                                                                     ACCEPTED
                                                                 01-15-00838-CV
                                                      FIRST COURT OF APPEALS
                                                              HOUSTON, TEXAS
                                                           10/2/2015 10:38:19 AM
                                                           CHRISTOPHER PRINE
                                                                          CLERK


        No. -01-15-00838-CV
              -----
                                                FILED IN
                                         1st COURT OF APPEALS
                                             HOUSTON, TEXAS
         1st
   IN THE    COURT OF APPEALS            10/2/2015 10:38:19 AM
       FOR HOUSTON, TEXAS                CHRISTOPHER A. PRINE
                                                  Clerk




      INRE: CHARLES STORER,
AGENTUNDERAPOwtROFATTORNEYFOR
     KENNETH COOPER MCAFEE,
             RELATOR



 PETITION FOR WRIT OF MANDAMUS



               Respectfully Submitted,

               ANDERSON PFEIFFER, PC


               Esther Anderson
               SBN: 00792332
               Robert Teir (of Counsel)
               SBN: 00797940
               845 FM 517 West, Suite 200
               Dickinson, Texas 77539
               Telephone: (281) 488-6535
               Facsimile: (281) 488-0625
               Email: esther@probateguardianship.com

               Attorneys for Relator, Charles Storer, Power
               of Attorney for Kenneth Cooper McAfee
                  IDENTITY OF PARTIES AND COUNSEL

Relator, Charles Storer, Agent under a Power of Attorney for Kenneth Cooper
McAfee, certifies that the following is a complete list of the parties, the attorneys
and any other persons who have any interest in the outcome of this lawsuit.

1.    Relator:                         Charles Storer, Agent under a Power of
                                       Attorney for Kenneth Cooper McAfee

      Counsel:                         Esther Anderson
                                       Anderson Pfeiffer, PC
                                       SBN: 00792332
                                       845 FM 517 West, Suite 200
                                       Dickinson, Texas 77539-2903
                                       Office: 281-488-6535
                                       Facsimile: 281-614-5205
                                       Email: esther@probateguardianship.com

      Of Counsel:                      Robert Teir (of Counsel)
                                       SBN: 00797940
                                       845 FM 517 West, Suite 200
                                       Dickinson, Texas 77539
                                       Office: 832-365-1191
                                       Facsimile: 832-550-2700
                                       Email: rob@teirlaw.com

2.    Respondent:                      Honorable Loyd Wright
                                       Judge, Probate Court No. 1
                                       Harris County, Texas
                                       201 Caroline, 6th Floor
                                       Houston, Texas 77002




                                          ii
3.   Real Party in Interest:   Rosemary Foltyn and Jake Foltyn

     Counsel:                  Dean M. Blumrosen
                               SBN: 02517900
                               4615 Southwest Freeway, Suite 850
                               Houston, Texas 77027
                               Office: 713-524-2225
                               Facsimile: 713-524-5570
                               Email: Dblumrosenlaw@aol.com

4.   Real Party in Interest:   Rosemary Foltyn, Administratrix of The
                               Estate of Janet Foltyn McAfee, Deceased

     Counsel:                  Mary Elizabeth Duff
                               Mitchell & Duff, LLC
                               SBN: 06166880
                               21 0 Main Street
                               Richmond, Texas77469
                               Office: 281-341-1718
                               Facsimile: 281-239-7928
                               Email :eduff@mitchellandduff.com




                                 iii
                                         TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL ................................................................. II, III

TABLE OF CONTENTS ............................................................................................... IV, v

INDEX OF AUTHORITIES ...................................................................... VI, VII, VIII, IX, X

STATEMENT OF THE CASE .......................................................................................... XI

STATEMENT OF JURISDICTION ............................................................................... XIII

ISSUES PRESENTED ................................................................................................... XIII

         1.       Does the Probate Court have jurisdiction to
                  act without a pending cause of action? (No.)

         2.       Without a pending cause of action, are the
                  June 8, 2011 temporary injunction and the
                  May 18, 2015 Orders void? (Yes.)

         3.       Do the doctrines of collateral estoppel and
                  res judicata bar re-tracing of the Woodforest
                  account? (Yes.)

         4.       Do the two Orders amount to a violation of
                  K. McAfee's due process rights? (Yes.)

         5.       Do the two Orders amount to an abuse of
                  discretion? (Yes.)


STATEMENTOFFACTS .................................................................................................. 1

SUMMARY OF ARGUMENT ......................................................................................... 11




                                                           iv
ARGUMENT .................................................................................................................... 13

          I.        This case warrants mandamus relief.

          II.       The Probate Court does not have jurisdiction
                    to act without a pending cause of action.

          III.      Without a pending cause of action, the
                    temporary injunction and the May 18, 2015
                    Order are void.

          IV.       Res Judicata and Collateral Estoppel barre-
                    tracing of the Woodforest account.

          V.        The Estate's claims cannot be satisfied from
                    the Woodforest account or assets stemming
                    from the Woodforest account and continued
                    obstruction of these funds violates due
                    process and constitutes an abuse of
                    discretion.

PRAYER ...........................................................................................................................45

CERTIFICATE OF SERVICE ......................................................................................... 47

CERTIFICATE OF COMPLIANCE ................................................................................. 48

RULE 52.3(1) CERTIFICATION ..................................................................................... .49

APPENDIX ....................................................................................................................... 50




                                                                 v
                                  INDEX OF AUTHORITIES

CASES                                                                                             PAGE(S)

360 Degree Commc 'ns Co. v. Grundman,
     937 S.W.2d 574 (Tex. App.-Texarkana 1996, no writ) ............................ 22

Amstadt v. US. Brass Corp.,
     919 S.W.2d 644 (Tex. 1996) ........................................................................ 37

Barr v. Resolution Trust Corp.,
      837 S.W.2d 627 (Tex. 1992) ..................................................... 25, 26, 38, 42

Benson v. Wanda Petroleum Co.,
     468 S.W.2d 361 (Tex. 1971) ........................................................................ 37

Big D Props., Inc. v. Foster,
      2 S.W.3d 21 (Tex. App.-Fort Worth 1999, no pet.) .................................. 22

Butnaru v. Ford Motor Co.,
     84 S.W.3d 198 (Tex. 2002) .......................................................................... 21

Crowson v. Wakeham,
     897 S.W.2d 779 (Tex. 1995) ........................................................................ 40

Cunningham v. Parkdale Bank,
     660 S.W.2d 810 (Tex. 1983) ............................................................. 17, 18,19

Dionne v. Bouley,
     757 F.2d 1344 (1st Cir. 1985) ...................................................................... 44

Eagle Props., Ltd. v. Scharbauer,
      807 S.W.2d 714 (Tex. 1990) .................................................................. 35,37

Eastern Energy, Inc. v. SBY P'ship,
      750 S.W.2d 5 (Tex. App.-Houston [1st Dist.] 1988, no writ) ................... 25

EOG Res., Inc. v. Gutierrez,
     75 S.W.3d 50 (Tex. App.-San Antonio 2002, no pet.) .............................. 22


                                                     vi
Evans v. C. Woods, Inc.,
      34 S.W.3d 581 (Tex. App.-Tyler 1999, no pet.) ....................................... 22

Goldstein v. Comm 'n for Lawyer Discipline,
      109 S.W.3d 810 (Tex. App.-Dallas 2003, pet. denied) ............................. 38

Houtex Ready Mix Concrete & Materials v. Eagle Canst. & Envtl. Servs., L.P.,
     226 S.W.3d 514 (Tex. App.-Houston [1st Dist.] 2006, no pet.) ............... 38

In re Cerberus Capital Mgmt., L.P.
       164 S.W.3d 379 (Tex. 2005) (orig. proceeding) .................................... 14,45

In re Dickason,
       987 S.W.2d 570 (Tex. 1998) .................................................................. 13, 15

In re Francis,
       186 S. W.3d 534 (Tex. 2006) ........................................................................ 16

In re Mask,
       198 S.W.3d 231 (Tex. App.-San Antonio 2006, orig. proceeding) .......... 15

In re Pierce,
       No. 13-12-00125-CV, 2012 WL 3525638
       (Tex. App.-Corpus Christi Aug. 10,2012, orig. proceeding)
       (mem. op.) .................................................................................. 14, 15, 16, 45

In re Sw. Bell Tel. Co.,
       35 S.W.3d 602 (Tex. 2000) (orig. proceeding) (per curiam) .................. 13, 15

InterFirst Bank San Felipe v. Paz Constr. Co.,
      715 S.W.2d 640 (Tex. 1986) (per curiam) ............................................. 13,22

Johnson & Higgins ofTex., Inc. v. Kenneco Energy, Inc.,
      962 S.W.2d 507 (Tex. 1998) ...................................................... 27, 32, 33,36

Lehmann v. Har-Con Corp.,
     39 S.W.3d 191 (Tex. 2001) .......................................................................... 40



                                                        vii
Logan v. McDaniel,
     21 S.W.3d 683 (Tex. App.-Austin 2000, pet. denied) ............................... 40

Lozano v. Lozano,
     975 S.W.2d 63 (Tex. App.-Houston [14th Dist.] 1998, pet. denied) ........ 28

Lucik v. Taylor,
      596 S.W.2d 514 (Tex. 1980) ........................................................................ 18

Murray v. 0 & A Express, Inc.,
     630 S. W.2d 633 (Tex. 1982) ........................................................................ 18

Parklane Hosiery Co. v. Shore,
      439 u.s. 322 (1979) ..................................................................................... 37

Phillips v. Allums,
       882 S.W.2d 71 (Tex. App.-Houston [14th Dist.] 1994, writ denied) ........ 37

Quinney Elec., Inc. v. Kondas Entm 't, Inc.,
     988 S.W.2d 212 (Tex. 1999) (per curiam) ................................................... 26

Qwest Commc 'ns Corp. v. AT&T Corp.,
     24 S.W.3d 337 (Tex. 2000) (per curiam) ............................................... 13, 22

Rexrode v. Bazar,
     37 S.W.2d 614 (Tex. App.-Amarillo 1997, no writ) ........................... 34,41

Roark v. Allen,
     633 S.W.2d 804 (Tex. 1982) ........................................................................ 18

Robbins v. HNG Oil Co.,
     878 S.W.2d 351 (Tex. App -Beaumont 1994, writ dism'd w.o.j.) ............ 37

Scurlock Oil Co. v. Smithwick,
      724 S.W.2d 1 (Tex. 1986) ............................................................................ 38

Smith v. Lanier,
      998 S.W.2d 324 (Tex. App.-Austin 1999, pet. denied) ........................ 17,18



                                                       viii
State & Cty. Mut. Fire Ins. v. Miller,
       52 S.W.3d 693 (Tex. 2001) .......................................................................... 28

State v. Traylor,
       374 S.W.2d 203 (Tex. 1963) .................................................................. 17, 19

Sysco Food Servs., Inc. v. Trapnell,
      890 S.W.2d 796 (Tex. 1994) ................................................ 26, 27, 32, 37,38

Tankersley v. Durish,
     855 S.W.2d 241 (Tex. App.-Austin 1993, writ denied) ............................ 38

Tex. Dep 't ofPub. Safety v. Petta,
      44 S.W.3d 575 (Tex. 2001) ............................................................... 27, 28,37

Texas Natural Res. Conservation Comm 'n,
      85 S.W.3d 201 (Tex. 2002) (orig. proceeding) ............................................ 15

Walling v. Metcalfe,
      863 S.W.2d 56 (Tex. 1993) (per curiam) ..................................................... 24




                                                     ix
RULES

TEX. R. CIV. P.
          § 2 ........................................................................................................................... 18
          § 22 ......................................................................................................................... 18
          § 97 ......................................................................................................................... 42
          § 683 ................................................................................................................. 18, 24

STATUTES

TEXAS ESTATE CODE
          § 22.029 .................................................................................................................. 24
          § 31.001 ............................................................................................................. 17, 18
          § 31.002 ............................................................................................................ 17, 18
          § 32.001 .................................................................................................................. 17
          § 402.001 ............................................................................................................... 17

TEXAS PROP. CODE
          § 42.0021(a)

42 U.S.C. 407 ................................................................................................... 12, 31, 32,44




                                                                    X
                     STATEMENT OF THE CASE


Nature of the Case   The Probate Court granted an independent estate

                     administration m one cause number, and heard a

                     wrongful death proceeding in another cause number. The

                     Probate Court issued a temporary injunction in the estate

                     administration.        A final judgment was entered in the

                     wrongful death proceeding, but no claims were filed in

                     the estate administration.



Probate Court        Probate Court No. 1 of Harris County, Texas

                     Hon. Loyd Wright, Presiding



Disposition Below    The Probate Court refused to fully lift the temporary

                     injunction and instead ordered that a portion of funds in

                     an account containing only social security benefit

                     proceeds be turned over to the County Clerk's registry.




                                       xi
                      STATEMENT OF JURISDICTION

     The Court has jurisdiction to issue a writ of mandamus under TEX. Gov'T

CODE §22.22l(b)(l).




                                    xii
                             ISSUES PRESENTED

      The Probate Court entered an order declaring Kenneth McAfee's account at

Woodforest National Bank ending in -404 exclusively holds his social security

benefit proceeds that are exempt from garnishment.       Subsequently, the Probate

Court refused to fully lift a temporary injunction on this account and ordered a

portion of such funds to be turned over to the County Clerk's registry for the

benefit of the estate of Janet Foltyn McAfee, Deceased until the nature of two

deposits at issue has been determined.

1.    Does the Probate Court have jurisdiction to act without a pending cause of

      action? (No.)

2.    Without a pending cause of action, are the June 8, 2011 temporary

      injunction and the May 18, 2015 Orders void? (Yes.)

3.    Do the doctrines of collateral estoppel and res judicata bar re-tracing of the

      Woodforest account? (Yes.)

4.    Do the two Orders amount to a violation ofK. McAfee's due process rights?

      (Yes.)

5.    Do the two Orders amount to an abuse of discretion? (Yes.)




                                         xiii
                             STATEMENT OF FACTS

        Kenneth Cooper McAfee ("K. McAfee" herein) was convicted of a criminal

offense involving the death of his wife, Janet Foltyn McAfee, and is currently

serving his sentence at a Texas correctional institution. Janet McAfee died on May

8, 2010.

        On June 8, 2010, Janet McAfee's mother, Rosemary Foltyn, was appointed

Independent Administrator of Janet McAfee's estate by the Probate Court No. 1 of

Harris County, Texas under Cause no. 396,935. Rosemary Foltyn, in this capacity,

will be referred to herein as "the Estate."

        On February 23, 2011, Janet McAfee's parents, Rosemary and Jake Foltyn,

individually, and the Estate brought a wrongful death action against Kenneth

McAfee in the same Court, under the ancillary Cause no. 396,935-401.

        On March 31, 2011, the Estate obtained a Temporary Restraining Order in

the estate administration under Cause no. 396,935, which was eventually converted

to the June 8, 2011 Agreed Order for Temporary Injunction.             Tab 1.    The

Temporary Injunction enjoins K. McAfee from the use and control of his assets

and assets he shared with Janet McAfee and states that it is to remain in place until

the Court makes a determination of what property belongs to the Estate of Janet

McAfee or renders a full and final judgment in the wrongful death suit. Tab 1, at

p. 9.

                                         PAGE 1
        On March 21, 2014, the Probate Court granted a summary judgment in the

wrongful death action in favor of the Foltyns and awarded them each

$1,000,000.00. Tab 2.

        The June 8, 2011 Temporary Injunction remains in place today and affects

K. McAfee's Woodforest National Bank account that is the subject of this

mandamus proceeding and his 401(k) account at GMS.

The Foltyns seek writs ofgarnishment; two of K. McAfee's accounts are exempt.

        On October 9, 2014, the Foltyns sought Writs of Garnishment against K.

McAfee's bank accounts at The GMS Group, L.L.C., and Woodforest National

Bank under the ancillary wrongful death cause of action no. 396,935-401. Tab 3.

        Charles Storer, as agent under a power of attorney for K. McAfee, acted on

behalf ofK. McAfee in the 401 garnishment proceedings. On November 19, 2014

Storer filed a Motion to Quash Writs of Garnishment only to the extent that they

reached two particular accounts: a GMS account ending in -606 holding only K.

McAfee's tax-deferred retirement benefits from his previous employer, and the

Woodforest account ending in -404 holding only K. McAfee's Social Security

Disability Insurance benefits, claiming both are exempt from judgment creditors.

Tab4.




                                       PAGE2
       On January 7, 2015, the Estate entered the 401 garnishment proceedings by

filing a Notice to Court wherein the Estate objected to Storer's Motion to Quash

and claimed a community property interest in the two accounts Storer sought to

protect from garnishment. Tab 5. The Foltyns, individually, also filed a Response

to Charles Storer's Motion to Quash Writs of Garnishment, claiming that Charles

Storer did not have standing, and seeking a stay pending K. McAfee's compliance

with post-judgment discovery. Tab 6. On January 8, 2015, the parties attended a

hearing, which was ultimately continued by the Court until the issues of standing

and post judgment discovery were addressed. Tab 7. 1

       On January 22, 2015, the Court heard arguments of counsel regarding the

writs and Storer's Motion to Quash. Tab 8. All counsel agreed that the writs on

the Woodforest -404 account should be quashed because it held K. McAfee's

401(k) and social security benefits. Tab 8, at p. 4, Ins. 1-9; at p. 8, Ins. 11-15 and

at p. 18, Ins. 15-18. All counsel also agreed the Foltyns should receive the balance

in all of the remaining accounts. Tab 8. However, there was disagreement over

whether the Order should include language to release the temporary injunction, and

to what extent. Tab 8.




1
 The January 8, 2015 Reporter's Record states Cause No. 396,935, when it should actually state
Cause No. 396,935-401.
                                            PAGE3
      The Estate did not want to release the temporary injunction on the 401(k)

account (GMS -606) because of its alleged verbal claim for Janet McAfee's

potential community property interest. Tab 8. The Foltyns did not want to release

either of the two accounts, their reason being, "I don't think [the Estate] has had a

complete [opportunity] to review and look at everything on the Woodforest

account." Tab 8, at p. 3, Ins. 21 through p. 4, ln. 1.

      The Court inquired more than once if the Estate had enough information to

determine its claims. Tab 8. The Estate's response was that it was "reasonably

sure" that the 401(k) was the only issue and that the Woodforest account held only

K. McAfee's social security benefits, to which they had no claim. Tab 8, at p. 17,

throughp.18, lns.1-25.

      The Foltyns and the Estate made no argument contrary to Storer's argument

in his Motion to Quash or his oral arguments that the Woodforest -404 account

held only K. McAfee's social security benefits and the Court considered the

proposed orders. Tab 8, at p. 21, Ins. 6-8.

      On January 27, 2015, the Probate Court entered an Order Partially Granting

Motion to Quash Writs of Garnishment. Tab 9. The Probate Court found that both

the GMS -606 account and the Woodforest -404 account were exempt from

garnishment and the writs against these two accounts were quashed. Tab 9, at p. 2.

The Probate Court further found that K. McAfee's remaining accounts at GMS

                                         PAGE4
(ending in -008 and -628) remained subject to the writs and that payment from

such accounts shall issue to the Foltyns "upon receipt of an order releasing the

Agreed Order for Temporary Injunctions in Cause No. 396,935; In the Estate of

Janet Foltyn McAfee, Deceased, dated June 8, 2011." Tab 9, at p. 3.

      Specific language of the Order, as it relates to the Woodforest social security

account, reads:

      "On this day came to be considered the Motion to Quash Writs of
      Garnishment filed by Charles Storer, Power of Attorney for Kenneth
      Cooper McAfee. After review and consideration of said Motion, the
      evidence, the responses, and the arguments of counsel, the Court finds
      the following:

      5.     The Woodforest account ending in 404 holds, exclusively, social
             security benefit proceeds of Kenneth C. McAfee which benefits
             are exempt from garnishment under 42 U.S.C. 407. 42 U.S.C.
             provides an absolute exemption and there are no statutory
             exceptions to same. Because the Woodforest account ending in
             404 contains only funds exempted from garnishment, the writ
             directed at Woodforest as to Kenneth McAfee's account ending
             in 404 should be quashed."

      Tab 9, at p. 2.

The parties deal with the temporary injunction in the estate administration.

      On February 10, 2015, Storer filed a Motion to Partially Release Temporary

Injunction in the estate administration cause (396,935) regarding the exempt

Woodforest social security account and the non-exempt GMS accounts payable to

the Foltyns (ending in -008 and -628). Tab 10. On March 6, 2015, the Estate filed

its own Motion to Partially Release Temporary Injunction, in which it sought
                                       PAGES
release of only the non-exempt GMS accounts payable to the Foltyns (ending in -

008 and -628), and requested the temporary injunction otherwise remain in place,

without stating any reason why. Tab 11.

       On March 12, 2015, a hearing was held to consider the partial release of the

temporary injunction. Tab 12.2

       The Estate now resisted lifting the temporary injunction as to the

Woodforest social security account because it questioned the characterization of

two deposits that were made in the amounts of $25,162.66 on April 23, 2010, and

$9,735.92 on May 4, 2010. Tab 12, at p. 3, Ins. 10-24; at p. 8, Ins. 16-25; at p. 9,

Ins. 1-7; at p. 10, Ins. 13-21; at p. 15, Ins. 17-24; at p. 17, Ins. 6-10. The Estate

claimed it might have an interest of at least 50% in these deposits if they were

community property, and that this potential claim should be considered

"completely separate" from the garnishment proceedings brought by the Foltyns,

individually. Tab 12, at p. 8, Ins 16-25; at p. 9, Ins. 5-7.




2
  The March 12, 2015 Reporters Record states Cause No. 396,835-401 when it should actually
state Cause No. 396,935 or include both.
                                          PAGE6
       The Foltyns' argument to keep the temporary injunction in place was based

upon (1) the language in the January 27, 2015 Order was overbroad, and (2) the

Court should use its inherent authority to rule for the Estate's claim due to the

purported lack of information from K. McAfee. Tab 12, at p. 9, Ins. 21-25; at p.

10, Ins. 1-3; at p. 6lns. 10-25; at p. 7, Ins. 1-6; at p. 13, Ins. 23-25; at p. 14, lns. 1-

8.

       The language in the January 27, 2015 Order is not overbroad. It is true that

the Estate may have a community property interest inK. McAfee's 401(k) account

but the Woodforest social security account is different because it was traced and

found to include only K. McAfee's social security benefits, which benefits are his

separate property. Tab 9. Additionally, the Estate's own Inventory reveals the

Estate has had the information they are now seeking since at least August 26, 2011.

Tab 16, at p. 2.

      Storer reminded the Court that, under the doctrine of res judicata, it had

already found that every dime in the Woodforest account is K. McAfee's social

security benefits. Tab 12, at p. 7, Ins. 14-25; at p. 8, Ins. 1-13. In fact, the two

deposits in question were specifically traced in Storer's Motion to Quash and they

were shown to have been withdrawn close to the time of the deposits, leaving only

social security benefits in the social security account. Tab 4, at p. 10,        ~25,   and

Exhibit "A" to such Motion; Tab 12, at p. 11, Ins. 18-25. And with no objection or

                                          PAGE?
contrary evidence to Storer's tracing, or arguments of counsel, the Estate

previously admitted it was reasonably sure the Woodforest account held only K.

McAfee's social security benefits. Tab 8, at p. 18, Ins. 13-18. The Woodforest

social security account was traced, and that is what the Court found. Tab 9.

      That was indeed the purpose of Storer's Motion to Quash Writs of

Garnishment, to prove that the entire Woodforest account was made up only of his

social security benefits and nothing else. Tab 4. The Estate took the additional

step to voluntarily enter the garnishment proceeding, make its claim, and to sit

silent as to any of the details regarding the Woodforest social security account.

Tab 8, at p. 5, Ins. 5-18; at p. 12, Ins. 10-23; at p. 17, Ins. 18-24; at p. 18, lns.

13.23. Their new challenge to the characterization of two deposits is waived and is

ban·ed by collateral estoppel and res judicata.

      Nevertheless, on March 16, 2015, the Probate Court granted Rosemary

Foltyn's Motion, releasing only the non-exempt GMS accounts that were ordered

to be paid to the Foltyns (ending in -008 and -628), and continued the temporary

injunction.   Tab 13.   The Probate Court did not release K. McAfee's exempt

Woodforest -404 account. Tab 13.




                                        PAGES
Storer tries again.

       On April 15, 2015, Storer filed a Motion for Reconsideration ... and Motion

for Entry of Order Releasing Social Security Proceeds from Injunction, which was

amended on May 4, 2015. Tab 14 (First Amended Motion). 3 Storer urged the

Court again to release K. McAfee's social security proceeds and reminded the

Probate Court that a determination regarding the tracing of the funds in the

Woodforest account had already been made. Tab 14.

       On May 14, 2015, the Probate Court heard the matter again, and specifically

reconsidered the tracing of the two deposits and withdrawals at issue in the

Woodforest account. Tab 15, at p. 16, Ins. 15-25; at p. 17, Ins. 1-17. Again, there

was no contrary evidence presented against Storer's tracing, just arguments that

Storer should have to re-prove his tracing with clear and convincing evidence. Tab

15, at p. 10, Ins. 12-24.

       Storer explained some of the lingering questions that had been raised:

       First, because social security benefits are not community property, any claim

the Estate might have in the two deposits/withdrawals cannot be satisfied from the

social security account, but must be satisfied from other assets of K. McAfee. Tab

15, at p. 14, Ins. 6-15; Tab 14, at p. 9, ~iii.

3
  Because the parties and discussions had started to comingle between the attorneys involved in
the base and ancillary case, the First Amended Motion for Reconsideration was filed in both
causes, but the May 18, 2015 Order on same was signed in the wrongful death ancillary case
(396,935-401).
                                            PAGE9
      Second, the Estate indeed had possession of records showing the source of

the deposits since at least the time of filing the Estate inventory on September 26,

2011. Tab 16; Tab 15, at p. 12, Ins. 4-25; at p. 13, Ins. 1-17.

      Third, everyone participated in the January 22, 2015 hearing and had the

opportunity to propose language for the Court's January 27, 2015 Order that Mr.

Blumrosen claims is too broad. Tab 15, at p. 27, Ins. 11-25.

The Probate Court releases part of the social security account to K. McAfee, but

takes control of the remaining social security proceeds.

      On May 18, 2015, the Probate Court signed the Estate's Order on First

Amended Motion for Reconsideration ... and Motion for Entry of Order Releasing

Social Security Proceeds from lrifunction.... Tab 17. The Court found that Storer

did not prove the characterization of the two deposits by clear and convincing

evidence and ordered the Woodforest funds be released to K. McAfee, but for

$34,898.58 to be made payable to the County Clerk, for the use and benefit of the

Estate of Janet F oltyn McAfee, Deceased, until the nature of two deposits at issue

has been determined. Tab 17.




                                       PAGE10
         The Probate Court not only refuses to lift the temporary injunction as to all

of K. McAfee's social security benefits, but now has essentially garnished a large

part of the account ($34,898.58) to satisfy the Estate's alleged verbal claim. These

acts exceed the Court's authority and discretion over K. McAfee's social security

funds.

                           SUMMARY OF ARGUMENT

         Mandamus is appropriate to compel a trial court to rescind a void order, to

correct a clear abuse of discretion, and to preserve important substantive and

procedural rights from impairment and loss when appellate remedy to cure the

error is not adequate. These criteria are present here.

         The Probate Court does not have jurisdiction to act without a pending cause

of action. There are no pleadings filed in the estate administration against K.

McAfee, and there are no live pleadings remaining in the wrongful

death/garnishment proceedings at all. The Probate Court does not have jurisdiction

to handle estate claims sua sponte. Therefore, the temporary injunction should be

dissolved and the May 18, 2015 Order should be set aside for lack of jurisdiction.

         Additionally, without a pending cause of action, the temporary injunction

and the May 18, 2015 Order are void because an order for an injunction must set a

cause for trial. This requirement is mandatory and failure to comply makes the

temporary injunction and the order void, as they have turned into nothing short of a

                                         PAGE 11
permanent injunction. Therefore, the temporary injunction should be dissolved

and the May 18, 2015 Order should be set aside, both for being void.

      Furthermore, res judicata and collateral estoppel bar re-tracing of the

Woodforest account. Storer previously put on tracing evidence, without question

or objection, to show the Woodforest account holds only K. McAfee's social

security benefits, and nothing else. The Court heard and decided that this account

in fact holds only McAfee's social security benefits and is exempt from creditors,

no exception. Any later "questions" the Estate may have that the Woodforest

account needs to be traced again are waived and are barred by the doctrines of

collateral estoppel and res judicata.

      The Probate Court's most recent May 18, 2015 Order ignored Storer's

arguments concerning res judicata and invited further litigation.      Although the

Probate Court released a portion of the Woodforest account to K. McAfee, the

Court took a drastic step by ordering Woodforest to turn over $34,898.58 of such

account to the County Clerk's registry for the benefit of the Estate of Janet Foltyn

McAfee.    This was a violation of due process and contrary to the protections

provided by 42 U.S.C. 407. Such actions have amounted to an abuse of discretion

that needs to be conected.




                                        PAGE 12
                        ARGUMENT & AUTHORITIES

I.    This case warrants mandamus relief.

      Mandamus is appropriate to compel a trial court to rescind a void order, to

correct a clear abuse of discretion, and to preserve important substantive and

procedural rights from impairment and loss when appellate remedy to cure the

error is not adequate. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000)

(orig. proceeding) (per curiam) (adding that "mandamus is proper if a trial court

issues an order beyond its jurisdiction") (citing In re Dickason, 987 S.W.2d 570,

571 (Tex. 1998)).

      Void order

      The June 8, 2011 temporary injunction is void because the Probate Court

does not have jurisdiction, there are no pleadings on file, and there is no cause set

for trial. See Qwest Commc 'ns Corp. v. AT&T Corp., 24 S.W.3d 337, 337 (Tex.

2000) (per curiam); InterFirst Bank San Felipe v. Paz Constr. Co., 715 S.W.2d 640

(Tex. 1986) (per curiam).      The requirement for setting a cause for trial is

mandatory and must be strictly followed, or else the order is subject to being

declared void and dissolved.    See Qwest Commc 'ns Corp., 24 S.W.3d at 337;

InterFirst Bank San Felipe, 715 S.W.2d at 641. The temporary injunction should

have been rescinded by the trial Court and should be set aside by the Court of

Appeals.

                                       PAGE 13
       The May 18, 2015 Order directing $34,898.58 from K. McAfee's social

security account be deposited into the registry of the court for the benefit of Janet

Foltyn McAfee is void for the same reasons: the Probate Court does not have

jurisdiction, there are no pleadings on file, and there is no cause set for trial on the

determination of to whom the funds belong. This Order should be set aside by the

Court of Appeals.

      Clear abuse of discretion

      A court abuses its discretion "if it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law or if it clearly

fails to correctly analyze or apply the law." In re Pierce, No. 13-12-00125-CV,

2012 WL 3525638, at *2 (Tex. App.-Corpus Christi Aug. 10, 2012, orig.

proceeding) (mem. op.) (citing In re Cerberus Capital Mgmt., L.P., 164 S.W.3d

379, 382 (Tex. 2005) (orig. proceeding)).

      The law was clearly laid out as to why the temporary injunction should be

dissolved, at least in regards to the Woodforest account, for lack of jurisdiction -

no pleadings being on file and no cause being set for trial. Furthermore, it is clear

that the issue of tracing the Woodforest account had already occurred through the

Probate Court's January 27, 2015 Order, which determined that 100% of the funds

were K. McAfee's social security benefits, and nothing else.



                                        PAGE14
       The Probate Court's refusal to lift the temporary injunction, and instead to

take control of K. McAfee's funds and to hold them for the use and benefit of the

Estate, before it even receives what is being asked for, constitutes an abuse of

discretion.

       Appellate remedy not adequate

       Because the June 8, 2011 temporary injunction and the May 18, 2015 Order

are void, Storer need not show lack of an adequate appellate remedy, and

mandamus relief is appropriate. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.

2000) (orig. proceeding) (per curiam) (citing In re Dickason, 987 S.W.2d 570, 571

(Tex. 1998)). 4 Nevertheless, at this point in time, there will never be a final order

to appeal on the Probate Com1's seizure of K. McAfee's social security benefits

because there are no claims on file by the estate and because Storer can no longer

obtain a hearing with the Court. That is also why this proceeding is not subject to

an accelerated appeal, because there is no pending claim. See Texas Natural Res.

Conservation Comm 'n, 85 S.W.3d 201, 206-07 (Tex. 2002) (orig. proceeding)

(holding mandamus was available when "a restraint on conduct ... has yet to be

subject to a truly adversarial proceeding"); See In re Pierce, 2012 WL 3525638, at


4
  See also In re Pierce, No. 13-12-00125-CV, 2012 WL 3525638, at *4 (Tex. App.-Corpus
Christi Aug. 10, 2012, orig. proceeding) (mem. op.) ("temporary injunctions which do not
comply with 683 are void, and when the trial court's order is void, mandamus relief is available
regardless of whether there is an adequate remedy by appeal"); In re Mask, 198 S.W.3d 231,233
(Tex. App.-San Antonio 2006, orig. proceeding) (concluding that when an order is void, then
"mandamus relief is available regardless of whether there is an adequate remedy by appeal") .
                                            PAGE 15
*4 (writ of mandamus may be appropriate for reviewing a temporary injunction)

(citing In re Francis, 186 S.W.3d 534,538 (Tex. 2006)).

       There are also significant benefits to mandamus relief in this matter, due to

the federally mandated protection provided to K. McAfee's social security

benefits, which would be rendered moot absent review by mandamus. 5                    The

Probate Court has seized money that it had previously declared to be K. McAfee's

social security benefits. The United States legislature and Supreme Court have

made it painstakingly clear that social security proceeds are prohibited from

seizure in the legal process, regardless of the merits of the claim, including

community property claims. The Probate Court's rulings defeat the purpose of

these laws and place Storer in the position of having to continuously re-litigate the

exempt status of his social security benefits.            Appellate remedy would be

inadequate for K. McAfee to protect his social security funds, even if the Court had

seized them with jurisdiction and a proper order. Therefore, mandamus relief is

appropriate in this matter.

II.    The Probate Court does not have jurisdiction to act without a pending
       cause of action.

       According to arguments of the Foltyns and the Estate's counsel, the only

reason they sought to keep the temporary injunction in place was due to alleged


5
  See In re Pierce, 2012 WL 3525638, at *4 (discussing the benefits of mandamus relief when
there are other claims raised which would be rendered moot if not reviewed by mandamus).
                                          PAGE 16
community property claims the Estate may have against K. McAfee. 6 But without

any live pleadings on file, the Probate Court lacks jurisdiction to take any action in

this case, including the issuance of injunctive relief or taking control of an

individual's assets to hold in the registry of the Court for the benefit of someone

else.

        Texas Estates Code section 402.001 states that after the inventory has been

approved in an independent administration, the Probate Court can take no further

action of any nature unless specifically provided for by the Texas Estates Code.

See also State v. Traylor, 374 S.W.2d 203, 204 (Tex. 1963) (probate court has only

that jurisdiction conferred upon it by the Probate Code).

        The probate court is then vested with substantial "potential jurisdiction" to

hear almost any issue involving the estate or the personal representative, even

matters related to the settlement and partition of an estate.                          Cunningham v.

Parkdale Bank, 660 S.W.2d 810, 812 (Tex. 1983); TEX. ESTATES CODE§§ 32.001,

31.001, 31.002. The probate court can even have the power to determine

community property claims, characterize separate and community property

interests, and order the surrender of property held by a party to the suit. Smith v.

Lanier, 998 S.W.2d 324, 332, 336 (Tex. App.-Austin 1999, pet. denied) (probate
6
 Tab 8, at p. 3, Ins. 20-25; at p. 4, Ins. 1-7; at p. 5, Ins. 5-l 0; at p. 5, Ins. 14-19; at p. 8, Ins. 2-4;
at p. 11, Ins. 4-16; at p. 17, Ins. 18-25; at p. 18, Ins. 1- 24; Tab 12, at p. 3, Ins. 13-22; at p. 6, Ins.
10-25; at p. 7, Ins. 1-6; at p. 8, Ins. 16-25; at p. 9, Ins. 1-7; at p. 9, Ins. 21-25; at p. 10, Ins. 1-21;
at p. 12, Ins. 1-25; at p. 13, Ins. 1-6; at p. 15, Ins. 4-25; at p. 16, ln. 1; Tab 15, at p. 10, Ins. 1-21;
at p. 10, Ins. 7-24; at p. 11, Ins. 10-16; at p. 14, Ins. 16-25.
                                                  PAGE17
court can issue injunction against survivor's separate property pending declaratory

judgment action); Lucikv. Taylor, 596 S.W.2d 514,516 (Tex. 1980) (probate court

can issue injunction over estate property pending contest to administration).

      But there is no authority for a court to act on estate issues sua sponte. A

probate court's potential jurisdiction is "activated and becomes actual jurisdiction"

only after the filing of a petition, the subject matter of which is within the

jurisdiction of the court. Cunningham, 660 S.W.2d at 812 (probate court did not

have jurisdiction to enter judgment against independent administrator based solely

on substance of final account; pleadings required). Just as in any other type case, a

party must invoke a probate court's jurisdiction by filing an application, petition,

motion, action, claim, cause of action, or request of some nature.         See TEX.

ESTATES CODE§§ 31.001, 31.002.

      Pleadings create the foundation of due process: they defiJ!.e the issues and

give the opposing party information sufficient to enable him to prepare a defense.

Cunningham, 660 S.W.2d at 812-13 (citing Murray v. 0 & A Express, Inc., 630

S.W.2d 633, 636 (Tex. 1982); Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982)).

There is no exception simply because we are in probate court:

            "The Texas Rules of Civil Procedure govern proceedings
            in probate matters except in those instances in which a
            specific provision has been made to the contrary.
            Tex.R.Civ.P. 2. In Texas, '[a] civil suit in the district or
            county court shall be commenced by a petition filed in
            the office ofthe clerk.' Tex.R.Civ.P. 22." ld.
                                       PAGE18
         The Estate has no live pleadings in this case asking the Probate Court to do

anything or decide any matter. In fact, the Estate has never even asked the Court

to determine a marital property claim; it has only alluded throughout the hearings

that there may be claims. The Probate Court cannot provide the Estate any relief to

which it has not requested in writing. !d. at 813 ("a party may not be granted relief

in the absence of pleadings to support that relief').

         This is because an independent administration is managed at the direction of

the personal representative, not by the probate court. The Texas Supreme Court

has explained that a probate court cannot take on duties of the independent

executor. In State v. Traylor, the independent executors asked the probate court to

order a partition and distribution, giving the decedent's widow a compromised

community property distribution, which they had chosen not to trace for economic

reasons, and which was opposed by the other beneficiary. 374 S.W.2d 203 (Tex.

1963).     While a probate court has statutory authority to order a partition and

distribution, the executors were essentially asking for the court's stamp of approval

on their decision to not trace the community property interest, instead of just

approving the widow's claim (and facing suit) or having the widow's claim

established by judgment. !d. The Supreme Court said this was not something the

Court could do, even at an executor's request, and the executors must act on the

claim before coming to the Court for a partition and distribution.

                                        PAGE 19
         In the present case, the independent administrator must first act on its

alleged claim by filing a pleading seeking relief. The Probate Court has no power

to seize or continue an injunction over K. McAfee's assets until after the Estate has

acted.

         The fact that the Estate has no pleadings on file was argued by Storer

multiple times:

   1.       January 8, 2015 hearing:" ... there's nothing to intervene in, because there

            is no pending action." Tab 7, at p. 10, Ins. 7-12.

   2.       January 22, 2015 hearing: " ... I can't even learn what the base lawsuit is

            that the Temporary Injunction was filed for." Tab 8, at p. 7, Ins. 1-5.

   3.       May 14, 2015 hearing: "this Temporary Injunction that everyone            IS


            talking about and relying on, you know has been going on for a very long

            time without a cause of action, without a trial date. It's basically an

            agreement for everyone to have a standstill. And that's fine. We intend

            to honor it. But it's time to separate these parties." Tab 15, at p. 7, Ins.

            3-5.

         With no pleadings on file, the injunction should be dissolved entirely. It is

however, even more serious that a portion ofK. McAfee's social security benefits

were ordered to be turned over to the Clerk for the use and benefit of the Estate of

Janet Foltyn McAfee.        The Probate Court's taking of the $34,898.58 from K.

                                          PAGE 20
McAfee's social security account         IS   essentially a further injunction with no

pleadings on file and no jurisdiction.

       Therefore, the temporary injunction should be dissolved and the May 18,

2015 Order should be set aside for lack of jurisdiction.

III.   Without a pending cause of action, the June 8, 2011 temporary
       injunction and the May 18, 2015 Order are void.

       The lack of pleadings makes the temporary injunction void in its entirety, as

well as the May 18, 2015 Order that directs Woodforest to turn over $34,898.58 to

the registry of the court. The parties can enter an agreement outside of Court to

freeze the remaining assets, but the temporary injunction, especially in this new

form, has been taken too far.

       "A temporary injunction's purpose is to preserve the status quo of the

litigation's subject matter pending a trial on the merits." Butnaru v. Ford Motor

Company, 84 S.W.3d 198, 204 (Tex. 2002). "To obtain a temporary injunction,

the applicant must plead and prove three specific elements: (1) a cause of action

against the defendant; (2) a probable right to the relief sought; and (3) a probable,

imminent, and irreparable injury in the interim. Id. The Estate has no cause of

action on file against K. McAfee, and, even if it did, there is no probable right to

the relief sought because the facts are what they are. The evidence that has already

been considered will always yield the same result-that all of the money in the

Woodforest account is federally protected social security proceeds.
                                          PAGE 21
          Texas Rule of Civil Procedure 683 further states that "every order granting a

temporary injunction shall include an order setting the cause for trial on the merits

with respect to the ultimate relief sought." This requirement is mandatory and

must be strictly followed, or else the order is subject to being declared void and

dissolved. Qwest Commc 'ns Corp., 24 S.W.3d at 337 (Tex. 2000); InterFirst Bank

San Felipe, 715 S.W.2d at 641 (Tex. 1986). An error of such kind is so critical

that it has been held by many Texas appellate courts as "fatally defective and void,

whether specifically raised by point of error or not." 7

          The Estate sought a temporary restraining order in the estate administration

cause (396,935) to preserve its community property interests and anticipated

recovery from the wrongful death proceedings pending against K. McAfee in the

ancillary cause (396,935-401).       Tab 18.       The Estate's Application states, "the

nature of the lawsuit is Probate, with an additional wrongful death suit pending."

Tab 18, at p. 2,   ~5.   The June 8, 2011 Agreed Order for Temporary Injunction also

states:




7
 EOG Res., Inc. v. Gutierrez, 75 S.W.3d 50, 52-53 (Tex. App.-San Antonio 2002); Evans v. C.
Woods, Inc., 34 S.W.3d 581, 582-83 (Tex. App.-Tyler 1999, no pet.); Big D Props., Inc. v.
Foster, 2 S.W.3d 21, 23 (Tex. App.-Fort Worth 1999, no pet.); 360 Degree Commc'ns Co. v.
Grundman, 937 S.W.2d 574, 575 (Tex. App.-Texarkana 1996, no writ).
                                          PAGE22
             "this Temporary Injunction Order ... shall continue in
             force and effect until the Court makes a determination
             of what property belongs to the Estate or the Court
             renders a full and final judgment is in the pending
             wrongful death suit associated with this matter,
             whichever is later, or by further order of this Court."

Tab 1, at p. 9 of 10.

      A full and final judgment was entered in the wrongful death suit on March

21, 2014. Tab 2. The Court, however, has made clear that the injunction remains

in effect in the estate administration until a determination of what property belongs

to the Estate has occurred. Tab 17, last paragraph.

      Whether the temporary injunction has ever been effective in the past may be

a moot issue. The temporary injunction was filed only in the estate administration,

where no pleadings were ever filed. On January 22, 2015, the parties argued over

whether the order on the garnishment proceeding (395,835-401) should require a

release of the temporary injunction in the estate administration. Tab 8, at p. 3, Ins.

20-25; at p. 4, Ins. 1-7; at p. 8, Ins. 2-4; at p. 9, Ins. 14-17; at p. 11, Ins. 4-16.

Storer argued to release the temporary injunction:

             "The other thing, Judge, is I don't even think there is a
             Temporary Injunction in place. I think everyone has
             honored it because everyone understood what the intent
             was of the parties and the intent of the Court but I can't
             even learn what the base lawsuit is that the Temporary
             Injunction was filed for. It's my understanding also that
             there is no ending to the Temporary Injunction and the
             only way one can be valid is if there is a final trial date
             that says on this date this Temporary Injunction ends and
                                        PAGE 23
             will either go away or tum into a Permanent Injunction.
             So I believe there is not even a Temporary Injunction in
             place. I will go along with what's been going on but we
             were here two weeks ago and the issue garnishment was
             decided. That's over. The only thing that needed to be
             added was to make the payment to Mr. Blumrosen and/or
             his client. That's been done. And so this is the Proposed
             Order that covers both parties and both banks in the
             garnishment proceeding."

Tab. 8, at p. 6, ln. 25; at p. 7, Ins. 1-16; at p. 14, Ins. 15-19. Regardless of how the

estate administration and wrongful death proceedings were intertwined, today there

are clearly no actions being pursued in any cause against K. McAfee. This makes

the temporary injunction fatally void and it should be dissolved. TEX. R. CIV. P.

683.

       Additionally, "Probate" is not a cause of action.         Probate is a general

description for all matters or proceedings that relate to a decedent's estate. TEX.

ESTATES CODE§ 22.029.

       The Texas Supreme Court has clarified, "the issue in determining whether

an applicant has met the first qualification for a temporary writ of injunction is not

whether the prayer seeking the writ and the ultimate cause of action is 'related,' but

whether the applicant has a cause of action at all."        Walling v. Metcalfe, 863

S.W.2d 56, 58 (Tex. 1993) (per curiam) (considering whether applicant's live

pleadings supported the temporary injunction). With no cause of action at all on



                                        PAGE 24
file, there is no matter to set for trial and the injunction in whatever form it has

now taken, must be dissolved.

      And if there were a cause of action on file, the reason for strict compliance

m setting a trial date "is to prevent the temporary injunction from becoming

effectively permanent, without a trial having occurred." Eastern Energy, Inc. v.

SBY P'ship, 750 S.W.2d 5, 6 (Tex. App.-Houston [1st Dist.] 1988). Such would

be contrary to the purpose and procedure of obtaining a temporary injunction, yet

this is exactly what has happened in this case, because a determination of all Estate

property may never occur.

      Therefore, the temporary injunction should be dissolved and the May 18,

2015 Order should be set aside for being void.

IV.   Collateral Estoppel and Res Judicata bar re-tracing of the Woodforest
      account.

      Even if the Probate Court were to obtain jurisdiction to enjoin or take control

over K. McAfee's assets, the Woodforest account cannot be subject to any further

authority of the Probate Court because the funds have already been traced and

found to be solely K. McAfee's social security benefits. Tab 9; Tab 14, at p. 6-8.

Since the Estate can have no claim against K. McAfee's social security benefits, all

of such assets must be released to K. McAfee.

      The well-known case of Barr v. Resolution Trust Corp. describes "res

judicata" as a generic term for two types of conclusive effects given to final
                                       PAGE 25
judgments: res judicata precludes relitigation of claims, and collateral estoppel

prevents relitigation of particular issues. 837 S.W.2d 627, 628 (Tex. 1992). This

mandamus involves both.

        The Estate would like the Court to believe that the garnishment proceedings

were completely separate from the Estate's purported community property claims

in the estate administration. Tab 12, at p. 8, Ins. 16-25; Tab15, at p. 11, Ins. 22-25;

at p. 12, Ins. 1-3. This, however, is not accurate. First, the issue of tracing the

Woodforest account was actually litigated in the garnishment proceeding

(collateral estoppel). Second, the Estate should have brought its claims against

Kenneth McAfee for the funds in the Woodforest account during the garnishment

proceedings (res judicata).

1. Collateral Estoppel

        The doctrine of collateral estoppel or issue preclusion is designed to promote

judicial efficiency, protect parties from multiple lawsuits, and prevent inconsistent

judgments by precluding the relitigation of issues a party previously litigated and

lost.   Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994);

Quinney Elec., Inc. v. Kondas Entm 't, Inc., 988 S.W.2d 212, 213 (Tex. 1999) (per

curiam). "A party seeking to assert the bar of collateral estoppel must establish

that ( 1) the facts sought to be litigated in the second action were fully and fairly

litigated in the first action; (2) those facts were essential to the judgment in the first

                                         PAGE 26
action; and (3) the parties were cast as adversaries in the first action." Sysco Food

Servs., Inc., 890 S.W.2d at 801. "Fairness" may also be considered, but it is

narrowly applied in only the most unique circumstances. !d. at 805.

      Collateral estoppel can apply even if the causes of action are different in the

first and second proceedings. Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575,

577 (Tex. 2001) (criminal defendant was convicted of fleeing and attempting to

elude a police officer; because the issue of whether she faced imminent harm was a

fact that was litigated in her criminal trial, she was barred from bringing a civil

action for assault against the officer who tried to stop her). "If a cause of action in

the second lawsuit involves an element already decided in the first lawsuit, that

cause of action is barred" if the issue decided in the first action was actually

litigated, essential to that lawsuit's judgment, and is identical to the issue in the

pending action. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962

S.W.2d 507, 521 (Tex. 1998).

      Element 1: the facts sought to be litigated in the second action are
      identical to the facts litigated in the first action

      "Collateral estoppel applies when an issue decided in the first action is

actually litigated."   Tex. Dep't of Pub. Safety, 44 S.W.3d at 579.         "Actually

litigated" means the issue was properly raised (by pleadings), submitted for

determination, and determined. Johnson & Higgins of Tex., Inc., 962 S.W.2d at

521. The issues must be identical and must have been fully and fairly litigated.
                                        PAGE 27
State & Cty. Mut. Fire Ins. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001); Tex. Dep't

ofPub. Safety, 44 S.W.3d at 579.

        What the Estate is seeking now is identical to what was before the Court in

the garnishment proceedings, a tracing of the Woodforest account.                     The tracing

that was necessary to establish protection in the garnishment proceedings is the

very same tracing that would be necessary to prove the Woodforest account is

solely K. McAfee's social security benefits. Tex. Dep 't of Pub. Safety, 44 S.W.3d

at 577 (collateral estoppel applied because same facts were necessary to prove first

and second claims).

       In the garnishment proceedings, Storer sought to quash two writs the Foltyns

had obtained, one against a 401(k) Savings Plan and one against a social security

account. Tab 4. Both accounts needed to be established as exempt accounts in

order to quash the writs. While the funds in the 401(k) were protected merely by

being in a tax-deferred retirement account, 8 the social security funds were held in

an ordinary checking account and Storer had to show that every penny in the

Woodforest account was attributed to his social security benefits. Tab 4, at rs 22-

25 (regarding need to trace comingling of social security benefits). Had there been




8
 TEX. PROP. CODE§ 42.0021(a); see also Tab 4, at p. 13, footnote 12: Unlike with social security
benefits, it is the account that is exempt; the source of the funds is irrelevant. Lozano v. Lozano,
975 S.W.2d 63, 68 (Tex. App.-Houston [14th Dist.] 1998, pet. denied).
                                              PAGE 28
any funds that were not social security benefits, those funds would have been

subject to garnishment. Tab 4, at 'if 23.

       The nature of the Woodforest funds was plead in Storer's Motion to Quash,

which also provided copies of the bank statements, and an account detail sheet

showing the source of all deposits and withdrawals.         Tab 4, at Exhibits A, B.

Storer agreed the tracing rules in his Motion, and identified the funds all as coming

exclusively from the Social Security Administration. Tab 4, at 'if 25.

       At the first hearing on January 8, 2015, the Foltyns did not challenge the

protected status of a person's 401(k) or social security benefits, but argued that

they did not have sufficient information to determine the character of the funds at

issue due to outstanding discovery requests. Tab 7, at p. 4, lns. 1-9; at p. 5, lns. 2-

17; at p. 6, Ins. 9-20; at p. 8, Ins. 12-25; at p. 9, Ins. 1-24. The Probate Court reset

the matter for two weeks to specifically allow time for exchanging information.

Tab 7, at p. 27, Ins. 5-6.

       On January 22, 2015, the parties and the Estate returned. Tab 8. Again,

quashing the writs on the two accounts was never challenged. Tab 8; at p. 3, Ins.

5-7. However, because Storer sought to include language in the proposed order to

also release the temporary injunction as to the two accounts, the Foltyns and the

Estate resisted, in order to preserve the Estate's potential community property

claims against the 401(k). Tab 8, at p. 3, Ins. 20-25 through at p. 4, Ins. 1-7; at p.

                                        PAGE29
5, Ins. 5-10; at p. 5, Ins. 14-19; at p. 8, Ins. 2-4; at p. 9, Ins. 14-15; at p. 11, Ins. 4-

16; at p. 14, Ins. 15-19; at p. 17, Ins. 18-25, at p. 18, Ins. 1-24.

       At both hearings, no one challenged the character of the funds that made up

the Woodforest social security account (see Tab 7 and Tab 8); this was not done

until months after the Court signed the January 27, 2015 Order. See Tab 12 and

Tab 15. Had any contrary evidence been offered, Storer could have orally argued

his tracing evidence that was filed in his Motion to Quash Writs of Garnishment

because that was the very subject matter of that hearing, to prove that all funds in

the Woodforest account were social security benefits. Tab 7, at p. 5, Ins. 12-15.

But the Foltyns specifically said that was not necessary (Tab 7, at p. 5, Ins. 16-17)

and the Estate raised no issues as to Storer's accounting (Tab 8, at p. 18, Ins. 13-

23).

       Based upon the patties' pleadings and arguments, the Probate Court

detetmined that the Woodforest account contained only K. McAfee's social

security benefits and signed the January 27, 2015 Order:

             "On this day came to be considered the Motion to Quash
             Writs of Garnishment filed by Charles Storer, Power of
             Attorney for Kenneth Cooper McAfee. After review and
             consideration of said Motion, the evidence, the responses,
             and the arguments of counsel, the Court finds the
             following:




                                          PAGE 30
              5.     The Woodforest account ending in 404 holds,
                     exclusively, social security benefit proceeds of
                     Kenneth C. McAfee which benefits are exempt
                     from garnishment under 42 U.S.C. 407. 42 U.S.C.
                     407 provides an absolute exemption and there are
                     no statutory exceptions to same. Because the
                     Woodforest account ending in 404 contains only
                     funds exempted from garnishment, the writ
                     directed at Woodforest as to Kenneth McAfee's
                     account ending in 404 should be quashed."
Tab9.

        The Estate now questions the characterization of two deposits that were

made into the Woodforest social security account and that were identically

withdrawn from the account days later, arguing these might be deposits of

community property and withdrawals of social security funds that would give the

Estate a one-half interest in the deposits of community property depending on what

method of tracing is used (first in/first out, or last in/first out). Tab 12, at p. 3, Ins.

13-22; at p. 6, Ins. 14-21; at p. 7, Ins. 1-6; at p. 7, Ins 14-21; at p. 8, Ins. 19-25; at p.

9, Ins. 7-9; at p. 9, Ins. 21-25; at p. 10, Ins. 1-21; at p. 12, Ins. 1-25; at p. 13, Ins. 1-

6; at p. 15, Ins. 4-25; at p. 16, ln.1; Tab 15, at p. 10, Ins. 6-24; at p. 11, Ins. 1-16; at

p. 14, Ins. 18-25.     This is a tracing issue that has already been litigated and

determined by the Court. Tab 9 and Tab 12 at p. 7, Ins. 14-22; at p. 11, Ins. 21-25;

Tab 15, at p. 4, Ins. 2-19; at p. 5, Ins. 1-9; at p. 5, Ins. 17-19; at p. 6, Ins. 4-10; at p.

7, Ins. 17-25; at p. 7, Ins. 17-25; at p. 8, Ins. 1-25; at p. 9, Ins. 1-17; at p. 13, lns.

13-17; at p. 15, Ins. 1-9; at p. 16, Ins. 3-25; at p. 17, lns. 1-14.

                                           PAGE 31
      Storer does not dispute the 401(k) is funded with some community property.

But the social security benefits are federally protected separate property, so there is

nothing left to fight over. 42 U.S.C. 407; Tab 15, at p. 15, Ins. 10-14; at p. 15, Ins.

22-25; at p. 16, Ins. 1-25; at p. 17, Ins. 1-17. To have this fight again (to trace the

Woodforest social security account) would require an identical trial to the one

already had, with the exact same tracing evidence and burden of proof (Sysco Food

Servs., Inc., 890 S.W.2d at 802 (in considering collateral estoppel, similarity of

each action's burden of proof was a factor));it would just be for a different

purpose, but with the same result as to the Woodforest assets.

      Although Storer's tracing evidence was not challenged in the garnishment

proceeding, that does not mean the issue was not actually litigated. "Actually

litigated" does not require a contested proceeding, but merely that the issue was

pled, considered and decided. Johnson & Higgins ofTex., Inc., 962 S.W.2d at 521.

These criteria have all been met. The transcripts show that it was put before the

Court by all counsel, repeatedly, and that there was no issue that the Woodforest

account contained anything other thanK. McAfee's social security benefits. The

Estate specifically said, "the two issues, which one we could see, the Woodforest,

is that's all SSI money. My client has no claim to that. We can see that. As long

as that's an accurate statement, it's all SSI." Tab 8, at p. 18, Ins. 13-25, at p. 19,

line 1; Tab 4, Exhibit A & B.

                                        PAGE 32
      In Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., the Supreme

Court considered "fully and fairly litigated" and rejected a party's argument that

they had no real incentive in the first action to develop their claims in the second

action. 962 S.W.2d 507, 525 (Tex. 1998). When the plaintiff lost a significant

portion of his profits in oil he was transporting across the Atlantic, he used his

insurance agent as a witness to recover from another insurance company based on

agreements that had been discussed between multiple insurance companies to

insure the cargo. Id. at 511-513. As to at least one claim, the Supreme Court

found that the testimony of the plaintiffs insurance agent supported the court's

detennination that there were no insurance agreements for the extra loss coverage

the plaintiff was seeking. I d. at 524. The plaintiff was later barred from suing his

own insurance company because the issue had already been decided that there

were no valid insurance agreements for the extra loss coverage. Id. The plaintiff

argued that had he known he would be precluded from suing his own insurance

company, he would have further developed the testimony to prove his insurance

agent represented to him that he was covered. Id. at 525. The Supreme Court said

he had missed his chance because he had every incentive in the first suit to

establish an agreement since his claims in the first suit depended on that

agreement. Id. Likewise, the Estate's purported community property claims to the

Woodforest account depend 100% on what type funds are in the account. The

                                       PAGE 33
tracing was just as essential to the garnishment proceeding as it is to the Estate's

purported community property claims. The Estate's agreement and/or inaction

when the issue of tracing was before the Court precludes the Estate's later

developed arguments.

      Additionally, in Rexrode v. Bazar, collateral estoppel was applied even in a

situation where no evidence was ever admitted. 937 S.W.2d 614 (Tex. App.-

Amarillo 1997, no writ). A plaintiff sued a defendant for negligence and also sued

his own insurance company under the uninsured/underinsured motorist provision

of his auto insurance policy. Id. at 615-16. When the insurance company failed to

answer requests for admissions, the plaintiff nonsuited his case against the

defendant and went to trial against the insurance company. ld. at 616. At trial, the

plaintiff offered only the deemed admissions.      ld. at 617-18.    The insurance

company was granted leave to prepare responses to the requests for admissions.

ld. at 618. The plaintiff rested. ld. The insurance company prepared responses,

and the Court withdrew the deemed admissions. Jd.         The Court then issued a

directed verdict against the plaintiff, having rested with no evidence. Jd.     The

plaintiff was later bmred from bringing suit against the original defendant because

he had "failed to prevent the issue ... from being submitted for determination and

determined adversely to him. That being so, the issue was "actually litigated" in

the first suit." ld. at 620. That is exactly what has happened in this case-the

                                       PAGE 34
Estate's agreement and/or inaction failed to prevent the tracing issue from being

submitted for determination and determined adversely to their current purported

claims, if any. The opportunity to fully and fairly litigate the issue of tracing

existed, but the Estate chose not to act. This opportunity is all that is required. See

Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex. 1990) (collateral

estoppel applies when the party against whom it is asserted had a full and fair

opportunity to litigate the issue in the prior suit).

       Because the issue of tracing the Woodforest social security account was

actually litigated, fully and fairly, and is identical to the claims the Estate makes

now, the first element of collateral estoppel has been met.

       Element 2: those facts were essential to the judgment in the first action

       When the Probate Court examined whether or not the Woodforest social

security account should be exempt from garnishment, the sole issue was the nature

of the funds in the account. It may be redundant to keep saying that it was already

established and unopposed that the funds were 100% K. McAfee's social security

benefits. Tab 9 and Tab 12 at p. 7, Ins. 14-22; at p. 11, Ins. 21-25; Tab 15, at p. 4,

Ins. 2-19; at p. 5, Ins. 1-9; at p. 5, Ins. 17-19; at p. 6, Ins. 4-10; at p. 7, Ins. 17-25; at

p. 7, Ins. 17-25; atp. 8, Ins. 1-25; atp. 9, Ins. 1-17; atp. 13, Ins. 13-17; atp. 15, Ins.

1-9; at p. 16, Ins. 3-25; at p. 17, Ins. 1-14. But there was simply no other purpose

to the garnishment proceeding in regards to the Woodforest account other than to

                                           PAGE 35
trace the funds, which is exactly what the Estate seeks to do again. See above,

Johnson & Higgins of Tex., Inc., 962 S.W.2d at 525 (establishment of insurance

agreement was essential to first claim against 3rd party insurance company;

plaintiff could not bring action against his own insurance company because court

already found there was no insurance agreement).

      Because the issue of tracing was essential to the Probate Court's January 27,

2015 Order, the second element of collateral estoppel has been met.

      Element 3: the parties were cast as adversaries in the first action

      All parties involved today also participated in the garnishment proceeding

that resulted in the January 27, 2015 Order.

      The parties in the estate administration proceedings are K. McAfee, the

Estate, and the Foltyns, individually, who are participating herein as interested

parties. Tab 18.

      The garnishment proceeding did not originally involve the Estate; it

involved only K. McAfee and the Foltyns, individually, who sought to recover on

their wrongful death judgment. Tab 3. However, the Estate made a voluntary

appearance in the garnishment proceeding by filing a Notice to Court in which the

Estate objected to Storer's Motion to Quash and claimed an interest in the two

accounts Storer sought to protect from garnishment. Tab 5; Tab 7, at p. 9, Ins. 1-8.

The Estate further participated in the garnishment hearings, not challenging the

                                       PAGE 36
quashing of the writs, but alluding to their community property claims that might

exist post-garnishment. Tab 7, at p. 8, Ins. 15-25; at p. 9, Ins. 1-2; Tab 8, at p. 2; at

p. 5, Ins. 5-10, Ins. 16-18; at p. 12, Ins. 10-17; at p. 17, Ins. 21-24; at p. 18, Ins. 18-

23.

       Regardless of what happened thereafter, it cannot be disputed that all parties

involved today actually participated in the garnishment proceedings that (1)

considered the tracing of the Woodforest social security account and (2) resulted in

the January 27, 2015 Order. 9

       Because the same parties were cast as adversaries in the garnishment

proceeding, the third element of collateral estoppel has been met.

       Consideration of Fairness

       The nature of the wrongful death proceeding is not a factor the court can

consider in deciding whether to apply collateral estoppel. Fairness factors involve

unique procedural and evidentiary burdens that defeat the design of collateral

estoppel, and that are not caused by the party seeking to avoid the preclusive effect


9
  Nevertheless, collateral estoppel does not even require direct participation by the Estate, only
that the Estate be in privity with the Foltyns. Tex. Dep 't of Pub. Safety, 44 S.W.3d at 577; Sysco
Food Servs., Inc., 890 S.W.2d at 801; Eagle Props., Ltd., 807 S.W.2d at 721. Privity cannot be
disputed because the Estate and the Foltyns both share interests in the Woodforest account that
are directly affected by its tracing. See Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363
(Tex. 1971). They are merely acting in two different capacities, individually and as beneficiaries
of the Estate, to recover the same interests under different theories of recovery. See Robbins v.
HNG Oil Co., 878 S.W.2d 351, 357-58 (Tex. App -Beaumont 1994, writ dism'd w.o.j.)
(Robbins as attorney-in-fact in second suit was certainly in privity with Robbins, individually, in
first suit).
                                              PAGE 37
of a prior judgment. See Sysco Food Servs., Inc., 890 S.W.2d at 804-05 (party was

prevented from filing all of their claims in one suit by case law that has

subsequently been overruled by statute; procedural predicament is not of their own

making; then holding is narrow, given the unusual procedural posture of the case);

Phillips v. Allums, 882 S.W.2d 71, 75 (Tex. App.-Houston [14th Dist.] 1994, writ

denied) (because party was nonsuited, party was deprived of the opportunity to

litigate; "Mary Carter" agreements violate public policy).             None of these type

.c:
1actors             •
        are present m th"IS case. 10

2. Res Judicata

       Res judicata precludes relitigation of claims that have been finally

adjudicated, and claims that arise out of the same subject matter that could have

been litigated in the prior suit. Barr v. Resolution Trust Corp., 837 S.W.2d 627,

628, 631 (Tex. 1992). The elements of res judicata are: (1) a prior final judgment

on the merits by a court of competent jurisdiction; (2) identity of parties or those in

privity with them; and (3) a second action based on the same claims as were raised

or could have been raised in the first action." Amstadt v. US. Brass Corp., 919

S.W.2d 644, 652 (Tex. 1996); see also Houtex Ready Mix Concrete & Materials v.


10
   See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 330-31 (1979) (noting when offensive
collateral estoppel may be unfair); Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 7 (Tex. 1986)
(holding when fairness factors are applicable); Goldstein v. Comm 'nfor Lawyer Discipline, 109
S.W.3d 810, 813 (Tex. App.-Dallas 2003, pet. denied) (observing the factors when offensive
collateral estoppel may be applied); Tankersley v. Durish, 855 S.W.2d 241, 245-46 (Tex. App.-
Austin 1993, writ denied) (noting applicable fairness factors).
                                           PAGE 38
Eagle Canst. & Envtl. Servs., L.P., 226 S.W.3d 514, 519 (Tex. App.-Houston [1st

Dist.] 2006, no pet.).

      Element 1: there is a final judgment on the merits

      The January 27, 2015 Order is a final judgment on the merits of tracing the

Woodforest social security account. Tab 15, at p. 6, Ins. 4-10. It specifically and

correctly states, "the Woodforest account ending in 404 holds, exclusively, social

security benefit proceeds of Kenneth C. McAfee." Tab 9.

      The wrongful death and estate administration claims, if any, are and/or will

be separate actions. In the wrongful death action, a final judgment was entered

against K. McAfee on March 21, 2014, that disposed of all parties and was

appealable. Tab 2. The Foltyns' Application for Writ of Garnishment was initiated

in the wrongful death proceeding on October 9, 2014 to collect on the judgment.

Tab 3.   The Probate Court had jurisdiction over the garnishment proceedings

because there were garnishment pleadings and notices (Tab 3), not because the

wrongful death action was on-going. Thereafter, Storer's Motion to Quash Writs

of Garnishment was filed in the garnishment proceeding and the Probate Court

properly acted on those pleadings after two hearings on the merits. Tab 9.

      When the Probate Court signed the January 27, 2015 Order Partially

Granting Motion to Quash Writs of Garnishment, there were no more issues

pending in the garnishment proceeding, however the Court did direct the

                                      PAGE 39
temporary injunction to be lifted as to the GMS accounts in favor of the Foltyns,

even though the temporary injunction was in a separate proceeding. Tab 9, at p. 3.

(The remaining accounts were still subject to the temporary injunction in the

separate estate administration cause, just as they were before the Foltyns'

Application for Writ of Garnishment was filed.) On March 16, 2015, the Probate

Court signed its Order Partially Releasing Temporary Injunction in regards to the

GMS accounts in favor of the Foltyns, (Tab 9), and the January 27, 2015 became

final as it disposed of all issues and parties in the garnishment proceeding.

      This January 27, 2015 judgment was never appealed, and cannot be appealed

now. The judgment is also not interlocutory because "a probate order is final if it

adjudicates a substantial right and disposes of all issues in the phase of the

proceeding for which is was brought, even though multiple judgments final for

purposes of appeal can be rendered on certain discrete issues."           Crowson v.

Wakeham, 897 S.W.2d 779, 781-82 (Tex. 1995); Lehmann v. Har-Con Corp., 39

S.W.3d 191, 192-93 (Tex. 2001); Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex.

App.-Austin 2000, pet. denied) ("An order rendered in a probate proceeding need

not finally dispose of the entire proceeding ... A probate proceeding consists of a

continuing series of events, in which the probate court may make decisions at

various points in the administration of the estate on which later decisions will be

based."). Although the Estate Independent Administration is still open (without

                                        PAGE40
Court supervision), the January 27, 2015 Order resolved all issues and pleadings in

the garnishment proceeding, in which it participated.        Therefore, even if the

garnishment proceeding had been tied to the Estate administration, which it was

not, this phase of the garnishment proceeding has been disposed of and is final,

even though the Estate independent administration may continue.

      Because there is a final judgment on the merits of tracing the Woodforest

account, the first element of res judicata has been met.

      Element 2: same parties

      As discussed above, the same parties involved today actually participated in

the garnishment proceedings that resulted in the January 27, 2015 Order, and the

Estate is "in privity" with the Foltyns. See collateral estoppel, element 3 above.

      Because the same parties are involved in both proceedings, the second

element of re judicata has been met.

      Element 3: same claims

      Res judicata provides broader relief than collateral estoppel since it allows

preclusion of claims that not only were adjudicated, but claims that could have

been litigated in the prior suit. Rexrode, 937 S.W.2d at 616 ("unlike the broader

res judicata doctrine, collateral estoppel analysis does not focus on what could

have been litigated, but what was actually litigated").



                                        PAGE 41
        "A subsequent suit will be barred if it arises out of the same subject matter

of a previous suit and which through the exercise of diligence, could have been

litigated in a prior suit." Barr, 837 S.W.2d at 631. "A determination of what

constitutes the subject matter of a suit necessarily requires an examination of the

factual basis of the claim or claims in the prior litigation. It requires an analysis of

the factual matters that make up the gist of the complaint, without regard to the

form of action. Any cause of action which arises out of those same facts should, if

practicable, be litigated in the same lawsuit." !d. at 630.

        The Barr standard "is substantially similar to the rule of compulsory

counterclaims embodied in the rules of civil procedure. A party defending a claim

must bring as a counterclaim any claim that "arises out of the transaction or

occurrence that is the subject matter of the opposing party's claim." !d.; TEX. R.

CIV.   P. 97.

        While the issue of tracing was actually litigated on more than one occasion,

the Estate still has never filed its community property claims. The garnishment

proceeding was the proper time to have brought such claims. As discussed above,

the issue in the garnishment proceeding was to trace the funds in the Woodforest

account as solely K. McAfee's social security benefits in order to protect the entire

account from garnishment.      The Estate's purported claim seeks to re-trace the

funds in the Woodforest account to see if the funds are all K. McAfee's social

                                        PAGE42
security benefits, or if the funds have been comingled with community property.

While the purpose for tracing may be different, the issues, facts and evidence that

make up both claims are identical-what is the character of the funds in the

Woodforest account?

       The issue of the Estate's potential community property claims was known

and discussed in the garnishment proceedings. Tab 7, at p. 8, lns. 15-25; Tab 8, at

p. 4, lns. 1-7; at p. 5, lns. 5-19; at p. 8, lns. 2-4; at p. 9, lns. 14-19; at p. 11, Ins. 4-

16; at p. 12, lns. 10-25; at p. 13, lns. 1-11; at p. 14, lns. 15-19; at p. 17, Ins. 18-25;

at p. 18, Ins. 1-24. The Estate argued for the protection of its community property

claims against the 401(k) account, yet made no mention of potential claims to the

social security account.       Tab 8.      Knowing that tracing in the garnishment

proceeding directly affected the Estate's community property interests, the Estate

had the burden to bring its claim at the time the issue of tracing was first before the

Court. It is not enough to merely say they want to litigate the claims in the future.

       Because the same claims that the Estate alleges now could have been

litigated in the prior suit, the third element of res judicata has been met.

V.     The Estate's claims cannot be satisfied from the Woodforest social
       security account and continued obstruction of these funds violates due
       process and constitutes an abuse of discretion.

       K. McAfee's social security benefits are his separate, federally protected

property that cannot be used to satisfy the Estate's alleged community property

                                           PAGE43
claims. 42 U.S.C. 407 ("none of the moneys paid or payable ... shall be subject to

execution, levy, attachment, garnishment, or other legal process .... "). Storer has

explained this protection provided by the Social Security Act, and its lack of

exceptions, in great detail. 11

        The F oltyns and the Estate do not disagree that any funds that are social

security benefits are protected. See Tab 7, at p. 4, Ins. 1-6; Tab 8, at p. 18, Ins. 13-

18;seeTab 12,atp.3,Ins.15-17;atp.9,lns.1-7;atp.15,lns.ll-13;atp.17,Ins.

6-10; see Tab 15, at p. 14, Ins. 17-19; at p. 24, Ins. 16-18. Since the nature ofthe

funds in the Woodforest account have already been traced, and found to be social

security benefits, there is nothing left to fight over. If the Estate has claims, they

can only be satisfied from other accounts made up of community property assets of

Janet and K. McAfee, not from the Woodforest account that holds only K.

McAfee's social security benefits. Tab 15, at p. 9, Ins. 18-22; at p. 13, Ins. 1-17; at

p. 13, Ins. 2-25; at p. 14, lns.1-15; at p. 17, Ins. 8-11.

        The Court's continued obstruction of these funds violates due process rights

and the supremacy clause. Dionne v. Bouley, 757 F.2d 1344, 1354 (1st Cir. 1985)

(social security account was exempt from attachment, procedural issues that

prevented access to the account violated due process right and perhaps even the


11
  See Storer's Motion to Quash Writs of Garnishment, Tab 4, ~'s 11-29; Tab 7, at p. 5, Ins. 2-17;
at p. 11, Ins. 2-4; at p. 18, Ins. 9-23; Tab 8, at p. 5, Ins. 20-25; at p. 6, Ins. 1-24; Tab 14, at p. 9;
Tab 12 and Tab 15.
                                                PAGE44
supremacy clause.) These violations are further reason why the May 18, 2015

Order should be set aside and the temporary injunction dissolved.

       Last, the Probate Court has abused its discretion by failing to correctly

analyze and apply the law in regards to Storer's arguments of lack of jurisdiction,

no pleadings being on file, and no cause being set for trial. See In re Pierce, No.

13-12-00125-CV, 2012 WL 3525638, at *2 (Tex. App.-Corpus Christi Aug. 10,

2012, orig. proceeding) (mem. op.) (citing In re Cerberus Capital Mgmt., L.P., 164

S.W.3d 379, 382 (Tex. 2005) (orig. proceeding)) (court abuses its discretion "if it

reaches a decision so arbitrary and unreasonable as to amount to a clear and

prejudicial error of law or if it clearly fails to correctly analyze or apply the law.").

                                       PRAYER

      For the reasons stated above, Relator, respectfully requests that the Court

grant his Petition for Writ of Mandamus; direct the Honorable Loyd Wright to set

aside the May 18, 2015 Order on First Amended Motion for Reconsideration of

March 16, 2015, Order Partially Releasing Temporary Injunction, First Amended

Motion for Entry of Order Releasing Social Security Proceeds from Injunction and

Motion for Sanction; direct the Honorable Loyd Wright to dissolve the June 8,

2011 Agreed Order for Temporary Injunction, and grant Relator such other relief,

at law or in equity, to which Relator may be justly entitled.



                                         PAGE45
Respectfully Submitted,

ANDERSON PFEIFFER, PC


Esther Anderson
SBN: 00792332
Robert Teir (of Counsel)
SBN: 00797940
845 FM 517 West, Suite 200
Dickinson, Texas 77539
Telephone: (281) 488-6535
Facsimile: (281) 488-0625
Email: esther@probateguardianship.com

Attorneys for Relator, Charles Storer,
Power of Attorney for Kenneth Cooper
McAfee




PAGE46
                          CERTIFICATE OF SERVICE


       I hereby certify that a true and correct copy of the forgoing Petition for Writ
of Mandamus was delivered via the electronic service provider and/or certified
mail, return receipt requested on this 1st day of October, 2015, to all parties/and or
counsel of record:


cc:   Honorable Loyd Wright
      Judge, Probate Court No. 1
      Harris County, Texas
      201 Caroline, 6th Floor
      Houston, Texas 77002

      Dean M. Blumrosen, Esq.
      4615 Southwest Freeway, Suite 850
      Houston Texas 77027
      Counsel for Rosemary Foltyn and Jake Foltyn

      Mary Elizabeth Duff
      21 0 Main Street
      ~chmond, Texas77469
      Counsel for Rosemary Foltyn,
      Administratrix of the Estate of Janet Foltyn McAfee, Deceased




                                       Esther Anderson




                                       PAGE47
           CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)


      This brief complies with the word limitation of Tex. R. App. P. 9.4 (i)
because the brief contains 10,912 words, excluding the parts of the brief exempted
by Tex. R. App. P. 9.4(i)(1).

      This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e)
because it has been prepared in a proportionally spaced typeface using Microsoft
Word 2007 in 14 point Times New Roman font.

      Dated: October 1, 20 15.




                                     Esther Anderson




                                      PAGE48
                        RULE 52.3(j) CERTIFICATION

      I have reviewed the petition and concluded that every factual statement in
the petition is supported by competent evidence included in the appendix or record.




                                      Esther Anderson




                                      PAGE49
         APPENDIX TO PETITION FOR WRIT OF MANDAMUS



1.    Agreed Order for Temporary Injunction
2.    Order
3.    Application for Writ of Garnishment
4.    Motion to Quash Writs of Gmnishment
5.    Notice to Court
6.    Response to Charles Storer's Motion to Quash Writs of Garnishment
7.    January 18,2015 Transcript
8.    January 22, 2015 Transcript
9.    Order Partially Granting Motion to Quash Writs of Garnishment
10.   Motion to Partially Release Temporary Injunction
11.   Motion to Partially Release Temporary Injunction
12.   March 12, 2015 Transcript
13.   Order Partially Releasing Temporary Injunction
14.   First Amended Motion for Reconsideration of March 16, 2015, Order
      Partially Releasing Temporary Injunction, First Amended Motion for Entry
      of Order Releasing Social Security Proceeds from Injunction and Motion for
      Sanctions
15.   May 14,2015 Transcript
16.   Inventory, Appraisement and List of Claims
17.   Order on First Amended Motion for Reconsideration of March 16, 2015
      Order Partially Releasing Temporary Injunction, First Amended Motion for
      Entry of Order Releasing Social Security Proceeds from Injunction and
      Motion for Sanctions
18.   Application for Temporary Restraining Order and Temporary Injunction

                                     PAGE 50
         TABl
Agreed Order for Temporary
        Injunction
~··--""""

          06/08/2011 WBD             9:20      PAX 7132243111 Law Office                                                                  ~002/0~1


              06/07/2011           10:58 Mitchell & Duff Attorneys at Law                                    (FAX)281341S517          P.002/011


                                                                                                                           D~BATE COURT 1

 ·~Jltrli'~Ji;               998~91                                                   No. 396,935

                           IN THE ESTATE OF                                                    §   IN THE PROBATE COURt
                                                                                               §
                           JANET FOLTYN MCAFEE,                                                §   N0.1
                                                                                               §
                           DECEASED                                                            §   HARRIS COUNTY, TEXAS


                                                    AGBEED ORDER FOR TEMPORARY :INJUNCTION

                                    On Maroh 31, 2011 the Application for a Temporary Restraining Ot·der of Rosemary Foltyn,

                         as Administratrix of the Estate of Janet Foltyn McAfee (the ..Estate"), was beard and granted before

                         this Court.

                                    OnApril14 and May 5, 2011 the Courtultimatelyol·dered the Temporary Restraining Ordet•

                         be extended and Temporary Injunction hearlng be rescheduled to June 9, 2011 at 2:00P.M.

                                    On May 18, 2011 the Application for a Supplemental Temporary Restraining Order of

                         Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee, was heard and gtanted

                         before this Court. The Temporary Injunction hearing was scheduled for June 1, 2011 at 12:00 PM.

                                    On June 1, 2011 the Cowt ordered the Supplemental Temporary Restraining Order be

                         extended and Temporary Injunction be extended and Temporary Injunction hearing be rescheduled

                         to June 9, 2011 at 2:00P.M.

                                    On June 7, 2011, tho parties agreed to the entry of a Temporary Injunction, andtopasson the

                         hearing on June 9, 2011. This agreement is evidenced by counsels' signatures below.

                                    The Court finds that all necessnry prerequisites of the law have been legally satisfied and that

                         the Court has jurisdiction in this case and of all the parties. The Court finds that Rosemary Foltyn, as

                         Adnlinistratrix of the Bstate of JBJI.et Foltyn McAfee, is entitled to a Temporary Injunction.



                         Agreed Temporary JbjUDCI1on                                  1 Df10




              Confidential information may have been redacted from the document in compliance with the Public Information Act.


                                                                                                                                           ,,,,,11111111111
      A Certified Copy                                                                                                                 ~''' \ OF /fA,,,/.
      Attest: 9/29/2015                                                                                                              ~"" " ••••••••"'·rr,r~~
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         ·-· ·
r          06/08/2011 WED

             ' 061071201 1
                                   9:20       FAX 7132243111 Law Office

                               1o:sa Mitchell & Duff Attorneys at Law                                   (FAX)281341 5517
                                                                                                                                   ~003/011 .


                                                                                                                                ?.003/011




                                 IT IS THEREFORE ORDERED that Kenneth McAfee and all of his officers, agents,

                      servants, employees, agents, servants, successors, assigns, representatives, and attorneys are ordered

                      to immediately cease and desist from the use and control of the following accounts a:od property:

                                                                      THE GMS GROUP, LLC

                                             1,           Any and all funds in OMS Group, LLC accounts, including but not limited to

                      the following, all of which are pl'esumed to contain community funds and/or funds belonging to the

                      Estate:

                                                             a. SSH-004628

                                                             b. 55H-OS6008
 ~
 .
                                                             c. 551·660606
  ~
iW'I
                                                             d. SSH-003612
JO
,.,I                                                         e. SSH-034914

  ~                                                          f.   SSH~850012
     I                                                       g. SSH-042479
  .; j
  ~
  ql                                                         h. SSH-008207
                                                             i.   989~03491


                                                             j. 996·66060

                                                             k. 989-03500
                                            2.            Any and all funds in GMS Group, LLC accounts, all of which are presumed to

                      contain commwlity :funds and/or funds belonging to the Estate, (i) in the name of Kenneth McAfee
                                                                                                                                                j·
                                                                                                                                                i
                      or Janet F. McAfee, Individuallyi (ii) Kenneth McAfee and Janet F. McAfee jointly; (iii) which                            Ii
                                                                                                                                                i
                      names one or both of them as a signatory: (iv) which contains fuuds In the care, custody, co.c.trol, for                  iI
                                                                                                                                                !
                                                                                                                                                 i
                      the bc.mefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee, individually or jointly; and (v)
                      ,\greed 'l"c111porary lnJun~lloll                        :z. or tO




              Confidential information may have been r edacted from the document in compliance with the Public Information Act.


         A Certified Copy
         Attest: 9/29/2015
         Stan Stanart, County Clerk


         :;li::i:d__o
         ----~S~
               t e~d~ir~lQ
                         ~GL~
                            SKe~n~ec~~
                                     ~~aL
                                        II~II~--------Deputy
,....-------··----
        06/08/2Gll WED       9:20     FAX 7132243111 Law Office                                                          ~004/.011


           06/07/201 1    10:58 Mitchell & Duff Attorneys at Law                              (fAX)2813415517         P.004/01 1




                  under any address related to eitherofthem~ such as a previous residence~ relative, representative, or

                  attorney's address, or company which did business on behalf of either Kenne1h McAfee or Janet F.

                  McAfee or which was owned in whole or in part by either Ol' both of them. The addresses include,

                  but are not limited to, the following;

                                                            1. PO Box 66352, Houston Texas, 77266

                                                            2. PO Box. 460786 Houston, Texas, 77056

                                                            3. 6650 Fairfield Street Houston, Texas, 77023

                                                            4. 21 I 9 Tangley Houston, TexllB, 77005

                                                       WOODFOREST NATIONAL BANK

                                      3.          Any and all funds in Woodforest National Bank accounts, all of which are

                  presumed to contain conummity funds and/or funds belonging to the .Estate, (I) :in the name of

                  Kenneth McAfee or Janet F. McAfee, Individually; (il) Kenneth McAfee 11Dd Janet F. McAfee
                  jointly; (iii) which names one or both of them as a signatory; (iv) which contains funds in the care,

                  custody, control, for the benefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee,

                  individually or jointly; and (v) under any address related to either of them, such as a previous

                  residence, relative, representative, or attorney's address, or company which clid business on behalfof

                  either Kenneth McAfee or Janet F. McAfee or which was owned in whole or in part by either or both

                  of them. The adch·esses include, but are not limited to, the following:

                                                     a. PO Box 66352, Houston Texas, 77266

                                                     b. PO Box 460786 Houston, Texas1 77056

                                                     e. 6650 Faid'ield Street Houston, Texas, 77023
                                                     d. 2119 Tangley Houston, Texas, 77005


                  .Agrulf Temporary Illjuncdoll                      3or10




           Confidential information may have been redacted from the document in compliance with the Public Information Act.


      A Certified Copy
      Attest: 9/29/2015
      Stan Stanart, County Clerk
      Harris County, Texas



   ,.,11;_--dd
          Ster11ng G. Senechal II!
                                           Q                    Deputy
  0~/0812011   WBD     9121    FAX. 7132243111 Law Office                                                        ~005/011,



    06/07/2011       10:58 Mitchell & Dutt Attorneys at Law                           (FAX)281341S517         P.OOS/011




                                                    BANI{ OF AMERICA, N.A.

                              4.          Any and aU funds .in Bank of America, N.A. accounts, all of which are
                                                                                                                                  .•

            presumed to contain community funds and/or funds belonging to the Estate, (i) in the name of

            Kenneth McAfee or Janet F. McAfee, lndividually; (ii) Kenneth McAfee and Janet F. McAfee

            jointly; (iii) which names one or both of them as a signatory; (iv) which contains funds in the care,

            custody, control, for the beoe.fit, or on behalf of Kenneth McAfee and/or Janet F. McAfee,

            individually or jointly; and (v) under any address related to either of them, such as a previous

            residence, relative, representative, or attorney's address, or company which rud business on behalf of

            either Kenneth McAfee o.l' Janet F. McAfee or which was owned in whole or in part by elther or both

            of them, The addresses include, but are not limited to, the following:

                                             a. PO Box 66352, Houston Texas, 77266

                                             b. PO Box 460786 Houston, Texas) 77056

                                             o. 6650 Fairfield Street Houston, Texas, 77023

                                             d. 2119 Tangtey Houston, Texas, 77005

                                                     BBVA COMPASS BANK

                              5.          Any and all funds in BBVA Compass accounts, including Laredo National

            Bank, including but not limited to the tollowing, all of which are presumed to contain community

            funds and/or funds belonging to the Estate:

                                             a.   113010547049~023

                                                                                                                             j
                                             b. 00810028023
                                                                                                                             I
                              6.          /uly and all funds in BBVA Compass aooounts, including Laredo National             I·
            Bank. all of which are presumed to contBin commwuty funds and/or funds belonging to the Estate,
                                                                                                                             i
                                                                                                                             !
                                                                                                                             j,
            (i) in the name ofKenneth McAfee or JIUlot F. McAfee, Individually; (ii) Kermeth McAfee and Janet
            Asretd Temporary IIIJun~don                       4 of 10                                                        I·
                                                                                                                             J




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Har ris County, Texas


.Lf;_A,J___a
      stenmg G: S8neclial II!
                                                        Deputy
   06/DS/2011 WBO       9t21      FAX 7132243111 Law Office                                                         ll!D06/01l

     OS/07/2011      10:SB Mitchell & Duff Attorneys at Law                              (FAX)281J415517         P.0061011




            F. McAfee jointly; (iii) which names one or both ofthllm as a signatory; (iv) which contains funds in

             the care, custody, control) for the benefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee,

             individually      Ol' jointly;   and (v) under any address related to either of them, such as a previous

            residence) relative, representative, or attorney's address, or company which did business on behalfof

             either Kermetb.McAfee or Janet F, McAfee or which was owned in whole or in part by either or both

             of them. The addl'esses include, but are not limited to, the following:

                                                a. PO Box 66352, Houston Texas, 77266

                                                b. PO Box 460786 Houston, Texns, 77056

                                                c. 6650 Fairfield Street Houston, Texas,.77023
                                                d. 2119 Tangley Houston, Texas, 77005

                                                          WELLS FARGO BANK, N.A.

                                 7.          Any and all fUnds in Wells Fargo Bank, N.A. accounts, all of which are

             presumed to contain· community funds and/or funds belonging to the Estate, (i) in the name of

             Kenneth McAfee or Janet F. McAfee, Individually; (ii) Kenneth McAfee and Janet F. McMee

            jointly; (iii) which names one or both ofthem as a signatory; (iv) which contains funds in the care,

             custody, control, for the benefit. or on behalf of Kenneth McAfee and/or Janet F. McAfee,

             individually or jointly; and (v) under any address related to either of them, such as a :preVious

             residence, relative, representative, or attomey's address, or ~ompany which did business on behalfof

             either Kenneth McMee or JanetF. McAfee or which wa~ owned in whole or in part by either or both

             of them. The addresses include, but arc not limited to, the following:

                                                a. PO Box 66352, Houston Texas, 77266

                                                b. PO Box 460785 Houston, Texas, 77056
                                                c. 6650 Fairfield Street Houston, Texas, 77023
             Asrced Temporary Jlljuner!o11                      5of10




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas




A-44  Sterling G. Senechal 111
                                      £;(                 Deputy
.--------------·-·---·--------------------------------
     06/08/2011 WBD      9~21     FAX 71322431ll Law Office                                                               fZJO 07/011


        06/07/2011     10:58 Mitchell & Duff Attorneys at Law                                (F~13415517               P.007f011




                                                d. 2119 Tangley Houston, Texas, 77005


                                                      CITIZENS FINANCIAL GROUP, INC.

                                 8,         Arly and aU funds in Citiz~::mJ Financial Group, Inc. accounts, all ofwhich are

               presumed to contain community funds and/or funds belonging to tho Estate, (i) in the name of

               Kenneth McAfee or Janet F. McAfee, Individually; (ii) Kenneth McAfee and Janet F. McAfee

               jointly; (iii) which names one or both of them as a signatory; (iv) whioh contains funds in the care,

               custody, control, for the benefit, or on behalf of Kenneth McAfee and/or Janet F. McAfee.

               individually or jointly; and (v) under any address related to either of them, such as a previous

               1·esidence, rela1ive, representative, or attorney's addtess. or company which did business on behalfof

               either Kenlleth McAfee or Janet F. McAfee or which was owned in whole or in part by either or both

               of them. The addresses include, but are not limited to, tho following:

                                                a. PO Box 66352, Houston Texas. 77266

                                               b. PO Box 460786 Houston, Texas, 77056

                                               c. 6650 Fairfield Street Houston, Texas, 77023

                                               d. 2119 Tat~gley Hou.ston, Texas. 77005



                                                                  PERSHIN_G LLC

                                9.          Any and all funds in Pershing, LLC accowtts, all ofwhlch are presumed to

              contain community fund& and/or funds belonging to the Estate, (i) in the name of Kenneth McAfee

              or Janet F. McAfee, Individually; (ii) Kenneth McAfee and Janet F. McAfee jointly; (Ui) which

              names one Ol' both ofthem as a signatory; (iv) which contains funds in the care, custody, control, for

              the benefit, or on behalf ofKenneth McAfee and/or Janet F. McAfee, individually or jointly; and (v)

              Aerced Temporary Jnjuncrloa                       6 orxo




        Confidential information may have been redacted from the document in compliance with the Public Information Act.


   A Certified Copy
   Attest: 9/29/2015
   Stan Stanart, County Clerk
   Harris County, Texas



  A_4d .QSterling    G. Senechal II!
                                                           Deputy
   06/09/2011 WED       9:21      FAX 7132243111 Law Office                                                                  !llo oS/ o11

     OS/07/2011     10:59 Mitchell & Duff Attorneys at Law                                      (FAX)2S13415S1 7          P.OOSJ01 1




            under any address ~:elated to either of them, such as a previous residence, relative, representative, or

            attorney's address, or company which did business on beijalfofeither Kenneth McAfee 01' J8IletF.

            McAfee or which was owned in whole or in pBlt by either or both of them. The addresses include,

            but are not limited to, the following:

                                                     a. PO Box 66352, Houston Texas, 77266

                                                     b. PO Box 460786 Houston, Texas, 77056

                                                     c. 6650 Fairfield Street Houston, Texas, 77023

                                                    d. 2119 Tangley Houston, Texas, 77005


                                                                  GRUNT,AL & CO•• INC_.

                                 10.          Any and all funds in Gruntal & Co., Inc. accounts, including 8DY Gruntal &

            Co., lltc. subsidiaries           Ol'   affiliates, inclucfutg but not limited to the following, all of which al'e

            presumed to contain community funds and/or funds belonging to the Estate:

                                                     a. 989·03491

                                                    . b. 989·05600


                                 11,          Any and all funds In Gruntal &. Co., Inc. e.ecoun~, , il1cludlng any Gruntal &

            Co., Inc. subsidiaries or affiliates, all of which are presumed to contain community funds and/or

            funds belonging to the Estate, (i) in the name ofKenneth McAfee or Janet F. McAfee, Individually;

            (ii) Kenneth McAfee and Janet F. McAfee jointly; (iii) which names one or both of them as a

            signatory; (iv) which contains funds In the care, custody, control, for tho benefit, or on behalf of

            Kenneth McAfee and/or Jooet F. McAfee, individually or jointly; and (v) under any address related

            to either of them, such as a previous residence, relative, representative, or attomey's address, or

            company which did business on behalf of either Kenneth McAfee or Janct F. MoAfoe or which was
            Agrctll 'l'emporar)' Ih)unctlon                          7 utlO




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
 Harris County, Texas



..fl;4-d
      Sterling    G. Senechal IP
                                       Q                        Deputy
   06/08/2011 WED     9:21    FAX 7132243111 Law Office                                                                !ll009/0ll


     06/07/2011     10:59 Mitchell & Duff Attorneys at Law                                f AX)281341 5517         P.009/011




            owned in whole or in part by either or both of them. The addresses include, but are not lhnited to, tbe

            following:

                                               a. PO Box. 66352, Houston Texas, 77266 ·

                                               b. PO Box 460786 Houston, Texas, 77056

                                               c. 6650 Fairfield Street Houston, Texas, 77023

                                               d. 2119 Tangley Houston, Texas, 7?005


                                                             OTIIER ACCOUNTS

                             12.         A!ly and till accounts presumed to contain community funds and/or funds

            belonging to the Estate, (i) in the name of Kenneth McAfee or Janet F. McAfee, Individually; (ii)

            KeMeth McAfee and Janet F. McAfee jointly;. (iii) which name them as a signatory; (iv) which

            contains funds in the care, custody, control, for the benefit1 or on behalf of Kenneth McAfee and/or

            Janet F. McAfee. individually or jointly; and (v) under any address related to either ofthem, such as

            a previous residence, relative, representative1 or attorney's address, or company which did business

            on behalfof either Kenneth McAfee or Janet F. McAfee, including, but not limited to the following:


                                               a. PO Box 66352, Houston Texas, ?7266

                                               b. PO Box 460786 Houston, Texas, 77056

                                               c. 6650 Fairfield Street Houston, Texas, 77023

                                               d. 2119 Tangley Houston, Texas, 77005


                             which contain:

                                         (i)      Funds transfened from 01· that can be traced to the accom1ts described

                                                  herein, including but limited to accounts at The OMS Group, LLC,

            Aem~ Tem-porary lnjunetloo                         BoflO




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas


A ..d_f_o
    Starling G: S8n8Challl!
                                                         Deputy
  06/08/2011 WED        9:21      FAX 7132243111 Law Office                                                             fili010/011

    06/0712011      10:59 Mitchell & Duff Attorneys at Law                                   (FAX)2813415517         P.OlOIOt 1




                                                     Woodforest National Bank1 Bank of America. N.A., BBVA Compass

                                                     Bank1 Wells Fargo Bank, N.A., Citizens Financial Group, Inc.,

                                                     Pershing LLC, and G.nlt'llal & Co,1 Inc.; and/or

                                              (ii)   Any and all additional funds and assets w,hich arc preswned to

                                                     contain community funds and/or funds belonging to the Estate.
                                                                                ,
                      IT IS THEREFORE ORDERED, AD.nJDGED AND DECREED that any entity or

           individual, including but not limited to The GMS Group, LLC, Woodforest National Bank, Bank of

           America, N.A., BBVA Compass Bank, Wells Fargo Bank, N.A., Citizens Financial Group, Inc.,

           Pershing LLC, and Grutnal & Co., Inc., which contains, controls, or possess~s funds presumed to

           belong to the community and/or Estate, is ordered by the Court to effectuate the terms of tbis

           Temporary Injunction should Kenneth McAfee, or any officers, agents, servants, employees, agents,

           servants, successors, assigns, representatives> and/or attorneys acting on ms behalf, attempt to access

           or obtain accounts or property within that entity or individual's control or possession, which may

           contain commtmitY funds and/or funds that belong to 'the Estate.

                      IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this Temporary

           Injunction Order is effective immediately and shall continue in force and effect until the Court me.keil

           a detClmination of what property belongs to the Estate or the Court 1'enders a full and fmaljudgment

           is in the pending wrongful deatl1 suit associated with this matter, which ever is later, or by further

           order of this Court. This order shall be binding on Kenneth McAfee, or any officers, employees,

           agents, servants, successo1·s> assigns, representatives, attorneys acting on his behalf, and on those

           persons in active concert or participation with him. The bond posted by the Administratrix is

            required to remain posted.


            Agreed 'fe111por~ry llljuneclon                       9or10




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



A_Ad .o
    Sterling G. Senechal II!
                                                             Deputy
   06/08/2011 WED       9:22      PAX 7132243111 Law Office                                                      ~011/0ll


     06/0712011      10:59 Mitchell & Duff Attorneys at Law                  (FAX)2813415517                 P.011/011




                                                 ':X)   tI
              SIGNEDon~~~ at~m.




              APPROVED AS TO FORM:



                              Duff
              Texas        o.06J66880
              21 0 Main Street
              Richmond, TX 77469
              Tel. (281)34IM1718
              Fax. (281)34lM5517
              Atton1ey for Independent Administratrix
               Ro~ol~~

               By:.___   ~~~---------------
               DEAN M. BLUMROSEN, ESQ.
               State Bar No. 02517900
               4615 Southwest Freeway, Suite 850
               Houston, Texas 77027
               7l3.S24.222SM Telephone
               713.524.557~ Faoslmil
               Attomey for Heirs f               et Foltyn McAfee
                                                                                                                 I
                                                                                                                .;a      -
                                                                                                                         r-
                                                                                                                        ro
                                                                                                                        0
                                                                                                               .CN




                                                                                     RECORDER'S MEMORANDUM:
                                                                                At tho time of recordation, lhll Instrument was
                                                                              round to be lnadaqusto for the belt photographic
                                                                               reproduction because of Illegibility, carbon or
                                                                              photo copy, dlacolored paper, etc. AIJ blockoull,
               ,1\groecl 'romporK., lojuoclloo                   10 of 10      addlllona and changes were pro~~&nt allhe lima
                                                                                    the Instrument was filed and rucordad.




      Confidential information may have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas



J,t..Jd
     Sterling G. Senechal II!
                                   _Q                        Deputy
Tab2
Order
                    ..                                                                PROBATE COURT   I
         r~                                              NO. 396,935-401
         a
         c
         r::             ROSEMARY FOLTYN, Individually            §
         (~.
                         And as Independent Administratrix of the§                                          \_
         0               Estate of Janet Foltyn McAfee, Deceased; §
         (\J             AND JAKE FOLTYN, Individually            §
         o:l                           Plaintiffs                 §
         0                                                        §
                                                                  §
       I  -
          ~

       I C'J             vs.
                                                                  §
                                                                  §
                                                                  §
          ,.,
          (\j
                         KENNETH COOPER MCAFEE                    §
          N                            Defendant                  §    HARRIS COUNTY, TEXAS
          C'l
          c
                                                                ORDER


                             On this day the Court considered the Plaintiffs' Second Amended

                         Motion for Summary Judgment on Plaintiffs wrongful death claim. The

                         Court, after considering the pleadings, the motion, the response, if any,

                         and the arguments of counsel, is of the opinion that the Plaintiffs'

                         Second Amended Motion for Summary Judgment is hereby

                         GRANTED.       Defendan~,   Kenneth Cooper McAfee is liable to the

                         individual Plaintiffs for causing the death of their daughter, Janet

                         McAfee.

                                ORDERED, ADJUDGED and DECREED that Plaintiff, Rosemary

                         Foltyn, Individually, recover from Defendant, Kenneth Cooper McAfee, after

                         all offsets and credits, judgment in the amount of $1,000.000.00 for her


                                                                 1




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas




A4LoSter11ng G. S nechal Ill
                                                  Deputy
             .I     -

                        .....


                                emotional pain and suffering due to the death of her daughter, Janet McAfee.

                                It is further, ORDERED, ADJUDGED and DECREED that Plaintiff, Jake

                                Foltyn, Individually, recover from Defendant, Kenneth Cooper McAfee, after

                                all offsets and credits, judgment in the amount of $1,0001 000.00 for his

                                emotional pain and suffering due to the death of his daughter, Janet McAfee.

                                This judgment shall accrue together with interest thereon at the rate of 5% per

                                annum from the date this suit was filed on February 23, 2011, until the date

                                of judgment, post-judgment interest at the rate of 5% per annum, and for all

                                costs of Court expended in this cause, for which let execution issue. This

                                Judgment finally disposes of all parties and is appealable.




                                      SIGNED this        ~~ ..rr- day of_---=-/-~
                                                                               ?2ar=--=cb~'----' 2014.



                                                             JUDGE LOYD WRIGHT




                                                                       2




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



A.4d. .a
    Ster11ng G Senech 1111
                                                        Deputy
       Tab3
Application for Writ of
    Garnishment
                                                                                                                                              FILED
                                                                                                                             10/9/2014 10:18:51 AM
                                                                                                                                       Stan Slanart
                                                                                            PROBATE COURT 1                            County Cieri<
                     OM                                                                                                               Hams County

                     JANET F. MCAFEE, DECEASED                         396935-401
                                                              NO. _ _ __

           0              ROSEMARY FOLTYN, Individually§                         IN THE PROBATE COURT
                          AND JAKE FOLTYN, Individually§                                  ONE
                                  Plaintiffs           §
                                                                         §
                                                                         §
                                                                         §
                                                                         §
                                                                         §                       OF
                                                                         §
          ,..             vs.                                            §
          0                                                              §
                          THE GMS GROUP, L.L.C. AND                      §
                          WOODFOREST NATIONAL                            §
                          BANK                                           §       HAREITSCOUNTY,TEXAS
                                  Defendants                                             1 PER WRIT BY CERTIFIED MAILED

                                        APPLICATION FOR WRIT OF GARNISHMENT1 PER WRIT IN
                                                                                                                10-9-2014
                          TO THE HONORABLE JUDGE OF SAID COURT:

                                  COMES NOW, Rosemary and Jake Foltyn (hereinafter referred to as

                          "Gamishors") and makes this Application for Writ of Garnishment against

                          The GMS Group, L.L.C., and Woodforest National Bank, (hereinafter

                          referred to as "Garnishees") and, in support hereof, Garnishors would show

                          the Court the following:

                                                                        I.

                                  1.       Plaintiffs/Garnishors       are     Rosemary         and          Jake   Foltyn

                          ("Garnishors").


                          Application for Writ of Garnishment                                                       Page 1


                                                                                                              C.P!RSONAL OCT 1 3 2014

                            ·-··--·- ---. ·-·   ··· - - - - · - - --   ----- ..... .. ··---- ---- .. -   .




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 Harris County, Texas



.A,4d_ .a
     St rUng G. S n challll
                                                        Deputy
                                2.     Defendant/Garnishee, LGMS Group, L.L.C., is a limited

                          liability company doing business in Texas and may be served by serving its

                          registered agent, via certified mail, return receipt requested, Corporation

                          Service Company, DIBIA CSC -Lawyers         Tnco,~E. 7&. Street, Suite 620,
           'I:J'
                          Austin, Texas 78701.

                                3.     Defendant/Garnishee~::dforest National Bank is a privately
                          held bank doing business in Texas and may be served by personally serving

                          its~tered agent, James D. Dreibelbis, 25231 Grogan's Mill Road, Suite
                          100, The Woodlands, Teas 77380.



                                4.     Venue is appropriate in Harris County, Texas because the

                          Judgment was rendered in Harris County, Texas.

                                                                II.

                                5.     On or about March 21,2014, this Court, in case number 396,935-

                          401 styled Rosemary Foltyn, Individually and as Independent Administratrix

                          ofthe Estate ofJanet Fo/tyn McAfee, Deceased; and Jake Foltyn, Individually

                          v. Kenneth Cooper McAfee entered a Judgment against Defendant, Kenneth

                          Cooper McAfee in the amount of $2,000,000.00, plus pre and post judgment

                          interest, plus costs of Court ("Judgment"). A true and correct copy of the



                          Application for Writ of Garnishment                                  Page 2




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                          Judgment is attached hereto as Exhibit "A" and incorporated herein by

                          reference for all purposes. This Judgment is just, due, unpaid, and remains

                          unsatisfied.

           ,~
                                                                III.

                                6.       To the best of Garnishors' knowledge, the debtor, Kenneth

                          Cooper McAfee does not possess property in Texas subject to execution that
           ,..
           Cl             is sufficient to satisfy the above-described claim. Plaintiffs served post-
           ,..
                          judgment discovery on Mr. McAfee on April 21, 2014. Defendant did not

                          produce any documents establishing his ownership of property in Texas

                          sufficient to satisfy the judgment against him.

                                                                IV.
                                7.       Gamishors have reason to believe, and do believe, that

                          Garnishees, The OMS Group, L.L.C., and Woodforest National Bank, may be

                          indebted to Kenneth Cooper McAfee by maintaining or holding one or more

                          bank accounts. Gamishors believe Kenneth Cooper McAfee's social security

                          number to be 454-82-X:X:XX. Gamishors are not seeking to injure or harass

                          the Garnishees or the Judgment Debtor by sending out a Writ of Garnishment.

                          Rather, Garnishors are attempting to collect on a Judgment. Gamishors

                          request that if Garnishees, The OMS Group, L.L.C., and Woodforest National


                          Application for Wrtt of Garnishment                                  Page 3




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     Sterling G. Senechaf 111
                          Bank are indebted to Kenneth Cooper McAfee by any account or otherwise,

                          that Garnishees hold and allow Garnishors to garnish said belongings.

                          Garnishors also request that if Garnishees hold possessions in a safety deposit

                          box at any branch that Garnishees hold and allow Gamishors to garnish said

                          belongings as pennitted by law.

                                                                v.
                                8.     This Application is supported by the Affidavit of Dean M.

                          Blumrosen attached hereto as Exhibit "8" and incorporated herein by

                          reference for all purposes.

                                WHEREFORE, PREMISES CONSIDERED, Rosemary and Jake

                          Foltyn, request that a Writ of Garnishment be issued as above described and

                          that Gamishors have judgment to partially satisfy the claim above-mentioned

                          as provided by law, together with all costs of Court incurred in this

                          proceedings, and other such relief to which Garnishors may be justly entitled.




                          Application for Writ of Garnishment                                      Page 4




            - - - - - - -- ··· ···· · · · - -·······-··- - - --      -




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      ··------------------------------------------------

          C)
          il.                                                       R~~t~
                                                                                  DEAN M. BLUMROSEN, ESQ.
                                                                                  State Bar No. 02517900
                                                                                  4615 Southwest Freeway, Suite 850
           ~1                                                                     Houston, Texas 77027
           ....                                                                   713.524.2225- Telephone
           0                                                                      713.524.5570- Facsimile
           N                                                                      Dblumrosenlaw@aol.com
                                                                                  ATTORNEY FOR PLAINTIFFS

           I'"'




                          Application for Wtit of Garnishment                                                                    Page 5




                                              .   ····- ···   ·-·-···- ··· - ---- - --·· - -·   ... ... ... . .   ······· .. .




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          ('J
          1;\j




                                    EXHIBIT A




                                             ------------------- -····




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                                               Deputy
                                                               NO. 396,935-401


                              ROSEMARY YOLTYN, fndlvlduall)'          §     IN THE PROBATE COURT ONE
                              And as Independent Adminl~tnltrix of the§
                              Estate of .Jaaet Foltyn McAfee, Deceased; §
                              AND JAh.'"E FOLTYN, Individually          §
         ,.....                             Plaintifft                 §
                                                                       §
                                                                       §                 OF
                                                                       §
         I"'
         1'",                 vs.                                      §
          1\J                                                          §
          t"..                KE!IINETH COOPER MCAFEE                  §
          '••'
                                         Defendant                     §     HARRIS COUNTY, TEXAS

          ,..
                                                                      ORDER


                                    On this day the Court considered the Plaintiffs' Second Amended

                              Motion for Summary Judgment on Plaintiffs wrongful death claim. The

                              Court, after considering the pleadings, the motion, the response, if any,

                              and the arguments of counsel, is of the opinion that the Plaintiffs'

                              Second Amended Motion for Summary Judgment is h.ereby

                              GRANTED. Defendant, Kenneth Cooper McAfee is liable to the

                              individual Plaintiffs for causing the death of their daughter, Janet

                              McAfee.

                                       ORDERED, ADJUDGED and DECREED that Plaintiff, Rosemary

                              Foltyn, Individually, recover from Defendant, KeMeth Cooper McAfee, after

                              all offsets and credits, judgment in the amount of $1,000.000.00, for her


                                                                       1

                                                                                                                        I
                                                                                                                        !
                                                                                                                    I   I'f
                                                                                                                        I,.




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     v   ••




                              emotional pain and suffering due to the death of her dau~ter, Janet McAfee.

                              It is further, ORDERED, ADJUDGED and DECREED that Plaintiff, Jake

                              Foltyn, Individually, recover from Defendant, Kenneth Cooper McMee, after

                              all offsets and credits, judgment in the amount of $1,000.000.00, for his

                              emotional pain and suffering due to the death of his daughter, Janet McAfee.

                              This judgment shall accrue together with Interest thereon at the rate of 5% per
              ,,,
              I,_..J
                              annum from the date this suit was filed on February 23, 2011, until the date

                              of judgment, post-judgment interest at the: rate of 5% per annum, and for all

                              costs of Court expended in this cause, for which let execution issue. This

                              Judgment finally disposes of all parties and is appealable.



                                    SIGNED this               ~I ..s-r- day of _ _!.:.../?2__.(:.-~oQ.C~ch..c;....)._   ___,, 2014.




                                                                       JUDGE LOYD WRIGHT




                                                                                 2




                                              . .... .   ---··- -- ·   - -- - - -                                                     I
                                                                                                                                      (,




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     ......




              ,..




              ,..
              (:)




                                   EXHIBIT B




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A-<4L o
     St nino G. Sen chef Ill
                                               Deputy
                                                         AFFIDAVIT OF DEAN M. BLUMROSEN

                             STATEOFTEXAS                       §
                                                                §
                             COUNTY OF HARRIS                   §

                                      BEFORE ME, the undersigned official, on this day, personally appeared before me,

                             Dean M. Blumrosen, who after being duly sworn, did depose and state as follows:

                                      I.        "My name is Dean M. Blumrosen.l am over 21 years of age, of sound mind,

                                                 have never been convinced of a felony and um capable of making this
          1::;                                   allidavit.

                                      2.         ';I om nn attorney for Rosemary and Jake Foltyn., Gamishors in this

                                                 Garnishment.

                                      3.         ;'I have personal knowledge of the facts as stated in Garnishors' Application

                                                 r~ W<h ofGom;•hmom Md '"'' ~          'hl-lliL
                                                                                       DEAN M. BLUMROSEN

                                      Subscribed and sworn to before me on this~ day of October, 2014




                                           IICHEl.L£ GAIRtli.A fOR$1111
                                              ,)ly c-IIIIGCill!lm
                                                 \)CIOIItll, 2011
                                  .




                                                              - - - - - - - - -----------·- -·-- --- ·- .. ......___             ·----- -- - -- ...




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        Tab4
Motion to Quash Writs of
     Garnishment
                                                                                                                                        FILED
                                                                                                                       1111!112014 4:12'2~ PM
                                                                                                                                stan:Stanan
                                                                                                                                Coun1YCIG11<
                                                                                                    PraOBATE COURT 1           Hsllf> CouniY



                                                               522CAUSE NO. 396935-401
             N
             c         INRE                                                    §          IN THE PROBATE COURT
             ().
                       JANET F. McAFEE,                                        §
                       Deceased                                                §          NUMBER ONE
                                                                               §
                       ROSEMARYFOLYNand                                        §
         i             JAKEFOLYN                                               §
         i ..                                                                  §
         I~            ~                                                       §          OF
         10                                                                    §
         iN            THE GMS GROUP, LLC and                                  §

         I~            WOODFOREST NATIONAL BANK,
                       Defendants
                                                                               §
                                                                               §
                                                                                          HARRIS COUNTY, TEXAS


                                                 MOTION TO QUASH WRITS OF GARNISHMENT



                       TO THE HONORABLE JUDGE OF SAID COURT:

                                  COMES NOW Charles Storer, Power of Attorney for Charles McAfee, Defendant

                       herein, and holder of the accounts Plaintiffs seeks Via the Writs of Garnishment Issued

                       by this Court, who m011es to quash (dissolve} the two Wrfts of Garnishment issued post-

                       judgment in this cause (to Woodforest National Bank and GMS Group}, as the Writs

                       reach accounts andlor assets that are wholly exempt from the reach of judgment

                       creditors (indeed from the reach of all creditors). In support of this Motlon, Mr. storer,

                       would show the following: 1

                                                          I. INTRODUCTION AND SUMMARY

                       1.         This Court Issued two writs of garnishment at the request of Plaintiffs. While a

                                  judgment creditor has a right to pursue collection on their judgment, including via

                                  garnishment upon depository aocounts, Texas and federal law sharply limit what

                                  property of a judgment debtor may be taken. Here, both or the accounts are

                       1
                           Mr. McAfee deslgnated a Power of Attorney heta\lse he 1s incarcerated.


                                                                                ..... or
                                                               MOnoN TO QIJ.I.SH WRFT-5    GAAHISHMEJlf




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                                                             Deputy
                             entirely and undividedly, protected from the reach of all creditors. Because these
           .-
           N
           0                 accounts may not be taken by any creditor, with any judgment, the         two   Writs
           0.
                             issued while the Court was unknowing of the exempt status of these accounts,
           0
           1'1               should and must be quashed.

                                             II. FACTS AND PROCEDURAL HISTORY

           ,...<IJ     2.    Mr. McAfee was convicted of a criminal offense Involving the death of the
           0
           N                 decedent, Janet Foltyn McAfee, and Is currently serving his sentence at a Texas
           0
           N
                             correctional institution. The underlying claim was a wrongful death action against

                             Mr. McAfee. This Court found for the Plaintiffs In the wrongful death action.

                       3.    Post-judgment, the Plaintiffs sought from this Court, and received, two Writs of

                             Garnishment. The Application for Writs of Garnishment made no mentlon of the

                             exempt status of either account. Rather, the Application simply noted that the

                             garnishees, both Woodforest and GMS, may be indebted to the Defendant 'by

                             maintaining or holding one or more bank accounts."           Application for Writ of

                             Garnishment, 117.

                       4.    The first Writ of Garnishment reached Mr. McAfee's depository account at

                             Woodforest National Bank ("Woodforest'). This account, however, is beyond the

                             reach of all creditors, including the judgment creditors in this cause, because the

                             account was opened to receive, received, and Is now holding funds received

                             pursuant to the federal Social Security Disability insurance ('SSDI') system. The

                             account contains no funds other than those received as Social Security benefrts.

                       5.    The second Writ of Garnishment reached Mr. McAfee's depository account held

                             by his former employer, GMS Group, L.L.C. ('GMS').            This account is also



                                                                  ,...,
                                                    MOllOH TO QVASHWfUTS OF GARNISHMENT




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                                                  Deputy
            m                   beyond the reach or aH creditors, including the judgment creditors in this cause,
            N
            0                   because the account Is Mr. McAfee's tax-deferred retirement benefit account
            tl.
            ..                  arising from his employment with GMS •
            0
            L'1
            ,..         6.      In lieu of an Answer, GMS reported to this Court that It Is holding depository

                                accounts belonging to Mr. McAfee. See letter from Matthew F. Lipman, Esq.
            ':"
                                (counsel for GMS Group)to Stan Stanart, County Clerk (Oct. 23, 2014), which is
            0
            N                   a part of this Court's file and Is Incorporated herein by reference. See Exhlbl!
            0
            N
                                ·c. •   GMS' response indicates that the account In question is a retirement

                                account qualified under IRS rules for tax deferment. ld@ Exhibit "2.'

                        7.       Garnishee Woodforest National Bank has yet to answer its Writ.

                                                     Ill. ARGUMENT AND AUTHORITIES

                        8.      All social security benefits, including SSDI, are exempt from collection actions,

                                and beyond the reach of debtors, pursuant to a federal statute that was a central

                                component of the original depression-era Social Security Act. See 42 U.S.C.

                                §407; H. R. 7260 (1935); sea also In re Franklin, 506 B.R. 765, 769 (Bankr., C.D.

                                Ill. 2014) ("These proscripUons have been part of the Social Security Act since

                                1935'). 2

                        9.      The absolute nature of the social security benefit exemption has been recognized

                                by the United States Supreme Court, which observed that 42 U.S.C. §407(a)

                                "unambiguously rules out any attempt to attach Social Security benefils."

                                Bennett v. Amansas, 485 U.S. 395, 397, 108 S.Ct. 1204, 1205, 909 l.Ed2d 455


                        'The exempHon reaches Soeial Seeur1ly retirement ineome, dlsablllty benefits, and supplemental security
                        income, amongst other benefits. See TownSJ)/ v. Dish Networl<, 668 F.3<1 967, 968 (7., Clr. 2012).
                        Veterans' benefits are exempt and lreated the same wa!J. Sea Christenssn v. Pack, 122 Nev. 1309, 149
                        P.3d 40, 48 (Nev. 2006).




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 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas



J!;_4~
 SteHing G sen&Challll
                                                         Deputy
           0
           l'J                 (1988).
           N
           0           10.     The same complete exemption also reaches accounts that qualify for deferment
           a.
                               of federal income tax, Including Mr. McAfee's 401{k) account that Is the subject of

                               the GMS garnishment.             IRS qualified retirement accounts are exempt from

                               collection actions, and beyond the reach of debtors, pursuant to Texas law. See

                               Tex. Prop. Code, §2.0021. The legal issue, and exempt nature, regarding· both
           0
           N
           0                   accounts is neither cootroverslal nor a close call.
           [\j
                             IV. EXEMPTION OF THE WOODFOREST (SOCIAL SECURITY) ACCOUNT
                                   A. The Exemption for Social Security Benefits Is Statutory and
                                                    Contains No Exceptions

                       11.     The federal statute protecting federal social security benefits from the reach of

                               creditors, Including those on deposit, is unequivocal and sweeping In its scope. II

                               is so protective of federal benefits, It goes as far as to prohibit recipients of these

                               benefitS from voluntarily choosing to assign or alienate these benefits, even for

                               valuable consideration. See 42 U.S.C. §407. Indeed, the sole manner these

                               funds can be put Into the hands of others Is through staodard purchases of goods

                               and services after the benefits have been cashed or deposited. These funds

                               may not be assigned to creditors, including by the Involuntary means of

                               garnishment. See Townsel v. Dish Network, 666 F.3d 967, 968 {7"' Clr. 2012)

                               ("A credllor that tried to garnish or attach Social Securlly benefits .... would

                               encounter a §407 defense). 3



                       3
                         The sllltute creates three separate proteellons for social securlty benefits. II forbids assignments or
                       sueh benefits. See 42 U.S.C. §407(a). Second, it makes these benefits beyond the reach of a
                       bankruptcy trustee. Sea ld. Third, and relevant hare, K exempts these be!l!lfi!s from stale or federal
                       judicial action. See /d. ('none of lhe mooeys paid or payable or rights exlsdng under thi! sub<hapter shall b<

                                                                           .....
                                                           MallON TO QUASH WRITS OF GARNISl1MEHT




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                                                         Deputy
                ('J       . 12.    The absolute nature of the exemption is based on Congress' insistence on firm
                N
                ~                  and secure protection for "beneficiaries and those dependent on beneficiaries

                                   from the claims of creditors.' Reams v. Oklahoma, 411 F.3d 1164, 1172 (10111

                                   Cir. 2005); see also In re Greene, 27 B.R. 462, 464 (Bankr., E.D. Va. 1983)

                                   (§407 "deals with the rights of social security recipients and seeks to protect their

               0                   benefits from the reach of creditors").
               N
               0           13.     In fact, Congress wanted to protect beneficiaries "from seizure In the legal
               N
                                   process: lr:J. By doing so, Congress ensured that the underlying purpose of

                                   social security benefits, to provide a minimum level of support and financial

                                   stability, cannot be hindered by creditors, regardless of the merits of the

                                   creditors' claim. See ir:J.; see also In re Buren, 6 B.R. 744, 746 (Bankr., M.D.

                                   Tenn, 1980) ("The purpose of the Social Security Act of 1935 was to provide a

                                   minimal level of economic security for the unemployed, the elderly, the homeless,

                                   and the blind").

                           14.     The Woodforest account that Plaintiffs seek to garnish is funded with social

                                   security deposits. See Oeposivrransaclion record of Woodforest National Bank

                                   (showing monthly direct deposits as received from "SOC SEC US TREASURY").4

                           15.     While Mr. Afee is disabled, he Is admittedly not homeless, elderly, or blind. The

                                   lack of a destitute state, however, as well as !he existence of other means of

                                   suppol}, such as the Texas Department of Corrections, does not cause the

                           subject to execution, levy, aHachment,   gamlshmen~    or other legal process, or to the operation of any
                           bankruptcy or insolvency law").

                           ' A spreadsheet showing all deposits Into the account since December of 2009 Is attached to this
                           pleadif'lll as Exhibit A. The Woodlorest.generated statooment of account activlty Is attached to ltlls
                           pleading as ExhibK B. The account activity ceases In November, 2010 except for ltle exclusive conllnulng
                           Social Security b<lnelils dlreclly deposited and interest on the accounL See ld.


                                                             MOTION TO 0\IASH WRITS Of GA.RHtSHMENT
                                                                             .... $




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    Stan Stanart, County Clerk
    Harris County, Texas



  ~Lt;__.__~_·d/_.......-~=--=·
....- ·         Senechal Ill
          SterliM G.
                                         =.;____.Deputy
           N
           N                    shedding of the exemption of these funds from garnishment or collections. The
           (\J
           0                    Social Security Act uses absolute language, devoid of any exceptions, for any
           ll.
                                circumstances. See Philpott v. Essex County Welfare Board, 409 U.S. 413, 415,

           "
           !II
                                93 S.Cl 590, 34 LEd2d 608 (1973) (because "!he language is                        al~inclusive,'   the

                               Social Security Act prohibits         any state from reaching federal disability benefits);
           ,.l:j                /d., 409 U.S. at416 ('it Imposes a broad bar against the use of any legal process
           0
           N
           0                   to reach social security benefits').5            There is, therefore, no need-testing for the
           N
           ,...                exemption to apply. Cf. Reams              v. Oklahoma, 411        F.3d at 1172 ('To tinker with
           !""

                               that scheme could open the door lor a loss of protection down the road').

                       16.      Rather, the exemption Is absolute. The statutory language, the United States

                               Supreme Court noted, 'Is broad enough to reach all security benefrts,' no matter

                               the cause of the benefits or the situation of the beneficiary." Phl1pott                     v. Essex
                               County Welfare Board, 409 U.S. at417; see a/so In ra Carpanler, 614 F.3d 930,

                               932 (81h Clr. 2010) (exemption statute is unambiguous, and therefore courts have

                               no need lor legislative history or implied exceptions); accord, In re Ragas, 700

                               F.3tt220, 222·224 (5111 Cir. 2012).6

                       17.     The statute, therefore, is an unyielding prohibition on the garnishment sought In

                               this case. See N.L.R.B. v. HH# Trucking, Inc., 755 F.3d 466 (71h Clr. 2014)

                               (•Social Security benefits ... cannot be garnished or otherwise attached after

                       • Phi/pol was an unanimous declslonloplnlon of the Supreme Court

                       • There was, for a brief, time an lmpfied exception, In just one federal cin:vit, for benef~elaries who d'Jd not
                       need the social security 1\Jnds for !heir SIJII!enan<:s. See Cilltmeffe-MobUe Gelheling v. Watkins, 934 F.2d
                       1180 (11~ Clr. 1991). Not one of the CilltmsHe court's sister circuit courts adopted the! holding            !he
                       absolule language of the staMe. CitroneUe's reach, Ill any event, lermlneted at the hand ollhe
                       Coort See Lew v. Siege/,- U.S.-, 134 S.Cl 111l8, 111l5,188 LEd2d 146. 82 USLW 4140
                       2014).



                                                            MOnON TO OUASHWMS OF OJJ\Hls.HME:NT
                                                                            P•goe




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Stan Stanart, County Clerk
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                                                          Deputy
           (')
           ('..!             receipt"); NCNB Financial Services v. Shumate, 829 F.Supp. 178, 180 (W.O. Va.
           N
           0                 1993) (statute 'prohibits attachment, levy, or garnishment on such beneflls"); In
           a.
           0                 re Franklin, 506 B.R. 765, 773 (Bankr., C.O. 111.2014) (exemption provision is not
           d'l
                             tied to Bankruptcy Code and Is assertable defensibly including against

                             garnishments). In re Miller, 445 B.R. 504, 507 (Bankr., D.S.C. 2011) (the statute

           0                 'contains no limiting language' and therefore extends to all social securlly
           N
           0                 income): id., ('section 407(a) operates as a complete bar to the forced Inclusion
           N
                             of past and future social security proceeds In the bankruptcy estate") [quoting In

                             re Carpenter, 615 F.3d g3o, 946 (au. Cir. 2010)): see also Bennatt v. Arkansas,

                             485 U.S. 395, 398, 108 S.Ct. 1204, 1205-06, 99 L.Ed2d 455 (state may not

                             attach social security benefits of state prisoners) (per curiam); Marengo v. First

                             Massachusetts Bank, 152 F.Supp.2d 92 (0. Mass. 2001) (efforts to reach

                             account contained benefit deposits violated Social Securlly Act).

                       18.   Judicial interference with these funds, indeed, is so disfavored, H has been held

                             to Implicate the constitutional due process rights of social securHy beneficiaries.

                             See Dionne v. Bouley, 757 F.2d 1344, 1350 (1st Cir. 1985) ("It is also clear that

                             Dionne's Interest in retaining her exempt social security funds free from

                             attachment was the kind of property interest that is entilfed to due process

                             protection').

                       19.   Earlier this year, the United States Supreme Court once again held that the

                             statute means what it says;

                                 § 522 does not give courts discretion to grant or withhold exemptions
                                based on whatever considerations they deem appropriate. Rather, the
                                statute exhaustively specifies the criteria that will render property
                                exempt.


                                                                    .... ,
                                                    MOTIOH TO QUASH WRilS OF GA.RNIStodEHT




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A Certified Copy
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Stan Stanart, County Clerk
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ft4L_a
     Sterling G: Sanecna! 111
                                                  Deputy
           v
           N
           N                    Lawv. Siegel,- U.S.-, 134 S.Ct. 1188, 1196, 138l.Ed2d 146,82 USLW 4140
           0
           1).
                               (March 2014); see also /d. ('courts are not authorized to create additional
           0
           ul                  exceptions'); In re Franklin, 506 B.R. at 773 ('Congress has strongly expressed

                               its policy of protecting social security benefrts, and it is not for the courts to read
           ';t
                               an Implied exception"lnto the exempting statute).
           0
           N           20.     The mountain of precedent and the unambiguous wording of the federal statute
           0
           N                   mandate the quashing of the Woodforest writ. Social security funds can never be

                               used to pay creditors, except when received, turned into cash, and become the

                               subject of voluntary spending by the debtor. See In re McFarland, 461 B.R. 242,

                               250 (Bankr., S.D. Ga. 2012) (social security benefits remain exempt from

                               creditors after they are 'received by the Social Security recipient and deposited

                               Into the bank"); In re Moore, 214 B.R. 623, 630 (Bankr., D. Kan. 1997) (the funds

                               do not lose their exempt status when deposited Into a bank account"); see also S

                               & S Diversified Sa/Vices v. Taylor. 397 F.Supp. 549, 552 (D. Wyo. 1995) (Social

                               Security benefits remain exempt when deposited into joint bank account). 7

                       21.     These benefrts, and the Woodforest Bank account, are, absolutely and entirely,

                               beyond the reach of any creditors, and therefore an impermissible object of a writ

                               of garnishment. See NCNB Financial Services v. Shumate, 829 F.Supp. at 180

                               ~.D.     Va. 1993) (statute "prohibits attachment, levy, or garnishment on such

                       7
                         one creditor can get at soda! security benefits: the government of the Unhed States. Sloe Locl<harl v.
                       Un~ed States, 546 U.S. 142, 145, 126 S.Cl 699, 701, 163 L.Ed2d 557 (2005) (federal government may
                       aHach social securtty benefits of federal student loan deblo!s. Congress, however, explicitly passed an
                       exeeptlon to the no-atlachment provision of the Social Security Act to achieve that resuft. See 31 U.S.C.
                       § 371e(c)(3)(A)(i), The fact that Congress had to tw!ee-amend. the debt conectlon legislation, and
                       specifically override the an!k:redllor provision of the Social Security Act. dem<instrales how slliadfastlhls
                       prolecllon remains.


                                                                          ,..,..
                                                           MOTION TOQVA.SHWRITS Of GAANJSHMEHT




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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
                              benefrts"); In re F'ranklin, 506 B.R. at 773 (Bankr., C.D. 111.2014) (eKemption

                              provision Is not lied to Bankruptcy Code and is assertable defensibly Including

                              against garnishments). To ensure that the congressional/statutory protection of

                              social security benefits Is achieved, writs of garnishment Inadvertently issued

                              without the Court's knowledge of the exempt status of these funds, must be

                              quashed.       See NCNB F'inanc/a/ Services             v. Shumate,      829 F.Supp. at         181
         c
          N                   (quashing writ to the extent it reached exempt funds)."
          0
          N
                        B. COMINGLING OF SOCIAL SECURITY BENEFITS DOES NOT AFFECT THEIR
                           EXEMPT STATUS, AND ANY SUCH COMINGUNG IN THE WOODFOREST
                                           ACCOUNT CEASED YEARS AGO
                       22.    It may be true that the Woodforest Account was_ occasionally used to hold other

                              assets of Mr. McAfee, unrelated to his social security benefits.                     This has no

                              bearing on the protected status of the account and of the social security funds

                              within it. See NCNB Financial Services v. Scumate. 829 F.Supp. 178, 180 (W.O.

                              Va. 1993) ("Social security benefrts are protected even If they are commingled In

                              a savings or checking account with funds from other sources'); In re

                              Lichtenberger, 337 B.R. 322, 325 (Bankr., C.D. 1112008) (same).

                      23.     While courts may. differ in the accounting method used to calculate protected

                              funds In a comingled account, no court has questioned the protected status of



                      ' While the federal regulations Insist that banks calculate the •tookback" amount, reaching two months of
                      deposits. that small perlod ol time only eddress!l11 the bank's requiremenls. None of lha deposits of
                      federal benefit funds are reachable by creditors, no mellor how long ago the deposn occwed. See 31.
                      C.F.R. §212.6 (duty to determine an amount that the flnanclallnstftullon must protect from Cfejjilor.;); /d.,
                      §212.9 (safe harbor for financial Institutions form liabilty claims). The regulations do no~ and cannot,
                      change the blanket exempllon of fedaral baner~ funds from the reach of Cfejjftors. See /d., §212.8
                      ('Nothing In this part shall be construed to llmH an Individual's !1ghl under Federal law to assert against a
                      creditor a further exemption from garnishment in excess of the protected amoun~ or to alter the exempt
                      status of funds that may be protected from garnishment under federal law.


                                                          ~TO



                                                                         -·
                                                                    QUASH WM$ OF GAAHiSHMENT




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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
          iJ)
                               social security benefits in a comingled account. On the contrary, the protected
          -N
           N                   status is 'black-letter law: nationally.              See Philpott v. Essex County Welfare
           0
           ii.
                               Board, 409 U.S. 413, 416-17, 93 S.Ct. 590, 592-93, 34 LEd2d 608 (1973) (funds
           0
           !!I                 exempt so long as they maintain the character of money); In re King, 508 B.R.

                               71, 78 {Bankr., N.D. Ind. 2014) ("commingfing of an eamed income credit refund

                               with other funds does not affect the ability to claim the statutory earned income
           0
           N                   credit exemption•); In re Lantz, 451 B.R. 843, 647 (Bankr.. N.D. Ill. 2011)
           0
           N
                               {depositing funds into an account that contains other funds does not lose exempt

                               status for social security funds, if the latter can be traced); see generally 2A Soc.

                               Sec. Law & Prac. §34.8 {Sept. 2014).

                       24.     Because the account may have received, and may have com!ngled funds on

                               deposit, this Court can hold a hearing to trace the protected assets, if the

                               Garnishor deems such a hearing worth the time and expense. See Philpott, 409

                               U.S.a! 416-17, 93 S.Ct. at 592-93; see also Cl!rlstensan v. Peck, 149 P.3d at 48

                               (it •defies logic" to argue that exempt benefrts lose that status with comingling).9

                       25.     in the present case, the Court need not be concerned about choosing the best

                               method, as the bank records for the account show that the funds now on deposit

                               came excluslve!v from the Social Security Administration. See In re Hensley,

                               393 B.R. 186, 198 (Bankr., E.D. Tenn. 2008) {accepting testimony that entire




                       • Tracing can be dons lllrough lila lasllnllirst out method (UFO), last !nllast 0\ll (liFO), and other means.
                       All calculations are •an equttable subsb1uta for the Impossibility of specifiC identifiCation." In ro Lantz, 451
                       B.R. at 848; In ro Lichtenberger, 337 B.R. 322, 325 (Bankr., C.D. m. 2006) (selection of methods should
                       bs guided by !he principle that exemptions are to bs Interpreted liberally, In favor of the deblor). In other
                       Instance•. courts hove chosen e pro-mta basis b~ measuring the percentage of deposita that came from
                       lite exempt source. Sea Nail:son v. McGuire, 2006 Wl1875383, at •4 (D. Nebr. 2006).

                                                            MOTlON TO OUAStfWJUTS OF GA.RNIS'HMEHT
                                                                            Pa;e10




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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
           {'.
                              source of funds in bank account except for one gift were social security
           -~
           N
           0                  benefils). 10
           tl.
           0                                  V. EXEMPTION OF THE GMS (IRA) ACCOUNT
           ll'l
                       26.    The exemption for IRS qualified tax-deferred retirement accounts, such as Mr.

                              McAfee's GMS account, comes from stale law.                     See Tex. Prop. Code,
           ">!
           0                  §42.0021 (a) (including within exemptions •a person's right to the assets held In or
           N
           0                  to receive payments, whether vested or not, under any stock bonus, pension,
           N
                              annuity, deferred compensation, profit-sharing, or similar plan"). Such funds and

                              such .accounts are "exempt from attachment. execution, end seizure for the

                              satisfaction of debts• so long as the account Is exempt from immediate federal

                              income taxation. /d.; sea a/so Lozano          v. Lozano, 875 S.W.2d 63. 66   {TelC.App.-

                              Houston [1411>] 1998). IRAs have been exempt from the reach of creditors in

                              Texas, including judgment creditors, since 1987.                See Williams v. Texas

                              Commerce Bank. 766 S.W.2d 344, 346 (Tex.App.- El Paso 1989).

                       27.    The GMS account is, was intended to be, and is set forth by GMS as a tax-

                              deferred rellrement account, and qualifies for exemption under §42.0021(a). See

                              Letter from Matthew E. Lipman (counsel for GMS) to County Clerk (Oct. 23,

                              2014) (Exhibit 2) (describing garnished account as a 'DLJ Qualified Retirement

                              Plan"); see a/so Summary Plan Description for GMS Group, L.L.C. Salary




                       10
                          A spreadsheet showing aH deposits Into the account since December o! 2009 Is attached to !his
                       pleading as Exhibit A.

                                                       MOTION 10 QUASH WRfTS OF GARHLSHMENl
                                                                      PotQe'11




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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
           tJ)
           N                   Savings Plan, at p. 3, 1)6 (describing employee contributions as 401(k) tax-
           (IJ
           0                   deferred contributions). 11
           fl.
           0           28.     The GMS account, therefore, may not be turned over to                    a creditor,   including by

           ""                  garnishment. See Bergman v. Bergman, 888 S.W.2d 580, 586 (Tex.App. -                                El
                               Paso 1994) {reversing turnover order because account was exempt); accord Nu-
           ,..'\t
          c                    Way Energy Corp. v. Delp, 205 S.W.3d 667, 679 (Tex.App. -Waco 2006); Kent
          1\J
          0                    v. Holmes, 139 S.W.3d 120, 131 (Tex.App. -Texarkana 2004); Bergman v.
          (\)

          ...                  Bagmen, 888 S.W.2d 580, 586 (Tex.App.- El Paso 1994); Morgan v. Horton,

                               675 S.W.2d 602, 604 (Tex.App. - Dallas 1984). The unanimous voice of !he

                               oourts resufts from the clear legislative purpose              to 'protect the Interests in the
                               retirement fund from credHors and assignees' Kent v. Holmes, 139 S.W.3d at

                               131.

                       29.     Like with social security benefits, the exemption for tax-deferred retirement

                               acoounts is read without neither exemptions nor narrowness, to fulfill a state

                               policy favoring debtors that has existed since the nineteenth Century.                           See

                               Bergmen v. Bergman, 888 S.W.2d 580, 586 (Tex.App.- El Paso 1994) ld., 888

                               S.W.2d at 585. ('the long standing public policy of Texas has favored debtors

                               over creditors) [citing Be// v. Indian Uve-stock Co., 11 S.W. 344, 346 (Texas

                               1889)].

                       30.     There can be littte doubt that a firm such as GMS, which represents itself as a full

                               service brokerage house,· and advises people on planning for their retirement,

                               presented their employees w~h anything other than an IRS-qualified plan for their

                       11
                         The <:hart of accounls Included In Mr. Lipman's fetter (ExhlbH '2 to ihatletter)ls attached to this pleading
                       as ExhibH C. The Plan Description Is attached to lhls pleading as Exhibit D.


                                                           MOTION iO O!JA$H ~ITS OF Q:AAMSHM£NT
                                                                           P1;et2




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
           m                   retirement benefit. See In re Youngblood, 29 F.3d 225, 228 (51" Cir. 1994) (tax
           N
           N                   treatment of account is determinative inquiry under §42.0021); see also id., 29
           0
           !l.
                               F.3d at 229 ("the legislature intended for its own slate couns ... to defer to the
           0
           lrl                 IRS in determining whether a retirement plan is 'qualified' under the Internal

                               Revenue Code"); Lozano v. Lozano, 975 S.W.2d at 67 ('evidence that an
           Ill'
           ,...                account ls an Individual retirement annuity is sufficient to establish that it Is
           0
           N                   exempt"). 12
           0
           N           31.
           ,..                 While Mr. Storer has, and can put on evidence showing the tax-exempt nature of

                               the GMS account, that exemption is clear from the facial descriptions of the

                               account Issued by GMS.            in any event, garnishment has no basis in Texas'

                               common law, and is purely statutory.                   Consequently, a pany claiming an

                               entitlement to garnishment has to prove that the property he is after is subject to

                               the procedure. See Del-Phi Engineering Associates v. Texas Commerce Bank,

                               771 S.W.2d 569, 591 (Tex.App. - Beaumont 1969) (Burgess, J., dissenting)

                               (motion to dissolve writ joins the issue, and then par1y seeking garnishment must

                               put on proof that they are entitled to the funds).

                       32.     That burden cannot be met by the Plaintiffs in this cause, as the GMS account Is,

                               beyond question, a tax-deferred retirement account and beyond the reach of all

                               credilors. 13




                                                                                                                   or
                       " Moreover, unliKe wilh social seeuriiy benefits, it ts !he account that is exempt; !he source the funds is
                       lm!levanl Seo id., 975 S.W.2llat 66.
                       " If the burden l• placed on Mr. Storer, •• lhe party claiming the exempllon, he can easily do "" If
                       permitted an evidential)' hearing with sufficient time to subpoena the needed records.
                                                          MO'TICIN TO QUASH WFtfTS OF GARNISHMENT
                                                                          P*13




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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
          0                                                      PRAYER
           ~
          N
          0                   WHEREFORE, PREMISES CONSIDERED, Charles Storer, Power of Attorney
          !l.
                       for Defendant, Charles McAfee, respectfully prays that the Court enters an Order
           0
           1!1         quashing {dissolving) the two Writs of Garnishment Issued in this cause as reaching
           ...         exempt assets that cannot be garnished, for any reason, and further prays for such
           ...         other and further relief to which he or Mr. McAfee may be entitled, in law or In equity.
           0
           N                                                      Respectfully submitted,
           0
           N
           ,..                                                    ANDERSON PFEIFFER, PC


                                                                   /s/Xstner ,J!,ndi!rmn
                                                                   By: Esther Anderson
                                                                   SBN: 00792332
                                                                   845 FM 517 West, Suite 200
                                                                   Dickinson, Texas 77539
                                                                   Office: 281.488.6535
                                                                   Facsimile: 281.614.5205
                                                                   EmaH: eslher@probateguarrJianshlp.com

                                                                   Of counsel on the Pleading:

                                                                  lsi 'Ro5ert Teir
                                                                  Robert Teir
                                                                  Robert Teir, PLLC
                                                                  845 FM 517 West, Suite 200
                                                                  Dickinson, Texas 77539
                                                                  Office: 832.365.11g1
                                                                  Facsimile: 632.550.2700
                                                                  Email: rob@telrlaw.com

                                                                  Attorneys for Mr. Charles Storer




                                                     MOTION TO QUASH WRITS OF GARH1SHMEHT
                                                                   PB~i.t




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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
           i!J                                      CERTIFICATE OF SERVICE
           N
           0
           :l.
           0                   1. Robert Teir. undersigned below, hereby certify that a true and correct copy of
           u'1
                       the following has been forwarded to all parties and/or counsel of record through our
                       electronic service provider and/or facsimile on !his 19111 day of November, 2014.
           r:t
           ....
           0
           (IJ                                                               /s!:Rc6ert 'leir
           0                                                                 Robert Teir
           N

                       cc:   Matthew E. Lipman
                             Faust Oppenheim LLP
                             488 Madison Avenue                              Via Electronic Service Provider & .
                             New York. New York 10022                        Facsimile 212-371-11410

                             Dean M. Blumrosen, Esq.
                             4615 Southwest Freeway. Sui!e 850                           tronlc Service Provider &
                             Houston Texas no21                                          Ia 713-524-5570


                             Defendant Woodforest National Bank
                             (as counsel Is not known as this party has not
                             yet answered)




                                                    MOTJOn TO Qu..\SH YmrTS OF GA.fUilStw£1(f
                                                                     P~IU




     Confidential information may have been redacted from tbc document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



                                                   Deputy
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                               =                           ~                  Date                               Balance on Account                  SSOI     Other Deposits     Source Mthdrawal         Source/Chk#
                                                          :>
                                                         5I                 121281!!9                                                $4,413.03
                              -<(""}=
                                                         ~                                                01119110                   $4.413.03    $2,184.00                          SSDI
                               (!>                       :r                                               01127110                   $6,597.03                                                  $25.00         AcctFee
                               "'!
                               -                         .,                                               01127110                   $6,57:!.03                         $4.35
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                                                          <>                                                                                                                                  $2,000.00          111007
                                                          t'>                                             02116110                   $4,576.36    $2,184.00                           SSDI
                                                          ..,:>                                           02127110                   $6,760.36                          $5.03      interest
                                                          t>
                                                          c.                02127110                                                 S6,765.41
     0                                                    ~                                               03/02110                   $8,765.41                                                  $6S6.55
    4]                                                                                                    03Jit3110                  $6,108.fl6                                                 $325.00          #1008
     c                                                    c.                                              03105/10                   S5,783.fl6                                               $2,000.00          111010
    q                                                                                                     03116110                   $3,783.$6    52.184.00                          SSDI
                                                          "=<'
                                                          0                                               03127110                   $5,967.86                          $0.20      lnterut
                                                           5I               OJ/27110                                                 S5,96a.06
                                                          :;.                                             03131110                   $$,968.06                                                $2,000.00        #10011
                                                          .
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                                                                                                          03129110
                                                                                                          04106110
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                                                                                                                                      $3,773.98
                                                                                                                                                                                               $194.08          111012
                                                                                                                                                                                                $3SO.OO         #1013
                                                          c                                               0411!l/10                  $3,363.98                                                  $190,00         #1014
                                                          5I                                              04120110                   $3,193.98    $2,184.00                          SSDI
                                                          ."a                                             04123110                   $5,377.98                     $25,16'2.66   WlfeTran                                 II~
                                                                                                          04123110                  $30,540.84                                    Interest      510,00         Wire fee
                                                          :r                                              04127110                  $30,530.64                          Sll.35
                                                          "0                04127110                                                $30,530.99
                                                                                                                                                                                                                          •   -
                                                          5I                                              04/30110                  $30,530.99                                                $2,000.00          #1015
                                                         '1:::1                                           05104110                  $28,530.99                      $9,735.92         WT
                                                          =                                               05JD5110                  $38,266.91                                                   $10.00             TF
                                                          "'                                              05105110                  $311,256.91                                                $300.00           111018
                                              ·('
                                                          :;=                                             05112110                  $37,9fl6.91                                               $1,000.00          #1019
                                                                                                          05115110                  S35,9fl6.91   $2,184.00                          SSDI
                                                          ~
                                                          :r                                              02127110                  $39,140.91                          $1.50      Interest
                                                          :;.               OS/27110                                                $39,142.41
                                                                                               06/15110                             $39,142.41    $2.164.00                         SSOI
                                                          "-cc                          61281201                                    $41,326.41                          $1.76      ln-1
                                                                            0612ll11Q                                               $41,328.17
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                                              =                        s.                       7101201               $41.328.17                                        $15,000.00                                 #1027
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                                                                       ::::                               07107110    $26,328.17                                        $10,000.00                                 #1026
.;;;;;;;;:   11-..
                                              ~                                                           07120110    $16.328.17     $2,184.00                 SSOI
                                                                       9
                                              ('1                                                         07127110    $18,512.17                  $0.93     lnleretit
                                                                       ~
                                              ('!)                     ,...,        07127110                          $18,513.10
                                              .,
                                              -                                                           08117110    .$18.513.10    $2,184.00                SSOI
                                              ~                        ~                                  06123110    $20,697.10                                         $6,000,00                                 #1028
                                                                       CT                                 08127110    $14,697.10                  50.78     Interest
                                                                       ,.,::::,.,   lll271200                         $14,6ll7.88
                                                                       ...                                09114110    $14,697.88     $2,184.00                SSDI
                                                                                                          0812711()   $16,881.88                  $0.67     ln..,est
                                                                       "'Q.         91271201                          $16,882.55
                0
               .g                                                      !l                                 10/19110    516,882.55     $2,164.00                SSDl
                                                                       ....
                c                                                      Q.                                 10/27/10    ~19.088.55                  S0.72     Interest
                                                                       ::;>         16127110                          $19,067.27
               ..'.!                                                   0                        11/1812()1            $19,067.27     $2,164.00                SSOI
                                                                       9                        1111Si201             521,251.27                                               $55.00                              #1029
                                                                       ;;.                             11127110       $21,19627                   $0.84     lnlert!$1
                                                                                    11127110                          $21,197.11
                                                                       Q.
                                                                       "'                                                                                               $19,024.63                                 #1031
                                                                       0                                  11129/10    521.197.11
                                                                       2                                  12114110     $2,172.48     S2, 164.00               SSDI
                                                                                                          12127110     $>11,358.48                $0.16     lnt..,st
                                                                       ..,9         12127110                           $4,356.64
                                                                       a                                  01118111     $4,358.64     51,842.90                 SSOI
                                                                       :;-                                01127111     $0,199.54                  50.21     Interest
                                                                       0
                                                                                    01127111                           $6,1!19.75
                                                                       "'                                 02115/11     56,199.75     $1,842.90                 SSOI
                                                                       ..,9                               02128111     $8.042.65                  S0.31     Interest
                                                                        ;:          02126111                           $8.,042.96
                                                                                                          03/15111     $8,0<12.96    $1,842.90                 SSOI
                                                                        """                               03/28111     $9,885.86                  S0.34     lntorest
                                                                       !.           03/28111                           $9,886.20
                                                                       ;;.                                04119111     59,88620      $1,842.90                SSDI
                                                                       ;;.                                04127111    $11,729.10                  $0.43     Interest
                                                                                    04127111                          $11,729.53
                                                                       "'c.,                              05117111    $11,729.53     $1,842.90                 SSDI
                                                                                                          05127/ll    513,572.43                  $0.51     Interest
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                                                            =                              ll6/14111   $13,572.94     $1,942.90                SSOl
                                  ~                                                        06/27111    $15.415.94                  $0.61     tnterest
                                                                               OS/27111                $15,416.45
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                                                                                                       $17,260.01
                                                                                                                      $1,942.90
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                                                             ..,<:1'                       07128111    $17,260.01                  $5.00         ESI
                                                                                           08116111    $17,265,01     $1,942-90                SSOI
                                                           ""...                           08127111    $19,107.91                  $0,16     lnt"""'l
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                                                                               08127111                $19,108,67
      t;;j                                                 .,"',..                         09120111    $19,108.67     $1,942-90                SSOI
                                                           ;:;                             09127/11    $20,951.57                  $0.83     lnlafest
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                                                           Q                                           $22,795,30
                                                       I    3                  10121111
                                                                                           10127/11
                                                                                                       $22,786.15
                                                                                                                                   $0.89     Interest

                                                           ;-                              10/31111    $22,796.19     $3,758.70            Soc Sec?
                                                                                           11/1S/11    $26,554.89     $1,942.90                SSDI
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                                                            Q                                          $28,391.79                  S1.18     ln!en>S!
                                                            ,..                11127/11                $28,398.97
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                                                                                           12120111    628,3!18.97    S2, 194.00               SSOI
                                                                                           12127/11    $30,582.97                  51.15     Interest
                                                           "a=                 12127111                $30,584.12
                                                            s·                             01106112    $30,594.12        S86.~0            Soc Sec?
                                                             ,..                           01117112    $30,650.52     $1,976.60                SSOI
                                                            0
                                                                                           01127112    $32,627.12                  $1.33     Interest
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                                                            =                  01/Zl/12                $32,628.45
                                                            ;;;·                           02114112    $~,628.45      $2,043.00                SSOI
                                                            ,..=                           02107112    $34,671.~5                  $1.42     Interest
                                                           ":;;                O:V%7112                S34,G72.87
                                                                                           03/0S/12    $34,672.87                                         $100.00 IRS PtoCC$sing Fee
                                                            ~                              03120112    $34,572.87     $2,043.00                SSOI
                                                                                           03123/12    $30,615.87                                        $3,685.80     Tma•u'Y levy
                                                           ,.;;                            03127/12    $32,930.07                  $1.37     lnterelll
                                                            "d                 03/27112                $3:1.,931.44
                                                            c                              04117112    532.931.44     $2,04300                 SSOI
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                                            3                               05115112    $34,975.87     $2,043.00             SSDI
                        (j                  ."                                          $37,018.87                 $1.52   lnlorest
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                                            "'..,                           06/:!7112   539,063.39                 $1,54   Interest
                                            ..."'               06127112                $39,00433
                                            ~                               07117112    $39,004,93     $2,043.00             SSOI
                                            .,"                             07127112    $41,107.93                 $1,63   Interest
                                            Q..
                                                                07127112                $41,109.56
                                                                            08/14112    $41,100.56     $2,043.00             SSDI
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                                                                                                                   $1.78   tnterest
                                                                            00127/12    $43,152.56
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                                            "'                              09118/12    $43,154.34     $2,043.00
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                                            3                   09127112                $45,199.20
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                                            t>                              10127112    $47,242.20                 S1Jl8   Interest
                                            Q..
                                            Q                   10127112                $47,244.118
                                            "'c                             11120/12    $47,244.08     $2,043.00             SSDI
                                            3t>                             11127112    $49,287.08                 $2.02   lnlefesl
                                                                11127112                $49,289.10
                                            a                               12118/12    $49,289.10     $2,043.00             SSDI
                                            Ei'                                         $$1,332.10                 $2.05   fnloresl
                                            t>                  12127112                $$1,334.15
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                                            3                               01128/13    $$3,401.15                 S2.29   lnte<0$1
                                            'E.                                         $$3,403.44
                                             ;·                 01/21!113
                                                                            02119113    $53,403.44     $2,067.00              SSOI
                                            ""'"'                           02/27113    $55,470.44                 $2.22   lntereot
                                                                02127113                $.55,472.66
                                            !.                              03119113    $55,472.66     $2,067.00             SSOI
                                            ;.                                          $57,539.66                 S2.15   lntell!St
                                            g.                  03127113                $57,541.81
                                            .,"'                            04/16113    $57,$41.81     $2,067.00             SSDI
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!!?.                                                       :::1                                         05114113          $59,611.29     $2,067.00                SSDI
                                -<=                                                                                       :161,678.29                  5<!.49   lnlerest
             -                   (j                        .,3                    05127/13                                $61,680.78
·-                                                        '<                                            06/11l/13         :161.680.78    $1,756.95                 SSDI
                                ;:;-                       .,="                                                           :163,437.73                  $2.64    ln!l!rest
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                                                           ..,"                   011127/13                               $83,440.37
                                                           er                                           07116113          :163,440.37    $2,067.00                SSDI
                                                           g                                                              :165,507.37                  $2.64    lnleresl
                                                                                  07!27113                                $65,510.01
                                                           .......=                                     011120113         $65,510.01     $2,067.00                SSDI
                                                           Q.
                                                                                                        011127113         $67,577.01                   $2.80    lnlerest
        0                                                 ,.n
                                                                                                                          $67,579.111
                                                                                  011127/13
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                                                           0                      OS/:!7/13                               $69,649.71
                                                      I    3                                            1011St13          $69,649.71     $2,067.00                SSDI
                                                          ;:                                            10127113          $71,716.71                   $2.90    Interest
                                                          ..,                     10127/13                                $71,719.61
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                                                           0                                            10131/13          $71,719.61     $2.538.80                 SSDI
                                                           n                                            11119113          $74,258.41     $2.(lS7.00                SSDI
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                                                                                                        11127113          $76,32M1                     $3.17    lntetliSI
                                                           ...3                   11127113                                $76,328.58
                                                                                                        12127/13          $76.326.58                   $3.14    ln!l!resl
                                                           :;·
                                                          -=                      12127113                                $76,331.72
                                                                                                        01127114          576,331.72                   $3.24    lntarost
                                                           0
                                                           "3                     01127114                                 $76,334.96
                                                          "g.                                           02127114           $76,334.96                  $3.24    lnlerest
                                                                                  02127114                                 $76,338.20
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Stan Stanart, County Clerk
Harris County, Texas



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Harris County, Texas



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Harris County, Texas
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Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



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Stan Stanart, County Clerk
Harris County, Texas
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Stan Stanart, County Clerk
Harris County, Texas



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Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



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Stan Stanart, County Clerk
Harris County, Texas



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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
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Attest: 9/2912015
Stan Stanart, County Clerk
Harris County, Texas
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Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



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     Sterling G. Senechal II!
                                                             Deputy
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A Certified Copy
Attest: 9129/ZOlS
Stan Stanart, County Clerk
Harris County, Texas



                                                                    Deputy
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Stan Stanart, County CJerk
Harris County, Texas
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 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas


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Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



                                                                        Deputy
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Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas




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Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



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Stan Stanart, County Clerk
Harris County, Texas
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Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



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Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



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Stan Stanart, County Clerk
Harris County, Texas



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Stan Stanart, County Clerk
Harris County, Texas



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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



A4-L..J::;?
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                                                                     Deputy
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Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
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Harris County, Texas
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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



                                                                     Deputy
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Stan Stanart, County Clerk
Harris County, Texas
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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
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A Certified Copy
Attest: 9/29/2015
Stan Stanart~ County                  Clerk
Harris County, Texas



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Stan Stanart, County Clerk
Harris County, Texas



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Harris County, Texas
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Harris County, Texas
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Stan Stanart, County Clerk
Harris County, Texas
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Harris County, Texas
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Harris County, Texas
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Harris County, Texas



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Harris County, Texas




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Harris County, Texas



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Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas




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Attest: 9129/2015
Stan Stanart, County Clerk
Harris County, Texas




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Stan Stanart, County Clerk
Harris County, Texas



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Stan Stanart, County Clerk
Harris County, Texas
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Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
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Attest: 9/2912015
Stan Stanart, County Clerk
Harris County, Texas



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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas


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Stan Stanart, County Clerk
Harris County, Texas
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Attest: 9/2912015
Stan Stanart, County Clerk
Harris County, Texas



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Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



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Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



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                       DATI ...........B>LIHC£         ~m   ............ ~            ll.\lE .......... ,.Il'I.AACI'
                       OH8           76,314.96         CN7            76,33&.20




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



                                                                  Deputy
          ·0                                                     FAUST OPPENHEIM LLP
          i('J                                                        ATTOII!IMATLAW
                                                                      411 MADISON AVEIIUE
           0                                                       "EWY0Rt<.IIEWYOIIK10022
           li.          W!IITI!II"S DIRECT S-lWI.                    WEJ!Sf&· WNf«hw com                   TELEPHOt<£ l212lrrt·noo
                        mal:thnl'llpm~rolrw.eom                                                             F...:Sl!.l!lE!'211)U1 ...10

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                                                                                             O<lobcr 23, 2014



           '"'
           0            VIA CISRTIF/ED MAll/RRR
           N
           c            Stan Slanart, C<lunty Clerk
                        Hams County, T<Xl'S
           N
                        Probate Courts Department
                        P.O. !lox 1525
                        Houston, TX 77251-1525


                                         Re:        Writ of Garnishment- After Judgment
                                                    Docket No. 396?35-401! &tate of Janet!'. McAfee, Deceased


                        To whom it may concern:

                               We are counsel for The OMS Group, LLC ("OMS"), Oomlshee in the above n:fcrenced matter.
                        GMS received the Writ or ODmishment (Exhibit l) with an order to appear at the Hams County
                        Probate Court. Aocording to 1be eJcrl< with whom I spoke to today, • hearins with regard to the Writ of
                        Garnishment has yet to be sebeduled in this matter.

                                OMS is headqllllrtered in Livingston, New Jersey and our firm is located in New York, New
                        York. ln lieu of appearing at the hearing in Houston, we request that the C<lurt accepl the attlicllcd Ust
                        (Exhibit 2) of effects (Msets) whlth belong or may belong to the Defendant, Kenneth C<lo!l"r McAfee,
                        held at GMS. Based upon a diligem review of OMS reeords, these are the only accounts that GMS is
                        aware of. There are oQler accounts which bolong only to the deceased.

                                Until a determination is made by !be Court as to the ownership of these am!S, OMS has placed
                        a freeze on these accounts. Upon receipt of a determina~on by the Court, GMS will release the assets
                        as so Ordered by the Court




     Confidential information may have been redacted from the document in compliance with the Public fnformation Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
                        FAUST OPPENBEIMLLP
                        Sl!Ul Stanart, County Clerk
                        October 23, 2014
                        Page2

                               We appreciate your assistance and please do not hesitate to contact us with any queslions.

                                                                           Very truly yoUI'J,
           0                                                               FAUST OPPENHEIM LLP
           N
           0
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                                                                            B~·--~~-=~-----------
                                                                                Matthew E. Lipman




                        ce: Dean M. Blumrosen, Esq.
                            Charles R. Storer, Esq.
                           Tunothy Donohue, llVP, The OMS Group, LLC




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
            0
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            0
            C1




                                             EXHIBIT 1




       Confidential information may !tave been redacted from t!te document in compliance with the Public Information Act.


  A Certified Copy
  Attest: 9/29!2015
  Stan Stan art, County Clerk
  Harris County, Texas



 ~~=-'"'::-4-=-=·d{_~·
                  -~_Q_Deputy
-'Stirling G. Senechal Ill
                                                                 STAN STANART


           0
                                           ..           COUNTY CL£10(, HARJUS COUNTY, TEXAS
                                                           . PJ?.OBAT!!COURTSDI!PAR.TME!ff

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           0           1HE STA'lll 01' TEXAS                    llOC'!Cl!TNO: l~~l-401                RI!CEIPT NO. CEl\mll!D MAIL
           N
           0           COIJNTY Of HARJUS                        ESTATE OF: JA:Nl!T F. MCI\FEE. DECeASED
           N




                       o...dngs:
                              Wl~M.u, In 11\e l'fobo.. Coull No. 0... (I~ of Ranis County, T..... ln a <Win . - wbm:ln ROSl!MARY
                       AND lAKE FOLTYII, Pl&intifl'.. lolnUy IJld IO'II:I!IIIy, KENNB'lH COOPER MCAFEE, Defendant; 11\e fllintlf& on
                       Ma:n:b :n. lbl4, JQtlln:d a judsznont •plnrt Jaid Oofendmt In lho ll'fl.m.mt or TWO Mlt.LION DOLt.ARS.
                       ($2,000,000.00). phn In"""''Ill!!"""' of"'!~ lw lfllilkcl fur a Writ ofOomltbm<nl ~pinS! )'OU. !he Slid Oamllhtc;

                              Th""fo,., you .,. hmby -mlllded to be ll\d IPpell b<fon: hld eourt at Ho"'""'• in said Coun!)' 1t 10:®
                       o'tlock a.m., on lho Mllll<lay nm foUowlns cq>!mloa ofl\ml!y d>y~ !roll! lite dolo ohmi<D hmof01lten om! U....ID
                       answor upon oalh wha~ lf.all)'lllin~~o you oro indObt:d 10 !he Clld ll0S£MAAY and lAKE FOLTYII, and were, whanll!!o
                       writ wu ""'cd upon )'OU. and whuufferu,lf "'Y• of said KENN6'lH COOPER MCAFB! )'011 hAve In )'OUT _...~oo,
                       •nd had wbcnlhls wrilwu """don you, ..d whol elhor- lf l!IJI, whhln your tnowl<dgo,"" indebted"' hid
                       Dofllldm~ "'hAving efT"" belonging lo Dcfi:ndlllt in lhoirl""""loo, llt!!On.lhls Writ WP ..,.cd,




                              You.,. hereby notified lhtt<<111ln pr<>P<rti« tllc0od to bo owned by you have bc<li -W.od. lfyau claim liiJI
                       rig hiS In Mh proper!)', you U. odvbd:

                                     "'-You ban tt.e rlgbt to ftlllo poau~io'D or the pt"'ptrty b)' nunc 1 Roplovy Bond. Yoa
                                     hut. a rl&AI lO letk to rt'lllll poutuiOll or the property by nllaJ wUb the eourt 1
                                     Motfoa lo 41Rotve rldr Writ"




                                                      P.O. B,;. l$l.!O   !!•"""' TX77lli·ISllO (71l)?ll-<142S
                                                                           www-.ttltfk.bttl,net
                                                                                                                         P~lcfl




     Confidential information may have been redacted from the document in compliance with the Public Jnfol'mation Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



AA4____o
      Starling G Sanechar 111
                                                               Deputy
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      Confidential information may have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas



./lt:r~J~
    Sterling l.:t Sanactlallll
                                                                         Deputy
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                                   HOIJSTDN, TI!XAS 77f127
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                                                            www.tdctk.hc:a.ntt




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



A.A~Sterling G. Senechal Ill
                                                 Deputy
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     Confidential information may have been redacted from the document In compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas




      starling G. Sanechar Ill
           Ill
           0
           (!')
           0                                                                                     PROBATE COURT 1
                             OM
           1).
                            JANET F. MCAFEE, DECEASED                      39693>401
           0                                                        NO. _ _ __
           ~i
                                  ROSEMARY I!'OLTYN,lndivldually§                    IN THE 1'):\0BATE COURT
                                  ANDJAKEFOLTYN,Iadlvlduafly§                                       ONE
           '::1'                          Plalllllffs       §
                                                            §
           0                                                §
           N                                                §
           c                                                §
                                                            §                                        OF
           N
                                                            §
                                  vs.                       §
                                                            §
                                  THE OMS GROUP, L.L.C. AND §
                                  WOODFORli:ST NATIONAL     §
                                  BANK                      §                        liAl!RIS COtiNTY, TEXAS
                                          Defendanr:s                                       1 PER WRIT BV CERTIFIED MAILED
                                              APPLICATION FOR WRlT OF GARNJSBMENT1 PER WRIT11!1 b-1                          p)f'
                                                                                                             1().!1-2014
                                  TO THE HONORABLE 1UDG!! OF SAID COURT:
                                        COMES NOW, Rosemary and Jilke Foltyn (herelnafu:t referYed 10 ..
                                  ·~obors")      1111<1   milko:< this Appllce.till!l for Writ   ot Oamlsluncnt againSt
                                  Tbe OMS Group, L.L.C., and Woodforest National Baok, (hereinafter

                                  referred to .. "Garnishees") 1111d, in support hereof, Glllllisbora would show

                                  the~ the foUowing:

                                                                             I.

                                         1.    Plalnllm/011mbbor&           ""'    Rosemary        and    Jab   Foltyn



                                  Appl!ca~on !'or Writ of C•mtshmont                                             Pagel




                     ----------------------··-·-·-·




     Conlidcntial information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
          m
          0
          cry
          0
          (l.

                                       2,      Defendanll0611llshee, The OMS Group, L.L.C., is a limited

                                !labUlty company doing 'business in TelCliS and may be served by serving its

           ...                  regi:oterod   "'!•n~   via certified mall,   retum   ..-ipt ""!l'est<:d.. Corporation

           0                    Service Company, DIBIA CSC -Lawyers Inca, 211 E. 7"' Sl.reet, Suite 620,
           N
           0                    Austin, TcxM7870l.
           N
                                       3.      DefendllllliOamllhee, Woodforost National Banlt is a privalely

                                held' bank doing busui..s in Toxas and may be served by p<l\IO!lally serving
                                its regisl=d agent, James D. Dn:>ibeibis, 25231 (}rogan's Mill !U>ad, So ito

                                !00, The Woodlands, Tw 7138ll.


                                       4.      Venue ls appropriate ln            Harm   County,   TCX~~S   b,..,ause the

                                Judpenl was rondered in Hwrls County, Texas,

                                                                             n.
                                       5,      On or about March 21,20 I4, thls C<Jurt, in case number 396,935·
                                401 al)'led Rmemary Fo/ry"- Jnr!Mdually lmli tU independent Arlmlnl!trarrix

                                aftheEsl<!le a/J!111et Fafryn McAfee, Dec<aJea; and Jake Faltyn,lnr!Mdua/1)1

                                v. KeMelh Cooper McAfee entered • Judgmentl!j!llin:ot O.fendllllt. Kermeth

                                Caape McAfee in the emount ofS2,000,0UO.UO, p11lll pre and poi! judgment
                                interest, plus costs of Cowt ("Judgment"). A true and correct copy of the


                                Application lor Writ of Gamtshm<nt                                                 Pagel




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Cleric
Harris County, Texas
          0
          1!1
          0
          0.
          0                     Judgment b l!ltllclJed hmto ., Bxhlbit "A" and incorporated herein by

           ~·                   reference lllr e.ll pwpo= This Judgment Is just, due, unpaid, end remains

                                unsotlsfied.
                                                                       m.
                                      6.       To the best of   ~sbm'         knowledge, lhe debtor, Kenneth

                                Cooper M<:A/'<Ie does ool po5Sess properry in T~ eub]ect to cx~Uon tbal
                                l• oufficient to ootiofY the ebove-described claim. Pholnlitrs seNed post·

                                judgmtl\1 discovery on Mr. McAfee on April 2!, 2014. O.fc:odant did not

                                produce any docu:menta establishing his owne11hlp of properry in T<Xos

                                sufficient to "'llsfY the judgment l!Sllinst him.

                                                                       rv.
                                       7.      Oarnlsho11 have toason to believe, end do believe, lbat

                                Garnishees, The OMS Group, L.L.C, and Woodforesl National Bank, may be

                                indebted to Kenn•rh Cooper McAfee by mu!ntalnlng or holding one or men:

                                bank aeeounts. Gunilhon believe Kemeth Cooper McAfoe's SO<>ial se<:Utily

                                number to be 4S4-8l·:X:X:XX. Oamishm ,..e not seel<ing to U:ijun: or hsrass

                                the Gamloh<cs or the Iudjpnont Debtor by sending out a Writ ofGunlshment.
                                                                                                                    I
                                Rlllher, Garnlahore l!le IIU<mlpling to c<>llect on a Judgment. Garnlsbo11
                                                                                                                    I
                                request that ifClom!shees, The OMS Group, L.L.C.,lll!d Woodllmst National
                                                                                                                    r
                                                                                                                    l
                                Appllcatlon lorWrtt of Garnishment                                     Pagl3




     Confidential information may have been redacted from the document ln compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



                                                      Deputy
           ...('1
           0
           l1
           0                    Bonk are Indebted !0 Kenneth Cooper McAfee by any ac<:ounl or olherwisc,
           tt'l
                                that Oarnishce$ hold and allow Oarnishor.l tn garnish ssld belongi!'S)I.

                                O&rnlshors also rcqu..t thilllf Garnishee:! hold poHe"lons in a !Siecy dcposll
           ...                  box at any bra:nch that Garnishee:$ hold and allow OamlshOTS to gamish ssld
           0
           ('.!
                                belongings as permitwl by Jaw.
           0
           N                                                          v.
                                      8.     Thla Application is supp<med by the Affidavit of Dean M.

                                BlWlli'Osen Bttached hereto as Bxhlbit "13" and incol"jlQnled t.Wo by,



                                      WHEREFOR!!, PRI!MISES CONSIDBRBD, Rosemary and Joke

                                Foltyn, request that a Writ of Garnishment be issued as above dc><!libed and

                                1lmt Oamlshors have Judgmontln partially satisfy the c!oim above-meationed

                                as provided by law, togcthar with all costs of C<lwt Incurred in this
                                proceedings, and other sud! !ll!ief\0 which Onmlshor.l may be j1ls1ly entitled.




                                Appllcntlon lor Writ o/Cam!Jhment                                        Pogo4




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



                                                      Deputy
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          '"
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                                   AppUcotion [or Writ ofCarnbbm!!'nt               PogeS




                       ·----------------------·--




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



A-<~d
   G.
      ._a
     Sterling       Senechal II!
                                                        Deputy
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                                      EXHIBIT A




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
           t")
           0
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           ,,0
                                    ROSEMARV J'OLT'Ili,I.. ITt~..lll'        §       IN'IHE~ROliATli:COTJllTONlt
                                    """ .. 10\d•l"ftlltnt /<41n<Aimotrll•l<hef
                                    Elttu or J10ct 'folt}11 M~ »-..na:tr §
                                    A/fllJ!JCU'OLTY!I,ho<llvldHI!r           §
           0                                        J'laJtltlj'ft             '
                                                                              I
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           0                                                                  §
           N                        vs.                                       t
                                    XENH!:l'H COO:r-at MCAPU                  ~
                                                    /HI,.dMt                  §      IW!Rl5 COUNTY, TIIXI.S




                                          On !hi• doy tho C<Nn """'ld<>!<d !he Plaintiffs' Setond Amendod

                                    Motion for Summary ~udpenton Pl•lnrim wrongi\11 doalh o!alm. Tho
                                    C<>url, oJ\c:r considering 1ht pleadlnp, !he motion, the respo!Ue,lhny,

                                    and thcOtEU"""'ts of """'''"'• is ofU.. opinion that rho Plolnlilf•'
                                    S<cand Amendtd Mollon for Sumntar)> l~dptnt lo h,mbr
                                    ORAN'I'.lm.       DoftndOII~ Kcnl1e!h Coo!"" MoAIU b      liable to U..
                                    Individual PWnd!!i for ..,.ing tho doalh oflheit daugbrer, ~en<!

                                    M<Afco.
                                            ORD!!Rl!D, ADJUDG!ID il!d Dl!CIU!!ID thai PWnlllf, Rosemary

                                    Foltyn, Individually, recover €!9tn Dcfbndan~ Kcnnc1h C<lo!"" MeAf.., oJ\c:r
                                    ell   off•<~>   ..d credits, jlldsJneot In !he .lll!Ount of S!,OOO,OOO.OO. !Or hot




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
                                   Clllodohal pein and>uffttlng duo 10 the dcelh o!h<r dsughkr,l..,.! MoM...

                                   It is l'unl!r:r, OROEIU!D, ADllJllOEO .,d Ol!CR.BllO !llll1 Plaln!ifi', lll:e
                                 · Foltyn, lndlvl<lll41!y, recovct fnim.Doandant,!Conn<tb Cooper MoAfe<, after
                                   all offset. and mdl<>, judgment In !he Olllount of Sl,OOO.OOO.OO, tor      b~
          0
          N                        omotk>nal pain and su(!'<dng duoiD the dea!b ofh!J doughter, Jllll<t MeA{...
          0
          N                        nw judgmOli! ohaU """'1)0tog<tbcr wilh lnl""'t theroon lllthc raiD of5% per
                                   wnun fi<>m lbo dil< Ulls IUb WI!J !lied on Pci:>romY 23, 2011, unllllho t!llll
                                   orjudgmco~ poll·judgm<ntlnlmll atlb< nto of 5% per annum, Md for ell
                                   ''""" of Cow:t ~ In 1ltb c&Un, for whioll It! e:<t<udoo bsuc. This
                                   lodgmcnlllnllly dlspos,. of all partl" lind lt apJl"'li!ble.
                                                                                                                    I
                                         stONBDthis ~ deyor _                     _.m~~ac&a.d-..o.._    _.. 2014.   I
                                                                                                                    f
                                                                                                                    !
                                                                 NDOf. LOYD WRIOHT
                                                                                                                    I
                                                                                                                    1
                                                                                                                    !
                                                                                                                    f




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



Jf;4df __o                                             Deputy
     Sterling G. Senechal Ill
           ID
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                                        EX.HIBIT B
                                                                                                                    i

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                                                                                                                    I
                                                                                                                    l




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



fl,_dd._.Q
    Sterilng G. Senechal Ill
                                               Deputy
           0
           ~,



                                  STATJlOfTF.XAS

                                  COUNTY Of IWUUS

           0                             DEFORE ME. thtU'ndcrtlgnWoftleid, on lhb dAy,putondl)' llpPOillldbd'orcnw.
           N                      Dtan M. Btum~ who •6u Wins duly 1\I\'Cf'll 1 did depo1:111 and $U11C u follows:
           0
           (\J                                  "'M)'nmR: Js ~M.BlurtVOJm.lammerll )'elrtoh.ac-.ohoumimind,
                                                ha"" ne~ ~       coarinud or a fofo:ty •rW om etpllhk: of mUinc thU




                                                Ounlstumnl.

                                         ),     "l ht¥t ptrson.tl kaowlcdaeo(Jhe fam:as rrated In Oam!Jtmrs• Applli:Mion
                                                for Writ ot Oamlshment Uld they ere~..,., <O<m11'7




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
          Ill
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                                SfAA StAIIAlf
                                COUN!Y~!WIRISC<>J!IIY
                                                                                             ........ ·' ......   ~




                                ron oma ao• 1m · ·
                                HOOilON. mwmsH,..




                    -------------·····~·-------·




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
          m



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                                          EXHIBIT 2




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
          0
          N
          (")
          0
          1).

          0
          iii




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
           N
           (1l
           0                                             ~lllllllliiXY   Am>ual Report
           0.
                                                                          for
           0
           1'1                                  TilE GMS GR01JP L!..C SALARY SAVINGS PLAN

                             This is a O\lllllllary of the annual report for the TilE GMS GROUP
                             LLC SALlll\Y S~VXNGS PLII.li, (Employer Idetxtification No,
                                22·3505264, Plan No. 051) for the period January 1, 2013 to
                               Deceml;>er 3l, 201<1. 'l'ha tumual report has· l>een fi;tei! With th<il
           0        •:··    ,,j;:,Qployee Benefits 81\o>p:iby Adlo1Zlistnti.oll.,. as riilqu.~~! \Wa•r
           N
           0
                    .·-<'    .:;t.l):•H\'!IDPl<>!{Ge RetireiU&ilt Income Seour:l.ty Aat. <>f :1:974 '('i!!U.SA?.
           N                                          BAS:tC PINIINCIAl. STA'l'IDIBN'I'

                             senefi ts under the plan are provided by a trust (benefi te are
                             J>rovided in whole from trust funds) • Plan expenses were
                              $948,504. These expenses included $946,504 in benefits paid
                              to participants and beneficiaries. A total of 198 persons
                             we"e participants in or benefioisrieB of the plAn at tbe end
                              of the plan yea>', although not all of these pe'rsoile had. )let
                            ·.·~ariled the right to reaeive benefits.

                             :ir'ne ;'vaJ:ue .i:>f plan IID!'iits, after ~Ubt:ra:otfng>'}ill.bil:i't;l,el\; S~ tolls
                            '·'plu.; 'o1iie'.l~:i,a53,:2ia'· ·as of' Xleoell\ber 3:1, ZOt!f eomparetl·ceo· · ·
                                  s20,J80,393 as of January 1, 201!. Duri~g the' plan year the
                                  plan experienced an increase in its net assets of $2,972,820~
                                  Thi& increaee includes unrealized appreciation or depreciation
                                  in the value of pla:D assets 1 that is, thG difference between
                                  the value of the plan • s assets at the end of the year and the
                                  value of the aosetB at tho begilli1ing of the year, o:r the eoet
                                  of aaaet•· acquired dudn!J the year. The plsn had tot.al income
                                  ;:>f, ii;!,9'U,32.4,, l,nJ:>lUd.~Ag empl,ayer contributions .of.. $:_~9)~/)0 1.•.
                                   e111pl;oyee contribution$ of $1.~63;191, galonii ·of $U3;4.76 ·f~:om··
                      '·,: . '.~ J::he i>au of usets and· earnings from inveotnieots of
                 ·;; ... , '" ;'$~~~74,85'1.
                 ··z
                                                YODR RIGHTS TO ADDITIONAl. INFORMATION,
                                                    reedve a eopy of the full annual
                              l:"o\1 have the right to
                              report, or any part thereof, ""request. The items listed
                              below are iocluded in that report:
                                          Ail   accountant • s report' aud
                                          A$ sets   held' for investll!aDt.




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas




      Sterling G. Senechal Ill
           N                                                                      .:-   ·;,-•
           N
           (')
           0              To obtain a copy of the full annual report, or any part
           c.             thereof, write or call the office of

           0                   Mr. Jerry Korn
           :li                 5N Regent Street, Suite 513
           ....                r..ivingaton, NJ 07039
                             You also have the· dqht to rec<!iva from the plan
                          · catlmil')iis:t:notqr, Ofl. ;eqJieQ~ and at no oh<e:ge, a,,!Jtaj:eme'!t. o,f tha
           "!           · ·.""al'e!:-JJ:.'al)i:I: ;l~l;!.~ea :!?.f the plan ~d acilCijnP~IV'ItOJ;Iis:, ti.t' '·
                            ·a li!tatellll!nt of tneomk"'!id ~~~'"' of· tho. p;t'lln ··1:1no:
           0                 acc6mpanyin;r notes, or both. If you request a copy of the
           N                 full annual report from the plan administrator, these two
           0                 statements and acOOillllanyiuo uoteo will be iucluded ao part of
           N
           ,..               that report, These porti<me of the report are furnished
                             without charge.
                           You also have the legally px:otected x:ight to examine the
                           annual report at the maiu officii of the plan<

                               ~~~n:~:~;.,~t~~!'t.b 7~~;te S13
                           and at the u.s. Department of uabor in Washingtou, D.C., or to
                           obtain A copy from the !I. s. Department of Labor upon payment
                           of copying costa. Requests to the oapartr>ent should be
                           addr,.ssed to: u.s. Depnrtmant of Labor. Employee Benefit•
                           Seoux:ity Administration, Public Diaclosure Room, 200
                           Constitution Avenue, Nil, Suite N-1513, Washington, D.c.
                           20210.




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9129/2015
Stan Stanart, County Clerk
Harris County, Texas
                                                                                            :f{~· ·:
                                                                   TheGI.ISOtouo&~~·;....
                                                                           I<ENNrnl MCAFEE
                                                             f01 rN. Twetvv Mor'ltl'ts Enditog Oe~bet 31. 20t3




                                                                              ASSETS
                                FED£AA'!l';D<W'IJACRl!SERWa

                                TOTAL. CA.qH AN1l MON£Y MARKET l'l!NDS
                                PUTNAM EOUI'fY INCOMe FUND


                                'COT,\L ,\!u'TIIA~ fi!N!IS


                                                                                                                   ""1·"'
                                                                                                                 1,,~1,!)$
                                                                                                                 ••~50:30
                                                                                                                 ~196;i(O-:
                                                                                                                   003,75-


                                TOTAL $1'0CKS




                                                             I'AR11CirM'iTS ACCOUNT BALANCE
                        2130    PAR'l1CIPANT ACCO\JNT GALANCE·E~                                                                      m.sro.$<
                        2150    't'TO NET INCREASE. IN. ACCOUNT                                                                         7.6&1.!>1)

                                T01'AL PAR11ClPANTS ACCOUNT DAUI'ICES                                                                ll0,l5!.59
                                                                                                                              ~~~~



                                                                                                                              ----·--
                                                                                                                              '      nt),l5J~···
                                                                                                                              ~,.,...,..~.,'i'~




                                     ACCOUN1: CHANGE WAS TB.E RESULT OF TiiE FOLLOWING:

                        :1010   UHREi\1.12£0 AniUI)TMF.NT TO MKT                                                 7.310.65
                        3070    011110~/ID INCOME                                                                  :rtO.<ll

                                                                                                            ·. .:f,~I!MS
                                                                                                   -llf:Cillb:--~




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
                     ;i
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                                                    SuMMARY PlAN DESC!!Jl'TlON
                                                                  ro&.
                                            THE GMS Oll.OUP,. Li!...C. SAI..A:RY SAviNGs PLAN




                                                                                            Decemb¢r, 2010




                                                                                           -·   ----·-·---------




         Confidential information may have been redacted from the document in compliance with the Public Information Act.


    A Certified Copy
    Attest: 9/2912015
    Stan Stanart, County Clerk
    Harris County, Texas



,...,.~.~~·
•
          r-=:-=A~·'L~. . D~.
       Sterling G. Senechal Ill
                                        _.Deputy
                  "'f
           1:1
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           ('l
           0                                                          'f ARL!l OF CQNTllNTS
           0.
           0               INmODUCTlOII ................................................................... 1
           l:'l
                           l,     Pl)f.I.•PliOJill,B ............. , .. , ............ , ............................... , . 2

                           2.     TRUST AND T!l.USTEP.S ,. ....... , ........... ., ...... , : • •.. . .. .. .. .. • .. .. • .. .. 2
           "J
                           J.     IIDM!N!STilJ\T!ONOFTIIEP!.AN ............................................. l
           0
           N               4.     ELIGIBILITY FOR PARTICIPATION ...................... , ..................... 2
           0
           (IJ             5.     S!!IW!C§ WITH TilE COM!! ANY ............................................... l

           ....            6.     CONTR!BlJTIQNS . .. .. . .. .. • .. .. .. .. .. . .. .. .. .. .. . .. . .. .. • .. .. .. .. .. .. . .. • .. )

                           7.     Wll1!PRAWALS ............................................................ s
                           n.     RETIRPJ!!.F.NT I!!'NltFifS .. • .. ............................................... 6

                           9.     pEATil BENilF!TI ......................................................... 7

                           10.    Q!fu\lllLff\'BmfflfiTS .............. , ........................................ 1

                           lt.    QI!FHRI!!jD R\!TU!J!M1!!fl' • .. .. .. • .. .. • .. • .. .. • .. .. • .. .. .. .. .. .. . .. .. • .. • . .. .. 1

                           ll.    TEJIM!NAT!ON Ol'EMl'Ul'IMENJ; ............................................ 7

                           U.     l!LRl!!WAT!Oll MID AMENDMENT OF!'LA,N ................................... 7

                           14.    INFORMATION ABOU1;:l]E.~ ...

                           IS.    LOANS TO PARTICIPANTS ......

                           16.    ROLLOVERS 01\ TRANSfERS ........................................ , ........ 8

                           i7.    PARTIC!PAWSMANAOJIME!'!!Al..):Q!JNTS .................... ; .............. 9

                           Ill.   DOMllSTICREI,A'lJ®-ORDEl!S .............................. i .............. 9

                           !9.    Cl,A!MS PROCEDURES • .. . .. .. .. . .. .. .. .. • • .. .. . .. .. . .. . .. • •• • .. .. . .. • .. .. .. . 9

                           !0.    PAI1.TlCl11ANTS'Rtr:i!!TS .................................................... IU

                           21.    PLA~TEKMrNATION'!NSURANC§                     ........................................... II

                           22.    MILITARY SERVICB ........................................................ ll




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



                                                            Deputy
           (iJ
           N
           ti"J
           0
           c.
                                                                          lNTllODUCTJON
           0
           ui
           ...              A 40!(1<) S.vb>ii> Pbn C"Pian'l wu "'"'bli,~ed fut <li8iblc cmployccs off«:u\'0 Jonullt)' !, 19S4. lt l!>s
                            ~tn amelllkd and ~:~ltd to cumply \\t\tb the finaf provisinnx ~nd cff«1ivc d.:!tcs of tlt.: Eeonomk Grawth
                            :md ·ra~ RdidR¢eOll!.::lUalion Ac::t of lUU. ("I!OTRkA") end the prO\Iisiom o(th¢ Jub Crcutlon nnd W-orker
           '<!              /Wist> no:.: Act of200Z ~·JeW A.~ "l.

           0                11\!a Sutnlnluy tlimi1h,. )W wilh • descnplioo oflb• PIAn and tb< b<n•li"' providt<llhcrcu>•d<r. Tho ~ion
           N                ti;phi..inio a <llb,Wulolon4lm;.ortlllll finoncbl program. The .. I'OI:<, yo.,re"'1!,Cd "' ,..i!.tli SM!l\l!ny
           0               ·.~illy ~~<jJlt k!!R i! lqr ~.,_,re(mnct.
           N                The cillltit>uatfdU.oilhls Plan is biiSCd upon tb< c:ondlti<m lh•t the Plan is itpproved and ~ualifiod und¢1 the
                            fntcmll) Rc\"Cnt.W Code (..Code")and reguJationll thucunder, sons to pmnit «n!IJibuticns made und~:T tht
                            Phm t~, be dl-du~W1>fe ror FeUcrnl inconw- tu pwpo!e~.

                            7105 SUMMARY 0\!TLINES Ttlll WOI\K!NtlS ()f THij Pf~'IN ~NO IS NOT INTENDED TO
                            RESTAT1!1HO'fERMSOFT!lijPJ.I\N, THF. RIGHTS OF PARTIC:Il'A!ITS UNDER nlnPLAN'WlLL
                            flE OF.TEIL\iiNF.D SOLP.LY SY THE PROVlS!ONS OF THF. ~LAN OOCUMI!N1. ll' THI!ll~ IS A
                            CONl'LII::-rer:TWR!!NTiliSSUMMARY ANDn-IEP(AN, THENTHETE!tN!SOPTI!l!PLANWltt
                            <lOVl!RN.

                            A <mpy oflhe Pl•nllo<umo:ll, wl>i~111esnUy gov-•HP!sn op<n>riDN,l>OI\nlc•il"cC:o(•pany1 :Thd'.lm
                            "'')' be read d<uics oorm<~l woridlll! h011rt by oontae~!ng Ill• """""' .Rtloui= o""',tini<!if i>t; !lie
                            C.omp:my•s ti\lingstnn otlice.




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
                                I.

                                NAME Of PLAN:                      TilE OMS ORO\JP, L.l..C. SA !.All.Y SA VJNGS PLAN




                                PLAN SER!AL NO.:                   Oil I
          ,..<;!
          c                     PLIN ADMINISTRATOR;                THE OMS GROUP, L.L.C.
                                                                   .S Nurth RcJS,Onl Str«~t~ Suite: 5ll
          N
          0                                                        Uvinplon. N1 07039
          N                                                        9'll-l35·5QO<l

                                ANNIVERSAJtY DATE:                 D«<ml>orllst

                                N..ANY8AR:                         Forpurposc<of llllliQlaitilils tho Pion~ ~~~ •lid olho.r ~otd!,:ll>• PI"' ·
                                                                   Yeurit a 12·monUi period. C:nding"on the alion t\hh.i~cnraty PAte~


                                l,       1'RUS7" AND TRUSrEES

                                         A Trust hu bect~ t'W~:htfithed to fCCd ..>t CQnlribu!innA mfl.d.e uudl!r the Plan. Al the titTtt lbiJ
                                SummAry w.;u prepar.ed. ihe Collowing fndividUllft w~re :~erving as lhc TNStO'Cfi ofttw Trusr.

                                                 l:!bMll                                     ll!lJi!NESS 1\l!DllJ!l!S

                                                 Jl!AAY KOliN                                S llonh l!egtor Stre<; 'Suit• 513
                                                 TIMotHY J:DeNoalll!                         Lirln!!!tOl!, Nr07llJ~ '




                                3.       ~DMfNISTM110N (!P           Tlf(! PLAN

                                           The Plan At\ministntlut wm e:dm.inU\~r tbe Pitm and wUt be teqlonsib1-e. rot k.c~ing th.~ t«<rrds of
                                tl\e JIJan Bud filb\8 an neeessnry S;O\~~t runns. Th~ Trw:tces .nnd tbe I'lan AdministmtGr are dWgtu~ted
                                ss·Agcnt.~t~ for ~O'ice n(lc:gat·prooesll ar Ibe addn:$$C't indicated above.



                                t.       EUG!JllLIU FOil PAR'flC/'P4TfOr.'
                                          Ir)'liU are rnu tummt!y panidpating ln the Plan. if you l;a\-c attn.ilk!d D@.'C" twenry-one (21j und you
                                ate not t1 uniur; Crnploytt of the: Company.:. h:.ou:ed F.:tnploytc ,)rthi! Co!npany or 11 noo-resitkntalkn. you
                                will be tli&ib~e to become n hrtil!ip:ant on the F.nuy Dare (l.lto first d:~yuC JtnWtry, April. July nnd Octobet
                                of CtJ.it yell!) following the dele you comph:tc th 16) toomhs oC tt~!ltinuous service !ith theCO!llD;MY·



                   ·.:   .. ·




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/2912015
Stan Stanart, County Clerk
1-Jarris County, Texas
          ,,
          11'1
                                     Oeno;mlly.. n: Yet~r orSetvi« mcuns n h\'t'fve (l2) month period in wbicb you hnw: completed om
                           thuu.'\acd (1,000) hours or service. An llOUr oCucyic¢        .man           mtM c~ hour far wbiclt an employee b
                           directly or indi~ly pn.ld, or ondtJcd to p~tyment, for 1ho pcrform.sna: of duties and for re&lSOtll other than
                           fOr the peri*orm;mce ot duties. For e.~iuttph:, the tc:rm hour of lt:Nice will inehltk re:gu1ar dme, overtimt,
                           vac.n.rions. holidAys. ,ie,k.ne.s:&. dt.J:abitity, lliJ"''fi', h:atk rmY and similar pay periods.

          ,,
           N
                             -     Focpurpcma(MEmpiO~'•~Io<OilllllfnC<iportic:ip.tiiod•:fh<Pinn,!ix(G)..,.tbaor
                           cootiouOWI '""'"" wiilllhe Company abo II bo cr<dltcd !!om yourdm Oflil"' b)< 11>0 ~.

           0
           N               t;;·       . WN'iRtiicrriof{s.
                                       (<)    EW'f,OYEE DEF!i/IJULS

                                     When you ~come ;1 Ptulicip3nt in lhec Plan, Y\fU mma a.4o aulborlt.e the amount ufyour Bn.lary you
                           wish to ~::fer~ o. contribution to lhe PJcn. 'T'be:3c contn'bU1ion$1.1fe whatcvor pol1ion o( your compensation
                           you cboos:!l:l to defer up k.! n mu.llimwn of Udy (SO%) pt:recnl of ynurCompe,rwuioll (but Jnno evt:l\1 !hall
                           your 401(k) s~huy def~al c;o.ninlrntion in a ce.ltndllr yt:ar cx.::ced .si~lem Tht'1UUJ1d·Yivt Hu.~~1
                           ($16',S00) Pollnrs t'..-.1010 all!l20ll'). 'lli<·Compa!'J', stits·di$cte!!qo,mAY1"'1i<!scll,!oWOr'.ll'IW;rrum
                           ~u_g•ofC•lJ1PO!U'Uo~ill'\I)'OII,moy!io@nl~'io                                            · · ··- • ·
                           l'till <)I"''""I!IIJ•·your ~i:!cmlf·~-'l!i•' <!O<!l F!lll!.J=
                           iliousl!iid Fiv<!llimdr«! iS l~;sOO)'"Ifi!llirs fm 2010 lirul20! i. lmy
                           II< rcmmed toyounol•l<r!heo April l5lh ofth< followilll:YellrOnd Will b<«mside,.d .. pwt Of )'OUt               Ill.'·
                           able inct\11'1(: rur J.he yenr m wbich the deferrul \\'M made, lt should bt noted th&t 1heso \imit4tions att: subjccl
                           tu Nturo t\liOt-nf..{hing u.dju.si!'Tk'nl! by lbe- Dq:mnmtnr of TrcQSucy.

                                    tryou ""' •s• filly (lO) or older or lh•ll•l"'in the age or filly (SO) before !be llJi day oflh•l'l••

                           tilher rn• l"T"<:tl!OS• or tile dolle<ulni!l me11db0«! •bo\'o. Ifyou. will or hove a~aln«<     lhl>.
                           YOI\r, yoU may btl endll<d to make odi!idonoi40I(k) sallltY def•rrnl coolrlbullons to 1ht Plan ovc<~~nd llboV<
                                                                                                                              of. 61\:y (SO)
                           l>ctlmotb<l•!l·'!'JYo!il>OPI•nY""!•l'®•"'<l!i!lblotomm4l)l(J<)~:dof~9'"-1-".<41l:h,Ufi~o~ltibiltiO~"
                           10 <llo PIM 111. th< Rmoi!01.offl"' Tho<ISOn<l Ftvolj'llll<k'!'f($S.~OOYDollllfHor.fho 20!P oitll;lOH: CJI.Onilct
                           >''"'"'· Th«<limitolionil"• Suti]c<t 1o iutt.re.:osl<~l'lil>ills odjustmebro by !be ~of.~.
                                  tryou m cUI!Il>i< nnd • .-. ini<T.,.tcd in tru~kiug 40 !(l<j ..tny clefem.l<>toh--llP<On!ri'liulions, Pl""'•
                           eonmtt fhtl Pi)n AdminisuAtor.

                                    'four 401{k) ~lory lh~fmn1 ronlribu!it'lns. IO tbt Plan will bC' wilhltelt.l from tbo COlt!peiU&don
                           othr-.nvise pa.ynhrc to you by 1be Compe.uy. Von m~:y cha~~ the amount to be defe-rred bf filing 11 special
                           •·Ubholdmg chang< form l'lilb llle Pion Admini<tr110r 11m t HI) di>)ll' or ""'h olhot timo t><ri<><l d<clmd by
                           tba Phta Administrator, befon: 'lll\Y wiUlhoWfog c:!bns,e dl!lto (jhc fin:t dAy of Janu:.ncy, ApriJ1 Ju1y and
                           Ottl>ber of each yevr).

                                                                                                                                AdminisfC¥1\lf'
                                                                                                                                mt'dly~t)tn.

                           $'11$pend  wiibbahllnt authnritntinn. you Ny elect to resume 401()) s;ll:l!)' deferml contribuUons at any
                           Entry Date {tbc firJt day of JonU;tl}', April, Jui)l and Oc\Obcr of c.cc:h year).. by notif"yinslhe Plllll Admiu-
                           istmtor ill \Vl'iting nt l¢a.it ten (10) dJ:Iys or such other time ['K:riod rk!!WC'd by tbt Pbtn Admlt;Ut:ator, prior
                           to the tiC."tt Enuy U:ue for whi'h 1M tlcetion (0 rc.5ume suluty dcfcrmJ oonfribtllions U. to be eO"eellve,




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



                                                             Deputy
                                     In accordance. \\itb th~ fk:pAruneol of Ubor•s requircmenU. 4:0l(k} saJary dc:ferrat fl:onttihut.iOnl
                             madt- by yon wiJI bt f'l1'\'l·::uded ro lh~ Trusl"s for investment t.Ui proorprly as pouibft- after lhey bavc been
                             withh¢ld lind crediu:d 10 l'OUt :t:t.lary t.ltJCrniltt~Owt\ und¢r the Plan.

                                     The Code pi~ a lin1iLoo the MlOUUl of 40t(k) &DluydcrcrrAI contribution' which nay be m2dc
                            in nn)' ooo Plan. Yut byl\lt!hl1 ccmpe.,.tcd l!"fliciP>nl<. lf)'Oilnl< affected, )l(lU wiU be n<h>ised of dlt'
                             iimirtn1 -efl'celh'M'cllclrf!UmYarandiUJ)'EimoWtllC011tributtdtoyours:Waij'~~aecount.wiJI.bQa.dju$.t·
                               .nl m:«mllnply. Ally,~ d<fcm:illn ..ccuorlhu!,U!I>Utbcd limitswl!lbOrelll;n"'!f!>.""'.with11tf\'/o
                        . •C:hnd on<:J1>!£t"\7)moolhonftiot'me'<)ldoftho Pl.., Year oru!,willbcoon~'tiol<Ohle~e ft>t'llie~ ·
                        . : •\;>Jni,inrh 'ihc ti<f..i.i'wu<MdO. lfyou haVl: A! mined Ill<: "lrgc ofli1\y(50) oil<! ~.Onofnikil<: (Ol(k) ~
                                VJl cc1n\ribu1ionsto: lhe P\w. yo\t IV'llt bo eUgiblt toha~ the exc:~u deferruts reelNsiflcd as 40 J{I;') catch-trp
           "
           N
           0
           N
                             contdbutitmJ:so rfu:IJ tbe)' moyrc:roain irt lhc Phtn.

                                     You will b¢ contidered h)&hly cnmperuuncd ifcr MY t\fl'lol!                   duri~t£ the Ptun   Ycnr or the: prece:rlinl\
                             Plnn Yt:Mr you ttro:             ·

                                                  "'l!n>plo)!CC •vllodutiJla th• Plnn y.., orptcceding Pllln Yoatawned mo<e.tttM H••tS%)
                                                  P'"':tnl oflbc Company, orpns...,<d 1110« tilltn llli<>(S%Jjl0m:ntof.tb«l<>llll YllllllJIPowlll'
                                                  o(tbc Com-pany;

                                                 an l!mplo)'t'C wbo dulillp.tlu: ~Plan Year hod ••iul•(Comf'!'~l! .lf<iin !f>~
                                                 Complll)'on ot'"iend'.oryoarha.!io in.:xew ofOne Hundred and'!'.. Tho~s..,d (Sl IMOO}
                                                 oOUnrs rnrCon~nsotinn corned in 1.009. 2010 Rttd in lOt t forlbt ~or pcdnrm.in~
                                                 lhcdb-crimin:~tiontesrtuA .tel fttrthurnier S«tiotu4QI{k)lll'kl411l{m}onhe Code~ was
                                                 llM<IAg the top ru1hl tw·enty flQI'I'i!) ['lt'l"eCnf or -Mif empf(I)I~Q,




                                       (IIJ       liMf[.(}){ljJc CQ/IIt/UBYTI0/1'!1'

                                         • II) Mii.WI!i~~rlli!!lr!!!!·lf1•"'..,.,....l>rl<!hrppli!Y.co (....ll<.~il.~~iowi
                             alld you""' cmpfll)'lid mdhc,lir d•y•of 111< Plan y..t,u.. C011lptt)Y ...y'oli<:t·iu'!lllilie II mmeh!ng
                            ~ontdbutilln to d~ Pt.ln on your bdialf.
                                                                 M:\tehingt':ompll.n)J Cnntribuiion sh:dl be calc:olatd sepM~tel)1 for
                            e~ch payf1)11 puiod dt~tinl! the Pbn YeN nnd sheJl bo cquol ru up to fifty (.SO%) pc«Lml of tht fir:n ten
                            {J(r..;.) rcrccnt nrynur !!1"1JU~fb1'lli{ln COrtUibllftd [0 lllc: PJ!ln #~ 401(k)iaJary deftO'llf CUtlltibuduns.

                                                  fiJJ !Mr..~.JY.~tncddil.iNI,tMCompanymuymal:eadditionat
                            discrcriorwry profit sharing cantribttdons to the Plan ba$l:d un d1e Compmfs vaf•lrmanu dutillg that yw.
                            Thel<: ad;Jition!!l di.K!<Ilru\ary ""'"l"'"Y '"n\ribudon.,l!!!J:t, ihllll be ailocatcd based upon i!le proponion
                            llwl.)l(lur <lll;ible COO>p<asllllon been to tlle ellgi&lc ecinpensallou of all ottht l'lan~ Pollfci)l<tnl>,

                                       'lOll ""!Slb<.Cflll'lo,l"~ on,lhcJ.,t day pf\hl: ~Inn 'lcllt al><l·~a~ <O!!>J>l~~ a.Yt;or of.~\:o
                           · ~dng!h'ePlM:YilJirtO'i>o.,tiutdi.\sli•relnnliyCoti>p..yllll<n:~fit . ..Jtili:ianll'ltluiiott'f~filuil·
                             je!f.• tn~6dhi00, if)'l.)ll ferminatoyourt.:mployuttntduring lhe PJaifVburdV!: tu Z~ttAinmcntor'yot.ir n~l
                            rc:tirt~nt Uj,'l.!, de~ib l)f di!ll.ibility. )'()!) wiU $-l!:SI"C   in tltc Ctm\ribulicn fur tbal~t t'e,!Prd)t:$S ofyOU!' d~te or
                            t~nmnutimt.




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/2912015
Stan Stanart, County Clerk
Harris County, Texas
                                   I'or pprJlOS"" of !his-Pbln "»lirl<d employeo" IIWJ """"'lUI)' noo.Jrighly <qp>P<'l>;lt<d <tnplo~~·
                            {Sceddlmtion'<llblg~ircoinp<ns.lllH-lo)'OC-ii>Secllon6o)·wti... co'i"''.~Yl¢·1idllf~"!,C'<l!"P~Y.Ii
                            ultry tnsM.>tf. and !fumt1list<iun1 ovmidtt or othet po.ym~Q:· t«d~d b)' the ~~ ~lii~Jt iaarosed:Qn
                            pr~uoiii>n <•t'lrn:uij,C._rur·~ COmpaoy, doe>nol'pl..,c tM tmploY"O' a:tola! <OmpM>illon:~ the . . .
                            highly eompen:w..s' emphi)'OC'JcwL
                                      The. m:u:inium amoum: o( ecmpt.tt.s:uhm 1hnt fll.ll)' be t:lken into uccoont in detent~iuing ;wdlor
                            aU(tl;atinQ Cntnpo.f'ly .:tJmributions tu tbe Pl;m $halt be: Two Hundred and Forty~F'h-..: Thot1t11nd (Sl4S~000)
          ';)               Dolla~• for tt.. lOIO PIM 'I<'Jf und may b< ll<lji!St«l by the Dtj!irtm<~llofTrcorufY for cosl.qf.llving

          ....              intl<ll5<5). For the ptup<~SCoirnl"'laling .. Empl-'s 401(1<.) Sulury lkf<rrul CtmltibUliwu lo II¢ Pl•n,
                            for a!locntiP@ Employe:t contritmrinns to lbe Pl:m 11nd (or perfonning lbe diGrimioation festt u set forth
          0                 under Sections 40!(k) •nd 40l(m) oflhcCndc, bulnot for, if upplicobl•, ealtu!atlng·1op-be•vy minimum
          N                -~;_")b,utlt>r!•t~tlllll'l!>n.oam~oo<l>lll!-belirt!ll«ltO OOI~o~cddf!rin¥1~~pcriO<lW)tl)iolhe.
          0                ·pJ>fj;~.fin Woli }1>U ore al'.iillc!fuul!·m ihi'J>j'" Mdli>r clii;lbl<i 'lo-mli!ie ~OI(kj 'Sof•iy JJ<t.mi!
          N                 Conorlbu<lons,<ll'ti!~PlliD.                                                                     ·

                            ?,       ll'lTIW/IAWi!Lf

                                     (a/      !IARD$HIP 11/STRIP(JTIQNS

                                     tfyoubu"te • Uurtl11bipt'!nd a~ lnfttduffl.lru.U to meet nn humcdi!U(; and hca.\.'y linnncia\ Deed tucb
                            o~ tuition JOr post.oseoondaty etfuatiuo (or a dept."Pdtot. fiORn:imbursed ntedlc:ul ~:iCIJ• purehu~ of a
                            prim::uy tcsidt,ll~t. FuriaJ or fim~ ~P,We& fot your s~us", d)~IO,or dq)mid~~ aJW~~ .net~ ttt
                            ,w~nl cvidio!l trOtrt ynur pr.t'bcipabulde-J)CO,: ~r a,mou'ittf to CaveY C.Xpcn$0' to WP.<tir<d~s;·lt JP:;~r
                         . r<iDillMl r..tdet><;> wniob, '"~'<"""""'u!tl qtt<il.ift   r.,_.euuqlty J..,~&.-iiUC!i<ll'l!i!der 1l<o•i•~:~.{i,f:?fc'!b< ·
                          ··Cilde-{dc<mn!ile<l wllliorrt-~lo w!i<th«•<he·loss-. ""''(IO%):~'o()'ou~iidj..sii;ll'il0st
                            lneomc}; you "'"Y 11:qlll::lt in wrin~g 1o <II< Pl,.,Adirllnls<nu.,. opprowl ota.l!UdSiiipdlsltilititi<in ti01U tho
                            Pfun in M nmotml not iu exCCI$ or your 40l(J.::) S::~huy do fermi conrributioM lo the l'1:ut, f.antings on your
                            40l(k}llul.nry del'crru1 conlribution m:~.y 1!2! be dbtributi(1n from tbc Phm..,. a Untdsblp distribullon.

                                     In order to qualify fur:~: UR.rdsbip distribution~ )•au mu't re~nt LO tbrt l•l::an Admiuattatru: lltut
                            your i:rumdiate ltravy 6n!lnciD1 n«d canru» ~ rtiievetl 1hmugh liquidation of your flCTJOUI usots.
                            ''"PCllding 40 I(1<) sob!')' doferrul <-ontributiuo•, Gnd ~"'""""''"'"'· l! sbould be notc.l U101 upon •-it>tof
                            >llOh.a Honl.rup dlstribu~on, tb< ufel»>borrulcs oflhcT"""""YR<f!lllo.lloo>tm<i<rSC<:tioi(41ll(J;)oflb•
                            C<idc""!"iteilull-l'O*-bc"'m!l'kdlromll141d~40l(l:)"'11llyd•fmal~odlll~loth~Jtl!li!f<ll'e;~
                            ot~il>. (6) oro.Ua, Th<~<•llir, .Yil\i ma~ lt>cnti:t lb< Plan on <he Om Enity ~·· (!ho tom day or i<lllllu;>;
                            Ap.n, lull' and'Oqobcrof ~·l'Wl id!or tho ~iy sb. (6J monilnv•Pcniion.
                                     tb)       A GS S~ I>ISTRIHtrrlQNS

                                      tf )'OU haw. attained tln! ~~of fifty-nia(l. Md oo.t4udf (:\9!-;). yuu mny requc:st ia 'A'filing that the
                            Plo.n 1\dnlinl:otro~tur apprm<e lltc wifhdruwa1 from lhe.PJan of:ut amount not in CXOlSS ot'your 401(k}:Slllllty
                            defcmtla<rounl in tbe Pl•n (your401(k)sobl}' deft<m! conll'ibwlon iu Ill< Plao •nd thec,.,incs thmon).

                                     (c)       lf'lTHDR.41YAlS AF[l!R NORMIIL RETIRE~fKNT 4GE

                                     Al.lhe d!scrol1ou ol:!bt Pl.,,-A<lminll!nllor;lfyouhove anall<ediJ'Olll'N<"lll;1/
                         . ,_,;--S<IIIo<\lPI<>f!.d,hy'lf><..C•~•.""ec <•tl}' Pfan Y•=t·)'<l\l.tnO)I<'"!~!".'
                           ·:t~ut~h.i; th~ tfu1ttC.d'tO WShimJit: alhu a. paitiun of ,CtrC A~t n&hitlCt:- in \1:'




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
          ,...
          {'1
          i'l
          0                          {JJ      F..Y:CISI! TAXES
          ...                         It libuuld h< nnle<l thnt lite !memal Rl!t'alue Servi« imP<""" • len HiW•) porc<:nt prtmarut<
          0                  distdlmtion <><i>< lOX ott ;ill eatly witl!drowols front all quallf..d plam tllltt arc lnclu<lible in intan\0.
          ~1
                  .,         Aruo'Urlts \b;nt·:u-c nnt mx.cblc ~uu tbcy aro rotied om into an iudiv.iduol reth'emcnt 4COOWll or another
                             qunUiicdplnn>lian not bo l!l!bjcct to lhio ex<iR: tu. s., oub.<eet!on.(crflt1nw.with tup¢1:1 !(l'mandalocy
                             lrt•""'• C, withJi<)hlillgcn dlstribu~ooslh4! ore 1101 dirr:ctly lm!l$fcirol'to woll!ei <jUI!Klled'ttlirem<!!l)ilin
                           . ~~':P~~ivith~}~.fCTilC»t accttuirt.
           '::

           0
           (\/
                                              Disuibution.'l' nltldc on or .1flcr11U.ninment o.f ote lifty·nine ~fld nne-hAif(5911>);
           0
           N                                  Di~tributium,   xu: :t result of !.he- P:u"ticlprun'A: denth;
           !"'
                 :r,•"                        Db1n"butionsJ~:S     a result nf tho Ptlrticipt~lll'r pmnnnevt diubiJlty;

                                              O!tlrlbu5ons (tom fhcl'l>n af\cr yaur ,.Wimllon fbam.R!>icl! !Aalllt'C !"!ir!;t~ fQU ill thO
                       "
                                              Jbrmofst.i»WI\Ilti oqiml periodic~ JbryaurfifirO..m~ll )'Our l<l'6i<lt)'<'rulli:)'or
                                              jointli!lo e$<e!Onoy of yeu ..d YO\If '!'O!iso;
                                              Di!'ttihuiiom whlch ne ti'Uid~to 1\ P:nticipMt::~ller sep1u·::.fion frum .sl:'rviW. nl14r onaJmnent
                                              of aga C'aOy-iiw {SS), nn nccm.mt of e.:tfl)' mire"nrc:nt;

                                              PiD:tributions rtom 1be PJau ~tittletf witbtne.dic:11J ~xpenscs to the extent tb1U l.hc:drpeme$
                                              t~«cd   seven !Utd uue·hatf f1.S%J pete¢1lt of ,your ttdjl,11tcd. gro~ income •rid. th~ore.
                                              \ll'tluld be dcductlbtc mt your iudividuoJ htcon:te tax t1:n:n11;

                                              Oistributimlt fio!lltbe:'P1~ to an a\tc:ta.atlve pa)leo \lnd~ra qu.alifie4 &mestie·rcl"!'tio'm
                                              QnJc:r purilumt to a divntt:c-; Md                                                       ·

                                              Dt"ftilttniollZ fmm the Pl:m which an: ;u a result or your tkfctrias in e:tccs, of Sixtffil
                                              TI1nun~nd FiVe Hundred {316..500) DoUus in 2010 and 2DJ I (•'rsur.h hi!{herdoUM IH'nlltllt(
                                              in clf\,'\1 in the y,:ar thu dcfcrraJ wn$ 1nade).

                                              Undct«t1ai11 drtuntst1nc«, distribu!.Wns. uf-10ltkl 'i,;l.lary defcmU eontri.butioM 10 "q_uali~
                                              (j('d ~rvists' c..'\11® to nc;iw mi1illtty duty.
                                                               1




                                      (e)     !!ifliblfJ.m:w:sp COMPHNSA TJDN .:fMENDJ)f}IN'rs 9f.19!J1,
                             _________LTA~.~~~~~1TLUH~LhhVG'                                                              .

                                      If tho disUibution is notln!osf"""d difctlfy !<I •nother qu>lifi.-d ro!il,.nent ploa orio !l!llndMdtt•l
                             Retirement AC(,O\tnt the Um!tnployrnet\1 COlnpcMntion ~~n1mdn:'1C!nu t~f f992 n-quin.-s \hn1 the Tnuite\
                             withhold h¥enly {20%) pcrc~lt of IJ:u: di&tributiol\ (()~" inoon~ l!iXts. Und~r '"ertain circum.itJtnca:, all or a
                             punion of a distribution m»y 1101 qtulify !or 3 direct ttotn>rtT or mlltwcr to another plan or l:ndMdualltctirc~
                             mont Accoon.t. Prior In rc«iving s di.'ltn'bulion fiUl'n !he Plan. th~ Plan Adrnini'fb'ntor will d.::liver to you a
                             mort dt::r3Ucd CJ5planation or the distribution opdou; twaltabft under lhc Pluu. Yotl shoufd <:Onsult with a
                             qualified tnK o:nmicl be(or~ m.'\king .u rho ice regarding •ny di11tribution.




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
                             8.

                                       Ylllrrnom.,hm~t               u•••
                                                                    for Jl"rpcm ofth< Pian Is yourslxl}'·nllh !65th) birthdAy.                     .~t   nm.
          0                  men1 1 )'OU WiH be tntitle.d 10 rweivc \be fiiU IUllO\l.lll t:TCtiiJt:d IO your Llcetltm\.
          Lr)
                                       1ilf Pl>n.prmides !Iter dim:jbulions 11 retiteroouf may be nutdeln·U.. fonu ofu !Ulllp""m
                             d!:illilrution. Tho •mount to be dislriblll<d ~U!< "'"'"'"•teditcd II> 1""' JI.<OOIII\IJ;·all~f!MV•lll¢<>•~••
                             prec<'tling.l""'"~i•tr'll>Vtioll. SINCB !IACH !NDIV!DUJ\t.'S SlTUATIO!-i IS Jffl~Qt,l.ll;;J'T./S 1\EC!OM'·
          '\!                ME!'IDETl'r!l/I.'TYOUCOIISI.IL'i;Wti:!IYOURTI\X/P!NANC!AL.mV!sGMlt'l'O'rifu1'il\i!NOO~
                             I'UL"R lllSTRffiUTION FROM TlfE PI..AN'.
          0
          1.\1               i.       llfM Til BltN/JFJT.r
          0
          N                         Upon your doo.th, the entire amount ;-lt'dittd to your Accowll und~ tho Phm wut be. dl'>tdhuted lo
                            your bcnr:ficluy in tbo. form of o lutnp-'Sl.lm distribution.

                                      You willbcP!"vid<d wllh • forru oowhlc.b rodc<ll!Mtc •ll<:nclld!U')',J:lowcvcr,jt)"!u il<IJ11>m,d.
                                                                 1>1'1),1ioiuywiU aUIOil!'lricallfbo YG"! SflO'IIf(Uil...,.:\'00 ele<:tlllh~•.lJiiJl.
                                                                ~~~?~,::;,. ;~ l'lo~ 1.\-..introD«l by fedm!l>.w'O® tii,.su.t!ifh<.·rt..>s
                                                                fl                  sex. who is lawfUJ1y matriN to)'®, i& dCfittit ak 1n" tM De·
                             fwse ofMillniOSC" Ad <,i'ub L. No         104~199,   llO Sun. 24lil).

                                        l'hit bent!ftdnrr de$ig.n.11tiOn m11)' be c.h.ung,l:d rmm 11m.: f\l t1me 1\5 lnng ns the pt(lt»r romu aro
                             t:Oillp!t:lt.'tl. rf no dtsif,n-:Hion is ln.Od¢1 Sl.lcll 011lotUll will hi: paid fn youn:poU5C'~ lffiVi¥1-(h Ofiwf'Wi.W: tO )biU
                             eblhlrcn.and lfth!!rebc none. then 10 yuur estate,

                                     lf them hM bolm b change in your m~riral st~IUS._ it is yuuc ~~l>i~i~y lf? ·~~ a_ ~~gc of
                            ll<:ncfiml)' fotm wiU! tb<.H1lnw! lte.oul<o De~L D"'th b<rtofif<' l!1liiCt W• Pl•n t<UI b< p1Hd lo
                            ai:JGO'rda.n« wJtb lhe li'\O.S( C-'Url'tDt bcncfiatriJY ddl:li,Ulndoil.-farm on fife.


                             ID.      !}fSAHIUTY RENEPt'f§

                                    lu the cvctlt that yilu become in~plblc ofperfl)nning atty entploytncl\twhith would be opproprbue
                             fM your 1>rior t1hj'!ih.--aJ satus, iruclletnru ability nnd ~:roperitth:c, duoln rnr:ntal or p.bysiC>~J db:ftbilil)' nnd
                             which will hnve beC'n t¢rtificd: t.:'l: by :u; independent physk.iau, you witi be tOUSUh:ted tube rttittd.




                                       UyctJ p~tp00e.y.ouv,¢,tlteme1n ~od yew oonml todrcmt'Jif,datc1 ~-~)'·CctR;lirt'R~·~ke
                            ·;40j (~l••liri·:ddi:mil'<ion1!jb!llill/li·•• ll1< i~llll and will '"'ndnue ui ·r.«k!! yo:U( olm,.. ·~~iiji:emploj¢1
                             cDnlriirutlt\nl 1110<!< to lite P\i.n.- P4}'!bcnt orb,.;filll, however, will be pos!J,..e<f until your""""' r!itire·
                             m.cnt fJ(lW~Vg", if you ar.; a fh'e (S%)p~rc::n\ ornwtc 0'\\'nCr or lht Ctm~umy, your benefits must com-
                             mence by t\prit 1st oftlte catendar yca1 roUowl.ns UN' c¥k-nl.!11f )'t<tu' in whic.'b )IOU tum u~ ~\'enty and one~
                             MJf (10~·~). Howevet. once you rdirc frun1 the compuy, yoor t\CL'QUtlt Bali! !'ICC in tho: J'hur ruust be dbttib·
                             U1ed.


                    ,,...
                    ;:.;.




     Confidential inrormation may have been redacted rrom the document in compliance with the Public Inrormation Act.


A Certified Copy
Attest: 9/2912015
Stan Stanart, County Clerk
Harris County, Texas
          (")
          (I)
          (')
          0                /J.      TF.!IM/NAT/QN OF EMPLOYMEhT
          c.                       You arc iihY.O)'J one fnuulted (I 00%) pcn:enl vested ill )lfltlr uceount balance in the Pl4c, A! sueh.
          0                Uyour W1Jllo)'1nonl is knninated~ you will be tntiUtd {U rt.cc:ive one hundred (ion%) percent ·ar your 1c..
          l:1              count bnlMceJnlfie PfnO.

          ...
          ~
                                    lt is itncnded th:U the Plan will continU<: indefinitely. HnwoYer. ttw Compnny tfo.es rekt"VC tltc right
                           to lennint~tt tite Plo.n in the ~Vent ofad.verst butinesi: conditions or Jbr atbcrbusitNJS reastlnr, f(lhc Plan
          0                ;, tcrrninuted, tbo nlllOliDts cn.'dltcd to the F.rnploy<r Contribution Accounts ot all the P1.!1loipsnt• will b<·
          N                tCIM one hundred (I~"'} percent- vested. 1'ht Plan ntlly :~Jsl.l be amended at any time.
          0
          N
                           U,      JNFORI>f!fT/bNABOUTTlji(JM

                                    '!ltc T•~ il9,l!l\Y.:Olld fJ,..f.~bllil)' Aol ITEFM) _, Clll<:<cd I•· 19821!114 blollj(bl ~!!Out
                           majbr clJ••~«:iu lhc "'tirciliimtplm or... 1M pmol5iom A>fTI!I'll.A ~ll>i!·.~loyoUo p!'J"ideo•
                           mlnilimm conttlbulion foh!ll.mpioy<., iw1fclj>Jltinghu Pl.. tllat is a<.,.,•o to liO "top-h<•>'l''• If, during
                           :.ny nh•en ycur. sixiy (GO%) ~tor murc: urUte tot1d ao:ctl\lnt ~leutes ofal1 Prnici:pant:S arc for the
                           benefit of key em1linyt¢:~. (i.e., .,mc:w:rs. or rub$1anlill owners} the phut wiU be deewcd to bt, top-heavy.


                           15.      /,QANS TO PAR71CUW11Ji

                                    With the COUJ'Ult rJ( tlie P.lnu 's TJU!ih!tlit you wiU be entitled to bQ.ftDw. fcol:ll ~ l~ &&J!1~ the
                           v.dut nt,;s-our I!IC:count:b~'!UI.ttr l.lttht Fbm. Theinlnimu.in 3'tl'K)Wlt)•ou wilt bc·.~~tlt~·1.o 'bOJ:tow1fQ.Qi ~¢.
                           Plou LtOn• Thouocnd (Sl,llOO) Dnlbm The !l!!!!iml!!:l!•mo•n• l"'1l wiU t;o.cntl11cMo bomwii<>ttllh< P!im
                           wbl bo tb•lcucr of!

                                             Fiftyf:iO'tV) pe~nt nrthc Ye5tcd amouotl)f)'l1Ul" AectlttnlJJalancc llS oflbc valuation d.At.,
                                             prhtt f\) tbc dale you llpplj• rnr ihc ~l'nt or

                                             Fifty Tha\lliend   {SSU~lOO}   l>o\bn:.. NolwiUtslaudiug Mytbing to the       tua~ntry.   the Fifl)'
                                            Thou,..tul (S~O.OOOl Dollor Otnotlnt shall be rodut<d by lhcliigllest outiil!!ldlo¥ balllll« of
                                            yoor loans Cram the Plan during th( twclvc(l2} month p<riod endfugon thvdoybefo~the
                                            foan bmado.




                                     Pattlctponts whu tep:m\11: (flltn $C(VIC:~ \\lith l'ln uu~1..wding loan from the Pbn witt hAve the <tptidn
                           tv c,tlher repay the J.oan in itt entirety ttpon .srpArotion Ol' w continue to m.nke pPymtnlS to \he Plan bll.~d un
                           the foo.n•.t amortizndnn schedule.

                                    r\lll<»ns nnutbt•dc'l""'Cly...,ured. Aloan•ll411bcd""''<:d tol!<tldcqWltcly-iCihc •lll"t·
                           (!lt,C omount uhU suc:b Joa!l' to ~lfdOt'!l notexcud tl\C VC$tc.d t1nltlynt of)'Ol¥ Ac:¢oUnt-~•la~~n:tbt~·1'b:D
                           ui>!ihe wlu.>tlon·dnte lmme<!Islel~ pm«Ung~ ""'" Iltit any lln\o •ucb ~~te!ililotint·ofloon.d~os




     Confidential information may have been redacted from the document in compliance with lhe Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



                                                                Deputy
           'II'
           rrl
           (!)
           0                ext~   llt.Gt llmit.lltlon,; then dx Tnntcc-s tb:dl require )'OU fo eitbcrn:p:\y the amo\lllt crto :~;dtqua\l::l.yucut~:
           0.               fhtn amount tl! fktcnninett by 11le TrvM~'·

           0                       YOU WILL IJE RF.SrONS!UI.E FOR. AlL FEES !NCURIUiD Wfnl !!ESPI!C'l'TO YOUR Al'·
                            Pl.ICAT!ON TO T!l!lTIUIS'fP.I!$ TO IIO!ti\OW FROM THE TRUST FUND.
           ...t!i
                            !N.VES~~~-~~~~:~~~~~~~o~~~i_E~~~~~
           '()'             V:"!Hf.l!rwPEC'PTOtoANll FI!OM THS!'LAN.

           0
                            16.          I!QLWI'li/t.Y 011 Tll.tNSfERS
           N
           0                         tf you ha.ve l"C«iveli or are entHied 1o reeei~eo a distribution from aoother qualified phm. under~.~­
           N                t:~in «tndition.~ you mny be cntiltnl fa haw !he.~ l\100\UtiJ transJorrod directly~ Ute Phtn. You ru:ty :dso
           ,..              be entilltd 10 tollove.rltt'OO\Intl yo-u corr<atl)' mainR:tln: in u rollover Jntllvidual Ret1n:mcnt Account.

                                      If you Z!ftiwtcm!l>l in availinsyonrselfofthio P!Jo opllon, you sbo)l!d•o<;lifyJJ!•.PII>l'/l.!lm~·
                            loz.i.......Uota}fln ui)I""IO det.,.;Jiowl\<ther dio O\nOW>OI')'O<j.wflilt 11>1ied OV<r'4rfrJilif(ci'it<l..j,ut1ilffot
                            atieh trc:~:JmeJ·n.
                    ::•;,                Allaruou.U. whkh.,. rollOd ....,., or "'""ferr<d into tbo Plan wllfb< oc• hundl<tl (iOO%) p<rc<Ut
                            ve!lil:d at :.n limes llnd will he mainloined in a scptfrl1c bookkeeping nccnunl in your oame. Upon request,
                            fiJ<" Plnn 1\dmini&tratof win pro"'ide yttu with llJlflt'1lpriure clectitJQ fmms-.


                            /7.          l:&!fl1£11WiT'S M.U.'AGEMENT ACCOUNTS

                                   Th• Pl•n isinttttded to """'!>lY with Soelion 41J«e) of tile Employee R~'"''
                            Ac<of 19.74("1llUS~"). A>.~'fmt.h~~'~< an oppotiUIII\y:!t>o~oose·lil>tll .
                                                                                                                                        In''""",Vc;,m<m
                                                                                                                                                 Sccvri11
                            "!!ll•!i.'               '                     "         '             .                                               .. .

                            Pl:ut, your ICtmtfll xJtafl be ln\Ut'.!d in tith« n lifc-cyck fund, w:gct rtrirt:mcnt dttc f'und or 11 bliaru:ed
                            t\tnd, 1.1nfil )'llU d~!de fu provide iMtniCtil)~ u to bnw you n.crount sbHII be tnvgh:d. Undu S~tJon
                            -t04(c} nf RfqSt'\, fidm:i::trks of your rfun nr~ rcUe'ttd oiU.ability fnr any louc::s '4-hft:h 11ft: the dirce:hnd
                            necos~u:-y tl!'~ult ul'investn'k!l'lt instructious gif'tn b)' PActicil"tmts.



                            Jl,          IIOM/lSTlCRECAT/ON.YORDERS

                                     Oenera:lb•T )'t»rt intm:stln your Acc:ountBah.oanmderlhel'taru::tm~nC!;•~ .tl.iet1nt¢. tn.eJJ•i.~(!~
                                                                                ..
                            ile..,ot be ,.ld, ui'<~ >J:«>~_for >~o ;j!iwo aW.t 4rolh~•d!fll.Jl!!;f$n<rl•- b!~lli\ltl~rr•ur.~•·
                    "•.'    O®llt·llalanco IJ.prot<el<if. fnim·orOdi!of! ,.;Jtin!!:ll$ your Aecoll!lt Ulilanc.•n:m.,in•'• portof!h<!.l'!mi

                                       HO\\'CWr, the Plan Administrator nu)" he tequ;ir«l by law lo ~&ni7A oblii'll.tirms you int.ur >\ri a
                            fe.<Oldt of ~nutt ordettd ch~ld tuppon. cllmnl\)' p."Jym¢nt.5 or ptoperty setd-c:ment 1lS n result oh divor«: de--
                            «te. n!e Pkln Ailininistnlnr m.un hooot 0. ••qualified darntt:tic rttb.ticms ordtt''~ wbit'h i:HJ~nned 4$. deere;;
                            i)t order iuu¢d by ut;autt t.hfl.tohligJlft6 you !u payclliJd $uppnrt or alimony, or otherwise: AUocnks a pmtion
                            ofytt\!r UJt;lS in.tbc filM. to )'(ll.lr :Spt)U$8. (OU'Uf:l SpollSC'. tb'ild Ot o!hcr dJ..jlt.r:ldeilt ff a '1\tll,]j(ted_ dwne~
                            rel<~Uans QrdtrU received bythcPI.nn AdmlniMNtor. aU or::~ panion ofyourbmefiunl!ly be wtd to ntbfY
                            tbe-obftgatiOn, 1110 Pllln t\dtllinbtmttli' wili determine tho ~lidily .,runy dumestic reliltitttll;.'u·,dCi-rrscei'ved.
                                                                  .• 7':




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
          Iii
          [")
          (')
          0               Voucr y~Nrbcndici'ries btl~e tb&rig.ht tu t.'cmi~otohtoin:. without ebnrgc. 11 copy o(lhe prueedurctthe
          (l.             Plnn A.drnlni.strnfl,)( U.~C$ in dd('A'Jnining lhc 1r"alidity orllny dOnlL'Stic re1tHi~$ un.Jer il rtceivu.

          0
          Iii              II.     ~'WliS PROCBDUl!I!S

                                      Anyrtuul'nttitipanlor beu•fltiOI)'cfo Ptrtidpant("•l•....,'rmsvmoke •1<!!u~for ~lao bent,
                          ".~rs..hr \ttli\;ctirt~ ~ wrijteb a.d*:c•=UirtS' J\:trtbst.n;h daJm fnr.~elib,UJ ~,~f!i)~~VS~r The notko
                          -.Sh:~ltin~tcat~lhc Mn\.e of\hoefulttwtt ~l)d ~typt.ofben~Ot ferWhiQftlhit:cldm:l&-ni~46-                        ·

          "0                         Within ninely (00) dn)'!' nf receiving Jht W'riUt1'1 nNice~ lhe Pbn Adruini~lrlllor ruuJt inform tbe
                           cl;limunt Wh(t}ll.'f the C)itim WfU be .sari1fial Ul' Wbull)' Ut parliDJl)' denied, unlt$5' special CireUm!tMCCJ
          N                req:uiro on ~:xttMion of time r«processhtg tb¢ dnim. lfs\k.'b an eAtentffin of\iJm for prcceuJng i; rc·
          0                quirtd, writltn mrtil..-e ufthe Dxle'ns:fon shiU be fumishetllu the olnimantpriorto &be tcrminatinn ortM initial
          ('l
                           nln<iy (9Q) dny period. In no CVfi11Wll !1JCh <xtm!lon ex.:eed. period or nin«y (!10) dar.> rrom tho end
                           of t.ueh initint -peric.d. T'kc ext~ion nOOec shall il\di~1c ili~ spcciol ci[cumsurnw r.:q.uiri:ug mcro:nJJon
                i.         or lin)~ !md the' d!'\<> l)y whle~ tbo Ploa ~tor '"~"''" to nnultr 1M llnal d~lon. !C lllcn> is a
                i          d<mat; tbc notl!!o. rh'llll'gtronltthi> iuuawmg.                                      ·                      ·
                                             Th< iP«!liouuo~or."""""' Cot !lie d.,lisl,

                                             ~pecifie   R:fe«:uee to the $ltl:1inc:nt Pttn p«l\"ir.ions no whiclt the dcnint i& based.

                                             A iksa-iption of 1m; mattrio.J.nnd inrornl.:ftiun necn,ary tn perfe-ettbe cJahn and c:n t:\pf:J..
                                             muioa of why such tnntcrlnl ~d int'C111l~ttion is nc:cess::uy.



                                     Wllhlo il"'Y {6U) d•Y< of n:eqlving a Mlie< den;olll!l• ol•lnl w{tplly orll•t!l;lly, th~ clol\li'!U'nm)'
                           •Jll""'l sucll d<ioial'to1he Pfi·n:Admloistmmr Cor ,..,;.w, '11\e ~ucst fot arcl(l.W-.iuu>tlnl i~·ivrnloi:'"d
                           e.omotn liN r-·tbr-wldi>~·Ol!tk elaun is mOilc: 1h< •:Jl>it•mm m•yr~)ll! ~I"I~J<aat\lh•s.tl\0
                           Plan f·"PWJlO.a. ofpnJptrlilgbi$ rtqU...t ro; • rev!..,., Tbe Plan Ai!minlin-.liiu:irbifll itiview'IM ~•I of
                           t.be ¢leima•n and. if nec:tiS:uy, hold t1 ~earing.ut wliiell the elnimaut mar presenl bts 'tc.\st~oa fot obJ<-e-tiu:g-
                           to thC'.dcnhst (l.ffhc claim,

                                      The l1lnn AdminBtratot must rcmler l:l dcei&iott n:g_urding the appcul of the claimaor not' lattr tban
                           sixty {60) daf$ afh:r the clnimattt·~ request for nwiew Wl't n.-ceh.•ed. Ho\W\'cr, iftberc is n need to hold a
                           hnrin;, A d~ision mtt$l bt' rendered nu lntet thao one hundred nnd twenty (120) dnp after receipt l)rllte
                           m{i!J!!I;t fur review.

                                     The <l<:clolun on rovl<w of·th<Piao AWI!lul~tormun b< in writiog; ml"t lu<{llili:ftp<:<ific """""'
                           for. the d<:driori n:od must nmi:cl'rlctl'nce to 1M ptrWiull Plan provil:ltonJ on.~tth·?l~:deeisi® #4S ~li;




                                    Ali u pllllidj)Mt in the Plan* )"aU m cntitkd to ccnain rights anJ prou~ctt.o!l:t: undet flRlSA. the
                           P.mplo)'\"e Rctirlllll<nl !nco"" Security A<t nf 1!174 t'ERISA'l Elt!SA 1>rovld<J !bot all Pl>n pa<licipan"'
                           ~  entitled ro;

                                             E»::nmlao. without chlltE<~'• ot ibe Tn.meeS• offiL"Ci nfl\1 at Ol.ber~l~ef,ll<n.1l~ FU® as:
                                             work s!ltt eod'uw'ol1·f>ilil,. ell pt..,_ di>c:limc""' !nC!odlll!llii>W'IlnU ~lmtn;cl:l; .;iilltotlv~

                                                                                   ·!0




     Confidential information may have been redacted from the document in compliance with the Public fnformation Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
                                                       :""·i.
                  i~
                  ·:;


           !D
           l"'l
           ti'J
           0                                   C.f!!•lning apm<111>, MU • top)' ortbola!.,.laonual n:port (Fonu SSOO Serl..) Ulc<l by
           ll.                                 t!>c Pktol<ilh the U.S. f)cgann>ent of Loboran~ u"'ilohlo at tl!o Public Dlsdosure Rootn of
                                               thC' Employee Dencftu. St<:Wity A4ruin1urv.tion.
           0
                                      ·.t.    • Obt:lin. uqon wrttted.
           ,..
           u"'                                . ~roHrnt oC!I>e•PI.,,

                                               $Ctipfion. The f'J:nl Adminiflralol' fYPY l'n!l.ke a. I'I:!Ut:.m~blo c:hCif80 for lbo eopits.
           'It                                 R~ccive a 11Un1t11ary pfthto Plan'.;; .wwat firuuteitd r.oport. Tite Plnn Adroinisl.r:J.tor is r;:.
                                               quired b~·lnw to furn~1 c11eh pmticipinl wilh a copy orthii :'1Ulllmll:f)' a:uwo.J tepan:.
           0
           t\1                                 Obtcil'l., stnl¢tntmf tullingyou wbefbt;r you b.1ve n riglu to receive a pcru;ion nl your otmmll
           0                                   t<:\\remt·aidatc. uiid If so. Wbat'youibeuefiln woula Oe at ytjtlfinOnntt i:tH~fdaiO if ,YOu
           N                                   &tOp\\-ol'ting.undctl.bePJanM\V, tfynudOnothiM;Iniigbi:Oa~d\es~tcmmtwiU
                                               toUyoubowmMy""""Y"'""YJ>Ohli'"'IO"'o'kl<l!<tonSi;iU.~~Oti..'t'hlt''i".l-'
                                               tml!~bo.~•q•~"/-bt~(IJI'•Ril ~ •"91~ .. ~~v.\l;~,i!iaa~c'cvetjlWd,.
                                               (12llrnmlft<: 'ni•"P.Iob'mu.tpmvilllrlhistal<mentfroe·of-elmfge: · 1

                                       lu nddi!iDn. to cn:aling rights ror pl:tu p#rtkipactJ, r;JUSA impo~cs duties: \1}1011 tht ~ph: who «R
                             reiptl~U~ible fot' !he ~l~t'UtilJn o!the Pi.-.n, The people who o~ral"tltc Plan,c41Jed toOducil\ries" of the P1wt,
                             h.\V{" a d\li)' ta de so prlldrntly and in lht tntCf(.ll <tt'yau and othct plan p:utieipanhf iind bcnofi~inries.

                                      :N:o one, including. the Company, or any Other ptrSOn. m11y firt: you or otbcrwi~ d!se:iminato egnfus1
                             yuu in. any ww.y U) pmvcut you fron\ obraWng fl rctitt:iQC:Dt benefit or aueisins j"Q\\t ri!{ht:i uud:cr ERISA.

                                   !(your c!Oin\ cOr. a retimn~ bt:J)eftllo d<.nied or i!l"OI'01l.,in whole ot ln p(ll1.i)<>u.h:lve.o~rlJ!~fli>
                             bow, whY thil wu.dol}C, tO o,b~.hs: ~tcs.pfdocumcnu cdndnr to ihc dc,!tiOO·~t~vf,chMsr~· Sn«-to
                           · li.la"it'an'Y atnh,(-at\ Withtn tOrtai"D·ltrnc-~Cb:tnMi;.                           ·              · ·            ··
                                        Under ERJS;\. tbere uc ~tcp:s you. can w~ to enforte i.he llbove rightli, 'for instanc::c, if you request
                              acupy ufl1lundocuments:utd•tt latesiiU\rtu.'ll report &om the Plan ~~nd lionut n.'tclVt: them \~oithin t:h.irty (30)
                              dn.ys:. yuu m•.r m~ sui1 in a tl:dernl court. In .$UCh s cua, the court nu1y mJUirt rhe Tru!itecl to provide the
                              mnlcriuts and pay you np to $ll0 BdA)' unlil yuu receive W m.l1trild:ii. unless the. mtntrloin were not stnt
                              becuuse aff\.'"ll.Sons btyond 1be t-ontml orthc Pl11n Adminil!trnJor. lfyoulmvt->tcf.tim furllaehet'Jcfitswhicb
                              iJ denied ot isnored. in wbuk or in p;lrt. you may 01.: suit in a sL:It0 or (edcrnl court. !n addition. if you
                              di:sngrec wlth the Pion Adminhtm:or't.: detisiort or(J_d thc.rcofccmcerningrbo qbNtiliod s::tnis oh domntk:
                            'rtlktiol10 oni«'oia modlt.loblld s!lpllorr o!OO, you may ni. suitl~.l\:dei>l 'CilOrl;                           '

                            · •     . lElt>ll61>ldhor>P"l.'!iulrir1.anlldlleil>t~m1"""ruoP!an~moncy,o>l{X\)Ii~!i>c!ls<riP!tlll>l¢'ii;Aini<
                             f<n:.aSNrllng yeur rlgbll, '1oU>nS)•.it.eli o>rlolo!ICe fi<nn1Jie·ti.S. Iiepilitmi:m of;Lab\>f, <ir')'!\<) fii#· IDe '.Ult
                             In. r«tml ~®rt. The court wm dtt:ide who should p:~y court C0$1$ and1eaul ~. lf'you tire' I'U<:tcUful Ute
                             couff mny order tbe f)CC"$0tl you Mve sued tn pay thUt~ t."Wb t~nd fees. U'yuu loso. the court 1114Y ord!U' y-ou
                             to pvy 1bese eost:c and tees, fure-xw-n!ll!!. i!it f'in~ )'llm' ~!aim t'rivoto\l!,

                                      lfyou have any questiMS 3~t ymtr Plan. you lhould C()nbct 100 Pl<1n AdmiuiMrator. If~ lut.ve
                             im)' questions abour thii r1atca2ent or about yow rishtf Qfldcr ElUSA, or ifyClu notd e:ui.sbUtw lo obr~ining
                             \looill\Cfii..;-.Jium lhtr PI !'Ill Adrniaistnrior.you sboukl~tad: tbencweM An!a Offiee afthc-Drnptoy;:.¢ Jl.ene..
                             li~ ~¢_F~ty ;4min[>tmti~.or t1.S. Dtpat1.1Mnt otLabort listed in your ~!~Ph~ ~irtt1(9!YOt,tb~f}iyYitin.
                           · ~·:1'«~n;c.rA$S""~<,.<Il/d.lOtii•iri_oij,;f~lu)'lt• B...,fits Se<l>ril)' Aaruinl,tr.o;,n,~_;!l<·D¥on~.U'.'>f.
                        , :·;, :-~~"f~O!J~iilti\'!,~?".;r\v.Uu•·N,W.;W~lbill&tort D.C.10210. YilUtnl!Y'I\hi>'nblaln~nl)Ubli«UjO(Or,


                                                                                         ll




     Confidential information may have been redacted from the document in compliance with the Public To formation Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
           r...

           2 }Jr;~;{,-;;~-)1>uiri£h., ~nsi!lUlllc<·ul!d<!T
           Q..         .
                                                 •n.!
                            Uenefits 'St.'Ctlritr t\dmlnU:tmdon.
                                                                             PJUSA.by ""lling !he pubUC.ti<llis boUinc,oi'!he l!ln1i1DY"


           0
           n                11.           PUN T/IRMINATfON TN8U!IANC2

                                      Under the plnn tcrmtnslion lnsttn.l:nce provhillnl ofERISA., the bentfilt provided f11r und~rtbe PIIUl
                            lire oot inS\Ir«J by !he Jton1dtm Benefit OU411Utty CotpOt"at.itm, llOO K Sttcd NW, Wuldtlg~on. DC, ~tJOO,S..
           'if              4026.

           0
           N                          W!i!14Nii!MCE
           0                Yau or yovr beneliclaries: mny tw cnrirlcdtn cetfllin hen¢fitr und<r Pian \4-'ith respec.l to peri\x:!s duting whicb
           N                )'tlU p¢rronnqu1:dified mHitnry service. Plot:tc c-onsuh wilh !he Pl:m 1\dmiiJist:rruor if you think you ~nAy be:
                            Bll"eetcd b.y tht new ruler.


                                    TillS BOOKlfiT L~ lNTENOF.D AS A GENERAL SUMMARY OF THOSE ~ROV!S!ONS Of
                            n!ll I'LI.I'OF P!I.IMillW OEN6!1AL·lNTfREST. fT !SNOTPARTOfloiOROOES ITMOP!FY ANY
                            PROVJS!ONS OF T1lE PLAN. IT OOES NOT ALTeR Ol\ AFFECT IN ANYWAY TI!E IU!.l!!tSOl'
                            ANY PARTiciPANT OF T1lE PLAN.

                            Tlil:   p~~:f~~~~~~~~~~~~~~O~~~~~~~V!NO ANYtNTSlms! IN
                                      Tl!F. VLAN IS AVAILA!llll FOR F.XAMJN,\ T!ON AT li!E COMPANY'S PERSONNEL OF-
                            f!<:::F. IN   I,!VIl<G~TON.




                                                                                    12

                                                                                                                                                   '~
                                                                                                                                                            ~
                                                                                                                                                        ... ;;:




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
                                                         THJ!: GMlj GllQIJ.I!,bL.C, SALARY SA \'INGS PLAN



                               11nda::r l)ur ~~l.c:n_.,p:Hticip:utl$ ~elf--direct tM In~ ofclJ «~:ntribu!lom and' tlJ~ llUilnrolp;td in t!lqt
                               nto.tllnts. ,\o.:t'loiiu~ly, it ~stbc!.intout'ofthe Plon And its tiducJariu·to tuuiply }lli~·'tht'·.il'I'Uca'l:Jlti:..PrOyt...
                        . . ·'~ino• .ifiicttinn 41l~I<)<J(SIUM'(thol!mplnyo~ R/Jiinom.n! 1u<:llme &;>•rill' 11<:1 ur.l974)•. \Joli«,S~•doli
           ';)
                          ;,. (q04t<l oi ni\ISA;·'!!llmn'.s.ofyoutl'WI'd.r< t<li<>v..J of•oyiiability tin riJJ.y llliO.S ymi·i....,f. ..·a'nlslifl or
                           " )'t'urinveatmcm 'in.\inn:dotu sl'td decistom. To obo!in lhJs rellef. tbe Plan uwsr meet cmnfn oond.mons.
                               Then conditions .uc. tumrnnrit..ad beiO\\I.
           0
           c-J               Rroad fb:pgt:c( Invurattot Aftcrmtth•c:s. To comply wiih Scc:li(m 404(c) ~f ERISA. partic:ip3tUs mun
           0                 hAve nn opponunity to chom:t fnun a bfolld range t>finveftm~nt Of!tionll thG\ feprtit..'nt a .-o;oftablo dh<ers1~
           N                 ficntion ot rjsk nnd rc111m tbo11:acterittfes.

                             Under   »••  Plott p!>l!lolp•nlll are. •llow.d lo uw.,lllt<ir funds In on ll\
                             Hocks, bOnds, mlltllllf ftllliL!. c..h,dc,); Ypu ...y do-36'1!11nSll<UO!i$ ai·
                             voa. 111.,.Jti_ven•Iillh........mi <irn~•ii•illl• nnd any M~~ll'aad tNt.·
                             cl!tmgr)or lhollitt!ooal·NMDAQ rr oV.rS2.QO,       You ,.. Mrt~: .........
                             \lo not pu\ the money In us.e, it wm be put \nlo o MOt\C)' Mnrkct P'uud.

                             The ('Qmpan.y nnd Plan f'hhtci&rlcs wiU tnuli:r. I'll t\."'lrtuffilble attempt~: tCl pn:vcnt a prohibited invulment
                             (ruln (l~unlllt! ruul wi.U notifypll.l1icipunts b ti.'IOO ;n nny proMhitcd invettmmt l! discovmd. Rowevcr,
                             ityt~u haw :myt:ol\1."¢1'0$ reg.srdiug ~ pnrticut::sr lnmtment, pleGsl' eontscl 1M Compliance Pe~rtment.

                            Pll!tl~ note that cc;m.tn"hulious lMdc to lhc Pla.n 11ft! iDitt1:Uy ckpc)litett in your accwut b) • o:un:;:ey p:utr\ret
                            (un~t~nd:temaiil,itt:tfio moru!f Jrlir.ketf\lcd tuna until )~u·dedtl&!to lii~ 1$0cb n.~\h:lh. i:.10tbet:
                            l'ncstinent.

                             iilYul,;;••tlotorhullno. To Clll!lply wllh S«IIO!l 4G>I{<)<>rEIUl!A, partioipnnli ~m~«·i>o providclsiiffi.
                             dent tnromu.uion '"make hribm1ed invc&ttntnt ~eisil)tl.S.

                            Sint:t ;he Pbn doe& NO'f pru\'We apro--dcterrointd fiJ:tl1 iis.l ofinvcslmcnt chofc~ you~ the pllrticiptmt. sr<:
                            reminttcd tbat yotl should requo1 and oblain 1111 oeccs.wy rmd relevant infurm:a:tio!l ~rdinu ony inve&t~
                            ment you an: ~unsiW::ring nnd!or ehoosinJ (e.g.. PI'OF{I>t~lus. pe~ncc histar:r~ investment objective$.
                            ~:~o:pcnaes end lbes. vob1Hhy. etc..). Before- you t~k~ Any inmtmtntdodsioa, you $hoWd rtod and study
                            cnrefuUy Wl Ofthe infann.1Uon ~s;arding.tbt ill~mcmt Rcmtmb\!.(, v\tu srf tlie one legaflyra..;n<ntsiblt fO(
                            ygur iAvc§\!\u:nt dcclsioQL-

                             11>~·~·1.,\(fvll:o, Silt..,nonha:U..P!an Admllll>irul!tt(lh<C""''""!f.PlM.I~<·~•r~-r~•:
                            .sl!ilHOi'th•in~llll<nip<:ti..""'o"'~f~ (Yri& odtcled1iy<ocb pzfli<iJ)>.n~ ~ .. ~lsti:A.r.i.i!~ot'Ond
                             tlie truucc(a:) do'NOT otftrr nny.ad\1Ct wUh rttpttt to the ln\-ettnlenl oryour 1ecount ~iittllihetf Undettbe
                             Phm. AU int"C!ftmc::ntdeubin:n1 bdona: tn the pt1rtitipan1. 1md sheu1d bt: b·ued un ~ch pun'clp3n\"1 \hart and
                             fnit$·fcrm fin::uu:i:d ~0.11.\ $nd ll'C:cdll.

                             L•r()('e,uing Your frn1:snne:ot hutrutUon5.                Your IICC:Otli'U ectiviiy :md account $tlllcuteltlS: mny be
                             viewed by OCi:'C'.S~in~ }'Llttr nr~ount tbroogh the office S)'Stcm.

                                                in tq(' JCT'l/CY C'(l)•, 'N'~tw Jmcy office or the Hotmon-. r(::(S$ off"te9t yQ_U am ftq)h) )"llUi
                             J[Viill ltn: Wl;\'rkill}J
                             bt{;tl't~~~l'l~-tte~if~·n;i~r~.S~·~~U,iu:me orcrntklns ~t:lo'cau:d 'ire your offi~ ·
                                                                                           13




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



         ~~~~~~~~~----Deputy
      Stenlng G. Seneohef Ill
                    :; .   ~-;l,~ /lf~'linre.wnr!;;i,~ in ·"'!Y of lhoofll.ccslilted b~ow, )'OlLCllll hovo)'OD~ln~.t.l~i!n>,tru'l(~"'\ P.\~<4
                       ·;;r.,:£{:V·jhrouflh lho·livintuton OpaiiU:oJio Pq•of!menL,. ~i>e o«<>niP.1~hei! o7jci:l!iJI!;Iho',\'i\lllii oiii)>b<tli!
                    ;: l · · · "!~•l0!45.1.(.1.JO.thc lnooln•mb<il'al (97l)333·5ll00, or!ho spetfcl-l:tr•• nuttillot ol (9H) 541<-'ls!r!.
                                  ti\>ittg$tM. Mc;w Jr:my
                                  Jme,f City. ~cw Jmey
                                  Ool;'..ll R.31on~ florida
                                  Otccnwieoh. C.onncctiC!ut
                                  Ml!tttti, Florida
                                  Sptfugficlt!, P'CtiM)'Ivanb
          0
          N                       :,.\ttauuf ftois._ 1'1\ero·ara vatitJUs ~~~~~find fcca Wl).eintcdwith.~ &w~rm~t·iQ."'r:utti~.(e.g.
          0                       jiro;:miny or, a lnd~)·w1Udl i'li~ O.el~rge<!.eild dl:d\!tte4 ftOm )'Our ~•i'unil<f.\lk !!len. !!..or<> to
          N                       rOnSfOO tllt·fC4i:and·~ru;;s in ·m,il.tinit rour it:t'ltl\mtnt dUifi\OUS.
                                  J( you have :ny quc.'!Liml! tt.--g:~.nJing thil Nolk.~ pleUd t-001.1\cl Timathy J. Don<1h~ lU ('SOO) 463.-6230.




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                                                                                          14
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                                                                                                                                                    '




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
    Tab5
Notice to Court
                                                                                                                                              FILED
                                                                                                                                117/2015 4:32:36 PM
                                                        - ·-~ ~'"l"ftY                                                                 Sian Slanart
                                                                                                                                       Counly Cler1<
                                                       DATAENTRYrs ~
                       ·,
                                                                                                                                      Harris Counly
                              ANM                      PICK UP TillS D .                         PROBATE COURT 1
            r-J                                                 522 Cause No. 396935-401
            C)
            C)
                              INRE                                             §         IN THE PROBATE COURT
            (.).              JANET F. McAFEE,                                 §
                              Deceased                                         §
            IXl                                                                §
            C)                ROSEMARY FOLTYN and                              §        N0.1
            U'i               JAKEFOLTYN                                       §
                                                                               §
                              v.                                               §
            ,..               THE GMS GROUP, LLC and                           §
                              WOODFOREST NATIONAL BANK,                        §
                              Defendants                                       §        H~SCOUNTY,TEXAS




                                                                  NOTICE TO COURT


                                   Comes now, M. Elizabeth Duff, counsel for the Estate of Janet Foltyn McAfee, Deceased.

                            It has come to the attention of the Estate that Charles Storer, Power of Attorney for Charles

                            McAfee, Defendant, herein is trying to access funds of the Estate in its Motion to Quash Writs of

                            Garnishment, as set for he~l~gJanuary 8, 2015 at II :00 a.m. The Estate objects to the Motion as

                            the Estate claims an   interAsr:i~ these funds. Please see the attached Order Approving Inventory
                                                       •.
                            filed and approved by this Court on May 21 , 2014, referenced herein as Exl!ibit A. The Estate

                            respectfully requests the Motion to Quash Writs of Garnishments be denied or stayed until all

                            matters may be heard as the Motions all involve the characterization of the funds. Counsel for the

                            Estate, M. Elizabeth Duff is in the process of preparing the Motion to Release Funds frozen by the

                            Agreed Order for Temporarilnjunctions in Cause No. 396935 of this Court, referenced herein as

                            Exilibit B. There has been-~o opposition by Mr. McAfee or his counsel to the Inventory or division

                            of the funds. It is in the best interest of the parties to hear all matters contemporaneously. Further,

                            counsel for the Estate, M .. Eiizabeth Duff, was not notified of the January 8, 2015 Hearing in this




      Confidential information may have been red acted from the document in complia nce with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Har ris County, Texas



At;_~d
    G.
       .   o
         lit
    St rUng        Senechal
                                                            Deputy
                           Court. Please see the attached Notice of Hearing, referenced herein as Exllibit C. M. Elizabeth

                           Duff is unable to attend the Hearing however is available by telephone.


                                                                       Respectfully submitted,

                                                                       ~::chell & Duff, LL~
                                                                       Mru{tL~
                                                                       Texas Bar No. 06166880
                                                                       210 Main Street
                                                                       FUchrnond, Texas 77469
                                                                       Tel. (281) 341-1718
                                                                       Fax. (281) 341-5517
                                                                       Email: eduff@mitchellandduff.com
                                                                       Attorney for Estate of Rosemary F. McAfee,
                                                                       Deceased




       Confidential information m ay have been redacted from the document in compliance with the Public Infor m ation Act.


  A Certified Copy
  Attest: 9/29/201 5
  Stan Stanart, County Clerk
  Harris County, Texas



~
~~ .A
~rling
       ~
       4L
        ~ - . Q
              . , . , . .~_Deputy
               G Senechal Ill
           'iJ                                                          Certificate of Service
           Cl
           "'
           '-I
                                  I certify that on January 7, 2015 a true and correct copy ofthe Motion to Release TemporBry
           C)
           0.             Injunction was served on all parties.




                         Esther Anderson
                         Anderson Pfeiffer, PC
                         845 FM 517 West, Suite 200
                         Dickinson, TX 77539
                         Via Fax: (281) 614-5205

                         Matthew Lipman
                         Faust Oppenheim, LLP
                         488 Madison Ave.
                         New York, NY I 0022
                         Via Fax: (212) 371-8410

                         Dean M. Blumrosen, Esq.
                         4615 Southwest Freeway, Suite 850
                         Houston, TX 77027
                         Via Fax: (713) 524-5570

                         Woodforest National Bank
                         Registered Agent: James D. Dreibelbis
                         25231 Grogan's Mill Road, Suite 100
                         The Woodlands, TX 77380
                         Via CMRRR# 7014051000086589226




     C on fide ntial information m ay h ave been red acted from the document in complia nce with the P ublic Infor m ation Act.


A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Harris County, Texas
                                                                                                vo&OP
                                                                                                ~~(;:!(UP TinS     DATI!

                                                                                                           No.lt69l5       ~..,

                                                                JNniEtSTATitOP                                         Ill Till: l'llOB~TB COVJIT

                                                                JM<ET POLTYN MCAJ'U,

                                                                DEC!.AUD



                                                       ~R AfPROYfflG fQliRDI AMl.NI)'[Q JNY!NTQBY. APPRAISJijr.g::N! & LIST

                                                       ~                                                   ~
                                                                       111e fllt'CIDHII FCNnb: Amended lllv•alory, App!'IMIIMnt UKl Un oCClilmt oflho •bo~
           U'\
           ,..                                                  nlaw N.'flna bun nle-4 ocd pn'I('Qicd; U,cn hnht& Men no vbjcc;tlont D\adc IJ\CftltD: lAd lh11 Cg\111.
                                                                Mvln.a c.ontldmd ~nd oumlncd \M sunt, b utlll'kd lhtl l, al'lovld t.cl appn)VC:d,

                                                                        tT fS TlfE.RD'O'R.E ON)tRltD thll \he forc~rC~Ina fi)U.rth AJnc:ndcd lavcntory,

                                                                Apop'lbCmCI'It ~nd UN of Cl•lm• LJ La 1U rupocta 1ppcvwd and ORD'£R.ED c.ol.crDCI of record,

           ....                                                         SIGNW"~ 2/~ordl}c??                                             !v1l
                                                                                                               ~IN~~
                                                                APPROVID ~S TO FORM:




                                                                 Sla&O SArNo.; 06l66110
                                                                 Colla K. J'rttmaa
                                                                 t!;:!: =~~~~lh•                     Ettetl or Jace1 Poll)'ll McAlte,   o~a.od
                                                                 liOMilnSrn:tl
                                                                 Rlcllrc.O»d. TX 77469
                                                                 Tdopbooe: {211) l<i-1711
                                                                 p..,lmJir. (211)l41·lll7




                                                                                              -~ I d (rom the documtnC fn tQmpllonu with llu Public (nformallon Act.
                                           Conndcntltllnformtldon mt)' hnr b ern~~~~ c


                                      A Certified Copy
                                      Alles!: 811011014
                                      Stan Stanart, County Clerk
                  ·!"'1-1111111~~~--~~~urll   County, Texas




                   IX                       r-.- .......... ....1n   Arrnvn




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Harris County, Texas




A44 o
    Sterling G. Senechal Ill
                                                                        Deputy
                                           ..
                                                                                       ~,X              •....,
           "\                                                                          J$KUr1'lllS 0"'-"
           "''
           C)                            ~                                                     N•3Pf.JJ5
                                        ' 1!1
           C)                             0                                                              TN Tlf£ PROBATE COVltT
                                          0
           CJ                             ll.                                                            NO.I
                                                     J.u!ET FOLTYN MCAnll,
           Cl.                            'I
                                          N          DBCUSED                                             RARRIS COUIITY, TEXAS
                                          'I

                                                         fOURTH AMJNPI.P myzNIOJU', AUJU!Rf.MlJii Alfi) LIU Ol CLAJMS

                                                                                         Dl~ orDcal.bl MtJ   a, lOlO
                                                           n.rollowlqba(oW1baCDdtdtuJI,~udc.cnpl~ln'NIIDryandAppnhcmcnlofall

           ({)                                      rNf propori)' tiNtled In lk SUI~& of'Ta~ ud gfaJl pmonJ JnOpcrt)' whaevu altualtd, l!i~l•lhct

           P''                                      with 1 1Jit of Cialau duo 1nd o..W.a to tlab P.sttw u oflbc. 41" ofclutl\ wh.ldl hiYo CDmc IO lllc
           c;                                       powcukln orlcnowJcdp or,.,_ un6aslsncd.
           ~.1
                                                                                pro;raogy AlfD AlPRAJStMENT
            ...,
           CD
           (.
           ,..
                                                    C2MMl!NII)' FROJI'IBD'

                                                    l.      CASSIN BA.NKS1

                                                           AcQNQIIWI
                                                           WdNtioQ! 1M OM9 OroQP, U.C
                                                            AGC.O~fnl<:     Brvkc.nt&•AcCCilMII
                                                           AcooWI"JCD No: 11XX • ua:621
                                                           ToW....,~ oruacr: .sn,Tn.42 oo "'II or deW~
                                                           Leu Nn'i"ttllllpO\IM lh&JO:: l<ll5,174.71~
                                                            Co-o'WII'": Noo•
                                                            D.,;Cidca~t lnlcrul: SOtto

                                                            ACCO\Illllll
                                                            1A11ituUon: Tbo OMS Group, U.C
                                                            AcQxa~t type:   Brokaqc ACC0\#\1
                                                            AcxowltiCD t-lD: na xn:OOI
                                                                                   4


                                                            TouJ nNe of ~.SKI: S~772S:Z ca dw: ordcltb
                                                                                                                                            $))1626
                                                            WI ourviv!"'IJIO... Ih"': S<3,JU.l6>
                                                            Co-owa~C~J: NoM
                                                            Docedeal'll =crut: SO%




                                   ConndcnUallnform•llon ml)' hne been redacted from tho dotument In complhtncc with the fubllc lnform11Uon Act.


                               A Ccruned Copy
                               A nut: 811011014
                               Stan Stannrt, County Clerk
                               Harris County, Tun


                               ~llNw~                                              Deputy
                                      Consuelo Arroyo




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



A4d o
   Sterling G. Senechal 111
                                                          Deputy
                                                                                                                                                     ...,
                                                                                                                                                     a
                                                                  A~UQtfl

            ...
           I.'
                                           0
                                           0
                                                                  1nntMion: Tho OMS Croup, UC
                                                                  A-I)'PC: B111kuqcAoo>o""
                                                                  """"">'CDNo: """->ccr911
           n.                              II.
                                           ~
                                                                  Toed \'alue of utat: 50.00 on d~ Q( de.~ Ill
                                                                  l.caa ~-Ma~poua lhn: so.oo                                                     SQ.QQ
                                           N                      t:o-.o'M!cn: None
                                           v                      o..cd.,.f,lllmn: SO%
                                           .,                     AcCOWJ~I4
                                                                  loi!INiior>: Tile OMS Droop, LI.C
          !!'...
                                           0                      A"OUD\ t)'pr. 'Brokcrap Ac:co\m~
                                           N                      AeeouaiiCONo: DI'-DX612
                                           N                      ToL&I-..I~tC"ofUMt SO.OO acSac. afde~lh
                                           N
                                                                  Leu ~Untvtq lpoult IbM: so.oo                                                  so.oo
          u·1                                                     CO.OW~~Grt: Hoo.
                                                                  OcccdtDI'J1aw-t: SOK

                                                                  AccoW~tMS
                                                                  lrwdnniol\! ln. OMS Orwp, LLC
                                                                  A~\~: Btokcqc AGOOWU
                                                                  ~UDVCD.No: gx ·~ae~:6'0.S
                                                                  ToLil 'W'Ilue ofUkl: $425,03-4.70 oad.ll&: ofdeath
          ...                                                     Lc.usurvtviDa~rJ~CUM~thln: S<l.S4,)1J.IS>
                                                                  eo..owncn: Nooe
                                                                                                                   ,,.,,'121-:{.')\
                                                                                                                                          SI70,6Sl.ll

          "'
          1.·•
                                                                  Aooou:zrtl4
                                                                               ~...~ ~~  ...
                                                                  Oceedcut'alnt~ S~ ofOOZIIInaDI~ ,C.1r\Mo


                                                                  loniMion: Wollo Poup Nallooal BIOI<
                                                                  Moow11 type: Ch.ccti:Da
                                                                  Mcoun~CDN'o: ~114
                                                                  ToW vtJ~,~, of Uole't: $519,76 on~~ or dca\h
                                                                  1.ct.11 nrv\vlzla 'PV"~ lllww: $<Z94.11>
                                                                  Ca.oWDm: None
                                                                  Dcccdcnl'l (DtuRt    SOK
                                                                  AccoWitrt
                                                                  INiil\llloo: Wood !'oral No~onoJ Baolt
                                                                  Acco\1111 type: CbccklDa. opc.gcd by Kcn~~cd! Mt.Afail dllrlas PIUTiqo wilh leU(, on
                                                                  So:piOIIIbco' 29, 200?.
                                                                  Acc;ouar/CD 'No: XJJCaU404
                                                                  Tc:a&l -,.l~ Dl um: Sll,l.SIS,9l oo ch~ of eSc.til
                                                                  La1 Nnivlri&IIIQWOaben:: S<ISI,Ill.46>                                   $19,121.<46
                                                                  Co-owncn: At dw ofdul.b. •aac.
                                                                  ~.nt. Ullcrcn: .SD'K




                                    Conndcntr•llnform•lfon m•y han baen ndtded rrom rhe doc:umenl Ia c:ompllftnct wllh lh1 Public: lnnmnallon Art.


                               A Certlned Copy
                               AIIOJI: 8/lO/lOU
                               Stan Stanart, County Clerk
                               Harris County, Tu••



                                                                                      Deputy

                                                           .•.I




     Confidential information may have been redacted from the document in compliance with the Public Infor mation Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas




A~G Sterling G. Senechaf Ill
                                                              Deputy
                                                                          --------· .- -· -

           m
           C)
                                                       2.    MOTOR VJ:BlCLIS:
           Cl                               0                Vehicle II
           Cl                               0                Dcocripcloo: l006MmlaMI.tm(MX·'>
          c.                                Q.

                                            ~
                                                             Will:    ''"'''"'"""''nax.m
                                                             ToW VIJ~Je; Sll,l30.00 an d1tt ofdc:t.th
                                                             1.ca NMvtoatpW~e•h..-c~: sq,4Jj.OO>                              s6,m .oo
                                           N
          co                                ...              t:o-G~:Nont
                                                             Docadcnr'l fntant: SO'ti
          C)                               ...               Vohlolci'Z
          if1                              ~

                                           0
                                                             Dcocrlplloo: 1959 Mm<dco Modd 190,4 door
                                           N
                                                             WI I; 111XlCOOI510
                                           N                 Tool VoJ..: u,il$0.00 oo cl.oll of dulh
                                           (\/               I.,.cwl\lr'ilrila tJI9U'I lh~n: Jc;l,.SlS.DO>                    12.m.oo
                                           Ill               Co-o'llmff'l: NoN
          111                              0                 Ooc:c:dc:Dr. lnlui.C SOM.

                                                             V~ltU
                                                             De~Q'tpd<ll\:   2.007 Cltl001 S\aWd Mo\Q~le
                                                             VIN1:~7
                                                             To \II V&lu.e: J4,490.C1,1 oa ct&to of del~
                                                             Leu ....;w, .,.... """' $<2.243.00>                              12.145.00
                                                             Co-OWDcn: Nont
                                                             Oa:.dtnl'•ld~:          SOY.
                                                       3.    HOUSI!:IIOLD l'tiiUIISIIINGS;
                                                                     IIOUKJ>old l\lml""' aod 1\Ralolllnp     114,000.00
                                                             TOQIV~IIC:    Sl4,000CQdalcofclcoll1
                                                             Lea l'lln'lvLca rpoUMGlarc: t<7,00CI.OG>                           11,000
                                                             ~Noac
                                                             DoccdCDI'J l.att:ral:   ~

                                                                                                                            ma.sn.ts
                                                                                                                          oaMirotdutb


                                                       SEPAJtATE FROWSTY

                                                       I.    REAL PROPERTY!




                                   Conndonlh•i information m•r hvt bun rtdlded from tl'lc doc:ument In tompllanc:• 'With lhe Public lnrormnlhm AtL


                              A CcrllOtd Copy
                              Allest: 8/ZO/l014
                              Stan Stan art, County Clerk
                              Htrrls CaYnty, Texas



                            ~llNw~
                               Arrovo
                                   f"'nnctt<>ln
                                                                                     Pcputy




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



A4d  Sterflng G. Sanechallll
                              a                             Deputy
          (j)
          t,:)
          (;
          (l
          u.



          ul

                                                           :::..;z ~=:~G<do """""'-
                                                           ~
                                                                                               O.OOlll6,001 0601 Soha- P~-n II, 5q'<""
                                                           Mile BntiiY, OcoP"JJI\klll Ol 9101~0Z·7019461' CAD 10 93156       SS~,S90.00
                                                           To\IJ Yll~M: $$4,590.00
                                                           ~wn.,..: Nooo

         1(1                                               D...S.OI'IIn~GUt:   teem

                                                           ~
                                                           =~="~Cooa<y-O.OOlll6,0010691. 8oh•P-0UWJ,S4"""
                                                           MJio Eoutt, Ooopll>b.lw 10 9IOI.o69).7019<61, ClUJ lD 101617       $64,!JD.OD
                                                           Toeal Value: S64,$SO.OCI




                                                            =
                                                           Co-owurs: NOM
                                                           Do-1•"""""100!\

                                                            l!.r;ss]§DI!SCRD"l10ll·
                                                                     Ia~ t. Mmiorda Cogcrty- 0.003136, 0010619, Sab-Pc~ll Ou U.a.I11Jl,
                                                            5q'<on Milo e....,., GtoanpbJ<a!IO 91DI.o619-7019461, CAD 10 91165 S7,4IO.OO
                                                            TowJ Valvo: .$'7,410.00
                                                            Co-G"""c~ No•
                                                            0CCo~6cailiD1crcrt IO!l'K




                                     ConndcntiAllnrormaUon may han bcon ndactcd rrom the doc:umont In compliance with lhl Public lnform•tlon Aec.


                                A Cerllnod Copy
                                Atl.. l: 8110/lOH
                                Stnn Stnnart, County Clerk
                                Rorrll County, Tesas


                                                                                 Dcpuly




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas




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   Sterilng G. Senechal Ill
                            Q                              Deputy
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                                    Conhdcnll•llnrormatlon may hnc bun ndaclcd rrom thJ do~vmt"lln             tompll~nco wtch lhc Pr.ab11c lnform•llon AcL


                               />. Certified Copy
                               />.tltot: Bfl0/l014
                               Stan Stanart, County Clerk
                               He rril County, Teras




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
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                             A CertiOed Copy
                             AIIOII: 8/l0/.1014
                             Stan Stnnart, County Clerk
                             Rarrft County, Texu



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                              Consuelo Arrovo
                                                                                   Dcpuly




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
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                                A Corltntd CoP)'
                                AII<JI; 8/lD/2014
                                Stan Stanart, County Clerk
                                Harris County, Ttnl



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                                      "'""""',..••oln fl.rrnvn
                                                                                     Doputy




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
                        01/01/ZOU IIZD     !120    PAX 7132243111 Lav OHi.oa                                                                 ~002/0p


                           06/07/2011    10:58 Mitchell &Duff Attorneys at Law                                 fmzB1341S517               P.002J011

                                                                                                                            DROBATE' COURT f

                                                                                 No.3JI6,93S

                                   IN THE ESTATE OF                                     §    lNTBE:PROBATECOURT
                                                                                        §
                                   JANET FOLTYN MCAFEE,                                 §    N0.1
                                                                                        §
                                   DECEASED                                             §    HARRIS COUNTY, TEXAS
           ll'l
                                                       AGRUD ORDER FQR TEMPORARY INJUNCTION
                                          On Marah 31 , 2011 the Applio:~tlon for a.Tcmporal}' Restraining Order o!Roaemary Po1tyn,

                                  a.s Adminiaenuix oftheEstatcof1anctFoll)'D McAfee (the "l'!.ltata'?, was beerd and granted before

                                  this Coun.

                                          On Aprlll41111d MayS, 2011 tho Court ultllliAtoly ordored tho Tompor~ ~training Oroo·

                                  bo ex1etlded and Temporary Injunction hearing be rcsebcdulcd lO Jime 9, 201 1·at2:00 P.M.

                                          On May 18, 2011 tho Application far li. Silpp1croen)al T~poi~ Remaining Otdcr of

                                  Rosorna.ry Fo1tyn, 11$ Administratrix of the Estate of Janet F'oltyn McAfee, was heard and granted

                                  before this Court. Tho Temporary liljunctllin·hoaring wu scbcduJod for Juno 1, 2011 at 12:00 PM.

                                          On June I, 2011 tho Court ordered tho Supplemental Temporary RestrainiD& Order bo

                                  cxtonded,and Temporary I:ajunction be extended and Temporary IIUunotlon hca.rlng be rescheduled

                                  to June 9,   2011 ut 2:00P.M.

                                          On Juno 7, 2011, tho partlo! apd to tho entry ofa Temporary lnjuootion, and to pa.93 on the

                                  hellting on June 9, 2011. Thia agreement is ovid01:1ccd by counsels' 5lgna1Ur08 below.

                                          Tho Court finds thnt all necossnry prorequlsites oftho law have been log~~lly satisfied and that

                                  the Court bas jurisdiction in this case and ofall the parties. The Court finds that Rose!Illll)' Fo\tyn, a.s

                                  Admlnlstratrlx of tho Bstatc of Janet Foltyn MaMie, Is entitled to a Tompora.ry Injunction.



                                                                                 lana




                  ~   EXHIBIT
                  ,__~__




     Confidential in formatio n may have been redacted from the docu ment in compliance with the Public Infor mation Act.


A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Harris County, Texas



A--<~d.o
    Ster11ng G. Senechal Ill
                                                             Deputy
                  ·.f.··   06/08/2011 DD     P120    FlU 7132243111 Lav Office


                                                                                                                                                       Q'AX)2813415517
                                                                                                                                                                           llJOOJ/011


                                                                                                                                                                         P.0031011




           Cl
           Cl
           Cl.
                                   sorvanu, employe", agenll, aery~~'l\l'~~rs, auip, rcp~tatives, 1111d anomcys arc Ol'dcred
           Ol
           ()
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                                   to immedlatcly ceaso 1111d       dcslat:,~tl)i:l¥~:.nd cootrol of!he following ~ooouotJ acd property;
           ....                                                                 ·;mi!!:Gl.i.GROUP. LLC
                                                                                        ';;:~          ::·.j

                                                    I,           Ally and all:!undl i~ C!M§ Group, LLC accounts, Lllcludlos but not limited 10
                                                                                       ..,, .,,:-;.::1 .:-;:(::
                                  tha following. all of which an prCSill!ledtl!:'~on~ eommlllllt)' fUnds and/or f\lnda bcl011glng to tho
                                                                                                :i::       ·..:
                                  Estate:
                                                                                                                   ·-:·
                                                                    11•    .5SH~~8 . :, :::.:
                                                                                       :::· ··.
                                                                    b. sSH-os6oos
                                                                                                 .·::.·           .··::!·
                                                                    c, S~6606o6 :r .

                    '
                                                                                             •: .
                  'Ill                                              d. SSH-003612'
                  JO
                  .I                                                c.     SSH-034914'\i·:::; ;.;::';~~,.~:·:~: ,
                  I"Ul                                              f. SSH-850012 '::'·
                    I                                               8· SSH·04247!l

                                                                    b. SSH·008207

                                                                    I. 989-03491

                                                                    J.     996·66060

                                                                    k. 989-03500

                                                    2.           A:Dyaod all funda in OMS Group;J®'~unts, all ofwhich are pre811111cd to
                                                                                                                            ·: ,,, ·
                                                                                                                          ;ij.i :
                                  contl.io COIMlunlty*nds and/or funds belonging to lli~~~u.. (l)io thellll!liC ofKCillleth MoAAe
                                                                                                                                            ·.
                                                                                                                                             ~· :
                                                                                                                                                 .
                                                                                                                                                                                        I.
                                  or J1111ct J.'. McAfee, Individually; (il) KCII~ MaAfee,:li;if"tiili'~;ll. MeMo jointly; (Iii) which
                                                                                                                                ···· ·'          't'
                                                                                                                                                                                        II
                                  lllll1lll9 one or both ofthom as        asi~~Datoey: (!v) which ooJ~fulicrJ~~
                                                                                                      ·.· :"'·'·'•' '
                                                                                                                      lho care, custody, control, for

                                  !he bcno:!lt, or on bahal!ofKCIIlleth McAfee and/or J111et ~~M~':~dlvldually or jointly; 111d (v)
                                  A~..ST...,....,.Ifll.. cftaa                                  hrto                                      \i:r::::(i>




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



                                                                   Deputy
                          0&108/lOH IIKD     ''lO    ru 7lll243LLl Lov O!fioe                                                                                                                                   llJOOti_Dll

                            06/07./2011    10:58 lftc:lleU t. Duff Attorneys at Law                                                                    fAX)m341m7                                          P.004f011

           l[l
           ,..
           CJ
           (.:l
           n.                       Wldlll' any address rela~ to eitheroi'them, wch as a puvlous residence, .rehrtion,repre5c:ntaliw, or

           0:.1                     sttomey'a addresa, or con1pany which clld buslncas on behalf ofol1her Kenneth McAfee or Janet F.
           Cl
                                    McAfee or which wu owned In wholo or io part by oltber or both of them. The addre&Se8 include,
           ...Lrl                  but are not Umlted to, the following;
           If)
                                                                          I. PO Box 66352, Houston Tmw, 77266
           t'·
           ~·
           \li                                                           2. PO Box 460786 Hollllo.o, Texes, 770S6
           co
           Cl                                                            3. 66SO Falr11eld Stroet Houston, Tcnc"'• 77023
           ,...
           Cl                                                            4. 2119 Tangloy HoUSion, Tllltas, 7700S

                                                                   WQOJ>liORJ!:ST NATIONAL BANK
                    II)
                    •
                    !JJ
                    0
                                                            Any and· 6:u::~ds Ill WoodforeatNatlonal Bank aocounu, Ill ofwhlQb 11n1
                                                                         ..•::~~.     :::~:.    .
                                   presumed to 1:011tain cammunltr,:tut~df~l!'i/ar. filllds bclollgina to the Es!ate, (l) in the n11m0 of
                                                              .!;.::· /;~.'·:~A>. ·'.::=.=:·...
                    .I             Kenneth McAfee or Janet F. MoAfoi:.rifiiivlduaJ,bi( {U) K01111ctb McAfee BDd 1anet F. McAfee
                    ~                                                               .·.-.;- .·.       ~:~~v             .
                                                                                                                       .~ ~;:.~::;;:.
                    Ill            jointly; (ill) whloh names one or both ofthem'ull. s!gru11ary;.(iv) v.:hloh conlalns f\mds in the we,
                     I                                                                                 .:·:   .~:...     .·::.':~~-               .~H~i.~.r:-
                                   c:ustod)l, control, for the bene.ftt, or on behalf of Ketiil~ McAfee andlor Janet F. McAfee,
                                                                                                                                  .. .   .. ~~~                    .::::.
                                   lndlvid\lOily or jointly; and (v). 1111dcr any address related to ''~jJi~                                         o~.tj~rid~ as II:;JltOVioue
                                                                                                                                                       ·:.;:)~/f            ~~~~:.::::..:;:~:: ..·.·=·;~·.
                                   residBDco, relative, repr*ntatlve, or attorney's addreas, or company which clld ~~~:on.,~~~-f .,,
                                   either Kenneth MllAfec or JanctP. MoAtie or whleh ~owned In whole or in put·;;~QrJih :f:~:                                                                                               .,i"        i
                                                                                                                                                                                           ····!>.·!;,OJ   ::~?i·   !{/t . .:~:e·:r·::~::::
                                   of them. Th~ addres3c.s include, but are not llnllted to, 1bo following:                                                                                                         ,;:~[:';' ·~t     .,;~~:
                                                                                                                                                                                                                          //
                                                                a. PO Box 66352, Holl!txln TIIXU, m66                                                                                                                               ..:}~

                                                                b. PO Box 460786 HoUltOn, Texa3, 77056

                                                                c. 6650 Fairfield S~t Holl'ton, TCIXas, 77023
                                                                d. 2119 Tangloy HoWJton, Texas, 77005

                                                                                               hrJG




     Con fidential information m ay have been r edacted fr om the document in complia nce with the P ublic Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas




    Sterling G. & nechallll
                         Of/01/ZOLL   no '' n        nx. 7132ztllU                  Lav       Otfico                                                                            lil)005/0LL,


                           06/0712011    10:58 Mitchell &Duff Attorneys at La11                                                                                               P.OOS/011



          ...11)
                                                                                   BANK OF AMERI~,:.·~·t.' .
          Ci
          (' •
          .;
          0.
                                                    4.          Ar.y and all tund.s 111 Bank of ~:~;x: accounts, all of whic:h an:
          C()                                                                                                                                 ·:;·;:···   ...·.-.·:~/~ ..
                                                                                                                                          .i;::·                     ;:(:,;
          0                       prwwn~ to contain community funds and/or fundi ~~!IJinll !<i#be Estalll, (!) ln the name of
          111                                                                                                                                   ·:·~;:~-!~~;\~:~':·;:-:•
           ,...
                                  Kcnolrth McAfoe or Ja11et P. MoA1Ce, lndlvidually;ilM K.cnn~ McAtee and Ja11et F. MaAfee
           \i1                    jointly, (Ill) whiob DllllQI one or both o!tbem as a                                           s;~f:!llr.·O~;~ch conlaiu.s f\ul<lf In the em,
                                                                                                                                               ···:···:~!:'····

           i.)
                                  custody, oontrol, i'or the beae1h. or on behalf of Kenneth McAfee aN./or 1anot F. McAfee,
           t\1
           al                     Individually or jo!XJtly; a11d (v) under any address related to dth.cr of them, INch as a previous
           ()

           ,.,
           ;0:\                   residence, relative, rcpn:sontatlve, or attOI'Ilo/s addrese, orQC1IJ'lP!IIlY whlc:h did b!IBinosJ 011 bDbalfof

                                  either Kotmeth McAfee or Ja11et P. McAfM or                                       .;;..l;i~ii\vl:a:~~~ In whole orin part byeither or bolb
                   1,0
                                  o1'th81l1. Tho addresses Include, but arc not UiliHCif~:tlllli!buowlng:
                                                                                ..:; :,..
                   ~                                                                      .:,;..                ~    '
                                                                                                                    ..,.   ·!:        , . ,

                   Ul                                               a. PO Box IS63S2, fiii\ii~ Texa, 77266
                   0                                                                                    n:!"                             .:
                   ~                                                b. PO Box. 46Q7~};I~~~ Texas, 770S6
                   In                                               o. 6650 Fairi!;ld Stre<i~· fi~ustap, Texas, 77023
                    I                                                          ::;~.        •:;.:1
                                                                    d. 2119 TB4loy Ho111t,iip, Texu, 77005
                   "'
                   ~
                                                                             BBYACOMPASS BANK
                                                                                                      :.~:~;ii::::;:;-. ; -.'~.~;/'

                                                                                ;iJi:....\        .:P:
                                                    s.          An'/ and all flilldl;i\i;BBVA
                                                                               t:·:        •... :·::
                                                                                                       ColiiPIIS ILCCollllll, including Laredo Nationlll

                                  Bllllk, Including but not limited to,tl)c tonowl..iJ: all ofwhicb arc presumed to oontatn oommlllllty

                                  funds and/or fund& belonging to                ~~.~11:
                                                                                           ·~··,'    '"':;· i:.::::·
                                                                    ~.       11:3011>547049..{)23

                                                                    b. tfun~to;23    ·:v •!~·:'.i\ .-'

                                                    6.          /Uly and .iiii:~~ In BBVA Compa.n accounts, Including Laredo National
                                                                         ·:.·<              .o:·.:,.

                                  Bank. aU of which tu't: pr~cq,l!l,Col,!;in collUDunlty fuad.s alldlorflmds belonging to the Bslatc,
                                                                                 -:+·.·:::~:··:·;·

                                  (I) In the name ofKe.nneth MciAti:il.o~ )~F. Mc.Afte, Individually; (ii)Karmoth MeMo cmd 1enet                                                                 I:
                                  AJr«IT.,.poni)'III)IIIICIIU      .''\ :';:'>:/·:,;:.~:·:;;                4 of II
                                                                                                                                                                                                 i·
                                                                                                                                                                                                 I




     Confidential inform ation may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
                                                                                                                                                                                               '''''""""'''/.
                                                                                                                                                                                           ~'''' \ OF lf4l'//.
                                                                                                                                                                                       .$'~~· •••••••••• '(-?~
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     Starting G. Senechal Ill
                                _Q                                 Deputy
                                                                                                                                                                                     ~~··.
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                              o~/0812011     no           1121            ru 1lliUllll wv           otUco                                                                 li)005/0il
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                                06/07/2011           10:58 Hltchell 1 Duff Attorneys at Law                                                                        P.OOB/011


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          ~:0



          C1
          Ci                           F. McAf~jointly; (iii) which name• one or both oftham as a algnatory; (iv) whiQh Qonlains funds in
          c.
                                       the~. c:w~tody, ooncrol, forth~ beoofit, or on behalf ofKGIIDCih MeA!= and!or Janet F. MeA!~,
          (J.l                                        .                                                                                                             0\ .
          Cl                           individually or jolnUy; and (v) under aey ad.dreu related to either of the~~~, ruch as a p~~l!,S :,;;',:::.

                                                                                                                                         busin~,f~~~¥:~:{:g:,
          l.fl
          t···                         ruldence, relative, representative, or anomey's addreaa, or company which did
          If\                          either KenncthMoAfee or Janel F. McACoo or wbi!Jb was owned in wh~:~le or In Jl¢b)i~lthcr orbOih
          ,..
          (I                           of them. Tho addtuses ln.cl\lde, but ato not Um!ted to, the followtns:                              ::::;.ii:::·:: j=;;,;·> :'t'
          ~·I
          ('('
                                                                                        a. PO Box 663~21 HoUJton Texas, 77266
          (:'
          ,..                                                                           b. PO Box 460786 Houston. Texu,:77056
          C1                                                                                                                ;•::/'
                                                                                        c. 66SO Flllrfiold StreCI Houstoni'T~!_}7023
                     ~                                                                  d. 2119 Tangley Houatoll;r ;Il&~~ 7700S,,,i'


                     ',
                                                                                                               :·:      .. .      ·.··
                                                                                                                          · :....
                     I.{J
                     .~
                     ·I                                                   7.   Any and all fUnds·' 11\:Wo;J~.;Farg!l
                                                                                                          '·'·:;>" ·• .·:...
                                                                                                                             ~~. 'tM. accounts, Ill of which are
                     Ill               presumed to contain· commwlit)' funds.~!lt'or fimk~lleiooglng 10 the EaiAtc, (i) In the JWI\O of
                      'I                                               .:.l;:;~yt... ·<:>·,·,. .
                                       ~th McAfee or Janet F. M~~OC;''liiili,Vii!ually; (i!) KC!IIIcth McAfee and Janel P. McAfee
                     ·r-."'            jointly; (iii)              whi~h niUilOJ o~~,~~;~dt)(lh~ ~a slgualllry; (lv) wblch eontaln31\mds In lh~ care,
                                       custody, control, for the benefit, or ~:~n behalf of Ke!IIIOth Mc.Afeo and/or Ianot F. McAfee,

                                       individually o~..j~Uy; and (v) under any addrua ~latccl to either of them,                          BI10h   as a pJC'iioua

                                       mldonco,                 ~j~,·~1~01rt4tho, orattl)Juey's addren, orcom,l)toey which did bu5ineu on behalfof
                                                                               . ·.;,

                                       e!th~~~iili~:
                                           ..,,·
                                                     ¥~:or Janet F. McAfee or which wu owned In whole or In part by eitheror both
                                                   1• :
                                       'of.;lh~'rJJc.~es \naludc, but II%C not limited to, tho following:
                                           :~~;:.r:j.:;-;;:'i:..;·:..:.. ..·
                                       ::':.,·
                                       .:. ··
                                                                                        a. PO Box 66352, Houston Texa9, 77266
                                                                                        b. PO Box 460786 Houston, Toxas, 77056

                                                                                        c.   ~650 Fairfiold S~et Houston, Texas, 17023
                                                                                                         lotiO




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
                       OHOB/2011 WilD     1121    PAX 7l3U431ll Lov Office                                                                               ~0071011


                         0610712011     10:58 Hltchel &DUff Attorneys at Law                                           G'A.Wll13415517                 P.0071011

          ,.,.
          V.)


          C)
          ()
                                                            d. 21 I9 Tllllg)ey Houston, Texas, 77005
          Cl.
          c;                                                     CITJZENS FINANCIAL GROpp. !NC.
          C)
          ll1                                    8.
          t"'
                                                        Airy and aU fuod!llu Citi= Financial Group, Inc. 110001111tJ, all ofwhioh arc

           lii                  presumed to contain COilllllunlty .funds arliJ/or .funds belong!Da to tho 'Bstete, (l) in tho namo of

                                KCD!lcth MaAf~ or Jlllll:l F. Mt:Afc11, Individually; (il) Kenneth McAfee and Jma1 F. MoAfee

                               joilltlyi (ili) whiQb nmnca ono or both ofthem ualisnatol')'i (iv) whioh contain31lulda in the care,

                                CUS10dy, control, for tho bcnef\1, or on bobalf' of Kenneth MeAfoe and/or Janet F. McAfee,
                                Individually or joilllly; and (v) UDder 110)1 addrcas related to either of IMm, such as a previous

                               residence, telativc, rcpteaontative, or attorney's    addrcu, oroompa!IYwhlch did bualness 011 babalfof
                             ;/ .eM~:x~oth:MC4(~.qr J~l!'t~~ MoA!eeorwhlcJI wasownod ill wholeorinpartbyC!ltl!erorboth
                               :'ktb,. ~-~: ~dr~cs'!ncl~1:~~u\~;~~unJ~'~, r-!no:s:
                                                           ~-   PO Bo'x'66~S2·; H~'T~, 1:7266
                                                                                                    : . .:- ·~. ,•,

                                                           b. PO Box 460786 Howton, Texu, 710S6

                                                           c. 66SO Palrllold Stmt Houaton, Texu, 77023

                                                           d. 2119 T1111gloy Houston, Tow, 77005



                                                                               PEBS!JINGLLC

                                                 9.    Arly and a111\ulds In l'cnhlni, LLC acoolll11$, all ofwbiol! aro pn:&Umod to
                               cont&ln community fun~ and/or fun~ ~ltnlgins to tho Estate, (1) Ill. tbo namo ofKcnneth MoAfee
                                                                                                                                                                    ,,
                               or J1111et F. McAfee, Individually; (il) Kenneth MI:Afee 1111d J~tmt F. McAfee joltltly; (Ill) whlcb                                 I

                               namor one: or both ofthem es a.~ign~!OQ'i (iv) whicb oontAilu funds In the care, cuatody, control, for                               I
                               the banafit, or on behalfofKeiiDOih McAfee and/or Janet F. Mc:Afee, Individually orjointly; and (v)                                  I
                                                                                                                                                                    ~·
                                                                            6 ofiG




                                                                                                                                                   _______
                                                                                                                      ··---- ···-··-·······-··· ....




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas




    Ster11ng G. Senechal Ill
                    ~, • 06/08/1011 IIID I: ll                                                                                                                                                          111~081011


                  r·
                                                            FAX 7132163111 Ltv Office

                             08107/2011     1 .9,i.!i:l!.~ttnell &Duff   Attorneys at Law                                                             O'A.W813415517                                P.OOS/011
                                          · ·:.:- ..::·.·

          0')
          ...
          0
          (.)
                                    Wldcr·~·~d~J~~ to Bither ofthem, such as aprevloua recideru:e, JO!atlvo, representative, or
          c.
          m                         1\ttamey•;:~~~:o;.:~mpany whioh dld buslncw on be~alfofeither .Kcm!cth Mc:Afeo or 11111Ct F.
          C)
           ;r1
                                                                  •.
                                    McAfee or ~~~··.:w ~ in wholo or in part by oitller or both of them. The ad~ Include,
           ~·
                                    but aro notlhn;:~{i~;·;~Ud~s:
           Jl                                                            ~;: ~d Box 66352, Holll10a Texas, 77266
           (I
           C'l                                                           :~(: ~gp:~~~!~.60786 Houa1011, Toxu, 170~6
           co                                                        ·~·c. ~~~0 P~~-d Street Houston, Texas. 77023
           Cl
           ~·
                                                                                                '{."j·
           ....
           t'·                                                           11. ~119 Twi.li>fijo~~~tan, TaliS, 7700S
                                                                             ·.;~~/~~}/': ·.          :·,:-:

                                                                                 ·.;:·. .:::GI~ 4                             co, INC.
                  tfl                                                                   •:;::;::-·                ·.;.:.~

                  ~                                         10.   Art.y a!ld alli\JI~ln Onunat& Co., [IIC, accounts,lncludl!lg aey Or\latal &
                  II)
                  0                 Co., !no, aubsldlarios or atii&tcs,              ln~lfina but ~'i:bltod to tho foUowlng, aU of which arc
                   I
                  ;.j               pre8\ln\ed to colltain community funds                 an;~:~~~~~~~g to the &lata:
                                                                                                         ·:;::·
                  1/)
                                                                         a, 989·03491
                   k                                                 . b. 9U-oSfiOO
                                                                                                                                    .• ·...t·.;;::-
                                                                                                                            ···;::i}./~'·
                                                            11.   Ally llld all fundt In Gruatal & ~!i}m:. aceoun~,, Including any Orunlal &
                                                                                                                                ·:·:·:.
                                                                                                                                 ·:.:·
                                    Co., Inc. subsidiaries or af1ili11tcs, all ofwhkb 11n1 preruuied to conlllin .:oliUilunlty funds and/or

                                    funds bo!onging to the E,llrte, (i) in tho munc o!Kcllllclh MoAfcc or Ianc:t F. Mo.Aft.j), l!ldlv\duelly;

                                    (li) Kenneth McAfee 81111 Janet F. MaAft.j) jointly; (ill) which                                          nll!;!liji'
                                                                                                                                                  '.'>:··
                                                                                                                                                          't~~:~~~th
                                                                                                                                                                 .:···.·
                                                                                                                                                                         of them 11 a

                                    !lgnatory; (lv) which contains fuads In the care, custody, control, ~~fJIIc ~~~J~~ on behalf ~f
                                                                                                                                                                                                                     !
                                    Kc:nnGth McAfee and/or JDnet F. McAfee, individulllyorjointly: and (v).~.· :a;;;~y
                                                                                                               ·.:
                                                                                                                       ~related
                                                                                                                       ;.;.·...
                                                                                                                                                                                                                     I
                                                                                                                                                         ''·-;; ., . ,:; ,j' ~' ..·.       "
                                    to olthet of~. such aa a previous residence, rellltlve, repreaen111tlve, ot-'it!Oriict.t.,:¢~5$, or
                                    compaey whlob did busincw on behalf ofellhetKt:Moth MoAfco or 1anot P. M~~~~~~ was
                                                                                                                                                                                                                     l,.
                                    AP'CI4 T••Pm'7 lljv..tlu                                         T oliO                                                                      ····:;:;,,-;>:.-   '


                                                                                                                                                                                                                     I.
                                                                                                                                                                                                                     I
                                                                                                                                                                                                                     I




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
                       06/01/lHl IIBD    J1 U   FU HlZlflLll Lav Oft ice                                                                               ~OOJ/011


                         06/0712011                                                                                                    f~81~15S17   P.009/011




                                owned in who!~ orln~'"''at\!C!T<lrbothoftbtm. Tltc addresses Include, butarcnot llm11cdto, ~
                                                         .~;::::;:.:::·.:. :·;··   ..
                                following:                        . .;:::::>··:::~;;,::..
                                                              ·:::..                    ;:::.:

                                                              ~L' :PO.Bo'N6352,
                                                                  .:;o:::·:::·:·
                                                                                 Houston Texu, 77266 .



          ,..
          Cl
          ~J
          o:l
          Cl
          ,...
          Cl                                    12.

                                belonging to the Estate, (I) In 11\C) name ot:~:z.ioAfee ot Janet F. MoAfee, Individually; (!i)
                                                                           ;;/'''   '{ t
                                Kenneth Mc.Afoe and J~~not F. McA!oo ')~j~tly;. (lli)'Which o11111e lhOil'l as a aignatmy; ("IV) which
                                contains funds Intbc care, custody, oontrol,;:(ortho.~f!t, or on behalf ofK.ennelh MoAfoo and/or

                                Janet F. MoAfeo,lndlvidually orjollltly;                         J:(~)'~jy addrcsuoiAtcd to eltbetofthom, suob u
                                a ~vlous res!den~, relative, representative, orilttcmif.l(Sddre!s, or company which did buslness
                                                                                                       '\::.:·r~::~;}·     ..,
                                on behalfofcither Kenne11\McAt'te ot Janet F-l4~-~ includlng.butootlimited to the followins:
                                                                                                       .·::.·•:.~~:!::{::~!·:;\:~:~:
                                                               a. PO Box 66352, Ho~j).nn Texas, 77266
                                                                                                          ·:=:::
                                                               b. PO Box 460786 Houston, To:<as, 77056

                                                               c:, 6650 Pa!rflold Sueet Holl31on, Toxu, ?7023

                                                               d. 2119 Tanglcy HoUlton, T~;:?#i>o~,':.


                                                which coutain:

                                                        OJ




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
                            06/01/ZQLl IIllO      9: Zl   PAX lllZH]lll l.av Of he•                                                                                                             Q)OlO/OU


                              0810712011    1O:S91itcnea & DUff Attorneys it Law                                                                  (J'AX)2813415517                       P.OI0/011



           (\!
            C,i
            (I                                                                   Woodf'oreAtNBllonal Bank, Bllllk ofAmerica, N.A., BBVA Compass
           a.
            0:)
                                                                                :aenk,      Wells 'Pargo Bank, N.A., Cltizons Flnanoial Group, Ino.,
            (I
                                                                                 l'crlhlns lLC, and GNtllal & Co., Inc.; and/or
            if I
                                                                       {U)       Any       IUld all addition&! fund1 aod                       BSSetB   w.hich -         presumed to

            ....                                                                 contain commlllllty fund' and/or fwldiJ belonsm1 to the &laiC•

                                               IT IS TBERUORE ORDERED, ADJUDGED AND DECREED that any Mtey or
                                     lcdividual,lnoludlng but not limited to Tho GMS Otoup, LLC, Woodforo!tNatlon.al Bank, Balik of
            .....
            Cl                       America, N.A., BBVA Colllp118& Back, Wells Fargo Blllllc, N.A., CitJZOIIII Financial Group, lDo.,

                                     PC18hlng UC, 1111d Clrutcal & Co., Icc., which contains, controls, or posseases funds preswued to

                                     belong to the community and/or Bstate, is ordered by the Co1Ut to tffccl\lale tho .~~IJil'''~f$18' i !' ·'::}:
                                                                                                                                                                , r :- ·· ·        ·:    ·.::   ..   ~   -:·

                                                                                   . ,or. any o~ccra,
                                     Tc:mpol'lll')' II\Junetlon ehould KonnothMcAfoe,            ..
                                                                                                      \iaents,
                                                                                                       .
                                                                                                               servant!, ~plo~=~aUJ
                                                                                                                          . .    ,. ·. • .;:: .
                                                                                             .,. ·=.~- •     .. ·i· ·.   ~·-· '•i'.·   ';:~.                       ·:!:;,.,.;•;-    . . ..
                                     ar.rvants, successon, as.&l8nSi:tiljiresclit&tlvcs, ana/or •c:f.ia.ciibgO)I hl5 bdlalf, attempt to ace=
                                       .••. . . ::~::-::;1.... ~-.:~ -:..  \:i:            :r.   ~:_\.: :· ~:f:i'· .. ';;l; ·····.··· ···
                                     or ob1,lin ilc:C<I.IIIIi:l i~~'propar!Y )Vlthlll that :entit)' oi'lndlvldual•• control or pouesslon, whlch may
                                     i      y~~    \(.      ..r.·!~.          ~>~···../.
                                     ~~: coiilinunl~ 1\lnds and/or funds that belOJJg to 1ho ~tate.

                                               IT IS 'X'REREFORE O:RDEREJ>, ADJUDGED AND DECREED chat lhll T~:mporary
                                     uyunctlon Ord11r Ia etrectivo immediately and shall cominueill force and dfcct until1ho Courtmaku

                                     11. dctcrmlnAt!on ofwhatproporty belongs to the Eateto or tho Court rcnderla~U acd fhlalJudiPllCDt


                                     b In tho pondlng wronlli\ll death .suit woclated with this matter, which over b later, or by t\u1hu

                                     ordu of !hill Court. This on!er shall bo binding on Kenneth MoAfcc, or any officers, employees,

                                     agents, !ervanls, su=son, assil!lla1 representatives, attomeys acthlg on his behalf, and on those

                                     ponons In aetive concert or participation with hlm. Tho bond posted by the Administratrix Is

                                     rcqulred to remain posted.

                                                                                                           JallO




      Confidential information may have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas




.ft,-<4/
   Sterling
                                ,_Q
                    G. Senechal Ill
                                                                             Deputy
                          06/08/2011 IIIID     ' ' 22   UX 7132243111 Lav Office                                                                             !ilOll/011

                            0610712011       10:59 lftclleH & Duff Attorneys at L!W                                                                     P.0111011

            r·J
            ~J
            C)
            Cl                                 2Jll
            Ci.                      SIGNBDan~~r ~~~~ ra.


                                                                                            ~4-···
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            til
            ,•'..
                                                                                                                                                 , !_   ••

                                                                                                      PilESiO!N<l                                 . ,. ;.
            ~~
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                                                                                                       ~~;~: ~.;·}.;:~: ;.: :·: :\, .
            C)                       APPROVED AS TO PO:RM:
            N
            r.o
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            i"'                                       Duff
            Ci                       TGXIS         . 06166880
                                     210 Mllln Street
                                     Rlohmond, 'IX       ?146~
                                     Tel. (281)341·1718
                                     FIX. ('281)341-SSl?
                    ~


                                                                                     ·.
                                     Atlomoy for Indopondont Admlnlsr:atrix
                    Ill

                                     :::§:~
                    0
                     I
                    ~
                    II!              DEAN M. BlUMROSEN,ESQ.      ./'\.
                     I               Statoll~rNo. 02'17900  . .:' ''i'•
                     ~                ~~~s!~~==~ay, Sui~~:~~.~··                     :J:r.:;:;:'j:>
                                      713.524.2225- Tolcphona · •8'        '• '.'!':•...
                                      713.524.5~70. Pao.~lmll                ··•.•.!
                                      Anomoy for Hoin f          ct Foltyn McAt'oo




                                                                                                                            IUiCORDER'8 III!MCIWIDIIII:
                                                                                                                     N.lhlllmo of ~nf•Uon,      ""ln-.nt-
                                                                                                                    lolnllo be tn.dequalt for lhl bul plla!Dgnplllo
                                                                                                                     nprod...UOO bocauot ollr.glbl!ty, ollt>or! or
                                                                                                                    pholo copy, dlocolorod popar, tla. All bloci<OU1I.
                                                                                           IOtllO                    tddlllona and o:llellgoo _ , """"' 1111111 """
                                                                                                                          lltlnoWrrlont- ftlod ond       .-od.




      Confidential information may have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas




ftr..J,J.
     Sterling G Senechal Ill
                                 Q                               Deputy
          (")
          ('i
          (l                              IZ/2212014    12:25~Pftfw,Pt
                                                                                                                                           P.0021003
          Cl
          u.
          m
          ("~
                                                                                                                        PROBATE COURT 1
          •'                                                                  CAUSE NO. 38..35-401
          U'l                       0
                                               INRE
                                    0                                                 §        IN THE PROBATE COURT
                                    0          JANeT F. McAFeE,                       g
                                    0.         Deaeued
          1,!')                                                                       G        NUMBER ONE
                                    (Q                                                I
          ""                                   ROSEMARY FOI.YN and                    I
          0
          (\j
                                    "'         JAKE FOLYN                             5
                                                                                      t
                                               v.                                     I       OF
          (\)                       Ill
          Cl                        ...        THE OMS GROUP, LLC and
                                                                                      G
                                    0
                                               WOODFOREST NATIONAL BANK,
                                                                                      t
          ~"                        (\J                                               §       HARRIS COUNTY, TEXAS
          C.I                       Ill        Defendanta                             §
                                    0
                                i
                                I
                                    ...                                    NOTICE OF ORAL HEARING
                                    0


                                                       Notice Ia hereby given lhat the following haa been set     tor   oral helllfng on
                                              Thun~day, January 8, 2015, at 11:00 a.m., In the Probate Court No. 1 of He(lia Coggty
                                              Texas, located at 201 Car.ollne stree~ e"' Floor, Houeton, Texas 17002:     ·     ;:   o;;
                                                                                                                         ~.~    l\
                                              1.       Motion to Quash Wrft1 of Gemlahment.                               """
                                                                                                                          ~J
                                                                                      Rlllpoctfully IUbmlltlld,
                                                                                     ANDERSON PFEIFFER, PC



                                                                                     By:      Ea1her Andeoon
                                                                                     SBN: 00792332
                                                                                     845 FM 617 Willi, Suite 200
                                                                                     Olcklrwon, Texaa T7e39
                                                                                     Oflice: 281.488.6535
                                                                                     Factlmllo: 281 .614.5206
                                                                                     Email: eatherGprobateguardlanshlp.o;om




                                                                                   HOTIOIOI-
                                                                                     ,.ttU




                  ~   EXHIBIT

                  !_c_




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas




A~ G Sterling G Senechal Ill
                                                              Deputy
                                    1212212014     1Z:25Mdcna!PIIIfa',PC

                                ......
           0)
           C)
                                                                                        Of OOU118el on the Pleading:
           !f1
                                                                                        hi :&zt;m :r'dr
                                                                                        Robert Tell'
                                                                                        Robert Telr, PLLC
           ....                                                                         &46 FM 617 Wwt, 1:11Ji111 200
           C)                                                                           Dlcldnson, Texllt 77539
           ('J                                                                          Ollloe: 832.3all.1191
                                                                                        Facelmlle: 832.560.2700
           co                                                                           Email: robiiPProl>alllguan!lenahlp.oom
           C)                                                                           Attorney. for Mr. Cherfea storer



                                                                           CERTIFICATE OF 8ERVTCI!

                                         .       I hereby certify that a true and oo~ copy cit the foregoing haa       been
                                                                                                                        fOIWIIrdlld
                                         to ~II partlae and/or cciun.,l or reOOid through our electronlo eervjco provider, oerttned
                                         mall, return reoelpt req~lld· l!nd/0r .faceimile on !hie 6?6? ~ day of DeOIIllber,
                                         2014.                         . .. .·      ..



                                                                                              Ealhe(Ande~on •

                                         oo:     Matthew E. Upman
                                                 Fauat Oppenheim LLP
                                                 468 Madlton Avenue                           VI• Eltclrpn!c hrvlct Proyld•r &
                                                 New Yo111, New Yoi1110022                    fllOflml!t 212-f71.f41Q
                                                 Dean M. Blumroeen, Eeq.
                                                 ~615 Southwett FI'88WIIy, SuHe 860           Yll Ef!ctron!c 8wry!ptt Provklar A
                                                 Houa1on Texaa 77027                          Ftctlm!lelfH2Hm!
                                               Woodfonnt National Bank,
                                               through their registered Bgent
                                               Jamee D. Orelbelbla
                                               26231 Grogan'• Mill Road, Sui111 100
                                               The Woodlanda, Texaa 77380                     Yl• CMBRR   9fN7tO,l. qbl~f!(I"·Uet l.Z


                                                                                ..,..   ..
                                                                                   . . . .J
                                                                                             _




     Confiden tial information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



o/~_Jd_                       Q                           Deputy
    Sterling G Senechal lit
          Tab6
Response to Charles Storer's
 Motion to Quash Writs of
       Garnishment
                                                                                                                     FILED
                                                                                                        1nt2015 2:19:49 PM
                                                                                                              Stan Stanart
                                                                                                              County Cieri<
                                                                                                             Harris County



                                                           NO. 396935-401                PROBATE COURT 1


                           ROSEMARY FOLTYN, Individually§              IN THE PROBATE COURT
                           AND JAKE FOLTYN, Individually§                       ONE
           O:l                     Plaintiffs           §
           '\t                                          §
           m
           C)                                           §
                                                        §
           ,..                                          §
           (,)                                          §                         OF
           L'J                                          §
           m
           C)
                           vs.                          §
                                                        §
                           THE GMS GROUP, L.L.C. AND §
                           WOODFOREST NATIONAL          §
                           BANK                         §              HARJUSCOUNTY,TEXAS
                                   Defendants

                                RESPONSE TO CHARLES STORER'S MOTION TO QUASH
                                            WRITS OF GARNISHMENT

                           TO THE HONORABLE JUDGE OF SAID COURT:

                                  COMES NOW, Rosemary and Jake Foltyn {hereinafter referred to as

                           "Garnishors") and files this Response to Charles Storer's Motion to Quash

                           Writs of Garnishment and, in support hereof, Gamishors would show the

                           Court the following:

                                                                  I.




                           Response to Motion to Quash Writs of
                           Garnishment                                                         Page 1




     Confidential infor mation may have been redacted from the document in compliance with the Public Infor mation Act.


A Cer tified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, T exas




A -<41 o
      Sterling G. Senechal Ill
                                                  Deputy
                                  1.     Plaintiffs/Garnishors are Rosemary and Jake Foltyn are

           Cl               underlying judgment creditors to the wrongful death case in this cause
           n.
           o:l              number.
           li:'
           o:l                    2.     Defendant/Garnishee, The GMS Group, L.L.C., is a limited
           Ci
           Ill              liability company doing business in Texas and may be served by serving its

                            registered agent, via certified mail, return receipt requested, Corporation

                            Service Company, D/B/A CSC -Lawyers Inco, 211 E. 71h Street, Suite 620,

                            Austin, Texas 78701.

                                   3.    Defendant/Garnishee, Woodforest National Bank is a privately

                            held bank doing business in Texas and may be served by personally serving

                            its registered agent, James D. Dreibelbis, 25231 Grogan's Mill Road, Suite

                             100, The Woodlands, Teas 77380.



                                   4.    On or about March 21,2014, this Court, in case number 396,935-

                             401 styled Rosemary Foltyn, Individually and as Independent Administratrix

                             ofthe Estate ofJanet Foltyn McAfee, Deceased; and Jake Foltyn, Individually

                             v. Kenneth Cooper McAfee entered a Judgment against Defendant, Kenneth

                             Cooper McAfee in the amount of $2,000,000.00, plus pre and post judgment

                             interest, plus costs of Court ("Judgment"). A true and correct copy of the


                             Response to Motion to Quash Writs of
                             Garnishment                                                          Page 2




      Confidential information may ha ve been redacted from the document in complia nce with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Ha rris County, T exas



A-<~d
   Sterling G. Senechal Ill
                             a                     Deputy
        --------------                           . . --




         C)                Judgment is attached to the Application for Garnishment as Exhibit "A" and
         (!)
          C)
          0                incorporated herein by reference for all purposes. This Judgment is just, due,
          0.
                           unpaid, and remains unsatisfied.

                                                     II. LACK OF STANDING

                                 5.     Charles Storer is the person who filed the Motion to Quash Writs

                           of Garnishment. Mr. Storer is not a party to the underlying case, nor is he a

                           party to the garnishment proceedings. He has not filed any pleading seeking
          C)
                           to intervene in this matter and thus, is not a party to these proceedings. Thus,

                           Mr. Storer has no standing to assert anything in this case. The Motion to Quash

                           should be denied on this basis alone.

                                                     III. MOTION TO ABATE

                                  6.    After a hearing, this court signed an Order on June 26, 2014,

                           compelling Kenneth McAfee to fully answer plaintiff's post judgment

                           interrogatories and produce all responsive documents that are responsive to

                           plaintiffs post-judgment request for production.            Subsequently, Mr.

                            McAfee's attorneys filed motions to withdraw and both did in fact withdraw.

                            At Mr. Bennett's hearing on his Motion to Withdraw he represented to the

                            court that Mr. McAfee had no assets to satisfy the underlying judgment.



                            Response to Motion to Quash Writs of
                            Garnishment                                                              Page 3




     Confidential inform ation may have been redacted from the document in complia nce with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



~44_ . G
    Sterling G. Senechal Ill
                                                 Deputy
                           Further, at no time did Mr. McAfee answer the post-judgment interrogatories
          i"l
          i.l
          Cl               or produce one single document pursuant to the Court's Order
          Cl.
                                 7.     Thus, Mr. McAfee is picking and choosing what court

                           proceedings he will decide to participate in. Mr. McAfee's attorneys withdrew

          1[1              and never provided the post-judgment discovery they were Ordered to
          t)
          (\I              produce. In an effort to circumvent the legal process, Mr. McAfee seeks to
          O:i
          Ci
                           avoid the court's June 26, 2014, Order and proceed directly to only

                           proceedings he wishes to partake, such as a Motion to Quash.

                                 8.     Had Mr. McAfee responded to the post-judgment discovery

                           Ordered by this Court, Plaintiffs would be in a much better position regarding

                           the characterization of Mr. McAfee's assets. This court vigorously protected

                           Mr. McAfee's Fifth Amendment right during the entire trial court proceeding.

                           While Mr. McAfee has and was granted all protections he was entitled, he is

                           not above the law, like any other judgment debtor. He is required to abide by

                           this Court's Orders as they pertain to the judgment entered against him.

                                 9.     Plaintiffs. request this Court abate any ruling on the Motion to

                           Quash the Writs of Garnishment until Mr. McAfee has complied with this

                           Court's June 26, 2014, Order compelling him to fully respond to the post-

                           judgment discovery.


                           Response to Motion to Quash Writs of
                           Garnishment                                                             Page4




     Confidential infor mation may have been redacted from the document in compliance wit h the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



_,1£;--<UL
      Stetiing G. Senechal Ill
                                Q                Deputy
                                          IV. ESTATE HAS CLAIMS AGAINST FUNDS

                           10.   Separate and apart from the wrongful death action and any assets

                           plaintiffs may be entitled to, the Estate of Janet Foltyn McAfee has claims

                           against the funds at issue in this garnishment proceeding. Rosemary Foltyn,

                           as Independent Administratrix of the Estate of Janet Foltyn McAfee has
          ()
                           asserted these claims in the probate cause number for this matter. Plaintiffs
          N
          Ill
          ()               request that the Court wait until those issues are litigated by the probate
          ....
          ()
                           attorneys before making any determination regarding any funds involved in

                           this matter.



                                  WHEREFORE, PREMISES CONSIDERED, Rosemary and Jake

                           Foltyn, request that the Motion to Quash Writs of Garnishment be denied;

                           further issue an Order that Charles Storer does not have standing ins this

                           matter and in the alternative, issue a stay of this matter until Mr. McAfee has

                           complied with this Court's June 26, 2014, Order compelling him to fully

                           respond to the post-judgment discovery, and other such relief to which

                           Gamishors may be justly entitled.




                           Response to Motion to Quash Writs of
                           Garnishment                                                               Page 5




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



~~A
  ~~:::::.J'di
          ~. ~Q~Deputy
       Stenrng G. Senechar Ill
                                                           Respectfully submitted,



                                                             By: Is/ Dean M. Blumrosen
                                                                        DEAN M. BLUMROSEN, ESQ.
                                                                        State Bar No. 02517900
                                                                                                                    ~
                                                                        4615 Southwest Freeway, Suite 850
                                                                        Houston, Texas 77027                        i
                                                                        713.524.2225- Telephone                     I
                                                                        713.524.5570- Facsimile
                                                                        Dblumrosenlaw@.nol.com
                                                                        ATTORNEY FOR PLAINTIFFS                    I
                                                                                                                   I
                                                                                                                   I
                                                       CERTIFICATE OF SERVCE                                        !
                                 I certify that a true and correct copy of this document has been
                           forwarded to all counsel of record through the electronic service provider
                                                                                                                    !
                                                                                                                    f
                                                                                                                    I
                           and/or via facsimile on this 71h day of January 201 S.
                                                                                                                    i
                                                             Is/ Dean M. Blumrosen
                                                             DEAN M. BLUMROSEN
                                                                                                                    l
                                                                                                                    [
                                                                                                                    r
                                                                                                                    Il
                           Response to Motion to Quash Writs of
                           Garnishment                                                              Page 6          I




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



-~h:,~
   · L:..::4,~
           ·'~ d -~Q~Deputy
       Ster11ng G Senechal Ill
                                                           NO. 396935-401

                           ROSEMARY FOLTYN, Individually§                   IN THE PROBATE COURT
                           AND JAKE FOLTYN, Individually§                            ONE
                                   Plaintiffs           §
                                                        §
                                                        §
                                                                     §
          Iii                                                        §
                                                                     §                    OF
                                                                     §
                           vs.                                       §
                                                                     §
                           THE GMS GROUP, L.L.C. AND                 §
                           WOODFOREST NATIONAL                       §
                           BANK                                      §      HARRIS COUNTY, TEXAS
                                   Defendants



                                  On the _ _ day of january, 2015, came on to be heard Charles Storer's
                                                                                                                     I
                           Motion to Quash Writs of Garnishment and after having considered the pleadings on

                           file and the arguments of counsel, is of the opinion that the Motion should be in all
                                                                                                                     !I
                           things, DENIED. It is further ORDERED that Charles Storer lacks standing to assert        l
                           claims in this matter on behalf of Defendant, Kenneth C. McAfee.

                                  In the alternative, the Motion to Quash is abated and shall not be heard until
                                                                                                                     I
                                                                                                                     !
                           Defendant, Kenneth McAfee, fully answers Plaintiffs' Post-judgment Interrogatories
                                                                                                                     I
                           and produces all documents that are responsive to Plaintiffs' Post-judgment Requests
                                                                                                                     ir
                           for Production.
                                                                                                                     I
                                                                                                                     l
                                                                                                                     l
                            Res ponse to Motion to Quash Writs of                                                    !
                                                                                                          Page 1
                            Garnishment                                                                              [
                                                                                                                     !'




     Confidential information may have been redacted from the document in complia nce with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, T exas
               trl                   SIGNED on the _day of _ _ ___. 2015.
               'I'\
               ~   .
               Ci
               ,.,
               '"'....
               ,,

                                                                JUDGE LOYD WRIGHT



               lfl
               ...
               0
               (\j
               o:l
               0




                                Response to Motion to Quash Writs of
                                Garnishment                                                       Page 2




         Confidential information may have been redacted from the document in compliance with the Public Information Act.


    A Certified Copy
    Attest: 9/29/2015
    Stan Stanart, County Clerk
    Harris County, Texas




·
    ..,h;44_ . Q
          Sterling G. Senechal Ill
                                                     Deputy
         Tab7
January 18,2015 Transcript
     r--------------------------------------------------------------------


 1                              REPORTER'S RECORD

 2                        TRIAL COURT CAUSE NO. 396,935

 3

 4

 5     IN THE ESTATE OF                    IN THE PROBATE COURT

 6

 7     JANET F. MCAFEE,                    NUMBER 1 (ONE)

 8

 9     DECEASED                            HARRIS COUNTY, TEXAS

10

11

12

13

14            HEARING ON MOTION TO QUASH WRITS OF GARNISHMENT

15

16

17

18

19         On the 8th day of January, 2015, the following proceedings

20     came on to be held in the above-tit          and numbered cause

21     before the Honorable Loyd Wright, Judge Presiding, held in

22     Houston, Harris County, Texas.

23         Proceedings reported by computerized stenotype machine.

24

25
                                                              2




 1                           APPEARANCES

 2

 3

 4   MR. DEAN MILES BLUMROSEN
     Bar Card Number: 02517900
 5   Law Offices of Dean Miles Blumrosen
     4615 Southwest Fwy Ste 850
 6   Houston, TX 77027-7162
     Telephone:  713.524.2225
 7

 8                                Counsel for Plaintiffs

 9

10

11   MS. ESTHER GARZA ANDERSON
     Bar Card Number: 00792332
12   Anderson Pfeiffer PC
     845 FM 517 Rd W Ste 200
13   Dickinson, TX 77539-2903
     Telephone:  281.488.6535
14

15                               Counsel for Char    Store,
                                 Power of Attorney for
16                               Charles Mcafee

17

18

19   MR. ROBERT 'ROB TEIR' TEIR
     Bar Card Number: 00797940
20   Robert Teir, PLLC
     845 FM 517 West, Suite 200
21   Dickinson, TX 77539-2903
     Telephone:  832.365.1191
22

23                               Counsel for Charles Store,
                                 Power of Attorney for
24                               Charles Mcafee

25
                                                                            3




 1                     (Proceedings commence.)

 2                     THE COURT:    Okay.   The Mcafee Estate.

 3                     MR. BLUMROSEN:     Good morning.     Happy New Year

 4   to you.

 5                     THE COURT:    Happy New Year.

 6                     MS. ANDERSON:     Good morning, Judge.

 7                     THE COURT:    Good morning.

 8                     MS. ANDERSON:     How are you doing?

 9                     THE COURT:    I'm good.

10                     MR. WATERS:     Good morning, Your Honor.

11                     THE COURT:    The coffee is cold, but I'm good.

12   All right.     So what, we have a

13                     MS. ANDERSON:     Yeah.     And I think --

14                     THE COURT:    -- garnishment?

15                     MS. ANDERSON:     Right.     I think we can sum up

16   this part.     Let me just show you.

17                     THE COURT:    Make announcements just to make

18   sure the court reporter --

19                     MS. ANDERSON:     Right.     Esther Anderson and

20   Robert Teir.    We represent Charles *Store, who is the Power

21   of Attorney for Charles Mcafee.

22                    MR. BLUMROSEN:      Good morning, Your Honor.

23   Dean Blumrosen on behalf of the Plaintiffs.

24                     UNIDENTIFIED MALE:        Good morning, s

25                     THE COURT:    Good morning.
                                                                        4




 1                     MS. ANDERSON:    And Judge, on this matter,

 2   Mr. Blumrosen and I have spoken.       And I think that we agree

 3   that as far as the writs, that there is no author        y to

 4   attach the I.R.A. account or the Social Security benefits.

 5   And in his response there's really no objection to what

 6   we've put forth.

 7        However, he does have insurance with regard to

 8   discovery, and I have volunteered to answer any questions

 9   that he has.   I'll put my client under oath, whatever it is

10   that he needs to be done.     But I don't think that that's an

11   issue for today, to -- to use this hearing to compel a

12   previous order of the Court with regard to discovery.        And

13   I'll let him speak to that.

14        But there's also one other issue, which is a notice

15   that was filed with the court yesterday evening by Ms. Duff,

16   and she is the attorney who represents the Estate, and

17   saying that she's not available for today.        One, she said

18   she didn't receive notice of today's hearing, and she's not

19   available for the hearing.

20        When I noticed the hearing, it was only as to the Writ

21   of Garnishment.     So it was only the two banks and Mr. --

22                     MR. BLUMROSEN:   Blumrosen.

23                     MS. ANDERSON:    I'm sorry.   I'm gonna leave

24   that right there (indicating) so I can read your name -- as

25   to Mr. Blumrosen, because they were the only parties on
                                                                       5




 1   the -- on the Writ.

 2        And so I'm ready to proceed with an argument if the

 3   Court needs one.   Like I said, there's no opposition to the

 4   basis of the law, which is that they're protected.       There

 5   are no exceptions to the Social Security benefits or the

 6   I.R.A. benefits.   One is governed by federal law; the other

 7   is governed by state law.

 8        As a matter of fact,    I don't even think the Court has

 9   any authority to deal with any of those according to the --

10   the federal law.   Everything is exempt from state and

11   federal judicial action.

12        And so we're asking for the writs to be quashed.      And

13   we can go through that in detail if you'd like.       I have my

14   client here, and we can prove up the records and prove that

15   the benefits are Social Security and I.R.A. funds.

16                  MR. BLUMROSEN:     And Your Honor,   I don't think

17   that would be necessary.     And I certainly appreciate them

18   coming in on this case.     As you know   's been going on for

19   almost    a little over four years, and it's hard to put

20   this into a vacuum the way that they're doing.

21        The issue that the Plaintiffs have, Your Honor, as

22   you're we'll aware, is we filed post-judgment discovery.

23   And before I go there, the first argument that I would make

24   to the Court, and it's in my response,       Mr. Store has no

25   standing to bring any claim in this proceeding.
                                                                          6




 1        He says he's Power of Attorney for -- I believe he says

 2   Charles Mcafee, which I'm not even sure who that is.       But

 3   maybe that's a typo, but that's also in the order.      But I

 4   don't believe -- they haven't intervened.

 5        They -- they appear to be making an appearance on

 6   behalf of someone who claims to have the Power of Attorney

 7   for Mr. Mcafee.     If that's the case, they should have

 8   intervened in that capacity, but they didn't do that.

 9        Substantively, on -- on her motion, I think she

10   represented to the Court accurately if, in fact, those funds

11   are his retirement account and if, in fact, those funds are

12   his Social Security benefits, then I'm       I'm not arguing

13   with that.

14        Where I have an argument, Your Honor, is we filed

15   post-judgment discovery after we got the $2 million verdict

16   against Mr. Mcafee.     And as you're well aware, they didn't

17   respond to it.     That's the point in time where the Defendant

18   has the ability to characterize his assets, to tell us what

19   he has, what the character of them is, and ask very detailed

20   questions about that.

21        As you're aware, Mr. Bennett and Mr. Forrest (phonetic)

22   both wanted to withdraw.     And what they said was, "We're not

23   getting paid.     We're not getting along with our client.      He

24   doesn't have any money.     We want to withdraw."   I objected

25   and we had a hearing on that, because there was pending
                                                                      7




 1   post-judgment discovery.

 2        And all of them asked about his assets, including his
 3   retirement benefits, everything characterizing all of his
 4   assets.   Well, the Court granted the Motions to Withdraw,
 5   but you also granted our Motion to Compel on June the 26th
 6   of 2014, ordering Mr. Mcafee to produce all documents,

 7   because they never filed any objections to it, and to answer
 8   the Interrogatories.
 9        Well, Mr. Mcafee has never answered any of the

10   Interrogatories that were ordered to be answered, all,

11   again, asking to characterize his assets.
12        Mr. Bennett, on July lOth, did respond to the Court's
13   order to -- the Request for Production.     And what he said in
14   every single Response to Request for Production is, "No
15   documents are available."     So I find it quite fanta     and

16   miraculous that when we then proceed to garnishment, all the
17   sudden, apparently Mr. Mcafee does have money to hire

18   counsel, he does have documents available to character
19   his assets.

20        So they then file their Motions to Quash the

21   Garnishments.   I assume that she's not here doing this of

22   her own free will.     I assume she's getting paid, which she

23   should get paid.
24        But as a judgment creditor of a man who's been

25   convicted of murder and who has a judgment against him, he
                                                                       8




 1   should be required to comply with all the civil rules as any

 2   other judgment defendant.     And part of that is to answer the

 3   post-judgment discovery.

 4           What I would ask the Court to do, if the Court should

 5   find Mr. Store has standing, which I don't believe he does,

 6   is to abate this hearing, force -- if they're entering on

 7   behalf of Mr. Mcafee,    force Mr. Mcafee to comply with the

 8   court order that was entered on June 26th and provide us

 9   with all of his assets, not just the ones that he wants to

10   protect and make sure that he can hire lawyers to protect

11   them.

12           He should be required to tell us -- and we've asked him

13   for transfers, because we -- we have suspicion that money

14   has been transferred.

15           Finally, and I put this in my response and I believe

16   Ms. Duff put this in her Notice to the Court that she filed

17   yesterday, and I've       I've shared this this morning:     As

18   the Court is aware, we have a wrongful death judgment, and

19   we're only entitled to some assets.

20           We don't believe we are entitled to his retirement

21   account as judgment creditors on a wrongful death case.

22   Ms. Duff has explained to me that the Estate does, in fact,

23   have claims against the retirement account.     I'm not sure

24   whether or not she has -- the Estate has claims on their

25   Social Security benefits or not.
                                                                         9




 1         But what she was fearful of, and I believe that's why

 2   she filed something yesterday and I put it in my response,

 3   we cert   nly don't want the Court to release any funds.

 4         We're not asking the Court to release any funds to us

 5   here today, but we don't want the Court to release the funds

 6   that are held in the retirement account or the Social

 7   Security account.    And as I   understand   , in the Estate

 8   they already have a freeze on those accounts, anyway.

 9         So what we would prefer to do is if they are making

10   appearance on behalf of Mr. Mcafee, not -- not Charles

11   Store, that they provide us with the documents that have

12   been ordered to provide, that would characterize his assets.

13         And at that point in time, once we have a global

14   picture of what his assets are,     including documents and

15   transfers and things of that nature, and that the Estate has

16   come to a resolution as to what they believe they're

17   entitled to of the retirement benefits and the Social

18   Security benefits, I believe we can agree that        on       on

19   most of it.

20         There are some assets at least that G.M.S. provided to

21   the Court, that I don't think are        a retirement account.

22   But again I     I don't think it's the appropriate time to

23   get into garnishment yet since they haven't told us what

24   the    assets are.

25                   MS. ANDERSON:    May I respond, Your Honor?
                                                                        10




 1                     THE COURT:     Yes.

 2                     MS. ANDERSON:     And just so that it's clear,

 3   we do represent Mr. Store as the agent for Mr. Mcafee only,

 4   not Mr. Mcafee directly.        With regard to standing, we

 5   believe that the agent does have standing.        Before filing

 6   this, we filed an entry of appearance in this cause.

 7   There -- there's nothing to intervene in, because there

 8   no pending action.

 9           My understanding is that the wrongful death suit is

10   over.     There was a final judgment.     They were awarded

11   damages in the millions of dollars.        So there    there's

12   nothing to intervene in.

13           But I did want y'all to know that we were here and were

14   open to working with you, and so there was an Entry of

15   Appearance filed.     And there was no objection to that Entry

16   of Appearance.     We then filed the Motion to Quash the Writs

17   of Garnishment.

18           Moving past that, I mean, I've explained to

19   Mr. Blumstrum (sic) I've hoped that he was happy that we

20   were here, because we're more than willing to help and get

21   everything resolved.     But that's not what today is about.

22   That's a separate issue.

23           Mr. Blumrosen filed these Writs of Garnishment.       He

24   sent them to the banks.        We're responding to the Writ of

25   Garnishment, and that's the only thing that's before
                                                                     11




 1   Court.

 2        He agrees that they are not entitled to the I.R.A.

 3   assets or the Social Security assets, so we expect that the

 4   Court will enter the order quashing the two Writs.

 5        With regard to the discovery -- and keep in mind,

 6   Judge, that we only learned of these things yesterday upon

 7   receiving the two -- the filings.    I think it was

 8   mid-afternoon and      and yesterday evening that we were

 9   doing this.

10        So in looking at the timeline as to what happened in

11   the underlying case, it is correct that there was

12   post-judgment discovery served by Mr. Blumrosen for the

13   Plaintiffs, not the Estate.

14        With that, the -- there were two attorneys who

15   represented Mr. Mcafee, and both filed a Motion to Withdraw.

16   This was after the discovery was served.    Then there was an

17   objection to that because-- and this is very important--

18   in the Application to Withdraw, Mr. Mcafee did not put in

19   that there was outstanding discovery.    He listed other

20   things, but he didn't put that in.

21        Mr. Blumrosen objected to that, but, of course,

22   Mr. Mcafee is in prison and isn't hearing all of this.      I

23   don't know whether the attorney ever communicated that to

24   him or not.   Our agent's position is that he knew nothing

25   about the discovery.
                                                                      12




 1         After that, the second attorney        the Court let him

 2   go.   Then the second attorney filed another Application to

 3   Withdraw.    And in that order, Judge, it was written that any

 4   future notices needed to go directly to the Defendant.

 5         And so there has been no communication by Mr. Blumrosen

 6   or his office, that I'm aware of, and I'm sure you'll

 7   correct me if I'm wrong, directly to the Defendant saying,

 8   "     , you -- there's this       .   You haven't complied with

 9   the order.    Give me responses to the discovery."

10         There has been no action on Mr. Blumrosen's part to

11   attempt to follow up on the discovery with Mr. Mcafee.

12                    THE COURT:   So what have     what have you

13   filed in this cause,   just the Motion to Quash?

14                   MS. ANDERSON:    A Motion to Quash the two

15   Writs.   That's it.

16                    THE COURT:   And where's the Power of

17   Attorney?    Has that ever been produced or referenced

18   well, I mean, I know it's referenced, but where is it?

19                   MS. ANDERSON:    And quite frankly,   I didn't

20   ·think that my or Mr. Store's word would be questioned.        But

21   yes, we'll -- we'll certainly --

22                    THE COURT:   Oh, yeah.

23                   MS. ANDERSON:    -- show

24                    THE COURT:   Oh, yeah.

25                   MS. ANDERSON:    We'll certainly show
                                                                         13




 1                    THE COURT:    And not -- not that it's you.

 2                    MS. ANDERSON:     -- a copy.

 3                    THE COURT:    But I mean, you're -- I mean,

 4   you're coming into court on a basis of a certain document.

 5   I mean, I

 6                    MS. ANDERSON:     And Your Honor,   I understand

 7   that.   It's just this is --

 8                    THE COURT:    You know,   I don't think -- you

 9   know, you're an attorney and everybody is a professional and

10   all that, but      but I don't think I could operate if I just

11   sat there and said, "Okay.       I believe everybody and

12   everything everybody says, and you don't have to support

13   some of the things" -- I mean, when -- have you ever --

14   when's the first time you heard of Mr. Store?

15                    MR. BLUMROSEN:     I've heard of Mr. Store

16   because Mr. Bennett, in          hearing, referenced him.

17                    THE COURT:    He was a previous person

18   referenced and

19                    MR. BLUMROSEN:     He referenced him, but

20   I'll    I'll just leave it at that.

21                    THE COURT:   Okay.

22                    MR. BLUMROSEN:     I've heard of Mr. Store

23   because I've been working on the case for four years.

24                    THE COURT:   Well,   I

25                    MR. BLUMROSEN:     I've known for a long time
                                                                         14




 1   who he was.

 2                     THE COURT:   Well, here's my --

 3                    MS. ANDERSON:    And Judge, we filed this a

 4   pretty good ways back and gave plenty of notice, and then I

 5   get this yesterday afternoon, you know, this standing

 6   question.     I -- you know, had he just called or asked

 7                     THE COURT:   Well,    I mean,   I'm   I'm inclined

 8   to abate this for two weeks and see what y'all can discuss

 9   with each other.     I mean, it seems to me Ms. Anderson may

10   actually facilitate something that you haven't learned yet;

11   I mean, may actually help you get what you should have

12   gotten under your Motions to Compel.

13                    MS. ANDERSON:         Well -- and Your Honor, so

14   that we don't come here and just talk about it again in two

15   weeks --

16                    THE COURT:    Because --

17                    MS. ANDERSON:          I will let the Court know

18   that I have told Mr. Blumrosen everything I have.          One, the

19   Estate has filed four inventories.         They have all of the

20   information.    My client knows of nothing else.

21        And -- and I was saddened to hear you make the

22   representation that we say we don't have anything, yet we

23   filed something with our Writ.

24        I explained to him that my client went to the bank, as

25   the agent, and obtained those documents.          He didn't have any
                                                                       15




 1   documents, ever, to turn over, and he knew that before he

 2   just said that to the Court, so -- that he didn't --

 3                   THE COURT:    Well, I'm going to --

 4                   MS. ANDERSON:     -- and he doesn't.

 5                   MR. BLUMROSEN:     Just to make sure that you

 6   understand, I'm talking about the previous attorneys said

 7   they didn't have any documents.       I wasn't referencing you.

 8                   MS. ANDERSON:     Uh-huh.

 9                   MR. BLUMROSEN:     I want to make sure you

10   understand that.

11                   THE COURT:    Okay.

12                   MR. BLUMROSEN:     I'm just talking about --

13                   MS. ANDERSON:     But it showed up in the

14   document that I filed.

15                   MR. BLUMROSEN:     I'm just simply saying that

16   the Court was here when Mr. Bennett said, "We don't have any

17   documents.   We don't have any discovery.      We have nothing."

18   And I just find it amazing that apparently, Mr. Mcafee has

19   money to pay new attorneys.      And when they need documents,

20   you -- you -- I understand Mr. Store went to the banks and

21   got the documents.

22                   THE COURT:    Well, it --

23                   MS. ANDERSON:    Well, let -- and let me

24   just --

25                   THE COURT:    Aside --let's go backtrack.       It
                                                                          16




 1   seems to me there ought to be some kind of Motion to Enter

 2   Appearance on Mr. Store's behalf that sort of explains,

 3   maybe even verified, how he is offici        ly involved in all

 4   this, how he is now standing in the shoes of Mr. Mcafee.

 5         And then secondarily there's a         there's a $2 million

 6   judgment, and Mr. Mcafee is going to do everything he's

 7   required to do to produce documents or answer for one way or

 8   the other about what his assets are and what the

 9   transactions have been, what he's been involved in.

10         There's going to be full disclosure.         I don't know

11   how     I mean, it has been a four-year --

12                   MS. ANDERSON:    Well, and here

13                   THE COURT:       ordeal.

14                   MS. ANDERSON:    --here's          here's what can

15   happen, though, after this hearing -- I've made            clear

16   that I represent the agent.     And if it's

17                   THE COURT:    I know.

18                   MS. ANDERSON:    And       and

19                   THE COURT:    But you're         you're saying that

20   as though it somehow insulates you from

21                   MS. ANDERSON:    No, no, no.

22                   THE COURT:       the fact that he is connected

23   to a guy convicted of murder, with a $2 million judgment,

24   civil judgment against him.

25                   MS. ANDERSON:    I'm not here to --
                                                                      17




 1                     THE COURT:   It doesn't.      I mean --

 2                     MS. ANDERSON:   -- retry that issue.

 3                     THE COURT:   -- if you're going to stand in

 4   those shoes, I'm going to treat you as though he was

 5   Mr. Mcafee, essentially.

 6                     MS. ANDERSON:   Okay.     And I don•t

 7                     THE COURT:   If that's --

 8                     MS. ANDERSON:   I don't have a problem with

 9   that, Judge.     But I made an entry of appearance with regard

10   to the only thing that was pending in this court, which were

11   the two Writs of Garnishment.

12                     THE COURT:   Right.     And    and the

13   garnishment --

14                    MS. ANDERSON:    Okay.     And so that's what I --

15                     THE COURT:   -- was not necessarily -- I don't

16   think    maybe       correct me if I'm wrong, but when you did

17   it, you didn't say, "I'm trying to garnish Social Security

18   and I.R.A. benefits."

19                    MR. BLUMROSEN:    No, Your Honor.

20                    MS. ANDERSON:    We had no       we know we didn't

21   do it, Judge.

22                     THE COURT:   So he -- he --

23                    MS. ANDERSON:    We're not here to --

24                     THE COURT:   No, but he's -- so you're

25   saying -- I think you're telling me that all these accounts
                                                                         18




 1   are either Social Security or I.R.A.

 2                    MS. ANDERSON:     No.

 3                    UNIDENTIFIED MALE:      Not all, Your Honor.

 4                    MS. ANDERSON:     No.

 5                    THE COURT:     Okay.    So then why is his Writ --

 6                    MS. ANDERSON:     Judge, I'm not

 7                    THE COURT:     -- not good as to these

 8   non-exempt assets?

 9                    MS. ANDERSON:     Well, because in our order --

10   and we asked if you wanted the order ahead of time and were

11   instructed to just bring it.       But we went ahead and filed

12   one yesterday.    It only talks about the Social Security

13   account and the I.R.A.    We have no claim, under the Wr

14   to the other accounts.    We know that they are attachable.

15        All I'm talking about are two accounts, the Social

16   Security and the I.R.A.       And I -- I -- I thought -- you

17   know, in the Motion, it only talks about Paragraph A as a

18   Social Security account and Paragraph B is the I.R.A.

19   account.   Those are the only two ones.

20        And if I need to make it clearer, I certainly would --

21   would do that.    I put the G.M.S. account in an Individual

22   Retirement Account that qualifies for the end -- end --

23   federal income tax deferral.

24                    THE COURT:     So what you're -- and just to

25   make it clear, what G.M.S. filed with the Court           and the
                                                                       19




 1   last page has these three accounts on it, one of them is the

 2   228,000 --

 3                     MS. ANDERSON:   Uh-huh.

 4                     THE COURT:      which is the retirement

 5   account.     The other one is the 6,694, which I don't believe

 6   is a retirement account.

 7                     MS. ANDERSON:   And we have no claim --

 8                     THE COURT:   And the other one is the

 9   $1600.00, which I don't bel         is a retirement account,

10   either.    And so that -- I don't think those are at issue.        I

11   think we are eventually going to            those.

12         But one issue that the Court has hit on, that also

13   you've referenced our conversations in the hallway.         You

14   know, you had also referenced if we're --you know, you're

15   here only on the garnishment.      You're here for that only.

16         And -- and the Court has hit on exactly what our

17   problem is.    You know, she wants to make an appearance on

18   behalf of the agent, on behalf of Mr. Mcafee, but "I don't

19   want to have to answer all these other discovery things that

20   are" -- you know, to say that there's not an ongoing case,

21   we have an ongoing case that she has intervened in -- well,

22   hasn't intervened in but has filed a Notice of Appearance

23   in.   The ongoing case is post-judgment discovery in this

24   matter.

25                    MS. ANDERSON:    And Judge --
                                                                         20




 1                   THE COURT:     And so what I --

 2                   MR. BLUMROSEN:     Is that really your position,

 3   that you're just here on this garnishment?

 4                   MS. ANDERSON:     Until yesterday, the

 5   garnishment is the only thing

 6                   UNIDENTIFIED MALE:      That's (inaudible)

 7                   MS. ANDERSON:     -- that I knew about          excuse

 8   me?   What did you say?

 9                   UNIDENTIFIED MALE:      That -- that's

10   (inaudible)

11                   THE COURT:     Just talk to me.

12                   MS. ANDERSON:     I'm     I'm trying to listen to

13   him, too, Judge.   The only thing that I knew about were the

14   two citations on the Writs of Garnishment.         That is all that

15   is addressed in the Motion.      That's all that's addressed in

16   the order.

17         Now, yesterday afternoon and early evening, we received

18   a response from Mr. Blumrosen and the other document from

19   the estate attorney.      So we looked into it.

20         What I'm saying is that, you know, we talk about, "How

21   does he have money to pay me," which is really none of

22   anyone's bus    ss, but I'm going to address it because it

23   puts a false light.
24         Mr. Mcafee is not paying me.      Irve not been paid

25   anything from Mr. Mcafee's assets.      Okay?     So he's not
                                                                              21




 1   paying.     He doesn't have access to any money.            And so I was

 2   retained by the agent, with his funds,             to address a

 3   particular issue.        And so when I'm saying

 4                     THE COURT:        Wow.

 5                     MS.    ANDERSON:     -- "How can I come into this"

 6   or --

 7                     THE COURT:        Gosh.    That just --

 8                     MS.    ANDERSON:           "How am I going to take

 9   over this whole project and solve the problems of the world

10   and be as generous as I'm being, if there's no money to pay

11   me 11

12                     THE COURT:        Well,    I mean, it just -- you

13   know,    I don't know.     It just seems like kind of cherry

14   picking where you want to be and where you don't want to be.

15   And -- and again,       I think       actually,    I think there should

16   be a Motion to Show Authority, and we should address all

17   that       that issue about your client's standing to be here

18   at all.

19           So that's why I want to abate this.           If y'all want to

20   talk in the next two weeks, I'm not               I'm just going to put

21   it on hold.    And y'all can talk and decide and figure out

22   where everybody stands.           And then maybe you can address this

23   issue about what your involvement really will be and the

24   Power of Attorney's authority to even be here.

25                     MS. ANDERSON:        And      and you know -- and
                                                                        22




 1   if -- and if we're

 2                     THE COURT:   And so I --

 3                     MS. ANDERSON:         not involved --

 4                     THE COURT:   -- that's what I'm doing.

 5                     MS. ANDERSON:   Judge, if we're not involved,

 6   and that's fine, the Court does have these documents before

 7   it.     It's clear under the federal and state law.        So I mean,

 8   it could be --

 9                     THE COURT:   Well,    I don't think --

10                    MS. ANDERSON:          that the problems --

11                     THE COURT:      we have any argument about

12   that.     I'm just--

13                    MS. ANDERSON:    Right.

14                     THE COURT:      saying that --

15                    MS. ANDERSON:    So if we're not involved,

16   the      the issues don't get resolved.

17                     THE COURT:   But the garnishment is good as to

18   non-exempt assets.

19                    MS. ANDERSON:    That's all we're looking for,

20   two accounts.

21                     THE COURT:   And so --

22                    MS. ANDERSON:    I mean, that's not going to

23   change now or two weeks from now or two years from now, no

24   matter what the discussions are.

25                     THE COURT:   Right.    But when I --when I --
                                                                    23




 1   it's not a complete quash if -- if certain assets are --

 2                   MS. ANDERSON:   I'm not asking--

 3                   THE COURT:   -- seizable.

 4                   MS. ANDERSON:   -- for a complete quash,

 5   Judge.

 6                   THE COURT:   Okay.

 7                   MS. ANDERSON:   And     and if I've not made

 8   that clear, then I'll look at it again.

 9                   THE COURT:   But it -- let me look at your

10   order.   Frankly, I'd rather -- because you seem to be saying

11   that you have this intention to cooperate in terms of

12   enlightening Mr. Blumrosen about Mr. Mcafee's assets, maybe

13   I'm misstating that.

14        But I think that's -- that's the first impediment, is

15   for -- for Mr. Blumrosen to have an understanding, and even

16   the Executor or Administrator of the Estate, to have a

17   complete understanding about what potential assets are there

18   and what belongs to the Estate or what would be available,

19   that Mr. Mcafee owns, to satisfy a $2 million judgment --

20                   MS. ANDERSON:   I think it

21                   THE COURT:   -- on behalf of the parents.

22                   MS. ANDERSON:   Yeah.   I understand using that

23   as leverage.   You know, going two weeks, not signing the

24   Writ, is leverage, so I'll do that.

25                   THE COURT:   No, I don't -- I'm not trying to
                                                                           24




 1   use it as leverage.       I'm-- four years and you --you know,

 2   like you said, you just walked in here and that's                    But

 3   I mean, four years have gone by.           Is      four years?

 4                       MR. BLUMROSEN:     She was killed in May of

 5   2010.

 6                       THE COURT:     And what was the judgment       when

 7   was the judgment entered, though?

 8                      MR. BLUMROSEN:      April of 2014.

 9                       THE COURT:     Okay.   So judgment April 2014,    I

10   guess we'll be pushing-- or getting close to a year pretty

11   soon.

12                      MS. ANDERSON:      And -- and let me just say --

13                       THE COURT:     But, I mean, nothing is -- you

14   have a guy sitting in prison, who's sort of insulated

15   himself from disclosure for a judgment that was based on an

16   act of murder.      And I mean,     it's offensive.     It's extremely

17   offensive to me.

18           I mean,   I want -- I've       I've told everybody this:     I

19   mean, I'm a full disclosure guy.           Put the cards on the

20   table, and what's there is there.          And I      I think

21   Mr. Blumrosen is entitled to know all transactions, all

22   things that Mr. Mcafee may have orchestrated or not relating

23   to his assets.

24                      MS. ANDERSON:      And I agree.

25                       THE COURT:     And he's in the dark.    He's been
                                                                                25




 1   in the dark, and he continues to be in the dark, except now

 2   we know there are two exempt assets.

 3                    MS. ANDERSON:    Here -- here's the deal,

 4   Judge:     If he has no money, he can't afford me to help him.

 5                     THE COURT:   I know.

 6                    MS. ANDERSON:    If -- and if the Writ --

 7                     THE COURT:   I get      ;   I get it.    But now

 8   you're coming in on a --

 9                    MS. ANDERSON:    But if the Writ is granted --

10                     THE COURT:   -- on the certain protective

11   basis for an individual who claims to have a Power of

12   Attorney, and you're going to sort of say,          "I can         I can

13   come in and cherry pick when I'm going to respond and when

14   I'm not going to respond.      But if you want something else,

15   I'm going to stand in the shoes of Mr. Mcafee for this, but

16   I'm not going to stand in his shoes for that.             I'm just

17   going to kind of" --

18                    MS. ANDERSON:    Well --

19                     THE COURT:   -- "cherry pick where I want to

20   be."

21                    MS. ANDERSON:    Well, to make           clear,

22   Judge --

23                    THE COURT:    I -- I    just don't -- if the Power

24   of Attorney says that he has full authority to stand in the

25   shoes of Mr. Mcafee,    then that's the way         's going to be.
                                                                           26




 1                    MS. ANDERSON:      Yeah.     And I need the Court to

 2   understand I have not cherry picked anything.

 3                    THE COURT:   I'm -- look, it's -- yeah, you

 4   have, but I don't -- I'm not saying --

 5                    MS. ANDERSON:      I didn't even know about

 6   this

 7                    THE COURT:         there's something nefarious --

 8                    MS. ANDERSON:            until he filed yesterday.

 9                    THE COURT:   I'm not saying there's something

10   nefarious in what you did or anything.           But I'm saying as I

11   look at it right now, that either he's --he's -- either

12   the Power of Attorney is all in or he's all out.           That's my

13   position.

14                    MS. ANDERSON:      Okay.     So --

15                    THE COURT:   So

16                    MS. ANDERSON:      Do you want a revised order or

17   not?

18                    THE COURT:   No.     I    just want to abate it for

19   two weeks, and then y'all -- I'm going to ask y'all to come

20   back and we'll sort of call it a status report.

21                   MR. BLUMROSEN:       Thank you, Your Honor.

22                    THE COURT:   All right.

23                   MS. ANDERSON:       And in the meantime       in the

24   meantime,   I assume the Writs will just float?         I mean,

25   you're not going to go push to collect on them.
                                                                          27




 1                   MR. BLUMROSEN:    Absolutely not.      I wouldn't

 2   do that.

 3                   THE COURT:   Okay.      So on the record --

 4                   MR. BLUMROSEN:    No.

 5                   THE COURT:       we're just maintaining status

 6   quo for two weeks.   We're going to see if there's any

 7   first of all, you're going to have to clarify your authority

 8   as to this case and this matter, and then y'all can

 9   communicate as you choose.

10                   MS. ANDERSON:    And i f - - and if it's -- just

11   so that you understand, because I know what I'm hired for.

12                   THE COURT:   I know.     I'm not      I'm not

13   really crude.   I'm just saying there's going to be - -

14                   MS. ANDERSON:    Well, I mean, there

15                   THE COURT:   I think, from my perspective --

16                   MS. ANDERSON:    I may not be here in two

17   weeks

18                   THE COURT:       it's going to --

19                   MS. ANDERSON:        is what I'm saying--

20                   THE COURT:       be all in or all out.

21                   MS. ANDERSON:        you know.     Right.   All in

22   or all out.

23                   THE COURT:   And so you're going to have to

24   figure out where you stand, too.

25                   MS. ANDERSON:    As long as y'all understand
                                                                       28




 1   that --

 2                  THE COURT:     Okay.

 3                  MS. ANDERSON:           that I'm, you know --

 4                  THE COURT:     And       and I

 5                  MS. ANDERSON:        -- with no money.    So --

 6                  THE COURT:     I understand.

 7                  MR. BLUMROSEN:        To make sure it's clear on

 8   the record, I have no intention of doing anything on these

 9   Writs until we have an order from the Court.

10                  MR.   TEIR:   All right.     Thank you.

11                  THE COURT:     Thank y' all.     Thank y'all for

12   coming.

13                  (Proceedings concluded. )

14

15

16

17

18

19

20

21

22

23

24

25
                                                                            29




 1   STATE OF TEXAS

 2   COUNTY OF HARRIS

 3

 4               I, Sheryl E. Stapp, Deputy Official Reporter in and

 5   for the Probate Number 1 Court of Harris County, State of

 6   Texas, do hereby certify that the above and foregoing contains

 7   a true and correct transcription of all portions of evidence

 8   and other proceedings requested in writing by counsel for the

 9   parties to be included in this volume of the Reporter's Record

10   in the above-styled and numbered cause, all of which occurred

11   in open court or in chambers and were reported by me.

12          I further certify that this Reporter's Record of the

13   proceedings truly and correctly reflects the exhibits, if

14   any, offered, admitted, and/or requested by the respective

15   parties.

16         I further certify that the total cost for the

17   preparation of this Reporter's Record is $ 225.00               and was

18   paid by            ftnderson Pfeiffer, PC.

19         WITNESS MY OFFICIAL HAND on this the            _4th    day of

20   ======~A~u~g~u~s~t=============='    2015.
21

22
                                         SHERYL E. STAPP, C.S.R., R.P.R.
23                                       Texas C.S.R. #6227 -- Exp. 12/31/16
                                         Deputy Official Court Reporter
24                                       Probate Court Number One
                                         201 Caroline, 6th Floor
25                                       Houston, Texas 77002
                                         Telephone:  713-368-6700
                                               18/13 18/18 18/19 18/2118/22 19/5 19/6         August [1] 29/20
$                                              19/9                                           authority [6] 4/3 5/9 21/I6 21/24 25/24 27n
 $1600.00 [1] 19/9                            accounts [6] 9/8 17125 18/14 I8/15 19/1         available (5] 4/17 4/19 7/15 7/18 23/18
 $2 [4] 6/15 16/5 16/23 23/19                  22/20                                          awarded [1] 10/10
l$2 million rtl 6/15                          accurately (1] 6/10                             aware f51 5/22 6/16 6/2I 8/18 12/6
                                              act [1] 24/16
 1
                                              action [3] 5/1110/8 12/10                       B
 'ROB fll 2/19                                actuaUy [3] 14/10 14/11 21/15                   back [2] 14/4 26/20
                                              address [4] 20/22 21/2 21/16 21/22              backtrack [1] 15/25
 0                                            addressed [2] 20/15 20/15                       bank [1] 14/24
 00792332 (1] 2/11                            Administrator [1] 23/16                         banks [3] 4/2110/24 15/20
 00797940 [1] 2/19                            admitted [1] 29/14                              Bar [3] 2/4 2/11 2/19
 02517900f1l 2/4                              afford [1] 25/4                                 based [1] 24/15
                                              after [4] 6/15 11116 12/116/15                  basis [3] 5/4 1314 25/11
 1                                            afternoon [3] 1118 14/5 20/17                   be [29] 1/20 4/10 5/12 5/17 6/5 7/10 8/1 8/12
 lOth [1] 7/12                                again [5] 7/119/2214/14 21/15 2318               12/20 16/116/10 21/10 21/14 21/14 21/16
 12/31/16 (1] 29/23                           against [4] 6/16 7/25 8/23 16/24                21/17 21/23 21/24 22/8 23110 23/18 24/10
116 rtl 29/23                                 agent [6] 10/3 10/5 14/25 16/16 19/18 21/2      25/1 25/20 25/25 27/13 27/16 27/20 29/9
12                                            agent's [1] 11/24
                                              agree [3] 4/2 9/18 24/24
                                                                                              because [14] 4/25 6/25 1n 8113 ton 10120
                                                                                               11/17 13/16 13/23 14/16 18/9 20/22 23/10
 200 [2] 2/12 2/20                            agrees [1] 11/2                                 27111
 201 [1] 29/24                                ahead [2] 18/10 18/11                           been [13] 5/18 7/24 8/14 9/12 12/5 12/10
 2010 [1] 24/5                                all [34]                                        12/17 13/2316/9 16/9 16/1120/24 24125
 2014 [3] 7/6 24/8 24/9                       almost [1] 5/19                                 before [6] 1/21 5/23 10/5 10/25 15/1 22/6
 2015 [2] 1/19 29/20                          along [1) 6/23                                  behalf [8] 3/23 6/6 8/7 9/10 16/2 19/18 19/18
 225.00 (1] 29/17                             already [1] 9/8                                 23/21
 228,000 [1] 19/2                             also [5] 4/14 6/3 7/5 19/12 19/14               being [1] 21/10
 26th [2] 7/5 8/8                             am [1] 21/8                                     believe [12] 6/I 6/4 8/5 8/I5 8/20 9/1 9/16
 281.488.6535 (1] 2/13                        amazing [1] 15/18                               9/18 10/5 13/11I9/5 19/9
 2903 f21 2/13 2/2I                           and/or [1] 29/14                                belongs [ 1] 23/18
                                              ANDERSON [5] 2/11 2/12 3/19 14/9 29/18          benefits [10] 4/4 5/5 5/6 5/15 6/12 7/3 8/25
 3                                            announcements [1] 3/17                          9/17 9/18 17/18
                                              another [1] 12/2                                Bennett [4] 6/21 7/12 13/1615/16
 4                                            answer [5] 4/8 1n 81216n 19/19                  BLU:MROSEN [15] 2/4 2/5 3123 4/2 4/22
                                              answered [2] 7/9 7/10                           4/2510/23ll/1211/2112/514/18 20/18
 4615 (1] 2/5                                 any [19] 4/8 5/9 5/9 5/25 6/24 7n 7/9 8/1 9/3   23/12 23/15 24121
 4th ftl 29/19                                 914 1213 14125 15n 15/16 15/17 2111 22111      Blumrosen's [1] 12/10
s                                              27/6 29/14
                                              anyone's (1] 20/22
                                                                                              Blumstrum [1] 10/19
                                                                                              both [2] 6/2211/15
 517 f21 2/12 2/20                            anything [5] 14/22 20125 26/2 26/10 28/8        bring [2] 5/25 18/11
 6                                            anyway [1] 9/8                                  business rn 20/22
 6,694 [1] 19/5
                                              apparently [2] 7/17 I5/18
                                              appear [1] 6/5
                                                                                              c
 6227 [1] 29/23                               appearance [9] 6/5 9/10 10/6 10/15 10/16        C.S.R (2] 29/22 29/23
 6700 (I] 29/25                                I6/2 17/9 19/17 19/22                          call [1] 26/20
 6th rn 29/24                                 APPEARANCES [1] 2/1                             called [1] 14/6
 7                                            Application [2] 11/18 12/2                      came [1] 1/20
                                              appreciate (1] 5/17                             can [14] 3115 4/24 5/13 5/14 8/10 9/1814/8
 713-368-6700 [1] 29/25                                                                        16/14 21/5 2I/21 2I/22 25/12 25/12 27/8
                                              appropriate [1] 9/22
 713.524.2225 (1] 2/6                                                                         can't (I] 25/4
                                              April [2] 2418 24/9
 7162 [1] 2/6                                                                                 capacity [1] 6/8
                                              are [26] 3/8 5/5 5/15 6/11 6/11 7/15 8120 9/6
 77002 [1] 29/25                                                                              Card [3] 2/4 2/11 2/19
                                               9/9 9/14 9/20 9/21 9/24 11/2 16/8 18/118/14
 77027-7162 [1] 2/6                                                                           cards [1] 24/19
                                               18/15 18/19 19/10 1911119/20 22/24 23/1
 77539-2903 £2l 2/13 2/21                                                                     Caroline [1] 29/24
                                               23/17 25/2
 8                                            arguing [1] 6/12                                case [9] 5/18 6n 812111/11I3/23 I9/20
                                              argument [4] 5/2 5/23 6/14 22/11                 19/2I 19/23 27/8
 832.365.1191 [1] 2/21                                                                        cause [5] 1/21/20 10/612/13 29/10
                                              as [32]
 845 (2] 2/12 2/20                                                                            certain [3] 13/4 231125/10
                                              Aside [I] 15/25
 850 [1] 2/5                                                                                  certainly (5] 5/17 9/3 I2/21I2/25 18/20
                                              ask [3] 6/19 8/4 26/19
 8th rtl I/19                                                                                 certify [3] 29/6 29112 29/16
                                              asked (4] 7/2 8/12 14/618/10
 A                                            asking [4] 5/I2 7111 9/4 23/2                   chambers [1] 29/11
                                              assets [22] 6/18 7/2 7/4 7/11 7/19 8/9 8/19     change [I] 22/23
 abate [4] 8/6 14/8 21/19 26/18                                                               character [1] 6/19
                                               9/12 9/14 9/20 9/2411/3 1113 16/8 18/8
 ability [1] 6/18                                                                             characterize [4] 6/18 7/117/18 9/12
                                               20/25 22/18 23/I 23/12 23/I7 24123 25/2
 about [20] 6/20 7/210/2111/2514/1415/6                                                       characterizing [I] 7/3
                                              assume (3] 7/21 7/22 26/24
  15/12 16/8 18/1218/15 18/17 2on 20/13                                                       Charles [8] 2/I5 2/16 2/23 2/24 3/20 3/21
  20/20 21/17 21/23 22/1123/12 23/17 26/5     attach [1] 4/4
                                              attachable [1] 18/14                             6/2 9/10
 above [3] 1/20 29/6 29/10                                                                    cherry [4] 21/13 25/13 25/19 26/2
                                              attempt [1] 12/11
 above-styled [1] 29/10                                                                       choose [1] 27/9
                                              attorney (15] 2/15 2/23 3/214/16 6/1 6/6
 above-titled [I] 1/20                                                                        citations [I] 20/14
                                               11/23 12/112/2 12/17 13/9 20/19 25/12
 Absolutely [1] 27/1                                                                          civil (2] 8/116/24
                                               25/2426/I2
 access [1] 21/1                                                                              claim [3] 5/25 IS/13 19n
                                              Attorney's [1] 21/24
 according [1] 5/9                                                                            claims [4] 6/6 8/23 8/24 25/11
 account [15] 4/4 6/11 8/21 8/23 9/6 917 9121 attorneys  [3] 11/14 15/6 15/19
                                                                                            force [2] 8/6 817
c                                              14/2515/11517 15/17 15/1915/211617 22/6
                                              does [8] 417 7/17 7/18 8/5 8/2210/5 20/21     foregoing [1] 29/6
clarify [1) 27n                                22/6                                         Forrest [1] 6/21
clear [7] 10/216/15 18/25 2217 23/8 25/21     doesn't [4] 6/24 15/417/1 21/1                forth [1) 4/6
 2817                                         doing [6) 3/8 5/20 712111/9 22/4 28/8         four [7) 5/19 13/23 14/19 16/11 24/1 24/3
clearer [1] 18/20                             dollars [1] 10/11                              24/3
client [5] 4/9 5/14 6/23 14/20 14/24          don't [33]                                    four-year [1) 16/11
client's [1) 21/17                            done [1) 4/10                                 frankly [2] 12/19 23110
close [1] 24/10                               Duff r3i 4/15 8/16 8/22                       free [1] 7/22
coffee [1] 3/11                                                                             freeze [1] 9/8
cold [1] 3/11                                 E                                             full [3] 16/10 24/19 25/24
collect [1] 26/25                             each [1] 14/9                                 funds [7] 5/15 6/10 6/11 9/3 9!4 915 21/2
come [5] 9/16 14/14 21/5 25/13 26/19          early [1] 20/17                               further [2] 29/12 29/16
coming [4] 5/18 13/4 25/8 28/12               either [4] 18/119/10 26/11 26/11              future [1] 12/4
commence [1] 3/1                              else [2) 14/20 25/14                          Fwv rtl 2/5
communicate [1] 27/9                          end [2] 18/22 18/22
communicated [1) 11/23                        enlightening [1] 23/12                        G
communication [1] 12/5                        enter [2] 1114 16/1                           G.M.S [3] 9/20 18/2118125
compel [3] 4/11 7/5 14/12                     entered [2] 8/8 2417                          garnish [1] 17/17
complete [3) 23/123/4 23/17                   entering [1) 8/6                              garnishment [15] 1/14 3/14 4/21 7/16 9/23
complied [1] 12/8                             entitled [5] 8/19 8/20 9/17 1112 24121         10/17 10/23 10/25 1711117/13 19/15 20/3
comply [2] 8/1 817                            entry [4] 10/6 10/14 10/15 17/9                20/5 20/14 22/17
computerized [1) 1/23                         essentially [1] 17/5                          Garnishments [1] 7/21
concluded [1) 28/13                           estate [12] 1/5 312 4/16 8/22 8/24 917 9/15   GARZA [1] 2/11
connected [1] 16/22                            1111314/19 20/19 23/16 23/18                 gave [1] 14/4
contains [1] 29/6                             ESTHER [2] 2/11 3/19                          generous [1] 21110
continues [1] 25/1                            even [6] 5/8 6/216/3 21/24 23/15 26/5         get [9) 7/23 9/2310/20 14/514/1119/11
conversations [1] 19/13                       evening [3] 4/1511/8 20/17                     22/16 2517 2517
convicted [2] 7/25 16/23                      eventually [1] 19/11                          getting [4] 6/23 6/23 7/22 24110
cooperate [1] 23/11                           ever [4) 11123 12/17 13/13 15/1               Give [1] 12/9
copy [1) 13/2                                 every [1] 7/14                                global [1] 9/13
correct [4] 11/111217 17/16 2917              e\·erybody [5] 13/9 13/1113112 21/22 24/18    go [6] 5/13 5/23 12/2 12/4 15/25 26/25
correctly [1) 29/13                           evel)'ihing [6] 5/10 7/3 10/2113/12 14/18     going [26] 5/1815/316/616/10 17/3 17/4
cost [1] 29/16                                 16/6                                          19/11 20/22 21/8 21120 22122 23/23 25112
could [2] 13/10 22/8                          e\idence [1] 2917                              25/13 25/14 25/15 25/16 25117 25/25 26/19
counsel [5] 2/8 2/15 2/23 7/18 29/8           exactly [1] 19/16                              26/25 27/6 2117 27/13 27/18 27123
COUNTY [4] 1/9 1/22 29/2 29/5                 except [1] 25/1                               gone [1] 24/3
course [1] 11/21                              exceptions [1] 5/5                            gonna [1] 4123
court [37]                                    excuse [1] 2017                               good [12] 3/3 3/6 317 3/9 3/10 3/113/22 3/24
Court's [1] 7/12                              Executor (1] 23/16                             3125 14/4 1817 22/17
creditor [1] 7/24                             exempt [4] 5/10 18/8 22/18 25/2               Gosh (1] 2117
creditors [1) 8/21                            exhibits [1] 29/13                            got [2] 6/15 15/21
crude fll 27/13                               Exp [1] 29/23                                 gotten [1] 14/12
                                              expect [1] 1113                               governed [2] 5/6 517
D                                             explained [3] 8/2210/1814/24                  granted [3] 7/4 7/5 25/9
damages [1] 10/11                             explains [1] 16/2                             guess [1] 24/10
dark [3] 24/25 25/1 25/1                      e:dremelv fll 24/16                           !!UV f31 16/23 24/14 24/19
day [2] 1/19 29/19
deal [2] 5/9 25/3                             F                                             H
DEAN [3] 2/4 2/5 3/23                         facilitate [1] 14/10                          had [4] 6/25 14/617/20 19/14
death [3] 8/18 8/2110/9                       fact [5] 5/8 6/10 6/11 8/22 16/22             hallway [1] 19/13
DECEASED [1] 119                              false [1] 20/23                               HAND [1] 29/19
decide [1] 21/21                              fantastic [1] 7/15                            happen [1] 16/15
defendant [4] 6/17 8/2 12/4 1217              far [1) 4/3                                   happened [1] 11/10
deferral [1] 18/23                            fearful [1] 9/1                               happy [3] 3/3 3/510/19
Deputy [2] 29/4 29/23                         federal [5] 5/6 5/10 5/1118/23 2217           hard [1] 5/19
detail [1] 5/13                               figure [2] 21/21 27/24                                   [4] 1/91122 2912 29/5
detailed [1] 6/19                             tile [1) 7/20                                 bas [26] 4/9 5/8 5/24 6/18 6/19 7/9 7/25 8/5
Dickinson [2] 2/13 2/21                       filed [21] 4/15 5/22 6/14 717 8/16 9/2 10/6   8/14 8/22 8124 8124 9/15 12/5 12/10 12/17
did [6] 7/1210/1311/1817/16 20/8 26/10         10/15 10/16 10/2311/15 12/2 12/13 14/3        14/19 15/18 16/1119/1 19/1219/16 19/21
didn't [11] 4/18 6/8 6/16 11/20 12/19 14/25    14/19 14/23 15/14 1811118/25 19/22 26/8       19/22 25/4 25/24
 15/21sn 11111 11120 26/s                     filing [1] 10/5                               hasn't [1] 19/22
directly [3] 10/4 12/4 1217                   filings [1] 1117                              have [56]
disclosure [3] 16/10 24/15 24/19              final [1] 10/10                               haven't [4) 6/4 9/23 12/8 14/10
discovery [16] 4/8 4/12 5/22 6/15 7/1 8/3     Finally [1] 8/15                              he [42]
 1115 11/12 11/16 ll/19 11125 12/9 12/11      find [3] 7/15 815 15/18                       he's [10] 6/116/616/917/2420/25 24/25
 15/17 19/19 19/23                            fine [2] 22/6 24/2                             24/25 26/11 26/11 26/12
discuss [1] 14/8                              first [4] 5/23 13/14 23114 2717               hear [1] 14/21
discussions [1] 22/24                         float [1] 26/24                               beard [3] 13/14 13/15 13122
do [12] 6/8 814 9/9 10/3 16/6 1617 17/21      Floor [1) 29/24                               hearing [10] 1/14 4/114/18 4/19 4/20 6125
 18/21 23124 26/16 27/2 29/6                  FM [2] 2/12 2/20                               816 11122 13/16 16/15
document [3] 13/4 15/14 20/18                 follow [1] 12/11                              held [3] 1/20 1/21 9/6
documents [13] 7/6 7/15 7/18 9/119/14         following [1] 1119                            help [3] 10/20 14/1125/4
                                              8/3 8/18 8/21 10/10 ll/12 16/6 16/2316/24   8/17
H                                             19/23 23/19 24/6 24/7 24/9 24/15            most [1] 9/19
her [3] 6/9 7/22 8/16                       judicial [ 1] 5/11                            motion [11] 1/14 6/9 7/5 10/16 11/15 12/13
here [18] 5/14 7/21 9/5 10113 10/20 14/14    July [1] 7/12                                12/14 16/118/17 20/15 21/16
 15/16 1611216/25 17/23 19/15 19/15 20/3     June [2] 7/5 8/8                             Motions [3] 7/4 7/20 14/12
 21/17 21/24 24/2 25/3 27/16                 June 26th [1] 8/8                            Moving [1] 10/18
here's [4] 14/2 16/14 16/14 25/3            liust f341                                    MR [27] 2/4 2/19 4/2 4121 617 6/21 7/6 7/9
hereby [1] 29/6                                                                           1111817 8n 10/310/411/2212/1113/22
Hey [1] 12/8                                  K                                           15/16 15/1816/617/5 19/18 20/18 20/24
him [11] 4/13 7/25 8/12 1112412/113/16        keep [1] 11/5                               20/25 23/19 25/15 25/25
 13/19 14/24 16/24 20/13 25/4                 ldlled [1] 2414                             Mr. [29] 4/25 5/24 6/16 6/21 7/12 8/5 9/10
himself[1] 24/15                              kind [3] 16/1 21/13 25/17                   10/3 10/19 10/23 11/12 11/IS 11/18 11/21
hire [2] 7/17 8/10                            knew [4] 11/24 15/I 20n 20/13                12/5 12/10 12/20 13/14 13/15 13/16 14118
hired [1] 27/11                               know [32]                                    15/20 I6/2 16/4 23/12 23/12 23/15 24121
his [20] 415 6/11 6/12 6/18 7/2 7/2 7/3 7111  known [1] 13/25                             24122
 7/19 8/9 8/20 9/12 9/14 12/6 13/16 16/8 18/5 knows rtl 14120                             Mr. Bennett [3] 6/217/1213/16
 21/2 24/23 25/16                                                                         Mr. Blumrosen [9] 4/2510/2311/12 11/21
hit [2] 19/12 19/16
                                              L                                            12/5 14118 23/12 23/15 24121
hold [I] 21/21                                last [1] 19/1                               Mr. Blumrosen's [1] 12/10
Honor [11] 3/10 3/22 5/I6 5121 6/14 9/25      law [6] 2/5 5/4 516 sn 5/10 22n             Mr. Blumstrum (1] I0/19
 13/6 14/13 17/19 I8/3 26/21                  lawyers [1] 8/IO                            Mr. Mcafee [6] 6/16 9/10 11/15 11/1816/4
Honorable [I] 1/21                            learned (2] 1116 14/IO                      24122
hoped [1] 10/19                               least [I] 9/20                              Mr. Mcafee's [I] 23/12
Houston (3] I/22 2/6 29/25                    leave [2] 4/23 13/20                        Mr. Store [6] 5/24 8/5 1013I3/1413/15
how [7] 3/8 16/3 16/4 16/11 20/20 21/5 21/8 let [8] 3/16 4113 12/1 14117 IS/23 15/23 23/9 15/20
However [1] 4/7                                24/12                                      Mr. Store's [2] 12/20 16/2
huh f21 15/8 19/3                             let's [1] 15/25                             MS [1] 2/11
                                              leverage [3] 23/23 23/24 2411               Ms. [4] 4/15 8/16 8/2214/9
I                                             light [1] 20/23                             Ms. Anderson [1] 14/9
I'd (I] 23/10                                 like [4] 5/3 5/13 21/13 2412                Ms. Duff [3] 4/15 8/16 8/22
I'll [6] 4/9 4/13 13/20 13/20 23/8 23/24      listed [1] 11119                            murder [3] 7/25 16/23 24/16
I'm [55]                                      listen [1] 20/12                            my [13] 4/9 5/13 5/24 8/15 9/2 10/9 12/20
I've [13] 8/17 8/17 I0/18 10/19 13/15 13/22 little [1] 5/19                                141214/20 14/24 26/12 27/15 29/19
 13/23 13/25 16/15 20/24 23n 24/18 24/18      long [2] 13/25 27/25
I.R.A [9] 4/4 5/6 5/15 11/217/18 18/118/13 look [4] 23/8 23/9 26/3 26/11                  N
 18/1618/18                                   looked   [1] 20/19                          name [1] 4/24
impediment [1] 23/14                          looking (2] 11110 22/19                     nature [1] 9/15
important [1] 11/17                           Lovd ril 1/21                               necessarily [1] 17/15
inaudible [2] 20/6 20/10                                                                  necessary [1] 5/17
inclined [1] 14n
                                              M                                           need [3] 15/19 18/20 26/1
included [1] 29/9                             machine [1] 1/23                            needed [1] 12/4
including [2] 7/2 9/14                        made [3] 16/15 17/9 23n                     needs [2] 4/10 5/3
income [1] 18/23                              maintaining [1] 27/5                        nefarious [2] 26n 26/10
indicating [1] 4/24                           make [12] 3/17 3/17 5/23 8/10 14/2115/5     never [2] 7n 719
individual [2] 18/21 25/11                     15/9 18/20 18/25 19/17 25/212817           new [3] 3/3 3/5 15/19
information [1) 14120                         maldng [2] 6/5 9/9                          next[1] 21/20
instructed [1] 18/11                          MALE (4) 3/24 18/3 20/6 20/9                no [29] 1/2 413 4/5 5/3 5/5 5124 7/14 10/8
insulated [1) 24/14                           man [1 1 7/24                                10/15 12/5 12/10 16/21 16/2116/2117119
insulates (1] 16/20                           matter [5] 4/15/8 19/24 22/24 27/8           17120 17124 18/218/4 18/13t9n 21110
insurance [1] 4/7                             may [6] 9/25 1419 1411124/4 24122 27/16     22/23 23/25 25/4 26/18 27/4 28/5 28/8
intention (2] 23/11 28/8                      May of [1] 2414                             non [2) I8/8 22/18
Interrogatories [2] 7/8 7110                  maybe [5] 6/3 16/3 17116 2I122 23/12        non-exempt [2] 18/8 22/18
intervene (2) IOn 10/12                       MCAFEE[30)                                  none [ 1] 20/21
intervened [4) 6/4 6/8 I9/2119/22             Mcafee's [2) 20/25 23/I2                    not (54]
inventories [1) 14119                         me [19] 3/16 8/22 12n 12/9 14/9 15/23 16/1 nothing (6) ton 10/12 11124 14/20 15/17
involved [5) 16/3 16/9 22/3 22/5 22/15         17/16 17/25 20/8 20/11 20/21 20/24 21111   24/13
involvement [1] 21/23                          23/9 24/12 24/17 25/4 29111                notice [5) 4/14 4/18 8/16 14/4 19/22
is [63]                                       mean [21) 10/18 12/18 13/313/3 13/5 13/13 noticed [1) 4/20
isn't [I) 11/22                                1417 1419 14/1116/1117/121/12 22n 22/22 notices [1) 12/4
issue [10] 4111 4114 5/2110/22 1712 19/10      24/3 24/13 24/16 24/18 24119 26/24 27114   now [8) 16/4 20/17 22/23 22123 22/23 25/1
 19/12 21/3 21117 21/23                       meantime [2] 26/23 26/24                    2sn 26/11
issues [1] 22/16                              mid [1] 11/8                                NUMBER [6] 117 2/4 2/112/19 29/5 29/24
it [52]                                       mid-afternoon [1) 11/8                      numbered f2i 1/20 29/10
it's [18] 5/I8 5/19 5/24 9/22 10/2 12/18 13/1 MILES [2] 2/4 2/5
 1317 16/16 22n 23/1 24116 241I6 25/25 26/3 million [4] 6/15 16/5 16/23 23/19
                                                                                          0
 27/to 27118 2sn                              millions [1] 10/11                          oath [1] 4/9
                                              mind [1) 11/5                               objected [2] 6/24 11121
J                                             miraculous [I] 7/16                         objection [3] 4/5 10/15 11117
JANET[!) In                                   misstating [1] 23/13                        objections [1] 7n
January [1] l/19                              money [9) 6/24 7117 8/13 15/19 20/21 2111   obtained [1] 14125
Judge [15] 1/213/6 4/I 11/6 12/3 1413 1719 2l/10 25/4 28/5                                occurred [1) 29/10
 1712118/619/25 20/13 22/5 23/5 25/4 25/22 more [1) 10/20                                 offensive [2] 24/16 24/17
judgment [20) 5/22 6/15 711 7/24 7125 8/2     morning [8] 3/3 3/6 3n 3/10 3/22 3/24 3/25 offered [1) 29/14
                                           pretty [2] 1414 24/10                       responding [1] 10/24
0                                          previous [3] 4112 13/17 15/6                response [6] 415 5/24 7114 8/15 9/2 20/18
office [1] 12/6                            prison [2] 11122 24114                      responses [1] 12/9
Offices [1] 2/5                            PROBATE [3] 1/5 29/5 29/24                  retained [1] 21/2
Official [3] 29/4 29/19 29/23              problem [2] 1718 19/17                      retirement [11] 6/11 713 8/20 8/23 9/6 9/17
officially [1] 16/3                        problems [2] 21/9 22/10                      9/21 18/22 19/4 19/6 19/9
Oh [2] 12/22 12/24                         proceed [2] 5/2 7116                        retry [1] 1712
Okay [13] 3/21311113/2115/11171617114 proceeding [1] 5/25                              revised [1] 26/16
 18/5 20/25 23/6 24/9 26/14 2713 28/2      proceedings [6] 1/19 1/23 3/1 28/13 29/8    right [11] 3/12 3/15 3/19 412417112 22/13
once [1] 9/13                               29/13                                       22/25 26/1126/22 27/2128/10
one [13] 117 4/14 4/17 513 5/6 14/18 16/7  produce [2] 71616/7                         ROBERT [3] 2/19 2/20 3/20
 18/12 19/1 19/5 19/8 19/12 29/24          produced [1] 12/17                          rules [11 8/1
ones [2] 8/9 18/19
ongoing [3] 19/20 19/2119/23
                                           Production [2] 7113 7114
                                           professional [I] 13/9
                                                                                       s
only [15] 4120 4/214/25 8/19 10/3 10/25    project [1] 21/9                            saddened [1] 14/21
 1116 17110 18/12 18/17 18/19 19/15 19/15  protect [2] 8/10 8/10                       said [9] 4/17 5/3 6/22 711313/1115/215/6
20/5 20/13                                 protected [ 1] 5/4                           15/16 2412
open [2] 10/14 29/11                       protective [1] 25/10                        sat [1] 13/11
operate [1] 13/10                          prove [2] 5/14 5/14                         satisfy [1] 23/19
opposition [I] 5/3                         provide [3] 8/8 9/11 9/12                   say [6] 14/2217117 19/20 20/8 24/12 25/12
orchestrated [1] 24/22                     provided [1] 9/20                           saying [14] 4/17 12/7 15/1516/19 17/25
ordeal [1] 16/13                           push [1] 26/25                               20/20 21/3 22/14 23/10 26/4 26/9 26/10
order [14] 4/12 6/3 7113 8/8ll/412/3 12/8 pnshing [1] 24/10                             27113 27119
 12/9 18/9 18/10 20/16 23/10 26/16 28/9    put [11] 4/6 4/9 5/19 8/15 8/16 9/2 11118   says [4] 6/16/113/12 25/24
ordered [2] 7110 9/12                       1112018/2121/20 24/19                      second [2] 12/1 12/2
ordering [1] 716                          iuuts [11 20/23                              secondarily [1] 16/5
other [12] 4/14 5/6 8/2 11/19 14/9 16/8                                                Security [13] 4/4 5/5 5/15 6/12 8/25 9n 9/18
 18/14 19/5 19/8 19/19 20/18 29/8          Q                                            11131711718/118/1218/1618/18
ought [1] 16/1                             qualifies [1] 18/22                         see [2] 1418 2716
our [7] 6/23 715 11124 14/23 18/9 19/13    quash [7] 1114 7/20 10/1612/1312/14 23/1    seem [1] 23/10
 19/16                                      23/4                                       seems [3] 14/9 16/1 21/13
out [5] 21/2126/12 27120 27122 27124       quashed [1] 5/12                            seizable [ 1] 2313
outstanding [1] 11/19                      quashing [1] 11/4                           sent[1] 10/24
over [4] 5/19 10/10 15/1 21/9              question [1] 1416                           separate [1] 10/22
own [1] 7/22                               questioned [1] 12/20                        served [2] 11112 11/16
owns n l 23/19                             questions [2] 4/8 6/20                      shared [1 1 8/17
p                                          quite [2] 7/15 12/19                        she [12] 4/16 4/17 4/18 6/9 7122 8/16 8/24
                                          iouo fll 2716                                 9/1 9/2 19/17 19/21 24/4
page [1] 19/1                                                                          she's [4] 4/17 4/18 7/21 7/22
paid [5] 6/23 7/22 7/23 20/24 29/18        R                                           Sheryl [2] 29/4 29/22
Paragraph [2] 18/17 18/18                  R.P.R [1] 29/22                             shoes [5] 16/4 17/4 25/15 25/16 25/25
parents [1] 23/21                          rather [1] 23/10                            should [8] 6n 7123 8/1 8/4 81121411121/15
part [3] 3/16 8/2 12/10                    Rd [1] 2/12                                  21116
particular [ 1] 2113                       read [1] 4/24                               show [4] 3/1612/2312/25 21/16
parties [3] 4/25 29/9 29/15                ready [1] 5/2                               showed [1] 15/13
past [1] 10/18                             really [5] 415 20/2 20/2121/23 27113        sic [1] 10/19
pay [3] 15/19 20/21 21/10                  receive [1] 4/18                            signing [1] 23/23
paying [2] 20/24 21/1                      received [1] 20/17                          simply [1] 15/15
PC [2] 2/12 29/18                          receiving [1] un                            since [1] 9/23
pending [3] 6/25 10/8 17/10                record [6] 1/127/3 28/8 29/9 29/12 29/17    single [1] 7114
person [1] 13/17                           records [ 1] 5/14                           sir [1] 3/24
perspective [1] 27/15                      referenced [7] 12/17 12/18 13/16 13/18      sitting [1] 24114
Pfeiffer [2] 2/12 29/18                     13/19 19/13 19/14                          so [41]
phonetic [1] 6/21                          referencing [1] 1sn                         Social [13] 4/4 5/5 5/15 6/12 8125 9/6 9/17
pick [2] 25/13 25/19                       reflects [1] 29/13                           1113 17/17 18/118/12 18/1518/18
picked [1] 26/2                            regard [5] 4n 4/12 10/4 11/5 17/9           solve [1] 21/9
picking [1] 21/14                          relating [1] 24/22                          some [4] 8/19 9/20 13/13 16/1
picture [1] 9/14                           release [3] 9/3 9/4 9/5                     somehow [1] 16/20
Plaintiffs [4] 2/8 3/23 5/21 11113         report [1] 26/20                            someone [1] 6/6
plenty [1] 14/4                            reported [2] 1/23 29/11                     something [6] 9/2 14/10 14123 25/14 26/7
PLLC [ 1] 2/20                             reporter (3] 3/18 29/4 29/23                 26/9
point [2] 6/17 9/13                        REPORTER'S [4] 1/129/9 29/12 29/17          soon [1] 24/11
portions [1] 29n                           represent [3] 3/20 1013 16/16               sorry [1] 4/23
position [3] 11124 20/2 26/13              representation [1] 14/22                    sort [4] 16/2 24114 25/12 26/20
post [6] 5/22 6/15 7/18/311112 19/23       represented [2] 6/10 11/15                  Southwest [1] 2/5
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styled [1] 29/10                               transfers [2] 8/13 9/15                       which [11] 4/14 5/4 6/2 7/22 8/5 17/10 19/4
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TEIR [3] 2/19 2/20 3/20                        understand [10] 917 13/6 15/6 15/10 I5/20     Wright [I] 1/21
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Telephone [4] 2/6 2/13 2/21 29/25              understanding [3] 10/9 23/15 23/17            25/6 2519
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that [136]                                     using f1l 23/22                               y
that's [27] 4/10 6/3 6/3 617 6/17 9/1 10121
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          TabS
January 22, 2015 Transcript
                                                                            1



 1             TRIAL COURT CAUSE NUMBER 396,835-401
 2   IN RE: THE ESTATE OF               *    IN    THE PROBATE COURT OF
     JANET FOLTYN McAFEE,               *
 3                                      *
     ROSEMARY FOLTYN and                *
 4   Jake Foltyn                        *    HARRIS COUNTY, T E X A S
                                         *
 5   THE GMS GROUP, LLC and             *
     WOODFOREST NATIONAL BANK,          *
 6   Defendants                          *   COURT     NUMBER   (1)   ONE
 7

 8              STATUS CONFERENCE AND MOTION TO QUASH
                      WRIT OF GARNISHMENT HEARING
 9

10
     Came to be heard on this the 22nd day of January, 2015, Status
11
     Conference and Motion to Quash Wright of Garnishment Hearing,
12
     in the above-entitled and numbered cause, and all parties
13
     appeared in person and/or being represented by Counsel of
14
     Record, before the Honorable Loyd Wright, Judge Presiding.
15
16
                           VOLUME __1__ OF __1__
17

18
                           0 RI GI NAL
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                                                    2


 1            APPEARANCES
 2   ATTORNEY FOR CHARLES STORER:
 3        Esther Anderson
          State Bar No. 00792332
 4        845 FM 517, Suite 200
          Dickinson, Texas 77539
 5        Telephone: 831-365-1191
 6   ATTORNEY FOR PLAINTIFFS, ROSEMARY FOLTYN AND
     JAKE FOLTYN:
 7
          Dean Blumrosen
 8        State Bar No. 02517900
          4615 Southwest Freeway, Suite 850
 9        Houston, Texas 77027
          Telephone: 713-524-2225
10
     ATTORNEY FOR THE ESTATE OF
11   ROSEMARY F. McAFEE, DECEASED:
12        Mary Elizabeth Duff
          State Bar No. 06166880
13        210 Main St.
          Richmond, Texas 77469
14        Telephone: 281-341-1718
15
16
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                                                                                    3


10:21AM     1                  THE COURT:     The McAfee Estate.
10:21AM     2                  MR. BLUMROSEN:     Yes, Your Honor.
10:21AM     3                  THE COURT:     So, this was sort of a continuance
10:21AM     4 or a rehearing of the status of where we are?
10:21AM     5                  MR. BLUMROSEN:     Yes, Your Honor.   We filed an
10:21AM     6   Order which we believe adequately disposes of the garnishment
1o:~M       7   issue that's in the garnishment case.     There would be one
1o: 21AM    8   change that we have spoken with counsel about that we waul d
1 o:22AM    9   make and it waul d be on the paragraph 3 where it says sha 11
10:22AM    10   immediately send the payment to me and I guess address, and I
10: 22AM   11   would put a paren       make sure I understand -- I'm telling the
1 0:22AM   12   Court this is not agreed to.     We tried an Agreed Order and we
10:22AM    13   didn't agree on it so this is an Order that we are proposing
10 :22AM   14   and I know that counsel will share the Order that she is
10:22AM    15   proposing.
10:22AM    16                  THE COURT:     Okay.
10: 22AM   17                  MR. BLUMROSEN:     The only thing that we would add
10:22AM    18   on the end that would just say, "Upon release of the Temporary
10:22AM    19   Injunction in Cause No. 396,935."     The stuff is here on the
10:22AM    20   behalf of the Estate.    These are -- the garnishment is only
10:22AM    21   related to the wrongful death case.     We believe that some of
10:22AM    22   the findings that counsel is asking the Court to make an Order
10:22AM    23   that she is proposing could potentially prejudice claims that
10:22AM    24   Ms. Duff may make in the Estate case regarding the 401K, and I
10:23AM    25   don't think she has had a complete community to review and look
                                                                                         4


10:23AM     1   at everything on the Woodforest account.          But I think just what

10:23AM     2   we are asking for is very simple, the only relief that was

10:23AM     3   granted by the Order that we propose is the two accounts that

10:23AM     4   everybody agrees that are subject to garnishment and all other

10:23AM     5   relief is denied, meaning that in the garnishment action we are

10:23AM     6   not getting anything from Woodforest.        We are not getting

10:23AM     7   anything from the retirement account.        We are only getting the

10:23AM     8   two accounts that everybody agrees are subject to garnishment.

10:23AM     9   It's a very simp 1 y, straightforward Order.

10:23AM    10                      THE COURT:   Is this a new Order you have or is

10:23AM    11   it the one I'm looking at?      The one, January 7th, that's the

10:23AM    12   old Order, isn't it?

10:23AM    13                      MR. BLUMROSEN:    Yes.   I filed this.   It was

10:23AM    14   accepted.      I filed it yesterday.

10:23AM    15                      THE COURT:   Okay.

10: 23AM   16                      MR. BLUMROSEN:    That's it.    And the only change

10:23AM    17   I'm making where I wrote in.        I've shown it to counsel where

10:23AM    18   I'm asking

10:23AM    19                      THE COURT:   Okay.

10: 23AM   20                      MR. BLUMROSEN:    Because there is a Temporary

10:23AM    21   Injunction in place in the Estate matter that has frozen

10:23AM    22   everything and so that Order, the way I have i t reading, asks

10:24AM    23   GMS to release the funds immediately.        And I put at the end,

10:24AM    24   11
                     upon release of the Temporary Injunction."      I spoke to Mr.

10:24AM    25   Lipman yesterday.      He is counsel for GMS.     As far as he is
                                                                                       5


10:24AM    1 concerned, he is just saying whatever the Court orders us to
10:24AM    2   do, that's what we wi 11 do with the two accounts that y' all are
10:24AM    3   talking about.
10:24AM    4                    THE COURT:    Okay.
10:24AM    5                    MS. DUFF:    And Your Honor, I'm working on the
10:24AM    6   release of the Temporary Injunction to get all the remaining
10:24AM    7   assets to the correct place.         We have a -- I think the only --
10:24AM    8   probably the only contention is going to be with regard to the
10:24AM    9   401 K and what portion of that goes to the Estate.        And I need
10:24AM   10   to get with my client on that.         And, unfortunately, after I
10:24AM   11   spoke with Ms. Anderson, I had the creeping, crawling crud for
10:24AM   12   a little while and haven't been able to get with my client on
10:24AM   13   this, so I apologize.
10:24AM   14                    THE COURT:    So your 401K issues are more
10:25AM   15   community property issues?
10:25AM   16                    MS. DUFF:    Yes.     The question is how much is
10:25AM   17   community that belongs to her, the Decedent, and how much
10:25AM   18   remains with him.
10:25AM   19                    THE COURT:    Okay.
10:25AM   20                    MS. ANDERSON:       And Judge, if you will recall, it
10:25AM   21   was the POA's Motion to Quash the Writs, and so the Order I'm
10:25AM   22   proposing, and I'm sorry, I only have one with me and I will
10:25AM   23   hand it to you in just a second, this is an Order partially
10:25AM   24   granting the Motion to Quash.         I mean, that's what the motion
10:25AM   25   was and that's what they are trying to avoid, is any negative
                                                                                     6



10:25AM    1   connotation that they may have done something that was

10:25AM    2   improper.     This -- we were asked to draft the Order.     I drafted

10:25AM    3   it.   This is the third Order.    And until yesterday, I didn't

10:25AM    4   receive any response and unti 1 today they hand wrote in, you

10:25AM    5   know, pending the release of the Temporary Injunction.        And so,

10:25AM    6   you know, we did the work.     No one says anything unt i 1 the day

10:25AM    7   before and the day of and then it's not good enough.        This

1o:26AM    8   includes his 1anguage.     I took his Order and put it in this

10:26AM    9   Proposed Order.     What this also does though is it covers Mr.

1o:26AM   10   McAfee's two accounts.     His Order doesn't even address

1o:26AM   11   Woodforest, it only addresses GMS.     This one explains the GMS

10:26AM   12   account.     It explains the account numbers that go to Mr.

1o:26AM   13   McAfee, not just the account numbers that go to Mr. Bl umrosen.

10:26AM   14   So this one addresses Mr. McAfee's account numbers and it

10:26AM   15   addresses Mr. Bl umrosen' s client's account numbers, which go to

10:26AM   16   which.     In this one, what I had proposed was that everyone has

10:26AM   17   agreed to release the Temporary Injunctions and the other the

10:26AM   18   cause number.     We want their client to get her money.    We are

1o:26AM   19   not going to contest it.     We are not going to oppose it, and

1o:26AM   20   it's a substantial amount of money, a substantial amount, and

10:26AM   21   so they won't agree to release it until after we discuss, well,

10:27AM   22   you know, how are you getting this per court order but the

10:27AM   23   release, I mean, the Injunction applies to Mr. McAfee but not

10:27AM   24   to you?     And that's what 1ed to his change.

10:27AM   25                     The other thing, Judge, is I don't even think
                                                                                         7



10:27AM    1   there is a Temporary Injunction in place.         I think everyone has
10:27AM    2   honored it because everyone understood what the intent was of
10:27AM    3   the parties and the intent of the Court but I can't even learn
10:27AM    4   what the base lawsuit is that the Temporary Injunction was
10:27AM    5   filed for.   It's my understanding also that there is no ending
10:27AM    6   to the Temporary Injunction and the only way one can be valid
10:27AM    7   is if there is a final trial date that says on this date this
10:27AM    8   Temporary Injunction ends and wi 11 either go away or turn into
10:27AM    9   a Permanent Injunction.      So I believe there is not even a
10:27AM   10   Temporary Injunction in place.      I will go along with what's
10:27AM   11   been going on but we were here two weeks ago and the issue
10:28AM   12   garnishment was decided.     That's over.      The only thing that
1o:28AM   13   needed to be added was to make the payment to Mr. Bl umrosen
10:28AM   14   and/or his client.    That's been done.       And so this is the
10:28AM   15   Proposed Order that covers both parties and both banks in the
10:28AM   16   garnishment proceeding.
10:28AM   17                   MS. DUFF:     Your Honor, if I may, I have never
1o:~AM    18   even been served with any of these documents from Ms. Anderson.
10:28AM   19   I I m down here at Mr. Bl umrosen Is request.
10:28AM   20                   THE COURT:     Do you -- and have you seen this?
10:28AM   21                   MR. BLUMROSEN:     Yes.     And the reason that we
10:28AM   22   have objected to it, and I want it to just respond to a couple
1o:28AM   23   of things that Ms. Anderson said.         Her co-counsel , Mr. Tei r, I
10:28AM   24   believe, left me a voicemail that same day, sent me an Order,
1o:28AM   25   and I si nee faxed him back.     We have been going back and forth
                                                                                       8


1o:28AM    1   on different things.     It wasn't the first time was yesterday.
10:28AM    2   We have sent changes.    We don't agree with what she is
10:2SAM    3   proposing because it could potentially prejudice what the
1o:2aAM    4   Estate might want to do.     What she is doing, and again, Your
10:29AM    5   Honor, we sti 11 have the same issue.    I don't think she has any
10:29AM    6   standing at all to even be doing this.     She is still -- she
10:29AM    7   just to 1d a minute ago she only represents Mr. Storer.      She
10:29AM    8   doesn't represent Mr. McAfee.     And I thought the Court was
10:29AM    9   pretty clear last time that you don't get to cherry pick.         You
10:29AM   10   are either in this case or you are not in this case.       She is
10:29AM   11   here to help.    We believe that the Order that we proposed does
10:29AM   12   exactly what she is asking for, we don't get the garnishment of
10:29AM   13   the 401 K.   We don't garnish the Wood forest account.   A11 we get
10:29AM   14   are the two accounts everybody has agreed to and everything
10:29AM   15   else is left that way.     All other relief that's requested in
10:29AM   16   the -- in that case under our garnishments is denied.      So I
10:29AM   17   believe it accomplishes the goal and the discretion that the
10:29AM   18   Court has and what the counsel wants the Court to do is to bend
10:29AM   19   over backwards to give any discretion the Court might have to
10:29AM   20   her client when her client really has not participated in these
10:29AM   21   proceedings since the judgment was entered and continues not to
10:30AM   22   participate in the post-judgment discovery.
10:30AM   23                    MS. ANDERSON:   Judge, first, with regard to Ms.
10:30AM   24   Duff and the notice, and I was curious about the standing of
10:30AM   25   the garnishment proceeding and did research because we did talk
                                                                                       9


10:30AM     1   about that at our 1ast hearing, the garnishment proceeding is a
10:30AM     2   separate and di st i net case from the underlying case.     There is
1o:~M       3   no doubt about that.     Our notice went to Mr. Blumrosen because
10:30AM     4   he is the person who issued the writs on behalf of his client
10:30AM     5   and, of course, the two banks.      That was all it had to do, and
10:30AM     6   I don't mean to be rude with Ms. Duff, but she wasn't entitled
10:30AM     7   to notice.     I'm trying to let her know so that she can
10:30AM     8   participate so that we can try and resolve everything.       The
10:30AM     9   idea about Mr. McAfee not participating in this, he is in jail.
10:30AM    10   There is nothing stopping either of these attorneys from going
10: 30AM   11   to jail and deposing him or subpoenaing a release and having
10: 30AM   12   him come here to compel him to do whatever.      They are in a
10:31AM    13   position now where there is an agent trying to resolve these
10:31AM    14   issues.     And I think we have made a lot of progress to where
10:31AM    15   everything is resolved except one account, everything, and so
10:31AM    16   I'm wanting to release it to her, give it to her and, instead,
10:31AM    17   they are wanting to maintain it for whatever reason.        I don't
10:31AM    18   know, they all agree that Social Security is his separate
10:31AM    19   property.     It will never go to her.
10:31AM    20                     With regard to the 401K plan, if she has a claim
10:31AM    21   against it, so be it.     Make the claim or let's work something
10:31AM    22   out.     If she prevails on the claim, she is going to get a
10:31AM    23   judgment.     If she gets a judgment, she is a judgment creditor
10:31AM    24   and --
10:31AM    25                     THE COURT:   The 401K, what's the, I mean, is it
                                                                                   10


10:31AM    1   an asset that accumulated during marriage?
10:31AM    2                     MS. ANDERSON:    There was a portion of it.
10:31AM    3                     THE COURT:   So that's the problem, there was a
10:31AM    4   portion of it.
10:31AM    5                     MS. ANDERSON:    And determining that dollar
10:31AM    6   amount.   Now, Ms. Duff and I have spoken, I thought we were on
10:31AM    7   the same page that we are going to get to that dollar amount.
10:32AM    8   It just couldn't get done by today.
10:32AM    9                     THE COURT:   What I'm doing here today, either
10:32AM   10   way, how much am I allowing you to garnish?
10:32AM   11                     MR. BLUMROSEN:    Eight thousand and something
10:32AM   12   dollars and change.     It's the two accounts that we agree are
10:32AM   13   subject to garnishment.
10:32AM   14                     THE COURT:   And so you don't -- you think -- and
10:32AM   15   what's wrong with her comprehensive, I mean, it almost sounds
10:32AM   16   1 ike there is a settlement proposal, but
10:32AM   17                     MS. ANDERSON:    I'm trying to give it all to
10:32AM   18   them, Judge.     They just won't take it.
10:32AM   19                     THE COURT:   So what do you      is there a concern
10:32AM   20   that what they are offering really isn't all that you are
10:32AM   21   entitled to?
10:32AM   22                     MR. BLUMROSEN:    No.   There is a question about,
10:32AM   23   I mean, they are making bold statements in the judgment about
1o:32AM   24   accounts that may or may not -- they had something worked out
10:32AM   25   and she is kind of combining the --
                                                                                                 11



10:32AM     1                       MS. ANDERSON:     But what bold statement?
10:32AM     2                       THE COURT:   She is just being comprehensive and
10:32AM     3   it may spi 11 over into your area and
10:32AM     4                       MR. BLUMROSEN:     And I don't want to -- whatever
10:33AM     5   they -- either they are going to be able resolve the 401KI or
10:33AM     6   they are not   I   there may be a hearing   1   I don't know   I    but I just
10:33AM     7   think the Order that I proposed is generic enough          I       it
10:33AM     8   accomplishes the goal of letting us garnish the $81000 and
10:33M      9   change while still leaving the issue, that everything else is
10: 33AM   10   denied.     We are not trying to get Woodforest account.                We are
10:33AM    11   not trying to go after the other account.            It's very clear by
10:33AM    12   that Order we are not doing that.          But it still leaves open
10:33AM    13   whatever fight there may be, and they may work it out and they
10:33AM    14   may settle it, but we don't want to have any Order entered that
10:33AM    15   may prejudice what the Estate is trying to do with regard to
10: 33AM   16   the 401K.
10:33AM    17                      MS. ANDERSON:      Judge, those statements are just
10:33AM    18   the facts.     They don't prejudice the Estate in any-- it's just
1o: 33AM   19   facts, that he has an account number 1 it's this number, that
10:33AM    20   it's not subject to garnishment.          He has got another account
10:33AM    21   number.     It's this number.       It's not subject to garnishment.
10:33AM    22   Those are facts.      And those are true facts, and so it doesn't
10:33AM    23   affect the Estate at all .       And I'm here as an officer of the
10:33AM    24   Court saying over and over and over again, I understand there
10:33AM    25   is an issue to the 401K plan.          I understand we began talks
                                                                                            12



10:34AM     1 about it and I anticipate and hope we can just resolve that.
10:34AM     2 What I can't get is, why won't they take everything else now?
10:34AM     3   The only reason I can think of is because that means that he
10:34AM     4   would also get access to his Social Security account.         He has
10:34AM     5   zero access.   He is depending on other people to even give him
10:34AM     6   that money for whatever that account is in prison, you know,
10:34AM     7 and people can't afford that.          He has Social Security assets
10:34AM     8   that he could use but it continues to tie up his assets only
10:34AM     9   because they don't want their millions now.
10:34AM    10                     MS. DUFF:    Your Honor, actually, mine is a
10: 34AM   11   little bit more blanket.       I don't want to cherry pick on the
10:34AM    12   release of the TRO as it goes to GMS, which is where the vast
10:34AM    13   majority of the accounts are and just say -- I don't want that
10:34AM    14   to be confused.     I actually have an Order releasing that.            I
10:34AM    15   just need to go over with my client and make sure everything is
10: 34AM   16   correct, deal with the 401K, and I think it whole TRO can be
10: 35AM   17   released to my client.        I want specific language that those
10:35AM    18   accounts are going to Ms. Foltyn, Mr. and Mrs. Foltyn's will go
10: 35AM   19   directly to her.    And I want specific language in there.          I
10:35AM    20   think this can be wrapped up very quickly.         In fact, I was
10:35AM    21   planning on filing my Motion to Release and then this
10:35AM    22   garnishment issue came up which has held up the process a
10:35AM    23   little bit.
10:35AM    24                     THE COURT:     Okay.   So, you are on the Estate
10:35AM    25   side trying to do what you normally do in an Estate and you
                                                                                      13


10:35AM     1   have got the 1 awsui t, and it doesn't matter what character he
10:35AM     2   is saying, you want whatever assets, we 11 , except exempt
10:35AM     3   assets, of course, you want whatever you think you are entitled
10:35AM     4   to or can get to?
10:35AM     5                     MR. BLUMROSEN:     Yes, sir.
10:35AM     6                     THE COURT:   And you are trying
10:35AM     7                     MS. ANDERSON:     Trying to give it to them.

10: 35AM    8                     THE COURT:        mostly trying to protect the
10:35AM     9   exempt assets?
10:35AM    10                     MS. ANDERSON:     Two accounts, and give them
10:36AM    11   everything else.    And I wi 11 say, Judge
10:36AM    12                     THE COURT:   And have you ever         is the Power of

10:36AM    13   Attorney any part of this?        Has it been fi 1 ed?
10:36AM    14                     MS. ANDERSON:     Yeah, the day that we were --
10:36AM    15   it's fi 1 ed in, I want to say, the real property records or
10:36AM    16   maybe probate records.
10:36AM    17                     THE COURT:   But can't you do like a Notice of
10:36AM    18   Appearance?
10:36AM    19                     MS. ANDERSON:     I did, Judge.

10:36AM    20                     THE COURT:   Oh, you did?

10:36AM    21                     MS. ANDERSON:     I did a Notice of Appearance.     I

10:36AM    22   gave Mr. Blumrosen a copy of the Power of Attorney when we were

10:36AM    23   here last time.
10:36AM    24                     THE COURT:   So that he could scrutinize it and

10:36AM    25
                                                                                          14


10:36AM      1                     MS. ANDERSON:   And I specifically wrote asking,

10:36AM      2   when we do this discovery, because he is going to do it as the
10:36AM      3   agent, is that going to be okay with you or are you going to

10:36AM      4   raise the standing issue again?        My guy doesn't want to go

10:36AM      5   through the expense and the work if, when he gives it to him,

10:36AM      6   he says, you don't have standing as the agent under the Power

10: 36Atl    7   of Attorney.     I haven't gotten an answer.     I got my answer

10:36AM      8   today, I guess there is still a standing issue.        You see?     So

10:36AM      9   there is no way I can go, you know, if I'm giving it to them, I

10:36AM     10   have standing.     If I don't do it exactly correct, I don't have
10:37AM     11   standing.    And so what we are doing is everything that's being

10:37AM     12   asked for.     My guy has already gone to the prison once.        He is
10:37AM     13   there this morning to verify and get the Answer signed.           And
10:37AM     14   they are getting it.     And that's all we have.     What there is is

10:37AM     15   all we have.     I don't know what else we can do.     The only thing
10:37AM     16   that we are wanting is the release of the Social Security money

10:37AM     17   and the 401K plan.     If there is an issue over the 401K, so be
10:37AM     18   it, don't release it.     Just release it all to her except the

10:37AM     19   401 K plan because we have an issue on it.      And then everyone

10:37AM     20   gets their money.    A 1ot of it.
10:37AM     21                     THE COURT:   Okay.   All right, well , 1et me, I

10:37AM     22   mean, all I can do is just scrutinize both proposals and just

10:37AM     23   decide like which one and look at the distinctions.        I just
10:37AM     24   want to be c 1ear on the nuances of each one and why it's, you

10:3BAM     25   know, see if I can really agree one way or the other that it's,
                                                                                  15


10:3BAM    1   you know, one is harmful or one is not or one does something
10:3BAM    2   that it shouldn't do at this point, so that's what I need to
10:3BAM    3   1ook at.
10:38AM    4                  MS. ANDERSON:   And please keep in mind, because
10:3BAM    5   you are a 1awyer too, not just a judge, you are going to see
10:3BAM    6 why he wants it his way and why I want it my way as far as --
10:38AM    7                  THE COURT:   Well, tell me.     I mean
10:38AM    8                  MS. ANDERSON:   There is a question of whether or
10:38AM    9   not --
10:38AM   10                  THE COURT:   Because right now I'm thinking that
10:3BAM   11   one is a little more detailed and gives him what he wants, Mr.
10:38AM   12   Blumrosen, and one is not as detailed and more generic and
10:3sAM   13   gives him what he wants.
10:38AM   14                  MS. ANDERSON:   Right.     And nothing gives this
10:38AM   15   side what it needs, which is the relief I came to you with,
10:38AM   16   which is a Motion to Quash, and so we are partially quashing
10:38AM   17   and leaving the rest.
10:38AM   18                  THE COURT:   Quash as to exempt assets.
10:38AM   19                  MS. ANDERSON:   Correct.
10:39AM   20                  THE COURT:   And that's what you were limiting it
10:39AM   21   to?
10:39AM   22                  MS. ANDERSON:   That's it.     And describing those
10:39AM   23   accounts.
10:39AM   24                  THE COURT:   I will look at it.
10:39AM   25                  MS. Anderson:   And those facts are true.     I will
                                                                                             16


10:39AM     1   tell you with the nuance I there are questions that I don It want
10:39AM     2   to, and I have spoken with Ms. Duff, our side doesn't want to
10:39AM     3   get into them if we enter a fair and proper Settlement
10:39AM     4   Agreement.    But whether or not that garnishment was even proper
1o:39AM     5   to begin with is an issue.            We don't care so long as we can get
10:39AM     6   this over with.       But if they are going to, you know, I have got
10:39AM     7   a ten -day 1etter 1 they are going to sue the ex-wife and son
10:39AM     8   now, you know   I   if I di dn It respond within ten days.        Well, I
10:39AM     9   don't represent them and I don't get call backs, so I can It even
1o: 39AM   10   meet his deadline.       So   I   you know, if they are going to start
10:39M     11   that kind of stuff where they are going to be suing people
10:39AM    12   again, then, yeah, I'm going to look into the question as to
10:39AM    13   whether or not what his client did was proper, among other
10:40AM    14   things.   So those are the nuances.              You know, we are getting
10:40AM    15   hit with more than what's before the Court that you are not
10:40AM    16   aware of and these are new threats I new 1awsui ts, and I'm just
10:40AM    17   here to try and end it.
10:40AM    18                       THE COURT:       The allegation would be that the
10:40AM    19   ex-wife or son may have received assets they have gotten
10:40AM    20   pending      whi 1e a $2 mi 11 ion judgment was outstanding?
10:40AM    21                       MS. ANDERSON:       Right.     Before the judgment was
10:40AM    22   entered and before the Temporary Injunction was entered, they
10:40AM    23   used $25,000 to buy the 16-year-old a truck.
1o:40AM    24                       THE COURT:       Okay .
10:40AM    25                       MS. DUFF:      And I believe that all was out of the
                                                                                  17


10:40AM     1   Woodforest account.
10:40AM     2                   THE COURT:    Well, let me look at each one.
10:40AM     3                   MR. BLUMROSEN:    Judge, I'm trying to bite my
10:40AM     4   tongue based on here four-and-a-half years later and making
10:40AM     5   allegations about something being improper and I will just
10:40AM     6   leave it at that.     It's hard to sit here and listen to that.
10:40AM     7   We are trying to do post-judgment call ecti on on Mr. McAfee.
10:40AM     8                   THE COURT:    Well, to me, obviously, I want to
10:40AM     9   follow the law, but to me, I mean, it seems that one way or the
10:41AM    10   other, this eight thousand plus dollars is something you are
10:41AM    11   going to get.   So to exacerbate or to make that into a bigger
1o: 41AM   12   fight, it doesn't seem prudent, but the rest of it, you know, I
10:41AM    13   just -- how close, I mean, do you -- are you hearing things
10:41M     14   that make you think that this is going to get resolved easily
10:41AM    15   or is there something outstanding that he may have that's going
10:41AM    16   to be really -- turn this into more complicated than it already
10:41AM    17   is?
10:41AM    18                   MS. DUFF:    I think the only complexity is going
10:41AM    19   to come up with the 401K.
10:41AM    20                   THE COURT:   Okay.
10:41AM    21                   MS. DUFF:    I think the only complexity is going
10:41AM    22   to come with the 401 K, and that's whether or not we can work
10:41AM    23   out something as to what percentage interest my client waul d
10:41AM    24   have a claim to.
10:41AM    25                   THE COURT:   So you're thinking that you have,
                                                                                       18



10:41AM     1   and I'm not trying to hal d you to this, but that you have a

10:41AM     2   good understanding of what's out there or is there sti 11 --

10: 41AM    3                    MS. DUFF:    We have, over the last four years

10: 41AM    4                    THE COURT:    -- an idea, well, we kind of know

10:42AM     5   some defined assets but we are not clear on a 1at of things

10:42AM     6   that may impact what has trans pi red over these years?

10:42AM     7                    MS. DUFF:    I am reasonably sure that we have

10:42AM     8   found, i f not all , at 1east the vast majority of the assets.

10:42AM     9   That's all we could find.

10:42AM    10                    THE COURT:    That can be enjoined?

10:42AM    11                    MS. DUFF:    Yes.

10:42AM    12                    THE COURT:    Okay.

10: 42AM   13                    MS. DUFF:    And I am reasonably sure that we have

10:42AM    14   everything.    I am reasonably sure that the Inventory accurately

10:42AM    15   reflects what was out there.         The two issues, which one we

10:42AM    16   could see, the Woodforest, is that's all SSI money.         My client

10:42AM    17   has no claim to that.    We can see that.       As long as that's an

10:42AM    18   accurate statement, it's all SSI.         The 401K, I think which is

10:42AM    19   where the majority of the assets at GMS are, I believe that is

1o:~M      20   where there will have to do some negotiating, and it depends on

10:43AM    21   what my client wants to do.      And the rest of the assets, I

10:43AM    22   think that my client what's reflected in the Inventory he has a

1o:43AM    23   c l aim to .

10:43AM    24                   THE COURT:    Okay.

10:43AM    25                   MS. DUFF:     I believe that it's accurately
                                                                                       19


10:43AM      1   reflected.   She may complain that there was several different
10:43AM      2   Inventories that we had to go through, a 1ot.
10:43AM      3                   THE COURT:   And yours may be more difficult in
10:43AM      4   the sense that, whether this is true or not, I don't know,
10:43AM      5   obvious 1y, but that you have really tracked down everything
10:43AI1     6   that's out there to satisfy a judgment?
10:43AM      7                   MR. BLUMROSEN:    I can't      we are attempting to
10:43AM      8   do that but that's obviously the point of post-judgment
10:43AM      9   discovery which has never been responded to.
10: 43AI1   10                   THE COURT:   Okay.     All right, well --
10: 43AI1   11                   MS. ANDERSON:    Judge, if I could just clarify
10:43AM     12   that on the assets, and of course our position is as far as I
10: 43AM    13   know that's everything, but they have been correct since their
10:43AM     14   original inventory, which is X amount of years ago.          Okay?   So
10:43AM     15   they may have changed the characterization, they may have
10:44AM     16   changed the values, but as far as, you know, maybe there is a
10:44AM     17   little account here or a little account there that they added
10: 44AI1   18   but there are no major differences.       I mean, they have been
10:44AM     19   correct since the beginning other than the values.          And that's
10:44AM     20   concerning because of course, you know, if something is really
10:44A11    21   worth $800,000 and they only put it for $400,000, then there is
10:44AM     22   only a credit of 200,000 toward the judgment.        And so there may
10:44AM     23   be disagreement on the values.       I don't care.   In the end, it's
10:44AM     24   only going to affect Mr. Bl umrosen on how much goes into his
10:44AM     25   pocket.   So as 1ong as we can settle that, then there shouldn't
                                                                                    20


10:44AM    1   be any issues, any other issues.
10:44AM    2                     THE COURT:    All right.
10:44AM    3                     MS. DUFF:    And, Your Honor, with regard to the
10:44AM    4   Inventory, this Inventory was created with, what, a week of
10:44AM    5   discovery without any part i ci pati on by the previous attorneys
10:44AM    6   for Mr. McAfee.     This was done by a 1 ot of discovery on our
10:44AM    7   part on 1ooki ng for assets.
10:44AM    8                     THE COURT:    Right.
10:45AM    9                     MS. DUFF:    That's how we created the Inventory.
10:45AM   10                     THE COURT:    Right.
10:45AM   11                     MR. BLUMROSEN:    I think it's important for the
10:45AM   12   Court to know that because at the present time that Mr. McAfee
10:45AM   13   was charged with murder he used the fifth amendment, which was
10:45AM   14   fine, but I'm just saying to say that we have done everything
10:45AM   15   and know everything without any participation from Mr. McAfee,
10:4SAM   16   so if there are assets out there that he has hidden, we don't
10:4sAM   17   know about that.
10:45AM   18                     THE COURT:   Well, that's what I was going to say
10:4SAM   19   is, I mean, I just sort of wanted to get a feel for where you
10:4SAM   20   were, but I understand that this thing is going to continue at
10:4SAM   21   1 east in some respects until there is a comfort 1evel with what
10:4SAM   22   may be out there and how these things can get resolved in some
10:4SAM   23   fashion.
10:45AM   24                     MR. BLUMROSEN:    As the Court knows, assuming
10:4sAM   25   that we at 1 east get the eight thousand and change on the
                                                                                     21


10: 45AM    1   wrongful death action, that doesn't come close to covering it,
10: 45AM    2   so the post-judgment, the abstract, the writ of execution, it's
10: 45AM    3   all still out there, so if we ever, in five years, six years,
10: 45AM    4   come across an asset, we will still be there trying to collect
10: 46AM    5   on it.
10:46AM     6                  THE COURT:    I understand.     All right, I think I
10:46AM     7      let me look at these proposed judgments or order and I will
10:46AM     8   do something, hopefully, by tomorrow afternoon.
10:46AM     9                  MS. ANDERSON:    Sounds good.     Thank you, Judge.
10:46AM    10                  THE COURT:    Thank y'all.
10:46AM    11                  MR. BLUMROSEN:    Thank you, Judge.
10:46AM    12                  MS. DUFF:    Thank you, Judge.
           13
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                                                                     22


 1                       C E RT I F I CAT E
 2   COUNTY    OF   HARRIS   *
     STATE    OF     TEXAS   *
 3
           I, Donald G. Pylant, Official Court Reporter in and for
 4   Probate Court No. 1 of Harris County, State of Texas, do hereby
     certify that the above and foregoing contains a true and
 5   correct transcription of all portions of evidence and other
     proceedings requested in writing by counsel for the parties to
 6   be included in this volume of the Reporter's Record, in the
     above-styled and numbered cause, all of which occurred in open
 7   court or in chambers and were reported by me.
                      I further certify that this Reporter's Record
 8   truly and correctly reflects the exhibits, if any, admitted,
     tendered in an offer of proof or offered into evidence by the
 9   respective parties.
                      I further certify that the total cost for the
10   preparation of this Reporter's Record is $154.00     and will be
     paid by   Esther Anderson
11
           Given under my hand and seal of office this the   7th   day
12   of   August , 2015.
13
14
                                    Is/Donald G. Pylant
15                                  Donald G. Pylant, C.S.R.
                                    Official Court Reporter
16                                  in and for the County of
                                    Harris and the State of
17                                        T E X A S.
18   Certification No. 668   Exp. Date: 12-31-2016
     Probate Court No. One 201 Caroline Street, 6th fl.
19   Houston, Texas 77002 (713) 368-6692
20
21
22
23
24
25
            Tab9
Order Partially Granting Motion
to Quash Writs of Garnishment
                    \   .
                                                            CAUSE NO. 396935-401


                            INRE
                            JANET F. McAFEE,
                            Deceased
                                                                      §
                                                                      §
                                                                      §
                                                                                  IN THE PROBATE CO~RT ~

                                                                                  NUMBER ONE        ~n
                                                                                                                  ...
                                                                                                                   -·
                                                                                                               jf ...
                                                                                                                  !:;..; ·
                                                                                                                  ~
                                                                                                    <nO
                                                                      §                             ni
                            ROSEMARY FOLYN and                        §                            0~~
                                                                                                   @-<
                                                                                                                  w           "''T
                                                                                                                             r=

                                                                                                                 .
                                                                                                                  Q
                            JAKE FOLYN                                §                            ~:?~                      ~
                                                                                                                 ~
                                                                                                   ~l .,co
                                                                                                                             C
                                                                                                                             .::'
                                                                      §                           tn::.;
                                                                                                  '<
                            v.                                        §           OF              "'"      .
                                                                      §
                            THE GMS GROUP, LLC and                    §
                            WOODFOREST NATIONAL BANK,                 §           HARRIS COUNTY, TEXAS
                            Defendants


                                        ORDER PARTIALLY GRANTING MOTION TO QUASH WRITS
                                          OF GARNISHMENTrANC el&8~b:'JING INJtjUOl"IGNS-


                                  On this day came to be considered the Motion to Quash Writs of Garnishment

                            filed by Charles Storer, Power of Attorney for Kenneth Cooper McAfee. After review

                            and consideration of said Motion, the evidence, the responses, and the arguments of

                            counsel, the Court finds the following:

                            1.     Judgment for damages in the amount of $2,000,000.00 plus pre and post

                                  judgment interest and court costs was entered by this Court on March 21, 2014

                                   in Cause Number 396,935-401;              Rosemary Foltyn,   Individually and as

                                   Independent Administratirix of the Estate of Janet Foltyn McAfee, Deceased; and

                                   Jake Foltyn, Individually v. Kenneth Cooper McAfee Plaintiffs/Garnishors herein

                                   executed two writs of garnishment directed at The GMS Group, LLC, ("GMS")

                                   and Woodforest National Bank ("Woodforest").

                            2.     The GMS account ending in 606 (SSN xxx-xx-4352) and the Woodforest account

                                   ending in 404, hold assets in the name of or for the benefit of Kenneth Cooper

                                   McAfee.

                            3.     The GMS account ending in 606 (SSN xxx-xx-4352) is an individual retirement
                                                                          ORDER
                                                                          PAGE1




     Confidential information may have been redacted from the document in complia nce with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, T exas



                                                         Deputy
   St~r11ng   G. Senechal Ill
                     \   .

                                    account for the benefit of Kenneth McAfee that qualifies for federal income tax

                                    deferral. Such account holds, exclusively, funds exempt from garnishment under
           ~J
           ('J
           0                        Tex. Prop. Code. §42.0021(a).          Because such account is exempt from
           0
           a..                      garnishment, the writ directed to the GMS as to Kenneth McAfee's account
           t;r
           0                        ending in 606 (SSN xxx-xx-4352) should be quashed. All other accounts at GM$
            (")
            ...                     that hold assets of, or are for the benefit of, Kenneth C. McAfee or Kenneth
           !J"'J
            ....                    McAfee remain subject to the writ.
            c
           N                 4.     Further, GMS Group, l.L.C., is indebted to Kenneth Cooper McAfee ("Judgment
           0
            0')
            <""                     Debtor") in the amount of $6,694.39 and account number 55H056008 and
            0
                                    $1,661.15 in account number 55H004628 for a total of $8,355.54.

                             5.     The Woodforest account ending in 404 holds, exclusively, social security benefit

                                    proceeds of Kenneth C. McAfee which benefits are exempt from garnishment

                                    under 42 U.S.C. §407. 42 U.S.C. provides an absolute exemption and there are

                                    no statutory exceptions to same. Because the Woodforest account ending in 404

                                    contains only funds exempted from garnishment, the writ directed at Woodforest

                                    as to Kenneth McAfee's account ending in 404 should be quashed.         All other

                                    accounts at Woodforest that hold assets of or for the benefit of Kenneth C.

                                    McAfee or Kenneth McAfee remain subject to the writ. It is therefore,

                                  ORDERED, ADJUDGED AND DECREED that the writs of garnishment directed at

                             (i) GMS Group, LLC, for the account number ending with 606 (SSN xxx-xx-4352) in the

                             name of and belonging to Kenneth McAfee, and (ii) Woodforest National Bank for the

                             account number ending with 404 in the name of and belonging to Kenneth C. McAfee

                             are QUASHED. It is further,




                                                                         ORDER
                                                                         PAGE2




     Confidential information may have been red acted from the document in compliance with the P ublic Information Act.


A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Har r is County, Texas




.A..ML
    Sterling G. Senechal Ill
                                     o                   Deputy
                            ORDERED, ADJUDGED AND DECREED that all other accounts at GMS Group

                         LLC, and Woodforest National Bank that hold assets in the name of Kenneth McAfee or
            tj'
            Cl')
                         for the benefit of Kenneth C. McAfee remain subject to the writs.                 Specifically,
            0
            0
            (1,          Garnishors, Rosemary and Jake Foltyn shall recover against the GMS Group, L.L.C.,
            ~            the sum of $8,355.54, such sum to be credited to the judgment entered in the wrongful
            0
            (")
            ,..          death judgment. It is further,

            If:
                            ORDREED, ADJUDGED AND DECREED that the payment of such sums as set
            0
            C\l
            0            forth above shall issue from funds of the judgment debtor, Kenneth Cooper McAfee,
            Q')
            ,~

                         currently being held by Garnishee, the GMS Group, L.L.C., from the following accounts:
            a
                         $6,694.39 in account number 55H056008 and $1,661.15 in account number
                                                                 ;;; Uf>OA. r~r 6f'    a,... order reletJ.st~ k
                   f/t   55H004628 for a total of $8,355.54 tt is further,
                                                           1

                            ORDERED, ADJUDGED AND DECREED that Garnishee, The GMS Group, L.L.C.

                         shall immediately send $8,355.54 payable to Deam M. Blumrosen, Attorney, at 4

                         Southwest Freeway, Suite 850, Houston, Texas 77027.1t is further,


                                OROISREO, ADJUDGED AND DEGREISQ tl:lat               tre   Agreed Order for Temporary

                         Injunctions in Cause No. 396,935; In the Estate of Janet Foltyn McAfee, Deceased,

                         dated June 8, 201 \, ito dissotyed and all assets aeserieed ttlereiA, aAa iA partis~:~lar, the

                         GMS a~~91:1 At 8RGiR~ iR   see and Ute 'Nuudforest eeeel:!Rt eAaiAg it I 404, arEfl"eleased. c..




                                                                       ORDER
                                                                      PAGE3




      Confide nt ial in formation may have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas



.11;_-d.d__ . G?
       Sterling G Senechal Ill
                                                       Deputy
                                SIGNED this _ ____,2::oL,L7_;it;
                                                           __




                       ANDERSON PFEIFFER, PC


                       By: Esther Anderson
                                           Wh-~
             tn        SBN: 00792332
                       845 FM 517 West, Suite 200
             0         Dickinson, Texas 77539
             N         Office: 281.488.6535
             0         Facsimile: 281 .614.5205
             ~)        Email: esther@probateguardianship. com

             0          Of Counsel:
                        Robert Teir, PLLC
                                          fo~+ ~~~                     W/ ~ ~                   Cf ,4
                        By: Robert Teir
                        SBN: 00797940
                        845 FM 517 West, Suite 200
                        Dickinson, Texas 77539
                        Office: 832.365.1191
                        Facsimile: 832.550.2700
                        Email: rob@teirfaw.com
                        Attorneys for Charles Storer,
                        POA for Kenneth Cooper McAfee


                        Mitchell & Duff, LLC


                        By: Mary Elizabeth Duff
                        SBN: 06166880
                        210 Main Street
                        Richmond, Texas 77469
                        Office: 281-341-1718
                        Office: 281 -341-5517
                        Attorney for Estate of Rosemary F. McAfee, Deceased



                        By: Dean M. Blumrosen
                        SBN: 02517900
                        4615 Southwest Freeway, Suite 850
                        Houston, Texas 77027
                        Office: 713-524-2225
                        Facsimile: 713-524-5570
                        Attorney for Plaintiffs/Garnishors, Rosemary and Jake Foltyn


                        N:IStorer, Cha~es\Onlers\Order Granting Motion to Quash (not agreed).docx

                                                                                    ORDER
                                                                                   PAGE4




       Confidential information may have been redacted from the document in complia nce with the Public Information Act.


  A Certified Copy
  Attest: 9/29/2015
  Stan Stanart, County Clerk
  Harris County, Texas



 JA.~~A
      ~·A~~
         f ~Q~Deputy
~rling G. Senechal Ill
         Tab 10
Motion to Partially Release
 Temporary Injunction
                                                                                                                           FILED
                                                                                                            2110/2015 2:08:22 PM
                                                                                                                    Stan Stanart
                                     DATA-ENTRY                                                                     County Cieri<
                                                                                                                   Harris County
                                     PICK UP THIS DATE                                  PROBATE COURT 1

                                                            CAUSE NO. 396,935 -'-i 0\

                       IN THE ESTATE OF                             §      IN THE PROBATE COURT
                                                                    §
                       JANET F. McAFEE,                             §      NUMBERONE
                                                                    §
                       DECEASED                                     §      HARRIS COUNTY, TEXAS

                                   MOTION TO PARTIALLY RELEASE TEMPORARY INJUNCTION

           0                  COMES NOW Charles Storer, Power of Attorney for Kenneth McAfee, and files
           N
           (IJ         this is Motion to Release Injunction and would show the Court the following.

                              All Exhibits referenced are attached and incorporated herein by reference as if

                       set out in full for all purposes.

                                                              BACKGROUND

                       1.     On June 8, 2011, all parties to the above stated cause entered an Agreed Order

                              for Temporary Injunction. See Exhibit "1."

                       2.     On January 27, 2015, the Court entered an Order Partially Granting Motion to

                              Quash Writs of Garnishment as to two accounts:

                              a.      Woodforest account ending in 404, in the name of Kenneth Cooper

                                      McAfee exclusively holding social security assets of Kenneth Cooper

                                      McAfee; and

                              b.      GMS account ending in 606, an individual retirement account of Kenneth

                                      McAfee. See Exhibit "2."

                              The Court further ordered that all other accounts at GMS Group, LLC, holding

                              assets of Kenneth McAfee be subject to the writs such that Rosemary and Jake

                              Foltyn recover $6,694.39 in account number 55H056008 and $1,661 .15 in

                              account number 55H004628 for a total of $8,355.54 from GMS Group, l.l.C.,


                                                     MOTION TO PARTIALLY RELEASE INJUNCTION
                                                                   Page 1 of 4




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



A-<~4.. o
     Stetitng G: SeneChal Ill
                                                       Deputy
            (")
            N                 upon receipt of an order releasing the Agreed Order for Temporary Injunction
            ()
            0                 which is the subject of this Motion. /d.
            n.
            1!1        3.     Storer asks the Court to enter an. order partially releasing the June 8, 2011
            -~
            co                temporary injunction as to the following three accounts:
            0
                              a.      Woodforest account ending in 404, in the name of Kenneth Cooper
            U1
                                      McAfee exclusively holding social security assets of Kenneth Cooper
            '~
            C\l
            ('~                       McAfee, to Kenneth Cooper McAfee;
            l'""

            Cll
            0                 b.      account number 55H056008 holding $6,694.39 at GMS Group, LLC, to

                                      Rosemary and Jake Foltyn, c/o Dean M. Blumrosen; and

                              c.      account number 55H004628 holding $1,661.15 at GMS Group, LLC, to

                                      Rosemary and Jake Foltyn, c/o Dean M. Blumrosen.

                      4.      All other accounts and assets described in the June 8, 2011 Agreed Order for

                              Temporary Injunction should remain subject to the temporary injunction.

                              WHEREFORE PREMISES CONSIDERED, Charles Storer, Power of Attorney for

                       Kenneth McAfee, prays the Court enters an order granting his Motion to Partially

                       Release Temporary Injunction and for such other relief, at law or in equity, as he may

                       be justly entitled.




                                                   MOTION TO PARTIALLY RELEASE INJUNCTION
                                                                 Page 2 of 4




      Confidential information may have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/201 5
 Stan Stanart, County Clerk
 Harris County, Texas



..,~
   .h;
     ~~~'d
        J.I. ._. ~·-~
                    Q~Dieputy
       Sterling G. Senechal Ill
           '\I
           N                                                 Respectfully submitted,
           (j
           0
           0..                                               ANDERSOq;:;;.~Qf!SJ
           Ln
                                                             By: Esther Anderson
           ""co                                              SBN: 00792332
           0                                                 845 FM 517 West, Suite 200
           ~/'}
                                                             Dickinson, Texas 77539
           ...                                               Office: 281.488.6535
           0                                                 Facsimile: 281.614.5205
           N                                                 Email: esther@probateguardlanshlp.com
           (",,
           ,.
           N
           0                                                 Of counsel on the Pleading:

                                                             Lsi. 1Woert 'T'eir.
                                                             RobertTelr
                                                             Robert Telr, PLLC
                                                             845 FM 517 West, Suite 200
                                                             Dickinson, Texas 77539
                                                             Office: 832.365.1191
                                                             Facsimile: 832.550.2700
                                                             Email: rob@probateguardianship.com

                                                             Attorneys for Mr. Charles Storer, Power of
                                                             Attorney for Kenneth McAfee




                                              MOTION TO PARTIAlLY RELEASE INJUNCTION
                                                            Paga 3 of 4




     Confidential inform ation may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



_ _h;u_
      sterling G Senechal Ill
                              Q                 Deputy
            irl
            c,;                                                   CERTIFICATE OF SERVICE
            <::
            c                I hereby certify that a true and correct copy of the foregoing has been forwarded
        1   Q,
        i   ••       to all parties and/or counsel of record through our electronic seryjce provider, certified
        !
        I
            u1
            ~M
                     mail, return receipt requested and/or facsimile on this                               I
                                                                                      D /tv day of February,
        i   co        2015.                                                                         ~ Ondij'~
        i (;
        ~
                                                                                  Esther Anderson
            ;I;
        i ,.•.
                      cc:       Mary Elizabeth Duff
        j ~'
        I l\j                   21 0 Main Street                                  VIA ELECTRONIC SERVICE PROVIDER &


        l~
                                Richmond, Texas 77469                             FACSIMILE 281-341-5517

                                Matthew E. Lipman
        i ()                    Faust Oppenheim LLP
        l                       488 Madison Avenue                                VIA ELECTRONIC SERVICE PROVIDER &
        I                       New York, New York 10022                          FACSIMILE 212-371-8410
        i
        I
                                Dean M. Blumrosen, Esq.
                                4615 Southwest Freeway

        I                       Suite 850
                                Houston Texas 77027
                                                                                  VIA ELECTRONIC SERVICE PROVIDER &
                                                                                  FACSIMILE 713-524-5570


        l                       Woodforest National Bank,
                                through their registered agent
                                James D. Dreibelbis
                                25231 Grogan's Mill Road
                                Suite100                                                                                   .J ~ ~g   Sl
                                The Woodlands, Texas 77380                        VIA CMRRR            q Ll N '1 \Oa W88 150,   1P   _

                                Charles Storer




                       N:\Siorer, Charles\Pieadlngo, Motions, AppllcaUona\Mollo Release lnjuncllon.doe>e

                                                              MOTION TO PARTIALLY RELEASE INJUNCTION
                                                                            Page 4 or4




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
                 JAN-27-2015 15:25 From:7133686701                                  To:92816145205
                      \



                                                          CAUSE NO. 396936-401


                          INRE                                       §    IN THE PROBATE COURT
                          JANET F. McAFEE,                           §
                          Deceased                                   §    NUMBER ONE
           Ul
                                                                     §
           ro             ROSEMARY FOLYN and                         §
           \J             JAKE FOLYN                                 §
                                                                     §
           Lf1            v.                                         §    OF
           ("j
                                                                     §
           (
            ,,
            ,,            THE GMS GROUP, LLC and                     §
           (\J            WOODFOREST NATIONAL BANK,                  §    HARRIS COUNTY, TEXAS
                          Defendants

                                      ORDER PARTIALLY GRANTING MOTION TO QUASH WRITS
                                        OF GARNISHMENT,ANC liiiSIOL'ii JUe INIIYIU~'fi9NS..

                                On this day came to be considered the Motion to Quash Writs of Garnishment

                          flied by Charles Storer, Power of Attorney for Kenneth Cooper McAfee. After review

                          and consideration of said MoUon, the evidence, the responses, and the arguments of

                          counsel, the Cour1 finds the following:

                          1.    Judgment for damages in the amount of $2,000,000.00 plus pre and post

                                judgment interest and court costs was entered by this Court on March 21, 2014

                                 in Cause Number 396,935-401; Rosemary Foltyn,            Individually and as

                                 Independent Administratirix of the Estate of Janet Foltyn McAfee, Deceased; and

                                 Jake Foltyn, Individually v. Kenneth Cooper McAfee PiaintiffsiGamlshors herein

                                 executed two writs of garnishment directed at The GMS Group, LLC, ("GMS")

                                 and Woodforest National Bank ("Woodforest").

                          2.     The GMS account ending in 606 (SSN xxx-xx-4352) and the Woodforest account

                                 ending In 404, hold assets in the name of or for the benefrt of Kenneth Cooper

                                 McAfee.

                           3.    The GMS account endln In 606 SSN xxx-xx-4352) is an individual retirement
                                                                    EXHIBIT

                                                           I         1




     Confide ntial in formation may have been redacted from the document in compliance with the Public Infor mation Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Ha r ris County, Texas



AA.d_ .o
      Sterling G senectlallll
                                                       Deputy
                  J~N-27-2015   15:26 From:7133696701                                  To:92816145205



           t...                   account for the benefit of Kenneth McAfee that qualifies for federal income tax
           (\j
           ()
                                  deferral. Such account holds, exclusively, funds exempt from garnishment under
           0
           Ct.
                                  Tex. Prop. Code. §42.0021(a).         Because such account is exempt from
           ll'i
           ~-                     garnishment, the writ directed to the GMS as to Kenneth McAfee's account
           co
           i)
                                  ending in 606 (SSN xxx-xx-4352) should be quashed. All other accounts at GMS
           If',
                                  that hold assets of, or are for the benefit of, Kenneth C. McAfee or Kenneth
           ~··
           0
           N                      McAfee remain subject to the writ.
           C-.!
           ~~
                          4.      Further, GMS Group, L.L.C., Is Indebted to Kenneth Cooper McAfee ("Judgment
           l\1
           Q
                                  Debtor'') in the amount of $6,694.39 and account number 55H056008 and

                                  $1,661.15 In account number 55H004828 for a total of $8,355.54.

                          5.      The Woodforest account ending in 404 holds, exclusively, social security benefit

                                   proceeds of Kenneth C. McAfee which benefits are exempt from garnishment

                                   under 42 U.S.C. §407. 42 U.S.C. provides an absolute exemption and there are

                                   no statutory exceptions to same. Because the Woodforest account ending in 404

                                   contains only funds exempted from garnishment, the writ directed at Woodforest

                                   as to Kenneth McAfee's account ending in 404 should be quashed.         All other

                                   accounts at Woodforest that hold assets of or for the benefit of Kenneth C.

                                   McAfee or Kenneth McAfee remain subject to the writ. It Is therefore,

                                ORDERED, ADJUDGED AND DECREED that the writs of garnishment directed at

                           (I) GMS Group, LLC, for the account number ending with 606 (SSN xxx-xx-4352) in the

                           name of and belonging to Kenneth McAfee, and {il) Woodforest National Bank for the

                           account number ending wHh 404 In the name of and belonging to Kenneth C. McAfee

                           are QUASHED. It is further,




                                                                       01\DER
                                                                       PAOU




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas




A..d.J                   .Q
      Sterflng G. Senechal 111
                                                        Deputy
                  JAN-27-2015 15:26 From:7133686701                                          TD: 92816145205



           (0                ORDERED, ADJUDGED AND DECREED that all other accounts at GMS Group
           N
           Ci             LLC, and Woodforest National Bank that hold assets In the name of Kenneth McAfee or
           0
           a.             for the benefit of Kenneth C. McAfee remain subject to the writs.                    Speclflcally,
           u:
                          Garnishors, Rosemary and Jake Foltyn shall recover against the GMS Group, LL.C.,
           (!l
           (.)
                          the sum of $8,355.54, such sum to be credited to the judgment entered In the wrongful
           Lr!
                          death judgment. It Is further,

                             ORDREED, ADJUDGED AND DECREED that the payment of such sums as set

           ('~            forth above shall issue from funds of the judgment debtor, Kenneth Cooper McAfee,
            "'
           ',.J
                          currently being held by Garnishee, the GMS Group, L.L.C., from the following accounts:

                          $6,694.39 In account number 55H056006 and $1,661.15 In account number
                                                                 ,1t ~ r~t 6'F tU.. ()rdet rekt1Jrf8 k
                          55H004628 for a total of $8,355.54 it is further,
                                                            1

                             ORDERED, ADJUDGED AND DECREED that Garnishee, The GMS Group, L.L.C.

                          shall immediately send $6,355.54 payable to Deam M. Blumrosen, Attorney, at 4

                          Southwest Freeway, Suite 850, Houston, Texas 77027.1t is further,


                                 OR.DsRE[) 1 ABdl:JDOED ANB BECRE!!C.#lat ~Agreed Order for Temporary

                          Injunctions In Cause No. 396,935; In the Estate of Janet Foltyn McAfee, Deceased,

                          dated June 8, 201 ~ Ia dlssol~d     and   all aisets-de&efibefj thereiAt aRe 11'1 J'BI'tlslllar, the

                          eMS a~::oo~:~Rl &R9iRII iR GOO ar rd ll re Wwdforest eeeo~:~At eAsing iJ • 404, are released.    C.




                                                                         DIDI•
                                                                        PAOE3




     Confidential infor mation may have been redacted from the document in compliance with t he Public I nfor mation Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



--~
  Lt;
   ~,~4,
       ~·'4-
          ~~ Ctt~Deputy
       Sterling G Senechal Ill
                   JAN-27-2015 15:26 From:7133686701                                                      To:92816145205



                                   SIGNED this _           __,2~7-14
                                                                 __

           U'\
           ,.~




           l'O
           0               ANDERSON PFEIFFER, PC

           \li                               ~~
                           By: Esther Anderson
           0               SBN: 00792332
           C\J             645 FM 517 West. Suite 200
                           Dickinson, Texas 77539
           ,.(I/           Office: 261.488.6535
           c~              Facsimile: 261.614.5205
           0               Email: estfler@probsteguerdlsnship.com

                           OfCounsei:
                           Rober1 Teir, PLLC
                                             fo!uf         t.t.-4, V1 ~ ~ 9t4
                           By:   Robert Telr
                           SBN: 00797940
                           845 FM 517 West, Suite 200
                           Dickinson, Texas 77539
                           Office: 832.365.1191
                           Facsimile: 832.660.2700
                           Email: rob@telrlew.com
                           Attorneys for Charles Storer,
                           POA lor Kenneth Cooper McAfee


                           Mitchell & Duff, LLC


                           By: Mary Elizabeth Duff
                           SBN: 06166880
                           210 Main Street
                           Richmond, Texas 77469
                           Office: 281-341-1718
                           Office: 281-341-5617
                           Attomey for Estate of Rosemary F. McAfee, Deceased



                           By: Dean M. Blumrosen
                           SBN: 02617900
                           4615 Southwest Freeway, Suits 860
                           Houston, Texas 77027
                           CHfica: 713-624-2226
                           Facsimile: 713-524-0570
                           Attomey for Plalntlffs/Gamishors, Rosemary and Jake Foltyn


                           N:~torer, Charlet\Ordeft\Order Granllng   Molioll to Q\lnh (notagreed).doc><




     Confid ential in formation may have been r edacted from the document in com plia nce with the P ublic Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas




A44  Stertlng G.
                               e2
                    Senechal Ill
                                                                     Deputy
                                                                                                                 To:92916145205
                  JAN-27-2015 15:26 From:71336B6701




                                                                  JUDGE LOYD WRIGHT
                                                              Harris County Probate Court No. 1
                                                                    201 Caroline, 6111 Aoor
                                                                   Houston, Texas 77002
                                                           Phone 713-368-6700 Fax 713-366·7300

           lil                FROM:
           0                  Judge Loyd Wright                           Kimberly Hightower                        Susie Rowley
           (\,)
           N
                            ...JWfi(Ann Stile5                            Kevin Scott                               Betty Hazlewood

                              Pam Speer                                   Cres Machicek                             Anthi Pavlicek

                              Toni Williams                               Renae Brown                               Don Pylant




                              PAGE_j_op_s:

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                              USU UFl11f. I\Ert\IPIP.NT NAMP.O MOVE. IP YOU IIAVE REC:~!VP.O Till$ 'M!U!C"OPY IN ERROR. PUiA.,f.lloiMF.!ll/ITF.I.Y
                              NOTII"' US SY Tf.I.EPIIONF. TO 4RR~<ie FOil RI!TVRN llFTliF. ORIGINAL OOCUMENT11 TO US /1140 YOU /IJU! HEAney
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                              I :Wi llW~1rd\cnlac"fU0l




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



~~
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      ~· '~4 - ~
               Q~,Deputy
                    G. Senechal Ill
                           01/07/2015    16:39                                                                    .•_f.11> .. -----...:P..:;:.0:.:.13:::.1.;;;02;.;4~
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                                          beulnJ onJnn 9, 2011. Thb agreement is ovidonoed by colllllala' •lsnaiiUea bolow.
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                                                                                       hCID




                              EXHIBIT

                       I       2




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Harris County, Texas
                                                                                                                                                                      P.0141024
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                                                                                                     ~~'l,.o••
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                           ~
                                                                              cL S5H.00361~.                          ~


                           ~
                                                                              c. S.Slf.034914


                           ~
                                                                              f, SSK·850012

                                                                              B· S5H..Q42479
                                                                              b. SSH-008207

                                                                              i. 98!1.034511
                  (

                  \.   -·                                                    J,    996-66060

                                                                              lc. 989·03SOD
                                                               2.          AtfoJ 811d.ell ~sln OMS~- all otwhlohatoJIIIIIWIICdto                                              I


                                            corrtaln camn:nmltyt\lnda 1.114/or funds bDiouslni to               t\s.tatc; ~ th~r~      IIIDU ofKeanelh   Mo~c                 j.
                                            or Janet Jl, MoMea,lnd!vld\Wb'i (II) Kalnlllh M~~· MoMoejoii\Uy: (Iii) wlllab
                                            DIIIDII one~ ar both ofthem u asl81Jatol)'l (lv)wh!ah~ the aare, ouSIDdy,~:a~~bol, Car
                                           Aslelf'I''"'II.,.IY'-JIIUIIea                           ltfiD

                                                                                                                                ,.
                                            tb6 b1!110111. or on behalfof'ICeD!IIIIhMo.Afto 1111dlor111DDI ~lvld\11lly orJDinlly; 1111d (v)
                                                                                                                          'lll"'l"~-


                                                                                                                            . ~-·~ .
                                                                                                                           ~-~,~~
                                                                                                                                                                              I


                                                                                                                                                                              !
                                                                                                                                                                              ;.




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



-~
 .ft
  ~_d,
     ~·'--'J..---.~·
        -11 Q       ~_Deputy
       Sterling G. Senechal Ill
                  0110712015      16:40                                                                      ....J~'l:!!<t...-----.....!P..::.0~1.:::51,:::02::::4_
             ,    , • ,   0&/0B/20U !!liD     II ZO   IIIX 7132243111       r.aw Offioe                                                    00UI,P11

                            06/0'7J~D11     10:58 MltcheU &DUff Attorneys at liiW                                                       P.0041011




                                    under 1111)' adchet• relalld to ah&er of'lll4ln, IVdlu a.prevlouarealdaa~~~~o !dative, ~antalivc, or
           :f'l
                                    atu~mey'a e.ddron~ 01.'11DlllJ)811Ywhioh did bull!ncas on bDhalfof6ilhllr Kt2111DihMcAfec or Janet!I.

                                    MIIAftlo or whl4h wu o'I'IIIOd in wbolo arm pan by e.ttberorboth at!ham. 'Ihll ~ J:noludo,
           lJ"i
           ...                      but are not limltDd to, lba 1bllowlllg:
           ()
           c~
                                                                            1, PO llax 66552, H11111tm1 !CIXIII• ?n66
           N
                                                                        2. PO Box. 460786 HoNiallo 'l'elW, 770511
                                                                            3, 66SO Jlald!ald Sttut Boustoll, Ta;(as, 77023

                                                                        4. 21l9 Tlnaley Houa1all, TCIXU, '1700S
                                                      ~:.          WOODI!ORJSTrJA'llONAL BANK
                                               ~~~ and'~    Atsy              •• alii WoodtoratNalfollll !ank IOOllllllll, Ill otwhlah 11r11

                                   presumed !o ~ntaln CIIIIDJUunl~~~
                                                                     ' I'
                                    K0D11oth MoAibo or Jwt Jl, M




                                    eitharXe1111eth MiiAfoo ar lwtP. MoA1io orwhlc:h Will owued lA wholo orin partby

                                    of1hem. T~ ~csinclude, but a:o not lbnited to, tho 1bllawln1:
                                                                a. PO Box 66352, &ul!on Tcrxu, 772.66

                                                                b. PO Box 460786 HoultDD, Texaa, 71056
                                                                o. 66SO PalrJieJcl l!treot Hollltoll, TOliQ, 77023
                                                                d. 2119 Taogley Ho1181DD, Twa, 'l70DS




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas




A~~~-~<4Llt:::::.~O~n,eputy
                  m
       Ster1ing G Senechal
                   0110712015    16:41                                                                                                                  P.0161024
                    • ,   0,/01/aOU no     Ja U    FAX, 7U2ZU111 Lav Olfica                                                                    liiD08101~


                            061071Z011   fO:&B Hltchall I IJUrt Attorneys at LBII
                                                                                                             ~134UJI7
                                                                                                                                            P.OD!/011
                                                                                                    '
           "'
                                                                                                  -~
           ('j
           0
           ,.,
           v
           0..                                                                                    ··A"'
                                                                       BANKOF~:. ,.
                                                  4.      Any and all tw141.111 Btllk          of-~ aocoun'll, all ot ~ab ~
                                  pn!1IIIDilKI to clllltlln ~:U~~D~~un!ty 1\ind& ll!ld/or t\lndu ~o &late, (I) in lhe     ot     lliiiiiO

           111
                                  Xonnelh MaA.illo or JOD.Ot F. M~o, Inc!l\'lclu~~l) ~ Mc:AfiG llld. 11111d F. MaAteo

                                  JalmlYi (ill) whlllbliiiDICis one or both oflhDm u a ~~~~h ooniAins t\mds In1ho ouo,
           (:)
           N
           1:'-j
                                   culltccly, oontrol, !or lhe ~ or on beiWf of ICCIIIIOib MoAfae ll!d/or Janet P. McAJ'ae,

                                  lndlvlc!ually or Jolu!ly; and (v) UIJder aey ddJCJ~ rela!ecf Ill olthM of them, 811r.h u a provlou.s
                                  reside~~co, rolativo, rDpmontatlve, or attorotY'• addren. orr.wb!oh did blllinoll 011.bellaltd

                                  eitherKC~~~~~etb MoA&Io or JautP.MIIA.tia or~ell In whole or.In pattb)'ollhororbolh
                                  otthem. no adl!reiSOI laolucle, but Ito II.DI ~~ifoUowislg:
                                                              a. PO Box 66352~~-, 77266

                                                              'b,   PO'Sox4~J!.i'f!• Te:ta~, 71056
                                                              b,    6650 F~~d Sbtet        il!uston, Texea, 71G2S
                                                              d, 21J!l Taf.l.oy_.~uej\· Texu, 71005             .


                                                  $,     All)' and aU

                                  Bllllk, Jnoludlng but not Umlted to'o ~llow!Qs, all of'whlob a:za prenmcd to ooll.laln 00111.111=!ly
                                                                        ~
                                  t.lnda 1111!1/or lilnds bolondng to ~~~~
                                                                              ~
                                                              a. 1:1;010·
                                                                      .·47049-0ll
                                                             b.         ...
                                                  6,     Any                        BBVA eompu, eoooiiii1!1 !Dcludlag laredo Natloaal

                                  Bank. aU o!whlch pre. pr:ii!IU1~1lJ
                                                                                                                                                             I.
                                                                                r:. McAfee, Individually; (ll)Kai'.DIOth McAAo ll!ld181l01
                                                                               hfU



                                                                                                                                                             ..
                                                                                                                                                             !




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



~~h;
   ~
   : ~4~'d'=-
          · _..-~~'*'~Deputy
       Sterling G. Senechal Ill
                          011071201 s   , 6:41                                                                                                                    P-0171024
                             ~                                                                                                                              11001/0U
                                 U/U/201L WID         h 2\    PAll lll114llll LaY Ottioa
                        ~.I

                                   OBI0712D11    10:511 HitCheD &Durt Attomays et Law                                                                 P.OOiiOit
           U'i
           C!'J
           0
           0
           0.
                                          F. MoAt\sejolntl1; (Ill) whlah 111111111 ono ar bolh of!hem. ea aa!snmorr. (iv) ~llh Clll\la!D fllndlln
           U'i
                                          tlus ~ watody, oontJOI, !ot tho benoflt, or an behalf otXmmolh MoAfee811d/or1wtF'. M~ · , .
           co                                                                                                                                             ....   .,   ·~
           0                              l11dlvidually at joln1ly1 and (Y) 'lllldet lllf I~U relaled to dther atfbalo, 111ab as a                                    ·~   •
           !f'1                           J'lllldOllce, roblive, repraa111111lin, ar a.tr.amsy'a addrua, otCXlii\Jlllllf'Whlcb dld.IIU&IJ~~
           !'"'
           0
           N                              c:dtharKMneth.MoAfl:olll' 11!11DtP.MoA1bo 11twhlah w.sowncd lnwholcsariD1l, .                      ~.~.. ;"
           N
           ·-                             af1hom. The addlwe:s Include, but are 110t llolllel! to, !he foUo.wlus:                       .           ·••
           C\1
           0                                                               L                                     ~l\i. •:. .fP
                                                                                 PO Boz 663S.Z1 HOIII!Iln Twa, 77266
                                                                                                                    :~t...     .
                                                                           b,    PO Box 460786 Ho\lllollo T~. 056 4(J' 'ii!}~1
                  (
                                                                           o. 6650'Paitflo1d     StrootHo~:.'              ,77f1l.3,
                                                                                                                           ·'   ~
                                                                           d.    ll19TanpyHDua~:7,700 .. ·,~?·
                      ~                                                                  ~GOJIA
                                                                                                       ...      "
                                                                                                              .1.... ~     ..
                                                                                                                         N.A.
                      Y.Pj                                   1.       Arr/ and all       ~~tj;~~;                        N.A. Rr411111111, ell of wblch In
                                                                      coiiiDlllllf~.~s. . ~r ~~qlas to 1he Jbrato, (I) In Clio IIIDI4I ol
                      ~
                                          proaumed to coDtalll'

                      .t!j                lWneth McA&o or lanot P••:                 ·           ~uel\y; {if) ICmm~th MaMo .ellll 1aut F. MGA!clo
                       ~                  jointly, (Iii) whloh JWnllll    lfor bo          !,hrmas ul~:~~aiDITt (lv) wbloh GOJIIalos tlmdflll tht oaro,
                                                                                         .·,~J

                                          ouatocly,   I;CIIIIm~ tbr tho benefit, or on bthal£ of K.eunlth Mc~o end/or 11110t P. McA.fllo,

                  .,_                     individually~·             y; and (v) IIII.Cic.r 1111 add!el1 rdall:d to eltlu:r af lhAm, aaob as & pmi0111
                                          rcaidenoe, ~vo,                      tativo, orattonsey's addrau, orcompany~lchdld'bllsh!IIUOil behalfof

                                                       IDfl!~~:.!'! or 1a~~~~tP. McAflle ar which wu ov.~~~ad!a Wholt ortn part'bye!therorbolh

                                                             ..   e~ses lnaludc, but lllC 11Dt llmilod to, tho following:

                                                                           a. PO Box 6'6352, Holuto11 Telras. m&&
                                                                           b. 1'0 Box 460786 Houaron, ToRI&, 77056
                                                                           11.   6550 F'alrftold Saect HaUSIDII, Tlllma, 77023
                                                                                              sorla




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
                                                                                                                                                           P.018l024
                      0110712015    16:41
                         •   U/081'10U IIID    h2\     laX 113'Z24)Ul       r.av   QUJ.ce                                                            II!UJ/011


           (!)                 08107/2011     10:58 HitcheD &DUff Attornavntl.lw                                  G'AX!2813411117             P.0071011
           ('1
           ()
           r:,l
           ().

           l[j                                                     d. 2119Tmglay HoUlton, TOlall, 77005

           (0
           (i                                                             CITJDN8 FlNANCrAL GROUP. INC.
           lf1                                         8,      Any 8lld eU fimdJ lnCilizmsP~ Qroup,Iuo.IGOC!UIIll,all ofwhloh111:
           ....
           CJ                         pwumed lo contain oommllllllf .limdl aM/trr 4mds belollg:iD& to tha Bctatt, (!) h1 the 1\111111 of
           ('~
           (\J                        Kameth MaAfec ar JBII~ Jl. McMae, Jndlvl~ (li) 'Kcllnath MM&e ll!ld J~ p, MI!Mhe
           ,..
           (\J                        jDI111lr. (111) wb!ab 111111\0S ono Ill' both ofthem •• • IIIIJI&!aey; (lv) whloh conlefns 1\mda In1ho oue,
           0
                                      e\1110dy, cM~trol, for tllo beaellt or em bllbalf' of Ktmnelh McAAa .,Uor JIIIGt P, MeA~,

                  (                   individually or Jolnt!J': 111111 (v) 1mder allY addtels relW:d II! ei11u:r ar !ham, such aa a pmlow
                                      mlclwo, J'6lative, roprcao!lbltlvD, or~• r.dcl:oss, trrOOit\PII\Ywblcb dld bllllness Dll bebllfot

                                   S~dtM~.f Jw.l:~~MoA!oolirorVIIdchwaaownod Inwl!ole orinpanbyollhororboth
                                     ~~fl&ro1u[&utAr:at~.~o~                                                           . ., . ··~·
                                                                   r:~POBtsem:tW~.g
                                                                   b. PO Box'l60716 How~a. '1'8nl,17056
                                                                                                                              r(·
                                                                                                                              ~
                                                                                                                                 .)p:· ~t~_,,
                                                                                                                                        J'
                                                                                                                                         :;, ·,.i'     %
                                                                                                                                                                 01::. •

                                                                   c. li6SO Palri!el4 Stroot HOUIIDII, Teaw, '171>23

                                                                   d. 2! 19 Taqgl&y Houtt~m, Texu, 77005



                                                                                       m&mNGU&
                                                       !l,     kJr1 1114 ell tunda fu Pcnhlni. LLC acoourttt, Q1 ofwhloh arc~ to
                                      COIItaia COJmDIIIIify t\snda and/or Aulda belOlleiDB to 1ha Ba1ate, (1) flllho 11111110 otxmno!h M~                            Ii·
                                      or Janet )", MaAfeo, Jlldlvldually; (II) Xollneth McAfu 1111d Iwt I, MIIAfco jo!Dtlr, (W) wlllob

                                      111111101 on~ Qrboth of!ham u aaigP.tom ('IV) whfob aontain• tlmdl in1h1101110r aatody, OIIIUtOI,fDr                           I     .I
                                      tha banllfi~ oren behalfotJCesmetk McAfisa md/or JanttP,McA.feo, ll'ldlvlduallyorjoinlly, ami (v)                              Ir
                                                                                                                                                                      I




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



./Lt;..Jd . Q
      Ster11ng G Senechal Ill
                                                                      Deputy
                              0110712015    16:42                                                                                                               P.019/024
                  ,Jiii!!I ,         01/01/2011 IIID 1121     FAX   HS22U~11        lAw OfUce                                                             11)1081011
                      l-.; •
                                                                                                                        fAl02813415St7              P.OOS/011
           r-..       ~
           C'l                   0



           0
            ~~


           "'Cl
                                                                          to e!lhar otthem1sucb ea aprevlo111 realdens:e, relallvo, ~ve, or
           U'l
                                                                      ~    llll)'wblahdldbu.rln•onbobaltofdthor~MCIAleeorJ'anctF.
            (W
            (I
                                                                               ni wbolo or In part by ehhor or both otthezn. The addrwal !nalwlo,
            Ui
            c::                                                            • P Box 66352, HOUJ!On TCDI, 11266
            r·.J
            N
            ,~                                                            lu~~
                                                                       ~~-,
                                                                           · ' ., ..60786R'oaa~m~. Tws, 770S6
            (\j
            ~:)                                                           o, ~ . F~~ S116et Roii&IDII, ~ 77023
                                                                          d.        ~ouaton, Toxaa, 77005
                  (

                                                             l o.    Any aocl all
                                                                                  . . ·o·co.,mc.
                                                                                    ~~
                                                                                      ~
                                                                                                    ~ Co., Inc. IQOOUIIIB,lnaludlnsiii.Y Qnlclll&.
                                                                                                                                                    0




                      "'~                    Co,, Irto. aubalc!Jarles or Ufillaw,    In~ ~led ro th6 followlns, ali at which 11.1'0
                      ~                      presumod 1o coDIB!n c:Q1111Dlllll1f 1\lnds ~ 'belo~g to ths Bstats:

                      ~                                                   .. 989-03491
                                                                       . b. 989.05600
                      ·"f.'
                                                            11.      Any end all funds' In ODilltal &         c;, BCC~~IUI!¥10 bscluc!Jn& any Gtuntet &


                  C..·                       Co., lil~ llllbaldfllliu or af61iaw, Ill orwhlab 11111 ~d tD CODtsin 001DU111Dil7 fiiDdl and/or
                                                                                                                                                                       r
                                                                                                                                                                       i



                                             (tf) KoDIIath MoAt'eo aad 1anol 'F. MaAtbo jolnlly,        ~tl) which   nAtb
                                             1imds blllonafniJ lo 1MEslato, (i) in tbD namo o!Kcnnolh MaAfoD or laDIItP. MoAtbo, llldlvlduaUyj

                                                                                                                                         of lbom ea. a

                                             llsnatoJ:Yi (lv) which OO!Ilalnet\.lllds In tho care, oustody, conll'Dl, :tb\l1J:~~ ~ bahalf' of
                                             Kcm!Gth MoAfeoand/or 111110tF. MMfeo. lndMdually orJolntlY:IIIlcl         (v)~ an!;e"rela!cd
                                             ~o elthor or them. lw:.b. as a pzevlous rtsldenu, rellltlve, reproaematlve, ~:c
                                                                                                                         · · ~ ·~ ., 1, or
                                             company whlah did buai!IIIIS 011 behalfofellhatXemlollt MoAfco or 1anotP.                   .. .,    wu
                                             Apol4\....,"""7b!U.Wo                        fttll                                                  ~


                                                                                             •                                           ., .i~~A
                                                                                                                                         ~~l
                                                                                                                                                                       i.
                                                                                                                                                                       !




     Confidential in form ation may have been r edacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Har ris County, Texas




A-<41 o
      Ster1ing G. Senechal Ill
                                                                               Deputy
           0:~
           (1)
           0
                         01107/2015   16:42
                                06/DIInU no t12l

                                 0~071201 1
                                                         t~




                                                             e .
                                                               11JUUU1 uw

                                              1o:ss Hltchell ",.·
                                                               '
                                                                   .
                                                                       .

                                                                           .;
                                                                                         otttn

                                                                                 ifteysat LaW
                                                                                ~~~l!.
                                                                                ,~·
                                                                                                                   fAA12!13415'517           P.oosJOII
                                                                                                                                                         P.020/024




           0
           0..
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           ~I"J
           ,_
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           0
           U'1
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           0
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           (\I
           ~   ...                                                         d. 21f~
           (\J
           0

                     c


                                        aprevious rwd=~rel,tive, reprosenmdve,
                                        on balullfofeither KeiiiiCIIh M!:A~e ar J~~~~et'F.               ud!Jig, bucuotllmltecl to lhe 1bllDWhlg:
                                                                                                   ......d~
                                                                                                 }.~~..,.,·

                                                                           a. PO Box 66352, Hotn TClC.DI1 17266
                                                                       b. PO Box 460786 HoUlton, T6lW, 110$6                                                   l·




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas




A44. o
     Starting G. Senechal Ill
                                                                            Deputy
                               16:43                                                                                                                      P.0211024
                        06/08/20U 11110   J12l     P.U 1UZ2U1U Z.aw OUf.c•                                                                          IIJUO/Dll
                    '
                    ~                                                                                                                        P,0101011
                         0810712011    10:59 Hltchell &Duff Attorneys at LaW
            IJl
            CIJ
            ("
             ·'
            ()
            Cl.
                                                                  Wcodfilre.4tNazlaDBI llllllk, Blllk at'America, N.A., BBVA Compw
            li'i
            ,....
                                                                  l!ank, Wells l'qo Bank,          N.A.. Cltizenr Pilumclel Group, Inc.,
            co
            ()
                                                                  l'ertlllns tLC. &lld O:ulllll A co., ~no., aud/or
            li"i
            ,.                                            (U)     Any    lllld all e4dlll011111 fimda aiiCl   U81111   w,b.lch arc JI1UIDI1ell to
            0                                                     llCIIUIIIn OOIDIIUlllltr i\lbds W/t1r timd5 blilvupq io the Bsta1o.
            (\j
            CIJ
            (\)
                                          IT IS TBJr.llUOlUt OBDERED1 ADJUDGED AND DECimED that                                   llllJI.     or

            0                   illdlvldllfll, lnollldlng b111110t Umltod to Tb&OMS OIOIIp, LLc, WoodforestNallol!Al"Bmlk,BIIIk ot
                                Amorlct, N.A,, Jl:BVA ConlpSN BaDk, Wella Fargo JIAIIk, N.A., CltJ!lOIIS P'manolll Group, lila.,




                                Jnj11110Uan Order ilr ~v~ immediately a~~cllhall c=iinu~Jn!oroo ami a!Jl::ot\llltiltho Co\utlftalce

                                aclclmmlnntion afwhatpiOJlort:)' belonga1o the Esrato ortho Caurttellderl &fillll.tld&aljud&ment
                                 I& In the pending wrondul doatl11111lt wollillled wlth thluzullw, which ovar lalatt:r, arb)' :lw1h.e:

                                otdat of tb1l Court. 'Ihls order rhall 'ba DlncliPB !Ill XfOIUictll MoAfc;c, or aey offiCCII'I, Olll,JilCI)'aOI,

                                sgents, .•eryanla, suC~:CSsom, 1111sigll&, J'O,Pmellta!lves, allot118YI aotlDg GD hl5 ~.and on1hDSCI

                                 pelfOIII ill active 'Diloort or pa:tldpatl= wilh Jlim, Tbo bDI!d pomd by the Adlllilllmarrlx Ia

                                J'OCjUh'ed to~ poatcd.

                                                                                 JaiiO




      Confidential information may have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas


Jt;_44_
     Sterling G Senechal Ill
                               _Q                                Deputy
                                                                                                               P.022/024
                  01/07/2015           16:43
                  •       OS/08120n IIBII        PI U   PAX 1UZ2U1U Low Dttice
                                                                                                      I!JOU/GU
                      1
                              I
           0                      0810712011   1o:ss Hltchan& Ouff Attornayut Law                  P.0111011
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           J'\
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           (\J
           (\I

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           0




                          .   -      .. -· --- .. - ----. _..... ~.....             -   ..   ------------




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
 Harris County, Texas




~~~
 ~·. . ,.-4.m.....J-r;~.4L~~·Q~_Deputy
       Stfirling G. Senechal Ill
         Tab 11
Motion to Partially Release
 Temporary Injunction
                                                                                                                                      FILED
                                                                                                                       3/6/2015 4:35:23 PM
                   DV                                                                                                          Sian Stanart
                                                            DATA-ENTRY                                                         County Cieri<
                                                                                                                              Harris Counly
                                                            PlCK UP THIS DATE
                                                                     No.396,935                         PROBATE COURT 1
          [J
          0
          ...           IN THE ESTATE OF                                  §     IN THE PROBATE COURT
          0                                                               §
          0.            JANET FOLTYN MCAFEE,                              §     N0.1
                                                                          §
          ...0          DECEASED                                          §     HARRIS COUNTY, TEXAS
          ~i
                                                    MOTION TO PARTIALLY RELEASE
                                                      TEMPORARY INJUNCTION
          ...U"l
          0
          (IJ           TO THE HONORABLE JUDGE OF SAID COURT:
          01
          0                    NOW COMES Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn
          \')
          0             McAfee (the "Estate"), and requests this Honorable Court to PARTIALLY RELEASE the

                        Temporary Injunction for the ground set forth herein.

                               Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee requests

                        PARTIAL RELEASE of the Temporary Injunction because the Writ of Garnishment has been

                        issued as to the accounts set forth below.

                               Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee requests that

                        the following accounts be released to Dean M. Blumrosen as the attorney for Rosemary Foltyn

                        and Jake Foltyn, and Rosemary Foltyn as Administratrix of the Estate of Janet Foltyn McAfee

                                1.     Account number 55H056008 holding approximately $6,694.39, or all funds

                        remaining in the account after liquidation and account service fees, at GMS Group, LLC; and

                                2.      Account number 55H004628 holding approximately $1,661.15, or all funds

                        remaining in the account after liquidation and account service fees, at GMS Group, LLC.

                                Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn McAfee further

                        requests that all other accounts and assets described in the June 8, 2011 Agreed Order for

                        Temporary Injunction should remain subject to the Temporary Injunction.
                                                                       Page I of3




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas



---t~-
    ~ ~~~fJ~~.VWJ
              o:. . .:. . : .illtJJt
                             ;: :_:~_·Deputy
              Summer Lea Willette
          en                  WHEREFORE, Plaintiff requests this Honorable Court to PARTIALLY RELEASE the
          0
          0            Temporary Injunction, and release. the aforementioned accounts to Dean M. Blumrosen as the
          l'l..
                       attorney for Rosemary Foltyn and Jake Foltyn, and Rosemary Foltyn, as Administratrix of the
          0
          ,....
                       Estate of Janet Foltyn McAfee, and for such other and further relief that may be awarded at law
          I[]
          ,....
                       or in equity.
          Ul
          .....
          0
          r.J                                                      Respectfully submitted,
          en
          0
          (I)



                                                                   ~:~1(;]ll-9
          0


                                                                   MaryEI       b   u
                                                                   Texas Bar No. 06166880
                                                                   210 Main Street
                                                                   FUchmond, Texas 77469
                                                                   Tel. (281) 341-1718
                                                                   Fax. (281) 239-7928
                                                                   Attorney for Rosemary Foltyn, Administratrix




                                                                   Page 2 of3




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas



----"~
     :...___~·rv"---'-~-
                       V/(_
                          ilt&_
                              llt__Deputy
              Summer Lea Willette
          ...0....                                           CERTIFICATE OF SERVICE

          0
                                   I certify that on March   k_, 2015 a true and correct copy of the Motion to Partially
          0.                Release Temporary Injunction was served on all parties.


                                                                        f.L~lj/:2
          0
          ...
                            Esther Anderson
          ...               Anderson Pfeiffer, PC
          0                 845 FM 517 West, Suite 200
          N                 Dickinson, TX 77539
          01                Via Fax: (281) 614-5205
          0
          C"l
          0                 Dean M. Blumrosen, Esq.
                            4615 Southwest Freeway, Suite 850
                            Houston, TX 77027
                            Via Fax: (713) 524-5570




                                                                        Page 3 of3




     Confidential infor mation may have been redacted from t he document in compliance with the Public Information Act.


A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas



--~
  ~~i~J~&lJ~
           V{illtJJi~
              · =<>--                                    Deputy
                     Summer l ea Willette
          ...                                                      No. 396,935
          ...
                          IN'THE ESTATE OF                               §    IN THE PROBATE COURT
          0                                                              §
          ll.             JANET FOLTYN MCAFEE,                           §    N0.1
          0                                                              §
                          DECEASED                                       §    HARRIS COUNTY, TEXAS
          LI'J



          ..
          IJ"l
          0
                                        ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION


          N                     On _ _ _ _ _ _ __, the Court considered the Motion for Partial Release of the
          01
          0              Temporary Injunction filed by Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn
          crl
          0
                         McAfee and the arguments of counsel. After due consideration of the Motion, the Response

                         thereto, and the arguments of counsel, the Court finds the motion is GRANTED and orders the

                         PARTIAL RELEASE of the TEMPORARY INJUNCTION to Dean M. Blumrosen as the

                         attorney for Rosemary Foltyn and Jake Foltyn, as Administratrix of the Estate of Janet Foltyn

                         McAfee as to the accounts referenced below ONLY:

                                 1.       Account number 55H056008 holding approximately $6,694.39, or all funds

                         remaining in the account after liquidation and account service fees, at OMS Group, LLC; and

                                 2.       Account number 55H004628 holding approximately $1,661.15, or all funds

                          remaining in the account after liquidation and account. service fees, at OMS Group, LLC.

                                 IT IS FURTHER ORDERED that the other accounts and assets described in the June 8,

                          2011 Agreed Order for Temporary Injunction should remain subject to the Temporary

                          Injunction.

                                 Signed on: _ _ _ _, 2015.




                                                                       PRESIDING WDGE




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas



------\~
       L...!..!....:..~·~L..:,=._
                          h; \{(~-~-·Deputy
                 Summer Lea Willette
        ---------------------------···

          N
                        Approved as to Form Only By:
          0             MITCHELL & DUFF, LLC
          Cl.
          0
          lll
          ...           !iii/!
                        Attorney for Rosemary Foltyn, Administratrix
                        210 Main Street
          ...           FUchrnond, Texas77469
          0             Tel: (281) 341-1718
          N             Fax: (281) 239-7928
          01            Email: eduff@mitchellandduff.com
          0
          crJ
          0




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas



--~
  ---"'-~"----
          ~V/(_i/JrJJt
                 _ _.Deputy
                Summer Lea Willette
        Tab 12
March 12, 2015 Transcript
                                                                        1



 1              TRIAL COURT CAUSE NUMBER 396,835-401
 2   IN RE: THE ESTATE OF           *     IN   THE PROBATE COURT OF
     JANET FOLTYN McAFEE,           *
 3                                  *
   ROSEMARY FOLTYN and              *
 4 Jake Foltyn                      *     HARRIS COUNTY, T E X AS
                                    *
 5 THE GMS GROUP, LLC and           *
   WOODFOREST NATIONAL BANK,        *
 6 Defendants                       *     COURT    NUMBER   (1)   ONE
 7
 8              MOTION TO PARTIALLY RELEASE FUNDS HEARING
 9

10   Came to be heard on this the 12th day of March, 2015, Motion
11   to Partially Release Funds Hearing, in the above-entitled and
12   numbered cause, and all parties appeared in person and/or being
13   represented by Counsel of Record, before the Honorable Ruth Ann
14   Stiles, Associate Judge Presiding.
15
16                       VOLUME     OF_1_
17

18                       0 R I G I NA L
19
20
21
22
23
24
25
                                                    2


 1            APPEARANCES
 2   ATTORNEY FOR CHARLES STORER:
 3        Robert Teir
          State Bar No. 00797940
 4        845 FM 517, Suite 200
          Dickinson, Texas 77539
 5        Telephone: 831-365-1191
 6   ATTORNEY FOR PLAINTIFFS, ROSEMARY FOLTYN AND
     JAKE FOLTYN:
 7
          Dean Blumrosen
 8        State Bar No. 02517900
          4615 Southwest Freeway, Suite 850
 9        Houston, Texas 77027
          Telephone: 713-524-2225
10
     ATTORNEY FOR THE ESTATE OF
11   ROSEMARY F. McAFEE, DECEASED:
12        Mary Elizabeth Duff
          State Bar No. 06166880
13        210 Main St.
          Richmond, Texas 77469
14        Telephone: 281-341-1718
15
16
17
18
19
20
21
22
23
24
25
                                                                           3


 1                    THE COURT:    The McAfee Estate.
 2                    MR. TEIR:    Good afternoon.   I should start by
 3 explaining that I am not Esther Anderson.
 4                    THE COURT:    I am aware of that.    So you are --
 5   could you say your name?
 6                    MR. TEIR:    Robert Teir, T-E-I-R.
 7                    THE COURT:    T-E-I-R?
 8                    MR. TEIR:    All right.   So, is there opposition
 9   to the Motion to Partially Release?
10                    MS. DUFF:    We have actually two motions.    They
11   have one which includes the Wood Forest Bank account plus two
12   other GMS accounts.    We have a motion to partially release
13   which only includes the GMS account.       There is some dispute on
14   the Wood Forest account.      I have talked to Ms. Anderson about
15   it.   There are two -- we agree that it was for the most part
16   SSI deposits into the account which the Estate would have no
17   claim against.    However, there are two fairly large deposits
18   that no one has given me backup that happened prior to the date
19   of death that I'm trying to find out what the backup is on
20   those and whether or not those were community so that they
21   could be taken out of what was being distributed out of the
22   Wood Forest account.    We are asking that our Motion to
23   Partially Release be signed, which just includes the two GMS
24   accounts.
25                    THE COURT:   So our only point of contention is
                                                                              4


 1   the Wood Forest account?
 2                     MS. DUFF:     Yes, Your Honor.
 3                     THE COURT:     Okay.    So would you like to proceed
 4   on your motion?
 5                     MS. DUFF:     I don't think they filed an
 6   appearance into the probate, which this is under the probate
 7   cause number.     And which cause number are they filing
 8   appearance under?
 9                     UNIDENTIFIED PERSON:      401, Wrongful death.
10                     MS. DUFF:     The wrongful death matter.     So that's
11   just the trial.     Storer as the Power of Attorney, I don't know
12   that he would necessarily have standing in the probate matter
13   at this point in time.
14                     THE COURT:     Well, in regard to the Injunction,
15   clearly, Mr. McAfee is the person --
16                     MS. DUFF:     But it's Mr. Storer as the Power of
17   Attorney.     That's who they represent.
18                     THE COURT:     Right.   Which is representing -- who
19   represents Mr. McAfee?        Is that a point of contention?
20                     MS. DUFF:    That's a little bit of a point of
21   contention.     It has been over these two cases.      They have
22   entered an appearance in the wrongful death case but no one has
23   entered an appearance, unless they consider this their entering
24   of an appearance, in the probate estate itself.         Mr. McAfee has
25   entered one but Mr. Storer as his Power of Attorney hadn't.
                                                                         5


 1                   THE COURT:     Okay, so are you contesting that Mr.
 2   Store has Mr. McAfee's Power of Attorney?
 3                   MS. DUFF:     I'm just contesting his standing to
 4   make an appearance today.      I believe Mr. Blumrosen has also
 5   contested that in the wrongful death case as well.
 6                   MR. BLUMROSEN:     The wrongful death issues were
 7   basically I believe that Ms. Anderson indicates that she is
 8   only representing Mr. Storer, she is not entering an appearance
 9   on behalf of Mr. McAfee.      But the issues in this, Your Honor,
10   are quite simple.     Everybody agrees that the two accounts, the
11   GMS accounts are subject to garnishment, that they have been
12   garnished, and all we are waiting on now is the Court to
13   release the Injunction.      And it would appear to me that the
14   only person that may have authority to do that would be someone
15   who has been involved in representing the Estate which is Ms.
16   Duff.   The other language that is contained in Ms. Duff's Order
17   is language that I have spoken to the GMS attorney, that he
18   said that the only way they would ever release the funds in the
19   GMS accounts is if that language was contained in the Order.        I
20   sent that to opposing counsel and indicated as such, and again,
21   even though they don't even contest the fact that those
22   accounts are subject to garnishment, that language is not
23   contained in there.    So if the Court signs their motion, the
24   GMS counsel, Mr. Lipman has indicated to me he can't release
25   the funds because, since the market fluctuates, that has a
                                                                         6


 1   specific dollar amount in it as of whatever the date that we
 2   last were provided information on those accounts.      The language
 3   that's proposed in Ms. Duff's Order indicates that amount plus
 4 whatever amount is left in the account after liquidation and
 5   fees.   And for whatever reason, Mr. Lipman, as attorney for
 6   GMS, indicated he must have that language in the Order or he
 7 would not be able to release the funds.
 8                     MS. DUFF:   So my motion is specific to the GMS
 9   accounts.
10                     MR. BLUMROSEN:   And as I see it, Your Honor, the
11   only contention here is that they are claiming that the Wood
12   Forest account should also be released.     All Ms. Duff is saying
13   is she has asked for, and I believe it's been documented, she
14   has asked for backup.     We agree if it's Social Security
15   benefits, I have already pulled the garnishment.     We are not
16   entitled to garnish that because it had Social Security
17   benefits in it.    However, the Estate may or it may not have
18   claims to it, depending on the character of those assets, and
19   all we are simply asking is on behalf of the Estate, since this
20   case has been going for five years anyway, that the Estate be
21   entitled to look at the character and the backup so that Mr.
22   McAfee, who is now a convicted murderer and doesn't get the
23   benefit of money that he shouldn't get, and it seems pretty
24   easy if they would provide us the backup if it was there, and
25   then we would have no problem and release the Wood Forest
                                                                       7


 1   account to them.   That's hasn't been done.       And as I
 2   understand, all she has asked for is some backup, and if they
 3   provide it and show that it is Social Security benefits, then
 4   according to Ms. Duff, the Estate will walk away from their
 5   claims of it because they won't have any.     That's really the
 6   only issue of this hearing.
 7                   MR. TEIR:    I don't want to interrupt the dueling
 8   monologue.   Continue.
 9                   MR. BLUMROSEN:    I'm finished.
10                   MR. TEIR:    Because it seems like they are
11   arguing against what they perceive our position is but didn't
12   want to hear it.
13                   THE COURT:    Right.
14                   MR. TEIR:    Your Honor, the issue of the Wood
15   Forest account is res judicata, respectfully, in this Court.
16   This Honorable Court ordered and held that the account is
17   completely one hundred percent exempt from garnishment in its
18   January 27th, 2015 Order.     The Court did so because of its
19   inherent finding that every dime in the account is exempt from
20   the reach of the Plaintiffs and is Mr. McAfee's Social Security
21   income.   That issue is decided and we say what's good for the
22   goose is good for the gander if we are going to tinker with the
23   Temporary Injunction that was agreed for the sole purpose of
24   counsel getting paid a fee of eight thousand, that's all that's
25   going on here, then allowing Mr. McAfee access to what all
                                                                             8


 1   agreed is his money so he can have an occasional stamp and
 2   piece of paper and Amazon book while in prison seems very fair
 3   and is the only result, respectfully, consistent with the Order
 4   quashing the Writ of Garnishment.      The Order held that the
 5   Plaintiffs can't get at that account.      Therefore, the only
 6   party that can is the Defendant, Mr. McAfee.      And right now he
 7   can only access it through my client, Mr. Store.      So we ask
 8   respectfully to allow the learned opposing counsel to be paid
 9   their approximately eight thousand dollars they have been
10   waiting for from this other account, which we have no objection
11   to.   They are correct.     But also to release the injunction to
12   the funds that this Court has ruled belongs to Mr. McAfee, and
13   to do both.
14                   THE COURT:     Okay.
15                   MR. TEIR:     Nothing further, Your Honor.
16                   MS. DUFF:    The only thing, Your Honor, the Wood
17   Forest account was held to be exempt from garnishment.       The
18   Estate has a TRO covering all the assets and that's what we are
19   here today on, a completely separate claim.      I discovered that
20   there is about $35,000 that was deposited, $25,162 was
21   deposited on April 23rd, 2010, and $9,735 was deposited on May
22   4th of 2010.   Both prior to death.    Those are different than
23   the normal SSI deposits that were coming into the account.         My
24   question is, where did those two deposits come from in the
25   amount of $35,000 and was it community property?      That's my
                                                                              9



 1   only question.     If we can show that it was not community
 2   property, that it was separate property for whatever reason,
 3   then I understand the rest of that account is SSI, and is not
 4   subject to the TRO or to the garnishment.          We don't like
 5   letting it go but we understand that it has to be let go
 6   because of federal law.        So my question is on those two
 7   deposits.
 8                     MR. TEIR:     I respectfully feel a little bit
 9   about hearing by ambush.        Ms. Anderson, my colleague, filed our
10   motion.     There was no opposition although there was a
11   counter-motion but no pleading offered any objection to our
12   motion for any reason.        I simply respectfully am not in a
13   position to discuss the transaction from five years ago because
14   there was no clue that that would be brought up.          It is my
15   understanding that similar questions were raised by counsel in
16   the wrongful death charge and an explanation was provided
17   through direct communications that we authorized with Charles
18   Storer.
19                     MR. BLUMROSEN:       May I respond?
20                     THE COURT:    Yes.
21                     MR. BLUMROSEN:       Your Honor, at the hearing on
22   the garnishment, and I did object to their motion and their
23   Order based on the language of it, I would agree with counsel
24   that it has been the decided that that account is not subject
25   to garnishment.    That much I agree with.        But I think they are
                                                                         10


 1 wanting you to take the Order a little bit further and say not
 2   only is it not entitled to garnishment but the Estate has no
 3   claims to it.    I don't represent the Estate.    Ms. Duff does.
 4   Ms. Duff has -- we have e-mailed each other several times over
 5   the last week that she has been asking counsel for information
 6   about these deposits and that's the whole reason that she is
 7   inquiring about that on behalf of the Estate.      So again, I get
 8   back to, this case has been going on for five years, the
 9   garnishment is not in dispute about the two GMS accounts.      The
10   only thing that's in dispute is the amount that Ms. Duff is
11   indicating to the Court she has questions about which have not
12   been provided to anybody about where that money came from.
13                    MS. DUFF:    I have asked about the deposits into
14   the account for backup on them and I received the printout of
15   the account.    The account still doesn't have the backup on
16   those two dollar figures.      Ms. Anderson may have thought that
17   this would have answered my questions but we have been calling
18   for this week also to just try to get an answer as to what
19   those two deposits are.      Once we are clarified as to those two
20   deposits, we understand that the TRO will be released as to the
21   Wood Forest Bank.
22                    MR. TEIR:    In the alternative, if this Court is
23   inclined to allow this Cinderella hour opposition to our
24   motion, which again, I'm not prepared because, although our
25   motion was filed a week ago, this is the first I'm hearing it.
                                                                         11


 1   But if there is a problem with twenty-five thousand, then we
 2   submit the Injunction should still be released to the balance
 3 of the account and any Temporary Injunction that we don't think
 4   should carry over at all, but if it does, it should be limited
 5   to the amount of that deposit.
 6                   THE COURT:    Thirty-five thousand, I believe.
 7                   MS. DUFF:    Thirty-five thousand, Your Honor.
 8                   MR. TEIR:    I stand corrected.   I didn't mean to
 9   misrepresent.   Close enough.    Public school, Your Honor.
10                   THE COURT:    Math.   That would be my problem.     So
11   really, is there any desire for you all to communicate for the
12   next week to try to clarify that $35,000 or there is no desire
13   to do that right now?
14                   MR. TEIR:    We would be happy to discuss it and
15   provide any information that we know but we don't know very
16   much, Your Honor.   The transaction was five years ago.       Mr.
17   Store had nothing to do with it and therefore we don't have
18   anything but what Ms. Duff has, the bank records.      As far as
19   the source of that -- those funds, we believe that those funds
20   are gone.   They were subsequently withdrawn closer to the time
21   of the deposit, and the only thing in the account, as we
22   showed, to get our -- the writ quashed was Social Security
23   deposits.   Today every dime in that account is directly
24   attributable to a direct deposit from the United States Social
25   Security Administration.     That money was gone long ago.
                                                                       12


 1                  MS. DUFF:    There were withdrawals out of the
 2   account, Your Honor.   I do concur with that.   But was it that
 3 money that was taken out or prior money.      Is it first in first
 4 out on money?    That's where our concern is coming from.
 5                  THE COURT:    Lifo fifo.
 6                  MR. TEIR:    The Courts have dealt with that and
 7 there is no appellate decision, and this is nationwide, because
 8 we are dealing with a federal statute, that has allowed access
 9   to funds and ruled them to be subject to garnishment or any
10   other collateral attack because of commingling from a deposit
11   over three years back, at least I couldn't find any, and I
12   believe I read them all.
13                  MS. DUFF:    Well, Your Honor, this was
14   immediately prior to her death and the funds were taken out
15   immediately after her death, which was that's where we are
16   saying, is it a community property interest because the funds
17   went in prior and came out almost immediately after.     We don't
18   know what the exact funds are that came out.
19                  MR. TEIR:    What may help is, regardless of which
20   accounting methodology is applied, lifo or fifo, after the
21   withdrawals are made, there is a series of deposits made from
22   only one source, the Social Security Administration.     The funds
23   that are on account now wouldn't be there but for the Social
24   Security Administration direct deposits.    Not a dollar.   So
25   regardless of accounting methodology, whether it's lifo or
                                                                        13


 1   fifo, the deposits from five years are gone.     It's almost as if
 2   Mr. McAfee opened a new account at that point, because zero
 3 went out from after the withdrawals and the only money that
 4   came in was from the Social Security Administration.      That's
 5 why we believe the Injunction should be lifted as to the
 6   account as a whole.
 7                    MR. BLUMROSEN:   Your Honor, most Defendants who
 8   are post-judgment debtors have to respond to post judgment
 9   discovery and provide documentation as to where all their
10   assets are which would include what happened to this money.        In
11   this matter, that hasn't happened because he is in jail and
12   really doesn't have any care in the world about what the Court
13   could do to him.    He has a ninety-nine year sentence.   The
14   Court could hold him in contempt but it's really of no effect
15   to Mr. McAfee.
16                    So what they have done is they represent Mr.
17   Store, the Power of Attorney, who they have said clearly, we
18   don't represent Mr. McAfee and we will see what we can do about
19   getting you stuff to help you, which they did finally answer
20   the post-judgment discovery, but there is just no documents.
21   They don't have any filing a Motion to Compel which we have
22   already done and have ordered is of no effect to Mr. McAfee.
23   So I do think when the Court is looking at its discretion in
24   how to handle this matter, we would appreciate airing on the
25   side of the victims of his brutal murder instead of saying,
                                                                           14


 1 well, we don't have any documents and we can't find out where
 2 this money came from so let's let Mr. McAfee have it.          And what
 3 we would ask that if they refuse to and will not provide any
 4   benefit or any document supporting these transfers, that the
 5 Court use its power when the Estate comes in and says we
 6   believe this is community property, we believe the Court would
 7   have the inherent authority to look at it and decide that based
 8   on the fact of their refusal to produce any documents.
 9                   MR. TEIR:     That argument was considered and
10   completely rejected because it simply has no basis in the
11   unanimous consensus of federal and state courts that admit that
12   even for a defendant who is -- could be described as evil, the
13   Social Security Administration Act from the Roosevelt
14   administration in 1933 has no exceptions.       The writ has been
15   quashed.   They have to let it go.       I understand the resistance
16   but their remedy is to seek a repeal of the Social Security
17   Act.   They should go to their congressman.       It says you can't
18   get at it for any reason.      There have been fraudsters, there
19   have been murderers, there have been kidnappers, and people
20   have litigated the claim that they are a bad person.        The
21   purpose of the Social Security Act is to protect widows and
22   children and retirees.      This person is in jail.    Doesn't need
23   Social Security.     The Courts have unanimously without one
24   exception said that doesn't matter, Congress gave us an
25   absolute language.     It's protected.    End of story.   I can't
                                                                       15


 1 defend what Mr. McAfee did to his late wife, of course, but he
 2   has equal rights under the law and the Social Security Act has
 3   no exceptions, including for their clients.
 4                  MS. DUFF:    Your Honor, I'm not contesting that
 5   this money may not be subject to the garnishment, my question
 6   is, $35,000 that was in there on her date of death, which we
 7   contend to have been community property at that point in time,
 8   at least 50 percent.    Unless they prove that it was not
 9   community property, at least 50 percent of that $35,000,
10   $17,000, I believe, if my math is correct, would have been her
11   community property.    That's what we are contesting at this
12   point, not that she is entitled to any of the Social Security
13   benefits but the community property interest in that money.
14                  THE COURT:    So as to his position that all of
15   the money that's currently in the account is directly
16   attributable to Social Security?
17                  MS. DUFF:    I don't see that, Your Honor, because
18   there have been withdrawals, deposits, withdrawals, well, just
19   those two deposits, I will give them that, but there are
20   numerous other withdrawals after the date of death, so I don't
21   know if he is taking out Social Security money, taking out
22   what money was taken out?   My argument is at that snapshot in
23   time on May 10th of 2010, that $35,000 was still sitting in the
24   bank account and that was community property.
25                  THE COURT:    Which gives you a claim against that
                                                                       16


 1   community property.
 2                  MS. DUFF:    Yes, Your Honor.
 3                  THE COURT:    But if all the money that's
 4 currently in the account is directly attributable to Social
 5   Security, money that he might have previously taken wrongfully
 6   that was community property, is that -- I guess your position
 7 would be that because that money was removed before and there
 8   is a claim that --
 9                  MS. DUFF:    That at least fifty percent -- at
10   least her community property interest should have been
11   considered to remain in the bank account.
12                  THE COURT:    Even though the money that's
13   currently there is -- unless you use a
14                  MS. DUFF:    Some portion of it is.
15                  THE COURT:    Okay.
16                  MR. TEIR:    In summary, Your Honor, I think it's
17   been well hashed by learned counsel and myself, after the
18   withdrawals again, it doesn't --     no one has to take my word
19   for it, they can just add up the deposits, they will see that
20   that's the money that's in there and no one is questioning
21   where one penny, one dime of that money has come from.      But if
22   the Court rejects our claim, that the Injunction should be
23   released, there is no reason to deny Mr. McAfee access to most
24   of it because, by counsel's own admission, at most, the
25   community property claim is equal to one-half the approximately
                                                                        17


 1 thirty-five thousand, and the rest, I don't hear anyone saying
 2   rests with any other soul on this planet but Charles McAfee,
 3   and he should have access to it for the very limited purposes
 4   that he is permitted under Texas law to use it such as a
 5   commissary account.
 6                   MS. DUFF:    Your Honor, I wish I could argue
 7 against him on that but I do agree that anything in there that
 8   is SSI is his, I'm arguing about that portion that I consider
 9   to be.   I wish I could argue different but, unfortunately,
10   federal law decided that murderers have access to their money.
11                   THE COURT:    Okay, I'm going to look at this and
12   discuss it with Judge Wright.
13                   MR. BLUMROSEN:    Judge, the only thing I wanted
14   to add, I know I made the point, but if you decide to go with
15   their Order, the one that they proposed
16                  THE COURT:     I have to use your language or else
17   the money won't come out.
18                   MR. BLUMROSEN:    Yes, ma'am.
19                   MS. DUFF:    Yes, we need the money to come out of
20   those two accounts.
21                  THE COURT:     Got it.
22                  MR. TEIR:     We are certainly amenable to that,
23   Your Honor.
24                  THE COURT:     Okay.
25                  MR. TEIR:     May we be excused, Your Honor?
                             18


 1   THE COURT:   You may.

 2
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 6

 7

 8
 9

10
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                                                                     19


 1                       C E RT I F I CAT E
 2 COUNTY      OF   HARRIS   *
   STATE      OF     TEXAS   *
 3
         I, Donald G. Pylant, Official Court Reporter in and for
 4 Probate Court No. 1 of Harris County, State of Texas, do hereby
   certify that the above and foregoing contains a true and
 5 correct transcription of all portions of evidence and other
   proceedings requested in writing by counsel for the parties to
 6 be included in this volume of the Reporter's Record, in the
   above-styled and numbered cause, all of which occurred in open
 7 court or in chambers and were reported by me.
                    I further certify that this Reporter's Record
 8 truly and correctly reflects the exhibits, if any, admitted,
   tendered in an offer of proof or offered into evidence by the
 9 respective parties.
                    I further certify that the total cost for the
10 preparation of this Reporter's Record is $133.00 and will be
   paid by Esther Anderson
11
           Given under my hand and seal of office this the   5th   day
12   of   August , 2015.
13
14
                                    Is/Donald G. Pylant
15                                  Donald G. Pylant, C.S.R.
                                    Official Court Reporter
16                                  in and for the County of
                                    Harris and the State of
17                                        T E X A S.

18   Certification No. 668   Exp. Date: 12-31-2016
     Probate Court No. One 201 Caroline Street, 6th fl.
19   Houston, Texas 77002 (713} 368-6692
20
21
22
23
24

25
        Tab 13
Order Partially Releasing
 Temporary Injunction
                                    DATA EN'I'RY       ------                             PROBATE COURT 1
                                    PICK UP TIIIS DATB
                                                                 No. 396,935

                        IN"THE ESTATE OF                              §     IN THE PROBATE COURT
                                                                      §
                        JANET FOLTYN MCAFEE,                          §     N0.1
          0                                                           §
          ~             DECEASED                                      §     HARRIS COUNTY, TEXAS
          0
          ...
          ill
                                    ORDER PARTIALLY RELEASING TEMPORARY INJUNCfiON
          ...
                                    fV\.o;.,c.h. I~~?Court considered the Motion for Partial Release of the
          0
          (',!                 On
          co
          r            Temporary Injunction filed by Rosemary Foltyn, as Administratrix of the Estate of Janet Foltyn
          (")
          0
                       McAfee and the arguments of counsel. After due consideration of the Motion, the Response

                       thereto, and the arguments of counsel, the Court finds the motion is GRANTED and orders the

                       PARTIAL RELEASE of the TEMPORARY INJUNCTION to Dean M.                        Blumros~n    as the

                       attorney for Rosemary Foltyn and Jake Foltyn, as Administratrix of the Estate of Janet Foltyn

                       McAfee as to the accounts referenced below ONLY:

                               I.     Account number 55H056008 holding approximately $6,694.39, or all funds

                       remaining in the account after liquidation and account service fees, at OMS Group, LLC; and

                               2.     Account number 55H004628 holding approximately $1,661.15, or all funds

                        remaining in the account after liquidation and account service fees, at OMS Group, LLC.

                               IT IS FURTHER ORDERED that the other accounts and assets described in the June 8,

                        2011 Agreed Order for Temporary Injunction should remain subject to the Temporary




     Confidential information may have b een redacted from the document in complia nce with the Public Information Act.


A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas



---=-
  ~  ----=-='--I,C--1-
                 ·l~-=---\ti(-
                             ~--=----·Deputy
              Summer Lea Willette
             I




                           Approved as to Form Only By:
             ,..
             {)
             (l.           MITCHELL & DUFF, LLC



                           li-Jll/-
                           Attorney for Rosemary Foltyn, Administratrix
                           210 Main Street
                           Richmond, Texas 77469
                           Tel: (281) 341-1718
                           Fax: (281) 239-7928
                           Email: eduff@mitchellandduff.com




      Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas




--~-H--f'tiM~ltF.:!CZ;r-fhi~'Hii8a,H-l'\({Att-l:£!5ff'- - -Deputy
                 Summer Lea Willette
           Tab 14
  First Amended Motion for
 Reconsideration of March 16,
2015, Order Partially Releasing
  Temporary Injunction, First
 Amended Motion for Entry of
Order Releasing Social Security
   Proceeds from Injunction
             And
     Motion for Sanctions
                                       -   .   -   ·-    - - · - - - - ---- -·-··---·                ··· ··


                                                                                                                                                   FILED
          ANM                                                                            PROBATE COURT 1                             4/30/2015 1:55:07 PM
                          DATA-ENTRY                                                                                                         Sian Slanart
                          PICK UP THIS DATE                                                                                                 County Cieri<
                                                                                                                                            Hams County




                                                              CAUSE NO. 396,935

                     IN THE ESTATE OF                                  §                 IN THE PROBATE COURT
                                                                       §
                     JANET F. McAFEE,                                  §                 NUMBER 1 OF
                                                                       §
                     DECEASED                                          §                HARRIS COUNTY, TEXAS
                     ••.•.•••.•..••....••..•...•..•..........•....•..........••..••.......•....•....
                                                           CAUSE NO. 396935-401

                     INRE                                              §         IN THE PROBATE COURT
                     JANET F. McAFEE,                                  §
          0          Deceased                                          §         NUMBER ONE
          11'1                                                         §
          ()         ROSEMARY FOLYN and                                §
                     JAKE FOLYN                                        §
                                                                       §
                     v.                                                §         OF
                                                                       §
                     THE GMS GROUP, LLC and                            §
                     WOODFOREST NATIONAL BANK,                         §         HARRIS COUNTY, TEXAS
                     Defendants                                        §
                     FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 16,2015, ORDER
                                 PARTIALLY RELEASING TEMPORARY INJUNCTION,
                         FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAL
                                    SECURITY PROCEEDS FROM INJUNCTION
                                                    AND
                                           MOTION FOR SANCTIONS

                     TO THE HONORABLE JUDGE OF SAID COURT:

                            Comes now Charles Storer, Agent under a Power of Attorney from Kenneth

                     McAfee (see Exhibit "1"}, who moves the Court to:

                            a. reconsider its March 16, 2015 Order Partially Releasing Temporary Injunction

                                (see Exhibit "2") that does not include language permitting Kenneth McAfee

                                access to funds the Court previously held to be his social security proceeds

                                 on deposit at Woodforest National Bank (see Exhibit "3," Order Partially

                                 Granting Motion to Quash Writs,           ~5.   And,

                           FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 18, 2015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION,
                                   FIRST AMEN DEC MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION
                                                                     AND MOTION FOR SANCTIONS
                                                                          Page1




     Confidential information may have been r edacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, T exas



                                                          Deputy
                           b. to enter an Order Releasing Social Security Proceeds from any injunction that

                                may be in force.

                            In support of this Motion for Reconsideration, all Exhibits are attached and

                     incorporated herein by reference as if set out in full. Charles Storer, Power of Attorney

          ul         for Kenneth McAfee, hereinafter, "Storer" shows the following:

          0                                             A. PROCEDURAL HISTORY
          N
                     1.     The Estate of Janet McAfee was awarded a judgment against Kenneth McAfee in

                            a wrongful death action under the jurisdiction of this Court. Although assets have

                            been available to satisfy such judgment and although such assets have been

                            repeatedly offered to the Estate, the Estate representative and her counsel,

                            Elizabeth Duff, have refused to take any steps toward accepting the assets and

                            crediting     them      against      the    judgment.           Instead,     they     have     made

                            misrepresentations to the Court in a effort to not let go of their only tie to

                            McAffee.

                     2.     Ignoring the fact that the account Kenneth McAfee (hereinafter "McAfee") held

                            with his employer, GMS, was a retirement account, the judgment creditor

                            (hereinafter "Plaintiffs") sought, and received, a writ of garnishment against the

                            GMS retirement account, along with two other accounts at GMS. Plaintiffs also

                            sought a separate writ of garnishment for funds held on deposit at Woodforest

                            National Bank (Woodforest"), which was also issued and is the subject of this

                            Motion.

                     3.     To protect the GMS account, which held only retirement benefits exempt from

                            creditors under the Texas Property Code, and to protect the Woodforest account,

                           FIRST AMENDED ManON FOR RECONSIDERATION OF MARCH 15, 2D1~. ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION,
                                   FIRST AMENDED MOllOH FOR ENTRY OF ORDER REI.£ASIHG SOCIAL SECURITY PROCEEDS FROM INJUNCTION
                                                                    AND MOTION FOR SANCllONS
                                                                         Pago 2




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
           .,
           ~-
           ~.j                         which held only social security proceeds exempt from creditors under the federal
           0
           Ci                          Social Security Act, Storer moved to quash Plaintiffs' writs only to the extent they
           Cl..

           ui                         .reached these two accounts.                  See Exhibit "4," Motion to Quash Writs of
           (\J
           u"l                         Garnishment, which is attached hereto without Exhibits, which Exhibits are a part

           •n                          of this Court's file and are incorporated herein by reference as if set out in full.
           ".
            c;                4.       Storer's Motion to Quash Writs set forth the source of funds in both accounts,
            \'·J
            ........                   demonstrating their exempt nature and providing the points and authorities to
            ltl
            ()                         explain how each were, without exception, exempt from the reach of judgment

                                       creditors by operation of federal law. 1

                              5.       The legal authorities and conclusion in Storer's Motion to Quash Writs were

                                       never questioned or objected ·to by Plaintiffs. Indeed, there is no countervailing

                                       authority to be found to the arguments raised in Storer's Motion to Quash Writs.

                                       See In re Franklin, 506 B.R. 765, 769 (Bankr., C.D. Ill. 2014) ("These

                                       proscriptions have been part of the Social Security Act since 1935"). As such,

                                       the Court granted Storer's Motion and entered an Order Partially Granting Motion

                                       to Quash Writs of Garnishment, which quashed both writs only to the extent they

                                       reached the GMS account containing retirement benefits and the Woodforest

                                       account containing social security proceeds. See Exhibit "3." 2                      The "injunction"

                                       over each account, however, remained to be addressed.


                              1 See  42 U.S.C. §407; see also Bennett v. Arl<ansas, 485 U.S. 395, 397, 108 S.Ct. 1204, 1205, 909
                              L.Ed2d 455 (19BB) (42 U.S.C. §407(a) •unambiguously rules out any attempt to attach Social Security
                              benefits•).
                              2
                                The Court's ruling per the January 27, 2015 Order Partially Granting Motion to Quash Writs of
                              Garnishment did not reach two other GMS accounts that did not contain exempt funds, which Storer
                              never sought to protect from garnishment. See Exhibit •3.' To the best of the undersigned's knowledge,
                              such other accounts have been collected by Plaintiffs.

                                      FIRST 1\MEHDED MOTION FOR RECONSIDERATION OF MAACH 18,2015, ORDER PI\RTII\LLY RELEASING TEMPORARY INJUNCTION,
                                               FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCII\L6ECURrrY PROCEEDS FROM INJUNCTION
                                                                                1\NO MOTION FOR SANCTIONS
                                                                                      Page 3




     Confidential information may have been redacted from the document in compliance with the P ublic Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Ha rris County, Texas



A.-Jd
   St,:;.rilng         G.   Senechal
                                    _a II!
                                                                     Deputy
          ..
          N
           ('
           0
                     6.    Thereafter, Storer sought a release from the "injunction" of (i) the non-exempt

           CL              accounts Plaintiffs and/or the Estate wanted, and (ii) the exempt GMS and

           Ul              Woodforest accounts. See Exhibit "5," Motion to Partially Release Temporary
           N
           iii
                           Injunction, without Exhibits, which Exhibits are a part of this Court's file and are

           ..U"l
           ()
                           Incorporated herein by reference as if set out in full. On March 12, 2015, the

                           Court heard for the first time, arguments against releasing McAfee's federally and
           (·~
           ""
           (~              state protected retirement benefits and social security proceeds, yet such
           ill
           0               arguments had already been determined by the Court on January 27, 2015,

                           when the Court found that there existed no question but that all deposits into the

                           Woodforest account since 2010 were direct deposits from the United States

                           Social Security Administration, and that such deposits represented the entirety of

                           the Woodforest account. See Exhibit "3." At neither hearing did Plaintiffs offer

                           any evidence to show that the funds on deposit at Woodforest were anything but

                           what Storer has always said they are, social security proceeds. Nonetheless, on

                           March 16, 2015 the Court entered the Order submitted by the Plaintiffs and/or the

                           Estate, which included language releasing only the non-exempt accounts

                           Plaintiffs and/or the Estate wanted, and not releasing the social security account

                           solely owned by McAfee. See Exhibit "2."

                     7.    There is no action or pleading pending before this Court questioning the Court's

                           January 27, 2015 Order Partially Granting Motion to Quash Writs of Garnishment

                           that the Woodforest account is, in its entirety, social security proceeds. Similarly,

                           there is no objection to Storer's Motion to Partially Release Temporary Injunction

                           such assets from the scope of any continuing injunction.

                          FIRST ~aiDED MOTION FOR RECONSIDEMTlON OF W.RCH 15.2016, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION,
                                  FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCnON
                                                                   AND MOTION FOR SANcnONS
                                                                       Page~




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



                                                       Deputy
           C·~
           \'·l                                                         B. ARGUMENT
           0
           c>
           t.i.              I.         THE FUNDS IN THE WOODFOREST ACCOUNT ARE MCAFEE'S AND
                                                 ARE BEYOND THE JURISDICTION OF THIS COURT
           u.''I
           ('~       8.            Storer requests the Court reconsider its decision, if a deliberate decision was
           til
           ~·                      made, to not enter the order he submitted freeing both the GMS accounts subject
           ii1                     to garnishment for the Estate/Plaintiffs and the Woodforest social security
           (.>                     account of McAfee, not subject to garnishment, because the nature and the
           C•J
                                   ownership of the funds on deposit in the Woodforest social security account were
           I"'
            ·'
           If!                     determined with finality via the Court's January 27, 2015 Order Partially Granting
           0
                                   Motion to Quash Writs of Garnishment, (Exhibit "3") and as such, the subject of

                                   such Order is now res judicata and the law of the case. Specifically, this Court

                                   lacks subject matter jurisdiction over the Woodforest social security account.

                                   Therefore, the Court must release its "injunction" pertaining to such account.

                       10.         Because the nature and source of the funds on account in the Woodforest social
                                   security account is the law of this case, and because the Estate does not and
                                   cannot have any claim in or against any of such social security proceeds, there Is
                                   no legal basis to continue the "injunction· as same pertains to the Woodforest

                                   social security account.

                       11.         Additionally, because the Woodforest social security account is not an asset of

                                   the Decedent's Estate, the Court does not have jurisdiction over such account.

                                   See Smith v. Lanier, 998 S.W.2d 324, 335 (Tex. App.-Austin 1999, pet. denied)

                                   (because assets "arguably were" husband's separate property, Probate Court

                                   administering late wife's estate "did not have subject-matter jurisdiction over the
                                   disputed property"); see also State v. Traylor, 374 S.W.2d 203, 207 (Tex.1963)

                                   (Smith, J., concurring) (Probate Court lacks jurisdiction over separate property of

                                   widow or widower).


                                  FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 1e, 2015, ORDER PARTIALLY RELEASIND TEMPORARY INJUNCTION,
                                          FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION
                                                                           AND MOTION FOR SANCTIONS
                                                                                Pogo 5




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



A44_ Sterling G Siriidlallll
                                      Q                         Deputy
                             II.     IT IS RES JUDICATA TO NOW ARUGUE THAT THE FUNDS IN
                                   WOODFOREST ARE ANYTHING BUT SOCIAL SECURITY PROCEEDS

                     12.   The Court entered an Order Partially Granting [St«;>rer's) Motion to Quash Writs

                           on January 27, 2015, as to the Woodforest social security account. See Exhibit
           .•
           ,
                           "3."     Storer's Motion to Quash Writs was based on one argument and one

                            proposition of law-that the funds in the Woodforest account are federal social

                           security benefits. See Exhibit "4," 'fl's 8-21.
           C:
           lfl       13.    While an opposition to the Motion to Quash Writs was filed, Plaintiffs' and the
           0
                            Estate's counsel did not, and could not, question, refute, or distinguish the

                            unanimous and clear precedent that social security proceeds are beyond the

                            reach of creditors.            Therefore, the writ of garnishment with regard to the

                            Woodforest social security account was quashed in its entirety. See Exhibit "3."

                            Because only one argument was made for quashing such writ, and because the

                            Court quashed such writ, it is res judicata to now argue anything but that the

                            funds in the Woodforest account are exempt because they are protected from

                            creditors under the Social Security Act, which protection attaches to the account

                            because the funds in it are only social security proceeds.

                     14.    Res judicata prevents anyone from acting or asserting a position contrary to the

                            holding and implicit finding of this Court in the January 27, 2015 on the Order

                            Partially Granting Motion               to   Quash Writs.             See Caprock /nv. Corp. v.

                            Montgomery, 321 S.W.3d 91, 101 (Tex. App.- Eastland 2010) (stating that once

                            a ruling is made, It Is final, and contrary arguments are prohibited).




                           FIRST fo.loiENDEO loiOTION FOR RECONSIDEAATION OF MARCH 18, 2015, ORDER PARTI.IollY RELEASING TEMPOAARY INJUNCTION,
                                     FIRST MIENDED loiOTION FOR ENTRY OF ORDER RELEfo.SING SDCI.Iol SECURITY PROCEEDS FROM INJUNCTION
                                                          .              AND MOTION FOR SANCTIONS
                                                                             Poge8




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



                                                            Deputy
                rJ
                N                15.      Res judicata also bars retrial of claims that have been actually litigated and finally
                0
                 c:J
                 a.                       adjudicated in the original suit. See Coalition of Cities for Affordable Uti/. Rates v.

                 U'l                      Public Uti/. Comm'n, 798 S.W.2d 560, 562-63 (Tex. 1990), cert. den. sub
                N
                 ~~
                                          nom., Gulf States Utits. Co. v. Coalition of Cities for Affordable Uti(. Rates, 499
                 ~·


                 Iii                      U.S. 983, (1991 ).          Specifically, the nature of each and every dollar in the
                 ~·
                 ()                       Woodforest social security account was both, "actually litigated" and "finally
                 l'J
                 r•••
                 C>                       adjudicated" via this Court's disposition of Storer's Motion to Quash Writs based
                 ~:
                 ~)                       on the Court's finding that such funds are social security proceeds belonging

                                          solely to McAfee that are absolutely exempt from garnishment. See Exhibit "3,"

                                          ~5 .

                                 16.      The doctrine of res judicata also bars litigation of all issues connected with a

                                          cause of action or defense that, with the use of diligence, might have been

                                          litigated in the prior dispute. See Gracia v. RC Cola - 7-up Bottling Co., 667

                                          S.W.2d 517, 519 (fex. 1964). If any party had the slightest differing view of the

                                          Woodforest social security account than Storer, they had ample opportunity to

                                          make that argument, and, with diligence, would have done so when the Motion to

                                          Quash Writs was pending In November 2014, December 2014, and January

                                          2015. No party did. The Estate did file an opposition to the Motion to Quash

                                          Writs, but did not question the factual or legal conclusions about the Woodforest

                                          account containing social security proceeds.                   The period when the Motion to

                                          Quash Writs was pending would have been the timely, relevant, and appropriate

                                          time to question any of the legal or factual assertions made in Storer's Motion to

                                          Quash Writs, and would have been the correct time to bring to the Court's

                                         FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH le, 2015, ORDER PARTIALLY RELEI\SINCl TEMPORARY INJUNCTION,
                                                 FIRST AMENDED MOTION FOR ENTRY OF ORDER REI.EI.SINClSOCIAL SECURITY PROCEEDS FROM INJUNCTION
                                                                                  AND MOTION FOR SANCTIONS
                                                                                       Pogo 7




        Confidential information may have been redacted from the document in compliance with the Public Infor mation Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas


ft,A./_ o
 -   -ES\Itfe'lfirlftfln\f:lgr-EQ:r--ESeW,ntiieetBI'h*l&ll-1WIIII --- - - -- ·D eputy
          Ui
          N
          0                  attention for consideration, any evidence that the Woodforest account held
          0
          Ct.                anything other than social security proceeds. No party did; and it is too late to

          U'i                make any such argument now. 3
          r"J
          U'1
          If'"'      18.     The bottom line is that the March 12, 2015 hearing on Storer's February 10, 2015


          ..
          Ui
          (')
                             Motion to Parliafly Release Temporary Injunction as to the Woodforest account


          ..
          (\)

          Cj
                             was not the time nor the place for an "Impermissible collateral attack" on the prior

                             January 27, 2015 judgment of the Court. Browning v. Prostok, 165 S.W.3d 336,
          v·1
          (J                 346 (Tex. 2005) (stating that It is impermissible to "attempt to avoid the binding

                             force of a judgment in a proceeding not Instituted for the purpose of correcting,

                             modifying, or vacating the judgment, but in order to obtain some specific relief

                             which the judgment currently stands as a bar against.") U.S. Bank, N.A. v.

                             Kobemick, 402 S.W.3d 746, 754 (Tex. App.-Houston [1st) 2012); in re

                             Commitment of Briggs, 350 S.W.3d 362, 366 (Tex. App.-Beaumont 201 1);

                             Dallas County Tax Collector v. Andolina, 303 S.W.3d 926, 930 (Tex. App.-

                             201 0); Henderson v. Chambers, 208 S.W.3d 546, 550 (Tex. App.- Austin 2006);

                             see also id. ("Only a void judgment may be collaterally attacked").




                     3
                       No evidence was offered during the adjudication of Storer's Mallon ro Quash Writs of Garnishment that
                     the funds on deposit at Woodforest are anything but what Charles Storer has maintained they are, and
                     what the Court has found they are - social security proceeds. The sole questioning of the nature of
                     these funds was In the latest late arguments of Plalntiffs'/Estate's counsel on March 12, 2015, and even
                     then, there was no assertion that the funds are anything but social security proceeds. Rather,
                     Plaintiffs'/Estate's counsel stated only that she 'questions' some of the deposits in the account.
                     Questioning Is good, but offers this Court no reason to deny Storer's Motion. Additionally, questioning Is
                     also not testimony and Is not evidence. See Lee v. Stale, 442 S.W.3d 569, 579 (Tex. App.-San Antonio
                     2014) (stating that arguments of counsel are not evidence, even when counsel Is the honorable AHomey
                     General); Levy v. Cash, LLC, 2013 WL 6237273, at •1 (Tex. App.-Houston [14th] 2013) ("challenged
                     statements of .... Counsel were arguments of counsel, not testimony').


                           FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 18, 2015, OROER PARTV.LlY RELEASING TEMPORARY INJUNCTION,
                                   FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAl SECURrry PROCEEDS FROM INJUNCTION
                                                                    AND MOTION FOR SANCTIONS
                                                                         Pago8




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



A4dSt•'!rllng G. Senechal
                             et
                             m
                                                          Deputy
                                iii.     SOCIAL SECURITY PROCEEDS ARE PERSONAL PROPERTY

                      19.      In Richard v. Richard, a Court of Appeals held:

                                   "Social Security benefits are not community property, and a state
                                   court's attempted disposition would conflict with federal law,
           ~:"'"'
                                   disrupting a 'uniform federal scheme of benefits' by producing
                                   results which would vary 'depending upon the community property
                                   law of various states'".

           C          20.      /d., 659 S.W.2d 746, 747 (Tex. App.-Tyler 1983). The personal property nature
          (\J
           ,...
                              of social security benefits is well-settled under Texas law. See id.; see also In re

                               Marriage of Ford, 435 S.W.3d 347, 350, n.2 (Tex. App.-Texari<ana 2014)

                              ("Social Security benefits are not subject to division under community property

                              laws"); In re Marriage of Everse, 440 S.W.3d 749, 754 (Tex. App.-San Antonio

                              2013) ("(T]reatment of social security disability benefits paid during the marriage

                              as community property would do major damage to clear and substantial federal

                              interests") (internal quotations omitted); Granger v. Granger, 236 S.W.3d B52

                              (Tex. App.-Tyler 2007 pet. denied) ("Social security benefits are not subject to

                              division under community property laws because the language in 42 U.S.C.A.,

                              section 407 of the Social Security Act manifests a congressional intent to

                              preempt state law.").

                      21 .    For these additional reasons, the social security proceeds in the Woodforest

                              social security account are not subject to any claim of Decedent's Estate.




                             fiRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 18, 2015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION,
                                     FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION
                                                                      AND MOTION FOR SANCTIONS
                                                                           Pilge I




     Confidentia l info rmation may have been redacted from the document in compliance with the Public Info r mation Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, T exas



                                                            Deputy
               I'-'
               (\i
                                                              MOTION FOR SANCTIONS
               c··'
               C>
               C\,         22.   There have already been multiple hearings to address issues relating to the

               i!'l              Woodforest social security accounts and the assets therein.                         The Court has
               r,)
               lli               already determined to be wholly exempt from creditors under long standing
               ""
               ..
               ~-i               federal Jaw. Nonetheless, Rosemary and Jake Foltyn and Rosemary Foltyn, as

               CJ                Independent Executor of the Estate of Janet F. McAfee, while doing nothing to
               N
               ..~   ...
               t".               accept assets from Storer on behalf of McAfee, to satisfy the judgment recovered
               --
               ii'i
               0                 against McAfee, engage in an endless obstacle course aimed at denying Storer

                                 access to what everyone agrees is McAfee's exempt, separate property. The

                                 Foltyns have turned this tiny bit of remaining litigation into a game of smite,

                                 where, if they cannot get to the account because of federal law, they will do

                                 whatever they can so that no one else gets to it either, including its lawful owner.

                           23.   This spiteful harassment now takes the form of accusations that are never put on

                                  paper (as legal assertions would require references to actual facts and legal

                                  authority). And as the prior hearing showed, the sole, tardy reason offered to

                                  oppose the lifting of the 'injunction' freezing the Woodforest social security

                                  account was that counsel supposes that, maybe, somehow, some unknown

                                  small portion of such account is community property, without giving this Court or

                                  Storer so much as a clue as to how this may be the case.

                           25.    This Court's, Order Partially Granting Motion to Quash Writs held that the

                                  Woodforest account contains exempt social security assets belonging to McAfee.

                                  Counsel's most recent pretended suspicions do not overcome what i.s res

                                  judicata In this case, and offer no reason to put Storer through hearing after

                                 FIRST AMENDED MOTION FOR RECONSIDeRATION OF MARCH 16, 2015, ORDER PARTIALLY RELEASING TEMPORARY INJUHCTIOH,
                                         FIRST AMENDED MOT10N FOR ENTRY OF ORDER RELEASING 50Ci.'.l. SECURtlY PROCEEDS FROM IHJUNCTION
                                                                          AND MOTION FOR SANCTIONS
                                                                               Page 10




          Confidential information may have been redacted from the document in compliance with the Public Information Act.


     A Certified Copy
     Attest: 9/29/2015
     Stan Stanart, County Clerk
     Harris County, Texas



A4,J
 ~Ste~rtili;ln~g~G~s~en~ec~h~al~,;;:r~~~----neputy
           ro
           r'.!               hearing based on . unwritten, unspecified, and most certainly unproven
           C)

           c."'
           \,./
                             suspicion(s).

           ~'i        26.     Plaintiffs have not offered one bit of evidence that questions the source and
           ~~
           ~·I
           ...                nature of the funds on deposit at Woodforest, which subject is now moot. Their

           l!l                efforts to forever punish McAfee is perhaps understandable, but the use of the
            ~·
           ()                 civil courts to further punish McAfee is ultra vires, a violation of the double
           (\J
           ...
           ()
                             jeopardy clause of the United States and Texas Constitution, and totally ignores
           \1'1
           (.)               the very real fact that McAfee has already been judged and is being punished for

                              his crime every day he remains in the state's maximum security prison. See U.S.

                              Canst., Amd. V; Texas Canst., Art. I, §14. The Foltyns' secondary punishment,

                              no matter how gratifying for those for whom no punishment is sufficient, must

                             stop now, especially in light of the fact that they are relying upon enforcement of

                              a "temporary Injunction," which everyone knows Is not enforceable, but is,

                              Instead, being honored by Storer out of respect to the Court.

                      30.     In addition to the endless moving of the goalpost, the Foltyns knowingly filed

                              improper writs of garnishment and attempted to collect assets they knew to be

                              exempt under law.          Even after the Court heard and adjudicated the issue of

                              exempt assets, which determination they did not (and could not seriously)

                              appeal, and even after this issue had been resolved and was res judicata, they

                              now insist on an oral hearing on Storer's Motion for Reconsideration, without

                              anything in writing, so they can again hide from Storer what basis they seek he

                              be denied the relief he requests (see Pearson v. Wichita Falls Boys Club Alumni

                              Assoc., 633 S.W.2d 684, 686 (Tex. App.- Fort Worth 1982) (Texas litigation is
                            FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 10, 2015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION,
                                    FIRST AMEN DEC MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION
                                                                      AND MOTION FOR SANCTIONS
                                                                           Pogo11




      Confidential information m ay have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas



J/;4d
   Ster11ng G. Senechal Ill
                            Q                              Deputy
                             not "a game of chance and surprise, or 'Blind Man's Bluff"), and to increase

                             attorney fees.

                      31.    Plaintiffs' attempts to use the processes of this Court to continue their

                             harassment in the face of the Court's plain and unambiguous final Order should

            U1               no longer be tolerated. See, e.g., Bennett v. Reynolds, 2014 WL 4179452, at n.

                             49 (Tex. App.-Austin 2014) (courts declining to "beat a dead horse").

                      32.    The bottom line is that the issue Is settled and moot, and any further complaints

                             regarding same are barred by res judicata. Plaintiffs simply have no right to the

                             social security proceeds; they know this and have admitted this fact on the record

                             through their counsel.

                      33.    Therefore, for the above stated reasons, the Court should impose appropriate.

                             and just sanctions against Rosemary and Jake Foltyn, and Rosemary Foltyn, as

                             Independent Executor of the Estate of Janet F. McAfee, for their groundless and

                             frivolous pleadings, settings, and acts in violation Texas Civil Practice &

                             Remedies Code §10.001, 9.012 and Texas Rule of Civil Procedure 13.                                See

                             Unifund CCR Partners v. Villa, 299 S.W.3d 92, 96 (Tex. 2009) (sanctions

                             permissible for seeking to collect from debtor discharged In bankruptcy); Low v.

                             Henry, 221 S.W.3d 609, 616 (Tex. 2007) (sanctions appropriate for Improper

                             pleadings filed with the trial court); Gomer v. Davis, 419 S.W.3d 470, 478 (Tex.

                             App.-Houston [1st] 2013) (sanctions permissible for submission of pleadings

                             groundless in law and fact).




                            FIRST AMENDED MOTION FOR RECONSIDEAATION OF JMRCH 16,2015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION,
                                    FIRST AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION
                                                                     AND MOTION FOR SANCTIONS
                                                                         Page 12




      Confidential information may have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas


Jf;A_J ..o.
   Stirling G S ~meChal Ill
                                                          Deputy
                                                                     PRAYER
          0
          Q.               WHEREFORE, Charles Storer, Agent under a Power of Attorney from Kenneth

                     McAfee, prays the Court:

                           a.       reconsiders its Order Partially Releasing Temporary Injunction dated

          iii                       March 16, 2015, releasing from any injunction only the non-exempt GMS

                                    accounts, and not releasing from any injunction Kenneth McAfee's social

                                    security proceeds account at Woodforest National Bank;
          Ci
          lr';
          C)               b.       enters Charles Starers' proposed Order, attached hereto as Exhibit "6,"

                                    which releases the exempt social security account at Woodforest National

                                    Bank;

                           c.       grants appropriate and just sanctions against Rosemal)' and Jake Foltyn

                                    and Rosemal)' Foltyn, as Independent Executor of the Estate of Janet F.

                                    McAfee, for groundless and egregious efforts to keep Storer from assets

                                    that rightfully belong, under settled law, to Kenneth McAfee; and

                           d.       for such other and further relief at law or In equity to which Storer may be

                                    justly en@ed.




                          FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH IS, :1015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION,
                                  FIRST AMENDED MOnON FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY PROCEEDS FROM INJUNCTION
                                                                  AHD MOnoN FOR SANCnoNS
                                                                        P-13




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



A4dSter1ing G Senechal 111
                            Q                            Deputy
                                                                                 Respectfully submitted,

                                                                                 ANDERSON PFEIFFER, PC

                                                                                                        ~~
                                                                                 By:   Esther Anderson
                                                                                 SBN: 00792332
                                                                                 By:    Robert Telr, of Counsel
           U'J                                                                   SBN: 00797940
                                                                                 845 FM 517 West, Suite 200
                                                                                 Dickinson, Texas 77539-2903
                                                                                 Office: 281.488.6535
                                                                                 Facsimile: 281.614.5205
                                                                                 Email: esther@probateguardianshlp.com
                                                                                        rob@probateguardianship.com



                                                                  CERTIFICATE OF SERVICE

                               I hereby certify that a true and correct copy of the following has been forwarded to all
                      parties and/or counsel of record through our electronic service provider and/or facsimile and/or
                      certified mall, return receipt requested on this 30th day of April, 2015.




                                                                                           Esther Anderson

                      cc:      Matthew E. Lipman
                               Faust Oppenheim LLP
                               488 Madison Avenue                                          VIa Electronic Service Provider &
                               NewYork, New York 10022                                     Facsimile 212-371-8410

                               Dean M. Blumrosen, Esq.
                               4615 Southwest Freeway, Suite 850                           VIa Electronic Service Provider &
                               Houston Texas 77027                                         Facsimile 713-524-6570

                               Mary Elizabeth Duff
                               210 Main Street                                             VIa Electronic Service Provider &
                               Richmond, Texas 77469                                       Facsimile 281-341-6617

                               Woodforest National Bank,
                               through their registered agent
                               James D. Dreibelbis
                               25231 Grogan's Mill Road, Suite 100
                               The Woodlands, Texas 77380                                  VIA CMRRR ~fell'£7102. (J1Jf2 16ft tal ~ S"

                      N:IS1orar, Charles\Pioadlngs, Motions, AppYcatlonal1s1 amended motion to racanolder & mollan lor sanc:llons.dacx

                             FIRST AMENDED MOTION FOR RECONSID£RAT10N OF MARCH 15,2015, ORDER PARTIALLY RELEASINQ TEMPORARY INJUNCTION,
                                     FIRST AAIENDED MOTlON FOR EKTRY OF ORDER RELEASINil SOCIAL SECURITY PROCEEDS FROM INJUNC110N
                                                                       AND M0110N FOR SAHCTlONS
                                                                            Page 14




      Confidential information may have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas


ft,4-1{                      Q
 ~~~enffiin~g~a~s~e~n~a~oo~a~I#IJI~----------Depucy
          C\l                                                                                                        20150010298


                             1
                                                                                                                     01/0B/2015 RP2       ~28.00
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          ••'
                                                         DURABLEPOWEROFATTORNEYFOR
          a.
          lf'i
                       Pa                                 KENNETH COOPER MCAFEE
          N
          il"l
          f"l>
                         p                I KENNETH COOPER MCAFEE revoke all previous powers of attorney given by me.
                                  This is a durable power of attorney given for the management, protection, and conservation of
                                  my property, especially in the event I am unable for any reason to manage, protect, and cons~rve
          it!                     my own property, and to avoid a guardianship as to the management, protectipp; and
          ""
          ()                      conservation of my property. It is my purpose to delegate certain other authority. cifa personal
          N                       nature, such as the authority to make health care decisions in the event I cannot do sp for myself.
          C)                      The authority vested in a Personal Representative under this durable pq~er of attorney is
          U"i                     unlimited in nature, and is based in complete trust. A Personal Representative's authority nnd
          C)
                 ..,   ~-.
                                  legal capacity will be that of an agent and trustee .
             \...
                                             APPOINTMENT OF THE PERSONAL REPRESENTATIVE

                                          I appoint my CHARLES RUSSELL ST<iRER ~my Personal Representative.                               IUL.f
                                          My Personal Representative ma.x elect to receive a rel!sonable compensation for service
                                  considering the time required in the adspinistration of mY affairs and the responsibility assumed.
                                  My Personal Representative may delegate to a·state or' national banking c!XJloration, having trust
                                  powers and an active trust department, by agency agreement or otherwise, any one or more of the
                                  following administrative functions: the custody and safekeeping of assets, record keeping and
                                  accounting, and/or investment authority. The expense of the agency or other arrangement will be
                                  paid as an expense of administration pursuant to this power of attorney.
                                          My Personal Representative will serve without the requirement of bond or other security,
                                  and will have the authority given to agents by Texas law and to trustees under the laws of the
                                  state of Texas.
                                           This power of _attorney is revocable and revocation will be effective only if my written
                                   and acknowledged revocation is filed of record in the Deed Records of Harris County, Texas.
                                 . Aiiy person, entity, or institution dealing with my Personal Representative will be entitled to rely
                                   ul'on niy Personal Representative's sworn statement that this general power of attorney has not
                                   been revoked and that the Personal Representative is authorized and empowered to serve.
                                   Further, any person, entity, or institution dealing with my Personal Representative will be entitled
                                   to rely upon a copy of this Drurable Power of Attorney to the same extent they could rely on the
                                   original of this document. I indemnify and hold harmless any person, firm, institution, or agency
                                   from any loss or claim whatsoever in relying upon such statement, lind to this end, I bind myself,
                                   my estate, my heirs, successors, and assigns. I vest in my Personal Representative the authority to


                                                                               Pagelof4
                                                                                           I j
                                                                                                    EXHIBIT
                                                                                                       /
                                                                                                                     I




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



_AA4Starting ~"' Senechal Ill
                                            Q                          Deputy
              ('')
              (l"J
              0
              CJ            record this power of attorney at any reasonable time, and to the extent I may lawfully provide, my
              c~.
                            Personal Representative may do so at any time before the Personal Representative is to act with
              U'!           respect to any third party who may be asked to rely upon this document.
              C\1
              Ill
              ""                                  AS A GENERAL POWER OF ATI'ORNEY

             .."'
              i!~                    This docwncnt is to be construed as a general power of attorney vesting in my Personal
                           ;·RepreSentative complete and absolute authority, without my joinder or consent, to transact for me
             N'"..
              ~
                           aii.ti!l  .mY behalf any and all business I might transact if personally present and acting. Any
             C:'l            transaction completed on my behalf by my Personal Representative will be binding upon me, my
             U1
              ,::II
                             estate, my succe~ors; .and assigns.
             '·"                  Most general. powers of attorney attempt to list the specific power or authority in a
                      c·   Personal Representative. I .ani cpncerned that the attempt to make a comprehensive list might in
                           some way limit my Personal Representative's authority. The authority I vest in my Personal
                           Representative is comprehensive and unlimited.
                                  My Personal Representative will have the authority to continue during any period or
                           episode of my disability any progmm of plaMcd giving which I may have established. The
                           continuation of a program or plan pf giving. wHich includes aMual gifts to my Personal
                           Representative will not be a breach of trust or an act of self-dealing on the part of my Personal
                           Representative.
                                  This power of. attorney is to be considered arid co~rued as being a durable power of
                           attorney and will not tenninate upon my disability. As a trust, the authority of the Personal
                           Representative will continue following my death for a time reasonably needed to complete
                           administration of the property which, at the time of my death, was in the custody or control of my
                           Personal Representative. This would include, for example, all property held in thc;: .name of my
                           Personal Representative as trustee.

                                                         AUTHORITY AS A TRUSTEE
                                   I vest in my Personal Representative all of the power and authority given to trustees by
                           the trust laws of the state of Texas. If my Personal Representative determines that it is in my best
                           interest under the facts and circumstances then existing, I authorize my Personal Representative
                           to take possession of any and all of my property and estate, as trustee, and to hold, conserve, ami
                           administer such property for me and for my general welfare. My Personal Representative will be
                           responsible only for the property of my eslale over which my Personal Representative shalli!Sserl
                           direct control, and will not have liability for the loss of income from, or the dep~ciation in value


                                                                       Page2 of4




       Confidential information may have been redacted from the document in compliance with the Public [nfor mation Act.


  A Certified Copy
  Attest: 9/29/2015
  Stan Stanart, County Clerk
  Harris County, Texas



./1:..44_
    Sterling G. ~·: ·m ohallll
                                                            Deputy
                     .   '',.

            '\t
            !'r"~
            H
            C)
            c:1                  of, assets which my Personal Representative does not possess or which are retained in the form
            c.                   my Personal Representative received them.
            ~·I
                                        My Personal Representative will have the authority to employ such professional help and
            ~~
            Vi                   consultation as needeq to assist with the prudent administration of my property and to provide for
            ~·                   my welfare. The expense of professional help, consultation, and assistance will be an expense of
            l!'l                 administration.

            (~                              My Personal Representative is authorized, upon my death, to make direct payment for any
            ...
            E-J                 . expense related to my hospitalization, illness, treatment, and care prior to my death, and any
                                  expense related to my death and the settlement of my estate. The trust created by this document
            ()
            l.f'i                 Vlill ·.!Xl.ritinue for a reasonable time in which to conclude administration, pay expenses of
            0                     tc!nnii\ation·(iricluding the discretional)' payment of expenses and estllte settlement costs), and to

                    c·            make di'stribution of the trust property to those entitled thereto.

                                                            RATIFICATION AND INDEMNITY

                                         I ratifY and confinn all that my Personal Representative will do or cause to be done by
                                reason of the authority vested by this pDW7f of attorney and by law. I further provide that my
                                Personal Representative may indemnifY .anlJ ·hold harmless any third party who accepts and acts
                                under this power of attorney. No person, firm, agency or entity will be obligated to see to
                                application of payment delivered to my Personal Representative for or on my behalf. I bind
                                myself, my estate, my successors, heirs, and assigns, to irUlemnizy and hold harmless any person,
                                agency, or entity from any loss or claim which may be sustained as 'the result of relying upon this
                                document and the authority of my Personal Representative. My Pc;rsonal Representative is
                                authorized to proceed in my name and on my behalf against any person, agency or entity who
                                                                                                                 oi
                                will fail or refuse to recognize the authority of my Personal Represe~tatjve who. will ref'use to
                                transact business with my Personal Representative to my hann and detriment.

                                                                          CONCLUSION

                                         This power or'attomey, and the trust it represents, is dated and effective the date set forth
                                below.
                                                DATE: ----"';T-'-n-"-_·~..!1"'7_ _ ___,._., 2013.
                                                                          7


                                                                                 /(~ C'ao ?~ vY/'-4'). - \Q{)
                                                                                                   U
                                                                                KENNETH COOPER MCAFEE      f"-


                                                                              Page 3 of4




      Confide ntia l information may have been red acted from the document in compliance with the Public Infor mation Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Ha r r is County, T exas



AAdSter11ng G Senechal Ill
                                         Q                         Deputy
                    '   .   ~


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                                                                                                                                                                      ·,.
            0
            0                   STATE OF TEXAS                                                    §
            c~                                                                                    §
                                COUNTY OF POLK                                                    §
            Ui                                                                       -;}7f-fl-.   rfl "J y                                       .. : . ...
            N
                                       On this      ,?7       day of:&eG;K;~b;r :Z013 1 before me, a Not~ P.ubfip:fo~ the State of
            ..
            Iii
                                Texas, personally appeared KENNETH COOPER MCAFEE, pcrso~ity IQl~\iffi to me (or
            U!                  proved to me on the basis of satisfactoty evidence) to be the person whosf? name js subscribed to
            ,....               the within Instrument, and acknowledged that he executed the .same· and"tcir ihe purpose and
            C1
            (\J                 consideration therein expressed.
            ""                         WITNESS MY HAND AND OFFICIAL SEAL.
            0
            Iii
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                                                NOTARY PUBLIC
                                                STATE Df 1EXAS
                                                                               ".
                                                                                                             ·      '     ·     •
                                          My Convnbllllll Eljllru 0111112011


                                                                               ·r.            My Commission Exirtes:                      <!>I   -16 -~I <if




                                ktf--16/
                        O~~.qes .S~/l..e(l;·                                                                             RECORDER'S MEMORANDUM:
                                                                                                                 At tho \lmo of rocr'11ollon, tblf lnolrvmont wu
                        ~ '-' S"o f"A ,'P-Fi f>i. () S-\ ·                                                       touad to 1><1 fnodoquoll for the but pholographlc
                                                                                                                 ro~ducllon buoun of Jlfoglbfllly, carbon or
                        ~J~r-J . --r-.c 77(,)?--3- "/00'2.-                                                       photo copy, dlti.Oiorod paprr, tlc.Aff blockovfo,
                                                                                                                 addillons and chan~·: '111ft prucnt tl lht~mt
                                                                                                                 the fnltrumtnl w-.s ntod •nd 11cordtd,

                                                                                           Page 4 of4




      Confidential information may have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas



Af;_..dd_
     Ster11ng G. Senechal Ill
                                      .G                                       Deputy
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     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



                                               Deputy
                                                                   No.396,935

                         lNTHE ESTATE OF                                 §    IN THE PB.OBA'l"E COURT
                                                                         §
                         JANET FOLTYN MCAJ.l'EE,                         §     NO.I
                                                                         §
                         DECEASED                                        §    B..UUUS COUNT'II', TEXAS


                                      O:RDER PARTIALLY RELEASING TEMPORARY INJUNCTION


                               On     MaJ.C.h. I~J'?Court considered the Motion for Partial Release of th=
                        Temporary Injunction filed by R.osclllaty Foltyn, as Adminisltatrix of the 'Estate of Janet Foltyn

                        MoAfee and the arguments of counsel. Aftor duo consideration of the Motion, the Response

                        thereto, and the arguments of counsel, the Court finds the motion is GRANTED and ordem the

                        PARTIAL RELEASE of the TEMPORARY INJUNCTION to Dean M. Blumroscn as the

                        attorney for Rosemary Foltyn and Jake Foltyn, as Administratrix of the Estate of Janet Foltyn

                        McAfee as to the accounts referenced below ONLY:
                                1.      Account nwnber S5H056008 holding approximately $6,694.39, or all funds

                        remaining in the accowrt after liquidation and account sCI'Vicc fees, at OMS Oroup, LLC; and

                               2.       Account number SSH004628 holding approximately $1,661.15, or all funds

                        remaining in the account after liquidation and account scrYicc fcc5, at GMS Group, LLC.

                               IT IS FURTHER ORDERED that the other accounts and a5sets described in the June 8,

                        2011 Agreed Order for Temporary Injunction should remain subject to the Temporary

                        Injunction.

                               Signed on:r1J\w:h /Ca. 2015.




                                             EXHIBIT
                                       I :L




     Confidential infor mation may have been r edacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



A4dSterilng G Senechal· Ill
                              o                          Deputy
                   JAN-C7-2B15 15:26 From:71336B67B1                                  To:92816145205

            ro
            ~j
            C.::                                           CAUSE NO, 396935-401
            0
            C!•.
                          INRE                                      §       IN THE PROBATE COURT
            li1           JANET F. McAFEE,                          §
            N
            lf'j          Deceased                                  §       NUMBER ONE
            ,..                                                     §
                          ROSEMARY FOLYN and                        §
                          JAKEFOLYN                                 §
                                                                    §
                          ~                                         §       OF
                                                                    §
                          THE GMS GROUP, LLC and                    §
                          WOODFOREST NATIONAL BANK,                 §       HARRIS COUNTY, TEXAS
                          Defendants

                   (                  ORDER PARTIALLY GRANTING MOTION TO QUASH WRITS
                                        OF GARNISHMENli.~ ~18806'/llle ll~dt1Ue=FIONS.

                                 On this day came to be considered the Motion to Quash Writs of Gamlshmenl

                          flied by Charles Storer, Power of Attorney for Kenneth Cooper McAfee. After review

                          and consideration of said Motion, the evidence, the responses, and the arguments of

                          counsel, the Court finds the following:

                          1.    Judgment for damages in the amount of $2,000,000.00 plus pre and post

                                judgment Interest and court costs was entered by ~his Court on March 21, 2014

                                in Cause Number 396,93~401; Rosemary Foftyn, fndlviduaffy end as

                                Independent Administratirix of the Estate of Janet Foltyn McAfee, Deceased; and

                                Jake Foltyn, Individually v. Kenneth Cooper McAfee Plalntiffs/Garnlshors herein

                                executed two writs of garnishment directed at The GMS Group, LLC, r"GMS")

                                and Woodforest NaUonal Bank ("Woodforest").

                          2.    The GMS acco~nt ending in 606 (SSN xxx-xx-4352) and the Woodforest account

                                ending In 404, hold assets in the name of or for the benefit of Kenneth Cooper

                                McAfee.

                          3.    The GMS account ending In 606 (SSN ,-¥13521 is          ag jgdjvidual retirement
                                                                    OIDIR         E~tiBrT I




      Confidential information m ay have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/201 5
 Stan Stanart, County Clerk
 Harris County, Texas



~.-d.d_ .mQ
    Sterling G: Senecnal
                                                             Deputy
                   JAN-27-2215 15:26 From:71336867B1                                    To:928161'\52B5

           c~
           ~'J
           0                      account for the benefit of Kenneth McAfee that qualifies for federal income tax
           (J
           c~
                                  deferral. Such account holds, exclusively, funds exempt from garnishment under
           V'l
           r'J                    Tex. Prop. Code. §42.0021(a).        Because such account is exempt from
           Ui
            \'"u
                                  garnishment, the writ directed to the GMS as to Kenneth McAfee's account

           -
           1ri

           0
           N
                                  ending in 606 (SSN xxx-xx-4352) should be quashed. All other accounts at GMS

                                  thai hold assets of, or are for the benefit of, Kenneth C. McAfee or Kenneth
            e•·
            C)                    McAfee remain subject to the wrll.
            ui
            C1
                           4.     Further, GMS Group, L.L.C., Is Indebted to Kenneth Cooper McAfee ("Judgment

                   c·             Debto~') in the amount of $6,694.39 and account number 55H056008 and

                                  $1,661.15 In account number 55H004628 for a total of $8,355.54.

                           5.     The Woodforest account ending In 404 holds, exclusively, social security benefrt

                                  pro~eds   of Kenneth C. McAfee which benefits are exempt from garnishment

                                  under 42 U.S.C. §407. 42 U.S.C. provides an absolute exemption and there are

                                  no statutory exceptions to same. Because the Woodforest account ending in 404

                                  contains only funds exempted from garnishment, the writ directed at Woodforest

                                  as to Kenneth McAfee's account ending in 404 should be quashed.         All other

                                  accounts at Woodforest that hold assets of or for the benefit of Kenneth C.

                                  McAfee or Kenneth McAfee remain subject to the writ. It Is therefore,

                                ORDERED, ADJUDGED AND DECREED that the writs of garnishment directed at

                           (I) GMS Group, LLC, for the account number ending with 606 (SSN xxx-xx-4352) In the

                           name of and belonging to Kenneth McAfee, and (II) Woodforest National Bank for the

                           account number ending with 404 In the name of and belonging to Kenneth C. McAfee

                           are QUASHED. It is further,




      Confidential information may have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas


.ft,..d-4_
       Stertlng G Senechal Ill
                                        0                    Deputy
                   JAN-27-2015 15:e6 From:71336867B1                                            To:92B161'15205

          0
          ~
          ("·
          .I
          ()                   ORDERED, ADJUDGED AND DECREED that all other accounts at GMS Group
          u.
                           LLC, and Woodforest National Bank that hold assets In the name of Kenneth McAfee or
          U'l
          N                for the benefit of Kenneth C. McAfee remain subject to the writs.                      Specifically,
          ,...ul
                           Garnishors, Rosemary and Jake Foltyn shall recover against the GMS Group, l.L.C.,
          ill
          ,..              the sum of $8,355.54, such sum to be credited to the Judgment entered in the wrongful
          e
          N
          ...              death judgment. It Is further,
          0
          U'l                  ORDREED, ADJUDGED AND DECREED that the payment of such sums as set
          ()

                           forth above shall issue from funds of the Judgment debtor, Kenneth Cooper McAfee,
                   (
                           currently being helcl by Garnishee, the GMS Group, L.l.C., from the following accounts:

                           $6,694.39 In account number 55H056008 and $1,661.15 In account number
                                                     ·         1ft 140" r.f.tt1t "., fb.. ()rriet ~let1Jtft1        k
                           55H00462B for a total of $6,355.54 It Is further,
                                                             1

                              ORDERED, ADJUDGED AND DECREED that Garnishee, The GMS Group, L.LC.

                           shall immediately send $6,355.54 payable to Deem M. Blumrosen, Attorney, at 4

                           Southwest Freeway, Suite 850, Houston, Texas 77027.1t is further,

                   ,···           ORQ6g@, ADdl:JDSED AND DECRI;;fiiD tf:lat              tre Agreed Order for Temporary
                           Injunctions In Cause No. 396,935; In the Estate of Janet Foltyn McAfee, Deceased,

                           dated June B, 20 11,. Is ..dlssolyffi and all assets Eleserieed tttereiA, aAEI (fT13artlslflat:, lhe

                           SMS ecce!~At eReiAO iR 696 a11d the lfv'uudforest aeeoemt eAdiAg ill404, are releaseetz




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



flAd___G
    Starting G Senechal Ill
                                                                 Deputy
                      JAH-e7-eB15 15:26 From:71336B67B1                                                   To:928161'152B5



                                       ~IGNED this _ __,2..._7._~--

           •..
                              ANDERSON PFEIFFER, PC


                             By: Esther Anden;on
                                                 ~~
                             SBN: 00792332
                             845 FM 517 Wes~ Suite 200
                             Dickinson, Texas 77539
                             Office: 281.488.6535
                             Facsimile: 281.614.6205
                 c           Email: esther@probeteguerrflenship.com
                             Of Counsel:
                             Robert Teir, PUC
                                                fokr+ IM-, WI pun:~ Cf,q.
                             By: Robert Telr
                             SBN: 00797940
                             846 FM 617 West. Suite 200
                             Dlcldnson, Texas TI539
                             Office: 832.365.1191
                             Facsimile: 832.550.2700
                             Email: rob@telrlew.com
                             Attorneys for Charles Storer,
                             POA for Kenneth Cooper McAfee


                             Mitchell & Duff, LLC
                 \.   __
                             By: Mary Elizabeth Duff
                             SBN: 06165880
                             210 Main Street
                             Richmond, Texas 77469
                             Office: 281-341-1718
                             Office: 261-341-5617
                             Attorney for Estate of Rosemary F. McAfee, Deceased



                             By: Dean M. Blumrosen
                             SBN: 02617900
                             4615 Southwest Freeway, Suite 860
                             Houston, Texas77027
                             Office: 713-524-2225
                             Facsimile: 713-524-6570
                             Attorney for PlalnUffs/Garnl&hors, Rosemary and Jake Foltyn


                             N:\S(orvr, CharleiiOldetJIOiller Oran~ng Mo~o~ to Qvesh (no! asraed),doa.<

                                                                                         OIID!k




      Confidential information may have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas



~44__o
   G: Siriecnal
     Ster11ng                             lU
                                                                            Deputy
           (\)
           '\t
           C)
           C)
           0..                                             622CAUSE NO. 396936-401

                      INRE                                               §       IN THE PROBATE: COURT
                      JANET F. McAFEE,                                   §
                      Deceased                                           §       NUMBER ONE
                                                                         §
                      ROSEMARY FOLYN and                                 §
           C)         JAKEFOLYN                                          §
           N                                                            §
                      v.                                                §        OF
                                                                        §
                      THE GMS GROUP, LLC and                            §
                      WOODFOREST NATIONAL BANK,                         §        HARRIS COUNTY, TEXAS
             .(       Defendants                                        §

                                             MOTION TO QUASH WRITS OF GARNISHMENT



                      TO THE HONORABLE JUDGE OF SAID COURT:

                              COMES NOW Charles Storer, Power of Attorney for Charles McAfee, Defendant

                      herein·, and holder of the accounts Plaintiffs seeks via the Writs of Garnishment Issued

                     by this Court, who moves to quash (dissolve) the two Writs of Garnishment Issued post-

                     judgment In this cause (to Woodforest National Bank and GMS Group), as the Writs

                     reach accounts andfor assets that are wholly exempt from the reach of judgment

                     creditors (indeed from the reach of all creditors). In support of this Motion, Mr. Storer,

                     would show the following: 1

                                                    I. INTRODUCTION AND SUMMARY

                     1.      This Court issued two writs of garnishment at the request of Plaf~tlffs. While a

                             judgment creditor has a right to pursue collection on their judgment, Including via

                             garnishment upon depository accounts, Texas and federal law sharply limit what

                             property of a judgment debtor may be taken. Here, both of the accounts are

                  1
                      Mr. MtAfee d~lgnated a Power of Attomev because he Is lncartl!rated.   I
                                                         MOTlON TO QUASH~ OF GARNISIIMENT    }
                                                                                                 EXHIBIT
                                                                                                  I   I    I
         ~----------------------------------------------------------------------------------




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Harris County, Texas



                                                                 Deputy
             c-;
             ~~
             0
             0                entirely and undivldedly, protected from the reach of all creditors. Because these
             CL
             lf''I            accounts may not be taken by any creditor, with any judgment, the two Writs
             ,,.
             N
                              issued while the Court was unknowing of the exempt status of these accounts,
             "'
             u,               should and must be quashed.
             ""
             Q                                II. FACTS AND PROCEDURAL HISTORY
             '\J         2.   Mr. McAfee was convicted of a criminal offense involving the death of the
              (~
             ul               decedent, Janet Foltyn McAfee, and is currently serving his sentence at a Texas
             ()



                     c        correctional institution. The underlying claim was a wrongful death action against

                              Mr. McAfee. This Court found for the Plaintiffs In the wrongful death action.

                         3.   Post-judgment, the Plaintiffs sought from this Court, and received, two Writs of

                              Garnishment. The Application for Writs of Garnishment made no mention of the

                              exempt status of either account. Rather, the Application simply noted that the

                              garnishees, both Woodforest and GMS, may be Indebted to the Defendant "by
                                                    '
                              maintaining or holding one or more bank accounts." Application for Writ of

                              Garnishment,   w.
                  ( ..
                         4.   The first Writ of Garnishment reached Mr. McAfee's depository account at

                              Woodforest National Bank ("Woodforesr). This account, however, is beyond the

                              reach of all credftors, Including the judgment creditors in this cause, because the

                              account was opened to receive, received, and Is now holding funds received

                              pursuant to the federal Social Security Disability Insurance ("SSDI") system. The

                              account contains no funds other than those received as Social Security benefits.

                         5.   The second Writ of Garnishment reached Mr. McAfee's depository account held

                              by his former employer, GMS Group, L.L.C. ("GMS").           This account Is also




        Confidential information may have been redacted from the document in compliance with the Public Information Act.


   A Certified Copy
   Attest: 9/29/2015
   Stan Stanart, County Clerk
   Harris County, Texas


   /)~~4__Q
~rtlng GO Sened\St m                                       Deputy
              '11
              '\t
              C)
              C)                      beyond the reach of all creditors, including the judgment creditors In this cause,
              0.
                                      because the account Is Mr. McAfee's tax-deferred retirement benefit account
              lf'l
              C'J
              11'•,
              d:                      arising from his employment with GMS.
              ~·
                              6.      In lieu of an Answer, GMS reported to this Court that It Is holding deposHory
              ([1

              C)                      accounts belonging to Mr. McAfee. See letter from Matthew F. Lipman, Esq.
              (·J
                                      (counsel for GMS Group) to Stan Stanart, County Clerk (Oct. 23, 2014), which is
              0
              lf'i                    a part of this Court's file and Is Incorporated herein by reference. See Exhibit
               C)

                                      "C."    GMS' response Indicates that the account in question is a retirement
                 ( '
                                      account qualified under IRS rules for tax deferment. ld@ Exhibit "2.•

                             7.        Garnishee Woodforest National Bank has yet to answer Its Writ.

                                                            Ill. ARGUMENT AND AUTHORITIES

                             B.      All social security benefits, Including SSDI, are exempt from collection actions,

                                      and beyond the reach of deptors, pursuant to a federal statute that was a central

                                     component of the original depression-era Social Security Act. See 42 U.S.C.

                                     §407; H. R. 7260 (1935); see alsoln ra Frankfin, 506 B.R. 765, 769 (Bankr., C.D.
                    (
                      '-··           Ill. 2014) ("These proscriptions have been part of the Social Security Act since

                                     1935"). z

                             9.      The absolute nature of the social security benefit exemption has been recognized

                                     by the United States Supreme Court, which observed that 42 U.S.C. §407(a)

                                     "unambiguously rules out any attempt to attach Social Security benefits."

                                     Bennett v. Arkansas, 485 U.S. 395, 397, 108 S.Ct. 1204, 1205, 909 L.Ed2d 455


                             2
                               The exemptiOn reaches Social SeCurity retirement Income, disability benefits, and supplemental security
                             Income, amongst other benefits. See Townsel v. Dish Network, 666 F.3d 967, 966 (7111 Cir. 2012).
                             Veterans' benefits are exempt and treated the same way. See Christensen v. Pack, 122 Nev. 1309, 149
                             P.3d 40,46 (Nev. 2006).




       Confidential information may have been redacted from the document in complia nce with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas


.ft,..J4.                             _Q
 -~StaatFftHflfl'tE§HG~&!t481!1fRM!ec;t,~a_.!-+fi~I-L_ _ _ _ _Deputy
           "1
           ~l'
           Ci
           C'                    (1988).
           Cl.
           lf"l
                          10.    The same complete exemption also reaches accounts that qualify for deferment
           \\J
           U'\                   of federal income tax, Including Mr. McAfee's 401 (k) account that Is the subject of
           ~· "'

                                 the GMS garnishment.                  IRS qualified retirement accounts are exempt tram
           li'1
           ,.
           0                     collection actions, and beyond the reach of debtors, pursuant to Texas law. See
           l\1
                                 Tex. Prop. Code, §2.0021. The legal Issue, and exempt nature, regarding both
           0
           IIi                   accounts Is neither controversial nor a close call.
           0
                                IV. EXEMPTION OF THE WOODFOREST (SOCIAL SEC URI~) ACCOUNT
             -c.                     A. The Exemption for Social Security Benefits is Statutory and
                                                      Contains No Exceptions

                       11.       The federal statute protecting federal social security benefits from the reach of

                                 creditors, Including those on deposit, Is unequivocal and sweeping in Its scope. It

                                 is so protective of. federal benefits, it goes as far as to prohibit recipients of these

                                 benefits from voluntarily choosing to assign or alienate these benefits, even                      for
                                valuable consideration.            See 42 U.S.C. §407. Indeed, the sole manner these

                 (_             funds can be put into the hands of others is through standard purchases of goods

                                and services after the benefits have been cashed or deposited. These funds

                                may not be assigned to creditors, including by the involuntary means of

                                garnishment. See Townsel v. Dish Network, 668 F.3d 967, 968 (71h C!r. 2012)

                                ("A creditor that tried to garnish or attach Social Security benefits ... would
                                                                        3
                                encounter a §407 defense).



                      3
                        The statute creates three separate protections for social securfty benefits. It forbids assignments of
                       such benefits. See 42 U.S.C. §407(a). Second, It makes these benefits beyond the reach of a
                      bankruptcy trustee. See /d. Third, and relevant here, II exempts these benefits from state or federal
                      judicial action. See /d. f'none of the moneys paid or payable or rights existing under this subchapter shall be
                                                           .. ..... ... "'""' ,..,,.,.,.,.,"......................-........ . . .
                                                             ,.. ,..




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas


A_44_
    Stertlng GO senechallll
                                    .0                                 Deputy
                    12.    The absolute nature of the exemption is based on Congress' Insistence on firm

                           and secure protection for "beneficiaries and those dependent on beneficiaries

                           from the claims of creditors." Reams v. Oklahoma, 411 F.3d 1164, 1172 (10th

                           Cir. 2005); see also In re Greene, 27 B.R. 462, 464 (Bankr., E.D. Va. 1983)
          ill
                           (§407 "deals with the rights of social security recipients and seeks to protect !heir

                          benefits from the reach of creditors").

                    13.   In fact, Congress wanted to protect beneficiaries "from seizure in the legal

                          process." /d.      By doing so, Congress ensured that the underlying purpose of

                          social security benefits, to provide a minimum level of support and financial

                          stability, cannot be hindered by creditors, regardless of the merits of !he

                          creditors' claim. See id.; see also In re Buren, 6 B.R. 744, 746 (Bankr., M.D.

                          Tenn, 1980) ("The purpose of the Social Security Act of 1935 was to provide a

                          minimal level of economic security for the unemployed, the elderly, the homeless,

                          anq the blind").

                 14.      The Woodforest account that Plaintiffs seek to garnish ls funded with social

                          security deposits. See Deposit/Transaction record of Woodforest National Bank

                          (showing monthly direct deposits as received from "SOC SEC US TREASURY'')!

                15.       While Mr. Afee Is disabled, he is admittedly not homeless, elderly, or blind. The

                          lack of a destitute state, however, as well as the existence of other means of

                          support, such as the Texas Department of Corrections, does not cause the

                subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any
                bankruptcy or Insolvency laYI').
                4
                  A spreadsheet showing all deposits Into the account since December of 2009 Is attached ID lhls
                pleading as Exhibit A. The Woodforest-generated slatement of account activity is attached to this
                pleading as Exhibit B. The account ac!Mty ceases in November, 2010 except for the exclusive continuing
                Social Security benefits directly deposited and Interest on the account See /d.




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A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



A~d
  G.
   Stertlng     Senechal Ill
                                o                         Deputy
          j·...
          ~
           ~:)
          ()                 shedding of the exemption of these funds from garnishment or collections. The
          CL
          (l                 Social Security Act uses absolute language, devoid of any exceptions, for any
          (\j
          111                circumstances. See Philpott v. Essex County Welfare Board, 409 U.S. 413,415,
           ~l·



                             93 S.Ct. 590, 34 LEd2d 608 (1973) (because "the language is all-Inclusive,• the
           Vi
           -·
           ~J                Social Security Act prohibits any state from reaching federal disability benefrts);
           N
           ~-                id., 409 U.S. at 416 ("it Imposes a broad bar against the use of any legal process
           (~
           u~
           c                to reach social security benefits").5         There Is, therefore, no need-testing for the

                            exemption to apply. Cf. Reams            v. Oklahoma, 411       F.3d at 1172 \'To tinker with
             (
                            that scheme could open the door for a loss of protection down the road").

                      16.   Rather, the exemption Is absolute. The statutory language, the United states

                            Supreme Court noted, "is broad enough to reach all security benefits," no matter

                            the cause of the benefits or the situation of the beneficiary." Philpott                 v. Essex
                            County Welfare Board, 409 U.S. at 417; see also In re Carpenter, 614 F.3d 930,

                            932 (81h Clr. 2010) (exemption statute Is unambiguous, and therefore courts have

                            no need for legislative history or implied exceptions); accord, In re Ragos, 700

                            F.3d 220, 222-224 (51h Clr. 2012).6

                  17.       The statute, therefore, Is an unyielding prohibition on the garnishment sought In

                            this c~se. See N.LR.B. v. HH# Trucking, Inc., 755 F.3d 468 (ih Cir. 2014)

                            ("Social Security benefrts .. . cannot be garnished or otherwise attached after

                  5
                      PhHpot was an unanimous decision/opinion of the Supreme Court.
                  8
                   There was, for a brief, time an Implied excepUon, In just one federal circuit, for beneficiaries who did not
                  need the social security funds for their sustenance. See Citronelle-Mabile Gathering v. Watkins, 934 F.2d
                  1160 (11 1h Clr. 1991). Not one of the Citronelle courfs sister circuit courts adopted that holding given the
                  absolute language of the statute. Citronelle's reach, In any event, tennlnated at the hand of the Supreme
                  Court. See Law v. Siege/,- U.S.-, 134 S.Cl11BB, 1196,188 L.Ed2d 146, B2 USLW 4140 (Marth
                  2014).




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
                            receipf'); NCNB Financial Services v. Shumate, 829 F.Supp. 178, 180 0/V.D. Va.

          Jl                1993) (statute "prohibits attachment, levy, or garnishment on such benefitsj; In
          .,
          1,\j

          IJI               re Franklin,   506 B.R. 765, 773 (Bankr., C.D. 111.2014) (exemption provision is not

                           tied to Bankruptcy Code and Is assertable defensibly Including against

                           garnishments). In re Miller, 445 B.R. 504, 507 (Bankr., D.S.C. 2011) (the statute

                           "contains no limiting language" and therefore extends to all social security

                           income); id., ("section 407(a} operates as a complete bar to the forced inclusion

                           of past and future social security proceeds In the bankruptcy estate') [quoting In

                           re Carpenter, 615 F.3d 930, 946 (Blh Cir. 2010)]; see a/so Bennett v. Arkansas,

                           485 U.S. 395, 398, 108 S.Ct. 1204, 1205-06, 99 L.Ed2d 455 (state may not

                           attach social security benefits of state prisoners) (per curiam); Marengo v. First

                           Massachusetts Bank, 152 F.Supp.2d 92 (D. Mass. 2001) (efforts to reach

                           account contained benefrt deposits violated Social Security Act).

                     18.   Judicial interference with these funds, Indeed, is so disfavored, It has been held

                           to Implicate the constitutional due process rights of social security beneficiaries.
                 (
                           See Dionne v. Bouley, 757 F.2d 1344, 1350 (1st Clr. 1985) ("It is also clear that

                           Dionne's interest In retaining her exempt social security funds free from

                           attachment was the kind of property Interest that is entitled to due process

                           protection").

                     19.   Earlier this year, the United States Supreme Court once again held tha~ the

                           statute means what it says:

                               § 522 does not give courts discretion to grant or withhold exemptions
                              based on whatever considerations they deem appropriate. Rather, the
                              statute exhaustively specifies the criteria that will render property
                              exempt.




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



                                                         Deputy
        - - - - - - - - - - - - -·---                                 · ·- -




          ('])
          ~
          (,J
          0
          t\                       Law v. Siegel,- U.S.-, 134 S.Ct. 1188, 1196, 188 LEd2d 146,82 USLW4140
          V't
          (\j                      (March 2014); see also id. ("courts are not authortzed to create additional

          ,•.
          IIi
                                   exceptions"); In re Franklin, 506 B.R. at 773 ('Congress has strongly expressed

          \rt
           ,.                      Its policy of protecting social security benefits, and it is not for the courts to read
           C'•''
           N                       an Implied exception" Into the exempting statute).
           ...
           ,.
           \.J            20.      The mountain of precedent and the unambiguous wording of the federal statuiB
           U"1
           ::;
                                   mandate the quashing of the Woodforest writ. Social security funds can never be
                   ..
                 (                 used to pay creditors, except when received, turned into cash, and become the

                                   subject of voluntary spending by the debtor. See In re McFarland, 481 B.R. 242,

                                   250 (Bankr., S.D. Ga. 2012) (social security benefrts remain exempt from

                                   creditors after they are "received by the Social Security recipient and deposited

                                   Into the bank'1; In re Moore, 214 B.R. 628, 630 (Bankr., D. Kan. 1997) (the funds

                                   do not lose their exempt status when deposited Into a bank account'1; see also S

                                   & S Diversified Services v. Taylor, 897 F.Supp. 549, 552 (D. Wyo. 1995) (Social

                                                                                                                              7
                   ( __           Security benefrts remain exempt when deposited Into joint bank account).

                          21.     These benefits, and the Woodforest Bank account, are, absolutely and entirely,

                                  beyond the reach of any creditors, and therefore an impermissible object of a writ

                                  of garnishment. See NCNB Financial Services v. Shumate, 829 F.Supp. at 180

                                  (W.O. Va. 1993} (statute "prohibits attachment, levy, or garnishment on such


                          7 One creditor can get at social security benellts: the government of the United States. See Lockhart v.
                          United States, 546 U.S. 142, 145, 126 S.Cl699, 701, 163 L.Ed2d 557 (2005) (federal government may
                          attach social security benefits of federal student loan debtors. Congress, however, expficiUy passed an
                          exception to the no-attachment provision of the Social Security Act to achieve that result See 31 U.S.C.
                          § 3716(c)(3)(A)(J). The fact that Congress had to twice-amend. the debt collecUol) legislation, and
                          specifically overrtde the anti-creditor provision of the SOCial Security Act, demonstrates how steadfast lhls
                          protection remains.




     C onfidential inform ation may have been red acted from the document in complia nce with th e Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



A..J4
   Stef1ing GO Senechal lit
                                      .o                             Deputy
                               benefits"); fn re Franklin, 506 B.R. at 773 {Bankr., C.D. 111.2014) (exemption

                               provision Is not tied to Bankruptcy Code and is assertable defensibly Including


           ....
                               against garnishments). To ens~;ne that the congressional/statutory protection                     oi·
                               social security benefits is achieved, writs of gamfs.hment Inadvertently issued

                               without the Court's knowledge of the exempt status of these funds, must be

                              quashed.       See NCNB Financial Services v. Shumate, 829 F.Supp. at 181
           ()
           iii                (quashing writ to the extent it reached exempt funds).8
           0
                          B. COMINGLING OF SOCIAL SECURITY BENEFITS DOES NOT AFFECT TH8R
              ·C.            EXEMPT STATUS, AND ANY SUCH COMINGLING IN THE WOODFOREST
                                             ACCOUNT CEASED YEARS AGO

                        22.   It may be true that the Woodforest Account was occasionally used to hold other

                              assets of Mr. McAfee, unrelated to his social security benefrts.                     This has no

                              bearing on the protected status of the account and of the social security funds

                              within ft. See NCNB Financial Services v. Scumate, 829 F.Supp. 178, 180 ryv.o.

                              Va. 1993) ("Social security benefits are protected even if they are commingled in

                              a savings or checking account with funds from other sources"); In re

                              Lichtenberyer, 337 B.R. 322, 325 (Bankr., C.D. Iff 2006) (same).

                    23.       While courts may-differ in the accounting method used to calculate protected                             I
                              funds in a comlngled account, no court has questioned the protected status of
                                                                                                                                       I'
                                                                                                                                       i
                                                                                                                                       I
                    1
                      While the federal regulations Insist that banks calculate the 'lookback" amount, reaching two months of
                    deposits, that small period of time only addresses the bank's requirements. None of the deposits of
                    federal benefit funds are reachable by creditors, no matter how long ago the deposit oa:urred. See 31.
                                                                                                                                       I
                    C.F.R. §212.6 (duty to determine an amount that the financlallnstitutiOil must protect from creditors); ld.,
                    §212,g (safe harbor for financial Institutions form liability claims). The regulations do not, and canno~
                    change the blanket exemption of federal benefit funds from the reach of creditors. See /d., §212.6
                    ('Nothing In this part shall be construed to limit an Individual's right under Federal Jaw to assert against a
                    creditor a further exempUon from garnishment In excess of the protected amoun~ or to alter the exempt
                    status of funds that may be protected from garnishment under federal law.




      Confidential information may have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas



A~d · .o
  . Starting G. Senechal lit
                                                                Deputy
                           social security benefits in a comlngled account On the contrary, the protected

                           status is 'black-letter law,' natlonaUy.             See Philpott v. Essex County We/faro

                           Board, 409 U.S. 413,416-17, 93 S.Ct. 590,592-93,34 L.Ed2d 608 (1973) (funds
          •..
                           exempt so long as they maintain the character of money); In m King, 508 B.R.
          U'l
                           71, 78 (Bankr., N.D. Ind. 2014) ("commingling of an earned Income credit refund

                           with other funds does not affect the ablltty to claim the statutory earned income

                           credit exemption"); In m Lantz, 451 B.R. 843, 847 (Bankr., N.D. Ill. 2011)

                           (depositing funds into an account that contains other funds does not lose exempt
           ·(
                          status for social security funds, if the latter can be traced); see generally 2A Soc.

                          Sec. Law & Prac. §34.8 (Sept. 2014).

                 24.      Because the account may have received, and may have comingled funds on

                          deposH, this Court can hold a hearing to trace the protected assets, if the

                          Garnishor deems -such a hearing worth the time and expense. See Philpott, 409

                          U.S.at 416-17, 93 S.Ct at 592-93; see a/so Christensen v. Peck, 149 P.3d at 48

                          (it "defies logic" to argue that exempt benefits lose that status with comingiing).9

                 25.      in the present case, the Court need not be con~med about choosing .the best

                         ·method, as the bank records for the account show that the funds now on depostt

                          came exclusivelv from the Social Security Administration. See In m Hensley,

                          393 B.R. 186, 198 (Bankr., E.D. Tenn. 2008) (accepting testimony that entire




                 8
                   Tracing can be done through the last In/first out method {UFO), lastlnllast out {LIFO), and other means.
                 All calculations are •an equitable substitute for the lmposslbiHty of specific Identification.• In re Lantz, 451
                 B.R. at 848; In re Uchtenberger, 337 B.R. 322, 325 {Bankr., C. D. Ill. 2006) {selection of methods should
                 be guided by the principle that exemptions are to be Interpreted noorally, In favor of the debtor). In other
                 Instances, courts have chosen a pro-rata basis by measuring the percentage of deposits that came from
                 the exempt source. See Neilson v. McGuire, 2006 WL 1875383, at"4 {D. Nebr. 2006).




     Confidential information may have been r ed acted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas




ft~                       Q
   Sterling G. Senechal Ill
                                                              Deputy
               (\;
               u·1
               C)
               0                        source of funds In bank account except for one gift were social security
               Cl..
                                        benetits). 10
               ttl
               N
               U"i                                      V. EXEMPTION OF THE GMS (IRA) ACCOUNT
               "''''
                                26.     The exemption for IRS qualified tax-deferred retirement accounts, such as Mr.
               ~·!

               •.
               ~·
               t .•.                    McAfee's GMS account, comes from state law.                    See Tex. Prop. Code,
               N
               ...                      §42.0021(a) (Including within exemptions •a person's right to the assets held in or
               ()
               U'1                     to receive payments, whether vested or not, under any stock bonus, pension,
               0
                                       annuity, deferred compensation, profit-sharing, or similar plan"). Such funds and
                   ..(     '


                                       such accounts are "exempt from attachment, execution, and seizure for the

                                       satisfaction of debtsft so long as the account Is exempt from immediate federal

                                       income taxation. /d.; sea also Lozano       v. Lozano, 875 S.W.2d 63, 66 (TexApp.-
                                       Houston [141h] 1998}. iRAs have been exempt from the reach of creditors in

                                       Texas, including judgment creditors, since 1987.               See Williams v. Texas

                                       Commerce Bank, 766 S.W.2d 344,346 (Tex.App.- El Paso 1989).

                               27.     The GMS account is, was intended to be, and is set forth by GMS as a tax-
                       (
                                       deferred retirement account, and qualifies for exemption under §42.0021(a). See

                                       Letter from Matthew E. Lipman (counsel for GMS) to County Clerk (Oct. 23,

                                       2014) (Exhibit 2) (describing garnished account as a "DLJ Qualified Retirement

                                       Plan"); sea a/so Summary Plan Description for GMS Group, L.L.C. Salary




                               10
                                  A spreadsheet showing all deposits Into the account since December of 2009 is attached to tills
                               pleading as Exhibit A.




        Confidential information may have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas


A..J.J .o
 -:Q1'-*•~el'1i"HI~Mg~G<-1SS;eMFI'W!&e.em.Raatl-I'IIR-l_ _ _ _ __ Deputy
          ~)
          lil
          0
          t;J                Savings Plan, at p. 3, \{6 (describing employee contributions as 401(k) lax-
          Cl,
                             deferred contributfons). 11
          U"l
          ('J
          u·1       28.      The GMS account, therefore, may not be turned over to                     a creditor,    Including by
          r•·
                             garnishment. See Bergman v. Bergman, 888 S.W.2d 580, 586 (Tex.App. - El
          ,.
          Iii
          C"··'              Paso 1994) (reversing turnover order bec~use account was exempt); accord Nu-
          i\1
          •"                 Way Energy Corp. v. Delp, 205 S.W.3d 667, 679 (Tex.App. -Waco 2006); Kent
          CJ
          u:                 v. Holmes, 139 S.W.3d 120, 131 (Tex.App. - Texarkana 2004); Bargman v.
          0
                            Begman, 888 S.W.2d 580, 586 (Tex.App. - El Paso 1994); Morgan v. Horton,
            -c.             675 S.W.2d 602, 604 (Tex.App. -Dallas 1984). The unanimous voice of the

                            courts results from the clear legislatiVe purpose to "protect the Interests In the

                            retirement fund from creditors and assignees" Kent                    v. Holmes,     139 S.W.3d at

                            131.

                   29.      Like with social security benefits, the exemption for tax-deferred retirement

                            accounts Is read without neither exemptions nor narrowness, to fulfill a state

                            policy favoring debtors that has existed since the nineteenth Century.                            Sea
              c·            Bergman v. Bergman, 888 S.W.2d 580, 586 (Tex.App.- El Paso 1994) id., 888

                            S.W.2d at 585 (''the long standing public policy of Texas has favored debtors

                            over creditors) [cftlng Bell v. Indian Live-stock Co., 11 S.W. 344, 346 (Texas

                            1889)].

                   30.      There can be little doubt that a firm such as GMS, which represents itself as a full

                            service brokerage house, and advises people on planning for their retirement,.

                            presented their employees with anything other than an IRS-quafffled plan for their

                   11 The chart of accounts Included In Mr. Lipman's letter (Exhibit 2 to that letter) Is attached to this pleading
                   as Exhibit C. The Plan Description Is attached to this pleading as Exhibit D.




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



JL,~Ster11ng G Senechal Ill
                                _Q                              Deputy
                   'il'
                  !fl
                   C)
                   C)                      retirement benefrt. See In re Youngblood, 29F.3d 225, 228 (5th Cir. 1994) (tax
                   C1.
                                           treatment of account Is determinative Inquiry under §42.0021); see also /d., 29
                   :fi
                   ~
                   lf'!                    F.3d at 229 f'the legislature Intended for its own state courts ... to defer to the
                   t.::l·



                                          IRS in determining whether a retirement plan Is 'qualified' under the Internal
                   i{i
                   ..
                   r~                     Revenue Code"); Lozano v. Lozano, 975 S.W.2d at 67 ("evidence that an
                   ~~
                   ,,.                    account is an individual retirement annuity is sufficient to establish that it Is
                   (/
                   U'1
                   C)
                                          exempt'). 12

                                 31.      Whffe Mr. Storer has, and can put on evidence showing the tax-exempt nature of
                       ·c·                the GMS account, that exemption Is clear from the facial descriptions of the

                                          account Issued by GMS.              In any event, garnishment has no basis In Texas'

                                          common law, and Is ·purely statutory.                   Consequently, a party claiming an

                                          entitlement to garnishment has to prove that the property he Is after Is subject to

                                          the procedure. See Del-Phi Engfneering Assocfates v. Texas Commerce Bank,

                                          771 S.W.2d 589, 591 (Tex.App. - Beaumont 1989) (Burgess, J., dissenting)

                                          (motion to dissolve writ joins the issue, and then party seeking garnishment must
                            C.            put on proof that they are entitled to the funds).

                                 32.     That burden cannot be met by the Plaintiffs in this cause, as the GMS account Is,

                                          beyond question, a tax-deferred retirement account and beyond the reach of all

                                          credltors. 13




                                 12 Moreover, unlike with social security benefits, it Is the account that Is exempt, the source of the funds Is
                                 Irrelevant See ld., 975 S.W2d at 68.
                                 13 If the burden Is placed on Mr. storer, as the party claiming the exemption, he can easily do so If
                                 permitted an evidentiary hearing with sufficient time to subpoena the needed records.




          Confidential information may have been redacted from the document in compliance with the Public Infor mation Act.


 A Certified Copy
 Attest: 9/29/201 5
 Stan Stanart, County Clerk
 Harris Coun ty, Texas


ftr.44_                                       .Q
 --e.St"'e<Pf1thjnug,..-,G;P.:--Sea-ar...,tecncMt1H•at~-1-HII,t...l_ _ _ __   Deputy
                                                               PRAYER

                             WHEREFORE, PREMISES CONSIDERED, Charles starer, Power of Attorney

                      for Defendant, Charles McAfee, respectfully prays that the Court enters an Order

                      quashing (dissolving) the two Writs of Garnishment Issued In this cause as reaching

                      exempt assets that cannot be garnished, for any reason, and further prays for such

                      other and further relief to which he or Mr. McAfee may be entitled, In law or In equHy.

                                                                Respectfully submitted,

                 ..                                             ANDERSON PFEIFFER, PC
           ..(

                                                                Is/ 'Estfier ..:~.naerson
                                                                By: Esther Anderson
                                                                SBN: 00792332
                                                                845 FM 517 West, Suite 200
                                                                Dickinson, Texas 77539
                                                                Office: 281.488.6535
                                                                Facsimile: 281.614.5205
                                                                Email: esther@probateguardianship.com

                                                                Of counsel on the Pleading:

                                                                Is/ 'Rooert 'leir
                                                               Robert Telr
                                                               Robert Telr, PLLC
                                                               845 FM 517 West, Suite 200
                                                               Dickinson, Texas 77539
                                                               Office: 832.365.1191
                                                               Facsimile: 832.550.2700
                                                               Email: rob@teirlaw.com

                                                               Attorneys for Mr. Charles starer




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



                                                         Deputy
                                                                   CERTIFICATE OF SERVICE




           ,..                 I, Robert Telr, undersigned below, hereby certify that a true and correct copy of
                       the following has been forwarded to all parties and/or counsel of record through our
                       electronic service provider and/or facsimile on this 19th day of November, 2014.
           ,...
           '..)
           N

                                                                                             Is/ :Ro6ert 'I'eir
                                                                                             RobertTeir


             -c.       cc:       Matthew E. Lipman
                                 Faust Oppenheim LLP
                                 488 Madison Avenue                                          Via Electronic Service Provider &
                                 New York, New York 10022                                    Facsimile 212-371-8410

                                 Dean M. Blumrosen, Esq.
                                 4615 Southwest Freeway, Suite 850                           Via Electronic Service Provider &
                                 Houston Texas 77027                                         facsimile 713-524-5570


                                 Defendant Woodforest National Bank                11
                                                                                        .._
                                 G'{ 0..1'1.~ #.~"""~"' -:c-+s l'l11.!3 ist&f"td.. r""5~•
                                  JCLI<-'IL~ '!) • J) re.ib!l.l~(S
                                   '1.5"~5/ ~ \"o o.,..'s 1Vl r 11 \1-t~&...ol
                                                          5
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                                                                                        v;i:fttJ.ttltlAf( 'l f{J~. ~:J, ~tr!y:;;;.ll~q~ /~
                                 Int.       WtxxJ. {e.r..d~, "(f.. 11 3 fO               ·u . .                   , .. . ,.·,. .... . . .




                      N:\Siorer, Chartas\Pialldlnga, MoUons, ApplcaUOOiiWiollon to QlliiSh writ of garnlshmcntdocx




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Harris County, Texas



                                                                         Deputy
                 .•,



          t·-
          U"\                                                                                     PROBATE COURT 1
          (.)
          0                                                          CAUSE NO. 396,935
          Cl.
          li'r                  IN THE ESTATE OF                             §          IN THE PROBATE COURT
          N                                                                  §
          IJ~                   JANET F. McAFEE,                             §          NUMBER ONE
          ,...
                                                                             §
          U"r                   DECEASED                                     §          HARRIS COUNTY, TEXAS
          •"
          ro,
          1.-                               MOTION TO PARTIALLY RELEASE TEMPORARY INJUNCTION
          r·,J
          -·
          0
          ~n
                                       COMES NOW Charles Storer, Power of Attorney for Kenneth McAfee, and Illes

                                this Is Motion to Release Injunction and would show the Court the following.
          0
                       ... ,)          All Exhibits referenced are attached and Incorporated herein by reference as If
                  (        i
                                set out In full for all purposes.

                                                                       BACKGROUND

                                1.     On June 8, 2011, all parties to the above stated cause entered an Agreed Order

                                       for Temporary Injunction. See Exhibit "'1."

                                2.     On January 27, 2015, the Court entered an Order Partially Granting Motion to

                                       Quash Writs of Garnishment as to two accounts:

                                       a.     Woodforest account ending In 404, In the name of Kenneth Cooper

                                              McAfee exclusively holding social security assets of Kenneth Cooper

                                              McAfee; and

                                       b.     GMS account ending In 606, an individual retirement account of Kenneth

                                              McAfee. See Exhibit "2."

                                      The Court further ordered that all other accounts at GMS Group, LLC, holding

                                      assets of Kenneth McAfee be subject to the writs such that Rosemary and Jake

                                      Foltyn recover ·$6,694.39 In account number 55H056008 and $1,661.15 in

                                      account number 55H004628 for a total of $8,355.54 from GMS Group, LLC.,


                                                             MOTION TO PARTIALLY RELEASE INJUNCTION
                                                                           Page 1 of4
                                                                                                      I
                                                                                                      ~
                                                                                                          EXHIBIT
                                                                                                           .e;-     1




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
        - . - - - - - - - - - - - - - - -- - -                 ----




           aJ
           u~                                                 CAUSE NO. 396,935
           l~i
           ()
           c...         IN THE ESTATE OF                              §      IN THE PROBATE COURT
                                                                      §
           ~~           JANET F. McAFEE,                              §      NUMBER ONE
           N                                                          §
           W~l
           ...          DECEASED                                      §      HARRIS COUNTY, TEXAS

           f;                       MOTION TO PARTIALLY RELEASE TEMPORARY INJUNCTION
           ,..
           0                   COMES NOW Charles Storer, Power of Attorney for Kenneth McAfee, and files
           C'J
           ~·
           .::1         this Is Motion to Release Injunction and would show the Court the following.
           u·1
           ()
                               All Exhibits referenced are attached and incorporated herein by reference as if

                  C')   set out In full for all purposes.

                                                                BACKGROUND

                        1.     On June 8, 2011, all parties to the above stated cause entered an Agreed Order

                               for Temporary Injunction. See Exhibit "1."

                        2.     On January 27, 2015, the Court entered an Order Partially Granting Motion to

                               Quash Writs of Garnishment as to two accounts:

                               a.      Woodforest account ending in 404, In the name of Kenneth Cooper

                                       McAfee exclusively holding social security assets of Kenneth Cooper
                  (_J
                                       McAfee; and

                               b.      GMS account ending in 606, an individual retirement account of Kenneth

                                       McAfee. See Exhibit "2."

                               The Court further ordered that all other accounts at GMS Group, LLC, holding

                               assets of Kenneth McAfee be subject' to the writs such that Rosemary and Jake

                               Follyn recover $6,694.39 in account number 55H056008 and $1,661.15 in

                               account number 55H004628 for a total of $8,355.54 from GMS Group, LLC.,


                                                      MOTION TO PARTIALLY RELEASE INJUNCTION
                                                                    Page 1 of 4




      Confidential information may have been redacted from the document in compliance with t he Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas



A,.4.d_
     Stertlng G. Senechal llf
                             .0                             Deputy
           CtJ
           U"i
           CJ                 upon receipt of an order releasing the Agreed Order for Temporary Injunction
           0
           Ct.               which is the subject of this Motion. !d.
           V1         3.      Storer asks the Court to enter an order partially releasing the June 8, 2011
           N
           U'1
            ...
           ~,
                             temporary Injunction as to the following three accounts:

           Ul                a.      Woodforest account ending In 404, In the name of Kenneth Cooper
           ~·
           0
           N                         McAfee exclusively holding social security assets of Kenneth Cooper
           e•
           0                         McAfee, to Kenneth Cooper McAfee;
           111
           0                 b.      account number 55H056008 holding $6,694.39 at GMS Group, LLC, to

                c·)                  Rosemary and Jake Foltyn, c/o Dean M. Blumrosen; and

                             c.      account number 55H004628 holding $1,661.15 at GMS Group, LLC, to

                                     Rosemary and Jake Foltyn, c/o Dean M. Biumrosen.

                      4.     All other accounts and assets described in the June 8, 2011 Agreed Order for

                             Temporary Injunction should remain subject to the temporary Injunction.

                             WHEREFORE PREMISES CONSIDERED, Charles Storer, Power of Attorney for

                      Kenneth McAfee, prays the Court enters an order granting his Motion to Partially

                ~)    Release Temporary Injunction and for such other relief, at law or in equity, as he may

                      be justly entitled.




                                                 MOTION TO PARTIAUY RELEASE INJUNC'TlON
                                                               Page2 ol4




     Confidential informatio n may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
          0
          ({;
                                                            Respectfully submitted,
          0
          c:i
          a.                                                ANDERS0~(.%1ensJ
          f!
          N                                                 By: Esther Anderson
          u1
          ~..                                               SBN: 00792332
                                                            845 FM 517 West, Suite 200
          iii                                               Dickinson, Texas 77539
                                                            Office: 281.488.6535
          0                                                 Facsimile: 281.614.5205
          N
                                                            Email: esther@probateguardianship.com
          C)
          lli
          C>                                                Of counsel on the Pleading:

                c·)                                         /s/1{.ooert 'feir
                                                            RobertTeir
                                                            Robert Teir, PLLC
                                                            845 FM 517 West, Suite 200
                                                            Dickinson, Texas 77539
                                                           Office: 832.365.1191
                                                           Facsimile: 832.550.2700
                                                           Email: rob@probateguardianship.com

                                                           Attorneys for Mr. Charles Storer, Power of
                                                           Attorney for Kenneth McAfee



                '    )
                l ... ·




                                            MOTION TO PARTIALLY RELEASE INJUNCTION
                                                          Page 3 of4




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



                                                Deputy
                 ~·
                 (0
                                                                           CERTIFICATE OF SERVICE
                 ~J
                 ()
                 L\.                    I hereby certify that a true and correct copy of the foregoing has been forwarded
                                to all parties and/or counsel of record through our electronic seryjce provider, certified
                 Ui
                 ~,J            mail, return receipt requested and/or facsimile on this             flv day of February,ID
                 VI
                 ""
                                2015.                                                                         ~ Ond~.;..,____
                 U'l                                                                       Esther Anderson
                 "'
                 (~             cc:      Mary Elizabeth Duff
                 ('-.J                   210 Main Street                                   VIA ELECTRONIC SERVICE PROVIDER &
                                         Richmond, Texas 77469                             FACSIMILE 281-341-5517
                 0
                 Vi
                 Ci                      Matthew E. Lipman
                                         Faust Oppenheim LLP
                         ()              488 Madison Avenue
                                         New York, New York 10022
                                                                                           VIA ELECTRONIC SERVICE PROVIDER &
                                                                                           FACSIMILE 212-371-8410

                                         Dean M. Blumrosen, Esq.
                                         4615 Southwest Freeway
                                         Suite 850                                         VIA ELECTRONIC SERVICE PROVIDER &
                                         Houston Texas 77027                               FACSIMILE 713-524-5570

                                         Woodforest National Bank,
                                         through their registered agent
                                         James D. Dreibelbis
                                         25231 Grogan's Mill Road
                                         Suite 100
                                         The Woodlands, Texas 77380                        VIA CMRRR               'f '/I~ '1\ 00. o:>8& 15Dt( ~IPL/S SI
                       ()                Charles Storer




                               N:\Storer, Char1es\Pieadfngs, Motlona, ApplfcaUons\Mot to Raleau lnjunc:tlon.docx

                                                                      MOllON TO PARTlAlLY RELEASE INJUNCTION
                                                                                    Pago4cf4




        Confidential information may have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas


A_..J.J_                               _Q
 -~St'*"anrrttt.ln.....grlG;o::t--iS~e....n=ect....m\att-1*IUI--- - - - -0 eputy
                                                           CAUSE NO. 396,935

                       IN THE ESTATE OF                          §              IN THE PROBATE COURT
                                                                 §
                       JANET F. McAFEE,                          §              NUMBER 1 OF
                                                                 §
                       DECEASED                                  §              HARRIS COUNlY, TEXAS
            Ui         ·•···················•··•··•·••···••··•··•··········•·························•
            ....                                          CAUSE NO. 396935-401
            0
            N
            0          IN RE                                     §        IN THE PROBATE COURT
            U'i        JANET F. McAFEE,                          §
            0          Deceased                                  §        NUMBER ONE
                                                                 §
               c.      ROSEMARY FOL YN and
                       JAKEFOLYN
                                                                 §
                                                                 §
                                                                 §
                       ~                                         §        OF
                                                                 §
                       THE GMS GROUP, LLC and                    §
                       WOODFOREST NATIONAL BANK,                 §        HARRIS COUNlY, TEXAS
                       Defendants

                            ORDER GRANTING STORER'S MOTION TO RECONSIDER MARCH 16, 2015
                                 ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION
                                                      AND
                                       RELEASING SOCIAL SECURilY PROCEEDS

                              On this day came to be considered the Motion for Reconsideration C?f March 16,
                ··-·   2015 Order Partfa//y Releasing Temporary fn}unc:tfon and Motion for Entry of Order

                       Releasing Social Security Proceeds from Injunction, filed by Charles Storer, Power of

                       Attorney for Kenneth McAfee, and after review and consideration of said Motion, the

                       evidence, the responses filed, and the arguments of counsel, the Court finds the

                       following:

                       1.     On June 8, 2011, all parties to the above stated cause entered an Agreed Order

                              for Temporary Injunction.



                                                                 ORCER
                                                                 PAGE 1
                                                                          I11
                                                                                EXHIBIT   I




      Confidential information may have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas



 ~
 ~=-.:. 4
        .c-~
           ''d~-~
                _Q_Deputy
~lng 0. Scmechallll
          (")
          w
          0         2.    On January 27, 2015, the Court entered an Order Partially Granting Motion to
          0
          C\.
                          Quash Writs of Garnishment as to two accounts:
          U'i
          ~.j             a.     Woodforest account ending In 404, in the name of Kenneth Cooper
          u"l
          e•
                                 McAfee holding social security proceeds of Kenneth Cooper Mc:Afee; and
          ul
          e•              b.     GMS account ending In 606, an Individual retirement account of Kenneth
           ,.
          ,~


          N                      McAfee.
          ~··
          0
          u~
                          The Court also ordered that all other accounts at GMS Group, LLC, holding
          0
                          assets of Kenneth McAfee or for the benefit of Kenneth C. McAfee be subJect to
                I
                \
                          the writs such that Rosemary and Jake Foltyn recover $6,694.39 in account

                          number 55H056008 and $1,661.15 in account number 55H004628 for a total of

                          $8,355.54 from GMS Group, L.l.C., upon receipt of an order releasing the

                          Agreed Order for Temporary Injunction.

                    3.    On March 16, 2015, the Court entered an Order Partially Releasing Temporary

                          Injunction releasing both the non-exempt accounts Plaintiffs and/or the Estate

                          wanted.

                    4.    On Apri115, 2015, Charles Storer filed a Motion for Reconsideration of March 16,

                          2015 Order Partially Releasing Temporary Injunction and Motion for Entry of

                          Order Releasing Social Security Proceeds from Injunction. It is therefore,

                          ORDERED, ADJUDGED AND DECREED that this Order shall be and is a partial

                    release of the June 8, 2011 temporary injunction as to the Woodforest account number

                    XXXXXX3404, In the name of Kenneth Cooper Mc:Afee holding social security benefits

                    of Kenneth Cooper McAfee.




                                                             ORDER
                                                             PAGE2




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas
          ~
          r.O
          (';
          ()
                               All other accounts and assets described in the June 8, 2011 Agreed Order for
          a.         Temporary Injunction remain subject to the Agreed Temporary Injunction.
          ~~
          N
          ...U'l               SIGNED this _ _ _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ _, 2015 .

          U"l
          <""
          0
          N
          Cl                                                                     JUDGE PRESIDING
          ~·I
          0

                (




                     APPROVED AND ENTRY REQUESTED:

                (_   ANDERSON PFEIFFER, PC


                     By: Esther Anderson
                     SBN: 00792332
                     By: Rob Teir, of Counsel
                     SBN: 00797940
                     845 FM 517 West, Suite 200
                     Dickinson, Texas 77539
                     Office: 281-488-6535
                     Facsimile: 281-614-5205
                     Email: esther@probateguardlanship.com
                     Attorneys for Charles Storer, POA for
                     Charles McAfee

                     N:\Storer, Charlas\Orders\order granting reconsJdaraUon.clocx



                                                                                     ORDER
                                                                                     PAGc3




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas




A::ni~                                                              Deputy
       Tab 15
May 14, 2015 Transcript
                                                                          1



 1                TRIAL COURT CAUSE NUMBER 396,835-401
 2   IN RE: THE ESTATE OF             *    IN   THE PROBATE COURT OF
     JANET FOLTYN McAFEE,             *
 3                                    *
   ROSEMARY FOLTYN and                *
 4 Jake Foltyn                        *    HARRIS COUNTY, T E X A S
                                      *
 5 THE GMS GROUP, LLC and             *
   WOODFOREST NATIONAL BANK,          *
 6 Defendants                         *    COURT    NUMBER   ( 1)   ONE
 7

 8        MOTION FOR RECONSIDERATION TO PARTIALLY RELEASE
                FUNDS AND MOTION FOR SANCTIONS HEARING
 9

10
11        Came to be heard on this the 14th day of May, 2015, Motion
12   for Reconsideration to Partially Release Funds and Motion for
13   Sanctions Hearing, in the above-entitled and numbered cause,
14   and all parties appeared in person and/or being represented by
15   Counsel of Record, before the Honorable Loyd Wright, Judge
16   Presiding.
17
18                        VOLUME      OF
19
20                        0 R I G I NA L
21
22
23
24
25
                                                    2


 1            APPEARANCES
 2   ATTORNEY FOR CHARLES STORER:
 3        Robert Teir
          State Bar No. 00797940
 4        845 FM 517, Suite 200
          Dickinson, Texas 77539
 5        Telephone: 831-365-1191
 6   ATTORNEY FOR PLAINTIFFS, ROSEMARY FOLTYN AND
     JAKE FOLTYN:
 7
          Dean Blumrosen
 8        State Bar No. 02517900
          4615 Southwest Freeway, Suite 850
 9        Houston, Texas 77027
          Telephone: 713-524-2225
10
     ATTORNEY FOR THE ESTATE OF
11   ROSEMARY F. McAFEE, DECEASED:
12        Stacey Severovich
          State Bar No. 24088393
13        210 Main St.
          Richmond, Texas 77469
14        Telephone: 281-341-1718
15
16
17
18
19
20
21
22
23
24
25
                                                                          3


 1                   THE COURT:   The McAfee Estate.
 2                   MS. ANDERSON:     Yes, Your Honor.   Good morning,
 3 Judge.
 4                   THE COURT:   Good morning.
 5                   MR. BLUMROSEN:      Good morning, Judge.
 6                   THE COURT:   Good morning.
 7                   MS. SEVEROVICH:      Stacey Severovich, here on
 8   behalf of Rosemary Foltyn, the Administratrix of the Estate.
 9   And that's S-E-V-E-R-0-V-I-C-H.
10                   MS. ANDERSON:     May I proceed, Your Honor?
11                   THE COURT:   Yes.
12                   MS. ANDERSON:     Just to let you know what's
13   coming, there are actually two things that were set today.         One
14   was the Motion for Reconsideration and another was a Motion for
15   Sanctions.   And after having a discussion with Ms. Duff
16   yesterday, I advised her that I would pass the Motion for
17   Sanctions pending further discussions that we are having.
18                   THE COURT:   Okay.
19                   MS. ANDERSON:     So the only thing that's before
20   the Court today is with regard to a Wood Forest Bank account.
21   And I don't know, well, in the Order that the Judge signed at
22   the last hearing you didn't deny our request, you just didn't
23   sign an Order allowing us access to the funds.       So if I can
24   just go through a couple of things, this started with a Writ of
25   Attachment on various bank accounts, primarily the GMS account
                                                                         4


 1   and the Woodforest account.
 2                     Since that time we had a hearing on January 27
 3   of 2015, and the Court entered an Order partially granting a
 4   quash on that.     And in that Order, it specifically addressed
 5   the account that we are here for today, so at the beginning, in
 6   the first paragraph, it states that the Court makes -- finds
 7   the following, and in paragraph 2, the Court found that the
 8   Woodforest account ending in 404, which is one we are talking
 9   about, holds assets in the name or the benefit of Kenneth
10   McAfee.     And then if you go down to the paragraph 5, the Court
11   further found that the Woodforest account ending in 404 holds
12   exclusively Social Security benefit proceeds of Kenneth McAfee,
13   which benefits are exempt from garnishment under 42 USC sec.
14   407, and so the only thing we are before the Court on today is
15   a bank account that includes only Social Security proceeds.
16                     At the hearing on January 27th, we had that
17   discussion.     Everyone saw the bank records and this Court made
18   a finding that that bank account only included Social Security
19   proceeds.     So after that, we got that determined and then we
20   needed to release a Temporary Injunction that's been in place
21   for a very long time, and so I filed a Motion to Partially
22   Release or lift the Temporary Injunction.     I wanted our one
23   Social Security account to be lifted because it's protected.
24   That money will never go toward anything.     And then I asked for
25   two of Plaintiff's accounts to be released.     Rather than having
                                                                          5


 1   two people do the work, I just put it all in one Order.     At the
 2   hearing, and I believe the associate judge was sitting at that
 3   time so she did not have the history that this court had, but
 4   for whatever reason or however it happened, the Court signed an
 5   order lifting the Temporary Injunction as to the two GMS
 6   accounts, which are the ones the Plaintiffs were seeking.       I
 7   believe they have already received their $8,000 but did not
 8   issue an Order lifting the Temporary Injunction on the Social
 9   Security accounts.
10                    Now, in what I have learned from Plaintiff's
11   counsel, Ms. Duff, is that they -- their position is they have
12   a claim to a certain dollar amount, and I'm just going to use
13   the number 38,000 for ease, but it's a 25,000 and a 9,000, so
14   about $38,000.   Their position is that that money came out of a
15   community property account, went into the Social Security
16   account, and so then part of the money in that Social Security
17   account they are entitled to.   What our position is, this Court
18   has already made a finding that the only money in that account
19   is Social Security money.
20                    We are not saying they don't have a claim to the
21   38,000, we are saying that they will never be able to get the
22   38,000 from the money that's in the Social Security account
23   because it's exempt from garnishments, from judgments, from
24   everything, because of federal law.   There is other assets.        It
25   ranges from 600 to a million dollars, depending on which
                                                                          6


 1   Inventory you look at.     But there are other assets that that
 2   money could potentially come from.     This is just not the bank
 3   account it's going to come from.     There are no exceptions to
 4   the rule.     The Court has already made the findings.    It entered
 5   an Order in January.     There was no Motion for New Trial or
 6   Motion for Reconsideration.     It's a done deal.    And so for it
 7   to be attacked now, one, it's improper because it's beyond the
 8   time frame.     It's a collateral attack on this Court's previous
 9   decision and they know, they know that that money is not
10   subject to anything based upon federal law.
11                     I remember at our very first hearing there was a
12   discussion about the circumstance of the case and how bad it
13   was but the Court said, I'm going to follow the law, and that's
14   what I'm asking you to do.     You have you already made the
15   decision.     It's not going to be attached.    It can not be
16   attached unless we don't follow the law.       And the Injunction
17   needs to be lifted.     Once that's done, then there are all of
18   these other accounts which to this date we have tried to give
19   to Plaintiffs.    We can't push it on them, Judge.     They won't
20   take it.    But there are other monies there to address whatever
21   other claims they have.     And so all we want today is the Order
22   that was previously filed.     I printed it out again.    And all it
23   does is lift the Temporary Injunction only the Social Security
24   account.    All of the other accounts, I believe on the last
25   page, it's very clear that that Temporary Injunction continues
                                                                           7


 1   for all of the other accounts that are in place.
 2                     I would also like to say, Judge, aside from
 3   that, this Temporary Injunction that everyone is talking about
 4   and relying on, you know has been going on for a very long time
 5   without a cause of action, without a trial date.      It's
 6   basically an agreement for everyone to have a standstill.       And
 7   that's fine.     We intend to honor it.   But it's time to separate
 8   these parties.     It's time for the Plaintiffs to collect on
 9   their judgment.     Mr. Store, who is the agent under a Power of
10   Attorney for Mr. McAfee, is ready, willing and able to do
11   whatever he needs to do to turn over all of Mr. McAfee's
12   assets.   It's just time for this case to end and to get these
13   parties separated.     There are only two bank accounts at issue
14   that I'm aware of.     One is a Social Security account which
15   should be addressed today and the other is the 401 K plan which
16   are Ms. Duff and I are working on.
17                     THE COURT:   So this account that I did something
18   with in January, it was represented to be all Social Security?
19                     MS. ANDERSON:   Not only was it represented but I
20   had the exhibits here in Court.      Everyone looked at them.   We
21   discussed it and showed you, Judge, that each of the bank
22   statements -- nothing has gone into the account.      I mean, you
23   see the two thousand and something dollars from the Social
24   Security Administration that have come in on a monthly basis
25   and so the bank statements are whatever the dollar amount is
                                                                           8


 1   like $2,000, $2,000, $2,000, $2,000.      It's just very clear and
 2   that fact is never going to change.      I understand he took money
 3   from someplace else and put it in that account but he also
 4                    THE COURT:   That's a problem, isn't it?
 5                    MS. ANDERSON:   It is, but he --
 6                    THE COURT:   The $34,898.58 that seems to be in
 7   question?
 8                    MS. ANDERSON:   Let me finish the story.
 9                    THE COURT:   Okay.
10                    MS. ANDERSON:   He put it in the Social Security
11   account and then he gave it out.      They have a claim for that
12   money.    They had a claim and there are other assets to take it
13   from.    What I'm saying is, it will legally never come out of
14   the Social Security proceeds.     The briefing is done.     I mean,
15   it goes on and on and on from the 30's of the basis why the
16   federal government protects Social Security assets.       I'm not
17   saying it's right, I'm saying that's the law.       I'm saying they
18   have a claim.    It's just they can not be paid by the Social
19   Security proceeds, they need to be paid by some other asset of
20   Mr. McAfee's of which there is a lot of.
21                    THE COURT:   Okay.   So maybe I'm missing some
22   aspects of the history of this case, but if somebody put $10
23   million into this account, would that mean that because it's a
24   Social Security account or it's an account that held Social
25   Security funds that you can't reach the $10 million?
                                                                              9



 1                      MS. ANDERSON:     Absolutely not.   But here is the
 2   difference, if the $10 million is there, you get it.          You just
 3   can't touch any of the Social Security money.          Because he paid
 4   it out, the only thing that was left there, and you can trace
 5   it, I know it doesn't make sense, Judge, but it is all briefed,
 6   if you can trace the Social Security funds, it's the one that's
 7   protected.      That is what our federal government has done.       It's
 8   not my call .
 9                      THE COURT:   Even if it's commingled like this?
10                      MS. ANDERSON:     And it can be traced, yes,
11   absolutely.     And I don't know if the Court has had the
12   opportunity to read the briefing that's done.          All of that is
13   discussed.      It doesn't matter if it was commingled, it could be
14   traced.   In this case we don't even need to trace it.         We
15   looked at the hearing that we already had on this issue and we
16   saw the bank statements that are very clear, page after page,
17   of a monthly Social Security deposit.
18                      And once again, I have to emphasize, no one is
19   saying they don't have a claim to that $34,000.         There are
20   other monies that they can get the 34,000, just like there is
21   other money that they are going to get the $2 million from if
22   they will just take it.
23                      THE COURT:   All right.
24                      MS. SEVEROVICH:    Your Honor, and I'm speaking on
25   behalf of Ms. Duff, she is the one that was at the last
                                                                        10


 1   hearing, and it's her position, and I know we discussed on the
 2   phone yesterday, but in that judgment on January 27th there was
 3   basically the garnishment is     let me back up.
 4                  The January 27th Order went to whether the funds
 5   in those two accounts could be exempt from garnishment or if
 6   they were subject to garnishment.   Now, the Order said that
 7   they were exempt from garnishment in those two accounts.     But
 8   it has always been Ms. Duff's position that just because they
 9   are exempt from garnishment doesn't actually go to the
10   characterization of the property.   You can have community
11   property that is exempt from garnishment.
12                  She has been asking for clear evidence as to
13   tracing where the two deposits, the first one being on April
14   23rd of 2010 for $25,162.66.   It says wire tran.    There was the
15   second deposit on May 4th, 2010, which was for $9,735.92.        It's
16   classified as WT.   We assume that's wire transfer again.    Ms.
17   Duff has been asking for things that trace where those funds
18   came from so that she could adequately determine if they were
19   community property or separate property.     We realize that they
20   are in, quote, a Social Security account, if you will, but that
21   doesn't mean they are Social Security monies, and it is their
22   burden to prove by a clear and convincing evidence that those
23   funds that were two deposits, is the only thing we take issue
24   with, were actually separate property.     And so if they were
25   community property, if they were deposited from some other
                                                                           11


 1   community GMS account or something, then actually the Estate is
 2   entitled to the fifty percent of that amount.        And so that's
 3   why we are just asking that, you know, if this Court wanted to
 4   release the rest of the funds but put those two deposits into
 5   the Registry until we could actually get the documentation that
 6   traces those.     Ms. Duff was under the impression that Mr.
 7   McAfee was not cooperating and he wouldn't give documentation
 8   to trace those, so all we have is the one exhibit which was
 9   attached showing the deposits.
10                     Everything that's in there that says SSDI, or
11   interest, Ms. Duff concedes is fine, that's Social Security.
12   And she realizes those are exempt and those would be his
13   separate property.     But those two deposits that are not labeled
14   the same, they are labeled Wire Transfer or WT, she wanted
15   documentation on where that money came from, because if it's
16   community property, then he doesn't get the full amount.
17                     THE COURT:   What's in the account?    How much is
18   in the account?
19                     MS. ANDERSON:     I believe it is in the 70's or 78
20   or 79, but, Judge --     are you finished?    I just wanted to
21   respond to that directly.
22                     MS. SEVEROVICH:     I believe at the last hearing
23   as far as that judgment, and if I'm speaking out of turn, I
24   apologize, but there was objections made as to the wording and
25   that they weren't actually adjudicating whether or not this was
                                                                        12


 1   community funds or separate property, just whether or not they
 2 could be attacked by judgment creditors.       Correct me if I am
 3 wrong.
 4                  MS. ANDERSON:     And Judge, I will just address
 5   those in the order that they were brought in.     With regard to
 6   the documentation on the account, Ms. Duff has never, never
 7   asked for documentation tracing the account.     What she asked me
 8   to do was to tell her where they came from because she needed
 9   to tell her client something.    Those were her words to me.
10   What they did do was on the Plaintiff's side in the wrongful
11   death case the Plaintiff sent out discovery.     He never filed a
12   Motion to Compel discovery.     He never moved forward on it to
13   take that expense to go to where Mr. McAfee is.     When Mr.
14   Storer came in, we voluntarily did that for him.     Mr. Storer
15   went to see Mr. McAfee.   Mr. Store got all the answers and
16   responded to all of the Requests for Production and
17   interrogatories.   With that though, even if they are asking for
18   documentation, these are the hoops we have had to jump through.
19   They say they want a tracing on where it came from, yet if you
20   look at the Plaintiff's Original Inventory, she herself tells
21   me where it came from.    I mean, in her Inventory she says on
22   5/4, 2010, from GMS account 612, ninety-seven thirty-five
23   ninety-two was transferred to Woodforest 404.     On 4/23, 2010,
24   GMS, Account No. 914, twenty-five thousand was transferred to
25   Woodforest.
                                                                             13


 1        A.      They know this.   They have it.     They put it in their
 2   Inventory.    There is no reason to trace.       We have never said
 3   the GMS account is not a community property asset.            We know
 4   fifty percent of it is theirs.         I will even say that of the 35
 5   or $38,000, it's community property, half of it is theirs.
 6   Take the half.     We can't give it to them, Judge.         They have not
 7   moved one step toward collecting any of the assets from all of
 8   the other assets that are out there but what they will do is
 9   cause Mr. Storer to use his own money to come down here,
10   hearing after hearing, to argue about the same thing that this
11   Court already decided on January 27th.         We did it.     That is not
12   -- the paperwork that she showed you is not the only thing that
13   was attached to the motion.       Attached to the motion were the
14   bank statements from the bank.         And so I don't know what else
15   can be shown other than a whole bunch of papers that say $2,000
16   a month, the total is X amount of dollars, it's all Social
17   Security funds.
18                     THE COURT:   Okay.
19                     MS. ANDERSON:    And I believe I have handed you
20   the Order.
21                     THE COURT:   Well, maybe I'm getting confused.
22   Are you saying that out of the 70 or $80,000 account they can
23   have the thirty-four eight ninety-eight?
24                     MS. ANDERSON:    No.    I'm saying that that
25   thirty-four thousand was community property, and if it was
                                                                            14


 1   community property, then one-half is his and one-half is hers.
 2   So whatever half of
 3                     THE COURT:     And then one-half is subject to the
 4   judgment, which if his is subject to the judgment which would
 5   make it all hers.
 6                     MS. ANDERSON:     Except that it comes from
 7   someplace else, not the Social Security.        Judge, that's one
 8   account.   If you will look at the Temporary Injunction, it's
 9   pages of accounts here.        There are so many accounts the
10   judgment is going to be met, and they need to let go of this
11   one that the government has protected and start separating
12   these people.     There are only two accounts tying them together
13   and if why is it that since, I don't know, I've been in the
14   case since November or December trying to push it to them, I
15   can't get them to take a penny.
16                     MS. SEVEROVICH:     We are not saying Ms. Duff has
17   expressed this.     We are not saying out of the $70-80,000,
18   whatever is actually traced to be his Social Security proceeds,
19   she agrees, that's his separate property, he can have it.           Now,
20   if they are saying that the approximately 35 thousand dollars
21   came from other sources are which are not Social Security funds
22   which are community property, that's why we are saying to put
23   that thirty-five in the Registry of the Court.       We would agree
24   to release the rest of it that is Social Security funds.        But
25   the thirty-five thousand is not Social Security.
                                                                         15


 1                   MS. ANDERSON:     But Judge, that decision has
 2   already been made.     How many times -- we are arguing about it
 3   right now.
 4                   THE COURT:    Is that in paragraph five where I
 5   said it is exclusively --
 6                   MS. ANDERSON:     Okay, No. 2 holds assets in the
 7   name of Kenneth.     No. 5, the Wood Forest account, 404, that's
 8   the one we are talking about, holds exclusively Social Security
 9   benefit proceeds of Kenneth McAfee.
10                   MS. SEVEROVICH:     Which are exempt from
11   garnishment but that doesn't meaning whether there are
12   community or separate property funds in there.
13                   MS. ANDERSON:     It doesn't matter, they are
14   Social Security.
15                   THE COURT:    I think that's probably an interim
16   order.   Here is -- let me tell you the bottom line, if I did
17   something wrong that I can fix I'm going to fix it.      The fact
18   that I said something is exclusively, I think that's what you
19   are arguing, that I made a finding that's erroneous and you
20   know it's erroneous
21                   MS. ANDERSON:     No, sir.
22                  THE COURT:    Why isn't it erroneous when this 35
23   thousand seems to be non-retirement benefits that
24                   MS. ANDERSON:     Let me draw you a picture.
25                  THE COURT:     Do it like I'm a six-year-old.
                                                                           16


 1                     MS. ANDERSON:     I'm very visual.
 2                     THE COURT:     That's from the movie Philadelphia.
 3                     MS. ANDERSON:     So this is a 35K and we have got
 4 a Social Security pot with Social Security of let's just say
 5   fifty, okay?
 6                     THE COURT:     All right.
 7                     MS. ANDERSON:     Social Security goes in here.
 8   Fifty came in here by two, two, two, two, each month, that
 9   totals up to fifty.     As soon as it went in here, days before
10   her death, it went out.        That's the money that he gave his
11   ex-wife and his son.     The bank statements that you looked at
12   were all of these two that total fifty.        It is that simple.
13   This was, and hold on just a second, I mean, we are talking
14   about days.
15                     THE COURT:     There was sort of a brief
16   commingling but the tracing, from your point of view would be,
17   thirty-five comes in and goes out within a short period of
18   time.
19                     MS. ANDERSON:     Immediately.   She died on May
20   8th, 2010.
21                     THE COURT:     Okay.
22                     MS. Anderson:     This deposit was May 4th, 2010,
23   that's nine thousand.     It went into Woodforest.      He gave it to
24   the son.     This one came out of GMS 423, two weeks or so before
25   she died, twenty-five thousand, it went out and was paid to his
                                                                            17


 1 wife.      That money is gone.     Yes, it was commingled but it is
 2   clearly traceable.     They know he paid it to the wife and son
 3   because that's been one of the --
 4                    THE COURT:    Same amounts in and out?
 5                    MS. ANDERSON:     The exact amounts.    I mean, it
 6   may have been twenty-five thousand instead of twenty-five one
 7   six six, I don't recall, but that was the claim that was
 8   potentially, do we go after your ex-wife and the son?         We are
 9   saying, no, we owe it to you.       It goes over here.    But it
10   doesn't come out of this bank account.         This bank account is
11   Social Security.     And Judge, you didn't make a mistake and I'm
12   not BSing you.     These are plain-Jane bank statements.      We have
13   already done this on January 27th and every time we come back
14   it's the same thing.     It's the same thing.      And I know that Ms.
15   Duff and I understand what the truth is and that that money is
16   available from other funds.       I also know that they can't agree
17   to anything on behalf of their client.
18                    MR. BLUMROSEN:     May I respond, Judge?
19                    THE COURT:    Yes, briefly.     Or, you know, go
20   ahead.
21                    MR. BLUMROSEN:     I will be -- I promise you, I'm
22   not happy that I'm here.
23                    THE COURT:    I understand.
24                    MR. BLUMROSEN:    As you know, I represent the
25   Plaintiffs in a wrongful death matter.         I was served with her
                                                                           18


 1   Motion for Sanctions and her Motion for Sanctions for the first
 2   time that I have ever heard this morning I was never notified
 3   that she wasn't going forward on it, so that's why I'm here,
 4   she never notified me.
 5                   THE COURT:    Okay.
 6                   MR. BLUMROSEN:       But, as you know, Judge, I filed
 7   a Response and I also filed a Counter-Motion for Sanctions for
 8   her to file her Motion for Sanctions, which addresses actions
 9   that my clients have taken, that they knowingly filed improper
10   writs of garnishment.    That's number one.      And number two, that
11   they attempted to collect assets they knew to be exempt under
12   the law.
13                   MS. ANDERSON:       Are we going into my Motion for
14   Sanctions and his Response?
15                   THE COURT:    No.
16                   MS. ANDERSON:       Thank you.
17                   THE COURT:    We are going to do that some other
18   week.
19                   MR. BLUMROSEN:       All I'm saying is, Judge, I
20   wrote her a letter asking her to withdraw that.        She didn't.
21   She is complaining about Mr. Store having to come down here for
22   his money.   She has made me to come down here to defend my
23   client's actions, put something in writing that there is no
24   basis for.   I have responded to that and I have indicated that
25   we want sanctions for her doing that.
                                                                          19


 1                    The other thing I would like the Court to know
 2   and I want the record to be very clear, she represented to the
 3 Court that we haven't done anything to try and collect, we
 4   never filed a Motion to Compel.      As you are very well aware,
 5   you signed an Order compelling Mr. McAfee to respond, so that
 6   statement is simply not true.
 7                    Number two, nobody has ever offered me one
 8   penny, not one dime.     I promise you, we will take it.    We have
 9   a $2 million judgment.     I've been working on this case for five
10   years.   The representation that she is making to you that she
11   is offering us money and we won't take it, is simply not true.
12   If you want to offer me -- any money she wants to offer me that
13   Mr. McAfee has, we will take it right now.      So that's just
14   simply not true.     I'm not coming down here for fun.     I'm not
15   coming down here because we enjoy having hearings, I'm down
16   here because she wanted my client to be sanctioned.
17                    MS. ANDERSON:   Judge, you were here at all of
18   our hearings.    Have you heard me spout and rattle off how we
19   can't give them money?     We have had that conversation often.
20   And I want to say that Mr. Blumrosen did not ask me for
21   anything, he told me what to do this week.      And as a courtesy
22   to Ms. Duff, who is his co-counsel, who I spoke with yesterday,
23   I told her that I would consider passing the hearing.       I
24   considered it.     I will pass it.   And if need be, I will amend
25   it and include the other account that the writ was issued on
                                                                          20


 1   that shouldn't have been issued.      But I would really prefer to
 2   just visit with Ms. Duff to continue our discussions and see if
 3   everything can be worked out.
 4                   MR. BLUMROSEN:     Just to clarify, Judge, I don't
 5   represent the Estate.    I'm not on the Estate case.    If there is
 6   anything to do with the Temporary Injunction, things of that
 7   nature, that doesn't address the wrongful death, so I am Ms.
 8   Duff's co-counsel only to the extent that we represent the same
 9   parties, Ms. Foltyn.    But I am not co-counsel on the Estate
10   matter, I'm only counsel of record along with Ms. Kelly Zeigler
11   on the wrongful death action.     And I will state again on the
12   record, they have not ever offered us anything at any point in
13   time.   And believe me, I will be sending a letter out today,
14   please let me know what you would like to offer us, we will be
15   glad to accept it.
16                   MS. ANDERSON:    And Judge, those things have been
17   done.   These people work together, Ms. Duff and Mr. Blumrosen,
18   they have the same client.      I'm talking to multiple attorneys.
19   And even yesterday, I told Ms. Stacey, I really don't want to
20   talk with you, I need to talk with Ms. Duff, because it is too
21   many different opinions, versions, thoughts of what is going
22   on, so I'm trying to keep it centralized to one.
23                   The bottom line is, if Plaintiffs would file
24   something with the Court that it's just an Order, that all of
25   these assets that are Mr. McAfee's go to the Plaintiffs, we
                                                                            21


 1 will sign off on it.       It's that simple.     And that hasn't been
 2   done since the date of the judgment.        It hasn't been done since
 3   I came into the case in November.        It hasn't been done to date.
 4   Instead, there is just this list of assets he's, you know,
 5   keeping it from them.     And we are not.    We are ready to give it
 6   to them.     They need to just take it.
 7                     THE COURT:   I mean, I don't think it's my job to
 8   prepare the documents for this.       What can I do to get y'all to
 9   sit down and see if these representations are real and get this
10   over with?
11                     MS. SEVEROVICH:    We will take the 35.   I'm
12   kidding.
13                     THE COURT:   Would a mediation --
14                     MS. ANDERSON:     I think part of the deal is
15   bringing at least Ms. Duff and I together.        I know she is a
16   very busy person, you know, I mean, I can only count on someone
17   so much, so -- we are just not able to get on the same
18   schedule.     But I really do think that if we got together it
19   would happen.     I don't even think it needs to be a mediation.
20                     MR. BLUMROSEN:    On the wrongful death side we
21   will take anything she wants to offer, we will take it.           I will
22   make that representation.      This matter has been done on a
23   contingency basis.     Anything she wants to offer to help satisfy
24   the $2 million judgment, we will take it.        I'm not saying it
25   will extinguish the $2 million judgment.       We will take whatever
                                                                            22


 1   he has.     I will represent that to the Court right now.      We
 2   haven't been offered anything.
 3                     MS. ANDERSON:     And we want the credit for it
 4   because it will pay the entire $2 million judgment.
 5                     MR. BLUMROSEN:     Certainly get the credit for it.
 6                     MS. ANDERSON:     But I've been dealing with Ms.
 7   Duff because she is the one who has the Inventory.         I have no
 8   idea      I don't know what this wrongful death stuff is, all I
 9   know is he has got a judgment.        Okay?   Well, where is the money
10   coming from if not from Mr. McAfee who is addressed in the
11   Estate Inventory.     If he doesn't represent -- but that's why
12   I'm dealing with her.
13                     THE COURT:     Mr. McAfee, let me, and then I have
14   got to move on, but so you have this issue of what should be in
15   her Estate, correct?
16                     MS. ANDERSON:     We --
17                     MS. SEVEROVICH:     Right, we are still figuring
18   that out.
19                     THE COURT:     And that's her property, however
20   that works out.     And then you have what's left is Mr. McAfee's
21   property, which some of it is exempt and some is not, and
22   whatever is nonexempt, up to $2 million, should go to satisfy
23   the judgment.
24                     MS. ANDERSON:     And that's what we are trying to
25   do.    It's two accounts.      It's Social Security of about seventy
                                                                           23


 1   thousand and the 401 which Ms. Duff and I are discussing right
 2   now.
 3                    THE COURT:   Which has what?
 4                    MS. ANDERSON:     Well, it's really a little more
 5   complicated.
 6                    THE COURT:   Well, what's in it?     How much money?
 7                    MS. ANDERSON:     About two hundred thousand.
 8                    THE COURT:   So how are we satisfying a $2
 9   million judgment?
10                    MS. ANDERSON:     Because there is about a million
11   in her Estate, which means there is a million in his Estate on
12   the Inventory.
13                    THE COURT:   Okay.
14                    MS. ANDERSON:     That's only her half.   And there
15   was a piece of real property that we say was valued between
16   eight hundred thousand and nine hundred thousand, and under
17   common law he gets a credit for that.        She is claiming it's all
18   theirs, and that's fine, we want her to have it, but he needs
19   his credit for it because it was his separate property.
20                    MS. SEVEROVICH:      That's a whole nother ball of
21   wax.
22                    MS. ANDERSON:     Yeah.   But they get everything,
23   Judge.    We are not trying to keep anything except what is
24   exempt.
25                    THE COURT:   Okay.
                                                                              24


 1                     MS. ANDERS:     They get one hundred percent of all
 2   of his assets except for what is exempt.
 3                     THE COURT:    All right, I will look at it.        I
 4   mean, you're basically saying that we have left is unclear as
 5   to the release of those funds that you think he is entitled to.
 6                     MS. ANDERSON:     One account.     That's what the
 7 Order says.       That one account, 404.     It's not subject to
 8   anything.     And, you know, what does garnishment go with?
 9   Garnishment with a judgment.        So even if they get a judgment,
10   they will never be able to touch those funds.           They need to get
11   it from someplace else.
12                     THE COURT:    And you're saying that you would
13   agree to something that puts funds in issue and, from your
14   perspective, into the Registry and releases everything else to
15   her client?
16                     MS. SEVEROVICH:     Correct.     As Ms. Duff has
17   always said, anything that was Social Security, fine, we will
18   release that.     But those two deposits Ms. Duff has issues with
19   as to their characterization, that's why we wanted that in the
20   Registry.
21                     THE COURT:    So that would be in the Registry
22   while that actually --
23                     MS. SEVEROVICH:     Is sorted out.
24                     THE COURT:    -- is figured out.      It could
25   actually go to either side ultimately.
                                                                            25


 1                     MS. ANDERSON:     But, Judge, I think we need to be
 2   careful because their characterization, meaning was it separate
 3   or community.     That has nothing to do with regard to, it's in
 4   the Social Security account which is protected.         We are saying
 5   it's community.
 6                     THE COURT:   I see what you are saying.     I
 7   understand.     You are saying it went out at or about the time
 8   that it went in or shortly after, and therefore that 35
 9   thousand isn't even an issue from your perspective, that
10   everything that's left in there is protected under the Social
11   Security.
12                     MS. ANDERSON:     Right.   And if you look back at
13   the motions that were filed, the briefing that was done before
14   the January hearing, all of those are attached, all bank
15   statements.     I mean, I'm not particularly thrilled about this
16   case.    I have always been straight with the Court and I'm never
17   going to try and mislead you in any way.        The paperwork is
18   there.   We have already gone through this.       And I believe that
19   even if the Court did take thirty out, thirty-eight, and put it
20   in the Registry of the Court, that you would be violating
21   federal law.    And I know that's not anyone's intent.      So I
22   understand that the dispute is over characterization.
23   Characterization has to do with is it separate or is it
24   community.     No one says that the money in the bank account is
25   not Social Security money.        No one says that.
                                                                           26


 1                     THE COURT:     Well, I could also, if I knew the
 2   balance, I could also allow the account to remain frozen as to
 3   thirty-four thousand eight ninety-eight fifty-eight with the
 4   understanding that there would still be this issue of who is
 5   entitled to it.
 6                     MS. ANDERSON:     Here is the deal, Judge, I mean,
 7   this man is being punished.        We know that.   He did a bad thing.
 8 A horrible thing.       All right?     Where it -- you are talking
 9   about more hearings over $38,000 when there is so much money
10   over here --
11                     THE COURT:     Well then y'all -- that's what I'm
12   asking, what's the mechanism for y'all to actually sit down and
13   be forced to sort of work through this and
14                     MS. ANDERSON:     But there is nothing to negotiate
15   on the one account.     If I do anything contrary, then I'm going
16   against federal law.     Okay?     So the only one that's left to
17   negotiate on is the 401K plan which is what we are negotiating
18   on.   If they want to tag that at that thirty-eight something,
19   but they haven't come up with it and I can't do both sides of
20   this case.
21                     THE COURT:     Okay.   All right, let me look at it
22   and I will let y'all know something by Monday.
23                     MR. BLUMROSEN:     Just one point briefly, Judge,
24   on the last point since, for her benefit, she wasn't here at
25   the January hearing, I agreed that that account was not subject
                                                                          27


 1   to garnishment.     We did not agree with her language in the
 2   Order for this very
 3                     THE COURT:   Oh, I remember that nuance about all
 4   this, that there was a concern that this would be used to
 5   release, and that's where we are.
 6                     MS. ANDERSON:    No, it is not.     We had a January
 7   27th hearing.     It is the hearing afterward that there was an
 8   issue over the Orders and at the hearing afterwards is the
 9   hearing that you signed their Order on, and he is nodding his
10   head yes, so it is not the January 27th.
11                     MR. BLUMROSEN:    That's correct.     But I'm talking
12   about the Order that she is showing you saying that it is
13   exclusively, when you signed that we had objected to it because
14   we thought that it was -- the language was unnecessary for that
15   Order and we agreed that that account, the Social Security
16   account that was designated, was not subject to garnishment.
17   We agreed with that.     We thought her language in her Order gave
18   it more protection than it needed because I said I don't
19   represent the Estate and the Estate may or may not have claims
20   against it.     But that Order was placed in front of you by her
21   and that was her Order and her language that we did not want
22   the Court to sign but the Court did sign it.
23                     MS. ANDERSON:    And we were all here.     It wasn't
24   like it was just you and me talking in secret.
25                     THE COURT:   No, I understand.
                                                                     28


 1
 2              MS. ANDERSON:     All right, thank you, Judge.
 3              THE COURT:   Thank you.
 4              MS. SEVEROVICH:      Thank you, Judge.   May we be
 5   excused?
 6              THE COURT:   Yes .
 7
 8
 9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
                                                                    29


 1                       C E RT I F I CAT E
 2   COUNTY    OF   HARRIS   *
     STATE    OF     TEXAS   *
 3
           I, Donald G. Pylant, Official Court Reporter in and for
 4   Probate Court No. 1 of Harris County, State of Texas, do hereby
     certify that the above and foregoing contains a true and
 5   correct transcription of all portions of evidence and other
     proceedings requested in writing by counsel for the parties to
 6   be included in this volume of the Reporter's Record, in the
     above-styled and numbered cause, all of which occurred in open
 7   court or in chambers and were reported by me.
                      I further certify that this Reporter's Record
 8   truly and correctly reflects the exhibits, if any, admitted,
     tendered in an offer of proof or offered into evidence by the
 9   respective parties.
                      I further certify that the total cost for the
10   preparation of this Reporter's Record is $203.00     and will be
     paid by Esther Anderson
11
          Given under my hand and seal of office this the   5th   day
12   of   August , 2015.
13
14
                                    Is/Donald G. Pylant
15                                  Donald G. Pylant, C.S.R.
                                    Official Court Reporter
16                                  in and for the County of
                                    Harris and the State of
17                                        T E X A S.

18   Certification No. 668   Exp. Date: 12-31-2016
     Probate Court No. One 201 Caroline Street, 6th fl.
19   Houston, Texas 77002 (713) 368-6692
20
21
22
23
24

25
         Tab 16
Inventory, Appraisement and
       List of Claims
                                                                                            'PROBATE COURT 1
                                                     No. 396,935
             {)97895
         IN THE ESTATE OF                                  §     IN THE PROBATE COURT
                                                           §
         JANET FOLTYN MCAFEE,                              §     N0.1
                                                           §
         DECEASED                                          §     HARRIS COUNTY, TEXAS


                          INVENTORY, APPRAISEMENT AND LIST OF CLAIMS
                                               -.·

                                            Date of Death: May 8, 2010

                The following is a full, true, and complete Inventory and Appraisement of all real property

        situated in the State of Texas and of all personal property wherever situated, together with a List of

        Claims due and owing to this Estate as of the date of death, which have come to the possession or

        knowledge ofthe undersigned.

                                      INVENTORY AND APPRAISEMENT

        COMMUNITY PROPERTY                                                                             VALUE

        1.      CASH IN BANKS:

                Account #I
                Institution: The OMS Group, LLC
                Account type: Brokerage Account
                Account/CD No: xxx- xxx612
                Total value of asset: $0 "'
                Less surviving spouse share: $<0.00>                                                      $0.00
                Co-owners: None
                Decedent's intere.st: 50%

                *Note that (1) on April 23, 2010 Kenneth McAfee made a $1,700.00 distribution to an
                unknown account; and(2) on May 4, 2010, Kenneth McAfee transferred $9,760.92, entire
                remaining balance, to the Woodforest National Bank Account listed below.

                Account #2
                Institution: The OMS Group, LLC
                Account type: Brokerage Account
                Account/CD No: xxx- xxx628
                Total value of asset: $53,749.42 *




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



                                               Deputy
                                                                        ..


                      Less surviving spouse share: $<26,874.71>                                        $26,874.71
                      Co-owners: None
                      Decedent's interest: 50%

                      *Note, on (1) May 13, 2010, Kenneth McAfee sent an authorization to GMS to transfer
                      balances of his accounts into Gerald Fry's JOLTA' at Bank of America, Account number
                      002663331329; and (2) on May 20, 2010 Kenneth McAfee wired the remaining balance,
                      $51 ,462.06, into Gerald Fry's IOLT A at Bank of America BOA acct no. 002663331329; wire
                      no. 026009593

                      Account #3
                      Institution: The GMS Group, LLC
                      Account type: Salary Savings Plan 401K
                      Account/CD No: xxx - xxx606
                      Total value of asset: $425,034.70 *
                      Less surviving spouse share: $<212,517.35>                                      $212,517.35
                      Co-owners: None
                      Decedent's interest: 50% ·

                      * Note on May 25, 2010, Kenneth McAfee withdrew $200,000 and was sent to an unknown
                      location. GMS withheld $40,000.00 for taxes.

                      Account #4
                      Institution: The GMS Group, LLC
                      Account type: Brokerage Account
                      Account/CD No: xxx- xxx914
                      Total value of asset: $0 *
                      Less surviving spouse share: $<0.00>                                                    $0.00
                      Co-owners: None
                      Decedent's interest: 50%

                      *Note on April23, 2010, Kenneth McAfee wire transferred balance, $25,187.66, to account
                      at WoodForest National Bank, described below

                      Account #5
                      Institution: The GMS Group, LLC
                      Account type: Brokerage Account
                      Account/CO No: xxx - xxx008
                      Total value of asset: $6,772.52
                      Less surviving spouse share: $<3,386.26>                                           $3,386.26
                      Co-owners: None
                      Decedent's interest: 50%




       Confide ntial information may have been redacted from the document in compliance with the Public I nformation Act.


A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Harris County, T exas


AA~
--oSt~Ar~il:AAGQ-{:G.~Se~fi:Aeetelhf'\ia'\l-l-1111h-
                                                  i _ _ _ __   Deputy
                Account #6
                Institution: Woodforest National Bank
                Account type: Multiparty checking with Right of Survivorship (Kenneth McAfee and
                Brenda McAfee, Kenneth's first wife)
                Account/CO No: xxxxxxx404
                Total value of asset: $3 8,256.91 *
                Less surviving spouse share:· $<15,605.71>                                     $22,651.20.
                Co-owners: Brenda McAfee and Kenneth McAfee
                Decedent's interest: 25% of balance, plus 50% interest in the amounts that were transferred
                from the OMS accounts shortly before Janet Foltyn McAfee's death, as set forth below in
                points (1) and (2).

                 *Note, (1) on April 23, 2010, Kenneth McAfee transfers $25,162.66 (from OMS xxx-
                 xxx914) into this account; (2) on May 4, 2010, Kenneth McAfee transfers $9,735.92 (from
               . GMS xxx-xxx612) into this account; (3) on July 1, 2010 Kenneth McAfee issues $10,000.00
                 check from this account to Michael McAfee; (4) on July 2, 2010, Kenneth McAfee issues
                 $15,000.00 check from this account to Brenda McAfee; (5) n July 2, 2010, Kenneth McAfee
                 issues $6,000.00 check from this account to IRS for 2008 taxes; (6) on November 29,2010,
 /               Brenda McAfee issues $19,024.63 c}leck to McDavid Honda. ·

                Decedent's share of Account #6 above is calculated as follows:

                 Funds transferred from OMS that Decedent claims a 50% interest in: $17, 449.29
                        $25,162.66/2 = $12,581.33
                        $9,735.92/2 = $4,867.96

                         $9,735.92 + $4,867.96 = $17, 449.29

                 Remaining funds in Woodforest that Decedent claims sa 25% interest in: $5,201.91
                       $38,256.91 (-) $17, 449.29 = $20,807.62
                       $20,807.62/4 = $5,201.91

                 Total interest Decedent claims: $22,651.20
                         $17, 449.29 + $5,201.91:;; $22,651.20


                 Account #7
                 Institution: Wells Fargo National Bank
                 Account type: Checking
                 Account/CI) No: xxxxxx 184
                 Total value of asset: $589.76
                 Less surviving spouse share:· $<294.88>                                                 $294.88
                 Co-owners: Kenneth McAfee
                 Decedent's interest: 50%




      Confidential information may have been redacted from the document in compliance with the Public Information Act.


 A Certified Copy
 Attest: 9/29/2015
 Stan Stanart, County Clerk
 Harris County, Texas


A_A4___a
     $1enmg Go Senechal II!
                                                Deputy
        2.      MOTOR VEHICLES:

                Vehicle #1
                Description: 2006 Mazda Miata (MX-5)
                YIN #: xxxxxxxxxxxxxx539
                Total Value: $12,830.00
                Less surviving spouse share: $<6,415 .00>                                            $6,415.00
                Co-owners: None
                Decedent's interest: 50%


                Vehicle #2
                Description: 1959 Mercedes Model 190, 4 door
                YIN #: xxxxxxx51 0
                Total Value: $5,050.00                                                               $2,525.00
                Co-owners: None
                Decedent's interest: 50%

                Vehicle #3
                Description: 2007 or 2008 Suzuki Motorcycle
                YIN#: xxxxxxxxxxxxxx547
                Total Value: $4,490.00
                Less surviving spouse share: $<2,245.'00>                                            $2,245.00
                Co-owners: None
                Decedent's interest: 50%

        3.      INSURANCE:

                Policy #1
                Insurer: unknown at this time
                Policy No.: unknown
                Total Value: $unknown                                                                        $0
                Co-owners: None
                Decedent's interest: 50% ofpremium payments

             4. HOUSEHOLD FURNISHINGS:
                       Household furniture and furnishings                      $14,000.00
                Total Value: $14,000 .
                Less surviving spouse share: $<7 ,000.00>                                                $7,000
                Co-owners: . Kenneth McAfee
                Decedent's interest: 50%




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



AAd.~
    Sterling G Senechal Ill
                                               Deputy
        TOTAL COMMUNlTY PROPERTY

        SEPARATE PROPERTY                                                                              VALUE

        1.          REAL PROPERTY:

                    Parcel #1
                    LEGAL DESCRlPTION:
                    Lot 12 Block 16 of South Hampton Place, a subdivision in Harris County, Texas according to
                    the map or plat thereof, recorded in Vol. 6, Page 52 of the Map Records of Harris County,
                    Texas, commonly known as 2119 Tangley Street, Houston, Texas Harris County
                    Total Value: $537,701.00 •                                                   $423,454.10
                    Less remaining Chase Bank mortgage balance: ($114,246.90)
                    Co-owners: None
                    Decedent's interest: 100%

                    *Note that Kenneth McAfee gifted his interest in the property to Janet Foltyn McAfee via
                    gift deed on July 11, 2008, making it her separate property.

                    Parcel #2
                    LEGAL DESCRIPTION:
                    Ten (1 0) acre tract of! and situated in Matagorda County, Texas in the G .J Williams League,
                    Abstract No. 103, being a portion of Lot No. 55 of the Elmaton Fanns Subdivision, and
                    being out of the Southwest comer thereof, the map of said subdivision being recorded in the
                    County Clerk's Office in Matagorda County, Texas, and said Lot. No. 55 being conveyed by
                    B.W. Trul et ux to E.E. Adamcik by deed dated February 9, 1932, recorded in Vol. 94, Page
                    211 of the Matagorda County Deed Records
                    Total Value: $13,750.00                                                            $13,750.00
                    Co-owners: None
                    Decedent's interest: 100%


                    Parcel #3
                    LEGAL DESCRIPTION:
                    Mineral Interest under the 10 acres in Matagorda county listed above in the Saba-Peterson
                    GUW3.
                    Total Value: $5,784.28                                                         $5,784.28
                    Co-owners: None
                    Decedent's interest: 100%

               2.       HOUSEHOLD FURNISHINGS:
                          Artwork                                                        $17,900.00
                          Electronics                                                    $1,850.00
                          Jewelry                                                        $5,000.00




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



A;_ AL-a
    Sterling   G S8ri8Challlt
                                                  Deputy
                              Firearms - .25 cal pistol                                         $300.00
                              Mise items                                                        $3,500.00
                       Total Value: $28,550.00                                                              $28,550.00
                       Co-owners: None
                       Decedent's interest: 100%

               3.      MOTOR VEHICLES:

                       Vehicle #1
                       Description: 2006 Hummer H3 (4x4)
                       YIN #: xxxxxxxxxxxxxx 109
                       Total.Yalue: $18,100.00                                                              $18,100.00
                       Co-owners: None
                       Decedent's interest: 100%

                       Vehicle #2
                       Description: 2007 Honda Shadow Motorcycle
                       YIN #: xxxxxxxxxxxxxx977

 ~'
                       Total Value: $3,495.00                                                                 $3,495.00
 ~:~                   Co-owners: None
 ~~                    Decedent's interest: 100%
·~
.·I            4..     CASH IN BANKS:
 0
 ~                     Account #1
 l                     Institution: The GMS Group, LLC
 N                     Account type: Brokerage Account
 ~                     Account/CD No: xxx- xxx479
 Q\                    Total Value: $ 3,440.02                                                                $3,440.02
                       Co-owners: None
                       Decedent's interest: 100%


                       Account #2
                       Instit~tion:The OMS Group, LLC
                       Account type: Brokerage Account
                       Account/CO No: xxx - xxxO 12
                       Total Value: $36,420.66                                                              $36,420.66
                       Co-owners: None
                       Decedent's interest: I 00%

                       Account #3
                       Institution: The OMS Group, LLC
                       Account type: Brokerage Account
                       Account/CD No: xxx - xxxx28




             Confidential information may have been redacted from the document in compliance with the Public Information Act.


        A Certified Copy
        Attest: 9/29/2015
        Stan Stanart, County Clerk
        Harris County, T exas



       AA4____.o
            Sterling GO Senedlallll
                                                       Deputy
                 Total Value: $0                                                                                                           $0
                 Co-owners: None
                 Decedent's interest: 100%


         5.      SECURITIES: .

                 Security #1
                 Description: Devon Energy Corp., ENV # xxxxx Ill, 1984.75 shares
                 Total Value: On May 8, 2010 valued at $64.58/share                                                          $128,175. 16
                 Co-owners: None
                 Decedent's interest: 100%

         TOTAL SEPARATE PROPERTY                                                                                             $661,169.22

                                       LIST OF CLAIMS OWED TO ESTATE

                 No claims are due and owing to the Estate of Janet Foltyn McAfee, Deceased.

                                              TOTAL VALUE OF ESTATE

                 The total value of the Estate of Janet Foltyn McAfee, Deceased is $945,078.62.

                 The Independent Administratrix asks the Court that foregoing Inventory, Appraisement and

         List of Claims be approved and entered of record.




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     Confide ntial informa tion may have been r ed acted fr om the document in complia nce with the P ublic Infor mation Act.


A Certified Copy
Attest: 9/29/201 5
Stan Stanart, County Clerk
Harris County, Texas



                                                  Deputy
                                                                   Rosemary Foltyn
                                                                   Independent Administratrix of the Estate of Janet
                                                                   Foltyn McAfee, Deceased




        21 0 Main Street
        Richmond, TX 77469
        Telephone: (281)341-1718
        Facsimile: (281) 341-5517


        STATE OF TEXAS                                                §

        COUNTY OF HARRIS                                              §

                I, Rosemary Foltyn, having been duly sworn, hereby state on oath that the said Inventory and
        List of Claims are a true and complete statement of property and claims of the estate that have come
        to my knowledge.



                                                                   Rosemary Foltyn
                                                                   Independent Administratrix of the Estate of Janet
                                                                   Foltyn McAfee, Deceased


                  SWORN TO AND SUBSCRIBED BEFORE ME on this                             th~ay of ./Jur;d.
        2011 by Rosemary Foltyn, to certify which witness my hand and seal of office.



                          ·~~~•
                         (.Y.             ALICE MBROOI(S
                                          NOTARY PUBLIC
                         v;;~.......,.l     State of Texaa
                           ··...~:.....· Comm. Exp, 07·11-a:t1lS




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



A_Ad
   Str:~llng
                            _Q
               G. Senechal 111
                                                          Deputy
                                                      No. 396935

         IN THE ESTATE OF                                   §     IN THE PROBATE COURT
                                                            §
         ·JANET FOLTYN MCAFEE,                              §     N0.1 _ _
                                                            §
         DECEASED                                           §     HARRIS COUNTY, TEXAS




               ORDER APPROVING INVENTORY, APPRAISEMENT & LIST OF CLAIMS

                The foregoing Inventory, Appraisement and List of Claims of the above estate having been

        filed and presented; there having been no objections made thereto; and the Court having considered

        and examined the same, is satisfied that it should be approved.

                IT IS THEREFORE ORDERED that the foregoing Inventory, Appraisement and List of

        Claims is in all respects approved and ORDERED entered of record.

                SIGNED on the _ _ day of _ _ _ _, 2011.



                                                         JUDGE PRESIDING

        APPROVED AS TO FORM:




        Carla K. Freeman
        Attorney for Rosemary Foltyn,
        Independent Administratrix of the Estate of Janet Foltyn McAfee, Deceased
        21 0 Main Street
        Richmond, TX 77469
        Telephone: (281) 341-1718
        Facsimile: (281) 341-5517




     Confidential information may have been redacted from the document in complia nce with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Ha rris County, T exas



                                               Deputy
           Tab 17
 Order on First Amended Motion
for Reconsideration of March 16,
 20 15 Order Partially Releasing
   Temporary Injunction, First
  Amended Motion for Entry of
 Order Releasing Social Security
  Proceeds from Injunction and
      Motion for Sanctions
                                                                  No. 396,935   ..-1-l;o I
                        IN THE ESTATE OF                               §     IN THE PROBATE COURT
                                                                       §
                        JANET FOLTYN MCAFEE,                           §     N0.1
         ,....                                                         §
         0              DECEASED                                       §     HARRIS COUNTY, TEXAS
         lO
                        ORDER ON FIRST AMENDED MOTION FOR RECONSIDERATION OF MARCH 16,
                          2015, ORDER PARTIALLY RELEASING TEMPORARY INJUNCTION, FIRST
         Ul
                         AMENDED MOTION FOR ENTRY OF ORDER RELEASING SOCIAL SECURITY
         0                     PROCEEDS FROM INJUNCTION AND MOTION FOR SANCTIONS
         t~
         0                     CAME ON THIS DAY, Charles Storer, Agent under a Power of Attorney from Kenneth
         C•l
         U1
         ()            McAfee's, First Amended Motion for Reconsideration of March 16, 2015 Order, First Amended

                       Motion for Entry of Order Releasing Social Security Proceeds from Injunction, and Motion for

                       Sanctions, and after considering the pleadings on file, the Responses thereto, the arguments of

                       counsel, and the evidence and testimony submitted to the Court, the Court finds that Charles

                       Storer did not prove the characterization of the property at issue by clear and convincing

                       evidence, and thus, the relief requested in Storer's Motion should be DENIED.

                                IT IS THEREFORE ORDERED that Charles Storer's Motion for Sanctions is denied;

                        and it is further

                                __ ORDERED that the previous ruling is upheld until Charles Storer provides clear

                        and convincing evidence of the separate nature of the commingled funds held at Woodforest

                        National Bank; or

                    ';J'i:ft/ 1        ORDERED that the    Woodfore!!_t~~tional Bank account funds are ~o be released to
                                                     lM:a! -5Cf'e:,i!- ~OY\CJ ~J:.         cJe..w:.,+
                        Charles Store~! ~:ovided that .$34,898.58 of the account funds   llfll   ilape!it~ into the ;.e~istry of fL
                                  {XJ-'f-UO\Q... -b ~ ~ ~~ 1-\D..rr;s,. Qo\M'"l-h.j L.:..lQ.f'L!Ol
                        the Court~until the nature of two deposits at issue has been determined.        ~ I.,I..A.e. ~
                                                              ·                          ~+ ~ e.$\c..:k
                                                                                dJ1 J~ FD l t'f~\ V~Ac.ftrJ-a,
                                                                                C-e-~·




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas



--~
  -=---.. .!. =.~
                41'- !~-
                      . -:. V{-
                             _ _.Deputy
                 Summer Lea Willette
         ...
                          SIGNED on   /J?a....y   I J>
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     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas



------;~
       ~~~+""'<=tJJI'-LIIWJ~
                           i/ltJJi
                              ~_Deputy
                Summer Lea Willette
                         APPROVED AS TO FORM:
         (\j
         0
         Cl.
         •..
                         ~:re~
                         Mary izab t       uf
         0               Texas B r No. 06166880
         tO              21 0 Main Street
                         Richmond, Texas 77469
         Ul              Tel. (281) 341-1718
                         Fax. (281) 239-7928
                         Attorneyfor Rosemary Foltyn,
                         Administratrix




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 10/1/2015
Stan Stanart, County Clerk
Harris County, Texas



----'~
     "'------'~IJ~
                 ~         \tl'i
                            _ illl&t
                                 .:..........!!._       Deputy
               Summer Lea Willette
         Tab 18
Application for Temporary
  Restraining Order and
  Temporary Injunction
- - · - - - - - · - - - - - - - - - - - - - - - - - - - - - - - - - - · -·- ..

 ...
                                                                                                 PROBATE COURT 1
                                                                      No. 396935
                                                                                                      ......... ~   .......   - ·-....·
                                                                                                                               ~ ~
                                                                                                                                     .


                IN THE EST ATE OF                                            §       IN THE PROBATE COURT
                                                                             §
                JANET FOLTYN MCAFE.E,                                        §       N0.1
                                                                             §
                DECEASED                                                     §       HARRIS COUNTY, TEXAS

                                              ...tftrtUIS7~TMTOWS
                                                  APPLICATION FOR
                        TEMPORARY RESTRAINING ORDER AND TEMPORARY INJUNCTION                                               t\ 0          ()   ,   f\.

                        -                                    .                   .                    i·()n()c) 'od '< Y \J~ tS
               TO THE HONORABLE JUDGE OF SAID COURT: .                         ·                      '\ ~ v J          '
                    .                                    .
                                             ft~r.~ tc.ot"'                  .                      .
                .   NOW COMES Rosemary Foltyn, Administrator for the Estate of Janet Foltyn McA'eb~                                           \\QJ
               ("Applicant"), and files this Application for Temporary Restraining Order and Temporary                Q~tkn                             ....

               against Kenneth McAfee, ("Respondent") herein, and in support thereof, show the court the

               following:

                                                     I           PARTIES AND SERVICE

                        I. .      Respondent, 'kenneth McAfee, an Individual who is a resident of Tex~, may be

               sery~d   with process at his hom~ at the followi~:7ress : 2119 Tangley Street, Houston, Texas

               77005; or if he remains incarcerated, through the Harris County Sheriff's Department at: 1200 Baker

               Street, Houston, Texas 77002, SPN 00883964. Service of said Defendant as described above can be

               effected by personal delivery at either location, or wherever he may ·be found.

                                                                         FACTS

                        2.        Decedent, Janet Foltyn McAfee, died on May 8, 2010, at Houston, Harris County,

               Texas, at the age of 50 years. Decedent's domicile at the time of her death was Houston, Harris

               County, Texas. Respondent is alleged to have killed Decedent. An Application to Probate Will was

               filed by Rosemary Foltyn on May 24, 2010. In addition, a wrongful death suit was filed by the heirs

               of the Estate and the relatives of Janet Foltyn McAfee, in Harris County District Court:

               U:\Ciients\FOLTYN, ROSEMARY\Applicationfor Temporary Restraining Order.r(/




            Confidential information may have been redacted from the document in compliance with the Public Information Act.


       A Certified Copy
       Attest: 9/29/2015
       Stan Stanart, County Clerk
       Harris County, Texas



       --~
         ~~~IJ
            ~ftJ~'N(=fM~--'Deputy
                   Summer Lea Willette
,.



                      3.        Should Respondent be released from incarceration, assets of the estate, rightfully

             belonging to the Community, and from which Respondent is prohibited by law and public policy

             from inheriting, may be depleted by Respondent.

                      4.        Unless Kenneth McAfee is immediately enjoined and restrained from use of the funds

             belonging to the Estate of Janet Foltyn McAfee, Kenneth Mc.Afee will have the ability to depl~te the

             assets of the estate.

                                              ELEMENTS FOR INJUNCTIVE RELIEF

                      5.        In light of the above described facts, Rosemary Foltyn, As Applicant for Independent

             Administratrix, seeks to Probate the will of Janet Foltyn McAfee. The nature of the lawsuit is

             Probate, with an additional wrongful death suit pending.

                      6.        Rosemary Foltyn, As Applicant for Independent Administratrix, is likely to succeed

             on the merits of this lawsuit because there is a necessity for administration of the estate, specifically

             so that property can be transferred to the rightful heirs.

                      7.        Unless this Honorable Court immediately restrains Kenneth McAfee, the Estate of

             Janet Foltyn McAfee as well as Rosemary Foltyn and the remaining heirs of the Estate of Janet

            ..Foltyn McAfee will suffer immediate and irreparable injury, for which there is no adequate remedy

             at law to give Rosemary Foltyn, As Applicant For Independent Administratrix, and the heirs of the

             Estate ofJanet Foltyn McAfee complete, final and equal relief. More specifically, Rosemary Foltyn,

             As Applicant for Independent Administratrix, will show the court the following:

                                A.        The harm to Rosemary Foltyn, As Applicant For Independent Administratrix,

                      and the heirs of the Estate. of Janet Foltyn McAfee is imminent because Kenneth McAfee has

                      the ability, as husband of the decedent, to deplete the assets of the Estate of Janet Foltyn

                      McAfee, and Kenneth McAfee would benefit from his alleged wrongful conduct.
             U:\Clients\FOLTYN, ROSEMARY\Applicationfor Temporary Restraining Order. rtf




          Confidential information may have been r edacted from the document in compliance with the Public Information Act.


     A Certified Copy
     Attest: 9/29/2015
     Stan Stanart, County Clerk
     Har ris County, Texas
                          B.        This imminent harm will cause Rosemary Foltyn, As Applicant For

                Independent Administratrix, and the heirs of the Estate of Janet Foltyn McAfee irreparable

                injury in that funds will not be available to the Estate for proper distribution.

                          C.        There is no adequate remedy at law which will give Rosemary Foltyn, As

                Applcan For Independent Administratrix, and the heirs of the Estate of Janet Foltyn McAfee

                complete, final and equal reliefbecause Kenneth McAfee has the ability, as husband of the

                decedent, to deplete the assets of the Estate of Janet Foltyn McAfee, and Kenneth McAfee

                would benefit from his alleged wrongful conduct.

                                                                  BOND

                8.        Rosemary Foltyn, As Applican For Independent Administratrix, is willing to post a

      nominal temporary restraining order bond and request the court to set such bond.

                                                                REMEDY

                9.        Rosemary Foltyn, As Applicant For Independent Administratrix, has met her burden

       by establishing each element which must be present before injunctive rel!ef can be granted by this

       court, therefore Rosemary Foltyn, As Applicant For Independent Administratrix, is entitled to the

       requested temporary restraining order.

                 10.      Rosemary Foltyn, As Applican For Independent Administratrix, requests the court to

       restrain Kenneth McAfee from use of any funds or property which rightfuJly belongs to the Estate of

       Janet Foltyn McAfee. Specifically, Kenneth McAfee is restrained from the use of the following

       accounts and property:

                          a.        Any accounts through OMS Group which are not the separate property of

                                    Kenneth McAfee;

                          b.        Any Compass Bank Accounts;
       U:\C//ents\FOL7YN. ROSEMARY\Applicationfor Temporary Rellra/nlng Order. rtf




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



_-- -~
     =:. .-------.:....--IL-!-
                         ~ft;_'f/(_
                                  M_ _Deputy
            Summer Lea Willette
. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- ____ ..                              , _,   "- .




                                c.        Any Laredo Accounts;

                                d.        Any Wells Fargo Accounts;

                                e.        Any Citizens' Bank Accounts;

                                f.        Pershing c/o Harland Ics Account; and

                                g.        Any community property or separate property of Janet Foltyn McAfee.

                       11.      It is essential that the court immediately and temporarily restrain Kenneth McAfee,

              from the use of the listed accoll.nts and property. It is essential that the court act immediately, pnor

              to giving notice to Kenneth McAfee and a hearing on the matter because the ability to deplete the

              assets of the estate e:xists.

                       12.      In the alternative, should the court not wish to grant a Temporary Restraining Order,

              Rosemary Foltyn as Applican For Independent Administratrix of the Estate of Janet Foltyn ~cAfee

              respectfully requests the Court to order a Constructive Trust over the aforementioned Assets_

                       13.       In order to preserve the status quo during. the pendency of this action, Rosemary

              Foltyn requests that Kenneth McAfee be temporarily enjoined from use of the accounts and property

              as described herein.

                                                                      PRAYER

                       WHEREFORE, PREMISES CONSIDERED, Rosemary Foltyn, As Applican For

              Independent Administratrix, Applicant herein, respectfully prays that:

                                 A.        Kenneth McAfee, Respondent, be cited to appear and answer herein;

                                 B.        A temporary restraining order will issue without notice to Kenneth McAfee,

                       restraining Kenneth McAfee, and his officers, agents, servants, employees, agents, servants,

                       successors and assigns, and attorneys from use of the accounts and property described herein;

                                 C.        The Court sets a reasonable bond for the temporary restraining order;
              U:\Ciient$IFOLTYN, ROSEMARY\Applicationfor Temporary Restraining Order.rtf




           Confidential information may have been redacted from the document in compliance with the Public Information Act.


      A Certified Copy
      Attest: 9/29/2015
      Stan Stanart, County Clerk
      Harris County, Texas
                                         D.           The Court order a Constructive Trust over the aforementioned assets;

                                         E.           ,f\fter notice and hearing, a temporary injunction will issue enjoining and

                            restraining Kenneth McAfee, his officers, agents, servants, employees, successors and

                            assigns, and attorneys from direct or indirect use of the accounts and property described

                            herein;

                                    F.       For such other and further relief, in law or in equity, to which Applicant may
                            be justly entitled.
                                                                    Respectfully submitted,
                                                                    Mitchel & Duff, LLC

                                                                            By:~~~~~~~~~---------­
                                                                            Mary El' abeth
                                                                            Texas ar N '. 06166880
                                                                            Amy L. Mitchell
                                                                            Texas Bar No. 12560500
                                                                            Matthew F. Scholes .
                                                                            Texas Bar No. 24056630
                                                                            210 Main Street




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                                                                            Richmond, TX 77469
                                                                            Tel. (281 )341-1718
                                                                            Fax. (281)341-5517
                                                                            Attorney for Applicant
                                                                            Rosemary Foltyn

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            U:\C/ients\FOLTYN, ROSEMARY\Appllcationfor Temporary Res/raining Order.rtf




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



----.-.-:
       ~ ~-~--==-'VT'iM
                    r.'T =--_Deputy
                          Summer Lea Willette
                                                                       VERIFICATION

       STATE OF TEXAS                                                       §
                                                                            §
       COUNTY OF FORT BEND                                                  §


                 BEFORE ME, the undersigned authority, personally appeared Rosemary Foltyn, as Applican

        For Independent Administr~trix of the Estate of Janet Foltyn McAfee who, on oath, stated that the

        statements m~de in the foregoing Application for Temporary Restraining Order and Temporary

        Injunction are true and correct.


                                                                           ~           ·            ~
                                                                          R~~                     Applican For Independent
                                                                          Administratrix of the Estate of Janet Foltyn McAfee


                  SUBSCRIBED AND SWORN TO BEFORE ME on this the~ day of                                       J v (\..t..

        2010, to certJfy which witness my hand and seal of office.
        .:.)            <
         ~;.




                 .. .   ,.   .. -: • ••. •   •   ~· ~ · ,-c ..   . -

         ''




        U:lCiients\FOLTYN, ROSEMtiRYIAppllcationfor Temporary Restraining Order. rtf




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas



-----Y~
      ~.~~~
          ftJ"'=
               ·~-,Deputy
               Summer Lea Willette
                                                                No. 396935

         IN THE ESTATE OF                                             §       IN THE PROBATE COURT
                                                                      §
         JANET FOLTYN MCAFEE,                                         §       N0.1
                                                                      §
         DECEASED                                                     §       HARRIS COUNTY, TEXAS

                            AFFIDAVIT IN SUPPORT OF
        ROSEMARY FOLTYN'S APPLICATION FOR TEMPORARY RESTRAINING ORDER

                 BEFORE ME, the undersigned authority, personally appeared Rosemary Foltyn, as Applican

        For Independent Administratrix of the Estate of Janet Foltyn McAfee, who being duly sworn,

        deposed as follows:

                  "My name is Rosemary Foltyn. I am at least 18 years of age and of sound mind. I am

        personally acquainted with the facts alleged herein.

                  "kenneth McAfee was married to Janet Foltyn McAfee at the time of her death on May 8,

        20 10. Kenneth McAfee was arrested by the Houston Police Department, and charged with the

        murder of Janet Foltyn McAfee. Kenneth McAfee is currently incarcerated for that charge, pending

        a trial. Kenneth McAfee may soon make bail and be released from custody. Ifhe is not restrained

        from using any of the accounts and property listed in the Application for Temporary Restraining

        Order and Temporary Injunction, the assets of my daughter's estate will be depleted. I have filed an

        Application to Probate a Holographic Will and For Issuance ofLetters of Administration P.ursuantto

        Section 145(d) of the Texas Probate Code at the request of the heirs of the Estate, myself and Jake

        Foltyn so that my daughter's property can be distributed· in accordance with her wishes."

                  "Further affiant sayeth not."


                                                                   Rosemary Folt , as Applican or Independent
                                                                   Administratrix of the Estate of Janet Foltyn McAfee

         U:\CIIentJ\FOLTYN. ROSEMARY\Applicationjor Temporary Restraining Order.rtj




     Confidential infor mation may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Har ris County, Texas



----=-
  ~   ---=----.. ~t.J
                 l!. . :. ·_W'i_
                               M_ _.Deputy
           Summer Lea Willette
                SUBSCRIBED AND SWORN TO BEFORE ME on~~ iJJic> , by J?a~IFPN:f~.

                         .                 .                      Af~                q.J:W2
             e           MARY EUZABEni DUFF DROZD
                          Notary Public, Stat& ofT8X811
                         Commission Explree 03-13-2013
                                                                  Notary:t2:state of Texas




        U:\Ciients\FOLITN, ROSEMARY\Applicationfor Temporary Restraining Order.rlf




     Confidential information may have been redacted from the document in compliance with the Public Information Act.


A Certified Copy
Attest: 9/29/2015
Stan Stanart, County Clerk
Harris County, Texas




           S·Jmmer Lea Willette
. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --- -·--·-·- - ·---...                         .




                                                                      No.396935

               IN THE ESTATE OF                                              §       IN THE PROBATE COURT
                                                                             §
               JANET FOLTYN MCAFEE,                                          §       N0.1
                                                                             §
               DECEASED                                                      §       HARRIS COUNTY, TEXAS

                                 TEMPORARY RESTRAINING ORDER

                       O n - - - - - - - - - - ' 20 I 0, the Application for a Temporary Restraining Order

              of Rosemary Foltyn,         ~s   Applican For Independent Administratrix of the Estate of Janet Foltyn

              McAfee was heard before this court.

                       Based upon the pleadings, records, documents filed by counsel, and the arguments ofcounsel

              at the hearing, IT CLEARLY APPEARS:

                       A.        That unless Kenneth McAfee is immediately restrained from the use ofthe following

              accounts and property:

                                 a.        Any accounts through GMS Group which are not the separate property of

                                           Kenneth McAfee;

                                 b.        Any Compass Bank Accounts;

                                 c.        Any Laredo Accounts;

                                 d.        Any Wells Fargo Accounts;

                                 e.        Any Citizens' Barik Accounts; and

                                 f.         Pershing c/o Harland Ics Account; and

                                 g.         Any community property or separate property of Janet Foltyn McAfee.

              that Kenneth McAfee will commit the foregoing before notice and a hearing on Rosemary Foltyn's

              Application for Temporary Injunction.

                                 B.         Rosemary Foltyn, as Applican For Independent Administratrix of the Estate of
              U:\Ciients\FOLTYN, ROSEMARY\Applir:ationjor Temporary Restraining Order. rtf




           Confidential information may have been redacted from the document in compliance with the Public Information Act.


      A Certified Copy
      Attest: 9/29/2015
      Stan Stanart, County Clerk
      Harris County, Texas


                   ~~ftl'iillllll
      ------~s~um;~TI.,~r,ft
                          e~. r
                              Le~a~vvvimll~en~e
                                              ~___Deputy
. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -·- --
 t   •       1   l




                              Janet Foltyn McAfee and the other heirs of the Estate of Janet Folt)rn McAfee will suffer

                               irreparable hann if Kenneth McAfee is not restrained f:Tom the use of the foregoing property

                             . imm~diately because he will deplete the assets of the Estate of Janet Foltyn McAfee and

                               there is no adequate remedy at law to grant Rosemary Foltyn, as Applican For Independent

                               Administratrix of the Estate of Janet Foltyn McAfee and the other heirs of the Estate ofJanet

                               ~altyn   McAfee complete, final and equal relief.

                               IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Kenneth McAfee and

                     all of his officers, agents, servants, employees, agents, servants, successors and assigns, and attorneys

                     are ORDERED to immediately cease and desist from the use of the following accounts and property:

                                         a.       Any accounts through GMS Group which are not the separate property of

                                                  Kenneth McAfee;

                                         b.       Any Compass Bank Accounts;

                                         c.       Any Laredo Accounts;

                                         d.        Any Wells Fargo Accounts;

                                         e.        Any Citizens' Bank Accounts; and

                                         f.        Any community property or separate property of Janet Foltyn McAfee,

                     from the date of entry of this order until twenty (20) days thereafter, or until further order of this

                     Court.

                               IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that a Constructive Trust is

                      issued over the aforementioned assets.

                               IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Rosemary Foltyn's, as

                     .Applican For Independent Administratrix of the Estate of Janet Foltyn McAfee Application for

                      Temporary Injunction be heard on _ _ __ _ _                         at       :00 _M in the courtroom of Probate
                      U:\CIIents\FOLTYN, ROSEMARY\Applicalionfor Temporary Restraining Order.rif




                 Confidential information may have been redacted from the document in compliance with the Public Information Act.


         A Certified Copy
         Attest: 9/29/2015
         Stan Stanart, County Clerk
         Harris County, Texas



         _           ____,_~
                           ~~~-t"-'¥
                                ru-'iiJldu
                                     -"-"-"'~_D. eputy
                        ~>umm er Lea Willette
.'

             Court# I of Harris County, Texas. Kenneth McAfee is commanded. to appear at that time and show

             cause, if any exist, why a temporary injunction should not be issued against him.

                       The clerk ofthe.above-entitled court shall issue a temporary restraining order in confonnity

             with the law and the terms of this order upon the filing by Rosemary Foltyn of the bond hereinafter

             set.

                       This order shall not be effective until Rosemary Foltyn, as Applican For Independent

             Administratrix of the Estate of Janet Foltyn McAfee deposits with the Clerk, a bond in the amount o~

             $_ _ _ _ _ _ in conformity with the law.

                       SIGNED and ENTERED on                                      at _ _ _.M.




                                                                                   PRESIDING JUDGE


                                                                                          THIS 1NSTfHJMENT R~TUR~~~~
                                                                                          UNSlGNf.O UV .JUDGES OF




                                                           ... ·'   --· ~ ·"· ·




             U:\CIIems\FOLTYN, ROSEMARY\Applical/onjor Temporary Restraining Order. rtf




          Confidential information may have been redacted from the document in compliance with the Public Information Act.


     A Certified Copy
     Attest: 9/29/2015
     Stan Stanart, County Clerk
     Harris County, Texas



     -----=-~
            ------=-=-.i·,?t. .le-.;
                               !.--=--V{(__ _ _D.eputy
                    Summer Lea Willette
