Dana Dutschmann and Kevin Bierwirth v. Federal National Mortgage Association ( 2015 )

ACCEPTED
03-14-00561-CV
4396218
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/6/2015 10:45:40 AM
JEFFREY D. KYLE
CLERK
03-14-00561-CV
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS OF TEXAS AUSTIN, TEXAS
THIRD DISTRICT, AUSTIN 3/6/2015 10:45:40 AM
JEFFREY D. KYLE
Clerk
DANA DUSCHMANN and KEVIN BIERWIRTH,
Appellants,
Vs.
FEDERAL NATIONAL MORTGAGE ASSOCIATION,
Appellee.
On Appeal from the County Court at Law No.2
Travis County, Texas
Trial Court Cause No. C-I-CV-14-006351
APPELLANT'S BRIEF
Kevin Bierwirth
13276 Research Blvd. Ste. 204
Austin, Texas 78750
(512) 825-0331
1
IDENTITY OF THE PARTIES
Appellant
Kevin Bierwirth
13276 Research Blvd. Ste. 204
Austin, Texas 78750
Appellee
FEDERAL NATIONAL MORTGAGE ASSOCIATION (FANNIE MAE)
Counsel for Appellee
Douglas G. Dent
6836 Bee Caves Road, Bldg. 3, Suite 303
Austin, TX 78746
2
TABLE OF CONTENTS
Identity of Parties and COllllsel.. ...................................................... 2
Table of Contents .... .. ... ... .... .. ... ... ... ... ... .... .. ... ... .... ..... ... ... ....... ... ...3
Table of Authorities ....................................................................... 5
Statement ofJurisdiction ............... ... ......... .. .. ...... .. ................... .. ..... 8
Statues, Rules and Authorities Relevant to the Case ...... ... ...... ... .............. 8
Statement of the case ..................................................................... .11
Issues Presented .. . ... ... .... .. ... .. ... .... ... ... ...... .. ... .... ... ... ...... .. ... .... ... ... .11
Statement of Facts ... ... .. . .. . .. .. .. ........ .. .. .. . .. . .. .. .. ...... ... .. ... .. .. ........ .. .. .12
Argument and Authorities
ISSUE 1: Whether the two year limitation period of Texas Civil
Practice and Remedies Code §16.003 bars Plaintiffs forcible detainer
suit for possession ofthe property ...... . ........ . ...... . .............. .. ....... 13
ISSUE 2: Whether the use of a 310 writ of possession was improper.23
ISSUE 3: Whether it was an error of law when the Trial Judge
did not set a supersedeas bond .................................................. 27
ISSUE 4: Whether it is Judicial error when the presiding trial
judge, Honorable Joe Carroll did not sign the Judgment order. ....... . ..... 29
ISSUE 5: Whether the issuance of a Writ of Possession from County
Court, which was issued prematurely denied Appellant of due process of
law ... ...... ... .......... .. ... ...... ... ....... .. ... ...... ... ......... ... ... ... ......... 30
ISSUE 6 : Whether in the Emergency Petition for Writ of Reentry hearing,
the Trial Judge misapplied the law ............................................. 32
Conclusion ... ... .. ....... .. . ......... .. ................... .. . ......... .... ..... .. . .......... 37
3
Prayer.. . ... ...... ... ......... ... ... .... ... ....... ........ ... ... ...... ... ...... ... ... ........ 37
Certificate of Service ... .... , . ... ... ..... , ... ... ....... .. ... ..... , ... ... ....... .. ......... 39
Certificate of Compliance ...... ... .. .......... .. . ......... .. ................... .. ....... .39
Appendix
4
TABLE OF AUTHORITIES
CASES
Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar
Corp. of Cal. , 522 US. 192,201 (US.S.Ct. 2007) ........................... ....... 20
Boykin v. State, 818 S.W.2d 782, 785-8 (Tex. Crill. App. 1991)(en banc) ..... l0
Brown v. EMC Mortg. Corp. 326 S.W.3d 648,653-54
(Tex.App.-Dallas 2010, pet. denied) ....................... .... ....... .. ....... 24,25,27
Cail v. Service Motors, Inc., 660 S.W.2D 814, 815 (Tex. 1983) ........ .. .. ........ 15
Caminetti v. United States, 242 US. 470, 485 (1917) .................. ... .......... 24
Coinmach Corp. v. Aspenwood Apt. Corp., 417 S.W.3d 909, 919
(Tex. 2013) ............................................................................. 17,19
Cuellar v. Martinez, 625 S.W.2d 3, 5 (Tex.Civ.App.-San Antonio
1981,no writ) ........... . .................... . ...... . .................... . ......... .. . ...... 13
Elwell v. Countrywide Home Loans, Inc., 267 S.W.3d 566, 568-69 ........... ... 14
Fandey v. Lee, 880 S.W.2d 164, 168 (Tex.App.-El Paso 1994, writ denied) .. 13
Federal Home Loan v. Pham, Crawford Block, 1-13-00109-CV
(Texas App.-Houston [14th Dist.] 2014) ................................ .... ........ 15
Goggin v. Leo, 849 S.W.2d 373, 377 (Tex.App.-Houston [14th Dist.]
1993, no writ) .............................................................................. 13
Johnson & Higgins of Tex. , Inc. v. Kenneco Energy, Inc.,
962 S.W.2d 507,514 (Tex. 1998) ..... . .................... .... ......... .... .......... 20
Kennedy v. Andover Place Apts., 203 S.W.3d 495, 497
(Tex.App.-Houst [14th Dist.] 2006, no pet.) .......... .. ... ...... ............ ... .. . 17
Marshall v. Hous. Auth. OfSan Antonio, 198 S.W.3d 782, 787 (Tex. 2006) ... 17
5
Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 at 828 (Tex. 1991) ... ... .20
Rawlingsv. Ray, 312 U.S. 96,98 (1941) ............................................... 21
RepublicBank Dallas, N.A. v Interkal, Inc., 691 S.W.2d 605, 607 (Tex. 1985)..15
Rogers v. Ricane Enterprises, Inc., 930 S.W.2d 157 (Tex. App.-Amarillo,
1996) ... ... ... ... .... .. ... ... .... ... .. .... .. ... ... .... .. .... ... .. ... ... ... ... ... .... .. ... 14,15
Sanchez v. Archdiocese o/San Antonio, 873 S.W.2d 87 (1994) .................... 15
Trail Enters., v. City o/Houston, 957 S.W.2d 625, 631
(Tex.App.-Houston [14th Dist.] 1997, pet. denied .... .. ..... . .......... ... .... .. ..20
United States v. Missouri Pac. R.R.Co. 278 U.S. 269, 278 (1929) ............... .24
Upjohn Co. v. Freeman, 885 S.W.2d 538 (Tex.App.-Dallas, 1994) ....... .... 14
Will. v. Bayview-Realty Assocs., 420 S.W.3d 358, 361
(Tex.App-Houston [14th Dist.] 2014, no pet.) ... ... .... .. ... ... ... ... ... .... .. .... 17
Will. v. Deutsche Bank Nat 'I Trust Co., No. 05-11-00434-CV,
2012 Tex. App. LEXIS 3352 *5-6 (Tex. App.-Dallas, Apr. 27,
2012, no pet.) ............................................................... .. . .. . ......... 21
TEXAS STATUTES
Tex.Civ.Prac. & Rem. Code §16.003 ......................... .. ........ .. ...... 8, 11, 12
Texas Civil Practice & Remedies Code §51.012 ......... ... ...... .. . ...... ... ......... 8
Texas Local Government Code § 192.001 , ................................................ 8
Tex.Prop.C. §24.002 ... ... ... ... .. . .. . ... ... .... .. ... .. ....... ... .... .. .... ..... 8,13,14,19
Tex.Prop. C. §24.005 (d) .................................................................. 8
Tex.Prop.C. §24.0054 .. . ............ .. . ...... .. .......... .. . ......... .. ....... .. . ........ . 8
Tex.Prop.C. §24.0054 (a-2) ...... .. . .......... .. ......... .. .. ...... .. ...... .. . ... .. ..... 10
6
Tex.Prop.C. §24.006l.. . ......... ... ... ....... ........... ... .......... .
Tex.Prop.C.j24.007 ...... ... ...... .. . ......... ... .................. ... ....... 10,27,31,33
Texas Property Code, Chapter 5l.. . ......... ... ... .... .. ......... ... ....... .. ...... .8,21
Texas Property C. §51.005(a)(2) ................................................ ....... 25
Tex.RApp.P. 44 ... ... .... .. .... ...... ... .. .... .. .... ...... .. ....... .. ....... .. ... ... ..10,25
Tex.RCiv.P 309 ...................................................... ............ 9,24,25,37
Tex.RCiv.P. 310 ...... ...... ... ....... .. ... ...... ... .............. .. ... 9,23,24,26,27,36,37
Tex.RCiv.P 510.9 ......... ... ......... ... ...... ... ......... ... ...... ... ...... ... ...... ..... 9
Tex RCiv.P. 510.13 .... ........ ... .......... ........ ... ... ..... ... ... 10,27,31,33,34,35
CONSTITUTIONS
Texas Constitution, Art. 1, Sec. 13 ... ....... ........... ... .......... ..... .......... ... ..11
Texas Constitution, Art. 1, Sec. 19 .................................................... .11
Texas Constitution, Art. 5, Sec. 6 ... .... .... .. .. ... ... ... ... ..... .. .. ..... .. .. .... ....... 8
OTHER AUTHORITIES
Ronald Benton Brown & Sharon Jacobs Brown,
STATUTORY INTERPRETATION §4.2 AT 38 (2002) ..... . ...... ... ........ .. ... 10
Texas Code ofJudicial Conduct.. .................................................. .......... 11, 24
7
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.
STATUTES, RULES AND AUTHORITIES RELEVANT TO THE CASE
Tex.Civ.Prac. & Rem. Code §16.003. Two year Limitations Period. (a) Except as
provided by Section 16.010 and 16.0045, a person must bring suit for trespass for
injury to the estate or to the property of another, forcible entry and detainer, and
forcible detainer not later than two years after the day the cause of action accrues.
Tex.Prop.C. §24.002 Forcible Detainer is: A person who refuses to surrender
possession of real property on demand commits a forcible detainer if the person is
a tenant at will or by sufferance, including an occupant at the time of foreclosure of
a lien superior to tenant's lease.
8
The demand for possession must be made in writing by a person entitled to
possession of the propoperty and must comply with the requirements for notice to
vacate under Section 24.005.
Tex.Prop. C. §24.005 Cd) In all situations in which the entry by the occupant was a
forcible entry under Section 24.001, the person entitled to possession must give the
occupant oral or written notice to vacate before the landlord files a forcible entry
and detainer suit. The notice to vacate under this subsection may be to vacate
immediately or by a specified deadline.
Tex.Prop.C. §24.0054 Tenant's failure to pay rent during appeal. (c) If the court
finds that a tenant has failed to timely pay the rent into the court registry on more
than one occasion:
(1) the tenant is not entitled to stay the issuance of the writ by paying
the rent and the landlord's reasonable attorney's fees, if any; and
(2) the county court shall immediately issue a writ of possession.
(d) A writ of possession issued under Subsection (c) may not be executed
before the sixth day after the date the writ is issued.
Tex.R.Civ.P 309. In Foreclosure Proceedings. Judgments for the foreclosure of
mortgages and other liens shall be that the plaintiff recieve his debt, damages and
costs, with a foreclosure of the plaintiffs lien on the property subject thereto, and,
except in judgments against executors, administrators and guardians, that an order
of sale shall issue to any sheriff or any constable within the State of Texas,
directing him to seize and sell the same as under execution, in satisfaction of the
judgment; and, if the property cannot be found, or if the proceeds of such sale be
insufficient to satisfy the judgment, then to take the money or any balance thereof
remaining unpaid, out of any other property ofthe defendant, as in case of ordinary
executions.
Tex.R.Civ.P. 310. Writ of Possession. When an order foreclosing a lien upon real
estate is made in a suit having for its object the foreclosure of such lien, such order
shall have all the force and effect of a writ of possession as between the parties to
the foreclosure suit and any person claiming under the defendant to such suit by
any right acquired pending such suit; and the court shall so direct in the judgment
providing for the issuance of such order. The sheriff or other officer executing
such order of sale shall proceed by virtue of such order of sale to place the
purchaser of the property sold thereunder in possession thereof within thirty days
after the day of sale.
9
Tex.Prop.C. §24.0061: Writ of Possession: (a) A landlord who prevails in an
eviction suit is entitled to a judgment for possession of the premises and a writ of
possession. In this chapter, "premises" means the unit that is occupied or rented
and any outside area or facility that the tenant is entitled to use under a written
lease or oral rental agreement, or that is held out for the use oftenants generally.
(b) A writ of possession may not be issued before the sixth day after the
date on which the judgment for possession is rendered unless a possession bond
has been filed and approved under the Texas Rules of Civil Procedure and
judgment for possession is thereafter granted by default.
Tex.RCiv.P 510.9 Appeal. (a) How Taken; Time. A party may appeal a judgment
in an eviction case by filing a bond, making a cash deposit, or filing a sworn
statement of inability to pay with the justice court within 5 days after the judgment
is signed. (b) Amount of Security; Terms. The justice court judge will set the
amount of the bond or cash deposit to include the items enumerated in Rule
51O.1l.
Tex.Prop.C. §24.0054 (a-2) If a person files a pauper's oath and there is no
judgment for rent, the justice court shall forward the transcript and original papers
in the case to the county court for trial de novo.
Tex RCiv.P . 510.13. Writ of Possession on Appeal. The writ of possession, or
execution, or both, will be issued by the clerk of the county court according to the
judgment rendered, and the same will be executed by the sheriff or constable, as in
other cases. The judgment of the county court may not be stayed unless within 10
days from the judgment the appellant files a supersedeas bond in an amount set by
the county court pursuant to Section 24.007 ofthe Texas Property Code.
Tex.Prop.C. §24.007 Appeal: (a) A judgment of a county court in an eviction suit
may not under any circumstances be stayed pending appeal unless, within 10 days
of the signing of the judgment, the appellant files a supersedeas bond in an amount
set by the county court. In setting the supersedeas bond the county court shall
provide protection for the appellee to the same extent as in any other appeal, taking
into consideration the value of rents likely to accrue during appeal, damages which
may occur as a result of the stay during appeal, and other damages or amounts as
the court may deem appropriate.
(b) Notwithstanding any other law, an appeal may be taken from a final
judgment of a county court, statutory county court, statutory probate court, or
district court in an eviction suit.
10
Statutory construction: The plain meaning of the statute is to control. The plain
meaning of the statutory language is presumed to be what the legislature intended,
and if the meaning is plain, the court cannot base its interpretation on any other
method or source. Ronald Benton Brown & Sharon Jacobs Brown, STATUTORY
INTERPRETATION §4.2 AT 38 (2002); See also Boykin v. State, 818 S.W.2d
782,785-8 (Tex. Crill. App. 1991)(en banc).
Tex.R.App.P. 44. Reversible error in Civil Cases. (a) Standard for reversible error.
No judgment may be reversed on appeal on the ground that the trial court made an
error of law unless the court of appeals concludes that the error complained of: (1)
probably caused the rendition of an improper judgment; or (2) probably prevented
the appellant from properly presenting the case to the court of appeals. (b) Error
affecting only part of case. If the error affects part of, but not all, the matter in
controversy and that part is separable without unfairness to the parties, the
judgment must be reversed and a new trail ordered only as to the part affected by
the error. The court may not order a separate trial solely on unliquidated damages
if liability is contested.
Texas Code of Judicial Conduct. 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.
Canon 3. Performing the Duties of Judicial Office Impartially and Diligently A.
Judicial Duties in General. The judicial duties of a judge take precedence over all
the judge's other activities. Judicial duties include all the duties of the judge's
office prescribed by law. In the performance of these duties, the following
standards apply: B. Adjudicative Responsibilities. (1) A judge shall hear and
decide matters assigned to the judge except those in which disqualification is
required or recusal is appropriate. (9) A judge should dispose of all judicial matters
promptly, efficiently and fairly.
Texas Constitution, Art. 1, Sec. 19. No citizen of this state shall be deprived of
life, liberty, property, privileges or immunities, or in any manner disfranchised,
except by the due course ofthe law ofthe land.
Texas Constitution, Art. 1, Sec. 13 . Excessive bail shall not be required, nor
excessive fines imposed, nor cruel or unusual punishment inflicted. 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 oflaw.
11
STATEMENT OF THE CASE
This is an appeal of a forcible detainer proceeding from the Travis County
Court at Law #2 . The trial occurred on August 5, 2014 and judgment was rendered
on August 7,2014, and timely appealed.
ISSUES PRESENTED
ISSUE 1: Whether the two year limitation period of Texas Civil Practice and
Remedies Code § 16.003 bars Plaintiffs forcible detainer suit for possession of the
property.
ISSUE 2: Whether the use of a 310 writ of possession was improper.
ISSUE 3: Whether it was an error of law when the Trial Judge did not set a
supersedeas bond
ISSUE 4: Whether it is Judicial error when the presiding trial judge, Honorable
Joe Carroll did not sign the Judgment order.
ISSUE 5: Whether the issuance of a Writ of Possession from County Court,
which was issued prematurely denied Appellant of due process of law.
ISSUE 6: Whether in the Emergency Petition for Writ of Reentry hearing, the
Trial Judge misapplied the law.
STATEMENT OF FACTS
Timeline
08/2611997 Kevin Bierwirth buys property at 3305 Spaniel Drive
06/2412005 Kevin Bierwirth obtains Home Equity loan from State Bank.
08/2112010 TIB files Rule 736 Application for judicial foreclosure .
0211012011 Bierwirth files suit for Declaratory Judgment.
04/2112011 Summary judgment issued in favor ofTIB.
06/0712011 TIB foreclosed on Home Equity loan.
06/3012011 Fannie Mae issued 3 day notice to vacate to Bierwirth.
1011512012 TIB issued Special Warranty Deed to Appellee.
12
1011512012 Fannie Mae sues for forcible detainer. Case #. C212068100
0112412013 Fannie Mae issued 3 day notice to vacate to Bierwirth.
02/08/2013 First Writ of Possession is served on Bierwirth.
05/08/2013 Writ of Possession issued to occupant Mrs. Flores.
06/0512013 Fannie Mae issued 3 day notice to vacate to Bierwirth
0711 012013 Fannie Mae files suit for forcible detainer Case # 13008316
08/2212013 Second Writ of Possession is served on Bierwirth
0312512014 Third Writ of Possession is served on Bierwirth
05/01/2014 Fourth Writ of Possession is served on Bierwirth
05/0612014 Fannie Mae issued 3 day notice to vacate to Bierwirth.
06/0312014 Fannie Mae sued Dana Dutschmann for FED #14074257.
ARGUMENTS AND AUTHORITIES
ISSUE 1
Whether the two year limitation period of Texas Civil Practice and Remedies
Code §16.003 bars Plaintiff's forcible detainer suit for possession of the
property
Tex.Civ.Prac.& Rem. Code §16.003 states there is a 2 year statute of
limitations for bringing suit for forcible entry and detainer and forcible detainer
which is not later than two years after the day the cause of action accrues.
The sole issue in a forcible detainer suit is who has the right to immediate
possession of the premises. Fandey v. Lee, 880 S.W.2d 164, 168 (Tex.App.-El
Paso 1994, writ denied); Cuellar v. Martinez, 625 S.W.2d 3, 5 (Tex.Civ.App.-
San Antonio 1981, no writ).
The exclusive purpose of an FED action is to provide a person who is
entitled to the immediate possession of real property a legal remedy, rather than
13
force or violence, to gain possession of the property. To prevail in a forcible
detainer action, a plaintiff is not required to prove title, but is only required to show
sufficient evidence of ownership to demonstrate a superior right to immediate
possess. Goggin v. Leo, 849 S.W .2d 373, 377 (Tex.App.-Houston [14th Dist.]
1993, no writ).
In a forcible detainer action pursuant to §24.002 ofthe Texas Property Code,
the plaintiff is required to show that (1) the plaintiff owned the property; (2) the
defendant became a tenant at sufferance or at will; (3) the plaintiff gave proper
notice to the defendant requiring him to vacate the premises; and (4) the defendant
refused to vacate the premises. Elwell v. Countrywide Home Loans, Inc., 267
S.W.3d 566,568-69 (citing TEX.PROP.CODE ANN. §24.002 (West 2000).
Under Texas jurisprudence, the general rule to determine when the statute of
limitations begins to accrue is the legal injury rule. Rogers v. Ricane Enterprises,
Inc., 930 S.W.2d 157 (Tex. App.-Amarillo, 1996, modified on rehearing, writ
denied, rehearing of writ of error overruled)(stating, "For purpose of application of
statutes of limitation, cause of action can generally be said to "accrue" when
wrongful act effects injury, regardless of when plaintiffleamed of injury. ").
The exception is the continuous tort rule. Upjohn Co. v. Freeman, 885
S.W.2d 538 (Tex.App.-Dallas, 1994, rehearing denied, writ denied)(stating,
"Typically, limitations period begins to run when claim accrues or when damages
14
are sustained; however, exception to this rule is found with continuing torts, as to
which cause of action does not accrue until defendant's tortious act ceases. ").
In other words, ifthe legal status of the tenant is constant over the passage of
time, the legal injury rule applies; whereas if the legal status of the tenant changes
with time the continuous tort rule applies. Note that in a rental case, the legal
status of the tenant changes when he/she pays the rent, curing the default.
However, that is not the case in the case of a tenant at sufferance, because the legal
status of the tenant at sufferance remains as an unlawful detainer; unless and until
he/she surrenders possession, is evicted, or enters an agreement with the landlord;
notwithstanding being served with subsequent 3 day notices and the filing of FED
actions.
The question of when a cause of action accrues is a judicial one to be
determined with due regard to underlying statutory policy of repose, without,
however, permitting unnecessary individual injustices. Rogers v. Ricane
Enterprises, Inc., (Tex.App-Amarillo, 1996). Where the language in a statute is
unambiguous, the courts must seek the intent ofthe legislature as found in the plain
and common meaning of the words and terms used. RepublicBank Dallas, NA. v
Interkal, Inc., 691 S.W.2d 605, 607 (Tex. 1985); eail v. Service Motors, Inc., 660
S.W.2D 814, 815 (Tex.1983).
15
The primary purpose of all limitation statutes is to compel the exercise of a
right of action within a reasonable time so that the opposing party has a fair
opportunity to defend while witnesses are available. Sanchez v. Archdiocese of
San Antonio, 873 S.W.2d 87 (1994).
If the court opts to bypass the injury and continuous tort methods of the
"accrual of action" it can determine the accrual by determining when the right of
action begins. Appellant asserts that if this method of accrual is used, the time
begins when a foreclosure sale takes place and the buyer at the foreclosure sale
becomes the "landlord" and the former owner becomes the tenant at sufferance.
Upon the filing of the foreclosure deed, the buyer/owner, would have a complete
and present cause of action. The date of the deed or the filing would mark the date
when the owner can file suit and gain relief. At that point, the landlord's right of
action includes his right to possession. It is at that point that the "landlord" has
the right to possession of the property and must exercise his speedy right of
possession before the two year statute of limitations bars the action, if he chooses
to use the speedy relief open to him via the justice court.
It could be argued that the 3 day notice to vacate is the accrual of action if
one determines that the legal injury applies when determining limitations period.
However, as the 3 day notice to vacate is a procedural requirement of a forcible
16
detainer action, not a substantive right to possession, the date of foreclosure would
apply.
A landlord in a tenant at sufferance, (foreclosure) case could send a 3 day
notice to vacate numerous times, but it does not reset nor alter the accrual of action
which begins when the entity becomes the titled owner of record and acquires the
right of possession or sustains an injury after the first 3 day notice to vacate is sent
and ignored.
To give credence to a procedural requirement, i.e., notice to vacate, as the
creation of a new cause of action or date of accrual, is a misinterpretation of the
statute.
In the case of a tenant at sufferance, the right to possession accrues when a
foreclosure sale is held and title is issued in the name of the purchaser at the sale,
not when the procedurally required Notice to Vacate is served. Because forcible
detainer is a statutory cause of action, a landlord must strictly comply with its
requirements. Kennedy v. Andover Place Apts., 203 S.W.3d 495, 497 (Tex.App.-
Houst [14th Dist.] 2006, no pet.), ultimately, the landlord is suing for his right to
possessIOn.
A forcible detainer action is a special proceeding designed to be a speedy,
simple, and inexpensive means to obtain immediate possession of the property.
Coinmach Corp. v. Aspenwood Apt. Corp., 417 S.W .3d 909, 919 (Tex. 20l3);
17
Marshall v. Hous. Auth. Of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006). Texas
courts have repeatedly recognized that a judgment of possession in a forcible
detainer action is a determination only of the right to immediate possession and
does not determine the ultimate rights of the parties to any other issue in
controversy relating to the property at issue. See, e.g., Williams v. Bayview-Realty
Assocs., 420 S.W.3d 358, 361 (Tex.App-Houston [14th Dist.] 2014, no pet.).
Federal Home Loan v. Pham, Crawford Block, 1-13-00109-CV (Texas App.-
Houston [14th Dist.] 2014).
It goes without saying that TIBlFannie Mae was entitled to supenor
possession following a foreclosure sale on June 7, 2011. CR p.80-83. It was at
that point that Appellant became a tenant at sufferance. TIBlFannie Mae slept on
its right to evict and never prosecuted to finality a forcible entry and detainer
action or a forcible detainer action against Appellant, a tenant at sufferance who
maintained possession after the sale. In the case before this Court, Appellant was
not named in the present suit and was forced to intervene in order to exercise his
superior right to possession because Fannie Mae was barred by limitations from
gaining possession by a forcible detainer action.
Fannie Mae sued Appellant injustice court on October 15,2012 for forcible
detainer, but the suit was voluntarily dismissed because Appellee reasoned it could
execute a writ of possession without going through a forcible detainer action.
18
After the posting of a 3 day letter to vacate dated June 5, 2013, Fannie Mae
sued Appellant and his wife for possession on July 10, 2013 in Travis County
justice court, Cause No. J2-CV -13-070643 . Possession was awarded to Fannie
Mae, the case was appealed and received by the county court on August 9, 2013,
Cause No. C-1-CV-13-007413. Fannie Mae did not prosecute the action and
waived its right to speedy possession in that instance.
In this case, Fannie Mae only sued in the name of the occupant of the tenant
at sufferance, ostensibly in order to avoid Appellant's claim that Fannie Mae is
time barred.
Appellant asserts that the limitations period began after foreclosure sale,
when he became a tenant at sufferance. However, if the court determines the
limitations period begins after sustaining an injury, Appellee would have suffered
an injury when it sent the first 3 day notice to vacate on June 30, 2011, and the
tenant at sufferance refused to vacate. The refusal to vacate gave rise to the
forcible detainer cause of action, because at that point all the elements of
Tex.Prop.C.§24.002 were satisfied. It was the Appellant's noncompliance with the
June 30, 2011 three day notice to vacate that caused the injury and gave rise to the
filing of a forcible detainer action in justice court. The legal status of the
Appellant changed from tenant at sufferance to unlawful detainer
19
The trial court in the Travis County court for forcible detainer, Cause No.
C-l-CV -14-006351 made an error of law which probably caused the rendition of
an improper judgment. There is no question that Fannie Mae did not bring a
forcible detainer action against intervening Appellant until after the 2 year statute
of limitations had barred it from doing so, utilizing any of the formulas for
determining accrual of action.. Therefore, judgment for possession could not have
been awarded to Fannie Mae, it was barred by statute.
In Coinmach, Appellant was a commercial tenant that remained in
possession for six years after it lost its lease when the property was sold through
foreclosure. The tenant ultimately conceded that the foreclosure terminated the
lease and, because the new owner immediately and continually insisted that the
tenant vacate the premises, the tenant became a tenant at sufferance.
As a general rule, a cause of action accrues and the statute of limitations
begins to run when facts come into existence that authorizes a party to seek a
judicial remedy. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962
S.W.2d 507, 5145 (Tex. 1998); Murray v. San Jacinto Agency, Inc., 800 S.W.2d
826 at 828 (Tex. 1991).
A cause of action accrues when a suit may be maintained thereon, and the
statute of limitations therefore begins to run at that time. The statute of limitations
begins to run when plaintiff first had the power to make a demand, such as a
20
demand for possession. Appellee, once it obtained title from its predecessor, had
the power to bring an action for forcible detainer, as it had acquired the right to
possessIOn.
A cause of action generally accrues when facts come into existence which
authorizes a claimant to seek a judicial remedy. Trail Enters., v. City of Houston,
957 S.W.2d 625,631 (Tex.App.-Houston [14th Dist.] 1997, pet. denied)
It is the standard rules that accrual occurs when the plaintiff has 'a complete
and present cause of action' . Bay Area Laundry and Dry Cleaning Pension Trust
Fund v. Ferbar Corp. of Cal., 522 US . 192,201 (US .S.Ct. 2007). That is, when
"the plaintiff can file suit and obtain relief." Bay Area Laundry, supra, at 201.
A limitations period ordinarily does not begin to run until the plaintiff has a
"complete and present cause of action." Rawlings v. Ray, 312 US. 96,98 (1941).
Fannie Mae, when it was vested with title, had the right to possession and
the right to a cause of action. The cause of action does not arise by the sending of
a 3 day notice to vacate, that is a manifestation of the right, not the right itself.
Appellant's right of possession to the subject property terminated upon foreclosure,
and Appellant thereby became a tenant at sufferance. Williams v. Deutsche Bank
Nat'l Trust Co., No. 05-11-00434-CV, 2012 Tex. App. LEXIS 3352 *5-6 (Tex.
App.-Dallas, Apr. 27, 2012, no pet.). Appellant became a tenant at sufferance
immediately upon the foreclosure of the property under a deed of trust. Williams,
21
2012 Tex. App. LEXIS 3353 *5-6 (holding where substitute trustee's deed
specifies that foreclosure was conducted under a deed of trust, mortgagor becomes
tenant at sufferance immediately after foreclosure sale).
Forcible detainer is a special proceeding. One which determines a superior
right to possession, however, the right to sue for forcible detainer is also meant to
be speedy, thus the two year statute of limitations. If one has a right to possession
and does not exercise its speedy remedy, it waives its right to sue for forcible
detainer in justice court. That does not mean that it has lost its right to possession,
it simply means that it has waived its right to the speedy, simple and inexpensive
means to obtain immediate possession of the property. It is not bereft of all
remedies, just the speedy one.
Laches would apply if the owner of the property was not barred by the two
year statute of limitation. A party cannot drag its feet on exercising a remedy. It
must sue for possession within two years of foreclosure sale or when it comes into
possession ofthe property and the right to possession.
In the instant case, TIB foreclosed on June 7, 2011, Fannie Mae sent Kevin
Bierwirth a 3 day notice to vacate on June 30, 2011, and filed an Original Petition
for Forcible Detainer on November 7,2012. After the posting of a 3 day letter to
vacate dated June 5, 20l3, Fannie Mae sued again on July 10, 2013 in Travis
County justice court, Cause No. J2-CV -13-008316, but failed to prosecute the case.
22
It is clear from the timeline, using any method of accrual, that Fannie Mae was
barred from utilizing a forcible detainer action either by June 8, 2013 or July 1,
20l3 .
Finally, to equate the accrual of action to the perspective of common law,
Appellant reduces the problem to an analogy. If one receives a check in payment
of a transaction, one holds the right to the money, not the money. If the check is
not cashed within a certain period of time, the right to cash the check expires and
the check becomes a worthless piece of paper. When the foreclosure deed is filed,
the buyer has the right to possession, not the possession itself. If the buyer sleeps
on that right, he is no longer entitled to the speedy remedy offered by forcible
detainer injustice court. In this case, that date is June 8, 20l3.
On the other hand, should the court determine that the accrual of the action
is when the injury first occurs, i.e., after a 3 day notice to vacate is sent and the
tenant at sufferance refuses to vacate, the date the statute began to run was June 30,
2011, more than two years before the case before the court was filed .
ISSUE 2
Whether the use of a 310 writ of possession was improper.
In the course of their defense of foreclosure, it became popular for a period
of time for attorneys who worked for the foreclosing banks to present orders to
judges after summary judgment in title suits in district court, that, in their belief,
23
would negate the necessity of eviction, or a forcible detainer action. Such is the
case in this instance.
TIB filed for summary judgment in Appellant's Declaratory Judgment case
and on April 21, 2011 was granted a Final Summary Judgment and Order
Allowing Home Equity Foreclosure. CR p.26-28 This order was appealed and
subsequently, Appellant was ruled against.
A portion ofthe language of the Order reads:
IT IS FURTHER ORDERED, ADJUDGED and DECREED that this
Judgment shall have all the force and effect of a writ of possession in favor of TIB
and that this Court shall issue all necessary orders to effectuate same pursuant to
Rule 310 ofthe Texas Rules of Civil Procedure.
Armed with a "Final Summary Judgment and Order Allowing Home Equity
Foreclosure", RR Exhibit Vol. Exhibit 2, pg. 2-A., in Cause No. D-l-GN-ll-
000417, Fannie Mae caused four TCRP Rule 310 writs to be served on Bierwirth
personally. The constables who served them were at a loss as to what the writs
were for, as the writs clearly show they are to satisfy a money judgment.
A 310 writ is issued after a 309 suit has been adjudicated.
A Tex.R.Civ.P. 310 writ of possession is an order foreclosing a lien upon
real estate in a suit having for its object the foreclosure of such lien. In order to
obtain a TRCP 310 writ, a suit must be filed pursuant to the rules in Tex.R.Civ.P
309: i.e., a judgment in a suit foreclosing a lien on real estate for the recovery of
24
debt, damages and costs. The foreclosure sale must be conducted by a sheriff or
constable who then seizes the property for payment of the debt.
Further, after the sheriffs sale, Tex.R.Civ.P 310 states that the sheriff or
other officer executing such order of sale shall proceed by virtue of such order of
sale to place the purchaser of the property sold thereunder in possession thereof
within thirty days after the day of sale. (A sheriffs deed).
In the instant case, no sale ofthe subject property was conducted by a sheriff
or constable, and the writs were improper and therefore not executed. Brown v.
EMC Mortg. Corp. 326 S.W.3d 648, 653-54 (Tex.App.-Dallas 2010, pet. denied).
In Brown, the appeals court reasoned that the trail court made an error of law that
probably caused the rendition of an improper judgment. See Tex.R.App.P.44.l."
The Brown court further reasoned that "The requirement that the sale of the
property in a judicial foreclosure be conducted by a sheriff or constable is clear,
unambiguous, and does not conflict with any provision of chapter 51. Indeed,
chapter 51 distinguishes between foreclosure sales conducted under the chapter
and those conducted under a court judgment foreclosing the lien. See id.
§51.005(a)(2). Because nothing in chapter 51 conflicts with rule 309, we must
assume that the legislature intended for judicial foreclosures to continue to be
conducted by sheriffs or constables even after the enactment of chapter 51 .
Accordingly, the order of sale in this case is not in compliance with Texas law".
25
In this case, Fannie Mae's attorney makes reference to a foreclosure
conducted pursuant to the summary judgment. RR. Vol.2 pg. 6, I 22-24. And
again at RR Vo1.2, pg. 8, I. 2-4. Fannie Mae claims it had the legal right to
possession due to the summary judgment order.
In RR Vol. 2 pg. 27, I. 9-10, Fannie Mae admits there was no sheriffs sale.
RR Vol. 2 pg. 35, I. 17-25, RR Vol. 2, pg. 36,1.., Fannie Mae admits that
notice to vacate was served in November of 2011.
Appellee states that Fannie Mae already has a writ of possession against
Bierwirth. RR Vol. 2, pg. 51, I. 21-22
The only writs of possession which have ever been served on Kevin
Bierwirth, the tenant at sufferance, and the only party liable for possession, were
writs issued pursuant to TRCP 310.
As a result of the summary judgment order, the First Writ of Possession
issued on April 21, 2011, and was served by a Constable on February 13, 2013,
with the notation: "Delivered copy of writ to Kevin Bierwirth in person at 3638
Spring Canyon Trail, Round Rock, TX. And seize any property located at 3305
Spaniel Drive, Austin, TX 78759. See APPENDIX Exhibit 2
A Second Writ of Possession was issued on August 22,2013, and returned
with the notation: I filed bankruptcy - # 13-11730D, return per plaintiff. See
Appendix Exhibit 3
26
A Third Writ of Possession issued on February 19, 2014, with the notation:
Return un-served. Writ Expired on 3-21-14, when came to hand on 3-25-14.
Plaintiffs attorney was notified on 4-1-14 @ 12:15 p.rn. . Return to Court. See
Appendix Exhibit 4
A Fourth Writ of Possession issued on April 22, 2014 with the notation:
Executed on May 1, 2014 at 1:21 p.rn. by Delivering copy of writ to Kevin
Bierwirth. See APPENDIX Exhibit 5
Appellant's attorney, Stephen Casey discusses the holding in Brown v. EMC
in RR Vol. 2, pg. 52,53, 54, and the fact that there was not a proper judicial
foreclosure as ordered.
It is apparent that Appellee relied on a writ of possession for payment of a
debt, incorrectly ordered and issued, instead of a writ of possession for the
property, pursuant to a forcible detainer action.
Clearly, the TRCP 310 writ, although having been served four times over the
course ofthree years is and always has been void. The writ did not issue as a result
of a forcible entry and detainer, or forcible detainer suit.
Fannie Mae slept on its rights and is barred from filing the forcible detainer
action and the attempt to execute a 310 writ is improper.
ISSUE 3
Whether it was an error of law when the Trial Judge did not set
a supersedeas bond
27
The trial judge, when he issued the order for writ of possession, did not set
an amount for supersedeas bond. Appellant asserts the absence of an amount of
bond is judicial error. A reading of both Tex.R.Civ.P. 510.13, and Tex.Prop.C.
§24.007 state: "the judgment of the county court may not be stayed unless within
10 days from the judgment the appellant files a supersedeas bond in an amount set
by the county court."
This would lead an ordinary person to believe that it is the duty of the
presiding judge in a county court which is conducting a trial de novo for forcible
detainer to set a bond amount which would supersede the judgment until after
appeal.
It cannot be presumed that the one against whom a judgment issued is not
going to appeal, and be forced to once more go to the court in order to be able to
get a supersedeas amount. This is not economy ofthe courts.
Because the statute is so clear that the amount is set by the county court, it is
judicial error for the judge to not set an amount.
In this case, a Motion for Supersedeas Bond was filed with the Court on
August 8, 2014, CR p. 123, the day after Judgment issued, CR p. 124-125. In
order to be heard, the Motion must be set for hearing, and in order to be effective,
it must be set before the 10 day deadline for filing the supersedeas bond. Despite
numerous attempts to schedule the hearing, the Travis County clerk's office set a
28
date for the hearing on August 22nd, three days after execution of the judgment on
the 19th of August, too late to stay the judgment, thus denying Appellant access to
the court and due process.
The plain language rule of statutory construction states: Where the language
is plain and admits of no more than one meaning the duty of interpretation does not
arise. Caminetti v. United States, 242 U.S. 470, 485 (1917). Where the language
of an enactment is clear and construction according to its terms does not lead to
absurd or impracticable consequences, the words employed are to be taken as the
final expression of the meaning intended. United States v. Missouri Pac. R.R.Co.
278 U.S. 269,278 (1929)
ISSUE 4
Whether it is judicial error when the presiding trial judge, Honorable Joe
Carroll did not sign the Judgment order.
The presiding judge at the trial on August 5, 2014, was the Honorable Joe
Carroll. CR Vol.2 p. 1. Judge Carroll did not sign the order of judgment which
issued as a result ofthe hearing.
Appellee asserts that by not signing the order, Judge Carroll is in violation of
the Texas Code of Judicial Conduct, Canons 2 and 3. It is the assertion of
Appellant that if a retired judge accepts an assignment to the bench, it is his duty
and obligation to conclude the business of the court, in particular, to sign the
judgment he rendered in the case he heard.
29
Judge Eric M. Sheppard signed the order, CR p. 124-125, Appendix Exhibit
1, which states: "On August 5, 2014, the Court heard the Petition for Forcible
Detainer brought by Federal National Mortgage Association, against Dana
Dutschmann, AND/OR ALL OCCUPANTS OF 3305 Spaniel Drive, Austin, TX
78759."
Present in the court hearing on August 5, 2014, was Judge Joe Carrol, as
presiding judge. Since Judge Sheppard did not attend the hearing and was not in
court, would the signing of the judgment by a judge who was not present in court
constitute impropriety?
Appellant believes that when the presiding judge, especially one who has
been brought in on a temporary basis to hear a limited number of cases and then
leave, does not sign the order in the case over which he presided, it is judicial error
or malfeasance.
ISSUE 5
Whether a premature issuance of a Writ of Possession from County Court
denied Appellant of due process of law.
The judgment in this case was signed by Judge Eric Shepard on August 7,
2014. A Writ of Possession issued on August 13, 2014, just six days later. Before
the execution ofthe writ, which occurred on August 19,2014, Appellant frantically
attempted to obtain a hearing to set an amount to supersede the judgment, to no
avail. The hearing was finally scheduled for August 22, 2014 . Appellant's
30
attorney Stephen Casey consulted with opposing counsel and requested the writ be
stayed until the hearing when it could be superseded. Opposing counsel would not
agree to wait for the hearing.
Because he was forced to obtain a hearing in order to set a supersedeas bond
amount which the trial court had failed to issue, and a hearing was not assigned for
14 days, Appellant asserts that he was denied access to an open court and due
process.
InMarshallv. Housing Authority City San Antonio, 198 S.W .3d 782, (Tex.
2006), the record shows the following : "On November 1, 2002, the trail court
entered judgment awarding the Housing Authority (1) possession of the apartment
after November 14, 2002, (2) court costs, and (3) post-judgment interest. On
November 8, 2002, Marshall filed a motion seeking suspension of enforcement of
the judgment or, in the alternative, setting of a supersedeas bond. In the motion
she specified that she intended to appeal. Following a hearing on November 7,
2002, a supersedeas bond amount was set pursuant to Texas Property Code Section
24.007, but Marshall did not post bond."
It appears from the opinion, that when the judgment issued on November 1,
it was noted that the writ would not issue until November 14, a period of more than
10 days after the order. Further, when the court had set no bond, Marshall
motioned for a supersedeas bond, and a hearing was held within the ten day period,
31
on November 7. Marshall was granted a hearing within 7 days of the order, which
would allow her to file the supersedeas bond. It appears from the record that
Marshall was afforded timely due process. Appellant was denied timely due
process.
The fact that the writ issued on the 6th day after judgment, in contradiction to
Tex.R.Civ.P 510.13 and Tex.Prop.C. §24.007, which allows a supersedeas bond to
be filed within 10 days of the judgment, Appellant was denied due process and
deprived of property without due course of the law of the land, a violation of the
Texas Constitution Bill of Rights relating to deprivation of property without due
process and equal treatment.
ISSUE 6
Whether in the Emergency Petition for Writ of Reentry hearing, the Trial
Judge misapplied the law.
After the eviction, Appellant filed an Emergency Petition for Writ of
Reentry on August 28, 2014 . CR p. 132-133. The petition claimed that the court
erred in issuing a writ before the lOth day after judgment and that Plaintiff was in
violation of Tex.R.Civ.P. 510.13.
In its response to the Emergency Petition for Writ of Reentry, CR p. 189-
192, Appellee claims it complied with all applicable procedural and substantive
rules. In addition, Appellee claimed that Appellant had waived any objection to
the form of the Judgment by failing to state such objection at the hearing on
32
August 5, and that the writ of reentry was moot because he was not in possession
of the premises and there is no potential basis for his claim that he is entitled to
actual possession ofthe premises.
Appellant's attorney Stephen Casey signed the proposed order: "Approved
as to Form Only". This does not waive any right as to the substance ofthe order.
At the "emergency" hearing on the matter, on September 29,2014, the first
date the clerk was willing to set, Judge Sheppard, on October 13, 2014, denied the
Petition. CR p. 200.
Although the order states that the writ of possession shall not issue until the
expiration of five days from the date this judgment is signed, it cannot be binding
because the language does not comply with the law. Both Tex.R.Civ.P 510.13
Appeal and Tex.Prop.C. §24.007, the rule and statute which apply to county court
proceedings, state that an appellant has 10 days to file a supersedeas bond in an
amount set by the court in order to stay execution ofthe writ.
At the hearing on the 29 th of September, 2014, Appellant informs the court
that pursuant to Tex.Prop.C. §24.007, the writ could not have issued before 10
days after the judgment issued. RR V.1 of 1 p. 4, 1. 24 - p. 5, 1. 6 (Anderson).
Beginning on RR V.1 of 1, p. 5, 1. 12-16,
The Court: "The rules require that the writ itself be issued within six day.
So the writ has to be done within six days, that's the rule for the writ. That's why I
33
am asking you about this other rule because the \Wit is done within six days, that's
what the rule requires.
Mr. Bierwirth: May I ask what rule it is.
The Court: Sure it's five something, let me get it.
Mr. Dent: Your Honor Rule 510.
The Court: It is 510 but there is a bunch of different subsections.
Mr. Bierwirth: I got 510.13.
The Court: That's why I asked you where you got the 10 day rule from.
Mr. Bierwirth: The county Courts always allow 10 days to put in a
supersedeas bond Your Honor for to stay the \Wit while it's on appeal. And then it
also says on the Texas Rules of Appellant Procedure that the Trial Court will
determine the type.
The Court: Why would the appellate rules apply in this Court.
Mr. Bierwirth: For the bond, to set the bond amount. The bond was never
set. And it states that for recovery of property for the judgment in this recovery of
interest in the real personal property the Trail Court will determine .... So it says
when the judgment for the recovery of interest in rural (sic) or personal property
the Trial Court will determine the type of security that the judgment debtor must
post. And that wasn't done.
The Court: okay
34
Mr. Bierwirth: And then a writ was issued five days after the hearing. And
a motion also was filed the very next day after the hearing to motion the Court to
set the bond amount and it was ignored.
The Court: Okay, so what you're saying is there is a conflict in the rules.
And the fact that the rule says the writ should be done within six days is in conflict
with the rule that says you get a bond amount within 10 days. And that we have to
wait the 10 days even though the rule says you have six days to issue the writ.
Mr. Bierwirth: Correct. I am not necessarily agreeing with the five day.
Because why would the 10 days be there to superseded it if they can get a writ
within five days.
The Court: What is your response to Mr. Bierwirth's claim that he gets 10
days for the supersedeas bond and that the motion for-the writ should not have
issued.
Mr. Dent: I think he is talking about rule 510.13, that's a misreading. The
rule actually says is that a judgment could be stayed if the bond is posted. In this
case the bond was not posted, the writ was executed or issued within the timeframe
as the rule say. And it was executed upon within the timeframe of the rules. And
Mr. Bierwirth is no longer in possession ofthe property at this time."
35
Judge Sheppard's comments are disingenuous at the very least. It is difficult
to imagine that Judge Sheppard does not understand that the appellate rules apply,
because the county court acts as an appellate court in a trial de novo.
The "after five days the writ will issue rule" applies, with one exception, to
the justice courts.
That exception is Tex.Prop.C. §24.0054, Tenant's failure to pay rent during
appeal. (2) of said statute states that the county court shall immediately issue a
writ of possession when the tenant has filed to timely pay the rent. (d) has the
sixth day language in it which pertains to the county courts.
Appellant was under no obligation nor duty to pay rent and therefore
Tex.Prop.C. §24.0054 does not apply and is misapplied by the judge.
Appellant asserts that the Court committed an error of law that caused the
rendition of an improper judgment when it continued to claim that the county court
has the right to issue a writ of possession before the lOth day after judgment.
Needless to say that counsel's statement of Mr. Bierwirth is no longer in
possession of the property at this time is a ridiculous observation and has no
bearing on a request for writ of reentry. If a person is still in their home, they
would have no need for reentry.
36
CONCLUSION
Fannie Mae, after a foreclosure sale, was vested with the right to possession
of the property at 3305 Spaniel Drive. Fannie Mae had two years from the date of
accrual of the action in which to evict Appellant from the property. Rather than
prosecute forcible detainer actions, Fannie Mae served Appellant with four Rule
310 writs, which authorize the seizure of personal property by a constable or
sheriff, to be sold to recover a debt which was the result of a foreclosure of a lien
on property. None of the underlying requirements was met, there was no suit to
foreclose, and no sheriffs sale. All conditions precedent for mandatory for 309
relief before issuance of a 310 writ.
Fannie Mae elected to waive suit on Appellant in justice court and was
barred by limitations in the suit before this court.
Further, the court engaged in irregular process, would not set timely hearings
in order to offer relief, and engaged in unseemly conduct.
PRAYER
Appellant prays that this Court find that Appellee waived its right to a
forcible detainer suit in justice court by delaying suit until the statute of limitations
ran.
Appellant prays that this Court reverse the judgment ofthe lower court in all
matters, including, the case was barred by statute of limitations, wrongful issuance
37
.. . ... . . . . . . '. .
of Writ before the mandatOlytenth day given for .Appellant to file a supersedeas
bond,misapplication of the law fornot setting a supersedeas bond amount, and
misapplication of the laws and rules of the courlsofTexas.
Appellant prays ··thatthisCourtdeclare that the TraVis .County Court at LaW
# 2 has. engaged in discriminator)rand unconstitutional practice by not allowing
Appellant an open·court and to restore.·him to the status quo before this suit was
filed.
Appellant prays that this Court reverse and render the judgment in the
County Court at Law #2.
Ke tn BierWirth
276 Research Blvd. Ste. 204
Austin,Texas 78750
(512) 825-0331
38
.' ',' .
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the
Appenant'sBriefwas~ent by United States Postal Service on March 5,2015 to the
following:
··I)ou.glas G.Dent .. .
6836 Bee Caves Road, Bldg. 3, Suite 303
Austin, TX 78746
CERTIFICATE OF COMPLIANCE
I, Kevin Bierwirth, the undersigned, do hereby certify that the number of
words in this Appellant's Brief is 8,575 words.
39
APPENDIX
Exhibit 1
Judgment of the Court issued August 7, 2014
Exhibit 2
First Writ of Possession issued January 24,2013
Exhibit 3
Second Writ of Possession issued August 22,2013
Exhibit 4
Third Writ of Possession issued February 19,2014
Exhibit 5
Fourth Writ of Possession issued April 22, 2014
Exhibit 6
Notice to Vacate dated June 30, 2011
Exhibit 7
Notice to Vacate dated January 24,2013
Exhibit 8
Notice to Vacate dated June 5, 2013
Exhibit 9
Notice to Vacate dated May 6, 2014
Exhibit 10
Eviction Citation Cause Number J2-CV-13-070643 filed July 9,2013
Exhibit 11
Eviction Citation Cause No.
40
EXHIBITl
CAUSE NO. C-I-CV.. I4-0063SI
.J4'tderal National Mortgage Association INTHECOUNTYCOURT
PlaintitT .
VI.
ATLAWNO~2
. ~~r;r/8at~~~g~CUPANTS·OF
3305 Spaniel Drive .
Austlnl TX 78759
Defenoants
.JUDGMt:NI
On AugustS. 2014; the Court heard thePetitionfo ghtby
Federal National Mortgage Association. against D:;a~" ND/OR ALL
OCCUPANTS OF 3305 Spaniel Drive, Austin.l''l
1.
2. Defendants Dana Dutschmann,
.. AN NTSOF 3305 Spaniel
Drive, Austin, IX 78759 appea
3.
4.
that venue was pro
5, The court findstha for torclble detainer r~lating to the premises at 3305
v C()unty.Texas 78759 (the ··Premises").
6. ·was·fiIedand Dana Dutschmann,ANDfOR ALL
'panie) Olive; Austln,IX787S9, were properly served.
d·by Defendants.
ed the evidence. and heard the evidence and arguments. the Court is
t the petition has been proven.
i. therefore ORDERED; AOJUf)GED AND DECREED that Federal National
Association shall re.ceive judgment tor possession
" . -
of the Premises. The Court
furt er orders that a Writ of' Possession will be grclntedordering the Constable to place
Federal National Mortgage Association in possession of the Premises. The Court further
.. I 111111 1111111111. Ilal·lllllIII1HlllllIllIll1\l 11111111
000891660
orders that the Writ ofPossession•• .. : : . . . . . . -. ".
.. DEFENDANT/GRANTEE, FEDERALAATIONAL MORTGAGEASSOCIAT::tON ,FOR TIB;..TIQ: INDEPENDENT
BANURSBANK,DEFENDA!rr/G~ . ' .
recc)vtired in the District Court of the 20()TH JUDICIALDISTRIC',i! COURTi'n and for Travis County, a
judgment .. against
PWNTIFF, KEVIN"S;n::RWIRTH
for the sum of $0.00 Doilars,
and for title to and possession of the .following-described pro.perty:
:LOT TWENTY .. SIX (26), BLOCKi'A",WA:t.NuT. CRO!;SING SECTION ONE, A4. ;¥,..~IVIS:r;ON.IN TRAyIS
COUNTY, TEXAS ACCOlU>~NG TO THE MAP' OR. PLA'l' RECORDED. IN VOL , PAGE .292, OF' THE .
PLAT RECOlU)S PF TRAVIS COUN'l'Y, •TEXAS • MAILING ADDRESS. FOR PROPERTY IS 3305
SPANlSL DRIVE,AQSTIN, TEXAS 78:7S9;
YOQ ARE HEREBY COMMANDED, to s.ize the abov. described. pro .and to deliver possession' of the
same to the said DEFENDANT/GRANTEE, .andifthepr6party be'foUnd or if for other reasons
delivery cannot be obtained, or should ~e proc4ileda ot aition of. the ~ve described property
by DEFENDANT/GRANTEE be insufficient to satisfy the jud t, then out of the property, goods,
chattels, lands ,and ten&.1ilents of said PLAINTIFF $ubj o.execution under the law of this state
you will cause to he made the said sum of money or b cethereof remaining Unpaid, as intha cas.a
of ordinary executions.
YOQ SHALL FORTBWITHaxecute this writ according terms and have said slims of mQn*y., to.gether
with this writ showing how you have executed~.ame, before said cQurt, at thecourthous4il thereof
in Austi'n, Texas, within ~days. ( . '., ~: . , . "'. ""
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EXHIBIT 5
"-' at I ru v -, J r'
THE STATE OF TEXAS FOURTH W R I T O F P 0 SSE S S ION Exec. Doc. CV13 Page 013
County of Travis CAUSE NO. D-1-GN-11-000417
To the Sheriff or any Constable of any County of the State of Texas - GREETING:
WHEREAS, on the APRIL 21, 2011,
DEFENDANT/GRANTEE, FEDERAL NATIONAL MORTGAGE ASSOCIATION, FOR TIB-THE INDEPENDENT
BANKERSBANK,
recovered in the District Court of the 200TH JUDICIAL DISTRICT COURT in Travis County, a
judgment against
PLAINTIFF, KEVIN BIERWIRTH
for the sum of $0.00 Dollars,
and for title to and possession of the following described property:~·
LOT TWENTY-SIX (26), BLOCK "A", WALNUT CROSSING SECTION 0 SUBDIVISION IN TRAVIS
COUNTY, TEXA.S ACCORDING TO THE MAP OR PLAT RECORDED IN V E 76, PAGE 292, OF THE
PLAT RECORDS OF TRAVIS COUNTY, TEXAS. MAILING ADDRESS THE PROPERTY IS 3305
SPANIEL DRIVE, AUSTIN, TEXAS 78759
YOU ARE HEREBY COMMANDED, to seize the above described rty and to deliver possession of the
same to the said DEFENDANT/GRANTEE, and if the property not be found or if for other reasons
delivery cannot be obtained, or should the proceeds 0 sposition of the above described property
by DEFENDANT/GRANTEE be insufficient to satisfy the ent, then out of the property, goods,
chattels, lands, and tenements of said PLAINTIFF ~ to execution under the law of this state
you will cause to be made the said sum of money lance thereof remaining unpaid, as in the case
of ordinary executions.
YOU SHALL FORTHWITH execute this writ accord'
with this writ showing how you have executed
~ "
0 its
e same,
terms and have said sums of money, together
before said court, at the courthouse thereof
in Austin, Texas, within 30 days.
WITNESS, AMALIA RODRIGUEZ- MENDOZA, Cle f the District Courts of Travis County, Texas.
Given under my hand and seal of Offi~ Texas, April 22, 2014.
REQUESTED BY:
LISA HARDEN
ROBERTSON/ANSCHUTZ
10333 RICHMOND AVE., STE 550 RODRIGUEZ-MENOO
HOUSTON, TX 77042 County Ois.trictClerk
BUSINESS PHONE: (713)980-95@ Travis County· COUrthouse
FAX: (713)888-2703 1000 Guadalupe, P.O. Box67~()03 (78767)
Austin, TX 78701
PREPAERD BY: BARI HENSON
G '.l:Jd txl-!H I
",.l "P\:ilSHO:J
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). UlnO~ £1 ~ -
Ot: .~ Hd £Z Hd'J 1J~
031\\383'8
Page 1 of 2
THE STATE OF TEXAS FOURTH W R I T O F P 0 SSE S S ION Exec. Doc. CV13 Page
County of Travis CAUSE NO. D-l-GN-ll-000417 013
-- - -- - -- - -- - -- - -- RET URN -- - -- - -- - -- - --
Came to hond this the ....r; day of ~ , ;lv' t( .t2<>,) 0' clock ~ •M. Bxecuted ,he L
Day of M!;?, ,~tt( at' o'clock 'O.M. by 12~o.. CWf"1 d'S!..
~ ~\L(lh-.%)'e..[~(Vd'lA )
Service Fee: $ _ __ , PeT. 2, TRAVIS COUNTY, TexAS.
--E~--------- County, Texas
D-l-GN-ll-000417 CONSTABLE, P38 - 000000003
BJ Original
Page 2 of 2
EXHIBIT 6
ROBERTSON I ANSCHUTZ
ATTQllNEYS AT LAW
RUTH W. GARNER 10333 Richmond Avcllue, Suite 550
rgamcr@l·adocs.C01l1 HOUSTON, TEXAS 77042
TELEPHONE (113) 24-1-1390
T'ELECOPY (713) 888·2103
June 30,2011
Loan No. 1419975022
Kevin Bierwirth SENT BY CERTIFIED MAIL
3638 Spring Canyon Trail RETURN RECEIPT REQUESTED
Round Rock TX 78681 AND BY REGULAR MAIL
Re: Notice to Vacate the Premises
lnvestor No.: 4004487819
Property: 3305 Spaniel Drive, Austin, TX 78759
Dear Kevin Bierwirth:
This finn reprcsents Federal National Mortgagc Association, thc new o'wner ofthe property identified above. That new
owner acquired the property through a foreclosure sale held on JUlle 07, 2011. Whether you were a tenant of the prior
owner or whether YOli were an owner that held title subjcctto the lien that was foreclosed, you 110 longer havc the right to
occupy the propelty.
The purpose of this· letter is to give formal demand for possession and formal notice that you must vacate the property
within three (3) days ftom the datc this lctter is delivered to the property. If you do not vacate the prope11y before the
expiration of those three (3) days this law firm wilI, shortly thereafter, file a foreiblc detainer (eviction) suit against you.
If you remain in the propcrty more than ten (10) days nfter YOll receive this letter and if this law firm files a forcible detainer
(cviction) suit, you may be liable for our client's attorney's fees and its COtllt costs. You mny also be liable for the
reasonable rental value ofthe propelty. YOUI' immediate attention to this matter is required. Please begin to vacate all
of your personal belongings quicldy!
This letter was sent by both certified mail and regular mail. Should you refuse delivety of the ccrtified letter, please be
will
advised that you are still 011 notice of the contents of this letter. Your refusal to accept the certified letter not delay the
eviction.
SPECIAL NOTICE TO TENANTS
lfyol! werc a tenant ofthe prior owner you may be cntitled to thirty days notice before suit is filed. YOll have the right to
thil1y days notice prior to our filing suit if, and only if, you were a tenant of the priorowl1cr at the time of the toreclosure,
you continued to timely pay rent to that owner up to thc date you received this letter and you werc cntirely unaware of the
foreclosure when you last paid rent. If you meet these cliteria, you have thilty days to vacate and YOll should consider this
letter formal demand for possession and fonnal notice that YOll must vacate within that timc. That thirty day period will
begin on the date this lencr is delivered to the propel'ly.
RA0277 175 - NOIToVacatc-OO.for - Rev. 08105/2009
EXHIBIT 7
ROBERTSON I ANSCHUTZ
Rum W.·OARNBR ATI'ORNEYS AT LAw
rgamer@radocs.com 10333 Richmond AVIinui!, Suite SSO
HOUSTOloI. TBxAs 77042
'I'I!l.ePIIONB(711)244.13!1O
.TBLBcopy (713) ....2'103
\\tebIite !WW.nd....som
January 24,2013
Loan No. 1419975022
Kevin Bierwlrth SENT BY CERTIFIED MAIL
13276 Researeh Blvd; #204 RETURN RECEIPT REQUESTED
Austin, TX 78750 AND BY REGULAR MAIL
Re: Notice to Vacate the Premises
Investor No.: 4004487819
Property: 3305 Spaniel Drive, Austin, TX 78759
Dear Kevin Bierwirth:
This firm represents Federal National Mortgage Association; the new owner ofthe property identified above. That
new owner acquired the property "through a forecloSure sale held on June 07, 2011.
The purpose ofthis letter is to give formal demand for possession and fonnal notice that you must vacate the property
within three (3) ~ from the date this letter is delivered to the property. Ifyou do not vacate the property before the
expiration ofthose three (3) days this law firm will, shortly thereafter; file a forcible detainer (eviction) suit against
you. If you remain in the property more than ten (10) days ilfter you receive this letter and if this law firm :files a
forcible detainer (eviction) suit, you may be liable for our client's attorney's fees and its court costs. You may also be
liable for the reasonable rental value of the property. Your Immediate attention to this matter is required. Please
begin to vacate aU of your personal belongings quickly!
This letter was sent byboth certified mail and regular mail. Should you refuse delivery of the certified letter, please
be advised that you are still on notice of the contents of this letter. Your refusal to accept the certified letter will not
delay the eviction.
SPECIAL NOnCE TO TENANTS
Notwithstanding this demand, if you are a bona fide tenant who executed a lease after May 20, 2009 with the
mortgagor of the Premises in an arms-length transaction, and for a substantially fBir.market rent or under a federal,
state or local. subsidized or reduced rent, and you are not a child, spouse or parent of the mortga~or on the property.
then demand is hereby made that you vacate the Premises within ninety (90) days after this notice is delivered, for so
long as you make each payment for this 90 day period to the Purchaser, as it becomes· due under the lease.
Additionally, if your lease was executed prior to May 16,2011, then you may remain in the Premises until the end
of the term of your lease for so long as you make each payment to the Purchaser as it becomes due under the lease,
subject to a subsequent ninety (90) day notice to vacate which may be sent ifthe Premises is sold to a person for their
primary residence.
RA027717S - NotToVacate-OO.for - Rev. 04/2612012
Ifyou claim to be a tenant or subtenant ofthe mortgagOr, then within three (3) days after delivery of this notice, please
notify the undeIsigned in writing at the above address of the tenancy· and piOvi}Vriuen leaSe Qrrentalagreement a written .explanation ·ofthe .terms'. of the
agieemelJJl,lqderwhichyou ocCupy thepropert)'di1Clu.ding thtl date you ~terediQto the agreement, the names of an
p~es who entet'ed into the agreement; the term of the agree.tnent; the amount9fth~ DJ.ontblyrent;anyutiliti~paid
bY tb,e landlord, tbeamount ofyoursecurlty deposit,and whether you receIve assistance under the DeplU'tmimtof
.Housing and Urban Development's Section 8 Housing Program; (b) proofofyour last rental payment and any security
deposit; (c) listof any conditions at the property that reqUire repair;and(d)whetberyou are the child, spouse or
parent ofthe mortgagor. .
Ifyou fail to vacate the Prenrlses pursUallttO tbis notice, aF9rcibie ErttryandDetainerspitshaU be filed in the Iustice
Court for possessionofthe·Premises, .withol.ltfurtJlernoticeto you;' Upon entry ofJudgment; the Purebaserwill seek
to eDf'oIC,;:.a!lofitSrlghts,mCI\1dmgobtainingpossessioIJ; ofthe Premises, eVictiOq, and possessiononemoval of all
personal property from the Premises l.lpollwhich yourperlional belongings would be removed and subject to loss.
This notice also' serves as a Notice ofTen.ninationa1ldNortreneWal.ofanyleases and tenancies which survive·the
foreclosure salepurstiant to.the terms of this notice.
Jfyouare an active.member ofthe UnitedStates Armed Forces or adependant ofan Ilctive Service Member, youmay
be entitled to rightiulS providedintheServicemembers CivilReliefAct. In such 9a.se;youoryour.attomey should
contact thjs law firm in1mediately to~detennineifyoufall under the protection of the Act.' .
'Thi$ is an attempt to collect a ·debtand~y infortnlltion'provided'~llbe Uscdfor that purpose.
Sincerely,
Robertson Anschutz Vetters
10333 Richmond Avenue, SuiteS50
Houston,TX 77042
.
~
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Jeffry B.Lewis
Via f1l'st class mail
:FAII..URE TO A}>PEARFOR TRIALlVJAY RESULT IN A l>EFAULTJUDGMENT·BEING
ENTERED AGAINST YOU.
SUIT TO EVICT
Tms SUIT T() EVICT lNVOLVES'IMMEJ>IATE DEADLINE$. A TENANT WHO IS SERVINGON
ACTIVE MILITARY DUTY :M,AYHAVE SPECIAL RIGHTS OR RELlEF. RELATED TOTHISSUI'f
UNDER FEDERALLAW,lNCLlJDINGTHE SERVICE MEMBERS CIVIL RELIEF ACT(50U.S~C.
APP. SECTIQNSOl ETSEQ~), OR STATE LAW, INCLlJDINGSE~TION92;017, TEXAS PROPERTY
CODE; CALL TIiESTATEBAROFTEXASTOLL-FREE AT1-'877-9TEXBAR IF YOU NEED HELP
. LOCATING AN ATTORNEY. IF YOU CANNOT AFFORD TO HIRE AN ATTORNEY, YOU MAY .
BE El-IG~LEFoRFREEORLOW-COST LEGAL ASSISTANCE.
.
"~-;a.~~~'_:J,,:, _F~ll)AT
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RAOZ7717S • NotroVacate-OQ;for • ~v; 12118/2013
". I::J1710821333939 blbb 0707
EXHIBIT 10
> > > > > EVICTION CITATION < < < < < ~ iFJ vJ 'y ,
THE STATE OF TEXAS O8.IVERED THIS DAY OF 20~
AD BALLESTEROS
TO: KEVIN BIERWIRTH ET AL CONSTABLE,~~V1~ TEXAS
3305 SPANIEL DRIvE
AUSTINTX 78759 BY DEPU1Y •
Defendant. in the hereinafter· styled and numbered cause:
YOU HAVE BEEN SuED. You may employ an attorney. YOU ARE HEREBY ORDERED TO APPEAR before JUDGE
GLENN BASS. JUSTICE OF THE PEACE for a hearing on
JULy 24, 2013 at 11:30 AM
at 10409 BumetRd.. Ste; 180, Austin, Texas 78758.
FAILURE TO APPEAR FOR TRIAL MAY RESULT IN DEFAULT JUDGMENT BEING ENTERED AGAINST YOU
FOR POSSESSION OF THE PREMISES AND/OR RENTS AND COSTS. PLEASE REVIEW THE ATTACHED PETITION
THE PLAINTIFF WANTS TO EVICT YOUI1HIS SUIT TO EVICT INVOLYES IMMEDIATE DEADLINES. CALL THE
STATE BAR OF TEXAS TOLL-FREE AT 1~877-9TEXBAR IF YOUNEED HELP LOCATING AN ATTORNEY. IF YOU
CANNOT AFFORD TO HIRE AN ATTORNEY, YOU MAY BE ELIGffiLE FOR FREE OR LOW-COST LEGAL
ASSISTANCE. A TENANT WHO IS SERVING ON ACTIVE MILITARY DUTY MAY HAVE SPECIAL RIGHTS OR
RELIEF RELATED TO THIS SUIT UNDER FEDERAL LAW, INCLUDING THE SERVICEMEMBERS CIVIL RELIEF
ACT (50 U.S.C. APP. SECTION 501 ET SEQ~). OR STATE LAW, INCLUDING SECTION 92.017, TEXAS PROPERTY
CODE.
EN CUANTO A ESTA DEMANDADE DESALOJAMIENTO, EXISTEN FECHAS LIMITES PROXIMAS QUE DEBERAN
CUMPLIRSE; SI REQUIEREALGUNTIPO DEAYUDA PARA ENCONTRAR UN ABOGADO, POR FAVOR LLAME AL
COLEGIO DE ABOGADOS DEL ESTADO DE TEXAS, MARCANDO 1-877.9TEXBAR (ES UNAUAMADA GRATUITA).
SI NO DISPONE DERECURSOS NECESARIOS PARA CONTRATAR UN ABOGADO,BSPOSIBLE QUE CALIFQUE
PARA RECIBIR AYUDA LEGAL GRATUITA OR DE BAJO COSTo. UN INQUlLINOQUE SE ENCUENTRE EN SERVICIO
ACTIVO EN LAS FUERZAS ARMADAS PUEDE TENERDERECHOS ESPECIALES OPROTECCTION, RELATIVE A ESTA
DEMANDA AL AMPARO DE LO ESTABLECIDO POR LAS LEYES FEDERALES. INCLUYENDO LA LEY PARA
INCLUYENDO LA LEY PARA LA PROTECCION CIVIL DE MIEMBROSDE LAS FUERZAS ARMADAS 50 U.S.c. APP.
SECTION 501 ET SEQ.} 0 POR LAS LEYES DEL ESTANDO, INCLUYENDO LA SECCION 92.017, DEL CODIGO DE
PROPIEDADDE TEXAS,
. Your Cause Number of J2-CV';13-070643 and your case styled FEDERAL NATIONAL MQRTGAGE ASSOCIATION VS.
KEVIN BIERWIRTH, ALETHA ANN JASO-KEITH AND/OR ALL OCCUPANTS was filed in Justice Court, Precinct 2.
on July 05,2013 rderto obtain a jury trial, you must request one and pay ajury fee of five dollars no later than 5 days after
you are served 's citation. Issued and given under my hand on July 09,2013.
.•.
~-,)
~
Judge Glenn Bass. JUSTICE OF THE PEACE, PRECINCT 2 .)
10409 BURNET RD., STE 180, AUSTIN, TEXAS 78758 c_
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PlaintiffIPlamtiff AgentIPlaintiff Attomey (if applicable):
RUTH W GARNER
10333 RICHMOND AVENUE
SUITE 550
HOUSTON TX 77042
> > > > > EVICTION CITATION< < < < <
Judge Glenn Bass, Justice of the Peace, Precinct 2
Cause Number J2-CV...13-070643
FEDERAL NATIONAL MORTGAGE ASSOCIATION VS. KEVIN BIERWIRTH, ALETHAANN JASO-KEITH AND/OR
ALL OCCUPANTS
- - - - - - - - - - - OFFICER'S RETURN - - - - - - - - - - -
Came to the hand on the day of _ _ _ _ _ _ _ _,. 20_at o'clock_ _. M.
Executed at within COWlty of at
_ _o'clock_ _. M. on the day of .20-, by delivering to the within named
a true copy of this citation together with the accompanying copy of the petition having first attached such copy of such
petition to such copy of ~itation and endorsed on such copy of citation the date of delivery.
To certifY which witness my hand officially:
Constable, Pet. 2 of Travis COWlty, Texas
ByD~uty _ _ _ _ _ _ _ _ _ _ _ _ ___
Federal National Mortgage Associatio~ IN THE JUSTICE OF PEACE
Plaintiff
vs.
PRECINCT 2
Kevin Bierwirth .and Aletha Ann Jaso;.Keith
AND/OR ALL OCCUPANTS OF :._.;>
3305 Spaniel Drive ,-
Austin, TX 78759 Travis County, Texas
Defendants
ORIGINAL PETITION FOR FQRCmLE DETAINER
TO mE HONORABLE JUDGE OF SAID COURT:
\':.
Federal National Mortgage Association, hereafter referred to as "Plaintiff',complainS
. of Kevili Bierwirth and~."
Aletha Ann Jaso-Keith, AND/OR ALL OCCUPANTS OF 3305 Spaniel Drive, Austin, TX 78759, hereafter
referred to as "DefendlUl1s". whether one or more, and for cause of action shows: '
1. Plaintiff owns certain real property in Travis County, Texas, commonly known as 3305 Spaniel Drive,
Austin, TX78759, hereafter and the "Property.II DefendantspresentIy oC¢upytheProperty. The Property lies
-,
within the jurisdiction of this Court and the Defendants may be' served with process at the Property. Plaintiff
knows of no other home or work addresses of the Defendants. in. thecoullty· where the Property is located.
Accordingly, if service is unsuccessful under T .R.C.P. 742. citation may be served Wlder T.R.C.P. 742a.
2. On or aboutJune 24, 2005, Kevin Bierwirth executed a Deed of Trust covering the Property . The Deed
of Trust was a frrst lien on the Property and secured the payment of a promissory note in the original principal
amoWlt ofSl05,800.00, hereafter the "Note!' The Deed of Trust was duly recorded in the real property records
of the county in which the Property is located. A true and correct copy ofthe Deed of Trust is attached as Exhibit
"An and incorporated asiffully set forth herein.
3. Due to default in the payment of the Note, the Holder of the Note asked the trustee or substitute trustee
under the Deed of Trust to conduct a non-judicial foreclosure sale. The sale was duly conducted in accordance
with the laws of the State of Texas and after that sale; Plaintiff acquired the Property. the possession of which is
RA027717S - Eviction Petition.for - Rev. 02/21/2013
-- --.-- - - - - - - . ' - -. -.--..;...-,;.,.~--~-.--.-------.-----------.---- .. --."-_.. _..._ _...-
.... ... _ _._._ __
.. .... .... - ..-............_. __.
the subject of this suit. A true and correct copy of that Foreclosure Sale Deed is. attached as Exhibit "B" and
incorporatedasif fully set forth herein.
4. Pursuant to the terms of the Deed of Trust under which the foreclosure sale Was duly conducted, and as
a result of the foreclosure sale under that Deed of Trust, Defendants became a mere tenant at sufferance. Any
lease, contract, or deed between Defendants and any person other than Plaintiff was inferior or subject to the
foreclosed security document. Moreover, subsequent to the foreclosure sale, Plaintiffhas not entered into any
lease or agreement with Defendants whereby Defendants may retain possession of the property,or, ifany such
lease or agreement was entered into, it has been properly terminated. Consequently. Defendants have no right,
either in law or in equity, to remain in possession of the Property.
5. Pursuant to Sec. 24.005 of the Property Code) Plaintiff delivered to Defendants, by both regular and
certified mail, return receipt requested, the requisite notice to vacate. A true and correct copy of that notice is
attached as Exhibit "C" and incorporated as If fully set forth herein. Defendants received that notice more than
three (3) days prior to the filing of this suit. Despite that notice, Defendants refused and refuses to relinquish
possession of the Property.
6. The property was conveyed to Federal Nationa,l Mortgage Association by a Special Warranty Deed
recorded October 26, 2012, under Clerk's File No. Instrument No. 2012181504 in the Official Public Records
of Travis County, Texas. A true and correct copy ofthe Special Warranty Deed is attached as Exhibit "0" and
incorporated· as if fully set forth herein.
WHEREFORE, Plaintiff requests that Defendants be cited to appear and anSwer, and that on fmal trial:
1. Defendants are adjudged guilty of forcible detainer;
2. Restitution of the Property is made to Plaintiff;
3. Plaintiff recovers its attorney's fees;
4. Plaintiff recovers from Defendants a.Il damages, including the reasonable rental value of the
Property, and costs;
5. Plaintiff recovers such other and further relief to which Plaintiff may be justly entitled.
RA027717S - Eviction Petition.for- Rev. 0212112013
.-. - _ . _ - - . . -..... _ . _ . _ _ _ • • _ _ _ _ _ _ _ _ _ • • • _ _ _ -~---.-------- - - - _ . _ - _ . _ - - - - - - - - .. - . _ . . . . . . - - - - ... -- - - - _ • •_ . - - _H' • __
,
Respectfully Submitted,
ROBERTSON ANSCHlITZ VETTERS
By:
Ruth W. Garner
TBA #07677350
10333 Richmond Avenue
Suite 550
Houston, Texas 77042
713~980w9500 Phone
713..;888~2703 Fax
ATTORNEYS FOR PLAINTIFF,
Federal National Mortgage Ass~iation
RA027717S - Bviction Petition.for - Rev. O:zn.112013
-_._-.,.. - - _..... _---
..----.-.-------
CAUSE NO. _ _.......
Federal National Mortgage Association IN THE JUSTICE OF PEACE
Plaintiff
VS.
PRECINCT 2
Kevin Bierwirth and Aletha Ann Joso-Keith
AND/OR ALL OCCUPANTS OF
3305 Spaniel Drive
Austin, TX 78759 Travis County, Texas
Defendants
VERIFICATION
State oCTexas
County of Barris
BEFORE ME. the mdersigned Notary Public, on this day personally appeared Ruth W. Garner, the duly
authorized agent for Plain~ who being by me duly swom on hislher oath deposed and said that helshe·has read
the above and. foregoing Original Petition For Forcible Detainer and that every statement contained thereinis
within hisJher p.ersonallalowledge or based upon the business records of the Plaintiff and is true and correct.
RutlrW; Gamer nd
SUBSCRIBED AND TIlE TRUTH OF TIlE ABOVE SWORN TO BEFORE ME on this the cf). day of
:s~ .2013.
r:",\1~1""11'
t
$:?~ . LISA DIANE HARDEN
~ {.~) ~ Notary Public. State ofTexas
~;PJ: .... ~~".,$ My comm.iSSion Expires
.:::1rfrf.l~'" October 23. 2014
.<
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RA027717S - Eviction Petition. for - Rev. 0212112013
EXHIBIT 11
~ ALLOC~~lJ)l~
~r styled and numbered cause:
r employ an attorney. YOU ARE HEREBY ORDERED
r BASS, Justice of the Peace for a hearing on
:012 at 9:30 A.M.
: Rd., ste 180, Austin Texas 78758.
MAY RESULT IN DEFAULT JUDGMENT BEING ENTERED
IF THE PREMISES AND/OR RENTS AND COSTS.
'ETITION .
. YOUl THIS SUIT TO EVICT INVOLVES IMMEDIATE
AR OF TEXAS TOLL-FREE AT 1-877..,9TEXBAR IF
TORNEY. IF YOU CANNOT AFFORD TO HIRE AN
E FOR FREE OR LOW-COST LEGAL ASSISTANCE.
CTIVE MILITARY DUTY MAY HAVE SPECIAL
rHIS SUIT UNDER FEDERAL LAW, .. INCLUDING THE
~CT (50 U.S. C. APP • SECTION 501 ET~·SE?t.) I
[ON 92 • 017, TEXAS PROPERTY CODE. < .
_. _;:. S :7~
'JESALOJAMIENTO, EXISTEN ·FECHAS LIMITES~ ',.~
';E. SI REQUIERE ALGW TIPO DE AYUDAP.APA>~'
fOR LLAME ALCOLEGrO DE ABOGADOS DEL EsTADO
rBAR (ESUNALLAMADAGRATUITA). SI';'t10:.~~: \0
)S PARA CONTRATAR UN ABOGAnO,ES POSJBLE
IDA. LEGAL GRATUITA OR DE BAJO CaSTO .~;, ~
~ EN SERVICIO ACTIVO EN LAS FUERZAS~' 1 (.
~SPECIALES 0 PROTECCTION, RELATIVA A"'ESTA
ILECIDO PORLAS LEYES FEDERALES. INCLUYENDO
rIL DE MIEMBROS DE LAS FUERZAS ARMADAS
'T SEQ.) 0 POR LAS LEYES DEL ESTANDO,
DEL CODIGO DE PROPIEDAD DE TEXAS.
, and your case styled
Plaintiff vs. BIERWIRTH, KEVIN AND/OR ALL OC, D
r-ecinct 2, on NOVEMBER 7, 2012
i1, you must request one and pay a jury fee of
lays after you are served with this citation.
1 on NOVEMBER 13, 2012 .
:> > > >
THE STATE Of' TEXAS
To: BIERWIRTH, .. KEVIl'lAND/OR1\LLOCWl
3305 SPANIEL DRIVE
M1'VQ
AOSTIN, .. TX 78759 .
. .
Defendant, in the hereinafter styled a,ndI;L1.1mbered cause:
YOU HAVE BEENSUBD • . Y()usnayemploy an attorney. YOU ARE HEREBY ORPERED
TO APPEAR before JUdge GLENN BASS, Justice of the Peace for a hearing on
JlOVDBBI. 28,. 2012 at 9:30 A.K.
at 10409 Burnet Rd., Ste 180, Austin Texas 78758.
FAILURE TO APPEAR FORTR!AL MAY RESULT IN DEFAULT JUDGMENT BEING ENTERED
AGAINS.T YOU FOR POSSESSION· OF THB P~ISES AND/OR RENTS AND COSTS.
PLEASE REVIEW THE ATTACasn PETiTION. .
THE PLAINTIFF WANTS TO EVICT YOU 1 THIS StJITTOEVICT INVOLVES IMMEDIATE
DEADLINES. CALL THESTA'l'E BAR OF TEXAS TOLL-FREE AT 1-877-9TEXBAR IF
YOU NEED HELP LOCATING AN A'l'TORNEY • IF YOU ·CA:NNOT AFFORD TO HIRE AN
ATTORNEY, YOU MAY. BE ELIGIBLE FOR FREE OR LOW-COST LEGAL ASS.ISTANCE.
A TENANT WHO IS SERVING ON ACTIVE MILITARY DUTY MAY HAVE SPECIAL
RIGHTS OR RELIEF RELATED.TQ THIS SUIT UNDER FEDERAL LAW, . :qqCLUDING ..TlIE..
~ERVIC~ERS CIVIL RELIEF ACT (SOU.S.C. APP. SECTION 501.ET,,~S~.),
OR STATE LAW, INCLUDING SECTION 92 • 017, TEXAS PROPERTY CODE. ~,~::
. . '.i' -~. ~
EN CUANTO A. ES,TA.DBMANDADE DEsALOJAMIBNTO, aXIS'rBN FECHAS LIMi.~b~.I~:~
PROlCIMAS' QUE ,DBBBRANCUMr:>LIRSB!SIRBOUIBRB ALGUNTIPO. DB Art.1bA:~C!
ENCONTRARUN;·ABOGADO, PORFAVOR LLAME lUi COLEGIO DB ABOGADOS IJ1si, B§TABQ
DE TEXAS, MARCANDQl-877-9TBXBAR(ES UNA LLAMADA GRATUITA). S1:';~NO:::? ~~j
DISPONE DE RBCURSOS NECBSARIOS PARA CONTRATAR UN ABOGADO, BS POqJBLB
{JOE CALIFQUE PARARBCIBIRAYUDAJ;iBGAL GRATUITA OR DB BAJO caSTO.?:. o\~
UN INQUILINO QUE SB BNCUBNTRBBN, SBRVICIO AC'TIVOEN LASF'UBRZAS :-. : ('
Al?:MADAS PUBDB TENBR DBRCHOSESPECIALBS OPROTECCTION, RBLATIVA AfESTA
DBMANDA ·AL AMPARO DB LO ESTABLSCIDO PaR LAS LBYBS FBDBRALBS. INCLUYENDO
LA LEY PARA LA PROTBCCION CIVIL DB MIBMBROS DE LAS FUBRZAS ARMADAS
(50U.S~C. APP.8BcTION501 BTSBO.)OPoRLAS LBYES. DEL BSTANDO,
INCLUYBNDO LA SECCION 92. 017 1 DEL CODIGO DB· PROPIEDAD .DB TEXAS.
Your Cause Number of 068100, and your case styled
'EDERALNATIONAL MORTGAGE ASSO, Plaintiff vs. ,... BIERWIRTH"KEVIN AND/OR ALL OC .• D
was filed in Justice Court~Precinct2,onNOVBMBER 7; 2012
I" 9a=ae!!eeebt:aina JULY tftal, rOtl muse request one and. pay a jury fee of
five dollars 0 later tb.aD,5days after Y9u are served with this citation.
Issued and ien under my hand on NOVEMBER 13,2012 •
-~ ..... -';";' -.,.
tice of· the~eace, Precinct 2~',·:···
180, Austin Texas 78758 . '~.
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·l?laintiff AttorIley/Agent:
RUTHW GARNER/AGENT
10333 RICHMONl,) AVENUE STE
HOUSTON TX 77042
» » > EVICTION CITATION < « < <
Judge GlaENN BASS, Jl1sticeof the Peace, . Precinct 2
Cause Number 068100
FEDERAL NATIONAL MbRTGAGEASSO,Plaint!ffvs. BIERWIRTH, KEVIN AND/OR ALL OC, D
- - ... - - - - - - ... - OFFICER'S RETURN - - - - .. - - - - - -
Came to the hand on the ...,..--__..-.- day o f , 2 0_____at . o'clock M
Executed at within County of .. . . . at --0' clock .M
on the day of , 20 ,by delivering to the w-ithin named
a true copy of this citation together with the aocompanying oopy of the petition
having first attached such copy of such petition to such copy of citat10nand
engorsed on such copy of citation the date of delivE!ry.
to certify which witness my hand officially:
constable, Pct·2 of ........- _________ county, Texas·
. By Deputy
CAUSE No.itft>lcQ
Federal NatioDalMortgageAssodati~D IN~JUSTICEOF'PEACE
Plabitlff ... .
VB.
PRECINCT:!
KeviD Bierwirth
AN»/OR ALL OCCUPANTS 0'
3305 SpaDlel Drive·
'.
...,..,
J>o
;A,ustin,TX 78759 Travis COUDty, Texas
Defucla1J.ts
ORIGINAL fETITIQNFORFORgBLE DlTAINjiR
TO TIlE HONORABLE JUJ)GE O:FSAIDCOURT:
..
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ANDIORALL OCCUPANTSOF 3305 SpaDlelDrive, Austin, TX 78759, hereafter referred to as ItDefendants".
, whether one or more, iII1d for cause of action shows: ,,
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1. Plaintiff owns certain real property in TravbCounty; Texas. commonlylcnown as 3305 SpaDielDrive,
Austin, TX 78759, hereafterand.tb.e "Prop~." Defendants presently occupy the Property; The Property lies
within the jmisdietion of this Court and the Defendants may be served with process at the Property. Plaintiff
knows of no other home or worlc addresses of the Defendants in the county where thcProperty is located.
Accordingly, ifservice is unsuecessfulunder r.R.C.R 742; citation maybesetv'edundtrT.R.C;P.742a.·
2. On or aboutJuae24, 2005,.Kevio BierWirth executed a Deed ofTrust coverlngthe Property. The Deed
of Trust was a first lien on the Property and secured the payment of.a promissory note in the original principal
amountofSt05,800~OO, hereaftertbe."Note. 1 The Deed ofTrust was duly recorded in the real Propertyrecorcis
ofthe county in which the Property is located. A true and.cOrrett copy ofthe Deed of Trust is. attached as Exhibit '
"AI/and incorporated asiffully setfortllherein.
3. Due to default in the paymentofthe Note. the Holder olthe Note asked the trustee or substitute trustee
underthe.Deed of Trust to conduct. a non-judicial foreclosure sale. The sale was duly conducted in accordance
with the laws oftbe Sta'teofTexas and after that sale; PlaihtiffacqWred the Property, the possession of which is
RA027711S - Eviction Pctition.for ~ Rev. 12J2912011
the subject of this suit. A true and correct copy ofthat Foreclosure Sale Deed is attached as Exhibit "B" and
incorporated as if fuUysetforthherein .
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4. Pursuant totbe tennsofthe Deed ofTrust underwbi~htheioreclosure sale was duly conducted, and as
a result of1he foreclosure sale under that Deed of1'rust, DefendanfSbecameamere tenant at sufferance. Any
lease, contract, or deed between Defendants and . any person other than ·Plaintiff was' inferior or subject to the
foreclosed. security document. Moreover, subsequent to the foreclosure sale, Plaintiff has not entered into any
.lease ora~erit with Defendants whereby' Defendants IlUlY'retain possession ofthe property, Of, ifany such
lease or agreement was' entered into, it has been properly terminated. Consequently, Defendants have no right,
either in law or in equity, to·renuUn in possession of the Property.
s. Pursuant to .Sec. 24.005 of the Property Code, Plaintiff.'· delivered to Defendams,byboth regular .and
. .
eertifiedmai~ returil receipt requested, the requisite notice to vacate. A true .~ correct copy of that notice is
attached as Exhibit "c"· and incorporated as iffuUyset forth herein. Defendants received that notice more than
three (3) days prior to the filing of this suit. Despite that notice, Defendants refused and refuses to relinquish
possession of the Property.
6. The property was conveyed to Federal NatiolUl1 Mortgage AssociatioilbyaSpecial Warranty Deed
recorded October 26, 2012, under ClerIes File No.ll1strumeotNo. 2012181504 in the Official Public Records
of Travis' County, Texas•.. A true and correct copy ofthe Special Warranty Deed is attached as Exln'bit liD" and
incorporated as if fully set forth herein;
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WHEREFORE, Plaintiff requests that Defendants be cited to appear ".""and thaton.fiUtlri8l::::e
. andanswei', "." . ". g ~
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1. Defendants are adjudged guilty of forcible detainer; f.; ~~ v_; ".!
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2. Restitution of the Property is made.to Plaintiff; :;~ .::! In
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3. Plaintiff reCovers itsattom.ey's fees;
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4.' .Plaintiff recovers from .Detendants .all damages, including the reasonable ren8I~lue 4;9he
Property, and costs; .
5. Plaintiff recovers such other and furtber·reliefto which Plaiittift' may bejustlyent1t1ed.
RA027717S - Eviction Petition.fur-Rev. 1212912011
~" .
Respectfully Submitted,
·R9BERTSON&AN$ClRJTZ
By;
RuthW.Gamer
TBA#076773S0"
10333 Richmond Avenue
Suite5S0
Houston, Texas 7'7042
713-98~9500 Phone
713.;88&2703 Pax
ATTORNEYS FORPLAINTIFF,
Federal National Mortgage Association
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