Robert Robinson v. Wells Fargo Bank, N.A.

TWELFTH COURT OF APPEALS
Case Number: 12-14-00212-CV
On Appeal from the Cherokee County Court-at-Law No. CV9282
Robert Robinson
v.
Wells Fargo Bank, N.A.
Reply Brief of the Appellant
Robert Robinson, Pro Se
Appellant
16897 Pine Lane
Flint, Texas 75762
(903) 245-0908
cilantro518@yahoo.com
TWELFTH COURT OF APPEALS
Case Number: 12-14-00212-CV
On Appeal from the Cherokee County Court-at-Law No. CV9282
Robert Robinson
v.
Wells Fargo Bank, N.A.
Reply Brief of the Appellant
Robert Robinson, Pro Se
Appellant
16897 Pine Lane
Flint, Texas 75762
(903) 245-0908
cilantro518@yahoo.com
Table of Contents
I. Table of Authorities 2
II. Introduction 5
III. Trustee's Deed is inadmissible 6
IV. "Boat already sailed" on deemed admissions 8
V. No evidence of privity between Kenneth W. Houston and Wells Fargo
Bank 11
VI. Well's Fargo's "no assignment needed" suggestion is a hoax 13
VII. Wells Fargo claims forcible detainer is a judicial proceeding that bars
interposition of constitutional claims (Brief of the Appellee at 21) 17
VIM. Appellee's bald assertion that "THERE WAS NO FABRICATION OF ANY
EVIDENCE BY WELLS FARGO" does not comply with TRAP 38.1 19
IX. Appellant's motion for sanctions is ripe for decision 21
X. No Remorse 21
XI. Conclusion and Prayer for Relief 24
Signature 25
Certificate of Service 25
Certificate of Word Count 26
1 I Page
I. Table of Authorities
Cases
Austin Nursing Ctr., Inc. v. Lovato, 111 S.W.3d 845, 848 (Tex.2005) 15
Bexar County v. Stewart, 41 S.W.2d 85 - 1931 9
Boiling v. FARMERS BRANCH INDEPENDENTSCH., 315 S.W.3d 893 - Tex: Court of
Appeals, 5th Dist 5
Boone v. TEXAS EMPLOYERS'INS. ASS'N, 790 S.W.2d 683, 688 - Tex: Court of
Appeals, Tyler 1990 8
Canton-Carter v. Baylor College of Medicine, 271 S.W.3d 928, 931 - Tex: Court of
Appeals Houston (14th Dist) 2008 5, 6, 20
Chambers v. Nasco, Inc., 501 U.S. 32, 51 - Supreme Court 1991 20, 21
DALLAS ANESTHES. v. Texas Anesthesia Group, 190 S.W.3d 891, 895 - Tex: Court of
Appeals, 5th Dist 5
Davila v. World Car Five Star, 75 S.W.3d 537, 543 - Tex: Court of Appeals, 4th Dist.
2002 21
De La 0 v. Housing Authority of City of ElPaso, 417 F.3d 495, 501 - Court of
Appeals, 5th Circuit 2005 13
Gleason v. Taub, 180 S.W.3d 711, 713 (Tex.App.-Fort Worth 2005, pet. denied)
15
House v. Houston Waterworks Co., 88 Tex. 233, 31 S.W. 179, 179 (1895)
15
IN RE CARRSOW-FRANKLIN, Case No. 10-20010 (RDD). Bankr Court, SD New York
January 28, 2015 10,16
Lawton v. State, 913 S.W.2d 542, 554 (Tex.Crim.App.1995)' 6
Mansfield State Bank v. Cohn, 573 S.W.2d 181,184-185 - Tex: Supreme Court
1978 7
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Marshall v. Vise, 767 S.W.2d 699, 700 - Tex: Supreme Court 1989 7
McGlothlin v. Kliebert, 672 S.W.2d 231, 232 - Tex: Supreme Court 1984 10,
18
MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 651 (Tex.1999)
15
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) 11
Michel v. State, 350 U.S. at 99, 76 S.Ct. at 163 18
Minnick v. State Bar of Texas, 790 SW 2d 87,89 - Tex: Court of Appeals, 3rd Dist.
1990 18
Miller v. Homecomings Financial, LLC, 881 F. Supp. 2d 825, 832 - Dist. Court, SD
Texas 2012 11,12
Mitchell v. Citifinancial Mortg. Co., 192 S.W.3d 882 - Tex: Court of Appeals, 5th
Dist. 2006 13,14
Moore v. Sims, 442 U.S. 415, 426 (1979) 17,18
Mortgage Electronic Registration Systems v. Knight, No. 09-04-452 CV, 2006 WL
510338, (Tex.App-Beaumont March 2, 2006, no pet.) (mem. op) 14
Musicus v. Westinghouse Elec. Corp., 621 F.2d 742, 744 - Court of Appeals, 5th
Circuit 1980 21
Pennzoil Co. v. Texaco Inc., 481 U.S. 1,14 (1987) 18
Powelson v. US BANK NAT. ASS'N, 125 S.W.3d 810, 811 - Tex: Court of Appeals, 5th
Dist. 2004 14
Rodriguez v. CITIMORTGAGE, INC., Tex: Court of Appeals, 3rd Dist.
2011 13
Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584, 593-594 (Dec. 10, 2013)
19
Texaco, Inc. v. Pennzoil, Inc. 729 S.W.2d 768, 856-58 (Tex.App. 1987, writ denied)
18
Texas Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000) 7
3 | Page
United States Fidelity & Guar. Co. v. Goudeau, 272 S.W.3d 603, 611 - Tex: Supreme
Court 2008 7
Wade v. COM'N FOR LAWYER DISCIPLINE, 961 S.W.2d 366, 377 - Tex: Court of
Appeals 1997 17
West v. Brenntag Sw., Inc., 168 S.W.3d 327, 334 (Tex.App.-Texarkana 2005, pet.
denied) 15
Will. v. Eggleston, 170 U.S. 304, 309,18 S. Ct. 617, 42 L. Ed. 1047 (1898)
15
Younger v. Harris, 401 U.S. 37 (1971) 17
Statutes and Rules
TEX. LOC. GOV'T CODE ANN. § 192.007(a) 12
TRAP 38.1, 38.2 5,20
Texas Rule of Civil Procedure TRCP 192.3(a) 10
Texas Rules of Evidence Rule 406 10
MERS Rules
MERSCORP, INC. RULES OF MEMBERSHIP; REQUIRED ASSIGNMENTS FOR
FORECLOSURE & BANKRUPTCY 11, 12
Newspaper Articles
"JPMadoff Chapter 7 Asks Jamie Dimon, 'At Long Last, Have You Left No Sense
of Decency?'"; Forbes; 2/05/2015; by Laurence Kotlikoff 16,17, 22, 23
Judge faults Wells Fargo in 'shocking'foreclosure; Boston Globe; AP March 9,
2014 21
NYFederal judge slams Wells Fargo forforged mortgage docs; New York Post;
January 31, 2015; by Catherine Curan 21
4 | Pa g e
II. Introduction
Texas Rules of Appellate Procedure do not contemplate that an appellee's brief
can simply dodge an appellant's issues by refusing to address them. "Only when
we are provided with proper briefing may we discharge our responsibility to
review the appeal and make a decision that disposes of the appeal one way or the
other." Boiling v. FARMERS BRANCH INDEPENDENT SCH., 315 S.W.3d 893 - Tex:
Court of Appeals, 5th Dist. See also TRAP 38.2(a)(2): ("When practicable, the
appellee's brief should respond to the appellant's issues or points in the order the
appellant presented those issues or points").
Also, with limited exceptions which do not apply to this point, 38.1 and
specifically 38.1(i) apply equally to the appellee. See TRAP 38.2(a)(1): "An
appellee's brief must conform to the requirements of Rule 38.1". See also DALLAS
ANESTHES. v. Texas Anesthesia Group, 190 S.W.3d 891, 895 - Tex: Court of
Appeals, 5th Dist. (38.1(f) applies to appellee under 38.2(a)(1)).
Thus, when 38.1(i) requires "a clear and concise argument for the contention
made with appropriate citations to authorities and the record", the appellee is
also subject to the requirement. "This requirement is not satisfied by merely
uttering brief, conclusory statements unsupported by legal citations." Canton-
5 | Pa g e
Carter v. Baylor College of Medicine, 271 S.W.3d 928, 931 - Tex: Court of Appeals
Houston (14th Dist) 2008.
Appellee's brief fails to specifically or adequately address any of Appellant's
issues, but rather vaguely asserts that the "only issue" provision of forcible
detainer law means that questions of judicial misconduct, attorney misconduct,
fabrication of evidence, and standing cannot be raised by a forcible detainer
defendant because such issues are "outside the scope" of forcible detainer.
Appellee doesn't even bother to deny that its trial counsel had a 1-hour private
meeting with the trial judge where the trial judge and counsel "went over the
case" in secret.
Because appellate courts are prevented from "advancing arguments on behalf of
either party" Lawton v. State, 913 S.W.2d 542, 554 (Tex.Crim.App.1995), the
Court should sustain Appellant's issues because Wells Fargo has effectively
conceded them.
III. Trustee's Deed is inadmissible
Throughout these proceedings and in the court below, Appellant has repeatedly
stated that in the court below, he objected to Wells Fargo's introduction of a
trustee's deed - a document which contradicts Wells Fargo's deemed admissions.
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(See "Appellant's Verified Motion to Disqualify Barrett, Daffin, Frappier, Turner &
Engel LLP and to Strike Wells Fargo's Pleadings" at 7). Now see Appellant's
"Response To Wells Fargo's Motion For Summary Judgment" CR 664: Trustee's
Deed "contradicts Wells Fargo's Deemed Admissions No's 9 and 10."
"Respondent objects to Wells Fargo's introduction of the putative trustee's
affidavit." (bold in original). This point is dispositive because as stated by the
Texas Supreme Court:
"Admissions produce two results: they relieve the requesting party's
burden of proving the admitted matter and prevent the admitting party
from disputing the same." United States Fidelity & Guar. Co. v. Goudeau,
272 S.W.3d 603, 611 - Tex: Supreme Court 2008. "An admission once
admitted, deemed or otherwise, is a judicial admission, and a party may not
then introduce testimony to controvert it." Marshall v. Vise, 767 S.W.2d
699, 700 - Tex: Supreme Court 1989. "We hold that a party waives the right
to rely upon an opponent's deemed admissions unless objection is made to
the introduction of evidence contrary to those admissions." Ibid.
Wells Fargo's Appellee's Brief continues to sing the song of the robo-signing banks
-that Texas' forcible detainer courts are rubber stamps for document fraud, but
no trustee's deed = no right to possession. See Texas Dep't ofTransp. v. Able, 35
S.W.3d 608, 617 (Tex. 2000). A successful challenge to a trial court's evidentiary
rulings usually requires the complaining party to demonstrate that the judgment
turns on the particular evidence excluded or admitted. See also Mansfield State
Bank v. Cohn, 573 S.W.2d 181, 184-185 - Tex: Supreme Court 1978: "There cannot
7 | Page
be two sets of procedural rules, one for litigants with counsel and the other for
litigants representing themselves."
Accordingly, Appellant objects to the following statements in Appellee's Brief:
"Wells Fargo presented valid, factually sufficient evidence to the Trial
Court" (p.9); "As evidenced by the Substitute Trustee's Deed, Wells Fargo
purchased the property at the non-judicial foreclosure sale held on May 5,
2009" (p.10); "A certified copy of the Trustee's Deed was filed as part of
and in support of Wells Fargo's Motion for Summary Judgment." (p.10);
"Appellant tendered discovery to Appellee that covered allegations outside
the scope of a forcible detainer lawsuit." (p.12); "THERE WAS NO
FABRICATION OF ANY EVIDENCE BY WELLS FARGO" (p.18); and "As the
signatory of the Note and Deed of Trust, only Houston would have been in
direct privity with Wells Fargo." (p.20).
IV. "Boat already sailed" on deemed admissions
In particular, the statements: "Appellant tendered discovery to Appellee that
covered allegations outside the scope of a forcible detainer lawsuit" and "THERE
WAS NO FABRICATION OF ANY EVIDENCE BY WELLS FARGO" appear to challenge
the deemed admissions, but that boat has already sailed.
In Boone v. TEXAS EMPLOYERS'INS. ASS'N, 790 S.W.2d 683, 688 - Tex: Court of
Appeals, Tyler 1990, this Court said:
"the trial judge may only permit withdrawal of deemed admissions when
the party seeking the same presents sufficient evidence to establish good
cause for his failure to make timely answers to the requested admissions,
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and then only if the court further finds that the withdrawals can be ordered
without causing undue prejudice to the party relying on the admissions,
and that the presentation of the merits of the action will be subserved by
the withdrawal." The court further stated "the burden of proof on all three
requirements" is on "the party seeking withdrawal." Id. at 689.
Wells Fargo was unable to meet its burden, but scheduled a hearing on a frivolous
motion to strike the deemed admissions (claiming that Wells Fargo "will not be
unduly prejudiced if the Court strikes the admissions" CR 432 ); conflated the
hearing with a motion for summary judgment and plea to the jurisdiction; did not
argue for withdrawal of admissions at the hearing; met privately with the trial
judge for an hour; and submitted a final order -which the judge signed- denying
the motion to strike the deemed admissions. Wells Fargo did not appeal denial of
its motion to strike deemed admissions. (See "Appellant's Verified Motion to
Disqualify Barrett, Daffin, Frappier, Turner & Engel LLP and to Strike Wells Fargo's
Pleadings" at 2-3).
Regarding discovery requests "outside the scope of a forcible detainer lawsuit"-as
far back as 1931 Texas courts said that the tenant had an adequate remedy at law
because the tenant could raise any legal defenses to his possession of the
premises in the justice court and could pursue other relief in the district court for
damages not within the jurisdiction of the justice court. Bexar County v. Stewart,
41 S.W.2d 85 - 1931. Citing Bexar County, the Texas Supreme Court said a
9 | P a ge
tenant's "adequate remedy at law is to defend himself in the justice court suit."
McGlothlin v. Kliebert, 672 S.W.2d 231, 232 - Tex: Supreme Court 1984.
Appellant's answer pled fraud on the court, illegality, and Wells Fargo's lack of
standing (CR 124 -179 amended by 253-268). Texas Rules of Evidence Rule 406
Habit; Routine Practice provides:
"Evidence of the routine practice of an organization whether corroborated
or not and regardless of the presence of eyewitnesses is relevant to prove
the conduct of the organization on a particular occasion was in conformity
with the habit or routine practice."
Concomitantly, Texas Rule of Civil Procedure TRCP 192.3(a) provides:
"In general, a party may obtain discovery regarding any matter that is not
privileged and is relevant to the subject matter of the pending action,
whether it relates to the claim or defense of the party seeking discovery or
the claim or defense of any other party. It is not a ground for objection that
the information sought will be inadmissible at trial if the information
sought appears reasonably calculated to lead to the discovery of admissible
evidence."
Along this same vein, a federal court recently found
"substantial evidence that Wells Fargo's administrative group responsible
for the documentary aspects of enforcing defaulted loan documents
created new mortgage assignments and forged indorsements when it was
determined by outside counsel that they were required to enforce loans."
IN RE CARRSOW-FRANKLIN, Case No. 10-20010 (RDD). Bankr Court,
SD New York January 28, 2015.
10 | P a g e
As here, the Carrsow court was asked to determine issues of fraud, standing, and
Illegality when the debtor objected to a claim filed by Wells Fargo Bank, NA on the
basis that Wells Fargo is not the holder or owner of the note and beneficiary of
the deed of trust upon which the claim is based and therefore lacks standing to
assert the claim. Wells Fargo had previously sold the note to Freddie Mac thus
prompting the question: "if Freddie Mac was the owner of the loan, as both Wells
Fargo and Freddie Mac contended, why was Claim No. 1-1 filed by Wells Fargo not
as Freddie Mac's agent or servicer, but, rather, in its own name?"
Here, it is not disputed that Wells Fargo sold the promissory note to a
securitization trust and there is zero evidence of any assignment of the deed of
trust to Wells Fargo. Legally insufficient evidence or "no evidence" of a vital fact
exists when the record contains a complete absence of evidence of a vital fact.
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
V. No evidence of privity between Kenneth W. Houston and Wells Fargo Bank
In Miller v. Homecomings Financial, LLC, 881 F. Supp. 2d 825, 832 - Dist. Court, SD
Texas 2012, the court said:
11 | P a g e
"Banks are neither private attorneys general nor bounty hunters, armed
with a roving commission to seek out defaulting homeowners and take
away their homes in satisfaction of some other bank's deed of trust." TEX.
LOC. GOV'T CODE ANN. § 192.007(a) "declares that any transfer or
assignment of a recorded mortgage must also be recorded in the office of
the county clerk" and "the absence of such required filings is arguably some
evidence that no such assignment or transfer has occurred." Id. at 830.
In addition, RULE 8 (e)(i) of "MERSCORP, INC. RULES OF MEMBERSHIP; REQUIRED
ASSIGNMENTS FOR FORECLOSURE & BANKRUPTCY" require that:
"The note owner or the note owner's servicer shall cause the Certifying
Officer to execute the assignment of the Security Instrument from MERS to
the note owner's servicer, or to such other party expressly and specifically
designated by the note-owner before initiating foreclosure proceedings or
filing Legal Proceedings and promptly send the assignment of the Security
Instrument (in recordable form) for recording in the applicable public land
records."1
Nevertheless, Wells Fargo admits (Deemed Admission No. 1) and Cherokee
County land records confirm -that no such assignment was ever recorded
transferring the Houston deed of trust to Wells Fargo. Wells Fargo filed the
instant legal proceedings on August 20, 2012 and CR 222-223 dated June 27,
2013 demonstrates the lack of the required assignment.
Appellant does not object to the following statements in Appellee's Brief:
"Therefore Appellants established as a matter of law that it is legally
entitled to possession of the Property."(p.l9); and "Appellee is not a party
to the Deed of Trust which created the lien which was foreclosed on and
purchased by Appellant on May 5, 2009. To the contrary, Kenneth W.
1www.mersinc.org/cornponent/docman/doc_download/366-mers...
12 | P a g e
Houston (who is deceased) is the borrower of record and the signatory on
the Note, Deed of Trust, and associated loan documents. Appellee is not
mentioned in either the Note or Deed of Trust; nor is Appellee mentioned
in any of the origination documents. Appellee did not assume the loan or
otherwise become bound by its provisions and Houston did not assign his
rights under the Note or the Deed of Trust to Appellee." (p.20).
VI. Well's Fargo's "no assignment needed" suggestion is a hoax
"Judges are not like pigs, hunting for truffles buried in briefs." De La O v.
Housing Authority of City of El Paso, 417 F.3d 495, 501 - Court of Appeals,
5th Circuit 2005.
Appellee's brief (p. 16-17) presents a series of bizarrely inapposite cases which
tend to support Appellant's position on this issue. See Rodriguez v.
CITIMORTGAGE, INC., Tex: Court of Appeals, 3rd Dist. 2011: "On February 19,
2009, the deed of trust was assigned by the note holder (Mortgage Electronic
Registration Systems Inc., as nominee for Primary) to Citimortgage." "At trial
before the county court at law, Citimortgage introduced into evidence, without
objection, certified copies of Rodriguez's deed of trust, the assignment of the
deed to Citimortgage, and the substitute trustee's deed of the property." See
Mitchell v. Citifinancial Mortg. Co., 192 S.W.3d 882 - Tex: Court of Appeals, 5th
Dist. 2006: "Specifically, appellants contend that Citifinancial's complaint for
forcible entry and detainer did not sufficiently describe the land or premises for
13 | P a g e
which it sought possession." Id. at 883. "Appellants make no argument and
provide no authorities pertaining to the sufficiency of the evidence, thereby
waiving any such argument." Ibid. "Citifinancial, holder of the note for the Deed
of Trust, executed its power of sale under the Deed of Trust and acquired the
property." Ibid. See Powelson v. US BANK NAT. ASS'N, 125 S.W.3d 810, 811 - Tex:
Court of Appeals, 5th Dist. 2004: "Appellant Richard Powelson contends in a
single point of error that the evidence supporting the judgment is insufficient as a
matter of law. Specifically, Powelson contends that U.S. Bank's complaint for
forcible detainer did not sufficiently describe the land or premises for which it
sought possession and failed to allege a right to immediate possession." See
Mortgage Electronic Registration Systems v. Knight, No. 09-04-452 CV, 2006 WL
510338, (Tex.App-Beaumont March 2, 2006, no pet.) (mem. op): "Knight
purchased the property with the proceeds of a loan from Mortgage Electronic
Registration Systems, Inc. ('MERS'), and she secured her loan with a deed of trust.
Knight defaulted on the loan and MERS foreclosed as allowed by the deed of
trust." "Knight appealed the judgment to the county court at law and it awarded
possession of the premises to her." "As Knight did not file an appellate brief, we
have no response opposing issue two's arguments."
14 | P a g e
While pointing to no case which states a bank can enforce a deed of trust without
an assignment of either the note or the deed of trust, Wells Fargo concedes that
in order to prevail in this forcible detainer suit it must demonstrate a landlord-
tenant relationship exists between Appellant and Wells Fargo in order for a
forcible detainer court to have jurisdiction (Appellee's brief at 15). Then Wells
Fargo cites a provision of the Houston deed of trust and claims it has a right to
enforce a contract which was never assigned to Wells Fargo.
A plaintiff must have standing to bring a lawsuit. Austin Nursing Ctr., Inc. v.
Lovato, 171 S.W.3d 845, 848 (Tex.2005). Standing deals with whether a
litigant is the proper person to bring the lawsuit. West v. Brenntag Sw., Inc.,
168 S.W.3d 327, 334 (Tex.App.-Texarkana 2005, pet. denied). Without a
breach of a legal right belonging to a plaintiff, that plaintiff has no standing
to litigate. Gleason v. Taub, 180 S.W.3d 711, 713 (Tex.App.-Fort Worth
2005, pet. denied). A person may not sue for the breach of a contract
unless he is a party or third-party beneficiary to the contract. See, e.g.,
Williams v. Eggleston, 170 U.S. 304, 309, 18 S. Ct. 617, 42 L. Ed. 1047 (1898);
MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 651
(Tex.1999); House v. Houston Waterworks Co., 88 Tex. 233, 31 S.W. 179,
179 (1895).
How does a party who is not mentioned in any origination document
demonstrate that he was injured by the breech of a contract to which he is not a
party? The well-settled answer is that he must demonstrate that those rights
were assigned to him either directly by the Lender or indirectly through an
15 | P a g e
unbroken chain of assignments tracing back to the Lender. An exception to the
general rule occurs when the promissory note -at some point in the chain of
assignments- has been endorsed "in blank" by either the original lender or a valid
assignee so that anyone with possession of the note has the right to enforce the
note. "[Ujnder Texas law a person in possession of a note indorsed in blank may
enforce the note and a related deed of trust or mortgage even if the noteholder
does not have a valid assignment of the mortgage or deed of trust." IN RE
CARRSOW-FRANKLIN, Case No. 10-20010 (RDD). Bankr. Court, SD New York
January 28, 2015.
Again here, there is a complete absence of any evidence that Wells Fargo has
standing to enforce the Houston Deed of Trust because there is no assignment
and there is no evidence that Wells Fargo owns or holds any note signed by
Kenneth Houston.
See "JPMadoff Chapter 7 Asks Jamie Dimon, 'At Long Last, Have You Left No Sense
of Decency?'"; Forbes; 2/05/2015; by Laurence Kotlikoff:
"And proving the old precept that every lawyer gets the client he deserves,
the authors give two very recent examples of JPMorgan Chase being
represented in foreclosure actions — one in Brooklyn and one in Westport,
Connecticut — by dishonest attorneys. In the Brooklyn case, the judge
found that JPMorgan Chase committed a 'fraud on the Court" when, among
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other things, the lawyer filed false affidavits claiming that JPMorgan Chase
owned the mortgage it was foreclosing on when it didn't".2
VII. Wells Fargo claims forcible detainer is a judicial proceeding that bars
interposition of constitutional claims (Brief of the Appellee at 21).
No citation is needed to explain that state courts and federal courts are separate
systems which unify in a single supreme court whose mandates are then observed
in every inferior court whether state or federal. Although federal courts have the
power to enjoin state court proceedings, principles of comity and federalism as
announced in Younger v. Harris, 401 U.S. 37 (1971) were widely held to require all
state court judicial proceedings to permit the interposition of constitutional
claims. See i.e. Wade v. COM'N FOR LAWYER DISCIPLINE, 961 S.W.2d 366, 377 -
Tex: Court of Appeals 1997("Regarding appellant's due process claims, a party is
entitled to a reasonable opportunity to have such issues heard and determined by
the court.")
The Younger Abstention Doctrine which required federal courts to abstain from
interfering in state court proceedings did not apply "where state law clearly bars
the interposition of the constitutional claims." Moore v. Sims, 442 U.S. 415, 426
(1979). Later the court said that:
http://www.forbes.com/sites/kotlikoff/2015/02/05/jpmadoff-chapter-7-asks-jamie-dimon-
17 | P a g e
"Not only would federal injunctions [involving a State's interest in 'forcing
persons to transfer property in response to a court's judgment'] interfere
with the execution of state judgments, but they would do so on grounds
that challenge the very process by which those judgments were obtained.
So long as those challenges relate to pending state proceedings, proper
respect for the ability of state courts to resolve federal questions presented
in state-court litigation mandates that the federal court stay its hand."
Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 14 (1987). "The question is whether
that challenge can be raised in the pending state proceedings subject to
conventional limits on justiciability [sp]. On this point, Texas law is
apparently as accommodating as the federal forum. Certainly, abstention is
appropriate unless state law clearly bars the interposition of the
constitutional claims." Moore v. Sims, id. at 425-426 .
A tenant's "adequate remedy at law is to defend himself in the justice court suit."
McGlothlin v. Kliebert, 672 S.W.2d at 232.
"The constitutionality of a statute is an affirmative defense that must be
timely pled; otherwise, it is waived." Texaco, Inc. v. Pennzoil Co., 729 S.W.2d
768, 856-857 -Tex: Court of Appeals 1987. "No procedural principle is more
familiar to this Court than that a constitutional right may be forfeited in
criminal as well as civil cases by the failure to make timely assertion of that
right." Michel v. State, 350 U.S. at 99, 76 S.Ct. at 163 "Virtually any right,
including a constitutional right, may be waived if not timely pleaded or
otherwise properly presented to the trial court. See Texaco, Inc. v. Pennzoil,
Inc. 729 S.W.2d 768, 856-58 (Tex.App. 1987, writ denied), cert, dism'd, 485
U.S. 994, 108 S. Ct. 1305, 99 LEd.2d 686 (1988). In the absence of any
pleading or other showing that he raised the issue of the alleged violation
of his due process rights in the trial court and obtained a ruling thereon,
Minnick must be considered to have waived any such complaint. See Tex.
R.App.P. 52(a)." Minnick v. State Bar of Texas, 790 SW 2d 87,89 - Tex: Court
of Appeals, 3rd Dist. 1990.
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Notwithstanding the foregoing, it should be noted that the Supreme Court
drastically narrowed the scope of Younger abstentions in Sprint Communications,
Inc. v. Jacobs, 134 S. Ct. 584, 593-594 (Dec. 10, 2013):
"Divorced from their quasi-criminal context, the three Middlesex conditions
would extend Younger to virtually all parallel state and federal proceedings,
at least where a party could identify a plausibly important state interest.
See Tr. of Oral Arg. 35-36. That result is irreconcilable with our dominant
instruction that, even in the presence of parallel state proceedings,
abstention from the exercise of federal jurisdiction is the 'exception, not
the rule.' Hawaii Housing Authority v. Midkiff 467 U.S. 229, 236, 104 S. Ct.
2321, 81 LEd.2d 186 (1984) (quoting Colorado River, 424 U.S., at 813, 96
S. Ct. 1236). In short, to guide other federal courts, we today clarify and
affirm that Younger extends to the three 'exceptional circumstances'
identified in NOPSI, but no further."
VIII. Appellee's bald assertion that "THERE WAS NO FABRICATION OF ANY
EVIDENCE BY WELLS FARGO" does not comply with TRAP 38.1
This contention is not supported by the record and is contradicted by Wells
Fargo's deemed admissions. On December 5, 2014 Appellant filed "Appellant's
Verified Motion to Disqualify Barrett, Daffin, Frappier, Turner & Engel LLP and to
Strike Wells Fargo's Pleadings" (motion for sanctions) wherein he described a
nation-wide pattern of fabrication of false documents by Wells Fargo's outside
counsel which were then presented to courts. In the court below, Wells Fargo
19 | P a g e
admitted to filing these same false documents in this case. On December 18, 2014
this Court notified the parties that it was passing on the motion for sanctions after
Wells Fargo failed to file a response. Appellant by reference, incorporated the
motion for sanctions into his original brief. After the passage of 40 plus days, the
totality of Wells Fargo's response is:
"THERE WAS NO FABRICATION OF ANY EVIDENCE BY WELLS FARGO" and
"Appellant tendered discovery to Appellee that covered allegations outside
the scope of a forcible detainer lawsuit."
Because the requirement of TRAP 38.2(a)(1), 38.1(i) is "not satisfied by merely
uttering brief, conclusory statements unsupported by legal citations" Canton-
Carter v. Baylor College, ibid, Wells Fargo has failed to show any reason why
"Appellant's Verified Motion to Disqualify Barrett, Daffin, Frappier, Turner & Engel
LLP and to Strike Wells Fargo's Pleadings" should not be granted.
In explaining a court's inherent power to sanction reprehensible conduct, the U.S.
Supreme Court said:
Respondent's "entire course of conduct throughout the lawsuit evidenced
bad faith and an attempt to perpetrate a fraud on the court, and the
conduct sanctionable under the Rules was intertwined within conduct that
only the inherent power could address. In circumstances such as these in
which all of a litigant's conduct is deemed sanctionable, requiring a court
first to apply Rules and statutes containing sanctioning provisions to
discrete occurrences before invoking inherent power to address remaining
20 | P a g e
instances of sanctionable conduct would serve only to foster extensive and
needless satellite litigation, which is contrary to the aim of the Rules
themselves." Chambers v. Nasco, Inc., 501 U.S. 32, 51 - Supreme Court 1991.
IX. Appellant's motion for sanctions is ripe for decision.
"A district court is obliged to take measures against unethical conduct
occurring in connection with any proceeding before it. A motion to
disqualify counsel is the proper method for a party-litigant to bring the
issues of conflict of interest or breach of ethical duties to the attention of
the court." Musicus v. Westinghouse Elec. Corp., 621 F.2d 742, 744 - Court
of Appeals, 5th Circuit 1980 (internal citations omitted).
Wells Fargo concedes that "Appellee believes that oral argument is not necessary
for this Court to understand the issues presented in the briefs of the parties."
(Brief of Appellee at 7). "[Proceedings for sanctions must afford a party notice
and an adequate opportunity to be heard. A plaintiff's pleadings satisfy this notice
requirement and allow the party to defend the claims against him." Davila v.
World Car Five Star, 75 S.W.3d 537, 543 - Tex: Court of Appeals, 4th Dist. 2002
(internal citations omitted). Here, Wells Fargo has received both notice and an
adequate opportunity to be heard.
X. No Remorse
21 | P a ge
Newspaper articles appearing in the New York Post {NYFederal judge slams Wells
Fargo forforged mortgage docs)3 and the Boston Globe [Judge faults Wells Fargo
in 'shocking' foreclosure)*, report recent court decisions describing Wells Fargo's
conduct as:
"outrageous and reprehensible"; "deceptive and intentional conduct" that
"displayed a complete and total disregard for the rights of David and
Crystal Holm"; "Defendant Wells Fargo operated from a position of
superiority provided by its enormous wealth,"; "Wells Fargo's decision took
advantage of an obviously financially vulnerable family," the judge
continued, noting that Wells Fargo showed no evidence of remorse for the
harm caused; "In fact, the Court recalls the lack of remorse and humanity
illustrated by a Wells Fargo corporate representative who testified, 'I'm not
here as a human being. I'm here as a representative of Wells Fargo,'"; and
"shocking".
In these 2 cases, the courts awarded $2.9 million and $2.7 million in punitive
damages respectively.
Additional points contained in the Forbes article JP Madoff (id.) are:
"For months now, Chaitman and Gotthoffer have pointed out, with
irrefutable factual detail, that JPMorgan Chase has been turned into a
criminal enterprise on Dimon's watch."; "where the authors compare
JPMorgan Chase to the Gambino crime family. There are a lot more
similarities than differences."; "[Wjhile Dimon complains that it's
3NY Federal judge slams Wells Fargo forforged mortgage docs; New York Post; January 31,
2015; by Catherine Curan.
http://nypost.com/2015/01/31/ny-federal-judge-slams-wells-fargo-for-forged-mortgage-docs/
4 Judge faults Wells Fargo in 'shocking' foreclosure; Boston Globe; AP March 9, 2014;
http://www.bostonglobe.com/business/2014/03/09/bank-told-pay-for-shocking-
foreclosure/RI0baLejgcc3QedcwA63cl/story.html
22 | P a g e
impossible to predict the Bank's legal expenses, the reason is, he can't
predict how many times in a given year the Bank will get caught violating
the law. And, as pointed out in Chapter 7, if JPMorgan Chase stops breaking
the law, it will not only have more predictable legal fees but lower ones.
But, of course, it will also have significantly lower profits."; "The different
schemes and artifices JP Morgan engages in to cheat its customers
underscores why the whole industry needs overhauling and true regulatory
oversight. The authors' recitation of JPMorgan's continuing misconduct,
again raises the question the authors have previously raised as to how long
the American people are going to tolerate a government that gives criminal
bankers get-out-of-jail free cards. The impact of too-big-to-fail criminal
institutions is devastating for our economy."
A yahoo search of the term "Wells Faro litigation" returns page after page after
page of litigation against Wells Fargo resulting in billions of dollars of payouts by
Wells Fargo for various frauds against depositors, investors, stockholders,
retirement funds, state and federal governments, and courts. The inference to be
drawn is that like JP Morgan, Wells Fargo makes more money by breaking the law
than by observing the law. Texas should not be a safe haven for such a business
model. Wells Fargo's continuing assertions that this Court has no jurisdiction
over Wells Fargo in this appeal (Appellee's brief at 8) supports an inference
that Wells Fargo lacks any remorse.
23 | P a g e
XI. Conclusion and Prayer for Relief
In East Texas, late February is a time for planting potatoes and strawberries. For
years, Appellant has cultivated a large garden spot at 186 Tarrant Rd., Bullard (the
Houston Property) year-by-year adding nutrients to improve the land. Although
Appellant deeply resents being deprived of that garden by a lame duck trial judge
who flagrantly violated the Code of Judicial Conduct, he is more strongly affected
by the questions of his three year old son Garrett. Every couple of days, Garrett
asks: "Papa, when are we going home?" Because Garrett is too young to
understand the he has already inherited an inalienable right to the laws'
protections, Appellant tells him "the house is being fixed and Papa is working on
it".
Appellant's initial brief has already requested the appropriate relief and to that
Appellant only adds a plea to the Court to grant the requested relief without
delay.
APPELLANT prays for same.
24 I P a s e
Respectfully submitted,
Robert Robinson, Pro Se
Appellant
16897 Pine Lane
Flint, Texas 75762
(903) 245-0908
cilantro518@yahoo.com
Certificate of Service
I, the undersigned hereby certify that a copy of the foregoing document was
served on all parties and Counsel on February 24, 2015 as follows:
VIA USPS FIRST CLASS MAIL
Melissa McKinney
Lead Counsel for Wells Fargo Bank, N.A.
Barrett Daffin Frappier Turner & Engel, LLP
15000 Surveyor Boulevard, Suite 100
Addison, Texas 75001
(972) 341-0995
(972) 341-0734 Facsimile
melissmc@bdfgroup.com
Robert Robinson
25 | P a g e
Certificate of Word Count
I, the undersigned hereby certify that the applicable word count of this document
as measured by Microsoft Word is: 4,835.
Robert Robinson
26 | P a g e
U.S. POSTAGE
DGTP
FRftNk'STON.TX
75763
FEB 24.'15
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12th Court of Appeals
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