Lenny Acevedo v. Federal National Mortgage Association A/K/A Fannie Mae
03-15-00215-CV
Tex. App.May 4, 2015Background
- Acevedo sued by Fannie Mae for forcible detainer; county court awarded possession; Acevedo posted a $500 supersedeas bond when no bond amount was set; writ of possession issued before bond amount was determined; hearing on insufficiency held May 1, 2015; trial court ruled there was no bond because none set and allowed writ; motion for review of the order filed May 4, 2015; court later issued an order granting writ and setting attorney fees against the bond; appellate motion argues the court erred by not ruling on sufficiency and by denying Acevedo’s right to stay execution pending appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court rule on the insufficiency of the bond? | Acevedo | Fannie Mae | No; court failed to decide sufficiency and erroneously treated as no bond. |
| Can a supersedeas bond be posted when the court has not set a bond amount? | Acevedo | Fannie Mae | Yes; bond could be posted and stay could be effected; insufficiency must be decided. |
| May the trial court amend the judgment to set a sufficient bond after plenary power expires? | Acevedo | Fannie Mae | Yes; trial court retains continuing jurisdiction to set or adjust bond and allow cure. |
| Can a writ of possession issue based on a judgment that has not been issued or recorded? | Acevedo | Fannie Mae | No; writ issuance must align with properly issued judgment and bond procedures. |
Key Cases Cited
- Dillingham v. Putnam, 109 Tex. 1, 14 S.W.303 (Tex. 1890) (Tex. 1890) (due process and right to appeal tied to bond; invalid if bond unnecessarily forecloses remedy)
- Watts v. Muniz, 197 S.W.2d 197 (Tex. Civ. App.-Austin 1946) (supersedeas bond concept essential to appeal rights)
- Ashley Furniture Indus., Inc. v. Law Office of David Pierce, 311 S.W.3d 595 (Tex.App.-El Paso 2010) (trial court must determine sufficiency of bond and allow cure)
- Whitmire v. Greenridge Place Apartments, 333 S.W.3d 255 (Tex.App.-Houston [1st Dist.] 2010) (court may modify bond after plenary power to protect judgment creditor)
- Miller v. Kennedy & Mish ew, P.J., Inc., 80 S.W.3d 161 (Tex.App.-Fort Worth 2002) (continuing jurisdiction to review security on supersedeas bond)
- Lamar County Elec. Co-op. Ass'n, 51 S.W.3d 801 (Tex.App.-Texarkana 2001) (trial court may determine sufficiency of sureties on supersedeas bond)
- In re MVG., 285 S.W.3d 573 (Tex.App.-Waco 2009) (order abating appeal; continuing jurisdiction to evaluate security)