Mekeel v. U.S. Bank National Ass'n ex rel. Holders of the CSFB Mortgage Pass-through Certificates

355 S.W.3d 349, 2011 Tex. App. LEXIS 6776, 2011 WL 3715936
CourtCourt of Appeals of Texas
DecidedAugust 24, 2011
DocketNo. 08-10-00122-CV
StatusPublished
Cited by23 cases

This text of 355 S.W.3d 349 (Mekeel v. U.S. Bank National Ass'n ex rel. Holders of the CSFB Mortgage Pass-through Certificates) 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
Mekeel v. U.S. Bank National Ass'n ex rel. Holders of the CSFB Mortgage Pass-through Certificates, 355 S.W.3d 349, 2011 Tex. App. LEXIS 6776, 2011 WL 3715936 (Tex. Ct. App. 2011).

Opinion

OPINION

ANN CRAWFORD McCLURE, Justice.

Edward Mekeel and/or all other occupants (Mekeel) appeal from the ruling in a forcible detainer action granting possession of the property at issue to U.S. Bank. Mekeel contends in four issues that the trial court erred in rendering judgment for the Bank because: (1) its pleading is invalid; (2) the notice to vacate and demand for possession failed to comply with the Texas Property Code; (3) the substitute trustee’s deed was insufficient to support a prima facie claim of title; and (4) there was no evidence that Mekeel continued to occupy the property after the Bank demanded that he vacate. For the reasons that follow, we affirm.

FACTUAL SUMMARY

In May 2000, Edward Mekeel and his wife executed a deed of trust granting Washington Mutual Bank a first lien security interest in real property located at 6405 Hampton Court, The Colony, Texas, 75056. The deed of trust included the following provision:

If the Property is sold pursuant to this paragraph 21, [Mekeel] or any person holding possession of the Property through [Mekeel] shall immediately surrender possession of the Property to the purchaser at that sale. If possession is not surrendered, [Mekeel] or such per[352]*352son shall be a tenant at sufferance and may be removed by writ of possession.

Mekeel defaulted and on August 4, 2009, the property was sold at a non-judicial foreclosure sale. On that date, a substitute trustee’s deed was executed conveying the property to U.S. Bank. Select Portfolio Servicing, Inc., the mortgage servicer for the Bank, sent a notice letter to Mek-eel demanding he vacate the property.

On August 28, 2009, Select Portfolio filed a petition for forcible detainer in the justice court of Denton County, Texas. After a contested hearing, the court entered judgment for Select Portfolio, granting them immediate possession of the property. Mekeel appealed and on October 12, 2009, the case was tried de novo before the county court at law. The Bank introduced three exhibits. Exhibit 1 consisted of the substitute trustee’s deed, verified and signed by the substitute trustee, Russell Stockman. Attached to the substitute trustee’s deed was: (1) an affidavit signed by Mary Cocheu; and (2) the Notice of Trustee’s Sale, signed by Stockman as substitute trustee on July 13, 2009, which identified U.S. Bank as the note-holder and Select Portfolio as the mortgage servicer. Exhibit 2 was the notice to vacate and demand for possession, dated August 12, 2009, and sent on behalf of Select Portfolio, the servicing agent. Exhibit 3 was the deed of trust signed by Mekeel in May 2000. That same day the county court issued its judgment granting Select Portfolio immediate possession of the property. On November 25, 2009, Mekeel filed an unopposed motion for new trial, which was granted. The Bank then filed amended pleadings.

On January 20, 2010, the county court at law tried the case a second time. The day before, Mekeel filed a motion to strike the Bank’s amended pleading and a plea in abatement and answer subject to the plea. The motion to strike alleged that the case should be dismissed because the original pleadings identified Select Portfolio as the owner of the property when in fact it was not. Therefore, according to Mekeel, Select Portfolio did not have standing and dismissal was required. The plea in abatement claimed that the original petition was not properly verified because the Bank’s attorney did not attest that he had actual personal knowledge of the factual allegations contained within the Petition for Forcible Detainer. The plea in abatement also attacked the affidavit attached to the substitute trustee’s deed, claiming it was insufficient to support a prima facie claim of title. No ruling on these pleadings appears in the record.

During the second trial, the Bank presented the same three exhibits. Once again the court rendered judgment granting the Bank immediate possession. This appeal follows.

FORCIBLE DETAINER

A forcible detainer action is designed to determine the right to immediate possession of real property where there is no claim of unlawful entry. Williams v. Bank of New York Mellon, 315 S.W.3d 925, 926 (Tex.App.-Dallas 2010, no pet.); Rice v. Pinney, 51 S.W.3d 705, 709 (Tex.App.-Dallas 2001, no pet.). Under Texas law, a tenant who refuses to surrender possession of the subject property on demand commits a forcible detainer. Tex. Prop.Code Ann. § 24.002(a)(West 2000).

A forcible detainer action is intended to be a speedy, simple, and inexpensive means to obtain immediate possession of property. Marshall v. Housing Authority of the City of San Antonio, 198 S.W.3d 782, 787 (Tex.2006); Scott v. Hewitt, 127 Tex. 31, 90 S.W.2d 816, 818-19 (1936). The only issue is the right to actual possession, and the merits of title [353]*353shall not be adjudicated. See Tex.R.Civ.P. 746; Williams, 315 S.W.3d at 927; Cattin v. Highpoint Village Apartments, 26 S.W.3d 737, 738-39 (Tex.App.-Fort Worth 2000, pet. dism’d w.o.j.). Even if a title dispute exists, when the deed of trust establishes a landlord-tenant relationship at sufferance, the relationship provides an independent basis for determining the right to immediate possession without resolving the ultimate issue of title to the property. Dormady v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555 (Tex.App.-San Antonio 2001, pet. dism’d w.o.j.).

To prevail in a forcible detainer action, a plaintiff is not required to prove title, but is only required to present sufficient evidence of ownership to demonstrate a superior right to immediate possession of the premises. Gibson v. Dynegy Midstream Services, L.P., 138 S.W.3d 518, 522 (Tex.App.-Fort Worth 2004, no pet.); Rice, 51 S.W.3d at 709. In fact, whether a sale pursuant to a deed of trust is invalid may not be determined in a forcible detainer action. Id.

On appeal, Mekeel brings four issues challenging the judgment for possession. In Issue One, he claims the affidavit attached to the amended petition is deficient. In Issues Two and Three, he contends that the Bank failed to comply with the Texas Property Code. Finally, in Issue Four, he complains there is no evidence to prove he continued to occupy the property after the Bank demanded possession.

Validity of the Pleadings

In Issue One, Mekeel argues that the petition for forcible detainer was not a valid pleading. Initially we note that objections to pleadings — including objections to an affidavit based on the affiant’s knowledge, information, and belief, when objectionable in form — must be raised prior to trial. Mekeel counters that because the pleading is not a valid pleading on which judgment could be granted, he was not even required to file an answer. He also argues that the defect is jurisdictional and may be raised at any time. We disagree.

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Bluebook (online)
355 S.W.3d 349, 2011 Tex. App. LEXIS 6776, 2011 WL 3715936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mekeel-v-us-bank-national-assn-ex-rel-holders-of-the-csfb-mortgage-texapp-2011.