IN RE: SAMUEL G. BREITLING & JOANN BREITLING

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Court of Appeals of Texas, Dallas.

IN RE: SAMUEL G. BREITLING & JOANN BREITLING, Relators

No. 05-17-00043-CV

Decided: January 25, 2017

Before Justices Bridges, Fillmore, and Schenck

MEMORANDUM OPINION

Before the Court is relators' January 18, 2017 first amended petition for writ of mandamus. In this original proceeding, relators ask the Court to grant a writ and direct the district court to sign an order vacating an August 4, 2014 expedited foreclosure order and vacating the September 2, 2014 foreclosure sale.

Background

After relators defaulted on a home equity loan, real party in interest LNV Corporation filed a Rule 736 motion in the 134th judicial district court of Dallas County, cause number DC-14-04053, seeking an expedited order allowing foreclosure of the lien. On August 4, 2014, the district court signed the Rule 736 order allowing LNV to proceed with foreclosure on the lien. On August 29, 2014, relators filed a separate action pursuant to Rule 736.11(a), which was docketed as DC-14-09604 in the 101st judicial district court of Dallas County. Relators notified LNV that the Rule 736.11 action had been filed and told LNV that an automatic stay of the August 4, 2014 expedited foreclosure order was in effect.

LNV proceeded with the non-judicial foreclosure sale on September 2, 2014. When relators refused to leave the property, LNV filed a forcible entry and detainer action in justice court and obtained a judgment of possession. Relators appealed to the county court and lost. Relators then appealed the county court judgment to this Court, and we affirmed the judgment. Breitling v. LNV Corp., 05-15-00677-CV, 2016 WL 3625450 (Tex. App.—Dallas July 5, 2016, pet. dism'd w.o.j.). The Texas Supreme Court dismissed relators' petition and denied their motion for rehearing.

On January 3, 2017, after this Court issued mandate in the appeal of the FED action, relators filed a motion in the original district court case (DC-14-04053 in the 134th district court) asking the judge to reopen the case and vacate the August 4, 2014 expedited foreclosure order and foreclosure sale. Relators argued that the separate lawsuit they filed on August 29, 2014 pursuant to Rule 736.11(a) stayed the August 4, 2014 foreclosure order and the subsequent foreclosure sale violated the stay and is, therefore, void. The district court denied relators' motion for want of jurisdiction and also noted that the motion should be denied because relators did not timely file a Rule 736.11(c) motion and were, therefore, not entitled to an order vacating the foreclosure order. Relators now seek review of that order and maintain that the district court was required to vacate the August 4, 2014 foreclosure order and subsequent foreclosure sale.

Applicable Law

Under Rule 736.11, an expedited foreclosure order is automatically stayed if the respondent files an independent lawsuit contesting the lender's right to foreclose:

A proceeding or order under this rule is automatically stayed if a respondent files a separate, original proceeding in a court of competent jurisdiction that puts in issue any matter related to the origination, servicing, or enforcement of the loan agreement, contract, or lien sought to be foreclosed prior to 5:00 p.m. on the Monday before the scheduled foreclosure sale.

TEX. R. CIV. P. 736.11(a). The trial court that issued the expedited foreclosure order is required to vacate the expedited foreclosure order only if the respondent files a motion and proposed order to vacate in that court within ten days of filing the separate suit. TEX. R. CIV. P. 736.11(c); In re Bettie Priester and John Priester, Jr., No. 05-16-00965-CV, 2016 WL 7010583 (Tex. App.—Dallas Nov. 21, 2016, orig. proceeding) (mem. op.) (Rule 736.11(c) creates a mandatory duty to vacate the Rule 736 order only if the respondent meets the requirements of rule 736.11(c) by timely-filing both the Rule 736.11(a) independent action and the Rule 736.11(c) motion to vacate); see also Murphy v. HSBC Bank USA, 95 F. Supp. 3d 1025, 1028 (S.D. Tex. 2015) (holding that Rule 736.11(c) requires the clerk to vacate the Rule 736 order if the respondent timely files a motion under Rule 736.11(c)).

Analysis

Here, relators did not timely file a Rule 736.11(c) motion in the original cause number. Relators filed a “Motion to Vacate Void Foreclosure Judgment” in the 134th district court cause number DC-14-04053 on August 18, 2014, and filed a “Motion to Vacate Foreclosure Order and Void the Sale” on September 10, 2014 in the new proceeding, cause number DC-14-09604. Neither motion meets the requirements of Rule 736.11(c) because neither motion mentions Rule 736 or otherwise notifies the court that relators have filed the independent lawsuit contesting the right to foreclose. Indeed, the August 18, 2014 motion was filed before relators filed the independent lawsuit. Further, the September 10, 2014 motion was not filed within ten days of filing the independent lawsuit, and it was filed in the 101st district court under the independent lawsuit's cause number rather than in the 134th district court that had issued the expedited foreclosure order. As such, that motion does not meet the requirements of Rule 736.11(c). Absent a timely-filed Rule 736.11(c) motion in the original cause number, the district court was not required to vacate the Rule 736 expedited foreclosure order or the foreclosure sale and did not abuse its discretion by denying the untimely motion. See, e.g., In re Priester, 2016 WL 7010583, at *3; see also Murphy, 95 F. Supp. 3d at 1028.

To be entitled to mandamus relief, a relator must show both that the trial court has clearly abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Based on the record before us, we conclude relators have not shown they are entitled to the relief requested. See TEX. R. APP. P. 52.8(a); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). Accordingly, we deny relators' January 18, 2017 first amended petition for writ of mandamus.

DAVID J. SCHENCK JUSTICE

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