Opinion
05-23-00065-CV
02-27-2024
HAROLD CRISWELL & MARY EVELYN CRISWELL, Appellants v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR FFMLT TRUST 2005-FF2, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-FF2, Appellee
On Appeal from the County Court at Law No. 7 Collin County, Texas Trial Court Cause No. 007-03093-2022
Before Molberg, Reichek, and Smith, Justices.
MEMORANDUM OPINION
KEN MOLBERG, JUSTICE
Harold and Mary Evelyn Criswell (the Criswells) appeal from the county court's final judgment of possession for appellee Deutsche Bank National Trust Company, as trustee for FFMLT Trust 2005-FF2, Mortgage Pass-Through Certificates, Series 2005-FF2 (the Bank). We affirm in this memorandum opinion.
After losing in justice court, the Bank appealed its forcible detainer action against the Criswells to county court. The county court held a bench trial on the action, where the deed of trust for the property at issue, a substitute trustee's deed, and a notice to vacate and demand for possession were admitted into evidence. The deed of trust reflects that the Criswells borrowed $452,000, secured by the deed of trust; the Bank could sell the property if the Criswells defaulted; if sold, the Criswells must immediately surrender possession of the property; and failing that, the Criswells would be tenants-at-sufferance and could be removed by writ of possession or other court proceeding. The substitute trustee's deed reflects that the property was posted for foreclosure and sold to the Bank at a public auction. The notice reflects the Bank sent notice to the Criswells informing them it had acquired title to the property at a foreclosure sale and the Criswells were now tenants-at-sufferance; the Bank demanded the Criswells vacate no later than three days following delivery of the notice. The Bank also called Harold Criswell to testify. He told the court that he and his wife still occupied the property at issue, and the Bank rested its case.
Harold Criswell testified that the Bank's foreclosure was improper and offered into evidence his pleading from the justice court and an unspecified document from a prior case. The court admitted the pleading into evidence but sustained the Bank's relevance objection to the document from the prior case. Criswell also offered a portion of the civil practice and remedies code and a tax statement, which were admitted by the court. The Criswells then rested their case.
On appeal, the Criswells argue the trial court disregarded evidence of fraudulent foreclosure; the statute of limitations for foreclosure had run; and the foreclosure was improper because it had previously been dismissed. But as we have recited previously:
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, 127 Tex. 31, 35, 90 S.W.2d 816, 818-19 (1936). 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 but must be brought in a separate suit. Scott, 127 Tex. at 35, 90 S.W.2d at 818-19; Rice, 51 S.W.3d at 710.Williams v. Bank of New York Mellon, 315 S.W.3d 925, 926-27 (Tex. App.-Dallas 2010, no pet.). Given this, we must reject the Criswells' arguments, which relate to defects in the foreclosure process and could not have been considered by the trial court in this forcible detainer action. See id. at 927 ("Any defects in the foreclosure process or with appellee's title to the property may not be considered in a forcible detainer action. Those defects may be pursued in suits for wrongful foreclosure or to set aside the substitute trustee's deed, but they are not relevant in this forcible detainer action."). We overrule the Criswells first three issues.
In issues four and six, the Criswells complains the trial court excluded or failed to consider certain evidence. But, as we described above, the trial court sustained only one objection to the Criswells' proffered evidence, and that was a document from a prior proceeding, not the matters about which the Criswells appear to complain. We conclude these issues are not preserved for our review. See Tex. R. App. P. 33.1(a).
To the extent the Criswells complain the evidence failed to support the court's judgment, we disagree. The Bank provided sufficient evidence to establish its right to immediate possession of the property. The substitute trustee's deed showed the Bank purchased the property in a public auction following the Criswells' default on the deed of trust. The deed of trust showed the Criswells were tenants-at-sufferance after they failed to vacate the property once the Bank purchased it. And the notice to vacate informed the Criswells they were tenants-at-sufferance and must vacate the property. See Williams, 315 S.W.3d at 927. We overrule the Criswells' fifth issue.
The Criswells also seem to argue the trial court "did not allow a trial by jury." Nothing in the record indicates any party filed a timely jury demand. The record shows that the Criswells first made this complaint during the nonjury trial and then reiterated it following the rendition of judgment. Accordingly, this complaint is waived. See Lovejoy v. McWilliams, No. 11-18-00260-CV, 2020 WL 5552721, at *1 (Tex. App.-Eastland Sept. 17, 2020, no pet.) (mem. op.) (concluding appellant waived complaint about jury trial when record failed to show appellant timely requested jury trial). We overrule the Criswells' seventh issue.
Finally, the Criswells also argue the county court overruled the lower court's decision without providing a compelling reason to do so. We reject this complaint. When a forcible detainer action in justice court is appealed to county court, the latter hears the action de novo. Tex.R.Civ.P. 510.10(c); SPCP August Owner, LLC v. Gollnik, No. 05-23-00131-CV, 2024 WL 617743, at *2 (Tex. App.-Dallas Feb. 14, 2024, no pet. h.) (mem. op.). The Criswells' final issue is overruled.
Having overruled the Criswells' appellate issues, we affirm the judgment below.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.