The opinion
FILED IN
1ST COURT OF APPEALS
No. 01-15-00020-CV Houston,texas
MAR 312015
IN THE FIRST COURT OF APPEALS AT HOUSTON
CHRISTOPHER A. PRINE
IRISXJPHER A.
.CLERK
WILLIAM A. BALDWIN,
Appellant,
v.
LPP MORTGAGE LTD,
Appellee.
Appealed from then 295th Judicial District Court of
Harris County, Texas
APPELLANT WILLIAM A. BALDWIN'S RESPONSE TO APPELLEE LPP
MORTGAGE LTD'S MOTION TO DISMISS APPEAL FOR WANT OF JUJRISDICTION
TO THE HONORABLE JUSTICES OF SAID COURT:
NOW COMES Appellant WILLIAM A. BALDWIN ("BALDWIN") and files this
response to Appellee's Motion to Dismiss for Want of Jurisdiction pursuant to
Tex, R. App, 25.1. In support thereof, BALDWIN alleges as follows:
PROCEDURAL HISTORY
1. This case involves a dispute over Appellant's home mortgage loan. On June
23, 2014 , the 295th District Court granted final summary judgment in Cause
No. 2010-22793 in favor of LPP, from which Plaintiff appeals.
2. On July 23, 2014 Plaintiff/Appellant filed a Motion for New Trial.
3. For various reasons (the judge's involvement with other trials, etc.) the
295 District Court delayed hearing the Appellant's Motion for New Trial
for approximately eight weeks until November 14, 2014 .
4. A written order denying Plaintiff's Motion for New Trial was signed on
December 22, 2014 after County Civil Court at Law No. 3 Harris County,
Texas had issued an eviction order in Trial court Cause No. 1049938 and
Plaintiff had been evicted from his property on December 16, 2014.
5. Plaintiff filed a Notice of Appeal on January 9, 2015.
APPELLANT'S APPEAL IS NOT UNTIMELY
6. In granting the summary judgment against the plaintiff/appellant, the 295th
District Court relied on a summary order of foreclosure that was void. (See
attached Exhibit A—Plaintiff's Motion for New Trial.)
7. A void judgment is like fraud—it vitiates everything it touches. A judgment
cannot be granted based on an earlier void judgment. (See attached
Exhibit B—Plaintiff's Supplemental Brief in Support of his Motion for New
Trial.)
8. The general rule that summary judgments can be upheld on any proper
basis in the summary judgment record or evidence does not apply to void
judgment s . Reliance on a void judgment to grant another judgment is
fundamental error and presumed harmful (See Browning v. Prostok, 165
S.W. 3d 336,346 (Tex.2005).
9. The summary order did not have to be appealed. A void order or
judgment—going beyond a court's subject matter jurisdiction—can be
attacked at any time.
10. If a void judgment can be attacked at any time, the time frame set forth in
the appellee's motion has no relevance. The present appeal is therefore
timely, and this Court should not dismiss the appeal for want of jurisdiction.
WHEREFORE, PREMISES CONSIDERED, BALDWIN prays that this.Court dismiss
the appellee's Motion to Dismiss Appeal for Want of Jurisdiction and for such
other and further relief to which BALDWIN may show himself justly entitled.
Respectfully submitted,
WILLIAM A. BALDWIN
7936 Grove Ridge Dr.
Houston, TX 77061
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the Appellant's response to Appellee's
Motion to Dismiss for Want of Jurisdiction has been served on Appellee in
accordance with Rule 9.5 of the Texas Rules of Appellate Procedure on the 31st
day of March, 2015 by fax (713) 960-1809 and by deposit into the care and
custody of the United States Postal Service in an envelope addressed to:
John H.Miller III
Gregg &Valby, P. C.
1700 W. Loop South, Suite 200
Houston, TX 77027
hj^Jju^/\ (bJUuL^i
WILLIAM A. BALDWIN
E/HI$lT A ?. t>
CAUSE NO.2010-22793 JUL 13
ft/ne;
WILLIAM A. BALDWIN IN THE DIS1$CT°C5S^^
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Plaintiff
v.
$ HARRIS COUNTY, TEXAS
LPP MORTGAGE LTD $
-th
Defendant $ 295in JUDICIAL DISTRICT
PLAINTIFF'S MOTION FOR NEW TRIAL
INTRODUCTION
(1) Plaintiff William A. Baldwin sued Defendant LPP Mortgage Ltd for
improper acceleration and foreclosure of Plaintiff's property.
(2) LPP Mortgage Ltd filed a motion for summary judgment based on res
judicata.
( 3) Due to the fact that the notice of the hearing got lost in his voluminous
paperwork on the case, Plaintiff mistook the date of the hearing on June 23 for
June 25, and was preparing an answer when he realized that the date of the
hearing had passed.
(4 The Court granted the motion for summary judgment and signed a
summary judgment for LPP Mortgage Ltd on June 23, 2014.
FACTUAL BACKGROUND FOR SUPPORTING MOTION FOR NEW TRIAL
(5) Plaintiff Baldwin sued defendant LPP Mortgage for improper acceleration and
foreclosure of Plaintiff's property on April 12, 2010 in Cause No. 2010-22792. At
all times mentioned Plaintiff was and is the owner in fee simple ofa parcel of real
property and all improvements on that property, located in Harris Country, Texas.
The parcel of real property is more particularly described as follows:
LOT TWENTY-FIVE (25) SAVE AND EXCEPT THE EAST 5 FEET IN BLOCK SIXTY-
NBINE 969) OF REPLAT OF NORTH PART OF GLENBROOK VALLEY, SECTION
TWELVE 9120 A SUBDIVISION IN HARRIS COUNTY, TEXAS, ACCORDING TO THE
MAP OR PLAT THEREOF RECORDED IN VOLUME 92, PAGE 27 OF THE MAP
RECRODS OF HARRIS COUNTY, TEXAS.
(6) While the case was still pending, an order for foreclosure was issued by the
269th Court on July 14, 2011.
(7) Believing that his original case Cause No. 2010-22793 had been dismissed
because of non-payment of filing fees, Plaintiff filed another lawsuit against LPP
Mortgage Ltd in Cause No. 2011-46393. Asummary judgment was granted in
favor of the defendant on April 12, 2012, which was based on the Summary
Foreclosure order entered by the 269th Court in Cause No. 2011-30108. (See true
and correct copy of the foreclosure order attached as Exhibit A.) (See defendant
LPP Mortgage Ltd' Motion for Summary Judgment Pg. 1 mentioning 269th order
attached as Exhibit Band Summary Judgment order for Final Judgment signed
June 23, 2014 attached as Exhibit C.)
(8) Upon learning that his original case Cause No. 2010-22793 was still pending
and not dismissed, Plaintiff, upon instruction from the Court, served the
defendant on October 8, 2013. Atrue and correct copy of the original petition
with the filing date of April 12, 2010 is attached as Exhibit D.
ARGUMENT & AUTHORITIES
(9) The Court should grant a new trial because it erred by granted the motion for
summary judgment.
(10 District courts are normally courts of general jurisdiction with power to decide
claims to title at real estate.
(11) The order of sale issued by the 269th Court was issued in aSummary
Proceeding for Foreclosure with limited jurisdiction. The Statute for Summary
Foreclosure on which the order of sale is based provides limited jurisdiction. The
District Courts have no power to try title claims in proceedings for Summary
Foreclosure.
(12) The summary judgment in Cause No. 2011-46393 was based on the Summary
Foreclosure order entered by the 269th court. That order offoreclosure could not
adjudicate Baldwin's claims to title in this case.
(13) The summary judgment in Cause No. 2011-46393 is void because it is based
on a void order. Baldwin's bonafide title dispute raised by Baldwin in Cause No.
2010-22793 was pending at the time the 269th Court signed the Order for
Foreclosure.
(14) Baldwin did not have a fair and full opportunity to litigate his claims oftitle in
Cause No. 2011-30108.
(14) The Court issuing the Order ofSale had no jurisdiction over Baldwin's title
claims.
(15) The Court issuing the summary judgment in Cause No. 2011-46393 relied on
the void Order of Foreclosure. Ajudgment which relies on a void judgment is also
void. (An order is void if it is apparent that the court "had no jurisdiction ofthe
subject matter." Browning v. Prostok, 165 S.W. 3d 336, 346 (Tex,2005). (For the
parties at bar, determining the character ofthe November 26 order is critical, as a
voidable judgment will support a plea of res judicata, Trahan v. Trahan 894
S.W.2d 113, 117 (Tex.App.-Austin 1995,writ denied), while a void judgment will
not, Lawrence Sys.,lnc. V.Superior Feeders, lnc.,880 S.W. 2d 203, 211-212 (Tex.
App. -Amarillo 1994, writ denied).
(16) Res Judicata cannot be supported by a void judgment.
PRAYER
(17 For these reasons, and in the interest ofjustice and fairness, Plaintiff asks the
Court to grant a new trial.
1*\ .
SFP rk
CAUSE NO. 2010-22793 *n>e:^j*P2 5 20ft
WILLIAM A. BALDWIN S IN THE DISTRIcTCDt*B^_ * '
Plaintiff S
V. S HARRIS COUNTY, TEXAS
LPP MORTGAGE, LTD s
Defendant s 295th JUDICIAL DISTRICT
PLAINTIFF'S SUPPLEMENTAL BRIEF IN SUPPORT OF HIS MOTION FOR NEW
TRIAL
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Plaintiff William a. Baldwin and files this supplemental brief in
support of his Motion for New Trial. In support thereof, Baldwin would show as
follows:
ARGUMENT
1. Avoid judgment is like fraud—it vitiates everything it touches. Ajudgment
cannot be granted based on an earlier void judgment.
2. The Texas Legislature limited the General Jurisdiction of the District Court
and limited the power of the District Court in Summary Foreclosure
proceedings. If any title dispute is pending in another court with proper
jurisdiction over the pending title dispute, the District Court has no power
to enter a Summary Foreclosure order and the Summary Foreclosure
proceeding must be abated. Cause No. 2010-22793 was filed on April 12,
2010, and thus was still pending on July 14, 2011, the date the Summary
Foreclosure order was issued.
3. The general rule that Summary Judgments can be upheld on any proper
basis in the summary judgment record or evidence does not apply to void
judgments. Reliance on a void judgment to grant another judgment is
fundamental error and presumed harmful. (See Browning v. Prostok, 165
S.W. 3d 336,346 (Tex.2005).
PRAYER
For the foregoing reasons, Plaintiff asks the Court to grant his Motion for New
Trial so that his claims to title in this case can be adjudicated.
Respectfully submitted,
WILLIAM A. BALDWIN,
7627 Glen Prairie
Houston, Texas 77061
713 875 9725
Plaintiff