                                                                                               ACCEPTED
                                                                                           14-13-00931-CV
                                                                           FOURTEENTH COURT OF APPEALS
                                                                                        HOUSTON, TEXAS
                                                                                     6/29/2015 11:32:16 PM
                                                                                     CHRISTOPHER PRINE
                                                                                                    CLERK

             IN THE FOURTEENTH COURT OF APPEALS
                       HOUSTON, TEXAS
                                                                        FILED IN
ALBERT MORRIS, ET. AL.                      §                  14th COURT OF APPEALS
                                                                  HOUSTON, TEXAS
        Appellants,                         §                  6/29/2015 11:32:16 PM
                                            §                  CHRISTOPHER A. PRINE
vs.                                         § CASE NO.: 14-13-00931-CVClerk
                                            § TRIAL COURT:12-DCV-197669
SAND CANYON, F/K/A                          §
OPTION ONE, ET. AL.                         §
        Appellees.                          §

              APPELLANTS’ MOTION FOR REHEARING

TO THE HON. COURT:

      THIS MOTION PRAYS FOR RE-HEARING, A RE-SUBMISSION OF

This Case for Court’s review; this, because the opinion rendered on May 14th

2015 affirming the trial court’s decision, was in error.

      In Lowe v. Lowe, Cause number 14-96-01329-CV, (14th Court of Appeals –

June 18th 1998) a case similar to this instant case, this Court ruled that the case

law of Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939) did

apply, and that case was remanded for new trial. As the circumstance of Lowe is

similar to this case, the Court should have equally found that Craddock applies

in this case, as the Court found in Lowe.

       Appellant Albert Morris showed in the Brief that his failure to appear for

the summary judgment motion hearing, was not intentional or result of

conscious indifference, but was due to accident or mistake; this being the first

prong in Craddock. At that time, Albert Morris had series of surgeries in which

                                                                                      1
he was physically incapacitated in a hospital bed, and could not have attended

the hearing at trial court. This fact was true and uncontroverted.

      For merit, Appellants further showed that they have meritorious claim

for a Bill of Review where an essential party was not party in the original suit;

this essential party was neither disclosed nor known to the Appellants at the

time it (American Home Mortgage Service Inc.) took the short gun approach

of self help in conducting a March 3rd 2009 foreclosure of their Home Equity

Loan without judicial consent. The attached document, shows that Wells Fargo

knew that the March 3rd 2009 foreclosure was conducted unlawfully; hence,

Wells Fargo attempt to “correct” the situation by foreclosing on same property

on October 4th 2014 – see attached Notice of Foreclosure.

      Contrary to the Court’s opinion on page 8 of the May 14th 2015

Opinion, Appellants did not waive this issue of Indispensable party; this is

because this fact was part of the trial court’s record; and such record was fully

furnished to this Court as part of the record on appeal. Also, failure of the

Court to review all matters before it, goes contrary to the basic law of trial de

novo in appeal of cases such as this where summary judgment was granted.

      For the third prong of the Craddock rule, Appellants filed a motion for

new trial when it would not cause delay of otherwise injure the prevailing party.

The matter between the litigants have gone on for some time, a continuance




                                                                                    2
(or new trial) of the summary judgment motion hearing would not have made

any difference, or caused any delay.

      In same Lowe v Lowe’s case, this Court in footnote 1 in it’s opinion, noted

that “the party need not satisfy all three prongs when the party did not receive

notice of the hearing or suit.” The Court further credited that view to a sister

Court in Bryant v. Gamblin, 829 S.W. 2d 228, 229 (Tex. App. – Eastland 1991,

writ denied). Appellants did not receive notice of the trial court’s hearing.

                                    PRAYER

      Appellants Urges this honorable Court to vacate it’s May 14th 2015

Opinion and Judgment, and Re-Hear this appeal for fairness and justice.

                                           Respectfully submitted,

                                               /s/ Albert Morris
                                           By:___________________
                                           Albert Morris
                                           P. O. Box 17026
                                           Sugar Land, Texas 77496
                                           713/931-8777; Fax: 832/217-2913
                                           Appellants


                       CERTIFICATE OF SERVICE

      I certify that copy of this motion was served all parties this 29th day of
June 2015, via e-file.

                                                   /s/ Albert Morris
                                                _____________________
                                                Albert Morris




                                                                                    3
                                       o                                                          ~     9314 7100 1170 0777 5929 88




                                     MACKIE WOLF                   ZmNI'Z & MANN, P.C.
                                                               ATIORNEYS AT LAW
                                                PHONE     (214) 635-2650   FAX   (214) 635-2686

              PARKWAY  OmCE Cmlm, Sum, 900                                                        UNDN PLA7A
                14160 NOR'J1t DALLAS PARKWAY                                           124 WE.'IT CAPITOL, Sur.m 1560
                    DAlLAS, TEXAS 75254                                                LmLE RocK, ARKA1~AS 72201
                 • i>ulAsu 1UI!l'Ol\'D 'JtI DArlAS 0Pl'1CIl


14-005112-670
November 18, 2014
VIA CERTIFIED MAILIRRR
AND REGULAR MAIL
TILDA MORRIS
54 TIIE OVAL
SUGAR LAND, TX 77479

Re:       Property Address:   54 THE OVAL, SUGAR LAND, TX 77479
          MWZ Case No.:       14-005112-670
          3 Day Notice to Vacate Prior to Filing Unlawful Entry and Detainer - Residential

PLEASE TAKE NOTICE: Pursuant to the tenns of the Deed of Trust that encumbered the above
referenced property a foreclosure sale was held on 1010412014. Our client, Wells Pargo B~
NA., as trustee for ACE Securities Cotp. Home Equity Loan Trust, Series 2004-0P1 Asset
Backed Pass-1hrough Certificates, Series 2004-0Pl, was the purchaser at the foreclosure sale
and based upon the Deed of Trust, you are hereby given this 3-Day Notice to Vacate. You must
completely vacate the leased premises by 11121/14.

Texas Property Code §24.005(b) provides in part:
If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at least three
days' written notice to vacate before the landlord files a forcible detainer suit.

If you fail to vacate by the above deadline, we will, on behalf of our client, Wells Fargo Bank,
NA., as trustee for ACE Securities Cotp. Home Equity Loan Trust, Series 2004-0P1 Asset
Backed Pass-Through Certificat~S, Series 2004-0Pl, file a Porable Detainer lawsuit against
you.

IF YOU ARE AN ACTIVE DUTY MEMBER OF THE UNITED STATES ARMED
FORCES OR A DEPENDENT OF AN ACTIVE DlITY SERVICEMEMBER, YOU MAY
BE ENTITLED TO RIGHTS AS PROVIDED IN THE SERVICEMEMBERS CIVR.
RELmF ACT. IN SUCH CASE, YOU OR YOUR ATI'ORNEY SHOULD CONTACT
TIllS LAW FIRM AND PROVIDE PROOF OF MILITARY SERVICE IMMEDIATELY
SO THAT THIS FIRM CAN DETERMINE IF YOU FALL UNDER TIlE PROTECTION
OF THE ACT. PLEASE CONTACT DON JOHNSON OR BRIAN OMMART AT (214)
635-2650.


                                                                                      STATE OF TEXAS
                                                                                      COUNTY OF FORT BEND
Loan No. 714mU47
Notice to Vaalte - Page 1 of 4
                               o                        o
TIllS NOTICE IS GIVEN PURSUANT TO APPLICABLE LAW AND IN NO WAY
IMPAIRS ANY OF THE O1HER REMEDIES OR RIGHTS OF 'IlIE OWNER~ EITHER
UNDER THE DEED OF TRUST OR UNDER APPLICABLE LAW.
If you have any questions please call our offices at (214) 635-2650.

Issued on November 18, 2014.




                                   Mackie Wolf Zientz & Mann, P.C.




                                                  STATE OF TEXAS
                                                  COUNTY OF FORT BEND
                                                  I ~e~eby certify this to be a true and correct copy of
Loan No.71433S1147                                onglnal record now on fii~.:dJUsti~:eace
Notice w Vaatte- Page 2 of 4                      Precinct 4. Certifi this              ay of     UKI/L '
                                                  20.l.!2-.             .        . . "._ ~    . '  7
                                                                  .         -"'-         ~  ~rk
                                                                    ustice of the eace, Pct 4
                                                                    OFFICIAL RECEIPT




                                                          Justice of the Peace, Precinct 4
Payor                                                                                                                                         Receipt No.
MORRIS, ALBERT 0                                                                                                                             41-63259
54 THE OVAL ST
SUGAR LAND, TX 77479                                    Judge                                                                            Transaction Date
                                                          Richard, Laura                                                                    02/19/2015
 Description                                                                                                                               Amount Paid

 Wells Fargo Bank, NA, as trustee for ACE Securities Cotp. Home Equity Loan Trust. Series 2004-0P1 Asset Backed Pass-Through
 Certificates, Series 2004-0P1
                  14-JEV41-08617
                  Wells Fargo Bank, NA, as trustee for ACE Securities Cotp. Home Equity Loan Trust, Series 2004-0P1 Asset Backed Pass-
                  Through Certificates, Series 2004-0P1 vs ALBERT MORRIS,Tilda Morris and All Occupants
                                             , Copy (Certified) 1st Page                                                                           5.00
                                                        Copies - Certified                                                                         5.00
                                                Copy (Certified) Additional Page                                                                   1,00
                                                        Copies - Certified                                                                         1.00
                                                SUBTOTAL                                                                                           6.00
                                           Remaining Balance Due: $0.00




                                                                                                               PAYMENTTOTALvP____________~6~.O~O~

                                                                                                                      Cash Tendered                6.00
                                                                                                                       Total Tendered              6.00
                                                                                                                              Change               000

                                         02/19/2015                           Cashier zapatern                            Audit
                                       <" 10:33 AM                            Station JP4R04                           5219019
                                                                    OFFICIAL RECEIPT
