Residential Evictions Following Foreclosure
Texas foreclosures are predominantly nonjudicial proceedings without the need for court involvement. However, after foreclosure, if the borrower or occupant of the foreclosed property refuses to vacate the property, the foreclosure purchaser must initiate a suit in the justice of the peace court in the precinct where the foreclosed property is located to obtain possession of the property.
Although under Texas law the cause of action used to oust a borrower or occupant from the premises is commonly known as an eviction suit, statutorily an eviction must be brought as either a forcible-entry-and-detainer suit or a forcible-detainer suit. Generally, in this chapter the word eviction is used to describe the process of removing a borrower, tenant, or occupant from real property after foreclosure, regardless of whether a forcible-entry-and-detainer or forcible-detainer action is required.
A forcible entry and detainer occurs when a person enters real property of another without legal authority or by force and refuses to surrender possession upon demand. Tex. Prop. Code § 24.001(a). No landlord-tenant relationship exists in a forcible-entry situation. American Spiritualist Ass’n v. Ravkind, 313 S.W.2d 121, 124 (Tex. App.—Dallas 1958, writ ref’d n.r.e.).
By contrast, under Texas Property Code section 24.002, a person commits a forcible detainer if he refuses to surrender possession of real property on demand and the person is either (1) a tenant or a subtenant who willfully and without force holds over after termination of the tenant’s right of possession; (2) a tenant at will or by sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant’s lease; or (3) a tenant of a person who acquired possession by forcible entry. Tex. Prop. Code § 24.002 (a). In this instance, the landlord’s remedy to regain possession from the tenant is an action in forcible detainer. Goggins v. Leo, 849 S.W.2d 373, 375 (Tex. App.—Houston [14th Dist.] 1993, no writ) (plaintiff prevailed on theory that defendant was tenant by sufferance).
While both types of eviction suits are intended to be expedited proceedings, there are numerous pitfalls that can turn the normal thirty- to forty-five-day eviction proceeding into a two-year legal entanglement. The purpose of this chapter is to explain generally the eviction process after foreclosure—especially for those who are not familiar with this unique proceeding.
§ 34.2Distinction between Forcible-Entry-and-Detainer and Forcible-Detainer Suits
There are procedural and evidentiary differences between a Texas Property Code section 24.001 action for forcible entry and detainer and a forcible-detainer action described in Texas Property Code section 24.002. Procedurally, Texas Property Code section 24.005 provides different requirements on how notice must be given to a defendant before filing a forcible-entry-and-detainer suit or a forcible-detainer suit. See Tex. Prop. Code § 24.005. From the standpoint of evidence, the plaintiff must show the defendant entered the real property of another without legal authority or by force in a forcible-entry-and-detainer suit, while no such showing is required in a forcible-detainer suit. Yarto v. Gilliland, 287 S.W.3d 83, 87 n.3 (Tex. App.—Corpus Christi–Edinburg 2009, no pet.).
§ 34.3Eviction Following Foreclosure
After foreclosure, a purchaser is entitled to full ownership of the rights conveyed at foreclosure, including possession. Scott v. Hewitt, 90 S.W.2d 816 (Tex. 1936). Although foreclosure transfers title from the mortgagor to the purchaser, it does not put the purchaser in possession; it only gives the purchaser a right to possession. Lighthouse Church of Cloverleaf v. Texas Bank, 889 S.W.2d 595, 603 (Tex. App.—Houston [14th Dist.] 1994, writ denied). If a mortgagor or another party who is not entitled to possession remains in possession of property following foreclosure, that party is deemed a tenant at sufferance. Home Savings Ass’n v. Ramirez, 600 S.W.2d 911 (Tex. App.—Corpus Christi–Edinburg 1980, writ ref’d n.r.e.). To remove a tenant at sufferance, the foreclosure sale purchaser may file a forcible-detainer suit. Lighthouse Church of Cloverleaf, 889 S.W.2d at 603.
Beginning in 1989, the Texas legislature specifically provided that an occupant of property at the time of foreclosure could be evicted by a forcible-detainer lawsuit if the lien foreclosed was superior to the occupant’s lease. Tex. Prop. Code § 24.002(a)(2); Powelson v. U.S. Bank National Ass’n, 125 S.W.3d 810 (Tex. App.—Dallas 2004, no pet.). Previously, a forcible-detainer lawsuit could not be brought after foreclosure unless the deed of trust provided for a landlord-tenant relationship after foreclosure. Ramirez, 600 S.W.2d at 913.
With the 1989 change to Texas Property Code section 24.002, arguably a buyer at a foreclosure sale can bring a forcible-detainer suit without having to prove the deed of trust created a landlord-tenant relationship after foreclosure. However, this proposition has not been definitely decided by the courts. See Chinyere v. Wells Fargo Bank, N.A., 440 S.W.3d 80 (Tex. App.—Houston [1st Dist.] 2012, no pet.). When a defendant in a postforeclosure eviction suit raises issues of title, the substitute trustee’s deed is not, in itself, sufficient to establish a landlord-tenant relationship; therefore, a deed of trust containing a “tenant at sufferance” clause is necessary. Wells Fargo, N.A. v. Steel, No. 03-13-00297-CV, 2014 WL 108414 (Tex. App.—Austin Jan. 7, 2014, no pet.) (mem. op.).
§ 34.4Occupying, Vacating, and Abandoning Property
After foreclosure, a purchaser may find it difficult to determine whether an eviction action is needed for occupied property. Important to such an analysis is the fact that, in Texas, a tenant may occupy a property without actually living in it. Kelley-Coppedge, Inc. v. Highlands Insurance Co., 980 S.W.2d 462, 467 (Tex. 1998) (“occupy” means “to hold or keep for use”). A tenant has vacated the premises when the tenant no longer occupies the premises and has removed all or substantially all of his property from the premises. Knoff v. United States Fidelity & Guaranty Co., 447 S.W.2d 497, 501 (Tex. App.—Houston [1st Dist.] 1969, no writ). Intent is not required to establish that an occupant has vacated the premises. Scot Properties, Ltd. v. Wal-Mart Stores, Inc., 138 F.3d 571 (5th Cir. 1998). If a substantial amount of personal property remains in the premises, the property should be considered “occupied” and an action for forcible detainer pursued.
§ 34.5Governing Law and Statutes
Chapter 24 of the Texas Property Code sets the statutory requirements for both forcible-entry-and-detainer and forcible-detainer lawsuits. See Tex. Prop. Code §§ 24.001–.011. The Rules of Practice in Justice Courts, chapter 500 of Texas Rules of Civil Procedure, and specifically Texas Rule of Civil Procedure 510 apply “to a lawsuit to recover possession of real property under Chapter 24 of the Texas Property Code.” Tex. R. Civ. P. 510.1.
It must be noted that unless a specific eviction rule found in rule 510 apply, the rules of civil procedure applying to all justice court proceedings are also applicable to eviction matters.
The justice court in the precinct in which the real property is located has jurisdiction to issue a writ of possession in any eviction suit. Tex. Prop. Code § 24.004. Additionally, a forcible-detainer judgment does not have res judicata effect with respect to other issues related to a lease other than the right to immediate possession of the property. McGlothlin v. Kliebert, 672 S.W.2d 231 (Tex. 1984). When a mortgage holder forecloses and seeks to evict the former owner, the owner’s contention that the foreclosure and sale were not properly conducted does not deprive the justice court of jurisdiction to grant an eviction. Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.); Falcon v. Ensignia, 976 S.W.2d 336, 338 (Tex. App.—Corpus Christi–Edinburg 1998, no pet.) (“Justice courts may adjudicate possession even where issues related to the title of real property are tangentially or collaterally related to possession.”).
However, if the question of title is so integrally linked to the issue of possession and possession cannot be determined without first determining title, a justice court lacks jurisdiction to grant an eviction. Falcon, 976 S.W.2d at 338. A suit to determine title and ownership of real property can be brought in only a district court or a county court with jurisdiction to determine title.
A forcible-detainer action is a procedure by which the right to immediate possession of real property is determined. Cattin v. Highpoint Village Apartments, 26 S.W.3d 737 (Tex. App.—Fort Worth 2000, pet. dism’d w.o.j.). 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). To prevail in a forcible-detainer action, the plaintiff does not need to prove title—only sufficient evidence of ownership to demonstrate a superior right to immediate possession. Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.). The mere existence of a title dispute does not deprive a justice court or county court on appeal of jurisdiction over a forcible-detainer action. Rice v. Pinney, 51 S.W.3d 705 (Tex. App.—Dallas 2001, no pet.).
However, if the question of title is so intertwined with the issue of possession, then possession may not be adjudicated without first determining title. Dormady, 61 S.W.3d at 557. In those cases, when possession cannot be determined until the issue of title is decided, neither the justice court nor the county court on appeal has jurisdiction. Dormady, 61 S.W.3d at 558.
Cases where title was seen to be so intertwined with a determination of possession involved compliance with a contract for sale or a claim of title to the property by adverse possession. Dormady, 61 S.W.3d at 559. In Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 170 (Tex. App.—Houston [1st Dist.] 1995, writ denied), the Houston court of appeals concluded the homeowner’s title issue deprived the justice court and county court of subject-matter jurisdiction when the note holder sued to enforce a “builder’s and mechanic’s lien contract.” Later, the Dallas court of appeals observed the contract in Mitchell did not create any type of landlord-tenant relationship or provide any other independent basis on which the trial court could decide the immediate possession issue. Rice, 51 S.W.3d at 712.
The first step in the postforeclosure forcible-detainer process is to serve a notice to vacate. Pursuant to Texas Property Code section 24.002, “[a] person who refuses to surrender possession of real property on demand commits a forcible detainer if the person . . . is a tenant at will or by sufferance.” Tex. Prop. Code § 24.002(a)(2). Proper notice is an element of a forcible-detainer action. See Tex. Prop. Code §§ 24.002, 24.005; Murphy v. Countrywide Home Loans, Inc., 199 S.W.3d 441 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). Because forcible detainer is a statutory cause of action, a landlord must strictly comply with its requirements. Kennedy v. Andover Place Apartments, 203 S.W.3d 495, 497 (Tex. App.—Houston [14th Dist.] 2006, no pet.). A notice to vacate is considered a demand for possession for purposes of section 24.002(b). See Tex. Prop. Code § 24.005(h).
The notice to vacate and demand for possession must be made in writing by a person entitled to possession of the property and must comply with the requirements for notice to vacate under Texas Property Code section 24.002(b). See Tex. Prop. Code §§ 24.002, 24.005. See form 34-1 in this chapter. Section 24.005(d) provides that an oral notice to vacate may be provided to only an occupant who obtained possession by forcible entry under Texas Property Code section 24.001.
The notice to vacate should state the reason for the landlord’s action with enough specificity to enable the occupant to prepare a defense. Nealy v. Southlawn Palms Apartments, 196 S.W.3d 386 (Tex. App.—Houston [1st Dist.] 2006, no pet.). In the context of a postforeclosure action for forcible detainer, a well-drafted notice should include the basis for the parties’ claim for possession (that is, foreclosure), a specific time deadline to vacate, and the date for delivery of possession. The notice to vacate should also include an unequivocal demand for possession.
If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at least three days’ written notice to vacate before the landlord files a forcible-detainer suit unless the parties have contracted for a shorter or longer notice period in a written lease or agreement. Tex. Prop. Code § 24.005(b).
The express language of the notice provisions does not preclude an attorney for a person entitled to possession from actually sending the demand/notice letter. See Tex. Prop. Code §§ 24.002(b), 24.005; Effel v. Rosberg, 360 S.W.3d 626, 631 (Tex. App.—Dallas 2012, no pet.) (written notice to vacate sent by purchaser of property “through his attorney” before filing forcible-detainer action conclusively showed compliance with notice requirements of Property Code); Armbruster v. Deutsche Bank National Trust Co., No. 03-13-00532-CV, 2015 WL 5232109, at *2 (Tex. App.—Austin Aug. 31, 2015, no pet.) (mem. op.) (evidence was sufficient to establish right to possession where it included “copies of the notice mailed by Deutsche’s counsel to the Armbrusters that advised them that their tenancy was being terminated and that they were required to vacate the property”); Tex. R. Civ. P. 500.4 (individuals, corporations, and entities may be represented by attorney or “authorized agent” in eviction cases in justice court).
There is also no requirement that the person (or entity) represented by the attorney be specifically named in a demand letter. See Tex. Prop. Code §§ 24.002(b), 24.005; Randle v. Deutsche Bank National Trust Co., No. 05-14-01439-CV, 2016 WL 308711, at *9 (Tex. App.—Dallas Jan. 26, 2016, no pet.) (mem. op.).
In general, a party who successfully obtains possession of property in a forcible-detainer action may recover its attorney’s fees, provided a proper notice to vacate was sent at least ten days before suit was filed. See Tex. Prop. Code § 24.006(a). The notice requirement, however, does not apply when “a written lease entitles the landlord to recover attorney’s fees.” Tex. Prop. Code § 24.006(a), (b).
In the context of residential tenancies, the Property Code defines the term lease as “any written or oral agreement between a landlord and tenant that establishes or modifies the terms, conditions, rules, or other provisions regarding the use and occupancy of a dwelling.” Tex. Prop. Code § 92.001(3).
Previous practice and interpretation of Texas law had plaintiffs who wished to seek attorney’s fees sending a ten-day notice and then filing its postforeclosure suit for forcible detainer. Case law changed this practice for the benefit of plaintiffs. In Rust v. Bank of America, N.A., No. 01-15-00373-CV, 2016 WL 3221233 (Tex. App.—Houston [1st Dist.] June 9, 2016, pet. denied) (mem. op.), a postforeclosure purchaser brought a forcible-detainer suit and sought attorney’s fees. Bank of America admitted it did not send a ten-day notice but argued that the deed of trust constituted a written lease and provided for the award of attorney’s fees. Rust, 2016 WL 3221233, at *4. The Houston court of appeals agreed with Bank of America and held the deed of trust satisfied the definition of “lease” under Texas Property Code section 92.001(3). Therefore, the court held that despite not sending a ten-day notice, Bank of America was entitled to its attorney’s fees under Texas Property Code section 24.006(b). Rust, 2016 WL 3221233, at *4.
The notice to vacate must be given in person or by mail at the premises in question. Personal notice may be by personal delivery to the tenant or any person residing at the premises who is sixteen years of age or older or by personal delivery to the premises and affixing the notice to the inside of the main entry door. Notice by mail may be by regular, registered, or certified mail, return receipt requested, to the premises in question. Tex. Prop. Code § 24.005(f).
The notice period is calculated from the day the notice is delivered. Tex. Prop. Code § 24.005(g).
When a letter, properly addressed and postage prepaid, is mailed, a presumption exists the notice was duly received by the addressee. Thomas v. Ray, 889 S.W.2d 237, 238 (Tex. 1994); Brittingham v. Federal Home Loan Mortgage Corp., No. 02-12-00416-CV, 2013 WL 4506787, at *2 (Tex. App.—Fort Worth Aug. 22, 2013, pet. dism’d w.o.j.) (mem. op.) (evidence showed notice to vacate sent by certified mail returned as “unclaimed and unable to forward,” but business records affidavit provided evidence notice also mailed by first-class mail and trial court “was free to disbelieve tenant’s testimony during bench trial that he did not receive the first-class letters”); Fashakin v. Federal Home Loan Mortgage Corp., No. 14-11-01079-CV, 2013 WL 1316694 (Tex. App.—Houston [14th Dist.] Apr. 2, 2013, pet. denied) (mem. op.) (delivery of notice to vacate established because summary judgment evidence showed it was sent by first-class mail and no summary judgment evidence controverted receipt of the first-class letter); Farkas v. Federal National Mortgage Ass’n, No. 05-11-01416-CV, 2012 WL 5351262 (Tex. App.—Dallas Oct. 31, 2012, no pet.) (mem. op.) (testimony of custodian of records for plaintiff’s attorney that he mailed notice to vacate by first-class mail and it had not been returned was sufficient to establish notice to vacate was given; however, this presumption could be rebutted by an offer of proof of nonreceipt). In the absence of proof to the contrary, the presumption has the force of a rule of law. Kaldis v. U.S. Bank National Ass’n, No. 14-11-00607-CV, 2012 WL 3229135 (Tex. App.—Houston [14th Dist.] Aug. 9, 2012, pet. dism’d w.o.j.) (mem. op.) (landlord established delivery of notice to vacate by proving that, although letters sent to tenant by certified mail were returned unclaimed, letters sent by first-class mail were not, and trial court was free to disbelieve tenant’s testimony during a bench trial that he did not receive the first-class letters); Ramey v. Bank of New York, No. 14-06-00824-CV, 2010 WL 2853887 (Tex. App.—Houston [14th Dist.] July 22, 2010, pet. dism’d w.o.j.) (mem. op.) (landlord established delivery of notice to vacate because it proved letter was sent to tenant by certified and first-class mail and there was no evidence negating receipt of the first-class letter).
Alternatively, Texas Property Code section 24.005 provides that—
a landlord may deliver the notice to vacate by securely affixing to the outside of the main entry door a sealed envelope that contains the notice and on which is written the tenant’s name, address, and in all capital letters, the words “IMPORTANT DOCUMENT” or substantially similar language and, not later than 5 p.m. of the same day, depositing in the mail in the same county in which the premises in question is located a copy of the notice to the tenant if:
1.the premises has no mailbox and has a keyless bolting device, alarm system, or dangerous animal that prevents the landlord from entering the premises to affix the notice to vacate to the inside of the main entry door; or
2.the landlord reasonably believes that harm to any person would result from personal delivery to the tenant or a person residing at the premises or from personal delivery to the premises by affixing the notice to the inside of the main entry door.
Tex. Prop. Code § 24.005(f–1). A notice to vacate is considered delivered on the date the envelope is affixed to the outside of the door and is deposited in the mail, regardless of the date the notice is received. Tex. Prop. Code § 24.005(f–2).
After a proper notice to vacate is delivered under applicable law, the foreclosure sale purchaser or its successor in interest may file a sworn complaint with the justice court seeking judgment against the tenant for possession of the premises. See Tex. Prop. Code §§ 24.005, 24.0051; Tex. R. Civ. P. 510.3.
§ 34.9:1Sworn Petition Required
Once a sworn eviction petition is filed in accordance with Texas Rule of Civil Procedure 510.3, the justice of the peace must immediately issue citation directed to the defendant. Texas courts have held that it is sufficient for the plaintiff’s attorney in a postforeclosure forcible-detainer action to verify the petition. Norvelle v. PNC Mortgage, 472 S.W.3d 444 (Tex. App.—Fort Worth 2015, no pet.).
The eviction petition must include—
1.the name of the plaintiff;
2.the name, address, telephone number, and fax number, if any, of the plaintiff’s attorney, if applicable, or the address, telephone number, and fax number, if any, of the plaintiff;
3.the name, address, and telephone number, if known, of the defendant;
4.the amount of rent due and unpaid at the time of filing and within the jurisdictional limits of the court and the amount of money, if any, the plaintiff seeks;
5.the basis for the plaintiff’s claim against the defendant, including the facts and grounds for eviction. When eviction is based upon a written residential lease, the plaintiff must name all tenants obligated under the lease the plaintiff seeks to evict;
6.a statement of whether the plaintiff consents to e-mail service of the answer and any other motions or pleadings;
7.a description, including the address, if any, of the premises that the plaintiff seeks possession of;
8.a description of when and how the notice to vacate was delivered; and
9.if applicable, a statement that attorney’s fees are being sought.
See Tex. R. Civ. P. 502.2, 510.3. See form 34-2 in this chapter.
The petition must list all defendants’ home and work addresses known to the plaintiff and must state that the plaintiff knows of no other home or work addresses of the defendant in the county where the premises are located to support a judgment based upon substituted service. Tex. R. Civ. P. 510.4(c).
When a forcible-entry-and-detainer eviction is based on a written residential lease, all tenants obligated under the lease and residing at the premises that plaintiff seeks to evict must be named as defendants. No judgment or writ of possession may issue or be executed against any person not named in the petition and served with citation. Tex. R. Civ. P 510.3(c). Notably, in forcible-detainer actions, Texas law imposes no requirement on a plaintiff to name as defendants all parties with a possessory interest in the contested property. Tex. Prop. Code §§ 24.002, 24.005; McGillivray v. Countrywide Home Loans, Inc., 360 F. App’x 533, 536 (5th Cir. 2010).
A minority of justice courts in postforeclosure forcible-detainer suits impose different rules governing who must be named as proper party defendants. To alleviate surprises and delays, the practitioner should name as defendants all mortgagors of the foreclosed deed of trust and all occupants of the subject property.
§ 34.9:4Identification of Subject Property
A forcible-detainer petition must describe the real estate the plaintiff seeks to possess and state the facts that entitle the petitioner to possession. Powelson v. U.S. Bank National Ass’n, 125 S.W.3d 810, 812 (Tex. App.—Dallas 2004, no pet.). Identification of the premises by street address is sufficient. See Tex. R. Civ. P. 510.3(a)(1); Mitchell v. CitiFinancial Mortgage Co., 192 S.W.3d 882, 883 (Tex. App.—Dallas 2006, no pet.). There is no legal requirement that the property be described by legal description. Powelson, 125 S.W.3d at 812.
§ 34.9:5Venue and Jurisdiction—Where to File Suit
Venue is mandatory in the justice precinct where all or part of the premises is located. Tex. Civ. Prac. & Rem. Code § 15.084. In Markham v. Deutsche Bank National Trust Co., No. 13-09-00633-CV, 2011 WL 2739558, at *2 (Tex. App.—Corpus Christi–Edinburg July 14, 2011, no pet.) (mem. op.), the court of appeals held both the justice court and the county court lacked subject matter jurisdiction because the property was located in a different precinct than the precinct in which the eviction suit was filed. Therefore, the petition was dismissed because it was filed in the wrong precinct. If suit is filed in the wrong county, plaintiff is not entitled to a refund of the filing fee, but all fees for service of process will be refunded if the case was dismissed before service was attempted. See Tex. R. Civ. P. 510.3(b).
After filing of a sworn petition, the justice of the peace is required to immediately issue citation directed to each defendant. Tex. R. Civ. P. 510.4. The citation must—
1.be styled “The State of Texas”;
2.be signed by the clerk under seal of court or by the judge;
3.contain the name, location, and address of the court;
4.state the date of filing of the petition;
5.state the date of issuance of the citation;
6.state the file number and names of parties;
7.state the plaintiff’s cause of action and relief sought;
8.be directed to the defendant;
9.state the name and address of attorney for plaintiff or, if the plaintiff does not have an attorney, the address of plaintiff;
10.state the date the defendant must appear in person for trial at the court issuing citation, which must not be less than ten days nor more than twenty-one days after the petition is filed;
11.notify the defendant that if the defendant fails to appear in person for trial, judgment by default may be rendered for the relief demanded in the petition;
12.inform the defendant that, upon timely request and payment of a jury fee no later than three days before the day set for trial, the case will be heard by a jury;
13.contain all warnings required by chapter 24 of the Texas Property Code; and
14.include the following statement: “For further information, consult Part V of the Texas Rules of Civil Procedure, which is available online and also at the court listed on this citation.”
Tex. R. Civ. P. 510.4; see also Tex. R. Civ. P. 502.2.
A private process server is not authorized to serve citation in an eviction lawsuit. Tex. Att’y Gen. Op. GA-112 (2003). Only a sheriff or constable can serve an eviction suit and must deliver a copy of the citation, with a copy of the petition attached, to the defendant or by leaving a copy with some person, other than the plaintiff, over the age of sixteen years at the defendant’s usual place of residence, at least six days before the day set for trial. Tex. R. Civ. P. 510.4(b).
The citation may be served by delivery to the premises if—
1.the constable, sheriff, or other person authorized by written court order is unsuccessful in serving the citation under Texas Rule of Civil Procedure 510.4(b);
2.the petition lists all home and work addresses of the defendant that are known to the plaintiff and states that the plaintiff knows of no other home or work addresses of the defendant in the county where the premises are located; and
3.the constable, sheriff, or other person authorized files a sworn statement that it has made diligent efforts to serve such citation on at least two occasions at all addresses of the defendant in the county where the premises are located, stating the times and places of attempted service.
A judge must promptly determine whether a sworn statement seeking service by delivery of citation to the premises meets the requirements of Texas Rule of Civil Procedure 510.4(c)(1)(C). See Tex. R. Civ. P. 510.4(c)(2). The plaintiff is not required to make a request or motion for alternative service.
If the judge authorizes service by delivery of citation to the premises, at least six days before the day set for trial, the constable, sheriff, or other person authorized by written court order must—
1.deliver a copy of the citation with a copy of the petition attached to the premises by placing it through a door mail chute or slipping it under the front door. If neither method is possible, the officer may securely affix the citation on the front door or main entry to the premises;
2.deposit in the mail a copy of the citation with a copy of the petition attached, addressed to defendant at the premises and sent by first-class mail; and
3.the constable, sheriff, or other person authorized by written court order must note on the return of service the date the citation was delivered and the date it was deposited in the mail.
Tex. R. Civ. P. 510.4(c)(3), (4); see also Tex. Prop. Code 24.0051(a).
§ 34.10The Eviction Proceeding
Once a petition is filed and citation is properly served, the court must determine whether the plaintiff is entitled to possession of the subject real property.
The appearance date for trial must be stated in the citation and must not be less than ten days nor more than twenty-one days after the petition is filed. Tex. R. Civ. P. 510.4(a)(10); see also Tex. R. Civ. P. 510.6(a). Further, an eviction trial cannot be held less than six days after service was obtained. Tex. R. Civ. P. 510.7(a). Otherwise, an eviction case is docketed and tried the same as any other case in justice court.
A party may file a sworn motion supported by two other credible persons for the mandatory transfer of a case to the nearest justice of the peace within the county if the party believes a fair and impartial trial before the justice or in the precinct cannot be obtained. Tex. R. Civ. P. 502.4(e) (former rule 528); Crowder v. Franks, 870 S.W.2d 568 (Tex. App.—Houston [1st Dist.] 1993, no writ) (applying rule 528 to a forcible-detainer suit but upholding trial court’s denial of transfer because affiants did not state that they were residents of county in which justice of the peace presided).
Counterclaims and the joinder of suits against third parties are not permitted in eviction cases. Tex. R. Civ. P. 510.3(e).
Before August 31, 2013, pretrial discovery in forcible-detainer actions was permitted. Forward v. Housing Authority of the City of Grapeland, 864 S.W.2d 167 (Tex. App.—Tyler 1993, no writ) (forcible-detainer case in which tenant engaged in discovery). However, pretrial discovery is now limited to what the judge considers reasonable and necessary. Tex. R. Civ. P. 500.9(a). The discovery rules under the Rules of Civil Procedure apply “when the judge hearing the case determines that a particular rule must be followed to ensure that the proceedings are fair to all parties.” Tex. R. Civ. P. 500.3(e). All pretrial discovery requests must be attached to a written motion and filed with the court for approval. The motion, but not the attached discovery request, must be served on the opposing party. Unless a hearing is requested, the judge may rule on the motion without a hearing.
Trial in an eviction case cannot be postponed for more than seven days unless both parties agree in writing. Tex. R. Civ. P. 510.7(c).
Either party may file a written demand for a jury trial at least three days before the trial date. The demand must be accompanied by payment of a jury fee or by filing a sworn statement of inability to pay the jury fee. If a jury is properly demanded, a jury is empaneled and sworn in as in any other case. After hearing the evidence, the jury returns a verdict in favor of the plaintiff or the defendant. Tex. R. Civ. P. 510.7(b).
The justice of the peace cannot charge the jury but may grant a judgment notwithstanding the verdict. Tex. R. Civ. P. 504.3, 510.8(a). If no jury is timely demanded, the judge tries the case. Tex. R. Civ. P. 510.7(b).
The current jury fee is $22 unless otherwise provided by law. Tex. R. Civ. P. 504.1(b). If a party demands a jury trial but subsequently withdraws the demand, the case remains on the jury docket unless all parties agree to a bench trial. Tex. R. Civ. P. 504.1(c).
§ 34.10:7Judge to Develop Case
A judge may question both a witness and party and may summon any person or party to appear as a witness when the judge considers it necessary to ensure a correct judgment and speedy disposition. Tex. R. Civ. P. 500.6.
§ 34.10:8Written Answer Not Required
The defendant may file a written answer on or before the day set for trial but is not required to do so. Tex. R. Civ. P. 510.6(a).
§ 34.10:9Plaintiff’s Failure to Appear and Default Judgment
If the plaintiff fails to appear when a case is called for trial, the judge may postpone or dismiss the suit. Tex. R. Civ. P. 503.6(b).
If the defendant fails to file an answer before trial, fails to appear at trial, and proof of service complies with rule 510.4, the petition’s allegations must be taken as admitted and judgment by default rendered. Tex. R. Civ. P. 510.6(b), 503.6(c). If a defendant who has filed an answer fails to appear for trial, the court may render judgment based on the evidence. If the plaintiff fails to prove its case, judgment must be rendered against the plaintiff. Tex. R. Civ. P. 503.6(c).
To prevail in a forcible-detainer action, the plaintiff must show sufficient evidence of ownership to demonstrate a superior right to immediate possession. Villalon v. Bank One, 176 S.W.3d 66, 70 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). Superior right to immediate possession is typically demonstrated by the plaintiff proving (1) it owns the subject property by virtue of a foreclosure sale, (2) the defendant became a tenant at sufferance when the property was sold at foreclosure, (3) the plaintiff gave the defendant notice to vacate the premises, and (4) the defendant refused to vacate the premises. Elwell v. Countrywide Home Loans, Inc., 267 S.W.3d 566, 568–69 (Tex. App.—Dallas 2008, pet. dism’d w.o.j.).
Admitting a certified copy of the substitute trustee’s deed naming plaintiff as grantee of the property, a certified copy of the deed of trust foreclosed upon (containing tenant-at-sufferance language), and a notice to vacate and demand for possession (with proof of mailing via first-class and certified mail) are the most common elements for a plaintiff to meet its burden in a forcible-detainer trial.
If a jury returns a verdict, the judge may render judgment on the verdict or, if the verdict is contrary to the law or the evidence, enter a judgment notwithstanding the verdict. Tex. R. Civ. P. 510.8(a).
If the judgment is in favor of the plaintiff, the judge must render judgment to plaintiff for possession of the premises, costs, delinquent rent (if any) as of the date of entry of judgment, and attorney’s fees if recoverable by law. Tex. R. Civ. P. 510.8(b). If the judgment or verdict is in favor of the defendant, the judge must render judgment for the defendant and for costs and attorney’s fees against plaintiff if recoverable by law. Tex. R. Civ. P. 510.8(c).
A specific form of an eviction final judgment is not prescribed by the Texas Rules of Civil Procedure. However, a judgment must state the court’s determination of the rights of the parties, must state which party must pay the costs, and must be signed and dated on the date the judge signs the judgment. Tex. R. Civ. P. 505.1(c); Goebel v. Sharon Peters Real Estate, Inc., No. 03-14-00635-CV, 2015 WL 1778295 (Tex. App.—Austin Apr. 16, 2015, no pet.) (mem. op.). Texas law is clear: an agreed judgment in a forcible-detainer action is appealable to the county court. Mullins v. Coussons, 745 S.W.2d 50, 50–51 (Tex. App.—Houston [14th Dist.] 1987, no writ) (“[a]n agreed judgment in the justice court does not deprive the county court of jurisdiction to hear the case in a trial de novo”). See form 34-3 in this chapter.
§ 34.10:12Motion for New Trial
A motion for new trial is not allowed in an eviction proceeding. Tex. R. Civ. P. 510.8(e). Erroneous filing of a motion for new trial does not extend the period for appeal. RCJ Liquidating Co. v. Village, Ltd., 670 S.W.2d 643, 644 (Tex. 1984) (per curiam).
§ 34.10:13Motion to Reinstate and Motion to Set Aside Default Judgment
A party whose case is dismissed in a justice court proceeding may file a motion to reinstate within fourteen days of the dismissal order. Tex. R. Civ. P. 505.3(a). This general justice court provision also applies to eviction cases.
Unless a specific eviction statute found in Texas Rules of Civil Procedure 510.1 through 510.13 applies, the rules of civil procedure applying to all justice court proceedings are also applicable to eviction matters.
The general rules applicable to justice court cases allow a defendant in an eviction case to file a motion to set aside a default judgment for good cause. However, because there is no general provision allowing the delay of execution of a writ of possession, a defendant runs the risk that the writ will be executed while the motion to set aside a default is pending. RCJ Liquidating Co. v. Village, Ltd., 670 S.W.2d 643, 644 (Tex. 1984) (per curiam) (“No provision is made for delay in the event a motion for new trial is filed.”); Wetsel v. Fort Worth Brake, Clutch & Equipment, Inc., 780 S.W.2d 952 (Tex. App.—Fort Worth 1989, no writ) (motion for new trial in eviction was a nullity since rule 749 (now rule 510.8(e)) does not allow for new trial motions; thus appeal bond filed within five days of order denying new trial but more than five after original judgment was not timely).
§ 34.10:14Certiorari to County Court
Forcible-detainer actions are not removable from justice court to county court by writ of certiorari. Tex. R. Civ. P. 506.4(a); Tex. Civ. Prac. & Rem. Code § 51.002(a), (d); Chang v. Resolution Trust Corp., 814 S.W.2d 543, 544 (Tex. App.—Houston [1st Dist.] 1991, no writ).
The county court may issue a writ of mandamus to the justice court to enforce not only the county court’s jurisdiction but also other matters within the county court’s jurisdiction. Meridien Hotels, Inc. v. LHO Financing Partnership I, L.P., 97 S.W.3d 731, 736 (Tex. App.—Dallas 2003, no pet.).
A forcible-detainer judgment may be reviewed by a properly drafted bill of review setting forth a meritorious defense. See Rodriguez ex rel. Rodriguez v. EMC Mortgage Corp., 94 S.W.3d 795 (Tex. App.—San Antonio 2002, no pet.); Winrock Houston Associates Ltd. Partnership v. Bergstrom, 879 S.W.2d 144 (Tex. App.—Houston [14th Dist.] 1994, no writ).
For example: The court clerk gives the occupant wrong information about the answer date or trial date or an owner leads an occupant to believe the dispute is resolved, and as a result, the occupant does not answer the lawsuit and the owner obtains a default judgment. If the occupant discovers the default within five days after the appeal period runs, the occupant can attack the judgment by a bill of review in the justice court.
The statutory rules governing the execution of a writ of possession are detailed in Texas Property Code sections 24.0061 and 24.0062.
A landlord who prevails in an eviction suit is entitled to a judgment and writ of possession of the premises. However, the writ cannot be issued before the sixth day after the date the judgment for possession was rendered. Tex. Prop. Code § 24.0061(a), (b).
The court must notify a tenant in writing of a default judgment for possession by sending a copy of the judgment to the premises by first-class mail not later than forty-eight hours after the entry of judgment. Tex. Prop. Code § 24.0061(c).
The writ of possession must order the officer executing the writ to—
1.post a written warning of at least 8-1/2 by 11 inches on the exterior of the front door of the rental unit notifying the tenant the writ has been issued and the writ will be executed on or after a specific date and time stated in the warning but not sooner than 24 hours after the warning is posted; and
2.when the writ is executed—
(A)deliver possession of the premises to the landlord;
(B)instruct the tenant and all persons claiming under the tenant to leave the premises immediately, and, if the persons fail to comply, physically remove them;
(C)instruct the tenant to remove or to allow the landlord, the landlord’s representatives, or other persons acting under the officer’s supervision to remove all personal property from the rental unit other than personal property claimed to be owned by the landlord; and
(D)place, or have an authorized person place, the removed personal property outside the rental unit at a nearby location, but not blocking a public sidewalk, passageway, or street and not while it is raining, sleeting, or snowing.
The writ of possession must also authorize the officer to hire a bonded or insured warehouseman to remove and store all or part of the property at no cost to the landlord or the officer executing the writ. Tex. Prop. Code § 24.0061(e). The officer, however, cannot require the landlord to store the property. Tex. Prop. Code § 24.0061(f).
The writ of possession must also contain a notice that the officer is not liable for damages resulting from the execution of the writ if the officer executes it in good faith and with reasonable diligence. Tex. Prop. Code § 24.0061(g). A sheriff or constable is allowed to use reasonable force in executing a writ. Tex. Prop. Code § 24.0061(h).
§ 34.11:1Deadline to Issue Writ
A writ of possession may not issue more than sixty days after a judgment for possession is signed, but the court may extend the deadline for issuance to ninety days for “good cause.” See Tex. R. Civ. P. 510.8(d)(1).
§ 34.11:2Deadline to Execute Writ
A writ cannot be executed ninety days after a judgment for possession is signed. Tex. R. Civ. P. 510.8(d)(2).
A writ of possession cannot issue if an appeal is perfected and, if applicable, rent is paid into the court registry. Tex. R. Civ. P. 510.8(d)(3).
§ 34.11:4No Execution of Writ with Rain, Sleet, or Snow
A sheriff or constable may not execute a writ of possession by placing a tenant’s property outside the rental unit while it is raining, sleeting, or snowing. Tex. Prop. Code § 24.0061(d)(2)(D).
§ 34.11:5No Duty of Care on Part of Landlord for Property Removed under Writ of Possession
Under a valid writ of possession, a landlord has no duty to care for a tenant’s property properly removed from a dwelling unit. Campos v. Investment Management Properties, Inc., 917 S.W.2d 351, 354–55 (Tex. App.—San Antonio 1996, writ denied). However, denying a tenant access to the premises before the date a writ of possession may be issued may create a claim for damages. FDIC v. White, No. 13-08-00263-CV, 2011 WL 4998515 (Tex. App.—Corpus Christi–Edinburg Oct. 20, 2011, no pet.) (mem. op.) (upholding claim based on breach of settlement agreement giving former owner certain period to remove property from home).
§ 34.11:6Storage of Property; Use of Warehouseman
The sheriff or constable executing a writ has discretion to engage the services of a bonded or insured warehouseman to remove and store all or part of the property at no cost to the landlord or the officer executing the writ. Tex. Prop. Code § 24.0061(e). The officer may not require the landlord to store the property. Tex. Prop. Code § 24.0061(f).
If personal property is removed from a tenant’s premises and stored in a public warehouse, the warehouseman has a lien on the property to the extent of any reasonable storage and moving charges incurred by the warehouseman. Tex. Prop. Code § 24.0062(a). The officer executing the writ must notify the tenant of the removal and storage and describe the circumstances under which the tenant may redeem the property. See Tex. Prop. Code § 24.0062(b), (c). Any sale of property must be conducted in accordance with Texas Business and Commerce Code sections 7.210, 9.301, and 9.501. Tex. Prop. Code § 24.0062(j). The tenant may bring suit to recover the property before sale. See Tex. Prop. Code § 24.0062(i).
A private storage company may violate a tenant’s right to substantive due process by charging excessive fees to recover property once it has been removed from the premises. The officer executing the writ is not liable for a constitutional deprivation unless the officer is personally involved or there is a causal connection between the officer’s acts causing the constitutional deprivation. Merritt v. Harris County, 775 S.W.2d 17 (Tex. App.—Houston [14th Dist.] 1989, writ denied).
§ 34.11:7No Constable Liability for Good-Faith Execution
Constables are required to execute a writ of possession. See Tex. Prop. Code § 24.0061. They are under the control of the court in enforcing a court order. See Tex. Prop. Code § 24.0061. An officer who executes a facially valid writ of possession in good faith is not liable for damages resulting from the execution of the writ. Tex. Civ. Prac. & Rem. Code § 7.003(a).
§ 34.12Appeal of Justice Court’s Judgment
A justice court’s judgment may be appealed to a county court. Tex. Gov’t Code § 26.042(e); Tex. R. Civ. P. 510.9. The case in county court is tried de novo. Tex. R. Civ. P. 510.10(c).
A writ of possession cannot issue if an appeal is perfected and, if applicable, rent is paid into the court registry. Tex. R. Civ. P. 510.8(d)(3).
§ 34.12:1Effect of Appeal on Justice Court Judgment
Perfection of an appeal to the county court vacates and annuls the judgment of the justice court. Mullins v. Coussons, 745 S.W.2d 50, 50 (Tex. App.—Houston [14th Dist.] 1987, no writ).
Even if the county court appeal is subsequently dismissed for want of prosecution, the justice court’s judgment is a nullity. Poole v. Goode, 442 S.W.2d 810, 813 (Tex. App.—Houston [14th Dist.] 1969, writ ref’d n.r.e.).
Once a county court acquires jurisdiction by perfection of an appeal from a justice court, the county court tries the case de novo and cannot affirm, reverse, or remand the cause to the justice court. Villalon v. Bank One, 176 S.W.3d 66, 70 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (holding that county court properly refused to dismiss eviction suit on basis of occupant’s claim the justice court denied due process by failing to give notice of the trial setting in justice court).
Consequently, any errors in a justice court’s proceedings are moot. Coleman v. Bank of America, N.A., No. 06-11-00105-CV, 2012 WL 1940674 (Tex. App.—Texarkana May 30, 2012, no pet.).
§ 34.12:2Reinstatement of Justice Court Judgment
If the appellant of a justice court judgment fails to pay the county court filing fee or files an affidavit of inability to pay the filing fee within twenty days after being notified to do so by the county clerk, the appeal is deemed not perfected. Tex. R. Civ. P. 143a. In that case, the justice court judgment remains viable and enforceable.
However, if the justice court approves appeal on a pauper’s affidavit, the tenant is not required to pay a county court filing fee or file an additional pauper’s affidavit in county court. Tex. Prop. Code § 24.0052(e).
Within five days after the eviction judgment is signed, a party may appeal a justice court’s judgment in a forcible-detainer suit by filing a bond, making a cash deposit, or filing a sworn statement of inability to pay with the justice court. Tex. R. Civ. P. 510.9(a).
An appeal is perfected when, in accordance with the rules, the appellant files a bond, deposits the appropriate amount of cash into the court’s registry, or files a statement of inability to pay. Tex. R. Civ. P. 510.9(f).
§ 34.12:5Time Calculations for Appeals
Texas Rule of Civil Procedure 500.5 applies to the computation of time in eviction cases. However, if a document is filed by mail but is not received by the court by the due date, the court may take any action authorized by the rules, including issuing a writ of possession. Tex. R. Civ. P. 510.2.
§ 34.12:6Amount of Appeal Bond
The justice court judge must set the amount of the appeal bond to include the items enumerated in Texas Rule of Civil Procedure 510.11. Tex. R. Civ. P. 510.9(b).
Texas Rule of Civil Procedure 510.11 references damages a party may suffer for withholding or defending possession of the premises during the appeal and reasonable attorney’s fees incurred in the justice and county courts, if attorney’s fees are properly recoverable. See Tex. R. Civ. P. 510.11. Courts generally have considerable discretion in setting bond amounts. Northwest Bank v. Garrison, 874 S.W.2d 278, 281 (Tex. App.—Houston [1st Dist.] 1994, no writ).
§ 34.12:7Failure to Timely File Appeal Bond
If the appeal bond is not timely filed, the county court is without jurisdiction to hear the appeal, and the appeal should be dismissed for lack of jurisdiction. Searcy v. Sagullo, 915 S.W.2d 595, 597 (Tex. App.—Houston [14th Dist.] 1996, no writ) (non-forcible-detainer appeal from justice court to county court).
§ 34.12:8Defective Appeal Bond
If a party filing an appeal makes an error or files the wrong instrument required to perfect the appeal, the appeal cannot be dismissed without giving the appellant an opportunity to correct the error. Grand Prairie Independent School District v. Southern Parts Imports, Inc., 813 S.W.2d 499 (Tex. 1991) (per curiam) (appeals from district court to appellate courts); Ashley Furniture Industries, Inc. v. Law Office of David Pierce, 311 S.W.3d 595, 599 (Tex. App.—El Paso 2010, no pet.) (notice from opposing party that bond was not twice amount of judgment constituted sufficient notice of defect to give appellant five days to correct appeal bond; failure to do so resulted in dismissal of appeal).
§ 34.12:9Filing Fee in County Court When Tenant Files Appeal Bond
When an appellant files an appeal bond the appellant must also pay the county court filing fee to the county clerk. Almahrabi v. Booe, 868 S.W.2d 8, 10 (Tex. App.—El Paso 1993, no writ) (holding that justice court appeal bond does not satisfy filing fee required by rule 143a unless appeal bond is sufficiently large to cover both appeal bond amount and county court filing fee).
§ 34.12:10Appeal via Statement of Inability to Pay or Pauper’s Affidavit
Contents of Statement of Inability to Pay: A sworn statement of inability to pay must contain the information set forth in Texas Property Code section 24.0052 and Texas Rules of Civil Procedure 502.3(b) and 510.9(c). See Tex. Prop. Code § 24.0052; Tex. R. Civ. P. 502.3(b), 510.9(c).
Notice to Other Parties Required: The court must provide notice to all other parties within one business day that a party has filed a statement of inability to pay. Tex. R. Civ. P. 510.9(d).
Interest on Lawyers’ Trust Accounts Certificate: When an indigent party is represented by an attorney providing pro bono legal services through a program funded by the Interest on Lawyers’ Trust Accounts (IOLTA) program, the attorney may file an IOLTA certificate confirming the IOLTA screened the indigent party for income eligibility under the IOLTA guidelines. Tex. R. Civ. P. 502.3(c).
Contest of Statement of Inability to Pay: A statement of inability to pay may be contested by the opposing party or the judge within five days after receiving notice the statement was filed. Tex. R. Civ. P. 502.3(d), 510.9(c)(2).
No Contest When IOLTA Certificate Filed:A party’s statement of inability to pay accompanied by an attorney’s IOLTA certificate may not be contested. Tex. R. Civ. P. 502.3(c), 510.9(c)(2).
Receipt of Government Entitlement Based on Indigence: If a statement of inability to pay attests to receipt of a government entitlement based on indigence (for example, subsidized housing, public housing, food stamps, or supplemental security income), the statement can be contested only on the veracity of the attestation. Tex. R. Civ. P. 502.3(d).
Contest by Judge: Regardless of whether the opposing party contests the statement of inability to pay, the judge may conduct a hearing to determine the ability to pay. If the judge determines an appealing party has the ability to pay, the judge must enter a written order listing the reasons for the determination and set a deadline for payment. Tex. R. Civ. P. 502.3(d).
Appeal If Contest Sustained: If a challenge to a statement of inability to pay is sustained, the appellant may appeal the decision by filing notice with the justice court within five days of that court’s written order. The justice court must then forward all related documents to the county court for resolution. The county court must set the matter for hearing within five days and hear the contest de novo. If the appeal is granted, the county court must direct the justice court to transmit to the clerk of the county court the transcript, records, and papers of the case. Tex. R. Civ. P. 510.9(c)(3).
If No Appeal or If Appeal Overruled: If the appellant does not appeal the ruling sustaining the contest or if the county court denies the appeal, within one business day, the appellant may post an appeal bond or make a cash deposit in compliance with the rule. Tex. R. Civ. P. 510.9(c)(4).
Waiver of Right to Appeal on Statement of Inability to Pay by Delay: If the occupant fails to obtain a hearing in county court within five days on appeal of a pauper’s affidavit denial, the occupant effectively waives the right to appeal on the pauper’s affidavit for failure to comply with Tex. R. Civ. P. 510.9(c)(3). Weber v. James, No. 03-10-00668-CV, 2012 WL 3156144 (Tex. App.—Austin Aug. 2, 2012, no pet.) (mem. op.) (discussing former rule 749a).
§ 34.13Trial De Novo before County Court
The judgment of a justice court may be appealed to a county court. Tex. Gov’t Code § 26.042(e); Tex. R. Civ. P. 510.9. The case is tried de novo in county court and is presented in its entirety as if there were no previous trial. Tex. R. Civ. P. 510.10(c).
§ 34.13:1County Court Jurisdiction on Appeal Limited to Justice Court Jurisdiction
The appellate jurisdiction of the county court is confined to the jurisdictional limits of the justice court. The county court has no jurisdiction on appeal unless the justice court had jurisdiction. Goggins v. Leo, 849 S.W.2d 373, 375 (Tex. App.—Austin 1993, no writ).
§ 34.13:2Effect of Appeal on Justice Court Judgment
Once an appeal is perfected, the justice court judgment is vacated. Villalon v. Bank One, 176 S.W.3d 66, 69–80 (Tex. App.—Houston [1st Dist.] 2004, pet. denied); In re Garza, 990 S.W.2d 372, 374 (Tex. App.—Corpus Christi–Edinburg 1999, orig. proceeding).
§ 34.13:3Dismissal by County Court—Effect
If the county court dismisses a suit for want of prosecution or if the plaintiff nonsuits the case, dismissal of the appeal amounts to a dismissal of the entire cause of action, leaving the matter as if no suit had ever been filed. Bryant v. U.S. Bank National Ass’n, No. 05-11-00121-CV, 2012 WL 4845660, at *1 (Tex. App.—Dallas Oct. 10, 2012, no pet.) (county court dismissal of forcible-detainer action did not adversely affect tenant’s rights because dismissal has same effect as if suit had never been filed); In re Garza, 990 S.W.2d 372, 374 (Tex. App.—Corpus Christi–Edinburg 1999, orig. proceeding).
However, if an appeal is dismissed by the county court because an appeal was not properly perfected, the dismissal acts as a dismissal of only the appeal, and the judgment of the justice court remains as a valid judgment. Meyers v. Belford, 550 S.W.2d 359 (Tex. App.—El Paso 1977, no writ).
§ 34.13:4County Court Filing Fee on Appeal
If the appellant does not pay the filing fee in county court within twenty days after being notified to do so by the county clerk, the clerk must return all papers to the justice of the peace, who must proceed as though no appeal had been attempted. Tex. R. Civ. P. 143a. The appellant must pay the county court filing fees even if the appellant has filed an appeal bond in justice court. Almahrabi v. Booe, 868 S.W.2d 8, 10 (Tex. App.—El Paso 1993, no writ).
Unless the court directs otherwise, notice by the clerk to the appellant must comply with Texas Rule of Civil Procedure 21a, which requires notice in person, by fax, by e-mail, or by registered or certified mail. See DePue v. Henderson, 801 S.W.2d 178 (Tex. App.—Houston [14th Dist.] 1990, no writ) (reversing county court judgment dismissing appeal in forcible-detainer lawsuit for failure to pay filing fee because appellant did not receive notice of costs).
When a party is represented by an attorney who has made an appearance, all communications from the court or the clerk must be sent to the party’s attorney. See Tex. R. Civ. P. 8, 21a; Morin v. Boecker, 122 S.W.3d 911 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.) (reversing county court dismissal under Texas Rule of Civil Procedure 143a for failure to timely pay court costs because clerk sent notice requesting payment of court fees within twenty days to tenants and not to their attorney of record).
§ 34.13:5Filing Fee in County Court and Appeal on Pauper’s Affidavit
When the justice court approves the tenant’s affidavit of inability to pay costs of appeal or an appeal bond, the tenant is not required to pay the county court’s filing fee or file an additional affidavit of inability to pay in the county court. Tex. Prop. Code § 24.0052(e).
If the tenant files an appeal bond, the tenant must also pay the county court filing fee. Almahrabi v. Booe, 868 S.W.2d 8, 10 (Tex. App.—El Paso 1993, no writ) (holding that justice court appeal bond does not also satisfy filing fee required by Texas Rule of Civil Procedure 143a unless appeal bond is sufficiently large to cover both appeal bond amount and county court filing fee).
§ 34.13:6Written Answer Required on Appeal
If the defendant filed a written answer in justice court, it constitutes an appearance and answer in the county court and may be amended as in other cases. A defendant who filed no written answer in justice court must file a written answer in county court within eight days after the transcript is filed; otherwise a default judgment can be entered. Tex. R. Civ. P. 510.12.
Filing of a pauper’s affidavit by a pro se occupant constitutes an answer in county court at law. Hughes v. Habitat Apartments, 860 S.W.2d 872, 873 (Tex. 1993) (per curiam). A pro se occupant who appeals by filing a pauper’s affidavit but who fails to file a written answer is entitled to notice of a hearing on a motion for default judgment. Hughes, 860 S.W.2d at 873.
A timely letter signed by a pro se defendant that identifies the parties, the case, and the defendant’s current address serves as an answer and deserves notice of any subsequent proceedings. Guadalupe Economic Services Corp. v. Dehoyos, 183 S.W.3d 712, 716 (Tex. App.—Austin 2005, no pet.).
In Okpala v. Coleman, 964 S.W.2d 698 (Tex. App.—Houston [14th Dist.] 1998, no writ), a default judgment was reversed for an occupant’s failure to file a formal answer because the occupant had appeared by filing discovery requests.
§ 34.13:7Record on Appeal; Docketing; Trial De Novo
When an appeal has been perfected, all further proceedings on the judgment are stayed, and the justice court must immediately send the clerk of the county court a certified copy of all docket entries, a certified copy of the bill of costs, and the original papers in the case together with any money in the court registry, including sums tendered pursuant to Texas Rule of Civil Procedure 510.9(c)(5)(B). Tex. R. Civ. P. 510.10(a).
If the justice of the peace refuses to forward the necessary documents, the justice (not the clerk of the justice court) is subject to a mandamus action in county court. Polk v. Braddock, 864 S.W.2d 78, 80 (Tex. App.—Dallas 1992, no writ).
The county clerk must docket the case and immediately notify the parties of the date of receipt of the transcript and the docket number of the case. The notice must advise the defendant that if a written answer was not filed in the justice court, the defendant must file a written answer in the county court within eight days. Tex. R. Civ. P. 510.10(b).
The case must be tried de novo in the county court. A trial de novo is a new trial in which the entire case is presented as if there had been no previous trial. The trial, as well as any hearings and motions, is entitled to precedence in the county court. Tex. R. Civ. P. 510.10(c).
§ 34.13:8Trial and Hearings Entitled to Precedence
The general rule for trial settings in civil cases is Texas Rule of Civil Procedure 245, which provides that the court may set a contested case for trial the first time upon reasonable notice of not less than forty-five days to the parties.
However, in forcible-detainer suits in county court, the trial and all hearings and motions are governed by Texas Rules of Civil Procedure 510.1 through 510.12. Rule 510.12 states, “An eviction case appealed to county court will be subject to trial at any time after the expiration of 8 days after the date the transcript is filed in the county court.” Tex. R. Civ. P. 510.12.
Given the unique rules governing forcible entry and detainer, as well as the purpose of those rules to affect a speedy resolution of entitlement to possession of property, several Texas appellate courts have determined that rule 510.12 preempts rule 245. Abend v. Federal National Mortgage Ass’n, 466 S.W.3d 884, 885 n.1 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
However, other courts have applied rule 245 to eviction matters without any discussion of rule 510.12 or its predecessor. Raines v. Gomez, 118 S.W.3d 875, 877 (Tex. App.—Texarkana 2003, no pet.) (reversing for failure of trial court to provide proper notice of trial setting under rule 245); Johnson v. Mohammed, No. 03-10-00763-CV, 2013 WL 1955862, at *4–5 (Tex. App.—Dallas Dec. 30, 2010, pet. dism’d w.o.j.) (mem. op.) (finding error to set forcible-entry-and-detainer case for trial with less than rule 245 notice period, but error not preserved).
§ 34.13:9Jury Demand in County Court
While Texas Rule of Civil Procedure 216(a) generally requires that a party demand a jury trial within a “reasonable time” before the date of the trial and not less than thirty days before trial, rule 510.12 provides that the trial may be held at any time eight days after the transcript is filed. The tension between the rules has created issues on timeliness.
In Pease v. Federal National Mortgage Ass’n, No. 03-12-00074-CV, 2012 WL 4872724 (Tex. App.—Austin Oct. 11, 2012, no pet.) (mem. op.), the appellate court upheld the denial of a jury demand filed fifty-seven days after the appeal was filed and trial had been set on the nonjury docket, although the jury demand had been filed eight days before the scheduled trial date. The court held an instructed verdict would have been justified, and thus denial of a jury trial was harmless. The court noted if the request was deemed timely, the refusal was harmless because the Texas Supreme Court has held a refusal to grant a jury trial is harmless if the record shows that no material issues of fact exist and an instructed verdict would have been justified. Pease, 2012 WL 4872724, at *2.
In Brown v. Apex Realty, 349 S.W.3d 162 (Tex. App.—Dallas 2011, pet. denied), the appellate court upheld the denial of jury trial as untimely based on the following dates: August 10, 2009—Brown files notice of appeal in justice of the peace court; September 9—Brown appears for hearing, and county court sets trial for September 14; September 14—Brown requests continuance, and court resets case to September 24; September 23—Brown files jury demand; September 24—court denies request for jury demand. The appellate court was unwilling to say the trial court abused its discretion in striking a jury demand filed one day before the scheduled trial date. Brown, 349 S.W.3d at 167.
Similarly, in Cantu v. Federal National Mortgage Ass’n, No. 02-11-00293-CV, 2012 WL 955363, at *2 (Tex. App.—Fort Worth Mar. 22, 2012, no pet.) (mem. op.), the appellate court upheld the trial court’s denial of a jury trial when the tenant requested the jury trial one day before the trial and twenty-seven days after notice of the nonjury setting.
However, in Maxwell v. U.S. Bank National Ass’n, No. 14-12-00209-CV, 2015 WL 3580621, at *6 (Tex. App.—Houston [14th Dist.] July 11, 2013, pet. dism’d w.o.j.) (mem. op.), the Houston court of appeals concluded that although the county court erred by denying the defendant’s jury request in an eviction case, it was harmless error because an instructed verdict against the defendant would have been proper.
If a court grants a jury request in a postforeclosure forcible-detainer action, the plaintiff should promptly file (and the court should grant) a motion in limine seeking to exclude evidence concerning the foreclosure sale by whichever plaintiff claims possession. See Martin v. Federal National Mortgage Ass’n, No. 05-15-00210-CV, 2016 WL 3568040 (Tex. App.—Dallas June 30, 2016, pet. dism’d w.o.j.) (mem. op.) (holding trial court did not abuse its discretion in granting Fannie Mae’s motion in limine excluding testimony concerning Fannie Mae’s purported failure to comply with certain provisions of the deed of trust when foreclosing on the property).
A directed verdict is proper if there is no probative evidence to raise a fact issue on the material questions presented. Szczepanik v. First Southern Trust Co., 883 S.W.2d 648 (Tex. 1994).
In Loving v. Federal National Mortgage Ass’n, No. 05-15-00624-CV, 2016 WL 3517643 (Tex. App.—Dallas June 24, 2016, no pet.) the Dallas court of appeals considered whether a directed verdict in favor of Fannie Mae on its claim for possession was proper when the defendant in the eviction case argued the foreclosure sale was improper. To establish an immediate right of possession, Fannie Mae had the burden of proving (1) it had a right to possession of the property, (2) the defendant’s right of possession had ended, and (3) the defendant refused to vacate. Fannie Mae introduced into evidence (1) the substitute trustee’s deed, showing Fannie Mae’s purchase of the property at the foreclosure sale; (2) the deed of trust, showing the defendant’s tenant-at-sufferance status following the foreclosure sale; and (3) the notices to vacate, establishing Fannie Mae gave the required notice to vacate. Loving, 2016 WL 3517643, at *1. The court noted that the defendant tacitly conceded she refused to vacate the property and remained in possession. Therefore, the court found the evidence established Fannie Mae’s immediate right to possession of the property. The defendant’s testimony regarding wrongful foreclosure did not create a fact issue concerning Fannie Mae’s right to possession. Consequently, the trial court did not err in directing a verdict in Fannie Mae’s favor. Loving, 2016 WL 3517643, at *3.
On appeal to county court, the parties may recover “damages, if any, suffered for withholding or defending possession of the premises during the pendency of the appeal.” Tex. R. Civ. P. 510.11. This type of claim is ancillary to the forcible-detainer suit and must be asserted in the eviction proceedings and not later in an independent lawsuit. Haginas v. Malbis Memorial Foundation, 354 S.W.2d 368 (Tex. 1962).
Pursuant to Texas Rule of Civil Procedure 510.11, damages may include, but are not limited to, loss of rents during the pendency of the appeal and attorney’s fees in the justice and county courts proceedings, provided the requirements of Texas Property Code section 24.006 are met. Tex. R. Civ. P. 510.11. The damages are limited to those expenses and losses relating to maintaining or obtaining possession of the premises. Hanks v. Lake Towne Apartments, 812 S.W.2d 625, 626 (Tex. App.—Dallas 1991, writ denied). Damages include reasonable attorney’s fees. Mastermark Homebuilders, Inc. v. Offenburger Construction, Inc., 857 S.W.2d 765, 767 (Tex. App.—Houston [14th Dist.] 1993, no writ).
Costs awarded by the trial court are ancillary to the forcible-detainer suit. Tex. R. Civ. P. 510.11. Because costs are ancillary to the eviction suit, an occupant may not recover costs in a suit for wrongful eviction. Burns v. Johnson, 491 S.W.2d 692 (Tex. App.—Waco 1973).
Texas Rule of Civil Procedure 510.11 allows for recovery of attorney’s fees on appeal provided the requirements of Texas Property Code section 24.006 are met. Tex. R. Civ. P. 510.11. The right to recover attorney’s fees incurred by a party in prosecuting or defending an eviction must be asserted in the eviction suit. A party may not maintain an independent suit, such as a wrongful eviction suit, for such fees after the eviction suit. Tallwater v. Brodnax, 156 S.W.2d 142, 144 (Tex. 1941).
In Mastermark Homebuilders, Inc. v. Offenburger Construction, Inc., 857 S.W.2d 765 (Tex. App.—Houston [14th Dist.] 1993, no writ), the court held that a tenant who had not sought fees in justice court could seek attorney’s fees in county court. In so holding, the Mastermark court rejected the arguments that (1) attorney’s fees could not be recovered in county court since the tenant had not sought fees in justice court; and (2) fees may not be recovered if the tenant is not in possession of the property at the time of trial in county court. Mastermark, 857 S.W.2d at 768.
The county court may award attorney’s fees accruing in the justice court and the county court, without regard to the jurisdiction of the justice court. Carlson’s Hill Country Beverage v. Westinghouse Road Joint Venture, 957 S.W.2d 951, 955–56 (Tex. App.—Austin 1997, no pet.).
Attorney’s fees may not be awarded in a forcible-detainer case in absence of evidence supporting the fees awarded. Bruce v. Federal National Mortgage Ass’n, 352 S.W.3d 891, 894 (Tex. App.—Dallas 2011, pet. denied) (reversing fee award for lack of evidence).
In addition to proving fees by testimony at trial, a party may prove up fees by affidavit in accordance with the procedure set forth in Texas Civil Practice and Remedies Code sections 18.001 and 18.002. Rodriguez v. Citimortgage, Inc., No. 03-10-00093-CV, 2011 WL 182122, at *6 (Tex. App.—Austin Jan. 6, 2011, no pet.) (mem. op.) (concluding in eviction cases, the trial court may not take judicial notice of the reasonableness of attorney’s fees because eviction actions are not one of the claims under Texas Civil Practice and Remedies Code section 38.001 for which judicial notice of reasonable fees may be taken).
To prevail and obtain possession in its forcible-detainer action, the law requires a plaintiff to show (1) it owns the property by virtue of a foreclosure sale, (2) the defendant became a tenant at sufferance when the property was sold under the deed of trust, (3) the plaintiff gave proper notice to vacate the premises, and (4) the defendant refused to vacate the premises. See Tex. Prop. Code §§ 24.002(a)(2), (b), 24.005; U.S. Bank, N.A. v. Freeney, 266 S.W.3d 623, 625 (Tex. App.—Dallas 2008, no pet.).
In support of its case in chief or a motion for summary judgment in a postforeclosure eviction, plaintiffs most often rely on three documents: (1) the foreclosed deed of trust, (2) the substitute trustee’s deed, and (3) the notices to vacate sent to the defendants and occupants of the subject property.
Generally the borrower’s deed of trust signed by all persons obligated for the debt provides that if the property is sold at foreclosure, the borrower or any person holding possession of the property through the borrower must surrender possession of the premises immediately. If possession is not surrendered, the borrower or any other person in possession becomes a tenant at sufferance and may be removed by writ of possession. A substitute trustee’s deed shows the plaintiff purchased the property at the foreclosure sale; therefore, the plaintiff is entitled to possession of the property pursuant to the tenant-at-sufferance clause contained in the deed of trust. Moreover, the notices to vacate provide proof of proper notice that plaintiff required the occupants to vacate the premises. See Tex. Prop. Code §§ 24.002(b), 24.005.
Unlike justice of the peace courts, county courts at law are courts of record. Thus, the rules of evidence apply. Fortunately, a trustee’s deed and deed of trust are documents recorded in the real property records of the county in which the subject property is located. A file-stamped copy of an instrument filed in the real property records is self-authenticated under Texas Rule of Evidence 902(4). Kyle v. Countrywide Home Loans, Inc., 232 S.W.3d 355, 362 n.2 (Tex. App.—Dallas 2007, pet. denied); Murphy v. Countrywide Home Loans, Inc., 199 S.W.3d 441, 445 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). In addition, certified copies of recorded instruments are also self-authenticating under the rules of evidence. Tex. R. Evid. 902(4) (certified copies of public records are self-authenticating); Tower v. Bank of America, N.A., No. 03-14-00404-CV, 2015 WL 4508687, at *2 (Tex. App.—Austin July 22, 2015, no pet.) (mem. op.).
As detailed below, a notice to vacate is most often offered into evidence via a business records affidavit of a duly authorized employee of the mortgage servicer, the plaintiff’s law firm, or an affiliated service provider.
§ 34.13:15Business Records Affidavits
The most common method of admitting copies of the notice to vacate and demand for possession into the evidentiary record is to submit them to the court via a business records affidavit.
The business records exception to the hearsay rule has four requirements: (1) the records were made and kept in the course of a regularly conducted business activity, (2) it was the regular practice of the business activity to make the records, (3) the records were made at or near the time of the event they memorialize, and (4) the records were made by a person with knowledge who was acting in the regular course of business. In re EAK, 192 S.W.3d 133, 141 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). An affidavit of the custodian of records or a “qualified witness” may be presented at trial with the business records to establish that the records satisfy these requirements and to render them self-authenticated. Tex. R. Evid. 803(6), 902(10). To be a “qualified witness,” the affiant must have personal knowledge of the business’ recordkeeping practices or of the facts contained within the business records. Tex. R. Evid. 602, 803(6), 902(10); In re EAK, 192 S.W.3d at 144.
In Rodriguez v. Citimortgage, Inc., No. 03-10-00093-CV, 2011 WL 182122, at *5 (Tex. App.—Austin Jan. 6, 2011, no pet.) (mem. op.), the court held that an employee of Citimortgage’s outside law firm, which had custody of all records related to the suit, including documents obtained from and kept by Citimortgage in its regular course of business, could properly attest to the documents obtained from Citimortgage, as well as the certified mail receipt, as business records.
However, not only can a person working for the prosecuting law firm provide a proper business records affidavit, any person with personal knowledge of the facts and recordkeeping practices of the record keeper can provided a business record affidavit. Singha v. Federal National Mortgage Ass’n, No. 05-13-01518-CV, 2015 WL 1477930, at *2 (Tex. App.—Dallas Mar. 31, 2015, no pet.) (mem. op.). The Amarillo court of appeals found the trial court did not abuse its discretion in admitting the notice to vacate over the defendant’s objection when the business records affidavit was made by an employee of the foreclosure sale purchaser with personal knowledge of the bank’s records and recordkeeping practices. Allen v. Comerica Bank, No. 07-16-00018-CV, 2016 WL 4291488, at *3 (Tex. App.—Amarillo Aug. 11, 2016, no pet.) (mem. op.).
§ 34.13:16County Court Judgment and Issuance of Writ of Possession
Based on the terms of a judgment, a county court clerk may issue a writ of possession for execution by the sheriff or constable. Tex. R. Civ. P. 510.13. However, the writ may be stayed if, within ten days after judgment is entered, the appellant files a supersedeas bond in an amount set by the county court pursuant to Texas Property Code section 24.007 and Texas Rule of Civil Procedure 510.13. In re Mata, No. 14-12-00460-CV, 2012 WL 1857092, at *1 (Tex. App.—Houston [14th Dist.] May 18, 2012, orig. proceeding) (mem. op.).
§ 34.14Judgment and Further Appeal
A final judgment of a county court in an eviction suit may not be appealed on the issue of possession unless the premises were used for residential purposes only. Tex. Prop. Code § 24.007; Carlson’s Hill Country Beverage v. Westinghouse Road Joint Venture, 957 S.W.2d 951, 952–53 (Tex. App.—Austin 1997, no pet.). However, if additional relief is granted other than the right of possession, the judgment can be appealed on the other grounds. Salaymeh v. Plaza Centro, LLC, 264 S.W.3d 431 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
A writ of possession may not be stayed by the appeal of an eviction judgment “under any circumstances” unless the appellant files a supersedeas bond in an amount determined by the county court within ten days of entering the judgment. Tex. Prop. Code § 24.007. Importantly, a supersedeas bond is not automatically set as part of the eviction judgment. Instead, the defendant must request the court set a supersedeas bond. Bell v. Mortgage Electronic Registration Systems, Inc., No. 05-06-00427-CV, 2007 WL 914759, at *3 (Tex. App.—Dallas Mar. 28, 2007, no pet.) (mem. op.) (tenant did not request that trial judge set supersedeas bond amount, and thus trial judge did not err in not doing so).
In setting the supersedeas bond, the county court must provide protection for the appellee as in any other appeal by taking into consideration the value of rents likely to accrue during appeal, damages that may occur as a result of the stay during appeal, and any other appropriate damages or amounts. See Tex. Prop. Code § 24.007; Whitmire v. Greenridge Place Apartments, 333 S.W.3d 255 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d) (upholding $10,000 supersedeas bond where tenant’s monthly rent was $850; noting that tenant did not seek to reduce the bond based on his net worth and tenant remained in possession during appeal); McCartney v. California Mortgage Service, 951 S.W.2d 549, 550 (Tex. App.—El Paso 1997, no pet.) (upholding $19,000 bond in forcible-detainer appeal in which occupants had maintained possession of property for almost four years without making mortgage payments and property had fair monthly rental value of $700); Hughes v. Habitat Apartments, 828 S.W.2d 794 (Tex. App.—Dallas 1992, no writ) (reducing bond by amount of anticipated attorney’s fees on appeal).
The trial court may not include anticipated appellate attorney’s fees in setting the amount of the supersedeas bond. A supersedeas bond is not intended to provide security for damages that have not been finally determined by the trial court. Hughes, 828 S.W.2d at 795.
§ 34.14:2Appellate Review of Supersedeas Bond Orders
Appellate courts may review the sufficiency or excessiveness of a supersedeas bond and issue any temporary orders necessary to preserve the parties’ rights. See Tex. R. App. P. 24.4; In re Bell, No. 02-12-00390-CV, 2012 WL 5356302 (Tex. App.—Fort Worth Nov. 1, 2012, orig. proceeding) (mem. op.) (granting petition for writ of mandamus and vacating county court judgment directing clerk to disburse supersedeas bond although tenant vacated property and damage issues remained). A party must have a reporter’s record or a written objection to the court reporter’s failure to record the proceeding to preserve a supersedeas bond appeal. Reyes v. Credit Based Asset Servicing & Securitization, 190 S.W.3d 736, 740 (Tex. App.—San Antonio 2005, no pet.) (holding that appellant waived right to complain about $20,000 supersedeas bond because of failure to have court reporter transcribe hearing).
§ 34.14:3Failure to Post Supersedeas Bond
If a supersedeas bond is not set and posted within the statutory ten-day period, execution of the writ of possession is not stayed. Phillips v. Branch Bank & Trust Co., No. 03-11-00461-CV, 2012 WL 424875, at *1 (Tex. App.—Austin Feb. 1, 2012, no pet.) (dissolving temporary stay of execution of writ of possession and denying emergency motion for stay because defendant did not file supersedeas bond). Merely filing a motion contesting the amount of a supersedeas bond and a statement of inability to pay costs within ten days of the judgment does not stay the judgment pending appeal. Booth v. Kondaur Capital Corp., No. 01-16-00188-CV (Tex. App.—Houston [1st Dist.] June 21, 2016, order).
Though a supersedeas bond must be posted to suspend enforcement of the writ of possession, filing a notice of appeal perfects the appeal, and posting bond is not a prerequisite to appellate jurisdiction. Marshall v. Housing Authority of City of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006). The failure to file a supersedeas bond effectively eliminates the right to appeal the issue of possession because the writ of possession remains enforceable during the appeal. If an occupant loses any right to possession of the premises, an appeal becomes moot regardless of whether possession is actually lost by enforcement of the writ or the tenant voluntarily surrenders the premises. Wilhelm v. Federal National Mortgage Ass’n, 349 S.W.3d 766 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (when supersedeas bond is not posted and writ of possession is executed in favor of landlord, action is moot because tenant no longer has claim to possession of property); Marshall, 198 S.W.3d at 787 (when tenant voluntarily surrendered possession and lease term had expired, tenant had no claim to possession of premises, and issue of possession was moot).
Forcible-detainer actions are expedited proceedings; therefore, there is little if any pretrial discovery. Consequently a trial judge may require a prompt response and applicable case law to prevail on the many issues and arguments that can be presented at trial. A collection of common issues that frequently surface at trial are presented below, along with relevant law that addresses each issue.
§ 34.15:1Alleged Defects in Foreclosure Process
One of the most common defenses brought in a postforeclosure eviction action is whether the plaintiff acquired title and possession of the property through an alleged wrongful foreclosure. However, in a forcible-detainer suit, the justice court (or county court on appeal) determines only who is entitled to immediate possession of the property. Whether the plaintiff acquired title in a defective foreclosure is the subject of an independent lawsuit. Villalon v. Bank One, 176 S.W.3d 66, 71 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
Courts of appeal consistently allow forcible-detainer actions to proceed without regarding whether the party seeking possession complied with the terms of the deed of trust but rather on a tenancy-at-sufferance clause in a deed of trust. See, e.g., Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 558–59 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.).
A challenge to the validity of a foreclosure sale does not deprive the justice or county court of jurisdiction. Dormady, 61 S.W.3d at 558 (addressing deed of trust creating tenancy at sufferance when property is sold under the deed and concluding the dispute whether sale complied with deed of trust was “of no consequence” to issue of immediate possession); Elwell v. Countrywide Home Loans, Inc., 267 S.W.3d 566, 568–69 (Tex. App.—Dallas 2008, pet. dism’d w.o.j.); Rice v. Pinney, 51 S.W.3d 705 (Tex. App.—Dallas 2001, no pet.) (discussing deed of trust creating tenancy at sufferance when property is “sold under this [deed]” and holding that challenge to validity of foreclosure sale in district court did not preclude forcible-detainer suit in justice court).
§ 34.15:2Notice of Foreclosure
An alleged lack of proper notice of foreclosure does not raise a title issue sufficient to defeat forcible-detainer jurisdiction. Reynolds v. Wells Fargo Bank, N.A. ex rel. Freemont Investment & Loan, 245 S.W.3d 57, 60 (Tex. App.—El Paso 2008, no pet.).
§ 34.15:3Appointment of Substitute Trustee
Whether the trustee named as grantee in the trustee’s deed was properly appointed or had the authority to sell the property, or any other issue allegedly making the underlying foreclosure sale void, is “outside of the scope of a forcible detainer case.” Kaldis v. Aurora Loan Services, No. 01-09-00270-CV, 2010 WL 2545614, at *3 (Tex. App.—Houston [1st Dist.] June 24, 2010) (mem. op.).
§ 34.15:4Assignment Chain/Chain of Title
In a forcible-detainer action, it is not necessary to join every link in the chain of title from the deed of trust to the substitute trustee’s deed. Reardean v. Federal Home Loan Mortgage Corp., No. 03-12-00562-CV, 2013 WL 4487523, at *3 (Tex. App.—Austin Aug. 14, 2013, no pet.) (mem. op.). Inquiries into the validity of the foreclosure sale are specifically prohibited by statute. Hornsby v. Secretary of Veterans Affairs, No. 05-11-01075-CV, 2012 WL 3525420, at *3 (Tex. App.—Dallas Aug. 16, 2012, no pet.) (mem. op.); Stephens v. Federal Home Loan Mortgage Corp., No. 02-10-00251-CV, 2011 WL 1532384, at *2 (Tex. App.—Fort Worth Apr. 21, 2011, no pet.) (holding Freddie Mac was not required to “connect the dots” between original lender and mortgage servicer regarding title); Deubler v. Bank of New York Mellon, No. 02-10-00125-CV, 2011 WL 1331540, at *2 (Tex. App.—Fort Worth Apr. 7, 2011, no pet.) (mem. op.) (holding party was not required to present evidence establishing linkage between deed of trust and substitute trustee’s deed to establish superior right to possession).
§ 34.15:5Bankruptcy Filed during Foreclosure
An inquiry into whether a bankruptcy automatic stay was in place when a foreclosure sale occurred relates to the status of title and should not be considered by the court in a postforeclosure forcible-detainer proceeding. American Homes 4 Rent Properties One, LLC v. Ibarra, No. 05-13-00973-CV, 2014 WL 3212843, at *2 (Tex. App.—Dallas July 8, 2014, no pet.).
§ 34.15:6Intervening Third-Party Purchaser
When a mortgagor executes a deed of trust, legal and equitable title in the property are severed. The mortgagor retains the legal title, and the mortgagee holds equitable title. Flag-Redfern Oil Co. v. Humble Exploration Co., 744 S.W.2d 6, 8 (Tex. 1987). If the mortgagor sells or transfers the mortgagor’s right, title, and interest in the property to an intervening purchaser, the new purchaser’s rights are subject to the mortgagee’s equitable rights contained in the deed of trust granted by the mortgagor. Foreclosure of the deed of trust passes all of the intervener’s rights in the property to the foreclosure sale purchaser. Motel Enterprises, Inc. v. Nobani, 784 S.W.2d 545, 547 (Tex. App.—Houston [1st Dist.] 1990, no writ) (foreclosure under valid deed-of-trust lien has effect of passing all right, title, and interest that mortgagor held at time deed of trust was executed, free and clear of rights of any subsequent purchaser).
Thus, any rights an intervening purchaser may claim from the mortgagor by a quitclaim deed, warranty deed, sheriff’s sale deed, or the like after a deed of trust was executed by the mortgagor are subject to foreclosure of the mortgagor’s deed of trust and the rights of the subsequent foreclosure sale purchaser. Ford v. U.S. Bank, N.A., No. 01-07-00183-CV, 2008 WL 4670514, at *3 (Tex. App.—Houston [1st Dist.] Oct. 23, 2008, no pet.) (mem. op.).
If a deed of trust creates a landlord-tenant relationship by deeming anyone holding possession of property a tenant at sufferance after foreclosure (including an intervening purchaser of the mortgagor’s interest in the property), the “landlord-tenant relationship provides a basis for determining the right to immediate possession without resolving the ultimate issue of title to the property.” U.S. Bank, N.A. v. Farhi, No. 05-07-01539-CV, 2009 WL 4670514, at *4 (Tex. App.—Dallas Aug. 7, 2009, no pet.) (mem. op.); Ford, 2008 WL 4670514, at *3.
§ 34.15:7Probate Proceedings during Foreclosure Process
In Garza v. Wells Fargo Bank, N.A., No. 05-14-01578-CV, 2016 WL 3136150 (Tex. App.—Dallas June 2, 2016, no pet.) (mem. op.), the court considered a postforeclosure forcible-detainer action where the daughter of the deceased mortgagor moved into the mortgagor’s property and filed an application to determine heirship. While the heirship proceeding was pending, the mortgagee, Wells Fargo, foreclosed on the mother’s deed of trust and began a postforeclosure eviction. The daughter argued the opening of a probate estate suspends the power of sale in the deed of trust and by filing an application to determine heirship it also suspended the power of sale, relying on Pearce v. Stokes, 291 S.W.2d 309 (Tex. 1956). Therefore, the daughter reasoned the foreclosure sale deed was void. The court held that because the foreclosed-upon deed of trust contained the requisite provision making the daughter a tenant at sufferance upon foreclosure, the trial court maintained jurisdiction to consider the issue of immediate possession and the daughter’s allegations the trustee’s foreclosure deed was void due to the pending probate proceeding was immaterial. Summary judgment was awarded to the mortgagee, the foreclosure sale purchaser. Garza, 2016 WL 3136150, at *2.
Either before or during the eviction proceeding, it is common to find that the foreclosed mortgagor has filed a separate action in state district court contesting the validity of the foreclosure sale. The foreclosed mortgagor then argues the judge should abate the forcible-detainer action until the district court suit is concluded.
While it is true that determining the right to immediate possession necessarily requires resolution of a title dispute and a justice or county court has no jurisdiction to enter a judgment concerning the validity of title in a forcible-detainer action, the Texas legislature has established a system expressly designed to decide the two issues separately. Rice v. Pinney, 51 S.W.3d 705, 710 (Tex. App.—Dallas 2001, no pet.); Scott v. Hewitt, 90 S.W.2d 816, 818–19 (Tex. 1936). The Texas Supreme Court has also held a forcible-detainer action is “not exclusive, but cumulative” of other remedies a party may have. Thus a party may pursue both a forcible-detainer action in justice court and a suit to quiet title in district court. Scott, 90 S.W.2d at 819. In the subsequent decades, appellate courts have consistently relied on Scott, holding a forcible-detainer action in justice court may be prosecuted concurrently with title disputes in district court. See, e.g., Kassim v. Carlisle Interests, Inc., 308 S.W.3d 537, 541 (Tex. App.—Dallas 2010, no pet.); Breceda v. Whi, 224 S.W.3d 237, 240 (Tex. App.—El Paso 2005, no pet.); Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 558 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.); Young Women’s Christian Ass’n of Austin, Tex. v. Hair, 165 S.W.2d 238, 241–42 (Tex. App.—Austin 1942, writ ref’d w.o.m.).
In Scott, the Texas Supreme Court observed the legislature intended forcible-detainer proceedings to be “a summary, speedy, and inexpensive remedy for the determination of who is entitled to possession of premises.” Scott, 90 S.W.2d at 818. Permitting parties to abate forcible-detainer actions simply by filing suit in district court would frustrate that legislative intent. Rice, 51 S.W.3d at 711 (“To hold . . . that the filing of a concurrent suit in district court challenging the validity of the substitute trustee deed precludes a forcible-detainer suit in justice court would ignore the long-established legislative scheme of parallel resolution of immediate possession and title issues.”); In re Mandola, No. 03-11-00816-CV, 2012 WL 43365, at *1 (Tex. App.—Austin Jan. 4, 2012, orig. proceeding) (mem. op.).
Because the remedies in a forcible detainer are cumulative, a court having jurisdiction of an eviction suit in which only possession is disputed should neither abate the proceeding in deference to an ongoing title dispute in another court nor transfer the eviction suit to the court in which such a dispute is pending. See It’s The Berrys, LLC v. Edom Corner, LLC, 271 S.W.3d 765 (Tex. App.—Amarillo 2008, no pet.); Meridien Hotels, Inc. v. LHO Financing Partnership I, L.P., 97 S.W.3d 731 (Tex. App.—Dallas 2003, no pet.).
If a justice court abates the eviction proceeding, the appropriate court may issue mandamus to require the justice court to proceed with the eviction suit. In re American Homes for Rent Properties Eight, LLC, 498 S.W.3d 153, 157 (Tex. App.—Dallas 2016, orig. proceeding) (mem. op.); Meridien, 97 S.W.3d at 738–39 (holding that justice court abused its discretion in abating eviction suit until finalization of district court proceedings seeking declaration that tenant was in default and that county court properly issued mandamus to require justice court to proceed to trial on issue of possession).
§ 34.15:10Persons Not Party to Mortgage Are Still Subject to Tenant-at-Sufferance Clause
Following foreclosure, even an occupant of the property that was not a party to the foreclosed note or deed of trust is subject to a tenant-at-sufferance clause in the foreclosed security instrument. This is because a grantor “cannot convey more than he has.” Pinnacle Premier Properties, Inc. v. Breton, 447 S.W.3d 558, 564 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Thus, a grantor subject to a tenant-at-sufferance clause cannot convey an interest in the property free of the clause. Because the foreclosed-upon mortgagor encumbered its interest in the property with a deed of trust containing a tenant-at-sufferance clause, any party claiming a derivative interest in the property is also subject to the deed of trust’s restrictions. Pinnacle Premier Properties, 447 S.W.3d at 564.
§ 34.15:11Statute of Limitations
Forcible-detainer suits are subject to a two-year statute of limitations beginning from the date possession of the property is refused. Tex. Civ. Prac. & Rem. Code § 16.003. For a host of reasons, a postforeclosure plaintiff may opt to file suit months, if not years, after the property is sold at foreclosure. In this situation, eviction defendants often argue the eviction suit is barred by limitations. See Federal Home Loan Mortgage Corp. v. Pham, 449 S.W.3d 230 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
However, a forcible-detainer cause of action accrues each time a person refuses to surrender possession of real property after a person entitled to possession delivers proper written notification to vacate. Massaad v. Wells Fargo Bank National Ass’n, No. 03-14-00202-CV, 2015 WL 410514, at *1 (Tex. App.—Austin Jan. 30, 2015, no pet.) (mem. op.) (each refusal to surrender possession of real property on written demand for possession constitutes new forcible detainer). In Massaad, the appellant’s sole issue on appeal was that the suit was barred by limitations because the appellant refused to comply with Wells Fargo’s first notice to vacate sent more than two years before Wells Fargo filed suit. The court concluded that the suit was timely filed because Wells Fargo provided another notice to vacate a few weeks before filing suit, and Texas Property Code section 24.002 provides each refusal to surrender possession of the premises after receiving a proper notice to vacate “constitutes a new forcible detainer.” Massaad, 2015 WL 410514, at *1.
A similar conclusion is found in other cases. See, e.g., Custer v. Wells Fargo Bank, N.A., No. 03-15-00362-CV, 2016 WL 1084165, at *3 (Tex. App.—Austin Mar. 18, 2016, pet. dism’d w.o.j.) (mem. op.) (concluding limitations did not bar action for forcible detainer brought within two years of subsequent notice to vacate and affirming judgment granting writ of possession); Montenegro v. Wells Fargo Bank, N.A., No. 03-13-00123-CV, 2015 WL 3543055, at *4 (Tex. App.—Austin June 3, 2015, pet. dism’d) (mem. op.) (concluding a “forcible-detainer action accrues each time a person refuses to surrender possession of real property after a person entitled to possession delivers proper written notification to vacate”).
To succeed on the affirmative defense of res judicata or claim preclusion, a defendant must prove that the current action is based on the same claims raised or could be raised in a prior action. Travelers Insurance Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
If, after an adverse judgment in a forcible-detainer action, a plaintiff makes a new written demand for possession of the real property that complies with the notice-to-vacate requirements, a subsequent forcible-detainer action could not be based on the same claims raised or which could have been raised in the prior action. See Tex. Prop. Code §§ 24.002, 24.005; Federal Home Loan Mortgage Corp. v. Pham, 449 S.W.3d 230, 235–36 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
§ 34.15:13Removal to Federal Court
In the last few years, following foreclosure sales, a number of former homeowners have removed the subsequent eviction suits to federal court. The most common claims for removal include (1) a federal question because the plaintiff violated a federal statute, (2) a federal question because of due process violations, and (3) diversity jurisdiction because the alleged amount in controversy is the value of the property.
Federal courts routinely remand these cases back to state court. See, e.g., HSBC Bank USA National Ass’n v. Shavers, No. H-13-0694, 2013 WL 181761 (S.D. Tex. Apr. 29, 2013) (mem. op.) (remanding postforeclosure eviction suit to state court); U.S. Bank, N.A. v. Rudd, No. 3:10-CV-2440-L, 2011 WL 539120, at *4 (N.D. Tex. Feb. 7, 2011) (remanding because former owner did not produce evidence that value of right to occupy property exceeded $75,000); Wells Fargo Bank v. Jones, 733 F. Supp. 2d 741, 742–43 (N.D. Tex. 2010) (remanding eviction suit because no federal question, and former owner failed to prove diversity of citizenship and failed to show that value of right to occupy property exceeded $75,000).
Another common defense in a postforeclosure eviction action is that the plaintiff lacks standing to bring suit because the plaintiff provided no proof the sale by which it claims possession was validly conducted. This defense often arises when the eviction defendant has a separate suit pending in another court contesting the title and the foreclosure sale.
“Standing is a component of subject-matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit.” In re I.I.G.T., 412 S.W.3d 803, 805 (Tex. App.—Dallas 2013, no pet.). The plaintiff in a lawsuit has the burden of alleging facts, which if taken as true, affirmatively demonstrate a court’s jurisdiction to hear a case. Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 248 (Tex. App.—Dallas 2005, no pet.). A person has standing if (1) the person has sustained, or is in immediate danger of sustaining, some direct injury as a result of the defendant’s wrongful act; (2) there is a direct relationship between the alleged injury and the claim being adjudicated; (3) the person has a personal stake in the controversy; (4) the challenged action has caused some injury in fact, either economic, recreational, environmental, or otherwise; or (5) the person is an appropriate party to assert the public’s interest in the matter, as well as the person’s own. Asshauer v. Wells Fargo Foothill, 263 S.W.3d 468, 471 (Tex. App.—Dallas 2008, pet. denied).
The Dallas court of appeals has held that a plaintiff in a postforeclosure forcible-detainer action sufficiently demonstrates standing by alleging the following: (1) the plaintiff acquired the property at a foreclosure sale; (2) the defendant, or any person holding possession of the property through the defendant, was a tenant at sufferance once the property was sold at the foreclosure sale; and (3) the defendant refused to vacate after notices to vacate the property were delivered. Federal National Mortgage Ass’n v. Ephriam, No. 05-13-00984-CV, 2014 WL 2628036, at *3 (Tex. App.—Dallas June 12, 2014, no pet.) (mem. op.).
§ 34.15:15Timing of Eviction Notice
In the recent case of Onabajo v. Household Finance Corp. III, No. 03-15-00251-CV, 2016 WL 3917140 (Tex. App.—Austin July 14, 2016, no pet.) (mem. op.), the Austin court of appeals examined whether a plaintiff waited the requisite period of time after sending a three-day notice to vacate before filing its suit for forcible detainer.
The evidence included a notice to vacate dated October 8, 2014, and attached was a United States Postal Service (USPS) tracking report showing that the letter arrived at the USPS facility in Houston (the location of Household’s counsel) on October 15, 2014, and was delivered in Austin (the location of the property) on October 17, 2014. Notably, and perhaps most important to the holding, the appellate record established the notice to vacate was not mailed by Household’s counsel until October 14, 2014—despite being dated October 8, 2014. Onabajo, 2016 WL 3917140, at *3–4.
Household filed suit for forcible detainer on October 17, 2014, the same day the USPS tracking report reflected the notice to vacate was delivered. Onabajo, 2016 WL 3917140, at *4.
On appeal, Household relied on the mailbox rule and the holding in Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987), for the position notice was timely given because the notice was mailed by certified and first-class mail and, as a result, “there existed a presumption that the notice was duly received by the addressee.”
The appellate court declined to comment on the mailbox rule’s applicability to forcible-detainer actions. However, the court noted that even if the mailbox rule applied, Household failed to show the statutorily required notice period had not yet expired when Household instituted its forcible-detainer action on October 17. Onabajo, 2016 WL 3917140, at *5.
Onabajo demonstrates that it is best to send notices to vacate via first-class and certified mail and document the date and manner by which those notices were sent. This is best achieved by including the certified mail number on the notice to vacate and also by stating that the notice is being sent via first-class mail. Make a photocopy of the face of both mailers with postage affixed before depositing them in the mail. Have the case manager or office employees handling the eviction execute an affidavit of mailing. Rushing to file suit without verifying the status of the notice to vacate can be fatal to the success of the suit. Never assume notice is received. Track the status of the certified mailer via the USPS website, https://tools.usps.com/go/TrackConfirmAction. Also monitor incoming mail for the return of either the first-class or certified mailer. If the first-class mailer is not returned, under Texas law the three-day mailbox rule may apply. In an abundance of caution, add an additional three days to that (via the notice to vacate and demand for possession) before filing the complaint. If the certified mailer is received before that period, adjust the calculations accordingly and perhaps file suit sooner. Unfortunately, the postal service may take much longer to update the information within its track-and-confirm database. Additionally, if the first-class mailer gets returned, there is no presumption of receipt. In that case, it is highly advisable to have the client check to determine if the property is vacant. First-class mailers are commonly returned when the property is vacant and when no forwarding information is left. Also, check to verify the notice contained the correct address. If an eviction is still necessary, the other noticing methods identified in Texas Property Code section 24.005, such as hand delivery or posting, may be used.