Petition for Writ of Certiorari — Mark Anthony Fornesa, et al., Petitioners v. Fifth Third Mortgage Company

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20324

Summary Calendar

MARK ANTHONY FORNESA; RICARDO FORNESA, JR.,

Plaintiffs

-

Appellants

V.

FIFTH THIRD MORTGAGE COMPANY, also known as

Fifth Third Bank

Defendant

-

Appellee

MARK ANTHONY FORNESA; RICARDO FORNESA, JR.,

Plaintiffs

-

Appellants

V.

FIFTH THIRD MORTGAGE COMPANY,

Defendant

-

Appellee

Appeal from the United States District Court

For the Southern District of Texas

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No. 17-20324

Before JONES, SMITH, and COSTA, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Mark Fornesa and his father, Ricardo Fornesa, Jr.,

sued Fifth Third Bank for foreclosing on a property in

violation of the automatic stay imposed during Ricardo's

Chapter 13 bankruptcy. See 11 U.S.0 § 862(a). Following a

bench trial, the district court granted judgment for Fifth

Third and held, inter alia, that plaintiffs were judicially

estopped from claiming a stay violation because Ricardo

failed to adequately disclose his assets in bankruptcy. We

AFFIRM.

BACKGROUND

In February 2010, Mark Fornesa obtained a secured

loan from Fifth Third to purchase a piece of real property.

Mark subsequently entered an equity sharing agreement

with his father. This agreement gave Ricardo an equitable

interest in the property and required Ricardo to make

payments for three years. Ricardo voluntarily made

payments pursuant to Mark's loan. Mark and Ricardo did

not record the equitable interest or inform Fifth Third.

In 2012, Ricardo sought Chapter 13 bankruptcy. In his

2012 bankruptcy schedules, Ricardo listed an equity sharing

agreement in son's house, but he did not list the property's

address or list Fifth Third as a creditor. By its own terms,

the equity sharing agreement expired in February 2013.

In January 2014, Ricardo surrendered his own

homestead in the bankruptcy and moved into son's house. In

November 2014, Mark and Ricardo stopped making

payments on the Fifth Third loan. Then, in January 2015,

Mark signed a quitclaim deed, conveying the property to

Ricardo. This deed was recorded, but Ricardo did not amend

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his bankruptcy schedules. Nor did anyone inform Fifth Third

about the transfer.

Fifth Third gave notice of default and intent to

accelerate the loan in March 2015. The loan was accelerated

and posted for foreclosure on April 6, 2015. Ricardo claims

that on April 28 he sent Fifth Third a check for the

delinquent loan payments along with a package containing

his bankruptcy papers, the quitclaim deed, and the equity

sharing agreement. Fifth Third disputes that it received the

bankruptcy documents. Fifth Third returned the check

because as of May 1, the check constituted only a partial

payment and could not bring the loan current. On May 4,

Ricardo again allegedly sent a package containing his

bankruptcy papers to Fifth Third. This package would not

have been received before May 5. The property was sold at a

foreclosure sale that afternoon. After the sale, Fifth Third

contacted Mark, indicating that he had two weeks to redeem

the property. Mark declined.

Instead, Mark and Ricardo brought a pro se lawsuit

against Fifth Third for wrongful foreclosure, violation of the

Emergency Stabilization Act, and violation of the automatic

stay under 11 U.S.C. § 362(a).' The plaintiffs sought actual

damage of $50,000 and punitive damages of $450,000. Fifth

Third removed the case to federal district court. Mark and

Ricardo filed a second lawsuit in state court, which was also

removed and consolidated with the first case. In early 2016,

Ricardo filed an adversary proceeding in bankruptcy, urging

similar arguments. The bankruptcy judge entered a report

to the district court recommending a withdrawal of the

The plaintiffs have waived their claims for wrongful foreclosure and for

violation of the Emergency Stabilization Act by failing to argue them in their

appellate briefing. See NW. Enterprises, Inc. v. City of Houston, 352 F.3d 162, 183

n.24 (5th Cir. 2003).

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reference, and the district court entered an order

withdrawing the reference. The consolidated action in

federal district court proceeded to a bench trial. The district

court held that the plaintiffs' claims lacked merit, entered

judgment for Fifth Third, and denied a motion for a new trial.

Following these orders, the district court reviewed Fifth

Third's objections to the plaintiffs' evidence and denied

admittance of several exhibits.

The plaintiffs timely appealed.

STANDARD OF REVIEW

We review a district court's determination of judicial

estoppel for abuse of discretion. Love v. Tyson Foods, Inc. 677

F.3d 258, 262 (5th Cir. 2012). "A district court abuses its

discretion if it: (1) relies on clearly erroneous factual

findings; (2) relies on erroneous conclusions of law; or (3)

misapplies the law to the facts." Id. (quoting McClure v.

Ashcroft, 335 F.3d 404, 408 (5th Cir. 2013)). We review a

district court's evidentiary rulings and denial of a motion for

a new trial under the same standard. Mourer v.

Independence Town, 870 F.3d 380, 383 (5th Cir. 2017);

United States v. Sertich, 879 F.3d 558, 562 (5th Cir. 2018).

DISCUSSION

"The doctrine of judicial estoppel is equitable in

nature and can be invoked by a court to prevent a party from

asserting a position in a legal proceeding that is inconsistent

with a position taken in a previous proceeding." Love, 677

F.3d at 261. In this way, the doctrine "protect[s] the integrity

of the judicial process." Allen v. C&H Distribs., L.L.C., 813

F.3d 566, 572 (5th Cir. 2015) (citations omitted). Judicial

estoppel has three elements: (1) the party against whom

estoppel is sought has asserted a position plainly

inconsistent with a prior position, (2) a court accepted the

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prior position, and (3) the party did not act inadvertently.

See Id. (citing Flugence v. Axis Surplus Ins. Co. (In re

Flugence), 738 F.3d 126, 129 (5th Cir. 2013)). "Judicial

estoppel is particularly appropriate where

a party fails to

disclose an asset to a bankruptcy court, but then pursues a

claim in a separate tribunal based on that undisclosed asset."

Love, 677 F.3d at 261-262 (quoting Jehroe v. Omnova Sols.,

Inc., 412 F.3d 598, 600 (5th Cir. 2005)). The district court did

not abuse its discretion in finding that Ricardo was stopped

from pursuing his claim for a violation of the automatic stay.

...

The first and second elements of judicial estoppel are

satisfied by Ricardo's failure to amend his bankruptcy

schedules to disclose the quitclaim deed or his putative

claims against Fifth Third. Chapter 13 debtors have a

continuing obligation to amend financial schedules to

disclose assets acquired post-petition. See Allen, 813 F.3d at

572 (quoting Flugence, 738 F.3d at 129). Therefore, Ricardo's

failure to fulfill his Chapter 13 duty by amending his asset

schedules "impliedly represented" to the bankruptcy court

that his financial status was unchanged. In re Flugence, 738

F.3d at 129. This was plainly inconsistent with his

subsequent assertion of an undisclosed claim based on the

undisclosed asset. Id. The bankruptcy court, moreover,

implicitly accepted the representation by operating as

though Ricardo's financial status were unchanged. See Id.

("Had the court been aware

it may well have altered the

plan.").

...

Establishing the defense of inadvertence would

require Ricardo to prove (1) that he did not know about the

inconsistency or (2) that he lacked a motive for concealment.

See Allen, 813 F.3d at 573. It is insufficient, however, for

Ricardo to have been unaware of his duty to disclose; rather,

he must have actually been unaware of the relevant

underlying facts. See id. Ricardo cannot show this lack of

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knowledge because he was aware that he had received the

quitclaim deed and aware of the basis for his claims against

Fifth Third. This court has also held that a motive to conceal

is "self evident" when a debtor fails to disclose an asset to the

bankruptcy court due to the "potential financial benefit

resulting from the nondisclosure." See id. at 574 (quoting

Love, 677 F.3d at 262). Ricardo had a motive to conceal his

changed financial status.

In sum, the district court did not abuse its discretion

in holding that Ricardo was judicially estopped from

claiming Fifth Third violated the automatic stay. For the

same reason, the district court did not abuse its discretion in

denying the plaintiffs' motion for new trial.

Nor have the plaintiffs shown that the district court

abused its discretion in excluding several of their exhibits.

These exhibits were (1) a third-party expert's appraisal of the

property at issue, (2) documents pertaining to an eviction

proceeding against the plaintiffs that was eventually nonsuited, (3) several of Fifth Third's responses to

interrogatories, (4) mailing receipts indicating when Fifth

Third received the package containing Ricardo's bankruptcy

documents, and (5) Ricardo's real estate license and his own

appraisal of the property.

The plaintiffs' briefing on the evidentiary rulings fail

to explain any legal or factual errors made by the district

court. Fifth Third objected to the third-party's appraisal and

Ricardo's appraisal because they were not adequately

disclosed during discovery.2 The plaintiffs' briefing on these

Instead, the plaintiffs merely cite Federal Rules of Evidence 703 and

705 regarding the permissible basis for expert opinion. These argument are

inapposite.

2

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exclusion does not address their tardy designation of the

evidence. Likewise, the plaintiffs have not countered Fifth

Third's objections that some exhibits were inadmissible for

lack of authentication or were irrelevant to the disputed

claims. None of the excluded evidence, moreover, bears on

the merits of Fifth Third's judicial estoppel defense.

For these reasons, we AFFIRM the judgment of the

district court.

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No. 17-20324

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MARK ANTHONY FORNESA; RICARDO FORNESA JR.,

Plaintiffs

-

Appellants

V.

FIFTH THIRD MORTGAGE COMPANY, also known as

Fifth Third Bank

Defendant Appellee

-

MARK ANTHONY FORNESA; RICARDO FORNESA JR.,

Plaintiffs

-

Appellants

V.

FIFTH THIRD MORTGAGE COMPANY,

Defendant

-

Appellee

On Appeal from the United States District Court, Southern

District of Texas

On Appeal from the United States District

Court, Southern District of Texas

PETITION FOR REHEARING EN BANC

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CERTICATE OF INTERESTED PERSONS

The undersigned pro se plaintiffs of record for

Appellants Ricardo Fornesa Jr. and Mark Anthony Fornesa

certify that the following listed persons and entities as

described in the fourth sentence of Rule 28.2.1 have an

interest in the outcome of this case. These representations

are made in order that the judges of this Court may evaluate

possible disqualification or recusal.

Appellants

Appellees

Ricardo Fornesa Jr.

Fifth Third Mortgage Company

Mark Anthony Fornesa Fifth Third Bank

Entities with an interest

Counsel for Appellees

William E. Heitkamp

Matt D. manning

Chapter 13 Trustee

1001 McKinney, Ste. 1500

Houston, TX 77002

Tel. (713) 520-1900

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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ..................ii

TABLE OF CONTENTS ..............................................iii

TABLE OF AUTHORITIES ...........................................iv

STATEMENT OF THE ISSUES .....................................1

STATEMENT OF THE COURSE OF

PROCEEDINGS .................................................2

STATEMENTS OF FACTS ............................................3

SUMMARY OF THE ARGUMENT .................................7

ARGUMENT..............................................................8

FIFTH THIRD FILED SECOND DETAINER

COMPLAINT...................................................10

SUPPLEMENTAL COMPLAINTS TO

EVENTS AND DAMAGES ..................................11

EVENTS THAT OCCURRE SINCE

JANUARY OF 2018 ...........................................11

DAMAGES SUFFERED BY DEBTOR

SINCE JANUARY OF 2018 ................................12

THE DOCTRINE OF JUDICIAL ESTOPPEL .................13

QUESTIONS OF EXCEPTIONAL IMPORTANCE ..........13

CONCLUSION ..........................................................16

CERTIFICATE OF SERVICE ......................................17

CERTIFICATE OF COMPLIANCE ...............................18

Ha

TABLE OF AUTHORITIES

CASES

Alt. Sys. Concepts Inc. v. Sypnopsys Inc.,

374 F.3d 33 (5th Cir. 2004) ..................................13

Brown v. Chestnut, 422F.3d 198 (5th Cir. 2005) ................1

General Electric Co. v. Joiner, 522 U.S. 136 (S. Ct. 1997)

16

...

New Hampshire v. Maine, 532 U.S. at

750, 12 (S. Ct. 1808) ...........................................13

Reed v. City of Arlington, 620 F.3d 477,

482 (5th Cir. 2010) ............................................1, 9

STATUTES

11 U.S.C. § 362(a) ....................................................8,11

11 U.S.C. § 362(k)(1) ...................................................10

11U.S.C.362(h) .......................................................14

18 U.S.C. § 371 ...........................................................14

Penal Code Chapter 37 Sec. 37.02 ...................................6

Penal Code Chapter 37 Sec. 37.03 ...................................6

United States Constitution Fourth Amendment

of Bill of Rights .................................................11

United States Constitution Seventh Amendment

of Bill of Rights ..................................................6

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STATEMENT OF THE ISSUES

The panel's decision is contrary to holdings of the

United States Supreme Court or of the Court of Appeals

Fifth Circuit.

In particular, the opinion departed from United States

Court of Appeals Fifth Circuit and other precedents by

treating an enforcement memorandum as carrying the force

of law. In re Brown v. Chestnut, 422 F.3d 198 (5th Cir. 2005),

the Court of Appeals for the Fifth Circuit has ruled that if a

debtor asserts an interest in property, a creditor is obliged to

recognize that the automatic stay prohibits the creditor from

taking action against such property even though the debtor's

claim to the property is ultimately determined to be without

merit.

In re Reed v. City of Arlington, 620 F.3d 477, 482 (5th

Cir. 2010), the panel's decision was vacated by full court's

decision to rehear the case in banc. This proceeding has

many questions of exceptional importance on which the

panel decision conflicts with the authoritative decisions of

other United States Courts of Appeals that have addressed

the same issue of stay violation.

Rehearing is therefore necessary to assure uniformity

across the Supreme Court's and this Court's precedents and

to resolve the important issues.

STATEMENT OF THE COURSE OF PROCEEDING

AND DISPOSITION

1) Fifth Third filed a forcible entry and detainer

action in justice court on June 4, 2015, further violating the

automatic stay. This is the FIRST SUIT TO EVICT with a 3

Day Notice to Vacate in the Justice Court at Fort Bend

County, TX.

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Ricardo Fornesa Jr. and his son Mark Anthony

Fornesa filed a lawsuit against Fifth Third to get back the

title of the property in the 240th Judicial District Court on

June 23, 2015 as a response to Fifth Third's FIRST SUIT TO

EVICT, it was docketed as Case No. 15-DCV-224304.

The case was removed to Federal Court docketed as

Case No. 4:15-CV-02094 and a bench trial was conducted on

August 3, 2016 by Judge Hoyt.

Debtors Ricardo Fornesa Jr. and Cynthia Fornesa

filed Adversary Case No. 16-03041, Document #115 on

February 29, 2016 against Fifth Third.

A Pretrial Conference was set on 1/16/2018, and on

January 18, 2018, U.S. Senior District Judge Nancy F. Atlas

entered an ORDER that this case is STAYED and

ADMINISTRATIVELY CLOSED until all the Related

Litigation is fully resolved by final judgment.

On January 10, 2018, the County Court entered a

Final Judgment in favor of Fifth Third Mortgage Company

against the Registered Owners who are Debtors protected by

automatic stay pursuant to 11 U.S.C. § 362(a).

On February 28, 2018, Debtors and Registered

Owners were evicted unlawfully and lost the most basic

protection of the bankruptcy court and suffered actual

damages, physical injuries, and severe emotional distress.

On June 22, 2018, Plaintiffs filed Relators' Reply to

Appellees' Response to Petition for Writ of Mandamus with

allegations pursuant to Penal Code, Chapter 15, Section 15.2

Criminal Conspiracy, awaiting for the date of ORAL

ARGUMENT to be set by Texas Fourteenth Court of

Appeals.

-

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RICARDO FORNESA JR. is the father of Mark

Anthony Fornesa who obtained a loan from FIFTH THIRD

MORTGAGE COMPANY on February 17, 2010. On

February 28, 2010 after 11 days, RICARDO FORNESA JR.

invested in his son's property via an EQUITY SHARING OF

REAL PROPERTY between him as the INVESTOR with his

son. This Equity Sharing of Real Property is a private

agreement between father and son, so they did not inform

Fifth Third Mortgage Company with regards to this

agreement.

On September 30, 2012, Ricardo Fornesa Jr. filed

Chapter 13 and his investment in the said property totaling

$18,255.00 during that time was included on the Bankruptcy

schedules under SCHEDULE B PERSONAL PROPERTY

and SCHEDULE C PROPERTY CLAIMED AS EXEMPT

per Equity Sharing Agreement in son's house pursuant to 11

U.S.C. § 522(d)(5).

-

-

On January 8, 2015, Mark Anthony Fornesa

wanted to move closer to his job as a police officer, so he and

his wife executed a QUITCLAIM DEED in favor of Debtors

Ricardo Fornesa Jr. and Cynthia Fornesa relinquishing their

rights to the said property because they don't want the house

anymore. Debtors now owned the title of 6427 Moreland

Lane, Rosenberg property since January 8, 2015.

Fifth Third's Bank Mortgage Loan Statement dated

March 17, 2015 demanded payments for November,

December, January, February, March, and for the month of

April current payment. The statement stated that when the

amount of $7,019.22 ($6,996.99 + $22.23) is received after

April 16, 2015 but before April 30, 2015, it will be a FULL

PAYMENT to cure the default so the loan will have a

CURRENT STATUS as of April 30, 2015.

The check in the amount of $7,019.22 including the

bankruptcy case filing were received by Fifth Third on April

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29, 2015 signed for by A. Keith. Fifth Third Bank's Senior

Vice.-President, Brian P. Moore ignored the bankruptcy case

filing and the March 17, 2015 Mortgage Loan Statement and

instead returned it to Debtors on May 4, 2015 and instructed

Mackie Wolf Zientz & Mann, P.C. to pursue the Foreclosure

Sale on May 5, 2015. The property has $50,000 equity.

Despite receiving the notice of bankruptcy case

filing and the check of $7,019.22 to cure the default on April

29, 2015, seven days before the foreclosure sale date, Fifth

Third willfully violated the automatic stay that arises from

the filing of bankruptcy by foreclosing Debtors' residential

homestead.

The unlawful foreclosure was conducted on May 5,

2015 when Kendra Wiley on behalf of Fifth Third submitted

a false affidavit in a foreclosure proceeding on May 5, 2015

stating that Registered Owners and Debtors Ricardo

Fornesa Jr. and Cynthia Fornesa were not protected by

automatic stay.

According to Fort Bend Central Appraisal District

under Instrument #2015002681, the legal title of Property

R335432 was conveyed to Debtors Ricardo Fornesa Jr. and

Cynthia Fornesa by Mark Anthony Fornesa and Judy Thanh

Fornesa on January 8, 2015. After four (4) months on May 5,

2015, Instrument #2015053907 from Fort Bend Central

Appraisal District conveyed the legal title from Debtors

Ricardo Fornesa Jr. and Cynthia Fornesa to Fifth Third

Mortgage Company via willful foreclosure as part of alleged

conspiracy.

Malik Cheatam altered official record of Fort Bend

Central Appraisal District by changing the names of Ricardo

Fornesa Jr. and Cynthia Fornesa into Mark Anthony

Fornesa and Judy Thanh Fornesa as the same instrument

#2015053907 in Malik Cheatam's Foreclosure Sale Deed to

mislead the County Court in order to pursue the willful

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foreclosure and fraudulent transfer of title to Property

R335432. Tampering government records or fabricating

physical evidence with knowledge of its falsity and with

intent to affect the course of outcome of official proceeding is

forbidden by law.

A false testimony under oath was committed by

Michelle Fancher during the trial on August 3, 2016. She

testified that there were notes in the system that Plaintiffs

made multiple calls right after the foreclosure and Plaintiffs

were given two weeks to make the loan current. This was

never true because Plaintiffs never called Fifth Third after

the foreclosure. Pursuant to Penal Code Chapter 37 Sec.

37.02(1), Michelle Fancher had committed a Perjury when

she testified under oath that Plaintiffs called Fifth Third

multiple times after the foreclosure. It was a perjury if she

made a false statement under oath or swears to the truth of

a false statement previously made and the statement is

required or authorized by law to be made under oath.

Pursuant to Penal Code Chapter 37 Sec. 37.03(1), Michelle

Fancher had committed Aggravated Perjury when a false

statement was made during or in connection with an official

proceeding such as during the trial and the false statement

became a material fact.

Fifth Third filed a forcible entry and detainer

action in justice court on June 4, 2015, further violating the

automatic stay. Ricardo Fornesa Jr. and his son Mark

Anthony Fornesa filed a lawsuit against Fifth Third to get

back the title of the property in the 240th Judicial District

Court on June 23, 2015 as a response to Fifth Third's FIRST

SUIT TO EVICT and docketed as Case No. 15-DCV-224304.

It was removed to Federal Court docketed as Case No. 4:15CV-02094 and a bench trial was conducted on August 3, 2016

by Judge Hoyt although a jury trial was requested from the

very beginning of the case. Judge Hoyt ruled in favor of Fifth

Third despite the stay violation and despite Fifth Third did

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not seek relief from the bankruptcy court. Plaintiffs'

constitutional right was violated pursuant to Amendment

7 of the Bill of Rights stating that: "the right of trial by

jury shall be preserved, and no fact tried by a jury, shall be

otherwise re-examined in any Court of the United States,

than according to the rules of the common law."

SUMMARY OF THE ARGUMENT

The heart of the panel's error was when circuit judges

stated that plaintiffs waived their claims for wrongful

foreclosure and Fifth Third 's automatic stay violation by

failing to argue them in the appellate briefing. When a Court

decided the case based on an issue not briefed or proposed by

either party, the aggrieved party is entitled to rehearing. The

United States Supreme Court and Court of Appeals shall

afford either party to present their views on the matter

through supplemental briefing upon timely petition of any

party.

Another panel's clear error was when circuit judges

concluded that Debtor Ricardo Fornesa Jr. was estopped

from pursuing his claim for a violation of the automatic stay.

On the contrary, it was Fifth Third that must be estopped

from pursuing illegal seizure of foreclosing the property and

unlawfully evicting the debtors for the following reasons: (1)

Fifth Third's earlier position on First Suit To Evict and later

Second Suit To Evict position are clearly inconsistent; (2)

Fifth Third succeeded in persuading a court to accept the

earlier position; and (3) Fifth Third sought to assert the

inconsistent position and stood to derive an unfair advantage

when the new position was accepted by the court. Judge

Mary S. Ward entered an ORDER of Non-Suit on June 30,

2015 when Fifth Third filed Motion for Non-Suit but changed

position later when Judge Hoyt ruled on their favor. Judge

excluded 9 of 22 trial exhibits which were testified and

discussed during the trial on August 3, 2016 after 8 months

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via Notice of Setting on June 28, 2017. The case was decided

by Judge Hoyt on April 21, 2017.

ARGUMENT

The FIRST SUIT TO EVICT (Fifth Third's first

position) was non-suited because it was obvious that Debtors

who are the Registered Owners during the foreclosure sale

are the rightful owners of the subject property beginning

January 8, 2015. Ricardo Fornesa Jr. suffered severe

physical injury undergoing treatment by doctor specialists

because his neck and right shoulder was severely injured

during the unlawful eviction on February 28, 2018. Any act

done in violation of automatic stay is void from the outset,

and not merely voidable, unless and until stay is annulled.

11 U.S.C. § 362(a) in which Fifth Third did not seek relief

from the bankruptcy court.

The first position of Fifth Third in the First Suit To

Evict was withdrawn when they filed a Motion for Non-Suit

on June 29, 2015 admitting that they made a mistake. The

final admission is evidenced by the Declaration of Fifth

Third's counsel under oath, Philip W. Danaher, that Debtors

Ricardo Fornesa Jr. and Cynthia Fornesa hold the legal title

and possession of the property.

The FIRST SUIT TO EVICT (Fifth Third's first

position) with a 3 Day Notice to Vacate in the Justice Court

was non-suited when Debtor Ricardo Fornesa Jr. who is the

Registered Owner on record responded immediately by filing

the Original Answer stating that the property was under the

protection of automatic stay, so Fifth Third on June 29,20 15

filed a Motion for Non-Suit and Justice Court Presiding

Judge Mary S. Ward entered an Order of Non-Suit on June

30, 2015.

Fifth Third knew that the bankruptcy schedule was

properly amended on May 15, 2017 but ignored it and still

filed the SECOND SUIT TO EVICT (Fifth Third's second

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position) on August 14, 2017 after three (3) months that the

proper amendment was filed on May 15, 2017. It is Fifth

Third that the panel should invoke to prevent them from

asserting a position in a legal proceeding that is inconsistent

with a position taken in a previous proceeding. If the case

were needed to be retried, Debtors' evidence would be

considerably more robust.

In re Reed v. City of Arlington, 620 F.3d 477, 482

(5th Cir. 2010), a panel of this court, reversed, effectively

vacating the judgment against the City. "The panel held the

district court had abused its discretion by distinguishing

Lubke's conduct from that of the Trustee in applying judicial

estoppel, and concluding that the balance of equities

"disfavor[ed] permitting this litigation to continue." Reed v.

City of Arlington, 620 F.3d 477, 482 (5th Cir. 2010). This

panel opinion was vacated by full court's decision to rehear

the case en bane.

Debtors fully understand that they have a

continuing obligation to amend financial schedules to

disclose assets acquired post-petition. On May 15, 2017,

Debtors amended their schedule in Case No. 12-37238

Document #120 to modify their Chapter 13 Reorganization.

Fifth Third is the one that needs to establish the defense of

inadvertence why despite the schedules were amended

naming them as creditor, Fifth Third still filed the SECOND

SUIT TO EVICT after three (3) months which resulted

in an unlawful eviction of Debtors on February 28,

2018 in continuance of stay violation.

This oversight is indeed a very clear violation of the

automatic stay and consequences for violating the

automatic stay are, first contempt, and secondly, statutory

damages for individual injured by any willful violation of

automatic stay. "Whether" stay violation was "willful," as

required to support damages award, is question of fact, and

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bankruptcy court's determinations thereon are reviewed

for clear error. 11 U.S.C.A. § 362(k)(1).

I. FIFTH THIRD FILED SECOND UNLAWFUL

DETAINER COMPLAINT AFTER TWO YEARS

On or around August 2, 2017, Defendant Fifth Third

filed again their SECOND UNLAWFUL DETAINER

COMPLAINT and SECOND SUIT TO EVICT (Fifth

Third's second position) on August 14, 2017, further

violating the automatic stay after they non-suited the First

Unlawful Detainer Complaint and First Suit To Evict

(Fifth Third's first position) they filed on or around June 4,

2015.

SUPPLEMENTAL COMPLAINT TO EVENTS AND

DAMAGES SINCE JANUARY OF 2018

At the hearing conducted on July 26, 2018, the

complaint in the Adversary Proceeding was dismissed as a

violation of the District Court's order. However, the rulings

stated that Plaintiffs may file a Supplemental Complaint in

this case (4-page limit) referring only to events and damages

since January of 2018, by July 31, 2018 while Defendants

have to inform the Court in writing regarding application of

the automatic stay to the property in issue and status of the

bankruptcy case, by August 13, 2018. It is further ruled that

this case will be administratively closed at 5pm on July 31,

2018, until the State Court case enters final judgment, and

Judge Hoyt's case that is on appeal is completed.

EVENTS THAT OCCURRED SINCE JANUARY OF

2018

1) On January 10, 2018, the County Court entered a

Final Judgment in favor of Fifth Third Mortgage Company

against the Registered Owners who are Debtors protected by

automatic stay pursuant to 11 U.S.C. § 362(a).

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On February 28, 2018, Debtors were unlawfully

evicted in violation of automatic stay as well as their

constitutional right was also violated pursuant to

Amendment 4 of the Bill of Rights stating that: "the right

of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures,

shall not be violated."

The Appeal and Petition for Writ of Mandamus are

more than ordinary unlawful eviction disputes, and

reasonable people may differ as to whether the alleged

conduct was extreme and outrageous, so it is a question for

a jury to decide. Fifth Third's action in unlawfully evicting

Plaintiffs were extreme and outrageous because it was

"beyond the bounds of decency" and "utterly intolerable in

civilized society."

IV. DAMAGES SUFFERED BY DEBTORS SINCE

JANUARY OF 2018

On July 11, 2018, Ricardo Fornesa Jr. had the exam

for Spine Cervical Series DX that was ordered by Dr. Rodrigo

Najera, performed by CDT Luke Magilke, and verified by Dr.

Stanley Lim with findings that moderate scattered

degenerative changes. Anterior bridging osteophyte

formation seen at the C3/C4 level.

On July 11, 2018, Debtor Ricardo Fornesa Jr. had

the exam for Shoulder Series DX that was ordered by Dr.

Rodrigo Najera, performed by CDT Luke Magilke, and

verified by Dr. Santhi Maniam with findings that bony

spurring along the inferior aspect of the acromion process

can result in shoulder impingement syndrome.

On July 27, 2018, Debtor Ricardo Fornesa Jr. went

to Richmond Bone & Joint Clinic. Orthopedic specialist, Dr.

Mohammad Etminan's diagnosis from the x-ray sent by

Hermann Memorial Hospital and after physical examination

concluded that there is a Rotator Cuff Tear, Right (CD-

22a

M75.101) and Radiculopathy, Cervical Region (CD-M54.12)

and he ordered MRI on Monday, August 6, 2018. Successive

treatments of injury are currently ongoing.

V. THE DOCTRINE OF JUDICIAL ESTOPPEL

PROTECTS THE INTEGRITY OF JUDICIAL

PROCESS

The panel stated that the first and second elements of

judicial estoppel are satisfied by Ricardo's failure to amend

his bankruptcy schedules to disclose the quitclaim deed or

his putative claims against Fifth Third. Judicial estoppel

must have three elements before the court introduces this

doctrine into a particular case. First, a party's earlier and

later positions must be clearly inconsistent. Id. Alt. Sys.

Concepts, 374 F.3d at 33. Second, the party must have

succeeded in persuading a court to accept the earlier

position. New Hampshire, 532 U.S. at 750, 121 S. Ct. 1808;

Alt. Sys. Concepts, 374 F.3d at 33. Third, the party seeking

to assert the inconsistent position must stand to derive an

unfair advantage if the new position is accepted by the court.

VI. QUESTIONS OF EXCEPTIONAL IMPORTANCE

A) Did Fifth Third Mortgage Company commit a

willful automatic stay violation against Debtors' property?

The rule is: Automatic stay is an injunction that

automatically stops lawsuits, foreclosures, garnishments,

and all collections activity against the debtor the moment a

bankruptcy petition is filed. In automatic stay violation

litigation, debtors bear the burden of proof to establish by a

preponderance of evidence the following elements: (1) that a

bankruptcy petition was filed, (2) that debtors are

"individuals" under the automatic provision, (3) that

creditors received notice of the petition, (4) that creditors

action were in willful violation of the automatic stay, and (5)

that debtors suffered damages, Bankr. Code, 11 U.S.C.A. §

362(h). The facts and the evidence have met the elements of

23a

the rule. Therefore, Fifth Third is liable for automatic stay

violation.

B) Did Fifth Third commit a criminal conspiracy? The

rule is: Under the majority rule, a conspiracy is committed

when the defendant enters an agreement to commit a crime

and an overt act is done toward the commission of the target

offense. The elements of conspiracy are (1) Agreement, (2)

Two guilty minds, (3) Unlawful purpose, (4) violation of

federal law, and (5) Overt act. Kendra Wiley and Malik

Cheatam agreed and intended to act in concert to present

false affidavits to pursue the willful foreclosure. The

objective of their agreement was to commit a lawful act by

unlawful means. These conspirators have actually taken a

step towards making it a reality and the overt act resulted to

willful foreclosure and unlawful eviction of debtors. 18

U.S.C. § 371.

Michelle Fancher became a "late joiner" when she

testified under oath during the bench trial on August 3, 2016

and is responsible for any reasonable foreseeable criminal

acts done by any of the co-conspirators while the "late joiner"

is a member of the Conspiracy. Judge Hoyt and the panel

believed her testimony that plaintiffs called Fifth Third and

were given two weeks to redeem, but that is not true. Ricardo

Fornesa Jr. owned the residential homestead and the one

paying Fifth Third, so he should be the one to be contacted

by Fifth Third since he became the registered owner as of

January 8, 2015 and during the time of foreclosure. Fifth

Third should come up with the recorded telephone

conversation to find out if Michelle Fancher is telling the

truth in her testimony.

Fifth Third Bank's Senior Vice-President Brian P.

Moore is alleged to be the "brain" behind the criminal

conspiracy when he did not deposit the $7,019.22 to cure the

default as FULL PAYMENT because he received it on April

29, 2015 and not on May 5, 2015. An important feature of the

24a

Conspiracy statute is that it enables the investigator to get

beyond the first layer of visible members to find and

prosecute the "brains" behind a criminal conspiracy. Specific

federal anti-conspiracy statutes are found throughout

federal laws.

The conspiracy of Brian P. Moore, Cheatam Malik,

Kendra Wiley, and Michelle Fancher was intentional that

resulted in a willful foreclosure and unlawful eviction. The

facts and evidence have met the elements of the rule.

Therefore, Fifth Third is liable for committing criminal

conspiracy.

C) Did the lower commit an abuse of discretion? The

rule is: A judgment will be termed an abuse of discretion if

the adjudicator has failed to exercise sound, reasonable, and

legal decision-making skills. When Findings of Fact and

Conclusions of Law with regards to mix questions of fact and

law favored the plaintiff but the lower court overstepped its

boundaries of discretion by improperly denying admissible

evidence, it is an abuse of discretion. In re General Electric

Co. v. Joiner, 512 U.S. 136 (1997), the Supreme Court

reversed and remanded this instant case, because the

question whether exposure to furans and dioxins contributed

to Joiner's cancer is still open. REHNQUIST, C.J., delivered

the opinion for a unanimous Court with respect to Parts I

and II, and the opinion of the Court with respect to Part III,

in which O'CONNOR, SCALIA, KENNEDY, SOUTER,

THOMAS, GINSBURG, and BREYER, JJ., joined. BREYER,

J., filed a concurring opinion. The facts and the evidence

have met the elements of the rule. Therefore, the lower court

is liable for Abuse of discretion.

CONCLUSION

There are still a lot of unanswered questions of

exceptional importance in this case that warrant retrial so

that justice can truly prevail. For the reasons stated, the

25a

Petition for Rehearing En Bane should be granted and the

case be remanded for trial on the merits by jury.

Respectfully submitted,

Is'

RICARDO FORNESA JR.

'5'

MARK ANTHONY FORNESA

10498 Fountain Lake Dr., #1416

Stafford, TX 77477

Tel. (832) 704-2872

PRO SE PLAINTIFFS

26a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MARK ANTHONY FORNESA; RICARDO FORNESA JR.,

Plaintiffs

-

Appellants

V.

FIFTH THIRD MORTGAGE COMPANY, also known as

Fifth Third Bank

Defendant Appellee

-

MARK ANTHONY FORNESA; RICARDO FORNESA JR.,

Plaintiffs

-

Appellants

V.

FIFTH THIRD MORTGAGE COMPANY,

Defendant

-

Appellee

On Appeal from the United States District

Court, Southern District of Texas

ON PETITION FOR REHEARING

AND REHEARING EN BANC

(Opinion July 27, 2018, 5 Cfr.,

__

F.3d

)

27a

Before JONES, SMITH, and COSTA Circuit Judges.

PER CURIAM:

(X) The Petition for Rehearing is DENIED and no

member of this panel nor judge in regular active

service on the court having requested that the court

be polled on Rehearing En Banc, (FED. R. APP. P. and

5th CIR. R. 35) the Petition for Rehearing En Banc is

also DENIED.

()

The Petition for Rehearing is Denied and the court

having been polled at the request of one of the

members of the court and the majority of the judges

who are in regular active service and not disqualified

not having voted in favor, (FED. R. APP. P. and 5th

CIR. R. 35) the Petition for Rehearing En Banc is also

DENIED.

()

A member of the court in active service having

requested a poll on the reconsideration of this cause

en bane, and a majority of the judges in active service

and not disqualified not having voted in favor,

Rehearing En Bane is DENIED.

ENTERED FOR THE COURT:

Is'

EDITH JONES

UNITED STATES CIRCUIT JUDGE

28a

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MARK ANTHONY FORNESA, et al., §

Plaintiffs,

§

vs.

§ CIVIL ACTION

FIFTH THIRD MORTGAGE CO.

§ No. 4:15-cv-02094

a/k/a Fifth Third Bank

§

Defendant.

§

ORDER

Pending before the Court is the defendant's, Fifth

Third Mortgage Company a/k/a Fifth Third Bank (the

"defendant"), motion for summary judgment. (Dkt. No. 24).

The plaintiffs, Mark Anthony Fornesa and Ricardo Fornesa,

Jr. (collectively, the "plaintiffs"), proceeding pro Se, have filed

responses in opposition to the defendant's motion (Dkt. Nos.

25, 29, & 30), and the defendant has filed a reply. (Dkt. No.

27). After having carefully considered the parties'

submissions, the record and applicable law, the Court

determines that the defendant's motion for summary

judgment should be DENIED.

This ruling is supported by the pleadings, motions,

admissions and other submissions on file, which indicate

that, at the very least, given the demanding strictures

applicable on a motion for summary judgment, disputed fact

issues remain that cannot simply be resolved on summary

judgment regarding, inter alia, whether a cognizable

property interest exists vis-à-vis the plaintiff, Ricardo

Fornesa's, ownership interest in the subject property that is

2 9a

protected by bankruptcy or otherwise. Accordingly, it is

therefore, ORDERED that defendant's motion for summary

judgment is DENIED.

It is so ORDERED.

SIGNED on this 28th day of June, 2016.

Is'

Kenneth M. Hoyt

United States District Judge

30a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MARK ANTHONY FORNESA, et al., §

Plaintiffs,

§

vs.

§ CIVIL ACTION

FIFTH THIRD MORTGAGE CO.

§ No. 4:15-cv-02094

Fifth Third Bank

§

Defendant.

§

ORDER

The Court, after considering the motion for default

judgment of the plaintiffs, Ricardo Fornesa, Jr. and Cynthia

Fornesa, and the pleadings on file, the Court finds that the

motion should be DENIED.

It is so ORDERED

SIGNED on this 23rd day of February, 2017.

Is!

Kenneth M. Hoyt

United States District Judge

31a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MARK ANTHONY FORNESA, et al., §

Plaintiffs,

§

VS.

§ CIVIL ACTION

FIFTH THIRD MORTGAGE CO.

§ No. 4:15-cv-02094

Fifth Third Bank

§

Defendant.

§

MEMORANDUM FINDINGS OF FACT AND

CONCLUSIONS OF LAW

Before the Court for trial without a Jury is the

plaintiffs', Mark Anthony Fornesa ("Mark") and Ricardo

Fornesa, Jr. ("Ricardo"), suit against the defendant Fifth

Third Mortgage Co. and Fifth Third Bank ("Fifth Third")

that arises out of a home loan obtained by Mark Anthony

Fornesa and his wife Judy Thanh Fornesa ("Judy"). The

Court received the testimony and documentary evidence

presented by the parties and determines that the plaintiffs'

suit is unmeritorious and should be dismissed, thereby

permitting the defendant to foreclose the mortgage.

The facts supporting the Court's determination in this

case show that Mark and Judy obtained a loan in the amount

of $107,350 on or about February 17, 2010, to secure a parcel

of property located at 6427 Moreland Lane in Rosenberg,

Fort Bend County, Texas ("Rosenberg Property"). Beginning

in November 2014, Mark and Judy ceased making payments

on their loan and, therefore, the note went to default. Mark

and Judy vacated the property in December 2013, because it

32a

was not habitable. See Memorandum Opinion, Bkcy. Cause

12-37238-1-13-13, Findings of Fact].

Ricardo, the father of Mark, and Mark together into a

document entitled "Equity Sharing Agreement" dated

February 28, 2010. This agreement reflected funds allegedly

paid to Mark and Judy in order that they might meet their

closing costs or down payment obligations in the Rosenberg

property. Neither Ricardo, Mark, Judy or Ricardo's wife,

Cynthia, informed Fifth Third of the Agreement and the

funds allegedly provided by Ricardo at the time of Mark and

Judy's purchase of the parcel, or at the time the loan was

processed in February 2010, or prior to Fifth Third's

foreclosure. Ricardo testified that he made monthly note

payments for Mark and Judy, and that after they moved out

of the property, he and his wife, Cynthia, moved in. However,

neither Mark nor Ricardo recorded the Agreement in the real

estate records of Fort Bend County, Texas. Nor did either of

the parties otherwise inform Fifth Third of the underlying

transaction and the use of property.

In September of 2012, Ricardo and Cynthia sought

Chapter 13 Bankruptcy. This proceeding was his second filed

bankruptcy. A plan was confirmed on April 25, 2013. The

previous filing occurred in May of 2007. In his 2012

bankruptcy, Ricardo failed to list Fifth Third as a creditor;

therefore, Fifth Third did not receive notice of Mark/Ricardo

Agreement. While Ricardo listed the Agreement as an asset

in the personal property section, there was no indication that

the asset was secured by the Rosenberg Property.

Subsequent amendments by Ricardo to his bankruptcy

schedules also failed to properly disclose the alleged

relationship.

On February 28, 2013, the Equity Sharing Agreement

expired by its own terms. In the meantime, Ricardo and

Cynthia began occupying the property and made

intermittent payments to Fifth Third in behalf of Mark and

33a

Judy. A notice of default and intent to accelerate dated

March 15, 2015, was sent to Mark and Judy at their last

known address. However, they did not respond and neither

did Ricardo and Cynthia. Subsequently, the loan was

accelerated by Fifth Third on April 6, 2015, notice. Ricardo

forwarded a partial payment to Fifth Third on May 1, 2015.

That payment was promptly returned, and Fifth Third

foreclosed its lien on May 4, 2015.

III.

The evidence also shows that Mark and Judy executed

a quit claim deed in favor of Ricardo and Cynthia on January

28, 2015, and recorded same in the real estate records of Fort

Bend County, Texas. This transaction constitutes a breach

of the terms of the promissory note that Mark and Judy

executed in 2010. Neither Mark nor Ricardo sought

permission or consent for the transfer of Mark and Judy's

interest in the property from Fifth Third in advance of the

transfer. Therefore, the Court HOLDS that the transfer is

voided by Fifth Third's foreclosure on May 4, 2015.

Texas law applies to this action. Neither Mark nor

Ricardo has stated a valid common law cause of action for

wrongful foreclosure. See Sauceda v. GMAC Mortgage, 268

S.W. 3d 135, 139 (Tex. App. Corpus Christi 2008, no pet.)

Fifth Third's lien against the property is a superior lien and,

therefore extinguishes any inferior claim(s) [cite].

-

Ricardo also insists that the Emergency Economic

Stabilization Act of 2008, is a bar to Fifth Third's foreclosure.

Ricardo's reliance is misplaced as Fifth Third is not a

designated entity under the Act. See 12 U.S.C. § et. seq.

(2010). Therefore, this claim fails.

Finally, Ricardo argues that Fifth Third's foreclosure

violated the automatic stay that he contends was in force as

a result of his 2012 bankruptcy proceeding. The evidence

shows that Ricardo did not seek bankruptcy protection as it

34a

relates to the Rosenberg Property. See ii U.S.C. § 362(a)(3).

He made no reference to the property except as a cash

interest appears on his bankruptcy schedules and cannot

now point to a benefit that, if disclosed properly, would have

changed the course of the bankruptcy case. Such conduct

cannot and should not be tolerated. See In re Clayton, 235

B.R. 801, 806-07 (Bankr. M.D., N.C. 1998). And, Mark and

Judy did not seek § 362 protection. Therefore, there is no

claim that can be made under the statute as a violation. As

well, Ricardo is estopped from claiming a § 362 violation. See

Love v. Tyson Foods, Inc. 677 F.3d 258, 261 5th Cir. (2012).

It is so Ordered.

SIGNED on this 23rd day of March, 2017.

Is'

Kenneth M. Hoyt

United States District Judge

35a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MARK ANTHONY FORNESA, et al., §

Plaintiffs,

§

vs.

§ CIVIL ACTION

FIFTH THIRD MORTGAGE CO.

§ No. 4:15-cv-02094

Defendant.

§

FINAL JUDGMENT

Pursuant to Memorandum of Findings of Fact and

Conclusions of Law, the plaintiffs shall take nothing their

suit.

This is a Final Judgment.

SIGNED on this 23rd day of March, 2017.

Is!

Kenneth M. Hoyt

United States District Judge

36a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MARK ANTHONY FORNESA, et al., §

Plaintiffs,

§

vs.

§ CIVIL ACTION

FIFTH THIRD MORTGAGE CO.

§ No. 4:15-cv-02094

Defendant.

§

ORDER

Pending before the Court is the plaintiffs', Ricardo

Fornesa, Jr. and Mark Fornesa, motion for new trial (Dkt.

No. 50). After having considered the motion and the pleading

on file, the Court finds that there is no basis to reopen the

case. The Court is of the opinion that the plaintiffs' motion

for a new trial is DENIED.

It is so ORDERED.

SIGNED on this 21st day of April, 2017.

Is'

Kenneth M. Hoyt

United States District Judge

37a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MARK ANTHONY FORNESA, et al., §

Plaintiffs,

§

VS.

§ CIVIL ACTION

FIFTH THIRD MORTGAGE CO.

§ No. 4:15-cv-02094

Defendant.

§

NOTICE OF SETTING

The parties are hereby notified that a status

conference is set for June 28, 2017 at 9:00 a.m. and will be

handled as a telephone conference. The parties are directed

to contact the Court at 713-250-5126 in order to participate

in the conference call.

Date: June 14, 2017

Is'

DAVID BRADLEY, CLERK

By: C. Horace, Case Manager to

Judge Kenneth M. Hoyt

38a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MARK ANTHONY FORNESA, et al., §

Plaintiffs,

§

vs.

§ CIVIL ACTION

FIFTH THIRD MORTGAGE CO.

§ No. 4:15-cv-02094

Defendant.

§

NOTICE OF SETTING

Pursuant to inquiry from the Fifth Circuit Court of

Appeals, the Court conducted a hearing in an effort to correct

errors of the Court concerning the handling of the plaintiffs

and defendant's exhibit lists [a transcript of the hearing is

on file].

At the time of the trial, there were outstanding

objections of the plaintiffs' exhibits made by the defendant

and reflected in DE#s 43 and 46. The Court failed, through

inadvertence, to rule on the defendant's objections. The

Court, after review, determines that the defendant's

objections to the plaintiffs' exhibits 4, 10 through 13, 15 and

20-21 and 22 are meritorious and that they should be

Sustained. The remainder, exhibits 1, 2, 3, 5, 6, 7, 8, 9, 14,

16, 17, 18 and 19, are admitted [See DE 74].

The defendant's exhibits 1-20 are admitted and the

Court's ruling is reflected in the trial transcript. See also

[DE# 71].

The plaintiffs and defendant have also filed other post

trial documents [DE#s 72 and 73] that are either duplicates

of documents on file as exhibits or constitute inappropriate

39a

supplementations of the record. These documents are

STRICKEN from consideration.

It is so ORDERED.

SIGNED on this 21st day of April, 2017.

/5'

Kenneth M. Hoyt

United States District Judge

40a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

RICARDO FORNESA JR. and

§

CYNTHIA FORNESA,

§

Plaintiffs,

§

vs.

§

CASE NO.

FIFTH THIRD BANK and FIFTH

§

4:17-cv-2728

THIRD MORTGAGE COMPANY

§

Defendants.

§

ORDER

On January 16, 2018, the Court held a pretrial status

conference in this case. See Hearing Minutes and Order

dated December 18, 2017 [Doe. # 18]. The parties discussed

an appeal currently pending before the Fifth Circuit in

related matters (the "Fifth Circuit Appeal"), all of which

concern Plaintiff Ricardo Fornesa's claims arising from a

2015 foreclosure on the deed of trust covering the property

in issue in this case (the "2015 foreclosure"). The Court also

was made aware that Plaintiffs Ricardo and Cynthia

Fornesa continue to reside at the property in issue in this

case and are the subject of eviction proceedings pending in

Texas court (the "State Court Action," and, together with the

Fifth Circuit Appeal, the "Related Litigation"). Mr. Ricardo

Fornesa made clear it that they expect to appeal any result

adverse to them in the Related Litigation.

The Court warned Plaintiff Ricardo Fornesa, who

stated he was appearing on behalf of himself and his wife,

41a

Cynthia Fornesa, on the record at the conference that

Plaintiffs may not file any new lawsuits challenging the 2015

foreclosure. The Court repeats that warning in this Order.

As stated at the conference, any new lawsuits pertaining to

the 2015 foreclosure over which the federal court have

jurisdiction will be referred to the undersigned and likely

will result in sanctions.

Because of the pendency of the Related Litigation, it

is hereby ORDERED that this case is STAYED and

ADMINISTRATIVELY CLOSED until all the Related

Litigation is fully resolved by final judgments. Upon final

resolution of the Related Litigation, either party may move

the Court to restore this case to its active docket. It is further

ORDERED that the parties jointly, if possible, shall

(i) provide the Court with an update as to the status of the

Related Litigation every one hundred twenty (120) days

following the date of this Order and (ii) shall notify the Court

of any rulings in the Related Litigation as promptly as

practicable.

SIGNED at Houston, Texas, this 18th day of January,

2018.

Is!

NANCY F. ATLAS

SENIOR UNITED STATES DISTRICT JUDGE

42a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

RICARDO FORNESA JR. and

§

CYNTHIA FORNESA,

§

Plaintiffs,

§

vs.

§

CASE NO.

FIFTH THIRD BANK and FIFTH

§

4:17-cv-2728

THIRD MORTGAGE COMPANY

§

Defendants.

§

ORDER TO SHOW CAUSE

On January 16, 2018, the Court held a pretrial status

conference in this case. See Hearing Minutes and Order

dated December 18, 2017 [Doc. # 18]. At the conference, the

Court warned Plaintiff Ricardo Fornesa, who stated he was

appearing on behalf of his wife, Cynthia Fornesa, on the

record that Plaintiffs may not file any new lawsuits

challenging the 2015 foreclosure on the deed of trust

covering the property in issue in this case. Plaintiffs were

warned further that any new lawsuits pertaining to the 2015

foreclosure over which the federal courts have jurisdiction

would be referred to the undersigned and likely would result

in sanctions. The Court. repeated that warning in an Order,

dated January 18, 2018 [Doc. # 26], staying and

administratively closing this case until certain related

matters pending before the Fifth Circuit and in Texas state

court are finally resolved.

On July 17, 2018, Defendants filed a status report

[Doc. # 28] informing the Court that on June 13, 2018,

Plaintiffs filed a new adversary proceeding in the United

43a

States Bankruptcy Court for the Southern District of Texas

pertaining to the same 2015 foreclosure in issue in this case.

It is hereby

ORDERED that on or before July 25, 2018, Plaintiffs

shall file an advisory with the Court SHOWING CAUSE

why they should not be sanctioned for violating the Court's

Order dated January 16, 2018 and January 18, 2018, which

expressly prohibit Plaintiffs from filing any new lawsuits

challenging the 2015 foreclosure in issue in this case. It is

further

ORDERED that Plaintiffs and counsel for

Defendants shall appear before the Court at 3:00 p.m. on

July 26, 2018, for a hearing regarding this Order to Show

Cause.

SIGNED at Houston, Texas, this 18th day of July,

2018.

Is!

NANCY F. ATLAS

SENIOR UNITED STATES DISTRICT JUDGE

44a

HEARING MINUTES AND ORDER

Cause Number:

17CV2728

Style:Ricardo Fornesa, Jr. et al. V. Fifth Third Bank, et al.,

Appearances:

Counsel:

Representing:

Ricardo Fornesa, Jr./Cynthia Fornesa

Plaintiffs

Amanda Laviage

Defendant

Date: July 26, 2018

ERO: Yes

Time: 3:33 p.m.

Interpreter:

-

4:03 p.m.

At the hearing the Court made the following rulings:

Show cause hearing held.

The court withdraws the reference of the adversary case.

This district court case is re-opened as of July 17, 2018.

The complaint in the adversary proceeding is dismissed as a

violation of this Court's orders.

Plaintiffs may file a supplemental complaint in this case (4page limit) referring only to events and damages since

January 2018, by July 31, 2018.

Defendants to inform the Court in writing regarding

application of automatic stay to the property in issue and

status of the bankruptcy case, by August 13, 2018.

45a

This case will be administratively closed at 5pm on July 31,

2018, until the State Court case enters final judgment, and

Judge Hoyt's case that is on appeal is completed.

SIGNED at Houston, Texas this 26th day of July, 2018.

Is'

NANCY F. ATLAS

SENIOR UNITED STATES DISTRICT JUDGE

46a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

RICARDO FORNESA JR. AND

§

CYNTHIA FORNESA,

§

Plaintiffs,

§

vs.

§

CASE NO.

FIFTH THIRD BANK and FIFTH

§

4:17-cv-2728

THIRD MORTGAGE COMPANY,

§

Defendants.

§

JOINT STATUS REPORT

Plaintiffs Ricardo Fornesa Jr. and Cynthia Fornesa

(hereinafter referred as "Plaintiffs" or "Debtors") and

Defendants Fifth Third Bank and Fifth Third Mortgage

Company (collectively referred as "Defendants" or "Fifth

Third") submit this Joint Status Report, pursuant to the

Court's January 18, 2018 Order, and would respectfully

show as follows:

STATUS OF RELATED PROCEEDINGS

Case No. 17-20324 (the appeal of 4:15-cv-02094,

Judge Hoyt) has been ruled by the Fifth Circuit in favor of

Defendant Fifth Third on July 27, 2018.

Plaintiffs filed for Petition for Rehearing En Banc

and submitted 20 copies as per request of Fifth Circuit for

review, alleged that the panel's error was committed when

3-panel judges stated that plaintiffs waived their claims for

wrongful foreclosure and Fifth Third's automatic stay

47a

violation by failing to argue them in the appellate briefing.

Attached is Exhibit "A".

Plaintiffs asserted that when a Court decided a case

based on an issue not briefed or proposed by either party, the

parties are entitled to rehearing and shall afford to present

their views on the matter through supplemental briefing

upon timely petition.

Debtor Ricardo Fornesa Jr. also asserted on his

Petition for Rehearing En Banc that he is the registered

owner of the property since January 8, 2015 based on a

government record, described as Instrument No.

20150022681, transferring the legal title from Mark

Anthony Fornesa and Judy Thanh Fornesa as Sellers to

Ricardo Fornesa Jr. and Cynthia Fornesa as Buyers,

properly recorded by Fort Bend County Central Appraisal

District.

Debtor Ricardo Fornesa Jr. also asserted on his

Petition for Rehearing En Banc that Malik Cheatam and

Kendra Wiley agreed and intended to act in concert to

present false affidavits to pursue the willful foreclosure. The

objective of their agreement was to commit a lawful act by

unlawful means. These conspirators have actually taken a

step towards making it a reality and the overt act resulted to

willful foreclosure and unlawful eviction of debtors pursuant

to 18 U.S.C. § 371. Malik Cheatam altered government

document, Instrument No. 2015053907, in her foreclosure

Sale Deed on May 5, 2015. According to Fort Bend County

Central Appraisal District, Instrument No. 2015053907

dated May 5, 2015, the legal title was transferred from

Ricardo Fornesa Jr. and Cynthia Fornesa as Sellers to Fifth

Third Mortgage Company as Buyer, properly recorded by

Fort Bend Central Appraisal District. Malik Cheatam

changed the names of the Ricardo Fornesa Jr. and Cynthia

Fornesa as Sellers into Mark Anthony Fornesa and Judy

Thanh Fornesa in Instrument No. 2015053907 while Kendra

48a

Wiley stated in her affidavit under oath that Debtors are not

protected by automatic stay on the time of foreclosure on

May 5, 2015.

Another clear error by the 3-panel judges was when

they concluded that plaintiffs have not countered Fifth

Third's Supplemental Objections to Plaintiffs' Trial Exhibits

on August 1, 2016 filed as Document No. 46 in TXSD, that

nine exhibits were inadmissible. On August 2, 2016, one day

before the bench trial on August 3, 2016, Plaintiffs' Response

to Defendants' Supplemental Objections was filed as

Document No. 50 in TXSD because these exhibits were

submitted several times before and during the trial.

Plaintiffs assert in Rehearing En Bane that when

Findings of Fact and Conclusions of Law with regards to

mixed questions of fact and law favored the plaintiff, but the

lower court overstepped the boundaries of discretion by

improperly denying admissible evidence, it is an abuse of

discretion.

Plaintiffs assert in Rehearing En Bane that on

August 3, 2016, plaintiffs' constitutional right was violated

pursuant to Amendment 7 of the Bill of Rights stating that:

"the right of trial by jury shall be preserved, and no fact tried

by a jury, shall be otherwise re-examined in any Court of the

United States, rather than according to the rules of the

common law. Plaintiffs from the very beginning of the case

demanded a jury trial.

Plaintiffs also assert in Rehearing En Bane that on

February 28, 2018, Debtors were unlawfully evicted in

violation of automatic stay as well as their constitutional

right was also violated pursuant to Amendment Bill of

Rights stating that: "the right of people to be secure in their

persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated." Additionally,

the eviction was alleged to be a result of criminal conspiracy.

49a

The extent of damage to Debtor Ricardo Fornesa

Jr. from the unlawful eviction resulted of personal injury

that he suffered on February 28, 2018. There will be a

surgery on Wednesday, September 19, 2018 on his right

shoulder as a result of an injury he suffered on February 28,

2018. The finding from X-ray and MRI was M54.12

Radiculopathy, cervical region; right shoulder pain status

post injury on February 28, 2018; right rotator cuff tear.

Debtor Ricardo Fornesa Jr. is also undergoing

continuous treatment for his neck pain as a result of X-ray

and MRI described as: Cervical radiculopathy M54.12

neck pain. The C2-3: Large focal central and left paracentral

disc herniation.

-

-

Plaintiffs have appealed as far as possible, so they

are now appealing to the U.S. Supreme Court. Their next

step is to prepare a "petition for certiorari." This is the

document the Supreme Court will read in order to decide

whether to hear a case. In this document, plaintiffs will

include a history of the case, the basic facts, and the

important legal issues that their case presents. Fifth Third

will also have a chance to file a response, and other

interested parties may file briefs in support or against the

petition. Their file will go to a pool of Supreme Court clerks,

who will review all of the documents, summarize them for

the justices, and include a recommendation on whether to

take the case or not.3

The Fifth Circuit denied the petition for rehearing

en banc on September 5, 2018.

The appeals of the two state court eviction matters

are fully briefed pending before the 14th Court of Appeals of

Paragraphs 1-12 are the contribution of the Plaintiffs.

Paragraphs 13-14 are the contribution of the Defendants.

50a

Texas. To date, that Court has not issued an opinion in either

matter.

Respectfully submitted,

Is!

RICARDO FORNESA JR.

Is!

CYNTHIA FORNESA

10498 Fountain Lake Drive, Apt. 1416

Stafford, TX 77477

Tel. (832) 704-2872

ricardo.fornesajr@aol.com

PRO SE PLAINTIFFS

Is'

MATT D. MANNING

State Bar No. 24070210

Federal I.D. No. 1057428

1001 McKinney, Suite 1500

Houston, Texas 77002

Telephone: (713) 520-1900

Telecopier: (713 520-1025

mmanning@mcglinchey.com

ATTORNEY-IN-CHARGE FOR

DEFENDANT FIFTH THIRD

51a

FORT BEND COUNTY CENTRAL APPRAISAL DISTRICT

Property

Owner

Property Address

R335432

FIFTH THIRD

6427 MORELAND LANE

MORTGAGE CO. ROSENBERG, TX 77469

SALES HISTORY

DEED

DATE

SELLER

BUYER

5/5/2015

Fornesa, Ricardo

Fifth Third 2015053907

Jr. & Cynthia S

Mortgage

Fornesa, Mark

Fornesa, R. 2015002681

Anthony & Judy

& Cynthia S

1/8/2015

2/12/2010

INSTRUM. #

Sec. of Housing & Fornesa, M 2009057291

Urban Dev'pment & Judy Tha

5/12/2009

Wells Fargo Bank Sec. of HUD 2009057291

5/5/2009

Rubio Mario E

Wells Fargo 2009055650

& Eliud

Bank NA

Lennar Homes

Lennar Ho

Construction

Marketing

Lennar Homes

Rubio, Mar 2007053768

Marketing

& Eliud

4/27/2007

4/27/2007

2007053767

52a

Date

Book/Instrument

Seller

10/10/2018 Secretary of Housing

2018114974

12/29/2015 Fifth Third Mortgage Co.

2018085577

05/05/2015 Fornesa Ricardo Jr &Cynthia 2015053907

Property ID and Legal Owner Information

Description

Secretary of Housing and

R335432 Tax Year:2018 Urban Development

6625-02-001-0340-901

2401 NW 23rd ST STE #ID

Rosehaven Sec 2,

Oklahoma City, OK 73107-2421

BLOCK 1, Lot 34

Market Value: $168,060

6427 Moreland Lane

Assessed Value: $168,060

Rosenberg, TX 77469

Card Printed: 11/27/2018

DISCLAIMER

Every effort has been made to offer the most current and

correct information possible on these pages. The

information included on these pages has been complied by

County staff from a variety of sources, and is subject to

change without notice. The Fort Bend Central Appraisal

District makes no warranties or representations

whatsoever regarding the quality, content, completeness,

accuracy or adequacy of such information and data. The

Fort Bend Central Appraisal District reserves the right to

make changes at any time without notice. Original

records may differ from the information on these pages.

Verification of information on source documents is

recommended.