Preview
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Filed 13 November 13 A11:32
Chris Daniel - District Clerk
Harris Coun!
ED101) 017818702
By: Melissa cox
CAUSE NO, 2011-50763
SALVADOR RIVAS AND ALMA § IN THE DISTRICT COURT
SANTIAGO, HUSBAND AND WIFE, §
Plaintiffs,
Vv.
333"° JUDICIAL DISTRICT
U.S. BANK NATIONAL ASSOCIATION
AS TRUSTEE FOR MASTR ASSET
BACKED SECURITES TRUST 2007-HE2
AND AMERICAN HOME MORTGAGE
SERVICING, INC., §
§
Defendants. § HARRIS COUNTY, TEXAS
DEFENDANTS’ RESPONSE & OBJECTION TO
PLAINTIFFS’ MOTION TO REOPEN THE EVIDENCE
Defendants, U.S. Bank National Association as Trustee for Mastr Asset Backed
Securities Trust 2007-HE2 and American Home Mortgage Servicing, Inc. (“Defendants”), object
to and ask the Court to deny Plaintiffs’ Motion to Reopen the Evidence (“Motion to Reopen”).
1. Facts
1 On July 25, 2013, this Court granted Defendants’ special exceptions. Plaintiffs’
were required to re-plead by Aug. 16, 2013, or face dismissal with prejudice. Plaintiffs did not
re-plead, so Plaintiffs’ claims were dismissed with prejudice on Sept. 19, 2013.
2. On Sept. 25, 2013, Plaintiffs attempted to file an amended pleading, Plaintiffs’
Motion for Judicial Review of Documentation or Instrument Purporting to Create a Lien or
Claim (“Motion for Judicial Review”) after judgment was rendered. This Court’s plenary power
expired on Oct. 21, 2013, and no ruling was issued on Plaintiffs’ Motion for Judicial Review
before this Court lost plenary power. Further, this was an improper attempt to amend the
pleadings after final judgment.
DEFENDANTS’ RESPONSE & OBJECTION TO.
PLAINTIFFS’ MOTION TO REOPEN THE EVIDENCE PAGE 1 OF7
ES sass) ESS eset aT =
3 Also, Plaintiffs previously filed a Section 51.903 Motion as a separate suit in
Cause No. 2013-50122 attempting to declare the Deed of Trust “fraudulent.” This Motion was
DENIED by the 269" District Court, Harris County, Texas on Aug. 29, 2013, finding that
Defendants’ lien should be accorded lien status and that the Deed of Trust and all documents
creating the lien are not fraudulent, are provided for by law, and are created by the implicd or
express consent of the Plaintiffs.
4. On Oct. 25, 2013, at Plaintiffs’ request, this Court held a status conference.
Following the status conference, no ruling was issued. On Nov. 5, 2013, Plaintiffs filed their
Motion to Reopen.
5 This Motion is legally invalid for several reasons. First, additional evidence may
not be entered after the Court’s plenary power has expired. Second, Plaintiffs have not met their
burden to enter evidence under TEx. R. Crv. P. 270. Third, Plaintiffs’ Motion is barred by res
judicata. Consequently, a Motion to Reopen serves no purpose.
Il. Argument & Authorities
A, Plaintiffs’ Motion is Untimely, and the Court has no jurisdiction to enter further
evidence.
6 A court has no jurisdiction to grant a Rule 270 Motion to Reopen and allow
evidence to be introduced after a court’s plenary power expires. See Republic Nat’l Bank of
Dallas v, Fredericks, 155 Tex. 79, 91, 283 S.W.2d 39, 48 (Tex. 1955); Eli Lilly & Co. v. Casey,
457 S.W.2d 82, 84-86 (Tex. App.—Eastland 1970); Swofford v. Tri-State Chems., Inc., 764
S.W.2d 24, 26 (Tex. App—El Paso 1989, writ denied); Craft v. Davis, 2008 Tex. App. LEXIS
68226 (Tex. App.—Fort Worth 2008, no pet.}. A trial court has plenary power over a case for
thirty days after signing a final judgment. Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v.
Smith S. Equip., 10 $.W.3d 308, 310 (Tex. 2000). This Court’s plenary power expired on Oct.
DEFENDANTS’ RESPONSE & OBJECTION TO
PLAINTIFFS’ MOTION TO REOPEN THE EVIDENCE, PAGE 2 OF 7
ee (SERS ES ee
21, 2013, thirty days after this Court dismissed Plaintiffs’ claims with prejudice. See TEX. R.
Civ. P. 329b(d). Consequently, Plaintiffs’ Motion must be denied on the ground that the Court is
without jurisdiction cither to grant Plaintiffs’ motion or enter any additional evidence. See id.
B. Alternatively, Plaintiffs have not met their burden to introduce evidence under Tex, R.
Civ, P, 270,
7
A trial court should deny a Motion to Reopen when the introduction of additional
evidence does not clearly appear to be necessary to the administration of justice. See TEX. R. Civ.
P, 270. In deciding whether to allow additional evidence, a court should consider (1) whether
the movant has been diligent in obtaining the evidence, (2) whether the receipt of additional
evidence will cause undue delay, (3) whether allowing additional evidence will result in
injustice, and (4) whether the evidence will be decisive. Moore v. Jet Stream Invs., Ltd., 315
S.W.3d 195, 201 (Tex. App.—Texarkana 2010, pet. denied); Hernandez v. Lautensack, 201
S.W.3d 771, 779 (Tex. App—Fort Worth 2006, pet. denied).
i) Plaintiffs were not diligent in obtaining the evidence
8 The Court should deny Plaintiffs’ Motion to Reopen because Plaintiffs were not
diligent in obtaining the evidence. Poag v. Flories, 317 S.W.3d 820, 828 (Tex. App.—Fort
Worth 2010, pet. denied). A party does not show diligence in obtaining evidence if the party did
not offer the evidence but had possession of or access to the evidence before judgment was
rendered. Id. If a Motion to Reopen is not based on new testimony or newly discovered evidence,
then a Motion to Reopen should be denied. Jd. In this case, Plaintiffs seek to have the Court
review a deed, which was executed over six years ago, and an affidavit that was executed
roughly a month before Plaintiffs’ claims were dismissed pursuant to their failure to re-plead
after Special Exceptions were granted, Consequently, Plaintiffs Motion must be denied because
DEFENDANTS’ RESPONSE & OBJECTION TO
PLAINTIFFS’ MOTION TO REOPEN THE EVIDENCE PAGE 3 OF7
Plaintiffs were not diligent in obtaining or entering the evidence since they had access to and
could have entered the evidence before judgment was entered but failed to do so. See id.
ii.) Allowing evidence will cause undue delay
9 The Court should deny Plaintiffs’ Motion because allowing the evidence Plaintiffs
seek to offer will cause undue delay. A court may deny a Motion to Reopen based on undue
delay if the case has been on file for a long time, and there has been a protracted trial. Moore,
315 S.W.3d at 202-03. Further, because a trial court is obligated to permit both sides to develop
their case if reopening is allowed, even introducing a small amount of evidence can result in a
lengthy and undue delay. /d. Plaintiffs’ filed its Original Petition more than two years ago, and
this Court has heard numerous motions related to Plaintiffs’ causes of action. The end result of
the case was dismissal with prejudice because Plaintiffs refused to amend a pleading that had no
basis in law. The “evidence” Plaintiffs are now secking to introduce is in support of those exact
same claims the Court previously found meritless. If Plaintiffs’ Motion is granted, the result
would be undue delay. See id.
iti.) Granting Plaintiffs’ Motion will result in injustice
10. This Court should deny Plaintiffs’ Motion because granting the Motion would
result in an injustice. Countless courts have held that the “interests of justice do not warrant a
second bite at the apple” when reopening the evidence allows a party another opportunity to retry
their case. Moore, 315 S.W.3d at 203; Poag, 317 S.W.3d at 818; Hernandez, 201 $,W.3d at 779.
Plaintiffs’ Motion to Reopen should be denied because it simply provides Plaintiffs another
opportunity to relitigate Plaintiffs’ alleged claims that the Deed of Trust is invalid and that U.S.
Bank and AHMSI did not have the authority to administer a foreclosure, which this Court found
DEFENDANTS’ RESPONSE & OBJECTION TO
PLAINTIFFS’ MOTION TO REOPEN THE EVIDENCE PAGE 4 OF 7
1 SAT, SET
to have no basis in law. See Moore, 315 S.W.3d at 203; see Poag, 317 S.W.3d at 818; see
Hernandez, 201 S.W.3d at 779.
11. Further, not only would reopening evidence allow Plaintiffs “a second bite at the
apple” in the instant case, but also would allow Plaintiffs to relitigate an issue that has already
been decided by another Harris County District Court—the 269" District Court in Cause No.
2013-50122. Plaintiffs’ claims are barred by res judicata.
iv.) The Evidence is not decisive.
2. Finally, this Court should deny Plaintiffs’ Motion to Reopen because the evidence
Plaintiffs seek to offer is not decisive. Naguib v. Naguib, 137 S.W.3d 367, 373 (Tex. App—
Dallas 2004, pet. denied). Evidence is not decisive if it is cumulative or if it is conflicting. Id; In
re A.R.W., 2010 Tex. App. LEXIS 6643 (Tex. App—Waco 2010). Plaintiffs seek to introduce
evidence showing that the deed of trust is fraudulent and Defendants’ did not have authority to
foreclose; however, these issues were decided by the Court’s rulings on Defendants’ Special
Exceptions and Motion to Dismiss. Plaintiffs are not bringing forth any new evidence that
supports a valid cause of action. Plaintiffs just hired some person claiming to be an “expert” to
state that claims that were previously ruled to be legally invalid are correct. Because the validity
of the Deed and AHMSI’s authority to foreclose was previously analyzed and ruled upon by this
Court, any further evidence relating to the validity of the Deed and the foreclosure is both
cumulative and conflicting. See Naguib, 137 S.W.3d at 373; In re A.R.W., 2010 Tex. App.
LEXIS 6643. Consequently, Plaintiffs’ Motion must be denied.
13. Further, any evidence in support of Plaintiffs’ Motion for Judicial Review is not
decisive and is irrelevant because Plaintiffs’ Motion for Judicial Review is barred by res judicata.
Res judicata, or claim preclusion, prevents the re-litigation of a claim or cause of action that has
DEFENDANTS’ RESPONSE & OBJECTION TO.
PLAINTIFFS’ MOTION TO REOPEN THE EVIDENCE PAGE 5 OF 7
ahah
been finally adjudicated, as well as related matters that, with the use of diligence, should have
been litigated in the prior suit. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex.
1992). Res Judicata requires proof of three elements: (1) a prior final judgment on the merits by
a court of competent jurisdiction, (2) the same patties or those in privity with them, and (3) a
second action based on the same claims that were raised or could have been raised in the first
suit. Igal v. Brighstar Info. Tech Group, Inc., 250 8.W.3d 78, 86 (Tex. 2008). Plaintiffs’ Motion
to Reopen seeks to introduce evidence in support of their Motion for Judicial Review. However,
Plaintiffs’ have previously filed the same motion regarding the same Deed of Trust, pursuant to
the same statute, seeking to re-litigate the issue of whether the Deed is fraudulent under TEX.
Gov’T CopE § 51.903. Because the 269" District Court has issued a final judgment on the
merits finding the Deed of Trust is not fraudulent pursuant to § 51.903 and because all the other
elements of res judicata are met, any further evidence Plaintiffs seek to introduce is irrelevant
and not decisive. See Naguib, 137 S.W.3d at 373. Therefore, Plaintiffs’ Motion must be denied.
III, Conclusion
14. In conclusion, Plaintiffs’ motion must be denied because (1) this Court is without
jurisdiction to enter new evidence, and (2) Plaintiffs’ have not met their burden to enter new
evidence under Tex. R. Clv. P. 270.
Prayer
For these reasons, Defendants respectfully requests that this Court deny Plaintiffs’
Motion to Reopen Evidence.
DEFENDANTS’ RESPONSE & OBJECTION TO
PLAINTIFFS’ MOTION TO REOPEN THE EVIDENCE PAGE 6 OF 7
EERE Bee Bees emeress SSR
Respectfully submitted,
OY
J. Garth Fennégan
Texas Bar I.D. 24004642
gfennegan@settlepou.com
Jeremy J. Overbey
Texas Bar I.D. 24046570
Joverbey@settlepou.com
SETTLEPOU
3333 Lee Parkway, Eighth Floor
Dallas, Texas 75219
(214) 520-3300
(214) 526-4145 (Facsimile)
ATTORNEYS FOR U.S. BANK NATIONAL
ASSOCIATION AS TRUSTEE FOR MASTR
ASSET BACKED SECURITIES TRUST 2007-
HE2, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-HE2.
Certificate of Service
I certify that this document was served in accordance with the Texas Rules of Civil
Procedure on November 13, 2013, by the manner indicated upon the following persons:
Via Electronic Mail and
Via CM/RRR No. 7196 9008 9111 8276 8223
Samuel Judge Brown
Law Office of Samuel Judge Brown
11811 North Freeway, Suite 500
Houston, Texas 77060
Attorney for Plaintiffs
Jeremy J/Overbey
DMS-#621960-v1-Defendant_s_Response_and_Objection_to_Plaintiff_s
Motion to Reopen_Evidence.DOC
DEFENDANTS’ RESPONSE & OBJECTION TO
PLAINTIFFS’ MOTION TO REOPEN THE EVIDENCE PAGE 7 OF 7
Preview
— 7 ~ Filed 13 November 13 A11:32 Chris Daniel - District Clerk Harris Coun! ED101) 017818702 By: Melissa cox CAUSE NO, 2011-50763 SALVADOR RIVAS AND ALMA § IN THE DISTRICT COURT SANTIAGO, HUSBAND AND WIFE, § Plaintiffs, Vv. 333"° JUDICIAL DISTRICT U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR MASTR ASSET BACKED SECURITES TRUST 2007-HE2 AND AMERICAN HOME MORTGAGE SERVICING, INC., § § Defendants. § HARRIS COUNTY, TEXAS DEFENDANTS’ RESPONSE & OBJECTION TO PLAINTIFFS’ MOTION TO REOPEN THE EVIDENCE Defendants, U.S. Bank National Association as Trustee for Mastr Asset Backed Securities Trust 2007-HE2 and American Home Mortgage Servicing, Inc. (“Defendants”), object to and ask the Court to deny Plaintiffs’ Motion to Reopen the Evidence (“Motion to Reopen”). 1. Facts 1 On July 25, 2013, this Court granted Defendants’ special exceptions. Plaintiffs’ were required to re-plead by Aug. 16, 2013, or face dismissal with prejudice. Plaintiffs did not re-plead, so Plaintiffs’ claims were dismissed with prejudice on Sept. 19, 2013. 2. On Sept. 25, 2013, Plaintiffs attempted to file an amended pleading, Plaintiffs’ Motion for Judicial Review of Documentation or Instrument Purporting to Create a Lien or Claim (“Motion for Judicial Review”) after judgment was rendered. This Court’s plenary power expired on Oct. 21, 2013, and no ruling was issued on Plaintiffs’ Motion for Judicial Review before this Court lost plenary power. Further, this was an improper attempt to amend the pleadings after final judgment. DEFENDANTS’ RESPONSE & OBJECTION TO. PLAINTIFFS’ MOTION TO REOPEN THE EVIDENCE PAGE 1 OF7 ES sass) ESS eset aT = 3 Also, Plaintiffs previously filed a Section 51.903 Motion as a separate suit in Cause No. 2013-50122 attempting to declare the Deed of Trust “fraudulent.” This Motion was DENIED by the 269" District Court, Harris County, Texas on Aug. 29, 2013, finding that Defendants’ lien should be accorded lien status and that the Deed of Trust and all documents creating the lien are not fraudulent, are provided for by law, and are created by the implicd or express consent of the Plaintiffs. 4. On Oct. 25, 2013, at Plaintiffs’ request, this Court held a status conference. Following the status conference, no ruling was issued. On Nov. 5, 2013, Plaintiffs filed their Motion to Reopen. 5 This Motion is legally invalid for several reasons. First, additional evidence may not be entered after the Court’s plenary power has expired. Second, Plaintiffs have not met their burden to enter evidence under TEx. R. Crv. P. 270. Third, Plaintiffs’ Motion is barred by res judicata. Consequently, a Motion to Reopen serves no purpose. Il. Argument & Authorities A, Plaintiffs’ Motion is Untimely, and the Court has no jurisdiction to enter further evidence. 6 A court has no jurisdiction to grant a Rule 270 Motion to Reopen and allow evidence to be introduced after a court’s plenary power expires. See Republic Nat’l Bank of Dallas v, Fredericks, 155 Tex. 79, 91, 283 S.W.2d 39, 48 (Tex. 1955); Eli Lilly & Co. v. Casey, 457 S.W.2d 82, 84-86 (Tex. App.—Eastland 1970); Swofford v. Tri-State Chems., Inc., 764 S.W.2d 24, 26 (Tex. App—El Paso 1989, writ denied); Craft v. Davis, 2008 Tex. App. LEXIS 68226 (Tex. App.—Fort Worth 2008, no pet.}. A trial court has plenary power over a case for thirty days after signing a final judgment. Tex. R. Civ. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., 10 $.W.3d 308, 310 (Tex. 2000). This Court’s plenary power expired on Oct. DEFENDANTS’ RESPONSE & OBJECTION TO PLAINTIFFS’ MOTION TO REOPEN THE EVIDENCE, PAGE 2 OF 7 ee (SERS ES ee 21, 2013, thirty days after this Court dismissed Plaintiffs’ claims with prejudice. See TEX. R. Civ. P. 329b(d). Consequently, Plaintiffs’ Motion must be denied on the ground that the Court is without jurisdiction cither to grant Plaintiffs’ motion or enter any additional evidence. See id. B. Alternatively, Plaintiffs have not met their burden to introduce evidence under Tex, R. Civ, P, 270, 7 A trial court should deny a Motion to Reopen when the introduction of additional evidence does not clearly appear to be necessary to the administration of justice. See TEX. R. Civ. P, 270. In deciding whether to allow additional evidence, a court should consider (1) whether the movant has been diligent in obtaining the evidence, (2) whether the receipt of additional evidence will cause undue delay, (3) whether allowing additional evidence will result in injustice, and (4) whether the evidence will be decisive. Moore v. Jet Stream Invs., Ltd., 315 S.W.3d 195, 201 (Tex. App.—Texarkana 2010, pet. denied); Hernandez v. Lautensack, 201 S.W.3d 771, 779 (Tex. App—Fort Worth 2006, pet. denied). i) Plaintiffs were not diligent in obtaining the evidence 8 The Court should deny Plaintiffs’ Motion to Reopen because Plaintiffs were not diligent in obtaining the evidence. Poag v. Flories, 317 S.W.3d 820, 828 (Tex. App.—Fort Worth 2010, pet. denied). A party does not show diligence in obtaining evidence if the party did not offer the evidence but had possession of or access to the evidence before judgment was rendered. Id. If a Motion to Reopen is not based on new testimony or newly discovered evidence, then a Motion to Reopen should be denied. Jd. In this case, Plaintiffs seek to have the Court review a deed, which was executed over six years ago, and an affidavit that was executed roughly a month before Plaintiffs’ claims were dismissed pursuant to their failure to re-plead after Special Exceptions were granted, Consequently, Plaintiffs Motion must be denied because DEFENDANTS’ RESPONSE & OBJECTION TO PLAINTIFFS’ MOTION TO REOPEN THE EVIDENCE PAGE 3 OF7 Plaintiffs were not diligent in obtaining or entering the evidence since they had access to and could have entered the evidence before judgment was entered but failed to do so. See id. ii.) Allowing evidence will cause undue delay 9 The Court should deny Plaintiffs’ Motion because allowing the evidence Plaintiffs seek to offer will cause undue delay. A court may deny a Motion to Reopen based on undue delay if the case has been on file for a long time, and there has been a protracted trial. Moore, 315 S.W.3d at 202-03. Further, because a trial court is obligated to permit both sides to develop their case if reopening is allowed, even introducing a small amount of evidence can result in a lengthy and undue delay. /d. Plaintiffs’ filed its Original Petition more than two years ago, and this Court has heard numerous motions related to Plaintiffs’ causes of action. The end result of the case was dismissal with prejudice because Plaintiffs refused to amend a pleading that had no basis in law. The “evidence” Plaintiffs are now secking to introduce is in support of those exact same claims the Court previously found meritless. If Plaintiffs’ Motion is granted, the result would be undue delay. See id. iti.) Granting Plaintiffs’ Motion will result in injustice 10. This Court should deny Plaintiffs’ Motion because granting the Motion would result in an injustice. Countless courts have held that the “interests of justice do not warrant a second bite at the apple” when reopening the evidence allows a party another opportunity to retry their case. Moore, 315 S.W.3d at 203; Poag, 317 S.W.3d at 818; Hernandez, 201 $,W.3d at 779. Plaintiffs’ Motion to Reopen should be denied because it simply provides Plaintiffs another opportunity to relitigate Plaintiffs’ alleged claims that the Deed of Trust is invalid and that U.S. Bank and AHMSI did not have the authority to administer a foreclosure, which this Court found DEFENDANTS’ RESPONSE & OBJECTION TO PLAINTIFFS’ MOTION TO REOPEN THE EVIDENCE PAGE 4 OF 7 1 SAT, SET to have no basis in law. See Moore, 315 S.W.3d at 203; see Poag, 317 S.W.3d at 818; see Hernandez, 201 S.W.3d at 779. 11. Further, not only would reopening evidence allow Plaintiffs “a second bite at the apple” in the instant case, but also would allow Plaintiffs to relitigate an issue that has already been decided by another Harris County District Court—the 269" District Court in Cause No. 2013-50122. Plaintiffs’ claims are barred by res judicata. iv.) The Evidence is not decisive. 2. Finally, this Court should deny Plaintiffs’ Motion to Reopen because the evidence Plaintiffs seek to offer is not decisive. Naguib v. Naguib, 137 S.W.3d 367, 373 (Tex. App— Dallas 2004, pet. denied). Evidence is not decisive if it is cumulative or if it is conflicting. Id; In re A.R.W., 2010 Tex. App. LEXIS 6643 (Tex. App—Waco 2010). Plaintiffs seek to introduce evidence showing that the deed of trust is fraudulent and Defendants’ did not have authority to foreclose; however, these issues were decided by the Court’s rulings on Defendants’ Special Exceptions and Motion to Dismiss. Plaintiffs are not bringing forth any new evidence that supports a valid cause of action. Plaintiffs just hired some person claiming to be an “expert” to state that claims that were previously ruled to be legally invalid are correct. Because the validity of the Deed and AHMSI’s authority to foreclose was previously analyzed and ruled upon by this Court, any further evidence relating to the validity of the Deed and the foreclosure is both cumulative and conflicting. See Naguib, 137 S.W.3d at 373; In re A.R.W., 2010 Tex. App. LEXIS 6643. Consequently, Plaintiffs’ Motion must be denied. 13. Further, any evidence in support of Plaintiffs’ Motion for Judicial Review is not decisive and is irrelevant because Plaintiffs’ Motion for Judicial Review is barred by res judicata. Res judicata, or claim preclusion, prevents the re-litigation of a claim or cause of action that has DEFENDANTS’ RESPONSE & OBJECTION TO. PLAINTIFFS’ MOTION TO REOPEN THE EVIDENCE PAGE 5 OF 7 ahah been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in the prior suit. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). Res Judicata requires proof of three elements: (1) a prior final judgment on the merits by a court of competent jurisdiction, (2) the same patties or those in privity with them, and (3) a second action based on the same claims that were raised or could have been raised in the first suit. Igal v. Brighstar Info. Tech Group, Inc., 250 8.W.3d 78, 86 (Tex. 2008). Plaintiffs’ Motion to Reopen seeks to introduce evidence in support of their Motion for Judicial Review. However, Plaintiffs’ have previously filed the same motion regarding the same Deed of Trust, pursuant to the same statute, seeking to re-litigate the issue of whether the Deed is fraudulent under TEX. Gov’T CopE § 51.903. Because the 269" District Court has issued a final judgment on the merits finding the Deed of Trust is not fraudulent pursuant to § 51.903 and because all the other elements of res judicata are met, any further evidence Plaintiffs seek to introduce is irrelevant and not decisive. See Naguib, 137 S.W.3d at 373. Therefore, Plaintiffs’ Motion must be denied. III, Conclusion 14. In conclusion, Plaintiffs’ motion must be denied because (1) this Court is without jurisdiction to enter new evidence, and (2) Plaintiffs’ have not met their burden to enter new evidence under Tex. R. Clv. P. 270. Prayer For these reasons, Defendants respectfully requests that this Court deny Plaintiffs’ Motion to Reopen Evidence. DEFENDANTS’ RESPONSE & OBJECTION TO PLAINTIFFS’ MOTION TO REOPEN THE EVIDENCE PAGE 6 OF 7 EERE Bee Bees emeress SSR Respectfully submitted, OY J. Garth Fennégan Texas Bar I.D. 24004642 gfennegan@settlepou.com Jeremy J. Overbey Texas Bar I.D. 24046570 Joverbey@settlepou.com SETTLEPOU 3333 Lee Parkway, Eighth Floor Dallas, Texas 75219 (214) 520-3300 (214) 526-4145 (Facsimile) ATTORNEYS FOR U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR MASTR ASSET BACKED SECURITIES TRUST 2007- HE2, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HE2. Certificate of Service I certify that this document was served in accordance with the Texas Rules of Civil Procedure on November 13, 2013, by the manner indicated upon the following persons: Via Electronic Mail and Via CM/RRR No. 7196 9008 9111 8276 8223 Samuel Judge Brown Law Office of Samuel Judge Brown 11811 North Freeway, Suite 500 Houston, Texas 77060 Attorney for Plaintiffs Jeremy J/Overbey DMS-#621960-v1-Defendant_s_Response_and_Objection_to_Plaintiff_s Motion to Reopen_Evidence.DOC DEFENDANTS’ RESPONSE & OBJECTION TO PLAINTIFFS’ MOTION TO REOPEN THE EVIDENCE PAGE 7 OF 7