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Feuerbacher v. Federal National Mortgage Association

Court of Appeals of Texas, Fifth District, Dallas

November 21, 2017

JOHN W. FEUERBACHER, Appellant
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION A/K/A FANNIE MAE, Appellee

         On Appeal from the County Court at Law No. 2 Kaufman County, Texas Trial Court Cause No. 16C-0010-2

          Before Justices Francis, Myers, and Whitehill

          MEMORANDUM OPINION

          LANA MYERS JUSTICE

         This is an appeal from a final judgment in an action for forcible entry and detainer, in which the trial court awarded possession of a property located at 12369 Golden Meadow Lane, Forney, Texas 75126, to the appellee Federal National Mortgage Association a/k/a Fannie Mae. John W. Feuerbacher, appeals, contending (1) the trial court erred by hearing the case and rendering judgment because the court did not have all indispensable parties before it; and (2) appellee failed to tender evidence that it was entitled to rely on the "tenancy at sufferance" language in the deed of trust, and it was not in privity of contract regarding the claimed lien instrument. We affirm.

         Background and Procedural History

         On November 3, 2015 appellee Fannie Mae purchased a property located at 12369 Golden Meadow Lane, Forney, Texas 75126, at a foreclosure sale after appellant John W. Feuerbacher defaulted on his mortgage. The deed of trust executed by appellant and his wife, Sandra Feuerbacher, pursuant to which the foreclosure sale occurred, provided that if the property is sold via a non-judicial foreclosure:

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 November 19, 2015, separate notices to vacate were mailed to appellant, his wife, and the "occupant(s) and/or tenant(s)" of the property demanding they vacate the property within three days or forcible detainer proceedings would be commenced against them and all other occupants.

         When appellant failed to vacate the property, Fannie Mae filed this forcible entry and detainer action in the Justice Court, Precinct 1, of Kaufman County, Texas, and obtained a judgment in its favor. Appellant appealed the judgment to the County Court at Law No. 2 of Kaufman County, Texas. Fannie Mae moved for summary judgment and appellant filed a response to the summary judgment motion. The county court denied the motion for summary judgment and proceeded to trial on July 29, 2016.

         During the trial, the county court admitted into evidence the substitute trustee's deed showing Fannie Mae's purchase of the property at the foreclosure sale, and the deed of trust showing appellant's tenant at sufferance status. The county court also admitted into evidence the notices to vacate that were mailed to appellant, his wife, and the occupants and/or tenants of the property. Appellant offered no evidence in opposition to the deed of trust, substitute trustee's deed, and the notices to vacate offered by Fannie Mae. Nor did appellant introduce any evidence showing Sandra Feuerbacher or any other occupant other than appellant remained in possession of the property after receiving written notice to vacate. The county court granted judgment in favor of Fannie Mae and awarded immediate possession of the property to Fannie Mae.

         Discussion

         1. Indispensable Party

         In his first issue, appellant contends the trial court erred by hearing the case and rendering judgment because the court did not have before it all indispensable parties. Appellant explains his argument as follows:

Fannie Mae very plainly, by its own documentary evidence and business records affidavit, properly should have included a second party defendant, Sandra Feuerbacher, who was not and is not a party to this suit. Since all necessary parties defendant were not named in the suit nor served with process, the suit should have been abated and/or dismissed, since the Judgment of July 29, 2016 was not [sic] be a bar to a later suit against Sandra Feuerbacher by Fannie Mae or anyone who might claim to be a successor in ...

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