cv312 fed appeal

8/2/2019 Cv312 Fed Appeal

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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

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IDENTITY OF PARTIES AND COUNSEL

Appellant Counsel

JAMES ALLEN McGUIREPro Se902 Rusk Drive

Euless, Texas 76039

Appellee Counsel

FEDERAL NATIONAL MORTGAGEASSOCIATION A/K/A FANNIE MAE

Janna Ward Clarke, 1100 Oil & Gas Building,309 West Seventh Street, Fort Worth, Texas76102

County Court at Law #1:

Judge Don Pierson

100 West Weatherford Street, Room 409

Fort Worth, Texas 76196

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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 141st Lost Note Affidavit Page 30 - 32

Exhibit C 141st 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

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INDEX OF AUTHORITIES

Texas Government Code 22.220


Texas Government Code 74.041-74.062

TEX. PROP. CODE ANN. 12.007(a) (Vernon 2004)

Texas Local Government Code 192.001


Texas Property Code 11.001




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

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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)

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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)


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)

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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.

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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?

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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

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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 Commnv. 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).

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Loans, Inc. v. Howard, 240 S.W.3d 1, 4 (Tex. App.Austin 2007, pet.

denied).

7. A lis pendens does not prevent conveyance; it merely puts the purchaser on

notice as to the status of the land. See Collins v. Tex Mall,L.P., 297 S.W.3d

409, 418 (Tex. App.Fort Worth 2009, no pet.) as such, Appellant did not

file such.

8. We may consider evidence that the parties have submitted and must do so

when necessary to resolve the jurisdictional issues. Bland Indep. Sch. Dist.

v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)

9. In a plea to the jurisdiction, a party may present evidence to negate the

existence of a jurisdictional fact alleged in the pleadings, which we would

otherwise presume to be true. Miranda, 133 S.W.3d at 227; see also Combs

v. Entertainment Publns, Inc., 292 S.W.3d 712, 719 (Tex. App.Austin

2009, no pet.).

10. The U.S. Constitution and the Texas Constitution require parties to have

standing to bring a claim in court, and the general test is whether there is a

controversy between the parties that will actually be determined by the

judicial declaration sought. 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).

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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 141st 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.,

141st 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.

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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 notenormally 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.

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k. Where Secured Party (SP1) elects to negotiate the Secured Note to a

subsequent Secured Party (SP2) under UCC or BCC, the Secured Party can

elect to sell the Secured Negotiable Note by indorsement or in blank.

l. Where the Secured Negotiable Note is sold and negotiated by Secured Party(SP1) by indorsement, the subsequent Secured Party purchaser (SP2) takes the

Secured Negotiable Note with the lien being temporary perfected in the

Secured Partys (SP2) name, the Secured Party owning such Secured

Negotiable Note identity would be known by completing the negotiation by

identifying itself (Secured Party - SP2) as the Indorsee.

m. Thusly, the Indorsee (Secured Party - SP2) now noted on the face of the

Secured Negotiable Note has also been conveyed lien rights in a temporary

perfected status.

n. Indorsee (Secured Party - SP2) under the Recording Statutes then may take the

legal steps to permanently perfect the liens conveyance in SP2s name by filing

of record. However, other state statutes mandate the assignment of the lien

must be filed of record.

o. However, if SP2 fails to timely file of record a conveyance of ownership right

to the lien to convert temporary perfection into a permanent perfection, the lienwould expire by operation of law. Failure to Permanently Perfect.

p. Herewith, the recording of an ownership interest in real property title is

required by Texas Local Government Code 192.001.1

q. Any change of ownership interest in real property title (legal or equitable)

requires notice of change of ownership interest to be filed of record per Texas

Local Government Code 192.007.2

1192.001. GENERAL ITEMS. The county clerk shall record each deed, mortgage, or other instrument that isrequired or permitted by law to be recorded.

2192.007. RECORDS OF RELEASES AND OTHER ACTIONS. (a) To release, transfer, assign, or take anotheraction 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.

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r. Additionally, to file an instrument of record, the instrument must be eligible for

recording as per Texas Property Code 11.001.3

s. Where an Indorsee (Subsequent Purchaser-Subsequent Secured Party) noted on

the face of the note fails to timely perfect the conveyance of the lien into theirname as a subsequent Secured Party, the lien would expire by operation of law.

t. Where there are multiple subsequent purchasers of a secured negotiable note,

each subsequent purchaser in turn, as Indorsee would need to file of record,

notice of conveyance of legal title to allow the secured negotiable note to

remain a Secured Note and perfected in each subsequent Secured Partys

(Subsequent Purchaser) name.

u. Where a party neither appears in the chain of the notes indorsements as

Obligee/Indorsee nor in the chain of title as a Secured Party/Grantee filed of

record, a filing of an instrument by a non Secured Party is only that of a wild

deed and would not create a colorable claim to title, legal or equitable.

v. As an execution of a Deed of Trust is action taken by the Obligor/Grantor in

granting collateral to a Secured Party, the Obligor/Grantor grants legal title to a

Trustee while Obligor retains equitable title to the real property. Equitable title

gives the Obligor the rights to enjoyment of the property.

w. Where a Grantor grants to a Trustee legal title to real property via a lien, a

Trustee is without legal capacity to act on any action affecting legal title except

for that of Secured Party filed of record.

x. As there are only three parties to a Deed of Trust, 1 [Grantor under the Deed of

Trust and Obligor under a Secured Note], 2 [Grantee under the Deed of Trust

and Obligee under a Secured Note] and the 3 [Trustee as noted on the face of

the Deed of Trust.] Therefore, names such as Mortgagee, MERS as

Nominee for Lender and Lenders Successors and Assigns and Beneficiary

could only be representative of a Secured Party of a perfected lien.

311.001. PLACE OF RECORDING. (a) To be effectively recorded, an instrument relating to real propertymust be eligible for recording and must be recorded in the county in which a part of the property is located.

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y. Where a Deed of Trust is lawfully conveyed by lawful negotiation of the

Secured Note, the Secured Party that was the Indorser of the Secured Note

should be noted in public records Grantor/Grantee indexing as the Assignor of

the lien.

z. The subsequent Indorsee which is the subsequent Secured Party would be noted

in Grantor/Grantee indexing as the Assignee.

aa. By reasons of logic and law, only a Secured Party being of that as the same

name as the Assignee filed of record could become the owner of lien rights

secured to the Secured Party if such lien is properly conveyed and subsequently

timely perfected in a subsequent purchasers (subsequent Secured Partys)

name.

bb. Where a note is secured by a perfected lien, such note would be considered to

be a Secured Note. Regardless of possession, only the owner of the Secured

Note as Secured Party filed of record would havr rights to enforce the Secured

Note. For a Secured Note, a Secured Partys right would extend to the security

(Deed of Trust - lien) securing the Secured Note if perfection remains valid.

cc. Where a Secured Note is to be sold by the original Obligee SP1 to a subsequent

purchaser Obligee SP2, the Secured Note must also meet the legal requirementsof the Texas Business and Commerce Code/UCC to be that of a Negotiable

Instrument.

dd. A Lost Note Affidavit does not meet the legal requirements of the Uniform

Commercial Code or the Texas Business and Commerce Code to be that of a

Negotiable Instrument.

ee. Under Texas law, to convey collateral (Deed of Trust lien) securing a Secured

Negotiable Note to a subsequent Secured Party requires perfection of the lien to

be filed of record in the subsequent purchasers name (SPx).

ff. Whereas if the second Secured Party (SP2) fails to timely permanently perfect a

conveyance of lien rights into the second Partys name (P2), the second Party

(P2) then fails to remain a Secured Party (SP) and where such status is void,

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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 Title14. 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

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have a dispute involving equitable title, a forcible detainer action must be

abated until issue of equitable title ownership has been resolved.

17. Under the principles of Nemo Dat, whereas a party is not a bona fide holder

of valid perfected legal title (lien holder) and not being a secured party of

record would not be able to convey a greater right to a subsequent party.

18. There is nothing filed of public record or submitted into court evidence that

would support ownership of legal title by virtue of the Deed of Trust was

ever conveyed to Appellee so as to become a secured party to any

indebtedness.

19. In Re: A Purported Lien or Claim Against James McGuire (Cause No. 02-

11-00140-CV, Court of Appeals, Second District of Texas), Wells Fargo

Banks, N.A. response filed of record as of July 6, 2011 with the Second

Court of Appeals claims Wells Fargo Bank, N.A. is the current owner and

holder of the lien documents,but there is no claim that Wells Fargo Bank,

N.A. was a secured party to an indebtedness. [Exhibit E]

20. Barrett Daffin Frappier Turner & Engel, LLP postal letter dated March

07,2011 claims that Wells Fargo Bank, N.A. is the Mortgagee of the lien

[Exhibit D], makes no claim as to be a secured party of record:

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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 141st 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.

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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 realproperty 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 requiredto 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).

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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 focuseson 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.3d845, 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. 4894 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.

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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, asis a county court-at-law on appeal of a forcible detainer action. See TEX. GOVT CODEANN. 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. Toprevail 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

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prominent position, a VOID Substitute Trustee Deed, if and when the

Second Court of Appeals rules and enters an opinion of legal title ownership,

this ownership would not be adjudicated in favor of the Appellee. Title

issues must be fully adjudicated before a limited courts jurisdiction can be

invoked by any party.

Title Was In Dispute and Appellee Lacked Standing

Appellee Was Not a Secured Party of Record and Lacked Standing

CONCLUSION

Federal National Mortgage Associations claims that an unproven Trustees Deed

is sufficient evidence to prove ownership of equitable title to obtain possession is a

falsehood. Federal National Mortgage Association does not have of record and

never can have of record in Tarrant County property records an assignment of legal

title from a previous secured party showing they are the current secured party with

legal rights or standing to invoke a courts jurisdiction. Whereas Federal National

Mortgage Association filed an ineligible instrument in violation of Texas Property

Code 11.001, this court must upon such finding must render the matter to the

proper law enforcement agency as being a possible violation of Chapter 32 of the

Texas Penal Code.

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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.


Appellant

CERTIFICATE OF CONFERENCE

Appellant and counsel for Appellee have personally conducted a conference atwhich there was a substantive discussion and despite efforts no resolution was

obtainable.

Certified as to this _____ day of December 2011 by James McGuire/Appellant

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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.


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CAUSE NO. F5506

FEDERAL NATIONAL MORTGAGE

ASSOCIATION A/K/A FANNIE MAE

Plaintiff,

V.

JAMES ALLEN MCGUIRE AND ALL

OTHER OCCUPANTS OF 902 RUSK


Defendants.

IN THE JUSTICE OF THE PEACE

COURT

PRECINCT NO. 3

TARRANT COUNTY, TEXAS

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.

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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 McGuire902 Rusk Drive

Euless, Texas 76039817 420-4151Pro Se

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I certify that on May 11, 2011 a true and correct copy of Defendants Memorandum inSupport was served by U S Mail on Lauren Christoffel, Bar I.D. # 24065045, 15000 Surveyor Blvd,Suite #100, Addison, Texas 75001.

James Allen McGuire

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MotionObjectiontoLateFilingofAppelleesObjection

NO. 02-11-00312-CV

IN THE


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


James McGuire902 Rusk Drive

Euless, Texas 76039

(817) 420-4151


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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, orany party may challenge an affidavit that is not accompanied by a TAJFcertificate by filingin the court in which the affidavit was fileda contest to theaffidavit. The contest must be filed on or before the date set by the clerk if theaffidavit was filed in the appellate court, or within 10 days after the date when theaffidavit 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.


______________________________


902 Rusk Drive

Euless, Texas 76039

(817) 420-4151


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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.



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NO. 02-11-00312-CV

IN THE


FORT WORTH, TEXAS

JAMES ALLEN MCGUIRE

Appellant

V

FEDERAL NATIONAL MORTGAGE ASSOCIATION A/K/A FANNIE MAE

Appellee,

APPELLANTS RESPONSE TO APPELLEES MOTION

TO STRIKE

APPEAL FROM

Trial Court Cause NO: 2011-004521-1


James McGuire902 Rusk Drive

Euless, Texas 76039

(817) 420-4151

Page 1


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Index of Authorities

Cases

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) Page 4

Texas Dept of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 Page 4

(Tex. 2004)

Combs v. Entertainment Publns, Inc., 292 S.W.3d 712, 719 Page 4

(Tex. App.Austin 2009, no pet.)

List of Parties and Counsel

Appellant James Allen McGuire (Pro Se)

817 420-4151

Appellee Federal National Mortgage Association

Counsel for Appellee Janna Clarke

State Bar Number 20844150

309 West Seventh Street

1100 Oil & Gas Building


817 335-1615

Fax 817 335-1603

Page 2


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Response to Motion to Strike

Appellant is arguing Standing and Jurisdiction in accordance to case law, as such,

Appellants introduction of evidence beyond the Clerk and Courts Record is

allowable, and therefore Appellants Reply Brief should be entered into the record.

Argument

Appellee on Page 6 of their Motion to Strike admitted not only did a Norwest

Mortgage, Inc to GE Mortgage Service, Inc dated June 1, 1995 assignment existed

but identified an assignment still unknown to Appellant from GE Capital Mortgage

Services, Inc to Wells Fargo Bank, N.A. dated May 27, 2005. This admission

provides additional prima facie proof that the Lost Note Affidavit filed in the 141 st

District Court was fraudulent and suggest the affiant committed perjury as such

Lost Note Affidavit relied upon the First Preference Mortgage Corporation

Services, Inc to Norwest Mortgage, Inc assignment dated June 1, 1995 as

supporting evidence of indebtedness. It is a legal impossibility to subsequently

negotiate a Lost Note Affidavit and where such evidence is noted to be that of the

GE Capital Mortgage Services, Inc to Wells Fargo Bank, N.A. assignment dated

May 27, 2005 could not represent a memorialization of a notes negotiation and it

is these facts that go to the heart of standing. Where a Note does not exist, no lien

can exist and no third party has standing in any court of law. When one applies

law, one needs to apply law to both the note and the lien in tandem. Appellees

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lack standing in both, the lack of a note and the lack of a valid assigned lien as

evidence must be entertained by this court as it dwells to the heart of standing and

jurisdiction.

We may consider evidence that the parties have submitted and must do so when

necessary to resolve the jurisdictional issues. Bland Indep. Sch. Dist. v. Blue, 34

S.W.3d 547, 555 (Tex. 2000)

In a plea to the jurisdiction, a party may present evidence to negate the existence of a

jurisdictional fact alleged in the pleadings, which we would otherwise presume to be

true. Miranda, 133 S.W.3d at 227; see also Combs v. Entertainment Publns, Inc., 292

S.W.3d 712, 719 (Tex. App.Austin 2009, no pet.).

Appellee on Page 6 of Appellees motion again provides a fact point for Appellant

to challenge Standing. Appellants brief noted Federal National Mortgage

Association claimed to be the Beneficiary of Appellants Deed of Trust in a letter

received from Barrett Daffin Frappier & Turner and Apellees brief and Appellees

motion again appears to argue Federal National Mortgage Association is only a

bona fide purchaser.

JUDICIAL NOTICE

It appears to be unusual as Appellee have only objected to admission of

Appellants Reply Brief containing one Exhibit to negate standing and did not

object to Appellants Amended Brief that contained many Exhibits to negate a

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claim of standing. It appears to Appellant that Appellees counsel is more

concerned with protecting BAR buddies as such evidence presented by

Appellee and additional evidence as identified would allow Appellee to file suit

upon the wrong doer who sold the property to Appellee. As Appellant is

allowed to enter evidence into the record to negate standing, Appellee has no

such legal recourse available to introduce evidence not entered into the trial

courts record and such action is exactly what Appellee did in Appellees

Motion to Strike.

PRAYER

For the foregoing reasons, Appellant request the Court deny Appellees Motion to

Strike.

Respectfully Submitted,______________________________


902 Rusk Drive

Euless, Texas 76039

(817) 420-4151


I certify that on February 5th, 2012 a true and correct copy of Appellants Response to

Motion to Strike was served by U S Mail on Jana Ward Clarke, 1100 Oil & Gas Building,

300 West Seventh Street, Fort Worth, Texas 76102.


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NO. 02-11-00312-CV

IN THE


FORT WORTH, TEXAS

JAMES ALLEN MCGUIRE

Appellant


MAE

Appellee,

V.JAMES ALLEN MCGUIRE AND ALL OTHER OCCUPANTS OF 902 RUSK


Appellant

APPELLANTS RESPONSE BRIEF

TO APPELLEES BRIEF

January 27, 2012

APPEAL FROM

CAUSE NO. 2011-004521-1


James McGuire

902 Rusk Drive

Euless, Texas 76039

(817) 420-4151


PAGE 1


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Appellant Counsel


Euless, Texas 76039

Appellee Counsel




Judge Don Pierson



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TABLE OF CONTENTS




CASES Page 5- 6

JURISDICTION Page 7

JUDICIAL NOTICE Page 7

REFERENCES Page 8


STATEMENT ON ORAL ARGUMENT Page 8



JURISDICTION


SUMMARY OF THE ARGUMENT Page 10

ARGUMENT Page 10-16

SUMMATION Page 16

CONCLUSION Page 16-17

PRAYER Page 17




APPENDIX

Exhibit A Norwest Assignment Page 19-20

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Texas Property Code






Texas Penal Code

Texas Local Government Code Chapter 193

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CASES

Tex. Natural Res. Conservation Commn v. ITDavy, 74 S.W.3d 849, 855 (Tex. 2002)





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.)


SCI Tex. Funeral Servs., Inc. v. Hijar, 214 S.W.3d 148, 153 (Tex. App.El Paso 2007,

pet. denied)


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.)


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)

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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)


Ward, 115 S.W.3d at 270

Goggins v. Leo, 849 S.W.2d 373, 377 (Tex. App.Houston [14th Dist.] 1993, no writ)




First Southern Properties, Inc. v. Vallone, 533 S.W.2d 339 (Tex. 1976)

Henke v. First Southern Properties, Inc., 586 S.W.2d 617 (Tex. Civ. App. Waco 1979,writ refused n.r.e.):

Fenley v. Ogletree, 277 S.W.2d 135, 141 (Tex. Civ. App. Beaumont 1955, writ ref'dn.r.e.)

Watkins v. Edwards, 23 Tex. 443, 448 (1859)

Madison v. Gordon, 39 S.W.3d 604 (Tex. 2001)

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ISSUE PRESENTED

Whether the trial court erred in incurring jurisdiction where Appellee lacked standing to

invoke the trial courts jurisdiction?

JURISDICTION



JUDICIAL NOTICE

Appellant was shocked and surprised in discovering an Assignment of Deed of Trust

from Norwest Mortgage Services, Inc to G E Capital Mortgages Services Inc., dated

December 5, 1995 filed in Tarrant County Public Records [Exhibit A] while awaiting

Apellees Brief is further evidence that Apellees lacked standing as a bona fide

purchaser to obtain a courts jurisdiction.

The discovery of this instrument filed of record is prima facie proof that the Lost Note

Affidavit filed in Cause No. 141-223599-07 [James McGuire v. Wells Fargo Bank, N.A.,

141st District Court] is a fraudulent filing in the 141st Court and fraudulent statements

have been provided to this court in Cause Number #02-11-00140-CV and this court

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should consider rendering these illegal actions to proper authorities for criminal warrants

to be considered and possible sanction violations against Wells Fargo Bank, N.A. and the

counsels of record, Richard Illmer, Bar ID# 24056116 and Elizabeth Bloch, Bar ID#

02495500 to preserve justice.

Appellant apologizes to this court for this unexpected surprise as such was a surprise

upon Appellant. Tarrant County Public Records indexes are based upon Grantor/Grantee

Indexing. The instrument uncovered was filed noting Norwest Mortgage Services, Inc

was the Grantor.

REFERENCES


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].


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.


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As Appellant has been surprised by recent uncovering unknown filed records and due to

the complexity involved, Appellant request that Oral Arguments be held so that

Appellant be allowed to explain in great detail how this unexpected filing affects this

instant suit.

ISSUE PRESENTED



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.


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.

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Appellant timely filed a notice of appeal with this court.


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.


existed and relied upon an ineligible instrument as being close enough colorable 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

Appellee are not factual.

ARGUMENT


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.


Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998). The general

PAGE 10


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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).

3. Standing to sue may be predicated upon either statutory or common law authority.


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. We may consider evidence that the parties have submitted and must do so when


S.W.3d 547, 555 (Tex. 2000)



otherwise presume to be true. Miranda, 133 S.W.3d at 227; see also Combs v.

Entertainment Publns, Inc., 292 S.W.3d 712, 719 (Tex. App.Austin 2009, no

pet.).

6. The U.S. Constitution and the Texas Constitution require parties to have standing

to bring a claim in court, and the general test is whether there is a controversy

between the parties that will actually be determined by the judicial declaration

sought. 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).

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actually be determined by the judgment sought. Tex. Assn of Bus., 852 S.W.2d at446. -To establish standing, a person must show a personal stake in the


8. 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).

9. InFirst Southern Properties, Inc. v. Vallone, 533 S.W.2d 339 (Tex. 1976), the Texas

Supreme Court confirmed that:

[A] a purchaser under a power at a foreclosure sale obtains only such title as to

trustee had authority to convey. 533 S.W.2d at 341.

Herein this instant suit, the trustee that executed the sale of Appellants real propertyhad no authority to convey title and any action executed by such trustee should be

noted as being Void and not Voidable.

As explained by the Court of Appeals in Henke v. First Southern Properties,

Inc., 586 S.W.2d 617 (Tex. Civ. App. Waco 1979, writ refused n.r.e.):

[T]he doctrine of good faith purchaser for value without notice does not

apply to a purchaser at a void foreclosure sale. One who bids upon

property at a foreclosure sale does so at his peril. If the trustee conducting

the sale has no power or authority to offer the property for sale, or if there

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is other defect or irregularity which would render the foreclosure sale

void, then the purchaser cannot acquire title to the property.

The general rule is that one claiming to be a good-faith purchaser has theburden of proof on that issue. Fenley v. Ogletree, 277 S.W.2d 135, 141

(Tex. Civ. App. Beaumont 1955, writ ref'd n.r.e.); Watkins v. Edwards, 23

Tex. 443, 448 (1859).

Bona Fide Purchaser

The most recent definition of the bona fide purchaser by the Texas Supreme Court is

found in Madison v. Gordon, 39 S.W.3d 604 (Tex. 2001), in which the Court considered

the issue of constructive notice arising from possession of the property by one other than

the seller. The Court in Madison v. Gordon held that a purchaser was not charged with a

duty to investigate possible ownership claims of a tenant who was in possession of one

unit in a four-plex multifamily apartment building. The Court stated:

Status as a bona fide purchaser is an affirmative defense to a title dispute. A bona

fide purchaser is not subject to certain claims or defenses. To receive this special

protection, one must acquire property in good faith, for value, andwithout notice

of any third-party claim or interest. Actual notice rests on personal information

or knowledge. Constructive notice is notice the law imputes to a person not having

personal information or knowledge.

10. Appellee, even though not clearing stating, appears to be arguing a bona fide

purchaser defense and thus cannot claim a bona fide purchaser defense as

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constructive notice was filed of record as evidenced by the filed Norwest

assignment.

11. Whereas, the 141st Judicial District Court granted Summary Judgment in favor of

Wells Fargo Bank, N.A., two facts are of court record. [In Re: James McGuire v.

Wells Fargo Bank, N.A., 141st

District Court, Cause No. 141-223599-07], 1) a

Lost Note Affidavit was accepted by the court as substitution for the wet ink

negotiable instrument and Wells Fargo Bank N.A. was the secured party and per

the recently uncovered filed instrument reflects the lien was assigned from Wells

Fargo Bank, N.A. to a third party a decade before such Lost Note Affidavit was

filed provides evidentiary proof that a fraudulent document was submitted to the

trial court. 2) Appellee was not adjudicated as the owner of Appellants negotiable

instrument nor the owner of the lien securing the note.

12. In Re: A Purported Lien or Claim Against James McGuire (Cause No. 02-11-

00140-CV, Court of Appeals, Second District of Texas), Wells Fargo Banks, N.A.

response filed of record as of July 6, 2011 with the Second Court of Appeals

claims Wells Fargo Bank, N.A. is the current owner and holder of the lien

documents, this could only be considered as fraudulent statement made to the

Second Court of Appeals. [Appellants First Amended Brief, Exhibit E]

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13. Barrett Daffin Frappier Turner & Engel, LLP postal letter dated March 07,2011

claims that Wells Fargo Bank, N.A. is the Mortgagee of the lien, Appelee makes

no claim as to being a secured party of record: [Appellants First Amended Brief,

Exhibit D]

14. 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

Appellee is a secured party of record. [RR, V3, Exhibit 3]

15. As the 141st

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.

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16. Tarrant County public records reflect a filing of a Substitute Trustees Deed, [RR,

V3, Exhibit 2 ] by a predecessor to Appellee as means to convey equitable title

from Appellant to a subsequent purchaser who in this case is Federal National

Mortgage Association (Appellee) without any legal authority to execute such

conveyance of title. As public records reflect that Federal National Mortgage

Association was not a secured party of record nor a lawful purchaser of a void

Trustees Deed, such Substitute Trustees Deed was nothing more than a wild

deed without force.

17. 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 so as to name Appellee as secured party to a indebtedness.

SUMMATION

Federal National Mortgage Association filed with the trial court a claim to possession of

Appellants equitable rights to real property by unlawful purchase of Appellants real

property by virtue of an unlawful use of void Substitute Trustees Deed in Tarrant County

property records. Additionally, Wells Fargo Bank N.A. in the Second Court of Appeals

has made claim to title and whereas Appellant has disputed both claims, a dispute of title

exists between all parties. Title issues alone would suffice to deny the justice court

jurisdiction to determine who has the right to immediate possession until all issues of title

are resolved by a court of competent jurisdiction.

CONCLUSION

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Federal National Mortgage Associations claims purchase of real property via unproven

Trustees Deed is sufficient evidence to prove ownership of equitable title to obtain

possession is a falsehood. Federal National Mortgage Association does not have of record

and never can have of record in Tarrant County property records a legal right to a lien nor

can they purchase the real property from a non valid third party.

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.

This court should look into the matter of fraudulent statements being made and filed into

the courts of Texas and take such action as required to prevent this absurd behavior.


______________________________


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.


Appellant

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CERTIFICATE OF CONFERENCE

Appellant attempted to contact counsel for Appellee and was unavailable.

Certified as to this 27th day of December 2011 by James McGuire/Appellant


I certify that on December 28th, 2011 a true and correct copy of Appellants Brief

was served by U S Mail on Jana Ward Clarke, 1100 Oil & Gas Building, 300 West

Seventh Street, Fort Worth, Texas 76102.


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NO. 02-11-00312-CV

IN THE


FORT WORTH, TEXAS

JAMES ALLEN MCGUIRE

Appellant


MAE

Appellee,

V.JAMES ALLEN MCGUIRE AND ALL OTHER OCCUPANTS OF 902 RUSK


Appellant

APPELLANTS REPLY BRIEF

TO APPELLEES BRIEF

January 27, 2012

APPEAL FROM

CAUSE NO. 2011-004521-1


James McGuire

902 Rusk Drive

Euless, Texas 76039

(817) 420-4151


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Appellant Counsel


Euless, Texas 76039

Appellee Counsel




Judge Don Pierson



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TABLE OF CONTENTS




CASES Page 5- 6

JURISDICTION Page 7

JUDICIAL NOTICE Page 7-8

REFERENCES Page 8


STATEMENT ON ORAL ARGUMENT Page 8-9



JURISDICTION


SUMMARY OF THE ARGUMENT Page 9-10

ARGUMENT Page 11-16

SUMMATION Page 16-17

CONCLUSION Page 17

PRAYER Page 17-18




APPENDIX

Exhibit A Norwest Assignment Page 19-20

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Texas Property Code






Texas Penal Code

Texas Local Government Code Chapter 193

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CASES

Tex. Natural Res. Conservation Commn v. ITDavy, 74 S.W.3d 849, 855 (Tex. 2002)





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.)


SCI Tex. Funeral Servs., Inc. v. Hijar, 214 S.W.3d 148, 153 (Tex. App.El Paso 2007,

pet. denied)


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.)


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)

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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)

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)


Ward, 115 S.W.3d at 270

Goggins v. Leo, 849 S.W.2d 373, 377 (Tex. App.Houston [14th Dist.] 1993, no writ)




First Southern Properties, Inc. v. Vallone, 533 S.W.2d 339 (Tex. 1976)

Henke v. First Southern Properties, Inc., 586 S.W.2d 617 (Tex. Civ. App. Waco 1979,writ refused n.r.e.):

Fenley v. Ogletree, 277 S.W.2d 135, 141 (Tex. Civ. App. Beaumont 1955, writ ref'dn.r.e.)

Watkins v. Edwards, 23 Tex. 443, 448 (1859)

Madison v. Gordon, 39 S.W.3d 604 (Tex. 2001)

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JURISDICTION



JUDICIAL NOTICE

Appellant was shocked and surprised in discovering this week an Assignment of Deed

of Trust from Norwest Mortgage Services, Inc to G E Capital Mortgages Services Inc.,

dated December 5, 1995 filed in Tarrant County Public Records [Exhibit A] an on

December 27, 2012 retrieved from public records such instrument is further evidence that

Apellees lacked standing as a bona fide purchaser to obtain a courts jurisdiction.

The discovery of this unknown instrument filed of record is prima facie proof that the

Lost Note Affidavit filed in Cause No. 141-223599-07 [James McGuire v. Wells Fargo

Bank, N.A., 141st District Court] is a fraudulent filing in the 141st Court and fraudulent

statements may have been provided to this court in Cause Number #02-11-00140-CV and

this court should consider rendering these illegal actions to proper authorities for criminal

warrants to be considered and possible sanction violations against Wells Fargo Bank,

N.A. and counsel of record, Richard Illmer, Bar ID# 24056116 to preserve justice.

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Appellant apologizes to this court for this unexpected surprise as such was a surprise

upon Appellant. Tarrant County Public Records indexes are based upon Grantor/Grantee

Indexing. The instrument uncovered was filed noting Norwest Mortgage Services, Inc

was the Grantor. Appellant has not addressed the validity of said surprise instrument as a

memorialization of an event that lawfully could not occur.

REFERENCES


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]. Appellant will cite by Exhibit Number

Exhibits contained within Appellants First Amended Brief.


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.


As Appellant has been surprised by recent uncovering unknown filed records and due to

the complexity involved, Appellant request Oral Argument of this court if required so

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that Appellant can explain in detail how this unexpected instrument affects this instant

suit.

ISSUE PRESENTED



STATEMENT OF FACTS

1. Federal National Mortgage Association purchased Appellants via an ineligible and

unlawful Substitute Trustees Deed (CR, p.7) that conveyed 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.


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 an opinion.

Appellant timely filed a notice of appeal with this court.


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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.


existed and relied upon an ineligible instrument as being close enough colorable 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

Appellee are not factual.

ARGUMENT


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.


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


446. To establish standing, a person must show a personal stake in the


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3. Standing to sue may be predicated upon either statutory or common law authority.


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. We may consider evidence that the parties have submitted and must do so when


S.W.3d 547, 555 (Tex. 2000)



otherwise presume to be true. Miranda, 133 S.W.3d at 227; see also Combs v.

Entertainment Publns, Inc., 292 S.W.3d 712, 719 (Tex. App.Austin 2009, no

pet.).

6. The U.S. Constitution and the Texas Constitution require parties to have standing

to bring a claim in court, and the general test is whether there is a controversy

between the parties that will actually be determined by the judicial declaration

sought. 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).





446. -To establish standing, a person must show a personal stake in the


8. 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).

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9. In First Southern Properties, Inc. v. Vallone, 533 S.W.2d 339 (Tex. 1976), the

Texas Supreme Court confirmed that:

[A] a purchaser under a power at a foreclosure sale obtains only such title

as to trustee had authority to convey. 533 S.W.2d at 341.

Herein this instant suit, the trustee that executed the sale of Appellants real property

had no authority to convey title and any action executed by such trustee should be

noted as being Void and not Voidable.

As explained by the Court of Appeals in Henke v. First Southern Propert

cv312 fed appeal

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