Opinion=20
issued May 18, 2006
=
In The
Court of Appeals
For The
First District of =
Texas
NO. 01-05-00684-CV
__________
JOHN =
PARRISH,=20
Appellant
V.
U.S. =
BANK, N.A.,=20
AS TRUSTEE SUCCESSOR BY MERGER TO FIRSTAR BANK, N.A., AS TRUSTEE =
FOR NEW=20
CENTURY HOME EQUITY LOAN TRUST, SERIES 2000-NC1 AND OCWEN FEDERAL =
BANK,=20
FSB, Appellees
On =
Appeal from=20
the County Civil Court at Law Number =
2
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 838,097
MEMORANDUM=20
OPINION
<=
/SPAN>Appellant,=20
John Parrish, challenges the trial court=E2=80=99s entry of =
judgment in favor of=20
appellees, U.S. Bank, N.A., =
as=20
trustee successor by merger to Firstar Bank, N.A., as trustee for =
New=20
Century Home Equity Loan Trust, Series 2000-NC1 and Ocwen Federal =
Bank,=20
FSB (=E2=80=9CU.S. Bank=E2=80=9D), in U.S. Bank=E2=80=99s =
forcible entry and detainer suit. In one =
issue,=20
Parrish contends that the forcible entry and detainer suit =
=E2=80=9Cwas invalid=20
due to bankruptcy.=E2=80=9D ![3DFootnote](3D"")
<=
/SPAN>We=20
affirm.
Factual and=20
Procedural Background
&nbs=
p;On=20
March 31, 2005, U.S. Bank filed a petition for forcible entry and =
detainer=20
in the justice court of Harris County, Texas,
stating, among other things, =
that it had=20
acquired a property located at 4914 Innsbruk, Houston, Texas 77066 =
(the=20
=E2=80=9Cproperty=E2=80=9D) at a substitute trustee=E2=80=99s =
sale, that it had demanded=20
possession of the property from Parrish but Parrish had refused =
the=20
demand, and that it was entitled to institute an action for =
forcible entry=20
and detainer under the terms of its deed. U.S. Bank attached to =
its=20
petition a copy of the deed of trust, the substitute =
trustee=E2=80=99s deed, and=20
the notice to vacate that it had sent to Parrish. =
&nbs=
p;On=20
April 26, 2005, the justice court entered an =
=E2=80=9Ceviction-judgment=E2=80=9D in favor=20
of U.S. Bank. On May 10, 2005, U.S. Bank filed in the instant=20
action a copy of the =
petition=20
that it had originally filed in justice court. On June 1, 2005, =
after the=20
trial court conducted a non-jury trial, it entered a judgment in favor of U.S. =
Bank,=20
concluding that U.S. Bank was entitled to possession of the =
property, that=20
Parrish was a tenant at sufferance pursuant to the foreclosure =
sale of the=20
property on March 1, 2005, and that U.S. Bank was entitled to all =
writs=20
necessary to enforce the judgment.Discussion
<=
/SPAN>In=20
support of his argument that the forcible entry and detainer =
proceeding=20
=E2=80=9Cwas invalid due to bankruptcy,=E2=80=9D=20
Parrish asserts that =E2=80=9Cin order to avoid =
foreclosure=E2=80=9D of his property, he=20
had =E2=80=9Centered into an agreement with Mr. James Miller and =
Mr. John Wells of=20
United Foreclosure Relief Services to assist in the sale of the =
property,=E2=80=9D=20
that =E2=80=9Cas compensation Mr. Miller was provided a warranty =
deed in the=20
amount of 5% interest in the property,=E2=80=9D that U.S. Bank =
=E2=80=9Cwas notified of=20
the warranty deed and Mr. Miller=E2=80=99s subsequent filing of =
Chapter 7=20
Bankruptcy petition,=E2=80=9D and that U.S. Bank =
=E2=80=9Cproceeded with the Trustee=E2=80=99s=20
Sale/Foreclosure Auction without verification or investigation of =
the=20
information received.=E2=80=9D Parrish argues that the trustee =
sale was invalid=20
=E2=80=9Cdue to the automatic stay protection provided by Federal =
Bankruptcy=20
Relief,=E2=80=9D that the resulting forcible entry and detainer =
proceeding was=20
also invalid, and that U.S. Bank =E2=80=9Cshould have made a good =
faith effort to=20
investigate and verify the information provided prior to =
sale.=E2=80=9D=20
However, Parrish does not =
provide any=20
references to the clerk=E2=80=99s or reporter=E2=80=99s record, =
and the above assertions are unsupported by any =
competent=20
evidence.
<=
/SPAN>U.S.=20
Bank notes that Parrish failed to produce any evidence that the =
forcible=20
entry and detainer proceeding violated a bankruptcy stay. =
Additionally, in=20
response to Parrish=E2=80=99s factual allegations concerning =
Parrish=E2=80=99s alleged=20
transfer of an interest in the property to Wells and Miller, U.S. =
Bank=20
attaches in an appendix to its brief what purports to be a copy of =
a=20
warranty deed for the property, dated January 25, 2005, =
identifying Parrish as a grantor of the property and =
Miller as=20
a grantee. However, the portion of the deed that reflects the =
percentage=20
of interest in the property allegedly transferred from Parrish to =
Miller=20
is blank. U.S. Bank also attaches what appears to be a copy of a =
docket=20
sheet, a schedule of real property, and related court documents =
from a=20
bankruptcy case pending in the United States Bankruptcy Court for =
the=20
Central District of California, in which =E2=80=9CJames Miller =
a/k/a David Miller=E2=80=9D=20
is identified as the debtor. U.S. Bank notes that in the schedule =
of real=20
property filed in this bankruptcy proceeding, when asked to list =
all real=20
property in which he has any interest, Miller stated =E2=80=9Cnone.=E2=80=9D U.S. Bank =
asserts that any alleged=20
transfer of the property from Parrish to Wells and Miller was =
fraudulent,=20
that John Wells has attempted this scam numerous times in other=20
transactions in which U.S. Bank has been a party, and that U.S. =
Bank had=20
advised Parrish of such in the proceedings below. U.S. Bank =
further=20
asserts that, in the proceedings below, the county court had =
ordered=20
Parrish to produce either Wells or Miller in court, but that =
Parrish=20
failed to do so. U.S. Bank=E2=80=99s factual assertions are =
largely unsupported by=20
record evidence, and we note that the documents that appear solely =
in the=20
appendix of a brief are not part of the record and are generally =
not=20
considered on appeal. =
See Till v.=20
Thomas, 10 S.W.3d 730, 733=E2=80=9334 (Tex. =
App.=E2=80=94Houston [1st Dist.] 1999, no=20
pet.).
<=
/SPAN>We=20
note that at least one other Texas court of appeals has stated =
that a=20
forcible entry and detainer action =E2=80=9Cis plainly covered by =
the automatic=20
stay=E2=80=9D provision of the United States Bankruptcy =
Code.
In re McDaniel, 149 S.W.3d =
860 (Tex.=20
App.=E2=80=94Waco 2004, order). Here, however, the record does not =
support=20
Parrish=E2=80=99s assertion that by filing the forcible entry and =
detainer suit=20
below, U.S. Bank initiated a judicial proceeding against =
=E2=80=9Ca debtor=E2=80=9D that=20
was subject to an automatic stay. Accordingly, we hold that the =
trial=20
court did not err in entering judgment in favor of U.S. =
Bank.
<=
/SPAN>We=20
overrule Parrish=E2=80=99s sole issue.
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Terry=20
Jennings
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; =
Justice
Panel consists of Chief Justice Radack =
and=20
Justices Jennings and=20
Alcala. |