Yvonne Anderson v. Bayview Loan Servicing,LLC, and Delaware Limited Liability ( 2012 )


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  • Opinion issued October 4, 2012
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-12-00582-CV
    ———————————
    YVONNE ANDERSON, Appellant
    V.
    BAYVIEW LOAN SERVICING, L.L.C., A DELAWARE LIMITED
    LIABILITY COMPANY, Appellee
    On Appeal from the County Civil Court at Law No. 2
    Harris County, Texas
    Trial Court Cause No. 1009889
    MEMORANDUM OPINION
    In this forcible-detainer action, appellant, Yvonne Anderson, appeals from
    the trial court’s judgment of possession in favor of appellee, Bayview Loan
    Servicing, L.L.C., a Delaware Limited Liability Company.1 On July 31, 2012,
    Bayview Loan Servicing filed a motion to dismiss Anderson’s appeal as moot,
    stating that Anderson failed to file a supersedeas bond, a writ of possession was
    issued, and Bayview Loan Servicing took possession of the subject property on
    July 19, 2012. See TEX. PROP. CODE ANN. § 24.007 (West Supp. 2011).
    Although the failure to supersede a forcible-detainer judgment does not
    divest an appellant of the right to appeal, an appeal from a forcible-detainer action
    becomes moot if the appellant is no longer in possession of the property, unless the
    appellant holds and asserts “a potentially meritorious claim of right to current,
    actual possession” of the property. Marshall v. Housing Authority of the City of
    San Antonio, 
    198 S.W.3d 782
    , 786–87 (Tex. 2006); see Wilhelm v. Fed. Nat.
    Mortg. Ass’n, 
    349 S.W.3d 766
    , 768 (Tex. App.—Houston [14th Dist.] 2011, no
    pet.); Gallien v. Fed. Home Loan Mortg. Corp., No. 01-07-00075-CV, 
    2008 WL 4670465
    , at *2–4 (Tex. App.—Houston [1st Dist.] Oct. 23, 2008, pet. dism’d
    w.o.j.).
    On August 16, 2012, the Clerk of this Court requested a response from
    Anderson, by August 27, 2012, to Bayview Loan Servicing’s motion to dismiss.
    1
    In her notice of appeal, appellant states that she is appealing “the determination of
    the parties [sic] rights to the real property at issue.” Nevertheless, in a forcible-
    detainer action, “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; see Wilhelm v.
    Fed. Nat. Mortg. Ass’n, 
    349 S.W.3d 766
    , 768–69 (Tex. App.—Houston [14th
    Dist.] 2011, no pet.).
    2
    Anderson has not filed a response and, therefore, has failed to assert a potentially
    meritorious claim of right to current, actual possession of the property.       See
    
    Marshall, 198 S.W.3d at 787
    ; 
    Wilhelm, 349 S.W.3d at 768
    ; Rady v. CitiMortgage,
    Inc., No. 03-11-00734-CV, 
    2012 WL 753128
    , at *1 (Tex. App.—Austin March 9,
    2012, no pet.). Because Anderson is no longer in possession of the property and
    has not asserted a potentially meritorious claim of right to current, actual
    possession, Anderson’s appeal is moot. See 
    Wilhelm, 349 S.W.3d at 769
    .
    Accordingly, we grant appellee’s motion, vacate the county court’s
    judgment, and dismiss the appeal as moot. See 
    Marshall, 198 S.W.3d at 785
    , 787,
    790; 
    Wilhelm, 349 S.W.3d at 769
    . We dismiss all other pending motions as moot.
    PER CURIAM
    Panel consists of Justices Jennings, Higley, and Sharp.
    3
    

Document Info

Docket Number: 01-12-00582-CV

Filed Date: 10/4/2012

Precedential Status: Precedential

Modified Date: 10/16/2015