Dana Dutschmann and Kevin Bierwirth v. Federal National Mortgage Association, 03-14-00561-CV

Background

Appellant Kevin Bierwirth owned property subject to foreclosure and was the defendant in a forcible-detainer/possession dispute with appellee Federal National Mortgage Association (Fannie Mae).
A county court entered judgment for Fannie Mae and a writ of possession issued less than 10 days after judgment. Appellant contends the court failed to set a supersedeas bond amount or to hold a hearing to set that amount before issuing the writ.
Appellant alleges the premature writ and the court’s refusal to set a bond deprived him of the statutory right to stay execution under Tex. R. Civ. P. 510.13 and Texas Property Code § 24.007, and thus deprived him of due process and property rights under the Texas Constitution.
Appellant claims he was served an earlier three-day notice to vacate (June 30, 2011) that started the accrual of limitations and argues a two-year statute of limitations for forcible-detainer should bar the possession.
Appellant challenges the use/misuse of writs (Rule 309/310 distinction), arguing the summary-judgment/foreclosure procedure did not authorize an immediate writ of possession and that the writ issued was invalid.

Issues

Issue	Plaintiff's Argument (Bierwirth)	Defendant's Argument (Fannie Mae)	Held
Whether failure to set supersedeas bond and to hold a bond hearing before issuing writ violated appellant's rights	Judge had duty to set bond amount; failure denied appellant ability to stay execution and deprived him of due process and property	Fannie Mae argues appeal is moot because appellant was dispossessed and that failure to set bond amount does not bar appellate review or deprive due process	Not decided in this brief — appellant asks appellate court to reverse and address error; record does not include final appellate disposition here
Whether writ of possession issued prematurely in violation of Tex. R. Civ. P. 510.13 and Property Code §24.007 (10‑day stay)	Writ issued before the mandatory 10‑day period; thus unlawful and deprived appellant of remedy to post supersedeas bond	Fannie Mae asserts issuance and possession render appeal moot and challenges appellant’s claims of procedural defect	Not decided in this brief — appellant urges reversal and remand for compliance with bond/stay rules
Whether the two‑year statute of limitations for forcible detainer barred Fannie Mae’s possession claim	First notice to vacate (June 30, 2011) triggered accrual; limitations expired and possession is barred	Fannie Mae disputes accrual timing and contends notices or later events restarted accrual; argues possession was lawful	Not decided in this brief — appellant requests court to rule limitations barred the writ of possession
Whether summary-judgment/foreclosure procedure justified issuance of writ (Rule 309 vs. Rule 310)	Summary judgment granting foreclosure did not satisfy requirements for a Rule 309 money judgment writ; writ issued under Rule 310 was improper	Fannie Mae maintains its procedural path was proper to obtain possession	Not decided in this brief — appellant asks court to find writ invalid and remedy wrongful dispossession

Key Cases Cited

Holy Cross Church v. Wolf, 44 S.W.3d 562 (Tex. 2001) (discusses accrual and acceleration for limitations in real‑property claims)
Shumway v. Horizon Credit Corp., 801 S.W.2d 890 (Tex. 1991) (addresses requirements for effective acceleration of obligations)
Ogden v. Gibraltar Sav. Ass'n, 640 S.W.2d 232 (Tex. 1982) (treats acceleration and foreclosure timing principles)
McLemore v. Pacific Southwest Bank, 872 S.W.2d 286 (Tex. App.—Texarkana 1994) (addresses when note acceleration occurs as a fact question)
Swedlund v. Banner, 970 S.W.2d 107 (Tex. App.—Corpus Christi 1998) (limitations and accrual principles for secured obligations)
Hammann v. H.J. McMullen & Co., 62 S.W.2d 59 (Tex. 1933) (discusses acceleration principles in note enforcement)
Curtis v. Speck, 130 S.W.2d 348 (Tex. Civ. App.—Galveston 1939) (related to acceleration/foreclosure doctrines)