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Click here for the full text of this decision FACTS:In 2001, Jack B. and Janice M. Kyle borrowed money from Countrywide Home Loans Inc. to buy a house in Rockwall. A lien on the house secured the loan. In 2003, the Kyles allegedly quit making payments on the loan. According to Countrywide, the Kyles or their representatives also filed documents in the county property records “that were part of a fraudulent mortgage elimination scheme.” Countrywide filed suit to foreclose its lien on the property and to expunge the claimed fraudulent property records. Countrywide also moved for summary judgment on its claims and submitted an affidavit from Countrywide’s custodian of records, along with other documents, as summary judgment evidence. The Kyles opposed the motion but did not submit any evidence in response to Countrywide’s motion. The trial court granted summary judgment in favor of Countrywide. The Kyles appealed that judgment. HOLDING:Affirmed. In their first issue, the Kyles argued that the affidavit of Countrywide’s custodian of records, Jehnesa Washington, was not competent summary judgment evidence. Specifically, the Kyles argued that Washington’s affidavit was defective, because it “was made by a person whose position and responsibilities with [a]ppellee were not clearly identified” and therefore that it did not satisfy the requirements of Texas Rule of Civil Procedure 166a(f). In support of their position, the Kyles cited the 1980 5th Court of Appeals case Brans v. Office Building Managers Inc., in which the 5th Court concluded that a company’s business records constituted inadmissible hearsay, because the witness who testified about those records did not testify that he was “”a custodian of records’ in order to dispense with the personal knowledge requirement” of the business-records exception to the hearsay rule. Unlike the witness in Brans, the court stated, Washington testified in her affidavit that she is both “the Foreclosure Specialist for Countrywide Home Loans, Inc.” and “the custodian of Movant’s [i.e., Countrywide's] records with respect to default servicing of the Mortgagors’ [i.e., the Kyles'] loan.” This statement, the court stated, sufficiently identified Washington’s position and responsibilities. The Kyles further contended that the Washington affidavit was defective under Texas Rule of Civil Procedure 166a(f), because the case caption at the top of the first page identified the case as pending in Dallas County instead of in Rockwall County, where the case was actually pending. The court found that this error made no difference. After dismissing several other challenges to the affidavit, the court concluded that Washington was qualified to attest to the Kyles’ default in her capacity as “the custodian of Movant’s [i.e., Countrywide's] records with respect to default servicing of the Mortgagors’ [i.e., the Kyles'] loan,” and that her affidavit was competent evidence of the Kyles’ undisputed default on their mortgage. In the Kyles’ second issue, they argued that summary judgment against them was improper, because the promissory note referred to in the deed of trust was not included among the summary judgment evidence. The express terms of the deed of trust, the court noted, gave Countrywide the right to seek judicial foreclosure in the event of a default. The trial court granted Countrywide’s motion, ordering judicial foreclosure on the deed of trust and removing any clouds on the title to the property. Under the facts of this case, the court found that the deed of trust and Washington’s testimony about the Kyle’s default was sufficient summary judgment evidence to entitle Countrywide to judgment as a matter of law on its claims against the Kyles. In their third issue, the Kyles argue that certain documents that were referred to and attached to the summary judgment order signed by the trial court were not properly authenticated or certified per Texas Rule of Evidence 803(8) or (14). The court stated that the trial court cited those documents in its summary judgment order as exemplars of fraudulent documents that the court ordered expunged from the property records to remove any improper cloud on the title created by the fraudulent filings. The Kyles cited no authority to support their argument that the trial court could not attach unauthenticated exemplars to its summary judgment order. OPINION:Lang-Miers, J.; O’Neill, Lang-Miers, and Mazzant, JJ.

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