### 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. 03-11-00271- CV

Dessie M aria Andrews an d Brian P aul Hu nt, Appellan ts

v. Deutsche Bank National T rust Co., as Indenture Trustee U nder the Indenture Relating to IMH Assets C orp., Collater alized Asset- Backed Bon ds, S erie s 2004-1, Inc., Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 353 RD JUDICI AL DISTRICT NO. D-1 -GN-0 5-0 0295 1, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

Dessie Maria Andre ws and Br ian Paul Hunt, both pro se, purport to ap p ea l a fi nal
summary judgme nt aw ar ding relief, including tit le t o a residential lot, to Deutsche Ba nk National Trust Co., as I ndenture Trustee Under the I ndenture Relating to I MH Assets Corp., Collateralized Asset-B acke d Bonds, Series 2004-1, I nc. We will dismiss th e appea l for want of subject-matter jurisdiction.
I n November 2003, David and J amie McKe nzie purcha sed a residential lo t in Spicewood, fina

ncing the purc hase w ith a loan sec ured by a dee d of trust and ve ndor’s lien on the
proper ty in favor of Deutsche Ba nk’s prede cessor . The McKe nzies subsequently defa ulted on their loan obliga

tions and also beca

me delinquent in pay

ing proper

ty taxes. As fore closure of the proper ty loomed, the McKe nzies purported to enter into a transfe r tax lien loan ag ree ment with Andre ws, who paid the de linquent tax es in exchang e for a lien on the proper

ty in the amount of $11,957.07. Then Andre ws ostensib l y fo reclosed on the tax lien and appointed Hunt as “substitute trustee” toconduct a nonjudicial fore closure sale. Hunt alleg edly conducte d the sale on October 4, 2005, and 1 the proper ty was convey ed to an entity called Cornerstone L imited. The following month, Andre ws, acting for Corne rstone, purpor ted to sell the proper

ty to Kerr y Cairns. As these events unfolded, Deutsche Ba nk’s prede cessor s, and later Deutsche Ba nk,
soug ht judicial relief decla ring invalid the fore closure sale conducte d by Hunt, fore closing on the vendor’ s lien, and awa rding it title and posses s i o n o f t he proper ty

. Eventually , responding to what the rec ord ref

lects wer e persistent re fu s als by Andre ws and Hunt to respond to discovery , Deutsche Ba

nk soug ht, and the district court gra nted, “de ath pena lty ” sanc tions deeming as found fac ts that established the invalidity o f t h e t ax lien fore closure sale. Ba sed in part on the deeme d 2

W e note that this was the same date on which Andre ws and Hunt eng ag ed in th e 1 fore closure “sale ” at is s u e in Hunt v. CIT Grp./Consumer Fin., Inc. , No. 03-09-00046- CV, 2010 Tex. App. L EXI S 2767 (Tex. App.—Austin Apr. 15, 2010, pet. denied) (mem. op.). The district cour

t deemed the following fac ts to be established: 2

a. Def

endants failed t o p ro v i d e p ro p er n o t i ce o f t h ei r p u rp o rted fore closure sale of 22036 Br iarc liff Drive, Spicewood Travis County , Texas 78669 (her eaf

ter “Property ”), conducted on October 4, 2005, as re quired by

Texas statute; b. Def

endants did not post, or ca use to be posted, notice s at the Tra vis County courthouse rela ting to the tax lien deed of trust, appointment of substitute trustee, and/or ta x sale involving the Property ;

c. Def

endants did no t co m m unicate orally or in writing with Financ e Am eric a, L L C, or any succe ssor in interest there to, reg arding t h e Property and/or any purported fore closure sale conducted or to be conducte d by

Def endants; d. De fe n d an t s d i d n o t re ce i v e any proce eds from t h e p u rp o rt ed fore closure sa le of the Prope rty on October

4, 2005; and

2finding s, Deutsche Ba nk moved for summary judgme nt on its claims for relief. The dist rict court
g rante d Deutsche Ba

nk’s reque sted relief except to the extent of holding that Deutsche Ba nk’s title and interest in the proper

ty was encumbe red by a tax lien in the amount of $11,957.07, plus interest, in favor of

Andre ws. Both Andre ws and Hunt appea l. Howeve r, the rec ord establishes t h at we lack subject-matter

jurisdiction over both appe als. Deutsche Ba

n k re fe rs us to the repor ter’s rec ord from a post-judgme nt hear ing ref lecting that Andre ws, afte r filing her notice of appea l, enter ed into a Rule 11 ag ree ment to dismiss her appea l. After the summary judgme nt was signe d, Deutsche Ba nk, desiring to pay Andre ws the amount require d to relea se the lien on its proper ty but encounter ing r esistance from her , moved to
pay the amount instead i nto the court’s reg istry

. A hearing was he ld on Deutsche Ba nk’s m otion, and the r eporte r’s re cord r efle cts the following exchang e:

THE COURT: So, either y ou rele ase—I mean, it’s as simple as that. You either wait for the a ppeals c ourt to g o throug h— MS. ANDREWS : I

can r elea se my

portion of the—of the appea ls court, y es. THE COURT: You’ll re lease , what? I ’m sorry ? MS. ANDREWS : I

can—I can— THE COURT: Release the lien?

e. Def

endants failed to co m p l y wi t h § 51.002 of the Texas Property Code, and Chapter 33 of the T ex as Tax Code in conducting their purported f

orec losure sale of the Proper ty on October

4, 2005[.] See also Hunt v. MERS, Inc. , 03-10-00031- CV, 2010 T ex . Ap p . L EXI S 6812 at *1-3 (Tex. App.—Austin Aug

. 20, 2010, no pet.) (mem. op.) (dismissing attempted interlocutory appea l from this order)

. 3MS. ANDREWS : Yes, and g ive up my —my appea l, y es. THE COURT: Okay . Sounds li ke we have a winner. MR. HOPKI

NS [Deutsche Ba

nk’s counsel]: I s Ms. Andre ws, in this court, repr esenting rig ht now she is g oing to dismiss her appea l with the T h ird Court of Appea ls? MS. ANDREWS: My appea l I will dismiss in—in e x chang e for a—a rele ase of my lien.

. . . . THE C OU R T : Okay

. The ag ree ment is, so I understand, that she will nonsuit the appea l, or whatever y ou call it in appea l l an d , and she will rele ase the lien that she has on this proper

ty , so there ’s no lien. So y our lien will not—no longe r be g ood in return f or the re lease of the money that’s in the cour

t rig ht now. MS. ANDREWS : Yes. THE COURT: Okay

. MR. KEL L Y [counsel who re prese nted Andre ws at the time] : T hat’s corr ect, Your Honor.
THE COURT: Okay

. So, what I ’d like y ou to do is to g ive me a proposed order that y ’all come to an ag ree ment with a s i gn ed release, and that way we have a rele ase, and we’ll g o ahea d and release the funds to Ms. Andre ws and y ’all can nonsuit the appea l.

. . . . THE COURT: He’ s willing—okay

. There ’s some outstanding—Mr

. Ho p kins is repr esenting to th e C o u rt that there ’s some outstanding sanctions ag ainst Ms. Andre ws and some may be—we ll, y ou can’ t waive any thing—the court costs or transcr ipts or any

thing like that. But he’s willing t o wa i v e— an d I don’t know the amount of t hat, and y ’all can t alk about it—but he’s willi ng to waive that in return for waiving whateve r interest is not within the reg istry of the court. So the ag ree ment will be that s h e get s 1 8 the 24,000 and chang e, and that’s it, no more interest, and they don’t take of

f the sanc tions. MR. HOPKI

NS: And, Your Honor, if

I

— THE COURT: Hold on. 4MR. KEL L Y: My client will consent to that.
THE COURT: Okay

. So it looks like we have an ag ree ment. I will let y ’all prepa re the pape rs.

A Rule 11 ag ree ment is an ag ree ment betwee n parties or attorney s “touching any pending suit” that, to be enfor cea

ble, must be either ( 1) in writing , signe d, and filed a s part of the rec ord, or (2) made in open co u rt and enter ed of rec ord. Tex. R. Civ. P. 11. Whether a Rule 11 ag ree ment is leg ally enfor cea ble is a question of law. Ronin v. L er ner , 7 S.W .3d 883, 886 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The purpose of Rule 11 is to avoid misunderstanding s and controve rsies that often flow from o ra l agr eeme nts. Padilla v. LaFrance , 907 S.W .2d 454, 460 (Tex. 1995). Parties may enter into a binding settlement ag ree ment even if they contemplate that a more formal document memorializing the ag ree ment will be executed at a later date. See Ronin , 7 S.W .3d at 886; McLendon v. McLendon , 847 S.W .2d 601, 606-07 (Tex. App.—Dallas 1992, writ denied) (“[Party ] understood that he was obliga ted to execute documents to implem en t t h e ag ree ment being submitt ed to the court. The re is no indication in the rec ord that the parties contemplated that their
ag ree ment would not be binding until it was reduc ed to writing .”). The exchang e betwee n Andre ws, her attorney , Deutsche Ba nk’s attorney , an d t he district court constitutes an enfor cea ble Rule 11
ag ree ment. Although the parties contemplated that the attorney s would later reduc e the Rule 11
ag ree ment to writing , the repor ter’s rec ord re fl ec t s t hat the parties wer e awa re that they wer e
enter ing into a settlement ag ree ment in court. See McLendon , 847 S.W .2d at 606-07. Specifica lly , both Andre ws and her counsel ag ree d that she would rele ase her lien and d i s m i s s h er appea l in exchang e for

rec eiving the money

from the c ourt reg istry

.

5Andre ws does not dispute that she rea ched a s ett lement ag ree ment in open court

in compliance with Rule 11. I nstead, she asser ts that there is no evidenc e that she ever rec eived any money from the court reg istry , the c o n s i d er at ion for her di smissal of her appea l. To the contrary , howeve r, the re cord c ontains an orde r commanding the district court c lerk to w ithdraw the mone y from the c ourt reg istry

and pay it to Andrews’s a ttorney . I t then states:

I n exchang e for, and contempora neous with the execution of this order , Andre ws is order ed to execute a Release of L ien reg arding Travis County Real Property Records Document No. 2005131594 and any rene wal, extension and/or assig nment there of.
I T I S F URTHER ORDERED, and ba sed upon the ag ree ment of the parties, that all past awa

rd(s) of monetary sanctions awa rded to Plaintiff in this cause ag ainst Andre ws are rele ased.
I T I S FURTHE R ORDERED, and based u p o n t he ag ree ment of the parties, that Andre ws is to fully cooper ate with Plaintiff reg arding the immediate dismiss al of Andre ws [si c] claims pending in Cause No. 0 3 -1 1 -0 0 2 71-CV befor e The Court of Appea ls for the Third District of Texas, including but not limit ed to filing an Ag ree d M o t i on to Dismiss with the Appellate Court, as such claims are now moo t gi v en Andre ws’ elec tion to rece ive the benef its the Marc h 21, 2011 judgme nt g rante d her.

I n light of this orde r and the other facts we have summarized, we hold that the di spute underly ing Andre ws’s appe al has be en settled a nd is moot. C onsequently , we dismiss Andrews’ s appea l. 3
W e l i kewise lack subject-matter jurisdiction over Hunt’s appea l. The relief Hunt seeks on appea l is the reversa l of the district court’ s summary judgme nt and a decla ration t hat t he
tax lien transfe r is valid. He asser ts that Deutsche Ba

nk’s claims are “bar

red by the applicable statute of limit ations,” barr ed by “the fac t that MERS/ Deutsche failed to deposit funds into the reg istry of

Andre ws has filed a motion asking this Court to take notice of cer tain “adjudicative fac ts,” 3 including her assert i o n that Deutsche Ba nk has transfe rre d the proper ty to a differ ent owner . We dismiss this mot ion as moot. 6the trial court pursuant to Section 34.08(a) of Tax Code,” and “bar red by waiver or estoppel.” Although Hu n t purportedly acte d as a substitut e trustee and aided Andre ws in transfe rring the
proper ty from the McKe nzies to Cornerstone L imited, he has at no time cl aim ed to have an

owner ship or other interest in the proper ty that is the subject of the relief he seeks. L ikewise, while Hunt alludes to the desire to seek rec onsideration of unspecifie d “dama g es” (possibly a ref ere nce to various discovery -re lated sanctions imposed ag ainst him) in the event of a rema nd, Hunt does 4
not prese nt arg ument or authorities challeng ing those awa rds or explain h ow he would have any

concr ete, leg ally cog nizable interest in the summary judgme nt he seeks to challeng e, nor can

we discern any . See W

illiams v. Lara , 52 S.W .3d 171, 184 (Tex. 2001); Texas Ass’n of Bus. v. Texas Air Control Bd. , 852 S.W .2d 440, 443-46 (Tex. 1993). Acc ording ly , we dismiss Hunt’s appea l for want of subjec t-matter jurisdiction.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Dismissed for Want of Subject-Matter J urisdiction Filed: May

3, 2012

The district court awa

rded Deut s che Ba

nk $500.00 from Hunt in connec tion with 4 proce eding s on its motion to compel response s to reque sts for disclosure and production, as well as $1,000.00, imposed jointly and sever ally ag ainst Andre ws an d Hunt, for its expenses incurre d in connec tion with a motion for contempt and sanc tions. 7