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Allen v. Bank of America, N.A.

Court of Appeals of Texas, Second District, Fort Worth

March 1, 2018

ELFREDA CHERIE ALLEN APPELLANT
v.
BANK OF AMERICA, N.A. AND LENDER'S COMMERCIAL FINANCE, LLC APPELLEES

         FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 096-296504-17

          PANEL: SUDDERTH, C.J.; MEIER and PITTMAN, JJ.

          MEMORANDUM OPINION[1]

          PER CURIAM

         Appellant Elfreda Cherie Allen appeals the trial court's order sustaining the district clerk's contest of her statement of inability to afford payment of court costs and requiring her to pay court costs. See Tex. R. Civ. P. 145. We will affirm the trial court's order.

         Background

         Allen, appearing pro se, filed a statement of inability to afford payment of court costs in the proceedings below. Allen's statement reflected that she did not receive public benefits, had no sources of income, and owned no property of value. The statement included a declaration that the information provided was true and correct. The Tarrant County District Clerk filed a motion contesting Allen's inability to pay court costs and attached an affidavit by Roberta Jackson, the assistant manager of the civil/tax section of the district clerk's office. Jackson attested that Allen's statement was materially false because, at the time she completed the statement, Allen was the owner of $38, 338.98 on deposit in the registry of the court in cause number 236-B39393-09. According to Jackson, the money was the result of a sale of Allen's property after foreclosure by taxing authorities. Jackson also stated that she had discovered, through the Tarrant Appraisal District and Dallas Central Appraisal District websites, that Allen appeared to own several other properties located in Fort Worth and Desoto.

         The trial court held a hearing on January 3, 2018. The hearing was scheduled to begin at 3:00 p.m. At 3:40 p.m., the trial court noted on the record that Allen had not appeared and proceeded with the hearing. Counsel for the district clerk acknowledged that a letter had been sent to Allen on December 12, 2017, to notify her of the hearing setting and explained that Allen had responded to the letter that she "would not consent" to its service. The trial court found that Allen had received proper notice of the hearing.

         The trial court took judicial notice of the district clerk's motion and Jackson's affidavit and it granted the district clerk's motion. In its written order signed January 5, 2018, the trial court made the following findings:

• Allen failed to appear at the hearing although she was properly notified of the hearing date and time by the district clerk's office.
• Allen failed to meet her burden to prove her inability to afford court costs.
• Jackson's affidavit contained true and correct information within Jackson's personal knowledge, including the following:
o On July 26, 2016, Allen received notice of excess funds held in the registry of the 236th District Court;
o Jackson observed Allen at a hearing related to those excess proceeds on August 22, 2016; and
o There is a current balance of $38, 338.98 in the registry of the 236th District Court that would be available to ...

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