DEBTOR-CREDITOR LAW

FALL 2011

Genesis Tax Loan Services, Inc. v. Kothman, 339 S.W.3d 104 (Tex. 2011)

Transfer of Tax Lien: This case discussed several aspects regarding the validity of the transfer of a tax lien under the Tex. Tax Code Ann. § 32.06 and provided a rationale for validating aspects of a transfer that otherwise may appear to not be in compliance with the statute.

Bahar v. Lyon Financial Services, Inc., 330 S.W.3d 379 (Tex. App.—Austin 2010)

Turnover Order: Finality and Time for Appeal: A turnover order under Tex. Civ. Prac. & Rem. Code Ann. § 31.002 et seq., including a post-judgment appointment of a receiver pursuant to the turnover order, was a final, appealable order (although other orders and writs in aid of execution are generally not appealable) because it acted as a mandatory injunction. As such, the turnover order was subject to the deadlines for perfecting an appeal under the Texas Rules of Appellate Procedure. While an amended turnover order rendered the original turnover order a nullity, the court could not exercise jurisdiction over that portion of the amended order that was contained in the original turnover order that was subject to appeal, but which was not timely appealed.

SLT Dealer Group v. Americredit Financial, 336 S.W.3d 822 (Tex. App.—Houston [1^st Dist] 2011)

Third Party Statutory Lien Claimant: When a third party statutory lien claimant claimed priority over a consensual security interest under Tex. Bus. & Comm. Code Ann. § 9.101 et seq., the consensual secured creditor could not be held liable under Tex. Bus. & Comm. Code Ann. § 9.610(b) for failure to dispose of the collateral in a commercially reasonable manner, given that the consensual secured creditor never took possession of the collateral and did not dispose of the collateral, either of which actions were necessary to trigger the requirements of § 9.610(b).

Haden v. David J. Sacks, P.C., 332 S.W.3d 523 (Tex. App.—Houston [1^st Dist] 2009)

Turnover Order – Bankruptcy – Attorney Fees: A turnover order was obtained pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 31.002 et seq. and the debtor subsequently sought bankruptcy relief. The judgment creditor could pursue an award of attorney’s fees and costs under the statute on the theory that the bankruptcy court was a “court of appropriate jurisdiction” under § 31.002(a). The Court held that the judgment creditor, in seeking the assistance of bankruptcy counsel to dismiss the judgment debtor’s bankruptcy proceeding (which had stayed creditor action), facilitated the release of non-exempt property which the judgment creditor could pursue once the property was released from the automatic stay upon the dismissal of the case.