Appeal from the County Court at Law No. 4 Fort Bend County,
Texas Trial Court Case No. 17-CCV-059731
consists of Justices Lloyd, Landau, and Countiss.
Monica Hardaway and Glenn Hardaway (collectively "the
Hardaways"), have filed a notice of appeal of the trial
court's final judgment in a forcible detainer proceeding.
Appellee, Deutsche Bank National Trust Company as Trustee, In
Trust for Registered Holders of Long Beach Mortgage Loan
Trust 2006-WL1, Asset-Backed Certificates, Series 2006-WL1
("Deutsche Bank"), has filed a motion to dismiss
the appeal as moot contending that there is no longer an
actual controversy between the parties.
dismiss the appeal.
underlying proceedings, Deutsche Bank filed a forcible
detainer petition in the justice court, which ruled in the
Hardaways' favor. Deutsche Bank then appealed to the
county court at law. In that court, Deutsche Bank moved for
summary judgment asserting that it was entitled to a judgment
of possession because the Hardaways were tenants at
sufferance who did not vacate the property after they were
given proper notice. Deutsch Bank specifically asserted that
(1) it was "the foreclosure sale purchaser of the
subject property as evidenced by a substitute trustee's
deed," (2) the "foreclosure sale was held pursuant
to a Deed of Trust, creating a landlord tenant relationship
upon foreclosure," (3) Deutsche Bank served a written
demand on the Hardaways to vacate the property and (4) they
"failed to vacate." Deutsche Bank's
summary-judgment evidence included the substitute
trustee's deed showing Deutsche Bank as the
"Grantee/Buyer," and the deed of trust, which
provided that a mortgagor who did not surrender possession of
the property to the purchaser at a foreclosure sale was a
tenant at sufferance. The Hardaways responded asserting that
"no tenant-landlord relationship ever existed"
because Deutsch Bank "did not possess the Note or Deed,
and had no ownership in [their] property," had
"committed fraud," and "the sale and purchase
of [their] property was fraudulent."
summary-judgment hearing, the trial court signed a final
summary judgment order awarding Deutsch Bank possession of
the property. And, the trial court set a "sequestration
bond" in the amount of $39, 500.00. The Hardaways
filed a notice of appeal of the final judgment but did not
post a bond. Subsequently, a writ of possession was issued
and executed with possession of the property "turned
over" to Deutsch Bank.
Bank has moved to dismiss the appeal as moot arguing that an
actual controversy no longer exists between the parties
because it has taken possession of the property and the
Hardaways do not assert a potentially meritorious claim of
right to current, actual possession of the property. In
response, the Hardaways contend that an actual controversy
remains because the underlying "deed conveyance"
and foreclosure were fraudulent and "[c]onsequently
[they] were never and are not tenants at sufferance" and
issuance of a writ of possession was unlawful. The Hardaways
do not assert in their response that they have current,
actual possession of the property.
only issue in a forcible detainer proceeding is the right to
actual possession of the property. See Marshall v. Hous.
Auth of the City of San Antonio, 198 S.W.3d 782, 785-86
(Tex. 2006); Morris v. Am. Home Mortg. Servicing,
Inc., 360 S.W.3d 32, 34 (Tex. App.-Houston [1st Dist.]
2011, no pet.). To prevail, "the plaintiff is not
required to prove title, but is only required to show
sufficient evidence of ownership to demonstrate a superior
right to immediate possession." Morris, 360
S.W.3d at 34; see, e.g., Myers v. PennyMac
Corp., No. 01-18-00167-CV, 2018 WL 5259963, at *2 (Tex.
App.-Houston [1st Dist.] Oct. 23, 2018, no pet.). Any
challenges to title or an underlying foreclosure process must
be pursued in a separate suit. See Schlichting v. Lehman
Bros. Bank FSB, 346 S.W.3d 196, 199 (Tex. App.- Dallas
2011, pet. dism'd); see Jelinis, LLC v. Hiran,
557 S.W.3d 159, 167 (Tex. App.-Houston [14th Dist.] 2018,
pet. denied) (explaining issues concerning both title and
possession may be litigated in separate proceedings in
different courts with appropriate jurisdiction);
Morris, 360 S.W.3d at 35 ("[T]he county court
can determine possession without quieting title if the deed
establishes a landlord-tenant relationship between the
borrower and the purchaser of the property at the foreclosure
appellant is no longer in possession of the property, an
appeal becomes moot unless the appellant has and asserts
"a potentially meritorious claim of right to current,
actual possession" of the property at issue.
Marshall, 198 S.W.3d at 787; see Guillen v. U.S.
Bank, N.A., 494 S.W.3d 861, 865-66 (Tex. App.-Houston
[14th Dist.] 2016, no pet.). In this case, the record shows
that a writ of possession was executed and the property was
"turned over" to Deutsche Bank. Because their
claims that the underlying conveyance and foreclosure were
fraudulent are not properly resolved in a forcible detainer
proceeding, the Hardaways have not shown a potentially
meritorious claim of right to current, actual possession.
See Roberts v. CitiMortgage, Inc., No.
06-18-00024-CV, 2018 WL 5831333, at *2-3 (Tex. App.-
Texarkana Nov. 8, 2018, no pet.) (mem. op.); Brigandi v.
Am. Mortg. Inv. Partners Fund I Trust, No.
02-16-00444-CV, 2017 WL 1428726, at *4 (Tex. App.-Fort Worth
Apr. 20, 2017, pet. dism'd) (mem. op.); Resendez v.
FV REO I, LLC, No. 03-13-00201-CV, 2014 WL 411720, at *1
(Tex. App.-Austin Jan. 31, 2014, no pet.) (mem. op.). As a
result, there no longer is a live controversy concerning
possession. Accordingly, we grant Deutsche Bank's motion
to dismiss and dismiss the appeal. See Tex. R. App.
P. 43.2(f). We dismiss any other pending motions as moot.
 See Tex. R. Civ. P. 510.9.
Deutsche Bank's perfection of an appeal from the justice
court to the county court at law vacated and annulled the
justice court judgment. See Villalon v. Bank One,
176 S.W.3d 66, 69-70 (Tex. App.-Houston [1st Dist.] 2004,
 "A judgment of a county court may
not under any circumstances be stayed pending appeal unless,
within 10 days of the signing of the judgment, the appellant
files a supersedeas bond in an amount set by the county
court." Tex. Prop. Code Ann. § 24.007. If a
supersedeas bond is not filed, "the judgment may be
enforced, including issuance of a writ of possession evicting
the [appellant] from the property." Marshall v.
Hous. Auth. of City of San Antonio, 198 S.W.3d 782, 786
(Tex. 2006). A party's indigence does not relieve the
party of the obligation to file a supersedeas bond. Morse
v. Fed. Nat'l Mortg. Ass'n, No. 05-18-00999-CV,
2018 WL 4784585, at *1 (Tex. App.-Dallas Oct. 4, 2018, no