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Opinion issued May 18, 2006
In The
Court of Appeals
For The
First District of Texas
__________
JOHN PARRISH, Appellant
V.
U.S. BANK, N.A., AS TRUSTEE SUCCESSOR BY MERGER TO FIRSTAR BANK, N.A., AS TRUSTEE FOR NEW CENTURY HOME EQUITY LOAN TRUST, SERIES 2000-NC1 AND OCWEN FEDERAL BANK, FSB, Appellees
On Appeal from the County Civil Court at Law Number 2
Trial Court Cause No. 838,097
MEMORANDUM OPINION
Appellant,
John Parrish, challenges the trial court’s entry of judgment in favor of
appellees, U.S. Bank, N.A., as
trustee successor by merger to Firstar Bank, N.A., as trustee for New
Century Home Equity Loan Trust, Series 2000-NC1 and Ocwen Federal Bank,
FSB (“U.S. Bank”), in U.S. Bank’s forcible entry and detainer suit. In one issue,
Parrish contends that the forcible entry and detainer suit “was invalid
due to bankruptcy.”
We affirm.
Factual and Procedural Background
On
March 31, 2005, U.S. Bank filed a petition for forcible entry and detainer
in the justice court of Harris County, Texas,
stating, among other things, that it had
acquired a property located at 4914 Innsbruk, Houston, Texas 77066 (the
“property”) at a substitute trustee’s sale, that it had demanded
possession of the property from Parrish but Parrish had refused the
demand, and that it was entitled to institute an action for forcible entry
and detainer under the terms of its deed. U.S. Bank attached to its
petition a copy of the deed of trust, the substitute trustee’s deed, and
the notice to vacate that it had sent to Parrish.
On April 26, 2005, the justice court entered an “eviction-judgment” in favor of U.S. Bank. On May 10, 2005, U.S. Bank filed in the instant action a copy of the petition that it had originally filed in justice court. On June 1, 2005, after the trial court conducted a non-jury trial, it entered a judgment in favor of U.S. Bank, concluding that U.S. Bank was entitled to possession of the property, that Parrish was a tenant at sufferance pursuant to the foreclosure sale of the property on March 1, 2005, and that U.S. Bank was entitled to all writs necessary to enforce the judgment.Discussion
In support of his argument that the forcible entry and detainer proceeding “was invalid due to bankruptcy,” Parrish asserts that “in order to avoid foreclosure” of his property, he had “entered into an agreement with Mr. James Miller and Mr. John Wells of United Foreclosure Relief Services to assist in the sale of the property,” that “as compensation Mr. Miller was provided a warranty deed in the amount of 5% interest in the property,” that U.S. Bank “was notified of the warranty deed and Mr. Miller’s subsequent filing of Chapter 7 Bankruptcy petition,” and that U.S. Bank “proceeded with the Trustee’s Sale/Foreclosure Auction without verification or investigation of the information received.” Parrish argues that the trustee sale was invalid “due to the automatic stay protection provided by Federal Bankruptcy Relief,” that the resulting forcible entry and detainer proceeding was also invalid, and that U.S. Bank “should have made a good faith effort to investigate and verify the information provided prior to sale.” However, Parrish does not provide any references to the clerk’s or reporter’s record, and the above assertions are unsupported by any competent evidence.
U.S. Bank notes that Parrish failed to produce any evidence that the forcible entry and detainer proceeding violated a bankruptcy stay. Additionally, in response to Parrish’s factual allegations concerning Parrish’s alleged transfer of an interest in the property to Wells and Miller, U.S. Bank attaches in an appendix to its brief what purports to be a copy of a warranty deed for the property, dated January 25, 2005, identifying Parrish as a grantor of the property and Miller as a grantee. However, the portion of the deed that reflects the percentage of interest in the property allegedly transferred from Parrish to Miller is blank. U.S. Bank also attaches what appears to be a copy of a docket sheet, a schedule of real property, and related court documents from a bankruptcy case pending in the United States Bankruptcy Court for the Central District of California, in which “James Miller a/k/a David Miller” is identified as the debtor. U.S. Bank notes that in the schedule of real property filed in this bankruptcy proceeding, when asked to list all real property in which he has any interest, Miller stated “none.” U.S. Bank asserts that any alleged transfer of the property from Parrish to Wells and Miller was fraudulent, that John Wells has attempted this scam numerous times in other transactions in which U.S. Bank has been a party, and that U.S. Bank had advised Parrish of such in the proceedings below. U.S. Bank further asserts that, in the proceedings below, the county court had ordered Parrish to produce either Wells or Miller in court, but that Parrish failed to do so. U.S. Bank’s factual assertions are largely unsupported by record evidence, and we note that the documents that appear solely in the appendix of a brief are not part of the record and are generally not considered on appeal. See Till v. Thomas, 10 S.W.3d 730, 733–34 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
We
note that at least one other Texas court of appeals has stated that a
forcible entry and detainer action “is plainly covered by the automatic
stay” provision of the United States Bankruptcy Code.
In re McDaniel, 149 S.W.3d 860 (Tex.
App.—Waco 2004, order). Here, however, the record does not support
Parrish’s assertion that by filing the forcible entry and detainer suit
below, U.S. Bank initiated a judicial proceeding against “a debtor” that
was subject to an automatic stay. Accordingly, we hold that the trial
court did not err in entering judgment in favor of U.S. Bank.
We overrule Parrish’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Alcala.