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

Opinion

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 barretracing 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

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c. 551·660606

~ iW'I d. SSH-003612

JO ,.,I e. SSH-034914

~ f. SSH~850012 I g. SSH-042479 .; j ~ ql h. SSH-008207 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

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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

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 .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 Attest: 9/29/2015 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

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

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

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. .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

·-··--·- ---. ·-· ··· - - - - · - - -- ----- ..... .. ··---- ---- .. - .

Confidential information may have bee n 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

.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

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

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

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. 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 Attest: 9/29/2015 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

. ····- ··· ·-·-···- ··· - ---- - --·· - -· ... ... ... . . ······· .. .

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 1;\j

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

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,.

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 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 (,

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 ......

,..

,.. (:)

EXHIBIT B

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-<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<h ofGom;•hmom Md '"'' ~ 'hl-lliL DEAN M. BLUMROSEN

Subscribed and sworn to before me on this~ day of October, 2014

IICHEl.L£ GAIRtli.A fOR$1111 ,)ly c-IIIIGCill!lm

\)CIOIItll, 2011

.

- - - - - - - - -----------·- -·-- --- ·- .. ......___ ·----- -- - -- ...

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

Tab4 Motion to Quash Writs of Garnishment

FILED

1111!112014 4:12'2~ PM

stan:Stanan Coun1YCIG11<

PraOBATE COURT 1 Hsllf> 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 Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas

Deputy

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

,...<IJ 2. Mr. McAfee was convicted of a criminal offense Involving the death of the

0

N decedent, Janet Foltyn McAfee, and Is currently serving his sentence at a Texas

0

N

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 mentlon 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, 117.

4. The first Writ of Garnishment reached Mr. McAfee's depository account at

Woodforest National Bank ("Woodforest'). This account, however, is beyond the

reach of all creditors, 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 benefrts.

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

,...,

MOllOH TO QVASHWfUTS OF GARNISHMENT

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Deputy

m beyond the reach or aH creditors, including the judgment creditors in this cause,

N

0 because the account Is Mr. McAfee's tax-deferred retirement benefit account tl. .. arising from his employment with GMS •

0

L'1 ,.. 6. In lieu of an Answer, GMS reported to this Court that It Is holding depository

accounts belonging to Mr. McAfee. See letter from Matthew F. Lipman, Esq.

':"

(counsel for GMS Group)to Stan Stanart, County Clerk (Oct. 23, 2014), which is

0

N a part of this Court's file and Is Incorporated herein by reference. See Exhlbl!

0

N

·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

8. All social security benefits, including SSDI, are exempt from collection actions,

and beyond the reach of debtors, 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); sea also In re Franklin, 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

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! sub<hapter shall b<

.....

MallON TO QUASH WRITS OF GARNISl1MEHT

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('J . 12. The absolute nature of the exemption is based on Congress' insistence on firm

N

~ and secure protection for "beneficiaries and those dependent on beneficiaries

from the claims of creditors.' Reams v. Oklahoma, 411 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 b<lnelils dlreclly deposited and interest on the accounL See ld.

MOTION TO 0\IASH WRITS Of GA.RHtSHMENT .... $

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A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas

~Lt;__.__~_·d/_.......-~=--=· ....- · Senechal Ill SterliM G.

=.;____.Deputy

N

N shedding of the exemption of these funds from garnishment or collections. The (\J 0 Social Security Act uses absolute language, devoid of any exceptions, for any ll.

circumstances. See Philpott v. Essex County Welfare Board, 409 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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(') ('..! 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 Attest: 9/29/2015 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 Locl<harl v. Un~ed States, 546 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. dem<instrales how slliadfastlhls prolecllon remains.

,..,..

MOTION TOQVA.SHWRITS Of GAANJSHMEHT

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A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas

benefrts"); In re F'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 Attest: 9/29/2015 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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{'.

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 Attest: 9/29/2015 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

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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 Attest: 9/29/2015 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

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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.

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(IJ /s!:Rc6ert 'leir 0 Robert Teir

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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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~ 01/27110 $6,576.36 '""'""''

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5I 04/30110 $30,530.99 $2,000.00 #1015 '1:::1 05104110 $28,530.99 $9,735.92 WT = 05JD5110 $38,266.91 $10.00 TF "' 05105110 $311,256.91 $300.00 111018 ·('

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Deputy

·0 FAUST OPPENHEIM LLP i('J ATTOII!IMATLAW 411 MADISON AVEIIUE

0 "EWY0Rt<.IIEWYOIIK10022 li. W!IITI!II"S DIRECT S-lWI. WEJ!Sf&· WNf«hw com TELEPHOt<£ l212lrrt·noo mal:thnl'llpm~rolrw.eom F...:Sl!.l!lE!'211)U1 ...10

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Probate Courts Department P.O. !lox 1525 Houston, TX 77251-1525

Re: Writ of Garnishment- After Judgment Docket No. 396?35-401! &tate of Janet!'. McAfee, Deceased

To whom it may concern:

We are counsel for The OMS Group, LLC ("OMS"), Oomlshee in the above n:fcrenced matter.

GMS received the Writ or ODmishment (Exhibit l) with an order to appear at the Hams County Probate Court. Aocording to 1be eJcrl< with whom I spoke to today, • hearins with regard to the Writ of Garnishment has yet to be sebeduled in this matter.

OMS is headqllllrtered in Livingston, New Jersey and our firm is located in New York, New York. ln lieu of appearing at the hearing in Houston, we request that the C<lurt accepl the attlicllcd Ust (Exhibit 2) of effects (Msets) whlth belong or may belong to the Defendant, Kenneth C<lo!l"r McAfee, held at GMS. Based upon a diligem review of OMS reeords, these are the only accounts that GMS is aware of. There are oQler accounts which bolong only to the deceased.

Until a determination is made by !be Court as to the ownership of these am!S, OMS has placed a freeze on these accounts. Upon receipt of a determina~on by the Court, GMS will release the assets as so Ordered by the Court

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

FAUST OPPENBEIMLLP Sl!Ul Stanart, County Clerk October 23, 2014 Page2

We appreciate your assistance and please do not hesitate to contact us with any queslions.

Very truly yoUI'J,

0 FAUST OPPENHEIM LLP

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Matthew E. Lipman

ce: Dean M. Blumrosen, Esq.

Charles R. Storer, Esq. Tunothy Donohue, llVP, The OMS Group, LLC

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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 Stan art, County Clerk Harris County, Texas

~~=-'"'::-4-=-=·d{_~· -~_Q_Deputy

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Wl~M.u, In 11\e l'fobo.. Coull No. 0... (I~ of Ranis County, T..... ln a <Win . - wbm:ln ROSl!MARY AND lAKE FOLTYII, Pl&intifl'.. lolnUy IJld IO'II:I!IIIy, KENNB'lH COOPER MCAFEE, Defendant; 11\e fllintlf& on Ma:n:b :n. lbl4, JQtlln:d a judsznont •plnrt Jaid Oofendmt In lho ll'fl.m.mt or TWO Mlt.LION DOLt.ARS. ($2,000,000.00). phn In"""''Ill!!"""' of"'!~ lw lfllilkcl fur a Writ ofOomltbm<nl ~pinS! )'OU. !he Slid Oamllhtc;

Th""fo,., you .,. hmby -mlllded to be ll\d IPpell b<fon: hld eourt at Ho"'""'• in said Coun!)' 1t 10:® o'tlock a.m., on lho Mllll<lay nm foUowlns cq>!mloa ofl\ml!y d>y~ !roll! lite dolo ohmi<D hmof01lten om! U....ID answor upon oalh wha~ lf.all)'lllin~~o you oro indObt:d 10 !he Clld ll0S£MAAY and lAKE FOLTYII, and were, whanll!!o writ wu ""'cd upon )'OU. and whuufferu,lf "'Y• of said KENN6'lH COOPER MCAFB! )'011 hAve In )'OUT _...~oo, •nd had wbcnlhls wrilwu """don you, ..d whol elhor- lf l!IJI, whhln your tnowl<dgo,"" indebted"' hid Dofllldm~ "'hAving efT"" belonging lo Dcfi:ndlllt in lhoirl""""loo, llt!!On.lhls Writ WP ..,.cd,

You.,. hereby notified lhtt<<111ln pr<>P<rti« tllc0od to bo owned by you have bc<li -W.od. lfyau claim liiJI rig hiS In Mh proper!)', you U. odvbd:

"'-You ban tt.e rlgbt to ftlllo poau~io'D or the pt"'ptrty b)' nunc 1 Roplovy Bond. Yoa hut. a rl&AI lO letk to rt'lllll poutuiOll or the property by nllaJ wUb the eourt 1 Motfoa lo 41Rotve rldr Writ"

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A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas

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=~Q:)P'fofl.hc•bovtCf:.tlkmfcfu:n~u. . . or!MUJof~~OttnUD41)'1ha;:(ll~~m. ~t-rCo.t'119'ofKarrit,Str.r.urTo;a,lrMrit: •

=----------~----------~M-----------------

·-··------- Shmtr-Cor.Ntll.t, H~Covn!J, Tu•.u

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

starling G. Sanechar Ill

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(!') 0 PROBATE COURT 1 OM

1).

JANET F. MCAFEE, DECEASED 39693>401 0 NO. _ _ __ ~i

ROSEMARY I!'OLTYN,lndivldually§ IN THE 1'):\0BATE COURT ANDJAKEFOLTYN,Iadlvlduafly§ ONE '::1' Plalllllffs § §

0 § N § c § § OF

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§

vs. § §

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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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 p<l\IO!lally serving its regisl=d agent, James D. Dn:>ibeibis, 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,

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5, On or about March 21,20 I4, thls C<Jurt, in case number 396,935· 401 al)'led Rmemary Fo/ry"- Jnr!Mdually lmli tU independent Arlmlnl!trarrix

aftheEsl<!le a/J!111et Fafryn McAfee, Dec<aJea; and Jake Faltyn,lnr!Mdua/1)1

v. KeMelh Cooper McAfee entered • Judgmentl!j!llin:ot O.fendllllt. Kermeth

Caape McAfee in the emount ofS2,000,0UO.UO, p11lll pre and poi! judgment interest, plus costs of Cowt ("Judgment"). A true and correct copy of the

Application lor Writ of Gamtshm<nt Pagel

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A Certified Copy Attest: 9/29/2015 Stan Stanart, County Cleric Harris County, Texas

1!1

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0. 0 Judgment b l!ltllclJed hmto ., Bxhlbit "A" and incorporated herein by

~· reference lllr e.ll pwpo= This Judgment Is just, due, unpaid, end remains

unsotlsfied.

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6. To the best of ~sbm' knowledge, lhe debtor, Kenneth

Cooper M<:A/'<Ie does ool po5Sess properry in T~ eub]ect to cx~Uon tbal l• oufficient to ootiofY the ebove-described claim. Pholnlitrs seNed post·

judgmtl\1 discovery on Mr. McAfee on April 2!, 2014. O.fc:odant did not

produce any docu:menta establishing his owne11hlp of properry in T<Xos

sufficient to "'llsfY the judgment l!Sllinst him.

rv.

7. Oarnlsho11 have toason to believe, end do believe, lbat

Garnishees, The OMS Group, L.L.C, and Woodforesl National Bank, may be

indebted to Kenn•rh Cooper McAfee by mu!ntalnlng or holding one or men:

bank aeeounts. Gunilhon believe Kemeth Cooper McAfoe's SO<>ial se<:Utily

number to be 4S4-8l·:X:X:XX. Oamishm ,..e not seel<ing to U:ijun: or hsrass

the Gamloh<cs or the Iudjpnont Debtor by sending out a Writ ofGunlshment.

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Rlllher, Garnlahore l!le IIU<mlpling to c<>llect on a Judgment. Garnlsbo11

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request that ifClom!shees, The OMS Group, L.L.C.,lll!d Woodllmst National

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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

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l1 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

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belongings as permitwl by Jaw.

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8. Thla Application is supp<med by the Affidavit of Dean M.

BlWlli'Osen Bttached hereto as Bxhlbit "13" and incol"jlQnled t.Wo by,

WHEREFOR!!, PRI!MISES CONSIDBRBD, Rosemary and Joke

Foltyn, request that a Writ of Garnishment be issued as above dc><!libed and

1lmt Oamlshors have Judgmontln partially satisfy the c!oim above-meationed

as provided by law, togcthar with all costs of C<lwt Incurred in this proceedings, and other sud! !ll!ief\0 which Onmlshor.l may be j1ls1ly entitled.

Appllcntlon lor Writ o/Cam!Jhment Pogo4

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A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas

Deputy

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AppUcotion [or Writ ofCarnbbm!!'nt PogeS

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A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas

A-<~d G.

._a Sterling Senechal II!

Deputy

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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

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ROSEMARV J'OLT'Ili,I.. ITt~..lll' § IN'IHE~ROliATli:COTJllTONlt """ .. 10\d•l"ftlltnt /<41n<Aimotrll•l<hef Elttu or J10ct 'folt}11 M~ »-..na:tr § A/fllJ!JCU'OLTY!I,ho<llvldHI!r § 0 J'laJtltlj'ft '

I

N t 01 0 § N vs. t XENH!:l'H COO:r-at MCAPU ~ /HI,.dMt § IW!Rl5 COUNTY, TIIXI.S

On !hi• doy tho C<Nn """'ld<>!<d !he Plaintiffs' Setond Amendod

Motion for Summary ~udpenton Pl•lnrim wrongi\11 doalh o!alm. Tho C<>url, oJ\c:r considering 1ht pleadlnp, !he motion, the respo!Ue,lhny,

and thcOtEU"""'ts of """'''"'• is ofU.. opinion that rho Plolnlilf•' S<cand Amendtd Mollon for Sumntar)> 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<!

M<Afco.

ORD!!Rl!D, ADJUDG!ID il!d Dl!CIU!!ID thai PWnlllf, Rosemary

Foltyn, Individually, recover €!9tn Dcfbndan~ Kcnnc1h C<lo!"" MeAf.., oJ\c:r ell off•<~> ..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<r dsughkr,l..,.! MoM...

It is l'unl!r:r, OROEIU!D, ADllJllOEO .,d Ol!CR.BllO !llll1 Plaln!ifi', lll:e · Foltyn, lndlvl<lll41!y, recovct fnim.Doandant,!Conn<tb Cooper MoAfe<, after all offset. and mdl<>, judgment In !he Olllount of Sl,OOO.OOO.OO, tor b~

0

N omotk>nal pain and su(!'<dng duoiD the dea!b ofh!J doughter, Jllll<t MeA{...

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N nw judgmOli! ohaU """'1)0tog<tbcr wilh lnl""'t theroon lllthc raiD of5% per wnun fi<>m lbo dil< Ulls IUb WI!J !lied on Pci:>romY 23, 2011, unllllho t!llll orjudgmco~ poll·judgm<ntlnlmll atlb< nto of 5% per annum, Md for ell ''""" of Cow:t ~ In 1ltb c&Un, for whioll It! e:<t<udoo bsuc. This lodgmcnlllnllly dlspos,. of all partl" lind lt apJl"'li!ble.

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stONBDthis ~ deyor _ _.m~~ac&a.d-..o.._ _.. 2014. I

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NDOf. LOYD WRIOHT

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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

Jf;4df __o Deputy Sterling G. Senechal Ill

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EX.HIBIT B

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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

fl,_dd._.Q Sterilng G. Senechal Ill Deputy

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STATJlOfTF.XAS

COUNTY Of IWUUS

0 DEFORE ME. thtU'ndcrtlgnWoftleid, on lhb dAy,putondl)' llpPOillldbd'orcnw. N Dtan M. Btum~ who •6u Wins duly 1\I\'Cf'll 1 did depo1:111 and $U11C u follows:

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(\J "'M)'nmR: Js ~M.BlurtVOJm.lammerll )'elrtoh.ac-.ohoumimind, ha"" ne~ ~ coarinud or a fofo:ty •rW om etpllhk: of mUinc thU

Ounlstumnl.

), "l ht¥t ptrson.tl kaowlcdaeo(Jhe fam:as rrated In Oam!Jtmrs• Applli:Mion for Writ ot Oamlshment Uld they ere~..,., <O<m11'7

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

Ill OJ

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SfAA StAIIAlf COUN!Y~!WIRISC<>J!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

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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

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iii

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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(1l 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 th<il 0 •:·· ,,j;:,Qployee Benefits 81\o>p:iby Adlo1Zlistnti.oll.,. as riilqu.~~! \Wa•r

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.·-<' .:;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. ··z

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

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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 rec<!iva from the plan · catlmil')iis:t:notqr, Ofl. ;eqJieQ~ and at no oh<e:ge, a,,!Jtaj:eme'!t. o,f tha "! · ·.""al'e!:-JJ:.'al)i:I: ;l~l;!.~ea :!?.f the plan ~d acilCijnP~IV'ItOJ;Iis:, ti.t' '· ·a li!tatellll!nt of tneomk"'!id ~~~'"' of· tho. p;t'lln ··1:1no:

0 acc6mpanyin;r notes, or both. If you request a copy of the N full annual report from the plan administrator, these two 0 statements and acOOillllanyiuo uoteo will be iucluded ao part of

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,.. that report, These porti<me of the report are furnished without charge. You also have the legally px:otected x:ight to examine the annual report at the maiu officii of the plan<

~~~n:~:~;.,~t~~!'t.b 7~~;te S13 and at the u.s. Department of uabor in Washingtou, D.C., or to obtain A copy from the !I. s. Department of Labor upon payment of copying costa. Requests to the oapartr>ent 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&~~·;....

I<ENNrnl MCAFEE

f01 rN. Twetvv Mor'ltl'ts Enditog Oe~bet 31. 20t3

ASSETS

FED£AA'!l';D<W'IJACRl!SERWa

TOTAL. CA.qH AN1l MON£Y MARKET l'l!NDS PUTNAM EOUI'fY INCOMe FUND

'COT,\L ,\!u'TIIA~ fi!N!IS

""1·"' 1,,~1,!)$ ••~50:30 ~196;i(O-:

003,75-

TOTAL $1'0CKS

I'AR11CirM'iTS ACCOUNT BALANCE 2130 PAR'l1CIPANT ACCO\JNT GALANCE·E~ m.sro.$< 2150 't'TO NET INCREASE. IN. ACCOUNT 7.6&1.!>1)

T01'AL PAR11ClPANTS ACCOUNT DAUI'ICES ll0,l5!.59 ~~~~

----·-- ' nt),l5J~··· ~,.,...,..~.,'i'~

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.<ll

·. .:f,~I!MS

-llf:Cillb:--~

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 .( ~- f~

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SuMMARY PlAN DESC!!Jl'TlON ro&.

THE GMS Oll.OUP,. Li!...C. SAI..A:RY SAviNGs PLAN

Decemb¢r, 2010

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Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy Attest: 9/2912015 Stan Stanart, County Clerk Harris County, Texas

,...,.~.~~· • r-=:-=A~·'L~. . D~. Sterling G. Senechal Ill _.Deputy

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('l 0 'f ARL!l OF CQNTllNTS 0. 0 INmODUCTlOII ................................................................... 1 l:'l

l, Pl)f.I.•PliOJill,B ............. , .. , ............ , ............................... , . 2

2. TRUST AND T!l.USTEP.S ,. ....... , ........... ., ...... , : • •.. . .. .. .. .. • .. .. • .. .. 2 "J

J. IIDM!N!STilJ\T!ONOFTIIEP!.AN ............................................. l

0

N 4. ELIGIBILITY FOR PARTICIPATION ...................... , ..................... 2

0

(IJ 5. S!!IW!C§ WITH TilE COM!! ANY ............................................... l

.... 6. CONTR!BlJTIQNS . .. .. . .. .. • .. .. .. .. .. . .. .. .. .. .. . .. . .. .. • .. .. .. .. .. .. . .. • .. )

7. Wll1!PRAWALS ............................................................ s n. RETIRPJ!!.F.NT I!!'NltFifS .. • .. ............................................... 6

9. pEATil BENilF!TI ......................................................... 7

10. Q!fu\lllLff\'BmfflfiTS .............. , ........................................ 1

lt. QI!FHRI!!jD R\!TU!J!M1!!fl' • .. .. .. • .. .. • .. • .. .. • .. .. • .. .. .. .. .. .. . .. .. • .. • . .. .. 1

ll. TEJIM!NAT!ON Ol'EMl'Ul'IMENJ; ............................................ 7

U. l!LRl!!WAT!Oll MID AMENDMENT OF!'LA,N ................................... 7

14. INFORMATION ABOU1;:l]E.~ ...

IS. LOANS TO PARTICIPANTS ......

16. ROLLOVERS 01\ TRANSfERS ........................................ , ........ 8

i7. PARTIC!PAWSMANAOJIME!'!!Al..):Q!JNTS .................... ; .............. 9

Ill. DOMllSTICREI,A'lJ®-ORDEl!S .............................. i .............. 9

!9. Cl,A!MS PROCEDURES • .. . .. .. .. . .. .. .. .. • • .. .. . .. .. . .. . .. • •• • .. .. . .. • .. .. .. . 9

!0. PAI1.TlCl11ANTS'Rtr:i!!TS .................................................... IU

21. PLA~TEKMrNATION'!NSURANC§ ........................................... II

22. MILITARY SERVICB ........................................................ ll

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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lNTllODUCTJON

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ui ... A 40!(1<) S.vb>ii> Pbn C"Pian'l wu "'"'bli,~ed fut <li8iblc cmployccs off«:u\'0 Jonullt)' !, 19S4. lt l!>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 '<! /Wist> no:.: Act of200Z ~·JeW A.~ "l.

0 11\!a Sutnlnluy tlimi1h,. )W wilh • descnplioo oflb• PIAn and tb< b<n•li"' providt<llhcrcu>•d<r. Tho ~ion N ti;phi..inio a <llb,Wulolon4lm;.ortlllll finoncbl program. The .. I'OI:<, yo.,re"'1!,Cd "' ,..i!.tli SM!l\l!ny 0 ·.~illy ~~<jJlt k!!R i! lqr ~.,_,re(mnct. N The cillltit>uatfdU.oilhls Plan is biiSCd upon tb< c:ondlti<m lh•t the Plan is itpproved and ~ualifiod und¢1 the fntcmll) Rc\"Cnt.W Code (..Code")and reguJationll thucunder, sons to pmnit «n!IJibuticns made und~:T tht Phm t~, be dl-du~W1>fe 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 <lOVl!RN.

A <mpy oflhe Pl•nllo<umo:ll, wl>i~111esnUy gov-•HP!sn op<n>riDN,l>OI\nlc•il"cC:o(•pany1 :Thd'.lm "'')' be read d<uics oorm<~l woridlll! h011rt by oontae~!ng Ill• """""' .Rtloui= o""',tini<!if i>t; !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-l35·5QO<l

ANNIVERSAJtY DATE: D«<ml>orllst

N..ANY8AR: Forpurposc<of llllliQlaitilils tho Pion~ ~~~ •lid olho.r ~otd!,:ll>• 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«<rrds of tl\e JIJan Bud filb\8 an neeessnry S;O\~~t runns. Th~ Trw:tces .nnd tbe I'lan AdministmtGr are dWgtu~ted ss·Agcnt.~t~ for ~O'ice n(lc:gat·prooesll ar Ibe addn:$$C't indicated above.

t. EUG!JllLIU FOil PAR'flC/'P4TfOr.'

Ir)'liU are rnu tummt!y panidpating ln the Plan. if you l;a\-c attn.ilk!d D@.'C" twenry-one (21j und you ate not t1 uniur; Crnploytt of the: Company.:. h:.ou:ed F.:tnploytc ,)rthi! Co!npany or 11 noo-resitkntalkn. you will be tli&ib~e to become n hrtil!ip:ant on the F.nuy Dare (l.lto first d:~yuC JtnWtry, April. July nnd Octobet of CtJ.it yell!) following the dele you comph:tc th 16) toomhs oC tt~!ltinuous service !ith theCO!llD;MY·

·.: .. ·

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy Attest: 9/2912015 Stan Stanart, County Clerk 1-Jarris County, Texas ,, 11'1

Oeno;mlly.. n: Yet~r orSetvi« mcuns n h\'t'fve (l2) month period in wbicb you hnw: completed om thuu.'\acd (1,000) hours or service. An llOUr oCucyic¢ .man mtM c~ hour far wbiclt an employee b directly or indi~ly pn.ld, or ondtJcd to p~tyment, for 1ho pcrform.sna: of duties and for re&lSOtll other than fOr the peri*orm;mce ot duties. For e.~iuttph:, the tc:rm hour of lt:Nice will inehltk re:gu1ar dme, overtimt, vac.n.rions. holidAys. ,ie,k.ne.s:&. dt.J:abitity, lliJ"''fi', h:atk rmY and similar pay periods.

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- Focpurpcma(MEmpiO~'•~Io<OilllllfnC<iportic:ip.tiiod•:fh<Pinn,!ix(G)..,.tbaor cootiouOWI '""'"" wiilllhe Company abo II bo cr<dltcd !!om yourdm Oflil"' b)< 11>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<!scll,!oWOr'.ll'IW;rrum ~u_g•ofC•lJ1PO!U'Uo~ill'\I)'OII,moy!io@nl~'io · · ··- • · l'till <)I"''""I!IIJ•·your ~i:!cmlf·~-'l!i•' <!O<!l F!lll!.J= iliousl!iid Fiv<!llimdr«! iS l~;sOO)'"Ifi!llirs fm 2010 lirul20! i. lmy II< rcmmed toyounol•l<r!heo April l5lh ofth< followilll:YellrOnd Will b<«mside,.d .. pwt Of )'OUt Ill.'· able inct\11'1(: rur J.he yenr m wbich the deferrul \\'M made, lt should bt noted th&t 1heso \imit4tions att: subjccl tu Nturo t\liOt-nf..{hing u.dju.si!'Tk'nl! by lbe- Dq:mnmtnr of TrcQSucy.

tryou ""' •s• filly (lO) or older or lh•ll•l"'in the age or filly (SO) before !be llJi day oflh•l'l••

tilher rn• l"T"<:tl!OS• or tile dolle<ulni!l me11db0«! •bo\'o. Ifyou. will or hove a~aln«< lhl>. YOI\r, yoU may btl endll<d to make odi!idonoi40I(k) sallltY def•rrnl coolrlbullons to 1ht Plan ovc<~~nd llboV< of. 61\:y (SO)

l>ctlmotb<l•!l·'!'JYo!il>OPI•nY""!•l'®•"'<l!i!lblotomm4l)l(J<)~:dof~9'"-1-".<41l:h,Ufi~o~ltibiltiO~" 10 <llo PIM 111. th< Rmoi!01.offl"' Tho<ISOn<l Ftvolj'llll<k'!'f($S.~OOYDollllfHor.fho 20!P oitll;lOH: CJI.Onilct >''"'"'· Th«<limitolionil"• Suti]c<t 1o iutt.re.:osl<~l'lil>ills odjustmebro by !be ~of.~.

tryou m cUI!Il>i< nnd • .-. ini<T.,.tcd in tru~kiug 40 !(l<j ..tny clefem.l<>toh--llP<On!ri'liulions, Pl""'• eonmtt fhtl Pi)n AdminisuAtor.

'four 401{k) ~lory lh~fmn1 ronlribu!it'lns. IO tbt Plan will bC' wilhltelt.l from tbo COlt!peiU&don othr-.nvise pa.ynhrc to you by 1be Compe.uy. Von m~:y cha~~ the amount to be defe-rred bf filing 11 special •·Ubholdmg chang< form l'lilb llle Pion Admini<tr110r 11m t HI) di>)ll' or ""'h olhot timo t><ri<><l d<clmd by tba Phta Administrator, befon: 'lll\Y wiUlhoWfog c:!bns,e dl!lto (jhc fin:t dAy of Janu:.ncy, ApriJ1 Ju1y and Ottl>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 Admiuistmtor 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 n<h>ised of dlt' iimirtn1 -efl'celh'M'cllclrf!UmYarandiUJ)'EimoWtllC011tributtdtoyours:Waij'~~aecount.wiJI.bQa.dju$.t· .nl m:«mllnply. Ally,~ d<fcm:illn ..ccuorlhu!,U!I>Utbcd limitswl!lbOrelll;n"'!f!>.""'.with11tf\'/o . •C:hnd on<:J1>!£t"\7)moolhonftiot'me'<)ldoftho Pl.., Year oru!,willbcoon~'tiol<Ohle~e ft>t'llie~ · . : •\;>Jni,inrh 'ihc ti<f..i.i'wu<MdO. lfyou haVl: A! mined Ill<: "lrgc ofli1\y(50) oil<! ~.Onofnikil<: (Ol(k) ~ VJl cc1n\ribu1ionsto: lhe P\w. yo\t IV'llt bo eUgiblt toha~ the exc:~u deferruts reelNsiflcd as 40 J{I;') catch-trp "

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contdbutitmJ:so rfu:IJ tbe)' moyrc:roain irt lhc Phtn.

You will b¢ contidered h)&hly cnmperuuncd ifcr MY t\fl'lol! duri~t£ the Ptun Ycnr or the: prece:rlinl\ Plnn Yt:Mr you ttro: ·

"'l!n>plo)!CC •vllodutiJla th• Plnn y.., orptcceding Pllln Yoatawned mo<e.tttM H••tS%) P'"':tnl oflbc Company, orpns...,<d 1110« tilltn llli<>(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<iin !f>~ 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 llM<IAg the top ru1hl tw·enty flQI'I'i!) ['lt'l"eCnf or -Mif empf(I)I~Q,

(IIJ liMf[.(}){ljJc CQ/IIt/UBYTI0/1'!1'

• II) Mii.WI!i~~rlli!!lr!!!!·lf1•"'..,.,....l>rl<!hrppli!Y.co (....ll<.~il.~~iowi alld you""' cmpfll)'lid mdhc,lir d•y•of 111< Plan y..t,u.. C011lptt)Y ...y'oli<:t·iu'!lllilie II mmeh!ng ~ontdbutilln to d~ Pt.ln on your bdialf.

M:\tehingt':ompll.n)J Cnntribuiion sh:dl be calc:olatd sepM~tel)1 for e~ch payf1)11 puiod dt~tinl! the Pbn YeN nnd sheJl bo cquol ru up to fifty (.SO%) pc«Lml of tht fir:n ten {J(r..;.) rcrccnt nrynur !!1"1JU~fb1'lli{ln COrtUibllftd [0 lllc: PJ!ln #~ 401(k)iaJary deftO'llf CUtlltibuduns.

fiJJ !Mr..~.JY.~tncddil.iNI,tMCompanymuymal:eadditionat discrcriorwry profit sharing cantribttdons to the Plan ba$l:d un d1e Compmfs vaf•lrmanu dutillg that yw. Thel<: ad;Jition!!l di.K!<Ilru\ary ""'"l"'"Y '"n\ribudon.,l!!!J:t, ihllll be ailocatcd based upon i!le proponion llwl.)l(lur <lll;ible COO>p<asllllon been to tlle ellgi&lc ecinpensallou of all ottht l'lan~ Pollfci)l<tnl>,

'lOll ""!Slb<.Cflll'lo,l"~ on,lhcJ.,t day pf\hl: ~Inn 'lcllt al><l·~a~ <O!!>J>l~~ a.Yt;or of.~\:o · ~dng!h'ePlM:YilJirtO'i>o.,tiutdi.\sli•relnnliyCoti>p..yllll<n:~fit . ..Jtili:ianll'ltluiiott'f~filuil· je!f.• tn~6dhi00, if)'l.)ll ferminatoyourt.:mployuttntduring lhe PJaifVburdV!: tu Z~ttAinmcntor'yot.ir n~l rc:tirt~nt Uj,'l.!, de~ib l)f di!ll.ibility. )'()!) wiU $-l!:SI"C in tltc Ctm\ribulicn fur tbal~t t'e,!Prd)t:$S ofyOU!' d~te or t~nmnutimt.

Confidential information may have been redacted from the document in compliance with the Public Information Act.

A Certified Copy Attest: 9/2912015 Stan Stanart, County Clerk Harris County, Texas

I'or pprJlOS"" of !his-Pbln "»lirl<d employeo" IIWJ """"'lUI)' noo.Jrighly <qp>P<'l>;lt<d <tnplo~~· {Sceddlmtion'<llblg~ircoinp<ns.lllH-lo)'OC-ii>Secllon6o)·wti... co'i"''.~Yl¢·1idllf~"!,C'<l!"P~Y.Ii ultry tnsM.>tf. and !fumt1list<iun1 ovmidtt or othet po.ym~Q:· t«d~d b)' the ~~ ~lii~Jt iaarosed:Qn pr~uoiii>n <•t'lrn:uij,C._rur·~ COmpaoy, doe>nol'pl..,c tM tmploY"O' a:tola! <OmpM>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< ll<lji!St«l by the Dtj!irtm<~llofTrcorufY for cosl.qf.llving

.... intl<ll5<5). For the ptup<~SCoirnl"'laling .. Empl-'s 401(1<.) Sulury lkf<rrul CtmltibUliwu lo II¢ Pl•n, for a!locntiP@ Employe:t contritmrinns to lbe Pl:m 11nd (or perfonning lbe diGrimioation festt u set forth 0 under Sections 40!(k) •nd 40l(m) oflhcCndc, bulnot for, if upplicobl•, ealtu!atlng·1op-be•vy minimum N -~;_")b,utlt>r!•t~tlllll'l!>n.oam~oo<l>lll!-belirt!ll«ltO OOI~o~cddf!rin¥1~~pcriO<lW)tl)iolhe. 0 ·pJ>fj;~.fin Woli }1>U ore al'.iillc!fuul!·m ihi'J>j'" Mdli>r clii;lbl<i 'lo-mli!ie ~OI(kj 'Sof•iy JJ<t.mi! N Conorlbu<lons,<ll'ti!~PlliD. ·

?, ll'lTIW/IAWi!Lf

(a/ !IARD$HIP 11/STRIP(JTIQNS

tfyoubu"te • Uurtl11bipt'!nd a~ lnfttduffl.lru.U to meet nn humcdi!U(; and hca.\.'y linnncia\ Deed tucb o~ tuition JOr post.oseoondaty etfuatiuo (or a dept."Pdtot. fiORn:imbursed ntedlc:ul ~:iCIJ• purehu~ of a prim::uy tcsidt,ll~t. FuriaJ or fim~ ~P,We& fot your s~us", d)~IO,or dq)mid~~ aJW~~ .net~ ttt ,w~nl cvidio!l trOtrt ynur pr.t'bcipabulde-J)CO,: ~r a,mou'ittf to CaveY C.Xpcn$0' to WP.<tir<d~s;·lt JP:;~r . r<iDillMl r..tdet><;> wniob, '"~'<"""""'u!tl qtt<il.ift r.,_.euuqlty J..,~&.-iiUC!i<ll'l!i!der 1l<o•i•~:~.{i,f:?fc'!b< · ··Cilde-{dc<mn!ile<l wllliorrt-~lo w!i<th«•<he·loss-. ""''(IO%):~'o()'ou~iidj..sii;ll'il0st lneomc}; you "'"Y 11:qlll::lt in wrin~g 1o <II< Pl,.,Adirllnls<nu.,. opprowl ota.l!UdSiiipdlsltilititi<in ti01U tho Pfun in M nmotml not iu exCCI$ or your 40l(J.::) S::~huy do fermi conrributioM lo the l'1:ut, f.antings on your 40l(k}llul.nry del'crru1 conlribution m:~.y 1!2! be dbtributi(1n from tbc Phm..,. a Untdsblp distribullon.

In order to qualify fur:~: UR.rdsbip distribution~ )•au mu't re~nt LO tbrt l•l::an Admiuattatru: lltut your i:rumdiate ltravy 6n!lnciD1 n«d canru» ~ rtiievetl 1hmugh liquidation of your flCTJOUI usots. ''"PCllding 40 I(1<) sob!')' doferrul <-ontributiuo•, Gnd ~"'""""''"'"'· l! sbould be notc.l U101 upon •-it>tof >llOh.a Honl.rup dlstribu~on, tb< ufel»>borrulcs oflhcT"""""YR<f!lllo.lloo>tm<i<rSC<:tioi(41ll(J;)oflb• C<idc""!"iteilull-l'O*-bc"'m!l'kdlromll141d~40l(l:)"'11llyd•fmal~odlll~loth~Jtl!li!f<ll'e;~ ot~il>. (6) oro.Ua, Th<~<•llir, .Yil\i ma~ lt>cnti:t lb< Plan on <he Om Enity ~·· (!ho tom day or i<lllllu;>; 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 apprm<e lltc wifhdruwa1 from lhe.PJan of:ut amount not in CXOlSS ot'your 401(k}:Slllllty defcmtla<rounl in tbe Pl•n (your401(k)sobl}' deft<m! conll'ibwlon iu Ill< Plao •nd thec,.,incs thmon).

(c) lf'lTHDR.41YAlS AF[l!R NORMIIL RETIRE~fKNT 4GE

Al.lhe d!scrol1ou ol:!bt Pl.,,-A<lminll!nllor;lfyouhove anall<ediJ'Olll'N<"lll;1/ . ,_,;--S<IIIo<\lPI<>f!.d,hy'lf><..C•~•.""ec <•tl}' Pfan Y•=t·)'<l\l.tnO)I<'"!~!".'

·:t~ut~h.i; th~ tfu1ttC.d'tO WShimJit: alhu a. paitiun of ,CtrC A~t n&hitlCt:- in \1:'

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 ,... {'1 i'l 0 {JJ F..Y:CISI! TAXES ... It libuuld h< nnle<l thnt lite !memal Rl!t'alue Servi« imP<""" • len HiW•) porc<:nt prtmarut< 0 distdlmtion <><i>< lOX ott ;ill eatly witl!drowols front all quallf..d plam tllltt arc lnclu<lible in intan\0. ~1

., Aruo'Urlts \b;nt·:u-c nnt mx.cblc ~uu tbcy aro rotied om into an iudiv.iduol reth'emcnt 4COOWll or another qunUiicdplnn>lian not bo l!l!bjcct to lhio ex<iR: tu. s., oub.<eet!on.(crflt1nw.with tup¢1:1 !(l'mandalocy lrt•""'• C, withJi<)hlillgcn dlstribu~ooslh4! ore 1101 dirr:ctly lm!l$fcirol'to woll!ei <jUI!Klled'ttlirem<!!l)ilin . ~~':P~~ivith~}~.fCTilC»t accttuirt.

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Disuibution.'l' nltldc on or .1flcr11U.ninment o.f ote lifty·nine ~fld nne-hAif(5911>);

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 l<l'6i<lt)'<'rulli:)'or jointli!lo e$<e!Onoy of yeu ..d YO\If '!'O!iso; Di!'ttihuiiom whlch ne ti'Uid~to 1\ P:nticipMt::~ller sep1u·::.fion frum .sl:'rviW. nl14r onaJmnent of aga C'aOy-iiw {SS), nn nccm.mt of e.:tfl)' mire"nrc:nt;

PiD:tributions rtom 1be PJau ~tittletf witbtne.dic:11J ~xpenscs to the extent tb1U l.hc:drpeme$ t~«cd seven !Utd uue·hatf f1.S%J pete¢1lt of ,your ttdjl,11tcd. gro~ income •rid. th~ore. \ll'tluld be dcductlbtc mt your iudividuoJ htcon:te tax t1:n:n11;

Oistributimlt fio!lltbe:'P1~ to an a\tc:ta.atlve pa)leo \lnd~ra qu.alifie4 &mestie·rcl"!'tio'm QnJc:r purilumt to a divntt:c-; Md ·

Dt"ftilttniollZ fmm the Pl:m which an: ;u a result or your tkfctrias in e:tccs, of Sixtffil TI1nun~nd FiVe Hundred {316..500) DoUus in 2010 and 2DJ I (•'rsur.h hi!{herdoUM IH'nlltllt( in clf\,'\1 in the y,:ar thu dcfcrraJ wn$ 1nade).

Undct«t1ai11 drtuntst1nc«, distribu!.Wns. uf-10ltkl 'i,;l.lary defcmU eontri.butioM 10 "q_uali~ (j('d ~rvists' c..'\11® to nc;iw mi1illtty duty.

1

(e) !!ifliblfJ.m:w:sp COMPHNSA TJDN .:fMENDJ)f}IN'rs 9f.19!J1, _________LTA~.~~~~~1TLUH~LhhVG' .

If tho disUibution is notln!osf"""d difctlfy !<I •nother qu>lifi.-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<d ~U!< "'"'"'"•teditcd II> 1""' JI.<OOIII\IJ;·all~f!MV•lll¢<>•~•• 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!"vid<d wllh • forru oowhlc.b rodc<ll!Mtc •ll<:nclld!U')',J:lowcvcr,jt)"!u il<IJ11>m,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.oul<o De~L D"'th b<rtofif<' l!1liiCt W• Pl•n t<UI b< p1Hd lo ai:JGO'rda.n« wJtb lhe li'\O.S( C-'Url'tDt bcncfiatriJY ddl:li,Ulndoil.-farm on fife.

ID. !}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'<ion1!jb!llill/li·•• ll1< i~llll and will '"'ndnue ui ·r.«k!! yo:U( olm,.. ·~~iiji:emploj¢1 cDnlriirutlt\nl 1110<!< to lite P\i.n.- P4}'!bcnt orb,.;filll, however, will be pos!J,..e<f until your""""' r!itire· m.cnt fJ(lW~Vg", if you ar.; a fh'e (S%)p~rc::n\ ornwtc 0'\\'nCr or lht Ctm~umy, your benefits must commence by t\prit 1st oftlte catendar yca1 roUowl.ns UN' c¥k-nl.!11f )'t<tu' in whic.'b )IOU tum u~ ~\'enty and one~ MJf (10~·~). Howevet. once you rdirc frun1 the compuy, yoor t\CL'QUtlt Bali! !'ICC in tho: J'hur ruust be dbttib· U1ed.

,,... ;:.;.

Confidential inrormation may have been redacted rrom the document in compliance with the Public Inrormation Act.

A Certified Copy Attest: 9/2912015 Stan Stanart, County Clerk Harris County, Texas

(") (I) (') 0 /J. TF.!IM/NAT/QN OF EMPLOYMEhT c. You arc iihY.O)'J one fnuulted (I 00%) pcn:enl vested ill )lfltlr uceount balance in the Pl4c, A! sueh. 0 Uyour W1Jllo)'1nonl is knninated~ you will be tntiUtd {U rt.cc:ive one hundred (ion%) percent ·ar your 1c.. l:1 count bnlMceJnlfie PfnO.

... ~

lt is itncnded th:U the Plan will continU<: indefinitely. HnwoYer. ttw Compnny tfo.es rekt"VC tltc right to lennint~tt tite Plo.n in the ~Vent ofad.verst butinesi: conditions or Jbr atbcrbusitNJS reastlnr, f(lhc Plan 0 ;, tcrrninuted, tbo nlllOliDts cn.'dltcd to the F.rnploy<r Contribution Accounts ot all the P1.!1loipsnt• will b<· N tCIM one hundred (I~"'} percent- vested. 1'ht Plan ntlly :~Jsl.l be amended at any time.

0

N

U, JNFORI>f!fT/bNABOUTTlji(JM

'!ltc T•~ il9,l!l\Y.:Olld fJ,..f.~bllil)' Aol ITEFM) _, Clll<:<cd I•· 19821!114 blollj(bl ~!!Out majbr clJ••~«:iu lhc "'tirciliimtplm or... 1M pmol5iom A>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<d by lhcliigllest outiil!!ldlo¥ balllll« of yoor loans Cram the Plan during th( twclvc(l2} month p<riod endfugon thvdoybefo~the foan bmado.

Pattlctponts whu tep:m\11: (flltn $C(VIC:~ \\lith l'ln uu~1..wding loan from the Pbn witt hAve the <tptidn tv c,tlher repay the J.oan in itt entirety ttpon .srpArotion Ol' w continue to m.nke pPymtnlS to \he Plan bll.~d un the foo.n•.t amortizndnn schedule.

r\lll<»ns nnutbt•dc'l""'Cly...,ured. Aloan•ll411bcd""''<:d tol!<tldcqWltcly-iCihc •lll"t· (!lt,C omount uhU suc:b Joa!l' to ~lfdOt'!l notexcud tl\C VC$tc.d t1nltlynt of)'Ol¥ Ac:¢oUnt-~•la~~n:tbt~·1'b:D ui>!ihe wlu.>tlon·dnte lmme<!Islel~ pm«Ung~ ""'" Iltit any lln\o •ucb ~~te!ililotint·ofloon.d~os

Confidential information may have been redacted from the document in compliance with lhe Public Information Act.

A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas

Deputy

'II' rrl (!) 0 ext~ llt.Gt llmit.lltlon,; then dx Tnntcc-s tb:dl require )'OU fo eitbcrn:p:\y the amo\lllt crto :~;dtqua\l::l.yucut~: 0. fhtn amount tl! fktcnninett by 11le TrvM~'·

0 YOU WILL IJE RF.SrONS!UI.E FOR. AlL FEES !NCURIUiD Wfnl !!ESPI!C'l'TO YOUR Al'· Pl.ICAT!ON TO T!l!lTIUIS'fP.I!$ TO IIO!ti\OW FROM THE TRUST FUND.

...t!i

!N.VES~~~-~~~~:~~~~~~~o~~~i_E~~~~~ '()' V:"!Hf.l!rwPEC'PTOtoANll FI!OM THS!'LAN.

0

16. I!QLWI'li/t.Y 011 Tll.tNSfERS

N

0 tf you ha.ve l"C«iveli or are entHied 1o reeei~eo a distribution from aoother qualified phm. under~.~­ N t:~in «tndition.~ you mny be cntiltnl fa haw !he.~ l\100\UtiJ transJorrod directly~ Ute Phtn. You ru:ty :dso ,.. be entilltd 10 tollove.rltt'OO\Intl yo-u corr<atl)' mainR:tln: in u rollover Jntllvidual Ret1n:mcnt Account.

If you Z!ftiwtcm!l>l in availinsyonrselfofthio P!Jo opllon, you sbo)l!d•o<;lifyJJ!•.PII>l'/l.!lm~· loz.i.......Uota}fln ui)I""IO det.,.;Jiowl\<ther dio O\nOW>OI')'O<j.wflilt 11>1ied OV<r'4rfrJilif(ci'it<l..j,ut1ilffot atieh trc:~:JmeJ·n.

::•;, Allaruou.U. whkh.,. rollOd ....,., or "'""ferr<d into tbo Plan wllfb< oc• hundl<tl (iOO%) p<rc<Ut ve!lil:d at :.n limes llnd will he mainloined in a scptfrl1c bookkeeping nccnunl in your oame. Upon request, fiJ<" Plnn 1\dmini&tratof win pro"'ide yttu with llJlflt'1lpriure clectitJQ fmms-.

/7. l:&!fl1£11WiT'S M.U.'AGEMENT ACCOUNTS

Th• Pl•n isinttttded to """'!>lY with Soelion 41J«e) of tile Employee R~'"''

Ac<of 19.74("1llUS~"). A>.~'fmt.h~~'~< an oppotiUIII\y:!t>o~oose·lil>tll .

In''""",Vc;,m<m

Sccvri11

"!!ll•!i.' ' " ' . .. .

Pl:ut, your ICtmtfll xJtafl be ln\Ut'.!d in tith« n lifc-cyck fund, w:gct rtrirt:mcnt dttc f'und or 11 bliaru:ed t\tnd, 1.1nfil )'llU d~!de fu provide iMtniCtil)~ u to bnw you n.crount sbHII be tnvgh:d. Undu S~tJon -t04(c} nf RfqSt'\, fidm:i::trks of your rfun nr~ rcUe'ttd oiU.ability fnr any louc::s '4-hft:h 11ft: the dirce:hnd necos~u:-y tl!'~ult ul'investn'k!l'lt instructious gif'tn b)' PActicil"tmts.

Jl, IIOM/lSTlCRECAT/ON.YORDERS

Oenera:lb•T )'t»rt intm:stln your Acc:ountBah.oanmderlhel'taru::tm~nC!;•~ .tl.iet1nt¢. tn.eJJ•i.~(!~ ..

ile..,ot be ,.ld, ui'<~ >J:«>~_for >~o ;j!iwo aW.t 4rolh~•d!fll.Jl!!;f$n<rl•- b!~lli\ltl~rr•ur.~•· "•.' O®llt·llalanco IJ.prot<el<if. fnim·orOdi!of! ,.;Jtin!!:ll$ your Aecoll!lt Ulilanc.•n:m.,in•'• portof!h<!.l'!mi

HO\\'CWr, the Plan Administrator nu)" he tequ;ir«l by law lo ~&ni7A oblii'll.tirms you int.ur >\ri a fe.<Oldt of ~nutt ordettd ch~ld tuppon. cllmnl\)' p."Jym¢nt.5 or ptoperty setd-c:ment 1lS n result oh divor«: de-- «te. n!e Pkln Ailininistnlnr m.un hooot 0. ••qualified darntt:tic rttb.ticms ordtt''~ wbit'h i:HJ~nned 4$. deere;; i)t order iuu¢d by ut;autt t.hfl.tohligJlft6 you !u payclliJd $uppnrt or alimony, or otherwise: AUocnks a pmtion ofytt\!r UJt;lS in.tbc filM. to )'(ll.lr :Spt)U$8. (OU'Uf:l SpollSC'. tb'ild Ot o!hcr dJ..jlt.r:ldeilt ff a '1\tll,]j(ted_ dwne~ rel<~Uans QrdtrU received bythcPI.nn AdmlniMNtor. aU or::~ panion ofyourbmefiunl!ly be wtd to ntbfY tbe-obftgatiOn, 1110 Pllln t\dtllinbtmttli' wili determine tho ~lidily .,runy dumestic reliltitttll;.'u·,dCi-rrscei'ved.

.• 7':

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

Iii [") (') 0 Voucr y~Nrbcndici'ries btl~e tb&rig.ht tu t.'cmi~otohtoin:. without ebnrgc. 11 copy o(lhe prueedurctthe (l. Plnn A.drnlni.strnfl,)( U.~C$ in dd('A'Jnining lhc 1r"alidity orllny dOnlL'Stic re1tHi~$ un.Jer il rtceivu.

0

Iii II. ~'WliS PROCBDUl!I!S

Anyrtuul'nttitipanlor beu•fltiOI)'cfo Ptrtidpant("•l•....,'rmsvmoke •1<!!u~for ~lao bent, ".~rs..hr \ttli\;ctirt~ ~ wrijteb a.d*:c•=UirtS' J\:trtbst.n;h daJm fnr.~elib,UJ ~,~f!i)~~VS~r The notko -.Sh:~ltin~tcat~lhc Mn\.e of\hoefulttwtt ~l)d ~typt.ofben~Ot ferWhiQftlhit:cldm:l&-ni~46- ·

"0 Within ninely (00) dn)'!' nf receiving Jht W'riUt1'1 nNice~ lhe Pbn Adruini~lrlllor ruuJt inform tbe cl;limunt Wh(t}ll.'f the C)itim WfU be .sari1fial Ul' Wbull)' Ut parliDJl)' denied, unlt$5' special CireUm!tMCCJ N req:uiro on ~:xttMion of time r«processhtg tb¢ dnim. lfs\k.'b an eAtentffin of\iJm for prcceuJng i; rc· 0 quirtd, writltn mrtil..-e ufthe Dxle'ns:fon shiU be fumishetllu the olnimantpriorto &be tcrminatinn ortM initial ('l

nln<iy (9Q) dny period. In no CVfi11Wll !1JCh <xtm!lon ex.:eed. period or nin«y (!10) dar.> 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<mat; tbc notl!!o. rh'llll'gtronltthi> 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 d<ioial'to1he Pfi·n:Admloistmmr Cor ,..,;.w, '11\e ~ucst fot arcl(l.W-.iuu>tlnl i~·ivrnloi:'"d e.omotn liN r-·tbr-wldi>~·Ol!tk elaun is mOilc: 1h< •:Jl>it•mm m•yr~)ll! ~I"I~J<aat\lh•s.tl\0 Plan f·"PWJlO.a. ofpnJptrlilgbi$ rtqU...t ro; • rev!..,., Tbe Plan Ai!minlin-.liiu:irbifll itiview'IM ~•I of t.be ¢leima•n and. if nec:tiS:uy, hold t1 ~earing.ut wliiell the elnimaut mar presenl bts 'tc.\st~oa fot obJ<-e-tiu:g- to thC'.dcnhst (l.ffhc claim,

The l1lnn AdminBtratot must rcmler l:l dcei&iott n:g_urding the appcul of the claimaor not' lattr tban sixty {60) daf$ afh:r the clnimattt·~ request for nwiew Wl't n.-ceh.•ed. Ho\W\'cr, iftberc is n need to hold a hnrin;, A d~ision mtt$l bt' rendered nu lntet thao one hundred nnd twenty (120) dnp after receipt l)rllte m{i!J!!I;t fur review.

The <l<:clolun on rovl<w of·th<Piao AWI!lul~tormun b< in writiog; ml"t lu<{llili:ftp<:<ific """""'

for. the d<:driori n:od must nmi:cl'rlctl'nce to 1M ptrWiull Plan provil:ltonJ on.~tth·?l~:deeisi® #4S ~li;

Ali u pllllidj)Mt in the Plan* )"aU m cntitkd to ccnain rights anJ prou~ctt.o!l:t: undet flRlSA. the P.mplo)'\"e Rctirlllll<nl !nco"" Security A<t nf 1!174 t'ERISA'l Elt!SA 1>rovld<J !bot all Pl>n pa<licipan"' ~ entitled ro;

E»::nmlao. without chlltE<~'• ot ibe Tn.meeS• offiL"Ci nfl\1 at Ol.ber~l~ef,ll<n.1l~ FU® as: work s!ltt eod'uw'ol1·f>ilil,. 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~ ·:;

!D l"'l ti'J 0 C.f!!•lning apm<111>, MU • top)' ortbola!.,.laonual n:port (Fonu SSOO Serl..) Ulc<l by ll. t!>c Pktol<ilh the U.S. f)cgann>ent 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'kl<l!<tonSi;iU.~~Oti..'t'hlt''i".l-' tml!~bo.~•q•~"/-bt~(IJI'•Ril ~ •"91~ .. ~~v.\l;~,i!iaa~c'cvetjlWd,. (12llrnmlft<: 'ni•"P.Iob'mu.tpmvilllrlhistal<mentfroe·of-elmfge: · 1

lu nddi!iDn. to cn:aling rights ror pl:tu p#rtkipactJ, r;JUSA impo~cs duties: \1}1011 tht ~ph: who «R reiptl~U~ible fot' !he ~l~t'UtilJn o!the Pi.-.n, The people who o~ral"tltc Plan,c41Jed toOducil\ries" of the P1wt, h.\V{" a d\li)' ta de so prlldrntly and in lht tntCf(.ll <tt'yau and othct plan p:utieipanhf iind bcnofi~inries.

:N:o one, including. the Company, or any Other ptrSOn. m11y firt: you or otbcrwi~ d!se:iminato egnfus1 yuu in. any ww.y U) pmvcut you fron\ obraWng fl rctitt:iQC:Dt benefit or aueisins j"Q\\t ri!{ht:i uud:cr ERISA.

!(your c!Oin\ cOr. a retimn~ bt:J)eftllo d<.nied or i!l"OI'01l.,in whole ot ln p(ll1.i)<>u.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!ls<riP!tlll>l¢'ii;Aini< f<n:.aSNrllng yeur rlgbll, '1oU>nS)•.it.eli o>rlolo!ICe fi<nn1Jie·ti.S. Iiepilitmi:m of;Lab\>f, <ir')'!\<) fii#· IDe '.Ult In. r«tml ~®rt. The court wm dtt:ide who should p:~y court C0$1$ and1eaul ~. lf'you tire' I'U<:tcUful Ute couff mny order tbe f)CC"$0tl you Mve sued tn pay thUt~ t."Wb t~nd fees. U'yuu loso. the court 1114Y ord!U' y-ou to pvy 1bese eost:c and tees, fure-xw-n!ll!!. i!it f'in~ )'llm' ~!aim t'rivoto\l!,

lfyou have any questiMS 3~t ymtr Plan. you lhould C()nbct 100 Pl<1n AdmiuiMrator. If~ lut.ve im)' questions abour thii r1atca2ent or about yow rishtf Qfldcr ElUSA, or ifyClu notd e:ui.sbUtw lo obr~ining \looill\Cfii..;-.Jium lhtr PI !'Ill Adrniaistnrior.you sboukl~tad: tbencweM An!a Offiee afthc-Drnptoy;:.¢ Jl.ene.. li~ ~¢_F~ty ;4min[>tmti~.or t1.S. Dtpat1.1Mnt otLabort listed in your ~!~Ph~ ~irtt1(9!YOt,tb~f}iyYitin. · ~·:1'«~n;c.rA$S""~<,.<Il/d.lOtii•iri_oij,;f~lu)'lt• B...,fits Se<l>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<!T Q.. .

•n.!

Uenefits 'St.'Ctlritr t\dmlnU:tmdon.

PJUSA.by ""lling !he pubUC.ti<llis boUinc,oi'!he l!ln1i1DY"

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n 11. PUN T/IRMINATfON TN8U!IANC2

Under the plnn tcrmtnslion lnsttn.l:nce provhillnl ofERISA., the bentfilt provided f11r und~rtbe PIIUl lire oot inS\Ir«J by !he Jton1dtm Benefit OU411Utty CotpOt"at.itm, llOO K Sttcd NW, Wuldtlg~on. DC, ~tJOO,S..

'if 4026.

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N W!i!14Nii!MCE 0 Yau or yovr beneliclaries: mny tw cnrirlcdtn cetfllin hen¢fitr und<r Pian \4-'ith respec.l to peri\x:!s duting whicb N )'tlU p¢rronnqu1:dified mHitnry service. Plot:tc c-onsuh wilh !he Pl:m 1\dmiiJist:rruor if you think you ~nAy be:

Bll"eetcd b.y tht new ruler.

TillS BOOKlfiT L~ lNTENOF.D AS A GENERAL SUMMARY OF THOSE ~ROV!S!ONS Of n!ll I'LI.I'OF P!I.IMillW OEN6!1AL·lNTfREST. fT !SNOTPARTOfloiOROOES ITMOP!FY ANY PROVJS!ONS OF T1lE PLAN. IT OOES NOT ALTeR Ol\ AFFECT IN ANYWAY TI!E IU!.l!!tSOl' ANY PARTiciPANT OF T1lE PLAN.

Tlil: p~~:f~~~~~~~~~~~~~~O~~~~~~~V!NO ANYtNTSlms! IN Tl!F. VLAN IS AVAILA!llll FOR F.XAMJN,\ T!ON AT li!E COMPANY'S PERSONNEL OFf !<:::F. IN I,!VIl<G~TON.

12

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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

THJ!: GMlj GllQIJ.I!,bL.C, SALARY SA \'INGS PLAN

11nda::r l)ur ~~l.c:n_.,p:Hticip:utl$ ~elf--direct tM In~ ofclJ «~:ntribu!lom and' tlJ~ llUilnrolp;td in t!lqt nto.tllnts. ,\o.:t'loiiu~ly, it ~stbc!.intout'ofthe Plon And its tiducJariu·to tuuiply }lli~·'tht'·.il'I'Uca'l:Jlti:..PrOyt...

. . ·'~ino• .ifiicttinn 41l~I<)<J(SIUM'(thol!mplnyo~ R/Jiinom.n! 1u<:llme &;>•rill' 11<:1 ur.l974)•. \Joli«,S~•doli ';)

;,. (q04t<l oi ni\ISA;·'!!llmn'.s.ofyoutl'WI'd.r< t<li<>v..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 dh<ers1~ N ficntion ot rjsk nnd rc111m tbo11:acterittfes.

Under »•• Plott p!>l!lolp•nlll are. •llow.d lo uw.,lllt<ir funds In on ll\ Hocks, bOnds, mlltllllf ftllliL!. c..h,dc,); Ypu ...y do-36'1!11nSll<UO!i$ ai· voa. 111.,.Jti_ven•Iillh........mi <irn~•ii•illl• nnd any M~~ll'aad tNt.· cl!tmgr)or lhollitt!ooal·NMDAQ rr oV.rS2.QO, You ,.. Mrt~: ......... \lo not pu\ the money In us.e, it wm be put \nlo o MOt\C)' Mnrkct P'uud.

The ('Qmpan.y nnd Plan f'hhtci&rlcs wiU tnuli:r. I'll t\."'lrtuffilble attempt~: tCl pn:vcnt a prohibited invulment (ruln (l~unlllt! ruul wi.U notifypll.l1icipunts b ti.'IOO ;n nny proMhitcd invettmmt l! discovmd. Rowevcr, ityt~u haw :myt:ol\1."¢1'0$ reg.srdiug ~ pnrticut::sr lnmtment, pleGsl' eontscl 1M Compliance Pe~rtment.

Pll!tl~ note that cc;m.tn"hulious lMdc to lhc Pla.n 11ft! iDitt1:Uy ckpc)litett in your accwut b) • o:un:;:ey p:utr\ret (un~t~nd:temaiil,itt:tfio moru!f Jrlir.ketf\lcd tuna until )~u·dedtl&!to lii~ 1$0cb n.~\h:lh. i:.10tbet: l'ncstinent.

iilYul,;;••tlotorhullno. To Clll!lply wllh S«IIO!l 4G>I{<)<>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<ntsiblt fO( ygur iAvc§\!\u:nt dcclsioQL-

11>~·~·1.,\(fvll:o, Silt..,nonha:U..P!an Admllll>irul!tt(lh<C""''""!f.PlM.I~<·~•r~-r~•: .sl!ilHOi'th•in~llll<nip<:ti..""'o"'~f~ (Yri& odtcled1iy<ocb pzfli<iJ)>.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)>b<tli! ;: l · · · "!~•l0!45.1.(.1.JO.thc lnooln•mb<il'al (97l)333·5ll00, or!ho spetfcl-l:tr•• nuttillot ol (9H) 541<-'ls!r!.

ti\>ittg$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

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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<!.eild dl:d\!tte4 ftOm )'Our ~•i'unil<f.\lk !!len. !!..or<> 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<ET POLTYN MCAJ'U,

DEC!.AUD

~R AfPROYfflG fQliRDI AMl.NI)'[Q JNY!NTQBY. APPRAISJijr.g::N! & LIST

~ ~ 111e fllt'CIDHII FCNnb: Amended lllv•alory, App!'IMIIMnt UKl Un oCClilmt oflho •bo~ U'\ ,.. nlaw N.'flna bun nle-4 ocd pn'I('Qicd; U,cn hnht& Men no vbjcc;tlont D\adc IJ\CftltD: lAd lh11 Cg\111.

Mvln.a c.ontldmd ~nd oumlncd \M sunt, b utlll'kd lhtl l, al'lovld t.cl appn)VC:d,

tT fS TlfE.RD'O'R.E ON)tRltD thll \he forc~rC~Ina fi)U.rth AJnc:ndcd lavcntory,

Apop'lbCmCI'It ~nd UN of Cl•lm• LJ La 1U rupocta 1ppcvwd and ORD'£R.ED c.ol.crDCI of record,

.... SIGNW"~ 2/~ordl}c?? !v1l ~IN~~

APPROVID ~S TO FORM:

Sla&O SArNo.; 06l66110 Colla K. J'rttmaa t!;:!: =~~~~lh• Ettetl or Jace1 Poll)'ll McAlte, o~a.od liOMilnSrn:tl Rlcllrc.O»d. TX 77469 Tdopbooe: {211) l<i-1711 p..,lmJir. (211)l41·lll7

-~ I d (rom the documtnC fn tQmpllonu with llu Public (nformallon Act.

Conndcntltllnformtldon mt)' hnr b ern~~~~ c

A Certified Copy Alles!: 811011014 Stan Stanart, County Clerk ·!"'1-1111111~~~--~~~urll County, Texas

IX r-.- .......... ....1n Arrnvn

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

A44 o Sterling G. Senechal Ill Deputy

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"\ J$KUr1'lllS 0"'-" "'' C) ~ N•3Pf.JJ5 ' 1!1

C) 0 TN Tlf£ PROBATE COVltT

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CJ ll. NO.I J.u!ET FOLTYN MCAnll,

Cl. 'I N DBCUSED RARRIS COUIITY, TEXAS 'I

fOURTH AMJNPI.P myzNIOJU', AUJU!Rf.MlJii Alfi) LIU Ol CLAJMS

Dl~ orDcal.bl MtJ a, lOlO n.rollowlqba(oW1baCDdtdtuJI,~udc.cnpl~ln'NIIDryandAppnhcmcnlofall

({) rNf propori)' tiNtled In lk SUI~& of'Ta~ ud gfaJl pmonJ JnOpcrt)' whaevu altualtd, l!i~l•lhct

P'' with 1 1Jit of Cialau duo 1nd o..W.a to tlab P.sttw u oflbc. 41" ofclutl\ wh.ldl hiYo CDmc IO lllc c; powcukln orlcnowJcdp or,.,_ un6aslsncd. ~.1

pro;raogy AlfD AlPRAJStMENT ..., CD (. ,..

C2MMl!NII)' FROJI'IBD'

l. CASSIN BA.NKS1

AcQNQIIWI WdNtioQ! 1M OM9 OroQP, U.C AGC.O~fnl<: Brvkc.nt&•AcCCilMII AcooWI"JCD No: 11XX • ua:621 ToW....,~ oruacr: .sn,Tn.42 oo "'II or deW~ Leu Nn'i"ttllllpO\IM lh&JO:: l<ll5,174.71~ Co-o'WII'": Noo• D.,;Cidca~t lnlcrul: SOtto

ACCO\Illllll 1A11ituUon: Tbo OMS Group, U.C AcQxa~t type: Brokaqc ACC0\#\1 AcxowltiCD t-lD: na xn:OOI

4

TouJ nNe of ~.SKI: S~772S:Z ca dw: ordcltb $))1626

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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

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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: $<Z94.11> 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<ISI,Ill.46> $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

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3. HOUSI!:IIOLD l'tiiUIISIIINGS;

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ma.sn.ts oaMirotdutb

SEPAJtATE FROWSTY

I. REAL PROPERTY!

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A CcrllOtd Copy Allest: 8/ZO/l014 Stan Stan art, County Clerk Htrrls CaYnty, Texas

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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

A4d Sterflng G. Sanechallll a Deputy

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= Co-owurs: NOM Do-1•"""""100!\

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ConndcntiAllnrormaUon may han bcon ndactcd rrom the doc:umont In compliance with lhl Public lnform•tlon Aec.

A Cerllnod Copy Atl.. l: 8110/lOH Stnn Stnnart, County Clerk Rorrll County, Tesas

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

AAli Sterilng G. Senechal Ill Q Deputy

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Cl .. CASU IN BANXS'

Ac;CO\II"'III lolliM!on: Th• OMS O<ou!>. LtC A.OOOI.IIM t)'pO: Brokmaa: A.t.cDUrtl A~~'No: IOQI;.a;:t479 $3,440.01

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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%

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/>. Certified Copy />.tltot: Bfl0/l014 Stan Stanart, County Clerk He rril County, Teras

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A CertiOed Copy AIIOII: 8/l0/.1014 Stan Stnnart, County Clerk Rarrft County, Texu

~Jr~ANwrr

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A Corltntd CoP)' AII<JI; 8/lD/2014 Stan Stanart, County Clerk Harris County, Ttnl

-~td¥ !lNw'flY

"'""""',..••oln fl.rrnvn

Doputy

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

01/01/ZOU IIZD !120 PAX 7132243111 Lav OHi.oa ~002/0p

06/07/2011 10:58 Mitchell &Duff Attorneys at Law fmzB1341S517 P.002J011

DROBATE' COURT f

No.3JI6,93S

IN THE ESTATE OF § lNTBE:PROBATECOURT §

JANET FOLTYN MCAFEE, § N0.1 §

DECEASED § HARRIS COUNTY, TEXAS ll'l

AGRUD ORDER FQR TEMPORARY INJUNCTION On Marah 31 , 2011 the Applio:~tlon for a.Tcmporal}' Restraining Order o!Roaemary Po1tyn,

a.s Adminiaenuix oftheEstatcof1anctFoll)'D McAfee (the "l'!.ltata'?, was beerd and granted before

this Coun.

On Aprlll41111d MayS, 2011 tho Court ultllliAtoly ordored tho Tompor~ ~training Oroo·

bo ex1etlded and Temporary Injunction hearing be rcsebcdulcd lO Jime 9, 201 1·at2:00 P.M.

On May 18, 2011 tho Application far li. Silpp1croen)al T~poi~ Remaining Otdcr of

Rosorna.ry Fo1tyn, 11$ Administratrix of the Estate of Janet F'oltyn McAfee, was heard and granted

before this Court. Tho Temporary liljunctllin·hoaring wu scbcduJod for Juno 1, 2011 at 12:00 PM.

On June I, 2011 tho Court ordered tho Supplemental Temporary RestrainiD& Order bo

cxtonded,and Temporary I:ajunction be extended and Temporary IIUunotlon hca.rlng be rescheduled

to June 9, 2011 ut 2:00P.M.

On Juno 7, 2011, tho partlo! apd to tho entry ofa Temporary lnjuootion, and to pa.93 on the

hellting on June 9, 2011. Thia agreement is ovid01:1ccd by counsels' 5lgna1Ur08 below.

Tho Court finds thnt all necossnry prorequlsites oftho law have been log~~lly satisfied and that

the Court bas jurisdiction in this case and ofall the parties. The Court finds that Rose!Illll)' Fo\tyn, a.s

Admlnlstratrlx of tho Bstatc of Janet Foltyn MaMie, Is entitled to a Tompora.ry Injunction.

lana

~ EXHIBIT ,__~__

Confidential in formatio n may have been redacted from the docu ment in compliance with the Public Infor mation Act.

A Certified Copy Attest: 9/29/201 5 Stan Stanart, County Clerk Harris County, Texas

A--<~d.o Ster11ng G. Senechal Ill Deputy

·.f.·· 06/08/2011 DD P120 FlU 7132243111 Lav Office

Q'AX)2813415517

llJOOJ/011

P.0031011

Cl Cl Cl.

sorvanu, employe", agenll, aery~~'l\l'~~rs, auip, rcp~tatives, 1111d anomcys arc Ol'dcred Ol () \fl

to immedlatcly ceaso 1111d dcslat:,~tl)i:l¥~:.nd cootrol of!he following ~ooouotJ acd property;

.... ·;mi!!:Gl.i.GROUP. LLC ';;:~ ::·.j

I, Ally and all:!undl i~ C!M§ Group, LLC accounts, Lllcludlos but not limited 10 ..,, .,,:-;.::1 .:-;:(::

tha following. all of which an prCSill!ledtl!:'~on~ eommlllllt)' fUnds and/or f\lnda bcl011glng to tho :i:: ·..:

Estate:

·-:·

11• .5SH~~8 . :, :::.:

:::· ··.

b. sSH-os6oos

.·::.· .··::!·

c, S~6606o6 :r .

'

•: .

'Ill d. SSH-003612' JO .I c. SSH-034914'\i·:::; ;.;::';~~,.~:·:~: , I"Ul f. SSH-850012 '::'· I 8· SSH·04247!l

b. SSH·008207

I. 989-03491

J. 996·66060

k. 989-03500

2. A:Dyaod all funda in OMS Group;J®'~unts, all ofwhich are pre811111cd to ·: ,,, · ;ij.i :

contl.io COIMlunlty*nds and/or funds belonging to lli~~~u.. (l)io thellll!liC ofKCillleth MoAAe ·. ~· :

.

I.

or J1111ct J.'. McAfee, Individually; (il) KCII~ MaAfee,:li;if"tiili'~;ll. MeMo jointly; (Iii) which ···· ·' 't'

II

lllll1lll9 one or both ofthom as asi~~Datoey: (!v) which ooJ~fulicrJ~~ ·.· :"'·'·'•' '

lho care, custody, control, for

!he bcno:!lt, or on bahal!ofKCIIlleth McAfee and/or J111et ~~M~':~dlvldually or jointly; 111d (v) A~..ST...,....,.Ifll.. cftaa hrto \i:r::::(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

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 !<i#be Estalll, (!) ln the name of 111 ·:·~;:~-!~~;\~:~':·;:-:• ,...

Kcnolrth McAfoe or Ja11et P. MoA1Ce, lndlvidually;ilM K.cnn~ McAtee and Ja11et F. MaAfee \i1 jointly, (Ill) whiob DllllQI one or both o!tbem as a s;~f:!llr.·O~;~ch conlaiu.s f\ul<lf In the em, ···:···:~!:'····

i.)

custody, oontrol, i'or the beae1h. or on behalf of Kenneth McAfee aN./or 1anot F. McAfee, t\1 al Individually or jo!XJtly; a11d (v) under any address related to dth.cr of them, INch as a previous ()

,., ;0:\ residence, relative, rcpn:sontatlve, or attOI'Ilo/s addrese, orQC1IJ'lP!IIlY whlc:h did b!IBinosJ 011 bDbalfof

either Kotmeth McAfee or Ja11et P. McAfM or .;;..l;i~ii\vl:a:~~~ In whole orin part byeither or bolb 1,0

o1'th81l1. Tho addresses Include, but arc not UiliHCif~:tlllli!buowlng:

..:; :,..

~ .:,;.. ~ '

..,. ·!: , . ,

Ul a. PO Box IS63S2, fiii\ii~ Texa, 77266 0 n:!" .: ~ b. PO Box. 46Q7~};I~~~ Texas, 770S6 In o. 6650 Fairi!;ld Stre<i~· fi~ustap, Texas, 77023 I ::;~. •:;.:1 d. 2119 TB4loy Ho111t,iip, Texu, 77005 "' ~

BBYACOMPASS BANK

:.~:~;ii::::;:;-. ; -.'~.~;/'

;iJi:....\ .:P:

s. An'/ and all flilldl;i\i;BBVA t:·: •... :·::

ColiiPIIS ILCCollllll, including Laredo Nationlll

Bllllk, Including but not limited to,tl)c tonowl..iJ: all ofwhicb arc presumed to oontatn oommlllllty

funds and/or fund& belonging to ~~.~11:

·~··,' '"':;· i:.::::· ~. 11:3011>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 ~;...... .·· ;::.~.·/;..:;.-.~..: .:-~:

·..

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~

Harris County, Texas ::.:::;,:~~9.:.

-o· ...... _ - .·. :u: ,. \J.)_ • ~~

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./0;.44 Starting G. Senechal Ill _Q Deputy ~~··. ~~~IJ f:/

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o~/0812011 no 1121 ru 1lliUllll wv otUco li)005/0il • <}

06/07/2011 10:58 Hltchell 1 Duff Attorneys at Law P.OOB/011

~... ~:0

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) ()

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<lrbothoftbtm. Tltc addresses Include, butarcnot llm11cdto, ~ .~;::::;:.:::·.:. :·;·· ..

following: . .;:::::>··:::~;;,::..

·:::.. ;:::.:

~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:<as, 77056

c:, 6650 Pa!rflold Sueet Holl31on, Toxu, ?7023

d. 2119 Tanglcy HoUlton, T~;:?#i>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<I.IIIIi:l i~~'propar!Y )Vlthlll that :entit)' oi'lndlvldual•• control or pouesslon, whlch may i y~~ \(. ..r.·!~. ~>~···../. ~~: 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.

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Atlomoy for Indopondont Admlnlsr:atrix Ill

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~ II! DEAN M. BlUMROSEN,ESQ. ./'\. I Statoll~rNo. 02'17900 . .:' ''i'• ~ ~~~s!~~==~ay, Sui~~:~~.~·· :J:r.:;:;:'j:> 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-.ntlolnllo be tn.dequalt for lhl bul plla!Dgnplllo nprod...UOO bocauot ollr.glbl!ty, ollt>or! or pholo copy, dlocolorod popar, tla. All bloci<OU1I.

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lltlnoWrrlont- ftlod ond .-od.

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

ftr..J,J.

Sterling G Senechal Ill Q Deputy

(") ('i (l IZ/2212014 12:25~Pftfw,Pt P.0021003

Cl u.

m

("~

PROBATE COURT 1

•' CAUSE NO. 38..35-401 U'l 0 INRE

0 § IN THE PROBATE COURT 0 JANeT F. McAFeE, g 0. Deaeued

1,!') G NUMBER ONE (Q I "" ROSEMARY FOI.YN and I

0

(\j

"' JAKE FOLYN 5

t

v. I OF (\) Ill Cl ... THE OMS GROUP, LLC and

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0

WOODFOREST NATIONAL BANK,

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~" (\J § HARRIS COUNTY, TEXAS C.I Ill Defendanta §

0

i

I

... NOTICE OF ORAL HEARING

0

Notice Ia hereby given lhat the following haa been set tor oral helllfng on Thun~day, January 8, 2015, at 11:00 a.m., In the Probate Court No. 1 of He(lia Coggty Texas, located at 201 Car.ollne stree~ e"' Floor, Houeton, Texas 17002: · ;: o;;

~.~ l\

1. Motion to Quash Wrft1 of Gemlahment. """

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Rlllpoctfully IUbmlltlld, ANDERSON PFEIFFER, PC

By: Ea1her Andeoon SBN: 00792332 845 FM 617 Willi, Suite 200 Olcklrwon, Texaa T7e39 Oflice: 281.488.6535 Factlmllo: 281 .614.5206 Email: eatherGprobateguardlanshlp.o;om

HOTIOIOI-

,.ttU

~ EXHIBIT

!_c_

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~ G Sterling G Senechal Ill Deputy

1212212014 1Z:25Mdcna!PIIIfa',PC

......

0) C)

Of OOU118el on the Pleading:

!f1

hi :&zt;m :r'dr Robert Tell' Robert Telr, PLLC

.... &46 FM 617 Wwt, 1:11Ji111 200 C) Dlcldnson, Texllt 77539 ('J Ollloe: 832.3all.1191 Facelmlle: 832.560.2700

co Email: robiiPProl>alllguan!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£;--<UL Stetiing G. Senechal Ill Q Deputy

IV. ESTATE HAS CLAIMS AGAINST FUNDS

10. Separate and apart from the wrongful death action and any assets

plaintiffs may be entitled to, the Estate of Janet Foltyn McAfee has claims

against the funds at issue in this garnishment proceeding. Rosemary Foltyn,

as Independent Administratrix of the Estate of Janet Foltyn McAfee has ()

asserted these claims in the probate cause number for this matter. Plaintiffs

N

Ill () request that the Court wait until those issues are litigated by the probate .... ()

attorneys before making any determination regarding any funds involved in

this matter.

WHEREFORE, PREMISES CONSIDERED, Rosemary and Jake

Foltyn, request that the Motion to Quash Writs of Garnishment be denied;

further issue an Order that Charles Storer does not have standing ins this

matter and in the alternative, issue a stay of this matter until Mr. McAfee has

complied with this Court's June 26, 2014, Order compelling him to fully

respond to the post-judgment discovery, and other such relief to which

Gamishors may be justly entitled.

Response to Motion to Quash Writs of Garnishment Page 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

~~A ~~:::::.J'di ~. ~Q~Deputy Stenrng G. Senechar Ill

Respectfully submitted,

By: Is/ Dean M. Blumrosen DEAN M. BLUMROSEN, ESQ. State Bar No. 02517900

~

4615 Southwest Freeway, Suite 850 Houston, Texas 77027 i 713.524.2225- Telephone I 713.524.5570- Facsimile Dblumrosenlaw@.nol.com ATTORNEY FOR PLAINTIFFS I

I

I

CERTIFICATE OF SERVCE !

I certify that a true and correct copy of this document has been forwarded to all counsel of record through the electronic service provider !

f

I

and/or via facsimile on this 71h day of January 201 S.

i

Is/ Dean M. Blumrosen DEAN M. BLUMROSEN

l

[

r

Il

Response to Motion to Quash Writs of Garnishment Page 6 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

-~h:,~ · L:..::4,~ ·'~ d -~Q~Deputy

Ster11ng G Senechal Ill

NO. 396935-401

ROSEMARY FOLTYN, Individually§ IN THE PROBATE COURT AND JAKE FOLTYN, Individually§ ONE Plaintiffs §

§ §

§

Iii § § OF §

vs. § §

THE GMS GROUP, L.L.C. AND § WOODFOREST NATIONAL § BANK § HARRIS COUNTY, TEXAS Defendants

On the _ _ day of january, 2015, came on to be heard Charles Storer's

I

Motion to Quash Writs of Garnishment and after having considered the pleadings on

file and the arguments of counsel, is of the opinion that the Motion should be in all !I

things, DENIED. It is further ORDERED that Charles Storer lacks standing to assert l claims in this matter on behalf of Defendant, Kenneth C. McAfee.

In the alternative, the Motion to Quash is abated and shall not be heard until

I

!

Defendant, Kenneth McAfee, fully answers Plaintiffs' Post-judgment Interrogatories

I

and produces all documents that are responsive to Plaintiffs' Post-judgment Requests ir

for Production.

I

l

l

Res ponse to Motion to Quash Writs of !

Page 1

Garnishment [ !'

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, T exas trl SIGNED on the _day of _ _ ___. 2015. 'I'\ ~ . Ci ,., '"'.... ,,

JUDGE LOYD WRIGHT

lfl ...

0

(\j o:l

0

Response to Motion to Quash Writs of Garnishment Page 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

· ..,h;44_ . Q Sterling G. Senechal Ill

Deputy

Tab7 January 18,2015 Transcript

25

r--------------------------------------------------------------------

1 REPORTER'S RECORD

2 TRIAL COURT CAUSE NO. 396,935

3

4

5 IN THE ESTATE OF IN THE PROBATE COURT

6

7 JANET F. MCAFEE, NUMBER 1 (ONE)

8

9 DECEASED HARRIS COUNTY, TEXAS

10

11

12

13

14 HEARING ON MOTION TO QUASH WRITS OF GARNISHMENT

15

16

17

18

19 On the 8th day of January, 2015, the following proceedings

20 came on to be held in the above-tit and numbered cause

21 before the Honorable Loyd Wright, Judge Presiding, held in

22 Houston, Harris County, Texas.

23 Proceedings reported by computerized stenotype machine.

1 APPEARANCES

2

3

4 MR. DEAN MILES BLUMROSEN Bar Card Number: 02517900 5 Law Offices of Dean Miles Blumrosen 4615 Southwest Fwy Ste 850 6 Houston, TX 77027-7162 Telephone: 713.524.2225 7

8 Counsel for Plaintiffs

9

10

11 MS. ESTHER GARZA ANDERSON Bar Card Number: 00792332 12 Anderson Pfeiffer PC 845 FM 517 Rd W Ste 200 13 Dickinson, TX 77539-2903 Telephone: 281.488.6535 14

15 Counsel for Char Store, Power of Attorney for

16 Charles Mcafee

17

18

19 MR. ROBERT 'ROB TEIR' TEIR Bar Card Number: 00797940 20 Robert Teir, PLLC 845 FM 517 West, Suite 200 21 Dickinson, TX 77539-2903 Telephone: 832.365.1191 22

23 Counsel for Charles Store, Power of Attorney for

24 Charles Mcafee

3

1 (Proceedings commence.)

2 THE COURT: Okay. The Mcafee Estate.

3 MR. BLUMROSEN: Good morning. Happy New Year

4 to you.

5 THE COURT: Happy New Year.

6 MS. ANDERSON: Good morning, Judge.

7 THE COURT: Good morning.

8 MS. ANDERSON: How are you doing?

9 THE COURT: I'm good.

10 MR. WATERS: Good morning, Your Honor.

11 THE COURT: The coffee is cold, but I'm good.

12 All right. So what, we have a

13 MS. ANDERSON: Yeah. And I think --

14 THE COURT: -- garnishment?

15 MS. ANDERSON: Right. I think we can sum up

16 this part. Let me just show you.

17 THE COURT: Make announcements just to make

18 sure the court reporter --

19 MS. ANDERSON: Right. Esther Anderson and

20 Robert Teir. We represent Charles *Store, who is the Power

21 of Attorney for Charles Mcafee.

22 MR. BLUMROSEN: Good morning, Your Honor.

23 Dean Blumrosen on behalf of the Plaintiffs.

24 UNIDENTIFIED MALE: Good morning, s

25 THE COURT: Good morning.

1 MS. ANDERSON: And Judge, on this matter,

2 Mr. Blumrosen and I have spoken. And I think that we agree

3 that as far as the writs, that there is no author y to

4 attach the I.R.A. account or the Social Security benefits.

5 And in his response there's really no objection to what

6 we've put forth.

7 However, he does have insurance with regard to

8 discovery, and I have volunteered to answer any questions

9 that he has. I'll put my client under oath, whatever it is

10 that he needs to be done. But I don't think that that's an

11 issue for today, to -- to use this hearing to compel a

12 previous order of the Court with regard to discovery. And

13 I'll let him speak to that.

14 But there's also one other issue, which is a notice

15 that was filed with the court yesterday evening by Ms. Duff,

16 and she is the attorney who represents the Estate, and

17 saying that she's not available for today. One, she said

18 she didn't receive notice of today's hearing, and she's not

19 available for the hearing.

20 When I noticed the hearing, it was only as to the Writ

21 of Garnishment. So it was only the two banks and Mr. --

22 MR. BLUMROSEN: Blumrosen.

23 MS. ANDERSON: I'm sorry. I'm gonna leave

24 that right there (indicating) so I can read your name -- as

25 to Mr. Blumrosen, because they were the only parties on

5

1 the -- on the Writ.

2 And so I'm ready to proceed with an argument if the

3 Court needs one. Like I said, there's no opposition to the

4 basis of the law, which is that they're protected. There

5 are no exceptions to the Social Security benefits or the

6 I.R.A. benefits. One is governed by federal law; the other

7 is governed by state law.

8 As a matter of fact, I don't even think the Court has

9 any authority to deal with any of those according to the --

10 the federal law. Everything is exempt from state and

11 federal judicial action.

12 And so we're asking for the writs to be quashed. And

13 we can go through that in detail if you'd like. I have my

14 client here, and we can prove up the records and prove that

15 the benefits are Social Security and I.R.A. funds.

16 MR. BLUMROSEN: And Your Honor, I don't think

17 that would be necessary. And I certainly appreciate them

18 coming in on this case. As you know 's been going on for

19 almost a little over four years, and it's hard to put

20 this into a vacuum the way that they're doing.

21 The issue that the Plaintiffs have, Your Honor, as

22 you're we'll aware, is we filed post-judgment discovery.

23 And before I go there, the first argument that I would make

24 to the Court, and it's in my response, Mr. Store has no

25 standing to bring any claim in this proceeding.

1 He says he's Power of Attorney for -- I believe he says

2 Charles Mcafee, which I'm not even sure who that is. But

3 maybe that's a typo, but that's also in the order. But I

4 don't believe -- they haven't intervened.

5 They -- they appear to be making an appearance on

6 behalf of someone who claims to have the Power of Attorney

7 for Mr. Mcafee. If that's the case, they should have

8 intervened in that capacity, but they didn't do that.

9 Substantively, on -- on her motion, I think she

10 represented to the Court accurately if, in fact, those funds

11 are his retirement account and if, in fact, those funds are

12 his Social Security benefits, then I'm I'm not arguing

13 with that.

14 Where I have an argument, Your Honor, is we filed

15 post-judgment discovery after we got the $2 million verdict

16 against Mr. Mcafee. And as you're well aware, they didn't

17 respond to it. That's the point in time where the Defendant

18 has the ability to characterize his assets, to tell us what

19 he has, what the character of them is, and ask very detailed

20 questions about that.

21 As you're aware, Mr. Bennett and Mr. Forrest (phonetic)

22 both wanted to withdraw. And what they said was, "We're not

23 getting paid. We're not getting along with our client. He

24 doesn't have any money. We want to withdraw." I objected

25 and we had a hearing on that, because there was pending

7

1 post-judgment discovery.

2 And all of them asked about his assets, including his 3 retirement benefits, everything characterizing all of his 4 assets. Well, the Court granted the Motions to Withdraw, 5 but you also granted our Motion to Compel on June the 26th 6 of 2014, ordering Mr. Mcafee to produce all documents,

7 because they never filed any objections to it, and to answer 8 the Interrogatories. 9 Well, Mr. Mcafee has never answered any of the

10 Interrogatories that were ordered to be answered, all,

11 again, asking to characterize his assets. 12 Mr. Bennett, on July lOth, did respond to the Court's 13 order to -- the Request for Production. And what he said in 14 every single Response to Request for Production is, "No 15 documents are available." So I find it quite fanta and

16 miraculous that when we then proceed to garnishment, all the 17 sudden, apparently Mr. Mcafee does have money to hire

18 counsel, he does have documents available to character 19 his assets.

20 So they then file their Motions to Quash the

21 Garnishments. I assume that she's not here doing this of

22 her own free will. I assume she's getting paid, which she

23 should get paid. 24 But as a judgment creditor of a man who's been

25 convicted of murder and who has a judgment against him, he

8

1 should be required to comply with all the civil rules as any

2 other judgment defendant. And part of that is to answer the

3 post-judgment discovery.

4 What I would ask the Court to do, if the Court should

5 find Mr. Store has standing, which I don't believe he does,

6 is to abate this hearing, force -- if they're entering on

7 behalf of Mr. Mcafee, force Mr. Mcafee to comply with the

8 court order that was entered on June 26th and provide us

9 with all of his assets, not just the ones that he wants to

10 protect and make sure that he can hire lawyers to protect

11 them.

12 He should be required to tell us -- and we've asked him

13 for transfers, because we -- we have suspicion that money

14 has been transferred.

15 Finally, and I put this in my response and I believe

16 Ms. Duff put this in her Notice to the Court that she filed

17 yesterday, and I've I've shared this this morning: As

18 the Court is aware, we have a wrongful death judgment, and

19 we're only entitled to some assets.

20 We don't believe we are entitled to his retirement

21 account as judgment creditors on a wrongful death case.

22 Ms. Duff has explained to me that the Estate does, in fact,

23 have claims against the retirement account. I'm not sure

24 whether or not she has -- the Estate has claims on their

25 Social Security benefits or not.

1 But what she was fearful of, and I believe that's why

2 she filed something yesterday and I put it in my response,

3 we cert nly don't want the Court to release any funds.

4 We're not asking the Court to release any funds to us

5 here today, but we don't want the Court to release the funds

6 that are held in the retirement account or the Social

7 Security account. And as I understand , in the Estate

8 they already have a freeze on those accounts, anyway.

9 So what we would prefer to do is if they are making

10 appearance on behalf of Mr. Mcafee, not -- not Charles

11 Store, that they provide us with the documents that have

12 been ordered to provide, that would characterize his assets.

13 And at that point in time, once we have a global

14 picture of what his assets are, including documents and

15 transfers and things of that nature, and that the Estate has

16 come to a resolution as to what they believe they're

17 entitled to of the retirement benefits and the Social

18 Security benefits, I believe we can agree that on on

19 most of it.

20 There are some assets at least that G.M.S. provided to

21 the Court, that I don't think are a retirement account.

22 But again I I don't think it's the appropriate time to

23 get into garnishment yet since they haven't told us what

24 the assets are.

25 MS. ANDERSON: May I respond, Your Honor?

1 THE COURT: Yes.

2 MS. ANDERSON: And just so that it's clear,

3 we do represent Mr. Store as the agent for Mr. Mcafee only,

4 not Mr. Mcafee directly. With regard to standing, we

5 believe that the agent does have standing. Before filing

6 this, we filed an entry of appearance in this cause.

7 There -- there's nothing to intervene in, because there

8 no pending action.

9 My understanding is that the wrongful death suit is

10 over. There was a final judgment. They were awarded

11 damages in the millions of dollars. So there there's

12 nothing to intervene in.

13 But I did want y'all to know that we were here and were

14 open to working with you, and so there was an Entry of

15 Appearance filed. And there was no objection to that Entry

16 of Appearance. We then filed the Motion to Quash the Writs

17 of Garnishment.

18 Moving past that, I mean, I've explained to

19 Mr. Blumstrum (sic) I've hoped that he was happy that we

20 were here, because we're more than willing to help and get

21 everything resolved. But that's not what today is about.

22 That's a separate issue.

23 Mr. Blumrosen filed these Writs of Garnishment. He

24 sent them to the banks. We're responding to the Writ of

25 Garnishment, and that's the only thing that's before

11

1 Court.

2 He agrees that they are not entitled to the I.R.A.

3 assets or the Social Security assets, so we expect that the

4 Court will enter the order quashing the two Writs.

5 With regard to the discovery -- and keep in mind,

6 Judge, that we only learned of these things yesterday upon

7 receiving the two -- the filings. I think it was

8 mid-afternoon and and yesterday evening that we were

9 doing this.

10 So in looking at the timeline as to what happened in

11 the underlying case, it is correct that there was

12 post-judgment discovery served by Mr. Blumrosen for the

13 Plaintiffs, not the Estate.

14 With that, the -- there were two attorneys who

15 represented Mr. Mcafee, and both filed a Motion to Withdraw.

16 This was after the discovery was served. Then there was an

17 objection to that because-- and this is very important--

18 in the Application to Withdraw, Mr. Mcafee did not put in

19 that there was outstanding discovery. He listed other

20 things, but he didn't put that in.

21 Mr. Blumrosen objected to that, but, of course,

22 Mr. Mcafee is in prison and isn't hearing all of this. I

23 don't know whether the attorney ever communicated that to

24 him or not. Our agent's position is that he knew nothing

25 about the discovery.

1 After that, the second attorney the Court let him

2 go. Then the second attorney filed another Application to

3 Withdraw. And in that order, Judge, it was written that any

4 future notices needed to go directly to the Defendant.

5 And so there has been no communication by Mr. Blumrosen

6 or his office, that I'm aware of, and I'm sure you'll

7 correct me if I'm wrong, directly to the Defendant saying,

8 " , you -- there's this . You haven't complied with

9 the order. Give me responses to the discovery."

10 There has been no action on Mr. Blumrosen's part to

11 attempt to follow up on the discovery with Mr. Mcafee.

12 THE COURT: So what have what have you

13 filed in this cause, just the Motion to Quash?

14 MS. ANDERSON: A Motion to Quash the two

15 Writs. That's it.

16 THE COURT: And where's the Power of

17 Attorney? Has that ever been produced or referenced

18 well, I mean, I know it's referenced, but where is it?

19 MS. ANDERSON: And quite frankly, I didn't

20 ·think that my or Mr. Store's word would be questioned. But

21 yes, we'll -- we'll certainly --

22 THE COURT: Oh, yeah.

23 MS. ANDERSON: -- show

24 THE COURT: Oh, yeah.

25 MS. ANDERSON: We'll certainly show

13

1 THE COURT: And not -- not that it's you.

2 MS. ANDERSON: -- a copy.

3 THE COURT: But I mean, you're -- I mean,

4 you're coming into court on a basis of a certain document.

5 I mean, I

6 MS. ANDERSON: And Your Honor, I understand

7 that. It's just this is --

8 THE COURT: You know, I don't think -- you

9 know, you're an attorney and everybody is a professional and

10 all that, but but I don't think I could operate if I just

11 sat there and said, "Okay. I believe everybody and

12 everything everybody says, and you don't have to support

13 some of the things" -- I mean, when -- have you ever --

14 when's the first time you heard of Mr. Store?

15 MR. BLUMROSEN: I've heard of Mr. Store

16 because Mr. Bennett, in hearing, referenced him.

17 THE COURT: He was a previous person

18 referenced and

19 MR. BLUMROSEN: He referenced him, but

20 I'll I'll just leave it at that.

21 THE COURT: Okay.

22 MR. BLUMROSEN: I've heard of Mr. Store

23 because I've been working on the case for four years.

24 THE COURT: Well, I

25 MR. BLUMROSEN: I've known for a long time

14

1 who he was.

2 THE COURT: Well, here's my --

3 MS. ANDERSON: And Judge, we filed this a

4 pretty good ways back and gave plenty of notice, and then I

5 get this yesterday afternoon, you know, this standing

6 question. I -- you know, had he just called or asked

7 THE COURT: Well, I mean, I'm I'm inclined

8 to abate this for two weeks and see what y'all can discuss

9 with each other. I mean, it seems to me Ms. Anderson may

10 actually facilitate something that you haven't learned yet;

11 I mean, may actually help you get what you should have

12 gotten under your Motions to Compel.

13 MS. ANDERSON: Well -- and Your Honor, so

14 that we don't come here and just talk about it again in two

15 weeks --

16 THE COURT: Because --

17 MS. ANDERSON: I will let the Court know

18 that I have told Mr. Blumrosen everything I have. One, the

19 Estate has filed four inventories. They have all of the

20 information. My client knows of nothing else.

21 And -- and I was saddened to hear you make the

22 representation that we say we don't have anything, yet we

23 filed something with our Writ.

24 I explained to him that my client went to the bank, as

25 the agent, and obtained those documents. He didn't have any

15

1 documents, ever, to turn over, and he knew that before he

2 just said that to the Court, so -- that he didn't --

3 THE COURT: Well, I'm going to --

4 MS. ANDERSON: -- and he doesn't.

5 MR. BLUMROSEN: Just to make sure that you

6 understand, I'm talking about the previous attorneys said

7 they didn't have any documents. I wasn't referencing you.

8 MS. ANDERSON: Uh-huh.

9 MR. BLUMROSEN: I want to make sure you

10 understand that.

11 THE COURT: Okay.

12 MR. BLUMROSEN: I'm just talking about --

13 MS. ANDERSON: But it showed up in the

14 document that I filed.

15 MR. BLUMROSEN: I'm just simply saying that

16 the Court was here when Mr. Bennett said, "We don't have any

17 documents. We don't have any discovery. We have nothing."

18 And I just find it amazing that apparently, Mr. Mcafee has

19 money to pay new attorneys. And when they need documents,

20 you -- you -- I understand Mr. Store went to the banks and

21 got the documents.

22 THE COURT: Well, it --

23 MS. ANDERSON: Well, let -- and let me

24 just --

25 THE COURT: Aside --let's go backtrack. It

16

1 seems to me there ought to be some kind of Motion to Enter

2 Appearance on Mr. Store's behalf that sort of explains,

3 maybe even verified, how he is offici ly involved in all

4 this, how he is now standing in the shoes of Mr. Mcafee.

5 And then secondarily there's a there's a $2 million

6 judgment, and Mr. Mcafee is going to do everything he's

7 required to do to produce documents or answer for one way or

8 the other about what his assets are and what the

9 transactions have been, what he's been involved in.

10 There's going to be full disclosure. I don't know

11 how I mean, it has been a four-year --

12 MS. ANDERSON: Well, and here

13 THE COURT: ordeal.

14 MS. ANDERSON: --here's here's what can

15 happen, though, after this hearing -- I've made clear

16 that I represent the agent. And if it's

17 THE COURT: I know.

18 MS. ANDERSON: And and

19 THE COURT: But you're you're saying that

20 as though it somehow insulates you from

21 MS. ANDERSON: No, no, no.

22 THE COURT: the fact that he is connected

23 to a guy convicted of murder, with a $2 million judgment,

24 civil judgment against him.

25 MS. ANDERSON: I'm not here to --

1 THE COURT: It doesn't. I mean --

2 MS. ANDERSON: -- retry that issue.

3 THE COURT: -- if you're going to stand in

4 those shoes, I'm going to treat you as though he was

5 Mr. Mcafee, essentially.

6 MS. ANDERSON: Okay. And I don•t

7 THE COURT: If that's --

8 MS. ANDERSON: I don't have a problem with

9 that, Judge. But I made an entry of appearance with regard

10 to the only thing that was pending in this court, which were

11 the two Writs of Garnishment.

12 THE COURT: Right. And and the

13 garnishment --

14 MS. ANDERSON: Okay. And so that's what I --

15 THE COURT: -- was not necessarily -- I don't

16 think maybe correct me if I'm wrong, but when you did

17 it, you didn't say, "I'm trying to garnish Social Security

18 and I.R.A. benefits."

19 MR. BLUMROSEN: No, Your Honor.

20 MS. ANDERSON: We had no we know we didn't

21 do it, Judge.

22 THE COURT: So he -- he --

23 MS. ANDERSON: We're not here to --

24 THE COURT: No, but he's -- so you're

25 saying -- I think you're telling me that all these accounts

18

1 are either Social Security or I.R.A.

2 MS. ANDERSON: No.

3 UNIDENTIFIED MALE: Not all, Your Honor.

4 MS. ANDERSON: No.

5 THE COURT: Okay. So then why is his Writ --

6 MS. ANDERSON: Judge, I'm not

7 THE COURT: -- not good as to these

8 non-exempt assets?

9 MS. ANDERSON: Well, because in our order --

10 and we asked if you wanted the order ahead of time and were

11 instructed to just bring it. But we went ahead and filed

12 one yesterday. It only talks about the Social Security

13 account and the I.R.A. We have no claim, under the Wr

14 to the other accounts. We know that they are attachable.

15 All I'm talking about are two accounts, the Social

16 Security and the I.R.A. And I -- I -- I thought -- you

17 know, in the Motion, it only talks about Paragraph A as a

18 Social Security account and Paragraph B is the I.R.A.

19 account. Those are the only two ones.

20 And if I need to make it clearer, I certainly would --

21 would do that. I put the G.M.S. account in an Individual

22 Retirement Account that qualifies for the end -- end --

23 federal income tax deferral.

24 THE COURT: So what you're -- and just to

25 make it clear, what G.M.S. filed with the Court and the

19

1 last page has these three accounts on it, one of them is the

2 228,000 --

3 MS. ANDERSON: Uh-huh.

4 THE COURT: which is the retirement

5 account. The other one is the 6,694, which I don't believe

6 is a retirement account.

7 MS. ANDERSON: And we have no claim --

8 THE COURT: And the other one is the

9 $1600.00, which I don't bel is a retirement account,

10 either. And so that -- I don't think those are at issue. I

11 think we are eventually going to those.

12 But one issue that the Court has hit on, that also

13 you've referenced our conversations in the hallway. You

14 know, you had also referenced if we're --you know, you're

15 here only on the garnishment. You're here for that only.

16 And -- and the Court has hit on exactly what our

17 problem is. You know, she wants to make an appearance on

18 behalf of the agent, on behalf of Mr. Mcafee, but "I don't

19 want to have to answer all these other discovery things that

20 are" -- you know, to say that there's not an ongoing case,

21 we have an ongoing case that she has intervened in -- well,

22 hasn't intervened in but has filed a Notice of Appearance

23 in. The ongoing case is post-judgment discovery in this

24 matter.

25 MS. ANDERSON: And Judge --

1 THE COURT: And so what I --

2 MR. BLUMROSEN: Is that really your position,

3 that you're just here on this garnishment?

4 MS. ANDERSON: Until yesterday, the

5 garnishment is the only thing

6 UNIDENTIFIED MALE: That's (inaudible)

7 MS. ANDERSON: -- that I knew about excuse

8 me? What did you say?

9 UNIDENTIFIED MALE: That -- that's

10 (inaudible)

11 THE COURT: Just talk to me.

12 MS. ANDERSON: I'm I'm trying to listen to

13 him, too, Judge. The only thing that I knew about were the

14 two citations on the Writs of Garnishment. That is all that

15 is addressed in the Motion. That's all that's addressed in

16 the order.

17 Now, yesterday afternoon and early evening, we received

18 a response from Mr. Blumrosen and the other document from

19 the estate attorney. So we looked into it.

20 What I'm saying is that, you know, we talk about, "How

21 does he have money to pay me," which is really none of

22 anyone's bus ss, but I'm going to address it because it

23 puts a false light. 24 Mr. Mcafee is not paying me. Irve not been paid

25 anything from Mr. Mcafee's assets. Okay? So he's not

21

1 paying. He doesn't have access to any money. And so I was

2 retained by the agent, with his funds, to address a

3 particular issue. And so when I'm saying

4 THE COURT: Wow.

5 MS. ANDERSON: -- "How can I come into this"

6 or --

7 THE COURT: Gosh. That just --

8 MS. ANDERSON: "How am I going to take

9 over this whole project and solve the problems of the world

10 and be as generous as I'm being, if there's no money to pay

11 me 11

12 THE COURT: Well, I mean, it just -- you

13 know, I don't know. It just seems like kind of cherry

14 picking where you want to be and where you don't want to be.

15 And -- and again, I think actually, I think there should

16 be a Motion to Show Authority, and we should address all

17 that that issue about your client's standing to be here

18 at all.

19 So that's why I want to abate this. If y'all want to

20 talk in the next two weeks, I'm not I'm just going to put

21 it on hold. And y'all can talk and decide and figure out

22 where everybody stands. And then maybe you can address this

23 issue about what your involvement really will be and the

24 Power of Attorney's authority to even be here.

25 MS. ANDERSON: And and you know -- and

22

1 if -- and if we're

2 THE COURT: And so I --

3 MS. ANDERSON: not involved --

4 THE COURT: -- that's what I'm doing.

5 MS. ANDERSON: Judge, if we're not involved,

6 and that's fine, the Court does have these documents before

7 it. It's clear under the federal and state law. So I mean,

8 it could be --

9 THE COURT: Well, I don't think --

10 MS. ANDERSON: that the problems --

11 THE COURT: we have any argument about

12 that. I'm just--

13 MS. ANDERSON: Right.

14 THE COURT: saying that --

15 MS. ANDERSON: So if we're not involved,

16 the the issues don't get resolved.

17 THE COURT: But the garnishment is good as to

18 non-exempt assets.

19 MS. ANDERSON: That's all we're looking for,

20 two accounts.

21 THE COURT: And so --

22 MS. ANDERSON: I mean, that's not going to

23 change now or two weeks from now or two years from now, no

24 matter what the discussions are.

25 THE COURT: Right. But when I --when I --

1 it's not a complete quash if -- if certain assets are --

2 MS. ANDERSON: I'm not asking--

3 THE COURT: -- seizable.

4 MS. ANDERSON: -- for a complete quash,

5 Judge.

6 THE COURT: Okay.

7 MS. ANDERSON: And and if I've not made

8 that clear, then I'll look at it again.

9 THE COURT: But it -- let me look at your

10 order. Frankly, I'd rather -- because you seem to be saying

11 that you have this intention to cooperate in terms of

12 enlightening Mr. Blumrosen about Mr. Mcafee's assets, maybe

13 I'm misstating that.

14 But I think that's -- that's the first impediment, is

15 for -- for Mr. Blumrosen to have an understanding, and even

16 the Executor or Administrator of the Estate, to have a

17 complete understanding about what potential assets are there

18 and what belongs to the Estate or what would be available,

19 that Mr. Mcafee owns, to satisfy a $2 million judgment --

20 MS. ANDERSON: I think it

21 THE COURT: -- on behalf of the parents.

22 MS. ANDERSON: Yeah. I understand using that

23 as leverage. You know, going two weeks, not signing the

24 Writ, is leverage, so I'll do that.

25 THE COURT: No, I don't -- I'm not trying to

24

1 use it as leverage. I'm-- four years and you --you know,

2 like you said, you just walked in here and that's But

3 I mean, four years have gone by. Is four years?

4 MR. BLUMROSEN: She was killed in May of

5 2010.

6 THE COURT: And what was the judgment when

7 was the judgment entered, though?

8 MR. BLUMROSEN: April of 2014.

9 THE COURT: Okay. So judgment April 2014, I

10 guess we'll be pushing-- or getting close to a year pretty

11 soon.

12 MS. ANDERSON: And -- and let me just say --

13 THE COURT: But, I mean, nothing is -- you

14 have a guy sitting in prison, who's sort of insulated

15 himself from disclosure for a judgment that was based on an

16 act of murder. And I mean, it's offensive. It's extremely

17 offensive to me.

18 I mean, I want -- I've I've told everybody this: I

19 mean, I'm a full disclosure guy. Put the cards on the

20 table, and what's there is there. And I I think

21 Mr. Blumrosen is entitled to know all transactions, all

22 things that Mr. Mcafee may have orchestrated or not relating

23 to his assets.

24 MS. ANDERSON: And I agree.

25 THE COURT: And he's in the dark. He's been

25

1 in the dark, and he continues to be in the dark, except now

2 we know there are two exempt assets.

3 MS. ANDERSON: Here -- here's the deal,

4 Judge: If he has no money, he can't afford me to help him.

5 THE COURT: I know.

6 MS. ANDERSON: If -- and if the Writ --

7 THE COURT: I get ; I get it. But now

8 you're coming in on a --

9 MS. ANDERSON: But if the Writ is granted --

10 THE COURT: -- on the certain protective

11 basis for an individual who claims to have a Power of

12 Attorney, and you're going to sort of say, "I can I can

13 come in and cherry pick when I'm going to respond and when

14 I'm not going to respond. But if you want something else,

15 I'm going to stand in the shoes of Mr. Mcafee for this, but

16 I'm not going to stand in his shoes for that. I'm just

17 going to kind of" --

18 MS. ANDERSON: Well --

19 THE COURT: -- "cherry pick where I want to

20 be."

21 MS. ANDERSON: Well, to make clear,

22 Judge --

23 THE COURT: I -- I just don't -- if the Power

24 of Attorney says that he has full authority to stand in the

25 shoes of Mr. Mcafee, then that's the way 's going to be.

1 MS. ANDERSON: Yeah. And I need the Court to

2 understand I have not cherry picked anything.

3 THE COURT: I'm -- look, it's -- yeah, you

4 have, but I don't -- I'm not saying --

5 MS. ANDERSON: I didn't even know about

6 this

7 THE COURT: there's something nefarious --

8 MS. ANDERSON: until he filed yesterday.

9 THE COURT: I'm not saying there's something

10 nefarious in what you did or anything. But I'm saying as I

11 look at it right now, that either he's --he's -- either

12 the Power of Attorney is all in or he's all out. That's my

13 position.

14 MS. ANDERSON: Okay. So --

15 THE COURT: So

16 MS. ANDERSON: Do you want a revised order or

17 not?

18 THE COURT: No. I just want to abate it for

19 two weeks, and then y'all -- I'm going to ask y'all to come

20 back and we'll sort of call it a status report.

21 MR. BLUMROSEN: Thank you, Your Honor.

22 THE COURT: All right.

23 MS. ANDERSON: And in the meantime in the

24 meantime, I assume the Writs will just float? I mean,

25 you're not going to go push to collect on them.

1 MR. BLUMROSEN: Absolutely not. I wouldn't

2 do that.

3 THE COURT: Okay. So on the record --

4 MR. BLUMROSEN: No.

5 THE COURT: we're just maintaining status

6 quo for two weeks. We're going to see if there's any

7 first of all, you're going to have to clarify your authority

8 as to this case and this matter, and then y'all can

9 communicate as you choose.

10 MS. ANDERSON: And i f - - and if it's -- just

11 so that you understand, because I know what I'm hired for.

12 THE COURT: I know. I'm not I'm not

13 really crude. I'm just saying there's going to be - -

14 MS. ANDERSON: Well, I mean, there

15 THE COURT: I think, from my perspective --

16 MS. ANDERSON: I may not be here in two

17 weeks

18 THE COURT: it's going to --

19 MS. ANDERSON: is what I'm saying--

20 THE COURT: be all in or all out.

21 MS. ANDERSON: you know. Right. All in

22 or all out.

23 THE COURT: And so you're going to have to

24 figure out where you stand, too.

25 MS. ANDERSON: As long as y'all understand

28

1 that --

2 THE COURT: Okay.

3 MS. ANDERSON: that I'm, you know --

4 THE COURT: And and I

5 MS. ANDERSON: -- with no money. So --

6 THE COURT: I understand.

7 MR. BLUMROSEN: To make sure it's clear on

8 the record, I have no intention of doing anything on these

9 Writs until we have an order from the Court.

10 MR. TEIR: All right. Thank you.

11 THE COURT: Thank y' all. Thank y'all for

12 coming.

13 (Proceedings concluded. )

1 STATE OF TEXAS

2 COUNTY OF HARRIS

3

4 I, Sheryl E. Stapp, Deputy Official Reporter in and

5 for the Probate Number 1 Court of Harris County, State of

6 Texas, do hereby certify that the above and foregoing contains

7 a true and correct transcription of all portions of evidence

8 and other proceedings requested in writing by counsel for the

9 parties to be included in this volume of the Reporter's Record

10 in the above-styled and numbered cause, all of which occurred

11 in open court or in chambers and were reported by me.

12 I further certify that this Reporter's Record of the

13 proceedings truly and correctly reflects the exhibits, if

14 any, offered, admitted, and/or requested by the respective

15 parties.

16 I further certify that the total cost for the

17 preparation of this Reporter's Record is $ 225.00 and was

18 paid by ftnderson Pfeiffer, PC.

19 WITNESS MY OFFICIAL HAND on this the _4th day of

20 ======~A~u~g~u~s~t==============' 2015. 21

22 SHERYL E. STAPP, C.S.R., R.P.R.

23 Texas C.S.R. #6227 -- Exp. 12/31/16 Deputy Official Court Reporter 24 Probate Court Number One 201 Caroline, 6th Floor

25 Houston, Texas 77002 Telephone: 713-368-6700 18/13 18/18 18/19 18/2118/22 19/5 19/6 August [1] 29/20 $ 19/9 authority [6] 4/3 5/9 21/I6 21/24 25/24 27n $1600.00 [1] 19/9 accounts [6] 9/8 17125 18/14 I8/15 19/1 available (5] 4/17 4/19 7/15 7/18 23/18 $2 [4] 6/15 16/5 16/23 23/19 22/20 awarded [1] 10/10 l$2 million rtl 6/15 accurately (1] 6/10 aware f51 5/22 6/16 6/2I 8/18 12/6 act [1] 24/16

1 action [3] 5/1110/8 12/10 B 'ROB fll 2/19 actuaUy [3] 14/10 14/11 21/15 back [2] 14/4 26/20 address [4] 20/22 21/2 21/16 21/22 backtrack [1] 15/25 0 addressed [2] 20/15 20/15 bank [1] 14/24 00792332 (1] 2/11 Administrator [1] 23/16 banks [3] 4/2110/24 15/20 00797940 [1] 2/19 admitted [1] 29/14 Bar [3] 2/4 2/11 2/19 02517900f1l 2/4 afford [1] 25/4 based [1] 24/15 after [4] 6/15 11116 12/116/15 basis [3] 5/4 1314 25/11 1 afternoon [3] 1118 14/5 20/17 be [29] 1/20 4/10 5/12 5/17 6/5 7/10 8/1 8/12 lOth [1] 7/12 again [5] 7/119/2214/14 21/15 2318 12/20 16/116/10 21/10 21/14 21/14 21/16 12/31/16 (1] 29/23 against [4] 6/16 7/25 8/23 16/24 21/17 21/23 21/24 22/8 23110 23/18 24/10 116 rtl 29/23 agent [6] 10/3 10/5 14/25 16/16 19/18 21/2 25/1 25/20 25/25 27/13 27/16 27/20 29/9 12 agent's [1] 11/24 agree [3] 4/2 9/18 24/24

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24/25 25/1 25/1 e:dremelv fll 24/16 !!UV f31 16/23 24/14 24/19 day [2] 1/19 29/19 deal [2] 5/9 25/3 F H DEAN [3] 2/4 2/5 3/23 facilitate [1] 14/10 had [4] 6/25 14/617/20 19/14 death [3] 8/18 8/2110/9 fact [5] 5/8 6/10 6/11 8/22 16/22 hallway [1] 19/13 DECEASED [1] 119 false [1] 20/23 HAND [1] 29/19 decide [1] 21/21 fantastic [1] 7/15 happen [1] 16/15 defendant [4] 6/17 8/2 12/4 1217 far [1) 4/3 happened [1] 11/10 deferral [1] 18/23 fearful [1] 9/1 happy [3] 3/3 3/510/19 Deputy [2] 29/4 29/23 federal [5] 5/6 5/10 5/1118/23 2217 hard [1] 5/19 detail [1] 5/13 figure [2] 21/21 27/24 [4] 1/91122 2912 29/5 detailed [1] 6/19 tile [1) 7/20 bas [26] 4/9 5/8 5/24 6/18 6/19 7/9 7/25 8/5 Dickinson [2] 2/13 2/21 filed [21] 4/15 5/22 6/14 717 8/16 9/2 10/6 8/14 8/22 8124 8124 9/15 12/5 12/10 12/17 did [6] 7/1210/1311/1817/16 20/8 26/10 10/15 10/16 10/2311/15 12/2 12/13 14/3 14/19 15/18 16/1119/1 19/1219/16 19/21 didn't [11] 4/18 6/8 6/16 11/20 12/19 14/25 14/19 14/23 15/14 1811118/25 19/22 26/8 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7/22 8/16 judicial [ 1] 5/11 motion [11] 1/14 6/9 7/5 10/16 11/15 12/13 here [18] 5/14 7/21 9/5 10113 10/20 14/14 July [1] 7/12 12/14 16/118/17 20/15 21/16 15/16 1611216/25 17/23 19/15 19/15 20/3 June [2] 7/5 8/8 Motions [3] 7/4 7/20 14/12 21/17 21/24 24/2 25/3 27/16 June 26th [1] 8/8 Moving [1] 10/18 here's [4] 14/2 16/14 16/14 25/3 liust f341 MR [27] 2/4 2/19 4/2 4121 617 6/21 7/6 7/9 hereby [1] 29/6 1111817 8n 10/310/411/2212/1113/22 Hey [1] 12/8 K 15/16 15/1816/617/5 19/18 20/18 20/24 him [11] 4/13 7/25 8/12 1112412/113/16 keep [1] 11/5 20/25 23/19 25/15 25/25 13/19 14/24 16/24 20/13 25/4 ldlled [1] 2414 Mr. [29] 4/25 5/24 6/16 6/21 7/12 8/5 9/10 himself[1] 24/15 kind [3] 16/1 21/13 25/17 10/3 10/19 10/23 11/12 11/IS 11/18 11/21 hire [2] 7/17 8/10 knew [4] 11/24 15/I 20n 20/13 12/5 12/10 12/20 13/14 13/15 13/16 14118 hired [1] 27/11 know [32] 15/20 I6/2 16/4 23/12 23/12 23/15 24121 his [20] 415 6/11 6/12 6/18 7/2 7/2 7/3 7111 known [1] 13/25 24122 7/19 8/9 8/20 9/12 9/14 12/6 13/16 16/8 18/5 knows rtl 14120 Mr. Bennett [3] 6/217/1213/16 21/2 24/23 25/16 Mr. Blumrosen [9] 4/2510/2311/12 11/21 hit [2] 19/12 19/16 L 12/5 14118 23/12 23/15 24121 hold [I] 21/21 last [1] 19/1 Mr. Blumrosen's [1] 12/10 Honor [11] 3/10 3/22 5/I6 5121 6/14 9/25 law [6] 2/5 5/4 516 sn 5/10 22n Mr. Blumstrum (1] I0/19 13/6 14/13 17/19 I8/3 26/21 lawyers [1] 8/IO Mr. Mcafee [6] 6/16 9/10 11/15 11/1816/4 Honorable [I] 1/21 learned (2] 1116 14/IO 24122 hoped [1] 10/19 least [I] 9/20 Mr. Mcafee's [I] 23/12 Houston (3] I/22 2/6 29/25 leave [2] 4/23 13/20 Mr. Store [6] 5/24 8/5 1013I3/1413/15 how [7] 3/8 16/3 16/4 16/11 20/20 21/5 21/8 let [8] 3/16 4113 12/1 14117 IS/23 15/23 23/9 15/20 However [1] 4/7 24/12 Mr. Store's [2] 12/20 16/2 huh f21 15/8 19/3 let's [1] 15/25 MS [1] 2/11 leverage [3] 23/23 23/24 2411 Ms. [4] 4/15 8/16 8/2214/9 I light [1] 20/23 Ms. Anderson [1] 14/9 I'd (I] 23/10 like [4] 5/3 5/13 21/13 2412 Ms. Duff [3] 4/15 8/16 8/22 I'll [6] 4/9 4/13 13/20 13/20 23/8 23/24 listed [1] 11119 murder [3] 7/25 16/23 24/16 I'm [55] listen [1] 20/12 my [13] 4/9 5/13 5/24 8/15 9/2 10/9 12/20 I've [13] 8/17 8/17 I0/18 10/19 13/15 13/22 little [1] 5/19 141214/20 14/24 26/12 27/15 29/19 13/23 13/25 16/15 20/24 23n 24/18 24/18 long [2] 13/25 27/25 I.R.A [9] 4/4 5/6 5/15 11/217/18 18/118/13 look [4] 23/8 23/9 26/3 26/11 N 18/1618/18 looked [1] 20/19 name [1] 4/24 impediment [1] 23/14 looking (2] 11110 22/19 nature [1] 9/15 important [1] 11/17 Lovd ril 1/21 necessarily [1] 17/15 inaudible [2] 20/6 20/10 necessary [1] 5/17 inclined [1] 14n M need [3] 15/19 18/20 26/1 included [1] 29/9 machine [1] 1/23 needed [1] 12/4 including [2] 7/2 9/14 made [3] 16/15 17/9 23n needs [2] 4/10 5/3 income [1] 18/23 maintaining [1] 27/5 nefarious [2] 26n 26/10 indicating [1] 4/24 make [12] 3/17 3/17 5/23 8/10 14/2115/5 never [2] 7n 719 individual [2] 18/21 25/11 15/9 18/20 18/25 19/17 25/212817 new [3] 3/3 3/5 15/19 information [1) 14120 maldng [2] 6/5 9/9 next[1] 21/20 instructed [1] 18/11 MALE 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27/to 27118 2sn millions [1] 10/11 oath [1] 4/9 mind [1) 11/5 objected [2] 6/24 11121 J miraculous [I] 7/16 objection [3] 4/5 10/15 11117 JANET[!) In misstating [1] 23/13 objections [1] 7n January [1] l/19 money [9) 6/24 7117 8/13 15/19 20/21 2111 obtained [1] 14125 Judge [15] 1/213/6 4/I 11/6 12/3 1413 1719 2l/10 25/4 28/5 occurred [1) 29/10 1712118/619/25 20/13 22/5 23/5 25/4 25/22 more [1) 10/20 offensive [2] 24/16 24/17 judgment [20) 5/22 6/15 711 7/24 7125 8/2 morning [8] 3/3 3/6 3n 3/10 3/22 3/24 3/25 offered [1) 29/14 pretty [2] 1414 24/10 responding [1] 10/24 0 previous [3] 4112 13/17 15/6 response [6] 415 5/24 7114 8/15 9/2 20/18 office [1] 12/6 prison [2] 11122 24114 responses [1] 12/9 Offices [1] 2/5 PROBATE [3] 1/5 29/5 29/24 retained [1] 21/2 Official [3] 29/4 29/19 29/23 problem [2] 1718 19/17 retirement [11] 6/11 713 8/20 8/23 9/6 9/17 officially [1] 16/3 problems [2] 21/9 22/10 9/21 18/22 19/4 19/6 19/9 Oh [2] 12/22 12/24 proceed [2] 5/2 7116 retry [1] 1712 Okay [13] 3/21311113/2115/11171617114 proceeding [1] 5/25 revised [1] 26/16 18/5 20/25 23/6 24/9 26/14 2713 28/2 proceedings [6] 1/19 1/23 3/1 28/13 29/8 right [11] 3/12 3/15 3/19 412417112 22/13 once [1] 9/13 29/13 22/25 26/1126/22 27/2128/10 one [13] 117 4/14 4/17 513 5/6 14/18 16/7 produce [2] 71616/7 ROBERT [3] 2/19 2/20 3/20 18/12 19/1 19/5 19/8 19/12 29/24 produced [1] 12/17 rules [11 8/1 ones [2] 8/9 18/19 ongoing [3] 19/20 19/2119/23 Production [2] 7113 7114 professional [I] 13/9

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January 22, 2015 Transcript

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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 STATUS CONFERENCE AND MOTION TO QUASH WRIT OF GARNISHMENT HEARING 9

10 Came to be heard on this the 22nd day of January, 2015, Status 11 Conference and Motion to Quash Wright of Garnishment Hearing, 12 in the above-entitled and numbered cause, and all parties 13 appeared in person and/or being represented by Counsel of 14 Record, before the Honorable Loyd Wright, Judge Presiding.

15 16 VOLUME __1__ OF __1__

17

18 0 RI GI NAL

2

1 APPEARANCES 2 ATTORNEY FOR CHARLES STORER: 3 Esther Anderson State Bar No. 00792332

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

3

10:21AM 1 THE COURT: The McAfee Estate. 10:21AM 2 MR. BLUMROSEN: Yes, Your Honor. 10:21AM 3 THE COURT: So, this was sort of a continuance 10:21AM 4 or a rehearing of the status of where we are? 10:21AM 5 MR. BLUMROSEN: Yes, Your Honor. We filed an 10:21AM 6 Order which we believe adequately disposes of the garnishment 1o:~M 7 issue that's in the garnishment case. There would be one 1o: 21AM 8 change that we have spoken with counsel about that we waul d 1 o:22AM 9 make and it waul d be on the paragraph 3 where it says sha 11 10:22AM 10 immediately send the payment to me and I guess address, and I 10: 22AM 11 would put a paren make sure I understand -- I'm telling the 1 0:22AM 12 Court this is not agreed to. We tried an Agreed Order and we 10:22AM 13 didn't agree on it so this is an Order that we are proposing 10 :22AM 14 and I know that counsel will share the Order that she is 10:22AM 15 proposing. 10:22AM 16 THE COURT: Okay. 10: 22AM 17 MR. BLUMROSEN: The only thing that we would add 10:22AM 18 on the end that would just say, "Upon release of the Temporary 10:22AM 19 Injunction in Cause No. 396,935." The stuff is here on the 10:22AM 20 behalf of the Estate. These are -- the garnishment is only 10:22AM 21 related to the wrongful death case. We believe that some of 10:22AM 22 the findings that counsel is asking the Court to make an Order 10:22AM 23 that she is proposing could potentially prejudice claims that 10:22AM 24 Ms. Duff may make in the Estate case regarding the 401K, and I 10:23AM 25 don't think she has had a complete community to review and look

4

10:23AM 1 at everything on the Woodforest account. But I think just what

10:23AM 2 we are asking for is very simple, the only relief that was

10:23AM 3 granted by the Order that we propose is the two accounts that

10:23AM 4 everybody agrees that are subject to garnishment and all other

10:23AM 5 relief is denied, meaning that in the garnishment action we are

10:23AM 6 not getting anything from Woodforest. We are not getting

10:23AM 7 anything from the retirement account. We are only getting the

10:23AM 8 two accounts that everybody agrees are subject to garnishment.

10:23AM 9 It's a very simp 1 y, straightforward Order.

10:23AM 10 THE COURT: Is this a new Order you have or is

10:23AM 11 it the one I'm looking at? The one, January 7th, that's the

10:23AM 12 old Order, isn't it?

10:23AM 13 MR. BLUMROSEN: Yes. I filed this. It was

10:23AM 14 accepted. I filed it yesterday.

10:23AM 15 THE COURT: Okay.

10: 23AM 16 MR. BLUMROSEN: That's it. And the only change

10:23AM 17 I'm making where I wrote in. I've shown it to counsel where

10:23AM 18 I'm asking

10:23AM 19 THE COURT: Okay.

10: 23AM 20 MR. BLUMROSEN: Because there is a Temporary

10:23AM 21 Injunction in place in the Estate matter that has frozen

10:23AM 22 everything and so that Order, the way I have i t reading, asks

10:24AM 23 GMS to release the funds immediately. And I put at the end,

10:24AM 24 11 upon release of the Temporary Injunction." I spoke to Mr.

10:24AM 25 Lipman yesterday. He is counsel for GMS. As far as he is

5

10:24AM 1 concerned, he is just saying whatever the Court orders us to 10:24AM 2 do, that's what we wi 11 do with the two accounts that y' all are 10:24AM 3 talking about. 10:24AM 4 THE COURT: Okay. 10:24AM 5 MS. DUFF: And Your Honor, I'm working on the 10:24AM 6 release of the Temporary Injunction to get all the remaining 10:24AM 7 assets to the correct place. We have a -- I think the only -- 10:24AM 8 probably the only contention is going to be with regard to the 10:24AM 9 401 K and what portion of that goes to the Estate. And I need 10:24AM 10 to get with my client on that. And, unfortunately, after I 10:24AM 11 spoke with Ms. Anderson, I had the creeping, crawling crud for 10:24AM 12 a little while and haven't been able to get with my client on 10:24AM 13 this, so I apologize. 10:24AM 14 THE COURT: So your 401K issues are more 10:25AM 15 community property issues? 10:25AM 16 MS. DUFF: Yes. The question is how much is 10:25AM 17 community that belongs to her, the Decedent, and how much 10:25AM 18 remains with him. 10:25AM 19 THE COURT: Okay. 10:25AM 20 MS. ANDERSON: And Judge, if you will recall, it 10:25AM 21 was the POA's Motion to Quash the Writs, and so the Order I'm 10:25AM 22 proposing, and I'm sorry, I only have one with me and I will 10:25AM 23 hand it to you in just a second, this is an Order partially 10:25AM 24 granting the Motion to Quash. I mean, that's what the motion 10:25AM 25 was and that's what they are trying to avoid, is any negative

6

10:25AM 1 connotation that they may have done something that was

10:25AM 2 improper. This -- we were asked to draft the Order. I drafted

10:25AM 3 it. This is the third Order. And until yesterday, I didn't

10:25AM 4 receive any response and unti 1 today they hand wrote in, you

10:25AM 5 know, pending the release of the Temporary Injunction. And so,

10:25AM 6 you know, we did the work. No one says anything unt i 1 the day

10:25AM 7 before and the day of and then it's not good enough. This

1o:26AM 8 includes his 1anguage. I took his Order and put it in this

10:26AM 9 Proposed Order. What this also does though is it covers Mr.

1o:26AM 10 McAfee's two accounts. His Order doesn't even address

1o:26AM 11 Woodforest, it only addresses GMS. This one explains the GMS

10:26AM 12 account. It explains the account numbers that go to Mr.

1o:26AM 13 McAfee, not just the account numbers that go to Mr. Bl umrosen.

10:26AM 14 So this one addresses Mr. McAfee's account numbers and it

10:26AM 15 addresses Mr. Bl umrosen' s client's account numbers, which go to

10:26AM 16 which. In this one, what I had proposed was that everyone has

10:26AM 17 agreed to release the Temporary Injunctions and the other the

10:26AM 18 cause number. We want their client to get her money. We are

1o:26AM 19 not going to contest it. We are not going to oppose it, and

1o:26AM 20 it's a substantial amount of money, a substantial amount, and

10:26AM 21 so they won't agree to release it until after we discuss, well,

10:27AM 22 you know, how are you getting this per court order but the

10:27AM 23 release, I mean, the Injunction applies to Mr. McAfee but not

10:27AM 24 to you? And that's what 1ed to his change.

10:27AM 25 The other thing, Judge, is I don't even think

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10:27AM 1 there is a Temporary Injunction in place. I think everyone has 10:27AM 2 honored it because everyone understood what the intent was of 10:27AM 3 the parties and the intent of the Court but I can't even learn 10:27AM 4 what the base lawsuit is that the Temporary Injunction was 10:27AM 5 filed for. It's my understanding also that there is no ending 10:27AM 6 to the Temporary Injunction and the only way one can be valid 10:27AM 7 is if there is a final trial date that says on this date this 10:27AM 8 Temporary Injunction ends and wi 11 either go away or turn into 10:27AM 9 a Permanent Injunction. So I believe there is not even a 10:27AM 10 Temporary Injunction in place. I will go along with what's 10:27AM 11 been going on but we were here two weeks ago and the issue 10:28AM 12 garnishment was decided. That's over. The only thing that 1o:28AM 13 needed to be added was to make the payment to Mr. Bl umrosen 10:28AM 14 and/or his client. That's been done. And so this is the 10:28AM 15 Proposed Order that covers both parties and both banks in the 10:28AM 16 garnishment proceeding. 10:28AM 17 MS. DUFF: Your Honor, if I may, I have never 1o:~AM 18 even been served with any of these documents from Ms. Anderson. 10:28AM 19 I I m down here at Mr. Bl umrosen Is request. 10:28AM 20 THE COURT: Do you -- and have you seen this? 10:28AM 21 MR. BLUMROSEN: Yes. And the reason that we 10:28AM 22 have objected to it, and I want it to just respond to a couple 1o:28AM 23 of things that Ms. Anderson said. Her co-counsel , Mr. Tei r, I 10:28AM 24 believe, left me a voicemail that same day, sent me an Order, 1o:28AM 25 and I si nee faxed him back. We have been going back and forth

8

1o:28AM 1 on different things. It wasn't the first time was yesterday. 10:28AM 2 We have sent changes. We don't agree with what she is 10:2SAM 3 proposing because it could potentially prejudice what the 1o:2aAM 4 Estate might want to do. What she is doing, and again, Your 10:29AM 5 Honor, we sti 11 have the same issue. I don't think she has any 10:29AM 6 standing at all to even be doing this. She is still -- she 10:29AM 7 just to 1d a minute ago she only represents Mr. Storer. She 10:29AM 8 doesn't represent Mr. McAfee. And I thought the Court was 10:29AM 9 pretty clear last time that you don't get to cherry pick. You 10:29AM 10 are either in this case or you are not in this case. She is 10:29AM 11 here to help. We believe that the Order that we proposed does 10:29AM 12 exactly what she is asking for, we don't get the garnishment of 10:29AM 13 the 401 K. We don't garnish the Wood forest account. A11 we get 10:29AM 14 are the two accounts everybody has agreed to and everything 10:29AM 15 else is left that way. All other relief that's requested in 10:29AM 16 the -- in that case under our garnishments is denied. So I 10:29AM 17 believe it accomplishes the goal and the discretion that the 10:29AM 18 Court has and what the counsel wants the Court to do is to bend 10:29AM 19 over backwards to give any discretion the Court might have to 10:29AM 20 her client when her client really has not participated in these 10:29AM 21 proceedings since the judgment was entered and continues not to 10:30AM 22 participate in the post-judgment discovery. 10:30AM 23 MS. ANDERSON: Judge, first, with regard to Ms. 10:30AM 24 Duff and the notice, and I was curious about the standing of 10:30AM 25 the garnishment proceeding and did research because we did talk

9

10:30AM 1 about that at our 1ast hearing, the garnishment proceeding is a 10:30AM 2 separate and di st i net case from the underlying case. There is 1o:~M 3 no doubt about that. Our notice went to Mr. Blumrosen because 10:30AM 4 he is the person who issued the writs on behalf of his client 10:30AM 5 and, of course, the two banks. That was all it had to do, and 10:30AM 6 I don't mean to be rude with Ms. Duff, but she wasn't entitled 10:30AM 7 to notice. I'm trying to let her know so that she can 10:30AM 8 participate so that we can try and resolve everything. The 10:30AM 9 idea about Mr. McAfee not participating in this, he is in jail. 10:30AM 10 There is nothing stopping either of these attorneys from going 10: 30AM 11 to jail and deposing him or subpoenaing a release and having 10: 30AM 12 him come here to compel him to do whatever. They are in a 10:31AM 13 position now where there is an agent trying to resolve these 10:31AM 14 issues. And I think we have made a lot of progress to where 10:31AM 15 everything is resolved except one account, everything, and so 10:31AM 16 I'm wanting to release it to her, give it to her and, instead, 10:31AM 17 they are wanting to maintain it for whatever reason. I don't 10:31AM 18 know, they all agree that Social Security is his separate 10:31AM 19 property. It will never go to her. 10:31AM 20 With regard to the 401K plan, if she has a claim 10:31AM 21 against it, so be it. Make the claim or let's work something 10:31AM 22 out. If she prevails on the claim, she is going to get a 10:31AM 23 judgment. If she gets a judgment, she is a judgment creditor 10:31AM 24 and -- 10:31AM 25 THE COURT: The 401K, what's the, I mean, is it

10

10:31AM 1 an asset that accumulated during marriage? 10:31AM 2 MS. ANDERSON: There was a portion of it. 10:31AM 3 THE COURT: So that's the problem, there was a 10:31AM 4 portion of it. 10:31AM 5 MS. ANDERSON: And determining that dollar 10:31AM 6 amount. Now, Ms. Duff and I have spoken, I thought we were on 10:31AM 7 the same page that we are going to get to that dollar amount. 10:32AM 8 It just couldn't get done by today. 10:32AM 9 THE COURT: What I'm doing here today, either 10:32AM 10 way, how much am I allowing you to garnish? 10:32AM 11 MR. BLUMROSEN: Eight thousand and something 10:32AM 12 dollars and change. It's the two accounts that we agree are 10:32AM 13 subject to garnishment. 10:32AM 14 THE COURT: And so you don't -- you think -- and 10:32AM 15 what's wrong with her comprehensive, I mean, it almost sounds 10:32AM 16 1 ike there is a settlement proposal, but 10:32AM 17 MS. ANDERSON: I'm trying to give it all to 10:32AM 18 them, Judge. They just won't take it. 10:32AM 19 THE COURT: So what do you is there a concern 10:32AM 20 that what they are offering really isn't all that you are 10:32AM 21 entitled to? 10:32AM 22 MR. BLUMROSEN: No. There is a question about, 10:32AM 23 I mean, they are making bold statements in the judgment about 1o:32AM 24 accounts that may or may not -- they had something worked out 10:32AM 25 and she is kind of combining the --

10:32AM 1 MS. ANDERSON: But what bold statement? 10:32AM 2 THE COURT: She is just being comprehensive and 10:32AM 3 it may spi 11 over into your area and 10:32AM 4 MR. BLUMROSEN: And I don't want to -- whatever 10:33AM 5 they -- either they are going to be able resolve the 401KI or 10:33AM 6 they are not I there may be a hearing 1 I don't know I but I just 10:33AM 7 think the Order that I proposed is generic enough I it 10:33AM 8 accomplishes the goal of letting us garnish the $81000 and 10:33M 9 change while still leaving the issue, that everything else is 10: 33AM 10 denied. We are not trying to get Woodforest account. We are 10:33AM 11 not trying to go after the other account. It's very clear by 10:33AM 12 that Order we are not doing that. But it still leaves open 10:33AM 13 whatever fight there may be, and they may work it out and they 10:33AM 14 may settle it, but we don't want to have any Order entered that 10:33AM 15 may prejudice what the Estate is trying to do with regard to 10: 33AM 16 the 401K. 10:33AM 17 MS. ANDERSON: Judge, those statements are just 10:33AM 18 the facts. They don't prejudice the Estate in any-- it's just 1o: 33AM 19 facts, that he has an account number 1 it's this number, that 10:33AM 20 it's not subject to garnishment. He has got another account 10:33AM 21 number. It's this number. It's not subject to garnishment. 10:33AM 22 Those are facts. And those are true facts, and so it doesn't 10:33AM 23 affect the Estate at all . And I'm here as an officer of the 10:33AM 24 Court saying over and over and over again, I understand there 10:33AM 25 is an issue to the 401K plan. I understand we began talks

12

10:34AM 1 about it and I anticipate and hope we can just resolve that. 10:34AM 2 What I can't get is, why won't they take everything else now? 10:34AM 3 The only reason I can think of is because that means that he 10:34AM 4 would also get access to his Social Security account. He has 10:34AM 5 zero access. He is depending on other people to even give him 10:34AM 6 that money for whatever that account is in prison, you know, 10:34AM 7 and people can't afford that. He has Social Security assets 10:34AM 8 that he could use but it continues to tie up his assets only 10:34AM 9 because they don't want their millions now. 10:34AM 10 MS. DUFF: Your Honor, actually, mine is a 10: 34AM 11 little bit more blanket. I don't want to cherry pick on the 10:34AM 12 release of the TRO as it goes to GMS, which is where the vast 10:34AM 13 majority of the accounts are and just say -- I don't want that 10:34AM 14 to be confused. I actually have an Order releasing that. I 10:34AM 15 just need to go over with my client and make sure everything is 10: 34AM 16 correct, deal with the 401K, and I think it whole TRO can be 10: 35AM 17 released to my client. I want specific language that those 10:35AM 18 accounts are going to Ms. Foltyn, Mr. and Mrs. Foltyn's will go 10: 35AM 19 directly to her. And I want specific language in there. I 10:35AM 20 think this can be wrapped up very quickly. In fact, I was 10:35AM 21 planning on filing my Motion to Release and then this 10:35AM 22 garnishment issue came up which has held up the process a 10:35AM 23 little bit. 10:35AM 24 THE COURT: Okay. So, you are on the Estate 10:35AM 25 side trying to do what you normally do in an Estate and you

13

10:35AM 1 have got the 1 awsui t, and it doesn't matter what character he 10:35AM 2 is saying, you want whatever assets, we 11 , except exempt 10:35AM 3 assets, of course, you want whatever you think you are entitled 10:35AM 4 to or can get to? 10:35AM 5 MR. BLUMROSEN: Yes, sir. 10:35AM 6 THE COURT: And you are trying 10:35AM 7 MS. ANDERSON: Trying to give it to them.

10: 35AM 8 THE COURT: mostly trying to protect the 10:35AM 9 exempt assets? 10:35AM 10 MS. ANDERSON: Two accounts, and give them 10:36AM 11 everything else. And I wi 11 say, Judge 10:36AM 12 THE COURT: And have you ever is the Power of

10:36AM 13 Attorney any part of this? Has it been fi 1 ed? 10:36AM 14 MS. ANDERSON: Yeah, the day that we were -- 10:36AM 15 it's fi 1 ed in, I want to say, the real property records or 10:36AM 16 maybe probate records. 10:36AM 17 THE COURT: But can't you do like a Notice of 10:36AM 18 Appearance? 10:36AM 19 MS. ANDERSON: I did, Judge.

10:36AM 20 THE COURT: Oh, you did?

10:36AM 21 MS. ANDERSON: I did a Notice of Appearance. I

10:36AM 22 gave Mr. Blumrosen a copy of the Power of Attorney when we were

10:36AM 23 here last time. 10:36AM 24 THE COURT: So that he could scrutinize it and

10:36AM 25

14

10:36AM 1 MS. ANDERSON: And I specifically wrote asking,

10:36AM 2 when we do this discovery, because he is going to do it as the 10:36AM 3 agent, is that going to be okay with you or are you going to

10:36AM 4 raise the standing issue again? My guy doesn't want to go

10:36AM 5 through the expense and the work if, when he gives it to him,

10:36AM 6 he says, you don't have standing as the agent under the Power

10: 36Atl 7 of Attorney. I haven't gotten an answer. I got my answer

10:36AM 8 today, I guess there is still a standing issue. You see? So

10:36AM 9 there is no way I can go, you know, if I'm giving it to them, I

10:36AM 10 have standing. If I don't do it exactly correct, I don't have 10:37AM 11 standing. And so what we are doing is everything that's being

10:37AM 12 asked for. My guy has already gone to the prison once. He is 10:37AM 13 there this morning to verify and get the Answer signed. And 10:37AM 14 they are getting it. And that's all we have. What there is is

10:37AM 15 all we have. I don't know what else we can do. The only thing 10:37AM 16 that we are wanting is the release of the Social Security money

10:37AM 17 and the 401K plan. If there is an issue over the 401K, so be 10:37AM 18 it, don't release it. Just release it all to her except the

10:37AM 19 401 K plan because we have an issue on it. And then everyone

10:37AM 20 gets their money. A 1ot of it. 10:37AM 21 THE COURT: Okay. All right, well , 1et me, I

10:37AM 22 mean, all I can do is just scrutinize both proposals and just

10:37AM 23 decide like which one and look at the distinctions. I just 10:37AM 24 want to be c 1ear on the nuances of each one and why it's, you

10:3BAM 25 know, see if I can really agree one way or the other that it's,

15

10:3BAM 1 you know, one is harmful or one is not or one does something 10:3BAM 2 that it shouldn't do at this point, so that's what I need to 10:3BAM 3 1ook at. 10:38AM 4 MS. ANDERSON: And please keep in mind, because 10:3BAM 5 you are a 1awyer too, not just a judge, you are going to see 10:3BAM 6 why he wants it his way and why I want it my way as far as -- 10:38AM 7 THE COURT: Well, tell me. I mean 10:38AM 8 MS. ANDERSON: There is a question of whether or 10:38AM 9 not -- 10:38AM 10 THE COURT: Because right now I'm thinking that 10:3BAM 11 one is a little more detailed and gives him what he wants, Mr. 10:38AM 12 Blumrosen, and one is not as detailed and more generic and 10:3sAM 13 gives him what he wants. 10:38AM 14 MS. ANDERSON: Right. And nothing gives this 10:38AM 15 side what it needs, which is the relief I came to you with, 10:38AM 16 which is a Motion to Quash, and so we are partially quashing 10:38AM 17 and leaving the rest. 10:38AM 18 THE COURT: Quash as to exempt assets. 10:38AM 19 MS. ANDERSON: Correct. 10:39AM 20 THE COURT: And that's what you were limiting it 10:39AM 21 to? 10:39AM 22 MS. ANDERSON: That's it. And describing those 10:39AM 23 accounts. 10:39AM 24 THE COURT: I will look at it. 10:39AM 25 MS. Anderson: And those facts are true. I will

16

10:39AM 1 tell you with the nuance I there are questions that I don It want 10:39AM 2 to, and I have spoken with Ms. Duff, our side doesn't want to 10:39AM 3 get into them if we enter a fair and proper Settlement 10:39AM 4 Agreement. But whether or not that garnishment was even proper 1o:39AM 5 to begin with is an issue. We don't care so long as we can get 10:39AM 6 this over with. But if they are going to, you know, I have got 10:39AM 7 a ten -day 1etter 1 they are going to sue the ex-wife and son 10:39AM 8 now, you know I if I di dn It respond within ten days. Well, I 10:39AM 9 don't represent them and I don't get call backs, so I can It even 1o: 39AM 10 meet his deadline. So I you know, if they are going to start 10:39M 11 that kind of stuff where they are going to be suing people 10:39AM 12 again, then, yeah, I'm going to look into the question as to 10:39AM 13 whether or not what his client did was proper, among other 10:40AM 14 things. So those are the nuances. You know, we are getting 10:40AM 15 hit with more than what's before the Court that you are not 10:40AM 16 aware of and these are new threats I new 1awsui ts, and I'm just 10:40AM 17 here to try and end it. 10:40AM 18 THE COURT: The allegation would be that the 10:40AM 19 ex-wife or son may have received assets they have gotten 10:40AM 20 pending whi 1e a $2 mi 11 ion judgment was outstanding? 10:40AM 21 MS. ANDERSON: Right. Before the judgment was 10:40AM 22 entered and before the Temporary Injunction was entered, they 10:40AM 23 used $25,000 to buy the 16-year-old a truck. 1o:40AM 24 THE COURT: Okay . 10:40AM 25 MS. DUFF: And I believe that all was out of the

17

10:40AM 1 Woodforest account. 10:40AM 2 THE COURT: Well, let me look at each one. 10:40AM 3 MR. BLUMROSEN: Judge, I'm trying to bite my 10:40AM 4 tongue based on here four-and-a-half years later and making 10:40AM 5 allegations about something being improper and I will just 10:40AM 6 leave it at that. It's hard to sit here and listen to that. 10:40AM 7 We are trying to do post-judgment call ecti on on Mr. McAfee. 10:40AM 8 THE COURT: Well, to me, obviously, I want to 10:40AM 9 follow the law, but to me, I mean, it seems that one way or the 10:41AM 10 other, this eight thousand plus dollars is something you are 10:41AM 11 going to get. So to exacerbate or to make that into a bigger 1o: 41AM 12 fight, it doesn't seem prudent, but the rest of it, you know, I 10:41AM 13 just -- how close, I mean, do you -- are you hearing things 10:41M 14 that make you think that this is going to get resolved easily 10:41AM 15 or is there something outstanding that he may have that's going 10:41AM 16 to be really -- turn this into more complicated than it already 10:41AM 17 is? 10:41AM 18 MS. DUFF: I think the only complexity is going 10:41AM 19 to come up with the 401K. 10:41AM 20 THE COURT: Okay. 10:41AM 21 MS. DUFF: I think the only complexity is going 10:41AM 22 to come with the 401 K, and that's whether or not we can work 10:41AM 23 out something as to what percentage interest my client waul d 10:41AM 24 have a claim to. 10:41AM 25 THE COURT: So you're thinking that you have,

18

10:41AM 1 and I'm not trying to hal d you to this, but that you have a

10:41AM 2 good understanding of what's out there or is there sti 11 --

10: 41AM 3 MS. DUFF: We have, over the last four years

10: 41AM 4 THE COURT: -- an idea, well, we kind of know

10:42AM 5 some defined assets but we are not clear on a 1at of things

10:42AM 6 that may impact what has trans pi red over these years?

10:42AM 7 MS. DUFF: I am reasonably sure that we have

10:42AM 8 found, i f not all , at 1east the vast majority of the assets.

10:42AM 9 That's all we could find.

10:42AM 10 THE COURT: That can be enjoined?

10:42AM 11 MS. DUFF: Yes.

10:42AM 12 THE COURT: Okay.

10: 42AM 13 MS. DUFF: And I am reasonably sure that we have

10:42AM 14 everything. I am reasonably sure that the Inventory accurately

10:42AM 15 reflects what was out there. The two issues, which one we

10:42AM 16 could see, the Woodforest, is that's all SSI money. My client

10:42AM 17 has no claim to that. We can see that. As long as that's an

10:42AM 18 accurate statement, it's all SSI. The 401K, I think which is

10:42AM 19 where the majority of the assets at GMS are, I believe that is

1o:~M 20 where there will have to do some negotiating, and it depends on

10:43AM 21 what my client wants to do. And the rest of the assets, I

10:43AM 22 think that my client what's reflected in the Inventory he has a

1o:43AM 23 c l aim to .

10:43AM 24 THE COURT: Okay.

10:43AM 25 MS. DUFF: I believe that it's accurately

19

10:43AM 1 reflected. She may complain that there was several different 10:43AM 2 Inventories that we had to go through, a 1ot. 10:43AM 3 THE COURT: And yours may be more difficult in 10:43AM 4 the sense that, whether this is true or not, I don't know, 10:43AM 5 obvious 1y, but that you have really tracked down everything 10:43AI1 6 that's out there to satisfy a judgment? 10:43AM 7 MR. BLUMROSEN: I can't we are attempting to 10:43AM 8 do that but that's obviously the point of post-judgment 10:43AM 9 discovery which has never been responded to. 10: 43AI1 10 THE COURT: Okay. All right, well -- 10: 43AI1 11 MS. ANDERSON: Judge, if I could just clarify 10:43AM 12 that on the assets, and of course our position is as far as I 10: 43AM 13 know that's everything, but they have been correct since their 10:43AM 14 original inventory, which is X amount of years ago. Okay? So 10:43AM 15 they may have changed the characterization, they may have 10:44AM 16 changed the values, but as far as, you know, maybe there is a 10:44AM 17 little account here or a little account there that they added 10: 44AI1 18 but there are no major differences. I mean, they have been 10:44AM 19 correct since the beginning other than the values. And that's 10:44AM 20 concerning because of course, you know, if something is really 10:44A11 21 worth $800,000 and they only put it for $400,000, then there is 10:44AM 22 only a credit of 200,000 toward the judgment. And so there may 10:44AM 23 be disagreement on the values. I don't care. In the end, it's 10:44AM 24 only going to affect Mr. Bl umrosen on how much goes into his 10:44AM 25 pocket. So as 1ong as we can settle that, then there shouldn't

20

10:44AM 1 be any issues, any other issues. 10:44AM 2 THE COURT: All right. 10:44AM 3 MS. DUFF: And, Your Honor, with regard to the 10:44AM 4 Inventory, this Inventory was created with, what, a week of 10:44AM 5 discovery without any part i ci pati on by the previous attorneys 10:44AM 6 for Mr. McAfee. This was done by a 1 ot of discovery on our 10:44AM 7 part on 1ooki ng for assets. 10:44AM 8 THE COURT: Right. 10:45AM 9 MS. DUFF: That's how we created the Inventory. 10:45AM 10 THE COURT: Right. 10:45AM 11 MR. BLUMROSEN: I think it's important for the 10:45AM 12 Court to know that because at the present time that Mr. McAfee 10:45AM 13 was charged with murder he used the fifth amendment, which was 10:45AM 14 fine, but I'm just saying to say that we have done everything 10:45AM 15 and know everything without any participation from Mr. McAfee, 10:4SAM 16 so if there are assets out there that he has hidden, we don't 10:4sAM 17 know about that. 10:45AM 18 THE COURT: Well, that's what I was going to say 10:4SAM 19 is, I mean, I just sort of wanted to get a feel for where you 10:4SAM 20 were, but I understand that this thing is going to continue at 10:4SAM 21 1 east in some respects until there is a comfort 1evel with what 10:4SAM 22 may be out there and how these things can get resolved in some 10:4SAM 23 fashion. 10:45AM 24 MR. BLUMROSEN: As the Court knows, assuming 10:4sAM 25 that we at 1 east get the eight thousand and change on the

21

10: 45AM 1 wrongful death action, that doesn't come close to covering it, 10: 45AM 2 so the post-judgment, the abstract, the writ of execution, it's 10: 45AM 3 all still out there, so if we ever, in five years, six years, 10: 45AM 4 come across an asset, we will still be there trying to collect 10: 46AM 5 on it. 10:46AM 6 THE COURT: I understand. All right, I think I 10:46AM 7 let me look at these proposed judgments or order and I will 10:46AM 8 do something, hopefully, by tomorrow afternoon. 10:46AM 9 MS. ANDERSON: Sounds good. Thank you, Judge. 10:46AM 10 THE COURT: Thank y'all. 10:46AM 11 MR. BLUMROSEN: Thank you, Judge. 10:46AM 12 MS. DUFF: Thank you, Judge.

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 $154.00 and will be paid by Esther Anderson 11 Given under my hand and seal of office this the 7th 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

Tab9

Order Partially Granting Motion to Quash Writs of Garnishment

\ .

CAUSE NO. 396935-401

INRE JANET F. McAFEE, Deceased

§ § §

IN THE PROBATE CO~RT ~

NUMBER ONE ~n

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JAKE FOLYN § ~:?~ ~ ~

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THE GMS GROUP, LLC and § WOODFOREST NATIONAL BANK, § HARRIS COUNTY, TEXAS Defendants

ORDER PARTIALLY GRANTING MOTION TO QUASH WRITS OF GARNISHMENTrANC el&8~b:'JING INJtjUOl"IGNS-

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:

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 Plaintiffs/Garnishors 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 benefit of Kenneth Cooper

McAfee.

3. The GMS account ending in 606 (SSN xxx-xx-4352) is an individual retirement ORDER PAGE1

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, T exas

Deputy

St~r11ng G. Senechal Ill

\ .

account for the benefit of Kenneth McAfee that qualifies for federal income tax

deferral. Such account holds, exclusively, funds exempt from garnishment under ~J ('J 0 Tex. Prop. Code. §42.0021(a). Because such account is exempt from

0

a.. garnishment, the writ directed to the GMS as to Kenneth McAfee's account t;r 0 ending in 606 (SSN xxx-xx-4352) should be quashed. All other accounts at GM$ (") ... that hold assets of, or are for the benefit of, Kenneth C. McAfee or Kenneth !J"'J .... McAfee remain subject to the writ.

c

N 4. Further, GMS Group, l.L.C., is indebted to Kenneth Cooper McAfee ("Judgment

0

0') <"" Debtor") in the amount of $6,694.39 and account number 55H056008 and

0

$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 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 (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,

ORDER PAGE2

Confidential information may have been red acted from the document in compliance with the P ublic Information Act.

A Certified Copy Attest: 9/29/201 5 Stan Stanart, County Clerk Har r is County, Texas

.A..ML Sterling G. Senechal Ill o Deputy

ORDERED, ADJUDGED AND DECREED that all other accounts at GMS Group

LLC, and Woodforest National Bank that hold assets in the name of Kenneth McAfee or tj' Cl')

for the benefit of Kenneth C. McAfee remain subject to the writs. Specifically,

0

0

(1, Garnishors, Rosemary and Jake Foltyn shall recover against the GMS Group, L.L.C., ~ the sum of $8,355.54, such sum to be credited to the judgment entered in the wrongful

0

(") ,.. death judgment. It is further,

If:

ORDREED, ADJUDGED AND DECREED that the payment of such sums as set

0

C\l 0 forth above shall issue from funds of the judgment debtor, Kenneth Cooper McAfee, Q') ,~

currently being held by Garnishee, the GMS Group, L.L.C., from the following accounts:

a

$6,694.39 in account number 55H056008 and $1,661.15 in account number ;;; Uf>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:

("0/1~10P.Nl1AIJTY H!lTICF.: 'THE DDC'UMENTS AC'COMPANYING llUS 'fCt.P.C'Ol'Y TRANSMISSION CONTAINS CONI'lDilliT1AL INf-<JRioiA11ClN WtiiC:H L~ l.EGIIU.Y P-0\llt.eDCJED. T11F.INFOilM..-nON IS INTENDED ONLY fo()R ·nu: USU UFl11f. I\Ert\IPIP.NT NAMP.O MOVE. IP YOU IIAVE REC:~!VP.O Till$ 'M!U!C"OPY IN ERROR. PUiA.,f.lloiMF.!ll/ITF.I.Y NOTII"' US SY Tf.I.EPIIONF. TO 4RR~<ie FOil RI!TVRN llFTliF. ORIGINAL OOCUMENT11 TO US /1140 YOU /IJU! HEAney NOTII-IF.D 1111\'f 1\I'IY DISCI.OSIJRI! r'OPYINr, DISl'RIRllllON UR 'nil! TAKING Of AI'IY /ltllON IN R~l .l/1111"1\ ON lliF. C'()N'tl:lf~ llPTIIIS TEI.f!('()rtWli INHII\MA'IlON I~ ~IRI('TI.Y PROih8TTF.O. I :Wi llW~1rd\cnlac"fU0l

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

~~ ~ ~ ~r1ing ~· '~4 - ~ Q~,Deputy

G. Senechal Ill

01/07/2015 16:39 .•_f.11> .. -----...:P..:;:.0:.:.13:::.1.;;;02;.;4~ 0&/0812.01L 1110 t12a ru U3zz•HL1 Lav Ofrtae [i'J0~2/0~1

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beulnJ onJnn 9, 2011. Thb agreement is ovidonoed by colllllala' •lsnaiiUea bolow.

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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

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Cl \4$1"1 0 .~ n. 't!~jlic:..::.,. .. Ul , lT IS 'l'aJtllUO , 1hat IC.Imne!h McAfee 11111 all ot blc office:r~, epnu, ·~ o:l .""ii.C.lll,lhigns,ra~var,BIIdll10meyaaroCII'Cielcd OllJ.MiliCil'ij

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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 DIIIDII one~ ar both ofthem u asl81Jatol)'l (lv)wh!ah~ the aare, ouSIDdy,~:a~~bol, Car Aslelf'I''"'II.,.IY'-JIIUIIea ltfiD

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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 ~_d, ~·'--'J..---.~· -11 Q ~_Deputy Sterling G. Senechal Ill 0110712015 16:40 ....J~'l:!!<t...-----.....!P..::.0~1.:::51,:::02::::4_ , , • , 0&/0B/20U !!liD II ZO IIIX 7132243111 r.aw Offioe 00UI,P11

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under 1111)' adchet• relalld to ah&er of'lll4ln, IVdlu a.prevlouarealdaa~~~~o !dative, ~antalivc, or :f'l

atu~mey'a e.ddron~ 01.'11DlllJ)811Ywhioh did bull!ncas on bDhalfof6ilhllr Kt2111DihMcAfec or Janet!I.

MIIAftlo or whl4h wu o'I'IIIOd in wbolo arm pan by e.ttberorboth at!ham. 'Ihll ~ J:noludo, lJ"i ... but are not limltDd to, lba 1bllowlllg: () c~

1, PO llax 66552, H11111tm1 !CIXIII• ?n66

N

2. PO Box. 460786 HoNiallo 'l'elW, 770511 3, 66SO Jlald!ald Sttut Boustoll, Ta;(as, 77023

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presumed !o ~ntaln CIIIIDJUunl~~~ ' I'

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eitharXe1111eth MiiAfoo ar lwtP. MoA1io orwhlc:h Will owued lA wholo orin partby

of1hem. T~ ~csinclude, but a:o not lbnited to, tho 1bllawln1:

a. PO Box 66352, &ul!on Tcrxu, 772.66

b. PO Box 460786 HoultDD, Texaa, 71056 o. 66SO PalrJieJcl l!treot Hollltoll, TOliQ, 77023 d. 2119 Taogley Ho1181DD, Twa, 'l70DS

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~~~-~<4Llt:::::.~O~n,eputy

m

Ster1ing G Senechal 0110712015 16:41 P.0161024 • , 0,/01/aOU no Ja U FAX, 7U2ZU111 Lav Olfica liiD08101~

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4. Any and all tw141.111 Btllk of-~ aocoun'll, all ot ~ab ~ pn!1IIIDilKI to clllltlln ~:U~~D~~un!ty 1\ind& ll!ld/or t\lndu ~o &late, (I) in lhe ot lliiiiiO

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Xonnelh MaA.illo or JOD.Ot F. M~o, Inc!l\'lclu~~l) ~ Mc:AfiG llld. 11111d F. MaAteo

JalmlYi (ill) whlllbliiiDICis one or both oflhDm u a ~~~~h ooniAins t\mds In1ho ouo, (:)

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culltccly, oontrol, !or lhe ~ or on beiWf of ICCIIIIOib MoAfae ll!d/or Janet P. McAJ'ae,

lndlvlc!ually or Jolu!ly; and (v) UIJder aey ddJCJ~ rela!ecf Ill olthM of them, 811r.h u a provlou.s reside~~co, rolativo, rDpmontatlve, or attorotY'• addren. orr.wb!oh did blllinoll 011.bellaltd

eitherKC~~~~~etb MoA&Io or JautP.MIIA.tia or~ell In whole or.In pattb)'ollhororbolh otthem. no adl!reiSOI laolucle, but Ito II.DI ~~ifoUowislg:

a. PO Box 66352~~-, 77266

'b, PO'Sox4~J!.i'f!• Te:ta~, 71056 b, 6650 F~~d Sbtet il!uston, Texea, 71G2S d, 21J!l Taf.l.oy_.~uej\· Texu, 71005 .

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Bllllk, Jnoludlng but not Umlted to'o ~llow!Qs, all of'whlob a:za prenmcd to ooll.laln 00111.111=!ly ~

t.lnda 1111!1/or lilnds bolondng to ~~~~ ~

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Bank. aU o!whlch pre. pr:ii!IU1~1lJ I.

r:. McAfee, Individually; (ll)Kai'.DIOth McAAo ll!ld181l01 hfU

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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

~~h;

~ : ~4~'d'=-

· _..-~~'*'~Deputy Sterling G. Senechal Ill 011071201 s , 6:41 P-0171024 ~ 11001/0U U/U/201L WID h 2\ PAll lll114llll LaY Ottioa ~.I

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·- af1hom. The addlwe:s Include, but are 110t llolllel! to, !he foUo.wlus: . ·•• C\1 0 L ~l\i. •:. .fP PO Boz 663S.Z1 HOIII!Iln Twa, 77266 :~t... .

b, PO Box 460786 Ho\lllollo T~. 056 4(J' 'ii!}~1 (

o. 6650'Paitflo1d StrootHo~:.' ,77f1l.3, ·' ~

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proaumed to coDtalll'

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ouatocly, I;CIIIIm~ tbr tho benefit, or on bthal£ of K.eunlth Mc~o end/or 11110t P. McA.fllo,

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IDfl!~~:.!'! or 1a~~~~tP. McAflle ar which wu ov.~~~ad!a Wholt ortn part'bye!therorbolh

.. e~ses lnaludc, but lllC 11Dt llmilod to, tho following:

a. PO Box 6'6352, Holuto11 Telras. m&& b. 1'0 Box 460786 Houaron, ToRI&, 77056 11. 6550 F'alrftold Saect HaUSIDII, Tlllma, 77023 sorla

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

P.018l024

0110712015 16:41

• U/081'10U IIID h2\ laX 113'Z24)Ul r.av QUJ.ce II!UJ/011

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l[j d. 2119Tmglay HoUlton, TOlall, 77005

(0 (i CITJDN8 FlNANCrAL GROUP. INC. lf1 8, Any 8lld eU fimdJ lnCilizmsP~ Qroup,Iuo.IGOC!UIIll,all ofwhloh111: .... CJ pwumed lo contain oommllllllf .limdl aM/trr 4mds belollg:iD& to tha Bctatt, (!) h1 the 1\111111 of ('~ (\J Kameth MaAfec ar JBII~ Jl. McMae, Jndlvl~ (li) 'Kcllnath MM&e ll!ld J~ p, MI!Mhe ,.. (\J jDI111lr. (111) wb!ab 111111\0S ono Ill' both ofthem •• • IIIIJI&!aey; (lv) whloh conlefns 1\mda In1ho oue,

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e\1110dy, cM~trol, for tllo beaellt or em bllbalf' of Ktmnelh McAAa .,Uor JIIIGt P, MeA~,

( individually or Jolnt!J': 111111 (v) 1mder allY addtels relW:d II! ei11u:r ar !ham, such aa a pmlow mlclwo, J'6lative, roprcao!lbltlvD, or~• r.dcl:oss, trrOOit\PII\Ywblcb dld bllllness Dll bebllfot

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d. 2! 19 Taqgl&y Houtt~m, Texu, 77005

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111111101 on~ Qrboth of!ham u aaigP.tom ('IV) whfob aontain• tlmdl in1h1101110r aatody, OIIIUtOI,fDr I .I 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 ,Jiii!!I , 01/01/2011 IIID 1121 FAX HS22U~11 lAw OfUce 11)1081011 l-.; •

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to e!lhar otthem1sucb ea aprevlo111 realdens:e, relallvo, ~ve, or U'l

~ llll)'wblahdldbu.rln•onbobaltofdthor~MCIAleeorJ'anctF.

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ni wbolo or In part by ehhor or both otthezn. The addrwal !nalwlo, Ui c:: • P Box 66352, HOUJ!On TCDI, 11266 r·.J

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,~ lu~~ ~~-,

· ' ., ..60786R'oaa~m~. Tws, 770S6 (\j ~:) o, ~ . F~~ S116et Roii&IDII, ~ 77023 d. ~ouaton, Toxaa, 77005 (

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"'~ Co,, Irto. aubalc!Jarles or Ufillaw, In~ ~led ro th6 followlns, ali at which 11.1'0 ~ presumod 1o coDIB!n c:Q1111Dlllll1f 1\lnds ~ 'belo~g to ths Bstats:

~ .. 989-03491 . b. 989.05600

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11. Any end all funds' In ODilltal & c;, BCC~~IUI!¥10 bscluc!Jn& any Gtuntet &

C..· Co., lil~ llllbaldfllliu or af61iaw, Ill orwhlab 11111 ~d tD CODtsin 001DU111Dil7 fiiDdl and/or

r

i

(tf) KoDIIath MoAt'eo aad 1anol 'F. MaAtbo jolnlly, ~tl) which nAtb 1imds blllonafniJ lo 1MEslato, (i) in tbD namo o!Kcnnolh MaAfoD or laDIItP. MoAtbo, llldlvlduaUyj

of lbom ea. a

llsnatoJ:Yi (lv) which OO!Ilalnet\.lllds In tho care, oustody, conll'Dl, :tb\l1J:~~ ~ bahalf' of Kcm!Gth MoAfeoand/or 111110tF. MMfeo. lndMdually orJolntlY:IIIlcl (v)~ an!;e"rela!cd ~o elthor or them. lw:.b. as a pzevlous rtsldenu, rellltlve, reproaematlve, ~:c · · ~ ·~ ., 1, or

company whlah did buai!IIIIS 011 behalfofellhatXemlollt MoAfco or 1anotP. .. ., wu Apol4\....,"""7b!U.Wo fttll ~

• ., .i~~A ~~l

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Confidential in form ation may have been r edacted from the document in compliance with the Public Information Act.

A Certified Copy Attest: 9/29/201 5 Stan Stanart, County Clerk Har ris County, Texas

A-<41 o Ster1ing G. Senechal Ill Deputy 0:~ (1)

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01107/2015 16:42

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aprevious rwd=~rel,tive, reprosenmdve, on balullfofeither KeiiiiCIIh M!:A~e ar J~~~~et'F. ud!Jig, bucuotllmltecl to lhe 1bllDWhlg:

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a. PO Box 66352, Hotn TClC.DI1 17266 b. PO Box 460786 HoUlton, T6lW, 110$6 l·

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. o Starting G. Senechal Ill Deputy 16:43 P.0211024 06/08/20U 11110 J12l P.U 1UZ2U1U Z.aw OUf.c• IIJUO/Dll ' ~ P,0101011 0810712011 10:59 Hltchell &Duff Attorneys at LaW IJl CIJ (" ·' () Cl.

Wcodfilre.4tNazlaDBI llllllk, Blllk at'America, N.A., BBVA Compw li'i ,....

l!ank, Wells l'qo Bank, N.A.. Cltizenr Pilumclel Group, Inc., co ()

l'ertlllns tLC. &lld O:ulllll A co., ~no., aud/or li"i ,. (U) Any lllld all e4dlll011111 fimda aiiCl U81111 w,b.lch arc JI1UIDI1ell to 0 llCIIUIIIn OOIDIIUlllltr i\lbds W/t1r timd5 blilvupq io the Bsta1o. (\j CIJ (\)

IT IS TBJr.llUOlUt OBDERED1 ADJUDGED AND DECimED that llllJI. or

0 illdlvldllfll, lnollldlng b111110t Umltod to Tb&OMS OIOIIp, LLc, WoodforestNallol!Al"Bmlk,BIIIk ot Amorlct, N.A,, Jl:BVA ConlpSN BaDk, Wella Fargo JIAIIk, N.A., CltJ!lOIIS P'manolll Group, lila.,

Jnj11110Uan Order ilr ~v~ immediately a~~cllhall c=iinu~Jn!oroo ami a!Jl::ot\llltiltho Co\utlftalce

aclclmmlnntion afwhatpiOJlort:)' belonga1o the Esrato ortho Caurttellderl &fillll.tld&aljud&ment I& In the pending wrondul doatl11111lt wollillled wlth thluzullw, which ovar lalatt:r, arb)' :lw1h.e:

otdat of tb1l Court. 'Ihls order rhall 'ba DlncliPB !Ill XfOIUictll MoAfc;c, or aey offiCCII'I, Olll,JilCI)'aOI,

sgents, .•eryanla, suC~:CSsom, 1111sigll&, J'O,Pmellta!lves, allot118YI aotlDg GD hl5 ~.and on1hDSCI

pelfOIII ill active 'Diloort or pa:tldpatl= wilh Jlim, Tbo bDI!d pomd by the Adlllilllmarrlx Ia

J'OCjUh'ed to~ poatcd.

JaiiO

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

Jt;_44_ Sterling G Senechal Ill _Q Deputy

P.022/024

01/07/2015 16:43 • OS/08120n IIBII PI U PAX 1UZ2U1U Low Dttice I!JOU/GU

1

I

0 0810712011 1o:ss Hltchan& Ouff Attornayut Law P.0111011 l\J'

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

~~~ ~·. . ,.-4.m.....J-r;~.4L~~·Q~_Deputy Stfirling G. Senechal Ill

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[] ,....

or in equity.

Ul .....

0

r.J Respectfully submitted, en

0

(I)

~:~1(;]ll-9

0

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

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

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.

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.

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.

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?

1 THE COURT: You may.

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

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

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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. Arl<ansas, 485 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.

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A.-Jd St,:;.rilng G. Senechal _a II!

Deputy

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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

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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.

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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

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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

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ft,A./_ o - -ES\Itfe'lfirlftfln\f:lgr-EQ:r--ESeW,ntiieetBI'h*l&ll-1WIIII --- - - -- ·D eputy

Ui

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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

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A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas

A4dSt•'!rllng G. Senechal et

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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.-Texari<ana 2014)

("Social Security benefits are not subject to division under community property

laws"); In re Marriage of Everse, 440 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

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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

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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 C)

c."' \,./

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

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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

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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

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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

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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

1

01/0B/2015 RP2 ~28.00 C'"J () ~· ••'

DURABLEPOWEROFATTORNEYFOR a. lf'i

Pa KENNETH COOPER MCAFEE

N

il"l f"l>

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 C)

.., ~-.

legal capacity will be that of an agent and trustee .

\...

APPOINTMENT OF THE PERSONAL REPRESENTATIVE

I appoint my CHARLES RUSSELL ST<iRER ~my Personal Representative. IUL.f My Personal Representative ma.x elect to receive a rel!sonable compensation for service considering the time required in the adspinistration of mY affairs and the responsibility assumed. My Personal Representative may delegate to a·state or' national banking c!XJloration, having trust powers and an active trust department, by agency agreement or otherwise, any one or more of the following administrative functions: the custody and safekeeping of assets, record keeping and accounting, and/or investment authority. The expense of the agency or other arrangement will be paid as an expense of administration pursuant to this power of attorney.

My Personal Representative will serve without the requirement of bond or other security, and will have the authority given to agents by Texas law and to trustees under the laws of the state of Texas.

This power of _attorney is revocable and revocation will be effective only if my written and acknowledged revocation is filed of record in the Deed Records of Harris County, Texas. . Aiiy person, entity, or institution dealing with my Personal Representative will be entitled to rely ul'on niy Personal Representative's sworn statement that this general power of attorney has not been revoked and that the Personal Representative is authorized and empowered to serve. Further, any person, entity, or institution dealing with my Personal Representative will be entitled to rely upon a copy of this Drurable Power of Attorney to the same extent they could rely on the original of this document. I indemnify and hold harmless any person, firm, institution, or agency from any loss or claim whatsoever in relying upon such statement, lind to this end, I bind myself, my estate, my heirs, successors, and assigns. I vest in my Personal Representative the authority to

Pagelof4

I j

EXHIBIT

/

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A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas

_AA4Starting ~"' Senechal Ill Q Deputy

('') (l"J

0

CJ record this power of attorney at any reasonable time, and to the extent I may lawfully provide, my c~.

Personal Representative may do so at any time before the Personal Representative is to act with U'! respect to any third party who may be asked to rely upon this document. C\1 Ill "" AS A GENERAL POWER OF ATI'ORNEY

.."' i!~ This docwncnt is to be construed as a general power of attorney vesting in my Personal ;·RepreSentative complete and absolute authority, without my joinder or consent, to transact for me N'".. ~

aii.ti!l .mY behalf any and all business I might transact if personally present and acting. Any C:'l transaction completed on my behalf by my Personal Representative will be binding upon me, my U1 ,::II

estate, my succe~ors; .and assigns.

'·" Most general. powers of attorney attempt to list the specific power or authority in a c· Personal Representative. I .ani cpncerned that the attempt to make a comprehensive list might in some way limit my Personal Representative's authority. The authority I vest in my Personal Representative is comprehensive and unlimited.

My Personal Representative will have the authority to continue during any period or episode of my disability any progmm of plaMcd giving which I may have established. The continuation of a program or plan pf giving. wHich includes aMual gifts to my Personal Representative will not be a breach of trust or an act of self-dealing on the part of my Personal Representative.

This power of. attorney is to be considered arid co~rued as being a durable power of attorney and will not tenninate upon my disability. As a trust, the authority of the Personal Representative will continue following my death for a time reasonably needed to complete administration of the property which, at the time of my death, was in the custody or control of my Personal Representative. This would include, for example, all property held in thc;: .name of my Personal Representative as trustee.

AUTHORITY AS A TRUSTEE

I vest in my Personal Representative all of the power and authority given to trustees by the trust laws of the state of Texas. If my Personal Representative determines that it is in my best interest under the facts and circumstances then existing, I authorize my Personal Representative to take possession of any and all of my property and estate, as trustee, and to hold, conserve, ami administer such property for me and for my general welfare. My Personal Representative will be responsible only for the property of my eslale over which my Personal Representative shalli!Sserl direct control, and will not have liability for the loss of income from, or the dep~ciation in value

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A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas

./1:..44_ Sterling G. ~·: ·m ohallll Deputy

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C) c:1 of, assets which my Personal Representative does not possess or which are retained in the form c. my Personal Representative received them. ~·I

My Personal Representative will have the authority to employ such professional help and ~~ Vi consultation as needeq to assist with the prudent administration of my property and to provide for ~· my welfare. The expense of professional help, consultation, and assistance will be an expense of l!'l administration.

(~ My Personal Representative is authorized, upon my death, to make direct payment for any ... E-J . expense related to my hospitalization, illness, treatment, and care prior to my death, and any expense related to my death and the settlement of my estate. The trust created by this document () l.f'i Vlill ·.!Xl.ritinue for a reasonable time in which to conclude administration, pay expenses of 0 tc!nnii\ation·(iricluding the discretional)' payment of expenses and estllte settlement costs), and to

c· make di'stribution of the trust property to those entitled thereto.

RATIFICATION AND INDEMNITY

I ratifY and confinn all that my Personal Representative will do or cause to be done by reason of the authority vested by this pDW7f of attorney and by law. I further provide that my Personal Representative may indemnifY .anlJ ·hold harmless any third party who accepts and acts under this power of attorney. No person, firm, agency or entity will be obligated to see to application of payment delivered to my Personal Representative for or on my behalf. I bind myself, my estate, my successors, heirs, and assigns, to irUlemnizy and hold harmless any person, agency, or entity from any loss or claim which may be sustained as 'the result of relying upon this document and the authority of my Personal Representative. My Pc;rsonal Representative is authorized to proceed in my name and on my behalf against any person, agency or entity who oi

will fail or refuse to recognize the authority of my Personal Represe~tatjve who. will ref'use to transact business with my Personal Representative to my hann and detriment.

CONCLUSION

This power or'attomey, and the trust it represents, is dated and effective the date set forth below.

DATE: ----"';T-'-n-"-_·~..!1"'7_ _ ___,._., 2013.

7

/(~ C'ao ?~ vY/'-4'). - \Q{)

U

KENNETH COOPER MCAFEE f"-

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A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Ha r r is County, T exas

AAdSter11ng G Senechal Ill Q Deputy

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0 STATE OF TEXAS § c~ § COUNTY OF POLK § Ui -;}7f-fl-. rfl "J y .. : . ...

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On this ,?7 day of:&eG;K;~b;r :Z013 1 before me, a Not~ P.ubfip:fo~ the State of .. Iii

Texas, personally appeared KENNETH COOPER MCAFEE, pcrso~ity IQl~\iffi to me (or U! proved to me on the basis of satisfactoty evidence) to be the person whosf? name js subscribed to ,.... the within Instrument, and acknowledged that he executed the .same· and"tcir ihe purpose and C1 (\J consideration therein expressed. "" WITNESS MY HAND AND OFFICIAL SEAL.

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c .........."""'. ~ NOTARY PUBLIC STATE Df 1EXAS

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My Convnbllllll Eljllru 0111112011

·r. My Commission Exirtes: <!>I -16 -~I <if

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O~~.qes .S~/l..e(l;· RECORDER'S MEMORANDUM:

At tho \lmo of rocr'11ollon, tblf lnolrvmont wu ~ '-' S"o f"A ,'P-Fi f>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,

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A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas

Af;_..dd_ Ster11ng G. Senechal Ill .G Deputy i.O (';i 0 .. ..: . ... "I

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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

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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 (J c~

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 \'"u

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,

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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

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~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

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(\) '\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

~----------------------------------------------------------------------------------

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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

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'11 '\t 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 lf'l C'J 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).

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.ft,..J4. _Q -~StaatFftHflfl'tE§HG~&!t481!1fRM!ec;t,~a_.!-+fi~I-L_ _ _ _ _Deputy

"1 ~l' Ci C' (1988). Cl. lf"l

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 .. ..... ... "'""' ,..,,.,.,.,.,"......................-........ . . .

,.. ,..

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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.

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A~d G. Stertlng Senechal Ill o Deputy j·... ~ ~:) () 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 (~ u~ 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).

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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.

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(']) ~ (,J

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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.

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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.

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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 C) 0 source of funds In bank account except for one gift were social security Cl..

benetits). 10

ttl

N

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 ~) lil

0

t;J Savings Plan, at p. 3, \{6 (describing employee contributions as 401(k) lax- Cl,

deferred contributfons). 11 U"l ('J 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 Nui \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<Pf1thjnug,..-,G;P.:--Sea-ar...,tecncMt1H•at~-1-HII,t...l_ _ _ __ Deputy

PRAYER

WHEREFORE, PREMISES CONSIDERED, Charles starer, Power of Attorney

for Defendant, Charles McAfee, respectfully prays that the Court enters an Order

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 equHy.

Respectfully submitted,

.. ANDERSON PFEIFFER, PC ..(

Is/ 'Estfier ..:~.naerson By: Esther Anderson SBN: 00792332 845 FM 517 West, Suite 200 Dickinson, Texas 77539 Office: 281.488.6535 Facsimile: 281.614.5205 Email: esther@probateguardianship.com

Of counsel on the Pleading:

Is/ 'Rooert 'leir Robert Telr Robert Telr, PLLC 845 FM 517 West, Suite 200 Dickinson, Texas 77539 Office: 832.365.1191 Facsimile: 832.550.2700 Email: rob@teirlaw.com

Attorneys for Mr. Charles starer

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

CERTIFICATE OF SERVICE

,.. I, Robert Telr, undersigned below, 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 on this 19th day of November, 2014.

,... '..)

N

Is/ :Ro6ert 'I'eir RobertTeir

-c. cc: Matthew E. Lipman Faust Oppenheim LLP 488 Madison Avenue Via Electronic Service Provider & New York, New York 10022 Facsimile 212-371-8410

Dean M. Blumrosen, Esq. 4615 Southwest Freeway, Suite 850 Via Electronic Service Provider & Houston Texas 77027 facsimile 713-524-5570

Defendant Woodforest National Bank 11 .._

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N:\Siorer, Chartas\Pialldlnga, MoUons, ApplcaUOOiiWiollon to QlliiSh writ of garnlshmcntdocx

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

.•,

t·- U"\ PROBATE COURT 1 (.) 0 CAUSE NO. 396,935 Cl. li'r IN THE ESTATE OF § IN THE PROBATE COURT N § IJ~ JANET F. McAFEE, § NUMBER ONE ,...

§

U"r DECEASED § HARRIS COUNTY, TEXAS •" ro, 1.- MOTION TO PARTIALLY RELEASE TEMPORARY INJUNCTION r·,J -·

0

~n

COMES NOW Charles Storer, Power of Attorney for Kenneth McAfee, and Illes

this Is Motion to Release Injunction and would show the Court the following.

0

... ,) All Exhibits referenced are attached and Incorporated herein by reference as If ( i

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, LLC.,

MOTION TO PARTIALLY RELEASE INJUNCTION Page 1 of4

I

~

EXHIBIT .e;- 1

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 - . - - - - - - - - - - - - - - -- - - ----

aJ u~ CAUSE NO. 396,935 l~i () c... IN THE ESTATE OF § IN THE PROBATE COURT §

~~ JANET F. McAFEE, § NUMBER ONE N § W~l ... DECEASED § HARRIS COUNTY, TEXAS

f; MOTION TO PARTIALLY RELEASE TEMPORARY INJUNCTION ,.. 0 COMES NOW Charles Storer, Power of Attorney for Kenneth McAfee, and files C'J ~· .::1 this Is Motion to Release Injunction and would show the Court the following. u·1 ()

All Exhibits referenced are attached and incorporated herein by reference as if

C') 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 (_J

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

Follyn 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, LLC.,

MOTION TO PARTIALLY RELEASE INJUNCTION Page 1 of 4

Confidential information may have been redacted from the document in compliance with t he Public Information Act.

A Certified Copy Attest: 9/29/2015 Stan Stanart, County Clerk Harris County, Texas

A,.4.d_ Stertlng G. Senechal llf .0 Deputy

CtJ U"i CJ upon receipt of an order releasing the Agreed Order for Temporary Injunction

0

Ct. which is the subject of this Motion. !d. V1 3. Storer asks the Court to enter an order partially releasing the June 8, 2011

N

U'1 ... ~,

temporary Injunction as to the following three accounts:

Ul a. Woodforest account ending In 404, In the name of Kenneth Cooper ~·

0

N McAfee exclusively holding social security assets of Kenneth Cooper e• 0 McAfee, to Kenneth Cooper McAfee; 111 0 b. account number 55H056008 holding $6,694.39 at GMS Group, LLC, to

c·) 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. Biumrosen.

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 PARTIAUY RELEASE INJUNC'TlON Page2 ol4

Confidential informatio n 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

({;

Respectfully submitted,

0

c:i a. ANDERS0~(.%1ensJ f! N By: Esther Anderson u1 ~.. SBN: 00792332 845 FM 517 West, Suite 200 iii Dickinson, Texas 77539 Office: 281.488.6535

0 Facsimile: 281.614.5205

N

Email: esther@probateguardianship.com C) lli C> 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

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

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?

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.

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.

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.

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.

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.

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.

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.

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.

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 .

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

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 .$34,898.58 of the account funds llfll ilape!it~ into the ;.e~istry of fL {XJ-'f-UO\Q... -b ~ ~ ~~ 1-\D..rr;s,. Qo\M'"l-h.j L.:..lQ.f'L!Ol the Court~until the nature of two deposits at issue has been determined. ~ I.,I..A.e. ~ · ~+ ~ e.$\c..:k dJ1 J~ FD l t'f~\ V~Ac.ftrJ-a, C-e-~·

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

--~ -=---.. .!. =.~ 41'- !~-

. -:. V{-

_ _.Deputy

Summer Lea Willette

...

SIGNED on /J?a....y I J> (\J 0 0.. .- 0 to

L!l ... 0 (\4 (.") (\) ~i 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

------;~ ~~~+""'<=tJJI'-LIIWJ~ i/ltJJi

~_Deputy

Summer Lea Willette

APPROVED AS TO FORM:

(\j 0 Cl. •..

~:re~ 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

----'~ "'------'~IJ~ ~ \tl'i

_ illl&t

.:..........!!._ 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

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~ ---=----.. ~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

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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

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!.--=--V{(__ _ _D.eputy

Summer Lea Willette