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Martinez v. Cerberus SFR Holdings, L.P.

Court of Appeals of Texas, Second District, Fort Worth

November 14, 2019

Josefina Martinez, Juan Martinez and/or All Other Occupants of 1704 Crimson Ct., Arlington, TX, 76018, Appellants
v.
Cerberus SFR Holdings, L.P., Appellee

          On Appeal from County Court at Law No. 1 Tarrant County, Texas Trial Court No. 2018-006342-1

          Before Sudderth, C.J.; Birdwell and Bassel, JJ.

          MEMORANDUM OPINION

          Dabney Bassel, Justice

         I. Introduction

         This is an appeal from a judgment for possession entered by the trial court in a forcible entry and detainer (FED) proceeding. The judgment awards Appellee Cerberus SFR Holdings, L.P. possession of real property occupied by Appellants Josefina and Juan Martinez as their residence. The four points that Appellants raise on appeal, in essence, collapse into an attack on the form of the Substitute Trustee's Deed that underlies Appellee's claim of title. That argument is not one properly raised in an FED action; instead, the argument should be raised in a separate suit attacking the foreclosure. Thus, challenges based on the form of a Substitute Trustee's Deed are beyond our purview in this appeal, and we overrule all four of Appellants' points.

         II. Factual and Procedural Background and Points Raised on Appeal

         Appellee filed an original petition for forcible detainer in justice court that recited that (1) Appellee had acquired title through a Substitute Trustee's Deed; (2) the foreclosure of the underlying deed of trust made Appellants tenants at sufferance; (3) by virtue of the foreclosure, Appellee had become Appellants' landlord; (4)Appellee had served written demand on Appellants to vacate the property; and (5) Appellants had refused to vacate. The clerk's record is apparently incomplete in view of the following statement in Appellants' brief: "[Appellants] filed their pleas in abatement and to jurisdiction, and answer subject to such pleas in the Justice Court, Precinct 7, on September 5, 2018[, ] but such does not appear to be a part of the County Clerk's record for reasons unknown to [Appellants]." However, no one disputes that the matter was appealed to the county court at law. That court conducted a trial de novo at which it received into evidence the Substitute Trustee's Deed, the underlying Deed of Trust, and a business records affidavit to which notices to vacate were attached. The county court at law signed a judgment for possession, awarding Appellee possession of the subject property and setting the amount of a supersedeas bond.

         Appellants requested findings of fact and conclusions of law and also filed a motion for new trial. The trial court did not make findings, nor did it enter a written order ruling on the motion for new trial.[1] Appellants then perfected an appeal to this court.

         As we are able to interpret them, the four points raised by Appellants are as follows:

• Appellee failed to make an adequate presuit demand that Appellants vacate the subject property because defects in the Substitute Trustee's Deed invalidated that deed and thus invalidated both Appellee's claim of title and its right to demand possession.
• Because of the claimed defects in the Substitute Trustee's Deed, Appellee lacked standing to claim possession of the subject property.
• Because of the claimed defects in the Substitute Trustee's Deed, that deed should not have been accorded a presumption of validity.
• The fact that the lender identified in the Deed of Trust and the holder of the note named in the Substitute Trustee's Deed do not match established that the trial court erred by awarding Appellee possession. Further, the record does not establish that Appellants had refused to vacate the subject property after receiving Appellee's demand to vacate.

         For the reasons detailed below, we overrule each of Appellants' points.

         III. Applicable Law

         "A person who refuses to surrender possession of real property on demand commits a forcible detainer if the person . . . is a tenant at will or by sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant's lease . . . ." Tex. Prop. Code Ann. § 24.002(a)(2). Specifically, in an FED action arising after a foreclosure, the plaintiff carries the burden to establish four elements:

(1) the substitute trustee conveyed the property by deed to appellees after the foreclosure sale; (2) the deed of trust signed by appellants established a landlord[-]tenant relationship between appellants and appellees; (3) appellees gave proper notice to appellants to vacate the premises; and (4) appellants refused to vacate the premises.

Pruitt v. Scott, No. 10-18-00211-CV, 2019 WL 1831646, at *1 (Tex. App.-Waco Apr. 24, 2019, pet. denied) (mem. op.).

         It is axiomatic that the only issue litigated in an FED action is the superior right to actual and immediate possession. Title should not be litigated. Simply put,

[a] forcible-detainer action is used to determine the superior right to actual and immediate possession of real property. See Tex. R. Civ. P. 510.3(e) (stating that in a forcible[-]detainer action, "[t]he court must adjudicate the right to actual possession and not title"); see also Diffley v. Fed. Nat'l Mortg. Ass'n, No. 02-13-00403-CV, 2014 WL 6790043, at *1 (Tex. App.-Fort Worth Nov. 26, 2014, no pet.) (mem. op.); Williams v. Bank of New York Mellon, 315 S.W.3d 925, 926-27 (Tex. App.-Dallas 2010, no pet.). The only issue in a forcible-detainer action is which party has the superior right to immediate possession. See Dyhre v. Hinman, No. 05-16-00511-CV, 2017 WL 1075614, at *2 (Tex. App.-Dallas Mar. 22, 2017, pet. denied) (mem. op.) (citing Williams, 315 S.W.3d at 927); Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.-Dallas 2001, no pet.).

Jimenez v. McGeary, 542 S.W.3d 810, 812 (Tex. App.-Fort Worth 2018, pet. denied); see Black v. Wash. Mut. Bank, 318 S.W.3d 414, 417 (Tex. App.-Houston [1st Dist.] 2010, pet. dism'd w.o.j.) (stating that a court's determination "of possession in a forcible[-]detainer action is a determination only of the right to immediate possession of the premises, and does not determine the ultimate rights of the parties to any other issue in controversy relating to the realty in question").

         A plaintiff in an FED action establishes the superior right to immediate possession by establishing the fact of a foreclosure pursuant to a deed of trust that created a tenancy at sufferance after the foreclosure. See U.S. Bank Nat'l Ass'n v. Freeney, 266 S.W.3d 623, 625-26 (Tex. App.-Dallas 2008, no pet.) ("The foreclosure pursuant to the deed of trust established a landlord and tenant-at-sufferance relationship between appellee and appellant, and that landlord[-]tenant relationship provides a basis for determining the right to immediate possession.").

         As the First Court of Appeals explained,

[a] plaintiff in a forcible[-]detainer action is not required to prove title[] but is only required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession. Under well-settled law, a deed of trust that establishes a landlord[-]tenant relationship between the borrower and the purchaser of the ...

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