Lionel Childress, Jeanette Childress and/or All Occupants of 2650 Garden Oaks, Marshall, Texas 75672 v. U.S. Bank Trust, N.A., as Trustee for LSF10 Master Participation Trust

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-23-00024-CV

LIONEL CHILDRESS, JEANETTE CHILDRESS AND/OR
ALL OCCUPANTS OF 2650 GARDEN OAKS, MARSHALL, TEXAS 75672, Appellants

V.

U.S. BANK TRUST, N.A., AS TRUSTEE FOR
LSF10 MASTER PARTICIPATION TRUST, Appellee

On Appeal from the County Court at Law
Harrison County, Texas
Trial Court No. 2023-11476-CCL

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice Rambin
 MEMORANDUM OPINION

U.S. Bank Trust, N.A., as trustee for LSF10 Master Participation Trust (the Bank),

foreclosed on the property located at 2650 Garden Oaks in Marshall, Texas (the Property), after

Lionel Childress and Jeanette Childress defaulted under the terms of a home equity mortgage.

The Bank purchased the Property at the foreclosure sale and sent a notice to vacate to the

Childresses and all other occupants of the Property. After the Childresses failed to vacate the

premises, the Bank filed suit to evict them, and the justice court rendered judgment for the Bank.

The Childresses appealed, and after a trial de novo, the County Court at Law of Harrison County

again rendered judgment for the Bank. In their appeal, the Childresses assert that the justice

court (and, consequently, the trial court) lacked subject-matter jurisdiction to enter its judgment

because of alleged irregularities and deficiencies in the underlying foreclosure. Because we find

that the trial court had subject-matter jurisdiction, we affirm the trial court’s judgment.

I. Background

On September 7, 2007, the Childresses signed a home-equity, first-lien mortgage on the

Property as security for a $519,935.55 promissory note. The mortgage provided that, in the

event of an uncured default, the trustee could

institute proceedings to foreclose the lien of this Mortgage either by judicial
foreclosure or by court order in accordance with the rules of civil procedure for
expedited foreclosure proceedings promulgated from time to time by the Texas
Supreme Court pursuant to the provisions of Article XVI, Section 50(r) of the
Texas Constitution or, to the extent such promulgated rules or a court order
permit, Lender [could] invoke the power of sale. . . .

The mortgage further stated,

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 If Lender invokes the power of sale as may be permitted pursuant to the
above provisions or as may be permitted by court order or the rules promulgated
by the Texas Supreme Court, Lender or Trustee shall give notice of the time,
place and terms of sale by posting and recording the notice at least 21 days prior
to sale as provided by applicable law. Lender shall mail a copy of the notice of
sale to Borrower in the manner prescribed by applicable law. Sale shall be made
at public venue . . . . Borrower authorizes Trustee to sell the Property to the
highest bidder for cash . . . . Lender or its designee may purchase the Property at
any sale.

....

If the Property is sold [under the power of sale], Borrower or any person
holding possession of the Property through Borrower shall immediately surrender
possession of the Property to the purchaser at that sale. If possession is not
surrendered, Borrower or such person shall be a tenant at sufferance and may be
removed by writ of possession.

A. The District Court Foreclosure Suit

The Childresses defaulted under the terms of their note, and, on December 19, 2019, the

71st Judicial District Court of Harrison County entered an “Order to Proceed With Notice of

Foreclosure Sale and Foreclosure Sale,” found that the Bank had “met its burden of proof as to

the elements of Rule 736,1” and authorized the Bank to proceed with the foreclosure of the

1
Under Rule 736.1(d)(6), to obtain an order to proceed to foreclosure, the petitioner must include with its application
an affidavit and

attach a legible copy of:

(A) the note, original recorded lien, . . . and current assignment of the lien, if assigned; [and]

(B) each notice required to be mailed to any person under applicable law and the loan
agreement, contract, or lien sought to be foreclosed before the application was filed and proof of
mailing of each notice.

TEX. R. CIV. P. 736.1(d)(6)(A)–(B).
3
Property “under the terms of the Texas Home Equity Security Instrument and TEX. PROP. CODE

§ 51.002.”2

A substitute trustee’s deed showed that the Bank purchased the Property for

$1,401,250.52 at the foreclosure sale on December 6, 2022. On January 13, 2023, the Bank sent,

by certified mail, the Childresses and all occupants a notice to vacate the Property within three

days. The notice also informed the Childresses that their failure to vacate the Property within

that time would result in eviction proceedings against them.

B. The County Court at Law Forcible Entry and Detainer Suit

After the Childresses failed to vacate the Property, the Bank brought suit in the justice

court, which awarded possession to the Bank. The Childresses appealed that judgment to the

county court at law, which held a trial de novo. At trial, the mortgage, the district court’s order

to proceed to foreclosure sale, the substitute trustee’s deed, and the notice to vacate were

admitted into evidence without objection. The trial court rendered judgment awarding the Bank

possession of the Property, and the Childresses appeal that judgment.

II. The Trial Court Had Subject-Matter Jurisdiction to Enter the Judgment

In the argument section of their pro se brief, the Childresses purport to assert three issues.

In their first stated issue, they attack the subject-matter jurisdiction of the justice court. Under

that portion of their argument, the Childresses recite what law they believe was applicable to this

issue, which generally points to their contention that the justice court could not adjudicate the

issue of possession because it involved a determination of title. However, they provide no

2
See TEX. PROP. CODE ANN. § 51.002 (setting forth the requirements for the “Sale of Real Property Under Contract
Lien”).
4
analysis of how that law applies to the facts of this case in that portion of their argument. In the

second portion of their argument, which they purport to be a second issue, the Childresses allege

(1) that the Bank was obligated to conduct a financial review, (2) that they did not receive a letter

to cure before the foreclosure, and (3) that they have a cause of action against the mortgage

servicer. The Childresses do not provide any citations to the record in support of these

allegations. In the third portion of their argument, which they purport to be a third issue, the

Childresses allege that there was insufficient proof of the Bank’s title to the mortgage, so, they

allege, there was a material fact issue as to the Bank’s authority to foreclose the Property. Again,

the Childresses provide no citations to the record in support of these allegations. We interpret

the brief to challenge the subject-matter jurisdiction of the justice court, with the second and

third portions of the argument providing their attempt to apply the facts to their contention that

the issue of possession was dependent on a determination of title.3

“A justice court has original jurisdiction over suits in forcible detainer but specifically

does not have jurisdiction over suits requiring a determination of title to land.” Herrera v. Bank

of Am., No. 06-15-00081-CV, 2016 WL 3655055, at *2 (Tex. App.—Texarkana July 7, 2016, no

pet.) (mem. op.) (citing TEX. GOV’T CODE ANN. § 27.031(a)(2), (b)(4)). “[I]n an appeal from the

justice court, the jurisdiction of a county court at law ‘is confined to the jurisdictional limits of

the justice court, and the county court has no jurisdiction over an appeal unless the justice court

3
In the “Issues Presented” section of their brief, the Childresses also assert an issue regarding the amount of the
supersedeas bond. However, they do not provide any argument in support of that issue. The Texas Rules of
Appellate Procedure require a brief to “contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i). “[A] point of error not adequately
supported by either argument or authorities is waived.” In re A.B., 646 S.W.3d 83, 96 (Tex. App.—Texarkana 2022,
pet. denied) (quoting In re N.L.G., No. 06-06-00066-CV, 2006 WL 3626956, at *2 (Tex. App.—Texarkana Dec. 14,
2006, pet. denied) (mem. op.)).
5
had jurisdiction.’” Id. (quoting Rice v. Pinney, 51 S.W.3d 705, 708 (Tex. App.—Dallas 2001, no

pet.)). As a result, the Childresses’ challenge to the jurisdiction of the justice court also

challenges the jurisdiction of the trial court in this case.

“A forcible detainer action ‘determine[s] the right to immediate possession of real

property where there is no unlawful entry.’” Id. (quoting Reardean v. Fed. Home Loan Mortg.

Corp., No. 03-12-00562-CV, 2013 WL 4487523, at *1 (Tex. App.—Austin Aug. 14, 2013, no

pet.) (mem. op.)). “It ‘is designed to be a quick, simple, and inexpensive means to determine

who is entitled to immediate possession to property without resorting to an action on the title.’”

Id. (quoting Wade v. Household Fin. Corp. III, No. 06-15-00074-CV, 2016 WL 741872, at *3

(Tex. App.—Texarkana Feb. 25, 2016, no pet.) (mem. op.)). Nevertheless, “if the justice court

or county court must necessarily resolve questions of title in order to determine the right to

immediate possession, it has no jurisdiction to adjudicate the forcible detainer action.” Id. (citing

Reardean, 2013 WL 4487523, at *2).

As we understand their brief, the Childresses assert that, because of the alleged

irregularities and insufficient proof in the foreclosure proceeding, the question of whether the

Bank had a superior right to immediate possession of the Property could not be resolved without

first resolving whether the Bank had title to the Property. “Generally, irregularities in the

foreclosure process or deficiencies in the purchaser’s title ‘may not be considered in a forcible

detainer action.’” Id. at *3 (quoting Schlichting v. Lehman Bros. Bank FSB, 346 S.W.3d 196,

199 (Tex. App.—Dallas 2011, pet. dism’d)). “Such irregularities and deficiencies ‘must be

pursued, if at all, in a separate suit for wrongful foreclosure or to set aside the substitute trustee’s

6
deed.’” Id. (quoting Schlichting, 346 S.W.3d at 199). “Such suits may be pursued in the district

court concurrently with the forcible detainer action in justice court ‘to resolve issues of title and

immediate possession, respectively.’” Id. (quoting Rice, 51 S.W.3d at 710). Further, “any issues

involving title to the [P]roperty can be resolved in a [separate] quiet title action between those

parties claiming a title interest.” Harrell v. Citizens Bank & Tr. Co. of Vivian, La., 296 S.W.3d

321, 327 (Tex. App.—Texarkana 2009, pet. dism’d w.o.j.). This is “because a forcible detainer

action is not exclusive, but cumulative, of any other remedy that a party may have in the courts

of this State.” Id. at 326 (citing Scott v. Hewitt, 90 S.W.2d 816, 818–19 (Tex. 1936)); see Rice v.

Pinney, 51 S.W.3d 705, 710 (Tex. App.—Dallas 2001, no pet.) (“[The] Legislature contemplated

concurrent actions in district and justice courts to resolve issues of title and immediate

possession, respectively.”). Consequently, “it is only when the justice court or county court must

determine title issues that it is without jurisdiction to adjudicate a forcible detainer case.” Rice,

51 S.W.3d at 713.

But, “[w]here 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.”

Herrera, 2016 WL 3655055, at *3 (alteration in original) (footnote omitted) (quoting Reardean,

2013 WL 4487523, at *3); see Tehuti v. Bank of New York Mellon Tr. Co., Nat’l Ass’n, 517

S.W.3d 270, 274 (Tex. App.—Texarkana 2017, no pet.) (quoting Mosely v. Am. Homes 4 Rent

Props. Eight, LLC, No. 02-15-00200-CV, 2015 WL 9942695, at *3 (Tex. App.—Fort Worth

Dec. 10, 2015, pet. dism’d) (mem. op.)). In this case, the mortgage provided that, if the Property

7
were sold under its power of sale and the Borrowers, i.e., the Childresses, did not immediately

surrender possession of the Property, they became tenants at sufferance. The substitute trustee’s

deed established that the Bank purchased the Property under the power of sale. As a result, after

the Childresses did not vacate the Property as directed under the notice to vacate, the Bank and

the Childresses were in a landlord and tenant-at-sufferance relationship.

Consequently, the trial court could determine the issue of immediate possession on that

basis and was not required to resolve any issue of title to the property. Herrera, 2016 WL

3655055, at *4; Tehuti, 517 S.W.3d at 274; Harrell, 296 S.W.3d at 327. We find that the trial

court had subject-matter jurisdiction to hear the forcible detainer action and issue its judgment,

and we overrule the Childresses’ sole issue.4

III. Disposition

Because the trial court had jurisdiction to adjudicate the forcible detainer action, we

affirm the trial court’s judgment.5

Jeff Rambin
Justice

Date Submitted: August 22, 2023
Date Decided: August 25, 2023

4
To the extent that the Childresses’ brief can be construed as asserting error because the trial court entered its
judgment without resolving issues concerning wrongful foreclosure and the Bank’s title, we note that there is no
evidence concerning those issues in the appellate record. “Because the issues of title and wrongful foreclosure were
not before the county court at law in this forcible detainer action, we cannot address” these arguments. Tehuti, 517
S.W.3d at 274.
5
The Bank’s motion to dismiss this appeal is denied as moot.
8