Luis A. Santiago v. the Bank of New York Mellon, as Successor Trustee to JPMorgan Chase Bank, as Trustee for Novastar Mortgage Funding Trust, Series 2004-2. Novastar Home Equity Loan Asset-Backed Certificates, Series 2004-2, and Ocwen Loan Servicing, LLC

• Court: Court of Appeals of Texas
• Decided: May 26, 2015
• Docket: 05-15-00664-CV
• Status: Published

Opinion

ACCEPTED 05-15-00664-CV 05-15-00664-CV FIFTH COURT OF APPEALS Appellate Docket Number: DALLAS, TEXAS 5/26/2015 9:56:23 AM LISA MATZ Appellate Case Style: Luis A. Santiago CLERK

The Bank of New York Mellon as successor trustee to JPMorgan Chase Bank as Tmstee for Novastar Vs. Mortgage Funding Tmst, Series 2004-2 Novastar Home Equity Loan Asset-Backed Certificates,... & Ocwen f - - - - - - - - - - - - rL

Companion Case No.: FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 5/26/2015 9:56:23 AM LISA MATZ Amended/corrected statement DOCKETING STATEMENT (Civil) Clerk

Appellate Court: 5th Court of Appeals (to be tiled in the court of appeals upon pertection of appeal under TRAP 32)

I. Appellant II. Appellant Attorney(s) IX] Person D Organization (choose one) D Lead Attorney First Name: First Name: Luis Middle Name: Middle Name: A. Last Nan1e:

Last Name: Santiago Suffix:

Suffix: Law Finn Name:

ProSe: ® Address l: Address 1: 5102 Spanish Oaks Address 2: Address 2: City: City: Frisco State: Texas Zip+4: State: Texas Zip+4 75034-4891 Telephone: Telephone: (469) 733-3133 exi. Fax: Fax: Email: Email: lu@slllltemps.com SBN:

III. Appellee IV. Appellee Attorney(s) 0 Person IX] Organization (choose one) IX! Lead Attorney Organization Name: The Bank of New York Mellon as successorg First Name: Mark First Nan1e: Middle Name: D.

Middle Name: !Last Name: Cronenwett Last Name: ISuffix:

Page 1 of9 Suffl.x: Law Finn Name: Mackie Wolf Zientz & Mann, P.C ProSe: 0 Address 1: 14160 N. Dallas Parkway Address 2: Suite 900 City: Dallas State: Texas Zip+4: 75254-4319 Telephone: (214) 635-2650 ext. Fax: (214) 635-2686 Email: mcronenwett@mwzmlaw .com SBN: 00787303

ill. Appellee IV. Appellee Attorney(s) 0 Person IXJOrganization (choose one) lXI Lead Attomey Organization Name: Ocwen Loan Servicing, LLC, First Name: Mark First Name: Middle Name: D. Middle Name: j Last Name: Cronenwett Last Name: ISuffix: Suffix: Law Firm Name: Mackie Wolf Zientz & Mann, P.C ProSe: 0 Address 1: 14160 N. Dallas Parkway

IAddress 2: Suite 900 City: Dallas State: Texas Zip+4: 75254-4319 Telephone: (214) 635-2650 ext. Fax: (214) 635-2686 Email: mcronenwett@mwzmlaw.com SBN: 00787303

Page2of9 V. Perfection Of Appeal And Jurisdiction

Nature of Case (Subject matter or type of case): Contract

Date order or judgment signed: May 5, 2015 Type of judgment: Interlocutoty Order Date notice of appeal filed in trial court: May 22, 2015 If mailed to the trial comt clerk, also give the date mailed: May 22, 2015

Interlocutory appeal of appealable order: lXI Yes D No If yes, please specifY statutoty or other basis on which interlocutory order is appealable (See TRAP 28): Tex. Civ. Prac. & Rem. Code Ann. Sec. 51.014(a)(4) Denial of a Temporary h1iunction Accelerated appeal (See TRAP 28): lSI Yes 0 No If yes, please specifY statutoty or other basis on which appeal is accelerated: TRAP 28. L(a) Accelerated Appeals, & Tex. Civ. Prac. & Rem. Code Ann. Sec. 51.014(a)(4) Denial of a Temporary Injunction

Parental Tennination or Cllild Protection? (See TRAP 28.4): DYes ~No

Pemlissive? (See TRAP 28.3): DYes lXI No If yes, please specifY statutory or other basis for such status:

Agreed? (See TRAP 28.2): DYes~ No If yes, please specifY statutory or other basis for such status:

Appeal should receive precedence, preference, or priority m1der statute or rule: lXI Yes 0 No If yes, please specifY statutoty or other basis for such status: TRAP 28.1.(a) Accelerated Appeals, & Tex. Civ. Prac. & Rem. Code Ann. Sec. 51.014(a)(4) Refusal of a Temporary Injunction Does this case involve anammmt under $100,000? 0 Yes IXJNo Judgment or order disposes of all parties and issues: 0 Yes ~No Appeal from final judgment: DYes ~No Does the appeal involve the constitutionality or the validity of a statute, rule. or ordina11ce? D Yes ~No

VI. Actions Extending Time To Perfect Appeal

Motion for New Trial: DYes IX] No If yes, date filed:

Motion to ModifY Judgment DYes ~No If yes, date filed: Request for Findings of Fact lXI Yes 0No If yes, date filed: May 6, 2015 and Conclusions of Law: Motion to Reinstate: []Yes lXI No If yes, date filed:

Motion under TRCP 306a: DYes lXI No If yes, date filed:

Other: DYes ~No If other, please specifY:

VIL Indigency Of Party: (Attach file-stamped copy of affida\'it, and extension motion iffiled.)

Affidavit filed in trial court: DYes D No If yes, date filed:

Contest filed in trial court: DYes lXI No If yes, date filed:

Date ruling on contest due:

Ruling on contest: D Sustained 0 Overmled Date of ruling:

Page 3 of9 VIII. Bankruptcy

Has any party to the court's judgment filed for protection in bankmptcy which might affect this appeal? DYes 1ZJ No If yes, please attach a copy of the petition.

Date bankruptcy flled: Bankruptcy Case Number:

lX. Trial Court And Record

Court: 296th Judicial District Court Clerk's Record: County: Collin Trial Court Clerk: I2?J District 0 County Trial Court Docket Number (Cause No.): 296-01232-2015 Was clerk's record requested? I2?J Yes D No If yes, date requested: May 22, 2015 Trial Judge (who tried or disposed of case): If no, date it w-ill be requested: First Name: John Were payment arrangements made with clerk? Middle Name: IZJYes 0No 0Indigent Last Name: Roach (Note: No request required under TRAP 34.5(a),(b)) Suffix: Jr. Address 1: Address 2: City: State: Texas Zip +4: Telephone: e:\.1.

Fax: Email:

Reporter's or Recorder's Record:

ls there a reporter's record? IZJYes D No Was reporter's record requested? 12?jYes 0No

Was there a reporter's record electronically recorded? DYes D No If yes. date requested: May 22, 2015

If no, date it \Vill be requested: Were payment arrangements made 1vith the court reporter/court recorder? 12?jYes 0 No 0Indigent

Page4 of 9 cgj Court Reporter D Court Recorder D Official D Substitute

First Name: Jan Middle Name: Last Name: Dugger Suffix: Address 1: 2100 Bloomdale Road Address 2: Strite 20012 City: McKinney State: Texas Zip+ 4: 75071 Telephone: 972-548-4407 ext. Fax: Email: jdugger@,co.collirttx.us

X. Supersedeas Bond Supersedeas bond filed: DYes cgj No If yes, date filed:

Will file: D Yes D No

XI. Extraordinary Relief

Will you request eA'traordinary relief (e.g. temporary or ancillmy relief) from this Court? cgj Yes 0 No If yes, briefly state the basis for your request: Enjoin Defendants from foreclosing and withdrawal of funds in conrt registzy.

XII. Alternative Dispute Resolution/Mediation (Complete section if filing in the lst, 2nd, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th, or 14th Court of Appeal) Should tlris appeal be referred to mediation? DYes cgj No

If no, please specifY: Has the case been tltrough an ADR procedure? DYes cgj No If yes, who was the mediator? What type of ADR procedme? At "vhat stage did the case go tltrough ADR? D Pre-Trial D Post-Trial D Other

If other, please specify:

Type of case? Give a brief description of the issue to be raised on appeaL the relief sought, and the applicable standard for review·, if knmvn (without prejudice to the right to raise additional issues or request additional relief):

How was the case disposed of? Other Smmnary of relief granted, including amount of money judgment and if any, dan1ages avvarded. Release of funds in the court Registry $57,500.00 If money judgment, what was the amount? Actual damages: Punitive (or similar) damages:

Page5of9 Attomey's fees (trial): Attomey's fees (appellate): Other: If other, please specify:

Will you challenge tlris Court's jurisdiction? DYes IZ] No Does judgment have language that one or more parties "take notlring"? Yes 1ZJ No Does judgment have a Mother Hubbard clause? DYes IZ] No

Other basis for finality? Detrial of a Temporary Injunction Rate the complexity of the case (use 1 for least and 5 for most complex): D 1 1ZJ 2 D 3 D 4 D 5 Please make my answer to tl1e preceding questions known to other parties in this case. DYes IZ] No Can the parties agree on an appellate mediator? DYes !XI No If yes, please give name, address, telephone, fax and email address: Name Address Telephone Fax Email

Languages other than English in vvlrich the mediator should be proficient: Name of person filing out mediation section of docketing statement:

XIII. Related Matters List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style.

Docket Nmnber: 0-13-00619-CV Trial Court: 296th District Court

Style: Luis A. Santiago and Linda A. Santiago

Vs. Novastar Mortgage, Inc., et al.

XITI. Related Matters List any pending or past related appeals before tlris or any other Texas appellate court by court, docket number, and style.

Docket Number: 05-15-00220-CV Trial Court: 296th District Court

Style: In Re Luis A. Santiago & Linda A. Santiago Relators

Vs.

Page6 of9 XIII. Related Matters List any pending or past related appeals before tllis or any other Texas appellate court by court, docket number, and style.

Docket Nmnber: 05-15-00342-CV Trial Court:

Style: Luis A Santiago and Linda A Santiago

Vs · The Bank ofNew York et al.

Page 7 of9 XIV. Pro Bono Program: (Complete section if filing in the 1st, 3rd, 5th, or 14th Courts of Appeals) The Courts of Appeals listed above, in conjunction with the State Bar of Texas Appellate Section Pro Bono Committee and local Bar Associations, are conducting a program to place a limited munber of civil appeals with appellate counsel who will represent the appellant in the appeal before this Court.

The Pro Bono Committee is solely responsible for screening and selecting the civil cases for inclusion in the Program based upon a nmnber of discretionary criteria, including the financial means of the appellant or appellee. If a case is selected by the Committee, and can be matched with appellate counsel, that counsel will take over representation of the appellant or appellee without charging legal fees. More infonnation regarding tllis program can be found in the Pro Bono Program Pamphlet available in paper fonn at the Clerk's Office or on the Internet at www.tex-app.org. Ifyom case is selected and matched with a volunteer lawyer, you will receive a letter from the Pro Bono Cmmnittee witllin tllirty (30) to forty-five (45) days after submitting tllis Docketing Statement. Note: there is no guarantee that if you submit your case for possible inclusion in tl1e Pro Bono Program the Pro Bono Cmmnittee will select your case and that pro bono colUlSel can be found to represent you. Accordingly, you should not forego seeking other counsel to represent you in tllis proceeding. By signing your name below, you are authorizing the Pro Bono committee to trdnsmit publicly available facts and infonnation about your case, including parties and background, through selected Internet sites and Listsen' to its pool of volunteer appellate attorneys. Do you want tllis case to be considered for inclusion in tl1e Pro Bono Program? DYes !ZI No

Do you authorize tl1e Pro Bono Committee to contact your trial counsel of record in this matter to answer questions the cmmnittee may have regarding the appeal? D Yes D No

Please note that any such conversations would be maintained as confidential by tl1e Pro Bono Conm1ittee and tl1e infornmtion used solely for tl1e purposes of considering tl1e case for inclusion in the Pro Bono Program.

If you lmve not previously filed an affidavit of Indigency and attached a file-stamped copy of that affidavit, does your income exceed 200% of tl1e U.S. DepartmentofHealthand Human Sen'ices Federal Poverty Guidelines? DYes D No

These g1lidelines can be found in the Pro Bono Program Pamphlet as well as on the internet at : . :l;;:; • ~1s. ,,c f,x; · .; ~ /. ·" :; .• •.. s. c.•

Are you willing to disclose your financial circumstances to the Pro Bono Conm1ittee? DYes D No If yes, please attach an Affidavit ofindigency completed and executed by tl1e appellant or appellee. Sample forn1s 1nay be found in the Clerk's Office or on the internet at •.' : < . Your participation in tl1e Pro Bono Programtnay be conditioned upon your execution of an affidavit under oath as to your fillancial circmnstances.

Give a brief description of tl1e issues to be raised on appeal, the relief sought, and the applicable standard of review, if knm.vn (witl10ut prejudice to tl1e right to mise additional issues or request additional relief; use a separate attachment, if necessary).

XV. Signature

Sigllature of colUlSel (or prose party) Date: May 22,2015

Printed Name: Luis A. Santiago State Bar No.: ProSe

Electronic Signature: I s I Luis A. Santiago (Optional)

Page8 of9 XVI. Certificate of Service

The undersigned counsel certifies that this docketing statement has been served on the following lead counsel for all parties to the trial court's order or judgment as follows on May 22, 2015

Signature of counsel (or pro se party) Electronic Signature: Is I Luis A. Santiago (Optional)

State Bar No.: ProSe Person Served Certificate of Service Requirements (TRAP 9.5(e)): A certificate of service must be signed by the person who made the service and must state: ( 1) the date and mam1er of service; (2) the nan1e and address of each person served, and (3) if the person served is a party's attorney, the name of the party represented by that attorney

Please enter the following for each person served:

Date Served: May 22,2015 Manner Served: Certified Mail

First Name: Marl<

Middle Name: D.

Last Name: Cronenwett Suffix: Law Firm Name: Mackie WolfZientz &Mamt, P.C.

Address 1: 14160 N. Dallas Parkway Address 2: Suite 900

City: Dallas State Texas Zip+4: 75254

Telephone: (214) 635-2650 ext. Fa-x: 214-635-2686 Etnail: mcronemvett(a),Inwzmlmv.corn

If Attorney, Representing Party's Name: The Bank of New York Mellon et la.

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