United States Court of Appeals

for the Fifth Circuit

No. 21-11251

U.S. Bank National Association, as Trustee, successor 

in interest to Bank of America, National Association, 

as Trustee, successor by merger to LaSalle Bank 

National Association, as Trustee, for Residential 

Asset Mortgage Products, INC., Mortgage AssetBacked Pass-Through Certificates, Series 2007-R, 

Plaintiff—Appellee, 

versus

Kevin G. Bates; Regina Bates, 

Defendants—Appellants. 

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:20-cv-965

Before Jones, Southwick, and Ho, Circuit Judges.

Per Curiam:*

This appeal arises out of a mortgage foreclosure suit, in which the 

Plaintiff creditor successfully sought summary judgement against a 

* This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals

Fifth Circuit

FILED

January 16, 2023

Lyle W. Cayce

Clerk

Case: 21-11251 Document: 00516611530 Page: 1 Date Filed: 01/16/2023
No. 21-11251

2

Defendant debtor. Because the appeal has been rendered moot by Plaintiff’s 

sale of the property in question, we dismiss the appeal. 

I.

On or around October 25, 2000, Defendant Kevin Bates obtained a 

mortgage loan by executing a Texas Home Equity Adjustable Rate Note. The 

Note was secured by a Texas Home Equity Security Instrument, signed by 

both Defendants, which encumbered the property located at 1012 South 

Hollow Drive, Southlake, Texas 76092 (“the Property”). 

On July 24, 2020, Plaintiff’s mortgage servicer notified Defendants 

that they were in default. Plaintiff filed suit against Defendants seeking 

judicial foreclosure. Plaintiff sought and the district court granted summary 

judgment, which Defendants now appeal. 

After noticing this appeal, Defendants filed a motion in the district 

court asking the court to set a bond to stay the upcoming scheduled sale of 

the Property by the Plaintiff. See Fed. R. Civ. P. 62(b). The district court 

issued an order requiring Defendants to post a $387,000 bond—worth about 

one-third of the outstanding debt—to obtain a stay of the court’s judgment. 

Defendants did not post the bond. Subsequently, Defendants sought an 

emergency stay in this court, which we denied. See Fed. R. App. Proc. 8.

Following these proceedings, Plaintiff scheduled a foreclosure sale of 

the Property for June 7, 2022. That morning, Defendants filed a Notice of 

Lis Pendens. Plaintiff subsequently conducted the sale and sold the property 

to a third party. 

Plaintiff has now filed a motion in this court to dismiss the appeal as 

moot because of the sale, which Defendants oppose. In its reply, Plaintiff also 

moved to cancel or expunge the lis pendens. Defendants moved for leave to 

file a sur-reply to Plaintiff’s motion, which Plaintiff opposes. 

Case: 21-11251 Document: 00516611530 Page: 2 Date Filed: 01/16/2023
No. 21-11251

3

II.

“Ordinarily, an appeal will be moot when the property underlying the 

dispute has been sold at a foreclosure sale because this court cannot fashion 

adequate relief, i.e., cannot reverse the transaction.” Christopher Vill., Ltd. 

P’ship v. Retsinas, 190 F.3d 310, 314 (5th Cir. 1999). “If the debtor fails to 

obtain a stay, and if the property is sold in the interim, the . . . court will 

ordinarily be unable to grant any relief” and “the appeal will be moot.” 

Matter of Sullivan Cent. Plaza, I, Ltd., 914 F.2d 731, 733 (5th Cir. 1990), on 

reh’g sub nom. Matter of Sullivan Cent. Plaza I, Ltd., 935 F.2d 723 (5th Cir. 

1991). Both sides acknowledge this baseline rule. 

Nevertheless, Defendants contend that their lis pendens filing means 

that relief may be granted with regards to the subsequent purchaser’s title to 

the Property—and that the appeal is not moot. But by its plain terms, the lis 

pendens statute makes clear that the procedure is available only to “a party 

to the action who is seeking affirmative relief.” Tex. Prop. Code § 

12.007(a). See also In re Jamail, 156 S.W.3d 104, 107 (Tex. App. 2004); 

Brown v. Martin, 2011 WL 3366359, at *2 (Tex. App. Aug. 4, 2011). Here, 

neither the Defendants’ original Answer nor their operative First Amended 

Answer offer any basis on which they seek affirmative relief in this suit. 

Consequently, the lis pendens filed by Defendants is “void.” Helmsley-Spear 

of Texas, Inc. v. Blanton, 699 S.W.2d 643, 645 (Tex. App. 1985). And 

“[w]hen a lis pendens is not authorized under Texas law, the court need not 

follow the procedures prescribed by [the statute] to cancel it.” Matter of 

Texas Extrusion Corp., 844 F.2d 1142, 1153 (5th Cir. 1988).

III.

We grant Plaintiff’s motion to dismiss the appeal as moot. We also 

grant Plaintiff’s motion to cancel the lis pendens. We deny Defendant’s

motion for leave to file a sur-reply.

Case: 21-11251 Document: 00516611530 Page: 3 Date Filed: 01/16/2023