Gerald R. Haddox and Sharon Haddox v. Federal National Mortgage Association

ACCEPTED 03-15-00350-CV 8083814 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/3/2015 6:50:20 PM JEFFREY D. KYLE CLERK No. 03-15-00350-CV

FILED IN 3rd COURT OF APPEALS In The Court of Appeals AUSTIN, TEXAS For the Third District Court of Appeals 12/3/2015 6:50:20 PM Austin, Texas JEFFREY D. KYLE Clerk

GERALD R. HADDOX and SHARON HADDOX Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPELLANTS’ BRIEF

KARLA HUERTAS, SBN: 24087765 WILLIAM B. GAMMON, SBN: 07611280 GAMMON LAW OFFICE, PLLC. 1201 Spyglass Drive, Suite 100 Austin, Texas 78746 Phone: 512-444-4529 Fax: 512-545-4279 Firm@GammonLawOffice.com COUNSEL FOR APPELLANTS

ORAL ARGUMENT REQUESTED

No. 03-15-00350-CV

In The Court of Appeals For the Third District Court of Appeals Austin, Texas

GERALD R. HADDOX and SHARON HADDOX Appellants,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPELLANTS’ BRIEF

KARLA HUERTAS, SBN: 24087765 WILLIAM B. GAMMON, SBN: 07611280 GAMMON LAW OFFICE, PLLC. 1201 Spyglass Drive, Suite 100 Austin, Texas 78746 Phone: 512-444-4529 Fax: 512-545-4279 Firm@GammonLawOffice.com COUNSEL FOR APPELLANTS

ORAL ARGUMENT REQUESTED

APPELLANTS’ BRIEF CAUSE NO.: 03-15-00350-CV PAGE 2 OF 22

IDENTITY OF PARTIES AND COUNSEL

Appellants: Appellants’ Counsel: Gerald R. Haddox and WILLIAM B. GAMMON, SBN: 07611280 Sharon Haddox KARLA HUERTAS, SBN: 24087765 GAMMON LAW OFFICE, PLLC. 1201 Spyglass Drive, Suite 100 Austin, Texas 78746 Phone: 512-444-4529 Fax: 512-545-4279 Firm@GammonLawOffice.com

Appellee: Appellee’s Counsel: Federal National Mortgage Sarah S. Robbins, SBN: 24074966 Association Hughes, Watters & Askanase, LLP 333 Clay, 29th Floor Houston, Texas 77002 Telephone: 713.759.0818 Facsimile: 713.759.6834 ssr@hwallp.com

APPELLANTS’ BRIEF CAUSE NO.: 03-15-00350-CV PAGE 3 OF 22

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................3 TABLE OF CONTENTS............................................................................4 TABLE OF AUTHORITIES .....................................................................5 STATEMENT OF THE CASE ..................................................................6 RECOMMENDATION ON ORAL ARGUMENT .................................7 ISSUES PRESENTED ................................................................................8 STATEMENT OF FACTS .........................................................................8 SUMMARY OF THE ARGUMENT…………………………………..12 ARGUMENT .............................................................................................12

A. Standard of Review…………………………………………………......12 B. The County Court lacked jurisdiction…………………………14 C. Collateral estoppel bars FNMA from bringing the present forcible detainer action………………………………..20

PRAYER ....................................................................................................21 APPENDIX ...............................................................................................23 CERTIFICATE OF SERVICE ...............................................................22 CERTIFICATE OF COMPLIANCE .....................................................22

APPELLANTS’ BRIEF CAUSE NO.: 03-15-00350-CV PAGE 4 OF 22

INDEX OF AUTHORITIES

TEXAS SUPREME COURT CASES

Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex. 1984) 21 Collins v. Ison-Newsome, 73 S.W.3d 178, 180 (Tex. 2001) 17 Freedom Communs., Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) 18 Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) 17 Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) 14 Tex. Lottery Comm'n v. First State Bank of Dequeen, 325 S.W.3d 628, 635 (Tex. 2010) 16, 18

TEXAS COURTS OF APPEALS CASES Charleston v. Allen, 420 S.W.3d 134 (Tex. App.-Texarkana 2012, no pet. h.) 17 Doncer v. Dickerson, 81 S.W.3d 349 (Tex. App. – El Paso 2002, no pet.) 15 HSBC Bank USA, N.A. v. Watson, 377 S.W.3d 766 (Tex. App.—Dallas 2012, pet. dism'd) 19 In re H.C.S., 219 S.W.3d 33 (Tex. App. – San Antonio 2006, no pet.) 15 Mays v. Pierce, 203 S.W.3d 564 (Tex. App. Houston [14th Dist.] 2006) 14 Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871 (Tex. App.-Austin 2010) 13, 15

TEXAS RULES

Texas Rule of Appellate Procedure 47.7 17 Tex. R. Evid. 301(b) 18

TEXAS CODES AND STATUTES

Tex. Business Organizations Code §153.309(a)(1) 15 Tex. Business Organizations Code §153.309(a)(2) 15 Tex. Business Organizations Code §9.251 16, 17, 18, 19 Tex. Business Organizations Code § 1.002(28) 18 Tex. Local Government Code §192.007(a) 10, 20

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STATEMENT OF THE CASE

1.01 On May 2, 2014, Appellee Federal National Mortgage Association (“FNMA”) filed a forcible detainer action against the Appellants Gerald R. Haddox and Sharon Haddox (“Appellants” and/or “Haddoxes”).1 1.02 On May 20, 2014, Appellants filed their Original Answer, Plea to the Jurisdiction and Motion to Dismiss. Following a hearing on May 22, 2014, Appellants’ motion was granted and the court entered an Order dismissing Appellee’s case.2 1.03 On May 27, 2014, Appellee appealed the justice court’s decision in this forcible detainer action to the county court at law. 1.04 A trial was held de novo on December 5, 2014 during which the trial court entered an Order dismissing Appellee’s case with prejudice.3 1.05 Appellee filed a motion for new trial on December 18, 2014 and, following a hearing on January 6, 2015, the motion was granted on January 12, 2015.4 1.06 The case proceeded to a second de novo trial and on May 29, 2015 Judge Eric M. Shepperd entered his Order awarding possession of the property to Appellee.5 It is from this Order that the Haddoxes appeal.

1 (CR 63 - 83) 2 (CR 18) 3 (CR 117) 4 (CR 169) 5 (CR 207-208)

APPELLANTS’ BRIEF CAUSE NO.: 03-15-00350-CV PAGE 6 OF 22

STATEMENT REGARDING ORAL ARGUMENT

Appellants suggest that the issues presented should not be determined on the record alone and that oral argument is necessary. The issues presented have become sufficiently muddled by misinterpretation and the law sufficiently misapplied that oral argument would benefit the panel.

/s/ William B. Gammon William B. Gammon

APPELLANTS’ BRIEF CAUSE NO.: 03-15-00350-CV PAGE 7 OF 22

TO THE HONORABLE THIRD DISTRICT COURT OF APPEALS:

Appellants, Gerald R. Haddox and Sharon Haddox, plead that this honorable Court of Appeals reverse the judgment of the Travis County Court at Law Number 2 and render judgment in favor of Appellants.

ISSUES PRESENTED

2.01 Did the County Court have jurisdiction to determine right of possession when Appellee lacked standing to maintain its forcible detainer action against Appellants? 2.02 Does the doctrine of collateral estoppel bar Appellee from bringing the present suit which involves the same parties, issues and subject matter previously litigated in three other forcible detainer actions?

STATEMENT OF FACTS

3.01 On or about August 27, 1999, Appellants purchased the real property at 6508 Taylorcrest Drive, Austin, Travis County, Texas 78749 (the “Property”). They financed the purchase with a loan from National Mortgagelink I, Ltd. (“National Mortgagelink”), a Texas Limited Partnership (hereinafter “the Lender”), for $184,320.00, giving a 30 year fixed rate note (“the Note”) to the Lender in return. As security for the note, Appellants executed a deed of trust in favor of the Lender.6 3.02 On July 7, 2006 the Office of the Texas Secretary of State notified National Mortgagelink that the entity’s right to conduct affairs in the state of Texas had been

6 (CR 74 - 80)

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forfeited.7 National Mortgagelink did not revive its right to transact business. 3.03 On November 8, 2006, the Secretary of State cancelled the right of the limited partnership to transact business. 3.04 Despite thus fading from existence, FNMA claims that at some point thereafter National Mortgagelink assigned the mortgage to Federal Deposit Insurance Corporation (“FDIC”) as receiver for IndyMac Federal Bank, FSB, Successor to IndyMac Bank, FSB. 3.05 No such assignment was ever recorded as required under §192.007(a) of the Local Government Code.8 In fact, FDIC instead filed an “Affidavit of Lost Assignment” in the property records of Travis County, Texas claiming that FDIC was the current mortgagee but admitting it could not produce any assignment, recorded or unrecorded, to prove that claim.9 This “Affidavit of Lost Assignment” is a fictional device invented by FDIC and is wholly insufficient to establish an assignment of the mortgage. 3.06 On June 22, 2010, the same day the “Affidavit of Lost Assignment” was recorded, Bryan Bly, a notorious robo-signer at a document mill in Florida, allegedly

7 (RR Vol.4, p. 33-34) 8 Sec. 192.007. Records of Releases and Other Actions.

(a) To release, transfer, assign, or take another action relating to an instrument that is filed, registered, or recorded in the office of the county clerk, a person must file, register, or record another instrument relating to the action in the same manner as the original instrument was required to be filed, registered, or recorded. 9 (RR Vol.4, p. 30)

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acting on behalf of FDIC, recorded a “Corporate Assignment of Deed of Trust” assigning Appellants’ mortgage to OneWest Bank, FSB (“OneWest Bank”).10 3.07 On July 12, 2011 Hughes, Watters & Askanase recorded a “Notice of Substitute Trustee’s Sale” on behalf of OneWest Bank setting the sale for August 2, 2011. Appellee FNMA claims to have acquired the Property at this foreclosure sale. 3.08 Ten days later, OneWest Bank recorded an “Appointment of Substitute Trustee” stating it appointed the substitute on February 8, 2010. Incredibly, this date is more than 4 months before OneWest claims to have acquired ownership of Appellants’ mortgage. Thus, it is a void action for lack of authority. 3.09 On August 12, 2011, Hughes Watters & Askanase recorded a “Substitute Trustees Deed” in the official property records of Travis County.11 3.10 On August 24, 2011, Appellee filed a forcible detainer action against the Appellants (Cause No. 051621). The case was dismissed on appeal in County Court at Law No. 2, Travis County, Texas. 3.11 On or about August 2012, Appellee filed a second forcible detainer action against the Appellants (Cause No. 053364). On appeal in County Court at Law No. 2., the court granted Appellants’ Plea to the Jurisdiction for lack of standing pursuant to Tex. Business Organizations Code § 153.309 and dismissed the suit.12 On January

10 (RR Vol.4, p. 28) 11 (CR 130 – 133) 12 (CR 177)

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23, 2013, the Court denied Appellee’s Motion for Reconsideration.13 3.12 On November 20, 2013, Appellee filed a third forcible detainer action against the Appellants (Cause No. 056393). The Appellants filed a motion to dismiss asserting that the Court has already ruled that Appellees lack standing to maintain the action and thus the doctrine of res judicata bars Appellee’s request for relief. The court agreed with Appellant’s motion to dismiss, dismissed the case and awarded sanctions and attorney’s fees to the Appellants.14 3.13 On May 2, 2014, Appellee filed a fourth forcible detainer action against the Appellants (Cause No. 057256).15 Appellants again filed a Plea to the Jurisdiction and Motion to Dismiss.16 The court again found that Appellants’ Plea to the Jurisdiction and Motion to Dismiss were meritorious and dismissed the case.17 3.14 On May 27, 2014, Appellee appealed the court’s decision to the county court at law. A trial was held de novo on December 5, 2014 during which the trial court entered an Order dismissing Appellee’s case with prejudice and awarding attorney’s fees to the Appellants.18 3.15 Appellee filed a motion for new trial on December 18, 2014, which was

13 (CR 178) 14 (CR 182) 15 (CR 63 - 83) 16 (CR 34 – 50) 17 (CR 18) 18 (CR 117)

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granted on January 12, 2015.19 3.16 The case proceeded to a second de novo trial and on May 29, 2015 Judge Eric M. Shepperd entered his Order awarding possession of the property to Appellee.20 It is from this Order that the Haddoxes appeal.

SUMMARY OF THE ARGUMENT

4.01 Appellee lacks standing to maintain the present action because 1) National Mortgagelink forfeited its right to transact business in Texas barring Appellee from filing suit in the state of Texas pursuant to Tex. Business Organizations Code § 153.309; and 2) National Mortgagelink, the original noteholder, never subsequently assigned the Note, as the right to litigate comes by assignment, Appellee does not have standing to sue Appellants. 4.02 Since the present case involves the same parties, issues and subject matter as the three previous forcible detainer cases, the doctrine of collateral estoppel bars the Appellant from bringing the present suit and the final judgment is void as a matter of law.

ARGUMENT AND AUTHORITIES

A. Standard of Review

5.01 The court reviews de novo whether the lower court had subject-

19 (CR 169) 20 (CR 207-208)

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matter jurisdiction and whether the Appellee has alleged facts that affirmatively demonstrate subject-matter jurisdiction. Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871, 877 (Tex. App. Austin 2010). The court is not to consider the merits of Appellee’s claims beyond the extent necessary to resolve the jurisdiction issue. Id. 5.02 In order for the court to uphold the County Court’s ruling, it must find that the point of error alleged by Appellants is not meritorious.

In a nonjury trial, when no findings of fact or conclusions of law are filed or properly requested, it is implied that the trial court made all the necessary findings to support its judgment. Roberson v. Robinson, 768 S.W.2d 280, 281, 32 Tex. Sup. Ct. J. 337 (Tex. 1989);see Pharo v. Chambers Cty., 922 S.W.2d 945, 948, 39 Tex. Sup. Ct. J. 614 (Tex. 1996)(stating that, in a bench trial in which the trial court does not file findings of fact or conclusions of law, appellate courts presume the trial court made all findings in support of its judgment). Nevertheless, because a complete reporter's record is a part of the appellate record in this case, appellants may challenge both the legal and factual sufficiency of the trial court's findings. See Roberson, 768 S.W.2d at 281. We apply the same standards of review to these challenges as those applied in review of jury findings. See id.

Mays v. Pierce, 203 S.W.3d 564, 2006 Tex. App. LEXIS 8374 (Tex. App. Houston [14th Dist.] 2006).

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B. The County Court lacked jurisdiction to enter an Order because FNMA does not have standing.

1. Tex. Business Organizations Code §153.309 precludes FNMA from maintaining the present suit.

5.03 FNMA, as a successor/assignee of National Mortgagelink, has no right to judgment in a Texas court, because FNMA lacks standing. “A judgment is void if it is apparent that the court rendering the judgment had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to render the judgment, or no capacity to act as a court.” Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990). 5.04 “Subject-matter jurisdiction is essential to the authority of a court to decide a case, and standing is a component of subject-matter jurisdiction.” Save Our Springs Alliance, Inc., 304 S.W.3d 871 at 878. As an element of subject-matter jurisdiction, standing is an issue that can be raised at any time. In re H.C.S., 219 S.W.3d 33, 34 (Tex. App. – San Antonio 2006, no pet.). Standing is a question of law for determination by the court. Doncer v. Dickerson, 81 S.W.3d 349, 358 (Tex. App. – El Paso 2002, no pet.). In determining whether FNMA had standing, the court must determine whether FNMA is allowed to bring the present lawsuit. Id. 5.05 When National Mortgagelink forfeited its right to transact business in Texas it rendered National Mortgagelink, and thus FNMA, incapable of maintaining a suit against the Appellants in the State of Texas. Appellee lacks standing pursuant to Tex. Business Organizations Code §153.309(a)(1) and (2). Tex. Business

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Organizations Code §153.309 (a)(1) and (2), entitled “Effect of Forfeiture of Right to Transact Business,” state:

(a) Unless the right of the limited partnership to transact business is revived in accordance with Section 153.310:

(1) the limited partnership may not maintain an action, suit, or proceeding in a court of this state; and

(2) a successor or assignee of the limited partnership may not maintain an action, suit, or proceeding in a court of this state on a right, claim, or demand arising from the transaction of business by the limited partnership in this state.

5.06 In construing a statute the court’s primary objective is to give effect to the Legislature's intent. Tex. Lottery Comm'n v. First State Bank of Dequeen, 325 S.W.3d 628, 635 (Tex. 2010). The legislature’s intent is ascertained based on the plain meaning of the text. Id. It is presumed that “the Legislature selected language in a statute with care and that every word or phrase was used with a purpose in mind.” Id. The plain language in Tex. Business Organizations Code §153.309 (a)(1) and (2) clearly states that when a limited partnership forfeits its right to transact business in Texas neither it nor its successors/assignees may maintain an action or suit in a Texas court on a claim arising from business transacted in Texas. 5.07 It is an undisputed fact that the Texas Secretary of State terminated National Mortgagelink’s right to transact business in Texas.21 National Mortgagelink did not

21 (RR Vol.4, p. 33-34)

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revive its right to transact business in Texas. Therefore, neither National Mortgagelink nor FNMA, as a successor/assignee of National Mortgagelink, can maintain the present suit and any Order entered in this case granting relief to FNMA is void as a matter of law. 5.08 Appellee alleges that it has standing to maintain this suit pursuant to Tex. Business Organizations Code §9.251. §9.251 enumerates activities conducted by foreign entities that do not constitute as the “transaction of business” in Texas. In support of its argument Appellant relies, virtually exclusively, on an unpublished case from the United States District Court for the Western District of Texas2223. However, pursuant to Texas Rule of Appellate Procedure 47.7, “unpublished opinions have no precedential value and must not be cited as authority by counsel or by a court.” Collins v. Ison-Newsome, 73 S.W.3d 178, 180 (Tex. 2001). Furthermore, this is a federal case ergo it is not binding on this court. Charleston v. Allen, 420 S.W.3d 134, 137 n.6 (Tex. App.-Texarkana 2012, no pet. h.) (“[O]pinions of the federal circuits are not binding on state courts.”). 5.09 Appellee’s argument fails to acknowledge that chapter 9 of the Business Organization Code applies specifically, and only, to foreign entities. In fact the title of chapter 9 is “Foreign Entities.” Furthermore, the very first sentence of §9.251 is:

22 Hofrock v. Federal National Mortgage Association, No. A-13-CV-1013-LY. 23 (RR Vol. 3, page 21, line 8-18) Due to a typographical error, the Reporter’s Record spells “Hofrock” as “Hoffrau”.

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“For purposes of this chapter, activities that do not constitute transaction of business in this state include. . .” (emphasis added). 5.10 Although the Legislature expressly and unambiguously stated that §9.251 is to be applied only to foreign entities, the lower court erroneously applied the statute to National Mortgagelink, a domestic partnership. The court is required to “consider the statute as a whole.” Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). It cannot choose to apply an isolated provision in a statute and disregard the remaining language in the statute. Id. 5.11 Based on the language of the statutes, it is evident that the Legislature intended §9.251 to be applied to chapter 9 only and not to the entire Texas Business Organizations Code as Appellee contends. 5.12 National Mortgagelink is not a foreign entity. The definition of a foreign entity is “an organization formed under, and the internal affairs of which are governed by, the laws of a jurisdiction other than this state.” Tex. Business Organizations Code § 1.002(28). The court is bound to construe the term “foreign entity” to mean what the Legislature defined it to mean. Tex. Lottery Comm'n v. First State Bank of Dequeen, 325 S.W.3d 628, 637 (Tex. 2010). National Mortgagelink was formed in Texas and the Partnership Agreement filed with the Texas Secretary of State by National Mortgagelink specifically states it is to be governed by the laws of the State of

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Texas.24 5.13 Thus, chapter 9 of the Business Organization Code does not apply in this case and Appellee may not rely on the exceptions laid out in this chapter. On the other hand, Chapter 153 of the Texas Business Organization Code applies to limited partnerships. 5.14 The Legislature has chosen to draft two completely different and distinct chapters to distinguish from the statutes that apply to domestic limited partnerships and the statutes that apply to foreign entities. To interpret §9.251 in conjunction with §153.309 would result in conflicting law. 5.15 Therefore, it is clear that Business Organizations Code §9.251 does not apply. 5.16 The plain language in Tex. Business Organizations Code §153.309 precludes FNMA, as a successor/assignee of National Mortgagelink, from maintaining the present suit and any Order entered in this case granting relief to FNMA is void as a matter of law.

2. FNMA has not plead sufficient facts to demonstrate standing to sue Appellants.

5.17 Even if National Mortgagelink had not forfeited its right to transact business

24 Appellants respectfully request this court take judicial notice of the Partnership Agreement attached hereto in Appendix 1. Pursuant to Tex. R. Evid. 301(b), “[a]n appellate court may take judicial notice of a relevant fact that is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Freedom Communs., Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) (citations omitted). “Judicial notice of such a fact is mandatory if a party requests it and supplies the necessary information.” Id (citations omitted).

APPELLANTS’ BRIEF CAUSE NO.: 03-15-00350-CV PAGE 18 OF 22

in Texas, FNMA would still lack standing to pursue the present suit because FNMA

has not plead sufficient facts to demonstrate that it in fact has any interest in the

Property or that there is any relationship between FNMA and the Haddoxes,

landlord/tenant or otherwise.

5.18 The “[s]tanding doctrine focuses on whether a party has a sufficient

relationship with the lawsuit so as to have a justiciable interest in the outcome.”

HSBC Bank USA, N.A. v. Watson, 377 S.W.3d 766, 773 (Tex. App.—Dallas 2012,

pet. dism'd). An assignee has standing to assert only those causes of actions

previously belonging to its assignor. Id. Absolutely no evidence exists to establish

that National Mortgagelink assigned its rights under the Note to FDIC or any other

subsequent entity. Therefore, no such right was conferred to FNMA, there is no

relationship between FNMA and the Haddoxes and FNMA has no interest in this

forcible detainer suit.

5.19 FNMA alleges that the Note and Deed of Trust were assigned by National

Mortgagelink to FDIC, but fails to produce any evidence to support its assertion.

There is no assignment filed in the Travis County public records as required under

§192.007(a) of the Local Government Code25 and Appellee has never produced an

25 Sec. 192.007. Records of Releases and Other Actions.

(a) To release, transfer, assign, or take another action relating to an instrument that is filed, registered, or recorded in the office of the county clerk, a person must file, register, or record another instrument relating to the action in the same manner as the original instrument was required to be filed, registered, or recorded.

APPELLANTS’ BRIEF CAUSE NO.: 03-15-00350-CV PAGE 19 OF 22

assignment. The only evidence proffered by Appellee is an “Affidavit of Lost Assignment”.26 This “Affidavit of Lost Assignment” was fabricated by FDIC and is wholly insufficient to establish an assignment of the mortgage. The only actual purpose the “Affidavit of Lost Assignment” may serve is as a judicial admission by FDIC that no assignment exists. Therefore, FDIC had no rights or interest under the Note or Deed of Trust to convey to Onewest Bank making it impossible for Onewest Bank to assign any rights to FNMA. 5.20 FNMA is without authority to sue Appellants under the Note and FNMA has not plead sufficient facts to demonstrate standing to sue Appellants. Thus, the evidence is legally and factually insufficient to support the County Court’s judgment.

C. The doctrine of collateral estoppel bars FNMA from bringing the present forcible detainer action against the Appellants.

5.21 Although Texas does not give res judicata effect to forcible detainer judgments, the doctrine of collateral estoppel still applies. Collateral estoppel is narrower than res judicata. Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex. 1984). “It is frequently characterized as issue preclusion because it bars relitigation of any ultimate issue of fact actually litigated and essential to the judgment in a prior suit, regardless of whether the second suit is based upon the same

26 (RR Vol.4, p. 30)

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cause of action.” Id. 5.22 Where it involves the same parties, issues and subject matter, prior judgment is treated as an absolute bar to retrial of claims pertaining to the same cause of action. Id. 5.23 This lawsuit, like the three previous forcible detainer actions, involve the same parties, the same piece of real property, and the same issues. Therefore, the doctrine of collateral estoppel bars Appellee from bringing the present suit.

PRAYER

Appellants Gerald R. Haddox and Sharon Haddox respectfully request that this Court reverse the judgment of the County Court at Law in all things and remand for further action consistent with its opinion.

Respectfully submitted,

_________________________________ /s/ William B. Gammon WILLIAM B. GAMMON, SBN: 07611280 KARLA HUERTAS, SBN: 24087765 GAMMON LAW OFFICE, PLLC. 1201 Spyglass Drive, Suite 100 Austin, Texas 78746 Phone: 512-444-4529 Fax: 512-545-4279 Firm@GammonLawOffice.com COUNSEL FOR APPELLANTS

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been served via this court’s ECF system on this 3rd day of December, 2015 to the individuals listed below:

Sarah S. Robbins, SBN: 24074966 Hughes, Watters & Askanase, LLP 333 Clay, 29th Floor Houston, Texas 77002 Telephone: 713.759.0818 Facsimile: 713.759.6834 ssr@hwallp.com

By:_ /s/ William B. Gammon WILLIAM B. GAMMON, SBN: 07611280

CERTIFICATE OF COMPLIANCE In accordance with Texa Rule of Appellate Procedure 9.4(i) I hereby certify that the foregoing Appellant’s Brief contains 2,241words.

By: /s/ William B. Gammon WILLIAM B. GAMMON, SBN: 07611280

APPELLANTS’ BRIEF CAUSE NO.: 03-15-00350-CV PAGE 22 OF 22

No. 03-15-00350-CV

In The Court of Appeals For the Third District Court of Appeals Austin, Texas

GERALD R. HADDOX and SHARON HADDOX Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX

Item 1 Judgment of the Trial Court CR 207-208 Item 2 Order of the Justice Court CR 18 Item 3 Gerald R. Haddox’s Original Answer CR 34 – 50 Item 4 Complaint for Forcible Detainer CR 63 - 83 Item 5 Deed of Trust CR 74 – 80 Item 6 Order of the County Court CR 117 Item 7 Substitute Trustee’s Deed CR 130 – 133 Item 8 Order for new trial CR 169 Item 9 Order on plea to the jurisdiction CR 177 Item 10 Order on motion for reconsideration CR 178 Item 11 Order of the Justice Court CR 182 Item 12 Corporate Assignment RR Vol.4, p. 28 Item 13 Affidavit of Lost Assignment RR Vol.4, p. 30 Item 14 Notice of Forfeited Rights RR Vol.4, p. 33-34 Item 15 Certificate of Limited Partnership

No. 03-15-00350-CV

In The Court of Appeals For the Third District Court of Appeals Austin, Texas

GERALD R. HADDOX and SHARON HADDOX Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 1

Judgment of the Trial Court CR 207-208

No. 03-15-00350-CV

In The Court of Appeals For the Third District Court of Appeals Austin, Texas

GERALD R. HADDOX and SHARON HADDOX Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 2

Order of the Justice Court CR 18

No. 03-15-00350-CV

In The Court of Appeals For the Third District Court of Appeals Austin, Texas

GERALD R. HADDOX and SHARON HADDOX Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 3

Gerald R. Haddox’s Original Answer CR 34 – 50

No. 03-15-00350-CV

In The Court of Appeals For the Third District Court of Appeals Austin, Texas

GERALD R. HADDOX and SHARON HADDOX Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 4

Complaint for Forcible Detainer CR 63 - 83

No. 03-15-00350-CV

In The Court of Appeals For the Third District Court of Appeals Austin, Texas

GERALD R. HADDOX and SHARON HADDOX Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 5

Deed of Trust CR 74 – 80

No. 03-15-00350-CV

In The Court of Appeals For the Third District Court of Appeals Austin, Texas

GERALD R. HADDOX and SHARON HADDOX Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 6

Order of the County Court CR 117

No. 03-15-00350-CV

In The Court of Appeals For the Third District Court of Appeals Austin, Texas

GERALD R. HADDOX and SHARON HADDOX Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 7

Substitute Trustee’s Deed CR 130 – 133

No. 03-15-00350-CV

In The Court of Appeals For the Third District Court of Appeals Austin, Texas

GERALD R. HADDOX and SHARON HADDOX Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 8

Order for new trial CR 169

No. 03-15-00350-CV

In The Court of Appeals For the Third District Court of Appeals Austin, Texas

GERALD R. HADDOX and SHARON HADDOX Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 9

Order on plea to the jurisdiction CR 177

No. 03-15-00350-CV

In The Court of Appeals For the Third District Court of Appeals Austin, Texas

GERALD R. HADDOX and SHARON HADDOX Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 10

Order on motion for reconsideration CR 178

No. 03-15-00350-CV

In The Court of Appeals For the Third District Court of Appeals Austin, Texas

GERALD R. HADDOX and SHARON HADDOX Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 11

Order of the Justice Court CR 182

No. 03-15-00350-CV

In The Court of Appeals For the Third District Court of Appeals Austin, Texas

GERALD R. HADDOX and SHARON HADDOX Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 12

Corporate Assignment RR Vol.4, p. 28

11/~llfflll/~lffl~I/WII~IIHI/Iffli~IHI TRV 2010089111 I PC

Loan#: 511327

CORPORATE ASSIGNMENT OF DEED OF TRUST FOR GOOD AND VALUABLE CONSIDERATION, the sufficiency of which is hereby acknowledged, the undersigned, FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR INDYMAC FEDERAL BANK,FSB, SUCCESSOR TO INDYMAC BANK, F.S.B., WHOSE ADDRESS IS 6900 BEATRICE DR., KALAMAZOO, M149009, (ASSIGNOR), by these presents does convey, grant. sell, assign, transfer and set over the described deed of trust together with the certain note(s) described therein, together with all interests secured therehy, all liens, and any rights due or to become due thereon, to OneWest Bank, FSB, WHOSE ADDRESS IS 888 E. WALNUT STREET, PASADENA, CA 91101, ITS SUCCESSORS OR ASSIGNS, (ASSIGNEE)

Said Deed of Trust dated 08/3011999 executed by SHARON HADDOX AND GERALD R. HADDOX and recorded as lnstr# 1999098156 in Book , Page in the records of Real Property of TRAVIS County, Texas.

This assignment is made without recourse, representation or warranty, express or implied, by the FDIC in any capacity. IN WITNESS WHEREOF, the said corporation has caused these to be signed by its duly authorized officer, 0512812010. FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR INDYMAC FEDERAL BANK,FSB, SU CESSOR INDYMAC BANK, F .S.B.

STATE OF FLORIDA COUNTY OF PINELLAS BEFORE ME, the undersigned, a Notary Public in and for said County and State, on this day personally appeared BRYAN BL Y known to me to be the person and officer whose name is subscribed to the foregoing imtrumcnt and acknowledged to me that the same was the act of the said FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR INDYMAC FEDERAL BANK,FSB, SUCCESSOR TO INDYMAC BANK, F.S.B., a corporation, and that they executed the same as the act of such corporation for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE 05128/2010.

CHRISTOPHESl;.,.,'Y PoNio My commission expires:OS/03120 12

Document Prepared By: Robert E. Fletcher- c/o NTC, 2100 Alt. 19 North, Palm Harbor, FL 34683 (800)346-9152

When Recorded Return to: One West Bank. FSB C/0 NTC 2100 Alt. 19 Nonh Palm Harbor, FL 34683

OWBAS Il253194 USB-OWBAS -- CJ2577013 form5/frmtxgl

11111111111111111111111111111111111111111111111111 *11253194*

FILED AND RECORDED OFFICIAL PUBLIC RECORDS

tl~ Jun 22, 2010 02:28 PM 2010889111 PEREZTA: $16.00 Dana O.Baauvoir, County Clerk Travis County TEXAS

No. 03-15-00350-CV

In The Court of Appeals For the Third District Court of Appeals Austin, Texas

GERALD R. HADDOX and SHARON HADDOX Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 13

Affidavit of Lost Assignment RR Vol.4, p. 30

. TRV 2010089110 ;1;? II IIIII 111111111111111111111111111111111/IIIIIIJI 11111111 2 PGS Jf

511327L AFFIDAVIT OF LOST ASSIGNMENT

The undersigned BRYAN BL Y, being duly sworn deposes and states as follows:

I. That (s)he is alan ATTORNEY-IN-FACT of FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR INDYMAC FEDERAL BANK,FSB, SUCCESSOR TO INDYMAC BANK, F.S.B. having its principle place of business at 6900 BEATRICE DR., KALAMAZOO, MJ 49009 , an officer duly authorized to make this affidavit.

2. That (s)he has personal knowledge of the facts set forth in this Affidavit.

3. That FEDERAL DEPOSIT INSURANCE CORPORATlON AS RECEIVER FOR INDYMAC FEDERAL BANK,FSB, SUCCESSOR TO INDYMAC BANK, F.S.B. ("Current Mortgagee") is the owner and holder of a certain mortgage dated 08/30/1999 made by SHARON HADDOX AND GERALD R. HADDOX as mortgagors to NATIONAL MORTGAGELINK, I LTD as original mortgagee, which mortgage was recorded in the office of the Register or Recorder/Clerk of TRAVIS County, State of Texas on 09/01/1999 in Book/reel page or Clerk/Doc# 1999098156. This loan may or may not have been further assigned. The mortgage premise are known as: 6508 TA YLORCREST DR, AUSTIN, TX 78749

4. That Current Mortgagee owns and holds said mortgage as a result of sale and assignment thereof to Current Mortgagee from NATIONAL MORTGAGELINK, I LTD ("Mortgagee of Record").

5. That the files and records of Current Mortgagee relating to the mortgage do not contain either a recorded or an unrecorded instrument of an assignment from Mortgagee of Record to Current Mortgagee.

6. That the Affiant has concluded that the Assignment was lost, misplaced or destroyed before the same could be placed of record.

7. That Current Mortgagee is unable to obtain an instrument confirming the sale and assignment of said mortgage from the Mortgagee of Record.

8. That Current Mortgagee duly and properly acquired the mortgage, and has thereafter serviced the same and has in its possession the Note secured thereby and all of the other mortgage loan documentation pertaining to said mortgage.

9. That Current Mortgagee is the owner of the mortgage and the Note secured thereby, and has not further assigned or transferred said Note and mortgage to any other party.

10. That this affidavit is made to induce the Register/Recorder of said county to accept for recording this instrument, executed and acknowledged by Current Mortgagee, in place of said lost, misplaced or destroyed assignment.

111111111111111111111111111 111111111111111111 *11959965* HAR 12 2015

EXHIIIT

No. 03-15-00350-CV

In The Court of Appeals For the Third District Court of Appeals Austin, Texas

GERALD R. HADDOX and SHARON HADDOX Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 14

Notice of Forfeited Rights RR Vol.4, p. 33-34

Corpomtions &ction Carlos Cascos P.O.Box 13697 Secretary of State Austin, Texas 78711-3697

Office of the Secretary of State

The undersigned, as Secretary of State ofTexas, does hereby certify that the attached is a true and correct copy of each document on file in this office as described below:

NATIONAL MORTGAGELINK I, LTD. Filing Number: 7566210

Notice of Forfeited Rights for Non-Filing of July 07, 2006 Periodic Report

In testimony whereof, I have hereunto signed my name officially and caused to be impressed hereon the Seal of State at my office in Austin, Texas on March 12, 2015.

Carlos Cascos Secretary of State

Come visit us on the internet at http://www.sos.state.tx.us/ Phone: (512) 463-5555 Fax: (512) 463-5709 Dial: 7-1-1 for Relay Services Prepared by: CTOBAR TID: 10266 Document: 595747200002

lJ~t Roger Williams P.O. Box 12028 Secretary of State Austin, Texas 78711-2028

Office of the Secretary of State

July 7, 2006

Stephen F Sampaulesi NATIONAL MORTGAGELINK I, LTD. 3934 FM 1960 WEST, STE 100 Houston, TX 77068

Periodic Report- Second Notification Letter

Re: NATIONAL MORTGAGELINK I, LTD. File Number: 7566210

Dear Registered Agent:

Our records show that the above referenced limited partnership was notified over thirty (30) days ago of the need to file with this office the report required by law. You are hereby notified that the limited partnership's right to conduct affairs has been forfeited as of the date of this letter for failure to file the report. The limited partnership's right to conduct affairs may be revived by submitting the attached periodic report to this office, along with the required filing fee. This periodic report should be completed and received by this office on or before November 6, 2006 to avoid the cancellation or termination of the domestic limited partnership or the cancellation or revocation of the registration of the foreign limited partnership.

One copy of the required periodic report is enclosed, along with instructions for completing the report. Make any necessary changes to the preprinted information by typing or printing the new information in the area provided. Submit the periodic report, along with the required filing fee that is shown on the attached report, to the mailing address on the report form. Please make a copy of this report prior to mailing and retain for the limited partnership's records.

Please disregard this notice if you have mailed your document for processing within the last seven (7) days. If your records reflect that you filed the required report, please send a copy of your cancelled check showing payment of the filing fee.

For your convenience, the periodic report may be filed online through SOSDirect at http :1/www.sos. state.tx. us/ corp/sosda/index.s html.

If you have any questions about filing the periodic report or require assistance filing online using SOSDirect, please call 512-475-2705 or e-mail ReportsUnit@sos.state.tx.us.

Sincerely, Reports Unit Business and Public Filings Division

Enclosure

Come visit us on the Intemet@ http://www.sos.state.tx.us/ Phone: 512-475-2705 Fax: 512-463-1425 Dial: 7-1-1 for Relay Services

No. 03-15-00350-CV

In The Court of Appeals For the Third District Court of Appeals Austin, Texas

GERALD R. HADDOX and SHARON HADDOX Appellant,

v.

FEDERAL NATIONAL MORTGAGE ASSOCIATION Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 2, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. C-1-CV-14-005024

APPENDIX ITEM 15

Certificate of Limited Partnership