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CAUSE NO: 13-02554
BRIAN ALEXANDER § IN THE DISTRICT COU Hoe: 06
AND SARAH BICK § Osiris e
PLAINTIFF, § LUA ehh
V. § DALLAS CO ry §
§
AMERICAN HOME FREE MORTGAGE, §
LLC, GAYLENE ROGERS LONERGAN, §
AND HARRY MCCLISH §
DEFENDANTS § 191% JUDICIAL DISTRICT
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO REOPEN
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendant American Home Free Mortgage, LLC and submits this
response to Plaintiffs’ Motion to Reopen and would show the Court:
I. FACTS
1. On or about March 1, 2013, Plaintiffs filed their original Petition against
Defendants, seeking a declaration that Plaintiffs were not in default of their obligations to
Defendant, American Home Free Mortgage, LLC (“American Home Free”).
2. On or about March 22, 2013, the Court held a hearing to determine whether a
Temporary Injunction should be issued as requested by Plaintiffs.
3. On or about March 25, 2013, Plaintiffs filed their Motion to Reopen to submit
additional evidence in which they seek to provide the Court with additional evidence regarding
Plaintiffs’ 2011 Amended Personal Tax Return (“Amended Return”) which was signed by
Plaintiffs on January 25, 2013, presumably filed shortly thereafter, and which was in Plaintiffs’
possession at the time of the original hearing on March 25, 2013.
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO REOPEN PAGE 1 OF 6
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teei. APPLICABLE LAW
4. Plaintiffs should not be permitted to Reopen the Evidence. Texas Rule of Civil
Procedure 270 provides that a trial court may permit additional evidence to be offered at any.
time when it clearly appears necessary to the administration of justice. Tex. R. Civ. P. 270. Rule
270 allows, but does not require, a trial court to permit additional evidence. Lopez v. Lopez,
55 8.W.3d 194, 201 (Tex. App.—Corpus Christi 2001, no pet.). In determining whether to
permit additional evidence, a court should consider whether (1) the moving party showed due
diligence in obtaining the evidence; (2) the proffered evidence is decisive; (3) reception of such
evidence will cause undue delay; and (4) granting the motion will cause injustice. Hernandez v.
Lautensack, 201 s.w3d 771, 779 (Tex. App.—Fort Worth 2006, pet. denied). The decision to
reopen is within the trial court's sound discretion. Jd. “{A] trial court does not abuse its discretion
by refusing to reopen a case after evidence is closed if the party seeking to reopen has not shown
diligence in attempting to produce the evidence in a timely fashion.” Lopez, 55 S.W.3d at
201 (citing Estrello v. Elboar, 965 S.W.2d 754, 759 (Tex. App—Fort Worth 1998, no pet.));
see Hernandez, 201 S.W.3d at 779.
5. In Lopez the appellate court upheld the trial court's denial of the Motion to
Reopen the Evidence and concluded there was no abuse of discretion because the movant did not
show that she had used due diligence in obtaining the evidence she attempted to present because
the record showed that petition for divorce had been on file for over 6 months and the Movant
had made no effort to locate any documentation to support her claims until after the court granted
the divorce and divided the property. The Court further noted that the documents presented were
not decisive because they were unsworn, and simply cumulative of testimony given at trial.
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO REOPEN PAGE 2 OF 6I. ARGUMENT
6. Plaintiffs have failed to meet their burden in their Motion to Reopen the Evidence
in that they has wholly failed to provide any competent evidence that they were “diligent” in
obtaining the newly proffered evidence. Plaintiffs’ Amended Return was in their sole custody
from January 25, 2013 when they signed the return to the date of the hearing. In fact both
Plaintiffs and Defendants introduced portions of the Amended Return into evidence at the
hearing. Now after the hearing, Plaintiffs attempt to provide supplements to the portion already
provided without explanation of their failure to offer the entire document at the hearing.
7. In addition, three of the four sections that Plaintiffs refer to in their Motion to
Reopen were offered and admitted into evidence at the Temporary Injunction hearing. Line 21
on page 21 of the Amended Personal Tax Return addressing other income was included in
Plaintiffs’ Exhibit 5. The same is true of Schedule E (stamped ‘37’ on the bottom right hand
corner of the first page of Schedule E). The same is true of the second page of Schedule E
(stamped “38” on the bottom right hand corner of the page of Schedule E). The only portions of
the 2011 Amended Return which Plaintiffs purports to offer as new is Statement 2 (stamped
“70”) which itemizes Mr. Alexander’s “Other Income”. Plaintiffs offer no justification as to why
the entirety of the document is necessary when the sections Plaintiffs cite to are already admitted.
8. Furthermore, Plaintiffs have failed to provide the Court with factual support to
show that the evidence they are attempting to introduce is “decisive” in proving that Plaintiffs
are not in default. Ms. Hughes testified as a representative of American Home Free that only
certain components of Mr. Alexander’s income were considered in underwriting the loan. Ms.
Hughes further testified that there are underwriting requirements for various types of income and
i
American Home Free received evidence of Mr. Alexander’s income from Alexander &
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DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO REOPEN PAGE 3 OF 6Alexander, P.C. and evaluated that income based on a 2011 Profit & Loss statement reflecting
net income of $106,458.49 and a W2 issued by Alexander and Alexander, P.C. reflecting wages
of $86,102.30.
9. American Home Free..contends that Plaintiffs are in default because Plaintiffs
gave materially false, misleading, or inaccurate information or statements to American Home
Free during the loan application process. Mr. Alexander’s income from rental property or “other
income” has no bearing on this matter as American Home Free does not contend materially false,
misleading, or inaccurate information was provided in regards to that income. The only decisive
evidence is that which tends to show whether the information or statements made or given by
Plaintiffs to American Home Free in support of income from Alexander and Alexander, P.C.
were false, misleading, or inaccurate.
10. Plaintifs state in their motion that Ms. Hughes testified that the issue of Brian
Alexander’s income lou be cured if his income were in an amount in excess of One Hundred
Six Thousand Dollars ($106,000.00). Plaintiffs grossly mischaracterize Ms. Hughes testimony.
Ms. Hughes explained that the default would have been cured if Mr. Alexander had provided an
amended tax return reflecting wages from and net income of Alexander and Alexander, P.C. that
were substantially similar to the 2011 W2 reflecting wages of $86,102.30 and the Profit & Loss
statement reflecting net income of $106,458.49 provided by Mr. Alexander to American Home
Free. The Amended Return however reflects wages of $2,000 and net income of $81,617.
Plaintiffs are not in default because Mr. Alexander’s total income is too low. Plaintiffs are in
default because Mr. Alexander presented American Home Free with materially false, misleading,
or inaccurate information by presenting a W2 and Profit & Loss statement demonstrating
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO REOPEN PAGE 4 OF 6$192,560.79 of income from Alexander and Alexander, P.C. when his actual income from
Alexander and Alexander, P.C. was $83,617.
11. Plaintiffs have failed to provide the Court with any competent evidence by way of
_. affidavit, testimony or. otherwise which would support-the relief-requested in-the Motion. The
document attached to the Motion is unsworn and cumulative of the evidence provided to the
Court at the Temporary Injunction hearing and as such is subject to the Appellate Court's dictates
in Lopez.
IV. REQUEST FOR RELIEF
In consideration of the foregoing, American Home Free asks _ that
Plaintiffs’ Motion to Reopen to Submit Additional Evidence be denied, and for such other and
further relief as they may show themselves justly entitled.
Respectfully Submitted,
{tho
Gaylene Rogers Lonergan
State Bar. No. 17166500
Stephen C. Christy
State Bar No. 24069507
LONERGAN LAW FIRM PLLC
12801 North Central Expressway
Suite 150
Dallas, TX 75243
Tel: (214) 503-7509
Fax: (214) 503-8752
Attorneys for Defendants
DEFENDANT’S RESPONSE 'TO PLAINTIFFS’ MOTION TO REOPEN PAGE 5 OF 6CERTIFICATE OF SERVICE
In accordance with Rule 21a of the Texas Rules of Civil Procedure, the undersigned
attorney hereby certified that a copy of the foregoing instrument was served in accordance with
the Texas Rules of Civil Procedure on all parties on this the 27" day of March, 2013.
Stephen C. Christy
DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO REOPEN PAGE 6 OF 6Tur LONERGAN LAW FirMpirc CO iB
FILED
13MAR28 PH 3:06
Gakic 2S
DALLAS CO. TEXAS
March 27,2013 ____ DEPUTY
VIA FirsT-CLASS MAIL
Court Clerk
191* District Court
George L. Allen, Sr. Courts Bldg.
600 Commerce St., Box 740
Dallas, Texas 75202
Re: Cause No. 13-02554; Brian Alexander, et. al. v. American Home Free
Mortgage, et. al.; in the 191% Judicial District of Dallas County, Texas
Our File No. 1056-001
Dear Court Clerk:
Enclosed please find the original and one copy of Defendant's Response to Plaintiffs’
Motion to Reopen. Please file the original Response to Plaintiffs’ Motion to Reopen with the
court and return a file-marked copy in the self-addressed, postage paid envelope provided for
your convenience.
By copy of this letter, all counsel of record and parties have received a true copy of same.
If you have any questions please feel free to contact me.
Sincerely,
fttheo
Stephen C. Christy
scc
Enclosures
12801 North Central Expressway, Suite 150 Dallas, Texas 75243 214.503.7509 phone 214.503.8752 faxce:
VIA FIRST-CLASS MAIL
Robert D. Cohen
211 N. Record, Suite 450
Dallas, Texas 75202
12801 North Central Expressway, Suite 150 Dallas, Texas 75243 214.503.7509 phone —.214.503.8752 fax
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> CAUSE NO: 13-02554 BRIAN ALEXANDER § IN THE DISTRICT COU Hoe: 06 AND SARAH BICK § Osiris e PLAINTIFF, § LUA ehh V. § DALLAS CO ry § § AMERICAN HOME FREE MORTGAGE, § LLC, GAYLENE ROGERS LONERGAN, § AND HARRY MCCLISH § DEFENDANTS § 191% JUDICIAL DISTRICT DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO REOPEN TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Defendant American Home Free Mortgage, LLC and submits this response to Plaintiffs’ Motion to Reopen and would show the Court: I. FACTS 1. On or about March 1, 2013, Plaintiffs filed their original Petition against Defendants, seeking a declaration that Plaintiffs were not in default of their obligations to Defendant, American Home Free Mortgage, LLC (“American Home Free”). 2. On or about March 22, 2013, the Court held a hearing to determine whether a Temporary Injunction should be issued as requested by Plaintiffs. 3. On or about March 25, 2013, Plaintiffs filed their Motion to Reopen to submit additional evidence in which they seek to provide the Court with additional evidence regarding Plaintiffs’ 2011 Amended Personal Tax Return (“Amended Return”) which was signed by Plaintiffs on January 25, 2013, presumably filed shortly thereafter, and which was in Plaintiffs’ possession at the time of the original hearing on March 25, 2013. DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO REOPEN PAGE 1 OF 6 | | | | ~ rey teei. APPLICABLE LAW 4. Plaintiffs should not be permitted to Reopen the Evidence. Texas Rule of Civil Procedure 270 provides that a trial court may permit additional evidence to be offered at any. time when it clearly appears necessary to the administration of justice. Tex. R. Civ. P. 270. Rule 270 allows, but does not require, a trial court to permit additional evidence. Lopez v. Lopez, 55 8.W.3d 194, 201 (Tex. App.—Corpus Christi 2001, no pet.). In determining whether to permit additional evidence, a court should consider whether (1) the moving party showed due diligence in obtaining the evidence; (2) the proffered evidence is decisive; (3) reception of such evidence will cause undue delay; and (4) granting the motion will cause injustice. Hernandez v. Lautensack, 201 s.w3d 771, 779 (Tex. App.—Fort Worth 2006, pet. denied). The decision to reopen is within the trial court's sound discretion. Jd. “{A] trial court does not abuse its discretion by refusing to reopen a case after evidence is closed if the party seeking to reopen has not shown diligence in attempting to produce the evidence in a timely fashion.” Lopez, 55 S.W.3d at 201 (citing Estrello v. Elboar, 965 S.W.2d 754, 759 (Tex. App—Fort Worth 1998, no pet.)); see Hernandez, 201 S.W.3d at 779. 5. In Lopez the appellate court upheld the trial court's denial of the Motion to Reopen the Evidence and concluded there was no abuse of discretion because the movant did not show that she had used due diligence in obtaining the evidence she attempted to present because the record showed that petition for divorce had been on file for over 6 months and the Movant had made no effort to locate any documentation to support her claims until after the court granted the divorce and divided the property. The Court further noted that the documents presented were not decisive because they were unsworn, and simply cumulative of testimony given at trial. DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO REOPEN PAGE 2 OF 6I. ARGUMENT 6. Plaintiffs have failed to meet their burden in their Motion to Reopen the Evidence in that they has wholly failed to provide any competent evidence that they were “diligent” in obtaining the newly proffered evidence. Plaintiffs’ Amended Return was in their sole custody from January 25, 2013 when they signed the return to the date of the hearing. In fact both Plaintiffs and Defendants introduced portions of the Amended Return into evidence at the hearing. Now after the hearing, Plaintiffs attempt to provide supplements to the portion already provided without explanation of their failure to offer the entire document at the hearing. 7. In addition, three of the four sections that Plaintiffs refer to in their Motion to Reopen were offered and admitted into evidence at the Temporary Injunction hearing. Line 21 on page 21 of the Amended Personal Tax Return addressing other income was included in Plaintiffs’ Exhibit 5. The same is true of Schedule E (stamped ‘37’ on the bottom right hand corner of the first page of Schedule E). The same is true of the second page of Schedule E (stamped “38” on the bottom right hand corner of the page of Schedule E). The only portions of the 2011 Amended Return which Plaintiffs purports to offer as new is Statement 2 (stamped “70”) which itemizes Mr. Alexander’s “Other Income”. Plaintiffs offer no justification as to why the entirety of the document is necessary when the sections Plaintiffs cite to are already admitted. 8. Furthermore, Plaintiffs have failed to provide the Court with factual support to show that the evidence they are attempting to introduce is “decisive” in proving that Plaintiffs are not in default. Ms. Hughes testified as a representative of American Home Free that only certain components of Mr. Alexander’s income were considered in underwriting the loan. Ms. Hughes further testified that there are underwriting requirements for various types of income and i American Home Free received evidence of Mr. Alexander’s income from Alexander & | DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO REOPEN PAGE 3 OF 6Alexander, P.C. and evaluated that income based on a 2011 Profit & Loss statement reflecting net income of $106,458.49 and a W2 issued by Alexander and Alexander, P.C. reflecting wages of $86,102.30. 9. American Home Free..contends that Plaintiffs are in default because Plaintiffs gave materially false, misleading, or inaccurate information or statements to American Home Free during the loan application process. Mr. Alexander’s income from rental property or “other income” has no bearing on this matter as American Home Free does not contend materially false, misleading, or inaccurate information was provided in regards to that income. The only decisive evidence is that which tends to show whether the information or statements made or given by Plaintiffs to American Home Free in support of income from Alexander and Alexander, P.C. were false, misleading, or inaccurate. 10. Plaintifs state in their motion that Ms. Hughes testified that the issue of Brian Alexander’s income lou be cured if his income were in an amount in excess of One Hundred Six Thousand Dollars ($106,000.00). Plaintiffs grossly mischaracterize Ms. Hughes testimony. Ms. Hughes explained that the default would have been cured if Mr. Alexander had provided an amended tax return reflecting wages from and net income of Alexander and Alexander, P.C. that were substantially similar to the 2011 W2 reflecting wages of $86,102.30 and the Profit & Loss statement reflecting net income of $106,458.49 provided by Mr. Alexander to American Home Free. The Amended Return however reflects wages of $2,000 and net income of $81,617. Plaintiffs are not in default because Mr. Alexander’s total income is too low. Plaintiffs are in default because Mr. Alexander presented American Home Free with materially false, misleading, or inaccurate information by presenting a W2 and Profit & Loss statement demonstrating DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO REOPEN PAGE 4 OF 6$192,560.79 of income from Alexander and Alexander, P.C. when his actual income from Alexander and Alexander, P.C. was $83,617. 11. Plaintiffs have failed to provide the Court with any competent evidence by way of _. affidavit, testimony or. otherwise which would support-the relief-requested in-the Motion. The document attached to the Motion is unsworn and cumulative of the evidence provided to the Court at the Temporary Injunction hearing and as such is subject to the Appellate Court's dictates in Lopez. IV. REQUEST FOR RELIEF In consideration of the foregoing, American Home Free asks _ that Plaintiffs’ Motion to Reopen to Submit Additional Evidence be denied, and for such other and further relief as they may show themselves justly entitled. Respectfully Submitted, {tho Gaylene Rogers Lonergan State Bar. No. 17166500 Stephen C. Christy State Bar No. 24069507 LONERGAN LAW FIRM PLLC 12801 North Central Expressway Suite 150 Dallas, TX 75243 Tel: (214) 503-7509 Fax: (214) 503-8752 Attorneys for Defendants DEFENDANT’S RESPONSE 'TO PLAINTIFFS’ MOTION TO REOPEN PAGE 5 OF 6CERTIFICATE OF SERVICE In accordance with Rule 21a of the Texas Rules of Civil Procedure, the undersigned attorney hereby certified that a copy of the foregoing instrument was served in accordance with the Texas Rules of Civil Procedure on all parties on this the 27" day of March, 2013. Stephen C. Christy DEFENDANT’S RESPONSE TO PLAINTIFFS’ MOTION TO REOPEN PAGE 6 OF 6Tur LONERGAN LAW FirMpirc CO iB FILED 13MAR28 PH 3:06 Gakic 2S DALLAS CO. TEXAS March 27,2013 ____ DEPUTY VIA FirsT-CLASS MAIL Court Clerk 191* District Court George L. Allen, Sr. Courts Bldg. 600 Commerce St., Box 740 Dallas, Texas 75202 Re: Cause No. 13-02554; Brian Alexander, et. al. v. American Home Free Mortgage, et. al.; in the 191% Judicial District of Dallas County, Texas Our File No. 1056-001 Dear Court Clerk: Enclosed please find the original and one copy of Defendant's Response to Plaintiffs’ Motion to Reopen. Please file the original Response to Plaintiffs’ Motion to Reopen with the court and return a file-marked copy in the self-addressed, postage paid envelope provided for your convenience. By copy of this letter, all counsel of record and parties have received a true copy of same. If you have any questions please feel free to contact me. Sincerely, fttheo Stephen C. Christy scc Enclosures 12801 North Central Expressway, Suite 150 Dallas, Texas 75243 214.503.7509 phone 214.503.8752 faxce: VIA FIRST-CLASS MAIL Robert D. Cohen 211 N. Record, Suite 450 Dallas, Texas 75202 12801 North Central Expressway, Suite 150 Dallas, Texas 75243 214.503.7509 phone —.214.503.8752 fax