Montalvo v. JP Morgan Chase Bank, N.A.
375 S.W.3d 553
| Tex. App. | 2012Background
- Indigent party filed an affidavit of indigence on October 12, 2011 in Appeal No. 14-11-00987-CV.
- A contest to the affidavit was filed within 10 days, on October 21, 2011.
- The trial court did not conduct a hearing within 10 days; it set a hearing by submission for November 7, 2011.
- An order sustaining the contest was signed November 10, 2011, after the hearing period expired.
- The appellate court concluded the contest was untimely and abused its discretion, deeming the affidavit true and granting costs relief.
- Appeal 14-11-00987-CV was reinstated and clerk’s record ordered filed without payment of costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the contest was timely under Rule 20.1(i). | Appellant | Appellee | Contest untimely; order void for timing. |
| Whether the affidavit should be deemed true if the hearing is late. | Affidavit should be deemed true if timely not met | Court timely extended or did not follow rule | Alleges true; remedy depends on timely order. |
| Whether the trial court abused its discretion by sustaining the contest. | Indigent allegations true | Defect in affidavit | Abuse found; indigence established. |
| What is the proper remedy for improper timing of the contest? | Appellant proceeds without costs | Costs may be allocated | Reverse ruling; allow appeal without costs. |
Key Cases Cited
- In re Arroyo, 988 S.W.2d 737 (Tex. 1998) (indigent record review; affidavit of indigence challenge)
- Watson v. Hart, 871 S.W.2d 914 (Tex.App.-Austin 1994) (timing of hearing on contest)
- In re G.C., 22 S.W.3d 932 (Tex. 2000) (timeliness and effect of late order)
- In re M.G.D., 108 S.W.3d 508 (Tex.App.-Houston [14th Dist.] 2003) (trial court may allow defective affidavit to be cured by testimony)
- Weeks v. Hobson, 877 S.W.2d 478 (Tex.App.-Houston [1st Dist.] 1994) (indigent affidavit may be supplemented by testimony)