Legal Document: CSL Financial, LLC vs. Gene Hawkins, Et Al

On September 29, 2022 a Appeal - Clerk Record - File Copy - Filed w/14th CRT of Appeals was filed involving a dispute between Csl Financial, Llc, and Hawkins, Alana, Hawkins, Gene, Sheppard, Michael, for Contract - Debt in the District Court of Galveston County.

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CLERK’S RECORD

Appellate Court Case Number 14‐23‐00655‐CV

Volume ____1_______ of ___1_______

Trial Court Cause No. 22‐CV‐1906

In the Court 405th District Court

of Galveston County, Texas

Honorable Jared Robinson Judge Presiding

_________________________________________________________________

CSL Financial, LLC vs. Gene Hawkins, Et Al

_________________________________________________________________

Appealed to the Court of Appeals for the Fourteenth District of Texas, at, Houston, Texas

Attorney for Appellants(s): Mark Aronowitz

Address: PO Box 1201

Texas City TX 77592

Telephone Number: 281‐402‐6780

Fax Number: 281‐715‐4284

E‐Mail Address: markaronowitz@hotmail.com

State Bar of Texas Number: 00793281

Name of Appellant/s: Alana Hawkins

Name of clerk preparing the clerk’s record: John D. Kinard, District Clerk of Galveston County, Texas

By /s/ : Shailja Dixit

1
Case Number 22‐CV‐1906 ‐ 405th District Court

CSL Financial, LLC vs. Gene Hawkins, Et Al

Date Filed and Document Name Page#

2023‐09‐08_Title Page 1

2023‐09‐08_Index 2

2023‐09‐08_Caption 3

2022‐09‐29_Original Petition 4

2022‐12‐19_Original Answer 7

2023‐01‐20_Amended Petition‐First 10

2023‐06‐06_Motion for Summary 15

2023‐06‐16_Notice of Hearing 130

2023‐07‐31_Response ‐ Defendant's Response to Motion for Summary 132

2023‐08‐02_Order Granting Summary Judgment ‐Final ‐OCA 159

2023‐09‐01_Affidavit of Inability to Pay Court Costs 164

2023‐09‐01_Notice of Appeal 167

2023‐09‐06_Request for Clerk’s Record on Appeal‐Defendant 169

2023‐09‐15_Request for Clerk's Record on Appeal ‐Plaintiff 172

2023‐09‐15_Request for Reporter's Record 175

2023‐09‐18_Case Summary 178

2023‐09‐21_Cost Bill 182

2023‐09‐22_Clerk’s Certificate 184

2
Appeal Caption

The State of Texas
County of Galveston

In 405th District Court at Galveston, Texas, within and for the County of Galveston, before the
Honorable Jared Robinson, Judge thereof Presiding, the following case came on for trial, to-wit:

CASE NUMBER 22-CV-1906

CSL Financial, LLC vs. Gene Hawkins, Et Al

3
Filed: 9/29/2022 10:00 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 68729023
By: Elissa Alvarado
9/29/2022 11:50 AM
22-CV-1906
No. ___________________
CSL FINANCIAL, LLC, § IN THE DISTRICT COURT
§Galveston County - 405th District Court
Plaintiff, §
§
v. § ______JUDCIAL DISTRICT
§
GENE HAWKINS and §
MICHAEL SHEPPARD, §
§
§
Defendants. § GALVESTON COUNTY, TEXAS

PLAINTIFF'S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, CSL Financial, LLC (“CSL“) and makes and files this its Original

Petition complaining of Defendants, Gene Hawkins and Michael Sheppard, and in support thereof

would show as follows:

DISCOVERY

1. Pursuant to Texas R. Civ. P. 190, discovery in this case shall be conducted under Level 2.

PARTIES

2. Gene Hawkins and Michael Sheppard are individuals who may both be served with process

at 4425 4th Street, Bacliff, Texas 77518, which is the address of residence of both Defendants.

JURISDICTION AND VENUE

3. Jurisdiction is proper in this Court, as the amount at issue does not exceed the maximum

jurisdictional limits of this Court.

4. Venue is proper in this County, Texas, because this county is the county of residence of at

least one Defendant.

Status Conference 12/29/22

Plaintiff's Original Petition, page 1
4
CLAIM FOR RELIEF

5. CSL seeks monetary relief of $250,000 or less, and non-monetary relief.

STATEMENT OF FACTS

6. CSL is the holder of a Promissory Note and Security Agreement executed by Gene

Hawkins and Michael Sheppard on or about 10/27/2017 (the “Contract”).

7. CSL holds a perfected security interest in a 2015 Fleetwood manufactured home, bearing

serial number FLE240TX1536522A and bearing a label number of PFS1152357 (“Collateral”).

8. Gene Hawkins and Michael Sheppard defaulted on the Contract and were sent notice of

default and given a right to cure. Gene Hawkins and Michael Sheppard failed to cure the default,

and the Note was accelerated.

POSSESSION AND DEFICIENCY

9. CSL has a perfected security interest in the Collateral. Gene Hawkins and Michael

Sheppard have defaulted on the Contract, therefore CSL is entitled to possession of the Collateral.

Accordingly, CSL requests that this Court enter judgment requiring the sheriff or constable of the

county where the Collateral is located to seize the Collateral and deliver possession of the

Collateral to CSL.

10. In addition, CSL seeks from Gene Hawkins and Michael Sheppard the collection of any

amount of deficiency after the disposition of the Collateral.

11. In the alternative and without waiving the foregoing, CSL seeks payment in the amount

due under the Contract, with interest accruing pursuant to the terms and conditions of the Contract.

As of September 28, 2022, the amount due under the Contract is $51,829.57.

12. Upon acceleration of the Contract, CSL had the right to possession of the Collateral. CSL

seeks possession of the Collateral from the Gene Hawkins and Michael Sheppard.

Plaintiff's Original Petition, page 2
5
ATTORNEY FEES

13. Gene Hawkins and Michael Sheppard's defaults have made it necessary for CSL to employ

the undersigned attorney to file suit. This claim was timely presented to Gene Hawkins and

Michael Sheppard and remains unpaid. A reasonable fee for the attorney's services rendered and

to be rendered is $250.00 per hour pursuant. CSL is entitled to reasonable and necessary attorney's

fees for the handling of and trial of this case, for any appeals in accordance with Chapter 38 of the

Texas Civil Practice and Remedies Code.

PRAYER FOR RELIEF

WHEREFORE, upon final hearing, CSL requests that this Court enter judgment requiring the

sheriff or constable of the county in which the Collateral is located to seize the Collateral and

deliver possession of the Collateral to CSL; that CSL be granted a judgment against Gene Hawkins

and Michael Sheppard for any deficiency due under the Contract; that CSL be granted judgment

against Gene Hawkins and Michael Sheppard for reasonable and necessary attorney's fees; and for

such other and further relief CSL may be entitled in law or equity.

Respectfully submitted

/s/ Daniel Denton
Daniel Denton
State Bar No. 24075843
6301 Gaston Avenue, Suite 550
Dallas, Texas 75214
Telephone: (972) 997-5309
Facsimile: (214) 237-5936
Email: denton@lawyer-dfw.com

Attorney for CSL Financial, LLC.

Plaintiff's Original Petition, page 3
6
Filed: 12/19/2022 12:00 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 71113459
By: Shailja Dixit
12/19/2022 8:13 AM

CASE NO. 22-CV-1906

CSL FIN., LLC, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § OF GALVESTON COUNTY, TEXAS
§
GENE HAWKINS, et al. §
§
Defendants. § 405th JUDICIAL DISTRICT

DEFENDANT SHEPPARD’S ORIGINAL ANSWER

TO THE HON. JARED S. ROBINSON, PRESIDING JUDGE OF SAID COURT:

Defendant, Michael Sheppard (“Defendant Sheppard”), files this original answer to

plaintiff CSL Financial, L.L.C.’s original petition in this action, and by way of an answer shows

the following:

The last three digits of Defendant Sheppard’s Texas driver’s license number are XXX. The

last here digits of Defendant Sheppard’s Social Security number are XXX.

GENERAL DENIAL

1. Defendant Sheppard generally denies the allegations in plaintiff’s original petition.

OTHER DEFENSES

2. Defendant Sheppard is not liable to plaintiff because Defendant Sheppard’s

performance was excused due to impossibility of performance.

3. Defendant Sheppard is not liable to plaintiff for the amount of damages claimed

because plaintiff did not mitigate damages.

4. Defendant Sheppard is not liable to plaintiff for the amount of damages claimed

because Defendant Sheppard is entitled to an offset.

7
PRAYER

5. For these reasons, Defendant Sheppard respectfully prays that judgment in this

action be entered in favor of Defendant Sheppard, with costs to be taxed against plaintiff; that

plaintiff take nothing by its petition; and that Defendant Sheppard be awarded such other and

further relief to which he may be justly entitled.

Respectfully submitted,

/s/
_______________________________________
MARK ARONOWITZ
State Bar No.: 00793281
Attorney for Defendant Sheppard
markaronowitz@hotmail.com
P. O. Box 1201
Texas City, TX 77592
Tel.: (281) 402-6780
Fax: (281) 715-4284

CERTIFICATE OF SERVICE

I certify that a true copy of the above was served on each attorney or party in accordance with

the Texas Rules of Civil Procedure on December 19, 2022.

/s/
_______________________________________
MARK ARONOWITZ

8
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Mark Aronowitz on behalf of Mark Aronowitz
Bar No. 00793281
markaronowitz@hotmail.com
Envelope ID: 71113459
Status as of 12/19/2022 8:13 AM CST

Associated Case Party: CSL Financial, LLC

Name BarNumber Email TimestampSubmitted Status

Daniel Denton
I I
denton@lawyer-dfw.com 12/18/2022 10:12:35 AM
I
SENT
I
Associated Case Party: Michael Sheppard

Name BarNumber Email TimestampSubmitted Status

Mark Aronowitz markaronowitz@hotmail.com 12/18/2022 10:12:35 AM SENT

Alana M.Sheppard alanamhawkins@gmail.com 12/18/2022 10:12:35 AM
I I
SENT

Associated Case Party: Gene Hawkins

Name BarNumber Email TimestampSubmitted Status

Scott D.Reiner scott@thereinerlaw.com 12/18/2022 10:12:35 AM
I I
SENT

9
Filed: 1/20/2023 2:32 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 71994556
By: Sandra Orizaga
1/20/2023 2:48 PM

No. 22-CV-1906
CSL FINANCIAL, LLC, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § 405TH JUDCIAL DISTRICT
§
GENE HAWKINS, §
MICHAEL SHEPPARD, and §
ALANA HAWKINS. §
§
§
Defendants. § GALVESTON COUNTY, TEXAS

PLAINTIFF'S FIRST AMENDED PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, CSL Financial, LLC (“CSL“) and makes and files this its Original

Petition complaining of Defendants, Gene Hawkins, Michael Sheppard, and Alana Hawkins and

in support thereof would show as follows:

DISCOVERY

1. Pursuant to Texas R. Civ. P. 190, discovery in this case shall be conducted under Level 2.

PARTIES

2. Gene Hawkins, Michael Sheppard, and Alana Hawkins are individuals who may be served

with process at 4425 4th Street, Bacliff, Texas 77518, which is the address of residence of both

Defendants.

JURISDICTION AND VENUE

3. Jurisdiction is proper in this Court, as the amount at issue does not exceed the maximum

jurisdictional limits of this Court.

4. Venue is proper in this County, Texas, because this county is the county of residence of at

least one Defendant.

Plaintiff's First Amended Petition, page 1
10
CLAIM FOR RELIEF

5. CSL seeks monetary relief of $250,000 or less, and non-monetary relief.

STATEMENT OF FACTS

6. CSL is the holder of a Promissory Note and Security Agreement executed by Gene

Hawkins and Michael Sheppard on or about 10/27/2017 (the “Contract”).

7. CSL holds a perfected security interest in a 2015 Fleetwood manufactured home, bearing

serial number FLE240TX1536522A and bearing a label number of PFS1152357 (“Collateral”).

8. Gene Hawkins and Michael Sheppard defaulted on the Contract and were sent notice of

default and given a right to cure. Gene Hawkins and Michael Sheppard failed to cure the default,

and the Note was accelerated.

9. On information and belief, Gene Hawkins and Alana Hawkins were divorced in In the

Matter of the Marriage of Gene Nicolai Hawkins and Alana Hawkins in the 306TH District Court

of Galveston County, Texas by Final Divorce Decree entered on 11/14/2022. On information and

belief Alana Hawkins was awarded the Collateral at issue in this matter in the division of

community property in the Final Divorce Decree. Alana Hawkins is not a signatory party to the

Contract that is the subject of this lawsuit.

POSSESSION AND DEFICIENCY

10. CSL has a perfected security interest in the Collateral. Gene Hawkins and Michael

Sheppard have defaulted on the Contract, therefore CSL is entitled to possession of the Collateral.

Accordingly, CSL requests that this Court enter judgment requiring the sheriff or constable of the

county where the Collateral is located to seize the Collateral and deliver possession of the

Collateral to CSL. Alana Hawkins’ possession is inferior to and subject to Plaintiff’s right of

possession of the Collateral. Therefore, judgment for possession of the Collateral in favor of

Plaintiff's First Amended Petition, page 2
11
Plaintiff should be awarded in favor of CSL and against all named Defendants.

11. In addition, CSL seeks from Gene Hawkins and Michael Sheppard the collection of any

amount of deficiency after the disposition of the Collateral.

12. In the alternative and without waiving the foregoing, CSL seeks from Gene Hawkins and

Michael Sheppard payment in the amount due under the Contract, with interest accruing pursuant

to the terms and conditions of the Contract. As of January 19, 2023, the amount due under the

Contract is $55,223.51.

13. Upon acceleration of the Contract, CSL had the right to possession of the Collateral. CSL

seeks possession of the Collateral from the Gene Hawkins, Michael Sheppard, and Alana Hawkins.

ATTORNEY FEES

14. Gene Hawkins and Michael Sheppard's defaults have made it necessary for CSL to employ

the undersigned attorney to file suit. This claim was timely presented to Gene Hawkins and

Michael Sheppard and remains unpaid. A reasonable fee for the attorney's services rendered and

to be rendered is $250.00 per hour pursuant. CSL is entitled to reasonable and necessary attorney's

fees for the handling of and trial of this case, for any appeals in accordance with Chapter 38 of the

Texas Civil Practice and Remedies Code.

PRAYER FOR RELIEF

WHEREFORE, upon final hearing, CSL requests that this Court enter judgment requiring the

sheriff or constable of the county in which the Collateral is located to seize the Collateral and

deliver possession of the Collateral to CSL; that CSL be granted a judgment against Gene Hawkins

and Michael Sheppard for any deficiency due under the Contract; that CSL be granted judgment

against Gene Hawkins and Michael Sheppard for reasonable and necessary attorney's fees; and for

such other and further relief CSL may be entitled in law or equity.

Plaintiff's First Amended Petition, page 3
12
Respectfully submitted

/s/ Daniel Denton
Daniel Denton
State Bar No. 24075843
6060 N. Central Expressway, Suite 500
Dallas, Texas 75206
Telephone: (972) 997-5309
Email: denton@lawyer-dfw.com

Attorney for CSL Financial, LLC.

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on January 20, 2023 a true and correct copy of the foregoing

document was served on all counsel of record/pro se parties who have made an appearance in this

matter.

/s/ Daniel Denton
Daniel Denton

Plaintiff's First Amended Petition, page 4
13
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Daniel Denton on behalf of Daniel Denton
Bar No. 24075843
denton@lawyer-dfw.com
Envelope ID: 71994556
Status as of 1/20/2023 2:50 PM CST

Associated Case Party: Gene Hawkins

Name BarNumber Email TimestampSubmitted Status

Scott D.Reiner
I I
scott@thereinerlaw.com 1/20/2023 2:32:55 PM
I
SENT
I
Associated Case Party: Michael Sheppard

Name BarNumber Email TimestampSubmitted Status

Mark Aronowitz markaronowitz@hotmail.com 1/20/2023 2:32:55 PM SENT

Alana M.Sheppard
I I
alanamhawkins@gmail.com 1/20/2023 2:32:55 PM
I I
SENT

14
Filed: 6/6/2023 9:54 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 76320096
By: Shailja Dixit
6/6/2023 10:58 AM

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, CSL Financial, LLC (“CSL“) and makes and files this Motion for

Summary Judgment and in support thereof would show as follows:

BACKGROUND

1. This is a debt case involving a loan made by the Plaintiff to the Defendants Gene Hawkins

and Michael Sheppard to finance the purchase of a manufactured home. The financing agreement

between the Defendants Gene Hawkins and Michael Sheppard and the Plaintiff included a Note

and Security Agreement. Under the terms of the Note and Security Agreement the Defendants

Gene Hawkins and Michael Sheppard agreed to make monthly payments toward the debt. In

addition, the Defendants Gene Hawkins and Michael Sheppard pledged the manufactured home

that was the subject of the Note and Security Agreement as collateral for the loan. Under these

terms, the Plaintiff is entitled to repossess the manufactured home if the Defendants Gene Hawkins

and Michael Sheppard did not make timely payments on the debt.

2. The Defendants Gene Hawkins and Michael Sheppard have failed to make payments on

the debt. Therefore, the Plaintiff filed this action to enforce its right of repossession and also seeks

Plaintiff's Motion for Summary Judgment, page 1
15
a money judgment on the outstanding debt from the Defendants Gene Hawkins and Michael

Sheppard.

3. The Defendant Alana Hawkins was not a party to the Note and Security Agreement.

Therefore, the Plaintiff does not seek a money judgment against the Defendant Alana Hawkins.

However, Alana Hawkins is currently in possession of the manufactured home. Alana Hawkins

received possession of the manufactured home in a divorce proceeding between Alana Hawkins

and Gene Hawkins. Alana Hawkins’ award of and possession of the manufactured home is subject

to and inferior to the Plaintiff’s lien on the manufactured home. Therefore, the Plaintiff seeks an

award of possession of the manufactured home against the Defendant Alana Hawkins.

4. All parties have been served in this matter or have otherwise made an appearance in this

matter. The Defendant Gene Hawkins was served by private process server on October 18, 2022.

While Gene Hawkins mailed the Plaintiff’s counsel a purported answer in this lawsuit, the

Defendant Gene Hawkins has not filed an answer into the Court’s records of the matter. Gene

Hawkins has therefore defaulted, and the Plaintiff is entitled to a judgment against the Defendant

Gene Hawkins.

5. The Defendants Michael Sheppard and Alana Hawkins have made an appearance in this

matter through their counsel of record.

SUMMARY JUDGMENT LEGAL STANDARDS

6. A claimant may move a court for entry of a summary judgment at any time after an adverse

party has appeared in a case. T.R.C.P 166a. The movant has the burden to show that there are no

genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Id.

7. A party may also move a court for a no-evidence summary judgment. Id. The movant in a

no evidence summary judgment must show that there is no evidence of one or more essential

Plaintiff's Motion for Summary Judgment, page 2
16
elements of a claim or defense of an adverse party. Id.

SUMMARY JUDGMENT EVIDENCE

8. In support of this motion, the Plaintiff attaches hereto and incorporates by reference the

following:

 Exhibit A – Affidavit of the Courtney Gates the Custodian of Records for Plaintiff;

 Exhibit B – Defendants’ Answers to Plaintiff’s First Request for Admissions;

 Exhibit C – Defendants’ Answers to Plaintiff’s Interrogatories; and

 Exhibit D – Defendants’ Response to Plaintiff’s Requests for Production, incorrectly

titled Defendants’ Response to Plaintiff’s First Request for Admissions.

UNDISPUTED FACTS

9. The following facts are undisputed:

a. Gene Hawkins and Michael Sheppard entered into enforceable contracts with the

Plaintiff, which are titled “Promissory Note” and “Security Agreement.” See Exhibit

A; Exhibit B – Response to Request for Admission 1.

b. Under the terms of the Promissory Note, the Defendants Gene Hawkins and Michael

Sheppard were required to pay monthly payments to the Plaintiff. See Exhibit A;

Exhibit B – Response to Request for Admission 1, 4-12.

c. The Defendants Gene Hawkins and Michael Sheppard have failed to make monthly

payments under the Promissory Note for the months of at least June 2022 – December

2022 and January 2023 – March 2023. See Exhibit A; Exhibit B – Response to Request

for Admission 4-12.

d. The Security Agreement gives the Plaintiff the right to repossess the manufactured

home if the Defendants Gene Hawkins and Michael Sheppard failed to comply with

Plaintiff's Motion for Summary Judgment, page 3
17
the terms of the Promissory Note. See Exhibit A.

e. The Defendants Gene Hawkins and Michael Sheppard have breached the terms of the

Promissory Note by failing to make the monthly payments for the months of June 2022

– December 2022 and January 2023 – March 2023. See Exhibit A; Exhibit B –

Response to Request for Admission 4-12.

f. The Plaintiff has a perfected lien on the manufactured home. See Exhibit A.

g. The Plaintiff’s perfected lien on the manufactured home is superior to the Defendant

Alana Hawkins’ award and possession of the manufactured home in the divorce of

Alana Hawkins’ and Gene Hawkins. See Exhibit A; Exhibit D – Response to Request

for 7.

h. The Defendants are not entitled to any credits or offsets to the amount due under the

Promissory Note that are not accounted for in the total amount due provided below.

See Exhibit A; Exhibit B – Response to Interrogatories 1, 5.

i. The Plaintiff provided the Defendants Gene Hawkins and Michael Sheppard the

opportunity to cure their default under the Promissory Agreement. See Exhibit A.

j. The Defendants Gene Hawkins and Michael Sheppard failed to cure their default under

the Promissory Agreement. See Exhibit A; Exhibit D – Response to Request for

Production 8.

k. The manufactured home that is the subject to this lawsuit is currently and has been

located at 4425 4th Street, Bacliff, Texas 77518 since at least November 15, 2017. See

Exhibit A; Exhibit D – Response to Requests for Production 3, 8, 11.

BREACH OF CONTRACT, POSSESSION, AND DEFICIENCY

10. The Plaintiff has sued the Defendants Gene Hawkins and Michael Sheppard for breach of

Plaintiff's Motion for Summary Judgment, page 4
18
contract. The Plaintiff has sued all Defendants for possession of the manufactured home and

foreclosure of the Plaintiff’s lien on the home.

11. The essential elements of a breach of contract claim are (1) the existence of a valid contract;

(2) performance or tendered performance by the plaintiff; (3) breach of the contract by the

defendant; and (4) damages to the plaintiff resulting from that breach. Wright v. Christian & Smith,

950 S.W.2d 411, 412 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (citing Hussong v. Schwan's

Sales Enters., Inc., 896 S.W.2d 320, 326 (Tex. App.—Houston [1st Dist.] 1995, no writ)).

12. After default, a secured party may take possession of the collateral though judicial process.

Tex. Bus. & Com. Code § 9.601, 9.609; Conseco Finance Servicing Corporation v. Lee, No. 14-

03-01194-CV, 6/8/2004 (Tex. App.—Houston [14th Dist.] 2004, mem op., no writ)).

13. The Plaintiff is entitled to summary judgment on its breach of contract, possession, and

deficiency claims. It is undisputed that a valid contract exists; that the Plaintiff performed on the

contract by providing financing funds; that the Defendants who were parties to the contract have

breached the contract by failing to make required monthly payments; and that the Plaintiff is

damaged by this breach because the Defendants Gene Sheppard and Michael Hawkins owe the

Plaintiff the balance of the loan. Therefore, as a matter of law, the Plaintiff is entitled to judgment

on its breach of contract claim, including an award for the amount owed to Plaintiff by Defendant’s

Gene Sheppard and Michael Hawkins.

14. It is also undisputed that the enforceable contract between the Plaintiff and Defendants

Gene Hawkins and Michael Sheppard expressly provides that the Plaintiff is entitled to possession

of the manufactured home pledged as collateral in the enforceable contract. Plaintiff is entitled to

enforce its right of possession through this judicial process. Tex. Bus. & Com. Code § 9.601,

9.609; Conseco Finance Servicing Corporation v. Lee, No. 14-03-01194-CV, 6/8/2004 (Tex.

Plaintiff's Motion for Summary Judgment, page 5
19
App.—Houston [14th Dist.] 2004, mem op., no writ)). Therefore, as a matter of law, the Plaintiff

is entitled to an award of possession of the manufactured home that is the subject of this lawsuit.

DEFEDANT MICHAEL SHEPPARD’S DEFENSES

15. The Defendant Michael Sheppard is the only Defendant who has asserted any affirmative

defenses in this matter. Defendant Michael Sheppard asserts the defenses of impossibility of

performance; failure to mitigate damages; and that he is entitled to an offset.

16. Defendant Michael Sheppard admits that he is not entitled to any offsets. See Exhibit D –

Response to Interrogatory 1. Therefore, this defense fails as a matter of law.

17. Defendant Michael Sheppard’s defense of impossibility of performance also fails as a

matter of law. See Exhibit D – Response to Interrogatory No. 3. To prove the defense of

impossibility of performance, a party must show that “a party’s performance is made impracticable

by the occurrence of an event the non-occurrence of which was a basic assumption on which the

contract was made.” Internacional Realty, Inc. v. 2005 RP W., Ltd., 449 S.W.3d 512 (Tex. App.—

Houston [1st Dist.] 2014). The only factual assertion that Defendant Michael Sheppard asserts in

support of his defense is “Defendant Gene Hawkins moved out in May 2022 and changed the

address on the monthly statements from CSL. CSL never informed defendants that the monthly

note payments had not been made since June 2022 by gene (sic) Hawkins until August 2022 at

which time CSL refused to accept and (sic) further payments on the note.” See Exhibit D –

Response to Interrogatory No. 3.

18. First of all, while the Defendant Alana Sheppard verified the above response, the Plaintiff

objects to the response because it does not show that Alana Hawkins had personal knowledge of

Gene Hawkins changing the correspondence address with the Plaintiff. Therefore, the evidence

should be stricken.

Plaintiff's Motion for Summary Judgment, page 6
20
19. Second, none of the Defendants ever changed the correspondence address with the

Defendant and all written communication from the Plaintiff was mailed to the manufactured home

occupied by Alana Hawkins. See Exhibit A.

20. Thirdly, even if the statement in the response was true and was valid evidence, it is not

evidence that show that Michael Sheppard is entitled to the defense of impossibility of

performance. This requires a showing that an event occurred and a basic assumption of the contract

was the non occurrence of that event. Gene Sheppard changing his address for communication was

never a basic assumption of the contract. Therefore, as a matter of law, it cannot support the

defense of impossibility of performance, Defendant Michael Sheppard has no evidence of this

defense, and the Plaintiff is entitled to judgment on the defense as a matter of law.

21. Michael Sheppard’s third and last defense, failure to mitigate, also fails as a matter of law.

Defendant Michael Sheppard asserts that he is entitled to this defense because “CSL refused to

allow defendants to cure any default caused by Gene Hawkins’ improper failure to pay on the note

during the months that he hid the lack of payments from defendants.” Exhibit D – Response to

Plaintiff’s Interrogatory 4. However, this directly contradicts the Defendants responses to the

Plaintiff’s Requests for Admissions 3-12, in which the Defendant Michael Sheppard admits that

he has not paid multiple monthly payments. See Exhibit B – Responses 3-12.

22. The elements of the defense of failure to mitigate are 1) the plaintiff's lack of diligence;

and 2) the amount by which the failure to mitigate increased damages. U.S. Restaurant Properties

Operating L.P. v. Motel Enters., Inc., 104 S.W.3d 284, 293 (Tex. App.— Beaumont 2003, pet.

denied); City of San Antonio v. Guidry, 801 S.W.2d 142, 151 (Tex. App.— San Antonio 1990, no

writ).

23. The Plaintiff is entitled to judgment on this defense as a matter of law because the

Plaintiff's Motion for Summary Judgment, page 7
21
Defendant Michael Sheppard cannot produce any evidence of either of these elements of the

defense. Furthermore, the undisputed evidence proves that the Plaintiff was diligent in attempting

to collect the debt. See Exhibit A. The Defendants Michael Sheppard and Gene Hawkins only ever

provided one address for communication with the Plaintiff, which was 4425 4th Street, Bacliff,

Texas 77518. All communications including all monthly statements were mailed to this address,

which is the undisputed address of Michael Sheppard and Alana Hawkins. Therefore, the credible

evidence proves that Plaintiff’s diligence in collecting the debt and entitles the Plaintiff to

judgment as a matter of law as to this defense.

24. In addition, a Court may grant a summary judgment as to liability only without an

adjudication of the amount of that liability. T.R.C.P 166a(a). The defense of failure to mitigate is

not a defense that changes the underlying liability. Instead, it is simply a defense that offsets the

amount of liability. Therefore, the Court may grant a summary judgment as to liability on the

breach of contract claim without addressing the Defendant Michael Sheppard’s defense of failure

to mitigate. The breach of the contract alone, without a determination of damages, entitles the

Plaintiff to a right of possession of the manufactured home that is the subject of this lawsuit.

PRAYER FOR RELIEF

WHEREFORE PREMISES CONSIDERED CSL requests that this Court enter judgment requiring

the sheriff or constable of the county in which the Collateral is located to seize the Collateral and

deliver possession of the Collateral to CSL; that CSL be granted a judgment against Gene Hawkins

and Michael Sheppard for any deficiency due under the Contract, costs of court, and interest; and

for such other and further relief CSL may be entitled in law or equity.

Respectfully submitted

Plaintiff's Motion for Summary Judgment, page 8
22
/s/ Daniel Denton
Daniel Denton
State Bar No. 24075843
6060 N. Central Expressway, Suite 500
Dallas, Texas 75206
Telephone: (972) 997-5309
Email: denton@lawyer-dfw.com

Attorney for CSL Financial, LLC.

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on June 6, 2023 a true and correct copy of the foregoing

document was served on all counsel of record/pro se parties who have made an appearance in this

matter.

/s/ Daniel Denton
Daniel Denton

Plaintiff's Motion for Summary Judgment, page 9
23
Exhibit
A
No. 22-CV-1906

CSL FINANCIAL, LLC, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § 405TH JUDCIAL DISTRICT
§
GENE HAWKINS, §
MICHAEL SHEPPARD, and §
ALANA HAWKINS. §
§
§
Defendants. § GALVESTON COUNTY, TEXAS

AFFIDAVIT OF COURTNEY GATES
THE CUSTODIAN OF RECORDS FOR PLAINTIFF

BEFORE ME, the undersigned authority, on this day personally appeared Courtney Gates,
a person whose identity is known to me. After being by me duly sworn under oath deposed and
stated under penalty of perjury:

1. "My name is Courtney Gates. I am over 18 years of age, of sound mind, and
capable of making this affidavit. The facts stated in this affidavit are within my personal
knowledge and are true and correct.
2. I am an employee of CSL Financial, LLC ("CSL"), and I am familiar with the
manner in which its records are created and maintained by virtue ofmy duties and responsibilities.
3. Attached are _ pages of records. These records are the original records or exact
duplicates of the original records.
4. It is the regular practice of CSL to make this type of record at or near the time of
each act, event, condition, opinion, or diagnosis set forth in the record.

5. It is the regular practice of CSL for this type of record to made by, or from
information transmitted by, persons with knowledge of the matters set forth in them.

6. The records were kept in the course of regularly conducted business activity.
7. It is the regular practice of the business activity to make the records.
8. CSL is the holder of a Promissory Note and Security Agreement executed on or

24
about 10/27/2017, which is attached hereto as Exhibit A.
9. As evidenced by the Promissory Note and Security Agreement and the Statement
of Ownership, attached hereto Exhibit B, CSL holds a perfected security interest in the following
manufacturing manufactured home:

Year and Make: 2015 Fleetwood
Model: 240VE16763V
Serial Number: PFS l 152357
Label/Seal Number: FLE240TX1536522A

10. CSL has performed all terms and conditions required by the Contract.

11 . A default exists under the Contract in that Defendants Gene Hawkins and Michael
Sheppard have failed or refused to pay amounts due and owing to CSL under the terms of the
Contract for at least the July 2023 and subsequent monthly payments up to the date of this
affidavit. Under the terms of the contract, the Defendants Gene Hawkins and Michael Sheppard
were supposed to pay timely monthly payments, but they did not.

12. Since the Defendants Gene Hawkins and Michael Sheppard had defaulted on the
contract, CSL sent the Defendants Gene Hawkins and Michael Sheppard a Notice of Default and
Right to Cure letter, attached hereto Exhibit C, which was mailed through the USPS by certified
return receipt requested and by regular first class mail on or about August 8, 2022.

13. The Defendants Gene Hawkins and Michael Sheppard failed to timely cure their
default under the contract by paying the unpaid amou

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