Ernest Ray Koonce v. Wells Fargo Bank, N.A., as Trustee Under the Pooling and Servicing Agreement Dated as of April 1, 2005, Asset Backed Pass-Through Certificates, Series 2005-WHQ2 ( 2015 )

ACCEPTED
01-15-00228-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/7/2015 12:00:00 AM
CHRISTOPHER PRINE
CLERK
FILED IN
No. 01-15-00440-CV and 01-000228-CV
1st COURT OF APPEALS
HOUSTON, TEXAS
9/8/2015 9:23:00 AM
________________________________________________________________
IN THE FIRST DISTRICT COURT OF APPEALS CHRISTOPHER
OF TEXAS
Clerk
A. PRINE
________________________________________________________________
IN RE ERNEST R. KOONCE, RELATOR
________________________________________________________________
Original Proceeding from the 127th Judicial District Court of Harris
County
Cause No. 2010-64752
__________________________________________________________________
MOTION FOR EXTENSION OF TIME IN WHICH TO FILE A BRIEF
AND/OR REPLY BRIEF AND REPLY FOR WRIT OF MANDANMUS
ERNEST R. KOONCE
Pro Se
15938 Fleetwood Oaks Drive
Houston, Texas 77079
Tel: (832) 434-3183
Fax: (832) 328-7171
rayk469@gmail.com
No. 01-15-000228 and 01-15-00440
________________________________________________________________
IN THE THIRD FIRST COURT OF APPEALS OF TEXAS
________________________________________________________________
IN RE ERNEST R. KOONCE, RELATOR
________________________________________________________________
Original Proceeding from the 127th Judicial District Court of Harris
County, Texas
Cause No. 2010-64752
__________________________________________________________________
REPLY PETITION FOR WRIT OF MANDAMUS
ERNEST R. KOONCE
RELATOR, Pro Se
15938 Fleetwood Oaks Drive
Houston, Texas 77079
Tel: (832) 434-3183
Fax: (832) 328-7171
rayk469@gmail.com
TO THE HONORABLE COURT OF APPEALS OF TEXAS:
Ernest R. Koonce, Relator, and those similarly situation,
respectfully submit this his motion for an extension of time in
which to file a brief/reply brief and reply to Mandamus, and would
show the Court as follows:
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IDENTITY OF PARTIES AND THEIR COUNSEL
Relator, Ernest R. Koonce, hereby certifies that the following are the
list of parties and their respective counsel, if any, to the best of his
knowledge and understanding of the rules.
PARTIES COUNSEL
Relator
ERNEST R. KOONCE Pro Se
15938 Fleetwood Oaks Drive
Houston, Texas 77079
Tel: (832) 434-3183
Fax: (832) 328-7171
rayk469@gmail.com
Respondent
HONORABLE RK SANDILL 127thth Civil District
Court of Harris County, TX
201 Caroline, 10th Floor
Houston, Texas 77002
Court Phone Number:
(713) 368-6161
Chris Daniels 201 Caroline
Harris County District Clerk Houston, Texas 77002
Real Party in Interest:
WELLS FARGO BANK, NA Bradley Chambers
Texas Bar No. 2400186
Valerie Henderson
Texas Bar No. 24078655
Baker, Donelson,
Bearman,
Caldwell & Berkowitz,
P.C.
1301 McKinney Street
3
Suite 3700
Houston, Texas 77010
Tel: (713) 650-9700
Fax: (713) 650-9701
vhenderson@bakerdonelson.com
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BACKGROUND
The first lawsuit was resolved by summary judgment and that
case was appealed to this Court under Case No. 01-10-000194-CV,
In that case, Wells Fargo sworn via affidavit that two assignments
dated March 23, 2009, where true and correct copies of the
originals, and the Court granted summary judgment in Wells
Fargo’s favor, and this Court affirmed. Six years later, Wells Fargo
is now claiming that assignments dated February 17, 2004 are the
true and correct assignments. Not only does this clearly
demonstrate a fraud upon the trial court and his court, but Wells
Fargo never has and never will be the owner and holder of
Applicant’s mortgage. Failure to properly securitize the mortgage
renders the transaction void.
On February 13, 2015, Applicant filed his Motion for
Accelerated Appeal in the 127th District Court. This motion was set
for submission on February 23, 2015 and was finally denied on May
11, 2015. Applicant filed Petition and/or in the Alternative, Writ of
Mandamus on March 11, 2015 in the First Court of Appeals. This
was filed as one document. However, the Court subsequently split
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the case on May 15, 2015, and Applicant paid a second filing fee
per the Court’s instructions.
On August 5, 2015, Applicant received a notice from the Court
regarding what Applicant thought was a reply deadline.
MOTION FOR EXTENSION OF TIME
Applicant called the clerk’s office several times, including
approximately 10 days ago to verify when the Petition was due. He
was advised it was due September 5, 2015. Last week, on Friday,
September 4, 2015, Applicant’s daughter called the clerk to verify
when it was due. The clerk originally stated September 5, 2015.
Applicant’s daughter asked if that meant it was actually due on
Tuesday since the 5th was the weekend and Monday is a holiday
i.e., labor day. The clerk initially said yes. Upon further review, the
clerk stated that the brief, not a reply, was past due that it was
actually due August 26, 2015, eight (8) days earlier. There had
obviously been some confusion and mistakes earlier by both
Applicant and the clerk. This mistake appears to be mutual.
Applicant did not intentionally miss the deadline, but rather,
was mistaken about when it was actually due. There’s also
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confusion as to whether a brief is due or a reply is due for the
accelerated appeal.
Applicant planed on filing a reply to both the Mandamus and
Wells Fargo’s response brief, but inadvertently missed the deadline.
No harm and no bad faith intention has occurred, and Wells
Fargo is in no way prejudiced by an extension; however, Applicant
will be if none is granted.
There are many misleading statements made by Wells Fargo
that need to be addressed. Not allowing Applicant to file a reply to
Wells Fargo’s response would be a miscarriage of justice. Wells
Fargo has already gotten away with falsifying documents, and has
repeatedly refused to produce relevant documents throughout the
entire litigation. As the Court can see by Applicant’s original, Wells
Fargo has routinely made false statements to the Court,
manipulated facts, taken gross advantage of a pro se litigant which
has not served the interests of Justice. Wells Fargo has received
blatant favoritism in both the state and federal courts, which has
and continues to violate Applicant’s due process rights. The federal
court refuses to provide timely notice of hearings.
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Applicant was also advised by the clerk’s office that his
appendix had been rejected in its entirety because of lack of tabs.
Applicant did not have a program to create tabs. However, he
subsequently found one and has had a difficult time trying to create
the tabs, and this distraction is part of the reason for missing the
deadline and confusion about actual date of the deadline, as well as
Applicant’s health. Applicant is a 74 year old Air Force veteran, and
is tired and not in the best of health.
PRAYER
Wherefore, Applicant prays that this Court clarify if an actual
brief or a reply brief is due, after that determination is made grant
him an extension of time in which to file the brief and reply to the
Writ of Mandamus to ensure that Applicant has a reasonable
amount of time, with a clear date in which to reply, and that Justice
serves Justice, and for such other and further relief as the Court
may deem just and proper.
Word Count per computer: 733
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MEET AND CONFER
On September 4, 2015, Applicant contacted Respondent via
email and advised her that this motion would be filed. In Ms.
Henderson’s typical, uncooperative and unprofessional manner, she
stated she was opposed. Although Applicant has accommodated
Ms. Henderson on several occasions and has acted professionally,
Ms. Henderson continues to refuse to extend any sort of
professional courtesy.
Respectfully submitted on this 5th day of September, 2015.
/s/ Ernest Ray Koonce
Ernest Ray Koonce
CERTIFICATE OF SERVICE
Pursuant to Rule 9.5 of the Texas Rules of Appellate Procedure, a
true and correct copy of the foregoing document has been sent to
the following via efiling; additionally, the 127th District Clerk was
advised via telephone that this Mandamus was being filed:
Bradley Chambers
Texas Bar No. 2400186
Valerie Henderson
Texas Bar No. 24078655
Baker, Donelson, Bearman,
9
Caldwell & Berkowitz, P.C.
1301 McKinney Street
Suite 3700
Houston, Texas 77010
(713) 650-9700 – Telephone
(713) 650-9701 – Facsimile
vhenderson@bakerdonelson.com
/s/ Ernest Ray Koonce
Ernest Ray Koonce
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