John W. Bowers v. Bank of America, N.A.

• Court: Court of Criminal Appeals of Texas
• Decided: October 13, 2015
• Docket: 06-15-00080-CV
• Status: Published

Opinion

ACCEPTED 06-15-00080-cv SIXTH COURT OF APPEALS TEXARKANA, TEXAS 10/13/2015 3:35:27 PM DEBBIE AUTREY CLERK

NO. 06-15-00080-CV

FILED IN IN THE COURT OF APPEALS 6th COURT OF APPEALS SIXTH JUDICIAL DISTRICT OF TEXAS TEXARKANA, TEXAS 10/13/2015 3:35:27 PM TEXARKANA, TEXAS DEBBIE AUTREY Clerk

JOHN W. BOWERS,

APPELLANT,

v.

BANK OF AMERICA, NA, AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP f/k/a COUNTRYWIDE HOME LOANS SERVICING, LP,

APPELLEE.

Appeal from the 345TH Judicial District Court Travis County, Texas Trial Court Case No. D-1-GN-12-002006 Hon. Stephen Yelenosky, Presiding

APPELLEE’S MOTION TO DISMISS FOR WANT OF JURISDICTION

TO THE HONORABLE COURT OF APPEALS:

COMES NOW, Appellee Bank of America, NA, as Successor by Merger to

BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP

(“Appellee”), and files this its Motion to Dismiss for Want of Jurisdiction, and

respectfully shows as follows:

APPELLEE’S MOTION TO DISMISS FOR WANT OF JURISDICTION PAGE 1 I.

1. Appellant John W. Bowers (“Appellant”) on September 14, 2015 filed

his Notice of Appeal in the Court of Appeals for the Third Judicial District, Austin,

Texas. See Docket, September 14, 2015. The appeal was transferred to this Court

on September 30, 2015. See Docket, September 30, 2015. The appeal is untimely

and must be dismissed for want of jurisdiction.

2. Final Judgment was entered on April 29, 2015 in the 345th Judicial

District Court of Travis County, Texas (the “Trial Court”). A true and correct

copy of the Judgment is attached hereto as Exhibit A.

3. Appellant filed a Motion for New Trial in the Trial Court on May 29,

2015. A true and correct copy of the Motion for New Trial is attached hereto as

Exhibit B. The Trial Court did not rule on the Motion for New Trial within 75

days of the date the Judgment was signed, and it was accordingly overruled as a

matter of law on July 13, 2015. TEX. R. CIV. P. 329b(c).

4. The Trial Court later entered an order expressly denying the Motion

for New Trial on August 12, 2015. A true and correct copy of the Order on

Plaintiff’s Motion for New Trial is attached hereto as Exhibit C.

5. The deadline for Appellant to file his Notice of Appeal was July 28,

2015, ninety days after the Judgment was signed by the Trial Court. TEX. R. APP.

P. 26.1(a). Appellant did not file his Notice of Appeal until September 14, 2015.

APPELLEE’S MOTION TO DISMISS FOR WANT OF JURISDICTION PAGE 2 6. Appellee therefore requests the Court dismiss this appeal for want of

jurisdiction. See TEX. R. APP. P. 26.1(a).

II.

WHEREFORE, PREMISES CONSIDERED, Appellee respectfully requests

the Court dismiss Appellant’s appeal for want of jurisdiction and provide Appellee

with all other and further relief to which it may be entitled.

Respectfully submitted,

By: /s/ Mark D. Cronenwett MARK D. CRONENWETT Texas Bar No. 00787303 mcronenwett@mwzmlaw.com MACKIE WOLF ZIENTZ & MANN, PC 14160 N. Dallas Parkway, Suite 900 Dallas, Texas 75254 Telephone: (214) 635-2670 Facsimile: (214) 635-2686 (Fax)

ATTORNEYS FOR APPELLEE BANK OF AMERICA, NA, AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP f/k/a COUNTRYWIDE HOME LOANS SERVICING, LP

CERTIFICATE OF SERVICE The undersigned certifies that on the 13th day of October, 2015, a true and correct copy of the foregoing document was delivered to the following counsel of record in the manner described:

Via Regular Mail and CMRRR: Robert S. Koelsch PO BOX 4790 Lago Vista, TX 78645-0008

APPELLEE’S MOTION TO DISMISS FOR WANT OF JURISDICTION PAGE 3 /s/ Mark D. Cronenwett MARK D. CRONENWETT

APPELLEE’S MOTION TO DISMISS FOR WANT OF JURISDICTION PAGE 4