Opinion
05-23-01140-CV
06-12-2024
NICHOLAS D. MOSSER, Appellant v. FLAGSTAR BANK, FSB; SELECT PORTFOLIO SERVICING INC.; FIRST GUARANTY MORTGAGE CORPORATION; AND FEDERAL HOME LOAN MORTGAGE CORPORATION, Appellees
On Appeal from the 471st Judicial District Court Collin County, Texas Trial Court Cause No. 471-04378-2023
Before Justices Reichek, Goldstein, and Kennedy
MEMORANDUM OPINION ON MOTION
NANCY KENNEDY JUSTICE
Appellant's Rule 24.4 motion challenges the trial court's order granting the motion to challenge the sufficiency of the security required to stay an execution of the judgment. In its order, the trial court (1) found that appellant's initial $10 cash deposit was insufficient to stay execution of the court's final judgment and (2) set a bond amount of $38,158.50. Appellant contends that the trial court abused its discretion because its ruling was not based on evidence.
Rule 24.4(a) authorizes an appellate court to review a supersedeas bond for the following purposes: (1) the sufficiency or excessiveness of the amount of security; (2) the sureties on a bond; (3) the type of security; (4) the determination of whether to permit suspension of enforcement; and (5) the trial court's exercise of discretion in ordering the amount and type of security. TEX. R. APP. P. 24.4(a). The grounds for review may be based both on conditions as they existed at the time the trial court signed the order and on changes in those conditions afterward. TEX. R. APP. P. 24.4(b); G.M. Houser, Inc. v. Rodgers, 204 S.W.3d 836, 840 (Tex. App.- Dallas 2006, no pet.). Following its review, an appellate court may require that the amount of a bond be increased or decreased and that another bond be provided and approved by the trial court clerk. TEX. R. APP. P. 24.4(d). It may also require other changes in the trial court's order. Id.
After reviewing the Rule 24.4 motion, appellees' response, and the reply, we conclude that appellant has not shown entitlement to the relief requested. Although appellant contends that appellees did not support their motion with evidence, the record shows that their motion incorporated by reference a copy of the Texas Home Equity Note already filed in the court, which established the amount of appellant's monthly mortgage payment. In its order, the trial court took judicial notice of this evidence. Because this evidence supports the trial court's ruling, we deny the motion.