SE Texas Record

Thursday, October 17, 2019

Residents lose appeal against Fifth Third Bank after they fail to show for lower court proceedings

State Court

By Charmaine Little | Sep 18, 2019


Justice Ken Wise

HOUSTON -- A group of residents has lost its appeal in a foreclosure case against them after they failed to appear in trial court.

The Texas 14th Court of Appeals sided with Fifth Third Bank and denied the motion to dismiss the chargers filed by appellants Mark Anthony Fornesa, Judith Thanh Fornesa, Ricardo Foresna, Jr., and Cynthia Fornesa.

The Fort Bend County District Court already had ruled against the Fornesas and Thanh for Fifth Third’s foreclosure case against them, concerning 642 Moreland Lane in Rosenberg. It also awarded the bank the property in question. The appeals court noted that Ricardo, who is not a lawyer, filed a notice of appeal for the rest of the defendants.

But the appeals court said, “We first note that as a non-lawyer, Ricardo had no authority to sign the notice of appeal from the justice court on behalf of Mark Anthony, Judy Thanh, and Cynthia.”

On top of that, Mark Anthony, Thanh, and Cynthia were absent during the trial in the county court. Considering this, the appeals court ruled, they forfeited their chance to take issue with the lower court’s ruling, unless there was a fundamental error or an issue with how much evidence was presented. The appeals court said neither of issues are at play in the case.

Although the appellants’ briefs are filled with complaints of a possible error that was not taken up in the county court and even reference documents from the clerk’s record, instead of exhibits submitted into evidence, the appeals court said this is not sufficient to prove the lower court did something wrong.

The appeals panel reiterated, “We are an appellate court, not a trial court. We cannot reverse a trial court’s judgment unless, a) we conclude the trial court made an error of law, and b) we conclude that the error complained of probably caused the rendition of an improper judgment.

The appeals court also pointed out that the appellants’ issue was with the title of the residence, a matter the appeals court cannot rule on in an eviction lawsuit.

Appellate justices Ken Wise, Jerry Zimmerer and Charles A. Spain ruled on the case.

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