Marcy Lerch, Et-Al v. Wilmington Trust NA Successor Trustee for the Merrill Lynch Mortgage Investor Trust Series 2006-HE5
01-15-00505-CV
| Tex. App. | Jun 23, 2015Background
- Foreclosure judgment entered April 21, 2015; final writ of possession issued to evict Lerch on March 21, 2015 baseline date
- Appellant Lerch filed appeal to trial court and moved for stay, TRO, and injunction in June 2015
- County Court set a cash supersedeas bond of $12,680.10 despite Lerch filing a pauper affidavit in lieu of bond
- Appellee Wilmington Trust waived cash-bond contest and did not seek a hearing on sufficiency of pauper affidavit
- Texas law § 52.006 governs bond amount and potential lowering for substantial economic harm, which Lerch argues was not properly applied
- Trial court denied stay/reconsideration on May 21, 2015; First Court of Appeals granted stay pending appeal
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May stay be issued to preserve appellate jurisdiction? | Lerch argues stay is needed to preserve rights pending appeal | Wilmington Trust contends stay not required beyond discretion | Yes; stay granted pending appeal to preserve jurisdiction |
| Was bond amount properly set or subject to reduction for economic harm? | Bond should be lowered under § 52.006(c) due to substantial economic harm | Bond amount fixed by trial court; no reduction warranted | Court should have lowered bond under § 52.006(c); circumstantial harm not adequately considered |
| Is pauper affidavit in lieu of bond sufficient security? | Affidavit is sufficient security for appeal bond | Right to contest sufficiency of affidavit may be asserted via hearing | Pauper affidavit sufficient security; appellee waived contest by not requesting a hearing |
| Did the court act within procedural rules to preserve appellate jurisdiction while considering stay? | Actions endangered appellate jurisdiction if not stayed | Court acted within discretionary limits | Actions endangered jurisdiction; stay appropriate to protect rights pending appeal |
Key Cases Cited
- Parsons v. Galveston County Emp. Credit Union, 576 S.W.2d 99 (Tex. Civ. App.-Houston [1st Dist.] 1978) (public policy or jurisdictional stays analyzed for appellate process)
- Lamar Builders, Inc. v. Guardian Sav. & Loan Ass'n, 786 S.W.2d 789 (Tex.App.-Houston [1st Dist.] 1990) (stay standards differ from writ of prohibition thresholds)
- Wadley Research Institute & Blood Bank v. Whittington, 843 S.W.2d 77 (Tex.App.-Dallas 1992) (stay is temporary and predicate for preserving rights pending appeal)
- Marcus v. Marcus, 429 S.W.3d 762 (Tex.App.-Dallas 2014) (trial court actions during appeal can threaten jurisdiction; stay may be needed)