U.S. Bank Trust National Association, as Trustee for RASC 2006-EMX5 v. Ohio Gravy Biscuit, Inc., an Ohio Corporation, as Trustee for the Love Bird 218 Land Trust
District Court, E.D. Texas
OCT 20, 2022 | REPUBLISHED BY LIT: OCT 21, 2022
BDF Hopkins files to Dismiss case WITHOUT Prejudice on Dec. 2, Yet they Wanted a min. of $150k outta the home...
JOINT STIPULATION OF DISMISSAL WITHOUT PREJUDICE
On this the 1st day of December 2022, Plaintiff U.S. Bank Trust National Association, as Trustee for RASC 2006-EMX5 (“Plaintiff”) and Defendant Ohio Gravy Biscuit, Inc., an Ohio Corporation, as Trustee for the Love Bird 218 Land Trust (“Ohio Gravy Biscuit” or “Defendant”) (collectively, the “Parties”), by and through their undersigned counsel, hereby stipulate that pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i), all claims and causes of action asserted by Plaintiff against Defendant are dismissed without prejudice.
By: /s/ Shelley L. Hopkins
Shelley L. Hopkins
State Bar No. 24036497
HOPKINS LAW, PLLC
3 Lakeway Centre Ct., Suite 110
Austin, Texas 78734
BARRETT DAFFIN FRAPPIER
TURNER & ENGEL, LLP –
Of Counsel ShelleyH@bdfgroup.com
Robert D. Forster, II
State Bar No. 24048470
BARRETT DAFFIN FRAPPIER TURNER & ENGEL, LLP
4004 Belt Line Road, Ste. 100
Addison, Texas 75001
Attorneys for Plaintiff
By: /s/ Kenneth S. Harter (w/ permission)
Kenneth S. Harter
State Bar No. 09155300
Law Office of Kenneth S. Harter
5080 Spectrum Dr, Suite 100-E
Attorneys for Defendant
CERTIFICATE OF SERVICE
I hereby certify that on this 2nd day of December 2022, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF filing system, and will send a true and correct copy to the following:
Kenneth S. Harter
Law Offices of Kenneth S. Harter
5080 Spectrum Dr. Suite 1000-E
Addison, Texas 75001
Attorneys for Defendants
/s/ Shelley L. Hopkins
Shelley L. Hopkins
U.S. District Court
Eastern District of TEXAS [LIVE] (Sherman)
CIVIL DOCKET FOR CASE #: 4:22-cv-00798-ALM-CAN
|U.S. Bank Trust National Association, as Trustee for RASC 2006-EMX5 v. Ohio Gravy Biscuit, Inc., an Ohio Corporation, as Trustee for the Love Bird 218 Land Trust
Assigned to: District Judge Amos L. Mazzant, III
Referred to: Magistrate Judge Christine A. Nowak
Cause: 28:1332 Diversity-(Citizenship)
|Date Filed: 09/16/2022
Jury Demand: None
Nature of Suit: 290 Real Property: Other
|Date Filed||#||Docket Text|
|10/20/2022||3||SUMMONS Issued as to Ohio Gravy Biscuit, Inc., an Ohio Corporation, as Trustee for the Love Bird 218 Land Trust. (mcg) (Entered: 10/20/2022)|
|11/21/2022||4||MOTION to Dismiss for Lack of Jurisdiction by Ohio Gravy Biscuit, Inc., an Ohio Corporation, as Trustee for the Love Bird 218 Land Trust. (Harter, Kenneth) (Entered: 11/21/2022)|
|11/30/2022||5||ORDER GOVERNING PROCEEDINGS. Rule 16 management conference set for 1/9/2023 at 2:30 PM in Ctrm A01 (Sherman – Annex) before Magistrate Judge Christine A. Nowak. Rule 26 Meeting Joint Report due by 12/27/2022. Signed by Magistrate Judge Christine A. Nowak on 11/30/2022. (baf, ) (Entered: 11/30/2022)|
|12/02/2022||6||STIPULATION of Dismissal by U.S. Bank Trust National Association, as Trustee for RASC 2006-EMX5. (Hopkins, Shelley) (Entered: 12/02/2022)|
|PACER Service Center|
Just finished watchin’ @SupremeCourt_TX oral argument in the critically important case for homeowners, refi loans and Texas Const. in @PNCBank v Howard. Here’s our initial thought, with more to follow on our blog.@statebaroftexas @uscourts @TXLaw360 @bradleylegal #txlege #home pic.twitter.com/mbmOBq7KhG
— lawsinusa (@lawsinusa) December 1, 2022
Residential Home at 218 Love Bird Ln valuation at 10/22/2022 by Zillow, $549k
Property purchased at tax foreclosure auction for $14k (Apr. 3, 2018)
Sold for $348k (remarkably, 3 days after BDF Hopkins file suit in Federal Court, Sep 19, 2022 – according to Blockshopper)
Tax records show deed sale recorded Sep 18, 2022, 2 days after BDF Hopkins file suit in Federal Court.
It smells like a fraudulent transfer to take all the equity out of the home.
BDF Hopkins complaint seeks monetary relief of “at least $150k” out of the home.
Blockshopper (Y'all Can't Block LIT, just sayin')
Lookin’ for Luv: Bandit Lawyer Shelley Luan Hopkins Snaps a Foreclosure into Federal Court, Alone https://t.co/1PH3159QeM
— lawsinusa (@lawsinusa) October 22, 2022
U.S. Bank Nat’Lass’N v. Ohio Gravy Biscuit, Inc.,
(Tex. App. July 27, 2017)
BONNIE SUDDERTH JUSTICE
FROM THE 393RD DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 16-00399-393
See Tex. R. App. P. 47.4.
Appellant U.S. Bank National Association, as Trustee Successor in Interest to Bank of America, National Association, as Trustee as Successor by Merger to LaSalle Bank National Association as Trustee for Certificate Holders of Bear Stearns Asset Backed Securities I Trust, 2007-HE3, Asset Backed Certificates, Series 2007-HE3 (Bank) owned a deed of trust on property acquired by Appellee Ohio Gravy Biscuit, Inc., an Ohio Corporation, as Trustee for the Teal Cove 2007 Land Trust (Biscuit).
Biscuit sued under the Uniform Declaratory Judgments Act for a ruling that Bank’s deed of trust had been discharged, filing an original petition and then a first amended petition. In both petitions, Biscuit asked the trial court to render judgment that the deed of trust claimed by Bank “has been discharged.”
Biscuit moved for a no-answer default judgment, and the trial court entered a judgment in which it quieted title to the property in and to Biscuit and declared Bank’s lien “void and is of no force and effect.” The trial court further pronounced that Biscuit was the property’s owner “and holds title thereto not subject to any lien or encumbrance, save for taxes and assessments.” [Emphasis added.] Several months later, Bank filed a notice of restricted appeal. See Tex. R. App. P. 26.1(c).
A restricted appeal is available to a party who did not participate in the hearing that resulted in the judgment complained of, provided that the party brings the appeal within six months after the trial court signed the judgment and that error is apparent on the face of the record. Mandel v. Lewisville ISD, 445 S.W.3d 469, 474 (Tex. App.—Fort Worth 2014, pet. denied) (listing restricted appeal elements); see Tex. R. App. P. 30.
In its third point, Bank complains that the trial court erred by, among other things, ruling that the property was “not subject to any lien or encumbrances” when Biscuit failed to plead that there were no other liens or encumbrances.
A judgment must be based upon pleadings, and a plaintiff may not sustain a default judgment that grants relief in excess of that requested by him. See U.S. Nat’l Bank Ass’n v. Johnson, No. 01-10-00837-CV, 2011 WL 6938507, at *2-3 (Tex. App.—Houston [1st Dist.] Dec. 30, 2011, no pet.) (mem. op.) (citing Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979), and holding that the trial court erred when it quieted title to the house in Johnson as against USNBA and thus granted more relief than Johnson had requested); Binder v. Joe, 193 S.W.3d 29, 33 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“By granting more relief than Danny requested in his petition, the trial court erred, and that error is apparent on the face of the record.”). Accordingly, because the trial court granted more relief than Biscuit requested, error is apparent on the face of the record, and we sustain Bank’s third point without reaching its remaining two points. See Tex. R. App. P. 47.1.
Having sustained Bank’s third point, we reverse the trial court’s judgment and remand this case to the trial court for further proceedings. See Tex. R. App. P. 43.2(d).
/s/ Bonnie Sudderth
JUSTICE PANEL: SUDDERTH, KERR, and PITTMAN, JJ.
DELIVERED: July 27, 2017
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