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 [1st 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 [1st 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.