Preview
“NF cuderen ey C,
2
District Cte anlioe D
CAUSE NO. 2006-78064
i
A
vis coi, 8
FEDERAL HOME LOAN
MORTGAGE CORPORATION IN THE DISTRICT COURT
Plaintiff
v. 151ST JUDICIAL DISTRICT
GREGORY J. MONTELARO AND
STEVEN MATTHEW DEKKER HARRIS COUNTY, TEXAS
Defendants
DEFENDANT DEKKER’S MOTION TO DISMISS FOR
FAILURE TO STATE A CAUSE OF ACTION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW STEVEN MATTHEW DEKKER (“Dekker”), Defendant / Counter-
Plaintiff in this matter, and files this Motion to Dismiss based on the Plaintiff's failure to state a
cause of action and in support thereof, Defendant would respectfully show the Court the
following:
&L
Dekker filed Special Exceptions to Plaintiff's Original Petition which gave the Plaintiff a
tight to amend their petition. Massey v. Armco Steel Co., 652 S.W.2d at 934 (Texas 1983). When
a defendant files special exceptions giving the plaintiff the right to amend, the plaintiff has two
options: Either amend the pleading to cure the defect; or refuse to amend. Hubler v. City of
Corpus Christi, 564 S.W.2d 816, 823 (Tex.App.-Corpus Christi 1978, writ ref'd n.r.e.). The
Defendant secured a hearing on the special exceptions. Brooks v. Housing Auth., 926 S.W.2d
316, 322 (Tex.App.-El Paso 1996, no writ). At the hearing on special exceptions on April 2,
2007, the Plaintiff filed an amended petition and stated on the record in open court that there
was no need to have a hearing on Defendant’s special exceptions in that the Plaintiff had
RECORDER’ 'S MEMORA
instrument is of Poor ND UM
quality
at the timeof |
— Imaging
a
~~ ~
amended their Original Petition and included in their Amended Petition everything asked for in
the Defendant’s special exceptions.
The Plaintiff's Amended Petition is practically identical to their original petition. They
simply changed the order of their four declaratory requests leaving the wording identical to their
original. They supplied none of the specifics required by the Defendant’s special exceptions.
If the Plaintiff amends but does not cure the defect, or refuses to amend, the Trial Court
may dismiss the case and the Plaintiff may test the Trial Court’s ruling on appeal. Hubler, 564
S.W.2d 816, 823.
0.
x
The Plaintiff's amended petition added a Trespass to Try Title cause in response to the
Defendant’s plea to the jurisdiction and motion to dismiss for lack of jurisdiction. Plaintiff stated
on the record and in open court that amending to add a cause of Trespass to Try Title
effectively answered the Defendant’s question of jurisdiction. While such an amendment may
have answered the question of jurisdiction, it failed to answer to the Defendant’s question of
standing; itself a fatal defect unanswered by the Plaintiff's amended pleading.
In Martin v, Amerman, 133 S.W.3d 262 (Tex 2004), the Supreme Court stated that “[w]e
conclude, as did the court of appeals, that the trespass-to-try-title statute governs the parties’
substantive claims in this case. The statute expressly provides that it is “the method for
determining title to . . . real property.” TEX. PROP. CODE § 22.001(a) (emphasis added), see Ely
v. Briley, 959 S.W.2d 723, 727 (Tex. App. — Austin 1998, no pet.); Kennesaw Life & Accid. Ins.
Co. v. Goss, 694 §.W.2d 115, 118 (Tex. App. — Houston [14th Dist.] 1985, writ ref'd n.r.e.). And
specifically addressing the Plaintiff's request for relief under the Declaratory Judgment Act, The
Court continued, “[mlore recently, in a case involving determination of a shoreline boundary, we
properly termed the issue one of title and rejected the notion that declaratory relief was also
available under the Declaratory Judgments Act:
ay “oN
{T]he dispute in the present case is over title, not an enactment, and the
Foundation’s claim for declaratory relief [locating the shoreline boundary] is
merely incidental to the title issues. In such circumstances, the Act does not
authorize an award of attomey fees against the State. John G. & Marie Stella
Kenedy Mem’l Found. v. Dewhurst, 90 S.W.3d 268, 289 (Tex. 2002).
We disapprove our statement to the contrary, albeit dicta, in Brainard. 12 S.W.3d at 29. To the
extent our courts of appeals have expressed a different view, we disapprove of those decisions.
See Goebel, 76 S.W.3d 652; see also Tarrant County v. Denton County, 87 S.W.3d 159 (Tex.
App. — Fort Worth 2002, pet. denied).” Thus the Plaintiff has no cause of action under the
Declaratory Judgment Act as that act does not confer jurisdiction on the Court nor provide a
foundation of standing for the plaintiff.
The protective features of the special exception procedure provide each pleader with the
right to attempt to cure any alleged defect. Texas Dep't of Corr. v. Herring, 513 S.W.2d 6, 10
(Tex. 1974). The Plaintiff filed their amended petition on April 2, 2007 and attempted to cure
the defect by adding a Trespass to Try Title cause. However, the defect of standing in this matter
is fatal.
On January 23, 2007, in violation of the Rule 11 agreement filed with this court to
maintain the status quo, the Plaintiff, acting through their agent Shad Bogany, illegally sold the
Defendant’s property. Texas Rule of Civil Procedure Rule 784 clearly states that the defendant
in a Trespass to Try Title action shall be the party in possession and Rule 784 defines standing for
the Plaintiff as having to have been in possession of the premises or entitled to such possession
and that the defendant unlawfully “entered upon and dispossessed him of such premises...and
withholds from him the possession thereof.”
The Plaintiff's illegal sale of the Defendant’s home in violation of the Rule 11 agreement
between all parties to maintain the status quo forever precluded their standing under the Trespass
to Try Title Act. Thus without an interest in the property, the Plaintiff has no interest in the
outcome of this suit. Standing for the Plaintiff then is a fatal defect that can not ever be cured.
CONCLUSION
The Plaintiff's arguments fail on all grounds. Plaintiff's original petition was fatally
defective. The Defendant filed special exceptions to the original petition thus invoking the
procedure that gave the Plaintiff the right to amend. The Plaintiff amended their Original Petition
and stated in open court and on the record that a hearing on the Defendant’s special exceptions
was unnecessary as their amended pleading answered all defects. However, the Plaintiff's
amended pleading made no attempt to cure the defects and simply added a Trespass to Try Title
action to cure the Defendant’s plea to the jurisdiction of the Court leaving the fatal defect of
standing unanswered.
The Plaintiff's own actions in violation of the Rule 11 agreement to maintain the status
quo have removed any interest they might have had in the property. Thus no justiciable
controversy exists between the parties.
PRAYER
WHEREFORE, Defendant respectfully prays that this Court dismiss the Plaintiff for
their lack of standing to bring this matter. The Defendant further respectfully prays for any
further relief to which he might show himself justly entitled in the pemises.
Respectfully submitted,
6117 Stillman
Houston, Texas 77007
(713) 862-0945
(713) 456-2761 fax
April 20, 2007
?-% F. Citar eg
bu
Distr: tet Cy ‘A, iakigg BD
ib 2
APR
CAUSE NO. 2006-78064 Harr
‘iy,
FEDERAL HOME LOAN
MORTGAGE CORPORATION IN THE DISTRICT COURP#ty
Plaintiff
ve 151ST JUDICIAL DISTRICT
GREGORY J. MONTELARO AND
STEVEN MATTHEW DEKKER HARRIS COUNTY, TEXAS
Defendants
DEFENDANT DEKKER’S MOTION TO DISMISS FOR
FAILURE TO STATE A CAUSE OF ACTION
CERTIFICATE OF SERVICE
certify that on this date I sent a copy of the above captioned motion to the following parties by
facsimile transmission and/or first class mail on April 20, 2007.
Federal Home Loan Mortgage Corporation James David Hannah
c/o William Kee, I 915
D Knox
8410 Hwy 90-A, Suite 140 Houston, Texas 77007
Sugar Land, Texas 77478
(281) 313-5300 Memorial Park Mortgage I Inc.
(281) 313-5305 Facsimile Twila L. Grooms
8501 Katy Freeway, Suite 201
Houston, Texas 77024
Shadrick Bogany ERA Bogan:
4710 Bellaire Blvd, Suite 120 4710 Bellaire Blvd, Suite 120
Bellaire, Texas 77401 Bellaire, Texas 77401
Bank of America Texas American Title Company
c/o CT Corporation System CSC Lawyers INCO
350 N. St. Paul Street 701 Brazos Street, Suite 1050
Dallas, Texas 75201 Austin, TX 78701
ERA Franchise Systems Incorporated Mark Cady
CSC Lawyers INCO c/o Twila L. Grooms
701 Brazos Street, Suite 1050 8501 Katy Freeway, Suite 201
Austin, TX 78701 Houston, TX 77024
Steve Dekker, Pro Se
Preview
“NF cuderen ey C, 2 District Cte anlioe D CAUSE NO. 2006-78064 i A vis coi, 8 FEDERAL HOME LOAN MORTGAGE CORPORATION IN THE DISTRICT COURT Plaintiff v. 151ST JUDICIAL DISTRICT GREGORY J. MONTELARO AND STEVEN MATTHEW DEKKER HARRIS COUNTY, TEXAS Defendants DEFENDANT DEKKER’S MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW STEVEN MATTHEW DEKKER (“Dekker”), Defendant / Counter- Plaintiff in this matter, and files this Motion to Dismiss based on the Plaintiff's failure to state a cause of action and in support thereof, Defendant would respectfully show the Court the following: &L Dekker filed Special Exceptions to Plaintiff's Original Petition which gave the Plaintiff a tight to amend their petition. Massey v. Armco Steel Co., 652 S.W.2d at 934 (Texas 1983). When a defendant files special exceptions giving the plaintiff the right to amend, the plaintiff has two options: Either amend the pleading to cure the defect; or refuse to amend. Hubler v. City of Corpus Christi, 564 S.W.2d 816, 823 (Tex.App.-Corpus Christi 1978, writ ref'd n.r.e.). The Defendant secured a hearing on the special exceptions. Brooks v. Housing Auth., 926 S.W.2d 316, 322 (Tex.App.-El Paso 1996, no writ). At the hearing on special exceptions on April 2, 2007, the Plaintiff filed an amended petition and stated on the record in open court that there was no need to have a hearing on Defendant’s special exceptions in that the Plaintiff had RECORDER’ 'S MEMORA instrument is of Poor ND UM quality at the timeof | — Imaging a ~~ ~ amended their Original Petition and included in their Amended Petition everything asked for in the Defendant’s special exceptions. The Plaintiff's Amended Petition is practically identical to their original petition. They simply changed the order of their four declaratory requests leaving the wording identical to their original. They supplied none of the specifics required by the Defendant’s special exceptions. If the Plaintiff amends but does not cure the defect, or refuses to amend, the Trial Court may dismiss the case and the Plaintiff may test the Trial Court’s ruling on appeal. Hubler, 564 S.W.2d 816, 823. 0. x The Plaintiff's amended petition added a Trespass to Try Title cause in response to the Defendant’s plea to the jurisdiction and motion to dismiss for lack of jurisdiction. Plaintiff stated on the record and in open court that amending to add a cause of Trespass to Try Title effectively answered the Defendant’s question of jurisdiction. While such an amendment may have answered the question of jurisdiction, it failed to answer to the Defendant’s question of standing; itself a fatal defect unanswered by the Plaintiff's amended pleading. In Martin v, Amerman, 133 S.W.3d 262 (Tex 2004), the Supreme Court stated that “[w]e conclude, as did the court of appeals, that the trespass-to-try-title statute governs the parties’ substantive claims in this case. The statute expressly provides that it is “the method for determining title to . . . real property.” TEX. PROP. CODE § 22.001(a) (emphasis added), see Ely v. Briley, 959 S.W.2d 723, 727 (Tex. App. — Austin 1998, no pet.); Kennesaw Life & Accid. Ins. Co. v. Goss, 694 §.W.2d 115, 118 (Tex. App. — Houston [14th Dist.] 1985, writ ref'd n.r.e.). And specifically addressing the Plaintiff's request for relief under the Declaratory Judgment Act, The Court continued, “[mlore recently, in a case involving determination of a shoreline boundary, we properly termed the issue one of title and rejected the notion that declaratory relief was also available under the Declaratory Judgments Act: ay “oN {T]he dispute in the present case is over title, not an enactment, and the Foundation’s claim for declaratory relief [locating the shoreline boundary] is merely incidental to the title issues. In such circumstances, the Act does not authorize an award of attomey fees against the State. John G. & Marie Stella Kenedy Mem’l Found. v. Dewhurst, 90 S.W.3d 268, 289 (Tex. 2002). We disapprove our statement to the contrary, albeit dicta, in Brainard. 12 S.W.3d at 29. To the extent our courts of appeals have expressed a different view, we disapprove of those decisions. See Goebel, 76 S.W.3d 652; see also Tarrant County v. Denton County, 87 S.W.3d 159 (Tex. App. — Fort Worth 2002, pet. denied).” Thus the Plaintiff has no cause of action under the Declaratory Judgment Act as that act does not confer jurisdiction on the Court nor provide a foundation of standing for the plaintiff. The protective features of the special exception procedure provide each pleader with the right to attempt to cure any alleged defect. Texas Dep't of Corr. v. Herring, 513 S.W.2d 6, 10 (Tex. 1974). The Plaintiff filed their amended petition on April 2, 2007 and attempted to cure the defect by adding a Trespass to Try Title cause. However, the defect of standing in this matter is fatal. On January 23, 2007, in violation of the Rule 11 agreement filed with this court to maintain the status quo, the Plaintiff, acting through their agent Shad Bogany, illegally sold the Defendant’s property. Texas Rule of Civil Procedure Rule 784 clearly states that the defendant in a Trespass to Try Title action shall be the party in possession and Rule 784 defines standing for the Plaintiff as having to have been in possession of the premises or entitled to such possession and that the defendant unlawfully “entered upon and dispossessed him of such premises...and withholds from him the possession thereof.” The Plaintiff's illegal sale of the Defendant’s home in violation of the Rule 11 agreement between all parties to maintain the status quo forever precluded their standing under the Trespass to Try Title Act. Thus without an interest in the property, the Plaintiff has no interest in the outcome of this suit. Standing for the Plaintiff then is a fatal defect that can not ever be cured. CONCLUSION The Plaintiff's arguments fail on all grounds. Plaintiff's original petition was fatally defective. The Defendant filed special exceptions to the original petition thus invoking the procedure that gave the Plaintiff the right to amend. The Plaintiff amended their Original Petition and stated in open court and on the record that a hearing on the Defendant’s special exceptions was unnecessary as their amended pleading answered all defects. However, the Plaintiff's amended pleading made no attempt to cure the defects and simply added a Trespass to Try Title action to cure the Defendant’s plea to the jurisdiction of the Court leaving the fatal defect of standing unanswered. The Plaintiff's own actions in violation of the Rule 11 agreement to maintain the status quo have removed any interest they might have had in the property. Thus no justiciable controversy exists between the parties. PRAYER WHEREFORE, Defendant respectfully prays that this Court dismiss the Plaintiff for their lack of standing to bring this matter. The Defendant further respectfully prays for any further relief to which he might show himself justly entitled in the pemises. Respectfully submitted, 6117 Stillman Houston, Texas 77007 (713) 862-0945 (713) 456-2761 fax April 20, 2007 ?-% F. Citar eg bu Distr: tet Cy ‘A, iakigg BD ib 2 APR CAUSE NO. 2006-78064 Harr ‘iy, FEDERAL HOME LOAN MORTGAGE CORPORATION IN THE DISTRICT COURP#ty Plaintiff ve 151ST JUDICIAL DISTRICT GREGORY J. MONTELARO AND STEVEN MATTHEW DEKKER HARRIS COUNTY, TEXAS Defendants DEFENDANT DEKKER’S MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION CERTIFICATE OF SERVICE certify that on this date I sent a copy of the above captioned motion to the following parties by facsimile transmission and/or first class mail on April 20, 2007. Federal Home Loan Mortgage Corporation James David Hannah c/o William Kee, I 915 D Knox 8410 Hwy 90-A, Suite 140 Houston, Texas 77007 Sugar Land, Texas 77478 (281) 313-5300 Memorial Park Mortgage I Inc. (281) 313-5305 Facsimile Twila L. Grooms 8501 Katy Freeway, Suite 201 Houston, Texas 77024 Shadrick Bogany ERA Bogan: 4710 Bellaire Blvd, Suite 120 4710 Bellaire Blvd, Suite 120 Bellaire, Texas 77401 Bellaire, Texas 77401 Bank of America Texas American Title Company c/o CT Corporation System CSC Lawyers INCO 350 N. St. Paul Street 701 Brazos Street, Suite 1050 Dallas, Texas 75201 Austin, TX 78701 ERA Franchise Systems Incorporated Mark Cady CSC Lawyers INCO c/o Twila L. Grooms 701 Brazos Street, Suite 1050 8501 Katy Freeway, Suite 201 Austin, TX 78701 Houston, TX 77024 Steve Dekker, Pro Se