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Trimble v. Federal National Mortgage Association

Court of Appeals of Texas, First District

July 25, 2019

MARK TRIMBLE, Appellant
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee

          On Appeal from the County Court at Law No. 3 Galveston County, Texas Trial Court Case No. CV-0081892

          Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

          MEMORANDUM OPINION

          Gordon Goodman, Justice

         In this forcible detainer action, the trial court rendered a final judgment of possession in favor of Federal National Mortgage Association. Mark Trimble, who currently is in possession of the property, appeals, contending that the trial court erred in denying his motion to dismiss the Association's suit. We affirm.

         BACKGROUND

         The Association filed a forcible detainer action in the justice court and obtained a judgment of possession. Trimble appealed from that judgment to the county court, which tried the issue of possession de novo.

         In the county court, Trimble moved to dismiss the Association's suit based on non-compliance with Rule 736.11 of the Rules of Civil Procedure in the underlying foreclosure. Because the foreclosure was void due to non-compliance with the rule, Trimble argued, the Association's forcible detainer action must be dismissed.

         The county court denied Trimble's motion to dismiss, and then heard the Association's claim for possession. Without objection, the Association introduced into evidence a mortgage instrument, substitute trustee's deed, and notice to vacate the premises. The mortgage required the borrowers and anyone in possession to surrender possession of the property in the event of a foreclosure sale, and it provided that failure to surrender possession would render any occupiers tenants at sufferance subject to removal by writ of possession. The substitute trustee's deed showed that the Association had bought the property at a foreclosure sale. The notice showed that the Association demanded that Trimble vacate the property.

         The county court entered a final judgment of possession in the Association's favor. Trimble appeals from that judgment.

         DISCUSSION

         A. Applicable law

         Foreclosure and possession are distinct. Foreclosure results in the transfer of title to real property but does not place the new owner in possession. Coinmach Corp. v. Aspenwood Apt. Corp., 417 S.W.3d 909, 918 (Tex. 2013). To remove a tenant at sufferance, the new owner must file a forcible detainer action. Id.

         The lone issue in a forcible detainer action is the right to possession. Id. at 919. The action solely decides who has the right to immediate possession, not the merits of foreclosure or the right to title. See id. at 919-20; Isaac v. CitiMortgage, 563 S.W.3d 305, 310-11 (Tex. App.-Houston [1st Dist.] 2018, pet. denied).

         To prevail in a forcible detainer action, a plaintiff who purchased the property at ...


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