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Taylor v. Wells Fargo Bank, National Association

Court of Appeals of Texas, Fifth District, Dallas

April 6, 2017

SHEILA TAYLOR, Appellant [1]
v.
WELLS FARGO BANK, NATIONAL ASSOCIATION AS TRUSTEE FOROPTION ONE MORTGAGE LOAN TRUST 2006-3, ASSET-BACKED CERTIFICATES, SERIES 2006-3, Appellee

         On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-16-00369-E

          Before Justices Lang, Fillmore, and Schenck

          MEMORANDUM OPINION

          ROBERT M. FILLMORE JUSTICE

         Sheila Taylor appeals from a forcible detainer judgment awarding Wells Fargo Bank, National Association as Trustee for Option One Mortgage Loan Trust 2006-3, Asset-Backed Certificates, Series 2006-3 (Well Fargo) possession of certain real property. In three issues, Taylor asserts the trial court erred by awarding possession of the property to Wells Fargo because the entity servicing the mortgage failed to accept payment from her and, after she contacted that entity, failed to correct its error; she did not receive a legal notice of the foreclosure sale; and the property was put on a "website" for sale without notice, but was "taken off" after she filed "court papers." We affirm the county court at law's judgment.

         Background

         Taylor owned property located at 823 Shady Brook Lane, Cedar Hill, Texas. Wells Fargo acquired the property at a foreclosure sale on January 6, 2015, and on December 11, 2015, sent notice by certified mail, return receipt requested and by regular mail to Taylor and all other occupants of the property to vacate the property. The notice informed Taylor that, if the property was not vacated within three days, Wells Fargo would file suit to enforce its rights. When Taylor failed to vacate the property, Wells Fargo filed a forcible detainer suit. On January 14, 2016, the justice of the peace court signed a judgment awarding possession of the property to Wells Fargo. Taylor appealed to the county court at law. Following a bench trial on February 4, 2016, the county court at law signed a judgment awarding possession of the property to Wells Fargo.

         Taylor filed this appeal from the judgment of the county court at law. In response to an inquiry from our clerk, we received notice from the court reporter on April 17, 2016, that "no written requests or payment arrangements [had] been made by either party for production of the Reporter's Record." On April 18, 2016, we instructed Taylor to provide (1) notice that she had requested preparation of the reporter's record, and (2) written verification she had paid or made arrangements to pay for the reporter's record or written documentation that she had been found entitled to proceed without payment of costs. We specifically cautioned Taylor that failure to comply by April 28, 2016, could result in the case being submitted without the reporter's record. Because the reporter's record had not been filed and Taylor failed to provide the required documentation or otherwise correspond with this Court regarding the status of the reporter's record, on May 17, 2016, we ordered the appeal submitted without the reporter's record.

         Analysis

         "A suit for eviction or forcible detainer is a procedure to determine the right to immediate possession of real property where there was no unlawful entry." Byars v. Dilworth, No. 05-14-01405-CV, 2016 WL 235276, at *1 (Tex. App.-Dallas Jan. 20, 2016, no pet.) (mem. op.); see also Tex. Prop. Code Ann. § 24.002(a) (West 2014); Tex.R.Civ.P. 510.1.[2] It is intended to be a speedy, simple, and inexpensive means to obtain possession of property without resort to an action upon title. Scott v. Hewitt, 90 S.W.2d 816, 818-19 (Tex. 1936); Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.-Dallas 2001, no pet.). The only issue in a forcible detainer action is the right to actual and immediate possession of the property. Tex.R.Civ.P. 510.3(e); Byars, 2016 WL 235276, at *1. As relevant to this case, to prevail and obtain possession in a forcible detainer action, a plaintiff must show: (1) the property was conveyed to the plaintiff after a foreclosure sale; (2) the deed of trust signed by the defendant established a landlord-tenant relationship between the plaintiff and the defendant; (3) the plaintiff gave proper notice to the defendant to vacate the premises; and (4) the defendant refused to vacate. U.S. Bank Nat'l Assoc. v. Freeney, 266 S.W.3d 623, 625 (Tex. App.-Dallas 2008, no pet.); see also Tex. Prop. Code Ann. §§ 24.002(a)(2), (b); 24.005(b) (West 2014 & Supp. 2016).

         It is the appellant's burden to bring forward a sufficient record to show error by the trial court. Englander Co., Inc. v. Kennedy, 428 S.W.2d 806, 807 (Tex. 1968) (per curiam); Chevalier v. Roberson, No. 01-15-00225-CV, 2016 WL 1590993, at *4 (Tex. App.-Houston [1st Dist.] Apr. 19, 2016, no pet.); see also Tex. R. App. P. 35.3(b). When there is no reporter's record and findings of fact and conclusions of law are neither requested nor filed, the judgment of the trial court implies all necessary findings of fact to support its judgment. Lyons v. Polymathic Props., Inc., No. 05-15-00408-CV, 2016 WL 3564210, at *2 (Tex. App.-Dallas June 29, 2016, no pet.) (mem. op.). "In other words, we must presume the missing reporter's record supports the decisions of the trial court." Id.; see also Bryant v. United Shortline Inc. Assurance Servs., N.A., 972 S.W.2d 26, 31 (Tex. 1998). Including documents in a brief does not change this fact, because we cannot consider documents that are not part of the appellate record. Lyons, 2016 WL 3564210, at *2. Similarly, we cannot accept as true any statement of the evidence in a brief that is unsupported by the record. In re P.M.K., No. 05-15-01181-CV, 2017 WL 462343, at *4 (Tex. App.-Dallas Jan. 30, 2017, no pet. h.) (mem. op.).

         Taylor contends the trial court erred by awarding possession of the property to Wells Fargo because the entity servicing the mortgage failed to accept payment from her and, after she contacted that entity, failed to correct its error; she did not receive a legal notice of the foreclosure sale; and the property was put on a "website" for sale without notice, but was "taken off" after she filed "court papers."[3] Assuming these complaints could properly be raised in a forcible detainer action, an analysis of each of the complaints is dependent upon evidence presented at trial. The absence of a reporter's record requires us to presume the evidence presented supports the judgment. Lyons, 2016 WL 3564210, at *2; see also Bryant, 972 S.W.2d at 31. Accordingly, we must presume Wells Fargo presented sufficient evidence to establish its right to immediate possession of the property as required to prevail in this action. See Singh v. Fed. Nat'l Mortg. Ass'n, No. 03-14-00354-CV, 2014 WL 6893696, at *2 (Tex. App.-Austin Dec. 5, 2014, no pet.) (mem. op.). We resolve Taylor's three issues against her and affirm the trial court's judgment.

         JUDGMENT

         In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.

         It is ORDERED that appellee Wells Fargo Bank, National Association as Trustee for Option One Mortgage Loan Trust 2006-3, Asset-Backed Certificates, Series 2006-3 recover ...


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