ACCEPTED
03-14-00529-CV
4745739
THIRD COURT OF APPEALS
April 2, 2015 AUSTIN, TEXAS
4/2/2015 1:13:57 PM
JEFFREY D. KYLE
NO. 03-14-00529-CV CLERK
ln tbe
tltbftb ~ourt of appeals
at austin, tlttxas
RECEIVED IN
3rd COURT OF APPEALS
JEROME J. ISAAC AND MICHELLE P. ISAAC,AUSTIN, TEXAS
Appellants, 4/2/2015 1:13:57 PM
v. JEFFREY D. KYLE
VENDOR Clerk
RESOURCE MANAGEMENT, INC.; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. AND CITIMORTGAGE, INC.,
Appellees.
Appealed from the 26th District Court of
Williamson County, Texas
Cause No. 13-0472-C26
Hon. Billy Ray Stubblefield, Judge Presiding
BRIEF OF APPELLEE
Vendor Resource Management, Inc.
Chris Ferguson
Texas Bar No. 24069714
P.O. Box 815369
Dallas, Texas 75381
P: 972.247.0653 F: 972.247.0642
chris@jackoboyle.com
ATTORNEYS FOR APPELLEE
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NO. 03-14-00529-CV
JEROME J. ISAAC AND MICHELLE P. ISAAC,
Appellants,
v.
VENDOR RESOURCE MANAGEMENT, INC.; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. AND CITIMORTGAGE, INC.,
Appellees.
IDENTITY OF PARTIES & COUNSEL
The following is a complete list of the all the parties to this action:
(1) Jerome J. Isaac and Michelle P. Isaac, appellants
123 Dana Drive, Hutto, Texas 78634
(2) Vendor Resource Management, Inc. ("VRM"), appellee
4100 International Parkway, Suite 1000
Carrollton, Texas 75007
(3) Mortgage Electronic Registration Systems, Inc. ("MERS"), appellee
1901 Voorhees Street, Suite C
Danville, IL 61834
(4) Citimortgage, Inc. ("Citi"), appellee
1000 Technology Drive
O'Fallon, MO 63368
(5) Michael Brinkley, attorney for appellants
Brinkley Law PLLC
P.O. Box 820711
Fort Worth, Texas 76182
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(6) John Ellis, attorney for appellees MERS and Citi
Locke Lord, LLP
600 Congress Avenue, Suite 2200
Austin, Texas 78701
(7) Christopher S. Ferguson, attorney for appellee VRM
Jack O'Boyle & Associates
P.O. Box 815369
Dallas, Texas 75381
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TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL. ................................................. 2
INDEX OF AUTHORITIES ..................................................................... 5
STATEMENT OF THE CASE ................................................................. 8
STATEMENT ON ORAL ARGUMENT ................................................. 9
REPLY TO ISSUES PRESENTED .......................................................... 9
STATEMENT OF FACTS ........................................................................ 9
SUMMARY OF THE ARGUMENT ...................................................... 12
ARGUMENT ........................................................................................... 13
Reply to issue 1: Summary Judgment Proper ........................................ 14
Reply to issue 2: Validity of Foreclosure Sale ....................................... 24
PRAYER .................................................................................................. 27
CERTIFICATE OF SERVICE ................................................................ 27
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INDEX OF AUTHORITIES
CASES: PAGE:
Bierwirth v. Fed. Nat. Mortgage Ass'n,
No. 03-13-00076-CV, 2014 WL 902541, at *3
(Tex. App. Mar. 6, 2014) 24
Deubler v. Bank ofNew York Mellon,
No. 02-10-00125-CV, 2011
Tex.App. LEXIS 2644, at *3-4, 2011 WL 1331540
(Tex.App.-Fort Worth Apr. 7, 2011, no pet.) (mem.op.) 25
Goggins v. Leo,
849 S.W.2d 373, 377(Tex. App. Houston [14th Dist]) 16
Harris v. Ebby Halliday Real Estate, Inc., 14
345 S.W.3d 756, 759 (Tex. App. 2011)
Hornsby v. Sec'y of Veterans Affairs,
No. 05-11-01075-CV, 2012 WL 3525420, at *7 (Tex. App. Aug. 24
16, 2012)
It's the Berrys, LLC v. Edam Corner, LLC,
271 S.W.3d 765, 769-772 (Tex. App.-Amarillo 2008, no pet.)
(transfer improper) 22
Kaldis v. Aurora Loan Servs.,
No. 01-09-00270-CV, 2010Tex.App. LEXIS 4831,
at *9, 2010 WL 2545614 (Tex.App.-Houston [1st Dist.]
June 24,2010, pet. dism'd w.o.j.) (mem.op.) 25
Marshall v. Housing Auth. of City ofSan Antonio,
198 S.W.3d 782, 787 (Tex.2006) 18
Martinez v. Beasley,
572 S.W.2d 83, 85(Tex. Civ. App.-Corpus Christi 1978, no writ) 18
Meridien Hotels, Inc. v. LHO Fin. P'ship I, L.P.,
97 S.W.3d 731, 737-738 (Tex.App.-Dallas 2003, no pet.)
(abatement improper) 22,23
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CASES: PAGE:
Mitchell v. Citiflnancial Mortgage Company,
192 S.W.3rd 882 (Tex.Civ.App.- Dallas 2006) 26
Mortgage Electronic Registration Systems, Inc. vs. Knight,
09-04-452 Tex.App. Beaumont) 26
Murphy v. Countrywide Home Loans Inc,
199 S.W.3d 441, 445 (Tex.App.Houston [1 81 Dist.] 2006,
rehearing ovrl' d) 16
Powelson v. US. Bank, NA.,
125 S.W.3rd 810 (Tex.App.Dallas 2004 no pet) 26
Puentes v. Fannie Mae,
350 S.W.3d 732, 738-39 (Tex. App. 2011) 21,22
Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L. C.,
336 S.W.3d 764, 783 (Tex. App. 2011) 19
Rice v. Pinney!J.
51 S.W.3rd 705, 709 (Tex.App.-Dallas 2001, pet. dism'd w.o.j.) 18,21
Rodriguez v. Citimortgage, Inc.,
03-10-00093-CV, 2011 WL 182122 (Tex. App. Jan. 6, 2011) 18
Scott v. Hewitt,
127 Tex. 31, 35,90 S.W.2d 816,818-19 (1936) 18
Spring Garden 79U, Inc. v. Stewart Title Co.,
874 S.W.2d 945,950 {Tex. App. 1994) 19
Stephens v. Federal Home Loan Mortg. Corp.,
No. 02-10-00251-CV, 2011 Tex.App. LEXIS 3056, at *5, 2011
WL 1532384 (Tex.App.-Fort Worth Apr.21, 2011, no pet.) (rnem.op.) 25
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CASES: PAGE:
Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex.2005) 13
Villalon v. Bank One, Trustee,
176 S.W.3rct 66(Tex.App.-Houston(1 st. Dist.) 2004, pet.denied) 26
Walker Ins. Servs., 108 S.W.3d at 550; 19
STATUTES: PAGE:
Tex.Fin.Code §392.001(6) 20
Tex. Prop. Code Ann.§ 24.002 (Vernon 2000) 16
Texas Property Code §24.005 18
Tex. R. Civ. P. 166a(b) 13
Tex. R. Civ. P. 166a(c) 13
Tex.R. Civ. P. 166a(i) 14
Tex.R. Civ.P. 510(3)(b) 25
Tex.R. Civ. P. 746 25
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TO THE HONORABLE COURT OF APPPEALS:
COMES NOW, VENDOR RESOURCE MANAGEMENT, INC. ('VRM')
Appellee herein, and files this, its response to Brief of Appellant's.
STATEMENT OF CASE
This case is brought by the Isaacs against the Appellees for alleged
violations of the Texas Debt Collection Act ('TDCA'), for alleged breach of
contract, to quiet title subject to any valid and subsisting lien, and seeking
injunctive relief under the trial court's inherent powers and the TDCA. All of
these alleged causes of action stem from a foreclosure action that Appellee VRM
was not a party to and therefore could not be complicit in causing. The only
specific allegation made against VRM in Appellant's entire pleadings was for
violation of the Texas Property Code, leading to a wrongful eviction attempt.
Because Appellant's allegations were groundless, all of the Appellee's filed
motions for summary judgment (VRM filed a motion separate from MERS and
Citi Mortgage). The trial court agreed with the Appellee's and granted each of
their motions for summary judgment. Isaacs file a Motion to Vacate, which was
overruled by operation of law, which lead to this appeal.
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STATEMENT REGARDING ORAL ARGUMENTS
Appellee VRM does believe oral arguments are necessary and does not
request them but wishes to participate if they are held.
REPLY TO ISSUES PRESENTED
1. The trial court did not err in granting summary judgment to the Appellees,
including VRM, because there was not sufficient evidence to create a fact
dispute, necessitating a trial.
2. The trial court did not err in granting summary judgment to the Appellees
because the substitute trustees acted with proper authority and capacity.
STATEMENT OF FACTS
1. Appellant(s) are JEROME J. ISAAC and MICHELLE P. ISAAC
('Appellant' or 'ISAAC'); Appellee(s) are VENDOR RESOURCE
MANAGEMENT, INC. ('VRM'), MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC. ('MERS ') and CITIMORTGAGE, INC.
('CITI').
2. Appellee has sued Appellant(s) alleging irregularities in a foreclosure
sale and eviction and seeking to quiet title to certain real property identified by
street address as 123 Dana Drive, Hutto, TX 78634 (the 'Subject Property').
3. VRM is entitled to summary judgment on all claims alleged against it
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by Appellant(s). The issues in this lawsuit concern the foreclosure sale that took
place (and to which VRM was not a party) and the attempt by VRM to obtain
possession of the Subject Property.·
4. VRM is entitled to summary judgment as no genuine issue of material
fact exists. The Appellant alleges several causes of actions all stemming from the
foreclosure. VRM was not a party to the foreclosure and therefore cannot be
implicated in these allegations. The only specific allegation the Appellant makes
against VRM is that VRM wrongly attempted to evict them from their home and
has no right to possession of the property. When it commenced its eviction
proceeding, Appellee VRM was able to prove all of the elements under the forcible
detainer theory of recovery as a matter of law. To wit: (1) that the Subject
Property was auctioned at a foreclosure sale; (2) this foreclosure sale was held
pursuant to a Deed of Trust, creating a landlord tenant relationship upon
foreclosure; (3) that following foreclosure the named Grantee in the Trustee's
Deed conveyed the Subject Property to the Secretary of Veterans Affairs by way of
a Warranty Deed; (4) that following this conveyance VRM, as duly authorized
agent on behalf of the Secretary of Veterans Affairs, served written demand upon
Isaac to vacate the Subject Property; and (5) Isaac failed to vacate. Therefore,
Isaac's one allegation against VRM fails as a matter of law.
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I. STATEMENT OF MATERIAL FACTS AND EVIDENCE
5. On or about November 7, 2001, Jerome J. Isaac and Michelle P. Isaac
executed a Note for $125,162.00 payable to Sterling Capital Mortgage. The Note
was secured by a Deed of Trust which Jerome and Michelle Isaac granted to
Sterling Capital Mortgage.
6. The Note and Deed of Trust encumbered the following property:
LOT 52 BLOCK B, LAKES IDES ESTATE SECTION TWO, A SUBDIVISION
IN WILLIAMSON COUNTY, TEXAS, ACCORDING TO THE OR PLAT
RECORDED IN CABINET T, SLIDE 19 OF THE PLAT RECORDS OF
WILLIAMSON COUNTY, TEXAS. The Property is commonly known as 123
Dana Drive, Hutto, Texas 78364 (the "Subject Property").
7. The loan was subsequently service transferred on February 1, 2002 to
First Nationwide Mortgage Corporation ("First Nationwide") and the Deed of
Trust was assigned to First Nationwide.
8. First Nationwide merged with Citi in March 2003 and the servicing
rights and records of First Nationwide for the Isaac's loan were transferred to Citi
effective April 2, 2003.
9. In 2007 the Isaacs began to evince difficulty paying their mortgage.
After several attempts to enter the Isaacs into a loan modification program failed,
the Subject Property was sold to Citi on February 5, 2013 at a foreclosure auction.
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On February 27, 2013 Citi conveyed the Subject Property, via a Warrant Deed, to
the Secretary ofVeterans Affairs.
10. On or about March 27, 2013, VRM, as the authorized agent of the
Secretary of Veterans Affairs, brought an eviction action against the Appellant.
When the eviction proceedings commenced the Secretary of Veterans affairs was
the lawful owner of the Subject Property as evidenced by the February 27, 2013
Warranty Deed and had authority to act as evidenced by Exhibit D.
11. On June 10, 2013 the Secretary of Veterans Affairs reconveyed the
Subject Property to Citi as evidenced by Exhibit E.
SUMMARY OF ARGUMENT
12. The 261h District Court did not err in granting summary judgment for
VRM, MERS, and Citimortgage. The substitute trustee had sufficient authority to
conduct the sale and VRM had full capacity to initiate and prosecute possession
proceedings, including the filing of a forcible detainer suit. Even if the substitute
trustee had lacked capacity, the validity of the foreclosure was beyond the scope
of a forcible detainer and the trial court did not err in concluding that VRM had
acted without liability. Furthermore, when VRM learned that tile of the property
had been transferred it immediately ceased all eviction activity. VRM was not a
party to foreclosure and could not have participated in the acts and omissions
giving rise to the Appellant's other alleged causes of actions.
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IV. SUMMARY JUDGMENT STANDARDS
14. A motion for summary judgment shall be rendered forthwith if (i) the
deposition transcripts, interrogatory answers, and other discovery responses
referenced or set forth in the motion or responses, and (ii) the pleadings,
admissions, affidavits, stipulations of the parties, and authenticated or certified
public records, if any, on file at the time of the hearing, or file thereafter and before
judgment with permission of the court, show that, except as to the amount of
damages, there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law on the issues expressly set out in the
motion. Rule 166a(c), Tex. R. Civ. P.
15. An Appellee Defendant 1s entitled to summary judgment on an
Appellant's cause of action if the Appellee can prove as a matter of law that it has
an affirmative defense to the cause of action. See Tex. R. Civ. P. 166a(b). To meet
its burden, the Appellee Defendant must show that there is no genuine issue of
material fact on the elements ofthe affirmative defense. Tex. R. Civ. P. 166a(c).
II. ARGUMENTS AND AUTHORITIES
Standard of Review
Under either the no evidence or traditional summary judgment appeal, the
standards are subject to de novo review. See Valence Operating Co. v. Dorsett,
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164 S.W.3d 656, 661 (Tex.2005). When a party moves for summary judgment
under both standards, the reviewing court will generally address the no-evidence
grounds first. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). A no-
evidence motion for summary judgment is essentially a pretrial motion for directed
verdict. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009). Under Texas
Rule of Civil Procedure 166a(i), a party without the burden of proof may seek
summary judgment on the ground that, after adequate time for discovery, there is
no-evidence to support one or more essential elements of the nonmovant's claim or
defense. Tex.R. Civ. P. 166a(i); see Gish, 286 S.W.3d at 310. The trial court is
required to grant the motion unless the nonmovant produces evidence raising a
genuine issue of material fact as to each challenged element. See Tex.R. Civ. P.
166a(i).Harris v. Ebby Halliday Real Estate, Inc., 345 S.W.3d 756, 759 (Tex. App.
2011)
I. The trial court did not err in granting summary judgment to the
Appellees, including VRM because there was not sufficient
evidence to create a fact dispute, necessitating a trial.
16. The Appellant did not offer any evidence in support of his motion for
summary judgment. The documents attached to his motion as purported evidence
were excluded from evidence by the trial court. The Order Granting Defendant's
Objections to Appellant's Summary Judgment Evidence explicitly states that the
"objected-to evidence is stricken from the summary judgment record." (C.R. p.
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433). During the hearing on the parties' motions for summary judgment, the
Appellant did not make a proper objection to the exclusion of his evidence in order
to preserve the error for review on appeal. (R.R. Vol. 1, p. 24 ). Furthermore, the
Appellant did not make a proper offer of proof to have the evidence included in the
record for review on appeal. 1 Therefore, when reviewing de novo the trial court's
decision to grant the Appellee's motions for summary judgment, this Honorable
Court must limits its review to the contents of the record.
17. Appellee VRM was entitled to summary judgment because Appellee
can disprove an element of Appellant's alleged cause of action as a matter of law.
To carry its burden, Appellee must disprove only one of the elements of
Appellant's cause of action.
18. Appellant only alleges one specific cause of action against Appellee
VRM: wrongful eviction.
19. A forcible detainer occurs when a person refuses to surrender
possession of real property upon a statutorily sufficient demand for possession if
that person is: (1) a tenant or subtenant willfully and without force holding over
after his right of possession ends, (2) a tenant at will or by sufferance, or (3) a
1
"When the trial court rules evidence is not admissible and excludes it, the party who offered the evidence should
make an offer of proof to get the evidence into the record on appeal." TRE 103(a)(92) Akin v. Santa Clara Land
Co., 34 S. W.3d 334, 339 (Tex.App.- San Antonio 2000, pet. denied).
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tenant of someone who acquired possession by forcible entry. TEX. PROP. CODE
ANN. § 24.002 (Vernon 2000).
20. To prevail in a forcible detainer case, Appellee VRM must establish
as a matter of law: (1) Secretary of Veterans Affairs was the owner of the Subject
Property by way of being the named successor in interest to a trustee deed's
executed as a result of a foreclosure sale of the Subject Property, (2) the
foreclosure was of a lien superior to Isaac's right to possession thereby causing
Isaac to become a tenant at sufferance, (4) VRM made to Isaac a statutorily written
demand for possession and (5) Isaac failed to vacate. See TEX. PROP. CODE
ANN. § 24.002; Murphy v. Countrywide Home Loans Inc, 199 S.W.3d 441, 445
(Tex.App.Houston [1st Dist.] 2006, rehearing ovrl 'd), citing Goggins v. Leo, 849
S.W.2d 373, 377 (Tex. App. Houston [14th Dist]).
(1) Substitute Trustee's Deed and Special Warranty Deed
21. On February 5, 2013, the subject property was sold at a non-judicial
foreclosure sale. A certified copy of the Substitute Trustee's Deed was included in
the Appellee's Motion for Summary Judgment as Exhibit A (C.R. p. 325).
Following this foreclosure sale the named Grantee in the Substitute Trustee's Deed
conveyed the Subject Property to the Secretary of Veterans Affairs by way of a
Warranty Deed. A certified copy of the Warranty Deed was included in the
Appellee's Motion for Summary Judgment as Exhibit B (C.R. p. 327).
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(2) Deed of Trust
22. This foreclosure sale was held pursuant to the terms of a Deed of
Trust. A certified copy of said instrument was included in the Appellee's Motion
for Summary Judgment as Exhibit C (C.R. p. 329 That instrument provides that
following a foreclosure sale, the mortgagor in the deed of trust and anyone holding
under him or her shall immediately surrender possession of the Subject Property to
the purchaser at the foreclosure sale. It further provides that if possession is not
surrendered, the mortgagor or the person holding under him or her shall be a tenant
at sufferance and may be removed by writ of possession or other court proceeding.
(3) Notice to Vacate
23. The business records affidavit was included in the Appellee's Motion
for Summary Judgment as Exhibit D (C.R. p. 349-355). The business record and its
accompanying affidavit stablished that following the February 5, 2013 foreclosure
sale the law offices of Jack O'Boyle & Associates mailed a notice to vacate to the
property addressed to Isaac by both first class and certified mail. Attached to said
affidavit is a true and correct copy of this notice to vacate, as well as a copy of the
face of the first class and certified mail envelopes as they appeared prior to
sending; and lastly, a copy of the United States Postal Service (USPS) track and
confirm information for the certified mail article. This affidavit, and supporting
documents, is sufficient to establish the admissibility of the notice to vacate, sent
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by the law firm in compliance with the Texas Property Code 24.005. See
Rodriguez v. Citimortgage, Inc., 03-10-00093-CV, 2011 WL 182122 (Tex. App.
Jan. 6, 2011).
(4) Failure to Vacate
24. Isaac has admitted in his original petition that he continues to occupy
the property. Appellant's Original Petition conceded that he has remained in
possession of the property and by defending against VRM' s claim of possession
made on behalf of the Secretary of Veterans Affairs, Isaac tacitly admitted that
they remained in the property at the time the eviction process commenced.
Rodriguez, 03-10-00093-CV, 2011 WL 182122 (Tex. App. Jan. 6, 2011). Ifhe had
relinquished possession, his competing claims to possession would be moot. See
Marshall v. Housing Auth. of City of San Antonio, 198 S. W.3d 782, 787
(Tex.2006).
(5) Immediate Possession Determined Separately from Title
25. A forcible detainer action is not exclusive, but rather is cumulative, of
any other remedy that a party may have in courts of this state, and the displaced
party is entitled to bring a separate suit in the district court to determine the
question of title. Rice, 51 S.W.3d at 709, see also Scott v. Hewitt, 127 Tex. 31, 35,
90 S.W.2d 816, 818-19 (1936); Martinez v. Beasley, 572 S.W.2d 83, 85 (Tex. Civ.
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App.-Corpus Christi 1978, no writ). Forcible detainer actions injustice courts may
be brought and prosecuted concurrently with suits to try title in district court. !d.
(6) VRM's Authority to Act
26. In determining whether a party had actual authority to act for another,
the courts examine the words and conduct by the principal to the alleged agent
regarding the alleged agent's authority to act for the principal. See Walker Ins.
Servs., 108 S. W.3d at 550; Spring Garden 79U, 874 S. W.2d at 950. Reliant Energy
Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S. W.3d 764, 783 (Tex. App.
2011).
27. The business records affidavit that was included in the Appellee's
Motion for Summary Judgment as Exhibit D establishes that Vendor Resource
Management (VRM) is the duly authorized agent of the Secretary of Veteran's
Affairs and is therefore able to act on its behalf (C.R. p. 356).
28. The plain text of the document evincing VRM's authority states that
VRM is "responsible for the full range of property acquisition, management and
resale and loan servicing activities. This includes actions for possession ... " on
behalf of the Secretary of Veteran's Affairs (C.R. p. 356).
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Texas Finance Code Does not Apply
29. The section of the Texas Finance Code cited by the Appellant only
applies to debt collectors2 and VRM was not in this instance acting as debt
collector or attempting to collect a debt.
30. The Texas Finance Code defines a debt collector as "a person who
directly or indirectly engages in debt collection and includes a person who sells or
offers to sell forms represented to be a collection system, device, or scheme
intended to be used to collect consumer debts." Tex.Fin.Code §392.001(6)
(emphasis added).
31. VRM was acting as the duly authorized agent for the Secretary of
Veterans Affairs. The Secretary of Veterans Affairs did not make a consumer loan
to the Appellant and therefore could not have been attempting to collect on a
consumer debt. VRM did not make a consumer loan to the Appellant either, nor,
therefore, could it have been attempting to collect a debt.
32. The Secretary of Veterans Affairs acquired title to the property by
means of a warranty deed executed by CitiMortgage after CitiMortgage had
foreclosed on the Subject Property. The Secretary ofVeterans Affairs, through its
agent VRM, was merely seeking to obtain possession of a property that it owned
and was not seeking collection of a debt. In fact, the judgment issued in the
2
See Sec. 392.30 I. THREATS OR COERCION. (a) In debt collection, a debt collector may not .... "
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forcible detainer action was for possession only and did include any monetary
damages, not even attorney's fees.
Improper Collateral Attack on Justice Court Judgment
33. The substitute trustee's deed, deed of trust, and notice to vacate were
sufficient for Williamson Justice Court Precinct 4 to award immediate right of
possession to VRM. If Appellant wanted to appeal the justice court's decision on
grounds of insufficient evidence he was free to do so but, for whatever reason,
chose not to.
34. The Appellant is now improperly seeking to attack the Justice Court's
judgment rendered in the forcible detainer action.
35. A forcible detainer is a simple, speedy, and inexpensive remedy for
determining which party has a superior right of immediate possession. Rice v.
Pinney,_ 51 S.W.3rd 705, 709 (Tex.App.-Dallas 2001, pet. dism'd w.o.j.)
Therefore, a forcible detainer judgment "is necessarily limited to the scope of the
suit, an award of possession on a particular date does not implicate a party's
possessor right on a future date." Puentes v. Fannie Mae, 350 S.W.3d 732, 738-39
(Tex. App. 2011)
36. Having failed to appeal the Justice Court's judgment awarding the
Defendant VRM, as duly authorized agent for the Secretary of Veterans Affairs,
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possession, the Appellant was free to file his own forcible detainer to establish his
superior right of possession if he believed changed circumstances so warranted.
37. In a case with similar facts, but challenged on different grounds, the
Second Court of Appeals held that a party may file a new forcible detainer action
even after failing to appeal the justice court judgment in the original proceeding.
See Puentes v. Fannie Mae, 350 S.W.3d 732, 739 (Tex. App. 2011) (A "Suit was
nothing more than a determination that, at that time, the Puenteses had a superior
right to possess the property .... "[a]s the First JP Suit had no effect on the justice
court's jurisdiction to consider the Second JP Suit, Fannie Mae was not required to
appeal the judgment. ").
38. Instead, the Appellant is seeking to usurp the Justice Court's
jurisdiction by attacking its judgment in this proceeding. Because the available
remedies in a forcible detainer are cumulative, a justice court (and on appeal -
County Court) having jurisdiction of an eviction suit in which only possession is
disputed should neither abate the proceeding in deference to an ongoing title
dispute in another court, nor transfer the eviction suit to another court in which
such a dispute is pending. It's the Berrys, LLC v. Edom Corner, LLC, 271 S.W.3d
765, 769-772 (Tex. App.-Amarillo 2008, no pet.)(transfer improper); Meridien
Hotels, Inc. v. LHO Fin. P'ship I, L.P., 97 S.W.3d 731, 737-738 (Tex.App.-
Dallas 2003, no pet.)(abatement improper)] If the justice court abates the
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proceeding, the appropriate court may issue mandamus to require the justice court
to proceed with the eviction suit. Meridien Hotels, Inc, 97 S.W.3d at 737 Uustice
court abused its discretion in abating eviction suit until finalization of district court
proceedings seeking declaration that tenant was in default, so county court
properly issued mandamus to require justice court to proceed to trial on issue of
possession). Just as the Justice Court should not relinquish jurisdiction over a
pending forcible detainer in deference to an on-going title dispute, neither should
the district court interfere with the Justice Court's jurisdiction by allowing the
Appellant to make a collateral attack on the Justice Court's judgment.
Writ of Possession Issued But Was Not Executed
39. On or around September 17, 2013 the Justice Court Precinct 4,
Williamson County, issued a writ of possession on its valid judgment in the
original forcible detainer action (said judgment was included in the Appellee's
Reply to Plaintiffs Response to Defendant's Motion for Final Summary
Judgment as Exhibit A (C.R. p. 408)).
40. Said writ was issued but never executed. The Appellants were not set
out of the Subject Property and did not suffer any injury. In fact, the Appellants
have continued to occupy the Subject Property without paying rent since February
of2013.
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II. The trial court did not err in granting summary judgment to the
Appellees because the substitute trustees acted with proper authority
and capacity and regardless, issues of title are not relevant.
41. Appellee VRM was not a party to the foreclosure and Appellant does
not implicate VRM in any alleged foreclosure irregularities. Appellant's sole
argument relating VRM to the foreclosure is that because the foreclosure was
improper the subsequent transfer of title to the Secretary of Veteran's Affairs was
void and VRM' s eviction action on behalf of the VA was therefore unlawful.
42. Appellee VRM expects this issue to be fully briefed by Appellees
MERS and Citimortgage and therefore will limit its scope to the relevance of the
allegation to VRM's original forcible detainer.
43. Any challenge to the foreclosure, including appointment of the
trustee, goes to the question of title and is not permitted in a forcible detainer
action. As this Court has affirmed again and again where, as here, "a foreclosure
under a deed of trust establishes a landlord and tenant-at-sufferance relationship
between the parties, there is an independent basis to determine the issue of
immediate possession without resolving the issue of title to the property."
Bierwirth v. Fed. Nat. Mortgage Ass'n, No. 03-13-00076-CV, 2014 WL 902541, at
*3 (Tex. App. Mar. 6, 2014) citing Hornsby v. Sec'y of Veterans Affairs, No. 05-
11-01075-CV, 2012 WL 3525420, at *7 (Tex. App. Aug. 16, 2012) ("Although
[appellant] challenges the chain of title to the property, 'the merits of the title shall
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not be adjudicated' in a forcible detainer action." (quoting Tex.R. Civ. P. 746)) 3 ;
Stephens v. Federal Home Loan Mortg. Corp., No. 02-10-00251-CV, 2011
Tex.App. LEXIS 3056, at *5, 2011 WL 1532384 (Tex.App.-Fort Worth Apr.21,
2011, no pet.) (mem.op.) (holding Federal Home was not required to "connect the
dots" between original lender and mortgage servicer regarding title; substitute
trustee's deed evidenced Federal Home purchased property after plaintiffs default);
Deubler v. Bank of New York Mellon, No. 02-10-00125-CV, 2011 Tex.App.
LEXIS 2644, at *3-4, 2011 WL 1331540 (Tex.App.-Fort Worth Apr. 7, 2011, no
pet.) (mem.op.) (holding party was not required to present evidence establishing
linkage between deed of trust and substitute trustee's deed to establish superior
right to possession); Kaldis v. Aurora Loan Servs., No. 01-09-00270-CV, 2010
Tex.App. LEXIS 4831, at *9, 2010 WL 2545614 (Tex.App.-Houston [1st Dist.]
June 24, 2010, pet. dism'd w.o.j.) (mem.op.) (holding whether substitute trustee's
deed was "void" or "deficient" or whether there was "a gap in the chain of
title/ownership" was issue outside scope of forcible-detainer action).
IV. CONCLUSION
44. Appellant would show unto this Court that based upon the summary
judgment evidence attached to its Motion and considered by the trial court,
3
This was the Rule number when the opinion was written. Rule 746 was replaced by Rule 510.3(b)effective
August 30, 2013.
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Appellant established a prima facie case of its right to possession of the Subject
Property. Mitchell v. Citifinancial Mortgage Company, 192 S.W.3rct 882
(Tex.Civ.App. - Dallas 2006), Powelson v. US. Bank, N.A., 125 S.W.3rct 810
(Tex.App.Dallas 2004 no pet); Mortgage Electronic Registration Systems, Inc. vs.
Knight, 09-04-452 Tex.App. Beaumont), Villalon v. Bank One, Trustee, 176
S.W.3rct 66(Tex.App.-Houston(l st. Dist.) 2004, pet.denied). Therefore, VRM did
not wrongfully pursue a forcible detainer action against the Appellant.
45. The Trustee's Deed and Warranty Deed establish that the Subject
Property was auctioned at foreclosure and subsequently conveyed to the Secretary
of Veterans Affairs thereby entitling it to possession of the same. The deed of trust
required Isaac to surrender possession of the property to VRM, on behalf of the
Secretary of Veterans Affairs as the successor in interest to the purchaser at the
sale, and further provided that failure to do so would cause Isaac to become a
"tenant at sufferance." The foreclosure pursuant to the deed of trust established a
landlord and tenant-at-sufferance relationship between the Isaac and Appellee,
which provided a basis for determining the right of possession.
46. As such, there existed no genuine disputed issue of material fact.
Accordingly, as a matter of law, VRM, as duly authorized agent for the Secretary
of Veterans Affairs, was entitled to possession of the Subject Property when VRM
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commenced the forcible detainer. The trial court , therefore, was correct to grant
VRM' s summary judgment and did not commit reversible error.
V. PRAYER
WHEREFORE, PREMISES CONSIDERED, VRM prays that this
Honorable Court affirm the judgment of the trial court. Appellee also requests any
other relief, at law or in equity, to which it may be entitled.
RESPECTFULLY SUBMITTED:
JACK O'BOYLE & ASSOCIATES
Is/Chris Ferguson
_John James "Jack" O'Boyle
SBN 15165300
_Travis H. Gray
SBN 24044965
XX Chris Ferguson
SBN 24069714
P.O. Box 815369
Dallas, Texas 75381
P: 972.247.0653 F: 972.247.0642
ATTORNEYS FOR APPELLEE
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing was
served upon the parties listed below on April 2, 2015, pursuant to Texas Rule of
Appellate Procedure 9.5.
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VIA FACSIMILE (888)511-0946
& EMAIL (m@michaelbrinkley.com)
Michael Brinkley
P.O. Box 820711
Fort Worth, TX 761-0711
Attorney for Appellants
VIA FACSIMILE (512-305-4700)
& EMAIL (jellis@lockelord.com)
John W. Ellis
600 Congress Avenue, Suite 2200 Is/Chris Ferguson
Austin, Texas 78701 Chris Ferguson
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