J.M. Arpad Lamell v. OneWest Bank, FSB, a Foreign Corporation

ACCEPTED 14-14-00175 FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 2/19/2015 3:06:49 PM CHRISTOPHER PRINE CLERK

No. 14-14-00175-CV

IN THE COURT OF APPEALS FILED IN 14th COURT OF APPEALS FOURTEENTH DISTRICT OF TEXAS HOUSTON, TEXAS HOUSTON 2/19/2015 3:06:49 PM CHRISTOPHER A. PRINE Clerk

J. M. ARPAD LAMELL, Appellant

“Lamell”

v.

ONEWEST BANK, FSB, Appellee

“OneWest” _____________________________________________________________

MOTION TO REDUCE SUPERSEDEAS SECURITY

____________________________________________________________

February 19, 2015

J M ARPAD LAMELL, pro se 5131 Glenmeadow Drive Houston, TX 77096 lamell@alum.mit.edu (713) 857 2483 Appellant

TABLE OF CONTENTS

TABLE OF CONTENTS..................................................................................... ii KEY TO RECORD REFERENCES.................................................................. iii TABLE OF AUTHORITIES.............................................................................. iv I. BACKGROUND FACTS ................................................................................. 1 II. ARGUMENT AND AUTHORITY ................................................................ 4

A. Take Nothing Judgment Granted No Damages or Other Affirmative Relief ........................................................................................................... 4 B. This Court May Review Amount of Supersedeas Security ..................... 5 C. A Supersedeas Bond is Inextricably Founded in a Cause of Action ........ 5 D. Lamell’s Supersedeas Security was Cash Posted in Lieu of Bond .......... 6 E. No Performance to Secure ...................................................................... 6 F. Posted Cash in Lieu is for Security; Is Not an Award ............................. 7

III. CONCLUSION .............................................................................................. 7 PRAYER .............................................................................................................. 8 CERTIFICATE OF SERVICE ........................................................................... 9 EXHIBITS ...........................................................................................................10 Motion to Reduce Supersedeas Security 2015-02-19 | ii

KEY TO RECORD REFERENCES

Naming Conventions Code name in Motion = FILENAME OF COA DIGITAL FILE, page range, record references in document are formatted as follows: [KEY:p. # - p. #] Clerk's Record References

KEY long-form filename as submitted to COA “Title” date filed with COA

CLK = CLK REC (01 OF 01) FLD 053112.pdf – pgs 001– 212 “Clerk’s Record - Volume I” transferred from 14-12- 00412-CV and filed March 25, 2014

CR = CR (01 OF 01) FLD 043014.pdf – pgs 001– 755 “Original Clerk’s Record” filed April 30, 2014

CR-SUP = CR SUP (01 OF 01) FLD 063014.pdf – pgs 01– 78 “1st Supplemental Clerk’s Record” filed June 30, 2014

CR-SUPP = CR SUPP (01 OF 01) FLD 092214.pdf pgs 01– 59 “3rd Supplemental Clerk’s Record” filed Sept 22, 2014

CR-SUP4 = CR FOURTH SUP FLD 021115.pdf pgs 01-64 “4th Supplemental Clerk’s Record” filed Feb 11, 2015

Motion to Reduce Supersedeas Security 2015-02-19 | iii

TABLE OF AUTHORITIES Cases

Bayoud v. Nassour, 408 S.W.2d 344 (Tex.Civ.App., Dallas, 1966, writ ref. n. r. e.) .......................... 7 Casray Oil Corporation v. Royal Indemnity Co., 165 S.W.2d 244 (Tex.Civ.App., Galveston, 1942), affirmed 141 Tex. 33, 169 S.W.2d 955 (1943) .................................................................. 6 City of Athens, Texas v. Gulf States Telephone Co., 374 S.W.2d 757 (Tex.Civ.App., Tyler, 1964, no writ)) ....................................... 6 GM Houser, Inc. v. Rodgers, 204 S.W.3d 836, 840 (Tex. App.—Dallas 2006, no pet.) .................................... 4 LMC Complete Automotive, Inc. v. Burke, 229 SW 3d 469, 483 (Tex. App. —Houston [1st Dist.] 2007, pet. denied).......... 5 Mea v. Mea, 464 S.W. 2d 201, 208 (Tex.App.—Tyler 1975, no writ) ..................................... 7 Reyes v. Credit Based Asset Servicing, 190 S.W.3d 736, 741-2 (Tex. App.—San Antonio 2005, no pet.), concurring J. Duncan .......................................................................................... 7 Robertson v. Land, 519 S.W.2d 227, 228 (Tex. App.—Tyler 1975, no writ) ..................................... 6

Statutes

TEX. CIV. PRAC. & REM. CODE §52.001 ................................................................. 6 TEX. CIV. PRAC. & REM. CODE §52.006 .......................................................... 1, 4, 5 TEX. CIV. PRAC. & REM. CODE §52.006(d) ..........................................................1, 5

Rules

TEX. R. APP. P. 24.1(d) ........................................................................................ 6, 8 TEX. R. APP. P. 24.1(d)(3) ................................................................................... 6, 8 TEX. R. APP. P. 24.2(a)(2) ...................................................................................... 6 TEX. R. APP. P. 24.4(a) ........................................................................................... 6

Motion to Reduce Supersedeas Security 2015-02-19 | iv TO THE HONORABLE COURT OF APPEALS:

Comes now Appellant J. M. ARPAD LAMELL (“Lamell”) requesting, pursuant to TEX. R. APP. P. 24.4(a) and TEX. CIV. PRAC. & REM. CODE §52.006(d), that this Court review the excessiveness of and reduce the amount of the Supersedeas Bond set by the trail court in its Order Setting Supersedeas Bond Amount Pending Appeal. As grounds therefore Lamell would show as follows:

I. BACKGROUND FACTS

Lamell filed his Plaintiff’s Amended 2009 Petition against Appellee/Defendant OneWest Bank, FSB (“OneWest”) on May 3, 2010 [CLK:63-118]. OneWest answered on May 28, 2010 with Defendant’s Original Answer offering only a general denial and raising no counterclaims or other claims for affirmative relief [CLK:119-120]. OneWest has never amended or supplemented its Defendant’s Original Answer since.

On February 27, 2012 Lamell filed his Plaintiff’s Application for Temporary Restraining Order to restrain OneWest from proceeding with non-judicial foreclosure sale of his property pending adjudication and final determination of his suit against OneWest.

On February 28, 2012 Lamell’s Plaintiff’s Application for Temporary Restraining Order was granted setting a Temporary Injunction hearing for March Motion to Reduce Supersedeas Security 2015-02-19 | 1 9, 2012 [CLK:129-131].

On April 10, 2012, the trial court issued its Order Denying Plaintiff’s Application for Temporary Injunction [CLK:191].

In respect of the court’s April 10, 2012 order, Lamell filed his Notice of Accelerated Appeal on April 30, 2012.

On May 16, 2012, Lamell filed his Motion to Stay Enforcement of Order Denying Injunctive Relief or Alternatively set Supersedeas Bond Amount Pending Appeal [CR-SUP:3-9].

On May 24, 2012, OneWest filed its Defendant’s Response to Plaintiff’s Motion to Stay Enforcement of Order Denying Injunctive Relief, or Alternatively, set Supersedeas Bond Amount Pending Appeal [CR-SUP:10-17].

On May 31, 2012 the trial court issued its Order Setting Supersedeas Bond Amount Pending Appeal [CR-SUP:21-2] to “supercede and stay enforcement” of its April 10, 2012 Order Denying Plaintiff’s Application for Temporary Injunction.

In connection with this order, Lamell was directed to file a “good and sufficient 1 bond” in a schedule of payments totaling $31,209.76.

Lamell subsequently paid into the registry of the Court cash deposits in lieu

1 The order calls for an initial payment of $15,679.00 on or before June 1, 2012, followed by 9 monthly payments of $1,735.64 ending in a final payment on or before March 1, 2013

Motion to Reduce Supersedeas Security 2015-02-19 | 2

2 of Supersedeas Bond totaling $31,309.76.

On April 12, 2013, the court signed its interlocutory Order Granting

Defendant OneWest’s Traditional and No Evidence Motion for Summary Judgment 3 [SUP-CLK:3].

On November 19, 2013 OneWest filed its Third Motion to Authorize Release of Bond to Defendant OneWest [CR-SUP:53-70]. Lamell filed his Plaintiff’s Response in Opposition to Third Motion to Authorize Release of Bond to Defendant OneWest on January 31, 2014 (“Opposition”). Lamell’s Opposition

identified that OneWest’s request was unsupported by any evidence, by its 4 pleadings, by the rules, and by the court’s judgment. [CR-SUPP:38-49].

The court’s former interlocutory summary judgment order was replaced on

2 Amount shown is exclusive of accrued interest. See Clerk’s Certificates of Deposit in lieu of Supersedeas Bond in“4th Supplemental Clerk’s Record” [CR-SUP4:3-42]. Upon filing of 4th Supplemental Clerk’s Record (filed Feb 11, 2015), certificates for the months of August 2013 and December 2013 were erroneously omitted. Request for correction on an expedited priority basis has been made. It is hoped that the missing certificates will be added to the Court record prior to submission. 3 The court’s order was interlocutory only because Lamell’s claims against Harris County Tax Assessor were still outstanding and had not yet been disposed of. 4 The indicated record reference points to the first page of Lamell’s Opposition which shows a filing date of September 10, 2014. This date does not reflect the true and correct filing date of January 31, 2014. This discrepancy was resolved by Lamell’s Motion to Re-establish Lost Filing [CR-SUP4:43-58]. The court’s order approving said motion - Order to Re-establish Lost Filing - is attached hereto as Exhibit “A.” Though request in writing has been made to include this order in the clerk’s most recent supplement (as shown in the record [CR-SUP4:59]), this order was nonetheless erroneously omitted and does not currently appear in the 4th Supplemental Clerk’s Record. Correction has been requested on an expedited, priority basis. It is hoped the missing document will be included in the record prior to submission.

Motion to Reduce Supersedeas Security 2015-02-19 | 3 January 31, 2014 by its final and appealable Modified Order Granting Summary Judgment and Final Judgment in Case No. 2010-11491 (Exhibit “B”). The court’s take-nothing order/final judgment contained clear and specific notation as follows: “This Order disposes of all parties and all claims and is appealable” [CR:716-7] (emphasis added). The court’s order did not award any money damages or property to OneWest.

The trial court’s Order Granting OneWest Bank FSB’s Third Motion to Authorize Release of Bond of January 31, 2014 has become an issue within Lamell’s present appeal before this Court as addressed in Appellant’s Brief, pgs.65-71 and in Appellant’s Supplemental Brief, pgs. 2-9.

Lamell’s appeal is set for submission on Tuesday, February 24, 2015.

II. ARGUMENT AND AUTHORITY

A. Take Nothing Judgment Granted No Damages or Other Affirmative Relief

“When a judgment is for money, the amount of the security must equal the sum of: (1) the amount of compensatory damages awarded in the judgment; (2) interest for the estimated duration of the appeal; and (3) costs awarded in the judgment.” GM Houser, Inc. v. Rodgers, 204 S.W.3d 836, 840 (Tex. App.—Dallas 2006, no pet.) (citing TEX. CIV. PRAC. & REM. CODE §52.006; TEX. R. APP. P. 24.2(a)(1)). Motion to Reduce Supersedeas Security 2015-02-19 | 4

Other provisions of the Rule provide the basis for supersedeas security when judgment awards property to an appellee. TEX. R. APP. P. 24.2(a)(2). In this matter however, the court’s final, take-nothing, judgment contained no award for the recovery of an interest in real or personal property. TEX. R. APP. P. 24.1(d)(3). Since the judgment awarded neither money damages nor property to OneWest, there is nothing to secure and the Court should adjust the bond amount to zero. B. This Court May Review Amount of Supersedeas Security

On the motion of a party, an appellate court may review the sufficiency or excessiveness of the amount of security. TEX. CIV. PRAC. & REM. CODE §52.006(d); TEX. R. APP. P. 24.4(a); LMC Complete Automotive, Inc. v. Burke, 229 SW 3d 469, 483 (Tex. App. —Houston [1st Dist.] 2007, pet. denied). “Review may be based both on conditions as they existed at the time the trial court signed an order, and on changes in those conditions afterward.” TEX. R. APP. P. 24.4(b); LMC Complete Automotive, Inc., supra. C. A Supersedeas Bond is Inextricably Founded in a Cause of Action

“The Supersedeas Bond given by appellants is a mere incident to a cause of action and judgment appealed from and is given to afford the adverse party the means of enforcing the judgment appealed from if appeal or writ of error is not prosecuted with effect.” Robertson v. Land, 519 S.W.2d 227, 228 (Tex. App.— Motion to Reduce Supersedeas Security 2015-02-19 | 5 Tyler 1975, no writ) (citing Casray Oil Corporation v. Royal Indemnity Co., 165 S.W.2d 244 (Tex. Civ. App., Galveston, 1942), affirmed 141 Tex. 33, 169 S.W.2d 955 (1943). Also see City of Athens, Texas v. Gulf States Telephone Co., 374 S.W.2d 757 (Tex. Civ. App. —Tyler 1964, no writ)). D. Lamell’s Supersedeas Security was Cash Posted in Lieu of Bond

Lamell made cash deposits totaling $31,209.76 in lieu of bond (“Security”) to the Court's registry to secure that he will “perform its judgment, sentence or

decree and pay all such damages and costs as said court may award against him.” 5 [CR-SUP:65-7] TEX. R. APP. P. 24.1(c).

E. No Performance to Secure

The trial court awarded no money damages whatsoever against Lamell leaving nothing further for Lamell to “perform.” Nor did the trial court’s final judgment award any non-economic damages to OneWest, such as award of the subject property by strict judicial foreclosure [CR:716-7].

The plain language of Rule 24.2 contemplates that the purpose of a supersedeas bond or the equivalent security is to secure an appellant’s performance of the trial court’s final judgment. When, as here, an appellee neither sought nor

5 “In this chapter, ‘security’ means a bond or deposit posted, as provided by the Texas Rules of Appellate Procedure, by a judgment debtor to suspend execution of the judgment during appeal of the judgment.” TEX. CIV. PRAC. & REM. CODE §52.001.

Motion to Reduce Supersedeas Security 2015-02-19 | 6 received any award of money damages or recovery of an interest in real or personal property, there is simply no performance nor any value to secure. TEX. R. APP. P. 24.1(d)(3). Reyes v. Credit Based Asset Servicing, 190 S.W.3d 736, 741-2 (Tex. App.—San Antonio 2005, no pet.), concurring J. Duncan. Therefore, there is no breach of condition of the Security. Insofar as the court’s final order established money/property damages of zero, it is axiomatic that the amount of security required must be reduced to zero as well. F. Posted Cash in Lieu is for Security; Is Not an Award

Where appellant has deposited cash in lieu of a bond, then such cash must of necessity serve as indemnity to appellee in addition to appellant's personal liability for the performance of the judgment. This cash deposit, however, is not in payment of the judgment and costs, but is only security for the payment of such. Mea v. Mea, 464 S.W. 2d 201, 208 (Tex.App.—Tyler 1975, no writ) (citing Bayoud v. Nassour, 408 S.W.2d 344 (Tex.Civ.App., Dallas, 1966, writ ref. n. r. e.).; TEX. R. APP. P. 24.1(d).

III. CONCLUSION

Lamell’s Appeal is directed to error in the court’s issuance of its Modified Order Granting Summary Judgment and Final Judgment and its separate Order Granting OneWest Bank FSB’s Third Motion to Authorize Release of Bond. Motion to Reduce Supersedeas Security 2015-02-19 | 7 Lamell’s present motion is directed to the excessiveness of the bond amount.

While clearly disposing of all of Lamell’s claims, the court’s take-nothing order granting summary judgment, as the final and over-arching order in this matter, did not create any debt of money owed to OneWest that would establish it as a judgment debtor under the rules. Consequently, there was no debt of money or property created or owed by virtue of the court’s final judgment, i.e. the “debt” created was for zero dollars. It follows as a matter of definition that the amount of supersedeas security should be reduced to zero as well.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant J. M. Arpad Lamell prays that this Motion to Reduce Supersedeas Security be granted, that the amount of supersedeas security required be reduced to zero dollars, and that the Court order the cash balance of Lamell’s deposits paid in lieu of bond into the court’s registry to be released to him.

Respectfully submitted,

/s/ J. M. Arpad Lamell J M Arpad Lamell, pro se 5131 Glenmeadow Drive Houston, TX 77096 713 857 2483 lamell@alum.mit.edu

Motion to Reduce Supersedeas Security 2015-02-19 | 8

CERTIFICATE OF SERVICE

I hereby certify that on February 19, 2015, a true and correct copy of the foregoing “Motion to Reduce Supersedeas Security” was sent by e-service/e-mail to Mr. Thomas Hanson, lead counsel for Appellee OneWest to the address as shown below.

/s/ J. M. Arpad Lamell

J M Arpad Lamell

Via: TexFile e-service and e-mail. To: Thomas M. Hanson DYKEMA Commercia Bank Tower 1717 Main Street, Ste. 4000 Dallas, TX 75201 (214) 462-6420 telephone (214) 462-6401 telecopier thanson@dykema.com www.dykema.com Counsel for Appellee OneWest Bank

Motion to Reduce Supersedeas Security 2015-02-19 | 9

EXHIBITS

Exhibit “A” – Order to Re-establish Lost Filing (Supplementation Pending)

Exhibit “B” – Modified Order Granting Summary Judgment and Final Judgment [CR:716-7]

Motion to Reduce Supersedeas Security 2015-02-19 | 10

Cause No. 2010-11491

J. M ARP AD LAMELL § IN THE DISTRICT COURT OF Plaintiff. § § HARRIS COUNTY, TEXAS v. § § l271h JUDICIAL DISTRICT ONEWEST BANK, FSB § Defendant. §

ORDER TO RE-ESTABLISH LOST FILING

Came before this Court for oral hearing on January 9, 2015, Plaintiffs Motion to Re-establish Lost Filing. Plaintiff Arpad Lamell appeared in person. Defendant OneWest did not appear nor did it file an opposition.

The Court having considered the Motion, the evidence presented, and the testimony and arguments of Plaintiff, finds that Plaintiff's Motion should be GRANTED.

IT IS, THEREFORE, ORDERED that Plaintiffs Motion to Re-establish Lost Filing be GRANTED and the Court declares that the copy of Plaintiffs Response in Opposition to Third Motion to Authorize Release of Bond to Defendant OneWest presently imaged in the District Clerk's Record as Image Nos: 62288269 (Motion), 62288211 (Affidavil of J.M Arpad Lame/I), 62288270 (Exhibit A) and bearing a filing date of September 10, 2014, is a true and correct copy of the Opposition as it was presented to the Court, served on Defendant's Counsel, and filed on January 31 , 2014.

SO ORDERED this r:: of January, 2015. /

FI LED Chris Daniel Dlatrlct Clerk

JAN 0 9 201

l._l .. Ul._U 11J J.uu.uu niWI

Chris Daniel - District Clerk Harris County

CAUSE NO. 2010-11491

J. M. ARP AD LAMELL § § IN THE DISTRICT COURT 31"tm f... Plaintiff, § HARRIS COUNTY, TEXAS v. § § § ---~~_._JUDICIAL DISTRICT ONEWEST BANK, FSB, a § FI L ~-.u Chris Daniel District Clark FOREIGN CORPORATION, §

Defendant. § DEC 2 8 2013 f.me=-~:--:--=-"""""'"'::--::---­ Harrls County, Texas

BY.----------~--------- oeputy

MODIFIED ORDER GRANTING SUMMARY JUDGMENT 0{ WJ/ h Yla</ .....-:- 0vcfh1evvr On April 12, 2013, this Court issued its "Order Granting Defendant ONEWEST's

Traditional and No-Evidence Motion for Summary Judgment", which order granted Defendant's motion in its entirety and further ordered that all of Plaintiffs claims against ONE WEST were to be dismissed WITH prejudice.

Plaintiff J. M. Arpad Lamell filed his timely motion to modify said Court's Judgment to reflect that, as to the claim of Wrongful For~closure only, dismissal of that particular claim should be WITHOUT prejudice.

The Court having considered the Motion, all pleadings and evidence on file, and the arguments of Plaintiff and ONEWEST's counsel, and being fully advised in the premises, finds that Plaintiffs motion to modify its judgment should be granted and that the Court's judgment of April12, 2013 BE VACATED AND HEREBY REVISED as follows:

IT IS, THEREFORE, ORDERED that Defendant ONEWEST's Traditional and No-Evidence Motion for Summary Judgment" is GRANTED. Motwn to Modify Judgment - Order pg. 1

IT IS, THEREFORE, FURTHER ORDERED that Plaintiffs claim against ONEWEST

for Wrongful Foreclosure is hereby dismissed WITHOUT prejudice and that all of Plaintiffs

OTHER claims against ONEWEST are hereby dismissed WITH prejudice.

I$ (A_ .ti-\(!A I J"w11?'7Prff.

s-1 SO ORDERED this 3/ day of ~7 _ , 2o1_i_.@ II.' 3~ ~. n1

Orcle-r o(,"ro:,-·5 Agreed

(JJ c.._f( fo.iP'""'!:> a~

ot l ( t(cu mS o_ vt o1' r s Thomas M. Hanson State Bar No. 24068703 DYKEMA GOSSETT, PLLC 1717 Main Street, Ste. 4000 Dallas, TX 75201 (214) 462-6420 telephone (214) 462-6401 telecopier thanson@dykema.com ATTORNEYS FOR ONEWEST BANK, FSB

Agreed as to Form Only

Is/ J. M. Aroad Lamell J. M. Arpad Lamell, Pro Se 5131 Glenmeadow Drive Houston, TX 77096 713 857 2483 lamell@alum.mit.edu

Motwn to Modify Judgment - Order pg. 2