in Re Herndon Y. Robinson ( 2006 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-05-00676-CV

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Herndon Y. Robinson, Appellant

v.

Saxon Mortgage Services, Inc. f/k/a Meritech Mortgage Services, Inc., Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT

NO. GN302858, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

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NO. 03-06-00058-CV

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In re Herndon Y. Robinson

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ORIGINAL PROCEEDING FROM TRAVIS COUNTY

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O R D E R

On February 3, we consolidated these two causes for consideration and stayed a scheduled foreclosure sale. See Tex. Gov't Code Ann. § 22.221 (West 2004). Saxon Mortgage responded, arguing that the injunction was not appropriate or necessary or, alternatively, that Robinson should be required to post a supersedeas bond to protect Saxon's interests.

We determined that Saxon Mortgage's arguments have merit, but that it would be overly harsh to dissolve the injunction without allowing Robinson to post security to preserve the status quo pending resolution of his appeal. We therefore abated the causes, asking the trial court to hold an evidentiary hearing and make findings and recommendations regarding the appropriate amount and form of the security to be imposed. The trial court held a hearing as requested, and the testimony was that the principal balance due under the note is about $570,000, and that the property is worth more than $800,000. Robinson has not made payments or paid the taxes on the property in more than two years, and Saxon Mortgage has paid about $53,000 in taxes over the last five years. One year of interest is about $60,000, and since Robinson's last payment, about $262,000 in interest has accrued. Robinson asserted that Saxon Mortgage had filed and withdrawn foreclosure suits several times before Robinson himself filed this declaratory judgment action in August 2003.

Following the hearing, the trial court recommended that Robinson be required to post a $2,500.00 cash bond. However, the court did not make findings of fact or conclusions of law that would explain its decision. Based on this record and without an explanation of how the trial court arrived at that amount, we believe that the court's recommendation is too low to protect Saxon Mortgage's interests. We have a duty to ensure that Saxon Mortgage's interests are "adequately protected against substantial financial loss in the event the appealed judgment is sustained," and we have the discretion to determine the sufficiency of the required bond. Pendleton Green Assocs. v. Anchor Sav. Bank, 520 S.W.2d 579, 582 (Tex. Civ. App.--Corpus Christi 1975, orig. proceeding).

Therefore, based on the evidence presented at the trial court's hearing, we will require Robinson to post a $100,000 bond in order to maintain our stay on the foreclosure sale. See Sonny Arnold, Inc. v. Sentry Sav. Ass'n, 602 S.W.2d 90, 93 (Tex. Civ. App.--Amarillo 1980, orig. proceeding); Pendleton Green Assocs., 520 S.W.2d at 582; Riverdrive Mall, Inc. v. Larwin Mortgage Investors, 515 S.W.2d 2, 4 (Tex. Civ. App.--San Antonio 1974, orig. proceeding); see also Tex. R. App. P. 43.6 ("court of appeals may make any other appropriate order that the law and the nature of the case require"); Tex. Gov't Code Ann. § 21.001 (West 2004) (court has all powers necessary to exercise its jurisdiction and enforce its lawful orders).

Robinson is ordered to file with the trial court clerk a $100,000.00 bond pursuant to and complying with rule 24 of the rules of appellate procedure. Tex. R. App. P. 24.1(b). Robinson must file evidence of the posted security with this Court, and that evidence must be received by this Court no later than 5:00 p.m. on December 22, 2006. If Robinson does not both file the ordered bond and provide proof of the posting by that date, we will dissolve the February 3 injunction.

It is ordered December 1, 2006.

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David Puryear, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear