Snap: Judge Bennett Assigned to Rene Gaviola’s Removed Lawsuit by Wells Fargo’s Favorite Foreclosure Mill

U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CRIMINAL DOCKET FOR CASE #: 4:22-cr-00402-2

HOUSTON – A 68-year-old man has been sentenced for orchestrating a $6 million Medicaid fraud and kickbacks scheme, announced U.S. Attorney Alamdar S. Hamdani.

Rene Fernandez Gaviola pleaded guilty Jan. 26.

Chief U.S. District Judge Randy Crane has now ordered Gaviola to serve 120 months in federal prison to be immediately followed by three years of supervised release.

In addition, Judge Crane ordered Gaviola to pay $4,908,957.89 in restitution to Medicaid and a personal money judgement of $2,996,092.

In handing down the sentence, the court noted Gaviola involved his own son in his “crooked” fraud scheme.

Judge Crane also emphasized that Gaviola had failed to make any attempt to pay back restitution even though he has $2 million in assets stashed away in the Philippines.

Gaviola was the operator of Floss Family Dental Care clinic in Houston. From 2018 until April 2021, Gaviola submitted fraudulent claims to Medicaid for pediatric dental services, including numerous cavity fillings which Floss did not provide or unlicensed individuals provided.

Gaviola illegally employed his son, who was not a licensed dentist, to provide dental services to Medicaid-insured children and occasionally operated Floss without any licensed dentists present. Floss then fraudulently billed Medicaid for these services.

Gaviola also paid kickbacks to marketers and caregivers of Medicaid-insured children to bring them to Floss for dental services. Ultimately, he admitted to laundering Medicaid monies from the Floss business bank account to his personal bank account in several transactions exceeding $100,000.

From 2019 to 2021, the dental clinic billed Medicaid nearly $6.9 million in claims for pediatric dental services. Medicaid paid approximately $4.9 million on those claims.

Gaviola’s co-conspirator, Mia Diaz, 48, Cleveland, a manager at Floss, was previously sentenced to 21 months imprisonment followed by three years of supervised release April 16.

Previously released on bond, Gaviola was taken into custody following the sentencing where he will remain pending transfer to a U.S. Bureau of Prisons facility to be determined in the near future.

FBI, Texas Attorney General’s Medicaid Fraud Control Unit and the Department of Health and Human Services – Office of Inspector General conducted the investigation. Assistant U.S. Attorneys Kathryn Olson and Lauren Valenti prosecuted the case.

Updated June 25, 2024

HOUSTON – A superseding indictment has been unsealed charging an operator and two managers at a local dental clinic for their roles in a $6 million Medicaid fraud and kickback scheme, announced U.S. Attorney Alamdar S. Hamdani.

Authorities took Christian Agno Aquino, 42, Humble, into custody today. He is expected to make his initial appearance before U.S. Magistrate Judge Dena Hanovice Palermo at 2 p.m.

Also charged is Rene Gaviola, 67, and Ifeanyi Ndubisi Ozoh, 51, both of Houston. They were previously arrested on similar charges in August 2022. Ozoh and Gaviola are expected to make their appearances on the superseding indictment in Houston tomorrow.

According to the charges, Gaviola was the operator, while Ozoh and Aquino were managers of Floss Family Dental Care clinic located in Houston. The superseding indictment alleges Gaviola and other employees submitted fraudulent claims to Medicaid for pediatric dental services, including numerous cavity fillings, that Floss did not provide or that licensed individuals did not conduct. At Gaviola’s direction and with Aquino’s assistance, Floss allegedly employed one individual to practice dentistry without a license. Floss billed Medicaid for these dental services as if they were provided by a licensed dentist, according to the indictment.

Gaviola, Ozoh and Aquino also allegedly paid kickbacks to marketers and caregivers of Medicaid-insured children to bring them to Floss for dental services.

The indictment further alleges Gaviola laundered Medicaid monies from the Floss business bank account to his personal bank account in several transactions exceeding $100,000.

From 2019 to 2021, the dental clinic allegedly billed Medicaid for nearly $6.9 million for which Medicaid paid approximately $4.9 million.

If convicted, all three face up to five years in prison for conspiracy to pay and receive kickbacks and 10 years for each count of payment of health care kickbacks. Gaviola and Aquino also face up to 10 years for each count of health care fraud and conspiracy to do so. Finally, Gaviola faces up to 10 years in prison for each count of money laundering. All charges also carry a possible $250,000 maximum fine.

The FBI, Texas Attorney General’s Medicaid Fraud Control Unit and the Department of Health and Human Services – Office of Inspector General conducted the investigation. Special Assistant U.S. Attorney Kathryn Olson and Assistant U.S. Attorney Grace Murphy are prosecuting the case.

An indictment is a formal accusation of criminal conduct, not evidence. A defendant is presumed innocent unless convicted through due process of law.

Updated June 14, 2023

Notice of Substitute Trustee’s Sale

Gallagher v. Paxton, Civil Action No. 4:18-CV-575, at *9 (E.D. Tex. Sep. 10, 2019)

In part;

“Plaintiff is prohibited from filing new actions in the United States District Court for the Eastern District of Texas without the representation of a licensed attorney admitted to practice in the Eastern District of Texas, unless he obtains permission to proceed pro se.

In order to obtain permission to proceed pro se, Plaintiff is directed to take the following steps:”

“A. A list of all lawsuits currently pending or filed previously in any Federal or State Court, including the name, number, and citation, if applicable, of each case, and the current status or disposition of each case;

and

B. A statement of the legal issues to be raised in the proposed new pleading and whether he has raised the same issues in other proceedings in any Federal or State Court. If so, he must cite the case number and docket number where the legal issues previously have been raised.

C. A notarized affidavit, in proper legal form, which certifies that, to the best of Plaintiff’s knowledge, the legal arguments being raised are not frivolous or made in bad faith, they are warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, that the action is not interposed for any improper purpose such as delay, harassment, or to needlessly increase the cost of litigation, and that he will comply with all federal and local rules of this Court.”

Case closed for Medearis and his client, unless they fancy a trip to CA5.

There’s cross motions for summary judgment, and Bandit lawyer Dave Medearis is in the thick of these proceedings.

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Third-Party Defendant, Marievic Gaviola and files this Reply in Support of Her Motion for Summary Judgment against Wells Fargo Bank, N.A. as Trustee for the Carrington Mortgage Loan Trust, Series 2007-FRE1, Asset-Backed Pass-Through Certificates’ (the “Trustee”) claims and would show the court as follows:

I.  ​INTRODUCTION & SUMMARY OF ARGUMENT

1.                    This case hinges on whether the statute of limitations expired on the Trustee’s ability to collect on a Home Equity Loan (“Loan”). The four-year limitation expired twice after the Trustee accelerated the Loan and the Trustee relies on revisionist interpretations of its clear intent to accelerate or de-accelerate the Loan to try and save its foreclosure claim. See Exhibits 1 and 2 in Third Party Defendant Marievic Gaviola’s Motion for Summary Judgment (Dkt 22). Furthermore, even if the Trustee can revive its claim against Rene Gaviola through a saving statute, that statute does not apply to Mrs. Gaviola. In this case, Mrs. Gaviola is solely a defendant, asserting an affirmative defense to the third-party plaintiff’s untimely foreclosure suit against her.

II.  ​REPLY TO DEFENDANT’S OBJECTIONS TO EVIDENCE

2.                  In its Objections and Motion to Strike Mrs. Gaviola’s summary judgment evidence, the Trustee’s claims that Mrs. Gaviola’s evidence amounts to hearsay and lacks personal knowledge are false because Mrs. Gaviola’s evidence are statements made by the Trustee that Mrs. Gaviola personally received. See Third Party Defendant’s Motion for Summary Judgment Exhibits 1 and 2 Dkt 22, and Defendant’s Objections and Motion to Strike Dkt. 24.

3.                  The out of court statements that the Trustee seeks to strike are letters sent by the Trustee to Mrs. Gaviola and are not hearsay under USCS Fed Rules Evid R 801(d)(2) as an opposing party statement. Furthermore, Mrs. Gaviola has personal knowledge of these letters because she personally received them from the Trustee.

4.                  Mrs. Gaviola moved for summary judgment because the statute of limitations has expired after the Trustee accelerated the Loan. As evidence, she provided letters she received from the Trustee that say the Loan has been accelerated. The Trustee’s claims that she cannot have personal knowledge of these simple facts are conclusory and false. Furthermore, the Trustee’s claims that Mrs. Gaviola cannot have personal knowledge that the loan was accelerated or that the statute of limitations has expired has no merit whatsoever. Mrs. Gaviola personally received these letters from the Trustee that say the loan was accelerated and a declaration attesting to those facts is proper.

III.   ​ARGUMENT & AUTHORITIES

5.                  A defendant who moves for summary judgment must either negate one essential element of the non-movant’s cause of action or prove all essential elements of an affirmative defense. Tex. R. Civ. P. 166a(c). “A person must bring suit for the recovery of real property under a real property lien or the foreclosure of a real property lien not later than four years after the day the cause of action accrues.” Tex. Civ. Prac. & Rem. Code § 16.035(a).

A. Proper notice is a defense of the borrower, not the lender.

6.                  When the Trustee sent each notice of acceleration, the documents speak for themselves and serve as admissions of a party opponent. The claim that these notices of acceleration are not sufficient proof the loan was accelerated by the third-party plaintiffs and/or their predecessors in interest is contrary to the plan assertions made in the documents. To the extent that some other condition precedent could have existed to effectuate the acceleration (which the third-party plaintiffs imply but do not prove), it was clearly waived.

7.                  There was no ambiguity in the Trustee’s intent to accelerate on May 16, 2013, and again on October 9, 2018. Both letters were titled “NOTICE OF ACCELERATION” and plainly state, “The Beneficiary has accelerated the maturity date of the Note and has declared all sums secured by the Deed of Trust to be immediately due and payable.” Also, the third party plaintiffs pleads contradictory facts their his Response by claiming in one section the Loan was never accelerated because they didn’t send a required notice, and in another, that the Trustee’s acceleration was abandoned. See Defendant’s Response Summary Judgment (Dkt. 25). The Trustee skirts around this issue carefully because if it did accelerate the Loan, which it did via the Notice of Acceleration letters, then the statute of limitations has expired, and Mrs. Gaviola is entitled to summary judgment.

B. The Trustee has a de-acceleration letter and did not send it until after the statute of limitations had expired, if at all.

8.                  Texas Courts and Federal District Courts applying Texas law have held “representing to the mortgagor that payment of less than the entire obligation will bring the loan current may amount to abandonment or waiver of the acceleration as a manifestation of “actual intent to relinquish” it.” Martin v. Fannie Mae, 814 F.3d 315, 318-19 (5th Cir. 2016) (citing Boren v. United States Nat’l Bank Ass’n, 807 F.3d 99, 105 (5th Cir. 2015)); See also, Cross v. Bank of N.Y. Mellon, No. H-20-1322, 2021 U.S. Dist. LEXIS 117033, at *14 (S.D. Tex. 2021) (“The effectiveness of a purported abandonment can be determined by reference to traditional principles of waiver, which include “(1) an existing right, benefit, or advantage held by a party; (2) the party’s actual knowledge of its existence; and (3) the party’s actual intent to relinquish the right, or intentional conduct inconsistent with the right.”).

9.                  As shown above, the Trustee unequivocally accelerated the Loan on May 16, 2013, and again on October 9, 2018. The Trustee argues that it de-accelerated the loan on July 21, 2015, and again on August 24, 2021, but the letters it sent were offers of reinstatement, not a de- acceleration. The offers of reinstatement did not assert any intent to de-accelerate and if the Trustee had intended to de-accelerate the Loan, it would have sent its de-acceleration letter, like it did on July 27, 2017. See Exhibit 1-L in Defendant’s Response to Motion for Summary Judgment Dkt 23. This retroactive manipulation of its intent to save its claim is also evidenced by their failure to include the acceleration letters in their exhibits. See Defendant’s Motion for Summary Judgment (Dkt. 21).

C. The Saving Statute does not apply to Third-Party Claims

10.  Finally, the Trustee argues that Tex. Civ. Prac. & Rem. C. 16.069 operates to save the Trustee from the statute of limitations because it bought a timely counterclaim against Rene Gavioa in response to his declaratory judgment suit.

11.  The argument also fails, because the claim brought against Mrs. Gaviola is not a counter or cross claim, but a third-party action. Section 16.069 does not provide a statute of limitations saving exception for third-party claims. See SJW Prop. Commerce, Inc. v. Southwest Pinnacle Props., 314 S.W.3d 166, 2010 (Tex. App. Corpus Christi Apr. 28, 2010); J.M.K. 6, Inc. v. Gregg & Gregg, P.C., 192 S.W.3d 189, 199 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

IV.   ​CONCLUSION

12.              Mrs. Gaviola is entitled to summary judgment because the statute of limitations expired on the Trustee’s right to collect on the Loan. Mrs. Gaviola has provided sufficient evidence to show the loan was accelerated, twice, that the statute of limitations expired, twice, and the Trustee’s improper application of the Texas Property code and saving statute does not upend Mrs. Gaviola’s right to summary judgement.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Third-Party Defendant, Marievic Gaviola, prays the court dismiss the Third-Party Plaintiffs’ claims against her.

Respectfully Submitted, MEDEARIS LAW FIRM, PLLC

By:

David Medearis,
SBN 24041465
Fed ID 557586
Medearis Law Firm, PLLC
1560 W. Bay Area Blvd., Suite 304
Friendswood, TX 77546
dmedearis@medearislaw.com
ATTORNEY FOR THIRD-PARTY

DEFENDANT Marievic Gaviola

U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:22-cv-03563

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Scheduling Order after Conf.

ORDER

granting 16 Motion for Continuance;

granting 16 Motion for Emergency

( Initial Conference set for 3/24/2023 at 09:00 AM in Courtroom 9A before Judge Alfred H Bennett).

(Signed by Judge Alfred H Bennett)

Parties notified.(ledwards, 4) (Entered: 03/02/2023)

U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:22-cv-03563

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