Court of Appeals of Texas, Eighth District, El Paso
from County Court at Law No. 3 of El Paso County, Texas (TC #
McClure, C.J., Rodriguez, and Palafox, JJ.
CRAWFORD McCLURE, Chief Justice
before the Court is Appellee's first amended motion to
dismiss this appeal as moot because the writ of possession
has been executed. Appellant, Alex Hernandez, has filed a
response to the motion. We grant the motion and dismiss the
is appealing a judgment granting possession of the subject
property to U.S. Bank Trust. In an opinion issued on February
17, 2017, we considered Hernandez's motion to reduce the
supersedeas amount and determined that he had not timely
superseded the judgment. See Hernandez v. U.S. Bank
Trust, NA as Trustee for LSF8 Master Participation
Trust, 08-16-00290-CV (Tex.App.--El Paso Feb. 17, 2017,
opinion on motion). On March 13, 2017, U.S. Bank Trust
executed a writ of possession and took possession of the
well settled that issues of title are not adjudicated in a
forcible-detainer suit and the only issue to be decided is
the right to immediate possession of the property.
Marshall v. Housing Authority of the City of San
Antonio, 198 S.W.3d 782, 785 (Tex. 2006); Rice v.
Pinney, 51 S.W.3d 705, 709 (Tex.App.--Dallas 2001, no
pet.). While failure to supersede a forcible-detainer
judgment does not divest an appellant of the right to appeal,
an appeal from a forcible-detainer action becomes moot if the
appellant is no longer in possession of the property, unless
the appellant holds and asserts a potentially meritorious
claim of right to current, actual possession of the property.
Marshall, 198 S.W.3d at 786-87; see Wilhelm v.
Federal National Mortgage Association, 349 S.W.3d 766,
768 (Tex.App.--Houston [14th Dist.] 2011, no pet.).
brief on the merits, Hernandez argues that the trial court
improperly granted summary judgment in U.S. Bank's favor
because a fact issue exists whether he was given 90 days'
notice prior to U.S. Bank filing the forcible detainer action
as required by the Protecting Tenants at Foreclosure Act of
2009. See Protecting Tenants at Foreclosure Act of
2009, Pub.L. No. 111-22, § 702, 123 Stat. 1632, 1661
(codified at 12 U.S.C. § 5220). Hernandez asserted in his
summary judgment response that he began renting the subject
property from the prior owners on an unspecified date in
September 2014 and he pre-paid the rent for the months of
September through December 2014. The subject property was
sold at a non-judicial foreclosure sale on November 4, 2014.
The mortgage includes a provision that following a
foreclosure sale, the mortgagor in the deed of trust and
anyone holding under him or her, shall immediately surrender
possession of the subject property to the purchaser at the
foreclosure sale. If possession is not surrendered, the
mortgagor or any person holding under him shall be a tenant
at sufferance and may be removed by a writ of possession.
U.S. Bank sent notice to vacate to Hernandez on November 3,
2015, but he failed to vacate, and U.S. Bank filed the
forcible detainer action in the Justice Court on December 9,
2015. The Justice of the Peace concluded that Hernandez was
entitled to 90 days' notice. The following day, U.S. Bank
sent a new notice to vacate to Hernandez, and following the
expiration of 90 days, the case proceeded in the Justice
Court and a jury determined that U.S. Bank was entitled to
possession. Hernandez appealed to the County Court at Law and
the court entered summary judgment that U.S. Bank is entitled
to possession of the subject property.
does not dispute that he became a tenant at sufferance under
the mortgage when the property was sold at the foreclosure
sale. The issue raised in his brief regarding the notice to
vacate under the PTFA does not constitute a potentially
meritorious claim of right to current, actual possession of
the property. If we allowed this appeal to continue, our
opinion and judgment could not restore possession of the
subject property to Hernandez because he has not presented
any basis for claiming a right to continuous possession
following the foreclosure sale.
amended response to the motion to dismiss, Hernandez asserts
that his appeal is not moot because U.S. Bank no longer owned
the property at the time the writ of possession was executed,
and therefore, the writ of possession was improperly
executed. Hernandez's argument is misguided. The issue is
whether Hernandez holds and asserts a potentially meritorious
claim of right to possession of the property in his own
right. Because Hernandez has not alleged in his brief or his
response to U.S. Bank's motion to dismiss any facts which
would support a claim of right to current possession of the
property, the appeal is moot. Accordingly, we grant U.S. Bank
Trust's motion and dismiss the appeal as moot. See
Marshall, 198 S.W.3d at 786-87 (appellant did not hold
or assert a potentially meritorious claim of right to
current, actual possession of the apartment because her lease
had expired, and she presented no basis for claiming a right
to possession after the expiration of her lease). Costs of
the appeal are taxed against the party incurring same.
 Pursuant to the PTFA's sunset
provision, the Act expired on December 31, 2014. The
foreclosure occurred in November 2014, but U.S. Bank did not
send notice to vacate until November 3, 2015, eleven ...