Sherri Clarkson, Joseph Clarkson and/or All Other Occupants of 2 Remington Court, Red Oak, TX 75154 v. Deutsche Bank National Trust Company, as Trustee of the Indymac IMSC Mortgage Trust 2007-HOA1, Mortgage Pass-Through Certificates, Series 2007-HOA1 Under the Pooling and Servicing Agreement Dated June 1, 2007

• Court: Court of Appeals of Texas
• Decided: January 20, 2011
• Docket: 07-10-00148-CV
• Status: Published

Opinion

NO. 07-10-00148-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 20, 2011

SHERRI CLARKSON, JOSEPH CLARKSON AND/OR ALL OTHER OCCUPANTS OF 2 REMINGTON COURT, RED OAK, TX 75154, APPELLANTS

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE OF THE INDYMAC IMSC MORTGAGE TRUST 2007-HOA1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-HOA1 UNDER THE POOLING AND SERVICING AGREEMENT DATED JUNE 1, 2007, APPELLEE

FROM THE COUNTY COURT AT LAW NO. 1 OF ELLIS COUNTY;

NO. 09-C3855; HONORABLE GREG WILHELM, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

OPINION

Appellants, Sherri Clarkson, Joseph Clarkson, and all other occupants of 2

Remington Court, Red Oak, Texas 75154, appeal from the ruling of the trial court in a

forcible detainer action granting possession of the property at issue to appellee,

Deutsche Bank. Appellants contend, through three issues, that the trial court erred in

granting possession to Deutsche Bank because: 1) Deutsche Bank did not comply with Texas Property Code sections 24.002 and 24.005,1 2) the deed furnished did not

support a prima facie claim of title, and 3) there was no evidence that appellants

continued to occupy the property after demand to vacate was made. We will affirm.

Factual and Procedural Background

In 2006, the Clarksons borrowed $341,500 secured by a deed of trust on the

subject property. Subsequently, in 2009, the property was posted for foreclosure.

Deutsche Bank purchased the property at public auction on July 7, 2009, and received

a substitute trustee’s deed to the property, which was subsequently filed in the deed

records of Ellis County, Texas. Deutsche Bank sent demand to vacate letters to

appellants. The letters advised appellants that they were tenants at sufferance and that

the property should be vacated within three days or a forcible detainer action would be

filed. Appellants did not vacate the property and Deutsche Bank filed suit for forcible

detainer. After a hearing, the justice court rendered judgment that Deutsche Bank was

entitled to possession of the property. Appellants appealed the ruling to the county

court at law.

The county court at law conducted a de novo trial of Deutsche Bank’s forcible

detainer action and granted possession to Deutsche Bank. Appellants appeal this

decision. We affirm.

1 See TEX. PROP. CODE ANN. §§ 24.002 (West 2000), 24.005 (West Supp. 2010). 2 Forcible Detainer

Initially, we observe that an action for forcible detainer is designed to determine

the right to immediate possession of real property where there is no claim of unlawful

entry. See Williams v. Bank of New York Mellon, 315 S.W.3d 925, 926 (Tex.App.—

Dallas 2010, no pet.). It is intended to be a speedy, simple, and inexpensive means to

obtain immediate possession of property. See Marshall v. Housing Auth. of San

Antonio, 198 S.W.3d 782, 787 (Tex. 2006). Title to the property in question is not at

issue in a forcible detainer action. See Scott v. Hewitt, 127 Tex. 31, 90 S.W.2d 816,

818-19 (1936). Accordingly, the only issue is who will have the right of immediate

possession. Williams, 315 S.W.3d at 927. In fact, whether or not a sale pursuant to a

deed of trust is invalid may not be determined in a forcible detainer action. Id.

As previously identified, appellants bring forth three issues contesting the validity

of the trial court’s judgment granting possession to Deutsche Bank. We shall answer

each in turn.

Compliance with Texas Property Code and Prima Facie Claim

Clarkson’s first two issues contend that the trial court erred because Deutsche

Bank failed to abide by the Texas Property Code in two particulars. Appellants’ first

contention is that the demand for possession was not sent by the person entitled to

possession and, further, the notice that was sent was not in the form required. See TEX.

PROP. CODE ANN. §§ 24.002, 24.005.2 Appellants next contend that the substituted

2 Further reference to the Texas Property Code will be by reference to “§ ___” or “section ___.” 3 trustee deed, through which Deutsche Bank claims title, was insufficient to support a

prima facie claim of title. This is so, according to appellants, because the deed was not

supported by an unqualified affidavit of a person with personal knowledge. See §

51.002(e) (West Supp. 2010).

At the trial de novo, Deutsche Bank introduced an exhibit C which contains

copies of the demand to vacate notices that had been sent to each of the appellants.

The demand letters were sent certified mail, return receipt requested. Each letter is

identified by a certified article number. Contained within the exhibit is a corresponding

track and confirm receipt from the United States Postal Service verifying that the

specified certified article number was, in fact, delivered to the address reflected on the

mail envelope. Additionally, the sworn petition for the detainer actions contains a sworn

averment that three days notice was given to appellants.

The amended petition for possession, that served as the basis for the judgment

in favor of Deutsche Bank, contained the affidavit of the attorney for Deutsche Bank in

which the affiant swore that he was the custodian of the records for the law firm and that

all of the records attached were maintained in the regular course of the law firm’s

business. Attached to the petition was the substitute trustee’s deed. Additionally, at the

hearing in the trial court, the substitute trustee’s deed was offered and admitted without

objection.

By attacking the notice to vacate and proof of the prima facie case to support the

forcible detainer action, appellants’ issues are actually attacking the underlying

foreclosure procedure. See Williams, 315 S.W.3d at 927. A forcible detainer action is

4 not the proper avenue to attempt such an action; rather, the Clarksons should pursue

those defects, if any, in a wrongful foreclosure action or suit to set aside the substitute

trustee’s deed.3 See Scott, 90 S.W.2d at 818-19. Here, Deutsche Bank proved up its

right of possession by presenting evidence of the foreclosure, substitute trustee’s deed,

and notice to vacate the premises. Accordingly, the trial court did not err in overruling

appellants’ objections based upon the alleged non-compliance with the provisions of the

Texas Property Code. Appellants’ first two issues are overruled.

Sufficiency of the Evidence

Appellants’ third issue argues that there was no evidence to support the

proposition that they remained on the premises after being given notice to vacate. The

refusal to leave by a tenant at sufferance after a foreclosure is one of the elements

required to be proven in a forcible detainer action. See Goggins v. Leo, 849 S.W.2d

373, 377 (Tex.App.—Houston [14th Dist.] 1993, no writ).

A no evidence challenge requires a reviewing court to review all of the evidence

in the light most favorable to the verdict, crediting favorable evidence if a reasonable

fact finder could, and disregarding contrary evidence unless a reasonable fact finder

could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). If more than

a scintilla of evidence exists in the record to support the finding, then the no evidence

challenge fails. See Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex.

2004). A scintilla of evidence is evidence so weak that it creates no more than a

3 Any challenge to title in the property or wrongful foreclosure would be claims held by the Clarksons, rather than by the appellants in this forcible detainer action. 5 surmise or suspicion of the existence of the fact sought to be proven. See Ford Motor

Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).

A review of the record before the trial court reflects that the amended sworn

complaint alleges that appellants refused to vacate the premises after a written demand

to do so. Further, the clerk’s record reveals that appellants were served with the

petition for forcible detainer at the residences in question after the date the notice to

vacate was given. In a factually similar case, the Fifth District Court of Appeals held

that where the complaint states that the defendant was given notice to vacate the

premises and further states that he refused to do so, such facts are sufficient to

demonstrate entitlement to possession of the property. Powelson v. U.S. Bank Nat’l

Ass’n, 125 S.W.3d 810, 811 (Tex.App.—Dallas 2004, no pet.). The record before us

provides more than a scintilla of evidence that appellants refused to vacate the

premises after proper demand had been made to do so. Tarrant Reg’l Water Dist., 151

S.W.3d at 552. Accordingly, appellants’ third issue is overruled.

Conclusion

Having overruled all of appellants’ issues, the judgment of the trial court is

affirmed.

Mackey K. Hancock Justice