Court of Appeals of Texas, Seventh District, Amarillo
Appeal from County Court No. 1, Ellis County, Texas Trial
Court No. 17-C-3679, Honorable Jim Chapman, Presiding
QUINN, C.J., and PIRTLE and PARKER, JJ.
QUINN CHIEF JUSTICE
appeal involves a forcible entry and detainer action. James
Thomas Ayers III appeals the final order of the trial court
granting Carrington Mortgage Services, LLC possession of the
realty. Carrington bought the realty from the purchaser at
the foreclosure sale. Upon considering Ayers's four
issues, we affirm.
One - Proof of Right to Possession
initially contends that the trial court should have abated
the detainer action until Carrington's title to the
property was established in some other proceeding. Because
Carrington failed to "connect the dots" or
establish its chain of title from the foreclosure sale, the
judgment allegedly should be reversed. We overrule the issue.
complaint is nothing more than one attacking the sufficiency
of the evidence underlying the trial court's decision. To
prevail in a forcible entry and detainer suit, the plaintiff
is required to show sufficient evidence of a superior right
to possession. Hornsby v. Sec'y of Veterans
Affairs, No. 05-11-01075-CV, 2012 Tex.App. LEXIS 6880,
at *5 (Tex. App.-Dallas Aug. 16, 2012, no pet.) (mem. op.);
accord Garcia v. HSBC Bank, No. 02-11-00324-CV, 2012
Tex.App. LEXIS 471, at *1-2 (Tex. App.-Fort Worth Jan. 19,
2012, no pet.) (mem. op.) (stating that a plaintiff is not
required to prove title, but only required to present
sufficient evidence of ownership to demonstrate a superior
right to immediate possession). Thus, the only issue is the
right to possession. Bierwirth v. AH4R I TX LLC, No.
01-13-00459-CV, 2014 Tex.App. LEXIS 11925, at *8 (Tex. App.-
Houston [1st Dist] Oct. 30, 2014, no pet.) (mem. op.);
Garcia, 2012 Tex.App. LEXIS 471, at *1. And, though
the trial court may not consider whether the foreclosure and
ensuing sale were proper, the existence of a title dispute
does not deprive the court of jurisdiction over the forcible
detainer action. See Bierwirth, 2014 Tex.App. LEXIS
11925, at *9.
the evidence before the court consisted of four documents
offered by Carrington. They were as follows: 1) a deed of
trust signed by James Thomas Ayers III and Pamela Renee Ayers
for the benefit of Mortgage Electronic Registration Systems,
Inc; 2) a substitute trustee's deed, conveying the realty
to Taylor, Bean & Whitaker Mortgage Corporation; 3) a
special warranty deed conveying the property from Taylor,
Bean & Whitaker to Carrington; and 4) a business records
affidavit to which were attached notices to vacate addressed
to James Thomas Ayers III, Pamela Renee Ayers, and
"occupant(s) and/or tenant(s)" of the property.
Furthermore, it is undisputed that Ayers did not vacate the
property. Finally, within paragraph eighteen of the deed of
trust appeared the following language: "If the Property
is sold pursuant to [foreclosure], Borrower or any person
holding possession of the Property through Borrower shall
immediately surrender possession to the purchaser at that
sale. If possession is not surrendered, Borrower or such
person shall be a tenant at sufferance and may be removed by
writ [of] possession
identical evidence was presented in Hornsby. It
consisted of 1) a substitute trustee's deed showing U.S.
Bank purchased the property at the foreclosure sale, 2) the
warranty deed transferring title of the property from U.S.
Bank to the Secretary of Veterans Affairs, 3) the deed of
trust executed by Felix and Donjell in October 2003, 4) the
notices to vacate sent to Felix, Donjell, and all occupants,
and 5) testimony showing the property was still occupied.
See Hornsby, 2012 Tex.App. LEXIS 6880, at *3. And,
the Hornsby court found it sufficient to support the
judgment awarding possession to the Secretary of Veterans
Affairs. Id. at *7-8; see also Jimenez v. Fed.
Nat'l Mortg. Ass'n, No. 02-15-00229-CV, 2016
Tex.App. LEXIS 7192, at *7-8 (Tex. App.-Fort Worth July 7,
2016, no. pet.) (mem. op.) (also holding virtually identical
evidence to be sufficient). The same is no less true, at bar.
And, "[a]lthough [Ayers] challenges the chain of title
to the property, 'the merits of the title shall not be
adjudicated' in a forcible detainer action."
Hornsby, 2012 Tex.App. LEXIS 6880, at *8 (quoting
Two - Missing Oath
next contends that, since the pleadings of Carrington were
not "sworn to by Plaintiff," they were defective,
which defect was "jurisdictional." Consequently, the
trial court allegedly erred in awarding possession to
Carrington. Yet, in an action for forcible detainer, a
defective verification does not deprive the trial court of
jurisdiction. Randle v. Deutsche Bank Nat'l Trust
Co., No. 05-14-01439-CV, 2016 Tex.App. LEXIS 749, at *14
(Tex. App.-Dallas Jan. 26, 2016, no pet.) (mem. op.); see
Lenz v. Bank of Am., N.A., 510 S.W.3d 667, 669 (Tex.
App.-San Antonio 2016, pet. denied); Norvelle v. PNC
Mortg., 472 S.W.3d 444, 446 (Tex. App.-Fort Worth 2015,
no pet.). Nor does the fact that the petition was signed by
the plaintiff's attorney alone render it defective.
See Norvelle, 472 S.W.3d at 447-49. We overrule the
Three - Pre-Suit Demand
next contends that the trial court erred because Carrington
"had not made a valid pre-suit demand for possession
with capacity to make such demand." In other words,
"there was no visible connection in the record from
Ayers all the way to Carrington . . . [and] there were, in
fact, gaps in authority and/or ownership of the
Property." This argument likens to that raised in the
first point of error, and we overrule it, like we did Issue
One, for similar reasons. The evidence was sufficient to
entitle Carrington to possession. So, it was sufficient to
give Carrington, through its attorney/agent, standing to
demand possession, as its attorney did here.
Four - Privity ...