ACCEPTED
03-14-00404-CV
4472830
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/12/2015 11:50:38 AM
JEFFREY D. KYLE
CLERK
No. 03-14-00404-CV
In the Third Court of Appeals FILED IN
Austin, Texas 3rd COURT OF APPEALS
AUSTIN, TEXAS
3/12/2015 11:50:38 AM
JEFFREY D. KYLE
Clerk
KEVIN TOWER AND KARRIE LYNN TOWER
Appellants,
V.
BANK OF AMERICA, N.A.
Appellee.
ON APPEAL FROM THE COUNTY COURT AT LAW, HAYS COUNTY, TEXAS
CAUSE NO. 13-0320-C
APPELLEE’S BRIEF
Jonathan M. Williams
jwilliams@mlg-defaultlaw.com
State Bar No. 00791932
MARINOSCI & BAXTER
MARINOSCI LAW GROUP, P.C.
14643 Dallas Parkway, Suite 750
Dallas, Texas 75245
Phone: (972) 331-2100
Fax: (972) 331-5240
ATTORNEYS FOR APPELLEE
BANK OF AMERICA, N.A.
ORAL ARGUMENT NOT REQUESTED
BRIEF OF APPELLEE PAGE 1
CERTIFICATE OF INTERESTED PARTIES
Plaintiff (Appellee):
BANK OF AMERICA, N.A. (BANA)
Attorneys for Plaintiff (Appellee) in trial court and on appeal:
Jonathan M. Williams
jwilliams@mlg-defaultlaw.com
State Bar No. 00791932
MARINOSCI & BAXTER
MARINOSCI LAW GROUP, P.C.
14643 Dallas Parkway, Suite 750
Dallas, Texas 75245
Phone: (972) 331-2100
Fax: (972) 331-5240
ATTORNEYS FOR APPELLEE
BANK OF AMERICA, N.A
Defendants (Appellants) and Pro Se Representative:
Kevin Tower and Karrie Lynn Tower
541 Bayou Bend,
Buda, Texas 78610
Phone: (512) 762-5639
Trial Court:
The Honorable Linda A. Rodriguez
County Court at Law Number Two
Hays County, Texas
712 South Stagecoach Trail, Ste. 2292
San Marcos, TX 78666
BRIEF OF APPELLEE PAGE 2
STATEMENT REGARDING ORAL ARGUMENT
Appellee does not believe that oral argument is necessary in this appeal;
however, should Appellants request, or should the Court require an oral
argument, Appellee would request the opportunity to present an argument.
BRIEF OF APPELLEE PAGE 3
TABLE OF CONTENTS
Certificate of Interested Parties ................................................................................. 2
Statement Regarding Oral Argument ........................................................................ 3
Table of Contents ...................................................................................................... 4
Index of Authorities ..................................................................................................6
Statement of the Case ................................................................................................ 7
Statement of Facts and Background.......................................................................... 7
Factual Background. ................................................................................................. 7
Procedural Background .............................................................................................. 9
Summary of the Argument ......................................................................................... 9
Argument and Authorities ………………………………………………………...11
Appellants’ Issue No. 1:
THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE
BUSINESS RECORDS AFFIDAVIT WITH THE DEED OF TRUST
AND SUBSTITUTE TRUSTEE’S DEED INTO EVIDENCE DESPITE
BEING IN VIOLATION OF THE TEXAS RULES OF EVIDENCE 902(2)
AND 902(10)……..……………………………………………………….11
Appellee’s Response to Issue No. 1:
APPELLANT’S ISSUE NO. 1 MUST FAIL AS ALLOWING THE
BUSINESS RECORDS AFFIDAVIT WITH THE DEED OF TRUST AND
SUBSTITUTE TRUSTEE’S DEED INTO EVIDENCE WAS NOT AN
ABUSE OF DISCRETION AS THE BUSINESS RECORDS AFFIDAVIT
DOES NOT VIOLATE THE TEXAS RULES OF EVIDENCE 902 (2) AND
902(10) ………………..…………………….……………………….. 11
Appellant’s Issue No. 2:
BRIEF OF APPELLEE PAGE 4
THE TRIAL COURT ERRED IN ISSUING AN IMPROPER JUDGMENT
AND PREVENTED APPELLANT FROM PROPERLY PRESENTING ITS
APPEAL ............................... ………………..………………………….. 13
Appellee’s Response to Issue No. 2:
THE TRIAL COURT DID PROPERLY ISSUED JUDGMENT AFTER
PRESENTING OF ARGUMENT OF COUNSEL AND REVIEW OF THE
EVIDENCE PRESENTED .. ………………..………………………….. 14
Conclusion and Prayer ........................................................................................... 14
Certificate of Service .............................................................................................. 16
Appendix ................................................................................................................ 17
BRIEF OF APPELLEE PAGE 5
INDEX OF AUTHORITIES
Case Law:
Roper v. CitiMortgage, Inc., No. 03-11-00887-CV, Mem. Op. (Tex.App.−Austin,
Nov. 26, 2013) ……………………………………………………………..12, 13
In re E.A.K, 192 S.W.3d 133,142 (Tex. App.−Houston [14th Dist.] 2006, pet.
denied) ……………………………………………………………………….....13
Rodriquez v. CitiMortgage, Inc., 03-10-00093-CV, 2011 WL 182122
(Tex.App.−Austin, Jan. 6, 2011, not
pet.)………………………………………………………………...…………...13
Rockwall Commons Assocs., Ltd. v. MRC Mortg. Grantor Trust I, 331 S.W.3d 500,
511 (Tex.App.−El Paso 201, no
pet.)…………………………………………..……………………………….....13
Codes and Statutes
Tex. R. Evid. 902(2)…………………………………………………10, 11, 12, 13
Tex. R. Evid. 902(10)………….…………………………………………10, 11, 13
Tex. R. Evid. 902(8)………………………..……………………………..…10, 13
BRIEF OF APPELLEE PAGE 6
BRIEF OF APPELLEE
TO THE HONORABLE JUSTICES OF THIS COURT:
COMES NOW Appellee, BANK OF AMERICA, N.A., hereinafter referred
to as “BANA”, and hereby submits its brief in the above styled and numbered
appeal. In support thereof, BANA respectfully shows the following:
STATEMENT OF THE CASE
Nature of the Case:
This is a forcible detainer suit.
Trial Court:
The Honorable Linda A. Rodriguez, Hays County Court at Law Number
Two (2) of Hays County, Texas.
Trial Court's Disposition:
A non-jury eviction trial was set April 11, 2014. The Trial Court heard
and considered evidence and testimony presented by BANA as well as
Appellant’s testimony and exhibits and subsequently awarded possession of the
property located at 541 Bayou Bend, Buda, Texas 78610 (the "Property") to
BANA. (C.R. Pgs. 240-241). Defendants appealed.
STATEMENT OF FACTS AND BACKGROUND
Factual Background:
1. On February 29, 2008, Kevin Allen Tower and Karrie Lynn Tower
BRIEF OF APPELLEE PAGE 7
(“Appellants”) executed a Deed of Trust granting Mortgage Electronic
Registration Systems, Inc., as Nominee for Standard Pacific Mortgage, Inc., a
Delaware Corporation a first lien security interest in the Property (the "Deed of
Trust"). (C.R.., EX. A-1, Pgs. 141-149).
2. The Deed of Trust, Section 18, provided that:
If the Property is sold pursuant to this section 22, Borrower or any
person holding possession of the Property through Borrower shall
immediately
surrender possession of the Property to the purchaser at that
sale. If possession is not surrendered, Borrower or such
person shall be a tenant at sufferance and may be removed
by writ of possession or other court proceeding.
3. On December 2, 2009, the Deed of Trust was assigned to BAC
Home Loans Servicing, LP Formerly Known as Countrywide Home Loans
Servicing, LLC by means of a recorded Assignment of Note and Deed of
Trust.(C.R. Ex. A-2 ., Pgs. 151-153).
4. On September 4, 2012, the Property was sold at a non-judicial
foreclosure sale (the "Foreclosure Sale"). The Grantee on the Substitute
Trustee's Deed was BANA. (C.R. Ex. A-3, Pg. 154-157).
5. On December 28, 2012, BANA provided Appellants, and all other
Occupants, written notice to vacate the Property. (C.R. EX. A-4, Pgs. 158-174).
It is undisputed that the Appellants failed to surrender possession of the
Property.
BRIEF OF APPELLEE PAGE 8
Procedural Background:
6. On January 22, 2013, BANA filed Cause No. F13-002J5 in the
Justice of the Peace, Precinct 5, Hays County, Texas seeking a judgment for
possession. (C.R. Pgs. 8-11). On April 18, 2013 the Justice of the Peace
Court granted possession of the Property to BANA by Default. (C.R. Pg. 27).
7. On April 22, 2013, Appellants filed their appealed and the Appeal
was assigned to County Court at Law Number Two.
8. On April 11, 2014, at trial in County Court at Law Number Two,
BANA presented evidence of the facts set forth in paragraphs 1 through 5
above. BANA presented the evidence by means of a business records affidavit
(C.R. Pgs., 139-141, R.R. Pg. 4). Appellants objected to the entry of the exhibits
attached to the business records affidavit. The trial Court took the matter under
advisement (R.R., Pg. 15).
9. On June 9, 2014, the Trial Court entered judgment granting BANA
possession of the Property. (C.R. Pgs. 240-241).
10. On June 19, 2014, Appellants filed their notice of appeal. (C.R. Pgs.
241-243).
SUMMARY OF THE ARGUMENT
11. Appellant’s issue number on appeal: Did the trial court abused its
discretion by allowing the Business Records Affidavit with the Deed of Trust
and Substitute Trustee's Deed into evidence despite being in violation of Texas
BRIEF OF APPELLEE PAGE 9
Rules of Evidence 902(2) and 902(10)?
12. Appellants assert that the evidence offered by BANA by means
of a business records affidavit was insufficient to prove a proper chain of title and
right to foreclose, the business records affidavit was invalid as the custodian of
the records was not an employee of the entity which created the records and that
the deeds of trust, assignments and substitute trustee deeds are not business
records but are public records that must be entered by stamp or certification
pursuant to Tex. R. Evid. 902(2). Brief of Appellant at 11.
13. BANA responds that the Trial Court did not err in allowing the
business records affidavit into evidence. Appellant’s title claims and issues
regarding BANA’s right to foreclose were ruled upon in favor of BANA by
judgment entered on January 2, 2014. (C.R., Pgs. 219-227). A custodian of
records is not required to be the employee of the creator of the record. A
note, deed of trust or substitute trustee’s deed can be proven up as business
record and may also be self-authenticating as an acknowledged document
pursuant to Tex. R. Evid. 902(8).
14. Appellant’ s issue two on appeal: The trial court erred in issuing an
improper judgment and prevented the Appellant from properly presenting its
appeal. Brief of Appellant at 12.
15. Appellants assert that they were not given a fair opportunity to
BRIEF OF APPELLEE PAGE 10
present evidence of superior right to possession or to disprove the elements of
forcible detainer.
16. BANA responds that all title claims affecting the right to foreclosure
and superior right to possession were ruled upon in favor of BANA by judgment
entered on January 2, 2014. (C.R., Pgs. 219-227). Appellants were provided a
fair opportunity to disprove elements of the forcible detainer. As the record
indicates, Appellants made no offer of evidence, nor was any disallowed by the
Trial Court.
ARGUMENT AND AUTHORITIES
Appellant’s Issue No. 1:
THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING
THE BUSINESS RECORDS AFFIDAVIT WITH THE DEED OF
TRUST AND SUBSTITUTE TRUSTEE’S DEED INTO EVIDENCE
DESPITE BEING IN VIOLATION OF THE TEXAS RULES OF
EVIDENCE 902(2) AND 902(10).
BANA’s Response to Issue No. 1:
APPELLANT’S ISSUE NO. 1 MUST FAIL AS ALLOWING THE
BUSINESS RECORDS AFFIDAVIT WITH THE DEED OF
TRUST AND SUBSTITUTE TRUSTEE’S DEED INTO
EVIDENCE WAS NOT AN ABUSE OF DISCRETION AS THE
BUSINESS RECORDS AFFIDAVIT DOES NOT VIOLATE THE
TEXAS RULES OF EVIDENCE 902 (2) AND 902(10).
17. Appellants assert that the evidence offered by BANA by means
of a business records affidavit was insufficient to prove a proper chain of title and
right to foreclose, the business records affidavit was invalid as the custodian of
BRIEF OF APPELLEE PAGE 11
the records was not an employee of the entity which created the records and that
the deeds of trust, assignments and substitute trustee deeds are not business
records but are public records that must be entered by stamp or certification
pursuant to Tex. R. of Evid. 902(2).
18. All issues regarding title and right to foreclose have been
adjudicated in favor of BANA. The Trial Court abated the instant case until
resolution of Cause No. 13-1012 filed in District Court of Hays County, Texas on
May 8, 2013 which was removed to Federal Court as Case No. A-13-CA-500-SS
in the United States District Court for the Western District Texas – Austin
Division. Upon entry of judgment by the United Stated District Court, BANA
filed its motion for to lift abatement of the instant case (C.R., Pgs. 214-218). An
agreed judgment lifting the abatement was entered by the Trial Court on March
11, 2014. (C.R., Pg. 323)
19. Appellants assert the business record affidavit entered into evidence
by BANA is invalid as the custodian of records is not employee of the creator of
the record. The rules of evidence do not require that the qualified witness who
lays the predicate for the admission of business records be their creator, be an
employee of the same company as the creator, or have personal knowledge of the
contents of the record – personal knowledge of the how the documents were
prepared will suffice. Roper v. CitiMortgage, Inc., No. 03-11-00887-CV, mem.
BRIEF OF APPELLEE PAGE 12
op. at 22 (Tex. App.− Austin, Nov., 27, 2013), In re E.A.K, 192 S.W.3d 133,142
(Tex. App.−Houston [14th Dist.] 2006 pet. denied), Rodriguez v. CitiMortgage,
No. 03-10-00093-CV, 2011 WL 182122, at 5 (Tex. App. – Austin, Jan. 6, 2011,
no pet). The custodian of records avers in the business records affidavit that the
custodian has care, custody and control of records regarding the forcible entry and
detainer proceeding against Appellants. Furthermore, the custodian avers that the
custodian is familiar with how the documents were prepared and transmitted to be
included in the record in compliance with Tex. R. Evid. 902(10).
20. Additionally, Appellants assert that the Trial Court erred in allowing
the business record affidavit along with the deed of trust and substitute trustee’s
deeds as they are public records that must be presented as evidence in the form of
certified copies pursuant to Tex. R. Evid. 902(2). Appellant’s assertion is
incorrect in that a notarized document such as a deed of trust or substitute trustee’s
deed is self-authenticating as documents acknowledged by notary public. Roper at
23, Rockwall Commons Assocs. Ltd. v. MRC Mortg. Grantor Trust I, 331 S.W.3d
500, 511 (Tex. App. – El Paso 2010, no pet). As the deed of trust and substitute
trustee’s deed are properly notarized they are self-authenticating and admissible
under Tex. R. Evid. 902(8).
Appellant’s Issue No. 2:
THE TRIAL COURT ERRED IN ISSUING AN IMPROPER
JUDGMENT AND PREVENTED APPELLANT FROM PROPERLY
BRIEF OF APPELLEE PAGE 13
PRESENTING ITS APPEAL.
BANA’s Response to Issue No. 2:
THE TRIAL COURT DID PROPERLY ISSUED JUDGMENT
AFTER PRESENTING OF ARGUMENT OF COUNSEL AND
REVIEW OF THE EVIDENCE PRESENTED.
21. Appellants assert that they were not given a fair opportunity to
present evidence of superior right to possession or to disprove the elements of
forcible detainer court. As previously stated above, after abatement of the instant
case, all title claims affecting the right to foreclosure and superior right to
possession were ruled upon in favor of BANA by judgment entered on January 2,
2014 (C.R., Pgs. 219-227).
22. Appellants were provided a fair opportunity to disprove all elements
of the forcible detainer as the record does not indicate any offer of evidence by
Appellants nor any disallowed by the Trial Court. Additionally, in their brief,
Appellants do not indicated what evidence would have been offered by Appellants
or that the Trial Court refused a request by Appellants to enter evidence into the
record.
CONCLUSION AND PRAYER
The Trial Court properly issued a judgment and awarded possession of
the property to BANA. BANA therefore respectfully requests that this Court
affirm the County Court’s judgment and render judgment in favor of BANA.
BRIEF OF APPELLEE PAGE 14
Respectfully Submitted,
/s/ Jonathan M. Williams
jwilliams@mlg-efaultlaw.com
State Bar No. 00791932
MARINOSCI & BAXTER
MARINOSCI LAW GROUP, P.C.
14643 Dallas Parkway, Suite 750
Dallas, Texas 75245
Phone: (972) 331-2100
Fax: (972) 331-5240
ATTORNEYS FOR APPELLEE
BANK OF AMERICA, N.A.
CERTIFICATE OF COMPLIANCE
Relying on the word court function in the word processing software used to
produce this document, I certify that the numbers of words in this brief (excluding
any caption, authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, and appendix) is 1,169.
/s/ Jonathan M. Williams
Jonathan M. Williams
BRIEF OF APPELLEE PAGE 15
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Brief of
Appellee was served via the following method to the following persons on the
th
12 day of March 2015.
Kevin Tower Via first class mail and
541 Bayou Bend CMRRR# 9407 1118 9956 2414 3898 87
Buda, Texas 78610
Karrie Lynn Tower Via first class mail and
541 Bayou Bend CMRRR# 9407 1118 9956 2414 3866 40
Buda, Texas 78610
/s/ Jonathan M. Williams
Jonathan M. Williams
BRIEF OF APPELLEE PAGE 16
No. 03-14-00404-CV
In the Third Court of Appeals
Austin, Texas
KEVIN TOWER AND KARRIE LYNN TOWER
Appellants,
V.
BANK OF AMERICA, N.A.
Appellee.
ON APPEAL FROM THE COUNTY COURT AT LAW, HAYS COUNTY, TEXAS
CAUSE NO. 13-0320-C
APPELLEE’S APPENDIX
Appendices:
Judgment of the Trail Court……………………...………………….…Appendix 1
Judgment of Kevin Tower and Karrie L. Tower v. Bank of America, et al.; Case
No. A-13-CA-500-SS; In the United States District Court for the Western
District Texas – Austin Division ………………………………………Appendix 2
BRIEF OF APPELLEE PAGE 17