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Tillis v. Home Servicing LLC

Court of Appeals of Texas, Second District, Fort Worth

March 2, 2017



          PANEL: GABRIEL and KERR, JJ.; and KERRY P. FITZGERALD (Senior Justice, Retired, Sitting by Assignment).



         In this forcible detainer case, appellant Betty Jo Tillis appeals the trial court's judgment granting possession of certain real property to appellee Home Servicing, LLC (Home Servicing). In two related issues, Tillis contends that the trial court lacked subject matter jurisdiction to grant Home Servicing possession of the property because she presented evidence that the security instrument authorizing foreclosure was forged and because the alleged forgery created an unresolved issue concerning title to the property. We affirm.

         Background Facts

         In February 2016, in a justice court, Home Servicing filed a petition to authorize eviction of Tillis from her Fort Worth property. Home Servicing alleged that the property had been foreclosed upon, that it owned the property through a foreclosure sale deed, that it had notified Tillis to vacate the premises, and that she had refused to do so. Thus, Home Servicing pled that Tillis had committed forcible detainer.[2]

         Home Servicing filed the foreclosure sale deed. That deed recited that Tillis had signed a deed of trust in 2002; that her property had been foreclosed upon after she had received a loan[3] and had defaulted; and that in September 2014, Home Servicing had bought the property at a public auction. Home Servicing also filed a May 2014 foreclosure order from a Tarrant County district court that recited that Tillis had defaulted on a loan obligation. The justice court rendered a judgment for a writ of possession in favor of Home Servicing.

         Tillis appealed the justice court's judgment to the trial court. There, she filed a plea to the jurisdiction. In the plea, she argued, "The deed of trust document upon which [Home Servicing] relies for its title is a forgery of [Tillis's] signature, and it is void and unenforceable. Accordingly, [Home Servicing] does not have valid title or superior right to possession over [Tillis]."[4]

         The trial court held a hearing in April 2016. Tillis's counsel told the trial court that Tillis's purported signature on a deed of trust was a forgery and that the deed of trust was therefore void. Her counsel contended, "[I]f there's a forgery it calls into question title to the real estate that was foreclosed on, [and] title is a dispute that this court does not have jurisdiction over. The court must dismiss the forcible detainer action for lack of jurisdiction . . . ." The trial court asked Tillis's counsel whether a suit concerning the forgery allegation was pending, and counsel stated that a suit was pending in federal court. Counsel represented that there was no final judgment in the federal case; he indicated that a federal bankruptcy court had ruled in Home Servicing's favor but that Tillis had appealed the ruling to a federal district court. Counsel contended that "until [the federal suit was] resolved, " the forcible detainer suit in state court could not proceed. Finally, counsel stated that Tillis was prepared to testify that the deed of trust was forged.

         At the hearing, the trial court admitted copies of the 2002 security instrument, the foreclosure sale deed, the state district court's foreclosure order, and other documents. The security instrument expressed Tillis's obligation to repay debt under a note and stated,

It is the express intention of Lender and [Tillis] that Lender shall have a fully enforceable lien on the Property. It is also the express intention of Lender and [Tillis] that Lender's default remedies shall include the most expeditious means of foreclosure available by law. . . .
If the Property is sold pursuant to this [s]ection . . ., [Tillis] or any person holding possession of the Property . . . shall immediately surrender possession of the Property to the purchaser at that sale. If possession is not surrendered, [Tillis] or such person . . . may be removed by writ of possession or other court proceeding.[5]

         The final page of the security instrument contains a signature that bears Tillis's name.

         After the hearing concluded, the court signed a judgment granting possession of the property to Home Servicing and ordering the issuance of a writ of possession. Tillis ...

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