Chris Rodriguez v. US Home Ownership LLC

ACCEPTED 04-15-00347-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 6/23/2015 3:45:11 PM KEITH HOTTLE CLERK

No. 04-15-00347-CV

IN THE COURT OF APPEALS FILED IN FOR THE FOURTH JUDICIAL DISTRICT 4th COURT OF APPEALS SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS ________________________________________________________________________ 06/23/2015 3:45:11 PM KEITH E. HOTTLE CHRIS RODRIGUEZ AND ANN MARIE RODRIGUEZ, Clerk Appellants

v.

US HOME OWNERSHIP, LLC Appellee ________________________________________________________________________

APPELLEES’ MOTION TO DISMISS FOR LACK OF JURISDICTION ________________________________________________________________________

TO THE HONORABLE FOURTH COURT OF APPEALS:

NOW COMES Appellee US Home Ownership, LLC and files this its Motion to Dismiss for Lack of Jurisdiction and respectfully shows as follows:

A. INTRODUCTION

1. Chris Rodriguez and Ann Marie Rodriguez are the Appellants.

2. US Home Ownership, LLC is the Appellee.

3. This is an appeal of a Default Order signed by the trial court on May 6, 2015, granting Appellee’s Application for Expedited Order for Foreclosure pursuant to Texas Rule of Civil Procedure 736. (CR 57-59; 62-63).

4. Appellee would respectfully show herein that this honorable Court lacks jurisdiction because, by the express provisions of Texas Rule of Civil Procedure 736, an order granting an application filed pursuant to Rule 736 is not subject to appeal. Tex.R.Civ.P. 736.8(c). Accordingly, the instant appeal should be dismissed for want of jurisdiction.

B. FACTS AND ARGUMENT

5. Appellee brings this Motion to Dismiss pursuant to Texas Rules of Appellate Procedure 10 and 42.3(a).

6. On January 30, 2015, Appellee, US Home Ownership, LLC, as Petitioner in the trial court, filed its Application for an Expedited Order Under Rule 736 on a Home Equity, Reverse Mortgage, or Home Equity Line of Credit. (CR 1-34).

7. On March 31, 2015, Appellee, US Home Ownership, LLC, as Petitioner in the trial court, filed its Motion for Rule 736 Default Order Allowing Rule 736 Foreclosure of Home Equity Lien Without Hearing Under Tex. R. Civ. P. 736.7. (CR 41-49).

8. On May 6, 2015, the trial court signed the Default Order granting Appellee’s Application for Expedited Order for Foreclosure pursuant to Texas Rule of Civil Procedure 736. (CR 57-59).

9. On June 4, 2015, Appellant Chris Rodriguez filed a Notice of Appeal. (CR 62-63). Ann Marie Rodriguez did not join in and is not included in the Notice of Appeal. (CR 62-63). In the Notice of Appeal, Appellant Chris Rodriguez gives notice of his intent to appeal “the trial court’s judgment rendered on 5-6-15.” (CR 62).

10. Accordingly, Appellant Chris Rodriguez has appealed to this honorable Fourth Court of Appeals the Default Order signed by the trial court on May 6, 2015, granting Appellee’s Application for expedited order for foreclosure pursuant to Texas Rule of Civil Procedure 736. (CR 57-59; 62-62).

11. Texas Rule of Civil Procedure 736.8(c) states as follows:

An order granting or denying the application is not subject to a motion for rehearing, new trial, bill of review, or appeal. Any challenge to a Rule 736 order must be made in a suit filed in a separate, independent, original proceeding in a court of competent jurisdiction.

12. This honorable Court lacks jurisdiction over the instant appeal because, by the express provisions of Texas Rule of Civil Procedure 736, an order granting an application filed pursuant to Rule 736 is not subject to appeal. Tex.R.Civ.P. 736.8(c). Any challenge to a Rule 736 order must be made in a separate suit filed in a court of competent jurisdiction. Id. Accordingly, this honorable Court has no discretion to do anything but dismiss an attempted appeal from a Rule 736 order. Grant-Brooks v. FV 1, Inc., 176 S.W.3d 933, 933 (Tex.App.-Dallas 2005, pet. denied); Hunter v. Bank of New York Mellon, 2015 WL 1736341 (Tex.App.-Hous.(14th Dist.) 2015, no pet.). Appellee hereby requests that the instant appeal be dismissed in its entirety for want of jurisdiction.

C. CONCLUSION AND PRAYER

13. For the reasons set forth herein above, Appellee respectfully requests: (1) that the instant appeal be dismissed in its entirety for want of jurisdiction; (2) that Appellee be awarded its costs; and (3) that Appellee be awarded such other and further relief to which it may be justly entitled.

Respectfully submitted,

MC NELIS + WINTER , PLLC 143 W. Sunset Road, Suite 200 San Antonio, Texas 78209 Telephone: (210) 826-2440 Facsimile: (210) 826-2451

By: /s/ West W. Winter West W. Winter State Bar No. 24008291 west@mcneliswinter.com

ATTORNEYS FOR APPELLEE

CERTIFICATE OF CONFERENCE

I, the undersigned counsel for Appellee, hereby certify that I have conferred with Appellant CHRIS RODRIGUEZ about the merits of the instant Motion, and I have determined that he is opposed to Appellees’ Motion to Dismiss For Lack of Jurisdiction.

/s/ West W. Winter West W. Winter

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was served upon all parties and/or counsel as listed below, on this the 23rd day of June, 2015:

Mr. Chris Rodriguez Via First Class Mail and Mrs. Ann Marie Rodriguez Certified/Return Receipt Requested 226 Forest Valley Drive Article #7012 3460 0000 1913 0135 San Antonio, Texas 78227

Ms. Yanira M. Reyes Via Email: Harrison & Duncan, PLLC hdlaw@legalcounseltexas.com 8700 Crownhill, Suite 505 San Antonio, Texas 78209

/s/ West W. Winter West W. Winter