MARCUS SAWYER AND OR ALL OTHER OCCUPANTS v. DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR LONG BEACH MORTGAGE TRUST (2011)

2006–2, ITS SUCCESSORS AND ASSIGNS, Appellee

MEMORANDUM OPINION

Opinion By Justice Francis

Talance Sawyer appeals the default judgment awarding possession of the premises located at 1613 Mustang Court in Cedar Hill, Texas to Deutsche Bank National Trust Company, as trustee for Long Beach Mortgage Trust 2006–2.   In a single issue, appellant contends the trial court erred in not awarding him possession of the property.   We affirm.

On January 27, 2006, appellant signed a note payable to the Long Beach Mortgage Company for $480,000.   The same day, he secured the note with a deed of trust granting a first lien security interest in the property at 1613 Mustang Court in Cedar Hill to Long Beach Mortgage Company.   The property was sold at a foreclosure sale on October 6, 2009.   A substitute trustee deed conveyed the property to Deutsche Bank as trustee for Long Beach Mortgage Company.

Deutsche Bank subsequently notified appellant of the change in ownership and gave him notice to vacate the property.   When he did not do so, Deutsche Bank filed an original petition for forcible detainer in the justice of the peace court.   Both parties appeared for trial, and the justice of the peace court awarded possession of the property to Deutsche Bank.

Although appellant appealed to the county court at law, he then removed the case to federal court.   On November 1, 2010, the federal court remanded the case to the county court at law.   The case was set for trial de novo on December 2, 2010.   Appellant did not appear at trial, and the trial court entered a default judgment, finding appellant guilty of forcible detainer and ordering Deutsche Bank to recover possession of the property.   Appellant did not file a motion for new trial.   This appeal followed.

In a single issue, appellant claims the trial court erred in not granting him possession of the property because (1) Deutsche Bank did not “controvert any of the evidence” he presented and (2) the foreclosure sale was invalid due to lack of proper notice.

Appellant did not file a written answer in either the justice court or in county court at law and, although he filed the appeal de novo, he did not appear at trial in the county court at law.   In short, he did not present any evidence to controvert.   In contrast, Deutsche Bank alleged in its forcible detainer petition, and attached evidence in support of its allegations, that (1) the substitute trustee deed conveyed the property to Deutsche Bank after the foreclosure sale;  (2) the deed of trust signed by one or more of the occupants established a landlord-tenant relationship between Deutsche Bank and the occupants of the property;  (3) Deutsche Bank gave proper notice to the occupants that it required them to vacate the premises;  and (4) the occupants refused to vacate the premises.   This, along with appellant's failure to file an answer, is sufficient to establish Deutsche Bank had superior right to possession.   See Tex. Prop.Code Ann. §§ 24.002(a)(2), (b);  24.005 (West 2000);  U.S. Bank Nat'l Ass'n v. Freeney, 266 S.W.3d 623, 625 (Tex.App.—Dallas 2008, no pet.).

To the extent appellant claims the foreclosure sale was invalid, the record does not show appellant raised this issue in the trial court;  thus, it has not been preserved for our review.  Tex.R.App. P. 33.1(a)(1);  Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002).   We overrule appellant's sole issue.

We affirm the trial court's judgment.

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