Sheik Tehuti as for the Fahamme Nation of Nations v. the Bank of New York Mellon Trust Company, National Association FKA the Bank of New York Trust Company, N.A. as Successor to JP Morgan Chase Bank, as Trustee for Residential Asset Securities Corporation

• Court: Court of Appeals of Texas
• Decided: May 19, 2016
• Docket: 02-16-00097-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-16-00097-CV

SHEIK TEHUTI AS EXECUTOR APPELLANT FOR THE FAHAMME NATION OF NATIONS

V.

THE BANK OF NEW YORK APPELLEE MELLON TRUST COMPANY, NATIONAL ASSOCIATION FKA THE BANK OF NEW YORK TRUST COMPANY, N.A. AS SUCCESSOR TO JP MORGAN CHASE BANK, AS TRUSTEE FOR RESIDENTIAL ASSET SECURITIES CORPORATION

------------

FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 67-282078-15

---------- MEMORANDUM OPINION1

----------

Appellant Sheik Tehuti as executor for the Fahamme Nation of Nations

attempts to appeal from an order denying his motion for emergency hearing and

motion for bill of review following the issuance of a default order by the trial court

under rule of civil procedure 736. See Tex. R. Civ. P. 736.7(a). We dismiss the

appeal.

On December 22, 2015, the trial court signed a “Default Order” allowing

appellee (which we have identified in the style of the case above) to proceed with

foreclosure of real property in Forest Hill. The order cited rule of civil procedure

736 and stated, “This Order is not subject to a motion for rehearing, a new trial, a

bill of review, or an appeal. Any challenge to this order must be made in a

separate, original proceeding filed in accordance with Texas Rule of Civil

Procedure 736.11.”

Appellant filed a “Motion for Emergency Hearing Subject Matter

Jurisdiction” and a motion seeking a bill of review. On March 17, 2016, the trial

court signed an order denying these motions for want of jurisdiction. Appellant

brought this appeal from the March 17, 2016 order.

On March 24, 2016, we sent appellant a letter expressing our concern that

we lack jurisdiction over the appeal because the trial court’s March 17 order was

1 See Tex. R. App. P. 47.4.

2 not appealable. We informed appellant that we could dismiss the appeal unless

he filed a response showing grounds for continuing it. Appellant responded, but

his response does not show grounds for continuing the appeal.

An order issued under rule of civil procedure 736 that grants an application

for an expedited order allowing the foreclosure of a lien is not appealable. See

Tex. R. Civ. P. 736.1(a), 736.7(b), 736.8(c). Rather, by rule, any “challenge to a

[r]ule 736 order must be made in a suit filed in a separate, independent, original

proceeding in a court of competent jurisdiction.” Tex. R. Civ. P. 736.8(c); see

Tex. R. Civ. P. 736.11(a). Because appellant attempts to appeal from an

unappealable order, we dismiss the appeal for want of jurisdiction. See Tex. R.

Civ. P. 736.8(c); see also Tex. R. App. P. 42.3(a), 43.2(f); Layegh v. Stonebridge

Ranch Cmty. Ass’n, Inc., No. 05-15-00494-CV, 2015 WL 4722428, at *1 (Tex.

App.—Dallas Aug. 10, 2015, no pet.) (mem. op.); Jennings v. Wells Fargo Bank,

N.A., No. 03-15-00336-CV, 2015 WL 4604113, at *1 (Tex. App.—Austin July 28,

2015, no pet.) (mem. op.).

PER CURIAM

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: May 19, 2016