Kb Realtron Management v. Stephanie Deleon

ACCEPTED 13-13-00411-CV FILED THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS IN THE 13TH COURT OF APPEALS 4/21/2015 10:23:31 PM CORPUS CHRISTI DORIAN RAMIREZ CLERK 4/21/15 DORIAN E. RAMIREZ, CLERK 13-13-00411-CV BY DTello IN THE COURT OF APPEALS OF TEXAS RECEIVED IN THIRTEENTH DISTRICT 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS CORPUS CHRISTI 4/21/2015 10:23:31 PM DORIAN E. RAMIREZ Clerk KBREALTRON MANAGEMENT Appellant v. STEPHANIE DELEON Appellee On Appeal from the County Court at Law # 1 Travis County, Texas Trial Court Cause No. C-1-V-12-002167 APPELLANT'S BRIEF Kevin Bierwirth 13276 Research Blvd. Ste. 204 Austin, Texas 78750 (512) 825-0331 IDENTITY OF THE PARTIES Appellant Kevin Bierwirth 13276 Research Blvd. Ste. 204 Austin, Texas 78750 Appellee Stephanie DeLeon 4108 Kilgore Lane Austin, Texas 78727 Attorney for Appellee in JP Court and ancillary proceedings Matthew J. Wagner Hall Attorneys, P.C. 701 Brazos, Suite 500 Austin, Texas 78701 11 TABLE OF CONTENTS Identity of Parties and COllllsel.. .......................................................... .ii Table of Contents .... .. ... ... .... ..... ... ...... ... .... ..... ... .... ..... ...... ....... ...... .. ..iii Table of Authorities ........................................................................... v Statement ofJurisdiction ................ .. ......... .. .. ...... .. .............................. 1 Statement of the Case ............ ... ... ...... .. . ......... ... ...... .. . ............... .. . ....... 1 Issues Presented ............................................................................... 1 ISSUE 1 DID APPELLANT PROVE THAT HE WAS ENTITLED TO THE RELIEF REQUESTED? ISSUE 2 DID THE PRESIDING JUDGE VIOLATE CANONS OF THE TEXAS CODE OF JUDICIAL CONDUCT ISSUE 3 WAS APPELLANT DENIED DUE PROCESS BY A JUDGE WHO WAS BIASED AND PREJUDICED Statement of Facts ......... ......... ............... ......... ......... ......... ............... 2 Summary of Argument. ..... ... .... .. ... .. ... .... ... ... .... .. ... .. ... ....... .... .. .... .... .5 Arguments and Authorities ................................................................ 6 Conclusion ... ... .. ....... .. . ......... .. ................... .. .......... .... ..... .. ..... .. ..... 16 Prayer. .. .. . ...... ... ... ........ .. .. ... .. .. ...... ... ........ .. .. ........ .. .. ..... .. .. .......... 16 Certificate of Service ......... .. .......... .. . ......... .. .......... .. . ......... .. ..... .. .... 17 Certificate of Compliance ... .. ... .... ... ... .. .. .. ... .. ... .... ... ... ...... .. ... .... ... ... .17 111 Appendix IV TABLE OF AUTHORITIES Cases In re Thoma, 873 S.W.2d 477, (Tex.I994) ... .. . ... .... .. ... ... .. ...... .... ..... ... ... 15 United States v.

Bray, 546 F.2d 851 (lOth Cir. 1976) ................................ 14 United States v. Haywood, 411 F.2d 555 (5 th Cir. 1969) .... . , ....... .. ..... .... .... 14 United States v. Lanham, 416 F.2d 1140 (56 th Cir. 1969) ........ , ... .. .. ... .. .. ... 14 Vaughn v. State, 3 Tenn.Crim.App. 54,456 S.W.2d 879, 883 ...................... 15 Statutes Texas Civil Practice & Remedies Code §51.012 ......... ... ...... ... ...... ... ...... .. 1 Texas Local Government Code §I92.001.. ....... .. .......... .... .. .. ....... .. . ....... .1 Constitution Texas Constitution, Art. 1, Sec. 13 ......... .. .......... .. . ......... .. .............. .. . .15 Texas Constitution, Art. 1, Sec. 19 ..................................................... 15 Texas Constitution, Art. 5, Sec. 6 ............. .. ................... .. .. .. ... .. .. .......... 1 Authorities Texas Code ofJudiciaI Conduct, Canon 1 and Canon 2 ........... , ... .... .... ... .... 6 v STATEMENT OF JURISDICTION This Court has jurisdiction of the appeal because Appellant appeals a final Judgment from the Travis County Court at Law #1, Travis County, Texas.

Texas Civil Practice & Remedies Code §5l.0l2, Texas Local Government Code §192.00l, and Texas Constitution, Art. 5, Sec. 6. This Court has jurisdiction concerning appeal of forcible detainer proceedings, Texas Property Code, Chapter 5l. STATEMENT OF THE CASE This is an appeal of a Motion for Possession of Property and Unpaid Rent from County Court which was preceded by an action for forcible detainer from the justice court. The trial occurred on February 2, 2012 and judgment was rendered on February 2,2012 and timely appealed. ISSUES PRESENTED ISSUE 1 DID APPELLANT PROVE THAT HE WAS ENTITLED TO THE RELIEF REQUESTED? ISSUE 2 DID THE PRESIDING JUDGE VIOLATE CANONS OF THE TEXAS CODE OF JUDICIAL CONDUCT ISSUE 3 WAS APPELLANT DENIED DUE PROCESS BY A JUDGE WHO WAS BIASED AND PREJUDICED 1 STATEMENT OF FACTS Kevin Bierwirth d/b/a! KBRealtron Management, (hereinafter Appellant) is a man who, after suffering an economic downturn, studied and became very aware of the rampant fraud in mortgage foreclosures and, as a result, has availed himself of his due process rights in fighting mortgage fraud in his own cases. As a result of his actions in the courts against unlawful acts, such a robosigning, incomplete chain of title, etc., attorneys for mortgage companies have libeled and slandered his name.

These very same bar card members have access to and relationships with the bar card carrying attorneys who have attained the rank of judge. There is no way that Appellant can successfully staunch the rumor campaign which takes place behind his back. It is however, a fact that it is practiced and it is a fact that the rumors have an effect on the opinions of the judges. Appellant believes that the Court will see the expression of that prejudice in his appeal.

Appellant has, for many years, had a d/b/a of KBRealtron Management. In this capacity, Appellant manages rental properties for landlords and sometimes for his own properties. It was in the latter capacity that he leased a property to Appellee. 2 Before Appellee signed the lease, (CR p.146-159, RR Vol. 2, Plaintiff's Exhibit 1, RR Vol. 3), Appellee was fully informed that the property had been the subject of a foreclosure, which was on appeal, and that should Appellant lose possession, she would have to vacate the premises on short notice which would automatically facilitate the return of her deposit. Appellee, after having the benefit of full disclosure, nonetheless elected to lease the premises.

Appellant inadvertently mislaid the $1200 certified check for the deposit, notified the Appellee and she cancelled the check. These were to be the only funds Appellant was to receive for the duration oftime Appellee occupied the premises. Appellee refused to make payments pursuant to the lease, and after notice to Appellee, Appellant filed for forcible detainer. Appellee hired an attorney, Matthew J.

Wagner, to defend her position at the forcible detainer case at the Justice level. It is clear from Wagner's pleadings, (CR page 173-181), that he had no llllderstanding of possessory interest in real property. The law is clear, there are two issues in real property, one the right to title and, two, the right of possession. Appellant had never been removed from possession, and maintained the legal right to lease the property.

Mr. Wagner's argument prevailed at the JP level and the case was appealed to county court, for a trial de novo. 3 Mr. Wagner was told on two separate occasions by district judges in a concurrent case that he was mistaken as to the possession issue. The judges told Mr.

Wagner that as long as Appellant maintained his possessory interest, he could rent, lease, let sit idle, or anything else he chose to do with the property. Mr. Wagner apparently finally got the message and withdrew as Appellee's counsel on August 15,2012. (CR page 311-313) Appellee resided in the property from December 17, 2011, (CR page 267 line 20), to sometime in April of 2012. Appellee executed a lease on the property on November 23, 20ll. eRR Vol. 3 page 14) Appellee acknowledged that before signing the lease she was informed that the house was in a foreclosure process. (CR page 270, line 19-25) Appellee testified that she was informed of the legal status of the property before she signed the lease.

Appellee agreed to all the conditions and did, in fact, sign the lease. Appellee lived in the property from December 17, 2011 to April 1, 2012 and did not pay any consideration whatsoever towards the lease commitment. Appellant is due and owing the judgment pled for at the county court. 4 SUMMARY OF ARGUMENT Appellant filed a forcible detainer suit against Appellee. Appellant had a signed lease and Appellee breached the contract.

Appellee refused to pay and refused to leave. Appellant had evidence of the lease, and Appellee testified that she had not paid Appellant any of the monies prescribed in the lease. Appellant filed the original petition and appealed to a de novo court, having full faith the legal system that would find that Appellee had breached the contract, and as result, would be ordered to pay. Appellant did not believe he would be denied his rights and remedy, as the case was so clear cut.

Instead, Appellant was treated with contempt, disdain and an outright show of hatred on the part of the appellate judge, J. David Phillips. Judge Phillips called Appellant a liar and a thief in open court, although there is no evidence in the record that Appellant had lied or stolen from anyone, and, as a consequence of his personal prejudice, Judge Phillips denied him relief. Instead, Judge Phillips made it clear that Appellee could breach the contract and not be held liable because she had leased a property from a man that Judge Phillips personally reviled.

There is not and should not be a place in Texas jurisprudence where this is allowed to transpire. 5 ARGUMENTS AND AUTHORITIES ISSUE 1 DID APPELLANT PROVE THAT HE WAS ENTITLED TO THE RELIEF REQUESTED? At trial, Appellant provided evidence that Appellee had signed a lease, Appellee had occupied the property for close to four months and Appellee had paid no consideration whatsoever, an obvious breach of the contract. Appellant provided the Court with the amount due and owmg on the contract. Appellant proved to the Court that he was entitled to the relief requested. ISSUE 2 DID THE PRESIDING JUDGE VIOLATE CANONS OF THE TEXAS CODE OF JUDICIAL CONDUCT Canon l: An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintain, and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary is preserved. The provisions of this Code are to be construed and applied to further that objective.

Canon 2: Avoiding Impropriety and the Appearance of Impropriety in All of the Judge's Activities. A. A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality ofthe judiciary. It is evident from the transcript of this trial that Judge J. David Phillips held absolute enmity and contempt for Appellant from the beginning to the end of the hearing. 6 It was further obvious that because of his personal disdain for Appellant, Judge Phillips, in order to maintain the integrity of the Court, should have recused himself. Instead, Judge Phillips used the Court to vilify, embarrass and further torture Appellant.

Appellant asserts the rationale behind Judge Phillips enmity was based on circulating rumors and previous litigation. In the transcript of the case, Appellant is testifying as to the attempts to induce Appellee to pay her deposit and rent, and states, at RR VoL 2, beginning on page 6, and continuing through page 7:, "According to my bank, she was missing numbers or she didn't do it properly or whatever, and my bank felt like she was doing it purposely. THE COURT: Your bank felt like it was purposely? MR. BIERWIRTH: I have a letterTHE COURT: If I go kick your bank, is it going to say ouch? MR. BIERWIRTH: I'm sure they will. I have a letter here saying - that I will put as evidence. And that was just for the deposit only. THE COURT: So where does it say your bank feels like it was being done purposely? MR. BIERWIRTH: Well, I thought it was in that letter. THE COURT: The truth, please. The truth. MR. BIERWIRTH: The credit transaction amount - okay. 7 THE COURT: Not there. MR. BIERWIRTH: My mistake.

They just said it was invalid account numbers, HCRR transaction code, which I don't know what it means. Unless it was not getting through electronically. THE COURT: Right. Although it was discussed and exhibited in the hearing, the letter was not entered into evidence in the court because Appellant felt badgered and forgot to do so. The transcript further reflects the acerbic attitude and demeanor ofthe judge: In RR Vol. 2 page 8: THE COURT: Will you just tell me the story why she owes you money, please? MR. BIERWIRTH: For nonpayment of rents. THE COURT: How much? How much rent did she not pay? MR. BIERWIRTH: From ... THE COURT: It's very entertaining to have to drag everything out of you, but it's a waste oftime. (At that point, Appellant knew it was pointless to go on, obviously Judge Phillips intended to rule against him.) MR. BIERWIRTH: I'm sorry.

From December 16th to - it looks like to 41-2012. 8 THE COURT: What happened on 4-l-2012? MR. BIERWIRTH: 4-1-2012, she - actually let me - I have some notes that I can track. She moved out without notice to me - without written notice, and I believe that was sometime a little after April. But when I discovered she moved out in April, we went in and cleaned up the property and had it painted. THE COURT: So you're only asking for rent April 1S\ which is when she vacated? MR. BIERWIRTH: From December to April 11th, yes sir. And I don't know if we can - THE COURT: Do you have a copy ofthe lease? MR. BIERWIRTH: Yes, sir, I do. THE COURT: Do you want to put it into evidence? MR. BIERWIRTH: Yes, sir.

In RR Vol.2, page 18, lines 1-3, the judge establishes that Appellee owes at least $2435. RR. Vol. 2, page 22: Bierwirth questioning DeLeon: Q. (Bierwirth): And that is a legal binding contract. You're aware of that, correct? A. (DeLeon: I'm not aware, no. 9 Q. Didn't you state in Ms.

Triana's court that it was, in fact, a legalyou understood it was a legal binding contract? A. I understand that leases are legal binding contracts. MR. BIERWIRTH: Nonresponsive, Your Honor. THE COURT: Would you let her answer itMR. BIERWIRTH: She's not answering it. THE COURT: --before you start talking? She said she understands that leases are legal binding contracts. MR. BIERWIRTH: Okay. THE COURT: You're trying to fool me or what? MR. BIERWIRTH: No, sir, I'm just trying toTHE COURT: I know what her answer is. Her answer is, she thought it was a legal contract when she signed it. RR Vol. 2, page 23 lines 8-13: Q. Have you paid any funds, any money? A. At this time no funds have been actually paid.

Only attempted. Q. How long did you stay at the property? A. From December 17th , 2011, through March - I'm sorry, April 1'\ 2012. 10 Q. Okay.

Isn't it true that you filed a motion for summary judgment and the judge had ruled that I did have a right to the property and I did have a right to collect the monies for the property, and whether it was foreclosed or not, as long as I had possession ofthe property? A. The judge - there were some ruling, yes. I'm not that familiar. I have to reread all the documents. RR Vol. 2, page 24, line 15: THE COURT: Any other evidence for your side, Mr. Bierwirth? MR. BIERWIRTH; Well, I'd like to put in that order here (the summary judgment order) ---actually, I believe here it is. Put in the order denying the summary judgment. THE COURT: Orders denying motion for summary judgment don't say anything other than the motion is denied. MR. BIERWIRTH: Okay.

Well, I have the summary judgment as well if you would like to read it if it interests you. THE COURT: Denied. It doesn't mean the judge agreed with you. Just some fault in the motion. MR. BIERWIRTH: Yes, sir. THE COURT: All right. Anything else? MS . DELEON: No, Your Honor. 11 THE COURT: Okay. I am reminded of an old Woody Guthrie song called “Pretty Boy Floyd”, by golly.

Pretty Boy Floyd was kind of a hero in Oklahoma because he robbed banks, and banks were kind of mean to people at that time. Part of the song says, “As through this world you travel, you see some funny men. Some will rob you with a six-gun and some with a fountain pen.” Ain't that the truth. (Although the record does not reflect this, Judge Phillips actually played the Woody Guthrie song in the court.)

And you're one of them, Mr. Bierwirth. How dare you rent something to somebody when it's been foreclosed on and you've already given a deed to the bank? How dare you? MR. BIERWIRTH: I didn't. They have not - I still have possession of the property, and they have not tried --. THE COURT: You don't have posseSSIOn of the property.

Judge Cooper wrote an order that says this order will act as writ of possession for the property for the bank and that bank has now transferred it to somebody else, to the FDIC or Fannie Mayor somebody. (Judge Phillips is speaking of a summary judgment which had occurred in district court early in the case and was not in evidence in the Court at the time. Obviously, Judge Phillips had perused other records and fed his flames of 12 prejudice by taking into account matters which were not before him for adjudication.) MR. BIERWIRTH: No, sir. THE COURT: And you pretend that you have the right to possession of the property? MR. BIERWIRTH: I do have a right to possession of the property. THE COURT: Because it's been foreclosed on and transferred to two other banks and your right to possession is? MR. BIERWIRTH: It hasn't been transferred, Your Honor. And I have - THE COURT: Well, according to the deed records it has. MR. BIERWIRTH: Your Honor, I have - I have a book like this. And when Ms.

DeLeon rented the property, the bank was in litigation, as I told her before she moved in. And I also told her that they haven't had gotten possession, nor did they file for possession or anything. THE COURT: I think you're a liar and a thief. Just to get that off my chest. I think you're a liar and a thief. And she gets judgment in this case, and I assess all cost against you.

You can be excused. MS . DELEON: Thank you, Your Honor. THE COURT: I'll write you up an order if you want to stay. MS . DELEON: I would very much appreciate that. 13 THE COURT: There's one for each of today's contestants. There's a judgment for you that says plaintiff take nothing and defendant have her costs. The Motion before the Court was a Motion for Possession of Property and Unpaid Rent.. CR page 320-322 . Appellant presented a bona fide lease.

Appellee testified that she had lived on the property the subject of the lease, that she had full disclosure of the foreclosure before she moved in and that she hadn't paid a cent the entire time she occupied the property. It is clear that Appellee breached the contract. That was the matter before the court. “The comments of the trial judge, which tainted appellant's presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection.” United States v.

Bray, 546 F.2d 851 (10 th Cir. 1976); United States v. Lanham, 416 F.2d 1140 (56 th Cir. 1969)(actions of trial judge who improperly injected himself into role of prosecutor during trial destroyed neutrality and impartiality of trial atmosphere, defendant's credibility, and defendant's presumption of innocence, and constituted plain error); United States v. Haywood, 411 F.2d 555 (5 th Cir. 1969). 14 Texas Constitution, Art. 1, Sec. 13. Remedy by due course of law.

All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law. Texas Constitution, Art. 1, Sec. 19. No citizen ofthis State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law ofthe land. It is an adage as old as time that a participant in a judicial hearing is entitled to a fair and independent law giver, whether it be a judge or a jury. "Aside from all else, 'due process' means fundamental fairness and substantial justice.

Vaughn v. State, 3 Tenn.Crim.App. 54,456 S.W.2d 879,883 .“ Black's Law Dictionary, 6th Edition, page 500. It is axiomatic that an independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining” and enforcing, and should observe high standards of conduct so that the integrity and independence of the judiciary is preserved.

In re Thoma, 873 S.W.2d 477, (Tex.1994). Appellant asserts that Judge Phillips, after being presented with the evidence of a lease and the testimony of a breach of that lease, denied him due process by sanctioning the conduct of the tortfeasor. Judge Phillips conduct was intentional and willful and resulted in an unfair ruling which damaged Appellant. 15 There is no evidence before this Court, just as there was no evidence before Judge Phillips, that Appellant was "a liar and a thief'. Appellant filed in the Court for due process, believing that, even though he had been previously exposed to Judge Phillips' extreme rancor, he would nevertheless receive the benefit of the law.

Instead, Judge Phillips denied Appellant his remedy and is so doing, threw due process out the window. CONCLUSION Kevin Bierwirth presented evidence to the Court that he and Stephanie DeLeon had signed a valid lease for the property at 3305 Spaniel Drive, Austin, Texas 78759, Ms. DeLeon occupied the property and Ms. DeLeon had breached the contract by not paying any monies whatsoever, as the lease required. Appellee still owes Appellant the defaulted payments and fees required by the contract.

Appellant was entitled to payment as a matter of law, and because of his bias, Judge J. David Phillips erred when he refused to find in Appellant's favor. PRAYER Appellant prays that this Court find in Appellant's favor, reverse the judgment of the Travis County Court at Law #1 and render a judgment in favor of Appellant for $10,055.42 plus attorney's fees in the amount of $2,500.00. 16 Respectfully submitted, CERTIFICATE OF SERVICE .I, the undersigned, l1erebycertify that a. true and correctcopy of Appellant's Briefwas sent by United States Postal Service on April 21, 2015 to: Stephanie DeLeon 4108 Kilgore Lane Austin, Texas 78727 CERTIFICATE OF COMPLIANCE I, Kevin Bierwirth, :the undersigned, do hereby certify that the number of words in his Appellant's Brief is 3,297 words. 17 APPENDIX EXHIBIT 1 Judgment EXHIBIT 2 Reporter's Record Vol. 2 EXHIBIT 3 Reporter's Record Vol. 3 EXHIBIT 4 Excerpts from Clerk's Record 18 EXHIBIT 1 • ,IT 1§'ThfERE!=;~ORDIFRSD“ ,A:Q;JLtOG'EO:A1!I1” D'~R8f,O thaJRfaln'fIft';:KB ~e~1ttQ!\l~~PQAAtlJ;l ,fttm:i ~~~tratil~' Del.i~i;iQ•.JI.Il1tU:ratal/)cost$,'Of'~lIrtl1re ta,lUl“d lI'Siliij~t . , PJainli.ffQtA~1t!t 1, PARTIES: rhe paniel! lolhis tease ar.: O'!U”A... ot4ll:o*_'d_Ji~j.,l~lI!t-noJ!i _____________~----------------__--_____--___----__--__;and ..":y~“,,,,m(.!:.t..i'''''d,,,d:L__-:-::-:-::; tlli>c>vl'ler of ttl” Property, Landloro.: -Lt.;.bl.UI.1:,;..J_-Lff1l.lkl:i..,1.A“, Tenan\ts): Srt”'nhC1!lie / jI', PRQI'eRTY: !.aMlo,,! teasea to T9nalll !he follow Ing real properly: Address: 33i:1S 6£r!fvie! ~4) 1'72rimaty Term:TI)e [ll“1!11”'Y1“(Tljo! \WS!\ I~mlnalion not less then: (Chock ”pry om) bo~,) q (t) 31) Qay&l>efo$ the l!:xpiratlOn Date. 7!f{2} ,~ days before tile Expiration Data, 8. Ir thiS lease. automatically renew. on a monlft-to mon!h basis. II will tllnlitllJe to ,eneW on a mooUl·lamonlh basis unlll e~her party prO'ides wtl~en nOli,L.)_ ....hI4~IWI.A~IodJ;...t~JS'7...e::.tm:.u;eolJ“....Jt: ilia owner of Ihe .PJ(lperty, Landlord,: _J.6.JJb(;JLI ..._~::::;- ; and ----------~------------------------------- Tenanl(s): S:t'j”balUe Q.LpMQ • 12. PROPERTY: Landlord leases 10 Tenant the following real property: Address: .3~ ,?,Nie/ Ieg8l1ydeschbedes::_ _ _' ,l!JI:6tio.l 17k. .lFZrft _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ ~ ~ The real property and Ihe non-reaJ.pJOPe!1y are coIlectlvety called lIIe ·Property·, 3. TERM: • :t;$ Primary Tarm: .The Plimary term olllUs lease begins and ends as follOWs: • . '11/ COmmencement Dille: o..umbe r ~ ;!2“ If ExpIration Date: J).«m he r .31; :Jt)(2 St Delay of Occupancy: Ten@nl mUS! OC!:!!P), 111ft proOOIj)/ wjtI!ln 5 !layS aller lhe COmmencement Pate, If Tenant bunable to o .~ - C (1)3Ddays beforelhe Explrallon Pate. 1i (2) dayS before Ihe expiration Data. 8, 111111$ 1.,_ 8III()OOlItlcaIIy renews on II monlh-to month basis, It will continue to renew 00 a month-tomonth basl$ until either party provldll$ Y!!iI1§!l notice or lermlnallon to Ihe oIhar party and Ihe notice of .termination will be IIlfective: (Check only one box.) '113”: (1) on Ihe laSt day of Ihe month following Ihe monlll IIi which ilia 0IlIlce isglven. l.andIord Is not r obI~ to prQltlle rent even if Tenant s9mtncl$rS t~ Property IIOfore Ihe IEtrmrnatlon dille, D (2) on 1IIe date de$lllna!ed In the notice but not sooner Ihen30 days after 111& nob Is given and, If necessary, rent WiIl.be prorated on a dally basis• • crAA~111t).5.05 (“ , Receipt1, Image 1 of 14 Page 1 ” • C. Oral not“ of !etmlnaljon Is 001 suf!je!eo! under any ciroumsta!)Cl!l. TIme is of the essellCe f~ providing noIiO?'_o_,1I!n 13. PARKlNGRULES: _._. ._...._ •. _ _ _ _ __ Tenanl may not perm” more IIlan l/...-,... vehicles,. ~Ing but not limited' to 8U\Omoblles. trucks, recraaHonai vehlclell, trailers, moloicycl8S. aP-terram vehicles. jet skis, and boals, on the ProP8l\y unless autho~ by ~8nd1ord in writing.

Tenant may not park or permit any perscn 10 park anyvehfcles.1i1 the yard. Tenant may pelIOn vehlcfes to be parked only in drives, 9&rag\!S, d$$f!lnaled common parking areas, or In .the $tree! if not prohibited by law or ,n owners' association. Tenant may not Stort or permit any person to store any veI)ldes on oredjaOllnl to the Property or on the street in (jcnt of the ProP8l\y,. In accordance with applicable $lal'l lind klCaI1aws.

Landlord may have. tOWed, at Tenant's expanse: (a> $!IY Inoperalive vehicle on or adjacent to the Pithat LandlQrd provided to Tenant under 1hI$1etQpar'YCode. (2) Tenant mll~t ,reIlnbul'Sll l.andlOrd all l.endlord's ~onable cQsl$ under Paragrapb 160(1) for pacIIlng. rem.oVinS. slOring. and seiling the personal property iflll InIhePropeny cafter sumI!\der or ,..bend!jnment. . 11. PROPERTY MAINtENANCE: • A.Teoom's '$ime(il /3!!!!!OIl!llbIlUles: Tenanl, ~I Ter1l!nt'sexj!etlSe. must: (1) kGllP Ihl! Prope~ ~alllll)d sallilary. ' (2) prOmpUy dispo$lI ofaJl fjatbagelll appropriate receptacles: (3) $llpply and Change heaIIng';!Ind air c,onditlOnlng fillersst !easl once II montl1; ,(4) ilUji\lfY iIIId “'pIUCe alillghl bUlbrl;-l\tlore$CVllnObe$,-wtd”allerl4$“tQ~iI 4iItil¢fbl$.aub6ii mQlIOXide. ~rs. gat;Jge~door' \!peners, .caRmg Ian r&l110t8s. ,and o\l1ilr dfiY/Cil$ (QI I/tf, $MI8 \)1le ,nd quality that”“, Ih,lhlil, Prilp~ on Ih!! t;:prnmencement 0111$); ,(S) lnlI\J\taill approprlat!J levels of ~iICe$sery Chemicals Of, matter In any water'$Ol\enat; (6) takeactiOn'lo picmptiy elfminale:any dange”"'“ condition on the Pr 0PIIJ1}'; (1) Iake,aIl necessary precautions 10 prevent broten walei' pipes due 10 freezing Qr other C8\jses; (6) repla~e anylostormtsplacedkeys: (9) Pg; '~.~”;iel • (2) Landlord Is nol obligated to complete a repair on a day other lhan a businiSa day un~ required to do $0 by the Property Code• C. PlIyment of R!!~“~ts:.Jel1llnt will pay Landlord or any contractor Landlord directs Tenant to pey, the f”ust$__ '2 ~ of the cost to repaIr each condition In need of repalr,.nd Landlord will pay the remainder, except for thel'ollowlng conditions which will be paid as foOowa. (1) Repairs Ilia! ll“'dlord will Pay Enth,tv: Landlord will pay the ontire cost to .epalr: la) a condition cauBlld by the Landlord or the negligence of the Ioandlord; Ib) wastewater stoppagG$ or backups caused by deterioration, breakage, roolll, ground condition, faulty construction, or Il1/ilfuncllonlng equipmenl; Ie) a condition that adversely affects the health or safety of an ordinary tenanlwhic:b Is IKlt caused by Tenant; an occupant, a member of Tenant's family, or a gual or Invitee of Tenant; and (d) a condition In the follolYing ilem~ whiCh Is not caused by Tenant.or Tenant's negligence: (1) heating and· air condilfonlng systems; (2) water heatel'$; or (3) waler penetration from structural defects. (2) Repairs thai Tanant wll! Pay Entlmlv: Tenant will pay Landlord or any contractor landlord d.I_I. Tanant to PiIY the entire .cost to repair. t4 II ,nt!tlsd to 'fAiva, landlord may sell or dfsoose of any 'liz'” property In 'accordance with the,prgy!slons of §§4.Q45. pmpgrty Code. • 24. $UBORDINAnON: Thi$ lease and Tenants leasehold Interesl are and wlhbe SlJbject. subordlnele, and In“rlor \9: (I)eri'! l/!In or encumbrance !lOW or later placed on lIIe Properly by landlord; (U)811 advances m8de under any such lien or ellC\lmbrance; (lIQ l/ieinlerl)$t payable on any s~ch lien or encumbrance: (Iv) any ana $llliiliMlli arid extiI1skliii or any iluClilien-oTiltlcumbrllrice:' (vlillifij$TiiCIiVi covenam;arid (VI) the riglll$ of any owne.-s· assocIalion affecting !he Property. 25. CASlIALTV LOSS OR CONDEMNATION: Section 92.054. property Code govetnsthe rights and obQgallOna of the pal1les regatdinge ceSUalty less 10 !he Property. MY proceeds. payment for dluna!lGs. $e\llein_ awards. or oiher SlIilIS paid because ola casually 10” to Il're property will be landlOrd's sore JltOI!I'rty. For the purpose of !hlslem, any coodem nation ohllor a pari or the Property 1$ a casually Joss. 26. SPECIAl PROVISIONS: (OQnot Jnsert. II lease-option or 'aas,,·pUlChaI$l1 c;I_WiIhouf the sssls/enca d legll! cOU/iseL Spe¢ill! obIigallons lIIlel IIIIIlII/liel,lunder $1l1tut9 apply-to :sucll trllll$BC/lOlls.j • Receipt 1.

Image 10 or 14 Page 10 , ReololtnGolLaa........,.;ng: ... '3 31£ $jazalio{ 27. DEFAULT: • A. If Landlord raas to comply wiUllllis lease. Tenant may seek artf reller provided by law. B. II Tenant falls to ~mely pay all amounts due under Ihls lease or otherwise ralls 10 comply willi IIlIs IOllSe. Tenant wUI be In default and: (I) landlord may terminale Tenanl's right 10 occupy !he Property by prQVlding Tenant with lit least one day writlvil notice 10 vacate; (2) all unjlald rems which are payallle durtng the remainder orlllis lease or artf tenGwlll period' will be accelerated wllhout notice or demand; (3) landlord may exerCise landlord's lien under Paragraph 23 and any other rights under this lease Or the Property C¢e: and (4) Tenantwlll be liable for: (a) any 100t rent: (b) La!ldiorcr, cost of releHing the Property InCluding but not limilld to leasing fees. ~ feeS, u1iItty chal'llGS. ami other fees reasORably ~S8ty to reIeIlhe Property: (e) .repaIrs 10 the.PlOperty for U$e beyond normal weer and tear: (eI) all landloRl'a com auociated wlIh eviction of TtnI!nt.lnCluding but noIllmltacI to atIOll18)I's iees;;toIIrt costs. costS or S41V1w. and prtjUdgmentlmeresf; . (e) alll8lldio!li's i:oslS associated wlIh collection or e“,ounts due .under ihis.lease. fJlduding but noI fimlte4 to coIlectlOn fees, late charges. and returned eheck chaI'll8S: lind . , (I) any oIbeI' ~ to wllieh LJII(\lord may be en\i1l8d by law. C; Nolieeto vacateundar Paragraph 278(1) may be,by 8I1y m~arispermittcr9perty 10 acceptable tenants and reducing Tenanfs Ilablllty accordingly. ~.. EARLY TERMINATION: This lease tJeglnson the Commencement Date .aI1!I ends on the ElcpitatiOn date ---_4'IA'AIe'Ii,Kl-{l) ' ”....iIId “Ader Pel'agfapll4; ~1j exlende6 b)'wtitten'lI9teemef1t-cflhe-pe'Ii\I', or fIIi),”",irMIed earlier ,under Pa~ 27, by agreement 01 the partie$, appliCable law. or llils Paragl\!ph28. A. M!lj!ary.8ndFamiIV ViOlence: Tenants mIIf haVe apecial Slalulory rights to terminate IhlllIease'earty In certain ~11uations involVing famHyvlolenc8 or a military deployment orlransfer. ' (1).Ml!I!i!x: If Tenant is or becomes a servicemember or a dependentofaservfcemember.

Tenant may tennlnal8 UiIs JeaSe by delivering '10 Landlord a Wl'i1l8l1 notiCe o(tenninallM and 1ili~liledIQ.all.mprJ(I.'fi~d · a replacementlenanlUn!ease wilh -Iermseppfovedby “andlOrdi orle);)n 3sslg,nri\c”tot!hl$le~sein lIfotmapprQvridby lilfldlord, ' , (4) At inEitlthe Ull'lplo!d ;lgre". “,. permit ana,signee, subtenant. at n!jIlacementlet>ant to occupy the Properly, Tenant Vin,' pay WllldlQrd: , (a) l ! T-eMQfProcures Il)eass1gnee,-svblenalll. Queplac~menne”'intwifb ~rm~S:(JJ Q {QS '...• .• . , , “ O\ii)_._ _% «OO~',s-mol1ll1 t~l\t\lll)llllea$slgn¢e;,s\iblenal)t.or repi;!cem~nll,”,.lll i,to pay~ . (blli k~n(jler“ prOJ:UrGS l~a$~l!Ine!l•• ~titern”,t. ¢t replart ofwblch Ms. DOlLeonwoulll ~sl!~YsbOW IInto thO! Court as fullows~ L SliMMAltV The Flaint\ff ftfed an evi()ffon suit to ~i\1 possession of 3305 SRlUliel Drive, Aufltin, TI=S 78759 {~“l'roJlertY”). HQwevllr. it neither owns the Property nor dian b4Vll any possts$GQo' interest in i~ at the time of th“ P\lrpol'ted ”lellSe.“ 111e urtdisputed fact is that tb!:. ”; B{a:jutifi“ lacks standing to bring this acfion bdcausei~ was nllto landiotd (It the lime; of thc.t purported ”lease“. 0Jt Apiil 21, 2011, the 200th Judicial District C!>urt of TI”!lVIS C.ollllt;Y. Texas. entered an proer alloWing Tm 111e rndependent Bankers Bank {“Bank”} to flll'eoJo$e on the Property>, On J1me7; 2011, .the Property ~ foreclosed upon and $Old.lO:JJjIlBank m$king the 113 • • wlllch ttllo IOllger owaed • to the Defundant approximately silt menths later. Then under the guise: of the “ieJ!l;e,” the Plaintiff entered the Jlrop!!r!y and exerci$ed its “rights” and ,rem£wcd amnO/[_ty $8,000;00 worth ofpr~rty.

Because there WJis tlovlllid lease. thel'Jainriffstole from the Oefl:lidant MOreimpertantly. becau~ the PlaintJrrwaa not a laMlotd it doesllOt'have atan~ing te pursue: this lawsuit. A:s SQIlh, the CoU)'t sl;tollld dlsmi'sJ thjs ,actien with prejudiCe because no atnendment can cure this jurisdiction defect. IL l'ifOTJON TO DlSMlSS EvtDlNa: ltI support of this Motion, Ms, Deleon relies upon. and incorfll)rates hy reference tbllC folltlWing;t\vldenile, whicb iscontslned.lnthcAppendilli fiI~ b¢rewlth. lilxlJmrrA The,200lb Judicial District CIlUitOrder AUoWill1! FOtcclosute TheSubstitute'T(IIStee's peed The Purported Lease Agmrnent ~rrJ) T~Home Equity Security Instrllment EJalllIlTE TTaVis County Ctillftal Appraisal R¢port {In 330S SP!lniil'l DriVe, Austin, Texas'lB1$S1 Lettei'evirleru;mg Plalntitrs ]>ossessiofi of Deftndant's !>foperty Mil Notice teV/lC8te EX'IJDlttG Thlllustib!: of the Pe:aee O!:der Dismissing'Suit WithPna'udiee EX,ullrrH Mfiila¥it'OfMatthew J. Wagner FOr Attorney F~ EJalIB1TJ Affidavltof Amanda Ramos ExmarrJ Affidavit ofLindaHillksand Redacted .Billin& Rl!cords. m. FAe1'UAL nA'Cl\GRQlIl:ID • • A. Tbe 1'rolRrty On lum: 2'4, 2005, Kevjn 6il1rwlrtn executed a Texas Home Equity Sec1llitll TnstMnllllt (“Deed'') S(ll:Uring '!he PropelfY! Pl!tsUant to. the tenns oHhe Deed, ift!le.Projx\I'\y is sold IInder the POWer 1)f Sale provisiol) lUIQ not surrendered, the borrower ”shall ·~· ./I tenllll~ at $ldfera!We cand tfll~ybe tllml)veby writ l)flmsses~ion Ol'otller Qtiurtproceeding."~ B. :rile DlstritWOU:l't (1l1!1e On April 'II, toll, the 10011> JUdicial District Court of TraVis Couoty. Tex:as issued. final orQilr'lll1owml{ the Bank tll fureel~ on tile Property.]

This .oase is currently on l'lPpeal pt:eSilmao1y based on the trial routt's denial of ~t\V1n BierWirth's request fur teave to file It tate response 10 the TIB'slt1Gtion fOrS\lll)mary judgmllnt:.t C.The FhrecIO$\lre~And The N'elf ()wiler On JUne '1, 2011, the 6ank Jo~losed or! tile Property.s Pursuant to tile Deed,K:eVin Bi~rWittll. lIS well .lIS any person residing1at the Property, .became II tenan~ lit· ~l;Ifferance.6 MQf'eOvel'. the l'ravisCotjn~CeI!tnU Appl'1\iwOistrict's.teeords retleQttlla'ttbe Bank-not the l>!aintrff-!'lWilS tft~ Property. 7 I). • The “Ulise!t Agreement On NQVn pli!portedly ¢Iltered iiito 11 l¢llSe agreement for tlte Property,1I HQwever, at tIIis time tile pktlntiffdid notown tile property or hold 1liiY possessory interest in it bCCl\us~ oEtlte foreclosure sale on June 7, 201 t. Therefore. the P]aintiffliad no legal authority tounnat~raJly lease: the Property to Ms. DeLeon. E. Tbe Theft of Defend”nt's Property & Notlee to Vallate On January 17.2012, the Plaintiff c:ntered t~e PropertYlltld rook approximately$8,QOO.OO ofMs.

OeLeon!s\lItIdher mather's property under a non-existent' landlord's lien. AlfiJIlg with helpin&itselfto the'peJ$QJl\U propertYltppsted~ 110liceto vaeatelelter givmg the Dcfel\dlll\tonly t day to yacate. 9 F. The Justice OrThe Peal» EvIction Case Ott Febl'l1ary 2, 2012 the Justice of the Peace dismissed Plaintiff's ,evlctio'li action with pt\ljUdice.'o IV. LWALSTANDA.Rn "tIie pIi!pOse ofa plea to jtniSdiction is to dismiss II cause nfactiM without regard: to wliethertke olaitllhas merit. mCl7Id 1St; 1>. )Jlu~, 34 S.W,ld 541, 554 ('fex.2QOO). The Court must decidewllether ll1e plaitttiff III\S:l!fflnnatively demonsttJl'led IhIs coUrt's jurisdiction to hear i1i'b sult. cased ilUtlie facts aJlesed b~ plaintifij and whl;n JI~ssary to moIve jurisdictlQllal fl!Cts,(lI(~ldence slibmittill:i: tly the J>ilIfies.

Se~ Stqte v, .HoJl~'J,7.·1 S,W;3d 639, 64243 (I'ex. ';.Ofl''I);. Jjlattdlnd~p. $ck Dist.l4 S. W.3i:1 at 555; set, e,/l-. State v. Sledge,. 36 s.w.ld t52, IS5 • (ftll.App.-HlllJSlOn II 01 mistJ 2000, pet, dettitd) (trial OOllrt oondlicted lleari~ $ld ~ived oral testiM'9ny, affidavits. exh~ifS;!lffd~tlpuli}tl~JIll).

St;mljing is Iroomponent ll~ subject Matter j)Jdsdiction and must be resolVed. by ttre Court prior io this !;!1st moving any fbrther. ~e Texas Ass 'n(olB,us, Y. Texps Air CIiIWoI Bil, gS2 S.W.2dA4J),443 (Tex. 1993). V. StJMMAllYOF ARGUMENT The Plaintiff's law suit ~IlQt!ld be qismissed Witlt prej\ldiClt lImltls!! it _ lWt· ha¥!! standing pursue ~e .ction. The .I'lainliff was not a landlord ~ause.it old not hold a PO~$ory interest in the Propetjyat the lime of the PllfJ>orted. “lel1$e,” As suCh, the Plaintiff !)at\not estabJi~ an ;essential ~emel)t llf its forcibledetainuaotion - the..Llmdlord-Tenant l'tIatlQllship. ~ellause IlO AIllendment ¢!Ill CIlre ibis glaring juriSdiet/llMl ~f®t Plilintlff's IaWSIlIt ~ be diem~ed with prejudice~ MQre(lver, bellause M:;.

OeLelln bad to hire le~ n:presentatlon to. defend tltc.fotc.iI)l~ detainer actiol\ inthej~~Court anof the purported "lease>!. Theretbre. l>laintlft could not have legally .leased tfIe Property to Ms. D\ll&Qn. • • B. r~l~titt Was Not A Landlord At The Tim~ Of' The PutpOrted Lease; T..., TherefOle, hDotS Notllave StanalngTc>:l'ursue Tbe Forcible Detaiiler Action. The Plaintiff W8SfiQ! a IMdloi'd at the tinieof the purported lease; therefore,. it: does not h~ standing to purs~ the fQttlllle d~er action. In Texas, a llIndloro has to prove the foUI'!W$ng essentlat elements to SU4lcelid on a forcible detainer aotion: 1) there 1s a llIndlord. tenant relaOOQhip betWeen tbe parties, Z) the tenant 1:1111 be evieted because the tenant is a holdover t$lant. II, tenant at will, a tenant at sutferan~ or jJ tenant of a ~'Who acquired poostiision Jtr.forclble entry; Jl~ the lami/ord made a proper demand for posse~ 4) the time pedQd to vacate.th~ proelittybJIs ~Pired, and 5) the tenant has refused to surren~ possessionio the Ihndlord. TIlX. PRoP. £QI)E §24.002 (elements 1.-S' (emphasis lidded).

If there is no landinro-leTll\llt relatlQosfli,fbelWel:n the parties. there cantle flO fot'eible detainer action. 1. there Jj11l$ 1101 II Ililldlord-ttllflllt I'dtitwn$htp ht!ilw!t1l 'lie PlailltlJJ.,,1/1I M$, J)d;eon. As detailed more~larlyabove. the PllIlntiff.llWUIot de;ntQn:strate that KWlIIf. Jan41qrd ~SCi .at the time of the "l~i(dJd n9t oWli apoSSCS$Ol'1 IJlt.,rest in. the~. Specltlo8ll~ DY way of the forecloll\ll'e' sale, it was at. most a ~atJt at sulferan~,whll1h it nOl 11 poslless\lty lnfer~ at aU.

BecaUse the Plaliltiff was notll' landlDnj: at tIw tim~Qftbe “lease~' it does.lIIlt have slanding to pursue tbJsll~i.on. C;· .~ .DI!LI!OD IS Entitled To ~Qldlle AttopJe)' F. . A!ldC~ Of CQurt ttndl!rTna; R~ot~h PrOcedure 149 And '152”. Ms. DeLeon is entiiled t\l reasonable attomeyfire~ artd-eoslS of COUtl unclCt Texas Rules or CiItIlPloeedure 149 (“Rule 749'') I;Illd ~2 .C'Rule 1S2~), S.1lt! TIlX. It (:”,.1\ 14'. 752. $p«lfllllllty,under Rule 749 RbrealtrOfl:i1> t~ulred \0 POst bQnd to .1Il! ~ :tQensDrjl thl!t~t will ~ute his appeal with etfeJ;ll .anjl pay all 1lO$t/l lind _ages wllldl mal! hi:: lIdjudged offue Pap7 • • bend tn im;Iude all items enumenrted in Rule 152.

Id Onaer Rule 752 the dalltages that are recaverabfe includll that· ()f (IlaSOnaDle and n~essary attomllY f()ell. In the justil:!: and .QI)unty 9Qur:/$, TBx~Qw. P, 75;2; #ll dim Krull v. Somora, 879:S.W:ld329, 332 (Tex.A:}lp.--Houllt, submitted, HAlt A'l1'ORlllEVS,.P.C. {Sf MtTrHT:;W.I,. W'&GNtR Ni¢h~fl1l! t\!.l~ fllll! State Bm:No.:24069863 RQIl SI!:tijl! State BarNo.: 12t28'400 Miltthew r. W~ State BarNo,: 1401$232 701 Brazos, SuiteSOO Austm, Tllxas 78701 pbQlle: {'12) 551·;;041 fax: (S12)692~2833 AT1O:RNEY$FORDlFENJ)~ CERTIFICATE QFSEaVICII TIle undersigned certifies thatthe> ~mg was servCli.on all.counsc:l Qf ~ni Qll April n~20t2, EMAIL Je!€klly ~yL!:lg;U Gro~p 46oS: South La!JuU"Blvd. MtstiU. T1!XlIS 78745 Matthew J.

Wagnet' ., 1 • MR. WAGNER: 'le,s, • 1D1'll:“ Henor. 5 2 I'd like \::''0 nail li18. Oel,eQn to the stand , 3 T'!!'S couar: Okay. M$. peL-eon, e:ome an up . 4 ~all I l”lIve yt;!$tl raiSe£> y.ouir ri9ht hanG!. 5 (W i t.ne-as SWorn I 6 THE COUR,T : Please ceme up andh:ave U like Ille ll. t.Q stand, 5:\:\:? 9 T.na “·001'1.'1': You Q.a:n ai t . 10 S''l'EPHAIHE I.1t.1..Wl'l, llhavin·g been ”. ,·r"“ duly swC);t'Il, t;'est.ifieaas. .fi>1l·0WS; 12 04.l!ElGT E~i\MnIAl' I@N 13 BY MR. WAGNER: ],4 .9 . M,s. DeLeQn~ pleP”'l:'t>1? 22 ~. tt )!t'~t a .l1 my t.e,,!:ui~li'ements, my d:auqhtex's 23 s¢hool ciis.triot, my price range, and Qavinq ttrree 24 bedrGOllls so hila'!:; • did , • A. Kev;in lUez;wi,rth. Q.

Md how do you know tha't he signed that do.c:u'lli ent 'nor, ! Inove to 9 irl'tr“O:d;Uee Itla:l,J1.tiff' s Exl'\:ibit Nwnber 9 . jPlain,t i;ff's Exh·ibit. No . 1 offe”ed) 1(' MR, l“ELLl(: !'to Gbjec,ticO;l:\,,' 'l'O),)!? Honor', 11 THt COUR'1': .1 will he admitted. t?laintiff ' s EKhib-it No.1 adm.itted) Q. 151' 1';\1t. WAGNER) And pripr, to e;nt~lJ';inq l.nto 14 • th'a,tlea's $, lla~ yo:\! ~ad ally Ci;lnversatiolls wi th the 15 De,fendant, Mr., l:!Lerw.irth1 A. o. And w\'lat were t,he Conte-n,ts or -- whal): were the 1,8 cOl'll!ientstho,se ¢env.ers,ati':'lIl;;? 19 'On t”ll.ceclay that we. actual..ly sh()wed the he had mentioned thact: the ,1'>'1.15e wa'l$ in a ll>roce·$ s, and thlIA.tm; DELEON lJIIpnllant artdAppt!Uee I § TRA~ cOUNTY TEXAS MUIlON TV WITIIDRAW Mpvant, Sal' Altotn~; r:c. and iis attom~~ (“Hall”} files its MQtion ta Wifkdraw as ~Q~ael fOI'l>efCndant, S!ePhaitieDe:lAon. [n support, Hall snllWs th~ following: J. l'r;()ted\ln,dJlbtory ~ ,', , L 0)1 Febmaryl. ~012. Kbtealtl'on Managemenes (“K~ltron”) evMio~ pro~ was disl'/lil;.sed.\ly tile JMiee ~thl!PeJi'ceCourt (fue- “JusticeCourf'). on this mo\ioll'. 6, ~y.ant hils.$en'ed Ilefandantbycertlfied .mllil IIlld.t,eguliIl'm1li1 at her~as1 ~adQress ,. -”. . ;,. . _: _._c_ .. . “:0- .- . -. . ......., . . .... . :”. ...... " ali: i~dic~ln tbe~rllficateor:1liSf known address.

MoV!lnt Ims notif«!d netenifartt of its intention to withdtaw~m tJli~ CI!$\l and has inf'lfl!1~ Pefen&l)tbrfietriglitto !:ibjellrintift .AT LAW HI S1l1:PHANlE DELEON Dereltliant MOT'lo.N rOR POSSESSION OF PROPERTY AND VN~A1D lU)NT COlvlES NOW, KBREA,LTIWN MANAGEMENT. by and through its agent Kevin Bierwirth, li:IIdfiles this motion for ttiaJ denovil Seekil)gjudginentagainstElefen4lmt s~~ .PeLeoli for pos~O!l'l)fhis re.nlal PI'()PetiY and unpaid rent t~78150 I , ST:A:TE OF TEXAS } }SS TR.AVis COUNTY } AFFIDAVIT OF BUS:{NESS RECORDS I, Kevin Bietwirtb, aftllSt that lam M agent for KBREALTRON MANAOOMENT. That 1 Wl\S presetr\ ·when Stepllanle DeLeon signed It lease til tent property at 3305 Spaniel Drive. Austin.: TJ!; 18159; I ean attest that during her stay in the property, Ms. D¢Leon di\i not pay the ~ty depoSit nOrMY rent what5llever. (gave Ms. Del-eon notice to pay" !IS .pe~ the lellSe, !lI' I would 1.):e f~d to lllI:C'Cute a Landlord 'sLienandseize personlil property J!1lieu of payment,of !j;!n~; Ms. D¢leon ignored.the Notice, .1 enlered the property arid' fuolcsevera:l items in person;d property, i~udmg II; wasller and.dQ'e; and'three CQmputets.

Ms, 0e1l;on gcYer redeent~ Ule property and refused to abandon the pte!nises. It w,alI' necelJSllrY forme: tarem a storage unit in whlchto store Ms. DeLeon's personal property, pending herpaymenHlfl'ellt. Ms.

DeJ;;oon. at S~ point, abandoned the property, Without notice ton», tllld atJer kaming, of tJ!e Abandonment, Iblld the prop«typainted. cieaned and fixed to the GPndition.m which: it ·was~ the·tim.e ofMs; DeLeon's octlupancy. lJeclluse of the diffieu!tles 'caused by Ms. Deleon Md her attorney, it I1l!$ been llecesSarY for me to ;engage thec!re~!les mllli attorneY to attempt 10 evict her lind deal with the ret;di!U~ 1IIl1i01lS Ms. DeLeon wok in order tooc~upy the prQperty tentfi'E!e. 1 am aware !bat KBREALTlWN MANAGEMENT paid $2,500 retainer for attorney &er\7i1!eS to assist in the legalities in which Ms. DeLeon e!lgl\g~.

It was my job tIT ke\lJ1 a.t'Ubllitlg rota! af.the expenses incurred in the 1~ of the~rty anti . . ....“... tp e'l'iet att”“'''ts . ' ”"" "“,. DeLeo. n -~ , . . ”·e .~ AI“, expe”“ . ~”"“'hed' 'Wr'” '"""“ . to this Affidavit is:true 1Uld CDeleon 4J:Q& Kilgtlre Lane Austin, ~ 78121