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Brigandi v. American Mortgage Investment Partners Fund I Trust

Court of Appeals of Texas, Second District, Fort Worth

April 20, 2017

TAWNYA BRIGANDI APPELLANT
v.
AMERICAN MORTGAGE INVESTMENT PARTNERS FUND I TRUST APPELLEE

         FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY TRIAL COURT NO. CV-2016-01542

          PANEL: GABRIEL, J.; LIVINGSTON, C.J.; and SUDDERTH, J.

          MEMORANDUM OPINION [1]

          PER CURIAM

         Appellant Tawnya Brigandi appeals from the county court's order dismissing her appeal of the justice court's judgment of eviction. Because Brigandi is no longer in possession of the property at issue and because her allegations do not raise a potentially meritorious claim that she is entitled to current, actual possession of the home, her appeal is moot and we dismiss it as such.

         I. BACKGROUND

         A. The Property

         On June 11, 2003, Brigandi, along with her husband Nicholas Brigandi (collectively, the Brigandis), executed a note for $142, 607 that was secured by a deed of trust to their home in Little Elm, Texas ("the property"), in favor of First Independent National Bank. The deed of trust provided that if the property was sold at a foreclosure sale, the Brigandis agreed to surrender possession of the home:

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

         After several transfers and assignments, appellee American Mortgage Investment Partners Fund I Trust became the owner and holder of the note and deed of trust.

         B. Default and Foreclosure

         The Brigandis defaulted on their payment obligations, and American Mortgage gave them written notice of the defaults and an opportunity to cure, which they failed to do. On April 5, 2016, the property was sold at a foreclosure sale to American Mortgage as the highest bidder.[2] Because the Brigandis did not immediately surrender possession of the property after the sale, they became tenants at sufferance under the terms of the deed of trust. See Tex. Prop. Code Ann. § 24.002(a)(2) (West 2014). On April 14, 2016, American Mortgage served the Brigandis with a notice to vacate and demand for possession. See id. § 24.004(a) (West 2014), § 24.005(b) (West Supp. 2016). The Brigandis again failed to vacate the property.

         C. Eviction Petition in Justice Court

         On May 2, 2016, American Mortgage filed an eviction petition in the justice court, seeking possession of the property and the Brigandis' removal. See Tex. R. Civ. P. 510.3. On May 17, 2016, Brigandi filed a petition in the Denton County probate court, seeking damages based on American Mortgage's prior collection efforts and to set aside the foreclosure sale and the substitute trustee's deed.[3]See Knoles v. Wells Fargo Bank, N.A., 513 F.App'x 414, 416 (5th Cir. 2013) (recognizing difference between appeal of forcible-detainer suit and appeal of separate action for "infirmities in the note, the deed of trust, and the process leading to foreclosure"). Brigandi then sought to dismiss American Mortgage's eviction petition based on her challenge to the validity of the foreclosure and subsequent substitute trustee's deed. She also asserted that the justice court did not have jurisdiction to adjudicate title or ownership based on her probate-court petition. On June 15, 2016, the justice court signed a judgment of eviction, awarding American Mortgage possession of the property, setting an appellate bond at $1, 500, and stating that American Mortgage was "entitled to such writs and abstracts as are necessary to effect execution of this judgment." See Tex. R. Civ. P. 510.8(b), 510.9(b). The justice court did not award court costs, attorneys' fees, or back rent in the judgment.

         D. Appeal De ...


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