Marcy Lerch, Et-Al v. Wilmington Trust NA Successor Trustee for the Merrill Lynch Mortgage Investor Trust Series 2006-HE5

Court of Appeals of Texas·Decided June 23, 2015·No. 01-15-00505-CV·Published

Opinion

ACCEPTED 01-15-00505-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 6/23/2015 6:28:32 AM CHRISTOPHER PRINE CLERK

FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 6/23/2015 6:28:32 AM CHRISTOPHER A. PRINE Clerk

an Order of Foreclosure as required under Tex. R. Civ. P. 7

2. On or about March 21th, 2015 the lower court granted the ppellee a writ

of Possession to evict the Appellant.

3. On or about April 30th, 2015 the Appellant immediately file a motion of

reconsideration and a stay of writ and Pauper's Affidavit in ieu of

supersedes Bond. The Appellee's never challenged the cont st of the

Affidavit.

4. On or about May 21st, 2015 the Court denied Appellant's m tion to stay

the enforcement of writ of possession.

PROCEDURAL HISTORY IN THIS CO

5. On June 2, 2015, appellant, Marcy Lerch, filed a notice of a peal in the

trial court from the final judgment, signed on April 21, 20 1 , and the order

denying her motion to stay enforcement of the writ of posse sion and

reconsideration of the April 21st order, signed on May 21, 2015.

6. On June 8, 2015, appellant filed an application for temporary restraining

order, temporary injunction and permanent injunction, requesting a stay of

the execution of the writ of possession to preserve the status quo, among

other reasons, pending resolution of her appeal.

7. On June 11 tt, 2015 the Court denied the Appellant's application requesting

a stay of execution of the writ of possession based only on the documents

filed in this Court, with the appellant's notice of appeal and tnotion,

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because there was no indication what the supersedeas bond ~ount was as

set by the trial court or that appellant posted that bond amouht within ten

days of the signing of the April 21, 20 15 final judgment.

REQUEST FOR RECONSIDERATION OF TIDS COURT'S ORDER 0 JUNE 11TH, 2015

8. The appellants humbly requests this Court to reconsider its

because in the haste of trying to prevent the Appellee's fro evicting her

she hastily filed the motion of June 08th, 2015 and in so do"

attach the final judgment stating the amount of supersedeas ond that was

set by the trial court and/or the appellant's Affidavit in lieu ~fthe

supersedeas bond which she posted within ten days of the signing ofthe

April 21, 2015 final judgment by the trial Court. These documents are

hereby attached as an Appendix to this motion.

ARGUMENT

9. This Court has jurisdiction to issue writs only as necessary to enforce and

protect our jurisdiction. See TEX. GOV'T CODE ANN. § 22.221(a) (West

Supp. 2014) and may not, however, issue an injunction on wholly

equitable grounds or to preserve the status quo or to protect a party from

damage pending appeal. See Parsons v. Galveston County Emp. Credit

Union, 576 S.W.2d 99, 99 (Tex. Civ. App.-Houston [1st Dist.] 1978, no

writ).

lO.Some appellate courts including this have suggested that a pfUiY seeldng a

stay during the pendency of an appeal must show that it wo ld be entitled

to a issuance of an injunction to protect appellate jurisdictio under

Section 22.221 of the Texas Government Code. See, e.g., F, leon v.

Bonanza Capital, Ltd.. No. 03-12-00132-CV, 2012 WL 16 5809

Muscletech, Inc., 74 S.W.3d 429, 431 (Tex.App.-Amarillo 002, no pet.);

Lamar Builders, Inc. v. Guardian Sav. & Loan Ass'n, 786 S. .2d 789,

791 (Tex.App.-Houston [1st Dist.] 1990, no writ). This Co

however, that the requirements for a stay to protect the Cotujt's jurisdiction '

are not as stringent as the requirements of the Section 22.22l of the Texas

Government Code. "A stay is not a writ of prohibition: a sta~ is intended

to be only temporary, and the requisite showing for a stay is less formal

than the requisite showing for a writ of prohibition." J.K. & Susie L.

Wadley Research Jnst. & Blood Bank v. Whittington, 843 S.W.2d 77, 83

(Tex.App.-Dallas 1992, no writ).1 Particularly in cases such as this one,

where the actions of the trial court during the pendency of the appeal

endanger this Court's jurisdiction over the appeal, just as un er Rule 29.3,

the question on a motion for stay is not whether the trial co acted within

its discretion in issuing the order in question, but rather whe er a stay is

needed to preserve the rights of the parties pending appeal. ee, e.g.,

Tex.R.App. P. 29.3; see In re Lasik Plus o{Texas, P.A., 14- 3--00036-

CV, 2013 WL 816674, at *4 (Tex. App.-Houston [14th Dist] Mar. 5,

2013, orig. proceeding) (''We cannot conclude that tempor orders are

necessary to preserve appellants' rights until disposition oft eir

interlocutory appeal.") (mem. op.). See also, Oryon Techno/ gies, Inc. v.

Marcus, 429 S.W.3d 762, 766-7 (Tex. App .. -Dallas 2014) ( .. .in cases

such as this one, where the actions of the trial court during t e pendency

of the appeal endanger this Court's jurisdiction over the app al, just as

under Rule 29.3, the question on a motion for stay is not wh ther the trial

court acted within its discretion in issuing the order in question, but rather

whether a stay is needed to preserve the rights of the parties pending

appeal.")

11.An Appellate Court may not stay the judgment of a county court in an

eviction suit pending appeal unless, within ten days of the signing of the

judgment, the appellant files a supersedeas bond in an amount set by the

county court. See TEX. PROP. CODE ANN. § 24.007(a) (West Supp.

2014); Phillips v. Branch Banking & Trust Co., No. 03-11-0 461-CV,

2012 WL 424875, at *1 (Tex. App.-Austin, Feb. 1, 2012, rder).

12.1n Texas, the amount of a supersedeas bond (referred to as" ecurity for

judgments pending appeal" in the Texas Civil Practice and emedies

Code) is determined as follows:

a. Under subsection (a), the amount of the bond must eq all) the

amount of compensatory damages awarded in the jud ent, 2)

interest for the estimated duration of the appeal, and 3

awarded in the judgment.

b. Under subsection (b), notwithstanding the requiremen s of

subsection (a), the security cannot equal the lesser of ) 50 percent

of the judgment debtor's net worth or 2) USD$25 million.

c. Under subsection (c), if the judgment debtor shows that the amount

of the security would cause "substantial economic harm", the trial

court is required to lower it to an amount that would not cause such

harm.

d. Subsection (d) allows an appellate court to review and modify the

amount of security, but not to exceed the limitations above.

e. Subsection (e) permits a trial court to enter orders preventing

· dissipation or transfer of assets to avoid satisfaction of the

judgment, but not so as to prohibit use, transfer, conv~yance, or

dissipation of assets in the normal course of business.

13. In this case the County Court without rational or any bases

Appeal/supersedeas bond in an amount $12,680.10 especial since this

case was an eviction case pursuant to a foreclosure with no arket value

of the property stated. Nonetheless, in a case of eviction sue as this the

cash bond may be waived if the tenant and/or Appellant file

stating that he or she cannot afford it. The content of the "p

or "pauper's affidavit" is prescribed by statute (Tex. Prop. de

§24.0052).

14.0nce a pauper's affidavit is filed, the landlord/Appellee has he right to

request a hearing and contest the affidavit, alleging that the enant does in

fact have sufficient resources for the bond. The proponent o the affidavit

can be questioned on the subject of his or her assets and income. (Tex. R.

Civ. P. 510.9(c)).

15.0n or about Apiil21 st, 2015 the County issued its final Order setting an

Appeal/supersedeas bond in the amount of$12,680.10. Exhibit A. And

on or about April 30th, 2015, the Appellant filed a Pauper Affidavit in Lieu

of Appeal/supersedeas bond. See attached Exhibit B. The Appellee

waived its right to seek a cash bond because he did not request a hearing

seeking a ruling contesting the sufficiency of the Affidavit i Lieu of

supersedeas bond. See Exhibit C_Electronic Docket sheet fo Case number

15-CCV-054652.(showing that the Appellee did not seek a earing to

contest the sufficiency of the Pauper's affidavit)

16.1n this case the Appellee waived its right to seek the Appell t to post the

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