J.M. Arpad Lamell v. Indymac Mortgage Servises F.S., A division of One West Bank, FSB, a Foreign Corporation.
Annotate this Case
Download PDF
]F]rLED ]~N 14th COURT OF APPEALS HOUSTON TEXAS JAN 07 2013 NO. 14-12-00412-CV CHRISTOPHER A. PRINE CLERK IN THE COURT OF APPEALS FOURTEENTH DISTRICT OF TEXAS HOUSTON J. M. ARPAD LAMELL, Appellant V INDYMAC MORTGAGE SERVICES, A DIVISION OF ONEWEST BANK, FSB Appellee RESPONSE IN SUPPORT OF APPELLANT S MOTION FOR REHEARING AND TO EXTEND TIME TO FILE APPELLANT S BRIEF AND IN OPPOSITION TO APPELLEE ONEWEST BANK S RESPONSE IN OPPOSITION TO SAME TO THE HONORABLE COURT OF APPEALS: Comes now Appellant J. M. ARPAD LAMELL (hereinafter called "Appellant") and respectfully requests that he be granted a rehearing of the November 13, 2012 order of dismissal of this cause and on rehearing be granted an extension of time in which to file his brief as an Appellant so that if his brief is filed within 4 weeks from date of this motion it will be considered timely filed, and as grounds for such would show as follows: Order Being Appealed This is an accelerated appeal of that one certain order, Order Denying Plaintiff s Application for Temporary Injunction signed April 10, 2012 by the Honorable R. K. Sandill, Judge Presiding of the 127th District Court of Harris County, Texas under that court s cause number 2010-11491 styled J. M. ARPAD LAMELL v. INDYMAC MORTGAGE SERVICES, a division of ONE WEST BANK, FSB, a foreign corporation. II. Appellate Timetable Appellant, by and through his former attomey of record, Mr. Shawn Casey, perfected his accelerated appeal on April 30, 2012. On May 31, 2012 the Clerk s Record was filed with this Honorable Court. On June 4, 2012 the Reporter s Record was filed. III. Appeal Dismissed August 21, 2012 After notice to all counsel that this appeal was subject to dismissal for lack of prosecution, this appeal was in fact dismissed by this Court on November 13, 2012 due to Appellant s failure to timely file a brief. IV. Rehearing Motion Filed Within 15 Days of September November 28, 2012 Due Date Appellant s motion for rehearing was filed on Wednesday November 28, 2012. This motion for rehearing was filed within 15 days after the rehearing motion was allowed without leave of Court. 2 Grounds for Extension As the Court well knows, and as counsel for IndyMac has laid out in its Response in Opposition to Appellant s request for rehearing and extension, Appellant s grounds for extension heretofore have been based on Mr. Casey s steadily worsening medical condition through Parkinson s disease. As a result, he has been unable to do the work required to prosecute Appellant s case on a timely basis. However, beyond having become unable to do the actual legal work required, at least up until the filing of Appellant s present request for extension, Mr. Casey also failed to recognize the full extent of his disability and the effect it has had and is having on his relationship to that work and to his duties to Appellant. Simply put, Mr. Casey lied to Appellant. He never informed Appellant of the full extent and progress of his disease. Instead, he kept him in the dark as to the actual status of his appeal and the various extensions that he had obtained and that he expected to obtain. At every turn, Mr. Casey advised Appellant that he need not worry about the missed or imminent deadlines and that the required extensions could and would be granted as a matter of course, either because of statutory grace periods and allowances, or because of his good standing and reputation before the Court in his other dealings with it. Appellant did not learn of these circumstances until this morning, Monday January 7. Response to Appellee s Opposition to Extension Request As a result of Mr. Casey s result to properly to properly inform Appellant, he now stands on the brink of losing his house, his underlying case, his appeal, and his very well-being, all because he relied on Mr. Casey s promises that his appeal was "under control". Appellant s case 3 is meritorious and substantial documentation exists to support his claims of wrongdoing by Defendants. Should the Court deny Appellant s request for Extension and Re-hearing, no other recourse or remedy would be available to Appellant to recover from the damages or losses that he would incur. Although substantial grounds for malpractice claims exist, no such action could ever set matters right in any useful manner. VII. No Harm to Appellee Appellant currently has posted a supersedeas bond as required by the trial court to cover any potential loss if the Appellant should lose this appeal. Appellant knows of no prejudice to Appellee s rights if this request is in all things granted. Appellee, in its reply to the present Request for re-hearing, indicates that it would suffer actual harm. Appellant disputes this because, not only is he posting supersedeas bond set by the trial court, but also the loan amount which Appellee seeks to enforce is less than the value of the property that stands as security for the note. Furthermore, the legal fees of which they complain are of their own making by the fact that they are trying to enforce a loan in which they have no pecumary interest. VIII. Counsel to be replaced immediately Appellant s Counsel has finally taken the filing of this Motion as the opportunity to advise all parties that, upon completion of the brief in this cause, he would retire from the practice of law and go on disability. He represents that his Parkinson s Disease, with its 4 degenerative nature, has reached the point where he can no longer accomplish what is necessary on a timely basis to advocate on Appellant s behalf. However, it has become clear to Appellant (and, belatedly to Mr. Casey) that no amount of time will be sufficient for him to carry this case forward. Something more decisive needs to be done immediately. Correspondingly, in tandem herewith, Appellant is filing a Motion for Substitution of Counsel to carry this case forward on a pro se basis. Prayer I sincerely beg the indulgence of this Court to allow me an additional 20 days, until January 27t~, to prepare myself to handle the next steps in this case and to file the required appeal brief with the Court. Glenmeadow Drive Houston, TX 77096 713 857 2483 lamell@alum.mit.edu 5 Verification State of Texas County of Harris Before me, the undersigned Notary of Public, on this day, personally appeared J M Arpad Lamell. Upon his oath, he stated as follows: "My name is J M Arpad Lamell. I am over 21 years of age and have never been convicted of a felony or a crime of moral turpitude. My primary residence address is in Houston, Harris County, Texas. I am of sound mind and competent in all respect to make this affidavit. I have read the foregoing RESPONSE IN SUPPORT OF APPELLANT S MOTION FOR REHEARING AND TO EXTEND TIME TO FILE APPELLANT S BRIEF AND IN OPPOSITION TO APPELLEE ONEWEST BANK S RESPONSE IN OPPOSITION TO SAME. The facts set forth in this response are true and correct within my own knowledge. J M Arpad Swom and subscribed before me, the undersigned Notary Public, on this Q3(h day of January, 2013. -~~"-"~ State of Texas Notary P~~c~ iun and for the 6 Certificate of Conference As required by Texas Rule of Appellate Procedure 10. l(a)(5), I certify that I have conferred, or made a reasonable attempts to twice confer, with all other parties--which are listed below--about the merits of this motion with the following results: Christine Nowak (Attorney for Appellee Indymac Mortgage Services, a division of One West Bank FSB a foreign corporation) ~X_ opposes motion ____ does not oppose motion agrees with motion would not say whether motion is opposed __ did not return my message regarding the motion prior to filing JM 7 CERTIFICATE OF SERVICE I hereby certify that on January ~, 2013, a true and correct copy of the foregoing RESPONSE IN SUPPORT OF APPELLANT S MOTION FOR REHEARING AND TO EXTEND TIME TO FILE APPELLANT S BRIEF AND IN OPPOSITION TO APPELLEE ONEWEST BANK S RESPONSE IN OPPOSITION TO SAME was sent by e-service, certified mail, retum receipt requested, and/or hand delivery to parties of record as shown below. JM Parties: Via: e~-service [~] certified mail, RRR I- ] courier, receipted delivery IndyMac Mortgage Services, Division of One West Bank c/o Thomas M. Hanson DYKEMA Commercia Bank Tower 1717 Main Street, Ste. 4000 Dallas, TX 75201 (214) 462-6420 telephone (214) 462-6401 telecopier thanson@dykema, com www.dykema.com Via: To: I- 1 certified mail, RRR courier, receipted delivery IndyMac Mortgage Services, Division of One West Bank c/o Christine Nowak DYKEMA Commercia Bank Tower 1717 Main Street, Ste. 4000 Dallas, TX 75201 (214) 462-6432 telephone (214) 462-6401 telecopier cnowak@dykema.com www.dykema.com 8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
