Acceleration

Affirmed. See Rule 47.6. “Love It” Said Shelley Hopkins for BDF Hopkins.

This case clearly shows the pitfalls of hiring a lawyer who claims on his website to be a foreclosure defense lawyer. LIT disagrees.

William Graham, et al v. U.S. Bank National Association

MAR 7, 2019 | REPUBLISHED BY LIT: JUL 29, 2021

SMITH, JERRY E.

WIENER, JACQUES L. (JR.)

WILLETT, DON R.

Before SMITH, WIENER, and WILLETT, Circuit Judges. PER CURIAM:*

AFFIRMED. See Rule 47.6.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

LIT COMMENT ON GAMMON LAW OFFICE, A FORECLOSURE DEFENSE SOLO PRACTIONER IN AUSTIN, TEXAS

This case clearly shows the pitfalls of hiring a lawyer who claims on his website to be a foreclosure defense lawyer. We disagree. LIT has pulled all the relevant documents to get to the ONE argument on appeal made by Gammon on behalf of his now former clients and former homeowners.

He states that the acceleration was in his response to summary judgment, so we downloaded a copy. There’s no such defense in his 4 page answer.

We’ve read it thrice, just to make sure. We even did a word search for the keywords. Nothing.  So in effect, William “Bill” Gammon went to appeal on the ONE claim and argument he could never win, because he raised it for the first time at the objection to the M&R stage, which is too late.

That’s why its a Rule 47.6 opinion by the Fifth Circuit.

Here’s the documents we reviewed to reach our comment.

Extract(s) from Gammons’ Initial Brief (no reply brief submitted)

STATEMENT OF THE ISSUE

2.01 Did the district court err in failing to address the issue of abandonment of acceleration?

Extract(s) from Hopkins Brief for US Bank

“The Graham’s Response to U.S. Bank’s Motion for Summary Judgment exclusively focused on whether or not U.S. Bank had the right to proceed with foreclosure as the beneficiary under the Deed of Trust.

The Graham’s Response failed to allege or establish any affirmative defense in opposition to U.S. Bank’s claim. It was not until after the Magistrate issued his Report and Recommendation (ROA.241-249), recommending that U.S. Bank’s motion be granted, that the Grahams objected to the Report asserting the affirmative defense that U.S. Bank had abandoned its acceleration. (ROA.250-253).

Despite failing to introduce any controverting summary judgment evidence, the Grahams argue that the “[R]eport entirely ignores the issue of abandonment of acceleration complained of in paragraphs 13 and 14 of Plaintiffs’ Original Petition.” (ROA.251).

This assignment was mistakenly not included with U.S. Bank’s evidence attached to its Motion for Summary Judgment. The assignment was subsequently provided to the district court as an exhibit to U.S. Bank’s Summary Judgment Reply (ROA.238-240) and the District Court was requested to take judicial notice of the publicly recorded Assignment. (ROA.234).

LIT Comment; That “mistake” is sufficient to strike a Motion for Summary Judgment and normally by the Judge’s own order, see Halliburton v. PHH.

Extract(s) from Gammons Petition for the Graham’s

Appellant raised the issues of material fact both

in their response to Appellee’s Motion for Summary Judgment (ROA 227-231)

and

their Objection to the Report and Recommendations of Magistrate Mark Lane (ROA 250-253).

“While accrual is a legal question, whether a holder has accelerated a note is a fact question …” Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001).

A reversible error of law exists in the District Court’s judgment due to the Court’s failure to address the dispositive issue of abandonment when issuing its Final Judgment that claims to dispose of all issues.

FED. R. APP. P. WITH 5TH CIR. R. & IOPs

47.6 Affirmance Without Opinion.

The judgment or order may be affirmed or enforced without opinion when the court determines that an opinion would have no precedential value and that any one or more of the following circumstances exists and is
dispositive of a matter submitted for decision:

(1) that a judgment of the district court is based on findings of fact that are not clearly erroneous;

(2) that the evidence in support of a jury verdict is not insufficient;

(3) that the order of an administrative agency is supported by substantial evidence on the record as a whole;

(4) in the case of a summary judgment, that no genuine issue of material fact has been properly raised by the appellant;

and

(5) no reversible error of law appears. In such case, the court may, in its discretion, enter either of the following orders:

“AFFIRMED. See 5TH CIR. R. 47.6.”

or

“ENFORCED. See 5TH CIR. R. 47.6.”

Graham v. U.S. Bank

(1:17-cv-00292)

District Court, W.D. Texas

JUL 16, 2018 | REPUBLISHED BY LIT: JUL 29, 2021

Magistrate Judge Lane; “But while the mortgagor is not personally liable for attorney’s fees, the mortgagee may recover its attorney’s fees, if permitted under the relevant contract, against the mortgaged property after a foreclosure sale. Here, the undersigned concludes that the terms of the Loan Agreement permit the recovery of attorney’s fees.”

Grahams attorney Gammon objected to award of attorney fees after the M&R was issued. However, this was not an issue which was appealed to the Fifth Circuit.

LIT strongly objects to attorney fee awards in foreclosure cases and what is clear is that W.D. Tex. is where creditor rights attorneys are obtaining these fees. On our review 2019 was the year W.D. Tex. started awarding fees frequently in foreclosure cases.

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

TO THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE:

Before the court are Defendant/Counter-Plaintiff’s Motion for Summary Judgment (Dkt. #19), and related pleadings.1 Having reviewed the pleadings, the motion, the briefing, the evidence, and the relevant law, the undersigned issues the following Report and Recommendation to the District Court.

I. BACKGROUND

A. Procedural History

Plaintiffs originally brought this action in the 201st Judicial District Court of Travis County, Texas as cause number D-1-GN-17-000494, styled William Graham and Lisa L. Graham v. Christiana Trust, a division of Wilmington Savings Fund Society, FSB, as Trust of ARLP Trust 5; Fay Servicing, LLC; and Mackie, Wolf & Zientz, P.C.

The allegations in Plaintiffs’ Original Petition and Request for Disclosure related to foreclosure proceedings of a loan security (the “Loan Agreement”) by real property at 11013 Sierra Verde Trail, Austin, Texas 78759 (the “Property”).

In their Original Petition, Plaintiffs sought a declaratory judgment that the notice of foreclosure sale was invalid and brought a breach of contract claim that all notices required by the loan agreement were not sent prior to foreclosure.

They asked the court to issue a declaration that the promissory note involved in their case was fraudulent, that the assignment of the lien was void, that the pre-foreclosure notices were improper, that the signature on the notice of the foreclosure sale was fraudulent, and that Defendants lacked the authority to foreclose. They also sought damages and attorney’s fees.

Defendants timely removed the case to this federal court and filed a motion to dismiss under Rule 12(b)(6), arguing that Plaintiffs’ claims all failed as a matter of law.

Defendant Christiana Trust, acting as Trustee of ARLP Trust 5, filed a counterclaim seeking an order allowing judicial foreclosure. In addressing Defendants’ Motion to Dismiss, the undersigned issued a Report and Recommendation recommending that Plaintiffs’ claims all be dismissed.

Plaintiffs filed no objection to the Report and Recommendation and subsequently, the District Court accepted and adopted the Report and Recommendation and dismissed all Plaintiffs’ claims with prejudice.

The counterclaim was not addressed by the court at that time.

Shortly after Plaintiffs’ claims were dismissed, Defendant Christiana Trust moved the court for leave to amend to substitute U.S. Bank, as Christiana Trust had conveyed and sold to U.S. Bank all claims, demands, and causes of action in this matter.

Plaintiffs did not file a response to the motion, and it was granted as unopposed.

The style of the case was modified to reflect the substitution.

Now, Defendant U.S. Bank moves for summary judgment on its judicial foreclosure claim.

B. Relevant Facts

Plaintiff William Graham acquired the Property by Warranty Deed with Vendors Lien in 1987. Dkt. #19-2 at 2-3.

On November 8, 2007, Plaintiffs executed a Promissory Note (the “Note”) in the principal amount of $250,000.00. Dkt. #19-3 at 2-4.

Plaintiffs also executed a Homestead Lien Contract and Deed of Trust (“Deed of Trust,” and together with the Note, “Loan Agreement”) granting a security interest in the Property. Dkt. #19-4.

The Note was originally held by Bank of America. Id. At the time this proceeding was initiated it was held by Christiana Trust and now Defendant U.S. Bank is the current holder of the Note and beneficiary of the Deed of Trust. Dkt. #22-1; Dkt. #19-5.

Plaintiffs failed to make the payments under the terms of the Loan Agreement. Dkt. #19-6.

A notice of default and cure dated September 21, 2013 was mailed to Plaintiffs. Id. The default was not remedied. A notice of acceleration dated July 12, 2016 was mailed to Plaintiffs. Dkt. #19-7.

At the time of the filing of this Motion, Plaintiffs were 81 months behind on their payments and the total amount due and owing on the loan was at least $430,762.99 with interest accruing daily. Dkt. #19-8.

II. THE MOTION FOR SUMMARY JUDGMENT

A. Legal Standard

Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.

See FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323–25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007).

A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“A fact is material if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.”

Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quotations and footnote omitted).

When reviewing a summary judgment motion, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”

Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014) (alteration in original) (quoting Anderson, 477 U.S. at 255).

Further, a court may not make credibility determinations or weigh the evidence in ruling on a motion for summary judgment.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

Once the moving party has made an initial showing that there is no evidence to support the nonmoving party’s case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue.

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).

Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment.

Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).

Furthermore, the nonmovant is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim.

Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006).

Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.

“When the moving party has met its Rule 56[ ] burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings.”

Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010).

The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party’s claim. Id. (internal quotation marks omitted).

“This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.’”

Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).

“In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party.”

Duffie, 600 F.3d at 371.

When the movant bears the burden of proof on an issue, it must establish “beyond peradventure all of the essential elements of the claim . . . to warrant judgment in its favor.”

Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986).

B. Analysis

To foreclose under a security instrument in Texas with a power of sale, the lender must demonstrate that:

(1) a debt exists;

(2) the debt is secured by a lien created under Art. 16, § 50(a)(6) of the Texas Constitution;

(3) plaintiffs are in default under the note and security instrument;
and

(4) plaintiffs received notice of default and acceleration.

Huston v. U.S. Bank Nat. Ass’n, 988 F. Supp. 2d 732, 740 (S.D. Tex. 2013); TEX. PROP. CODE § 51.002.

Defendant U.S. Bank argues that because “[t]he summary judgment evidence conclusively establishes that the Loan Agreement is a home equity lien pursuant to Texas Constitution, Art. XVI, § 50(a)(6), that the loan is secured by a lien against the Property, that U.S. Bank is the payee of, and the owner and holder of the Note and Deed of Trust, that U.S. Bank is the mortgagee as that term is defined by § 51.0001(3) of the Texas Property Code, [Plaintiffs] failed to pay the amounts due under the Note when due, and [Plaintiffs] were provided the proper notice to cure the default and failed to do so, and [Plaintiffs] are in breach of their loan obligations,” Defendant is entitled to an order permitting judicial foreclosure on its lien. Dkt. #19 at 7.

Plaintiffs respond that Defendant U.S. Bank failed to offer evidence that U.S. Bank has authority to foreclose, that the affidavit of Duane Thomas offered in support of the Motion is unreliable, that an award of attorney’s fees is improper, that “all of the terms” constitutionally required “cannot be found in the documents before the court”, that federal courts follow the Federal Rules of Civil Procedure such that the Texas rules cited to by Defendant are inapplicable, and that any sale following judicial foreclosure is made by a marshal and not the sheriff or constable. Dkt. #21 at 2-4.

Importantly, Plaintiffs do not cite to any specific evidence in their response, nor do they contest that the debt exists, that the debt is secured by the required lien, that they are in default, or that they received actual notice of default and acceleration.

As to the affidavit of Duane Thomas, Plaintiffs’ arguments are unavailing. The affidavit specifically states that Duane Thomas is an employee of Fay Servicing LLC, the relevant mortgage servicer, and that the facts included in the affidavit are within his personal knowledge and true and correct.

The business records upon which he relies as an employee of the servicer and which he attaches to the affidavit in support are competent summary judgment evidence for U.S. Bank.

See U.S. v. Duncan, 919 F.2d 981, 986 (5th Cir. 1990) (holding that business records of one company may become business records of a second company without accumulation of inadmissible hearsay and “there is no requirement that the records be created by the business having custody of them”).

Moreover, “the primary emphasis of rule 803(6) is on the reliability or trustworthiness of the records sought to be introduced” and “[t]he district court has great latitude on the issue of trustworthiness.” Id. (internal citations omitted).

Further, Plaintiffs have offered no competing evidence that substantiates their assertion that the affidavit or the business records relied upon are unreliable.

As to U.S. Bank’s authority to foreclose, Plaintiffs’ arguments are similarly unavailing.

U.S. Bank has demonstrated its authority to foreclose as the holder of the Note and beneficiary of the Deed of Trust. The District Court previously concluded that Christiana Trust, the former holder of the Note, had the authority to foreclose.2

The Thomas affidavit avers that U.S. Bank is the current holder of the Note.

In response to Plaintiffs’ concerns that “there is an unexplained gap of ten years” in Defendant’s timeline and Defendant has not demonstrated any transfer from the original noteholder Bank of America to the current noteholder U.S. Bank, Defendant attached to its reply an assignment of November 24, 2014 from Bank of America to Christiana Trust, which was executed on December 9, 2014 and filed and recorded in the public records of Travis County on December 29, 2014, completes Defendant’s timeline. See Dkt. #22-1.

Plaintiffs did not seek leave to file a sur-reply to respond to this evidence, nor have they offered any competing evidence that substantiates their speculation that U.S. Bank lacks the authority to foreclose.

Accordingly, as described above, U.S. Bank has presented sufficient summary-evidence to establish each element of its judicial foreclosure counterclaim, and the undersigned recommends granting Defendant’s request for an order and judgment of foreclosure against Plaintiffs.

As to attorney’s fees, Plaintiffs’ arguments are again unavailing. Under general Texas contract law, a party may recover attorneys’ fees when such recovery is provided by statute or by contract.

However, home equity loans executed pursuant to Article 16, § 50(a)(6) of the Texas Constitution are non-recourse by definition and preclude contractual mortgagor liability.

2 Plaintiffs admitted in their Petition that the subject lien was assigned to Christiana Trust and the District Court dismissed with prejudice their claim that the Note’s endorsement had been forged, concluding that Christiana Trust had authority to foreclose. See Dkt. #1-1 at 3-4; Dkt. #13 at 9, Dkt. #14. With this history, Plaintiffs’ Response re- urging their speculation that Christiana Trust lacked authority to transfer the Note and Deed of Trust is misguided at best.

But while the mortgagor is not personally liable for attorney’s fees, the mortgagee may recover its attorney’s fees, if permitted under the relevant contract, against the mortgaged property after a foreclosure sale.

See e.g., In re Velazquez, 660 F.3d 893, 895–96 (5th Cir. 2011); Huston, 988 F. Supp. 2d at 741-42.

Here, the undersigned concludes that the terms of the Loan Agreement permit the recovery of attorney’s fees.

See, e.g., Dkt. #19-3 at 2.

After reviewing U.S. Bank’s evidence regarding attorney’s fees, the undersigned concludes that U.S. Bank has met the requirements for recovery of fees under the security instrument.

The rates charged by U.S. Bank’s counsel are reasonable hourly rates as compared to attorneys with similar experience in a similar market, and the number of hours expended are reasonable as compared to the time and labor required to perform similar legal services.

The undersigned recommends awarding attorney’s fees for work performed to date in the amount of $1912.50 as part of the note balance that may be satisfied through a foreclosure sale of the property.

See Dkt. #19-9 at 3.

RECOMMENDATION

For the foregoing reasons, the undersigned RECOMMENDS that Defendant’s Motion for Summary Judgment (Dkt. #19) be GRANTED.

OBJECTIONS

The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections.

See Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).

A party’s failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150–53 (1985);

Douglass v. United Services Automobile Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).

SIGNED July 16, 2018.

MARK LANE
UNITED STATES MAGISTRATE JUDGE

LIT’s Texas Federal Foreclosure Tracker is Now Following ‘Mandy’

It’s early stages for Mandy, who’s up against Dykema and PHH Mortgage Corporation in W.D. Texas Federal Court after removal from State Court.

De La Cruz v. The Bank of New York, W.D. Texas, Judge Lee Yeakel Now Presiding

We haven’t seen much of J Patrick Sutton, foreclosure defense counsel in Austin, Texas lately. Here, he was pitched against Mark D. Hopkins.

Picture this… Homeowner Costilla Shared a Lake View with Mark and Shelley Hopkins…

Once again in their own backyard of W.D. Tex., Hopkins Law PLLC lawyers Mark and Shelley Hopkins obtain a rapid foreclosure judgment.

PARTIES AND ATTORNEYS

Counter Defendant

Lisa L. Graham
REPRESENTED BY

William B. Gammon
(512) 472-8909
Fax: (888) 545-4279
Gammon Law Office, PLLC
8304 Zyle Road
Austin, TX 78737

ATTORNEY TO BE NOTICED

LEAD ATTORNEY

William Graham
REPRESENTED BY

William B. Gammon
(512) 472-8909
Fax: (888) 545-4279
Gammon Law Office, PLLC
8304 Zyle Road
Austin, TX 78737

ATTORNEY TO BE NOTICED

LEAD ATTORNEY

Counter Plaintiff

Christiana Trust
Terminated (Nov. 29, 2017)

REPRESENTED BY

Crystal Gee Gibson
(972) 340-7901
Fax: (972) 341-0734
Barrett Daffin Frappier Turner & Engel
4004 Belt Line Road
Suite 100
Addison, TX 75001

ATTORNEY TO BE NOTICED

LEAD ATTORNEY

TERMINATED: 11/29/2017 (Nov. 29, 2017)

Dustin C. George
(469) 518-4973
Fax: (469) 518-4972
ATTORNEY TO BE NOTICED

TERMINATED: 08/09/2017 (Aug. 9, 2017)

Mark Douglas Cronenwett
(214) 635-2650
Fax: (214) 635-2686
MacKie Wolf Zientz & Mann, P.C.
14160 N. Dallas Parkway
Suite 900
Dallas, TX 75254

ATTORNEY TO BE NOTICED

LEAD ATTORNEY

TERMINATED: 08/09/2017 (Aug. 9, 2017)

U.S. Bank National Association
REPRESENTED BY

Crystal Gee Gibson
(972) 340-7901
Fax: (972) 341-0734
Barrett Daffin Frappier Turner & Engel
4004 Belt Line Road
Suite 100
Addison, TX 75001

ATTORNEY TO BE NOTICED

LEAD ATTORNEY

Defendant
Christiana Trust
Terminated (Nov. 29, 2017)

REPRESENTED BY

Crystal Gee Gibson
(972) 340-7901
Fax: (972) 341-0734
Barrett Daffin Frappier Turner & Engel
4004 Belt Line Road
Suite 100
Addison, TX 75001

ATTORNEY TO BE NOTICED

LEAD ATTORNEY

TERMINATED: 11/29/2017 (Nov. 29, 2017)

Dustin C. George
(469) 518-4973
Fax: (469) 518-4972
ATTORNEY TO BE NOTICED

TERMINATED: 08/09/2017 (Aug. 9, 2017)

Mark Douglas Cronenwett
(214) 635-2650
Fax: (214) 635-2686
MacKie Wolf Zientz & Mann, P.C.
14160 N. Dallas Parkway
Suite 900
Dallas, TX 75254

ATTORNEY TO BE NOTICED

LEAD ATTORNEY

TERMINATED: 08/09/2017 (Aug. 9, 2017)

Fay Servicing, LLC
REPRESENTED BY

Crystal Gee Gibson
(972) 340-7901
Fax: (972) 341-0734
Barrett Daffin Frappier Turner & Engel
4004 Belt Line Road
Suite 100
Addison, TX 75001

ATTORNEY TO BE NOTICED

LEAD ATTORNEY

Dustin C. George
(469) 518-4973
Fax: (469) 518-4972
ATTORNEY TO BE NOTICED

TERMINATED: 08/09/2017 (Aug. 9, 2017)

Mark Douglas Cronenwett
(214) 635-2650
Fax: (214) 635-2686
MacKie Wolf Zientz & Mann, P.C.
14160 N. Dallas Parkway
Suite 900
Dallas, TX 75254

ATTORNEY TO BE NOTICED

LEAD ATTORNEY

TERMINATED: 08/09/2017 (Aug. 9, 2017)

Mackie, Wolf & Zientz, P.C.
U.S. Bank National Association
REPRESENTED BY

Crystal Gee Gibson
(972) 340-7901
Fax: (972) 341-0734
Barrett Daffin Frappier Turner & Engel
4004 Belt Line Road
Suite 100
Addison, TX 75001

ATTORNEY TO BE NOTICED

LEAD ATTORNEY

Plaintiff

Lisa L. Graham
REPRESENTED BY

William B. Gammon
(512) 472-8909
Fax: (888) 545-4279
Gammon Law Office, PLLC
8304 Zyle Road
Austin, TX 78737

ATTORNEY TO BE NOTICED

LEAD ATTORNEY

William Graham
REPRESENTED BY

William B. Gammon
(512) 472-8909
Fax: (888) 545-4279
Gammon Law Office, PLLC
8304 Zyle Road
Austin, TX 78737

ATTORNEY TO BE NOTICED

LEAD ATTORNEY

General Docket
United States Court of Appeals for the Fifth Circuit
Court of Appeals Docket #: 18-50738 Docketed: 09/10/2018
Termed: 03/07/2019
Nature of Suit: 4220 Foreclosure
William Graham v. U.S. Bank National Association
Appeal From: Western District of Texas, Austin
Fee Status: Fee Paid
Case Type Information:
     1) Private Civil Diversity
     2) Private
     3)
Originating Court Information:
     District: 0542-1 : 1:17-CV-292
     Originating Judge: Lee Yeakel, U.S. District Judge
     Date Filed: 04/05/2017
     Date NOA Filed:      Date Rec’d COA:
     09/06/2018      09/07/2018
Prior Cases:
     None
Current Cases:
     None
Panel Assignment:      Not available

 

William Graham
Plaintiff – Appellant
William Bernell Gammon
Direct: 512-444-4529
Email: firm@gammonlawoffice.com
Fax: 888-545-4279
[COR LD NTC Retained]
Gammon Law Office, P.L.L.C.
Suite 400
111 Congress Avenue
Austin, TX 78701
Lisa L. Graham
Plaintiff – Appellant
William Bernell Gammon
Direct: 512-444-4529
[COR LD NTC Retained]
(see above)
v.
U.S. Bank National Association, as legal title trustee for Truman 2016 SC6 title trust
Defendant – Appellee
Mark D. Hopkins
Direct: 512-600-4320
Email: mark@hopkinslawtexas.com
Fax: 512-600-4326
[COR LD NTC Retained]
Hopkins Law, P.L.L.C.
Suite 110
3 Lakeway Centre Court
Austin, TX 78734Crystal G. Gibson
Direct: 972-340-7901
Email: crystalr@bdfgroup.com
Fax: 973-341-0734
[COR NTC Retained]
Barrett, Daffin, Frappier, Turner & Engel, L.L.P.
Suite 100
4004 Belt Line Road
Addison, TX 75001Shelley Luan Hopkins
Direct: 512-600-4323
Email: shelley@hopkinslawtexas.com
[COR NTC Retained]
Hopkins Law, P.L.L.C.
Suite 110
3 Lakeway Centre Court
Austin, TX 78734

William Graham; Lisa L. Graham,

Plaintiffs – Appellants

v.

U.S. Bank National Association, as legal title trustee for Truman 2016 SC6 title trust,

Defendant – Appellee

09/10/2018  Open Document
2 pg, 154.4 KB
PRIVATE CIVIL DIVERSITY CASE docketed. NOA filed by Appellants Mr. Lisa L. Graham and Mr. William Graham [18-50738] (RAJ) [Entered: 09/10/2018 10:48 AM]
09/12/2018  Open Document
3 pg, 155.64 KB
INITIAL CASE CHECK by Attorney Advisor complete, Action: Case OK to Process. [8873134-2] Initial AA Check Due satisfied. [18-50738] (RAJ) [Entered: 09/12/2018 04:26 PM]
09/12/2018 ELECTRONIC RECORD ON APPEAL REQUESTED FROM DISTRICT COURT for 1:17-CV-292. Electronic ROA due on 09/27/2018. [18-50738] (RAJ) [Entered: 09/12/2018 04:29 PM]
09/14/2018  Open Document
1 pg, 170.23 KB
APPEARANCE FORM received from Mr. William Bernell Gammon for Mr. Lisa L. Graham and Mr. William Graham for the court’s review. Lead Counsel? Yes. [18-50738] (William Bernell Gammon ) [Entered: 09/14/2018 12:48 PM]
09/17/2018  Open Document
1 pg, 157.53 KB
APPEARANCE FORM for the court’s review. Lead Counsel? Yes. [18-50738] (Mark D. Hopkins ) [Entered: 09/17/2018 01:59 PM]
09/17/2018 APPEARANCE FORM FILED by Attorney William Bernell Gammon for Appellant Lisa L. Graham in 18-50738, Attorney William Bernell Gammon for Appellant William Graham in 18-50738 [18-50738] (CB) [Entered: 09/17/2018 03:27 PM]
09/18/2018  Open Document
1 pg, 169.96 KB
APPEARANCE FORM for the court’s review. Lead Counsel? No. [18-50738] (Shelley Luan Hopkins ) [Entered: 09/18/2018 03:17 PM]
09/19/2018  Open Document
1 pg, 139.98 KB
Attorney Mark D. Hopkins is advised to resubmit an appearance form. Reason: No signature on appearance form. [18-50738] (BF) [Entered: 09/19/2018 08:32 AM]
09/19/2018  Open Document
1 pg, 134.88 KB
APPEARANCE FORM for the court’s review. Lead Counsel? Yes. [18-50738] (Mark D. Hopkins ) [Entered: 09/19/2018 10:52 AM]
09/19/2018  Open Document
1 pg, 135.16 KB
APPEARANCE FORM for the court’s review. Lead Counsel? No. [18-50738] (Shelley Luan Hopkins ) [Entered: 09/19/2018 10:52 AM]
09/19/2018  Open Document
1 pg, 146.21 KB
Attorney Shelley Hopkins is advised to resubmit an appearance form. Reason: No signature on appearance form. [18-50738] (LBM) [Entered: 09/19/2018 01:25 PM]
09/20/2018  Open Document
1 pg, 611.04 KB
APPEARANCE FORM for the court’s review. Lead Counsel? No. [18-50738] (Crystal G. Gibson ) [Entered: 09/20/2018 09:22 AM]
09/20/2018 APPEARANCE FORM FILED by Attorney(s) Mark D. Hopkins for party(s) Appellee U.S. Bank National Association, in case 18-50738 [18-50738] (CB) [Entered: 09/20/2018 02:39 PM]
09/20/2018 APPEARANCE FORM FILED by Attorney(s) Shelley Luan Hopkins for party(s) Appellee U.S. Bank National Association, in case 18-50738 [18-50738] (CB) [Entered: 09/20/2018 02:41 PM]
09/27/2018 APPEARANCE FORM FILED by Attorney Crystal G. Gibson for Appellee U.S. Bank National Association in 18-50738 [18-50738] (MRW) [Entered: 09/27/2018 12:26 PM]
10/09/2018 ELECTRONIC RECORD ON APPEAL FILED. Exhibits on File in District Court? No. Electronic ROA deadline satisfied. [18-50738] (DDL) [Entered: 10/08/2018 03:36 PM]
10/09/2018  Open Document
4 pg, 163.18 KB
BRIEFING NOTICE ISSUED A/Pet’s Brief Due on 11/19/2018 for Appellants Lisa L. Graham and William Graham. [18-50738] (DDL) [Entered: 10/08/2018 03:36 PM]
11/19/2018 EXTENSION RECEIVED for Appellants Mr. Lisa L. Graham and Mr. William Graham. Extension Granted to and including 12/19/2018. Reason: No Opposition Stated. A/Pet’s Brief deadline updated to 12/19/2018 for Appellants Lisa L. Graham and William Graham [18-50738] (MEG) [Entered: 11/19/2018 10:32 AM]
12/18/2018  Open Document
19 pg, 305.95 KB
APPELLANT’S BRIEF FILED # of Copies Provided: 0
A/Pet’s Brief deadline satisfied. Appellee’s Brief due on 01/17/2019 for Appellee U.S. Bank National Association. Paper Copies of Brief due on 12/26/2018 for Appellants Lisa L. Graham and William Graham. [18-50738]
REVIEWED AND/OR EDITED – The original text prior to review appeared as follows: APPELLANT’S BRIEF FILED by Mr. Lisa L. Graham and Mr. William Graham. Date of service: 12/18/2018 via email – Attorney for Appellant: Gammon; Attorney for Appellees: Gibson, Hopkins, Hopkins [18-50738] (William Bernell Gammon ) [Entered: 12/18/2018 01:33 PM]
12/18/2018  Open Document
39 pg, 1.09 MB
RECORD EXCERPTS FILED. # of Copies Provided: 0 Paper Copies of Record Excerpts due on 12/26/2018 for Appellants Lisa L. Graham and William Graham. [18-50738]
REVIEWED AND/OR EDITED – The original text prior to review appeared as follows: APPENDIX FILED by Appellants Mr. Lisa L. Graham and Mr. William Graham Date of Service: 12/18/2018 via email – Attorney for Appellant: Gammon; Attorney for Appellees: Gibson, Hopkins, Hopkins [18-50738] (William Bernell Gammon ) [Entered: 12/18/2018 01:37 PM]
01/07/2019 Paper copies of Appellant Brief filed by Appellants Mr. William Graham and Mr. Lisa L. Graham in 18-50738 received. Paper copies match electronic version of document? Yes # of Copies Provided: 7. Paper Copies of Brief due deadline satisfied. [18-50738] (SBS) [Entered: 01/10/2019 10:25 AM]
01/07/2019 Paper copies of Record Excerpts filed by Appellants Mr. William Graham and Mr. Lisa L. Graham in 18-50738 received. Paper copies match electronic version of document? Yes # of Copies Provided: 4. Paper Copies of Record Excerpts due deadline satisfied. [18-50738] (SBS) [Entered: 01/10/2019 10:28 AM]
01/09/2019  Open Document
33 pg, 438.51 KB
APPELLEE’S BRIEF FILED # of Copies Provided: 0 E/Res’s Brief deadline satisfied. Reply Brief due on 01/30/2019 for Appellants Lisa L. Graham and William Graham. Paper Copies of Brief due on 01/16/2019 for Appellee U.S. Bank National Association. [18-50738] REVIEWED AND/OR EDITED – The original text prior to review appeared as follows: APPELLEE’S BRIEF FILED by U.S. Bank National Association. Date of service: 01/09/2019 via email – Attorney for Appellant: Gammon; Attorney for Appellees: Gibson, Hopkins, Hopkins [18-50738] (Mark D. Hopkins ) [Entered: 01/09/2019 01:27 PM]
01/16/2019 Paper copies of Appellee Brief filed by Appellee U.S. Bank National Association in 18-50738 received. Paper copies match electronic version of document? Yes # of Copies Provided: 7. Paper Copies of Brief due deadline satisfied. [18-50738] (CSG) [Entered: 01/16/2019 10:32 AM]
02/06/2019 BRIEFING COMPLETE.Reply Brief deadline canceled [18-50738] (MVM) [Entered: 02/06/2019 07:40 AM]
03/07/2019  Open Document
3 pg, 135.54 KB
UNPUBLISHED OPINION FILED. [18-50738 Affirmed] Judge: JES, Judge: JLW, Judge: DRW. Mandate issue date is 03/29/2019 [18-50738] (KGL) [Entered: 03/07/2019 11:15 AM]
03/07/2019  Open Document
1 pg, 34.6 KB
JUDGMENT ENTERED AND FILED. Costs Taxed Against: Appellants. [18-50738] (KGL) [Entered: 03/07/2019 11:19 AM]
03/13/2019  Open Document
8 pg, 281.43 KB
PETITION for rehearing [9004236-2] Number of Copies: 0. Mandate issue date canceled.. Paper Copies of Rehearing due on 03/19/2019 for Appellants Lisa L. Graham and William Graham.. Date of Service: 03/13/2019 [18-50738]
REVIEWED AND/OR EDITED – The original text prior to review appeared as follows: PETITION filed by Appellants Mr. Lisa L. Graham and Mr. William Graham for rehearing [9004236-2]. Date of Service: 03/13/2019 via email – Attorney for Appellant: Gammon; Attorney for Appellees: Gibson, Hopkins, Hopkins [18-50738] (William Bernell Gammon ) [Entered: 03/13/2019 03:47 PM]
03/18/2019 Paper copies of Petition for rehearing filed by Appellants Mr. William Graham and Mr. Lisa L. Graham in 18-50738 received. Paper copies match electronic version of document? Yes # of Copies Provided: 4. Paper Copies of Rehearing due deadline satisfied. [18-50738] (CMB) [Entered: 03/19/2019 09:21 AM]
03/27/2019  Open Document
2 pg, 235.47 KB
COURT ORDER denying Petition for rehearing filed by Appellants Mr. William Graham and Mr. Lisa L. Graham [9004236-2] Mandate issue date is 04/04/2019 [18-50738] (CMB) [Entered: 03/27/2019 03:26 PM]
04/04/2019  Open Document
3 pg, 197.97 KB
MANDATE ISSUED. Mandate issue date satisfied. [18-50738] (AGL) [Entered: 04/04/2019 08:08 AM]

ATTORNEY FEE AFFIDAVIT

Before me, the undersigned authority , personally appeared Affiant, who, being by me duly sworn, deposed as follows:

” My name is Crystal G. Roach (“Affiant”), I am of sound mind, am competent to make this Affidavit , and have personal knowledge of the facts herein stated, which are true and conect:

“I am a licensed attorney practicing in Texas. I handle cases in Travis County and counties throughout Texas.

I am familiar with reasonable attorney’s fees for cases wrongful foreclosure and suits of this nature and a reasonable attorney fee in this matter would be $1912.50 for prosecution of this matter to Judgment.

This amount is both reasonable in nature and necessary as a result of the litigation.

This number represents actual attorneys’ fees at the billable hour rate of $225.00 per hour, which were incurred by Defendant Plaintiff U.S. Bank National Association as Legal Title Trustee for Truman 2016 SC6 Title Trust (” Defendant”) through the course of this litigation.

Defendant incurred these fees in all or in part by the following acts taken by its attorneys:

Draft Motion to Substitute Counsel and coordinate approval with former law firm and obtain order substituting counsel .80

Review litigation files and court dockets as well as pleadings to determine claims and status of case 1.0

Review of court’ s order denying motion to remand and order granting motion to dismiss .40

Draft Motion to Substitute Defendant and Motion for Summary Judgment on Counter claim; draft client affidavit in support of same 4.20

Review of Order Substituting Party .10

Defendant’s counsel spent 6.5 hours at $225.00 per hour on this case totaling $1462.50.

Counsel will spend an additional 2 hours to finalize case to judgment.

Accordingly, Plaintiff is asking for an additional $450.00 in fees which totals $1912.50.

Defendant also requests an additional $8,500.00 upon appeal of the judgment to the Court of Appeals

and $15,000.00 for appeal to the Supreme Court, to be awarded if Defendant prevails on appeal.”

Further Affiant sayeth not.

Crystal Roach

Sworn to and subscribed before me on the 6th day of December, 2017.

SUSAN LUCERO
ID# 823700
Expires 09/19/2021
Notary Public, State of Texas

Notary Public, BDF Law Group

Affirmed. See Rule 47.6. “Love It” Said Shelley Hopkins for BDF Hopkins.
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