Opinion
NO. 02-15-00229-CV
07-07-2016
TONY R. JIMENEZ AND CYNTHIA L. JIMENEZ APPELLANTS v. FEDERAL NATIONAL MORTGAGE ASSOCIATION APPELLEE
FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 2014-005741-1 MEMORANDUM OPINION
This is a forcible detainer suit. In two issues, Appellants Tony R. Jimenez and Cynthia L. Jimenez appeal from the trial court's judgment awarding possession of real property to Appellee Federal National Mortgage Association (FNMA). We affirm.
I. BACKGROUND
On April 15, 2005, the Jimenezes executed a promissory note payable to First Horizon Home Loan Corporation (First Horizon) in the amount of $168,000. To secure the debt created by the note, the Jimenezes executed a Texas Home Equity Security Instrument (First Lien) granting Mortgage Electronic Registration Systems, Inc., as nominee for First Horizon, a security interest in real property located at 1428 Shirley Way, Bedford, Texas (the property).
The Jimenezes defaulted under the terms of the home equity security instrument, and Metlife Home Loans, a division of Metlife Bank, N.A. (Metlife), the then-holder of the note, appointed a substitute trustee to conduct a foreclosure sale of the property. The foreclosure sale was held on August 3, 2010, and Metlife purchased the property at the sale. Metlife conveyed the property to FNMA by special warranty deed on August 25, 2010.
On August 12, 2014, FNMA sent a notice to vacate letter by certified and first class mail to the Jimenezes, explaining that it had acquired title to property and notifying the Jimenezes that they must vacate the property within three days. FNMA subsequently filed a petition for forcible detainer in justice court, alleging that despite its written demand to vacate the property, the Jimenezes continued to be in possession of the property and seeking possession of the property. The justice court awarded possession of the property to FNMA, and the Jimenezes appealed to the county court at law.
In the county court, the Jimenezes reurged the plea in abatement that they had filed in justice court, which contended in part that the case should be dismissed, or in the alternative, abated because FNMA's petition was not "sworn to by the plaintiff" as required by rule of civil procedure 510.3(a). See Tex. R. Civ. P. 510.3(a). The trial court denied the Jimenezes' plea in abatement. After a bench trial on the merits, the trial court awarded FNMA possession of the property. The Jimenezes appeal.
II. STANDARDS OF REVIEW
We review a trial court's ruling granting or denying a plea in abatement for an abuse of discretion. Fleming v. Fannie Mae, No. 02-09-00445-CV, 2010 WL 4812983, at *2 (Tex. App.—Fort Worth Nov. 24, 2010, no pet.) (mem. op.) (citing Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988)). A trial court abuses its discretion if the court acts without reference to any guiding rules or principles, that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). A trial court also abuses its discretion if it fails to analyze the law correctly or misapplies the law to established facts. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).
We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
III. ANALYSIS
In their first issue, the Jimenezes argue that the trial court lacked jurisdiction to hear the case and render judgment because FNMA's pleading was not properly verified as required by rule of civil procedure 510.3(a). See Tex. R. Civ. P. 510.3(a) (requiring that "a petition in an eviction case must be sworn to by the plaintiff"). FNMA's petition was verified by one of FNMA's attorneys. This court has recently held that (1) a lack of a proper verification does not deprive a county court of jurisdiction to hear a forcible detainer suit and (2) that a party's attorney may verify a petition in a forcible detainer action as that party's agent. Norvelle v. PNC Mortg., 472 S.W.3d 444, 446-49 (Tex. App.—Fort Worth 2015, no pet.) (citing Tex. R. Civ. P. 500.2(s), (u), 500.4(b), 502.1); see Randle v. Deutsche Bank Nat'l Tr. Co., No. 05-14-01439-CV, 2016 WL 308711, at *5-6 (Tex. App.--Dallas Jan. 26, 2016, no pet.) (mem. op.) (discussing and citing Norvelle with approval in holding that verification by party's attorney is sufficient to satisfy rule 510.3(a)); Norvelle v. Beauly, LLC, No. 02-15-00244-CV, 2016 WL 3452785, at *1 (Tex. App.—Fort Worth June 23, 2016, no pet. h.) (mem. op.) (same). We decline the Jimenezes' invitation to reconsider or overrule our decision in Norvelle. Thus, FNMA's attorney's verification was sufficient under rule 510.3(a), and we conclude that the trial court did not abuse its discretion by denying the Jimenezes' plea in abatement. The Jimenezes further argue that there was no evidence that FNMA's counsel was appointed by FNMA's board of directors as an officer to act for it in this case. They contend that federal law requires that "an authorized officer of FNMA is required to act for it in swearing to the truth of matters pleaded in a forcible detainer petition under [rule] 510.3(a)." The Jimenezes cite 12 U.S.C.A. § 1723(b) (West 2014) (establishing board of directors for FNMA) and 12 U.S.C.A. § 4502(3), (10), (12), and (20) (West 2014) (defining "authorizing statutes," "enterprise," "executive officer," and "regulated entity," respectively, as used in the Housing and Economic Recovery Act of 2008). None of these statutory provisions support the Jimenezes' argument, and rule 510.3(a) does not require verification by an "officer" of FNMA. Moreover, FNMA's counsel's sworn verification stated, "I am the attorney of record for [FNMA] and have authority on behalf of [FNMA] to make this affidavit." We conclude and hold that this was sufficient to establish that FNMA's counsel had authority to act on its behalf. We overrule the Jimenezes' first issue.
In their second issue, the Jimenezes challenge FNMA's right to rely on the tenant-at-sufferance provision in the home equity security instrument because they claim that FNMA was not in privity of contract with them. Section 22 of the home equity security instrument provided:
If the Property is sold pursuant to this [section], Borrower or any person holding possession of the Property through Borrower shall immediately surrender possession of the Property to the purchaser at that sale. If possession is not surrendered, Borrower or such person shall be a tenant at sufferance and may be removed by writ of possession or other court proceeding.The Jimenezes argue that FNMA could not rely on this language to establish that they were tenants at sufferance and to establish that FNMA had a superior right to immediate possession of the property because FNMA was neither the beneficiary of the home equity security instrument nor the owner of the lien that was foreclosed. The Jimenezes therefore contend that FNMA failed to establish its forcible detainer claim.
A forcible detainer action is a procedure by which the right to immediate possession of real property is determined. See Tex. Prop. Code Ann. § 24.002 (West 2014); Tex. R. Civ. P. 510.1-.13 (setting out procedures for forcible detainer action). "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." Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.); see also Tex. R. Civ. P. 510.3(e) (stating that in a forcible detainer action, "[t]he court must adjudicate the right to actual possession and not title"). To establish its forcible detainer claim, FNMA had to show that (1) it owned the property, (2) the Jimenezes became tenants at sufferance when the property was purchased under the home equity security instrument, (3) FNMA gave proper notice to the Jimenezes to vacate the premises, and (4) the Jimenezes refused to vacate the premises. See Girard v. AH4R I TX DFW, LLC, No. 02-13-00112-CV, 2014 WL 670198, at *1 (Tex. App.—Fort Worth Feb. 20, 2014, no pet.) (mem. op.) (citing Brittingham v. Fed. Home Loan Mortg. Corp., No. 02-12-00416-CV, 2013 WL 4506787, at *1 (Tex. App.—Fort Worth Aug. 22, 2013, pet. dism'd w.o.j.) (mem. op.) (citing Tex. Prop. Code Ann. § 24.002); Elwell v. Countrywide Home Loans, Inc., 267 S.W.3d 566, 568-69 (Tex. App.—Dallas 2008, pet. dism'd w.o.j.)).
At trial, FNMA introduced into evidence certified copies of the home equity security instrument, the substitute trustee's deed conveying the property to Metlife following foreclosure, and the special warranty deed from Metlife conveying the property to FNMA. FNMA also introduced into evidence a copy of the notice to vacate letter sent by FNMA to the Jimenezes. The substitute trustee's deed reflected that Metlife purchased the property after the Jimenezes defaulted under the terms of the home equity security instrument. The special warranty deed reflected that Metlife then conveyed the property to FNMA. Section 22 of the home equity security instrument established that the Jimenezes became tenants at sufferance when they failed to surrender possession of the property after it was sold at the foreclosure sale. The Jimenezes status as tenants at sufferance under section 22 did not require that FNMA be a beneficiary of the home equity security instrument or the owner of the lien when it was foreclosed upon. Finally, the notices sent by FNMA informed the Jimenezes that they were required to vacate the property. This evidence was sufficient to establish FNMA's forcible detainer suit. See, e.g., Reardon v. Fed. Home Loan Mortg. Corp., No. 03-12-00562-CV, 2013 WL 4487523, at *1-2 (Tex. App.—Austin Aug. 14, 2013, no pet.) (mem. op.) (holding similar evidence sufficient to establish plaintiff's right to immediate possession of the property where plaintiff purchased property following foreclosure).
Accordingly, we overrule the Jimenezes' second issue.
IV. CONCLUSION
Having overruled both of the Jimenezes' issues, we affirm the trial court's judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ. DELIVERED: July 7, 2016
See Tex. R. App. P. 47.4.