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Banks v. Bank of America N.A.

Court of Appeals of Texas, Third District, Austin

May 4, 2017

Edward Banks, Appellant
Bank of America, N.A., Appellee


          Before Chief Justice Rose, Justices Goodwin and Bourland.


          Jeff Rose, Chief Justice.

         In this forcible-detainer case, appellant challenges the trial court's final judgment of possession in favor of Bank of America, N.A. In two issues, appellant asserts that the trial court should have dismissed the case because Bank of America's pleadings were not properly verified and that the trial court improperly excluded evidence challenging Bank of America's title to the property. For the reasons discussed below, we will affirm the judgment of the trial court.


         Appellant Edward Banks purchased the subject property on October 4, 2002, at which time he executed a promissory note and deed of trust with lender CH Mortgage Company I, Ltd. The deed of trust provided that upon foreclosure, appellant must surrender the property to the purchaser or he would become a tenant at sufferance who could be removed by writ of possession. Appellant defaulted on payment of the note, and the property was sold to Bank of America in a non-judicial foreclosure sale on September 4, 2012. On April 9, 2015, Bank of America, through its counsel, sent appellant a notice to vacate the property, but appellant did not surrender possession. Bank of America subsequently brought this forcible-detainer action in justice court. The justice court granted Bank of America possession on July 28, 2015, and appellant then appealed to the county court at law. Appellant filed a "First Amended Answer and Motion to Dismiss" challenging the verification of Bank of America's petition and the validity of the foreclosure and asking the trial court to dismiss or abate the proceedings. On December 17, 2015, the county court at law denied appellant's motion to dismiss, held a bench trial on the merits, and awarded possession to Bank of America. This appeal followed.


         Appellant brings two challenges to the trial court's final judgment of possession. First, he asserts Bank of America's pleadings were not properly verified because the accompanying affidavit sworn by Bank of America's counsel contained facts not within the Saucedo's personal knowledge and therefore the trial court erred in denying his motion to dismiss. Second, appellant asserts the trial court improperly excluded evidence that contradicted Bank of America's proof of title. We address each issue in turn.

         Affidavit by Bank of America's Counsel

         In his first issue, appellant contends that the trial court should have granted his motion to dismiss because Bank of America's original petition was not properly verified.[1] Although the petition had an attached affidavit from Israel Saucedo, identified in the affidavit as Bank of America's counsel, swearing that he had personal knowledge of the facts in the petition and that they were "true and correct, " appellant contends Saucedo did not have personal knowledge of the facts. Specifically, he asserts that the mere statement of personal knowledge is insufficient and that the affidavit contains no facts supporting the basis for his personal knowledge that "[appellant] actually lives in the residence." Accordingly, appellant argues, the pleading was not properly verified as required under Texas Rule of Civil Procedure 510.3(a), and the court should have dismissed the case. We disagree.[2]

         We first note that, traditionally, two vehicles have been used to challenge defective pleadings: a special exception, which addresses a pleading defect apparent on the face of the pleading, and a plea in abatement, which addresses a defect in the pleading that requires the introduction of evidence outside of the pleading. In both instances, Texas law states that the trial court must afford the party who filed the defective pleading an opportunity to cure the defect by repleading. See, e.g., County of Cameron v. Brown, 80 S.W.3d 549, 559 (Tex. 2002) (special exception); KSNG Architects, Inc. v. Beasley, 109 S.W.3d 894, 898 (Tex. App.-Dallas 2003, no pet.) (plea in abatement); see also Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 49 (Tex. 2002) (if defective pleading could be cured by amendment, summary judgment is improper without first sustaining special exception because it does not offer opportunity to replead). Accordingly, we will treat appellant's motion as if it were properly designated as a plea in abatement. See Tex. R. Civ. P. 71 ("When a party has mistakenly designated any plea or pleading, the court, if justice so requires, shall treat the plea or pleading as if it had been properly designated.").

         We review the trial court's decision on a plea in abatement for abuse of discretion. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A plea in abatement "cannot be used to determine the merits of an action" but rather asserts facts outside the record that "prevent the suit from going forward until the problem can be cured." Shutter v. Wells Fargo Bank, 318 S.W.3d 467, 470 (Tex. App.-Dallas 2010, pet. dism'd w.o.j.). The defendant must identify an impediment to the suit as well as its cure and ask the court to abate the suit until the impediment is corrected. Id.

         Saucedo's affidavit clearly states his position as counsel and asserts that the facts stated in the petition and the affidavit are "within [his] personal knowledge and are true and correct." There is no qualifying language within the affidavit. See Mekeel v. U.S. Bank Nat'l Ass'n, 355 S.W.3d 349, 355 (Tex. App.-El Paso 2011, no pet.) (upholding verification affidavit as sufficient under Rule 510.3 when there is no qualifying language about personal knowledge). Further, assuming that a mere recitation that an affidavit is based on personal knowledge is insufficient to verify a forcible-detainer pleading, [3] there is information in the pleadings and affidavit from which the trial court could have reasonably concluded that Saucedo had personal knowledge of the facts asserted. Appellant challenges only Saucedo's knowledge that appellant "actually lives" in the property; however nowhere in the petition or affidavit does Bank of America or Saucedo assert that appellant "actually lives" in the property. Rather, the petition states that the property was the only known address for appellant, that appellant was in possession of the property, and that Bank of America, through Saucedo, sent a notice to vacate to appellant via certified mail at the property. Attached to Saucedo's affidavit is the notice to vacate, sent by Saucedo to appellant at the address listed, and the certified-mail return receipt signed by appellant, which was returned to Saucedo's office. Based on this evidence, which was incorporated by reference to Saucedo's affidavit, we cannot conclude that the trial court abused its discretion by determining that Saucedo had personal knowledge that appellant was in possession of the property.[4]

         Additionally, even if we were to hold that the affidavit was deficient, appellant has not argued, and the record does not reflect, that the defective verification or pleading posed any impediment to the trial court's determination of possession or otherwise resulted in harm to appellant. See Fleming v. Fannie Mae, 02-09-00445-CV, 2010 WL 4812983, at *2 (Tex. App.-Fort Worth Nov. 24, ...

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