Marlene W. Mitchell v. Wilmington Savings Funds Society, FSB, D/B/A Christiana Trust as Owner Trustee of the Residential Credit Opportunities Trust III

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00089-CV
___________________________

MARLENE W. MITCHELL, Appellant

V.

WILMINGTON SAVINGS FUNDS SOCIETY, FSB, D/B/A CHRISTIANA TRUST
AS OWNER TRUSTEE OF THE RESIDENTIAL CREDIT OPPORTUNITIES
TRUST III, Appellee

On Appeal from County Court at Law No. 1
Tarrant County, Texas
Trial Court No. 2017-005148-1

Before Sudderth, C.J.; Kerr and Pittman, JJ.
Memorandum Opinion by Chief Justice Sudderth
 MEMORANDUM OPINION

I. Introduction

Pro se Appellant Marlene W. Mitchell appeals the county court at law’s

judgment awarding possession of 1402 Cliffwood Road, Euless, Texas, 76040 (the

property), and court costs to Appellee Wilmington Savings Funds Society, FSB, d/b/a

Christiana Trust as Owner Trustee of the Residential Credit Opportunities Trust III

(Wilmington-RCOT). We affirm.

II. Background

On February 24, 2016, the 48th District Court of Tarrant County issued a

judicial foreclosure judgment allowing Wilmington Savings Fund Society, FSB d/b/a

Christiana Trust as trustee of the American Mortgage Investment Partners Fund I

Trust (Wilmington-AMI) to foreclose on the property.1 Mitchell did not appeal this

judgment.

1
In 2007, Mitchell signed a deed of trust granting a security interest in the
property to World Savings Bank, FSB, and its “successors and/or assignees.” The
deed of trust provided that if Mitchell did not make her monthly payment on the loan
that was secured by the deed of trust, the lender could accelerate the debt and, if
unpaid, invoke the power of sale “as may be permitted by court order,” after which
Mitchell would have to immediately surrender possession of the property or become
“a tenant at sufferance” who could be removed by writ of possession.

In 2012, Wells Fargo, N.A., which had become the successor by merger to
Wachovia Mortgage, FSB f/k/a World Savings Bank, FSB, assigned the deed of trust
to U.S. Bank National Association, as Trustee for Stanwich Mortgage Loan Trust,
Series 2012-9. In January 2014, U.S. Bank National Association, as Trustee for
Stanwich Mortgage Loan Trust, Series 2012-9, assigned the deed of trust to Kondaur
Capital Corporation, as Separate Trustee of Matawin Ventures Trust Series 2013-4.
2
 More than a half a year later, on September 6, 2016, the property was sold

pursuant to the judicial foreclosure judgment to Wilmington-RCOT, which received a

constable’s deed. Wilmington-RCOT then issued a “Notice to Vacate and Demand

for Possession,” informing Mitchell that if she did not vacate the property, it would

file suit to evict her. Mitchell did not vacate the property. Wilmington-RCOT filed a

sworn complaint for eviction in justice court, and Mitchell answered, denying that she

owed anything because she had no contract with Wilmington-RCOT.

Almost a year after the property’s sale to Wilmington-RCOT,2 the justice court

decreed that Wilmington-RCOT was entitled to recover possession of the premises.

See Mitchell, 2018 WL 4626396, at *1. Mitchell appealed to the county court at law. Id.

A few days later, Wilmington-RCOT filed its business records affidavit and trial

exhibits.

On February 2, 2018, the county court at law held a pretrial hearing and

attempted to explain to Mitchell that if Wilmington-RCOT established at trial that it

had the appearance of title and had given notice as required by the property code, it

Ten months later, Kondaur Capital Corporation, as Separate Trustee of Matawin
Ventures Trust Series 2013-4, assigned the deed of trust to Kirkland Financial LLC.
In November 2014, Kirkland Financial LLC assigned the deed of trust to
Wilmington-AMI.
2
Although the eviction suit was filed in November 2016, it was not tried until
August 2017 because Mitchell filed two bankruptcy petitions in rapid succession and
then removed the eviction case to federal court. See Mitchell v. Wilmington Sav. Funds
Soc’y, FSB, No. 02-18-00089-CV, 2018 WL 4626396, at *1 (Tex. App.—Fort Worth
Sept. 27, 2018, no pet.) (mem. op. on mot. for review of supersedeas order).

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would be entitled to judgment of possession as a matter of law, that possession was

the only issue in the case, and that she could not collaterally attack the foreclosure

judgment in this case because the county court at law’s jurisdiction was only over

possession and not determination of title.

Three days later, the county court at law again tried to explain to Mitchell that

she was not there “to argue the chain of title” and that the forcible detainer action was

not the proper forum to attack the foreclosure judgment. It then heard the case de

novo and rendered a judgment of possession and for court costs for Wilmington-

RCOT after admitting into evidence, without any objection from Mitchell at trial,

copies of the foreclosure judgment, the constable’s deed, the notice to vacate and

demand for possession, the deed of trust that placed the lien on the property, and the

various assignments of the deed of trust, all sponsored by a business records affidavit

filed by Wilmington-RCOT. See id.

As pertinent to this appeal, on the morning of trial, Wilmington-RCOT’s

attorney objected to Mitchell’s twelve exhibits,3 which she described as “[t]he chain of

information that chases the chain of title from the property from the beginning.”

3
Mitchell also filed several documents before trial, including a motion for
continuance on the morning of trial in which she asserted that her “written offers to
discharge any alleged debt associated with this case” had been “verbally rejected on
the grounds that Plaintiff believes the offers to ‘not be worth the paper they are
written on.’”

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Mitchell’s “Defendant’s List of Exhibits,” however, only set out ten, not twelve,

items:

(1) “Chain of Information about 1402 Cliffwood Rd., Euless, TX”;

(2) “Notice of Offer of Tender August 31, 2017”;

(3) “Notice of Remittance Package September 11, 2017”;

(4) “Defendant’s Answer to Plaintiff’s Affidavit September 29, 2017”;

(5) “Motion for Production of Evidence September 29, 2017”;

(6) “Notice of Indemnification of Case November 16, 2017”;

(7) “Motion for Correction of the Record filed on December 11, 2017”;

(8) “Request for Affirmative Relief filed January 19, 2018”;

(9) “Defendant’s Affidavit of All Rights Reserved January 22, 2018”;

(10) “Motion to Resolve Dispute January 30, 2018.”

Wilmington-RCOT objected to relevance on Mitchell’s first, second, third,

fourth, and ninth exhibits. See Tex. R. Evid. 401 (stating that evidence is relevant if it

has a tendency to make a fact of consequence in determining the action more or less

probable than it would be without the evidence). It also objected to Mitchell’s first

exhibit on the basis of hearsay. See Tex. R. Evid. 801 (defining hearsay as an out-of-

court statement offered to prove the truth of the matter asserted therein), 802 (stating

that hearsay is not admissible unless a statute, the rules of evidence, or other rules

prescribed under statutory authority provide otherwise).

5
 Wilmington-RCOT objected on the basis of rule of evidence 408 to Mitchell’s

second and third exhibits. See Tex. R. Evid. 408(a) (providing that evidence that a

party furnished, promised, or offered—or accepted, promised to accept, or offered to

accept—a settlement offer and evidence of conduct or statements made during

settlement negotiations “is not admissible either to prove or disprove the validity or

amount of a disputed claim”). The trial court added Mitchell’s sixth, eighth, and tenth

exhibits to the rule 408 category. See id.

Wilmington-RCOT also objected to Mitchell’s fourth and ninth exhibits,

arguing that they were conclusory, would confuse the issues, and would go into issues

that had no relation to immediate possession or were unfairly prejudicial. The trial

court sustained all of Wilmington-RCOT’s objections.

The trial court also declined to admit Mitchell’s fifth exhibit because it was a

motion and declined to admit her seventh exhibit because it was “attacking the record

of title.” It did not state why Mitchell’s eleventh exhibit was not admitted. It did not

admit Mitchell’s twelfth exhibit, which she said was “to show possession,” because

Wilmington-RCOT stipulated that she was in possession of the property. Mitchell

then asked the trial court, “So in essence you have eliminated all my evidence?”

When the trial court indicated that it had, Mitchell responded, “Of course, I object to

that,” but she did not make an offer of proof. Cf. Tex. R. App. P. 33.1(a)(1)(B); Tex.

R. Evid. 103(a)(2). While her “Defendant’s List of Exhibits,” listing ten of the twelve

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items she attempted to offer into evidence, was filed in the clerk’s record, only nine of

the items were filed in the clerk’s record.

After a brief, off-the-record discussion, Mitchell waived her jury. When the

trial court denied Mitchell’s motion for continuance and asked her if she had anything

else she wanted to say, Mitchell replied:

Well, what I wanted to say, I am here by special appearance. [4] I
came to resolve and discharge the debt.[5] My exhibits were integral to
me putting on a defense, and I feel that I have been denied my remedy.

You’ve been polite about it and all that. But if my evidence is not
allowed to come forward and I’m not allowed to explain the law behind
the things that have happened or the facts, or if the Plaintiff is not
required to bring forth any kind of documentation that . . . Wilmington
is indeed the holder in due course[6] of the right to foreclosure, then I
have not been able to have a remedy here.

4
Based upon the record before us, Mitchell appears to have been mistaken in
this assertion. A “special appearance” is the manner by which a defendant may object
to the court’s jurisdiction over her person or property “on the ground that such party
or property is not amenable to process issued by the courts of this State.” Tex. R.
Civ. P. 120a(1). A special appearance must be filed prior to any other plea, pleading,
or motion. Id. Mitchell never filed a special appearance in this case; she filed an
answer in the justice court on August 24, 2017, and an answer in the county court at
law on September 29, 2017.

Again, Mitchell appears to have been mistaken as to the scope of an eviction
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proceeding. An eviction suit involves recovering the possession of property under
property code chapter 24, not the resolution or discharge of liens on the property. See
Tex. R. Civ. P. 510.1–.13 (“Eviction Cases”); see generally Tex. Prop. Code Ann.
§§ 24.001–.011 (West 2014 & Supp. 2018) (“Forcible Entry and Detainer”).

A “holder in due course” is a transactional term of art that appears to have no
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applicability to the facts here. A holder of a negotiable instrument becomes a “holder
in due course” when it takes the instrument for value; in good faith; and without
notice that it was overdue, dishonored, had an uncured default, contained an
unauthorized signature or alteration, had claims to it, or that any party had a defense
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 III. Discussion

Mitchell argues that critical evidence was excluded at trial that would have

changed the case’s ultimate outcome and that “trying to make [this case] only about

forcible detainer is a grave misunderstanding.”7 We agree that a grave

misunderstanding of the law is present in this case, but the misunderstanding appears

to be entirely Mitchell’s. She acknowledges that she was informed at trial that the

only issue before the county court in the forcible detainer action was possession. And

the trial court was entirely correct in so limiting the parameters of the proceeding. See

Tex. R. Civ. P. 510.3(e); Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782, 785

(Tex. 2006) (“The only issue in a forcible detainer action is the right to actual

possession of the premises.”).

or claim in recoupment, and the negotiable instrument, when issued or negotiated to
the holder, does not bear apparent evidence of forgery or alteration or was not
otherwise so irregular or incomplete as to call into question its authenticity. See Tex.
Bus. & Com. Code Ann. §§ 3.302, .305, .306 (West 2002 & Supp. 2018). As the
property was sold directly to Wilmington-RCOT pursuant to the judicial foreclosure
judgment, there is no “holder in due course” issue under these facts.
7
Mitchell argues that Wilmington-RCOT had no standing; however, pursuant
to the constable’s deed, it had standing to bring its forcible detainer action. See Tex.
R. Civ. P. 510.1, 510.3. Her remaining arguments—that Wilmington-RCOT is not the
holder of a legitimate debt, that Wilmington-RCOT is not a holder in due course, that
she has no contractual relationship with Wilmington-RCOT, that Wilmington-RCOT
has no right of foreclosure, that Wilmington-RCOT has received instruments that
would have discharged her alleged debt, and that her alleged debt was discharged
when she made an “offer of tender” under Uniform Commercial Code 3-603—are
not issues in a forcible detainer case. See Tex. R. Civ. P. 510.3(e) (stating that the only
issue in a forcible detainer is the right to actual possession of the property).

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 We review a trial court’s evidentiary rulings for an abuse of discretion. Gharda

USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015). A trial court abuses its

discretion if the court acts without reference to any guiding rules or principles, that is,

if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007);

Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).

But before we consider whether an abuse of discretion has occurred, the error

must be preserved for our review. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(2).

No amount of inapplicable legal principles or misused legal jargon can overcome the

threshold requirement that error, if any, must be preserved. And, at the end of the

day, Mitchell failed to make the required offer of proof at trial necessary to preserve

her evidentiary complaints.

Moreover, even if we could consider the nine items that were filed in the clerk’s

record, Mitchell has not challenged any of the legal bases upon which the trial court

sustained Wilmington-RCOT’s objections or explained how the trial court abused its

discretion under the applicable rules of civil procedure and evidence. See Tex. R. App.

P. 38.1(i); see also Barcroft v. Walton, No. 02-16-00110-CV, 2017 WL 3910911, at *5 &

n.11 (Tex. App.—Fort Worth Sept. 7, 2017, no pet.) (mem. op.) (explaining that pro

se litigants are held to the same standards as licensed attorneys and must comply with

all applicable rules to ensure fairness in the treatment of all litigants through the use of

a single set of rules and observing that pro se litigants are hampered by their lack of

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legal education or training, which tends to lead them into critical mistakes of form and

substance). Accordingly, we overrule Mitchell’s issues.

IV. Conclusion

Having overruled Mitchell’s issues, we affirm the trial court’s judgment.

/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice

Delivered: January 10, 2019

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