Writ of Mandamus: Wright v. EMC, Fulbright & Jaworski, Swartzendruber, Constable Todd
Writ requesting the Texas Supreme Court vacate Court of Appeal's denial of right to file without paying costs. Judicial and public corruption, Bank of America, EMC Mortgage, Bear Stearns, mortgage fraud, theft of home, forgery, assignment fraud, notary fraud, false statements to obtain property, felony
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No. 09-1013 _________________________________ In the
Supreme Court of Texas
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In Re ROBERT JOHN WRIGHT
______________________________________________________________________________ Original Proceeding from the 401st Judicial District Court of Collin County, Texas ______________________________________________________________________________
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ON PETITION FOR WRIT OF MANDAMUS TO THE FIFTH DISCTRICT COURT OF APPEALS AT DALLAS
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Prepared by: Robert John Wright P.O. Box 797762 Dallas, Texas 75379 972-955-6735 [email protected]
IDENTITY OF PARTIES AND COUNSEL
PARTIES Relator: Robert John Wright
COUNSEL
Robert John Wright – Pro se P.O. Box 797762 Dallas, Texas 75379
Respondents: 401st District Court of Collin County Fifth District Court of Appeals at Dallas
Real Parties in Interest: EMC Mortgage Corporation Wm. Lance Lewis Quilling, Selander, Cummiskey & Lownds 2001 Bryan Street, Suite 1800 Dallas, Texas 75201
Fulbright & Jaworski L.L.P and Michael Swartzendruber
David N. Kitner Strasburger & Price, L.L.P. 901 Main Street, Suite 4400 Dallas, Texas 75202
Johnny Todd
Robert J. Davis Matthews, Stein, Shiels, Pearce, Knott, Eden & Davis, L.L.P. 8131 LBJ Freeway, Suite 700 Dallas, Texas 75251
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TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL....................................................................... INDEX OF AUTHORITIES……………………………………………………………….. STATEMENT OF THE CASE………………………………………………………...….. STATEMENT OF THE JURISDICTION……………………………………….………. ISSUES PRESENTED…………………………………………………………………….. A. Did Respondent clearly abuse its discretion by denying Relator’s right to a plenary appeal by its refusal to honor Relator as an indigent so that he may obtain a complete trial court record and exercise his remedy to a plenary appeal at no cost? ……............................................................................ B. Did Respondent clearly abuse its discretion by dismissing Relator’s appeal 12 days before the Notice of Appeal was due? ............................................ C. Did Respondent clearly abuse its discretion by assigning the appeal to Justice Murphy, when a material fact in the underlying case relates to a void ab initio judgment rendered by Judge Murphy?............................................ STATEMENT OF FACTS………………..……………………………………………..…. ARGUMENT………………………………..……………………………………………….. A. THE CAUSE OF RELATOR’S INDIGENCE MUST BE CONSIDERED …….. B. THE FICTITIOUS LOAN DOCUMENTS EMC CREATED…………………… PRAYER……………………………………………..………………………………............ VERIFICATION…….…………………………………………………………….……….. CERTIFICATE OF SERVICE…………………..………………………………………… APPENDIX………………………………………………………………………separate ii iv v v v
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9 1 3 5 14 15 16 16
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INDEX OF AUTHORITIES Abor v. Black, 695 S.W.2d 564 (Tex. 1985)………………………………………………...... Adkins v. E. I. DuPont de Nemours & Co., 335 U. S. 331, 342-343 (1948)…………………. Arevalo, 983 S.W.2d at 804…………………………………………………………………... Copeland v. Ayers, 138 S.W.3d 652, 654 (Tex. App.-Dallas 2004)………………………….. Coppedge v. United States, 369 U. S. 438, 447 (1962)………………………………………. Cronen v. Smith, 812 S.W.2d 69, 70…………………………………………………….……. Federal Trade Commission v. EMC et al (E.Dist. of Texas, Civil No. 4:08-cv-338)…...…….. Fourth, Fifth and Fourteenth Amendments…………………………………………………… Fulbright letter………………………………………….……………………..……………… H. R. Rep. No. 1079, 52d Cong., 1st Sess., 1 (1892)……………………………..………….. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)…………..………… Jones v. Stayman, 747 S.W.2d 369, 370 (Tex. 1987)…………….………….………………. Klugh v. U.S., D.C.S.C., 610 F.Supp. 892, 901……………………………………………… Prudential Ins. Co. of America, 148 S.W.3d 124, 135-36 (Tex 2004)….……..…………...... Southwest Concrete Products, Tex, Sup. Ct., 2009…………………………………………... State of Texas v. Judge Priddy D-1-GV-08-002311……………………….…………………. Texas Government Code 22.221 (b)………………………….…………….….……………... Texas Property Code § 24.004……………………………………………….………………. Texas Penal Code 32.32……………………………………………………………………… Texas Supreme Court Advisory Meeting on Foreclosures………………..…….……………. Union Pac. Resources Co., 22 S.W.3d 338 (Tex. 1999)……………………….…………...... Walker v. Johnson; 312 U.S. 275 (1941)……………………………………………..……… Walker v. Packer, 827 S W.2d 833, 839 (Tex. 1982)………………………….……….……. Wright v. EMC Mortgage Corporation, Cause No. 02-8531-G……………………………… 3 3 5 4 4 4
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7 10 4 4 3 11 3 8 6 v 5 9 5 7 9 3 10
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STATEMENT OF THE CASE The underlying case involves a suit for damages related to the eviction of a holdover executed by the real parties in interest. The case originated in the 401st District Court of Collin County, Texas, Cause No, 4014116-2008, styled Robert John Wright v. EMC Mortgage, Fulbright & Jaworski L.L.P., Michael Swartzendruber Esq., Johnny Todd (collectively “Real Parties”). Real Parties in Interest were granted summary judgments, dismissal and sanctions. Relator attempted to appeal the lower court’s rulings to the Fifth District Court of Appeals at Dallas (“Respondent”). Relator complains Respondent is denying his right to appeal solely because he is indigent and refuse to honor Relator’s sworn affidavit of indigence. STATEMENT OF THE JURISDICTION This court has jurisdiction over this petition for writ of mandamus under Section 22.221 (b) of the Texas Government Code. ISSUES PRESENTED A. Did Respondent clearly abuse its discretion by denying Relator’s right to a plenary appeal by its refusal to honor Relator as an indigent so that he may obtain a complete trial court record and exercise his remedy to appeal at no cost? Did Respondent clearly abuse its discretion by dismissing Relator’s appeal 12 days before the Notice of Appeal was due? Did Respondent clearly abuse its discretion by assigning the appeal to Justice Murphy, when a material fact relates to a void ab initio judgment rendered by Judge Murphy?
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C.
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STATEMENT OF FACTS (Respondent’s refusal to allow Relator access to an appellate record limits Relator from presenting this court with a full appendix, citations to the record, transcripts, or copies of original filings and evidence.) This case involves the eviction of a holdover that the real parties in interest executed without legal standing and without a valid eviction order from a Justice Court in the county where the property is located, and in the process, feloniously influenced a public servant to also commit an unlawful act. (Apx. 1) Relator’s affidavit of indigence was initially granted, but a contest was sustained based on hearsay and without proffering any contradictory evidence or testimony. (Apx. 2) Real Parties filed for summary judgment claiming that they had “no burden to present evidence to prove the eviction was lawful”. (Apx. 3) The trial court also granted a dismissal and sanctions for Real Party Todd after witnessing Todd’s counsel present false testimony (with his client seated in the filled courtroom), that his client: “Was not present at that location during the eviction. He was at a hospital in Oklahoma with his wife.” (hearing transcript) In response, Relator entered into the record with his brief, a copy of a high-resolution photograph identifying Todd at Relator’s home during the unlawful eviction. (Apx. 4.) To understand its rulings and the court’s statement that it was holding Relator to the highest standards of a lawyer, Relator requested findings of fact and conclusions of law. (Apx.5) This extended the due date for his notice of appeal to September 28, 2009. Real parties filed a response directing the trial court to ignore the request, so it did. (trial record)
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As a precaution, after recording the history of extrinsic fraud by the real parties and Respondent courts, Relator prematurely filed his Notice of Appeal within 30 days of the July 1, 2009 final judgment.1 (Apx. 6 Docket sheet) On September 28, 2009, Relator timely filed his docketing statement, request for the record with an Affidavit of Inability to Pay Costs. The affidavit included the statement: “In the alternative and depending on the costs, Appellant requests this Court grant a six-month leave until Appellant can collect the funds available (sic) to pay for this appeal”. (Apx.7) Relator’s request for leave was also ignored. The Real Parties informally contested the affidavit by letter. (Apx. 8) On September 29, Relator received Respondent’s notice that the appeal was dismissed on September 16, 2009; twelve days before the docketing statement and request for the trial record were due. The dismissal cites Relator’s failure to respond to an August 11, 2009 letter directing him to pay a $175 filing fee. (Apx. 9) Relator did not receive a letter and the court docket does not indicate an August 11 letter. (Apx. 6) On September 29, 2009, Relator filed a Motion for Rehearing. (Apx. 10) On October 21, 2009, Respondent appellate court overruled the motion. (Apx.10) On October 30, 2009, Relator filed a supplemental affidavit of indigence requesting the court certify Relator as indigent. (Apx. 11) Affidavit was ignored. On November 6, 2009, Relator discovered Respondent Justice Murphy is the former Judge Murphy of the 14th District Court in Dallas, Texas, whose 2006 void ab initio judgment was usurped by the Real Parties as a Writ for Eviction to evict Relator from his lawfully-owned home located in a different county.
Relator wrote and mailed his Notice of Appeal while in California on case related matters, and did not have the documents needed to attach a pauper’s affidavit. All of his travel expenses were paid by the California party.
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ARGUMENT and AUTHORITIES An appellate court can provide relief by writ of mandamus if the relator establishes (1) a clear abuse of discretion by the respondent, and (2) the lack of an adequate remedy by appeal. E.g., In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135-36 (Tex 2004) (orig. proceeding), Walker v. Packer, 827 S W.2d 833, 839 (Tex. 1982) (orig. proceeding). Before an appellate court determines to correct an abuse of discretion of the trial court, the relator must discharge a heavy burden. The Supreme Court described that burden as follows: The relator must establish, under the circumstances of the case, that the facts and law permit the trial court to make but one decision. In order to find an abuse of discretion, the reviewing court must conclude that the facts and circumstances of the case extinguish any discretion in the matter. See Abor v. Black, 695 S.W.2d 564 (Tex. 1985) To meet that burden, it is critical for Relator to briefly address the long history of the litigation as intertwined infra. A. Respondent clearly abused its discretion by denying Relator’s right to a plenary appeal by its refusal to honor Relator as an indigent so that he may obtain a complete trial court record and exercise his remedy to appeal at no cost.
Indigency provisions … have long been liberally construed in favor of a right to appeal. Jones v. Stayman, 747 S.W.2d 369, 370 (Tex. 1987) Courts have routinely allowed litigants to proceed in forma pauperis. (see Walker v. Johnson; 312 U.S. 275 (1941). The federal in forma pauperis statute, enacted in 1892 and presently codified as 28 U. S. C. § 1915, is designed to ensure that indigent litigants have meaningful access to the federal courts. Adkins v. E. I. DuPont de Nemours & Co., 335 U. S. 331, 342-343 (1948). Congress' overarching goal in enacting the in forma pauperis statute: "to assure equality of consideration for all litigants.”
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Coppedge v. United States, 369 U. S. 438, 447 (1962); see also H. R. Rep. No. 1079, 52d Cong., 1st Sess., 1 (1892). Here, Respondent trial and appellate courts sustained the contest or denied the affidavit without contradictory evidence. If the trial court sustains the contest, we must determine whether the court abused its discretion. Cronen v. Smith, 812 S.W.2d 69, 70 (Tex. App.-Houston [1st Dist.] 1991, orig. proceeding). Relator provided evidence that he is receiving government entitlements in the form of food stamps. (See attached exhibit to Apx. 11) TRCP Rule 145(a) defines a party who is unable to afford costs “as a person who is “presently” receiving a governmental entitlement based on indigency or any other person who has no ability to pay costs”. Denying Relator to proceed in forma pauperis is a clear denial of due process, abuse of discretion, and creates a decision that is so arbitrary and unreasonable that it rises to a clear and prejudicial error of law. It effectively bars court access to everyone but the wealthy, and adds another impenetrable layer of protection between the victims and those Too Big to Fail, and allows them to be Too Big to be Held Accountable. A trial court abuses its discretion when its decision is so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. See Walker, 827 S.W.2d at 839; Copeland v. Ayers, 138 S.W.3d 652, 654 (Tex. App.-Dallas 2004, pet. denied); see also Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). For thirteen years the courts have consistently failed to follow rules, laws and principals, resulting in rulings that are unconscionable, arbitrary, unreasonable and clearly wrong. The trial court abuses its discretion when it acts without reference to any guiding rules or principles; the facts and law permit only one decision, which is the opposite of the trial court's decision; or the
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ruling is so arbitrary and [**5] unreasonable as to be clearly wrong. Arevalo, 983 S.W.2d at 804 (citing Cronen, 812 S.W.2d at 71). The law mandating proper eviction procedures is not discretionary and permits only one decision, which was the opposite of the trial court’s decision2. A. THE CAUSE OF RELATOR’S INDIGENCE MUST BE CONSIDERED Beginning in 1997, Relator was falsely accused of being in default on his mortgage at a time when he, aside from his home, was debt-free with a credit score of 798. Relator alleged he was not in default and provided incontrovertible evidence in support. The history of court records fail to show any evidence of a debt or the identity of a true party with rights to enforce. Relator recently discovered what was behind the fraud Real Parties have successfully concealed. This new evidence confirms he did not owe a debt on his home either. That issue is not before this court and will be litigated as a separate and independent action in the future. Relator’s indigence is the result of countless successful frauds upon various courts and extrinsic fraud on the part of Real Party EMC Mortgage and many others who, with court assistance, practiced subterfuge by filing false pleadings and false statements with numerous courts to gain an unconscionable advantage designed to run Relator out of money so they could cover up nearly two decades of the fraud connected to Relator’s “void” promissory note. Relator alleges this was done while the complicit courts turned a blind-eye to it. In partial support, is the November 2007 certified transcript of the Texas Supreme Court’s Advisory Meeting on Foreclosures. (Apx. 0) This transcript presents proof positive that the banks, courts, foreclosure-mill law firms, lawyers, title and insurance companies, lobbyists, Mortgage Bankers Association and others willingly assisted and wantonly participated in the criminal enterprise responsible for the ‘theft’ of homes and wealth from investors and
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Texas Property Code § 24.004
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homeowners that ultimately led to the foreclosure and financial meltdown, and who were again Bailed-Out at the taxpayer’s expense as they were during the 1980’s Savings & Loan Scandal. The transcript baldly asserts, as is the case here, that the mandated paperwork required to lawfully execute a foreclosure simply does not exist in 90% of the cases, stating: [“So finding a document that says, “I am the owner and holder, and I thereby grant to the servicer the right to foreclose in my name” is an impossibility in 90 percent of the cases.”] (transcript page 27, line 16) - Foreclosure mill attorney Michael Barrett. Note: Mr. Barrett is the same attorney who came after Relator in 1997 with false allegations that Relator was in default and Bank of America was the true owner and holder of Relator’s note. Relator recently discovered that Bank of America was never the owner or holder and therefore could not have sold Relator’s promissory note to EMC as both falsely maintained in their pleadings to all courts, including Respondent appellate court in 2001, and this court in 2002. The remedy for when, as Mr. Barrett confirmed “There really isn’t such a document” (Page 27, line 8), was revealed by Judge Bruce Priddy3 (See State of Texas v. Judge Priddy D-1GV-08-002311) when he added: “They just create one for the most part sometimes, and the servicer signs it themselves saying that it’s (sic) been transferred to whatever entity they name as applicant”. (page 28, line 10) First American added: “Well, the other problem -- Judge, this is Tim Redding. The other problem that I see -- and, Tommy, you and I talk about it regularly – that we have a bunch of servicers that are corporations or trusts attempting to foreclose on behalf of other trusts using a power of attorney, and I don't think that's really proper. I mean, we all kind of turn a blind eye to it, but I think that's an issue that's out there that somebody could use to potentially attack a foreclosure.” (page 33, line 5) This Texas Supreme Court transcript suggests why many of the participants engaged in mortgage fraud seek refuge in Texas. The transcript also brings credence to Relator’s belief that
In 2001, attorney Bruce Priddy declined to represent Relator citing the case was “too complex for my level of intelligence”.
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neither Bank of America nor EMC could have held him hostage to years of litigation unless the court(s) were willing participants in the Ponzi scheme that allowed EMC to continue its proven4 “illegal” practices, that include, but are in no way limited to, the outright theft of Relator’s home, equity, personal belongings and tendered payments on a debt he now learns didn’t even exist. The sharing of these ill-gotten gains brought the power and influences to make the recruitment of other wanton co-conspirators effortless - and guaranteed their illegal acts would continue unrestrained through a seemingly corrupted judiciary. The 1998 court had only one simple rule to follow. (Apx. 12) The court’s failure to follow this rule has so far subjected Relator to 13 years of groundless litigation and forced him to suffer severe irreparable harms and loss because no original “negotiable” instrument exists. As a result, taxpayers and the district and appellate courts were also subjected to meaningless procedures and trials. Union Pac. Resources Co., 22 S.W.3d 338 (Tex. 1999) It is unsettling that the People of Texas, repeatedly raped and pillaged by rogue BailedOut banks, sought “protection” from a judiciary that has been turning a “blind eye” to their misery and outright theft of their homes. Relator alleges that attacking Relator’s sworn affidavit of indigence is yet another desperate attempt to elude justice. Respondent courts’ repeated denial[s] of the affidavit strips Relator of all legal remedies and protections afforded under the Fourth, Fifth and Fourteenth Amendments. Article I, Section 19 of the Texas Constitution provides: No citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.
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In FTC v. EMC et al (E.Dist. of Texas, Civil No. 4:08-cv-338) “According to the FTC, the companies misrepresented the amounts borrowers owed on their mortgages, charged unauthorized fees, and used illegal and abusive collection practices”. (Apx.13) EMC tried to collect more than $200,000.00 in bogus fees from Relator.
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B.
Respondent clearly abused its discretion by dismissing Relator’s appeal twelve (12) days before the Notice of Appeal was due.
Relator has no remedy at law if he is once again unjustly barred access to appeal due to his fraud-induced indigence. Mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, to allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and to spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings. Id. at 136, (underline added). Relator believes this case is both exceptional and unconscionable. Now, we have Respondent trial court, in a blatant disregard for law, knowingly allowing the Real Parties to unlawfully evict holdovers without filing a forcible detainer suit in the JP Court in the county where the property is located as mandated by century-old Texas law5, and which also raises the question: How did the four constables get paid, and by whom, if the filing fees for the forcible eviction and detainer suit were not paid? Collin County records 1991-2008 show no listing for a foreclosure or eviction for Relator or his address. (Apx. 14) Real Parties have already made sure Relator cannot afford competent legal representation, discovery tools, court records and filing fees and he should not be prejudiced further. An appellate remedy is "adequate" when the benefits to mandamus review are outweighed by the detriments. Id. (In Re Southwest Concrete Products, Tex, Sup. Ct., 2009) (no cit.) Relator alleges Respondent’s dismissal, based on an August letter, is a repeat of past behaviors by both the respondent appellate court and the real parties in interest. To wit: a.) In the trial court, counsel for real party in interest EMC Mortgage certified in three certificates of service that they mailed its motions to Relator on May 27,
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Texas Property Code § 24.004
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2009. These three motions, sent certified mail return receipt requested, were not delivered to Relator until September 11, 2009 – more than three months after the fact – and effectively precluded Relator from responding to, or defending the motions, which ultimately resulted in the granting of a voidable judgment. (Apx.15) b.) In 2006, after nearly a decade of EMC and their schemers litigated Relator into poverty by making false statements to obtain property that EMC admitted under oath they do not own (a first degree felony under Texas Penal Code 32.32), forced Relator to file an Affidavit of Indigence. EMC contested the affidavit which was sustained even though EMC proffered no rebuttal or evidence. When Relator filed a motion for rehearing, the clerk stated the (lawyer) judge would not be able to read the motion for four (4) months. Relator’s Motion to Vacate the 14th District Court’s void judgment was also ignored. c.) Moreover in 2006, Respondent appellate court expressly acknowledged and placed Relator’s appeal on hold pending the final outcome of his 2006 indigence status. Real party Fulbright & Jaworski conveniently waited until 4-6 weeks had lapsed to notify Relator’s Washington D.C. pro bono attorney that the appeal had been dismissed due to Relator’s non-payment of the filing fee. Relator and his counsel did not receive any notice from the Respondent appellate court, yet that docket contained entries that two (2) notices were allegedly mailed. Relator had also signed up to receive V-Notices to instantly notify him of any changes to the appellate docket. He received nothing. This court should have already caught on that a major fraud has been going on inside and upon various court(s). The case history of the fraud against Relator dates back to the 1987 inception of Relator’s “non-negotiable” loan and exposes in detail just how deep and widespread the fraud really goes, along with a list of the many accomplices involved. This entire baseless litigation was best summarized in 2007 by the founder of a law firm. After hearing about the case, the firm flew their three top lawyers to Dallas by private jet to discuss the case. Within 30 minutes of looking at the evidence, the firm’s founder declined to take the case, stating: “There is so much corruption in this case by a bunch of crooked lawyers – including your own – and all of your judges.” C. The Respondent clearly abused its discretion by assigning the appeal to Justice Murphy when a material fact in the underlying case is a void ab initio judgment rendered by Judge Murphy.
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Relator avers the Respondent court has become prejudiced by Justice Murphy’s involvement in the related case. Relator alleges that in 2006, Judge Mary Murphy held a kangaroo court in the 14th District Court in Dallas, Texas, to allow EMC Mortgage to pursue a judgment when she knew or should have known by the evidence that the court did not have jurisdiction. Relator’s counsel brought it to his attention that Fulbright lawyer Jason Fagelman had an interest in the case, as his self-authored “Final Judgment” would make him a partner in the firm. Judge Murphy knew or should have known the disturbing series of events and tainted circumstances that brought EMC’s case to her court. Especially after Fulbright, in total disregard of the procedures of judicial assignments, had, in less than one year, bounced its merit-less lawsuit against Relator around the George Allen Courthouse from judges Ashby, to Sims6, to Stokes, to McFarlane; back to Sims, to Murphy, and then to an alleged judge, lawyer Kelton. Evidence of Fulbright’s power and influence surfaced earlier this year when the Wall Street Journal reprinted a letter written by Fulbright & Jaworski offering a $500,000.00 bribe to a person “if he could convince the Wall Street Journal to kill the story”. (See letter Apx. 16) What judge Murphy knew or should have known, as the case was hallway chatter according to substitute Judge McFarlane, is that in December 2004, Relator’s case, led by Relator’s counsel, Bobby Rubarts of Hughes & Luce, went to trial in the 134th District Court7, where EMC started the trial by announcing: “Your Honor, we made a mistake – EMC does not own Mr. Wright’s home”. This statement was completely ignored by the judge and Relator’s counsel. Relator didn’t understand the profoundness of that statement; that EMC was not the holder in due course with rights to enforce at the time it filed its numerous foreclosures; EMC
In 2005, Judge Sims ordered the Wright case “back to trial”, but later ruled against Wright in EMC’s case without a valid oath of office registered with the court or the Texas Secretary of State until June 2006. 7 Wright v. EMC Mortgage Corporation, Cause No. 02-8531-G
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and its predecessor had been fraudulently invoking the jurisdiction of numerous Texas courts for 8 years, forcing Relator to act on judgments that are void ab initio – a complete nullity. One which from its inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal force and effect whatever, and incapable of confirmation, ratification, or enforcement in any manner or to any degree. Judgment is a "void judgment" if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process. Klugh v. U.S., D.C.S.C., 610 F.Supp. 892, 901. After five days of waiting for Fulbright’s lawyers to mount some resemblance of a defense, Bobby Rubarts took over on redirect examination of EMC’s key witness and corporate representative, Annette Anderson, which recorded the following exchange: Rubarts: (Q) “Mr. Wright was never in default on his mortgage was he?” Anderson: (A) “No.” Rubarts: (Q) “As a matter of fact, Mr. Wright actually overpaid his escrow account didn't he?” Anderson: (A) “Yes.” Rubarts: (Q) “So, you saw Bank of America’s errors; but rather than correct their mistakes – you just decided to steal Mr. Wright’s home and equity didn’t you?” Anderson: (A) (after a lengthy and nervous pause) “Yes.” Within seconds of these admissions, Judge Ashby shut down the trial and forced Relator into a fourth mediation against his will, stating “this is costing far too much money and the other side has threatened to appeal my decision forever”. Judge Ashby made that statement knowing it was false and acted with full knowledge that EMC was there under false pretenses and that the court had no discretion to order Relator to act on void ab initio judgments. Judge Ashby later recused herself without written notice and Mr. Rubarts withdrew, claiming it was at the request of his firm’s ethics committee. This left Relator penniless, without representation, and too ill from the years of trying to defend against the baseless foreclosure attempts by entities who:
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1.) were never the holder in due course with rights to enforce. 2.) never had legal standing to invoke the jurisdiction of any court; 3.) confessed no default occurred to trigger a foreclosure. To be certain the above admissions did not spoil what had been a long-standing and incredibly profitable illegal cash cow for EMC and its now duly defunct parent company Bear Stearns Securities and all its collective accomplices, EMC’s admissions of guilt were expunged from the court transcript. Relator responded by filing an 18-page sworn affidavit with the Texas Court Reporters Commission, but no longer had the resources to travel to Austin to attend the hearings, and the matter was dismissed. With the admissions of guilt now wiped clean, Relator had to spend the last several years to find another way to conclusively reprove EMC’s admissions. Some of those recent findings are referenced further below. During the fourth mediation, Relator’s own lawyer repeatedly threatened him with the fear of economic loss and depletion of assets every time he tried to leave without acceding to EMC’s unconscionable and one-sided demands, and held under these threats for 12-14 hours. (Prior to admitting at trial that Relator was never in default and EMC did not own the loan, EMC was demanding Relator’s home - plus $202,000.00 in spurious fees to settle the case.) Operating with a greatly diminished mental capacity, too ill to read the sham documents, and knowing EMC was famous for breaching settlement agreements, Relator was forced to sign the demands before he could leave. Petitioner planned to take EMC’s demands to judge Ashby, but he was not given a copy. It was known by all parties that Relator had become destitute from the years of legal expenses and loss of income, so a $20,000.00 teaser check was used as an incentive to sign, and was to be executed upon signing. When Relator delivered EMC’s demand letter to their lawyer, he was told the check was not cashable as there were not enough funds in the IOLTA account.
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When Relator emailed his attorney to find out when the hearing to dismiss his case would be, Mr. Rubarts responded that he didn’t know what Relator was talking about, as there was not going to be a hearing. That was false. In March 2005, Relator was able to attend the third hearing on an Agreed Motion to Dismiss8. When Judge Sims asked Relator if he agreed to the terms of the settlement, Relator said no. Judge Sims later announced: “This settlement agreement will not go into effect until I sign it – and I am not going to. This case is going back to trial”. (It would be more than a year before Relator would be allowed to read EMC’s demands.) EMC responded to Judge Sims by literally walking across the hall to Judge Stokes court and sued Relator for breach of a contract with full knowledge they had issued Relator a hot check and were acting on void judgments. The next time Relator appeared in court was in June 2005 on EMC’s motion to compel Relator’s third deposition. After witnessing EMC testify that Relator was never in default and EMC did not own the loan, Fulbright & Jaworski’s lawyers stood before Judge McFarlane and falsely stated: “Your Honor, Mr. Wright has been living in his house for free for the last 8 years”. (Id. Hearing transcript) Relator was too ill to properly respond and Judge McFarlane told Relator to sit down and threatened him with jail time plus a $5,000 fine if he didn’t comply. That same month, a Washington D.C. lawyer heard about Wright’s case and offered to represent him at Fulbright’s video-taped deposition at no cost. During the deposition, Wright and his counsel were presented with copies of EMC’s demands, directed to specified page numbers and asked questions pertaining to its contents. Wright could not answer the questions because the pages of EMC’s “secret” demands were all blank, except for the page numbers. At the end of 10 hours of questioning, Fulbright & Jaworski had nothing to support their case.
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An Agreed Order of Dismissal was never signed.
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All these and many other ruses were used to wear down and bankrupt Relator so EMC could un-ring the bell and continue its illegal practices. But the evidence and truth remain.
B. THE FICTITIOUS LOAN DOCUMENTS EMC CREATED Just prior to the 2004 partial trial, Real Party in Interest Swartzendruber sent an email to Relator’s former trial counsel Bobby Rubarts, telling him that they had a copy of the “original” loan documents and anticipated Rubarts would come by to examine them. When Relator’s expert trial witness started examining the alleged copies and noticed the fraud, Rubarts quickly snatched them out of her hands. Relator has since recovered the loan documents EMC created and incorporates a few of the annotated pages in the appendix. (Apx. 17) This court will notice that what Real Party lawyer Swartzendruber claimed to be a copy of the “original” was a false statement. The documents are nothing more than a mishmash of fabricated documents that show, inter alia, that not one, but two (2) lost note affidavits (“LNA”) were created and back-dated 5 years before EMC falsely alleged they purchased the loan. (The mortgage industry and its lawyers frequently create LNA’s to recreate an alleged debt after the original toxic asset was intentionally destroyed, discharged by law, or allegedly lost.) The nonnegotiable instrument shows the loan was packaged into at least 3 different mortgage-backed securities without duly recorded assignments; a signature that does not match the name typed below it; four (4) different loan amounts; three (3) different loan numbers; loan papers filed in two separate counties, plus an alleged assignment to the Resolution Trust Corporation. According to these documents, it appears the loan EMC affixed its name to… was not even Relator’s loan.
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CONCLUSION It should be evident to this court that EMC et al had to run Relator out of money, get rid of his lawyers, take his home for free, create a fraudulent title, sell his home for more profit, train the courts to ignore the law and turn a blind eye to the evidence and truth to help cover up their years of egregious crimes against him. Relator has, in good faith and with clean hands, respectfully been trying to defend himself and his property in a judiciary that is fraught with fraud and where his adversaries’ tyranny has maintained an unconscionable advantage both inside and outside the courts. Relator prays he has provided this court with ample grounds to refer this case for a more deliberative investigation or at minimum, request further briefing. PRAYER Relator requests that this Court grant his petition for writ of mandamus and order the court of appeals to vacate its September 16, 2009 order. In the interest of justice and judicial integrity, it should be obvious that Relator cannot get a fair court in the DFW area. Merely remanding the case back to the same courts will only return Relator to forums he can prove - are rigged to fail him 100% of the time. Therefore Relator requests venue be changed to an adjoining northern county. In the alternative, Relator requests Justice Murphy be recused and an equitable justice be assigned. Relator further requests that this Court order the court of appeals to honor Relator’s affidavit and allow Relator to proceed in forma pauperis with a 60-day leave. Additionally, Relator requests this Court order the lower courts that all fees unjustly taxed against Relator be returned to him, and to award him any other relief to which he may be entitled. __/s/: Robert John Wright________ Robert John Wright P.O. Box 797762 Dallas, Texas 75379 / 972-955-6735
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VERIFICATION BEFORE ME, the undersigned notary public, on this day personally appeared Robert John Wright, who being duly sworn by me deposed and said:
1. "I am Robert John Wright, the Relator in this case. 2. I am over 21 years of age and am competent to make this affidavit. 3. I have read the Petition for Writ of Mandamus to which this verification is attached, and every factual statement contained therein is within my personal knowledge and is true and correct. 4. There is an appendix attached to the Petition for Writ of Mandamus. I have personal knowledge that the documents contained in the appendix are true and correct copies."
FURTHER AFFIANT SAYETH NOT. ____Original stamped and signed____ Robert John Wright – Relator - Pro se
CERTIFICATE OF SERVICE I certify that, on December 7, 2009, I served, with prior notice, a copy of this motion by email to the following: __/s/: Robert John Wright________ Robert John Wright Wm. Lance Lewis [email protected] Quilling, Selander, Cummiskey & Lownds 2001 Bryan Street, Suite 1800 Dallas, Texas 75201 Robert J. Davis [email protected] Matthews, Stein, Shiels, Pearce, Knott, Eden & Davis, L.L.P. 8131 LBJ Freeway, Suite 700 Dallas, Texas 75251 David N. Kitner [email protected], Strasburger & Price, L.L.P. 901 Main Street, Suite 4400 Dallas, Texas 75202
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Supreme Court of Texas
__________________________________
In Re ROBERT JOHN WRIGHT
______________________________________________________________________________ Original Proceeding from the 401st Judicial District Court of Collin County, Texas ______________________________________________________________________________
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ON PETITION FOR WRIT OF MANDAMUS TO THE FIFTH DISCTRICT COURT OF APPEALS AT DALLAS
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Prepared by: Robert John Wright P.O. Box 797762 Dallas, Texas 75379 972-955-6735 [email protected]
IDENTITY OF PARTIES AND COUNSEL
PARTIES Relator: Robert John Wright
COUNSEL
Robert John Wright – Pro se P.O. Box 797762 Dallas, Texas 75379
Respondents: 401st District Court of Collin County Fifth District Court of Appeals at Dallas
Real Parties in Interest: EMC Mortgage Corporation Wm. Lance Lewis Quilling, Selander, Cummiskey & Lownds 2001 Bryan Street, Suite 1800 Dallas, Texas 75201
Fulbright & Jaworski L.L.P and Michael Swartzendruber
David N. Kitner Strasburger & Price, L.L.P. 901 Main Street, Suite 4400 Dallas, Texas 75202
Johnny Todd
Robert J. Davis Matthews, Stein, Shiels, Pearce, Knott, Eden & Davis, L.L.P. 8131 LBJ Freeway, Suite 700 Dallas, Texas 75251
ii
TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL....................................................................... INDEX OF AUTHORITIES……………………………………………………………….. STATEMENT OF THE CASE………………………………………………………...….. STATEMENT OF THE JURISDICTION……………………………………….………. ISSUES PRESENTED…………………………………………………………………….. A. Did Respondent clearly abuse its discretion by denying Relator’s right to a plenary appeal by its refusal to honor Relator as an indigent so that he may obtain a complete trial court record and exercise his remedy to a plenary appeal at no cost? ……............................................................................ B. Did Respondent clearly abuse its discretion by dismissing Relator’s appeal 12 days before the Notice of Appeal was due? ............................................ C. Did Respondent clearly abuse its discretion by assigning the appeal to Justice Murphy, when a material fact in the underlying case relates to a void ab initio judgment rendered by Judge Murphy?............................................ STATEMENT OF FACTS………………..……………………………………………..…. ARGUMENT………………………………..……………………………………………….. A. THE CAUSE OF RELATOR’S INDIGENCE MUST BE CONSIDERED …….. B. THE FICTITIOUS LOAN DOCUMENTS EMC CREATED…………………… PRAYER……………………………………………..………………………………............ VERIFICATION…….…………………………………………………………….……….. CERTIFICATE OF SERVICE…………………..………………………………………… APPENDIX………………………………………………………………………separate ii iv v v v
3
8
9 1 3 5 14 15 16 16
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INDEX OF AUTHORITIES Abor v. Black, 695 S.W.2d 564 (Tex. 1985)………………………………………………...... Adkins v. E. I. DuPont de Nemours & Co., 335 U. S. 331, 342-343 (1948)…………………. Arevalo, 983 S.W.2d at 804…………………………………………………………………... Copeland v. Ayers, 138 S.W.3d 652, 654 (Tex. App.-Dallas 2004)………………………….. Coppedge v. United States, 369 U. S. 438, 447 (1962)………………………………………. Cronen v. Smith, 812 S.W.2d 69, 70…………………………………………………….……. Federal Trade Commission v. EMC et al (E.Dist. of Texas, Civil No. 4:08-cv-338)…...…….. Fourth, Fifth and Fourteenth Amendments…………………………………………………… Fulbright letter………………………………………….……………………..……………… H. R. Rep. No. 1079, 52d Cong., 1st Sess., 1 (1892)……………………………..………….. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)…………..………… Jones v. Stayman, 747 S.W.2d 369, 370 (Tex. 1987)…………….………….………………. Klugh v. U.S., D.C.S.C., 610 F.Supp. 892, 901……………………………………………… Prudential Ins. Co. of America, 148 S.W.3d 124, 135-36 (Tex 2004)….……..…………...... Southwest Concrete Products, Tex, Sup. Ct., 2009…………………………………………... State of Texas v. Judge Priddy D-1-GV-08-002311……………………….…………………. Texas Government Code 22.221 (b)………………………….…………….….……………... Texas Property Code § 24.004……………………………………………….………………. Texas Penal Code 32.32……………………………………………………………………… Texas Supreme Court Advisory Meeting on Foreclosures………………..…….……………. Union Pac. Resources Co., 22 S.W.3d 338 (Tex. 1999)……………………….…………...... Walker v. Johnson; 312 U.S. 275 (1941)……………………………………………..……… Walker v. Packer, 827 S W.2d 833, 839 (Tex. 1982)………………………….……….……. Wright v. EMC Mortgage Corporation, Cause No. 02-8531-G……………………………… 3 3 5 4 4 4
7
7 10 4 4 3 11 3 8 6 v 5 9 5 7 9 3 10
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STATEMENT OF THE CASE The underlying case involves a suit for damages related to the eviction of a holdover executed by the real parties in interest. The case originated in the 401st District Court of Collin County, Texas, Cause No, 4014116-2008, styled Robert John Wright v. EMC Mortgage, Fulbright & Jaworski L.L.P., Michael Swartzendruber Esq., Johnny Todd (collectively “Real Parties”). Real Parties in Interest were granted summary judgments, dismissal and sanctions. Relator attempted to appeal the lower court’s rulings to the Fifth District Court of Appeals at Dallas (“Respondent”). Relator complains Respondent is denying his right to appeal solely because he is indigent and refuse to honor Relator’s sworn affidavit of indigence. STATEMENT OF THE JURISDICTION This court has jurisdiction over this petition for writ of mandamus under Section 22.221 (b) of the Texas Government Code. ISSUES PRESENTED A. Did Respondent clearly abuse its discretion by denying Relator’s right to a plenary appeal by its refusal to honor Relator as an indigent so that he may obtain a complete trial court record and exercise his remedy to appeal at no cost? Did Respondent clearly abuse its discretion by dismissing Relator’s appeal 12 days before the Notice of Appeal was due? Did Respondent clearly abuse its discretion by assigning the appeal to Justice Murphy, when a material fact relates to a void ab initio judgment rendered by Judge Murphy?
B.
C.
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STATEMENT OF FACTS (Respondent’s refusal to allow Relator access to an appellate record limits Relator from presenting this court with a full appendix, citations to the record, transcripts, or copies of original filings and evidence.) This case involves the eviction of a holdover that the real parties in interest executed without legal standing and without a valid eviction order from a Justice Court in the county where the property is located, and in the process, feloniously influenced a public servant to also commit an unlawful act. (Apx. 1) Relator’s affidavit of indigence was initially granted, but a contest was sustained based on hearsay and without proffering any contradictory evidence or testimony. (Apx. 2) Real Parties filed for summary judgment claiming that they had “no burden to present evidence to prove the eviction was lawful”. (Apx. 3) The trial court also granted a dismissal and sanctions for Real Party Todd after witnessing Todd’s counsel present false testimony (with his client seated in the filled courtroom), that his client: “Was not present at that location during the eviction. He was at a hospital in Oklahoma with his wife.” (hearing transcript) In response, Relator entered into the record with his brief, a copy of a high-resolution photograph identifying Todd at Relator’s home during the unlawful eviction. (Apx. 4.) To understand its rulings and the court’s statement that it was holding Relator to the highest standards of a lawyer, Relator requested findings of fact and conclusions of law. (Apx.5) This extended the due date for his notice of appeal to September 28, 2009. Real parties filed a response directing the trial court to ignore the request, so it did. (trial record)
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As a precaution, after recording the history of extrinsic fraud by the real parties and Respondent courts, Relator prematurely filed his Notice of Appeal within 30 days of the July 1, 2009 final judgment.1 (Apx. 6 Docket sheet) On September 28, 2009, Relator timely filed his docketing statement, request for the record with an Affidavit of Inability to Pay Costs. The affidavit included the statement: “In the alternative and depending on the costs, Appellant requests this Court grant a six-month leave until Appellant can collect the funds available (sic) to pay for this appeal”. (Apx.7) Relator’s request for leave was also ignored. The Real Parties informally contested the affidavit by letter. (Apx. 8) On September 29, Relator received Respondent’s notice that the appeal was dismissed on September 16, 2009; twelve days before the docketing statement and request for the trial record were due. The dismissal cites Relator’s failure to respond to an August 11, 2009 letter directing him to pay a $175 filing fee. (Apx. 9) Relator did not receive a letter and the court docket does not indicate an August 11 letter. (Apx. 6) On September 29, 2009, Relator filed a Motion for Rehearing. (Apx. 10) On October 21, 2009, Respondent appellate court overruled the motion. (Apx.10) On October 30, 2009, Relator filed a supplemental affidavit of indigence requesting the court certify Relator as indigent. (Apx. 11) Affidavit was ignored. On November 6, 2009, Relator discovered Respondent Justice Murphy is the former Judge Murphy of the 14th District Court in Dallas, Texas, whose 2006 void ab initio judgment was usurped by the Real Parties as a Writ for Eviction to evict Relator from his lawfully-owned home located in a different county.
Relator wrote and mailed his Notice of Appeal while in California on case related matters, and did not have the documents needed to attach a pauper’s affidavit. All of his travel expenses were paid by the California party.
1
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ARGUMENT and AUTHORITIES An appellate court can provide relief by writ of mandamus if the relator establishes (1) a clear abuse of discretion by the respondent, and (2) the lack of an adequate remedy by appeal. E.g., In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135-36 (Tex 2004) (orig. proceeding), Walker v. Packer, 827 S W.2d 833, 839 (Tex. 1982) (orig. proceeding). Before an appellate court determines to correct an abuse of discretion of the trial court, the relator must discharge a heavy burden. The Supreme Court described that burden as follows: The relator must establish, under the circumstances of the case, that the facts and law permit the trial court to make but one decision. In order to find an abuse of discretion, the reviewing court must conclude that the facts and circumstances of the case extinguish any discretion in the matter. See Abor v. Black, 695 S.W.2d 564 (Tex. 1985) To meet that burden, it is critical for Relator to briefly address the long history of the litigation as intertwined infra. A. Respondent clearly abused its discretion by denying Relator’s right to a plenary appeal by its refusal to honor Relator as an indigent so that he may obtain a complete trial court record and exercise his remedy to appeal at no cost.
Indigency provisions … have long been liberally construed in favor of a right to appeal. Jones v. Stayman, 747 S.W.2d 369, 370 (Tex. 1987) Courts have routinely allowed litigants to proceed in forma pauperis. (see Walker v. Johnson; 312 U.S. 275 (1941). The federal in forma pauperis statute, enacted in 1892 and presently codified as 28 U. S. C. § 1915, is designed to ensure that indigent litigants have meaningful access to the federal courts. Adkins v. E. I. DuPont de Nemours & Co., 335 U. S. 331, 342-343 (1948). Congress' overarching goal in enacting the in forma pauperis statute: "to assure equality of consideration for all litigants.”
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Coppedge v. United States, 369 U. S. 438, 447 (1962); see also H. R. Rep. No. 1079, 52d Cong., 1st Sess., 1 (1892). Here, Respondent trial and appellate courts sustained the contest or denied the affidavit without contradictory evidence. If the trial court sustains the contest, we must determine whether the court abused its discretion. Cronen v. Smith, 812 S.W.2d 69, 70 (Tex. App.-Houston [1st Dist.] 1991, orig. proceeding). Relator provided evidence that he is receiving government entitlements in the form of food stamps. (See attached exhibit to Apx. 11) TRCP Rule 145(a) defines a party who is unable to afford costs “as a person who is “presently” receiving a governmental entitlement based on indigency or any other person who has no ability to pay costs”. Denying Relator to proceed in forma pauperis is a clear denial of due process, abuse of discretion, and creates a decision that is so arbitrary and unreasonable that it rises to a clear and prejudicial error of law. It effectively bars court access to everyone but the wealthy, and adds another impenetrable layer of protection between the victims and those Too Big to Fail, and allows them to be Too Big to be Held Accountable. A trial court abuses its discretion when its decision is so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. See Walker, 827 S.W.2d at 839; Copeland v. Ayers, 138 S.W.3d 652, 654 (Tex. App.-Dallas 2004, pet. denied); see also Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). For thirteen years the courts have consistently failed to follow rules, laws and principals, resulting in rulings that are unconscionable, arbitrary, unreasonable and clearly wrong. The trial court abuses its discretion when it acts without reference to any guiding rules or principles; the facts and law permit only one decision, which is the opposite of the trial court's decision; or the
4
ruling is so arbitrary and [**5] unreasonable as to be clearly wrong. Arevalo, 983 S.W.2d at 804 (citing Cronen, 812 S.W.2d at 71). The law mandating proper eviction procedures is not discretionary and permits only one decision, which was the opposite of the trial court’s decision2. A. THE CAUSE OF RELATOR’S INDIGENCE MUST BE CONSIDERED Beginning in 1997, Relator was falsely accused of being in default on his mortgage at a time when he, aside from his home, was debt-free with a credit score of 798. Relator alleged he was not in default and provided incontrovertible evidence in support. The history of court records fail to show any evidence of a debt or the identity of a true party with rights to enforce. Relator recently discovered what was behind the fraud Real Parties have successfully concealed. This new evidence confirms he did not owe a debt on his home either. That issue is not before this court and will be litigated as a separate and independent action in the future. Relator’s indigence is the result of countless successful frauds upon various courts and extrinsic fraud on the part of Real Party EMC Mortgage and many others who, with court assistance, practiced subterfuge by filing false pleadings and false statements with numerous courts to gain an unconscionable advantage designed to run Relator out of money so they could cover up nearly two decades of the fraud connected to Relator’s “void” promissory note. Relator alleges this was done while the complicit courts turned a blind-eye to it. In partial support, is the November 2007 certified transcript of the Texas Supreme Court’s Advisory Meeting on Foreclosures. (Apx. 0) This transcript presents proof positive that the banks, courts, foreclosure-mill law firms, lawyers, title and insurance companies, lobbyists, Mortgage Bankers Association and others willingly assisted and wantonly participated in the criminal enterprise responsible for the ‘theft’ of homes and wealth from investors and
2
Texas Property Code § 24.004
5
homeowners that ultimately led to the foreclosure and financial meltdown, and who were again Bailed-Out at the taxpayer’s expense as they were during the 1980’s Savings & Loan Scandal. The transcript baldly asserts, as is the case here, that the mandated paperwork required to lawfully execute a foreclosure simply does not exist in 90% of the cases, stating: [“So finding a document that says, “I am the owner and holder, and I thereby grant to the servicer the right to foreclose in my name” is an impossibility in 90 percent of the cases.”] (transcript page 27, line 16) - Foreclosure mill attorney Michael Barrett. Note: Mr. Barrett is the same attorney who came after Relator in 1997 with false allegations that Relator was in default and Bank of America was the true owner and holder of Relator’s note. Relator recently discovered that Bank of America was never the owner or holder and therefore could not have sold Relator’s promissory note to EMC as both falsely maintained in their pleadings to all courts, including Respondent appellate court in 2001, and this court in 2002. The remedy for when, as Mr. Barrett confirmed “There really isn’t such a document” (Page 27, line 8), was revealed by Judge Bruce Priddy3 (See State of Texas v. Judge Priddy D-1GV-08-002311) when he added: “They just create one for the most part sometimes, and the servicer signs it themselves saying that it’s (sic) been transferred to whatever entity they name as applicant”. (page 28, line 10) First American added: “Well, the other problem -- Judge, this is Tim Redding. The other problem that I see -- and, Tommy, you and I talk about it regularly – that we have a bunch of servicers that are corporations or trusts attempting to foreclose on behalf of other trusts using a power of attorney, and I don't think that's really proper. I mean, we all kind of turn a blind eye to it, but I think that's an issue that's out there that somebody could use to potentially attack a foreclosure.” (page 33, line 5) This Texas Supreme Court transcript suggests why many of the participants engaged in mortgage fraud seek refuge in Texas. The transcript also brings credence to Relator’s belief that
In 2001, attorney Bruce Priddy declined to represent Relator citing the case was “too complex for my level of intelligence”.
3
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neither Bank of America nor EMC could have held him hostage to years of litigation unless the court(s) were willing participants in the Ponzi scheme that allowed EMC to continue its proven4 “illegal” practices, that include, but are in no way limited to, the outright theft of Relator’s home, equity, personal belongings and tendered payments on a debt he now learns didn’t even exist. The sharing of these ill-gotten gains brought the power and influences to make the recruitment of other wanton co-conspirators effortless - and guaranteed their illegal acts would continue unrestrained through a seemingly corrupted judiciary. The 1998 court had only one simple rule to follow. (Apx. 12) The court’s failure to follow this rule has so far subjected Relator to 13 years of groundless litigation and forced him to suffer severe irreparable harms and loss because no original “negotiable” instrument exists. As a result, taxpayers and the district and appellate courts were also subjected to meaningless procedures and trials. Union Pac. Resources Co., 22 S.W.3d 338 (Tex. 1999) It is unsettling that the People of Texas, repeatedly raped and pillaged by rogue BailedOut banks, sought “protection” from a judiciary that has been turning a “blind eye” to their misery and outright theft of their homes. Relator alleges that attacking Relator’s sworn affidavit of indigence is yet another desperate attempt to elude justice. Respondent courts’ repeated denial[s] of the affidavit strips Relator of all legal remedies and protections afforded under the Fourth, Fifth and Fourteenth Amendments. Article I, Section 19 of the Texas Constitution provides: No citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.
4
In FTC v. EMC et al (E.Dist. of Texas, Civil No. 4:08-cv-338) “According to the FTC, the companies misrepresented the amounts borrowers owed on their mortgages, charged unauthorized fees, and used illegal and abusive collection practices”. (Apx.13) EMC tried to collect more than $200,000.00 in bogus fees from Relator.
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B.
Respondent clearly abused its discretion by dismissing Relator’s appeal twelve (12) days before the Notice of Appeal was due.
Relator has no remedy at law if he is once again unjustly barred access to appeal due to his fraud-induced indigence. Mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, to allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and to spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings. Id. at 136, (underline added). Relator believes this case is both exceptional and unconscionable. Now, we have Respondent trial court, in a blatant disregard for law, knowingly allowing the Real Parties to unlawfully evict holdovers without filing a forcible detainer suit in the JP Court in the county where the property is located as mandated by century-old Texas law5, and which also raises the question: How did the four constables get paid, and by whom, if the filing fees for the forcible eviction and detainer suit were not paid? Collin County records 1991-2008 show no listing for a foreclosure or eviction for Relator or his address. (Apx. 14) Real Parties have already made sure Relator cannot afford competent legal representation, discovery tools, court records and filing fees and he should not be prejudiced further. An appellate remedy is "adequate" when the benefits to mandamus review are outweighed by the detriments. Id. (In Re Southwest Concrete Products, Tex, Sup. Ct., 2009) (no cit.) Relator alleges Respondent’s dismissal, based on an August letter, is a repeat of past behaviors by both the respondent appellate court and the real parties in interest. To wit: a.) In the trial court, counsel for real party in interest EMC Mortgage certified in three certificates of service that they mailed its motions to Relator on May 27,
5
Texas Property Code § 24.004
8
2009. These three motions, sent certified mail return receipt requested, were not delivered to Relator until September 11, 2009 – more than three months after the fact – and effectively precluded Relator from responding to, or defending the motions, which ultimately resulted in the granting of a voidable judgment. (Apx.15) b.) In 2006, after nearly a decade of EMC and their schemers litigated Relator into poverty by making false statements to obtain property that EMC admitted under oath they do not own (a first degree felony under Texas Penal Code 32.32), forced Relator to file an Affidavit of Indigence. EMC contested the affidavit which was sustained even though EMC proffered no rebuttal or evidence. When Relator filed a motion for rehearing, the clerk stated the (lawyer) judge would not be able to read the motion for four (4) months. Relator’s Motion to Vacate the 14th District Court’s void judgment was also ignored. c.) Moreover in 2006, Respondent appellate court expressly acknowledged and placed Relator’s appeal on hold pending the final outcome of his 2006 indigence status. Real party Fulbright & Jaworski conveniently waited until 4-6 weeks had lapsed to notify Relator’s Washington D.C. pro bono attorney that the appeal had been dismissed due to Relator’s non-payment of the filing fee. Relator and his counsel did not receive any notice from the Respondent appellate court, yet that docket contained entries that two (2) notices were allegedly mailed. Relator had also signed up to receive V-Notices to instantly notify him of any changes to the appellate docket. He received nothing. This court should have already caught on that a major fraud has been going on inside and upon various court(s). The case history of the fraud against Relator dates back to the 1987 inception of Relator’s “non-negotiable” loan and exposes in detail just how deep and widespread the fraud really goes, along with a list of the many accomplices involved. This entire baseless litigation was best summarized in 2007 by the founder of a law firm. After hearing about the case, the firm flew their three top lawyers to Dallas by private jet to discuss the case. Within 30 minutes of looking at the evidence, the firm’s founder declined to take the case, stating: “There is so much corruption in this case by a bunch of crooked lawyers – including your own – and all of your judges.” C. The Respondent clearly abused its discretion by assigning the appeal to Justice Murphy when a material fact in the underlying case is a void ab initio judgment rendered by Judge Murphy.
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Relator avers the Respondent court has become prejudiced by Justice Murphy’s involvement in the related case. Relator alleges that in 2006, Judge Mary Murphy held a kangaroo court in the 14th District Court in Dallas, Texas, to allow EMC Mortgage to pursue a judgment when she knew or should have known by the evidence that the court did not have jurisdiction. Relator’s counsel brought it to his attention that Fulbright lawyer Jason Fagelman had an interest in the case, as his self-authored “Final Judgment” would make him a partner in the firm. Judge Murphy knew or should have known the disturbing series of events and tainted circumstances that brought EMC’s case to her court. Especially after Fulbright, in total disregard of the procedures of judicial assignments, had, in less than one year, bounced its merit-less lawsuit against Relator around the George Allen Courthouse from judges Ashby, to Sims6, to Stokes, to McFarlane; back to Sims, to Murphy, and then to an alleged judge, lawyer Kelton. Evidence of Fulbright’s power and influence surfaced earlier this year when the Wall Street Journal reprinted a letter written by Fulbright & Jaworski offering a $500,000.00 bribe to a person “if he could convince the Wall Street Journal to kill the story”. (See letter Apx. 16) What judge Murphy knew or should have known, as the case was hallway chatter according to substitute Judge McFarlane, is that in December 2004, Relator’s case, led by Relator’s counsel, Bobby Rubarts of Hughes & Luce, went to trial in the 134th District Court7, where EMC started the trial by announcing: “Your Honor, we made a mistake – EMC does not own Mr. Wright’s home”. This statement was completely ignored by the judge and Relator’s counsel. Relator didn’t understand the profoundness of that statement; that EMC was not the holder in due course with rights to enforce at the time it filed its numerous foreclosures; EMC
In 2005, Judge Sims ordered the Wright case “back to trial”, but later ruled against Wright in EMC’s case without a valid oath of office registered with the court or the Texas Secretary of State until June 2006. 7 Wright v. EMC Mortgage Corporation, Cause No. 02-8531-G
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and its predecessor had been fraudulently invoking the jurisdiction of numerous Texas courts for 8 years, forcing Relator to act on judgments that are void ab initio – a complete nullity. One which from its inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal force and effect whatever, and incapable of confirmation, ratification, or enforcement in any manner or to any degree. Judgment is a "void judgment" if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process. Klugh v. U.S., D.C.S.C., 610 F.Supp. 892, 901. After five days of waiting for Fulbright’s lawyers to mount some resemblance of a defense, Bobby Rubarts took over on redirect examination of EMC’s key witness and corporate representative, Annette Anderson, which recorded the following exchange: Rubarts: (Q) “Mr. Wright was never in default on his mortgage was he?” Anderson: (A) “No.” Rubarts: (Q) “As a matter of fact, Mr. Wright actually overpaid his escrow account didn't he?” Anderson: (A) “Yes.” Rubarts: (Q) “So, you saw Bank of America’s errors; but rather than correct their mistakes – you just decided to steal Mr. Wright’s home and equity didn’t you?” Anderson: (A) (after a lengthy and nervous pause) “Yes.” Within seconds of these admissions, Judge Ashby shut down the trial and forced Relator into a fourth mediation against his will, stating “this is costing far too much money and the other side has threatened to appeal my decision forever”. Judge Ashby made that statement knowing it was false and acted with full knowledge that EMC was there under false pretenses and that the court had no discretion to order Relator to act on void ab initio judgments. Judge Ashby later recused herself without written notice and Mr. Rubarts withdrew, claiming it was at the request of his firm’s ethics committee. This left Relator penniless, without representation, and too ill from the years of trying to defend against the baseless foreclosure attempts by entities who:
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1.) were never the holder in due course with rights to enforce. 2.) never had legal standing to invoke the jurisdiction of any court; 3.) confessed no default occurred to trigger a foreclosure. To be certain the above admissions did not spoil what had been a long-standing and incredibly profitable illegal cash cow for EMC and its now duly defunct parent company Bear Stearns Securities and all its collective accomplices, EMC’s admissions of guilt were expunged from the court transcript. Relator responded by filing an 18-page sworn affidavit with the Texas Court Reporters Commission, but no longer had the resources to travel to Austin to attend the hearings, and the matter was dismissed. With the admissions of guilt now wiped clean, Relator had to spend the last several years to find another way to conclusively reprove EMC’s admissions. Some of those recent findings are referenced further below. During the fourth mediation, Relator’s own lawyer repeatedly threatened him with the fear of economic loss and depletion of assets every time he tried to leave without acceding to EMC’s unconscionable and one-sided demands, and held under these threats for 12-14 hours. (Prior to admitting at trial that Relator was never in default and EMC did not own the loan, EMC was demanding Relator’s home - plus $202,000.00 in spurious fees to settle the case.) Operating with a greatly diminished mental capacity, too ill to read the sham documents, and knowing EMC was famous for breaching settlement agreements, Relator was forced to sign the demands before he could leave. Petitioner planned to take EMC’s demands to judge Ashby, but he was not given a copy. It was known by all parties that Relator had become destitute from the years of legal expenses and loss of income, so a $20,000.00 teaser check was used as an incentive to sign, and was to be executed upon signing. When Relator delivered EMC’s demand letter to their lawyer, he was told the check was not cashable as there were not enough funds in the IOLTA account.
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When Relator emailed his attorney to find out when the hearing to dismiss his case would be, Mr. Rubarts responded that he didn’t know what Relator was talking about, as there was not going to be a hearing. That was false. In March 2005, Relator was able to attend the third hearing on an Agreed Motion to Dismiss8. When Judge Sims asked Relator if he agreed to the terms of the settlement, Relator said no. Judge Sims later announced: “This settlement agreement will not go into effect until I sign it – and I am not going to. This case is going back to trial”. (It would be more than a year before Relator would be allowed to read EMC’s demands.) EMC responded to Judge Sims by literally walking across the hall to Judge Stokes court and sued Relator for breach of a contract with full knowledge they had issued Relator a hot check and were acting on void judgments. The next time Relator appeared in court was in June 2005 on EMC’s motion to compel Relator’s third deposition. After witnessing EMC testify that Relator was never in default and EMC did not own the loan, Fulbright & Jaworski’s lawyers stood before Judge McFarlane and falsely stated: “Your Honor, Mr. Wright has been living in his house for free for the last 8 years”. (Id. Hearing transcript) Relator was too ill to properly respond and Judge McFarlane told Relator to sit down and threatened him with jail time plus a $5,000 fine if he didn’t comply. That same month, a Washington D.C. lawyer heard about Wright’s case and offered to represent him at Fulbright’s video-taped deposition at no cost. During the deposition, Wright and his counsel were presented with copies of EMC’s demands, directed to specified page numbers and asked questions pertaining to its contents. Wright could not answer the questions because the pages of EMC’s “secret” demands were all blank, except for the page numbers. At the end of 10 hours of questioning, Fulbright & Jaworski had nothing to support their case.
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An Agreed Order of Dismissal was never signed.
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All these and many other ruses were used to wear down and bankrupt Relator so EMC could un-ring the bell and continue its illegal practices. But the evidence and truth remain.
B. THE FICTITIOUS LOAN DOCUMENTS EMC CREATED Just prior to the 2004 partial trial, Real Party in Interest Swartzendruber sent an email to Relator’s former trial counsel Bobby Rubarts, telling him that they had a copy of the “original” loan documents and anticipated Rubarts would come by to examine them. When Relator’s expert trial witness started examining the alleged copies and noticed the fraud, Rubarts quickly snatched them out of her hands. Relator has since recovered the loan documents EMC created and incorporates a few of the annotated pages in the appendix. (Apx. 17) This court will notice that what Real Party lawyer Swartzendruber claimed to be a copy of the “original” was a false statement. The documents are nothing more than a mishmash of fabricated documents that show, inter alia, that not one, but two (2) lost note affidavits (“LNA”) were created and back-dated 5 years before EMC falsely alleged they purchased the loan. (The mortgage industry and its lawyers frequently create LNA’s to recreate an alleged debt after the original toxic asset was intentionally destroyed, discharged by law, or allegedly lost.) The nonnegotiable instrument shows the loan was packaged into at least 3 different mortgage-backed securities without duly recorded assignments; a signature that does not match the name typed below it; four (4) different loan amounts; three (3) different loan numbers; loan papers filed in two separate counties, plus an alleged assignment to the Resolution Trust Corporation. According to these documents, it appears the loan EMC affixed its name to… was not even Relator’s loan.
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CONCLUSION It should be evident to this court that EMC et al had to run Relator out of money, get rid of his lawyers, take his home for free, create a fraudulent title, sell his home for more profit, train the courts to ignore the law and turn a blind eye to the evidence and truth to help cover up their years of egregious crimes against him. Relator has, in good faith and with clean hands, respectfully been trying to defend himself and his property in a judiciary that is fraught with fraud and where his adversaries’ tyranny has maintained an unconscionable advantage both inside and outside the courts. Relator prays he has provided this court with ample grounds to refer this case for a more deliberative investigation or at minimum, request further briefing. PRAYER Relator requests that this Court grant his petition for writ of mandamus and order the court of appeals to vacate its September 16, 2009 order. In the interest of justice and judicial integrity, it should be obvious that Relator cannot get a fair court in the DFW area. Merely remanding the case back to the same courts will only return Relator to forums he can prove - are rigged to fail him 100% of the time. Therefore Relator requests venue be changed to an adjoining northern county. In the alternative, Relator requests Justice Murphy be recused and an equitable justice be assigned. Relator further requests that this Court order the court of appeals to honor Relator’s affidavit and allow Relator to proceed in forma pauperis with a 60-day leave. Additionally, Relator requests this Court order the lower courts that all fees unjustly taxed against Relator be returned to him, and to award him any other relief to which he may be entitled. __/s/: Robert John Wright________ Robert John Wright P.O. Box 797762 Dallas, Texas 75379 / 972-955-6735
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VERIFICATION BEFORE ME, the undersigned notary public, on this day personally appeared Robert John Wright, who being duly sworn by me deposed and said:
1. "I am Robert John Wright, the Relator in this case. 2. I am over 21 years of age and am competent to make this affidavit. 3. I have read the Petition for Writ of Mandamus to which this verification is attached, and every factual statement contained therein is within my personal knowledge and is true and correct. 4. There is an appendix attached to the Petition for Writ of Mandamus. I have personal knowledge that the documents contained in the appendix are true and correct copies."
FURTHER AFFIANT SAYETH NOT. ____Original stamped and signed____ Robert John Wright – Relator - Pro se
CERTIFICATE OF SERVICE I certify that, on December 7, 2009, I served, with prior notice, a copy of this motion by email to the following: __/s/: Robert John Wright________ Robert John Wright Wm. Lance Lewis [email protected] Quilling, Selander, Cummiskey & Lownds 2001 Bryan Street, Suite 1800 Dallas, Texas 75201 Robert J. Davis [email protected] Matthews, Stein, Shiels, Pearce, Knott, Eden & Davis, L.L.P. 8131 LBJ Freeway, Suite 700 Dallas, Texas 75251 David N. Kitner [email protected], Strasburger & Price, L.L.P. 901 Main Street, Suite 4400 Dallas, Texas 75202
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