Opinion

Kavin Johnson v. Residential Funding Real Estate Homes

Court
Texas Court of Appeals, 1st District (Houston)
Filed
May 26, 2011
Status
Published
Cited by
0 cases
Authority
More cited than 42.2%

The opinion

Opinion issued May 26, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00287-CV

———————————

Kavin Johnson , Appellant

V.

Residential

Funding Real Estate HOLDINGS, LLc , Appellee

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Case No. 2009-65907

MEMORANDUM OPINION

Appellant

Kavin Johnson filed this restricted appeal complaining of the trial court’s

granting Appellee Residential Funding Real Estate Holdings, LLC’s “Application

for Expedited Foreclosure Proceeding Pursuant to Rule 736 of the Texas Rules of

Civil Procedure” (“Rule 736 Application”).

We dismiss the appeal for lack of jurisdiction.

Residential Funding is the

noteholder of a Texas Home Equity Security Debt secured by real property owned

by Johnson. Alleging that Johnson is in

default on that note, Residential Funding filed its Rule 736 Application on

October 13, 2009 requesting that the court “enter an order allowing Applicant

to proceed with foreclosure and sell the Subject Property.” On December 23, 2009, Johnson filed an answer

containing a general denial. On December

30, 2009, the trial court signed an “Order to Proceed with Notice of

Foreclosure Sale and Foreclosure Sale” authorizing Residential Funding to

proceed with foreclosure.

Johnson argues that, under Rule

736(5), it was improper for the court to render a default judgment because he

had an answer on file. Tex. R. Civ. P . 736(5)(B) (“Default. At

any time after a response is due, the court shall grant the application without

further notice or hearing if . . . the respondent has not previously filed a

response . . . .”). In response,

Residential Funding seeks dismissal of Johnson’s appeal because Rule 736(8)(A)

provides that “the granting or denial of [a Rule 736] application is not an

appealable order.” In his reply brief,

Johnson does not disagree with Residential Funding’s interpretation of Rule

736(8)(A), but argues that because he is not appealing the merits of the order,

but instead the trial court’s alleged failure to follow proper procedures, we

should decline to dismiss the appeal.

Johnson cites no authority in

support of his argument, and we have located none. Because he appeals a Rule 736 order, we have

no discretion to do anything but dismiss the appeal. E.g.,

Grant-Brooks v. FV-1, Inc. , 176 S.W.3d 933, 933 (Tex. App.—Dallas 2005, pet.

denied) (“Because the [Rule 736] order appellant seeks to appeal is not

appealable, we lack jurisdiction over this appeal.”); Kelso v. Cit Group/Consumer

Fin. Inc. , No. 01-05-00671-CV, 2005 WL 3118182 , at *1 (Tex. App.—Houston

[1st Dist.] Nov. 23, 2005, no pet.) (mem. op.) (dismissing, for want of

appellate jurisdiction, appeal of Rule 736 order complaining of trial court’s

granting application almost a month before the date on the court’s notice of

submission); Barriere v. Am. Serv. Mortg.

Co. , No. 14-10-00617-CV, 2010 WL 3504755 , at *1 (Tex. App.—Houston [14th

Dist.] Sept. 9, 2010, no pet.) (mem. op.) (dismissing appeal of Rule 736 order

for lack of jurisdiction).

We accordingly dismiss the appeal

for lack of jurisdiction.

Sherry

Radack

Chief

Justice

Panel

consists of Chief Justice Radack and Justices Sharp and Brown.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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