### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00373- CV

P hili p Emiabata and S ylvia Emiabata, Appellants

v. National Capital Managem ent, LLC, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GN-0 8-0 0301 9, H ONO RAB LE RHO NDA HURLEY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellants Phili p Emiabata and Sy lvia Emiabata appea l from a summary judgme nt in favor of appellee National Capital Manag ement, L L C (Na tional) on its suit for a promissory -note defic iency

. The Emiabatas arg ue that the district court err ed by (1) not g ranting their motion to compel discovery response s, (2) g ranting summary judgme nt in violation of an au to ma ti c b a n k r u p tc y stay , (3) failing to rule on their reque st f or additional time to file an answe r and g ranting summary judgme nt despite their failure to file an answe r, (4) g ranting summary judgme nt despite National’s failure to provide summary -judg ment evidenc e of the defic iency amount, and (5) awa rding National 13.95% post-judgme nt interest in the summary judgme nt. For the rea sons discussed below, we will aff irm the district court’s judg ment.F ACTUAL AND P ROCEDURAL BACK GR OUND The Emiabatas enter ed into a loan ag ree ment i n 2 0 0 1 with Citi Financ ial Auto to purcha se a L incoln Navig ator from Pavilion L incoln Merc ury in Austin, Texas. The loan ag ree ment, wh i ch Citi Financ ial Auto subsequently transfe rre d to National, included a secur ity interest in t h e E m i ab atas’ L incoln Navig ator. The Emiabatas made initial pay ments on the loan in acc ordan ce with the contra ct, but then defa ulted in 2007 by failing to make pay ment of the principal and interest due. Following the Emiabatas’ defa ult and fa i l u re to respond to demands for pay ment, National

re possessed the vehicle and sold it at private auction. Acc ording to National, the forc ed sale l ef t

a defic iency of $20,034.91. National filed this case ag ainst the Emi ab atas, seeking rec overy of the defic iency , and subsequently filed a motion for summary judgme nt. The case was automatically stay ed when the Emiabatas filed for bankruptc y protec tion in fede ral district court, see 11 U.S.C.A. § 362(c) (West Supp. 2011), but once the ba nkruptcy case was closed and the stay lifted, National

re- urg ed its motion for summary judgme nt, which the district court g rante d. This appea l followed.

DISCUSSIO N Motion to com pel

I n their first issue, the Em iabatas complain about t he di s t ri ct co urt’s failure t o rule

on their motion to co m p el d i s co very response s. The Emiabatas alleg e that they serve d discovery reque sts on National on Marc h 2, 2010, and when National did not respond, filed a motion to compel those discovery response s. On appeal, t he Emi abata s as s er t t h at t he dis trict court’s failure to rule

on their motion to compel denied them their rig ht to conduct discovery an d , thus, their ability to defe nd ag ainst National’s c laim.
2We note initially that, althoug h the Emiabatas have attache d a copy of their discovery

motion to their appellate brief, t here is no motion to compel in the rec ord. We may not consider matters or information that are outside the rec ord. See In re M.S. , 115 S.W .3d 534, 546 (Tex. 2003) (holding that “this Court—or any other appellate court—may only consider the rec ord prese nted to it and we cannot speculate on what mi g ht or m ight not be in t h e m i s s i n g p o rtions of t he record” ). Fur ther, although the Emiabatas assert i n their app el l at e b ri ef that their m otion to compel was set for hear ing o n the same date as National’s motion for summary judgme nt, there is nothing in the appellate rec ord supporting that asser tion or indicating th at the motion was ever prese nted to the district court. A complaint that was not prese nted t o the trial cour t by a timely reque st, objection, or motion is not preserve d for a ppeal. See Tex. R. App. P . 33.1(a)

. E v en i f t he record included a copy of t he mot ion and showed that it was presente d to the di strict court, the Emiabatas’ motion to compel was premature

. The mot ion attache d to the Emiabatas’ appellate brief, which is dated Mar ch 1 8 , 2010, asser ts that the Emiabatas serve d discovery reque sts on National on Marc h 2, 2010. Under the rules of civil proce dure, discovery response s are due, at the ear liest, thirty day s afte r service of the discovery reque st. See, e.g. , Tex. R. Ci v . P. 1 9 4

. 3 ( reque sts for disclosure); 196.2 (re quests for production); 197.2 (interr og atories) ; 1 9 8

. 2 (r eq u es t for admissions). Thus, National’s response to the Emiabatas’ discovery reque sts wo u l d not have been due until, at the ear liest, April 2, 2010. I t was cer tainly not due when the Emiabatas alleg edly filed their motion seeking to compel the response s. There fore , on its fac e, the Emiabatas’ motion to compel lacked mer it. Accor dingly , we ove rrule the Emiabatas’ first issue.

3Autom atic stay I n t h eir second issue, the Emiabatas asser t that the district court violated the bankruptc y code’ s automatic st ay when it g rante d National’ s m o t i o n for summ ary judgme nt. See 1 1 U. S .C.A. § 362(c)

. The rec ord shows that the Emiabatas filed for chapte r 13 bank ru p t cy protec tion in November 2008. I n most instances when a bankruptc y petition is filed, it trig g ers an 1 automat i c s t ay of “the commence ment or continuation

. . . of a judicial, administrative, or other action or proce eding ag ainst the debtor that wa s o r co u l d have been commence d befor e the

commence ment of t he [ bankruptc y ] case .” See id. § 362(a)(1 ). Any action taken in a procee ding that is subject to the automatic stay is void. See In re Sensitiv e Ca r e, Inc ., 28 S.W .3d 35, 38-39 (Tex. App.—For

t Worth 2000, orig

. proce eding ) (holding that judgme nt rende red afte r bankruptc y petition was filed wa s void as a matter of law)

. The Emiabatas asser

t that their bankruptc y case was pending when the district court g rante d National’s summary judgme nt—i.e., April 22, 2010—beca use they wer e in the proc ess of appea ling the bankruptc y court’s dismi ssal of t heir ch apter 13 claim. We disag ree . Although the

rec ord confirms t h at t h e E m i abata s wer e appea ling the dismiss al of their bankruptc y case on Ap ri l 22, 2010, the automatic bankruptc y stay does not rema in eff ective pending an appeal o f t h e bankruptc y matter. See In re Sullivan Cent. Plaza, I, Ltd. , 914 F.2d 731, 736 (5th Cir. 1990). Once the bankruptcy case is closed, dism issed, or a discha rg e is g rante d or denie d, the automatic stay is l i ft ed. See 11 U.S.C.A. § 362(c) (2). The bankruptc y court dismiss ed the Emiabatas’ bank ru p t cy

Gene rally stated, chapte r 13 of the bankruptc y code establishes a method for the 1 reor g anization of a debtor’s financ ial situation throug h the adjust m ent of debts that require s the debtor to pay

at least pa

rt of the de bts owed. See 11 U.S.C.A. §§ 1301-1330 (West Supp. 2011).

4case on October 26, 2009, and closed the case on J anuar y 19, 2010. Thus, the automatic stay had been lifted when the district court g rante d National’s motion for s u m m ary judgme nt on April 22. Acc ording ly , we ove rrule the Emiabatas’ second issue.

Answ er I n t h ei r third issue, the Emiabatas complain that the district court g ranted summary judgme nt despite the fa ct that they had not y et filed an answe r in this case . Specifica lly , the Emiabatas challeng e the district court’s failure to rule on their motion, filed soon afte r National filed its pe tition, re questing additional time to file an answe r. Assuming, without holding, that the district co u rt err ed when it did not rule on their motion or when it g rante d summary judgme nt befor e their answe r was on file, the Emiabatas do not explain how the district court’s failure to rule

on their m o t ion preve nted them from filing an answe r during the 20 months the case rema ined pending , nor do they provide any authority for their proposition that an answe r must be on file prior to a summary judgme nt. More importantly perha ps, the Emiabatas do not explain how either err or probably cause d the re ndition of an improper judgment. See Tex. R. App. P

. 44.1 (“N o judgme nt may be reve rsed on appea l on the g round that the trial court made an err or of law unless the court of appea ls conclude s that the err or complained of

. . . probably cause d the rendition of an improper judgme nt.”). And, g iven that the Emiabatas filed multipl e p l ea dings in this matter, including a response to National’s motion for summary judgme nt, we cannot see how the district court’s alleg ed

err or resulted in the rendition of an imprope r judg ment. Acc ording ly , we ove rrule the Emiabatas’ third issue.

5Summ ary-j udgme nt evidence I n their fourth issue, the Emiabatas asser t that the district court er red in g ranting National’s motion for summary judgme nt beca use National failed to provide summary -judg ment evidenc e showi n g t h at the Emiabatas owed $20,034.91 on the note. Specifica lly , the Emiabatas complain that National failed to produce evidenc e of the Emiabatas’ pay ment history on the loan and

asser t that they wer e not g iven cr edit for a ll the pay ments that they

had made on the loan. Be cause the propriety of a summary judgme nt is a question of law, we revie w the district court’s decision de novo. Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005). The standards for revie wing a m o t i o n for summary judgme nt are well established: (1) the movant for summary judgme nt has the burden of showing that no g enuine issue of materia l fac t exis ts as to eac h element of its claim and that it is entitled to judgme nt as a matter of law; (2) in d ec i d i ng whether there is a disputed materia l fac t issue that would prec lude summary judgme nt , ev i d en ce favor able to the nonmovant will be taken as true; and (3) ever y rea sonable infere nce must be indulge d in favor of the nonmovant and any doubts resolved in its favor

. D. Houston, Inc. v. L ove , 9 2 S.W .3d 450, 454 (Tex. 2002) (citing Nixon v. Mr. Prop. Mgmt

. Co ., 690 S.W .2d 546, 548-49 (Te x . 1985)).

I n its claim for def

iciency on a sec ured transac tion, National wa s require d to prove that (1) the Emiabatas executed a loan contra ct and secur ity ag ree ment specify ing the collater al, (2) the E m i ab at as defa

ulted on the loan, (3) the Emiabatas failed to repa y the note despite notice and demand from National, (4) National fore closed i t s s ec u ri ty interest in the collater al and sold the collater al in a commerc ially rea sonable manner , and (5) afte r dispositi on of the collater al, a

6defic iency exis ted, repa y ment of which was require d to make the secur ed party whole. See Tex. Bus. & Com. Code Ann. § 9.615 (West 2011); McG ee v. Dee re & Co. , No. 03-04-00222- CV, 2005 WL 670505, at *2 (Tex. App.—Aus t i n M ar . 2 4 , 2005, no pet.) (mem. op.). Be cause the Emiabatas challeng e only whether National met its summary -judg ment burd en reg arding one aspec t of the fifth eleme nt, we will limit our discussion acc ording ly

.

As part of its summary -judg ment evidenc e, Na t i o n al attache d to its motion an aff idavit from its ag ent. The ag ent aver s in the aff idavit that he is competent to testi fy an d h as persona l knowledg e that, amon g sever al other fac ts, “[a]fter all offse ts, cre dits and pay ment have been ap p l i ed , there rema ins owing on the Note[ ] the principal amount of $20,034.91.” This testimony i s s u ff

i cient to support a summary -judg ment motion. See American 10–Minute Oil Ch a n ge , I n c . v . M e tr o p o li tan Nat’l Bank–Farme rs Branch , 783 S.W .2d 598, 601 (Tex. App

. — D a ll a s 1989, no writ) (summary -judg ment aff idavit made on bank vice- president’ s persona l kno wl edge, which identified the note, the principal balanc e, and the interest owed afte r allowing for all offse ts, pay ments and cr edits was not conclusory when no controve rting aff idavit was pre sented to ra ise a fac t issue); see also Texas Commerce Bank, Nat’l Ass’n v. N ew , 3 S

. W

. 3 d 515, 518 (Tex. 1999) (citing American 10-Minute Oil Change , 783 S.W .2d at 601). Acc ording ly , beca use the Emiabatas prese nted no controve rting evidenc e, National was entitled t o s u m mary judgme nt. See M.D. Anderson Hosp. & Tumor Inst. v. W illri ch , 28 S.W .3d 22, 23 (Tex. 2000) (holding that once movant p r o d u c e s c o mp e te n t s u

mm a r y - ju d g me n t e v id e n ce establishing its rig ht to summary judgme nt, b u r d e n shifts to non-movant to raise a g enuine issue of fac t prec luding summa ry judgme nt); American , 783 S.W .2d at 601.

7We overrule the Emiabata s’ fourth issue.

P ost-judgm ent intere st

I n their final issu e, t h e Emiabatas asser t that the district court err ed by awa rding National 13.95% post-judgme nt interest in the summary judgme nt. We disag ree . The district court g rante d summary judgme nt on National’s defic iency judgme nt, which was b as ed o n a brea ch of the loan ag ree ment. The financ e code provides that a judgme nt on a brea ch of con t ra ct claim will ear n post-judgme nt interest at a rate equal to the l esser of t he rate specified i n the con t ra ct o r 18% per y ear . See Tex. Fin. Code Ann. § 304.002 (Wes t 2006). The loan ag ree ment attache d to National’s motion for summary judgme nt stipulates that the interest rate on the Emiabatas’ loan was 13.95%. Thus, the district court wa s require d to awa rd post -judg ment interest at 13.95%. See id. Acc ording ly , we ove rrule the Emiabatas’ fifth issue.

CONCLUSION Having overr

uled the Emiabatas’ i s s ues on appea l, we aff irm the district court’s judgme nt.

__________________________________________ J eff Rose, J ustice Be fore J ustices Pury ear , Rose, and Goodwin Affir med Filed: Oc tober 13, 2011

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