No. 01-15-00604-CV
FILED IN 1st COURT OF APPEALS In the Court of Appeals HOUSTON, TEXAS For the First District of Texas 11/4/2015 4:34:10 PM At Houston CHRISTOPHER A. PRINE Clerk
D&R Constructors, Inc., Michael Rushing, Stephanie Rushing, Penn Rushing, and Florence Rushing, Appellants, v. Texas Gulf Energy, Inc. on behalf of CS Bankers V LLC and Texas Gulf Fabricators, et al., Appellees.
Appeal from the 270th District Court of Harris County, Texas; Trial Court Cause No. 2013-00543; Hon. Brent Gamble, Presiding
Appendix to Brief of Appellees
Tab A Final Judgment (2 CR 977–979) B Summary Judgments for Fabricators and Hendry (1 CR 593; 2 CR 1967; 2 CR 1944–1945) C Summary Judgment for Smith (2 CR 1580) D Sanctions Order (2 CR 2025–2026) E Note (1 CR 407–410) F Deed of Trust (1 CR 421–438) G Loan Sale Agreement (1 CR 391–406) H Foreclosure Notices (1 CR 439–452) I TEX. PROP. CODE § 51.002 J TEX. PROP. CODE § 51.0075 Tab A Final Judgment (signed April 13, 2015) 2 CR 977–979 977 978 979 Tab B Summary Judgments (Fabricators & Hendry) 1 CR 593; 2 CR 1967; 2 CR 1944–1945 593 1967 1944 1945 Tab C Summary Judgment (Smith) 2 CR 1580 1580 Tab D Sanctions Order 2 CR 2025–2026 2025 2026 Tab E Note 1 CR 407–410 Tab F Deed of Trust 1 CR 421–438 Tab G Loan Sale Agreement 1 CR 391–406 Tab H Foreclosure Notices 1 CR 439–452 Tab I TEX. PROP. CODE § 51.002 § 51.002. Sale of Real Property Under Contract Lien, TX PROPERTY § 51.002
KeyCite Yellow Flag - Negative Treatment Proposed Legislation
Vernon's Texas Statutes and Codes Annotated Property Code (Refs & Annos) Title 5. Exempt Property and Liens Subtitle B. Liens Chapter 51. Provisions Generally Applicable to Liens
V.T.C.A., Property Code § 51.002
§ 51.002. Sale of Real Property Under Contract Lien
Effective: October 1, 2013 Currentness
(a) A sale of real property under a power of sale conferred by a deed of trust or other contract lien must be a public sale at auction held between 10 a.m. and 4 p.m. of the first Tuesday of a month. Except as provided by Subsection (h), the sale must take place at the county courthouse in the county in which the land is located, or if the property is located in more than one county, the sale may be made at the courthouse in any county in which the property is located. The commissioners court shall designate the area at the courthouse where the sales are to take place and shall record the designation in the real property records of the county. The sale must occur in the designated area. If no area is designated by the commissioners court, the notice of sale must designate the area where the sale covered by that notice is to take place, and the sale must occur in that area.
(b) Except as provided by Subsection (b-1), notice of the sale, which must include a statement of the earliest time at which the sale will begin, must be given at least 21 days before the date of the sale by:
(1) posting at the courthouse door of each county in which the property is located a written notice designating the county in which the property will be sold;
(2) filing in the office of the county clerk of each county in which the property is located a copy of the notice posted under Subdivision (1); and
(3) serving written notice of the sale by certified mail on each debtor who, according to the records of the mortgage servicer of the debt, is obligated to pay the debt.
(b-1) If the courthouse or county clerk's office is closed because of inclement weather, natural disaster, or other act of God, a notice required to be posted at the courthouse under Subsection (b)(1) or filed with the county clerk under Subsection (b)(2) may be posted or filed, as appropriate, up to 48 hours after the courthouse or county clerk's office reopens for business, as applicable.
(c) The sale must begin at the time stated in the notice of sale or not later than three hours after that time.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 51.002. Sale of Real Property Under Contract Lien, TX PROPERTY § 51.002
(d) Notwithstanding any agreement to the contrary, the mortgage servicer of the debt shall serve a debtor in default under a deed of trust or other contract lien on real property used as the debtor's residence with written notice by certified mail stating that the debtor is in default under the deed of trust or other contract lien and giving the debtor at least 20 days to cure the default before notice of sale can be given under Subsection (b). The entire calendar day on which the notice required by this subsection is given, regardless of the time of day at which the notice is given, is included in computing the 20-day notice period required by this subsection, and the entire calendar day on which notice of sale is given under Subsection (b) is excluded in computing the 20-day notice period.
(e) Service of a notice under this section by certified mail is complete when the notice is deposited in the United States mail, postage prepaid and addressed to the debtor at the debtor's last known address. The affidavit of a person knowledgeable of the facts to the effect that service was completed is prima facie evidence of service.
(f) Each county clerk shall keep all notices filed under Subdivision (2) of Subsection (b) in a convenient file that is available to the public for examination during normal business hours. The clerk may dispose of the notices after the date of sale specified in the notice has passed. The clerk shall receive a fee of $2 for each notice filed.
(f-1) If a county maintains an Internet website, the county must post a notice of sale filed with the county clerk under Subsection (b)(2) on the website on a page that is publicly available for viewing without charge or registration.
(g) The entire calendar day on which the notice of sale is given, regardless of the time of day at which the notice is given, is included in computing the 21-day notice period required by Subsection (b), and the entire calendar day of the foreclosure sale is excluded.
(h) For the purposes of Subsection (a), the commissioners court of a county may designate an area other than an area at the county courthouse where public sales of real property under this section will take place that is in a public place within a reasonable proximity of the county courthouse as determined by the commissioners court and in a location as accessible to the public as the courthouse door. The commissioners court shall record that designation in the real property records of the county. A designation by a commissioners court under this section is not a ground for challenging or invalidating any sale. A sale must be held at an area designated under this subsection if the sale is held on or after the 90th day after the date the designation is recorded. The posting of the notice required by Subsection (b)(1) of a sale designated under this subsection to take place at an area other than an area of the courthouse remains at the courthouse door of the appropriate county.
(i) Notice served on a debtor under this section must state the name and address of the sender of the notice and contain, in addition to any other statements required under this section, a statement that is conspicuous, printed in boldface or underlined type, and substantially similar to the following: “Assert and protect your rights as a member of the armed forces of the United States. If you are or your spouse is serving on active military duty, including active military duty as a member of the Texas National Guard or the National Guard of another state or as a member of a reserve component of the armed forces of the United States, please send written notice of the active duty military service to the sender of this notice immediately.”
Credits Acts 1983, 68th Leg., p.
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No. 01-15-00604-CV
FILED IN 1st COURT OF APPEALS In the Court of Appeals HOUSTON, TEXAS For the First District of Texas 11/4/2015 4:34:10 PM At Houston CHRISTOPHER A. PRINE Clerk
D&R Constructors, Inc., Michael Rushing, Stephanie Rushing, Penn Rushing, and Florence Rushing, Appellants, v. Texas Gulf Energy, Inc. on behalf of CS Bankers V LLC and Texas Gulf Fabricators, et al., Appellees.
Appeal from the 270th District Court of Harris County, Texas; Trial Court Cause No. 2013-00543; Hon. Brent Gamble, Presiding
Appendix to Brief of Appellees
Tab A Final Judgment (2 CR 977–979) B Summary Judgments for Fabricators and Hendry (1 CR 593; 2 CR 1967; 2 CR 1944–1945) C Summary Judgment for Smith (2 CR 1580) D Sanctions Order (2 CR 2025–2026) E Note (1 CR 407–410) F Deed of Trust (1 CR 421–438) G Loan Sale Agreement (1 CR 391–406) H Foreclosure Notices (1 CR 439–452) I TEX. PROP. CODE § 51.002 J TEX. PROP. CODE § 51.0075 Tab A Final Judgment (signed April 13, 2015) 2 CR 977–979 977 978 979 Tab B Summary Judgments (Fabricators & Hendry) 1 CR 593; 2 CR 1967; 2 CR 1944–1945 593 1967 1944 1945 Tab C Summary Judgment (Smith) 2 CR 1580 1580 Tab D Sanctions Order 2 CR 2025–2026 2025 2026 Tab E Note 1 CR 407–410 Tab F Deed of Trust 1 CR 421–438 Tab G Loan Sale Agreement 1 CR 391–406 Tab H Foreclosure Notices 1 CR 439–452 Tab I TEX. PROP. CODE § 51.002 § 51.002. Sale of Real Property Under Contract Lien, TX PROPERTY § 51.002
KeyCite Yellow Flag - Negative Treatment Proposed Legislation
Vernon's Texas Statutes and Codes Annotated Property Code (Refs & Annos) Title 5. Exempt Property and Liens Subtitle B. Liens Chapter 51. Provisions Generally Applicable to Liens
V.T.C.A., Property Code § 51.002
§ 51.002. Sale of Real Property Under Contract Lien
Effective: October 1, 2013 Currentness
(a) A sale of real property under a power of sale conferred by a deed of trust or other contract lien must be a public sale at auction held between 10 a.m. and 4 p.m. of the first Tuesday of a month. Except as provided by Subsection (h), the sale must take place at the county courthouse in the county in which the land is located, or if the property is located in more than one county, the sale may be made at the courthouse in any county in which the property is located. The commissioners court shall designate the area at the courthouse where the sales are to take place and shall record the designation in the real property records of the county. The sale must occur in the designated area. If no area is designated by the commissioners court, the notice of sale must designate the area where the sale covered by that notice is to take place, and the sale must occur in that area.
(b) Except as provided by Subsection (b-1), notice of the sale, which must include a statement of the earliest time at which the sale will begin, must be given at least 21 days before the date of the sale by:
(1) posting at the courthouse door of each county in which the property is located a written notice designating the county in which the property will be sold;
(2) filing in the office of the county clerk of each county in which the property is located a copy of the notice posted under Subdivision (1); and
(3) serving written notice of the sale by certified mail on each debtor who, according to the records of the mortgage servicer of the debt, is obligated to pay the debt.
(b-1) If the courthouse or county clerk's office is closed because of inclement weather, natural disaster, or other act of God, a notice required to be posted at the courthouse under Subsection (b)(1) or filed with the county clerk under Subsection (b)(2) may be posted or filed, as appropriate, up to 48 hours after the courthouse or county clerk's office reopens for business, as applicable.
(c) The sale must begin at the time stated in the notice of sale or not later than three hours after that time.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 § 51.002. Sale of Real Property Under Contract Lien, TX PROPERTY § 51.002
(d) Notwithstanding any agreement to the contrary, the mortgage servicer of the debt shall serve a debtor in default under a deed of trust or other contract lien on real property used as the debtor's residence with written notice by certified mail stating that the debtor is in default under the deed of trust or other contract lien and giving the debtor at least 20 days to cure the default before notice of sale can be given under Subsection (b). The entire calendar day on which the notice required by this subsection is given, regardless of the time of day at which the notice is given, is included in computing the 20-day notice period required by this subsection, and the entire calendar day on which notice of sale is given under Subsection (b) is excluded in computing the 20-day notice period.
(e) Service of a notice under this section by certified mail is complete when the notice is deposited in the United States mail, postage prepaid and addressed to the debtor at the debtor's last known address. The affidavit of a person knowledgeable of the facts to the effect that service was completed is prima facie evidence of service.
(f) Each county clerk shall keep all notices filed under Subdivision (2) of Subsection (b) in a convenient file that is available to the public for examination during normal business hours. The clerk may dispose of the notices after the date of sale specified in the notice has passed. The clerk shall receive a fee of $2 for each notice filed.
(f-1) If a county maintains an Internet website, the county must post a notice of sale filed with the county clerk under Subsection (b)(2) on the website on a page that is publicly available for viewing without charge or registration.
(g) The entire calendar day on which the notice of sale is given, regardless of the time of day at which the notice is given, is included in computing the 21-day notice period required by Subsection (b), and the entire calendar day of the foreclosure sale is excluded.
(h) For the purposes of Subsection (a), the commissioners court of a county may designate an area other than an area at the county courthouse where public sales of real property under this section will take place that is in a public place within a reasonable proximity of the county courthouse as determined by the commissioners court and in a location as accessible to the public as the courthouse door. The commissioners court shall record that designation in the real property records of the county. A designation by a commissioners court under this section is not a ground for challenging or invalidating any sale. A sale must be held at an area designated under this subsection if the sale is held on or after the 90th day after the date the designation is recorded. The posting of the notice required by Subsection (b)(1) of a sale designated under this subsection to take place at an area other than an area of the courthouse remains at the courthouse door of the appropriate county.
(i) Notice served on a debtor under this section must state the name and address of the sender of the notice and contain, in addition to any other statements required under this section, a statement that is conspicuous, printed in boldface or underlined type, and substantially similar to the following: “Assert and protect your rights as a member of the armed forces of the United States. If you are or your spouse is serving on active military duty, including active military duty as a member of the Texas National Guard or the National Guard of another state or as a member of a reserve component of the armed forces of the United States, please send written notice of the active duty military service to the sender of this notice immediately.”
Credits Acts 1983, 68th Leg., p. 3525, ch. 576, § 1, eff. Jan. 1, 1984. Amended by Acts 1984, 68th Leg., 2nd C.S., ch. 18, § 3(b), eff. Oct. 2, 1984; Acts 1987, 70th Leg., ch. 540, § 1, eff. Jan. 1, 1988; Acts 1993, 73rd Leg., ch. 48, § 5, eff. Sept. 1, 1993; Acts 2003, 78th Leg., ch. 554, § 2, eff. Jan. 1, 2004; Acts 2005, 79th Leg., ch. 533, § 1, eff. June 17, 2005; Acts 2005, 79th Leg.,
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 § 51.002. Sale of Real Property Under Contract Lien, TX PROPERTY § 51.002
ch. 555, § 1, eff. Sept. 1, 2005; Acts 2007, 80th Leg., ch. 903, § 2, eff. June 15, 2007; Acts 2011, 82nd Leg., ch. 252 (H.B. 1127), § 2, eff. Jan. 1, 2012; Acts 2011, 82nd Leg., ch. 592 (S.B. 101), § 1, eff. Sept. 1, 2011; Acts 2013, 83rd Leg., ch. 52 (H.B. 584), § 1, eff. Sept. 1, 2013; Acts 2013, 83rd Leg., ch. 161 (S.B. 1093), § 17.001, eff. Sept. 1, 2013; Acts 2013, 83rd Leg., ch. 642 (H.B. 699), § 2, eff. Oct. 1, 2013.
Notes of Decisions (871)
V. T. C. A., Property Code § 51.002, TX PROPERTY § 51.002 Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Tab J TEX. PROP. CODE § 51.0075 § 51.0075. Authority of Trustee or Substitute Trustee, TX PROPERTY § 51.0075
Vernon's Texas Statutes and Codes Annotated Property Code (Refs & Annos) Title 5. Exempt Property and Liens Subtitle B. Liens Chapter 51. Provisions Generally Applicable to Liens
V.T.C.A., Property Code § 51.0075
§ 51.0075. Authority of Trustee or Substitute Trustee
Effective: September 1, 2009 Currentness
(a) A trustee or substitute trustee may set reasonable conditions for conducting the public sale if the conditions are announced before bidding is opened for the first sale of the day held by the trustee or substitute trustee.
(b) A trustee or substitute trustee is not a debt collector.
(c) Notwithstanding any agreement to the contrary, a mortgagee may appoint or may authorize a mortgage servicer to appoint a substitute trustee or substitute trustees to succeed to all title, powers, and duties of the original trustee. A mortgagee or mortgage servicer may make an appointment or authorization under this subsection by power of attorney, corporate resolution, or other written instrument.
(d) A mortgage servicer may authorize an attorney to appoint a substitute trustee or substitute trustees on behalf of a mortgagee under Subsection (c).
(e) The name and a street address for a trustee or substitute trustees shall be disclosed on the notice required by Section 51.002(b).
(f) The purchase price in a sale held by a trustee or substitute trustee under this section is due and payable without delay on acceptance of the bid or within such reasonable time as may be agreed upon by the purchaser and the trustee or substitute trustee if the purchaser makes such request for additional time to deliver the purchase price. The trustee or substitute trustee shall disburse the proceeds of the sale as provided by law.
Credits Added by Acts 2003, 78th Leg., ch. 554, § 1, eff. Jan. 1, 2004. Amended by Acts 2005, 79th Leg., ch. 1231, § 1, eff. Sept. 1, 2005; Acts 2007, 80th Leg., ch. 903, § 4, eff. June 15, 2007; Acts 2009, 81st Leg., ch. 323, § 1, eff. Sept. 1, 2009.
Notes of Decisions (7)
V. T. C. A., Property Code § 51.0075, TX PROPERTY § 51.0075 Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1