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Fornesa v. Fifth Third Mortgage Co.

Court of Appeals of Texas, Fourteenth District

August 30, 2019

MARK ANTHONY FORNESA; JUDY THANH FORNESA; RICARDO FORNESA, JR.; AND CYNTHIA FORNESA, Appellants
v.
FIFTH THIRD MORTGAGE COMPANY, Appellee

          On Appeal from the County Court at Law No 1 Fort Bend County, Texas Trial Court Cause No. 17-CCV-060874

          Panel consists of Justices Wise, Zimmerer, and Spain.

          PER CURIAM

         This is an eviction case from a residence; it arises out of a forcible-detainer proceeding in the justice court. See Tex. Prop. Code Ann. §§ 24.002, .004. After a bench trial, the justice court (1) found pro se defendants "Mark Anthony Fornesa; Cynthia Fornesa and All Occupants of 6427 Moreland Lane, Rosenberg Tx 77469" guilty of forcible detainer and (2) awarded possession of 6427 Moreland Lane, Rosenberg, Texas 77469 to plaintiff Fifth Third Mortgage Company. Fifth Third Mortg. Co. v. Fornesa, No. 17-JEV12-12288 (J.P. Ct. Precinct 1, Pl. 2, Fort Bend Co., Tex. Sept 12, 2017). The judgment authorized a writ of possession. See Tex. Prop. Code Ann. § 24.0061.

         Ricardo Fornesa, Jr., a non-lawyer, filed a notice of appeal on behalf of Mark Anthony Fornesa, Judy Thanh Fornesa, and Occupants Ricardo Fornesa, Jr. and Cynthia Fornesa.[1] See Tex. R. Civ. P. 506.1. The case was tried de novo in the county court. See Tex. R. Civ. P. 506.3.

         At trial, plaintiff Fifth Third Mortgage Company offered without legal objection, and the court admitted, the following exhibits:

(1) foreclosure-sale deed (grantors Mark Anthony, Judy Thanh; mortgagee Fifth Third Mortgage Company);
(2) deed of trust;
(3) business records affidavit of notices to vacate the property; and
(4) memorandum findings of fact and conclusion of law in Fornesa v. Fifth Third Mortg. Co., No. 4:15-CV-02094 (S.D. Tex. Mar. 23, 2017) ((a) voiding January 28, 2015 [sic] quitclaim deed from Mark Anthony and Judy Thanh to Ricardo and Cynthia and (b) rejecting argument that foreclosure proceeding violated 11 U.S.C. § 362 bankruptcy stay).

         The only defendant to appear at trial was Ricardo, who offered, and the court admitted, the following exhibits:

(A) declaration of Philip Danaher filed in Fornesa v. Fifth Third Mortg. Co., No. 4:15-CV-2094 (S.D. Tex. Mar. 23, 2017);
(B) notice of bankruptcy filing In re Fornesa, No. 12-37238 (Bankr. S.D. Tex.);
(C) January 8, 2015 quitclaim deed from Mark Anthony and Judy Thanh to Ricardo and Cynthia;
(D) sales history report page from Fifth Third ...

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