Marine Staff Sergeant Thinh Tran is unavailable to speak at the moment; he's training in the California desert in advance of a deployment to Afghanistan. He is, by all accounts, out of the country often: In October 2009, for instance, he received orders he was to ship out for a two-year stint in Japan. He left Texas with his wife and two children shortly thereafter, leaving behind his parents in the house off Shiloh and Ferguson that Thinh bought for his parents several years ago. As the eldest son, he believed it was nothing less than his duty to make sure they were taken care of.
But not long after that, according to court documents, Thinh received word from his sister: Their parents were being evicted by Dallas County Constable Ben Adamcik, who had sold the house at a foreclosure auction. The reason: Discover said Thinh's father, My Van Tran, a political refugee from Vietnam, owed thousands on his credit card, and contacted a Houston firm to collect -- which it did, by getting in touch with Dallas County Constable Derrick Evans, instructing him to foreclose, even though his son pays the mortgage and is on the county tax rolls as the sole owner of the property. Ultimately, the constables sold the house, which sits on the tax rolls for around $109,000, to a man named James Moore for $700.
Thinh would eventually have to leave his wife and children in Japan and return to Texas to find out what had happened, to make sure his folks weren't left homeless. He swapped places with a soldier in San Antonio, then came home to find an attorney to take on the county and credit card company. The case, filed in January of this year in Dallas County District Court, moved to federal court on Friday; I saw it on PACER this morning. The family's attorney, Christopher Nygaard of Plano, says he believes Discover removed the case to federal court to delay the trial, which was scheduled to start January 30. At this very moment, he is trying to get it sent back to district court, where Judge Martin Hoffman has allowed the family to remain in the house till the case is settled.
The docs that were transferred from district court to federal last week follow; you'll find the original complaint, as well as all the defendants' various denials, including Dallas County's insistence that the constables are protected from prosecution by sovereign immunity. I asked Nygaard this morning if, perhaps, this case relates to the revelation earlier this year that some deputy constables claimed to have served eviction notices when, in fact, they had not. He says he's not sure, that it remains an issue for discovery.
"They foreclosed on the house to pay for his father's credit card debt," Nygaard tells Unfair Park this morning. "But the whole time, everyone's circulating back and forth a copy of the deed that says Sgt. Tran owns the house. And yet they still sold it, which is a real head-scratcher."
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Says Nygaard, "The other wrinkle that occurs in this suit is Texas statute says that when when the government is selling someone's house, there's an obligation to find out you're actually selling the debtor's possession. But in a different section in the Civil Practice & Remedies Code, it says an office, like the constable's office, does not have a duty to see if that property belongs to the debtor. That was the constable's defense: They didn't have to look it up.
"But their argument doesn't fly because what ends up happening is that statute is unconstitutional as applied, because the Constitution says before you take someone's property you have to accord them due process. If Sgt. Tran isn't given notice, let alone a hearing, then no due process is given him before they took his property The state statute designed to protect the constables from someone whose peroperty was taken doesn't work because U.S. Constitution enjoys preeminence. It trumps the state statute. That's where we are right now. It's a little annoying because I think everyone should say: 'We goofed,' and admit to something and own up and come clean. Instead they're trying to hide behind statutes, and Discover's first claim was: 'You can't sue us, you need to sue this collection services arm,' which didn't even exist at the time they sold Sgt. Trah's house."
As for the credit card debt that led to this mess in the first place, Nygaard says Discover insists My Van Tran owns $12,000. The attorney says he has asked for a copy of the bills, "so I could get some idea how much is actually owed. And they refused to produce that."
Thinh Tran v Discover and Dallas County Constables