Court of Appeals of Texas, Second District, Fort Worth
Josefina Martinez, Juan Martinez and/or All Other Occupants of 1704 Crimson Ct., Arlington, TX, 76018, Appellants
Cerberus SFR Holdings, L.P., Appellee
Appeal from County Court at Law No. 1 Tarrant County, Texas
Trial Court No. 2018-006342-1
Sudderth, C.J.; Birdwell and Bassel, JJ.
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.
Factual and Procedural Background and Points Raised on
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.
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. Appellants then perfected an appeal to
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.
reasons detailed below, we overrule each of Appellants'
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
(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)
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
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
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
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 ...