Isaac v. CitiMortgage, Inc.

563 S.W.3d 305
CourtCourt of Appeals of Texas
DecidedAugust 14, 2018
DocketNO. 01-17-00521-CV
StatusPublished
Cited by11 cases

This text of 563 S.W.3d 305 (Isaac v. CitiMortgage, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Isaac v. CitiMortgage, Inc., 563 S.W.3d 305 (Tex. Ct. App. 2018).

Opinion

Evelyn V. Keyes, Justice *308In the underlying forcible detainer action, the trial court awarded appellee CitiMortgage, Inc. possession of the property known as 123 Dana Drive, Hutto, Texas (the Property). Appellants, Jerome J. Isaac and Michelle P. Isaac, the owners of the Property until it was sold in a foreclosure sale in 2013, appeal that decision, arguing that the trial court erred in granting CitiMortgage a judgment for possession because (1) there were apparent defects of title that required the trial court not to assert jurisdiction; (2) CitiMortgage's live pleading was invalid because it was not "sworn to by the Plaintiff" but was instead verified by CitiMortgage's attorney; (3) CitiMortgage "tendered no evidence that [it] was entitled to treat [the Isaacs] as tenants at sufferance, and [CitiMortgage] was not in privity of contract with [the Isaacs] in regard to a lien instrument"; and (4) CitiMortgage presented no evidence of the Isaacs' continued possession of the home after CitiMortgage gave them notice to vacate.

We affirm.

Background

The Isaacs defaulted on their home loan in 2012 and the Property was sold at a foreclosure sale to CitiMortgage on February 5, 2013. The Isaacs filed a suit against CitiMortgage and other entities that are not a party to this appeal, challenging the validity of the foreclosure sale in district court. The district court in that case rendered a take-nothing judgment against the Isaacs on their challenge to the foreclosure sale, and the Austin Court of Appeals affirmed the district court's judgment. See Isaac v. Vendor Res. Mgmt., Inc. , No. 03-14-00529-CV, 2016 WL 3917133 (Tex. App.-Austin July 15, 2016, no pet.) (mem. op.).

On September 21, 2016, CitiMortgage notified the Isaacs that they were required to vacate the Property. The notices were sent by regular and certified mail and addressed to the Isaacs at the Property. CitiMortgage also sent a separate notice to vacate by regular mail addressed to the "Occupant(s) and/or Tenant(s)" of the Property.

On October 7, 2016, CitiMortgage filed its forcible detainer petition in this suit in the justice court of the precinct where the Property was located. It alleged that the Isaacs "may be served with citation at the [Property]" and that they were "currently in possession of the [Property]." CitiMortgage alleged that it had purchased the Property at a non-judicial foreclosure sale, that it had notified the Isaacs through written demand to vacate the premises in accordance with Property Code section 24.005, and that it was entitled to possession of the Property.

The petition was verified by an attorney for CitiMortgage, who swore that she was "an attorney for Plaintiff authorized to make this petition and verification." The attorney further swore, "I have read the foregoing Original Petition for Forcible Detainer and the facts as stated therein *309are within my personal knowledge and are true and correct." The Isaacs were served with notice of the suit in person on October 10, 2016, at the Property. The justice court ruled in favor of CitiMortgage, and the Isaacs appealed the decision to the trial court.

In connection with their appeal to the trial court for a trial de novo, the Isaacs filed an appeal bond as required by Texas Rule of Civil Procedure 510.9(a). They also filed, on December 19, 2016, their "Plea in Abatement, Plea to Jurisdiction, and Original Answer Subject to Plea," in which they asserted a lack of "threshold jurisdiction" and sought a dismissal or abatement to address pleading defects. Nothing in the record indicates that there was a hearing on the plea in abatement or plea to the jurisdiction, and the record does not contain any ruling of the trial court on these pleas.

The trial court held a bench trial on March 21, 2017. CitiMortgage produced a business records affidavit for the documents relevant to the forcible detainer action. CitiMortgage introduced a copy of the Deed of Trust executed by the Isaacs and Sterling Capital Mortgage Company when they purchased the Property. That Deed of Trust provided, in relevant part,

If the Property is sold [as a remedy for default], Borrower [the Isaacs] or any person holding possession of the Property through Borrower shall immediately surrender possession of the Property to the purchaser at that sale. If possession is not surrendered, Borrower or such person shall be a tenant at sufferance and may be removed by writ of possession or other court proceeding.

CitiMortgage also provided a copy of the assignment of the Deed of Trust from Sterling to "First Nationwide Mortgage Corporation," and it provided documentation demonstrating that First Nationwide Mortgage Corporation subsequently merged with CitiMortgage.

CitiMortgage also presented the Substitute Trustee's Deed demonstrating that it had purchased the Property at a non-judicial foreclosure sale on February 5, 2013. The Substitute Trustee's Deed was accompanied by a "Statement of Facts" sworn by Brooke Ewing, a representative of the law firm representing CitiMortgage. Ewing averred,

I am making this affidavit based upon certain records maintained within the firm's files in the regular course of its business, which may include images of notices, certified mail forms, the signed Substitute Trustee's Deed, title searches, and other documents and records obtained and maintained in the usual course of business. Together with my general knowledge of mortgage servicer practices for referring foreclosure matters to the firm, the statements and information shown in these records form the basis for the following statements made in this affidavit, which to the best of my knowledge and belief are true.

Ewing's affidavit set out some relevant facts relied upon by the substitute trustee in conveying the Property to CitiMortgage following the foreclosure sale, including statements that CitiMortgage was the mortgage servicer for the debt "evidenced by the Deed of Trust," that CitiMortgage had declared that the Isaacs had defaulted on the loan, that proper notices had been sent, and that the firm had otherwise followed "a regular process [used] in foreclosure matters to ascertain a Grantor's military service statuts" and "no Grantor is reported as on active duty military service or as having concluded active military service within the preceding nine months."

Finally, CitiMortgage provided copies of the notices to vacate sent to the Isaacs at the Property in September 2016. CitiMortgage *310also provided the trial court with a copy of the Third Court of Appeals' opinion in the Isaacs' challenge to the validity of the foreclosure sale, showing that the Third Court affirmed the district court's take-nothing judgment against the Isaacs in that case. All of these documents were admitted by the trial court without objection.

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Bluebook (online)
563 S.W.3d 305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/isaac-v-citimortgage-inc-texapp-2018.