127 31 35 90 816 818 19 1936 596 194 196 1980 318 467 471 2010 315 927 127 35 90 818 19 02 09 00445 CV 2010 WL 4812983 24 2010 318 471 LLC 264 431 436 2008 61 555 559 2001 51 705 712 13 2001 02 08 00088 CV 2009 WL 1564994 2009 MERS MERS v. << (2011)

Court of Appeals of Texas, Waco.

In her two issues, Stephens argues that the evidence was insufficient to support Fannie Mae's right to possession and that the final judgment should be vacated due to the trial court's failure to address the merits of the underlying case.  In her brief, Stephens complains of Fannie Mae's failure to connect the dots between Provident Home Loans and Wells Fargo and argues that the title issue is so completely intertwined with the right to possession that the forcible detainer action cannot be adjudicated without first determining title.  A forcible detainer action is the procedure by which the right to immediate possession of real property is determined.  See Cattin v. Highpoint Village Apartments, 26 S.W.3d 737, 738–39 (Tex.App.—Fort Worth 2000, pet. dism'd w.o.j.).  Forcible detainer actions are intended to be a summary, speedy, and inexpensive remedy for resolving the question of who is entitled to immediate possession of real property.  Id. 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.  Thus, to prevail in a forcible detainer action, a plaintiff is not required to prove title but is only required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession.  Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 433 (Tex.App.—Houston [1st Dist.] 2007, no pet.).  Consequently, whether the sale of property under a deed of trust is invalid may not be determined in a forcible detainer and must be brought in a separate suit.  Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex.App.—Dallas 2010, no pet.). A forcible detainer action is cumulative, not exclusive, of other remedies that a party may have;  thus, the parties may pursue both a forcible detainer action in justice court and a suit to quiet title in district court.  Scott v. Hewitt, 127 Tex. 31, 35, 90 S.W.2d 816, 818–19 (1936).  Accordingly, forcible detainer actions in justice court may be prosecuted concurrently with title disputes in district court.  Haith v. Drake, 596 S.W.2d 194, 196 (Tex.Civ.App.––Houston [1st Dist.] 1980, writ ref'd n.r.e.).  Here, Fannie Mae demonstrated its right to possession of the Property by admitting into evidence the substitute trustee's deed, the deed of trust, and the notice to vacate that was sent to Stephens and the other residents of the Property.  The substitute trustee's deed evidenced Fannie Mae's purchase of the Property at a public auction following Stephens's default on the deed of trust.  The deed of trust evidenced Stephens's status as a tenant at sufferance when she did not vacate the Property after Fannie Mae purchased it.  The notice to vacate from Fannie Mae informed Stephens that she was a tenant at sufferance and that she was required to vacate the Property.  This evidence was sufficient to establish Fannie Mae's right to immediate possession of the Property.  Stephens did not put on any evidence showing that she was entitled to possession of the Property;  she merely questioned Fannie Mae's failure to connect the dots between Provident Home Loans and Wells Fargo regarding the title.  Any defects in the foreclosure process or with Fannie Mae's title to the Property may not be considered in a forcible detainer action.  See Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 471 (Tex.App.—Dallas 2010, pet. dism'd w.o.j.);  Williams, 315 S.W.3d at 927 (citing Scott, 127 Tex. at 35, 90 S.W.2d at 818–19).  Stephens is allowed to pursue any such defects in district court, but such defects are not relevant here in this forcible detainer action.  Thus, the trial court was not required, and was without jurisdiction, to address the issues in Stephens's pending suit to remove cloud from title pending in the district court.  Because the trial court could adjudicate only possession, because a tenant-at-sufferance relationship existed, and because the trial court properly adjudicated possession based on the evidence before it, we overrule Stephens's two issues and affirm the trial court's judgment.  See Fleming v. Fannie Mae, No. 02–09–00445–CV, 2010 WL 4812983, at *5 (Tex.App.—Fort Worth Nov. 24, 2010, no pet.) (mem.op.) (holding that Fannie Mae demonstrated its right to possession of property because tenant-at-sufferance relationship existed);  see also Shutter, 318 S.W.3d at 471 (same);  Salaymeh v. Plaza Centro, LLC, 264 S.W.3d 431, 436 (Tex.App.—Houston [14th Dist.] 2008, no pet.) (same);  Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 559 (Tex.App.—San Antonio 2001, pet. dism'd w.o.j.) (op. on reh'g) (same);  Rice v. Pinney, 51 S.W.3d 705, 712–13 (Tex.App.—Dallas 2001, no pet.) (same).  But see Mortg.  Elec. Registration Sys. v. Young, No. 02–08–00088–CV, 2009 WL 1564994, at *5 (Tex.App.—Fort Worth June 4, 2009, no pet.) (mem.op.) (holding that county court would have had to determine who owned property in order to determine possession because Young introduced evidence disputing both MERS's interest in property and any landlord-tenant relationship between her and MERS).

NO. 02–10–00251–CV

Decided: April 25, 2011