McDaniel, Jackqueline and all other occupants v. HSBC Bank USA, NA--Appeal from County Court at Law No. 3 of Dallas County (memorandum opinion )
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AFFIRM; Opinion Filed February 6, 2013. In The nurt ut Apiiah 3fiftl! Oistrirt øf !Iixa tt flatta No. 05-1 1-00238-CV JACKQUELINE McDANIEL, Appellant V. HSBC BANK USA, NA, AS TRUSTEE ON BEHALF OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST AND FOR THE REGISTERED HOLDERS OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2007-ASAPI, ASSET BACKED PASS-THROUGH CERTIFICATES, Appellee On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-1O-O8 157-C MEMORANDUM OPINION Before Justices Lang-Miers, Myers, and Lewis Opinion by Justice Myers Jacqueline McDaniel appeals the trial court s judgment in favor of HSBC Bank, USA, NA, as Trustee on Behalf of Ace Securities Corp. Home Equity Loan Trust and for the Registered Holders of Ace Securities Corp. Home Equity Loan Trust, Series 2007-ASAPI, Asset Backed Pass-Through Certificates, in this forcible detainer action. Appellant brings one issue asserting the trial court erred by granting appellee possession of the premises because there was no evidence of a landlord tenant relationship between the parties. We affirm the trial court s judgment. BACKGROUND In 2005, appellant borrowed $159,000 from Summit Funding, Inc. secured by a deed of trust on her house, The beneficiary under the deed of trust was MERS, Mortgage Electronic Registration Systems, Inc., acting solely as a nominee for Lender and Lender s successors and assigns. The deed of trust provided that if appellant defaulted, the trustee could sell the property. The deed of trust also stated that if appellant did not surrender possession of the property after it was sold, she shall be a tenant at sufferance and may be removed by writ of possession or other court proceeding. In 2010, the property was posted for foreclosure and was sold at public auction for $168,900. The foreclosure sale deed stated the Original Mortgagee was Mortgage Electronic Registration Systems, Inc., as Nominee, the Current Mortgagee was appellee, and the Buyer was appellee. After the foreclosure auction, appellee sent appellant notice demanding she vacate the property within three days. The notice informed appellant that appellee would file a forcible detainer action if she did not vacate. Appellant did not vacate the property, and appellee filed a petition for forcible detainer in the justice court. The justice court ruled that appellee was entitled to possession of the premises. Appellant appealed the ruling to the county court at law. After a trial de novo, the county court at law ordered that appellee have judgment of possession of the property against appellant. Appellant appeals the county court at law s decision. FORCIBLE DETAINER ACTIONS A forcible detainer action is a procedure to determine the right to immediate possession of real property where there was no unlawful entry. Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. -2- App. Dallas 2001, no pet). It is intended to be a summary, speedy, and inexpensive means to obtain possession without resort to an action on the title. Scott v. Hewitt, 90 S,W,2d 816, 8 18 19 (1936). To maintain simplicity, the applicable rule of procedure 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. Rice, 51 S.W.3d at 709. Whether a sale of property under a deed of trust is invalid may not be determined in a forcible detainer but must be brought in a separate suit. Scott, 90 S.W.2d at 818 19; Rice, 51 S.W.3d at 710. Appellant argues appellee did not introduce a deed of trust executed by appellant to show a landlord tenant-at-sufferance relationship existed between the parties. Appellee introduced the deed of trust signed by appellant which stated, If the Property is sold pursuant to this Section 22 [foreclosure and public auction], Borrower or any person holding possession of the Property through Borrower shall immediately surrender possession of the Property 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 or other court proceeding. In the deed of trust, appellant was defined as Borrower, and the foreclosure sale deed showed appellee was Buyer, or in the language of the deed of trust, the purchaser. When appellant did not surrender the property, appellant became a tenant at sufferance with appellee as landlord. Thus, appellee did introduce evidence of a landlord tenant-at-sufferance relationship between the parties. Appellant argues appellee failed to show it was entitled to enforce the deed of trust because appellee presented no evidence of a transfer of the deed of trust from Mortgage Electronic Registration Systems, Inc. to appellee. However, the validity of a foreclosure sale may not be determined in a suit for forcible detainer but must be brought in a separate suit. -3- Scott, 90 S.W,2d at 818 19; Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App. Dallas 2010, no writ). To prevail on its forcible detainer action, appellee had to prove (1) it owned the property by virtue of a foreclosure sale deed, (2) appellant became a tenant at sufferance when the property was sold under the deed of trust, (3) appellee gave appellant notice to vacate the premises, and (4) appellant refused to vacate the premises. Eiwell v. Countrywide Home Loans, Inc., 267 S.W.3d 566, 568 69 (Tex. App. Dallas 2008, pet. dism d w,o.j.); see also TEx. PROP. CODE ANN. § 24.002 (West 2000). The foreclosure sale deed showed appellee purchased the property in a public auction after appellant was sent notice of default and an opportunity to cure. The deed of trust showed appellant was a tenant at sufferance when appellant failed to vacate the property after appellee purchased it. The notice to vacate informed appellant of appellee s requirement that appellant vacate the property. Debra Coleman, appellee s records custodian, testified that appellee s records showed the property was still occupied. This evidence was sufficient to establish appellee s right to immediate possession of the property. See Williams, 315 S.W.3d at 927; Elwell, 267 S.W.3d at 568 69. It was not necessary for the trial court to determine whether the foreclosure was valid before awarding possession to appellee. Elwell, 267 S.W.3d at 569. We overrule appellant s issue. We affirm the trial court s judgment. LARS+ JUSTICE 11023 8F.P05 -4- Quurt uf Appithi JFift1 3i6trirt uf exa at DattLu JUDGMENT JACKQUELINE McDANIEL, Appellant No, 05-1 1-00238-CV On Appeal from the County Court at Law No. 3, Dallas County, Texas Trial Court Cause No. CC-10-08 157-C. Opinion delivered by Justice Myers. Justices Lang-Miers and Lewis participating. V. HSBC BANK USA, NA, AS TRUSTEE ON BEHALF OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST AND FOR THE REGISTERED HOLDERS OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2007-ASAPI, ASSET BACKED PASS-THROUGH CERTIFICATES, Appellee In accordance with this Court s opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee HSBC BANK USA, NA, AS TRUSTEE ON BEHALF OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST AND FOR THE REGISTERED HOLDERS OF ACE SECURiTIES CORP. HOME EQUITY LOAN TRUST, SERIES 2007-ASAPI, ASSET BACKED PASS-THROUGH CERTIFICATES recover its costs of this appeal from appellant JACKQUELINE McDANIEL. Judgment entered this 6th day of February, 2013. LANA MYERS JUSTICE -5-
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