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Rosas v. Wang

Court of Appeals of Texas, Fifth District, Dallas

August 23, 2019

ISIDRO ROSAS AND MARIA MARTINEZ, Appellants
v.
CHIH TING WANG, Appellee

          On Appeal from the County Court at Law No. 4 Dallas County, Texas Trial Court Cause No. CC-18-03072-D

          Before Justices Whitehill, Partida-Kipness, and Pedersen, III

          MEMORANDUM OPINION

          BILL PEDERSEN, III JUSTICE

         Appellee Chih Ting Wang filed an eviction case against Isidro Rosas and "all occupants" of the real property at issue in this appeal. The trial court rendered judgment against the defendants. Rosas and his wife, Maria Martinez, who was also an occupant of the subject property, appeal the judgment. We affirm.

         Background

         In 2004, Rosas purchased a single-family residence located at 1922 Prichard Lane, Dallas, Texas, 75217 (the Property). In connection with the financing of this purchase, Rosas signed a Deed of Trust for the benefit of Summit Mortgage Corporation. Rosas's wife, Martinez, also lived on the Property, but she was not listed on the Deed of Trust. The Deed of Trust was recorded in the Dallas County real property records.

         The Deed of Trust contained a "Sale Without Credit Approval" clause that required Summit Mortgage to demand immediate payment of all sums secured if Rosas sold or transferred the Property to a purchaser or grantee (i) who did not occupy the Property as his or her principal residence, or (ii) whose credit had not been approved in accordance with certain requirements. In addition, the Deed of Trust gave Summit Mortgage, or its successors and assigns, the right to sell the Property through a non-judicial foreclosure sale in accordance with the terms therein.

         Rosas contracted to sell the Property to Rafael Longoria in 2008 through a Contract for Deed. Under the contract terms, Longoria agreed to pay monthly installment payments, and Rosas agreed to convey the Property to Longoria upon "receiving full and final payment." According to appellee, this sale was in violation of the "Sale Without Credit Approval" clause in the Deed of Trust. The Longoria Contract for Deed was recorded in the Dallas County real property records, but appellee represents that such records contain no deeds or like conveyance instruments transferring title to the Property from Rosas to Longoria.

         Summit Mortgage assigned the Deed of Trust to Wells Fargo Bank, N.A. in 2011. The assignment was recorded in the Dallas County real property records. The following year, Longoria contracted to sell the Property to Aida Santollo, again through a Contract for Deed. Under the contract terms, Santollo agreed to pay monthly installments "as established by note or loan from owner Isidro Rosas and with the rate and terms on said note, which should be paid in full for the years thereof." The contract also provided that Longoria agreed to convey the Property to Santollo upon "receiving full and final payment." The Santollo Contract for Deed was recorded in the Dallas County real property records, but appellee represents that such records contain no deeds or like conveyance instruments transferring title to the Property from Longoria to Santollo.

         Rosas defaulted on the subject loan, though the record is unclear as to when the default occurred. Thereafter, Martinez filed three separate bankruptcy proceedings that, in appellee's view, were for the purpose of delaying foreclosure proceedings. Specifically, in March 2017, Martinez filed a Chapter 13 bankruptcy in federal bankruptcy court, but her bankruptcy case was subsequently dismissed for failure to make plan payments. Later that year, on October 2, Martinez filed a second Chapter 13 bankruptcy.

         The second bankruptcy was apparently unknown to Wells Fargo, whose substitute trustee sold the Property to Dan Willems the following day through a non-judicial foreclosure sale. On October 12, Wells Fargo rescinded the sale, see Tex. Prop. Code Ann. § 51.016, due to the bankruptcy stay in effect, see 11 U.S.C. § 362(a)(3). It mailed a Notice of Rescission of Foreclosure sale to Rosas and returned the bid amount to Willems. It also recorded in the Dallas County real property records an Affidavit of Notice of Rescission for Foreclosure Sale and an Affidavit of Return of Foreclosure Bid Funds for Rescinded Non-Judicial Foreclosure Sale. Appellee represents that no action challenging the effectiveness of the rescission was commenced on or before November 15, 2017, which was the thirtieth day after the Notice of Rescission was recorded. Prop. Code § 51.016(j) ("No action challenging the effectiveness of a rescission under this section may be commenced unless the action is filed on or before the 30th calendar day after the date the notices of rescission . . . [is] filed for recording.").

         Martinez's pending bankruptcy case was dismissed on November 6, 2017, based on her failure to file information. Nearly two months later, on January 2, 2018, Martinez filed a third Chapter 13 bankruptcy. Also on January 2, appellee purchased the Property in a foreclosure sale auction.[1] On January 11, a substitute trustee on behalf of Wells Fargo executed a Substitute Trustee's Deed that conveyed title to the Property to appellee. The Substitute Trustee's Deed was recorded in the Dallas County real property records.

         The following month, on February 14, appellee served a written Notice to Vacate- addressed to "Isidro Rosas and all Occupants"-by both regular and certified mail. Soon thereafter, on February 26, Martinez's third bankruptcy case was dismissed with prejudice to refiling same for 180 days based on her serial bankruptcy filings. On March 1, appellee filed a verified original petition for eviction[2] in Dallas County Justice Court, Precinct 1, Place 2, [3] against Rosas and "all occupants." Appellee's petition alleged that the defendants had failed to surrender possession of the Property by the time specified in the Notice to Vacate. The petition requested, among other relief, judgment against defendants for possession of the Property and for writ of possession.

         The case was called for trial in the justice court on March 27, 2018. The record contains no transcript from this trial. According to appellee, Martinez represented to the court that she had filed for bankruptcy, and Martinez did not disclose that the bankruptcy had already been dismissed. The justice court stayed appellee's case based on the bankruptcy action.

         Appellee subsequently filed a motion to end abeyance, and on May 14, 2018, the justice court rendered judgment in appellee's favor. Appellants appealed the judgment to Dallas County Court at Law No. 4. See Tex. R. Civ. P. 510.9 (setting forth procedures for appeal of judgment in an eviction case). Thereafter, they filed a "Plea in Abatement, Plea to Jurisdiction and Original Answer Subject to Plea." This filing contended that the Dallas County real property records do not show a sufficient instrument of conveyance of the Property to appellee, thereby depriving her of standing. Appellants also urged that defects in title on the face of the public records, including a defective affidavit in connection with the October 2017 rescission, deprived the county court of jurisdiction.

         Appellee filed a first amended petition for eviction and response to appellants' pleas. The amended petition was not verified.[4] Thereafter, on July 20, 2018, the county court held a hearing on the foregoing pleas and a bench trial on the merits. See Tex. R. Civ. P. 510.10(c) (requiring that eviction case on appeal must be tried de novo in the county court). The court rendered judgment that same day awarding ...


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