Lance A. Fleming and All Other Occupants v. Fannie Mae A/K/A Federal National Mortgage Association ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00445-CV
LANCE A. FLEMING AND ALL APPELLANT
OTHER OCCUPANTS
V.
FANNIE MAE A/K/A FEDERAL APPELLEE
NATIONAL MORTGAGE
ASSOCIATION
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FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Lance A. Fleming and All Other Occupants (Fleming) appeal the
trial court‘s judgment awarding possession of real estate to Appellee Fannie Mae
a/k/a Federal National Mortgage Association. In three issues, Fleming argues
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See Tex. R. App. P. 47.4.
that the trial court erred by rendering judgment for Fannie Mae because
(1) Fannie Mae‘s pleading is invalid, (2) a business records affidavit tendered to
the trial court failed to meet the requirements of the rules of evidence, and (3) the
substitute trustee‘s deed tendered to the trial court was insufficient to support a
prima facie claim of title. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
In 2006, Fleming executed a deed of trust that granted Carteret Mortgage
Corp Main Branch a security interest in real estate located at 2100 York Drive,
Fort Worth, Texas 76134 (the property). The deed of trust included the following
provision:
If the Property is sold pursuant to this Section 22, [Fleming] or any
person holding possession of the Property through [Fleming] shall
immediately surrender possession of the Property to the purchaser
at that sale. If possession is not surrendered, [Fleming] or such
person shall be a tenant at sufferance and may be removed by writ
of possession or other court proceeding.
Mortgage Electronic Registration Systems, Inc., as nominee for Carteret
Mortgage Corp., subsequently assigned all of its right, title, and interest in the
mortgage executed by Fleming to Central Mortgage Company. Fleming
defaulted under the terms of the deed of trust, and Central Mortgage Company
appointed a substitute trustee to conduct a foreclosure sale of the property.
Fannie Mae purchased the property in February 2009 and subsequently sent a
notice to Fleming demanding that he vacate the property. It is undisputed that
Fleming did not vacate the property.
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In July 2009, Fannie Mae filed an action for forcible detainer in the justice
court against Fleming, alleging that Fleming was in wrongful possession of the
property since the date of the foreclosure sale. The justice court signed a
judgment in favor of Fannie Mae, and Fleming appealed to the county court at
law. The county court denied Fleming‘s plea in abatement, which challenged the
validity of Fannie Mae‘s pleading on the ground that the petition was not properly
sworn, and found that Fannie Mae was entitled to possession of the property.
The county court denied Fleming‘s motion for new trial, and this appeal followed.
III. PLEADING AND PLEA IN ABATEMENT
In the first issue, Fleming argues that the trial court erred by rendering
judgment for Fannie Mae because Fannie Mae‘s amended petition ―was not a
valid pleading which even required [Fleming‘s] answer.‖ Fleming contends that
the affidavit attached to Fannie Mae‘s amended petition did not meet the
requirement of rules of civil procedure 739 and 93 that a petition for forcible
detainer be sworn because the attorney who signed the amended petition stated,
―I have read the foregoing [petition] and to the best of my personal knowledge,
the facts stated therein are true and correct.‖ [Emphasis added.] Fleming
argues that this alleged defect, which was raised in the plea in abatement and
ruled on prior to trial, is ―jurisdictional and may be raised at any time.‖
Two of our sister courts have recently addressed this identical issue and
held that a defective verification did not deprive the county court of jurisdiction to
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hear the forcible detainer action. See Shutter v. Wells Fargo Bank, N.A., 318
S.W.3d 467, 469 (Tex. App.—Dallas 2010, pet. filed); Reagan v. NPOT Partners
I, L.P., No. 06-08-00071-CV, 2009 WL 763565, at *1–3 (Tex. App.—Texarkana
Mar. 25, 2009, pet. dism‘d w.o.j.) (mem. op.). We agree with the reasoning and
conclusions reached by these courts. Accordingly, assuming that the verification
was defective, we hold that, to the extent Fleming raises a jurisdictional
challenge to the trial court‘s judgment in favor of Fannie Mae, such a challenge is
without merit. See Shutter, 318 S.W.3d at 469; Reagan, 2009 WL 763565, at *2.
To the extent Fleming challenges the trial court‘s denial of his plea in
abatement, we review a trial court‘s ruling granting or denying a plea in
abatement for an abuse of discretion. Wyatt v. Shaw Plumbing Co., 760 S.W.2d
245, 248 (Tex. 1988). The trial court abuses its discretion when it acts in an
unreasonable and arbitrary manner, or without reference to any guiding rules or
principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985), cert. denied, 476 U.S. 1159 (1986). A plea in abatement challenges
the plaintiff‘s pleading by asserting that facts outside the pleadings prevent the
suit from going forward until the problem can be cured. Morgan v. City of Alvin,
175 S.W.3d 408, 421 (Tex. App.—Houston [1st Dist.] 2004, no pet.).
Like the appellant in Shutter, in this case, Fleming did not allege or explain
how the alleged defective verification was an impediment to the trial court‘s
determination of immediate possession, nor has Fleming offered any analysis
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demonstrating that he was harmed by the trial court‘s alleged erroneous denial of
the plea in abatement. See Shutter, 318 S.W.3d at 470. Accordingly, we
overrule Fleming‘s first issue.
IV. BUSINESS RECORDS AFFIDAVIT
In the second issue, Fleming argues that the trial court ―erred in granting
judgment‖ because the business records affidavit that Fannie Mae tendered to
the county court did not meet the requirements of rules of evidence 803(6),
803(7), and 902(10) for establishing the admissibility of the documents
evidencing the foreclosure sale and notices to vacate (Plaintiff‘s Exhibits 1-A,
general warranty deed with vendor‘s lien; 1-B, deed of trust; 1-C, assignment of
mortgage; 1-D, substitute trustee‘s deed; and 1-E, notices to vacate). He
complains that Fannie Mae ―does not offer an affiant who can testify of personal
knowledge of [Fannie Mae‘s] record-keeping, nor of [Fannie Mae‘s] law firm‘s
record-keeping, but of a third-party contractor of the law firm‘s record keeping.‖
We initially observe that Fleming agreed at trial that Plaintiff‘s Exhibits 1-A,
1-B, 1-C, and 1-D ―would be admissible as public records.‖ We construe
Fleming‘s agreement as a concession that those exhibits were self-authenticated
certified copies of public records under rule 902(4) and admissible as an
exception to the hearsay rule under rule 803(8). See Tex. R. Evid. 803(8),
902(4).
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The business records exception provides that evidence meeting certain
criteria should not be excluded under the hearsay rule. See Tex. R. Evid. 803(6).
The four requirements are (1) the records were made and kept in the course of a
regularly conducted business activity, (2) it was the regular practice of the
business activity to make the records, (3) the records were made at or near the
time of the event that they record, and (4) the records were made by a person
with knowledge who was acting in the regular course of business. In re E.A.K.,
192 S.W.3d 133, 141 (Tex. App.—Houston [14th Dist.] 2006. pet. denied). The
prerequisites of rule 803(6) may be provided by the custodian of records or a
―qualified witness.‖ Tex. R. Evid. 803(6). Rule 803(6) does not require a witness
who is laying the predicate for introduction of a business record to be the creator
of the document or even an employee of the company keeping the subject
record. Houston Shell & Concrete Co. v. Kingsley Constructors, Inc., 987
S.W.2d 184, 186 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Rather, an
affiant may qualify as a ―qualified witness‖ by demonstrating personal knowledge
of the facts contained within the business record. Id. (citing Duncan Dev., Inc. v.
Haney, 634 S.W.2d 811, 813–14 (Tex. 1982)). ―Determining admissibility of
business records affidavits involves deciding whether ‗the source of information
or the method or circumstances of preparation indicate a lack of
trustworthiness.‘‖ Simien v. Unifund CCR Partners, 321 S.W.3d 235, 246 (Tex.
App.—Houston [1st Dist.] 2010, no pet.) (citing Tex. R. Evid. 803(6)). The
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admission or exclusion of evidence rests within the sound discretion of the trial
court. State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001).
Fannie Mae submitted the business records affidavit of William Attmore to
establish the admissibility of, among other things, Plaintiff‘s Exhibit 1-E, the
notices to vacate the property. The affidavit states in relevant part the following:
My name is William Attmore, I am over the age of eighteen
(18) years, have never been convicted of a felony, and have
personal knowledge of the facts contained in this Affidavit and they
are true and correct to the best of my knowledge and belief.
I am employed by NATIONAL DEFAULT EXCHANGE, L.P.,
an affiliated service provider for the law firm of BARRETT DAFFIN
FRAPPIER TURNER AND ENGEL, LLP, (hereinafter ―BDFTE‖),
attorneys for Plaintiff, FANNIE MAE ALSO KNOWN AS FEDERAL
NATIONAL MORTGAGE ASSOCIATION as a paralegal and I am
authorized to make this Affidavit on behalf of BDFTE as attorneys for
Plaintiff herein. I have care, custody and control of all records
concerning the non-judicial foreclosure and forcible entry and
detainer proceedings against [Fleming]; hereinafter ―Defendant(s)‖.
I am the custodian of the records of BDFTE, attorneys for
Plaintiff, FANNIE MAE ALSO KNOWN AS FEDERAL NATIONAL
MORTGAGE ASSOCIATION. Attached hereto are thirty-four (34)
pages of records from the foreclosure and forcible entry and detainer
file against Defendants. The said thirty-four (34) pages of records
are kept by Plaintiff in the regular course of business, and it was in
the regular course of business for an employee or representative of
BDFTE, with knowledge of the act, event, condition, opinion, or
diagnosis, recorded to make the record or to transmit information
thereof to be included in such record; and the record was made at or
near the time or reasonably soon thereafter. The records attached
hereto are the originals or exact duplicates of the original.
On APRIL 9, 2009, a Notice to Vacate was forwarded by
certified mail, return receipt requested, and regular mail, postage
prepaid, to [Fleming], demanding that the Defendants vacate the
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property within three (3) days or forcible detainer proceedings would
be commenced against them and all other occupants.
The affidavit thus demonstrates that Attmore is the custodian of records for
the law firm that represented Fannie Mae at trial, and it tracks the requirements
of rule 803(6). See Tex. R. Evid. 803(6). Fleming does not challenge the
trustworthiness of the business records covered by the affidavit. Attmore‘s
affidavit contains information upon which the trial court could have reasonably
concluded that Attmore was qualified to testify about the matters contained in the
business record. See Houston Shell & Concrete Co., 987 S.W.2d at 186.
Therefore, we hold that the trial court did not abuse its discretion by concluding
that Attmore‘s affidavit met the requirements for establishing the admissibility of
and by admitting Plaintiff‘s Exhibit 1-E under the business records exception. We
overrule Fleming‘s second issue.
V. INSUFFICIENT SUBSTITUTE TRUSTEE’S DEED
In the third issue, Fleming argues that the substitute trustee‘s deed
tendered into evidence was insufficient to support a prima facie claim of title
because paragraphs four and five of the affidavit accompanying the deed, which
address notice of the default and military status, were not based on the affiant‘s
personal knowledge but were instead made ―[t]o the best of [the affiant‘s]
knowledge and belief.‖ Fleming contends that this defect resulted in Fannie
Mae‘s noncompliance with property code section 51.002(e), which provides that
in establishing that the debtor was served with notice of foreclosure, ―[t]he
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affidavit of a person knowledgeable of the facts to the effect that service was
completed is prima facie evidence of service.‖ Tex. Prop. Code Ann. § 51.002(e)
(Vernon Supp. 2010).
A forcible detainer action is the procedure by which the right to immediate
possession of real property is determined. See Cattin v. Highpoint Village
Apartments, 26 S.W.3d 737, 738–39 (Tex. App.—Fort Worth 2000, pet. dism‘d
w.o.j.). Forcible detainer actions are intended to be a summary, speedy, and
inexpensive remedy for resolving the question of who is entitled to immediate
possession of real property. Id. Rule of civil procedure 746 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. Thus, to prevail in a forcible
detainer action, a plaintiff is not required to prove title but is only required to show
sufficient evidence of ownership to demonstrate a superior right to immediate
possession. Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 433 (Tex. App.—
Houston [1st Dist.] 2007, no pet.). Consequently, whether the sale of property
under a deed of trust is invalid may not be determined in a forcible detainer and
must be brought in a separate suit. Williams v. Bank of N.Y. Mellon, 315 S.W.3d
925, 927 (Tex. App.—Dallas 2010, no pet.).
Fannie Mae demonstrated its right to possession of the property—the
substitute trustee‘s deed evidenced Fannie Mae‘s purchase of the property; the
deed of trust evidenced Fleming‘s status as a tenant at sufferance; and the
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notices to vacate evidenced Fannie Mae‘s notification to Fleming that he was a
tenant at sufferance and that he must vacate the property. Any defects in the
foreclosure process or with Fannie Mae‘s title to the property may not be
considered in a forcible detainer action. See Shutter, 318 S.W.3d at 471;
Williams, 315 S.W.3d at 927 (citing Scott v. Hewitt, 127 Tex. 31, 35, 90 S.W.2d
816, 818–19 (1936)). We overrule Fleming‘s third issue.
VI. CONCLUSION
Having overruled all of Fleming‘s issues, we affirm the trial court‘s
judgment.
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.
DELIVERED: November 24, 2010
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