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Draper v. AJ & SAL Enterprises, LLC

Court of Appeals of Texas, Fifth District, Dallas

May 14, 2019

AUDRA DRAPER, Appellant
v.
AJ & SAL ENTERPRISES, LLC, Appellee

          On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-17-06758-E

          Before Justices Brown, Schenck, and Pedersen, III

          MEMORANDUM OPINION

          BILL PEDERSEN, III JUSTICE

         This is a forcible detainer action. Appellant Audra Draper[1] contends that the trial court erred in granting judgment evicting her when she raised a question of wrongful foreclosure. Appellee AJ & Sal Enterprises, LLC (AJ & Sal) argues that Draper's appeal is frivolous, and it seeks sanctions pursuant to rule 45 of the Texas Rules of Appellate Procedure. We affirm the trial court's judgment, but we decline to award sanctions in this case.

         Background

         This litigation involves the residential property at 6002 Bluewood Drive in Garland, Texas (the Property). At trial in the county court at law, AJ & Sal offered evidence that it purchased the Property at a foreclosure sale. AJ & Sal offered the following documents into evidence without objection from Draper: the Substitute Trustee's Deed, the Deed of Trust, and a November 9, 2017 notice to Draper to vacate the Property.

         Draper offered no documentary evidence or witness testimony other than her own. She testified that she had been wrongly foreclosed upon because the mortgage company had "messed with" her loan principal, reporting that she was behind $10, 000 in her payments when she was not.

         The trial court granted judgment for AJ & Sal. Draper appeals.

         Forcible Detainer

         A forcible detainer action asks the trial court to determine the right to immediate possession of real property when there was no unlawful entry on the property. Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.-Dallas 2001, no pet.). "It is intended to be a speedy, simple, and inexpensive means to obtain possession without resort to an action on the title." Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 470-71 (Tex. App.-Dallas 2010, pet. dism'd w.o.j.). Indeed, the only issue in a forcible detainer action is which party has the right to immediate possession of the property. Williams v. Bank of New York Mellon, 315 S.W.3d 925, 926-27 (Tex. App.-Dallas 2010, no pet.). To establish that it has the right to immediate possession, a forcible detainer plaintiff must prove that (1) it has a landlord-tenant relationship with the occupant of the premises; (2) it purchased the property at foreclosure; (3) it gave proper notice to the occupant of the property to vacate; and (4) the occupant refused to vacate the premises. Trimble v. Fed. Nat'l Mortg. Ass'n, 516 S.W.3d 24, 29 (Tex. App.-Houston [1st Dist.] 2016, pet. denied).

         Draper raises three issues in this Court; each points to one or more purported errors in the foreclosure process.[2] However, any challenge to the sale of property under a deed of trust must be brought in a separate suit in which title issues can be determined, not in an action for forcible detainer. Williams, 315 S.W.3d at 927.[3] Draper's issues could not be resolved in the forcible detainer trial, and we cannot resolve them in this appeal.

         Moreover, AJ & Sal established its right to possession of the Property at trial. The Substitute Trustee's Deed established that AJ & Sal purchased the Property at foreclosure. The Deed of Trust established the required landlord-tenant relationship. That document states:

If the Property is sold pursuant to this Section 22 [which addresses rights of acceleration and 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 or possession or other court proceeding. (Emphasis added.)

         The evidence also includes AJ & Sal's notice to Draper to vacate the Property within three days, and Draper acknowledged at trial that she received the notice. This action was initiated because she did not vacate the Property. Thus, AJ & Sal satisfied ...


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