A RESPONSE FROM KACEY WAGNER
NOV 6, 2023 | REPUBLISHED BY LIT (WITH PERMISSION AND UNEDITED) NOV 16, 2023
Mr. Burke,
I’m not sure how you came across my name/case, but from the bottom of my heart, I can not thank you enough for your email back in March which brought to light this nightmare situation that is in fact my life right now.
When I originally read your email, I kid you not I was at my daughter’s softball tournament, that I had actually organized and put on for not only our city, but our surrounding cities softball leagues, AND I coach her team. But I broke down in tears in the middle of the field unfortunately and I’m not a cryer Mr. Burke! It’s actually a MAJOR rule of mine to my 8 year old players, that there is “no crying in baseball!” as Tom Hanks so graciously put it.
As soon as the tournament ended I showed my entire family (and I have a HUGE family, majority in the same town as me haha) your email and I feel like we all celebrated that there was actually SOMEONE out there who cared about justice and speaking up for those vulnerable/nieve people who don’t know they have a say so in the matter.
The only reason I probably gave you TMI is to explain why I’m just now responding. I sincerely apologize for the late late response, however I was raised with the “better late than never” mentality.=) And I started my response email immediately, but wanted to proofread it when I got completely finished with my tournament that night. However, I guess I never actually hit “send” in all the excitement that I might not be completely alone in my what seemed like hopeless battle against my previous, malicious, and armed with too many lawyers for me to take on alone, mortgage company, Shellpoint.
Anyways, I feel like I have SO MANY things I want to say to you to explain the injustice that money can apparently cover up, at least in my case. But I’ve already made this a little lengthy and I hope that you get to read it all so I’ll try to sum it up quickly.=)
My previous mortgage company, Shellpoint, screwed me over while I was on my last and final payment of a forbearance that I was currently in due to COVID and the separation from my 3 children’s father at the time. They have multiple records of it, even though they spent a year giving me the run around and avoiding me so they didn’ have to admit that THEY’RE EMPLOYEE made a mistake and informed me of the WRONG information on more than 1 occasion. Which is the direction that I was following. Seeing as he was my “case manager”. (I bet that employee was let go shortly afterwards also because I could never get ahold of him again)
Just so you know, during 2022 my only brother, my idol, and my best friend for literally 37 years was placed under Hospice care and passed away on Sept 18th, 2022. I didn’t realize it at the time but I had to watch the person who means the most to me, (outside of my 3 children of course) slowly lose his life, every single day, in the house that we both grew up in.
To say that I was traumatized or devastated wouldn’t even began to explain the pain I was in. And are still trying to work through to this very moment.
So overwhelmed with having to make funeral arrangements for the first time ever, for something that I hadn’t even accepted as “this is actually real” yet, I shuffled through the stacks of lawyer advertisements that I’d been receiving in the mail. All offering or claiming they could save my situation easy peasy. I wasn’t able to do as much research as I normally do when I chose the scumbag lawyer Robert Newark. Or else I wouldn’t have ever hired him. But like I mentioned, I wasn’t in the right state of mind. (it feels like I’m just now getting my head somewhat above the fog a little over a year later).
So I paid Robert Newark an upfront fee of $4000, as he said was his fee. And as instructed by Mr. Newark, I made all following mortgage payments to Mr. Newark’s office for some reason? For months.
He ASSURED me that this was going to be an open & shut case, and that I would never be told to leave my home because I was not in the wrong to begin with. (after making a couple inappropriate comments about him traveling to Galveston that weekend and that he loved bikinis… my home was literally RIGHT outside of Galveston)
Four (4) short months after having what felt like my legs cut out from underneath me with the loss of my brother, I was served with a notice that I had to vacate my home of 13 years, within 3 days! The home I worked hard to purchase on my own when I was 23 years old. I ended up raising my 3 kids in that home that we loved.
Come to find out, this hearing that was held in the same city where I was forced to move to within 3 days, Santa Fe, the same one that Mr. Newark ASSURED me that I did not need to attend, because he would be at the hearing himself, HE DID NOT SHOW UP FOR. So the judge (whom my family and I know very well) had no choice but to side with the only party that was there, which was the mortgage company.
I was VERY naive and believed that lawyers had to uphold a certain standard, a moral code, and at the very least, uphold the law to the best of their ability. Unfortunately being an eternal optimist and giving the benefit of the doubt did me ZERO favors in this life lesson.
(I also wonder if Mr. Newark got a piece of the pie to help sabotage my case, for the extremely bitter lady who purchased my home out from underneath me, with her father)
Again, I am SO SORRY FOR THE SO VERY LATE RESPONSE, AND FOR THE LONGGGG EMAIL. =) If you have ANY advice for me whatsoever, please don’t hesitate to let me know. Or a reference for an honest lawyer? I would SO appreciate any help as I don’t know where to turn or who to trust?
God Bless you sir!
Eternally grateful,
Kacey Wagner
LIT COMMENTARY
After Enforced Settlement, Property is Now Listed for Sale by “Third Party” Larry Schild.
Note: Order on Motion to Withdraw as Attorney by Outlaw Judge Jeff Brown issued Mar 17, 2023.
TO THE HONORABLE JUDGE OF SAID COURT:
Robert C. Newark, III (“Movant”) respectfully requests that the Court enter an order withdrawing Movants as counsel of record for Plaintiff, Kacey Nicole Wagner.
In support of the Motion, Movant would should the following:
On March 1, 2023, Movant filed his Motion to See Doc # 11
On multiple occasions since that filing, Plaintiff has reached out to counsel for Defendant to discuss the case, inform counsel for the Defendant that Movant was no longer her attorney, and other disparaging things about Counsel for Defendant never contacted Plaintiff directly but rather informed Movant of the Plaintiff’s emails and phone calls. Further, Counsel for Defendant stated to Movant that she would not contact Plaintiff directly until the Court enters the order allowing Movant to withdraw.
On March 10, 2023, Plaintiff contacted Movant to discuss settlement of thecase. Plaintiff again represented that she would agree to the new settlement offer made by Defendant.
Since that time, Movant has attempted to contact Plaintiff at least twice a day at the email address and phone number he had to discuss the status of the settlement offer.
On March 15, 2023, Movant received an email from an unknown third-party addressed to Plaintiff and counsel for the Defendant stating many inaccuracies about Movant’s representation of Plaintiff and suggesting that Movant did not really represent Plaintiff [LIT; Correct, you represent Larry Schild of GFF]…
As such, based on the conduct of the Plaintiff and the email from the unknown third-party, Movant must not renew his Motion to Withdraw.
As previously stated good cause exists for this Court to grant the Motion because irreconcilable differences between counsel and Plaintiff exists:
The client has failed substantially to fulfill an obligation to the lawyer regarding the lawyer’s service to including not responding to phone calls and text messages;
The representation has become unreasonable difficult by the client.
Plaintiff does not have other counsel at this Plaintifft’s last known address is 13130 7th St, Santa Fe, TX 77510.
The withdrawal is not sought for delay only, but so that justice may be
Counsel for the Defendant has agreed to my motion to withdraw. While Movant has not been able to speak to Plaintiff, her emails to Counsel for Defendant indicated that Movant is no longer her attorney.
WHEREFORE, PREMISES CONSIDERED, Movants respectfully request that the Court enter an order permitting Robert C. Newark, III, to withdraw as counsel of record for Plaintiff.
Respectfully submitted,
/s/ Robert C. Newark
Robert C. Newark
State Bar No. 24040097
robert@newarkfirm.com
1341 W. Mockingbird Lane, Ste 600W
Dallas, Texas 75247
(866)230-7236
(888)316-3398 (FAX)
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
A true and correct copy of this document was served by ECF on March 16, 2023 to:
Melanie D. Morgan
Additionally, a copy was mailed to Plaintiff at the address indicated in this motion.
/s/Robert C. Newark, III
Robert C. Newark, III
Howdy,
At the Court in Galveston…
Ms Morgan of Akerman, you should know that GFF Texas Holdings, LLC is the new owner of the property* in the incorrectly named lawsuit filed by Bandit lawyer Robert Newark. That is why the deposition with Ms. Kacey Wagner wasn’t gonna happen – as she’d have to perjure herself.
You see, we investigated GFF and you’ll note on our updated article that it’s registered to one Larry Schild, a known Real Estate buyer of properties. We’ve provided his colorful resume on the updated article as well.
And as far as Newark claimin’ he cannot contact Ms. Wagner, we’ve also investigated that falsehood and you’ll see Ms. Wagner is not difficult to contact.
We’ve included most of the related people (including Ms. Wagner) and other parties in this email who we believe may have an interest in our updated article. The list is far from exhaustive.
Ms Morgan, you have a duty to report [mis]conduct as we’ve witnessed here.
FYI, LIT has pointed similar misconduct in many other related articles about Bandit lawyer Bob Newark. We’ll be watchin’ how this case moves forward.
p.s. If anyone believes we may be mistaken about any of the facts in our article, just holla’ back with irrefutable evidence supporting your request for correction for our review.
Y’all have a great day.
*LIT uses that wording very loosely…
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Galveston)
CIVIL DOCKET FOR CASE #: 3:22-cv-00257
| Wagner v. NEWREZ, LLC Assigned to: Judge Jeffrey V Brown Demand: $75,000
Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 07/20/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 03/16/2023 | 16 | Agreed MOTION for Robert Newark to Withdraw as Attorney by Kacey Nicole Wagner, filed. Motion Docket Date 4/6/2023. (Attachments: # 1 Proposed Order)(Newark, Robert) (Entered: 03/16/2023) |
| 03/16/2023 | 17 | Agreed MOTION for Robert Newark to Withdraw as Attorney by Kacey Nicole Wagner, filed. Motion Docket Date 4/6/2023. (Attachments: # 1 Proposed Order)(Newark, Robert) (Entered: 03/16/2023) |
| 03/17/2023 | 18 | ORDER granting 17 Motion to Withdraw as Attorney. Attorney Robert C Newark, III terminated.(Signed by Judge Jeffrey V Brown) Parties notified.(GeorgeCardenas, 3) (Entered: 03/17/2023) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 03/19/2023 11:23:24 |
Wagner v. NEWREZ, LLC
(3:22-cv-00257)
District Court, S.D. Texas
JUL 20, 2022 | REPUBLISHED BY LIT: JUL 21, 2022
R&R Enforcing Settlement Granted, Despite Lawyer Resigning based on EMAIL FROM LIT to Bandit Lawyer Newark: Wagner v. Newrez, LLC, 3:22-cv-00257 (S.D. Tex. May 22, 2023)
Apparently Bandit Lawyer Robert Newark Doesn’t Have All His Client’s Information.
LIT does. Here you go, Bob, startin’ with Kacey Wagner’s employer.
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JOINT MOTION TO HOLD DISCOVERY AND DISPOSITIVE MOTION DEADLINES IN ABEYANCE PENDING DECISION ON PENDING MOTIONS
Plaintiff Kacey Nicole Wagner and defendant NewRez LLC dba Shellpoint Mortgage Servicing jointly request an order holding all discovery and dispositive motion deadlines in abeyance pending decisions on Shellpoint’s motion to enforce settlement agreement and to dismiss with prejudice (motion to enforce) (Doc. 13) and Robert Newark’s motion to withdraw as counsel for plaintiff (motion to withdraw) (Doc. 11).
I. Background
1. Plaintiff Kacey Wagner took out a home equity line of credit against the property located at 21 Edgewater St., Bayou Vista, Texas 77653 in May 2015. (See Compl. ¶ 9, Doc. 1-1.) Shellpoint serviced Ms. Wagner’s loan, which was secured by a deed of trust recorded against the property. A foreclosure under the deed of trust took place on July 5, 2022.
2. Ms. Wagner filed this lawsuit in state court on July 5, 2022, to assert claims for negligence, violation and RESPA and violation of Texas Property Code against Shellpoint. (Doc. 1-1.) Shellpoint answered and removed the case to this court on July 20, 2022. (Docs. 1, 1-4.)
3. Ms. Wagner’s counsel, Robert Newark, moved to withdraw on March 1, 2023. (Doc. 11.) Shellpoint opposed Mr. Newark’s motion, and Mr. Newark filed a reply in support of his motion.1 (Doc. 12, 14.)
4. On March 8, 2024, Shellpoint filed a motion to enforce a settlement between Shellpoint and Ms. Wagner.2 (Doc. 13.)
5. Discovery is scheduled to close on March 17, 2023. (Doc. 9.)
6. Dispositive motions are due March 24, 2023. (Doc. 9.)
7. Because the decision on Shellpoint’s pending motion to enforce settlement may render further discovery and dispositive motion briefing unnecessary, and because the ruling on Mr. Newark’s motion to enforce will dictate his obligations to Ms. Wagner moving forward, the parties jointly request that those deadlines be held in abeyance and subject to rescheduling pending the Court’s ruling on Shellpoint’s motion to enforce settlement and Mr. Newark’s motion to withdraw. (Docs. 13 and 11.)
WHEREFORE, Shellpoint and Mr. Newark request an order that the March 17, 2023 discovery cut-off deadline and March 24, 2023 dispositive motion deadlines be held in abeyance and subject to rescheduling by the Court pending the Court’s ruling on Shellpoint’s motion to enforce settlement and Mr. Newark’s motion to withdraw.
Dated: March 10, 2023 Respectfully submitted,
/s/ Robert C. Newark (w/permission)
Robert C. Newark
State Bar No. 24040097
1341 W. Mockingbird Lane, Suite 600W Dallas, Texas 75247
Telephone: 866.230.7236
Facsimile: 888.316.3398
E-Mail: robert@newarkfirm.com
ATTORNEY FOR PLAINTIFF KACEY NICOLE WAGNER
/s/ Melanie D. Morgan
Melanie D. Morgan,
SBN: 24039096
— Attorney in Charge
AKERMAN LLP
2001 Ross Avenue, Suite 3600
Dallas, Texas 75201
Telephone: 214.720.4300
Facsimile: 214.981.9339
E-Mail: melanie.morgan@akerman.com
ATTORNEY FOR NEWREZ LLC DBA SHELLPOINT MORTGAGE SERVICING
1 Mr. Newark’s motion to withdraw was based, at least in part, on the fact that Ms. Wagner had stopped communicating with him.
Shellpoint’s objection was based, in part, on the fact that Ms. Wagner’s deposition had been noticed for March 10, 2023.
On March 9, 2023, with less than 24 hours remaining before the deposition, Ms. Wagner renewed communication with Mr. Newark.
Given the short notice of Ms. Wagner’s renewed participation in the litigation and the uncertainties surrounding the motion to withdraw and motion to enforce, counsel agreed to vacate Ms. Wagner’s March 10, 2023 deposition with the understanding it could be reset if necessary either prior to the current March 17, 2023 close of discovery or afterwards, should the court grant this joint motion.
2 Details of the settlement and undersigned counsel’s communications with Mr. Newark about settlement are outlined in Shellpoint’s underlying motion to enforce settlement, which Shellpoint filed under seal due the confidential nature of the settlement.
MOTION for Robert C. Newark, III to Withdraw as Attorney by Kacey Nicole Wagner, filed.
Motion Docket Date 3/22/2023. (Attachments: # 1 Proposed Order)(Newark, Robert) (Entered: 03/01/2023)
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Galveston)
CIVIL DOCKET FOR CASE #: 3:22-cv-00257
| Wagner v. NEWREZ, LLC Assigned to: Judge Jeffrey V Brown Demand: $75,000
Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 07/20/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Date Filed | # | Docket Text |
|---|---|---|
| 01/26/2023 | 10 | NOTICE of Appearance by Melanie Morgan on behalf of NEWREZ, LLC, filed. (Morgan, Melanie) (Entered: 01/26/2023) |
| 03/01/2023 | 11 | MOTION for Robert C. Newark, III to Withdraw as Attorney by Kacey Nicole Wagner, filed. Motion Docket Date 3/22/2023. (Attachments: # 1 Proposed Order)(Newark, Robert) (Entered: 03/01/2023) |
| 03/08/2023 | 12 | Opposed RESPONSE to 11 MOTION for Robert C. Newark, III to Withdraw as Attorney filed by NEWREZ, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Morgan, Melanie) (Entered: 03/08/2023) |
| 03/08/2023 | 13 | SEALED MOTION to Enforce Settlement and to Dismiss with Prejudice by NEWREZ, LLC, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit A-1, # 3 Exhibit A-2, # 4 Exhibit A-3, # 5 Exhibit A-4, # 6 Exhibit A-5, # 7 Exhibit A-6, # 8 Proposed Order) (Morgan, Melanie) (Entered: 03/08/2023) |
| 03/08/2023 | 14 | REPLY to 11 MOTION for Robert C. Newark, III to Withdraw as Attorney, 12 Response to Motion , filed by Kacey Nicole Wagner. (Newark, Robert) (Entered: 03/08/2023) |
| 03/10/2023 | 15 | Joint MOTION to Hold in Abeyance by NEWREZ, LLC, filed. Motion Docket Date 3/31/2023. (Attachments: # 1 Proposed Order)(Morgan, Melanie) (Entered: 03/10/2023) |
| PACER Service Center | |||
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| Transaction Receipt | |||
| 03/15/2023 13:12:49 |
SANTA FE, TX — Mr. Daniel Cody Wagner passed from this life Sunday, September 18, 2022, in Santa Fe.
Born November 18, 1983, in Texas City, TX, Mr. Wagner was a lifelong area resident of Santa Fe. He proudly served his country in the U.S. Army and later began working for Centerpointe Energy as a lineman.
Daniel enjoyed spending his free time fishing and was an avid surfer.
He was preceded in death by his grandparents, Dan Wagner and Josephine Ann (Coniglio); James Austin Weeks and Billy Joyce (Herrin).
Survivors include his mother, Judy Wagner; father, Danny Wagner and fiancé, Susan Bilse; sister, Kacey Wagner and husband, Nick Quesada; nieces, Alivea Rose, and Alijah Reign; nephew, Daniel Lincoln; numerous aunts, uncles, cousins and other family and friends.
A Funeral Mass will be celebrated 1:00 p.m. Friday, September 23, 2022, at Our Lady of Lourdes Catholic Church with Reverend David Harris, Celebrant. Interment will be held at 10:00 a.m. Tuesday, September 27, 2022, at Hayes Grace Memorial Park Cemetery.
Casketbearers will be Kacey Wagner, Joseph Perez, Jason Macaluso, Scott Lawyer, Micah Reed and Mike Welschhans. Honorary bearers will be Vince Wagner, Jason Wagner, Erick Wagner, Aaron Wagner, Melissa Wagner, Katie Ewing, Kelli Hefner, Wyndee McGee, Aaron Denton, Brandi Martinez, Amanda Dent, Kristen Egan, Mike Garza, Dane Lucas and Priscilla King.
Visitation will be held from 5 — 7 p.m. Thursday at Hayes Funeral Home, 10412 Highway 6, (409) 925-3501, with a Rosary beginning at 7:00 p.m. with recited by Mr. Don LeCompte.
Daniel George Wagner, Jr.
SANTA FE – Mr. Daniel George Wagner, Jr., passed from this life Thursday afternoon, January 26, 2017, in Texas City surrounded by his family.
Born August 21, 1929 in Plantersville, TX, to German immigrants, Daniel Franklin and Katherine (Martin) Wagner.
Dan met Josephine Coniglio in Dickinson, TX and they married on February 23, 1952 at the Shrine of True Cross. They built their first home in Dickinson later moving to Angleton and then Alta Loma/Santa Fe in 1961, residing there for 56 years. He was a parishioner and member of Our Lady of Lourdes Catholic Church. He was a member of Our Lady of Lourdes Council #10393 and previously a member of the Knights of Columbus, M.J. Babin Council in LaMarque.
Dan always jokingly said he had a wonderful childhood until he went to work at the age of 4. Dan first worked for Bowen McLaughlin at the Blimp Base in Hitchcock, TX, then he began working for George Moore Construction building the highway between Dickinson and Kemah. He worked for M&M Construction and helped build the Angleton, TX section of Highway 288. While employed at Texas Gulf Construction he helped build the Galveston Seawall. Texas Gulf branched off to form Bridge and Road Construction, with many years employed with Bridge and Road, Dan climbed the work ladder from operator to job foreman to superintendent. Various projects he worked on include the Industrial Bypass in Galveston, the Naval Parking Lot on Pelican Island, the Todd Shipyard Road, the fueling stations for Houston’s Intercontinental Airport, Farm Road 2920 in the Tomball/Waller area. The 610 Loop between I-10 and -45, the Southwest Freeway from Bissonet to Highway 1092 and the extension of the runways at Ellington Air Force Field. While employed for LEM Construction he was the project superintendent building the waste disposal plant for Texas City. In 1982 Dan joined his sons, Dennis and Davy at Wagner Construction in Santa Fe, TX, retiring in 1990.
He was preceded in death by his parents; siblings, Mike Wagner, Verna Morse, Jack Wagner, Joe Wagner, Barbara Shead and Maggie Shead.
Survivors include his loving wife of 65 years, Josephine (Coniglio) Wagner; sister, Eugenia Johnson; sons, Danny (Regina), Jerry and wife, Lynda, Dennis and wife, Wanda, Kenny and wife, Shawn, Davy (Brandi); daughter, JoLynn Wagner; grandchildren, Dennis Wagner, Jr. (Heather), Jason Wagner (Deidre), Wyndee Wagner, Kacey Wagner (Nick Quesada), Cody Wagner, Erick Wagner (Kristi), Aaron Wagner (Monica), Kristen Egan (John), Mellissa Johnson (Tim), Kelli Hefner (Jason), Katie Ewing (Travis), Michael Garza (Shellene); 26 great-grandchildren, and numerous nieces and nephews.
Visitation will be held from 5 – 8 p.m. Sunday at Hayes Funeral Home, 10412 Highway 6, (409) 925-3501, with a Vigil Service beginning at 7:00 p.m. with Deacon Alvin Lovelady officiating. A Rosary will follow recited by Deacon Don Lecompte.
A Funeral Mass will be celebrated 10:00 a.m. Monday, January 30, 2017, at Our Lady of Lourdes Catholic Church with Reverend John Kappe, Celebrant. Interment will follow at Hayes Grace Memorial Park Cemetery.
Pallbearers will be Dennis Wagner, Jr. Jason Wagner, Erick Wagner, Aaron Wagner, Daniel Cody Wagner and Dennis Wagner, III. Honorary bearers will be Melissa Wagner Johnson, Kelli Wagner Hefner, Katie Wagner Ewing, Wyndee Wagner, Kacey Wagner and Kristen Wagner Egan.
The family would like to thank caregiver Tammy McKee for her time and help coordinating Dan’s healthcare.
Property at Risk: 21 Edgewater Dr., Hitchcock, Texas
LIT’s back, remotely watchin’ Judge Jeff Brown’s Galveston Courtroom.
Organized Crime in Texas Today = The Judiciary#TxLege #appellatetwitter pic.twitter.com/utUU7jZkTl
— lawsinusa (@lawsinusa) July 22, 2022
MEMORANDUM AND RECOMMENDATION
ANDREW M. EDISON, UNITED STATES MAGISTRATE JUDGE.
Defendant NewRez LLC d/b/a Shellpoint Mortgage Servicing (“Shellpoint”) has filed a Motion to Enforce Settlement and to Dismiss with Prejudice (“Motion to Enforce Settlement Agreement”). Dkt. 13.
Having reviewed the briefing, the record, and the applicable law, I recommend that the motion be GRANTED.
Because a ruling on the Motion to Enforce Settlement Agreement is dispositive of the claims asserted in this matter, I am issuing a Memorandum and Recommendation as opposed to an Order and Opinion.
See Coleman v. City of Opelousas, No. 6:2O-CV-O1469, 2021 WL 3812483, at *1 (W.D. La. July 23, 2021)
(holding that a motion to enforce a settlement agreement is dispositive and, therefore, properly “presented as a report and recommendation in accordance with the provisions of 28 U.S.C. § 636”).
BACKGROUND
This case concerns a piece of real property located at 21 Edgewater Street, Bayou Vista, Texas 77653 (the “Property”).
On July 5, 2022, Plaintiff Kacey Nicole Wagner (“Wagner”) filed suit against Shellpoint in state district court in Galveston County, seeking to recover monetary damages and enjoin a foreclosure sale scheduled to take place the same day.
The state court judge handling the matter refused to grant a temporary restraining order enjoining the foreclosure sale. As a result, the foreclosure sale went ahead as planned and the Property was sold to a third party.
On July 20, 2022, Shellpoint removed this case to federal court based on diversity jurisdiction. Wagner’s lawsuit advances causes of action for negligence, violation of Texas Property Code § 51.002, and breach of contract.
On February 10, 2023, Wagner’s counsel and Shellpoint’s counsel talked about a possible resolution of this case. During that phone call, Shellpoint’s counsel agreed to confer with Shellpoint and then circulate a proposed settlement agreement.
Six days later, on February 16, 2023, Shellpoint’s counsel sent Wagner’s counsel a proposed settlement agreement.
The eight-page document set forth the essential terms of a settlement.
These included:
(1) Wagner releasing all claims against Shellpoint;
(2) Shellpoint coordinating to have $97,425.17 in excess proceeds from the foreclosure sale paid to Wagner;
(3) Shellpoint’s payment of an additional $250 to Wagner;
and
(4) the dismissal of this case with prejudice.
The proposed settlement agreement specified that the settlement funds would be sent to her counsel’s address.
On February 21, 2023, Wagner’s counsel sent Shellpoint’s counsel an email indicating that the terms outlined in the proposed settlement agreement were acceptable with one exception.
“My client would like all funds sent directly to her,” Wagner’s counsel wrote. Dkt. 13-4 at 3. Wagner’s counsel ended his email with the following statement: “My client will sign the agreement once that is changed.” Id. at 4.
In response to that email, Shellpoint’s counsel noted that “Shellpoint is fine with the settlement payment going directly to Ms. Wagner.” Id. at 2.
Shellpoint attached an updated version of the settlement agreement for execution. See Dkt. 13-6.
To date, Wagner has refused to sign the settlement agreement.
Shellpoint now requests an order enforcing the parties’ settlement agreement and dismissing this case.
Wagner did not respond to Shellpoint’s Motion to Enforce Settlement Agreement.
ANALYSIS
The Fifth Circuit has recognized that “a district court has inherent power to recognize, encourage, and when necessary enforce settlement agreements reached by the parties.”
Wise v. Wilkie, 955 F.3d 430, 434 (5th Cir. 2020) (cleaned up).
A federal court sitting in diversity applies the law of the forum state when deciding whether to enforce a settlement agreement.
See Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.gd 256, 266 (5th Cir. 1995).
“More specifically, the enforceability of a settlement agreement in a diversity case tried in a federal district court in Texas is governed by the provisions of Rule n [of the] Texas Rules of Civil Procedure.”
Borden v. Banacom Mfg. &Mktg., Inc., 698 F.Supp. 121,123 (N.D. Tex. 1988).
Under Rule 11, a settlement agreement is enforceable only if it is (1) in writing; (2) signed; and (3) filed as part of the record.
See TEX. R. CIV. P. 11.
ALL THREE REQUIREMENTS ARE EASILY MET HERE.
First, the “in writing” requirement is met when there is “a written memorandum which is complete within itself in every material detail, and which contains all of the essential elements of the agreement, so that the contract can be ascertained from the writings without resorting to oral testimony.”
Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995) (quotation omitted).
An email exchange satisfies the “in writing” requirement so long as it contains the material details and essential elements of the parties’ agreement.
See Shamrock Psychiatric Clinic, PA. v. Tex. Dep’t of Health & Hum. Servs., 540 S.W.3d 553, 561 (Tex. 2018)
(finding that an email agreement satisfied Rule 11’s “in writing” requirement);
Limon-Hernandez v. Target Corp., No. 3:19-CV-2817-N, 2021WL 3812159, at *1 (N.D. Tex. Mar. 10, 2021) (same).
In this case, lawyers for both parties provided email confirmation that the terms of the proposed settlement, as set forth in an attached settlement agreement, were acceptable.
The email exchange between counsel unquestionably satisfies the “in writing” requirement.
Second, Rule 11 requires not simply a writing, but a signed writing.
Some courts have held that a name or email address in the “from” field of an email satisfies the signed writing requirement. See Limon-Hernandez, 2021 WL 3812159, at *2
(determining that email agreements between the parties’ counsel satisfied the signing requirement “[b]ecause the ‘from’ field functions to identify the sender of the email and authenticate the email”);
see also Khoury v. Tomlinson, 518 S.W.3d 568, 576 (Tex. App.-Houston [1st Dist.] 2017, no pet.)
(holding that the name or email address in the “from” field satisfied the Texas Uniform Electronic Transactions Act’s signature requirement).
Here, the names and email addresses of the lawyers are readily apparent in the “from” field of the email exchange.
See Dkt. 13-4.
Even more persuasive is the fact that each lawyer typed his/her name under the text of each email, indicating that the parties fully intended to conduct the settlement transaction by electronic means.
Third, the relevant email exchange and settlement agreement has been filed as part of the record.
See Dkts. 13-4,13-6.
Because the settlement agreement between Wagner and Shellpoint is in writing, signed, and filed as part of the record, I conclude under Texas state law that a valid and enforceable settlement exists.
CONCLUSION
For the reasons set forth above, I recommend that the Motion to Enforce Settlement Agreement be GRANTED.
The document titled Confidential Settlement Agreement and Release (Dkt. 13-6 at 2-9) contains the essential terms of the settlement, and both parties should be required to comply with those terms.
Wagner’s claims brought in this lawsuit should be dismissed with prejudice to refiling.
The Clerk shall provide copies of this Memorandum and Recommendation to the respective parties who have 14 days from receipt to file written objections under Federal Rule of Civil Procedure 72(b) and General Order 2002-13.
Failure to file written objections within the time period mentioned shall bar an aggrieved party from attacking the factual findings and legal conclusions on appeal.
After a lengthy period of non-movement, we had an appearance on Jan 26 to cover the Akerman exodus and now we’re percolatin’ again as Judge Jeff Brown allows Akerman to hire new staff…
No movement since doc 6, protective order (form), July 26.
ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons.
Initial Conference set for 11/9/2022 at 09:00 AM by video before Magistrate Judge Andrew M Edison
(Signed by Judge Jeffrey V Brown)
Parties notified. (VanesaAranda, 3) (Entered: 07/21/2022)
We looked up GFF Texas Holdings, LLC on TX SOS directly. It’s a shell company with a Trust and the agent is a law/cpa/tax firm (Cook Legal Group). The goal is to protect the identity of the real owners.
Galveston CAD (updated Oct. 4 with new Owner, GFF Texas Holdings LLC)
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Galveston)
CIVIL DOCKET FOR CASE #: 3:22-cv-00257
Create an Alert for This Case on RECAP
| Wagner v. NEWREZ, LLC Assigned to: Judge Jeffrey V Brown Demand: $75,000
Cause: 28:1332 Diversity-Breach of Contract |
Date Filed: 07/20/2022 Jury Demand: None Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
| Plaintiff | ||
| Kacey Nicole Wagner | represented by | Robert C Newark , III Attorney at Law 1341 W Mockingbird Lane Ste 600W Dallas, TX 75247 866-230-7236 Email: office@newarkfirm.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED |
| V. | ||
| Defendant | ||
| NEWREZ, LLC doing business as Shellpoint Mortgage Servicing |
represented by | Michael J McKleroy , Jr Akerman, LLP 2001 Ross Avenue Suite 3600 Dallas, TX 75201 214-720-4300 Email: michael.mckleroy@akerman.com LEAD ATTORNEY ATTORNEY TO BE NOTICEDAlfredo Ramos Akerman, LLP 2001 Ross Avenue Suite 3600 Houston, TX 75201 214-720-4300 Email: fred.ramos@akerman.com ATTORNEY TO BE NOTICEDC Charles Townsend Akerman, LLP 2001 Ross Avenue Suite 3600 Dallas, TX 75201 214-720-4300 Email: charles.townsend@akerman.com ATTORNEY TO BE NOTICED |
| Defendant | ||
| NRM Acquisition II LLC | ||
| Date Filed | # | Docket Text |
|---|---|---|
| 07/20/2022 | 1 | NOTICE OF REMOVAL from 212th Galveston County, TX, case number 22-CV-1214 (Filing fee $ 402 receipt number ATXSDC-28492682) filed by NEWREZ, LLC dba Shellpoint Mortgage Servicing. (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet)(McKleroy, Michael) (Entered: 07/20/2022) |
| 07/20/2022 | 2 | CORPORATE DISCLOSURE STATEMENT by NEWREZ, LLC dba Shellpoint Mortgage Servicing, filed.(McKleroy, Michael) (Entered: 07/20/2022) |
| 07/20/2022 | 3 | CERTIFICATE OF INTERESTED PARTIES by NEWREZ, LLC dba Shellpoint Mortgage Servicing, filed.(McKleroy, Michael) (Entered: 07/20/2022) |
| 07/21/2022 | 4 | ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 11/9/2022 at 09:00 AM by video before Magistrate Judge Andrew M Edison(Signed by Judge Jeffrey V Brown) Parties notified.(VanesaAranda, 3) (Entered: 07/21/2022) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 07/23/2022 18:56:13 |
Abandoned gas station purchased out of foreclosure by GFF Texas Holdings, a shell co. (Jan 19, 2023)
A Texas-based holding company has purchased the abandoned gas station on Main Street at a county foreclosure sale, a development that could simplify or complicate the City of Olney’s efforts to remove a huge pile of tires from the property, City Administrator Arpegea Pagsuberon told the City Council on Jan. 9.
“For the Council’s information, 301 East Main [Street] – the tire shop – it sold. A company out of [Houston] has purchased it for $17,000,” Mrs. Pagsuberon said. “They are aware that there is an additional $23,000 in back taxes that they need to pay… the [city’s] attorney had explained to the buyer that aside from the back taxes, there are tanks in the ground and the tires need to be remediated.”
The buyer was listed as GFF Texas Holdings LLC, whose registered agent is a Houston law firm called Cook Legal Group, according to the city’s attorneys who handled the transaction. The company did not return calls for comment. A representative for Cook Legal Group declined to identify who owns or operates the company, which is based in Houston and received its state operating permit in August, according to state records.
City Councilmembers reacted with incredulity; their efforts to clean up the eyesore property beside the First Baptist Church of Olney had become mired in bureaucratic red tape at both the state and federal levels since last spring, and multiple attempts to sell it at county foreclosure auctions had produced no takers.
“We were all incredibly shocked that it sold,” Mrs. Pagsuberon said.
The Council voted last month to take ownership of the property so as not to lose a $41,000 state grant the city won last year to remove about 10 trailers-worth of passenger and commercial vehicle tires. The City also invited residents to bring their own tires for free disposal.
The ambitious clean-up plan hit a snag when the Texas Commission on Environmental Quality refused to fund the grant after learning the tires sit on private property. Complicating the situation, the U.S. Environmental Protection Agency regulations require that underground gasoline tanks on the site be removed before the property could be sold, possibly saddling the city with the gas station “indefinitely,” Mrs. Pagsuberon told the Council at the December meeting.
After confirming that the new buyer understood the liabilities associated with its purchase of the gas station, Mrs. Pagsuberon convinced the Nortex Regional Planning Commission to allow Olney to use the grant to purchase a tire cutter. The agency finally released $19,300 in grant funds for the purchase of a $27,000 tire cutter, she told the Council on Jan. 13.
The city will use American Rescue Plan Act funds to pay the balance, she said. The tire cutter will be located at the Olney Convenience Station and will allow city code enforcement officers to “deal with our own tire issues in town at a slower pace and with the tire cutter instead of having to pay to have the tires disposed of in the way we did for [the gas station],” she said.
GFF Texas Holdings, LLC vs. Lupe Sanchez, Marie Sanchez
PLAINTIFF’S FIRST AMENDED ORIGINAL PETITION
(ADDING GFF)
PLAINTIFF’S ORIGINAL PETITION
GFF TEXAS HOLDINGS, LLC vs. Marie Trigo And All Other Occupants
Our Attorneys
Kyle White
Megan Mejias
Tom Huynh
Practice Areas
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Kyle White
Mr. White graduated from the University of Texas in Austin majoring in Government. He later attended Thurgood Marshall School of Law and obtained his Juris Doctorate. Mr. White has worked for various real estate firms and mortgage companies critiquing his skills in residential and commercial real estate. His main focuses include real estate law, wills, trusts, and probate.
In addition to practicing law, Mr. White is also Chief Legal Counsel for Dream Home Seekers, LLC which is a Houston based residential and commercial real estate company.
Education
B.A., Government, The University of Texas at Austin
J.D., Texas Southern University
Qualifications
Member of the State Bar of Texas
Texas Real Estate Sales License
Primary Practice Areas
Real Estate Law (Evictions, Contract Review and Drafting, Security Deposit Cases, Landlord/Tenant, Lien Removal, Warranty Deed Drafting, etc.)
Wills, Trusts, and Probate
Business Law (Entity Formation and litigation disputes)
Professional Organizations
State Bar of Texas – Member
Chair of the District 2B Subcommitte of the Unauthorized Practice of Law Committee (“UPLC”)
Houston Bar Association – MemberOil, Gas, & Mineral section
Probate, Trust,& Estate section
Real Estate section
National Association of Property Managers Affiliate – Houston Chapter
Houston Young Lawyers Association (HYLA) – Member
Brazos/College Station Apartment Association
Houston Association of Realtors – Member
Texas Association of Realtors – Member
Texas Notary Public Commission – Texas Licensed Notary
Publications
Houston Association of Realtors Magazine
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