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09-1013

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CONSTABLE JOHNNY TODD

CONSTABLE JOHNNY TODD 4
CONSTABLE JOHNNY TODD 4
4
4

CAUSE NO. 05-09-00935-CV

ROBERT JOHN WRIGHT,

§

IN THE COURT OF APPEALS

Plaintiff,

§

§

vs.

§

OF DALLAS COUNTY, TEXAS

§

EMC MORTGAGE CORPORATION,

§

FULBRIGHT & JAWORSKI L.L.P.,

§

FIFTH DISTRICT OF TEXAS

MICHAEL SWARTZENDRUBER Esq.,

§

CONSTABLE JOHNNY TODD

§

in his individual capacity,

§

Defendants.

§

JUSTICES: Thomas, O’Neill, Murphy

AFFIDAVIT OF INABILITY TO PAY COSTS

STATE OF TEXAS

§

§

COUNTY OF DALLAS

§

BEFORE ME, the undersigned authority, on this date personally appeared and properly

identified as Robert John Wright, who, being first duly sworn did depose and state as follows:

1. My name is Robert John Wright. I am over the age of eighteen and have personal

knowledge of the facts contained in this affidavit as experienced, witnessed and documented, as

they are true and correct.

2. Appellant ROBERT JOHN WRIGHT, (“Appellant/Plaintiff/Wright”) hereby files

this affidavit pursuant to Rule 20.1 of the Texas Rules of Appellate Procedure, stating under oath,

he is indigent and cannot pay, in whole or in part, any costs for court records, discovery,

transcripts, audiotapes, filing fees or any other resultant costs or materials required to perfect his

appeal and provides the following:

3.

Appellant is restrained from paying any of the costs associated with this appeal

strictly due to the damages suffered as a direct and proximate cause of the acts and omissions of

defendant/appellees.

Trial Court Grants then Overrules Plaintiff’s Inability to Pay Costs

4. On December 12, 2008, in good faith and under penalty of perjury, Wright filed,

and the trial court granted, his Affidavit of Inability to Pay Costs.

Defendants contested and a

hearing was held four months later on 4/13/09 at 9 a.m.

5. Wright arrived a few minutes before 9 a.m.

At 9:23, the entire floor of the

courthouse appeared empty except for one attorney and her client. Wright went next door to the

restroom and was back in less than one minute.

When Wright returned, counsel for Fulbright

and Todd were seated in the courtroom. Shortly thereafter the judge entered. Wright also found

it odd that when his case was called, neither attorney for the defendants announced to the court

who they were - or who they represented. Appellant believes, but can not yet confirm, that the

judge and the defense counsel were engaged in a closed chamber meeting immediately prior to

the commencement of the hearing.

Evidence

6. During the hearing, Wright submitted a letter from a state-funded healthcare

provider who has been treating him for severe Post Traumatic Stress Syndrome and Legal Abuse

Syndrome caused specifically by defendants’ acts, resulting in a drastic decline in his ability to

read, write, comprehend, or follow instructions. The letter confirmed they are providing services

at no cost due to Wright’s indigence. Wright also submitted a notarized affidavit from a friend

declaring she pays for all of Wright’s basic living expenses.

Months of Wright’s bank

statements submitted showed a constant account balance of $.56.

Income

7. Wright testified he receives approximately $50.00-$100.00 per month to pay the

costs of a mortgage servicing fraud website he founded.

8. In response, Robert Davis, counsel for Defendant Todd asked: “Isn’t that a

website that teaches people how to file lawsuits for free?” Davis made that statement knowing it

was false and Wright alleges it was used to create, and obviously did create, judicial prejudice

against Wright.

Wright invites this Court to visit the website referenced below to determine

whether Davis’ statement was true - or another documented deliberate misrepresentation to the

court.

9. Contrary to Davis’ bald assertion, Wright has always discouraged victims from

representing themselves, even knowing they have a remote chance of finding ethical and

competent legal representation that understand and comprehend the civil and criminal intricacies

of the Ponzi scheme that caused the nation’s mortgage meltdown.

10. Wright’s website http://www.msfraud.org, is widely recognized as a credible

source for information and support to those victimized by mortgage and securities fraud and

others who want to learn about the progress being made to combat this massive fraud. The site is

listed on legal websites as a resource for information and is visited by all levels of courts,

including Supreme Courts in the United States and other countries, lawyers, law firms, judges;

government, regulatory and law enforcement agencies, and has been mentioned in news articles

and on radio and television programs.

11. Describing

MSFraud.org

in

a

2007

article

written

for

the

United

States

Foreclosure Network, the author/lawyer wrote: “This site alone should keep everyone in the

industry up late at night. Nonetheless, it is a must-read to gain insight into just how serious this

problem has become”. 1

Trial Court Refuses to Strike Inadmissible Evidence - Claiming this is Not a Criminal Trial.

12. Counsel for Defendant Todd submitted alleging Wright’s assets listed during his

2005 attempt to file bankruptcy. Wright objected, and moved the court to strike those documents

as they were outdated, and more importantly, most of the assets listed were stolen, damaged,

discarded or had to be given away as a direct result of Defendants’ unlawful acts.

13. The court responded to Wright’s request to strike by stating on the record: “You

can’t move to strike; this isn’t a criminal trial”.

Wright Has No Taxable Income.

14. The damages suffered as a result of ten (10) years of the unlawful conduct leading

up to and during the unlawful eviction have extinguished Wright’s ability to make a living.

During the wrongful eviction, Constable Todd DENIED Wright and his roommate’s request to

collect the tools of their trades. Their tools and all of Wright’s supplies needed for his business

were never recovered. Interestingly, someone involved in the unlawful eviction found the key to

Wright’s lockbox and took his birth certificate, baptism certificate, Social Security card and his

mortgage, but seemingly left the rest of the contents.

15. When it should have been obvious that Wright has no income, the court inquired

about taxes. When Wright told the court he does not meet the IRS’ minimum income

requirements to file, the trial judge became visibly upset. (On three (3) separate occasions, the

IRS has verified under IRS rules that Wright does not meet the income requirements and

1

http://www.usfn.org/AM/Template.cfm?Section=Home&CONTENTID=5794&TEMPLATE=/CM/HTMLDisplay.c

fm&SECTION=Article_Library

instructed him not to file a tax return.) The court also appeared visibly disgusted by Wright’s

severely damaged economic status, but made no inquiry as to its root cause.

16. Despite all the evidence supporting Wright is indigent, the court ordered Wright

to pay the $527.00 filing fee and any other costs associated with his case. This shocking abuse

of discretion amplified an already unconscionable burden by forcing Wright to use 100% of

months of future income to pay court costs.

Appellant is forced to go on emergency food stamps.

17. The court ordering an indigent to pay court costs forced Appellant to apply to the

government-sponsored food stamp program, which was approved on July 6, 2009.

In further compliance with TRAP 20, Appellant provides the following:

18. Appellant does not qualify for a loan to pay court costs. Aside from Wright’s

inability to work due to the damages suffered, Appellant’s former credit score of 798 was

another casualty of what the Texas Eastern District court confirmed in Federal Trade

Commission vs. EMC Mortgage Corporation 2 , No. 4:08-cv-338 (E.D. Tex. Sept. 9, 2008) as

only one of Defendant EMC’s “illegal” practices. It is important to note that the FTC

investigation, lawsuit and paltry $28 Million dollar settlement, which critics allege were paid

from taxpayer Bailout funds, came about after Wright was flown to Washington D.C. in 2005 to

meet with four (4) FTC attorneys who, upon seeing the exhaustive evidence in Wright’s case

against EMC, decided to investigate.

19. It is also worth noting that earlier this year the FTC contacted Wright to inform

him they had been monitoring MSFraud.org looking for additional EMC victims and asked if he

would create a link to the FTC on his website, and ask those with evidence of EMC’s breach of

the FTC settlement to contact them. Countless people nationwide responded.

2 FTC File No.0623031

ARGUMENT

20. Rule 25.1(a) provides that a party may perfect an appeal merely by filing a notice

of appeal. Providing security for costs is no longer a prerequisite to invoking the court of

appeals' jurisdiction. Thus, an indigent party is no longer precluded from perfecting appeal and

challenging the trial court's order sustaining a contest to the party's affidavit of indigence. If a

party is required to pay for preparation of the appellate record and does not do so or make

arrangements to do so, Rule 35.3 excuses the clerk and court reporter from filing the record and

Rule 37.3(b) provides that the appeal may be dismissed for want of prosecution. (In re Arroyo,

No. 98-0152 (Tex. decided Oct. 15, 1998)

21. The Texas Supreme Court concluded however, that: “This avenue of appeal is

not adequate, however, unless the indigent party can obtain the record pertaining to the trial

court's ruling sustaining the contest to the affidavit of indigence. The court of appeals can and

should, on motion or its own initiative, require the clerk and court reporter under Rules

34.5(c)(1) and 34.6(d), respectively, to prepare and file the portions of the record necessary to

review an order sustaining a contest to an affidavit of indigence. This has been the practice for

obtaining the relevant record for mandamus review of such orders. The burden of obtaining the

relevant portions of the record in this manner should be minimal. If the court of appeals

determines that the order sustaining a contest to an affidavit of indigence should be reversed, the

appellant can then obtain a full record under Rules 34.5(c)(1) and 34.6(d), and can supplement

his or her briefing under Rule 38.7. Pending resolution of an appellant's challenge to an order

sustaining a contest to an affidavit of indigence, Rule 35.3(c) precludes the court of appeals from

dismissing the appeal for appellant's failure to file the complete record, since the failure in such

circumstances would not be appellant's fault. Arroyo (emphasis added).

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully requests this Court

GRANT this Affidavit of Inability to Pay Costs.

In the alternative and depending on the costs,

Appellant requests this Court grant a six-month leave until Appellant can collect the funds

available to pay for this appeal.

FURTHER AFFIANT SAYETH NOT.

/s/: Robert John Wright Robert John Wright

SUBSCRIBED TO AND SWORN TO BEFORE ME on this

day of September

2009 to certify which witness my hand and seal of office.

Notary Public in and for the State of Texas

CERTIFICATE OF SERVICE

I hereby certify that on this the _28_ day of September, 2009, a true and correct copy of the foregoing “Affidavit of Inability to Pay Costs” was forwarded to opposing counsels listed below by first-class mail.

Respectfully submitted,

Robert John Wright – Appellant P.O. Box 797762 Dallas, Texas 75379 (972) 955-6735

WM. LANCE LEWIS State Bar No. 12314560

Quilling, Selander, Cummiskey & Lownds, P.C.

2001 Bryan Street, Suite 1800

Dallas, Texas 75201 (214) 880-1827 (214) 871-2111 (Fax) ATTORNEY FOR APPELLEE EMC MORTGAGE CORPORATION

ROBERT J. DAVIS

State Bar No. 05543500

Matthews, Stein, Shiels, Pearce, Knott, Eden & Davis, L.L.P.

8131 LBJ Freeway, Suite 700

Dallas, Texas 75251

972-234-3400

972-234-1750

ATTORNEY FOR APPELLEE TODD

DAVID N. KITNER State Bar No. 11541500 STRASBURGER & PRICE, LLP 901 Main Street, Suite 4400 Dallas, Texas 75202

214-651-4300

214-651-4330 (Facsimile) ATTORNEY FOR APPELLEES FULBRIGHT & JAWORSKI AND MICHAEL SWARTZENDRUBER

CAUSE NO. 05-09-00935-CV

ROBERT JOHN WRIGHT,

§

IN THE COURT OF APPEALS

Plaintiff,

§

§

vs.

§

OF DALLAS COUNTY, TEXAS

§

EMC MORTGAGE CORPORATION,

§

FULBRIGHT & JAWORSKI L.L.P.,

§

FIFTH DISTRICT OF TEXAS

MICHAEL SWARTZENDRUBER Esq.,

§

JOHNNY TODD in his individual capacity,

§

Defendants.

§

JUSTICES: Thomas, O’Neill, Murphy

APPELLANT’S REQUEST FOR CERTIFICATION and SUPPLEMENTAL AFFIDAVIT OF INABILITY TO PAY COSTS OF APPEAL BASED ON NEW EVIDENCE

Jurisdictional Statement

This court has jurisdiction to make an independent judicial determination on Appellant’s request to certify that appellant is indigent under TRAP 20.1(h)(2) which states:

If the affidavit of indigence is filed in an appellate court and a contest is filed, the court may: (2) decide the contest based on the affidavit and any other timely filed documents.

AFFIDAVIT

STATE OF TEXAS

§

§

COUNTY OF DALLAS

§

BEFORE ME, the undersigned authority, on this date personally appeared and properly

identified as Robert John Wright, who, being first duly sworn did depose and state as follows:

1. My name is Robert John Wright. I am over the age of eighteen and have personal

knowledge of the facts contained in this affidavit as experienced, witnessed and documented, as

they are true and correct.

2.

Plaintiff/Appellant, Robert John Wright, hereby files his supplemental Affidavit

of Inability to Pay Costs (herein Affidavit) and Request for Certification based on new evidence

as defined by TRCP 145(a) of the Texas Rules of Civil Procedure (2005 Tex. Sup. Ct.

Amendment Misc. Docket No. 05-9156), which is recognized by the State of Texas, and states

under oath: I am indigent and cannot pay, in whole or in part, any costs for court records,

discovery, transcripts, audiotapes, filing fees or any other resultant costs or materials required to

perfect his appeal of the trial court’s final judgment entered on July 1, 2009, and provides the

following:

FACTS

3. Appellant realleges and incorporates all statements and exhibits contained in his

previous December 11, 2008 Affidavit filed with the trail court, along with his September 28,

2009 Affidavit filed with the appellate court as if fully set forth herein.

Trial Court Grants then Overrules Plaintiff’s 12/11/09 Affidavit of Inability to Pay Costs

4. On December 11, 2008, in good faith and under penalty of perjury, Appellant

filed and the trial court duly granted his Affidavit of Inability to Pay Costs. Appellee/Defendants

contested and a hearing was held four months later on 4/13/09.

The trial court sustained the

contest despite Defendants’ failure to provide any evidence or testimony to rebut Appellant’s

sworn affidavit. On 4/14/09, the trial court issued an order, but failed to state any reason or legal

basis for its decision.

5. On September 29, 2009, Appellant timely filed a separate affidavit with the

appellate court.

6.

On October 7 & 9, 2009, Appellees informally contested Appellant’s affidavit of

indigence.

7.

On

October

29,

2009,

Appellant

filed

this

request

for

certification

and

supplemental affidavit based on new evidence.

NEW EVIDENCE

8. The trial court ordering Appellant (an indigent person) to pay court costs, forced

Appellant to apply to the government-sponsored food-stamp program for emergency relief.

Appellant attests that his application for food stamps was granted on July 6, 2009 and

incorporates by reference to Exhibit A, a true and correct copy of the approval and food stamp

card issued and recognized by the State of Texas as “new” prima facia evidence to establish

Appellant is receiving government entitlements based on his indigency.

9. TRCP Rule 145(a) defines a party who is unable to afford costs “as a person who

is “presently” receiving a governmental entitlement based on indigency or any other person

who has no ability to pay costs”.

10.

Arguing

further,

Appellant

discovered

after

his

approval

of

government

entitlements, that under the Texas Department of Human Services Guidelines, Appellant was and

remains well below the monthly income standard of $1,127.00 and therefore qualified to receive

his government entitlement: (a) at the time he filed his December 2008 affidavit and; (b) at the

time the trial court overruled Appellant’s indigence.

ARGUMENT

11. In 2008, TRAP 20.1(c)(1) was revised to clarify that an affidavit of indigence

filed to proceed in the trial court without advance payment of costs is insufficient to establish

indigence of appeal; a separate affidavit must be filed with or before the notice of appeal.

12.

Appellant timely filed a separate affidavit with the appellate court and entered on

the docket on September 29, 2009.

TRAP 20.1(d)(2) directs the appellate clerk that: [If] the

affidavit of indigence is filed with the appellate clerk, the appellate clerk must send notice to the

trial court clerk, court reporter and all parties stating the deadline for filing a contest.

The

appellate court docket does not show the trial court was notified.

13. In addition, if Appellant’s filing his affidavit is in error, Subdivision 20.1(c)(3)

was revised to provide that an appellate court must give an appellant who failed to file the proper

appellate indigence affidavit notice of the defect and an opportunity to cure it before dismissing

the appeal or affirming the judgment on that basis. (Id.)

notice of defect or opportunity to cure any defect.

This Court did not send Appellant

14. Moreover, the Texas Rules of Appellate Procedures also address the filing of an

affidavit of indigence in the appellate court under TRAP 20.1(h)(2) and TRAP 20.1(d)(2).

Contesting an Affidavit of Indigence

15. If a party chooses to contest Appellant’s affidavit, that party may contest the

government

entitlement

portion

only,

and

must

provide

irrefutable

Appellant is receiving government entitlements.

evidence

to

disprove

A party’s affidavit of inability that attests to receipt of government entitlement based on indigency may be contested only with respect to the veracity of the attestation. (Id. TRCP 145 (d)) .

16. The clerk, court reporter and court recorder did not contest Appellant’s affidavit.

Under TRAP 20.1(e) the contest must be filed on or before the date set by the clerk if the

affidavit was filed in the appellate court.

Appellant’s Inability to Pay Costs of Appeal

17.

Rule 25.1(a) provides that a party may perfect an appeal merely by filing a notice

of appeal.

Providing security for costs is no longer a prerequisite to invoking the court of

appeals' jurisdiction. Thus, an indigent party is no longer precluded from perfecting appeal and

challenging the trial court's order sustaining a contest to the party's affidavit of indigence. (Id.)

18. Formerly, “if a party is required to pay for preparation of the appellate record and

does not do so or make arrangements to do so, Rule 35.3 excuses the clerk and court reporter

from filing the record and Rule 37.3(b) provides that the appeal may be dismissed for want of

prosecution”. (In re Arroyo, No. 98-0152 (Tex. decided Oct. 15, 1998)

19. The Texas Supreme Court concluded however, that: “This avenue of appeal is not

adequate, however, unless the indigent party can obtain the record pertaining to the trial court's

ruling sustaining the contest to the affidavit of indigence. The court of appeals can and should,

on motion or its own initiative, require the clerk and court reporter under Rules 34.5(c)(1) and

34.6(d), respectively, to prepare and file the portions of the record necessary to review an order

sustaining a contest to an affidavit of indigence.

20. If the court of appeals determines that the order sustaining a contest to an

affidavit of indigence should be reversed, the appellant can then obtain a full record under Rules

34.5(c)(1) and 34.6(d), and can supplement his or her briefing under Rule 38.7. Pending

resolution of an appellant's challenge to an order sustaining a contest to an affidavit of indigence,

Rule 35.3(c) precludes the court of appeals from dismissing the appeal for appellant's failure to

file the complete record, since the failure in such circumstances would not be appellant's fault”.

(In re Arroyo, No. 98-0152 (Tex. decided Oct. 15, 1998) (emphasis added).

WHEREFORE,

PREMISES

CONSIDERED,

Wright’s

believes

his

new

evidence

confirming that he is receiving government entitlements as recognized by the State of Texas

meets his burden of proof that he is indigent and therefore respectfully requests this Court certify

that he is indigent and GRANT Wright’s Affidavit of Inability to Pay Costs in all respects and

that an Order on same be issued forthwith.

FURTHER AFFIANT SAYETH NOT.

Robert John Wright – Plaintiff/Appellant

SUBSCRIBED TO AND SWORN TO BEFORE ME on this _30 th _ day of October 2009

to certify which witness my hand and seal of office.

original stamped Notary Public in and for the State of Texas

CERTIFICATE OF SERVICE

The undersigned certify that a copy of the foregoing instrument, minus the exhibit, was

delivered to the Defendants in the above cause by first class mail to the addresses below on

October _30_, 2009.

/s/: Robert John Wright Robert John Wright – Plaintiff

POB 797762 Dallas, Texas 75379

972-955-6735

WM. LANCE LEWIS State Bar No. 12314560

Quilling, Selander, Cummiskey & Lownds, P.C.

2001 Bryan Street, Suite 1800

Dallas, Texas 75201 (214) 880-1827 (214) 871-2111 (Fax) ATTORNEY FOR DEFENDANT EMC MORTGAGE CORPORATION

ROBERT J. DAVIS

State Bar No. 05543500

Matthews, Stein, Shiels, Pearce, Knott, Eden & Davis, L.L.P.

8131 LBJ Freeway, Suite 700

Dallas, Texas 75251

972-234-3400

972-234-1750

ATTORNEY FOR DEFENDANT CONSTABLES

DAVID N. KITNER State Bar No. 11541500 STRASBURGER & PRICE, LLP 901 Main Street, Suite 4400 Dallas, Texas 75202

214-651-4300

214-651-4330 (Facsimile) ATTORNEY FOR DEFENDANTS FULBRIGHT & JAWORSKI AND MICHAEL SWARTZENDRUBER

T: 214 855 8000 F: 214 855 8200

CAUSE NO. 05-09-00935-CV

ROBERT JOHN WRIGHT,

§

IN THE COURT OF APPEALS

Plaintiff,

§

§

vs.

§

OF DALLAS COUNTY, TEXAS

§

EMC MORTGAGE CORPORATION,

§

FULBRIGHT & JAWORSKI L.L.P.,

§

FIFTH DISTRICT OF TEXAS

MICHAEL SWARTZENDRUBER Esq.,

§

CONSTABLE JOHNNY TODD

§

in his individual capacity,

§

Defendants.

§

JUSTICES: Thomas, O’Neill, Murphy

ORDER

Came on to be considered Appellant’s Request for Certification and supplement to his

Affidavit of Inability to Pay Costs based on new evidence, and the Court, having considered

Appellant’s new evidence and argument, finds Appellant is indigent as recognized by the

STATE of TEXAS and therefore his Affidavit of Inability to Pay Costs should be GRANTED in

all respects.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Appellant is

certified as an indigent person and his Affidavit of Inability to Pay Costs is hereby GRANTED.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the trial court’s

order on Appellant’s indigence is VACATED and all monies tendered to the trial court and

appellate court by Appellant are to be returned to him forthwith.

SIGNED this the

day of NOVEMBER, 2009.

JUSTICE PRESIDING