Preview
NO. 18-DCV-258221
CITY OF ROSENBERG § IN THE 240th DISTRICT COURT
VS. § IN AND FOR
KEVIN CHRIS LUDWIG § FORT BEND COUNTY, TEXAS
PLAINTIFF’S MOTION TO SET ASIDE AND VOID
TAX FORECLOSURE SALE AND PETITION TO VACATE JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT
NOW COMES, CITY OF ROSENBERG, hereinafter called Movant, for that entity and
would show the Court as follows:
I
The Movant filed a Tax Suit under Cause No. 18-DCV-2582210n December 31, 2018.
Intervenors were Fort Bend County, Fort Bend County Drainage District, Fort Bend County
General Fund, and Lamar Consolidated Independent School District on property identified as
Fort Bend tax account R17851/ 8890000020080901 and having the following legal description:
“Being Lot No. 8 in Block No. 2. of the Tobola Subdivision of' 16.8 acres, being out of
the West end of Lot No. Two (2) in the Donley Subdivision in the James Lowery 1/3
League, Abstract 275, in Fort Bend County, Texas, according to the plat made by
Charles Schultz, said plat being shown of record in Vol. 296, Page 502 of the Deed
Records of Fort Bend County, Texas, to which reference is here made for further
description.”
The Judgment was signed by the District Court on August 25, 2022. The Fort Bend County
Constable sold the property at tax sale on December 6, 2022. The high bid of Seventy Thousand
Dollars ($70,000.00) was accepted from bidder FINNA FAIL, L.P.
Subsequently, a Constable’s Deed was issued to FINNA FAIL, L,P, 1621- Pelican Beach,
Houston, Texas 77044 and recorded in the Deed Records of Harris County, Texas on March 17,
2023 under Clerk’s File no. 2023023809.
I.
REQUIRED STATEMENT OF THE EVIDENCE
WAS NOT SIGNED AND ENTRED BY THE COURT
Defendant Kevin Chris Ludwig is deceased. At the time this tax suit was filed there was
no probate or affidavit of heirship regarding any possible heirs of Mr. Ludwig. Mr. Ludwig was
served by means of citation by posting and service as provided by Rule 117A ofthe TEXAS
RULES OF CIVIL PROCEDURE. The court appointed attorney ad litem John Vong who filed an
answer for Mr. Ludwig. It is believed that the attorney ad litem appeared at the trial and offered
testimony regarding his findings and fee in this case. However the court’s record does not reflect
this. Mr. Vong was paid an attorney ad litem of $2,891.11 from the sale proceeds.
Prior to trial, Movant filed a proposed Statement of the Evidence signed by its counsel
and counsel for the intervenor, but it was not signed and entered by the court during the trial.
Pursuant to Tex. R. Civ. P. 244, a Statement of the Evidence approved and signed by the court is
required to be filed with the case. The failure to sign the Statementof Evidence is a reversible
error. See Montgomery v. R.E.C. Interests, Inc., 130 8.W.3d 444, 447 (Tex. App.—Texarkana
2004, no pet.) Tax sale buyer Finna Fail, L.P. requested that the sale be voided.
Ill.
PETITION TO VACATE
A taxing unit may file a petition to vacate judgment for failing to join a party needed for
just adjudication. Ifthe petition is granted, the delinquent tax suit is revived, pursuant to TEXAS
Tax CODE §33.56(e), allowing the plaintiffto add the necessary parties and set a new trial date.
The owners of record were Otto J. Ludwig and Meta Ludwig. Ms. Ludwig died in 1989.
Mr. Ludwig died in 2008. His will was probate under cause number 08-CPR-021253 and named
Kevin Chris Ludwig as his heir. Kevin Ludwig was served in this cause but passed away before
a judgment was signed. A probate case was not filed for him and an affidavit of heirship was not
filed for him until July 2023. The affidavit shows that Defendant Kevin Chris Ludwig passed
away without leaving a spouse or children, but he has numerous intestate heirs through his
deceased parents’ lineages. These individuals may have a claim to the property and any excess
proceeds from its sale.
Mrs. Ludwig should have been a party to the judgment because there was not a probate
case for her. The heirship affidavits that have now been filed show that her heirs would have
been her son and husband—but the affidavits also show that there are a number of heirs who
were not in the judgment. A judgment can be vacated for failure to join a necessary party. See
EX AX ODE § 33.56(a)(1). Therefore, Movant also asks this court to vacate the judgment so
that these twenty-six people may be added as parties and included in a new judgment.
A judgment nunc pro tunc cannot be entered because the required Statement of the
Evidence and attorney ad litem’s fee was not signed and entered by the court. The Plaintiff
cannot state with confidence that the omission of the fee was a clerical error. Movant, the City
of Rosenberg requests that the tax foreclosure sale be set aside and the deed issued be declared
null and void, that the City of Rosenberg, the Intervenors, and any party that received any funds
from the sale of this property be ordered to refund the monies and excess proceeds that were
issued from the sale to FINNA FAIL, L.P. and that the Court grants the Petition to Vacate
Judgment.
Movant will draft an order and will file it after Counsel for the tax sale buyer has
approved the order. The signature of the buyer or its counsel to the order will show that that the
tax sale buyer has consented to the motion voiding the sale and vacating the judgment. See
TEXAS TAX Cone § 33.56(d)(4).
WHEREFORE PREMISES CONSIDERED, Movant requests the Court sct aside the tax
foreclosure sale of the real property described herein and the deed issued be declared null and
void and for such other and further relief to which it may be entitled.
PERDUE, BRANDON, FIELDER,
COLLIN & MOTT, L.L.P.
Email Address - PBFCM-Houston@pbfem.com
Yolanda M. Humphrey / Bar # 24009764
Otilia R. Gonzales / Bar # 24010360
Justin Barlow / Bar # 24117221
1235 North Loop West, Suite 600
Houston, Texas 77008
(713) 862-1860 (713) 862-1429 Fax
CERTIFICATE OF SERVICE
This instrument was served in accordance with Rule 21 and 21a of the Texas Rules of Civil
Procedure on this_ 22 September , 2023.
Cornrtrlle7
Email Address - PBFCM-Houston@pbfem.com
Yolanda M. Humphrey / Bar # 24009764
Otilia R. Gonzales / Bar # 24010360
Justin Barlow / Bar # 24117221
Linebarger, Gogggan, Blair & Sampson, attorneys for Fort Bend County,
linebargerfoc@|gbs.com;
Cormac Creaven, attorney for Finna Fail, LP, cormaccreaven@gmail.com
Victor Walker, attorney for Cindy Scogin Nelson, et al., vwalker@walkersecuritieslaw.com
John Vong, attorney ad litem, vonglongfirm@vonglawfirm.com
Preview
NO. 18-DCV-258221 CITY OF ROSENBERG § IN THE 240th DISTRICT COURT VS. § IN AND FOR KEVIN CHRIS LUDWIG § FORT BEND COUNTY, TEXAS PLAINTIFF’S MOTION TO SET ASIDE AND VOID TAX FORECLOSURE SALE AND PETITION TO VACATE JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT NOW COMES, CITY OF ROSENBERG, hereinafter called Movant, for that entity and would show the Court as follows: I The Movant filed a Tax Suit under Cause No. 18-DCV-2582210n December 31, 2018. Intervenors were Fort Bend County, Fort Bend County Drainage District, Fort Bend County General Fund, and Lamar Consolidated Independent School District on property identified as Fort Bend tax account R17851/ 8890000020080901 and having the following legal description: “Being Lot No. 8 in Block No. 2. of the Tobola Subdivision of' 16.8 acres, being out of the West end of Lot No. Two (2) in the Donley Subdivision in the James Lowery 1/3 League, Abstract 275, in Fort Bend County, Texas, according to the plat made by Charles Schultz, said plat being shown of record in Vol. 296, Page 502 of the Deed Records of Fort Bend County, Texas, to which reference is here made for further description.” The Judgment was signed by the District Court on August 25, 2022. The Fort Bend County Constable sold the property at tax sale on December 6, 2022. The high bid of Seventy Thousand Dollars ($70,000.00) was accepted from bidder FINNA FAIL, L.P. Subsequently, a Constable’s Deed was issued to FINNA FAIL, L,P, 1621- Pelican Beach, Houston, Texas 77044 and recorded in the Deed Records of Harris County, Texas on March 17, 2023 under Clerk’s File no. 2023023809. I. REQUIRED STATEMENT OF THE EVIDENCE WAS NOT SIGNED AND ENTRED BY THE COURT Defendant Kevin Chris Ludwig is deceased. At the time this tax suit was filed there was no probate or affidavit of heirship regarding any possible heirs of Mr. Ludwig. Mr. Ludwig was served by means of citation by posting and service as provided by Rule 117A ofthe TEXAS RULES OF CIVIL PROCEDURE. The court appointed attorney ad litem John Vong who filed an answer for Mr. Ludwig. It is believed that the attorney ad litem appeared at the trial and offered testimony regarding his findings and fee in this case. However the court’s record does not reflect this. Mr. Vong was paid an attorney ad litem of $2,891.11 from the sale proceeds. Prior to trial, Movant filed a proposed Statement of the Evidence signed by its counsel and counsel for the intervenor, but it was not signed and entered by the court during the trial. Pursuant to Tex. R. Civ. P. 244, a Statement of the Evidence approved and signed by the court is required to be filed with the case. The failure to sign the Statementof Evidence is a reversible error. See Montgomery v. R.E.C. Interests, Inc., 130 8.W.3d 444, 447 (Tex. App.—Texarkana 2004, no pet.) Tax sale buyer Finna Fail, L.P. requested that the sale be voided. Ill. PETITION TO VACATE A taxing unit may file a petition to vacate judgment for failing to join a party needed for just adjudication. Ifthe petition is granted, the delinquent tax suit is revived, pursuant to TEXAS Tax CODE §33.56(e), allowing the plaintiffto add the necessary parties and set a new trial date. The owners of record were Otto J. Ludwig and Meta Ludwig. Ms. Ludwig died in 1989. Mr. Ludwig died in 2008. His will was probate under cause number 08-CPR-021253 and named Kevin Chris Ludwig as his heir. Kevin Ludwig was served in this cause but passed away before a judgment was signed. A probate case was not filed for him and an affidavit of heirship was not filed for him until July 2023. The affidavit shows that Defendant Kevin Chris Ludwig passed away without leaving a spouse or children, but he has numerous intestate heirs through his deceased parents’ lineages. These individuals may have a claim to the property and any excess proceeds from its sale. Mrs. Ludwig should have been a party to the judgment because there was not a probate case for her. The heirship affidavits that have now been filed show that her heirs would have been her son and husband—but the affidavits also show that there are a number of heirs who were not in the judgment. A judgment can be vacated for failure to join a necessary party. See EX AX ODE § 33.56(a)(1). Therefore, Movant also asks this court to vacate the judgment so that these twenty-six people may be added as parties and included in a new judgment. A judgment nunc pro tunc cannot be entered because the required Statement of the Evidence and attorney ad litem’s fee was not signed and entered by the court. The Plaintiff cannot state with confidence that the omission of the fee was a clerical error. Movant, the City of Rosenberg requests that the tax foreclosure sale be set aside and the deed issued be declared null and void, that the City of Rosenberg, the Intervenors, and any party that received any funds from the sale of this property be ordered to refund the monies and excess proceeds that were issued from the sale to FINNA FAIL, L.P. and that the Court grants the Petition to Vacate Judgment. Movant will draft an order and will file it after Counsel for the tax sale buyer has approved the order. The signature of the buyer or its counsel to the order will show that that the tax sale buyer has consented to the motion voiding the sale and vacating the judgment. See TEXAS TAX Cone § 33.56(d)(4). WHEREFORE PREMISES CONSIDERED, Movant requests the Court sct aside the tax foreclosure sale of the real property described herein and the deed issued be declared null and void and for such other and further relief to which it may be entitled. PERDUE, BRANDON, FIELDER, COLLIN & MOTT, L.L.P. Email Address - PBFCM-Houston@pbfem.com Yolanda M. Humphrey / Bar # 24009764 Otilia R. Gonzales / Bar # 24010360 Justin Barlow / Bar # 24117221 1235 North Loop West, Suite 600 Houston, Texas 77008 (713) 862-1860 (713) 862-1429 Fax CERTIFICATE OF SERVICE This instrument was served in accordance with Rule 21 and 21a of the Texas Rules of Civil Procedure on this_ 22 September , 2023. Cornrtrlle7 Email Address - PBFCM-Houston@pbfem.com Yolanda M. Humphrey / Bar # 24009764 Otilia R. Gonzales / Bar # 24010360 Justin Barlow / Bar # 24117221 Linebarger, Gogggan, Blair & Sampson, attorneys for Fort Bend County, linebargerfoc@|gbs.com; Cormac Creaven, attorney for Finna Fail, LP, cormaccreaven@gmail.com Victor Walker, attorney for Cindy Scogin Nelson, et al., vwalker@walkersecuritieslaw.com John Vong, attorney ad litem, vonglongfirm@vonglawfirm.com