Allan R. Avery v. LLP Mortgage, Ltd.
01-14-01007-CV
| Tex. App. | Mar 6, 2015Background
- LPP Mortgage, Ltd. sued Allan R. Avery for breach of two promissory notes and related guaranties in Harris County, Texas (Cause No. 201165958).
- Avery answered with general and specific denials and raised verified defenses, disputing LPP’s capacity to sue and the authenticity/chain of title for the notes.
- LPP moved for summary judgment (second amended motion filed Jan. 15, 2014); Avery responded (Feb. 21, 2014), objecting to LPP’s summary-evidence affidavits and exhibits and arguing factual disputes.
- The trial court held a hearing (Feb. 27, 2014) and entered Final Summary Judgment for LPP on Sept. 30, 2014, awarding damages and attorney’s fees.
- Avery’s brief (this document) urges reversal, arguing the trial court erred by overruling objections to: (a) conclusory affidavits lacking personal knowledge or authentication; (b) exhibits produced late after discovery/compel orders (restated note allonges, powers of attorney); and (c) unauthenticated FDIC/receivership materials; and contends damages and fee awards lack competent evidentiary support.
Issues
| Issue | Plaintiff's Argument (Avery) | Defendant's Argument (LPP) | Held (trial court) |
|---|---|---|---|
| 1. Admissibility of LPP’s summary-evidence affidavits and exhibits | Affidavits contain conclusory statements, lack personal knowledge, and exhibits are unauthenticated; objections should have been sustained. | Affidavits/exhibits sufficed to authenticate records and establish facts supporting summary judgment. | Trial court overruled objections and considered the evidence. |
| 2. LPP’s capacity/chain of title to enforce the notes | Evidence fails to prove receivership of New South or unbroken chain of title to LPP; public/FDIC documents not properly authenticated. | LPP’s evidence establishes ownership/holder status and transfers needed to enforce the notes. | Trial court found LPP had capacity and granted summary judgment for LPP. |
| 3. Attorney’s fees award | LPP’s fee claim ($20,000) is a conclusory total with no hours, rates, or billing judgment—insufficient as a matter of law. | LPP presented affidavit evidence supporting its fee claim (trial court accepted it). | Trial court awarded attorney’s fees to LPP. |
| 4. Damages calculation (interest, late charges, costs) | LPP’s loan-history exhibit is inconsistent with the damages claimed in the summary-judgment motion and affidavit; key categories lack supporting documents. | LPP’s exhibits and affidavit adequately quantify damages. | Trial court awarded the damages claimed by LPP in the final judgment. |
Key Cases Cited
- Ryland Group, Inc. v. Hood, 924 S.W.2d 120 (Tex. 1996) (affidavits cannot rely on conclusory statements without factual support)
- Mercer v. Daoran Corp., 676 S.W.2d 580 (Tex. 1984) (best-evidence rule and requirement to produce original documents)
- Brownlee v. Brownlee, 665 S.W.2d 111 (Tex. 1984) (requirements for competent summary-judgment affidavits)
- Humphreys v. Caldwell, 888 S.W.2d 469 (Tex. 1994) (affiant’s personal knowledge and authority to authenticate evidence)
- Leavings v. Mills, 175 S.W.3d 301 (Tex. App.—Houston [1st Dist.] 2004) (assignee must show unbroken chain of title, including possession and indorsement)
- Al-Nayem Int’l Trading, Inc. v. Irving ISD, 159 S.W.3d 762 (Tex. App.—Dallas 2005) (public-record authentication and limitations on self-authentication)