Kevin Tower v. Bank of America, N.A.

Opinion

ACCEPTED 03-14-00404-CV 4472830 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/12/2015 11:50:38 AM JEFFREY D. KYLE CLERK No. 03-14-00404-CV

In the Third Court of Appeals FILED IN Austin, Texas 3rd COURT OF APPEALS AUSTIN, TEXAS 3/12/2015 11:50:38 AM JEFFREY D. KYLE Clerk KEVIN TOWER AND KARRIE LYNN TOWER Appellants, V. BANK OF AMERICA, N.A. Appellee.

ON APPEAL FROM THE COUNTY COURT AT LAW, HAYS COUNTY, TEXAS CAUSE NO. 13-0320-C

APPELLEE’S BRIEF

Jonathan M. Williams jwilliams@mlg-defaultlaw.com State Bar No. 00791932 MARINOSCI & BAXTER MARINOSCI LAW GROUP, P.C. 14643 Dallas Parkway, Suite 750 Dallas, Texas 75245 Phone: (972) 331-2100 Fax: (972) 331-5240

ATTORNEYS FOR APPELLEE BANK OF AMERICA, N.A.

ORAL ARGUMENT NOT REQUESTED

BRIEF OF APPELLEE PAGE 1 CERTIFICATE OF INTERESTED PARTIES

Plaintiff (Appellee):

BANK OF AMERICA, N.A. (BANA)

Attorneys for Plaintiff (Appellee) in trial court and on appeal:

Jonathan M. Williams jwilliams@mlg-defaultlaw.com State Bar No. 00791932 MARINOSCI & BAXTER MARINOSCI LAW GROUP, P.C. 14643 Dallas Parkway, Suite 750 Dallas, Texas 75245 Phone: (972) 331-2100 Fax: (972) 331-5240

ATTORNEYS FOR APPELLEE BANK OF AMERICA, N.A

Defendants (Appellants) and Pro Se Representative:

Kevin Tower and Karrie Lynn Tower 541 Bayou Bend, Buda, Texas 78610 Phone: (512) 762-5639

Trial Court:

The Honorable Linda A. Rodriguez County Court at Law Number Two Hays County, Texas 712 South Stagecoach Trail, Ste. 2292 San Marcos, TX 78666

BRIEF OF APPELLEE PAGE 2 STATEMENT REGARDING ORAL ARGUMENT

Appellee does not believe that oral argument is necessary in this appeal;

however, should Appellants request, or should the Court require an oral

argument, Appellee would request the opportunity to present an argument.

BRIEF OF APPELLEE PAGE 3 TABLE OF CONTENTS

Certificate of Interested Parties ................................................................................. 2

Statement Regarding Oral Argument ........................................................................ 3

Table of Contents ...................................................................................................... 4

Index of Authorities ..................................................................................................6

Statement of the Case ................................................................................................ 7

Statement of Facts and Background.......................................................................... 7

Factual Background. ................................................................................................. 7

Procedural Background .............................................................................................. 9

Summary of the Argument ......................................................................................... 9

Argument and Authorities ………………………………………………………...11

Appellants’ Issue No. 1:

THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE BUSINESS RECORDS AFFIDAVIT WITH THE DEED OF TRUST AND SUBSTITUTE TRUSTEE’S DEED INTO EVIDENCE DESPITE BEING IN VIOLATION OF THE TEXAS RULES OF EVIDENCE 902(2) AND 902(10)……..……………………………………………………….11

Appellee’s Response to Issue No. 1:

APPELLANT’S ISSUE NO. 1 MUST FAIL AS ALLOWING THE BUSINESS RECORDS AFFIDAVIT WITH THE DEED OF TRUST AND SUBSTITUTE TRUSTEE’S DEED INTO EVIDENCE WAS NOT AN ABUSE OF DISCRETION AS THE BUSINESS RECORDS AFFIDAVIT DOES NOT VIOLATE THE TEXAS RULES OF EVIDENCE 902 (2) AND 902(10) ………………..…………………….……………………….. 11

Appellant’s Issue No. 2:

BRIEF OF APPELLEE PAGE 4 THE TRIAL COURT ERRED IN ISSUING AN IMPROPER JUDGMENT AND PREVENTED APPELLANT FROM PROPERLY PRESENTING ITS APPEAL ............................... ………………..………………………….. 13

Appellee’s Response to Issue No. 2:

THE TRIAL COURT DID PROPERLY ISSUED JUDGMENT AFTER PRESENTING OF ARGUMENT OF COUNSEL AND REVIEW OF THE EVIDENCE PRESENTED .. ………………..………………………….. 14

Conclusion and Prayer ........................................................................................... 14

Certificate of Service .............................................................................................. 16

Appendix ................................................................................................................ 17

BRIEF OF APPELLEE PAGE 5 INDEX OF AUTHORITIES Case Law:

Roper v. CitiMortgage, Inc., No. 03-11-00887-CV, Mem. Op. (Tex.App.−Austin, Nov. 26, 2013) ……………………………………………………………..12, 13

In re E.A.K, 192 S.W.3d 133,142 (Tex. App.−Houston [14th Dist.] 2006, pet. denied) ……………………………………………………………………….....13

Rodriquez v. CitiMortgage, Inc., 03-10-00093-CV, 2011 WL 182122 (Tex.App.−Austin, Jan. 6, 2011, not pet.)………………………………………………………………...…………...13

Rockwall Commons Assocs., Ltd. v. MRC Mortg. Grantor Trust I, 331 S.W.3d 500, 511 (Tex.App.−El Paso 201, no pet.)…………………………………………..……………………………….....13

Codes and Statutes

Tex. R. Evid. 902(2)…………………………………………………10, 11, 12, 13

Tex. R. Evid. 902(10)………….…………………………………………10, 11, 13

Tex. R. Evid. 902(8)………………………..……………………………..…10, 13

BRIEF OF APPELLEE PAGE 6 BRIEF OF APPELLEE

TO THE HONORABLE JUSTICES OF THIS COURT:

COMES NOW Appellee, BANK OF AMERICA, N.A., hereinafter referred

to as “BANA”, and hereby submits its brief in the above styled and numbered

appeal. In support thereof, BANA respectfully shows the following:

STATEMENT OF THE CASE

Nature of the Case:

This is a forcible detainer suit.

The Honorable Linda A. Rodriguez, Hays County Court at Law Number

Two (2) of Hays County, Texas.

Trial Court's Disposition:

A non-jury eviction trial was set April 11, 2014. The Trial Court heard

and considered evidence and testimony presented by BANA as well as

Appellant’s testimony and exhibits and subsequently awarded possession of the

property located at 541 Bayou Bend, Buda, Texas 78610 (the "Property") to

BANA. (C.R. Pgs. 240-241). Defendants appealed.

STATEMENT OF FACTS AND BACKGROUND

Factual Background:

1. On February 29, 2008, Kevin Allen Tower and Karrie Lynn Tower

BRIEF OF APPELLEE PAGE 7 (“Appellants”) executed a Deed of Trust granting Mortgage Electronic

Registration Systems, Inc., as Nominee for Standard Pacific Mortgage, Inc., a

Delaware Corporation a first lien security interest in the Property (the "Deed of

Trust"). (C.R.., EX. A-1, Pgs. 141-149).

2. The Deed of Trust, Section 18, provided that:

If the Property is sold pursuant to this section 22, Borrower or any person holding possession of the Property through Borrower shall immediately surrender possession of the Property to the purchaser at that sale. If possession is not surrendered, Borrower or such person shall be a tenant at sufferance and may be removed by writ of possession or other court proceeding.

3. On December 2, 2009, the Deed of Trust was assigned to BAC

Home Loans Servicing, LP Formerly Known as Countrywide Home Loans

Servicing, LLC by means of a recorded Assignment of Note and Deed of

Trust.(C.R. Ex. A-2 ., Pgs. 151-153).

4. On September 4, 2012, the Property was sold at a non-judicial

foreclosure sale (the "Foreclosure Sale"). The Grantee on the Substitute

Trustee's Deed was BANA. (C.R. Ex. A-3, Pg. 154-157).

5. On December 28, 2012, BANA provided Appellants, and all other

Occupants, written notice to vacate the Property. (C.R. EX. A-4, Pgs. 158-174).

It is undisputed that the Appellants failed to surrender possession of the

Property.

BRIEF OF APPELLEE PAGE 8 Procedural Background:

6. On January 22, 2013, BANA filed Cause No. F13-002J5 in the

Justice of the Peace, Precinct 5, Hays County, Texas seeking a judgment for

possession. (C.R. Pgs. 8-11). On April 18, 2013 the Justice of the Peace

Court granted possession of the Property to BANA by Default. (C.R. Pg. 27).

7. On April 22, 2013, Appellants filed their appealed and the Appeal

was assigned to County Court at Law Number Two.

8. On April 11, 2014, at trial in County Court at Law Number Two,

BANA presented evidence of the facts set forth in paragraphs 1 through 5

above. BANA presented the evidence by means of a business records affidavit

(C.R. Pgs., 139-141, R.R. Pg. 4). Appellants objected to the entry of the exhibits

attached to the business records affidavit. The trial Court took the matter under

advisement (R.R., Pg. 15).

9. On June 9, 2014, the Trial Court entered judgment granting BANA

possession of the Property. (C.R. Pgs. 240-241).

10. On June 19, 2014, Appellants filed their notice of appeal. (C.R. Pgs. 241-243).

SUMMARY OF THE ARGUMENT 11. Appellant’s issue number on appeal: Did the trial court abused its

discretion by allowing the Business Records Affidavit with the Deed of Trust

and Substitute Trustee's Deed into evidence despite being in violation of Texas

BRIEF OF APPELLEE PAGE 9 Rules of Evidence 902(2) and 902(10)?

12. Appellants assert that the evidence offered by BANA by means

of a business records affidavit was insufficient to prove a proper chain of title and

right to foreclose, the business records affidavit was invalid as the custodian of

the records was not an employee of the entity which created the records and that

the deeds of trust, assignments and substitute trustee deeds are not business

records but are public records that must be entered by stamp or certification

pursuant to Tex. R. Evid. 902(2). Brief of Appellant at 11.

13. BANA responds that the Trial Court did not err in allowing the

business records affidavit into evidence. Appellant’s title claims and issues

regarding BANA’s right to foreclose were ruled upon in favor of BANA by

judgment entered on January 2, 2014. (C.R., Pgs. 219-227). A custodian of

records is not required to be the employee of the creator of the record. A

note, deed of trust or substitute trustee’s deed can be proven up as business

record and may also be self-authenticating as an acknowledged document

pursuant to Tex. R. Evid. 902(8).

14. Appellant’ s issue two on appeal: The trial court erred in issuing an

improper judgment and prevented the Appellant from properly presenting its

appeal. Brief of Appellant at 12.

15. Appellants assert that they were not given a fair opportunity to

BRIEF OF APPELLEE PAGE 10 present evidence of superior right to possession or to disprove the elements of

forcible detainer.

16. BANA responds that all title claims affecting the right to foreclosure

and superior right to possession were ruled upon in favor of BANA by judgment

entered on January 2, 2014. (C.R., Pgs. 219-227). Appellants were provided a

fair opportunity to disprove elements of the forcible detainer. As the record

indicates, Appellants made no offer of evidence, nor was any disallowed by the

Trial Court.

ARGUMENT AND AUTHORITIES

Appellant’s Issue No. 1: THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE BUSINESS RECORDS AFFIDAVIT WITH THE DEED OF TRUST AND SUBSTITUTE TRUSTEE’S DEED INTO EVIDENCE DESPITE BEING IN VIOLATION OF THE TEXAS RULES OF EVIDENCE 902(2) AND 902(10).

BANA’s Response to Issue No. 1: APPELLANT’S ISSUE NO. 1 MUST FAIL AS ALLOWING THE BUSINESS RECORDS AFFIDAVIT WITH THE DEED OF TRUST AND SUBSTITUTE TRUSTEE’S DEED INTO EVIDENCE WAS NOT AN ABUSE OF DISCRETION AS THE BUSINESS RECORDS AFFIDAVIT DOES NOT VIOLATE THE TEXAS RULES OF EVIDENCE 902 (2) AND 902(10).

17. Appellants assert that the evidence offered by BANA by means

of a business records affidavit was insufficient to prove a proper chain of title and

right to foreclose, the business records affidavit was invalid as the custodian of

BRIEF OF APPELLEE PAGE 11 the records was not an employee of the entity which created the records and that

the deeds of trust, assignments and substitute trustee deeds are not business

records but are public records that must be entered by stamp or certification

pursuant to Tex. R. of Evid. 902(2).

18. All issues regarding title and right to foreclose have been

adjudicated in favor of BANA. The Trial Court abated the instant case until

resolution of Cause No. 13-1012 filed in District Court of Hays County, Texas on

May 8, 2013 which was removed to Federal Court as Case No. A-13-CA-500-SS

in the United States District Court for the Western District Texas – Austin

Division. Upon entry of judgment by the United Stated District Court, BANA

filed its motion for to lift abatement of the instant case (C.R., Pgs. 214-218). An

agreed judgment lifting the abatement was entered by the Trial Court on March

11, 2014. (C.R., Pg. 323)

19. Appellants assert the business record affidavit entered into evidence

by BANA is invalid as the custodian of records is not employee of the creator of

the record. The rules of evidence do not require that the qualified witness who

lays the predicate for the admission of business records be their creator, be an

employee of the same company as the creator, or have personal knowledge of the

contents of the record – personal knowledge of the how the documents were

prepared will suffice. Roper v. CitiMortgage, Inc., No. 03-11-00887-CV, mem.

BRIEF OF APPELLEE PAGE 12 op. at 22 (Tex. App.− Austin, Nov., 27, 2013), In re E.A.K, 192 S.W.3d 133,142

(Tex. App.−Houston [14th Dist.] 2006 pet. denied), Rodriguez v. CitiMortgage,

No. 03-10-00093-CV, 2011 WL 182122, at 5 (Tex. App. – Austin, Jan. 6, 2011,

no pet). The custodian of records avers in the business records affidavit that the

custodian has care, custody and control of records regarding the forcible entry and

detainer proceeding against Appellants. Furthermore, the custodian avers that the

custodian is familiar with how the documents were prepared and transmitted to be

included in the record in compliance with Tex. R. Evid. 902(10).

20. Additionally, Appellants assert that the Trial Court erred in allowing

the business record affidavit along with the deed of trust and substitute trustee’s

deeds as they are public records that must be presented as evidence in the form of

certified copies pursuant to Tex. R. Evid. 902(2). Appellant’s assertion is

incorrect in that a notarized document such as a deed of trust or substitute trustee’s

deed is self-authenticating as documents acknowledged by notary public. Roper at

23, Rockwall Commons Assocs. Ltd. v. MRC Mortg. Grantor Trust I, 331 S.W.3d

500, 511 (Tex. App. – El Paso 2010, no pet). As the deed of trust and substitute

trustee’s deed are properly notarized they are self-authenticating and admissible

under Tex. R. Evid. 902(8).

Appellant’s Issue No. 2: THE TRIAL COURT ERRED IN ISSUING AN IMPROPER JUDGMENT AND PREVENTED APPELLANT FROM PROPERLY

BRIEF OF APPELLEE PAGE 13 PRESENTING ITS APPEAL.

BANA’s Response to Issue No. 2: THE TRIAL COURT DID PROPERLY ISSUED JUDGMENT AFTER PRESENTING OF ARGUMENT OF COUNSEL AND REVIEW OF THE EVIDENCE PRESENTED.

21. Appellants assert that they were not given a fair opportunity to

present evidence of superior right to possession or to disprove the elements of

forcible detainer court. As previously stated above, after abatement of the instant

case, all title claims affecting the right to foreclosure and superior right to

possession were ruled upon in favor of BANA by judgment entered on January 2,

2014 (C.R., Pgs. 219-227).

22. Appellants were provided a fair opportunity to disprove all elements

of the forcible detainer as the record does not indicate any offer of evidence by

Appellants nor any disallowed by the Trial Court. Additionally, in their brief,

Appellants do not indicated what evidence would have been offered by Appellants

or that the Trial Court refused a request by Appellants to enter evidence into the

record.

CONCLUSION AND PRAYER

The Trial Court properly issued a judgment and awarded possession of

the property to BANA. BANA therefore respectfully requests that this Court

affirm the County Court’s judgment and render judgment in favor of BANA.

BRIEF OF APPELLEE PAGE 14 Respectfully Submitted,

/s/ Jonathan M. Williams jwilliams@mlg-efaultlaw.com State Bar No. 00791932 MARINOSCI & BAXTER MARINOSCI LAW GROUP, P.C. 14643 Dallas Parkway, Suite 750 Dallas, Texas 75245 Phone: (972) 331-2100 Fax: (972) 331-5240

CERTIFICATE OF COMPLIANCE

Relying on the word court function in the word processing software used to produce this document, I certify that the numbers of words in this brief (excluding any caption, authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, and appendix) is 1,169.

/s/ Jonathan M. Williams Jonathan M. Williams

BRIEF OF APPELLEE PAGE 15 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Brief of Appellee was served via the following method to the following persons on the th 12 day of March 2015.

Kevin Tower Via first class mail and 541 Bayou Bend CMRRR# 9407 1118 9956 2414 3898 87 Buda, Texas 78610

Karrie Lynn Tower Via first class mail and 541 Bayou Bend CMRRR# 9407 1118 9956 2414 3866 40 Buda, Texas 78610

BRIEF OF APPELLEE PAGE 16 No. 03-14-00404-CV

In the Third Court of Appeals Austin, Texas

KEVIN TOWER AND KARRIE LYNN TOWER Appellants, V. BANK OF AMERICA, N.A. Appellee.

ON APPEAL FROM THE COUNTY COURT AT LAW, HAYS COUNTY, TEXAS CAUSE NO. 13-0320-C

APPELLEE’S APPENDIX

Appendices:

Judgment of the Trail Court……………………...………………….…Appendix 1

Judgment of Kevin Tower and Karrie L. Tower v. Bank of America, et al.; Case No. A-13-CA-500-SS; In the United States District Court for the Western District Texas – Austin Division ………………………………………Appendix 2

BRIEF OF APPELLEE PAGE 17