Chris Rodriguez v. US Home Ownership LLC ( 2015 )

ACCEPTED
04-15-00347-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
6/23/2015 3:45:11 PM
KEITH HOTTLE
CLERK
No. 04-15-00347-CV
IN THE COURT OF APPEALS
FILED IN
FOR THE FOURTH JUDICIAL DISTRICT 4th COURT OF APPEALS
SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS
________________________________________________________________________
06/23/2015 3:45:11 PM
KEITH E. HOTTLE
CHRIS RODRIGUEZ AND ANN MARIE RODRIGUEZ, Clerk
Appellants
v.
US HOME OWNERSHIP, LLC
Appellee
________________________________________________________________________
APPELLEES’ MOTION TO DISMISS FOR LACK OF JURISDICTION
________________________________________________________________________
TO THE HONORABLE FOURTH COURT OF APPEALS:
NOW COMES Appellee US Home Ownership, LLC and files this its Motion to
Dismiss for Lack of Jurisdiction and respectfully shows as follows:
A. INTRODUCTION
1. Chris Rodriguez and Ann Marie Rodriguez are the Appellants.
2. US Home Ownership, LLC is the Appellee.
3. This is an appeal of a Default Order signed by the trial court on May 6, 2015,
granting Appellee’s Application for Expedited Order for Foreclosure pursuant to Texas Rule
of Civil Procedure 736. (CR 57-59; 62-63).
4. Appellee would respectfully show herein that this honorable Court lacks
jurisdiction because, by the express provisions of Texas Rule of Civil Procedure 736, an
order granting an application filed pursuant to Rule 736 is not subject to appeal.
Tex.R.Civ.P. 736.8(c). Accordingly, the instant appeal should be dismissed for want of
jurisdiction.
B. FACTS AND ARGUMENT
5. Appellee brings this Motion to Dismiss pursuant to Texas Rules of Appellate
Procedure 10 and 42.3(a).
6. On January 30, 2015, Appellee, US Home Ownership, LLC, as Petitioner in
the trial court, filed its Application for an Expedited Order Under Rule 736 on a Home
Equity, Reverse Mortgage, or Home Equity Line of Credit. (CR 1-34).
7. On March 31, 2015, Appellee, US Home Ownership, LLC, as Petitioner in the
trial court, filed its Motion for Rule 736 Default Order Allowing Rule 736 Foreclosure of
Home Equity Lien Without Hearing Under Tex. R. Civ. P. 736.7. (CR 41-49).
8. On May 6, 2015, the trial court signed the Default Order granting Appellee’s
Application for Expedited Order for Foreclosure pursuant to Texas Rule of Civil Procedure
736. (CR 57-59).
9. On June 4, 2015, Appellant Chris Rodriguez filed a Notice of Appeal. (CR
62-63). Ann Marie Rodriguez did not join in and is not included in the Notice of Appeal.
(CR 62-63). In the Notice of Appeal, Appellant Chris Rodriguez gives notice of his intent
to appeal “the trial court’s judgment rendered on 5-6-15.” (CR 62).
10. Accordingly, Appellant Chris Rodriguez has appealed to this honorable
Fourth Court of Appeals the Default Order signed by the trial court on May 6, 2015,
granting Appellee’s Application for expedited order for foreclosure pursuant to Texas Rule
of Civil Procedure 736. (CR 57-59; 62-62).
11. Texas Rule of Civil Procedure 736.8(c) states as follows:
An order granting or denying the application is not subject to a motion for rehearing,
new trial, bill of review, or appeal. Any challenge to a Rule 736 order must be made
in a suit filed in a separate, independent, original proceeding in a court of competent
jurisdiction.
12. This honorable Court lacks jurisdiction over the instant appeal because, by
the express provisions of Texas Rule of Civil Procedure 736, an order granting an
application filed pursuant to Rule 736 is not subject to appeal. Tex.R.Civ.P. 736.8(c). Any
challenge to a Rule 736 order must be made in a separate suit filed in a court of competent
jurisdiction. Id. Accordingly, this honorable Court has no discretion to do anything but
dismiss an attempted appeal from a Rule 736 order. Grant-Brooks v. FV 1, Inc., 176
S.W.3d 933, 933 (Tex.App.-Dallas 2005, pet. denied); Hunter v. Bank of New York Mellon,
2015 WL 1736341 (Tex.App.-Hous.(14th Dist.) 2015, no pet.). Appellee hereby requests
that the instant appeal be dismissed in its entirety for want of jurisdiction.
C. CONCLUSION AND PRAYER
13. For the reasons set forth herein above, Appellee respectfully requests: (1)
that the instant appeal be dismissed in its entirety for want of jurisdiction; (2) that Appellee
be awarded its costs; and (3) that Appellee be awarded such other and further relief to
which it may be justly entitled.
Respectfully submitted,
MC NELIS + WINTER , PLLC
143 W. Sunset Road, Suite 200
San Antonio, Texas 78209
Telephone: (210) 826-2440
Facsimile: (210) 826-2451
By: /s/ West W. Winter
West W. Winter
State Bar No. 24008291
west@mcneliswinter.com
ATTORNEYS FOR APPELLEE
CERTIFICATE OF CONFERENCE
I, the undersigned counsel for Appellee, hereby certify that I have conferred with
Appellant CHRIS RODRIGUEZ about the merits of the instant Motion, and I have determined
that he is opposed to Appellees’ Motion to Dismiss For Lack of Jurisdiction.
/s/ West W. Winter
West W. Winter
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was served upon
all parties and/or counsel as listed below, on this the 23rd day of June, 2015:
Mr. Chris Rodriguez Via First Class Mail and
Mrs. Ann Marie Rodriguez Certified/Return Receipt Requested
226 Forest Valley Drive Article #7012 3460 0000 1913 0135
San Antonio, Texas 78227
Ms. Yanira M. Reyes Via Email:
Harrison & Duncan, PLLC hdlaw@legalcounseltexas.com
8700 Crownhill, Suite 505
San Antonio, Texas 78209
/s/ West W. Winter
West W. Winter