NO. 04-15-00362-CV
JAVAN SMITH, § IN THE COURT OF APPEALS Appellant §
—versus— §§ FOR _ THE FOURTH10^CKI& _ ___ i iS
DC CIVIL CONSTRUCTION, LLC, § ri Appellee. § SAN ANTONIO, TEX:^ 3 §7° <-i ♦» rr>-:3
o
RESPONSE TO APPELLEE^S AND COURT REPORTER'S CONTEST OF AFFIDAVIT OF INDIGENCV
TO THE HONORABLE FOURTH COURT OF APPEALS:
COMES the Defendant/ Appellant, Pro Se, in the above styled case, and
respectfully submits this response to attorney Robert N. Ray's objections to the
Appellants Affidavit of Indigence, file on behalf of his clients, DC CIVIL
CONSTRUCTION, LLC, and Court Reporter RAY COUNSELLOR and states;
JURISDICTION
1. Appellant continues to object to the Courts subject matter jurisdiction in that
a forcible detainer action cannot be commenced by the appellee, prior to
the alleged landlord giving adequate notice of eviction to the alleged tenant.
2. The Court lacks jurisdiction in this matter in that:
a. There is no lease or rental agreement, between DC CIVIL
CONSTRUCTION, LLC,, and JAVAN SMITH, b. There is evidence on the record, that DC CIVIL CONSTRUCTION may
have purchased a Deed of Trust, extinguishing an alleged lenders first
mortgage priority interest in the property in question.
c. Said purchase of Deed of trust is subject to, and inferior to the
Appellants properly filed and recorded Lis Pendens.
SEE:
Long Beach Mortage Company v. Evans, 284 S.W.3d 406 (Tex.App,-
Dallas 2009, petpending
"Evansfiled this suit in state court to resolve
the competing claims between the Lis Pendens
and the deed oftrust lien. The trial court held
that the lis pendens was superior to the deed of
trust."
d. There is no evidence submitted on the record to indicate that the
appellant is in violation of any lease or purchase contract prior to the
alleged foreclosure sale.
e. There is no evidence on the record to suggest that DC CIVIL
CONSTRUCTION has assumed any contract prior to their alleged
purchase of said deed of trust.
3. Section 24.005 of the Texas property code specifically states: (b) If the occupant is a tenant at will or by sufferance, the landlord must
give the tenant at least three days* written notice to vacate before the
landlord files a forcible detainer suit unless the parties have contracted for a
shorter or longer notice period in a written lease or agreement. Ifa buildine
is purchased at a tax foreclosure sale or a trustee's foreclosure sale under a
Hen superior to the tenant's lease and the tenant timely pays rent and is not
otherwise in default under the tenant's lease after foreclosure, the purchaser
must give a residential tenant of the buildine at least 30 davs' written
notice to vacate if the purchaser chooses not to continue the lease. The
tenant is considered to timely pay the rent under this subsection if, during
the month of the foreclosure sale, the tenant pays the rent for that month to
the landlord before receiving any notice that a foreclosure sale is scheduled
duringthe month or pays the rent for that month to the foreclosing lienholder
or the purchaser at foreclosure not later than the fifth day after the date of
receipt of a written notice of the name and address of the purchaser that
requests payment. Before a foreclosure sale, a foreclosing lienholder may
give written notice to a tenant stating that a foreclosure notice has been
given to the landlord or owner of the property and specifying the date of the
foreclosure. JURISDICTIONAL SUMMARY
The Justice Court, and subsequently, the county statutory appellate court, both lack
jurisdiction in this matter in that:
There is no landlord/tenant relationship between the parties.
There is no notice of eviction that is legally sufficient to allow DC CIVIL
CONSTRUCTION, LLC to commence a forcible detainer action.
DC CIVIL CONSTRUCTION, LLC received both constructive and actual notice
of the Appellants properly filed and recorded Lis Pendens, PRIOR to obtaining
their alleged deed of trust, and said deed of trust is inferior to the appellants claim
to possession and ownership of the property.
APPELLANTS OBJECTIONS
Appellant OBJECTS as follows, to:
4. An apparent secret agreement, betweenAttorneyRobert N. Ray and Court
Recorder Kay Counsellor, involving representation of both the Appellee
and the Court Recorder, an obvious conflict of interest, that compromises
the Court's impartiality in this case.
Appellant requests the Court TAKE NOTICE, that Court Recorder Kay
Counsellor has not filed a timely objection to the affidavit of indigence, and
that there must be an attorney- client relationship between Robert N Ray and
Kay Counsellor, in order for him to represent her interest in this case. 5. The Appellant filed his Notice of Appeal, Request for Records
Transmission, and Affidavit ofIndigence, with the 4*^ Appellate court on
June '5^ 2015.
On that SAME DAY, Appellant HAND Delivered to the County Court
Clerk and the Court Recorder, and exact copy of all three documents.
6. Appellant request the court TAKE NOTICE that in addition to the timely
filing of the affidavit of indigence, the request for records transmission also
states that the affidavit of indigence had been filed.
7. Appellant requests the court take notice that:
a. No notice of counsel has been filed on the record by Robert n. ray stating
he is representing Kay Counsellor.
b. That an objection to the affidavit of indigence by the court recorder is not
in evidence on the record.
8. Appellant objects to the timeliness of the objection to the affidavit of
indigence in that:
a. Itwas accepted by the 4"* court of appeals as sufficient, and filing fees were waved.
b. That upon inquiry, the 4*** appellate court confirmed tojudge Jason Wolf, that the appellants appeal was properly and timely filed. C. That the Fourth Appellate Court has not served appellant with notice to
correct any alleged deficiency in the affidavit of indigence in accordance
with Tex. R. of App Proc. Rule 20.1 (c) (3).
9. Appellant objects to the hearing for contest of affidavit of indigence, in
that:
a. The appellate and trial court clerks fail in their duty to promptly serve
parties with a copy of the affidavit of indigence, as required in Tex. R. App.
Proc. Rule 20.1 (d) (1) and (2)
b. That the parties received actual notice of the affidavit of indigence on
June 15,2015, and did not timely file an objection in accordance with Tex.
R. of App. Proc. rule 20.1 (e)
PLAINTIFF/APPELLEES PATTERN OF MISCONDUCT
Defendant Appellant requests the court take notice that no motion to withdraw
has been filed by Antonio Pedraza, and that there is no notice of substitution of
counsel filed by Robert N Ray, therefore, it appears that both attorneys
collaborate, and are aware of and approve of the others actions as a
collaborative effort.
Defendant/appellant continues to complain to the court the following: 10 That on June, 04,2015, Defendant, a plaintiff in another case related to the
property in question in this case, appeared for a hearing in Cause No.
384445 in the County Court at Law No. 10 which was filed on March 04,
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NO. 04-15-00362-CV
JAVAN SMITH, § IN THE COURT OF APPEALS Appellant §
—versus— §§ FOR _ THE FOURTH10^CKI& _ ___ i iS
DC CIVIL CONSTRUCTION, LLC, § ri Appellee. § SAN ANTONIO, TEX:^ 3 §7° <-i ♦» rr>-:3
o
RESPONSE TO APPELLEE^S AND COURT REPORTER'S CONTEST OF AFFIDAVIT OF INDIGENCV
TO THE HONORABLE FOURTH COURT OF APPEALS:
COMES the Defendant/ Appellant, Pro Se, in the above styled case, and
respectfully submits this response to attorney Robert N. Ray's objections to the
Appellants Affidavit of Indigence, file on behalf of his clients, DC CIVIL
CONSTRUCTION, LLC, and Court Reporter RAY COUNSELLOR and states;
JURISDICTION
1. Appellant continues to object to the Courts subject matter jurisdiction in that
a forcible detainer action cannot be commenced by the appellee, prior to
the alleged landlord giving adequate notice of eviction to the alleged tenant.
2. The Court lacks jurisdiction in this matter in that:
a. There is no lease or rental agreement, between DC CIVIL
CONSTRUCTION, LLC,, and JAVAN SMITH, b. There is evidence on the record, that DC CIVIL CONSTRUCTION may
have purchased a Deed of Trust, extinguishing an alleged lenders first
mortgage priority interest in the property in question.
c. Said purchase of Deed of trust is subject to, and inferior to the
Appellants properly filed and recorded Lis Pendens.
SEE:
Long Beach Mortage Company v. Evans, 284 S.W.3d 406 (Tex.App,-
Dallas 2009, petpending
"Evansfiled this suit in state court to resolve
the competing claims between the Lis Pendens
and the deed oftrust lien. The trial court held
that the lis pendens was superior to the deed of
trust."
d. There is no evidence submitted on the record to indicate that the
appellant is in violation of any lease or purchase contract prior to the
alleged foreclosure sale.
e. There is no evidence on the record to suggest that DC CIVIL
CONSTRUCTION has assumed any contract prior to their alleged
purchase of said deed of trust.
3. Section 24.005 of the Texas property code specifically states: (b) If the occupant is a tenant at will or by sufferance, the landlord must
give the tenant at least three days* written notice to vacate before the
landlord files a forcible detainer suit unless the parties have contracted for a
shorter or longer notice period in a written lease or agreement. Ifa buildine
is purchased at a tax foreclosure sale or a trustee's foreclosure sale under a
Hen superior to the tenant's lease and the tenant timely pays rent and is not
otherwise in default under the tenant's lease after foreclosure, the purchaser
must give a residential tenant of the buildine at least 30 davs' written
notice to vacate if the purchaser chooses not to continue the lease. The
tenant is considered to timely pay the rent under this subsection if, during
the month of the foreclosure sale, the tenant pays the rent for that month to
the landlord before receiving any notice that a foreclosure sale is scheduled
duringthe month or pays the rent for that month to the foreclosing lienholder
or the purchaser at foreclosure not later than the fifth day after the date of
receipt of a written notice of the name and address of the purchaser that
requests payment. Before a foreclosure sale, a foreclosing lienholder may
give written notice to a tenant stating that a foreclosure notice has been
given to the landlord or owner of the property and specifying the date of the
foreclosure. JURISDICTIONAL SUMMARY
The Justice Court, and subsequently, the county statutory appellate court, both lack
jurisdiction in this matter in that:
There is no landlord/tenant relationship between the parties.
There is no notice of eviction that is legally sufficient to allow DC CIVIL
CONSTRUCTION, LLC to commence a forcible detainer action.
DC CIVIL CONSTRUCTION, LLC received both constructive and actual notice
of the Appellants properly filed and recorded Lis Pendens, PRIOR to obtaining
their alleged deed of trust, and said deed of trust is inferior to the appellants claim
to possession and ownership of the property.
APPELLANTS OBJECTIONS
Appellant OBJECTS as follows, to:
4. An apparent secret agreement, betweenAttorneyRobert N. Ray and Court
Recorder Kay Counsellor, involving representation of both the Appellee
and the Court Recorder, an obvious conflict of interest, that compromises
the Court's impartiality in this case.
Appellant requests the Court TAKE NOTICE, that Court Recorder Kay
Counsellor has not filed a timely objection to the affidavit of indigence, and
that there must be an attorney- client relationship between Robert N Ray and
Kay Counsellor, in order for him to represent her interest in this case. 5. The Appellant filed his Notice of Appeal, Request for Records
Transmission, and Affidavit ofIndigence, with the 4*^ Appellate court on
June '5^ 2015.
On that SAME DAY, Appellant HAND Delivered to the County Court
Clerk and the Court Recorder, and exact copy of all three documents.
6. Appellant request the court TAKE NOTICE that in addition to the timely
filing of the affidavit of indigence, the request for records transmission also
states that the affidavit of indigence had been filed.
7. Appellant requests the court take notice that:
a. No notice of counsel has been filed on the record by Robert n. ray stating
he is representing Kay Counsellor.
b. That an objection to the affidavit of indigence by the court recorder is not
in evidence on the record.
8. Appellant objects to the timeliness of the objection to the affidavit of
indigence in that:
a. Itwas accepted by the 4"* court of appeals as sufficient, and filing fees were waved.
b. That upon inquiry, the 4*** appellate court confirmed tojudge Jason Wolf, that the appellants appeal was properly and timely filed. C. That the Fourth Appellate Court has not served appellant with notice to
correct any alleged deficiency in the affidavit of indigence in accordance
with Tex. R. of App Proc. Rule 20.1 (c) (3).
9. Appellant objects to the hearing for contest of affidavit of indigence, in
that:
a. The appellate and trial court clerks fail in their duty to promptly serve
parties with a copy of the affidavit of indigence, as required in Tex. R. App.
Proc. Rule 20.1 (d) (1) and (2)
b. That the parties received actual notice of the affidavit of indigence on
June 15,2015, and did not timely file an objection in accordance with Tex.
R. of App. Proc. rule 20.1 (e)
PLAINTIFF/APPELLEES PATTERN OF MISCONDUCT
Defendant Appellant requests the court take notice that no motion to withdraw
has been filed by Antonio Pedraza, and that there is no notice of substitution of
counsel filed by Robert N Ray, therefore, it appears that both attorneys
collaborate, and are aware of and approve of the others actions as a
collaborative effort.
Defendant/appellant continues to complain to the court the following: 10 That on June, 04,2015, Defendant, a plaintiff in another case related to the
property in question in this case, appeared for a hearing in Cause No.
384445 in the County Court at Law No. 10 which was filed on March 04,
2013, and that Daniel Campo, of DC CIVIL CONTRUCTION, LLC also
appeared, with his attorney Antonio Pedraza.
11. At an impromptu hearing on June 4*^, before Judge Rodriguez, Antonio Pedraza, and his client Daniel Campo were informed that the Defendant,
Javan smith had posted a $10,000 deposit in lieu of bond to supersede the
judgment in this case.
12. That shortly thereafter, Daniel Campo began using expletives, making
threats, and acting in an aggressive manner towards Javan Smith, in an
effort to alarm, intimidate, hinder, and delay Javan Smiths, attendance and
testimony in cause no 384445, so much so, that the bailiffs for both County
Courts were sufficiently concerned for the safety of the judges, as to evict
Daniel Campo from the premises, and the hearing was postponed.
13. On June 12,2015, a hearing was held, on a motion to dismiss this suit
filed by the appellant. Immediately following this hearing was an off the
record hearing, at which time Robert N Ray requested that judge Rodriguez
issue a Writ ofPossession, despite the courts order granting Supersedeas.
This was denied. 14. On June 12"*, immediately after having his request for the writ of
possession be issued, informed Judge Rodriguez he would seek issuance of
the writ ofpossession in spite of the denial by Judge Rodriguez, and the
courts ORDER superseding the final order in this case.
15. Apparently, on June 26''*, 2015, at an ex parte hearing with Judge
Martha Tanner, for which no record was made, Robert n Ray, mislead
Visiting Judge Martha Tanner, and drafted his own "work order" directing
the Court clerk to issue the writ of possession, contrary to the courts order.
16. On July 2015, Judge Jason Wolf, granted Appellants ex parte
extraordinary motion for stay of the writ of possession after inquiry into the
status of the appeal, of which Robert N ray was given notice of immediately
thereafter in accordance with the directions of Judge Wolfe.
17. This Case was initially filed by DC Civil Construction, LLC through
their attorney Antonio Pedraza.
18. The original complaint for forcible detainer was filed in bad faith, and
DC CIVIL Construction, LLC, and their attorney had full knowledge of the
Lis Pendens, filed on this property. The original complaint was filed in bad
faith, because:
a. Tex. Pr. Code section 12.008 specifically states that a party interested in
this property must first petition the court to cancel the Lis Pendens, and post a cash or undertaking in an amount to adequately protect the plaintiff, javan
smith, in that case.
b. DC Civil Construction, LLC and their attorney were fiilly aware that
appellant was not a tenant, but was a purchaser with equity in the property.
c. Appellants equity interest in this property can only be secured in the
following ways:
(1) continued possession and control of the property
(2) the deposit or undertaking as determined by the court having
jurisdiction.
d. DC civil Construction, LLC, and their attorneys have a conspired to
defraud the appellant of his property, or adequate security thereof, by
filing a forcible detainer action, and refusing to abide by the courts orders
made in it, through a pattern ofdeception, under color of law, abuse of
their positions as court officers, to avoid paying a deposit or undertaking
to the court.
19. Attorney Robert Ray continues to file fiivolous and groundless motions and
objections in an effort to hinder and delay the appellate process of this case,
apparently, his purpose is to derail the appellate process so his client can gain
possession of the property, and deny appellant due process. This is evident in this pleading, as he refuses to acknowledge this court's
orders, both the Supersedeas deposit, and judge wolfs order to STAY pending
appeal in section "I" he states that appellant deposited $10,000.00 in an
ATTEMPT to supersede the final order.
Appellant requests the Court TAKE NOTICE that the record shows that
the cashier's check for 10,000.00 was from the account of Dorothy A.
Montgomery, and is a loan for the purpose ofthis supersedeas bond.
20. DC Civil Construction attempts to thwart the authority of the Court
having jurisdiction, by attempting to gain possession of the property
without providing adequate security to the appellant, as required by law
in the aforementioned Lis Pendens.
SUMMARY
Defendant/appellants Affidavit of indigence was timely filed, and served
upon the Court Clerk, The Court Recorder, and the plaintiffs attorney,
onJune 15'*', 2015.
The 4*** appellate court accepted and acknowledged it, and did not give appellant any notice of deficiency to correct it. Appellee and Court Recorders objection to the Affidavit of indigence is
untimely, in that they were required to file their objection within 10 days
of actual notice. The time to object has been exceeded by more than 150
days.
APPELLANTS FINANCIAL CIRCUMSTANCES
Appellant states the following in regards to his financial Circumstances:
20. Appellant is a 100% rated permanent and total disabled veteran, who
receives compensation from the Department of Veterans Affairs and
Social security disability, both of which are not attachable, either directly
or indirectly in this matter.
21. A detailed review of appellants finances will show a negative net
worth in excess of 2,000,000.00 (two million ) dollars.
Respondent requests the Court review invoices for which the appellant is
liable to pay as, filed on cause number 200CI00854 in the 166*^ district court.
22. Appellant alleges that the requirement to post cash or bonds in this
case is unconscionable, because the appellee is required to post a
substantial amount of cash or undertaking in the above mentioned Lis
Pendens. 23. Appellant states that the requirement for these bonds has caused
significant economic harm to the appellant.
RESERVATIONS
24. Appellant Specifically, and generally reserves right to pursue action
in appropriate state or federal jurisdiction in matters related to this case in
which the federal district court have extraterritorial or original
jurisdiction thereof.
Specifically including, but not limited to;
a. Any acts by The Appellees and/ or their Attorneys that may amount
to violation of 18 USC sec. 1512, for which the united stated district
courts have extraterritorial jurisdiction over in accordance with 18
USC 1512 (h)
b. Any Acts affecting the appellants business or property that may be
violations of 18 USC Sec 1962 et seq., for which there is no adequate
state remedy.
RELIEF REQUESTED
Appellant requests the following findings of fact, and for relief:
24. That the Court finds that this Objection to the Affidavit of indigence
is untimely, and it's contents to be deemed true, in accordance with Tex
R. of App. Proc. 20.1 (f) 25. That the Court find that the Ex Parte communication with judge
Tanner on or about June 26*^, 2015, resulting in a Writ ofPossession to be issued, contrary to this Courts orders, resulted in prejudice and harm
to the Appellant.
26. That the Court find that the Representation of the Court Recorder
Kay Counsellor, By Robert N Ray, amounts to an ex parte
communication with the Court, and a conflict of interest that sufficiently
prejudices the case against the Appellant.
27. That the Court find that the deposits made to date, have caused the
appellant economic harm, and the Court MUST reduce the amount of
the deposit to 50% or less of the appellants current net worth, while still
superseding the Final Order of this Court, in accordance with Tex. R.
of App. Proc. 24.2 (f).
28. That the Court find that the issues relating to title and possession of
the property are sufficiently intertwined, such that it deprives the court of
29. For an ORDER the court clerk to issue a check in the amount of
11,200.00 to the appellant, for return of his deposit.
30 For an ORDER directing DC Civil Construction, LLC and it's
attorneys, to pay the appellants reasonable costs, fees, and expenses, to the appellant.
31. For an ORDER barring a hearing on this untimely objection to the
affidavit of indigence.
32. For an ORDER dismissing the underlying suit with prejudice but
NOT the appeal associated with it.
33 . And for such other relief as the court may find appropriate.
Respectfully Submitted,
Javan P. Smith, Pro Se,
8806 Shoshoni Trl
San Antonio, TX, 78255
210-204-6594
sartproductions@yahoo.com CERTIFICATE OF SERVICE
I certify that on November 19, 2015, a true and correct copy of the above and foregoing RESPONSE TO APPELLEE'S AND COURT REPORTER'S CONTEST OF AFFIDAVIT OF INDIGENCY was DELIVERED BY HAND to Attorney of Record for PlaintifiC' Appellee DC CIVIL CONSTRUCTION, Robert N. Ray of 7272 Wurzbach Road, Suite I40I, San Antonio Texas 78240, in The Bexar County Courthouse.
Javan Smith, Pro Se Defendant/ Appellant 8806 Shoshoni TrI San Antonio, TX, 78255 210-204-6594 sartproductions@yahoo.com