Jennie Larry Johnson v. Freo Texas LLC

Opinion

ACCEPTED 01-15-00398-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 9/14/2015 8:25:28 AM CHRISTOPHER PRINE CLERK

No. 01-15-00398-CV

COURT OF APPEALS FILED IN FIRST DISTRICT OF TEXAS 1st COURT OF APPEALS HOUSTON, TEXAS Houston, Texas 9/14/2015 8:25:28 AM CHRISTOPHER A. PRINE Clerk JENNIE LARRY JOHNSON APPELLANT,

VS.

FREO TEXAS LLC, A DELAWARE LIMITED LIABILITY COMPANY APPELLEE.

Appeal from the County Court at Law Number Three (3)

Fort Bend County, Texas

Honorable Susan G. Lowery (Presiding Judge)

Case Number: 15-CCV-054223

BRIEF OF APPELLEE Oral Argument Not Requested

Travis H. Gray SBN 24044965 JACK O’BOYLE & ASSOCIATES P.O. Box 815369 Dallas, Texas 75381 P: 972.247.0653 | F: 972.247.0642 E: travis@jackoboyle.com ATTORNEY FOR APPELLEE IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of names and address of all parties to the

proceeding and their counsel:

APPELLANT: JENNIE LARRY JOHNSON

Represented at Trial By: Jennie Larry Johnson, Pro Se 1907 Doliver Circle Missouri City, TX 77489

Represented on Appeal By: L Mickele Daniels SBN 05374900

L. Mickele’ Daniels & Associates One Arena Place, Suite 580 7322 Southwest Freeway Houston, Texas 77074 seminole85@peoplepc.com (713) 995-4681 Telephone (713) 995-4685 Facsimile

APPELLEE: FREO TEXAS LLC, A DELAWARE LIMITED LIABILITY COMPANY

Represented at Trial and on Appeal by: Travis H. Gray SBN 24044965 JACK O’BOYLE & ASSOCIATES P.O. Box 815369 Dallas, Texas 75381 P: 972.247.0653 F: 972.247.0642 E: travis@jackoboyle.com

2 STATEMENT REGARDING ORAL ARGUMENT

Appellee does not waive oral argument. FREO Texas LLC, A Delaware

Limited Liability Company believes that oral argument is not necessary for this

Court to understand the issues presented in the Briefs of the parties. However, if

the Court desires oral argument, FREO Texas LLC, A Delaware Limited Liability

Company wishes to participate. Tex. R. App. P. 39.7.

3 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL 2

STATEMENT REGARDING ORAL ARGUMENT 3

TABLE OF CONTENTS 4-5

INDEX OF AUTHORITIES 6-7

STATEMENT OF THE CASE 8

ISSUES PRESENTED 9

STATEMENT OF FACTS 10-11

ARGUMENT AND AUTHORITIES 12-27

I. THE TRIAL COURT CORRECTLY GRANTED JUDGMENT 12-19 ON AH4R’S CLAIM FOR FORCIBLE DETAINER

II. THE TRIAL COURT PROPERLY ADMITTED EXHIBIT 19-21 3

III. THE EVIDENCE PRESENTED BY PLAINTIFF AT 21-23 TRIAL WAS LEGALLY SUFFICIENT TO ESTABLISH ITS CLAIM FOR FORCIBLE DETAINER

IV. APPELLEE DEMONSTRATED TO THE COURT THAT 12-25 IT SENT TO APPELLANT THE REQUISITE NOTICE TO VACATE AND DEMAND FOR POSSESSION

V. THE TRIAL COURT PROPERLY MAINTAINED 25-27 JURISDICTION OVER THE MATTER DESPITE ALLEGED TITLE ISSUES

CONCLUSION 27-28

PRAYER 28

4 CERTIFICATE OF SERVICE 30

CERTIFICATE OF COMPLIANCE 31

APPENDIX 32

5 INDEX OF AUTHORITIES

CASES: Moncrief Oil Int'l, Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 12 2013). Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 803 (Tex. App.- 12 Dallas 2006, pet. denied). Bennett v. Cochran, 96 S.W.3d 227, 229-30 (Tex. 2002) (per curiam). 12 Gallagher v. Fire Ins. Exch., 950 S.W.2d 370, 370-71 (Tex. 1997))). 12 Heckendorn v. First Mortg. Co., LLC, No. 13-12-00451-CV, 2013 WL 12-13 5593520 (Tex. App.-Corpus Christi July 29, 2013, no pet.) (mem. op.) Perez v. Spring Branch Indep. Sch. Dist., No. 14-10-00058-CV, 2011 13 WL 742601, at *2-3 (Tex. App.-Houston [14th Dist.] Mar. 3, 2011, pet. denied) (mem. op.) (per curiam). Jaimes v. Federal Nat'l Mortg. Ass'n, No. 03-13-00290-CV, 2013 WL 13 7809741 (Tex. App.-Austin Dec. 4, 2013, no pet.) (mem. op.). Yarto v. Gilliland, 287 S.W.3d 83, 92 (Tex. App.-Corpus Christi 13 2009, no pet. Gall v. Allstate Cnty. Mut. Ins. Co., No. 09-99-00296-CV, 2000 WL 13 235148 (Tex. App.-Beaumont Mar. 2, 2000, no pet.) Cantu v. Federal Nat'l Mortg. Ass'n, No. 02-11-00293-CV, 2012 WL 13 955363 (Tex. App.-Fort Worth Mar. 22, 2012, no pet.) (mem. op.). Smith v. KNC Optical, Inc., 296 S.W.3d 807, 811 (Tex.App.- Dallas 14 2009, no pet.). Rice v Pinney, 51 S.W.3rd 705, 709 (Tex.App.-Dallas 2001, pet.dism’d 15, 16, w.o.j.). 23 U.S. Bank Nat’l Ass’n v. Freeney, 266 S.W.3d 623, 625 (Tex.App.- 15, 22 Dallas 2008, no pet.). Dormandy v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555 15 (Tex.App.—San Antonio 2001, pet. dism’d w.o.j.). Rodriguez v. Citimortgage, Inc., No. 03–10–00093–CV, 2011 WL 16, 21 182122, (Tex.App.-Austin Jan. 6, 2011, no pet.) (mem. op.). Mitchell v. Citifinancial Mortgage Company, 192 S.W. 3rd 882, 883 16 (Tex.App.-Dallas 2006 no pet) Powelson v. U.S. Bank National Association, 125 S.W.3rd 810, 812 17 (Tex.App.-Dallas 2004, no pet.). Mortgage Electronic Registration Systems, Inc. v. Knight, No. 09-04- 18 452 CV, 2006 WL 510338, (Tex.App-Beaumont March 2, 2006, no pet.) (mem. op.). Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex.App.- 19

6 Dallas 2010, no pet.) Hope's Fin. Mgmt. v. Chase Manhattan Mortg. Corp., 172 S.W.3d 105, 20 107 (Tex.App.-Dallas 2005, pet. denied). Duncan Dev., Inc. v. Haney, 634 S.W.2d 811, 813–14 (Tex.1982). 21 City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). 22 Thomas v. Ray, 889 S.W.2d 237, 238 (Tex.1994). 24 Kaldis v. U.S. Bank Nat'l Ass'n, No. 14–11–00607–CV, 2012 WL 24 3229135, at 1, 3 (Tex.App.-Houston [14th Dist.] Aug. 9, 2012, pet. dism'd w.o.j.) (mem.op. Ramey v. Bank of New York, No. 14–06–00824, 2010 WL 2853887, at 24 3 (Tex.App.-Houston [14th Dist.] July 22, 2010, no pet.) (mem.op.) Jimmerson v. Homecomings Financial L.L.C., No. 02–07–00305– CV, 25 2008 WL 2639757, at 2 n. 3 (Tex.App.-Fort Worth July 3, 2008, no pet.) (mem.op.) Villalon v. Bank One, 176 S.W.3d 66, 69 (Tex.App.-Houston [1st Dist.] 26 2004, pet. denied).

STATUTES: Tex. R. App. P. 39.7 3 Tex. Prop. Code Ann. § 24.002(a)(2) 14 Tex. R. Civ. P. 510.3(e). 15 Tex. R. Civ. P. 510.3(a). 16 Tex. Prop. Code Ann. Sections 24.002(b) 18 Tex. Prop. Code Ann. Sections 24.002 18 Tex.R.App. P. 33.1(a). 19 Tex. R. Evid. 803(6) 20

7 STATEMENT OF THE CASE

This forcible detainer case is an appeal from a judgment granted in favor of

FREO Texas LLC, A Delaware Limited Liability Company (‘FREO’).

Appellee purchased the Subject Property at foreclosure and filed suit for

forcible detainer in the appropriate Justice of the Peace Court against Jennie Larry

Johnson and/or All Occupants of 1907 Doliver Circle, Missouri City, TX 77489.

The Justice Court’s judgment in that case was appealed to the County Court

at Law Number Three of Fort Bend County, Texas to be considered de novo. At

trial the County Court entered judgment for Appellee. Appellant Jennie Larry

Johnson then appealed that County Court’s judgment to this Court.

In its brief Appellant argues that judgment was improperly awarded to

FREO as it allegedly failed to properly send notice in accordance with Texas

Property Code 24.005, the trial court improperly admitted Plaintiff’s Exhibit 3 –

the business records affidavit of Appellee which contained the Notice to Vacate

and Demand for Possession sent by Appellee prior to filing suit, and the Trial

Court lacked jurisdiction to determine the issue of possession.

8 ISSUES PRESENTED

I. THE TRIAL COURT CORRECTLY GRANTED JUDGMENT ON

FREO’S CLAIM FOR FORCIBLE DETAINER.

II. THE TRIAL COURT PROPERLY ADMITTED FREO’S EXHIBIT 3.

III. THE EVIDENCE PRESENTED BY FREO AT TRIAL WAS LEGALY

SUFFICIENT TO ESTABLISH ITS CLAIM FOR FORCIBLE

DETAINER.

IV. APPELLEE DEMONSTRATED TO THE COURT THAT IT SENT TO

APPELLANT THE REQUISITE NOTICE TO VACATE AND DEMAND

FOR POSSESSION

V. THE TRIAL COURT PROPERLY MAINTAINED JURISDICTION OVER

THE MATTER DESPITE THE ALLEGED TITLE ISSUE AND PENDING

SUIT CONTESTING TITLE TO THE SUBJECT PROPERTY.

9 STATEMENT OF FACTS

On December 19, 2003, Jennie Larry Johnson executed a Deed of Trust to

secure payment of a Note concerning the real property identified by street address

as 1907 Doliver Circle, Missouri City, TX 77489 (the “Subject Property”). (C.R.

46-56). This Deed of was admitted into evidence at the January 28, 2015 trial on

the merits as Plaintiff’s Exhibit 2. (Id.). According to the Deed of Trust, in the

event of default the lender may require immediate payment in full of all sums

secured under the terms of the Note and may invoke the power of sale contained in

the Deed of Trust and any other remedies permitted by law. (C.R. 52). Section 18

of the Deed of Trust then authorized the foreclosure sale of the subject property to

the highest bidder and permitted purchase by the lender or its designee. Id.

Paragraph 4 of Section 18 of said Deed of Trust also provides that:

“If the property is sold pursuant to this Section 18, Borrower 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.” Id. Appellant(s) defaulted under the terms of the Note subjecting the property to

foreclosure proceedings. As evidenced by a Substitute Trustee’s Deed, Appellee

FREO Texas LLC (‘FREO’) acquired the Subject Property at the non-judicial

foreclosure sale held on November 04, 2014. (C.R. 43). This Substitute Trustee’s

10 Deed was admitted into evidence without objection at the January 28, 2015 trial on

the merits as Plaintiff’s Exhibit 1. (Id.).

On November 17, 2014, Appellee FREO, by and through its counsel of

record, sent written notice to vacate and demand for possession of the Subject

Property. (C.R. 59-64). This Notice to Vacate and Demand for Possession was

admitted into evidence at the January 28, 2015 trial on the merits as Plaintiff’s

Exhibit 3. (C.R. 57-64).

On or around December 02, 2014 FREO filed suit for forcible detainer in the

Justice of the Peace Court – Precinct 2, Place 1 of Fort Bend County, Texas. (C.R.

21-22). At the December 23, 2014 Justice Court trial the presiding judge granted

judgment in favor of FREO. (C.R. 15). The Justice Court’s judgment was then

appealed to the County Court at Law of Fort Bend County, to be considered de

novo. (C.R. 11-12).

On January 28, 2015 the honorable judge presiding over the County Court at

Law No. 3 of Fort Bend County, Texas entered judgment in favor of FREO and

awarded it possession of the Subject Property. (C.R. 65-66). Appellant appealed

the County Court’s judgment to this Court.

11 ARGUMENT AND AUTHORITIES

I. THE TRIAL COURT CORRECTLY GRANTED JUDGMNET ON

APPELLEE’S CLAIM FOR FORCIBLE DETAINER

A. STANDARD OF REVIEW

Appellant appeals the County Court’s award of possession in favor of

Appellee arguing that there was insufficient evidence presented at trial establishing

its right to possession of the Subject Property.

In the absence of findings of fact and conclusions of law — and there are

none here — the Court should imply that the trial court found all material facts

necessary to support the judgment that are supported by the evidence. 1 Moreover,

because no reporter's record has been brought forward on appeal, the Court should

presume that these implied findings by the trial court were indeed supported by

sufficient evidence. 2

Accordingly, the Court must presume that FREO presented sufficient

evidence to establish its right to immediate possession of the Property as required

1 See Moncrief Oil Int'l, Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013). 2 Willms v. Americas Tire Co., Inc., 190 S.W.3d 796, 803 (Tex. App.-Dallas 2006, pet. denied); see Bennett v. Cochran, 96 S.W.3d 227, 229-30 (Tex. 2002) (per curiam) ("`The court of appeals was correct in holding that, absent a complete record on appeal, it must presume the omitted items supported the trial court's judgment.'" (quoting Gallagher v. Fire Ins. Exch., 950 S.W.2d 370, 370-71 (Tex. 1997))).

12 to prevail in its action. 3 Similarly, in the absence of a record, appellants cannot

show any reversible error from any rulings admitting or excluding evidence, 4 any

asserted defects in the foreclosure sale, 5 the existence of any asserted "title

dispute," 6 alleged "bias" by the trial court or "abuse" by opposing counsel, 7 or the

denial of a continuance. 8

3 See, e.g., Heckendorn v. First Mortg. Co., LLC, No. 13-12-00451-CV, 2013 WL 5593520, at *4-5 (Tex. App.-Corpus Christi July 29, 2013, no pet.) (mem. op.) (holding in absence of reporter's record, appellate court would presume evidence supported trial court's ruling in forcible detainer suit). 4 See, e.g., Perez v. Spring Branch Indep. Sch. Dist., No. 14-10-00058-CV, 2011 WL 742601, at *2-3 (Tex. App.-Houston [14th Dist.] Mar. 3, 2011, pet. denied) (mem. op.) (per curiam) (in absence of reporter's record, reviewing court had "no record of what . . . evidence at trial was," and therefore had "no basis to review" appellant's issues challenging the trial court's evidentiary rulings). 5 See, e.g., Jaimes v. Federal Nat'l Mortg. Ass'n, No. 03-13-00290-CV, 2013 WL 7809741, at *3-4 (Tex. App.-Austin Dec. 4, 2013, no pet.) (mem. op.) (rejecting arguments premised on alleged defects in foreclosure proceedings where evidence in record provided trial court with independent basis to determine issue of immediate possession 6 See Yarto v. Gilliland, 287 S.W.3d 83, 92 (Tex. App.-Corpus Christi 2009, no pet.) (holding that if party fails to present "`specific evidence to raise a genuine title dispute, the jurisdiction of the court [is] never at issue'" (quoting Falcon v. Ensignia, 976 S.W.2d 336, 338 (Tex. App.-Corpus Christi 1998, nopet.))). 7 See, e.g., Gall v. Allstate Cnty. Mut. Ins. Co., No. 09-99-00296-CV, 2000 WL 235148, at *1-2 (Tex. App.-Beaumont Mar. 2, 2000, no pet.) (not designated for publication) (holding that without reporter's record, court could not decide points of error related to alleged judicial bias and improper behavior on the part of opposing counsel). 8 See, e.g., Cantu v. Federal Nat'l Mortg. Ass'n, No. 02-11-00293-CV, 2012 WL 955363, at *2-3 (Tex. App.-Fort Worth Mar. 22, 2012, no pet.) (mem. op.) (in absence of reporter's record, appellate court could not conclude trial court abused its discretion in denying motion for continuance in forcible detainer action).

13 When a party challenges the evidence supporting a finding upon which he

did not bear the burden of proof, the appellate court will sustain the challenge if the

evidence offered to support the finding is no more than a scintilla. 9 Evidence is no

more than a scintilla if it is so weak that it does no more than create a surmise or

suspicion of its existence. 10 In conducting its review, the appellate court considers

the evidence in the light most favorable to the verdict, indulging every reasonable

inference in support. Id.

Appellee submits that based upon the pleadings on file with the court, the

stipulations of the parties, and the exhibits admitted into evidence at trial, that it

established its right to immediate possession of the Subject Property as a matter of

law. Appellee accordingly submits that the trial court did not err in awarding

possession of the Subject Property to Appellee.

B. NATURE OF A FORCIBLE DETAINER ACTIONS

A forcible detainer action is a special proceeding governed by Chapter 24 of

the Texas Property Code and Rule 510 of the Texas Rules of Civil Procedure.

Under Texas law, a tenant who refuses to surrender possession of the subject

property on demand commits a forcible detainer. 11

9 Smith v. KNC Optical, Inc., 296 S.W.3d 807, 811 (Tex.App.- Dallas 2009, no pet.). 10 Id. 11 Tex. Prop. Code Ann. § 24.002(a)(2).

14 A forcible detainer action is intended to be a speedy, simple, and

inexpensive means for resolving the question of the right to immediate possession 12 of premises. The only issue in an action for forcible detainer is the right to

actual possession, and the merits of title shall not be adjudicated. 13 Any defects in

the foreclosure process or with appellee’s title to the property may not be

considered in a forcible detainer action. 14 Those defects may be pursued in suits

for wrongful foreclosure or to set aside the substitute trustee’s deed, but they are

not relevant in a forcible detainer action. 15

Even when a dispute as to title may exist, if the foreclosed upon Deed of

Trust establishes a landlord-tenant relationship making Appellant a tenant at

sufferance, this relationship provides an independent basis for determining the

right to immediate possession without resolving the ultimate issue of title to the

property. 16 A forcible detainer action is cumulative, not exclusive, of other

remedies that a party may have, and the parties may concurrently pursue both a

forcible detainer action in justice court and a suit to quiet title in district court. 17

C. THE BURDEN OF PROOF IN FORCIBLE DETAINER ACTIONS

12 Rice v Pinney, 51 S.W.3rd 705, 709 (Tex.App.-Dallas 2001, pet.dism’d w.o.j.). 13 Tex. R. Civ. P. 510.3(e). 14 U.S. Bank Nat’l Ass’n v. Freeney, 266 S.W.3d 623, 625 (Tex.App.-Dallas 2008, no pet.). 15 Id. 16 Dormandy v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555 (Tex.App.—San Antonio 2001, pet. dism’d w.o.j.). 17 Id. at 559.

15 To prevail in a forcible detainer action, a plaintiff is not required to prove

title, but is only required to show sufficient evidence of ownership to demonstrate

a superior right to immediate possession. 18 To establish its claim for forcible

detainer, Appellee herein had to prove: (1) it was the owner of the property in

question, (2) Appellant was an occupant at the time of foreclosure, (3) the

foreclosure was of a lien superior to Appellant’s right to possession, (4) Appellee

made a written demand for possession in accordance with section 24.005 of the

property code, and (5) Appellant failed and/or refused to vacate. 19

(i) The Complaint

Texas Rule of Civil Procedure 510.3(a) requires that the complaint contain a

description of the facts and the grounds for eviction. 20 In Mitchell v. Citifinancial

Mortgage Company 21 this Court stated:

“The complaint in this case stated that Citifinancial, holder of the

note for the Deed of Trust, executed its power of sale under the Deed

of Trust and acquired the property. The complaint further stated that

appellants were given notice to vacate the premises pursuant to the

Texas Property Code and that they failed or refused to do so. These

18 Rice, 51 S.W.3d at 709. 19 Rodriguez v. Citimortgage, Inc., No. 03–10–00093–CV, 2011 WL 182122, (Tex.App.-Austin Jan. 6, 2011, no pet.) (mem. op.). 20 Tex. R. Civ. P. 510.3(a). 21 Mitchell v. Citifinancial Mortgage Company, 192 S.W. 3rd 882, 883 (Tex.App.- Dallas 2006 no pet)

16 facts are sufficient to demonstrate Citifinancial’s entitlement to

possession of the property.” 22 The original petition for forcible detainer filed by Appellee AH4R makes

the same allegations as Citifinancial’s complaint, and establishes the same

foundational facts as in the Mitchell and Powelson cases. (C.R. 21-22).

(ii) The Evidence Submitted

In MERS v. Knight (copy attached as Appendix B) the Beaumont Court of

Appeals reviewed the evidence presented by the plaintiff in a post-foreclosure

forcible detainer case and made the following observations:

“MERS further relied on three documents: (1) a certified copy of the

deed of trust; (2) a certified copy of the substitute trustee’s deed; and

(3) a copy of the certified notice to vacate sent to Knight. First, the

deed of trust signed by Knight established a landlord-tenant

relationship between MERS and Knight. The deed of trust required

Knight, or any person holding possession through her, to

“immediately surrender possession of the Property to the purchaser at

the foreclosure sale.” The deed of trust further provided that failure to

surrender possession would cause Knight, or anyone possessing

through her, to become a “tenant at sufferance.” Second, the

22 See also Powelson v. U.S. Bank National Association, 125 S.W.3rd 810, 812 (Tex.App.-Dallas 2004, no pet.).

17 substitute trustee’s deed established that MERS was entitled to

possession of the property. The substitute trustee conveyed the

property by deed to MERS after it purchased the property at the

foreclosure sale. Finally, the notice to vacate provided proof of

proper notice to KNIGHT that MERS required her to vacate the

premises. 23

Nothing in the record controverts the three legal documents. Thus, on

this record, MERS established its entitlement to possession as a matter

of law. We find the evidence is legally insufficient to support the

award of possession to Knight and find that MERS established as a

matter of law that it is legally entitled to possession of the premises.

We find the county court erred in awarding possession to Knight.

Accordingly, we reverse the court’s judgment and render judgment

that MERS is entitled to possession.” 24

Appellee submits that at trial the evidence considered by the county court in

this case was essentially identical to the evidence introduced by MERS in the

Knight case. To summarize, Appellee FREO demonstrated at trial its right to

possession of the property as follows: (1) the substitute trustee’s deed (C.R. 43-45)

23 See Tex. Prop. Code Ann. Sections 24.002(b); 24.005. 24 Mortgage Electronic Registration Systems, Inc. v. Knight, No. 09-04-452 CV, 2006 WL 510338, (Tex.App-Beaumont March 2, 2006, no pet.) (mem. op.).

18 evidencing the foreclosure sale of the Subject Property and subsequent conveyance

to Appellee; (2) the deed of trust (C.R. 46-56) evidencing Appellant’s status as a

tenant at sufferance; and (3) the notice to vacate (C.R. 57-64) evidencing

Appellee’s notification to Appellant that it must vacate the property. This evidence

is sufficient to demonstrate Appellee FREO’s right to immediate possession of the

Subject Property. 25 For these reasons, the trial court did not err in awarding

possession of the Subject Property to Appellee FREO.

II. THE TRIAL COURT PROPERLY ADMITTED FREO’S EXHIBIT 3.

In its first issue presented Appellant asserts that the trial court committed

error in admitting Plaintiff’s Exhibits 3 into evidence. As an initial matter it should

be noted that Appellant failed to request a reporter’s record at trial.

In order to properly preserve a complaint for appellate review, there must be

a reporter’s record and that record must show that (1) the complaint was made to

the trial court by a timely request, objection, or motion and (2) the trial court ruled

on or refused to rule on the request, objection, or motion. 26 This rule applies

equally to pro se litigants as it does to those represented by counsel.

25 Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex.App.-Dallas 2010, no pet.) 26 Tex.R.App. P. 33.1(a).

19 “Pro se litigants,” like Appellant, “are held to the same standards as licensed

attorneys and must comply with all applicable laws and rules of procedure.” 27

FREO’s Exhibit 3 was the Business Records Affidavit of Patti Henslee

containing the Notice to Vacate and Demand for Possession sent to the Subject

Property and dated November 17, 2014. (See C.R. 57-64). FREO offered the

exhibit under the business records exception to the hearsay rule, which permits

evidence which otherwise would be inadmissible to be admitted if it meets certain

specific criteria. 28

To be admissible under the business records exception to the hearsay rule,

the proponent of the evidence must demonstrate: (1) the records were made and

kept in the course of a regularly conducted business activity; (2) it was the regular

practice of the business activity to create such records; (3) the records were created

at or near the time of the event recorded; and (4) the records were created by a

person with knowledge who was acting in the regular course of business. 29 These

prerequisites to admissibility may be provided in the form of an affidavit by the

27 Hope's Fin. Mgmt. v. Chase Manhattan Mortg. Corp., 172 S.W.3d 105, 107 (Tex.App.-Dallas 2005, pet. denied). 28 See TEX.R.EVID. 803(6). 29 Riddle v. Unifund CCR Partners, 298 S.W.3d 780, 782 (Tex.App.-El Paso 2009, no pet.).

20 custodian of records, or other qualified witness who has personal knowledge of the

information contained therein. 30

In the business records affidavit containing the Notice to Vacate and

Demand for Possession, Henslee averred that she was the custodian of those

records. (C.R. 57-58). She further averred that she was providing the records as

the custodian; that she had personal knowledge of the information contained in the

records; that the records were made in the regular course of business; and that it

was the regular practice of the business to keep such records. (Id.). The affidavit

therefore substantially complies with Texas Rule of Evidence 902(10) by averring

to facts that satisfy Rule 803(6). 31 The trial court did not abuse its discretion in

admitting this evidence under the business records exception to the hearsay rule.

Because Appellant failed to preserve at this his complaint regarding the

admissibility of Appellee’s evidence and because the evidence submitted was

properly authenticated and admissible, these issue(s) presented by Appellant must

be dismissed by this Court.

III. THE EVIDENCE PRESENTED BY PLAINTIFF AT TRIAL WAS

LEGALY SUFFICIENT TO ESTABLISH ITS CLAIM FOR FORCIBLE

DETAINER

30 See Duncan Dev., Inc. v. Haney, 634 S.W.2d 811, 813–14 (Tex.1982). 31 See Rodriguez v. Citimortgage, Inc., No. 03–10–00093–CV, 2011 WL 182122, (Tex.App.-Austin Jan. 6, 2011, no pet.) (mem. op., not designated for publication).

21 Appellant agues the evidence present at trial by Appellee was insufficient

to establish FREO’s claim for forcible detainer. As previously outlined, to obtain

possession by a forcible detainer action, the party seeking possession following a

foreclosure sale must show: (a) a substitute trustee's deed that conveyed the

property to it after a foreclosure sale; (b) a deed of trust establishing a landlord-

tenant relationship; (c) the party gave proper notice to vacate the premises; and (d)

the tenant refused to vacate. 32 At trial, appellee introduced, without objection, the

following exhibits: (1) Substitute Trustee's Deed; (2) Deed of Trust; and (3)

Affidavit of Attorney for Appellee with attached Notice to Vacate and signed

certified mail green card.

The test for legal sufficiency is “whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review.” 33 In

applying this test, the Court must view the evidence in the light most favorable to

the challenged finding and indulge every reasonable inference that would support

it. 34

The Substitute Trustee’s memorializes the sale of the Subject Property

pursuant to the terms of a Deed of Trust and names FREO as Grantee. The Deed

of Trust outlines Appellant’s obligations as borrower and contains paragraph 18,

32 U.S. Bank Nat'l Ass'n v. Freeney, 266 S.W.3d 623, 625 (Tex.App.-Dallas 2008, no pet.). 33 City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). 34 Id.

22 the tenant-at-sufferance clause, establishing a landlord-tenant relationship between

Ramey and the purchaser at the foreclosure sale.

The affidavit of Patti Henslee provided a copy of a letter directed to Jennie

Larry Johnson and/or All Occupants at the address of the Subject Property. The

letter is entitled “Notice to Vacate.” The Notice to Vacate, mailed via certified and

regular mail, provides three-days' notice to vacate prior to FREO’s filing

a forcible detainer suit.

This evidence, viewed in the light most favorable to the judgment, is

sufficient to show that appellee had a superior right to immediate possession of the

subject property. 35 Appellant’s issue must be overruled.

IV. APPELLEE DEMONSTRATED TO THE COURT THAT IT SENT TO

APPELLANT THE REQUISITE NOTICE TO VACATE AND DEMAND

FOR POSSESSION

Johnson contends that FREO failed to establish the Notice to Vacate and

Demand for Possession was delivered to Johnson or the premises. Ordinarily the

basis for this contention is based upon a notice and corresponding track and

confirm report that shows the certified mailer was returned. Here is it unclear why

Johnson argues the Notice was not received, as the evidence submitted in

35 See Rice, 51 S.W.3d at 709.

23 connection with FREO’s Exhibit 3 contains the Green Card for the Notice that is

signed by Johnson.

FREO asserts it provided the requisite three days' notice to vacate by

certified and regular mail. In support, FREO attached the following exhibits: (1)

the affidavit of Patti Henslee, custodian of records for the law office of FREO's

attorney; (2) a copy of a letter dated November 17, 2014 addressed to Johnson

“and/or All Current Occupants” of the subject property address and demanding

he/they vacate the premises no later than three days after receipt of the letter; (3) a

copy of the face of a certified-mail envelope with postage affixed; and (4) a copy

of the signed green card including a signature from what appears to be the signed

name “Jennie Johnson.” (See C.R. 57-64).

When a letter, properly addressed and postage prepaid, is mailed, there

exists a presumption that the notice was duly received by the addressee. 36 This

presumption may be rebutted by an offer of proof of non-receipt. Id. In the absence

of proof to the contrary, the presumption has the force of a rule of law. 37

36 Thomas v. Ray, 889 S.W.2d 237, 238 (Tex.1994). 37 Id.; see Kaldis v. U.S. Bank Nat'l Ass'n, No. 14–11–00607–CV, 2012 WL 3229135, at 1, 3 (Tex.App.-Houston [14th Dist.] Aug. 9, 2012, pet. dism'd w.o.j.) (mem.op.) (holding, in forcible detainer action, that landlord established delivery of notice to vacate by proving that, although letters sent to tenant by certified mail were returned unclaimed, letters sent by first class mail were not, and trial court was free to disbelieve tenant's testimony during bench trial that he did not receive the first class letters); Ramey v. Bank of New York, No. 14–06–00824, 2010 WL 2853887, at 3 (Tex.App.-Houston [14th Dist.] July 22, 2010, no pet.) (mem.op.)

24 The letter constitutes a business record of the law firm, it was properly filed

as evidence in the summary judgment proceeding, and it constitutes evidence that

the notice to vacate was sent to Johnson by regular mail and certified mail on

November 17, 2014. 38

FREO established delivery of the notice to vacate because it provided

evidence that the letter was sent to Johnson by certified and first class mail, there is

evidence indicating Johnson signed for this Notice, and there was no controverting

summary judgment evidence negating receipt of the first class letter. See Ramey,

2010 WL 2853887, at 3.

V. THE TRIAL COURT PROPERLY MAINTAINED JURISDICTION OVER

THE MATTER DESPITE THE ALLEGED TITLE ISSUES.

Appellant Johnson lastly appears to argue on appeal that the trial court

lacked jurisdiction to enter judgment in the forcible detainer action due to an

alleged title issue.

The jurisdiction of the county court at law, sitting as an appellate court over

the judgment of a justice court, is confined to the jurisdictional limits of the justice

(holding landlord established delivery of notice to vacate because it proved letter was sent to tenant by certified and first class mail and there was no evidence negating receipt of the first class letter). 38 See Jimmerson v. Homecomings Financial L.L.C., No. 02–07–00305– CV, 2008 WL 2639757, at 2 n. 3 (Tex.App.-Fort Worth July 3, 2008, no pet.) (mem.op.) (top of notice to vacate stated “CERTIFIED MAIL, RETURN RECEIPT REQUESTED” and “FIRST CLASS REGULAR MAIL,” which constituted evidence that the notice was mailed both by certified mail and regular mail).

25 court. 39 A justice court or county court at law is not deprived of jurisdiction in a

forcible detainer action merely because of the existence of a title dispute. 40 Indeed,

in most cases the right to immediate possession can be determined separately from

the right to title. 41 The trial court is deprived of jurisdiction only if the

determination of the right to immediate possession necessarily requires the

resolution of the title dispute. 42

Where a foreclosure pursuant to a deed of trust establishes a landlord and

tenant-at-sufferance relationship between the parties, the trial court has an

independent basis to determine the issue of immediate possession without

resolving the issue of title to the property. 43

In this case, as stated above, the foreclosure pursuant to the deed of trust

created a landlord and tenant-at-sufferance relationship between Appellant and

FREO. Thus, it was not necessary for the trial court to resolve the title dispute to

determine the right of immediate possession.

As evidenced by trustee foreclosure deed, FREO acquired the Property at a

foreclosure sale on November 04, 2014. (C.R. 43-45). Pursuant to the terms of the

Deed of Trust, Johnson, or any person holding possession of the Property through

39 Villalon v. Bank One, 176 S.W.3d 66, 69 (Tex.App.-Houston [1st Dist.] 2004, pet. denied). 40 See Id. at 712. 41 Id. at 710. 42 Id. at 712. 43 Id.

26 Johnson, became tenants at sufferance once the Property was sold at the

foreclosure sale. (C.R. 45-55; Sec. 18, Par. 4).

The holding in Villalon and Dormady govern the outcome of this appeal.

FREO made a showing that: (1) it is the owner of the property by virtue of a

substitute trustee's deed; (2) Appellant is a tenant at sufferance; and (3) FREO has

the superior right to immediate possession. Because the landlord-tenant

relationship provides a basis for determining the right to immediate possession

without resolving the ultimate issue of title to the property, the issues of title and

possession are not necessarily intertwined, and the forcible detainer action could be

prosecuted concurrently with the title dispute in district court. See Bruce v. Fed.

Nat'l Mortg Ass'n, 352 S.W.3d 891, 893–94 (Tex.App.—Dallas 2011, pet. denied)

(holding county court had jurisdiction where deed of trust contained a provision

creating a landlord-tenant relationship in the event of a foreclosure sale).

CONCLUSION

In this case Appellee submitted, and the court admitted, proper and sufficient

evidence to demonstrate FREO’s entitlement to immediate possession of the

Subject Property. Appellee purchased the Subject Property at a foreclosure sale

held pursuant to the terms of a Deed of Trust executed by Appellant. By way of

his own written agreement Appellant is a tenant at sufferance and Appellee is

entitled to obtain a prompt determination of its right to immediate possession of the

27 Subject Property by filing its suit for forcible detainer. Importantly, to prevail on

its forcible detainer action Appellee was not required at trial to prove title, but was

only required showing sufficient evidence of ownership to demonstrate a superior

right to immediate possession. The trial court appropriately granted judgment in

favor of Appellee on the grounds that Appellee had a lawful right to immediate

passion of the subject property under Chapter 24 of the Texas Property Code and

other relevant Texas law.

PRAYER

For these reasons, Appellee FREO respectfully requests that this Honorable

Court affirm the judgment of the trial court. Appellee also requests any other relief,

at law or in equity, to which it may be entitled.

28 Respectfully Submitted,

JACK O’BOYLE & ASSOCIATES

/s/ Travis H. Gray Travis H. Gray SBN 24044965 P.O. Box 815369 Dallas, Texas 75381 Phone: 972.247.0653 Fax: 972.247.0642 travis@jackoboyle.com Attorneys for Appellee FREO Texas LLC, A Delaware Limited Liability Company

29 CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing has been served on the

following counsel and/or pro se parties of record, in accordance with Texas Rule of

Appellate Procedure 9.5, on the date shown.

Dated: September 14 2015

L. Mickele’ Daniels Arena Tower One, Suite 580 7322 Southwest Freeway Houston, TX 77074 P: 713.995.4681 F: 713.995.4685 E: seminole85@peoplepc.com Counsel for Appellant Jennie Larry Johnson

/s/ Travis H. Gray Travis H. Gray

30 CERTIFICATE OF COMPLIANCE

I certify that this document was produced using Microsoft Word 2010 and

Adobe Acrobat X and contains 4,863 words, as determined by the computer’s

software word-count function, excluding the sections of the document listed in

Texas Rules of Appellate Procedure 9.4(i)(1).

Dated: September 14 2015

/s/ Travis H. Gray Travis H. Gray

(A) JUDGMENT OF POSSESSION

(B) OPINION IN MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,

INC. V. KNIGHT

32 A •

CAUSE NO. 15-CCV-054223

FREO TEXAS, LLC A DELAWARE § IN THE COUNTY CIVIL COURT LIMITED LIABILITY COMPANY §

v. § AT LAW NUMBER THREE (3) § JENNIE LARRY JOHNSON § and/or All Occupants of § 1907 Doliver Circle § Missouri City, Texas 77489 § FORT BEND COUNTY, TEXAS

FINAL JUDGMENT

On the 27'" day of January, 2015, came on to be heard the above-entitled and -numbered

cause wherein FREQ TEXAS, LLC A DELAWARE LIMITED LIABILITY COMPANY is the

Plaintiff, and JENNIE LARRY JOHNSON and/or All Occupants of I 907 Do liver Circle, Missouri

City, Fort Bend County, Texas 17489, are the Defendants.

The Plaintiffs appeared by their local counsel William D. Kee, III, Attorney at Law, and

.--- Tire Defendant failed to apperu, OR

./ The Defendant appeared in person and announced ready for trial; OR

Tke Qefemlaat app@ared in p9rson and through attorney,

!Ille! amm anced ready for tdal.

The Court finds that notice of trial setting was served on Defendant in accordance with

Rule 2la.

Citation was served according to law and returned to the clerk where it remained on file for

the time required by law. The Court, having read the pleadings and the papers on file, and having

heard the evidence presented, is of the opinion that the allegations of the Plaintiffs' petition are true

and that Plaintiff is entitled to a judgment for possession.

65 IT IS THEREFORE, ORDERED, ADJUDGED, AND DECREED that Plaintiff, FREO

TEXAS, LLC A DELAWARE LIMITED LIABILITY COMP ANY, is awarded judgment against

Defendants, JENNIE LARRY JOHNSON and/or All Occupants. for possession of the property

located at 1907 Doliver Circle, Missouri City, Fort Bend County, Texas 77489, and that a Writ of

Possession issue to the proper officer commanding him to seize possession of said premises and

deliver same to Plaintiff after said Writ of Possession has been duly filed by Plaintiff if Defendants

have not vacated the herein described premises by f .z h1.;'"' 'J I( '2015.

II' IS FURI'HER ORDERED that the supersedeas bond 1s hereby set m the amount of

$_"'\v~1..,.1 ~'k~"~'J_._1~i'D~---- and shall be in the form of cash, cashier's check or corporate surety

licensed by and authorized to do business in the State of Texas for such purposes.

All costs of court are hereby taxed agamst the party by whom mcurred, for all of which let

execution issue.

Plaimiff is allewed stteh writs and prneesses as may be neeessary in the enforeement and

collection of this judgment.

All relief not expressly granted herein is denied.

FILED FOR RECO N O - TIME......,,,t;-~.'~:

FILED FOR RECOR NQ _ _ TIME___,~

66 B Mortgage Electronic Registration Systems, Inc. v. Knight, Not Reported in S.W.3d (2006)

The events pertinent to this appeal began with Lorie H. Knight's purchase of real property in Montgomery County, 2006 WL 510338 Texas. Knight purchased the property with the proceeds of Only the Westlaw citation is currently available. a loan from Mortgage Electronic Registration Systems, Inc. SEE TX R RAP RULE 47.2 FOR (“MERS”), and she secured her loan with a deed of trust. DESIGNATION AND SIGNING OF OPINIONS. Knight defaulted on the loan and MERS foreclosed as allowed by the deed of trust. After purchasing the property at the MEMORANDUM OPINION substitute trustee's sale, MERS sent Knight written notice to Court of Appeals of Texas, vacate the premises, but Knight failed to do so. Beaumont. Subsequently, MERS sued Knight and all occupants, seeking MORTGAGE ELECTRONIC possession of the premises. The justice court entered a default REGISTRATION SYSTEMS, INC., Appellant judgment against Knight and “all occupants” and awarded v. possession of the premises to MERS. Knight appealed the Lorie H. KNIGHT, Appellee. judgment to the county court at law and it awarded possession of the premises to her. 1 No. 09-04-452 CV. | Submitted Oct. 10, 2005. | Decided March 2, 2006. 1 No appeal was brought by any occupants other than | Rehearing Overruled April 20, 2006. Knight. On Appeal from the County Court at Law No. 2, Montgomery On appeal from the judgment in county court, MERS brings County, Texas, Trial Cause No. 04-18,044; Jerry Winfree, two issues. We begin our review with the second issue as Judge. its resolution is determinative of this appeal. The second issue attacks the legal and factual sufficiency of the evidence Attorneys and Law Firms supporting the county court's judgment in Knight's favor. As Thomas D. Pruyn, Brown & Shapiro, LLP, Pasadena, for Knight did not file an appellate brief, we have no response appellant. opposing issue two's arguments.

William H. Piper, Boyd, Munoz & Piper, Conroe, for appellee. Forcible Detainer Before McKEITHEN, C.J., KREGER, and HORTON, JJ. “A forcible detainer action is a special proceeding governed by particular statutes and rules.” Rice v. Pinney, 51 S.W.3d 705, 709 (Tex.App.-Dallas 2001, no pet.). The proceeding MEMORANDUM OPINION exists “to provide a speedy, simple, and inexpensive means for resolving the question of the right to possession of HOLLIS HORTON, Justice. premises.” Id. The Texas Property Code allows forcible *1 This appeal arises from a forcible detainer action initiated detainer actions against persons (often tenants) who refuse to in justice court by a lender. The justice court determined that surrender possession of real property when demanded to do the lender, who had foreclosed on real property pursuant to so by one entitled to possession. See Tex. Prop.Code Ann. §§ a deed of trust, was entitled to possession of the property. 24.002, 24.0051, 24.0061 (Vernon 2000 & Supp.2005). The borrower appealed to county court, which found that the borrower was entitled to possession. The lender brings this Our procedural rules highlight the action's limited purpose; appeal. We reverse and render judgment in favor of the lender. Rule 746 provides that the “only issue” in a forcible detainer action is “the right to actual possession; and the merits of the title shall not be adjudicated.” Tex.R. Civ. P. 746. Thus, the sole question for the trial court is who has the Background right to immediate possession of the property. See Villalon v. Bank One, 176 S.W.3d 66, 70 (Tex.App.-Houston [1st

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Mortgage Electronic Registration Systems, Inc. v. Knight, Not Reported in S.W.3d (2006)

Dist.] 2004, pet. denied); Ward v. Malone, 115 S.W.3d 267, and intestacy statutes because “title necessarily 270 (Tex.App.-Corpus Christi 2003, pet. denied); Dormady involved”); [American Spiritualist Ass'n v.] Ravkind, v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555, 557 313 S.W.2d [121,] 125 [ (Tex.Civ.App.-Dallas 1958, (Tex.App.-San Antonio 2001, pet. dism'd w.o.j.). writ ref'd n.r.e.) ] (no jurisdiction when right to possession depended on disputed compliance with “contract to purchase”). In a forcible detainer action, the law requires the plaintiff to Rice, 51 S.W.3d at 713. introduce sufficient evidence of ownership to show a superior right to immediate possession; the plaintiff, however, does not A forcible detainer action is not an exclusive remedy and is have to prove that he holds title to the property. See Rice, 51 cumulative of other remedies. Scott v. Hewitt, 127 Tex. 31, S.W.3d at 709. For example, a superior right to possession 90 S.W.2d 816, 818-19 (1936); Villalon, 176 S.W.3d at 70. may occur in the context of a landlord-tenant relationship A party who loses possession in a detainer action may sue in arising after a foreclosure sale under a deed of trust. See the district court to decide who has legal title to the property. Villalon, 176 S.W.3d at 71. A deed of trust may establish a Scott, 90 S.W.2d at 818; Villalon, 176 S.W.3d at 70. Also, landlord-tenant relationship between the buyer at foreclosure a party may bring a separate detainer action in justice court and the current possessor of the property, as it does here. and prosecute it concurrently with a suit to try title pending See id. Though the possessor may question the validity of in district court. Villalon, 176 S.W.3d at 70-71. a foreclosure sale and the quality of the buyer's title, the court hearing a forcible detainer action retains the power to decide which of the parties is entitled to the immediate right Standard of Review of possession. Id. When reviewing the legal sufficiency of the evidence, we *2 An exception to the court's forcible detainer jurisdiction “view the evidence in the light most favorable to the verdict, may occur, however, when the title issue is “so intertwined” crediting favorable evidence if reasonable jurors could, with the possession issue that “possession may not be and disregarding contrary evidence unless reasonable jurors adjudicated without first determining title.” Dormady, 61 could not.” City of Keller v. Wilson, 168 S.W.3d 802, 807 S.W.3d at 557. Still, this exception to the justice court's (Tex.2005). Legally insufficient evidence or “no evidence” jurisdiction occurs “only when the justice or county court of a vital fact exists when (a) the record contains a complete must determine title issues....” Rice, 51 S.W.3d at 713. 2 absence of evidence of a vital fact; (b) rules of law or rules of evidence bar the court from giving weight to the only 2 evidence offered to prove a vital fact; (c) the evidence offered As shown below, the Rice Court collected cases to prove a vital fact is no more than a mere scintilla; or (d) illustrating when the necessity of determining title the evidence conclusively establishes the opposite of the vital deprives the justice or county court of jurisdiction in a forcible detainer action: fact. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d See, e.g., Guyer v. Rose, 601 S.W.2d 205, 706, 711 (Tex.1997). If someone attacks the legal sufficiency 205-206 (Tex.Civ.App.-Dallas 1980, writ ref'd n.r.e.) of an adverse finding on an issue for which he has the burden (enjoinder of forcible detainer suit proper when of proof, and if there is no evidence to support the finding, we right to possession depended on compliance with review all the evidence to decide whether the record shows contract for sale); Gentry v. Marburger, 596 S.W.2d that the party attacking the finding established the contrary 201, 203 (Tex.Civ.App.-Houston [1st Dist.] 1980, proposition as a matter of law. See Dow Chem. Co. v. Francis, writ ref'd n.r.e.) (justice court without jurisdiction 46 S.W.3d 237, 241 (Tex.2001). when possession based on assertion of life estate or adverse possession because “title to premises The county court did not issue any findings of fact or was directly involved”); Rodriguez [v. Sullivan], 484 conclusions of law regarding its determination that Knight S.W.2d [592,] 593 [ (Tex.Civ.App.-El Paso 1972, no was entitled to possess the property. Thus, we infer all writ) ] (justice court judgment void when possession depended on construction of real estate “purchase-sale necessary facts to support the trial court's ruling if the contract”); Dent v. Pines, 394 S.W.2d 266, 268-69 evidence supports the inferred facts. BMC Software Belgium, (Tex.Civ.App.-Houston [1st Dist.] 1965, no writ) N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.2002). However, (justice court without jurisdiction when possession if “the appellate record includes the reporter's and clerk's required resolution of claims under competing wills records, these implied findings are not conclusive and may be

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Mortgage Electronic Registration Systems, Inc. v. Knight, Not Reported in S.W.3d (2006)

challenged for legal and factual sufficiency in the appropriate county court had jurisdiction to decide whether MERS was appellate court.” Id. entitled to “immediate possession” without also determining whether MERS wrongfully foreclosed against Knight, an After admitting documentary evidence and hearing counsels' issue directly related to property title. See id. Even if MERS arguments, the county court determined that Knight was prevailed on its forcible detainer action, Knight retains the entitled to possession. In support of her request for right to pursue a wrongful foreclosure action in district court. possession, Knight offered only one document-a certified See id. at 558. copy of a petition filed in district court by many home-buyer plaintiffs, including Knight, against many mortgage-lender 3 Other allegations included deceptive trade practices, defendants. However, the named defendants did not include common law fraud, negligence, and usury. MERS. At the hearing, Knight's attorney asserted that MERS We find that a reasonable fact-finder could not resolve the was “being served now,” but did not offer a copy of the disputed issues of fact in Knight's favor based solely on the citation the court issued against MERS. certified copy of the plaintiffs' petition. The evidence offered by Knight does not show that the court lacked jurisdiction *3 The county court admitted the certified plaintiffs' petition in MERS's forcible detainer action against Knight. Further, as proof that there was “a lawsuit pending in District Court on we have reviewed the clerk's and reporter's records and find the legality of the foreclosure.” Knight's attorney argued that no evidence that would support the award of possession to entitlement to possession involves “title.” During the trial, Knight. Knight's attorney asked the court “to enforce the law which says that this Court has no subject matter [ ] jurisdiction Next, we review all of the evidence to decide whether pending the outcome of that other trial, and [ ] therefore to MERS established the contrary proposition-that it is entitled abate the proceeding until that time.” to possession-as a matter of law. See Francis, 46 S.W.3d at 241. For MERS to prevail and obtain possession in its forcible After hearing arguments from both sides, the court stated that detainer action against Knight, the law requires MERS to in similar cases, it granted requests to abate cases pending show that: (1) the substitute trustee conveyed the property by resolution by the district court of the title question and would deed to MERS after the foreclosure sale; (2) the deed of trust do so here unless MERS “chooses that I find in favor of the signed by Knight established a landlord-tenant relationship Defendant.” The court informed MERS that it could either between MERS and Knight; (3) MERS gave proper notice acquiesce in the court's abatement of the detainer action, to Knight that it required her to vacate the premises; and pending resolution of the district court case, or suffer an award (4) Knight refused to vacate the premises. Tex. Prop.Code by the court of possession to Knight so that MERS could Ann. §§ 24.002(a)(2), 24.002(b), 24.005 (Vernon 2000); see appeal. MERS asked for twenty-four hours to decide. The Villalon, 176 S.W.3d at 71; Dormady, 61 S.W.3d at 558. record shows that the court ultimately awarded possession to Knight. *4 As no witnesses testified for either party, the evidence supporting MERS's position consists of the attorneys' While plaintiffs' allegations in the district court case stipulations and certain documents that the court admitted included one of wrongful foreclosure, 3 Knight's pending into evidence as well. The stipulation of Knight's attorney wrongful foreclosure suit does not deprive the county provided evidence of Knight's possession of the property and court of jurisdiction. See Villalon, 176 S.W.3d at 71. To her refusal to vacate. Counsel agreed that Knight bought affect the county court's jurisdiction of the detainer action the property, was a homeowner there, and still occupied the under these circumstances, the district court lawsuit must premises. 4 involve a question of title “so intertwined with the issue of possession” that the county court could not determine 4 During the proceedings, the court requested that the possession without first determining title. Dormady, 61 S.W.3d at 557. MERS's forcible detainer action does not attorneys listen “carefully” to its recitation of facts and determine if the parties could stipulate to those facts. The necessarily require a determination of title. Here, as in court stated: Villalon, a landlord-tenant relationship resulting from the Defendant homeowner bought a lot, financed the foreclosure sale arose between MERS and Knight. Because purchase with a loan from the Plaintiff. Plaintiff MERS and Knight had a landlord-tenant relationship, the probably signed a deed of trust or a mortgage or

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Mortgage Electronic Registration Systems, Inc. v. Knight, Not Reported in S.W.3d (2006)

something .... The ... Defendant homeowner probably sufferance.” Second, the substitute trustee's deed established defaulted in their payments. The Plaintiff foreclosed that MERS was entitled to possession of the property. The their deed of trust, their mortgage. The Defendant substitute trustee conveyed the property by deed to MERS homeowner then filed a lawsuit in District Court, after it purchased the property at the foreclosure sale. Finally, which is still pending, challenging the legality of the notice to vacate provided proof of proper notice to the foreclosure. And the Defendant still occupies the Knight that MERS required her to vacate the premises. See premises. (Emphasis added.) Tex. Prop.Code Ann. §§ 24.002(b); 24.005 (Vernon 2000). Knight's attorney agreed that the trial court correctly Nothing in the record controverts these three legal documents. stated the facts and MERS's attorney agreed that the Thus, on this record, MERS established its entitlement to trial court had not omitted any facts. possession as a matter of law. MERS further relied on three documents: (1) a certified copy of the deed of trust; (2) a certified copy of the substitute We find the evidence is legally insufficient to support trustee's deed; and (3) a copy of the certified notice to the award of possession to Knight and find that MERS vacate sent to Knight. First, the deed of trust signed by established as a matter of law that it is legally entitled to Knight established a landlord-tenant relationship between possession of the premises. We find the county court erred in MERS and Knight. The deed of trust required Knight, or awarding possession to Knight. Accordingly, we reverse the any person holding possession through her, to “immediately court's judgment and render judgment that MERS is entitled surrender possession of the Property to the purchaser at to possession. [the foreclosure] sale.” The deed of trust further provided that failure to surrender possession would cause Knight, REVERSED AND RENDERED. or anyone possessing through her, to become a “tenant at

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4