*0 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 6/29/2015 11:32:16 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 14-13-00931-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 6/29/2015 11:32:16 PM CHRISTOPHER PRINE CLERK IN THE FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS

ALBERT MORRIS, ET. AL. §

Appellants, §

§ vs. § CASE NO.: 14-13-00931-CV

§ TRIAL COURT:12-DCV-197669 SAND CANYON, F/K/A §

OPTION ONE, ET. AL. §

Appellees. §

APPELLANTS’ MOTION FOR REHEARING : TO THE HON. COURT

THIS MOTION PRAYS FOR RE-HEARING, A RE-SUBMISSION OF This Case for Court’s review; this, because the opinion rendered on May 14 th

2015 affirming the trial court’s decision, was in error.

In Lowe v. Lowe , Cause number 14-96-01329-CV, (14 Court of Appeals – June 18 1998) a case similar to this instant case, this Court ruled that the case

law of Craddock v. Sunshine Bus Lines, Inc. , 133 S.W.2d 124, 126 (Tex. 1939) did

apply, and that case was remanded for new trial. As the circumstance of Lowe is

similar to this case, the Court should have equally found that Craddock applies in this case, as the Court found in Lowe .

Appellant Albert Morris showed in the Brief that his failure to appear for the summary judgment motion hearing, was not intentional or result of

conscious indifference, but was due to accident or mistake; this being the first

prong in Craddock . At that time, Albert Morris had series of surgeries in which

*2 he was physically incapacitated in a hospital bed, and could not have attended

the hearing at trial court. This fact was true and uncontroverted.

For merit, Appellants further showed that they have meritorious claim for a Bill of Review where an essential party was not party in the original suit;

this essential party was neither disclosed nor known to the Appellants at the time it (American Home Mortgage Service Inc.) took the short gun approach

of self help in conducting a March 3 rd 2009 foreclosure of their Home Equity

Loan without judicial consent. The attached document, shows that Wells Fargo

knew that the March 3 rd 2009 foreclosure was conducted unlawfully; hence, Wells Fargo attempt to “correct” the situation by foreclosing on same property

on October 4 2014 – see attached Notice of Foreclosure.

Contrary to the Court’s opinion on page 8 of the May 14 2015 Opinion, Appellants did not waive this issue of Indispensable party; this is

because this fact was part of the trial court’s record; and such record was fully furnished to this Court as part of the record on appeal. Also, failure of the

Court to review all matters before it, goes contrary to the basic law of trial de

novo in appeal of cases such as this where summary judgment was granted.

For the third prong of the Craddock rule, Appellants filed a motion for new trial when it would not cause delay of otherwise injure the prevailing party.

The matter between the litigants have gone on for some time, a continuance

*3 (or new trial) of the summary judgment motion hearing would not have made

any difference, or caused any delay.

In same Lowe v Lowe’s case, this Court in footnote 1 in it’s opinion, noted that “the party need not satisfy all three prongs when the party did not receive notice of the hearing or suit.” The Court further credited that view to a sister

Court in Bryant v. Gamblin , 829 S.W. 2d 228, 229 (Tex. App. – Eastland 1991, writ denied). Appellants did not receive notice of the trial court’s hearing.

PRAYER

Appellants Urges this honorable Court to vacate it’s May 14 2015 Opinion and Judgment, and Re-Hear this appeal for fairness and justice.

Respectfully submitted, /s/ Albert Morris By:___________________ Albert Morris P. O. Box 17026 Sugar Land, Texas 77496 713/931-8777; Fax: 832/217-2913 Appellants

CERTIFICATE OF SERVICE I certify that copy of this motion was served all parties this 29 day of

June 2015, via e-file.

/s/ Albert Morris _____________________ Albert Morris

*4 o ~ 9314 7100 1170 0777 5929 88 MACKIE WOLF ZmNI'Z & MANN, P.C. ATIORNEYS AT LAW

PHONE (214) 635-2650 FAX (214) 635-2686 PARKWAY OmCE Cmlm, Sum, 900 UNDN PLA7A 124 WE.'IT CAPITOL, Sur.m 1560 14160 NOR'J1t DALLAS PARKWAY LmLE RocK, ARKA1~AS 72201 DAlLAS, TEXAS 75254

• i>ulAsu 1UI!l'Ol\'D 'JtI DArlAS 0Pl'1CIl 14-005112-670 November 18, 2014

VIA CERTIFIED MAILIRRR AND REGULAR MAIL TILDA MORRIS

54 TIIE OVAL SUGAR LAND, TX 77479

Re: Property Address: 54 THE OVAL, SUGAR LAND, TX 77479

MWZ Case No.: 14-005112-670

3 Day Notice to Vacate Prior to Filing Unlawful Entry and Detainer - Residential PLEASE TAKE NOTICE: Pursuant to the tenns of the Deed of Trust that encumbered the above

referenced property a foreclosure sale was held on 1010412014. Our client, Wells Pargo B~ NA., as trustee for ACE Securities Cotp. Home Equity Loan Trust, Series 2004-0P1 Asset

Backed Pass-1hrough Certificates, Series 2004-0Pl, was the purchaser at the foreclosure sale

and based upon the Deed of Trust, you are hereby given this 3-Day Notice to Vacate. You must

completely vacate the leased premises by 11121/14. Texas Property Code §24.005(b) provides in part:

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. If you fail to vacate by the above deadline, we will, on behalf of our client, Wells Fargo Bank, NA., as trustee for ACE Securities Cotp. Home Equity Loan Trust, Series 2004-0P1 Asset

Backed Pass-Through Certificat~S, Series 2004-0Pl, file a Porable Detainer lawsuit against you.

IF YOU ARE AN ACTIVE DUTY MEMBER OF THE UNITED STATES ARMED

FORCES OR A DEPENDENT OF AN ACTIVE DlITY SERVICEMEMBER, YOU MAY

BE ENTITLED TO RIGHTS AS PROVIDED IN THE SERVICEMEMBERS CIVR. RELmF ACT. IN SUCH CASE, YOU OR YOUR ATI'ORNEY SHOULD CONTACT

TIllS LAW FIRM AND PROVIDE PROOF OF MILITARY SERVICE IMMEDIATELY

SO THAT THIS FIRM CAN DETERMINE IF YOU FALL UNDER TIlE PROTECTION OF THE ACT. PLEASE CONTACT DON JOHNSON OR BRIAN OMMART AT (214) 635-2650. STATE OF TEXAS

COUNTY OF FORT BEND Loan No. 714mU47 Notice to Vaalte - Page 1 of

*5 o o

TIllS NOTICE IS GIVEN PURSUANT TO APPLICABLE LAW AND IN NO WAY

IMPAIRS ANY OF THE O1HER REMEDIES OR RIGHTS OF 'IlIE OWNER~ EITHER

UNDER THE DEED OF TRUST OR UNDER APPLICABLE LAW. If you have any questions please call our offices at (214) 635-2650.

Issued on November 18, 2014.

Mackie Wolf Zientz & Mann, P.C.

STATE OF TEXAS COUNTY OF FORT BEND I ~e~eby certify this to be a true and correct copy of onglnal record now on fii~.:dJUsti~:eace Loan No.71433S1147 Precinct 4. Certifi this ay of Notice w Vaatte- Page 2 of 4 UKI/L ' . . "._ ~. ' 20.l.!2-. . -"'- ~~rk . ustice of the eace, Pct 4

OFFICIAL RECEIPT Justice of the Peace, Precinct 4 Receipt No. Payor 41-63259 MORRIS, ALBERT 0 54 THE OVAL ST Transaction Date SUGAR LAND, TX 77479 Judge 02/19/2015 Richard, Laura Description Amount Paid Wells Fargo Bank, NA, as trustee for ACE Securities Cotp. Home Equity Loan Trust. Series 2004-0P1 Asset Backed Pass-Through

Certificates, Series 2004-0P1 14-JEV41-08617 Wells Fargo Bank, NA, as trustee for ACE Securities Cotp. Home Equity Loan Trust, Series 2004-0P1 Asset Backed Pass Through Certificates, Series 2004-0P1 vs ALBERT MORRIS,Tilda Morris and All Occupants , Copy (Certified) 1 st Page 5.00 Copies - Certified 5.00 1,00 Copy (Certified) Additional Page 1.00 Copies - Certified 6.00 SUBTOTAL

Remaining Balance Due: $0.00

PAYMENTTOTALvP ____________ ~6~.O~O~ Cash Tendered Total Tendered Change ^[000] 6.00 6.00 <" 10:33 AM 02/19/2015 OFFICIAL RECEIPT Cashier zapatern Station JP4R04 Audit