Nicholas D. Mosser v. Flagstar Bank, FSB Select Portfolio Servicing Inc. First Guaranty Mortgage Corporation Federal Home Loan Mortgage Corporation

Opinion

DENIED and Opinion Filed June 12, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-01140-CV

NICHOLAS D. MOSSER, Appellant V. FLAGSTAR BANK, FSB; SELECT PORTFOLIO SERVICING INC.; FIRST GUARANTY MORTGAGE CORPORATION; AND FEDERAL HOME LOAN MORTGAGE CORPORATION, Appellees

On Appeal from the 471st Judicial District Court Collin County, Texas Trial Court Cause No. 471-04378-2023

MEMORANDUM OPINION ON MOTION Before Justices Reichek, Goldstein, and Kennedy Opinion by Justice Kennedy Appellant’s Rule 24.4 motion challenges the trial court’s order granting the

motion to challenge the sufficiency of the security required to stay an execution of

the judgment. In its order, the trial court (1) found that appellant’s initial $10 cash

deposit was insufficient to stay execution of the court’s final judgment and (2) set a

bond amount of $38,158.50. Appellant contends that the trial court abused its

discretion because its ruling was not based on evidence. Rule 24.4(a) authorizes an appellate court to review a supersedeas bond for

the following purposes: (1) the sufficiency or excessiveness of the amount of

security; (2) the sureties on a bond; (3) the type of security; (4) the determination of

whether to permit suspension of enforcement; and (5) the trial court’s exercise of

discretion in ordering the amount and type of security. TEX. R. APP. P. 24.4(a). The

grounds for review may be based both on conditions as they existed at the time the

trial court signed the order and on changes in those conditions afterward. TEX. R.

APP. P. 24.4(b); G.M. Houser, Inc. v. Rodgers, 204 S.W.3d 836, 840 (Tex. App.—

Dallas 2006, no pet.). Following its review, an appellate court may require that the

amount of a bond be increased or decreased and that another bond be provided and

approved by the trial court clerk. TEX. R. APP. P. 24.4(d). It may also require other

changes in the trial court’s order. Id.

After reviewing the Rule 24.4 motion, appellees’ response, and the reply, we

conclude that appellant has not shown entitlement to the relief requested. Although

appellant contends that appellees did not support their motion with evidence, the

record shows that their motion incorporated by reference a copy of the Texas Home

Equity Note already filed in the court, which established the amount of appellant’s

monthly mortgage payment. In its order, the trial court took judicial notice of this

evidence.

–2– Because this evidence supports the trial court’s ruling, we deny the motion.

/Nancy Kennedy/ NANCY KENNEDY JUSTICE

231140NF.P05

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