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FILED
DALLAS COUNTY
12/3/2019 10:28 AM
FELICIA PITRE
DISTRICT CLERK
Rosa Delacerda
Cause N0. DC- 1 8-02686
WELLS FARGO BANK IN THE DISTRICT COURT
NATIONAL ASSOCIATION
Vs
CRYSTAL INVSTMENT PROPERTY, LLC WOODOOOOODOmOOOWDOODOOOWDOmOOO
ALPHA DESIGN, INC., ALEXANDER DALLAS COUNTY, TEXAS
RIVKIN AND OLGA RIVKIN
Vs
PAUL FLETCHER, TRUSTEE 298m DISTRICT COURT
RESPONSE TO MOTION TO TRANSFER VENUE
TO THE HONORABLE JUDGE OF SAID COURT:
Comes now AHMED ELGALAD, and files this his Response to the Motion to Transfer Venue,
filed by OLGA RIVKIN, and in support hereof would show:
I
BACKGROUND
Wells Fargo filed suit 0n February 28, 2018, against Crystal Investment Property, LLC
(Crystal), Alpha Design, Inc., (Alpha), Alexander Rinin (Alexander) and Olga Rinin (Olga).
Subsequently, AHMED ELGALED (Ahmed) intervened.
Wells Fargo plead that it was the holder of a mortgage note and deed of trust, Alpha
being the maker 0f the note and Crystal being the maker 0f the deed 0f trust. The deed 0f trust
encumbered an apartment complex owned by Crystal. The two companies are owned by Olga
and Alexander. It alleged that the note was in default and that Olga and Alexander were
interfering With its rights as a secured lienholder. Subsequently, Wells foreclosed the property.
The sale generated excess funds. Ultimately, the excess funds were deposited into the registry of
the Court, and Wells Fargo is been discharged from the suit.
Ahmed contends that he is entitled to the excess proceeds by Virtue 0f an assignment 0f
interest executed by Crystal and Alpha. Meanwhile, a foreign judgment creditor, Mega Creation,
Inc., has also intervened in the case, seeking t0 satisfy a California judgment it holds against
Alexander.
Now, Olga seeks t0 transfer venue to Collin County, where there is a divorce pending
between Olga and Alexander. Ahmed is opposed.
II
A
THE MOTION IS UNTIMELY
ARGUMENT AND AUTHORITIES.
The Motion filed by Olga is pursuant to C.P.R.C. §15.002(b). Before addressing the
merits, Ahmed urges that the motion must be denied because it is untimely. The statute provides
that under some circumstances the court may transfer venue. However, such a motion must be
filed before or with the initial appearance:
“
“(b) For the convenience of the parties and Witnesses and in the interest ofjustice, a
court may transfer an action from a county of proper venue under this subchapter or
Subchapter C t0 any other county 0f proper venue 0n motion of a defendant filed and
served concurrently with 0r before the filing of the answer, where the court finds2”
(Emphasis Added)
TeX. CiV. Prac. & Rem. Code Ann. § 15.002
The Rules of Civil Procedure likewise provide:
“1. Time to File. An obj ection t0 improper venue is waived if not made by written
motion filed prior t0 0r concurrently With any other plea, pleading 0r motion except a
special appearance motion provided for in Rule 120a. A written consent of the parties to
transfer the case to another county may be filed with the clerk 0f the court at any time. A
motion to transfer venue because an impartial trial cannot be had in the county where the
action is pending is governed by the provisions 0f Rule 257.”
Tex. R. CiV. P. 86
Failure to timely file a Motion t0 Transfer Venue results in a waiver. “A defendant may also
waive venue by failing t0 obj ect by written motion prior t0 0r concurrently with his first
responsive pleading, except by special appearance.” WTFO, Inc. v. Braithwaite, 899 S.W.2d
709, 716, 1995 WL 139255 (Tex. App.—Da11as 1995, no writ). Further, it is an abuse 0f
discretion to grant an untimely Motion to Transfer Venue. Adame v. Lloyds, 506 S.W.3d 96,
100, 2016 WL 4578402 (Tex. App.—Corpus Christi 2016, pet. denied).
B
THE MOTION IS MERITLESS
Timing aside, the motion is Without merit. This case is nearly 2 years 01d. It was filed in
the county where it had t0 be filed because the case involved real estate located here. The focus
and locus of the case remains Dallas County, the real estate having morphed into cash.
The notion that there may be some judicial efficiencies by moving this case t0 the divorce
case holds no water. The divorce case is nearly four years 01d. The case has been tried. It was a
three day trial held over one year ago. Ahmed is not and was not a party to the suit. The trial
court has ruled 0n the issues raised in the divorce. A11 that needs to be done at this point is the
entry of a final decree.
Ahmed further notes that this case is set for a summary judgment hearing 0n January 7;
and, the case is set for trial (the THIRD setting) 0n March 3, 2020. Transferring this case t0
Collin County Will result in undue and unnecessary delay in the resolution both of this case and
of the divorce case.
Respectfully submitted,
/s/Kenneth S. Harter
Kenneth S. Harter
State Bar ID 09155300
LAW OFFICES OF KENNETH S. HARTER
5080 Spectrum Drive, Suite lOOO-E
Addison, TX. 75001
(972) 752-1928
Fax (2 14) 206-1491
ken@kenharter.com
Attorneys for Ahmed Elgalad
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was served 0n all counsel of record Via
the Court's e-filing system on this date: December 3, 2019.
/s/Kenneth S. Harter
Kenneth S. Harter
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FILED DALLAS COUNTY 12/3/2019 10:28 AM FELICIA PITRE DISTRICT CLERK Rosa Delacerda Cause N0. DC- 1 8-02686 WELLS FARGO BANK IN THE DISTRICT COURT NATIONAL ASSOCIATION Vs CRYSTAL INVSTMENT PROPERTY, LLC WOODOOOOODOmOOOWDOODOOOWDOmOOO ALPHA DESIGN, INC., ALEXANDER DALLAS COUNTY, TEXAS RIVKIN AND OLGA RIVKIN Vs PAUL FLETCHER, TRUSTEE 298m DISTRICT COURT RESPONSE TO MOTION TO TRANSFER VENUE TO THE HONORABLE JUDGE OF SAID COURT: Comes now AHMED ELGALAD, and files this his Response to the Motion to Transfer Venue, filed by OLGA RIVKIN, and in support hereof would show: I BACKGROUND Wells Fargo filed suit 0n February 28, 2018, against Crystal Investment Property, LLC (Crystal), Alpha Design, Inc., (Alpha), Alexander Rinin (Alexander) and Olga Rinin (Olga). Subsequently, AHMED ELGALED (Ahmed) intervened. Wells Fargo plead that it was the holder of a mortgage note and deed of trust, Alpha being the maker 0f the note and Crystal being the maker 0f the deed 0f trust. The deed 0f trust encumbered an apartment complex owned by Crystal. The two companies are owned by Olga and Alexander. It alleged that the note was in default and that Olga and Alexander were interfering With its rights as a secured lienholder. Subsequently, Wells foreclosed the property. The sale generated excess funds. Ultimately, the excess funds were deposited into the registry of the Court, and Wells Fargo is been discharged from the suit. Ahmed contends that he is entitled to the excess proceeds by Virtue 0f an assignment 0f interest executed by Crystal and Alpha. Meanwhile, a foreign judgment creditor, Mega Creation, Inc., has also intervened in the case, seeking t0 satisfy a California judgment it holds against Alexander. Now, Olga seeks t0 transfer venue to Collin County, where there is a divorce pending between Olga and Alexander. Ahmed is opposed. II A THE MOTION IS UNTIMELY ARGUMENT AND AUTHORITIES. The Motion filed by Olga is pursuant to C.P.R.C. §15.002(b). Before addressing the merits, Ahmed urges that the motion must be denied because it is untimely. The statute provides that under some circumstances the court may transfer venue. However, such a motion must be filed before or with the initial appearance: “ “(b) For the convenience of the parties and Witnesses and in the interest ofjustice, a court may transfer an action from a county of proper venue under this subchapter or Subchapter C t0 any other county 0f proper venue 0n motion of a defendant filed and served concurrently with 0r before the filing of the answer, where the court finds2” (Emphasis Added) TeX. CiV. Prac. & Rem. Code Ann. § 15.002 The Rules of Civil Procedure likewise provide: “1. Time to File. An obj ection t0 improper venue is waived if not made by written motion filed prior t0 0r concurrently With any other plea, pleading 0r motion except a special appearance motion provided for in Rule 120a. A written consent of the parties to transfer the case to another county may be filed with the clerk 0f the court at any time. A motion to transfer venue because an impartial trial cannot be had in the county where the action is pending is governed by the provisions 0f Rule 257.” Tex. R. CiV. P. 86 Failure to timely file a Motion t0 Transfer Venue results in a waiver. “A defendant may also waive venue by failing t0 obj ect by written motion prior t0 0r concurrently with his first responsive pleading, except by special appearance.” WTFO, Inc. v. Braithwaite, 899 S.W.2d 709, 716, 1995 WL 139255 (Tex. App.—Da11as 1995, no writ). Further, it is an abuse 0f discretion to grant an untimely Motion to Transfer Venue. Adame v. Lloyds, 506 S.W.3d 96, 100, 2016 WL 4578402 (Tex. App.—Corpus Christi 2016, pet. denied). B THE MOTION IS MERITLESS Timing aside, the motion is Without merit. This case is nearly 2 years 01d. It was filed in the county where it had t0 be filed because the case involved real estate located here. The focus and locus of the case remains Dallas County, the real estate having morphed into cash. The notion that there may be some judicial efficiencies by moving this case t0 the divorce case holds no water. The divorce case is nearly four years 01d. The case has been tried. It was a three day trial held over one year ago. Ahmed is not and was not a party to the suit. The trial court has ruled 0n the issues raised in the divorce. A11 that needs to be done at this point is the entry of a final decree. Ahmed further notes that this case is set for a summary judgment hearing 0n January 7; and, the case is set for trial (the THIRD setting) 0n March 3, 2020. Transferring this case t0 Collin County Will result in undue and unnecessary delay in the resolution both of this case and of the divorce case. Respectfully submitted, /s/Kenneth S. Harter Kenneth S. Harter State Bar ID 09155300 LAW OFFICES OF KENNETH S. HARTER 5080 Spectrum Drive, Suite lOOO-E Addison, TX. 75001 (972) 752-1928 Fax (2 14) 206-1491 ken@kenharter.com Attorneys for Ahmed Elgalad CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing was served 0n all counsel of record Via the Court's e-filing system on this date: December 3, 2019. /s/Kenneth S. Harter Kenneth S. Harter