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Cook v. Mufaddal Real Estate Fund

Court of Appeals of Texas, Fourteenth District

April 4, 2017

ISSAC COOK AND NAKIA COOK, Appellants
v.
MUFADDAL REAL ESTATE FUND, Appellee

         On Appeal from County Civil Court at Law No. 1 Harris County, Texas Trial Court Cause No. 1064435

          Panel consists of Justices Busby, Donovan, and Wise.

          MEMORANDUM OPINION

          John Donovan Justice.

         In this forcible detainer case, appellants Issac Cook and Nakia Cook appeal a judgment that granted possession of their property to a foreclosure-sale purchaser, appellee Mufaddal Real Estate Fund. Appellants present three issues on appeal. First, they contend that the county court at law erred in denying their motion to abate and plea to the jurisdiction. Next, appellants contend the county court at law erred in refusing to consider appellants' Rule 12 motion to show authority. Last, appellants contend the county court at law lacked sufficient evidence that there was an actual foreclosure on their home. For the reasons set forth below, we affirm.

         I. Background[1]

         In 2007, appellant Nakia Cook purchased a home located in Houston, Harris County. Appellant obtained a thirty-year loan from Lehman Brothers Bank that was secured by a promissory note and deed of trust.[2] The deed of trust recited that:

If the Property is sold pursuant to this Section 22, [3] 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 or other court proceeding.

         On or around 2011, the deed of trust was assigned to Aurora Bank. In 2012, Aurora Bank assigned the deed of trust to Nationstar Mortgage.

         In 2009, appellants defaulted on their mortgage. In 2010, appellants maintain they filed suit in Harris County district court against Aurora Bank for fraud. Appellants assert that in 2015 they sought a temporary restraining order in district court trying to stop foreclosure on the property, which was denied. According to appellants, Nationstar Mortgage filed an answer, counterclaim, and third-party claim seeking judicial foreclosure and writ of possession on the property. Appellants argue that Nationstar Mortgage's counterclaim indicates that title to the property belongs to Nationstar Mortgage and not appellee.

         Nationstar Mortgage foreclosed on appellants' property. In April 2015, appellee bought the property from a substitute trustee at a nonjudicial foreclosure sale and recorded a substitute trustee's deed. On May 6, 2015, appellee sent notice to appellants to vacate the property, but appellants did not do so. Appellee filed a forcible detainer suit against appellants in the justice court of Harris County, Precinct 7, Place 1, on May 11, 2015. Appellants also filed a motion to abate and plea to the jurisdiction as well as a Rule 12 motion to show authority.

         On June 11, 2015, the justice court determined that appellants had committed a forcible detainer and granted appellee immediate possession of the property. The record does not reflect that the justice court ruled on appellants' motion to abate and plea to the jurisdiction or Rule 12 motion to show authority. Appellants then appealed the judgment to Harris County Civil Court at Law No. 1, seeking a trial de novo.

         In the county court at law, on July 24, 2015, prior to trial, appellants again presented their motion to abate and plea to the jurisdiction. Appellants argued that the county court at law lacked jurisdiction because of the pending title dispute between appellants and Nationstar Mortgage, and therefore the county court at law should dismiss or, in the alternative, abate the forcible detainer proceedings until the district court resolved the issues of title to the property. After a hearing, the county court at law denied appellants' plea to the jurisdiction and plea in abatement and tried the case on the merits.

         At the bench trial, as proof that appellants had committed a forcible detainer and appellee was therefore entitled to the property, appellee presented as evidence: (1) the original deed of trust containing a tenancy at sufferance clause;[4] (2) the substitute trustee's deed to appellee; and (3) proof of its demand to appellants to vacate the property. The evidence was admitted without objection. The county court signed a judgment awarding possession to appellee on July 24, 2015. Appellants timely filed a notice of appeal.

         II. Analysis

         A. The county court at law had subject-matter jurisdiction over the forcible detainer suit.

         In their first issue, appellants contend that the county court erred in denying their plea to the jurisdiction. Appellants argue that the county court lacked jurisdiction and should have transferred the case ...


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