Opinion

Tedde R. Blunck v. Cathy A. Blunck

Court
Texas Court of Appeals, 3rd District (Austin)
Filed
Jun 9, 2015
Status
Published
Cited by
0 cases
Authority
More cited than 3.1%

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

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