                                                                                                      ACCEPTED
                                                                                                  04-14-00342-CV
                                                                                      FOURTH COURT OF APPEALS
                                                                                           SAN ANTONIO, TEXAS
                                                                                             7/6/2015 11:52:35 AM
                                                                                                   KEITH HOTTLE
                                                                                                           CLERK

                                No. 04–14–00342–CV
RICHARD A. RODRIGUEZ                                         IN THE COURT FILED
                                                                          OF APPEALS
                                                                                IN
                                                                        4th COURT OF APPEALS
vs.                                                 4TH COURT OF APPEALS  DISTRICT
                                                                  SAN ANTONIO, TEXAS

JPMORGAN CHASE BANK, N.A.                                          SAN7/6/2015
                                                                       ANTONIO,11:52:35 AM
                                                                                     TEXAS
                                                                          KEITH E. HOTTLE
                                                                               Clerk
  Supplemental Motion To Review the Ruling on the Amount and Type of Security
           To Suspend Enforcement of the Judgment Pending Appeal,
      With a Request for Emergency Relief Regarding a Sale on July 7, 2015

      Comes now appellant, Richard A. Rodriguez, and in this supplemental motion moves

the court to review the ruling of the trial court on the type and amount of security to suspend
enforcement of the judgment, and grant emergency relief, pursuant to Tex. R. App. P. 24.4

and due process under Article I, section 19 of the Texas Constitution.

      Mr. Rodriguez may also be referred to as Rodriguez or appellant, and JPMorgan
Chase Bank may be referred to as JPMC or appellee.

                                               I.

      On August 29, 2014, a Motion To Review the Ruling on the Amount and Type of
Security To Suspend Enforcement of the Judgment Pending Appeal, With a Request for

Emergency Relief Regarding a Planned Sale of Property, was filed in this court.

      A sale of the subject property at that time was scheduled for September 2, 2014, and

as part of the motion, emergency relief was requested in the form of a stay order concerning

the proposed sale. The sale on September 2 was canceled, and so the resolution of the

motion and relief was then not pertinent.

                                              II.

      Prior to this supplemental motion, documents filed in the court of appeals in this regard

are as follows.

      August 29, 2014: Motion To Review the Ruling on the Amount and Type of Security
                                               1
To Suspend Enforcement of the Judgment Pending Appeal, With a Request for Emergency

Relief Regarding a Planned Sale of Property. Filed by Appellant.

     September 1, 2014: Supplemental Content for the Motion To Review the Ruling on the

Amount and Type of Security To Suspend Enforcement of the Judgment Pending Appeal.

Filed by Appellant.

     September 2, 2014: Second Supplemental Content for the Motion To Review the

Ruling on the Amount and Type of Security To Suspend Enforcement of the Judgment

Pending Appeal. Filed by Appellant.

     September 3, 2014: Appellee JPMorgan Chase Bank, N.A.’s Notice Regarding Ap-

pellant Richard A. Rodriguez’s Motion To Review Order On Suspension of Enforcement
of Judgment. Filed by Appellee.

     September 18, 2014: Appellee JPMorgan Chase Bank, N.A.’s Response In Opposition

To Appellant Richard A. Rodriguez’s Motion To Review Order Setting Security. Filed by

Appellee.

     June 9, 2015: Appellee JPMC’s Supplemental Response In Opposition To Appellant’s

Motion To Review Order Setting Security. Filed by Appellee.

                                              III.

     On June 1, 2015, JPMC requested by a letter that the district clerk issue an order of
sale for the real property involved in this case. A certified copy is attached as exhibit ’A’.

     A public notice of a sale of the property for July 7, 2015 was published. A copy is

attached as exhibit ’B’.

     On June 17, 2015, an opinion and judgment were issued affirming the judgment of the

trial court.

     On July 2, 2015, Appellant filed a motion for rehearing and a motion for rehearing en

banc.
                                               2
                                             IV.

     An issue on appeal and in the motions for rehearing and rehearing en banc involves

the statute of limitations, a counterclaim against Appellant, and a request for a judicial

foreclosure of a lien.

     A non-judical foreclosure of the lien and homestead property through a deed of trust

has been barred by limitations under section 16.035(b) of the Texas Civil Practice and

Remedies Code.

     An issue in this appeal is whether a judicial foreclosure of the lien through a counter-
claim against Rodriguez is also barred by limitations. JPMC in its brief took the position

that the note involved was accelerated on June 7, 2000. A counterclaim was first filed

against Appellant on August 11, 2004. Based on those dates, a suit for foreclosure of

the lien is barred by limitations, under section 16.035(a) and (d) of the Civil Practice and

Remedies Code. JPMC has argued that limitations was tolled, and Rodriguez has replied

that the tolling argument is not applicable or valid in this situation. This specific part of

the appeal and Appellee’s argument about tolling were not directly analyzed and addressed

in the opinion of June 17, and they are part of the motions for rehearing and rehearing en
banc.

     If it is determined—after any rehearing, or if a petition for review is filed in the Texas

Supreme Court and acted on—that a suit for foreclosure of the lien is barred by limitations,

then a sale of the homestead property based on a foreclosure of that type should not take

place.
                                              V.

     Appellant requests that the documents filed and noted in part II above be considered

along with this supplemental motion, that an order be issued staying the sheriff’s sale of

the property scheduled for July 7, 2015 beginning at 10:00 a.m., until the mandate upon the
                                              3
conclusion of the appeal is handed down or until further order of the court.

                                             VI.

     An inquiry was made to attorneys for JPMC and in a reply it was indicated that

Appellee is opposed to the motion.

                                           Prayer

     Therefore, Richard A. Rodriguez prays that this supplemental motion be filed; that it

be considered by the court along with documents previously filed by the parties; that an

order be issued staying the sheriff’s sale of the property scheduled for July 7, 2015 until

the mandate upon the conclusion of the appeal is handed down or until further order of

the court; in the alternative, that a temporary stay order be issued against the sale of the
property at 15426 Fallow Ridge Drive, San Antonio, Bexar County, Texas set for July 7,

2015 and that any sale be further stayed while this motion for review is pending; that the

court reporter of the 45th Judicial District Court prepare and file a record of the hearing of

August 18, 2014 on the motion for suspension of enforcement of judgment pending appeal;

that the district clerk be directed to prepare and file in the court of appeals an applicable

record from the clerk’s file on the matter of suspension of the judgment on appeal, if

appropriate; that the court direct that any supplemental pleadings or briefing be done as

appropriate; that oral argument or other hearing be scheduled regarding this motion; that
the court determine that Tex. R. App. P. 24.2(a)(3) applies and the lis pendens and other

security, such as an injunction on appellant, is sufficient to preserve the property and status

quo pending appeal; in the alternative, that the existing $12,000 amount for a deposit or

bond on appeal to suspend the sale of the property be reduced to an amount that will not

cause appellant substantial economic harm; that the court determine the amount of a bond,

security, or other deposit regarding the money judgment of $441,027.10 in accordance with

the judgment debtor’s current net worth and in an amount that will not cause appellant
                                              4
substantial economic harm; in the alternative, that the issue of security on appeal regarding

the money judgment be remanded to the trial court for further proceedings pertaining to
net worth; that the court make other determinations and orders regarding suspension of

enforcement of the judgment on appeal under Tex. R. App. P. 24 that it deems proper; and

that he have such other relief, in law or equity, to which he may be justly entitled.

                                              Respectfully submitted,



                                              /s/ R. Robert Willmann, Jr.

                                              R. Robert Willmann, Jr.
                                              Attorney at Law
                                              P.O. Box 460167
                                              San Antonio, Texas 78246
                                              Tel 844.244.9973
                                              Temporary Fax 361.552.4305
                                              willaw@prismnet.com
                                              Bar No. 21655960




                                              5
Exhibit A
FILED
6/1/2015 1C>-41:NA 8
Donna Kay McKinney                                                                    WRIT OF EXEC. M I 0
Bexar County District Clerk
Accepted By: Nikki Garcia




                                                     A PROFESSIONAL CORPORATION
                                                     ATTORNEYS A N D COUNSELORS

                                                     2001 BRYAN STREET. SUITE 1800
                                                          DALLAS, TEXAS 75201

               Gregory Sudbury
               Attorney at Law
                                                            June 1,2015
                                                                                           Via Electronic Filing
               Bexar County District Clerk
               0 1 W. Nueva. Suite 21 7
               San Antonio, Texas 78205

                        RE: JPMorgan Chase Bank, N.A. v.Richard Rodriguez; Case No. 2000-CI-12923; in the
                                 285th Judicial District Court of Bexar County, Texas.

                        Dear Sir or Madam:

                       On March 24,2014, PlaintiffJPMorgan Chase Bank, N.A. (-'JPMC") recovered a judgment
               against Defendant Richard Rodriguez for the amount of $441,027.10 together with post-judgment
               interest as provided by law from the date of signing ofthe judgment until paid and for foreclosure
               of JPMC's mortgage lien as it existed on the judgment date against the real property commonly
               known as 15426 Fallow Ridge Drive, San Antonio, Texas, 78248, which is more particularly
               described as:

                        Lot 50, Block 2, New City Block 14292, DEERWOOD, UNIT4, in the City of San Antonio,
                        Bexar County, Texas; according to the plat thereof recorded in Volume 9529, Page 224;
                        Deed and Plat Records of Bexar County; Texas.

                       In accordance with the Judgment, please accept this letter as a request to issue an Order
               of Sale for the real property described above. With this request, JPMC is submitting payment in
               the amount of $8.00 for your fee to issue the order.

                     Once the Order of Sale has been issued, please FedEx it to our office. We will be
               sending you a FedEx envelope for this purpose.

                     Thank you for your attention to this matter. Should you have any questions, please contact
               my paralegal, Heather Ferrill, at (214) 880-1830.
                                                              Sincerely,
                                                              /s/ Gregory Siidbury
                                                               Gregory Sudbury

                                                              4828-2059-6004, V . I



  Case Number: 2000CI12923                            Document Type: REQUEST FOR PROCESS               Page 1 o f 2
        CERTIFIED COPY CERTIFICATE STATE OF TEXAS
        I, DONNA KAY MSKINNEY, BEXAR COUNTY DISTRICT
        CLERK, DO HEREBY CERTIFY THAT THE FOREGOING
        IS A TRUE AND CORRECT COPY OF THE ORIGINAL
        RECORD NOW IN MY LAWFUL CUSTODY. WITNESS
        MY OFFICIAL HAND AND SEAL OF OFFICE ON THIS:


              July 02,2015

        DONNA KAY MSKINNEY
        BIXAR COUNTY, TEXAS
                                  A

 By:


       (NOT VALID WITIIOUT TEE CLERKS'S ORIGINAL SIGA'ATURE.)




Case Number: 2000C112923                            Document Type: REQUEST FOR PROCESS   Page 2 o f 2
Exhibit B
                                 Affidavit Regarding Exhibit
State of Texas
County of Calhoun

     Before me, the undersigned authority, personally appeared R. Robert Willmann, Jr.,
who, after being duly sworn, stated as follows.

     "I, R. Robert Willmann, Jr., am over 18 years of age, am an attorney licensed to
practice law in the State of Texas, and am otherwise competent to make this affidavit.
     I am an attorney for appellant Richard A. Rodriguez regarding a supplemental motion

to review the ruling on the amount and type of security to suspend enforcement of the
judgment pending appeal and with a request for emergency relief.
     Attached to this affidavit and made a part of this exhibit 'B' is a true and correct copy
of a "public notice sheriff sale" of the property the subject of this case which I received

from an attorney for the Appellee, JPMorgan Chase Bank, N.A.
     I have personal knowledge of the contents of this affidavit and they are true and
c~rrect.'~




                                                R. Robert Willmann, Jr.
                                                Affiant
                                                                                  u
Subscribed and sworn to before me on this 6th day of July, 2015, to which witness my hand
and seal of office.


                 3       C0mm. Exp 09/19/2016




                                                MYcommission expires:            [
                                                                           /     ' [(ff
               PUBLIC NOTICE
              SHERIFF SALE
                Real Estate
 State of Texas
 County of Bexar
By virtue of an Execution and Order of Sale
issued out of the 285th Judicial District Court
of Bexar Coun Texas on the Istday of June
2015. by the dterk thereof in the case of:
      JPMorgan Chase Bank, N.A.,.
  Successor in interest to First National
      Bank of Chica o, as Trustee
                          v3
               Richard Rodriguez
              CASE #2000-01-12923




the following property, situated in the county
of Bexar and the State of Texas and
described as follows; to writ;
15426 Fallow Ridge Drive, San Antonio
Texas, 78248 (the "Prope
more particularly described
                              ) which
                                        as:
                                  Lot 50,
                                                     is
B l o c k 2 New C i t y B l o c k 14292
DEERWOOD UNIT 4, in the City of s a d
Antonio, Bexar County, Texas, according
to the plat thereof recorded in Volume
9529, Page 224, Deed and Plat Records of
Bexar County, Texas.
 Levied on the 5th dav of June. 2015 and to
be sold to satisfy th'e judgment dated the
-Ma~c@24~201?       and,recorclgd in the minutes
of said Court in Volume 4202, Pa. 0901 in
 favor of the plaintiff: JPMorgan Chase Bank
N.A       Successor i n interest to ~ i r s t
 ~ a t h a Bank
             l       of Chica o as Trustee
recovered a ainst Richard R o ~ r uezfor i          the
sum of ~ 4 ~ l . 0 2 7 . 1 0 :attornev% fees of
$85,000 for 're resentation i n the trial
court: $20,000 for reoresentation throuah
the appeai to the court of a eals if this
c a s e i s a p p e a l e d ; $7,500              for
reoresentation at the ~ e t i t i o nfor review
state in the Supreme h u r t of Texas if a
petition for review is filed; $15,000 for
reoresentation throuah oral argument and
completion of proceeding i n the Supreme
Court of Texas if oral argument is
 necessary. with interest thereon at the rate of
5% Der annum from March 24. 2014. until
za'o'ano al costs of s ~ iand  t it-e ' ~ ~ e r ' c o s i s
of sale. toqether w'in a foreclos~reofa e n on
the abov~.describedproperty.
  I the undersl ne agen or rus ee o ex
  County, hereby give no\ic: that theBex;:
  County Commiss~onersCourt and myself do
  not warrant title nor guarantee a title policy on
  this ro erty Bexar County is giving on1 as
  mucl tige a i it has. Whatever charges tzere
  are against the roperty continue on past the
  sale. and m u 8 be taken care of by the
  purchaser. Ail prospective purchasers are ut
  on notice that the property may be subjecfto
  mortgages, liens, or other encumbrance. It is
  the responsibilit of ail Prospective Purchaser
  to determine the existence of any legal
  impediments to title on the above-described
  property. The highest bidder must
   immediate1 on the first on the first Tuesday of
  JULY, 2015 tender the cash amount the high
  bid to m self as agent of trustee for Bexar
   County Following the ratification of the sale, I
   will qive a (Trustee's Sheriff's) Deed to the
   highbidder.'
  A bidder at the sale must be re istered at the
  time the sale begins with,the Sheriff, Deputy
  Sheriff, or agent conducting the sale.
                            Given under my hand:
                                     June 5,2015
                            SUSAN PAMERLEAU
                   Sheriff of Bexar County, Texas
  June 15, 22, 29
                                   Certificate of Service

   I certify that this supplemental motion was served by–
    an electronic filing service, e-mail, and fax, to Marcie Schout, Quilling, Selander,
Lownds, Wislett & Moser, 2001 Bryan Street, Suite 1800, Dallas, Texas 75201 (attorney
for JPMorgan Chase Bank),

   on the 6th day of July, 2015.



                                             /s/ R. Robert Willmann, Jr.

                                             R. Robert Willmann, Jr.
