Daniel Herrera and Imelda Herrera, and/or All Occupants of 316 Alamo Road, Lockhart, Texas 78644 v. Bank of America, N.A. ( 2016 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-15-00081-CV
DANIEL HERRERA AND IMELDA HERRERA, AND/OR ALL OCCUPANTS OF 316
ALAMO ROAD, LOCKHART, TEXAS 78644, Appellants
V.
BANK OF AMERICA, N.A., Appellee
On Appeal from the County Court at Law
Caldwell County, Texas
Trial Court No. 5965
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
After Daniel and Imelda Herrera defaulted in the payment of the loan secured by the
purchase money deed of trust lien on their residence in Lockhart, a substitute trustee’s sale to effect
foreclosure was conducted, and Bank of America, N.A., was the purchaser at that foreclosure sale.
After the Herreras then failed to vacate the premises, Bank of America brought a forcible detainer
action in a justice court where the property was located. The justice court entered judgment
granting possession of the property to Bank of America, and the Herreras appealed to the County
Court at Law of Caldwell County.1 After a short hearing to the court, a judgment granting
possession of the property to Bank of America was entered. It is that judgment that the Herreras
have appealed, wherein they (1) challenge the trial court’s jurisdiction, alleging that there was a
substantial question involving Bank of America’s title, (2) claim that the trial court erred in
admitting a business records affidavit which was a basis for Bank of America’s claim, and
(3) assert that the trial court erred in refusing to consider the Herreras’ challenge to the validity of
the foreclosure procedure.2 We find that (1) the trial court had jurisdiction over the matter before
1
Originally appealed to the Third Court of Appeals, this case was transferred to this Court by the Texas Supreme Court
pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware of
any conflict between precedent of the Third Court of Appeals and that of this Court on any relevant issue. See TEX.
R. APP. P. 41.3.
2
The Herreras raise both of these issues under a single point of error complaining of the court’s denial of their
evidentiary objections. A multifarious issue is one that raises more than one specific ground of error. In re S.K.A.,
236 S.W.3d 875, 894 (Tex. App.—Texarkana 2007, pet. denied). We have repeatedly warned litigants to refrain from
raising multifarious points of error. See, e.g., In re Guardianship of Moon, 216 S.W.3d 506, 508 (Tex. App.—
Texarkana 2007, no pet.); Newby v. State, 169 S.W.3d 413, 414 (Tex. App.—Texarkana 2005, pet. ref’d). Failure to
heed our warnings runs the risk of having any multifarious issue(s) summarily overruled. Newby, 169 S.W.3d at 414;
Harris v. State, 133 S.W.3d 760, 764 n.3 (Tex. App.—Texarkana 2004, pet. ref’d); Parra v. State, 935 S.W.2d 862,
875 (Tex. App.—Texarkana 1996, pet. ref’d). In the interest of addressing substantive issues, we will not take the
opportunity in this case to overrule this point of error on the basis of it being multifarious.
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it, (2) the Herreras waived any error related to the admission of the business records affidavit, and
(3) the trial court properly refused to consider any issue related to alleged irregularities in the
foreclosure procedure. Accordingly, we affirm the judgment of the trial court.
The Herreras executed a first lien deed of trust on December 28, 2007, to secure a purchase
money note in the amount of $201,832.00. After they defaulted on the payments prescribed by
the note, a notice of a substitute trustee’s sale to foreclose under the terms of the deed of trust was
issued, and Bank of America purchased the property at the ensuing August 5, 2014, sale. Under
the terms of the deed of trust, after the foreclosure sale, the Herreras became only tenants at
sufferance of the purchaser at the foreclosure sale. As tenants at sufferance, the Herreras were
required to surrender possession of the property to the purchaser at the foreclosure sale upon
demand by the purchaser. Owners can employ a writ of possession to eject tenants at sufferance
who refuse to vacate on demand.
On December 3, 2014, Bank of America sent letters to the Herreras pursuant to Section
24.005 of the Texas Property Code, demanding that they vacate the property within three days.
After they failed to vacate the property, Bank of America filed an action in forcible detainer to
compel their removal.
I. The Trial Court Had Jurisdiction to Adjudicate the Forcible Detainer Action
In their first point of error, the Herreras challenge the jurisdiction of the trial court, arguing
that since the lender named in the deed of trust as it was signed is a different entity from Bank of
America, a substantial question exists regarding Bank of America’s power to have caused the
foreclosure sale to take place. They further argue that since the trustee named in the deed of trust
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is not the same as the substitute trustee and there is no evidence showing how the substitute trustee,
Louise Graham, obtained her powers to foreclose the deed of trust, a substantial question was
raised regarding Bank of America’s title to the property. The Herreras argue that it was necessary
for the trial court to determine the title issue as a predicate to determining the right of possession.
Reasoning further, the Herreras maintain that since a court is prohibited from adjudicating title in
a suit in forcible detainer, the trial court had no jurisdiction to determine that Bank of America had
the right of possession of the property.
A justice court has original jurisdiction over suits in forcible detainer but specifically does
not have jurisdiction over suits requiring a determination of title to land. TEX. GOV’T CODE ANN.
§ 27.031(a)(2), (b)(4) (West Supp. 2015). Further, in an appeal from the justice court, the
jurisdiction of a county court at law “is confined to the jurisdictional limits of the justice court,
and the county court has no jurisdiction over an appeal unless the justice court had jurisdiction.”
Rice v. Pinney, 51 S.W.3d 705, 708 (Tex. App.—Dallas 2001, no pet.) (citing Crumpton v. Stevens,
936 S.W.2d 473, 476 (Tex. App.—Fort Worth 1996, no writ)); see Wade v. Household Fin. Corp.
III, No. 06-15-00074-CV, 2016 WL 741872, at *3 (Tex. App.—Texarkana Feb. 25, 2016, no pet.)
(mem. op.). A forcible detainer action “determine[s] the right to immediate possession of real
property where there is no unlawful entry.” Reardean v. Fed. Home Loan Mortg. Corp., No. 03-
12-00562-CV, 2013 WL 4487523, at *1 (Tex. App.—Austin Aug. 14, 2013, no pet.) (mem. op.)
(citing Williams v. Bank of New York Mellon, 315 S.W.3d 925, 926 (Tex. App.—Dallas 2010, no
pet.)); see Wade, 2016 WL 741872, at *3 (citing Rice, 51 S.W.3d at 709). It “is designed to be a
quick, simple, and inexpensive means to determine who is entitled to immediate possession to
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property without resorting to an action on the title.” Wade, 2016 WL 741872, at *3 (citing
McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex. 1984)); see Scott v. Hewitt, 90 S.W.2d 816,
818 (Tex. 1936). A forcible detainer action determines the superior right of possession “without
resorting to action upon the title.” Wade, 2016 WL 741872, at *3 (quoting Rice, 51 S.W.3d at 710
(quoting Scott, 90 S.W.2d at 818–19)). However, if the justice court or county court must
necessarily resolve questions of title in order to determine the right to immediate possession, it has
no jurisdiction to adjudicate the forcible detainer action. Reardean, 2013 WL 4487523, at *2;
Rice, 51 S.W.3d at 709, 713. Therefore, to determine whether the trial court had jurisdiction, we
must examine whether it was necessary for the trial court to determine the title to the land.
In this case, the Herreras assert that there are fact questions regarding the foreclosure
process and the question of Bank of America’s title needed to be resolved before the trial court
could determine whether the Herreras or Bank of America possessed the superior right of
possession. Generally, irregularities in the foreclosure process or deficiencies in the purchaser’s
title “may not be considered in a forcible detainer action.” Schlichting v. Lehman Bros. Bank FSB,
346 S.W.3d 196, 199 (Tex. App.—Dallas 2011, pet. dism’d). Such irregularities and deficiencies
“must be pursued, if at all, in a separate suit for wrongful foreclosure or to set aside the substitute
trustee’s deed.” Id. (citing Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 471 (Tex. App.—
Dallas 2010, pet. dism’d w.o.j.)). Such suits may be pursued in the district court concurrently with
the forcible detainer action in justice court “to resolve issues of title and immediate possession,
respectively.” Rice, 51 S.W.3d at 710. “[I]t is only when the justice court or county court must
5
determine title issues that it is without jurisdiction to adjudicate a forcible detainer case.” Id. at
713.
The Herreras argue that Bank of America’s failure to present evidence showing it was the
successor to the original lienholder and that Graham had been properly named substitute trustee
under the deed of trust raised a title question that deprived the trial court of jurisdiction. The Third
Court of Appeals was faced with a similar question in Reardean. In that case, the Reardeans
executed a deed of trust in favor of Northland Funding Group, LP, d/b/a Capital Mortgage
Services. As in this case, the deed of trust provided that if the property subject to the deed of trust
was sold at a nonjudicial foreclosure sale, the Reardeans must immediately surrender possession
of the property to the purchaser on demand, and that if they did not, they would become tenants at
sufferance of the owner and could be removed by writ of possession. After the Reardeans
defaulted on their loan, CitiMortgage, Inc., purchased the property at the foreclosure sale and
received a substitute trustee’s deed. CitiMortgage later conveyed the property to Federal Home
Loan Mortgage Corporation (Federal Home), which instituted a forcible detainer action against
the Reardeans. After the justice court and, on appeal, the county court, granted judgment to Federal
Home, the Reardeans appealed. Reardean, 2013 WL 4487523, at *1. On appeal, the Reardeans
argued that Federal Home had failed to present evidence that showed an unbroken chain of title
from Northland Funding Group to Federal Home, which deprived the trial court of jurisdiction.
Id. at *2.
In rejecting the Reardeans’ argument, the Austin Court of Appeals pointed out that
“[w]here a foreclosure pursuant to a deed of trust establishes a landlord and tenant-at-sufferance
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relationship between the parties,[3] the trial court has an independent basis to determine the issue
of immediate possession without resolving the issue of title to the property.” Id. at *3 (citing
Schlichting, 346 S.W.3d at 199). Since “foreclosure pursuant to the deed of trust created a landlord
and tenant-at-sufferance relationship between Federal Home and the Reardeans,” the court held
that “it was not necessary for the trial court to resolve the title dispute to determine the right of
immediate possession.” Id. (citing Schlichting, 346 S.W.3d at 199); see also Haddox v. Fed. Nat’l
Mortg. Ass’n, No. 03-15-00350-CV, 2016 WL 2659695, at *4 (Tex. App.—Austin May 6, 2016,
no pet. h.) (mem. op.) (when deed of trust creates landlord and tenant-at-sufferance relationship,
trial court has independent basis to determine immediate possession without resolving title issues);
Jaimes v. Fed. Nat’l Mortg. Ass’n, No. 03-13-00290-CV, 2013 WL 7809741, at *4 (Tex. App.—
Austin Dec. 4, 2013, no pet.) (mem. op.) (same); Stephens v. Fed. Home Loan Mortg. Corp.,
No. 02-10-00251-CV, 2011 WL 1532384, at *2 (Tex. App.—Fort Worth Apr. 21, 2011, no pet.)
(mem. op.) (holding purchaser not required to “connect the dots” between original lender and
mortgage servicer regarding title; substitute trustee’s deed evidenced Federal Home purchased
property following appellant’s default); Deubler v. Bank of New York Mellon, No. 02-10-00125-
CV, 2011 WL 1331540, at *2 (Tex. App.—Fort Worth Apr. 7, 2011, no pet.) (mem. op.) (holding
purchaser at foreclosure sale not required to present evidence establishing link between deed of
trust and substitute trustee’s deed to establish superior right to possession).
3
“A forcible detainer action will lie when a person in possession of real property refuses to surrender possession on
demand if the person is a tenant at will or by sufferance, ‘including an occupant at the time of foreclosure of a lien
superior to the tenant’s lease.’” Reardean, 2013 WL 4487523, at *1 (quoting TEX. PROP. CODE ANN. § 24.002(a)).
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Similarly, in this case, Bank of America introduced the deed of trust which provided that a
landlord and tenant at sufferance relationship existed between the grantor of the deed of trust and
any purchaser at a foreclosure sale conducted under that deed of trust. It also introduced a
substitute trustee’s deed establishing that it had purchased the property at the foreclosure sale.
Thus, the evidence showed that Bank of America (as purchaser at a foreclosure sale) was in a
landlord and tenant at sufferance relationship with the Herreras (the grantors in the deed of trust).
This gave the trial court an independent basis to determine that Bank of America had the superior
right of immediate possession without resolving the title issue. Hence, it was not necessary for the
trial court to resolve the title issue before determining the right of immediate possession. Due to
this, the trial court had jurisdiction to adjudicate the forcible detainer action.
We overrule the Herreras’ first point error.
II. Any Error in Admitting the Business Records Affidavit Was Not Preserved
In their next point of error, the Herreras assert that the trial court erred in admitting a
business records affidavit that had previously been filed pursuant to Rule 901(10) of the Texas
Rules of Evidence. See TEX. R. EVID. 901(10). On appeal, they argue that the business records
affidavit was not served on their attorney of record, as required by Rule 901, and, therefore, the
trial court erred in admitting the same. See TEX. R. EVID. 901(10)(A); TEX. R. CIV. P. 21(a)
(requiring service on a party’s attorney of record). However, at trial, the Herreras told the trial
court that they were not sure if the affidavit had been served on them and then stated that they only
8
objected to the admission of the deed of trust, substitute trustee’s deed, and notice of substitute
trustee’s sale attached to the affidavit since they were not originals or certified copies.4
In order to preserve an error for appeal, the complaint must be made at the trial court by a
timely request, objection, or motion that states the grounds with specificity, and the trial court must
make a ruling, or refuse to rule, on the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1),
(2). If the complaint on appeal does not comport with the objection made at trial, nothing is
preserved for appellate review. In re S.A.G., 403 S.W.3d 907, 913 (Tex. App.—Texarkana 2013,
pet. denied); see also Lakeway Land Co. v. Kizer, 796 S.W.2d 820, 825 (Tex. App.—Austin 1990,
writ denied). Since the Herreras’ complaint on appeal does not comport with their objection made
at trial, they have preserved nothing for our review. We overrule this point of error.5
III. The Trial Court Did Not Err in Refusing to Consider Issues Related to the
Foreclosure
In their final point of error, the Herreras assert that the trial court erred in not considering
issues related to what they allege was a wrongful foreclosure. They argue that there is no evidence
either that Bank of America had the authority to appoint a substitute trustee or direct the substitute
trustee or that the substitute trustee had the authority to conduct the foreclosure. They further
4
Certified copies of the deed of trust and the substitute trustee’s deed, with notice of substitute trustee’s sale attached,
were subsequently admitted without objection.
5
In the summary of argument section of their brief, the Herreras also assert that the court allowed the “three day notice”
into evidence with no proof of authenticity. See TEX. PROP. CODE ANN. § 24.005(a) (West Supp. 2015) (requiring a
three-day written notice to vacate property before filing a forcible detainer action). However, the Herreras made no
objection to the notices to vacate, which were attached to the business records affidavit. Having made no objection
to the notices to vacate at trial, they have preserved nothing for our review. See TEX. R. APP. P. 33.1(a)(1).
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maintain that there was a material breach of the terms of the deed of trust by Bank of America that
excused their performance under the deed of trust and that, therefore, the foreclosure was wrongful.
As previously noted, any irregularities in the foreclosure process or deficiencies in the
purchaser’s title “may not be considered in a forcible detainer action.” Schlichting, 346 S.W.3d at
199. These matters “must be pursued, if at all, in a separate suit for wrongful foreclosure or to set
aside the substitute trustee’s deed.” Id. (citing Shutter, 318 S.W.3d at 471). Since Bank of
America was claiming title as a result of the foreclosure, the Herreras’ allegations of wrongful
foreclosure essentially challenge the validity of Bank of America’s title. Since the trial court could
resolve the issue of the right of immediate possession without resolving matters challenging Bank
of America’s title, it did not err in not considering issues related to an alleged wrongful foreclosure.
We overrule this point of error.
We affirm the judgment of the trial court.
Bailey C. Moseley
Justice
Date Submitted: June 30, 2016
Date Decided: July 7, 2016
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