ACCEPTED
03-15-00215-CV
5142601
THIRD COURT OF APPEALS
03-15-00215-CV AUSTIN, TEXAS 5/4/2015 3:48:42 PM
JEFFREY D. KYLE
CAUSE NO. -------- CLERK
IN THE COURT OF APPEALS OF TEXAS THIRD DISTRICT FILED IN 3rd COURT OF APPEALS
AUSTIN AUSTIN, TEXAS 5/4/2015 3:48:42 PM
PLAINTIFF'S ORIGINAL PETITION AND JEFFREY APPLICATION FORD. KYLE Clerk
EMERGENCY TEMPORARY RESTRAINING ORDER PENDING MOTION FOR REVIEW OF TRIAL COURT'S ORDER
Parties
1. Lenny Acevedo is the plaintiff in this action. Fannie Mae is the defendant.
Venue and Jurisdiction .
2. This court has jurisdiction over the controversy because the court has statutory jurisdiction to hear the matter. 3. Venue is proper in Travis County, Texas because the case plaintiff is asking for relief from an order that was issued by the Travis County Court at Law #2.
Facts
4. On May 1, 2015, an order was signed allowing for a writ of possession to issue on the property of Acevedo. The order is not available to Plaintiff, as the Travis County Clerk's office does not have it filed in the record and it could not be located. 5. The order was in response to a Motion to Challenge Insufficient Bond and for Issuance of Writ.
6. The judge did not determine the insufficiency of the posted bond, he determined there was no bond and allowed execution of his previous judgment to issue a writ. 7. The judge erred by not determining the sufficiency of the bond, and if defective, the setting of a sufficient bond and allowing defendant time to cure the defect.
Cause of Action
8. Because there was a posted bond to stay the execution of the judgment, if the writ is allowed to be executed, it will be an unlawful eviction. The unsigned letter dated April 17, 2015, asking for writ to issue alleges that "an appeal bond was not filed". I This is a false statement. 9. If he is unlawfully evicted, plaintiff will suffer irreparable harm.
Application for Emergency Temporary Restraining Order 10. Plaintiff petitions this court for an emergency temporary restraining order to stay the writ of possession pending the Court's judgment of his Motion for Review of Trial Court's Order, attached hereto. 11. It is probable that the court will determine the judge erred in issuing the order of execution.
I Exhibit I - Unsigned letter from Barrett Dafin Frapier Turner & Engel, LLP, attached hereto and incorporated herein.
12. If plaintiff's application is not granted, harm is imminent because the writ will execute and defendant will be evicted. 13. The harm that will result if the TRO is not issued is irreparable because plaintiff will be in the street. 14. Plaintiff has no adequate remedy at law because the writ has been issued, his property has been posted, and the eviction is imminent. 15. There is insufficient time to serve notice on the defendant and to hold a hearing on the application. 16. Plaintiff is willing to post bond if the COUlt deems it appropriate.
Request for Temporary Injunction 17. Plaintiff asks the court to set its application for TRO for hearing, and after hearing the application, issue a temporary injunction against defendant. 18. Plaintiff attaches a copy of the clerk's docket as Exhibit 2, for the perusal of the COUtt.
Prayer
For these reasons, plaintiff asks the court to issue an emergency temporary restraining order, restraining issuance of the writ of possession.
Respectfully submitted,
lsi James Minerve
James Minerve
State Bar No. 24008692
115 Saddle Blanket Trail
Buda, Texas 78610
(210) 336-5867
(888) 230-6397 (Fax)
Attorney for Lenny Acevedo
CERTIFICATE OF SERVICE
A true and correct copy of the attached Plaintiffs Original Petition and Application for Emergency Temporary Restraining Order as was sent by U. S. Postal service on May 4, 2015 to:
HOPKINS & WILLIAMS Mark D. Hopkins 12117 Bee Caves Road, Suite 260 Austin, Texas 78738
EXHIBIT 1
Filed: 4f2"/20- 5 5:58:08 PM Dana DeBe au voir
Travi-s County ClerK
BARRElT DAFFIN FRAPPIER 150{'" S'.;RVL \ OK UO! 'l E€:~llCV-15-000869 SlilTE tOO . p TURNER & ENGEL, LLP .\OOIS(lN. TI:x: ',S 1~'lOI A :1nanna erez r~L~Plltl.\'!: IQ-JI .1~(.·~o.ll'
A PAATNERSHIP INCLUDING TFI.F('orl~R IQ-!;3't ..~~15 PROFESSIONAL CORPORATIONS ATTORNEYS AND COUNSELORS AT LAW
FILED VIA E-FILING
April 27. lOI;
TRAVIS COUNTY CLERK P.O. Box 149325 Austin, Texas 78714-9325
Re: FEDERAL NATIONAL MORTGAGE ASSOCIATION, tVIvA fA. NIE ?\IAH vs,
LENNY ACEVEDO AND ALL OrnER OCCUPANTS OF Case # C-1-CV-15-000869 1108 FOX SPARROW COVE PFLUGERVILLE, TEXAS 78660 Cause No.: C-1-ey-lHOO862 llllllllnlllllll~11111111111111111I111111111II1 ......... _-_._ ... 111I
Greetings:
Judgment for Possession was previously granted in favor of the Plaintiff in the above r~rl!ICIlCCcJ matter 011APRIL 2,_mtj, and an appeal bond has not been filed. Please immediately issue a Writ of'Possession against the Dcfcndam and unyand :)11occupants of the property located at the address stated above. Please have the Constable serve the Wril immediately upon lts issuance and tODtaet our Eviction Department at 1-800-266-262610 schedule a move out <IfId/llr ';0 advise us if the property becomes " icant, In order to implement this set out, we are kindly requesting 48 hours notification p.io- to your scheduling of the cxccutior JI'lh~ writ.
Respecuully
BARRErr IJAFI'I:--JFRAI'PII::R 1'l_!RNI~:R & ENGEL, LLP
Attorneys for Plaintiff
BDFTEII:: 00000002397453
EV_WritOfPossession.rpt (10/17/2014) I Ver-37
EXHIBIT 2
TIME: 08:3345 AM
TRAVIS COUNTY, STATE OF TEXAS DATE: May 4,2015
P. O. BOX 149325
PAGE: 1
AUSTIN, TeXAS 78714·9325
C.1·CV.16.000869 FEDERAL NATIONAL VS L ACEVEDO PARTY:
COURT/JUDGE: CC2 COUNTY COURT AT LAW ##2 STATUS: DO DISPOSED FILING DATE: 01·29·2015 CASE TYPE: CJP CV J P APPEAL DATE CASE ENTERED: 01·29·2015 EVENT CATEGORY:
PERIOD: TO
DATE PARTY EVENT RECEIPT ## AMOUNT _::'=--.::::::=';. ',=::' :'::':::::::'.':!'.="O: .•~':-=:.=:!::: :',,;:~=-_:.-::=.: ;:':::::::~':'~'=:'::':::::= :-::::: r- ;::;:;:-: .
01·29·2015 PL 1 ASM:CV JP APPEAL FILING $257.00
Create New Case and Assess/Walve • Assessment Event
01·29·2015 PL 1 ORD:CV CASH BOND ORDERED $500.00
01·29·2015 PL 1 OPN:CV JP APPEAL FILED
01·29·2015 PL 1 ISS:CV NTC OF APPEAL AND COSTS
01·29·2015 OF 1 ISS:CV MONEY ON DEPOSIT LTR
01·29·2016 PL 1 PMT:CV CASH BOND PAYMENT C 111621 $·500.00 Received Of: FEDERAL NATIONA Memo: TRAVIS CO JP 2
_._ .._--_._------_._._. __ ._._--_ -- _ - '"
02·04·2016 NTC:CV APPEAL & COST RETURNED
02·05·2016 ._---
PLD:CV LEneR
__ -----
.
TO CLERK
. -_ _. - _.. .... _ _ - _ .
02·06·2016 PL 1 ASM:CV CIVIL FILING FEE $257.00 BARREn, DAFFIN
02·05·2015 PL 1 PMT:CV CIVIL FILING FEE C 111731 $·257.00 Received Of: BARREn, DAFFIN Memo:
-_.-._-_._------
02·26·2016 PLD:CV ENTRY OF APPEARANCE
._--------. __ . - .. __ ... - -- ..._ ... -....... -.__ ..... ..__ .... - .. - ..- ..
"
02·26·2015 NTC:CV FILING RECORDS & AFFID
02·26·2015 NTC:CV FILING RECORDS & AFFID
._-__ - -----_._ .... "--- .. __ ..
02·26·2016 NTC:CV SEnlNG
TIME: 06:33:46 AM
TRAVIS COUNTY, STATE OF TEXAS DATE: May 4,2016
p, 0, BOX 149326
AUSTIN, TEXAS 76714·9326 PAGE: 2
C.1·CV.15·000888 FECERAI. NATIONAL vs I. ACEVEDO PARTY:
COURT/JUDaE: CC2 COUNTY COURT AT I.AW #2 STATUS: DO DISPOSED FILING DATE: 01·29·2016 CASE TYPE: CJP CV J P APPEAL DATE CASE ENTERED: 01·29·2016 EVENT CATEGORY:
PERIOD: TO
DATE PARTY EVENT RECEIPT # AMOUNT In 2&1.:;::- .. ;-$ a... aWiM A-ab ,....~~ltl;q~t:';,Ul'l' I' ( " ... ~ .. llf1,.....'II'·,;~,:r •• llf'lHlO\E">'·-;.V'
03·09·2016 PL 1 ASM:CV JP APPEAL FILING $·257,00
Oupllcate entry, requealed vcid by Michelle Bryant 3/9/2016 CB
03·2302015 PLD;CV FAA DOCKET CALL
03·23·2015 OF 1 PLO:CV ANSWER
03·23·2015 PLO:CV ENTRY OF APPEARANCE
03-30·2015 ---------------- EMS:CV JUDGE'S ACTION ..... ~-. - . _"
CASE TAKEN UNDER ADVISEMENT: TBCIWOP PARTIES APPEARED BY AND THROUGH COUNSEl. ONLY, dl,/2PM SHORTDKT
03·31·2015 OF 1 PLD:CV PLEA TO JURISDICTION
04·02·2016 EMS:OV JUOGe'S ORDER
FINAL JUOGMENT AFTER NON·JURY TRiAL:
dill))
04·03-2016 CT:CV STAFF ATTORNEY NOTES
OTHER:
Emelled to counael for Plaintiff, Mr, Hopkin" Judgment in this matter and Instructing him to serve the Judgment on Mr, Minerve,
JJ
04·06·2016 OSP:CV JUOGMENT WRIT OF POSS
04·06·2015 MSC:CV ORO TO DISe SENT ACCTNG
04·06·2016 OF 1 ISS:CV NOT OF JOG RULE 306
TIMe: 08:33:46 AM
TRAVIS COUNTY, STATe Of! TeXAS OATe: M@y4,2015
P. 0, BOX 14932G
AUSTIN, T~XA6 7Q714-9~211 PAOE, 3
Q·1·QV.1,.OOOIOt FeDeRAl. NATIONAl. VO I. Aceveoo PARTY:
OOURl'INOOE: C02 COUNTY COURT AT I,.AW ~2 STATUS: 00 OIS~08SP FI~ING DATe: 01·as·a010 CASS TYPel: CJP CV J f) APPj;!AI, DATE CASE eNTeRED: 01·28·2010 EVENT CATEGORY:
PIiRIOt?: TO
PI. 1 AeM:OV COpy pea CI.ERK MAKES $2.00 HOPKINS & WILLI
04·08·2010 PI.O:CV LETTER TO CLERK
04·08·2010 PI. 1 PMT:OV COPY FEe OLERK MAKeS P 26604 Rooolvod 01: HOPKINS & WILLI Momo: 04807797
04·08·2010 PI. 1 DSB:OV OASH BOND DISBURSEMENT $4'10,00
DISBUReeo '47G.OO OK 114770 PJlld 10Iho ordor 01:Foder.' Nilion.' Mort, Anoo O·I,OV·10·000889 Bond R.'und
04·09·2010 PLO:OV NOTIOE OF APPEAL ~RD OT
MSO:CV ReO FOR REPORTERS RECRD
04·01)·2015 PLO:CV LETTER TO OLERK
04·09·2010 PLP:OV NOTIOe OF APPEAL 3RD OT NOTloe OF APPEAL
04·1Q.2010 MSO:CV ASSIGNMENT OF APPEAL ASSIGNED TO: GUY D'ALESSIO PLO:OV FILE COPY OF LETTER
04·17·2010 MOT:OV OTHER
MOTION TO OHALLENGE INSUFFICIENT BONO AND FOR ISSUANCE OF WRIT
04·20·20111 NTC:OV HeARING
TIME: Oe:J~:4~ AM
TRAVIS OOUNTY, STATe; OF' TEXAS OArR: MilY ii, a010
~, 0, aox 14Qa26
AUSTIN, TSXM '7G'i'11\.1l~2ij FWJ15: 1\
C.1.eV·1O·000IOi FEOSRAL. NATIONAl. VB L A@eVC!Clo ~ARTY:
OOURTfJUOGE: 002 CeUNiY COURT AT LAW tl2 STATUti: 00 tllfiFOSEP rl~ING DATE: 01·ge·a015 (lASt:! TYFEI: CJP OV J P APFlI!AL QATE CASt: I;NTEREO: 01·2e·~01l!
eVfi!NT CATEGORY:
PlaRIOr;l: TO
FlW:OV PAX DOCKeT OALL
OF 1 PL.O:OV OT APPISALS APPID INAIlIL
04·27·2016 PL 1 ASM:OV WRIT OF POSS OR SiClUES $6,00 PARRt:TT DAFFIN
FI. 1 ASM:CV SI:RVICIiS WRIT OF POSSIaSS $100,QO BARRETT OAFFIN
PLO:CV LETTER TO OLf!RK
PL 1 PMT:CV WRIT OF PO~S OR SEQUjiS $·MO Rfloolvlld Of: fJARReTT DAFFIN Memo: 00003&37
PI. 1 FMT:OV SERVICE WRIT OF POssess $·160,00 RocolVlld Of: BARRETT DAFFIN Momo: ooooaen
04·3Q·2010 OF 1 ISS:OV WRIT OF POSSESSION CONGTA6LE II
CAUSE NO. ----------------
IN THE COURT OF APPEALS OF TEXAS THIRD DISTRICT
AUSTIN
MOTION FOR REVIEW OF TRIAL COURT'S ORDER from
CAUSE NO. C-I-CV-15-000869
FEDERAL NATIONAL MORTGAGE § IN THE COUNTY COURT ASSOCIATION A/KJ A FANNIE MAE, § Plaintiff, § AT LAW NO. 2 §
v. § LENNY ACEVEDO ET AL § Defendant. § TRAVIS COUNTY, TEXAS
Lenny Acevedo files this Motion for Review of Trial Court's Order. In support of his motion, Acevedo will show the following:
Acevedo was sued twice by Fannie Mae for forcible detainer. Acevedo cited the two year statute of limitations as his defense. The judge in the justice COUlt
ruled in favor of Acevedo both times. In this instance, Fannie Mae appealed the second judgment for a trial de novo to county COUlt.
The trial was held on March 30, 2015, and the judgment of the COUlt was signed on April 2, 2015 and filed in the record on April 6, 20151• On April 9, 2015, seven days after notification of the judgment, Acevedo noticed the clerk of
1 Exhibit I - Judgment, attached hereto and incorporated herein.
Motion for review Page 1
his intention to appeal'. In its order, the court had not set a supersedeas bond amount, so Acevedo posted a $500 supersedeas surety bond3 at that time, in order to supersede the execution of the judgment.
The judgment of the county court may not be stayed unless within 10 days from the judgment the appellant files a supersedeas bond, and because the signed judgment was not recorded until April 6, Acevedo did not have time to petition the court to set a bond amount, so he filed a $500 supersedeas bond in order to stay execution.
The bond was posted in the registry of the court and the writ was stayed.
The clerk did not contest the bond.
On April 24, 2015, Fannie Mae filed a motion to challenge insufficient bond and for issuance of writ". The hearing for this motion was held on May 1,2015.
At the hearing, Judge Shepperd stated that he had not set a bond amount and therefore, there was no bond in the record. Judge Shepperd reasoned that if he had not set a bond amount, there could be no bond.
Judge Shepperd did not rule on the insufficiency of the bond, and ordered that the writ should issue pursuant to Tex.R.Civ.P. 24.
The hearing was set for 9:00 a.m., and a writ of possession was issued by the court at 8:00 a.m .., hours before the judgment in the case. When Appellant
2 Exhibit 2 - Notice of Appeal, attached hereto and incorporated herein. 3 Exhibit 3 - Surety bond, attached hereto and incorporated herein. 4 Exhibit 4 - Motion to challenge insufficiency, attached hereto and incorporated herein.
Motion for review Page 2 returned to his home after court, a 24 hour notice to vacate was posted to his front door. The notice was posted at 8:50. This was before the hearing started.
ISSUES FOR REVIEW
ISSUE 1
Did the COUlt rule on the motion before it?
ISSUE 2
If the trial court, in a trial for possession, did not set an amount of supersedeas bond, does Appellant have the right to post a supersedeas bond within ten days from judgment to stay execution of the judgment?
ISSUE 3
Whether, on May 1, 2015, the trial COUlt had jurisdiction to amend its judgment by setting a sufficient bond?
ISSUE 4
Whether a COUlt can issue process based on a judgment that has not yet been issued?
ARGUMENTS AND AUTHORITIES A supersedeas bond is part of the right of appeal. The court, by not setting a supersedeas bond amount, denies Appellant the right to stay the judgment of the court as it pertains to execution of a writ.
"The supersedeas bond is part of the right of appeal and is only intended to indemnify the judgment creditor from losses caused by delay of appeal. State v.
Motion for review Page 3
Watts, 197 S.W.2d 197 (Tex.Civ.App.-Austin 1946, writ refd) Muniz v. Vasquez, 797 S.W.2d 147 (Tex.App.-Houston, 1990).
The trial court is obligated to extend all rights of due process to all parties.
In order to achieve this in a forcible detainer appeal, the cOUl1must set an amount for supersedeas bond in its judgment. To fail to set an amount, the cOUl1has denied rights to which an appellant is entitled.
If the trial court does not set an amount for supersedeas bond in a hearing for possession, it denies Appellant the right to supersede enforcement of the judgment. The setting of the amount of bond in a suit for possession should be an automatic inclusion in any judgment for possession.
""A law which practically takes away from either party to litigation the right to a fair and impartial trial in the courts provided by the constitution for the determination of a given controversy, denies a remedy by due course of law". Dillingham v. Putnam, 109 Tex.1, 14 S.W.303 (Tex. 1890) The Dillingham cOUl1 went on to hold that a legislative act making the right of appeal depend on the giving of a supersedeas bond, without reference to the appellant's ability to pay, was unconstitutional. Id. 14 S.W. at 305.
In the absence of an amount for supersedeas bond, Appellant filed a $500 surety bond. Appellant had no idea as to what a properly sufficient bond would be, but since time was of the essence, was able to find two sureties to sign a surety
Motion for review Page 4 bond in the amount of $500. Appellant also knew that if the bond was not sufficient or defective, Fannie Mae had the right to petition the court for a higher amount of bond. The $500 bond was filed and the court accepted the bond.
Appellant had a right to file a bond to stay execution. In the absence of an amount set by the court, if he had not filed a bond, he would have waived his right.
At the hearing on the bond, the court did not determine that the bond was defective or insufficient. Judge Shepperd stated that ten days had passed since his judgment, and he therefore could not now set a bond amount.
The court erred when, after motion and argument that the bond was insufficient, it did not determine that there was a bond, the bond was insufficient, set a sufficient bond amount and allow time to cure the defect.
At the hearing on the Motion to challenge insufficient bond, Judge Shepperd stated that he did not have jurisdiction to set a bond because it was more than ten days after judgment. The judge erred, pursuant to the Texas Appellate Rules, the court maintains plenary power to set a sufficient bond when the sufficiency of the bond is challenged. Tex.R.App.P. 24.3(a)(1).
The trial court, even if its plenary powers had expired, maintains the jurisdiction to amend its judgment. "Even after the trial court's plenary power expires, the trial court has continuing jurisdiction to order the amount and type of security and decide the sufficiency of the sureties." Tex.R.App.P. 24.3(a)(1); see
Motion for review Page 5
Whitmire v. Greenridge Place Apartments, 333 S.W.3d 255 at 260 (Tex.App- Houston [1st Dist.] 2010, pet. dism'd); In re MVG., 285 S.W3d 573, 575 (Tex.App.-Waco 2009)(order abating appeal) (per curium)("And if the judgment is superseded, the trial court nevertheless retains 'continuing jurisdiction' to evaluate the adequacy of the security required to supersede the judgment."_ Miller v. Kennedy & Mishew, Prj'l Corp., 80 S.W.3d 161, 164 (Tex.App.-F011 Worth 2002, no pet. )(holding that trial court possesses authority after the expiration of its plenary power to review the sufficiency of sureties on a supersedeas bond). Thus, if the bond in the present case was a supersedeas bond, the trial court had continuing jurisdiction to review the amount of the bond and the sufficiency of the sureties. See Tex.R.App.P. 24.3(a)(1). Cox v. Simmonds, Tex.App.-Corpus Christi 2015).
In the instant case, the court was noticed by motion that the supersedeas bond was insufficient. The motion recognizes the fact that there is a supersedeas bond filed, notwithstanding an insufficient amount. The court erred when it ruled that because the court had not set the supersedeas bond amount, there was no bond. Rather, the court was obligated to rule on the insufficiency, amend his judgment, set a sufficient bond amount and allow Acevedo time to cure his defect.
To determine that there was no bond is in direct contravention to the evidence in the record that a bond was filed, and constitutes judicial error.
Motion for review Page 6
The court had an obligation, if there was a complaint of insufficiency, to set the amount sufficient to supersede execution of a writ and allow Appellant time to cure by posting a sufficient supersedeas bond.
When the bond was challenged on the grounds of insufficiency, the court is to determine 1) whether the bond was insufficient, 2) what amount of bond would be sufficient, and 3) allow five days to cure the defective bond. Ashley Furniture Industries Inc, v. Law Office of David Pierce, 311 S.W.3d 595, (Tex.App.-EI Paso, 2010).
When the trial court is called upon to review the sufficiency of the sureties on a supersedeas bond, that review is conducted de novo. The trial court is to decide the sufficiency of the sureties or the insufficiency of the bond. The court must hold an evidentiary hearing to determine the sufficiency of the amount and type of security and the sufficiency of the sureties. Lamar County Elec. Co-op. Ass'n, 51 S.W.3d 801, 805 (Tex.App.-Texarkana 2001, pet. denied)(recognizing trial court may determine sufficiency of sureties on supersedeas bond).
In this case, the court did not determine the sufficiency of the bond. Rather, it determined there was no bond and therefore a writ could issue. Appellant is not able to provide a copy of the order issued on May 1, 2015, as it is not yet in the record of the court.
Motion for review Page 7
If the bond was defective, as it appears it may have been, the court must then determine the sufficient amount of supersedeas bond and enter an order giving Acevedo twenty-one days to file an amended supersedeas bond. Miller v. Kennedy & Minshew, 80 S.W3d 161 (Tex.App-Fort WOlih, 2002).
"-concluding supersedeas bond was insufficient to protect judgment creditors and citing Rule 24.1 (e), holding "the trial court is required to order the specific action it deems necessary to adequately protect the judgment creditor." Huff Energy Fund, LP v. Longview Energy Company, No. 04-12-00630-CY, (Tex.App.-San Antonio, 2014).
"The county court therefore had the authority to modify the amount of the supersedeas bond after the expiration of its plenary power." Whitmire v. Greenridge Place Apartments, No. 01-06-00963-CY (Tex.App.-Houston [1 st District], 2007).
SUMMARY
Acevedo had a right to post a surety bond even though the court had not included an amount for supersedeas in its original judgment.
When a court has a motion before it, the court must rule on that motion and no other. In the case of a motion for insufficient bond, the matter is handled de novo. At that point, the court looks only to the motion before it and determines the issue before it. That was not done in this case.
Motion for review Page 8
The motion for insufficient bond, which was before the court, asks that because the Defendant had failed to post an appropriate bond in accordance with Tex.R.Civ.P. 24, a writ should issue. This is a defect in the pleadings and a judicial impossibility to grant a writ pursuant to Tex.R.Civ.P. 24.
Tex.R.Civ.P. 24 is Duty of Clerk. Tex.R.App.P.24 is suspension of enforcement of judgment pending appeal in civil cases. When challenged with the insufficiency of a bond, the court must rule on that insufficiency and determine what the sufficient amount to protect the creditor while on appeal is, and allow the time to cure the defect.
The issue before the court was not that no bond was posted and therefore, judgement could not be stayed. The motion was for insufficiency of the bond.
The COUlt erred in not determining the matter before it, which was: was the bond insufficient? If it is determined that the bond is insufficient, the COUlt must set a sufficient amount, and give the party time to post a sufficient bond.
The court erred by not ruling on the issue before it and allowing Acevedo time to cure any defect.
The writ was issued by the clerk of the court at 8:00 a.m. April 30, 2015 and posted at 8:50 a.m. on May 1, 2015, the day of the hearing. The judgment in the
Motion for review Page 9 hearing wasn't issued until close to 10:00 a.m ..5 Until the order of the court was issued, the $500 supersedeas bond had not been determined to be insufficient and therefore superseded the execution of a writ. This is impropriety at the very least.
PRAYER
Lenny Acevedo prays that this COUlt consider the facts and the law and reverse the judgment of the COUltand render this case for rehearing to set a sufficient supersedeas bond amount with time to cure.
Respectfully submitted,
/s/ James Minerve
James Minerve
State Bar No. 24008692
115 Saddle Blanket Trail
Buda, Texas 78610
(210) 336-5867
(888) 230-6397 (Fax)
Attorney for Lenny Acevedo
CERTIFICATE OF CONFERENCE
Due to the exigency of the time limitations on filing this motion, during the week end, I was unable to contact Mark Hopkins to confer as to his consent or disagreement about filing this motion.
/s/ James Minerve
CERTIFICATE OF SERVICE
5 There is no order in the record of the as of May 4, 2015 at 9:00 a.m., and parties were not given a copy of the order.
Motion for review Page 10
A true and correct copy of the attached Motion for Review as was sent by U.
S. Postal service on May 4, 2015 to:
HOPKINS & WILLIAMS Mark D. Hopkins 12117 Bee Caves Road, Suite 260 Austin, Texas 78738
lsi James Minerve
Motion for review Page 11
EXHIBIT 1
CAUSE NO. C~1-CV-15·000869
FEDERAL NATIONAL MORTGAGE § ASSOCIATION AJIKJA FANNIE MAE, § Plaintiff, § §
V. § §
LENNY ACEVEDO AND ALL § OTHER OCCUPANTS OF 1108 § FOX SPARROW COVE, § PFLUGERVILLE, TEXAS 78660 § §
Defendant(s). §
occupants of 1108 Fox Sparrow Cove, Pfl
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CK C, KUEMPEL TRACT PHASE 3, SECTION FIVE, AN -
TRAVIS COUNTY, TEXAS, ACCORDING TO THE PLAT
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a~'-4U'RD IN VOLUME 2002, PAGE 318, TRAVIS COUNTY, TEXAS.
FURTHER ORDERED that Plaintiff have and recover from Defendants reasonable attorney's fees at the trial court level in the amount of $1,000.00, which may be collected from the bond posted by defendant, if any, payable immediately by the Clerk of the Court upon presentation of this order, together with reasonable attorney's fees if the case is
JUOGMBNT H609·15/ Acevedo Page 1
------------------------------------_.
unsuccessfully appealed to the Courts of Appeal in the amount of $2,000.00, reasonable attorney's fees if the case is unsuccessfully appealed on writ of error to the Supreme Court of Texas in the amount of $3,500.00, and if writ is granted by the Supreme Court but the appeal is unsuccessful, reasonable attorney fees in the amount 0£$2,500.00.
IT IS FURTHER ORDERED that plaintiff recover from the D~S) co~~t court, for which let execution issue. /" ~
ALL RELIEF NOT EXPRESSLY ~~NTED HEREIN IS ~~~.
SIGNEDthiS~YOf ~J SUBMITTED BY:
IUDGMBNT H609·15/ Acevedo Page 2
EXHIBIT 2
Filed: 4/9/201510:45:57 PM Dana DeBeauvoir
Travis County Clerk
CAUSE NO. C-I-CV-1S-000869 C-1-CV-15-000869 Adrianna Perez
FEDERAL NATIONAL MORTGAGE § IN THE COUNTY COURT ASSOCIATON AIKIA FANNIE MAE § Plaintiff § §
v. § § AT LAW NO. 2
LENNY ACEVEDO and ALL § OCCUPANTS OF 1108 FOX SPARROW § COVE, PFLUGERVILLE, TEXAS 78660 § Defendants. § TRAVIS COUNTY, TEXAS
NOTICE OF APPEAL
Lenny Acevedo notices this Court of his Notice of Appeal to the 3rd Court of Appeals,
from the Judgment issued on April 2, entered in the clerk's record on Apri16, 2015. I
I
Respectfully submitted,
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the Notice of Appeal was sent on AprU9, 2015 by U. S. Postal Service to:
Mark D. Hopkins HOPKINS & WILLIAMS, PLLC 12117 Bee Caves Rd., Suite 260 Austin, Texas 78738
EXHIBIT 3
Filed: 4/9/201510:45:57 PM Dana DeBeauvoir
Travis County Clerk
CAUSE NO. C-I-CV-lS-000869 C-1-CV -15-000869 Adrianna Perez
FEDERAL NATIONAL MORTGAGE § IN THE COUNTY COURT ASSOCIATION AlKJA FANNIE MAE § Plaintiff § §
v. § § AT LAW NO. 2
LENNY ACEVEDO and ALL § OCCUPANTS OF 1108 FOX SPARROW § COVE, PFLUGERVILLE, TEXAS 78660 § De~ndantL § TRA VIS COUNTY, TEXAS
KNOW ALL MEN BY THESE PRESENT,
THAT, WHEREAS, judgment was rendered on the 2ndt day of April, 2015, in the . .
County Court of Law #2 of Travis County and State of Texas, in favor of Federal National Mortgage Association and against Lenny Acevedo and all other Occupants in Cause No. C-I-CV-lS-000869 for possession, from which judgment the said, Lenny Acevedo desires to appeal to the 3rd Court of Appeals at Austin, Texas. NOW THEREFORE; I, the said appellant Lenny Acevedo, as principal, and .6iJ~",X" f?c.Jy and Cu,'I/lOna &Ny4 as Sureties, acknowledge ourselves bound to pay to the Appellee Federal National Mortgage Association, the sum of $500.00, conditioned. that said appellant shall prosecute his appeal to effect, and shall pay off and satisfy the judgment which may be rendered against him on said appeal.
Witness our hands this q rh day of April 9, 2015
~k.(kj
Le Acevedo Principal
Surety
The State of Texas } }SS
County of Travis }
AFFIDA VIT OF SURETY
['~I ' do swear that I am worth, in my own right, at least the sum of $500.00, after deducting from my property all that which is exempt by the Constitution and Laws of the State from forced sale, and after the payment of all my debts, and after satisfying all encumbrances upon my property which are known to me; that I reside in -:rrA.LI', ~ County and have property in this State liable to execution worth said amount or more.
SWORN TO AND SUBSCRIBED BEFORE ME this rzt\-l. day of April_1, 2015
KevjN 81ERWIRlH
Not~/V PubP~, Stdle 01 Texos My com, miSSIon Elrp'!itt .
Oc 01)" 21.201'7 1
otary Public of the State of Texas The State of Texas } }SS
County of Travis }
AFFIDA VIT OF SURETY
I,C;:,'llgw" ~L...do swear that I am worth, in my own right, at least the sum of $500.00, after deducting from my property all that which is exempt by the Constitution and Laws of the State from forced sale, and after the payment of all my debts, and after satisfying all encumbrances upon my property which are known to me; that I am a property owner in 7f"?AVI :..S County and have property in this State liable to execution worth said amount or more,
SWORN TO AND SUBSCRIBED BEFORE ME this ~ fk day of April t,2015, kEVIN .'f~WIRtH
Noto/y PubllQ, 81QI. 01 Te)(o• .... "" ...... ,'.. MV CommJUIQh bpIJe, Oof~b.r21, 20U
Notary Public of the State of Texas
I hereby approve the foregoing Bond, this _ day of April, 2015
County Clerk
ACOT NOI "-9225
PAl 1,80 AUSTIN TX
000000006668 TX48036 Mar 31 • 1:29pm ~~':W.~~Sut:Ob'a'k1fQty:2rtQO'~~'~"J'H~li' ~I~..f ....·~#~,., ...··~·,.~\',A\~'\iiI· ,.' I}.-, ,',.. J
MAR31 ATM TXN FEB 1. 50 11775.95 ... MAR._3" • JATH"lfVl'HDAAWAIf~ ....,..~~· ',W' ~,;t;; ".-; ,,··~i.,~~;,@, '~02.\.00 '\< ( .... 11573;96 PAl ISO AUSTIN TX
~Ai~~"'.~'&1~OOOOOO(j06f)69~I1'X48036 'IHar'31 '>!iH{i·29t>m~.· ~~~~"'I*),,*,~f~ "~'.\ll'i!,fio<'!"
Surcharge 2.00
1'l4ARal%9'ATM~;~pa.B.~"'l'I·,'f. t.'.,~.. ,.".' ,.,·v'~'-\' .:~ '~t;; • 1'1,572-146 MARlO' DEBIT PURCHASE 11563.80 '~~f!If"t',· iXAOOf03·59.'728tO~·WPPLUGBRVltJLE" TXI':I '~'H~ • ~}Nd", ,n!, "
• 508900029974 12345678 Mar 30 ''''MAR~l{(1IDBBllAi>tIRcntASlk~I.iJ.''''·Y;'~ J-i;lr " •.~ ::. I' .'. 4;t;." 11" .." 321.74 1-1242.06 VZWRLSS.IVR VN 800-922-0204 NJ !!!:".~"l4"'::V~" 09·00002-89'15..11234.S6?8~Mari>31'ii· .: . 1'" ,J",...
~.
MARl 1 CHARGE PEB - PAPBR STATEMENT FBE 2.25 1123~.. ;&1, ~~ .."'!I,~. ~~ 'p.! ,.11' .J:j. •• ~', ~'A,. v .1,,1· .... e.-,~ r '!"'iJ"-t j \! ·~'!""""»t;c,:'" t'" \ ....... J.'.,...,.h .. •
Cleated Share Draft Rec~p .~ '1" :'f.\~'t~Dt'i(f,~...-·c'·Oate;l • ~ .l>'''·tAII\b{h'at; "'IDrtl6ti"'# "~D.a~~",¢i, ~W~AiI\i5unt;. Di"iifb' It <'Dat.e Atnourfb
. ,).l'HJun1;i.l,,~ " ,!98.OA>;'U'l'6ji.·· . ,MARt6 >':I» yil~r9.0 '00 /,:,1-194 i'~.'lli1l~1lLd'1:S9::f • ,IMAR23 78.'84 1160 MAR95 155.12 *1167 MAR18 505.00 1195 MAR2l jOOO.OO ~N"'...·.~~~-;U:61~· "'HARl2·"· i""j'nOfOOt .·1'1'681>'" oiMARt8'l~':Y' 600 00, ·1'196 'AAR:ro, 1600~00 -1163 MAR13 100.65 *1193 MAR18 45.00 ~197 MARlO ' .. '
1900.00
1-------------------------------------------------------------------1 -e-,.. I",~." jll', '.' 'l t ..., _ I ~.-l I Total ·fot' I Total I I I this period I year-to-date I ~'~ ..'; 1.,. ........... ~,.~ ~·~;~"r~-';' Ji:l~':':'" _ .. ~~ - ~ ~ ~ ~. -.- ~ -I .... 41,. ':"-.~'""'~" ,!~,!,~_-c.; I ...:..··""".. " .. ~ .. ,.~ .. :.~.I ITotal OVerdraft Fees 1 0.001 0,001 V,;l,.".)~It,!t" 1.I1'Ot:a1.
1!tetUj'ne'd(Itelil"PetJ'S':,\\ ; • -•..•.•• 1 ,'," ,',.0 00 I .O~00 I 1-------------------------------------------------------------------1 • I
-----------------------SUMMARy-----------------------
M~·~'1I-"~ .....,...4' '~t ~ ~""'.!~,r.,... r- ,,~,. • :'.". ":~'. '. - j
Previous Balance as of 01 MAR 15 .
Total of 12 Share Drafts for . 8422,65 -
Total of, 1~0 Oth'E!J;"
Debits fo): . 9461.54 -
Total of 18 Deposits for"., ,.,. 1493.50 + ,., Total o'f 2 other 'Cri!dits"for •........ 2103.12'0+
Bnding Balance ail of II MAR 15 •.•..... 11239,.81 Continued dn page ·12
~ ~QUAl. HOIISIHG
l.!SLEND8R
Fed~'ly losu.ed by NeVil.
EXHIBIT 4
tiMILY YURAS
HOPKINS &. WILLIAMS ImllyO"opkln,wlllloml.QQm M.~.e.
April 17, 201S
Via reg,dar U.S. mall and CMRRRN 70121640000171146J19 LCWlY Acevedo and All Other Occupants 1108 Fox SpfUTOW cove Pflugerville, Texas 78660
RB: CAUSE NO. C·l·CV·15·000869i Federal National Mortgage Association v, unny Acevedo and all Occupants of J 108 Fox Sparrow Cove, Pflugerville, TX 78660, In the County Court at Law No.2, Travis County, Te~as
H609·15
Dear Mr. Acevedo:
Please find enclosed the Motion 10 Challenge Insufflciew Bond tmd for /SSU(l(fceof Writ filed In the above- referenced ceuse on April 17,2015.
~ry
~. Yuraa, Legal Assistant to HOPKINS & WILI.IAMS, PLLC
t 512·60Q·<\320 www.hQpkln,wllll.m,,~om f 512:6QO.4326 12117 BII' Cavua Road, Sulto 260, A...,tlo, TX 7G738
CAUSE NO. C-I-CV-15-000869
FEDERAL NATIONAL MORTGAGE § IN THE COUNTY COURT ASSOCIATION AJIKJA FANNIE MAE, § Plaintiff, § §
V. § AT LAW NO. 2 §
LENNY ACEVEDO AND ALL § OTHER OCCUPANTS OF 1108 § FOX SPARROW COVE, § PFLUGERVILLE, TEXAS 78660 § §
Defendant(s}. . § TRAVIS COUNTY, TEXAS
MOTION TO CHALLENGE INSUFFICIENT BOND AND FOR ISSUANCE OF WRIT
COMES NOW, FEDERAL NATIONAL MORTGAGE ASSOCIATION AlKJA FANNIE MAE, Plaintiff, and files this Motion to Challenge Insufficient Bond and For Issuance of Writ. Fannie Mae would respectfully request that the court Issue a Writ for Possession in this cause at this time due to Appellee's failure to file sufficient bond.
I. FACTS
1. Defendant Appeals this matter to the 3rd Court of Appeals after Judgment was awarded for possession of the property to Plaintiff on Apri12, 2015.
2. Defendant filed his Notice of Appeal on April 9th, 20] 5 and attached thereto a proposed surety bond signed by himself, Suzanne Rady, and Guillermo Rangel.
The amount assured by all three parties was $500.00.
II. ARGUMENT
3. A judgment debtor may suspend or supersede execution of a judgment while the debtor pursues a review by filing with the trial court clerk a good and sufficient
Motlon to Challenge InsuffiCient Bond H609-1S Acevedo PAGe 1
APR 2'
bond. TEX R. APP. P. 24.1(a)(2)-(3). When a judgment involves an interest in real property, the amount of the supersedeas bond or deposit must be "the value of the property interest's rent or revenue during the pendency of the appea1. TEX. R.
APP. P. 24.2(a)(2)(A); Whitmire v. Greenridge Place Apartments, 333 S.W>3d 255, 260 (Tex. App.e-Houstonl l" Dist.] 2010, pet. dism'd) Furthermore, the surety on a bond or the deposit made in lieu of a bond is subject to liability "for all damages and costs that may be awarded against the debtor----up to the amount of the bond, deposit, or security," if "the judgment is for the recovery of an interest in real or personal property, and the debtor does not pay the creditor the value of the property interest's rent or revenue during the pendency of the appea1." TEX R. APP. P. 24.1(d)(3). Because appeals can take longer than expected, the County court has autnority to mo(lizy tfie amount of the supersedeas bond even after then expimtion of it's plenary power. (fEX R. APP. P. 24.3(a)
4. In this matter $500.00 is a wholly insufficient supersedeas bond amount for the award of the possession of the property located at 1108 Fox Sparrow Cove, Pflugerville.
MOTION FOR ISSUANCE OF WRIT 5. Because Defendant has failed to post an apQ!:QPriateDonain accordance with exas Rule of Civil Proceoure 24, laintiff asks that the court issue a writ for possession at this time in accordance with the judgment signed on April 2, 2015.
Motion to Challenge Insufficient Bond H609-1S Acevedo PAGE 2 APR 24
Respectfully Submitted,
By:
Mark D. Hopkin
State Bar No. 00 93915
Brantley Boyett
State Bar. No. 24051592
12111 Bee Caves Rd., Suite 260 Austin, Texas 78738
(512) 600-4320
(512) 600-4326 Fax
mark@hopkinswilliams.com
ATTORNEY FOR FEDERAL NATIONAL MORTGAOE ASSOCIATION
CERTIFICATE OF SERVICE
Pursuant to Texas Rules of Civil Procedure, a true and correct copy of the foregoing has been sent on this the l1" ~y of April 2015 to all parties of record via the method indicated as follows:
Via,egula, u.s. mail and CMRRR# 70121640000171146319 Lenny Acevedo and All Other Occupants 1108 Fox Sparrow Cove Pflugerville, Texas 78660
PRo SE DEFENDANT
MOl/on 10 Challenge IMl/Jlclent Bond H609-15 Acevedo PAGE 3
APR 24