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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Nature of Forcible Detainer Action (in Justice Court)

     
LIMITED NATURE OF SUIT FOR POSSESSION OF LEASED PREMISES ("EVICTION") IN JP COURT EXPLAINED  
 
In a forcible detainer action, the only issue the trial court determines is whether the party seeking to obtain possession is entitled to actual and immediate possession, and the merits of whether a party has title shall not be determined. See Tex. R. Civ. P. 746; Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.-Dallas 2010, no pet.); Black v. Wash. Mut. Bank, 318 S.W.3d 414, 416 (Tex. App.-Houston [1st Dist.] 2010, pet. dism'd w.o.j.).
     
A forcible detainer action is not exclusive, but cumulative of any other remedy that a party may have in the courts of this state. See Rice v. Pinney, 51 S.W.3d 705, 708 (Tex. App.-Dallas 2001, no pet.); Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 437 (Tex.App.-Houston [1st Dist.] 2007, no pet.). Thus, the displaced party is entitled to bring a separate suit in the district court to determine the question of title. Rice, 51 S.W.3d at 708; see also Williams, 315 S.W.3d at 927 (stating questions over whether a sale of property in a deed of trust is invalid "must be brought in a separate suit").
   
A justice court or county court at law is not deprived of jurisdiction merely by the existence of a title dispute; rather, it is deprived of jurisdiction only if "the right to immediate possession necessarily requires the resolution of a title dispute." Rice, 51 S.W.3d at 713 (citing Haith v. Drake, 596 S.W.2d 194, 196 (Tex. App.-Houston 

SOURCE: DALLAS COURT OF APPEALS - 05-10-01402-CV - 11/9/11
    
 

Suit on personal guaranty: Elements a creditor has to prove to recover from guarantor

LAW OF GUARANTY IN TEXAS 
  
When can a creditor sue the guarantor of a promissory note or contract? 
  
ELEMENT OF SUIT AGAINST GUARANTOR

To recover for breach of the guaranty agreement, [ Plaintiff ] had to establish (1) the existence and ownership of the guaranty agreement, (2) the terms of the underlying contract by the holder, (3) the occurrence of the conditions upon which liability is based, and (4) the failure or refusal to perform the promise by the guarantor. Escalante v. Luckie, 77 S.W.3d 410, 416 (Tex. App.—Eastland 2002, pet. denied). A secured party is not required to dispose of the collateral through foreclosure before suing on the underlying obligation. Christian v. Univ. Fed. Sav. Ass’n, 792 S.W.2d 533, 535 (Tex. App.—Houston [1st Dist.] 1990, no writ). Where a guaranty agreement so provides, a lender need not liquidate its collateral before obtaining judgment against a guarantor. Fed. Deposit Ins. Corp. v. Coleman, 795 S.W.2d 706, 709-710 (Tex. 1990).

SOURCE: Eastland Court of Appeals - 11-09-00196-CV - 6/16/11
 
CITES AND CASELAW SNIPPETS ON ELEMENTS OF ACTION AGAINST GUARANTORS FROM OTHER TEXAS COURTS OF APPEALS 
   
Wiman v. Tomaszewicz, 877 S.W.2d 1, 8 (Tex. App.-Dallas 1994, no writ) (to recover on the guaranty of a note, a party must show proof of the existence and ownership of the guaranty contract, the terms of the underlying contract by the holder, the occurrence of the conditions upon which liability is based, and the failure or refusal to perform by the guarantor). In order to recover on a breach of guaranty agreement, the plaintiff must prove: (1) the existence and ownership of the guaranty agreement; (2) the terms of the underlying contract by the holder; (3) the occurrence of the conditions upon which liability is based; and (4) the failure or refusal to perform the promise by the guarantor. Marshall v. Ford Motor Company, 878 S.W.2d 629, 631 (Tex.App.-Dallas 1994, no writ). 
   
A guaranty agreement is a person's promise to perform the same act that another person is contractually bound to perform. Simmons v. Compania Financiera Libano, S.A., 830 S.W.2d 789, 792 (Tex. App.-Houston [1st Dist.] 1992, writ denied). A guaranty creates a secondary obligation under which the guarantor promises to answer for the debt of the primary obligor if the primary obligor fails to perform. Garner v. Corpus Christi Nat'l Bank, 944 S.W.2d 469, 475 (Tex. App.-Corpus Christi 1997, writ denied). 
  
To recover under a guaranty agreement, a plaintiff must show (1) the existence and ownership of the guaranty agreement, (2) the terms of the underlying contract by the holder, (3) the occurrence of the conditions upon which liability is based, and (4) the failure or the refusal to perform the promise by the guarantor. Byrd v. Estate of Nelms, 154 S.W.3d 149, 157 (Tex. App.-Waco 2004, pet. denied); Roye Enter., Inc. v. Roper, No. 02-04-00132-CV, 2005 WL 1791964, at *3 (Tex. App.-Fort Worth July 28, 2005, no pet.) (mem. op.); see also Simpson v. MBank Dallas, N.A., 724 S.W.2d 102, 107 (Tex. App.-Dallas 1987, writ ref'd n.r.e.) (stating that when a guaranty is in writing and signed by the guarantor, the guaranty's existence presumes consideration). 
  
 "To obtain summary judgment on a guaranty agreement, a party must conclusively prove: (1) the existence and ownership of the guaranty contract, (2) the performance of the terms of the contract by plaintiff, (3) the occurrence of the condition on which liability is based, and (4) guarantor's failure or refusal to perform the promise." Corona v. Pilgrim's Pride Corp., 245 S.W.3d 75, 80 (Tex.App.-Texarkana 2008, pet. denied). Barclay v. Waxahachie Bank & Trust Co., 568 S.W.2d 721, 723 (Tex.Civ. App.-Waco 1978, no writ). 
   
Recovery on a Promissory Note and Guaranty 
   
To recover for a debt on a promissory note, a party must establish that it is the legal holder of the note, the debtor's execution of the note, and that an outstanding balance is due and owing. Austin v. Countrywide Homes, 261 S.W.3d 68, 72 (Tex. App.-Houston [1st Dist.] 2008, pet. denied). To recover on the guaranty of a note, a party must show proof of the existence and ownership of the guaranty contract, the terms of the underlying contract by the holder, the occurrence of the conditions upon which liability is based, and the failure or refusal to perform by the guarantor. Wiman v. Tomaszewicz, 877 S.W.2d 1, 8 (Tex.App.-Dallas 1994, no writ). 

RELATED CAUSES OF ACTION: 

Suit for breach of note, default under promissory note, breach of contract, breach of residential or commercial lease agreement, personal guaranty agreement, corporate guaranty [not guarantee], suit for judicial forclosure of security interest in collateral, suit for deficiency judgment

At-will tenancy and holdover tenants – What is the meaning of these legal terms in landlord-tenant law?

HOLDOVER TENANCY DEFINED: What makes a person who rents property a holdover tenant? A tenant who continues to occupy the premises after expiration of a lease is a holdover tenant. Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 908 (Tex. 2007). We look at the lease itself to determine whether the terms of the lease continue in the event of a holdover tenancy. Bockelmann v. Marynick, 788 S.W.2d 569, 571-72 (Tex. 1990). A holdover tenant is presumed to be bound by covenants that were binding on him during the term of the lease. Barragan v. Munoz, 525 S.W.2d 559, 561 (Tex. Civ. App.--El Paso 1975, no writ). Even when the lease does not contain a holdover provision, if the tenant remains in possession and rent continues to be accepted by the landlord, the terms of the expired lease are presumed to continue unless there is an agreement to the contrary. Id. at 562; see also Carrasco v. Stewart, 224 S.W.3d 363, 368 (Tex. App.--El Paso 2006, no pet.). TENANT AT WILL VS. TENANT AT SUFFERANCE: What is the difference? When no new lease is formed and a tenant continues in possession of land covered by a prior lease, that tenant is either a tenant at will or a tenant at sufferance. See Bockelmann, 788 S.W.2d at 571; ICM Mortgage Corp. v. Jacob, 902 S.W.2d 527, 530 (Tex. App.--El Paso 1994, writ denied). A tenant at will is one who is in lawful possession of premises by permission of the owner or landlord and for no fixed duration. See Fandey v. Lee, 880 S.W.2d 164, 169 (Tex. App.--El Paso 1994, writ denied); Virani v. Syal, 836 S.W.2d 749, 751-52 (Tex. App.--Houston [1st Dist.] 1992, writ denied); Black's Law Dictionary 1604 (9th ed. 2009). A tenant at sufferance is a person who has been in lawful possession of property but who wrongfully remains as a holdover after his right to possession has expired. See ICM Mortgage, 902 S.W.2d at 530; Black's Law Dictionary 1604 (9th ed. 2009). "A tenant at will, in contrast to a tenant at sufferance, possesses the property with the owner's consent." ICM Mortgage, 902 S.W.2d at 530. TENANCY AT WILL ANALOGOUS TO EMPLOYMENT AT WILL: Terminable by either party [lessor or lessee] A tenancy at will is terminable at the will of either party upon fair notice. See ICM Mortgage, 902 S.W.2d at 530; Black's Law Dictionary 1604 (9th ed. 2009). LEASE DEFINED A "lease" for real property is an agreement by which a person owning property grants to another the right to use and occupy the property for a specified period of time in exchange for a periodic payment of a stipulated price, which is usually referred to as rent. Franklin v. Jackson, 847 S.W.2d 306, 308 (Tex. App.--El Paso 1992, writ denied); Black's Law Dictionary 970 (9th ed. 2009). SOURCE: Austin Court of Appeals - 03-09-00713-CV – 6/3/11 (Agreement required periodic payments in the form of monthly payments from [ party ] to [ party ] in the amount of $989.44. The term of the Agreement was thirty-six months. In the Agreement, the parties referred to [ party ] as the "Lessor" and [ party ] as the "Lessee." Thus, the Agreement met all the elements of a lease. See Franklin, 847 S.W.2d at 308; Black's Law Dictionary 970 (9th ed. 2009)). RELATED LEGAL TERMS: landlord-tenant, residential / commercial lease, rent, eviction, right to possession, forcible entry and detainer