non-specific order to turn over "cash, money orders, checks .. . in any form and in anyone's possession which Burns beneficially owns or may own in the future" improperly extended to exempt and currently nonexistent property
How later courts described this case
- non-specific order to turn over "cash, money orders, checks .. . in any form and in anyone's possession which Burns beneficially owns or may own in the future" improperly extended to exempt and currently nonexistent property
- holding that turnover statute requires factual showing that judgment debtor has non-exempt property that is not readily subject to ordinary execution
Written by the judges who cited it.
The opinion
ACCEPTED
03-15-00128-CV
5606085
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/9/2015 3:21:27 PM
JEFFREY D. KYLE
CLERK
CAUSE NUMBER 03-15-00128-CV
FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
FOR THE THIRD COURT OF APPEALS 6/9/2015 3:21:27 PM
DISTRICT
AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
TEDDER. BLUNCK,
Appellant,
v.
CATHY A. BLUNCK,
Appellee.
ON APPEAL FROM THE 22N° DISTRICT COURT, HAYS COUNTY,
TEXAS
TRIAL COURT CAUSE N0.11-1217
APPELLANT'S BRIEF
RESPECTFULLY SUBMITTED:
TEDDER. BLUNCK, PRO SE
502 QUITMAN STREET
P 0 BOX 1152
PITTSBURG, TEXAS 75686
TELEPHONE: (903) 855-8460
TELECOPIER: (903) 855-8465
E-MAIL: tblunck@yahoo.com
Identity of Parties and Counsel
Appellant/Petitioner: Petitioner/Appellant's Appellate Counsel:
Tedde R. Blunck TeddeR. Blunck, ProSe
502 Quitman Street 502 Quitman Street
P 0 Box 1152 P 0 Box 1152
Pittsburg, Texas 75686 Pittsburg, Texas 75686
Telephone: (903) 855-8460 Telephone: (903) 855-8460
Telecopier: (903) 855-8465 Telecopier: (903) 855-8465
E-mail: tblunck@yahoo.com E-mail: tblunck@yahoo.com
Appellee/Respondent: Respondent/Appellee's Appellate Counsel:
Cathy A. Blunck Mr. Karl E. Hays
1433 Preston Road, Suite 1707 Law Office of Karl E . Hays, PLLC
Dallas, Texas 75254 2101 South Highway 35 , Suite 210
Mobile: (214) 668-9468 Austin, Texas 78741
Telecopier: unknown Telephone: (512) 476-1911
E-mail: cablunck@yahoo.com Telecopier: (512) 476-1904
service@haysfamilylaw.com
Respectfully Submitted:
i
II \ ,.,.--
~~-\_/
i./ · ~z""-"'---- - -
/
TeddeR. Blunck, ProSe
502 Quitman Street
P 0 Box 1152
Pittsburg, Texas 75686
Telephone: (903) 855-8460
Telecopier: (903) 855-8465
E-mail: tblunck@yahoo.com
II
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 11
TABLE OF CONTENTS 111
INDEX OF AUTHORITIES IV
STATEl\tfENT OF THE CASE 1
ISSUES PRESENTED 2
STATEl\tfENT OF FACTS 3
SUMMARY OF THE ARGUMENT 8
ARGUl\tfENT 13
PRAYER 23
CERTIFICATE OF NUNIBER OF WORDS IN BRIEF 24
CERTIFICATE OF SERVICE 24
APPENDIX 25
ll l
--~------
INDEX OF AUTHORITIES
CASES PAGE(S)
M-Cap, Inc. v. Republic of Congo,
462 F .3d 417 (5th Cir. 2006) 8, 14
Beaumont Bank, N.A. v. Buller,
806 S.W.2d 223 (Tex. 1991) 8, 14
Bergeron v. Sessions,
561 S.W.2d 551 (Tex. Civ. App.--Dallas 1977, writ refd n.r.e.) 21,22
Bergman v. Bergman,
828 S.W.2d 555 (Tex. App. - El Paso, 1992, no writ.) 19
Burns v. Miller, et al,
948 S.W.2d 317 (Tex. App. -Dallas, 1997, writ denied) 12, 18,20
Clayton v. Wisener,
169 S.W.3d 682 (Tex. App.--Tyler 2005, no pet.) 10, 16, 17
Elkins v. Stotts-Brown,
103 S.W.3d 664 (Tex. App.-Dallas 2003, no pet.) 17
Estate of Guerrero,
2015 Tex. App. Lexis 4121 (Tex. App.-Houston [14th Dist.], no pet.)_ 11, 16
Ex parte Johnson,
654 S.W.2d 415 (Tex. 1983) 8, 14
Finotti v. Old Harbor Co.,
1999 Tex. App. LEXIS 8514 (Tex. App. -- Dallas, no pet.) 9, 15
Garza v. Wilson,
2000 Tex. App. LEXIS 581 , (Tex. App.-Houston [14th Dist.], no pet.) 11, 17
Hodges v. Peden,
634 S.W.2d 8, (Tex. App.--Houston [14th Dist.] 1982, no writ) 23
iv
Jones v. Strayhorn,
321 S.W.2d 290 (Tex. 1959) 20, 22
Mansions in the Forest, L.P. v. Montgomery County,
365 S.W.3d 314 (Tex. 2013) 11 , 16
Mayo v. Suemaur Exploration & Prod. LLC,
2008 Tex. App. LEXIS 7164, (Tex. App.-Houston [14 1h Dist.], no pet.) 11 , 16
Moyer v. Moyer,
183 S.W.3d 48 (Tex. App.-Austin 2005, no pet.)_ _ _ __ 9, 12, 15, 18, 19
Roebuck v. Horn,
74 S.W.3d 160, (Tex. App.-Beaumont 2002, no pet.)_ _ __ 9, 12, 15, 17, 18
Schultz v. Fifth Judicial Dist. Court of Appeals at Dallas,
810 S.W.2d 738 (Tex. 1991)_ _ _ _ __ __ _ __ 9, 10, 15, 16, 19
Shanze Enters. V. Amigo MGA, LLC,
2014 U.S. Dist. Lexis 156512 (N.D. Tex. 2014)_ _ _ __ _ _ 9, 15, 19
Stephenson v. LeBoeuf,
2003 Tex. App. LEXIS 7967, (Tex. App.-Houston [14th Dist.], no pet.) 8, 9, 14, 15
Tanner v. McCarthy,
274 S.W.3d 311, (Tex. App.-Houston [lstDist.] 2008, no pet.) 8, 10, 14, 16
Williams Farms Produce Sales, Inc. v. R&G Produce Co.,
2014 Tex. App. LEXIS 3369, (Tex. App.-Corpus Christi, no pet.)__ 10, 15
STATUTES
Texas Civil Practice & Remedies Code§ 31.002_ __ __ _ _ 8, 11, 14, 17
Texas Property Code Section 42 _ __ _ _ _ _ _ _ __ __ 19
v
------
CAUSE NUMBER 03-15-00128-CV
IN THE COURT OF APPEALS
FOR THE TIDRD COURT OF APPEALS DISTRICT
AUSTIN, TEXAS
TEDDE R. BLUNCK,
Appellant,
v.
CATHY A. BLUNCK,
Appellee.
ON APPEAL FROM THE 22N° DISTRICT COURT, HAYS COUNTY,
TEXAS
TRIAL COURT CAUSE N0.11-1217
APPELLANT'S BRIEF
BRIEF OF APPELLANT
TO THE HONORABLE COURT OF APPEALS, FIFTH DISTRICT OF TEXAS:
TeddeR. Blunck files this Appellant brief and prays that the judgment of the
District Court be reversed and that the matter be remanded to the District Court for
a new trial.
0
- - - - - - - -- -
STATEMENT OF THE CASE
Course of Proceedings and Disposition Below
This appeal arises from an action brought by Tedde R. Blunck. Original
Petition for Divorce was filed on June 11, 20 11 in the District Court, 22nd Judicial
District, Hays County, Texas. On August 8, 9, and 16, 2012, the District Court
held a bench trial in the matter. Appellant filed a Request for Finding of Fact on
September 3, 2012. A Motion for Judgment with a proposed judgment was filed
October 3, 1012. A Final Decree of Divorce was signed October 24, 2012. A
second Request for Findings of Fact was filed on November 13, 2012. Finding of
Fact were signed on November 15, 2012. Appellant filed a Motion for New Trial
November 16, 2012. No order was entered on the Motion for a New Trial.
Appellant filed a Motion to Modify, Correct or Reform Judgment November 21,
2012. No order was entered on the Motion to Modify, Correct or Reform
Judgment. A Notice of Appeal was filed on January 22, 2013 . The Appeal was
dismissed and a Mandate was issued by this Court December 11 , 2014. Appellee
filed a Motion for Post-Judgment Receivership Pursuant to Section 31.002, Civil
Practices and Remedies Code on January 30, 2015 . (See Clerk's Record at 33,
Appendix at 33) Appellant filed an Objection and Special Exception to Appellee's
Motion for Post-Judgment Receivership Pursuant to Section 31.002, Civil Practices
and Remedies Code (See Clerk's Record at 85, Appendix at 85) and an Objection
- - -- -----
to Receiver's Motion to Approve Final Report of Receiver, for Payment of
Receiver's Fees and Expenses and to Discharge Receiver (See Clerk's Record at
81, Appendix at 81) on February 9, 2015 prior to the Hearing scheduled for that
day. A Hearing was held on the Motion February 9, 2015. Appellant did not
attend the Hearing. The District Comi did not rule on either of Appellant's
Objections. The District Court entered an Order Approving Receiver's Final
Rep01i, Authorizing Payment of Receiver's Fees and Expenses, and Discharging
Receiver and an Order Appointing Receiver Pursuant to Section 31.002, Civil
Practices and Remedies Code (See Clerk's Record at 72, Appendix at 72) on
February 9, 2015. Appellant filed his Notice of Appeal with the District Court
(See Clerk's Record at 90, Appendix at 90) February 26, 2015 appealing the
District Court's Order Appointing Receiver Pursuant to Section 31 .002, Civil
Practices and Remedies Code.
ISSUES PRESENTED
I. Whether the District Court abused its discretion by entering an Order for
turnover relief without any evidence in the record supporting the finding that
Appellant had any non-exempt property that cannot be readily attached or
levied on by ordinary legal process.
II. Whether the District Court abused its discretion because the turnover relief
2
ordered by the District Court is insufficiently specific regarding the property
to be turned over and extends to exempt property and property of third
parties.
m. Whether the Court abused its discretion when it awarded the Receiver, who
is an attorney, a fee of $300 per hour for all receiver services, his hourly rate
as an attorney, without consideration of a lesser reasonable fee when
performing non-attorney functions and when there is no evidence in the
record to support that the fees are usual and customary or reasonable and
necessary.
STATEMENT OF FACTS
The facts and circumstances relative to the case are these:
Appellant filed for divorce on June 15, 2011. The Parties were married on May
26, 1988 and ceased to live together on or about July 6, 2009. The District Court
granted the divorce August 16, 2012 and the Judge signed the Final Decree of
Divorce on October 24, 2012. A Notice of Appeal was filed on January 22, 2013.
The Appeal was dismissed and a Mandate was issued by this Court December 11 ,
2014. Appellee filed a Motion for Post-Judgment Receivership Pursuant to
Section 31.002~ Civil Practices and Remedies Code (See Clerk's Record at 33,
Appendix at 33) on January 30, 2015. Appellant filed an Objection and Special
Exception to Appellee's Motion for Post-Judgment Receivership Pursuant to
3
------------ -
Section 31.002, Civil Practices and Remedies Code (See Clerk's Record at 85,
Appendix at 85) and an Objection to Receiver's Motion to Approve Final Report
of Receiver, for Payment of Receiver's Fees and Expenses and to Discharge
Receiver (See Clerk's Record at 81, Appendix at 81) on February 9, 2015 prior to
the Hearing scheduled for that day. A Hearing was held on the Motion February 9,
2015. Appellant did not attend the Hearing. The District Court did not rule on
either of Appellant's Objections. (See Clerk's Record at 96, Appendix at 96) The
District Court entered an Order Approving Receiver's Final Report, Authorizing
Payment of Receiver's Fees and Expenses, and Discharging Receiver (See Clerk's
Record at 80, Appendix at 80) and an Order Appointing Receiver Pursuant to
Section 31.002, Civil Practices and Remedies Code (See Clerk's Record at 72,
Appendix at 72) on February 9, 2015. Appellant filed his Notice of Appeal with
the District Court February 26, 2015 appealing the District Court's Order
Appointing Receiver Pursuant to Section 31.002, Civil Practices and Remedies
Code. (See Clerk's Record at 90, Appendix at 90)
No post-judgment discovery has taken place. No testimony was provided at
the Hearing on February 9, 2015. (See Reporter's Record at 4, Appendix at 108)
The Judge listened only to oral argument of counsel. Counsel for Appellee offered
only two exhibits into the record in support of his argument, neither of which was
authenticated. The first exhibit "Movant's 1, which is the Living Trust in which
4
Mr. Blunck transferred all of this property." (see Reporter's Record at 15.
Appendix at 119) This document was dated December 24, 2012. No evidence was
presented that the Living Trust had not been revoked or modified since that date,
when in fact the document has been modified twice and both modifications are of
public record with the County Clerk in Camp County, Texas and whether the
Living Trust even owns any property at this time. Counsel argues that the turnover
order is needed so that the Receiver can "exercise Mr. Blunck's rights that he
would have under the living trust." (see Reporter's Record at 16, Appendix at 120)
No testimony was offered either in open court or via affidavit to authenticate
Movant's Exhibit No. 1 (See Appendix at 142) . The document does not comply
with Rule 902 of the Texas Rules of Civil Procedure and therefore is not self-
authenticating (the copy offered as Exhibit No.1 shows the pen and ink changes
initiated by the Settlor and the Trustee, the copy was never recorded). The second
exhibit, Movant's No.2, (See Appendix at 173) Counsel argues that ''these are
schedules that Mr. Blunck submitted [to the Bankruptcy Court]. And in those
schedules Mr. Blunck represented to the Bankruptcy Court that he had exempt
property, in addition to what we showed you with the trust and the contract rights
that can be executed pursuant to the turnover order." (see Reporter's Record at 19,
Appendix at 123) The document is dated July 23, 2013. No evidence was
presented that the property listed in the schedules still exists. No evidence or
5
argument was offered or presented in the record that any of the property listed on
the schedules was non-exempt. The schedules offered as Movant's No. 2 were not
authenticated by testimony or affidavit. The document does not comply with Rule
902 of the Texas Rules of Civil Procedure and therefore is not self-authenticating.
The Court's turnover order states in pet1inent part: "Leon Breeden .. . is
hereby appointed Receiver. .. with the power and authority to take possession of
and sell all leviable property of the Judgment Debtor, including, but not limited to
the following non-exempt property: (1) all documents or records, including
financial records, related to such property that is in the actual or constructive
possession or control of the Judgment Debtor; (2) all fmancial accounts (bank
accounts), certificates of deposit, money-market accounts, accounts held by any
third party; (3) all securities; (4) all real property, equipment, vehicles, boats, and
planes; (5) all safety deposit boxes or vaults; (6) all cash; (7) all negotiable
instruments, including promissory notes, drafts, and checks; (8) cause of action or
choses of action; (9) contract rights, whether present or future; and ( 10) accounts
receivable; and that all such property shall beheld [sic] in custodia legis by said
Receiver as of the date of this Order." (see Clerk's Record at 73, Appendix at 73)
There is no evidence in the record to support the finding that the Judgment Debtor
has any exempt property. The record is devoid of any evidence to suppm1 a
finding that the Judgment Debtor has actual or constructive possession of any of
6
the 10 items specified to be turned over to the Receiver. Item No. 2 specifically
relates to property held by third patties. The Order goes on to state: "Judgment
Debtor is ORDERED to turnover to the Receiver at his office address within five
ill [emphasis added] from Judgment Debtor's receipt of a copy of this Order: ( 1)
the documents contained on Exhibit "A" attached hereto, together will all
documents and financial records which may be requested by Receiver; (2) all
checks, cash, securities (stocks and bonds), promissory notes, documents of title,
and contracts owned by or in the name of Judgment Debtor." (see Clerks' Record
at 73, Appendix at 73). There is no time frame stated in the Order regarding the
above. It is impossible to comply with the Order when no time frame is stated.
Additionally, this provision of the Order reaches to exempt property and property
in the possession of third parties.
The Order states in pertinent part: "It is ORDERED the Receiver shall not
post a bond. It is further ORDERED that the Receiver sha11 be entitled to
Receiver's fees at a rate of $300.00 per hour, which the Court finds to be the
customary and usual fee for a turnover receiver." (see Clerk's Record at 76,
Appendix at 76). There is no evidence in the record to support the finding that the
fees awarded to the Receiver are customary or usual, or reasonable or necessary.
No testimony was presented or received, nor were any authenticated exhibits
offered or received into evidence to support the fmding.
7
------------------- - - --
SUMMARYOFTHEARGUMlliNT
The trial court must have some evidence to establish the necessary
conditions for the application of Texas Civil Practice & Remedies Code § 31.002
exist.
The Texas Turnover Statute, Texas Civil Practice & Remedies Code §
31.002, is a procedural device by which judgment creditors may reach assets of a
debtor that are otherwise difficult to attach or levy. See Af-Cap, Inc. v. Republic of
Congo, 462 F.3d 41 7, 426 (5th Cir. 2006) (citing Beaumont Bank, N.A. v. Buller,
806 S. W.2d 223, 224 (Tex. 1991)). The turnover statute itself does not require
notice and a hearing prior to issuance of a turnover order. See Ex parte Johnson,
654 S.W.2d 415, 418 (Tex. 1983). Nevertheless, the trial court "must have some
evidence before it that establishes that the necessary conditions for the application
of31.002 exist." Tanner v. McCarthy, 274 S. W.3d 311, 322 (Tex. App. -- Houston
[1st Dist.] 2008, no pet.). The creditor must show the trial court that: "(1) the
debtor owns the property, (2) the property cannot be readily attached, and (3) the
property is not exempt." Stephenson v. LeBoeuf, No. 14-2-130-cv, 2003 Tex. App.
LEXIS 7967, 2003 WL 22097781, at *2 (Tex. App. --Houston [14th Dist.] Sept. 11,
2003, [*3] no pet.). Creditor failed to carry its burden of proving that the
Judgment Debtor owns non-exempt property that could not be readily attached.
The District Court abused its di scretion in finding "that the Judgment Debtor owns
8
non-exempt property that cannot be readily attached or levied on by ordinary legal
process" (See Clerk's Record at 72, Appendix at 72) when the record contains no
evidence to support the finding.
For a judgment creditor to prove the required elements, the creditor must
"introduce more evidence than just a motion for turnover. The statute requires a
factual showing that the judgment debtor has non-exempt property that is not
readily subject to ordinary execution." I d. (citing Schultz v. Fifth Judicial Dist.
Court of Appeals at Dallas, 810 S.W2d 738, 740 (Tex. 1991)) . "A turnover order
must be specific in both identifying the non-exempt property that is susceptible to
turnover relief and in tailoring the turnover relief to that property." Moyer v.
Moyer, 183 S. W3d 48, 54 (Tex. App. --Austin 2005, no pet.); see also Roebuck v.
Horn, 74 S. W3d 160, 163 (Tex. App. -- Beaumont 2002, no pet.) ("A reference to
broad categories of assets does not constitute a reference to specific assets that is
required in a turnover order."); !d. at 54. ("[T]he trial comt's order must be
definite, clear, and concise in its description of the property to be turned over
eliminating the need for interpretations, inferences or conclusions."). Shanze
Enters. V Amigo MGA, LLC, 13-CV-4311-D, 2014 US. Dist. Lexis 156512 at *3
(N.D. Tex. 2014). Citing Finotti v. Old Harbor Co., No. 5-97-1365-cv, 1999 Tex.
App. LEXIS 8514, 1999 WL 1034607, at *1 (Tex. App. --Dallas Nov. 16, 1999, no
pet.)
9
The Court therefore may not properly enter a turnover order if there is not at
least some probative evidence of the necessary facts supporting the trial court's
discretion. See Williams Farms Produce Sales, Inc. v. R&G Produce Co. , No. 13-
12-00365-CV, 2014 Tex. App. LEXIS 3369, 2014 WL 1266118, at *4 {Tex. App. --
Corpus Christi 2014, no pet.).
[A] judgment creditor may not receive aid from the court under the provisions
of section 31.002 if the judgment debtor does not own property that is non-exempt
and that could not readily be attached or levied on by ordinary legal process. Tanner
v. McCarthy, 274 S.W3d 311, 322 (2008 Tex. App -Houston, [1st Dist.]) [A] trial
court must nonetheless determine that the request for aid pending before the court falls
within the scope of section 3 1.002 before it enters an order granting relief under that
section. In making this determination, the trial comi must have some evidence before
it establishes that the necessary conditions for the application of 3 1.002 exist. See
Schultz, 810 S. W2d at 740 (holding that turnover statute requires factual showing that
judgment debtor has non-exempt property that is not readily subject to ordinary
execution); Clayton v. Wisener, 169 S. W.3d 682, 683-84 (Tex. App.--Tyler 2005, no
pet.) (holding that trial court abused its discretion in entering a turnover order without
any evidence of facts required by section 31.002(a) and based only on motion and
argument of judgment creditor's counsel). !d.
The Texas Supreme Court has held that the complete absence of authenticating
10
- -------------
evidence is a defect in substance that can be raised for the first time on appeal. See
Mansions in the Forest, L.P. v. Montgomery County, 365 S.W3d 314 at 317{Tex.
2013). This court's precedent holds the same. Estate of Guerrero, 2015 Tex. App.
LEXIS 4124 at 27 (2015 Tex. App.- Houston [14th Dist.], no per.) citing Mayo v.
Suemaur Exploration & Prod. LLC, No. 14-07-00491-CV, 2008 Te.x:. App. LEXIS
7164, 2008 WL 4355259, at *5; see also Garza v. Wilson, No. 14-98-00928-CV, 2000
Tex. App. LEXIS 581, 2000 WL 64052, at *2 {Tex. App.- Houston [14th Dist.] Jan.
27, 2000, no pet).
The absence of an affidavit verifying a copy of the instrument attached as
summary judgment proof amounts to no proof. Id. at 25. No testimony was provided
to authenticate Movant's No. 1 or Movant's No. 2, nor was either authenticated via
affidavit. Movant's No. 1 and Movant' s No. 2 do not comply with Texas Rules of
Evidence, Rule 902, and therefore are not self-authenticating. Movant's No. 1 and
Movant's No. 2 are not evidence in support of the Movant's motion. Movant has
provided no evidence that establishes the necessary conditions for the application of
Texas Civil Practice & Remedies Code§ 31.002 exist.
Appellee has the burden to -- but does not -- identify any specific non-
exempt property or provide any evidence to establish that any specific non -exempt
property is susceptible to turnover relief. Appellee has failed to establish that: (1)
Appellant owns the property, (2) the property cannot be readily attached, and (3)
11
the property is not exempt. AppeJlee's motion only identifies "broad categories of
assets," rather than specific assets as required for a turnover order. Roebuck v.
Horn, 74 S. W 3d 160, 163 (2002, Tex. App. -Beaumont). It is not to be left to the
debtor to determine what property that person has and whether it is exempt.
Otherwise, there would be no need for any 'factual showing' by 'proof of the
necessary facts' as required by [the supreme court's] opinion. Moyer v. Moyer, 183
S. W3d 48, 54 (2005 Tex. App.-Austin). Others [cases] acknowledge that this
requirement aids in ensuring that the turnover order does not extend to exempt
property or property of third parties. Roebuck, 74 S. W3d at 163-64 (broad turnover
order improperly extended to assets owned in whole or part by third parties); Burns
v. Miller, et al, 05-94-01288 CV, 948 S.W.2d 317, 326-27 (Tex. App. - Dallas,
1997, writ denied). (non-specific order to turn over "cash, money orders, checks .
. . in any form and in anyone's possession which Burns beneficially owns or may
own in the future" improperly extended to exempt and currently nonexistent
property). Id.
The Turnover Order states in pertinent part: "Judgment Debtor is
ORDERED to turnover to the Receiver at his office address within five (5)
[emphasis added] from Judgment Debtor's receipt of a copy of this Order: (I) the
documents contained on Exhibit "A" attached hereto, together with all documents
and financial records which may be requested by Receiver; (2) all checks, cash,
12
securities (stocks and bonds), promissory notes, documents of title, and contracts
owned by or in the name of Judgment Debtor." (See Clerks' Record at 73 ,
Appendix at 73). There is no time frame stated in the Order regarding the above.
It is impossible to comply with the Order when no time frame is stated.
Additionally, this provision of the Order reaches to exempt property and property
in the possession of third parties.
The District Court abused its discretion when it entered a Turnover Order
that sets out only in generality the property (which may be exempt and or in the
possession of third parties) that is to be turned over and does not specifically state
the non-exempt property owned by Judgment Debtor to be turned over and does
not Order a specific time frame that the property is be turned over.
The District Court also abused its discretion when it Ordered Judgment
Debtor to pay the appointed Receiver fees of $300.00 per hour when there is no
evidence in the Record to support the finding that such fees are usual and
customary or reasonable and necessary.
ARGUMENT
I. THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT
ENTERED AN ORDER FOR TURNOVER RELIEF WITHOUT ANY
EVIDENCE IN THE RECORD SUPPORTING THE FINDING 1HAT
APPELLANT HAD ANY NON-EXEMPT PROPERTY THAT CANNOT
13
BE READILY AITACHED OR LEVIED ON BY ORDINARY LEGAL
PROCESS.
The trial court must have some evidence to establish the necessary
conditions for the application of Texas Civil Practice & Remedies Code§ 31.002
exist.
The Texas Turnover Statute, Texas Civil Practice & Remedies Code §
31.002, is a procedural device by which judgment creditors may reach assets of a
debtor that are otherwise difficult to attach or levy. See Af-Cap, Inc. v. Republic of
Congo, 462 F3d 417, 426 (5th Cir. 2006) (citing Beaumont Bank, NA. v. Buller,
806 S. W2d 223, 224 (Tex. 1991)). The turnover statute itself does not require
notice and a hearing prior to issuance of a turnover order. See Ex parte Johnson,
654 S.W2d 415, 418 (Tex. 1983). Nevertheless, the trial court "must have some
evidence before it that establishes that the necessary conditions for the application
of 31.002 exist." Tanner v. McCarthy, 274 S. W3d 311, 322 (Tex. App. --Houston
[1st Dist.] 2008, no pet.) . The creditor must show the trial court that: "(1) the
debtor owns the property, (2) the property cannot be readily attached, and (3) the
property is not exempt." Stephenson v. LeBoeuf, No. 14-2-130-cv, 2003 Tex. App.
LEXIS 7967, 2003 WL 22097781, at *2 (Tex. App. --Houston [14th Dist.] Sept. 11,
2003, no pet.).
For a judgment creditor to prove the required elements, the creditor must
14
"introduce more evidence than just a motion for turnover. The statute requires a
factual showing that the judgment debtor has non-exempt property that is not
readily subject to ordinary execution.'' I d. (citing Schultz v. Fifth Judicial Dist.
Court of Appeals at Dallas, 810 S.W2d 738, 740 (Tex. 1991)). "A turnover order
must be specific in both identifying the non-exempt property that is susceptible to
turnover relief and in tailoring the turnover relief to that property." Moyer v.
Moyer, 183 S. W3d 48, 54 (Tex. App. --Austin 2005, no pet.); see also Roebuck v.
Horn, 74 S. W3d 160, 163 (Tex. App. --Beaumont 2002, no pet.) ("A reference to
broad categories of assets does not constitute a reference to specific assets that is
required in a turnover order."); ld. at 54. ("[T]he trial court's order must be
definite, clear, and concise in its description of the property to be turned over
eliminating the need for interpretations, inferences or conclusions."). Shanze .
Enters. V Amigo MGA, LLC, 13-CV-4311-D, 2014 US. Dist. Lexis 156512 at *3
(ND. Tex. 2014). Citing Finotti v. Old Harbor Co. , No. 5-97-1365-cv, 1999 Tex.
App. LEXIS 8514, 1999 WL 1034607, at *1 (Tex. App. --Dallas Nov. 16, 1999, no
pet.)
The Court therefore may not properly enter a turnover order if there is not at
least some probative evidence of the necessary facts supporting the trial court's
discretion. See Williams Farms Produce Sales, Inc. v. R&G Produce Co. , No. 13-
12-00365-CV, 2014 Tex. App. LEXIS 3369, 2014 WL 1266118, at *4 (Tex. App. --
15
Corpus Christi 2014, no p et.) .
[A] judgment creditor may not receive aid from the court under the provisions
of section 31.002 if the judgment debtor does not own property that is non-exempt
and that could not readily be attached or levied on by ordinary legal process. Tanner
v. McCarthy, 274 S. W3d 311, 322 (2008 Tex. App - Houston, [1st Dist.]) [A] trial
court must nonetheless determine that the request for aid pending before the court falls
within the scope of section 31.002 before it enters an order granting relief under that
section. In making this determination, the trial court must have some evidence before
it that establishes that the necessary conditions for the application of 31.002 exist. See
Schultz, 810 S. W2d at 740 (holding that turnover statute requires factual showing that
judgment debtor has non-exempt property that is not readily subject to ordinary
execution); Clayton v. Wisener, 169 S. W3d 682, 683-84 (Tex. App.--Tyler 2005, no
pet.) (holding that trial court abused its discretion in entering a turnover order without
any evidence of facts required by section 31.002(a) and based only on motion and
argument of judgment creditor's counsel). !d.
The Texas Supreme Court has held that the complete absence of authenticating
evidence is a defect in substance that can be raised for the first time on appeal. See
Mansions in the Forest, L.P. v. Montgomery County, 365 S. W3d 314 at 317(Fex.
2013). This court's precedent holds the same. Estate of Guerrero, 2015 Tex. App.
LEXIS 4124 at 27 (2015 Tex. App.- Houston [14th Dist.], no pet. ) citing Mayo v.
16
Suemaur Exploration & Prod. LLC, No. 14-07-00491-CV, 2008 Tex. App. LEXIS
7164, 2008 WL 4355259, at *5; see also Garza v. Wilson, No. 14-98-00928-CV, 2000
Tex. App. LEXJS 581, 2000 WL 64052, at *2 (Tex. App. -Houston [14th Dist.] Jan.
27, 2000, no pet.).
The absence of an affidavit verifying a copy of the instrument attached as
summary judgment proof amounts to no proof. Id. at 25. No testimony was provided
to authenticate Movant's No. 1 or Movant's No. 2, nor was either authenticated via
affidavit. Movant's No. 1 and Movant's No. 2 do not comply with Texas Rules of
Evidence, Rule 902, and therefore are not self-authenticating. Movant's No. 1 and
Movant's No. 2 are not evidence in support of the Movant's motion. Motions and
arguments of counsel are not evidence. Clayton v. Wisener, 169 S. W 3d 682, 684 (Tex.
App. - Tyler 2005, no pet.) citing Elkins v. Stotts-Brown, 103 S. W 3d 664, 669 (Tex.
App.-Dallas 2003, no pet.) . Movant has provided no evidence that establishes the
necessary conditions for the application of Texas Civil Practice & Remedies Code
§ 31.002 exist.
Appellee has the burden to -- but does not -- identifY any specific non-
exempt property or provide any evidence to establ ish that any specific non-exempt
property is susceptible to turnover relief. Appellee has failed to establish that: ( 1)
Appellant owns the property, (2) the property cannot be readily attached, and (3)
the property is not exempt. Appellee's motion only identifies "broad categories of
17
assets," rather than specific assets as required for a turnover order. Roebuck v.
Horn, 74 S. W. 3d 160, 163 (2002, Tex. App. -Beaumont) . It is not to be left to the
debtor to determine what property that person has and whether it is exempt.
Otherwise, there would be no need for any 'factual showing' by 'proof of the
necessary facts' as required by [the supreme court's] opinion. Moyer v. Moyer, 183
S. W.3d 48, 54 (2005 Tex. App.- Austin). Others [cases] acknowledge that this
requirement aids in ensuring that the turnover order does not extend to exempt
property or property of third parties. Roebuck, 74 S. W3d at 163-64 (broad turnover
order improperly extended to assets owned in whole or part by third parties);
Burns, 948 S. W2d at 326-27 (non-specific order to turn over "cash, money orders,
checks .. . in any form and in anyone's possession which Burns beneficially owns
or may own in the future" improperly extended to exempt and currently
nonexistent property). !d.
The District Court abused its discretion in finding "that the Judgment Debtor
owns non-exempt property that cannot be readily attached or levied on by ordinary
legal process" (See Clerk's Record at 72, Appendix at 72) when the record
contains no evidence to support the finding.
II. THE DISTRJCT COURT ABUSED ITS DISCRETION BECAUSE THE
TURNOVER RELIEF ORDERED IS INSUFFICIENTLY SPECIFIC
REGARDING THE PROPERTY TO BE TURNED OVER AND
18
EXTENDS TO EXElvfPT PROPERTY AND PROPERTY OF TIDRD
PARTIES.
The Turnover Order is in the nature of a mandatory injunction and is appealable.
Schultz v. Fifth Judicial Dist. Ct. of App. at Dallas, 810 S. W2d, 738, 740 (Tex.
1991). To meet the requirements of Section 31.002, the com1's order must be
specific in both identifying the non-exempt propet1y that is susceptible to turnover
relief and in tailoring the turnover relief to the property. Moyer v. Moyer, 183
S. W3d 48, 54 (Tex. App. - Austin, 2005) . The trial court's order must be definite,
clear, and concise in its description of the property to be turned over eliminating
the need for interpretations, inferences or conclusions. Shanze Enters. V. Amigo
MGA, LLC, 13-CV-4311-D, 2014 U S Dist. Lexis 156512 (N.D. Tex. 2014). It is
elementary that an injunction must be definite and concise, leaving the person
enjoined in no doubt about his duties, and should not be such as would call on him
for interpretation, inferences or conclusions. Bergman v. Bergman, 828 S. W2d
555, 557 (Tex. App. - El Paso, 1992, no writ.) The Turnover Order is neither
specific in terms of what is to be turned over or when any particular item is to be
turned over. It is not to be left to the debtor to determine what propetiy that person
has and whether it is exempt. Otherwise, there would be no need for any 'factual
showing' by 'proof of the necessary facts' as required by [the supreme court's]
opinion. Moyer v. Moyer, 183 S. W3d 48, 54 (2005 Tex. App.-Austin). Texas
19
Property Code Section 42 specifies certain real and personal property that is
exempt. Additional real and personal property is exempt if it is in the possession of
third parties or is the assets of a spendthrift trust. Distributions from trusts are not
subject to turnover because they are proceeds or disbursements of exempt property.
Burns v. Miller, et al, 05-94-01288 CV, 948 S. W2d 317, 326 (Tex. App. -Dallas,
1997, writ denied). The Court's order fails to state specifically what non-exempt
property in the possession of the Judgment Debtor is to be turned over or when it is
to be turned over.
The District Court abused its discretion when it Ordered broad categories of
property which may or may not be in the possession of the Judgment Debtor to be
turned over to the Receiver without specifYing when such property was to be
turned over.
ill. THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT
AWARDED THE RECEIVER, WHO IS AN ATTORNEY, A FEE OF $300
PER HOUR FOR ALL RECEIVER SERVICES, HIS HOURLY RATE AS
AN ATTORNEY, WITHOUT CONSIDERATION OF A LESSER
REASONABLE FEE WHEN PERFORMING NON-ATTORNEY
FUNCTIONS AND WHEN THERE IS NO EVIDENCE IN THE RECORD
TO SUPPORT THAT THE FEES ARE USUAL AND CUSTOMARY OR
REASONABLE AND NECESSARY.
20
Receivers are entitled to reasonable compensation. Jones v. Strayhorn, 159
Tex. 421, 321 S. W2d 290, 292-293 (1959). The value of a receiver's services
determines the appropriate amount of compensation. Bergeron v. Sessions, 561
S. W2d 551, 554 {Tex. Civ. App.--Dallas 1977, writ refd n.r. e.) . To determine the
value of a receiver's services, courts consider the following factors:
(1) the nature, extent and value of the administered estate;
(2) the complexity and difficulty of the work;
(3) the time spent;
(4) the knowledge, experience, labor and skill required of, or devoted by the
receiver;
(5) the diligence and thoroughness displayed; and
(6) the results accomplished.
!d. at 554-55. While courts should "cautiously avoid excessive or improper" fees,
sufficient fees should be permitted "to induce competent persons to serve as
receiver[.]" !d. at 555.
The District Court abused its discretion when it found that the Receiver's
fees requested were usual and customary:
( 1) the nature, extent and value of the administered estate - the record is
devoid of any evidence to support a finding that the Receiver's fees are usual and
customary or reasonable and necessary regarding the nature, extent and value of
21
the administered estate
(2) the complexity and difficulty of the work - the record is devoid of any
evidence to support a finding that the Receiver's fees are usual and customary or
reasonable and necessary regarding·the complexity and difficulty of the work to be
done.
(3) the time spent - the record is devoid of any evidence to support a
finding that the Receiver's fees are usual and customary or reasonable and
necessary regarding when there is no evidence of the estimate of the time to be
spent.
(4) the knowledge, experience, labor and skill required of, or devoted by
the receiver - the record is devoid of any evidence to support a finding that the
Receiver's fees are usual and customary or reasonable and necessary regarding
whether the skills necessary to perform the anticipated services require the services
of a licensed attorney. "[A] receiver is not entitJed to compensation at a legal rate
for work which does not require legal skills." Bergeron, 561 S W2d at 554.
(5) the diligence and thoroughness displayed - the record is devoid of any
evidence to support a finding that the Receiver's fees are usual and customary or
reasonable and necessary regarding the diligence and thoroughness necessary to
perform any of the anticipated services. The record is devoid of any evidence to
support a finding that the Receiver's fees are usual and customary or reasonable
22
and necessary regarding any necessary services whatsoever.
(6) the results accomplished - the record is devoid of any evidence to
support a finding that the Receiver's fees are usual and customary or reasonable
and necessary regarding any results will be accomplished whatsoever.
Receiver has not provided any evidence in the record, only argument, that
his charged rate of $300 per hour is usual and customary or reasonable and
necessary compensation for the services anticipated to be provided. In fact such a
high rate for the services that are undefined is highly unreasonable, especially the
use of such an egregious rate for travel and meals as was awarded in the underlying
matter.
Additionally, the District Court abused its discretion when it Ordered the
Receiver's fee to be taxed as cost against the Judgment Debtor. (See Clerk's
Record at 76, Appendix at 76). We should be mindful that "[t]he apportionment of
costs should be controlled by equitable principles and the ultimate success or
failure of the party who requests the appointment of a receiver is not in itself
controlling, but is a prime factor in determining who shall ultimately pay the costs
ofthe receivership." Hodges v. Peden, 634 S. W2d 8, 12 (Tex. App.--Houston [14th
Dist.] 1982, no writ (citing Jones, 321 S. W2d at 293-94).
PRAYER
Appellant Tedde R. Blunck respectfully prays that the Judgment of the
23
District Court granting the Turnover Order be reversed and remanded to the
District Court for a New Trial in all respects.
CERTIFICATE OF THE NUMBER OF WORDS CONTAINED IN BRIEF
I hereby certify in accordance with Texas Rules of Appellate Procedure 9.4(i)(3)
that the Appellant's brief contains 6,409 words.
Tedde R. Blunck
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above Appellant's Brief was served on Karl
Hays, 2101 South Highway 35, Suite 210 Austin, Texas 78741, attorney for
Appellee Cathy A. Blunck in accordance with the Texas Rules of Appellant Civil
Procedure on June 8, 2015 .
Tedde R. Blunck
24
CAUSE NUMBER 03-13-0007 4-CV
IN THE COURT OF APPEALS
FOR THE THIRD COURT OF APPEALS DISTRICT
AUSTIN, TEXAS
TEDDER. BLUNCK,
Appellant,
v.
CATHY A. BLUNCK,
Appellee.
ON APPEAL FROM THE 22N° DISTRICT COURT, HAYS COUNTY,
TEXAS
TRIAL COURT CAUSE N0. 11-1217
APPENDIX TO APPELLANT'S BRIEF
RESPECTFULLY SUBMITTED:
TEDDER. BLUNCK, PRO SE
502 QUITMAN STREET
POBOX 1152
PITTSBURG, TEXAS 75686
TELEPHONE: (903) 855-8460
TELECOPIER: (903) 855-8465
EMAIL: tblunck@yahoo.com
25
- - - - - - - - -- -- - - - - - -
TABLE OF CONTENTS
District Clerk's Record_ _ __ _ __ _ _ _ _ __ _ _ _ __ 1
Reporter's Record-- - - - - - - - - - - - - - - - -- - 100
Movant's Exhibit No. 1 - - - - - - - -- - - - - - - ---- 141
Movant's Exhibit No. 2 172
---------------------------
0
CLERK'S RECORD
VOLUME one OF ONE
Trial Court Cause No. 11-1217
IN THE 22nd DISTRICT COURT OF
HAYS COUNTY, TEXAS, AT SAN MARCOS, TEXAS
THE HONORABLE BILL HENRY JUDGE PRESIDING
TEDDE R. BLUNCK Plaintiff(s)
VS.
CATHY A. BLUNCK Defendant(s)
Appealed to the Court of Appeals for the Third District of Texas, at Austin , Texas
ATTORNEY FOR APPELLANT(s)
Name: Tedde R.Blunck, Pro Se SB# 00793355
Address: P. O. Box 1152 Telephone #: (903) 855-8460
Pittsburg, Texas 75686 Fax No.: (903) 855-8465
E-Mail Address: ___tblunck@yahoo.com____________________________________
Attorney for Tedde R. Blunck, Pro Se Appellant(s)
Delivered by electronically filing with the Court of Appeals for the Third District of Texas at Austin , Texas on
the 18th day of March , 2015.
BEVERLY CRUMLEY
District Clerk, Hays County, Texas
BY: /s/ Kathy Orlowski Deputy
Appellate Court Cause No. 03-15-00128-CV
Page 1 of 207 000001
----------------------------------------------------------------
INDEX
----------------------------------------------------------------
COVER PAGE ..................................................... 1
INDEX ........................................................... 2
MOTION TO RELEASE AND TRANSFER PROPERTY IN POSSESSION OF
RECEIVER AND TO AUTHORIZE RECEIVER TO SUBMIT FINAL
REPORT
FILED DECEMBER 12, 2014 ................................
OBJECTION TO RESPONDENT'S MOTION TO SET HEARING ON MOTION TO
RELEASE AND TRANSFER PROPERTY IN THE POSSESSION OF
RECEIVER AND TO AUTHORIZE RECEIVER TO SUBMIT FINAL
REPORT
FILED DECEMBER 15, 2014 ................................
ORDER GRANTING MOTION TO RELEASE AND TRANSFER PROPERTY IN
POSSESSION OF RECEIVER AND TO AUTHORIZE RECEIVER TO
SUBMIT FINAL REPORT
FILED DECEMBER 18, 2014 ................................
MOTION TO APPROVE FINAL REPORT OF RECEIVER, FOR PAYMENT OF
RECEIVER'S FEES AND EXPENSES, AND TO DISCHARGE RECEIVER
FILED JANUARY 14, 2015 .................................
MOTION FOR POST-JUDGMENT RECEIVERSHIP PURSUANT TO SECTION
31.002, CIVIL PRACTICE AND REMEDIES CODE
FILED JANUARY 30, 2015 .................................
ORDER APPOINTING RECEIVER PURSUANT TO SECTION 31.002, CIVIL
PRACTICE AND REMEDIES CODE
SIGNED & FILED FEBRUARY 9, 2015 .......................
OATH OF RECEIVER
FILED FEBRUARY 9, 2015 ......................................
ORDER APPROVING RECEIVER'S FINAL REPORT, AUTHORIZING PAYMENT
OF RECEIVER'S FINAL FEES AND EXPENSES, AND DISCHARGING
RECEIVER
SIGNED & FILED FEBRUARY 9, 2015 ........................
Page 2 of 207 000002
OBJECTION TO RECEIVER'S MOTION TO APPROVE FINAL REPORT OF
RECEIVER, FOR PAYMENT OF RECEIVER'S FEES AND EXPENSES,
AND TO DISCHARGE RECEIVER
FILED FEBRUARY 9, 2015 .................................
OBJECTION AND SPECIAL EXCEPTION TO RESPONDENT'S MOTION FOR
POST-JUDGMENT RECEIVERSHIP PURSUANT TO SECTION 31.002,
CIVIL PRACTICE AND REMEDIES CODE
FILED FEBRUARY 9, 2015 .................................
RECEIPT OF EXHIBITS
FILED FEBRUARY 9, 2015 ......................................
DESIGNATION OF CLERK'S RECORD
FILED FEBRUARY 13, 2015 .....................................
NOTICE OF APPEAL
FILED FEBRUARY 26, 2015 .....................................
COURT'S DOCKET SHEET .............................................
BILL OF COSTS ....................................................
CLERK'S CERTIFICATE ..............................................
Page 3 of 207 000003
FILED
12/12/2014 10:46:07 AM
Beverly Crumley
District Clerk
Hays County, Texas
CAUSE NUMBER 11-1217
IN THE MATTER OF § IN THE DISTRICT COURT
THE MARRIAGE OF §
§
TEDDER. BLUNCK § 22Nn JUDICIAL DISTRICT
AND §
CATHY A. BLUNCK § HAYS COUNTY, TEXAS
MOTION TO RELEASE AND TRANSFER PROPERTY
IN POSSESSION OF RECEIVER AND TO AUTHORIZE RECEIVER
TO SUBMIT FINAL REPORT
TO Tl IE HONORABI ,E JlJDGE OF SAID COURT:
This motion is brought by Cathy A. Blunck, who is the Respondent in these
proceedings. In specific support of her request for an order authorizing the Receiver to
release and transfer property in his possession and to submit a linal report in this case, Cathy
A. Blunck would present the following:
Applicable Facts
The Final Decree (~/Divorce was signed in this case on 24 October 20 I 2. By notice
of appeal filed on 22 January 2013, Teddc R. Blunck, the Petitioner in this proceeding,
appealed the Court's order to the Third Court of Appeals.
On 22 January 2013, within the time period prescribed by Section 109.001 of the
Texas Family Code, Cathy A. Blunck sought and obtained temporary orders pending appeal.
Among the relief granted by the Court at that time was the appointment of a receiver to take
possession of certain property. The orders rendered by the Court specifically authorized the
In the Matter of the Marriage of Blunck
Motion to Release and Transfer Property
Page I
Page 4 of 207 000004
Receiver to take possession of the following property:
a. the following property awarded to Cathy A.
Blunck in the Final Decree of Divorce signed 1n
this cause on October 24, 2012:
100% of Tedde R. Blunck's retirement
benefits in Parsons Brinckerhoff Group,
Inc. Retirement Savings Plan, c/o T. Rowe
Price, arising oul of Tedde R. Blunck's
employment with Parsons Brinckerhoff Group
Inc. as of 16 August 2012, together with
any interest, dj vidends, gains, or J osses
on that amount arising since that date and
more particularly dc:fined in a Qualified
Domestic Relations Order signed by the
Cou rl on the day th i_ s E'i na 7 Decree of
Divorce is signed. In determining the
division oi the parties' estate, lhe Court
has considered the tax effect relating to
the retirement benefits Cathy Blunck is to
rece1ve, as authorized under Lhe Texas
Family Code.
b. all documents or records, including
financial records, related to the above-
described properly that is in the actual or
constructive posses:;_i on or controJ of Tedde
R. Blunck.
c. all financial accounts (bank accounts),
certificates of deposit, money-market
accounts, accounts containing the proceeds
of the above-described property, including,
but not limited to, accounts in the
following institutions: 1st National Dank
of Gilmer, Pilgrim's Bank of Pittsburg, and
Bank One, Pittsburg.
The Court's temporary orders provided that the Receiver was to hold the above-
referenced property "in custodia legis during the pendency of any appeal from the Final
In the Matter of the Marriage of Blunck
Motion to Release and Transfer Property
Page 2
Page 5 of 207 000005
Decree of Divorce signed on 24 October 2012."
In compliance with the Court's orders, Leon Breeden, the duly appointed receiver,
levied on certain bank accounts belonging to Teddc R. Blunck and placed those accounts
under the control of the receivership. As reflected in the Initial Report of Receiver and
Application for Payment <~{Receiver's Fees and Expenses filed with the Court on 15
February 2013, the receiver is currently in possession of the following:
First National Rank, Tedde R. Blunck IRA xx111,
$237,093.13
Pl1grJm Bank, TeddeR. Blunck IRA xxxx865, $]81,467.49
Capital One Bank, Tedde R. Blunck fRA xxxxxxx474,
$229,772.65
On 20 February 2013, the Court rendered additional temporary orders expanding the
role of the Receiver and authorizing the Receiver to take control over additional property.
Specifically, the order provided that the Receiver was to take possession of the following:
a. All property real or personal which was under
the direct or constructive control of Tedde R.
Blunck as of 8 August 2012, the date the trial
began in thi~ case, including, but not limited
to rea I estate, bank account~, brokerage
accounts, l rus L accounts, ret l remen t accounts,
and retirement proc~eds.
Although the Receiver has not taken physical possession of any property, save and
except the IRA accounts identified above, technically any property falling within the
parameters of the Court's order of20 February 2013, would be in custodia legis and subject
In the Matter of the Marriage of Blunck
Motion to Release and Transfer Property
Page 3
Page 6 of 207 000006
to the Receiver's control and authority.
In response to the Receiver's report, the parties entered into an agreed order
authorizing the Receiver to retain the IRA accounts under his control at the banks where such
accounts were currently located.
On 26 June 2013, Tcdde R. Blunck filed for bankruptcy protection under Chapter 13
of the Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of
Texas Marshall Division. At that time, an automatic stay went into ctTect precluding any
further action which might materially effect property belonging to the bankruptcy estate. By
order dated 4 November 2013, a copy of which is attached hereto as Exhibit "A", and
incorporated herein by reference as if fully set forth at length, the Court granted Cathy A.
Blunck's request to modify the automatic stay to permit her to take all steps necessary, short
of contempt, to obtain possession of the property originally awarded to her under the parties'
final decree of divorce. These orders were rati lied in the Order Confirming Chapter 13 Plan
and Related Orders dated 27 December 2013, a copy of which is attached hereto as Exhibit
"B" and incorporated herein by reference as if fully set forth at length.
On 2 July 2014, the Court of Appeals lor the Third District ofTcxas issued an order
dismissing Teddc R. Blunck's appeal. On I I December 2014, the Court of Appeals for the
Third District of Texas issued its Mandate, confirming its dismissal of Tcddc R. Blunck's
appeal. A true and correct copy of the Mandate is attached as Exhibit "C" and is
incorporated herein by reference as if fully set forth at length.
In the Matter of the Marriage of Blunck
Motion to Release and Transfer Property
Page 4
Page 7 of 207 000007
Requested Relief
In light ofthe dismissal ofTedde R. Blunck's appeal, Cathy A. Blunck is requesting
that she he allowed to take possession of the property that was awarded to her in the Court's
original order and which is currently under the control of the Receiver.
Accordingly, Cathy A. Blunck requests that this Court authorize the Receiver to
release possession of all of the property under his control. Cathy A. Blunck additionally
requests that she he appointed as attorney-in-fact for Tcdde R. Blunck lor the purposes of
executing any documents necessary to transfer title to and/or control of any of the property
awarded to her under the final decree ol' divorce. In the alternative, Cathy A. Blunck would
request that the Court authorize the Receiver to operate as Mr. Blunck's attorney-in-fact to
efTcct the transfer of property into Ms. Blunck's name. Such orders should specifically
include a grant of authority to execute any and all documents necessary to transfer title to
Cathy A. Blunck of the IRA accounts in Ted de R. Blunck's name at First National Bank,
Pilgrim Bank, and Capital One Bank that arc under the control of the Receiver.
Cathy A. Blunck further requests that the Receiver be authorized to thereafter submit
a final report to the Court and that, upon acceptance of that report, the Receiver be
discharged and the receivership dissolved.
WHEREFORE ABOVE PREMISES CONSIDERED, Cathy A. I3lunck respectfully
requests that, upon consideration of the matters set forth herein, the Court grant her requested
relief and such other and further relief to which she may be justly entitled.
In the Matter of the Marriage of Blunck
Motion to Release and Transfer Property
Page 5
Page 8 of 207 000008
Respectfully submitted,
LAW OFFICE OF KARL E. HAYS, PLLC
2101 South IH35, Suite 210
Austin, Texas 78741
5 12-4 7 6-1 91 1
512-476-1904 facsimile
By:---7'.~L__v_y'?_/z_·--"---;--=d-=--------_
Karl E. Hays
State Bar Number 09307050
John Barrett
State Bar Number 01816300
BARRETT AND COBLE
7200 North MoPac Expressway, Suite 440
Austin, Texas 78731
512-482-8193
512-482-0525 facsimile
A1TORNI ~YS FOR CATllY A. BLUNCK
CERTIFICATE OF SERVICE
The undersigned attorney certifies pursuant to Rule 21 of the Texas Rules of Civil
Procedure, that a true and correct copy or the foregoing Motion to Release and Tramfer
Property in Possession qf'Receiver and to Authorize Receiver to Suhmit Final Report has
been served upon the below-named individual, in the manner noted below, as prescribed by
Rule 21a of the Texas Rules ofCivil Procedure, on this the _ll~day of December 2014 .
.L~!~Ld:: -__
Karl E. Hays
Via Facsimile Transmission
TeddeR. Blunck
502 Quitman St.
P.O. Box 1152
Pittsburg, Texas 75686
903-855-8456 facsimile
In the Matter of the Marriage of Blunck
Motion to Release and Transfer Property
Page 6
Page 9 of 207 000009
Case 13-20129 Doc 60 Filed 11/04/13 Entered 11/04/13 14:34:4tr.t ~Main
Document Page 1 of 3 .C..VlJ
11/04/2013
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
INRE: §
§
TEDDE ROBIN BLUNCK § CASE NO. 13-20129
SSN: xxx-xx-3054 § CHAPTER 13
1347 CR 4510 §
Pittsburg, TX 75686 §
§
DEBTOR §
ORDER MODIFYING TilE AUTOMATIC STAY
On October 23, 2013, the Court heard the Motion for Relief from Automatic Stay (the
"Motion") filed by Cathy A. nlunck (the "Movant") on September 5, 2013, in the above
referenced case. The Court finds that proper notice of the Motion and the hearing was given
pursuant to the Federal and Local Rules of Bankruptcy Procedure. Charles Lauffer appeared at
the hearing on behalf of the Movant, Cathy A. Blunck. Gordon Mosley appeared at the hearing
on behalf of the Debtor, TeddeR. Blunck. Upon due consideration of the evidence, including
factual stipulations on the record, and the arguments of counsel, the Court finds the Divorce
Decree issued on October 24,2012 and thereafter entered on November 1, 2012 (the "Divorce
Decree"), in that certain litigation styled In The Matter of the Marriage ofTedde R. Blunck and
Cathy A. Blunck, pending as Cause No. 11-1217 before the 22"d Judicial District Court in and for
Hays County, Texas (the "Hays County Action") is a final and enforceable judgment, having not
been properly superseded according to law. Accordingly, the Court finds that just cause exists
for the entry of the following order.
IT IS THEREFORE ORDERED that the Motion for Relief from Automatic Stay filed
'
by Cathy A. Blunck on September 5, 2013 is GRANTED as set forth in this Order.
Page 10 of 207 000010
Case 13-20129 Doc 60 Filed 11/04/13 Entered 11/04/13 14:34:46 Desc Main
Document Page 2 of 3
IT IS FURTHER ORDERED that the automatic stay is hereby MODIFIED so as to
allow all parties to take all appropriate actions to continue and to complete the prosecution of the
appellate action regarding the Divorce Decree, currently pending as Cause No. 03-13-00074-CV,
before the Third Court of Appeals of Texas in Austin, Texas, and styled TeddeR. Blunck,
Appellant v. Cathy A. Blunck, Appellee, together with any further appellate action as may be
necessary or advisable.
IT IS FURTHER ORDERED that, in light of the fact that the Debtor-Defendant, Tedde
R. Blunck, has failed to supersede the enforcement of the Divorce Decree issued by the 22"d
Judicial District Court in and for Hays County, Texas pending appeal, the automatic stay is
hereby further MODIFIED to allow the continued enforcement of the Divorce Decree according
to law, and Cathy Dlunck is hereby authorized to seek and to exercise any and all appropriate
remedies available under state law to enforce the terms of the Divorce Decree, including any
orders regarding the property awarded to her therein including but not limited to the following:
1. 100% of Tedde R. Blunck's retirement benefits in Parsons Brinckerhoff Group
Inc. Retirement savings plan, c/o T. Rowe Price, arising out of Tedde R. Blunck's
employment with Parsons Brinckerhoff Group Inc. as of 16 August 2002, together
with any interest, dividends, gains, or losses on that amount arising since that date
and more particularly defined in a Qualified Domestic Relations order signed by the
22"d Judicial District Court in and for Hays County, Texas. This includes the
amounts now held in the following accounts:
a. First National Bank of Pittsburg, Texas, account no. xxxx111, IRA
account in the name ofTedde Blunck;
b. Pilgrim Bank of Pittsburg, Texas, account no. xxxx865, IRA account in
the name ofTedde R. Blunck, Leon Breeden, Receiver;
c. Capital One Bank, Pittsburg, Texas, account no. xxxxxxx474, IRA
account in the name ofTedde R. Blunck;
d. 401kAccount held at T-Rowe Price in the amount of$40,120.25;
2
Page 11 of 207 000011
Case 13-20129 Doc 60 Filed 11/04/13 Entered 11/04/13 14:34:46 Desc Main
Document Page 3 of 3
The Court acknowledges the foregoing property (a)-(d), awarded to the
Movant in the Divorce Decree, is subject to the receivership imposed by the
previous orders of the 22nd Judicial District Court of Hays County, Texas, for
the purpose of protecting the existence and integrity of property awarded to
the Movant in the Divorce Decree and the automatic stay is further
MODIFIED to allow the court-appointed receiver to exercise all rights and to
seek all remedies necessary to fulfill the obligations imposed upon him by the
22nd Judicial District Court of Hays County, Texas, with respect to the
property affected by this order;
2. Parsons Brinckerhoff, Inc. Exec. De f. Corp. Plan I, $78, I 04.00;
3. Parson Brinckerhoff, Inc. Exc. Def. Comp Plan II, $120,816.00;
4. Wells Fargo Savings Account ending in xxx2983, $40,291.00
5. Undivided Y:z interest in all Timber and Minerals, Camp County, Texas 406.93
acres located at 1347 CR 4510;
6. The Duck Boat, Motor, and Trailer duck motor vehicle, vehicle identification
number 1MDARER19RD678273, together with all prepaid insurance, keys, and
title documents;
7. One (1) 2007 Ford Expedition motor vehicle, vehicle identification number
I FMFK 19567LA95287;
8. Four hunting trophies (Impala, Gemsbock, Blesbok, and Bushbuck) and one zebra
skin.
IT IS FURTHER ORDERED that the remedies for which the stay is lifted do not
include the enforcement by contempt without further order ofthis court.
All other relief sought by the Motion is DENIED without prejudice.
Signed on ll/04/2013
THE HONORABLE BILL PARKER
UNITED STATES BANKRUPTCY JUDGE
3
Page 12 of 207 000012
Case 13-20129 Doc 80 Filed 12/27/13 Entered 12/27/13 11:18:2EO!) Main
UNITEBqrp~ sA~t<~u~-ffif couRT 12/27/2013
EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
IN RE: ) CASE NO: 13-20129
Tedde Robin Blunck )
Chapter 13
)
SSN(s): xxx-xx-3054 )
1347 CR4510 )
Pittsburg, TX 75686 )
)
)
)
Debtor(s)
ORDER CONFIRMING CHAPTER 13 PLAN AND RELATED ORDERS
After notice and hearing, wherein the Court considered the matters on file herein, including the Trustee's Report of Creditors
Meeting held pursuant to Section 341 of the Bankruptcy Code, and all objections to confirmation of the Plan, The Court finds:
1. Written notice of the Meeting of Creditors held pursuant to 11 U.S.C. § 341 and of this hearing on the confirmation of the Plan
was given as required by Rule 2002; and
2. All scheduled creditors have been served with a copy of the Debtor's Plan or summary thereof in accordance with Rule 3015;
and
3. The Plan as presented for confirmation (hereinafter referred to as "the Plan") complies with the provisions of Chapter 13 of
Title 11 of the United States Code and the other applicable provisions of said Title; and
4. With respect to each allowed secured claim provided for by the Plan, the holder of such claim either accepted or was deemed
to have accepted the Plan, or, in the alternative
a. The Plan provides that the holder of such claim retain the lien securing such claim; and
b. The value, as of the effective date of the Plan, of property to be distributed under the Plan on account of such claim is not
less than the allowed amount of such claims; or
c. The Debtor has surrendered or abandoned the collateral securing such claim; or
d. The treatment of the claim complies with 11 U.S.C. § 1322(b)
IT IS THEREFORE ORDERED THAT:
1. The Debtor's Plan dated 11/13/2013 as filed or as amended is CONFIRMED subject to the allowance of claims
herein and the Trustee's Recommendation Concerning Claims which shall be filed within 30 days of the latter of entry of this
Order or the deadline for all creditors (including a government unit) to file a claim. With respect to all claims allowed or not yet
allowed at the time of execution of this Order, said claims are subject to the Trustee's Recommendation Concerning Claims as
follows:
I. (a). The Trustee, the Debtor, and the Debtor's attorney shall examine proofs of claim or summaries thereof and shall
object to the allowance of improper claims as provided by Rule 3007.
(b). The Trustee shall file and serve all parties in interest with the Trustee's Recommendation Concerning Claims within
thirty (30) days of the latter of entry of this Order or the claim filing deadline for all creditors (including a government
unit). Such Trustee's Recommendation Concerning Claims shall include the Trustee's objections to claims, if any,
recommendations as to the extent and validity of each creditor's security interest, if any, and recommendations as to
the value of any collateral not previously valued by the Court. The Trustee's Recommendation Concerning Claims
shall be deemed to be an objection to claims, a motion to value any such collateral, and an action to determine the
validity of each creditor's security interest or an action to avoid any such security interest as set forth therein.
(c). Unless an objection or response is timely filed as to the treatment of any claim, the claim will be allowed only in the
manner and amount listed in the Trustee's Recommendation Concerning Claims, and such treatment will be final
and binding on all parties without further order of the Court.
Page 13 of 207 000013
TXEB Local Fonn 3015-b [Revised January 18, 2006] Page 1
Case 13-20129 Doc80 Filed 12/27/13 Entered 12/27/13 11:18:22 Desc Main
Document Page 2 of 6
Case No: 13-20129
Debtor(s): Tedde Robin Blunck
II. (a). The Chapter 13 Trustee shall review all claims and the feasibility of the Plan prior to filing the Trustee's
Recommendation Concerning Claims. If at that time the Plan is no longer feasible, the Trustee shall notify the
Debtor and his attorney, in writing, of the infeasibility of the Plan. If forty-five (45) days after the service of the Trustee's
Recommendation Concerning Claims the Plan remains infeasible, the Trustee shall file a Motion to Modify the Plan
and/or a Motion to Dismiss the case.
(b). Further, if at any time during the term of the Chapter 13 case, a claim is allowed which makes the Plan infeasible,
the Chapter 13 Trustee shall notify the Debtor and his attorney, in writing, of the infeasibility of the Plan. If the Plan
remains infeasible for forty-five (45) days after such notice, the Trustee shall file a Motion to Modify the Plan and/or an
alternative Motion to Dismiss the case.
Ill. At the time of the issuance of an Order Confirming a Plan in this case, the time for filing claims in this case may not have
expired. Consequently, the Court specifically reserves the right in the future to:
(a). Alter or sustain an objection to the secured status of a claim filed as secured either before or after the entry of this
Order Confirming Plan, and value the collateral securing any such claim to the extent not previously valued herein or
otherwise by the Court;
(b). Enter a Final Order after notice and hearing on any responses or objections to the Trustee's Recommendation
Concerning Claims, and on any additional objection(s) to claims timely filed by a party in interest;
(c). At any time during the pendency of this case, entertain a motion to alter or sustain an objection to the secured status
of a claim filed as secured after the bar date for filing claims has expired, or to value the collateral securing any such
claim to the extent not previously valued by the Court.
(d). Reduce, if necessary to ensure compliance with LBR 2016(h), the amount of attorney fees to the debtor's attorney
due to the absence of a certification from debtors attorney regarding legal services provided pertaining to automatic
stay litigation occurring in the case.
N.AII creditors having allowed secured claims (whether filed before or after an Order Confirming Plan is entered) shall be
treated in accordance with section 1325(a) (5), except as otherwise specifically set forth herein. The collateral securing
creditor's claims provided for under the Debtor's Plan is hereby valued by the Court at the values set forth below.
(a). When the value of the collateral securing a timely filed proof of claim of any taxing authority differs from the value
shown on the Debtor's Plan, the Trustee will use the value shown on the creditor's proof of claim. All parties will be
noticed of this valuation through the Trustee's Recommendation Concerning Claims and disputed valuations may
be resolved by the Court, by agreement or objection.
(c). In those instances, if any, where an objection was filed to the treatment of a creditors claim, including the valuation of
collateral as provided in the Debtor's Plan, the Court through this order hereby determines the treatment shall be as
set forth in exhibit 'A' attached, if any.
(d). In the event a creditor timely files a proof of claim which evidences a perfected security interest in collateral which
was not specified by the Plan and not previously valued by the Court, such collateral will be valued by the Court at the
value set forth in the Trustee's Recommendation Concerning Claims to be filed herein, unless a response to such
Trustee's Recommendation Concerning Claims is timely filed. Such Trustee's Recommendation Concerning
Claims is to be filed and served within thirty (30) days of the latter of entry of this Order or the deadline for filing proofs
of claims herein (including a government unit). Responses to such Trustee's Recommendation Concerning Claims
must be f1led within the time and in the manner provided in such Trustee's Recommendation Concerning Claims.
Page 14 of 207 000014
TXEB Local Form 3015-b [Revised January 18, 2006] Page 2
Case 13-20129 Doc 80 Filed 12/27/13 Entered 12/27/13 11:18:22 Desc Main
Case No: 13-20129
Document Page 3 of 6
Debtor(s): Tedde Robin Blunck
(e)o The valuation of collateral by the Court as set forth above shall not relieve a secured creditor from the duty to file a
proof of claim in order to be paid under the Plano Further, such valuation shall not preclude any party from objecting
to the amount claimed by any such creditor, or from bringing an action to determine the extent of validity of such
creditor's security interest or to avoid any such security interest.
20 The Debtor(s) shall pay the sum of $1,350.00 per month for 60 payments together with any income
Tax refunds that the debtor receives during the life of the plan for a total of _ _c:$_::8_:_!1,~0;:_00::.:·;:_00=--- to:
•If variable payments are indicated, see Exhibit ·a·- Variable Plan Payments for the monthly amountso
John Talton
P.O. Box 734
Tyler, Texas 75710-0734
Beginning 7/25/2013 and continuing until all of the allowed claims provided for under the Plan have been
paid in accordance with the terms of the Plan, of this Order, or as set forth in the Trustee's Recommendation Concerning
Claimso
30 The Trustee shall make disbursements pursuant to the provisions of the Plan, this Order, or as set forth in the Trustee's
Recommendation Concerning Claims, Section 1326 of the Bankruptcy Code and shall pay only such claims which have been
allowed by the Court The Trustee shall make such disbursements monthly, unless otherwise provided for by the Plan, but shall
not be required to pay any dividend in an amount less than $15000 and dividends not distributed because of this provision shall
accumulate and be paid when such accumulation aggregates $15000 or moreo
40 The Debtor(s) shall not incur additional debt during the term of this Plan except upon written approval of the Court or the
Standing Chapter 13 Trusteeo Failure to obtain such approval may cause the claim for such debt to be unallowable and non-
dischargeableo
0 Check this box if Additional Provisions are attached
Signed on 12127/2013
THE HONORABLE BILL PARKER
UNITED STATES BANKRUPTCY JUDGE
APPROVED AS TO FORM AND SUBSTANCE
/s/ GORDON MOSLEY lsi John Talton
GORDON MOSLEY, Attorney for Debtor John Talton, Chapter 13 Trustee
12/27/2013 12/27/2013
Date Date
Page 15 of 207 000015
TXEB local Form 3015-b [Revised January 18, 2006] Page 3
Case 13-20129 Doc 80 Filed 12/27/13 Entered 12/27/13 11:18:22 Desc Main
Case No: 13-20129
Document Page 4 of 6
Debtor(s): Tedde Robin Blunck
Additional Provisions of the Plan
Replacement Value Not Set at Confirmation
Notwithstanding any provision herein to the contrary, the value(s) of the collateral securing the claims, if any, as set forth in
paragraph 6(A)(ii)(b) of this Chapter 13 Plan are not determined upon the entry of this Confirmation Order, unless an
agreement regarding such value is attached to this Order. In the absence of any such attachement, such value shall be
established pursuant to each creditor's secured proof of claim pertaining to any such collateral, subject to subsequent
modification be the entry of an order resolving any objection to such secured proof of claim or resolving a party's seperate
motion to value the particular collateral pursuant to 11 USC 506 and Bankruptcy Rule 3012
Trustee's Recommendation Concerning Claims
Notwithstanding any provision herein to the contrary, the deadline for the Trustee to file the Trustee's Recommendation
Concerning Claims, as well as the deadline for filing objections to the Trustee's Recommendation Concerning claims and
objections to claims shall be governed by Local Bankruptcy Rule 3015(g).
Tax Returns and Refunds
All future refunds which the Debtor(s) receive during the term of the plan, starting with the tax refund, if any, to be received in
the tax year 2012, shall be turned over to the Chapter 13 Trustee within ten (10) days of receipt of such, to the extent said
refunds exceed $32,111.04 and shall be added to the plan base. Whether or not a tax refund is due, Debtor(s) shall provide
a copy of their tax return to the Trustee within ten (1 0) days of filing such during the term of the Plan.
Unsecured Claims to be paid with interest
Notwithstanding any other provision herein, all timely filed and allowed unsecured claims shall be paid in full with interest
at the rate of 6.00 % APR.
Among the unsecured claims that the plan shall provide for is an unsecured claim filed on behalf of ''The Hartford" (claim
no. 11 ), currently filed in the amount of $15,797.50.
Debtor reserves his right, consistent with the Bankruptcy Code and Bankruptcy Rules, to file an objection to any proof of
claim that may be filed in this case.
/s/ Herbert J. Gilles
Herbert J. Gilles
counsel for "The Hartford"
Claim(s) of Cathy Blunck
The plan shall provide for the claims of Cathy Blunck as described on the attached sheet.
Page 16 of 207 000016
TXEB Local Form 3015-b [Revised January 18, 2006] Page 4
Case 13-20129 Doc80 Filed 12/27/13 Entered 12/27/13 11:18:22 Desc Main
Document Page 5 of 6
CLAIM(S) OF CATHY BLUNCK
The Debtor's Plan shall provide for the direct payment of the claim(s) of Cathy
Blunck ("Ms. Blunck"), currently evidenced by the proof of claims # 9 and # 10 on the
Bankruptcy Court's Claim Register. Said claims were filed by Ms. Blunck as fully secured,
and evidenced by an Abstract of Judgment filed on April 15, 2013, with the County Clerk
of Camp County, Texas.
The automatic stay is hereby lifted with regard to Ms. Blunck's claims, and shall no
longer prevent any collection efforts, of Ms. Blunck as it may relate to claims 9 & 10, or
other pending property settlements with the Debtor.
The extent to which Ms. Blunck may pursue her remedies to satisfy her allowed
bankruptcy claims against the debtor, or any additional provision of the Divorce Decree
and other pending orders now under appeal, shall be subject to the supervision and
jurisdiction of the 22nd Judicial District Court in and for Hays County, Texas.
The remedies for which the automatic stay is lifted do not include the enforcement
by contempt. That limitation shall not prevent Ms. Blunck, through her counsel, or other
parties in interest, from seeking additional modification of the stay from the Bankruptcy
Court should the need arise to enforce the provisions of the Debtor's Confirmation Order
or other Orders issued by the 22nd Judicial District Court of Hays County, Texas.
Is/ Gordon Mosley
Gordon Mosley
SBN: 00791311
Counsel for the Debtor
Is/ Lloyd Kraus
Lloyd Kraus
For the Chapter 13 Trustee
Page 17 of 207 000017
Case 13-20129 Doc 80 Filed 12/27/13 Entered 12/27/13 11:18:22 Desc Main
Document Page 6 of 6
WILCOX lAW, P.L.L.C.
P.O. Box 11509
Fort Worth, Texas 76110-0509
206 E. glh Street, Suite 201
STEPHEN G. WILCOX Fort Worth, Texas 76102
817-870-1181 (fax)
817-870-1694 (direct)
swilcox@wilcoxlaw.net
December 17, 2013
VIA EMAIIJFACSIMILE
Gordon Mosley
4411 Old Bullard Rd., No. 700
Tyler, TX 75703
RE: TEDDE BLUNCK; CASE NO. 13-20129-BP-13
Dear Mr. Mosley:
Our client, Ford Motor Credit Company LLC ("Creditor"), has filed its Objection to
Confirmation in this matter. In order to resolve our objections, I propose the following agreement:
The parties agree that Creditor's claims secured by a 2008 Ford F 150, vehicle identification
number 1FTPW14V88FB48320, and a 2012 Ford Escape, vehicle identification number
1FMCUOEG7CKA65259, will be paid directly by Debtor to Creditor according to all ofthe terms
and provisions of the contracts regarding the vehicles. The parties agree that, in the event the last
payments due on these secured claims are due after the date on which the final payments under the
plan are due, these secured claims are subject to 11 U.S.C. § 1322(b)(5) and discharge of these
secured claims is subject to the provisions of 11 U.S.C. §1328 (a) and (c). Creditor shall retain its
lien on the vehicles described herein until it is paid in full pursuant to the terms of the contracts with
the Debtor.
If this is agreement is acceptable, please sign below and return this letter to me as quickly
as possible. Additionally, please present the signed letter agreement to the Chapter 13 Trustee to
attach to the Confirmation Order. Thank you very much.
Sincerely yours,
Stepfien Wi/Co;t
Stephen G. Wilcox
Page 18 of 207 000018
FILE COPY
MANDATE
THE STATE OF TEXAS
TO THE 22ND DISTRICT COURT OF HAYS COUNTY, GREETINGS:
Trial Court Cause No. 11-1217
Before our Court of Appeals for the Third District of Texas on July 2, 2014, the cause on
~peal to revise or reverse your judgment between
TeddeR. Blunck
No. 03-13-00074-CV v.
Cathy A. Blunck
Was daermi ned, and therein our Court of Appeals ma:le its order in these words
This is an appeal from the judgment signed by the trial court on October 24,2012. Having
reviewed the record, the Court ~re:s that the appeal should be dismissed. Therefore, the Court
dismisses the appeal as moot. The appellant shall pay all costs rei ati ng to this appeal, both in this
Court and the court bel ow.
Wherefore, we command you to obs::rve the order of our Court of Appeals in this behalf and in
all things have the order duly re:ognized, obeyed, and executed.
Witness the Honorable J. Woodfin J:mes, Chief
Justice of the Court of Appeals for the Third District
of Texas, with the SEBI of the Court affixed in the City
of Austin on Thun:day, December 11,2014.
By: Amy Strother, Deputy Clerk
Page 19 of 207 000019
FILE COPY
BILL OF COSTS
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
No. 03-13-00074-CV
TEddeR. Blunck
V.
Cathy A. Blunck
(No 11-12171N 22ND DISTRICT COURT OF HAYS COUNTY)
Type of Fee Charges Paid By
FILING $15.00 E-PAID TEDDER BLUNCK
FILING $15.00 E-PAID TEDDER BLUNCK
FILING $10.00 E-PAID TEDDER BLUNCK
FILING $10.00 E-PAID TRACY TODD
FILING $10.00 E-PAID TEDDER BLUNCK
FILING $10.00 E-PAID TRACY TODD
REQUIRED TEXAS.GOV EFILING FEE $5.00 E-PAID KARLE HAYS
FILING $10.00 E-PAID KARLE HAYS
REQUIRED TEXAS.GOV EFILING FEE $5.00 E-PAID KARLE HAYS
REQUIRED TEXAS.GOV EFILING FEE $5.00 E-PAID TEDDER BLUNCK
REQUIRED TEXAS.GOV EFILING FEE $5.00 E-PAID TEDDER BLUNCK
FILING $10.00 E-PAID TEDDER BLUNCK
REQUIRED TEXAS.GOV EFILING FEE $5.00 E-PAID TEDDER BLUNCK
FILING $10.00 E-PAID TEDDER BLUNCK
SUPPLEMENTAL CLERK'S RECORD $0.00 UNKNOWN
SUPPLEMENTAL CLERK'S RECORD $72.00 UNKNOWN
CLERK'S RECORD $300.00 UNKNOWN
FILING $100.00 PAID TEDDER. BLUNCK
SUPREME COURT CHAPTER 51 FEE $50.00 PAID TEDDER. BLUNCK
INDIGENT $25.00 PAID TEDDER. BLUNCK
- - - · - - - ---~~ ----=---=-c=- -------~--~
=--- - -- ~-~-=--- --
Court costs i~-!~i s cause shall be paid as per the Judg111ent issuEd by this<?~~~,:!:...o~~
I, JEFFREY D. KYLE, CLERK OF THE THIRD COURT OF APPEALS OF THE
STATE OF TEXAS, do hereby CErtify that the above and foregoing is a true and correct copy of
the cost bill of THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS,
showing the charges and payments, in the above numberEd and sty I Ed cause, as the sane ~pears
of re::ord in this office.
IN TEST! MONY WHEREOF, witness my hand
andtheSeal oftheCOURT OF APPEALSforthe
Third District of Texas on Decembe" 11,2014.
By: Amy Strother, Deputy Clerk
Page 20 of 207 000020
FILED
12/15/2014 12:00:00 AM
Beverly Crumley
District Clerk
Hays County, Texas
CAUSE NO. 11-1217
IN THE MATTER OF § IN THE DISTRICT COURT
THE MARRIAGE OF §
§
TEDDE R. BLUNCK § 22ND JUDICIAL DISTRICT
AND §
CATHY A. BLUNCK § HAYS COUNTY, TEXAS
OBJECTION TO RESPONDENT’S MOTION TO SET HEARING ON MOTION TO
RELEASE AND TRANSFER PROPERTY IN THE POSSESSION OF RECEIVER AND
TO AUTHORIZE RECEIVER TO SUBMIT FINAL REPORT
This Objection to Respondent’s Motion to Set Hearing on Motion to Release and Transfer
Property in Possession of Receiver and to Authorize Receiver to Submit Final Report is brought by
Tedde R. Blunck, Petitioner. In support, Tedde R. Blunck shows:
1. Local Rules of Practice for the 22nd District Court, Part One: Civil Rules, Section
One – Settings, Rule 1. WRITTEN REQUEST states: “All cases, contested or
uncontested, MUST be set by way of WRITTEN MOTION WITH ORDER
ATTACHED. Forms will be provided, if necessary. Attorneys requesting
settings will notify opposing counsel of such motion by certified mail or hand
delivery at least ten (10) days before the date of such setting. In addition, said
Request shall include an estimated length of hearing.
“If for good cause opposing counsel cannot go to trial on such date, he shall
immediately notify the Court Administrator or Court Coordinator in writing stating
such reasons.
“If opposing counsel has not advised the Office of Court Administration within five
(5) days of such notice, the Court shall proceed to set such case for hearing.”
2. Petitioner received Respondent’s notice of Motion to Set Hearing on Motion to
OBJECTION TO RESPONDENT’S MOTION TO SET HEARING ON MOTION TO RELEASE AND TRANSFER PROPERTY IN
POSSESSION OF RECEIVER AND TO AUTHORIZE RECEIVER TO SUBMIT FINAL REPORT Page 1 of 3
Page 21 of 207 000021
Release and Transfer Property in Possession of Receiver and to Authorize Receiver
to Submit Final Report on December 12, 2014 via e-mail requesting the hearing be
set for December 18, 2014 at 9:00 a.m.
3. This Objection is filed within the required five (5) days of receipt of Notice.
4. Notice has not been delivered via certified mail or hand delivery as required by
Rule 1.
5. Notice period provided 6 days and not 10 days as required by Rule 1.
6. The Notice and Motion fail to state an estimated length of hearing.
7. The Notice and Motion wholly fail to comply with the Local Rule 1 set out in
Paragraph 1 above.
8. Texas Rules of Civil Procedure, Rule 21a, states in pertinent part: “Every notice
required by these rules, and every pleading, plea, motion, or other form of request
required to be served by Rule 21, other than the citation to be served upon the filing
of a cause of action and except as otherwise expressly provide in these rules, may
be served by delivering a copy to the party to be served, or the party’s duly
authorized agent or attorney of record, as the case may be, either in person or by
agent or by courier receipted delivery or by certified mail or registered mail, to the
party’s last known address, or by telephonic document transfer to the recipient’s
current Telecopier number, or by such other manner as the court in its discretion
may direct.”
9. Service was not provided in accordance with the requirements of the foregoing
Rule 21a.
10. Petitioner has not had adequate time to prepare for the hearing.
OBJECTION TO RESPONDENT’S MOTION TO SET HEARING ON MOTION TO RELEASE AND TRANSFER PROPERTY IN
POSSESSION OF RECEIVER AND TO AUTHORIZE RECEIVER TO SUBMIT FINAL REPORT Page 2 of 3
Page 22 of 207 000022
Tedde R. Blunck prays that the Court sustain his objection to Respondent’s Motion to Set
Hearing on Motion to Release and Transfer Property in Possession of Receiver and to Authorize
Receiver to Submit Final Report and deny Respondent’s Motion and require Respondent to
comply with Local Rule 1 stated in Paragraph No. 1 above and Rule 21a of the Texas Rules of
Civil Procedure.
Respectfully submitted,
TEDDE R. BLUNCK, PETITIONER
502 Quitman Street
PO Box 1152
Pittsburg, Texas 75686
Tel: (903) 855-8460
Fax: (903) 855-8465
By:
Tedde R. Blunck, Pro Se
Certificate of Service
I certify that a true copy of the above was served on each attorney of record or party in
accordance with the Texas Rules of Civil Procedure on December 14, 2014.
Tedde R. Blunck, Pro Se
OBJECTION TO RESPONDENT’S MOTION TO SET HEARING ON MOTION TO RELEASE AND TRANSFER PROPERTY IN
POSSESSION OF RECEIVER AND TO AUTHORIZE RECEIVER TO SUBMIT FINAL REPORT Page 3 of 3
Page 23 of 207 000023
CAUSE NUMBER 11-1217
IN THE MATTER OF § IN THE DISTRICT COURT
THE MARRIAGE OF §
§
TEDDER. BLUNCK § 22N° JUDICIAL DISTRICT
AND §
CATHY A.BLUNCK § HAYS COUNTY, TEXAS
ORDER GRANTING MOTION TO RELEASE AND TRANSFER PROPERTY
IN POSSESSION OF RECEIVER AND TO AUTHORIZE RECEIVER
TO SUBMIT FINAL REPORT
On the date subscribed below, the Court considered Cathy A. Blunck's Motion to Release and
Transfer Property in Possession of Receiver and to Authorize Receiver to Submit Final Report.
Appearances
Movant, Cathy A. Blunck, who is the Respondent in these proceedings, appeared in person
and by and through her attorney of record, Karl E. Hays.
Respondent, Tedde R. Blunck, who is the Respondent to the pending motion and the
Petitioner in these proceedings, appeared in person pro se.
Leon Breeden, court-appointed Receiver in this cause, appeared in person.
After nothing the appearance of the parties, counsel and the Receiver, the Court then took
up and considered the merits of Cathy A. Blunck's request.
Findings and Orders
Upon taking judicial notice of the file, and upon hearing the evidence and argument of
counsel, as well as noting the position of the Receiver in this matter, the Court is of the opinion and
does so find that the relief requested by Cathy A. Blunck should be granted.
Page 24 of 207 000024
Accordingly, it is ORDERED that the Receiver shall release and transfer to Cathy A. Blunck
possession and control of the following accounts currently in the possession and control of the
Receiver:
a. First National Bank, TeddeR. Blunck IRA xx111, approximate current balance of
$240,431.79.
b. Pilgrim Bank, Tedde R. Blunck IRA xxxx865, approximate current balance of
$186,304.00.
c. Capital One Bank, TeddeR. Blunck IRA xxxxxxx474, approximate current balance
of$229,945.87.
It is further ORDERED that the Receiver is appointed as TeddeR. Blunck's attorney-in-fact
for the purpose of executing any and all documents necessary to transfer title to the above-referenced
accounts to Cathy A. Blunck. It is ORDERED that the Receiver is specifically authorized to execute
any and all documents necessary to transfer title to Cathy A. Blunck of the above-referenced IRA
accounts in TeddeR. Blunck's name at First National Bank, Pilgrim Bank and Capital One Bank and
it is further ORDERED that said accounts shall be transferred to Cathy A. Blunck instanter.
It is further ORDERED that, upon transfer of possession and control of all property under
the current control of the Receiver, the Receiver shall be authorized to submit a final report to the
Court, together with a request for an approval of such report, and dissolution of the Receivership.
SIGNED this _L_B_ day of December 2014.
BILLHENRY
JUDGE PRESIDING
l
2
Page 25 of 207 000025
FILED
1/14/2015 12:40:25 PM
Beverly Crumley
District Clerk
Hays County, Texas
NO. 11-1217
JN THE MATTER OF § IN THE DISTRICT COURT
THE MARRIAGE OF §
§
TEDDER BLUNCK § 22ND JUDICIAL DISTRICT
AND §
CATHY A. BLUNCK § IIAYS COUNTY, TEXAS
MOTION TO APPROVE FINAL REPORT OF RECEIVER, FOR PAYMENT
OF RECEIVER'S FEES AND EXPENSES, AND TO DISCHARGE RECEIVER
TO fHE HO~ORABLE JUDGe BILL HENRY:
FINAL REPORT OF ACTIVITIES
This report covers my activites as receiver in this case from and after the hearing held on
March 5, 2014, after which the Court entered its "Order on Motion to Release Property in
Possession of Receiver and for Clerk to Rcleruie Cash I3ond to Receiver.. which was signed on
Mat'Ch 18, 2014. At that time the Court denied the motion of Cathy A. Bl unck to release
property in possession of receiver but did approve additional fees incutTed by the Receiver and
for payment of the cash bond on file with the clerk of court for partial payment of my fees.
I. 1 did receive payment of $7.000.00 for the cash bond from the district derk's office as
part1al payment of my total approved fees in that order of $16.037.51. leaving a balance of
approved fees in the amount of $9.037.50.
2. Since the bearing in March, 2014. [only received sporadic emails from Ms. Blunck's
anorney regarding the status of the appeal in this case. along with a request to sign an affidavit to
be filed in the appeal. which r did sign and return to Mr. Hays. ro fees are requested for these
matters.
l
Page 26 of 207 000026
3. On December ll. 2014. Mr. Hays called me and advjsed that he had received the
mandate from the Court of Appeals fmalizing the djsmissal of Mr. Blunck's appeal and that he
planned to file a motion requesting that [ be discharged as receiver and lhat the 3 IRA accounts in
the banks in Pittsburg, Texas be transferred to Cathy Blunck. I advised Mr. Hays that based on
my knowledge of how banks operate that I felt strongly that no matter how his motion and order
were actually worded that the banks would require some kind of signature from both Ms. Blunck
and me in order to process transferring the accOLmts to her name and that it would be best, in my
opinion, for the court to order me to transfer the accounts to Ms. Blw1ck rather than having me
discharged and the order directing the non-party banks to transfer the accounts to Ms. Blunck.
Mr. Hays agreed with my position on how the order should be worded and advised that he would
file the motion the next day and request a hearing t.he following week.
4. On December 12. 2014. I received and reviewed the Motion to Release and
fransfer Property in Possession of Receiver and to Authorize Receiver to Submit Final Report. I
then sent an email lo each of lhe 3 banks advising them that a hearing was scheduled for the
following week and that I anticipated that the Court would be ordering the accounts 10 be
transferred to Ms. Blunck.
5. On December 18, 2014, I appeared at the hearing on Cathy Blunck's Motion to
Release and Transfer Property in Possession of Receiver and to Authorize Receiver to Submit
Final Report. After hearing, the Court signed an order granting that motion and directing me to
transfer the 3 IRA accounts in various banks in Pittsburg. Texas to Ms. Blunck. I had previOusly
advised Mr. Hays, and advised the Court at the hearing. that I was available to go with Ms.
Blunck to Pittsburg. Texas the next day. Friday. December I 9. to try to get all of the accounts
2
Page 27 of 207 000027
transfen·ed to Ms. Blunck as quickly as possible.
At the conclusion of the hearing 1 contacted tbe disttict clerk in Pittsburg to inquire about
a suit which Mr. Blw1ck advised during the hearing that he had flied in District Court in Camp
County and in which he anticipated seeking a temporary restraining against me transferring the
accounts to Ms. Blunck. The clerk sent me a copy of the petition which had been filed on
December 17 in Cause No. CV -14-2462 styled ''Paulette M . Blunck, as Trustee of the Tedde R.
Blunck Living Trust v. Cathy A. Blunck." The original petition is styled ''PlaintifPs Original
Petition for Breach of Contract." The petition was signed by Tedde R. Blunck as attorney for
Paulette M. Blunck. as Trustee of the TeddeR. Blunck Living Trust." There was no allegation in
the petition relating to the receivership in this case nor is there a request for issuance of a
temporary restraining order, temporary injunction or permanent injunction. After consultation
with Ms. Blunck and Mr. Hays it was decided that Ms. Blunck and I would still go to Pittsburg
the next day and that in the event any type of injunction was issued and served on me or Ms.
Blunck that I would try to deal with the situation in person. 1 then advised the Court of the
situation and that in the event anything was served upon me the next day I might need to contact
the Court.
6. On December 19.2014, I left my house promptly at 4:00a.m. to begin the drive to
Pittsburg. Texas. Ms. Blunck had agreed to meet me at a shopping center right on 1-35 in Desoto.
Texas, so I could pick her up there and we could drive from there to Pittsburg with minimal
delay. I anticipated being able to make good time through use of state highway 130 to
Georgetown, Texas, and U1ereafter because of the early hour. Unfortunately T encountered heavy
rainstorms from just north of Georgetown to just nmth of Waco, with speeds reduced to a
3
Page 28 of 207 000028
maximum of 60 mph and often Jess than that for long stretches. I arrived in DeSoto right at 8 am
and picked up Ms. Blunck and we arrived in Pittsburg at approximately 10:15.
We went first to Pilgrim Bank. TI1e lady we were directed to was not anyone I had dealt
with before but she seemed to know about the situation and went to work immediately. She
called the bank's lRA department and the legal department and then advised us that everything
was good and she would have the paperwork done shortly. Based on her questions and statements
while preparing the paperwork it became apparent to me that the transactions the bank had in
mind were not what should happen. The bank intended to issue me a cashier's check for the
amount of the account, then have me deposit the check into an account in Ms. Blunck's name.
Tlus was not appropriate for several reasons, one being that I as receiver had no ownership
interest in the accOLmt and should not receive any proceeds from the account, and another being
that such a transaction would presumably destroy the status of the IRA accow1ts under federal
Jaw and incur taxes that should not be incurred. After lengthy discussions with the bank
representative, the IRA department and the legal department, I finally got across that the
transaction should be handled as if lhere were no receiver and the bank should simply close out
the account in Mr. Blunck's name and transfer lhe funds to an IRA account in Ms. Blunk's name.
We finished at Pilgrim Bank at approximately 2:15 p.m. and went across the street to
Capital One Bank. The lady 1 had dealt with previously there was not in and the employee
dealing with IRA accounts that day was from another branch but after conferring with the woman
1 had dealt with previously, and senior bank official on hand, and conferences with IRA and legal
department, they agreed to handle the transaction the same way Pilgrim's Bank had. 1l1ey had a
lot of paperwork to get approved so while they worked on that we went to Fi1·st National Bank of
4
Page 29 of 207 000029
Pittsburg. The bank president I had dealt with before was present and after quick conferences
with his departments, we got the paperworJ... started there. We then went back to Capital One and
finjshed up and then back to First National to do the same. We walked out of First National Bank
right at 5:30 p.m. Had we not gone on a Friday \\ben bank hours are extended untiJ 6:00p.m.
there is no way we could have finished all 3 accounts.
When we left First National Bank of Pittsburg. the 3 IRA accounts had been transferred
to Ms. Blunck in an aggregate amount of approximately $656,616.01 .
We then went to dinner. not having had a meal all day. We left Pittsburg at approximately
6:30 p.m. Ms. Blunck drove back to DeSoto so I could get some sleep before my drive back
home. We arrived in DeSoto at approximately 8:20. r then drove back to San Marcos and arrived
home at 12:30 a.m. Total distance traveled was 765 miles.
8. Ms. Blunck subsequently sent me a cashier's check in the amount of$9,037.50 for
payment of the remainder of my fees which had preYiously been approved by the Court.
9. The order of March 18. 2014 contained a provision entitled ''Clarification
Regarding Accounts Under Control of Receiver··. page 3. last paragraph of the Order. In that
provision. it was stated that the 4' 11 account under my receivershlp was the Parsons Brinckerhoff
Group, Inc., 40 I (k) Retirement Savings account. I have not actually done anything in regard to
that account because Mr. B!Lmck told me at the March hearing that the money (approximately
$42.000.00) was still in that accowlt and that he bad no intention of claiming any of that money 1
also advised Mr. Hays that T wus skeptical that I could do anything in regard to a 401 (k) account
because of the federal ERISA statute, which grants broad authority and immunities to plan
administrators and that given the amount of money involved in that account versus the IRA
5
Page 30 of 207 000030
accounts that my time would be better spent in dealing with the LRA accounts. ln my humble
opinion the 401 (k) account should be governed by a QDRO rather than a receiver.
REQUEST FOR PAY1\1ENT OF FEES AND EXPENSES
The Court has previously approved my hourly rate of $300.00 per hour. Time spent on
this matter is detailed below.
1. December 11, 2014 -telephone conference with Mr. I lays .5
2. December 12. 2014- review of motion and emails to 3 banks .5
3. December 18.2014- attending hearing and research on case in Pittsburg 2.5
4. December 19.2014- total travel and meal time 13 .25
5. December 19, 2014- time spent at banks getting accounts transferred 7.25
6. January 7, 2015 - review of file and preparation of tllis report 2.0
Total time through preparation of this repon 18.75
Fees requested
3.5 hours @ $300.00 per hour for December I 1 - December 1~ $1,050.00
13.25 hours for travel on Decemb~.:r 191? $300.00 per hour $3,975.00
7.25 hours for time spent at banks on December 19 @ $300.00 per hour $2.175.00
2 hours for time spent preparing this report on January 7 @J $300.00 per hour $ 600.00
Total fees requested if no hearing on thi s motion $7,800.00
Ms. Blunck bas indjcated Lhat she will pay the fees approved by the Court. The allocation
of my fees as between the parties is to be determined by the Court and is outside the scope of my
role as Receiver. Should a hearing be required on this matter. t request that the Court award
additional fees for time expended at the hourly rate of $300.00 per hour.
6
Page 31 of 207 000031
WHEREFORE. J request that the Court approve my final report, approve payment of my
fees, and discharge me from my role as Receiver in lhis case.
Respectfully submitted.
~~~~
LEON BREEDEN
120 W. Hopkins. Suite 102
San Marcos, Texas 78666
Tel: 512-396-2199
Fax: 512-754-7163
leonl@leonbrceden.com
State Bar No. 02940750
Receiver
Certificate of Se~ ice
I certify that a true copy of tlus document was served on each allorney of record or party
in accordance with the fexas Rules of Civil Procedure on January ) :"f , 2014.
~~«'~~_,
Leon Breeden. Recetver
7
Page 32 of 207 000032
FILED
1/30/2015 3:32:47 PM
Beverly Crumley
District Clerk
Hays County, Texas
CAUSE NUMBER 11-1217
IN THE MATTER OF § IN THE DISTRICT COURT
THE MARRIAGE OF §
§
TEDDER. BLUNCK § 22"n JUDICIAL DISTRICT
AND §
CATHY A. BLUNCK § HAYS COUNTY, TEXAS
MOTION FOR POST-JUDGMENT RECEIVERSHIP PURSUANT TO
SECTION 31.002, CIVIL PRACTICE AND REMEDIES CODE
1. Cathy A. Blunck has obtained a judgment against Tcddc R. Blunck in this cause. The
judgment is dated 24 Octo her 2012, and is in the amount of approximately $242,532.00. The
judgment is final and not appealable and remains fully payable. A copy of the judgment is attached
as Exhibit "A." Attached as Exhibit "B" is a copy of Section 31.002, Civil Practice and Remedies
Code (herein §31.002) upon which this motion is based.
2. §31.002(a) specifically provides that, "A judgment creditor is entitled to aid from a court of
appropriate jurisdiction ... " and §31.002( a)(3) provides f(x the appointment of a receiver to collect
the debt. Tedde R. Blunck has not paid the judgment Tcdde R. l3lunck owns property, including
present or future rights to property that cannot he readily attached or levied on by ordinary legal
process; and the property is not exempt from attachment, execution, or seizure for the satisfaction
of liabilities.
3. Accordingly, Cathy A. Blunck requests the Court order TeddeR. Blunck to turn over all non-
exempt property that is in TeddeR. Blunck's possession or subject to his control, including, but not
limited to, (I) all financial accounts (bank account), certificates of deposit, money market accounts,
accounts held by any third party; (2) all securities; (3) all real property, equipment, vehicles, boats,
In the Matterofthe Marriage of Blunck
Motion for Post-Judgment Receivership
Page I
Page 33 of 207 000033
and planes: (4) all safety deposit boxes or vaults; (5) all cash: (6) all negotiable instruments,
including promissory notes, drafts, and checks: (7) causes of action or choses of action; ( 8) contract
rights, whether present or future; and (9) accounts receivable, together with all documents related
to the property, to a receiver with authority to take possession of the non-exempt property, sell it and
pay the proceeds to Cathy A. Blunck to the extent required to satisfy the judgment, including the fees
and costs of the receiver.
4. Cathy A. Blunck further moves the Court to appoint a receiver pursuant to §31.002(b)(3), to
take possession of the non-exempt assets and documents related to the assets, sell the assets and
apply the proceeds from the sale to satisfy the judgment, including the receiver's fees and costs.
Cathy A. Blunck requests this court to appoint Leon Breeden whose address is 120 W. llopkins.
Suite 102, San Marcos, Texas, 78666 as Receiver. Mr. Breeden has previously served as a receiver
in this case.
5. Cathy A. Blunck requests that the Court award its attorney's fees, expenses and costs in the
amount of $750.00 for preparing, tiling and arguing the motion and obtaining an order. Under
§31.002(e), the judgment creditor is entitled to recover reasonable costs, including attorney's fees.
WHEREFORE PREMISES CONSIDERED, Cathy A. Blunck respectfully requests that the
Court appoint a receiver to collect the judgment in this case, award attorney's fees, and provide for
the payment of tees and costs to the receiver.
In the Matter of the Marriage of Blunck
Motion for Post-Judgment Receivership
Page 2
Page 34 of 207 000034
Respectfully Submitted,
LAW OFFICE OF KARL E. HAYS. PLLC
2101 South IH-35, Suite 210
Austin, Texas 78741
512-476-1911
512-476-1904 facsimile
By: /~L ~~~--·
Karl E. Hays
State Bar Number 09307050
servicc(cll,haysfami lylaw.com
ATTORNEY FOR CA TIIY A. BLUNCK
CERTIFICATE OF SERVICE
The undersigned attorney certifies pursuant to Rule 21 of the Texas Rules ofCivil Procedure.
that the foregoing Motionfhr Post-.!udRment Receivership Pursuant to Section 31.002, ( 'ivil Practice
and Remedies ('ode has been served upon the below-named individual, in the manner noted below,
as prescribed by Rule 2\a ofthe Texas Rules of Civil Procedure, on this 30th day of January 2015.
// cr £_ I .d---
Karl E. I lays
Via Facsimile Transmission
TeddeR. Blunck
502 Quitman St.
P.O. Box 1152
Pittsburg, Texas 75686
903-855-8456 facsimile
In the Matter of the Marriage of Blunck
Motion for Post-Judgment Receivership
Page 3
Page 35 of 207 000035
, . oc~)4. 2012 9:21AM
1 Barrett & Coble No. 0865;
I
P. 3
' \\-\:l.\1 FILED
CAUSE NUMBER 11415t
2012 NOV -I AH tO: 2 t
I
INITBEMATTEROF § IN THE DISTRICT ~-tl ~
TilE MARRIAGE OF §
§
~ D,srl!cr CLER
TEDDER. BLUNCK § Z2ND JUDICIAL DISt~~~u~wr -
I
AND § I
I
CA'l1lY A. BLUNCK § HAYS COUNTY, 'fEXAS I
!
FINAL DECREE OF DIVORCE
On 8, 9, and 16 August 2012 the Court heard this case.
Appearances
Petitioner, Tedde R. Blunck, appeared in person, pro se, and announced ready for
I
trial.
Respondent, Cathy A. Blunck, appeared in person and through attorney of record,
John Barrett, and announced ready for trial.
Record
The record of testimony was duly reported by the court reporter for the 22nd
Judicial District Court.
Jurisdiction and Domicile
The Court, upon taking judicial notice of the contents of the file in this 1cause,
:,
finds that the pleadings of Petitioner and Respondent are in due form and contain 'all the I
I
..:r allegations, infonnation. and prerequisites required by law. The Court, after receiving
CD
1r.)
-'
~
evidence, finds that it has jurisdiction of this case and of all the parties and that ~tI least
> I
I
sixty days have elapsed since the date the suit was filed. The Court finds that both
JMMQBlunck
Final D6aes ofDivorcs
I Page I
I
000175
Page 36 of 207 28 000036
~,. Oc!)4. 2012 9:21AM Barrett & Coble No. 0865: P. 4
Petitioner and Respondent have been domiciliaries of Texas for at least a siximonth
period preceding the filing of this action and residents of the county in which this'! suit is
!
I
filed for at least a ninety-day period preceding the filing of this action. Additional:ly. the
I
i
Court finds that all necessary parties have entered their appearances in this cause and are
I
'
properly before the Court.
Jury
II
A jury was waived, and questions of fact and of law were submitted to the Court.
I!
Divorce
I
IT IS ORDERED AND DECREED that Tedde R. Blunck, Petitioner, and \Cathy
i
A. Blunck, Respondent, are divorced and that the marriage between them is dissolyed on
the grounds of adultery by Tedde R. Blunck.
Child of the Marriage
The Court finds that there is no child of the marriage of Petitioner and Resp~ndent
and that none is expected.
Division of Marital Estate
i
I
I
The Court finds that the following is a just and right division of the parties' marital
co
Lf)
UJ estate, having due regard for the rights of each party.
0
t.::)
~ Property to TeddeR. Blunck
.:
CD IT IS ORDERED AND DECREED that Tedde R. Blunck is awarde~ the
l/) '
-J '
~ following as his sole and separate property, and Cathy A. Blunck is divested of alljrigbt,
'
1.
lMMO,/JIWtck
Final Deeret ofDtvol'ce
ipage2
I
000176
Page 37 of 207 29 000037
~ f
Oct. 24. 2012 9:21AM
'9 I
Barrett & Coble No. 0865 P. 5
4
title, interest, and claim in and to that property:
'
1. The real property and improvements located at 11 52 Little Bear Road, 1
Buda, Hays County, Texas, subject to Cathy A. Blunck's right to exclw;ive use of the
property pending payment of funds by Tedde R. Blunck, including but not limited to any
escrow funds, easements, homeowners association rights, prepaid insurance, :utility
deposits, keys, house plans, home security access and code, keys and garage door opener,
warranties and service contracts, and title and closing documents related to the prqperty,
which is more particularly described as:
Lot 9, Block C of Elliott Ranch, Phase Four, a subdivision in Hays County, Texas,
according to the map or plat of record in Volume 12, Pages 151-156 of the Plat
~sofHaysCoun~~Te~
2. The real property and improvements located at 1347 CR 4510 Pittsburg,
Camp County, Texas, including but not limited to any escrow funds, easements,
homeowners association rights, prepaid insurance, utility deposits, keys, house plans,
home security access and code, keys and garage door opener, warranties and service
contracts, and title and closing documents related to the property. which is. more
particularly described as: ·
ABS A060 Mary Hayes, Tract, 41-5000, 406.93 (+1.55 AC in Rd.) acres, Camp
County, Texas (containing a computed area of 408.48 acres with 1.55 acres in a
public road. leaving a net area of 406.93 acres)
BEING a tract ofland situated in the MARY HAYS SURVEY ABSTRACT NO.
60, Camp County, Texas and being the remainder of a tract of land conveyed to E. B.
McCaslin by deed recorded in volume 191 Page 415 Deed Records Camp C~unty,
Texas, and being more particularly described by metes and bounds as follows:
BEGINNING at a point for the Southeast corner of this tract on the centerline of
County Road No. 4Sl0, wne being the Northeast comer of a tract of land
conveyed to F. M. Jones by deed recorded in volume 22 page 286 Deed Records
Camp County, Texas. ·
TIIENCE South 89 degrees 56 minutes 43 seconds West, passing a Yz. inch
capped (yellow plastic stamped Dewey 1641) steel rod set on the West line of
County Road No. 4510 at 20.00 feet and continuing along the conunol) line
between said McCaslin and Jones tracts and generally along a wire fence. for a
total distance of 2443.60 feet to a Y2 inch capped (yellow plastic stamped
IMMO :BI1mcl.:
Final DeCI'"U ofDfwJrce
i'ageJ
000177
Page 38 of 207 30 000038
.
, ' Od.' 24. 2012 9:21AM Barrett & Coole No. 0865 P. 6
'
'
Dewey 1641) steel rod set for comer, same being a point in the East line of a
tract of land in the name of Mrs. Hallie Reed, (no recording data). '
lHENCE North 20 degrees 00 minutes 00 seconds West along the common
line between said McCaslin and Reed 1racts, passing the Southeast com~ of a
tract of land in the name of 1. W. Smith, (no recording data), also passing the
Southeast comer of a tract of land in the name of J.D. Pankhurst, (no
recording data) and continuing generally along a wire fence for a total d.i~tance
of 6370.90 feet to a point for comer in Prairie Creek. · · ·
TIIENCE the following calls along the common line between said McCaslin
and Pankhurst tracts and the meanderings of said creek: ·
1. North 43 degrees 20 minutes 02 Seconds East 366.11 feet ~
2. North 14 degrees 19 minutes 43 seconds West, passing the Northeast comet
of said Pankhurst tract, same being a comer of a tract of land conveyed to
Prairie Creek Ranch Partnership by deed recorded in volume 255 page 407
Deed Records Camp County, Texas and continuing for a total distarice of
2187.00 feet to a point for comer in said cree~ same being the Sou¢west
comer of a tract of land in the name ofP. L. Nolen et al, (no recording data).
3. North 48 degrees 55 minutes 32 seconds East along the common line between
said McCaslin 1md Nolen tracts for a distance of 61.73 feet to a point for ~omer
msaid creek. ·
4. South 54 degrees 55 minutes 32 seconds East along the conunon line between
said McCaslin and Nolen tracts for a distance of2 34.56 feet to a point for
comer in said creek.
5. North 55 degrees 17 minutes 22 seconds East along the coaunon line between
said McCaslin and Nolen tracts for a distance of 300.86 feet to a point for c:;orner
in said creek.
6. THENCE South 87 degrees 51 minutes 39 seconds East along the common
line between said McCaslin and Nolen tracts for a distance of 121.10 f~ to a
point for comer in said creek.
1. 1HENCE North 60 degrees 17 minutes 00 seconds East along the coxpmon
line between said McCaslin and Nolen tracts for a distance of 83.25 feet to a
point for comer in said creek.
8. North 73 degrees 43 minutes 49 seconds East along the conunon line between
said McCaslin and
Nolen tracts for a distance of 48.00 feet to point for comer in said creek,
9. South 64 degrees 21 minutes 04 seconds East along the common line between
said McCaslin and
Nolen tracts for a distance of 218.71 feet to a point for comer in said creek:
I 0. North 11 degrees 55 minutes 04 seconds West alpng the common· line
IMMO Blllllck
F/IIQI Decree ofDivorce
Page4
000178
Page 39 of 207 31 000039
Oct. 24. 2012 9:21AM
' . Barrett & Coble No. 0865 P. 7
between said McCaslin and Nolen tracts for a distance of 65.38 feet to a ,point
1
for comer in said creek. : I
1.I. North 08 degrees SO minutes 00 seconds East along the common line between
said McCaslin and
Nolen tracts for a distance of 112.06 feet to a point for corner in said creek;
12. South 66 degrees 39 minutes 07 seconds East along the common line between
said McCaslin and ·
Nolen tracts for a distance of 201.50 feet to a point for comer in said cree~
13. North 85 degrees 46 minutes 22 seconds East along the common line between
said McCaslin and Nolen tracts for a distance of 21.50 feet to a point for corner
in said creek, same being a point in the West line of a tract of land in the pame
of H. Stephens, (no recording data). '.
TIIBNCE South 19 degrees 48 minutes 58 seconds East along the common
line between said McCaslin and Stephens tracts and generally along a. wire
fence, passing the following tracts along the East line of McCaslin tract: :
Annie Reynolds, (no recording data), Hartwell Stephens, (no recording data),
and a tract of land conveyed to E. R. McCaslin and Myrtle McCaslin by· deed
recorded in volume 59 page 43 Deed Records camp County, Texas and
continuing for a total distance of 5101.23 feet to a fence post found for comer.
TimNCE North 70 degrees 11 minutes 31 seconds East along the common
line between said McCaslin tracts and generally along a wire fence, passing a ~
inch capped (yellow plastic stamped Dewey 1641) steel rod set on the West line
of County Road no. 4510 at 1704.66 feet and continuing for a total distance of
1724.66 feet to a point for comer on the centerline of said road. .
TiffiNCE the following calls along the centerline of County Road No. 4510:
I. South 08 degrees 28 minutes 17 seconds West 164.1 0 feet to a point for
comer.
2. South 03 degrees 48 minutes 48 seconds West 93.76 feet to a po~t for
comer.
3. South 03 degrees 18 minutes 05 seconds East 89.55 feet to a point for cotner.
4. South 07 degrees 16 minutes 56 seconds East 1079.09 feet to a P?~t for
comer.
5. South 11 degrees 27 minutes 19 seconds East 78.79 feet to a point for comer.
6. South 02 degrees 34 minutes 16 seconds West 258.83 feet to a point for
comer.
7. South 06 degrees 55 minutes 55 seconds West 1230.11 feet to a point for
comer, same being the Northeast comer of a tract of land conveyed to 1. B.
Cravey et ux by deed recorded in volwne 53 page 286 Deed Records Gam.p
County, Texas.
IMMO Bl11nck
Final DeCI'ee ofDivorce
PageS
000179
Page 40 of 207 32 000040
.
Oct. 24. 2012 9: 21 AM
'
Bar ret t & Cob 1e No. 0865 ' P. 8
'
I
THENCE North 86 degrees 34 minutes 49 seconds West along the common
line between said McCaslin and Cravey tracts and generally along a wire 'fence
for a. total distance of 225.52 feet to a fence post found for comer. ·
THENCE South 04 degrees 19 minutes 46 seconds West along the common
line between said McCaslin and Cravey tracts and generally along a wire .fence
1
for a distance of 420.00 feet to a ~ inch capped (yellow plastic stamped Dewey
1641) steel rod set for comer. 1
THENCE South 86 degrees 34 minutes 49 seconds East along the COI11IDon
line between said McCaslin and Cravey tracts and generally along a wire fence,
passing the West line of county Road No. 451 0 and continuing for total a
distance of 236.90 feet to a point for comer on the centerline of said road. :
THENCE the following calls along the ccmterline of said road: .
1. South 13 degrees 03 minutes 14 seconds East 40.27 feet to a point for
comer.
2. South 21 degrees 13 minutes 53 seconds East 66.65 feet to a point for
comer.
3. South 25 degrees 52 minutes 28 seconds East 83.10 feet to a pomt for
comer. '
4. South 29 degrees 54 minutes 57 seconds East for a distance of 825.81 feet to
the point of BEGINNING. :
CONTAINING a computed area of 408.48 acres with 1.55 acres in a public
road, leaving a net area of 406.93 acres.
I
1HIS CONVEYANCE 1S SUBJECT TO ALL RESTRICTipNS,
EASEMENTS, RIGHTS-OF-WAY, AND CONVEYANCES OF RECO,RD.
'
3. The following timeshares:
N a. A 2% undivided interest as tenant-in-common in and to Unit 086 (the
\.() "Unit"), Hill Country Resort, Phase 5, a vacation resort in Comal County,
\0 Texas, according to the Second Amended and Restated Declaration of
0
C) Restrictions, Covenants and conditions recorded under File No. 20000
a... 6037046 md Supplemental Declaration recorded under File No. N/A Real
..:1" Property Records ofComal COWlty, Texas, (collectively the "Declaration"),
(X)
Lf) and as shown and described in the Plat of Hill CoWltry R.esort recorded in
_J
c::i)
Volume 8, Page 385 of the Plat ~cords, Coma! County, Texas, together
> with the exclusiv~ right to occupy the Unit during Use Period No. 50,
beginning DECEMBER 14, 2007, as said Use Period is defined in the
IMMO Blrmck
Final Decree ofDivo,ce
!fage6
000180
Page 41 of 207 33 000041
.
Oct. 24. 2012 9:22AM Barrett & Coble No. 0865 P. 9
Declaration upon and subject to all of the terms, restrictions, covenants,
conditions, provision in the Declaration and any amendments thereto. ,
b. A 2% undivided interest as tenant-in-common in and to Unit OS7 {the
"Unit"), Hill Country Resort, Phase 3, a vacation resort in Comal C~unty 7
Texas, according to the Second Amended and Restated Declaration of
Restrictions, Covenants and conditions recorded Wlder File No. 20000
6037046 and Supplemental Declaration recorded under File No. N/A Real
Property Records ofComal County, Texas, (collectively the ''Declarationu),
and as shown and described in the Plat of Hill Country Resort recorded in
Volume 8, Page 345 of the Plat Records, Comal County, Texas, together
with the exclusive right to occupy the Unit during Use Period No. 17,
beginning APRIL26, 2008, as said Use Period is defined in the Declaration
upon and subject to all of the terms. restrictions. covenants, conditions,
provision in the Declaration and any amendments thereto. 1
•
4. The real property and improvements located at 502 Quitman ~treet.
Pittsburg, Camp County, Texas, 75686 including but not limited to any
escrow funds, easements homeowners association rights, prepaid
7
insurance, utility deposits, keys, house plans, home security access and
code, keys and garage door opener, warranties and service contracts, and
title and closing documents related to the property. which is :more
particularly described as:
.52 acre Nancy Glass Survey, Abstract No. 073. A-43 (aka Lot 08, E Pt.
City Block 48 per CCAD), City of Pittsburg, Camp Comty, Texas
Being a lot, tract, or parcel of land situated in the Nancy Glass Survey,
Abstract No. 073, Camp County, Texas, and being all of that certain trnct of
land conveyed from Zeliah Heath et vir to Dr. Manuel Guerra. by Wananty
deed, as recorded in Volume 141, page 342, Deed Records, Camp CoWlty,
Texas, and being more particularly described .bY metes and bounps as
~~; :
I
i
BEGINNING at a 60d nail set in asphalt at the Northeast comer of the
remainder of a called 0.623 acre tract conveyed to Carolyn Ra~. by
Warranty Deed, as recorded in Volume 041, page 106, Real Pr~perty
Records, Camp CoWlty, Texas, said point being in the South line of! State
Highway No. 11 (a.k.a. Quitman Street), from said point, a Ya inch i~n rod
found, bears North 69 Degrees 03 Minutes 27 Seconds West, a dis~e of
IMMO 'B!IUick
Final Decrae of Divorce
'Page 7
000181
Page 42 of 207 34 000042
Oct. 24. 2012 9:22AM Barrett & Coble
This text is long and has been trimmed here. Open the source document for the complete record.