AFFIRM in Part, REVERSE in Part, and RENDER; Opinion Filed August 11, 2015.
Court of Appeals S In The
Fifth District of Texas at Dallas No. 05-14-00903-CV
U.S. BANK, NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR THE RMAC TRUST, SERIES 2013-IT, Appellant V. MASARRAT A. KHAN AND KAHN A. AHMED, Appellees
On Appeal from the County Court at Law No. 1 Dallas County, Texas Trial Court Cause No. CC-14-02208-A
MEMORANDUM OPINION Before Justices Bridges, Lang and Schenck Opinion by Justice Schenck In this forcible detainer action, U.S. Bank, as trustee, appeals the trial court’s judgment
awarding possession of certain real property to U.S. Bank as against any claim of appellee Masarrat
Khan, but not as to her husband, Ahmed Khan, and all other occupants of the property. 1 On appeal,
U.S. Bank claims the trial court erred in not awarding U.S. Bank possession as to Ahmad Kahn and
all other occupants. After examining the record and reviewing the applicable law, we conclude
U.S. Bank is entitled to an award of possession of the property as to all occupants of the
property, including appellee Ahmed Khan. We reverse the trial court’s judgment as it relates to
Mr. Khan and all other occupants, and render judgment for U.S. Bank. 1 We note that the underlying case was styled U.S. Bank v. Masarrat A. Khan and Khan A. Ahmed and All Other Occupants, not U.S. Bank v. Masarrat A. Khan and Ahmed A. Khan and All Other Occupants. Nevertheless, Masarrat A. Khan and Ahmed A. Khan appeared in that case as pro se defendants and filed a Motion for Continuance and a Motion for Dismissal in the names of Masarrat Khan and Ahmed A. Khan and All Other Occupants. In addition, Ahmed A. Khan appeared and participated in the trial before the county court at law. We therefore conclude that Ahmed A. Khan was a defendant in that case. BACKGROUND
In connection with their purchase of property located at 620 Sheffield Drive in
Richardson, Texas (the “property”), the Khans executed a promissory note secured by a deed of
trust on the property for the benefit of their lender. In the event the Khans defaulted on the note,
the deed of trust provided the lender with remedies, including the power to sell the property at
foreclosure. The deed of trust further provided that after foreclosure, the Kahns would become
tenants at sufferance if they failed to immediately surrender possession. As tenants at sufferance,
the Kahns would be subject to a forcible detainer action if they refused to vacate the property
after the owner gave notice to vacate.
The Khans defaulted on the note. As a result, their lender foreclosed on the property.
U.S. Bank purchased the property at the foreclosure sale. At that time, the Kahns were still in
possession of the property. Accordingly, U.S. Bank sent three separate notices, one addressed to
Mrs. Kahn, one to Mr. Khan, and one to all occupants of the property, demanding that they vacate the
property within three days. They refused to do so. U.S. Bank then filed a forcible detainer action in
the justice court seeking possession of the property. The justice court awarded U.S. Bank sole
possession of the property, and the Kahns appealed the judgment to County Court at Law Number
One.
At a bench trial in the county court, U.S. Bank entered into evidence a business records
affidavit authenticating the three notices it sent by certified mail, return receipt requested, to Mrs.
Kahn, Mr. Kahn and all other occupants of the property and photocopies of certified mail return
receipt confirmations signed by Mrs. Kahn. At the conclusion of the trial, the county court ruled
that U.S. Bank was entitled to recover possession from Mrs. Kahn, but not from Mr. Kahn. The
trial judge stated she was not awarding possession as to Mr. Kahn because U.S. Bank did not
prove that he received the notice. The court then entered a judgment awarding U.S. Bank
–2– possession as to Mrs. Kahn, but not as to Mr. Kahn and all other occupants of the property. This
appeal followed.
STANDARD OF REVIEW
In a single issue, U.S. Bank claims the trial court improperly adjudged only Mrs. Kahn
guilty of forcible detainer. U.S. Bank does not state whether it intends to challenge the legal or
factual sufficiency of the evidence. Under such a circumstance, we look to the wording of the
issues and arguments to best determine the intent of U.S. Bank. See U.S. Bank Nat’l Ass’n v.
Farhi, No. 05-07-01539-CV, 2009 WL 2414484, at *1 (Tex. App.—Dallas, August 7, 2009, no
pet.) (citing Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982). Having done so, we conclude
U.S. Bank challenges the legal sufficiency of the evidence to support the trial court’s refusal to
issue a writ of possession as to Mr. Kahn and all other occupants.
When a party attacks the legal sufficiency of an adverse finding regarding an issue on
which it had the burden of proof, the party must demonstrate on appeal that the evidence
established the operative fact in its favor as a matter of law. Dow Chem. Co. v. Francis, 46
S.W.3d 237, 241 (Tex. 2001) (per curiam) (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686,
690 (Tex. 1989)).
Here, the only issue at trial was whether U.S. Bank gave each of the Kahns and any other
occupants of the property notice to vacate before filing suit. U.S. Bank had the burden of
proving it complied with the notice provision applicable to forcible entry and detainer actions.
Therefore, on appeal, we must determine whether U.S. Bank established, as a matter of law, that
it sent the required notice. In doing so, we first examine the record for evidence that supports the
trial court’s ruling, while ignoring all evidence to the contrary. Sterner v. Marathon Oil Co., 767
S.W.2d 686, 690. If there is no evidence to support the ruling, we then examine the entire record
to determine if the contrary proposition is established as a matter of law. Id. at 690.
–3– DISCUSSION
Because a forcible detainer only occurs if the occupant refuses to surrender possession
upon demand, the owner must demand possession before it can file a forcible detainer suit. TEX.
PROP. CODE ANN. § 24.005(b) (West 2014). The demand for possession must be made in writing
by a person entitled to possession of the property and must comply with the requirements for a
notice to vacate under section 24.005 of the Texas Property Code. Id. at § 24.002(b). Section
24.005 requires that the notice be given in person or by mail at the premises in question. TEX.
PROP. CODE ANN. § 24.005(f). Notice by mail may be by regular, registered or certified mail.
TEX. PROP. CODE ANN. § 24.005(f). Neither method of delivery requires that a notice
specifically address particular occupants. Khalilnia v. Fed. Home Loan Mortg. Co., No. 01-12-
00573-CV, 2003 WL 1183311, at *3 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Rather, the
statute's broad language about the acceptable recipients of notice permits a general notice to the
occupants of the property. Id.
We now examine the record to determine whether U.S. Bank satisfied the statute’s notice
requirement. The reporter’s record of the trial, which consists of only three pages, reveals that
only U.S. Bank and Mr. Kahn appeared at trial. At trial, Mr. Kahn testified that he did not recall
receiving the notice to vacate.
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AFFIRM in Part, REVERSE in Part, and RENDER; Opinion Filed August 11, 2015.
Court of Appeals S In The
Fifth District of Texas at Dallas No. 05-14-00903-CV
U.S. BANK, NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR THE RMAC TRUST, SERIES 2013-IT, Appellant V. MASARRAT A. KHAN AND KAHN A. AHMED, Appellees
On Appeal from the County Court at Law No. 1 Dallas County, Texas Trial Court Cause No. CC-14-02208-A
MEMORANDUM OPINION Before Justices Bridges, Lang and Schenck Opinion by Justice Schenck In this forcible detainer action, U.S. Bank, as trustee, appeals the trial court’s judgment
awarding possession of certain real property to U.S. Bank as against any claim of appellee Masarrat
Khan, but not as to her husband, Ahmed Khan, and all other occupants of the property. 1 On appeal,
U.S. Bank claims the trial court erred in not awarding U.S. Bank possession as to Ahmad Kahn and
all other occupants. After examining the record and reviewing the applicable law, we conclude
U.S. Bank is entitled to an award of possession of the property as to all occupants of the
property, including appellee Ahmed Khan. We reverse the trial court’s judgment as it relates to
Mr. Khan and all other occupants, and render judgment for U.S. Bank. 1 We note that the underlying case was styled U.S. Bank v. Masarrat A. Khan and Khan A. Ahmed and All Other Occupants, not U.S. Bank v. Masarrat A. Khan and Ahmed A. Khan and All Other Occupants. Nevertheless, Masarrat A. Khan and Ahmed A. Khan appeared in that case as pro se defendants and filed a Motion for Continuance and a Motion for Dismissal in the names of Masarrat Khan and Ahmed A. Khan and All Other Occupants. In addition, Ahmed A. Khan appeared and participated in the trial before the county court at law. We therefore conclude that Ahmed A. Khan was a defendant in that case. BACKGROUND
In connection with their purchase of property located at 620 Sheffield Drive in
Richardson, Texas (the “property”), the Khans executed a promissory note secured by a deed of
trust on the property for the benefit of their lender. In the event the Khans defaulted on the note,
the deed of trust provided the lender with remedies, including the power to sell the property at
foreclosure. The deed of trust further provided that after foreclosure, the Kahns would become
tenants at sufferance if they failed to immediately surrender possession. As tenants at sufferance,
the Kahns would be subject to a forcible detainer action if they refused to vacate the property
after the owner gave notice to vacate.
The Khans defaulted on the note. As a result, their lender foreclosed on the property.
U.S. Bank purchased the property at the foreclosure sale. At that time, the Kahns were still in
possession of the property. Accordingly, U.S. Bank sent three separate notices, one addressed to
Mrs. Kahn, one to Mr. Khan, and one to all occupants of the property, demanding that they vacate the
property within three days. They refused to do so. U.S. Bank then filed a forcible detainer action in
the justice court seeking possession of the property. The justice court awarded U.S. Bank sole
possession of the property, and the Kahns appealed the judgment to County Court at Law Number
One.
At a bench trial in the county court, U.S. Bank entered into evidence a business records
affidavit authenticating the three notices it sent by certified mail, return receipt requested, to Mrs.
Kahn, Mr. Kahn and all other occupants of the property and photocopies of certified mail return
receipt confirmations signed by Mrs. Kahn. At the conclusion of the trial, the county court ruled
that U.S. Bank was entitled to recover possession from Mrs. Kahn, but not from Mr. Kahn. The
trial judge stated she was not awarding possession as to Mr. Kahn because U.S. Bank did not
prove that he received the notice. The court then entered a judgment awarding U.S. Bank
–2– possession as to Mrs. Kahn, but not as to Mr. Kahn and all other occupants of the property. This
appeal followed.
STANDARD OF REVIEW
In a single issue, U.S. Bank claims the trial court improperly adjudged only Mrs. Kahn
guilty of forcible detainer. U.S. Bank does not state whether it intends to challenge the legal or
factual sufficiency of the evidence. Under such a circumstance, we look to the wording of the
issues and arguments to best determine the intent of U.S. Bank. See U.S. Bank Nat’l Ass’n v.
Farhi, No. 05-07-01539-CV, 2009 WL 2414484, at *1 (Tex. App.—Dallas, August 7, 2009, no
pet.) (citing Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982). Having done so, we conclude
U.S. Bank challenges the legal sufficiency of the evidence to support the trial court’s refusal to
issue a writ of possession as to Mr. Kahn and all other occupants.
When a party attacks the legal sufficiency of an adverse finding regarding an issue on
which it had the burden of proof, the party must demonstrate on appeal that the evidence
established the operative fact in its favor as a matter of law. Dow Chem. Co. v. Francis, 46
S.W.3d 237, 241 (Tex. 2001) (per curiam) (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686,
690 (Tex. 1989)).
Here, the only issue at trial was whether U.S. Bank gave each of the Kahns and any other
occupants of the property notice to vacate before filing suit. U.S. Bank had the burden of
proving it complied with the notice provision applicable to forcible entry and detainer actions.
Therefore, on appeal, we must determine whether U.S. Bank established, as a matter of law, that
it sent the required notice. In doing so, we first examine the record for evidence that supports the
trial court’s ruling, while ignoring all evidence to the contrary. Sterner v. Marathon Oil Co., 767
S.W.2d 686, 690. If there is no evidence to support the ruling, we then examine the entire record
to determine if the contrary proposition is established as a matter of law. Id. at 690.
–3– DISCUSSION
Because a forcible detainer only occurs if the occupant refuses to surrender possession
upon demand, the owner must demand possession before it can file a forcible detainer suit. TEX.
PROP. CODE ANN. § 24.005(b) (West 2014). The demand for possession must be made in writing
by a person entitled to possession of the property and must comply with the requirements for a
notice to vacate under section 24.005 of the Texas Property Code. Id. at § 24.002(b). Section
24.005 requires that the notice be given in person or by mail at the premises in question. TEX.
PROP. CODE ANN. § 24.005(f). Notice by mail may be by regular, registered or certified mail.
TEX. PROP. CODE ANN. § 24.005(f). Neither method of delivery requires that a notice
specifically address particular occupants. Khalilnia v. Fed. Home Loan Mortg. Co., No. 01-12-
00573-CV, 2003 WL 1183311, at *3 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Rather, the
statute's broad language about the acceptable recipients of notice permits a general notice to the
occupants of the property. Id.
We now examine the record to determine whether U.S. Bank satisfied the statute’s notice
requirement. The reporter’s record of the trial, which consists of only three pages, reveals that
only U.S. Bank and Mr. Kahn appeared at trial. At trial, Mr. Kahn testified that he did not recall
receiving the notice to vacate. This testimony does not support the trial court’s ruling against
U.S. Bank as to Mr. Kahn and all other occupants because the notice only had to be mailed to the
property. See Weatherbee v. GMAC Mortg., LLC, No. 01–11–00546–CV, 2012 WL 1454494 at
*5 (Tex. App.—Houston [1st Dist.] April 26, 2012, pet. dism’d). Whether Mr. Kahn received
the notice is not determinative of whether notice was given. We now review the entire record to
determine whether it establishes U.S. Bank gave the required notice. The record includes three
letters U.S. Bank’s counsel sent to Mrs. Kahn, Mr. Kahn and all other occupants of the property
giving them each and collectively notice to vacate the property within three days of delivery of
–4– the letters. These letters contained the notice required by section 24.005 of the Texas Property
Code. In addition, the record includes the return receipt confirmations signed by Mrs. Kahn
establishing the letters were received at the notice address. This evidence establishes U.S. Bank
sent the notices by mail to the property and thereby complied with section 24.005 of the Texas
Property Code. Thus, U.S. Bank is entitled to unqualified possession of the property. We
sustain U.S. Bank’s sole issue.
CONCLUSION
We reverse the trial court's judgment as to Ahmed A. Khan and all other occupants of the
property, we affirm the trial court’s judgment as to Masarrat A. Kahn, and we render judgment in
favor of U.S. Bank. See TEX. R. APP. P. 43.2(c) (providing appellate court may reverse trial
court's judgment in part and render judgment trial court should have rendered).
/David J. Schenck/ DAVID J. SCHENCK JUSTICE
140903F.P05
–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
U.S. BANK, NATIONAL ASSOCIATION, On Appeal from the County Court at Law Appellant No. 1, Dallas County, Texas Trial Court Cause No. CC-14-02208-A. No. 05-14-00903-CV V. Opinion delivered by Justice Schenck. Justices Bridges and Lang participating. MASSARRAT A. KHAN, ET AL., Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court's judgment as to Ahmad A. Khan and all other occupants.. In all other respects, the trial court's judgment is AFFIRMED. We RENDER judgment in favor of U.S. Bank, National Association as to Ahmad A. Khan and all other occupant. It is ORDERED that appellant U.S. BANK, NATIONAL ASSOCIATION recover its costs of this appeal from appellees MASSARRAT A. KHAN, ET AL.
Judgment entered this 11th day of August, 2015.
–6–