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                    APPELLATE COURT CAUSE NO.                     05-14-00899-CV

RANDALL MOTR                                    §             IN THE COURT OF APPEALS
                                                §
       Appellant,                               §
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              VS.                               §             5™ DISTRICT OF TEXAS n
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JPMorgan Chase Bank, N.A.                       §                                         u-,ai
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       Appellee,                                §            DALLAS, TEXAS                & R" S        "g w
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             On Appeal from the 429™ District Court of Collin County, Texas
                           Trial Court Cause No.        429-04102-2013



          APPELLANT'S MOTION FOR REHEARING/RECONSIDERATION


TO THE HONORABLE JUDGES OF THE COURT OF APPEALS, 5™ DISTRICT OF TEXAS
DALLAS, TEXAS:
zza


      APPELLANT, RANDALL MOIR files this MOTION for rehearing/reconsideration in
response to the opinion issued by the Court on December 4, 2014. A request for an extension to
file this Motion for rehearing was formally filed on paper onJanuary 2, 2015, and the 5th Court
ofAppeals (5th COA, or simply COA) granted the extension request on January 5, 2015. The
period granted set the new due date as January 20, 2015 by convention. The Appellant also filed
a Notice ofChange ofAddress onJanuary 2 (also filed on paper and submitted ahead ofthe
request for an extension). As ofJanuary 19, 2015, the Appellant has not yet received the official
paper notice ofthe extended deadline, but instead received word on Friday, January 17 (via
phone) that the extension had been granted. As a result, this Motion for rehearing has been
compiled without the advantage ofthe two weeks originally requested.
       The Appellant requests that the Appeals Court consider the following primary issue that
is procedural in nature and that was raised and preserved twice at the Trial Court level by the
Appellant's two Requests for Finding of Fact and Conclusion of Law (see Clerk's Record pp 96
to 98, see also pp 111 to 112 for aPast Due Notice ofFOF &COL). These requests noted
specifically that the Petitioner failed to follow the strict procedural mandates stated under TRCP

                                                1
                                            ^K%t'^^^^^®^£^^^.a^-^!?^«^.'#V.-H?




736.6 and that this failure carries with it certain rights for the Appellant that are not afforded
other TRCP 736 proceedings where both the letter and intent of Rule 736.6 or its alternative
mandate (see TRCP 736.7) are properly and correctly followed.
       Consequently, this appeal is very restricted in scope and simply asks at whatpoint has a
Rule 736 proceeding successfully satisfies the intent and letter of Rule 735 and Rule 736, or
conversely are there certain Rule 736 prerequisites that are material to Rule 736in orderfor the
Trial Courtto be able to be empowered with Rule 736 capacity and authority in order to act upon
an Application? That is, what steps must be satisfied according to the intent and letter of Rule
736 before the Trial Court can either deny or grant the Rule 736 Expedited Order to proceedwith
foreclosure?

        This fundamental legal question is at the heart of this appeal. It is also importantto
convey to all parties that 99.9999% of all Rule 736 proceedings do comply with mandatory
aspects of Rule 735 and Rule 736. However, the issues raised here areimportant forthe COA to
address because the current Trial Court proceedings demonstrate thatthe Trial Court's handling
ofthe Petitioner's lawyers failure to follow a few simple, key procedural steps has cost all parties
involved unnecessary time and effort in an attempt to correct. That is, the law firm that alleges to
represent JPMorgan Chase Bank NA, yet files correspondence and motions that are written to
apply toother unnamed third parties that are clearly not JPMorgan Chase Bank NA engaged the
Appellant for some two years prior to filing a defective Rule 736 application.
        It is clear from all court actions and correspondence to date that this issue of not
truthfully naming the party filing the Rule 736 Application is not able to be properly addressed in
a Rule 736 proceeding because Rule 736 does not allow discovery. Instead, the Courts have
madeit clear that when issues are raised concerning the terms of any contract, security agreement
or lien, most Trial Courts take the position that all documents filed with the application and all
facts alleged are considered true and the Application is accepted as prima facie evidence. While
this position is necessary for adefault order as Rule 736.7 mandates, the Trial Courts also seem
to exert the same stance for an application even when the response demonstrates otherwise.
         In the case appealed here, the Application contained aredacted account number (see
Clerks record pp 38) that is material to the issue ofwhether the Appellant was properly notified
that a default had occurred under the terms ofaloan agreement or lien. The account listed on a
true and complete copy of the Notice of Default(see pp 62 of Clerks record) that was submitted
to the Trial Court by the Appellant/Respondent listed an account number that never existed as a
two party account binding the Appellant to any other party whether that party be the Servicer or
the Lender. The lawyer for the petitioner stated in open courtthat pp 62 of Clerks record was
merely a "demand letter" sent by thethird party "lawfirm" and notthe official notice of default
as required bythe contract (see Court Reporters Record Vol 3 pp 7 lines 15 to 17). The Rule 736
proceedings held atthe Trial Court level never made it Step 736.6 and thus themerits of the
Application and the various documents and affidavits compiled and presented bythe third party
law firm were never discussed under Step 736.6.
       The jurisdictional hearing that was held was scheduled ahead of Step 736.6 and was
focused onjurisdictional matter and not on the merits oftheApplication. Infact, the Appellant
specifically stated both in his original response (see the last sentence of the very first paragraph
oftheRespondents original answer onpage 45 of the Clerks Record) and in his Motion to
dismiss for lack of Jurisdiction that addressing jurisdictional issues allows the Trial "Court to
dismiss the application without regard to determining whether the Petitioner/Plaintiffs
application and claims have merit (see page 45 ofthe Clerks Record, top praragraph, last
sentence). The Appellant continued on tostate that ifthe Trial Court could not dismiss the Rule
736 Application for jurisdictional reasons, then the "Respondent/Defendant requests a hearing on
Conditions Precedent and whether the required notices were sent... prior to the filing ofthe
Application.".
         Once again, the hearing that is required under Rule 736.6 and where such matters are the
burden ofthe petitioner to prove never was held. The Court Reporter's record shows that when
the jurisdictional hearing was ended, the Trial Court judge erred by immediately moving forward
to act upon the Application instead ofallowing aparty to schedule ahearing under Rule 736.6
that would comply with the strict time frame under which the Trial Court would be empowered
to act upon the Application, and either to grant or deny it.
        It is here that the Trial Court abused itsdiscretion and commandeered the proceedings to
move them beyond the statutory time frame provided for and clearly stated under Rule 736.6.
This error occurred when the Trial Court closed the jurisdictional hearing, ruled on the motion to
dismiss for lack ofjurisdiction, and then immediately acted upon the Application and granted the
order without holding a hearing that would fulfill the Trial Court's strict obligations under Rule
736.6. The Appellees lawyers have never denied this either when confronted during the Finding
of Facts or at anytime since.
       One may rightfully ask why the Trial Court must follow the strict mandate given under
Rule 736.6 when a Response has been filed. Does this even matter? Areview ofsome ofthe
Texas legislature's hearings held in 2007 where Rule 735 and Rule 736 were rewritten as well as
subsequent rewrites provides some ofthe intent behind the changes. The expedited foreclosure
process was designed to provide the Trial Courts with relief from holding judicial proceedings by
creating a process that could move very quickly when all prerequisites and Rule 736
requirements were properly satisfied. When adefault order could be issued, the material facts of
the filed documents and of the standing of the parties onthe application was alleged to betrue
and the Court was required to issue an order granting the application. This reduced the work load
ofthe Trial Courts by removing many foreclosures from the formal judicial foreclosure track and
instead allowed them to proceed as expedited Rule 736 proceedings requiring as few as one
hearing when aresponse was filed or simply amotion for adefault order when no reply was filed
with the Trial Court.
        Rule 736.6 was written to require a hearing when a response was filed in a Rule 736
proceeding. In fact, this hearing was designed to be expedited and the Texas legislature specified
avery short time frame for the Trial Court to conduct the hearing once aresponse was filed. The
only other mandate under Rule 736.6 was that:

      The hearing on the application must not be held earlier than 20 days or later
      than 30 days after arequestfor ahearing has been made by anyparty (TRCP
      736.6)


        And so it is easy for one to review the Clerks record and the Court Reporter's record to
 see if any Rule 736.6 hearing was held concerning Trial Court case 429-04102-2013. And since
 no hearing on the Application was ever scheduled that complied directly with Rule 736.6
 deadlines, the Rule 736 proceedings never made it to Step 736.6. But since areply had been
 filed, then the Trial Court abused its discretion by not complying with the strict time frame for

                                                    i
scheduling and holding a hearing on theApplication. And without satisfying Rule 736.6, the
Trial Court had no power or capacity to continue with theRule 736 proceedings until the Trial
Court held such hearing.


Summary of Major Issues


       The foregoing eight paragraphs summarize thereason why theTrial Court abused its
discretion under Rule 736 and why the COA hasjurisdiction to void the Trial Courts actions on
the Rule 736 application. The proceedings held bythe Trial Court stopped before the step where
Rule 736.6 would have been performed. No hearing was ever held thatsatisfied the strict
mandates established underRule 736.6. Consequently, the Trial Court could not engage the
Petition because the Petitioner failed three times to schedule a Rule 736.6 hearing. The Docket,
Clerk's record and Reporter's Record all clearly show that a Rule 736.6 hearing was never held.
Thus, when the Trial Court closed the jurisdictional hearing, a hearing that by common law and
convention could be held at any time, and then immediately acted upon the application without
abiding by Rule 736.6, the Trial Court issued an order under Rule 736.8 that must be voided
since it cannot be issued without first holding a Rule 736.6 hearing.


A Logical, Legal Sequence to Rule 736 Proceedings


         The sequence in which an order under Rule 736 may be issued when a reply has been
filed is clear and straight forward in the TRCPs for Rule 736. For example, Rule 736.1 must be
fulfilled before aRule 736 proceeding can be placed on the court docket. Areply under Rule
736.5 must be timely filed with the Trial Court before the Rule 736 proceedings can progress to
Rule 736.6, otherwise the proceedings must take the Default track mandated under Rule 736.7.
In either case, the Trial Court whether under the Rule 736.6 track or under Rule 736.7 track
cannot progress to act upon the Application at Rule 736.8 until it has also complied with the time
frame specified under each track in either Rule 736.6 or Rule 736.7.
        Rule 736 was designed to be an expedited proceeding, and so the rules carry deadlines
that are the same as statutory law. That is, one must file aresponse to aRule 736 application

                                                  s
within a very strict time frame orlose the right to contest the expedited process. And justlike the
deadlines for perfecting an appeal, one must comply orlose the special rights so conveyed. The
argument here isthat a Rule 736 order cannot be acted upon by the Trial Court until the
proceedings have satisfied all prerequisites sequentially and one ofthose mandatory requirements
when areply is filed isthat the Trial Court hold aRule 736.6 hearing that complies with the strict
schedule dictated. Why isthis important? The strict time frames help keep Rule 736 proceedings
moving forward and not languishing on the docket as this particular case did because the
application itself was defective.
        The statutory deadlines mandated for the Trial Court under Rule 736 must be satisfied or
the Trial Court loses the special powers provided under Rule 736. Those powers are mostly
protections and make the Trial Court's actions on the Application immune to amotion for
rehearing, new trial, bill ofreview, or appeal (see Rule 736.8c).
        The position taken here is that the Trial Court abused its discretion, failed to satisfy
mandated scheduled, failed tohold a hearing under the strict time frames dictated by Rule 736.6
and thereby ended the official Rule 736 proceedings before step 736.6 had been fulfilled. In this
way, the Trial Court leaves ahigher court no option other than to void its action on the
application since the Trial Court acted without capacity and without authority under Rule 736.
One could also say that the Trial Court had no standing or jurisdiction to act upon aRule 736
application when it allowed the proceedings to venture outside ofRule 736.6 mandates.

Case Law and Authority concerning Rule 736.6


        After an online search oflegal resources for other Trial Court cases where an argument
for failing to fulfill Rule 736.6 had been made, the Appellant came up with just his own Appeal.
The Appellee and the COA have provided case law where Rule 736 appeals have been either
denied or dismissed for reasons that do not fit the current appeal. The specific case cited in the
 opinion issued by the COA on this appeal (Dec 4Opinion here), the Pitman vs Fed. Nat'l Mort
 Ass'n. Appeal was dismissed because the Appellant did not respond to the Motion to dismiss
 submitted by the Appellees. That case did not raise the issue ofafailure to fulfill mandated Rule
 736.6 requirements. The other case cited by the COA, Lehman v. Har-Con Corp involved many
complex jurisdictional issues and the question of when an order is or is notappealable. However,
that case does not address the error at the trial court level when a Trial Court abuses its discretion
and fails to followRule 736 mandates. Finally, many other Rule 736 appeals are dismissed when
Appellants fail to meet critical deadlines (such as failure to perfect the appeal intime), orfail to
submita letter brief, or fail to submitthe Clerk's record or CourtReporter's record.
Consequently, while the Appellant has not exhausted a search ofRule 736 cases, the results
obtained so far demonstrate that the current appeal has legal meritin that the Trial Court failed to
reign in thePetitioners lawyers and allowed them to submit the Application for the Court to act
on at a time that was clearly outside of the scope and jurisdiction mandated by a Rule 736
proceeding.
        Not one appeal was found that focused solely on whether ornot the Trial Court held a
Rule 736.6 hearing according to Rule 736.6 mandates. And soif the COA is unable to address
this procedural failure and still feels handcuffed by Rule 736.8 despite the fact that the Trial
Court never carried the proceedings tothat stage since it failed to satisfy Rule 736.6, then the
Appellant will request aWrit ofMandamus since the Trial Court clearly abused its discretion and
did not comply with Rule 736.6 before acting on the Application. Remember, the Appellee's
attorneys pushed the Trial Court three times into scheduling a hearing outside ofRule 736.6.
Two ofthose hearings were used to address jurisdictional issue without addressing the merits of
the case as ajurisdictional hearing is supposed todo. The lawyer who showed up in court
confided tome that he did not represent JPMorgan Chase Bank NA, but rather stood infor the
law firm that compiled the Application. The Court reporter's record shows that I objected to his
presence but the Trial Court simply took all the application's allegations as true without
scheduling any Rule 736.6 hearing where the Applicant has the burden ofproving the alleged
facts that are material and prerequisite.
        The foregoing sections merely set the stage for what is now asingle primary issue for the
COA to consider. Although the Appellant has offered several issues to consider in the
abbreviated schedule apply to this appeal, the best way to correct the error committed by the Trial
Court is to focus on errorthat has not been addressed to date.
                                       ki^,'t'W&i$&^$Mm^M&t&:




                           The Primary Issue Presented for Review


Primary Issue- Issue 1: The Court ofAppeals erred in applying TRCP rule 736.8c to a Trial
Courtproceeding that clearly and unarguably did not comply with a compulsoryprerequisite
stated under TRCP rule 736.6 that comprises one of thefew mandatoryprocedural steps
necessary before a Trial Court can obtain the capacity andpower to act upon a Rule 736
Application in any official manner whatsoever when aresponse has beenfiled with the court. By
not complying with the mandatoryparts ofRule 736.6, the Trial Court's actionspush the court
proceedings outfrom under the specialprotections that are provided under Rule 736.8a and by
this lack ofcompliance have removed the 'nonappealable' mandatefrom restricting what a
higher court may do to correct the abuse ofdiscretion.


       Simply stated, aRule 736 filing where the Applicant's lawyers request hearings not just
once or twice but actually three times outside ofthe strict mandate clearly specified under Rule
736.6 also lose the right to claim any special Rule 736.8 protections. Rule 736.6 only applies to
expedited foreclosure proceedings where the Respondent files areply. Once areply is filed with
the court, then the Trial Court must follow afew simple mandatory steps ifthe proceedings are to
continue as aRule 736 proceeding. But when the Trial Court fails to follow the mandatory steps
clearly stated under Rule 736.6, then the Trial Court also fails to obtain the special power,
capacity and jurisdiction to act upon the Rule 736 application in amanner where the Trial
Court's actions are automatically immunefrom appeal.
        The primary question under this appeal can be stated as follows: what empowers the Trial
Court with capacity and standing to be able to act upon aRule 736 application? Rule 736.7 states
in clear language how the Trial Court is to proceed when no response is filed. Rule 736.6 states
in clear language how the Trial Court is to proceed when aresponse is filed. And Rule 736.8
 provides specific protections that the Trial Court's actions are given when the Trial Court has
 complied either with Rule 736.6 or Rule 736.7 and which is dependant on the track the Trial
 Court must follow according to whether aresponse is filed or not. And one of the protections
 assigned to the Trial Court's actions when it properly satisfies all Rule 735 and 736 mandates is

                                                                *
that the granting or denying of the application is not appealable.


A Jurisdictional Hearing is not a Rule 736.6 Hearing


       What was held onApril 11, 2014, was ajurisdictional hearing and case law clearly allows
the Trial Court or any party the right to request a hearing on jurisdictional issues at any time.
However, the commandeering ofthis jurisdictional hearing straight into a Rule 736.6 hearing
violates both the letter and intent of Rule 736.6. The Trial Court abused its discretionwhen it
proceeded to act upon the Rule 736 application outside ofthe strict mandate given for scheduling
such a hearing.
       ARule 736 proceeding isdesigned tobefast track and toconsume minimal court time
and resources when the application is correctly completed and all prerequisites fulfilled as
required. One of the most important prerequisites is that an expedited Rule 736 proceeding does
not alter any foreclosure requirement orduty imposed under the terms ofthe loan agreement,
contract, or lien sought to be foreclosed. This point is stated clearly in Rule 735.2 and again in
Rule 736.1(d)3(F) and 3(G). These require that all notices required by the loan
agreement/contract/lien and by applicable law have been sent prior to the filing of the Rule 736
application with the Trial Court. The Rule 736 proceedings conducted by the Trial Court never
held ahearing to address these issues despite the Appellants reply that raised material issues
about them. They represent another are to address however the Appellant feels that the issues
around Rule 736.6 are more productive given the status usually assigned to Rule 736
proceedings.


                                              PRAYER



For the reasons stated in this motion, Appellant asks the Court to grant this motion for rehearing,
withdraw its opinion, void the Trial Court's actions on the Rule 736 Application and either (1)
throw out the proceedings entirely for not complying with Rule 736 mandates, or (2) request that
 the Trial Court allow the Rule 736 proceedings to resume where they left off after holding a
 special hearing to update all parties since certain material facts may have changed substantially
                                                  &i(^i^fSS^3^^?#tffeiW^




and may make the Rule 736 proceedings obsolete. There is ofcourse, one other option infront of
the Court. The Courtcan revert backto setting a schedule for filing a formal brief, holding oral
argument and proceeding with the appeal under a normal track.




                                                    /*
                   APPELLATE COURT CAUSE NO.                 05-14-0899-CV

                               CERTIFICATE OF SERVICE



The undersigned hereby certifies that the Appellate served by U.S. Mail on January 20, 2015, a
true and correct copy ofthis Motion to Request Rehearing/Reconsideration to Marcie L. Schout,
2001 Bryan St., Suite 1800, Dallas, TX 75201.




                                                      Randall Moir (ProSe)
                                                      PO Box 1356

                                                      Frisco TX 75034-0023

                                                      972.335.4446




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