ACCEPTED 14-14-00175 FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 1/29/2015 11:43:44 PM CHRISTOPHER PRINE CLERK
No. 14-14-00175-CV
IN THE COURT OF APPEALS FILED IN 14th COURT OF APPEALS FOURTEENTH DISTRICT OF TEXAS HOUSTON, TEXAS HOUSTON 1/29/2015 11:43:44 PM CHRISTOPHER A. PRINE Clerk
J. M. ARPAD LAMELL, Appellant
“Lamell”
v.
ONEWEST BANK, FSB, Appellee
“OneWest”
_____________________________________________________________
MOTION TO EXTEND TIME TO FILE APPELLANT'S REPLY BRIEF
____________________________________________________________
January 29, 2015
J. M. ARPAD LAMELL, pro se 5131 Glenmeadow Drive Houston, TX 77096 lamell@alum.mit.edu (713) 857 2483 Appellant TO THE HONORABLE COURT OF APPEALS:
Comes now Appellant J. M. ARPAD LAMELL (“Lamell”) requesting that
he be granted an extension of time for twenty (20) days in which to file his
Appellant’s Reply Brief, as attached herewith, and that this brief will be accepted as
timely filed. As grounds for such Lamell would show as follows:
I. Background
1. Appellant is J. M. Arpad Lamell. Appellee is OneWest Bank, FSB
(“OneWest”). Lamell is a non-attorney and is representing himself pro se.
2. Lamell’s appeal arises out of orders issued on January 31, 2014, signed by
the Honorable R. K. Sandill, Judge of the 127th District Court of Harris County,
Texas, under that Court’s Cause No. 2010-11491 and styled J. M. Arpad Lamell v.
OneWest Bank, FSB (“OneWest”).
3. Lamell submitted his Appellant’s Brief on October 21, 2014.
4. OneWest submitted its Appellee’s Brief on November 20, 2014.
5. Lamell filed a Motion for Leave to Supplement on December 29, 2014,
attaching thereto his Appellant’s Supplemental Brief.
6. This Court Granted Lamell’s Motion for Leave to Supplement on January 8,
2015.
Motion to Extend Time to File Appellant’s Reply Brief 2015-01-29 | 1 7. Appellant’s Reply Brief was due January 9, 2015. TEX. R. APP. P.
10.5(b)(1)(A). Lamell seeks an extension in the filing of his Appellant’s Reply
Brief of twenty (20) days to January 28, 2015, and the Court’s acceptance as timely
filed of Appellant’s Reply Brief attached herewith. TEX. R. APP. P. 10.5(b)(1)(B).
8. Lamell has previously sought one extension in the filing of his Appellant’s
Reply Brief by Motion dated December 9, 2014. This Court granted the Motion the
same day extending the deadline to January 9, 2015. TEX. R. APP. P. 10.5(b)(1)(D).
9. By this Court's subsequent Notice of December 18, 2014, this matter is now
set for submission on the written briefs and the record on Tuesday, February 24,
2015, before Chief Justice Frost, Justice Boyce, and Justice McCally.
Family Tragedy
10. As related in Lamell’s Affidavit (Exhibit “B”), his fiancee’s brother died
unexpectedly on December 18, just before Christmas. Coupled with the pressures
of what might otherwise have been a joyful and restorative holiday and family get-
together, the un-expected grief and trauma of his passing away were heightened
and extended. This made it much more difficult for Lamell to function at full
capability with his full attention. Simply put, he was simply not able to be as
productive as he might otherwise have been in meeting his January 9 deadline.
Motion to Extend Time to File Appellant’s Reply Brief 2015-01-29 | 2 Errors in the Clerk’s Record
11. In reviewing the Clerk’s Record, Lamell encountered errors in the
presentation of the document from the trial court record, Plaintiff’s Opposition to
Third Motion to Authorize Release of Bond to Defendant OneWest (“Opposition”).
served and filed January 31, 2014. This opposition was originally served on
OneWest’s Counsel in response to OneWest’s Third Motion to Authorize Release 1 of Bond to Defendant OneWest [CR-SUP:53-70] both via email and by hand 2 delivery and filed prior to the hearing on January 31, 2014.
12. The initial error in the 1st Supplemental Clerk’s Record (filed with this
Court on June 30, 2014) was the inclusion of only 2 of the 12 pages of Lamell’s
Opposition. This omission left out entirely the essential body of Lamell’s 3 Opposition [CR-SUP:71-2].
13. Seeking to correct this error in the 1st Supplemental Clerk’s Record, Lamell
1 Filed with the Court on June 30, 2014. The electronic copy of the record furnished by the Appellate Clerk to Lamell bears a filename of “CR SUP (01 of 01) FLD 063014.pdf.” Appellant has adopted a shorter-form naming convention in record references made throughout his Appellant’s Brief and in subsequent filings with the Court up to and including the instant motion to refer to specific pages in this particular record volume as follows: [CR-SUP:pg#-pg#] 2 This document is critical to Lamell’s Issue No 2 [Appellant’s Brief, p.14, 65-70]. Without this document, it might appear that Lamell had not opposed OneWest's “Third Motion to Authorize Release of Bond” at all. Therefore, the inclusion is essential to a just determination and could prove to be dispositive of the Court's decision as to Lamell’s Issue No. 2. 3 For a key to this record reference, see Footnote 1 on page 2 herein.
Motion to Extend Time to File Appellant’s Reply Brief 2015-01-29 | 3 furnished a complete copy of his Opposition from his files to the District Clerk to
assist in locating and identifying the original filing. However, this copy was
treated as if it were a new filing, stamped “Filed” as of September 10, 2014, and 4 included in the 3rd Supplemental Clerk’s Record [CR-SUPP:38-49]. The file
stamp, however, created the false impression that Lamell’s Opposition had been
filed more than 8 months AFTER the hearing and order subject to this appeal.
14. Lamell ultimately discovered that the omission from the Clerk’s Record
arose from an error in the underlying trial court record where only two of the
twelve pages of the original document had been imaged and the rest had been lost.
Lamell First Sought Correction by Stipulation
15. Recognizing that the problem related to a defect in the trial court record,
Lamell next sought to resolve the defect, pursuant to TEX. R. APP. P. 34.5(e), by
seeking a proposed stipulation from OneWest’s Counsel that the document shown 5 in the 3rd Supplemental Clerk’s Record at [CR-SUPP:38-49] and stamped with an
indicated “Filed” date of September 10, 2014 on its first page was IN FACT a true
4 Filed with the Court on September 22, 2014. The electronic copy of the record furnished by the Appellate Clerk to Lamell bears a filename of “CR SUPP (01 of 01) FLD 092214.pdf.” Appellant has adopted a shorter-form naming convention in record references made in Appellant’s Brief and in subsequent filings with the Court up to and including the Instant Motion to refer to specific pages in this particular record volume as follows: [CR-SUPP:pg#-pg#] 5 For a key to this record reference, see Footnote 4 on page 3 herein.
Motion to Extend Time to File Appellant’s Reply Brief 2015-01-29 | 4 and correct copy of what Lamell had served on OneWest and filed with the trial 6 court on January 31, 2014 (“Exhibit A – Proposed Stipulation” attached hereto).
16. Counsel for OneWest, however, refused to stipulate to the correction of the 7 record (“Exhibit B - Lamell Affidavit” attached hereto).
17. Lamell then prepared and filed his Motion to Re-establish Lost Filing - TEX.
R. APP. P. 34.5(e) (“Exhibit C – Motion to Re-establish Lost Filing,” attached
hereto) on October 7, 2014, and set this motion for hearing.8 Lamell sought the
earliest possible hearing date and the Court set the hearing date fo January 9, 2015.
18. At the January 9, 2015 hearing, Lamell appeared in person before Judge
Sandill and showed by evidence that the copy of his Opposition marked “Filed” on
September 10, 2014 and included in the 3rd Supplemental Clerk’s Record
6 For further reference, the Court is respectfully requested to take judicial notice of the website page of the Harris County District Clerk containing the case record and specific image numbers of the items identified in the trial court's Order to Re-establish Lost Filing, attached hereto as Exhibit "A." TEX. R. EVID. 201(d). http://www.hcdistrictclerk.com/edocs/public/CaseDetails.aspx?Get=evhVVW2JYmn Z479hKvyyorLSWfkbESsxQ7VI3hfWpyS7ae/OVodEnBULLHMHZSR0IXOi2AU z1EnG1uJcH4haGAyId9OmI65mgoSRbUuBtZc= (note: select “images” tab) Judicial notice may be taken at any stage of the proceeding. TEX. R. EVID. 201(f). 7 The required correction could have been amicably and efficiently resolved in October without intervention by the trial court. 8 Remarkably, despite indicating that it was unwilling to stipulate to the requested correction and opposed to Lamell's Motion to Re-establish Lost Filing, OneWest never filed any written opposition to this Motion, nor did it make any appearance at the January 9, 2015, hearing. The entire process of correction of the trial court record by motion and hearing was an unnecessary inconvenience for Lamell, the trial court and this Court.
Motion to Extend Time to File Appellant’s Reply Brief 2015-01-29 | 5 (September 22, 2014) at [CR-SUPP:38-49],9 was the same document presented to
the trial court on January 31, 2014. The trial court then granted Lamell's Motion
and signed its Order to Re-Establish Lost Filing thereby finally resolving the
matter (“Exhibit D – Order to Re-Establish Lost Filing,” attached). By 10 coincidence, this hearing was the very same day Appellant's Reply Brief was due.
19. Attached as “Exhibit B” is Lamell’s affidavit verifying facts in support of
this motion.
20. Contemporaneously with the filing of this motion, Lamell is submitting his
Appellant’s Reply Brief with the Clerk of this Court.
II. Argument and Authorities
21. The Court has the authority under TEX. R. APP. P. 38.6(d) and 10.5(b) to
extend the time for an appellant to file an appellant’s reply brief.
22. During the period preceding the January 9 due date for Appellant’s Reply
Brief, Lamell struggled with a family personal tragedy as well as the preparation of
a what should have been a wholly unnecessary motion and trial court appearance to
accomplish a non-controversial correction of the trial court record which ought to
9 For a key to this record reference, see Footnote 4 on page 3 herein. 10 This Court granted Lamell’s Motion for Leave to File Supplemental Brief the day before this hearing on January 8, 2015.
Motion to Extend Time to File Appellant’s Reply Brief 2015-01-29 | 6 have been resolved by stipulation.
23. During the nineteen day period since the trial court’s January 9, 2015, Order
to Re-establish Lost Filing, Lamell has awaited a response from OneWest Counsel
to his queries as to OneWest’s disposition towards this motion as well as whether it
desired to seek leave to further supplement with an agreed motion to request reset
of the remaining briefing deadlines.
No Prejudice to OneWest
24. As there is no provision in the Rules for a response from OneWest to
Appellant’s Reply Brief and the Court has denied oral argument, the requested
extension is not prejudicial to OneWest in any way.
25. Appellant’s Reply Brief contains within its Appendix copies of items which
are to be included in the forthcoming supplementation to correct the clerk’s record,
which should prove helpful to this Court.
26. Moreover, since this matter is set for submission on February 24, 2015, the
extension requested leaves the Court with almost 4 weeks before submission to
review and consider Appellant’s Reply Brief. Hopefully this will not inconvenience
the Court.
Motion to Extend Time to File Appellant’s Reply Brief 2015-01-29 | 7 Lamell Sought to Confer with Opposing Counsel
27. Shortly after the Friday, January 9, hearing, Lamell filed a request with the
District Clerk pursuant to TEX. R. APP. P. 34.5(c) to supplement the record with the
newly-issued order. This was done so that the record would be complete BEFORE
the scheduled submission date of the matter on February 24, 2015. Lamell also e-
served a copy of this request to OneWest’s Counsel and further emailed yet
another copy to him later on the same day.
28. Lamell has incorporated the trial court’s January 9, 2015 Order Re-
establishing Lost Filing as an Appendix to his Appellant’s Reply Brief. Lamell had
hoped to confer with Counsel in person at the hearing to discuss further
supplementation and an extension of the time to file his Appellant’s Reply Brief in
respect of the trial court's order. TEX. R. APP. P. 10.1(a)(5).
29. However, since Counsel did not appear at the hearing, Lamell subsequently
sought Counsel’s agreement or non-opposition to this motion via email. Lamell
emailed OneWest’s Counsel on January 9, 10, 11, 12, 14, 15 and on January 28.
30. Lamell is aware that Counsel is a respected attorney with an extremely busy
litigation and appellate practice. Lamell understands that Counsel cannot always
respond to emails in a timely way. While not desiring to rush opposing Counsel, in
an abundance of caution, Lamell is now filing this motion without having received
Motion to Extend Time to File Appellant’s Reply Brief 2015-01-29 | 8 a response as to whether OneWest will be opposed.
31. Denial of Lamell’s Motion, however, might in itself prove to be dispositive
of one of the issues Lamell raises on appeal. Appellate cases should be decided on
the merits rather than on correctable procedural technicalities. Motor Vehicle
Board of Tex. v. EPIADA, 1 S.W.3d 108, 111 (Tex. 1999); Silk v. Terrill, 898
S.W.2d 764, 766 (Tex. 1995); Crown Life Insurance Co. v. Estate of Gonzalez, 820
S.W.2d 121, 121-2 (Tex. 1991).
32. Lamell would show that this motion is not brought for the purposes of delay
but so that justice may be done.
Prayer
WHEREFORE, PREMISES CONSIDERED, Appellant J. M. Arpad Lamell
prays that this motion for extension be granted and that his Appellant’s Reply Brief
submitted contemporaneously be accepted as timely filed.
Respectfully submitted,
/s/ J. M. Arpad Lamell J M Arpad Lamell, pro se 5131 Glenmeadow Drive Houston, TX 77096 713 857 2483 lamell@alum.mit.edu
Motion to Extend Time to File Appellant’s Reply Brief 2015-01-29 | 9 CERTIFICATE OF CONFERENCE
TEX. R. APP. P. 10.1(5)
By my signature below, I certify that I have attempted to confer via multiple e-mails with Thomas Hanson, Esq., counsel for OneWest, to seek agreement to my motion. Since Mr. Hanson did not appear for the trial court's hearing on January 9, 2015, I did not have the opportunity to confer with him in person about an extension before or after the hearing as I had contemplated. Later in the day after the conclusion of the hearing, I prepared and submitted a request to the District Clerk’s office to supplement the record with a copy of the trial court’s “Order to Re-establish Lost Filing.” I e-served Mr. Hanson at the same time with a copy of my request to which a copy of the Order was attached. Also on the 9th, I sent Mr. Hanson a separate courtesy copy of my request to supplement the record, again containing the Court’s Order. I sent him a succession of further emails inquiring as to his disposition with respect to my request for an extension. I received no response. After sending him yet another email yesterday, I have still received no response. While I am still hopeful of a reply, as of the filing of this Motion, there has been no reply. Although Mr. Hanson has graciously accommodated some of my requests in the past, he has not always responded or agreed. I am therefore indicating that I have received no response to my inquiries.
/s/ J. M. Arpad Lamell J. M. Arpad Lamell, Pro Se 5131 Glenmeadow Drive Houston, TX 77096 713 857 2483 lamell@alum.mit.edu
Motion to Extend Time to File Appellant’s Reply Brief 2015-01-29 | 10 CERTIFICATE OF SERVICE I hereby certify that on January 29, 2015, a true and correct copy of the foregoing “Motion to Extend Time to File Appellant's Reply Brief" was sent by e- service/e-mail to Mr. Thomas Hanson, lead counsel for Appellee OneWest to the address as shown below.
/s/ J. M. Arpad Lamell
J M Arpad Lamell
Via: TexFile e-service and e-mail. To: Thomas M. Hanson DYKEMA Commercia Bank Tower 1717 Main Street, Ste. 4000 Dallas, TX 75201 (214) 462-6420 telephone (214) 462-6401 telecopier thanson@dykema.com www.dykema.com Counsel for Appellee OneWest Bank
Motion to Extend Time to File Appellant’s Reply Brief 2015-01-29 | 11 Exhibits
Exhibit “A” – Proposed Stipulation
Exhibit “B” – Lamell Affidavit
Exhibit “C” – Motion to Re-establish Lost Filing
Exhibit “D” – Order to Re-establish Lost Filing
Motion to Extend Time to File Appellant’s Reply Brief 2015-01-29 | 12 Affidavit of J. M. Arpad Lamell State of Texas § § County of Travis § Before me, the undersigned Notary of Public, on this day, personally appeared J. M. Arpad Lamell. Upon his oath, he stated as follows: My name is J M Arpad Lamell. I am over 21 years of age and have never been convicted of a felony or a crime of moral turpitude. I am the Movant in the "Motion to Extend Time to File Appellant's Reply Brief to which this affidavit is attached. My primary residence address is in Houston, Harris County, Texas. I am of sound mind and competent in all respects to make this affidavit. I know of my own personal knowledge that the facts set forth in this affidavit and in the Motion to which it is attached are true and correct. 1. Shortly before Christmas, on December 18, my fiancee's brother, Bruce Weber, died unexpectedly at his home in Portland Oregon. 2. His death was and continues to be a major shock for us and for my fiancee's family, particularly for her aging parents. Dealing with the immediate surprise and trauma, the logistics of last-minute distant travel arrangements during the holiday season, preparations for memorial services in Portland on December 28, the continuing demands of day-to-day living and Christmas/New Year's stresses, and the loss itself were simply more than we could handle without losing focus and falling behind in many ways. 3. Although I did manage to complete my request for leave to file my Supplemental Brief and to submit the Brief USQU (which the Court graciously Lamell Affidavit Page | 1 accepted), the past several weeks have been very challenging and difficult. 4. Apart from the grief and disruption that came with Bruce's passing, there also remained an ongoing and important issue from months before relating to the correction of the appellate record to include a correct copy of my opposition to One West's Third Motion to Authorize Release ofBond. 5. When the District Clerk prepared and filed the supplement that I had requested and that was suppposed to include my opposition, I discovered that only 2 of the 12 pages that were originally in the document had been included. In seeking correction of the Appellate record, I learned that the missing pages had somehow been lost by the Clerk's Office. 6. On September 29, 2014,1 emailed Counsel for One West Bank, Mr. Thomas Hanson, to determine whether One West might be agreeable to a stipulation to re- establish the lost filing without the necessity of a motion and trial court hearing. However, Mr. Hanson responded by email on October 1 and refused to agree to the stipulation. I was left with no choice but to follow through with filing my ''Motion to Re-establish Lost Filing''' and scheduling it for hearing. 7. The motion was set for hearing January 9, 2015, which was the earliest available date, given the Court's year-end calendar. Although One West refused to agree to the stipulation, it did not file any written opposition. Consequently, I thought and expected that Mr. Hanson intended to show up at the hearing to oppose the motion in person. 8. On January 9, 2015,1 appeared before the Court and argued the motion. To my surprise, Mr. Hanson did not make an appearance. The Court granted my motion and issued its "Order to Re-establish Lost Filing'' on the same day. Since Mr. Hanson hadn't attended, I did not have the opportunity I had hoped for to Lamell Affidavit Page | 2 discuss the outcome of the hearing and to explore whether OneWest desired to seek leave to file a supplemental brief of its own in response to the supplemental brief I had filed which had just been accepted by this Court the day before. 9. The issuance of the Trial Court's order to re-establish the lost filing necessitated my having to make a request to supplement the Clerk's Record so that this order and related documents would be available in the record. 10. Since I couldn't speak with Mr. Hanson at the hearing, I followed up with an email message that day advising him of the order that had just issued and of my January 9, 2015, request for further supplementation to correct the record. I further corresponded with him via seven email messages beginning January 10th to determine whether One West was opposed to an extension and/or whether it intended to seek leave to file a further supplemental brief with some corresponding proposed agreement as to the scheduling of remaining briefing. 11. We are now awaiting the District Clerk's filing of the further supplement to the Clerk's record. As yet, I have not heard from Mr. Hanson whether One West intends to seek leave to file a supplemental brief 12. In the last few weeks, we have been struggling to get back on track in our personal lives. We have made progress and are begirming to re-estabhsh a more regular schedule with better focus than had been possible earlier. 13. Since, as of the preparation of this affidavit, I have still had no response from Mr. Hanson to any of my recent communications, I am indicating in my Motion that I have received no response from him.
Lamell Affidavit Page 13 14. In that the delay in filing my Reply Brief was occasioned both by my sincere efforts to accommodate and be as considerate as possible to opposing counsel, as well as by real and unforeseen personal circumstances and difficulties beyond my control, I am hopefiil that the Court will see fit to grant me the extension I am requesting. 15. My Appellant's Reply Brief itself is being offered contemporaneously with my Motion so that the Court can be assured of no further delays in the filing of my Brief
Sworn and subscribed before me, the undersigned Notary Public, on this day pf January, 2015
Lamell Affidavit Page I 4 10/7/2014 5:45:46 PM Chris Daniel - District Clerk Harris County Envelope No. 2753336 By: Susan Brooks Filed: 10/7/2014 5:45:46 PM
CAUSE NO. 2010-11491
J. M . ARPAD L A M E L L § IN THE DISTRICT COURT OF § Plaintiff, § HARRIS COUNTY, TEXAS § V. § § ONEWEST BANK, FSB, a § FOREIGN CORPORATION § 127'' JUDICIAL DISTRICT § Defendant. §
MOTION TO RE-ESTABLISH LOST FILING T E X . R . APP. P. 34(e)
TO THE HONORABLE JUDGE OF SAID COURT:
Comes now. Plaintiff J. M . ARPAD L A M E L L ("Plaintiff), filing this, his Motion
to Re-establish Lost Filing - TEX.R.APP.P.34(e)' and states as follows:
Background
1. This Court held a hearing on January 31, 2014 on Defendant's "OneWest Bank
FSB's Third Motion to Authorize Release of Bond." ("Bond Motion").
2. Set for hearing on the same occasion were two other motions brought by Plaintiff:
his ""Motion to Modify Judgment" and his "Motion for New Trial."
' TEX.R.APP.P.34(e) Clerk's record lost or destroyed. I f a filing designated for inclusion in the clerk's record has been lost or destroyed, the parties may, by written stipulation, deliver a copy o f that item to the trial court clerk for inclusion in the clerk's record or a supplement. I f the parties cannot agree, the trial court must - on any party's motion or at the appellate court's request - determine what constitutes an accurate copy o f the missing item and order it to be included in the clerk's record or a supplement.
Motion to Re-establish Lost FilingTEX. R. APP. P. 34(e) 3. Just before the hearing, Plaintiff handed printed copies of his own two motions
and at the same time served his response to Defendant's Motion, "Plaintiffs Response in
Opposition to Third Motion to Authorize Release of Bond to Defendant OneWest" on the
Court Reporter and on Defendant's Counsel ("Response"; Exhibit 1). Plaintiffs response
comprised 12 pages including
Exhibit A: screenshots of two pages appearing on the Harris County Appraisal District Website entitled "Real Property Account Information " dated January 29, 2014, AND
Exhibit B : affidavit of J M . Arpad Lamell signed and notarized January 30, 2014
4. The item presently appearing in the record as "Plaintiff's Response in Opposition
to third Motion to Authorize Release of Bond to Defendant OneWest" and showing a
fihng date of January 31, 2014, Image no.59452889, is NOT a correct copy of Plaintiff s
Response as presented to the Court. The image is incomplete in that it contains only the 2
pages of Exhibit A and omits entirely the two pages of Exhibit B and the other 8 pages of
Plaintiffs 12-page Response. Though the fiill Response was given to the Court, the items
missing from the record as filed on January 31, 2014 appear to have been lost.
5. Upon discovering this omission, on September 10, 2014, Plaintiff resubmitted an
exact duplicate of his Response in hard-copy form to the Clerk's office for filing to
complete or replace the incomplete January 31^' record entry and for supplementation to
the Appellate Record for Plaintiffs Appeal No. 14-14-00175-CV.
6. Plaintiffs full Response as originally submitted in person to the Court, now
appears with a new filing date of September 10, 2014 on the website of the Harris County
District Clerk under the following images:
Motion to Re-establish Lost FilingTEX. R. APP. P. 34(e) Pg-2 Image No 62288269 - 8 pages titled: "Plaintiffs Response in Opposition to Third Motion to Authorize Release of Bond to Defendant OneWest" with Certificate of Service dated January 31, 2014
Image No 62288271 - 2 pages as Exhibit B titled: "Affidavit of J M Arpad Lamell" signed and notarized January 30. 2014
Image No 62288270 - 2 pages of website screenshots as Exhibit A titled: "Real Property Account Information " dated Januarv 29, 2014
4. The new filing date of September 10 now shown in the record for Plaintiffs
Response, does not correctly reflect when the Response was actually presented to the
Court and to opposing Counsel. It is inconsistent on its face with its January 3 1 "
Certificate of Service, the January 30* executed Exhibit B Affidavit, and the January 29"^
dated Exhibit A website screenshots.
Argument
5. References to the Court's having possession of Plaintiffs documents can be
found in the Reporter's Record of the hearing (Exhibit 2) as follows (underline emphasis
added):
9 MR. LAMELL: I have a response to that and 10 I have some - a few cases that I can give you. 11 THE COURT: Sure. {Exhibit 2 pg 4 lines 9-11)
12 OI
12 THE COURT: AIM h a v e - 13 MR. LAMELL: I have - vou have the - I 14 believe I've given it to Valerv. I have attached a new 15 one to this. 16 MR. HANSON: I think my proposed order for 17 denying a new t r i a l -
Motion to Re-establish Lost FilingTEX. R. A P P . P. 34(e) Pg-3 18 THE COURT: Works? (Exhibit 2pgl7 lines 13-18)
1 are looking at and that's - and that's why -- and I 2 think vou have my response to their motion to release 3 the bond. I am not going to try to read it to you, but 4 I don't believe that there is - you know, as I read the 5 rules, there's nothing that supports it. (Exhibit 2 pg 23 lines 1-5)
6. The "Affidavit of J. M. Arpad Lamell" attached as Exhibit B to Plaintiffs
Response is shown as haying been signed and notarized on January 30, 2014. Plaintiffs
Response also includes as Exhibit A, 2 pages entitled "Real Property Account
Information" copied from the website of the Harris County Appraisal District. Date
markings appear in the upper left-hand comer show a date of January 29, 2014. Plaintiffs
Response contains a Certificate of Service dated January 31, 2014 with a mark indicating
hand-delivery. Based on the foregoing, it is reasonable to consider Plaintiffs Response as
being an accurate copy of the Response as presented on January 31, 2014.
7. Plaintiffs Response raises substantially the same argument(s) raised in
"Plaintiffs Amended Opposition to Second Motion to Authorize Release of Bond to
Defendant OneWest" (Exhibit 3) filed on October 23, 2013. Plaintiffs oral presentation
clearly tracks key arguments raised in his Response
19 However, the fundamental issue is that 20 neither defendant's answer to my original complaint - 21 and that's the context this was brought in ~ made no ~ 22 there has been no monev judgment at any point yet. 23 There is nothing to actuallv issue a bond for. If I 24 read Rule 24, the Texas ~ the appellate procedure, I 25 don't see anything there that supports - - (pg 20, lines 19-25)
again as below
Motion to Re-establish Lost Filing T E X . R . APP. P. 34(e) pg. 4 3 the bond. I am not going to try to read it to you, but 4 I don't believe that there is - vou know, as I read the 5 rules, there's nothing that supports it. We don't have 6 a monev judgment. Thev haven't been awarded anything.
(pg 23. lines 3-7)
The foregoing and the general tenor of the transcript serves as fiirther indication that
Plaintiffs Response was on hand and before the Court and the parties during the hearing.
The Parties Have Been Unable to Agree to a Stipulation
8. Pursuant to TEX.R.APP.P.34(e), Plaintiff corresponded via email (Exhibit 6) with
Defendant's Counsel on September 29 - October 1 asking him to agree to a Stipulation
(Exhibit 5) that Plaintiffs Response as delivered by Plaintiff to the Harris County District
Clerk and filed by the Clerk on September 10, 2014 can be included in the Appellate
Record as an true replacement for the lost record pages reflecting Plaintiffs complete
Response which he presented to the Court on January 31, 2014. Defendant's Counsel
declined to agree to the requested Stipulation, (see Affidavit Exhibit 4)
A Determination by the Court is Necessary
9. In accordance with TEX.R.APP.P.34(e), the Parties being unable to agree (see
Affidavit Exhibit 4), Plaintiff hereby seeks the Court's "determination as to what
constitutes an accurate copy of the missing item" and its order that it be "included in the
Clerk's record or a supplement."
SUMMARY
10. Plaintiffs Response, filed as a supplement to the Appellate Court Record on
September 22, 2014 and entered into the Trial Court record on September 10, 2014 as
Motion to Re-establish Lost FilingTEX. R. A P P . P. 34(e) image nos: 62288269 (8-page motion), 62288271 (2-page Exhibit B), 62288270 (2-page
Exhibit A), is identical to Plaintiffs Response hand-served with the Court on January 31,
2014 and attached as Exhibit 1 hereto.
11. Sufficient evidence exist to support a determination by the Trial Court that the
September 10* filed Plaintiffs Response is identical to Plaintiffs Response as presented
in person to the Court at the hearing held on January 31, 2014.
12. Accordingly, Plaintiff respectfully requests that this Court a) Determine that
Plaintiffs Response presently shown in the record as filed on September 10, 2014 is, in
fact, an accurate copy of the Plaintiffs Response presented on January 31, 2014 which
does not presently appear in the Court Record, and b) Order that Plaintiffs Response be
entered into the Court record with an effective filing date of January 31, 2014.
WHEREFORE, PREMISES CONSIDERED, Plaintiff Lamell prays that this
Court:
a) Determine that Plaintiffs Response presently shown in the record as filed on
September 10, 2014 and attached hereto as Exhibit 1 is, in fact, an accurate copy
of the Plaimiff s Response presented to the Court on January 31, 2014, and
b) Order that Plaintiffs Response attached hereto as Exhibit 1 be entered into the
Court record with an effective filing date of January 31, 2014.
Motion to Re-establish Lost FilingTEX. R. APP. P. 34(e) Plaintiff Lamell prays ftirther for any other relief to which he may show himself
justly entitled.
/s/ J. M . Arpad Lamell J. M . Arpad Lamell, Pro Se 5131 Glenmeadow Drive Houston, TX 77096 713 857 2483 lamell(S)alum.mit.edu
Motion to Re-establish Lost FilingTEX. R. APP. P. 34(e) Exhibits: Exhibit 1 - "Plaintiffs Response in Opposition to Third Motion to Authorize Release of Bond to Defendant OneWest" - 12 pages - as entered into the record complete with all pages on Sept. 10, 2014.
Exhibit 2 - Jan. 31, 2014 hearing transcript
Exhibit 3 - Oct. 23, 2013 - "Plaintiffs Amended Opposition to Second Motion to Authorize Release of Bond to Defendant OneWest"
Exhibit 4 - Affidavit of J M Arpad Lamell
Exhibit 5 - Sept. 29, 2014 draft of "Stipulation " - not agreed
Exhibit 6 - Sept. 29, 2014/ Oct.l - Plaintiffs email correspondence with Defendant's Counsel, Thomas Hanson
Motion to Re-establish Lost FilingTEX. R. APP. P. 34(e) Pg-8 CERTIFICATE OF CONFERENCE
I certify that I have conferred via email with Appellee's counsel, Mr. Thomas Hanson, regarding the execution of the stipulation herein presented. (TEX. R. APP. P. 10.1(a)(5). Mr. Hanson has refused to agree to Plaintiffs Stipulation, thereby necessitating the filing of this Motion.
/s/ J. M . Arpad Lamell J M Arpad Lamell
CERTIFICATE OF SERVICE
I hereby certify that on October 7, 2014, a true and correct copy of the foregoing "Motion to Re-establish Lost Filing TEX. R. APP. P. 34(e)" was sent by e-service/email, to parties of record as shown below.
Parties:
Via: XX e-service/email To: IndyMac Mortgage Services, Division of One West Bank c/o Thomas M . Hanson DYKEMA Commercia Bank Tower 1717 Main Street, Ste. 4000 Dallas, TX 75201 (214) 462-6420 telephone (214) 462-6401 telecopier thanson@dvkema.com www.dykema.com
Motion to Re-establish Lost FilingTEX. R. APP. P. 34(e) Affidavit of J . M. Arpad Lamell State of Texas § § County of Travis §
Before me, the undersigned Notary of Pubhc, on this day, personally appeared J M Arpad Lamell. Upon his oath, he stated as follows: 1. My name is J M Arpad Lamell, I am over 21 years of age and have never been convicted of a felony or a crime of moral turpitude. My primary residence address is in Houston, Harris County, Texas. 1 am of sound mind and competent in all respects to make this affidavit. I know of my own personal knowledge that the facts set forth in this affidavit are true and correct.
2. For a hearing set January 31, 2014 on One West's "Third Motion to Authorize Release of Bond to Defendant OneWest." 1 prepared a response which 1 titled: "Plaintiffs Opposition to Third Motion to Authorize Release of Bond to Defendant OneWest." (-Response") As Exhibit A to my Response, I made a PDF copy of 2 pages from the Harris County Appraisal District's website showing appraisal information for my home as displayeti on Jaiiuar>' 29, 2014. The January 29"^ dale appears in tlie upper left hand comer of each page of this exhibit. As Exhibit B to my Response, 1 prepared an Affidavit which 1 executed and had notarized on January 30''', 2014.
3. On the morning of January 31, 1 recall personally handing a copy of my Response, along with copies of my two motions that were scheduled to be heard at the same hearing ("Motionfor New Trial": 'Motion to ModJudgment") to the Court's Clerk just before the hearing began.
4. During the hearing, I reierred the Court to my Response and offered printed- out copies of selected cases cited to the Court and to Defendant's counsel for their more convenient reference.
5. Since then, the Appeal Record for my case has become compUcated insofar as it now involves 16 individual filesets. In the course of reviewing the Record that had been already been prepared and making the requests for supplementation that were required, 1 discovered that the actual 10-page body of my Response, along with its Exhibit B affidavit as given to the Court at the hearing were not showing in the Court Record. Apparently, they had been lost. To correct this, I delivered an exact copy of niy Response as I had given it to the Court on January 3V, to Mr, Duane Gilmore in the Clerk's office so that it could be added to the Court's Record and sent as a supplement to the Appeal Record for my Appeal.
6. On September 23, 1 obtained a copy of the supplement that had been filed with the Appeal Court. While it now showed all pages of my Response, 1 saw that it showed a filing date of September 10, 2014 instead of the date it had actually been presented to the Court on January 31, 2014.
7. I realized that updating the record to reflect the actual filing on January 31, 2014 for this particular document was not something that could be accomplished as a purely clerical matter and that it would require a stipulation between the parties and/or a detenuination by the Court.
8. 1 prepared a proposed stipulation to establish the feet that the recently-filed copy of my Response was in fact identical to what 1 had given the Court on January 31. I sent an email attaching my proposed stipulation to Defendant's counsel, Mr. Thomas Hanson on Monday morning, September 29* asking i f he would agree to the stipulation. 1 received no response. I emailed a reminder on October I enclosing a copy of my original email. He responded saying he would not agree to any further extensions. I took this to mean he would not agree to the Stipulation either. I have therefore prepared and am filing my "Motion to Re- establish Lost Filing" to which this affidavit is being attached.
9. The motion to which this Affidavit is attached was originally e-filed on October 4, 2014. It was returned to me "for further action from the filer" on October 6, 2014 with instructions to separate the lead document from its attachments and re-file, which I am doing this day with this new affidavit.
FURTHER AFFIMIT SAYETU NOT
Av_>
Sworn and subscribed before me, the undersigned Notary Public, on this day of October, 2014 Cause No. 2010-11491
.1. M . ARPAD LAMELL § IN THE DISTRICT COURT OF Plaintiff. § V. § HARRIS COUNTY, TEXAS § a O N E W E S T BANK, FSB, § 127* JUDICIAL DISTRICT FOREIGN CORPORATION, § Defemkmi. §
Stinulatfon Pursuant To T E X . R . APP. P. 34.5(e)
Pursuant to T E X . R, C I V . P. 34.5(e) the Parties hereto, J. M, Arpad L A M E L L (Plaintiff)
and ONEWEST BANK FSB (Defendant), hereby stipulate and agree as follows;
1) On Januarj' 31,2014 Plaintiff filed his ''Plaitniff's Re.spome in Opposition to
Third Motion to Authorize Release of Bond to Defendant OneWest," consisting of 12 pages
including two (2) exhibits: Exhibit " A " -• "Real Propert>' Account Information" (January 29,
2014) [2 pages] and E.\hibit " B " Affidavit o f J M. Arpad Lamell (January 30, 2014) [2 pages].
2) The Harris County District Clerk seems to have lost or misplaced the originally
filed document, which at the date of this stipulation has not yet been located. The parties desire
to avoid the necessity of an abatement of the appeal for a correction of the Clerk's Record by the
District Court by motion pursuant lo T t x . R. APP, P. 34.5(c).
3) To facilitate inclusion of the missing document in the Appellate Record, Plaintiff
furnished a true and exact copy of the Flamiiffs Response in Opposition to Third Motion lo
Authorize Release of Bond lo Defendant OneWest (filed Januars' 31, 2014) lo the Harris County
District Clerk, which copy is now file stamped September 10, 2014, and included in the Harris
County District Clerk's imaging sjstem as:
Image No 62288269 - "Plaintiffs Response in Opposition to Third Motion to Authorize Release of Bond to Defendani OneWest" [8 pages]
Stipiilaiion I'ursuani lo Tex. Jt App. P. i4(e): pg 1 rmage No 62288271 "AffiJavu of J M Arpad Lamell" [2 pages] Image No 62288270 - "Exhibit A " [2 pages]
4) The Harris County District Clerk has included this copy of "I'laintifp Response in
Opposition to Third Motion to Authorize Release of Bond lo Defendant OneWest" at pages 38-49
within a Supplemental Clerk's Record tiled on September 22, 2014, which copy is shown to be
file stamped September 10, 2014.
5) The parties agree and stipulate that the document identified above now shown to
be filed on September 10, 2014, and included in the Supplemental Clerk's Record is a true and
exact copy of PlaintitTs opposition originally filed on January 31, 2014.
6) The parties hereby request this Stipulation be entered into the Court Record to
clarify that the filing date of the document appearing at pages 38-49 was Januarv' 31, 2014.
ONEWEST Bank 5 1 J 1 uienmeadowDnve Thomas M . Hanson Houston, Texas 77096 DYKEMA 713/857 2483 Commercia Bank Tower lanicl! <7alum mit.edu 1717 Main Street. Ste. 4000 Dallas, TX 75201 ihanson'd d\ com
Date Date:
Slipiilaiian Pursuant lo Tex. R. App. P. 34le}: pg 2 Page 1 of 1
Arpad Lamell From: Arpad Lamell [lamell@aium mit.edu] Sent: Monday, September 29, 2014 10;08 AM To: 'Hanson, Thomas' Subject: Stipulation Request Attachments: Plaintiffs Opposition to OWB 3nd Mot to Re! Bond 1-31-2014 BINDER.pdf; 2014-07-28 Letter to Clerk of 14th COA Binder.pdf; CR SECOND SUP (01 OF 01) FLD 090814,pdf; CR SUPP (01 OF 01) FLD 092214.pdf; 2014-9-29 Stipulation,pdf Mr. Hanson;
First let me thank you for accommodating my requests for extensions in this case. I deeply appreciate the cooperation you've shown. Unfortunately, there is still a problem that needs to be fixed.
With your further cooperation, I believe it can be taken care of with minimum delay and effort.
Simply put, the problem is this: for some time, 10 of the 12 pages of my Response to One West's third motion to release the bond, which I handed you and the Court at the hearing back on January- 31, were lost or missing from the record. After multiple requests and extensions, a complete copy of my Response has finally been included in the record in a supplement just filed on the 22nd. However, the record is still not correct in that the newly-supplemented "Response" bears a file stamp of September 10, 2014 rather than January 31, 2014 when it was actually served.
This needs to be corrected so I can include references to it in my Brief
1 would like to ask you to agree to a stipulation I've prepared to accomplish this.
The proposed Stipulation is attached in PDF form, signed by me and dated. Assuming you agree, I would ask you to add your signature to it and return it to me as soon as possible. Please let me know by return email i f you are in agreement as soon as you can so I can let the Court of Appeals know we have conferred and that an agreed-upon Stipulation is being processed. For your information, 1 am attaching a PDF Binder copy of my Response submitted on January 31. You will note it contains my affidavit signed and notarized on January 30, together with an exhibit of pages from the Appraisal District's website dated January 29 and filed-stamped as received by the Clerk on Januar\ 31.
I am also attaching PDF files of the supplements filed September 8 [CR SECOND SUP (01 of 01) FLD 090814.pdl] where the Response is still missing and September 22 [CR SUPP (01 of 01) FLD 092214.pdf] where you will find the Response at pages 38-49 My request which ultimately yielded the September 8 supplement is also attached. I f you need any further information please let me know
Please let me know how you intend to proceed.
Best Regards,
10/4/2014 Thank you for your response The stipulation, however, was not directed towards an extension, merely a correction as to the date recorded for the record item at issue. Would that be possible?
From: Hanson, Thomas [mailto:THanson@dykema.com] Sent: Wednesday, October 01, 2014 4:18 PM To: Arpad Lamell Subject: RE: Stipulation Request
Mr. Lamell:
You have had multiple opportunities to correct the record (on issues that I see as having no relevance to your appeal), and have obtained multiple extensions of the briefing schedule in conjunction with same. I will not stipulate to any further delays in the adjudication of this appeal.
Best regards, Tom Hanson
214-^162-6420 Direct Comenca Bank Tower 214-462-6400 Main 1717 Main Street, Suite 4200 855-230-2439 Fax Dallas, Texas 75201 734-883-8667 Mobile wv/w dykema.com
From: Arpad Lamdl [maiito:lamell@alum.mit.edu] Sent: Wednesday, October 01, 2014 4:10 PM To: Hanson, Ttiomas Subject: Stipulation Request
Mr Hanson
Just as a reminder, I sent you the following email with attachments Monday morning. I have not yet heard back from you and am still awaiting your response. Please let me know.
From: Arpad Lamell rmailto:lamell@alum,mit.edu] Sent: Monday, September 29, 2014 10:08 AM To: 'Hanson, Thomas'
IO/4,/2014 Page 2 of2
Subject: Stipulation Request
Mr. Hanson;
First let me thank you for accommodating my requests for extensions in this case. I deeply appreciate the cooperation you've shown. Unfortunately, there is still a problem that needs to be fixed.
With your further cooperation, I believe it can be taken care of with minimum delay and effort.
Simply put, the problem is this; for some time, 10 of the 12 pages of my Response to One'West's third motion to release the bond, which I handed you and the Court at the hearing back on January 31, were lost or missing from the record. Af^er multiple requests and extensions, a complete copy of my Response has finally been included in the record in a supplement just filed on the 22nd. However, the record is still not correct in that the newly-supplemented "Response" bears a file stamp of September 10, 2014 rather than January 31, 2014 when it was actually served.
This needs to be corrected so 1 can include references to it in my Brief
! would like lo ask you to agree to a stipulation I've prepared to accomplish this.
The proposed Stipulation is attached in PDF form, signed by me and dated. Assuming you agree. \ would ask you to add your signature to it and return it to me as soon as possible. Please let me know by return email i f you are in agreement as soon as you can so I can let the Court of Appeals know we have conferred and that an agreed-upon Stipulation is being processed. For your information, 1 am attaching a PDF Binder copy of my Response submitted on January' 31. You will note it contains my afildavit signed and notarized on January 30, together with an exhibit of pages from the Appraisal District's website dated Januarj' 29 and filed-stamped as received by the Clerk on Januar>' 31.
1 am also attaching PDF files of the supplements filed September 8 [CR SECOND SUP (01 of 01) FLD 090814.pdn where the Response is stilt missmg and September 22 [CR SUPP (01 of 01) FLD 092214,pdf] where you will find the Response at pages 38-49. My reque.st which ultimately yielded the September 8 supplement is also attached. If you need any further information please let me know.
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10/4/2014 STATE O F TE. COUNTY O F I, Chris ctrtifythst this Is a true 'and or recorded in my inthiidtls. WItnasi Cause No. 2010-11491
J. M ARP AD LAMELL § IN THE DISTRICT COURT OF Plaintiff. § § HARRIS COUNTY, TEXAS v. § § l271h JUDICIAL DISTRICT ONEWEST BANK, FSB § Defendant. §
ORDER TO RE-ESTABLISH LOST FILING
Came before this Court for oral hearing on January 9, 2015, Plaintiffs Motion to Re-
establish Lost Filing. Plaintiff Arpad Lamell appeared in person. Defendant OneWest did not
appear nor did it file an opposition.
The Court having considered the Motion, the evidence presented, and the testimony and
arguments of Plaintiff, finds that Plaintiff's Motion should be GRANTED.
IT IS, THEREFORE, ORDERED that Plaintiffs Motion to Re-establish Lost Filing be
GRANTED and the Court declares that the copy of Plaintiffs Response in Opposition to Third
Motion to Authorize Release of Bond to Defendant OneWest presently imaged in the District
Clerk's Record as Image Nos: 62288269 (Motion), 62288211 (Affidavil of J.M Arpad Lame/I),
62288270 (Exhibit A) and bearing a filing date of September 10, 2014, is a true and correct copy
of the Opposition as it was presented to the Court, served on Defendant's Counsel, and filed on
January 31 , 2014.
SO ORDERED this r:: of January, 2015. /
FI LED Chris Daniel Dlatrlct Clerk
JAN 0 9 201