ACCEPTED 01-17-00677-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 3/19/2018 11:53 PM Case No. 01-17-00677-CV CHRISTOPHER PRINE CLERK
IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS FIRST COURT OF APPEALS, HOUSTON TEXAS JUDICIAL DISTRICT FILED IN 1st COURT OF APPEALS ___________________________________________________________________________________________________________ HOUSTON, TEXAS Monica Hardaway and Glenn Hardaway, 3/19/2018 11:53:30 PM CHRISTOPHER A. PRINE Appellants Clerk
Vs Deutsche Bank National Trust Company as Trustee in Trust for Registered Holders of Long Beach Mortgage Loan Trust 2006-WL1 Asset-Backed Certificates Series 2006-WL1, and Select Portfolio Servicing, Inc. Appellee.
From the Court at Law No. 4 in Fort Bend County Case 17-CCV-059731 ___________________________________________________________________________________________________________
APPELLANTS’ BRIEF
______________________________________________________________________________
APPELLANTS’ REQUEST FOR ACCELERATION OF BRIEF AND FOR ORAL ARGUMENT
______________________________________________________________________________
Monica and Glenn Hardaway, Pro Se 1303 Azalea Bend, Sugar Land TX 77479 Telephone: (832) 708-5321
0 IDENTITY OF PARTIES AND COUNSEL
APPELLANTS/ COUNSEL: Pro Se Monica Hardaway Monica and Glenn Glenn Hardaway Hardaway 1303 Azalea Bend, Sugar Land TX 77479
APPELLEE COUNSELS: Deutsche Bank National Trust Company Christopher Ferguson as Trustee, In Trust for Registered Holders Codilis & Stawiarski, P.C. of Long Beach Mortgage Loan Trust 650 N. Sam Houston Parkway East 2006-WL1, Asset-Backed Certificates Suite 450 Series 2006 WL1 Houston, TX 77060
Select Portfolio Servicing, Inc. 3217 S. Decker Lake Dr. William Denzel Kee III Salt Lake City, UT84119 19855 Southwest Freeway, Ste 330 Sugar Land TX 77479
1 IDENTITY OF PARTIES
1. Monica Hardaway and Glenn Hardaway (hereinafter Plaintiffs or The Hardaways) are residents of Fort Bend County and at all times relevant to this Petition have owned the Subject Property for 13 years and continue to live in the Subject Property now and at all times relevant to this Petition. The Subject Property is located at 1303 Azalea Bend, Sugar Land, Texas 77479. The Subject Property legal description is:
LOT ONE (1), IN BLOCK (1), OF THE FINAL PLAT OF GREATWOOD FOREST, SECTION THREE (3), AN ADDITION IN FORT BEND COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN SLIDE NO. 1308/B AND 1309/A, OF THE PLAT RECORDS OF FORT BEND COUNTY, TEXAS
The Hardaways request to the Court to take judicial notice of the following about This Defendant
2. Defendant, Deutsche Bank National Trust Company as Trustee in Trust for Registered Holders of Long Beach Mortgage Loan Trust 2006-WL1 Asset-Backed Certificates, Series 2006-WL1, (hereinafter “Defendants” or “DBNTC-LBM2006WL1”) does not have a registered office nor a registered agent. The Hardaways have diligently searched for an address for Defendants and cannot find one. There is no record of Defendants’ business because this entity does not exist. Further research shows that Deutsche Bank National Trust Company as Trustee in Trust for Registered Holders of Long Beach Mortgage Loan Trust 2006-WL1 Asset-Backed Certificates, Series 2006-WL1 was terminated with certification 15(d) Commission No. 333-109318-12 filed on December 29, 2006. The last report on this entity was filed in February 2007 with no reported asset- backed certificates. See www.sec.gov. According to the Treasury Department their prime bank instruments CUSIPS no longer exist and they are not offering asset-backed mortgages. CUSIPS records are found here: www.treasurydirect.gov (Class M-8 CUSIP 542514RB8); (Class M-9 CUSIP 542514RE6); (Class M-10 CUSIP 542514RF3); (Class M-11 CUSIP 542514RG1) and before the IRS as Real estate mortgage investment conduits (REMICs) and collateralized debt obligations (CDOs). Defendants have not reported any asset-backed mortgages since 2007. See www.irs.gov/pub/irs-prior/p938-- 2 2007.pdf page 85. The Trust, Deutsche Bank National Trust Company as Trustee in Trust for Registered Holders of Long Beach Mortgage Loan Trust 2006-WL1 Asset-Backed Certificates, Series 2006-WL1, was voluntarily dissolved. Therefore, Deutsche Bank National Trust cannot act at the Trustee for this Trust and Select Portfolio Servicing, Inc. cannot be a mortgage servicer of a Defunct Trust or a Bank that is no longer a Trustee, because the Trust is defunct.
The Hardaways request to the Court to take judicial notice of the following facts about the apparent servicer Select Portfolio Servicing, Inc.:
On September 4, 2007 Case No. 03-12219-DPW, UNITED STATES OF AMERICA v. SELECT PORTFOLIO SERVTCING, INC. “(formerly Fairbanks Capital Corp.),a Utah corporation, in a FINAL JUDGMENT AND ORDER: that Defendants, and each of them, their officers, employees, agents, representatives, and all other persons or entities in active concert or participation with them who receive actual notice of this Modified Order by personal service or otherwise, directly or through any corporation, subsidiary, division, or other device, are hereby permanently restrained and enjoined, in connection with the servicing of any loan, from”: “Permanently restrained and enjoined, in connection with the servicing of any loan that was in default at the time it was obtained by Defendants, from: A. Using any false, deceptive, or misleading representation or means in connection with the collection of any debt, in violation of Section 807 of the FDCPA, 15 U.S.C. § 1692e, including but not limited to: (1) falsely representing the character, amount, or legal status of a debt, or any services rendered or compensation which may be lawfully received by a debt collector for collection of a debt, in violation of Sections 807(2)(A) and (B) of the FDCPA,15 U.S.C. § I 692e(2)(A) and (B); (2) 2)…shall also include any related loan servicing activity such as the administration of loan accounts, the collection of loan payments, the foreclosure of real property,…
3 REQUEST FOR ORAL ARGUMENT
This case presents a different issue on the handling of an eviction case under Texas law and issues regarding the need to satisfy “due process” requirements. Oral argument is requested to present causes of action against Appellee and others. Appellants are requesting to reverse Appellee’s affirmative judgment of possession and void the writ of possession that is pending, on the basis that the County Court No. 4 had knowledge of a fraudulent deed conveyance. The Hardaways personally informed the judge on two occasions that Appellee’s had no legal standing or interest in the Subject Property, along with the fact that a proper and legal Deed was not in their possession and they had no Note with which to claim an acceleration. There was no default on any loan and no legitimate lender or beneficiary existed with which to execute a “Power of Sale”. Consequently, Appellants were never tenants and are not tenants at sufferance. Therefore, the issuance of a writ of possession is unlawful. All actions described above made the non-judicial foreclosure void, the Promissory Note is now Null and the Deed of Trust unenforceable. All these cumulative actions by Appellee have caused irreparable harm to Appellants. Appellee’s actions continue to cause injury and harm to Appellants as they continue to pursue multiple writs of possession, despite the fact this such actions are unlawful. Appellants have successfully obtained a Temporary Restraining Order from the Fort Bend District preventing the execution of Appellee’s latest unlawful writ of possession issued on March 6, 2018.
4 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................1
IDENTITY OF PARTIES ............................................................................................................... 2 REQUEST FOR ORAL ARGUMENT.........................................................................4
STATEMENT OF JURISDICTION .............................................................................7
STATEMENT OF THE CASE ..................................................................................8
STATEMENT OF THE ISSUES ..................................................................................9
Issue One: Court at Law No. 4 Fort Bend County, Texas did not have Jurisdiction ...................... 9 Issue Two: The Hardaways have been deprived of their Right to Due Process .......................... 10 Issue Three: The Hardaways are not Tenants at Sufferance ........................................................ 10 Issue Four: Writ of Possession lack of legal standing ................................................................... 11 Issue Five: Affidavit of Indigency which included the bond ........................................................ 12 STATEMENT OF FACTS..........................................................................................13
SUMMARY OF ARGUMENT AND AUTHORITY ................................................16
ARGUMENT ..............................................................................................................19
Standard of Review ....................................................................................................................... 19 State of the Evidences ................................................................................................................... 19 CONCLUSION ...........................................................................................................20
PRAYER FOR RELIEF ..............................................................................................21
CERTIFICATE OF SERVICE....................................................................................22
APPENDIX .................................................................................................................22
5 INDEX OF AUTHORITIES
Cases
ICC v. Louisville & N. R. Co., 227 U.S. 88, 93-94 (1913_____________________________________________________16
Durkay v. Madco Oil Co., (Tex. App. – Corpus Christi 1993, writ denied)______________________________________17
Goldberg vs. Kelly, 397 U.S. 254, 90 S.Ct. 1001, 25 L.Ed.2d 287 (1970 ________________________________________16
Greene v. McElroy, 360 U.S. (1959) ___________________________________________________________________16
Latimer v. Smithkline & French Lab., (5th Cir. 1990). _____________________________________________________10
Little v. Liquid Air Corp., (5th Cir. 1994) ________________________________________________________________10
Mills v. Haggard, (Tex. App. – Waco 2001, no writ) ______________________________________________________17
Mitchell v. Armstrong, (Tex. App. -- Houston [1st Dist.] 1995, writ denied) ____________________________________9
Nixon v. Mr. Property Management Co., Inc ____________________________________________________________18
Rayos v. Chrysler Credit Corp., (Tex.App.--E1 Paso 1985, no writ).___________________________________________18
Rice v. Pinney, (Tex. App.—Dallas 2001, no pet.); ________________________________________________________15
Tex. Prop. Code § 51.002 ____________________________________________________________________________9
Willner v. Committee on Character & Fitness, 373 U.S. ___________________________________________________16
Regulations
Tex. R. Civ P. §510.3(e) _____________________________________________________________________________9
Tex. R. Civ. P. 746 __________________________________________________________________________________9
TEX.PROP.CODE § 24.004(a) _________________________________________________________________________9
TEX.PROP.CODE §12.0012 __________________________________________________________________________11
TEX.PROP.CODE ANN. § 24.002(a) ___________________________________________________________________15
Texas Property Code §24.001-.011. Rule 510.8(d)(1) _____________________________________________________17
Texas Rules of Civil Procedure §510.8(d)(1) and §510.8(d)(2) ______________________________________________11
FEDERAL ORDERS
FDCPA,15 U.S.C. § I 692e(2)(A) and (B); (2) 2)… __________________________________________________________3
6 STATEMENT OF JURISDICTION
Jurisdiction of this Court is invoked under the Government Code Title 2, Judicial
Branch Subtitle” A”. Chapter 22. Subchapter “C” Courts of Appeals. Section 22.201
(b), and Jurisdiction of this Court is invoked under Section 1291 Title 28, United
States Code as an appeal from a final judgment from the County Court at law No. 4.
Notice of appeal was timely filed in accordance with Rule 4(b) of the Federal Rules of
Appellate Procedure.
7 STATEMENT OF THE CASE
Appellees used a non-judicial process and made demands for an eviction against Appellants. However,
the Fort Bend County Justice of the Peace Precinct 1, denied Appellee’s (hereinafter Appellee or
DBNBTC-LBMLT-2006WL1) and ruled in favor of The Hardaways with a judgment of possession of the
Subject Property (Appendix # 4). Appellees then appealed to the County Court at Law No. 4 of Fort
Bend County, Texas. There was no claim filed by Appellees. Instead, Appellees improperly filed a
Motion for Final Summary Judgment. The Hardaways responded and also filed a Cross-Motion
Objecting to and Denying each point of Appellee’s Summary Judgment alleging “Appellees committed
fraud, had no legal standing, had no interest in the property and alleged that Appellee’s had a forged
Substitute Trustee’s Deed as their only evidence.” After the hearing, The County Court at Law No. 4
entered a Summary Judgment in favor of Appellee. Consequentially, The Hardaways appealed to this
Court.
8 STATEMENT OF THE ISSUES Issue One: Court at Law No. 4 Fort Bend County, Texas did not have Jurisdiction
In the Tex. R. Civ. P. §510.3(e) the merits of the title shall not be adjudicated” in Justice Courts or County
Courts, in the Tex. R. Civ. P. 746., notwithstanding this general rule, if the question of title is intertwined
with the issue of possession, then possession may not be adjudicated without first determining title. In
such a case involving a genuine issue of title, the Judge at County Court at Law No. 4 at Fort Bend
County, TX knew that title was involved in this case according to TEX.PROP.CODE § 24.004(a) This
court had a sworn statement alleging the suit is based on a deed executed in violation of the law ( DK 7-
2017). In addition, the County Court at Law No. 4 on appeal de novo had no jurisdiction. Mitchell v.
Armstrong, 911 S.W.2d 169 (Tex. App. -- Houston [1st Dist.] 1995, writ denied).. Tex. Prop. Code §
51.002. and §12.0012 . DBNBTC-LBMLT-2006WL1 did not comply with the above Sections of the
Texas Property Code. Appellee failures prevented the probate court from acquiring jurisdiction over both
the probate matter and the subject property and void the foreclosure sale and the Substitute Trustee's
Deed. The failure to comply with this Texas Property Code provision prevented the County Court at Law
No. 4 from obtaining jurisdiction over the Hardaways or its property and deprived The Hardaways of their
right to due process. DBNBTC-LBMLT-2006WL1/Appellee conspired among themselves, failed to
comply, and failed to insist on compliance with the referenced Texas Property Code provisions governing
sale of real property under a Deed of Trust which failure was the proximate cause of substantial damages
to The Hardaways, deprived them of due process, and makes the purported non-judicial foreclosure sale
void ab initio; nonetheless, DBNBTC-LBMLT-2006WL1 and its agents have compounded the harm and
damage to The Hardaways by continuing its wrongful efforts to evict them from their property.
9 Issue Two: The Hardaways have been deprived of their Right to Due Process
The trial County Court at Law No. 4 in Fort Bend County, Texas erred in its judgment. First of all (1)
Appellants made 3 requests for a jury trial and paid the fees, but no jury trial was conducted since
Appellees made a motion for Summary Judgment to avoid a jury trial. (2) The court knew about the illicit
conveyance of The Hardaways’ Deed yet ignored the Hardaways’ objections despite plenty of evidence
refuting the Appellee’s motion for final summary judgment, where the non-movant bears the burden of
proof at trial, the summary judgment movant need not support its motion with evidence negating the non-
movant’s case. Latimer v. Smithkline & French Lab., 919 F.2d 301, 303 (5th Cir. 1990). Rather, the
movant may satisfy its burden by pointing to the absence of evidence to support the non-movant’s case.
Id.; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). At the hearing, The Hardaways
presented evidence from the United States Securities and Exchange Commission including officially
sealed documents, and also from the actual Fort Bend County Texas Property Records. Appellee falsely
claimed on record that all the Hardaway evidence was irrelevant and hearsay. In addition, the Judge
unfairly sustained all Appellee objections and overruling all the Hardaways’ objections showing a clear
bias in favor of Appellees. (3) During this Summary Judgement hearing of August 8, 2017, the
Hardaways were instructed by the Judge to remain silent during the presentation by Appellee and
that the Court would place on record that the Hardaways were objecting to everything. This
instruction by the Judge showed a deficiency of due process for the Hardaways. The Trial Court
erred in refusing to read or take into deliberation the Hardaway's motion for their defense. See (DK
07/20/2017)
Issue Three: The Hardaways are not Tenants at Sufferance
This forcible detainer action by Appellees DID NOT originate with any Court. Appellees used an
unlawful and fraudulent conveyance of a Deed to begin a legal battle as the “new owners” of the Subject 10 Property. This brought fraud upon the Court. Neither the Fort Bend County Court at Law No. 4 nor the
United States Bankruptcy Courts had jurisdiction in this Deed issue regarding the Subject Property.
Appellees have never proven their legal claim to be able to foreclose on the Subject Property, and no
evidence has been presented as proof in any court proceedings to date. Appellees have been confusing
judges and manipulating the court system filing fraudulent documents violating Texas laws, and abusing
the non-judicial foreclosure process. See TEX.PROP. CODE §12.0012. The Hardaways have been denied
their right of legal due process and justice. Appellees’ attorneys have been hiding behind the name of a
Trust that is defunct during this entire fraudulent process being perpetuated in the Court system.
This Appeal Court should confirm that there has been absolutely no evidence from existing records
showing an assignment on the Deed with the name of Deutsche Bank National Trust Company as Trustee,
as Trustee of Long Beach Mortgage Trust 2006-WL1 (Appellee omitted the word LOAN between
Mortgage and Trust). There is no evidence of a licit transfer of the promissory note to the Appellee. There
is no evidence of a default on any loan made between Appellee and the Hardaways. There is no evidence
of the Power of Attorney for assignment of a New Substitute Trustee as is clearly is stated in paragraph 23
of the Deed (Appendix # 2). There never existed a conveyance or Trustee Sale from Deutsche Bank
National Trust Company as Trustee, as Trustee of Long Beach Mortgage Trust 2006-WL1 (they omitted
the word LOAN between Mortgage and Trust), TO the Deutsche Bank National Trust Company as
Trustee, In Trust for Registered Holders of Long Beach Mortgage Loan Trust 2006-WL1, Asset-Backed
Certificates, Series 2006-WL1.
There never existed the authorization or standing to execute the “Power of Sale’, therefore the Hardaways
never became tenants at sufferance.
Issue Four: Writ of Possession lack of legal standing Texas Rules of Civil Procedure §510.8(d)(1) and §510.8(d)(2) provides that a writ of possession may not
be legally issued and may not be executed after the 90th day after a judgment for possession is signed
11 “more than 60 days after a judgment for possession is signed” or, for good cause, not more than “90 days
after a judgment for possession is signed.” Here, the writ of possession was issued more than 90 days
after judgment for possession was signed. As a result, the issued writ was void and the trial court erred
when it ordered its enforcement. See also Section 24.0053, Texas Property Code. A writ of
possession cannot be issued more than 60 days after a judgment for possession is signed, and a writ of
possession cannot be executed after the 90th day after a judgment for possession is signed. See also Texas
Rules of Civil Procedure Rule 510.8. There is no motion for new trial in an eviction proceeding
Issue Five: Affidavit of Indigency which included the bond
The Hardaways filed the affidavit of indigency on August 20, 2017 with the petition for appeal. This also
includes the bond. When there is a bond a writ of possession cannot be issued. Therefore, a writ of
possession should not have been granted to Appellees.
12 STATEMENT OF FACTS
The Case No. 17-CCV-059731 was appealed by the Appellants from a dispute over the attempt to take
possession of The Hardaways’ residential property located at 1303 Azalea Bend, Sugar Land, Texas
77479. The legal description is as follows:
LOT ONE (1), IN BLOCK (1), OF THE FINAL PLAT OF GREATWOOD FOREST, SECTION THREE (3), AN ADDITION IN FORT BEND COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN SLIDE NO. 1308/B AND 1309/A, OF THE PLAT RECORDS OF FORT BEND COUNTY, TEXAS (the “Property”).
On August 04, 2005, The Hardaways made a first-lien Note to LONG BEACH MORTGAGE
COMPANY, A CORPORATION, for the original principal amount of $300,000.00 (the “Note”). To
secure payment of the Note, Appellants executed a first-lien Deed of Trust for the benefit of LONG
BEACH MORTGAGE COMPANY, A CORPORATION (the “Deed of Trust”) which describes the
Property and shows MICHEAL L. RIDDLE as Substitute Trustee. (Appendix # 2)
On December 3, 2014 JP Morgan Chase Bank National Association filed Assignment of
ownership on Deed. There are no other assignments of ownership or change of Trustees. (Appendix #1)
and (Appendix # 3)
On or about January 3, 2017, Appellees, acting through a purported Substitute Trustee,
purportedly conducted a non-judicial foreclosure sale of the Property, using a Substitute Trustee’s Deed
purported to convey the Property to Appellees. The sale was stopped at the auction and canceled.
On or about January 7, 2017, Appellees, purporting to be the legitimate successors as Deutsche
Bank National Trust Company, as Trustee, In Trust for Registered Holders of Long Beach Mortgage Loan
Trust 2006-WL1, Asset-Backed Certificates, Series 2006-WL1, purported to conduct a non-judicial
foreclosure sale of “the Property” through a Substitute Trustee. Appellees claim to have purchased the
Property at the Trustee’s sale, and Appellees claim to be the owners of “the Property” in defiance of The 13 Hardaway’s rights to the Property.
On March 23, 2017, Appellees used the Substitute Trustee’s Deed in claiming to be owners of
“the Property” and filed a forcible detainer action. However, the Fort Bend County Justice of the Peace
Court awarded “the Hardaways” possession of “the Property” in a final judgment. (Appendix #4)
On April 11, 2017 Appellees appealed this ruling to the Fort Bend County Court at Law No. 4, the
“forcible detainer action”.
On August 8, 2017, Appellees were granted their Motion for eviction with a Summary Judgment
and granted a Writ of Possession. A bond was set at $39,500.00.
On August 11, 2017, Appellants filed a Motion for New Trial. This motion was denied on August
26, 2017.
On August 18, 2017, Glenn Hardaway filed Bankruptcy Chapter 7, to protect his home. The
automatic stay was lifted on January 8, 2018 for lack of jurisdiction.
On August 25, 2017, the Appellants filed a Notice of appeal. This case began in the Court of
Appeals.
On September 05, 2017, Appellees requested their first Writ of Possession. This writ was returned
unserved on September 25, 2017.
On January 26, 2018, Appellants requested to this Court to stay any Writ of possession. This
motion was denied on January 29, 2018.
On January 26, 2018, Appellees requested a second Writ of Possession. This second Writ of
Possession was returned unserved on February 01, 2018.
On January 28, 2018, Monica Hardaway filed Bankruptcy Chapter 7 to protect her home. On
February 20, 2018, the automatic stay was lifted for lack of jurisdiction.
On March 06, 2018, Appellees requested a third Writ of Possession.
This Writ is currently under a TEMPORARY RESTRAINING ORDER from the Fort Bend
County District Court. 14 On March 19, 2018, The Hardaways filed suit against Appellees for Wrongful Foreclosure in
District Court, 434TH Judicial District, Fort Bend County, Texas, Cause No. 18-DCV-249402.
15 SUMMARY OF ARGUMENT AND AUTHORITY
1. The Fort Bend County Court at Law No. 4 did not have jurisdiction to award possession of “the
Property” because of the pendency of this lawsuit. The Hardaways recognize that in a case of Forcible
detainer it is a procedure to determine the right to immediate possession of real property if there was
no unlawful entry. See Rice v. Pinney, (Tex. App.—Dallas 2001, no pet.); see also TEX.PROP.CODE
ANN. § 24.002(a) (West 2014, forcible detainer under Texas Property Code Sections 24.001 –
24.008, the only issue shall be the right to actual possession. The governing procedural rule provides
that “the court must adjudicate the right to actual possession and not title.” At this point, the
Hardaways had a judgment of possession that made them the rightful parties to actual possession and
not title. The Hardaways objected to the forged Substitute Trustee’s Deed that Appellee had entered
as evidence in the Fort Bend County Court at Law No. 4. The Hardaways never became tenants at
sufferance as Appellees have attempted to claim. The Hardaways were the rightful owners in
possession of “the Property” as evidenced by the judgment from the Fort Bend County Justice of the
Peace Court. There was never any conveyance of the Deed by the Hardaways to the Appellees.
Before the non-judicial foreclosure there was not one single document on the Deed filed at Fort Bend
County Court that shows the Hardaways as being tenants as Appellees wrongfully claimed.
What is at issue in this case is the absence of authority of Deutsche Bank National Trust
Company as Trustee of Long Beach Mortgage Trust 2006-WL1 to direct its Substitute Trustee to sell
the Appellants' home at a foreclosure sale to Deutsche Bank National Trust Company as Trustee in
Trust for Registered Holders of Long Beach Mortgage Loan Trust 2006-WL1, Asset-Backed
Certificates Series 2006-WL1. That authority is the basis for the Appellee claiming it is entitled to
evict the Hardaways’ from their home. The Trial Court, even in a summary judgment proceeding,
must require the Appellee to establish that it has lawfully acquired a greater right of possession in
16 order for the court to evict them from their home. Appellee made no such attempt in this case. Their
only argument was that Deutsche Bank National Trust Company as Trustee of Long Beach Mortgage
Trust 2006-WL1 gave rights to Deutsche Bank National Trust Company, as Trustee, in Trust for
Registered Holders of Long Beach Mortgage Loan Trust 2006-WL1 Asset-Backed Certificates Series
2006-WL1 to sell the property to themselves. On that basis, they claimed the right to take possession
of the Hardaways' home. There are key material facts to be established in this process. Appellees
made no attempt to establish them and obtained a summary judgment anyway.
In Goldberg vs. Kelly, 397 U.S. 254, 90 S.Ct. 1001, 25 L.Ed.2d 287 “(1970 the US Supreme Court)
emphasized the importance of these due process rights, even in non-judicial proceedings.
In almost every setting where important decisions turn on questions of fact, due process requires an
opportunity to confront and cross-examine adverse witnesses. See., ICC v. Louisville & N. R. Co., 227
U.S. 88, 93-94 (1913; Willner v. Committee on Character & Fitness, 373 U.S. 96, 103-104 (1963).
What we said in Greene v. McElroy, 360 U.S. 474, 496-497 (1959), is particularly pertinent here:
Certain principles have remained relatively immutable in our jurisprudence. One of these is that,
where governmental action seriously injures an individual, and the reasonableness of the action
depends on fact findings, the evidence used to prove the Government's case must be disclosed to the
individual so that he has an opportunity to show that it is untrue. While this is important in the case of
documentary evidence, it is even more important where the evidence consists of the testimony of
individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by
malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the
requirements of confrontation and cross-examination. They have ancient roots. They find expression
in the Sixth Amendment... This Court has been zealous to protect these rights from erosion. It has
spoken out not only in criminal cases, ... but also in all types of cases where administrative... actions
were under scrutiny.”
17 2. The issues of title and possession are intertwined in this case because of the allegations of this case. If
the Hardaways prevail in this case, the title to the Property is established. The Hardaways had and will
continue to have the right to possession of the property. See Mills v. Haggard, (Tex. App. – Waco
2001, no writ); Durkay v. Madco Oil Co., (Tex. App. – Corpus Christi 1993, writ denied).
3. The law is clear regarding the Appellee’s deadlines for issuance and execution of writs of possession.
Texas Rule of Civil Procedure 510.8 requires that a writ of possession be issued within sixty (60) days
of the judgment and be enforced within ninety (90) days. Here, the Hardaways are presenting facts to
support their request in this matter.
4. As acknowledged by the Hardaways, this process is governed exclusively by the Texas Rules of Civil
Procedure 510 and the Texas Property Code §24.001-.011. Rule 510.8(d)(1) provides that a writ of
possession may not be legally issued “more than 60 days after a judgment for possession is signed” or,
for good cause, not more than “90 days after a judgment for possession is signed.” In essence, Rule
510.8 provides an additional thirty (30) days during which a writ of possession may be issued if good
cause is shown. However, that thirty-day extension for good cause also acts as a statute of repose. In
other words, although a party may show good cause why a justice court should issue a writ of
possession outside the 60-day limit after the judgment for possession is signed, in no event shall a
justice court issue a writ of possession more than 90 days after a judgment for possession is signed.
5. Appellees made a second request for another Writ of Possession, clearly over 210 days from the
signed judgment of August 8, 2017. Appellees also failed to present facts to support their request for
a second Writ of Possession. The Fort Bend County Court at Law No. 4 is obligated to request facts to
support a new Writ of Possession, following a failed execution of the first Writ of Possession. This
court erred in issuing a second Writ of Possession. Additionally, Appellees cannot dispute that this is
an error that needs to be reverted, as stated above; the law is clear regarding the deadlines for issuance 18 and execution of writs of possession. Texas Rule of Civil Procedure 510.8 requires that a writ of
possession be issued within sixty (60) days of the judgment and be enforced within ninety (90) days.
Here, neither occurred. Appellants are presumed to be aware of such deadlines. Appellees also failed
to present facts to support their new application for a writ of possession after the time limitation for
the issuance of the March 02, 2018 writ of possession. Therefore, the Fort Bend County Court at
Law No. 4’s judgment should be reversed and rendered void.
ARGUMENT Standard of Review The Court, in Wyatt vs. Furr's Supermarkets, among numerous other cases, has briefly stated the standard
of review for the granting of a summary judgment by a trial court:
In reviewing a summary judgment on appeal, this Court must determine whether the successful movant in
the trial court carried its burden of showing that there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., Inc., In deciding
whether or not there is a disputed fact issue precluding summary judgment, evidence favorable to the
non-movant is to be taken as true, and in the connection, every reasonable inference must be indulged in
favor of the non-movant and any doubts resolved in his favor. If the movant submits summary judgment
invalidating at least one element of the non-movant's case, then summary judgment should be granted.
Rayos v. Chrysler Credit Corp., (Tex.App.--E1 Paso 1985, no writ).
State of the Evidences The main point is that the Appellees filed a copy of the Deed of Trust and the Trustee's Foreclosure
Deed. The Deed of Trust identifies Michael L. Riddle as the Trustee and Long Beach Mortgage
Company A. Corporation as the beneficiary or mortgagee of the Deed of Trust. The Trustee's
Foreclosure Deed names Long Beach Mortgage Company A. Corporation and Michael L. Riddle., as
the current holder of the mortgage and there is no nominee assigned to act as Substitute Trustee. There
19 is no summary judgment evidence indicating that ownership of the promissory note has passed from
Long Beach Mortgage Company A. Corporation and Michael L. Riddle, to Deutsche Bank National
Trust Company as Trustee of Long Beach Mortgage Trust 2006-WL1. The Trustee's Foreclosure Deed
is an instrument of conveyance and is admissible as such. It is not an affidavit. It contains an
acknowledgment, not verification. It is evidence of the transaction, but it is not evidence of the truth of
the statement that Deutsche Bank National Trust Company as Trustee of Long Beach Mortgage Trust
2006-WL1 was really the current holder of the promissory note or the beneficiary of the Hardaways’
Deed. This entity is not registered on the Chain of Title with the name of the Appellee (Appendix # 1).
One could infer such, but it is not evidence that it is true. Neither Jeff Leva nor Sandy Desigenis had
been designated by Long Beach Mortgage Company A. Corporation and/or Michael L. Riddle and/or
by JPMorgan Chase National Bank, (Appendix #3) to act as Substitute Trustee. This too was not
proven by Appellees and is simply an unverified assertion of authority. The Trial Court failed to
follow the rules regarding summary judgment. This Court has clearly stated that “every reasonable
inference must be indulged in favor of the non-movant and any doubts resolved in his favor.” Instead,
the Trial Court gave the Appellee every possible inference.
CONCLUSION
Because the Fort Bend County Court at Law No. 4 erred in its judgment of possession to the Appellee and
ordered enforcement of a Writ of Possession when there was no legal standing or jurisdiction to do so,
Appellants Monica Hardaway and Glenn Hardaway respectfully request to this Honorable Court to grant
declaratory relief. Appellants request to reverse Appellee’s affirmative judgment for summary judgment
of possession. The County Court No. 4 had knowledge of the fraudulent deed conveyance as Appellants
personally informed the judge twice that Appellees had no legal standing or interest in the Subject
20 Property and that there was no assignment on the Deed and no transfer of the promissory note with which
to claim acceleration. There was no notification of default, and there was no legitimate lender or
beneficiary to execute a “Power of Sale”. Consequently, Appellants were never and are not tenants at
sufferance. Therefore, the issuance of the writ of possession is unlawful. All actions described above
make the non-judicial foreclosure void, the Promissory Note is now Null and the Deed of Trust
unenforceable. All these cumulative actions from Appellee have caused Appellants irreparable harm,
caused injury, and continue to cause injury to Appellants.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, The Hardaways respectfully request this Court to reverse
the trial court’s affirmative judgment for possession given to Appellees for Case No. 17-CCV-059731 at
County Court at Law No. 4 in Fort Bend County, with prejudice and res judicata and render judgment to
void the unlawful March 6, 2018 Writ of Possession. The Hardaways further request that this Court issue
a Temporary Restraining Order preventing Appellees from seeking or obtaining or executing any Writ of
Possession until the Fort Bend County District Court decides adjudication of Title, Cause No. 18-DCV-
249402. The Hardaways also request such other and further relief to which they show themselves to be
justly entitled.
Respectfully Submitted,
/s/ Monica Hardaway and /s/ Glenn Hardaway Monica Hardaway and Glenn Hardaway 1303 Azalea Bend Sugar Land, TX 77479
21 CERTIFICATE OF SERVICE
As required by Texas Rules of Appellate Procedure 6.3 and 9.5(b), (d), (e), Monica Hardaway and Glenn Hardaway certify that we have served this document by mail and/or electronically on all parties which are listed below on March 16, 2018 as follows:
William Denzel Kee III Jack O’Boyle & Associates 19855 Southwest Freeway, Ste 330 Christopher Ferguson Sugar Land TX 77479 PO Box 815369 Dallas TX 75381
/s/ Monica Hardaway and /s/ Glenn Hardaway Monica Hardaway and Glenn Hardaway 1303 Azalea Bend Sugar Land, TX 77479 832-708-5321
APPENDIX
1. Chain of Title for 1303 Azalea Bend, Sugar Land TX 77479
2. Hardaway’s Deed of Trust
3. Assignment on Deed of Trust by JPMorgan Chase National Bank
4. Judgment of trial court Justice of the Peace Precinct 1 Place 2 in favor of Monica Hardaway and Glenn Hardaway awarding them possession of their property dated March 23, 2017