Preview
OR\G\NAL CAUSE NO. 141-256938-11
RODNEYL WAGNER, §
§
Plaintiff, §
§
v. §
§
FEDERAL NATIONAL MORTGAGE §
CORPORATION A/K/AFANNIE §
MAE, and all Successors et al §
BARRETT DAFFIN FRAPPIER §
TURNER & ENGEL, LLP, §
§
Defendants. § TARRANT COUNTY, TEXAS
DEFENDANTS' MOTION TO DISMISS
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Defendants Federal National Mortgage Corporation ajkja Fannie
Mae, and all Successors et al ("Fannie Mae") and Barrett Daffin Frappier Turner &
Engel, LLP ("BDFTE") (collectively "Defendants") and file this motion to dismiss the
Petitioner's Original Petition and Application for Temporary Restraining Order and
Temporary Injunction supported by affidavit ("Plaintiffs Original Petition") and the
Verified Amended Pleading Supported by Affidavit ("Plaintiffs Amended Petition") filed
by Plaintiff Rodney L. Wagner ("Plaintiff') against Defendants. In support thereof,
Defendants respectfully show this Honorable court the following:
I.
Facts Relevant to Motion
1. On December 13, 2011, Plaintiff filed his Plaintiffs Original Petition.
Defendants answered and specially excepted to Plaintiffs Original Petition. On January
4, 2012, after a hearing in which Defendants' special exceptions were sustained, this
Court entered an Order on Defendants' Special Exceptions (the "Order"). Pursuant to
DEFENDANTS' MOTION TO DISMISS PAGEl
j
•
Wtl)l1 11\l:llSIO
t\3011 M''9 S'lf\40\11
92:\ 'rld t-S3HIOZ
the Order, Plaintiff was required to re-plead Plaintiffs Original Petition within twenty
(20) days from the date of the Order.
2. Specifically, the Order required Plaintiff to amend his pleading, with
respect to Defendants as follows:
"(1) for each claim or cause of action Plaintiff intends to assert as an
affirmative claim for relief against Defendants, Plaintiff shall clearly
identify that claim or cause of action and that the claim or cause of
action is being asserted against Defendants at the beginning of a
paragraph or paragraphs devoted to that claim or cause of action by
stating, by way of example, Plaintiff sues [name of individual
Defendant] for [name of claim or cause of action]; and (2) in the
paragraph or paragraphs devoted to each claim or cause of action
described in subparagraph (1), above, Plaintiff shall identify the acts
or omissions attributable to each individual Defendant support
each element of that claim or cause of action." (bracketed material
in original).
3· The Order warned Plaintiff that, should he fail to re-plead his claims in
compliance with the Order, "then the claims alleged against Defendants in Plaintiffs
Original Petition, if any, shall be stricken from the record and Defendants dismissed
from the above-styled and -numbered cause without prejudice."
4· The deadline for Plaintiff to amend Plaintiffs Original Petition was
January 24, 2012. On January 24, 2012, Plaintiff filed his Plaintiffs Amended Petition.
A generous reading of Plaintiffs Amended Petition reveals allegations of fraud,
violations of the Real Estate Settlement Procedures Act, breach of contract, and a
contention that he is entitled to a return of all monies paid under a deed of trust because
various parties "have never been able to show the wet ink signature stating that they are
in fact the holder in due course." Plaintiffs Amended Petition is substantially similar to
Plaintiffs Original Petition as well as Plaintiffs other various pleadings on file with the
Court in this cause. Plaintiffs Amended Petition does not comply with the Order
DEFENDANTS' MOTION TO DISMISS PAGE2
because Plaintiff has once again failed to identify specific acts or omissions, allegedly
committed by individual, identified Defendants, which support the elements of his
claims and causes of action, if any.
II.
Arguments & Authorities
5· Parties may challenge the sufficiency of the opposition's pleading by
requesting special exceptions. TEX. R. Crv. P. 91. The purpose of special exceptions is to
"force clarification and specification in the pleadings, when they are not clear or
sufficiently specific." Patillo v. City of San Antonio ex rei. San Antonio Water Sys., 161
S.W.3d 6oS, 611 (Tex. App.-San Antonio 2005, pet. denied) citing Hefley v. Sentry Ins.
Co., 131 S.W.3d 63, 65 (Tex. App.-San Antonio 2003, pet. denied). When a trial court
sustains special exceptions, the pleading party must amend his or her pleading to meet
the exceptions. Muecke v. Hallstead, 25 S.W.3d 221, 223-24 (Tex. App.-San Antonio
2000, no pet.); Cole v. Hall, 864 S.W.2d 563, 566 (Tex. App.-Dallas 1993, writ dism'd
w.o.j.). When the pleader fails or refuses to amend the pleading, the trial court may
strike the pleading and, if appropriate, dismiss the case. Cole, 864 S.W.2d at 566; Holt
v. Reproductive Servs., Inc., 946 S.W.2d 602, 604 (Tex. App.-Corpus Christi 1997, pet.
denied).
6. In this case, the Court sustained Defendants' special exceptions to the
entirety of Plaintiffs Original Petition, in part, for the reason that it failed to allege any
identifiable causes of action against Defendants. The Order specifically identified the
actions Plaintiff was required to take to meet the exceptions and warned that, if he failed
and/or refused to do so in the time and manner specified therein, Plaintiffs Original
Petition may be stricken and his claims may be dismissed. Because Plaintiff has wholly
DEFENDANTS' MOTION TO DISMISS PAGE3
failed and refused to comply with the Order, this Court should strike Plaintiffs Original
Petition and Plaintiffs Amended Petition and dismiss his claims against Defendants.
III.
Prayer
WHEREFORE, premises considered, Defendants respectfully request that this
Honorable Court enter an order striking Plaintiffs Original Petition and Plaintiffs
Amended Petition and dismissing his claims against Defendants and that Defendants be
awarded any and all relief to which they may show themselves justly entitled, including
an award of attorneys' fees and costs of court.
Respectfully submitted,
MARis & LANIER, P.C.
Robert F. Maris
State Bar No. 12986300
Matthew W. Lindsey
State Bar No. 24071893
3710 Rawlins Street, Suite 1550
Dallas, Texas 75219
214-706-0920 telephone
214-706-0921 facsimile
FEDERAL NATIONAL
MORTGAGE CORPORATION
A/K/ A FANNIE MAE, and all
Successors et al BARRETT
DAFFIN FRAPPIER TURNER &
ENGEL,LLP
DEFENDANTS' MOTION TO DISMISS PAGE4
•
CERTIFICATE OF SERVICE
This is to certify that a true, correct and complete copy of the foregoing document
has been served in accordance with Rule 21a of the Texas Rules of Civil Procedure on the
1st day of February, 2012 to:
Rodney Lee Wagner
702 Meadow Glen Drive
Duncanville, Texas 75137
VIA FIRST CLASS U.S. MAIL AND
VIA CERTIFIED MAIL RECEIPT
NO. 7008 3230 oooo 9605 9686
624.394\S:\robert\barrett\wagner\wagner 624.394a\pldgs\dismiss.mtn.docx
DEFENDANTS' MOTION TO DISMISS PAGE5
February 1, 2012
Judge John P. Chupp
141st Judicial District Court
200 East Weatherford Street
Fort Worth, Texas 76196-0230
Re: Rodney Lee Wagner vs. Fannie Mae and Barrett Daffin Frappier Turner &
Engel,LLP
Cause No. 141-256938-11 in the 141st Judicial District Court
Our File No. 624.394-A /Wagner
Dear Court Clerk:
Enclosed please find the original and one (1) copy of the Defendants' Motion to Dismiss
in the above referenced case.
Please file the original and return a file-marked copy back to me via the self-addressed
stamped envelope provided herein.
Should you have any other questions, comments, or concerns I can be reached at the
below referenced number. Thank you for your time and attention to this matter.
Sincerely,
6&-P~
Celia Preciado Anguiano
Legal Assistant to Matthew W. Lindsey
MARIS & LANIER, P.C.
Enclosure
-1 ......
cc: Rodney Lee Wagner :r: =
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702 Meadow Glen Drive (n~A, ,...,
Duncanville, Texas 75137
VIA FIRST CLASS U.S. MAIL AND
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VIA CERTIFIED MAIL RECEIPT ("'>' "'0
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3710 RAWLINS STREET • SUITE 1550 • DALLAS, TEXAS 75219 • TEL: 214.706.0920 • FAX: 214.706.0921
February 1, 2012
Judge John P. Chupp
141st Judicial District Court
200 East Weatherford Street
Fort Worth, Texas 76196-0230
Re: Rodney Lee Wagner vs. Bank ofAmerica Home Loans Servicing, LP, et al.
Cause No. 141-256210-11 in the 141st Judicial District Court
Our File No. 624.394/Wagner
Dear Court Clerk:
Enclosed please find the original and one (1) copy of the following documents in the
above referenced case:
1. Defendants Barrett Daffin Frappier Turner & Engel, LLP, T. Bastian, J. Clark, R. Frank,
T. Ross and A. Holland's Motion to Dismiss; and
2. Defendants Bank of America Home Loans Servicing, LP, BAC Home Loan Servicing,
Countrywide Bank, FSB, Mortgage Electronic Registration Systems, Inc. And Federal
National Mortgage Association's Amended Special Exceptions.
Please file the original and return a file-marked copy back to me via the self-addressed
stamped envelope provided herein.
Should you have any other questions, comments, or concerns I can be reached at the
below referenced number. Thank you for your time and attention to this matter.
Sincerely,
Wia.J~~
Celia Preciado Anguiano ~ ~
Legal Assistant to Matthew ~:tind~
MARIS & LANIER, P.C. :;j ::t:o··o:c
- (./) I
~)> w
Enclosures C'") • -o
~~ :X
rn_
cc: Rodney Lee Wagner ""r-
;:r; Cl
-N .~
702 Meadow Glen Drive rr1 CD
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Duncanville, Texas 75137 :::0
VIA FIRST CLASS U.S. MAIL AND
VIA CERTIFIED MAIL RECEIPT
NO. 7008 3230 oooo 9605 9686
(w/encl.)
3710 RAWLINS STREET • SUITE 1550 • DALLAS, TEXAS 75219 • TEL: 214.706.0920 • FAX: 214.706.0921
FILED
TARRANT cou;n ,
2012 FEB -3 PH I: 26
THOI1AS A. WILDER
DISTRICT CLERK
Preview
OR\G\NAL CAUSE NO. 141-256938-11 RODNEYL WAGNER, § § Plaintiff, § § v. § § FEDERAL NATIONAL MORTGAGE § CORPORATION A/K/AFANNIE § MAE, and all Successors et al § BARRETT DAFFIN FRAPPIER § TURNER & ENGEL, LLP, § § Defendants. § TARRANT COUNTY, TEXAS DEFENDANTS' MOTION TO DISMISS TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Defendants Federal National Mortgage Corporation ajkja Fannie Mae, and all Successors et al ("Fannie Mae") and Barrett Daffin Frappier Turner & Engel, LLP ("BDFTE") (collectively "Defendants") and file this motion to dismiss the Petitioner's Original Petition and Application for Temporary Restraining Order and Temporary Injunction supported by affidavit ("Plaintiffs Original Petition") and the Verified Amended Pleading Supported by Affidavit ("Plaintiffs Amended Petition") filed by Plaintiff Rodney L. Wagner ("Plaintiff') against Defendants. In support thereof, Defendants respectfully show this Honorable court the following: I. Facts Relevant to Motion 1. On December 13, 2011, Plaintiff filed his Plaintiffs Original Petition. Defendants answered and specially excepted to Plaintiffs Original Petition. On January 4, 2012, after a hearing in which Defendants' special exceptions were sustained, this Court entered an Order on Defendants' Special Exceptions (the "Order"). Pursuant to DEFENDANTS' MOTION TO DISMISS PAGEl j • Wtl)l1 11\l:llSIO t\3011 M''9 S'lf\40\11 92:\ 'rld t-S3HIOZ the Order, Plaintiff was required to re-plead Plaintiffs Original Petition within twenty (20) days from the date of the Order. 2. Specifically, the Order required Plaintiff to amend his pleading, with respect to Defendants as follows: "(1) for each claim or cause of action Plaintiff intends to assert as an affirmative claim for relief against Defendants, Plaintiff shall clearly identify that claim or cause of action and that the claim or cause of action is being asserted against Defendants at the beginning of a paragraph or paragraphs devoted to that claim or cause of action by stating, by way of example, Plaintiff sues [name of individual Defendant] for [name of claim or cause of action]; and (2) in the paragraph or paragraphs devoted to each claim or cause of action described in subparagraph (1), above, Plaintiff shall identify the acts or omissions attributable to each individual Defendant support each element of that claim or cause of action." (bracketed material in original). 3· The Order warned Plaintiff that, should he fail to re-plead his claims in compliance with the Order, "then the claims alleged against Defendants in Plaintiffs Original Petition, if any, shall be stricken from the record and Defendants dismissed from the above-styled and -numbered cause without prejudice." 4· The deadline for Plaintiff to amend Plaintiffs Original Petition was January 24, 2012. On January 24, 2012, Plaintiff filed his Plaintiffs Amended Petition. A generous reading of Plaintiffs Amended Petition reveals allegations of fraud, violations of the Real Estate Settlement Procedures Act, breach of contract, and a contention that he is entitled to a return of all monies paid under a deed of trust because various parties "have never been able to show the wet ink signature stating that they are in fact the holder in due course." Plaintiffs Amended Petition is substantially similar to Plaintiffs Original Petition as well as Plaintiffs other various pleadings on file with the Court in this cause. Plaintiffs Amended Petition does not comply with the Order DEFENDANTS' MOTION TO DISMISS PAGE2 because Plaintiff has once again failed to identify specific acts or omissions, allegedly committed by individual, identified Defendants, which support the elements of his claims and causes of action, if any. II. Arguments & Authorities 5· Parties may challenge the sufficiency of the opposition's pleading by requesting special exceptions. TEX. R. Crv. P. 91. The purpose of special exceptions is to "force clarification and specification in the pleadings, when they are not clear or sufficiently specific." Patillo v. City of San Antonio ex rei. San Antonio Water Sys., 161 S.W.3d 6oS, 611 (Tex. App.-San Antonio 2005, pet. denied) citing Hefley v. Sentry Ins. Co., 131 S.W.3d 63, 65 (Tex. App.-San Antonio 2003, pet. denied). When a trial court sustains special exceptions, the pleading party must amend his or her pleading to meet the exceptions. Muecke v. Hallstead, 25 S.W.3d 221, 223-24 (Tex. App.-San Antonio 2000, no pet.); Cole v. Hall, 864 S.W.2d 563, 566 (Tex. App.-Dallas 1993, writ dism'd w.o.j.). When the pleader fails or refuses to amend the pleading, the trial court may strike the pleading and, if appropriate, dismiss the case. Cole, 864 S.W.2d at 566; Holt v. Reproductive Servs., Inc., 946 S.W.2d 602, 604 (Tex. App.-Corpus Christi 1997, pet. denied). 6. In this case, the Court sustained Defendants' special exceptions to the entirety of Plaintiffs Original Petition, in part, for the reason that it failed to allege any identifiable causes of action against Defendants. The Order specifically identified the actions Plaintiff was required to take to meet the exceptions and warned that, if he failed and/or refused to do so in the time and manner specified therein, Plaintiffs Original Petition may be stricken and his claims may be dismissed. Because Plaintiff has wholly DEFENDANTS' MOTION TO DISMISS PAGE3 failed and refused to comply with the Order, this Court should strike Plaintiffs Original Petition and Plaintiffs Amended Petition and dismiss his claims against Defendants. III. Prayer WHEREFORE, premises considered, Defendants respectfully request that this Honorable Court enter an order striking Plaintiffs Original Petition and Plaintiffs Amended Petition and dismissing his claims against Defendants and that Defendants be awarded any and all relief to which they may show themselves justly entitled, including an award of attorneys' fees and costs of court. Respectfully submitted, MARis & LANIER, P.C. Robert F. Maris State Bar No. 12986300 Matthew W. Lindsey State Bar No. 24071893 3710 Rawlins Street, Suite 1550 Dallas, Texas 75219 214-706-0920 telephone 214-706-0921 facsimile FEDERAL NATIONAL MORTGAGE CORPORATION A/K/ A FANNIE MAE, and all Successors et al BARRETT DAFFIN FRAPPIER TURNER & ENGEL,LLP DEFENDANTS' MOTION TO DISMISS PAGE4 • CERTIFICATE OF SERVICE This is to certify that a true, correct and complete copy of the foregoing document has been served in accordance with Rule 21a of the Texas Rules of Civil Procedure on the 1st day of February, 2012 to: Rodney Lee Wagner 702 Meadow Glen Drive Duncanville, Texas 75137 VIA FIRST CLASS U.S. MAIL AND VIA CERTIFIED MAIL RECEIPT NO. 7008 3230 oooo 9605 9686 624.394\S:\robert\barrett\wagner\wagner 624.394a\pldgs\dismiss.mtn.docx DEFENDANTS' MOTION TO DISMISS PAGE5 February 1, 2012 Judge John P. Chupp 141st Judicial District Court 200 East Weatherford Street Fort Worth, Texas 76196-0230 Re: Rodney Lee Wagner vs. Fannie Mae and Barrett Daffin Frappier Turner & Engel,LLP Cause No. 141-256938-11 in the 141st Judicial District Court Our File No. 624.394-A /Wagner Dear Court Clerk: Enclosed please find the original and one (1) copy of the Defendants' Motion to Dismiss in the above referenced case. Please file the original and return a file-marked copy back to me via the self-addressed stamped envelope provided herein. Should you have any other questions, comments, or concerns I can be reached at the below referenced number. Thank you for your time and attention to this matter. Sincerely, 6&-P~ Celia Preciado Anguiano Legal Assistant to Matthew W. Lindsey MARIS & LANIER, P.C. Enclosure -1 ...... cc: Rodney Lee Wagner :r: = o- 0 ...... ..., 702 Meadow Glen Drive (n~A, ,..., Duncanville, Texas 75137 VIA FIRST CLASS U.S. MAIL AND -<:P' :'£(./) =I ("))::> ..... ' w VIA CERTIFIED MAIL RECEIPT ("'>' "'0 NO. 7008 3230 oooo 9605 9686 r--c-" ::1: (w/encl.) ~~ -.. ;xl CJ N 1'"'1 (XI :::0 3710 RAWLINS STREET • SUITE 1550 • DALLAS, TEXAS 75219 • TEL: 214.706.0920 • FAX: 214.706.0921 February 1, 2012 Judge John P. Chupp 141st Judicial District Court 200 East Weatherford Street Fort Worth, Texas 76196-0230 Re: Rodney Lee Wagner vs. Bank ofAmerica Home Loans Servicing, LP, et al. Cause No. 141-256210-11 in the 141st Judicial District Court Our File No. 624.394/Wagner Dear Court Clerk: Enclosed please find the original and one (1) copy of the following documents in the above referenced case: 1. Defendants Barrett Daffin Frappier Turner & Engel, LLP, T. Bastian, J. Clark, R. Frank, T. Ross and A. Holland's Motion to Dismiss; and 2. Defendants Bank of America Home Loans Servicing, LP, BAC Home Loan Servicing, Countrywide Bank, FSB, Mortgage Electronic Registration Systems, Inc. And Federal National Mortgage Association's Amended Special Exceptions. Please file the original and return a file-marked copy back to me via the self-addressed stamped envelope provided herein. Should you have any other questions, comments, or concerns I can be reached at the below referenced number. Thank you for your time and attention to this matter. Sincerely, Wia.J~~ Celia Preciado Anguiano ~ ~ Legal Assistant to Matthew ~:tind~ MARIS & LANIER, P.C. :;j ::t:o··o:c - (./) I ~)> w Enclosures C'") • -o ~~ :X rn_ cc: Rodney Lee Wagner ""r- ;:r; Cl -N .~ 702 Meadow Glen Drive rr1 CD •. -~ Duncanville, Texas 75137 :::0 VIA FIRST CLASS U.S. MAIL AND VIA CERTIFIED MAIL RECEIPT NO. 7008 3230 oooo 9605 9686 (w/encl.) 3710 RAWLINS STREET • SUITE 1550 • DALLAS, TEXAS 75219 • TEL: 214.706.0920 • FAX: 214.706.0921 FILED TARRANT cou;n , 2012 FEB -3 PH I: 26 THOI1AS A. WILDER DISTRICT CLERK