Kb Realtron Management v. Stephanie Deleon ( 2015 )

ACCEPTED
13-13-00411-CV
FILED THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS 4/21/2015 10:23:31 PM
CORPUS CHRISTI DORIAN RAMIREZ
CLERK
4/21/15
DORIAN E. RAMIREZ, CLERK 13-13-00411-CV
BY DTello
IN THE COURT OF APPEALS OF TEXAS RECEIVED IN
THIRTEENTH DISTRICT 13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
CORPUS CHRISTI 4/21/2015 10:23:31 PM
DORIAN E. RAMIREZ
Clerk
KBREALTRON MANAGEMENT
Appellant
v.
STEPHANIE DELEON
Appellee
On Appeal from the County Court at Law # 1
Travis County, Texas
Trial Court Cause No. C-1-V-12-002167
APPELLANT'S BRIEF
Kevin Bierwirth
13276 Research Blvd. Ste. 204
Austin, Texas 78750
(512) 825-0331
IDENTITY OF THE PARTIES
Appellant
Kevin Bierwirth
13276 Research Blvd. Ste. 204
Austin, Texas 78750
Appellee
Stephanie DeLeon
4108 Kilgore Lane
Austin, Texas 78727
Attorney for Appellee in JP Court
and ancillary proceedings
Matthew J. Wagner
Hall Attorneys, P.C.
701 Brazos, Suite 500
Austin, Texas 78701
11
TABLE OF CONTENTS
Identity of Parties and COllllsel.. .......................................................... .ii
Table of Contents .... .. ... ... .... ..... ... ...... ... .... ..... ... .... ..... ...... ....... ...... .. ..iii
Table of Authorities ........................................................................... v
Statement ofJurisdiction ................ .. ......... .. .. ...... .. .............................. 1
Statement of the Case ............ ... ... ...... .. . ......... ... ...... .. . ............... .. . ....... 1
Issues Presented ............................................................................... 1
ISSUE 1
DID APPELLANT PROVE THAT HE WAS ENTITLED TO THE RELIEF
REQUESTED?
ISSUE 2
DID THE PRESIDING JUDGE VIOLATE CANONS OF THE TEXAS CODE
OF JUDICIAL CONDUCT
ISSUE 3
WAS APPELLANT DENIED DUE PROCESS BY A JUDGE WHO WAS
BIASED AND PREJUDICED
Statement of Facts ......... ......... ............... ......... ......... ......... ............... 2
Summary of Argument. ..... ... .... .. ... .. ... .... ... ... .... .. ... .. ... ....... .... .. .... .... .5
Arguments and Authorities ................................................................ 6
Conclusion ... ... .. ....... .. . ......... .. ................... .. .......... .... ..... .. ..... .. ..... 16
Prayer. .. .. . ...... ... ... ........ .. .. ... .. .. ...... ... ........ .. .. ........ .. .. ..... .. .. .......... 16
Certificate of Service ......... .. .......... .. . ......... .. .......... .. . ......... .. ..... .. .... 17
Certificate of Compliance ... .. ... .... ... ... .. .. .. ... .. ... .... ... ... ...... .. ... .... ... ... .17
111
Appendix
IV
TABLE OF AUTHORITIES
Cases
In re Thoma, 873 S.W.2d 477, (Tex.I994) ... .. . ... .... .. ... ... .. ...... .... ..... ... ... 15
United States v. Bray, 546 F.2d 851 (lOth Cir. 1976) ................................ 14
United States v. Haywood, 411 F.2d 555 (5 th Cir. 1969) .... . , ....... .. ..... .... .... 14
United States v. Lanham, 416 F.2d 1140 (56 th Cir. 1969) ........ , ... .. .. ... .. .. ... 14
Vaughn v. State, 3 Tenn.Crim.App. 54,456 S.W.2d 879, 883 ...................... 15
Statutes
Texas Civil Practice & Remedies Code §51.012 ......... ... ...... ... ...... ... ...... .. 1
Texas Local Government Code §I92.001.. ....... .. .......... .... .. .. ....... .. . ....... .1
Constitution
Texas Constitution, Art. 1, Sec. 13 ......... .. .......... .. . ......... .. .............. .. . .15
Texas Constitution, Art. 1, Sec. 19 ..................................................... 15
Texas Constitution, Art. 5, Sec. 6 ............. .. ................... .. .. .. ... .. .. .......... 1
Authorities
Texas Code ofJudiciaI Conduct, Canon 1 and Canon 2 ........... , ... .... .... ... .... 6
v
STATEMENT OF JURISDICTION
This Court has jurisdiction of the appeal because Appellant appeals a final
Judgment from the Travis County Court at Law #1, Travis County, Texas. Texas
Civil Practice & Remedies Code §5l.0l2, Texas Local Government Code
§192.00l, and Texas Constitution, Art. 5, Sec. 6.
This Court has jurisdiction concerning appeal of forcible detainer
proceedings, Texas Property Code, Chapter 5l.
STATEMENT OF THE CASE
This is an appeal of a Motion for Possession of Property and Unpaid Rent
from County Court which was preceded by an action for forcible detainer from the
justice court. The trial occurred on February 2, 2012 and judgment was rendered
on February 2,2012 and timely appealed.
ISSUES PRESENTED
ISSUE 1
DID APPELLANT PROVE THAT HE WAS ENTITLED TO THE RELIEF
REQUESTED?
ISSUE 2
DID THE PRESIDING JUDGE VIOLATE CANONS OF THE TEXAS CODE
OF JUDICIAL CONDUCT
ISSUE 3
WAS APPELLANT DENIED DUE PROCESS BY A JUDGE WHO WAS
BIASED AND PREJUDICED
1
STATEMENT OF FACTS
Kevin Bierwirth d/b/a! KBRealtron Management, (hereinafter Appellant) is
a man who, after suffering an economic downturn, studied and became very aware
of the rampant fraud in mortgage foreclosures and, as a result, has availed himself
of his due process rights in fighting mortgage fraud in his own cases.
As a result of his actions in the courts against unlawful acts, such a robo-
signing, incomplete chain of title, etc., attorneys for mortgage companies have
libeled and slandered his name. These very same bar card members have access to
and relationships with the bar card carrying attorneys who have attained the rank of
judge.
There is no way that Appellant can successfully staunch the rumor campaign
which takes place behind his back. It is however, a fact that it is practiced and it is
a fact that the rumors have an effect on the opinions of the judges.
Appellant believes that the Court will see the expression of that prejudice in
his appeal.
Appellant has, for many years, had a d/b/a of KBRealtron Management. In
this capacity, Appellant manages rental properties for landlords and sometimes for
his own properties. It was in the latter capacity that he leased a property to
Appellee.
2
Before Appellee signed the lease, (CR p.146-159, RR Vol. 2, Plaintiff's
Exhibit 1, RR Vol. 3), Appellee was fully informed that the property had been the
subject of a foreclosure, which was on appeal, and that should Appellant lose
possession, she would have to vacate the premises on short notice which would
automatically facilitate the return of her deposit.
Appellee, after having the benefit of full disclosure, nonetheless elected to
lease the premises.
Appellant inadvertently mislaid the $1200 certified check for the deposit,
notified the Appellee and she cancelled the check. These were to be the only funds
Appellant was to receive for the duration oftime Appellee occupied the premises.
Appellee refused to make payments pursuant to the lease, and after notice to
Appellee, Appellant filed for forcible detainer. Appellee hired an attorney,
Matthew J. Wagner, to defend her position at the forcible detainer case at the
Justice level. It is clear from Wagner's pleadings, (CR page 173-181), that he
had no llllderstanding of possessory interest in real property.
The law is clear, there are two issues in real property, one the right to title
and, two, the right of possession. Appellant had never been removed from
possession, and maintained the legal right to lease the property. Mr. Wagner's
argument prevailed at the JP level and the case was appealed to county court, for a
trial de novo.
3
Mr. Wagner was told on two separate occasions by district judges in a
concurrent case that he was mistaken as to the possession issue. The judges told
Mr. Wagner that as long as Appellant maintained his possessory interest, he could
rent, lease, let sit idle, or anything else he chose to do with the property.
Mr. Wagner apparently finally got the message and withdrew as Appellee's
counsel on August 15,2012. (CR page 311-313)
Appellee resided in the property from December 17, 2011, (CR page 267
line 20), to sometime in April of 2012.
Appellee executed a lease on the property on November 23, 20ll. eRR Vol.
3 page 14)
Appellee acknowledged that before signing the lease she was informed that
the house was in a foreclosure process. (CR page 270, line 19-25)
Appellee testified that she was informed of the legal status of the property
before she signed the lease.
Appellee agreed to all the conditions and did, in fact, sign the lease.
Appellee lived in the property from December 17, 2011 to April 1, 2012 and
did not pay any consideration whatsoever towards the lease commitment.
Appellant is due and owing the judgment pled for at the county court.
4
SUMMARY OF ARGUMENT
Appellant filed a forcible detainer suit against Appellee. Appellant had a
signed lease and Appellee breached the contract. Appellee refused to pay and
refused to leave.
Appellant had evidence of the lease, and Appellee testified that she had not
paid Appellant any of the monies prescribed in the lease.
Appellant filed the original petition and appealed to a de novo court, having
full faith the legal system that would find that Appellee had breached the contract,
and as result, would be ordered to pay.
Appellant did not believe he would be denied his rights and remedy, as the
case was so clear cut.
Instead, Appellant was treated with contempt, disdain and an outright show
of hatred on the part of the appellate judge, J. David Phillips. Judge Phillips called
Appellant a liar and a thief in open court, although there is no evidence in the
record that Appellant had lied or stolen from anyone, and, as a consequence of his
personal prejudice, Judge Phillips denied him relief. Instead, Judge Phillips made
it clear that Appellee could breach the contract and not be held liable because she
had leased a property from a man that Judge Phillips personally reviled.
There is not and should not be a place in Texas jurisprudence where this is
allowed to transpire.
5
ARGUMENTS AND AUTHORITIES
ISSUE 1
DID APPELLANT PROVE THAT HE WAS ENTITLED TO THE RELIEF
REQUESTED?
At trial, Appellant provided evidence that Appellee had signed a lease,
Appellee had occupied the property for close to four months and Appellee had paid
no consideration whatsoever, an obvious breach of the contract.
Appellant provided the Court with the amount due and owmg on the
contract.
Appellant proved to the Court that he was entitled to the relief requested.
ISSUE 2
DID THE PRESIDING JUDGE VIOLATE CANONS OF THE TEXAS
CODE OF JUDICIAL CONDUCT
Canon l: An independent and honorable judiciary is indispensable to justice in
our society. A judge should participate in establishing, maintain, and enforcing
high standards of conduct, and should personally observe those standards so that
the integrity and independence of the judiciary is preserved. The provisions of this
Code are to be construed and applied to further that objective.
Canon 2: Avoiding Impropriety and the Appearance of Impropriety in All of the
Judge's Activities.
A. A judge shall comply with the law and should act at all times in a manner
that promotes public confidence in the integrity and impartiality ofthe judiciary.
It is evident from the transcript of this trial that Judge J. David Phillips held
absolute enmity and contempt for Appellant from the beginning to the end of the
hearing.
6
It was further obvious that because of his personal disdain for Appellant,
Judge Phillips, in order to maintain the integrity of the Court, should have recused
himself. Instead, Judge Phillips used the Court to vilify, embarrass and further
torture Appellant. Appellant asserts the rationale behind Judge Phillips enmity was
based on circulating rumors and previous litigation.
In the transcript of the case, Appellant is testifying as to the attempts to
induce Appellee to pay her deposit and rent, and states, at RR VoL 2, beginning on
page 6, and continuing through page 7:, "According to my bank, she was
missing numbers or she didn't do it properly or whatever, and my bank felt like she
was doing it purposely.
THE COURT: Your bank felt like it was purposely?
MR. BIERWIRTH: I have a letter-
THE COURT: If I go kick your bank, is it going to say ouch?
MR. BIERWIRTH: I'm sure they will. I have a letter here saying - that I
will put as evidence. And that was just for the deposit only.
THE COURT: So where does it say your bank feels like it was being done
purposely?
MR. BIERWIRTH: Well, I thought it was in that letter.
THE COURT: The truth, please. The truth.
MR. BIERWIRTH: The credit transaction amount - okay.
7
THE COURT: Not there.
MR. BIERWIRTH: My mistake. They just said it was invalid account
numbers, HCRR transaction code, which I don't know what it means. Unless it
was not getting through electronically.
THE COURT: Right.
Although it was discussed and exhibited in the hearing, the letter was not
entered into evidence in the court because Appellant felt badgered and forgot to do
so.
The transcript further reflects the acerbic attitude and demeanor ofthe judge:
In RR Vol. 2 page 8: THE COURT: Will you just tell me the story why she
owes you money, please?
MR. BIERWIRTH: For nonpayment of rents.
THE COURT: How much? How much rent did she not pay?
MR. BIERWIRTH: From ...
THE COURT: It's very entertaining to have to drag everything out of you,
but it's a waste oftime.
(At that point, Appellant knew it was pointless to go on, obviously Judge
Phillips intended to rule against him.)
MR. BIERWIRTH: I'm sorry. From December 16th to - it looks like to 4-
1-2012.
8
THE COURT: What happened on 4-l-2012?
MR. BIERWIRTH: 4-1-2012, she - actually let me - I have some notes that
I can track. She moved out without notice to me - without written notice, and I
believe that was sometime a little after April. But when I discovered she moved
out in April, we went in and cleaned up the property and had it painted.
THE COURT: So you're only asking for rent April 1S\ which is when she
vacated?
MR. BIERWIRTH: From December to April 11th, yes sir. And I don't
know if we can -
THE COURT: Do you have a copy ofthe lease?
MR. BIERWIRTH: Yes, sir, I do.
THE COURT: Do you want to put it into evidence?
MR. BIERWIRTH: Yes, sir.
In RR Vol.2, page 18, lines 1-3, the judge establishes that Appellee owes at
least $2435.
RR. Vol. 2, page 22: Bierwirth questioning DeLeon:
Q. (Bierwirth): And that is a legal binding contract. You're aware of
that, correct?
A. (DeLeon: I'm not aware, no.
9
Q. Didn't you state in Ms. Triana's court that it was, in fact, a legal- you
understood it was a legal binding contract?
A. I understand that leases are legal binding contracts.
MR. BIERWIRTH: Nonresponsive, Your Honor.
THE COURT: Would you let her answer it-
MR. BIERWIRTH: She's not answering it.
THE COURT: --before you start talking? She said she understands that
leases are legal binding contracts.
MR. BIERWIRTH: Okay.
THE COURT: You're trying to fool me or what?
MR. BIERWIRTH: No, sir, I'm just trying to-
THE COURT: I know what her answer is. Her answer is, she thought it
was a legal contract when she signed it.
RR Vol. 2, page 23 lines 8-13:
Q. Have you paid any funds, any money?
A. At this time no funds have been actually paid. Only attempted.
Q. How long did you stay at the property?
A. From December 17th , 2011, through March - I'm sorry, April 1'\
2012.
10
Q. Okay. Isn't it true that you filed a motion for summary judgment and
the judge had ruled that I did have a right to the property and I did have a right to
collect the monies for the property, and whether it was foreclosed or not, as long as
I had possession ofthe property?
A. The judge - there were some ruling, yes. I'm not that familiar. I have
to reread all the documents.
RR Vol. 2, page 24, line 15:
THE COURT: Any other evidence for your side, Mr. Bierwirth?
MR. BIERWIRTH; Well, I'd like to put in that order here (the summary
judgment order) ---actually, I believe here it is. Put in the order denying the
summary judgment.
THE COURT: Orders denying motion for summary judgment don't say
anything other than the motion is denied.
MR. BIERWIRTH: Okay. Well, I have the summary judgment as well if
you would like to read it if it interests you.
THE COURT: Denied. It doesn't mean the judge agreed with you. Just
some fault in the motion.
MR. BIERWIRTH: Yes, sir.
THE COURT: All right. Anything else?
MS . DELEON: No, Your Honor.
11
THE COURT: Okay. I am reminded of an old Woody Guthrie song
called "Pretty Boy Floyd", by golly. Pretty Boy Floyd was kind of a hero in
Oklahoma because he robbed banks, and banks were kind of mean to people at that
time. Part of the song says, "As through this world you travel, you see some funny
men. Some will rob you with a six-gun and some with a fountain pen." Ain't that
the truth.
(Although the record does not reflect this, Judge Phillips actually played the
Woody Guthrie song in the court.)
And you're one of them, Mr. Bierwirth. How dare you rent something to
somebody when it's been foreclosed on and you've already given a deed to the
bank? How dare you?
MR. BIERWIRTH: I didn't. They have not - I still have possession of the
property, and they have not tried --.
THE COURT: You don't have posseSSIOn of the property. Judge
Cooper wrote an order that says this order will act as writ of possession for the
property for the bank and that bank has now transferred it to somebody else, to the
FDIC or Fannie Mayor somebody.
(Judge Phillips is speaking of a summary judgment which had occurred in
district court early in the case and was not in evidence in the Court at the time.
Obviously, Judge Phillips had perused other records and fed his flames of
12
prejudice by taking into account matters which were not before him for
adjudication.)
MR. BIERWIRTH: No, sir.
THE COURT: And you pretend that you have the right to possession of the
property?
MR. BIERWIRTH: I do have a right to possession of the property.
THE COURT: Because it's been foreclosed on and transferred to two other
banks and your right to possession is?
MR. BIERWIRTH: It hasn't been transferred, Your Honor. And I have -
THE COURT: Well, according to the deed records it has.
MR. BIERWIRTH: Your Honor, I have - I have a book like this. And
when Ms. DeLeon rented the property, the bank was in litigation, as I told her
before she moved in. And I also told her that they haven't had gotten possession,
nor did they file for possession or anything.
THE COURT: I think you're a liar and a thief. Just to get that off my chest.
I think you're a liar and a thief. And she gets judgment in this case, and I assess all
cost against you. You can be excused.
MS . DELEON: Thank you, Your Honor.
THE COURT: I'll write you up an order if you want to stay.
MS . DELEON: I would very much appreciate that.
13
THE COURT: There's one for each of today's contestants. There's a
judgment for you that says plaintiff take nothing and defendant have her costs.
The Motion before the Court was a Motion for Possession of Property and
Unpaid Rent.. CR page 320-322 .
Appellant presented a bona fide lease. Appellee testified that she had lived
on the property the subject of the lease, that she had full disclosure of the
foreclosure before she moved in and that she hadn't paid a cent the entire time she
occupied the property.
It is clear that Appellee breached the contract.
That was the matter before the court.
"The comments of the trial judge, which tainted appellant's presumption of
innocence in front of the venire, were fundamental error of constitutional
dimension and required no objection." United States v. Bray, 546 F.2d 851 (10 th
Cir. 1976); United States v. Lanham, 416 F.2d 1140 (56 th Cir. 1969)(actions of trial
judge who improperly injected himself into role of prosecutor during trial
destroyed neutrality and impartiality of trial atmosphere, defendant's credibility,
and defendant's presumption of innocence, and constituted plain error); United
States v. Haywood, 411 F.2d 555 (5 th Cir. 1969).
14
Texas Constitution, Art. 1, Sec. 13. Remedy by due course of law. All
courts shall be open, and every person for an injury done him, in his lands, goods,
person or reputation, shall have remedy by due course of law.
Texas Constitution, Art. 1, Sec. 19. No citizen ofthis State shall be deprived
of life, liberty, property, privileges or immunities, or in any manner disfranchised,
except by the due course of the law ofthe land.
It is an adage as old as time that a participant in a judicial hearing is entitled
to a fair and independent law giver, whether it be a judge or a jury.
"Aside from all else, 'due process' means fundamental fairness and
substantial justice. Vaughn v. State, 3 Tenn.Crim.App. 54,456 S.W.2d 879,883 ."
Black's Law Dictionary, 6th Edition, page 500.
It is axiomatic that an independent and honorable judiciary is indispensable
to justice in our society. A judge should participate in establishing, maintaining"
and enforcing, and should observe high standards of conduct so that the integrity
and independence of the judiciary is preserved. In re Thoma, 873 S.W.2d 477,
(Tex.1994).
Appellant asserts that Judge Phillips, after being presented with the evidence
of a lease and the testimony of a breach of that lease, denied him due process by
sanctioning the conduct of the tortfeasor. Judge Phillips conduct was intentional
and willful and resulted in an unfair ruling which damaged Appellant.
15
There is no evidence before this Court, just as there was no evidence before
Judge Phillips, that Appellant was "a liar and a thief'. Appellant filed in the Court
for due process, believing that, even though he had been previously exposed to
Judge Phillips' extreme rancor, he would nevertheless receive the benefit of the
law. Instead, Judge Phillips denied Appellant his remedy and is so doing, threw
due process out the window.
CONCLUSION
Kevin Bierwirth presented evidence to the Court that he and Stephanie
DeLeon had signed a valid lease for the property at 3305 Spaniel Drive, Austin,
Texas 78759, Ms. DeLeon occupied the property and Ms. DeLeon had breached
the contract by not paying any monies whatsoever, as the lease required. Appellee
still owes Appellant the defaulted payments and fees required by the contract.
Appellant was entitled to payment as a matter of law, and because of his bias,
Judge J. David Phillips erred when he refused to find in Appellant's favor.
PRAYER
Appellant prays that this Court find in Appellant's favor, reverse the
judgment of the Travis County Court at Law #1 and render a judgment in favor of
Appellant for $10,055.42 plus attorney's fees in the amount of $2,500.00.
16
Respectfully submitted,
CERTIFICATE OF SERVICE
.I, the undersigned, l1erebycertify that a. true and correctcopy of Appellant's
Briefwas sent by United States Postal Service on April 21, 2015 to:
Stephanie DeLeon
4108 Kilgore Lane
Austin, Texas 78727
CERTIFICATE OF COMPLIANCE
I, Kevin Bierwirth, :the undersigned, do hereby certify that the number of
words in his Appellant's Brief is 3,297 words.
17
APPENDIX
EXHIBIT 1
Judgment
EXHIBIT 2
Reporter's Record Vol. 2
EXHIBIT 3
Reporter's Record Vol. 3
EXHIBIT 4
Excerpts from Clerk's Record
18
EXHIBIT 1
•
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. :
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.
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.
" -~~-
EXHIBIT 2
1
1 REPORTER'S RECORD
2 VOLUME 2 OF 3 VOLUMES
3 TRIAL COURT CAUSE NO. C~1-CV-12-002167
4 COURT OF APPEALS NO. 13-13-00411-CV
5 KB REALTRON MANAGEMENT IN THE COUNTY COURT
6
7 VS. AT LAW NO. 1
8
9 STEPHANIE DELEON TRAVIS COUNTY, TEXAS
10
11 *****************************************'***************
12 MOTION - WRIT OF POSSESSION
13 ********************************************************
14
15 On the 10th of June, 2013, the following
16 proceedings came on to be heard in the above-entitled
17 and numbered cause before the Honorable J. David
18 Phillips, Judge presiding, held in Austin, Travis
19 County, Texas:
20 Proceedings reported by machine shorthand.
21
22
23
24
25
Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
2
1 A P PEA RAN C E S
2
3 PLAINTIFF APPEARING PRO SEE:
4 Mr. Kevin Bierwirth
13276 Research Boulevard, Suite 204
5 Austin, Texas 78750
6
7
DEFENDANT APPEARIING PRO SE:
8
Ms. Stephanie DeLeon
9 4108 Kilgore Lane
Austin, Texas 78727
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
3
1 INDEX
2 VOLUME 2
3 Moti6n - Wr it of Possess i o n
4 June 10 , 2013
5 PAGE VOL.
6 Announcemen ts . 4 2
7
8 Plaintiff's
Witnesses Direct Cros s Voir Dire Vol.
9 KEVIN BIERW IRTH 5 2
10 Defendant's
Witn esse s Direct Cross Voir Dire Vo l.
11 ST EPHANIE DELEON 15 21 2
12
13 Court 's Ruling . .26 2
14 Adjournment. . 27 2
15 Court Reporter ' s Certificate. . 28 2
16
17 ALPHABETICAL INDEX OF WITNESSES
18 Direct Cross Voir Dire Vol .
BIERWIRTH, KEITH
19 By Mr. Bierwirth 5 2
20 DELE ON, STE PHA NIE
By Ms. Deleon 15 2
21 By Mr. Bierwirth 21 2
22
23 EXHIBITS OFFERED BY THE PLAINTIFF
24 EXHI BIT DESCRI PTION OFFERED ADMIT TED VOL.
1 Lease 9 9 2
25
.
Cathy Mata , CSR
County Court at Law No .1 Travi s Cou nty, Texas
512- 854-92 52
4
1 PROCEEDINGS
2 June 10, 2013
3 THE COURT: I call Cause No .
4 C-1-CV-12-002167 , KB Realtron Management versus
09 ,04, 24 5 Steph ani e DeLeon. Yo u are Mr.
6 MR . BIERWIRTH: Kevin Bierwirth.
7 THE COURT: What kind of business ?
8 MR. BIERW IRT H: D/b/a sir.
9 THE COUR T : A person al d/b /a?
09,04,2910 MR . BIERWIRTH: Yes , sir.
11 THE COURT : And Ms. Stephan ie DeLeon
12 appea rs for the other side .
13 MS. DEL EON : Yes, sir.
14 THE COURT: We're here on JP appeal of
16 Yes , sir , Mr . Bierw rith , who is your fir s t
17 witness?
18 MR. BIERWIRTH: No wi tness , sir. I have
19 submitted an affidavit contested to the facts of the
And KB Real tron Mana ge ment is lo oki ng for a
21 motion for possession o f property in unpaid rents . Now
22 the--
23 THE COURT: What evidence do you want to
24 present?
MR . BIERWIRTH : Well, we have --
Cathy Mata, CSR
County Cour t at Law No. 1 Travis County, Texas
512-854 -9252
5
1 THE COURT : So mebo dy is going to need to
2 testify .
3 MR. BIERW I RTH : I have a l ease that Ms .
4 DeLeon has , in . fact, rented the property .
Ra ise your rig ht hand, ple ase,
.
6 sir .
7 (W i tness sl'o rn ·.)
8 THE COURT: Looks lik e you need an
9 auxil iar y notebook.
MR . BIERWIRTH : Yes , sir . It has gotten
11 huge .
12 THE COURT: Th ey sell those at the Hom e
13 Depot -- or the Office Depot.
14 MR . BIERWIRTH: Looks like I' ll just have
09,06 : 2215 to take some of them out .
16 You may have a cop y of th is already.
17 THE COURT: My name is
18 MR . BIERWIRTH : Your Honor
19 THE COURT: Tell me the sto ry please , sir.
21 KEVIN BIERWIRTH,
22 having been first duly swo rn, t estified as follows:
23 DIRECT EXAMINATION
24 MR . BIERWIRTH: My name is Kev in
I ' m here for KB Realtron Management .
Cath y Ma ta, CSR
County Cour t at Law No. 1 Travis County, Texas
512-854- 9252
6
1 THE COURT: You're the owner of KB
2 Realtron Management. All right. Go ahead.
3 MR. BIERWIRTH: Okay. And Ms. DeLeon back
4 in December -- let me see the lease. Back in December,
09;07;24 5 I believe around the 14th, had leased a property from
6 me.
7 THE COURT: A property that you own?
8 MR. BIERWIRTH: Yes. 16th of December of
9 2011.
09;07;4210 THE COURT: 2011 ?
11 MR. BIERWIRTH: Yes, sir.
12 THE COURT: Okay.
13 MR. BIERWIRTH: She paid a deposit with a
14 cashier's check and then cancelled it later due to the
09;07;5415 fact that I misplaced it. So I've never gotten the
16 deposit nor first month's rent from Ms. DeLeon.
17 THE COURT: At your request she cancelled
18 it because you lost it?
19 MR. BIERWIRTH: Yes, sir.
09;08;0520 THE COURT: And then she never replaced
21 it?
22 MR. BIERWIRTH: Never replaced it. There
23 was several attempts that we tried to get with her to
24 replace that. She kept trying to do a, supposedly,
09;08;2125 electronic transfer. According to my bank, she was
Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
7
1 missing numbers or she didn ' t do it properly or
2 whatever, and my ban k felt lik e she was doing it
3 purposely .
4 THE COURT : Your bank felt like it was
09,08 ,4 2 5 purposely?
6 MR. BIERWIRTH : I have a letter --
7 THE COURT: If I go kick your bank , is it
8 going to say ouch?
9 MR. BIERW IRTH : I ' m sure they wil l. I
09,08,50 10 have a letter here saying -- that I will put as
11 evidence. And that was just for the deposit only .
12 THE COURT : So where does it say your bank
13 feels like it was being done purpo sely?
14 MR . BIERWIRTH : Well, I thought it was in
09,09,1615 that letter.
16 THE COURT: The truth, please . The truth.
17 MR. BIERW IRT H: The credit transac tion
18 amount -- okay.
19 THE COURT : Not there.
09,09,442 0 MR. BIERWIRTH : My mis take. They just
21 said it was invalid account numbers, HCHR transaction
22 code , which I . don ' t know what that means . Unless it was
23 not getting through electroni cally.
24 THE COURT: Ri ght .
09 , 10,0025 MR. BIERWIRTH: Okay .
Cathy Mata, CSR
County Court at Law No. 1 Travis County , Texas
51 2 - 854-9252
8
1 THE COURT: So you don 't get y ou r $1 , 200
2 depos it?
3 MR . BIERWIRTH : Correct . Yes , sir. In
4 that process, we've contacted Ms. DeLeon on several
09:10 : 11 5 times to collect the rents behind and replenish the
6 deposit. And on those several occasions, we ' ve been
7 unsuccessful. So we filed an eviction suit in Judge
8 Bass ' court. Bass has ruled in defendant ' s favor.
9 THE COURT: I 'm sorry. Bass what?
09:10:' 5 10 MR. BIERWIRTH: He ruled in defendant's
11 favor . I appealed that case here to the county court.
12 Mr. Jeffrey Kelly was repres enting me. This actuall y
13 had been moved -- or case was filed in district court
14 and went through to district proceedings.
09:11 :0 9 15 THE COURT: Will you just tell me the
16 story why she owes you money , please?
17 MR . BIERW IRTH : For nonpayment of rents.
18 THE CO URT : How much? How much rent did
19 she not pay?
09:11:2120 MR. BIERWIRTH: From - -
21 THE COURT : It's very entertaining to have
22 to drag everything out of you , but it 's a waste of time.
23 MR. BIERWIRTH : I'm sorry. From
24 December 16th to -- it looks like to 4 -1-20 12.
09:11:4825 THE COURT : What happened on 4-1-2012?
Cathy Mata, CSR
County Court a t Law No.1 Travis County , Texas
512-8 54-9252
9
1 MR . BIERWIRTH : 4 ~1~2012 she ~~ actuall y
2 let me ~~ I have some notes that I can track . She moved
3 out without notice to me ~~ without written notice, and
4 I believe that was sometime a little after April . But
09 ,12, 15 5 when I had disco ver ed she mov ed out in April, we went in
6 and c l eaned up the property and had it painted .
7 THE COURT: So you ' re only asking f or rent
8 Apri l 1st , which is when she vacated?
9 MR . BIERWIRTH : F rom Decem ber to April
And I don't know if we can
11 THE COURT: Do you have a co p y of the
12 leas e?
13 MR . BIERWIRTH: Yes , sir , I do .
14 THE COURT : Do you want to put it into
16 MR . BIERWIRTH : Yes , sir .
17 THE COURT: Pla i ntiff ' s Exhibit 1 , the
18 lease , is offered into evidence. Do you have any
19 objection?
( Pl ai ntiff ' s Exhib it No. 1 off ered . )
21 MS. DELEON : No , objection , Your Honor.
22 THE COURT : Plaintiff's 1 admitte d into
23 the e v idence.
24 (Pl ain tiff ' s Exhi bit No . 1 adm itted.)
THE COURT: KB Realtron Management .
Cathy Mat a, CSR
County Cour t a t Law No. 1 Travis County, Texas
512 ~ 854~ 92 52
10
1 Unusual to see a management company as a landlord .
2 MR. BIERWIRTH: Yes, sir.
3 THE COURT: But you are the landlord?
4 MR. BIERWIRTH: Well, I had an agent, but
09;13;40 5 she had court today, this morning.
6 THE COURT: I'm sorry. What?
7 MR. BIERWIRTH: I have an agent, but she
8 had court this morning.
9 THE COURT: Primary term. 3305 Spaniel.
09;14;0610 And it was a one-year lease.
11 All right. What else do you need tell me?
12 MR. BIERWIRTH: I was also looking for
13 attorney's fees. Mr. Kelly first started this case with
14 an attorney retainer of 2500.
09;14;5315 THE COURT: All right.
16 MR. BIERWIRTH: And I have also filed with
17 the court a break down of running totals of the expenses
18 of the property. And I'm asking for those expenses as
19 well. Also for nonpayment of rent.
09;15;1920 THE COURT: What expenses?
21 MR. BIERWIRTH: We have storage fees.
22 THE COURT: Storage? For what?
23 MR. BIERWIRTH: I exercised that landlord
24 lien for nonpayment of rent and took possession of the
09;15;3525 personal properties and have months of storage fees for
Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
11
1 that. We have --
2 THE COURT: Where ' s the property now,
3 still in the storage?
4 MR . BIERWIRTH : No, sir .
0 9:15: 51 5 THE CO URT: What happened to it?
6 MR. BIERWIRTH: Property was sold. And
7 that is minus off the b ottom line of what I got for the
8 property.
9 THE CO URT : Ho w was it sol d?
09,1 6, 05 10 MR . BIERWIRTH: Sir?
11 THE COURT: How was it sold?
12 MR. BIERW IRTH : Well, some of it was sol d
13 on Craig's List and some of it was on peopl e that
14 were known that were interested in the pr operty .
THE COURT : That were known? Sold it to
16 your friends?
17 MR. BIERW IRT H: Not necessarily friends.
18 People that I've known tha t I used to work for or
19 something like that .
09,16,4520 THE COUR T: So when you to ok the property,
21 did you leave a written notice of
22 MR. BIERWIRTH : Yes. Yes, sir, we have
23 tha t righ t here.
24 THE CO URT: All right.
MR . BI ERWI RTH: Everything was done
Cathy Mata, CSR
Count y Court at Law No. 1 Travis County, Texas
512-854-9252
12
1 properly. Actually, I can't remember the judge next
2 door to you. They had tried to do a replevin. The
3 judge nex~ door told him they were to put so much money
4 into the court registry and that if they didn't by a
09,17,40 5 certain time that I had a right to sell the property.
6 THE COURT: You wanted them to post a bond
7 to recover the property?
8 MR. BIERWIRTH: Yes. Yes, sir. I believe
9 the bond was over I don't quite remember, but I
09,18,0610 believe it was close to 8, 000 if not more. And then she
11 was to put up the $1200.
12 THE COURT: Okay. What else do you want
13 to tell me?
14 MR. BIERWIRTH: I believe that's
16 THE COURT: Ms. DeLeon, do you have any
17 questions for Mr. Bierwirth?
18 MS. DELEON: I would like an opportunity
19 to refute the fact s, but I have no questions .
09,18,5020 THE COURT: Anything else that you think
21 he knows that I ought to hear?
22 MS. DELEON: No, sir. I have a very
23 different version.
24 THE COURT: Thank you. You may step down,
Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
13
1 Any other evidence on your side,
2 Mr. Bierwirth?
3 MR. BIERWIRTH: No, sir. Not unless you
4 would like a list of - inventory list.
THE COURT: I don't like anything. Do you
6 want to put it into evidence or not?
7 MR. BIERWIRTH: No, sir.
8 THE COURT: All right. I like that even
9 better. I said I don't like anything. I like it when
09,19,2810 you choose not to put it in evidence.
11 All right. Next. Ma'am, your side.
12 Raise your right hand, please.
13 (Witness sworn.)
14 THE COURT: Oh, one more question for you,
09,20,0115 Mr. Bierwirth. Before you sold the property, did you
16 give notice to the tenant that you were going to have a
17 sale?
18 MR. BIERWIRTH: Yes.
19 THE COURT: The date and time and place of
21 MR. BIERWIRTH: Yes, sir.
22 THE COURT: And it - but you said you
23 didn't have a sale.
24 MR. BIERWIRTH: Originally we had --
09,20,2025 originally I sent her a notice of a date and time of the
Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512 854-9252
14
1 sale, where it was going to be sold. And when the
2 when judge -- may you tell me his name next door?
3 THE COURT: Shepperd.
4 MR. BIERWIRTH: Judge Shepperd had told me
09,20,38 5 that I could sell the property if she didn't put money
6 in the court registry and that I had a right to sell it.
7 I just assumed that I had a right to just go ahead and
8 sell it.
9 THE COURT: You don't have to follow the
11 MR. BIERWIRTH: Well, I thought I did
12 follow the rules since I've already sent her notice that
13 I was selling it.
14 THE COURT: You sent her notice of a sale,
09,21,0315 but then you went to court and the judge set conditions.
16 So there's no sale going on. And you didn't send her
17 notice of another day of sale?
18 MR. BIERWIRTH: No, sir.
19 THE COURT: And you didn't have a sale.
09,21,1120 You just farmed it out to your buddies?
21 MR. BIERWIRTH: I didn't farm it out to my
22 buddies.
23 THE COURT: Right.
24 MR. BIERWIRTH: People I know who like it
09,21,2425 or were interested in it.
Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
15
1 THE COURT: Okay. Yes, ma'am, what's your
2 story?
3 STEPHANIE DELEON,
4 having been first duly sworn, testified as follows:
09,21029 5 DIRECT EXAMINATION
6 MS. DELEON: This property, that he claims
7 to own, was foreclosed in a judicial foreclosure in June
8 of 2011, and warranty deed was transferred to the bank
9 in June of 2011 prior to him leasing the property to me.
09:21:4810 And I contend that he did not have the authority to
11 lease the property to me in the first place.
12 I did give him a cashier's check for the
13 deposit. He lost said check. I then set up
14 arrangements, because I was out of town, to transfer the
09:22:0615 funds electronically as I had with several other
16 landlords in the past. And I worked with his wife,
17 A1etha Bierwirth, to set that up. She provided me the
18 numbers, and she was required to authorize the
19 transaction for it to take place.
09:22: 2220 The reason why it was returned from their
21 credit union is because the deposit was written under
22 the name of the d/b/a and their bank account was in
23 their personal name. And that's the reason why it was
24 returned.
09:22:3825 MR. BIERWIRTH: Objection, Your Honor.
Cathy Mata, CSR
County Court at Law No. 1 Travis Couhty, Texas
512-854-9252
16
1 There's a -- there is no personal name for KB Realtron
2 Management. It's had an account since 2004.
3 THE COURT: How is that an objection?
4 MR. BIERWIRTH: Well, she just said it was
09,22,54 5 a personal account.
6 THE COURT: She just said it. You don't
7 think it's true. How do you reckon trials would go if
8 every time somebody on the other side said something
9 that you didn't think was true and you said objection
09,23,0310 and explained your side?
11 MR. BIERWIRTH: I'm just trying to
12 correct.
13 THE COURT: That's not an objection.
14 MR. BIERWIRTH: Okay.
THE COURT: That's, I want to tell me my
16 side again.
17 MR. BIERWIRTH: I apologize.
18 THE COURT: Go ahead.
19 MS. DELEON: I attempted on three
09,23,1820 different occasions to pay this deposit while I was out
21 of town. I had moved in the property on the 17th and
22 was out of town for Christmas. And when I returned on
23 January 3rd, as I was driving back from out of town,
24 they had asked me to go ahead and just give them cash.
THE COURT: Who "they"?
Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
17
1 MS. DELEON: Aletha Bierwirth had asked
2 for me to go ahead and give them cash and I thought that
3 was I never had so much trouble paying anyone before
4 and I thought that was suspect; so I decided to look up
09,23,50 5 the Travis County Tax records and then learned that they
6 did not, in fact, own this property at all. I then
7 confronted him about that fact and indicated that I
8 wanted some sort of documentation that provided
9 authorization for him to lease the property to me.
09,24,0710 Instead of providing any documentation, he entered the
11 house while I was at work and stole $8,000 of property.
12 THE COURT: This is in what time?
13 MS. DELEON: January of 2012. I believe
14 January 19th, if my memory serves.
09,24,2615 THE COURT: January 2012.
16 MS. DELEON: So approximately one month
17 after having moved in.
18 THE COURT: Took a bunch of property. And
19 at that time if you owed him anything, you owed him
09,24,3820 $1200 for your deposit . And is that also the rent?
21 MS. DELEON: 1200 for rent and I believe
22 there was a $35 pet rent as well.
23 THE COURT: So at that time --
24 MR. BIERWIRTH: And a partial.
09,24,5525 THE COURT: Please stop it.
Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
18
1 At that time you would have owed him
2 $2435?
3 MS. DELEON: Yes, sir.
4 THE COURT: At the most. Rent for part of
09,25,03 5 -- a month's rent is what you owe?
6 MS. DELEON: Correct.
7 THE COURT: And pet things. Okay. Go
8 ahead.
9 MS. DELEON: I did file a police report on
09,25,1310 the matter and he then filed a suit to evict me in JP
11 court, which Judge Bass ruled and dismissed this motion
12 due to no legal standing in February of 2012. I moved
13 out as soon as I possibly could, April 1st, after
14 purchasing my own home. He then immediately entered the
09,25,3515 house and mowed the lawn and released the property.
16 There was -- I had an attorney at the
17 time. There were several motions filed in court. And
18 at one point we had been in front of the judge who asked
19 the attorneys to make an agreement for me to put in a
09,25,5620 bond the amount of rents on a monthly basis until such
21 time that it could be ruled on to validity of the lease
22 and he would not agree to that.
23 THE COURT: Who would not agree to that?
24 MS. DELEON: Kevin Bierwirth and his
09,26,0925 counsel never responded.
Cathy Mata, CSR
County Court at Law No.1 Travis County, Texas
512-854-9252
19
1 THE COURT: You didn't put it in the
2 registry of the court, did you?
3 MS. DELEON: Well, that was after he gave
4 notice to sell the property that he took out of the
We had made a bond to replevin to put in $8,000
6 to -- of a bond, and I just didn't have the money to do
7 it. No new notice was given on the sale of the
8 property. And the initial notice indicated that the
9 property would be sold on eBay. There was no detail as
09:26:4610 to when or what the URL was so that I could bid on it
11 myself. There was no way for me to attend any sort of
12 auction for me to prepurchase my property back. And no
13 new notice was given when he decided to then sell it by
14 whatever means he did.
09:27:0915 I currently don't have possession of this
16 house at this time. He's asking for possession. I
17 don't I don't have it. I can't give it to him. And
18 I don't feel that lowe him any rent. I was very, very
19 well prepared to pay rents to the court to whoever was
09:27:2920 authorized to receive those rents. I personally did not
21 feel that it was Kevin Bierwirth or his management
22 company.
23 Also, he has been filing appeals with the
24 Third Court of Appeals in order to appeal this
09:27:4525 foreclosure, which has been denied, and I have a copy of
Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
20
1 that motion in writ here . I'd like t o enter this into
2 evidence , please.
3 MR . BIERWIRTH : For Third Court of
4 Appe als --
09:28 : 10 5 THE COURT : I'm sorry, what did you just
6 say?
7 MR . BIERWIRTH : I said we ' re not here for
8 the Third Court of Appeals ' decision .
9 THE COURT: I understood that before we
11 MR . BIERWIRTH : Yes , sir.
12 THE COURT: What's your point?
13 Anyhow , he tried to appeal the judicial
14 foreclosure, is that what he tried to appeal?
MS . DELEON: Yes . In fact , he did not
16 file the appeal in time. And so his appeal was actually
17 to appeal the right to appeal because his in itial appeal
18 was n ot filed in time . And so that has gone on for over
19 a year now. But it ' s finally been decl i ned. And I h av e
09:28:5020 a copy here as well .
21 THE COURT: Okay. That ' s of little
22 interest I th i nk . Anyhow , what else do you want to tell
23 me?
24 MS. DELEON: I also have a li s t of the
09 : 29:1725 items that he removed from the house that belonged to
Cathy Mata, CSR
Coun ty Court at Law No. 1 Trav is County , Texas
512-8 54-92 52
21
1 me.
2 THE COURT: I don't think you filed a
3 counter claim, did you? If you want to get that, you're
4 going to have to file a lawsuit for it.
MS. DELEON: Okay. Yes, sir.
6 THE COURT: Okay. Anything else you want
7 to tell me?
8 MS. DELEON: I just feel that he did not
9 own the house then, nor does he own it now. He has
09,30,0110 never been able to provide any sort of documentation
11 that he ever had authority to lease the house to anyone,
12 and I don't feel that I owe him anything.
13 THE COURT: Any questions for Ms. DeLeon,
14 Mr. Bierwirth?
MR. BIERWIRTH: I do.
16 CROSS-EXAMINATION
17 BY MR. BIERWIRTH:
18 Q. Ms. DeLeon, isn't it true that you leased the
19 property? And I know that it's been said, but I'd like
09,30,3520 for you to tell the Court that it's true that you signed
21 the lease with KB Realtron Management to rent the
22 property at 3305 Spaniel.
23 A. I signed a lease in your office and you had
24 completed it. I did sign a lease under the -- I thought
09,30,5625 that you had the authority to lease the property.
Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
22
1 Q. And that is a legal binding contract. You're
2 aware of that, correct?
3 A. I'm not aware, no.
4 Q. Didn't you state in Ms. Triana's court that it
09,31,17 5 was, in fact, a legal -- you understood it was a legal
6 binding contract?
7 A. I understand that leases are legal binding
8 contracts.
9 MR. BIERWIRTH: Nonresponsive, Your Honor.
THE COURT: Would you let her answer it
11 MR. BIERWIRTH: She's not answering it.
12 THE COURT: before you start talking?
13 She said she understands that leases are legal binding
14 contracts.
MR. BIERWIRTH: Okay.
16 THE COURT: You're trying to fool me or
17 what?
18 MR. BIERWIRTH: No, sir, I'm just trying
19 to--
THE COURT: I know what her answer is.
21 Her answer is, she thought it was a legal contract when
22 she signed it.
23 THE WITNESS: I did think it was a legal
24 contract, and I did try to uphold that contract until I
09,31,5025 felt that it was not a legal contract.
Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
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1 Q. (By Mr. Bierwirth) Okay. Isn't it true that
2 you did not pay any rents for the property that you
3 leased at 3305 Spaniel?
4 A. I did pay a security deposit of $1200, which
09,32,07 5 you lost. I attempted on three additional separate
6 times to pay $1200 plus the $35 pet rent, which was
7 returned on three separate times.
8 Q. Have you paid any funds, any money?
9 A. At this time no funds have been actually paid.
11 Q. How long did you stay at the property?
12 A. From December 17th, 2011, through March -- I'm
13 sorry, April 1st, 2012.
14 Q. Okay. Isn't it true that you filed a motion
09,32,4215 for summary judgment and the judge had ruled that I did
16 have a right to the property and I did have a right to
17 collect the monies for the property, and whether it was
18 foreclosed or not, as long as I had possession of the
19 property?
A. The judge -- there were some rulings, yes. I'm
21 not familiar. I have to reread all the documents.
22 THE COURT: What judge would that be?
23 MR. BIERWIRTH: Fifth floor, sir, Your
24 Honor. I probably have that order here.
THE COURT: All right. Anyway, she's
Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
24
1 answered this question. What's your next question?
2 MR. BIERWIRTH: Okay. Your Honor, I
3 believe I may - at this time, I have no further
4 questions.
09:33:48 5 THE COURT: All right. Anything else
6 you'd like to add, Ms. DeLeon?
7 MS. DELEON: I feel the facts of the case
8 speak for themselves. No further questions.
9 THE COURT: All right. Thank you.
09:34:0510 MS. DELEON: Thank you, Your Honor. May I
11 be dismissed?
12 THE COURT: Uh-huh. Any other evidence
13 for your side, Ms. DeLeon?
14 MS. DELEON: No, Your Honor.
09:34:1415 THE COURT: Any other evidence for your
16 side, Mr. Bierwirth?
17 MR. BIERWIRTH: Well, I'd like to put in
18 that order here -- actually, I believe here it is. Put
19 in the order denying the summary judgment.
09:34:4820 THE COURT: Orders denying motion for
21 summary judgment don't say anything other than the
22 motion is denied.
23 MR. BIERWIRTH: Okay. Well, I have the
24 summary judgment as well if you would like to read it if
09:34:5825 it interests you.
Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
25
1 THE COURT: Denied. It doesn't mean the
2 judge agreed with you. Just some fault in the motion.
3 MR. BIERWIRTH: Yes, sir.
4 THE COURT: All right. Anything else?
09;35:16 5 MS. DELEON: No, Your Honor.
6 THE COURT: Okay. I am reminded of an old
7 Woody Guthrie song called "Pretty Boy Floyd", by golly.
8 Pretty Boy Floyd was kind of a hero in Oklahoma because
9 he robbed banks, and banks were kind of mean to people
09,35,5610 at that time. Part of the song says, "As through this
11 world you travel, you see some funny men. Some will rob
12 you with a six-gun and some with a fountain pen." Ain't
13 that the truth.
14 And you're one of them, Mr. Bierwirth.
09,36,1015 How dare you rent something to somebody when it's been
16 foreclosed on and you've already given a deed to the
17 bank? How dare you?
18 MR. BIERWIRTH: I didn't. They have
19 not -- I still have possession of the property, and they
21 THE COURT: You don't have possession of
22 the property. Judge Cooper wrote an order that says
23 this order will act as writ of possession for the
24 property for the bank and that bank has now transferred
09,36,3225 it to somebody else, to the FDIC or Fannie Mayor
Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
26
1 somebody.
2 MR. BIERWIRTH: No, sir.
3 THE COURT: And you pretend that you have
4 the right to possession of the property?
MR. BIERWIRTH: I do have a right to
6 possession of the property.
7 THE COURT: Because it's been foreclosed
8 on and transferred to two other banks and your right to
9 possession is?
MR. BIERWIRTH: It hasn't been
11 transferred, Your Honor. And I have --
12 THE COURT: Well, according to the deed
13 records it has.
14 MR. BIERWIRTH: Your Honor, I have -- I
09:37:0015 have a book like this. And when Ms. DeLeon rented the
16 property, the bank was in litigation, as I told her
17 before she moved in. And I also told her that they
18 haven't had gotten possession, nor did they file for
19 possession or anything.
THE COURT: I think you're a liar and a
21 thief. Just to get that off my chest. I think you're a
22 liar and a thief. And she gets judgment in this case,
23 and I assess all cost against you. You can be excused.
24 MS. DELEON: Thank you, Your Honor.
THE COURT: I'll write you up an order if
Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
27
.
1 you want to stay .
2 MS . DELEON: I would very much appreciate
3 that.
4 THE COURT~ There ' s one for each of
09,42,2 0 5 toda y' s contesta nts. There 's a judgment for you that
6 says plaintiff take nothing and defendant have her
7 costs.
8 (These proceedings were concluded.)
9
,
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Cathy Mata , CSR
County Court at Law No. 1 Travis County, Texas
512- 854-9252
28
1 STATE OF TEXAS
2 COUNTY OF TRAVIS
3 I, Cathy Mata, Official Court Reporter in and for
4 the County Court at Law No. 1 of Travis County, State of
5 Texas, do hereby certify that the foregoing contains a
6 true and correct transcription of all portions of
7 evidence and other proceedings requested in writing by
8 counsel for the parties to be included in this volume of
9 the Reporter's Record, in the above-styled and numbered
10 cause, all of which occurred in open court or in
11 chambers and were reported by me.
12 I further certify that this Reporter's Record of
13 the proceedings truly and correctly reflects the
14 exhibits, if any, admitted, tendered in an offer of
15 proof or offered into evidence.
16 WITNESS MY OFFICIAL HAND this, the 23rd of
17 September, 2013.
18
19 lsi Cathy Mata
Cathy Mata, Texas CSR No. 6126
20 Expiration Date: 12/31/13
Official Court Reporter, County Court at Law No. 1
21 Travis County, Texas
P.O. Box 1748, Austin, Texas 78767
22 Telephone (512) 854-9252
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Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
EXHIBIT 3
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1 REPORTER'S RECORD
2 VOLUME 3 OF 3 VOLUMES
3 TRIAL COURT CAUSE NO. C-I-CV-12-002167
4 COURT OF APPEALS NO. 13-13-00411-CV
5 KB REALTRON MANAGEMENT IN THE COUNTY COURT
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7 VS. AT LAW NO. 1
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9 STEPHANIE DELEON TRAVIS COUNTY, TEXAS
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12 EXHIBIT INDEX
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15 On the 10th of June, 2013, the following
16 proceedings came on to be heard in the above-entitled
17 and numbered cause before the Honorable J. David
18 Phillips, Judge presiding, held in Austin, Travis
19 County, Texas;
20 Proceedings reported by machine shorthand.
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Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
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1 A P PEA RAN C E S
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3 PLAINTIFF APPEARING PRO SEE:
4 Mr. Kevin Bierwirth
13276 Research Boulevard, Suite 204
5 Austin, Texas 78750
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DEFENDANT APPEARIING PRO SE:
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Ms. Stephanie DeLeon
9 4108 Kilgore Lane
Austin, Texas 78727
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Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
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1 INDEX
2 VOLUME 3
3 EXHIBIT INDEX
4
5 EXHIBITS OFFERED BY THE PLAINTIFF
6 EXHIBIT DESCRIPTION OFFERED ADMITTED VOL.
7 1 Lease 9 9 2
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Cathy Mata, CSR
County Court at Law No. 1 Travis County, Texas
512-854-9252
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12 PLAINTIFF'S EXHIBIT NO.1
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~\.
• TEXAS AsSOCIATION Of I~LTOIl.5"
RESIDENTIAL LEASE
-\)$£cttfKTOR\.IlW~W«OAA£NO-T_ME'-"4(~Of1){£lxMs~f4IOS<*iV4:fQtA~1t!t
1, PARTIES: rhe paniel! lolhis tease ar.:
O'!U"A... ot4ll:o*_'d_Ji~j.,l~lI!t-noJ!i
_____________~----------------__--_____--___----__--__;and
..":y~",,,,m(.!:.t..i'''''d,,,d:L__-:-::-:-::;
tlli>c>vl'ler of ttl" Property, Landloro.: -Lt.;.bl.UI.1:<':..h';;;"'L..iiwCwo<;l\.I>,;..J_-Lff1l.lkl:i..,1.A",
Tenan\ts): Srt"'nhC1!lie
/
jI', PRQI'eRTY: !.aMlo,,! teasea to T9nalll !he follow Ing real properly:
Address: 33i:1S 6£r!fvie! ~4) 1'72<', ,:;.Itz.rq
""F;....________________________________
~!)alt~ dElllcribed 8$:_ _ _ _
in 77l;uhS
Hem.: County. re~as. together with 100 followiO:g Mll·real·property
___________________________________________________ ___
3. TERM:
•
.);\f>rimaty Term:TI)e [ll"1!11"'Y1"(Tljo! \WS!\ I~mlnalion not less then: (Chock "pry om) bo~,)
q (t) 31) Qay&l>efo$ the l!:xpiratlOn Date.
7!f{2} ,~ days before tile Expiration Data,
8. Ir thiS lease. automatically renew. on a monlft-to mon!h basis. II will tllnlitllJe to ,eneW on a mooUl·la-
monlh basis unlll e~her party prO'ides wtl~en nOli<:e of lermirn;!lon to the: Clner paft)t and the notice of
lerntinatioo Will bael1eclwe: (Check {lilly one box.!
'liiI': (t) on tOO last day of Ihe monlft folloWiIlS tha monlll in Which tho nOtice Is gwen. Landford is no!
r obIigIIled to prorate (I;1nl even if Tenanl surrandafS tlte Pro~rty befOre lite termination date..
D (2) 00 Ifte Qat. ,L.)_ ....hI4~IWI.A~IodJ;...t~JS'7...e::.tm:.u;eolJ"....Jt:
ilia owner of Ihe .PJ(lperty, Landlord,: _J.6.JJb(;JLI ..._~::::;-
; and
----------~-------------------------------
Tenanl(s): S:t'j"balUe Q.LpMQ
•
12. PROPERTY: Landlord leases 10 Tenant the following real property:
Address: .3~ ,?,Nie/
Ieg8l1ydeschbedes::_ _ _'
,l!JI:6tio.l 17k. .lFZrft
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
~ ~
The real property and Ihe non-reaJ.pJOPe!1y are coIlectlvety called lIIe ·Property·,
3. TERM:
• :t;$ Primary Tarm: .The Plimary term olllUs lease begins and ends as follOWs:
•
.
'11/ COmmencement Dille: o..umbe r ~ ;!2" If ExpIration Date: J).«m he r .31; :Jt)(2
St Delay of Occupancy: Ten@nl mUS! OC!:!!P), 111ft proOOIj)/ wjtI!ln 5 !layS aller lhe COmmencement Pate,
If Tenant bunable to o<;cupy the Ptoperty by lIIe 5Ih day after Ihe COmmencement Oa!e because·of
construclloll on the Property or a prior lenanrs hOlding over ofth8 Property. Ten;ml may \efl'IIInatlllhls
lease by {living. Written nolle\! to Landlord before 11111 Property becomes avaq,ble to bII occupied by
Tenant; and Landlord .wiR refund to Tenanlllle security deposit and any rent paid, Landlord will atialfl
rent on a daity bIIsls for a delayc:aused by conslM:\lon Q~ a prior lenant'sholding over. ThIs paragraph
dOes nollippty 10 Ijny delay In oceupancy caused by cleaning, repairs. or maJte.tel!dYljems.
4. AUTOMATIC RENEWAL AND NOTiCe OF TERMINATION:
A. TI1I$ lea.e I!\.Ikl!IIatlcaity ~nllWl on a month-to-monlh basl$ unl6$S Landlord Of Te,*,l pi'O\Iide$ lIIe
OI/Ier party lfdi1\.tn0llllce oj tarmlnllllon not Iee& than: (Check only one boX.>
.~
-
C (1)3Ddays beforelhe Explrallon Pate.
1i (2) dayS before Ihe expiration Data.
8, 111111$ 1.,_ 8III()OOlItlcaIIy renews on II monlh-to month basis, It will continue to renew 00 a month-to-
month basl$ until either party provldll$ Y!!iI1§!l notice or lermlnallon to Ihe oIhar party and Ihe notice of
.termination will be IIlfective: (Check only one box.)
'113": (1) on Ihe laSt day of Ihe month following Ihe monlll IIi which ilia 0IlIlce isglven. l.andIord Is not
r obI~ to prQltlle rent even if Tenant s9mtncl$rS t~ Property IIOfore Ihe IEtrmrnatlon dille,
D (2) on 1IIe date de$lllna!ed In the notice but not sooner Ihen30 days after 111& nob Is given and, If
necessary, rent WiIl.be prorated on a dally basis•
• crAA~111t).5.05
(" ,
Receipt1, Image 1 of 14
Page 1
"
•
C. Oral not" of !etmlnaljon Is 001 suf!je!eo! under any ciroumsta!)Cl!l. TIme is of the essellCe f~
providing noIi<:e of termination (strict compliance wilh dates by whieh notice musl be ~ IS
required); If a box is not checked under Paragraph 4A, Paragraph 4A{I) wID apply• •Jabox 1$ not
checked·under Paragraph 48, Paragraph 48(1) wilt apply.
5. RENT:
A. MgnlhtvRen!: Tenant will pay Landlorcj monthly rent.In the amount of S 1ii1f»'
. Clu!i(l9!!lb leese. The firsl run month's renl is duo end payable nollaler .
pr) for IiadI full month
.
Thereafter;. Tenant wil1 Qily lb. monthly rant 59 Ibat landlord receives the monthlv rent on or bafort the
fitSt day' of each month during .his luse. Weekends, hoUO?'_o_,1I!n
13. PARKlNGRULES:
_._. ._...._ •. _ _ _ _ __
Tenanl may not perm" more IIlan l/...-,... vehicles,. ~Ing but not limited' to
8U\Omoblles. trucks, recraaHonai vehlclell, trailers, moloicycl8S. aP-terram vehicles. jet skis, and boals, on
the ProP8l\y unless autho~ by ~8nd1ord in writing. Tenant may not park or permit any perscn 10 park
anyvehfcles.1i1 the yard. Tenant may pelIOn vehlcfes to be parked only in drives, 9&rag\!S, d$$f!lnaled
common parking areas, or In .the $tree! if not prohibited by law or ,n owners' association. Tenant may not
Stort or permit any person to store any veI)ldes on oredjaOllnl to the Property or on the street in (jcnt of
the ProP8l\y,. In accordance with applicable $lal'l lind klCaI1aws. Landlord may have. tOWed, at Tenant's
expanse: (a> $!IY Inoperalive vehicle on or adjacent to the Pithat LandlQrd provided to Tenant under 1hI$1etQpar'YCode.
(2) Tenant mll~t ,reIlnbul'Sll l.andlOrd all l.endlord's ~onable cQsl$ under Paragrapb 160(1) for
pacIIlng. rem.oVinS. slOring. and seiling the personal property iflll InIhePropeny cafter sumI!\der or
,..bend!jnment. .
11. PROPERTY MAINtENANCE:
•
A.Teoom's '$ime(il /3!!!!!OIl!llbIlUles: Tenanl, ~I Ter1l!nt'sexj!etlSe. must:
(1) kGllP Ihl! Prope~ ~alllll)d sallilary. '
(2) prOmpUy dispo$lI ofaJl fjatbagelll appropriate receptacles:
(3) $llpply and Change heaIIng';!Ind air c,onditlOnlng fillersst !easl once II montl1;
,(4) ilUji\lfY iIIId "'pIUCe alillghl bUlbrl;-l\tlore$CVllnObe$,-wtd"allerl4$"tQ~iI 4iItil¢fbl$.aub6ii
mQlIOXide. ~rs. gat;Jge~door' \!peners, .caRmg Ian r&l110t8s. ,and o\l1ilr dfiY/Cil$ (QI I/tf, $MI8
\)1le ,nd quality that"", Ih,lhlil, Prilp~ on Ih!! t;:prnmencement 0111$);
,(S) lnlI\J\taill approprlat!J levels of ~iICe$sery Chemicals Of, matter In any water'$Ol\enat;
(6) take- actiOn'lo picmptiy elfminale:any dange""'" condition on the Pr 0PIIJ1}';
(1) Iake,aIl necessary precautions 10 prevent broten walei' pipes due 10 freezing Qr other C8\jses;
(6) repla~e anylostormtsplacedkeys:
(9) Pg; '~.~";iel
•
(2) Landlord Is nol obligated to complete a repair on a day other lhan a businiSa day un~
required to do $0 by the Property Code•
C. PlIyment of R!!~"~ts:.Jel1llnt will pay Landlord or any contractor Landlord directs Tenant to
pey, the f"ust$__ '2 ~ of the cost to repaIr each condition In need of repalr,.nd Landlord
will pay the remainder, except for thel'ollowlng conditions which will be paid as foOowa.
(1) Repairs Ilia! ll"'dlord will Pay Enth,tv: Landlord will pay the ontire cost to .epalr:
la) a condition cauBlld by the Landlord or the negligence of the Ioandlord;
Ib) wastewater stoppagG$ or backups caused by deterioration, breakage, roolll, ground
condition, faulty construction, or Il1/ilfuncllonlng equipmenl;
Ie) a condition that adversely affects the health or safety of an ordinary tenanlwhic:b Is IKlt
caused by Tenant; an occupant, a member of Tenant's family, or a gual or Invitee of
Tenant; and
(d) a condition In the follolYing ilem~ whiCh Is not caused by Tenant.or Tenant's negligence:
(1) heating and· air condilfonlng systems;
(2) water heatel'$; or
(3) waler penetration from structural defects.
(2) Repairs thai Tanant wll! Pay Entlmlv: Tenant will pay Landlord or any contractor landlord
d.I_I. Tanant to PiIY the entire .cost to repair.
t4 II ,nt!tlsd to 'fAiva, landlord may sell or dfsoose of any 'liz'"
property In 'accordance with the,prgy!slons of §§4.Q45. pmpgrty Code.
• 24. $UBORDINAnON: Thi$ lease and Tenants leasehold Interesl are and wlhbe SlJbject. subordlnele, and
In"rlor \9: (I)eri'! l/!In or encumbrance !lOW or later placed on lIIe Properly by landlord; (U)811 advances
m8de under any such lien or ellC\lmbrance; (lIQ l/ieinlerl)$t payable on any s~ch lien or encumbrance: (Iv)
any ana $llliiliMlli arid extiI1skliii or any iluClilien-oTiltlcumbrllrice:' (vlillifij$TiiCIiVi covenam;arid (VI)
the riglll$ of any owne.-s· assocIalion affecting !he Property.
25. CASlIALTV LOSS OR CONDEMNATION: Section 92.054. property Code govetnsthe rights and
obQgallOna of the pal1les regatdinge ceSUalty less 10 !he Property. MY proceeds. payment for dluna!lGs.
$e\llein_ awards. or oiher SlIilIS paid because ola casually 10" to Il're property will be landlOrd's sore
JltOI!I'rty. For the purpose of !hlslem, any coodem nation ohllor a pari or the Property 1$ a casually Joss.
26. SPECIAl PROVISIONS: (OQnot Jnsert. II lease-option or 'aas,,·pUlChaI$l1 c;I_WiIhouf the sssls/enca d
legll! cOU/iseL Spe¢ill! obIigallons lIIlel IIIIIlII/liel,lunder $1l1tut9 apply-to :sucll trllll$BC/lOlls.j
•
Receipt 1. Image 10 or 14
Page 10
,
ReololtnGolLaa........,.;ng: ... '3 31£ $jazalio{
27. DEFAULT:
• A. If Landlord raas to comply wiUllllis lease. Tenant may seek artf reller provided by law.
B. II Tenant falls to ~mely pay all amounts due under Ihls lease or otherwise ralls 10 comply willi IIlIs IOllSe.
Tenant wUI be In default and:
(I) landlord may terminale Tenanl's right 10 occupy !he Property by prQVlding Tenant with lit least one
day writlvil notice 10 vacate;
(2) all unjlald rems which are payallle durtng the remainder orlllis lease or artf tenGwlll period' will be
accelerated wllhout notice or demand;
(3) landlord may exerCise landlord's lien under Paragraph 23 and any other rights under this lease Or
the Property C¢e: and
(4) Tenantwlll be liable for:
(a) any 100t rent:
(b) La!ldiorcr, cost of releHing the Property InCluding but not limilld to leasing fees. ~
feeS, u1iItty chal'llGS. ami other fees reasORably ~S8ty to reIeIlhe Property:
(e) .repaIrs 10 the.PlOperty for U$e beyond normal weer and tear:
(eI) all landloRl'a com auociated wlIh eviction of TtnI!nt.lnCluding but noIllmltacI to atIOll18)I's
iees;;toIIrt costs. costS or S41V1w. and prtjUdgmentlmeresf; .
(e) alll8lldio!li's i:oslS associated wlIh collection or e",ounts due .under ihis.lease. fJlduding but noI
fimlte4 to coIlectlOn fees, late charges. and returned eheck chaI'll8S: lind . ,
(I) any oIbeI' ~ to wllieh LJII(\lord may be en\i1l8d by law.
C; Nolieeto vacateundar Paragraph 278(1) may be,by 8I1y m~arispermittcr9perty 10 acceptable tenants and reducing Tenanfs Ilablllty accordingly.
~.. EARLY TERMINATION: This lease tJeglnson the Commencement Date .aI1!I ends on the ElcpitatiOn date
---_4'IA'AIe'Ii,Kl-{l) ' "....iIId "Ader Pel'agfapll4; ~1j exlende6 b)'wtitten'lI9teemef1t-cflhe-pe'Ii\I', or fIIi),"",irMIed
earlier ,under Pa~ 27, by agreement 01 the partie$, appliCable law. or llils Paragl\!ph28.
A. M!lj!ary.8ndFamiIV ViOlence: Tenants mIIf haVe apecial Slalulory rights to terminate IhlllIease'earty In
certain ~11uations involVing famHyvlolenc8 or a military deployment orlransfer. '
(1).Ml!I!i!x: If Tenant is or becomes a servicemember or a dependentofaservfcemember. Tenant
may tennlnal8 UiIs JeaSe by delivering '10 Landlord a Wl'i1l8l1 notiCe o(tenninallM and 1i<:Ojiy of ~
,app'?f"/ale goviV!lII\etI\docum~1 prtMdlng evidenoe of: li~liledIQ.all.mprJ(I.'fi~d · a replacementlenanlUn!ease wilh -Iermseppfovedby "andlOrdi orle);)n
3sslg,nri\c"tot!hl$le~sein lIfotmapprQvridby lilfldlord, ' ,
(4) At inEitlthe Ull'lplo!d ;lgre". ",. permit ana,signee, subtenant. at n!jIlacementlet>ant to occupy the
Properly, Tenant Vin,' pay WllldlQrd: ,
(a) l ! T-eMQfProcures Il)eass1gnee,-svblenalll. Queplac~menne"'intwifb ~rm~S:(JJ
Q {QS '...• .• . , , "
O\ii)_._ _% «OO~',s-mol1ll1 t~l\t\lll)llllea$slgn¢e;,s\iblenal)t.or repi;!cem~nll,",.lll i,to pay~ .
(blli k~n(jler" prOJ:UrGS l~a$~l!Ine!l•• ~titern",t. ¢t repla<:$j)!)nltMilllt:
o {i) $ •
-0 .(li) ---.....;..%cl·ooQ·s-rnontl\ ront that lI,-ellSsj~Me.-&ub'leMlit. orreptacen!enlternlJlt is.lopay.
(5)Untess~KPreS$iy.~"'t~olhetwise ;~ap assI911men\ -of'subi,jasa, T',"~ will net bif.reieilseO from
i'(.li)a~I'so~!II!\r.QhS \lnd~fthl$ leas6'b!te~l.Is~ Ofal)a~$lpn!ilentoi $~6tei!Se•. An l!SjIl!)omjlntc{ tl1l$
It!as/!,or II: $ublea$liol'thi$".Iease wIthout \:andllltrt ofwblch Ms. DOlLeonwoulll ~sl!~YsbOW IInto
thO! Court as fullows~
L SliMMAltV
The Flaint\ff ftfed an evi()ffon suit to ~i\1 possession of 3305 SRlUliel Drive, Aufltin,
TI=S 78759 {~"l'roJlertY"). HQwevllr. it neither owns the Property nor dian b4Vll any
possts$GQo' interest in i~ at the time of th" P\lrpol'ted "lellSe." 111e urtdisputed fact is that tb!:.
";
B{a:jutifi" lacks standing to bring this acfion bdcausei~ was nllto landiotd (It the lime; of thc.t
purported "lease". 0Jt Apiil 21, 2011, the 200th Judicial District C!>urt of TI"!lVIS C.ollllt;Y. Texas.
entered an proer alloWing Tm 111e rndependent Bankers Bank {"Bank"} to flll'eoJo$e on the
Property>, On J1me7; 2011, .the Property ~ foreclosed upon and $Old.lO:JJjIlBank m$king the
113
•
• wlllch ttllo IOllger owaed • to the Defundant approximately silt menths later. Then under the
guise: of the "ieJ!l;e," the Plaintiff entered the Jlrop!!r!y and exerci$ed its "rights" and ,rem£wcd
amnO/[_ty $8,000;00 worth ofpr~rty. Because there WJis tlovlllid lease. thel'Jainriffstole
from the Oefl:lidant MOreimpertantly. becau~ the PlaintJrrwaa not a laMlotd it doesllOt'have
atan~ing te pursue: this lawsuit. A:s SQIlh, the CoU)'t sl;tollld dlsmi'sJ thjs ,actien with prejudiCe
because no atnendment can cure this jurisdiction defect.
IL l'ifOTJON TO DlSMlSS EvtDlNa:
ltI support of this Motion, Ms, Deleon relies upon. and incorfll)rates hy reference tbllC
folltlWing;t\vldenile, whicb iscontslned.lnthcAppendilli fiI~ b¢rewlth.
lilxlJmrrA The,200lb Judicial District CIlUitOrder AUoWill1! FOtcclosute
TheSubstitute'T(IIStee's peed
The Purported Lease Agmrnent
~rrJ) T~Home Equity Security Instrllment
EJalllIlTE TTaVis County Ctillftal Appraisal R¢port {In 330S SP!lniil'l DriVe,
Austin, Texas'lB1$S1
Lettei'evirleru;mg Plalntitrs ]>ossessiofi of Deftndant's !>foperty
Mil Notice teV/lC8te
EX'IJDlttG Thlllustib!: of the Pe:aee O!:der Dismissing'Suit WithPna'udiee
EX,ullrrH Mfiila¥it'OfMatthew J. Wagner FOr Attorney F~
EJalIB1TJ Affidavltof Amanda Ramos
ExmarrJ Affidavit ofLindaHillksand Redacted .Billin& Rl!cords.
m. FAe1'UAL nA'Cl\GRQlIl:ID
• •
A. Tbe 1'rolRrty
On lum: 2'4, 2005, Kevjn 6il1rwlrtn executed a Texas Home Equity Sec1llitll TnstMnllllt
("Deed'') S(ll:Uring '!he PropelfY! Pl!tsUant to. the tenns oHhe Deed, ift!le.Projx\I'\y is sold IInder
the POWer 1)f Sale provisiol) lUIQ not surrendered, the borrower "shall ·~· ./I tenllll~ at $ldfera!We
cand tfll~ybe tllml)veby writ l)flmsses~ion Ol'otller Qtiurtproceeding."~
B. :rile DlstritWOU:l't (1l1!1e
On April 'II, toll, the 10011> JUdicial District Court of TraVis Couoty. Tex:as issued. final
orQilr'lll1owml{ the Bank tll fureel~ on tile Property.] This .oase is currently on l'lPpeal
pt:eSilmao1y based on the trial routt's denial of ~t\V1n BierWirth's request fur teave to file It tate
response 10 the TIB'slt1Gtion fOrS\lll)mary judgmllnt:.t
C.The FhrecIO$\lre~And The N'elf ()wiler
On JUne '1, 2011, the 6ank Jo~losed or! tile Property.s Pursuant to tile Deed,K:eVin
Bi~rWittll. lIS well .lIS any person residing1at the Property, .became II tenan~ lit· ~l;Ifferance.6
MQf'eOvel'. the l'ravisCotjn~CeI!tnU Appl'1\iwOistrict's.teeords retleQttlla'ttbe Bank-not the
l>!aintrff-!'lWilS tft~ Property. 7
I).
•
The "Ulise!t Agreement
On NQVn pli!portedly ¢Iltered iiito 11 l¢llSe
agreement for tlte Property,1I HQwever, at tIIis time tile pktlntiffdid notown tile property or hold
1liiY possessory interest in it bCCl\us~ oEtlte foreclosure sale on June 7, 201 t. Therefore. the
P]aintiffliad no legal authority tounnat~raJly lease: the Property to Ms. DeLeon.
E. Tbe Theft of Defend"nt's Property & Notlee to Vallate
On January 17.2012, the Plaintiff c:ntered t~e PropertYlltld rook approximately$8,QOO.OO
ofMs. OeLeon!s\lItIdher mather's property under a non-existent' landlord's lien. AlfiJIlg with
helpin&itselfto the'peJ$QJl\U propertYltppsted~ 110liceto vaeatelelter givmg the Dcfel\dlll\tonly
t day to yacate. 9
F. The Justice OrThe Peal» EvIction Case
Ott Febl'l1ary 2, 2012 the Justice of the Peace dismissed Plaintiff's ,evlctio'li action with
pt\ljUdice.'o
IV. LWALSTANDA.Rn
"tIie pIi!pOse ofa plea to jtniSdiction is to dismiss II cause nfactiM without regard: to
wliethertke olaitllhas merit. mCl7Id 1St; 1>. )Jlu~, 34 S.W,ld 541, 554 ('fex.2QOO). The Court
must decidewllether ll1e plaitttiff III\S:l!fflnnatively demonsttJl'led IhIs coUrt's jurisdiction to hear
i1i'b sult. cased ilUtlie facts aJlesed b~ plaintifij and whl;n JI~ssary to moIve jurisdictlQllal
fl!Cts,(lI(~ldence slibmittill:i: tly the J>ilIfies. Se~ Stqte v, .HoJl~'J,7.·1 S,W;3d 639, 64243 (I'ex.
';.Ofl''I);. Jjlattdlnd~p. $ck Dist.l4 S. W.3i:1 at 555; set, e,/l-. State v. Sledge,. 36 s.w.ld t52, IS5
•
(ftll.App.-HlllJSlOn II 01 mistJ 2000, pet, dettitd) (trial OOllrt oondlicted lleari~ $ld ~ived oral
testiM'9ny, affidavits. exh~ifS;!lffd~tlpuli}tl~JIll).
St;mljing is Iroomponent ll~ subject Matter j)Jdsdiction and must be resolVed. by ttre Court
prior io this !;!1st moving any fbrther. ~e Texas Ass 'n(olB,us, Y. Texps Air CIiIWoI Bil, gS2
S.W.2dA4J),443 (Tex. 1993).
V. StJMMAllYOF ARGUMENT
The Plaintiff's law suit ~IlQt!ld be qismissed Witlt prej\ldiClt lImltls!! it _ lWt· ha¥!!
standing pursue ~e .ction. The .I'lainliff was not a landlord ~ause.it old not hold a PO~$ory
interest in the Propetjyat the lime of the PllfJ>orted. "lel1$e," As suCh, the Plaintiff !)at\not
estabJi~ an ;essential ~emel)t llf its forcibledetainuaotion - the..Llmdlord-Tenant l'tIatlQllship.
~ellause IlO AIllendment ¢!Ill CIlre ibis glaring juriSdiet/llMl ~f®t Plilintlff's IaWSIlIt ~ be
diem~ed with prejudice~ MQre(lver, bellause M:;. OeLelln bad to hire le~ n:presentatlon to.
defend tltc.fotc.iI)l~ detainer actiol\ inthej~~Court an849 S.W.2d 373, 377 (Tex:.AjIp:.Houstoil [14111 Disl.] 1993, no wnt) (no
privity}; Gr(fTm v. Reyrrolds, 10:7 S.W.2d 634, 631 (Tex.App.-T~arkana 1937, wrU:dWmd) (nol
assignable). As long as:.lbe deed of trust states that the puwbaSer&comes a tenant at suft'eranQll.
"
!bat putCbaserofreal property who IlOlltinuestO ocCupy the property after default sndforeclosure
is a IeQoot at sufferance. see Elwell Y, CQuntl')'Wide Iloule Loans, Inc'$ 261 S.W,3d S66, i'68
On Jwte'l,201l, the Plaintiffbecatne a tenant atsutrerance beeause oflhe Wn!c1osure
.sale. II As such.lbe Plaintiff never held a 119sseSSpry interest inlhe.Pl'oPIII'IY at the Iime>of the
purported "lease>!. Theretbre. l>laintlft could not have legally .leased tfIe Property to Ms.
D\ll&Qn.
• •
B. r~l~titt Was Not A Landlord At The Tim~ Of' The PutpOrted Lease;
T...,
TherefOle, hDotS Notllave StanalngTc>:l'ursue Tbe Forcible Detaiiler Action.
The Plaintiff W8SfiQ! a IMdloi'd at the tinieof the purported lease; therefore,. it: does not
h~ standing to purs~ the fQttlllle d~er action. In Texas, a llIndloro has to prove the
foUI'!W$ng essentlat elements to SU4lcelid on a forcible detainer aotion: 1) there 1s a llIndlord.
tenant relaOOQhip betWeen tbe parties, Z) the tenant 1:1111 be evieted because the tenant is a
holdover t$lant. II, tenant at will, a tenant at sutferan~ or jJ tenant of a ~'Who acquired
poostiision Jtr.forclble entry; Jl~ the lami/ord made a proper demand for posse~ 4) the time
pedQd to vacate.th~ proelittybJIs ~Pired, and 5) the tenant has refused to surren~ possessionio
the Ihndlord. TIlX. PRoP. £QI)E §24.002 (elements 1.-S' (emphasis lidded). If there is no
landinro-leTll\llt relatlQosfli,fbelWel:n the parties. there cantle flO fot'eible detainer action.
1. there Jj11l$ 1101 II Ililldlord-ttllflllt I'dtitwn$htp ht!ilw!t1l 'lie PlailltlJJ.,,1/1I M$,
J)d;eon.
As detailed more~larlyabove. the PllIlntiff.llWUIot de;ntQn:strate that KWlIIf. Jan41qrd
~SCi .at the time of the "l~i(dJd n9t oWli apoSSCS$Ol'1 IJlt.,rest in. the~.
Specltlo8ll~ DY way of the forecloll\ll'e' sale, it was at. most a ~atJt at sulferan~,whll1h it nOl 11
poslless\lty lnfer~ at aU. BecaUse the Plaliltiff was notll' landlDnj: at tIw tim~Qftbe "lease~' it
does.lIIlt have slanding to pursue tbJsll~i.on.
C;· .~ .DI!LI!OD IS Entitled To ~Qldlle AttopJe)' F. . A!ldC~ Of CQurt
ttndl!rTna; R~ot~h PrOcedure 149 And '152".
Ms. DeLeon is entiiled t\l reasonable attomeyfire~ artd-eoslS of COUtl unclCt Texas Rules or
CiItIlPloeedure 149 ("Rule 749'') I;Illd ~2 .C'Rule 1S2~), S.1lt! TIlX. It (:",.1\ 14'. 752.
$p«lfllllllty,under Rule 749 RbrealtrOfl:i1> t~ulred \0 POst bQnd to .1Il! ~ :tQensDrjl thl!t~t
will ~ute his appeal with etfeJ;ll .anjl pay all 1lO$t/l lind _ages wllldl mal! hi:: lIdjudged
offue
Pap7
• •
bend tn im;Iude all items enumenrted in Rule 152. Id Onaer Rule 752 the dalltages that are
recaverabfe includll that· ()f (IlaSOnaDle and n~essary attomllY f()ell. In the justil:!: and .QI)unty
9Qur:/$, TBx~Qw. P, 75;2; #ll dim Krull v. Somora, 879:S.W:ld329, 332 (Tex.A:}lp.--Houllt, submitted,
HAlt A'l1'ORlllEVS,.P.C.
{Sf MtTrHT:;W.I,. W'&GNtR
Ni¢h~fl1l! t\!.l~ fllll!
State Bm:No.:24069863
RQIl SI!:tijl!
State BarNo.: 12t28'400
Miltthew r. W~
State BarNo,: 1401$232
701 Brazos, SuiteSOO
Austm, Tllxas 78701
pbQlle: {'12) 551·;;041
fax: (S12)692~2833
AT1O:RNEY$FORDlFENJ)~
CERTIFICATE QFSEaVICII
TIle undersigned certifies thatthe> ~mg was servCli.on all.counsc:l Qf ~ni Qll April
n~20t2,
EMAIL
Je!€klly
~yL!:lg;U Gro~p
46oS: South La!JuU"Blvd.
MtstiU. T1!XlIS 78745
Matthew J. Wagnet'
.,
1
• MR. WAGNER: 'le,s,
•
1D1'll:" Henor.
5
2 I'd like \::''0 nail li18. Oel,eQn to the stand ,
3 T'!!'S couar: Okay. M$. peL-eon, e:ome an up .
4 ~all I l"lIve yt;!$tl raiSe£> y.ouir ri9ht hanG!.
5 (W i t.ne-as SWorn I
6 THE COUR,T : Please ceme up andh:ave <1 seat::.
7 1ifEl. •.Wl\G.NER; Your Honor, WQuld YE:>U like Ille
ll. t.Q stand, 5:\:\:?
9 T.na "·001'1.'1': You Q.a:n ai t .
10 S''l'EPHAIHE I.1t.1..Wl'l,
llhavin·g been ". ,·r"" duly swC);t'Il, t;'est.ifieaas. .fi>1l·0WS;
12 04.l!ElGT E~i\MnIAl' I@N
13 BY MR. WAGNER:
],4 .9 . M,s. DeLeQn~ pleP"'l:'t>1?
22 ~. tt )!t'~t a .l1 my t.e,,!:ui~li'ements, my d:auqhtex's
23 s¢hool ciis.triot, my price range, and Qavinq ttrree
24 bedrGOllls so hila'!:;
• did ,
•
A. Kev;in lUez;wi,rth.
Q. Md how do you know tha't he signed that
do.c:u'lli ent '<
!l ' 1\.. lie s;i;g,n ed it in front Of me on that day.
i MRc. WAGNER: 'leur IIl'>nor, ! Inove to
9 irl'tr"O:d;Uee Itla:l,J1.tiff' s Exl'\:ibit Nwnber
9 . jPlain,t i;ff's Exh·ibit. No . 1 offe"ed)
1(' MR, l"ELLl(: !'to Gbjec,ticO;l:\,,' 'l'O),)!? Honor',
11 THt COUR'1': .1 will he admitted.
t?laintiff ' s EKhib-it No.1 adm.itted)
Q. 151' 1';\1t. WAGNER) And pripr, to e;nt~lJ';inq l.nto
14 • th'a,tlea's $, lla~ yo:\! ~ad ally Ci;lnversatiolls wi th the
15 De,fendant, Mr., l:!Lerw.irth1
A.
o. And w\'lat were t,he Conte-n,ts or -- whal): were the
1,8 cOl'll!ientstho,se ¢env.ers,ati':'lIl;;?
19 'On t"ll.ceclay that we. actual..ly sh()wed the
he had mentioned thact: the ,1'>'<;>1.15e wa'l$ in a
ll>roce·$ s, and thlIA.tm; DELEON
lJIIpnllant artdAppt!Uee
I
§ TRA~ cOUNTY TEXAS
MUIlON TV WITIIDRAW
Mpvant, Sal' Altotn~; r:c. and iis attom~~ ("Hall"} files its MQtion ta Wifkdraw as
~Q~ael fOI'l>efCndant, S!ePhaitieDe:lAon. [n support, Hall snllWs th~ following:
J. l'r;()ted\ln,dJlbtory
~ ,',
,
L 0)1 Febmaryl. ~012. Kbtealtl'on Managemenes ("K~ltron") evMio~ pro~ was
disl'/lil;.sed.\ly tile JMiee ~thl!PeJi'ceCourt (fue- "JusticeCourf').
on this mo\ioll'.
6, ~y.ant hils.$en'ed Ilefandantbycertlfied .mllil IIlld.t,eguliIl'm1li1 at her~as1 ~adQress
,. -". . ;,.
.
_: _._c_ ..
.
":0- .- . -.
. ......., . . ....
. :". ...... "
ali: i~dic~ln tbe~rllficateor:1liSf known address.
MoV!lnt Ims notif«!d netenifartt of its intention to withdtaw~m tJli~ CI!$\l and has
inf'lfl!1~ Pefen&l)tbrfietriglitto !:ibjellrintift
.AT LAW HI
S1l1:PHANlE DELEON
Dereltliant
MOT'lo.N rOR POSSESSION OF PROPERTY AND VN~A1D lU)NT
COlvlES NOW, KBREA,LTIWN MANAGEMENT. by and through its agent Kevin Bierwirth,
li:IIdfiles this motion for ttiaJ denovil Seekil)gjudginentagainstElefen4lmt s~~ .PeLeoli for
pos~O!l'l)fhis re.nlal PI'()PetiY and unpaid rent t~78150
I ,
ST:A:TE OF TEXAS }
}SS
TR.AVis COUNTY }
AFFIDAVIT OF BUS:{NESS RECORDS
I, Kevin Bietwirtb, aftllSt that lam M agent for KBREALTRON MANAOOMENT. That
1 Wl\S presetr\ ·when Stepllanle DeLeon signed It lease til tent property at 3305 Spaniel Drive.
Austin.: TJ!; 18159;
I ean attest that during her stay in the property, Ms. D¢Leon di\i not pay the ~ty
depoSit nOrMY rent what5llever.
(gave Ms. Del-eon notice to pay" !IS .pe~ the lellSe, !lI' I would 1.):e f~d to lllI:C'Cute a
Landlord 'sLienandseize personlil property J!1lieu of payment,of !j;!n~; Ms. D¢leon ignored.the
Notice, .1 enlered the property arid' fuolcsevera:l items in person;d property, i~udmg II; wasller
and.dQ'e; and'three CQmputets.
Ms, 0e1l;on gcYer redeent~ Ule property and refused to abandon the pte!nises.
It w,alI' necelJSllrY forme: tarem a storage unit in whlchto store Ms. DeLeon's personal
property, pending herpaymenHlfl'ellt.
Ms. DeJ;;oon. at S~ point, abandoned the property, Without notice ton», tllld atJer
kaming, of tJ!e Abandonment, Iblld the prop«typainted. cieaned and fixed to the GPndition.m
which: it ·was~ the·tim.e ofMs; DeLeon's octlupancy.
lJeclluse of the diffieu!tles 'caused by Ms. Deleon Md her attorney, it I1l!$ been llecesSarY
for me to ;engage thec!re~!les mllli attorneY to attempt 10 evict her lind deal with the ret;di!U~
1IIl1i01lS Ms. DeLeon wok in order tooc~upy the prQperty tentfi'E!e.
1 am aware !bat KBREALTlWN MANAGEMENT paid $2,500 retainer for attorney
&er\7i1!eS to assist in the legalities in which Ms. DeLeon e!lgl\g~.
It was my job tIT ke\lJ1 a.t'Ubllitlg rota! af.the expenses incurred in the 1~ of the~rty
anti
. . ...."... tp e'l'iet
att""'''ts . ' """
"",. DeLeo. n -~ , . . "·e .~
AI", expe""
. ~"""'hed'
'Wr'" '"""" .
to this Affidavit is:true 1Uld
C