Court of Appeals of Texas, Fourth District, San Antonio
the 198th Judicial District Court, Kerr County, Texas Trial
Court No. 17902C Honorable Susan Harris, Judge Presiding
Sitting: Rebeca C. Martinez, Justice, Irene Rios, Justice
Beth Watkins, Justice
C. Martinez, Justice
Susan Rebecca Cammack appeals the trial court's final
judgment granting possession of Cammack's foreclosed home
to appellee The Bank of New York Mellon f/k/a The Bank of New
York as Trustee for the Certificateholders of CWABS 2004-05
filed suit to quiet title after Mellon prevailed in a
foreclosure action of property owned by Cammack. See
Cammack v. The Bank of N.Y. Mellon, No. 04-18-00277-CV,
2019 WL 1547576 (Tex. App-San Antonio Apr. 10, 2019, no pet.
h.) (mem. op.). Mellon also prevailed in the suit to quiet
title and subsequently gave Cammack notice to vacate.
Following Cammack's refusal to vacate, Mellon filed a
petition for forcible detainer in the Kerr County Justice of
the Peace Court. Id. When the justice court ruled in
favor of Mellon, Cammack appealed to the Kerr County Court at
Law (the "trial court"). The trial court held a
trial on March 28, 2018 where Mellon presented evidence
showing: (1) it purchased the property at the foreclosure
sale; (2) Cammack became a tenant at sufferance according to
the terms of the deed of trust; (3) Mellon gave Cammack
notice to vacate; and (4) Cammack refused to vacate. The
trial court granted judgment in favor of Mellon and ordered
the clerk to issue a writ of possession, which was issued on
April 18, 2018. Cammack appeals the trial court's order
granting Mellon possession of the property.
first two issues, Cammack attempts to argue that the trial
judge should have recused herself because the trial judge did
not have sufficient knowledge of the law to grant her
equitable relief. It is not clear what error Cammack claims
the trial court committed based on the trial court's
alleged insufficient knowledge of the "law of
equities." Cammack does not cite any legal authority and
only cites an alleged ex parte communication outside of the
record to support her argument.
recognize Cammack is not an attorney and is representing
herself on appeal. However, pro se litigants are generally
held to the same standards as licensed attorneys and must
comply with all applicable rules, including the rules
governing appellate briefs. Olivarri v. Olivarri,
No. 04-17-00477-CV, 2018 WL 2418467, at *2 (Tex. App.-San
Antonio May 30, 2018, no pet.) (citing Wheeler v.
Green, 157 S.W.3d 439, 444 (Tex. 2005) (per curiam)). An
appellant's "brief must contain clear and concise
argument for the contentions made, with appropriate citations
to authorities and to the record." See Tex. R.
App. P. 38.1(i). An appellant waives any issues that are not
adequately briefed because nothing is presented for our
review when the appellant fails to cite relevant authority,
provide relevant citations to the record, or provide
substantive analysis of the issue raised in the brief.
Olivarri, 2018 WL 2418467, at *2.
Cammack fails to cite any authority supporting her first two
issues and her reference to ex parte communication with the
trial court is outside the appellate record. See
id.; see also Edwards v. Dist. Attorney of Atascosa
Cty., 511 S.W.3d 257, 260 (Tex. App.-San Antonio 2015,
no pet.) (recognizing appellate court may not consider
evidence that is not part of the appellate record). In
addition, Cammack failed to preserve error on the recusal
issue because she never filed a motion to recuse the trial
judge. See Humble Expl. Co. v. Browning, 677 S.W.2d
111, 114 (Tex. App.-Dallas 1984), order reinstated,
690 S.W.2d 321 (Tex. App.-Dallas 1985, writ ref'd n.r.e)
(citing Buckholts Indep. Sch. Dist. v.
Glaser, 632 S.W.2d 146, 148 (Tex. 1982) ("Under
Texas law the disqualification of the judge on a ground other
than those specified in the constitution is waived if not
raised by a proper motion to recuse."). Therefore,
Cammack has waived her first two issues.
issues three and four, Cammack makes the same arguments that
she made on appeal before this court in Cammack v. The
Bank of New York Mellon, No. 04-19-00277-CV, 2019 WL
1547576, at *2-3 (Tex. App.-San Antonio Apr. 10, 2019, no
pet. h.) (mem. op.). Cammack argues Mellon lacked standing to
seek foreclosure on the property because: (1) Mellon is a
"mere trustee of a mortgage pool in the secondary
mortgage market," (2) Mellon is "specifically
prohibited by its own controlling document, The Pooling
Service Agreement (PSA), from foreclosing against [a]
mortgage loan 'Borrower'" like Cammack, and (3)
Mellon "is not the Holder in Due Course" of the
alleged mortgage note. We noted in our previous opinion that
"[t]he essence of Cammack's argument is that because
Mellon lacked standing to foreclose, the trial court . . .
lacked subject-matter jurisdiction to render the Foreclosure
Judgment." Id. We determined Cammack was making
a collateral attack on the Foreclosure Judgment and overruled
these issues. Id. Accordingly, we overrule issues
three and four for the reasons stated in our previous
opinion. See id. (holding Cammack's collateral
attack was without merit because the Foreclosure Judgment
contained a recitation of jurisdiction).
the only issue in a forcible detainer suit is the right to
actual possession, not the right to title. Tex.R.Civ.P.
510.3(e). Cammack attempts to improperly adjudicate title
through the appeal of an eviction proceeding. "Any
defects [Cammack claims] in the foreclosure process or with
[Mellon's] title to the property may not be considered in
a forcible detainer action." Shutter v. Wells Fargo
Bank, N.A., 318 S.W.3d 467, 471 (Tex. App.-Dallas 2010,
pet. dism'd w.o.j.); see also Harris v. Bank of Am.,
N.A., No. 04-15-00371-CV, 2015 WL 6876745, at *1 (Tex.
App.-San Antonio Nov. 10, 2015, no pet.) (mem. op., not
designated for publication) ("Title disputes like the
validity of a foreclosure sale may not be determined in a
forcible detainer action and must be brought in a separate
suit."). "Those defects may be pursued in suits for
wrongful foreclosure or to set aside the substitute
trustee's deed, but they ...