McDaniel, Jackqueline and All Other Occupants v. HSBC Bank USA, NA ( 2013 )

AFFIRM; Opinion Filed February 6, 2013.
In The
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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.
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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.
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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
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JUDGMENT
JACKQUELINE McDANIEL, Appellant On Appeal from the County Court at Law
No. 3, Dallas County, Texas
No, 05-1 1-00238-CV V. Trial Court Cause No. CC-10-08 157-C.
Opinion delivered by Justice Myers.
HSBC BANK USA, NA, AS TRUSTEE ON Justices Lang-Miers and Lewis participating.
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
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