.54 it is further,
1
ORDERED, ADJUDGED AND DECREED that Garnishee, The GMS Group, L.L.C.
shall immediately send $6,355.54 payable to Deam M. Blumrosen, Attorney, at 4
Southwest Freeway, Suite 850, Houston, Texas 77027.1t is further,
OR.DsRE[) 1 ABdl:JDOED ANB BECRE!!C.#lat ~Agreed Order for Temporary
Injunctions In Cause No. 396,935; In the Estate of Janet Foltyn McAfee, Deceased,
dated June 8, 201 ~ Ia dlssol~d and all aisets-de&efibefj thereiAt aRe 11'1 J'BI'tlslllar, the
eMS a~::oo~:~Rl &R9iRII iR GOO ar rd ll re Wwdforest eeeo~:~At eAsing iJ • 404, are released. C.
DIDI•
PAOE3
Confidential infor mation may have been redacted from the document in compliance with t he Public I nfor mation Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
--~
Lt;
~,~4,
~·'4-
`` Ctt~Deputy
Sterling G Senechal Ill
JAN-27-2015 15:26 From:7133686701 To:92816145205
SIGNED this _ __,2~7-14
__
U'\
,.~
l'O
0 ANDERSON PFEIFFER, PC
\li ``
By: Esther Anderson
0 SBN: 00792332
C\J 645 FM 517 West. Suite 200
Dickinson, Texas 77539
,.(I/ Office: 261.488.6535
c~ Facsimile: 261.614.5205
0 Email: estfler@probsteguerdlsnship.com
OfCounsei:
Rober1 Teir, PLLC
fo!uf t.t.-4, V1 ~ ~ 9t4
By: Robert Telr
SBN: 00797940
845 FM 517 West, Suite 200
Dickinson, Texas 77539
Office: 832.365.1191
Facsimile: 832.660.2700
Email: rob@telrlew.com
Attorneys for Charles Storer,
POA lor Kenneth Cooper McAfee
Mitchell & Duff, LLC
By: Mary Elizabeth Duff
SBN: 06166880
210 Main Street
Richmond, Texas 77469
Office: 281-341-1718
Office: 281-341-5617
Attomey for Estate of Rosemary F. McAfee, Deceased
By: Dean M. Blumrosen
SBN: 02617900
4615 Southwest Freeway, Suits 860
Houston, Texas 77027
CHfica: 713-624-2226
Facsimile: 713-524-0570
Attomey for Plalntlffs/Gamishors, Rosemary and Jake Foltyn
N:~torer, Charlet\Ordeft\Order Granllng Molioll to Q\lnh (notagreed).doc><
Confid ential in formation may have been r edacted from the document in com plia nce with the P ublic Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A44 Stertlng G.
e2
Senechal Ill
Deputy
To:92916145205
JAN-27-2015 15:26 From:71336B6701
JUDGE LOYD WRIGHT
Harris County Probate Court No. 1
201 Caroline, 6111 Aoor
Houston, Texas 77002
Phone 713-368-6700 Fax 713-366·7300
lil FROM:
0 Judge Loyd Wright Kimberly Hightower Susie Rowley
(\,)
N
...JWfi(Ann Stile5 Kevin Scott Betty Hazlewood
Pam Speer Cres Machicek Anthi Pavlicek
Toni Williams Renae Brown Don Pylant
PAGE_j_op_s:
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beulnJ onJnn 9, 2011. Thb agreement is ovidonoed by colllllala' •lsnaiiUea bolow.
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hCID
EXHIBIT
I 2
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Harris County, Texas
P.0141024
'"'r:t• 011071201 5
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corrtaln camn:nmltyt\lnda 1.114/or funds bDiouslni to t\s.tatc; ~ th~r~ IIIDU ofKeanelh Mo~c j.
or Janet Jl, MoMea,lnd!vld\Wb'i (II) Kalnlllh M``· MoMoejoii\Uy: (Iii) wlllab
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Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
-~
.ft
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~·'--'J..---.~·
-11 Q ~_Deputy
Sterling G. Senechal Ill
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tha banllfi~ oren behalfotJCesmetk McAfisa md/or JanttP,McA.feo, ll'ldlvlduallyorjoinlly, ami (v) Ir
I
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
./Lt;..Jd . Q
Ster11ng G Senechal Ill
Deputy
0110712015 16:42 P.019/024
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Stan Stanart, County Clerk
Harris County, Texas
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Sterling G Senechal Ill
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Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
``~
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Tab 11
Motion to Partially Release
Temporary Injunction
FILED
3/6/2015 4:35:23 PM
DV Sian Stanart
DATA-ENTRY County Cieri<
Harris Counly
PlCK UP THIS DATE
No.396,935 PROBATE COURT 1
[J
0
... IN THE ESTATE OF § IN THE PROBATE COURT
0 §
0. JANET FOLTYN MCAFEE, § N0.1
§
...0 DECEASED § HARRIS COUNTY, TEXAS
~i
MOTION TO PARTIALLY RELEASE
TEMPORARY INJUNCTION
...U"l
0
(IJ TO THE HONORABLE JUDGE OF SAID COURT:
01
0 NOW COMES Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn
\')
0 McAfee (the "Estate"), and requests this Honorable Court to PARTIALLY RELEASE the
Temporary Injunction for the ground set forth herein.
Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee requests
PARTIAL RELEASE of the Temporary Injunction because the Writ of Garnishment has been
issued as to the accounts set forth below.
Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee requests that
the following accounts be released to Dean M. Blumrosen as the attorney for Rosemary Foltyn
and Jake Foltyn, and Rosemary Foltyn as Administratrix of the Estate of Janet Foltyn McAfee
1. Account number 55H056008 holding approximately $6,694.39, or all funds
remaining in the account after liquidation and account service fees, at GMS Group, LLC; and
2. Account number 55H004628 holding approximately $1,661.15, or all funds
remaining in the account after liquidation and account service fees, at GMS Group, LLC.
Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee further
requests that all other accounts and assets described in the June 8, 2011 Agreed Order for
Temporary Injunction should remain subject to the Temporary Injunction.
Page I of3
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas
---t~-
~ ``~fJ``.VWJ
o:. . .:. . : .illtJJt
;: :_:~_·Deputy
Summer Lea Willette
en WHEREFORE, Plaintiff requests this Honorable Court to PARTIALLY RELEASE the
0
0 Temporary Injunction, and release. the aforementioned accounts to Dean M. Blumrosen as the
l'l..
attorney for Rosemary Foltyn and Jake Foltyn, and Rosemary Foltyn, as Administratrix of the
0
,....
Estate of Janet Foltyn McAfee, and for such other and further relief that may be awarded at law
I[]
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or in equity.
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r.J Respectfully submitted,
en
0
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MaryEI b u
Texas Bar No. 06166880
210 Main Street
FUchmond, Texas 77469
Tel. (281) 341-1718
Fax. (281) 239-7928
Attorney for Rosemary Foltyn, Administratrix
Page 2 of3
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas
----"~
:...___~·rv"---'-~-
V/(_
ilt&_
llt__Deputy
Summer Lea Willette
...0.... CERTIFICATE OF SERVICE
0
I certify that on March k_, 2015 a true and correct copy of the Motion to Partially
0. Release Temporary Injunction was served on all parties.
f.L~lj/:2
0
...
Esther Anderson
... Anderson Pfeiffer, PC
0 845 FM 517 West, Suite 200
N Dickinson, TX 77539
01 Via Fax: (281) 614-5205
0
C"l
0 Dean M. Blumrosen, Esq.
4615 Southwest Freeway, Suite 850
Houston, TX 77027
Via Fax: (713) 524-5570
Page 3 of3
Confidential infor mation may have been redacted from t he document in compliance with the Public Information Act.
A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas
--~
``i~J~&lJ~
V{illtJJi~
· =<>-- Deputy
Summer l ea Willette
... No. 396,935
...
IN'THE ESTATE OF § IN THE PROBATE COURT
0 §
ll. JANET FOLTYN MCAFEE, § N0.1
0 §
DECEASED § HARRIS COUNTY, TEXAS
LI'J
..
IJ"l
0
ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION
N On _ _ _ _ _ _ __, the Court considered the Motion for Partial Release of the
01
0 Temporary Injunction filed by Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn
crl
0
McAfee and the arguments of counsel. After due consideration of the Motion, the Response
thereto, and the arguments of counsel, the Court finds the motion is GRANTED and orders the
PARTIAL RELEASE of the TEMPORARY INJUNCTION to Dean M. Blumrosen as the
attorney for Rosemary Foltyn and Jake Foltyn, as Administratrix of the Estate of Janet Foltyn
McAfee as to the accounts referenced below ONLY:
1. Account number 55H056008 holding approximately $6,694.39, or all funds
remaining in the account after liquidation and account service fees, at OMS Group, LLC; and
2. Account number 55H004628 holding approximately $1,661.15, or all funds
remaining in the account after liquidation and account. service fees, at OMS Group, LLC.
IT IS FURTHER ORDERED that the other accounts and assets described in the June 8,
2011 Agreed Order for Temporary Injunction should remain subject to the Temporary
Injunction.
Signed on: _ _ _ _, 2015.
PRESIDING WDGE
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas
------\~
L...!..!....:..~·~L..:,=._
h; \{(~-~-·Deputy
Summer Lea Willette
---------------------------···
N
Approved as to Form Only By:
0 MITCHELL & DUFF, LLC
Cl.
0
lll
... !iii/!
Attorney for Rosemary Foltyn, Administratrix
210 Main Street
... FUchrnond, Texas77469
0 Tel: (281) 341-1718
N Fax: (281) 239-7928
01 Email: eduff@mitchellandduff.com
0
crJ
0
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas
--~
---"'-~"----
~V/(_i/JrJJt
_ _.Deputy
Summer Lea Willette
Tab 12
March 12, 2015 Transcript
1
1 TRIAL COURT CAUSE NUMBER 396,835-401
2 IN RE: THE ESTATE OF * IN THE PROBATE COURT OF
JANET FOLTYN McAFEE, *
3 *
ROSEMARY FOLTYN and *
4 Jake Foltyn * HARRIS COUNTY, T E X AS
*
5 THE GMS GROUP, LLC and *
WOODFOREST NATIONAL BANK, *
6 Defendants * COURT NUMBER (1) ONE
7
8 MOTION TO PARTIALLY RELEASE FUNDS HEARING
9
10 Came to be heard on this the 12th day of March, 2015, Motion
11 to Partially Release Funds Hearing, in the above-entitled and
12 numbered cause, and all parties appeared in person and/or being
13 represented by Counsel of Record, before the Honorable Ruth Ann
14 Stiles, Associate Judge Presiding.
15
16 VOLUME OF_1_
17
18 0 R I G I NA L
19
20
21
22
23
24
25
2
1 APPEARANCES
2 ATTORNEY FOR CHARLES STORER:
3 Robert Teir
State Bar No. 00797940
4 845 FM 517, Suite 200
Dickinson, Texas 77539
5 Telephone: 831-365-1191
6 ATTORNEY FOR PLAINTIFFS, ROSEMARY FOLTYN AND
JAKE FOLTYN:
7
Dean Blumrosen
8 State Bar No. 02517900
4615 Southwest Freeway, Suite 850
9 Houston, Texas 77027
Telephone: 713-524-2225
10
ATTORNEY FOR THE ESTATE OF
11 ROSEMARY F. McAFEE, DECEASED:
12 Mary Elizabeth Duff
State Bar No. 06166880
13 210 Main St.
Richmond, Texas 77469
14 Telephone: 281-341-1718
15
16
17
18
19
20
21
22
23
24
25
3
1 THE COURT: The McAfee Estate.
2 MR. TEIR: Good afternoon. I should start by
3 explaining that I am not Esther Anderson.
4 THE COURT: I am aware of that. So you are --
5 could you say your name?
6 MR. TEIR: Robert Teir, T-E-I-R.
7 THE COURT: T-E-I-R?
8 MR. TEIR: All right. So, is there opposition
9 to the Motion to Partially Release?
10 MS. DUFF: We have actually two motions. They
11 have one which includes the Wood Forest Bank account plus two
12 other GMS accounts. We have a motion to partially release
13 which only includes the GMS account. There is some dispute on
14 the Wood Forest account. I have talked to Ms. Anderson about
15 it. There are two -- we agree that it was for the most part
16 SSI deposits into the account which the Estate would have no
17 claim against. However, there are two fairly large deposits
18 that no one has given me backup that happened prior to the date
19 of death that I'm trying to find out what the backup is on
20 those and whether or not those were community so that they
21 could be taken out of what was being distributed out of the
22 Wood Forest account. We are asking that our Motion to
23 Partially Release be signed, which just includes the two GMS
24 accounts.
25 THE COURT: So our only point of contention is
4
1 the Wood Forest account?
2 MS. DUFF: Yes, Your Honor.
3 THE COURT: Okay. So would you like to proceed
4 on your motion?
5 MS. DUFF: I don't think they filed an
6 appearance into the probate, which this is under the probate
7 cause number. And which cause number are they filing
8 appearance under?
9 UNIDENTIFIED PERSON: 401, Wrongful death.
10 MS. DUFF: The wrongful death matter. So that's
11 just the trial. Storer as the Power of Attorney, I don't know
12 that he would necessarily have standing in the probate matter
13 at this point in time.
14 THE COURT: Well, in regard to the Injunction,
15 clearly, Mr. McAfee is the person --
16 MS. DUFF: But it's Mr. Storer as the Power of
17 Attorney. That's who they represent.
18 THE COURT: Right. Which is representing -- who
19 represents Mr. McAfee? Is that a point of contention?
20 MS. DUFF: That's a little bit of a point of
21 contention. It has been over these two cases. They have
22 entered an appearance in the wrongful death case but no one has
23 entered an appearance, unless they consider this their entering
24 of an appearance, in the probate estate itself. Mr. McAfee has
25 entered one but Mr. Storer as his Power of Attorney hadn't.
5
1 THE COURT: Okay, so are you contesting that Mr.
2 Store has Mr. McAfee's Power of Attorney?
3 MS. DUFF: I'm just contesting his standing to
4 make an appearance today. I believe Mr. Blumrosen has also
5 contested that in the wrongful death case as well.
6 MR. BLUMROSEN: The wrongful death issues were
7 basically I believe that Ms. Anderson indicates that she is
8 only representing Mr. Storer, she is not entering an appearance
9 on behalf of Mr. McAfee. But the issues in this, Your Honor,
10 are quite simple. Everybody agrees that the two accounts, the
11 GMS accounts are subject to garnishment, that they have been
12 garnished, and all we are waiting on now is the Court to
13 release the Injunction. And it would appear to me that the
14 only person that may have authority to do that would be someone
15 who has been involved in representing the Estate which is Ms.
16 Duff. The other language that is contained in Ms. Duff's Order
17 is language that I have spoken to the GMS attorney, that he
18 said that the only way they would ever release the funds in the
19 GMS accounts is if that language was contained in the Order. I
20 sent that to opposing counsel and indicated as such, and again,
21 even though they don't even contest the fact that those
22 accounts are subject to garnishment, that language is not
23 contained in there. So if the Court signs their motion, the
24 GMS counsel, Mr. Lipman has indicated to me he can't release
25 the funds because, since the market fluctuates, that has a
6
1 specific dollar amount in it as of whatever the date that we
2 last were provided information on those accounts. The language
3 that's proposed in Ms. Duff's Order indicates that amount plus
4 whatever amount is left in the account after liquidation and
5 fees. And for whatever reason, Mr. Lipman, as attorney for
6 GMS, indicated he must have that language in the Order or he
7 would not be able to release the funds.
8 MS. DUFF: So my motion is specific to the GMS
9 accounts.
10 MR. BLUMROSEN: And as I see it, Your Honor, the
11 only contention here is that they are claiming that the Wood
12 Forest account should also be released. All Ms. Duff is saying
13 is she has asked for, and I believe it's been documented, she
14 has asked for backup. We agree if it's Social Security
15 benefits, I have already pulled the garnishment. We are not
16 entitled to garnish that because it had Social Security
17 benefits in it. However, the Estate may or it may not have
18 claims to it, depending on the character of those assets, and
19 all we are simply asking is on behalf of the Estate, since this
20 case has been going for five years anyway, that the Estate be
21 entitled to look at the character and the backup so that Mr.
22 McAfee, who is now a convicted murderer and doesn't get the
23 benefit of money that he shouldn't get, and it seems pretty
24 easy if they would provide us the backup if it was there, and
25 then we would have no problem and release the Wood Forest
7
1 account to them. That's hasn't been done. And as I
2 understand, all she has asked for is some backup, and if they
3 provide it and show that it is Social Security benefits, then
4 according to Ms. Duff, the Estate will walk away from their
5 claims of it because they won't have any. That's really the
6 only issue of this hearing.
7 MR. TEIR: I don't want to interrupt the dueling
8 monologue. Continue.
9 MR. BLUMROSEN: I'm finished.
10 MR. TEIR: Because it seems like they are
11 arguing against what they perceive our position is but didn't
12 want to hear it.
13 THE COURT: Right.
14 MR. TEIR: Your Honor, the issue of the Wood
15 Forest account is res judicata, respectfully, in this Court.
16 This Honorable Court ordered and held that the account is
17 completely one hundred percent exempt from garnishment in its
18 January 27th, 2015 Order. The Court did so because of its
19 inherent finding that every dime in the account is exempt from
20 the reach of the Plaintiffs and is Mr. McAfee's Social Security
21 income. That issue is decided and we say what's good for the
22 goose is good for the gander if we are going to tinker with the
23 Temporary Injunction that was agreed for the sole purpose of
24 counsel getting paid a fee of eight thousand, that's all that's
25 going on here, then allowing Mr. McAfee access to what all
8
1 agreed is his money so he can have an occasional stamp and
2 piece of paper and Amazon book while in prison seems very fair
3 and is the only result, respectfully, consistent with the Order
4 quashing the Writ of Garnishment. The Order held that the
5 Plaintiffs can't get at that account. Therefore, the only
6 party that can is the Defendant, Mr. McAfee. And right now he
7 can only access it through my client, Mr. Store. So we ask
8 respectfully to allow the learned opposing counsel to be paid
9 their approximately eight thousand dollars they have been
10 waiting for from this other account, which we have no objection
11 to. They are correct. But also to release the injunction to
12 the funds that this Court has ruled belongs to Mr. McAfee, and
13 to do both.
14 THE COURT: Okay.
15 MR. TEIR: Nothing further, Your Honor.
16 MS. DUFF: The only thing, Your Honor, the Wood
17 Forest account was held to be exempt from garnishment. The
18 Estate has a TRO covering all the assets and that's what we are
19 here today on, a completely separate claim. I discovered that
20 there is about $35,000 that was deposited, $25,162 was
21 deposited on April 23rd, 2010, and $9,735 was deposited on May
22 4th of 2010. Both prior to death. Those are different than
23 the normal SSI deposits that were coming into the account. My
24 question is, where did those two deposits come from in the
25 amount of $35,000 and was it community property? That's my
9
1 only question. If we can show that it was not community
2 property, that it was separate property for whatever reason,
3 then I understand the rest of that account is SSI, and is not
4 subject to the TRO or to the garnishment. We don't like
5 letting it go but we understand that it has to be let go
6 because of federal law. So my question is on those two
7 deposits.
8 MR. TEIR: I respectfully feel a little bit
9 about hearing by ambush. Ms. Anderson, my colleague, filed our
10 motion. There was no opposition although there was a
11 counter-motion but no pleading offered any objection to our
12 motion for any reason. I simply respectfully am not in a
13 position to discuss the transaction from five years ago because
14 there was no clue that that would be brought up. It is my
15 understanding that similar questions were raised by counsel in
16 the wrongful death charge and an explanation was provided
17 through direct communications that we authorized with Charles
18 Storer.
19 MR. BLUMROSEN: May I respond?
20 THE COURT: Yes.
21 MR. BLUMROSEN: Your Honor, at the hearing on
22 the garnishment, and I did object to their motion and their
23 Order based on the language of it, I would agree with counsel
24 that it has been the decided that that account is not subject
25 to garnishment. That much I agree with. But I think they are
10
1 wanting you to take the Order a little bit further and say not
2 only is it not entitled to garnishment but the Estate has no
3 claims to it. I don't represent the Estate. Ms. Duff does.
4 Ms. Duff has -- we have e-mailed each other several times over
5 the last week that she has been asking counsel for information
6 about these deposits and that's the whole reason that she is
7 inquiring about that on behalf of the Estate. So again, I get
8 back to, this case has been going on for five years, the
9 garnishment is not in dispute about the two GMS accounts. The
10 only thing that's in dispute is the amount that Ms. Duff is
11 indicating to the Court she has questions about which have not
12 been provided to anybody about where that money came from.
13 MS. DUFF: I have asked about the deposits into
14 the account for backup on them and I received the printout of
15 the account. The account still doesn't have the backup on
16 those two dollar figures. Ms. Anderson may have thought that
17 this would have answered my questions but we have been calling
18 for this week also to just try to get an answer as to what
19 those two deposits are. Once we are clarified as to those two
20 deposits, we understand that the TRO will be released as to the
21 Wood Forest Bank.
22 MR. TEIR: In the alternative, if this Court is
23 inclined to allow this Cinderella hour opposition to our
24 motion, which again, I'm not prepared because, although our
25 motion was filed a week ago, this is the first I'm hearing it.
11
1 But if there is a problem with twenty-five thousand, then we
2 submit the Injunction should still be released to the balance
3 of the account and any Temporary Injunction that we don't think
4 should carry over at all, but if it does, it should be limited
5 to the amount of that deposit.
6 THE COURT: Thirty-five thousand, I believe.
7 MS. DUFF: Thirty-five thousand, Your Honor.
8 MR. TEIR: I stand corrected. I didn't mean to
9 misrepresent. Close enough. Public school, Your Honor.
10 THE COURT: Math. That would be my problem. So
11 really, is there any desire for you all to communicate for the
12 next week to try to clarify that $35,000 or there is no desire
13 to do that right now?
14 MR. TEIR: We would be happy to discuss it and
15 provide any information that we know but we don't know very
16 much, Your Honor. The transaction was five years ago. Mr.
17 Store had nothing to do with it and therefore we don't have
18 anything but what Ms. Duff has, the bank records. As far as
19 the source of that -- those funds, we believe that those funds
20 are gone. They were subsequently withdrawn closer to the time
21 of the deposit, and the only thing in the account, as we
22 showed, to get our -- the writ quashed was Social Security
23 deposits. Today every dime in that account is directly
24 attributable to a direct deposit from the United States Social
25 Security Administration. That money was gone long ago.
12
1 MS. DUFF: There were withdrawals out of the
2 account, Your Honor. I do concur with that. But was it that
3 money that was taken out or prior money. Is it first in first
4 out on money? That's where our concern is coming from.
5 THE COURT: Lifo fifo.
6 MR. TEIR: The Courts have dealt with that and
7 there is no appellate decision, and this is nationwide, because
8 we are dealing with a federal statute, that has allowed access
9 to funds and ruled them to be subject to garnishment or any
10 other collateral attack because of commingling from a deposit
11 over three years back, at least I couldn't find any, and I
12 believe I read them all.
13 MS. DUFF: Well, Your Honor, this was
14 immediately prior to her death and the funds were taken out
15 immediately after her death, which was that's where we are
16 saying, is it a community property interest because the funds
17 went in prior and came out almost immediately after. We don't
18 know what the exact funds are that came out.
19 MR. TEIR: What may help is, regardless of which
20 accounting methodology is applied, lifo or fifo, after the
21 withdrawals are made, there is a series of deposits made from
22 only one source, the Social Security Administration. The funds
23 that are on account now wouldn't be there but for the Social
24 Security Administration direct deposits. Not a dollar. So
25 regardless of accounting methodology, whether it's lifo or
13
1 fifo, the deposits from five years are gone. It's almost as if
2 Mr. McAfee opened a new account at that point, because zero
3 went out from after the withdrawals and the only money that
4 came in was from the Social Security Administration. That's
5 why we believe the Injunction should be lifted as to the
6 account as a whole.
7 MR. BLUMROSEN: Your Honor, most Defendants who
8 are post-judgment debtors have to respond to post judgment
9 discovery and provide documentation as to where all their
10 assets are which would include what happened to this money. In
11 this matter, that hasn't happened because he is in jail and
12 really doesn't have any care in the world about what the Court
13 could do to him. He has a ninety-nine year sentence. The
14 Court could hold him in contempt but it's really of no effect
15 to Mr. McAfee.
16 So what they have done is they represent Mr.
17 Store, the Power of Attorney, who they have said clearly, we
18 don't represent Mr. McAfee and we will see what we can do about
19 getting you stuff to help you, which they did finally answer
20 the post-judgment discovery, but there is just no documents.
21 They don't have any filing a Motion to Compel which we have
22 already done and have ordered is of no effect to Mr. McAfee.
23 So I do think when the Court is looking at its discretion in
24 how to handle this matter, we would appreciate airing on the
25 side of the victims of his brutal murder instead of saying,
14
1 well, we don't have any documents and we can't find out where
2 this money came from so let's let Mr. McAfee have it. And what
3 we would ask that if they refuse to and will not provide any
4 benefit or any document supporting these transfers, that the
5 Court use its power when the Estate comes in and says we
6 believe this is community property, we believe the Court would
7 have the inherent authority to look at it and decide that based
8 on the fact of their refusal to produce any documents.
9 MR. TEIR: That argument was considered and
10 completely rejected because it simply has no basis in the
11 unanimous consensus of federal and state courts that admit that
12 even for a defendant who is -- could be described as evil, the
13 Social Security Administration Act from the Roosevelt
14 administration in 1933 has no exceptions. The writ has been
15 quashed. They have to let it go. I understand the resistance
16 but their remedy is to seek a repeal of the Social Security
17 Act. They should go to their congressman. It says you can't
18 get at it for any reason. There have been fraudsters, there
19 have been murderers, there have been kidnappers, and people
20 have litigated the claim that they are a bad person. The
21 purpose of the Social Security Act is to protect widows and
22 children and retirees. This person is in jail. Doesn't need
23 Social Security. The Courts have unanimously without one
24 exception said that doesn't matter, Congress gave us an
25 absolute language. It's protected. End of story. I can't
15
1 defend what Mr. McAfee did to his late wife, of course, but he
2 has equal rights under the law and the Social Security Act has
3 no exceptions, including for their clients.
4 MS. DUFF: Your Honor, I'm not contesting that
5 this money may not be subject to the garnishment, my question
6 is, $35,000 that was in there on her date of death, which we
7 contend to have been community property at that point in time,
8 at least 50 percent. Unless they prove that it was not
9 community property, at least 50 percent of that $35,000,
10 $17,000, I believe, if my math is correct, would have been her
11 community property. That's what we are contesting at this
12 point, not that she is entitled to any of the Social Security
13 benefits but the community property interest in that money.
14 THE COURT: So as to his position that all of
15 the money that's currently in the account is directly
16 attributable to Social Security?
17 MS. DUFF: I don't see that, Your Honor, because
18 there have been withdrawals, deposits, withdrawals, well, just
19 those two deposits, I will give them that, but there are
20 numerous other withdrawals after the date of death, so I don't
21 know if he is taking out Social Security money, taking out
22 what money was taken out? My argument is at that snapshot in
23 time on May 10th of 2010, that $35,000 was still sitting in the
24 bank account and that was community property.
25 THE COURT: Which gives you a claim against that
16
1 community property.
2 MS. DUFF: Yes, Your Honor.
3 THE COURT: But if all the money that's
4 currently in the account is directly attributable to Social
5 Security, money that he might have previously taken wrongfully
6 that was community property, is that -- I guess your position
7 would be that because that money was removed before and there
8 is a claim that --
9 MS. DUFF: That at least fifty percent -- at
10 least her community property interest should have been
11 considered to remain in the bank account.
12 THE COURT: Even though the money that's
13 currently there is -- unless you use a
14 MS. DUFF: Some portion of it is.
15 THE COURT: Okay.
16 MR. TEIR: In summary, Your Honor, I think it's
17 been well hashed by learned counsel and myself, after the
18 withdrawals again, it doesn't -- no one has to take my word
19 for it, they can just add up the deposits, they will see that
20 that's the money that's in there and no one is questioning
21 where one penny, one dime of that money has come from. But if
22 the Court rejects our claim, that the Injunction should be
23 released, there is no reason to deny Mr. McAfee access to most
24 of it because, by counsel's own admission, at most, the
25 community property claim is equal to one-half the approximately
17
1 thirty-five thousand, and the rest, I don't hear anyone saying
2 rests with any other soul on this planet but Charles McAfee,
3 and he should have access to it for the very limited purposes
4 that he is permitted under Texas law to use it such as a
5 commissary account.
6 MS. DUFF: Your Honor, I wish I could argue
7 against him on that but I do agree that anything in there that
8 is SSI is his, I'm arguing about that portion that I consider
9 to be. I wish I could argue different but, unfortunately,
10 federal law decided that murderers have access to their money.
11 THE COURT: Okay, I'm going to look at this and
12 discuss it with Judge Wright.
13 MR. BLUMROSEN: Judge, the only thing I wanted
14 to add, I know I made the point, but if you decide to go with
15 their Order, the one that they proposed
16 THE COURT: I have to use your language or else
17 the money won't come out.
18 MR. BLUMROSEN: Yes, ma'am.
19 MS. DUFF: Yes, we need the money to come out of
20 those two accounts.
21 THE COURT: Got it.
22 MR. TEIR: We are certainly amenable to that,
23 Your Honor.
24 THE COURT: Okay.
25 MR. TEIR: May we be excused, Your Honor?
18
1 THE COURT: You may.
2
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19
1 C E RT I F I CAT E
2 COUNTY OF HARRIS *
STATE OF TEXAS *
3
I, Donald G. Pylant, Official Court Reporter in and for
4 Probate Court No. 1 of Harris County, State of Texas, do hereby
certify that the above and foregoing contains a true and
5 correct transcription of all portions of evidence and other
proceedings requested in writing by counsel for the parties to
6 be included in this volume of the Reporter's Record, in the
above-styled and numbered cause, all of which occurred in open
7 court or in chambers and were reported by me.
I further certify that this Reporter's Record
8 truly and correctly reflects the exhibits, if any, admitted,
tendered in an offer of proof or offered into evidence by the
9 respective parties.
I further certify that the total cost for the
10 preparation of this Reporter's Record is $133.00 and will be
paid by Esther Anderson
11
Given under my hand and seal of office this the 5th day
12 of August , 2015.
13
14
Is/Donald G. Pylant
15 Donald G. Pylant, C.S.R.
Official Court Reporter
16 in and for the County of
Harris and the State of
17 T E X A S.
18 Certification No. 668 Exp. Date: 12-31-2016
Probate Court No. One 201 Caroline Street, 6th fl.
19 Houston, Texas 77002 (713} 368-6692
20
21
22
23
24
25
Tab 13
Order Partially Releasing
Temporary Injunction
DATA EN'I'RY ------ PROBATE COURT 1
PICK UP TIIIS DATB
No. 396,935
IN"THE ESTATE OF § IN THE PROBATE COURT
§
JANET FOLTYN MCAFEE, § N0.1
0 §
~ DECEASED § HARRIS COUNTY, TEXAS
0
...
ill
ORDER PARTIALLY RELEASING TEMPORARY INJUNCfiON
...
fV\.o;.,c.h. I``?Court considered the Motion for Partial Release of the
0
(',! On
co
r Temporary Injunction filed by Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn
(")
0
McAfee and the arguments of counsel. After due consideration of the Motion, the Response
thereto, and the arguments of counsel, the Court finds the motion is GRANTED and orders the
PARTIAL RELEASE of the TEMPORARY INJUNCTION to Dean M. Blumros~n as the
attorney for Rosemary Foltyn and Jake Foltyn, as Administratrix of the Estate of Janet Foltyn
McAfee as to the accounts referenced below ONLY:
I. Account number 55H056008 holding approximately $6,694.39, or all funds
remaining in the account after liquidation and account service fees, at OMS Group, LLC; and
2. Account number 55H004628 holding approximately $1,661.15, or all funds
remaining in the account after liquidation and account service fees, at OMS Group, LLC.
IT IS FURTHER ORDERED that the other accounts and assets described in the June 8,
2011 Agreed Order for Temporary Injunction should remain subject to the Temporary
Confidential information may have b een redacted from the document in complia nce with the Public Information Act.
A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas
---=-
~ ----=-='--I,C--1-
·l~-=---\ti(-
~--=----·Deputy
Summer Lea Willette
I
Approved as to Form Only By:
,..
{)
(l. MITCHELL & DUFF, LLC
li-Jll/-
Attorney for Rosemary Foltyn, Administratrix
210 Main Street
Richmond, Texas 77469
Tel: (281) 341-1718
Fax: (281) 239-7928
Email: eduff@mitchellandduff.com
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas
--~-H--f'tiM~ltF.:!CZ;r-fhi~'Hii8a,H-l'\({Att-l:£!5ff'- - -Deputy
Summer Lea Willette
Tab 14
First Amended Motion for
Reconsideration of March 16,
2015, Order Partially Releasing
Temporary Injunction, First
Amended Motion for Entry of
Order Releasing Social Security
Proceeds from Injunction
And
Motion for Sanctions
- . - ·- - - · - - - - ---- -·-··---· ··· ··
FILED
ANM PROBATE COURT 1 4/30/2015 1:55:07 PM
DATA-ENTRY Sian Slanart
PICK UP THIS DATE County Cieri<
Hams County
CAUSE NO. 396,935
IN THE ESTATE OF § IN THE PROBATE COURT
§
JANET F. McAFEE, § NUMBER 1 OF
§
DECEASED § HARRIS COUNTY, TEXAS
••.•.•••.•..••....••..•...•..•..........•....•..........••..••.......•....•....
CAUSE NO. 396935-401
INRE § IN THE PROBATE COURT
JANET F. McAFEE, §
0 Deceased § NUMBER ONE
11'1 §
() ROSEMARY FOLYN and §
JAKE FOLYN §
§
v. § OF
§
THE GMS GROUP, LLC and §
WOODFOREST NATIONAL BANK, § HARRIS COUNTY, TEXAS
Defendants §
FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 16,2015, ORDER
PARTIALLY RELEASING TEMPORARY INJUNCTION,
FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAL
SECURITY PROCEEDS FROM INJUNCTION
AND
MOTION FOR SANCTIONS
TO THE HONORABLE JUDGE OF SAID COURT:
Comes now Charles Storer, Agent under a Power of Attorney from Kenneth
McAfee (see Exhibit "1"}, who moves the Court to:
a. reconsider its March 16, 2015 Order Partially Releasing Temporary Injunction
(see Exhibit "2") that does not include language permitting Kenneth McAfee
access to funds the Court previously held to be his social security proceeds
on deposit at Woodforest National Bank (see Exhibit "3," Order Partially
Granting Motion to Quash Writs, ~5. And,
FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 18, 2015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION,
FIRST AMEN DEC MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION
AND MOTION FOR SANCTIONS
Page1
Confidential information may have been r edacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, T exas
Deputy
b. to enter an Order Releasing Social Security Proceeds from any injunction that
may be in force.
In support of this Motion for Reconsideration, all Exhibits are attached and
incorporated herein by reference as if set out in full. Charles Storer, Power of Attorney
ul for Kenneth McAfee, hereinafter, "Storer" shows the following:
0 A. PROCEDURAL HISTORY
N
1. The Estate of Janet McAfee was awarded a judgment against Kenneth McAfee in
a wrongful death action under the jurisdiction of this Court. Although assets have
been available to satisfy such judgment and although such assets have been
repeatedly offered to the Estate, the Estate representative and her counsel,
Elizabeth Duff, have refused to take any steps toward accepting the assets and
crediting them against the judgment. Instead, they have made
misrepresentations to the Court in a effort to not let go of their only tie to
McAffee.
2. Ignoring the fact that the account Kenneth McAfee (hereinafter "McAfee") held
with his employer, GMS, was a retirement account, the judgment creditor
(hereinafter "Plaintiffs") sought, and received, a writ of garnishment against the
GMS retirement account, along with two other accounts at GMS. Plaintiffs also
sought a separate writ of garnishment for funds held on deposit at Woodforest
National Bank (Woodforest"), which was also issued and is the subject of this
Motion.
3. To protect the GMS account, which held only retirement benefits exempt from
creditors under the Texas Property Code, and to protect the Woodforest account,
FIRST AMENDED ManON FOR RECONSIDERATION OF MARCH 15, 2D1~. ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION,
FIRST AMENDED MOllOH FOR ENTRY OF ORDER REI.£ASIHG SOCIAL SECURITY PROCEEDS FROM INJUNCTION
AND MOTION FOR SANCllONS
Pago 2
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
.,
~-
~.j which held only social security proceeds exempt from creditors under the federal
0
Ci Social Security Act, Storer moved to quash Plaintiffs' writs only to the extent they
Cl..
ui .reached these two accounts. See Exhibit "4," Motion to Quash Writs of
(\J
u"l Garnishment, which is attached hereto without Exhibits, which Exhibits are a part
•n of this Court's file and are incorporated herein by reference as if set out in full.
".
c; 4. Storer's Motion to Quash Writs set forth the source of funds in both accounts,
\'·J
........ demonstrating their exempt nature and providing the points and authorities to
ltl
() explain how each were, without exception, exempt from the reach of judgment
creditors by operation of federal law. 1
5. The legal authorities and conclusion in Storer's Motion to Quash Writs were
never questioned or objected ·to by Plaintiffs. Indeed, there is no countervailing
authority to be found to the arguments raised in Storer's Motion to Quash Writs.
See In re Franklin, 506 B.R. 765, 769 (Bankr., C.D. Ill. 2014) ("These
proscriptions have been part of the Social Security Act since 1935"). As such,
the Court granted Storer's Motion and entered an Order Partially Granting Motion
to Quash Writs of Garnishment, which quashed both writs only to the extent they
reached the GMS account containing retirement benefits and the Woodforest
account containing social security proceeds. See Exhibit "3." 2 The "injunction"
over each account, however, remained to be addressed.
1 See 42 U.S.C. §407; see also Bennett v. Arl485 U.S. 395, 397, 108 S. Ct. 1204, 1205, 909
L.Ed2d 455 (19BB) (42 U.S.C. §407(a) •unambiguously rules out any attempt to attach Social Security
benefits•).
2
The Court's ruling per the January 27, 2015 Order Partially Granting Motion to Quash Writs of
Garnishment did not reach two other GMS accounts that did not contain exempt funds, which Storer
never sought to protect from garnishment. See Exhibit •3.' To the best of the undersigned's knowledge,
such other accounts have been collected by Plaintiffs.
FIRST 1\MEHDED MOTION FOR RECONSIDERATION OF MAACH 18,2015, ORDER PI\RTII\LLY RELEASING TEMPORARY INJUNCTION,
FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCII\L6ECURrrY PROCEEDS FROM INJUNCTION
1\NO MOTION FOR SANCTIONS
Page 3
Confidential information may have been redacted from the document in compliance with the P ublic Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Ha rris County, Texas
A.-Jd
St,:;.rilng G. Senechal
_a II!
Deputy
..
N
('
0
6. Thereafter, Storer sought a release from the "injunction" of (i) the non-exempt
CL accounts Plaintiffs and/or the Estate wanted, and (ii) the exempt GMS and
Ul Woodforest accounts. See Exhibit "5," Motion to Partially Release Temporary
N
iii
Injunction, without Exhibits, which Exhibits are a part of this Court's file and are
..U"l
()
Incorporated herein by reference as if set out in full. On March 12, 2015, the
Court heard for the first time, arguments against releasing McAfee's federally and
(·~
"
(~ state protected retirement benefits and social security proceeds, yet such
ill
0 arguments had already been determined by the Court on January 27, 2015,
when the Court found that there existed no question but that all deposits into the
Woodforest account since 2010 were direct deposits from the United States
Social Security Administration, and that such deposits represented the entirety of
the Woodforest account. See Exhibit "3." At neither hearing did Plaintiffs offer
any evidence to show that the funds on deposit at Woodforest were anything but
what Storer has always said they are, social security proceeds. Nonetheless, on
March 16, 2015 the Court entered the Order submitted by the Plaintiffs and/or the
Estate, which included language releasing only the non-exempt accounts
Plaintiffs and/or the Estate wanted, and not releasing the social security account
solely owned by McAfee. See Exhibit "2."
7. There is no action or pleading pending before this Court questioning the Court's
January 27, 2015 Order Partially Granting Motion to Quash Writs of Garnishment
that the Woodforest account is, in its entirety, social security proceeds. Similarly,
there is no objection to Storer's Motion to Partially Release Temporary Injunction
such assets from the scope of any continuing injunction.
FIRST ~aiDED MOTION FOR RECONSIDEMTlON OF W.RCH 15.2016, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION,
FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCnON
AND MOTION FOR SANcnONS
Page~
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Deputy
C·~
\'·l B. ARGUMENT
0
c>
t.i. I. THE FUNDS IN THE WOODFOREST ACCOUNT ARE MCAFEE'S AND
ARE BEYOND THE JURISDICTION OF THIS COURT
u.''I
('~ 8. Storer requests the Court reconsider its decision, if a deliberate decision was
til
~· made, to not enter the order he submitted freeing both the GMS accounts subject
ii1 to garnishment for the Estate/Plaintiffs and the Woodforest social security
(.> account of McAfee, not subject to garnishment, because the nature and the
C•J
ownership of the funds on deposit in the Woodforest social security account were
I"'
·'
If! determined with finality via the Court's January 27, 2015 Order Partially Granting
0
Motion to Quash Writs of Garnishment, (Exhibit "3") and as such, the subject of
such Order is now res judicata and the law of the case. Specifically, this Court
lacks subject matter jurisdiction over the Woodforest social security account.
Therefore, the Court must release its "injunction" pertaining to such account.
10. Because the nature and source of the funds on account in the Woodforest social
security account is the law of this case, and because the Estate does not and
cannot have any claim in or against any of such social security proceeds, there Is
no legal basis to continue the "injunction· as same pertains to the Woodforest
social security account.
11. Additionally, because the Woodforest social security account is not an asset of
the Decedent's Estate, the Court does not have jurisdiction over such account.
See Smith v. Lanier, 998 S.W.2d 324, 335 (Tex. App.-Austin 1999, pet. denied)
(because assets "arguably were" husband's separate property, Probate Court
administering late wife's estate "did not have subject-matter jurisdiction over the
disputed property"); see also State v. Traylor, 374 S.W.2d 203, 207 (Tex.1963)
(Smith, J., concurring) (Probate Court lacks jurisdiction over separate property of
widow or widower).
FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 1e, 2015, ORDER PARTIALLY RELEASIND TEMPORARY INJUNCTION,
FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION
AND MOTION FOR SANCTIONS
Pogo 5
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A44_ Sterling G Siriidlallll
Q Deputy
II. IT IS RES JUDICATA TO NOW ARUGUE THAT THE FUNDS IN
WOODFOREST ARE ANYTHING BUT SOCIAL SECURITY PROCEEDS
12. The Court entered an Order Partially Granting [St«;>rer's) Motion to Quash Writs
on January 27, 2015, as to the Woodforest social security account. See Exhibit
.•
,
"3." Storer's Motion to Quash Writs was based on one argument and one
proposition of law-that the funds in the Woodforest account are federal social
security benefits. See Exhibit "4," 'fl's 8-21.
C:
lfl 13. While an opposition to the Motion to Quash Writs was filed, Plaintiffs' and the
0
Estate's counsel did not, and could not, question, refute, or distinguish the
unanimous and clear precedent that social security proceeds are beyond the
reach of creditors. Therefore, the writ of garnishment with regard to the
Woodforest social security account was quashed in its entirety. See Exhibit "3."
Because only one argument was made for quashing such writ, and because the
Court quashed such writ, it is res judicata to now argue anything but that the
funds in the Woodforest account are exempt because they are protected from
creditors under the Social Security Act, which protection attaches to the account
because the funds in it are only social security proceeds.
14. Res judicata prevents anyone from acting or asserting a position contrary to the
holding and implicit finding of this Court in the January 27, 2015 on the Order
Partially Granting Motion to Quash Writs. See Caprock /nv. Corp. v.
Montgomery, 321 S.W.3d 91, 101 (Tex. App.- Eastland 2010) (stating that once
a ruling is made, It Is final, and contrary arguments are prohibited).
FIRST fo.loiENDEO loiOTION FOR RECONSIDEAATION OF MARCH 18, 2015, ORDER PARTI.IollY RELEASING TEMPOAARY INJUNCTION,
FIRST MIENDED loiOTION FOR ENTRY OF ORDER RELEfo.SING SDCI.Iol SECURITY PROCEEDS FROM INJUNCTION
. AND MOTION FOR SANCTIONS
Poge8
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Deputy
rJ
N 15. Res judicata also bars retrial of claims that have been actually litigated and finally
0
c:J
a. adjudicated in the original suit. See Coalition of Cities for Affordable Uti/. Rates v.
U'l Public Uti/. Comm'n, 798 S.W.2d 560, 562-63 (Tex. 1990), cert. den. sub
N
``
nom., Gulf States Utits. Co. v. Coalition of Cities for Affordable Uti(. Rates, 499
~·
Iii U.S. 983, (1991 ). Specifically, the nature of each and every dollar in the
~·
() Woodforest social security account was both, "actually litigated" and "finally
l'J
r•••
C> adjudicated" via this Court's disposition of Storer's Motion to Quash Writs based
~:
~) on the Court's finding that such funds are social security proceeds belonging
solely to McAfee that are absolutely exempt from garnishment. See Exhibit "3,"
~5 .
16. The doctrine of res judicata also bars litigation of all issues connected with a
cause of action or defense that, with the use of diligence, might have been
litigated in the prior dispute. See Gracia v. RC Cola - 7-up Bottling Co., 667
S.W.2d 517, 519 (fex. 1964). If any party had the slightest differing view of the
Woodforest social security account than Storer, they had ample opportunity to
make that argument, and, with diligence, would have done so when the Motion to
Quash Writs was pending In November 2014, December 2014, and January
2015. No party did. The Estate did file an opposition to the Motion to Quash
Writs, but did not question the factual or legal conclusions about the Woodforest
account containing social security proceeds. The period when the Motion to
Quash Writs was pending would have been the timely, relevant, and appropriate
time to question any of the legal or factual assertions made in Storer's Motion to
Quash Writs, and would have been the correct time to bring to the Court's
FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH le, 2015, ORDER PARTIALLY RELEI\SINCl TEMPORARY INJUNCTION,
FIRST AMENDED MOTION FOR ENTRY OF ORDER REI.EI.SINClSOCIAL SECURITY PROCEEDS FROM INJUNCTION
AND MOTION FOR SANCTIONS
Pogo 7
Confidential information may have been redacted from the document in compliance with the Public Infor mation Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
ft,A./_ o
- -ES\Itfe'lfirlftfln\f:lgr-EQ:r--ESeW,ntiieetBI'h*l&ll-1WIIII --- - - -- ·D eputy
Ui
N
0 attention for consideration, any evidence that the Woodforest account held
0
Ct. anything other than social security proceeds. No party did; and it is too late to
U'i make any such argument now. 3
r"J
U'1
If'"' 18. The bottom line is that the March 12, 2015 hearing on Storer's February 10, 2015
..
Ui
(')
Motion to Parliafly Release Temporary Injunction as to the Woodforest account
..
(\)
Cj
was not the time nor the place for an "Impermissible collateral attack" on the prior
January 27, 2015 judgment of the Court. Browning v. Prostok, 165 S.W.3d 336,
v·1
(J 346 (Tex. 2005) (stating that It is impermissible to "attempt to avoid the binding
force of a judgment in a proceeding not Instituted for the purpose of correcting,
modifying, or vacating the judgment, but in order to obtain some specific relief
which the judgment currently stands as a bar against.") U.S. Bank, N.A. v.
Kobemick, 402 S.W.3d 746, 754 (Tex. App.-Houston [1st) 2012); in re
Commitment of Briggs, 350 S.W.3d 362, 366 (Tex. App.-Beaumont 201 1);
Dallas County Tax Collector v. Andolina, 303 S.W.3d 926, 930 (Tex. App.-
201 0); Henderson v. Chambers, 208 S.W.3d 546, 550 (Tex. App.- Austin 2006);
see also id. ("Only a void judgment may be collaterally attacked").
3
No evidence was offered during the adjudication of Storer's Mallon ro Quash Writs of Garnishment that
the funds on deposit at Woodforest are anything but what Charles Storer has maintained they are, and
what the Court has found they are - social security proceeds. The sole questioning of the nature of
these funds was In the latest late arguments of Plalntiffs'/Estate's counsel on March 12, 2015, and even
then, there was no assertion that the funds are anything but social security proceeds. Rather,
Plaintiffs'/Estate's counsel stated only that she 'questions' some of the deposits in the account.
Questioning Is good, but offers this Court no reason to deny Storer's Motion. Additionally, questioning Is
also not testimony and Is not evidence. See Lee v. Stale, 442 S.W.3d 569, 579 (Tex. App.-San Antonio
2014) (stating that arguments of counsel are not evidence, even when counsel Is the honorable AHomey
General); Levy v. Cash, LLC, 2013 WL 6237273, at •1 (Tex. App.-Houston [14th] 2013) ("challenged
statements of .... Counsel were arguments of counsel, not testimony').
FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 18, 2015, OROER PARTV.LlY RELEASING TEMPORARY INJUNCTION,
FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAl SECURrry PROCEEDS FROM INJUNCTION
AND MOTION FOR SANCTIONS
Pago8
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A4dSt•'!rllng G. Senechal
et
m
Deputy
iii. SOCIAL SECURITY PROCEEDS ARE PERSONAL PROPERTY
19. In Richard v. Richard, a Court of Appeals held:
"Social Security benefits are not community property, and a state
court's attempted disposition would conflict with federal law,
~:"'"'
disrupting a 'uniform federal scheme of benefits' by producing
results which would vary 'depending upon the community property
law of various states'".
C 20. /d., 659 S.W.2d 746, 747 (Tex. App.-Tyler 1983). The personal property nature
(\J
,...
of social security benefits is well-settled under Texas law. See id.; see also In re
Marriage of Ford, 435 S.W.3d 347, 350, n.2 (Tex. App.-Texari440 S.W.3d 749, 754 (Tex. App.-San Antonio
2013) ("(T]reatment of social security disability benefits paid during the marriage
as community property would do major damage to clear and substantial federal
interests") (internal quotations omitted); Granger v. Granger, 236 S.W.3d B52
(Tex. App.-Tyler 2007 pet. denied) ("Social security benefits are not subject to
division under community property laws because the language in 42 U.S.C.A.,
section 407 of the Social Security Act manifests a congressional intent to
preempt state law.").
21 . For these additional reasons, the social security proceeds in the Woodforest
social security account are not subject to any claim of Decedent's Estate.
fiRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 18, 2015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION,
FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION
AND MOTION FOR SANCTIONS
Pilge I
Confidentia l info rmation may have been redacted from the document in compliance with the Public Info r mation Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, T exas
Deputy
I'-'
(\i
MOTION FOR SANCTIONS
c··'
C>
C\, 22. There have already been multiple hearings to address issues relating to the
i!'l Woodforest social security accounts and the assets therein. The Court has
r,)
lli already determined to be wholly exempt from creditors under long standing
"
..
~-i federal Jaw. Nonetheless, Rosemary and Jake Foltyn and Rosemary Foltyn, as
CJ Independent Executor of the Estate of Janet F. McAfee, while doing nothing to
N
..~ ...
t". accept assets from Storer on behalf of McAfee, to satisfy the judgment recovered
--
ii'i
0 against McAfee, engage in an endless obstacle course aimed at denying Storer
access to what everyone agrees is McAfee's exempt, separate property. The
Foltyns have turned this tiny bit of remaining litigation into a game of smite,
where, if they cannot get to the account because of federal law, they will do
whatever they can so that no one else gets to it either, including its lawful owner.
23. This spiteful harassment now takes the form of accusations that are never put on
paper (as legal assertions would require references to actual facts and legal
authority). And as the prior hearing showed, the sole, tardy reason offered to
oppose the lifting of the 'injunction' freezing the Woodforest social security
account was that counsel supposes that, maybe, somehow, some unknown
small portion of such account is community property, without giving this Court or
Storer so much as a clue as to how this may be the case.
25. This Court's, Order Partially Granting Motion to Quash Writs held that the
Woodforest account contains exempt social security assets belonging to McAfee.
Counsel's most recent pretended suspicions do not overcome what i.s res
judicata In this case, and offer no reason to put Storer through hearing after
FIRST AMENDED MOTION FOR RECONSIDeRATION OF MARCH 16, 2015, ORDER PARTIALLY RELEASING TEMPORARY INJUHCTIOH,
FIRST AMENDED MOT10N FOR ENTRY OF ORDER RELEASING 50Ci.'.l. SECURtlY PROCEEDS FROM IHJUNCTION
AND MOTION FOR SANCTIONS
Page 10
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A4,J
~Ste~rtili;ln~g~G~s~en~ec~h~al~,;;:r``~----neputy
ro
r'.! hearing based on . unwritten, unspecified, and most certainly unproven
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suspicion(s).
~'i 26. Plaintiffs have not offered one bit of evidence that questions the source and
``
~·I
... nature of the funds on deposit at Woodforest, which subject is now moot. Their
l!l efforts to forever punish McAfee is perhaps understandable, but the use of the
~·
() civil courts to further punish McAfee is ultra vires, a violation of the double
(\J
...
()
jeopardy clause of the United States and Texas Constitution, and totally ignores
\1'1
(.) the very real fact that McAfee has already been judged and is being punished for
his crime every day he remains in the state's maximum security prison. See U.S.
Canst., Amd. V; Texas Canst., Art. I, §14. The Foltyns' secondary punishment,
no matter how gratifying for those for whom no punishment is sufficient, must
stop now, especially in light of the fact that they are relying upon enforcement of
a "temporary Injunction," which everyone knows Is not enforceable, but is,
Instead, being honored by Storer out of respect to the Court.
30. In addition to the endless moving of the goalpost, the Foltyns knowingly filed
improper writs of garnishment and attempted to collect assets they knew to be
exempt under law. Even after the Court heard and adjudicated the issue of
exempt assets, which determination they did not (and could not seriously)
appeal, and even after this issue had been resolved and was res judicata, they
now insist on an oral hearing on Storer's Motion for Reconsideration, without
anything in writing, so they can again hide from Storer what basis they seek he
be denied the relief he requests (see Pearson v. Wichita Falls Boys Club Alumni
Assoc., 633 S.W.2d 684, 686 (Tex. App.- Fort Worth 1982) (Texas litigation is
FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 10, 2015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION,
FIRST AMEN DEC MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION
AND MOTION FOR SANCTIONS
Pogo11
Confidential information m ay have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
J/;4d
Ster11ng G. Senechal Ill
Q Deputy
not "a game of chance and surprise, or 'Blind Man's Bluff"), and to increase
attorney fees.
31. Plaintiffs' attempts to use the processes of this Court to continue their
harassment in the face of the Court's plain and unambiguous final Order should
U1 no longer be tolerated. See, e.g., Bennett v. Reynolds, 2014 WL 4179452, at n.
49 (Tex. App.-Austin 2014) (courts declining to "beat a dead horse").
32. The bottom line is that the issue Is settled and moot, and any further complaints
regarding same are barred by res judicata. Plaintiffs simply have no right to the
social security proceeds; they know this and have admitted this fact on the record
through their counsel.
33. Therefore, for the above stated reasons, the Court should impose appropriate.
and just sanctions against Rosemary and Jake Foltyn, and Rosemary Foltyn, as
Independent Executor of the Estate of Janet F. McAfee, for their groundless and
frivolous pleadings, settings, and acts in violation Texas Civil Practice &
Remedies Code §10.001, 9.012 and Texas Rule of Civil Procedure 13. See
Unifund CCR Partners v. Villa, 299 S.W.3d 92, 96 (Tex. 2009) (sanctions
permissible for seeking to collect from debtor discharged In bankruptcy); Low v.
Henry, 221 S.W.3d 609, 616 (Tex. 2007) (sanctions appropriate for Improper
pleadings filed with the trial court); Gomer v. Davis, 419 S.W.3d 470, 478 (Tex.
App.-Houston [1st] 2013) (sanctions permissible for submission of pleadings
groundless in law and fact).
FIRST AMENDED MOTION FOR RECONSIDEAATION OF JMRCH 16,2015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION,
FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION
AND MOTION FOR SANCTIONS
Page 12
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Jf;A_J ..o.
Stirling G S ~meChal Ill
Deputy
PRAYER
0
Q. WHEREFORE, Charles Storer, Agent under a Power of Attorney from Kenneth
McAfee, prays the Court:
a. reconsiders its Order Partially Releasing Temporary Injunction dated
iii March 16, 2015, releasing from any injunction only the non-exempt GMS
accounts, and not releasing from any injunction Kenneth McAfee's social
security proceeds account at Woodforest National Bank;
Ci
lr';
C) b. enters Charles Starers' proposed Order, attached hereto as Exhibit "6,"
which releases the exempt social security account at Woodforest National
Bank;
c. grants appropriate and just sanctions against Rosemal)' and Jake Foltyn
and Rosemal)' Foltyn, as Independent Executor of the Estate of Janet F.
McAfee, for groundless and egregious efforts to keep Storer from assets
that rightfully belong, under settled law, to Kenneth McAfee; and
d. for such other and further relief at law or In equity to which Storer may be
justly en@ed.
FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH IS, :1015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION,
FIRST AMENDED MOnON FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION
AHD MOnoN FOR SANCnoNS
P-13
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A4dSter1ing G Senechal 111
Q Deputy
Respectfully submitted,
ANDERSON PFEIFFER, PC
``
By: Esther Anderson
SBN: 00792332
By: Robert Telr, of Counsel
U'J SBN: 00797940
845 FM 517 West, Suite 200
Dickinson, Texas 77539-2903
Office: 281.488.6535
Facsimile: 281.614.5205
Email: esther@probateguardianshlp.com
rob@probateguardianship.com
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the following has been forwarded to all
parties and/or counsel of record through our electronic service provider and/or facsimile and/or
certified mall, return receipt requested on this 30th day of April, 2015.
Esther Anderson
cc: Matthew E. Lipman
Faust Oppenheim LLP
488 Madison Avenue VIa Electronic Service Provider &
NewYork, New York 10022 Facsimile 212-371-8410
Dean M. Blumrosen, Esq.
4615 Southwest Freeway, Suite 850 VIa Electronic Service Provider &
Houston Texas 77027 Facsimile 713-524-6570
Mary Elizabeth Duff
210 Main Street VIa Electronic Service Provider &
Richmond, Texas 77469 Facsimile 281-341-6617
Woodforest National Bank,
through their registered agent
James D. Dreibelbis
25231 Grogan's Mill Road, Suite 100
The Woodlands, Texas 77380 VIA CMRRR ~fell'£7102. (J1Jf2 16ft tal ~ S"
N:IS1orar, Charles\Pioadlngs, Motions, AppYcatlonal1s1 amended motion to racanolder & mollan lor sanc:llons.dacx
FIRST AMENDED MOTION FOR RECONSID£RAT10N OF MARCH 15,2015, ORDER PARTIALLY RELEASINQ TEMPORARY INJUNCTION,
FIRST AAIENDED MOTlON FOR EKTRY OF ORDER RELEASINil SOCIAL SECURITY PROCEEDS FROM INJUNC110N
AND M0110N FOR SAHCTlONS
Page 14
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
ft,4-1{ Q
``~enffiin~g~a~s~e~n~a~oo~a~I#IJI~----------Depucy
C\l 20150010298
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01/0B/2015 RP2 ~28.00
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DURABLEPOWEROFATTORNEYFOR
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Pa KENNETH COOPER MCAFEE
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p I KENNETH COOPER MCAFEE revoke all previous powers of attorney given by me.
This is a durable power of attorney given for the management, protection, and conservation of
my property, especially in the event I am unable for any reason to manage, protect, and cons~rve
it! my own property, and to avoid a guardianship as to the management, protectipp; and
"
() conservation of my property. It is my purpose to delegate certain other authority. cifa personal
N nature, such as the authority to make health care decisions in the event I cannot do sp for myself.
C) The authority vested in a Personal Representative under this durable pq~er of attorney is
U"i unlimited in nature, and is based in complete trust. A Personal Representative's authority nnd
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legal capacity will be that of an agent and trustee .
\...
APPOINTMENT OF THE PERSONAL REPRESENTATIVE
I appoint my CHARLES RUSSELL STI -16 -~I i. () S-\ · touad to 1><1 fnodoquoll for the but pholographlc
ro~ducllon buoun of Jlfoglbfllly, carbon or
~J~r-J . --r-.c 77(,)?--3- "/00'2.- photo copy, dlti.Oiorod paprr, tlc.Aff blockovfo,
addillons and chan~·: '111ft prucnt tl lht~mt
the fnltrumtnl w-.s ntod •nd 11cordtd,
Page 4 of4
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Af;_..dd_
Ster11ng G. Senechal Ill
.G Deputy
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Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Deputy
No.396,935
lNTHE ESTATE OF § IN THE PB.OBA'l"E COURT
§
JANET FOLTYN MCAJ.l'EE, § NO.I
§
DECEASED § B..UUUS COUNT'II', TEXAS
O:RDER PARTIALLY RELEASING TEMPORARY INJUNCTION
On MaJ.C.h. I~J'?Court considered the Motion for Partial Release of th=
Temporary Injunction filed by R.osclllaty Foltyn, as Adminisltatrix of the 'Estate of Janet Foltyn
MoAfee and the arguments of counsel. Aftor duo consideration of the Motion, the Response
thereto, and the arguments of counsel, the Court finds the motion is GRANTED and ordem the
PARTIAL RELEASE of the TEMPORARY INJUNCTION to Dean M. Blumroscn as the
attorney for Rosemary Foltyn and Jake Foltyn, as Administratrix of the Estate of Janet Foltyn
McAfee as to the accounts referenced below ONLY:
1. Account nwnber S5H056008 holding approximately $6,694.39, or all funds
remaining in the accowrt after liquidation and account sCI'Vicc fees, at OMS Oroup, LLC; and
2. Account number SSH004628 holding approximately $1,661.15, or all funds
remaining in the account after liquidation and account scrYicc fcc5, at GMS Group, LLC.
IT IS FURTHER ORDERED that the other accounts and a5sets described in the June 8,
2011 Agreed Order for Temporary Injunction should remain subject to the Temporary
Injunction.
Signed on:r1J\w:h /Ca. 2015.
EXHIBIT
I :L
Confidential infor mation may have been r edacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A4dSterilng G Senechal· Ill
o Deputy
JAN-C7-2B15 15:26 From:71336B67B1 To:92816145205
ro
~j
C.:: CAUSE NO, 396935-401
0
C!•.
INRE § IN THE PROBATE COURT
li1 JANET F. McAFEE, §
N
lf'j Deceased § NUMBER ONE
,.. §
ROSEMARY FOLYN and §
JAKEFOLYN §
§
~ § OF
§
THE GMS GROUP, LLC and §
WOODFOREST NATIONAL BANK, § HARRIS COUNTY, TEXAS
Defendants
( ORDER PARTIALLY GRANTING MOTION TO QUASH WRITS
OF GARNISHMENli.~ ~18806'/llle ll~dt1Ue=FIONS.
On this day came to be considered the Motion to Quash Writs of Gamlshmenl
flied by Charles Storer, Power of Attorney for Kenneth Cooper McAfee. After review
and consideration of said Motion, the evidence, the responses, and the arguments of
counsel, the Court finds the following:
1. Judgment for damages in the amount of $2,000,000.00 plus pre and post
judgment Interest and court costs was entered by ~his Court on March 21, 2014
in Cause Number 396,93~401; Rosemary Foftyn, fndlviduaffy end as
Independent Administratirix of the Estate of Janet Foltyn McAfee, Deceased; and
Jake Foltyn, Individually v. Kenneth Cooper McAfee Plalntiffs/Garnlshors herein
executed two writs of garnishment directed at The GMS Group, LLC, r"GMS")
and Woodforest NaUonal Bank ("Woodforest").
2. The GMS acco~nt ending in 606 (SSN xxx-xx-4352) and the Woodforest account
ending In 404, hold assets in the name of or for the benefit of Kenneth Cooper
McAfee.
3. The GMS account ending In 606 (SSN ,-¥13521 is ag jgdjvidual retirement
OIDIR E~tiBrT I
Confidential information m ay have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Harris County, Texas
~.-d.d_ .mQ
Sterling G: Senecnal
Deputy
JAN-27-2215 15:26 From:71336867B1 To:928161'\52B5
c~
~'J
0 account for the benefit of Kenneth McAfee that qualifies for federal income tax
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deferral. Such account holds, exclusively, funds exempt from garnishment under
V'l
r'J Tex. Prop. Code. §42.0021(a). Because such account is exempt from
Ui
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garnishment, the writ directed to the GMS as to Kenneth McAfee's account
-
1ri
0
N
ending in 606 (SSN xxx-xx-4352) should be quashed. All other accounts at GMS
thai hold assets of, or are for the benefit of, Kenneth C. McAfee or Kenneth
e•·
C) McAfee remain subject to the wrll.
ui
C1
4. Further, GMS Group, L.L.C., Is Indebted to Kenneth Cooper McAfee ("Judgment
c· Debto~') in the amount of $6,694.39 and account number 55H056008 and
$1,661.15 In account number 55H004628 for a total of $8,355.54.
5. The Woodforest account ending In 404 holds, exclusively, social security benefrt
pro~eds of Kenneth C. McAfee which benefits are exempt from garnishment
under 42 U.S.C. §407. 42 U.S.C. provides an absolute exemption and there are
no statutory exceptions to same. Because the Woodforest account ending in 404
contains only funds exempted from garnishment, the writ directed at Woodforest
as to Kenneth McAfee's account ending in 404 should be quashed. All other
accounts at Woodforest that hold assets of or for the benefit of Kenneth C.
McAfee or Kenneth McAfee remain subject to the writ. It Is therefore,
ORDERED, ADJUDGED AND DECREED that the writs of garnishment directed at
(I) GMS Group, LLC, for the account number ending with 606 (SSN xxx-xx-4352) In the
name of and belonging to Kenneth McAfee, and (II) Woodforest National Bank for the
account number ending with 404 In the name of and belonging to Kenneth C. McAfee
are QUASHED. It is further,
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
.ft,..d-4_
Stertlng G Senechal Ill
0 Deputy
JAN-27-2015 15:e6 From:71336867B1 To:92B161'15205
0
~
("·
.I
() ORDERED, ADJUDGED AND DECREED that all other accounts at GMS Group
u.
LLC, and Woodforest National Bank that hold assets In the name of Kenneth McAfee or
U'l
N for the benefit of Kenneth C. McAfee remain subject to the writs. Specifically,
,...ul
Garnishors, Rosemary and Jake Foltyn shall recover against the GMS Group, l.L.C.,
ill
,.. the sum of $8,355.54, such sum to be credited to the Judgment entered in the wrongful
e
N
... death judgment. It Is further,
0
U'l ORDREED, ADJUDGED AND DECREED that the payment of such sums as set
()
forth above shall issue from funds of the Judgment debtor, Kenneth Cooper McAfee,
(
currently being helcl by Garnishee, the GMS Group, L.l.C., from the following accounts:
$6,694.39 In account number 55H056008 and $1,661.15 In account number
· 1ft 140" r.f.tt1t "., fb.. ()rriet ~let1Jtft1 k
55H00462B for a total of $6,355.54 It Is further,
1
ORDERED, ADJUDGED AND DECREED that Garnishee, The GMS Group, L.LC.
shall immediately send $6,355.54 payable to Deem M. Blumrosen, Attorney, at 4
Southwest Freeway, Suite 850, Houston, Texas 77027.1t is further,
,··· ORQ6g@, ADdl:JDSED AND DECRI;;fiiD tf:lat tre Agreed Order for Temporary
Injunctions In Cause No. 396,935; In the Estate of Janet Foltyn McAfee, Deceased,
dated June B, 20 11,. Is ..dlssolyffi and all assets Eleserieed tttereiA, aAEI (fT13artlslflat:, lhe
SMS ecce!~At eReiAO iR 696 a11d the lfv'uudforest aeeoemt eAdiAg ill404, are releaseetz
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
flAd___G
Starting G Senechal Ill
Deputy
JAH-e7-eB15 15:26 From:71336B67B1 To:928161'152B5
~IGNED this _ __,2..._7._~--
•..
ANDERSON PFEIFFER, PC
By: Esther Anden;on
``
SBN: 00792332
845 FM 517 Wes~ Suite 200
Dickinson, Texas 77539
Office: 281.488.6535
Facsimile: 281.614.6205
c Email: esther@probeteguerrflenship.com
Of Counsel:
Robert Teir, PUC
fokr+ IM-, WI pun:~ Cf,q.
By: Robert Telr
SBN: 00797940
846 FM 617 West. Suite 200
Dlcldnson, Texas TI539
Office: 832.365.1191
Facsimile: 832.550.2700
Email: rob@telrlew.com
Attorneys for Charles Storer,
POA for Kenneth Cooper McAfee
Mitchell & Duff, LLC
\. __
By: Mary Elizabeth Duff
SBN: 06165880
210 Main Street
Richmond, Texas 77469
Office: 281-341-1718
Office: 261-341-5617
Attorney for Estate of Rosemary F. McAfee, Deceased
By: Dean M. Blumrosen
SBN: 02617900
4615 Southwest Freeway, Suite 860
Houston, Texas77027
Office: 713-524-2225
Facsimile: 713-524-6570
Attorney for PlalnUffs/Garnl&hors, Rosemary and Jake Foltyn
N:\S(orvr, CharleiiOldetJIOiller Oran~ng Mo~o~ to Qvesh (no! asraed),doa.<
OIID!k
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
~44__o
G: Siriecnal
Ster11ng lU
Deputy
(\)
'\t
C)
C)
0.. 622CAUSE NO. 396936-401
INRE § IN THE PROBATE: COURT
JANET F. McAFEE, §
Deceased § NUMBER ONE
§
ROSEMARY FOLYN and §
C) JAKEFOLYN §
N §
v. § OF
§
THE GMS GROUP, LLC and §
WOODFOREST NATIONAL BANK, § HARRIS COUNTY, TEXAS
.( Defendants §
MOTION TO QUASH WRITS OF GARNISHMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Charles Storer, Power of Attorney for Charles McAfee, Defendant
herein·, and holder of the accounts Plaintiffs seeks via the Writs of Garnishment Issued
by this Court, who moves to quash (dissolve) the two Writs of Garnishment Issued post-
judgment In this cause (to Woodforest National Bank and GMS Group), as the Writs
reach accounts andfor assets that are wholly exempt from the reach of judgment
creditors (indeed from the reach of all creditors). In support of this Motion, Mr. Storer,
would show the following: 1
I. INTRODUCTION AND SUMMARY
1. This Court issued two writs of garnishment at the request of Plaf~tlffs. While a
judgment creditor has a right to pursue collection on their judgment, Including via
garnishment upon depository accounts, Texas and federal law sharply limit what
property of a judgment debtor may be taken. Here, both of the accounts are
1
Mr. MtAfee d~lgnated a Power of Attomev because he Is lncartl!rated. I
MOTlON TO QUASH~ OF GARNISIIMENT }
EXHIBIT
I I I
~----------------------------------------------------------------------------------
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Harris County, Texas
Deputy
c-;
``
0
0 entirely and undivldedly, protected from the reach of all creditors. Because these
CL
lf''I accounts may not be taken by any creditor, with any judgment, the two Writs
,,.
N
issued while the Court was unknowing of the exempt status of these accounts,
"'
u, should and must be quashed.
"
Q II. FACTS AND PROCEDURAL HISTORY
'\J 2. Mr. McAfee was convicted of a criminal offense involving the death of the
(~
ul decedent, Janet Foltyn McAfee, and is currently serving his sentence at a Texas
()
c correctional institution. The underlying claim was a wrongful death action against
Mr. McAfee. This Court found for the Plaintiffs In the wrongful death action.
3. Post-judgment, the Plaintiffs sought from this Court, and received, two Writs of
Garnishment. The Application for Writs of Garnishment made no mention of the
exempt status of either account. Rather, the Application simply noted that the
garnishees, both Woodforest and GMS, may be Indebted to the Defendant "by
'
maintaining or holding one or more bank accounts." Application for Writ of
Garnishment, w.
( ..
4. The first Writ of Garnishment reached Mr. McAfee's depository account at
Woodforest National Bank ("Woodforesr). This account, however, is beyond the
reach of all credftors, Including the judgment creditors in this cause, because the
account was opened to receive, received, and Is now holding funds received
pursuant to the federal Social Security Disability Insurance ("SSDI") system. The
account contains no funds other than those received as Social Security benefits.
5. The second Writ of Garnishment reached Mr. McAfee's depository account held
by his former employer, GMS Group, L.L.C. ("GMS"). This account Is also
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
/)``4__Q
~rtlng GO Sened\St m Deputy
'11
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C)
C) beyond the reach of all creditors, including the judgment creditors In this cause,
0.
because the account Is Mr. McAfee's tax-deferred retirement benefit account
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11'•,
d: arising from his employment with GMS.
~·
6. In lieu of an Answer, GMS reported to this Court that It Is holding deposHory
([1
C) accounts belonging to Mr. McAfee. See letter from Matthew F. Lipman, Esq.
(·J
(counsel for GMS Group) to Stan Stanart, County Clerk (Oct. 23, 2014), which is
0
lf'i a part of this Court's file and Is Incorporated herein by reference. See Exhibit
C)
"C." GMS' response Indicates that the account in question is a retirement
( '
account qualified under IRS rules for tax deferment. ld@ Exhibit "2.•
7. Garnishee Woodforest National Bank has yet to answer Its Writ.
Ill. ARGUMENT AND AUTHORITIES
B. All social security benefits, Including SSDI, are exempt from collection actions,
and beyond the reach of deptors, pursuant to a federal statute that was a central
component of the original depression-era Social Security Act. See 42 U.S.C.
§407; H. R. 7260 (1935); see alsoln ra Frankfin, 506 B.R. 765, 769 (Bankr., C.D.
(
'-·· Ill. 2014) ("These proscriptions have been part of the Social Security Act since
1935"). z
9. The absolute nature of the social security benefit exemption has been recognized
by the United States Supreme Court, which observed that 42 U.S.C. §407(a)
"unambiguously rules out any attempt to attach Social Security benefits."
Bennett v. Arkansas, 485 U.S. 395, 397, 108 S. Ct. 1204, 1205, 909 L.Ed2d 455
2
The exemptiOn reaches Social SeCurity retirement Income, disability benefits, and supplemental security
Income, amongst other benefits. See Townsel v. Dish Network, 666 F.3d 967, 966 (7111 Cir. 2012).
Veterans' benefits are exempt and treated the same way. See Christensen v. Pack, 122 Nev. 1309, 149
P.3d 40,46 (Nev. 2006).
Confidential information may have been redacted from the document in complia nce with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
.ft,..J4. _Q
-~StaatFftHflfl'tE§HG~&!t481!1fRM!ec;t,~a_.!-+fi~I-L_ _ _ _ _Deputy
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C' (1988).
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10. The same complete exemption also reaches accounts that qualify for deferment
\\J
U'\ of federal income tax, Including Mr. McAfee's 401 (k) account that Is the subject of
~· "'
the GMS garnishment. IRS qualified retirement accounts are exempt tram
li'1
,.
0 collection actions, and beyond the reach of debtors, pursuant to Texas law. See
l\1
Tex. Prop. Code, §2.0021. The legal Issue, and exempt nature, regarding both
0
IIi accounts Is neither controversial nor a close call.
0
IV. EXEMPTION OF THE WOODFOREST (SOCIAL SEC URI~) ACCOUNT
-c. A. The Exemption for Social Security Benefits is Statutory and
Contains No Exceptions
11. The federal statute protecting federal social security benefits from the reach of
creditors, Including those on deposit, Is unequivocal and sweeping in Its scope. It
is so protective of. federal benefits, it goes as far as to prohibit recipients of these
benefits from voluntarily choosing to assign or alienate these benefits, even for
valuable consideration. See 42 U.S.C. §407. Indeed, the sole manner these
(_ funds can be put into the hands of others is through standard purchases of goods
and services after the benefits have been cashed or deposited. These funds
may not be assigned to creditors, including by the involuntary means of
garnishment. See Townsel v. Dish Network, 668 F.3d 967, 968 (71h C!r. 2012)
("A creditor that tried to garnish or attach Social Security benefits ... would
3
encounter a §407 defense).
3
The statute creates three separate protections for social securfty benefits. It forbids assignments of
such benefits. See 42 U.S.C. §407(a). Second, It makes these benefits beyond the reach of a
bankruptcy trustee. See /d. Third, and relevant here, II exempts these benefits from state or federal
judicial action. See /d. f'none of the moneys paid or payable or rights existing under this subchapter shall be
.. ..... ... "'"' ,..,,.,.,.,.,"......................-........ . . .
,.. ,..
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A_44_
Stertlng GO senechallll
.0 Deputy
12. The absolute nature of the exemption is based on Congress' Insistence on firm
and secure protection for "beneficiaries and those dependent on beneficiaries
from the claims of creditors." Reams v. Oklahoma, 411 F.3d 1164, 1172 (10th
Cir. 2005); see also In re Greene, 27 B.R. 462, 464 (Bankr., E.D. Va. 1983)
ill
(§407 "deals with the rights of social security recipients and seeks to protect !heir
benefits from the reach of creditors").
13. In fact, Congress wanted to protect beneficiaries "from seizure in the legal
process." /d. By doing so, Congress ensured that the underlying purpose of
social security benefits, to provide a minimum level of support and financial
stability, cannot be hindered by creditors, regardless of the merits of !he
creditors' claim. See id.; see also In re Buren, 6 B.R. 744, 746 (Bankr., M.D.
Tenn, 1980) ("The purpose of the Social Security Act of 1935 was to provide a
minimal level of economic security for the unemployed, the elderly, the homeless,
anq the blind").
14. The Woodforest account that Plaintiffs seek to garnish ls funded with social
security deposits. See Deposit/Transaction record of Woodforest National Bank
(showing monthly direct deposits as received from "SOC SEC US TREASURY'')!
15. While Mr. Afee Is disabled, he is admittedly not homeless, elderly, or blind. The
lack of a destitute state, however, as well as the existence of other means of
support, such as the Texas Department of Corrections, does not cause the
subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any
bankruptcy or Insolvency laYI').
4
A spreadsheet showing all deposits Into the account since December of 2009 Is attached ID lhls
pleading as Exhibit A. The Woodforest-generated slatement of account activity is attached to this
pleading as Exhibit B. The account ac!Mty ceases in November, 2010 except for the exclusive continuing
Social Security benefits directly deposited and Interest on the account See /d.
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A~d
G.
Stertlng Senechal Ill
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() shedding of the exemption of these funds from garnishment or collections. The
CL
(l Social Security Act uses absolute language, devoid of any exceptions, for any
(\j
111 circumstances. See Philpott v. Essex County Welfare Board, 409 U.S. 413,415,
~l·
93 S. Ct. 590, 34 LEd2d 608 (1973) (because "the language is all-Inclusive,• the
Vi
-·
~J Social Security Act prohibits any state from reaching federal disability benefrts);
N
~- id., 409 U.S. at 416 ("it Imposes a broad bar against the use of any legal process
(~
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c to reach social security benefits").5 There Is, therefore, no need-testing for the
exemption to apply. Cf. Reams v. Oklahoma, 411 F.3d at 1172 \'To tinker with
(
that scheme could open the door for a loss of protection down the road").
16. Rather, the exemption Is absolute. The statutory language, the United states
Supreme Court noted, "is broad enough to reach all security benefits," no matter
the cause of the benefits or the situation of the beneficiary." Philpott v. Essex
County Welfare Board, 409 U.S. at 417; see also In re Carpenter, 614 F.3d 930,
932 (81h Clr. 2010) (exemption statute Is unambiguous, and therefore courts have
no need for legislative history or implied exceptions); accord, In re Ragos, 700
F.3d 220, 222-224 (51h Clr. 2012).6
17. The statute, therefore, Is an unyielding prohibition on the garnishment sought In
this c~se. See N.LR.B. v. HH# Trucking, Inc., 755 F.3d 468 (ih Cir. 2014)
("Social Security benefrts .. . cannot be garnished or otherwise attached after
5
PhHpot was an unanimous decision/opinion of the Supreme Court.
8
There was, for a brief, time an Implied excepUon, In just one federal circuit, for beneficiaries who did not
need the social security funds for their sustenance. See Citronelle-Mabile Gathering v. Watkins, 934 F.2d
1160 (11 1h Clr. 1991). Not one of the Citronelle courfs sister circuit courts adopted that holding given the
absolute language of the statute. Citronelle's reach, In any event, tennlnated at the hand of the Supreme
Court. See Law v. Siege/,- U.S.-, 134 S.Cl11BB, 1196,188 L.Ed2d 146, B2 USLW 4140 (Marth
2014).
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
receipf'); NCNB Financial Services v. Shumate, 829 F. Supp. 178, 180 0/V.D. Va.
Jl 1993) (statute "prohibits attachment, levy, or garnishment on such benefitsj; In
.,
1,\j
IJI re Franklin, 506 B.R. 765, 773 (Bankr., C.D. 111.2014) (exemption provision is not
tied to Bankruptcy Code and Is assertable defensibly Including against
garnishments). In re Miller, 445 B.R. 504, 507 (Bankr., D.S.C. 2011) (the statute
"contains no limiting language" and therefore extends to all social security
income); id., ("section 407(a} operates as a complete bar to the forced inclusion
of past and future social security proceeds In the bankruptcy estate') [quoting In
re Carpenter, 615 F.3d 930, 946 (Blh Cir. 2010)]; see a/so Bennett v. Arkansas,
485 U.S. 395, 398, 108 S. Ct. 1204, 1205-06, 99 L.Ed2d 455 (state may not
attach social security benefits of state prisoners) (per curiam); Marengo v. First
Massachusetts Bank, 152 F. Supp. 2d 92 (D. Mass. 2001) (efforts to reach
account contained benefrt deposits violated Social Security Act).
18. Judicial interference with these funds, Indeed, is so disfavored, It has been held
to Implicate the constitutional due process rights of social security beneficiaries.
(
See Dionne v. Bouley, 757 F.2d 1344, 1350 (1st Clr. 1985) ("It is also clear that
Dionne's interest In retaining her exempt social security funds free from
attachment was the kind of property Interest that is entitled to due process
protection").
19. Earlier this year, the United States Supreme Court once again held tha~ the
statute means what it says:
§ 522 does not give courts discretion to grant or withhold exemptions
based on whatever considerations they deem appropriate. Rather, the
statute exhaustively specifies the criteria that will render property
exempt.
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Deputy
- - - - - - - - - - - - -·--- · ·- -
('])
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t\ Law v. Siegel,- U.S.-, 134 S. Ct. 1188, 1196, 188 LEd2d 146,82 USLW4140
V't
(\j (March 2014); see also id. ("courts are not authortzed to create additional
,•.
IIi
exceptions"); In re Franklin, 506 B.R. at 773 ('Congress has strongly expressed
\rt
,. Its policy of protecting social security benefits, and it is not for the courts to read
C'•''
N an Implied exception" Into the exempting statute).
...
,.
\.J 20. The mountain of precedent and the unambiguous wording of the federal statuiB
U"1
::;
mandate the quashing of the Woodforest writ. Social security funds can never be
..
( used to pay creditors, except when received, turned into cash, and become the
subject of voluntary spending by the debtor. See In re McFarland, 481 B.R. 242,
250 (Bankr., S.D. Ga. 2012) (social security benefrts remain exempt from
creditors after they are "received by the Social Security recipient and deposited
Into the bank'1; In re Moore, 214 B.R. 628, 630 (Bankr., D. Kan. 1997) (the funds
do not lose their exempt status when deposited Into a bank account'1; see also S
& S Diversified Services v. Taylor, 897 F. Supp. 549, 552 (D. Wyo. 1995) (Social
7
( __ Security benefrts remain exempt when deposited Into joint bank account).
21. These benefits, and the Woodforest Bank account, are, absolutely and entirely,
beyond the reach of any creditors, and therefore an impermissible object of a writ
of garnishment. See NCNB Financial Services v. Shumate, 829 F. Supp. at 180
(W.O. Va. 1993} (statute "prohibits attachment, levy, or garnishment on such
7 One creditor can get at social security benellts: the government of the United States. See Lockhart v.
United States, 546 U.S. 142, 145, 126 S.Cl699, 701, 163 L.Ed2d 557 (2005) (federal government may
attach social security benefits of federal student loan debtors. Congress, however, expficiUy passed an
exception to the no-attachment provision of the Social Security Act to achieve that result See 31 U.S.C.
§ 3716(c)(3)(A)(J). The fact that Congress had to twice-amend. the debt collecUol) legislation, and
specifically overrtde the anti-creditor provision of the SOCial Security Act, demonstrates how steadfast lhls
protection remains.
C onfidential inform ation may have been red acted from the document in complia nce with th e Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A..J4
Stef1ing GO Senechal lit
.o Deputy
benefits"); fn re Franklin, 506 B.R. at 773 {Bankr., C.D. 111.2014) (exemption
provision Is not tied to Bankruptcy Code and is assertable defensibly Including
....
against garnishments). To ens~;ne that the congressional/statutory protection oi·
social security benefits is achieved, writs of gamfs.hment Inadvertently issued
without the Court's knowledge of the exempt status of these funds, must be
quashed. See NCNB Financial Services v. Shumate, 829 F. Supp. at 181
()
iii (quashing writ to the extent it reached exempt funds).8
0
B. COMINGLING OF SOCIAL SECURITY BENEFITS DOES NOT AFFECT TH8R
·C. EXEMPT STATUS, AND ANY SUCH COMINGLING IN THE WOODFOREST
ACCOUNT CEASED YEARS AGO
22. It may be true that the Woodforest Account was occasionally used to hold other
assets of Mr. McAfee, unrelated to his social security benefrts. This has no
bearing on the protected status of the account and of the social security funds
within ft. See NCNB Financial Services v. Scumate, 829 F. Supp. 178, 180 ryv.o.
Va. 1993) ("Social security benefits are protected even if they are commingled in
a savings or checking account with funds from other sources"); In re
Lichtenberyer, 337 B.R. 322, 325 (Bankr., C.D. Iff 2006) (same).
23. While courts may-differ in the accounting method used to calculate protected I
funds in a comlngled account, no court has questioned the protected status of
I'
i
I
1
While the federal regulations Insist that banks calculate the 'lookback" amount, reaching two months of
deposits, that small period of time only addresses the bank's requirements. None of the deposits of
federal benefit funds are reachable by creditors, no matter how long ago the deposit oa:urred. See 31.
I
C.F.R. §212.6 (duty to determine an amount that the financlallnstitutiOil must protect from creditors); ld.,
§212,g (safe harbor for financial Institutions form liability claims). The regulations do not, and canno~
change the blanket exemption of federal benefit funds from the reach of creditors. See /d., §212.6
('Nothing In this part shall be construed to limit an Individual's right under Federal Jaw to assert against a
creditor a further exempUon from garnishment In excess of the protected amoun~ or to alter the exempt
status of funds that may be protected from garnishment under federal law.
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A~d · .o
. Starting G. Senechal lit
Deputy
social security benefits in a comlngled account On the contrary, the protected
status is 'black-letter law,' natlonaUy. See Philpott v. Essex County We/faro
Board, 409 U.S. 413,416-17, 93 S. Ct. 590,592-93,34 L.Ed2d 608 (1973) (funds
•..
exempt so long as they maintain the character of money); In m King, 508 B.R.
U'l
71, 78 (Bankr., N.D. Ind. 2014) ("commingling of an earned Income credit refund
with other funds does not affect the ablltty to claim the statutory earned income
credit exemption"); In m Lantz, 451 B.R. 843, 847 (Bankr., N.D. Ill. 2011)
(depositing funds into an account that contains other funds does not lose exempt
·(
status for social security funds, if the latter can be traced); see generally 2A Soc.
Sec. Law & Prac. §34.8 (Sept. 2014).
24. Because the account may have received, and may have comingled funds on
deposH, this Court can hold a hearing to trace the protected assets, if the
Garnishor deems -such a hearing worth the time and expense. See Philpott, 409
U.S.at 416-17, 93 S.Ct at 592-93; see a/so Christensen v. Peck, 149 P.3d at 48
(it "defies logic" to argue that exempt benefits lose that status with comingiing).9
25. in the present case, the Court need not be con~med about choosing .the best
·method, as the bank records for the account show that the funds now on depostt
came exclusivelv from the Social Security Administration. See In m Hensley,
393 B.R. 186, 198 (Bankr., E.D. Tenn. 2008) (accepting testimony that entire
8
Tracing can be done through the last In/first out method {UFO), lastlnllast out {LIFO), and other means.
All calculations are •an equitable substitute for the lmposslbiHty of specific Identification.• In re Lantz, 451
B.R. at 848; In re Uchtenberger, 337 B.R. 322, 325 {Bankr., C. D. Ill. 2006) {selection of methods should
be guided by the principle that exemptions are to be Interpreted noorally, In favor of the debtor). In other
Instances, courts have chosen a pro-rata basis by measuring the percentage of deposits that came from
the exempt source. See Neilson v. McGuire, 2006 WL 1875383, at"4 {D. Nebr. 2006).
Confidential information may have been r ed acted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
ft~ Q
Sterling G. Senechal Ill
Deputy
(\;
u·1
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0 source of funds In bank account except for one gift were social security
Cl..
benetits). 10
ttl
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U"i V. EXEMPTION OF THE GMS (IRA) ACCOUNT
"''''
26. The exemption for IRS qualified tax-deferred retirement accounts, such as Mr.
~·!
•.
~·
t .•. McAfee's GMS account, comes from state law. See Tex. Prop. Code,
N
... §42.0021(a) (Including within exemptions •a person's right to the assets held in or
()
U'1 to receive payments, whether vested or not, under any stock bonus, pension,
0
annuity, deferred compensation, profit-sharing, or similar plan"). Such funds and
..( '
such accounts are "exempt from attachment, execution, and seizure for the
satisfaction of debtsft so long as the account Is exempt from immediate federal
income taxation. /d.; sea also Lozano v. Lozano, 875 S.W.2d 63, 66 (TexApp.-
Houston [141h] 1998}. iRAs have been exempt from the reach of creditors in
Texas, including judgment creditors, since 1987. See Williams v. Texas
Commerce Bank, 766 S.W.2d 344,346 (Tex.App.- El Paso 1989).
27. The GMS account is, was intended to be, and is set forth by GMS as a tax-
(
deferred retirement account, and qualifies for exemption under §42.0021(a). See
Letter from Matthew E. Lipman (counsel for GMS) to County Clerk (Oct. 23,
2014) (Exhibit 2) (describing garnished account as a "DLJ Qualified Retirement
Plan"); sea a/so Summary Plan Description for GMS Group, L.L.C. Salary
10
A spreadsheet showing all deposits Into the account since December of 2009 is attached to tills
pleading as Exhibit A.
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A..J.J .o
-:Q1'-*•~el'1i"HI~Mg~G<-1SS;eMFI'W!&e.em.Raatl-I'IIR-l_ _ _ _ __ Deputy
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lil
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t;J Savings Plan, at p. 3, \{6 (describing employee contributions as 401(k) lax-
Cl,
deferred contributfons). 11
U"l
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u·1 28. The GMS account, therefore, may not be turned over to a creditor, Including by
r•·
garnishment. See Bergman v. Bergman, 888 S.W.2d 580, 586 (Tex.App. - El
,.
Iii
C"··' Paso 1994) (reversing turnover order bec~use account was exempt); accord Nu-
i\1
•" Way Energy Corp. v. Delp, 205 S.W.3d 667, 679 (Tex.App. -Waco 2006); Kent
CJ
u: v. Holmes, 139 S.W.3d 120, 131 (Tex.App. - Texarkana 2004); Bargman v.
0
Begman, 888 S.W.2d 580, 586 (Tex.App. - El Paso 1994); Morgan v. Horton,
-c. 675 S.W.2d 602, 604 (Tex.App. -Dallas 1984). The unanimous voice of the
courts results from the clear legislatiVe purpose to "protect the Interests In the
retirement fund from creditors and assignees" Kent v. Holmes, 139 S.W.3d at
131.
29. Like with social security benefits, the exemption for tax-deferred retirement
accounts Is read without neither exemptions nor narrowness, to fulfill a state
policy favoring debtors that has existed since the nineteenth Century. Sea
c· Bergman v. Bergman, 888 S.W.2d 580, 586 (Tex.App.- El Paso 1994) id., 888
S.W.2d at 585 (''the long standing public policy of Texas has favored debtors
over creditors) [cftlng Bell v. Indian Live-stock Co., 11 S.W. 344, 346 (Texas
1889)].
30. There can be little doubt that a firm such as GMS, which represents itself as a full
service brokerage house, and advises people on planning for their retirement,.
presented their employees with anything other than an IRS-quafffled plan for their
11 The chart of accounts Included In Mr. Lipman's letter (Exhibit 2 to that letter) Is attached to this pleading
as Exhibit C. The Plan Description Is attached to this pleading as Exhibit D.
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
JL,~Ster11ng G Senechal Ill
_Q Deputy
'il'
!fl
C)
C) retirement benefrt. See In re Youngblood, 29F.3d 225, 228 (5th Cir. 1994) (tax
C1.
treatment of account Is determinative Inquiry under §42.0021); see also /d., 29
:fi
~
lf'! F.3d at 229 f'the legislature Intended for its own state courts ... to defer to the
t.::l·
IRS in determining whether a retirement plan Is 'qualified' under the Internal
i{i
..
r~ Revenue Code"); Lozano v. Lozano, 975 S.W.2d at 67 ("evidence that an
``
,,. account is an individual retirement annuity is sufficient to establish that it Is
(/
U'1
C)
exempt'). 12
31. Whffe Mr. Storer has, and can put on evidence showing the tax-exempt nature of
·c· the GMS account, that exemption Is clear from the facial descriptions of the
account Issued by GMS. In any event, garnishment has no basis In Texas'
common law, and Is ·purely statutory. Consequently, a party claiming an
entitlement to garnishment has to prove that the property he Is after Is subject to
the procedure. See Del-Phi Engfneering Assocfates v. Texas Commerce Bank,
771 S.W.2d 589, 591 (Tex.App. - Beaumont 1989) (Burgess, J., dissenting)
(motion to dissolve writ joins the issue, and then party seeking garnishment must
C. put on proof that they are entitled to the funds).
32. That burden cannot be met by the Plaintiffs in this cause, as the GMS account Is,
beyond question, a tax-deferred retirement account and beyond the reach of all
credltors. 13
12 Moreover, unlike with social security benefits, it Is the account that Is exempt, the source of the funds Is
Irrelevant See ld., 975 S.W2d at 68.
13 If the burden Is placed on Mr. storer, as the party claiming the exemption, he can easily do so If
permitted an evidentiary hearing with sufficient time to subpoena the needed records.
Confidential information may have been redacted from the document in compliance with the Public Infor mation Act.
A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Harris Coun ty, Texas
ftr.44_ .Q
--e.St"'e Of counsel on the Pleading:
c·) /s/1{.ooert 'feir
RobertTeir
Robert Teir, PLLC
845 FM 517 West, Suite 200
Dickinson, Texas 77539
Office: 832.365.1191
Facsimile: 832.550.2700
Email: rob@probateguardianship.com
Attorneys for Mr. Charles Storer, Power of
Attorney for Kenneth McAfee
' )
l ... ·
MOTION TO PARTIALLY RELEASE INJUNCTION
Page 3 of4
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Deputy
~·
(0
CERTIFICATE OF SERVICE
~J
()
L\. I hereby certify that a true and correct copy of the foregoing has been forwarded
to all parties and/or counsel of record through our electronic seryjce provider, certified
Ui
~,J mail, return receipt requested and/or facsimile on this flv day of February,ID
VI
"
2015. ~ Ond~.;..,____
U'l Esther Anderson
"'
(~ cc: Mary Elizabeth Duff
('-.J 210 Main Street VIA ELECTRONIC SERVICE PROVIDER &
Richmond, Texas 77469 FACSIMILE 281-341-5517
0
Vi
Ci Matthew E. Lipman
Faust Oppenheim LLP
() 488 Madison Avenue
New York, New York 10022
VIA ELECTRONIC SERVICE PROVIDER &
FACSIMILE 212-371-8410
Dean M. Blumrosen, Esq.
4615 Southwest Freeway
Suite 850 VIA ELECTRONIC SERVICE PROVIDER &
Houston Texas 77027 FACSIMILE 713-524-5570
Woodforest National Bank,
through their registered agent
James D. Dreibelbis
25231 Grogan's Mill Road
Suite 100
The Woodlands, Texas 77380 VIA CMRRR 'f '/I~ '1\ 00. o:>8& 15Dt( ~IPL/S SI
() Charles Storer
N:\Storer, Char1es\Pieadfngs, Motlona, ApplfcaUons\Mot to Raleau lnjunc:tlon.docx
MOllON TO PARTlAlLY RELEASE INJUNCTION
Pago4cf4
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A_..J.J_ _Q
-~St'*"anrrttt.ln.....grlG;o::t--iS~e....n=ect....m\att-1*IUI--- - - - -0 eputy
CAUSE NO. 396,935
IN THE ESTATE OF § IN THE PROBATE COURT
§
JANET F. McAFEE, § NUMBER 1 OF
§
DECEASED § HARRIS COUNlY, TEXAS
Ui ·•···················•··•··•·••···••··•··•··········•·························•
.... CAUSE NO. 396935-401
0
N
0 IN RE § IN THE PROBATE COURT
U'i JANET F. McAFEE, §
0 Deceased § NUMBER ONE
§
c. ROSEMARY FOL YN and
JAKEFOLYN
§
§
§
~ § OF
§
THE GMS GROUP, LLC and §
WOODFOREST NATIONAL BANK, § HARRIS COUNlY, TEXAS
Defendants
ORDER GRANTING STORER'S MOTION TO RECONSIDER MARCH 16, 2015
ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION
AND
RELEASING SOCIAL SECURilY PROCEEDS
On this day came to be considered the Motion for Reconsideration C?f March 16,
··-· 2015 Order Partfa//y Releasing Temporary fn}unc:tfon and Motion for Entry of Order
Releasing Social Security Proceeds from Injunction, filed by Charles Storer, Power of
Attorney for Kenneth McAfee, and after review and consideration of said Motion, the
evidence, the responses filed, and the arguments of counsel, the Court finds the
following:
1. On June 8, 2011, all parties to the above stated cause entered an Agreed Order
for Temporary Injunction.
ORCER
PAGE 1
I11
EXHIBIT I
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
~
~=-.:. 4
.c-~
''d~-~
_Q_Deputy
~lng 0. Scmechallll
(")
w
0 2. On January 27, 2015, the Court entered an Order Partially Granting Motion to
0
C\.
Quash Writs of Garnishment as to two accounts:
U'i
~.j a. Woodforest account ending In 404, in the name of Kenneth Cooper
u"l
e•
McAfee holding social security proceeds of Kenneth Cooper Mc:Afee; and
ul
e• b. GMS account ending In 606, an Individual retirement account of Kenneth
,.
,~
N McAfee.
~··
0
u~
The Court also ordered that all other accounts at GMS Group, LLC, holding
0
assets of Kenneth McAfee or for the benefit of Kenneth C. McAfee be subJect to
I
\
the writs such that Rosemary and Jake Foltyn recover $6,694.39 in account
number 55H056008 and $1,661.15 in account number 55H004628 for a total of
$8,355.54 from GMS Group, L.l.C., upon receipt of an order releasing the
Agreed Order for Temporary Injunction.
3. On March 16, 2015, the Court entered an Order Partially Releasing Temporary
Injunction releasing both the non-exempt accounts Plaintiffs and/or the Estate
wanted.
4. On Apri115, 2015, Charles Storer filed a Motion for Reconsideration of March 16,
2015 Order Partially Releasing Temporary Injunction and Motion for Entry of
Order Releasing Social Security Proceeds from Injunction. It is therefore,
ORDERED, ADJUDGED AND DECREED that this Order shall be and is a partial
release of the June 8, 2011 temporary injunction as to the Woodforest account number
XXXXXX3404, In the name of Kenneth Cooper Mc:Afee holding social security benefits
of Kenneth Cooper McAfee.
ORDER
PAGE2
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
~
r.O
(';
()
All other accounts and assets described in the June 8, 2011 Agreed Order for
a. Temporary Injunction remain subject to the Agreed Temporary Injunction.
``
N
...U'l SIGNED this _ _ _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ _, 2015 .
U"l
<"
0
N
Cl JUDGE PRESIDING
~·I
0
(
APPROVED AND ENTRY REQUESTED:
(_ ANDERSON PFEIFFER, PC
By: Esther Anderson
SBN: 00792332
By: Rob Teir, of Counsel
SBN: 00797940
845 FM 517 West, Suite 200
Dickinson, Texas 77539
Office: 281-488-6535
Facsimile: 281-614-5205
Email: esther@probateguardlanship.com
Attorneys for Charles Storer, POA for
Charles McAfee
N:\Storer, Charlas\Orders\order granting reconsJdaraUon.clocx
ORDER
PAGc3
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A::ni~ Deputy
Tab 15
May 14, 2015 Transcript
1
1 TRIAL COURT CAUSE NUMBER 396,835-401
2 IN RE: THE ESTATE OF * IN THE PROBATE COURT OF
JANET FOLTYN McAFEE, *
3 *
ROSEMARY FOLTYN and *
4 Jake Foltyn * HARRIS COUNTY, T E X A S
*
5 THE GMS GROUP, LLC and *
WOODFOREST NATIONAL BANK, *
6 Defendants * COURT NUMBER ( 1) ONE
7
8 MOTION FOR RECONSIDERATION TO PARTIALLY RELEASE
FUNDS AND MOTION FOR SANCTIONS HEARING
9
10
11 Came to be heard on this the 14th day of May, 2015, Motion
12 for Reconsideration to Partially Release Funds and Motion for
13 Sanctions Hearing, in the above-entitled and numbered cause,
14 and all parties appeared in person and/or being represented by
15 Counsel of Record, before the Honorable Loyd Wright, Judge
16 Presiding.
17
18 VOLUME OF
19
20 0 R I G I NA L
21
22
23
24
25
2
1 APPEARANCES
2 ATTORNEY FOR CHARLES STORER:
3 Robert Teir
State Bar No. 00797940
4 845 FM 517, Suite 200
Dickinson, Texas 77539
5 Telephone: 831-365-1191
6 ATTORNEY FOR PLAINTIFFS, ROSEMARY FOLTYN AND
JAKE FOLTYN:
7
Dean Blumrosen
8 State Bar No. 02517900
4615 Southwest Freeway, Suite 850
9 Houston, Texas 77027
Telephone: 713-524-2225
10
ATTORNEY FOR THE ESTATE OF
11 ROSEMARY F. McAFEE, DECEASED:
12 Stacey Severovich
State Bar No. 24088393
13 210 Main St.
Richmond, Texas 77469
14 Telephone: 281-341-1718
15
16
17
18
19
20
21
22
23
24
25
3
1 THE COURT: The McAfee Estate.
2 MS. ANDERSON: Yes, Your Honor. Good morning,
3 Judge.
4 THE COURT: Good morning.
5 MR. BLUMROSEN: Good morning, Judge.
6 THE COURT: Good morning.
7 MS. SEVEROVICH: Stacey Severovich, here on
8 behalf of Rosemary Foltyn, the Administratrix of the Estate.
9 And that's S-E-V-E-R-0-V-I-C-H.
10 MS. ANDERSON: May I proceed, Your Honor?
11 THE COURT: Yes.
12 MS. ANDERSON: Just to let you know what's
13 coming, there are actually two things that were set today. One
14 was the Motion for Reconsideration and another was a Motion for
15 Sanctions. And after having a discussion with Ms. Duff
16 yesterday, I advised her that I would pass the Motion for
17 Sanctions pending further discussions that we are having.
18 THE COURT: Okay.
19 MS. ANDERSON: So the only thing that's before
20 the Court today is with regard to a Wood Forest Bank account.
21 And I don't know, well, in the Order that the Judge signed at
22 the last hearing you didn't deny our request, you just didn't
23 sign an Order allowing us access to the funds. So if I can
24 just go through a couple of things, this started with a Writ of
25 Attachment on various bank accounts, primarily the GMS account
4
1 and the Woodforest account.
2 Since that time we had a hearing on January 27
3 of 2015, and the Court entered an Order partially granting a
4 quash on that. And in that Order, it specifically addressed
5 the account that we are here for today, so at the beginning, in
6 the first paragraph, it states that the Court makes -- finds
7 the following, and in paragraph 2, the Court found that the
8 Woodforest account ending in 404, which is one we are talking
9 about, holds assets in the name or the benefit of Kenneth
10 McAfee. And then if you go down to the paragraph 5, the Court
11 further found that the Woodforest account ending in 404 holds
12 exclusively Social Security benefit proceeds of Kenneth McAfee,
13 which benefits are exempt from garnishment under 42 USC sec.
14 407, and so the only thing we are before the Court on today is
15 a bank account that includes only Social Security proceeds.
16 At the hearing on January 27th, we had that
17 discussion. Everyone saw the bank records and this Court made
18 a finding that that bank account only included Social Security
19 proceeds. So after that, we got that determined and then we
20 needed to release a Temporary Injunction that's been in place
21 for a very long time, and so I filed a Motion to Partially
22 Release or lift the Temporary Injunction. I wanted our one
23 Social Security account to be lifted because it's protected.
24 That money will never go toward anything. And then I asked for
25 two of Plaintiff's accounts to be released. Rather than having
5
1 two people do the work, I just put it all in one Order. At the
2 hearing, and I believe the associate judge was sitting at that
3 time so she did not have the history that this court had, but
4 for whatever reason or however it happened, the Court signed an
5 order lifting the Temporary Injunction as to the two GMS
6 accounts, which are the ones the Plaintiffs were seeking. I
7 believe they have already received their $8,000 but did not
8 issue an Order lifting the Temporary Injunction on the Social
9 Security accounts.
10 Now, in what I have learned from Plaintiff's
11 counsel, Ms. Duff, is that they -- their position is they have
12 a claim to a certain dollar amount, and I'm just going to use
13 the number 38,000 for ease, but it's a 25,000 and a 9,000, so
14 about $38,000. Their position is that that money came out of a
15 community property account, went into the Social Security
16 account, and so then part of the money in that Social Security
17 account they are entitled to. What our position is, this Court
18 has already made a finding that the only money in that account
19 is Social Security money.
20 We are not saying they don't have a claim to the
21 38,000, we are saying that they will never be able to get the
22 38,000 from the money that's in the Social Security account
23 because it's exempt from garnishments, from judgments, from
24 everything, because of federal law. There is other assets. It
25 ranges from 600 to a million dollars, depending on which
6
1 Inventory you look at. But there are other assets that that
2 money could potentially come from. This is just not the bank
3 account it's going to come from. There are no exceptions to
4 the rule. The Court has already made the findings. It entered
5 an Order in January. There was no Motion for New Trial or
6 Motion for Reconsideration. It's a done deal. And so for it
7 to be attacked now, one, it's improper because it's beyond the
8 time frame. It's a collateral attack on this Court's previous
9 decision and they know, they know that that money is not
10 subject to anything based upon federal law.
11 I remember at our very first hearing there was a
12 discussion about the circumstance of the case and how bad it
13 was but the Court said, I'm going to follow the law, and that's
14 what I'm asking you to do. You have you already made the
15 decision. It's not going to be attached. It can not be
16 attached unless we don't follow the law. And the Injunction
17 needs to be lifted. Once that's done, then there are all of
18 these other accounts which to this date we have tried to give
19 to Plaintiffs. We can't push it on them, Judge. They won't
20 take it. But there are other monies there to address whatever
21 other claims they have. And so all we want today is the Order
22 that was previously filed. I printed it out again. And all it
23 does is lift the Temporary Injunction only the Social Security
24 account. All of the other accounts, I believe on the last
25 page, it's very clear that that Temporary Injunction continues
7
1 for all of the other accounts that are in place.
2 I would also like to say, Judge, aside from
3 that, this Temporary Injunction that everyone is talking about
4 and relying on, you know has been going on for a very long time
5 without a cause of action, without a trial date. It's
6 basically an agreement for everyone to have a standstill. And
7 that's fine. We intend to honor it. But it's time to separate
8 these parties. It's time for the Plaintiffs to collect on
9 their judgment. Mr. Store, who is the agent under a Power of
10 Attorney for Mr. McAfee, is ready, willing and able to do
11 whatever he needs to do to turn over all of Mr. McAfee's
12 assets. It's just time for this case to end and to get these
13 parties separated. There are only two bank accounts at issue
14 that I'm aware of. One is a Social Security account which
15 should be addressed today and the other is the 401 K plan which
16 are Ms. Duff and I are working on.
17 THE COURT: So this account that I did something
18 with in January, it was represented to be all Social Security?
19 MS. ANDERSON: Not only was it represented but I
20 had the exhibits here in Court. Everyone looked at them. We
21 discussed it and showed you, Judge, that each of the bank
22 statements -- nothing has gone into the account. I mean, you
23 see the two thousand and something dollars from the Social
24 Security Administration that have come in on a monthly basis
25 and so the bank statements are whatever the dollar amount is
8
1 like $2,000, $2,000, $2,000, $2,000. It's just very clear and
2 that fact is never going to change. I understand he took money
3 from someplace else and put it in that account but he also
4 THE COURT: That's a problem, isn't it?
5 MS. ANDERSON: It is, but he --
6 THE COURT: The $34,898.58 that seems to be in
7 question?
8 MS. ANDERSON: Let me finish the story.
9 THE COURT: Okay.
10 MS. ANDERSON: He put it in the Social Security
11 account and then he gave it out. They have a claim for that
12 money. They had a claim and there are other assets to take it
13 from. What I'm saying is, it will legally never come out of
14 the Social Security proceeds. The briefing is done. I mean,
15 it goes on and on and on from the 30's of the basis why the
16 federal government protects Social Security assets. I'm not
17 saying it's right, I'm saying that's the law. I'm saying they
18 have a claim. It's just they can not be paid by the Social
19 Security proceeds, they need to be paid by some other asset of
20 Mr. McAfee's of which there is a lot of.
21 THE COURT: Okay. So maybe I'm missing some
22 aspects of the history of this case, but if somebody put $10
23 million into this account, would that mean that because it's a
24 Social Security account or it's an account that held Social
25 Security funds that you can't reach the $10 million?
9
1 MS. ANDERSON: Absolutely not. But here is the
2 difference, if the $10 million is there, you get it. You just
3 can't touch any of the Social Security money. Because he paid
4 it out, the only thing that was left there, and you can trace
5 it, I know it doesn't make sense, Judge, but it is all briefed,
6 if you can trace the Social Security funds, it's the one that's
7 protected. That is what our federal government has done. It's
8 not my call .
9 THE COURT: Even if it's commingled like this?
10 MS. ANDERSON: And it can be traced, yes,
11 absolutely. And I don't know if the Court has had the
12 opportunity to read the briefing that's done. All of that is
13 discussed. It doesn't matter if it was commingled, it could be
14 traced. In this case we don't even need to trace it. We
15 looked at the hearing that we already had on this issue and we
16 saw the bank statements that are very clear, page after page,
17 of a monthly Social Security deposit.
18 And once again, I have to emphasize, no one is
19 saying they don't have a claim to that $34,000. There are
20 other monies that they can get the 34,000, just like there is
21 other money that they are going to get the $2 million from if
22 they will just take it.
23 THE COURT: All right.
24 MS. SEVEROVICH: Your Honor, and I'm speaking on
25 behalf of Ms. Duff, she is the one that was at the last
10
1 hearing, and it's her position, and I know we discussed on the
2 phone yesterday, but in that judgment on January 27th there was
3 basically the garnishment is let me back up.
4 The January 27th Order went to whether the funds
5 in those two accounts could be exempt from garnishment or if
6 they were subject to garnishment. Now, the Order said that
7 they were exempt from garnishment in those two accounts. But
8 it has always been Ms. Duff's position that just because they
9 are exempt from garnishment doesn't actually go to the
10 characterization of the property. You can have community
11 property that is exempt from garnishment.
12 She has been asking for clear evidence as to
13 tracing where the two deposits, the first one being on April
14 23rd of 2010 for $25,162.66. It says wire tran. There was the
15 second deposit on May 4th, 2010, which was for $9,735.92. It's
16 classified as WT. We assume that's wire transfer again. Ms.
17 Duff has been asking for things that trace where those funds
18 came from so that she could adequately determine if they were
19 community property or separate property. We realize that they
20 are in, quote, a Social Security account, if you will, but that
21 doesn't mean they are Social Security monies, and it is their
22 burden to prove by a clear and convincing evidence that those
23 funds that were two deposits, is the only thing we take issue
24 with, were actually separate property. And so if they were
25 community property, if they were deposited from some other
11
1 community GMS account or something, then actually the Estate is
2 entitled to the fifty percent of that amount. And so that's
3 why we are just asking that, you know, if this Court wanted to
4 release the rest of the funds but put those two deposits into
5 the Registry until we could actually get the documentation that
6 traces those. Ms. Duff was under the impression that Mr.
7 McAfee was not cooperating and he wouldn't give documentation
8 to trace those, so all we have is the one exhibit which was
9 attached showing the deposits.
10 Everything that's in there that says SSDI, or
11 interest, Ms. Duff concedes is fine, that's Social Security.
12 And she realizes those are exempt and those would be his
13 separate property. But those two deposits that are not labeled
14 the same, they are labeled Wire Transfer or WT, she wanted
15 documentation on where that money came from, because if it's
16 community property, then he doesn't get the full amount.
17 THE COURT: What's in the account? How much is
18 in the account?
19 MS. ANDERSON: I believe it is in the 70's or 78
20 or 79, but, Judge -- are you finished? I just wanted to
21 respond to that directly.
22 MS. SEVEROVICH: I believe at the last hearing
23 as far as that judgment, and if I'm speaking out of turn, I
24 apologize, but there was objections made as to the wording and
25 that they weren't actually adjudicating whether or not this was
12
1 community funds or separate property, just whether or not they
2 could be attacked by judgment creditors. Correct me if I am
3 wrong.
4 MS. ANDERSON: And Judge, I will just address
5 those in the order that they were brought in. With regard to
6 the documentation on the account, Ms. Duff has never, never
7 asked for documentation tracing the account. What she asked me
8 to do was to tell her where they came from because she needed
9 to tell her client something. Those were her words to me.
10 What they did do was on the Plaintiff's side in the wrongful
11 death case the Plaintiff sent out discovery. He never filed a
12 Motion to Compel discovery. He never moved forward on it to
13 take that expense to go to where Mr. McAfee is. When Mr.
14 Storer came in, we voluntarily did that for him. Mr. Storer
15 went to see Mr. McAfee. Mr. Store got all the answers and
16 responded to all of the Requests for Production and
17 interrogatories. With that though, even if they are asking for
18 documentation, these are the hoops we have had to jump through.
19 They say they want a tracing on where it came from, yet if you
20 look at the Plaintiff's Original Inventory, she herself tells
21 me where it came from. I mean, in her Inventory she says on
22 5/4, 2010, from GMS account 612, ninety-seven thirty-five
23 ninety-two was transferred to Woodforest 404. On 4/23, 2010,
24 GMS, Account No. 914, twenty-five thousand was transferred to
25 Woodforest.
13
1 A. They know this. They have it. They put it in their
2 Inventory. There is no reason to trace. We have never said
3 the GMS account is not a community property asset. We know
4 fifty percent of it is theirs. I will even say that of the 35
5 or $38,000, it's community property, half of it is theirs.
6 Take the half. We can't give it to them, Judge. They have not
7 moved one step toward collecting any of the assets from all of
8 the other assets that are out there but what they will do is
9 cause Mr. Storer to use his own money to come down here,
10 hearing after hearing, to argue about the same thing that this
11 Court already decided on January 27th. We did it. That is not
12 -- the paperwork that she showed you is not the only thing that
13 was attached to the motion. Attached to the motion were the
14 bank statements from the bank. And so I don't know what else
15 can be shown other than a whole bunch of papers that say $2,000
16 a month, the total is X amount of dollars, it's all Social
17 Security funds.
18 THE COURT: Okay.
19 MS. ANDERSON: And I believe I have handed you
20 the Order.
21 THE COURT: Well, maybe I'm getting confused.
22 Are you saying that out of the 70 or $80,000 account they can
23 have the thirty-four eight ninety-eight?
24 MS. ANDERSON: No. I'm saying that that
25 thirty-four thousand was community property, and if it was
14
1 community property, then one-half is his and one-half is hers.
2 So whatever half of
3 THE COURT: And then one-half is subject to the
4 judgment, which if his is subject to the judgment which would
5 make it all hers.
6 MS. ANDERSON: Except that it comes from
7 someplace else, not the Social Security. Judge, that's one
8 account. If you will look at the Temporary Injunction, it's
9 pages of accounts here. There are so many accounts the
10 judgment is going to be met, and they need to let go of this
11 one that the government has protected and start separating
12 these people. There are only two accounts tying them together
13 and if why is it that since, I don't know, I've been in the
14 case since November or December trying to push it to them, I
15 can't get them to take a penny.
16 MS. SEVEROVICH: We are not saying Ms. Duff has
17 expressed this. We are not saying out of the $70-80,000,
18 whatever is actually traced to be his Social Security proceeds,
19 she agrees, that's his separate property, he can have it. Now,
20 if they are saying that the approximately 35 thousand dollars
21 came from other sources are which are not Social Security funds
22 which are community property, that's why we are saying to put
23 that thirty-five in the Registry of the Court. We would agree
24 to release the rest of it that is Social Security funds. But
25 the thirty-five thousand is not Social Security.
15
1 MS. ANDERSON: But Judge, that decision has
2 already been made. How many times -- we are arguing about it
3 right now.
4 THE COURT: Is that in paragraph five where I
5 said it is exclusively --
6 MS. ANDERSON: Okay, No. 2 holds assets in the
7 name of Kenneth. No. 5, the Wood Forest account, 404, that's
8 the one we are talking about, holds exclusively Social Security
9 benefit proceeds of Kenneth McAfee.
10 MS. SEVEROVICH: Which are exempt from
11 garnishment but that doesn't meaning whether there are
12 community or separate property funds in there.
13 MS. ANDERSON: It doesn't matter, they are
14 Social Security.
15 THE COURT: I think that's probably an interim
16 order. Here is -- let me tell you the bottom line, if I did
17 something wrong that I can fix I'm going to fix it. The fact
18 that I said something is exclusively, I think that's what you
19 are arguing, that I made a finding that's erroneous and you
20 know it's erroneous
21 MS. ANDERSON: No, sir.
22 THE COURT: Why isn't it erroneous when this 35
23 thousand seems to be non-retirement benefits that
24 MS. ANDERSON: Let me draw you a picture.
25 THE COURT: Do it like I'm a six-year-old.
16
1 MS. ANDERSON: I'm very visual.
2 THE COURT: That's from the movie Philadelphia.
3 MS. ANDERSON: So this is a 35K and we have got
4 a Social Security pot with Social Security of let's just say
5 fifty, okay?
6 THE COURT: All right.
7 MS. ANDERSON: Social Security goes in here.
8 Fifty came in here by two, two, two, two, each month, that
9 totals up to fifty. As soon as it went in here, days before
10 her death, it went out. That's the money that he gave his
11 ex-wife and his son. The bank statements that you looked at
12 were all of these two that total fifty. It is that simple.
13 This was, and hold on just a second, I mean, we are talking
14 about days.
15 THE COURT: There was sort of a brief
16 commingling but the tracing, from your point of view would be,
17 thirty-five comes in and goes out within a short period of
18 time.
19 MS. ANDERSON: Immediately. She died on May
20 8th, 2010.
21 THE COURT: Okay.
22 MS. Anderson: This deposit was May 4th, 2010,
23 that's nine thousand. It went into Woodforest. He gave it to
24 the son. This one came out of GMS 423, two weeks or so before
25 she died, twenty-five thousand, it went out and was paid to his
17
1 wife. That money is gone. Yes, it was commingled but it is
2 clearly traceable. They know he paid it to the wife and son
3 because that's been one of the --
4 THE COURT: Same amounts in and out?
5 MS. ANDERSON: The exact amounts. I mean, it
6 may have been twenty-five thousand instead of twenty-five one
7 six six, I don't recall, but that was the claim that was
8 potentially, do we go after your ex-wife and the son? We are
9 saying, no, we owe it to you. It goes over here. But it
10 doesn't come out of this bank account. This bank account is
11 Social Security. And Judge, you didn't make a mistake and I'm
12 not BSing you. These are plain-Jane bank statements. We have
13 already done this on January 27th and every time we come back
14 it's the same thing. It's the same thing. And I know that Ms.
15 Duff and I understand what the truth is and that that money is
16 available from other funds. I also know that they can't agree
17 to anything on behalf of their client.
18 MR. BLUMROSEN: May I respond, Judge?
19 THE COURT: Yes, briefly. Or, you know, go
20 ahead.
21 MR. BLUMROSEN: I will be -- I promise you, I'm
22 not happy that I'm here.
23 THE COURT: I understand.
24 MR. BLUMROSEN: As you know, I represent the
25 Plaintiffs in a wrongful death matter. I was served with her
18
1 Motion for Sanctions and her Motion for Sanctions for the first
2 time that I have ever heard this morning I was never notified
3 that she wasn't going forward on it, so that's why I'm here,
4 she never notified me.
5 THE COURT: Okay.
6 MR. BLUMROSEN: But, as you know, Judge, I filed
7 a Response and I also filed a Counter-Motion for Sanctions for
8 her to file her Motion for Sanctions, which addresses actions
9 that my clients have taken, that they knowingly filed improper
10 writs of garnishment. That's number one. And number two, that
11 they attempted to collect assets they knew to be exempt under
12 the law.
13 MS. ANDERSON: Are we going into my Motion for
14 Sanctions and his Response?
15 THE COURT: No.
16 MS. ANDERSON: Thank you.
17 THE COURT: We are going to do that some other
18 week.
19 MR. BLUMROSEN: All I'm saying is, Judge, I
20 wrote her a letter asking her to withdraw that. She didn't.
21 She is complaining about Mr. Store having to come down here for
22 his money. She has made me to come down here to defend my
23 client's actions, put something in writing that there is no
24 basis for. I have responded to that and I have indicated that
25 we want sanctions for her doing that.
19
1 The other thing I would like the Court to know
2 and I want the record to be very clear, she represented to the
3 Court that we haven't done anything to try and collect, we
4 never filed a Motion to Compel. As you are very well aware,
5 you signed an Order compelling Mr. McAfee to respond, so that
6 statement is simply not true.
7 Number two, nobody has ever offered me one
8 penny, not one dime. I promise you, we will take it. We have
9 a $2 million judgment. I've been working on this case for five
10 years. The representation that she is making to you that she
11 is offering us money and we won't take it, is simply not true.
12 If you want to offer me -- any money she wants to offer me that
13 Mr. McAfee has, we will take it right now. So that's just
14 simply not true. I'm not coming down here for fun. I'm not
15 coming down here because we enjoy having hearings, I'm down
16 here because she wanted my client to be sanctioned.
17 MS. ANDERSON: Judge, you were here at all of
18 our hearings. Have you heard me spout and rattle off how we
19 can't give them money? We have had that conversation often.
20 And I want to say that Mr. Blumrosen did not ask me for
21 anything, he told me what to do this week. And as a courtesy
22 to Ms. Duff, who is his co-counsel, who I spoke with yesterday,
23 I told her that I would consider passing the hearing. I
24 considered it. I will pass it. And if need be, I will amend
25 it and include the other account that the writ was issued on
20
1 that shouldn't have been issued. But I would really prefer to
2 just visit with Ms. Duff to continue our discussions and see if
3 everything can be worked out.
4 MR. BLUMROSEN: Just to clarify, Judge, I don't
5 represent the Estate. I'm not on the Estate case. If there is
6 anything to do with the Temporary Injunction, things of that
7 nature, that doesn't address the wrongful death, so I am Ms.
8 Duff's co-counsel only to the extent that we represent the same
9 parties, Ms. Foltyn. But I am not co-counsel on the Estate
10 matter, I'm only counsel of record along with Ms. Kelly Zeigler
11 on the wrongful death action. And I will state again on the
12 record, they have not ever offered us anything at any point in
13 time. And believe me, I will be sending a letter out today,
14 please let me know what you would like to offer us, we will be
15 glad to accept it.
16 MS. ANDERSON: And Judge, those things have been
17 done. These people work together, Ms. Duff and Mr. Blumrosen,
18 they have the same client. I'm talking to multiple attorneys.
19 And even yesterday, I told Ms. Stacey, I really don't want to
20 talk with you, I need to talk with Ms. Duff, because it is too
21 many different opinions, versions, thoughts of what is going
22 on, so I'm trying to keep it centralized to one.
23 The bottom line is, if Plaintiffs would file
24 something with the Court that it's just an Order, that all of
25 these assets that are Mr. McAfee's go to the Plaintiffs, we
21
1 will sign off on it. It's that simple. And that hasn't been
2 done since the date of the judgment. It hasn't been done since
3 I came into the case in November. It hasn't been done to date.
4 Instead, there is just this list of assets he's, you know,
5 keeping it from them. And we are not. We are ready to give it
6 to them. They need to just take it.
7 THE COURT: I mean, I don't think it's my job to
8 prepare the documents for this. What can I do to get y'all to
9 sit down and see if these representations are real and get this
10 over with?
11 MS. SEVEROVICH: We will take the 35. I'm
12 kidding.
13 THE COURT: Would a mediation --
14 MS. ANDERSON: I think part of the deal is
15 bringing at least Ms. Duff and I together. I know she is a
16 very busy person, you know, I mean, I can only count on someone
17 so much, so -- we are just not able to get on the same
18 schedule. But I really do think that if we got together it
19 would happen. I don't even think it needs to be a mediation.
20 MR. BLUMROSEN: On the wrongful death side we
21 will take anything she wants to offer, we will take it. I will
22 make that representation. This matter has been done on a
23 contingency basis. Anything she wants to offer to help satisfy
24 the $2 million judgment, we will take it. I'm not saying it
25 will extinguish the $2 million judgment. We will take whatever
22
1 he has. I will represent that to the Court right now. We
2 haven't been offered anything.
3 MS. ANDERSON: And we want the credit for it
4 because it will pay the entire $2 million judgment.
5 MR. BLUMROSEN: Certainly get the credit for it.
6 MS. ANDERSON: But I've been dealing with Ms.
7 Duff because she is the one who has the Inventory. I have no
8 idea I don't know what this wrongful death stuff is, all I
9 know is he has got a judgment. Okay? Well, where is the money
10 coming from if not from Mr. McAfee who is addressed in the
11 Estate Inventory. If he doesn't represent -- but that's why
12 I'm dealing with her.
13 THE COURT: Mr. McAfee, let me, and then I have
14 got to move on, but so you have this issue of what should be in
15 her Estate, correct?
16 MS. ANDERSON: We --
17 MS. SEVEROVICH: Right, we are still figuring
18 that out.
19 THE COURT: And that's her property, however
20 that works out. And then you have what's left is Mr. McAfee's
21 property, which some of it is exempt and some is not, and
22 whatever is nonexempt, up to $2 million, should go to satisfy
23 the judgment.
24 MS. ANDERSON: And that's what we are trying to
25 do. It's two accounts. It's Social Security of about seventy
23
1 thousand and the 401 which Ms. Duff and I are discussing right
2 now.
3 THE COURT: Which has what?
4 MS. ANDERSON: Well, it's really a little more
5 complicated.
6 THE COURT: Well, what's in it? How much money?
7 MS. ANDERSON: About two hundred thousand.
8 THE COURT: So how are we satisfying a $2
9 million judgment?
10 MS. ANDERSON: Because there is about a million
11 in her Estate, which means there is a million in his Estate on
12 the Inventory.
13 THE COURT: Okay.
14 MS. ANDERSON: That's only her half. And there
15 was a piece of real property that we say was valued between
16 eight hundred thousand and nine hundred thousand, and under
17 common law he gets a credit for that. She is claiming it's all
18 theirs, and that's fine, we want her to have it, but he needs
19 his credit for it because it was his separate property.
20 MS. SEVEROVICH: That's a whole nother ball of
21 wax.
22 MS. ANDERSON: Yeah. But they get everything,
23 Judge. We are not trying to keep anything except what is
24 exempt.
25 THE COURT: Okay.
24
1 MS. ANDERS: They get one hundred percent of all
2 of his assets except for what is exempt.
3 THE COURT: All right, I will look at it. I
4 mean, you're basically saying that we have left is unclear as
5 to the release of those funds that you think he is entitled to.
6 MS. ANDERSON: One account. That's what the
7 Order says. That one account, 404. It's not subject to
8 anything. And, you know, what does garnishment go with?
9 Garnishment with a judgment. So even if they get a judgment,
10 they will never be able to touch those funds. They need to get
11 it from someplace else.
12 THE COURT: And you're saying that you would
13 agree to something that puts funds in issue and, from your
14 perspective, into the Registry and releases everything else to
15 her client?
16 MS. SEVEROVICH: Correct. As Ms. Duff has
17 always said, anything that was Social Security, fine, we will
18 release that. But those two deposits Ms. Duff has issues with
19 as to their characterization, that's why we wanted that in the
20 Registry.
21 THE COURT: So that would be in the Registry
22 while that actually --
23 MS. SEVEROVICH: Is sorted out.
24 THE COURT: -- is figured out. It could
25 actually go to either side ultimately.
25
1 MS. ANDERSON: But, Judge, I think we need to be
2 careful because their characterization, meaning was it separate
3 or community. That has nothing to do with regard to, it's in
4 the Social Security account which is protected. We are saying
5 it's community.
6 THE COURT: I see what you are saying. I
7 understand. You are saying it went out at or about the time
8 that it went in or shortly after, and therefore that 35
9 thousand isn't even an issue from your perspective, that
10 everything that's left in there is protected under the Social
11 Security.
12 MS. ANDERSON: Right. And if you look back at
13 the motions that were filed, the briefing that was done before
14 the January hearing, all of those are attached, all bank
15 statements. I mean, I'm not particularly thrilled about this
16 case. I have always been straight with the Court and I'm never
17 going to try and mislead you in any way. The paperwork is
18 there. We have already gone through this. And I believe that
19 even if the Court did take thirty out, thirty-eight, and put it
20 in the Registry of the Court, that you would be violating
21 federal law. And I know that's not anyone's intent. So I
22 understand that the dispute is over characterization.
23 Characterization has to do with is it separate or is it
24 community. No one says that the money in the bank account is
25 not Social Security money. No one says that.
26
1 THE COURT: Well, I could also, if I knew the
2 balance, I could also allow the account to remain frozen as to
3 thirty-four thousand eight ninety-eight fifty-eight with the
4 understanding that there would still be this issue of who is
5 entitled to it.
6 MS. ANDERSON: Here is the deal, Judge, I mean,
7 this man is being punished. We know that. He did a bad thing.
8 A horrible thing. All right? Where it -- you are talking
9 about more hearings over $38,000 when there is so much money
10 over here --
11 THE COURT: Well then y'all -- that's what I'm
12 asking, what's the mechanism for y'all to actually sit down and
13 be forced to sort of work through this and
14 MS. ANDERSON: But there is nothing to negotiate
15 on the one account. If I do anything contrary, then I'm going
16 against federal law. Okay? So the only one that's left to
17 negotiate on is the 401K plan which is what we are negotiating
18 on. If they want to tag that at that thirty-eight something,
19 but they haven't come up with it and I can't do both sides of
20 this case.
21 THE COURT: Okay. All right, let me look at it
22 and I will let y'all know something by Monday.
23 MR. BLUMROSEN: Just one point briefly, Judge,
24 on the last point since, for her benefit, she wasn't here at
25 the January hearing, I agreed that that account was not subject
27
1 to garnishment. We did not agree with her language in the
2 Order for this very
3 THE COURT: Oh, I remember that nuance about all
4 this, that there was a concern that this would be used to
5 release, and that's where we are.
6 MS. ANDERSON: No, it is not. We had a January
7 27th hearing. It is the hearing afterward that there was an
8 issue over the Orders and at the hearing afterwards is the
9 hearing that you signed their Order on, and he is nodding his
10 head yes, so it is not the January 27th.
11 MR. BLUMROSEN: That's correct. But I'm talking
12 about the Order that she is showing you saying that it is
13 exclusively, when you signed that we had objected to it because
14 we thought that it was -- the language was unnecessary for that
15 Order and we agreed that that account, the Social Security
16 account that was designated, was not subject to garnishment.
17 We agreed with that. We thought her language in her Order gave
18 it more protection than it needed because I said I don't
19 represent the Estate and the Estate may or may not have claims
20 against it. But that Order was placed in front of you by her
21 and that was her Order and her language that we did not want
22 the Court to sign but the Court did sign it.
23 MS. ANDERSON: And we were all here. It wasn't
24 like it was just you and me talking in secret.
25 THE COURT: No, I understand.
28
1
2 MS. ANDERSON: All right, thank you, Judge.
3 THE COURT: Thank you.
4 MS. SEVEROVICH: Thank you, Judge. May we be
5 excused?
6 THE COURT: Yes .
7
8
9
10
11
12
13
14
15
16
17
18
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20
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29
1 C E RT I F I CAT E
2 COUNTY OF HARRIS *
STATE OF TEXAS *
3
I, Donald G. Pylant, Official Court Reporter in and for
4 Probate Court No. 1 of Harris County, State of Texas, do hereby
certify that the above and foregoing contains a true and
5 correct transcription of all portions of evidence and other
proceedings requested in writing by counsel for the parties to
6 be included in this volume of the Reporter's Record, in the
above-styled and numbered cause, all of which occurred in open
7 court or in chambers and were reported by me.
I further certify that this Reporter's Record
8 truly and correctly reflects the exhibits, if any, admitted,
tendered in an offer of proof or offered into evidence by the
9 respective parties.
I further certify that the total cost for the
10 preparation of this Reporter's Record is $203.00 and will be
paid by Esther Anderson
11
Given under my hand and seal of office this the 5th day
12 of August , 2015.
13
14
Is/Donald G. Pylant
15 Donald G. Pylant, C.S.R.
Official Court Reporter
16 in and for the County of
Harris and the State of
17 T E X A S.
18 Certification No. 668 Exp. Date: 12-31-2016
Probate Court No. One 201 Caroline Street, 6th fl.
19 Houston, Texas 77002 (713) 368-6692
20
21
22
23
24
25
Tab 16
Inventory, Appraisement and
List of Claims
'PROBATE COURT 1
No. 396,935
{)97895
IN THE ESTATE OF § IN THE PROBATE COURT
§
JANET FOLTYN MCAFEE, § N0.1
§
DECEASED § HARRIS COUNTY, TEXAS
INVENTORY, APPRAISEMENT AND LIST OF CLAIMS
-.·
Date of Death: May 8, 2010
The following is a full, true, and complete Inventory and Appraisement of all real property
situated in the State of Texas and of all personal property wherever situated, together with a List of
Claims due and owing to this Estate as of the date of death, which have come to the possession or
knowledge ofthe undersigned.
INVENTORY AND APPRAISEMENT
COMMUNITY PROPERTY VALUE
1. CASH IN BANKS:
Account #I
Institution: The OMS Group, LLC
Account type: Brokerage Account
Account/CD No: xxx- xxx612
Total value of asset: $0 "'
Less surviving spouse share: $<0.00> $0.00
Co-owners: None
Decedent's intere.st: 50%
*Note that (1) on April 23, 2010 Kenneth McAfee made a $1,700.00 distribution to an
unknown account; and(2) on May 4, 2010, Kenneth McAfee transferred $9,760.92, entire
remaining balance, to the Woodforest National Bank Account listed below.
Account #2
Institution: The OMS Group, LLC
Account type: Brokerage Account
Account/CD No: xxx- xxx628
Total value of asset: $53,749.42 *
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
Deputy
..
Less surviving spouse share: $<26,874.71> $26,874.71
Co-owners: None
Decedent's interest: 50%
*Note, on (1) May 13, 2010, Kenneth McAfee sent an authorization to GMS to transfer
balances of his accounts into Gerald Fry's JOLTA' at Bank of America, Account number
002663331329; and (2) on May 20, 2010 Kenneth McAfee wired the remaining balance,
$51 ,462.06, into Gerald Fry's IOLT A at Bank of America BOA acct no. 002663331329; wire
no. 026009593
Account #3
Institution: The GMS Group, LLC
Account type: Salary Savings Plan 401K
Account/CD No: xxx - xxx606
Total value of asset: $425,034.70 *
Less surviving spouse share: $<212,517.35> $212,517.35
Co-owners: None
Decedent's interest: 50% ·
* Note on May 25, 2010, Kenneth McAfee withdrew $200,000 and was sent to an unknown
location. GMS withheld $40,000.00 for taxes.
Account #4
Institution: The GMS Group, LLC
Account type: Brokerage Account
Account/CD No: xxx- xxx914
Total value of asset: $0 *
Less surviving spouse share: $<0.00> $0.00
Co-owners: None
Decedent's interest: 50%
*Note on April23, 2010, Kenneth McAfee wire transferred balance, $25,187.66, to account
at WoodForest National Bank, described below
Account #5
Institution: The GMS Group, LLC
Account type: Brokerage Account
Account/CO No: xxx - xxx008
Total value of asset: $6,772.52
Less surviving spouse share: $<3,386.26> $3,386.26
Co-owners: None
Decedent's interest: 50%
Confide ntial information may have been redacted from the document in compliance with the Public I nformation Act.
A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Harris County, T exas
AA~
--oSt~Ar~il:AAGQ-{:G.~Se~fi:Aeetelhf'\ia'\l-l-1111h-
i _ _ _ __ Deputy
Account #6
Institution: Woodforest National Bank
Account type: Multiparty checking with Right of Survivorship (Kenneth McAfee and
Brenda McAfee, Kenneth's first wife)
Account/CO No: xxxxxxx404
Total value of asset: $3 8,256.91 *
Less surviving spouse share:· $<15,605.71> $22,651.20.
Co-owners: Brenda McAfee and Kenneth McAfee
Decedent's interest: 25% of balance, plus 50% interest in the amounts that were transferred
from the OMS accounts shortly before Janet Foltyn McAfee's death, as set forth below in
points (1) and (2).
*Note, (1) on April 23, 2010, Kenneth McAfee transfers $25,162.66 (from OMS xxx-
xxx914) into this account; (2) on May 4, 2010, Kenneth McAfee transfers $9,735.92 (from
. GMS xxx-xxx612) into this account; (3) on July 1, 2010 Kenneth McAfee issues $10,000.00
check from this account to Michael McAfee; (4) on July 2, 2010, Kenneth McAfee issues
$15,000.00 check from this account to Brenda McAfee; (5) n July 2, 2010, Kenneth McAfee
issues $6,000.00 check from this account to IRS for 2008 taxes; (6) on November 29,2010,
/ Brenda McAfee issues $19,024.63 c}leck to McDavid Honda. ·
Decedent's share of Account #6 above is calculated as follows:
Funds transferred from OMS that Decedent claims a 50% interest in: $17, 449.29
$25,162.66/2 = $12,581.33
$9,735.92/2 = $4,867.96
$9,735.92 + $4,867.96 = $17, 449.29
Remaining funds in Woodforest that Decedent claims sa 25% interest in: $5,201.91
$38,256.91 (-) $17, 449.29 = $20,807.62
$20,807.62/4 = $5,201.91
Total interest Decedent claims: $22,651.20
$17, 449.29 + $5,201.91:;; $22,651.20
Account #7
Institution: Wells Fargo National Bank
Account type: Checking
Account/CI) No: xxxxxx 184
Total value of asset: $589.76
Less surviving spouse share:· $<294.88> $294.88
Co-owners: Kenneth McAfee
Decedent's interest: 50%
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A_A4___a
$1enmg Go Senechal II!
Deputy
2. MOTOR VEHICLES:
Vehicle #1
Description: 2006 Mazda Miata (MX-5)
YIN #: xxxxxxxxxxxxxx539
Total Value: $12,830.00
Less surviving spouse share: $<6,415 .00> $6,415.00
Co-owners: None
Decedent's interest: 50%
Vehicle #2
Description: 1959 Mercedes Model 190, 4 door
YIN #: xxxxxxx51 0
Total Value: $5,050.00 $2,525.00
Co-owners: None
Decedent's interest: 50%
Vehicle #3
Description: 2007 or 2008 Suzuki Motorcycle
YIN#: xxxxxxxxxxxxxx547
Total Value: $4,490.00
Less surviving spouse share: $<2,245.'00> $2,245.00
Co-owners: None
Decedent's interest: 50%
3. INSURANCE:
Policy #1
Insurer: unknown at this time
Policy No.: unknown
Total Value: $unknown $0
Co-owners: None
Decedent's interest: 50% ofpremium payments
4. HOUSEHOLD FURNISHINGS:
Household furniture and furnishings $14,000.00
Total Value: $14,000 .
Less surviving spouse share: $<7 ,000.00> $7,000
Co-owners: . Kenneth McAfee
Decedent's interest: 50%
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
AAd.~
Sterling G Senechal Ill
Deputy
TOTAL COMMUNlTY PROPERTY
SEPARATE PROPERTY VALUE
1. REAL PROPERTY:
Parcel #1
LEGAL DESCRlPTION:
Lot 12 Block 16 of South Hampton Place, a subdivision in Harris County, Texas according to
the map or plat thereof, recorded in Vol. 6, Page 52 of the Map Records of Harris County,
Texas, commonly known as 2119 Tangley Street, Houston, Texas Harris County
Total Value: $537,701.00 • $423,454.10
Less remaining Chase Bank mortgage balance: ($114,246.90)
Co-owners: None
Decedent's interest: 100%
*Note that Kenneth McAfee gifted his interest in the property to Janet Foltyn McAfee via
gift deed on July 11, 2008, making it her separate property.
Parcel #2
LEGAL DESCRIPTION:
Ten (1 0) acre tract of! and situated in Matagorda County, Texas in the G .J Williams League,
Abstract No. 103, being a portion of Lot No. 55 of the Elmaton Fanns Subdivision, and
being out of the Southwest comer thereof, the map of said subdivision being recorded in the
County Clerk's Office in Matagorda County, Texas, and said Lot. No. 55 being conveyed by
B.W. Trul et ux to E.E. Adamcik by deed dated February 9, 1932, recorded in Vol. 94, Page
211 of the Matagorda County Deed Records
Total Value: $13,750.00 $13,750.00
Co-owners: None
Decedent's interest: 100%
Parcel #3
LEGAL DESCRIPTION:
Mineral Interest under the 10 acres in Matagorda county listed above in the Saba-Peterson
GUW3.
Total Value: $5,784.28 $5,784.28
Co-owners: None
Decedent's interest: 100%
2. HOUSEHOLD FURNISHINGS:
Artwork $17,900.00
Electronics $1,850.00
Jewelry $5,000.00
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A;_ AL-a
Sterling G S8ri8Challlt
Deputy
Firearms - .25 cal pistol $300.00
Mise items $3,500.00
Total Value: $28,550.00 $28,550.00
Co-owners: None
Decedent's interest: 100%
3. MOTOR VEHICLES:
Vehicle #1
Description: 2006 Hummer H3 (4x4)
YIN #: xxxxxxxxxxxxxx 109
Total.Yalue: $18,100.00 $18,100.00
Co-owners: None
Decedent's interest: 100%
Vehicle #2
Description: 2007 Honda Shadow Motorcycle
YIN #: xxxxxxxxxxxxxx977
~'
Total Value: $3,495.00 $3,495.00
~:~ Co-owners: None
`` Decedent's interest: 100%
·~
.·I 4.. CASH IN BANKS:
0
~ Account #1
l Institution: The GMS Group, LLC
N Account type: Brokerage Account
~ Account/CD No: xxx- xxx479
Q\ Total Value: $ 3,440.02 $3,440.02
Co-owners: None
Decedent's interest: 100%
Account #2
Instit~tion:The OMS Group, LLC
Account type: Brokerage Account
Account/CO No: xxx - xxxO 12
Total Value: $36,420.66 $36,420.66
Co-owners: None
Decedent's interest: I 00%
Account #3
Institution: The OMS Group, LLC
Account type: Brokerage Account
Account/CD No: xxx - xxxx28
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, T exas
AA4____.o
Sterling GO Senedlallll
Deputy
Total Value: $0 $0
Co-owners: None
Decedent's interest: 100%
5. SECURITIES: .
Security #1
Description: Devon Energy Corp., ENV # xxxxx Ill, 1984.75 shares
Total Value: On May 8, 2010 valued at $64.58/share $128,175. 16
Co-owners: None
Decedent's interest: 100%
TOTAL SEPARATE PROPERTY $661,169.22
LIST OF CLAIMS OWED TO ESTATE
No claims are due and owing to the Estate of Janet Foltyn McAfee, Deceased.
TOTAL VALUE OF ESTATE
The total value of the Estate of Janet Foltyn McAfee, Deceased is $945,078.62.
The Independent Administratrix asks the Court that foregoing Inventory, Appraisement and
List of Claims be approved and entered of record.
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Confide ntial informa tion may have been r ed acted fr om the document in complia nce with the P ublic Infor mation Act.
A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Harris County, Texas
Deputy
Rosemary Foltyn
Independent Administratrix of the Estate of Janet
Foltyn McAfee, Deceased
21 0 Main Street
Richmond, TX 77469
Telephone: (281)341-1718
Facsimile: (281) 341-5517
STATE OF TEXAS §
COUNTY OF HARRIS §
I, Rosemary Foltyn, having been duly sworn, hereby state on oath that the said Inventory and
List of Claims are a true and complete statement of property and claims of the estate that have come
to my knowledge.
Rosemary Foltyn
Independent Administratrix of the Estate of Janet
Foltyn McAfee, Deceased
SWORN TO AND SUBSCRIBED BEFORE ME on this th~ay of ./Jur;d.
2011 by Rosemary Foltyn, to certify which witness my hand and seal of office.
·``~•
(.Y. ALICE MBROOI(S
NOTARY PUBLIC
v;;~.......,.l State of Texaa
··...~:.....· Comm. Exp, 07·11-a:t1lS
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
A_Ad
Str:~llng
_Q
G. Senechal 111
Deputy
No. 396935
IN THE ESTATE OF § IN THE PROBATE COURT
§
·JANET FOLTYN MCAFEE, § N0.1 _ _
§
DECEASED § HARRIS COUNTY, TEXAS
ORDER APPROVING INVENTORY, APPRAISEMENT & LIST OF CLAIMS
The foregoing Inventory, Appraisement and List of Claims of the above estate having been
filed and presented; there having been no objections made thereto; and the Court having considered
and examined the same, is satisfied that it should be approved.
IT IS THEREFORE ORDERED that the foregoing Inventory, Appraisement and List of
Claims is in all respects approved and ORDERED entered of record.
SIGNED on the _ _ day of _ _ _ _, 2011.
JUDGE PRESIDING
APPROVED AS TO FORM:
Carla K. Freeman
Attorney for Rosemary Foltyn,
Independent Administratrix of the Estate of Janet Foltyn McAfee, Deceased
21 0 Main Street
Richmond, TX 77469
Telephone: (281) 341-1718
Facsimile: (281) 341-5517
Confidential information may have been redacted from the document in complia nce with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Ha rris County, T exas
Deputy
Tab 17
Order on First Amended Motion
for Reconsideration of March 16,
20 15 Order Partially Releasing
Temporary Injunction, First
Amended Motion for Entry of
Order Releasing Social Security
Proceeds from Injunction and
Motion for Sanctions
No. 396,935 ..-1-l;o I
IN THE ESTATE OF § IN THE PROBATE COURT
§
JANET FOLTYN MCAFEE, § N0.1
,.... §
0 DECEASED § HARRIS COUNTY, TEXAS
lO
ORDER ON FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 16,
2015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION, FIRST
Ul
AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY
0 PROCEEDS FROM INJUNCTION AND MOTION FOR SANCTIONS
t~
0 CAME ON THIS DAY, Charles Storer, Agent under a Power of Attorney from Kenneth
C•l
U1
() McAfee's, First Amended Motion for Reconsideration of March 16, 2015 Order, First Amended
Motion for Entry of Order Releasing Social Security Proceeds from Injunction, and Motion for
Sanctions, and after considering the pleadings on file, the Responses thereto, the arguments of
counsel, and the evidence and testimony submitted to the Court, the Court finds that Charles
Storer did not prove the characterization of the property at issue by clear and convincing
evidence, and thus, the relief requested in Storer's Motion should be DENIED.
IT IS THEREFORE ORDERED that Charles Storer's Motion for Sanctions is denied;
and it is further
__ ORDERED that the previous ruling is upheld until Charles Storer provides clear
and convincing evidence of the separate nature of the commingled funds held at Woodforest
National Bank; or
';J'i:ft/ 1 ORDERED that the Woodfore!!_t``tional Bank account funds are ~o be released to
lM:a! -5Cf'e:,i!- ~OY\CJ ~J:. cJe..w:.,+
Charles Store~! ~:ovided that .$34,898.58 of the account funds llfll ilape!it~ into the ;.e~istry of fL
{XJ-'f-UO\Q... -b ~ ~ `` 1-\D..rr;s,. Qo\M'"l-h.j L.:..lQ.f'L!Ol
the Court~until the nature of two deposits at issue has been determined. ~ I.,I..A.e. ~
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dJ1 J~ FD l t'f~\ V~Ac.ftrJ-a,
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Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas
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41'- !~-
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_ _.Deputy
Summer Lea Willette
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Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas
------;~
``~+"'<=tJJI'-LIIWJ~
i/ltJJi
~_Deputy
Summer Lea Willette
APPROVED AS TO FORM:
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Mary izab t uf
0 Texas B r No. 06166880
tO 21 0 Main Street
Richmond, Texas 77469
Ul Tel. (281) 341-1718
Fax. (281) 239-7928
Attorneyfor Rosemary Foltyn,
Administratrix
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas
----'~
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.:..........!!._ Deputy
Summer Lea Willette
Tab 18
Application for Temporary
Restraining Order and
Temporary Injunction
- - · - - - - - · - - - - - - - - - - - - - - - - - - - - - - - - - - · -·- ..
...
PROBATE COURT 1
No. 396935
......... ~ ....... - ·-....·
~ ~
.
IN THE EST ATE OF § IN THE PROBATE COURT
§
JANET FOLTYN MCAFE.E, § N0.1
§
DECEASED § HARRIS COUNTY, TEXAS
...tftrtUIS7~TMTOWS
APPLICATION FOR
TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION t\ 0 () , f\.
- . . i·()n()c) 'od '< Y \J~ tS
TO THE HONORABLE JUDGE OF SAID COURT: . · '\ ~ v J '
. .
ft~r.~ tc.ot"' . .
. NOW COMES Rosemary Foltyn, Administrator for the Estate of Janet Foltyn McA'eb~ \\QJ
("Applicant"), and files this Application for Temporary Restraining Order and Temporary Q~tkn ....
against Kenneth McAfee, ("Respondent") herein, and in support thereof, show the court the
following:
I PARTIES AND SERVICE
I. . Respondent, 'kenneth McAfee, an Individual who is a resident of Tex~, may be
sery~d with process at his hom~ at the followi~:7ress : 2119 Tangley Street, Houston, Texas
77005; or if he remains incarcerated, through the Harris County Sheriff's Department at: 1200 Baker
Street, Houston, Texas 77002, SPN 00883964. Service of said Defendant as described above can be
effected by personal delivery at either location, or wherever he may ·be found.
FACTS
2. Decedent, Janet Foltyn McAfee, died on May 8, 2010, at Houston, Harris County,
Texas, at the age of 50 years. Decedent's domicile at the time of her death was Houston, Harris
County, Texas. Respondent is alleged to have killed Decedent. An Application to Probate Will was
filed by Rosemary Foltyn on May 24, 2010. In addition, a wrongful death suit was filed by the heirs
of the Estate and the relatives of Janet Foltyn McAfee, in Harris County District Court:
U:\Ciients\FOLTYN, ROSEMARY\Applicationfor Temporary Restraining Order.r(/
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
--~
``~IJ
~ftJ~'N(=fM~--'Deputy
Summer Lea Willette
,.
3. Should Respondent be released from incarceration, assets of the estate, rightfully
belonging to the Community, and from which Respondent is prohibited by law and public policy
from inheriting, may be depleted by Respondent.
4. Unless Kenneth McAfee is immediately enjoined and restrained from use of the funds
belonging to the Estate of Janet Foltyn McAfee, Kenneth Mc.Afee will have the ability to depl~te the
assets of the estate.
ELEMENTS FOR INJUNCTIVE RELIEF
5. In light of the above described facts, Rosemary Foltyn, As Applicant for Independent
Administratrix, seeks to Probate the will of Janet Foltyn McAfee. The nature of the lawsuit is
Probate, with an additional wrongful death suit pending.
6. Rosemary Foltyn, As Applicant for Independent Administratrix, is likely to succeed
on the merits of this lawsuit because there is a necessity for administration of the estate, specifically
so that property can be transferred to the rightful heirs.
7. Unless this Honorable Court immediately restrains Kenneth McAfee, the Estate of
Janet Foltyn McAfee as well as Rosemary Foltyn and the remaining heirs of the Estate of Janet
..Foltyn McAfee will suffer immediate and irreparable injury, for which there is no adequate remedy
at law to give Rosemary Foltyn, As Applicant For Independent Administratrix, and the heirs of the
Estate ofJanet Foltyn McAfee complete, final and equal relief. More specifically, Rosemary Foltyn,
As Applicant for Independent Administratrix, will show the court the following:
A. The harm to Rosemary Foltyn, As Applicant For Independent Administratrix,
and the heirs of the Estate. of Janet Foltyn McAfee is imminent because Kenneth McAfee has
the ability, as husband of the decedent, to deplete the assets of the Estate of Janet Foltyn
McAfee, and Kenneth McAfee would benefit from his alleged wrongful conduct.
U:\Clients\FOLTYN, ROSEMARY\Applicationfor Temporary Restraining Order. rtf
Confidential information may have been r edacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Har ris County, Texas
B. This imminent harm will cause Rosemary Foltyn, As Applicant For
Independent Administratrix, and the heirs of the Estate of Janet Foltyn McAfee irreparable
injury in that funds will not be available to the Estate for proper distribution.
C. There is no adequate remedy at law which will give Rosemary Foltyn, As
Applcan For Independent Administratrix, and the heirs of the Estate of Janet Foltyn McAfee
complete, final and equal reliefbecause Kenneth McAfee has the ability, as husband of the
decedent, to deplete the assets of the Estate of Janet Foltyn McAfee, and Kenneth McAfee
would benefit from his alleged wrongful conduct.
BOND
8. Rosemary Foltyn, As Applican For Independent Administratrix, is willing to post a
nominal temporary restraining order bond and request the court to set such bond.
REMEDY
9. Rosemary Foltyn, As Applicant For Independent Administratrix, has met her burden
by establishing each element which must be present before injunctive rel!ef can be granted by this
court, therefore Rosemary Foltyn, As Applicant For Independent Administratrix, is entitled to the
requested temporary restraining order.
10. Rosemary Foltyn, As Applican For Independent Administratrix, requests the court to
restrain Kenneth McAfee from use of any funds or property which rightfuJly belongs to the Estate of
Janet Foltyn McAfee. Specifically, Kenneth McAfee is restrained from the use of the following
accounts and property:
a. Any accounts through OMS Group which are not the separate property of
Kenneth McAfee;
b. Any Compass Bank Accounts;
U:\C//ents\FOL7YN. ROSEMARY\Applicationfor Temporary Rellra/nlng Order. rtf
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
_-- -~
=:. .-------.:....--IL-!-
~ft;_'f/(_
M_ _Deputy
Summer Lea Willette
. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- ____ .. , _, "- .
c. Any Laredo Accounts;
d. Any Wells Fargo Accounts;
e. Any Citizens' Bank Accounts;
f. Pershing c/o Harland Ics Account; and
g. Any community property or separate property of Janet Foltyn McAfee.
11. It is essential that the court immediately and temporarily restrain Kenneth McAfee,
from the use of the listed accoll.nts and property. It is essential that the court act immediately, pnor
to giving notice to Kenneth McAfee and a hearing on the matter because the ability to deplete the
assets of the estate e:xists.
12. In the alternative, should the court not wish to grant a Temporary Restraining Order,
Rosemary Foltyn as Applican For Independent Administratrix of the Estate of Janet Foltyn ~cAfee
respectfully requests the Court to order a Constructive Trust over the aforementioned Assets_
13. In order to preserve the status quo during. the pendency of this action, Rosemary
Foltyn requests that Kenneth McAfee be temporarily enjoined from use of the accounts and property
as described herein.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Rosemary Foltyn, As Applican For
Independent Administratrix, Applicant herein, respectfully prays that:
A. Kenneth McAfee, Respondent, be cited to appear and answer herein;
B. A temporary restraining order will issue without notice to Kenneth McAfee,
restraining Kenneth McAfee, and his officers, agents, servants, employees, agents, servants,
successors and assigns, and attorneys from use of the accounts and property described herein;
C. The Court sets a reasonable bond for the temporary restraining order;
U:\Ciient$IFOLTYN, ROSEMARY\Applicationfor Temporary Restraining Order.rtf
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
D. The Court order a Constructive Trust over the aforementioned assets;
E. ,f\fter notice and hearing, a temporary injunction will issue enjoining and
restraining Kenneth McAfee, his officers, agents, servants, employees, successors and
assigns, and attorneys from direct or indirect use of the accounts and property described
herein;
F. For such other and further relief, in law or in equity, to which Applicant may
be justly entitled.
Respectfully submitted,
Mitchel & Duff, LLC
By:````````~---------­
Mary El' abeth
Texas ar N '. 06166880
Amy L. Mitchell
Texas Bar No. 12560500
Matthew F. Scholes .
Texas Bar No. 24056630
210 Main Street
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Richmond, TX 77469
Tel. (281 )341-1718
Fax. (281)341-5517
Attorney for Applicant
Rosemary Foltyn
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U:\C/ients\FOLTYN, ROSEMARY\Appllcationfor Temporary Res/raining Order.rtf
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
----.-.-:
~ ~-~--==-'VT'iM
r.'T =--_Deputy
Summer Lea Willette
VERIFICATION
STATE OF TEXAS §
§
COUNTY OF FORT BEND §
BEFORE ME, the undersigned authority, personally appeared Rosemary Foltyn, as Applican
For Independent Administr~trix of the Estate of Janet Foltyn McAfee who, on oath, stated that the
statements m~de in the foregoing Application for Temporary Restraining Order and Temporary
Injunction are true and correct.
~ · ~
R`` Applican For Independent
Administratrix of the Estate of Janet Foltyn McAfee
SUBSCRIBED AND SWORN TO BEFORE ME on this the~ day of J v (\..t..
2010, to certJfy which witness my hand and seal of office.
.:.) <
~;.
.. . ,. .. -: • ••. • • ~· ~ · ,-c .. . -
''
U:lCiients\FOLTYN, ROSEMtiRYIAppllcationfor Temporary Restraining Order. rtf
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
-----Y~
~.``~
ftJ"'=
·~-,Deputy
Summer Lea Willette
No. 396935
IN THE ESTATE OF § IN THE PROBATE COURT
§
JANET FOLTYN MCAFEE, § N0.1
§
DECEASED § HARRIS COUNTY, TEXAS
AFFIDAVIT IN SUPPORT OF
ROSEMARY FOLTYN'S APPLICATION FOR TEMPORARY RESTRAINING ORDER
BEFORE ME, the undersigned authority, personally appeared Rosemary Foltyn, as Applican
For Independent Administratrix of the Estate of Janet Foltyn McAfee, who being duly sworn,
deposed as follows:
"My name is Rosemary Foltyn. I am at least 18 years of age and of sound mind. I am
personally acquainted with the facts alleged herein.
"kenneth McAfee was married to Janet Foltyn McAfee at the time of her death on May 8,
20 10. Kenneth McAfee was arrested by the Houston Police Department, and charged with the
murder of Janet Foltyn McAfee. Kenneth McAfee is currently incarcerated for that charge, pending
a trial. Kenneth McAfee may soon make bail and be released from custody. Ifhe is not restrained
from using any of the accounts and property listed in the Application for Temporary Restraining
Order and Temporary Injunction, the assets of my daughter's estate will be depleted. I have filed an
Application to Probate a Holographic Will and For Issuance ofLetters of Administration P.ursuantto
Section 145(d) of the Texas Probate Code at the request of the heirs of the Estate, myself and Jake
Foltyn so that my daughter's property can be distributed· in accordance with her wishes."
"Further affiant sayeth not."
Rosemary Folt , as Applican or Independent
Administratrix of the Estate of Janet Foltyn McAfee
U:\CIIentJ\FOLTYN. ROSEMARY\Applicationjor Temporary Restraining Order.rtj
Confidential infor mation may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Har ris County, Texas
----=-
~ ---=----.. ~t.J
l!. . :. ·_W'i_
M_ _.Deputy
Summer Lea Willette
SUBSCRIBED AND SWORN TO BEFORE ME on`` iJJic> , by J?a~IFPN:f~.
. . Af~ q.J:W2
e MARY EUZABEni DUFF DROZD
Notary Public, Stat& ofT8X811
Commission Explree 03-13-2013
Notary:t2:state of Texas
U:\Ciients\FOLITN, ROSEMARY\Applicationfor Temporary Restraining Order.rlf
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
S·Jmmer Lea Willette
. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --- -·--·-·- - ·---... .
No.396935
IN THE ESTATE OF § IN THE PROBATE COURT
§
JANET FOLTYN MCAFEE, § N0.1
§
DECEASED § HARRIS COUNTY, TEXAS
TEMPORARY RESTRAINING ORDER
O n - - - - - - - - - - ' 20 I 0, the Application for a Temporary Restraining Order
of Rosemary Foltyn, ~s Applican For Independent Administratrix of the Estate of Janet Foltyn
McAfee was heard before this court.
Based upon the pleadings, records, documents filed by counsel, and the arguments ofcounsel
at the hearing, IT CLEARLY APPEARS:
A. That unless Kenneth McAfee is immediately restrained from the use ofthe following
accounts and property:
a. Any accounts through GMS Group which are not the separate property of
Kenneth McAfee;
b. Any Compass Bank Accounts;
c. Any Laredo Accounts;
d. Any Wells Fargo Accounts;
e. Any Citizens' Barik Accounts; and
f. Pershing c/o Harland Ics Account; and
g. Any community property or separate property of Janet Foltyn McAfee.
that Kenneth McAfee will commit the foregoing before notice and a hearing on Rosemary Foltyn's
Application for Temporary Injunction.
B. Rosemary Foltyn, as Applican For Independent Administratrix of the Estate of
U:\Ciients\FOLTYN, ROSEMARY\Applir:ationjor Temporary Restraining Order. rtf
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
``ftl'iillllll
------~s~um;~TI.,~r,ft
e~. r
Le~a~vvvimll~en~e
~___Deputy
. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -·- --
t • 1 l
Janet Foltyn McAfee and the other heirs of the Estate of Janet Folt)rn McAfee will suffer
irreparable hann if Kenneth McAfee is not restrained f:Tom the use of the foregoing property
. imm~diately because he will deplete the assets of the Estate of Janet Foltyn McAfee and
there is no adequate remedy at law to grant Rosemary Foltyn, as Applican For Independent
Administratrix of the Estate of Janet Foltyn McAfee and the other heirs of the Estate ofJanet
~altyn McAfee complete, final and equal relief.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Kenneth McAfee and
all of his officers, agents, servants, employees, agents, servants, successors and assigns, and attorneys
are ORDERED to immediately cease and desist from the use of the following accounts and property:
a. Any accounts through GMS Group which are not the separate property of
Kenneth McAfee;
b. Any Compass Bank Accounts;
c. Any Laredo Accounts;
d. Any Wells Fargo Accounts;
e. Any Citizens' Bank Accounts; and
f. Any community property or separate property of Janet Foltyn McAfee,
from the date of entry of this order until twenty (20) days thereafter, or until further order of this
Court.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that a Constructive Trust is
issued over the aforementioned assets.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Rosemary Foltyn's, as
.Applican For Independent Administratrix of the Estate of Janet Foltyn McAfee Application for
Temporary Injunction be heard on _ _ __ _ _ at :00 _M in the courtroom of Probate
U:\CIIents\FOLTYN, ROSEMARY\Applicalionfor Temporary Restraining Order.rif
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
_ ____,_~
``~-t"-'¥
ru-'iiJldu
-"-"-"'~_D. eputy
~>umm er Lea Willette
.'
Court# I of Harris County, Texas. Kenneth McAfee is commanded. to appear at that time and show
cause, if any exist, why a temporary injunction should not be issued against him.
The clerk ofthe.above-entitled court shall issue a temporary restraining order in confonnity
with the law and the terms of this order upon the filing by Rosemary Foltyn of the bond hereinafter
set.
This order shall not be effective until Rosemary Foltyn, as Applican For Independent
Administratrix of the Estate of Janet Foltyn McAfee deposits with the Clerk, a bond in the amount o~
$_ _ _ _ _ _ in conformity with the law.
SIGNED and ENTERED on at _ _ _.M.
PRESIDING JUDGE
THIS 1NSTfHJMENT R~TUR````
UNSlGNf.O UV .JUDGES OF
... ·' --· ~ ·"· ·
U:\CIIems\FOLTYN, ROSEMARY\Applical/onjor Temporary Restraining Order. rtf
Confidential information may have been redacted from the document in compliance with the Public Information Act.
A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
-----=-~
------=-=-.i·,?t. .le-.;
!.--=--V{(__ _ _D.eputy
Summer Lea Willette