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Alanis v. Wells Fargo Bank National Association

Court of Appeals of Texas, Fourth District, San Antonio

May 23, 2017

Nancy ALANIS, Appellant
v.
WELLS FARGO BANK NATIONAL ASSOCIATION, as Trustee for the Pooling and Servicing Agreement Dated as of Securitized Asset-Backed Receivables LLC Trust 2006-NC3 Mortgage Pass-Through Certificates Series 2006NC3, Homeq Servicing Corp. et al, Appellees

         From the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2011-CI-02839 Honorable Barbara Hanson Nellermoe, Judge Presiding

          ORDER

          Patricia O. Alvarez, Justice.

         On May 12, 2017, Appellant Nancy Alanis moved this court to judicially notice certain facts, see Tex. R. Evid. 201(b), which she divides into three categories.

         On May 18, 2017, Appellee Barclays Capital Real Estate Inc. filed a response which Appellees Wells Fargo Bank, National Association, as Trustee; Ocwen Loan Servicing, LLC; and Mackie Wolf Zientz & Mann, P.C. adopt in whole. See Tex. R. Evid. 201(e). Appellees oppose Appellant's motion.

         "[A] court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Tex. R. Evid. 201(b) (emphasis added); accord Office of Pub. Util. Counsel v. Pub. Util. Comm'n of Tex., 878 S.W.2d 598, 600 (Tex. 1994) (per curiam) ("To be the proper subject of judicial notice, a fact must be 'capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.'"); Camp Mystic, Inc. v. Eastland, 399 S.W.3d 266, 278 (Tex. App.-San Antonio 2012, no pet.) ("While a court may take judicial notice of the existence of the testimony in [a prior] trial, . . . a court may not take judicial notice of the truth of the factual content of that testimony because its accuracy can reasonably be questioned." (alterations in original) (quoting In re C.L., 304 S.W.3d 512, 515 (Tex. App.- Waco 2009, no pet.)); see also In re K.F., 402 S.W.3d 497, 505 (Tex. App.-Houston [14th Dist] 2013, pet. denied) (same); Jackson v. State, 139 S.W.3d 7, 21 (Tex. App.-Fort Worth 2004, pet. ref d) ("[W]hile a court may judicially notice the existence of the affidavit in its file, the court may not take judicial notice of the truth of the factual contents contained in such an affidavit because those facts are not the kinds of facts that a court may judicially notice.").

         We address each of Appellant's three requests.

         First, Appellant asks this court to judicially notice "record entries obtained from the public website of County Clerk & District Clerk Court Records Search of Gerard C Rickhoff and Donna Kay McKinney in Cause No. 2011-CI-02839" including the "timely notice(s) of appeal of trial orders before this court." Appellant then provides a summary of twenty-one orders she asserts are relevant and an Exhibit A, "Relevant Court Entries in Cause No. 2011-CI-02839."

         Volume 2 of the sixth supplemental clerk's record filed in this appeal contains the docket entries for trial court cause number 2011-CI-02839 and it has been certified by the Bexar County District Clerk. To the degree that Appellant asks this court to judicially notice docket entries that are already in the appellate record, her request is MOOT.

         On the other hand, Appellant's Exhibit A is an unofficial, unverified, incomplete list of docket entries Appellant asserts is derived from the entries in cause number 2011-CI-02839. Appellant's Exhibit A is not a document "whose accuracy cannot reasonably be questioned." Contra MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 484 n.7 (Tex. 2010). To the degree that Appellant asks this court to judicially notice Exhibit A, that request is DENIED. See id.

         Second, Appellant asks this court to judicially notice an interim cease and desist order issued by the Texas Department of Savings and Mortgage Lending on April 20, 2017, to Ocwen Financial Corporation. The order's contents include findings pertaining to facts that are in dispute in this appeal, and such findings are subject to reasonable dispute and are not appropriate to judicially notice. See Tex. R. Evid. 201(b); Camp Mystic, 399 S.W.3d at 278. Appellant's motion for this court to judicially notice the truth of the findings in the cease and desist order is DENIED.

         Third, Appellant asks this court to judicially notice a "timeline" that she prepared of alleged ex parte communications between opposing counsel and various trial court judges that have ruled on matters in the underlying cases. Appellant's timeline is not a document "whose accuracy cannot reasonably be questioned." Contra MCI Sales & Serv., 329 S.W.3d at 485. ...


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