Rafael Montez Da Oca v. Eduardo Gutierrez

Opinion

ACCEPTED 03-14-00668-CV 5147224 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/4/2015 6:45:05 PM JEFFREY D. KYLE CLERK CASE NO. 03-14-00668-CV COURT OF APPEALS, THIRD DISTRICT OF TEXAS FILED IN ------------------------------------------------------------------AUSTIN,OF 3rd COURT APPEALS TEXAS RAFAEL MONTEZ DE OCA, Appellant 5/4/2015 6:45:05 PM JEFFREY D. KYLE V. Clerk

EDUARDO GUTIERREZ, Appellee ----------------------------------------------------------------- SUGGESTION OF BANKRUPTCY OF APPELLANT

TO THE HONORABLE JUDGES OF THIS COURT: The undersigned attorney hereby advises the Court that today he received the

attached notice of the filing today of a voluntary petition in bankruptcy by Appellant,

Rafael Montes de Oca, in Case No. 15-10587 in the United States Bankruptcy Court for

the Western District of Texas.

Respectfully Submitted,

pmorin@austin.rr.com

Page 1 CERTIFICATE OF SERVICE This is to certify that on May 4, 2015, a true and correct copy of the above and foregoing was served on counsel for Appellant set forth below as follows: Via email: raybassattorney@gmail.com Ray Bass 120 W. 8th St. Georgetown, TX 78626

Page 2 15-10587 Doc#1 Filed 05/04/15 Entered 05/04/15 10:18:55 Main Document Pg 1 of 8 B1 (Official Form 1) (04/13) United States Bankruptcy Court WESTERN DISTRICT OF TEXAS Voluntary Petition AUSTIN DIVISION Name of Debtor (if individual, enter Last, First, Middle): Name of Joint Debtor (Spouse) (Last, First, Middle): Montes de Oca, Rafael

All Other Names used by the Debtor in the last 8 years All Other Names used by the Joint Debtor in the last 8 years (include married, maiden, and trade names): (include married, maiden, and trade names):

Last four digits of Soc. Sec. or Individual-Taxpayer I.D. (ITIN)/Complete EIN (if more Last four digits of Soc. Sec. or Individual-Taxpayer I.D. (ITIN)/Complete EIN (if more than one, state all): xxx-xx-9086 than one, state all): Street Address of Debtor (No. and Street, City, and State): Street Address of Joint Debtor (No. and Street, City, and State): 3417 Vintage Drive Round Rock, TX ZIP CODE ZIP CODE 78664 County of Residence or of the Principal Place of Business: County of Residence or of the Principal Place of Business: Williamson Mailing Address of Debtor (if different from street address): Mailing Address of Joint Debtor (if different from street address):

ZIP CODE ZIP CODE

Location of Principal Assets of Business Debtor (if different from street address above): ZIP CODE

Type of Debtor Nature of Business Chapter of Bankruptcy Code Under Which (Form of Organization) (Check one box.) the Petition is Filed (Check one box.) (Check one box.) Health Care Business Chapter 7 Individual (includes Joint Debtors) Single Asset Real Estate as defined Chapter 9 Chapter 15 Petition for Recognition See Exhibit D on page 2 of this form. in 11 U.S.C. § 101(51B) of a Foreign Main Proceeding Chapter 11 Corporation (includes LLC and LLP) Railroad Chapter 12 Chapter 15 Petition for Recognition Stockbroker of a Foreign Nonmain Proceeding Partnership Chapter 13 Commodity Broker Other (If debtor is not one of the above entities, check this box and state type of entity below.) Clearing Bank Nature of Debts Other (Check one box.) Chapter 15 Debtors Tax-Exempt Entity Debts are primarily consumer Debts are primarily Country of debtor's center of main interests: (Check box, if applicable.) debts, defined in 11 U.S.C. business debts. Debtor is a tax-exempt organization § 101(8) as "incurred by an Each country in which a foreign proceeding by, regarding, or under title 26 of the United States individual primarily for a against debtor is pending: Code (the Internal Revenue Code). personal, family, or house- hold purpose." Filing Fee (Check one box.) Check one box: Chapter 11 Debtors Debtor is a small business debtor as defined by 11 U.S.C. § 101(51D). Full Filing Fee attached. Debtor is not a small business debtor as defined in 11 U.S.C. § 101(51D). Filing Fee to be paid in installments (applicable to individuals only). Must attach Check if: signed application for the court's consideration certifying that the debtor is Debtor's aggregate noncontigent liquidated debts (excluding debts owed to unable to pay fee except in installments. Rule 1006(b). See Official Form 3A. insiders or affiliates) are less than $2,490,925 (amount subject to adjustment on 4/01/16 and every three years thereafter). Filing Fee waiver requested (applicable to chapter 7 individuals only). Must Check all applicable boxes: attach signed application for the court's consideration. See Official Form 3B. A plan is being filed with this petition. Acceptances of the plan were solicited prepetition from one or more classes of creditors, in accordance with 11 U.S.C. § 1126(b). Statistical/Administrative Information THIS SPACE IS FOR COURT USE ONLY Debtor estimates that funds will be available for distribution to unsecured creditors. Debtor estimates that, after any exempt property is excluded and administrative expenses paid, there will be no funds available for distribution to unsecured creditors. Estimated Number of Creditors

1-49 50-99 100-199 200-999 1,000- 5,001- 10,001- 25,001- 50,001- Over 5,000 10,000 25,000 50,000 100,000 100,000 Estimated Assets

$0 to $50,001 to $100,001 to $500,001 $1,000,001 $10,000,001 $50,000,001 $100,000,001 $500,000,001 More than $50,000 $100,000 $500,000 to $1 million to $10 million to $50 million to $100 million to $500 million to $1 billion $1 billion Estimated Liabilities

$0 to $50,001 to $100,001 to $500,001 $1,000,001 $10,000,001 $50,000,001 $100,000,001 $500,000,001 More than $50,000 $100,000 $500,000 to $1 million to $10 million to $50 million to $100 million to $500 million to $1 billion $1 billion Computer software provided by LegalPRO Systems, Inc., San Antonio, Texas (210) 561-5300, Copyright 1996-2015 (Build 11.2.5.1, ID 3699651043) 15-10587 Doc#1 Filed 05/04/15 Entered 05/04/15 10:18:55 Main Document Pg 2 of 8 B1 (Official Form 1) (04/13) Page 2 Voluntary Petition Name of Debtor(s): Rafael Montes de Oca (This page must be completed and filed in every case.) All Prior Bankruptcy Cases Filed Within Last 8 Years (If more than two, attach additional sheet.) Location Where Filed: Case Number: Date Filed:

Location Where Filed: Case Number: Date Filed:

Pending Bankruptcy Case Filed by any Spouse, Partner or Affiliate of this Debtor (If more than one, attach additional sheet.) Name of Debtor: Case Number: Date Filed:

District: Relationship: Judge:

Exhibit A Exhibit B (To be completed if debtor is required to file periodic reports (e.g., forms 10K and (To be completed if debtor is an individual 10Q) with the Securities and Exchange Commission pursuant to Section 13 or 15(d) whose debts are primarily consumer debts.) of the Securities Exchange Act of 1934 and is requesting relief under chapter 11.) I, the attorney for the petitioner named in the foregoing petition, declare that I have informed the petitioner that [he or she] may proceed under chapter 7, 11, 12, or 13 of title 11, United States Code, and have explained the relief available under each Exhibit A is attached and made a part of this petition. such chapter. I further certify that I have delivered to the debtor the notice required by 11 U.S.C. § 342(b).

X /s/ Elizabeth Hickson 5/4/2015 Elizabeth Hickson Date Exhibit C Does the debtor own or have possession of any property that poses or is alleged to pose a threat of imminent and identifiable harm to public health or safety? Yes, and Exhibit C is attached and made a part of this petition. No.

Exhibit D (To be completed by every individual debtor. If a joint petition is filed, each spouse must complete and attach a separate Exhibit D.) Exhibit D, completed and signed by the debtor, is attached and made a part of this petition.

If this is a joint petition: Exhibit D, also completed and signed by the joint debtor, is attached and made a part of this petition.

Information Regarding the Debtor - Venue (Check any applicable box.) Debtor has been domiciled or has had a residence, principal place of business, or principal assets in this District for 180 days immediately preceding the date of this petition or for a longer part of such 180 days than in any other District.

There is a bankruptcy case concerning debtor's affiliate, general partner, or partnership pending in this District.

Debtor is a debtor in a foreign proceeding and has its principal place of business or principal assets in the United States in this District, or has no principal place of business or assets in the United States but is a defendant in an action or proceeding [in a federal or state court] in this District, or the interests of the parties will be served in regard to the relief sought in this District.

Certification by a Debtor Who Resides as a Tenant of Residential Property (Check all applicable boxes.) Landlord has a judgment against the debtor for possession of debtor's residence. (If box checked, complete the following.)

(Name of landlord that obtained judgment)

(Address of landlord) Debtor claims that under applicable nonbankruptcy law, there are circumstances under which the debtor would be permitted to cure the entire monetary default that gave rise to the judgment for possession, after the judgment for possession was entered, and

Debtor has included with this petition the deposit with the court of any rent that would become due during the 30-day period after the filing of the petition.

Debtor certifies that he/she has served the Landlord with this certification. (11 U.S.C. § 362(l)). Computer software provided by LegalPRO Systems, Inc., San Antonio, Texas (210) 561-5300, Copyright 1996-2015 (Build 11.2.5.1, ID 3699651043) 15-10587 Doc#1 Filed 05/04/15 Entered 05/04/15 10:18:55 Main Document Pg 3 of 8 B1 (Official Form 1) (04/13) Page 3 Voluntary Petition Name of Debtor(s): Rafael Montes de Oca (This page must be completed and filed in every case) Signatures Signature(s) of Debtor(s) (Individual/Joint) Signature of a Foreign Representative I declare under penalty of perjury that the information provided in this petition is I declare under penalty of perjury that the information provided in this petition is true true and correct. and correct, that I am the foreign representative of a debtor in a foreign proceeding, [If petitioner is an individual whose debts are primarily consumer debts and has and that I am authorized to file this petition. chosen to file under chapter 7] I am aware that I may proceed under chapter 7, 11, 12 or 13 of title 11, United States Code, understand the relief available under (Check only one box.) each such chapter, and choose to proceed under chapter 7. [If no attorney represents me and no bankruptcy petition preparer signs the I request relief in accordance with chapter 15 of title 11, United States Code. petition] I have obtained and read the notice required by 11 U.S.C. § 342(b). Certified copies of the documents required by 11 U.S.C. § 1515 are attached.

I request relief in accordance with the chapter of title 11, United States Code, Pursuant to 11 U.S.C. § 1511, I request relief in accordance with the chapter of specified in this petition. title 11 specified in this petition. A certified copy of the order granting recognition of the foreign main proceeding is attached.

X /s/ Rafael Montes de Oca Rafael Montes de Oca X (Signature of Foreign Representative) X (Printed Name of Foreign Representative) Telephone Number (If not represented by attorney) 5/4/2015 Date Date Signature of Attorney* Signature of Non-Attorney Bankruptcy Petition Preparer I declare under penalty of perjury that: (1) I am a bankruptcy petition preparer as X /s/ Elizabeth Hickson defined in 11 U.S.C. § 110; (2) I prepared this document for compensation and Elizabeth Hickson Bar No. 09586000 have provided the debtor with a copy of this document and the notices and information required under 11 U.S.C. §§ 110(b), 110(h), and 342(b); and, (3) if rules or guidelines have been promulgated pursuant to 11 U.S.C. § 110(h) setting a Hickson Law P.C. maximum fee for services chargeable by bankruptcy petition preparers, I have 4833 Spicewood Springs Rd given the debtor notice of the maximum amount before preparing any document for filing for a debtor or accepting any fee from the debtor, as required in that section. Official Form 19 is attached.

(512) 346-8597 Phone No.______________________ (512) 346-2047 Fax No.______________________ Printed Name and title, if any, of Bankruptcy Petition Preparer 5/4/2015 Date *In a case in which § 707(b)(4)(D) applies, this signature also constitutes a Social-Security number (If the bankruptcy petition preparer is not an individual, certification that the attorney has no knowledge after an inquiry that the state the Social-Security number of the officer, principal, responsible person or information in the schedules is incorrect. partner of the bankruptcy petition preparer.) (Required by 11 U.S.C. § 110.)

Signature of Debtor (Corporation/Partnership) I declare under penalty of perjury that the information provided in this petition is true and correct, and that I have been authorized to file this petition on behalf of the debtor. Address The debtor requests relief in accordance with the chapter of title 11, United States Code, specified in this petition. X Date X Signature of bankruptcy petiton preparer or officer, principal, responsible person, or partner whose Social-Security number is provided above. Signature of Authorized Individual Names and Social-Security numbers of all other individuals who prepared or assisted in preparing this document unless the bankruptcy petition preparer is not Printed Name of Authorized Individual an individual.

Title of Authorized Individual If more than one person prepared this document, attach additional sheets conforming to the appropriate official form for each person.

A bankruptcy petition preparer's failure to comply with the provisions of title 11 Date and the Federal Rules of Bankruptcy Procedure may result in fines or imprisonment or both. 11 U.S.C. § 110; 18 U.S.C. § 156.

Computer software provided by LegalPRO Systems, Inc., San Antonio, Texas (210) 561-5300, Copyright 1996-2015 (Build 11.2.5.1, ID 3699651043) 15-10587 Doc#1 Filed 05/04/15 Entered 05/04/15 10:18:55 Main Document Pg 4 of 8 B 1D (Official Form 1, Exhibit D) (12/09) UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION In re: Rafael Montes de Oca Case No. (if known)

Debtor(s)

EXHIBIT D - INDIVIDUAL DEBTOR'S STATEMENT OF COMPLIANCE WITH CREDIT COUNSELING REQUIREMENT

Warning: You must be able to check truthfully one of the five statements regarding credit counseling listed below. If you cannot do so, you are not eligible to file a bankruptcy case, and the court can dismiss any case you do file. If that happens, you will lose whatever filing fee you paid, and your creditors will be able to resume collection activities against you. If your case is dismissed and you file another bankruptcy case later, you may be required to pay a second filing fee and you may have to take extra steps to stop creditors' collection activities.

Every individual debtor must file this Exhibit D. If a joint petition is filed, each spouse must complete and file a separate Exhibit D. Check one of the five statements below and attach any documents as directed.

1. Within the 180 days before the filing of my bankruptcy case, I received a briefing from a credit counseling agency approved by the United States trustee or bankruptcy administrator that outlined the opportunities for available credit counseling and assisted me in performing a related budget analysis, and I have a certificate from the agency describing the services provided to me. Attach a copy of the certificate and a copy of any debt repayment plan developed through the agency.

2. Within the 180 days before the filing of my bankruptcy case, I received a briefing from a credit counseling agency approved by the United States trustee or bankruptcy administrator that outlined the opportunities for available credit couseling and assisted me in performing a related budget analysis, but I do not have a certificate from the agency describing the services provided to me. You must file a copy of a certificate from the agency describing the services provided to you and a copy of any debt repayment plan developed through the agency no later than 14 days after your bankruptcy case is filed.

3. I certify that I requested credit counseling services from an approved agency but was unable to obtain the services during the seven days from the time I made my request, and the following exigent circumstances merit a temporary waiver of the credit counseling requirement so I can file my bankruptcy case now. [Summarize exigent circumstances here.]

If your certification is satisfactory to the court, you must still obtain the credit counseling briefing within the first 30 days after you file your bankruptcy petition and promptly file a certificate from the agency that provided the counseling, together with a copy of any debt management plan developed through the agency. Failure to fulfill these requirements may result in dismissal of your case. Any extension of the 30-day deadline can be granted only for cause and is limited to a maximum of 15 days. Your case may also be dismissed if the court is not satisfied with your reasons for filing your bankruptcy case without first receiving a credit counseling briefing. 15-10587 Doc#1 Filed 05/04/15 Entered 05/04/15 10:18:55 Main Document Pg 5 of 8 B 1D (Official Form 1, Exhibit D) (12/09) UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION In re: Rafael Montes de Oca Case No. (if known)

Debtor(s)

EXHIBIT D - INDIVIDUAL DEBTOR'S STATEMENT OF COMPLIANCE WITH CREDIT COUNSELING REQUIREMENT Continuation Sheet No. 1

4. I am not required to receive a credit counseling briefing because of: [Check the applicable statement.] [Must be accompanied by a motion for determination by the court.]

Incapacity. (Defined in 11 U.S.C. § 109(h)(4) as impaired by reason of mental illness or mental deficiency so as to be incapable of realizing and making rational decisions with respect to financial responsibilites.);

Disability. (Defined in 11 U.S.C. § 109(h)(4) as physically impaired to the extent of being unable, after reasonable effort, to participate in a credit counseling briefing in person, by telephone, or through the Internet.);

Active military duty in a military combat zone.

5. The United States trustee or bankruptcy administrator has determined that the credit counseling requirement of 11 U.S.C. § 109(h) does not apply in this district.

I certify under penalty of perjury that the information provided above is true and correct.

Signature of Debtor: /s/ Rafael Montes de Oca Rafael Montes de Oca

Date: 5/4/2015 15-10587 Doc#1 Filed 05/04/15 Entered 05/04/15 10:18:55 Main Document Pg 6 of 8 UNITED STATES BANKRUPTCY COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION IN RE: Rafael Montes de Oca CASE NO

CHAPTER 13

VERIFICATION OF CREDITOR MATRIX

The above named Debtor hereby verifies that the attached list of creditors is true and correct to the best of his/her knowledge.

Date 5/4/2015 Signature /s/ Rafael Montes de Oca Rafael Montes de Oca

Date Signature 15-10587 Doc#1 Filed 05/04/15 Entered 05/04/15 10:18:55 Main Document Pg 7 of 8

Chase Home Finance 3415 Vision Drive Colombus, OH 43219

Citi Mortgage, Inc. PO Box 689196 Des Moines, IA 50368-9196

Eduardo Gutierrez c/o Paul T. Morin 503 West 14th St. Austin, TX 78701

Hickson Law, P.C. 4833 Spicewood Springs Suite 200 Austin, TX 78759

Hunter-Kelsey of Texas LLC 4131 Spicewood Springs Road Bldg J-1 Austin, TX 78759

Internal Revenue Service P.O. Box 7346 Philadelphia, PA 19101-7346

Ocwen Loan Servicing , LLC P.O. Box 24737 West Palm Beach, FL 33416-4737

U. S. Attorney/Civil Process Clerk 601 N. W. Loop 410, Suite 600 San Antonio, TX 78216-5597

U.S. Attorney General Main Justice Building, Room 5111 10th and Constitution Ave. NW Washington, D.C. 20530 15-10587 Doc#1 Filed 05/04/15 Entered 05/04/15 10:18:55 Main Document Pg 8 of 8

Wells Fargo MAC S4101-08D 100 West Washington 8th Floor Phoenix, AZ 85003