While we’ve skipped blogging about most of the Dallas Court of Appeals’ forcible detainer cases — long story short, lenders routinely evict residents when the mortgage hasn’t been paid — this one is not exactly routine. The trial court awarded possession of a Burger King restaurant to the landlord, Huge American Real Estate after the tenant remodeled the restaurant without obtaining Huge American’s consent. The Court of Appeals sustained the trial court’s finding that the remodel was a material breach of the lease agreement, holding that Fritz Management’s continued payment of rent did not obviate the contractual requirement of consent to any renovations.
Fritz Mgmt., LLC v. Huge Am. Real Estate, Inc., No. 05-14-00681-CV
The plaintiffs defaulted on their mortgage and were then removed from the house via a forcible detainer action filed in Collin County. They appealed, arguing that the trial court erred by admitting as a business record several notices of eviction sent to them in the mail. The plaintiffs’ primary argument was that the witness who laid the foundation through an affidavit was not qualified. The Dallas Court of Appeals disagreed, noting that “Rule 803(6) does not . . . require a witness 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 record.” All that is required is that he/she have personal knowledge of the facts contained within the business record.
Singha v. FNMA
Victor Enterprise, Inc. filed and won a forcible detainer action to collect rent from his tenant, Clifford Holland, for August 2009. While that action was appealed by Holland, VEI filed another forcible detainer to collect rent for December 2009, which he also won, but the county court signed an order suspending execution of the writ of possession. VEI then filed a third forcible detainer action to collect rent for January 2010, which he also won, but the county court enjoined VEI from “initiating, prosecuting, or executing any litigation, action or writ that seeks possession of or eviction of the defendant form his residence.” In the meantime, Holland sought (and obtained) a temporary restraining order in county court requiring VEI to cease prosecuting actions against Holland and to prohibit any sheriff or constable from executing any writ against Holland. On appeal, the Court granted VEI’s request for mandamus, noting that “the county court lacks jurisdiction to interfere with the enforcement of the justice court’s unappealed judgments.” It also found that, given the history of this case, “the writ will issue instanter.”
In re Victor Enters., Inc.
In this forcible detainer action, the trial court dismissed American Homes 4 Rent’s (AH4R) attempt to evict the defendant because AH4R could not prove that it had title to the property at issue. Specifically, the trial court based its dismissal on the defendant’s argument that she had filed bankruptcy the day before AH4R bought the property and thus its purchase was void because it had violated the automatic stay. The Court of Appeals reversed the trial court’s dismissal, because 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.”
American Homes 4 Rent Props. One LLC v. Ibarra
The Court of Appeals has once again reiterated that the sole issue in a forcible detainer case is the right to immediate possession of the property. Both the justice court and the county court at law sided with Wells Fargo, which had purchased the home in foreclosure. On appeal, the borrowers argued that Wells Fargo had not shown itself to be an assignee of the original deed of trust, and that notice of the foreclosure sale had not been properly recorded. Because those issues alleged defects in the bank’s title and the foreclosure process, and not the right to immediate possession, they could not be addressed in a forcible detainer action. The Court of Appeals therefore affirmed the lower courts’ rulings awarding possession to Wells Fargo.
Noye v. Wells Fargo Bank, N.A., No. 05-12-00997-CV
As the Court held in a similar case two weeks ago, the recitals in a trustee’s deed fall into an exception to the hearsay rule and should be admitted into evidence because the recitals are “relevant to the purpose of the document.”
CitiMortgage v Sczepanik
In this forcible detainer action, the defendant disputed the validity of the foreclosure sale in light of an automatic bankruptcy stay that had been issued. The Court noted, however, that under Texas Rule of Civil Procedure 746, the only issue that may be adjudicated in a forcible detainer action is the right to actual possession. Accordingly, because the validity of of the foreclosure sale in light of a bankruptcy stay goes to the merits of the title, the Court held that this issue may not be raised in a forcible detainer action and rejected the defendant’s argument.
Stonebreaker v. FNMA
The court affirmed a judgment in favor of FNMA in this forcible detainer action. After Henning defaulted on a promissory note, FNMA purchased the property in foreclosure and demanded that Henning vacate. FNMA filed a forcible detainer proceeding and received a judgment awarding it possession.
After losing on appeal to the county court at law, Henning appealed to the district court arguing that the lower courts lacked jurisdiction because this was a suit over title to land. The court noted that a forcible detainer action only determines immediate right to possession. Further, a separate lawsuit to determine title does not deprive a court of jurisdiction over a forcible detainer action unless determining who has the right to immediate possession necessarily requires resolution of the title dispute. Because it was not necessary for the trial court to determine whether the foreclosure was valid and to resolve the title dispute before awarding possession to FNMA, it had jurisdiction.
Henning v. Federal National Mortgage Association, No. 05-12-00726-CV
The court reversed a county court’s judgment in favor of a resident in a forcible detainer action and rendered judgment of possession in favor of the bank. After acquiring the property at a foreclosure sale and attempting to remove Mr. Carman, OneWest file a forcible detainer action. At trial OneWest provided the deed of trust, the substitute trustee’s deed, and notices to vacate the property that were served on Carman. The trial court found that OneWest did not have the right to possess, but noted that it could go through the process again with the correct paperwork. On appeal, the court held that OneWest had a claim to immediate possession of the property based on the deed of trust, which stated that Carman would become a tenant-at-sufferance in the case of a foreclosure and that OneWest could remove Carman from the property. This served as an independent basis on which the trial court should have determined that OneWest was entitled to immediate possession of the property.
OneWest Bank v. Carman, No. 05-12-00100-CV
The court reversed and remanded a forcible-detainer and unpaid rent default judgment. The tenants moved from the landlord’s property prior to the action, which the landlord won in the justice court. The tenants appealed to the county court, but failed to appear for trial and court granted the landlord all of its requested relief. In a motion for new trial and attached affidavits, the tenants asserted that they received no notice of the trial setting. Despite the fact that the tenants had included the new, correct address in their pleading, the court sent their notice to their old address at the landlord’s apartment complex. The tenants failed to set a hearing on the motion, however, which was then overruled by operation of law.
On appeal, the court held that the tenants established lack of notice of the trial setting, and thus that the default judgment on the landlord’s action for unpaid rent and attorney’s fees should be set aside and the case remanded for trial. The court also held that the landlord’s forcible-detainer action was moot because possession was already relinquished.
Batie v. Cimarron, No. 05-11-00024-CV