Opinion

Dana Dutschmann and Kevin Bierwirth v. Federal National Mortgage Association

Court: Texas Court of Appeals, 3rd District (Austin)
Filed: Mar 6, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.1%

The opinion

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

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

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

Prayer.. . ... ...... ... ......... ... ... .... ... ....... ........ ... ... ...... ... ...... ... ... ........ 37

Certificate of Service ... .... , . ... ... ..... , ... ... ....... .. ... ..... , ... ... ....... .. ......... 39

Certificate of Compliance ...... ... .. .......... .. . ......... .. ................... .. ....... .39

Appendix

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

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

Williams v. Bayview-Realty Assocs., 420 S.W.3d 358, 361

(Tex.App-Houston [14th Dist.] 2014, no pet.) ... ... .... .. ... ... ... ... ... .... .. .... 17

Williams 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

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

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.

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.

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.

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.

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.

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

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

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).

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

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);

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.

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

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

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,

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.

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,

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

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".

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

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

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

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.

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

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,

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

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

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

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."

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.

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

.. . ... . . . . . . '. .

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

.' ',' .

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.

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.

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

2. Defendants Dana Dutschmann,

.. AN NTSOF 3305 Spaniel

Drive, Austin, IX 78759 appea

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<shallnQtissue until the expiration of five days from the

date this judgrilcntis si.gned.

n ; 1 1 is further. ORDERED; ADJUDGED and DECREED that fc;ederal National

Mortgage Association shall also have and recover from Dcfcndants Dana Dutschmann and

Kevin Bierwirth.jointly and severally. the following:

a) Auomey fees ill the amount of$2~200.00;

b) Conditional additionalattomey 's fcesih theamountof$7,500.

is unsuccessfuUyappealed to the Court of Appeals:

.c) Conditional additional attomey's'iees in the amount 0

for review with the Texas Supreme Court is granted.

unsuccessfully appealed to the Texas Supreme Court;

d) Costs incurredi" prosecuting thiscru

c)Post·judgment interest on attomea

of five percent (5%). compounded annuall

Signed~ Augustl~.'lo 14.

1 mg

Court atLawNo.....

County;J{!JCJl~

EKlL M. SHEPPERD

59 . oundRock West ve, Suite 102

Round Rock. TX 78681 . . .... .

CouDselfor Dana'Dutschmann and Kevin' Bierwirth

EXHIBIT 2

THE STATZ.OF TE~ FIR S T WR:t T. OF PO SSE SS ION.

.County of Trav.is CAUSE NO. p.1~GN~11·000417

To the SherifforanyConstableofany¢o~nty oftl:\e Stat.ofT.xas -GREETING:

WH2REAS~ on .~a. 'APR~L 2~, 2Q11.,

>•• .. : : . . . . . . -. ".

.. 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. <J

Wl;TNESS, AMALIA RODRIGUEZ- MENDOZA, CO\Jrts of'. Travis County, Texas ..

Given under my hand and seal.of offiCe a January 24, 2013.

J.U:QVESTED BY: AMAt,IA RODRIGUEZ-MENDOZA

Travis Countyo.i.strictClerk

Travis CQUnty .Courthouse

1000 GuadalUpe,p·.. O;Box679003 (78761)

78701

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Page 1 of2

THE STATlOI''l'EXAS .. :r 'R S TWl(;IT 0 I' POSS E SS :r 0 N Exec. Doc. CV13 Page 013

County of Trav:i.s CAUSENO.O"'-1:"'GN'"'11-0()04i7

Executed the ~

Service Fee: $ _ __

of Server

~~';"";'''';''''''''';''''''-'-.....;.-'- _ _ _ _,.... County; Texas

D-1-GN-11-000417 CONSTABLE 038 - 000000150

Lil Original

Page 2 of 2

EXHIBIT 3

THESTJ!TE OF'TEXAS . SEC O.N D ~ R IT OF PO 8 S E SS.IO N Exec. Doc. cv13 Page 013

County of Tra~is CAUSE NO. D-1~GN-11 ;.000417

To the Sheriff or any Constable of any County of the. Stat,e of Texas .. GR.EETING:

WHEREAS, on the APRIL 21, .2011,

DEFENDAN'i'/GRANTEE, FEDERAL NATIONAL MORTGAGE ASSOCIATION, FOR TIB-THE INDEPENDENT

BANKERSBANK, DEFENDANT/GRANTOR

recovered in the District Court of the 200TH JUDICIAL DISTRICT COURT in and

judgment against

PLAINTIFF, KEVIN BIERWIRTH

for the sum of $0.00 Dollars,

and for tit.le to.and. possession of the follQwing described property:

v·

LOT TWENTY-SIX (26), SLOCK "A", WALNUT CROSSING SECTION ()N SUBDIVISION IN 'tRAVIS

COUNty, TEXAS AC<::ORDING TO THE MAP OR PLAT RECORDED IN V 76, PAGE 292, OF THE

PLAT RECORDS OF TRAVIS COUNTY, TEXAS. AAILING ADDRESS THE PROPERTY IS 330.5

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 i f 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 gment, then out of the property, goods,

chattels ,lands, and tenements of said PLAIN'rIFF cf to execution under the law of this state

you will cause to be made the said sum ot money lancethe,reofremaining unpaid, as in the c.ase

of ordinary executions.

YOU SHALL FORTHWITH exe.cute t hl.S .wnot

accor d~O"O

to l.ts terms and have said sums of money, together

with this writ showing how you have execute t e same, before said court, at the courthouse thereof

in Austin, Texas, within 30. days.

\lITNESS, AMALIA RODRIGUEZ-.MENDOZA, .the District Courts of Travis County, Texas.

Given under,my hand and seal of office Austin, Texas, AUGUST 22, 2013 •

REQUESTED BY: AMiU.IA RODRIGUEZ;;"MENDOZA

, Travis County District Clerk

(JO Trayis county Courthouse

Autn,~..xa.\.:u,

1000 Guadalupe, P.O. Box 679.003 (78767)

.Y~I~Z' DePMt~

Page 1 of 2

EXHIBIT 4

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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

'. 'I v

). 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<kl: (a) a copy of your lease or.renta1

agreement, or if yOil do not have a written lease or· rental agreement a writtenex:planation of the terms· of the

agreement under which you occupy the property, including the date you entered into the agreement, the names of all

parties who entered into the agreement, the tenn of the agreement, the amount of the monthly rent, any utilities paid

by the landlord, the ·8ll1Ount of your security deposit, and whether you receive assistance under the Department of

Housing and UrbanDevelopment's Section 8 HousingProgram; (b) proofofyoW' lastrental payment and any security

deposit; (c) list of any conditions at the property that require repair; and (d) whether you are the child, spouse or

parent ofthe mortgagor.

Ifyou fail to vacate the Premises pursuant to this notice, a Forcible Entry and Detainer suit shall be filed in the Justice

court for possession ofthe Premises, Without further notice to you. Upon entrY ofJuclgJnent,the Purchaser will seek

to enforce all of its rights, including obtaining possession of the Premises, eviction,· and possession or removal of all

personal property from the Premises upon wbich your personal belongings would be removed and subject to loss.

This notice also serves asa Notice of Termination and Nonrenewal of any leases and tenancies which survive the

foreclosure sale pursuant to theterms of this notice.

Ifyou are an active member ofthe United States Arm.edForces ora dependalrtofan active Service Member, you may

be entitled to rights as· pi'Ovidedin the Servicemembers Civil Relief Act. In such case, you or YOW' attorney should

contact this laW firm immediately to determine if you fall under the protection oftbe Act.

This is an attempt to collect a debt and any infoImation provided will be used for that purpose.

Sincerely,

Robertson & Anschutz

. 10333 RicbmondAvenue. Sui~ SSO

Houston. TX 77042

Ruth W. Gamer

cc:

Via first·class mail

RA027717S - NotToVacate-OO.for- Rev. 0412612012

EXHIBITS

ROBERTSON ANSCHUTZ VETTERS

AlTORNtYSATLAW

RUTH W. GARNER 10333 Richmond Avenue, Suite 550

rgarner@ravdocs.com HOUSTON, TExAs 77042

TELEPHONE ('i13) 244-1390

TBLBCOPY (713) 888-2703

Website www.ravdocs.com

June OS, 2013

Loan No. 1419975022

Kevin Bierwirth SENT BY CERTIFIED MAIL

13276 Research 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 ownerofthe 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 formal notice that you must vacate the property

within three (3) days from the date this letter is delivered to the property. Ifyou do not vacate the property before the

expiration of those three (3) days this law firm will, shortlythereafier, flle a forcible detainer (eviction) suit against

you. If you remain in the property more th~ ten (10) days after you receive. this letter. ~d if this law flrmflles 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 attentionto this matteris(equired. Please

begin to vacate all of your personal belongings quickly!

This letterwas sent by both certified mail and regular mail. Should you refuse delivery ofthe certifled}etter,please

be advised that you are still on notice of the contents ofthis letter. Your refusal to accept the certified letter will not

delay the eviction.

SPECIAL NOTICE TO TENANTS

Notwithstanding this demand,lfyou are a bona fide tenant who executed a lease after May 20, 2009 with the

mortgagor of the Premises in ananns-Iength transaction; and for a substantially fair market rent or under a federal,

state or local subsidized or reduced rent, and you are not a child, spouse or parent ofthe mortgagor 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 sentifthe Premises is sold to a person for their

primary residence.

Ifyou claim to hea tenant or subtenant ofthe mortgagor, then within three (3) days after delivery of this notice, please

notify the undersigned in writing .at the above address of the tenancy and provide: (a) a copy of your lease or rental

agreement, or if you do not have a written lease or rental agreement a written explanation of the terms of the

agreement under which you occupy the property, inCluding the date you entered into the agreement, the namesofall

RA027717S - NotToVacate-OO.for - Rev. 0212112013

· . parties who entered into the agreement, the term of the agreement, the amount of the monthly rent, any utilities paid

'. ".'. .R~ the

landlord, the amount of your security deposit, and whether you receive assistance under the Department of

'.:; f\ 'J 1 hJt6using and Urban Development's Section 8 Housing Program; (b) proofofyour last rental payment and any security

deposit; (c). list of any conditions at the property that require repair; and (d) whether you are the child, spouse or

parent of the mortgagor. .

If you fail to vacate the Premises pursuant to thisnotice,aForcibleEntry and Detainer suit shall be filed in the Justice

Court for possession ofthe Premises, without further notice to you. Upon entry of Judgment, the Purchaser will seek

to enforce allonts rights, including obtaining possession of the Premises, eviction, and possession or removal of all

personal property from the Premises upon which your personal belongings would be removed and subject to loss.

This notice also serves as a Notice of Termination and Nonrenewal of any leases and tenancies which survive the

foreclosure sale pursuant to the terms of this notice.

Ifyou are an active member ofthe United States Armed Forces or a dependant of an active Service Member, you may

be entitled to rights'as provided in theServicemembers Civil Relief Act. In such case, you or your attorney should

contact this law firm inunediately to determine if you fall under the protection of the Act.

This is an attempt to collect a debt and any information provided will be used for that purpose.

Sincerely,

Robertson Anschutz Vetters

10333 Richmond Avenue, Suite 550

Houston. TX 77042

Ruth W. Gamer

CC:

Via first class mail

RA027717S • NotToVacate-OO.for - Rev. 0212112013

EXHIBIT 9

ROBERTSON ANSCHUTZ VETTERS

AttORNEYS AT LAW

JcffryB. Lewis 10333 Richmond Avenue, Suite 550

JLewiS@RAVDocs . com HOusTON,Til){A.S 77042

TELEPHONE (713)244.1390

TilLECOpy (713) 888·2703

Wcbsh. www.ravdocs.Com

May 06, 2014

Loan No. 1419975022

Kevin Bierwirth SENT BY CERTIFIED MAIL

13276 Research Blvd. #204 RETURN RECEIPT REQUESTED

Austin, TX 78750 AND BY REGULAR MAIL

Re: Notice to Vacate thePreinises

Investor No.: 4004487819

Property: 3305 Spaniel Drive, Austin, TX 78759

bear Kevin Bierwirth:

This finnrepresents Federal National Mortgage Association, tb.e new owner ofthe property identified above. That

new owner acquired the property through aforeclosuresale held on June 07,2011.

The purpose of this letter is to givefonnal demand for possession and fonnal notice that you must vacate the property

within three (3)days from the date this letter is delivered to the property. If you do not vacate the property before the

expiration of those three (3) days this lawftnnwill, shortly thereafter, file a forcible detainer (eviction) suit against

you. If you remain in the property more than ten (10) days after you receive this letter and if this law finn files.a

forcible detainer (eviction) suit, you may be liable for our client's attorney's fees and its court costs. You mayalso be

liable for the reasonable rental value of the property. Your immediate attention to this matter is required. Please

begin to vacate allofyourpersoJUll belongings quickly!

This letter was sent by both certified mail and reguiarmail. Should you refuse delivery of the certified letter, please

be advised that you are still onnotice.ofthe contents of this letter. Yourrefusal to acceptthe certified letter will not

delay the eviction.

SPECIAL NOTICE TO TENANTS

Notwithstanding this. de1l1and, if you are a bona fide Jenant who executed a lease after May 20, 2009 with the

mortgagor ofthe·PreIDises in an !.Irit1s·length transaction, and fora substantially fair market rent or under a federal,

state or local subsidized or reduced rent, and you are not a child, spouse or parent of the mortgagor on the property,

then demand is hereby made that you vacate the PreIDiseswithin ninety (~O) 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 the1ease.

Additionally, if your lease was executed prior to Ma.y 16,2011, then you may remain in the PreIDises,untilthe end

of the tennofyour le~e 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 if the Premises is sold to a person for their

primary residence.

RA0277175 - NotToVacate·OO.for· Rev. 12/18/2013

14A,', .1"1,11. ''11'; iU

]fYOl.l:claimtQbeaten$ltor Sl.lbtenantofthemortgagor, thertWithlnthree(3)days afterdelivery of this notice, please

qotifythe l,lqder$igrted.in writirtgatthe above ad#ssof'the:tenancy atUlprovide;(a)acopyofyour lease or rental

agreeinent;orif you 40 not. bavea>}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

... "'.""

... ""

. ."

.... '

": " >. . '-.

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

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.

.•.

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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'

$:?~ . 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:

0.)

ANDIORALL OCCUPANTSOF 3305 SpaDlelDrive, Austin, TX 78759, hereafter referred to as ItDefendants".

, whether one or more, iII1d for cause of action shows: ,,

;

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 .

. ' .

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 ~

.. ~

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;

)1 in.r.- CJ!I .

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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RAOl7117S ~ Eviotion Petition.fur~ Rev~ 121l91l0H

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.