Lecretta J. Dykes and all other Occupants v. Cendant Mortgage Corporation f/k/a PHH US Mortgage Corporation--Appeal from County Court at Law No 5 of Bexar County

MEMORANDUM OPINION
No. 04-02-00383-CV
Lecretta J. DYKES,
Appellant
v.
CENDANT MORTGAGE CORPORATION f/k/a PHH U.S. Mortgage Corporation,
Appellee
From the County Court at Law No. 3, Bexar County, Texas
Trial Court No. 272130
Honorable Timothy Johnson, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: April 30, 2003

AFFIRMED

This appeal arises from a forcible detainer and eviction suit. Appellant Lecretta Dykes argues that the trial court improperly granted summary judgment. We affirm.

Background

Appellee Cendant Mortgage Corporation ("Cendant") purchased the house in which Dykes lives at a non-judicial foreclosure sale. Upon purchase, Cendant received from the substitute trustee the trustee's deed. Despite her house being sold at the foreclosure sale and despite being notified to vacate, Dykes did not surrender the property. More than ten days after notice to vacate was delivered to Dykes, Cendant filed the underlying forcible detainer and eviction suit. Cendant then filed a motion for summary judgment. The trial court rendered summary judgment in Cendant's favor and issued a writ of possession. Dykes appeals that judgment.

Standard of Review

We review the granting of this motion for summary judgment under the usual standard of review. See Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Prop. Mgmt., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985).

Discussion

The deed of trust in this case allowed for a non-judicial foreclosure. The manner in which a non-judicial foreclosure is conducted is strictly governed by chapter 51 of the Property Code. See Tex. Prop. Code Ann. 51.002 (Vernon 1995). A non-judicial foreclosure transfers title from the debtor to another party, but it does not put the new owner in possession; it gives him a right to possession. Lighthouse Church v. Tex. Bank, 889 S.W.2d 595, 603 (Tex. App.--Houston [14th Dist.] 1994, writ denied). If a debtor remains on the property, most deeds of trust treat him as a tenant by sufferance. Id. Indeed, the deed of trust here treats Dykes as a tenant by sufferance. The deed of trust provides that if Dykes is in default, the Lendor may seek foreclosure. Further, if the property is sold at a foreclosure sale, the deed of trust requires Dykes or any person holding possession of the property through Dykes to immediately surrender possession of the property to the purchaser at that sale. According to the deed, "[i]f possesssion is not surrendered, [Dykes] or such person shall be a tenant at sufferance and may be removed by writ of possession."

To remove a tenant by sufferance, the new owner must file a forcible detainer suit. Lighthouse, 889 S.W.2d at 603. A forcible detainer action is a procedure to determine the right to immediate possession of real property. Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557 (Tex. App.--San Antonio 2001, pet. dism'd w.o.j.). It is intended to be a speedy, simple, and inexpensive means to obtain possession without resort to an action on the title. Id. Indeed, Texas Rule of Civil Procedure 746 provides that "the only issue shall be as to the right to actual possession; and the merits of the title shall not be adjudicated." Tex. R. Civ. P. 746. Accordingly, the only issue in a forcible detainer action is which party has the right to immediate possession of the property. Dormady, 61 S.W.3d at 557.

To prevail in a forcible detainer action, the plaintiff need not prove title. Id. Rather, the plaintiff must present sufficient evidence of ownership to demonstrate a superior right to immediate possession. Id. Here, Cendant presented summary judgment evidence that it is the owner by virtue of a deed from the substitute trustee following the foreclosure sale, that Dykes is a tenant at sufferance, and that Cendant has the superior right to immediate possession. We, therefore, overrule Dykes's issue.

Conclusion

We affirm the judgment of the trial court and assess costs against Dykes. (1)

Karen Angelini, Justice

1. Although Texas Rule of Appellate Procedure 20.1(c)(1) required Dykes to file her affidavit of indigence with the clerk of the trial court, Dkyes filed an affidavit of indigence with our appellate court clerk. An affidavit filed with the clerk of the court of appeals does not satisfy rule 20.1(c)(1)'s requirements. Holt v. F.F. Enters., 990 S.W.2d 756, 758-59 (Tex. App.--Amarillo 1998, pet. denied). We, therefore, assess costs against Dykes.