ACCEPTED 01-15-00114-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 10/5/2015 4:24:34 PM CHRISTOPHER PRINE 01-15-00114-CV CLERK
INTHE
FIRST COURT OF APPEALS FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS AT HOUSTON TEXAS 10/5/2015 4:24:34 PM CHRISTOPHER A. PRINE Clerk
CHRISTINA LIVINGSTON,
Appellant,
v. FEDERAL NATIONAL MORTGAGE ASSOCIATION FANNIE MAE,
Appellee.
Appeal from the County Court At Law No. Four (4) of Harris County Texas
APPELLANT'S MOTION FOR REHEARING
Arturo R. Eureste State Bar No. 06702250 Law Office of Dovalina & Eureste L.L.P. 122 Tuam St., Suite 100 Houston Texas 77006 Phone: (713)624-1010 Fax: (713)624-1010 Email: art@eurestelaw.com Attorney for Appellant Christina Livingston 01-15-00114-CV
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION FANNIE MAE,
IDENTITY OF PARTIES & COUNSEL
Appellant: Counsel:
Christina Livingston Arturo R. Eureste State Bar No. 06702250 Law Office of Dovalina & Eureste L.L.P. 122 Tuam St., Suite 100 Houston Texas 77006 Phone: (713)624-1010 Fax: (713)624-1010 Email: art@eurestelaw.com Attorney for Appellant
Appellee: Counsel:
Federal National Association Jeffrey Ben Hardaway Fannie Mae State Bar No. 24038254 Codilis & Stawiarski, P .C. 650 North Sam Houston Parkway East 450 Houston, TX 77060 Tel. (281)925-5356 Fax. (281)925-5356 Email: j effhardaway@tx.cslegal.com Attorney for Appellee
Appellants Motion for Rehearing: Page 2 of39 Christina Livingston v. Federal National Mortgage Association Fannie Mae 01-15-00114-CV (Tex.App.-Houston [1'' Dist]). TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL . .. .. .. .. . .. . .. .. . .. . . .. . .. . . . . .. . . .. . .. •... 2
INDEX OF AUTHORITIES ..... ....... ......... ........... ... ... .. ....... ... ..... ... ..... 3
STATEMENT OF CASE.................................................................... 4
ISSUES PRESENTED .................................................................... . 1. CAN THIS COURT GRANT A "MOTION FOR REVIEW" WHEN THE CASE WAS DISMISSED FOR LACK OF PROSECUTION DUE TO APPELLANTS FAILURE TO FILE THEIR BRIEF?
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 5
ARGUMENT................................................................................... 5
PRAYER.......................................................................................... 6
CERTIFICATE OF SERVICE............................................................ 7
APPENDIX.................................................................................... 8
INDEX OF AUTHORITIES CASES Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 & n.91 (Tex. 2001). 5 In re K.C.B., 251 S.W.3d 514, 517 (Tex. 2008). 5 Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports; Inc., 813 S.W.2d 499, 5 500 (Tex.1991). Hone v. Hanafin, 104 S.W.3d 884, 887 (Tex. 2003) (per curiam); 6
TEXAS CONSTITUTION
Texas Constitution Article XVI Section 50. 4
TEXAS STATUES
Texas Property Code Section 24 4 Tex.R.App.P. §§ 38.8(a)(l) 6 TEX R. APP. P. 10.5(b)(l)(C). 6
Appellants Motion for Rehearing: Page 3 of 39 Christina Livingston v. Federal National Mortgage Association Fannie Mae 01-15-00114-CV (Tex.App.-Houston [l'' Dist]). STATEMENT OF CASE
Appellant brought this appeal on the grounds that the Justice of the Peace Court in Harris
County and the County Court at Law No. Four in Harris County, Honorable Judge Roberta
Lloyd, did not have jurisdiction to enter an eviction order removing Appellants right of
possession in her homestead residence or in the alternative, that provisions in Deeds of Trust that
create a landlord tenant relationship of a homeowner and his mortgagee after foreclosure should
be declared unconstitutional because these provisions violate the Texas Constitutionl and the
United States Constitution2 by failing to afford due process safeguards against wrongfully
foreclosed homeowners.
This Appeal was filed on February 5, 2015. On May 13, 2015, Appellant filed their
docketing statement. On May 19, 2015 this Honorable Court sent notices to the parties that the
reporter's record was filed and that Appellants brief was due within thirty (30) days of that date.
Appellant concluded and scheduled a filing deadline date of June 18, 2015 for the brief.
Appellant failed to file its brief within the deadline period because Appellant's office was
faced with an avalanche of new cases and an overwhelming amount of activity on existing cases.
The firm was also faced with changes in employees, while at the same time, equipment was
being updated and repaired. The office also expanded to include a department in modifications
and litigation concerning new modification laws and rules. During all this extraordinary activity,
the likes the firm had never had before, this appellate case was lost in the activity. Although the
briefing deadline was scheduled for preparation the scheduling was missed.
Because Appellant failed to file his brief within the time period required, this Court
dismissed his case for lack of prosecution on September 15, 2015. Once Appellant became
aware of the dismissal, he filed this motion for rehearing within the deadline period. Appellant
1 Tex. Const. Art. XVI§ 50 & Art. I§ 19 2 US Const. Amend. V Appellants Motion for Rehearing: Page 4 of39 Christina Livingston v. Federal National Mortgage Association Fannie Mae 01-15-00114-CV (Tex.App.-Houston [1'' Dist]). received the notice of dismissal by email which allowed Appellant an additional three days in
addition to the 15 days given to file a motion for rehearing.
SUMMARY OF ARGUMENT
Appellant brings this Motion for Review to allow Appellant to submit his late brief.
Appellant's delay was not due to deliberate or intentional noncompliance. Instead, due to
circumstances amounting to "plausible good faith justification" Appellant failed to meet the
deadline.
Appellant asserts the Appellee will not be prejudiced. Appellee has as security, a paid bond
by Appellant to cover cost of Appellee during this appeal.
ARGUMENT
Issue 1: CAN THIS COURT GRANT A "MOTION FOR REVIEW" WHEN THE CASE WAS DISMISSED FOR LACK OF PROSECUTION DUE TO APPELLANTS FAILURE TO FILE THEIR BRIEF?
"The Supreme Court of Texas has made clear that courts of appeal should strive to determine
cases on the merits rather than on a procedural technicality that is easily corrected. " Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 205 & n.91 (Tex. 2001). "In the past [this court has] tried to
ensure that the right to appeal is not lost by an overly technical application of the law." Id.
"[W]e have instructed the courts of appeals to construe the Rules of Appellate Procedure
reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not
absolutely necessary to effect the purpose of a rule." Id. "[J]ustice is not served when a case
like this, ripe for determination on the merits, is decided on "a procedural technicality" that can
easily be corrected....
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ACCEPTED 01-15-00114-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 10/5/2015 4:24:34 PM CHRISTOPHER PRINE 01-15-00114-CV CLERK
INTHE
FIRST COURT OF APPEALS FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS AT HOUSTON TEXAS 10/5/2015 4:24:34 PM CHRISTOPHER A. PRINE Clerk
CHRISTINA LIVINGSTON,
Appellant,
v. FEDERAL NATIONAL MORTGAGE ASSOCIATION FANNIE MAE,
Appellee.
Appeal from the County Court At Law No. Four (4) of Harris County Texas
APPELLANT'S MOTION FOR REHEARING
Arturo R. Eureste State Bar No. 06702250 Law Office of Dovalina & Eureste L.L.P. 122 Tuam St., Suite 100 Houston Texas 77006 Phone: (713)624-1010 Fax: (713)624-1010 Email: art@eurestelaw.com Attorney for Appellant Christina Livingston 01-15-00114-CV
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION FANNIE MAE,
IDENTITY OF PARTIES & COUNSEL
Appellant: Counsel:
Christina Livingston Arturo R. Eureste State Bar No. 06702250 Law Office of Dovalina & Eureste L.L.P. 122 Tuam St., Suite 100 Houston Texas 77006 Phone: (713)624-1010 Fax: (713)624-1010 Email: art@eurestelaw.com Attorney for Appellant
Appellee: Counsel:
Federal National Association Jeffrey Ben Hardaway Fannie Mae State Bar No. 24038254 Codilis & Stawiarski, P .C. 650 North Sam Houston Parkway East 450 Houston, TX 77060 Tel. (281)925-5356 Fax. (281)925-5356 Email: j effhardaway@tx.cslegal.com Attorney for Appellee
Appellants Motion for Rehearing: Page 2 of39 Christina Livingston v. Federal National Mortgage Association Fannie Mae 01-15-00114-CV (Tex.App.-Houston [1'' Dist]). TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL . .. .. .. .. . .. . .. .. . .. . . .. . .. . . . . .. . . .. . .. •... 2
INDEX OF AUTHORITIES ..... ....... ......... ........... ... ... .. ....... ... ..... ... ..... 3
STATEMENT OF CASE.................................................................... 4
ISSUES PRESENTED .................................................................... . 1. CAN THIS COURT GRANT A "MOTION FOR REVIEW" WHEN THE CASE WAS DISMISSED FOR LACK OF PROSECUTION DUE TO APPELLANTS FAILURE TO FILE THEIR BRIEF?
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 5
ARGUMENT................................................................................... 5
PRAYER.......................................................................................... 6
CERTIFICATE OF SERVICE............................................................ 7
APPENDIX.................................................................................... 8
INDEX OF AUTHORITIES CASES Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 & n.91 (Tex. 2001). 5 In re K.C.B., 251 S.W.3d 514, 517 (Tex. 2008). 5 Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports; Inc., 813 S.W.2d 499, 5 500 (Tex.1991). Hone v. Hanafin, 104 S.W.3d 884, 887 (Tex. 2003) (per curiam); 6
TEXAS CONSTITUTION
Texas Constitution Article XVI Section 50. 4
TEXAS STATUES
Texas Property Code Section 24 4 Tex.R.App.P. §§ 38.8(a)(l) 6 TEX R. APP. P. 10.5(b)(l)(C). 6
Appellants Motion for Rehearing: Page 3 of 39 Christina Livingston v. Federal National Mortgage Association Fannie Mae 01-15-00114-CV (Tex.App.-Houston [l'' Dist]). STATEMENT OF CASE
Appellant brought this appeal on the grounds that the Justice of the Peace Court in Harris
County and the County Court at Law No. Four in Harris County, Honorable Judge Roberta
Lloyd, did not have jurisdiction to enter an eviction order removing Appellants right of
possession in her homestead residence or in the alternative, that provisions in Deeds of Trust that
create a landlord tenant relationship of a homeowner and his mortgagee after foreclosure should
be declared unconstitutional because these provisions violate the Texas Constitutionl and the
United States Constitution2 by failing to afford due process safeguards against wrongfully
foreclosed homeowners.
This Appeal was filed on February 5, 2015. On May 13, 2015, Appellant filed their
docketing statement. On May 19, 2015 this Honorable Court sent notices to the parties that the
reporter's record was filed and that Appellants brief was due within thirty (30) days of that date.
Appellant concluded and scheduled a filing deadline date of June 18, 2015 for the brief.
Appellant failed to file its brief within the deadline period because Appellant's office was
faced with an avalanche of new cases and an overwhelming amount of activity on existing cases.
The firm was also faced with changes in employees, while at the same time, equipment was
being updated and repaired. The office also expanded to include a department in modifications
and litigation concerning new modification laws and rules. During all this extraordinary activity,
the likes the firm had never had before, this appellate case was lost in the activity. Although the
briefing deadline was scheduled for preparation the scheduling was missed.
Because Appellant failed to file his brief within the time period required, this Court
dismissed his case for lack of prosecution on September 15, 2015. Once Appellant became
aware of the dismissal, he filed this motion for rehearing within the deadline period. Appellant
1 Tex. Const. Art. XVI§ 50 & Art. I§ 19 2 US Const. Amend. V Appellants Motion for Rehearing: Page 4 of39 Christina Livingston v. Federal National Mortgage Association Fannie Mae 01-15-00114-CV (Tex.App.-Houston [1'' Dist]). received the notice of dismissal by email which allowed Appellant an additional three days in
addition to the 15 days given to file a motion for rehearing.
SUMMARY OF ARGUMENT
Appellant brings this Motion for Review to allow Appellant to submit his late brief.
Appellant's delay was not due to deliberate or intentional noncompliance. Instead, due to
circumstances amounting to "plausible good faith justification" Appellant failed to meet the
deadline.
Appellant asserts the Appellee will not be prejudiced. Appellee has as security, a paid bond
by Appellant to cover cost of Appellee during this appeal.
ARGUMENT
Issue 1: CAN THIS COURT GRANT A "MOTION FOR REVIEW" WHEN THE CASE WAS DISMISSED FOR LACK OF PROSECUTION DUE TO APPELLANTS FAILURE TO FILE THEIR BRIEF?
"The Supreme Court of Texas has made clear that courts of appeal should strive to determine
cases on the merits rather than on a procedural technicality that is easily corrected. " Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 205 & n.91 (Tex. 2001). "In the past [this court has] tried to
ensure that the right to appeal is not lost by an overly technical application of the law." Id.
"[W]e have instructed the courts of appeals to construe the Rules of Appellate Procedure
reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not
absolutely necessary to effect the purpose of a rule." Id. "[J]ustice is not served when a case
like this, ripe for determination on the merits, is decided on "a procedural technicality" that can
easily be corrected.... " In re K.C.B., 251 S.W.3d 514, 517 (Tex. 2008). See also Grand
Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex.1991).
"Whether we grant a motion for extension hinges on whether the appellant provides a
reasonable explanation for the untimeliness of the filing, that is, a "plausible good faith Appellants Motion for Rehearing: Page 5 of 39 Christina Livingston v. Federal National Mortgage Association Fannie Mae 01-15-00114-CV (Tex.App.-Houston [1'' Dist]). justification for filing their notice of appeal when they did." Hone v. Hanafin, 104 S.W.3d 884,
887 (Tex. 2003) (per curiam); see also TEX R. APP. P. 10.5(b)(l)(C) and 38.8(a)(l). "Thus,
under the liberal standard applied in these cases, any reason short of deliberate or intentional
noncompliance qualifies as reasonable." Id.
Appellant has filed with this review his required brief. See Exhibit "A". Along with his
brief, Appellant has included a Motion to Extend Time to File his Brief. See Exhibit "B".
Appellant asserts the inability to tract the brief deadline and meet the requirement was not due to
intentional delay but mistake and accident. The calendar date for the brief deadline was lost
when Appellant's electronic calendaring failed in combination with an extraordinary amount of
activity from new and existing cases, the likes of which had never been experienced by the firm.
PRAYER
Because of the reasons set forth above, Appellant humbly prays this Court grant his Motion
for Rehearing and reverse the dismissal of this case.
CERTIFICATE OF SERVICE Appellants Motion for Rehearing: Page 6 of39 Christina Livingston v. Federal National Mortgage Association Fannie Mae 01-15-00114-CV (Tex.App.-Houston [1" Dist]). CERTIFICATE OF SERVICE
I certify that on October 5, 2015, I served a copy of APPELLANT'S MOTION TO EXTEND
TIME TO FILE BRIEF on the parties listed below by method indicated therewith:
By: Isl Arturo R. Eureste Arturo R. Eureste
Jeffrey Ben Hardaway Via Email Delivery Codilis & Stawiarski, P.C. 650 North Sam Houston Parkway East 450 Houston, TX 77060 Tel. (281)925-5356 Fax. (281 )925-5356 Email: jeffhardaway@tx.cslegal.com
Appellants Motion for Rehearing: Page 7 of 39 Christina Livingston v. Federal National Mortgage Association Fannie Mae 01-15-00114-CV (Tex.App.-Houston [1 81 Dist]). No. 01-15-00114-CV
APPELLANT'S APPENDIX
LIST OF DOCUMENTS
Exhibit 1. Appellant's Brief A 2. Appellant's Motion to Extend Time to File Brief B
Appellants Motion for Rehearing: Page 8 of39 Christina Livingston v. Federal National Mortgage Association Fannie Mae 01-15-00114-CV (Tex.App.-Houston [1'' Dist]).