Compass Bank, an Alabama Banking Corporation, Authorized to Do Business as BBVA Compass v. Recillia Johnson and All Other Occupants

Opinion

ACCEPTED

05-17-00777-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS 6/8/2018 11:04 AM

LISA MATZ

CLERK

NO. 05-17-00777-CV

FILED IN

5th COURT OF APPEALS

In the Fifth Court of Appeals DALLAS, TEXAS 6/8/2018 11:04:37 AM

LISA MATZ

Clerk

COMPASS BANK, an Alabama Banking Appellant, Corporation, authorized to do business as BBVA Compass,

VS.

RECILLIA JOHNSON and Appellee.

All Other Occupants of 3420 Detonte Street, Dallas, TX 75223,

APPELLANT’S RESPONSE TO

APPELLEE’S MOTION FOR WRONGFUL FORECLOSURE COMES NOW Compass Bank, Appellant, and files this response to Appellee’s Motion

for Wrongful Foreclosure. Appellant would respectfully show the Court as follows:

1. The Court rendered Judgment in favor of Appellant in this appeal on April 30,

2018.

2. On May 15, 2018, Appellee filed a pro se Motion for Rehearing, which the Court

construed as a motion for extension of time for filing a motion for rehearing.

3. On June 4, 2018, Appellee filed a pro se Motion for Wrongful Foreclosure, which

in substance is a motion for rehearing.

4. Appellee argues in her Motion for Wrongful Foreclosure that the underlying foreclosure sale was wrongful and that Appellant did not give her a chance to save her home after

she fell sick and she submitted unspecified paperwork and “doctors paper.” Appellee did not file

a brief in this appeal.

5. As set forth in the Court’s Memorandum Opinion in this appeal, “[t]he only issue

in a forcible detainer action is which party has the right to immediate possession of the property.

Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 470 (Tex. App.—Dallas 2010, pet. dism’d

w.o.j.). Whether the sale of the property under a deed of trust is invalid may not be determined in

a forcible detainer and must be brought in a separate suit. Id.at 471.”

6. Therefore, any argument regarding the validity of the foreclosure sale is outside

the scope of this appeal.

7. In her motion, Appellee only discusses the validity of the underlying foreclosure

sale and has made no argument regarding which party has the superior right to immediate

possession of the property.

8. Appellant has proven its superior right to immediate possession of the property,

and this Court agreed with Appellant’s arguments, stating in its Memorandum Opinion that based

on the “unobjected-to evidence, Compass Bank established its superior right to immediate

possession as a matter of law.” Therefore, Appellee’s Motion for Wrongful Foreclosure should

be denied.

WHEREFORE Compass Bank, Appellant, respectfully requests that Appellee’s Motion

for Wrongful Foreclosure be denied.

Respectfully submitted,

/s/ Jeremiah B. Hayes Selim H. Taherzadeh Texas Bar Number: 24046944 Jeremiah B. Hayes Texas Bar Number: 24048532 Taherzadeh, PLLC 5001 Spring Valley Road, Suite 1020W Dallas, Texas 75244 Telephone: (469) 729-6800 Facsimile: (469) 828-2772 Email: st@taherzlaw.com

ATTORNEYS FOR THE APPELLANT

June 8, 2018

CERTIFICATE OF SERVICE

A copy of the foregoing document is being served on the below by certified mail, return receipt requested, and first-class mail in accordance with the Texas Rules of Civil Procedure on June 8, 2018.

Recillia Johnson 3420 Detonte Street Dallas, TX 75223

Occupant(s) 3420 Detonte Street Dallas, TX 75223

/s/ Jeremiah B. Hayes Jeremiah B. Hayes