                                                                                         ACCEPTED
                                                                                     04-15-00126-CV
                                                                         FOURTH COURT OF APPEALS
                                                                              SAN ANTONIO, TEXAS
                                                                                5/20/2015 3:46:58 PM
                                                                                      KEITH HOTTLE
                                                                                              CLERK


                          No.
                          No. 04-15-00126-CV
                              04-15-00126-CV

                    In the
                    3in the Court of ZippeaI5
                            Court of Appeals 4th COURT     FILED IN
                                                                OF APPEALS
                                                     SAN ANTONIO, TEXAS
           for the
           for tjjeFourth
                   jratirtbJudicial
                            YubitiatDistrict
                                      s i5trittofofTexas
                                                   1exa5
                                                    5/20/2015 3:46:58 PM

                         at San Zintortio
                         at &an Antonio               KEITH E. HOTTLE
                                                            Clerk


                       WELLS FARGO BANK, N.A.,
    as Trustee for Securitized Asset Backed Receivables L.L.C. 2005-FR4
           Mortgage Pass-Through Certificates Series 2005-FR4,

                                                                 Appellant,
                                       v.

                      KINGMAN HOLDINGS, L.L.C.,
              as Trustee of the Manderly Place 8118 Land Trust,

                                                                  Appellee.

                  Appeal from the 73rd Judicial District Court
                            Bexar County, Texas
                       Cause Number 2014-CI-17188

       APPELLANT’S UNOPPOSED MOTION TO DISMISS
       APPELLANT'S

TO THE HONORABLE COURT OF APPEALS:

      Appellant Wells Fargo Bank, N.A., as Trustee for Securitized Asset Backed

Receivables
Receivables L.L.C. 2005-FR4 Mortgage
            L.L.C. 2005-FR4 Mortgage Pass-Through
                                     Pass-Through Certificates
                                                  Certificates Series
                                                               Series 2005-

    (“Appellant”) respectfully
FR4 ("Appellant") respectfully moves
                               moves the Court to
                                               to dismiss
                                                  dismiss the
                                                           the above-captioned
                                                                above-captioned

        Appellee does
appeal. Appellee does not
                      not oppose this motion.

      1.    This is an
            This     an appeal
                         appeal from
                                 from aaJanuary
                                          January 21,
                                                   21,2015
                                                       2015no-answer
                                                            no-answer default
                                                                       default

judgment. On
judgment. On February
             February 20,
                      20, 2015,
                          2015, Appellant
                                Appellant filed a motion
                                                  motion for new trial with the

APPELLANT'S
APPELLANT’S UNOPPOSED MOTION
            UNOPPOSED MOTION TO D
                                DISMISS
                                 ISMISS                                   PAGE
                                                                          PAGE 1
      court. However,
trial court. However, the
                       the motion
                           motion for
                                   for new
                                        new trial
                                             trial was
                                                   was inadvertently
                                                        inadvertently filed under the

wrong cause number. Therefore,
                    Therefore, out
                               out of
                                   of an
                                      an abundance
                                         abundance of
                                                   of caution,
                                                      caution, Appellant filed a

notice of appeal
notice    appeal in the trial
                         trial court
                               court on
                                     on March
                                        March 6,
                                              6, 2015,
                                                  2015, and,
                                                         and, concurrently
                                                               concurrently with its

notice of appeal,
notice    appeal, Appellant
                  Appellant filed
                            filed with
                                  with this
                                       this Court
                                            Court aa motion
                                                     motion to extend
                                                               extend time
                                                                      time to file

notice of appeal.

      2.     On March 20, 2015, the Court denied as moot Appellant’s
                                                         Appellant's motion to

extend time to file its notice of appeal “because
                                         "because the motion for new trial was proper

and timely filed, making the notice of appeal timely as well.”
                                                        well."

      3.
      3.     Thereafter, on
             Thereafter, on April
                            April 1, 2015, the
                                  1, 2015,  the trial
                                                 trial court
                                                        court granted
                                                               granted Appellant's
                                                                       Appellant’s

Motion for New Trial and entered an order reinstating the case. See Exhibit 1-A.

      4.        light of
             In light of the
                          the trial
                               trial court's
                                      court’s order
                                               order granting
                                                      granting aa new
                                                                   new trial,
                                                                        trial, Appellant's
                                                                               Appellant’s

appeal challenging
appeal challenging the
                   the January
                       January 21,
                               21, 2015
                                   2015 default
                                        default judgment
                                                judgment isis moot. Accordingly,
                                                              moot. Accordingly,

                          Appellate Procedure
pursuant to Texas Rule of Appellate Procedure 42.1(a)(1), Appellant requests that

the Court enter an order dismissing this appeal.

                                      PRAYER

      WHEREFORE, Appellant
      WHEREFORE, Appellantrequests
                           requeststhat
                                    thatthe
                                         the Court
                                             Court grant
                                                   grant this motion and
                                                         this motion

dismiss this
dismiss this appeal. Appellant prays
             appeal. Appellant prays for such other
                                     for such other relief
                                                    relief to which it may be
                                                           to which

entitled in law or in equity.




APPELLANT’S UNOPPOSED
APPELLANT'S UNOPPOSED MOTION TO D
                      MOTION    DISMISS
                                 ISMISS                                           PAGE 2
                                                                                  PAGE
                                      Respectfully submitted,

                                      LOCKE LORD LLP


                                      B. David
                                          david L. Foster
                                      State Bar No. 24031555
                                      John W. Ellis
                                      State Bar No. 24078473
                                      600 Congress Ave., Suite 2200
                                      Austin, Texas 78701
                                      (512) 305-4700
                                      (512) 305-4800 (Facsimile)
                                      dfoster@lockelord.com
                                      jellis@lockelord.com

                                      Thomas G. Yoxall
                                      State Bar No. 00785304
                                      2200 Ross Avenue, Suite 2200
                                      Dallas, Texas 75201
                                      (214) 740-8000
                                      (214) 740-8800 (Facsimile)
                                      tyoxall@lockelord.com
                                      tyoxall@lockelord.corn

                                      Attorneys for Appellant Wells Fargo
                                      Bank, N.A.,  as Trustee
                                             NA., as  Trustee for Securitized
                                      Asset Backed Receivables L.L.C. 2005-
                                      FR4 Mortgage Pass-Through
                                      Certificates Series 2005-FR4




APPELLANT’S UNOPPOSED
APPELLANT'S UNOPPOSED MOTION TO D
                      MOTION    DISMISS
                                 ISMISS                                 PAGE 3
                                                                        PAGE
                      CERTIFICATE OF CONFERENCE
                              conferred via email with counsel
      I hereby certify that I conferred                 counsel for Appellee,
                                                                    Appellee, Justin
Nichols, on
Nichols,     May 20,
          on May   20, 2015,
                        2015, regarding
                                regarding this
                                           this motion,
                                                motion, and
                                                         and counsel
                                                              counsel for
                                                                       for Appellee
                                                                            Appellee
confirmed that Appellee is unopposed to this motion.



                                      Counsel
                                       0 sel for Appellant
                                         i


                         CERTIFICATE OF SERVICE

       I hereby certify that on the 20th day of May 2015, a true and correct copy of
     foregoing Motion
the foregoing   Motion waswas served
                               served via
                                        viae-service
                                            e-servicethrough
                                                       throughefile.txcourts.gov
                                                               efile.txcourts.gov on
                                                                                  on
Appellee through counsel of record, listed below:

      Justin P. Nichols
      Justin D. Niedens
      The Nichols Law Firm, P.L.L.C.
      115 E. Travis Street, Suite 1740
      San Antonio, Texas 78205
      (210) 354-2300 Telephone
      (800) 761-5782 Facsimile
      justin@thenicholslawfirm.com
      Attorneys for Appellee



                                          Counsel for Appellant




APPELLANT’S UNOPPOSED
APPELLANT'S UNOPPOSED MOTION TO D
                      MOTION    DISMISS
                                 ISMISS                                      PAGE 4
                                                                             PAGE
Exhibit 1
                    DECLARATION OF
                    DECLARATION OFJJOHN
                                    OHN W.
                                        W. E
                                           ELLIS
                                            LLIS
                       _____________________________________

STATE OF TEXAS                            §
                                          §
COUNTY OF TRAVIS                          §

      1.
      1.     My name is John W. Ellis. II am
                                          am over
                                             over twenty-one
                                                   twenty-one years of age and fully

competent
competent to
          to give the testimony
                      testimony in this declaration,
                                        declaration, and
                                                     and I would so testify if called

upon to do so in a court of law. IIhave
                                    havepersonal
                                        personal knowledge
                                                 knowledge of
                                                           of all
                                                              all facts
                                                                  facts stated herein,

and they are all true and correct.

      2.
      2.     I am an associate
                     associate in the Litigation
                                      Litigation Department
                                                 Departmentof
                                                            ofLocke
                                                              LockeLord
                                                                    LordLLP.
                                                                         LLP. I

am one
am one of
       of the
           theattorneys
               attorneys representing
                          representing Wells
                                       Wells Fargo
                                             Fargo Bank,
                                                   Bank, N.A.,
                                                         N.A., as Trustee
                                                                  Trustee for
                                                                          for

Securitized
Securitized Asset        Receivables L.L.C.
            Asset Backed Receivables L.L.C. 2005-FR4
                                            2005-FR4 Mortgage
                                                     Mortgage Pass-Through
                                                               Pass-Through

Certificates
Certificates Series
             Series 2005-FR4
                    2005-FR4 (“Wells
                             ("Wells Fargo”)        case numbered
                                     Fargo") in the case numbered 2014-CI-17188
                                                                  2014-CI-17188

and styled Kingman Holdings, L.L.C., as Trustee of the Manderly Place 8118 Land

Trust
Trust v. Wells Fargo
      v. Wells Fargo Bank,
                     Bank, NA.,
                           N.A., asasTrustee
                                      Trusteefor
                                               forSecuritized
                                                    Securitized Asset
                                                                 Asset Backed
                                                                        Backed

Receivables, L.L.C.
Receivables,        2005-FR4 Mortgage
             L.L.C. 2005-FR4 Mortgage Pass-Through
                                      Pass-Through Certificates
                                                   Certificates Series
                                                                Series 2005-

FR4, and Fremont Reorganizing Corporation f/k/a Fremont Investment & Loan (the

“Trial Court Case").
"Trial       Case”).

      3.
      3.     I have reviewed the document attached to this Declaration as Exhibit

1-A. The
1-A.  Thedocument
          document attached
                   attached to this
                                this Declaration
                                     Declaration as
                                                 as Exhibit
                                                    Exhibit 1-A
                                                            1-A is
                                                                is a true
                                                                     true and
                                                                          and

correct copy of the Order Granting Motion for New Trial signed and entered in the

Trial Court Case on April 1, 2015.


                                          1
                                    JURAT

      My name is John W. Ellis, my date of birth is December 2, 1983, and my

address is Locke Lord LLP, 600 Congress Avenue, Suite 2200, Austin, Texas

78701, U.S.A. I declare under penalty of perjury that the foregoing is true and

correct.

      Executed in Travis County, State of Texas, on the 20th day of May, 2015.




                                        2
Exhibit 1-A
                                  CAUSE NO. 2014-CI-17188

KINGMAN HOLDINGS, L.L.C., as                                       IN THE DISTRICT COURT
Trustee of the MANDERLY PLACE 8118
LAND TRUST,
                   Plaintiff

v.

WELLS FARGO BANK, N.A., as Trustee                                73RD JUDICIAL DISTRICT
for SECURITIZED ASSET BACKED
RECEIVABLES L.L.C. 2005-FR4
MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2005-FR4 and
FREMONT REORGANIZING
CORPORATION f/k/a FREMONT
INVESTMENT & LOAN,                                                 BEXAR COUNTY, TEXAS
                 Defendants.

                     ORDER GRANTING MOTION FOR NEW TRIAL

       On this day, came on for hearing the Motion for New Trial filed by iDefendant Wells

Fargo Bank, N.A., as Trustee for Securitized Asset Backed Receivables L.L.C. 2005-FR4

Mortgage Pass-Through Certificates Series 2005-FR4 ("Wells Fargo"). Upoln reviewing the

Motion for New Trial, any response thereto, arguments of counsel, the evidenLe presented, and

all other matters before the Court, the Court is of the opinion that the Motion for New Trial is

meritorious and should be granted.

       The Court hereby GRANTS the Motion for New Trial and orders that the Court's Final

Default Judgment signed in this Lawsuit on January 21, 2015 is VACATED AND SET ASIDE.

       The Court further orders that the Clerk of the Court REINSTATE this Lawsuit to the

Court's docket for further proceedings and trial.

       Signed this           day of April, 2015.


                                                    DISTRICT JUDGE



ORDER GRANTING MOTION FOR NEW TRIAL                                                   PAGE 1 OF 1
575729v.1 0103793/00286
