H. Lance Stinnett and Metz B. Castleberry v. Sfjv-2003-1, Llc

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-06-445-CV

H. LANCE STINNETT AND APPELLANTS
METZ B. CASTLEBERRY

V.

SFJV-2003-1, LLC APPELLEE

------------

FROM THE 415TH DISTRICT COURT OF PARKER COUNTY

------------

MEMORANDUM OPINION 1

------------

This is a suit on a promissory note. Appellants H. Lance Stinnett and

Metz B. Castleberry appeal from a summary judgment in favor of Appellee

SFJV- 2003-1, LLC. In three issues, Appellants argue that the trial court erred

by granting summary judgment because (1) the summary judgment evidence

consisted substantially of affidavits which were not competent summary

1
… See T EX. R. A PP. P. 47.4.
judgment evidence; (2) Appellee’s summary judgment evidence did not properly

establish ownership of the note; and (3) Appellee’s summary judgment evidence

was internally inconsistent and inherently unreliable. We affirm.

Background

In 1999, Appellants purchased real property in Parker County under a

warranty deed with a vendor’s lien. Appellants executed a note and deed of

trust in favor of Texas Bank to fund the purchase. In 2004, Appellee sued

Appellants, alleging that Appellee had become holder of the note and deed of

trust through a series of assignments and that the note was due and unpaid.

Appellee sought rescission of the vendor’s lien and nonjudicial foreclosure.

Appellants filed a general denial.

Appellee filed a first motion for summary judgment in March 2005. The

motion was supported by the affidavit of Becky Howell, the “foreclosure

supervisor” employed by Appellee’s trial counsel. Howell averred that she had

personal knowledge of the facts recited in her affidavit because she was

“responsible for all default servicing activities involved in relation to

[Appellants’] loan on behalf of [Appellee].” She further averred that she was

“custodian of [Appellee’s] records with respect to default servicing of

[Appellants’] loan.” In two paragraphs, her affidavit inexplicably refers to

2
Appellants as “Decedent.” She averred that Appellee was the lawful holder of

the note and the beneficiary of the deed of trust. Her affidavit goes on to

purportedly authenticate several documents as Appellee’s business records,

including the note; the warranty deed with vendor’s lien; the deed of trust; and

assignments of the lien from Texas Bank to Chase Manhattan Mortgage

Corporation, from Chase to the Secretary of Housing and Urban Development,

and from the Secretary to Appellee. Copies of those documents are attached

to Howell’s affidavit, and the copies of all of the documents except the note

appear to be certified copies under the seal of the Parker County Clerk.

Appellants filed a summary judgment response, arguing that Howell’s

affidavit shows that she was, at most, the records custodian for Appellee’s

counsel, rather than Appellee itself. Appellants further observed that the copy

of the note attached to Howell’s affidavit bore endorsements (1) to Chase and

(2) from Chase to an unnamed person but no endorsement to Appellee.

In July 2005, Appellee filed “Movant’s 1st Amended Affidavit.” This

affidavit was executed by Roger L. Simpson, Appellee’s “vice president of loan

documentation.” Apart from his name and job title, Simpson’s affidavit is

virtually identical to Howell’s, even twice referring to Appellants as “Decedent.”

Attached to Simpson’s affidavit is another copy of the note, identical to the

3
copy attached to Howell’s affidavit. Rather than attach copies of the other

relevant documents, his affidavit refers to the copies attached to Howell’s.

Appellants filed a supplemental summary judgment response, arguing that

the trial court should be suspicious of Simpson’s affidavit because it did not

clearly identify his job duties with Appellee, because it was a series of

conclusory statements of which the affiant did not demonstrate personal

knowledge, and because it was identical to Howell’s affidavit.

Appellee filed “Plaintiff’s 1st Amended Motion for Summary Judgment”

in January 2006. This motion was supported by the affidavit of Julie Matta,

Appellee’s “assistant secretary.” Again, apart from her name and job title,

Matta’s affidavit is identical to Howell’s and Simpson’s. But attached to

Matta’s affidavit was another copy of the note, this time bearing endorsements

from Texas Bank to Chase, from Chase to the Secretary of Housing and Urban

Development, and from the Secretary to Appellee. Like Simpson’s affidavit,

Matta’s refers to the other documents attached to Howell’s affidavit as

opposed to attaching new copies.

Appellants filed a “second supplemental response” to Appellee’s first

amended summary judgment motion, arguing that Matta’s affidavit was

defective for the same reasons that Howell’s and Simpson’s were defective.

4
 In August 2006, Appellee filed “Plaintiff’s Second (2nd) Motion for

Summary Judgment.” This final motion was supported by the affidavit of

Geoffrey Nixon, Appellee’s “VP of Loan Documentation.” Once more, apart

from his name and job title, Nixon’s affidavit is virtually identical to Howell’s,

Simpson’s, and Matta’s, though it did not refer to Appellants as “Decedent.”

Nixon’s affidavit attached a copy of the note showing all the endorsements

beginning with Texas Bank and ending with Appellee. It also attached certified

copies under the Parker County Clerk’s seal of the warranty deed with vendor’s

lien, the deed of trust, and the assignments of the lien.

Appellants filed another summary judgment response, arguing that

because Howell, Simpson, Matta, and Nixon all claimed to be Appellee’s

records custodian and because the copies of the note attached to the affidavits

did not match one another,

It is reasonable to conclude that one or more among [them] have
not sworn truthfully to the Court regarding the Note. Defendants
are unable to know which of the Affiants are untruthful in which
respects, without a skilled forensic examination of the claimed
original Note(s), which the Defendants ask the Court to order to
determine the authenticity and probable date(s) of making of the
various indorsement marks on the variously claimed Note(s).

5
Appellants argued that the these problems precluded summary judgment

because Appellee had not proven as a matter of law that it was the holder of

the note.

The trial court granted summary judgment in Appellee’s favor in

September 2006, and this appeal followed.

Standard of Review

In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of

law. T EX. R. C IV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211,

215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,

678 (Tex. 1979). The burden of proof is on the movant, and all doubts about

the existence of a genuine issue of material fact are resolved against the

movant. Sw. Elec. Power Co., 73 S.W.3d at 215.

When reviewing a summary judgment, we take as true all evidence

favorable to the nonmovant, and we indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor. Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Evidence that favors the movant’s

position will not be considered unless it is uncontroverted. Great Am. Reserve

6
Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).

If the uncontroverted evidence is from an interested witness, it does nothing

more than raise a fact issue unless it is clear, positive and direct, otherwise

credible and free from contradictions and inconsistencies, and could have been

readily controverted. T EX. R. C IV. P. 166a(c); Trico Techs. Corp. v. Montiel,

949 S.W.2d 308, 310 (Tex. 1997).

The summary judgment will be affirmed only if the record establishes that

the movant has conclusively proved all essential elements of the movant’s

cause of action or defense as a matter of law. Clear Creek Basin, 589 S.W.2d

at 678.

Discussion

In their first issue, Appellants argue that Appellee’s affidavits are not

competent summary judgment evidence because they do not establish each

affiants’ personal knowledge of the relevant facts, namely, that Appellee is the

holder of the note and the authenticity of the relevant documents.

To establish personal knowledge, an affiant need only show how the

affiant became personally familiar with the facts. Dickey v. Club Corp. of Am.,

12 S.W.3d 172, 176 (Tex. App.—Dallas 2000, pet. denied). “The personal

knowledge requirement is satisfied if the affidavit sufficiently describes the

7
relationship between the affiant and the case so that it may be reasonably

assumed that the affiant has personal knowledge of the facts stated in the

affidavit.” Stucki v. Noble, 963 S.W.2d 776, 780 (Tex. App.—San Antonio

1998, pet. denied).

An affiant’s unchallenged statement of employment or connection to the

case can be sufficient to establish personal knowledge. See Dickey, 12 S.W.3d

at 176 (holding affiant’s unchallenged statement that he was movant’s general

manager sufficient to show personal knowledge of facts related to employer’s

business); Jackson T. Fulgham Co., Inc. v. Stewart Title Guar. Co., 649 S.W.2d

128, 130 (Tex. App.—Dallas 1983, writ ref’d n.r.e.) (holding affiant’s

unchallenged statement that he was vice president of title company sufficient

to show personal knowledge of facts regarding promissory note); Robinson v.

Bank One Nat. Ass’n, No. 04-03-00343-CV, 2004 WL 28367, at *2 (Tex.

App.—San Antonio Jan. 7, 2004, pet. denied) (holding affiants’ statements that

they were movant’s “foreclosure specialist” and movant’s counsel’s

“foreclosure manager” sufficient to establish personal knowledge with regard

to note and deed of trust).

Howell, Simpson, Matta, and Nixon averred that they were, respectively,

Appellee’s counsel’s “foreclosure supervisor,” “vice president of loan

8
documentation,” “assistant secretary,” and “VP of Loan Documentation.”

Appellants did not challenge these statements. We hold that they were

sufficient to establish the affiants’ personal knowledge as records custodians

of the note and related documents. We overrule Appellants’ first issue.

In their second issue, Appellants argue that the summary judgment

evidence does not prove that Appellee owns the note because Appellee did not

present the original note to the trial court and the copies attached to the

summary judgment affidavits differed in minor aspects, e.g., the copies

attached to Howell’s and Simpson’s affidavits did not reflect all of the

endorsements but the copies attached to Matta’s and Nixon’s affidavits did.

Appellants’ argument fails for three reasons. First, all four affiants

averred that Appellee was the holder of the note. Second, a photocopy of a

note attached to an affidavit swearing that it is a true and correct copy is

competent summary judgment proof. Zarges v. Bevan, 652 S.W.2d 368, 369

(Tex. 1983) (per curiam). Third, the minor differences between the copies of

the note attached to the affidavits does not create a genuine issue of material

fact as to who held the note. The notes attached to Howell’s and Simpson’s

affidavits are clearly earlier copies of the same note attached to Matta’s and

Nixon’s affidavits; the only difference is the absence on the Howell and

9
Simpson copies of the later endorsements from Chase to the Secretary of

Housing and Urban Development and from the Secretary to Appellee. We

therefore overrule Appellants’ second issue.

In their third issue, Appellants argue that “glaring inconsistencies”

between the four affidavits—namely, the fact that all four affiants claimed to

be Appellee’s records custodians and the differences between the copies of the

notes attached to the affidavits—rendered them incompetent as summary

judgment evidence. Appellants also argue that the almost-verbatim similarity

of the affidavits to one another renders them unreliable and incompetent. In

other words, Appellants argue that the affidavits are unreliable because they are

both inconsistent and too consistent.

We have already considered the differences between the copies of the

notes attached to the affidavits and rejected those differences as raising a

genuine issue of material fact. That all four affiants identify themselves as

Appellee’s records custodians likewise does not render the affidavits collectively

incompetent; Appellants point to no authority for the proposition that there can

be only one custodian of records for an entity, and we previously noted that a

holder’s employee and the employee of the holder’s counsel may both, as the

holder’s records custodians, authenticate a note and deed of trust. See

10
Robinson, 2004 W L 28367, at *2. Finally, the boilerplate similarity of the

affidavits does not make them—neither singularly nor collectively—less

competent than if each related the same facts in unique language. If anything,

the consistency of the affidavits tends to lend greater credibility to the facts

therein recited. We overrule Appellants’ third issue.

Conclusion

Having overruled Appellants’ three issues, we affirm the trial court’s

judgment.

ANNE GARDNER
JUSTICE

PANEL A: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: April 3, 2008

11