CASE NO.

05-10-00676-CV
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS
AT DALLAS
**********************************************
HSBC BANK USA, N.A., as Indenture
Trustee of the Fieldstone Mortgage
Investment Trust, Series 2004-4
Appellant
v.
JEANIE WATSON, TONY WATSON, and
MATTHEW G. AIKEN,
Appellees.
**********************************************
BRIEF OF APPELLEE, MATTHEW G. AIKEN
**********************************************
Jeffrey S. Davis
Texas Bar No. 00787334
JEFFREY S. DAVIS
Attorney at Law
1422 Berry Drive
Cleburne, Texas 76033
817/240-9234
FAX # 817/423-7348
ATTORNEYS FOR APPELLEE,
MATTHEW G. AIKEN
ORAL ARGUMENT REQUESTED
TABLE OF AUTHORITIES
TABLE OF AUTHORITIES
TABLE OF CASES CITED
TABLE OF STATUTES AND RULES CITED .
STATEMENT OF THE CASE .
ISSUES PRESENTED
STATEMENT OF FACTS
SUMMARY OF THE ARGUMENT
ARGUMENT
REPLY ISSUE NUMBER ONE
The trial court was correct in its ruling
to grant the Appellees' respective Pleas to
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1
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2
the Jurisdiction and to dismiss the Bill of Review . . . 3
REPLY POINT TWO
The trial court did not err because the
dismissal of the Petition for Bill of Review
was not based upon res judicata
REPLY POINT THREE
The trial court did not err in dismissing
the Petition for Bill of Review because the
Petition for Bill of Review is an impermissible
collateral attack on the Default Judgment . . .
REPLY POINT FOUR
The trial court did not err in dismissing the
Petition for Bill of Review because Appellant
did not satisfy all of the elements for a
Bill of Review . . . . . . . . . . . . . . . .
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3
3
4
REPLY ISSUE NUMBER FIVE
The trial court did not err in dismissing the
Petition for Bill of Review because Appellant
did not present evidence to support is claim of
standing to file the Petition for Bill of Review
A. STANDARD OF REVIEW
B.
c.
D.
E.
F.
PRAYER
1. Evidential Standard for a Plea to
2.
3.
the Jurisdiction . . . . . . .
Evidential Standard for Affidavits .
Evidential Standard for Documents
Referenced in Affidavits .
JURISDICTIONAL FACT ISSUES
1.
2.
No Evidence That Appellant Was Assigned
The Adjustable Rate Note . . . . .
No Evidence That Appellant Was Assigned
The Rights of Fieldstone Mortgage Company
in the Final Default Judgment . . . .
APPELLEE'S OBJECTIONS TO THE AFFIDAVIT
OF TERESA BOUDREAUX . . . . . . . .
APPELLANT'S RESPONSE TO THE OBJECTIONS
STATEMENTS IN THE AFFIDAVIT OF
TERESA BOUDREAUX WHICH WERE OBJECTED TO
THE TRIAL COURT GRANTED ADDITIONAL TIME
TO FILE OBJECTIONS AND TO RESPONDS TO
OBJECTIONS . . . . . . . . .
CERTIFICATE OF SERVICE
APPENDIX
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TABLE OF CASES CITED
Ams Construction Co., Inc. v.
Warm Springs Rehabilitation Foundation, Inc.,
94 S.W.3d 152 (Tex. App. - Corpus Christi
2002, no pet.) ............... .
Barrow v. Durham, 574 S.W.2d 857
(Tex. Civ. App. -Corpus Christi 1978),
aff'd, 600 S.W.2d 756 (Tex. 1980) ...
Bland Independent School District v. Blue,
6
8
34 S.W.3d 547, 555 (Tex. 2000) ............. 4,5
Blankenship v. Robins, 899 S.W.2d 236
(Tex. App. -Houston [14th Dist.] 1994, no writ)
Brownlee v. Brownlee, 665 S.W.2d 111 (Tex. 1984)
Ceballos v. El Paso Health Care Systems,
881 S.W.2d 439 (Tex. App. - El Paso 1994,
pet. denied) ........... .
Chhim v. University of Houston, 76 S.W.3d 210
(Tex. App. - Texarkana 2002, pet. denied)
City of Fort Worth v. Robinson, 300 S.W.3d 892
(Tex. App. -Fort Worth 2009, no pet.) ..
Coastal Cement Sand v. First Interstate Credit Alliance,
956 S.W.2d 562 (Tex. App. -Houston [14th Dist.]
. . 7' 9
12
7
7
6
1997, pet. denied) . . . . . . . . . . . . . . . . . 12
Easy Living, Inc. v. Cash, 617 S.W.2d 781
(Tex. Civ. App. - Fort Worth 1981, no writ)
Fernandez v. Frost National Bank, 267 S.W.3d 75
(Tex. App. - Corpus Christi 2008, pet. filed)
FKM Partnership v. Board of Regents of the
University of Houston System, 255 S.W.3d 619
(Tex. 2 0 0 8)
Gerstacker v. Blum Consulting Engineers, Inc.,
884 S.W.2d 845 (Tex. App. - Dallas
1994, writ denied) . . . . . . . . . . . .
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9
8
5
12
Gwen Ross & Phoenix II, Inc. v.
Linebarger, Goggan, Blair & Sampson, L.L.P.,
2010 Tex. App. LEXIS 924 (Tex. App. -
[Hou. 1st Dist.) 2010) ........... .
Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008)
Lerma v. Bustillos, 720 S.W.2d 204
(Tex. App. - San Antonio 1986, no writ)
March v. Victoria Lloyds Insurance Co.,
773 S.W.2d 785 (Tex. Civ. App. - Fort Worth
1990, writ denied) . . . . . .....
Radio Station KSCS v. Jennings, 750 S.W.2d 760
(Tex. 1998) . . . . . . .
Rodriguez ex rel. Rodriguez v. EMC Mortgage Corp.,
94 S.W.3d 795, 798 (Tex. App. -
San Antonio 2002, no pet.)
Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298
(Tex. 1962) . . . . . . . . . . .
Sullivan v. City of Fort Worth, 2011 Tex. App.
6
6
8
23
7
8
23
LEXIS 850, 4 {Tex. App. - Fort Worth 2011) ....... 5,6
Texas Department of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 227 (Tex. 2004)
Texas National Corporation v.
United Systems International Inc.,
493 S.W.2d 738, 741 {Tex. 1973)
Warth v. Seldin, 422 U.S. 490, 499 {1975)
Zarges v. Bevan, 652 S.W.2d 368, 369 {Tex. 1983)
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4,5
6
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10
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TABLE OF STATUTES AND RULES CITED
TEX. R. CIV. PROC. 166a(f)
TEX. R. EVID. 602 .
TEX. R. EVID. 1001
TEX. R. EVID. 1003
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CASE NO. 05-10-00676-CV
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS
AT DALLAS
**********************************************
HSBC BANK USA, N .A., as Indenture
Trustee of the Fieldstone Mortgage
Investment Trust, Series 2004-4
Appellant
v.
JEANIE WATSON, TONY WATSON, and
MATTHEW G. AIKEN,
Appellees.
**********************************************
BRIEF OF APPELLEE, MATTHEW G. AIKEN
**********************************************
TO THE HONORABLE JUSTICES OF SAID COURT OF APPEALS:
NOW COME, MATTHEW G. AIKEN, an Appellee in the above styled
and numbered cause, who submits this his Appellee's Brief.
References to the Reporter's Record shall be denoted as "RR", with
references to the Clerk's Record denoted as "CR", and references to
the Appendix denoted as "APP", with the appropriate Appendix number
following. Appellee has filed a Request for Supplemental Clerk's
Record to include the document in the Appendix.
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STATEMENT OF THE CASE
Appellee does not agree with the Statement of the Case as set
forth by Appellant in its Brief. Appellee incorporates by
reference herein and adopts fully the Statement of the Case as set
forth in the Brief filed by Appellees, Jeanie Watson and Tony
Watson, as amended and supplemented, as if their Statement of the
Case was set orth fully herein.
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ISSUES PRESENTED
Reply Point One
The trial court was correct in its ruling to grant the
Appellees' respective Pleas to the Jurisdiction and to
dismiss the Bill of Review.
Reply Point Two
The trial court did not err because the dismissal of the
Petition for Bill of Review was not based upon res
judicata.
Reply.Point Three
The trial court did not err in dismissing the Petition
for Bill of Review because the Petition for Bill of
Review is an impermissible collateral attack on the
Default Judgment.
Reply Point Four
The trial court did not err in dismissing the Petition
for Bill of Review because Appellant did not satisfy all
of the elements for a Bill of Review.
Reply Point Five
The trial court did not err in dismissing the Petition
for Bill of Review because Appellant did not present
evidence to support is claim of standing to file the
Petition for Bill of Review.
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STATEMENT OF THE FACTS
Appellee does not agree with the Statement of the Facts as set
forth by Appellant. Appellee incorporates by reference herein and
adopts fully the Statement of Facts as set forth in the Brief filed
by Appellees, Jeanie Watson and Tony Watson, as if their Statement
of Facts was set forth fully herein.
SUMMARY OF THE ARGUMENT
Appellant did not produce evidence at the hearing on the Pleas
to the Jurisdiction sufficient to establish that it has standing to
file the Bill of Review. While Appellant produced copies of the
Default Judgment, Warranty Deed with Vendor's Lien, Deed of Trust,
and Assignment of Note and Deed of Trust, Appellant did not produce
any evidence that it was assigned Fieldstone Mortgage Company's
right to pursue its claims to set aside the Default Judgment, or
that Mortgage Electronic Registration Systems, Inc., a/k/a MERS,
has the authority or right to assign the Adjustable Rate Note to
Appellant. As such, Appellant did not produce any evidence that it
is the owner and holder in due course of the Adjustable Rate Note
and Deed of Trust.. Appellant attempted to produce such evidence
through the Affidavit of Teresa Boudreaux, a business records
custodian of Litton Loan Servicing, LP. Appellee made numerous
objections to the affidavit. Ms. Boudreaux sought to aver to facts
based upon documents not attached to her affidavit and her
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affidavit was full of conclusory and hearsay statements. The
result is that the Affidavit of Teresa Boudreaux is almost
completely impermissible hearsay, which hearsay also includes the
documents attached thereto which were not properly authenticated.
As Appellant failed to present sufficient evidence to
establish it had standing to file the Bill of Review, the trial
court was correct in its granting of his Plea to the Jurisdiction,
dismissal of the Bill of Review, and entry of the Order Denying
Bill of Review.
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ARGUMENT
Reply Point One
The trial court did not err in granting the Pleas to the
Jurisdiction because Appellant does not have standing to
file the Petition for Bill of Review.
Appellee incorporates by reference herein and adopts fully the
arguments and authorities set forth by Appellees, Jeanie Watson and
Tony Watson, in their Brief as if their Brief was set forth fully
herein.
Reply Point Two
The trial court did not err because the dismissal of the
Petition for Bill of Review was not based upon res
judicata.
Appellee incorporates by reference herein and adopts fully the
arguments and authorities set forth by Appellees, Jeanie Watson and
Tony Watson, in their Brief as if their Brief was set forth fully
herein.
Reply Point Three
The trial court did not err in dismissing the Petition
for Bill of Review because the Petition for Bill of
Review is an impermissible collateral attack on the
Default Judgment.
Appellee incorporates by reference herein and adopts fully the
arguments and authorities set forth by Appellees, Jeanie Watson and
Tony Watson, in their Brief as if their Brief was set forth fully
herein.
-3-
Reply Point Four
The trial court did not err in dismissing the Petition
for Bill of Review because Appellant did not satisfy all
of the elements for a Bill of Review.
Appellee incorporates by reference herein and adopts fully the
arguments and authorities set forth by Appellees, Jeanie Watson and
Tony Watson, in their Brief as if their Brief was set forth fully
herein.
Point Five
The trial court did not err in dismissing the Petition
for Bill of Review because Appellant did not present
evidence to support is claim of standing to file the
Petition for Bill of Review.
A. STANDARD OF REVIEW
1. Evidential Standard for a Plea to the Jurisdiction
a plea to the jurisdiction challenges the existence of
jurisdictional facts, we consider relevant evidence submitted by
the parties when necessary to resolve the jurisdictional issues
raised, as the trial court is required to do." Texas Department of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004) citing
Bland Independent School District v. Blue, 34 S.W.3d 547, 555 (Tex.
2000). the consideration of a trial court's subject matter
jurisdiction requires the examination of evidence, the trial court
exercises its discretion in deciding whether the jurisdictional
determination should be made at a preliminary hearing or await a
fuller development of the case, mindful that this determination
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must be made as soon as practicable." Miranda, 133 S.W.3d at 227,
citing Bland, 34 S. W. 3d at 554. "Then, in a case in which the
jurisdictional challenge implicates the merits of the plaintiffs'
cause of action and the plea to the jurisdiction includes evidence,
the trial court reviews the relevant evidence to determine if a
fact issue exists . . If the evidence creates a fact question
regarding the jurisdictional issue, then the trial court cannot
grant the plea to the jurisdiction, and the fact issue will be
resolved by the fact finder. However, if the relevant evidence is
undisputed or fails to raise a fact question on the jurisdictional
issue, the trial court rules on the plea to the jurisdiction as a
matter of law." Id., at 227-228. "[T]his standard generally
mirrors that of a summary judgment under Texas Rule of Civil
Procedure 166a (c)." Id. at 228. "The trial court is allowed to
conduct a hearing on a plea to the jurisdiction or motion to
dismiss for lack of jurisdiction in a manner similar to how it
hears a summary judgment motion, and may consider affidavits and
other summary judgment-type evidence." FKM Partnership v. Board of
Regents of the University of Houston System, 255 S.W.3d 619, 628
(Tex. 2008) citing Miranda, 133 S.W.3d, at 227. "The [defendant]
is required to meet the summary judgment standard of proof for its
assertion that the trial court lacks jurisdiction." Sullivan v.
City of Fort Worth, 2011 Tex. App. LEXIS 850, 4 (Tex. App. - Fort
Worth 2009, no pet.), citing, Miranda, 133 S.W.3d at 228. "Once
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the (defendant] meets its burden, the plaintiff is then required to
show there is a disputed material fact regarding the jurisdictional
issue." Sullivan, 2011 Tex. App. LEXIS 850 at 4, citing Miranda,
133 S.W.3d at 228. See also Gwen Ross & Phoenix I I, Inc. v.
Linebarger, Goggan, Blair & S a ~ s o n , L.L.P., 2010 Tex. App. LEXIS
9243, 18 (Tex. App. - [Hou. 1st Dist.] 2010}, citing Miranda, 133
S.W.3d at 228; and City of Fort Worth v. Robinson, 300 S.W.3d 892,
895 (Tex. App. - Fort Worth 2009, no pet.)
2. Evidential Standard for Affidavits
It is axiomatic that a witness may not testify to a fact
unless that witness has personal knowledge of the matter he intends
to testify about. TEX. R. EVID. 602. An affidavit that shows no
basis for the affiant's personal knowledge is legally insufficient.
See Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) An affiant
must show that he is competent to aver to the facts alleged in his
affidavit. See Ams Construction Co., Inc. v. Warm Springs
Rehabilitation Foundation, Inc., 94 S.W.3d 152, 158 (Tex. App. -
Corpus Christi 2002, no pet.} (an affiant must set forth facts
which establish his competency, expertise or personal knowledge
which support the opinions given or the conclusions drawn,
otherwise, the facts averred are based upon the affiant's
subjective belief and the alleged facts are not competent summary
judgment}. Simply stating in an affidavit that the affiant's
knowledge is based upon personal knowledge is inadequate. Radio
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Station KSCS v. Jennings, 750 S.W.2d 760, 761-61 (Tex. 1998)
Aidavits must set orth specific acts and not legal conclusions.
See Chhim v. University of Houston, 76 S.W.3d 210, 216 {Tex. App. -
Texarkana 2002; pet. denied).
3. Evidential Standard for Documents Referenced in
Affidavits
A sworn or certified copy of every document referred to in an
affidavit must be attached to or served with the affidavit. See
TEX. R. CIV. PROC. 166a(f); TEX. R. EVID. 1001, 1003; and Ceballos
v. El Paso Health Care Systems, 881 S.W.2d 439, 444-445 (Tex. App.
- El Paso 1994, pet. denied) The failure to attach to an affidavit
documents "referred to therein is not simply a defect in the form
of [the] affidavit, but rather is a defect in the substance
thereof." Id. at 445. A copy of a promissory note must be
attached to an affidavit showing that the attachment is a true copy
of the original and that the plaintiff is the present owner and
holder of the note. See Zarges v. Bevan, 652 S.W. 2d 368, 369 (Tex.
1983); Texas National v. United Systems International
Inc., 493 S.W.2d 738, 741 (Tex. 1973); Blankenship v. Robins, 899
S.W.2d 236, 238 (Tex. App. -Houston [14th Dist.] 1994, no writ).
B. JURISDICTIONAL FACT ISSUES
"To have standing to bring a bill of review, the plaintiff in
the bill of review action must have been a party to the prior
judgment or have had a then-existing right or interest prejudiced
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by the judgment. " Fernandez v. Frost National Bank, 2 67 S. W. 3d 7 5,
81(Tex. App. -Corpus Christi 2008, pet. filed), citing Rodriguez
ex rel. Rodriguez v. EMC Mortgage Corp., 94 S.W.3d 795, 798 (-Tex.
App. -San Antonio 2002, no pet.); Lerma v. Bustillos, 720 S.W.2d
204, 205 (Tex. App. -San Antonio 1986, no writ); and Barrow v.
Durham, 574 S.W.2d 857, 860 (Tex. Civ. App.- Corpus Christi 1978),
aff'd, 600 S.W.2d 756 {Tex. 1980).
In this matter it is clear, and undisputed, that Appellant was
not (1) a party to the judgment in Cause No. 05-02181; First
Source Real Estate Services & Property Management, Inc., Blue Star
Title, Inc. , and Tim Tor lincasi d/b/a Supreme Lending; In the
District Court, 192nd Judicial District, Dallas County, Texas.
Therefore_, the fact issue for the Court to decide is whether
Appellant had a then-existing right or interest prejudiced by the
"\.
judgment in said district court case. In order to establish such,
Appellant must establish a clear chain of title in order to have
any opportunity to claim that: (1) it is the owner of the note and
deed of trust in order to be able to claim that it is standing in
the shoes of Fieldstone Mortgage Company, as Fieldstone Mortgage
Company's rights -exist-ed in and to th-e not-e and d-e-ed of trust, at
the time of the entry of the Final Default Judgment; and (2) that
it is the "successor-in-interest" to Fieldstone Mortgage, as
concerns Fieldstone Mortgage's rights in the Final Default
Judgment, and the suit in which the judgment was entered. However,
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it is clear that Appellant could not do so.
1. No Evidence That Appellant Was Assigned The
Adjustable Rate Note
In order to support a lien, there must be an underlying
indebtedness. In the absence of a debt, there is no lien which can
be foreclosed upon. Easy Living, Inc. v. Cash, 617 S.W.2d 781, 785
(Tex. Civ. App. Fort Worth 1981, no writ) Thus, with no
indebtedness owing to Appellant, there is no lien to foreclose
upon, and, therefore, no necessity for a Bill of Review to reverse
the Final Default Judgment. Appellant presented no evidence to the
trial court that it was the owner of the Adjustable Rate Note
purportedly assigned to it, as is required.. See Zar.ge.s 652 S .. W .. 2d
at 369; Texas National Corporation, 493 S.W.2d at 741;
Blankenship, 8 99 S. W. 2d at 238. While Appellant attempted to do so
through the Affidavit of Teresa Boudreaux, for the reasons stated
below in Paragraph E, such attempt fails. As well, the plain
language of the Adjustable Rate Note does not assign any rights
under the terms of the Note to any third-party, whether Mortgage
Electronic Registration Systems, Inc., (hereinafter ''MERS-'-'), or
another entity. (CR6:P1410) While Appellant was assigned the Deed
of Trust, and, for the sake of argument (not an admission), the
ability to foreclose on the real property secured by the Deed of
Trust (as MERS would have been able to do), the fact remains that,
had MERS oreclosed_, the proceeds romthe oreclosure would have
gone to Fieldstone, as the holder of the Adjustable Rate Note. The
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Deed of Trust does not state, as much as Appellant want it to, that
MERS
1
or Fieldstone, can assign the Adjustable Rate Note.
(CR-6: P1351) Th-er-e is simply nothing s-et f-orth in th-e Deed of Trust
that allows for an assignment of the Adjustable Rate Note.
Therefore, without any documentation that shows how MERS acquired
a right to the Note, if it acquired any right, Appellant cannot
establish a chain of title on the Note and it cannot establish that
it is the holder in due course and owner of the Note.
Therefore the trial court was incorrect, in part, in its
Conclusions of Law Numbers 7 and 8 to the extent the Conclusions of
Law state that Appellant is the successor-in-interest to Fieldstone
Mortgage Company, as concerns the Adjustable Rate Note, and that
Appellant received an assignment of the Adjustable Rate Note.
(CR7: 1773) All other aspects of and conclusions contained in
Conclusions o .Law Numbers 7 and 8 are correct.
2. No Evidence That Appellant Was Assigned The Rights
of Fieldstone Mortgage Company in the Final Default
Judgment
A party cannot assert the legal rights and interests of third
parties. See Warth v. Seldin, 422 U.S. 490, 499 (1975) Appellant
presented no evidence to the trial court to support its assertion
that it is the to Fieldstone Mortgage, as
concerns Fieldstone Mortgage CompanyJ's rights in the Final Default
Judgment, and the suit in which the judgment was entered. In order
to establish such a right Appellant would have to produce the
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agreement between Fieldstone Mortgage and MERS which sets forth
their relationship, which document was not produced by Appellant.
Without such document produced, there is no evidence that MERS had
the ability or right to assign to Appellant the rights of
Fieldstone Mortgage in the Final Default Judgment and the under
lying suit, including the right to file a bill of review. The only
evidence of any relationship between Appellant and Fieldstone is
set forth in the Assignment of Note and Deed of Trust which states
that "WHEREAS, on the date of assignment indicated above, for va1ue
received, Holder of the Note and Deed of Trust referenced
transferred and assigned each to Assignee (emphasis
added) {CR6:P1403) There is not a scintella of evidence that this
Assignment made Appellant the "successor-in-interest" of Fieldstone
Mortgage to anything other than the Deed of Trust, and possibly the
Adjustable Rate Note. All this Assignment shows is that Appellant
PURCHASED a Deed of Trust. To the extent Appellant relies upon the
Affidavit of Teresa Boudreaux to support its assertion that
Appellant is the "successor in interest" to Fieldstone Mortgage
Company, such reliance is misplaced as the Affidavit is ineffective
and defective for the reasons stated below in Paragraph E ..
Therefore, the trial court was correct in its Finding of Fact
Number 15. (CR7:1772)
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C. APPELLEE'S OBJECTIONS TO THE AFFIDAVIT OF TERESA
BOUDREAUX
Appellee made the following objections to the Affidavit of
Teresa Boudreaux:
1
(CR7;P1683; APP:l)
1. The affidavit references a Power of A t t o r n ~ y and does not
attach the referenced document to the affidavit.
2. The affidavit references a power of attorney which
purports to establish the relationship between HSBC Bank
USA, N.A., as Indenture Trustee of Fieldstone Mortgage
Investment Trust, Series 2004-4, and Litton Loan
Servicing, L.P., as the purported power of attorney, or
a true and correct copy thereof, has not been attached to
the Affidavit.
3. The affidavit contains the legal conclusion averred that
HSBC Bank USA, N.A., as Indenture Trustee of the
Appellee made almost identical objections to the Affidavit of
Judy Tidwell which was filed by Appellant in response to a Motion
for Summary Judgment filed by Appellee. (CR5:1191) Appellee had
one different objection to said affidavit, being that Judy Tidwell
did not aver that the alleged facts set forth in her purported
affidavit are "true and correct." An "affiant must swear or affirm
under oath that the facts stated are true." Coastal Cement Sand v.
First In-terstate Credit Alli-ance, 956 S.W.2d 562, .567 {Tex. App.
Houston [14th Dist.] 1997, pet. denied), citing Gerstacker v. Blum
Consulting Engineers, Inc., 884 S.W.2d 845, 848 (Tex. App. -Dallas
1994, writ denied). An affidavit that does not allege that the
facts set forth therein are both true and within the affiant's
~ personal knowledge, lack the necessary factual specificity.
Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) Appellee did
not, however, adopt any objections of Appellees, Jeanie Watson and
Tony Watson. Reference is made to the Affidavit of Judy Tidwell in
the event Appellant attempts to utilize her affidavit.
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Fieldstone Mortgage Investment Trust, Series 2004-4, is
the "current owner and holder of the Adjustable Rate Note
and th-e De-ed of Trust, as w-ell as th-e associated
addendums and riders referenced above."
4. The affidavit references facts that are not within the
personal knowledge of the affiant. Specifically, affiant
attempts to aver that an entity with which she is not
employed, being HSBC Bank USA, N .A., "is currently in
possession of all of the original loan documents .
"
As well, afiant attempts to aver that HSBC Bank USA,
N.A., "has not pledged, assigned, transferred, or
conveyed the Adjustable Rate Note and the Deed of Trust
"
5. The affidavit references provisions of and matters
contained in the Fieldstone Mortgage Investment Trust,
Series 2004-4. Appellee requested in Request for
Production that Appellant, and Litton Loan Servicing, LP,
produce a copy of the Fieldstone Mortgage Investment
Trust, Series 2004-4, however, Appellant and Litton Loan
Servicing, LP, both objected to the request and have
refused to produce a copy of the Trust. As well, a copy
of the referenced document is not attached as an exhibit
to the affidavit. Additionally, affiant is not an
employee of either HSBC Bank USA, N .A., either as an
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entity in and of itself, or as the alleged Indenture
Trustee of the Fieldstone Mortgage Investment Trust,
S-eries 20-04-4. Further, affiant is not an employee of
the Fieldstone Mortgage Investment Trust, Series 2004-4.
Further, affiant has not set forth facts within her
personal knowledge, much less any facts, which would
establish that she has any personal knowledge of the
terms and provisions contained on the governing document
of the Fieldstone Mortgage Investment Trust, Series 2004-
4.
6. The affidavit references that HSBC Bank USA, N .A., is the
Indentured Trustee of the Fieldstone Mortgage Investment
Trust, Series 2004-4. Appellee requested in Request for
Production that Appellant, and Litton Loan Servicing, LP,
produce a copy o the Fieldstone Mortgage Investment
Trust, Series 2004-4, however, Appellant, and Litton Loan
Servicing, LP, both objected to the request and have
refused to produce a copy of the Trust. As well, a copy
of the referenced document is not attached as an exhibit
to the affidavit.
7. The affidavit references to purported provisions of the
Fieldst-one Mortgage Investment Trust, Series 2004-4.
Appellee requested in Request for Production that
Appellant, and Litton Loan Servicing, LP, produce a copy
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8.
of the Fieldstone Mortgage Investment Trust, Series 2004-
4, however, Appellant, and Litton Loan Servicing, LP,
both obj-ected to the requ-est and have refus-ed to produce
a copy of the Trust. As well, a copy of the referenced
document is not attached as an exhibit to the affidavit.
Additionally, affiant is not an employee of either HSBC
Bank USA, N.A., either as an entity in and of itself, or
as the alleged Indenture Trustee of the Fieldstone
Mortgage Investment Trust, Series 2004-4. Further,
affiant is not an employee of the Fieldstone Mortgage
Investment Trust, Series 2004-4. Further, affiant has
not set forth facts within her personal knowledge, much
less any facts, which would establish that she has any
personal knowledge of the terms and provisions contained
on the governing document o the Fieldstone Mortgage
Investment Trust, Series 2004-4.
The affiant made the legal conclusion that "{t]he
Adjustable Rate Note and Deed of Trust, Exhibits 1 and 2,
were assigned to HSBC Bank USA, N .A., as Indenture
Trustee of the Fieldstone Mortgage Investment Trust
Series 2004-4 .
"
9. The affiant made the legal conclusion that "Pursuant to
the Deed of Trust, MERS held legal title to the interests
granted by the Borrowers in the Deed of Trust. Also,
-15-
MERS, if necessary to comply with law or custom, MERS, as
nominee for the Lender and Lender's successors and
assigns, had the right to exercise any and all of those
interests, including, but not limited to, the right to
foreclose and sell the Property; and to take any action
required by Lender including, but not limited to,
releasing and cancelling the Deed of Trus. MERS had
express authority to exercise any action required of the
Lender, including assigning the Note." Also, affiant is
not an employee of either Fieldstone Mortgage Corporation
or MERS. Further, affiant has not set forth facts within
her personal knowledge, much less any facts, which would
establish that she has any personal knowledge of the
terms and provisions contained in any document which
governed the relationship between Fieldstone Mortgage
Corporation and MERS. The only evidence before this
Court of any relationship is set forth in the Deed of
Trust.
10. The affiant made the legal conclusions that "[p]ursuant
to the Assignment of Note and Deed of Trust . . MERS
assigned the Note and Deed of Trust . MERS was
authorized to assign the Note and Deed of Trust, and
pursuant to this authorization, MERS assigned the Note
and Deed of Trust . . . as evidenced by the Assignment of
-16-
Note and Deed of Trust. " Also, affiant is not an
employee of either Fieldstone Mortgage Corporation or
MERS. Furth-er, affiant has not s-et forth facts within
her personal knowledge, much less any facts, which would
establish that she has any personal knowledge of the
terms and provisions contained in any document which
governed the relationship between Fieldstone Mortgage
Corporation and MERS. The only evidence before this
Court of any relationship is set forth in the Deed of
Trust.
11. The affiant made the legal conclusion averred that "the
full amount of the due and payable debt-after credit for
all just and lawful offsets, payments, and credits have
been made is $333,161.76. This amount includes
$176, 000 .. 00 in p.rincipal, $85,217 .. 12 in interest, and
$71,944.64 in other charges." First, there is an issue
an to whether either Appellant is a holder of the
Adjustable Rate Note. Second, affiant does not provide
any information as to what constitutes the "other
charges" and whether the charges are allowed under the
terms of either the Deed of Trust or the Adjustable Rate
Note. Third, compared to the alleged and purported
Affidavit of Judy Tidwell, for comparison only for which
Appellee did not waive any of his OBJECTIONS to said
-17-
affidavit, absolutely no interest was shown as having
accrued on the alleged debt between March 19, 2010, and
April 15, 2010. All that all-eg-edly accru-ed was $52.43 in
unknown "other charges".
12. Appellee had requested, on March 26, 2010, and again on
April 1, 2010, dates for the deposition of Teresa
Boudreaux. No dates were provided. On April 6, 2010,
Movant noticed the deposition of the corporate
representative of Litton Loan Servicing, L.P., for April
15, 2010, which deposition was quashed by Respondents.
Appellee requested the Court to take judicial notice of
the Motion to Quash Oral Depositions and Motion for
Protective Order. Appellant, in said Motion to Quash,
did not provide any alternative dates for the deposition
of the corporate representative of Litton Loan Servicing.,
L. P. Therefore, Appellee was unable to test the veracity
of the factual statements in the Affidavit of Teresa
Boudreaux, the corporate representative of Litton Loan
Servicing, L.P.
13. The affiant did not set forth the manner in which she
obtained the alleged personal knowledge she avers to in
her affidavit. All the affiant averred was that she is
the brisiness records custodian of Litton Loan Servicing,
L.P. She did not follow with any alleged facts which
-18-
show how she is alleged to have personal knowledge of the
alleged facts which are set forth in her affidavit. She
simply did not show that she was competent to aver to the
alleged facts in her affidavit.
14. Appellee incorporated by reference the objections to the
Affidavit of Teresa Bourdeaux as set forth in Appellees',
Jeanie Watson and Tony Watson's, Reply of Bill of Review
Defendants to response of Bill of Review Plaintiff's
Response to Evidentiary Objections of Bill of Review
De-fendants to Affidavit o Teresa Bourdeaux Submitted in
Support of Bill of Review Plaintiffs' Response to Plea to
the Jurisdiction. (CR7:1684, 1691)
D. APPELLANT'S RESPONSE TO THE OBJECTIONS
Interestingly
1
Appellant made no written response to the
objections of Appellee. However, when questioned by the Court as
to the objections for failure to attach documents, Appellant's
response was:
MR. DAVIS: "HSBC has not presented this Court
with a copy of the trust agreement, which establishes the
Fieldstone Mortgage Investment Trust series 2004-4. As well,
there's no competent testimony by a deposition or affidavit as
to the provision of the trust which allows HSBC to even bring
this Bill of Review.
Judge, we have filed an objection to the affidavit of
Teresa Boufreaux and as it is attached to response to our Bill
of Review.
At this point, I would like to go through our objections
at this time." (RR:P33,L11-20)
-19-
MR. REAGAN: "First, when Mr. Davis, he raised two
to produce the trust points. First is the - our refusal
agr-e-ement. . . " (RR: P39, L9-10)
MR. REAGAN: "Your Honor, I - the second point is that
I have advised both these gentlemen, I gave them a list of
documents that are available, that if they would agree to a
confidentiality agreement, I would produce these documents. To
date I've only heard from Mr. Davis. Mr. Davis said he would
agree to a confidentiality agreement ... Therefore, until we
have a confidentiality agreement, I will not produce these
documents without a Court order. These are proprietary
documents that would affect my clients."
THE COURT: "You_, re not going to - in this review, as
to whether or not you have a right to seek a Bill of Review,
you are not producing what document?
MR. REAGAN:
THE COURT:
MR. REAGAN:
THE COURT;
MR. REAGAN:
asked."
THE COURT:
"He is asking for a copy of the trust
"
"Okay -"
"- agreement."
You don't - the trust agreement isn't
before us, right?"
"No specific request for production has
"No. I'm s-aying, you have not presented
the trust agreement to show any rights you have under the
trust?"
MR. REAGAN: "They won't even give it to me until I
have a confidentiality agreement."
THE COURT: "It's your client? It's your client?"
MR. REAGAN: "Yes."
-20-
THE COURT: "Okay. The trust agreement's not in this
hearing, right?"
MR. REAGAN: "Correct."
THE COURT: "It's not before me? I can't consider
it?"
MR. REAGAN: "You don't need to consider it." (RR:
P39,L23 - P41,L6)
THE COURT: "So she's not relying on any document, any
trust agreement? I mean, any trust document, right?"
MR. REAGAN: "She may be relying on what someone told
her. But that's her personal
knowledge."
THE COURT: "No, it isn't. Not what someone told her
is not her personal knowledge."
MR REAGAN: "If she learned it and she has personal
knowledge of it, she has personal knowledge."
THE COURT: "Not if it's in a document and the
document hasn't been produced."
MR. REAGAN: "The document hasn't been asked for.''
(RR:P45,L2 - P45,L13)
MR. DAVIS:- "Judge, as well, the first page she
references a power of attorney between HSBC and Litton that is
also not produced .... "(RR:P45,L20 - L22
MR REAGAN: "Sure. As to the power of attorney,
again, it hasn't been requested. We talked about this at the
first hearing. I still haven't seen a request for production
for it. They keep saying I got to produce documents or this
hasn't been produced,. this hasn't a They haven't asked for it a
-21-
It's not my job to guess what documents these gentlemen want.
If they want them, they can request them. I can provide them
a list of documents I can produce." (RR:P46, Ll5 - L22)
It is clear that Appellant, and the affiant, did not comply
with the mandates of TEX. R. CIV. PROC. 166a(f) in that neither
attached either the trust agreement or the power of attorney which
were both specifically referenced and relied upon in the Affidavit
of Teresa Boudreaux. Therefore, those portions of her affidavit
which rely upon said documents must be stricken and this Court
should not look to the same in support of Appellant's claim that it
had standing to file the Bill of Review.
E. STATEMENTS IN THE AFF:IDAVJ:T OF TERESA BOUDREAUX WHJ:CB
WERE OBJECTED TO
The following portions of the Affidavit of Teresa Boudreaux
were objected to:
"I am a custodian of records for Litton Loan Servicing, LP
Litton Loan Servicing, LP, by and through a power of attorney,
is the authorized agent and mortgage servicer for HSBC Bank
USA, N.A., as Indenture Trustee of the Fieldstone Mortgage
Investment Trust, Series 2004-4." (CR6:Pl407)
" ... I am authorized to make this affidavit on behalf of .
HSBC Bank USA, N .A., as Indenture Trustee of the
Fieldstone Mortgage Investment Trust, Series 2004-4."
CR6:Pl408)
As the affiant, Teresa Boudreaux, relies upon a power of attorney,
a document not. attached t.o her affidavit,. the relationship between
Appellant and Litton Loan Servicing, LP, was not established by the
affiant. As the affiant is an employee of Litton Loan Servicing,
LP, her statements, not only in the paragraph set forth above, but
-22-
also in the whole of her affidavit, are impermissible hearsay and
conclusions. As well, the five (5) documents listed as business
r-ecords of Litton Loan Servicing, LP, are documents that were not
created by it; rather they are documents created by a third-party
and are, therefore, documents not admissible under the business
records exception to the hearsay rule. Skillern & Sons, Inc. v.
Rosen, 359 S.W.2d 298, 305 (Tex. 1962} {"Some employee or
representative who either made the record or transmitted the
information to another to record must have and personal knowledge
of the act, event or condition in order for such records to be
admissible under the business records exception to the hearsay
rule.") Therefore, as well as the averments being impermissible
hearsay, the documents referenced and attached as Exhibits 1-5 are
hearsay as they are not proper business records of Litton Loan
Servicing, LP. Furth-er, even though the affiant averred that she
was a business records custodian, such does not effect her with
personal knowledge of the facts set forth in the documents attached
to the affidavit. March v. Victoria Lloyds Insurance Co., 773
S.W.2d 785, 789 (Tex. Civ. App. - Fort Worth 1990, writ denied)
"HSBC Bank USA, N.A., as Indenture Trustee of the Fieldstone
Mortgage Investment Trust, Series 2004-4, is the current owner
and holder of the Adjustable Rate Note and the Deed of Trust,
as well as the associated addendums and riders referenced
above. The Bank is currently in possession of all the
original loan documents referenced above, true and correct
copies of which are attached hereto as Exhibits 1 - 5. HSBC
Bank USA, N.A.
1
as Indenture Trustee of the Fieldstone
Mortgage Investment Trust, Series 2004-4 has not pledged,
assigned, transferred, or conveyed the Adjustable Rate Note
-23-
and the Deed of Trust referenced above, which are attached
hereto as Exhibits 1 and 2." (CR6:P1408)
Not only are these averments conclusory, such as Appellant the
current owner and holder of the Adjustable Rate Note and the Deed
of Trust, as well as the associated addendums and riders referenced
above", but also, the averments are outside of the affiant's
personal knowledge. The affiant is an employee of Litton Loan
Servicing, LP, not Appellant, HSBC Bank USA, N.A., as Indenture
Trustee of the Fieldstone Mortgage Investment Trust, Series 2004-4,
yet, she seeks to aver to alleged facts that only an employee of
Appellant, HSBC Bank USA, N .A., as Indenture Trustee of the
Fieldstone Mortgage Investment Trust, Series 2004-4, would know,
those alleged facts being that Appellant "is currently in
possession of all of the original loan documents ... " and that
Appellant "has not pledged, assigned, transferred, or conveyed the
Adjustable Rate Note and the Deed of Trust . . . "
"The Fieldstone Mortgage Investment Trust, Series 2004-4
('Trust'), was created in 2004, ... One of these mortgage
loans was the mortgage loan at issue in this lawsuit.
Specifically the Adjustable Rate Note dated July 29, 2004, and
attached hereto as Exhibit 1." (CR6:P1408)
As set forth above, a copy of the trust agreement was not attached
to the affidavit. Yet, the affiant avers to facts she allegedly
learned from the trust agreement. Such is impermissible.
Indenture Trustee for the Trust is HSBC Bank USA,
N.A. The Bank is authorized to institute
proceedings to collect the amounts due or foreclose on
collateral pledged to secure the Notes, exercise remedies as
a secured partyt, the assets of the Trust Estate pledged
-24-
to secure the Notes, or elect to maintain possession of such
assets and continue to apply collections on such assets as if
there had been no declaration of acceleration." (CR6:P1408)
As set forth above, a copy of the trust agreement was not attached
to the affidavit. Yet, the affiant avers to facts she allegedly
learned from the trust agreement and the alleged rights, duties,
and obligations of Appellant set forth in such document. Such is
impermissible.
"The Adjustable Rate Note and Deed of Trust, Exhibits 1 and 2,
were assigned to HSBC Bank USA, N.A., as Indenture Trustee of
the Fieldstone Mortgage Investment Trust, Series 2004-4,
pursuant to an Assignment of Note and Deed of Trust with an
effective date of June 30, 2007." (CR6:P1408}
Such averment is a conclusion. As well, the affiant relies upon
and references a document not attached to her affidavit.
"Pursuant to the Deed of Trust, Mortgage Electronic
Registration Systems, Inc. , ( 'MERS' ) was the nominee for
Fieldstone Mortgage Company ans is also a beneficiary of the
Deed of Trust. Pursuant to the Deed of Trust, MERS held legal
title to the interests granted by the Borrowers in the Deed of
Trust. Also, MERS, if necessary to comply with the law or
custom, MERS, as nominee for the Lender and Lender's
successors and assigns, had the right to exercise any and all
of those interests, including, but not limited to, the right
to foreclose and sell the Property; and to take any action
required by Lender including, but not limited to, releasing
and cancelling the Deed of Trust. MERS had express authority
to exercise any action required of the Lender, including
assigning the Nate.u (CR6:P1408-9)
"Pursuant to the Assignment of Note and Deed of Trust with an
effective date of June 30, 2007, the MERS assigned the Note
and Deed of Trust, attached hereto as Exhibits 1 and 2, as
Nominee for Lender and Lenders Successors and Assigns. MERS
was authorized to assign the Note and Deed of Trust, and
pursuant to this authorization, MERS assigned the Note and
Deed of Trust, as Nominee for Lender and Lenders Successors
and Assigns, as evidenced by the Assignment of Note and Deed
of Trust." (CR6:Pl409)
-25-
These averments by the affiant are legal conclusions, which the
affiant is not qualified to make. Also, affiant is not an employee
of either Fieldstone Mortgage Corporation or MERS. Further,
affiant has not set forth facts within her personal knowledge, much
less any facts, which would establish that she has any personal
knowledge of the terms and provisions contained in any document
which governed the relationship between Fieldstone Mortgage
Corporation and MERS.
F. THE TRIAL COURT GRANTED ADDITIONAL TIME TO FILE
OBJECTIONS AND TO RESPONDS TO OBJECTIONS
The trial court granted all Appellees the opportunity to file
any additional objections they deemed necessary to the Affidavit of
Teresa Boudreaux, and it granted Appellant the opportunity to file
any responses it deemed necessary to the objections. {RR:P48,L20-
P49,L20) In fact, the trial court, after a response by Appellant,
admonished Appellant that "[t]hat' s kind of an important deal.
Listen, I know it's technical, but I want you a little worried. I
didn't think you ought to be for a while, but I think you need to
be a little worried." (RR: P49,Ll3-20) However, while Appellant
filed a Supplemental Response to Bill of Review Defendants and
Intervenor's Pleas to the Jurisdiction, (CR7:Pl685), Appellant did
not address any of the objections presented by either Appellee, or
Appellees, Tony Watson and wife, Jeanie Watson. The only logical
conclusion is that Appellant must agree with the merits of the
objections of Appellees.
-26-
Therefore, while the trial court was correct in its ruling to
grant the Appellees' respective Pleas to the Jurisdiction,
dismissing the Bill of Review, and entering its Order Denying Bill
of Review. As well, while the trial did not rule on the objections
of Appellee to the Affidavit of Teresa Boudreaux, this Court should
grant the objections, disregard the Affidavit of Teresa Bourdreaux,
and affirm the trial court's granting of the Pleas to the
Jurisdiction and dismissal of the Bill of Review, and the entry of
its Order Denying Bill of Review.
PRAYER
HBEREFORE, PREMISES CONSIDERED, Appellee, MATTHEW G. AIKEN,
request that the Court affirm the trial court's granting of his
Plea to the Jurisdiction, dismissal of the Bill of Review, and
entry of the Order Denying Bill of Review, sustain his objections
to the Affidavit of Teresa Boudreaux, and grant him such other and
further relief to which he may be entitled on law and equity.
RESPECTFULLY SUBMITTED,
JEFFREY S. DAVIS
Attorney at Law
1422 Berry Drive
Cleburne, Texas 76033
817/240-9234
FAX # 817/423-7348
FOR APPELLEE,
MATTHEW G. AIKEN
-27-
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the above
and foregoing document was forwarded to all counsel of record via
certified mail, return receipt requested, on the 14th day of March,
2011, pursuant to the Texas Rules of Appellate Procedure and the
Texas Rules of Civil Procedure.
-28-
CASE NO. 05-10-00676-CV
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS
AT DALLAS
**********************************************
HSBC BANK USA, N .A., as Indenture
Trustee of the Fieldstone Mortgage
Investment Trust, Series 2004-4
Appellant
v.
JEANIE WATSON, TONY WATSON,_ and
MATTHEW G. AIKEN,
Appellees.
**********************************************
APPENDIX TO BRIEF OF APPELLEE,
MATTHEW G. AIKEN
**********************************************
-29-
Intervenor's Reply to Plaintiff's Response to
Plea to the Jurisdiction . . . . . . . .
-30-
1
CAUSE NO. ?;3
HSBC BANK USA, N.A., as Indenture Trustee. IN COURT
of the Fieldstone Mortgage Investment Trust,
Series 20044, and
LITION LOAN SERVICING, L.P. ,
MATTHEW G. AIKEN

Plaintiffs

V. 192ND jUDICIAL DISTRICT

TONY WATSON and wife, jEANIE WATSON,





MATTHEW G. AIKEN,

Intervenor DALLAS COUNTY, TEXAS
INTERVENOR'S REPLY TO PLAINTIFFS RESPONSE TO
PLEA TO 1HE JURISDICTION
NOW COMES Intervenor, MATIHEW G. AIKEN, "Movant" herein, who files this his
Reply to Plaintiffs' Response to Plea to the Jurisdiction and shows the Court as follows:
I.
Movant OBJECTS to all summary judgment evidence proffered by Non ... Movants that
purports to contravene the deemed admissions of each Non ... Movant, as those deemed admissions
are set forth in Inttervenor's Motion for Summary Judgment.
IL
A. Movant OBJECTS to the Affidavit ofT eresa Boudreaux in that the same references
a Power of Attorney and does not attach the referenced document to the affidavit.
B. Movant OBJECTS to the Affidavit ofTeresa Boudreaux in that the same references
a power of attorney which purports to establish the relationship between HSBC Bank USA, N.A.,
as Indenture Trustee of Fieldstone Mortgage Investment Trust, Series 20044, and Litton Loan
Servicing, LP., as the purported power of attorney, or a true and correct copy thereof, has not been
attached to the Affidavit.
Page 1 of 6
C. Movant OBJECTS to the Affidavit of Teresa Boudreaux, specifically, the legal
conclusion averred that HSBC Bank USA, N.A . ., as Indenture Trustee of the Fieldstone Mortgage
Investment Trust, Series 20044, is the "current owner and holder of the Adjustable Rate Note and
the Deed ofT rust, as well as the associated addendums and riders referenced above . .,
D. Movant OBJECTS to the Affidavit ofTeresa Boudreaux in that the same references
facts that are not within the personal knowledge of the affiant. Specifically, affiant attempts to aver
that an entity with which she is not employed, being HSBC Bank USA, NA, "is currendy in
possession of all of the original loan documents ... " As well, affiant attempts to aver that HSBC
Bank USA, N.A, "has not pledged, assigned, transferred, or conveyed the Adjustable Rate Note and
the Deed ofT rust .. "
E. Movant OBJECTS to the Affidavit ofTeresa Boudreaux, specifically, the reference
to-provisions of and matters-contained in the Fieldstone Mortgage Invesnnent Trust,_ Series 20044.
Movant has requested in Request for Production tbatNon ... Movantsproduceacopyofthe Fieldstone
Mortgage InvestmentT rust, Series20044, however, Non-Movantsbothobjected to the request and
have refused to produce a copy of the Trost. As weH, a copy of the referenced document is not
attached as an exhibit to the affidavit. Additionally, affiant is not an employee of either HSBC Bank
USA, N.A., either as an entity in and of itself, or as the alleged Indenture Trustee of the Fieldstone
Mortgage Investment Trust, Series 2004-4. Further, affiant is not an employee of the Fieldstone
Mortgage Investment Trust, Series 2004.-4. Further, affiant has not set forth facts within her
personal knowledge, much less any facts, which would establish ~ t she has any personal knowledge
of the terms and provisions contained on the governing document of the Fieldstone Mortgage
Investment Trust, Series 2()()4...4.
F. Movant OBJECTS to the Affidavit of Teresa Boudreaux, specifically, the reference
that HSBC Bank USA, N.A, is the Indentured Trustee of the Fieldstone Mortgage Investment
Trust, Series 2004-4. Movant has requested in Request for Production that Non .. Movants produce
a copy of the Fieldstone Mortgage Investment Trust, Series 2004..-4, however, Non.-Movants both
Page2of 6
objected to the request and have refused to produce a copy of the Trust. As well, a copy of the
referenced document is not attached as an exhibit to the affidavit.
G. Movant OBJECTS to the Affidavit ofTeresa Boudreaux, specifi.caliy, the reference
to purported provisions of the Fieldstone Mortgage Investtnent Trust, Series 2004.-4. Movant has
requested in Request for Production that Non .. Movants produce a copy of the Fieldstone Mortgage
Investment Trust, Series 2004-4, however, Non .. Movants both objected to the request and have
refused to produce a copy of the Trust. As well, a copy of the referenced document is not attached
as an exhibit to the affidavit. Additionally, affiant is not an employee of either HSBC Bank USA,
N.A, either as an entity in and of itself, or as the alleged Indenture Trustee of the Fieldstone
Mortgage Investment Trust, Series 20044. Further, affiant is not an employee of the Fieldstone
Mortgage Investment Trust, Series 2004-4. Further, affiant has not set forth facts within her
personal knowledge, much less any facts,- which would establish that she has any personal knowledge
of the terms and provisiom contained on the governing document of the Fieldstone Mortgage
Investment Trust, Series 2()(..-4.
H. Movant OB)ECfS to the Affidavit of Teresa Boudreaux, specifically, the legal
conclusion averred that n-[t}he Adjustable Rate Note and Deed ofT rust, Exhibits 1 and 2, were
assigned to HSBC Bank USA, N.A, as Indenture Trustee of the Fieldstone Mortgage Investment
Trust Series 2004--4 ... "
I. Movant OBJECTS to the Affidavit of Teresa Boudreaux, specifi.cally, the legal
conclusion averred that "Pursuant to the Deed ofT rust, MERS held legal tide to the interests
granted by the Borrowers in the Deed of Trust. Also, MERS, if necessary to comply with law or
custom, MERS, as nominee for the Lender and Lender's successors and assigns, had the right to
exercise any and all of those interests, including, but not limited to, the right to foreclose and sell the
Property; and to take any action required by Lender including, but not limited to, releasing and
cancelling the Deed ofT rus. MERS had express authority to exercise any action required of the
Lender, including assigning the Note. Also, affiantisnotanem.ployeeofeither Fieldstone Mortgage
Page3of 6
Corporation or MERS. Further, affiant has not set forth facts within her personal knowledge, much
less any facts, which would establish that she has any personal knowledge of the tenns and provisions
contained in any document which governed the relationship between Fieldstone Mortgage
Corporation and MERS. The only evidence before this Court of any relationship is set forth in the
DeedofTrust.
J. Movant OBJECTS to the Affidavit of Teresa Boudreaux, specifically, the legal
conclusions that "[p]msuant to the Assignment of Note and Deed ofT rust ... MERS assigned the
Note and Deed of Trust .... MERS was authorized to assign the Note and Deed of Trust, and
pursuant to this authorization, MERS assigned the Note and Deed ofT rust ... as evidenced by the
Assignment of ~ o t e and Deed of Trust." Also, affiant is not an employee of either Fieldstone
Mortgage Corporation or MERS. Further, affiant has not set forth facts within her personal
knowledge, much less any facts, which would establish that she has any personal knowledge of the
terms and provisions contained in any document which governed the reiati.onship between
Fteldstone Mortgage Corporation and MERS. The only evidence before this Court of any
relationship is set'forth in the Deed ofTrost.
K. Movant OBJECTS to the Affidavit of Teresa Boudreaux, specifically, the legal
conclusion averred that "the full amount of the due and payable debt .. after credit for all just and
lawful offsets, payments, and credits have been made .. is $$333,161.76. This amount includes
$176,000.00 in principal, $85,217.12 in interest, and $71,944.64 in other charges. n First, there is
an issue an to whether either Non ... Movant is a holder of the Adjustable Rate Note. Second, affiant
does not provide any information as to what constitutes the" other charges" and whether the charges
are allowed under the terms of either the Deed of Trust or the Adjustable Rate Note. Third,
compareQ. to the alleged and purported Affidavit of Judy Tidwell, for comparison only for which
Movant does not waive any ofhis OBJECTIONS to said affidavit, absolutely no interest has accrued
on the alleged debt between March 19, 2010, and Apri115, 2010. All that allegedly accrued was
$52.43 in unknown "other charges".
Page4of 6
L Movant OBJECTS to the Affidavit of Teresa Boudreaux, in general, to the extent
it seeks to introduce summary judgment evidence in contravention of the deemed admissions, as
shown in Intervenor's Motion for Summary Judgment.
M. Movant OB)Ecrs to the Affidavit ofTeresa Boudreaux, in general, as Movant had
requested, on March 26, 2010, and again on April 1, 2010, dates for the deposition of Teresa
Boudreaux. No dates were provided. On April 6, 2010, Movant noticed the deposition of the
corporate representative of Litton loan Servicing, LP., for Aprill5, 2010, which deposition was
quashed by Respondents.. Movant requests the Court to take judicial notice of the Motion to Quash
Oral Depositions and Motion for Protective Order. Respondent, in said Motion to Quash, did not
provide any alternative dates for the deposition of the corporate representative of Litton Loan
Servicing, LP. Therefore, Movant is unable to test the veracity of the factual statements in the
Affidavit ofT eresa Boudreaux, the corporate representative of Litton Loan Servicing, LP.
m.
Movant further OBJECTS to each document attached to Plaintiffs' Response that is not a
certified copy of a document filed in the Johnson County Oerk's Office which has the crimped seal
on each page.
N.
Movant further OBJECTS to Plaintiffs use of an excerpt of the oral deposition of Constable
Adam Crawford under the rule of optional completeness.
WHEREFORE, PREMISES CONSIDERED, Movant requests that, upon notice and
hearing,. this Court this court dismiss this cause of action for want of subject matter jurisdiction and
grant him such other and further relief to which he may be entided in law and in equity.
PageS of 6
Respectfully submitted,
JEFFREYS. DAVIS
Attorney at Law
1422 Berry Drive
Cleburne, Texas 76033
817/602..-7999
. FAX817/423.-7348
CERTIFICATE OF SERVICE
I certify that on April22,. 2010, a true and correct copy of Intervenor's Reply to Plaintiffs
Response Plea to the Jurisdiction was served in accordance with the Texas Rules of Civil Procedure
on the following:
Steven A Leyh
Sean Reagan
Leyh & Payne, LLP
9545 Katy Freeway, Suite 200
Houston, Texas 77024
Jacob M. Gold
Gold Law Firm
The 701 Building
701 East Fifteenth Street, Suite 206
P l a n ~ Texas 75074 ... 5711
HAND ... DELNERED
HAND ... DEUVERED
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