      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-13-00123-CV



               Francis Williams Montenegro and Lynda Williams, Appellants

                                                 v.

   Wells Fargo Bank, N.A., successor by merger to Wells Fargo Bank, Minnesota, N.A.,
   as Trustee f/k/a Norwest Bank Minnesota, N.A., as Trustee for the Structured Asset
 Securities Corporation Amortizing Residential Collateral Trust Mortgage Pass-Through
                         Certificates, Series 2002-BC8, Appellee


           FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY,
        NO. C-1-CV-12-006182, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                              MEMORANDUM OPINION


               Francis Williams Montenegro and Lynda Williams appeal a trial-court summary

judgment in a forcible-detainer suit awarding Wells Fargo Bank, N.A. possession of real property

(the Property) in Travis County. In several issues, appellants contend that they were denied due

process, that the county court did not have jurisdiction, that limitations barred the suit, and that

Wells Fargo was not entitled to judgment as a matter of law. For the following reasons, we affirm

the trial court’s judgment.


                                        BACKGROUND

               Vinh Nguyen purchased the Property in 2002 and executed a note and deed of trust

to secure financing for the purchase. The deed of trust contained the following provision: “If the

Property is sold pursuant to this Section 22 [providing for acceleration and sale upon default],
Borrower or any person holding possession of the Property through Borrower shall immediately

surrender possession of the Property to the purchaser at that sale. If possession is not surrendered,

Borrower or such person shall be a tenant at sufferance and may be removed by writ of possession

or other court proceeding.” About a year later, Nguyen (purportedly through his attorney-in-fact)

conveyed the property to Montenegro without authorization from the lienholder. At some point in

2007, Nguyen and/or Montenegro defaulted in making payments on the deed of trust and, pursuant

to the terms of Nguyen’s original note and deed of trust, the trustee for the original deed of trust sold

the Property. Wells Fargo purchased it at the trustee’s sale and recorded its substitute trustee’s deed.

                 On the same day of Wells Fargo’s purchase, Montenegro filed a lawsuit in the

district court of Travis County challenging the validity of the foreclosure and trustee’s sale and

to quiet title in his name. In that action, the district court granted Wells Fargo’s summary-judgment

motion and, in a final judgment rendered in February 2012, denied all of Montenegro’s requested

relief and ordered that he take nothing by his suit.1 Meanwhile, on June 18, 2010 Wells Fargo

provided the occupants2 of the Property with a notice to vacate and then filed a forcible-detainer

action in the justice court on August 12, 2010. See Tex. Gov’t Code § 27.031 (justice court has

original jurisdiction of cases of forcible detainer); Tex. Prop. Code § 24.004 (justice court in precinct

in which real property is located has jurisdiction in eviction suits). After Wells Fargo prevailed in

that action, Montenegro and Williams appealed to the county court, which granted Wells Fargo’s

motion for summary judgment.

        1
          Montenegro appealed to the Seventh Court of Appeals, which affirmed the judgment. See
Montenegro v. Ocwen Loan Servicing, LLC, 419 S.W.3d 561 (Tex. App.—Amarillo 2013,
pet. denied).
        2
            The Property has been occupied by Lynda Williams and her son since July 2003.

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                                           DISCUSSION

Jurisdiction

                Forcible detainer is a procedure to determine the right to immediate possession of

real property when there is no unlawful entry and is intended to be a speedy, simple, and inexpensive

procedure for obtaining possession without resorting to a suit on the title. Williams v. Bank of

New York Mellon, 315 S.W.3d 925, 926 (Tex. App.—Dallas 2010, no pet.); see also Tex. R. Civ.

P. 510.3(e) (only issue before justice court in eviction cases is “right to actual possession and not

title”). A forcible-detainer action will lie when a person in possession of real property refuses to

surrender possession on demand if the person is a tenant at will or by sufferance, “including

an occupant at the time of foreclosure of a lien superior to the tenant’s lease.” See Tex. Prop. Code

§ 24.002(a); Jaimes v. Federal Nat’l Mortg. Ass’n, No. 03–13–00290–CV, 2013 WL 7809741, at *1

(Tex. App.—Austin Dec. 4, 2013, no pet.); Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas

2001, no pet.). The sole issue in a forcible-detainer suit is who has the right to immediate possession

of the premises. Rice, 51 S.W.3d at 709. To prevail, the plaintiff in a forcible-detainer suit need not

prove title but must only show sufficient evidence of ownership demonstrating a superior right to

immediate possession. Id. However, where the right to immediate possession necessarily requires

resolution of a title dispute, the justice court has no jurisdiction to enter a judgment and may be

enjoined from so doing. Haith v. Drake, 596 S.W.2d 194, 196 (Tex. Civ. App.—Houston [1st Dist.]

1980, writ ref’d n.r.e.).

                In their first issue, appellants contend that the county court did not have

jurisdiction over this forcible-detainer action because the right to immediate possession of

the Property necessarily requires resolution of a title dispute, over which neither the justice court


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nor the county court had jurisdiction. Goggins v. Leo, 849 S.W.2d 373, 375 (Tex. App.—Houston

[14th Dist.] 1993, no writ) (county court hearing appeal of forcible-detainer action “is confined to

the jurisdictional limits of the justice court”); see also Tex. Gov’t Code § 27.031(b)(4) (justice court

has no jurisdiction to adjudicate title to land); Aguilar v. Weber, 72 S.W.3d 729, 731

(Tex. App.—Waco 2002, no pet.) (county court hears appeals of forcible-detainer actions de novo

and has no jurisdiction over appeal unless justice court had jurisdiction). The threshold jurisdictional

question is whether the county court was required to determine an issue of title to resolve the right

to immediate possession. Aguilar, 72 S.W.3d at 732.

                Appellants make various complaints about the alleged title dispute here: that the

foreclosure sale was defective, that Lynda Williams has a title claim by adverse possession,3 and that

there is no landlord-tenant relationship between appellants and Wells Fargo because appellants did

not acquire their interest in the Property through Nguyen.4 They contend that summary judgment

in favor of Wells Fargo was improper because these title issues had to be resolved before the issue

of possession. But where, as here, a foreclosure under a deed of trust establishes a landlord and

tenant-by-sufferance relationship between the parties, there is an independent basis to determine

       3
          While appellants alleged the affirmative defense of adverse possession for the first time
in a motion filed after the summary-judgment hearing, they neither attached nor referenced
any evidence in the record sufficient to raise a fact issue on the theory. See Brownlee v. Brownlee,
665 S.W.2d 111, 112 (Tex. 1984) (burden is on nonmovant to adduce evidence raising material fact
issue on each element of affirmative defense); see also Tex. Civ. Prac. & Rem. Code § 16.024
(person must bring suit to recover real property held by another in peaceable and adverse possession
under title or color of title no later than three years after cause of action accrues).
       4
           We reject appellants’ contention that they did not possess the Property “through” Nguyen.
It is indisputable that Nguyen (through his attorney-in-fact) sold the Property to Montenegro and that
Williams occupies the Property with Montenegro’s awareness and consent. Furthermore, appellants
do not identify any evidence in the record demonstrating that Montenegro acquired the Property
“through” anyone else.

                                                   4
the issue of immediate possession without resolving any issue of title to the property. Schlichting

v. Lehman Bros. Bank FSB, 346 S.W.3d 196, 199-200 (Tex. App.—Dallas 2011, pet. dism’d). This

is so even if a party alleges defects in the foreclosure and sale of the property, as “[a]ny defects in

the foreclosure process or with the purchaser’s title may not be considered in a forcible detainer

action.”5 Id; Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 471 (Tex. App.—Dallas 2010,

pet. dism’d w.o.j.).

                Because the deed of trust permitted nonjudicial foreclosure and because the

foreclosure under the deed of trust created a landlord and tenant-by-sufferance relationship between

the parties, it was not necessary to resolve any alleged title dispute to determine the right of

immediate possession. Richards v. US Bank Nat’l Ass’n, No. 03–13–00590–CV, 2015 WL 657896,

at *2 (Tex. App.—Austin Feb. 11, 2015, no pet.). The justice and county courts had jurisdiction

over Wells Fargo’s forcible-detainer action. Accordingly, we overrule appellants’ first issue.


Propriety of summary judgment

                To establish forcible detainer and prevail on its motion for summary judgment,

Wells Fargo had to establish the following as a matter of law: (1) it was the owner, (2) appellants

were occupants at the time of the foreclosure, (3) the foreclosure was of a lien superior to

appellants’ right to possession, (4) it made a statutorily sufficient written demand for possession, and

(5) appellants refused to leave. See Tex. Prop. Code § 24.002; Murphy v. Countrywide Home Loans,


        5
           Moreover, we note that appellants previously challenged the validity of the substitute
trustee’s deed in their wrongful-foreclosure and quiet-title action in the district court, which held that
the foreclosure was properly conducted and which the appellate court affirmed in its conclusion that
there was “no summary judgment evidence raising a genuine issue of material fact as to a defect in
the foreclosure proceedings.” Montenegro, 419 S.W.3d at 569.

                                                    5
Inc., 199 S.W.3d 441, 445 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). In their next three

issues, appellants contend that Wells Fargo failed to establish the first, third, and fourth elements of

its claim. With respect to the first and third elements, Wells Fargo was not required to prove up title

but only to provide sufficient evidence of ownership to determine that its right to possession was

superior to appellants’ right. Leo, 849 S.W.2d at 377.

                Wells Fargo attached to its summary-judgment motion certified copies of Nguyen’s

2002 deed of trust, the 2003 general warranty deed wherein Nguyen conveyed the Property to

Montenegro, the 2007 substitute trustee’s deed granting the Property to Wells Fargo following

foreclosure, and the 2010 notice to vacate that it sent to the occupants of the Property. This evidence

was sufficient to establish the first and third elements as a matter of law. See Murphy, 199 S.W.3d

at 446 (substitute trustee’s deed and deed of trust sufficient to establish ownership and superior right

to possession); Cervantes v. Bayview Loan Servicing, LLC, No. 14–12–00157–CV, 2012 WL

6017712, at *2 (Tex. App.—Houston [14th Dist.] Dec. 4, 2012, no pet.) (earlier recorded deed of

trust and lien thereunder of predecessor is superior to later-recorded contract for deed).

                With respect to the fourth element, appellants contend that Wells Fargo’s notice was

deficient because it failed to provide them with ninety days to vacate before filing its eviction action.

See Tex. Prop. Code § 24.005(b) (if occupant is tenant by sufferance, landlord must give tenant at

least three days’ written notice to vacate; if property is purchased at trustee’s foreclosure sale

under lien superior to tenant’s lease and tenant timely pays rent and is not in default, purchaser

must give at least thirty days’ notice to vacate). Wells Fargo’s notice provided that the occupants

had three days to vacate the Property but further provided that “if you are a tenant or subtenant

who rented the Property before the foreclosure sale, then you must vacate the Property within ninety

                                                   6
(90) days.” Appellants argue that Williams was a tenant under a previous lease with Montenegro

(and not just a tenant by sufferance) and was, therefore, entitled to the longer ninety days that

Wells Fargo provided in its notice.

               As previously discussed, the original deed of trust stated that, upon a foreclosure sale,

Nguyen or any person holding possession of the Property through him would become a tenant by

sufferance if possession were not surrendered. Despite appellants’ contention that Williams was a

tenant under a lease, they have failed to identify any evidence in the record creating a fact issue on

her status as a tenant other than by sufferance—for instance, testimony or documentary evidence

demonstrating a lease or rental payments and terms. In the absence of any such evidence, the

deed of trust and substitute trustee’s deed were sufficient to establish that appellants were tenants

by sufferance as a matter of law and entitled to no more than a three-day notice. We hold that the

trial court did not err in determining that Wells Fargo had proven the notice element of its

forcible-detainer action. We overrule appellants’ issues two through four.


Limitations

               In their fifth issue, appellants argue that Wells Fargo’s forcible-detainer action was

barred by the two-year statute of limitations and that the trial court erred in granting Wells Fargo

summary judgment. See Tex. Civ. Prac. & Rem. Code § 16.003 (cause of action for forcible detainer

must be filed within two years of date it accrues). Appellants assert that Wells Fargo’s cause

accrued on November 13, 2007, the date after which appellants failed to vacate the property after

Wells Fargo provided them with its first notice to vacate, and Wells Fargo’s present action was filed

on August 12, 2010, well after the limitations period had expired.


                                                  7
                Wells Fargo rejoins that, if its cause of action accrued in November 2007 upon

appellants’ failure to vacate, the limitations period was tolled pending the outcome of the

district-court title suit filed by appellants in 2007. However, we need not reach Wells Fargo’s tolling

argument because we and our sister courts have previously determined that 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. See Massaad v. Wells Fargo Bank Nat’l

Ass’n, No. 03–14–00202–CV, 2015 WL 410514, at *1 (Tex. App.—Austin Jan. 30, 2015, no pet.)

(each refusal to surrender possession of real property on written demand for possession constitutes

new forcible detainer); Federal Home Loan Mortg. Corp. v. Pham., 449 S.W.3d 230, 235-36

(Tex. App.—Houston [14th Dist.] 2014, no pet.) (same). Therefore, a new limitations period began

running as a result of Wells Fargo’s June 18, 2010 eviction notice. Accordingly, its eviction suit

filed in the justice court just a few months later was well within the limitations period. We overrule

appellants’ fifth issue.


Due process

                In their last issue, appellants assert that because Williams was not a party to the title

dispute previously adjudicated in district court, she is in danger of losing her home without

having had her “day in court” and will be deprived of her property without due process of law. See

U.S. Const. amend. XIV, § 1.; Tex. Const. art. I, § 19; Benson v. Wanda Petroleum Co., 468 S.W.2d

361, 363 (Tex. 1971) (res judicata did not bar person’s suit and right to “day in court” where she was

not party or in privity with party in prior action); see also University of Tex. Med. School v. Than,




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901 S.W.2d 926, 930 (Tex. 1995) (due process imposes as minimum requirement that parties must

be afforded notice and opportunity to be heard at meaningful time and in meaningful manner).

               As we have already discussed, any title issues that Williams contends still remain are

simply irrelevant to the right to immediate possession, where the substitute trustee’s deed and the

status of appellants as tenants by sufferance constitute an independent basis to determine the right

to immediate possession, which is the only issue in this suit. Therefore, the allegation that she did

not have her “day in court” in the previous title litigation is irrelevant to her due-process rights in

this action. Montenegro represented himself and Williams in this action and filed a response, a

reply, and objections to the motion for summary judgment on their behalf. Additionally, appellants

were provided notice of the hearing on the motion for summary judgment and were given

two continuances of the hearing. We hold that there was no violation of Williams’s due process, and

we overrule appellants’ sixth issue.


                                          CONCLUSION

               The county court had jurisdiction over this action and did not err in granting summary

judgment in favor of appellee. Accordingly, we affirm the county court’s final judgment.



                                               _____________________________________________

                                               Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Pemberton and Bourland

Affirmed

Filed: June 3, 2015



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