February 10, 2015
IN THE THIRD COURT OF APPEALS
OF TEXAS AT AUSTIN
****************************************
No. 03-14-00404-CV
KEVIN TOWER AND KARRIE LYNN TOWER,
Appellants,
v.
BANK OF AMERICA, N.A.
Appellee.
****************************************
APPELLANTS' BRIEF
Kevin Tower
541 Bayou Bend,
Buda, Texas 78610
512-762-5639
PROSE
Dated: February 6,2015
KBo
TH!^DCC>RTnc
IDENTITY OF PARTIES AND COUNSEL
Appellants: Kevin Tower and Karrie Lynn Tower
541 Bayou Bend,
Buda, Texas 78610
Phone:(512)762-5639
PROSE
Appellee: Bank of America, N.A.
Attorney for Appellee: Mr. Jonathan M. Williams
Marinosci Law Group, P.C.
14643 Dallas Parkway, Suite 750
Dallas, Texas 75254
Appellants Brief
Page 2 of 15
Table of Contents
TABLE OF AUTHORITIES 4
STATEMENT OF THE CASE 5
STATEMENT REGARDING ORAL ARGUMENT 6
STATEMENT OF JURISDICTION 6
STATEMENT OF FACTS 7
ISSUE 1: 9
ISSUE 2: 12
PRAYER 13
Appellants Brief
Page 3 of15
TABLE OF AUTHORITIES
CASES
A Plus Invs., Inc. v. Rushton, 2004 Tex. App. LEXIS 3605 (Tex. App. Fort Worth Apr. 22, 2004) 9
A Plus Investments, Inc. v. Rushton, 2-03-174-CV, 2004 WL 868866 (Tex. App. Apr. 22, 2004) 11
Armstrongv. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965) 12
Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex.2005) 10
Dormadyv. DineroLand& Cattle Co., 61 S.W.3d 555, 557 (Tex.App.-San Antonio 2001, pet. dism'd w.o.j.) 10
Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785, 789-90 (Tex. App. 2012) 10
Harris Cnty.Appraisal Dist. v. Houston 8th Wonder Prop., L.P., 395 S.W.3d 245, 252 (Tex. App. 2012) 12
Leavings v. Mills, 175 S.W.3d 30 1,3 10 (Tex. App. -Houston [1" Dist.] 2004, no pet.) 10
Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902,47 L.Ed.2d 18 (1976) 12
McCraw v. Maris, 828 S.W.2d 756, 758 (Tex.1992) 12
Merriman v. Sec. Ins. Co. ofHartford, 100 F.3d 1187, 1191 (5th Cir. 1996) 12
Millet v. JP Morgan Chase, N.A., 20 12 WL 1029497 at *3 (W.D. Tex. 2012) 10
Mitchellv. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex.App.-Houston [1st Dist.] 1995, writ denied) 10
Nootsie, Ltd. v. Hays Cnty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996) 9
Okorafor v. UncleSam & Assocs., Inc., 295 S.W.3d27,38 9
Okorafor v. UncleSam & Assocs., Inc., 295 S.W.3d 27, 38 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) 12
Scott v. Hewitt, 127 Tex. 31,90 S.W.2d 816, 818-19(1936) 10
RULES
Tex.R. Civ. P. 746 10
Texas Civil Practice & Remedies Code §51.012 6
Tex.R.App. P. 44.1(a) 12
Texas Rule of Evidence Rule 902(2) 6, 7,9, 11
Texas Rule of Evidence Rule 902(4) 11
Texas Rule of Evidence Rule 902(10) 6, 7, 9, 11
Texas LOCAL GOVT § 192.007 8
OTHER AUTHORITIES
Adam J. Levitin, Georgetown University Law Center.
Appellants Brief
Page 4 of15
STATEMENT OF THE CASE
"The mortgage foreclosure crisis raises legal questions as
important as its economic impact. Questions that were straightforward
and uncontroversial a generation ago today threaten the stability of a
$13 trillion mortgage market: Who has standing to foreclose? If a
foreclosure was done improperly, what is the effect? And what is the
proper legal method for transferring mortgages? These questions
implicate the clarity of title for property nationwide and pose a too-
big-to-fail problem for the courts. The legal confusion stems from the
existence of competing systems for establishing title to mortgages and
transferring those rights.
Historically, mortgage title was established and transferred
through the "public demonstration" regimes of UCC Article 3 and land
recordation systems. This arrangement worked satisfactorily when
mortgages were rarely transferred. Mortgage finance, however, shifted
to securitization, which involves repeated bulk transfers of mortgages.
To facilitate securitization, deal architects developed alternative
"contracting" regimes for mortgage title: UCC Article 9 and MERS, a
private mortgage registry. These new regimes reduced the cost of
securitization by dispensing with demonstrative formalities, but at the
expense of reduced clarity of title, which raised the costs of mortgage
enforcement. This trade-off benefitted the securitization industry at the
expense of securitization investors because it became apparent only
subsequently with the rise in mortgage foreclosures. The harm,
however, has not been limited to securitization investors. Clouded
mortgage title has significant negative externalities on the economy as
a whole."1
1. This is an appeal from the County Civil Court at Law Number Two (2), in Hays
County, Texas, before Judge Linda Ann Rodriguez, regarding a final judgment after non-jury
trial in favor of Appellee's regarding a forcible detainer and eviction filed on February 19,
2013.
2. This matter was first initiated in the Hays County Justice of the Peace, Precinct 5
wherein the Justice found for the Appellees, despite the fact that issues of standing and
jurisdiction were raised, thereby divesting that court and the county court ofjurisdiction. Being
1Adam J. Levitin, Georgetown University Law Center published on November 11, 2013 Duke Law Journal, Vol.
63, pp 637-734 (2013)
Appellants Brief
Page 5 of15
a court of no record, Appellants appropriately appealed the decision to the County Court at Law
Number Two (2), Hays County, Texas.
3. Appellants' central issues in this appeal are (i) that Judge Rodriguez abused her
discretion after she allowed the Business Records Affidavit" with the Deed of Trust and
Substitute Trustee's Deed into evidence despite being in violation of Texas Rules of Evidence
902(2)J and 902(10)4, and (ii) the trial court erred in issuing an improper judgment and
prevented the appellant from properly presenting its appeal.
STATEMENT REGARDING ORAL ARGUMENT
1. Oral argument in this matter is imperative so Appellants may accurately and
clearly convey to the Court the efforts Appellant made to raise objections at the trial court of the
prevalent issues with Appellee's standing.
2. Further, Appellants must in person articulate the importance of the factual and
procedural issues which exist regarding the standing argument.
STATEMENT OF JURISDICTION
1. This Court has jurisdiction of this appeal because Appellants appeal a Final
Judgment from the Hays County, Texas County Court at Law, Texas Civil Practice & Remedies
Code §51.012.
^CR 139 through 174
3 A document purporting to bear the signature in the official capacity of an officer or employee of any entity
included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the
district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity
and that the signature is genuine. TX R EV1D Rule 902(2)
'l The original or a copy of a record that meets the requirements of Rule 803(6) or (7), if the record is accompanied
by an affidavit that complies with subparagraph (B) of this rule and any other requirements of law. and the record
and affidavit are served in accordance with subparagraph (A). For good cause shown, the court may order that a
business record be treated as presumptively authentic even if the proponent fails to comply with subparagraph (A).
TXREV1D Rule 902(10)
Appellants Brief
Page 6 of 15
ISSUES PRESENTED FOR REVIEW
Issue 1: That Judge Rodriguez abused her discretion after allowing the Business Records
Affidavit with the Deed of Trust and Substitute Trustee's Deed into evidence
despite being in violation of Texas Rules of Evidence 902(2) and 902(10).
Issue 2: The trial court erred in issuing an improper judgment and prevented the Appellant
from properly presenting its appeal.
STATEMENT OF FACTS
1. The Appellants, purchased 541 Bayou Bend, Buda, Texas 78610 (the "Subject
Property") on February 29, 2008, which is more formally described as;
LOT 20, BLOCK R, WHISPERING HOLLOW SUBDIVISION, PHASE 1,
SECTION 3, A SUBDIVISION IN HAYS COUNTY, TEXAS, ACCORDING
TO MAP OR PLAT THEREOF RECORDED IN VOLUME 13, PAGE 325, OF
THE PLAT RECORDS OF HAYS COUNTY, TEXAS.
2. Appellants entered into a loan repayment and security agreements on or about,
February 29, 2008 with Standard Pacific Mortgage (hereinafter "SPM"). The loan allegedly
required Appellants to repay a loan of $190,312.005 to SPM, respectively. The borrower was
approved for financing and put $17,000 down towards the purchase6. The feature of the
mortgage was structured using a 30-year fixed loan program where the principal loan payment
was $1,080.57. The mortgage interest rate was set at 5.50%. The loans were purportedly
secured by the Subject Property.
3. Each subsequent banking institution who has participated in, been assigned or
been transferred rights, or holds a position or interest under this loan agreement, including Bank
of America (hereinafter "BOA"), SPM, and Mortgage Electronic Registration Systems, Inc.
(hereinafter "MERS"), failed to perform their due diligence in investigating the legal
5CR 202 through 209
6 Id.
Appellants Brief
Page 7 of15
requirements that this loan should have been processed within therefore failing to act in good
faith. As a result, Appellee BOA now holds an interest in a loan that was improperly handled
from its inception.
4. The terms of the finance transaction with BOA and MERS is not clear or
conspicuous, nor consistent, and are illegal, and include, for example, extremely high fees and
costs to originate the loan and the immediate lack of equity that Appellants received. Further,
Appellants were not in a position to qualify for the loan based upon his financial condition.
Appellants were given a loan that was inappropriate under his circumstances. The loan was
more expensive in terms of fees, charges and or interest rates than alternative financing for which
Appellants could have qualified.
5. It is believed that shortly after closing; Appellee BOA, SPM, and MERS pooled
the Note with others and sold mortgage-backed securities. Appellee is now acting as the
"Servicer" and attempting to foreclosure without the apparent power to do so because the Deed
of Trust and the power of foreclosure were never transferred to Appellee or MERS. Further,
pursuant to a Hays County deed records search, it appears that there is not an assignment of the
trustee either (any notice of substitute trustee assignment), which constitutes a violation of Texas
Local Government Code §192.007.
6. Thereafter Appellee's attorneys initiated an eviction and have sued for forcible
detainer with a hearing that was held on Thursday April 18, 2013 (Cause No. F13-002J5, Justice
Of the Peace Precinct 5, Hays County, Texas). The County Court issued a judgment for BOA on
April 11, 2014.7
7CR 240 through 242
Appellants Brief
Page 8 of 15
ISSUE 1: That Judge Rodriguez abused her discretion after allowing the Business
Records Affidavit along with the Deed of Trust and Substitute Trustee's
Deed into evidence despite being in violation of Texas Rules of Evidence
902(2) and 902(10).
ARGUMENT AND AUTHORITIES
7. The "standard of review" used by an appellate court to review a trial courts legal
conclusions is de novo.8 Here the trial court allowed a non certified copy of a Substitute
Trustee's Deed and Deed of Trust as Plaintiffs Exhibits despite Appellants' attorney's objection
to reliability9 specifically because they were admitted based on a Texas Rule of Evidence Rule
902(2). The objection made was based on concerns that the Exhibits were not reliable and in
violation of Texas Rules of Evidence 902(2) and 902(10).
8. As shown in the Deed of Trust the original Lender was SPM10 and the Substitute
Trustee's Deed11 it does not show how MERS gained the right to possession as an Assignment
was never presented giving authority and right to possession of the Note and Deed of Trust from
SPM to Appellee. If this link cannot be affirmed or if "[t]here is no evidence in the record to
support a link between [Appellee] and [Standard Pacific Mortgage] then this failure to connect
the dots is fatal to [the case]."12
9. "A plaintiff has standing when it is personally aggrieved, regardless of whether it
is acting with legal authority; a party has capacity when it has the legal authority to act,
regardless of whether it has a justiciable interest in the controversy."13 Capacity concerns
8However, we must apply a de novo standard of review to the trial court's legal conclusions because a trial court has
no discretion in determining what the law is, which law governs, or how to apply the law. Okorafor v. Uncle Sam &
Assocs., Inc., 295 S.W.3d 27, 38 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
9RR Vol. 1Page 5 Line 13-23; RR Vol. 1Page 6 Line 7 through 10; RR Vol. 1Page 7 Line 13 through 23
10 CR202through 209
11 CR 154 through 156
12 A Plus Invs., Inc. v. Rushton, 2004 Tex. App. LEXIS 3605 (Tex. App. Fort Worth Apr. 22, 2004)
13 Nootsie, Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996).
Appellants Brief
Page 9 of15
whether a party has a personal right to come into court, not whether it has an enforceable right or
interest.14 Neither of these recorded documents presents evidence that valid transfers were made
from SPM to MERS then to Appellee presenting the Court with a broken chain.
10. A forcible detainer is a procedure to determine the right to immediate possession
of real property.15 It was created to provide a speedy, simple, and inexpensive means to obtain
possession without the necessity of a more expensive suit on the title. The only issue in a
forcible detainer action is which party has the right to immediate possession of the property; the
merits of the title shall not be adjudicated.17 "But factual disputes may arise when the party
seeking to foreclose is not the original mortgagee, as is most often the case these days. In such
cases the foreclosing party must be able to trace its rights under the security instrument back to
the original mortgagee." In order to enforce the note as a holder and move forward with
foreclosure, a party who is not the original lender must prove "successive transfers of possession
and endorsement establishing an "unbroken chain of title."19 Thus, with certain exceptions,
possession of the note is typically required in order for a holder to enforce it. As is here the
case, there is just no evidence of how the Current Mortgagee acquired its rights, in fact there is
clear and convincing evidence of quite the contrary. If the Substitute Trustees Deed is Void then
any interest Appellee had at the time of trial in the justice court would be void as well making
Appellee lack standing to proceed with the cause of action.
11. Again, in A Plus Investments, Inc. v. Rushton, without a link between the original
14 Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex.2005) (citing 6A Wright, Miller, & Kane, Federal
Practice and Procedure: Civil 2D § 1559, at 441); Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785, 789-90
(Tex. App. 2012).
15 Dormady v. Dinero Land &Cattle Co., 61 S.WJd555, 557 (Tex.App.-San Antonio 2001, pet. dism'd w.o.j.).
16 Scott v.Hewitt, 127 Tex. 31,90 S.W.2d 816, 818-19 (1936).
17 See Tex.R. Civ. P. 746; Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex.App.-Houston [1st Dist.]
1995, writ denied).
18 Leavings v. Mills, 175 S.WJd 30 1,3 10 (Tex. App. -Houston [1" Dist.] 2004, no pet.)."
19 Mat 310.
20 Millet v. JPMorgan Chase, N.A., 20 12 WL 1029497 at *3 (W.D. Tex. 2012).
Appellants Brief
Page 10 of15
lender and its successor the Court in this case said the failure to connect the dots was fatal to the
purchaser's case and that the successor must have an order from the district court to have the
right to foreclose on the home. The Court there concluded that absent the right to foreclose, the
successor could not transfer ownership to the purchaser and a triable issue of title would be
created by documents indicating that the foreclosure was conducted by an entity that did not
have permission to do so.
12. Texas Rules of Evidence, 902(10), specifically requires that we have to have an
individual that's a custodian of records that can speak to how these business records were made.
Here the Business Records Affidavit presents Sharon Vaughan of National Default Exchange
as the affiant. Vaughn is not a custodian of records for Barrett Daffin and does not work for the
firm and therefore the records attached are not business records whatsoever and are in violation
of Texas Rules of Evidence 902(10) and are hearsay and should have been excluded from
evidence.
13. Deeds of trust, substitute trustee's deeds, notices of assignment, notice of
substitute trustee's assignment, those aren't business records; those are public records; those have
to come in pursuant to Texas Rules of Evidence 902(2). As the Court is aware, Texas Rules of
Evidence, 902(2), allows for those types of documents, public records, to come in under stamp or
certification. Clearly the Business Records affidavit with the Deed of Trust and Substitute
Trustee's Deed do qualify under this rule. They could have come in under Texas Rules of
Evidence 902(4)24 if they were certified by the Hays County Official Public Records Office but
21 APlus Investments, Inc. v. Rushton, 2-03-174-CV, 2004 WL 868866 (Tex. App. Apr. 22, 2004).
22 Id.
23 CR 139 through 140
24 Acopy ofan official record or report orentry therein, orofa document authorized by law to be recorded or filed
and actually recorded or filed in a public office, including data compilations in any form certified as correct by the
custodian or otherpersonauthorized to make the certification, by certificate complying with paragraph (1), (2) or (3)
Appellants Brief
Page 11 of15
again Appellee did not follow proper procedure and therefore the Business Records Affidavit
with the Deed of Trust and Substitute Trustee's Deed should not have been allowed into the
record of the trial court.
ISSUE 2: The trial court erred in issuing an improper judgment and prevented the
Appellant from properly presenting its appeal.
ARGUMENT AND AUTHORITIES
14. The "standard of review" used by an appellate court to review a trial courts legal
conclusions is de novo. At trial, Appellees were allowed to present their evidence and
argument, however Appellants were never presented with the same opportunity as Judge
Rodriguez instead asked for time to look over all documents and "come to a decision" on the
evidentiary objection.26 Without allowing Appellants the opportunity to present their appeal the
court was in error.
15. To reverse the judgment on appeal, Court must conclude that any error probably
caused the rendition of an improper judgment or prevented the appellant from properly
presenting its appeal.27 To make this determination, court must review the entire record.
16. The fundamental requirement of due process is the opportunity to be heard at a
of this rule or complying with any statute or other rule prescribed pursuant to statutory authority. TX R EVID Rule
902(4)
25 However, we must apply a de novo standard of review to the trial court's legal conclusions because a trial court
has no discretion in determining what the law is, which law governs, or how to apply the law. Okorafor v. Uncle
Sam & Assocs., Inc., 295 S.W.3d 27, 38 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)
26 RR Vol. 1 Page 15 Line 6 though 8
27Tex.R.App. P.44.1(a)
28 See, e.g., McCraw v. Maris, 828 S.W.2d 756, 758 (Tex. 1992); Harris Cnty. Appraisal Dist. v. Houston 8th
WonderProp., L.P., 395 S.W.3d 245, 252 (Tex. App. 2012).
Appellants Brief
Page 12 of15
90
meaningful time and in a meaningful manner. A review of the Reporter's Record will show that
the Appellants were never given a fair opportunity to present evidence of their own to prove their
superior right to possession over the Appellee or to disprove any of the four established elements
of the causes of action of forcible detainer. To disallow this right to submit evidence and or to
cross examine the Appellee created a fatal flaw one which flies in the face of the right Due
Process guarantees to all litigants.
PRAYER
WHEREFORE, Appellant respectfully requests:
1. That this Court vacate the trial court's judgment and dismiss the case, or, in the
alternative,
2. That this Court reverse the trial court's judgment and remand the case for further
proceedings, or, in the alternative,
3. That this Court reverse the trial court's judgment in whole or in part and render
the judgment that the trial court should have rendered, or, in the alternative,
4. That this Court modify the trial court's judgment as set forth above and affirm as
modified, and,
5. That this Court award costs, including preparation costs for the clerk's record and
the reporter's records, to Appellants, and
6. That this Court release Appellants' cash bond with interest from the date of
deposit, or, in the alternative, that this Court remand this cause with specific
instructions to the trial court to immediately release Appellants' cash bond with
29 Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902,47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo,
380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)); Merriman v. Sec. Ins. Co. ofHartford, 100 F.3d
1187, 1191 (5th Cir. 1996).
Appellants Brief
Page 13 of15
interest from the date of deposit, and,
7. For such other and further relief as this Court deems just and proper.
Respectfuljy^subniitted:
^EVfN-A. TOWER
Pro Se
CERTIFICATE OF COMPLIANCE
Relying on the word count function in the word processing software used to
produce this document, I certify that the number of words in this brief (excluding any caption,
identity of parties and counsel, statement regarding oral argument, table of contents, index of
authorities, statement of the case, statement of issues presented, statement of jurisdiction,
statement of procedural history, signature, proof of service, certification, certificate of
compliance, and appendix) is 3,627.
Appellants Brief
Page 14 of 15
CERTIFICATE OF SERVICE
I hereby certify that on this the 6^_ day of February 2015, a true and correct
copy of the foregoing was served as stated below pursuant to the Texas Rules of
Civil Procedure.
Mr. Jonathan M. Williams • Electronic File via ProDocEfile.com
Marinosci Law Group. P.C. Confirmed Facsimile
14643 Dallas Parkway, Suite 750 • Hand Delivery
Dallas. Texas 75254 • Regular U.S. Mail
(972)331-5240 • CMRRR
Appellants Brief
Page 15 of 15