Wells Fargo Bank, N.A., as Trustee for Securitized Asset Backed Receivables L.L.C. 2005-FR4 Mortgage Pass-Through Certificates Series 2005-FR4 v. Kingman Holdings, L.L.C., as Trustee of the Manderly Place 8118 Land Trust
04-15-00126-CV
| Tex. App. | May 20, 2015
Case Information

*1

No. 04-15-00126-CV

WELLS FARGO BANK, N.A., as Trustee for Securitized Asset Backed Receivables L.L.C. 2005-FR4 Mortgage Pass-Through Certificates Series 2005-FR4,

Appellant, v.

KINGMAN HOLDINGS, L.L.C., as Trustee of the Manderly Place 8118 Land Trust,

Appellee. Appeal from the 73rd Judicial District Court Bexar County, Texas Cause Number 2014-CI-17188

APPELLANT'S UNOPPOSED MOTION TO DISMISS

TO THE HONORABLE COURT OF APPEALS:

Appellant Wells Fargo Bank, N.A., as Trustee for Securitized Asset Backed Receivables L.L.C. 2005-FR4 Mortgage Pass-Through Certificates Series 2005FR4 ("Appellant") respectfully moves the Court to dismiss the above-captioned appeal. Appellee does not oppose this motion.

  1. This is an appeal from a January 21, 2015 no-answer default judgment. On February 20, 2015, Appellant filed a motion for new trial with the

*2

trial court. However, the motion for new trial was inadvertently filed under the wrong cause number. Therefore, out of an abundance of caution, Appellant filed a notice of appeal in the trial court on March 6, 2015, and, concurrently with its notice of appeal, Appellant filed with this Court a motion to extend time to file notice of appeal. 2. On March 20, 2015, the Court denied as moot Appellant's motion to extend time to file its notice of appeal "because the motion for new trial was proper and timely filed, making the notice of appeal timely as well." 3. Thereafter, on April 1, 2015, the trial court granted Appellant's Motion for New Trial and entered an order reinstating the case. See Exhibit 1-A. 4. In light of the trial court's order granting a new trial, Appellant's appeal challenging the January 21, 2015 default judgment is moot. Accordingly, pursuant to Texas Rule of Appellate Procedure 42.1(a)(1), Appellant requests that the Court enter an order dismissing this appeal.

PRAYER

WHEREFORE, Appellant requests that the Court grant this motion and dismiss this appeal. Appellant prays for such other relief to which it may be entitled in law or in equity.

*3 Respectfully submitted, LOCKE LORD LLP

B. David L. Foster

State Bar No. 24031555 John W. Ellis State Bar No. 24078473 600 Congress Ave., Suite 2200 Austin, Texas 78701 (512) 305-4700 (512) 305-4800 (Facsimile) dfoster@lockelord.com jellis@lockelord.com Thomas G. Yoxall State Bar No. 00785304 2200 Ross Avenue, Suite 2200 Dallas, Texas 75201 (214) 740 − 8000 (214) 740-8800 (Facsimile) tyoxall@lockelord.com Attorneys for Appellant Wells Fargo Bank, N.A., as Trustee for Securitized Asset Backed Receivables L.L.C. 2005- FR4 Mortgage Pass-Through Certificates Series 2005-FR4

*4

CERTIFICATE OF CONFERENCE

I hereby certify that I conferred via email with counsel for Appellee, Justin Nichols, on May 20, 2015, regarding this motion, and counsel for Appellee confirmed that Appellee is unopposed to this motion.

CERTIFICATE OF SERVICE

I hereby certify that on the 20th day of May 2015, a true and correct copy of the foregoing Motion was served via e-service through efile.txcourts.gov on Appellee through counsel of record, listed below:

Justin P. Nichols Justin D. Niedens The Nichols Law Firm, P.L.L.C. 115 E. Travis Street, Suite 1740 San Antonio, Texas 78205 (210) 354-2300 Telephone (800) 761-5782 Facsimile justin@thenicholslawfirm.com Attorneys for Appellee

*5 Exhibit 1

*6

DECLARATION OF JOHN W. ElLIS

STATE OF TEXAS COUNTY OF TRAVIS

  1. My name is John W. Ellis. I am over twenty-one years of age and fully competent to give the testimony in this declaration, and I would so testify if called upon to do so in a court of law. I have personal knowledge of all facts stated herein, and they are all true and correct.
  2. I am an associate in the Litigation Department of Locke Lord LLP. I am one of the attorneys representing Wells Fargo Bank, N.A., as Trustee for Securitized Asset Backed Receivables L.L.C. 2005-FR4 Mortgage Pass-Through Certificates Series 2005-FR4 ("Wells Fargo") in the case numbered 2014-CI-17188 and styled Kingman Holdings, L.L.C., as Trustee of the Manderly Place 8118 Land Trust v. Wells Fargo Bank, N.A., as Trustee for Securitized Asset Backed Receivables, L.L.C. 2005-FR4 Mortgage Pass-Through Certificates Series 2005FR4, and Fremont Reorganizing Corporation f/k/a Fremont Investment &; Loan (the "Trial Court Case").
  3. I have reviewed the document attached to this Declaration as Exhibit 1-A. The document attached to this Declaration as Exhibit 1-A is a true and correct copy of the Order Granting Motion for New Trial signed and entered in the Trial Court Case on April 1, 2015.

*7 My name is John W. Ellis, my date of birth is December 2, 1983, and my address is Locke Lord LLP, 600 Congress Avenue, Suite 2200, Austin, Texas 78701, U.S.A. I declare under penalty of perjury that the foregoing is true and correct.

Executed in Travis County, State of Texas, on the 20th day of May, 2015.

*8 Exhibit 1-A

*9

CAUSE NO. 2014-CI-17188

ORDER GRANTING MOTION FOR NEW TRIAL

On this day, came on for hearing the Motion for New Trial filed by Defendant Wells Fargo Bank, N.A., as Trustee for Securitized Asset Backed Receivables L.L.C. 2005-FR4 Mortgage Pass-Through Certificates Series 2005-FR4 ("Wells Fargo"). Upon reviewing the Motion for New Trial, any response thereto, arguments of counsel, the evidence presented, and all other matters before the Court, the Court is of the opinion that the Motion for New Trial is meritorious and should be granted.

The Court hereby GRANTS the Motion for New Trial and orders that the Court's Final Default Judgment signed in this Lawsuit on January 21, 2015 is VACATED AND SET ASIDE.

The Court further orders that the Clerk of the Court REINSTATE this Lawsuit to the Court's docket for further proceedings and trial.

Signed this day of April, 2015.