Agnes Phillips v. Federal National Mortgage Association ( 2018 )

Affirmed and Opinion Filed January 17, 2018
S
Court of Appeals
In The
Fifth District of Texas at Dallas
No. 05-16-01354-CV
AGNES PHILLIPS, Appellant
V.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee
On Appeal from the County Court at Law No. 2
Dallas County, Texas
Trial Court Cause No. CC-16-04279-B
MEMORANDUM OPINION
Before Justices Bridges, Myers, and Schenck
Opinion by Justice Bridges
In this forcible detainer action, appellant Agnes Phillips appeals the trial court’s judgment
in favor of appellee Federal National Mortgage Association (Fannie Mae). On appeal, she
appears to challenge underlying summary judgments previously decided against her in this
Court1 and whether she received adequate notice pursuant to section 24.005 of the Texas
Property Code to vacate the Property at issue. After liberally construing Phillip’s pro se
amended appellate brief, we conclude she has not shown reversible error and affirm the trial
court’s judgment.
1
See Phillips v. Nationstar Mortg., LLC, No. 05-15-01332-CV, 2017 WL 1908621 (Tex. App.—Dallas May 9, 2017) (mem. op.).
Background
In 2006, Phillips purchased the Property at issue by obtaining a loan secured by a deed of
trust. In February 2011, she filed for Chapter 13 bankruptcy. The bankruptcy case was
dismissed and reinstated multiple times.
After a December 2013 bankruptcy dismissal, Nationstar Mortgage LLC sent Phillips a
notice of acceleration and substitute trustee’s sale for the Property. On January 7, 2014,
Nationstar purchased the Property at issue for $178,093.86. Nationstar conveyed the property to
Fannie Mae by warranty deed on January 30, 2014.
Fannie Mae initiated eviction proceedings in early January 2015. Phillips then filed suit
seeking to quiet title to the Property and to enjoin the eviction proceedings. Nationstar and
Fannie Mae filed a traditional and no-evidence motion for summary judgment arguing Phillips
received proper notices and the automatic bankruptcy stay was not in effect at the time of the
necessary foreclosure proceedings and the foreclosure sale. Phillips did not respond to these
motions, and the trial court granted judgment in favor of Nationstar and Fannie Mae. Phillips
appealed the summary judgments arguing the property was listed in her bankruptcy filing as her
homestead, and “she assumed it was protected from foreclosure.”
While that case was pending on appeal in this Court,2 Fannie Mae sent Phillips a notice to
vacate and demand for possession on June 17, 2016. After Phillips refused to vacate, Fannie
Mae filed its original petition for forcible detainer on August 26, 2016.
During trial, Fannie Mae offered into evidence, without objection, the following
documents: (1) certified copy of the deed of trust; (2) certified copy of trustee’s deed from the
2014 foreclosure sale; (3) certified copy of the warranty deed conveying property from
2
See Phillips, 2017 WL 1908621, at *1.
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Nationstar to Fannie Mae; and (4) Fannie Mae’s June 17, 2016 notice to vacate and demand for
possession.
Phillips testified in her own defense that she was the owner of the Property, but when
Nationstar foreclosed on the Property, she was in bankruptcy. She asked the trial court to stay
the current litigation until this Court resolved the underlying appeal. Fannie Mae argued the
deed of trust contained a tenant-at-sufferance clause; therefore, her argument regarding title of
the Property did not impact the court’s ability to determine possession. The trial court took the
matter under advisement, but signed a judgment of possession in favor of Fannie Mae on
October 19, 2016. Phillips now appeals the trial court’s order granting Fannie Mae possession of
the Property.
Discussion
Phillips is not represented by counsel on appeal. We construe liberally pro se pleadings
and briefs. However, we hold pro se litigants to the same standards as licensed attorneys and
require them to comply with applicable laws and rules of procedure. In re N.E.B., 251 S.W.3d
211, 211–12 (Tex. App.—Dallas 2008, no pet.) (citing Mansfield State Bank v. Cohn, 573
S.W.2d 181, 184–85 (Tex. 1978)); see also TEX. R. APP. P. 38.9 (briefing rules construed
liberally). To do otherwise would give a pro se litigant an unfair advantage over a litigant who is
represented by counsel. In re N.E.B., 251 S.W.3d at 212.
This Court notified Phillips of several deficiencies in her original brief and she filed an
amended brief correcting some, but not all, of the defects. Much of Phillips’ brief seemingly
reargues summary judgment and bankruptcy issues previously decided by this Court.3 See
Phillips, 2017 WL 1908621, at*1. Because we have previously decided these issues, we need
3
For example, under “Issues Presented,” she states, “Did any of the lower courts err when considering Appellant’s pleadings or evidence,
or granting Appellee’s summary judgment?” “Is there genuine material dispute?” “Is Appellant Phillips entitled to Summary Judgment as a
matter of law?” “What standards of review or evidence did the lower courts use to grant Summary Judgment to Appellees?”
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not address them again. See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986) (initial
determination of questions of law generally govern case throughout subsequent stages under
“law of the case” doctrine). Moreover, the judgment and record before us involves the forcible
detainer action and not the previous summary judgment proceeding.
Construing her remaining arguments liberally, Phillips contends the evidence is factually
insufficient to support Fannie Mae’s compliance with the notice requirements of section 24.005
of the Texas Property Code, and Fannie Mae used fraudulent measures to foreclose on the
Property.
When a trial court does not issue findings of fact and conclusions of law after a bench
trial, all facts necessary to support the judgment and supported by evidence are implied. BMC
Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). When the appellate
record includes the reporter’s and clerk’s record, as is the case here, these implied findings are
not conclusive and may be challenged on appeal for factual sufficiency. Id. In reviewing factual
sufficiency, we consider all the evidence in a neutral light and will set aside the judgment only if
it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
The only issue in a forcible detainer action is which party has the right to immediate
possession of the property. Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 471 (Tex.
App.—Dallas 2010, pet. dism’d w.o.j.). Whether the sale of the property under a deed of trust is
invalid may not be determined in a forcible detainer and must be brought in a separate suit. Id.
To prevail and obtain possession in its forcible detainer action, the law required Fannie
Mae to show: (1) the substitute trustee conveyed the property by deed to Fannie Mae after the
foreclosure sale; (2) Phillips became a tenant-at-sufferance when the property was sold under the
deed of trust; (3) Fannie Mae gave proper notice to Phillips requiring them to vacate the
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premises; and (4) Phillips refused to vacate the premises. TEX. PROP. CODE ANN.
§§ 24.002(a)(2), (b), 24.005; see also U.S. Bank Nat’l Ass’n v. Freeney, 266 S.W.3d 623, 625
(Tex. App.—Dallas 2008, no pet.). Based on the unobjected-to exhibits Fannie Mae introduced
at trial, Fannie Mae established its right to immediate possession of the property. See Shutter,
318 S.W.3d at 471 (establishing right to possession by presenting substitute trustee’s deed, deed
of trust showing tenant-at-sufferance status, and notice to vacate property). Phillips did not
present any contrary evidence. To the extent Phillips complains about lack of notice or fraud,
any such alleged errors are not relevant in an eviction suit. See Booth v. Kondaur Capital Corp.,
No. 01-16-00188-CV, 2017 WL 444444, at *1 (Tex. App.—Houston [1st Dist.] Feb. 2, 2017, no
pet.) (mem. op.) (lack of notice not relevant to an eviction suit). Moreover, she has not
supported her fraud allegations with citations to any evidence in the record and our review of the
record has found no such evidence other than her conclusory statements. Accordingly, the
evidence is factually sufficient to support the trial court’s judgment.
Conclusion
The judgment of the trial court is affirmed.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
161354F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
AGNES PHILLIPS, Appellant On Appeal from the County Court at Law
No. 2, Dallas County, Texas
No. 05-16-01354-CV V. Trial Court Cause No. CC-16-04279-B.
Opinion delivered by Justice Bridges.
FEDERAL NATIONAL MORTGAGE Justices Myers and Schenck participating.
ASSOCIATION, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee FEDERAL NATIONAL MORTGAGE ASSOCIATION
recover its costs of this appeal from appellant AGNES PHILLIPS.
Judgment entered January 17, 2018.
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