Motion To Vacate and Recall

B.
Argument and Authorities
7. Texas Rule of Appellate Procedure 56.1(b)(1) states that the notation “Denied”
shows that “the Supreme Court is not satisfied that the opinion of the court of appeals
has correctly declared the law in all respects”.
8. [T]he denial of a petition for review by the Texas Supreme Court does not
constitute a ruling on the merits of the case. Roberts v. Golden Crest Waters, Inc.,
1 S.W.3d 291, 293-94 (Tex. App. — Corpus Christi 1999, no pet.).
Sufficiency of Evidence That the Visiting Judge Lacked the Required Oath of Office
9. The sole issue brought to the Supreme Court was this court’s denial that the
certification by the Texas Secretary of State that a diligent search of the records of
that office failed to find an Oath of Office for the visiting judge for the court in which
he was exercising authority, is sufficient evidence to meet the burden of making a
prima facie showing that the trial judge did not take the required oaths on the basis
that such a denial goes against Texas Rule of Evidence 803(10).
10. The Supreme Court’s action in this matter is sufficient to show that this court
erred in its determination of the law of this case, and this court should issue a new
opinion that properly reflects the law for this case.
Summary Judgment Evidence Tainted
11. This Court’s opinion indicated that it accepted the evidence offered at trial for
summary judgment as sufficient. Murphy v. Countrywide Home Loans, Inc. 199
S.W.3d 441, 445 (Tex. App.— Houston [1st Dist.] 2006).
12. The Court’s opinion presumes that the evidence presented at trial was obtained
in a proper manner.
13. Appellant here shows that appellees used totally inappropriate methods to
obtain the records used for evidence in the trail court.
2
14. Appellant attaches to this motion an affidavit identifying copies of sworn
criminal complaints to establish facts that are not included in the appellate record and
are not known to the Court in its official capacity. Tex. R. App. P. 10.2.
15. The original complaints are with the office of the Criminal District Attorney of
Galveston County, Kathleen Marx-Sharp, Section Chief, Grand Jury, Galveston
County Criminal Justice Center, 600 59th Street, Suite 1001, Galveston, Texas
77551-4137, tel. 409-766-2355, pending action by the grand jury.
16. This Court should reject the evidence used by appellees in the trial court.
C. Conclusion
17. In the 1876 formative period of the present Texas Constitution, the Granger led
convention affirmatively recognized that the courts of this state were “almost holy” – that is
to say that their regard, respect and integrity were beyond reproach. However this court has
received tainted evidence, has misapplied the rule of law and rendered an opinion that
offends justice and the rule of right.
18. Countrywide has repeatedly demonstrated itself to be a criminal enterprise – engaged,

inter alia, in the theft of hundreds of citizen’s homes in Texas alone. The judge in the trial
court below has failed utterly to meet the oath requirements that are fundamental to its
jurisdiction to rule in this or any case. Further, Countrywide appears before this court with
unclean hands having as a matter of record breached the fundamental rules of equity.
19. These facts and circumstances require reversal of the court of appeals opinion in this
case. This court cannot let justice be denied and the rule of right to be eviscerated from this
case. Recall of this court’s mandate and reversal of the Appellate court’s opinion is the only
manner in which justice and the rule of right may vindicate the rule of law in this case.
20. Appellant has shown the Court that the Supreme Court of Texas has shown its
dissatisfaction with the declaration of the law made by this court in the opinion issued
for this case, and the Court should issue a new opinion that correctly states the law.
Further Appellant has shown that the evidence presented by appellees in the trial court
was generated in an unlawful manner and should be disregarded.
3
Sylvia Loredo (Charge 1 of 4) –– Aggravated Perjury p. 1 of 5
IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:
I, Danny Royce Murphy, being duly sworn, do state upon my oath that I have
personal knowledge and good reason to believe and do believe based upon the
following information, most of which is evident in records held by the District
Clerk of Galveston County in the file for cause number 02CV0624, Danny Royce
Murphy v. Countrywide Home Loans, Inc., et. al.:
In order to stop a planned non-judicial foreclosure action against my home by

Countrywide Home Loans, Inc., I brought suit against Countrywide and the
substitute trustee for the foreclosure action, Samuel Daffin, II, in the 405th District
Court of Galveston County in May of 2002. Wayne J. Mallia was the regularly
sitting judge in the 405th District Court.
While this suit was ongoing and in connection with a foreclosure sale of the
property, Sylvia Loredo signed an Affidavit of Mortgagee and had it notarized on
October 1, 2002 in Dallas County, Texas. Ms. Loredo caused the Affidavit of
Mortgagee to be filed and recorded into the Official Public Records of Real
Property of Galveston County on October 7, 2002. A copy of this Affidavit of
Mortgagee was attached to and used as evidence for Defendant’s Amended Motion
for Summary Judgment as to Possession, and this motion was filed with the District
Clerk of Galveston County, file stamp 04 JAN –8.
This Affidavit of Mortgagee indicated that Ms. Loredo was an employee of

BARRETT BURKE WILSON CASTLE DAFFIN & FRAPPIER, L.L.P., attorney
for COUNTRYWIDE HOME LOANS, INC., that the affidavit was made with
respect to the foreclosure of that certain Deed of Trust dated December 16, 1997,
recorded CLERK’S FILE NO. 9748599, Real Property Records, GALVESTON
County, TEXAS … to secure payment of a Note to COUNTRYWIDE HOME
LOANS, INC., that COUNTRYWIDE HOME LOANS, INC. was the holder of the
debt or agent for the holder of the indebtedness secured by the Deed of Trust, and
“At the instructions and on behalf of the holder of the debt or its agent” certain acts
were performed as required by law.
Ms. Loredo knew that she did not know certain material facts stated in the affidavit
were true. The primary material fact falsely stated and without any reservation or
qualification was that Countrywide was the holder of the debt or agent for the
holder of the indebtedness secured by the Deed of Trust.
During the discovery process of the lawsuit, I was provided copies of documents that
showed that, years prior to the foreclosure sale, Countrywide had given up
ownership and possession of the note upon which it supposedly based its right to
foreclose to recover amounts still owed to it. At the offices of LEYH & PAYNE,
L.L.P., I was provided with a copy of the note displaying an endorsement signed by
an officer of Countrywide and a letter dated 12/18/97 stating that the Note was
enclosed with the letter and that the original note had been “endorsed in blank”.
This letter was addressed to First Chicago National Processing Corporation in
Pasadena, California. A copy of the endorsed note and letter are attached to
Plaintiff’s Second Amended Petition, file stamped 02 NOV 19. In endorsing the
note and delivering possession of it to another, Countrywide gave up all rights it had
in the note and deed of trust.
During the course of the Lawsuit, Countrywide never provided any documentation
or even an assertion to show that it was acting as an agent for any other entity.
Ms. Loredo could not possibly have received any documentation sufficient to show
the truthfulness of statements that she made in the Affidavit of Mortgagee.
False statements of material facts knowingly made by Ms. Loredo in the Affidavit of
Mortgagee were made in connection with the official proceeding of the foreclosure
sale and constitute a violation of Section 37.03 Texas Penal Code:
§37.02 Perjury
(a) A person commits an offense if, with intent to deceive and with
knowledge of the statement's meaning:
(1) he makes a false statement under oath or swears to the truth of a

false statement previously made and the statement is required or
authorized by law to be made under oath; or
(2) he makes a false unsworn declaration under Chapter 132, Civil

Practice and Remedies Code.
(b) An offense under this section is a Class A misdemeanor.
§37.03 Aggravated Perjury
(a) A person commits an offense if he commits perjury as defined in Section

37.02, and the false statement:
(1) is made during or in connection with an official proceeding; and
(2) is material.
(b) An offense under this section is a felony of the third degree.
Ms. Loredo stated in the affidavit that the affidavit was being made with respect to
the foreclosure that was taking place, showing that she knew that an official
proceeding was pending or taking place. She made the Affidavit of Mortgagee with
knowledge of its falsity and with intent to affect the course or outcome of the
foreclosure process in violation of Section 37.09 Texas Penal Code:
§37.09 Tampering With or Fabricating Physical Evidence
(a) A person commits an offense if, knowing that an investigation or official

proceeding is pending or in progress, he:
(1) alters, destroys, or conceals any record, document, or thing with

intent to impair its verity, legibility, or availability as evidence in the
investigation or official proceeding; or
(2) makes, presents, or uses any record, document, or thing with

investigation or official proceeding.
(b) This section shall not apply if the record, document, or thing concealed is
privileged or is the work product of the parties to the investigation or official
proceeding.
(c) An offense under Subsection (a) or Subsection (d)(1) is a felony of the

third degree. An offense under Subsection (d)(2) is a Class A misdemeanor.
(d) …[Not applicable to this complaint]
Ms. Loredo made the Affidavit of Mortgagee, with knowledge of its falsity, and
caused it to be filed and recorded into the governmental records held by the County
Clerk of Galveston County in violation of Section 37.10 Texas Penal Code:
§37.10. Tampering With Governmental Record.
(a) A person commits an offense if he:
(1) knowingly makes a false entry in, or false alteration of, a

governmental record;

knowledge of its falsity and with intent that it be taken as a genuine
(3) intentionally destroys, conceals, removes, or otherwise impairs the

verity, legibility, or availability of a governmental record;
(4) possesses, sells, or offers to sell a governmental record or a blank

governmental record form with intent that it be used unlawfully;
(5) makes, presents, or uses a governmental record with knowledge of its

falsity;
Ms. Loredo carried out her acts of aggravated perjury, fabrication of evidence, and
tampering with governmental records in agreement with and with aid of others in
violation of Section 15.02 Texas Penal Code:
§15.02. Criminal Conspiracy.
(a) A person commits criminal conspiracy if, with intent that a felony be
committed:
(1) he agrees with one or more persons that they or one or more of them
engage in conduct that would constitute the offense; and
(2) he or one or more of them performs an overt act in pursuance of the

agreement.
(b) An agreement constituting a conspiracy may be inferred from acts of the

parties
...
Ms. Loredo’s choice to join with others in the furtherance of the conspiracy makes
her culpable for her own acts and those of her co-conspirators,
§7.01 Texas Penal Code, Parties to offenses:
(a) A person is criminally responsible as a party to an offense if the

offense is committed by his own conduct, by the conduct of another
for which he is criminally responsible, or by both.
(b) Each party to an offense may be charged with commission of the

offense.
(c) All traditional distinctions between accomplices and principals are

abolished by this section, and each party to an offense maybe charged
and convicted without alleging that he acted as a principal or
accomplice.
Samuel Daffin, II (Charge 1 of 4) –– Misapplication of Fiduciary Property p. 1 of 6

While this suit was ongoing, Samuel Daffin, II, conducted a supposed foreclosure
sale of the property in the lobby of the Galveston County Courthouse on October 1,
2002. He signed a Substitute Trustee’s Deed and had it notarized on October 1,
2002 in Harris County, Texas. Mr. Daffin caused the Substitute Trustee’s Deed to
be filed and recorded into the Official Public Records of Real Property of Galveston
County on October 7, 2002. A copy of this Substitute Trustee’s Deed was attached
to and used as evidence for Defendant’s Amended Motion for Summary Judgment
as to Possession, and this motion was filed with the District Clerk of Galveston
County, file stamp 04 JAN –8.
This substitute trustee’s deed indicated that the property had been sold on October
1, 2002 to Federal Home Loan Mortgage Corporation for an amount of $60,300.00,
that the Grantors were Danny R. Murphy and Sandra G. Cruz, and that the
Current Beneficiary was Countrywide Home Loans, Inc. The body of the substitute
trustee’s deed indicated that the Beneficiary had declared that Grantor defaulted
performing the obligations of the Deed of Trust, that all duties and obligations of
the Beneficiary were lawfully performed, and that the Substitute Trustee acted
under the authority conferred by the Current Beneficiary and the Deed of Trust.
Mr. Daffin knew that material facts stated in the Substitute Trustee’s Deed were
false. The primary material fact falsely stated was that the Current Beneficiary was
Countrywide Home Loans, Inc., and second that the Substitute Trustee acted under
the authority conferred by the Current Beneficiary and the Deed of Trust.
foreclose to recover amounts still owed to it. Mr. Daffin’s attorneys, LEYH &
PAYNE, L.L.P., provided me with a copy of the note displaying an endorsement

signed by an officer of Countrywide and a letter dated 12/18/97 stating that the Note
was enclosed with the letter and that the original note had been “endorsed in
blank”. This letter was addressed to First Chicago National Processing Corporation
in Pasadena, California. A copy of this endorsed note and letter can be found as
attachments to Plaintiff’s Second Amended Petition, file stamped 02 NOV 19. In
endorsing the note and delivering possession of it to another, Countrywide gave up
all rights it had in the note and deed of trust.
Mr. Daffin was an attorney and, as such, is presumed to have been knowledgeable in
the law, and he regularly acted in the capacity of a substitute trustee in foreclosure
actions. Since Countrywide had given up the note years prior to Mr. Daffin
conducting the foreclosure sale and making the Substitute Trustee’s Deed, Mr.
Daffin could not possibly have found documentation sufficient to support his
statement that Countrywide was the Current Beneficiary or that he had conducted
the foreclosure sale “by authority conferred by the Current Beneficiary and by the
Deed of Trust.”
Mr. Daffin had a fiduciary responsibility as a trustee to insure that the property
entrusted to him was dealt with in the manner prescribed by the Deed of Trust. The
acts of Mr. Daffin were done in a manner contrary to the agreed Deed of Trust, and
he intentionally, knowingly, or recklessly misapplied the property that he held as a
fiduciary in a manner that involved substantial risk of loss to the owner of the
property, in violation of Texas Penal Code §32.45:
§32.45 Misapplication of Fiduciary Property or Property of Financial Institution
(a) For purposes of this section:
(1) "Fiduciary" includes:
(A) trustee, guardian, administrator, executor, conservator, and

receiver;
...
(2) "Misapply" means deal with property contrary to:
(A) an agreement under which the fiduciary holds the property; or
(B) a law prescribing the custody or disposition of the property.
(b) A person commits an offense if he intentionally, knowingly, or recklessly

misapplies property he holds as a fiduciary or property of a financial
institution in a manner that involves substantial risk of loss to the owner
of the property or to a person for whose benefit the property is held.
(c) An offense under this section is:

(1) Class C misdemeanor if the value of the property misapplied is less

than $20;
...
(5) felony of the third degree if the value of the property misapplied is
$20,000 or more but less than $100,000;
...
Mr. Daffin was a defendant in the lawsuit and knew that the lawsuit was an official
proceeding in progress, and he made the Substitute Trustee’s Deed with knowledge
of its falsity and with intent to affect the course or outcome of the lawsuit in
violation of Texas Penal Code §37.09:



proceeding.

Mr. Daffin made the Substitute Trustee’s Deed, with knowledge of its falsity, and






falsity;
Mr. Daffin carried out his acts of misapplication of fiduciary property, fabrication
of evidence, and tampering with governmental records in agreement with and with
aid of others in violation of Texas Penal Code §15.02:
committed:

agreement.

parties
...
Mr. Daffin’s choice to join with others in the furtherance of the conspiracy makes
him culpable for his own acts and those of his co-conspirators,

_________, 2006.
Griffin Pivateau Burke (Charge 1 of 3) –– Tampering With or Fabricating Physical Evidence p. 1 of 4

Countyrwide Home Loans, Inc., I brought suit against Countrywide and the
A hearing was set in the 405th District Court to be heard on March 20, 2003 on
Defendant’s No-Evidence Motion for Summary Judgment, file stamped 03 JAN 30,
which was prepared by Defendants’ attorney’s law firm, LAYH & PAYNE, L.L.P.,
and personally signed by attorney Griffin Pivateau Burke, Texas Bar No. 16055950.
Attached to this motion was an affidavit by Diane DeLoney, in which she states that
she was the “custodian of Countrywide’s records” and in which she states, without
reservation or qualification, on the second page of the affidavit that “Countrywide
is the Owner and Holder of the Note and Deed of Trust.”
More than two months prior to Defendant’s No-Evidence Motion for Summary
Judgment being filed with the court, I filed with the court and provided a copy to
Mr. Burke of Plaintiff’s Second Amended Petition, file stamped 02 NOV 19.
Attached to this petition was a copy of the Note referred to in the DeLoney affidavit
displaying an endorsement signed by an officer of Countrywide and a letter dated
12/18/97 stating that the Note was enclosed with the letter and that the original note
had been “endorsed in blank”. This letter was addressed to First Chicago National
Processing Corporation in Pasadena, California. In endorsing the note and
delivering possession of it to another entity, Countrywide gave up all rights it had in
the note and deed of trust. The endorsed note and letter show that material
statements made in the DeLoney affidavit were false. The copy of the note attached
to the DeLoney affidavit does not show this endorsement, but the copy attached to
petition filed on November 19, 2002 does.
Further I obtained copies of the endorsed note and this letter from the law firm of
LAYH & PAYNE, L.L.P. I was personally handed the file containing these
documents by Mr. Burke at the offices of LAYH & PAYNE, L.L.P. These
documents were being provided to me as part of the discovery process of the
lawsuit.
Mr. Burke was provided actual knowledge of the falsity of the DeLoney affidavit.
Copies of the endorsed note and the letter were readily available to him in files kept
at the offices of LAYH & PAYNE, L.L.P.; he was provided another copy of the
endorsed note and letter as attachments to Plaintiff’s Second Amended Petition;
discrepancies with the copy of the note previously provided to the court by Mr.
Burke were pointed out in paragraph 8 of this petition; and the significance of the
endorsed note and letter were pointed out in paragraph 27 of this petition. In spite
of this, Mr. Burke still brought the DeLoney affidavit to court again to use as
evidence in asserting claims in the lawsuit.
Mr. Burke knew that the lawsuit was an official proceeding in progress, and he
presented the DeLoney affidavit with knowledge of its falsity and with intent to
affect the course or outcome of the lawsuit in violation of Texas Penal Code §37.09:



proceeding.

Having knowledge that his client lacked the original note, Mr. Burke knew that his
client did not have a valid claim to collect on the note and foreclose on the security
named in the deed of trust. Mr. Burke still filed a claim into court against the
property and me knowing that the claim of his client was baseless, frivolous, and
without authority and that he was therefore acting without authority when he filed
Defendant’s First Amended Original Counterclaim, file stamped 02 DEC –9, in
§38.12 Barratry and Solicitation of Professional Employment
(a) A person commits an offense if, with intent to obtain an economic benefit
the person:
(1) knowingly institutes a suit or claim that the person has not been
authorized to pursue;
...
(f) An offense under Subsection (a) or (b) is a felony of the third degree.
… [Remainder of §38.12 not relevant to this complaint]
Mr. Burke carried out his acts of fabrication of evidence and barratry in agreement
with and with aid of others in violation of Texas Penal Code §15.02:
committed:

agreement.

parties
Mr. Burke’s choice to join with others in the furtherance of the conspiracy makes


offense.
Steven A. Leyh (Charge 1 of 4) –– Tampering With or Fabricating Physical Evidence p. 1 of 6

Steven A. Leyh, Texas Bar No. 12318300, of LEYH & PAYNE, L.L.P., attorneys for
defendants, signed Defendant’s Amended Motion for Summary Judgment as to
Possession, and this motion was filed with the District Clerk of Galveston County,
file stamp 04 JAN –8. Attached to this motion and referred to as summary
judgment evidence on page 3 of the motion was a copy of a Substitute Trustee’s
Deed.
1, 2002 to Federal Home Loan Mortgage Corporation, that the Grantors were
Danny R. Murphy and Sandra G. Cruz, and that the Current Beneficiary was
Countrywide Home Loans, Inc. The body of the substitute trustee’s deed indicated
that the Beneficiary had declared that Grantor defaulted performing the obligations
of the Deed of Trust, that all duties and obligations of the Beneficiary were lawfully
performed, and that the Substitute Trustee acted under the authority conferred by
the Current Beneficiary and the Deed of Trust.
Also attached to Defendant’s Amended Motion for Summary Judgment as to

Possession was an Affidavit of Mortgagee. This affidavit stated that Countrywide
Home Loans, Inc. was “the holder of the debt or agent for the holder of the
indebtedness secured by the Deed of Trust”. This affidavit also stated that “at the
instructions and on behalf of the holder of the debt or its agent” certain necessary
actions had been taken.
Mr. Leyh knew that material facts stated in the Substitute Trustee’s Deed and the
Affidavit of Mortgagee were false. The material facts falsely stated in these
documents were that the Current Beneficiary was Countrywide Home Loans, Inc.
and that Countrywide Home Loans, Inc. was “the holder of the debt or agent for
the holder of the indebtedness secured by the Deed of Trust”.
Documents made available to Mr. Leyh and filed into court more than a year prior
to his filing of Defendant’s Amended Motion for Summary Judgment as to
Possession provided him the knowledge that Countrywide had endorsed the note
and transferred possession of it to another, and, thereby, it gave up all rights that it
had in the note and the deed of trust. I filed with the court and provided a copy to
another attorney in Mr. Leyh’s law firm of Plaintiff’s Second Amended Petition, file
stamped 02 NOV 19. Attached to this petition was a copy of the Note displaying an
endorsement signed by an officer of Countrywide and a letter dated 12/18/97 stating
that the Note was enclosed with the letter and that the original note had been
“endorsed in blank”. This letter was addressed to First Chicago National
delivering possession of it to another, Countrywide gave up all rights it had in the
note and deed of trust. Copies of the Note previously submitted to court by
Countrywide did not display this endorsement.
Additionally, I provided a copy of the endorsed note and the letter to Mr. Leyh as
attachments to my Plaintiff’s Answer to Defendant’s Amended Motion for
Summary Judgment as to Possession, file stamped 04 JAN 23. Also, Mr. Leyh was
present when a copy of the endorsed note and the letter was entered into evidence in
open court on or about December 22, 2003. The issue of Countrywide’s lack of
ownership of the note upon which it was taking action to collect was brought up to
Mr. Leyh several times during the year 2003.
I obtained copies of the endorsed note and this letter from the law firm of LAYH &
PAYNE, L.L.P. I was handed the file containing these documents at the offices of
LAYH & PAYNE, L.L.P. These documents were provided to me as part of the
discovery process of the lawsuit.
Mr. Leyh was provided actual knowledge of the falsity of the Substitute Trustee’s
Deed and the Affidavit of Mortgagee. Copies of the endorsed note and the letter
were readily available to him in files kept at the offices of LEYH & PAYNE, L.L.P.;
he had available to him another copy of the endorsed note and letter as attachments
to Plaintiff’s Second Amended Petition; discrepancies with the copy of the note
previously provided to the court by Mr. Leyh’s law firm were pointed out in
paragraph 8 of this petition; and the significance of the endorsed note and letter
were pointed out in paragraph 27 of this petition. In spite of this, Mr. Leyh still
brought the Substitute Trustee’s Deed and the Affidavit of Mortgagee to court to
use as evidence in asserting claims in the lawsuit.
Mr. Leyh knew that the lawsuit was an official proceeding in progress, and he
presented the Substitute Trustee’s Deed and the Affidavit of Mortgagee with
knowledge of the falsity each and with intent to affect the course or outcome of the
lawsuit in violation of Texas Penal Code §37.09:




proceeding.

Mr. Leyh presented the Substitute Trustee’s Deed and the Affidavit of Mortgagee to
court, with knowledge of the falsity each, as certified copies of governmental records
held by the County Clerk of Galveston County in violation of Section 37.10 Texas
Penal Code:





falsity;
Having knowledge that his client lacked the original note, Mr. Leyh knew that his
named in the deed of trust. Mr. Leyh still filed a claim into court against the
Defendant’s Amended Motion for Summary Judgment as to Possession in violation
of Texas Penal Code §38.12:
the person:
...
Mr. Leyh carried out his acts of fabrication of evidence, tampering with
governmental records, and barratry in agreement with and with aid of others in
committed:

agreement.

Diane Deloney (Charge 1 of 3) –– Aggravated Perjury p. 1 of 4

Defendant’s No-Evidence Motion for Summary Judgment, file stamped 03 JAN 30.
is the Owner and Holder of the Note and Deed of Trust.” She states that true and
correct copies of the note and deed of trust are attached to the affidavit. The first
paragraph of the affidavit indicates that DeLoney knew that the affidavit was going
to be used with a motion for summary judgment for the defendants. The affidavit
indicates that it was signed on August 29, 2002 and made in Collin County, Texas.
As part of the discovery process of the lawsuit, I was given access to a file of
documents supplied by defendant Countrywide and being held by defendants’
attorneys at the offices of LAYH & PAYNE, L.L.P. From that file, I obtained a
copy of the Note referred to in the DeLoney affidavit displaying an endorsement
in Pasadena, California.
The copy of the Note attached to the DeLoney affidavit and identified by her as
being a true and correct copy did not display this endorsement. In endorsing the
note and delivering possession of it to another entity, Countrywide gave up all rights
it had in the note and deed of trust; it ceased being “the Owner and Holder of the
Note and Deed of Trust.” The copy of the endorsed note and letter show that
material statements made in the DeLoney affidavit were false.
Statements made by DeLoney in the affidavit constitute a violation of Texas Penal

Code §37.03:
§37.02 Perjury



(2) is material.
Ms. DeLoney knew, as indicated in her affidavit, that an official proceeding was in
progress, and she made the affidavit with knowledge of its falsity and with intent to




proceeding.

Ms. DeLoney committed her acts of perjury and fabrication of evidence in

agreement with others in violation of Texas Penal Code §15.02:
committed:

agreement.

parties
Ms. DeLoney’s choice to join with others in the furtherance of the conspiracy makes


offense.

accomplice.
§7.02 Texas Penal Code, Criminal responsibility for conduct of another:
(a) A person is criminally responsible for an offense committed by the

COUNTRYWIDE HOME LOANS, INC
(Charge 1 of 19) –– Securing Execution of Document by Deception p. 1 of 15
In 1997 I applied for a loan with Countrywide Home Loans, Inc. to buy my home.
A note, deed of trust and other papers were signed at the closing on December 16,
1997. The first monthly payment was scheduled for February of 1998. I made the
first payment, and I continued to be billed for and make monthly payments for
several years.
Some time during the year 2000, I began to learn of certain practices of banks and
other commercial lenders that indicate that there are significant aspects of the loan
agreement and transaction that is not revealed to borrowers. Some of my research
referred me to publications of Federal Reserve Banks such as “Modern Money
Mechanics” of the Federal Reserve Bank of Chicago and “I Bet You Thought …” of
the Federal Reserve Bank of New York. I obtained copies of two expert witness
affidavits that had been filed into a court case in Michigan from the clerk of that
court. One affidavit was by a CPA and another was from a former attorney for
Federal Reserve Banks. Both affidavits indicate that the ”lender“ in that case did
not lend any of its own money, credit, or assets.
I paid a monthly payment to Countrywide in December of 2001, and in January of

2002, I began to make inquiries to Countrywide concerning the loan that I had been
paying and the location of the note. Informative answers were not forthcoming, so
I ceased making further payments until I had located the note and verified that
Countrywide was the holder of the note and the proper party to be paid.
I continued to make requests to Countrywide, and it continued to provide

uninformative and evasive answers. Countrywide began to send me notices in
preparation for foreclosure proceedings. Eventually a foreclosure sale was set for
the first Tuesday of June of 2002.
To stop the foreclosure sale, I brought suit in the 405th District Court of Galveston
County against Countrywide and Samuel Daffin, II, the substitute trustee for the
foreclosure action. During the course of the lawsuit, I obtained a copy of the note
and a letter that showed that Countrywide had signed away its rights in the note
and given possession and ownership of the note to another entity two days after the
note was signed.
In the early stages of the lawsuit, attorney for Countrywide brought in an affidavit
from the Keeper of Records for Countrywide to show that Countrywide was the
owner of the note. This affidavit had a copy of the note attached to it, and the
affidavit identified the copy as a true and correct copy of the note.
During the discovery process of the lawsuit, attorney for Countrywide provided me
with copies of documents that I had requested from Countrywide. Among those
was a copy of the note displaying an endorsement signed by an officer of
Countrywide and a letter dated 12/18/97 stating that the Note was enclosed with the
letter and that the original note had been “endorsed in blank”. This letter was
addressed to First Chicago National Processing Corporation in Pasadena,
California. In endorsing the note and delivering possession of it to another,
Countrywide gave up all rights it had in the note and deed of trust.
Copy of the note originally brought to court by Countrywide may be found as an

attachment to Defendant’s No-Evidence Motion for Summary Judgment, file
stamped 03 JAN 30. A copy of the endorsed note and letter may be found as
attachments to Plaintiff’s Second Amended Petition, file stamped 02 NOV 19. Copy
of the expert witness affidavits referenced above may be found as attachments to
Plaintiff’s Motion for New Trial, file stamped 2004 MAR –2, and a copy of the
Federal Reserve publications may be found as part of Plaintiff’s Exhibits for this
case held by the District Clerk.
Countrywide’s own records showed that it had given up ownership and possession
of the note two days after the note was made. Countrywide still sent bills to me
through the United States Postal Service for payments on this note every month.
Countrywide did not let me know that it had disposed of the note and no longer had
possession, ownership or interest in the note. Sending bills to me was a
misrepresentation of a debt owed to it. Because of this deception, I paid the
monthly billing 47 times by execution of a check, money order, authorization for
credit card payment, or by some other means of payment for total payment of more
than $30,000 and less than $40,000. I would not have made these payments except
for this deception. Countrywide’s actions in this matter constituted a criminal
episode in violation of Texas Penal Code §32.46:
§32.46 Securing Execution of Document by Deception

(a) A person commits an offense if, with intent to defraud or harm any person,
he, by deception:
(1) causes another to sign or execute any document affecting property or
service or the pecuniary interest of any person; or
…
(b) An offense under Subsection (a)(1) is a:
…
(5) felony of the third degree if the value of the property, service, or
pecuniary interest is $20,000 or more but less than $100,000;
During the course of the lawsuit various individuals and law firms took actions on
behalf of Countrywide. These actions indicate that these individuals and law firms
had duties of such a level of responsibility that these individuals and law firms were
high managerial agents of Countrywide,
§7.21 Definitions
In this subchapter:
(1) "Agent" means a director, officer, employee, or other person authorized to

act in behalf of a corporation or association.
(2) "High managerial agent" means:
(A) a partner in a partnership;
(B) an officer of a corporation or association;
(C) an agent of a corporation or association who has duties of such

responsibility that his conduct reasonably may be assumed to represent
the policy of the corporation or association.
Countrywide is responsible for the offenses committed by it agents on its behalf,
§7.22 Criminal Responsibility of Corporation or Association
(a) If conduct constituting an offense is performed by an agent acting in

behalf of a corporation or association and within the scope of his office
or employment, the corporation or association is criminally responsible
for an offense defined:
(1) in this code where corporations and associations are made subject
thereto;
...
The following concerns the acts of the individuals Diane DeLoney, Griffin Pivateau
Burke, Steven A. Leyh, Samuel Daffin, II, Sylvia Loredo, and the law firms LEYH
& PAYNE, L.L.P. and BARRETT BURKE WILSON CASTLE DAFFIN &
FRAPPIER, L.L.P. in the capacity of agents for Countrywide.
________________________________________________
Defendant’s No-Evidence Motion for Summary Judgment, file stamped 03 JAN 30.
is the Owner and Holder of the Note and Deed of Trust.” She states that true and
correct copies of the note and deed of trust are attached to the affidavit. The first
paragraph of the affidavit indicates that DeLoney knew that the affidavit was going
to be used with a motion for summary judgment for the defendants. The affidavit
indicates that it was signed on August 29, 2002 and made in Collin County, Texas.
As part of the discovery process of the lawsuit, I was given access to a file of
documents supplied by defendant Countrywide and being held by defendants’
attorneys at the offices of LAYH & PAYNE, L.L.P. From that file, I obtained a
copy of the Note referred to in the DeLoney affidavit displaying an endorsement
in Pasadena, California.
The copy of the Note attached to the DeLoney affidavit and identified by her as
being a true and correct copy did not display this endorsement. In endorsing the
note and delivering possession of it to another entity, Countrywide gave up all rights
it had in the note and deed of trust; it ceased being “the Owner and Holder of the
Note and Deed of Trust.” The copy of the endorsed note and letter show that
material statements made in the DeLoney affidavit were false.
Statements made by DeLoney in the affidavit constitute a violation of Texas Penal

Code §37.03:
§37.02 Perjury




(2) is material.
Ms. DeLoney knew, as indicated in her affidavit, that an official proceeding was in
progress, and she made the affidavit with knowledge of its falsity and with intent to



proceeding.

Ms. DeLoney committed her acts of perjury and fabrication of evidence in

agreement with others in violation of Texas Penal Code §15.02:
committed:

agreement.

parties
Ms. DeLoney’s choice to join with others in the furtherance of the conspiracy makes


offense.

accomplice.

conduct of another if:
(1) having a legal duty to prevent commission of the offense and

action with intent to promote or assist its commission, he fails to
make a reasonable effort to prevent commission of the offense.
(2) If, in the attempt to carry a conspiracy to commit one felony,

another felony is committed by one of the conspirators, all
conspirators are guilty of the felony actually committed, thought
having no intent to commit it, if the offense was committed in
furtherance of the unlawful purpose and was one that should have
been anticipated as a result of the carrying out of the conspiracy.
____________________________________________
Court documents indicate that defendants hired the law firm LEYH & PAYNE,
L.L.P. as attorneys for defendants for this lawsuit. Individual attorneys from this
law firm who signed documents filed into court and who appeared in court for the
defendants were Griffin Pivateau Burke, Texas Bar No. 16055950, and Steven A.
Leyh, Texas Bar No. 12318300.
which was prepared by Defendants’ attorney’s law firm, LEYH & PAYNE, L.L.P.,
and personally signed by attorney Griffin Pivateau Burke. Attached to this motion
was an affidavit by Diane DeLoney, in which she states that she was the “custodian
of Countrywide’s records” and in which she states, without reservation or
qualification, on the second page of the affidavit that “Countrywide is the Owner
and Holder of the Note and Deed of Trust.”
LEYH & PAYNE, L.L.P. I was personally handed the file containing these
documents by Mr. Burke at the offices of LEYH & PAYNE, L.L.P. These
lawsuit.
at the offices of LEYH & PAYNE, L.L.P.; he was provided another copy of the
affect the course or outcome of the lawsuit in violation of Texas Penal Code §37.09,
described previously in this complaint as Tampering With or Fabricating Physical
Evidence.
the person:
...
with and with aid of others in violation of Texas Penal Code §15.02, described
previously in this complaint as Criminal Conspiracy.
Steven A. Leyh signed Defendant’s Amended Motion for Summary Judgment as to

Deed.

had in the note and the deed of trust.
More than year prior to Defendant’s Amended Motion for Summary Judgment as
to Possession being filed with the court, I filed with the court and provided a copy to
I obtained copies of the endorsed note and this letter from the law firm of LEYH &
LEYH & PAYNE, L.L.P. These documents were being provided to me as part of
the discovery process of the lawsuit.
lawsuit in violation of Texas Penal Code §37.09, described previously in this
complaint as Tampering With or Fabricating Physical Evidence.
Penal Code:





falsity;
of Texas Penal Code §38.12, described previously in this complaint as Barratry.
violation of Texas Penal Code §15.02, described previously in this complaint as
Criminal Conspiracy.
____________________________________________
Mr. Daffin was part of the law firm BARRETT BURKE WILSON CASTLE
DAFFIN & FRAPPIER, L.L.P., which was attorney for COUNTRYWIDE HOME
LOANS, INC. for the foreclosure action that Countrywide was taking against my
property. Documents filed into the court case indicate that Mr. Daffin was acting as
agent for the law firm in the foreclosure action.
Samuel Daffin, II, conducted a foreclosure sale of the property in the lobby of the
Galveston County Courthouse on October 1, 2002. He signed a Substitute Trustee’s
Deed and had it notarized on October 1, 2002 in Harris County, Texas. Mr. Daffin
caused the Substitute Trustee’s Deed to be filed and recorded into the Official
Public Records of Real Property of Galveston County on October 7, 2002. A copy of
this Substitute Trustee’s Deed was attached to and used as evidence for Defendant’s
Amended Motion for Summary Judgment as to Possession, and this motion was
filed with the District Clerk of Galveston County, file stamp 04 JAN –8.
in Pasadena, California. A copy of this endorsed note and letter can be found as
attachments to Plaintiff’s Second Amended Petition. In endorsing the note and

note and deed of trust.
Deed of Trust.”

receiver;
...


than $20;
...
...
violation of Texas Penal Code §37.09, described previously in this complaint as
Tampering With or Fabricating Physical Evidence.
Clerk of Galveston County in violation of Section 37.10 Texas Penal Code, described
previously in this complaint as Tampering With Governmental Record.
aid of others in violation of Texas Penal Code §15.02, described previously in this
complaint as Criminal Conspiracy.
Also employed by the law firm of the law firm BARRETT BURKE WILSON
CASTLE DAFFIN & FRAPPIER, L.L.P., and acting as an agent for the law firm
during the course of foreclosure action was Sylvia Loredo.
While the lawsuit was ongoing and in connection with a foreclosure sale of the

sale and constitute a violation of Section 37.03 Texas Penal Code, previously
described in this complaint as Aggravated Perjury.
foreclosure process in violation of Section 37.09 Texas Penal Code, previously
described in this complaint as Tampering With or Fabricating Physical Evidence.
Clerk of Galveston County in violation of Section 37.10 Texas Penal Code,
previously described in this complaint as Tampering With Governmental Record.
Ms. Loredo carried out her acts of aggravated perjury, fabrication of evidence, and
violation of Section 15.02 Texas Penal Code, previously described in this complaint
as Criminal Conspiracy.
LEYH & PAYNE, L.L.P. (Charge 1 of 7) ––Fabricating Physical Evidence #1 p. 1 of 8

Court documents indicate that defendants hired the law firm LEYH & PAYNE,
L.L.P. as attorneys for defendants for this lawsuit. Individual attorneys from this
law firm who signed documents filed into court and who appeared in court for the
defendants were Griffin Pivateau Burke, Texas Bar No. 16055950, and Steven A.
Leyh, Texas Bar No. 12318300.
which was prepared by Defendants’ attorney’s law firm, LEYH & PAYNE, L.L.P.,
and personally signed by attorney Griffin Pivateau Burke. Attached to this motion
was an affidavit by Diane DeLoney, in which she states that she was the “custodian
of Countrywide’s records” and in which she states, without reservation or
qualification, on the second page of the affidavit that “Countrywide is the Owner
and Holder of the Note and Deed of Trust.”
LEYH & PAYNE, L.L.P. I was personally handed the file containing these
documents by Mr. Burke at the offices of LEYH & PAYNE, L.L.P. These
lawsuit.
at the offices of LEYH & PAYNE, L.L.P.; he was provided another copy of the



proceeding.

the person:
...
with and with aid of others in violation of Texas Penal Code §15.02:
committed:

agreement.

parties
Mr. Burke’s choice to join with others in the furtherance of the conspiracy makes



offense.

accomplice.



conspirators are guilty of the felony actually committed, thought
Steven A. Leyh signed Defendant’s Amended Motion for Summary Judgment as to

Deed.

had in the note and the deed of trust.
More than year prior to Defendant’s Amended Motion for Summary Judgment as
to Possession being filed with the court, I filed with the court and provided a copy to
I obtained copies of the endorsed note and this letter from the law firm of LEYH &
LEYH & PAYNE, L.L.P. These documents were being provided to me as part of
the discovery process of the lawsuit.
lawsuit in violation of Texas Penal Code §37.09, which makes tampering with or
fabricating physical evidence an offense.
Penal Code:





falsity;
of Texas Penal Code §38.12, which makes Barratry an offense.
violation of Texas Penal Code §15.02, which makes Criminal Conspiracy an offense.
Court documents indicate that Griffin Pivateau Burke and Steven A. Leyh were
acting in behalf of LEYH & PAYNE, L. L. P. LEYH & PAYNE, L. L. P. is an
association for the purposes of the Texas Penal Code,
§1.07 Definitions
(a) In this code:
(6) "Association" means a government or governmental subdivision or

agency, trust, partnership, or two or more persons having a joint or
common economic interest.
…
The acts of Griffin Pivateau Burke and Steven A. Leyh were in the capacity of an
agent for the association,
§7.21 Definitions
In this subchapter:
(1) "Agent" means a director, officer, employee, or other person

authorized to act in behalf of a corporation or association.
...
As agents for the association, the association is criminally responsible for the
offenses committed by Griffin Pivateau Burke and Steven A. Leyh,
§7.22 Criminal Responsibility of Corporation or Association
(a) If conduct constituting an offense is performed by an agent acting in

behalf of a corporation or association and within the scope of his office
or employment, the corporation or association is criminally responsible
for an offense defined:
(1) in this code where corporations and associations are made subject
BARRETT BURKE WILSON CASTLE DAFFIN & FRAPPIER, L.L.P.
(Charge 1 of 8) –– Misapplication of Fiduciary Property p. 1 of 9

Mr. Daffin was part of the law firm BARRETT BURKE WILSON CASTLE
DAFFIN & FRAPPIER, L.L.P., which was attorney for COUNTRYWIDE HOME
LOANS, INC. for the foreclosure action that Countrywide was taking against my
property. Documents filed into the court case indicate that Mr. Daffin was acting as
agent for the law firm in the foreclosure action.
While this suit was ongoing, Samuel Daffin, II, conducted a supposed foreclosure
sale of the property in the lobby of the Galveston County Courthouse on October 1,
2002. He signed a Substitute Trustee’s Deed and had it notarized on October 1,
2002 in Harris County, Texas. Mr. Daffin caused the Substitute Trustee’s Deed to
be filed and recorded into the Official Public Records of Real Property of Galveston
County on October 7, 2002. A copy of this Substitute Trustee’s Deed was attached
to and used as evidence for Defendant’s Amended Motion for Summary Judgment
as to Possession, and this motion was filed with the District Clerk of Galveston
County, file stamp 04 JAN –8.
in Pasadena, California. In endorsing the note and delivering possession of it to
another, Countrywide gave up all rights it had in the note and deed of trust.
Deed of Trust.”

receiver;
...


than $20;
...
...



proceeding.






falsity;
aid of others in violation of Texas Penal Code §15.02:
committed:

agreement.

parties
...
Mr. Daffin’s choice to join with others in the furtherance of the conspiracy makes


offense.

accomplice.



conspirators are guilty of the felony actually committed, though
Also employed by the law firm and acting as an agent for the law firm during the
course of foreclosure action was Sylvia Loredo, whose unlawful acts are described
hereinafter.
While the lawsuit was ongoing and in connection with a foreclosure sale of the

sale and constitute a violation of Section 37.03 Texas Penal Code:
§37.02 Perjury



(2) is material.
foreclosure process in violation of Section 37.09 Texas Penal Code, Tampering With
or Fabricating Physical Evidence, text included above.
Clerk of Galveston County in violation of Section 37.10 Texas Penal Code,
Tampering With Governmental Record, text included above.
Ms. Loredo carried out her acts of aggravated purjury, fabrication of evidence, and
violation of Section 15.02 Texas Penal Code, Criminal Conspiracy, text included
above.
Documents filed into court indicate that BARRETT BURKE WILSON CASTLE
DAFFIN & FRAPPIER, L.L.P. was the attorney for Countrywide in the foreclosure
action. BARRETT BURKE WILSON CASTLE DAFFIN & FRAPPIER, L.L.P. is
an association for the purposes of the Texas Penal Code,
§1.07 Definitions
(a) In this code:
(6) "Association" means a government or governmental subdivision or

agency, trust, partnership, or two or more persons having a joint or
common economic interest.

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B.

Argument and Authorities

Summary Judgment Evidence Tainted

18. Countrywide has repeatedly demonstrated itself to be a criminal enterprise – engaged,

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

In order to stop a planned non-judicial foreclosure action against my home by

This Affidavit of Mortgagee indicated that Ms. Loredo was an employee of

(1) he makes a false statement under oath or swears to the truth of a

(2) he makes a false unsworn declaration under Chapter 132, Civil

(b) An offense under this section is a Class A misdemeanor.

§37.03 Aggravated Perjury

(a) A person commits an offense if he commits perjury as defined in Section

(1) is made during or in connection with an official proceeding; and

(b) An offense under this section is a felony of the third degree.

§37.09 Tampering With or Fabricating Physical Evidence

(a) A person commits an offense if, knowing that an investigation or official

(1) alters, destroys, or conceals any record, document, or thing with

(2) makes, presents, or uses any record, document, or thing with

(c) An offense under Subsection (a) or Subsection (d)(1) is a felony of the

(d) …[Not applicable to this complaint]

§37.10. Tampering With Governmental Record.

(a) A person commits an offense if he:

(1) knowingly makes a false entry in, or false alteration of, a

(2) makes, presents, or uses any record, document, or thing with

(3) intentionally destroys, conceals, removes, or otherwise impairs the

(4) possesses, sells, or offers to sell a governmental record or a blank

(5) makes, presents, or uses a governmental record with knowledge of its

§15.02. Criminal Conspiracy.

(2) he or one or more of them performs an overt act in pursuance of the

(b) An agreement constituting a conspiracy may be inferred from acts of the

§7.01 Texas Penal Code, Parties to offenses:

(a) A person is criminally responsible as a party to an offense if the

(b) Each party to an offense may be charged with commission of the

(c) All traditional distinctions between accomplices and principals are

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

In order to stop a planned non-judicial foreclosure action against my home by

PAYNE, L.L.P., provided me with a copy of the note displaying an endorsement

§32.45 Misapplication of Fiduciary Property or Property of Financial Institution

(a) For purposes of this section:

(1) "Fiduciary" includes:

(A) trustee, guardian, administrator, executor, conservator, and

(2) "Misapply" means deal with property contrary to:

(A) an agreement under which the fiduciary holds the property; or

(B) a law prescribing the custody or disposition of the property.

(b) A person commits an offense if he intentionally, knowingly, or recklessly

(c) An offense under this section is:

(1) Class C misdemeanor if the value of the property misapplied is less

§37.09 Tampering With or Fabricating Physical Evidence

(a) A person commits an offense if, knowing that an investigation or official

(1) alters, destroys, or conceals any record, document, or thing with

(2) makes, presents, or uses any record, document, or thing with

(c) An offense under Subsection (a) or Subsection (d)(1) is a felony of the

(d) …[Not applicable to this complaint]

§37.10. Tampering With Governmental Record.

(a) A person commits an offense if he:

(1) knowingly makes a false entry in, or false alteration of, a

(2) makes, presents, or uses any record, document, or thing with

(3) intentionally destroys, conceals, removes, or otherwise impairs the

(4) possesses, sells, or offers to sell a governmental record or a blank

(5) makes, presents, or uses a governmental record with knowledge of its

§15.02. Criminal Conspiracy.

(2) he or one or more of them performs an overt act in pursuance of the

(b) An agreement constituting a conspiracy may be inferred from acts of the