COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00200-CV
FRED MOSELY APPELLANT
V.
AMERICAN HOMES 4 RENT APPELLEE
PROPERTIES EIGHT, LLC
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FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 2015-001748-1
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MEMORANDUM OPINION 1
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Appellant Fred Mosely, appearing pro se, appeals the trial court’s
judgment that awards possession of certain real property to appellee American
Homes 4 Rent Properties Eight, LLC. In two issues, appellant contends that the
1
See Tex. R. App. P. 47.4.
judgment is erroneous because the trial court lacked jurisdiction and because he
received inadequate notice to leave the premises under federal law. We affirm.
Background Facts
In February 2014, in a justice court, appellee filed an original petition for
forcible entry and detainer. 2 Appellee alleged that it had acquired title to certain
real property in Fort Worth through a substitute trustee’s sale and that under the
terms of a 2006 deed of trust, appellant and any other occupants of the property
had become tenants at sufferance. Appellee also alleged that it had instructed
appellant to vacate the premises and that appellant had refused to do so. 3
To the petition, appellee attached a copy of the substitute trustee’s deed.
That document stated that Kimberly Wempa (whom appellee sued along with
appellant) had executed a deed of trust in 2006 to secure payment on a note and
had defaulted in making payments and that the property had been sold at a
foreclosure sale to appellee. The substitute trustee’s deed conveyed the
property to appellee in fee simple.
Appellee also attached a copy of the 2006 deed of trust. That document
recited that Wempa had agreed to pay the debt evidenced by the note related to
the property and that if she did not do so, the lender could accelerate the note
2
See Tex. Prop. Code Ann. §§ 24.001–.011 (West 2014 & Supp. 2015).
3
The record contains a January 31, 2014 letter from appellee to appellant
that notified appellant about the foreclosure and trustee’s sale and instructed him
to vacate the property within three days. The letter stated that if appellant did not
vacate the property, appellee could file suit without further notice.
2
and sell the property. The deed of trust recited, “If all or any part of the Property
or any Interest in the Property is sold or transferred . . . without Lender’s prior
written consent, Lender may require immediate payment in full of all sums
secured by this Security Instrument.” Finally, that document also stated,
If the Property is sold[,] . . . Borrower[4] or any person holding
possession of the Property through the Borrower shall immediately
surrender possession of the Property to the purchaser at the sale. If
possession is not surrendered, Borrower or such person shall be a
tenant at sufferance and may be removed by writ of possession or
other court proceeding.
In March 2015, the justice court rendered a judgment in appellee’s favor
and ordered that appellee had the right to possess the property. Appellant
appealed to the trial court and filed an answer to appellee’s petition for forcible
entry and detainer. 5 In the answer, appellant contended that the trial court
lacked jurisdiction over appellee’s petition because the cause involved “not
possession only but . . . a title dispute.” Appellant also contended that appellee
had failed to comply with federal law in providing notice of eviction.
Appellee filed a motion for summary judgment. In the motion, appellee
alleged that conclusive evidence showed that the property had been sold to it in
4
The deed of trust named Wempa as the “Borrower.” It recited that
Wempa had executed a note in June 2006 to repay $123,360 and that the deed
of trust intended to secure to the lender the repayment of the note.
5
See Tex. Prop. Code Ann. § 24.004(a), Tex. R. Civ. P. 506.3, 510.10(c);
see also Rice v. Pinney, 51 S.W.3d 705, 708 (Tex. App.—Dallas 2001, no pet.)
(“Jurisdiction of forcible detainer actions is expressly given to the justice court of
the precinct where the property is located and, on appeal, to county courts for a
trial de novo.”).
3
October 2013 through a nonjudicial foreclosure, that appellant and Wempa had
thereafter refused to vacate the property and were tenants at sufferance, and
that the substitute trustee’s deed gave appellee a greater right to possess the
premises than appellant. Thus, appellee contended that it was entitled to
judgment for possession of the premises and to the issuance of a writ of
possession. Appellee attached the substitute trustee’s deed, the deed of trust,
and the January 2014 letter instructing appellant to vacate the premises.
Appellant filed a response to appellee’s motion. He argued that he owned
an equitable interest in the property “stemming from a Residential Contract for
Deed” that conveyed Wempa’s interest to him. He contended that he had paid
substantial money toward the purchase of the property for more than five years.
He recognized that Wempa’s note had been accelerated and that the property
had been “purportedly sold at [a] foreclosure sale” to appellee, but he asserted
that his contract for deed created a title dispute that deprived the trial court of
jurisdiction. He argued, “In this matter the right to possession is dependent on
the Residential Contract for Deed through which [appellant] has an equitable
interest and therefore the justice court and the county court lack jurisdiction . . . .”
Finally, he argued that appellee had given him inadequate notice to leave the
premises under the Protecting Tenants at Foreclosure Act of 2009. 6 Appellant
6
Pub. L. No. 111-22, §§ 701–04, 123 Stat. 1632, 1660–62 (2009). This
statute originally had a sunset date of December 31, 2012, and Congress later
changed the sunset date to December 31, 2014, when the law expired. See Mik
v. Fed. Home Loan Mortg. Corp., 743 F.3d 149, 157 n.3 (6th Cir. 2014).
4
attached an affidavit stating facts concerning the contract for deed, his payment
of sums toward the purchase, and his alleged equitable ownership interest in the
premises. He also attached the contract for deed, which he and Wempa signed
in 2009.
The trial court granted appellee’s motion for summary judgment. Like the
justice court, the trial court entered a judgment awarding appellee possession of
the premises. Appellant brought this appeal. 7
Jurisdiction
In his first issue, appellant contends that the trial court erred by rendering
judgment in favor of appellee because he presented evidence showing a
legitimate title issue based on his equitable interest in the property, therefore
depriving the trial court of jurisdiction. As another intermediate appellate court
has explained,
The procedure to determine the right to immediate possession
of real property, if there was no unlawful entry, is the action of
forcible detainer. A forcible detainer action is a special proceeding
governed by particular statutes and rules. It was created to provide
a speedy, simple, and inexpensive means for resolving the question
of the right to possession of premises. . . . Thus, the sole issue in a
forcible detainer suit is who has the right to immediate possession of
the premises.
Rice, 51 S.W.3d at 709 (citations omitted).
A justice court or county court at law is not deprived of jurisdiction in a
forcible detainer action merely because of the existence of a title dispute.
7
See Tex. Prop. Code Ann. § 24.007(b).
5
Schlichting v. Lehman Bros. Bank FSB, 346 S.W.3d 196, 199 (Tex. App.—Dallas
2011, pet. dism’d); see Rice, 51 S.W.3d at 709 (“Forcible detainer actions in
justice courts may be brought and prosecuted concurrently with suits to try title in
district court.”). In most cases, “the right to immediate possession can be
determined separately from the right to title. The trial court is deprived of
jurisdiction only if the determination of the right to immediate possession
necessarily requires the resolution of the title dispute.” Schlichting, 346 S.W.3d
at 199; see also Girard v. AH4R I TX DFW, LLC, No. 02-13-00112-CV, 2014 WL
670198, at *2 (Tex. App.—Fort Worth Feb. 20, 2014, no pet.) (mem. op.)
(explaining that a “judgment of possession in a forcible detainer action is a
determination only of the right to immediate possession and does not determine
the ultimate rights of the parties to any other issue in controversy relating to the
realty in question”); Gibson v. Dynegy Midstream Servs., L.P., 138 S.W.3d 518,
522 (Tex. App.—Fort Worth 2004, no pet.) (“If . . . the question of title is so
integrally linked to the issue of possession that the right to possession cannot be
determined without first determining title, then the justice courts and, on appeal,
the county courts, lack jurisdiction over the matter.”).
“Where a foreclosure pursuant to a deed of trust establishes a landlord and
tenant-at-sufferance relationship between the parties, the trial court has an
independent basis to determine the issue of immediate possession without
resolving the issue of title to the property.” Schlichting, 346 S.W.3d at 199; see
Yarbrough v. Household Fin. Corp. III, 455 S.W.3d 277, 280 (Tex. App.—
6
Houston [14th Dist.] 2015, no pet.) (“[A] deed of trust may include a tenancy-at-
sufferance clause that creates a landlord-tenant relationship when the property is
foreclosed. Under these circumstances, a defendant’s complaints about defects
in the foreclosure process generally do not require a justice court to resolve a title
dispute before determining the right to immediate possession, and the justice
court has jurisdiction.” (citation and footnote omitted)); Pinnacle Premier Props.,
Inc. v. Breton, 447 S.W.3d 558, 564 (Tex. App.—Houston [14th Dist.] 2014, no
pet.) (op. on reh’g) (“[B]ecause the deed of trust contained a valid tenant-at-
sufferance clause, appellees do not allege a title dispute that is intertwined with
the right of immediate possession.”).
Appellant does not dispute that the evidence proves that a foreclosure
occurred, that appellee acquired the property, or that Wempa became a tenant at
sufferance under the terms of the deed of trust that she executed. But he argues
that his contract for deed gives him an equitable interest that precludes his
eviction. Appellee contends that any interest held by appellant was subject to the
lien held by the lender. Texas authority supports appellee’s position.
For example, in Breton, Melba and Howard Johnson executed a deed of
trust on property to secure payment of a note, and their interest was ultimately
transferred to Breton (along with other parties). 447 S.W.3d at 561. The
Johnsons defaulted under the note, and Pinnacle Premier Properties bought the
property at a foreclosure sale. Id. Although the Johnsons’ deed of trust had a
tenant-at-sufferance clause similar to the clause in this case, Breton argued that
7
he was not subject to the clause because he was not a party to the Johnsons’
deed of trust, and he therefore contended that a title dispute existed. Id. at 563–
64. Our sister intermediate appellate court rejected that argument, stating,
[A] deed of trust’s tenant-at-sufferance clause binds subsequent
occupants whose interests are junior to the deed of trust. . . . Thus,
a grantor subject to a tenant-at-sufferance clause cannot convey an
interest in the property free of the clause. In this regard, both the
party who agreed to the deed of trust initially and any subsequent
occupants become tenants-at-sufferance following foreclosure.
Id. at 564 (citations omitted); see Borunda v. Fed. Nat’l Mortg. Ass’n, No. 08-13-
00331-CV, 2015 WL 7281536, at *4 (Tex. App.—El Paso Nov. 18, 2015, no pet.
h.) (“Because Aurora Borunda encumbered her interest in the Property with a
deed of trust containing a tenant-at-sufferance clause, any party claiming a
derivative interest in the Property, including Linda Borunda, was also properly
subject to the deed of trust’s restrictions.”); Maxwell v. U.S. Bank Nat’l Ass’n,
No. 14-12-00209-CV, 2013 WL 3580621, at *4 (Tex. App.—Houston [14th Dist.]
July 11, 2013, pet. dism’d) (mem. op.) (“Generally, a deed of trust’s tenant-at-
sufferance clause binds subsequent occupants whose interests are junior to the
deed of trust.”); Black v. Washington Mut. Bank, 318 S.W.3d 414, 418 (Tex.
App.—Houston [1st Dist.] 2010, pet. dism’d) (holding that where a grantor was
subject to a deed of trust containing a tenant-at-sufferance clause, the grantee
was therefore also subject to the clause).
Under the cases above, through the tenant-at-sufferance clause in the
deed of trust, the trial court could determine the immediate right to possess the
8
property without resolving the ultimate issue of title to the property, and appellee
proved its superior right to possess the property. See Breton, 447 S.W.3d at
564–65; Schlichting, 346 S.W.3d at 199; see also Ford v. US Bank Nat’l Ass’n,
No. 01-07-00183-CV, 2008 WL 4670514, at *3 (Tex. App.—Houston [1st Dist.]
Oct. 23, 2008, no pet.) (mem. op.) (holding that an intervening purchaser was
subject to a tenant-at-sufferance clause in a deed of trust and that possession
rights to the property could therefore be determined without resolving the ultimate
issue of title to the property). We hold that the trial court had jurisdiction to grant
relief to appellee, and we overrule appellant’s first issue. 8 See Breton, 447
S.W.3d at 565.
Federal Law
In his second issue, appellant argues that appellee failed to give appellant
adequate notice to leave the premises under the federal Protecting Tenants at
Foreclosure Act of 2009. That law protected bona fide tenants who paid rent
from forcible entry and detainer suits when their landlords’ property was
foreclosed upon and sold. Pub. L. No. 111-22, § 702, 123 Stat. at 1660–61; see
Mik, 743 F.3d at 157 (“Congress enacted the PTFA as a temporary
measure during the mortgage foreclosure crisis. The PTFA protect[ed] tenants
who reside[d] in properties that [were] subject to foreclosure by imposing certain
obligations on successors in interest to foreclosed properties.” (footnote
8
We express no opinion on any title issues concerning the property.
9
omitted)). Specifically, it provided that a purchaser of property through
foreclosure—a “successor in interest”—assumed its interest in the property
subject to
(1) the provision, by such successor in interest of a notice to
vacate to any bona fide tenant at least 90 days before the effective
date of such notice; and
(2) the rights of any bona fide tenant, as of the date of such
notice of foreclosure--
(A) under any bona fide lease entered into before
the notice of foreclosure to occupy the premises until
the end of the remaining term of the lease, except that a
successor in interest may terminate a lease effective on
the date of sale of the unit to a purchaser who will
occupy the unit as a primary residence, subject to the
receipt by the tenant of the 90 day notice under
paragraph (1); or
(B) without a lease or with a lease terminable at
will under state law, subject to the receipt by the tenant
of the 90 day notice under subsection (1), except that
nothing under this section shall affect the requirements
for termination of any federal- or State-subsidized
tenancy or of any State or local law that provides longer
time periods or other additional protections for tenants.
Pub. L. No. 111-22, § 702(a)(1)–(2), 123 Stat. at 1661. But a lease or tenancy
was only “bona fide,” and therefore subject to the Act’s requirements, when the
lease or tenancy preexisted foreclosure, was the result of an arms-length
transaction, and required payment of rent. Id. § 702(b)(2)–(3), 123 Stat. at 1661.
Here, the record does not contain any evidence establishing that appellant
was a bona fide tenant or possessed the property through a bona fide lease
10
before the foreclosure and sale of the property to appellee, 9 nor does appellant
provide sufficient analysis in his briefing about how or why the Act applies to him.
Thus, appellant cannot show that the Act applies or that the trial court’s judgment
is erroneous based on appellee’s failure to comply with it. We overrule
appellant’s second issue.
Conclusion
Having overruled both of appellant’s issues, we affirm the trial court’s
judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.
DELIVERED: December 10, 2015
9
In fact, appellant’s position that he has a claim to title of the property by
the contract for deed seems to be at odds with any contention that he qualifies as
a tenant who leased the property before the foreclosure. Appellant cites no
authority establishing that the Act applied under circumstances similar to those
here, and we have found none. Cf. Konover Residential Corp. v. Elazazy, 148
Conn. App. 470, 476, 87 A.3d 1114, 1118 (2014) (“The act [was] designed to
protect residential tenants from immediate eviction when, as a result of
foreclosure proceedings, there [was] a change in the identity of their landlords
and in the new landlord’s plans for the property.”).
11