Affirmed and Opinion Filed May 26, 2022
In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01227-CV
RODOLFO ESPINOSA LUA AND ANEL LUA, Appellants V. CAPITAL PLUS FINANCIAL, LLC, Appellee
On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-19-02051-C
OPINION Before Justices Osborne, Pedersen, III, and Nowell Opinion by Justice Osborne Rodolfo Espinoza Lua and Anel Lua appeal the trial court’s final judgment in
a forcible-detainer action in favor of Capital Plus Financial, LLC. The Luas raise
five issues on appeal arguing the county court erred because: (1) the presuit notice
to vacate was defective; (2) defects in the foreclosure sale deprived Capital Plus of
standing to pursue its claim for possession; and (3)–(5) (a) the trial court abused its
discretion when it admitted Capital Plus’s evidence and (b) Capital Plus offered no
evidence to show (i) the trustee’s deed is entitled to a presumption of validity so it
cannot be considered as evidence of Capital Plus’s superior right to possession,
(ii) its ownership of the property, or privity with the Luas which would allow Capital Plus to use the deed’s tenancy-at-sufferance clause to dispossess them of the
property, and (iii) the Luas’ continued occupancy of the subject property. The
county court’s judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND On February 28, 2017, the Luas executed a deed of trust to secure payment of
an extension of credit concerning real property. The security agreement provided
that, in the event of default, the lender could require immediate repayment of all
sums under the terms of the loan and invoke the power of sale. It also authorized
the foreclosure sale of the property to the highest bidder and permitted purchase of
the property by the lender or its designee. In addition, the security instrument stated
that, if the property was sold at a foreclosure sale, the Luas would immediately
surrender the property to the purchaser. However, if the Luas did not surrender
possession, they would become tenants at sufferance and could be removed by writ
of possession or other court proceeding.
The Luas defaulted, and the mortgage servicer initiated foreclosure
proceedings. On December 4, 2018, Capital Plus acquired the property at a non-
judicial foreclosure sale. On February 5, 2019, through its legal counsel, Capital
Plus sent written notice to vacate and demand for possession of the property to the
Luas.
Capital Plus filed an original petition for eviction in justice court (trial court
cause no. JE-1900284E). After a bench trial, the justice court signed a judgment in
–2– favor of Capital Plus for possession of the property and noted that the Luas had failed
to answer or deny the suit. The Luas appealed the justice court’s judgment to the
county court (trial court cause no. CC-19-02051-A) for a trial de novo.1
During a bench trial before the county court, Capital Plus offered three
exhibits to support its claim for possession: (1) a trustee’s deed documenting Capital
Plus’s purchase of the property at a foreclosure sale and the transfer of the deed of
trust to Capital Plus; (2) a notice to vacate addressed to the Luas and dated February
5, 2019, sent by Capital Plus’s legal counsel; and (3) a deed of trust documenting
the security interest. These documents were admitted into evidence without
objection. The county court judge rendered judgment in favor of Capital Plus and
signed written findings of fact and conclusions of law.
II. PRESUIT DEMAND
In issue one, the Luas argue the presuit notice to vacate was defective. They
contend that under the language of the statute, only Capital Plus could have properly
sent them the notice and the actions of Capital Plus’s attorney do not suffice. The
Luas maintain that Texas Property Code §§ 24.002(b) and 24.005 limit the types of
parties who may send the notice to vacate. As a result, they argue that only a demand
sent by Capital Plus would be sufficient.
1 See TEX. R. CIV. P. 510.10(c). –3– A. Applicable Law
In a suit involving a tenant at will or tenant by sufferance, § 24.005(b) requires
the plaintiff to give the tenant written notice to vacate three days before the plaintiff
files a forcible-detainer suit unless the parties contracted for a different notice period.
TEX. PROP. CODE ANN. § 24.005(b); see also Howard v. U.S. Bank Nat’l Ass’n as
Trustee of OWS REMIC Tr. 2013-1, No. 05-19-00315-CV, 2020 WL 3786215, at *2
(Tex. App.—Dallas July 7, 2020, pet. denied) (mem. op.). The demand for
possession must be made in writing by a person entitled to possession of the
property. PROP. § 24.002(b); see also Howard, 2020 WL 3786215, at *2. The Texas
Property Code does not forbid a corporation or other business entity from using an
agent to deliver demand for possession. Howard, 2020 WL 3786215, at *2. This
sort of agency arrangement is approved and contemplated by the governing rules for
this type of suit, which recognize that “in an eviction case,” a corporation may “be
represented by a property manager or other authorized agent.” TEX. R. CIV. P.
500.4(b)(2); see also Howard, 2020 WL 3786215, at *2. Written demand for
possession by a corporation’s or business entity’s property manager or other
authorized agent is sufficient to satisfy the requirement in § 24.005 of the Texas
Property Code that the demand for possession be made in writing by a person entitled
to possession of the property. Howard, 2020 WL 3786215, at *2.
–4– B. Application of the Law to the Facts
We construe the Luas’ argument to challenge the following finding of fact
made by the county court:
8. The [county] [c]ourt f[inds] that the notice requirements under the Property Code were met by [Capital Plus] by sending the 3[- ]day letter dated February 5, 2019 to the [Luas] prior to [Capital Plus] filing the eviction suit, and the [county] [c]ourt admitted said letter into evidence without objection.
Also, we construe the Luas’ argument to challenge the following conclusions of law
by the county court:
7. The [county court] applied Texas Property Code [§] 24.005.
8. The [county court] applied Texas Property Code [§] 24.002.
The Luas do not contend that they did not receive a notice to vacate or deny
that they refused to vacate the premises. Rather, they claim that the notice to vacate
was inadequate under the statute because it was sent by Capital Plus’s attorney. The
record shows that the notice to vacate was sent by a law firm representing Capital
Plus. This sort of agency arrangement is approved and contemplated by the
governing rules for this type of suit, which recognize that “in an eviction case,” a
corporation may “be represented by a property manager or other authorized agent.”
TEX. R. CIV. P. 500.4(b)(2); see also Howard, 2020 WL 3786215, at *2. Here, the
law firm stated in the demand that it was representing Capital Plus. We considered—
and rejected—this identical argument in Howard, 2020 WL 3786215, at *2.
–5– Accordingly, we conclude that Capital Plus acted properly through its law firm in
sending the presuit demand.
The Luas also argue that the foreclosure sale was void because the foreclosure
violated a temporary restraining order (TRO). This argument fails because: (1) the
TRO is from a different proceeding and is not in the appellate record; and (2) defects
in the foreclosure process cannot be considered in a forcible-detainer action. See
Howard, 2020 WL 3786215, at *3. A copy of a TRO is attached to the Luas’ brief,
but we cannot consider attachments not included in the appellate record. See Pitts
v. Bank of N.Y. Mellon Tr. Co., Nat’l Ass’n, 622 S.W.3d 596, 599 (Tex. App.—
Dallas 2021, no pet.).
Issue one is decided against the Luas.
III. JURISDICTION
In issue two, the Luas argue that: (1) defects in the foreclosure sale deprived
Capital Plus of standing to pursue its claim for possession;2 and (2) the county court
judge erred in hearing the case and rendering judgment because Capital Plus’s
petition for eviction was not a valid pleading on which judgment could have been
granted because it was not sworn to by Capital Plus. We construe the Luas’
arguments to challenge the following finding of fact made by the county court:
2 Although the Luas appear to argue standing in a jurisdictional sense, they ask us to render judgment in their favor or remand the case rather than dismiss the forcible-detainer action for want of jurisdiction. See Pike v. Tex. EMC Mgmt., L.L.C., 610 S.W.3d 763, 774 (Tex. 2020); Howard, 2020 WL 3786215, at *2 n.2. –6– 9. The [county] [c]ourt decline[s] to rule on any other pretrial or trial motions filed by the [Luas] including a plea to the jurisdiction, and the [county] [c]ourt [finds] prior to the start of the trial that the County Court at Law #3 [has] jurisdiction for this direct appeal from the justice of the peace court Precinct 2, Place 2, Dallas County, Texas.
Also, we construe the Luas’ argument to challenge the following conclusions of law
1. The [county] [c]ourt [concludes] it [has] jurisdiction over the parties and the case from a direct appeal from the Justice of the Peace Precinct 2, Place 2, Dallas County, Texas by and through an order from the County Court at Law #1 with permission of the County Court at Law #3 accepting said transfer of the appeal and holding a trial de novo on the issue of possession from a forcible detainer lawsuit.
2. The [county] [c]ourt denied any pleas to the jurisdiction filed by [the Luas] at the Justice of the Peace level.
A. Standing In the first part of issue two, the Luas claim that Capital Plus lacks standing
based on a series of dependent events. They maintain that: (1) because Capital Plus
failed to submit an affidavit verifying its observance of certain requirements prior to
the sale of the property, there are defects in the sale; (2) because there are defects in
the sale, the resulting trustee’s deed is invalid; (3) because the trustee’s deed is
invalid, Capital Plus lacks standing to prosecute its claim; and (4) because Capital
Plus lacks standing, its petition is invalid and the trial court lacks jurisdiction.
–7– 1. Standard of Review
Standing is a legal question regarding subject-matter jurisdiction, so an
appellate court conducts a de novo review of a trial court’s ruling. See In re H.S.,
550 S.W.3d 151, 155 (Tex. 2018); Howard, 2020 WL 3786215, at *3.
2. Applicable Law
To have standing, the pleader bears the burden of alleging facts that
affirmatively demonstrate the court’s jurisdiction to hear the case. Tex. Ass’n of Bus.
v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); see also Howard, 2020
WL 3786215, at *3. When the issue of standing is unchallenged, a trial court looks
solely at the plaintiff’s pleadings. Howard, 2020 WL 3786215, at *3. However,
when standing is challenged, the burden of proof is on the person whose interest is
challenged to present sufficient evidence to prove that he is an interested person. Id.
Standing is a component of subject-matter jurisdiction. Tex. Air Control Bd.,
852 S.W.2d at 445–46; see also Howard, 2020 WL 3786215, at *3. Under Texas
law, the standing inquiry requires examination of the following: (1) the plaintiff must
be personally injured—he must plead facts demonstrating that he (rather than a third
party) suffered the injury—and the injury must be concrete and particularized, actual
or imminent, not hypothetical; (2) the plaintiff’s alleged injury is fairly traceable to
the defendant’s conduct; and (3) the plaintiff’s alleged injury is likely to be redressed
by each form of requested relief. Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477,
–8– 485 (Tex. 2018); Heckman v. Williamson Cty., 369 S.W.3d 137, 154–55 (Tex. 2012);
see also Howard, 2020 WL 3786215, at *3.
3. Application of the Law to the Facts In its petition for eviction filed in the justice court, Capital Plus alleged that it
purchased the property at a public sale authorized by the deed of trust, the Luas were
given notice to vacate on December 13, 2018, and again on February 5, 2019, the
Luas are tenants at sufferance, and they have failed to surrender possession of the
property. These allegations by Capital Plus allege a concrete injury suffered
personally by the company that is fairly traceable to the Luas’ failure to vacate the
property, which would likely be resolved by the county court’s writ of possession.
See Howard, 2020 WL 3786215, at *3. Also, the following documents were
admitted into evidence during the trial before the county court: (1) a trustee’s deed
documenting Capital Plus’s purchase of the property at a foreclosure sale and the
transfer of the deed of trust to Capital Plus; (2) a notice to vacate addressed to the
Luas and dated February 5, 2019, sent by Capital Plus’s legal counsel; and (3) a deed
of trust documenting the security interest. The record reveals no defect in standing.
See id.
Further, the foreclosure defects of which the Luas complain do not relate to
standing and are not at issue in this suit. See Shields L.P. v. Bradberry, 526 S.W.3d
471, 478 (Tex. 2017); Howard, 2020 WL 3786215, at *3. The sole issue in a
forcible-detainer action is the right to immediate possession of real property. TEX.
–9– R. CIV. P. 510.3(e); Shields, 526 S.W.3d at 478; see also Howard, 2020 WL
3786215, at *3. Any defects in the foreclosure process or with the title to the
property may not be considered in a forcible-detainer action.3 Howard, 2020 WL
3786215, at *3. Those defects may be pursued in suits for wrongful foreclosure or
to set aside the trustee’s deed, but they are not relevant in a forcible-detainer action.
Id. The Luas’ allegations concerning foreclosure defects relate to the question of
which party has the right to title or damages, not standing. The existence of a quarrel
over title does not deprive the justice court, the county court, or this appellate court
of jurisdiction. See id.
The Luas rely on A Plus Investments, Inc. v. Rushton, No. 02-03-00174-CV,
2004 WL 868866 (Tex. App.—Fort Worth Apr. 22, 2004, no pet.) (mem. op.), for
the proposition that the alleged defect in the statutorily-required presuit notice
required the trial court to abate or dismiss this case. However, A Plus held that the
county court lacked jurisdiction over a forcible detainer suit “[b]ecause an
3 When there are grounds for determining immediate possession independent from title, the justice court and county court will have jurisdiction to hear the forcible-detainer action. Howard, 2020 WL 3786215, at *3 n.3. Not only can the right to immediate possession be determined separately from the right to title, but the Texas Legislature purposely established just such a system. See id. Challenges to the validity of a foreclosure sale do not deprive the justice court or county court of jurisdiction. See id. Generally, a justice court or county court is not required to determine questions of title when considering a forcible-detainer suit if the contract provides for a landlord–tenant relationship upon default, the buyer becomes a tenant by sufferance in the event of default, or the buyer is subject to a forcible-detainer suit upon default. See id. Tenant-by-sufferance clauses separate the issue of possession from the issue of title. See id. Under these provisions, a foreclosure sale transforms the borrower into a tenant by sufferance who must immediately relinquish possession to the foreclosure-sale purchaser. See id. Accordingly, if a deed of trust provides that in the event of foreclosure, the previous owner will become a tenant by sufferance if he does not surrender possession, the justice court and county court can resolve possession without resort to title. See id. –10– unresolved question of title was so intertwined with the right of possession that the
action could not have been adjudicated without first determining title.” Id. at *1.
Further, a challenge to the form of a trustee’s deed does not forestall a claim of
superior title. Rosalez v. Foson Invs., LLC, No. 02-20-00023-CV, 2021 WL
1918755, at *3 (Tex. App.—Fort Worth May 13, 2021, pet. denied) (mem. op.).
Accordingly, the defect alleged by the Luas does not present the same fundamental
issue that was present in A Plus.
We conclude the Luas have not demonstrated that Capital Plus lacked
standing to pursue its forcible-detainer action or that the courts below lacked
jurisdiction over that action. The first part of issue two is decided against the Luas.
B. Pleading Requirements In the second part of issue two, the Luas argue Capital Plus’s petition for
eviction does not meet the threshold requirement of Texas Rule of Civil Procedure
510.3 that a forcible-detainer petition be sworn to by the plaintiff. They contend that
the attorney for Capital Plus is not a party in interest, his verification is insufficient
to satisfy Rule 510.3, and, as a result, the petition was not signed in a manner that
perjury could be assigned.
1. Applicable Law
Under Texas Rule of Civil Procedure 510.3, a petition for eviction must,
among other things, be sworn to by the plaintiff. TEX. R. CIV. P. 510.3(a). An
attorney’s verification of an eviction pleading on behalf of a corporate client satisfies
–11– the requirements of Rule 510.3. See Isaac v. CitiMortgage, Inc., 563 S.W.3d 305,
312 (Tex. App.—Houston [1st Dist.] 2018, pet. denied); Lenz v. Bank of Am., N.A.,
510 S.W.3d 667, 669 (Tex. App.—San Antonio 2016, pet. denied).
Further, the requirement set out in Rule 510.3 is not jurisdictional. Wreh v.
Gianotos, No. 05-19-01213-CV, 2021 WL 2548708, at *2 (Tex. App.—Dallas June
22, 2021, pet. denied) (mem. op.); Rosas v. Chih Ting Wang, No. 05-18-01013-CV,
2019 WL 3986301, at *4–5 (Tex. App.—Dallas Aug. 23, 2019, no pet.) (mem. op.).
Accordingly, a defective verification does not deprive a county court of jurisdiction
to hear a forcible-detainer action. See Wreh, 2021 WL 2548708, at *2; Rosas, 2019
WL 3986301, at *4–5.4
2. Application of the Law to the Facts The alleged failure by Capital Plus to comply with Rule 510.3 is not
jurisdictional. See Wreh, 2021 WL 2548708, at *2; Rosas, 2019 WL 3986301, at
*4–5. As a result, the Luas were required to preserve the issue by raising it in the
county court. See Wreh, 2021 WL 2548708, at *2. The Luas do not point us to, nor
could we find where they raised this issue in the county court. Nevertheless, the
record shows that Capital Plus’s attorney swore to the eviction pleading on behalf of
his client, which satisfies the requirements of Rule 510.3. See Isaac, 563 S.W.3d at
312; Lenz, 510 S.W.3d at 669.
4 See also Isaac, 563 S.W.3d at 312; Banks v. Bank of Am., N.A., No. 03-16-00046-CV, 2017 WL 1832489, at *1 n.2 (Tex. App.—Austin May 4, 2017, no pet.) (mem. op.); Lenz, 510 S.W.3d at 669; Norvelle v. PNC Mortg., 472 S.W.3d 444, 446 (Tex. App.—Fort Worth 2015, no pet). –12– The second part of issue two is decided against the Luas.
IV. EVIDENTIARY COMPLAINTS
In issues three through five, the Luas raise two distinct arguments: (1) the trial
court erred when it admitted Capital Plus’s exhibits into evidence; and (2) the
evidence is legally insufficient to support the trial court’s findings of fact and the
county court erred in its conclusions of law because Capital Plus’s evidence was
essentially no evidence.5
A. Admission of Evidence In the first part of issues three through five, the Luas argue that the county
court abused its discretion when it admitted the following evidence: (1) the trustee’s
deed documenting Capital Plus’s purchase of the property at a foreclosure sale and
the transfer of the deed of trust to Capital Plus; (2) a notice to vacate addressed to
the Luas and dated February 5, 2019, sent by Capital Plus’s legal counsel; and (3) the
deed of trust documenting the security interest. Capital Plus responds that the Luas
failed to preserve their complaint for review because they did not object to the
admission of the evidence.
To preserve error for appellate review, a party must make his complaint to the
trial court by a timely request, objection, or motion that states the grounds for the
5 We note that the Luas do not specify whether they are challenging the legal or factual sufficiency of the evidence. However, because the Luas argue there was “no evidence” to support the judgment, we construe their issues as raising only legal sufficiency arguments. See Scott Pelley P.C. v. Wynne, 578 S.W.3d 694, 701 (Tex. App.—Dallas 2019, no pet.). –13– ruling sought with sufficient specificity to make the trial court aware of the
complaint. TEX. R. APP. P. 33.1(a)(1)(A); see also Howard, 2020 WL 3786215, at
*4.
The county court made the following findings of fact:
3. The [county [c]ourt [finds] . . . [the Trustee’s Deed] was admitted into evidence without objection.
.... 6. The [county] [c]ourt [finds] the [county] [c]ourt admitted the deed of trust into evidence without objection.
.... 8. The [county] [c]ourt [finds] . . . the [county] [c]ourt admitted [the 3-day letter dated February 5, 2019] into evidence without objection.
The record shows that the Luas did not object to the admission of this evidence.
Accordingly, the Luas have not preserved the first part of issues three through five
for appellate review. See TEX. R. APP. P. 33.1(a)(1)(A); Howard, 2020 WL
3786215, at *4.
B. Legal Sufficiency of the Evidence
In the second part of issues three through five, the Luas argue that there is no
evidence to show: (1) the trustee’s deed is entitled to a presumption of validity so it
cannot be considered as evidence of Capital Plus’s superior right to possession;
(2) Capital Plus owns the property or had privity with the Luas which would allow
Capital Plus to use the deed’s tenancy-at-sufferance clause to dispossess them of the
property; and (3) the Luas continued occupancy of the subject property. As a result, –14– they claim there is no evidence to support the trial court’s conclusion that Capital
Plus was entitled to possession of the property.
1. Standard of Review Evidence is legally insufficient to support a finding when: (1) the record bears
no evidence of a vital fact; (2) the court is barred by rules of law or of evidence from
giving weight to the only evidence offered to prove a vital fact; (3) the evidence
offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence
conclusively establishes the opposite of a vital fact. Shields, 526 S.W.3d at 480; see
also Howard, 2020 WL 3786215, at *4. When determining whether legally
sufficient evidence supports a finding, an appellate court must consider evidence
favorable to the finding if the factfinder could reasonably do so and disregard
evidence contrary to the finding unless a reasonable factfinder could not. Shields,
526 S.W.3d at 480; see also Howard, 2020 WL 3786215, at *4.
To establish a superior right to immediate possession, the person entitled to
possession has the burden to prove: (1) it owns the property; (2) the person who
refuses to surrender possession is a tenant at will, tenant at sufferance, or a tenant or
subtenant willfully holding over after the termination of the tenant’s right of
possession; (3) the person entitled to possession gave proper notice to vacate the
premises to the person refusing to surrender possession; and (4) the person refusing
–15– to surrender possession refused to vacate the premises. PROP. § 24.002; Shields, 526
S.W.3d at 478; see also Howard, 2020 WL 3786215, at *2.
3. Application of the Law to the Facts We construe the Luas’ arguments to challenge the sufficiency of the evidence
to support the following findings of fact made by the county court:
1. The [county] [c]ourt [finds] that Capital Plus [] is a limited liability company in the State of Texas that is the current owner of “the property”. . . . ....
3. The [county] [c]ourt [finds] that Capital Plus [] is the owner through the [] trustee’s deed dated December 4, 2018 after a non- judicial foreclosure was held on the first Tuesday of the Month, here, December 4, 2018, and the purchaser and current owner is Capital Plus [], and said [] Trustee’s Deed is filed under Instrument 201800316976, Dallas County Real Property Records on December 4, 2018, and which Instrument was admitted into evidence without objection. 4. The [county] [c]ourt [finds] that [the Luas] do not currently have a leasehold in the property.
5. The [county] [c]ourt [finds] that through the Deed of Trust executed by the [Luas] and filed of record in Instrument 201700059077, on February 28, 2017, Dallas County Real Property records, and the [county] [c]ourt [finds] in Paragraph 22 of that Instrument that the [Luas] are the borrowers under the deed of trust and the [Luas] are tenants at sufferance that may be removed from the property by a writ of possession if the property was sold according to the material terms of the deed of trust.
First, we address the Luas’ argument that there is no evidence to show the
trustee’s deed is entitled to a presumption of validity and, therefore, it cannot be
considered as evidence of Capital Plus’s superior right to possession. The trustee’s
–16– deed was admitted into evidence without objection. The trustee’s deed states that
“[n]otices stating the time, place and terms of the sale of the property were posted
and filed, as shown by the affidavit attached to this deed and incorporated in it by
this reference.”
In support of their argument, the Luas rely solely on Sauceda v. GMAC
Mortgage Corp., 268 S.W.3d 135 (Tex. App.—Corpus Christi–Edinburg 2008, no
pet.). But Sauceda concerned a suit for wrongful foreclosure, one element of which
is proof of a defect in the foreclosure-sale proceedings. See id. at 136, 139. As noted
above, defects in the foreclosure process are not relevant in a forcible-detainer
action. Howard, 2020 WL 3786215, at *3; see also Rosalez, 2021 WL 1918755, at
*3; Enriquez v. Capital Plus Fin., L.L.C., No. 02-19-00184-CV, 2020 WL 719441,
at *2 (Tex. App.—Fort Worth Feb. 13, 2020, no pet.) (mem. op.). Viewing the
evidence in the light most favorable to Capital Plus, we conclude the evidence is
sufficient to demonstrate Capital Plus’s superior right to possession.
Second, we address the Luas’ argument that there is no evidence to show
Capital Plus owns the property or had privity with the Luas that would allow Capital
Plus to use the deed’s tenancy-at-sufferance clause to dispossess them of the
property. Relying on § 51.002 of the Texas Property Code, they claim Capital Plus
failed to introduce evidence of authority to make presuit demand. See PROP.
§ 51.002.
–17– However, § 51.002 is not applicable to this case. That section addresses the
required notice of a foreclosure sale to be provided to the debtor prior to sale. See
id. Whether the sale of property under a deed of trust is invalid may not be
determined in a forcible-detainer action. See Greunke v. Beal Bank, SSB, No. 12-
19-00266-CV, 2020 WL 2177235, at *1 (Tex. App.—Tyler May 6, 2020, no pet.)
(mem. op.).
The record shows there was evidence that the Luas executed a deed of trust to
secure payment of an extension of credit concerning the property. After the Luas’
default, the mortgage-servicer-initiated foreclosure proceedings and the trustee’s
deed show that Capital Plus acquired the property at a non-judicial foreclosure sale,
making Capital Plus the rightful owner. Capital Plus was not required to establish
privity of contract with the Luas in relation to the deed of trust. See Rosalez, 2021
WL 1918755, at *4. It is sufficient that the trustee’s deed shows that Capital Plus
purchased the subject property at a foreclosure sale and acquired the right to enforce
the tenancy-at-sufferance clause in the deed of trust. See id. And, in this case, the
trustee’s deed gave Capital Plus a right to enforce the tenancy-at-sufferance clause
against the Luas. Viewing the evidence in the light most favorable to Capital Plus,
we conclude the evidence is sufficient to demonstrate Capital Plus’s ownership of
the property. See Howard, 2020 WL 3786215, at *4.
–18– Third, we address the Luas’ argument that there is no evidence of their
continued occupancy of the subject property. We construe the Luas’ argument to
challenge the following finding of fact by the county court:
5. [T]he [county] [c]ourt [finds that . . . the [Luas] are tenants at sufferance that may be removed from the property by writ of possession.
The record on appeal shows Capital Plus sent notice to the Luas demanding they
vacate the property and its attorney swore to the petition for eviction. In addition,
the record shows that, at the conclusion of the trial, the county court judge and
counsel for both parties discussed the amount of time Capital Plus would agree to
give the Luas to vacate the property and the amount of a monthly bond in the event
the Luas appealed the county court’s judgment. In fact, counsel for the Luas
challenged the proposed amount of the bond as being greater than the mortgage
payment and was successful in getting the amount reduced. Further, the fact that the
Luas appealed the justice court judgment depriving them of possession is some
evidence that they were in possession of the property at the time of the county-court
trial and had refused to vacate it as demanded by Capital Plus. See Rosalez, 2021
WL 1918755, at *4. Viewing the evidence in the light most favorable to Capital
Plus, we conclude the evidence is sufficient to demonstrate the Luas’ continued
occupancy of the property.
Finally, we construe the Luas’ argument to challenge the following conclusion
of law by the county court:
–19– 3. The [county] [c]ourt [concludes] that possession of the property should be granted to [Capital Plus] and [has] executed a written judgment stating [the] same.
The trial court’s findings of fact and the evidence at trial support this challenged
conclusion of law.
For all the foregoing reasons, we conclude there was legally sufficient
evidence to support the county court’s judgment and the county court did not err
when it concluded Capital Plus was entitled to possession of the property.
The second part of issues three through five are decided against the Luas.
V. CONCLUSION We affirm the county court’s final judgment.
/Leslie Osborne// 191227f.p05 LESLIE OSBORNE JUSTICE
–20– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
RODOLFO ESPINOSA LUA AND On Appeal from the County Court at ANEL LUA, Appellants Law No. 3, Dallas County, Texas Trial Court Cause No. CC-19-02051- No. 05-19-01227-CV V. C. Opinion delivered by Justice CAPITAL PLUS FINANCIAL, Osborne. Justices Pedersen, III and LLC, Appellee Nowell participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee CAPITAL PLUS FINANCIAL, LLC recover its costs of this appeal and the full amount of the trial court’s judgment from appellants RODOLFO ESPINOSA LUA and ANEL LUA and from the cash deposit in lieu of supersedeas bond.
After the judgment and all costs have been paid, we DIRECT the clerk of the county court to release the balance, if any, of the cash deposit in lieu of supersedeas bond to appellants RODOLFO ESPINOSA LUA and ANEL LUA.
Judgment entered this 26th day of May, 2022.
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