                                                                        ACCEPTED
                                                                   01-14-01007-CV
                                                         FIRST COURT OF APPEALS
                                                                 HOUSTON, TEXAS
                                                              3/6/2015 12:54:58 PM
                                                               CHRISTOPHER PRINE
                                                                            CLERK

            No. 01-14-01007-CV

                                                   FILED IN
                                            1st COURT OF APPEALS
       IN THE COURT OF APPEALS                  HOUSTON, TEXAS
                                            3/6/2015 12:54:58 PM
  FOR THE FIRST DISTRICT OF TEXAS           CHRISTOPHER A. PRINE
                                                    Clerk

               AT HOUSTON


       ALLAN R. AVERY, Appellant

                      v.

     LPP MORTGAGE, LTD., Appellee


Appealed from the 127th Judicial District Court

           of Harris County, Texas

 Trial Court Cause Number:        201165958


          APPELLANT’S BRIEF


            Counsel for Appellant:

             Jarett T. LaRochelle
        Texas Bar Number: 24041296
          One Riverway, Suite 1700
            Houston, Texas 77056
           713-907-8668 telephone
           713-840-6351 facsimile
         jarettlarochelle@yahoo.com
Identity of Parties and Counsel

      Appellant certifies that this is a list of all parties to the trial court’s judgment,

and the names, addresses, and telephone numbers of all trial and appellate counsel:

Appellant: ALLAN R. AVERY

      Trial Counsel:

      Jarett T. LaRochelle
      One Riverway, Suite 1700
      Houston, Texas 77056
      713-907-8668 telephone
      713-840-6351 facsimile
      jarettlarochelle@yahoo.com


Appellee:    LPP MORTGAGE, LTD.

      Trial Counsel:

      Victor C. Serafino
      Vincent Lopez Serafino & Jenevein, P.C.
      1601 Elm Street, Suite 4100
      Dallas, Texas 77201
      214-979-7400 telephone
      214-979-7402 facsimile
      cserafino@viololaw.com




                                                                                         2
                                                 Table of Contents

Identity of Parties and Counsel ..................................................................................2
Index of Authorities ...................................................................................................4
Statement of the Case.................................................................................................6
Issues Presented .........................................................................................................6
Statement of Facts ......................................................................................................8
Summary of the Argument.........................................................................................9
Argument....................................................................................................................9
Conclusion ...............................................................................................................26
Prayer .......................................................................................................................27
Certificate of Compliance ........................................................................................28
Certificate of Service ...............................................................................................28




                                                                                                                              3
Index of Authorities

Cases:

801 Nolana, Inc. v. RTC Mtg. Trust, 944 S.W.2d 751, 754           11
     (Tex. App.—Corpus Christi 1997, writ denied)

Alizadeh v. Safeway Stores, Inc., 802 F.2d 111, 113               11
      (5th Cir.1986)

Al-Nayem Int’l Trading, Inc. v. Irving ISD, 159 S.W.3d 762, 764   17
     (Tex.App.—Dallas 2005, no pet.)

Brownlee v. Brownlee, 665 S.W.2d 111, 112                         11
     (Tex. 1984)

City of Houston v. McDonald, 946 S.W.2d 419, 420                  19
       (Tex. App.—Houston [14th Dist.] 1997, writ denied)

El Apple I, Ltd. v. Olivas, 55 Tex. Sup. Ct. J. 954               24, 25
      (Tex. 2012)

First Nat’l Bank in Dallas v. Kinabrew, 589 S.W.2d 137, 145       20
       (Tex.Civ.App—Tyler 1979, writ ref’d n.r.e.)

Gonzales v. Shing Wai Brass and Metal Wares Factory, Ltd.,        11
     190 S.W.3d 742, 746, (Tex.App. - San Antonio 2005, no pet)

Grand Prairie ISD v. Vaughan, 792 S.W.2d 944, 945                 12
     (Tex. 1990)

Humphreys v. Caldwell, 888 S.W.2d 469, 470                        12
    (Tex. 1994)

James v. Hitchcock ISD, 742 S.W.2d 701, 703                       19
     (Tex. App.—Houston [1st Dist.] 1987, writ denied)



                                                                       4
Jones v. Texas Pac Indem. Co., 853 S.W.2d 791, 795                 19
      (Tex.App.—Dallas 1993, no writ)

Latimer v. City Nat'l Bank of Colorado City, 715 S.W.2d 825, 826   11
      (Tex. App. - Eastland 1986, no writ).

Leavings v. Mills, 175 S.W.3d 301, 310                             20, 21
      (Tex.App.—Houston [1st Dist.] 2004, no pet.)

Life Ins. Co. v. Gar-Dal Inc., 570 S.W.2d 378, 381-82              11
       (Tex. 1978)

Mercer v. Daoran Corp., 676 S.W.2d 580, 583                        20
     (Tex. 1984)

Michaels v. Avitech, Inc., 202 F.3d 746, 754-55                    11
     (5th Cir.2000)

Rizkallah v. Conner, 952 S.W.2d 580, 586                           11
      (Tex. App.—Houston [1st Dist.] 1997, no writ)

Ryland Group, Inc. v, Hood, 924 S.W.2d 120, 122                    10, 11
     (Tex.1996)

Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511            19
      (Tex.1995)

Rules:

Rule 803(8) of the Texas Rules of Evidence                         17

Rule 902 of the Texas Rules of Evidence                            17




                                                                        5
Statement of the Case

      Appellant ALLAN R. AVERY, appeals the Final Summary Judgment

entered against it in favor of the Appellee LPP MORTGAGE, LTD., on September

30, 2014, on the breach of contract claim(s) filed by Appellee LPP MORTGAGE,

LTD., on October 31, 2011, in Cause No. 201165958, by the Honorable Judge R.

K. Sandill of the 127th Judicial District Court of Harris County, Texas.


Issues Presented

      1.     Whether the trial court erred in failing to sustain Appellant ALLAN

      R. AVERY’s objections to Appellee LPP MORTGAGE, LTD.’s proffered

      summary judgment evidence;

      2.     Whether the trial court erred in granting final summary judgment in

      favor of Appellee LPP MORTGAGE, LTD., because Appellee’s summary

      judgment evidence is legally and factually insufficient to conclusively

      establish Appellee’s capacity to make claims against Appellant ALLAN R.

      AVERY;

      3.     Whether the evidence is legally and factually insufficient to support

      the trial court’s final summary judgment award of attorney’s fees entered on

      September 30, 2014, in favor of the Appellee LPP MORTGAGE, LTD., and

      against the Appellant ALLAN R. AVERY.; and


                                                                                 6
4.    Whether the trial court erred in awarding damages to the Appellee

LPP MORTGAGE, LTD., because Appellee’s summary judgment evidence

is legally and factually insufficient to conclusively establish Appellee’s

damages.




                                                                         7
Statement of Facts

      On October 31, 2011, the Appellee LPP MORTGAGE, LTD., filed its

Original Petition against the Appellee for breach of contract upon two (2)

promissory note(s) and their accompanying guaranty(ies), under Cause No.

201165958, before the 127th Judicial District Court of Harris County, Texas. On

August 7, 2012, Appellant ALLAN R. AVERY answered by providing a general

denial as well as specific denials and verified defenses as to Appellee’s entitlement

to recover in the capacity in which it sued Appellant.

      On January 15, 2014, the Appellee LPP MORGAGE, LTD., filed its second

amended motion for summary judgment. Appellant ALLAN R. AVERY duly filed

a response on February 21, 2014, objecting to the Appellee’s purported summary

judgment evidence and demonstrating the existence of genuine issues of material

fact that precluded Appellee from being entitled to summary judgment.

      An oral hearing was held on the motion for summary judgment filed by

Appellee LPP MORTGAGE, LTD., on February 27, 2014, before the Honorable

R. K. Sandill, of the 127th Judicial District Court of Harris County, Texas. On

September 30, 2014, the Trial Court entered a Final Summary Judgment in favor of

Appellee LPP MORTGAGE, LTD., and against Appellant ALLAN R. AVERY.




                                                                                   8
Summary of the Argument

      Appellant challenges the Judgment entered against him in favor of Appellee

in Cause No. 201165958, before the 127th Judicial District Court of Harris County,

Texas. Appellant contends that the Final Summary Judgment entered against him

should be set aside and reversed because the trial court erred in failing to sustain

Appellant’s objections to Appellee’s summary judgment evidence.            Appellant

further contends that the evidence is legally and factually insufficient to support

the Final Summary Judgment entered against him in favor of Appellee. And

finally, Appellant contends that the evidence is legally and factually insufficient to

support the damages and attorney’s fees awards contained in the Final Summary

Judgment entered against him.




Argument

I.   The Trial Court erred in failing to sustain Appellant’s objections to

Appellee’s summary judgment evidence.

      Appellant would show that the trial court erred in failing to sustain

Appellant’s objections to Appellee’s summary judgment evidence. The record

shows that Appellant ALLAN R. AVERY duly responded to Appellee’s second

amended motion for summary judgment and, therein, duly made objections to the

Paragraph(s) in Section II of Appellee’s second amended motion and Paragraph(s)

                                                                                    9
2, 4, 6, and 8, of the Affidavit of Tom Martin, attached to Appellee’s motion as

Exhibit “1”, on the basis that such paragraphs contain conclusory statements

unsubstantiated by any corroborating evidence. Appellant identified and objected

to conclusory statements contained in the Paragraph(s) in Section II in Appellee’s

second amended motion refer to the Appellee’s standing in this case, i.e. the

allegation that the “Appellee is the legal owner and holder of the Notes,” that

“Appellee is the legal owner and holder of the Notes,” “the FDIC became the

receiver for New South and that Beal Bank obtained the Notes” and “that the Note

is due and payable to Appellee.” Appellant identified and objected to allegations

made in the Affidavit of Tom Martin including: Paragraph 2, “CLMG Corp. is the

authorized loan servicer for LPP Mortgage Ltd.”; Paragraph 4, “the Office of

Thrift Supervision ordered the closing of New South . . . and the Federal Deposit

Insurance Corporation (“FDIC”) was appointed Receiver for New South”, “the

FDIC as Receiver for New South sold certain assets to Beal Bank”; Paragraph 6,

“LPP Mortgage Ltd. is the legal owner and holder of Note 1”; and Paragraph 8,

“LPP Mortgage Ltd. is the legal owner and holder of Note 2.” All of these

statements of subjective belief, are not supported by any competent summary

judgment proof, are insufficient summary judgment evidence, and the objections to

such statements should have been sustained by the trial court. Ryland Group, Inc.

v, Hood, 924 S.W.2d 120, 122 (Tex.1996).         Appellee’s general conclusions,



                                                                               10
allegations, and speculation were insufficient to merit summary judgment herein.

See Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 (5th Cir.2000); Alizadeh v.

Safeway Stores, Inc., 802 F.2d 111, 113 (5th Cir.1986); Ryland Group, Inc. v.

Hood, 924 S.W.2d 120, 122 (Tex. 1996); Rizkallah v. Conner, 952 S.W.2d 580,

586 (Tex. App.—Houston [1st Dist.] 1997, no writ).

      Because affidavits supporting or opposing a motion for summary judgment

cannot contain conclusory statements, the objectionable allegations made in

Appellee’s purported summary judgment evidence should have been sustained by

the trial court. Gonzales v. Shing Wai Brass and Metal Wares Factory, Ltd., 190

S.W.3d 742, 746, (Tex.App. - San Antonio 2005, no pet); See, Ryland Group, Inc.

v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (emphasis added); see also, Latimer v.

City Nat'l Bank of Colorado City, 715 S.W.2d 825, 826 (Tex. App. - Eastland

1986, no writ). Nothing in the Affidavit of Tom Martin authorizes or qualifies him

to make the conclusory allegations contained therein. No competent summary

judgment evidence was proffered by Appellee to substantiate such conclusions.

Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Life Ins. Co. v. Gar-Dal

Inc., 570 S.W.2d 378, 381-82 (Tex. 1978); 801 Nolana, Inc. v. RTC Mtg. Trust,

944 S.W.2d 751, 754 (Tex. App.—Corpus Christi 1997, writ denied). In his

response to Appellee’s motion for summary judgment, the Appellant ALLAN R.

AVERY identified a collection of defects in the affidavit of Tom Martin and its



                                                                               11
accompanying exhibit(s), attached to Appellee’s motion for summary judgment,

and duly made objection thereto for the conclusory statements unsubstantiated by

any corroborating evidence. The Appellant further made objection that the affiants

did not have personal knowledge, were not authorized or qualified, and could not

properly identify or authenticate the exhibits they sought to introduce into

evidence.   For such reasons alone, the trial court erred in failing to sustain

Appellant’s objections to Appellee’s purported summary judgment evidence. See

Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994); Grand Prairie ISD v.

Vaughan, 792 S.W.2d 944, 945 (Tex. 1990).

      The Appellant further objected to the purported Restated Note Allonge(s)

included in the instruments attached to the Affidavit of Tom Martin as Exhibit(s)

“C” and “E”, attached to Appellee’s second amended summary judgment as the

Appellee altogether failed to timely produce such records in this lawsuit.

Specifically, on August 3, 2012, the Appellant ALLAN R. AVERY, served written

discovery on the Appellee LPP MORTGAGE, LTD., under the Texas Rules of

Civil Procedure, explicitly requesting the exact instruments attached to the

Affidavit of Tom Martin as Exhibit(s) “C” and “E”. On August 31, 2012, the

Appellee served its objections and responses to the written discovery which did not

contain the Restated Note Allonge(s) contained in Exhibit(s) “C” and “E”. On

December 4, 2012, the trial court entered an Order Granting Appellant ALLAN R.



                                                                                12
AVERY’s Motion to Compel. On February 12, 2013, the Appellant filed a second

motion to compel Appellee’s production of documents as the Appellee still had not

produced instruments necessary for its case including, but not limited to, the

Restated Note Allonge(s) contained in Exhibit(s) “C” and “E”.         On or about

February 26, 2013, potentially due to Appellee’s representation that it has in all

things complied with the production previously ordered by the trial court, the trial

court denied the Appellant’s second motion to compel. Only in response to the

Appellant’s no evidence motion for summary judgment filed March 12, 2013, and

in the Appellee’s amended and second amended motion(s) for summary judgment

did the Appellee finally possess and proffer the Restated Note Allonge(s) included

in Exhibit(s) “C” and “E”. The Appellee has, at all times, failed to properly

produce such Restated Note Allonge(s) in response to Appellant’s request for

production. The Appellant’s objections to the Restated Note Allonge(s) should

have been sustained and the trial court should have disregarded and striken same

for Appellee’s failure to comply with the trial court’s Order Granting Appellant

ALLAN R. AVERY’s Motion to Compel.              Appellee’s delinquent attempt to

proffer the Restated Note Allonge(s) at its convenience, in conjunction with

motion(s) for summary judgment rather than in response to a duly served and

judicially compelled request for production should preclude the use of same as

evidence herein. Appellee blatantly abused the discovery process and attempted to



                                                                                 13
conceal documents responsive to duly served and judicially compelled discovery

responses. For such reasons, the trial court should have sustained Appellant’s

objections and striken and disregarded the Restated Note Allonge(s) attached to the

Affidavit of Tom Martin as Exhibit(s) “C” and “E”.

      The Appellant also objected to the purported Limited Power(s) of Attorney

included in the instruments attached to the Affidavit of Tom Martin as Exhibit(s)

“G”, “I”, and “J”, Dallas County Clerk’s file number(s) 201100114217,

201100114213, and 201100114216, respectively, as the Appellee altogether failed

to timely produce such records in this lawsuit. Specifically, on August 3, 2012, the

Appellant ALLAN R. AVERY, served written discovery on the Appellee LPP

MORTGAGE, LTD., under the Texas Rules of Civil Procedure, explicitly

requesting the exact instruments attached to the Affidavit of Tom Martin as

Exhibit(s) “G”, “I”, and “J”.     On August 31, 2012, the Appellee served its

objections and responses to the written discovery which did not contain the

Limited Power(s) of Attorney contained in Exhibit(s) “G”, “I”, and “J”.         On

December 4, 2012, the trial court entered an Order Granting Appellant ALLAN R.

AVERY’s Motion to Compel. On February 12, 2013, the Appellant filed a second

motion to compel Appellee’s production of documents as the Appellee still had not

produced instruments necessary for its case including, but not limited to, the

Limited Power(s) of Attorney contained in Exhibit(s) “G”, “I”, and “J”. On or



                                                                                 14
about February 26, 2013, due to Appellee’s representation that it has in all things

complied with the production previously ordered by the trial court, the trial court

denied the Appellant’s second motion to compel.         Only in response to the

Appellant’s no evidence motion for summary judgment, and in conjunction with

the Appellee’s amended and second amended motion(s) for summary judgment did

the Appellee finally possess and proffer the Limited Power(s) of Attorney included

in Exhibit(s) “G”, “I”, and “J”. The Appellee has, at all times, failed to properly

produce such Limited Power(s) of Attorney in response to Appellant’s request for

production.   Said Limited Power(s) of Attorney should therefore have been

disregarded and striken for Appellee’s failure to comply with the trial court’s

Order Granting Appellant ALLAN R. AVERY’s Motion to Compel, only

producing the Limited Power(s) of Attorney at its convenience, in conjunction with

motion(s) for summary judgment rather than in response to a duly served and

judicially compelled request for production.      Appellee blatantly abused the

discovery process and attempted to conceal documents responsive to duly served

and judicially compelled discovery responses. For such reasons, the trial court

should have sustained Appellant’s objections and striken and disregarded the

Limited Power(s) of Attorney attached to the Affidavit of Tom Martin as

Exhibit(s) “G”, “I”, and “J”.

      And further, the Appellant objected to the Exhibit(s) “A”, and “B”, included



                                                                                15
in Appellee’s second amended motion for summary judgment and identified as

“Notice of Closure of New South Federal Savings Bank and Appointment of FDIC

as Receiver” and “Purchase and Assumption Agreement” respectively. Neither

Exhibit “A” nor Exhibit “B” were properly identified or authenticated. Such

records do not constitute business records of the Appellee LPP MORTGAGE,

LTD., or CLMG Corp., the entity by which the affiant Tom Martin purportedly is

employed. Further, Affiant Tom Martin alleges to have reviewed “records relating

to Beal Bank’s acquisition of assets from the FDIC”, but such allegation does not

impart personal knowledge or competence to provide summary judgment evidence

as to the information contained in such records, as Affiant Tom Martin is neither

an authorized agent nor the custodian of records for Beal Bank or the FDIC and

cannot even identify the records purportedly reviewed. Thus, the Affiant Tom

Martin was not qualified to identify or authenticate the Exhibit(s) “A” and “B”,

and such items are outside the scope of Affiant’s purported authority and

knowledge. Such Exhibit(s) “A” and “B” are therefore inadmissible for failure to

properly identify and authenticate same. Moreover, nothing in such instrument(s)

indicates that they are applicable to the promissory note(s) at issue in the lawsuit

filed by the Appellee LPP MORTGAGE, LTD. against Appellant.               For such

reasons, the trial court should have sustained Appellant’s objections and striken

and disregarded the Appellee’s Exhibit(s) “A” and “B” which are inadmissible and



                                                                                 16
the review of which would require the consideration or hearsay without any

exception.

      Appellant also made objection to the Affidavit of Victor C. Serafino,

attached to Appellee’s motion, which was not competent summary judgment

evidence, did not resolve all genuine issues of material fact, and precluded the

Appellee from entitlement to an order granting its amended motion for summary

judgment. The affiant Victor C. Serafino is not competent, qualified, or authorized

to identify or authenticate the documents attached to his Affidavit as Exhibit(s)

“1”, “2”, “3”, and “4”, the FDIC website print-out, the “Press Release”, the

“Purchase and Assumption Agreement”, and the “Order Appointing the FDIC as

Receiver”, respectively. Victor C. Serafino is neither an agent of the FDIC nor the

Office of the Comptroller of the Currency. Victor C. Serafino is not a custodian of

said records. Nothing in the caselaw provided in support of the Appellee’s second

amended motion for summary judgment eliminates the necessity to properly

identify and authenticate the documents attached to the Affidavit of Victor C.

Serafino as Exhibit(s) “1”, “2”, “3”, and “4”. The FDIC is a corporation from

which its records may constitute business records if properly identified and

authenticated, but its records do not constitute public records.      Further, the

documents attached to the Affidavit of Victor C. Serafino as Exhibit(s) “1”, “2”,

“3”, and “4”, are hearsay and fail to satisfy the “public records and reports”



                                                                                17
exception to the hearsay rule because they do not set forth “(a) the activities of the

office or agency; (b) matters observed pursuant to duty imposed by law as to which

there is a duty to report . . . ; or (c) factual findings resulting from an investigation

made pursuant to authority granted by law”. See Rule 803(8) of the Texas Rules of

Evidence. Only certified copies of such Exhibit(s) “1”, “2”, “3”, and “4”, would

have satisfied the evidentiary rules necessary to render such documents admissible

for the purposes Appellee required. Moreover, Rule 902 of the Texas Rules of

Evidence does not provide any grounds for self-authentication applicable to the

documents attached to the Affidavit of Victor C. Serafino as Exhibit(s) “1”, “2”,

“3”, and “4”. There does not exist any seal or certification under seal from a

public officer in Exhibit(s) “1”, “2”, “3”, and “4”, as would be required under Rule

902 of the Texas Rules of Evidence. See Al-Nayem Int’l Trading, Inc. v. Irving

ISD, 159 S.W.3d 762, 764 (Tex.App.—Dallas 2005, no pet.)(“because . . . did not

bear a seal or contain a certification under seal from a public officer, [they] were

not self-authenticating as certified public records . . . .”). For such reasons, the trial

court should have sustained Appellant’s objections and striken and disregarded the

documents attached to the Affidavit of Victor C. Serafino as Exhibit(s) “1”, “2”,

“3”, and “4”.




                                                                                       18
II. The Evidence is Legally and Factually insufficient to establish Appellee’s

capacity

      Appellant would show that the evidence is legally and factually insufficient

to support the judgment entered against it in favor of the Appellee. In his response

to Appellee’s second amended motion for summary judgment, the Appellant

ALLAN R. AVERY clearly raised a disputed fact issue and demonstrated that no

probative evidence exists to substantiate and support essential elements of the

Appellee’s alleged capacity and claims made herein. Park Place Hosp. v. Estate of

Milo, 909 S.W.2d 508, 511 (Tex.1995); Jones v. Texas Pac Indem. Co., 853

S.W.2d 791, 795 (Tex.App.—Dallas 1993, no writ); City of Houston v. McDonald,

946 S.W.2d 419, 420 (Tex. App.—Houston [14th Dist.] 1997, writ denied); James

v. Hitchcock ISD, 742 S.W.2d 701, 703 (Tex. App.—Houston [1st Dist.] 1987, writ

denied). Specifically, the Appellant duly made objection to Appellee’s affidavit(s)

and exhibit(s) attached to its motion as summary judgment evidence of the

unbroken chain of title and assignments transferring to the Appellee the right to

enforce both promissory note(s) at issue in this case.     Appellee’s motion and

accompanying summary judgment evidence misidentified potentially public

records as business records because Appellee failed to proffer certified copies or a

competent business records affidavit for the receivership and appointment of the

FDIC as Receiver issues. For these issues, the Appellee did not produce the best



                                                                                 19
evidence and was not entitled to summary judgment. See Mercer v. Daoran Corp.,

676 S.W.2d 580, 583 (Tex. 1984).         With respect to the chain of title to the

promissory note(s), Appellee’s summary judgment evidence attached to Appellee’s

second amended motion altogether failed to include any competent summary

judgment evidence to support its allegation(s): a) that New South Federal Savings

Bank went into receivership or b) that the FDIC was appointed as Receiver for the

New South Federal Savings Bank. Texas law establishes that “the nature and

extent of the authority granted must be ascertained from the instrument . . . to be

strictly construed” which must be considered herein when scrutinizing Appellee’s

capacity to recover. See First Nat’l Bank in Dallas v. Kinabrew, 589 S.W.2d 137,

145 (Tex.Civ.App—Tyler 1979, writ ref’d n.r.e.).

      In its second amended motion for summary judgment, the Appellee

altogether failed to establish, as a matter of law, the essential elements that 1) New

South Federal Savings Bank went into receivership; 2) the FDIC was appointed as

Receiver for the New South Federal Savings Bank; and 3) the two (2) promissory

note(s) on which Appellee’s claim for breach of contract is based were properly

assigned, negotiated, and/or transferred through unbroken chain of title to the

Appellee. Texas law recognizes that assignees must be able to trace their rights

back through an “unbroken chain of title”, including both “possession and

indorsement” to the original lender to enforce the note. See Leavings v. Mills, 175



                                                                                   20
S.W.3d 301, 310 (Tex.App.—Houston [1st Dist.] 2004, no pet.).          Failure to

properly identify and authenticate the instruments upon which Appellee’s chain of

title depends precluded Appellee from being entitled to summary judgment herein.

      The record shows that Appellant ALLAN R. AVERY duly responded to

Appellee’s second amended motion for summary judgment and, therein, duly made

objections to the Paragraph(s) in Section II of Appellee’s second amended motion

and Paragraph(s) 2, 4, 6, and 8, of the Affidavit of Tom Martin, attached to

Appellee’s motion as Exhibit “1”, on the basis that such paragraphs contain

conclusory statements unsubstantiated by any corroborating evidence. Nothing in

the Affidavit of Tom Martin authorizes or qualifies him to make the conclusory

allegations contained therein. No competent summary judgment evidence was

proffered by Appellee to substantiate such conclusions.       In his response to

Appellee’s motion for summary judgment, the Appellant ALLAN R. AVERY

identified a collection of defects in the affidavit of Tom Martin and its

accompanying exhibit(s), attached to Appellee’s motion for summary judgment,

and duly made objection thereto for the conclusory statements unsubstantiated by

any corroborating evidence. The Appellant further made objection that the affiants

did not have personal knowledge, were not authorized or qualified, and could not

properly identify or authenticate the exhibits they sought to introduce into




                                                                               21
evidence. For such reasons alone, the Court erred in granting the motion for

summary judgment.

      The Appellant further objected to the purported Restated Note Allonge(s)

and Limited Power(s) of Attorney included in the instruments attached to the

Affidavit of Tom Martin as Exhibit(s) “C”, “E”, “G”, “I”, and “J”, Dallas County

Clerk’s file number(s) 201100114217, 201100114213, and 201100114216,

respectively, as the Appellee altogether failed to timely produce such records in

this lawsuit. Appellee’s failure to comply with the trial court’s Order Granting

Appellant ALLAN R. AVERY’s Motion to Compel, by only proffering the

purported Restated Note Allonge(s) and Limited Power(s) of Attorney at its

convenience, in conjunction with motion(s) for summary judgment rather than in

response to a duly served and judicially compelled request for production should

have precluded the consideration of such items. Appellee blatantly abused the

discovery process and attempted to conceal documents responsive to duly served

and judicially compelled discovery responses. For such reasons, the evidence was

legally and factually insufficient to conclusively establish Appellee’s capacity and

entitlement to summary judgment.

      And finally, the Appellant objected to the Exhibit(s) “A”, and “B”, identified

by Appellee as “Notice of Closure of New South Federal Savings Bank and

Appointment of FDIC as Receiver” and “Purchase and Assumption Agreement,”



                                                                                 22
respectively, as well as the Exhibit(s) “1”, “2”, “3”, and “4”, the FDIC website

print-out, the “Press Release”, the “Purchase and Assumption Agreement”, and the

“Order Appointing the FDIC as Receiver”, respectively, attached to the Affidavit

of Victor C. Serafino.    None of such purported summary judgment evidence

instruments were properly identified or authenticated.       Such records do not

constitute business records of the Appellee LPP MORTGAGE, LTD., any entity

by which the affiant(s) Tom Martin or Victor C. Serafino are employed. Thus, the

Affiant(s) Tom Martin and Victor C. Serafino were not qualified to identify or

authenticate the Exhibit(s) “A” and “B”, or Exhibit(s) “1”, “2”, “3”, and “4.” Such

items are clearly outside the scope of said affiant(s)’ purported authority and

knowledge. All such Exhibit(s) are therefore inadmissible for failure to properly

identify and authenticate same. Nothing proffered by Appellee eliminates the

necessity to properly identify and authenticate summary judgment evidence.

Moreover, nothing in such instrument(s) indicates that they are applicable to the

promissory note(s) at issue in this current lawsuit filed by the Appellee LPP

MORTGAGE, LTD. Further, nothing proffered by Appellee satisfies the “public

records and reports” exception to the hearsay rule because Appellee’ Exhibit(s) do

not set forth “(a) the activities of the office or agency; (b) matters observed

pursuant to duty imposed by law as to which there is a duty to report . . . ; or (c)

factual findings resulting from an investigation made pursuant to authority granted



                                                                                 23
by law”. See Rule 803(8) of the Texas Rules of Evidence. And finally, there does

not exist any seal or certification under seal from a public officer or other grounds

for self-authentication in Appellee’s Exhibit(s). See Rule 902 of the Texas Rules

of Civil Procedure.      For such reasons, the evidence is legally and factually

insufficient to support the Final Summary Judgment entered in favor of Appellee

and against Appellant.



III. The evidence is legally and factually insufficient to support the Trial

Court’s award of attorney’s fees to Appellant

      In his response, Appellant demonstrates that Paragraph III of Appellee’s

second amended motion for summary judgment and the Affidavit of Victor C.

Serafino attached as Exhibit “3” thereto fall well short of the standards for legally

sufficient evidence to calculate a reasonable attorney’s fee award as articulated in

El Apple I, Ltd. v. Olivas, 55 Tex. Sup. Ct. J. 954 (Tex. 2012). The Texas Supreme

Court explained that a multi-step process is required, i.e. determine the reasonable

number of hours spent and reasonable hourly rate for work performed; multiply the

number of hours reasonably expended by the reasonable hourly rate; and determine

whether factors merit adjustment of the result to reach a reasonable fee award. In

Appellee’s purported summary judgment evidence, Appellee altogether failed to

articulate any amount of hours spent or to discuss work performed. The $20,000 in



                                                                                  24
attorney’s fees claimed by Appellee is a conclusory total without any foundation to

establish the reasonableness of such amount. The Appellee fails to establish any

“billing judgment” to demonstrate that unproductive, excessive, or redundant hours

are not included in the claim. See El Apple, 55 Tex. Sup. Ct. J. at 958. For such

reasons, there existed genuine issues of material fact which precluded Appellee

from being entitled to summary judgment on its claims for attorney’s fees.



IV. The evidence is legally and factually insufficient to support the Trial

Court’s award of damages to Appellant

      Appellant’s response to Appellee’s second amended motion for summary

judgment demonstrates that Appellee makes claims for late charges, accrued but

unpaid interest, non-legal collection costs, taxes and insurance, and per diem

interest, but no accompanying summary judgment evidence is provided to

conclusively substantiate such amount(s) claimed. The only purported summary

judgment evidence proffered by the Appellee with respect to its damages

calculations was Appellee’s Exhibit “L” attached to the affidavit of Tom Martin.

Such exhibit, identified as the “Loan Transaction History Report” contains no

accounting information after July 5, 2011, for Note 1, and contains no accounting

information after December 1, 2011, for Note 2. As per the Appellee’s Exhibit

“L”, the only evidence of accrued interest for Note 1 is $210,396.29, and not the



                                                                                25
$343,809.20 claimed in Section III of Appellee’s second amended motion for

summary judgment and Paragraph 17 of the Affidavit of Tom Martin. Further, as

per the Appellee’s Exhibit “L”, the only evidence of accrued interest for Note 2 is

$41,470.94, and not the $98,468.43 claimed in Section III of Appellee’s second

amended motion for summary judgment and Paragraph 17 of the Affidavit of Tom

Martin.   Additionally, Appellee altogether failed to proffer any competent

summary judgment evidence as to the purported non-legal collection costs, taxes

and insurance, or per diem interest contained in Section III of Appellee’s second

amended motion for summary judgment or Paragraph 17 of the Affidavit of Tom

Martin.   The complete absence of any summary judgment evidence of these

claimed damages elements, combined with the blatant inconsistencies between the

amounts contained in Appellee’s Exhibit “L”, as compared to the Section III of

Appellee’s second amended motion for summary judgment or Paragraph 17 of the

Affidavit of Tom Martin raises genuine issues of material fact which precluded the

Appellee from being entitled to summary judgment on its alleged damages.




Conclusion

      As set forth above, the Trial Court erred by failing to sustain duly made

objections to and considering incompetent, inadmissible summary judgment

proffered by Appellee. The record clearly shows that Appellee did not produce the

                                                                                26
best evidence, or any evidence sufficient to conclusively establish its capacity to

recover against the Appellant and was not entitled to summary judgment.

Moreover, the evidence is legally and factually insufficient to support the damages

award contained in the Final Summary Judgment entered by the trial court in favor

of Appellee.     And finally, the evidence is legally and factually insufficient to

support the attorney’s fees award contained in the Final Summary Judgment

entered by the trial court against Appellant. Thus, for the failure and inability to

proffer admissible evidence with respect to genuine, material issues identified by

Appellant it his response, the Appellee did not, as a matter of law, conclusively

establish that it was entitled to summary judgment against the Appellant ALLAN

R. AVERY.


Prayer

      Wherefore, premises considered, Appellant ALLAN R. AVERY, prays that

this Honorable Court reverse and remand the Final Summary Judgment entered

against it and in favor of the Appellee LPP MORTGAGE, LTD., under Cause No.

201165958, in the 127th Judicial District Court of Harris County, Texas. The

reversible errors committed by the trial court and insufficient evidence to sustain

the Final Summary Judgment necessitate a reversal and remand in favor of the

Appellant in the interest of justice and fairness.

                                        Respectfully Submitted,

                                                                                 27
                                      /s/ Jarett T. LaRochelle
                                      Jarett T. LaRochelle
                                      Texas Bar No. 24041296
                                      One Riverway, Suite 1700
                                      Houston, Texas 77056
                                      713-907-8668 telephone
                                      713-840-6351 facsimile
                                      ATTORNEYS FOR APPELLANT
                                      ALLAN R. AVERY


Certificate of Compliance

       This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a convention typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
less than 6,000 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).

                                      /s/ Jarett T. LaRochelle
                                      Jarett T. LaRochelle


Certificate of Service

      I hereby certify that a true and correct copy of the foregoing notice has been
forwarded to the following parties or their counsel of record in accordance with the
Texas Rules of Civil Procedure on this the 6th day of March, 2015:

      Victor C. Serafino
      Vincent Lopez Serafino & Jenevein, P.C.
      1601 Elm Street, Suite 4100
      Dallas, Texas 77201
      214-979-7402 facsimile
                                      /s/ Jarett T. LaRochelle
                                      Jarett T. LaRochelle


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