Motion Granted; Vacated and Case Dismissed and Memorandum Opinion
filed July 31, 2014.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00707-CV

                       DON E. KILPATRICK, Appellant
                                         V.

                      ADRIANA POTOCZNIAK, Appellee

             On Appeal from the County Civil Court at Law No. 4
                           Harris County, Texas
                      Trial Court Cause No. 1033021

                 MEMORANDUM                      OPINION


      This is an appeal of a judgment in favor of appellee, Adriana Potoczniak,
and against appellant, Don E. Kilpatrick, in a forcible detainer action brought by
appellee to regain possession of premises occupied by appellant. Appellant raises
five issues on appeal in which he argues the judgment is void because the forcible
detainer action was brought while his bankruptcy stay was pending. Appellee filed
a motion to dismiss for want of jurisdiction in which she agrees that the trial court
lacked subject-matter jurisdiction because the underlying forcible detainer action
was commenced in violation of the automatic stay required by the bankruptcy
code. See 11 U.S.C. § 362(a)(1). Because the automatic bankruptcy stay applied to
appellee’s forcible detainer action, we grant appellee’s motion, vacate the county
court’s judgment as void, and dismiss appellee’s forcible detainer action for want
of jurisdiction.

                    FACTUAL AND PROCEDURAL BACKGROUND

      On February 21, 2013, appellant filed a voluntary petition for Chapter 13
bankruptcy in the United States Bankruptcy Court for the Southern District of
Texas. On April 3, 2013, appellant received written notice to vacate the premises.
On April 8, 2013, appellee filed an original petition for eviction in the Justice
Court of Harris County. Appellant was served with the eviction suit on April 22,
2013. On May 21, 2013, the bankruptcy proceeding was dismissed.

      On May 31, 2013 the forcible detainer suit was tried in Justice Court.
Appellant appealed the Justice Court’s decision, and the suit was tried de novo in
the County Civil Court at Law No. 4 in Harris County on July 25, 2013. Appellant
appeals that court’s judgment of possession in favor of appellee.

                      APPLICABILITY OF BANKRUPTCY STAY

      On July 7, 2014, appellee filed a motion to dismiss this appeal for want of
jurisdiction on the grounds that the forcible detainer was commenced in violation
of the automatic bankruptcy stay. We agree.

      When a defendant files a bankruptcy petition, an automatic stay goes into
effect and abates judicial proceedings against that party. In re Southwestern Bell
Tel. Co., 35 S.W.3d 602, 604 (Tex. 2000). Specifically, the Bankruptcy Code
provides that the filing of a bankruptcy petition operates as a stay of the following:

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      the commencement or continuation, including the issuance or
      employment of process, of a judicial administrative, or other action or
      proceeding against the debtor that was or could have been commenced
      before the commencement of the case under this title, or to recover a
      claim against the debtor that arose before the commencement of the
      case under this title.

11 U.S.C. § 362(a)(1).

      If a party who has not sought relief from the bankruptcy stay attempts to
commence or continue a lawsuit against a debtor, the action taken is void. See Kalb
v. Feuerstein, 308 U.S. 433, 439 (1940); Howell v. Thompson, 839 S.W.2d 92, 92
(Tex. 1992); Paine v. Sealy, 956 S.W.2d 803, 805 (Tex. App.—Houston [14th
Dist.] 1997, no writ). The Supreme Court of Texas has held that an action taken in
violation of the automatic stay is void, not merely voidable. See Howell, 839
S.W.2d at 92; Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499,
501 (Tex. 1988); Sommers v. Concepcion, 20 S.W.3d 27, 34 (Tex. App.—Houston
[14th Dist.] 2000, pet. denied).

      The stay applies to any action taken against the debtor to obtain possession
of property of the debtor’s bankruptcy estate or of property from the bankruptcy
estate or to exercise control over property of the bankruptcy estate. 11 U.S.C. §
362(a)(3). Whether a proceeding is “against the debtor” within the meaning of
section 362(a)(1) is determined from an examination of the posture of the case at
the initial proceeding. Marroquin v. D & N Funding, Inc., 943 S.W.2d 112, 115
(Tex. App.—Corpus Christi 1997, no writ); Lovall v. Chao, No. 01-02-01019-CV;
2005 WL 110372 *2 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (mem. op.).

      In this case, appellant was in possession of the premises when the
bankruptcy petition was filed. The forcible detainer action was filed in violation of
the automatic bankruptcy stay. The Bankruptcy Court did not modify the stay or


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otherwise permit the forcible detainer suit to be commenced or continued.
Therefore, we conclude the bankruptcy court’s automatic stay deprived the Justice
Court of jurisdiction over appellee’s forcible detainer action. Because the
automatic bankruptcy stay applied to appellee’s forcible detainer action, neither the
Justice Court nor the County Court had jurisdiction over the forcible detainer
action. See Paine, 956 S.W.2d at 805. Thus, we hold that the County Court’s
judgment is void. See York v. State, 373 S.W.3d 32, 39 (Tex. 2012). When a trial
court’s void judgment is appealed, we have jurisdiction to declare the judgment
void and render judgment dismissing the case. Perkins v. U.S. Fid. & Guar. Co.,
299 S.W. 213, 219 (Tex. Comm’n App. 1927, judgm’t adopted); see also Pearson
v. State, 315 S.W.2d 935, 938 (Tex. 1958); Williams v. Steele, 108 S.W. 155, 157
(Tex. 1908).

                                    CONCLUSION

      We vacate the County Court’s judgment as void, grant appellee’s motion,
and dismiss the forcible detainer action for want of jurisdiction.

                                              PER CURIAM



Panel consists of Justices Boyce, Busby, and Wise.




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