The opinion
ACCEPTED
01-14-00455-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
1/2/2015 4:15:22 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-00455-CV
No. 01-14-00455-CV FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
________________________________________________________
1/2/2015 4:15:22 PM
THE
IN THE
IN CHRISTOPHER A. PRINE
Clerk
COURT OF
FIRST COURT
FIRST APPEALS
OF APPEALS
TEXAS
HOUSTON, TEXAS
HOUSTON,
_________________________________________________________
TANGUY,
PHILIPPE TANGUY,
PHILIPPE
AIR EXPRESS,
13500 AIR
13500 EXPRESS, L.L.C & 13500
L.L.C & AIR EXPRESS,
13500 AIR EXPRESS, L.P.,
Appellant,
Appellant,
v.
WILLIAM G.
WILLIAM G. WEST, CHAPTER 7 TRUSTEE
AS CHAPTER
WEST, AS TRUSTEE OF
OF
RICHARD DAVIS,
RICHARD DEBTORS
DAVIS, DEBTORS
Appellee.
Appellee.
________________________________________________________
APPELLEES’ BRIEF
APPELLEES’ BRIEF
________________________________________________________
W. Wolfshohl
Joshua W. Eva S. Engelhart
Eva
24038592
Texas Bar No. 24038592 Bar No.
State Bar 00796513
No. 00796513
jwo1fshoh1@porterhedges.com
jwolfshohl@porterhedges.com May, Cron
Ross, Banks, May, & Cavin P.C.
Cron &
Aaron J.
Aaron Power
J. Power 2 Riverway, Suite 700
24058058
Texas Bar. No. 24058058 77056-1919
Houston, Texas 77056-1919
apower@porterhedges.com eenge1hart@rossbanks.com
eengelhart@rossbanks.com
Porter Hedges LLP
Hedges LLP 626-1200
(713) 626-1200
Main Street, 36
1000 Main
1000 36”‘
th
Floor 623-6014 (fax)
(713) 623-6014
77002
Houston, Texas 77002
226-6000
Telephone: (713) 226-6000
Telephone:
228-1331
Facsimile: (713) 228-1331
Facsimile:
ATTORNEYS FOR APPELLEE
ATTORNEYS FOR APPELLEE COURT APPOINTED
COURT RECEIVER
APPOINTED RECEIVER
WILLIAM WEST
WILLIAM G. WEST PRO SE
PRO SE
Of Contents
Table Of
Table
Page
Page
SUPPLEMENTAL LIST
SUPPLEMENTAL OF PARTIES.........................................................................................
LIST OF PARTIES ....................................................................................... iiii ..
STATEMENT OF
STATEMENT THE CASE.......................................................................................................
OF THE CASE ............................ .. . 11 .
STATEMENT IN
STATEMENT IN OPPOSITION TO ORAL
OPPOSITION TO ARGUMENT .........................................................
ORAL ARGUMENT ....................................................... 2 ..
STATEMENT OF
STATEMENT FACTS .............................................................................................................
OF FACTS ........................................................................................................... 33 ..
The Bankruptcy Court Judgment
The Judgment and Appeals Thereof ......................................................3
.................................................... ..3
Judgment and Appointment of the Receiver .....................................3
Domestication of the Judgment ................................... ..3
The District Court Orders Appellees to Turnover and Authorizes the
The
Receiver to Sell the Driscoll Property .....................................................................4
................................................................... ..4
The District Court Approves the Sale of the Driscoll Property...........................................5
The Property ......................................... ..5
SUMMARY OF
SUMMARY ARGUMENT....................................................................................................... 6
OF ARGUMENT .
APPELLEES’ ARGUMENT ........................................................................................................ 7
APPELLEES’ ARGUMENT.......................................................................................................... ..
1.
1. There is No Appellants’ Collateral Attack on
No Legal Support for Appellants’ on the
Judgment ........................................................................................ ..7
Validity of the Judgment..........................................................................................7
2. A Court May
A May Require a Judgment
Judgment Debtor to Turn Turn OverOver All Non- Non-
Exempt Property to a Receiver.
Exempt Receiver. .............................................................................10
........................................................................... ..10
3. The Plain Language
The Does Not
Language of the Statute Does Not Require the Turnover
Specifically Identify Property..................................................................12
Order to Specifically Property ................................................................ ..12
4. The Receiver Order, the Turnover Order and the Sale Order Were
The Were
Non—Exempt
by Sufficient Evidence of Non-Exempt Property Which
Supported by Which
Not Subject to Sale by
is Not by Ordinary Legal Process. .............................................. 14
Process. ................................................14 ..
5. The Receiver Order, the Turnover Order and the Sale Order Were
The Were
Supported by Non—Exempt Property Which
by Sufficient Evidence of Non-Exempt Which
is Not by
Not Subject to Sale by Ordinary Legal Process.
Process. ................................................14
.............................................. ..14
6. Do Not
Appellants Do Have the Right to a Jury Trial on
Not Have on the
Order ..................... ..16
Appointment of a Receiver, the Turnover Order or the Sale Order.......................16
7. The Court Lacks Jurisdiction to Review
The Review the Receiver’s
Appointment as Master in Chancery......................................................................18
Appointment Chancery .................................................................... ..l8
PRAYER ..................................................................................................................................... 19
PRAYER.......................................................................................................................................
.. l9
i
SUPPLEMENTAL LIST
SUPPLEMENTAL OF PARTIES
LIST OF PARTIES
Pursuant to the Rules 38.2(a)(1) and 38.1(a)
38.l(a) of the Texas Rules of Appellate
Procedure, Appellees file filed by
file this supplement to the list of parties filed by Appellants,
which Eva Engelhart, the court-appointed receiver, as an Appellee.
which omitted Eva Appellee. Ms.
was the movant
Engelhart was movant in two
two of the three orders in this appeal. Therefore,
Therefore, she
Appellee.
is clearly an Appellee.
Appellee:
Appellee: Eva S. Engelhart
Eva
May, Cron
Ross, Banks, May, & Cavin, P.C.
Cron &
2 Riverway, Suite 700
77056-1919
Houston, Texas 77056-1919
Appellee:
Attorney for Appellee: Appearing pro
pro Se
se as court-appointed receiver
ii
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TABLE OF
TABLE OF AUTHORITIES
AUTHORITIES
Page(s)
CASES
CASES
Bahar v. Lyon Fin.
Bahar v. Fin. Servs.,
Servs.,
330 S.W.3d App.—Austin 2010, pet. denied) ..................................18
S.W.3d 379 (Tex. App.—Austin ................................ ..18
Bergeron v.
v. Sessions,
561 S.W.2d 551
561 S.W.2d App.—Dal1as 1977,
551 (Tex. Civ. App.—Dallas refd n.r.e.) ....................17
1977, writ ref’d .................. ..17
Block
Black v.
V. Shor,
443 S.W. 3d 170
443 App.—Corpus Christi 2013, no pet.) ...........................13
170 (Tex. App.—Corpus ......................... 13 ..
Boger
Boger v. Moore,
Moore, Inc.,
1/.
S.W.2d 646, 649
196 S.W.2d
196 App.—Beaumont 1946,
649 (Tex. Civ. App.—Beaumont no writ) ...................17
1946, no ................. ..17
Congleton v.
v. Shoemaker,
No. 09-11-00453—CV, 2012 WL
No. 09-11-00453-CV, WL 1249406 App.—Beaumont Apr.
1249406 (Tex. App.—Beaumont
12,
12, 2012, pet.
pet. denied) (mem. op.) ....................................................................19
.................................................................. ..19
Cross v.
v. Cross,
738 S.W.2d App.—Corpus Christi 1987,
S.W.2d 86 (Tex. App.—Corpus dism’d w.o.j.).............16
1987, writ dism’d w.o.j.) ........... 16 ..
Exec. Benefits
Exec. Benefits Ins. 1/. Arkison (In re Bellingham
Ins. Agency v. Bellingham Ins. Ins. Agency,
Agency, Inc.),
134 2165 (2014).............................................................................7,
134 S. Ct. 2165 9,10
(2014) ........................................................................... ..7, 9, 10
Ferguson
Ferguson v.
v. Ferguson,
210 S.W.2d App.—Austin 1948,
S.W.2d 268 (Tex. Civ. App.—Austin n.r.e.) .................. 17
1948, writ ref’d n.r.e.)....................17 ..
v. Dorfif
Gunther v. Dorff,
296 App.—Waco 1956,
S.W.2d 638 (Tex. Civ. App.—Waco
296 S.W.2d dism’d) ......................... ..16
1956, writ dism’d)...........................16
Hennigan v. Hennigan,
Hennigan v.
SW 2d
666 SW App.—H0ust0n [14
2d 322 (Tex. App.—Houston th
[14‘h writ dism’d) ............15
1984, Writ
Distr.] 1984, .......... 15 ..
Henry v.
v. Masson,
333 App.—Houst0n [1st
S.W.3d 825 (Tex. App.—Houston
333 S.W.3d Dist.] 2010, no pet.) .....................16
[1stDist.] ................... ..16
In re BP
BP RE,
RE, L.P.,
th
279 (5
735 F.3d 279 (5th 2013) ..................................................................... ..7, 8, 9
Cir. 2013).......................................................................7,
iii
iii
4476732v1
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Moody
Moody v.
v. State,
S.W.2d 158
538 S.W.2d App.—WacO 1976,
158 (Tex. Civ. App.—Waco ref'd n.r.e) ......................16
1976, writ ref’d .................... ..16
Moyer v. Moyer,
Moyer v. Moyer,
183 S.W. 3d 48 (Tex. App. Austin, 2005, no pet.) .....................................13,
183 18
................................... ..13, 18
v. Brown,
v.
Pillitteri
165 S.W.3d 715 (Tex. App. 2005) ...................................................................15
165 S.W.3d ................................................................. ..15
Sheikh v.
v. Sheikh,
248 S.W.3d 381
248 S.W.3d 381 (Tex. App. Houston 1st
1st Dist. 2007) .......................................18
..................................... ..18
Steenland v. Commerce Bank
v. Texas Commerce Nat. Ass
Bank Nat. Ass’n,
’n,
648 S.W.2d App.—Ty1er 1983,
S.W.2d 387 (Tex. App.—Tyler refd n.r.e.) .............................17
1983, writ ref’d ........................... 17 ..
Stem v.
Stern v. Marshall,
Marshall,
564 U.S.2(2011)
U.S. 2 (2011)...........................................................................................7,
......................................................................................... ..7, 8
Suttles v. Vestin Realty Mortg.
v. Vestin Mortg. I,I, Inc.,
Inc.,
317 S.W.3d 412
317 S.W.3d 412 (Tex. App. Houston [1st
App.—Houston no pet.) .....................15
Dist.] 2010, no
[1stDist.] ................... ..15
v. McCarthy,
Tanner v.
274 S.W.3d
274 S.W.3d 311 App.—Houston [1
311 (Tex. App.—Houston
st
[15tDist.]
Dist.] 2008, no pet.) .... 10,
10, 13,
13, 14, 18
14, 18
SSTATUTES
TATUTES
TEX.
T CIV.
EX. C PRAC.
IV. P & RREM.
RAC. & CODE
EM. C ANN.
ODE ANN. §
§ 31.002(a) ................................
.............................. 10,
10, 11,
11, 14, 16
14, 16..
TEX.
T CIV.
EX. C PRAC.
IV. P & RREM.
RAC. & CODE
EM. C ANN.
ODE ANN. § 31.002(h) .................................... ..11,
§ 31.002(h)...................................... 11, 12, 13
12, 13
TEX.
T CIV.
EX. C PRAC.
IV. P & RREM.
RAC. & CODE
EM. C ODE §
§ 31.002(b)(2) ................................................10, 12
.............................................. ..10, 12
TEX.
T CIV.
EX. C PRAC.
IV. P & RREM.
RAC. & CODE
EM. C ODE §
§ 31.002(b)(3) ................................................10, 11
.............................................. ..10, 11
TEX.
T CIV.
EX. C PRAC.
IV. P & RREM.
RAC. & CODE
EM. C ODE §
§ 31.0025 .............................................................15
........................................................... ..15
OTHER
O AUTHORITIES
THER AUTHORITIES
ofCiVi1
Rule of 171 ................................................................................ ..18
Civil Procedure 171..................................................................................18
iv
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STATEMENT OF
STATEMENT THE CASE
OF THE CASE
This appeal is the Appellants’ most recent dilatory tactic in a lengthy dispute
More than four years ago, William
non-payment of a promissory note. More
regarding non-payment
West (the “Trustee”) obtained a judgment
G. West judgment of approximately $1.2 million against
the Appellants in the United States Bankruptcy Court for the Southern District of
Texas. After a series of frivolous appeals by
Texas. by Appellants, including a petition for
certiorari denied by Supreme Court, the Trustee domesticated
by the United States Supreme
th
the judgment 2701*‘
judgment in the 270 Texas.
District Court of Harris County, Texas.
Tanguy admitted in an affidavit of net worth that he has significant
Philippe Tanguy significant
non-exempt assets, including a rental property in Houston, non-exempt
non-exempt non-exempt income
income
owned entities, and an airplane located in Georgia. After a
from his wholly owned
from
which Tanguy’s
hearing at which Tanguy’s affidavit was introduced into evidence, the District
affidavit was
Eva S. Engelhart (the “Receiver”) as receiver.
Court ordered the appointment of Eva
The Receiver subsequently obtained an order requiring Tanguy
The Tanguy to turn over the
rental property to her and an order authorizing her to sell the property.
property.
The Appellants appealed (i)
The (i) the order appointing the Receiver, (ii)
(ii) the order
them to turn over the rental property to the Receiver, and (iii)
requiring them (iii) the order
authorizing the Receiver to sell the rental property.
1
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STATEMENT IN
STATEMENT IN OPPOSITION TO ORAL
OPPOSITION TO ARGUMENT
ORAL ARGUMENT
Appellees believe that the legal issues presented in this appeal have been
authoritatively decided, and the facts and legal arguments are adequately presented
parties’ briefs.
in the parties’ briefs. was
Accordingly, oral argument is not necessary and was
by Appellants for the purpose of causing further delay.
requested by delay.
[Remainder of page left intentionally blank]
blank]
2
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STATEMENT OF
STATEMENT OF FACTS
FACTS
The Bankruptcy Court Judgment
The Bankruptcy and Appeals
Judgment and Thereof
Appeals Thereof
On March
On March 30, 2010, the Trustee obtained a judgment
judgment against Appellees in
amount of $1,183,090.80, plus post-judgment interest and attorney’s
the amount attomey’s fees in the
amount of $31,180.75
amount “
udgment”) (CR
$31,180.75 (the “Judgment”) CR at pp.
(CR at p. 5; see also CR 94-109).
pp. 94-109).
Judgment from the Bankruptcy Court to the United
Appellees appealed the Judgment
which affirmed the
States District Court for the Southern District of Texas, which
was frivolous, and awarded
Bankruptcy Court’s Judgment, found that the appeal was awarded
(CR
the Trustee reasonable and necessary fees and costs for defending the appeal. (CR
at pp. 69-93).
of Appeals
Appellees then appealed to the United States Court of Appeals for the Fifth
Circuit, which (CR at pp.
Judgment. (CR
which also affirmed the Bankruptcy Court’s Judgment. pp. 59-68).
by the
Finally, Appellees had their petition for writ of certiorari denied by
Supreme (CR at pp. 26-113).
Supreme Court of the United States. (CR 26-113).
of the Judgment
Domestication of and Appointment
Judgment and of the Receiver
Appointment of
On November
On November 8, 2013, the Trustee domesticated the Judgment 2701“
Judgment in the 270 th
(CR at pp. 5-11).
District Court of Harris County, Texas (the “District Court”) (CR 5-11).
On November
On November 11, filed an Application for Turnover After
11, 2013, the Trustee filed
“
Judgment Appointment of a Receiver and Master (the “Application
Judgment and For Appointment pplication to
(CR at pp. 12-14).
Appoint a Receiver”) (CR 12-14).
3
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On April 25, 2014, following an unsuccessful mediation, the District Court
On
(RR Apr.
held an evidentiary hearing on the Application to Appoint a Receiver. (RR
2014).
25, 2014).
At the hearing, counsel for the Trustee introduced two
At two exhibits—Tanguy’s
exhibits—Tanguy’s
2009 through
sworn affidavit of net worth and his federal tax returns for the years 2009
2012. (RR CR at pp. 162-164).
(RR April 25, 2014, at pp. 3:24-4:3; CR 162-164). Appellants
no evidence at the hearing.
introduced no hearing.
on
non-exempt assets listed on
Counsel for the Trustee argued that any of three non-exempt
Tanguy’s affidavit of net worth supported the appointment of a receiver—income
Tanguy’s receiver—income
from a rental property located at 1714
from 1714 Driscoll Street in Houston, Texas (the
income of several hundred thousand dollars in the form
Propemj’), income
“Driscoll Property”), form of
from Tanguy’s
distributions from owned entities, and an airplane located in
Tanguy’s wholly owned
(RR April 25, 2014, at pp.
Georgia. (RR pp. 5:1-6:17; pp. 8:1-25).
821-25).
On April 25, 2014, the District Court signed and entered the Order Granting
On
which
Turnover and Appointing Receiver and Master (the “Receiver Order”), which
appointed Eva (CR at pp. 136-143).
Eva S. Engelhart as the Receiver. (CR 136-143).
and Authorizes the Receiver to
The District Court Orders Appellees to Turnover, and
The
Sell, the Driscoll Property
On May
On May 23, 2014, the Receiver filed Emergency Motion
filed an Emergency Compel
Motion to Compel
To Retain Real Estate Broker and to Sell
Non-Exempt Real Property, To
Turnover of Non-Exempt
Non-Exempt Real Property (the “Motion
Non-Exempt Compe ”). (CR
“Motion to Compel”). (CR at pp. 147-150).
pp. 147-150).
4
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On May
On May 30, 2014, the District Court held a hearing on the Motion
Motion to
(R May
Compel. (RR May 30, 2014). The
The Receiver appeared at the hearing pro
pro Se
se and
counsel. (RR
Appellees appeared through counsel. May 30, 2014, at p.
(RR May The Trustee did
p. 2). The
Motion to Compel. Id.
not appear at the hearing on the Motion Id.
On May
On May 30, 2014, the District Court entered its Order to Compel
Compel Turnover
Non-Exempt Real Property, to Retain Real Estate Broker and to Sell Non-
of Non-Exempt Non-
Exempt Real Estate (the “Turnover
Exempt (CR at pp. 182-83).
“Turnover Order”). (CR 182-83).
The District Court Approves
The Approves the Sale of
of the Driscoll Property
On July 9, 2014, the Receiver filed
On Motion to Sell Real Property at 1714
filed her Motion 1714
App’x A.
Driscoll St. See App’x
On October 10,
On Amended Order to
10, 2014, the District Court entered its Third Amended
1714 Driscoll St. (the “Sale Order”). See App’x
Sell Property at 1714 App’x B.
On October 30, 2014, Appellees timely filed
On filed a notice of appeal of the Sale
Order. See App’x The notice of appeal of the Sale Order was
App’x C. The was docketed in this
App’x D.
on October 31, 2014. See App’x
appeal on
of additional items to be
file a notice of designation of
Appellants did not file
December 29,
included in the record for this appeal related to the Sale Order until December
App’x E.
2014. See App’x E.11
1
'
Appellants’ designation of the record in connection with the Sale Order has not been completed by
Appellants’ by the clerk’s
office. Appellees have included the relevant documents Appendix to this brief.
documents in the Appendix documents in the
brief. All of the documents
Appendix will be part of the supplemental
Appendix supplemental record.
record.
5
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SUMMARY OF
SUMMARY OF ARGUMENT
ARGUMENT
The Trustee obtained the Judgment
The Judgment four years ago and domesticated it in the
Tanguy admitting that he has hundreds of
District Court over a year ago. Despite Tanguy
non-exempt assets and the Driscoll Property being under
thousands of dollars in non-exempt
five months, the Trustee has not recovered a single dollar from
contract to sell for five
the Appellants as a result of this frivolous appeal.
Each of Appellants’
Each Appellants’ seven points on appeal lack any merit in the law or the
undisputed facts in this case.
case. Appellants’ made in slightly
Appellants’ primary argument, made
modified forms in points of appeal 2, 4, and 5, is that they should not be compelled
non-exempt property to the Receiver and, instead, they have the
to turn over all non-exempt
how their non-exempt
right to dictate how non-exempt assets are monetized. Appellants attempt to
from laws designed to assist
transmogrify the receiver and turnover statutes from
judgment non-exempt assets from
judgment creditors in collecting non-exempt from recalcitrant judgment
judgment
benefit and protection of
debtors, like the Appellees, into statutes designed for the benefit
judgment Appellants’ arguments ultimately fail because they require the
debtors. Appellants’
judgment debtors.
Court to ignore the plain language of the statutes and read additional elements into
the statutes that do not exist.
unavailing. Point of appeal
Appellants’ remaining arguments are equally unavailing.
No. 11 is foreclosed by Supreme Court decision; point of appeal no. 3 was
by a recent Supreme was
reversed by of appeal no. 6 is contrary to long-
by statute nearly a decade ago; point of
6
4476732v1
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standing Texas case law; and the Court does not have jurisdiction to consider point
of appeal no. 7.
ARGUMENT
APPELLEES’ ARGUMENT
APPELLEES’
1. There No Legal Support
There is No Support for Appellants’ Collateral Attack on the
Attack on
Judgment.
Validity of the Judgment.
Appellants’ on appeal
first issue on
Appellants’ first on the validity of the
is a collateral attack on
Judgment based on the Bankruptcy Court’s alleged lack of subject matter
Judgment
jurisdiction. Appellants misstate the procedural posture
jurisdiction. of the rulings on this issue
of
below and, based on that incorrect description,
below description, argue that there has been a change
Judgment. See In re BP
in applicable Fifth Circuit law that invalidates the Judgment. BP RE,
RE,
L.P., 735 F.3d th
(5th
279 (5 Cir. 2013). Not only is the Fifth Circuit’s BP
2013). Not BP RE
RE decision
Supreme Court recently issued an
inapplicable to this case, the United States Supreme
opinion that validates bankruptcy court judgments,
judgments, such as the one in this case, that
were affirmed after de novo review by
by federal district courts sitting as intermediate
Exec. Benefits
courts of appeal. See Exec. Ins. Agency v. Arkison (In re Bellingham Ins.
Benefits Ins. 12. Ins.
Agency,
Agency, Inc.), 134 S. Ct. 2165 (2014).
Inc.), 134
what is set forth in Appellants’
Contrary to what Appellants’ brief, they have never previously
Judgment on the basis of lack of
challenged the Judgment of subject matter jurisdiction or
The Supreme
Court. The
constitutional authority of the Bankruptcy Court. Supreme Court issued its
watershed decision regarding bankruptcy court jurisdiction and constitutional
jurisdiction and
v. Marshall,
authority in Stern v. 564 U.S. 2 (2011), during the pendency of the
Marshall, 564
7
4476732v1
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Appellants’ Judgment to the federal district court.
Appellants’ appeal of the Judgment court. The federal
The
brief the issue and ultimately ruled that Stern did
district court asked the parties to brief
not apply. (CR at pp. 69-93). Appellants then filed
apply. (CR filed an appeal to the Fifth Circuit.
The appeal raised the issue of whether, in light of Stern,
The Stem, the Bankruptcy Court had
Appellants’ counterclaims
subject matter jurisdiction and authority to rule on Appellants’
against the estate. Couit
estate. However, the appeal did not argue that the Bankruptcy Court
lacked jurisdiction Judgment against the Appellants.
jurisdiction and authority to enter the Judgment (CR
Appellants. (CR
at pp. 59-68).
In their brief,
brief, Appellants falsely allege that the Fifth Circuit concluded that
waived or consented to the Bankruptcy Court’s subject matter
Appellants waived
jurisdiction The Fifth Circuit
and authority as to the Trustee’s claim against them. The
made such a finding
could not have made finding because the only issue presented in that appeal
was whether the Bankruptcy Court had
was had subject matter jurisdiction
jurisdiction and authority to
on Appellants’
rule on Appellants’ counterclaims against the bankruptcy estate.
estate.2
2
The goal of Appellants’ mischaracterization of the record below
The make it
below is to make
appear as if this case is subject to the Fifth Circuit’s ruling in BP
BP RE
RE that a party
cannot waive the constitutional requirements of authority under Article III. In
reality, no court has ever ruled that Appellants waived or consented to subject
2
On the issue of whether the Bankruptcy Court had subject matter jurisdiction
On Appellants’ counterclaims
jurisdiction to rule on Appellants’
Fifih Circuit held, as did the federal district court, that Stern
against the estate, the Fifth Stern did not apply. (CR at pp. 59-68).
apply. (CR
8
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BP RE
matter jurisdiction or constitutional authority. Therefore, BP on
RE has no bearing on
this case.
The Appellants are correct that there has been a significant
The significant change in case
law in the time since entry of the Judgment; they have just
just cited this Court the
wrong case. Rather than BP
wrong BP RE, the newly issued opinion applicable to this case is
Supreme Court’s ruling in Bellingham.
the Supreme Bellingham. Supreme Court
In that case, the Supreme
declined to address the waiver and consent issue decided in BP
BP RE. Bellingham,
Supreme Court ruled that bankruptcy court
134 S. Ct. at 2174-75. Instead, the Supreme
134
affirmed by
judgments in non-core matters must be affirmed by an Article III federal district
judge after de novo review. Id.
ale novo Id.
Supreme Court held that there is no
Critically, the Supreme no constitutional difference
between a district court’s de novo
between recommendation from
nava review of a report and recommendation from a
“final” bankruptcy court
nova review of a “final”
bankruptcy court and a district court’s de novo
judgment on appeal:
judgment on appeal:
At
At bottom, [Appellant] argues that it was entitled to have an Article
it was
III court review de novonova and enter judgment
judgment on the fraudulent
conveyance claims asserted by by the trustee. In effect, [Appellant]
The
received exactly that. The District nova review of
Court conducted de novo
summary judgment
the summary judgment claims, concluding in a written opinion that
there were no was
no disputed issues of material fact and that the trustee was
entitled to judgment
judgment as a matter of law. In accordance with its
statutory authority over matters related to the bankruptcy, see §§
l334(b), the District Court then separately entered judgment
1334(b), judgment in favor
same review from
of the trustee. [Appellant] thus received the same
of from the
District Court that it would have received if the Bankruptcy Court had
it would
treated the fraudulent conveyance claims as non-core proceedings
9
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under §§ 157(c)(1).
157(c)(1). In short, even if [Appellant] is correct that the
Court‘s entry of judgment
Bankruptcy Court's was invalid, the District
judgment was
own valid
Court's de novo review and entry of its own final judgment
Valid final judgment cured
any error.
error.
Bellingham, 134 S. Ct. at 2175.
Bellingham, 134
Bellingham is directly applicable to this case. Even if Appellants were
Even were
and the Bankruptcy Court did not have constitutional authority to enter the
correct and
affirmation of the
Judgment, the federal district court’s de novo review and affirmation
Judgment cured any Article III deficiency.
Judgment deficiency. Therefore, there is no legal support for
Appellants’ collateral attack on the validity
Appellants’ Judgment and this argument is
Validity of the Judgment
more than a red herring.
nothing more
2. A Court
A May Require
Court May Judgment Debtor
Require a Judgment Turn Over
Debtor to Turn Non-
Over All Non-
Exempt Property to a Receiver.
Exempt
The Receiver was
The & Remedies
was appointed pursuant to Texas Civil Practices & Remedies
Code Ann. §§ 31.002(b)(3)
Code 3l.002(b)(3) (West 2008). In order for a court to grant relief under §
§
3l.002(b), it
31.002(b), it must find that the requirements of §§ 31.002(a)
must first find 3l.002(a) have been
satisfied. v. McCarthy,
satisfied. Tanner v. 274 S.W.3d
McCarthy, 274 App.—Houston [1
S.W.3d 311, 322 (Tex. App.—Houston st
[151
(“The relief allowed by
Dist] 2008, no pet.) (“The
Dist.] by section 31.002(b), may be
3l.002(b), therefore, may
when the conditions in section 31.002(a)
granted only when 3l.002(a) exist.”).
exist”). Section 31.002(a)
find that the judgment
requires the court to find owns some
judgment debtor owns non-exempt property
some non-exempt
“cannot readily be attached or levied on by
that “cannot TEX.
by ordinary legal process.” T CIV.
EX. C IV.
10
10
4476732v1
4476732v1
PRAC.
P & RREM.
RAC. & CODE
EM. C ANN.
ODE ANN. §
§ 31.002(a). Once that threshold showing has been
3l.002(a). Once
made under §§ 31.002(a), the court is free to grant relief under §§ 31.002(b).
made 31.002(b).
Under
Under Section 31.002(b)(1), may require the judgment
3l.002(b)(l), a court may judgment debtor to
“nonexempt property that is in the debtor’s possession or is subject to the
turnover “nonexempt
debtor's control.” Id. 3l.002(b)(l). Notably absent from the plain language of
Id. at §§ 31.002(b)(1).
non-exempt property cannot be
3l.002(b)(l) is any requirement that the non-exempt
Section 31.002(b)(1)
readily attached or levied on by The only requirement is
by ordinary legal process. The
non-exempt and in the debtor’s possession or subject to the
that the property be non-exempt
control. Similarly, Section 31.002(b)(3)
debtor’s control. “appoint a
3l.002(b)(3) allows a court to “appoint
nonexempt property,
receiver with the authority to take possession of the nonexempt property, sell it,
it,
pay the proceeds to the judgment
and pay judgment creditor to the extent required to satisfy the
judgment.”
judgment.” Id. 31.002(b)(3).
Id. at §§ 31.002(b)(3). from Section
Again, conspicuously absent from
non-exempt property cannot be readily
3l.002(b)(3) is any requirement that the non-exempt
31.002(b)(3)
on by
attached or levied on by ordinary legal process. Appellants’ argument asks this
process. Appellants’
Court to ignore the plain language of these statutes and engraft the ordinary legal
3l.002(a) onto Sections 31.002(b)(1)
process language found in Section 31.002(a) 3l.002(b)(l) and (3).
The plain language of Sections 31.002(a)
The 3l.002(a) and (b) establish that a court must
find that there is some
find non-exempt property that cannot be readily attached or
some non-exempt
by ordinary legal process and, once that showing has been made, it
levied on by may
it may
11
11
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order the judgment non-exempt property to a receiver.
judgment debtor to turn over all non-exempt 3
receiver.3 This
by Section 31.002(h)
conclusion is bolstered by which does not require a court to
3l.002(h) which
turnover. See T
specifically identify the property that is subject to turnover. TEX. CIV.
EX. C PRAC.
IV. P &
RAC. &
REM.
R CODE
EM. C ANN.
ODE ANN. § Appellants’ interpretation of Section 31.002(a)
3l.002(h). Appellants’
§ 31.002(h). 3l.002(a) and
make the statute internally inconsistent.
would contradict (h) and make
(b) would inconsistent. Not
Not only do
3 l.002(h) in their argument here, their next point of
the Appellants ignore Section 31.002(h)
4
statute.4
appeal argues for a ruling that is exactly the opposite of the statute.
3. The Plain Language
The Language of the Statute Does
Does Not
Not Require Turnover
Require the Turnover
Order to Specifically
Order Specifically Identify Property.
The Receiver Order provides the Receiver with “the
The power and authority to
“the power
take possession of all non-exempt (CR at pp. 136-37).
non-exempt property” of the Appellants. (CR 136-37).
was required to specifically
Appellants complain that the Receiver Order was specifically identify
property that is subject to turn over. This argument is directly contrary to the plain
language of the statute.
As discussed above, Texas Civil Practice and Remedies
As Code Section
Remedies Code
“appoint a receiver with the authority to take
3l.002(b)(2) permits a court to “appoint
31.002(b)(2)
3
The Appellants argument that there was
The was no
no or insufficient evidence of non-exempt property that cannot be
of any non-exempt
on by
readily attached or levied on by ordinary legal process is addressed in point of appeal nos.
nos. 4 and 5.
4
made transparent at the end of their argument on
Appellants‘ true motivation in this case is made
Appellants’ on point of appeal no. 2.
Appellants’ ultimate goal is to have the Driscoll Property sold at a constable’s
Appellants’ constable’s sale rather than for a fair market
value.
value. The District Court recognized that such a sale would
The would result in no
no recovery to the Trustee.
Trustee. (RR May 30,
(RR May
2014, at p. 12:10-13:4) (“My general response [to the Appellants’ complaint at having to pay
12:10-13:4) (“My pay broker and trustee’s
fees]
fees] is, my experience
is, my experience with that is,
is, at a constable’s sale it’s amount of
its only going to go for the amount ofthe
the liens.
liens. . . Because
. .
why would
why would anybody do anything else? . . . Generally speaking,
. . . speaking, you much
don’t generate very much
you know, constable sales don’t
my experience.”).
in excess of the lien, it’s been my Why would
experience"). Why would the Trustee, or any
anyjudgment
judgment creditor for that matter,
would minimize, rather than maximize,
select a path that would on the Judgment?
maximize, its recovery on Judgment’? In particular,
particular, the Trustee is
Chapter 7 trustee in bankruptcy with a fiduciary
a chapter maximize the distribution to creditors of the estate.
fiduciary duty to maximize estate.
12
12
4476732v1
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nonexempt property, sell it,
possession of the nonexempt pay the proceeds to the judgment
it, and pay judgment
creditor to the extent required to satisfy the judgment.” TEX.
judgment.” T CIV.
EX. C PRAC.
IV. P & RREM.
RAC. & EM.
CODE
C ODE §
§ 31.002(b)(2). may enter or
3l.002(b)(2). Further, Section 31.002(h) states that a “court may
enforce an order under this section that requires the turnover of nonexempt
nonexempt
property without identifying in the order the specific propertv subject
specific property subiect to
turnover.”
Subsection (h) of Section 31.002 became May 17,
became effective on May 2005. See
17, 2005.
TEx.
T CIV.
EX. C PRAC.
IV. P & RREM.
RAC. & CODE
EM. C ANN.
ODE ANN. § May 17,
§ 31.002(h) (West 2008) (effective May 17,
2005). Appellants cite only one case in support of their argument that a turnover
must specifically
order must property. See Mayer
specifically identify property. v. Mayer,
Moyer v. Moyer, 183 3d 48
183 S.W. 3d
(Tex. App.—Austin pet.). Mayer
no pet.).
App.—Austin 2005, no was decided on
Moyer was August 17,
on August 17, 2005, just
months after the effective date of Section 31.002(h), but failed to address the
three months
new Subsection (h). However, itit is clear that Mayer
new Moyer has been
been superseded by
by
statute.
On several occasions since the enactment of Section 31.002(h),
On 3l.002(h), courts of
meaning and held that a turnover order does not
affirmed its plain meaning
appeals have affirmed
specifically identify property.
need to specifically property. See, e.g., Black v.
See, e.g., v. Shor, SW. 3d 170,
Shar, 443 S.W. 170,
App.—Corpus Christi 2013, no pet.); Tanner v.
175 (Tex. App.—Corpus
175 274 S.W. 3d
v. McCarthy, 274
311, 320-21 App.—Houston [1
320-21 (Tex. App.—Houston st
[lst Dist.] 2008, no pet.).
pet.). Therefore, the
13
13
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4476732v1
Receiver Order is consistent with Section 31.002(h)
3 l .002(h) in that it
it requires Appellants to
non-exempt property to the Receiver.
turn over all non-exempt
4. The Receiver Order, the Turnover
The Order and
Turnover Order and the Sale Order Were
Order Were
Supported by
Supported by Sufficient Evidence of Non-Exempt
Sufficient Evidence Which is
Non-Exempt Property Which
Not Subject to Sale by
Not Ordinary Legal Process.
by Ordinary Process.
5. The Receiver Order, the Turnover
The Order and
Turnover Order and the Sale Order Were
Order Were
Supported by
Supported by Sufficient
Sufficient Evidence
Evidence of Non-Exempt
Non-Exempt Property Which
Which is
Not Subject to Sale by
Not Ordinary Legal Process.
by Ordinary Process.
fifth points of appeal, Appellants argue that there is no
In their fourth and fifth
evidence or, in the alternative, owned any non-
alternative, insufficient evidence that they owned
exempt property that cannot be readily attached or levied on by
exempt by ordinary legal
low threshold for a
process. This Court has previously established an extremely low
process.
judgment showing under Section 31.002(a):
judgment creditor’s showing 3 1 .002(a):
Section 31.002 does not specify, or restrict, the mannermanner in which
which
may be received in order for a trial court to determine
evidence may
whether 3l.002(a) exist, nor does it require
whether the conditions of section 31.002(a)
that such evidence be in any particular form, that it it be at any
particular level of specificity, or that it quantum
it reach any particular quantum
may grant aid under section 31.002.
before the court may 31.002. However, a trial
must nonetheless determine that the request for aid pending
court must
before the court falls within the scope of section 31.002 before it it
enters an order granting relief under that section. making this
section. In making
determination,
determination, the trial court must
must have some
some evidence before it
it that
establishes that the necessary conditions for the application of 31.002
exist.
exist.
S.W.3d at 322. Thus, all three District Court orders must
Tanner, 274 S.W.3d must be affirmed
non-exempt property that cannot readily be
if there is any of evidence of any non-exempt
on by
attached or levied on by ordinary legal process.
process.
14
14
4476732v1
4476732v1
At the hearing on the Application to Appoint Receiver,
At Receiver, counsel for the
Trustee introduced two exhibits—Tanguy’s sworn affidavit
two exhibits—Tanguy’s of net worth and his
affidavit of
(RR April 25, 2014, at pp.
2009 through 2012. (RR
federal tax returns for the years 2009
CR at pp. 162-164).
3:24-4:3; CR
3:24-4:3; 162-164). Appellants introduced no evidence at the hearing.
hearing.
non-exempt assets listed on
of three non-exempt
Counsel for the Trustee argued that any of
Tanguy’s affidavit of net worth supported the appointment of
Tanguy’s of a receiver:
receiver: (1) rental
income from the Driscoll Property, (2) income of several hundred thousand dollars
income
owned entities, and (3) an
Tanguy’s wholly owned
in the form of distributions from Tanguy’s
(RR April 25, 2014, at pp. 5:1-6:17;
airplane located in Georgia. (RR 521-6217; pp.
pp. 8:1-25).
821-25).
on
filed an eleventh hour pleading the night before the hearing on
Appellants filed
the Application to Appoint Receiver which was no
which alleged that there was no equity in the
(RR April 25, 2014, at p.3:6-13
Driscoll Property. (RR p.3:6-13 and p. 5:6-12). That turned out
p. 5:6-12).
to be false and there is substantial equity in the Driscoll Property that will be
realized upon income from
upon the Receiver’s sale. However, the rental income from the Driscoll
non-exempt property that cannot readily be
by the Appellants is non-exempt
Property disclosed by
by ordinary legal process. See,
attached or levied on by See, e.g.,
e. g., Suttles v. Vestin Realty
v. Vestin
Mortg. SW3d
Mortg. I,I, Inc., 317 S.W.3d 412 App.—Houston [1
412 (Tex. App.—Houston st
[151 Dist.]
Dist.] 2010, no pet.).
pet.).
Tanguy’s income derived from
Tanguy’s from his various wholly-owned non-
wholly-owned entities is non-
exempt property that cannot readily be attached or levied on by
exempt by ordinary legal
process. See Hennigan
process. SW 2d
v. Hennigan, 666 SW
Hennigan v. 2d 322 App.—Houston [14
322 (Tex. App.—Houston th
[14”‘
15
15
4476732v1
4476732v1
1984, writ
Distr.] 1984, TEXAS
dism’d); T
Writ dism’d); C1v.
EXAS C PRAC.
IV. P AND R
RAC. AND REM. CODE
EM. CODE §
§ 31.0025. (RR
31.0025. (RR
2014 at p. 5:21-23
April 24, 2014 5:2l-23 and p. 9:15-18).
no doubt that the airplane located in Georgia is non-
Finally, there can be no
exempt property that cannot readily be attached or levied on by
exempt by ordinary legal
process because it Texas. See Pillitteri
it is not located in Texas. Pillilteri v. S.W.3d 715,
165 S.W.3d
v. Brown, 165
App.—Dallas 2005, no. pet.) (“The
722 (Tex. App.—Dallas (“The ordinary legal process by which
by which
A writ must be addressed to a sheriff
upon is a writ. A
property is attached or levied upon
or constable in the State of Texas, and directs the official to attach and hold the
defendant’s property as shall be found within his county.”).
The District Court was
The was presented with evidence regarding these three assets
them satisfies
and any one of them satisfies the requirements of Section 31.002(a).
3 1 .002(a).
6. Do Not
Appellants Do Have the Right to a:1 Jury Trial on
Not Have Appointment
on the Appointment
of a Receiver, the Turnover Order or the Sale Order.
Turnover Order Order.
It is a well-established principal that a judgment
judgment debtor does not have the
right to a jury receiver. See, e.g.,
jury trial on the appointment of a receiver. e. g., Cross v. Crass, 738
v. Cross,
S.W.2d App.—Corpus Christi 1987,
S.W.2d 86, 89 (Tex. App.—Corpus dism’d w.o.j.) (“The
1987, writ dism’d (“The
main suit and lies within
appointment of a receiver is an ancillary proceeding to the main
Accordingly, appellants are not entitled to a
the sound discretion of the trial court. Accordingly,
jury
jury trial on the trial court’s discretionary authority to appoint a receiver.”)
v. Dorfl
(internal citations omitted); Gunther v. 296 S.W.2d
Dorff, 296 S.W.2d 638, 639 (Tex. Civ.
Civ.
App.—Waco 1956,
App.—Waco (“The appointment of a receiver is a matter
1956, writ dism’d) (“The
16
16
4476732v1
4476732v1
of the judge of the court to Whom
resting largely and primarily in the discretion of whom the
application is addressed. Defendant is not entitled to a jury
jury trial [in] such
instance.”).
instance.”).
it has been held that the right to trial by
“Traditionally, it by jury
jury does not extend
v. Mosson,
to receivership proceedings.” Henry v. Masson, 333 S.W.3d App.—
S.W.3d 825, 848 (Tex. App.—
Houston [1st
Houston [lst Dist.] pet); see also Moody
Dist.] 2010, no pet.); Moody v. S.W.2d 158,
v. State, 538 S.W.2d 158,
161 (Tex. Civ.
161 App.—Waco 1976,
Civ. App.—Waco refd n.r.e).
1976, writ ref’d n.r.e). “[A] court of competent
jurisdiction may appoint a receiver,” and as a result, a hearing on receivership
may receivership
proceedings is “inherently incapable of being determined by jury.” Boger
by a jury.” Boger v.
v.
Moore, Inc., 196 S.W.2d 646, 649
196 S.W.2d App.—Beaumont 1946,
649 (Tex. Civ. App.—Beaumont no writ).
1946, no writ).
The reasoning behind this rule is that because “receivership property is in custody
The
management and control is that of the court; jury intervention would
of the law, its management would
management of the receivership from
impermissibly transfer control and management from the court
to the jury.” Bergeron v. Sessions, 561
Bergeron v. S.W.2d 551, 554 (Tex. Civ. App.—Dallas
561 S.W.2d App.—Dallas
1977, writ ref’d n.r.e.) (citing Ferguson
1977, v. Ferguson, 210
Ferguson v. S.W.2d 268, 269
210 S.W.2d 269 (Tex.
App.—Austin 1948,
Civ. App.—Austin
Civ. 1948, writ ref‘ d n.r.e.)). Thus, after the appointment of the
Writ ref’d
Receiver, Appellants did not have the right to a jury trial in connection with the
5
Order.5
Receiver’s motions leading to the Turnover Order and Sale Order.
5
of their argument that they were entitled to a jury
Appellants cite only one case in support of jury trial, Steenland v.
v. Texas
Commerce Bank
Commerce Bank Nat.
Not. Ass
Ass’n, S.W.2d 387, 391
‘n, 648 S.W.2d 391 (Tex. App.—Tyler 1983,
(Tex. App.—Tyler rerd n.r.e.).
1983, writ ref’d The issue in Steenland
n.r.e.). The
was whether the appellant had the right to a jury
was jury trial on non-exempt portion of his homestead,
on the valuation of the non-exempt homestead.
In the present case, Appellants admitted in the TanguyTanguy Affidavit that the Driscoll Tanguy’s
Driscoll Property is not Tanguy’s
17
17
4476732v1
4476732v1
PTRE had the right to a jury trial on
Finally, Appellants argue that PTRE on its plea in
intervention. The
intervention. PTRE’s plea in intervention.
The District Court has not ruled on PTRE’s intervention.
PTRE is not yet a party to the proceeding below
Therefore, PTRE below and cannot be an
appellant in this case. Accordingly, this argument should be disregarded because
PTRE has no standing to make
PTRE make such argument in this appeal.
7. The Court
The Court Lacks Review the Receiver’s Appointment
Lacks Jurisdiction to Review Appointment as
Master in Chancery.
Master
final argument is that the District Court abused its discretion by
Appellants’ final by
granting master in chancery powers to the Receiver. This Court does not have
jurisdiction to consider this argument.
which is generally considered
“[U]nlike a post-judgment turnover order, which
appealable—a post-judgment order appointing a master in chancery is not
final and appealable—a
final
final and appealable.” Sheikh v.
final v. Sheikh, 248 S.W.3d App.—
S.W.3d 381, 393 (Tex. App.—
Houston [1st
Houston Dist.] 2007, no pet.). There is no appellate jurisdiction over an order
[lst Dist.]
when that order is embedded
appointing a master in chancery even when embedded within a
turnover-and-receivership order.
turnover-and-receivership Id. (citing Mayer
order. Id. Moyer v. Mayer,
Moyer, 183 S.W.3d 48, 51
183 S.W.3d 12. 51
App.—Austin 2005, no pet.)).
(Tex. App.—Austin “The Mayer
“The Moyer court reasoned that a post-
judgment final and appealable because Rule of
judgment master-in-chancery order is not final
Civil Procedure 171, which authorizes the order’s entry, requires further action by
171, which by
homestead non-exempt rental property.
homestead and is non-exempt property. Therefore, Steenland is not applicable because there is no dispute
non-exempt.
over whether the Driscoll Property is non-exempt.
18
18
4476732v1
4476732v1
the court; a master-in-chancery order is, final in the sense that it
is, therefore, not final it can
tumover-and-
Id. Instead, the master in chancery portion of a turnover-and-
be appealed.” Id.
mandamus. Id.
receiver order is only subject to review through mandamus. Id. at 394; see also
Bahar v. Lyon Fin.
Bahar v. Fin. Servs., 330 S.W.3d App.—Austin 2010, pet.
S.W.3d 379, 388 (Tex. App.—Austin
denied) (citing Mayer S.W.3d at 324 (same).
Moyer and Sheikh); Tanner, 274 S.W.3d
Appellants cite only one unpublished decision in support of their argument
that the District Court could not grant master in chancery powers to the Receiver.
Congletan v.
See Congleton 09-1 l-00453-CV, 2012
Shoemaker, No. 09-11-00453-CV,
v. Shoemaker, WL 1249406
2012 WL 1249406 (Tex.
App.—Beaumont Apr. 12,
App.—Beaumont 12, 2012, pet. denied) (mem. op.).
op.). However, the first
had vacated the master in
footnote in that decision indicates that the trial court had
chancery portion of the receivership order prior to the appeal and, therefore, the
appellate court did not discuss any master in chancery issues. Id.
Id. at n.1.
n.l.
Accordingly, this Court lacks jurisdiction to adjudicate the master in
made by
chancery arguments made Appellants.6
by Appellants. 6
PRAYER
PRAYER
affirm the District Court’s Receiver Order,
In conclusion, this Court should affirm
Turnover Order, and Sale Order and grant such other relief as is just.
just.
65
Under the heading of its seventh point on appeal, Appellants
Under two final,
Appellants slip in two arguments regarding the
final, frivolous arguments
“bias" and her fees. First, any appeal of the Receiver’s fees is premature.
Receiver’s alleged “bias” premature. She has not been
awarded non-exempt property due to this
awarded any fees because she has not been permitted to sell any non-exempt appeal. Second, as
this appeal.
was the movant
stated above, the Receiver is an appellee in this case because she was movant in two
two of three orders from which
from which
the Appellants appealed.
19
19
4476732v1
4476732v1
Date: January 2, 2015.
Respectfully submitted,
PORTER
P HEDGES
ORTER H LLP
EDGES LLP
By: /s/ Aaron
/S/ Power
Aaron J. Power
Joshua W.W. Wolfshohl
State Bar No. 24038592
No. 24038592
jwo1fShoh1@porterhedgeS.com
jwolfshohl@porterhedges.com
Aaron J.
Aaron Power
J. Power
Bar No.
State Bar 24058058
No. 24058058
apower@porterhedges.com
1000 Main
1000 36”th Floor
Main Street, 36
77002
Houston, Texas 77002
226-6000
(713) 226-6000
228-1331 (fax)
(713) 228-1331
ATTORNEYS FoR
ATTORNEYS F OR APPELLEE
APPELLEE
WILLIAM
WILLIAM G. WEST, CHAPTER
WEST, CHAPTER 7
TRUSTEE
T RUSTEE
and
and
By: Eva S. Engelhart
/s/ Eva
/S/
Eva S. Engelhart
Eva
Bar No.
State Bar 00796513
No. 00796513
May, Cron
Ross, Banks, May, & Cavin, P.C.
Cron &
2 Riverway, Suite 700
77056-1919
Houston, Texas 77056-1919
626-1200
(713) 626-1200
623-6014 (fax)
(713) 623-6014
Court Appointed
Court Appointed Receiver
20
4476732v1
4476732v1
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
Pursuant to Rules 6.363 and 9.5(b), (d), of the Texas Rules of Appellate
(d), and (e) of
2nd day of January 2015, a true and correct
on this 2nd
Procedure, this is to certify that on
was served on the following counsel of record by
copy of the foregoing was by U.S.
U.S. first
by electronic delivery as follows:
class mail and by
Joe Alfred Izen, Jr.
5222 Spruce Street
77401
Bellaire, Texas 77401
jizen@comcast.net
Tcmguy, 13500
Attorney for Appellant Philippe Tanguy,
Attorneyfar 13500 Air
express, L.L.C.,
express, 13500 Air Express,
L.L.C., 13500 Express, L.P. and
L.P. and
Intervenor, PTRE
Intervenor, PTRE Holdings,
Holdings, L.P.
L.P.
Power
Aaron J. Power
/s/ Aaron
Power
Aaron J. Power
Aaron
21
4476732v1
4476732v1
CERTIFICATE OF
CERTIFICATE COMPLIANCE
OF COMPLIANCE
type-Volume limitation of Texas Rule of
This brief complies with the type-volume
Appellate Procedure 9.4(i)(2)(C)
9.4(i)(2)(C) because this brief contains 4,722 words,
exempted by
excluding the parts of the brief exempted of Appellate Procedure
by Texas Rule of
9.4(i)(1).
9.4(i)(1).
This brief complies with the typeface requirements of Texas Rule of
Appellate Procedure 9.4(e) and the type style requirements of Texas Rule of
Appellate Procedure 9.4(e) because this brief
brief has been prepared in a proportionally
Word in 14-point
spaced typeface using Microsoft Word Times New
14-point Times Roman font or
New Roman
larger.
/s/ Aaron Power
Aaron J. Power
Aaron J. Power
Aaron J. Power
22
4476732v1
4476732v1
APPENDIX TAB
APPENDIX A
TAB A
Motion to Sell Real Property at 1714
Motion 1714 Driscoll Street
8333-001/ESE
NO. 2013-67779
WILLIAM G WEST, IN THE DISTRICT COURT OF
AS CHAPTER 7 TRUSTEE OF
RICHARD DAVIS,
Plaintiff
VS. (0)¢0'3¢01<0)f0><0)¢0>¢03¢0Jf0!<0‘!
HARRIS COUNTY, TEXAS
PHILIPPE TANGUY, 13,500 AIR
EXPRESS, LLC, AND 13,500 AIR
EXPRESS, LP,
Defendants 270"‘ JUDICIAL DISTRICT
MOTION TO SELL REAL PROPERTY AT 1714 DRISCOLL ST.
COMES NOW, Eva Engelhart, Court Appointed Receiver, in the above entitled case, and
would move the Court to sell real property subject to the Contract of Sale attached hereto.
1.
In support of this motion, Receiver would show that heretofore in this cause, Judgment
was rendered in favor of Plaintiff, William G. West, Trustee, against the Defendants on March
30, 2010, which judgment has now become final. Plaintiff proceeded to collect the judgment
by conducting extensive post judgment discovery, issuance of writs, and attending mediation.
At all times, the Debtor was non-compliant and obstructive. Ultimately, the Plaintiff was
forced to domesticate the judgment in Texas State Court and appoint a Receiver which
receivership order was singed April 25, 2014. A true and correct copy of the receivership order
is attached hereto as Exhibit A and incorporated herein by reference. Pursuant to the
Receivership Order, the Court authorized the Receiver to retain a real estate broker and sell
non-exempt real property located at 1714 Driscoll St. The Receiver retained, Joanne Roamer,
of BHGRE Gary Greene, which Listing Agreement is attached hereto as Exhibit B. Pursuant to
APPENDIX A
A
Roamer’s analysis of the property value, it was listed for $495,000.00. Ms. Roamer began
marketing the property and it is currently under contract for a pending sale for $540,000.00.
See Residential Contract attached hereto as Exhibit C.
NATURE OF THE NEGOTIATIONS AND CONTRACT
Ms. Roarner received multiple offers for the property ranging from the asking price to
$525,000.00. The receiver requested proof of funds and asked the broker to request the best
and highest offer from all bidders. Four offers came in ranging from $525,000.00 to
$540,000.00 cash with proof of ftmds and minimal closing expenses for the seller. The
Receiver accepted the $540,000.00 and entered into the attached contract. This amount is the
highest price to date in the neighborhood for a home of the size sold. The lot will be used for a
new construction of a single family home.
Per the estimated preliminary HUD Statement, attached hereto as Exhibit D, the two
mortgages on the property will be paid off for a total of $191,564.67, amount based on
November 2013 figures. The title company and receiver are seeking cooperation from the
mortgage companies and debtor to obtain current payoffs and anticipate the payoffs to be slightly
less than in 2013. The real estate broker will be paid $32,400.00 Additional closing costs are
$145.99 and the prorated taxes are $6,679.46. The net to the Receiver will be approximately
$309,206.28. After the receiver’s fee of 25% pursuant to the receivership order, the Plaintiff
will receive approximately $231,904.71 toward the judgment. The Defendant previously
alleged that the property would yield a higher balance to the Plaintiff if sold at a constable’s sale.
Such fire sales are for bidders interested in paying, no more than, very small premiums above the
lien price and the receiver’s fee would still apply to any amount above the liens. Consequently,
a Constable’s sale would not yield a payment toward the judgment of over $200,000.00.
Plus, further marking of the property may become counter-productive as outstanding
mortgage payments would accrue on the property. The two mortgage companies are aware of
the sale and the second mortgage payment is currently not due until August 3. The first
mortgage payment was due July 1, but the mortgage company was made aware that they will be
paid at July 31 closing.
Wherefore premises considered, Receiver prays for the court to authorize the sale and
distribution of funds as stated above and for such other and further relief to which Receiver may
show herself entitled at law or in equity.
Respectfully submitted,
ROSS, BANKS, MAY, CRON & CAVIN P.C.
BY:
Eva S. Engelhart #007965l3
2 Riverway, Suite 700
Houston, Texas 77056-1918
713/626-1200 (PHONE)
713/623-6014 (FAX)
CERTIFICATE OF SERVICE
Ihereby certify that a true and correct copy of the foregoing document has been mailed to
the Defendant’s attorney of record, Joe Alfred Izen, Jr., on July 2014, Certified Mail No.
,
7002 2410 0001 9171 7071, Return Receipt Requested, addressed to 5222 Spruce St., Bellaire,
Texas 77401.
Eva S. Engelhart
8333-001/ESE
NO. 2013-67779
WILLIAM G WEST, IN THE DISTRICT COURT OF
AS CHAPTER 7 TRUSTEE OF
RICHARD DAVIS,
Plaintiff
VS. COJCOJEO!(0H'0H0>(-0)(0‘!<01¢01<0)
HARRIS COUNTY, TEXAS
PHILIPPE TANGUY, 13,500 AIR
EXPRESS, LLC, AND 13,500 AIR
EXPRESS, LP,
Defendants 270T" JUDICIAL DISTRICT
ORDER TO SELL PROPERTY AT l7l4 DRISCOLL ST.
Plaintiffs Motion To Sell Real Property at 1714 Driscoll St. having been presented, and it
appearing to the Court that this motion in all respects should be granted.
IT IS THEREFORE ORDERED:
l. The Received is authorized to sell the property at 1714 Driscoll St. per the contract
attached hereto as Exhibit C.
2. Any encumbrances filed/asserted against the property at 1714 Driscoll St. by
Philippe Tanguy, 13500 Air Express LLC, and 13,500 Air Express L.P. and/or any of their
agents, entities controlled by him, etc. are ordered void and/or released as a matter of law.
3. Philippe Tanguy is to instruct Nationstar and CitiBank mortgages to provide current
payoffs to the Receiver and her title company and cooperate fiilly with the Receiver and her title
company.
4. That a Receiver’s Deed for the property at 1714 Driscoll St., is a valid legal deed by
which good title is to be transferred at closing;
SIGNED this the day of , 2014.
Judge Presiding
APPROVED:
ROSS, BANKS, MAY, CRON & CAVIN, P.C.
BY:
Eva S. Engelhart #00796513
2 Riverway, Suite 700
Houston, TX 77056-1918
713/626-1200 (PHONE)
713/623-6014 (FAX)
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been mailed to
the Defendant’s attorney of record, Joe Alfred Izen, Jr., on July , 2014, Certified Mail No.
7002 2410 0001 9171 7071, Return Receipt Requested, addressed to 5222 Spruce St., Bellaire,
Texas 77401.
Eva S. Engelhart
é '
Filed 13 November 14 P3.27
Chris Dantel - Dlstrlct Clerk
Harris County
ED101J017821157
No 2013-67779 By: john scott
WILLIAM G WEST, § IN THE DISTRICT COURT OF
AS CHAPTER 7 TRUSTEE OF § ’
RICHARD DAVIS, §
Plamtrff §
§
vs § HARRIS COUNTY, TEXAS
§
PHILLPPE TANGUY, 13,500 AIR §
EXPRESS, LLC, AND 13,500 AIR § 270th JUDICIAL DISTRICT
5 EV X
EXPRESS, LP, § .
Defendants §
ORDER GRANTING TURNOVER AND APPOINTING RECEIVER AND MASTER
On thls day came on to be heard the ApplIcatIon for Turnover After Judgment And For
Appotntmcnt of Rccetver and Master of Platntlff-In-Judgment, WIllIam G West, as the chapter 7 trustee
of the estate of Rrchard DavIs, (“Applrcant”) Afler the Court's revrew of the papers herem on file and all
testtmony and evndence, became of the opInIon that Appltcant Is enutled to collect upon a final, valrd
and subsrstmg Judgment agamst Defendants-In-Judgment, PhIlIppe Tanguy, 13,500 AIr Express, LLC,
and l3,500 AIr Express, LP (“Respondents"), saId Judgment havmg been sxgned on March 30, 2010, In
the Unlted States Bankruptcy Court for the Southern DIstrIct of Texas, Houston, DIvIsIon (“Bankruptcy
Court”) There remaIns a total amount due and owtng under the Judgment In the sum of$l,2l4,27l 55,
plus postjudgment Interest accrumg at the apphcable federal rate of 42% from fourteen dates after th
date of entry of the Judgment
The Court finds that ApplIcant has a good faIth reason to belIeve that Respondents own property (54 )
Includmg present or future nghts to property, that cannot be attached or levted on by ordmary legal
process and whtch Is not exempt from attachment, executton, or setzure for the satIsfactIon of lIabIlItIes
The Court finds that Appltcant Is entttled to aId from thIs Court and It Is therefore, ORDERED,
ADJUDGED AND DECREED
l whose address Is 2 Rtvenzvay, SuIte 700, Houston, Texas
77056, phone (713) 626-I200 ext 4020 1S hereby appotnted ReceIver In thIs cause pursuant to the
Texas Turnover Statute to serve afier postmg bond In the sum of $100 00 and takmg the oath of office
wIth all the power and authonty to take possessIon of all non-exempt property of Respondents that Is In
the actual or construcIIve possessIon or control of Respondents, Includmg but not Itmtted to all cash,
accounts recewable (Includmg lease payments, notes recewable, promtssory notes, drafis and checks,
34655J8vl
monies on deposit in financial institutions, financial accounts (bank accounts) brokerage accounts,
certificate of deposits, money market accounts, accounts held by any third party, stocks, bonds, all
securities, all real property, deeds to real propeny, titles to automobiles or other vehicles, boats, planes,
all safety deposit boxes or vaults and the contents therein, monies received by the Respondents in the
form of checks, cash or credit card payments or receipts, any and all causes of action or chooses of
action, contract rights whether present or future, and all furniture, fixtures, equipment, supplies and
inventory, and all documents, books and records related to any of said property (including financial
records) that is in the actual or constructive possession or control of Respondents, and to pay the
proceeds to the Receiver to the extent required to satisfy the amount owed under the judgment and this
receivership Receiver is authorized by the Court to obtain a writ of possession for any non-exempt real
property of Respondents and to obtain credit reports, bank searches and other reports to aid in locating
nonexempt property Receiver may order any Consumer Reporting Agency, as defined by the Fair
Credit Reporting Act (“FCRA") Section 16 USC Section l68lb(f) to provide consumer reports on
Respondents and witnesses as allowed under FCRA Section 168lb(a)(l)
2 That Applicant is awarded against Respondents and Respondents shall pay to Applicant the
sum of $500 00 in additional attorney's fees,
3 That any constable, deputy constable, sheriff, deputy sheriff or any other peace officer is
hereby authorized to accompany Receiver pursuant to a writ to locations designated by Receiver where
Receiver believes Respondents’ assets may be located, said peace officers being hereby Ordered to
prevent any person(s) from interfering with the Receiver from carrying out any duty under this Order or
interfering with any property in control of the Receiver, or any property subject to this Order
4 The Receiver is hereby authorized to take all action necessary to gain access to all real
property, leased premises, storage facilities and safe deposit boxes wherein any real and/or personal
propeny of Respondents may be situated and to seize the contents thereof
5 That any person or any agent of any person, with actual notice ofthis Order is not to interfere
with any propeny in control of the Receiver or subject to this Order, and is further Ordered not to
interfere with the Receiver in the carrying out of any duty under this Order Third parties are hereby
notified that the Receiver, to the exclusion of the Respondents, IS the party entitled to possess, sell,
liquidate and otherwise deal with Respondents’ non-exempt real and personal propeny and once any
third party receives notice of this order, they may be subject to liability should they release any propeny
to Respondents unless directed by the Receiver or the court
J-16S538vl
6 ReceIver Is authonzed but not requIred to (a) dIsable or remove any non-exempt property
belongtng to the Respondents or 'to place the property Into storage (b) Insure any property taken Into her
possessIon, and (c) change the locks to premIses belongmg to the Respondents
7 That Respondents make a full and complete dtsclosure to the Recetver of all of Respondents‘
non-exempt assets and to netther dtrectly nor Indtrectly Interfere or Impede the Recetver In her
performance of her dunes under thIs Order
8 Recetver shall have the power to subpoena from Respondents, thIrd partIes and wttnesses
productIon of documents, thIngs and Infon-natton Includmg but not lImIted to matters concemmg the
exIstencc, locatton, and/or value of Respondents’ assets and Respondents’ locatIon
9. That It Is hereby ordered that Recetver pay herself as receIver's fees an amount equal to 25%
percent of all proceeds commg Into her possessIon (not to exceed 25% of the amount owed under the
Judgment and receIvershIp), whtch shall be taxed as costs agamst Respondents, whtch the court finds IS
faIr, reasonable and necessary fee for the Recetver, and whIch receIver’s fees are In addmon to the
amounts owed under the Judgment and thIs receIvershIp, and Is further dIrected and authonzed to pay
ApplIcant’s attorney as Trustee for the Appltcant the remaInIng 75% of all proceeds comtng Into
ReceIver's possessIon No receIver’s fee exceedtng 25% of all proceeds commg Into her possessIon shall
be paId to the ReceIver unless an applIcatIon Is filed wIth and ruled by thIs court wIth notIce and
opportumty for heanng granted for ApplIcant and Respondents All ReceIver's fees wIll be taxed as
costs agatnst the Respondents
10 That to the extent owed under the tumover and receIvcrshIp, Respondents turnover to the
ReceIver at ReceIver's address stated above, wIthIn ten (10) days of Respondents’ recetpt of a copy of
thts Order, all checks, cash, secuntIes (stocks and bonds), promIssory notes, documents of tItle and
contracts, and Is hereby Ordered to conttnue to turnover to the ReceIver at the ReceIver's address all of
satd checks, cash, securItIes (stocks and bonds), promIssory notes, documents of tItle and contracts
wIthIn three (3) days from Respondents‘ recetpt and possessIon of such property, If, as and when
Respondents become In recetpt and possessIon of any such property
I l That Respondents are Ordered to turnover and delIver custody to the Recewer wIthIn ten (10)
"A" attached
days from Respondents’ recetpt of a copy of thts Order, the documents descnbed In ExhIbIt
hereto, together wIth all other documents and records requested by the ReceIver
I2. SpecIal Master. The appoIntment of a SpecIal Master Is _]uS[lfi€d to and the Court In the
performance of specIf'Ic dutIes whIch a sIttIng court cannot undertake, lIke servtng wrIts, levytng on
property, travelmg throughout the state to locate and Inspect assets, deltvermg the property to sales lots,
J06S538vI
and advertising for and locating prospective buyers, among other tasks A master will conserve the
resources of the Court on post Judgment matters, including locating and liquidating property Since the
Court cannot order a witness to travel more than 150 miles, a master is needed to travel to interview
witnesses
13 Appointment of a master will result in the need for fewer hearings, lower attomeys' fees,
and will protect the economic interests of the Applicant and Respondents
14 A master is able to immediately issue orders, rather than incumng the delays required for the
opportunity to be heard in open coun Otherwise, property, evidence, and witnesses can easily
disappear before a hearing can be held
15 The Receiver shall be appointed Master in Chancery, to have the broadest powers allowed
by the rules Good cause exists to appoint a master The master should be familiar with post Judgment
enforcement and the Receiver is All uses of the terms “Receiver" and “Master,” include the other term,
as allowed by law
16 The Master's duties are limited to locating non-exempt assets and the records that detennine
the ownership of the assets, their value, and the liens against the assets, and reporting her findings to the
Coun lf approved, the Master‘s findings will be binding.
17. Other Special Orders"
18. Notice: An Order of the Court has been entered against you. You have the right to hire
an attorney to assist you in compliance with this Turnover Order.
/ .
20
Signed this day of ,
Judge Presiding
346S$]3vl
Approved
Porter Hedges LLP
/s/ Aaron} Power
Joshua W Wolfshohl
State Bar No. 24038592
Aaron] Power
State Bar No. 24058058
1000 Mam St 36"‘ Floor
,
Houston, Texas 77002
(713) 226-6000
(713)228-1331 (fax)
Attorneys for the Applicant
l46S538vI
EXHIBIT "A"
DOCUMENTS TO BE PRODUCED
l Provide true, correct and complete copies ofall personal and business federal income tax returns filed by or
prepared for Respondents for the current year and for the last three (3) years prior to the current year, together with all
schedules, attachments, W-2 foniis, I099 foniis and all similar federal income summary forms for the satiie years
2 Provide all statements, canceled checks and deposit slips for all checking accounts, savings accounts, credit
union accounts or other depository accounts, held either separately or Jointly, for the current calendar year and for the last
three (3) years prior to the current calendar year for all accounts in which Respondents‘ name is on the printed checks. in
which Respondents have an interest and/or in which Respondents have signatory authority
3 Provide true, correct and complete copies of all financial statements prepared by or on behalf of
Respondents within the last three (3) years, including but not limited to, all such statements presented to any financial
instinition and/or any other party for the purpose of guaranteeing, securing or attempting to secure a loan or financial
assistance of any kind
4 All booklets, current andlor annual statements and all other documents evidencing the nature and extent of
Respondents’ rights under any stock option plan, retirement plan, pension or profit sharing plan, employee stock ownership
plan, company savings plan, thrifl fund matching plan and all other similar plans prepared or received during the last three (3)
years
5 Provide the most recent statements, deposit confirmation slips, documents evidencing the balance, term and
interest rates foreach and every amount of money and assets in which Respondents have any interest, whether separately or
tointly, invested by or for the Respondents in any cash management funds, certificates ofdeposit, money market funds,
treasury bills, bonds, debentures or any other type investment and acquisition paying or promising to pay a return on
Respondents‘ monies invested during the current year and for the three (3) calendar years prior to the current year
6 Provide all certificates of stock and/or brokerage house statements evidencing all ownership and every
purchase, sale, assignment or transfer of stocks, bonds, debentures and/or other securities (whether in privately held or
publicly traded companies or institutions) owned by Respondents or in which Respondents have a beneficial interest
7 documents and records ofevery kind or character showing all business holdings, partnerships
Provide all
and any other business organizations of
(general, limited or otherwise), sole propnetorships, trust, corporations, joint ventures
every kind in which Respondents are a partner or has an interest and any and all assumed name certificates under which
Respondents have done or are doing business
8 Provide all policies ofinsurance active and terminated in the current year and two (2) calendar years prior
year whether life, health, auto, disability, homeowners, personalty or otherwise ofwhich Respondents are the
to the current
owner, beneficiary, insured, heir to the proceeds, beneficiary ofexisting or identified trust funded by insurance proceeds
9 Provide all deeds, deeds of trust, land installment contracts, contracts for deeds, syndications, real estate
investment trusts, partnership agreements, easements, rights of way, leases, rental agreements, documents involving mineral
interests, mortgages, notes and closing statements relating to all real property in which Respondents
now have or in which
Respondents had an interest during the last three (3) years
l0 Provide all certificates of title, current licenses, receipts, bills of sale and loan documents for all motor
vehicles and farm equipment, including but not limited to automobiles, inicks, motorcycles, recreational vehicles, boats,
trailers, airplanes and other motorized vehicles and equipment owned by Respondents or in
which Respondents have and had
any interest
I l trust of which Respondents are a trustee, j0l|'II tnistee, beneficiary, seiilor or tmstor which
For every
conveyed, transferred, assigned, created any options to purchase, or disposed of any interest in real propeny or personal
property in any manner during the last three (3) years, please ftimish documents evidencing the manner ofdisposition
and the
consideration received or to be received Also, furnish all documents showing all evaluations of Respondents‘ interest. share
ofprincipal and income and documents showing the principal and income allocated to Respondents whether or not
distributed during the last three (3) years
)46S538vl
I2 Produce all documents and records ofall safe deposit boxes maintained by Respondents and to which
Respondents have had access, or has a claim, right or interest in, including all lists ofall contents therein ldeniify the
location of all said safe deposit boxes
l3 Produce all documents constituting and/or describing all accounts receivable ofkespondents whether or not
collected Also provide all documents identifying all accounts receivables ofall ongoing businesses which Respondents own
and in which Respondents had and have an interest and it copy ofall collected, offset. credited, uncollected, discounted,
assigned, pledged and exchanged accounts receivables
14 lfany real estate in which Respondents or ifapplicable, Respondents‘ present spouse have an interest has
been appraised within the past three (3) years, furnish a copy of each appraisal
15 If any personal property in which Respondents or if applicable, Respondents‘ present spouse has an interest
has been appraised within the past three (3) years, furnish a copy ofeach appraisal
I6 lf an inventory or list of personal property has been made by Respondents or if applicable, Respondents’
present spouse within the past three (3) years, fumish a copy ofsuch inventory or list including all estimates ofvaluc placed
on each item
17 Produce all documents, notes, bills, statements and invoices evidencing all current indebtedness payable by
Respondents or paid offdunng the last three (3) years and all assignments ofpromissory notes made by Respondents during
the last three (3) years
18 Produce all lease agreements for personal property and real property executed by Respondents within the
years andlor which are currently in effect, whether as lessee, lessor, sublessee, sublessor, assignee or assignor,
last three (3)
including any mineral interest leases
l9 Produce all records ofall travelers checks, cashier's checks, money orders, drafi and draws purchased or
cashed within the last three (3) years
20 Provide the names. addresses and telephone numbers ofall organizations and persons within Respondents‘
knowledge who has or may have knowledge of the status of property in which Respondents have and had an interest, whether
being community or separate property, the liabilities of Respondents and/or the location and value of any assets of
Respondents lnclude banks, savings and loan associations, mongagees, merchants, credit providers, brokers, credit unions,
financial institutions, security dealers, people and organizations dealing with mineral interests who have received information
from Respondents regarding or including information about Respondents’ assets and assets in which Respondents have an
ll‘ll¢|’CSL, Respondents‘ income and Respondents‘ liabilities
21 Provide documents and all records which would indicate the cost basis of assets presently owned by
Respondents
22 Provide a copy of the current inventory and all past inventories, accounts receivable of all ongoing
businesses which Respondents own and in which Respondents had and hasvcan interest and a copy of all collected, offset,
credited, uncollected discounted, assigned, pledged and exchanged accounts receivable of all businesses owned by
Respondents and in which Respondents have and had an interest
23 Provide all contracts in which Respondents are a party or in which Respondents have or had a beneficial
interest,including but not limited to any earnest money contracts, construction contracts and sales agreements in which
Respondents are due a commission or other remuneration lfRespondents are presently under the terms ofany written
employment contract and/or agreement or is due any remuneration under any past contract or agreement, furnish a true copy
of said contract or agreement
24 Provide minute books, ledgers, corporate records and resolutions penaining to Respondents or penaining to
any corporation In which Respondents have an interest
3465538vl
25 Provide documents by which every gifl, bailment, loan, gratuitous holding assignment, sale, hypothecation,
discounted transfer, transfer into lock box payment and transfer of Respondents’ property during the last three (3) years,
including, but not limited to, all property described hereinabove and any other propeny of any nature
26 Provide documents and records ofevery kind and character showing all personal property in which
Respondents have and had an interest in the State of Texas, the United States of America or any other place
27 Provide copies of the Anicles of Incorporation, pannership agreements and assumed name records of all
companies, partnerships, corporations and proprietorships that have owners, employees. officers. directors, shareholders and
partners which are or were also owners or employees ofkespondents
28 Provide employment records or pay records to indicate every business for which Respondents were
employed, provided services, was an independent contractor, general contractor, superintendent, agent or subcontractor
during the last three (3) years
29 To the extent not already produced in response to the foregoing, produce the following property, documents
and records which Respondents own or have an interest all checks, cash, securities (stocks and bonds), promissory notes,
deeds, deeds of trust, documents of title, contracts, accounts receivable, escrow agreements, retainage agreements, records
and all documents that identify all property in which Respondents have an interest and that which is collateral or security for
any obligation or contingent obligation of Respondents, along with all documents indicating any Interest of the Respondents
in rental agreements, royalty agreements, licenses, bailment agreements, filings pursuant to the Uniform Commercial Code,
security agreements, assignments, all filed or recorded liens, lis pendens, lawsuits, recorded Mechanics and Maicria|men's
Lien Affidavits, Judgments, abstracts, partnership agreements, employment agreements, as well as all documents indicating
Respondents’ present and prospective heirship, beneficial interest In trusts, beneficial interest in insurance policies and
insurance coverage and right to any insurance policy's cash surrender value or ownership
l465S38vl
LISTING AGREEMENT
l. This agreement is made by and between Eva Engelhart, in her capacity as Receiver and
Master of Plaintiff-in Judgment, William G. West, as the chapter 7 trustee of the estate of
Richard Davis, Case # 2013-67779, 270"‘ District Court, Harris County, Texas,
hereinafter referred to as “Seller” and Joanne Roemer of Better Homes and Gardens Real
Estate (BHGRE Gary Greene), hereinafter referred to as “Realtor”, pursuant
Gary Greene
to Court Order dated May 30, 2014.
In consideration of the services to be performed by Joanne Roemer, hereinafter called
Realtor, l hereby authorize the listing of the following property for sale by her as the
exclusive agent for a period of June 17, 2014- September 30, 2014. Realtor agrees to use
her best efforts to obtain a buyer for said property.
. Property Address: LT 14 BLK 72 HYDE PARK MAIN SEC 6, Hyde Park Court, Harris
County, Texas, commonly known as 1714 Driscoll St., Houston, Texas 77019.
A. Improvements: The house, garage and all other fixtures and improvements attached
to the above-described real property, including without limitation, the following
permanently installed and built-in items, if any: all equipment and appliances,
valances, screens, shutters, awnings, wall-to-wall carpeting, mirrors, ceiling fans, attic
fans, mail boxes, television antennas and satellite dish system and equipment, mounts
and brackets for televisions and speakers, heating and air-conditioning units, secinity
and fire detection equipment, wiring, plumbing and lighting fixtures, chandeliers,
water softener system, kitchen equipment, garage door openers, cleaning equipment,
shmbbery, landscaping, outdoor cooking equipment, and all other property owned by
Seller and attached to the above—described real property.
B. Accessories: The following described related accessories, if any: widow air
conditioning units, stove, fireplace screens, curtains and rods, blinds, window shades,
draperies and rods, door keys, mailbox keys, above-ground pool, swimming pool
equipment and maintenance accessories, artificial fireplace logs, and controls for; (i)
satellite dish systems, (ii) garage doors, (iii) entry gates, and (iv) other improvements
and accessories.
Listing Price: $495 000.00. Any and
sale is subject to court approval. All closing costs
fees (except Broker’s fee) are to be paid by Buyer. Taxes shall be prorated to the date of
closing and be deducted by escrow agent at closing and paid. All other sums are to be
paid to the Receiver. Any expenses incurred by Realtor in connection with the sale shall
be at her cost.
5. Special conditions:
A. Conveyance is to be made by Special Warranty Deed. Seller will convey such interest
as she has by virtue of her position as Receiver.
B. Sale is WITH ALL FAULTS” SELLER AND REALTOR MAKE NO
“AS IS,
REPRESENTATIONS OR WARRANTIES AS TO THE PROPERTY, ITS
CONDITION, ITS TITLE OR ITS SUITABILITY FOR ANY PURPOSE. BUYER
IS ADVISED TO SATISFY HIMSELF AS TO THE PROPERTY, ITS CONDITION
AND SUITABILITY.
6. Rea1tor’s Fees: Seller agrees to pay Realtor a commission of 6% of the gross sales price.
Realtor’s fee shall be paid by seller pursuant to Court order dated 5/30/14. No fee shall
be earned unless there has been a closing on the sale of the property. Should the Court
not approve said fee or find a lesser fee proper, then that fee approved by the Court, if
any, shall be the agreed fee to be paid to Realtor.
7. Notices: all notices shall be in writing and effective when delivered. Notices to Realtor
shallbe to Joanne Roemer, 17250 El Camino Real, Houston, Texas 77058, Phone 281-
486-1900, Fax 281-486-9201. Notice to Seller: Eva Engelhart, Receiver for Philippe
Tanguy, Ross, Banks, May, Cron & Cavin, 2 Riverway, Suite 700, Houston, Texas
77056, Phone 713-626-1200, Fax 713-623-6014.
8. This listing agreement contains the entire agreement between the parties and may not be
changed except by written agreement, approved by the Court.
Dated this day of ,
2014.
Realtor: Joanne Roemer
BHGRE Gary Greene
Eva Engelhart in her capacity 832%/er for Philippe Tanguy
Docusign Envelope ID: EBCAE6EE-9BAE~4B27-883A-83BC757B1037
PROMULGATED BY THE TEXAS REAL ESTATE
COMMISSION (TREC)
#251014
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ONE TO FOUR FAMILY RESIDENTIAL CONTRACT (RESALE)
NOTICE: Not For Use For Condominium Transactions
PARTIES: The Eva zngelhax.-t:,court
1.
(Seller) and
parties to this contract are
Croix (mecca Horus
gointed , Receiver
seller agrees to sell and convey (Buyer).
to Buyer and Buyer agrees to buy from seller the Property defined
below.
2. PROPERTY: The land, improvements and accessories are collectively
referred to as the “Property”.
A.LAND: Lot 14 Block 72 Hyde Park Main Sec 6
Addition. City of fiouggon County of Ba: '
Texas, known as
.
1714 Driscoll st. 77019
(address/zip code), or as described on attached
exhibit.
B. IMPROVEMENTS: The house. garage
and all other tlxtures and improvements attached to the
above-described real property, including without
limitation, the following permanently
and built-in items. if any: all equipment and installed
appliances, valances, screens, shutters,
awnings,
and brackets
for televisions and speakers. heating
and air~conditioning units. security and fire
detection equipment, wiring. plumbing and
lighting fixtures, chandeliers. water
kitchen equipment. garage door openers. softener system,
cleaning equipment, shnibbery, landscaping,
cooking equipment, and all other property owned outdoor
by Seller and attached to the above described
real property.
0. ACCESSORIES: The following described
related accessories, it any: window air
stove. fireplace screens, curtains and rods, blinds. conditioning units.
window shades, draperies and rods. door keys.
mailbox keys, above ground pool, swimming
pool equipment and maintenance accessories.
artificial fireplace logs, and controls for:
(i) garage doors. (ii) entry gates, and (iii) other
improvements and accessories.
D. EXCLUSIONS: The toilowing improvements
and accessories will be retained by Seller and must
be removed prior to delivery of possession:
3. SALES PRICE:
A. Cash portion of Sales Price payable by Buyer at closing
8. Sum of all financing described below (excluding any loan funding , , , , _ , _ _ _ _ _ _ _ _ _ , 5 540 ,ooo oo .
lee or mortgage insurance premium)
0. Sales Price (Sum otA and B) .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
$ .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..$ 540 O00 00
FINANCING (Not
.
use with reverse mortgage financing): The
,
4. tor
portion of Sales Price not
payable in cash will be paid as follows:(Check applicable boxes below)
[I A. THIRD PARTY FINANCING: One or more third party mortgage loans in the total
amount of
s Nil. (excluding any loan funding fee or mortgage insurance
premium).
(1) Property Approval: it the Property does not satisfy the lenders‘ underwriting
requirements for
the loan(s) (including, but not limited to appraisal, insurability
and lender required repairs),
Buyer may terminate this contract by giving notice to Seller prior to
closing and the earnest
money will be refunded to Buyer.
(2) Credit Approval: (Check one box only)
[j (a) This contract is subject to Buyer being approved for the financing described in the attached
Third Party Financing Addendum tor Credit Approval.
[X] (b) This contract is not subject to Buyer being approved for linancing
and does not involve FHA
or VA financing.
[:1 B. ASSUMPTION: The assumption oi the unpaid principal balance oi one or more promissory notes
described in the attached TREC Loan Assumption Addendum.
[1 C, SELLER FINANCING: A promissory note from Buyer to Seller of $ Nflt secured by
vendors and deed of and containing the terms and conditions described in the attached
trust liens,
.
TREC Seller Financing Addendum. if an owner policy oi title
insurance is furnished, Buyer shall
lumish Seller with a mortgagee policy of titlgmsurance.
a I I
TAR 1601 initialed for identification by Buyer L4'_l’_ and Seiler_; THEC NO. 20-12
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Docusign Envelope ID: EBCAE6EE-98AE~4B27-883A-833075731037
1714 Driscoll St.
Contract Concerning
Houston. TX 77019 Page 2 oi 9 4-28-2014
(Address at Property)
5. EARNEST MONEY: Unon execution cl _this contract
S
a
§4________j
400 00
ent, at
as earnest money with
.
2000 Berin Dr. Ste 1000 Hon
by all parties, Buyer shall deposit
Texas American Title as escrow
11 TX .
s all deposit additional earnest money ot $
dgys
atter the effective date of this contract. _,__:_____.______
(address), Buyer
Buyer to
with escrow agent within
required by s contract, Buyer will be in default.
It fails deposit the earnest money as
6. TITLE POLICY AND SURVEY:
A.TlTLE POLICY: Seller shall
or title
furnish
to Buyer at Seller's
insurance (Title Policy) issued by Texas American Titlgy U
B er's e xp e an Owner me l‘
Company) In the amount of the Sales Price, dated at or alter p(9|”:x%
iosslunder the provisions of the Title Policy. subject to closing, insuring Buyer a ainst
existing building and zoning ordinances) and the promulgated exclusions (inc?uding
the following exceptions:
(1) Restrictive covenants common to the platted subdivision in which
(2 The standard printed exception tor standby
the Property is located.
fees, taxes and assessmems.
(3 Liens created as part oi the financing described
in Paragraph 4.
(4) Utflity easements rxeated by the dedication
deed or plat of the subdivision in which the
Property is located.
(5) Reservations or exceptions otherwise pennitted
by Buyer in writing. by this contract or as may be approved
(6) The standard printed exception as to marital rights.
(7) The standard printed exception as to waters. tidelmds,
matters. beaches. streams, and related
(8) The standard printed exception as to discrepancies, contlicts,
encroachments or protrusions. or overtapping improvements:
lines,
shortages in area or boundary
amended ordelete trom the titl policy;
at the expense oi Buyer [5 Seller.
E (i)
(ii) will be amended to read, “shortages
will not be
in area"
B. COMMITMENT: Within 20 days after the
Title Company receives a copy of
Seller shall iumish to Buyer a commitment for
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