McDaniel, Jackqueline and All Other Occupants v. HSBC Bank USA, NA

Court of Appeals of Texas

McDaniel, Jackqueline and All Other Occupants v. HSBC Bank USA, NA

Court of Appeals of Texas·Decided February 6, 2013·No. 05-11-00238-CV·Published

Opinion

AFFIRM; Opinion Filed February 6, 2013.

In The nurt ut Apiiah 3fiftl! Oistrirt øf !Iixa tt flatta No. 05-1 1-00238-CV

JACKQUELINE McDANIEL, Appellant

V.

HSBC BANK USA, NA, AS TRUSTEE ON BEHALF OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST AND FOR THE REGISTERED HOLDERS OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2007-ASAPI, ASSET BACKED PASS-THROUGH CERTIFICATES, Appellee

On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-1O-O8 157-C

MEMORANDUM OPINION Before Justices Lang-Miers, Myers, and Lewis Opinion by Justice Myers Jacqueline McDaniel appeals the trial court’s judgment in favor of HSBC Bank, USA,

NA, as Trustee on Behalf of Ace Securities Corp. Home Equity Loan Trust and for the

Registered Holders of Ace Securities Corp. Home Equity Loan Trust, Series 2007-ASAPI, Asset

Backed Pass-Through Certificates, in this forcible detainer action. Appellant brings one issue

asserting the trial court erred by granting appellee possession of the premises because there was no evidence of a landlord—tenant relationship between the parties. We affirm the trial court’s

judgment.

BACKGROUND

In 2005, appellant borrowed $159,000 from Summit Funding, Inc. secured by a deed of

trust on her house, The beneficiary under the deed of trust was “MERS,” Mortgage Electronic

Registration Systems, Inc., “acting solely as a nominee for Lender and Lender’s successors and

assigns.” The deed of trust provided that if appellant defaulted, the trustee could sell the

property. The deed of trust also stated that if appellant did not surrender possession of the

property after it was sold, she “shall be a tenant at sufferance and may be removed by writ of

possession or other court proceeding.”

In 2010, the property was posted for foreclosure and was sold at public auction for

$168,900. The foreclosure sale deed stated the “Original Mortgagee” was “Mortgage Electronic

Registration Systems, Inc., as Nominee,” the “Current Mortgagee” was appellee, and the

“Buyer” was appellee. After the foreclosure auction, appellee sent appellant notice demanding

she vacate the property within three days. The notice informed appellant that appellee would file

a forcible detainer action if she did not vacate. Appellant did not vacate the property, and

appellee filed a petition for forcible detainer in the justice court. The justice court ruled that

appellee was entitled to possession of the premises. Appellant appealed the ruling to the county

court at law. After a trial de novo, the county court at law ordered that appellee have judgment

of possession of the property against appellant. Appellant appeals the county court at law’s

decision.

FORCIBLE DETAINER ACTIONS

A forcible detainer action is a procedure to determine the right to immediate possession

of real property where there was no unlawful entry. Rice v. Pinney, 51 S.W.3d 705, 709 (Tex.

-2- App.—Dallas 2001, no pet). It is intended to be a summary, speedy, and inexpensive means to

obtain possession without resort to an action on the title. Scott v. Hewitt, 90 S,W,2d 816, 8 18—19

(1936). To maintain simplicity, the applicable rule of procedure provides that “the only issue

shall be as to the right to actual possession; and the merits of the title shall not be adjudicated.”

TEx, R. CIV, P. 746. Accordingly, the only issue in a forcible detainer action is which party has

the right to immediate possession of the property. Rice, 51 S.W.3d at 709. Whether a sale of

property under a deed of trust is invalid may not be determined in a forcible detainer but must be

brought in a separate suit. Scott, 90 S.W.2d at 818—19; Rice, 51 S.W.3d at 710.

Appellant argues appellee did not introduce a deed of trust executed by appellant to show

a landlord—tenant-at-sufferance relationship existed between the parties. Appellee introduced the

deed of trust signed by appellant which stated,

If the Property is sold pursuant to this Section 22 [foreclosure and public auction], 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 or other court proceeding.

In the deed of trust, appellant was defined as “Borrower,” and the foreclosure sale deed showed

appellee was “Buyer,” or in the language of the deed of trust, “the purchaser.” When appellant

did not surrender the property, appellant became a tenant at sufferance with appellee as landlord.

Thus, appellee did introduce evidence of a landlord—tenant-at-sufferance relationship between

the parties.

Appellant argues appellee failed to show it was entitled to enforce the deed of trust

because appellee presented no evidence of a transfer of the deed of trust from Mortgage

Electronic Registration Systems, Inc. to appellee. However, the validity of a foreclosure sale

may not be determined in a suit for forcible detainer but must be brought in a separate suit.

-3- Scott, 90 S.W,2d at 818—19; Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.—

Dallas 2010, no writ).

To prevail on its forcible detainer action, appellee had to prove (1) it owned the property

by virtue of a foreclosure sale deed, (2) appellant became a tenant at sufferance when the

property was sold under the deed of trust, (3) appellee gave appellant notice to vacate the

premises, and (4) appellant refused to vacate the premises. Eiwell v. Countrywide Home Loans,

Inc., 267 S.W.3d 566, 568—69 (Tex. App.—Dallas 2008, pet. dism’d w,o.j.); see also TEx. PROP.

CODE ANN. § 24.002 (West 2000). The foreclosure sale deed showed appellee purchased the

property in a public auction after appellant was sent notice of default and an opportunity to cure.

The deed of trust showed appellant was a tenant at sufferance when appellant failed to vacate the

property after appellee purchased it. The notice to vacate informed appellant of appellee’ s

requirement that appellant vacate the property. Debra Coleman, appellee’s records custodian,

testified that appellee’s records showed the property was still occupied. This evidence was

sufficient to establish appellee’s right to immediate possession of the property. See Williams,

315 S.W.3d at 927; Elwell, 267 S.W.3d at 568—69. It was not necessary for the trial court to

determine whether the foreclosure was valid before awarding possession to appellee. Elwell, 267

S.W.3d at 569. We overrule appellant’s issue.

We affirm the trial court’s judgment.

LARS+ JUSTICE

11023 8F.P05

-4- Quurt uf Appithi JFift1 3i6trirt uf exa at DattLu JUDGMENT

JACKQUELINE McDANIEL, Appellant On Appeal from the County Court at Law No. 3, Dallas County, Texas No, 05-1 1-00238-CV V. Trial Court Cause No. CC-10-08 157-C. Opinion delivered by Justice Myers. HSBC BANK USA, NA, AS TRUSTEE ON Justices Lang-Miers and Lewis participating. BEHALF OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST AND FOR THE REGISTERED HOLDERS OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2007-ASAPI, ASSET BACKED PASS-THROUGH CERTIFICATES, Appellee

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