In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00076-CV
___________________________
JOSEFINA MARTINEZ, JUAN MARTINEZ AND/OR ALL OTHER OCCUPANTS
OF 1704 CRIMSON CT., ARLINGTON, TX, 76018, Appellants
V.
CERBERUS SFR HOLDINGS, L.P., Appellee
On Appeal from County Court at Law No. 1
Tarrant County, Texas
Trial Court No. 2018-006342-1
Before Sudderth, C.J.; Birdwell and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
This is an appeal from a judgment for possession entered by the trial court in a
forcible entry and detainer (FED) proceeding. The judgment awards Appellee
Cerberus SFR Holdings, L.P. possession of real property occupied by Appellants
Josefina and Juan Martinez as their residence. The four points that Appellants raise
on appeal, in essence, collapse into an attack on the form of the Substitute Trustee’s
Deed that underlies Appellee’s claim of title. That argument is not one properly
raised in an FED action; instead, the argument should be raised in a separate suit
attacking the foreclosure. Thus, challenges based on the form of a Substitute
Trustee’s Deed are beyond our purview in this appeal, and we overrule all four of
Appellants’ points.
II. Factual and Procedural Background and Points Raised on Appeal
Appellee filed an original petition for forcible detainer in justice court that
recited that (1) Appellee had acquired title through a Substitute Trustee’s Deed; (2) the
foreclosure of the underlying deed of trust made Appellants tenants at sufferance;
(3) by virtue of the foreclosure, Appellee had become Appellants’ landlord;
(4) Appellee had served written demand on Appellants to vacate the property; and
(5) Appellants had refused to vacate. The clerk’s record is apparently incomplete in
view of the following statement in Appellants’ brief: “[Appellants] filed their pleas in
abatement and to jurisdiction, and answer subject to such pleas in the Justice Court,
2
Precinct 7, on September 5, 2018[,] but such does not appear to be a part of the
County Clerk’s record for reasons unknown to [Appellants].” However, no one
disputes that the matter was appealed to the county court at law. That court
conducted a trial de novo at which it received into evidence the Substitute Trustee’s
Deed, the underlying Deed of Trust, and a business records affidavit to which notices
to vacate were attached. The county court at law signed a judgment for possession,
awarding Appellee possession of the subject property and setting the amount of a
supersedeas bond.
Appellants requested findings of fact and conclusions of law and also filed a
motion for new trial. The trial court did not make findings, nor did it enter a written
order ruling on the motion for new trial.1 Appellants then perfected an appeal to this
court.
As we are able to interpret them, the four points raised by Appellants are as
follows:
• Appellee failed to make an adequate presuit demand that Appellants
vacate the subject property because defects in the Substitute Trustee’s
Appellants raise no point about the failure of the trial court to make findings
1
of fact and conclusions of law. Further, the record contains no notice of past-due
findings. See Tex. R. Civ. P. 297. Thus, any complaint about that failure is waived.
See Ad Villarai, LLC v. Pak, 519 S.W.3d 132, 137 (Tex. 2017) (“We have held that a
party waives its right to challenge a failure to file findings if it does not file a notice of
past[-]due findings as rule 297 requires.”).
3
Deed invalidated that deed and thus invalidated both Appellee’s claim of
title and its right to demand possession.
• Because of the claimed defects in the Substitute Trustee’s Deed,
Appellee lacked standing to claim possession of the subject property.
• Because of the claimed defects in the Substitute Trustee’s Deed, that
deed should not have been accorded a presumption of validity.
• The fact that the lender identified in the Deed of Trust and the holder of
the note named in the Substitute Trustee’s Deed do not match
established that the trial court erred by awarding Appellee possession.
Further, the record does not establish that Appellants had refused to
vacate the subject property after receiving Appellee’s demand to vacate.
For the reasons detailed below, we overrule each of Appellants’ points.
III. Applicable Law
“A person who refuses to surrender possession of real property on demand
commits a forcible detainer if the person . . . is a tenant at will or by sufferance,
including an occupant at the time of foreclosure of a lien superior to the tenant’s
lease . . . .” Tex. Prop. Code Ann. § 24.002(a)(2). Specifically, in an FED action
arising after a foreclosure, the plaintiff carries the burden to establish four elements:
(1) the substitute trustee conveyed the property by deed to appellees
after the foreclosure sale; (2) the deed of trust signed by appellants
established a landlord[–]tenant relationship between appellants and
4
appellees; (3) appellees gave proper notice to appellants to vacate the
premises; and (4) appellants refused to vacate the premises.
Pruitt v. Scott, No. 10-18-00211-CV, 2019 WL 1831646, at *1 (Tex. App.—Waco
Apr. 24, 2019, pet. denied) (mem. op.).
It is axiomatic that the only issue litigated in an FED action is the superior right
to actual and immediate possession. Title should not be litigated. Simply put,
[a] forcible-detainer action is used to determine the superior right to
actual and immediate possession of real property. See Tex. R. Civ. P.
510.3(e) (stating that in a forcible[-]detainer action, “[t]he court must
adjudicate the right to actual possession and not title”); see also Diffley v.
Fed. Nat’l Mortg. Ass’n, No. 02-13-00403-CV, 2014 WL 6790043, at *1
(Tex. App.—Fort Worth Nov. 26, 2014, no pet.) (mem. op.); Williams v.
Bank of New York Mellon, 315 S.W.3d 925, 926–27 (Tex. App.—Dallas
2010, no pet.). The only issue in a forcible-detainer action is which party
has the superior right to immediate possession. See Dyhre v. Hinman, No.
05-16-00511-CV, 2017 WL 1075614, at *2 (Tex. App.—Dallas Mar. 22,
2017, pet. denied) (mem. op.) (citing Williams, 315 S.W.3d at 927); Rice v.
Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.).
Jimenez v. McGeary, 542 S.W.3d 810, 812 (Tex. App.—Fort Worth 2018, pet. denied);
see Black v. Wash. Mut. Bank, 318 S.W.3d 414, 417 (Tex. App.—Houston [1st Dist.]
2010, pet. dism’d w.o.j.) (stating that a court’s determination “of possession in a
forcible[-]detainer action is a determination only of the right to immediate possession
of the premises, and does not determine the ultimate rights of the parties to any other
issue in controversy relating to the realty in question”).
A plaintiff in an FED action establishes the superior right to immediate
possession by establishing the fact of a foreclosure pursuant to a deed of trust that
created a tenancy at sufferance after the foreclosure. See U.S. Bank Nat’l Ass’n v.
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Freeney, 266 S.W.3d 623, 625–26 (Tex. App.—Dallas 2008, no pet.) (“The foreclosure
pursuant to the deed of trust established a landlord and tenant-at-sufferance
relationship between appellee and appellant, and that landlord[–]tenant relationship
provides a basis for determining the right to immediate possession.”).
As the First Court of Appeals explained,
[a] plaintiff in a forcible[-]detainer action is not required to prove title[]
but is only required to show sufficient evidence of ownership to
demonstrate a superior right to immediate possession. Under well-
settled law, a deed of trust that establishes a landlord[–]tenant
relationship between the borrower and the purchaser of the property at
the foreclosure sale demonstrates such a superior right to possession. . . .
The deed of trust makes [appellant] a tenant at sufferance in the
event of foreclosure if she fails to surrender possession of the property.
Although [appellant] disputes the propriety of the foreclosure, there is
no dispute that HSBC did foreclose and that [appellant] failed to
surrender the property. Thus, [appellant] became a tenant at sufferance,
and this landlord[–]tenant relationship gives [appellee] a basis for its
forcible[-]detainer action independent of its claim to title in the property.
The justice court and county court therefore did not need to determine
whether HSBC [had] satisfied all conditions precedent to the tenancy-at-
sufferance clause or [had] properly executed the foreclosure sale.
Bierwirth v. AH4R I TX, LLC, No. 01-13-00459-CV, 2014 WL 5500487, at *5 (Tex.
App.—Houston [1st Dist.] Oct. 30, 2014, no pet.) (mem. op.); see Trimble v. Fed. Nat’l
Mortg. Ass’n, 516 S.W.3d 24, 29 (Tex. App.—Houston [1st Dist.] 2016, pet. denied)
(“Because a forcible-detainer action’s purpose is not to establish title, a plaintiff
bringing a forcible-detainer action ‘is not required to prove title[] but is only required
to show sufficient evidence of ownership to demonstrate a superior right to immediate
possession.’” (quoting Black, 318 S.W.3d at 417)).
6
The arena to challenge the propriety of a foreclosure is not in an FED suit but
in a separate suit for wrongful foreclosure or to set aside a substitute trustee’s deed.
See Trimble, 516 S.W.3d at 29 (holding that the validity of the foreclosure sale can be
challenged in an adjudication of title because “regardless of the resolution of the
forcible-detainer action; parties ‘have the right to sue in the district court to determine
whether the trustee’s deed should be cancelled, independent of the award of
possession of the premises in the forcible[-]detainer action’” (quoting Black, 318
S.W.3d at 417)); Williams, 315 S.W.3d at 927 (“Any defects in the foreclosure process
or with appellee’s title to the property may not be considered in a forcible[-]detainer
action. Those defects may be pursued in suits for wrongful foreclosure or to set aside
the substitute trustee’s deed, but they are not relevant in this forcible[-]detainer
action.”).
In essence, the division of responsibility between a district court’s hearing a
title issue and a county court’s hearing an appeal of an FED action recognizes that
“the legislature contemplated concurrent actions in the district and justice courts to
resolve issues of title and immediate possession, respectively.” Rice, 51 S.W.3d at 710.
An FED action serves the role of “a speedy, simple, and inexpensive means for
resolving the question of the right to possession of premises.” Id. at 709. “To
preserve the simplicity and speedy nature of the remedy, the applicable rule of civil
procedure provides that ‘the only issue shall be as to the right to actual possession;
and the merits of the title shall not be adjudicated.’” Id. (quoting former Tex. R. Civ.
7
P. 746, now replaced by Tex. R. Civ. P. 510.3(e), which provides that “[t]he court
must adjudicate the right to actual possession and not title”).
IV. Analysis
A. Each of the points raised by Appellants is based on a challenge to the
Substitute Trustee’s Deed by which Appellee claims a superior right to
possession of the property. Appellants cannot attack the form of the deed in
an FED action.
The principle that an FED action cannot be used as a vehicle to litigate title
issues establishes why Appellants cannot raise the central issue that they relied on
below and reurge in this court. The prop of Appellants’ arguments is that Appellee
“never demonstrated its true entitlement to claim a superior right of possession,
offering a substitute trustee[’s] deed containing deficient affidavits that were really no
affidavits at all.” The affidavits that Appellants attack are attached to the Substitute
Trustee’s Deed. An attack on the form of affidavits attached to a substitute trustee’s
deed raises an issue of title that cannot be litigated in an FED suit.
This court has previously dealt with a claim “that the deed tendered to the
court by Freddie Mac was insufficient to support a prima facie claim of title” because
“the affidavit [did] not state that it was based on the affiant’s unqualified personal
knowledge.” See Couch v. Fed. Home Loan Mortg. Corp., No. 02-10-00261-CV, 2011 WL
1103684, at *2 (Tex. App.—Fort Worth Mar. 24, 2011, no pet.) (mem. op.) (citing
Tex. Prop. Code Ann. § 51.002(e) (requiring the affidavit to be made by “a person
knowledgeable of the facts”)). We held that a challenge to an affidavit attached to a
8
substitute trustee’s deed is not properly raised in an FED suit and marshaled the
precedent from this and other courts to support that proposition:
We have recently held that the challenge to the sufficiency of the
affidavit is an attack on the validity of the foreclosure and sale of the
property, which cannot be raised in a forcible[-]detainer case. See Fleming
v. Fannie Mae, No. 02-09-00045-CV, 2010 WL 4812983, at *4 (Tex.
App.—Fort Worth Nov. 24, 2010, no pet.) (mem. op.); see also Rodriguez
v. Citimortgage, Inc., No. 03-10-00093-CV, 2011 WL 182122, at *3 (Tex.
App.—Austin Jan. 6, 2011, no pet. []) (mem. op.) (overruling same
argument); Shutter v. Wells Fargo Bank N.A., 318 S.W.3d 467, 471 (Tex.
App.—Dallas 2010, pet. dism’d w.o.j.) (op. on reh’g) (same); Williams,
315 S.W.3d at 927 (same).
Id. Appellants do not cite Couch, nor do they offer any challenge to the basis of its
holding. Thus, we apply Couch and hold that Appellants’ challenge to the form of the
affidavits attached to the Substitute Trustee’s Deed may not be litigated in this FED
suit, collapsing the argument that is the prop for each of Appellants’ points on appeal.
1. The claim that the Substitute Trustee’s Deed lacked an appropriate
affidavit is not so intertwined with the right to possession that the trial
court lacked jurisdiction to hear the FED action.
Appellants try to avoid the impact of the holding in Couch by citing us to our
decision in A Plus Investments, Inc. v. Rushton and its holding that if an issue of title is
sufficiently intertwined with the issue of possession, a court hearing an FED suit lacks
jurisdiction to resolve the question of possession. No. 02-03-00174-CV, 2004 WL
868866, at *2–3 (Tex. App.—Fort Worth Apr. 22, 2004, no pet.) (mem. op.). A Plus
dealt with a situation in which a home-equity lender obtained an order permitting
foreclosure; but the foreclosure was conducted by another party, and nothing in the
9
record showed that party had obtained an order permitting it to foreclose. Id. We
concluded that this “failure to connect the dots [was] fatal to A Plus’s case” and that
the issue of title and the immediate right to possession were so intertwined that the
county court lacked jurisdiction to hear the FED suit. Id.
As we noted above, this court and others have held that an alleged defect in an
affidavit attached to a substitute trustee’s deed should not be heard in an FED action.
The implication is that this issue is not so intertwined with title that a county court
hearing an FED appeal lacks jurisdiction when the occupant of the property claims a
substitute trustee’s deed contains a defective affidavit.
Other courts are more explicit in limiting the holding of A Plus. As set forth
above, the question of a superior right to possession is usually resolved with proof of
a foreclosure of a deed of trust that provides that after foreclosure, the former owner
and now occupant of the property is a tenant at sufferance. See Rice, 51 S.W.3d at
710–13 (summarizing case law discussing how superior right to possession is created
by foreclosure of deed of trust making property occupants tenants at sufferance); see
also Reardean v. Fed. Home Loan Mortg. Corp., No. 03-12-00562-CV, 2013 WL 4487523,
at *3 (Tex. App.—Austin Aug. 14, 2013, no pet.) (mem. op.) (“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.”).
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Without stating a blanket rule, it appears that this superior right is
demonstrated when a substitute trustee’s deed passes title to an FED plaintiff with
proof that a deed of trust created a tenant-at-sufferance relationship with the former
property occupant upon foreclosure. See Rice, 51 S.W.3d at 711–12; see also Reardean,
2013 WL 4487523, at *3. A challenge to the form of the trustee’s deed does not
forestall a claim of superior title. See Kaldis v. Aurora Loan Servs., No. 01-09-00270-CV,
2010 WL 2545614, at *3 (Tex. App.—Houston [1st Dist.] June 24, 2010, pet. dism’d
w.o.j.) (mem. op.) (holding that whether substitute trustee’s deed was “void” or
“deficient” or whether there was a “gap in the chain of title/ownership” was outside
of the scope of the forcible-detainer action). Indeed, A Plus dealt with a title issue
that was of a different order of magnitude than a challenge to the form of the
substitute trustee’s deed. The issue in A Plus was not one in which the substitute
trustee’s deed might be challenged because of a defect in form but instead dealt with a
lack of statutory authority to foreclose that created a question about whether the party
filing the FED action held any right to possession at all. 2004 WL 868866, at *2.2
2
This court stated in A Plus,
Therefore, in order for CitiFinancial to have the right to foreclose on the
[appellee’s] home, it would have needed to obtain an order from the
district court.
In this case, however, Associates was the only entity that obtained
such an order. Simply put, the requirements of the Texas [c]onstitution,
which were also part of this home equity security instrument, were
disregarded. See Tex. Const. art. XVI[,] § 50(a)(6)(D). Absent the right
11
The point that Appellants raise does not present the same fundamental issue of
whether the party filing an FED suit has even a semblance of title to support its right
to possession and thus, did not involve an issue so intertwined with the question of
title that the county court at law lacked jurisdiction to hear the FED action.
2. The challenge that Appellants raise to the form of the Substitute
Trustee’s Deed would not automatically void the foreclosure sale.
As we interpret Appellants’ argument, they attack the affidavits by claiming that
the affiants qualified the basis of their personal knowledge when they stated that it
was “to the best” of their knowledge. Thus, Appellants challenge whether there is
adequate proof that they were given the notices required by Subsections 51.002(b) and
(d) of the Property Code. See Tex. Prop. Code Ann. § 51.002(b) (requiring posting
and sending notice of sale), § 51.002(d) (requiring sending notice of default and
opportunity to cure). Appellants’ challenge is not to the fact of notice but whether
the affidavits conformed to Subsection (e) of Section 51.002 that states when service
of a notice is complete and that an affidavit may be used as prima facie proof of
service. See id. § 51.002(e) (“Service of a notice under this section by certified mail is
complete when the notice is deposited in the United States mail, postage prepaid and
addressed to the debtor at the debtor’s last known address. The affidavit of a person
to foreclose, CitiFinancial could not transfer ownership of the property
to A Plus. See id.
2004 WL 868866, at *2.
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knowledgeable of the facts to the effect that service was completed is prima facie
evidence of service.”).
Even if the affidavits were flawed, that does not automatically make the
foreclosure wrongful. If Appellants had filed a wrongful-foreclosure action, Appellee
would not have had to rely solely on the affidavits that established prima facie proof
under Section 51.002(e) and could have established that notice was sent by offering
proof beyond the statements in the affidavits attached to the Substitute Trustee’s
Deed. See Covarrubias v. U.S. Bank, N.A., No. 3:13-CV-3002-B, 2015 WL 221083, at
*8 (N.D. Tex. Jan. 15, 2015) (mem. op. & order) (holding that summary-judgment
proof established sending of notices pursuant to Subsections 51.002(b) and (d));
Thompson v. Bank of Am., N.A., 13 F. Supp. 3d 636, 645–46 (N.D. Tex. 2014) (mem.
op. & order) (holding that notice was sent in accordance with the Texas Property
Code when a defendant moving for summary judgment had relied on an affidavit
describing when notices were sent and citing to documents containing a receipt-for-
certified-mail form), aff’d, 783 F.3d 1022 (5th Cir. 2015); Alanis v. US Bank Nat’l Ass’n,
489 S.W.3d 485, 501–02 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) (holding
that evidence presented at trial on suit to set aside foreclosure by loan servicer showed
service of notices of default required by Section 51.002(d)).
Appellants also cite us to Sauceda v. GMAC Mortgage Corp., 268 S.W.3d 135,
139–40 (Tex. App.—Corpus Christi–Edinburg 2008, no pet.). The relevance of
13
Sauceda is unclear. That case did not involve a defect in an affidavit but rather the
effect of a failure to serve a valid notice. As the Fifth Circuit explained,
In interpreting Section 51.002(e), Texas courts have recognized that the
dispositive inquiry “is not receipt of notice, but, rather, service of notice.”
For that reason, they have held there to be no genuine dispute as to the
sending of notices required under Section 51.002 when the sole
contravening evidence is the homeowner’s affidavit asserting non-
receipt. Adebo [v. Litton Loan Servicing, L.P., No. 01-07-00708-CV], 2008
WL 2209703, at *4 [(Tex. App.—Houston [1st Dist.] 2008, no pet.)
(mem. op.)]. LSR points out that in Sauceda v. GMAC Mortgage Corp., 268
S.W.3d 135, 140 (Tex. App.—Corpus Christi[–Edinburg] 2008, no pet.),
the court held that the homeowner’s testimony of non-receipt created a
fact issue as to whether he was served with the statutorily required
notice. Unlike here and in Adebo, however, in Sauceda the mortgage
servicer provided no supporting documentation showing that it had
served notice.
LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534–35 (5th Cir. 2016)
(footnotes omitted).
B. Resolution of Appellants’ points
The fact that each of Appellants’ points turns on a question of title
demonstrates the overall invalidity of those points. But for the sake of thoroughness,
we will address each point separately.
1. First Point—Lack of Notice to Vacate
In their first point, Appellants argue that “there was not a statutorily sufficient
pre-suit demand for possession to support Appellee’s claims.” Appellants correctly
cite the governing statute for an FED action that specifies a demand for possession
“must be made in writing by a person entitled to possession of the property and must
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comply with the requirements for notice to vacate under Section 24.005.” See Tex.
Prop. Code Ann. § 24.002(b). In turn, the basic requirements for a notice to vacate to
a tenant at sufferance (such as Appellants became after the foreclosure on the subject
property) are as follows: “If the occupant is a tenant at will or by sufferance, the
landlord must give the tenant at least three days’ written notice to vacate before the
landlord files a forcible[-]detainer suit unless the parties have contracted for a shorter
or longer notice period in a written lease or agreement.” See id. § 24.005(b).
Appellants’ argument has as its basis an attack on the affidavits attached to the
Substitute Trustee’s Deed, and they make no challenge to the form or timing of the
notice to vacate.3 Indeed, the evidence establishes that the notices were sent to both
Appellants by a law firm on Appellee’s behalf, and the notices stated,
This firm represents [Appellee] (the “Owner”). Our client owns the
above-referenced Property, which you are occupying. The Property was
sold to the Owner on December 5, 2017, at a Trustee’s Sale (foreclosure)
held on that date. You are now a tenant at sufferance pursuant to the
terms of the Deed of Trust that was foreclosed. This letter constitutes
notice from the Owner that you are required to VACATE THE
PROPERTY and to remove all of your personal belongings within
three (3) days of the date this letter is delivered. If you fail to comply
with this demand[] and do not vacate the Property by the 4th day from
the date this letter is delivered to the Property, we may, at our option,
file suit against you for actual damages, attorney fees[,] and costs of
court. No further notice shall be given.
3
Appellants state their basis for the challenge to the presuit demand as follows:
“[Appellee] should not have been allowed to proceed with its case, and its defective
presuit demand should be deemed to have been made by a person without authority
to make such demands, until good title sufficient to support [Appellee’s] claim is
demonstrated . . . .” [Footnote omitted.]
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Appellants identify no deficiency in the notice, and we see none.4 We overrule
Appellants’ first point.
2. Second Point—Lack of Standing
In their second point, Appellants couch the basis of their claim that Appellee
lacked standing as follows:
[Appellee’s] original petition, and the predicate notice demanding possession, [was]
made on the basis of a substitute trustee’s deed that is not entitled to be treated as
prima facie evidence of a conveyance[, see] TEX. PROP. CODE § 51.002(e),
because such deed (Exhibit 1) not only does not contain affidavits of persons with
knowledge of the relevant facts[] but [also] contains (non)affidavits of persons who
plainly do not have knowledge of the relevant facts as to compliance with TEX.
PROP. CODE § 51.002(d), and thus neither is entitled to the presumption
provided by the referenced statute. Thus, [Appellee] never demonstrated
standing, on the face of the public record or to the trial court, to claim
title to the real property in question or that it had evidence of authority
to make the statutorily required pre-suit demand for possession. Such
failure required abatement or dismissal of the case under the standard
articulated by this Court in A[]Plus Investments v. Rushton, 2004 Tex. App.
4
Appellants also make an indecipherable argument that we construe as a
challenge to the method of service of the affidavit proving up the notices. Relying on
Texas Rule of Civil Procedure 21(a)(1), Appellants contend that the affidavit was
improperly served because Appellee’s counsel physically handed it to Appellants’
counsel rather than serving it electronically. Appellants’ counsel admitted that he had
“received a copy by hand . . . two weeks to the day [of the hearing] or maybe one day
more.” The trial court did not abuse its discretion by admitting evidence that
Appellants’ counsel had admitted that the affidavit was placed in his hand by the other
lawyer, and even if it did so, that error caused no harm. See Mitchell v. Wilmington Sav.
Funds Soc., FSB, No. 02-18-00089-CV, 2019 WL 150262, at *4 (Tex. App.––Fort
Worth Jan. 10, 2019, no pet.) (mem. op.) (“We review a trial court’s evidentiary rulings
for an abuse of discretion.” (citing Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d
338, 347 (Tex. 2015))); Tex. R. App. P. 44.1(a)(1) (setting forth the standard for
reversible error and stating that “[n]o judgment may be reversed on appeal on the
ground that the trial court made an error of law unless the court of appeals concludes
that the error complained of . . . probably caused the rendition of an improper
judgment”).
16
LEXIS 3605 **6–7 (Tex. App.—Fort Worth 2004). [Emphasis added.]
[Footnotes omitted.]
Appellants’ argument is a recasting of the claim that the Substitute Trustee’s
Deed through which Appellee claims title has defective affidavits that makes it
potentially defective. We have explained in detail why such a claim does not create a
title issue so inextricably intertwined with the right to possession that the trial court
lacked jurisdiction to hear the FED suit nor does it demonstrate that Appellee lacked
a superior right to immediate possession. We overrule Appellants’ second point.
3. Third Point—Substitute Trustee’s Deed not entitled to presumption
of validity
In the third rehash of their same complaint, Appellants argue that
[t]he Substitute Trustee’s Deed is not entitled to any presumption of
regularity or validity[] when it is insufficiently supported by defective
affidavits [that] claim insufficient personal knowledge. Since proper
affidavits would mean that the substitute trustee’s deed would be entitled
to be treated as prima facie evidence of compliance, inadequate affidavits
should mean that the deed should not be adequate evidence on which to
base a claim of superior right to possession, just as it would be
insufficient to support validity of the sale in title litigation.
To briefly rehash why this argument fails, the attack on the form of the
affidavits did not prevent Appellee from claiming a superior right to possession and
appears unfounded from a factual standpoint. We overrule Appellants’ third point.
4. Fourth Point—Lack of privity and challenge to Appellee’s right to rely
on Tenancy-at-Sufferance term of Deed of Trust
In their final point, Appellants present a different argument. It appears that
their first argument under their fourth point is that there is no connection between
17
the noteholder listed in the Deed of Trust and the holder identified in the Substitute
Trustee’s Deed. We glean this argument from the statement in their brief—that
“absent proof of connection of the ownership of the lien of the Deed of Trust to the
trustee granting the Substitute Trustee’s Deed (which would require prima facie
evidentiary status for the deed), then [Appellee] had no standing”—in combination
with a footnote dropped in parallel with this statement that “Reporter’s Record
Volume 3, Plaintiff’s Exhibit 2, bottom of first page and top of the second, Everett
Financial, Inc. d/b/a Supreme Lending is identified as the Lender.” The footnote
correctly identifies the lender listed in the Deed of Trust.
The fact that the lender in the Deed of Trust does not match the holder
identified in the Substitute Trustee’s Deed again presents a question of title not
resolvable in an FED action and does not undermine the showing of superior right to
possession accorded Appellee because it was the grantee in the Substitute Trustee’s
Deed. See Deubler v. Bank of NY Mellon, No. 02-10-00125-CV, 2011 WL 1331540, at
*2 (Tex. App.—Fort Worth Apr. 7, 2011, no pet.) (mem. op.) (holding that party was
not required to present evidence establishing connection between deed of trust and
substitute trustee’s deed to establish superior right to possession).
Finally, Appellants argue that Appellee failed to establish that they had refused
to vacate the subject property. That they have filed this appeal is evidence of their
refusal to surrender possession.
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Almost an aside, in the last sentence of their fourth point, Appellants state that
“[Appellee’s] evidence never attempted to establish in any fashion that the real
property in question was still occupied by [Appellants] after demand for possession
(irrespective of the deficiencies of the notice and demand or inadmissibility of
[Appellee’s] Exhibit 3 due to lack of proper service).”
Yet, Appellants describe the background of this appeal as follows:
Appellee Cerberus filed its original petition for forcible[-]detainer in the
Justice Court, Precinct 7, of Tarrant County, Texas. [Appellants] filed
their pleas in abatement and to jurisdiction, and answer subject to such
pleas in the Justice Court, Precinct 7, on September 5, 2018[,] but such
does not appear to be a part of the County Clerk’s record for reasons
unknown to [Appellants]. Such pleas were heard before consideration of
the case in chief by the County Court at Law Number One of Tarrant
County, Texas, where they were heard de novo before the latter court, a
jury not having been demanded by either party. [Footnotes omitted.]
The record in the proceedings below is described as “JP APPEAL – FORCIBLE
DETAINER.”
Though we have not been provided a complete record, it is apparent that the
purpose of the appeal to the county court at law was for Appellants to maintain
possession of the subject property. The simple fact that Appellants appealed a
judgment depriving them of possession is some evidence that they were in possession
of the property at the time of the trial and had refused to vacate it as demanded by
Appellee. See Martin v. Fed. Nat’l Mortg. Ass’n, No. 05-13-00648-CV, 2014 WL
3057389, at *5 (Tex. App.—Dallas July 7, 2014, no pet.) (mem. op.) (“Finally, we note
that [appellants’] appeal of the trial court’s judgment awarding Fannie Mae possession
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of the Property may be some evidence that [appellants] have remained in possession
of the Property.”). We overrule Appellants’ fourth point.
V. Conclusion
Having overruled Appellants’ four points, we affirm the trial court’s judgment.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: November 14, 2019
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