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

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


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


                           APPELLEE’S BRIEF




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

                             ATTORNEYS FOR APPELLEE
                             BANK OF AMERICA, N.A.


                      ORAL ARGUMENT NOT REQUESTED




BRIEF OF APPELLEE                                                   PAGE 1
                    CERTIFICATE OF INTERESTED PARTIES

Plaintiff (Appellee):

      BANK OF AMERICA, N.A. (BANA)

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

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

     ATTORNEYS FOR APPELLEE
     BANK OF AMERICA, N.A

Defendants (Appellants) and Pro Se Representative:

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

Trial Court:

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




BRIEF OF APPELLEE                                                  PAGE 2
                    STATEMENT REGARDING ORAL ARGUMENT

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

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

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




BRIEF OF APPELLEE                                                     PAGE 3
                                         TABLE OF CONTENTS

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

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

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

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

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

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

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

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

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

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

Appellants’ Issue No. 1:

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

Appellee’s Response to Issue No. 1:

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

Appellant’s Issue No. 2:

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

Appellee’s Response to Issue No. 2:

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



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

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

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




BRIEF OF APPELLEE                                                                                             PAGE 5
                          INDEX OF AUTHORITIES
Case Law:

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

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

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

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




Codes and Statutes

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

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

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




BRIEF OF APPELLEE                                                   PAGE 6
                              BRIEF OF APPELLEE

 TO THE HONORABLE JUSTICES OF THIS COURT:

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

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

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

                          STATEMENT OF THE CASE

 Nature of the Case:

       This is a forcible detainer suit.

 Trial Court:

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

 Two (2) of Hays County, Texas.

 Trial Court's Disposition:

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

 and considered evidence and testimony presented by BANA as well as

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

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

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

                     STATEMENT OF FACTS AND BACKGROUND

 Factual Background:

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



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

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

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

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

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

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

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

 Home Loans Servicing, LP Formerly Known as Countrywide Home Loans

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

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

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

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

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

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

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

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

 Property.



BRIEF OF APPELLEE                                                       PAGE 8
 Procedural Background:

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

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

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

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

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

 was assigned to County Court at Law Number Two.

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

improper judgment and prevented the Appellant from properly presenting its

appeal. Brief of Appellant at 12.

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



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

forcible detainer.

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

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

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

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

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

Trial Court.


                           ARGUMENT AND AUTHORITIES

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

       19.     Appellants assert the business record affidavit entered into evidence

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


BRIEF OF APPELLEE                                                           PAGE 13
       PRESENTING ITS APPEAL.

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

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

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

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

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

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

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

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

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

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

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

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

record.

                           CONCLUSION AND PRAYER

       The Trial Court properly issued a judgment and awarded possession of

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

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



BRIEF OF APPELLEE                                                        PAGE 14
                                                  Respectfully Submitted,

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

                                                  ATTORNEYS FOR APPELLEE
                                                  BANK OF AMERICA, N.A.


                              CERTIFICATE OF COMPLIANCE


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

                                                  /s/ Jonathan M. Williams
                                                  Jonathan M. Williams




BRIEF OF APPELLEE                                                            PAGE 15
                                  CERTIFICATE OF SERVICE

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


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

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

                                                   /s/ Jonathan M. Williams
                                                   Jonathan M. Williams




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


                          In the Third Court of Appeals
                                  Austin, Texas


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


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


                         APPELLEE’S APPENDIX



Appendices:

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



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




BRIEF OF APPELLEE                                                   PAGE 17
