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Compass Bank v. Johnson

Court of Appeals of Texas, Fifth District, Dallas

April 30, 2018

COMPASS BANK, AN ALABAMA BANKING CORPORATION, AUTHORIZED TO DO BUSINESS AS BBVA COMPASS, Appellant
v.
RECILLIA JOHNSON AND ALL OTHER OCCUPANTS, Appellee

          On Appeal from the County Court at Law No. 1 Dallas County, Texas Trial Court Cause No. CC-17-01501-A

          Before Justices Francis, Brown, and Stoddart

          MEMORANDUM OPINION

          ADA BROWN JUSTICE

         Appellant Compass Bank purchased the property at 3420 Detonte Street, Dallas, Texas 75223 at a foreclosure sale and thereafter filed this forcible detainer action against appellee Recillia Johnson and all other occupants (Johnson) of the property. In a single issue, Compass Bank maintains the trial court erred in awarding Johnson possession of the premises.

         BACKGROUND

         In 2006, Johnson borrowed money secured by a deed of trust on the Detonte Street property. The deed of trust provides that, if the property is sold at a foreclosure sale,

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.

         In January 2017, Compass Bank bought the property at a foreclosure sale, and a substitute trustee's deed reflecting the sale was executed. Counsel for Compass Bank sent a letter to Johnson demanding that she vacate the property within three days. When Johnson failed to vacate, Compass Bank filed this action against her in justice court, seeking possession of the property. Johnson did not file an answer, and the justice court entered judgment that Compass Bank recover the property from Johnson. Johnson appealed that judgment to the county court for a trial de novo.

         At trial, Compass Bank again requested that it be awarded possession of the property and offered into evidence without objection the deed of trust, the substitute trustee's deed showing Compass Bank bought the property at the foreclosure sale, and the notice to vacate Compass Bank sent to Johnson. Johnson testified to receiving the notice. She further testified that she still resided at the property.

         The county court judge then asked Compass Bank's counsel for the designation of substitute trustee. Counsel did not have a hard copy with him, and the judge announced she was going to find in favor of Johnson in the absence of evidence the substitute trustee was authorized to sell the property. The judge, however, stated that Compass Bank could submit documentation showing the substitute trustee's designation if Compass Bank wanted her to reconsider. Counsel clarified with the judge that she wanted the documentation in the form of a motion to reconsider.

         Compass Bank then filed a motion to reconsider, attaching a certified copy of the Removal of Trustee and Appointment of Substitute Trustee, as well as a certified copy of the Notice of Trustee Sale signed by the substitute trustee. Compass Bank sent a copy of the motion with its attachments to Johnson, and she acknowledged receiving them. During a hearing on the motion to reconsider, Compass Bank presented the certified copy of the Removal of Trustee and Appointment of Substitute Trustee to the judge. She advised that she would take the motion under advisement.

         A few days later, the judge entered judgment that Johnson have possession of the property. Compass Bank requested findings of fact and conclusions of law. The judge entered findings of fact and conclusions of law, including that Compass Bank produced a copy of the deed of trust, a substitute trustee's deed and a demand to vacate the premises at trial. She further found that the trial court heard Compass Bank's motion to reconsider, to which it had attached the designation of substitute trustee. However, the judge found that Compass Bank "did not offer into evidence the Designation of Substitute Trustee nor did [it] request that the Court take Judicial Notice of the contents of its file."

         APPLICABLE LAW

         A party challenging the legal sufficiency of an adverse finding on an issue on which it had the burden of proof must demonstrate the evidence conclusively established, as a matter of law, all vital facts in support of the issue. U.S. Bank Nat'l Ass'n v. Freeney, 266 S.W.3d 623, 625 (Tex. App.-Dallas 2008, no pet.) (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001)). In reviewing the challenge, we must examine the record for evidence supporting the adverse finding, while ignoring all evidence to the contrary. Id. We indulge every reasonable inference to support the finding, crediting favorable evidence if a reasonable jury could and disregarding contrary evidence unless a reasonable jury could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). If there is no evidence to support the adverse finding, we then ...


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