Preview
FILED
DALLAS COUNTY
6/4/2019 9:32AM
FELICIA PITRE
DISTRICT CLERK
Kevin Molden
CAUSE NO. DC-19-07229
FARON J DAVIS A/K/A TTEE § IN THE DISTRICT COURT
§
VS. § DALLAS COUNTY, TEXAS
§
ADVANCIAL FEDERAL CREDIT UNION §
ANDREW TOMALIN, CFO § 162ND JUDICIAL DISTRICT
DEFENDANT’S MOTION TO DISMISS
UNDER TEX. R. CIV. P. 91a
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Defendant, Advancial Federal Credit Union (incorrectly named as
“Advancial Federal Credit Union Andrew Tomalin, CFO”), and files this Motion to
Dismiss Pursuant to Tex. R. Civ. P. 91a, and in support hereof, would respectfully show
the Court as follows:
Summary of Motion
1. Plaintiff Faron J Davis a/k/a TTEE filed this action on May 22, 2019.
2. Plaintiff files this motion under Texas Rule of Civil Procedure 91a.
Plaintiff’s Petition does not contain legal or factual allegations that would support any
cognizable cause of action against Defendant.
Standard for Rule 91a Dismissal
3. Texas Rule of Civil Procedure 91a requires dismissal of claims that have
“no basis in law or fact.” TEX. R. CIV. P. 91a.1. “A cause of action has no basis in law if
the allegations, taken as true, together with inferences reasonably drawn from them, do
not entitle the claimant to the relief sought. A cause of action has no basis in fact if no
reasonable person could believe the facts pleaded.” Id.
DEFENDANT’S MOTION TO DISMISS UNDER TEX. R. CIV. P. 91a Page 1
Causes of Action Subject to This Motion
4. Defendant moves to dismiss Plaintiff’s sole asserted cause of action for
“Habeas Corpus.”
Arguments and Authorities
5. Habeas corpus is a writ of right that lieswhen one is restrained of liberty in
connection with a criminal charge. 38 Tex.Jur.3d §22. Habeas Corpus is codified at
Texas Code of Criminal Procedure § 11.07.
6. With respect to the allegations contained within the four corners of
Plaintiff’s Petition for Verification and Validation of Debt and Release of Claim,
Defendant would show:
o The Federal statute cited by Plaintiff (“USC Title 18, Part 1, Chapter 101,
§2071”), is a criminal statute pertaining to concealment, removal, or
mutilation of documents filed with United States courts or public offices.
See 18 U.S.C. §2071.
o Plaintiff neither attaches the Promissory Note or loan/security instrument
referenced in his pleading, nor does he identify a factual or legal basis to
support his request for a “proof of claim” or affidavit from Defendant.
o Plaintiff’s action does not even appear to be ripe, as Plaintiff requests the
“proof of claim” to evidence “standing in any future controversy.”
7. Plaintiff’s pleading is devoid of any legal or factual basis for a cause of
action against Defendant and should be dismissed pursuant to Texas Rule of Civil
Procedure 91a.
DEFENDANT’S MOTION TO DISMISS UNDER TEX. R. CIV. P. 91a Page 2
Attorneys’ Fees
8. Pursuant to Rule 91a of the Texas Rules of Civil Procedure, “the court
must award the prevailing party on the motion all costs and reasonable and necessary
attorney fees incurred with respect to the challenged cause of action in the trial court,”
and “must consider evidence regarding costs and fees in determining the award.” TEX.
R. CIV. P. 913.7. Defendant has incurred costs and attorneys’ fees in challenging
Plaintiff’s baseless pleading, and ifthis Motion is grated, Defendant seeks to recover all
reasonable and necessary attorneys’ fees to which it is entitled. Defendant seeks
additional reasonable attorneys’ fees should Plaintiff unsuccessfully appeal the
Dismissal. As evidence of its reasonable and necessary attorneys’ fees incurred,
Defendants offer the Affidavit of Nicholas Bettinger regarding Attorneys’ Fees, which is
attached hereto as Exhibit A and incorporated herein by reference.
WHEREFORE, PREMISES CONSIDERED, Defendant Advancial Federal Credit
Union (incorrectly named as “Advancial Federal Credit Union Andrew Tomalin, CFO”)
prays that the Court (1) grant this Motion and dismiss with prejudice all claims and
causes of action brought herein by Plaintiff, (2) award Defendant attorneys’ fees and
court costs through the granting of this Motion, along with additional attorneys’ fees
should Plaintiff unsuccessfully appeal the dismissal, and (3) such other and further
relief, both general and specific, at law or in equity, to which Defendant may be justly
enfifled.
DEFENDANT’S MOTION TO DISMISS UNDER TEX. R. CIV. P. 91a Page 3
Respectfully submitted,
MCDONALD SANDERS,
A Professional Corporation
By: /s/ Nicholas Bettinqer
Nicholas S. Bettinger
State Bar No. 02268470
nickb@mcdonaldlaw.com
777 Main Street, Suite 1300
Fort Worth, Texas 76102
(81 7) 336-8651
(817) 334-0271 Fax
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
| certify that on June 4, 2019, | e-served the foregoing document as required by
Tex. R. Civ. P. 21a(a)(1) or (2).
/s/ Nicholas Bettinqer
DEFENDANT’S MOTION TO DISMISS UNDER TEX. R. CIV. P. 91a Page 4
EXHIBIT A
CAUSE NO. DC-1 9—07229
FARON J DAVIS A/K/A TTEE IN THE DISTRICT COURT
VS. WWWWW‘JW
DALLAS COUNTY, TEXAS
ADVANCIAL FEDERAL CREDIT UNION
ANDREW TOMALIN, CFO 162ND JUDICIAL DISTRICT
AFFIDAVIT REGARDING ATTORflEY'S FEES
STATE OF TEXAS §
§
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, on this day personally appeared
Nicholas Bettinger, who after being duly sworn, upon his oath, deposed and stated as
follows:
1. My name is Nicholas Bettinger. lam an attorney with the law firm of McDonald
Sanders, A Professional Corporation, of Fort Worth, Texas. I am over the age of
21 years, of sound mind and a resident of Tarrant County, Texas. lam capable
of making this Affidavit and have personal knowledge of all the matters stated
herein and know each of them to be true and correct. I am an attorney duly
licensed to practice law in the State of Texas since November 1, 1991, and have
practiced law in Tarrant County, Texas, since that date. | am familiar with the
fees and rates charged by attorneys in Tarrant County.
Defendant, Advancial Federal Credit Union, retained the law firm of McDonald
Sanders, A Professional Corporation, to represent it in the above—referenced
matter. | have performed services on behalf of Defendant including, but not
limited to, reviewing Plaintiff’s pleading, research and drafting of Defendant’s
Motion to Dismiss under to Rule 91a, and I have drafted this Affidavit Regarding
Attorney's Fees. Finally, | will have to attend the hearing on Defendants’ Motion
to Dismiss.
| will have worked approximately six (6) hours on this case through the hearing
referenced above. My billing rate is $425.00 per hour. Defendant requests that
the Court grant it recovery of attorney's fees in the amount of $2,550.00 for work
performed on this matter.
Defendant request that the Court grant it recovery of these attorney's fees as
stated herein. These fees are the usual, reasonable, and customary fees for the
legal services performed and to be performed in this matter in Dallas County,
Texas. The services performed and to be performed are also necessary for a
case of this nature.
AFFIDAVIT REGARDING ATTORNEY'S FEES
5. Ifthe Motion to Dismiss is granted and Plaintiff appeals the dismissal to the Court
of Appeals, and should Defendant prevail on that appeal, Defendant requests
that the Court grant it recovery of attorney's fees incurred for the work performed
on that appeal. |believe a reasonable, usual and customary fee for the services
that will need to be performed on behalf of Defendant to prosecute the appeal to
the Court of Appeals is $12,500.00.
6. Additionally, in the event that Plaintiff continues to appeal the dismissal by filing a
Petition for Review to the Texas Supreme Court, Defendant requests that the
Court grant it recovery of attorney's fees incurred for the work performed on that
appeal in the event that a Petition for Review is granted and Defendant prevails
on appeal. l believe the reasonable, usual, and customary fee for the services
that will need to be performed on behalf of Defendant will be $25,000.00.
FURTHER, AFFIANT SAITH NAUGHT.
fli/fmz'
Nicholas BetTinger
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned Notary Public in
and for the State of Texas, by the said Nicholas on this the 4‘“ day of June,
‘Bettinger
2019, to certify which witness my hand and
Nota Public, State of Texas
AFFIDAVIT REGARDING ATTORNEY'S FEES
Preview
FILED DALLAS COUNTY 6/4/2019 9:32AM FELICIA PITRE DISTRICT CLERK Kevin Molden CAUSE NO. DC-19-07229 FARON J DAVIS A/K/A TTEE § IN THE DISTRICT COURT § VS. § DALLAS COUNTY, TEXAS § ADVANCIAL FEDERAL CREDIT UNION § ANDREW TOMALIN, CFO § 162ND JUDICIAL DISTRICT DEFENDANT’S MOTION TO DISMISS UNDER TEX. R. CIV. P. 91a TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Defendant, Advancial Federal Credit Union (incorrectly named as “Advancial Federal Credit Union Andrew Tomalin, CFO”), and files this Motion to Dismiss Pursuant to Tex. R. Civ. P. 91a, and in support hereof, would respectfully show the Court as follows: Summary of Motion 1. Plaintiff Faron J Davis a/k/a TTEE filed this action on May 22, 2019. 2. Plaintiff files this motion under Texas Rule of Civil Procedure 91a. Plaintiff’s Petition does not contain legal or factual allegations that would support any cognizable cause of action against Defendant. Standard for Rule 91a Dismissal 3. Texas Rule of Civil Procedure 91a requires dismissal of claims that have “no basis in law or fact.” TEX. R. CIV. P. 91a.1. “A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.” Id. DEFENDANT’S MOTION TO DISMISS UNDER TEX. R. CIV. P. 91a Page 1 Causes of Action Subject to This Motion 4. Defendant moves to dismiss Plaintiff’s sole asserted cause of action for “Habeas Corpus.” Arguments and Authorities 5. Habeas corpus is a writ of right that lieswhen one is restrained of liberty in connection with a criminal charge. 38 Tex.Jur.3d §22. Habeas Corpus is codified at Texas Code of Criminal Procedure § 11.07. 6. With respect to the allegations contained within the four corners of Plaintiff’s Petition for Verification and Validation of Debt and Release of Claim, Defendant would show: o The Federal statute cited by Plaintiff (“USC Title 18, Part 1, Chapter 101, §2071”), is a criminal statute pertaining to concealment, removal, or mutilation of documents filed with United States courts or public offices. See 18 U.S.C. §2071. o Plaintiff neither attaches the Promissory Note or loan/security instrument referenced in his pleading, nor does he identify a factual or legal basis to support his request for a “proof of claim” or affidavit from Defendant. o Plaintiff’s action does not even appear to be ripe, as Plaintiff requests the “proof of claim” to evidence “standing in any future controversy.” 7. Plaintiff’s pleading is devoid of any legal or factual basis for a cause of action against Defendant and should be dismissed pursuant to Texas Rule of Civil Procedure 91a. DEFENDANT’S MOTION TO DISMISS UNDER TEX. R. CIV. P. 91a Page 2 Attorneys’ Fees 8. Pursuant to Rule 91a of the Texas Rules of Civil Procedure, “the court must award the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court,” and “must consider evidence regarding costs and fees in determining the award.” TEX. R. CIV. P. 913.7. Defendant has incurred costs and attorneys’ fees in challenging Plaintiff’s baseless pleading, and ifthis Motion is grated, Defendant seeks to recover all reasonable and necessary attorneys’ fees to which it is entitled. Defendant seeks additional reasonable attorneys’ fees should Plaintiff unsuccessfully appeal the Dismissal. As evidence of its reasonable and necessary attorneys’ fees incurred, Defendants offer the Affidavit of Nicholas Bettinger regarding Attorneys’ Fees, which is attached hereto as Exhibit A and incorporated herein by reference. WHEREFORE, PREMISES CONSIDERED, Defendant Advancial Federal Credit Union (incorrectly named as “Advancial Federal Credit Union Andrew Tomalin, CFO”) prays that the Court (1) grant this Motion and dismiss with prejudice all claims and causes of action brought herein by Plaintiff, (2) award Defendant attorneys’ fees and court costs through the granting of this Motion, along with additional attorneys’ fees should Plaintiff unsuccessfully appeal the dismissal, and (3) such other and further relief, both general and specific, at law or in equity, to which Defendant may be justly enfifled. DEFENDANT’S MOTION TO DISMISS UNDER TEX. R. CIV. P. 91a Page 3 Respectfully submitted, MCDONALD SANDERS, A Professional Corporation By: /s/ Nicholas Bettinqer Nicholas S. Bettinger State Bar No. 02268470 nickb@mcdonaldlaw.com 777 Main Street, Suite 1300 Fort Worth, Texas 76102 (81 7) 336-8651 (817) 334-0271 Fax ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE | certify that on June 4, 2019, | e-served the foregoing document as required by Tex. R. Civ. P. 21a(a)(1) or (2). /s/ Nicholas Bettinqer DEFENDANT’S MOTION TO DISMISS UNDER TEX. R. CIV. P. 91a Page 4 EXHIBIT A CAUSE NO. DC-1 9—07229 FARON J DAVIS A/K/A TTEE IN THE DISTRICT COURT VS. WWWWW‘JW DALLAS COUNTY, TEXAS ADVANCIAL FEDERAL CREDIT UNION ANDREW TOMALIN, CFO 162ND JUDICIAL DISTRICT AFFIDAVIT REGARDING ATTORflEY'S FEES STATE OF TEXAS § § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared Nicholas Bettinger, who after being duly sworn, upon his oath, deposed and stated as follows: 1. My name is Nicholas Bettinger. lam an attorney with the law firm of McDonald Sanders, A Professional Corporation, of Fort Worth, Texas. I am over the age of 21 years, of sound mind and a resident of Tarrant County, Texas. lam capable of making this Affidavit and have personal knowledge of all the matters stated herein and know each of them to be true and correct. I am an attorney duly licensed to practice law in the State of Texas since November 1, 1991, and have practiced law in Tarrant County, Texas, since that date. | am familiar with the fees and rates charged by attorneys in Tarrant County. Defendant, Advancial Federal Credit Union, retained the law firm of McDonald Sanders, A Professional Corporation, to represent it in the above—referenced matter. | have performed services on behalf of Defendant including, but not limited to, reviewing Plaintiff’s pleading, research and drafting of Defendant’s Motion to Dismiss under to Rule 91a, and I have drafted this Affidavit Regarding Attorney's Fees. Finally, | will have to attend the hearing on Defendants’ Motion to Dismiss. | will have worked approximately six (6) hours on this case through the hearing referenced above. My billing rate is $425.00 per hour. Defendant requests that the Court grant it recovery of attorney's fees in the amount of $2,550.00 for work performed on this matter. Defendant request that the Court grant it recovery of these attorney's fees as stated herein. These fees are the usual, reasonable, and customary fees for the legal services performed and to be performed in this matter in Dallas County, Texas. The services performed and to be performed are also necessary for a case of this nature. AFFIDAVIT REGARDING ATTORNEY'S FEES 5. Ifthe Motion to Dismiss is granted and Plaintiff appeals the dismissal to the Court of Appeals, and should Defendant prevail on that appeal, Defendant requests that the Court grant it recovery of attorney's fees incurred for the work performed on that appeal. |believe a reasonable, usual and customary fee for the services that will need to be performed on behalf of Defendant to prosecute the appeal to the Court of Appeals is $12,500.00. 6. Additionally, in the event that Plaintiff continues to appeal the dismissal by filing a Petition for Review to the Texas Supreme Court, Defendant requests that the Court grant it recovery of attorney's fees incurred for the work performed on that appeal in the event that a Petition for Review is granted and Defendant prevails on appeal. l believe the reasonable, usual, and customary fee for the services that will need to be performed on behalf of Defendant will be $25,000.00. FURTHER, AFFIANT SAITH NAUGHT. fli/fmz' Nicholas BetTinger SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned Notary Public in and for the State of Texas, by the said Nicholas on this the 4‘“ day of June, ‘Bettinger 2019, to certify which witness my hand and Nota Public, State of Texas AFFIDAVIT REGARDING ATTORNEY'S FEES