HSBC Bank USA, National Association As Trustee For Mastr Reperforming Loan Trust 2005-2 Mortgage Pass-Through Certificates v. Kelly
(4:20-cv-00976)
District Court, S.D. Texas
AUG 4, 2021 | REPUBLISHED BY LIT: AUG 17, 2021
No Confer, No Problem
Default signed off and $6k+ in attorney fees to Mackie Wolf by Judge Hanen.
WOW! NO ATTEMPT MADE TO CONFER.
“ If a conference was not held, the certificate must explain why it was not possible to confer, in which event the motion will be presumed to be opposed.” Valderas v. City of Lubbock, 937 F.3d 384, 391 n.11 (5th Cir. 2019)
CERTIFICATE OF CONFERENCE
The undersigned certifies that no Defendants have filed an answer and/or otherwise appeared in this action. Therefore, a certificate of conference is not necessary.
/s/ Vivian N. Lopez
VIVIAN N. LOPEZ
That’s wrong, especially since you’re dealing with pro se litigants ages from as young as 21 years old. It was possible to confer. You have to try and reach out to them. The rule does not say ‘it is not necessary’.
Plaintiff HSBC Bank USA, National Association as Trustee for Mastr Reperforming Loan Trust 2005-2 Mortgage Pass-Through Certificates (“Plaintiff”) files this Motion to Cancel Initial Scheduling Conference Hearing, and respectfully shows as follows:
1. On March 17, 2020, Plaintiff filed its Original Complaint against Defendants Jessica Kelly, Kiersten Kelly and Clayton Kelly (“Defendants”) seeking and order for foreclosure on the real property and improvements commonly known as 15818 Oakendell Drive, Houston, TX 77084 (“Property”) due to an event of default on the subject loan. (ECF Doc. No. 1)
2. Plaintiff completed service on Defendants Clayton Kelly and Kiersten Kelly on July 28, 2020. (ECF Nos. 11 and 12.) Plaintiff completed service on Defendant Jessica Kelly on July 31, 2020. (ECF no. 10.) Defendants have not answered or otherwise appeared in this action. On October 29, 2020, Plaintiff sought an entry of default from the Clerk and a default judgment against all Defendants. (ECF Doc. Nos. 13 and 14.)
3. On April 12, 2021, this Court entered an order abating this case until May 24, 2021, upon Plaintiff’s request. Per the order, upon expiration of the abatement period, the case would be reinstated automatically without further order from the Court. (ECF No. 25.)
4. The abatement period has expired and now this case is considered automatically reinstated. Default has been entered against Defendants, but Plaintiff’s Motion for Default Judgment remains pending adjudication from this Court. (ECF Doc. No. 27.) This matter is currently set for an initial scheduling conference on August 11, 2021 (ECF Doc. No. 28.)
5. In light of Defendants’ failure to appear, Plaintiff is not able to confer with them or prepare a Joint Discovery Plan. Further, if the Court eventually grants Plaintiff’s Motion for Default Judgment, the need for a Joint Discovery Plan will be moot.
6. Accordingly, for the reasons stated above and since Plaintiff’s Motion for Default Judgment against Defendants is still currently under consideration of the Court, Plaintiff requests that the Court cancel the referenced setting until the Court evaluates Plaintiff’s request for default.
WANTED for Crimes Against the Elderly.
Chief Judge Priscilla R. Owen, 5th Circuit.https://t.co/3Sglza9AAR #FBI pic.twitter.com/qnwf9XX3UL— LawsInTexas (@lawsintexasusa) August 16, 2021
WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that the Court cancel the initial scheduling conference scheduled for August 11, 2021 and to grant Plaintiff any other relief at law or in equity to which Plaintiff is entitled.
Respectfully submitted,
By: /s/ Vivian N. Lopez
MARK D. CRONENWETT
Texas Bar No. 00787303
Southern District Admission #21340
mcronenwett@mwzmlaw.com
VIVIAN N. LOPEZ
State Bar No. PR20818
Southern District Admission #3504182
vlopez@mwzmlaw.com
MACKIE WOLF ZIENTZ & MANN, P. C.
14160 North Dallas Parkway, Suite 900
Dallas, TX 75254
Telephone: (713) 730-3218
Facsimile: (214) 635-2686
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF CONFERENCE
The undersigned certifies that no Defendants have filed an answer and/or otherwise appeared in this action. Therefore, a certificate of conference is not necessary.
/s/ Vivian N. Lopez
VIVIAN N. LOPEZ
CERTIFICATE OF SERVICE
The undersigned certifies that on August 4, 2021 a true and correct copy of the foregoing document was delivered to the following Defendants in the manner described below:
Via U.S. Mail
Jessica Kelly
4311 Jura Drive,
Houston, TX 77084
Via U.S. Mail
Clayton Kelly
4903 Cheena Drive,
Houston, TX 77096
Via U.S. Mail
Kiersten Kelly
4903 Cheena Drive,
Houston, TX 77096
/s/ Vivian N. Lopez
VIVIAN N. LOPEZ
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U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:20-cv-00976
| HSBC Bank USA, National Association As Trustee For Mastr Reperforming Loan Trust 2005-2 Mortgage Pass-Through Certificates v. Kelly et al Assigned to: Judge Andrew S Hanen Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 03/17/2020 Date Terminated: 08/04/2021 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Plaintiff | ||
| HSBC Bank USA, National Association As Trustee For Mastr Reperforming Loan Trust 2005-2 Mortgage Pass-Through Certificates | represented by | Samin Hessami Mackie Wolf et al 5177 Richmond Ave. Ste 1230 Houston, TX 77056 214-635-2650 Email: shessami@mwzmlaw.com ATTORNEY TO BE NOTICEDVivian Nahir Lopez Mackie Wolf Zientz & Mann, P.C. 14160 North Dallas Parkway, Suite 900 Dallas, TX 75254 214-635-2662 Email: vlopez@mwzmlaw.com ATTORNEY TO BE NOTICEDMark Douglas Cronenwett Mackie Wolf Zientz & Mann, P.C. 14160 N. Dallas Parkway, Ste. 900 Dallas, TX 75254 214-635-2650 Fax: 214-635-2686 Email: mcronenwett@mwzmlaw.com ATTORNEY TO BE NOTICED |
| V. | ||
| Defendant | ||
| Jessica Kelly | ||
| Defendant | ||
| Kiersten Kelly | ||
| Defendant | ||
| Clayton Kelly | ||
| Date Filed | # | Docket Text |
|---|---|---|
| 03/17/2020 | 1 | COMPLAINT against All Defendants (Filing fee $ 400 receipt number 0541-24427906) filed by HSBC Bank USA, National Association As Trustee For Mastr Reperforming Loan Trust 2005-2 Mortgage Pass-Through Certificates. (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet)(Cronenwett, Mark) (Entered: 03/17/2020) |
| 03/17/2020 | 2 | CERTIFICATE OF INTERESTED PARTIES by HSBC Bank USA, National Association As Trustee For Mastr Reperforming Loan Trust 2005-2 Mortgage Pass-Through Certificates, filed.(Hessami, Samin) (Entered: 03/17/2020) |
| 03/17/2020 | 3 | Request for Issuance of Summons as to All Defendants, filed.(Hessami, Samin) (Entered: 03/17/2020) |
| 03/18/2020 | 4 | ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 8/25/2020 at 10:00 AM in Courtroom 704 before Magistrate Judge Frances H Stacy(Signed by Judge Andrew S Hanen) Parties notified.(ckrus, 4) (Entered: 03/18/2020) |
| 03/18/2020 | 5 | Docket in Error – Summons Issued as to Clayton Kelly. Issued summons delivered to plaintiff by NEF, filed.(hlerma, 4) Modified on 3/18/2020 (hlerma, 4). (Entered: 03/18/2020) |
| 03/18/2020 | 6 | Summons Issued as to Clayton Kelly, Jessica Kelly, Kiersten Kelly. Issued summons delivered to plaintiff by NEF, filed.(hlerma, 4) (Entered: 03/18/2020) |
| 07/27/2020 | 7 | MOTION for Extension of Time (Extend Deadline to Complete Service and Continue Initial Conference), by HSBC Bank USA, National Association As Trustee For Mastr Reperforming Loan Trust 2005-2 Mortgage Pass-Through Certificates, filed. Motion Docket Date 8/17/2020. (Attachments: # 1 Proposed Order)(Hessami, Samin) (Entered: 07/27/2020) |
| 08/03/2020 | 8 | NOTICE of Referral of Motion to Magistrate Judge Frances H. Stacy re 7 MOTION for Extension of Time (Extend Deadline to Complete Service and Continue Initial Conference),, filed. (rhawkins) (Entered: 08/03/2020) |
| 08/05/2020 | 9 | ORDER Granting 7 MOTION for Extension of Time to Extend Deadline to Complete Service and Continue Initial Conference. Plaintiff shall have ninety (90) days from the date this Order is entered to effect service….***Initial Rule 16 Scheduling Conference reset for 12/2/2020 at 10:00 AM in by video before Magistrate Judge Frances H Stacy. (Signed by Magistrate Judge Frances H Stacy) Parties notified.(sanderson, 4) (Entered: 08/05/2020) |
| 08/06/2020 | 10 | RETURN of Service of SUMMONS Executed as to Jessica Kelly served on 7/31/2020, answer due 8/21/2020, filed.(Hessami, Samin) (Entered: 08/06/2020) |
| 08/06/2020 | 11 | RETURN of Service of SUMMONS Executed as to Clayton Kelly served on 7/28/2020, answer due 8/18/2020, filed.(Hessami, Samin) (Entered: 08/06/2020) |
| 08/06/2020 | 12 | RETURN of Service of SUMMONS Executed as to Kiersten Kelly served on 7/28/2020, answer due 8/18/2020, filed.(Hessami, Samin) (Entered: 08/06/2020) |
| 10/29/2020 | 13 | REQUEST for Entry of Default against All Defendants by HSBC Bank USA, National Association As Trustee For Mastr Reperforming Loan Trust 2005-2 Mortgage Pass-Through Certificates, filed. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Hessami, Samin) (Entered: 10/29/2020) |
| 10/29/2020 | 14 | MOTION for Default Judgment against All Defendants by HSBC Bank USA, National Association As Trustee For Mastr Reperforming Loan Trust 2005-2 Mortgage Pass-Through Certificates, filed. Motion Docket Date 11/19/2020. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Hessami, Samin) (Entered: 10/29/2020) |
| 11/23/2020 | 15 | Order Resetting Conference. Initial Conference set for 12/2/2020 at 10:00 AM before Magistrate Judge Frances H Stacy(Signed by Magistrate Judge Frances H Stacy) Parties notified.(bwhite, 4) (Entered: 11/23/2020) |
| 11/23/2020 | 16 | MOTION to Cancel Initial Scheduling Conference Hearing, by HSBC Bank USA, National Association As Trustee For Mastr Reperforming Loan Trust 2005-2 Mortgage Pass-Through Certificates, filed. Motion Docket Date 12/14/2020. (Attachments: # 1 Proposed Order)(Lopez, Vivian) (Entered: 11/23/2020) |
| 11/24/2020 | 17 | NOTICE of Referral of Motion to Magistrate Judge Frances H. Stacy re 16 MOTION to Cancel Initial Scheduling Conference Hearing,, filed. (rhawkins) (Entered: 11/24/2020) |
| 11/30/2020 | 18 | NOTICE of Resetting. Parties notified. Initial Conference set for 2/4/2021 at 10:00 AM before Magistrate Judge Frances H Stacy, filed. (bwhite, 4) (Entered: 11/30/2020) |
| 01/25/2021 | 19 | NOTICE of Resetting. Parties notified. Initial Conference set for 4/14/2021 at 10:00 AM before Magistrate Judge Frances H Stacy, filed. (bwhite, 4) (Entered: 01/25/2021) |
| 01/26/2021 | 20 | MOTION to Abate by HSBC Bank USA, National Association As Trustee For Mastr Reperforming Loan Trust 2005-2 Mortgage Pass-Through Certificates, filed. Motion Docket Date 2/16/2021. (Attachments: # 1 Proposed Order)(Cronenwett, Mark) (Entered: 01/26/2021) |
| 02/10/2021 | 21 | MOTION to Withdraw 20 MOTION to Abate by HSBC Bank USA, National Association As Trustee For Mastr Reperforming Loan Trust 2005-2 Mortgage Pass-Through Certificates, filed. Motion Docket Date 3/3/2021. (Attachments: # 1 Proposed Order)(Lopez, Vivian) (Entered: 02/10/2021) |
| 04/06/2021 | 22 | Order Resetting Conference. Initial Conference set for 4/16/2021 at 10:00 AM before Magistrate Judge Frances H Stacy(Signed by Magistrate Judge Frances H Stacy) Parties notified.(bwhite, 4) (Entered: 04/06/2021) |
| 04/08/2021 | 23 | MOTION to Abate by HSBC Bank USA, National Association As Trustee For Mastr Reperforming Loan Trust 2005-2 Mortgage Pass-Through Certificates, filed. Motion Docket Date 4/29/2021. (Attachments: # 1 Proposed Order)(Lopez, Vivian) (Entered: 04/08/2021) |
| 04/12/2021 | 24 | NOTICE of Resetting. Parties notified. Initial Conference set for 6/3/2021 at 10:00 AM before Magistrate Judge Frances H Stacy, filed. (bwhite, 4) (Entered: 04/12/2021) |
| 04/12/2021 | 25 | ORDER granting 23 Motion to Abate.(Signed by Judge Andrew S Hanen) Parties notified.(gkelner, 4) (Entered: 04/12/2021) |
| 05/21/2021 | 26 | NOTICE of Resetting. Parties notified. Initial Conference set for 8/11/2021 at 10:00 AM in by telephone before Magistrate Judge Frances H Stacy, filed. (bwhite, 4) (Entered: 05/21/2021) |
| 07/20/2021 | 27 | Clerks ENTRY OF DEFAULT against Clayton Kelly, Jessica Kelly, Kiersten Kelly. Parties notified.(rhawkins) (Entered: 07/20/2021) |
| 07/20/2021 | 28 | Order Resetting Conference. Initial Conference set for 8/11/2021 at 10:00 AM before Magistrate Judge Frances H Stacy(Signed by Magistrate Judge Frances H Stacy) Parties notified.(bwhite, 4) (Entered: 07/20/2021) |
| 08/04/2021 | 29 | Second MOTION to Cancel Initial Conference, by HSBC Bank USA, National Association As Trustee For Mastr Reperforming Loan Trust 2005-2 Mortgage Pass-Through Certificates, filed. Motion Docket Date 8/25/2021. (Attachments: # 1 Proposed Order)(Lopez, Vivian) (Entered: 08/04/2021) |
| 08/04/2021 | 31 | DEFAULT JUDGMENT against Clayton Kelly, Jessica Kelly, Kiersten Kelly 14 MOTION for Default Judgment. Case terminated on August 4, 2021(Signed by Judge Andrew S Hanen) Parties notified.(jdav, 4) (Entered: 08/05/2021) |
| 08/05/2021 | 30 | NOTICE of Referral of Motion to Magistrate Judge Frances H. Stacy re 29 Second MOTION to Cancel Initial Conference,, filed. (rhawkins) (Entered: 08/05/2021) |
