                                  NO. 07-02-0478-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL A

                                    JULY 15, 2005

                          ______________________________


               CONSECO FINANCE SERVICING CORP. F/K/A,
        GREEN TREE FINANCIAL SERVICING CORPORATION, APPELLANT

                                         V.

                  ELIPIDIO CABRERA, HERIBERTHA CABRERA AND
                     ALL UNKNOWN OCCUPANTS, APPELLEES


                        _________________________________

              FROM THE 287TH DISTRICT COURT OF BAILEY COUNTY;

                NO. 7736; HONORABLE GORDON H. GREEN, JUDGE

                          _______________________________


Before REAVIS and CAMPBELL and HANCOCK, JJ.

                                      OPINION

       Presenting one issue, Conseco Finance Servicing Corporation f/k/a Green Tree

Financial Servicing Corporation (Conseco) contends the trial court erred by denying

Conseco possession of a manufactured home which secured the contract. Based on the

following rationale, we affirm.
        On April 2, 1998, Elipidio Cabrera and Heribertha Cabrera signed a Manufactured

Home Retail Installment Contract and Security Agreement in the principal amount of

$21,426.85 to purchase a 1998 Clayton Manufactured Home. Upon default in the payment

of monthly installments per the contract, Conseco filed suit on the contract seeking

foreclosure of its security interest and attorney’s fees. When the Cabreras did not file an

answer or appear, Conseco filed a written motion for default judgment for the balance

owing per the contract and attorney’s fees. In addition, by paragraph six of its motion,

Conseco requested the following:


        this Court order the Sheriff or Constable of the County where that certain
        1998 Clayton Manufactured Home; Serial No. CBH005584TX (the
        “manufactured home”) is located to attach the Manufactured Home and
        deliver possession of the Manufactured Home to Conseco with any
        subsequent sale of the Manufactured Home to be applied to the judgment or
        alternatively, that the Sheriff or Constable of the County where the
        Manufactured Home is located, attach the Manufactured Home, sell it and
        apply any proceeds to Conseco’s judgment.


(Emphasis added).1 The trial court signed the default judgment submitted by counsel for

Conseco on August 30, 2002, that, among other things, recited that Conseco was allowed



        1
           From the record, it app ears that appellant’s cou nsel prepared the proposed judg ment and m ailed it
to the trial court. As material here, Conseco proposed that the judgment also provide:

                 It is further ordered, adjudged and decreed that the Sheriff or Constable of the
        Co unty where that certain 1998 Clayton Manufactured Home; Serial No. CBH005584TX (the
        “Manufactured Home”) is located shall attach the Manufactured Home and take any an d all
        steps necessary to deliver possession of the Manufactured Home to Conseco with the
        proceeds from any subsequent sa le of the Manufactured Home to be applied to the judgment
        or alternatively, that the Sheriff or Constable of the County where the Manufactured Home
        is located, attach the Manufactured Home, sell it, and apply the proceeds to C onseco’s
        judgme nt.

However, the trial court struck the requested provision.

                                                       2
such writs and processes as may be necessary to the enforcement and collection of the

judgment. However the trial court did not award Conseco any attorney’s fees and costs as

to the Unknown Occupant(s) and declined to expressly order that the Sheriff or Constable

attach the manufactured home and deliver it to Conseco. A reporter’s record has not been

provided.2


       By its sole issue, Conseco contends the trial court erred by denying it possession

of the manufactured home which secures the contract. We disagree.


       We commence our analysis by noting that Conseco decided to proceed via judicial

foreclosure as authorized by section 9.601 of the Business and Commerce Code as

opposed to proceeding with nonjudicial enforcement proceedings authorized by the

contract and section 9.609. See Tex. Bus. & Com. Code Ann. §§ 9.601(a)(1), 9.609

(Vernon 2002). Although Conseco’s pleadings sought an attachment of the manufactured

home, because it did not file an application for the issuance of a writ of attachment and

order per Rule 592 of the Rules of Civil Procedure or offer to provide a bond as required

by Rule 592a and section 61.023 of the Civil Practice and Remedies Code, Conseco was

not entitled to a writ of attachment.3 See Tex. Civ. Prac. & Rem. Code Ann. § 61.023

(Vernon 1997). However, having reduced its claim to judgment as authorized by section



       2
         Because the judgment was rendered as a default, we assume that no evidence, argument, or
objections were m ade when the m otion for default judgm ent w as cons idered by the trial co urt.

       3
         Conseco’s motion did not seek an order of sale as authorized by Rule 309 of the Rules of Civil
Proced ure.

                                                  3
9.601(e) of the Business and Commerce Code, Conseco is entitled to request that the clerk

issue an execution per Rules 621 and 631 of the Rules of Civil Procedure for the sale of

the manufactured home as opposed to a writ of attachment. See Tex. Bus. & Com. Code

Ann. § 9.601(e).


        Moreover, page two of the judgment provides in part:


             THE COURT FURTHER FINDS that Plaintiff is entitled to possession
      of the Manufactured Home which is the subject of this suit with the proceeds
      from the sale of the Manufactured Home to be applied to the Judgment
      Amount.


Then, on page three, the judgment concludes:


             Plaintiff is allowed such writs and processes as may be necessary in
      the enforcement and collection of this judgment.


In addition to its right to request the clerk to issue an execution, as the owner of the

judgment, Conseco is entitled to seek the court’s assistance to obtain satisfaction on the

judgment as authorized by section 31.002 of the Civil Practice and Remedies Code

Annotated. See Tex. Civ. Prac. & Rem. Code Ann. § 31.002 (Vernon Supp. 2004-05).

Conseco’s sole issue is overruled.


      Accordingly, the judgment of the trial court is affirmed.



                                                Don H. Reavis
                                                  Justice

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