Kb Realtron Management v. Stephanie Deleon

Opinion

ACCEPTED

13-13-00411-CV

FILED THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS

IN THE 13TH COURT OF APPEALS 4/21/2015 10:23:31 PM CORPUS CHRISTI DORIAN RAMIREZ CLERK

4/21/15

DORIAN E. RAMIREZ, CLERK 13-13-00411-CV BY DTello IN THE COURT OF APPEALS OF TEXAS RECEIVED IN THIRTEENTH DISTRICT 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS CORPUS CHRISTI 4/21/2015 10:23:31 PM DORIAN E. RAMIREZ

Clerk

KBREALTRON MANAGEMENT

Appellant

v.

STEPHANIE DELEON

Appellee

On Appeal from the County Court at Law # 1 Travis County, Texas

Trial Court Cause No. C-1-V-12-002167

APPELLANT'S BRIEF

Kevin Bierwirth

13276 Research Blvd. Ste. 204 Austin, Texas 78750

(512) 825-0331

IDENTITY OF THE PARTIES

Appellant

Kevin Bierwirth 13276 Research Blvd. Ste. 204 Austin, Texas 78750

Appellee

Stephanie DeLeon 4108 Kilgore Lane Austin, Texas 78727

Attorney for Appellee in JP Court and ancillary proceedings

Matthew J. Wagner Hall Attorneys, P.C. 701 Brazos, Suite 500 Austin, Texas 78701

111

TABLE OF CONTENTS

Identity of Parties and COllllsel.. .......................................................... .ii Table of Contents .... .. ... ... .... ..... ... ...... ... .... ..... ... .... ..... ...... ....... ...... .. ..iii Table of Authorities ........................................................................... v Statement ofJurisdiction ................ .. ......... .. .. ...... .. .............................. 1 Statement of the Case ............ ... ... ...... .. . ......... ... ...... .. . ............... .. . ....... 1 Issues Presented ............................................................................... 1

ISSUE 1 DID APPELLANT PROVE THAT HE WAS ENTITLED TO THE RELIEF REQUESTED?

ISSUE 2 DID THE PRESIDING JUDGE VIOLATE CANONS OF THE TEXAS CODE OF JUDICIAL CONDUCT

ISSUE 3 WAS APPELLANT DENIED DUE PROCESS BY A JUDGE WHO WAS BIASED AND PREJUDICED

Statement of Facts ......... ......... ............... ......... ......... ......... ............... 2 Summary of Argument. ..... ... .... .. ... .. ... .... ... ... .... .. ... .. ... ....... .... .. .... .... .5 Arguments and Authorities ................................................................ 6 Conclusion ... ... .. ....... .. . ......... .. ................... .. .......... .... ..... .. ..... .. ..... 16 Prayer. .. .. . ...... ... ... ........ .. .. ... .. .. ...... ... ........ .. .. ........ .. .. ..... .. .. .......... 16 Certificate of Service ......... .. .......... .. . ......... .. .......... .. . ......... .. ..... .. .... 17 Certificate of Compliance ... .. ... .... ... ... .. .. .. ... .. ... .... ... ... ...... .. ... .... ... ... .17

Appendix

IV

TABLE OF AUTHORITIES

Cases In re Thoma, 873 S.W.2d 477, (Tex.I994) ... .. . ... .... .. ... ... .. ...... .... ..... ... ... 15 United States v. Bray, 546 F.2d 851 (lOth Cir. 1976) ................................ 14 United States v. Haywood, 411 F.2d 555 (5 th Cir. 1969) .... . , ....... .. ..... .... .... 14 United States v. Lanham, 416 F.2d 1140 (56 th Cir. 1969) ........ , ... .. .. ... .. .. ... 14 Vaughn v. State, 3 Tenn.Crim.App. 54,456 S.W.2d 879, 883 ...................... 15 Statutes Texas Civil Practice & Remedies Code §51.012 ......... ... ...... ... ...... ... ...... .. 1 Texas Local Government Code §I92.001.. ....... .. .......... .... .. .. ....... .. . ....... .1 Constitution Texas Constitution, Art. 1, Sec. 13 ......... .. .......... .. . ......... .. .............. .. . .15 Texas Constitution, Art. 1, Sec. 19 ..................................................... 15 Texas Constitution, Art. 5, Sec. 6 ............. .. ................... .. .. .. ... .. .. .......... 1 Authorities Texas Code ofJudiciaI Conduct, Canon 1 and Canon 2 ........... , ... .... .... ... .... 6

v

STATEMENT OF JURISDICTION This Court has jurisdiction of the appeal because Appellant appeals a final Judgment from the Travis County Court at Law #1, Travis County, Texas. Texas Civil Practice & Remedies Code §5l.0l2, Texas Local Government Code §192.00l, and Texas Constitution, Art. 5, Sec. 6.

This Court has jurisdiction concerning appeal of forcible detainer proceedings, Texas Property Code, Chapter 5l.

STATEMENT OF THE CASE

This is an appeal of a Motion for Possession of Property and Unpaid Rent from County Court which was preceded by an action for forcible detainer from the justice court. The trial occurred on February 2, 2012 and judgment was rendered on February 2,2012 and timely appealed.

ISSUES PRESENTED

ISSUE 1

DID APPELLANT PROVE THAT HE WAS ENTITLED TO THE RELIEF REQUESTED?

ISSUE 2

DID THE PRESIDING JUDGE VIOLATE CANONS OF THE TEXAS CODE OF JUDICIAL CONDUCT

ISSUE 3

WAS APPELLANT DENIED DUE PROCESS BY A JUDGE WHO WAS BIASED AND PREJUDICED

STATEMENT OF FACTS

Kevin Bierwirth d/b/a! KBRealtron Management, (hereinafter Appellant) is a man who, after suffering an economic downturn, studied and became very aware of the rampant fraud in mortgage foreclosures and, as a result, has availed himself of his due process rights in fighting mortgage fraud in his own cases.

As a result of his actions in the courts against unlawful acts, such a robo-

signing, incomplete chain of title, etc., attorneys for mortgage companies have libeled and slandered his name. These very same bar card members have access to and relationships with the bar card carrying attorneys who have attained the rank of judge.

There is no way that Appellant can successfully staunch the rumor campaign which takes place behind his back. It is however, a fact that it is practiced and it is a fact that the rumors have an effect on the opinions of the judges.

Appellant believes that the Court will see the expression of that prejudice in his appeal.

Appellant has, for many years, had a d/b/a of KBRealtron Management. In this capacity, Appellant manages rental properties for landlords and sometimes for his own properties. It was in the latter capacity that he leased a property to Appellee.

Before Appellee signed the lease, (CR p.146-159, RR Vol. 2, Plaintiff's Exhibit 1, RR Vol. 3), Appellee was fully informed that the property had been the subject of a foreclosure, which was on appeal, and that should Appellant lose possession, she would have to vacate the premises on short notice which would automatically facilitate the return of her deposit.

Appellee, after having the benefit of full disclosure, nonetheless elected to lease the premises.

Appellant inadvertently mislaid the $1200 certified check for the deposit, notified the Appellee and she cancelled the check. These were to be the only funds Appellant was to receive for the duration oftime Appellee occupied the premises.

Appellee refused to make payments pursuant to the lease, and after notice to Appellee, Appellant filed for forcible detainer. Appellee hired an attorney, Matthew J. Wagner, to defend her position at the forcible detainer case at the Justice level. It is clear from Wagner's pleadings, (CR page 173-181), that he had no llllderstanding of possessory interest in real property.

The law is clear, there are two issues in real property, one the right to title and, two, the right of possession. Appellant had never been removed from possession, and maintained the legal right to lease the property. Mr. Wagner's argument prevailed at the JP level and the case was appealed to county court, for a trial de novo.

Mr. Wagner was told on two separate occasions by district judges in a concurrent case that he was mistaken as to the possession issue. The judges told Mr. Wagner that as long as Appellant maintained his possessory interest, he could rent, lease, let sit idle, or anything else he chose to do with the property.

Mr. Wagner apparently finally got the message and withdrew as Appellee's counsel on August 15,2012. (CR page 311-313)

Appellee resided in the property from December 17, 2011, (CR page 267 line 20), to sometime in April of 2012.

Appellee executed a lease on the property on November 23, 20ll. eRR Vol.

3 page 14)

Appellee acknowledged that before signing the lease she was informed that the house was in a foreclosure process. (CR page 270, line 19-25)

Appellee testified that she was informed of the legal status of the property before she signed the lease.

Appellee agreed to all the conditions and did, in fact, sign the lease.

Appellee lived in the property from December 17, 2011 to April 1, 2012 and did not pay any consideration whatsoever towards the lease commitment.

Appellant is due and owing the judgment pled for at the county court.

SUMMARY OF ARGUMENT

Appellant filed a forcible detainer suit against Appellee. Appellant had a signed lease and Appellee breached the contract. Appellee refused to pay and refused to leave.

Appellant had evidence of the lease, and Appellee testified that she had not paid Appellant any of the monies prescribed in the lease.

Appellant filed the original petition and appealed to a de novo court, having full faith the legal system that would find that Appellee had breached the contract, and as result, would be ordered to pay.

Appellant did not believe he would be denied his rights and remedy, as the case was so clear cut.

Instead, Appellant was treated with contempt, disdain and an outright show of hatred on the part of the appellate judge, J. David Phillips. Judge Phillips called Appellant a liar and a thief in open court, although there is no evidence in the record that Appellant had lied or stolen from anyone, and, as a consequence of his personal prejudice, Judge Phillips denied him relief. Instead, Judge Phillips made it clear that Appellee could breach the contract and not be held liable because she had leased a property from a man that Judge Phillips personally reviled.

There is not and should not be a place in Texas jurisprudence where this is allowed to transpire.

ARGUMENTS AND AUTHORITIES

ISSUE 1

DID APPELLANT PROVE THAT HE WAS ENTITLED TO THE RELIEF REQUESTED?

At trial, Appellant provided evidence that Appellee had signed a lease, Appellee had occupied the property for close to four months and Appellee had paid no consideration whatsoever, an obvious breach of the contract.

Appellant provided the Court with the amount due and owmg on the contract.

Appellant proved to the Court that he was entitled to the relief requested.

ISSUE 2

DID THE PRESIDING JUDGE VIOLATE CANONS OF THE TEXAS CODE OF JUDICIAL CONDUCT

Canon l: An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintain, and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary is preserved. The provisions of this Code are to be construed and applied to further that objective.

Canon 2: Avoiding Impropriety and the Appearance of Impropriety in All of the Judge's Activities. A. A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality ofthe judiciary.

It is evident from the transcript of this trial that Judge J. David Phillips held absolute enmity and contempt for Appellant from the beginning to the end of the hearing.

It was further obvious that because of his personal disdain for Appellant, Judge Phillips, in order to maintain the integrity of the Court, should have recused himself. Instead, Judge Phillips used the Court to vilify, embarrass and further torture Appellant. Appellant asserts the rationale behind Judge Phillips enmity was based on circulating rumors and previous litigation.

In the transcript of the case, Appellant is testifying as to the attempts to induce Appellee to pay her deposit and rent, and states, at RR VoL 2, beginning on page 6, and continuing through page 7:, "According to my bank, she was missing numbers or she didn't do it properly or whatever, and my bank felt like she was doing it purposely.

THE COURT: Your bank felt like it was purposely?

MR. BIERWIRTH: I have a letter-

THE COURT: If I go kick your bank, is it going to say ouch?

MR. BIERWIRTH: I'm sure they will. I have a letter here saying - that I will put as evidence. And that was just for the deposit only.

THE COURT: So where does it say your bank feels like it was being done purposely?

MR. BIERWIRTH: Well, I thought it was in that letter.

THE COURT: The truth, please. The truth.

MR. BIERWIRTH: The credit transaction amount - okay.

THE COURT: Not there.

MR. BIERWIRTH: My mistake. They just said it was invalid account numbers, HCRR transaction code, which I don't know what it means. Unless it was not getting through electronically.

THE COURT: Right.

Although it was discussed and exhibited in the hearing, the letter was not entered into evidence in the court because Appellant felt badgered and forgot to do so.

The transcript further reflects the acerbic attitude and demeanor ofthe judge:

In RR Vol. 2 page 8: THE COURT: Will you just tell me the story why she owes you money, please?

MR. BIERWIRTH: For nonpayment of rents.

THE COURT: How much? How much rent did she not pay?

MR. BIERWIRTH: From ...

THE COURT: It's very entertaining to have to drag everything out of you, but it's a waste oftime.

(At that point, Appellant knew it was pointless to go on, obviously Judge Phillips intended to rule against him.)

MR. BIERWIRTH: I'm sorry. From December 16th to - it looks like to 4-

1-2012.

THE COURT: What happened on 4-l-2012?

MR. BIERWIRTH: 4-1-2012, she - actually let me - I have some notes that I can track. She moved out without notice to me - without written notice, and I believe that was sometime a little after April. But when I discovered she moved out in April, we went in and cleaned up the property and had it painted.

THE COURT: So you're only asking for rent April 1S\ which is when she vacated?

MR. BIERWIRTH: From December to April 11th, yes sir. And I don't know if we can -

THE COURT: Do you have a copy ofthe lease?

MR. BIERWIRTH: Yes, sir, I do.

THE COURT: Do you want to put it into evidence?

MR. BIERWIRTH: Yes, sir.

In RR Vol.2, page 18, lines 1-3, the judge establishes that Appellee owes at least $2435.

RR. Vol. 2, page 22: Bierwirth questioning DeLeon:

Q. (Bierwirth): And that is a legal binding contract. You're aware of that, correct?

A. (DeLeon: I'm not aware, no.

Q. Didn't you state in Ms. Triana's court that it was, in fact, a legal- you understood it was a legal binding contract?

A. I understand that leases are legal binding contracts.

MR. BIERWIRTH: Nonresponsive, Your Honor.

THE COURT: Would you let her answer it-

MR. BIERWIRTH: She's not answering it.

THE COURT: --before you start talking? She said she understands that leases are legal binding contracts.

MR. BIERWIRTH: Okay.

THE COURT: You're trying to fool me or what?

MR. BIERWIRTH: No, sir, I'm just trying to-

THE COURT: I know what her answer is. Her answer is, she thought it was a legal contract when she signed it.

RR Vol. 2, page 23 lines 8-13:

Q. Have you paid any funds, any money?

A. At this time no funds have been actually paid. Only attempted.

Q. How long did you stay at the property?

A. From December 17th , 2011, through March - I'm sorry, April 1'\ 2012.

Q. Okay. Isn't it true that you filed a motion for summary judgment and the judge had ruled that I did have a right to the property and I did have a right to collect the monies for the property, and whether it was foreclosed or not, as long as I had possession ofthe property?

A. The judge - there were some ruling, yes. I'm not that familiar. I have to reread all the documents.

RR Vol. 2, page 24, line 15:

THE COURT: Any other evidence for your side, Mr. Bierwirth?

MR. BIERWIRTH; Well, I'd like to put in that order here (the summary judgment order) ---actually, I believe here it is. Put in the order denying the summary judgment.

THE COURT: Orders denying motion for summary judgment don't say anything other than the motion is denied.

MR. BIERWIRTH: Okay. Well, I have the summary judgment as well if you would like to read it if it interests you.

THE COURT: Denied. It doesn't mean the judge agreed with you. Just some fault in the motion.

MR. BIERWIRTH: Yes, sir.

THE COURT: All right. Anything else?

MS . DELEON: No, Your Honor.

THE COURT: Okay. I am reminded of an old Woody Guthrie song called "Pretty Boy Floyd", by golly. Pretty Boy Floyd was kind of a hero in Oklahoma because he robbed banks, and banks were kind of mean to people at that time. Part of the song says, "As through this world you travel, you see some funny men. Some will rob you with a six-gun and some with a fountain pen." Ain't that the truth.

(Although the record does not reflect this, Judge Phillips actually played the Woody Guthrie song in the court.)

And you're one of them, Mr. Bierwirth. How dare you rent something to somebody when it's been foreclosed on and you've already given a deed to the bank? How dare you?

MR. BIERWIRTH: I didn't. They have not - I still have possession of the property, and they have not tried --.

THE COURT: You don't have posseSSIOn of the property. Judge Cooper wrote an order that says this order will act as writ of possession for the property for the bank and that bank has now transferred it to somebody else, to the FDIC or Fannie Mayor somebody.

(Judge Phillips is speaking of a summary judgment which had occurred in district court early in the case and was not in evidence in the Court at the time. Obviously, Judge Phillips had perused other records and fed his flames of

13

prejudice by taking into account matters which were not before him for adjudication.)

MR. BIERWIRTH: No, sir.

THE COURT: And you pretend that you have the right to possession of the property?

MR. BIERWIRTH: I do have a right to possession of the property.

THE COURT: Because it's been foreclosed on and transferred to two other banks and your right to possession is?

MR. BIERWIRTH: It hasn't been transferred, Your Honor. And I have -

THE COURT: Well, according to the deed records it has.

MR. BIERWIRTH: Your Honor, I have - I have a book like this. And when Ms. DeLeon rented the property, the bank was in litigation, as I told her before she moved in. And I also told her that they haven't had gotten possession, nor did they file for possession or anything.

THE COURT: I think you're a liar and a thief. Just to get that off my chest.

I think you're a liar and a thief. And she gets judgment in this case, and I assess all cost against you. You can be excused.

MS . DELEON: Thank you, Your Honor.

THE COURT: I'll write you up an order if you want to stay.

MS . DELEON: I would very much appreciate that.

THE COURT: There's one for each of today's contestants. There's a judgment for you that says plaintiff take nothing and defendant have her costs.

The Motion before the Court was a Motion for Possession of Property and Unpaid Rent.. CR page 320-322 .

Appellant presented a bona fide lease. Appellee testified that she had lived on the property the subject of the lease, that she had full disclosure of the foreclosure before she moved in and that she hadn't paid a cent the entire time she occupied the property.

It is clear that Appellee breached the contract.

That was the matter before the court.

"The comments of the trial judge, which tainted appellant's presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection." United States v. Bray, 546 F.2d 851 (10 th Cir. 1976); United States v. Lanham, 416 F.2d 1140 (56 th Cir. 1969)(actions of trial judge who improperly injected himself into role of prosecutor during trial destroyed neutrality and impartiality of trial atmosphere, defendant's credibility, and defendant's presumption of innocence, and constituted plain error); United States v. Haywood, 411 F.2d 555 (5 th Cir. 1969).

Texas Constitution, Art. 1, Sec. 13. Remedy by due course of law. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

Texas Constitution, Art. 1, Sec. 19. No citizen ofthis State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law ofthe land.

It is an adage as old as time that a participant in a judicial hearing is entitled to a fair and independent law giver, whether it be a judge or a jury.

"Aside from all else, 'due process' means fundamental fairness and substantial justice. Vaughn v. State, 3 Tenn.Crim.App. 54,456 S.W.2d 879,883 ." Black's Law Dictionary, 6th Edition, page 500.

It is axiomatic that an independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining" and enforcing, and should observe high standards of conduct so that the integrity and independence of the judiciary is preserved. In re Thoma, 873 S.W.2d 477, (Tex.1994).

Appellant asserts that Judge Phillips, after being presented with the evidence of a lease and the testimony of a breach of that lease, denied him due process by sanctioning the conduct of the tortfeasor. Judge Phillips conduct was intentional and willful and resulted in an unfair ruling which damaged Appellant.

There is no evidence before this Court, just as there was no evidence before Judge Phillips, that Appellant was "a liar and a thief'. Appellant filed in the Court for due process, believing that, even though he had been previously exposed to Judge Phillips' extreme rancor, he would nevertheless receive the benefit of the law. Instead, Judge Phillips denied Appellant his remedy and is so doing, threw due process out the window.

CONCLUSION

Kevin Bierwirth presented evidence to the Court that he and Stephanie DeLeon had signed a valid lease for the property at 3305 Spaniel Drive, Austin, Texas 78759, Ms. DeLeon occupied the property and Ms. DeLeon had breached the contract by not paying any monies whatsoever, as the lease required. Appellee still owes Appellant the defaulted payments and fees required by the contract. Appellant was entitled to payment as a matter of law, and because of his bias, Judge J. David Phillips erred when he refused to find in Appellant's favor.

PRAYER

Appellant prays that this Court find in Appellant's favor, reverse the judgment of the Travis County Court at Law #1 and render a judgment in favor of Appellant for $10,055.42 plus attorney's fees in the amount of $2,500.00.

Respectfully submitted,

CERTIFICATE OF SERVICE

.I, the undersigned, l1erebycertify that a. true and correctcopy of Appellant's Briefwas sent by United States Postal Service on April 21, 2015 to:

Stephanie DeLeon 4108 Kilgore Lane Austin, Texas 78727

CERTIFICATE OF COMPLIANCE

I, Kevin Bierwirth, :the undersigned, do hereby certify that the number of words in his Appellant's Brief is 3,297 words.

APPENDIX

EXHIBIT 1 Judgment

EXHIBIT 2 Reporter's Record Vol. 2

EXHIBIT 3 Reporter's Record Vol. 3

EXHIBIT 4 Excerpts from Clerk's Record

EXHIBIT 1

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EXHIBIT 2

1

1 REPORTER'S RECORD 2 VOLUME 2 OF 3 VOLUMES 3 TRIAL COURT CAUSE NO. C~1-CV-12-002167

4 COURT OF APPEALS NO. 13-13-00411-CV 5 KB REALTRON MANAGEMENT IN THE COUNTY COURT

6 7 VS. AT LAW NO. 1 8 9 STEPHANIE DELEON TRAVIS COUNTY, TEXAS 10 11 *****************************************'***************

12 MOTION - WRIT OF POSSESSION 13 ********************************************************

14 15 On the 10th of June, 2013, the following 16 proceedings came on to be heard in the above-entitled 17 and numbered cause before the Honorable J. David 18 Phillips, Judge presiding, held in Austin, Travis 19 County, Texas:

20 Proceedings reported by machine shorthand. 21

22 23 24 25

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

2

1 A P PEA RAN C E S 2

3 PLAINTIFF APPEARING PRO SEE:

4 Mr. Kevin Bierwirth 13276 Research Boulevard, Suite 204 5 Austin, Texas 78750

6

7 DEFENDANT APPEARIING PRO SE:

8 Ms. Stephanie DeLeon 9 4108 Kilgore Lane Austin, Texas 78727 10

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

3

1 INDEX 2 VOLUME 2 3 Moti6n - Wr it of Possess i o n

4 June 10 , 2013 5 PAGE VOL. 6 Announcemen ts . 4 2 7

8 Plaintiff's Witnesses Direct Cros s Voir Dire Vol.

9 KEVIN BIERW IRTH 5 2

10 Defendant's Witn esse s Direct Cross Voir Dire Vo l.

11 ST EPHANIE DELEON 15 21 2

12 13 Court 's Ruling . .26 2 14 Adjournment. . 27 2 15 Court Reporter ' s Certificate. . 28 2 16

17 ALPHABETICAL INDEX OF WITNESSES 18 Direct Cross Voir Dire Vol .

BIERWIRTH, KEITH 19 By Mr. Bierwirth 5 2

20 DELE ON, STE PHA NIE By Ms. Deleon 15 2 21 By Mr. Bierwirth 21 2

22

23 EXHIBITS OFFERED BY THE PLAINTIFF 24 EXHI BIT DESCRI PTION OFFERED ADMIT TED VOL.

1 Lease 9 9 2 25 .

Cathy Mata , CSR

County Court at Law No .1 Travi s Cou nty, Texas 512- 854-92 52

4

1 PROCEEDINGS 2 June 10, 2013 3 THE COURT: I call Cause No .

4 C-1-CV-12-002167 , KB Realtron Management versus 09 ,04, 24 5 Steph ani e DeLeon. Yo u are Mr.

6 MR . BIERWIRTH: Kevin Bierwirth.

7 THE COURT: What kind of business ?

8 MR. BIERW IRT H: D/b/a sir.

9 THE COUR T : A person al d/b /a?

09,04,2910 MR . BIERWIRTH: Yes , sir.

11 THE COURT : And Ms. Stephan ie DeLeon 12 appea rs for the other side .

13 MS. DEL EON : Yes, sir.

14 THE COURT: We're here on JP appeal of

16 Yes , sir , Mr . Bierw rith , who is your fir s t 17 witness?

18 MR. BIERWIRTH: No wi tness , sir. I have 19 submitted an affidavit contested to the facts of the And KB Real tron Mana ge ment is lo oki ng for a 21 motion for possession o f property in unpaid rents . Now 22 the--

23 THE COURT: What evidence do you want to 24 present?

MR . BIERWIRTH : Well, we have --

Cathy Mata, CSR

County Cour t at Law No. 1 Travis County, Texas 512-854 -9252

5

1 THE COURT : So mebo dy is going to need to 2 testify .

3 MR. BIERW I RTH : I have a l ease that Ms .

4 DeLeon has , in . fact, rented the property .

Ra ise your rig ht hand, ple ase, .

6 sir .

7 (W i tness sl'o rn ·.)

8 THE COURT: Looks lik e you need an 9 auxil iar y notebook.

MR . BIERWIRTH : Yes , sir . It has gotten 11 huge .

12 THE COURT: Th ey sell those at the Hom e 13 Depot -- or the Office Depot.

14 MR . BIERWIRTH: Looks like I' ll just have 09,06 : 2215 to take some of them out .

16 You may have a cop y of th is already.

17 THE COURT: My name is 18 MR . BIERWIRTH : Your Honor 19 THE COURT: Tell me the sto ry please , sir.

21 KEVIN BIERWIRTH, 22 having been first duly swo rn, t estified as follows:

23 DIRECT EXAMINATION 24 MR . BIERWIRTH: My name is Kev in

I ' m here for KB Realtron Management .

Cath y Ma ta, CSR

County Cour t at Law No. 1 Travis County, Texas 512-854- 9252

6

1 THE COURT: You're the owner of KB 2 Realtron Management. All right. Go ahead.

3 MR. BIERWIRTH: Okay. And Ms. DeLeon back 4 in December -- let me see the lease. Back in December, 09;07;24 5 I believe around the 14th, had leased a property from 6 me.

7 THE COURT: A property that you own?

8 MR. BIERWIRTH: Yes. 16th of December of 9 2011.

09;07;4210 THE COURT: 2011 ?

11 MR. BIERWIRTH: Yes, sir.

12 THE COURT: Okay.

13 MR. BIERWIRTH: She paid a deposit with a 14 cashier's check and then cancelled it later due to the 09;07;5415 fact that I misplaced it. So I've never gotten the 16 deposit nor first month's rent from Ms. DeLeon.

17 THE COURT: At your request she cancelled 18 it because you lost it?

19 MR. BIERWIRTH: Yes, sir.

09;08;0520 THE COURT: And then she never replaced 21 it?

22 MR. BIERWIRTH: Never replaced it. There 23 was several attempts that we tried to get with her to 24 replace that. She kept trying to do a, supposedly, 09;08;2125 electronic transfer. According to my bank, she was

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

7

1 missing numbers or she didn ' t do it properly or 2 whatever, and my ban k felt lik e she was doing it 3 purposely .

4 THE COURT : Your bank felt like it was 09,08 ,4 2 5 purposely?

6 MR. BIERWIRTH : I have a letter --

7 THE COURT: If I go kick your bank , is it 8 going to say ouch?

9 MR. BIERW IRTH : I ' m sure they wil l. I 09,08,50 10 have a letter here saying -- that I will put as 11 evidence. And that was just for the deposit only .

12 THE COURT : So where does it say your bank 13 feels like it was being done purpo sely?

14 MR . BIERWIRTH : Well, I thought it was in 09,09,1615 that letter.

16 THE COURT: The truth, please . The truth.

17 MR. BIERW IRT H: The credit transac tion 18 amount -- okay.

19 THE COURT : Not there.

09,09,442 0 MR. BIERWIRTH : My mis take. They just 21 said it was invalid account numbers, HCHR transaction 22 code , which I . don ' t know what that means . Unless it was 23 not getting through electroni cally.

24 THE COURT: Ri ght .

09 , 10,0025 MR. BIERWIRTH: Okay .

Cathy Mata, CSR

County Court at Law No. 1 Travis County , Texas 51 2 - 854-9252

8

1 THE COURT: So you don 't get y ou r $1 , 200 2 depos it?

3 MR . BIERWIRTH : Correct . Yes , sir. In 4 that process, we've contacted Ms. DeLeon on several 09:10 : 11 5 times to collect the rents behind and replenish the 6 deposit. And on those several occasions, we ' ve been 7 unsuccessful. So we filed an eviction suit in Judge 8 Bass ' court. Bass has ruled in defendant ' s favor.

9 THE COURT: I 'm sorry. Bass what?

09:10:' 5 10 MR. BIERWIRTH: He ruled in defendant's 11 favor . I appealed that case here to the county court.

12 Mr. Jeffrey Kelly was repres enting me. This actuall y 13 had been moved -- or case was filed in district court 14 and went through to district proceedings.

09:11 :0 9 15 THE COURT: Will you just tell me the 16 story why she owes you money , please?

17 MR . BIERW IRTH : For nonpayment of rents.

18 THE CO URT : How much? How much rent did 19 she not pay?

09:11:2120 MR. BIERWIRTH: From - -

21 THE COURT : It's very entertaining to have 22 to drag everything out of you , but it 's a waste of time.

23 MR. BIERWIRTH : I'm sorry. From 24 December 16th to -- it looks like to 4 -1-20 12.

09:11:4825 THE COURT : What happened on 4-1-2012?

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County Court a t Law No.1 Travis County , Texas 512-8 54-9252

9

1 MR . BIERWIRTH : 4 ~1~2012 she ~~ actuall y 2 let me ~~ I have some notes that I can track . She moved 3 out without notice to me ~~ without written notice, and 4 I believe that was sometime a little after April . But 09 ,12, 15 5 when I had disco ver ed she mov ed out in April, we went in 6 and c l eaned up the property and had it painted .

7 THE COURT: So you ' re only asking f or rent 8 Apri l 1st , which is when she vacated?

9 MR . BIERWIRTH : F rom Decem ber to April And I don't know if we can 11 THE COURT: Do you have a co p y of the 12 leas e?

13 MR . BIERWIRTH: Yes , sir , I do .

14 THE COURT : Do you want to put it into

16 MR . BIERWIRTH : Yes , sir .

17 THE COURT: Pla i ntiff ' s Exhibit 1 , the 18 lease , is offered into evidence. Do you have any 19 objection?

( Pl ai ntiff ' s Exhib it No. 1 off ered . )

21 MS. DELEON : No , objection , Your Honor.

22 THE COURT : Plaintiff's 1 admitte d into 23 the e v idence.

24 (Pl ain tiff ' s Exhi bit No . 1 adm itted.)

THE COURT: KB Realtron Management .

Cathy Mat a, CSR

County Cour t a t Law No. 1 Travis County, Texas 512 ~ 854~ 92 52

1 Unusual to see a management company as a landlord .

2 MR. BIERWIRTH: Yes, sir.

3 THE COURT: But you are the landlord?

4 MR. BIERWIRTH: Well, I had an agent, but 09;13;40 5 she had court today, this morning.

6 THE COURT: I'm sorry. What?

7 MR. BIERWIRTH: I have an agent, but she 8 had court this morning.

9 THE COURT: Primary term. 3305 Spaniel.

09;14;0610 And it was a one-year lease.

11 All right. What else do you need tell me?

12 MR. BIERWIRTH: I was also looking for 13 attorney's fees. Mr. Kelly first started this case with 14 an attorney retainer of 2500.

09;14;5315 THE COURT: All right.

16 MR. BIERWIRTH: And I have also filed with 17 the court a break down of running totals of the expenses 18 of the property. And I'm asking for those expenses as 19 well. Also for nonpayment of rent.

09;15;1920 THE COURT: What expenses?

21 MR. BIERWIRTH: We have storage fees.

22 THE COURT: Storage? For what?

23 MR. BIERWIRTH: I exercised that landlord 24 lien for nonpayment of rent and took possession of the 09;15;3525 personal properties and have months of storage fees for

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

1 that. We have --

2 THE COURT: Where ' s the property now, 3 still in the storage?

4 MR . BIERWIRTH : No, sir .

0 9:15: 51 5 THE CO URT: What happened to it?

6 MR. BIERWIRTH: Property was sold. And 7 that is minus off the b ottom line of what I got for the 8 property.

9 THE CO URT : Ho w was it sol d?

09,1 6, 05 10 MR . BIERWIRTH: Sir?

11 THE COURT: How was it sold?

12 MR. BIERW IRTH : Well, some of it was sol d 13 on Craig's List and some of it was on peopl e that 14 were known that were interested in the pr operty .

THE COURT : That were known? Sold it to 16 your friends?

17 MR. BIERW IRT H: Not necessarily friends.

18 People that I've known tha t I used to work for or 19 something like that .

09,16,4520 THE COUR T: So when you to ok the property, 21 did you leave a written notice of 22 MR. BIERWIRTH : Yes. Yes, sir, we have 23 tha t righ t here.

24 THE CO URT: All right.

MR . BI ERWI RTH: Everything was done

Cathy Mata, CSR

Count y Court at Law No. 1 Travis County, Texas 512-854-9252

12

1 properly. Actually, I can't remember the judge next 2 door to you. They had tried to do a replevin. The 3 judge nex~ door told him they were to put so much money 4 into the court registry and that if they didn't by a 09,17,40 5 certain time that I had a right to sell the property.

6 THE COURT: You wanted them to post a bond 7 to recover the property?

8 MR. BIERWIRTH: Yes. Yes, sir. I believe 9 the bond was over I don't quite remember, but I 09,18,0610 believe it was close to 8, 000 if not more. And then she 11 was to put up the $1200.

12 THE COURT: Okay. What else do you want 13 to tell me?

14 MR. BIERWIRTH: I believe that's

16 THE COURT: Ms. DeLeon, do you have any 17 questions for Mr. Bierwirth?

18 MS. DELEON: I would like an opportunity 19 to refute the fact s, but I have no questions .

09,18,5020 THE COURT: Anything else that you think 21 he knows that I ought to hear?

22 MS. DELEON: No, sir. I have a very 23 different version.

24 THE COURT: Thank you. You may step down,

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

13

1 Any other evidence on your side, 2 Mr. Bierwirth?

3 MR. BIERWIRTH: No, sir. Not unless you 4 would like a list of - inventory list.

THE COURT: I don't like anything. Do you 6 want to put it into evidence or not?

7 MR. BIERWIRTH: No, sir.

8 THE COURT: All right. I like that even 9 better. I said I don't like anything. I like it when 09,19,2810 you choose not to put it in evidence.

11 All right. Next. Ma'am, your side.

12 Raise your right hand, please.

13 (Witness sworn.)

14 THE COURT: Oh, one more question for you, 09,20,0115 Mr. Bierwirth. Before you sold the property, did you 16 give notice to the tenant that you were going to have a 17 sale?

18 MR. BIERWIRTH: Yes.

19 THE COURT: The date and time and place of

21 MR. BIERWIRTH: Yes, sir.

22 THE COURT: And it - but you said you 23 didn't have a sale.

24 MR. BIERWIRTH: Originally we had --

09,20,2025 originally I sent her a notice of a date and time of the

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County Court at Law No. 1 Travis County, Texas 512 854-9252

14

1 sale, where it was going to be sold. And when the 2 when judge -- may you tell me his name next door?

3 THE COURT: Shepperd.

4 MR. BIERWIRTH: Judge Shepperd had told me 09,20,38 5 that I could sell the property if she didn't put money 6 in the court registry and that I had a right to sell it.

7 I just assumed that I had a right to just go ahead and 8 sell it.

9 THE COURT: You don't have to follow the

11 MR. BIERWIRTH: Well, I thought I did 12 follow the rules since I've already sent her notice that 13 I was selling it.

14 THE COURT: You sent her notice of a sale, 09,21,0315 but then you went to court and the judge set conditions.

16 So there's no sale going on. And you didn't send her 17 notice of another day of sale?

18 MR. BIERWIRTH: No, sir.

19 THE COURT: And you didn't have a sale.

09,21,1120 You just farmed it out to your buddies?

21 MR. BIERWIRTH: I didn't farm it out to my 22 buddies.

23 THE COURT: Right.

24 MR. BIERWIRTH: People I know who like it 09,21,2425 or were interested in it.

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

15

1 THE COURT: Okay. Yes, ma'am, what's your 2 story?

3 STEPHANIE DELEON, 4 having been first duly sworn, testified as follows:

09,21029 5 DIRECT EXAMINATION 6 MS. DELEON: This property, that he claims 7 to own, was foreclosed in a judicial foreclosure in June 8 of 2011, and warranty deed was transferred to the bank 9 in June of 2011 prior to him leasing the property to me.

09:21:4810 And I contend that he did not have the authority to 11 lease the property to me in the first place.

12 I did give him a cashier's check for the 13 deposit. He lost said check. I then set up 14 arrangements, because I was out of town, to transfer the 09:22:0615 funds electronically as I had with several other 16 landlords in the past. And I worked with his wife, 17 A1etha Bierwirth, to set that up. She provided me the 18 numbers, and she was required to authorize the 19 transaction for it to take place.

09:22: 2220 The reason why it was returned from their 21 credit union is because the deposit was written under 22 the name of the d/b/a and their bank account was in 23 their personal name. And that's the reason why it was 24 returned.

09:22:3825 MR. BIERWIRTH: Objection, Your Honor.

Cathy Mata, CSR

County Court at Law No. 1 Travis Couhty, Texas 512-854-9252

16

1 There's a -- there is no personal name for KB Realtron 2 Management. It's had an account since 2004.

3 THE COURT: How is that an objection?

4 MR. BIERWIRTH: Well, she just said it was 09,22,54 5 a personal account.

6 THE COURT: She just said it. You don't 7 think it's true. How do you reckon trials would go if 8 every time somebody on the other side said something 9 that you didn't think was true and you said objection 09,23,0310 and explained your side?

11 MR. BIERWIRTH: I'm just trying to 12 correct.

13 THE COURT: That's not an objection.

14 MR. BIERWIRTH: Okay.

THE COURT: That's, I want to tell me my 16 side again.

17 MR. BIERWIRTH: I apologize.

18 THE COURT: Go ahead.

19 MS. DELEON: I attempted on three 09,23,1820 different occasions to pay this deposit while I was out 21 of town. I had moved in the property on the 17th and 22 was out of town for Christmas. And when I returned on 23 January 3rd, as I was driving back from out of town, 24 they had asked me to go ahead and just give them cash.

THE COURT: Who "they"?

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

17

1 MS. DELEON: Aletha Bierwirth had asked 2 for me to go ahead and give them cash and I thought that 3 was I never had so much trouble paying anyone before 4 and I thought that was suspect; so I decided to look up 09,23,50 5 the Travis County Tax records and then learned that they 6 did not, in fact, own this property at all. I then 7 confronted him about that fact and indicated that I 8 wanted some sort of documentation that provided 9 authorization for him to lease the property to me.

09,24,0710 Instead of providing any documentation, he entered the 11 house while I was at work and stole $8,000 of property.

12 THE COURT: This is in what time?

13 MS. DELEON: January of 2012. I believe 14 January 19th, if my memory serves.

09,24,2615 THE COURT: January 2012.

16 MS. DELEON: So approximately one month 17 after having moved in.

18 THE COURT: Took a bunch of property. And 19 at that time if you owed him anything, you owed him 09,24,3820 $1200 for your deposit . And is that also the rent?

21 MS. DELEON: 1200 for rent and I believe 22 there was a $35 pet rent as well.

23 THE COURT: So at that time --

24 MR. BIERWIRTH: And a partial.

09,24,5525 THE COURT: Please stop it.

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

18

1 At that time you would have owed him 2 $2435?

3 MS. DELEON: Yes, sir.

4 THE COURT: At the most. Rent for part of 09,25,03 5 -- a month's rent is what you owe?

6 MS. DELEON: Correct.

7 THE COURT: And pet things. Okay. Go 8 ahead.

9 MS. DELEON: I did file a police report on 09,25,1310 the matter and he then filed a suit to evict me in JP 11 court, which Judge Bass ruled and dismissed this motion 12 due to no legal standing in February of 2012. I moved 13 out as soon as I possibly could, April 1st, after 14 purchasing my own home. He then immediately entered the 09,25,3515 house and mowed the lawn and released the property.

16 There was -- I had an attorney at the 17 time. There were several motions filed in court. And 18 at one point we had been in front of the judge who asked 19 the attorneys to make an agreement for me to put in a 09,25,5620 bond the amount of rents on a monthly basis until such 21 time that it could be ruled on to validity of the lease 22 and he would not agree to that.

23 THE COURT: Who would not agree to that?

24 MS. DELEON: Kevin Bierwirth and his 09,26,0925 counsel never responded.

Cathy Mata, CSR

County Court at Law No.1 Travis County, Texas 512-854-9252

19

1 THE COURT: You didn't put it in the 2 registry of the court, did you?

3 MS. DELEON: Well, that was after he gave 4 notice to sell the property that he took out of the We had made a bond to replevin to put in $8,000 6 to -- of a bond, and I just didn't have the money to do 7 it. No new notice was given on the sale of the 8 property. And the initial notice indicated that the 9 property would be sold on eBay. There was no detail as 09:26:4610 to when or what the URL was so that I could bid on it 11 myself. There was no way for me to attend any sort of 12 auction for me to prepurchase my property back. And no 13 new notice was given when he decided to then sell it by 14 whatever means he did.

09:27:0915 I currently don't have possession of this 16 house at this time. He's asking for possession. I 17 don't I don't have it. I can't give it to him. And 18 I don't feel that lowe him any rent. I was very, very 19 well prepared to pay rents to the court to whoever was 09:27:2920 authorized to receive those rents. I personally did not 21 feel that it was Kevin Bierwirth or his management 22 company.

23 Also, he has been filing appeals with the 24 Third Court of Appeals in order to appeal this 09:27:4525 foreclosure, which has been denied, and I have a copy of

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

20

1 that motion in writ here . I'd like t o enter this into 2 evidence , please.

3 MR . BIERWIRTH : For Third Court of 4 Appe als --

09:28 : 10 5 THE COURT : I'm sorry, what did you just 6 say?

7 MR . BIERWIRTH : I said we ' re not here for 8 the Third Court of Appeals ' decision .

9 THE COURT: I understood that before we

11 MR . BIERWIRTH : Yes , sir.

12 THE COURT: What's your point?

13 Anyhow , he tried to appeal the judicial 14 foreclosure, is that what he tried to appeal?

MS . DELEON: Yes . In fact , he did not 16 file the appeal in time. And so his appeal was actually 17 to appeal the right to appeal because his in itial appeal 18 was n ot filed in time . And so that has gone on for over 19 a year now. But it ' s finally been decl i ned. And I h av e 09:28:5020 a copy here as well .

21 THE COURT: Okay. That ' s of little 22 interest I th i nk . Anyhow , what else do you want to tell 23 me?

24 MS. DELEON: I also have a li s t of the 09 : 29:1725 items that he removed from the house that belonged to

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Coun ty Court at Law No. 1 Trav is County , Texas 512-8 54-92 52

21

1 me.

2 THE COURT: I don't think you filed a 3 counter claim, did you? If you want to get that, you're 4 going to have to file a lawsuit for it.

MS. DELEON: Okay. Yes, sir.

6 THE COURT: Okay. Anything else you want 7 to tell me?

8 MS. DELEON: I just feel that he did not 9 own the house then, nor does he own it now. He has 09,30,0110 never been able to provide any sort of documentation 11 that he ever had authority to lease the house to anyone, 12 and I don't feel that I owe him anything.

13 THE COURT: Any questions for Ms. DeLeon, 14 Mr. Bierwirth?

MR. BIERWIRTH: I do.

16 CROSS-EXAMINATION 17 BY MR. BIERWIRTH:

18 Q. Ms. DeLeon, isn't it true that you leased the 19 property? And I know that it's been said, but I'd like 09,30,3520 for you to tell the Court that it's true that you signed 21 the lease with KB Realtron Management to rent the 22 property at 3305 Spaniel.

23 A. I signed a lease in your office and you had 24 completed it. I did sign a lease under the -- I thought 09,30,5625 that you had the authority to lease the property.

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

22

1 Q. And that is a legal binding contract. You're 2 aware of that, correct?

3 A. I'm not aware, no.

4 Q. Didn't you state in Ms. Triana's court that it 09,31,17 5 was, in fact, a legal -- you understood it was a legal 6 binding contract?

7 A. I understand that leases are legal binding 8 contracts.

9 MR. BIERWIRTH: Nonresponsive, Your Honor.

THE COURT: Would you let her answer it 11 MR. BIERWIRTH: She's not answering it.

12 THE COURT: before you start talking?

13 She said she understands that leases are legal binding 14 contracts.

MR. BIERWIRTH: Okay.

16 THE COURT: You're trying to fool me or 17 what?

18 MR. BIERWIRTH: No, sir, I'm just trying 19 to--

THE COURT: I know what her answer is.

21 Her answer is, she thought it was a legal contract when 22 she signed it.

23 THE WITNESS: I did think it was a legal 24 contract, and I did try to uphold that contract until I 09,31,5025 felt that it was not a legal contract.

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

23

1 Q. (By Mr. Bierwirth) Okay. Isn't it true that 2 you did not pay any rents for the property that you 3 leased at 3305 Spaniel?

4 A. I did pay a security deposit of $1200, which 09,32,07 5 you lost. I attempted on three additional separate 6 times to pay $1200 plus the $35 pet rent, which was 7 returned on three separate times.

8 Q. Have you paid any funds, any money?

9 A. At this time no funds have been actually paid.

11 Q. How long did you stay at the property?

12 A. From December 17th, 2011, through March -- I'm 13 sorry, April 1st, 2012.

14 Q. Okay. Isn't it true that you filed a motion 09,32,4215 for summary judgment and the judge had ruled that I did 16 have a right to the property and I did have a right to 17 collect the monies for the property, and whether it was 18 foreclosed or not, as long as I had possession of the 19 property?

A. The judge -- there were some rulings, yes. I'm 21 not familiar. I have to reread all the documents.

22 THE COURT: What judge would that be?

23 MR. BIERWIRTH: Fifth floor, sir, Your 24 Honor. I probably have that order here.

THE COURT: All right. Anyway, she's

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

1 answered this question. What's your next question?

2 MR. BIERWIRTH: Okay. Your Honor, I 3 believe I may - at this time, I have no further 4 questions.

09:33:48 5 THE COURT: All right. Anything else 6 you'd like to add, Ms. DeLeon?

7 MS. DELEON: I feel the facts of the case 8 speak for themselves. No further questions.

9 THE COURT: All right. Thank you.

09:34:0510 MS. DELEON: Thank you, Your Honor. May I 11 be dismissed?

12 THE COURT: Uh-huh. Any other evidence 13 for your side, Ms. DeLeon?

14 MS. DELEON: No, Your Honor.

09:34:1415 THE COURT: Any other evidence for your 16 side, Mr. Bierwirth?

17 MR. BIERWIRTH: Well, I'd like to put in 18 that order here -- actually, I believe here it is. Put 19 in the order denying the summary judgment.

09:34:4820 THE COURT: Orders denying motion for 21 summary judgment don't say anything other than the 22 motion is denied.

23 MR. BIERWIRTH: Okay. Well, I have the 24 summary judgment as well if you would like to read it if 09:34:5825 it interests you.

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

25

1 THE COURT: Denied. It doesn't mean the 2 judge agreed with you. Just some fault in the motion.

3 MR. BIERWIRTH: Yes, sir.

4 THE COURT: All right. Anything else?

09;35:16 5 MS. DELEON: No, Your Honor.

6 THE COURT: Okay. I am reminded of an old 7 Woody Guthrie song called "Pretty Boy Floyd", by golly.

8 Pretty Boy Floyd was kind of a hero in Oklahoma because 9 he robbed banks, and banks were kind of mean to people 09,35,5610 at that time. Part of the song says, "As through this 11 world you travel, you see some funny men. Some will rob 12 you with a six-gun and some with a fountain pen." Ain't 13 that the truth.

14 And you're one of them, Mr. Bierwirth.

09,36,1015 How dare you rent something to somebody when it's been 16 foreclosed on and you've already given a deed to the 17 bank? How dare you?

18 MR. BIERWIRTH: I didn't. They have 19 not -- I still have possession of the property, and they

21 THE COURT: You don't have possession of 22 the property. Judge Cooper wrote an order that says 23 this order will act as writ of possession for the 24 property for the bank and that bank has now transferred 09,36,3225 it to somebody else, to the FDIC or Fannie Mayor

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

26

1 somebody.

2 MR. BIERWIRTH: No, sir.

3 THE COURT: And you pretend that you have 4 the right to possession of the property?

MR. BIERWIRTH: I do have a right to 6 possession of the property.

7 THE COURT: Because it's been foreclosed 8 on and transferred to two other banks and your right to 9 possession is?

MR. BIERWIRTH: It hasn't been 11 transferred, Your Honor. And I have --

12 THE COURT: Well, according to the deed 13 records it has.

14 MR. BIERWIRTH: Your Honor, I have -- I 09:37:0015 have a book like this. And when Ms. DeLeon rented the 16 property, the bank was in litigation, as I told her 17 before she moved in. And I also told her that they 18 haven't had gotten possession, nor did they file for 19 possession or anything.

THE COURT: I think you're a liar and a 21 thief. Just to get that off my chest. I think you're a 22 liar and a thief. And she gets judgment in this case, 23 and I assess all cost against you. You can be excused.

24 MS. DELEON: Thank you, Your Honor.

THE COURT: I'll write you up an order if

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

.

1 you want to stay .

2 MS . DELEON: I would very much appreciate 3 that.

4 THE COURT~ There ' s one for each of 09,42,2 0 5 toda y' s contesta nts. There 's a judgment for you that 6 says plaintiff take nothing and defendant have her 7 costs.

8 (These proceedings were concluded.)

9

,

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Cathy Mata , CSR

County Court at Law No. 1 Travis County, Texas 512- 854-9252

28

1 STATE OF TEXAS 2 COUNTY OF TRAVIS 3 I, Cathy Mata, Official Court Reporter in and for 4 the County Court at Law No. 1 of Travis County, State of 5 Texas, do hereby certify that the foregoing contains a 6 true and correct transcription of all portions of 7 evidence and other proceedings requested in writing by 8 counsel for the parties to be included in this volume of 9 the Reporter's Record, in the above-styled and numbered 10 cause, all of which occurred in open court or in 11 chambers and were reported by me. 12 I further certify that this Reporter's Record of 13 the proceedings truly and correctly reflects the 14 exhibits, if any, admitted, tendered in an offer of 15 proof or offered into evidence. 16 WITNESS MY OFFICIAL HAND this, the 23rd of 17 September, 2013. 18

19 lsi Cathy Mata Cathy Mata, Texas CSR No. 6126 20 Expiration Date: 12/31/13 Official Court Reporter, County Court at Law No. 1 21 Travis County, Texas P.O. Box 1748, Austin, Texas 78767 22 Telephone (512) 854-9252 23

24 25

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

EXHIBIT 3

1

1 REPORTER'S RECORD 2 VOLUME 3 OF 3 VOLUMES 3 TRIAL COURT CAUSE NO. C-I-CV-12-002167 4 COURT OF APPEALS NO. 13-13-00411-CV 5 KB REALTRON MANAGEMENT IN THE COUNTY COURT

6 7 VS. AT LAW NO. 1 8 9 STEPHANIE DELEON TRAVIS COUNTY, TEXAS

10 11 ********************************************************

12 EXHIBIT INDEX 13 ********************************************************

14 15 On the 10th of June, 2013, the following 16 proceedings came on to be heard in the above-entitled 17 and numbered cause before the Honorable J. David 18 Phillips, Judge presiding, held in Austin, Travis 19 County, Texas; 20 Proceedings reported by machine shorthand.

21 22

23

24 25

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

2

1 A P PEA RAN C E S 2

3 PLAINTIFF APPEARING PRO SEE:

4 Mr. Kevin Bierwirth 13276 Research Boulevard, Suite 204 5 Austin, Texas 78750

6

7 DEFENDANT APPEARIING PRO SE:

8 Ms. Stephanie DeLeon 9 4108 Kilgore Lane Austin, Texas 78727 10

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

3

1 INDEX 2 VOLUME 3 3 EXHIBIT INDEX 4

5 EXHIBITS OFFERED BY THE PLAINTIFF 6 EXHIBIT DESCRIPTION OFFERED ADMITTED VOL.

7 1 Lease 9 9 2 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

1

4 5 6 7 8 9 10 11 12 PLAINTIFF'S EXHIBIT NO.1

~\.

• TEXAS AsSOCIATION Of I~LTOIl.5"

RESIDENTIAL LEASE

-\)$£cttfKTOR\.IlW~W«OAA£NO-T_ME'-"4(~Of1){£lxMs~f4IOS<*iV4:f<i<t$a-¥Sl:>QtA~1t!t

1, PARTIES: rhe paniel! lolhis tease ar.:

O'!U"A... ot4ll:o*_'d_Ji~j.,l~lI!t-noJ!i

_____________~----------------__--_____--___----__--__;and ..":y~",,,,m(.!:.t..i'''''d,,,d:L__-:-::-:-::;

tlli>c>vl'ler of ttl" Property, Landloro.: -Lt.;.bl.UI.1:<':..h';;;"'L..iiwCwo<;l\.I>,;..J_-Lff1l.lkl:i..,1.A",

Tenan\ts): Srt"'nhC1!lie /

jI', PRQI'eRTY: !.aMlo,,! teasea to T9nalll !he follow Ing real properly:

Address: 33i:1S 6£r!fvie! ~4) 1'72<', ,:;.Itz.rq ""F;....________________________________ ~!)alt~ dElllcribed 8$:_ _ _ _ in 77l;uhS

Hem.: County. re~as. together with 100 followiO:g Mll·real·property ___________________________________________________ ___

3. TERM:

• .);\f>rimaty Term:TI)e [ll"1!11"'Y1"(Tljo! \WS!<t;lse begins anll eMS a.lollolWS:

,1</ COmmeflC<!ffientOate: fl,"¢mber t4 gall Explrafion Oate; [')r,q:mkc .. '$1; :Jl){2

4. AUTOIAATIC ReNEWAl. AND NonCE OFTl!RMtNAT10N:

A, This lease aulO/llat;calfy (90_ on II month,tp.,-oonlft blIs!s unlElllS Landlord or Tenant ptO'JidllS th.

othe, party ~ no~ <>\ I~mlnalion not less then: (Chock "pry om) bo~,)

q (t) 31) Qay&l>efo$ the l!:xpiratlOn Date.

7!f{2} ,~ days before tile Expiration Data,

8. Ir thiS lease. automatically renew. on a monlft-to mon!h basis. II will tllnlitllJe to ,eneW on a mooUl·lamonlh basis unlll e~her party prO'ides wtl~en nOli<:e of lermirn;!lon to the: Clner paft)t and the notice of lerntinatioo Will bael1eclwe: (Check {lilly one box.!

'liiI': (t) on tOO last day of Ihe monlft folloWiIlS tha monlll in Which tho nOtice Is gwen. Landford is no!

r obIigIIled to prorate (I;1nl even if Tenanl surrandafS tlte Pro~rty befOre lite termination date..

D (2) 00 Ifte Qat. <Ie$iQ'late<l in tho noUce bul not $OOl1!!)t than 30 days after lhe notice 1$. given arnl. if oocessary. renl wi" ba prorated on a Ila~y basis.

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TEXAS AsSOCIATION OF REALTORS'

RESIDENTIAL LEASE

USCqJ tJtS~~PP;SOHSWHOAA£fr()T.~OI '41&tAt~lQqP ~TQIl$Iit/lSll«)f ~ a.Kti

~OfQAl.toII:MI,

1, PARTIES: The parties to \his lease are:

~""Io:I..I.1iz.;rwo",,,Il>,L.)_ ....hI4~IWI.A~IodJ;...t~JS'7...e::.tm:.u;eolJ"....Jt:

ilia owner of Ihe .PJ(lperty, Landlord,: _J.6.JJb(;JLI ..._~::::;-

; and

----------~-------------------------------

Tenanl(s): S:t'j"balUe Q.LpMQ •

12. PROPERTY: Landlord leases 10 Tenant the following real property:

Address: .3~ ,?,Nie/ Ieg8l1ydeschbedes::_ _ _'

,l!JI:6tio.l 17k. .lFZrft _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ ~ ~

The real property and Ihe non-reaJ.pJOPe!1y are coIlectlvety called lIIe ·Property·, 3. TERM:

• :t;$ Primary Tarm: .The Plimary term olllUs lease begins and ends as follOWs:

•

.

'11/ COmmencement Dille: o..umbe r ~ ;!2" If ExpIration Date: J).«m he r .31; :Jt)(2 St Delay of Occupancy: Ten@nl mUS! OC!:!!P), 111ft proOOIj)/ wjtI!ln 5 !layS aller lhe COmmencement Pate, If Tenant bunable to o<;cupy the Ptoperty by lIIe 5Ih day after Ihe COmmencement Oa!e because·of construclloll on the Property or a prior lenanrs hOlding over ofth8 Property. Ten;ml may \efl'IIInatlllhls lease by {living. Written nolle\! to Landlord before 11111 Property becomes avaq,ble to bII occupied by Tenant; and Landlord .wiR refund to Tenanlllle security deposit and any rent paid, Landlord will atialfl rent on a daity bIIsls for a delayc:aused by conslM:\lon Q~ a prior lenant'sholding over. ThIs paragraph dOes nollippty 10 Ijny delay In oceupancy caused by cleaning, repairs. or maJte.tel!dYljems.

4. AUTOMATIC RENEWAL AND NOTiCe OF TERMINATION:

A. TI1I$ lea.e I!\.Ikl!IIatlcaity ~nllWl on a month-to-monlh basl$ unl6$S Landlord Of Te,*,l pi'O\Iide$ lIIe OI/Ier party lfdi1\.tn0llllce oj tarmlnllllon not Iee& than: (Check only one boX.>

.~

-

C (1)3Ddays beforelhe Explrallon Pate.

1i (2) dayS before Ihe expiration Data.

8, 111111$ 1.,_ 8III()OOlItlcaIIy renews on II monlh-to month basis, It will continue to renew 00 a month-tomonth basl$ until either party provldll$ Y!!iI1§!l notice or lermlnallon to Ihe oIhar party and Ihe notice of .termination will be IIlfective: (Check only one box.)

'113": (1) on Ihe laSt day of Ihe month following Ihe monlll IIi which ilia 0IlIlce isglven. l.andIord Is not r obI~ to prQltlle rent even if Tenant s9mtncl$rS t~ Property IIOfore Ihe IEtrmrnatlon dille, D (2) on 1IIe date de$lllna!ed In the notice but not sooner Ihen30 days after 111& nob Is given and, If necessary, rent WiIl.be prorated on a dally basis•

• crAA~111t).5.05

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• C. Oral not" of !etmlnaljon Is 001 suf!je!eo! under any ciroumsta!)Cl!l. TIme is of the essellCe f~ providing noIi<:e of termination (strict compliance wilh dates by whieh notice musl be ~ IS required); If a box is not checked under Paragraph 4A, Paragraph 4A{I) wID apply• •Jabox 1$ not checked·under Paragraph 48, Paragraph 48(1) wilt apply.

5. RENT:

A. MgnlhtvRen!: Tenant will pay Landlorcj monthly rent.In the amount of S 1ii1f»'

. Clu!i(l9!!lb leese. The firsl run month's renl is duo end payable nollaler .

pr) for IiadI full month

.

Thereafter;. Tenant wil1 Qily lb. monthly rant 59 Ibat landlord receives the monthlv rent on or bafort the fitSt day' of each month during .his luse. Weekends, hoU<f&vs, and mall deJays do OPt 'XWSe Tenant's 9bllg!ltion lotimelv pair ren!.

8. PrgratedBen!:.On or before Ow s?mh.,( IiTenant will pay Landford S as pro<a!ed f1!nt from the Commencement Date through tho last day of iIle m.onlh In Whfch thls.ease begins.

C. P!aeg 01 Paymen!:' Unless Ihls lease p(OVides olhelWlse•.Tenant wm remlI alt amounts due to Lendlord underlhis tease to .the·followIng person or entity at iti_place slated and make aU paymenliJ payable to the.nilmedpel'$Ollor entity. Lendlord may later delllgnate, Inwdtlng. ailo!I)et person orprace towhleh Tenanlm~ remil amoun" due under this lease.

:~:~tJt;lV~eAtt

Nol!ee:' PI_ the Property addreu and Tenent's nlim. on'aU paymenl8.

• D. Method of PiMnent:

(1) Tenant must pay all rent tlmety and withoul def1l3rid. deduction, or errs", axceplll$ permitted by

gJ

law Or Ihls leese. .

TII!I8 is'of the essence for th:;:aent ofrenl (strict ~ with r,entel due dates.lsrequ~ed!.

win

( ) OnteN the perties agree oIh . , Tenant may not pay rent 10 ~I! ·and pay ill rent by check, casllle!'s che(;k, mOney order, orolher means acceptabl~ to Lendlord.

(4) landlord 0 lVqUires 0 dolls notl'!KlUlre TeiIanI(s) to pay monthly ~ents by o!l8check or draft.

(5) If Tenant fais totim8ty pay any amo1ll1ts due under this lease or If .any check Qf T_nl Is nol hondnlll by !he Institution on which it was drawn, LandIQrd may require Tenant to pay$uch amount and any lubsequent amounts under this lease ,In cerllfled flsnds. 1hJ$ paragraph doel!noI 'llmft Lilndlordfrom $IlekIng other remedies under this laue for Tenanfs faitu.., .to make tim Illy payments Wfth good funds.

E. Ben!

re~t

'''7''''':' There will be no renl \nereeses IhrIlugh the primary term, Lanqlord may Ino:tease the thalwiU lie paid' during any rl1O/Ith·lO-month renewal period by ptOVidlng .81 1east ·3O ,day$ written no.t!Ce to.TOInlInL

S. lATE CHARGES:

A. If· LendlOfd dolls not ac1ya"y reeeiY,t !. rent payment In the full amount at \he designated pI_ of payment by .:;tI!!f'01p.m. on!he...&2.. day of !he month In which Ills dUll. Tenent will pay Landlord for . .ell late payment:

m8!\montn·s,.n;

Inlt!aIIatilcllargeeqUBI10 (check one box only): C (a)st.jU. QD :or and

C (b) % of·one.

• (2) 8dditIonallate chatges 01 S it) per day thereafter until rent and iete.charge.-.;' pald In filii.

Addiilonallate ~ may not exceed morelh,sn 3Oday81n arioj 0118 , • m,ontll.

(TAR400I;ll).s.os T~_, _ _ &\.oIIdIOOlOtl.aodlO!d'.Rep~~JiB_ P'9G2 01 14

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~dall.ea$O"""'eming; 33P.s: ~&;el

• 8. For the (lIJrpo$esof paying rent and any lata charges, the mailboX Is not Che agent for ~pt tor landlord (the postmark date 1$ nolthe date landlord ~ves the payment). The late charge Is a cosl associated with the collection 01 rent and landlord's acceptance of II Iale charge does not waive t.ar\dlord's_ right to exel'\llse remedies under Paragraph 27. .

7. RETURNED CHECKS: Tenant wID pay l.andlord $ ~ (not to exceed $26-00) for each check Tenant tenders to landlord which i$ returned or not by the Institution on WIlfch it Is drawn for any re.$Son, plus any IJItec!!ames unlll!,.at1$llprd !liCItlY&:; payment. Tenant most make any returned dleck good by paying sUChamounl(s) plus any assodaled charges In certified funds.

8.. APPLICATION OF FUNDS: R!!lli!!dless of any ngt!'flm on II checJs. !.and!ord may @pply fund! received from TeD!n! W to any nrin=rent ob1laaljons of Tenant indudiQQ but DOt limited tg. lata ,bargas, returned Checlt eharoes· r9p3irS. brokerage fttes. oeriosflC utilities. pat charges. and then to rent.

9. PETS;

A. Unless Ihe parties agree olll&rwise in wrillng, TeMO! may ngt permft. even temporan'/y. any pet on !he prppertv (1l!!:Iuding but not limited to any mammal, nlPllle, blrd,fish, rodent, or insacI).

8. If Tenant ViOlates Ihis Paragraph 9 or any agreement to keep II pet on the Property, lIIndlord may lake all or any-of the foltowingllCtion:

(1) c!8clare Tenant 10 belli default of this lease and exercise Landlord's remedies under Paragraph 21;

(2) chargaTiInan~asaddilionai rent. all initial amount of ~ and S per day thereafter per pat

for each lISy Tenan! vlolalesthe pat reSlril;lions;

(3) remove or cause to be removed allY unauthOrtted pel and d&liver It to appropriale local authorities

• by providlng at least 24·l!our wtiHen notice 10 Tenant of l.endlord's Inl&nlioi\ to remove the_ ullli\lttKlrlzed pel;-and .

(4) charge to Tenant the LandIQrd's cost_to:

(8) remove any unauthorized pet;

(b) extermw atgfu8 Qropert~.ancl.cther~;-- ___ ._.

(ei clean and deodofizelhe Property,'s carpelS and drapes; and (d) repalr any damage 10 the Property caused by the unauthorized pel.

C. When ~1!Ing any ection under Paragraph _98 Landlord WIll nol be liable for any hano, Injury. death, Of sickness 10 any pel.

10. SECURITY DEPOSIT:

A. S!!Wrlly.Deposit: on orbe(ore execution of thisl_e, Tenant w~1 pay a security deposit to l.endlord in II)e _oIofS·~

Property Code.

MO, DI? • ·SecutitYdeposn" has Ihe meaning assigned to thai term in §92.102, .

B, I!Jli!:ll1I: No Interest or Income wUl be paid to Tenant on the security deposlllandlord may place 1he Sf!CUtitY deposft In an interest-bearing or Income-ptOducl1l9 acCount and any Interest or incomeeamed WIll be paid 10 landloro Of Landlord's representative.

C. at B!!fw!I.: Tenant must give Lat1$lloro leu! thirty (30) days WljHen !!9!Ice 91 surrender be!pte Landfgw Is obligated to refund or aeqrunt for the Security deposit

Notices about Security OepOlltlS:

(1) 592.108, PI'VPtt1Y Code provides tll&t a tenant may not withhold payment of any portion of llit

• las.t month'. rent on grounds that the security deposit Is security for unpaid renL (T~I) I~ T.~~ __ &LancIIooI."La!'<llOllf&~'" JiJ,- Page 301 14

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• (2) Bali faith violations of §92.108 may subject a tenant to liability up to 31lm1!8 the rent wrongfuUy withheld and th.landlord's reasonable attomey's fees.

(3) The Property Code does not obligate e landlord to return or account for the security deposit unW the tenant aurrenliel'$ the Property and glvell the landlord a written statement of the tenant's forwardIng address, after which the landlord has 30 days In which to _unL (4) ~Surrend!l"'ls doRned'ln Paragraph 16 of this lease.

(5) On.. m;lY view the TelIa" Property Code etthe Texas legislature's webslte whiCh, as of the date ahown In th.lower left.tland comer of this form. Is www.caJ)!\!)I!!la!e.\l!.U!ls!alu!eslpt.1o!;b!!ll.

D. Deductions:

(1) Landlord may deducl reasonable charges Irom the security deposit lor:

(8) damages 10 the Property. excluding normal wear and tear;

(bi costs for which Tenan! is responsible to Clean. deodorize. exterminate. and maInIaIn !he Property:

(e) unpaid or accelttated rtnt (d) unpetd late chargllS;

<e) unpaid utilities;

(I) unpaid pet Charges; , (9)replac:lng unreturned keys. 98fIl98 door optners. security devices. or oIhet compooents;

(h) the removal of uneuthorized loCI<$ or flX1llres Installed by Tenant;

(I) Landlord's co.SI to access the Property If mede lnaccesslllle by Tenant; • 0) mlsslng or burned-oulllghl bulb$ and fluorescenllubes (al the eeme lQ¢atlOri and 01 the same ~8ndqualo/ thai era In llill Properly on the Comm~l'nenl Date);

• (k) pactdng•.remcwlng. and storing abandoned property:

(1) . removing abendoned or Ulegallyparked whldes;

(mlfX)Sls 01 relelling (as defined In Paragraph 27), If Tenant is in default;

--------4(n).elloMe)4l rees. llOSIs-GI.courtn;ostsolSGlViCer and-other·reesonab1e -coSts Incim'ed~ • proceeding agalnsl Tenant;

(0) mailing costs euoclaled wi III senillng nQtices to T enanHor any violations of this lease; and (pI ""Yolher unpatdChMtles or feeS or other Hems for which Tenan! b responslble und8t Ihls :Iease,

(2) I' deducllons exeeed I~& security deposit Tenanl will IAIY to Landlorc! the excess wllhln10 days ,after LandlotO makes written demand.

11. UTIUTIES:

A. ' Tenant wiQ peyaH cOnnection fees. S8tVk:e lees. ulaoa fees, and all ollter costs and f_for all utilltle$ 10 Ille Property (for example. electricItY.glls. water. wastewaler, lI8f1l1lg(!.telliphone. 81"m II systet1l$,csble. and Internet connections) excepl lIle following whiCh LandlQrd will pay; "J11 '/J IEVE 'F

r ,

Unless otherwise agreed. amounts under Illis paragraph are payable directly to the serVICe provider..

9 • .Unless proVided by landlord. Tenanl m~ at a minimum. keep Ille following UIIIIUes on, If available, at all times this lease Is in effect: gas;elecIIfcIIy: water; wastewa1er; and garbege services.

NOtIce: B~, signing this lease. T4mant sholjk! determine If all n_Mlllry ulllilies are avaHahle

• to Ihe Propelty and are adequate for Tenant's use.

(T~2OO1)1()'~ T~_-,_&IJJtIcIIoo1j"'laMlOoI'$~fNe:t!t_ Pege4c114

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• 12. use AND OCCUPANCY:

a.phone Numbe!ll: Tenant must promptiy inform L$ndlOrd of any changes in Tenant's phone numbers (/lome. work. and mobHe) not laler IIlan 5 cays after Bchange.

C. HOA Rules: Tenanl must comply with any owners' association rules Ot restrictive covenants alfedjng the Properly. Tenant will relmbune Landlord for any fines or oIhar charges assessed against Landlord lot vlOlQrIOll$ by Tenant of any own81'S' assoclaHon rule or reslrictlYe covenant.

O. Prohjbitions: Unless otherwise authorized by tHis \1!a$e, Tenant may not insl8ll or pennit any of the foUoYIIng on the Property. even lemporarlly:aspa, hOt tub,above'g.round pool, trampoline, or any l\em wJl!eh cau$eS a suspension or c:anceIlaUon of InSUrance coverage or an Increasa In InslJtlln(;8 pf8tnlums. Tenan! may not permit any pllrt ot t~ Ptopelly to b8 used for: (1) any ac:tivlty whleJ\ is a nuisance, offensive. noisy, or tfangercus) (2) the repair of any vehicle; (3) any bu.~ ofany tvJle, including. but not limited to chHd care; (4) any acIMty which vlo\$tes any zoning ordinance, owners'

assOCiation rule, or restrictive covenant; (5) any Illegal or unl$wfid activity; or (6) eclMtylllat Obstruc;\$, Interferes with, orinflioges on the rights of ether persons near the Property.

E.• ~: Tenant may not permit any gue$lIO Slay. on the PI9I1!IJ\y longer the amount of time pennitted by anY1lWllllrs' u$Ot;i<llion rule or reslriclive cc"el'l8nt or ~ tfaya without landlord'S wrltIen

• permission, WhM;:heveris less,

F. pommOO Areas: LaIldI9rdis nol obligated to pay any non-mandalo/Y or user fees lot Tenant's use of __~.$.caur!!):.

any common arllaS orfacililles (for example, l>O?'_o_,1I!n

13. PARKlNGRULES:

_._. ._...._ •. _ _ _ _ __

Tenanl may not perm" more IIlan l/...-,... vehicles,. ~Ing but not limited' to 8U\Omoblles. trucks, recraaHonai vehlclell, trailers, moloicycl8S. aP-terram vehicles. jet skis, and boals, on the ProP8l\y unless autho~ by ~8nd1ord in writing. Tenant may not park or permit any perscn 10 park anyvehfcles.1i1 the yard. Tenant may pelIOn vehlcfes to be parked only in drives, 9&rag\!S, d$$f!lnaled common parking areas, or In .the $tree! if not prohibited by law or ,n owners' association. Tenant may not Stort or permit any person to store any veI)ldes on oredjaOllnl to the Property or on the street in (jcnt of the ProP8l\y,. In accordance with applicable $lal'l lind klCaI1aws. Landlord may have. tOWed, at Tenant's expanse: (a> $!IY Inoperalive vehicle on or adjacent to the Pi<lperty; (b) any vehlckl parked In vlOiafioll of thI$ paragraph or any additional parking ruI._ matfe.part of thI$ lease; or (e)8r\y vehlckl patlced In violation of any law, local ordinance, or owners' association ruta.

14. ACCESS BY LANDLORD:

A. §!!m; Landlord may prominenlly display a "Fer Sale" or '"For Lease" or $imilarty wortkId SIgn en \he Property during the term of this lease or any renawalperlod.

a.~: Balote a(l(i8$$lng the Propllfly, LandlorCi or anyone aulhOrlzed by Landlord will'atl8rnpl 10 fitst contaclT8MIIl, .bU1 may enter the Properly at reasonallie times wfthout nolk:eto make r.perr. or to.

show the PIOpeIly to prospective tenants or buyers, Inspectots, rite mershals, lenders, appraisers, or InSUranoaagents. AdIlitionally, Landlord or anyone authorized by Landlord maypeac:efully anIer Ihe

• Property at reasonable times wllhoutrm a\temptlng tocontacl Tananl an!! witllout nob 10:. (1) IIIrIe)r or review the Property's COndiUon; (~) make emergency repairs; (3) exerolse aconltaclll81 0, SlalUtory lien: (4) leaV'l wrllten~: or (5) seize nonexempt property HTenant is In de~ 11_1)11»-05 r - l ( #_______ II Lar1dJoIIIotL811OIOII':. R8preoenla_ _ PiOe$oi 14

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• C. Trio C!Ja1ll§: If landlOrd or Landlon:l's agents have made prior arrangements with Te/l!lnt to a<:cess the Property and are laler denle<l or are not able to aoce55 lite Properly beca\lse ofJ9~'s faKure 10 make the Property accessible. Landlord may charge Tenant II trip charge of $ . ~~

O. ~ A koybOl( Is a locked contaIner placed on the Property holding a key to the Property.

The keybox'is opened by a special combination, key, or programmed access device $0 that p81SOnswith tha access device may enlet the Property, even In Tenant's absence. The 'eybox Is 8 convenience but Involves risk (such as unallthol'ized entry, theft, prOperty damalle, or pemnallnju/y). Neither the Assoclallon of REALTOR8® nor MLS requires the use a keybox. 0'

(1) Tenant au1horizJs Landlord. Landlord's property manager, and LandlOl'd's broker- to place on tile PIllper\y,a keybox containing a key 10 the Property:

(a) durinO the last~ days of this lease or any renewal or extension: and (b) anmy lime Landlord l!slsthe Property for $8le with a Texas licensed broker.

(2) Tenant may withdraw Tenanfs authorlzallon to plll!=G Jl k~!KIx on the Property by providing written notICe to landlord lind paying landlord a fee of SQW·O() as consi<I,eration for the wi\h(jrawal.

landlord WIll remove the keybox within 8 reasonable time alter receipt of 1IIe nOlIce· of wllhdrawal and payment of \he required fee.

(3) .1{ landlord or landlord's 3gems have tna<I& prior arrangements with Ienanllo _ s the Property ,andere later denied or are not able to ~ss the Property bec8use of Tenant's failure 10 make the Propert)' _sible. l.andlord may charge I enant· e irip chargl' as prOlflded 111 PIITIiQf8p!1 14C.

(4) Landlord. !!'Je property manager.

and Landlord's broker aNl not resoonslble to Tenant. Tenant's qy!!1!l!. familY. or OCCUpants for any dam!!9GS, injuries, Of losm !!!!sing from 1IH of lite keVI!olc.

urn", caused by l,ndlord. *h' PI'9OI'ty manager. or Lang'ordo, broJse&

• 15. MOVE'-INCONDITION:

A. landlOrd makes no express Of impfled warranties es 10 the Pro~$ condlUon. Tenant has inspected the PlOPiiIY erid aecepli ft AS:jS proviaealliiil't:'anarora;-'" ••. - .. _. --" .... -

a; Tenan!WlUCXllllplele~ventol')' and Con(llUOI) Form, noting any damaoas \0 thaPrQPerty, and deliver It to t.and1oid wiIItIn deys after 1118 COmmancemem Oaie. If Tenant fall$ to i1mely deliver·the Inventory and Cond Form, the Property wBI be deemed 10 be free of dal1\8gell, unless otherwise expreSSed In 1II1s Illese; TOO Invenl9EY l!nJI COnJIHiQn form Is no! II request for IllAAfrf. Tenant must dM au reQl!!!S!s for reoa1rs,n compliance wIIh P3!i!Qral1h'8, 16. MOVE.otJT:

A. Mcye:Out CIlndi!ion: When 1II1s lease ends, Tenant will sUTl'ender the Property in the same condl1iOn as..when recalVed, norma! wear end lear excepted. Tenant will leave 1IIe Property In a clean condition free of Wlresll. debris, and any personal properlY. Tenant may no! abandon !he Prorietty.

8. Qe!inj!!rlnl:

(1) "Normal wear and teal' means delerlorailon that occurs wHhout negligence, carelessness. acd<Ienf.

or abuse. .

(2) ·Sutrendel" OOCUIll when au occupants have vacaled the PIllper\y, In lIindlord's _senable

• JudGJllan!, and ~he following events occurs:

(TAA-2001) 10._ T~ _ _ _ &1.a_otl..ar'od1old's Rorx_INr/fL,__ Pogo 6011.

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• (a) the date Tenant specifies. the move-out or termination date In '3 written notic« to Lendloltll!a$ passed; or

(b) Tenanlfelums keyund ac<:IlS5devic«l>that LandlQrd provided to Tenant under 1hI$1e<I•••

(3) •AlxItKkmmenr occurs when au of the tollowlng oocur.

(a) au ocwpanlllllave vacated the p, operly. In LandlOfd'sreasooabie judgment (b) Tenant 1$ In breacllof l!1isleas\! by not timely paying fent; and (c) Ulndlordhe$ <leliVlired wril.tl!o noti<;e to Ten~nl, bya~ng "to the inside of the mainenlly door or If the llindiord is prevented from enlWng.theProperty by afflxing " 10 Iheoul$ide of the:main ~nIty d()Or. SUiting lllal LandlOid(:OnSi~1'$ the Propenyabandoned. and Tenant falls 10 respond 10 the affixed nollce by the flmerequlred In the nottee, whiCh wUI not b$ tess then 2 daysftorn lila date the notice Is afflxed 10 the,mein enlty door.

C. i'§!S9na! Properly left After Move:Ql!t:

(1) If Tenant le_$ any personal property In the Properly alter sUl'I1Indering or ab$ndoning the Property l.endlor.d may:

la) (l1s~of$uchRelsC!n81 ~rty in thel'<l$hor.alandflll;

(b) give such personal pl'0J)I!rIy 10. a.~iI!able organ~tion:'or Ie) s\Qre lind (eU $Uc!\ Jiel'Son81 property bY, folloWIng pr~ures in §54.O<IS(b)-(al. f>tQpar'YCode.

(2) Tenant mll~t ,reIlnbul'Sll l.andlOrd all l.endlord's ~onable cQsl$ under Paragrapb 160(1) for pacIIlng. rem.oVinS. slOring. and seiling the personal property iflll InIhePropeny cafter sumI!\der or ,..bend!jnment. .

11. PROPERTY MAINtENANCE:

• A.Teoom's '$ime(il /3!!!!!OIl!llbIlUles: Tenanl, ~I Ter1l!nt'sexj!etlSe. must:

(1) kGllP Ihl! Prope~ ~alllll)d sallilary. '

(2) prOmpUy dispo$lI ofaJl fjatbagelll appropriate receptacles:

(3) $llpply and Change heaIIng';!Ind air c,onditlOnlng fillersst !easl once II montl1;

,(4) ilUji\lfY iIIId "'pIUCe alillghl bUlbrl;-l\tlore$CVllnObe$,-wtd"allerl4$"tQ~iI 4iItil¢fbl$.aub6ii mQlIOXide. ~rs. gat;Jge~door' \!peners, .caRmg Ian r&l110t8s. ,and o\l1ilr dfiY/Cil$ (QI I/tf, $MI8 \)1le ,nd quality that"", Ih,lhlil, Prilp~ on Ih!! t;:prnmencement 0111$);

,(S) lnlI\J\taill approprlat!J levels of ~iICe$sery Chemicals Of, matter In any water'$Ol\enat;

(6) take- actiOn'lo picmptiy elfminale:any dange""'" condition on the Pr 0PIIJ1}';

(1) Iake,aIl necessary precautions 10 prevent broten walei' pipes due 10 freezing Qr other C8\jses;

(6) repla~e anylostormtsplacedkeys:

(9) P<IY ,iIlIYPflI'II!dic;PJ'(!lienlNe. or ;lddl1iOnal, extermination cosls d"lred bY Tenant:

(10) fentoveliloY standing watQr:

(11) ~ '1i1e kIeatIon and OpetllllOn ol.\hll maln watar cut·off valve and alllilectriC b,tea~ lIOnd how IOIWlIC,h the valV<' or btelkers Qff al <lpproprla!1i 6mei lomltlgate any potential dam.; and'

(12) promptiy notify Landlord.lnw,Uing,otau needed repairs.

B. VI!f!!Malnt!q"nce:

(1) 'Yard" means atllawns. shnJl)b8rY. MIles. 1!owerIl. gardi!/ls. trees, (O~*or otI181 l8¢acap!ng. an9 Olhi!r fQllaga PO or !lI1C/Oi1e~ On \I1e Property or on any !l8S6menl,appurtenilnl 19 \I1e plOPlrty.

a~ does notin¢ude oem ilIOII areas rn<Ifnlillned by en owrie/$' asSoc/8Iion.

(2) "MlIinI1lin fh' Y!Jr¢' lIUIans )0 peJfcim 8l:llvilies $lJCh" as. but not ilnIlted to: (iI) m9wlriO. tei1lIIzll19.

lind Irimming,1Iu! yard; (b) ~lroIUng ~In ilia yard; ani! (e) removing debritfroml/tf)'arc1 .

• T-m---,~_&la"""""orlalldlol!.l's~'__ .,.70114

Receip! " In)aga 7 of 14

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:

r' appropriate times including but not limiled 10 U1e

• (3) TenantwlU WSler the yard at reasonable e following times: --t~,--_..J:J!s:e.::!!eJ!{!-_ _ _ _ _ _ _~_ _ _ __

_ _ _ _ _ _ _ _~' Other than walerlng. 1ha yard will be mah)lIIlned as follows:

o (a) LlIndlord. al LlIndlord's expense. wBI maintain th' yanl. T_nl wlu penna Landlord and Landlord's contt8clo..' reasonable access to the yard and whl remove any pet !torn the yard at appropriate ~lIIes,

~(b) Tenanl. al Tenanl'$ expense. w"1 m8lnlaiilthe yard, . 0 (e) Tenant wal maintain Inellecl a $Cheduled yard maintenance I;OntraCl with: 0 a conltaClCt whO n!gUfarty provides su¢lsel'\llce; 0 ._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

C. PooI/Spa Mafnleoar;ce: /Wi pool or spa on the property win be maintainecl 'ilCCQrding 10 a PooUSpa MainlenaneeAddendum, .

O. PrphlbUlgns: If Tenant Installs any Iixtw8$ on tha property. 8U\hOIIZed or ·unauthorized. Iuc:h as additional emeke detectors. ioclcs. alarm SY$lems. cables, salellite dISh8$, orolber flxlutes. ""'"

fC\1Ures will become the prop8r1y Of lhe laiIdlord,. Except as 0Ch..,.,..;se pannined by law. CIlIa fuse. 01 in writing by Lendlord. hnanl may !lQ1:

(1) remove any part'of lheProperly or any 'Of Landlord's personal properly from the Property:

(:I) remOVe. change. add. or IlIkay any lock;

(3) make holes In the W9OdworI<. floors. or walls. jlXCepllhala rellSOrlallle riumberOf.man nails may be.used to haJ)g pi<:1ures,in shee\fOCll and.grooves In panefing:

(4i permit any water ftIriliture.on the Property:

(ll) In$tall.addl6onal P!IOne or video cables. ouUe!s. ante/lnas.saten ltereee~ets. or alarmsyslems;

• (6) replaee o.r remove BOOtIng lIIal.",'. Paint, or wallpaper;

(7) 10IIa1l, change. or remove any: roxtur!!. applia~, or non-real-propeny Il$m fisted In Paragraph 2;

(8) ke~p or permjl any I1aiardouS malarial on the Properly sUCl! as flammable or explosive materials;

~ k'e.o 0/ perynB An, ma~~hlcIu:atJses.~.l1abiflty..pr...fit8..and exteMed '!),,":a,noe coverage 10 be suspalllled or cancelad or any premiums to be .increased;

(10) dispose 01 any enVIronmentally datrlirienlal subslan(:e .(for eX<lmpla. motor en Of radlator lluid) on the Properly; 01 .

(11)C8ustOf aJlowenyRen 10 be filed sgalnstany portion 01 the Properly.

E. Fally .. to Malillajo: "T"""ol faUs.fo tonIp1y Wllh tbiS PatagtaPh 17 or any PooUSpa Maintenance Addendum. Landlord may. In addlllon to exercislng landlord's ~edles undei' Paragraph 27. !*form whatev~ a<:tlon Tenant I. obIigated·to petlorm and Tenant musi'lmmedi8lefy relritliurse Landlord !he.

realOllabie eXJ!8!IUS th.Iit LaiId lord incurs, '8; RI;~AI~.:' (N~: SubChapler B. C/iapler 92. Properly COde governs repafr obligations).

A. Repp!r S'lluesS,: All ,.q\lest~ for repaIr. ,"ust be In writing and dellvarad to Landlord. If TaanHs delinquent In rent at Ih81lme 8 repair nolloo Is' given, Landlord i, not obngated to mak. th., repair.

B. Completion· of Repalrs:'

11) Tenant may not repal, or cause to be repaired any c:ondHton, regarell... of the <:ause, Wlthoul LancilOrd', permission, All declslOna regarding repairs, Including the c:ompltllon of anyrepalr.wbelhtr to repair or replace the hem, and the lI8Itc:tlon of Contractors, will be It Llncllord', '\I01s dhll::re.tlon.

• T...,sQ~~_&UI_or~Repl-k.J$- ...... ,.

('"· ~~-~i~~1~.~~~·~~'e-8~o~f~1~4------------------------------------------------------~

PageS

Resid~lNIecoocemlt>g; '~.~";iel

• (2) Landlord Is nol obligated to complete a repair on a day other lhan a businiSa day un~ required to do $0 by the Property Code• C. PlIyment of R!!~"~ts:.Jel1llnt will pay Landlord or any contractor Landlord directs Tenant to pey, the f"ust$__ '2 ~ of the cost to repaIr each condition In need of repalr,.nd Landlord will pay the remainder, except for thel'ollowlng conditions which will be paid as foOowa.

(1) Repairs Ilia! ll"'dlord will Pay Enth,tv: Landlord will pay the ontire cost to .epalr:

la) a condition cauBlld by the Landlord or the negligence of the Ioandlord;

Ib) wastewater stoppagG$ or backups caused by deterioration, breakage, roolll, ground condition, faulty construction, or Il1/ilfuncllonlng equipmenl;

Ie) a condition that adversely affects the health or safety of an ordinary tenanlwhic:b Is IKlt caused by Tenant; an occupant, a member of Tenant's family, or a gual or Invitee of Tenant; and

(d) a condition In the follolYing ilem~ whiCh Is not caused by Tenant.or Tenant's negligence:

(1) heating and· air condilfonlng systems;

(2) water heatel'$; or

(3) waler penetration from structural defects.

(2) Repairs thai Tanant wll! Pay Entlmlv: Tenant will pay Landlord or any contractor landlord d.I_I. Tanant to PiIY the entire .cost to repair.

<al a condlUon caused by Tenl\lll, an occupant, a member of Tenant'8 ramOy, o( a gueslot Invitee of Tenant la fallurato timely report an Item In rieed of rePair or the failure to pl'Oporlymalntaln an Item may cause damage for whiCh Tellant may be responsible);

(b) damage from wastewater stoppages caused by foreign or Improper obJects.!n lines that excluslvelYll4lrvlc:e the Proporly;

(c) damage to doors, windOWs, or screen., and

• (d) damage from wlnelows or doorS left open• not warrant and ~n nol repair

D. Trip Chaw,,: If a repair pol'Son 1$ unable to access the Property alter making arrangements .

.wIth Tenanl to comptete the repair, Tenant will pay any ttlp charge the repair person may charge, which amount may be different from t.ha amount stated In Paragmph 14C.

E. Advance Payments.nel R.lmburs!l!l.nts: Lano;llord may requl,. advance paymantof repairs or payments undor this ·ParagraphiS for which Tenant's ....sponslble. renant must promptly reimburse Landlord the amountS under Ihls Paragraph 18 for whiCh Tenant Is responsible.

19. SECURITY DEVICES AND EXTEfUOR DOOR lOCKS:

A. Su~ter 0, Chaptet 92, Properly Code requires the Propert)' to ~ equipped wIt.h~in types of loCks aDd ~rIIy d~ l./Indlotd has rel<eyed the securllydevlces slru:& the.tasl occupant vacated the Properly or will F8key the ,ecurlly devices .withln 7 days after Tenant moves In.. 'SecuJlty device'

has t.ha mesning assigned to \hat term In §92.151. Property COde.

B~ AU noJl.· or rsguesls by. Tftnant for rJlgnrinq, changl00.. in_inge repaltiM or a_no :l!CUrilV dErfJeU mustW In wHnp. 'nsl,natlon of,ddftional Mcuffly _*, ,or additional. rtkeyIng. 9"

replgcgmam pf MK:Urity deylct1idUiift by Tenanl will be paM by T,oant In acJyan6'rand may be i.talled 901y:bY99ri1raetgt4 AUthQNed bv ltnd!prd.

Receipt " Image 9 of 14

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• 20. SMOKE DETECTORS: Subd\aptet F. Chaplet 92. Prope!1Y Code requires !he Property to be equipped Will! .sll\Qlce deteelOl$ In QertaIn locations. Requests !9r .ddltional inslall;rtlOQ. IMOectlon. Of !'l!!!!!lr of smoke de!ec1OfS mtlstb!! in writing. DisconneelingOf inleotional1t damaging a smoke delectoror removing a balmy without Immedlllle!y repIIIoing ft with a Working balt/)fy may subject Tenant 10 civP penalties and liability for dem&ges and 8110mey fees under §92.2611. PI'Qp8Ity Code.

21. LIABIUTY: Unless caused by Landlord, ~andlord 1s!!9l re$ponsible 10 Tenant, T_nl's gUests, family. Of occupants, for any damages, Injuries. or 108$1)$10 person or property caused by fire. flood. wllter leales. lee.

snow, haD, winds. expIosfon, smoke. Interruption of uIlIlUes, theft. burgh./)'. robbery. 8SAUI~ vandalism.

other pe~, 9OIldilion of !he Property, environmental contaminants (for example. catbon monoxide.

asbestOS. radon. lead-based paint. mold. fungus, etc.). or QUler occurrences or casualty losses. hwmt wi!! promptly reimburse landlord roc any loS!. pmperty damage, Of cosl 01 repairs Of serylce to !he Property causedbv Tenant. TanaOr, guests. any oecupaoJs.orany wtl.'

22. HOLDOVER: If Tenant falls 10 vacate the PrpPerty at tha lime this IINiSS ends Tenant will pay t:andlotd rent for the holdovet period and Indemnify Landlord and prospective tenenl$; for damages; including but not limited 10 lost flint. lodging expensl)$, coslsof IIIIltlion. and altomeys' tees. Rent for any hofdoV$( period will be thr\li! (3) Umes the monthly tent, calculated on a dally basis. and win be immediately due and payable daily without notice or demand.

23. RESIDENTIAL LANDLORD'S LIEN: landlord will have a ljen for !IIIllj!ld mol sQIliost·an of T§!)snts nqn;xAnjpJ oersonat ptptlf'Jrty thalia In tNe' property and maY setze such' ngneXemp. o#lpertx if Tenant fail, to pay rtnt.'SUbchapter-C. Chaar 54. ptopem; Coda goyerns the'rights and-OOliQa1iontoftbe padies NgMffno landfprsrs ·nen. -bend!ord may coUect'cnarge {Qr packlpg. remoylng, or stgring prpptrtv Sll%ed in -addftIm to any..othtr amount! Landk>t4 II ,nt!tlsd to 'fAiva, landlord may sell or dfsoose of any 'liz'"

property In 'accordance with the,prgy!slons of §§4.Q45. pmpgrty Code.

• 24. $UBORDINAnON: Thi$ lease and Tenants leasehold Interesl are and wlhbe SlJbject. subordlnele, and In"rlor \9: (I)eri'! l/!In or encumbrance !lOW or later placed on lIIe Properly by landlord; (U)811 advances m8de under any such lien or ellC\lmbrance; (lIQ l/ieinlerl)$t payable on any s~ch lien or encumbrance: (Iv)

any ana $llliiliMlli arid extiI1skliii or any iluClilien-oTiltlcumbrllrice:' (vlillifij$TiiCIiVi covenam;arid (VI)

the riglll$ of any owne.-s· assocIalion affecting !he Property.

25. CASlIALTV LOSS OR CONDEMNATION: Section 92.054. property Code govetnsthe rights and obQgallOna of the pal1les regatdinge ceSUalty less 10 !he Property. MY proceeds. payment for dluna!lGs.

$e\llein_ awards. or oiher SlIilIS paid because ola casually 10" to Il're property will be landlOrd's sore JltOI!I'rty. For the purpose of !hlslem, any coodem nation ohllor a pari or the Property 1$ a casually Joss.

26. SPECIAl PROVISIONS: (OQnot Jnsert. II lease-option or 'aas,,·pUlChaI$l1 c;I_WiIhouf the sssls/enca d legll! cOU/iseL Spe¢ill! obIigallons lIIlel IIIIIlII/liel,lunder $1l1tut9 apply-to :sucll trllll$BC/lOlls.j

• Receipt 1. Image 10 or 14

Page 10

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ReololtnGolLaa........,.;ng: ... '3 31£ $jazalio{ 27. DEFAULT:

• A. If Landlord raas to comply wiUllllis lease. Tenant may seek artf reller provided by law.

B. II Tenant falls to ~mely pay all amounts due under Ihls lease or otherwise ralls 10 comply willi IIlIs IOllSe.

Tenant wUI be In default and:

(I) landlord may terminale Tenanl's right 10 occupy !he Property by prQVlding Tenant with lit least one day writlvil notice 10 vacate;

(2) all unjlald rems which are payallle durtng the remainder orlllis lease or artf tenGwlll period' will be accelerated wllhout notice or demand;

(3) landlord may exerCise landlord's lien under Paragraph 23 and any other rights under this lease Or the Property C¢e: and

(4) Tenantwlll be liable for:

(a) any 100t rent:

(b) La!ldiorcr, cost of releHing the Property InCluding but not limilld to leasing fees. ~ feeS, u1iItty chal'llGS. ami other fees reasORably ~S8ty to reIeIlhe Property:

(e) .repaIrs 10 the.PlOperty for U$e beyond normal weer and tear:

(eI) all landloRl'a com auociated wlIh eviction of TtnI!nt.lnCluding but noIllmltacI to atIOll18)I's iees;;toIIrt costs. costS or S41V1w. and prtjUdgmentlmeresf; .

(e) alll8lldio!li's i:oslS associated wlIh collection or e",ounts due .under ihis.lease. fJlduding but noI fimlte4 to coIlectlOn fees, late charges. and returned eheck chaI'll8S: lind . , (I) any oIbeI' ~ to wllieh LJII(\lord may be en\i1l8d by law.

C; Nolieeto vacateundar Paragraph 278(1) may be,by 8I1y m~arispermittc<l bY.§24,OPS. p.rty COde, D. Land1or!l will aIte",pt 10 mitigate any damage or loss caused by Tenant's breach by IiltemptIng to reIe!

• I/le .!>r9perty 10 acceptable tenants and reducing Tenanfs Ilablllty accordingly.

~.. EARLY TERMINATION: This lease tJeglnson the Commencement Date .aI1!I ends on the ElcpitatiOn date ---_4'IA'AIe'Ii,Kl-{l) ' "....iIId "Ader Pel'agfapll4; ~1j exlende6 b)'wtitten'lI9teemef1t-cflhe-pe'Ii\I', or fIIi),"",irMIed earlier ,under Pa~ 27, by agreement 01 the partie$, appliCable law. or llils Paragl\!ph28.

A. M!lj!ary.8ndFamiIV ViOlence: Tenants mIIf haVe apecial Slalulory rights to terminate IhlllIease'earty In certain ~11uations involVing famHyvlolenc8 or a military deployment orlransfer. '

(1).Ml!I!i!x: If Tenant is or becomes a servicemember or a dependentofaservfcemember. Tenant may tennlnal8 UiIs JeaSe by delivering '10 Landlord a Wl'i1l8l1 notiCe o(tenninallM and 1i<:Ojiy of ~ ,app'?f"/ale goviV!lII\etI\docum~1 prtMdlng evidenoe of: <a' ·en1tatice into miIII8ry service; (b)

mHllary crdm tor a permanent change or stallon (PCS): Or (c) rniilaty crde,,' III,cIe{IIoy with • mfl/ta/)' unit for nof lesslhan 90 days. Tennlna,llDn Inffective ~. IhIII30lh day aiIef IIl1f fil3tlllleon which tile next rental peYl\lenl Is due aner !he date on which the iIo\ice Is deU-.d. SaclJon .92;017. Propeity COde governs the rlghls and, obligations of IIie patties underthla ~ph. ' .

(2)femllv V-I9!.nC!: Tenant nv¥f termlnale thlt lease If Tenant obtains and pr~" Uonc\lOnl withe copy ,of II court order described under 592.016. Property Code protecting Tenant or an occuPllnt from f&may violence committed by. colenant or OOCUPllnl of the. Properly. Seciloll'.92.01$.

PtOperty Code governs the rights and ob" gaUons of th'1 par!k!s under this paragr:aph.

B. AykmrmmJ and Subletting'

(1) T~nl may not a.ssIgnthls leaie or sublet the Pro~ without Landlord's written consent.

• (TAlt2OCit)l~ T.~~~_&"-"'I.artdIord ~Ji!,~ .• Plgel10114

Recelpi1, Image 11 of 14

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RosIdoOlialL ... c t«icMllog ,%$8£ ~tYi C1 I l2JlfT~narit'ieque5Ui an e~iiy'termina"oo oftlii.lease un<ferthisPara9,aph 286; Tenant may'aHempt .,•' ..' tonnd a replacement tenant aryd may '\lllue$1 Landlord Ioqo ("~'~m¢, talldl6(d may, but is riOt ot>li~liledIQ.all.mprJ(I.'fi~d · a replacementlenanlUn<fer 'thlsparagraph,

\3l Any·assignlie. $ulltenaOI, ,6rreplaeemenltenanl must, ;'; l,andl&d's djse'tltkln. be i!cee~bfeas a fen~t, and mUSf Sigh} (al-a n~ !e~se "11111 \6ti)ls not iess favora-ble to Lalldfordthan tiUs lease or, Otherwis&acc~pfablo tola(ldJord; (bl_aSUi:>!ease wilh -Iermseppfovedby "andlOrdi orle);)n 3sslg,nri\c"tot!hl$le~sein lIfotmapprQvridby lilfldlord, ' ,

(4) At inEitlthe Ull'lplo!d ;lgre". ",. permit ana,signee, subtenant. at n!jIlacementlet>ant to occupy the Properly, Tenant Vin,' pay WllldlQrd: , (a) l ! T-eMQfProcures Il)eass1gnee,-svblenalll. Queplac~menne"'intwifb ~rm~S:(JJ Q {QS '...• .• . , , "

O\ii)_._ _% «OO~',s-mol1ll1 t~l\t\lll)llllea$slgn¢e;,s\iblenal)t.or repi;!cem~nll,",.lll i,to pay~ .

(blli k~n(jler" prOJ:UrGS l~a$~l!Ine!l•• ~titern",t. ¢t repla<:$j)!)nltMilllt:

o {i) $ • -0 .(li) ---.....;..%cl·ooQ·s-rnontl\ ront that lI,-ellSsj~Me.-&ub'leMlit. orreptacen!enlternlJlt is.lopay.

(5)Untess~KPreS$iy.~"'t~olhetwise ;~ap assI911men\ -of'subi,jasa, T',"~ will net bif.reieilseO from i'(.li)a~I'so~!II!\r.QhS \lnd~fthl$ leas6'b!te~l.Is~ Ofal)a~$lpn!ilentoi $~6tei!Se•. An l!SjIl!)omjlntc{ tl1l$ It!as/!,or II: $ublea$liol'thi$".Iease wIthout \:andlllt<!'s Wrillen<;onsaot irvotdableby UlI)t!lOr d.

Page 12

• ••

• ~l_~' ,3?:i2;S: Gf?::wtiq

• 33. AGREEMENT OF PARTIES:

A. Entire Agreemwt: There are no oral agteemenlS between landlord and Tenant TIllS lease c:antalns 1he entire· 8greemenl between l.andlord and Tenanl and may ncI be changed except by written egreement .

B. 8indlng EIfec!; This lease is binding upon and inurll$ 10 1he benelil of lilt parties to this leese and \heir respective heirs. e~ectJlcrs. edminislram. successOIS. and permilled assigns.

C. Wand Seyerjlt; All Tenants are joinlly and severally liable lOr ell j)tOlIisions of 1hls lease. My act or notice to. ""und 10. or signature of. anyone or more 01 the TenanlS regarding any tenncf 1hls lease. lIS 8lder\8lon. l\screnawal. 0( its termination Is binding on all T enanlS executing ·llIls lease.

D. ~: Landlord's pasl delay. walver,or non·enforcemenl cf areotal due date or any other ,tohl will not be deemed to.be a waiver cfany other bleach by Tenant or any 0Ihet right Iii lhis lease.

E. S!lli!!8b!e ClauSes: Should a CQurl find any ~ause In thIS leaSe unenfcr(!ellble. 1he /eI'IIII1nder cf \hl$ lease will not be IIffacted and all other provisions In ibis II!8se will remain elllcrceabJe.

F. Ccn!roI!ln9 law; The laws of 1/le Siat!! 01 Texas govern the Inlerpretation.vaDdily. performance. and enfotI:ement of 1111$ lease• .G. Copyright: If an active REALTOR® member of \he Texas Assoc:latiOtl cf REALTORSl!) or an aetive.

member of 1/le Stale Bar of Texas does not negoliale this lease as a pai1y or for one of \he petties•.

ei1her as II perty's broker or atloroey. this lease is v*ble III will by Tenant.

34. INFORMATION:

• A. Future lnqUlres aboul IIlls lease, rental payment:;. end security deposfts Should be c:!lreded to ll1e pel'S9" lisled lor receipt olool!Cll$ for Landlord under Paragraph 32-

B. It. IsTenanr& responsibility to delennlne, before signiiig. uii$' !9aSe:lf; (I} aD services (e.g., utilities.

connect!on&.schooIs, andtransportatlcn) areacce$,!ble to or 'rem the Properly; (II) such$8tVices are S~il~ for Tenaol's neads and wishes; and (til) Tena", Is satisfied with 1/le. PropellY's cOn\IiliOn.

C.· The brokers to this lease have 00 knowledge of whether Landlord is delinquent In Iha payment of any IJenllgillnst the, Property.

O. Unpaid rentatld any unpaid amount under lhislease are repor\abl9tocred"1t repol1!ng ~es.

E. !feU ~nIs. over 18. years 01 age dill during 1his lease. Landlon:t may: (i) permil the piInIon named below to a _ the Property at reasonable times In Latldlord'ior Landlord's egli!lrs presence; (11)

permit the !lamed panlon to remove Tenanf.s p81$Ot\81 properly; atld (ill) refundlha secuiiIy deposit.

leSs deduclll)ns, to \he named peISOII. SectfOn.92.014. PropertyCQ4e governs procedureli to follow In \he \M!nt 01 a ttmanl's dea1il.

~j)r.I' ~lili\ 1:~ -"J'I1.~()1 F. The Texas l)epartmant of Public safety maintains II database lhatllla public may search. at no cost. 10 determine Ifre9lSlerad sex otrQoders'arelQc:atecllnQ8tlaln ai8as (see.www.tl!dpulale~usunder.1ll.

tina liervlces). Fllt lnfonn.8Uon _mfOO jl8llt criminal acIMIy In eet!lIinartia$•. contact \he local pOlice

• depanment

(TARi200I)'lo.s:05- T~ _ _ _ & lancllOld or landlold\l ~$_ Poo.rIe l~oI14

Receipt 1. Image 1301 14

Page 13

• .:,.....------------------------.

t•

.

"

• _Lnse ......mIng: ,330£ .~~I G. LandlorCfs Insurance does nol CDVel Tenanl from 10$5 of pefSOJ1al property. Landlord recommends UI8\.

. Tenant ob!ai~~uran<:e . ~orl:aSualt~ such as fire. HOOd. walei' damage. and theft. Tenant represenIs • IhatTananl~lntend. 0 cJoesMt Inland 10 purchase sucla insurance.

H. ol~~~sb~.~l~·~~~~~~~~~--

Yiill)ilwill nol IlCt liS tIie Proper1y manager for Ia~fd.

__~-----------------­

I. This leass Is negotjableblllWoenlhepliitias. This '.58 Is binding upon flnal accaplal'lCe.R~1T CAREFUllY. If you dO not understand the elfecl·of 1Ii1sI8as$.conSwt your attorney BeFOAE ~In",

Tenorn

.,

• .-!:at. bARpph

• Receipi1. Image 140f14

Page 14

1 STATE OF TEXAS 2 COUNTY OF TRAVIS 3 I, Cathy Mata, Official Court Reporter in and for 4 the County Court at Law No. 1 of Travis County, State of 5 Texas, do hereby certify that the foregoing contains a 6 true and correct transcription of all portions of 7 evidence and other proceedings requested in writing by 8 counsel for the parties to be included in this volume of 9 the Reporter's Record, in the above-styled and numbered 10 cause, all of which occurred in open court or in 11 chambers and were reported by me. 12 I further certify that this Reporter's Record of 13 the proceedings truly and correctly reflects the 14 exhibits, if any, admitted, tendered in an offer of 15 proof or offered into evidence. 16 I further certify that the total cost for the 17 preparation of this Reporter's Record is $209.00 and was 18 paid/will be paid by ~M~r~.~~~~~~~~~~~ 19 WITNESS MY OFFICIAL HAND this, the 23rd of 20 September, 2013. 21

22 /s/ Cathy Mata Cathy Mata, Texas CSR No. 6126 23 Expiration Date: 12/31/13 Official Court Reporter, County Court at Law No. 1 24 Travis County, Texas P.O. Box 1748, Austin, Texas 78767 25 Telephone (512) 854-9252

Cathy Mata, CSR

County Court at Law No. 1 Travis County, Texas 512-854-9252

EXHIBIT 4

113

l!mREAL-TRONl\U:NAGEMENT Plldntlffillrd Appel/llm

v.

STEPHANIE DBLEON ,Osftttda1lf1lnilApptllet

~nd~ $d AP)1eI1<l~. step1lanj~ DeLeon {,'Ms. DeLeort~ file~ mis Motion To Dismiss FQr lack; of lurisdM1Qn and Brief In Support (,'MotiOg),} asking the Court to <lismiss

Plainttff's suit with Jll:ejudi~hl:oau~ lheDefendallt laoks slallding to' R~thjs. adion because it was not 11; t:mdlontat ~ timeillfihe)lUrp\irted "lease." MOJepver, Ms. DdAon al\ks tb~ Caurt to.award her all :re~nable and llecO!.ssary attomey fees lIIld costs.ofcourt putSlI8Ilt to TQa&RuJ~·

of CivjJ 1'):Qced!lnl14hnd 152. In SUI'p<>rt ofwblch Ms. DOlLeonwoulll ~sl!~YsbOW IInto thO! Court as fullows~

L SliMMAltV The Flaint\ff ftfed an evi()ffon suit to ~i\1 possession of 3305 SRlUliel Drive, Aufltin, TI=S 78759 {~"l'roJlertY"). HQwevllr. it neither owns the Property nor dian b4Vll any

possts$GQo' interest in i~ at the time of th" P\lrpol'ted "lellSe." 111e urtdisputed fact is that tb!:.

";

B{a:jutifi" lacks standing to bring this acfion bdcausei~ was nllto landiotd (It the lime; of thc.t

purported "lease". 0Jt Apiil 21, 2011, the 200th Judicial District C!>urt of TI"!lVIS C.ollllt;Y. Texas. entered an proer alloWing Tm 111e rndependent Bankers Bank {"Bank"} to flll'eoJo$e on the

Property>, On J1me7; 2011, .the Property ~ foreclosed upon and $Old.lO:JJjIlBank m$king the

•

• wlllch ttllo IOllger owaed • to the Defundant approximately silt menths later. Then under the guise: of the "ieJ!l;e," the Plaintiff entered the Jlrop!!r!y and exerci$ed its "rights" and ,rem£wcd

amnO/[_ty $8,000;00 worth ofpr~rty. Because there WJis tlovlllid lease. thel'Jainriffstole

from the Oefl:lidant MOreimpertantly. becau~ the PlaintJrrwaa not a laMlotd it doesllOt'have atan~ing te pursue: this lawsuit. A:s SQIlh, the CoU)'t sl;tollld dlsmi'sJ thjs ,actien with prejudiCe

because no atnendment can cure this jurisdiction defect. IL l'ifOTJON TO DlSMlSS EvtDlNa:

ltI support of this Motion, Ms, Deleon relies upon. and incorfll)rates hy reference tbllC folltlWing;t\vldenile, whicb iscontslned.lnthcAppendilli fiI~ b¢rewlth.

lilxlJmrrA The,200lb Judicial District CIlUitOrder AUoWill1! FOtcclosute TheSubstitute'T(IIStee's peed

The Purported Lease Agmrnent ~rrJ) T~Home Equity Security Instrllment EJalllIlTE TTaVis County Ctillftal Appraisal R¢port {In 330S SP!lniil'l DriVe, Austin, Texas'lB1$S1

Lettei'evirleru;mg Plalntitrs ]>ossessiofi of Deftndant's !>foperty Mil Notice teV/lC8te

EX'IJDlttG Thlllustib!: of the Pe:aee O!:der Dismissing'Suit WithPna'udiee EX,ullrrH Mfiila¥it'OfMatthew J. Wagner FOr Attorney F~

EJalIB1TJ Affidavltof Amanda Ramos ExmarrJ Affidavit ofLindaHillksand Redacted .Billin& Rl!cords.

m. FAe1'UAL nA'Cl\GRQlIl:ID • • A. Tbe 1'rolRrty

On lum: 2'4, 2005, Kevjn 6il1rwlrtn executed a Texas Home Equity Sec1llitll TnstMnllllt ("Deed'') S(ll:Uring '!he PropelfY! Pl!tsUant to. the tenns oHhe Deed, ift!le.Projx\I'\y is sold IInder

the POWer 1)f Sale provisiol) lUIQ not surrendered, the borrower "shall ·~· ./I tenllll~ at $ldfera!We cand tfll~ybe tllml)veby writ l)flmsses~ion Ol'otller Qtiurtproceeding."~

B. :rile DlstritWOU:l't (1l1!1e On April 'II, toll, the 10011> JUdicial District Court of TraVis Couoty. Tex:as issued. final orQilr'lll1owml{ the Bank tll fureel~ on tile Property.] This .oase is currently on l'lPpeal

pt:eSilmao1y based on the trial routt's denial of ~t\V1n BierWirth's request fur teave to file It tate response 10 the TIB'slt1Gtion fOrS\lll)mary judgmllnt:.t C.The FhrecIO$\lre~And The N'elf ()wiler

On JUne '1, 2011, the 6ank Jo~losed or! tile Property.s Pursuant to tile Deed,K:eVin Bi~rWittll. lIS well .lIS any person residing1at the Property, .became II tenan~ lit· ~l;Ifferance.6

MQf'eOvel'. the l'ravisCotjn~CeI!tnU Appl'1\iwOistrict's.teeords retleQttlla'ttbe Bank-not the l>!aintrff-!'lWilS tft~ Property. 7

I).

•

The "Ulise!t Agreement

On NQV<Inlbl'r23, ZOIl, the PI~tifT IItId Ms. 0elAl:>n pli!portedly ¢Iltered iiito 11 l¢llSe

agreement for tlte Property,1I HQwever, at tIIis time tile pktlntiffdid notown tile property or hold 1liiY possessory interest in it bCCl\us~ oEtlte foreclosure sale on June 7, 201 t. Therefore. the

P]aintiffliad no legal authority tounnat~raJly lease: the Property to Ms. DeLeon.

E. Tbe Theft of Defend"nt's Property & Notlee to Vallate On January 17.2012, the Plaintiff c:ntered t~e PropertYlltld rook approximately$8,QOO.OO

ofMs. OeLeon!s\lItIdher mather's property under a non-existent' landlord's lien. AlfiJIlg with helpin&itselfto the'peJ$QJl\U propertYltppsted~ 110liceto vaeatelelter givmg the Dcfel\dlll\tonly t day to yacate. 9 F. The Justice OrThe Peal» EvIction Case

Ott Febl'l1ary 2, 2012 the Justice of the Peace dismissed Plaintiff's ,evlctio'li action with pt\ljUdice.'o IV. LWALSTANDA.Rn

"tIie pIi!pOse ofa plea to jtniSdiction is to dismiss II cause nfactiM without regard: to wliethertke olaitllhas merit. mCl7Id 1St; 1>. )Jlu~, 34 S.W,ld 541, 554 ('fex.2QOO). The Court

must decidewllether ll1e plaitttiff III\S:l!fflnnatively demonsttJl'led IhIs coUrt's jurisdiction to hear i1i'b sult. cased ilUtlie facts aJlesed b~ plaintifij and whl;n JI~ssary to moIve jurisdictlQllal fl!Cts,(lI(~ldence slibmittill:i: tly the J>ilIfies. Se~ Stqte v, .HoJl~'J,7.·1 S,W;3d 639, 64243 (I'ex.

';.Ofl''I);. Jjlattdlnd~p. $ck Dist.l4 S. W.3i:1 at 555; set, e,/l-. State v. Sledge,. 36 s.w.ld t52, IS5

•

(ftll.App.-HlllJSlOn II 01 mistJ 2000, pet, dettitd) (trial OOllrt oondlicted lleari~ $ld ~ived oral

testiM'9ny, affidavits. exh~ifS;!lffd~tlpuli}tl~JIll).

St;mljing is Iroomponent ll~ subject Matter j)Jdsdiction and must be resolVed. by ttre Court prior io this !;!1st moving any fbrther. ~e Texas Ass 'n(olB,us, Y. Texps Air CIiIWoI Bil, gS2

S.W.2dA4J),443 (Tex. 1993). V. StJMMAllYOF ARGUMENT The Plaintiff's law suit ~IlQt!ld be qismissed Witlt prej\ldiClt lImltls!! it _ lWt· ha¥!!

standing pursue ~e .ction. The .I'lainliff was not a landlord ~ause.it old not hold a PO~$ory interest in the Propetjyat the lime of the PllfJ>orted. "lel1$e," As suCh, the Plaintiff !)at\not

estabJi~ an ;essential ~emel)t llf its forcibledetainuaotion - the..Llmdlord-Tenant l'tIatlQllship. ~ellause IlO AIllendment ¢!Ill CIlre ibis glaring juriSdiet/llMl ~f®t Plilintlff's IaWSIlIt ~ be

diem~ed with prejudice~ MQre(lver, bellause M:;. OeLelln bad to hire le~ n:presentatlon to. defend tltc.fotc.iI)l~ detainer actiol\ inthej~~Court an<!thi!!:Court she is entitled to reasonallic

and n~attomeysfee underTel<M Rule.o{CivifPtQcedure 1l19and 752. Vl. ARGUMfi/'ITIf & All'OJOliUTlE$

~ 'JiIiePJab,ltltrWlI$l'ii)U Laadl.!lM AtTlljl Tilll~ (JfThe Purported Leue.

The ulldisput«l fa(;t is ~ ~lal.nttffwu. ll!lta.ll1ndlol'!l at the tiroo ()fth'll~l\llISe.

t~ be a landlord in Texas. a person or enlitytnust {l) OWll a pIlsseslIOl'Y illtere~ ill real pI'<l~,

(2) be aol~ to legally lease tbat'illterllSt Io anothex, and (3) retain a,reversfuntWY iotelest in mil ICI1$4I pro~rty, A tenant lit s1!fi'th:ance oonnot belt landlord because it does not have: ,*po~ry

interesdn the real prOperty. See reM Mort$. Corp. v. Jacob, 90.2 S. W.2~ ~27. 530 {reJi';.App,.1i:l ..Paso; f9!l4, writ 4enieq) (lenanl at $~ee dQes not own property inlere$t 'CIIf)Ilb~ of • • ass!g,m)te!\t): Grtffin 11. ReftWlih. 1!J1 S. W.2d 634, 637 (T~.t\pp.-Texarkana 1931, writ dism'd) (sante),

1. 7'!te 1!JalnlljJ!teller beld a ptlmu()I'JIlntete# In tile 1Jtqperty ¥It .tIA~ time Il/the purported 1eose bemUSe he wos fl tenant:at t6ujftmnce, The Plaintiff never held a possessory interest in the ProperlY at the tlmllm the plH'pIlrted

lease because he w~ a tenant at suftbrance. A possessory interest in property i& the riglltte·

pcSsllss property to the exclusion of others. Blocl'$ Law Dlctto1ffJl'JJ )284 (9ilJ ed, .2009). A tenant at:suft'erance does nat own a possessory:interest In property udis merel1,m OcCUpant "in

nakedpossessiol1 of property" that is not in pri~i~ with the owner,ftfjd possesses no assignable interest [CM Mong; CIJrp. v. Jacob, 902 S.W.2d S27, 530 (fex.ApJI••EI. 'Pasol994, wnl

aenied); GOggf1lsv. Leo, 849 S. W.2d 373, 377 (Tex:.AjIp:.Houstoil [14111 Disl.] 1993, no wnt) (no privity}; Gr(fTm v. Reyrrolds, 10:7 S.W.2d 634, 631 (Tex.App.-T~arkana 1937, wrU:dWmd) (nol

assignable). As long as:.lbe deed of trust states that the puwbaSer&comes a tenant at suft'eranQll.

"

!bat putCbaserofreal property who IlOlltinuestO ocCupy the property after default sndforeclosure

is a IeQoot at sufferance. see Elwell Y, CQuntl')'Wide Iloule Loans, Inc'$ 261 S.W,3d S66, i'68

On Jwte'l,201l, the Plaintiffbecatne a tenant atsutrerance beeause oflhe Wn!c1osure

.sale. II As such.lbe Plaintiff never held a 119sseSSpry interest inlhe.Pl'oPIII'IY at the Iime>of the purported "lease>!. Theretbre. l>laintlft could not have legally .leased tfIe Property to Ms. D\ll&Qn.

• • B. r~l~titt Was Not A Landlord At The Tim~ Of' The PutpOrted Lease;

T...,

TherefOle, hDotS Notllave StanalngTc>:l'ursue Tbe Forcible Detaiiler Action.

The Plaintiff W8SfiQ! a IMdloi'd at the tinieof the purported lease; therefore,. it: does not h~ standing to purs~ the fQttlllle d~er action. In Texas, a llIndloro has to prove the foUI'!W$ng essentlat elements to SU4lcelid on a forcible detainer aotion: 1) there 1s a llIndlord.

tenant relaOOQhip betWeen tbe parties, Z) the tenant 1:1111 be evieted because the tenant is a holdover t$lant. II, tenant at will, a tenant at sutferan~ or jJ tenant of a ~'Who acquired poostiision Jtr.forclble entry; Jl~ the lami/ord made a proper demand for posse~ 4) the time

pedQd to vacate.th~ proelittybJIs ~Pired, and 5) the tenant has refused to surren~ possessionio the Ihndlord. TIlX. PRoP. £QI)E §24.002 (elements 1.-S' (emphasis lidded). If there is no landinro-leTll\llt relatlQosfli,fbelWel:n the parties. there cantle flO fot'eible detainer action.

1. there Jj11l$ 1101 II Ililldlord-ttllflllt I'dtitwn$htp ht!ilw!t1l 'lie PlailltlJJ.,,1/1I M$, J)d;eon.

As detailed more~larlyabove. the PllIlntiff.llWUIot de;ntQn:strate that KWlIIf. Jan41qrd

~SCi .at the time of the "l~i(dJd n9t oWli apoSSCS$Ol'1 IJlt.,rest in. the~. Specltlo8ll~ DY way of the forecloll\ll'e' sale, it was at. most a ~atJt at sulferan~,whll1h it nOl 11

poslless\lty lnfer~ at aU. BecaUse the Plaliltiff was notll' landlDnj: at tIw tim~Qftbe "lease~' it does.lIIlt have slanding to pursue tbJsll~i.on.

C;· .~ .DI!LI!OD IS Entitled To ~Qldlle AttopJe)' F. . A!ldC~ Of CQurt ttndl!rTna; R~ot~h PrOcedure 149 And '152".

Ms. DeLeon is entiiled t\l reasonable attomeyfire~ artd-eoslS of COUtl unclCt Texas Rules or CiItIlPloeedure 149 ("Rule 749'') I;Illd ~2 .C'Rule 1S2~), S.1lt! TIlX. It (:",.1\ 14'. 752.

$p«lfllllllty,under Rule 749 RbrealtrOfl:i1> t~ulred \0 POst bQnd to .1Il! ~ :tQensDrjl thl!t~t

will ~ute his appeal with etfeJ;ll .anjl pay all 1lO$t/l lind _ages wllldl mal! hi:: lIdjudged offue

Pap7

• • bend tn im;Iude all items enumenrted in Rule 152. Id Onaer Rule 752 the dalltages that are recaverabfe includll that· ()f (IlaSOnaDle and n~essary attomllY f()ell. In the justil:!: and .QI)unty

9Qur:/$, TBx~Qw. P, 75;2; #ll dim Krull v. Somora, 879:S.W:ld329, 332 (Tex.A:}lp.--Houllt<m f1411t Dil!U 1994~ writ denied (statil1g that [d]amage claims ,I'IIllUed to maintain Qrtibtainlng

PJ?Ssession nf the I'remiSel!.may be jomed with the detlliner lICtion and Ihigated in tIlecOllllty COllrt).

As acfl.lSUlt of the Pla.!ntifffilling theforcilile. detailler lWtion.and IIPpeaiillg to tile cOunty ~ 't&.. DeLeqn has ~tained dazruiges, lncllldmg .that nf.attomey fees; lZ Th:erefore, after

bearing.. Ms•. DeLeon reqllc$ th~ Qourt \lW!ll'd h\l.all reasonable and ile()essary attorney fees fer

lfefen~n,g this actJOilalooi wan !ill .QI)sts Clf cou~J3 VU,eQNCUt1sI0N

Plaill~:ff]las no lItandil!8 to pu~ue thiuction b~1lSe it wasliot a landlotd. plal,otjtfhad i!opoSSflSSbry inte~ .itl the PrPperty anne tint!! oftlte purpurt~d lease. As suCh,'the DdmdRnt

TeW@tHllIyrequests thlltPJilintifl"s laws.uitbe.lfismiss~ with pJt!jlldiee becausewamendment to. the suit can ~llre the jurisdiwonal defect. Moreover. beca.1lSe Ms. DeLeqriWIIiJ tequtred to dC!f~nd this action in the! ju$llcepou!t and j~ this CQIll'ti .she i$ ~tled to tbe r()eQ~ Of ller attorney fees and c.osts after fh!,~elS disrriissed, V1lI. PMYl!1t

Based 00 the pteqtlding, Mil. ~~Ol! prays that tbeP!amtiff suit be.! dismissed with prdudl~ baSed on stanrting gI'Oull(is and afterhca.rln& be aWIIJ'ded all of' her ~dbleand JI~l,\ttomey fee IIIId cOstSofoolllf and all otherreUef she is justly entitled..

• • Res~ffiill>, submitted,

HAlt A'l1'ORlllEVS,.P.C.

{Sf MtTrHT:;W.I,. W'&GNtR Ni¢h~fl1l! t\!.l~ fllll!

State Bm:No.:24069863

RQIl SI!:tijl!

State BarNo.: 12t28'400

Miltthew r. W~

State BarNo,: 1401$232

701 Brazos, SuiteSOO

Austm, Tllxas 78701

pbQlle: {'12) 551·;;041

fax: (S12)692~2833

AT1O:RNEY$FORDlFENJ)~

CERTIFICATE QFSEaVICII

TIle undersigned certifies thatthe> ~mg was servCli.on all.counsc:l Qf ~ni Qll April n~20t2,

EMAIL Je!€klly ~yL!:lg;U Gro~p 46oS: South La!JuU"Blvd. MtstiU. T1!XlIS 78745

Matthew J. Wagnet'

.,

1 • MR. WAGNER: 'le,s, •

1D1'll:" Henor.

5

2 I'd like \::''0 nail li18. Oel,eQn to the stand , 3 T'!!'S couar: Okay. M$. peL-eon, e:ome an up .

4 ~all I l"lIve yt;!$tl raiSe£> y.ouir ri9ht hanG!.

5 (W i t.ne-as SWorn I

6 THE COUR,T : Please ceme up andh:ave <1 seat::.

7 1ifEl. •.Wl\G.NER; Your Honor, WQuld YE:>U like Ille

ll. t.Q stand, 5:\:\:?

9 T.na "·001'1.'1': You Q.a:n ai t .

10 S''l'EPHAIHE I.1t.1..Wl'l, llhavin·g been ". ,·r"" duly swC);t'Il, t;'est.ifieaas. .fi>1l·0WS;

12 04.l!ElGT E~i\MnIAl' I@N 13 BY MR. WAGNER:

],4 .9 . M,s. DeLeQn~ ple<!,seata.te yo.ur na-me fer the 1S :t..e.oord .

16 $tePhanh LliM DUe;QI1..

~7 Q. An.~ where do you cUJ:rently live Qr res·i<il\l'?

'18 :sa·us Spa·niel Drive, Aust.i:n, T&l:tas 79759.

19, Q. .!I:o.'<l. !low lan~ !:lave you lived the-rEi?

:lOU.

~. And wboa!;: yo-u .se.lGcct. Pl:~(>P"'l:'t>1?

22 ~. tt )!t'~t a .l1 my t.e,,!:ui~li'ements, my d:auqhtex's

23 s¢hool ciis.triot, my price range, and Qavinq ttrree 24 bedrGOllls so hila'!:;

• did ,

•

A. Kev;in lUez;wi,rth.

Q. Md how do you know tha't he signed that

do.c:u'lli ent '< !l ' 1\.. lie s;i;g,n ed it in front Of me on that day. i MRc. WAGNER: 'leur IIl'>nor, ! Inove to 9 irl'tr"O:d;Uee Itla:l,J1.tiff' s Exl'\:ibit Nwnber 9 . jPlain,t i;ff's Exh·ibit. No . 1 offe"ed)

1(' MR, l"ELLl(: !'to Gbjec,ticO;l:\,,' 'l'O),)!? Honor',

11 THt COUR'1': .1 will he admitted.

t?laintiff ' s EKhib-it No.1 adm.itted)

Q. 151' 1';\1t. WAGNER) And pripr, to e;nt~lJ';inq l.nto 14 • th'a,tlea's $, lla~ yo:\! ~ad ally Ci;lnversatiolls wi th the 15 De,fendant, Mr., l:!Lerw.irth1 A.

o. And w\'lat were t,he Conte-n,ts or -- whal): were the

1,8 cOl'll!ientstho,se ¢env.ers,ati':'lIl;;? 19 'On t"ll.ceclay that we. actual..ly sh()wed the he had mentioned thact: the ,1'>'<;>1.15e wa'l$ in a ll>roce·$ s, and th<i t: c'o uld $,ome,time$ tak.e up

22 t.o two ye1li::t'fiI. Apli, that i f for arty reason the !:lank

,23 actuallyfinalJ.zed the for'l'clo.;,,~ra an~ nee<;!e"d, lIk~ out qf the then r wonl<!i be <re'tUng bao;tk my full depQs,it;.• • CAUSE 11\0. c.t-eY·n..oo2167 KBR&\LT:R:ON MANAGEMEltt § IN THE CQUNTYCOUJlT P14th1Jg1f1filAppt!ilMf . § §

§

v. § CetiNT¥ COURt A'r LAW NQ.l

STEi>lIA.tm; DELEON lJIIpnllant artdAppt!Uee

I

§ TRA~ cOUNTY TEXAS

MUIlON TV WITIIDRAW

Mpvant, Sal' Altotn~; r:c. and iis attom~~ ("Hall"} files its MQtion ta Wifkdraw as ~Q~ael fOI'l>efCndant, S!ePhaitieDe:lAon. [n support, Hall snllWs th~ following: J. l'r;()ted\ln,dJlbtory ~ ,',

,

L 0)1 Febmaryl. ~012. Kbtealtl'on Managemenes ("K~ltron") evMio~ pro~ was

disl'/lil;.sed.\ly tile JMiee ~thl!PeJi'ceCourt (fue- "JusticeCourf').

on this mo\ioll'.

6, ~y.ant hils.$en'ed Ilefandantbycertlfied .mllil IIlld.t,eguliIl'm1li1 at her~as1 ~adQress ,. -". . ;,.

.

_: _._c_ ..

.

":0- .- . -.

. ......., . . ....

. :". ...... "

ali: i~dic~ln tbe~rllficateor:1liSf known address.

MoV!lnt Ims notif«!d netenifartt of its intention to withdtaw~m tJli~ CI!$\l and has inf'lfl!1~ Pefen&l)tbrfietriglitto !:ibje<tlO Ibis motion.

8. a~.¢n infonn!\til:ln .and belie'.D~ndant objectHo tl!is motion.

31t

"

11.

•

Arguments & AutllQrities

I

~. Movalltsellks to' witbdraw pmuant to Texas Rule.,'OfCiv'i\ Proo:dUre' t'/). Specifically, ihe.re Is good ~se fot witliilra.walb~se, jlte Defendant haHub'Sta!1jlatlytllited tQ fulfill an ofjligatibn 10 Hall and bas been ~ven re8Soolible warning that Haft will wlthdiitw IInless- the

obli~tlon i~ fulfilled.

WHEREFORE,Movant; HItTI Attorneys"P.C. and. its attorneys ptay the Court grant its

M~iQn tj;) withdmw, relieVe it Itndits attorneys Qf any :further obligations, and for all other relief

itJsjumlyent!tted;

Resp,ectfullysubmitted,

HALLATrollNEYs. p.e.

,£,

3/~

313

• , ~wmf1CATE OF.SERVI¢E

'fIjc undcrsisned certifies that the prClleil}lng Was served on ail ctlun$i)l of rtlQOtd on JIl\lgll.SH 5, 2Ol~ and 011 JlT par:tie~~ia me l1)llI!l1er des!ltibedbelow. '

E1\::WL jeflKelly Kelly Legal Group 4608 S01,lth ~Bh'd. AIlstint Texas 18145

Cl\IRRR ANn:F'Ill&T CLASS MAIL Sfepblllli~J,)e~ 41ulKUgore Lane A:u~itl; Tens 78727

The imdersigned ~etljties mat the las~ kl\QWl1 ~ss for Stephanie DeLeo.,! is 4108 rulgQl'il Lane, A.US!iIl. Texas 18121,

Is/MgrHEif{.f.. IfAQN§R

Mit.ttliew J. WlIgrlcf

NoTICE·OF BEARING

"I~ !ilJi;eml.t;im tHat II bearing: nntlii~ MotiQn has been set Oil August 2g, 2012 at 9:00 aAn. in Travi~Co.un*y Cout1No. l.

/SIMif,rtlg;;wJ.. Tf:.!qfI'ER.

'MlI1tIiew.J. Wcagner

CAUSE NO.. C",1·CV·U-I)Ozt6'7 lQJREALTRON MANAGEMENT l>llrintift .AT LAW HI

S1l1:PHANlE DELEON Dereltliant MOT'lo.N rOR POSSESSION OF PROPERTY AND VN~A1D lU)NT

COlvlES NOW, KBREA,LTIWN MANAGEMENT. by and through its agent Kevin Bierwirth, li:IIdfiles this motion for ttiaJ denovil Seekil)gjudginentagainstElefen4lmt s~~ .PeLeoli for pos~O!l'l)fhis re.nlal PI'()PetiY and unpaid rent <fue;~lalntif£

Defen:dmltleasea ,'. the.~oJlt'rty. the leasc:tll begin.

..', .. ,',' . . .. . . .. oliD=emb~ l7, 2911. iii tbetijllount of . , .,

$12{)o,OO per UlO!lth. wiilia ~ty deposlt of S11o(),()(), Defendant tMlqxlSSJ::ilSiO!l ofthe.propeny on December 17,2011, and tc;l &te has not pald.either JeUfor the security deposit.

Plaintiff fQuDd it netessary to ex:ecute Ii .L!md1otd's Lien in a.n attempt to ubtain rent, howe.ver. Defen<!lmfcllbandoned .the personal propertywbillh was thesubjectoftlie pen.

trefendnt aiJandolledthe 1?ro~erty Without notice sometime ¢let M!ly 1, 2<lJ4'.

PIainti.ffasks the Qolltf to ~ $U),O$M2 in rent. security 4eposit!llld _lWClated .eQsW, !llld attemeYlI fees in fheamo\lnt or$2,s.{jo.~.

R~h Blvd. Ste. 204

Alliltin,Te1>t~78150

I , ST:A:TE OF TEXAS } }SS

TR.AVis COUNTY }

AFFIDAVIT OF BUS:{NESS RECORDS

I, Kevin Bietwirtb, aftllSt that lam M agent for KBREALTRON MANAOOMENT. That 1 Wl\S presetr\ ·when Stepllanle DeLeon signed It lease til tent property at 3305 Spaniel Drive. Austin.: TJ!; 18159;

I ean attest that during her stay in the property, Ms. D¢Leon di\i not pay the ~ty depoSit nOrMY rent what5llever.

(gave Ms. Del-eon notice to pay" !IS .pe~ the lellSe, !lI' I would 1.):e f~d to lllI:C'Cute a Landlord 'sLienandseize personlil property J!1lieu of payment,of !j;!n~; Ms. D¢leon ignored.the Notice, .1 enlered the property arid' fuolcsevera:l items in person;d property, i~udmg II; wasller and.dQ'e; and'three CQmputets.

Ms, 0e1l;on gcYer redeent~ Ule property and refused to abandon the pte!nises.

It w,alI' necelJSllrY forme: tarem a storage unit in whlchto store Ms. DeLeon's personal property, pending herpaymenHlfl'ellt.

Ms. DeJ;;oon. at S~ point, abandoned the property, Without notice ton», tllld atJer kaming, of tJ!e Abandonment, Iblld the prop«typainted. cieaned and fixed to the GPndition.m which: it ·was~ the·tim.e ofMs; DeLeon's octlupancy.

lJeclluse of the diffieu!tles 'caused by Ms. Deleon Md her attorney, it I1l!$ been llecesSarY for me to ;engage thec!re~!les mllli attorneY to attempt 10 evict her lind deal with the ret;di!U~ 1IIl1i01lS Ms. DeLeon wok in order tooc~upy the prQperty tentfi'E!e.

1 am aware !bat KBREALTlWN MANAGEMENT paid $2,500 retainer for attorney &er\7i1!eS to assist in the legalities in which Ms. DeLeon e!lgl\g~.

It was my job tIT ke\lJ1 a.t'Ubllitlg rota! af.the expenses incurred in the 1~ of the~rty anti . . ...."... tp e'l'iet att""'''ts . ' """

"",. DeLeo. n -~ , . . "·e .~ AI", expe""

. ~"""'hed'

'Wr'" '"""" .

to this Affidavit is:true 1Uld C<!\Tellt

,

CERTIFICATE OF SERVICE

1. the Utldersigned. hereby eert:ifYthata true and correct copy ofthealtMbed Motion !or PossessionqfProperty Il.lld Unpaid Rent was sent on MarehZ, 2013 to:

Step~ie "Deleon 4J:Q& Kilgtlre Lane Austin, ~ 78121