Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Wednesday, April 18, 2012

Eviction Suit after Foreclosure – Does the tenant have any protection, rights?

   
FORCIBLE DETAINER ACTIONS – SUIT FOR POSSESSION OF PROPERTY [not suit over title or to resolve dispute over ownership interests]
   
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. App.-Dallas 2001, no pet.). It is intended to be a speedy, simple, and inexpensive means to obtain possession without resort to an action on the title. Scott v. Hewitt, 90 S.W.2d 816, 818-19 (Tex. 1936); Rice, 51 S.W.3d at 709. 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 action but must be brought in a separate suit. Scott, 90 S.W.2d at 818; Rice, 51 S.W.3d at 710 (quoting Scott).
   
The Protecting Tenants at Foreclosure Act of 2009. See Pub. L. No. 111-22, 123 Stat. 1632, sec. 702 provides that, following a foreclosure, the immediate successor in interest pursuant to the foreclosure sale has the right demand that the tenant vacate the residence with ninety days' notice. Id
  
Any defects in the foreclosure process or with appellee's title to the property may not be considered in a forcible detainer action. Shutter, 318 S.W.3d at 471; Williams, 315 S.W.3d at 927.
  
SOURCE: DALLAS COURT OF APPEALS - 05-11-00067-CV – 4/11/12    
  
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Appellee proved its right to possession of the property by

presenting in evidence the substitute trustee's deed, the deed of trust,

and notice to appellant and the other residents of the property to

vacate. The substitute trustee's deed showed appellee purchased the

property in a public auction following Clayton's default under the deed

of trust. The deed of trust required, in the event of foreclosure, that

any person holding possession of the property through the borrower to

surrender possession of the property at the foreclosure sale. The deed

of trust also stated, “If possession is not surrendered, Borrower or

such other person shall be a tenant at sufferance and may be removed by

writ of possession or other court proceeding.” The notice to vacate sent

to appellant required appellant to vacate the premises within three

days, or within ninety days if he was a bona fide tenant as defined

under federal law. When appellee filed this suit, more than ninety days

had passed since it gave appellant notice to vacate. This evidence was

sufficient to establish appellee's right to immediate possession of the

property. See Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 471

(Tex. App.-Dallas 2010, pet. dism'd w.o.j.); Williams v. Bank of N.Y.

Mellon, 315 S.W.3d 925, 927 (Tex. App.-Dallas 2010, no pet.).

In his first issue, appellant contends that because he had a

valid lease agreement, the trial court erred in awarding possession of

the property to appellee. Appellant asserts, “According to the

provisions of the law a tenant may remain on the property [in] question

if he has a valid lease agreement prior to foreclosure on the property.”

Appellant does not state what provisions of the law permit a lessee to

remain in possession after a foreclosure without the purchaser's

permission. At the trial court hearing, appellant argued he was entitled

to possess the property under the Protecting Tenants at Foreclosure Act

of 2009. See Pub. L. No. 111-22, 123 Stat. 1632, sec. 702. The statute

provides that, following a foreclosure, the immediate successor in

interest pursuant to the foreclosure sale has the right demand that the

tenant vacate the residence with ninety days' notice. Id. Appellee was

the immediate successor in interest pursuant to the foreclosure and

complied with the act by giving appellant ninety days to vacate the

property. The act did not permit appellant to retain possession of the

property when appellee had given appellant notice to vacate. See id. We

overrule appellant's first issue.



In the second and third issues, appellant contends the trial

court erred in awarding appellee possession of the property because

there were errors in the foreclosure process that invalidated the sale

of the property to appellee and affected appellee's title. Any defects

in the foreclosure process or with appellee's title to the property may

not be considered in a forcible detainer action. Shutter, 318 S.W.3d at

471; Williams, 315 S.W.3d at 927. We overrule appellant's second and

third issues.



CONCLUSION



We affirm the trial court's judgment.



LANA MYERS

JUSTICE



SOURCE: DALLAS COURT OF APPEALS - 05-11-00067-CV – 4/11/12    


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