Documente Academic
Documente Profesional
Documente Cultură
_____________________
In the
Supreme Court of Texas
___________________________________________________________
JAMES ALLEN MCGUIRE,
Petitioner,
v.
FANNIE MAE A/K/A FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Respondent.
On appeal from cause no. 02-11-00312-CV
Second District Court of Appeals
Fort Worth, Texas
PETITION FOR REVIEW
Respectfully submitted,
James Allen McGuire (Pro Se)
902 Rusk Drive
Euless, Texas 76039
Ph. 817 420-4151
Email: j.mcguire@trilliondollarfubar.com
Appeal Page 1
IDENTITY OF PARTIES & COUNSEL
Petitioners
James Allen McGuire
902 Rusk Drive
Euless, Texas 76039
Ph. 817 420-4151
Respondent
Fannie Mae a/k/a Federal
National Mortgage Association
Counsel Representing
Janna W. Clarke
Broude, Smith & Jennings, P.C.
309 West 7
th
Street
Suite 1100
Fort Worth, Texas 76102
Appeal Page 2
TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL ............................................. 2
TABLE OF CONTENTS ..................................................................... 3
INDEX OF AUTHORITIES ................................................................ 4,5
I. STATEMENT OF THE CASE ................................................... 6
II. STATEMENT OF JURISDICTION .......................................... 7
III. ISSUES PRESENTED FOR REVIEW ...................................... 8
1. Did the trial Court of Appeals error in rendering an opinion based upon
evidence not raised in the trial court? Appendix, Exhibit A.
2. Did the Court of Appeals error in not rendering an opinion based on evidence
entered into the trial court record? Appendix, Exhibit A.
3. Did the trial court and Court of Appeals commit an error of common law in
not properly applying law and protecting the Appellees rights as guaranteed
by the United States Constitution?
4. Did the trial court and Court of Appeals error in their opinions violate
Appellees rights as guaranteed by the U S Constitution in violation of 18
USC 242 - Deprivation of Rights Under Color of Law?
5. Did the Court of Appeals error in their opinion violate Appellees rights as
guaranteed by the U S Constitution by failing to address violations of 18 USC
1621 Perjury Generally?
6. Did the Court of Appeals error in their opinion violate Appellees rights as
guaranteed by the U S Constitution by failing to address violations of 1623
False Declarations before Grand Jury or Court?
7. Did the trial court commit gross error and did the Court of Appeals itself
further violate Appellees right by failing to address violations of 18 USC
1001 Statements or Entries Generally?
8. Did the Court of Appeals error and deprive Appellee of Due Process of Law
by denying Appellees request for a true and correct copy of the trial Courts
record? Appendix, Exhibit D.
IV. STATEMENT OF FACTS .......................................................... 11
V. SUMMARY OF ARGUMENT .................................................... 12
VI. ARGUMENT ............................................................................... 13
Appeal Page 3
Petition For Review - Texas Supreme Court
VII. PRAYER ...................................................................................... 15
VIII. CERTIFICATE OF SERVICE .................................................. 16
INDEX OF AUTHORITIES
Cases
Bullock v. Amoco Production Co., 608 SW2d 899 - (Tex. 1980) ......... 9
Randall's FoodMkts, Inc. v. Johnson, 891 S.W.2d 640 (Tex.1995) .. 9
Employees Ret. Sys. of Tex. v. Blount, 709 S.W.2d646 (Tex. 1986) .. 10
Tex. Ass'n of Bus. v. Tex. Air Control Bd, 852 S.W.2d 440 (Tex.1993) 10
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex.2004) ............................................................................................. 10
Texas Catastrophe Property Insurance Association v. Council of
Co-Owner of Saida II Towers Condominium Association, 706 S.W.2d
(1986).10
Crumpton v. Stevens, 936 S.W.2d 473, 476
(Tex.App.-Fort Worth 1996, no writ) .................................................. 15
Statutes
UNITED STATES CONSTITUTION
TEXAS CODE OF CRIMINAL PROCEDURE
Tex Cr. Code Ann. 47.01(a) ................................................ 12
TEXAS CONSTITUTION
Article V, 1-a(6)A ................................................................. 12
TEXAS PENAL CODE
TEXAS CIVIL CODE
TEXAS LOCAL GOVERNMENT CODE
TEXAS GOVERNMENT CODE
22.001(a)(2) ........................................................................................ 9
22.001(a) (6)........................................................................................ 9
Tex. Gov't Code 311.016(3)
TEXAS PROPERTY CODE
24.001-24.011
Appeal Page 4
24.002
24.002(b) ............................................................................................. 16
24.002(b) - 24.005(f) ......................................................................... 16
24.005 ................................................................................................. 16
24.005( f ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
OTHER
Canons of the Texas Code of Judicial Conduct
Op. Tex. Att'y Gen. No. GA-0364 (2005)
Larry York D/B/A York Tank Trucks (Petitioner) v State of Texas
(Respondent) as Cause No. 09-0905
RULES
TEXAS RULES OF APPELLATE PROCEDURE
Tex. R. App. P. 56.1(a)(5) .................................................................... 9
Tex. R. App. P. 47.1 ............................................................................. 16
Tex. R. Civ. P. 21 ................................................................................. 16
Tex. R. Civ. P. 21a ............................................................................... 16
Tex. R. Civ. P. 753 ............................................................................... 16
APPENDIX
Court of Appeal Opinion - Exhibit A .................................................... 192
Appellant 1
st
Amended Brief Exhibit B ............................................. 17
Appellant Response Brief to Appellee Brief Exhibit C ..................... 155
Order Denying True Copy of Record Exhibit D ................................ 206
Appellee Brief Exhibit E .................................................................... 175
JP Order Exhibit F ............................................................................. 201
Motion to Dismiss at JP Exhibit G .................................................... 203
Notice to Court of Appeal Potential Record Tampering Exhibit H .. 209
Appellee Order of Indigence Exhibit I ............................................... 210
Appeal Page 5
Petition For Review - Texas Supreme Court
PETITION FOR REVIEW
TO THE HONORABLE SUPREME COURT OF TEXAS:
Petitioner, James Allen McGuire, pursuant to Texas Rule of Appellate
Procedure, respectfully submits this Petition for Review seeking review
of the Second District Court of Appeals' opinion in this matter. As set
forth below, this Honorable Court should grant this Petition.
I. STATEMENT OF THE CASE
Nature of the case: This dispute began as a forcible detainer action
initiated by a party not having lawful standing to invoke a trial courts
jurisdiction. Petitioner (Appellant) filed a general denial and a Motion to
Dismiss for want of standing to invoke the courts jurisdiction. The
justice court opined in favor of Appellee. The court without jurisdiction
awarded possession of real property to Appellee. Appellant timely
appealed the judgment to the County Court at Law One, Tarrant
County, Texas. This court also lacking jurisdiction also awarded
possession of real property to Appellee relying upon an unproven
Substitute Trustee Deed unlawfully filed of recorded by Appellee as the
sole evidence to grant possession. Appellant timely perfected an Appeal
to the Second Court of Appeals at Fort Worth, Texas. Appellant noticed
in written letter (Appendix, Exhibit H) the Appellate Court that the trial
courts records where inaccurate, this inaccuracy would have shown that
the trial court was aware that the evidence may have been tainted, but
such fact was removed from the record supplied to the Court of Appeals.
Upon notice being sent by Appellee of such error to the Court of Appeals,
the appeal court then requested a response from Appellee concerning the
incorrect trial courts record who objected to a true and correct copy of the
record be proved up. The appeal court sided with Appellee (Appendix,
Appeal Page 6
Exhibit D); therefore Appellants rely upon a non-true and non-correct
copy of the trial courts record and as such, Appellee was denied a
guaranteed constitutional right.
Opinion of the panel: The panel that decided the case and affirmed the
trial court was composed of Justices Livingston, C.J., Gardner and
Gabriel, JJ. Upon the court of appeals rendering judgment issued in
opinion on 22 March 2012. On March 27, 2012, Appellant was left with
no option but to appeal to the Texas Supreme Court for the benefit of all
citizens of Texas as the side effect of the appeals courts civil ruling would
create havoc in regards to TEXAS CODE OF CRIMINAL
PROCEDURE, Title 1.
II. STATEMENT OF JURISDICTION
1. The Supreme Court has jurisdiction over this appeal under Texas
Government Code 22.001(a)(6) because the court of appeals has
committed errors of law of such importance to the state's jurisprudence
that they should be corrected. See Tex. Gov't Code 22.001(a)(6); Tex. R.
App. P. 56.1(a)(5), (6); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d
640, 643 (Tex.1995)
2. The Supreme Court has jurisdiction over this appeal under
Government Code 22.001(a)(2) because the court of appeals decision
conflicts with this Court's decision in the following:
(A) These statutes created a right not existing at common law and
prescribed a remedy to enforce the right. Thus, the courts . . . [only
have jurisdiction according to the rules] provided by the statute
Appeal Page 7
Petition For Review - Texas Supreme Court
which created the right." See, e.g., Bullock v. Amoco Production Co.,
608 S.W.2d 899, 901 (Tex. 1980).
(B) Statutory provisions are mandatory and exclusive and must be
complied with in all respects." e.g. Employees Ret. Sys. of Tex. v.
Blount, 709 S.W.2d 646, 647 (Tex. 1986).
(C) Subject-matter jurisdiction is fundamental and may be raised for
the first time on appeal. See Tex. Ass'n of Bus. v. Tex. Air Control
Bd., 852 S.W.2d 440, 445 (Tex.1993).
(D) Subject-matter jurisdiction is a question of law, subject to de novo
review. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226 (Tex.2004)
(E) Texas Catastrophe Property Insurance Association v. Council of
Co-Owner of Saida II Towers Condominium Association, 706 S.W.2d
644 (Tex. 1986). ("because relevant cause of action derives from
statute, not common law, statutory provisions are mandatory and
exclusive and must be complied with in all respects'")
III. ISSUES PRESENTED FOR REVIEW
1) The Second Court of Appeals committed an error of such
magnitude, such order as written has the potential for the citizens of
Texas to be deprived of constitutional rights and loss of faith in the
judicial system.
The Preamble to the Texas Judicial Canons states in part:
Preamble
Our legal system is based on the principle that an independent, fair and
competent judiciary will interpret and apply the laws that govern us. The
role of the judiciary is central to American concepts of justice and the rule
of law. Intrinsic to all sections of this Code of Judicial Conduct are the
Appeal Page 8
precepts that judges, individually and collectively, must respect and
honor the judicial office as a public trust and strive to enhance and
maintain confidence in our legal system.
Courts that rely upon Rice v Pinney and its derivatives defy in logic
what is lodged into law
1
and potentially could provide that the state is
liable for actions of an individual acting in an official capacity to take
such property, but I would rather fathom such justice(s) would be held
easier accountable in their personal capacity:
Where a citizen is prohibited from filing a criminal complaint due to law
enforcement not willing to accept such criminal complaint, one is
deprived of a guaranteed constitutional right. All facts report that only
law enforcement officials can file, i.e. AO-91, criminal complaint with the
federal courts.
TEX CR. CODE ANN. 47.01a : Texas Statutes - Article 47.01A:
RESTORATION WHEN NO TRIAL IS PENDING
(a) If a criminal action relating to allegedly stolen property is not
pending, a district judge, county court judge, statutory county court
judge, or justice of the peace having jurisdiction as a magistrate in the
county in which the property is held or a municipal judge having
jurisdiction as a magistrate in the municipality in which the property is
being held may hold a hearing to determine the right to possession of the
property, upon the petition of an interested person, a county, a city, or the
state.
Added by Acts 1977, 65th Leg., p. 2034, ch. 813, Sec. 1, eff. Aug. 29, 1977.
Amended by Acts 1987, 70th Leg., ch. 548, Sec. 1, eff. Aug. 31, 1987; Acts
1993, 73rd Leg., ch. 860, Sec. 1, eff. Aug. 30, 1993; Subsec. (a) amended
by Acts 1995, 74th Leg., ch. 184, Sec. 3, eff. May 23, 1995.
2) The Second Court of Appeals did commit a grave error when not
opining on all points appellant raised, including facts filed of court record
1
Appellant does not address property that has a per se government mandated licensing requirement
such as for automobile.
Appeal Page 9
Petition For Review - Texas Supreme Court
that a fraud has been committed against a trial court, not by testimony,
but by admission into the courts record and such admission was by the
Appellee; the public could only view this non-addressing of an issue as a
criminal act to conceal a fraud and as such Article V, 1-a (6) A of the
Texas Constitution would come to bear as well as violation under 18
USC. Petitioner will not speculate as to why notice of such criminal
actions was not addressed. Again, such actions have the potential for
citizens to lose faith in the judicial system. Failure to properly opine in
accordance to law in this instant suit could only be seen as a violation of
the Texas Judicial Canons, amongst others, and the record provides no
escape from:
TEX CR. CODE ANN. 38.18 : Texas Statutes - Article 38.18:
PERJURY AND AGGRAVATED PERJURY
(a) No person may be convicted of perjury or aggravated perjury if proof
that his statement is false rests solely upon the testimony of one witness
other than the defendant.
(b) Paragraph (a) of this article does not apply to prosecutions for perjury
or aggravated perjury involving inconsistent statements.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd
Leg., p. 973, ch. 399, Sec. 2(A), eff. Jan. 1, 1974.
In referencing Respondent State of Texass Brief on the Merits that is
before this court in Larry York D/B/A York Tank Trucks (Petitioner) v
State of Texas (Respondent) as Cause No. 09-0905 submitted by Greg
Abbott, Attorney General Abbott of Texas appears to be acting for the
best interest of the citizens of Texas as noting the opinion authored by
the Second Court of Appeals is in error.
When the Texas Attorney General steps forward to protect the interest of
millions of Texas citizens from errors made by appellate courts, it could
only be thought of that faith in the court is in dire state of distrust. Many
a learned in the legal profession has said always hold your cards tight to
the vest. Maybe it makes legal sense but logically it lacks, as an author, I
Appeal Page 10
have released hundreds of writings which explain the civil and criminal
fraud surrounding todays financial fiasco. Some in academia have made
notice to the public that such writings might be of interest to readers. At
last extrapolation, the number of readers is in the million with half of
readership being that of foreign nationality.
IX. STATEMENT OF FACTS
The court of appeals identifies the issue incorrectly as a forcible detainer
action begun by a lawful entitled party. As the appellate court opined,
"In a forcible detainer action, the only issue the trial court determines is
whether the party seeking to obtain possession is entitled to actual and
immediate possession, and the merits of whether a party has title shall
not be determined. See Tex. R. Civ. P. 746; Black v. Wash. Mut. Bank, 318
S.W.3d 414, 416 (Tex. App.-Houston [1st Dist.] 2010, pet. dism'd w.o.j.);
Williams v. Bank of N. Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.-Dallas
2010, no pet.), herein, is entitled, this short partial fact alone provides
that only an entitled party is permitted to file a forcible detainer. In this
instant suit, there is currently and never again will be a party entitled.
The court furthers opined in error: To the extent that McGuire complains
of defects in the foreclosure process, he may pursue that complaint in
district court, but it may not be considered in this action. See Shutter, 318
S.W.3,d at 471; Williams, -315 S.W.3d at 927 (citing Scott, 127 Tex. at
35,90 S.W.2d at 818-19). Appellant argued as per the opinion: he
disputes, in essence, only whether the seller had the authority to sell the
property to Fannie Mae in the first place. Herein, the courts opinion
conflicts with criminal prosecution under Title 47 of the Criminal Code:
Thus, Chapter 47 requires both (1) a determination whether there is
probable cause that the item was illegally obtained and [Then Step 2]
This twisting of words and truth add to the disdain of the people to have
faith in the judicial system. As this instant suit was civil in nature, the
opinion rendered by the Court of Appeals has a byproduct of upending
decades of criminal law in essence saying a thief in possession of stolen
Appeal Page 11
Petition For Review - Texas Supreme Court
property cannot be prosecuted until the unlawful seller is under
prosecution and until such time, a criminal has right to possession. By
the time an innocent party could retrieve the receipts to prove a crime,
the cake would spoil and such the lawful owner would have been
deprived of what he legally owned. Herein, the rights of the cake thief
exceed the rights of the lawful owner. Where a court refuses to hear
evidence presented by an owner proving theft deprives the owner of a
constitutional rights that ownership grants. If such court is restricted
from hearing such evidence, then constitutional rights of owners have
been violated. This court has the authority and the duty to the people to
see that laws are written in a constitutional manner and the lower courts
follow constitutional rights the people are entitled too. Herein, this
instant suit, the rights granted under the constitution and by due
process of law were violated.
V.SUMMARY OF THE ARGUMENT
This dispute began as a forcible detainer action by a party not lawfully
entitled to possession filing a suit for forcible detainer. Petitioner
(Appellant) filed a general denial. The judgment of the justice court
signed a judgment in favor of the Appellee. The court awarded possession
of real property to Appellee. The Appellant timely appealed the
judgment to the County Court at Law One, Tarrant County, Texas. This
court also awarded possession of real property to Appellant relying upon
a false Substitute Trustee Deed filed of recorded by Appellant. Appellant
timely perfected an Appeal to the Second Court of Appeals at Fort Worth
which found trial court decision was not in error, Texas and timely files
this Petition for Review with the Texas Supreme Court. If such party had
a lawful right to file suit for forcible detainer then such order by the court
may have been found valid, but this is not the facts in this case.
Appeal Page 12
Many of the background facts written in the opinion are based on
allegations and not of evidence introduced. The fact is, tortuous acts
were committed by the alleged seller of the real property. It is
unfortunate that the Appellee was not aware of the precise legal issues.
However, Appellee was aware of legal implication and thus could not
claim a right of being an innocent purchaser. The Court of Appeals did
correctly notice that Appellee has legal remedies available to pursue
under other legal action, a right to clear the clouds appearing upon title
to property. This factor alone should have been sufficient to prevent
Appellee from taking property that rightfully belongs to the Appellant.
The court of appeals neglected to take into account that the jurisdiction
of the appellate court is contingent upon the jurisdiction of the trial court
and that the trial court's jurisdiction is contingent upon the jurisdiction
of the justice court. Crumpton v. Stevens, 936 S.W.2d 473, 476
(Tex.App.-Fort Worth 1996, no writ) (The appellate jurisdiction of a
statutory county court is confined to the jurisdictional limits of the
justice court, and the county court has no jurisdiction over an appeal
unless the justice court had jurisdiction.) As the Appellate Court was
limited in taking legal actions which should have been reversing the
lower courts ruling and dismissing the case for want of jurisdiction. The
Second Court of Appeal failed in its duty to follow law, violated Appellant
Constitutional Rights which led to this appeal being brought forward to
this court.
VI. ARGUMENT
1: The petitioner hereby incorporates by reference petitioner's appeal
brief submitted to the Second District Court of Appeals (Appendix
Exhibit B), petitioners reply brief submitted to the Second District Court
Appeal Page 13
Petition For Review - Texas Supreme Court
of Appeals (Appendix Exhibit C) and the Second District Court of
Appeals Opinion (Appendix Exhibit A).
Opining, the court of appeals overruled the petitioner's first issue as if
the petitioner had argued a claim to title. The court of appeals' misread
the facts presented and penned an opinion that appeared to be based
upon an argument not raised by Appellant.
"The demand for possession must be made in writing by a person
entitled (emphasis added) to possession of the property and must
comply with the requirements for notice to vacate under Section 24.005."
Tex. Prop. Code Ann. 24.002(b) (Vernon 2000). The word "entitled"
creates or recognizes a condition precedent, Tex. Gov't Code 311.016(3).
In the instant case the Appellee did not satisfy conditions precedent prior
to the filing of the forcible detainer action in the justice court; secondly,
Appellee would never be able to satisfy the conditions precedent.
2: The court of appeals did not address the challenge to the jurisdiction of
the trial court to convene a hearing or trial on the issue of possession. See
Tex. R. App. P. 47.1 Tex. R. Civ. P. 21, 21a, 753 Issue 1 and Issue 2 are
indeed challenges to the jurisdiction of the lower courts but that is where
the similarity ends. The justice court and the trial court did not acquire
subject matter jurisdiction as discussed above. Tex. Prop. Code
24.005(f). The trial court convened the trial or hearing in the complete
absence of jurisdiction. See Tex. R. Civ. P. 21, 21a.
VII. PRAYER
Appeal Page 14
For the reasons stated in this petition, petitioner, James Allen McGuire,
respectfully asks this Honorable Court to grant this petition for review.
Petitioner also requests this court order law enforcement to investigate
all criminal activity that is presented in the Appellants Briefs and
concealment of fraud covered up by the opinion penned by the Second
Court of Appeals.
Lest of pray that this court has not lost sight of rights found in the
United States Constitution:
Preamble
We the People of the United States, in Order to form a more
perfect Union, establish Justice, insure domestic Tranquility,
provide for the common defence, promote the general Welfare, and
secure the Blessings of Liberty to ourselves and our Posterity, do
ordain and establish this Constitution for the United States of
America.
For if sight is lost; then faith is lost.
Respectfully Submitted,
___________________________
James Allen McGuire, Pro Se
902 Rusk Drive
Euless, TX 76039
Ph: 817 420-4151
Email: j.mcguire@trilliondollarfubar.com
CERTIFICATE OF SERVICE
Appeal Page 15
Petition For Review - Texas Supreme Court
I certify that a copy of petitioner's Petition for Review to the Texas Supreme Court
(Cause No. 02-11-00312-CV in the Second District Court of Appeals) was served on
respondents, Fannie Mae through counsel of record, Janna W. Clarke, whose
address is 309 West 7
th
Street, Suite 1000, Fort Worth 77102, by USPS on
March ___, 2012.
Appeal Page 16
NO. 02-11-00312-CV
IN THE
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
JAMES ALLEN MCGUIRE
Appellant
In Re: FEDERAL NATIONAL MORTGAGE ASSOCIATION A/K/A FANNIE
MAE
Appellee,
V.
JAMES ALLEN MCGUIRE AND ALL OTHER OCCUPANTS OF 902 RUSK
DRIVE, EULESS, TEXAS 76039
Appellant
APPELLANTS FIRST AMENDED BRIEF
APPEAL FROM
CAUSE NO. 2011-004521-1
IN THE County Court at Law #1, TARRANT COUNTY, TEXAS
James McGuire
902 Rusk Drive
Euless, Texas 76039
(817) 420-4151
ORAL ARGUMENT REQUESTED
Page 1 Appeal Page 17
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL Page 2
TABLE OF CONTENTS Page 3
INDEX OF AUTHORITIES Page 4
CASES Page 5- 6
JURISDICTION Page 7
JUDICIAL NOTICE Page 7
REFERENCES Page 8
STATEMENT OF THE CASE Page 8
STATEMENT ON ORAL ARGUMENT Page 8
ISSUE PRESENTED Page 8
WHETHER THE TRIAL COURT ERRED IN OPINING WITHOUT
JURISDICTION
STATEMENT OF FACTS Page 9
SUMMARY OF THE ARGUMENT Page 9, 10
ARGUMENT Page 10-20
SUMMATION Page 21-24
CONCLUSION Page 24
PRAYER Page 25
CERTIFICATION Page 25
CERTIFICATE OF CONFERENCE Page 25
CERTIFICATE OF SERVICE Page 26
APPENDIX
Exhibit A Motion to Dismiss JP Standing Page 27 -29
Exhibit B 141
st
Lost Note Affidavit Page 30 - 32
Exhibit C 141
st
Order Page 33
Exhibit D BDFTE March 07 Letter Page 34
Exhibit E Court Appeals Response by Wells Fargo Page 35 -42
Exhibit F Trial Court Order Page 43-44
Page 3 Appeal Page 19
INDEX OF AUTHORITIES
Texas Government Code 22.220
Texas Government Code 51.903
Texas Government Code 74.041-74.062
TEX. PROP. CODE ANN. 12.007(a) (Vernon 2004)
Texas Local Government Code 192.001
Texas Local Government Code 192.007
Texas Property Code 11.001
Texas Property Code 24.001
Texas Property Code 24.004
Texas Property Code 24.011
Texas Property Code, Chapters 11, 12, 13
Texas Property Code
Texas Rules of Civil Procedure 738 to 755. See id. at 739
Texas Rules of Civil Procedure 746
TEX. PROB. CODE ANN. 489
TEX. GOVT CODE ANN. 27.031(b)(4) (Vernon 2004)
Texas Penal Code Chapter 32
Texas Penal Code
Page 4 Appeal Page 20
CASES
Tex. Natural Res. Conservation Commn v. ITDavy, 74 S.W.3d 849, 855 (Tex.
2002)
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998)
Tex. Assn of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 44546 (Tex. 1993)
DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008)
Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998)
In re B.I.V., 923 S.W.2d 573, 574 (Tex. 1996)
Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 252 (Tex. App.Dallas 2005, no
pet.)
Williams v. Lara, 52 S.W.3d 171, 17879 (Tex. 2001)
SCI Tex. Funeral Servs., Inc. v. Hijar, 214 S.W.3d 148, 153 (Tex. App.El Paso
2007, pet. denied)
State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980)
World Sav. Bank, F.S.B. v. Gantt, 246 S.W.3d 299, 303 (Tex. App.Houston
[14th Dist.] 2008, no pet.)
Countrywide Home Loans, Inc. v. Howard, 240 S.W.3d 1, 4 (Tex. App.Austin
2007, pet. denied)
Collins v. Tex Mall, L.P., 297 S.W.3d 409, 418 (Tex. App.Fort Worth 2009, no
pet.)
Texas Dept of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004)
Page 5 Appeal Page 21
Combs v. Entertainment Publns, Inc., 292 S.W.3d 712, 719 (Tex. App.Austin
2009, no pet.)
Stop the Ordinances Please v. City of New Braunfels, 306 S.W.3d 919, 925 (Tex.
App.Austin 2010, no pet.) (Citing Texas Assn of Bus., 852 S.W.2d at 446)
Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998)
In re B.I.V., 923 S.W.2d 573, 574 (Tex. 1996)
James McGuire v. Wells Fargo Bank, N.A. [141st District Court, Cause No. 141-
223599-07]
In Re: A Purported Lien or Claim Against James McGuire (Cause No. 02-11-
00140-CV, Court of Appeals, Second District of Texas) (Pending Opinion)
Cattin v. Highpoint Village Apartments, 26 S.W.3d 737, 738-39 (Tex. App.Fort
Worth 2000, pet. dismd w.o.j.)
Ward v. Malone, 115 S.W.3d 267, 270 (Tex. App.Corpus Christi 2003, pet.
denied)
Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.Dallas 2001, no pet.)
Ward, 115 S.W.3d at 270
Goggins v. Leo, 849 S.W.2d 373, 377 (Tex. App.Houston [14th Dist.] 1993, no
writ)
Aguilar v. Weber, 72 S.W.3d 729, 731 (Tex. App.Waco 2002, no pet.)
Joachim, 315 S.W.3d at 865
Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005)
Page 6 Appeal Page 22
JURISDICTION
This court has jurisdiction pursuant to Texas Government Code Sec.22.220,
Texas Government Code 74.04174.062, Texas Government Code.
JUDICIAL NOTICE
Appellant received from the Second Court of Appeals the records of the trial courts
on December 11, 2011. Page 5 of Volume 1 of the Reporters Record [R, V1, pg
5], the Court Reporter notes that the Reporters transcription is a true and correct
copy of the oral argument held before the trial court. In fact, the transcription has
omissions of critical words spoken by the trial court judge where such omission is
detriment to Appellants appeal.
The trial courts record also show an omission of Appellant filing of a Motion to
Dismiss to the Justice Court where service was rendered upon Lauren Christoffel,
Bar I.D. # 24065045, 15000 Surveyor Blvd, Suite #100, Addison, Texas 75001 on
May 11, 2011 by U S Mail. [Exhibit A]
Appellant can only consider these known errors as willful actions to deny the
Appellant due process to law and this court should consider the matter as being
severe acts of injustice and possibly criminal and take appropriate action for the
preservation of justice.
However, Appellant has filed this Brief based on the inaccuracies of the record and
whereas the court finds the records are of error, this court, if required, should allow
Appellant to file an Amended Brief based on true and correct copies of the record.
Page 7 Appeal Page 23
REFERENCES
The Clerks Records will be cited by page number and paragraph number, (where
appropriate) e.g. CR p. [page]. para.[] or CR p.[page]. The Reporters Records
will be cited by page number and paragraph number, (where appropriate) e.g. RR,
V, p. [page]. para.[] or RR, Volume#, p.[page].
STATEMENT OF THE CASE
Appellee without legal Standing filed with the Justice Court a Forcible
Detainer action, (CR, p. 2). Appellant filed a General Denial and a Motion to
Dismiss (Exhibit A) the suit as Appellees lacked standing to invoke the Justice
Courts and the trial courts jurisdiction. Appellant was forced to file an appeal to
Justice Court to the County Court (CR, p.79) and ultimately to this court Second
Court of Appeal.
STATEMENT ON ORAL ARGUMENT
Appellant requests Oral Argument
ISSUE PRESENTED
Whether the trial court erred in incurring jurisdiction where Appellee lacked
standing to invoke the trial courts jurisdiction?
Page 8 Appeal Page 24
STATEMENT OF FACTS
1. Federal National Mortgage Association filed in Tarrant County Public
Records an ineligible and unlawful Substitute Trustees Deed (CR, p.7)
conveying equitable title ownership away from Appellant.
2. Federal National Mortgage Association without lawful standing filed a
Forcible Detainer suit against Appellant as a tenant in the Justice Court.
3. Appellant argued the Justice Court was without jurisdiction and timely
appealed the Justice Courts opinion (CR, p. 20) to the County Court of Law.
4. Appellant argued jurisdiction before the County Court of Law and Appellant
further appealed to this court the trial courts improper acceptance of
jurisdiction.
5. The trial courts erred in entering an order (CR, p. 75) as Appellees were
without standing to invoke the trial courts jurisdiction. The trial court
lacking jurisdiction is incapable of rendering any opinion.
6. Appellant timely filed a notice of appeal with this court.
SUMMARY OF THE ARGUMENT
First error, the Trial Court erred by issuing a ruling based on an improper
acceptance of a ineligible filed claim to equitable title as being colorable and
extending jurisdiction to a party that lacked standing.
Second error, the Trial Court was made aware that legal and equitable title disputes
existed and relied upon a ineligible instrument as being close enough colorable
Page 9 Appeal Page 25
claim to title; this rendered the court without jurisdiction and as such reliance was
placed upon an ineligible instrument for determination and should be considered a
decision upon issues of title.
Facts entered into public and court records clearly show that claims made to title
by Appellant are not factual.
ARGUMENT
Standing: Legal Principles
1. For a court to invoke its authority, the court must have been given jurisdiction
by a party that has legal standing. Tex. Natural Res. Conservation Commn
v. ITDavy, 74 S.W.3d 849, 855 (Tex. 2002); see Mayhew v. Town of
Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Standing is a component of
subject-matter jurisdiction. Tex. Assn of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 44546 (Tex. 1993); see also DaimlerChrysler Corp. v. Inman,
252 S.W.3d 299, 304 (Tex. 2008) (A court has no jurisdiction over a
claim made by a plaintiff without standing to assert it.). If a party lacks
standing to bring an action, the trial court lacks subject-matter jurisdiction to
hear the case. Tex. Assn of Bus., 852 S.W.2d at 44445.
2. The issue of Standing focuses on the question of who may bring an action.
Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998). The
general test for standing is whether there is a real controversy between the
parties that will actually be determined by the judgment sought. Tex. Assn
of Bus., 852 S.W.2d at 446. To establish standing, a person must show a
personal stake in the controversy. In re B.I.V., 923 S.W.2d 573, 574 (Tex.
1996).
Page 10 Appeal Page 26
3. Standing to sue may be predicated upon either statutory or common law
authority. Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 252 (Tex.
App.Dallas 2005, no pet.); see Williams v. Lara, 52 S.W.3d 171, 17879
(Tex. 2001). The common law standing rules apply except when standing is
statutorily conferred. SCI Tex. Funeral Servs., Inc. v. Hijar, 214 S.W.3d 148,
153 (Tex. App.El Paso 2007, pet. denied).
4. The court must look to the substance of a motion or a pleading, rather than its
caption or format, to determine the nature of the filing. See State Bar of Tex.
v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (explaining that - we look to the
substance of a plea for relief to determine the nature of the pleading, not
merely at the form of title given to it).
5. During the pendency of an action involving title to real property, the
establishment of an interest in real property, or the enforcement of an
encumbrance against real property, a party seeking affirmative relief may
file a lis pendens in the real property records of the county where the
property is located. TEX. PROP. CODE ANN. 12.007(a) (Vernon 2004).
6. Generally speaking, the purpose of lis pendens notice is twofold: (1) to protect
the filing partys alleged rights to the property that is in dispute in the
lawsuit and (2) to put those interested in the property on notice of the
lawsuit. See World Sav. Bank, F.S.B. v. Gantt, 246 S.W.3d 299, 303 (Tex.
App.Houston [14th Dist.] 2008, no pet.); see also Countrywide Home
Page 11 Appeal Page 27
11. Standing focuses on the question of who may bring an action. Patterson v.
Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998). The general test for
standing is whether there is a real controversy between the parties that will
actually be determined by the judgment sought. Tex. Assn of Bus., 852
S.W.2d at 446. -To establish standing, a person must show a personal stake
in the controversy. In re B.I.V., 923 S.W.2d 573, 574 (Tex. 1996).
12. Standard of review: A plea to the jurisdiction challenges a trial courts
authority to decide a specific cause of action. See Texas Dept of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004).
Secured Party UCC
13. Whereas, approximately 3 years ago, the 141
st
Judicial District Court granted
Summary Judgment in favor of Wells Fargo Bank, N.A. [Exhibit B], two
facts are of court record. [In Re: James McGuire v. Wells Fargo Bank, N.A.,
141
st
District Court, Cause No. 141-223599-07], 1) A Lost Note Affidavit
[Exhibit C] was accepted by the court as substitution for the wet ink
negotiable instrument; 2) Federal National Mortgage Association was not
adjudicated as the owner of Appellants negotiable instrument and as such
could not ever become a subsequent secured party or beneficiary of a lien
securing such lost instrument.
a. Practice for lending monies to purchase real property requires a financial
instrument (note) to be executed as a promise for the borrower to repay the
Noteholder.
Page 13 Appeal Page 29
b. Parties to a note would be the maker (Payor, Obligor) making the instrument
payable to a Payee/Obligee
c. To protect and assure the Lender (Obligee, Secured Party, SP1 when the note is
secured by a lien) will be repaid, the Obligee noted on the face of the note
normally requires the Obligor to offer additional collateral (security) such as
attaching a Deed of Trust (lien) to the instrument thereby making the Obligee
the Original Secured Party (SP1) and thus you have the creation of a Secured
Note perfected in a Secured Partys name.
d. A Deed of Trust is that only of a lien providing security to a note.
e. The two principle parties appearing on a valid lien would be the Obligor as
noted on the face of the note (Grantor on the lien) and the Obligee as noted on
the face of the note would be the Original Secured Party [SP1} (Grantee on the
lien).
f. Where the note and lien are concurrently signed at closing, the lien would
attach to the note and temporary perfection of the lien would be perfected in
SP1s name according to law.
g. The lien is then required by law to be filed of public record resulting in
temporary perfection becoming a permanently perfected lien filed of record in
Secured Partys (SP1) name.
h. Note: Texas Recording Statutes do not require filing of record. Legal
requirement to file are noted under other state statutes.
i. As stated, Obligor of the note is identified within the lien as the Grantor and the
Obligee is noted to be the Grantee (Secured Party SP1).
j. To further market the Secured Note beyond origination, the Secured Note must
meet the requirements of being a negotiable instrument as defined by the UCC
or the states equivalence.
Page 14 Appeal Page 30
1
192.001. GENERAL ITEMS. The county clerk shall record each deed, mortgage, or other instrument that is
required or permitted by law to be recorded.
2
192.007. RECORDS OF RELEASES AND OTHER ACTIONS. (a) To release, transfer, assign, or take another
action relating to an instrument that is filed, registered, or recorded in the office of the county clerk, a person must
file, register, or record another instrument relating to the action in the same manner as the original instrument was
required to be filed, registered, or recorded.
Page 15 Appeal Page 31
3
11.001. PLACE OF RECORDING. (a) To be effectively recorded, an instrument relating to real property
must be eligible for recording and must be recorded in the county in which a part of the property is located.
any future assignment to convey lien rights from the second Party (P2) to
subsequent Purchasers 3, 4, etc would be void ab initio as the second Secured
Party (SP2) failed to comply with laws governing perfection and only
negotiated a unsecured note.
gg. As the Texas Property Code only provides who as an agent can execute legal
actions and when, other Texas laws proscribe that only a Secured Party filed of
record has any legal authority to invoke any power contained within a valid
lien.
hh. In todays mortgage world, the buying and selling of Mortgage Servicing it is
not uncommon, thus it would not be difficult to see a number of subsequent
Mortgage Servicers claiming to be the Mortgagee of a lien.
ii. Where a Mortgagee claims to be the Mortgagee of a lien, that claim lacks
sufficient legal definition to identify the Mortgagee as a Secured Party.
jj. Similarly, where a claim is made by one to be that of a subsequent Beneficiary
of a lien, that claim lacks sufficient legal definition to identify a claimed
subsequent Beneficiary is a Secured Party.
Equitable Legal Title
14. The court states in part; The only thing the Plaintiff has to show is color of
title. [RR,V2,pg 8, Line 13-14]
15. Appellee in submitting into evidence, Appellants Deed of Trust [RR,
Exhibit 1] notes ownership of equitable title was in the Appellant name and
owner of legal title by means of the Deed of Trust lien was not in Appellees
name.
16. The evidence submitted by Appellees clearly shows Appellant was the
equitable owner of title and Appellees now claim in this suit they are the
equitable owner of title. Whereas, it can be seen that Appellant and Appellee
Page 18 Appeal Page 34
21. Barrett Daffin Frappier Turner & Engel, LLP postal letter dated April 25,
2011 further confounds issue of title by claiming Federal National Mortgage
Association is the beneficiary named on the lien. This exhibit does not note
Appellant is a secured party of record. [RR, V3, Exhibit 3]
22. As the 141
st
District Court opined only a Lost Note Affidavit exists, it is a
legal impossibility that Wells Fargo Bank N.A. could have negotiated a non
negotiable Lost Note Affidavit to Federal National Mortgage Association
between March 7, 2011 and April 25, 2011 and filed of record a conveyance
of any rights to legal title to that of Federal National Mortgage Association
to allow Federal National Mortgage Association to be a Secured Party of
record..
23. Tarrant County public records reflect a filing of a Substitute Trustees Deed,
[RR, V3, Exhibit 2] by Appellee as an attempt to convey equitable title from
Appellant to Federal National Mortgage Association without any legal
authority to execute such conveyance of equitable title. As public records
reflect that Federal National Mortgage Association was not a secured party
of record, the Substitute Trustees Deed should be considered a wild deed
without force.
24. Tarrant County property records are devoid of any notice of an assignment
of lien Deed of Trust being timely assigned and perfected in Federal
National Mortgage Association name as to be a secured party to any
indebtedness.
Page 20 Appeal Page 36
SUMMATION
Federal National Mortgage Association filed with the trial court a claim to
possession of Appellants equitable rights to real property by executing a unlawful
legal title action by means of unlawfully filing a Substitute Trustees Deed
[Exhibit] in Tarrant County property records and whereas Wells Fargo Bank N.A.
in the Second Court of Appeals has made claim to legal title and whereas
Appellant has disputed both claims, a dispute of title exists between two parties
claiming legal title and the Appellant claims to equitable title. These title conflicts
alone would deny the justice court jurisdiction to determine who has the right to
immediate possession until issues of title, legal and equitable are resolved by a
court of competent jurisdiction.
A forcible detainer action is the procedure by which the right to immediate possession of real
property is determined. See Cattin v. Highpoint Village Apartments, 26 S.W.3d 737, 738-39
(Tex. App.Fort Worth 2000, pet. dismd w.o.j.). It is a special proceeding governed by
particular statutes and rules found in sections 24.001 to 24.011 of the Texas Property Code
and Texas Rules of Civil Procedure 738 to 755. See id. at 739. Forcible detainer actions are
intended to be a summary, speedy, and inexpensive remedy for resolving the question of who
is entitled to immediate possession of real property. See id.; see also Ward v. Malone, 115
S.W.3d 267, 270 (Tex. App.Corpus Christi 2003, pet. denied). Rule 746 provides that the
only issue shall be as to the right to actual possession [,] and the merits of the title shall not
be adjudicated. TEX. R. CIV. P. 746; Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.
Dallas 2001, no pet.). Thus, to prevail in a forcible detainer action, a plaintiff is not required
to prove title but is only required to show sufficient evidence of ownership to demonstrate a
superior right to immediate possession. See Ward, 115 S.W.3d at 270; Goggins v. Leo, 849
S.W.2d 373, 377 (Tex. App.Houston [14th Dist.] 1993, no writ).
Page 21 Appeal Page 37
Jurisdiction over a forcible detainer suit is given to a justice court in the precinct where the
property is located. TEX. PROP. CODE ANN. 24.004 (Vernon 2000); Aguilar v. Weber, 72
S.W.3d 729, 731 (Tex. App.Waco 2002, no pet.).
A court has jurisdiction over the subject matter of a claim only if the claimant has
standing to assert the claim. Joachim, 315 S.W.3d at 865. The issue of standing focuses
on whether a party has a sufficient relationship with the lawsuit so as to have a
justiciable interest in its outcome . . . . Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d
845, 848 (Tex. 2005).
A party filing a Forcible Detainer to obtain Immediate Possession is dependent
upon having standing under a Valid Substitutes Trustee Deed. Appellees counsel;
without a durable power of attorney which is required by TEX. PROB. CODE
ANN. 489
4
and Appellee was not a secured party of record and under this
premise lacked standing as a non interested party but was that of an intruder.
Herewith, Appellees counsel without a filed legal power of attorney of a perfected
secured party filed a null Substitutes Trustees Deed in Tarrant County public
records naming Appellees as equitable title owner. Normally, the filing of a
Substitutes Trustee Deed would provide standing for filing of a Forcible Detainer,
but not in this case, standing in this instant suit is dependent upon a provable claim
to legal title. Claim to legal title is currently being adjudicated in the Second Court
of Appeals, Tarrant County, Texas as Cause No. 02-11-00140-CV.
In a contract for purchase or a contract for deed, a forcible detainer action is dependent
on proof of a landlord-tenant relationship. Aguilar, 72 S.W.3d at 733; see Ward, 115
4
A durable power of attorney for a real property transaction requiring the execution and delivery of an instrument
that is to be recorded, including a release, assignment, satisfaction, mortgage, security agreement, deed of trust,
encumbrance, deed of conveyance, oil, gas, or other mineral lease, memorandum of a lease, lien, or other claim or
right to real property, shall be recorded in the office of the county clerk of the county in which the property is
located. TEX. PROB. CODE ANN. 489.
S.W.3d at 271.
Herein, the validity of legal title must be fully adjudicated, when on only when a
court of jurisdiction rules ownership of equitable title is in Appellees name, which
is impossible, could Appellee attempt to prove a landlord-tenant relationship and
then and only then would Appellee have standing to invoke the courts jurisdiction.
The issue of a durable power of attorney and the filing of a null Substitute
Trustees Deed is a subservient issue to standing and title dispute and would be
rendered a moot issue when a court(s) of jurisdiction fully adjudicates legal title.
Regardless of the durable power of attorney, until and unless the court(s) having
jurisdiction over title issues has ruled in Appellees favor, equitable title exists in
Appellees name, a court with limited jurisdiction without power to determine
legal or equitable title would be unable to determine immediate possession on a
Forcible Detainer action.
A justice court is expressly denied jurisdiction to determine or adjudicate title to land, as
is a county court-at-law on appeal of a forcible detainer action. See TEX. GOVT CODE
ANN. 27.031(b)(4) (Vernon 2004); Aguilar, 72 S.W.3d at 732.
This court should notice, not only is there one, but several issues of standing
that prohibits Appellee from invoking a courts limited jurisdiction. To
prevail in a forcible detainer action, a party is not required to prove title, but
is only required to show sufficient evidence of ownership to demonstrate a
superior right to immediate possession. Ward, 115 S.W.3d at 270. Herewith,
Appellee can only present a null Substitute Trustees Deed and in a more
Page 23 Appeal Page 39
PRAYER
For the foregoing reasons, Appellant prays that the Court finds that the lower
courts were without jurisdiction to render an order and issue any such other order
and equitable relief as the court deems appropriate in the best interest of justice.
Respectfully Submitted,
______________________________
James McGuire (Pro Se)
902 Rusk Drive
Euless, Texas 76039
(817) 420-4151
CERTIFICATION
I acknowledge that every factual statement in this petition is supported by
competent evidence included in the appendix or record.
James McGuire (Pro Se)
Appellant
CERTIFICATE OF CONFERENCE
Appellant and counsel for Appellee have personally conducted a conference at
which there was a substantive discussion and despite efforts no resolution was
obtainable.
Certified as to this _____ day of December 2011 by James McGuire/Appellant
Page 25 Appeal Page 41
CERTIFICATE OF SERVICE
I certify that on December ___, 2011 a true and correct copy of Appellants
Brief was served by U S Mail [Return Receipt] on Jana Ward Clarke, 1100 Oil &
Gas Building, 300 West Seventh Street, Fort Worth, Texas 76102.
James McGuire (Pro Se)
Page 26 Appeal Page 42
Befenuants 0iiginal Notion to Bismiss Page
CAUSE NO. F5506
FEDERAL NATIONAL MORTGAGE
ASSOCIATION A/K/A FANNIE MAE
Plaintiff,
V.
JAMES ALLEN MCGUIRE AND ALL
OTHER OCCUPANTS OF 902 RUSK
DRIVE, EULESS, TEXAS 76039
Defendants.
MOTION TO DISMISS
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES, Defendant, James Allen McGuire, in the above styled and numbered
cause and would show the Court the following:
I.
Defendant brings this cause as: Barrett Burke Frappier Turner & Engel, L.L.P. has not
since 2009 had an effective Power of Attorney on file in Public Records of Tarrant County to
represent Plaintiffs in any legal capacity. Barrett Burke Frappier Turner & Engel, L.L.P.,
filed a Forcible Detainer against Defendant without appropriate authority for Plaintiff, and
were without legal authority or standing to file a Forcible Detainer suit in this court.
II.
Page 27 Appeal Page 43
Befenuants 0iiginal Notion to Bismiss Page
Defendant attaches an online search of Tarrant County Public Records (Exhibit A).
The online search reveals all filed Power of Attorneys filed by FEDERAL NATIONAL
MORTGAGE ASSOCIATION A/K/A FANNIE MAE since 1999. Public records does reflect a
Power of Attorney filed as Instrument #D207418592 whereas FEDERAL NATIONAL
MORTGAGE ASSOCIATION A/K/A FANNIE MAE provides a General Power of Attorney
(Exhibit B) expiring January 1, 2009. Public records reveal not additional Power of Attorney filed
by Fannie Mae to note Barrett Burke Frappier Turner & Engel, L.L.P. is counsel of record.
III.
Plaintiff has more than one fatal issue that would disallow standing to invoke the
courts jurisdiction. This Motion to Dismiss is not meant to disallow Defendant from
presenting additional fatal issues that would also notice the court there is a lack of standing.
IV.
Defendant prays that this court will dismiss the suit for lack of standing. Award the
Defendant interim attorney fees in the Amount of $7,500, and any other equitable relief that
is available.
Respectfully submitted,
By:
James Allen McGuire
902 Rusk Drive
Euless, Texas 76039
817 420-4151
Pro Se
Page 28 Appeal Page 44
Befenuants 0iiginal Notion to Bismiss Page
CERTIFICATE OF SERVICE
I certify that on May 11, 2011 a true and correct copy of Defendants Memorandum in
Support was served by U S Mail on Lauren Christoffel, Bar I.D. # 24065045, 15000 Surveyor Blvd,
Suite #100, Addison, Texas 75001.
James Allen McGuire
Page 29 Appeal Page 45
Page 30 Appeal Page 46
Page 31 Appeal Page 47
Page 32 Appeal Page 48
Page 33 Appeal Page 49
Page 34
Appeal Page 50
Page 35
Appeal Page 51
Page 36
Appeal Page 52
Page 37
Appeal Page 53
Page 38
Appeal Page 54
Page 39
Appeal Page 55
Page 40
Appeal Page 56
Page 41
Appeal Page 57
Page 42
Appeal Page 58
Page 43
Appeal Page 59
Page 44
Appeal Page 60
MotionObjectiontoLateFilingofAppelleesObjection
NO. 02-11-00312-CV
IN THE
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
JAMES ALLEN MCGUIRE
Appellant
V
FEDERAL NATIONAL MORTGAGE ASSOCIATION A/K/A FANNIE MAE
Appellee,
APPELLANTS OBJECTION TO APPELLEES OBJECTION
TO CORRECT RECORDS
APPEAL FROM
Trial Court Cause NO: 2011-004521-1
IN THE County Court at Law #1, TARRANT COUNTY, TEXAS
James McGuire
902 Rusk Drive
Euless, Texas 76039
(817) 420-4151
Appeal Page 61
MotionObjectiontoLateFilingofAppelleesObjection
1. Appellants use of Texas Rules of Appellate Procedure 20.1 (e) is not
appropriate in their objection response dated December 29, 2011.
20.1 (e) Contest to Affidavit. The clerk, the court reporter, the court recorder, or
any party may challenge an affidavit that is not accompanied by a TAJF
certificate by filingin the court in which the affidavit was fileda contest to the
affidavit. The contest must be filed on or before the date set by the clerk if the
affidavit was filed in the appellate court, or within 10 days after the date when the
affidavit was filed if the affidavit was filed in the trial court.
The contest need not be sworn.
2. Whereas surgery that is not of an emergency, such surgery is usually an
elected action whereas counsel for Appellee failed to notice Appellant and
according to the courts docket failed to notice the court of being out of office.
3. If such medical was of an emergency that required unscheduled surgery,
such evidence should be presented to warrant Appellants late filing of objection to
Appellees Motion for Correct Records and acceptance.
PRAYER
For the foregoing reasons, Appellant prays that the Court overrules Appellees
Objection to Appellants Request for a True and Correct copy of the court record.
Respectfully Submitted,
______________________________
James McGuire (Pro Se)
902 Rusk Drive
Euless, Texas 76039
(817) 420-4151
Appeal Page 62
MotionObjectiontoLateFilingofAppelleesObjection
CERTIFICATE OF SERVICE
I certify that on December 31, 2011 a true and correct copy of Appellants
Objection to Apellees Objection Requesting True and Correct Copy of Records
was served by U S Mail on Jana Ward Clarke, 1100 Oil & Gas Building, 300 West
Seventh Street, Fort Worth, Texas 76102.
James McGuire (Pro Se)
Appeal Page 63
NO. 02-11-00312-CV
IN THE
SECOND COURT OF APPEALS
FORT WORTH, TEXAS
JAMES ALLEN MCGUIRE
Appellant
In Re: FEDERAL NATIONAL MORTGAGE ASSOCIATION A/K/A FANNIE
MAE
Appellee,
V.
JAMES ALLEN MCGUIRE AND ALL OTHER OCCUPANTS OF 902 RUSK
DRIVE, EULESS, TEXAS 76039
Appellant
APPELLANTS RESPONSE BRIEF
TO APPELLEES BRIEF
January 27, 2012
APPEAL FROM
CAUSE NO. 2011-004521-1
IN THE County Court at Law #1, TARRANT COUNTY, TEXAS
James McGuire
902 Rusk Drive
Euless, Texas 76039
(817) 420-4151
ORAL ARGUMENT REQUESTED
PAGE 1 Appeal Page 64
IDENTITY OF PARTIES AND COUNSEL
Appellant Counsel
JAMES ALLEN McGUIRE
Pro Se
902 Rusk Drive
Euless, Texas 76039
Appellee Counsel
FEDERAL NATIONAL MORTGAGE
ASSOCIATION A/K/A FANNIE MAE
Janna Ward Clarke, 1100 Oil & Gas Building,
309 West Seventh Street, Fort Worth, Texas
76102
County Court at Law #1:
Judge Don Pierson
100 West Weatherford Street, Room 409
Fort Worth, Texas 76196
MOTION TO DISMISS
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES, Defendant, James Allen McGuire, in the above styled and numbered
cause and would show the Court the following:
I.
Defendant brings this cause as: Barrett Burke Frappier Turner & Engel, L.L.P. has not
since 2009 had an effective Power of Attorney on file in Public Records of Tarrant County to
represent Plaintiffs in any legal capacity. Barrett Burke Frappier Turner & Engel, L.L.P.,
filed a Forcible Detainer against Defendant without appropriate authority for Plaintiff, and
were without legal authority or standing to file a Forcible Detainer suit in this court.
II.
Appeal Page 203
DefendantsOriginalMotiontoDismiss Page2
Defendant attaches an online search of Tarrant County Public Records (Exhibit A).
The online search reveals all filed Power of Attorneys filed by FEDERAL NATIONAL
MORTGAGE ASSOCIATION A/K/A FANNIE MAE since 1999. Public records does reflect a
Power of Attorney filed as Instrument #D207418592 whereas FEDERAL NATIONAL
MORTGAGE ASSOCIATION A/K/A FANNIE MAE provides a General Power of Attorney
(Exhibit B) expiring January 1, 2009. Public records reveal not additional Power of Attorney filed
by Fannie Mae to note Barrett Burke Frappier Turner & Engel, L.L.P. is counsel of record.
III.
Plaintiff has more than one fatal issue that would disallow standing to invoke the
courts jurisdiction. This Motion to Dismiss is not meant to disallow Defendant from
presenting additional fatal issues that would also notice the court there is a lack of standing.
IV.
Defendant prays that this court will dismiss the suit for lack of standing. Award the
Defendant interim attorney fees in the Amount of $7,500, and any other equitable relief that
is available.
Respectfully submitted,
By:
James Allen McGuire
902 Rusk Drive
Euless, Texas 76039
817 420-4151
Pro Se
Appeal Page 204
DefendantsOriginalMotiontoDismiss Page3
CERTIFICATE OF SERVICE
I certify that on May 11, 2011 a true and correct copy of Defendants Memorandum in
Support was served by U S Mail on Lauren Christoffel, Bar I.D. # 24065045, 15000 Surveyor Blvd,
Suite #100, Addison, Texas 75001.
James Allen McGuire
Appeal Page 205
Rule of appellate procedure 34.6(e)(1) and (2) provides that if there are
inaccuracies in the reporter's record, the parties may either correct the
inaccuracy by agreement or submit the disagreement to the trial court for
resolution after notice and hearing. See Tex. R. App. P. 34.6(e)(1), (2). Rule
34.6(e)(3) permits an appellate court, "jf the dispute [concerning the accuracy of
the reporter's record] arises after the reporter's record has been filed in the
appellate court, [to] submit the dispute to the trial court for resolution." Tex. R.
App. P. 34.6(e)(3). In his motion to correct the reporter's record,
1
Appellant
states: "Upon review of the Reporter's Record it was noticed that reference,
verbatim, 'closest thing I have to a colorable claim' is missing from the record.
[Page 8 of the Reporters Record, Approximately in the area of lines 17 to 22][.]"
In his appellate brief, however, Appellant contends in one issue that Appellee did
not have standing to invoke the trial court's jurisdiction. Thus, even taking the
statements in Appellant's motion as true, the allegedly missing statement relates
to Appellant's "colorable claim" and does not affect Appellee's standing in the trial
court. See generally Landry's Seafood House-Addison, Inc. v. Snadon, 233
S.W.3d 430, 437 (Tex. App.-Dallas 2007, pet. denied) (overruling issue
concerning missing testimony raised pursuant to rule 34.6(f) because missing
testimony did not relate to matters at issue in the appeal).
1Appellant actually filed a letter with this court dated December 11, 2011, and we
construed the letter as a motion to correct the reporter's record. [misc. file]
2
Appeal Page 207
Notice to 2
nd
Court of Appeal (Potential Record Tampering)
Debra Spisak, Clerk December 11, 2011
Second Court of Appeals
Tim Curry Criminal Justice Center
401 W. Belknap, Suite 9000
Fort Worth, Texas 76196
Re: No. 02-11-00140-CV
Trial Court 342-252174-11
Appellant is in receipt of the trial courts record.
Upon review of the Reporters Record it was noticed that reference, verbatim, closest thing I
have to a colorable claim is missing from the record. [Page 8 of the Reporters Record,
Approximately in the area of lines 17 to 22]
Appellant request that the court direct that the audio version of the hearing be placed under
appropriate custody for use at a later date and that the proper agencies are notified that there is a
possibility that court records have been tampered with.
Appellant will still prepare and submit Appellants Brief upon the records as provided by
December 22, 2011 and if it is proved of fact that the court records have been tampered with, the
Appellant would be offered the opportunity to amend the Appellants Brief based on a true and
correct copy of the record.
Appellant provides this advance notice to the 2
nd
Court of Appeals so evidence can be secured
before the offenders have received notice which will be contained in Appellants Brief.
Respectfully
James McGuire
902 Rusk Drive
Euless, Texas 76039
817 420-4151
Appeal Page 209
CAUSE NO. 2011-004521-1
FEDERAL NATIONAL
*
IN THE COUNTY COURT
MORTGAGE ASSOC.
*
VS.
*
AT LAW NO. 1
JAMES ALLEN MCGUIRE
*
AND ALL OCCUPANTS
*
TARRANT COUNTY, TEXAS
ORDER ON CONTEST TO AFFIDAVIT OF INABILITY TO PAY COSTS
On October 11,2011, this Court heard the contest to the affidavit ofJAMES ALLEN
MCGUIRE, Petitioner, of inability to pay costs in the above-numbered and entitled cause;
and Petitioner, appearing pro se, and the County Clerk, appearing by and through the Office
of the Criminal District Attorney, Tarrant County, Texas; and the Court having heard the
evidence and arguments, if any, is of the opinion and so finds that Petitioner HAS/-HAS
-
~ sustained his burden of proof that he is indigent.
IT IS THEREFORE ORDERED that the contest to the affidavit of inability to pay
costs is SUS'f1\:lNRB/ OVERRULED.
SIGNED on October 11,2011.
JUDGE PRESIDING
scANNEO
OC1 26 20U
Page 92
Appeal Page 210