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Neuse v. Nationstar Mortgage, LLC

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

February 20, 2018

JUDITH ANN NEUSE AND ALL OCCUPANTS OF 2115 ICHBOD LN, EDINBURG, TEXAS 78539 Appellants,
v.
NATIONSTAR MORTGAGE, LLC D/B/A CHAMPION MORTGAGE COMPANY, Appellee.

         On appeal from the County Court at Law No. 8 of Hidalgo County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Hinojosa

          ORDER

          PER CURIAM

         On October 26, 2017, this Court issued an Order of Abatement and ordered the trial court to conduct a hearing and make and file appropriate findings of fact and conclusions of law.

         On November 28, 2017, the Clerk of this Court sent correspondence to the trial court inquiring as to the status of the findings and conclusions.

         To date, no findings and conclusions have been filed.

         On February 13, 2018, appellee NationStar Mortgage, LLC d/b/a Champion Mortgage Company filed a motion to dismiss the appeal for want of prosecution. As this case is currently under abatement, this Court is not in a position to entertain appellee's motion to dismiss. Appellee's impatience with the case has been registered with the Court, and its attempt to stymie appellant's attempt to invoke appellate review, its filing of a motion to dismiss while this case is under abatement, and its failure to appreciate the jurisdictional concerns expressed in the abatement order, as further detailed below, are looked upon with disfavor.

         From appellee's motion to dismiss, it appears that appellee believes that this Court's October 26, 2017 Order of Abatement placed the onus on appellant to initiate a hearing in the trial court and that this Court is solely concerned with appellant's standing to proceed pro se. Appellee misapprehends this Court's order of abatement.

         The onus to initiate the hearing was placed on the trial court. Moreover, this Court is not only concerned with its jurisdiction, but also that of the lower courts. "Appellate court jurisdiction over the merits of a case extends no further than that of the court from which the appeal is taken." Ward v. Malone, 115 S.W.3d 267, 269 (Tex. App.-Corpus Christi 2003, pet. denied); see also Hopes v. Buckeye Retirement Co., LLC, No. 13-07-00058-CV, 2009 WL 866794, at *1 (Tex. App.-Corpus Christi Apr. 2, 2009) (mem. op.). Therefore, if the lower courts lacked jurisdiction, we may only set aside the judgments and dismiss the case. Ward, 115 S.W.3d at 269. As part of this Court's check on its and the lower courts' jurisdiction, we must know whether Judith Ann Neuse was alive at the time judgments were rendered against her in the justice court and the county court at law.

         Texas law provides that a decedent may not sue or be sued. See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005) (noting that a decedent's estate is not a legal entity and may not properly sue or be sued as such); see also Tex. R. Civ. P. 152 (providing that upon notice of the death of the defendant the clerk shall issue a scire facias for the administrator or executor or heir requiring him to appear and defend the suit and upon the return of such service, the suit shall proceed against such administrator or executor or heir). Moreover, the Texas Estates Code allows a creditor to initiate probate proceedings in order to create an estate administration and for the appointment of an administrator to serve as a proper defendant. Compare Tex. Est. Code Ann. § 22.018(1) (defining interested person to include a creditor) with § 301.051 (authorizing an interested person to apply for letters of administration) (West, Westlaw through 2017 1st C.S.).

         The Court respectfully requests that the trial court comply with the provisions of its October 26, 2017 Order of Abatement. As an added measure to ensure that this Court's order of abatement is followed and this case proceeds as expeditiously as possible, the Court LIFTS THE ABATEMENT for the limited purpose of ordering that:

• the trial court shall convene the hearing as soon as practicable;
• all counsel and pro se parties must attend the hearing in person and telephonic attendance is prohibited;
• proposed findings of fact and conclusions of law, as discussed in our abatement order, and any briefing that the parties deem necessary shall be filed with the trial court within ...

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