                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00312-CV


JAMES ALLEN MCGUIRE                                                APPELLANT

                                       V.

FANNIE MAE A/K/A FEDERAL                                             APPELLEE
NATIONAL MORTGAGE
ASSOCIATION


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          FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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      James Allen McGuire, pro se, appeals the county court‘s award of

possession of 902 Rusk Drive, Euless, Texas to Fannie Mae a/k/a Federal

National Mortgage Association. We will affirm the county court‘s judgment.




      1
      See Tex. R. App. P. 47.4.
                                Background Facts

      In 1995, McGuire purchased the Rusk Drive residence and executed a

deed of trust encumbering the property in favor of First Preference Mortgage.

When McGuire failed to make his mortgage payments, First Preference‘s

successor-in-interest Wells Fargo sold the property to Fannie Mae at a

nonjudicial foreclosure sale. Fannie Mae then filed a petition for forcible detainer

in the justice of the peace court.     A trial was held and the court rendered

judgment in favor of Fannie Mae.

      McGuire appealed to the county court, which tried the case de novo. See

Tex. R. Civ. P. 749, 751. At trial, Fannie Mae submitted the deed of trust, the

substitute trustee‘s deed showing that Fannie Mae acquired the property at a

foreclosure sale on April 5, 2011, and the notice to McGuire to vacate. McGuire

objected to the substitute trustee‘s deed on the grounds that Fannie Mae had not

perfected its chain of title and that he was concurrently contesting legal title in a

separate action in our court. The county court admitted the substitute trustee‘s

deed over McGuire‘s objection. The county court then rendered judgment in

favor of Fannie Mae. McGuire now appeals to this court.

                                Forcible Detainer

      In a forcible detainer action, the only issue the trial court determines is

whether the party seeking to obtain possession is entitled to actual and

immediate possession, and the merits of whether a party has title shall not be

determined. See Tex. R. Civ. P. 746; Black v. Wash. Mut. Bank, 318 S.W.3d


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414, 416 (Tex. App.—Houston [1st Dist.] 2010, pet. dism‘d w.o.j.); Williams v.

Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.—Dallas 2010, no pet.).

Thus, questions over whether a sale of property encumbered by a deed of trust is

invalid ―must be brought in a separate suit.‖ Williams, 315 S.W.3d at 927; Rice v.

Pinney, 51 S.W.3d 705, 710 (Tex. App.—Dallas 2001, no pet.). ―To prevail in a

forcible detainer action, a plaintiff is not required to prove title, but is only required

to show sufficient evidence of ownership to demonstrate a superior right to

immediate possession.‖ Rice, 51 S.W.3d at 709. A court may determine which

party has a superior right to possession without determining title when a landlord-

tenant relationship exists between the parties. Id. at 712. The existence of the

landlord-tenant relationship provides a basis for determining the right to

possession without resolving the issue of who owns the property. See Salaymeh

v. Plaza Centro, LLC, 264 S.W.3d 431, 436 (Tex. App.—Houston [14th Dist.]

2008, no pet.) (stating that in a forcible detainer action, a landlord-tenant

relationship presents ―an independent basis on which the trial court [can]

determine the right to immediate possession without resolving underlying title

issues‖); Brown v. Kula-Amos, Inc., No. 02-04-00032-CV, 2005 WL 675563, at *3

(Tex. App.—Fort Worth 2005, no pet.) (mem. op.) (noting that a forcible detainer

action based on contract for deed depends upon landlord-tenant relationship and

that contract for deed may provide for party to become tenant at sufferance upon

default).




                                            3
                                    Discussion

      On appeal, McGuire argues that the county court was without jurisdiction

to hear the case for two reasons. First, McGuire claims that Fannie Mae does

not have standing because the substitute trustee‘s deed is ―ineligible and

unlawful.‖ He argues that the deed of trust ―clearly shows that [he] was the

equitable owner of title,‖ and because he did not convey title to Fannie Mae,

Fannie Mae‘s substitute trustee‘s deed ―should be considered a ‗wild deed‘

without force.‖

      The deed of trust that Fannie Mae submitted at trial shows that McGuire

granted First Preference a lien on the property to secure payment of a note and

includes a provision that if McGuire defaulted on the note and the property was

sold at a foreclosure sale, McGuire would become a tenant at sufferance. This

kind of provision in a deed of trust is generally sufficient to establish a landlord-

tenant relationship between the mortgagor and the purchaser of the property at a

foreclosure sale. See Scott v. Hewitt, 127 Tex. 31, 90 S.W.2d 816, 818 (1936).

As stated above, such a relationship provides a basis for determining the right to

possession without resolving the issue of who owns the property.                See

Salaymeh, 264 S.W.3d at 436.

      Fannie Mae submitted a substitute trustee‘s deed showing that it

purchased the property from First Preference‘s successor-in-interest Wells Fargo

at a foreclosure sale on April 5, 2011. Fannie Mae‘s status as grantee under the

substitute trustee‘s deed is sufficient to confer standing on Fannie Mae to assert


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a forcible detainer action regarding the property. See Morris v. Am. Home Mortg.

Servicing, Inc., No. 01-09-00768-CV, 2011 WL 1631762, at *2 (Tex. App.—

Houston [1st Dist.] Apr. 28, 2011, no pet.) (overruling appellant‘s standing

argument when appellee demonstrated a landlord-tenant relationship through

substitute trustee‘s deed). The landlord-tenant relationship between Fannie Mae

and McGuire, established by the substitute trustee‘s deed, provided the basis for

the trial court‘s finding of Fannie Mae‘s superior right to possession. See id.;

Shutter v. Wells Fargo Bank, 318 S.W.3d 467, 471 (Tex. App.—Dallas 2010, pet.

dism‘d w.o.j.) (op. on reh‘g) (holding that the bank demonstrated its right to

possession of property because tenant-at-sufferance relationship existed).

      Second, McGuire argues that he was contesting legal title in a separate

action and until title was resolved, the trial court could not award possession.

The existence of a title dispute will not deprive a justice court of jurisdiction in a

forcible detainer action unless the right to possession cannot be determined

without resolving the title issue. Rice, 51 S.W.3d at 713. Thus, McGuire was

required to demonstrate that the title dispute prevented the county court from

determining right to possession, depriving it of jurisdiction over the action. See

Mortg. Elec. Registration Sys. v. Young, No. 02-08-00088-CV, 2009 WL

1564994, at *5 (Tex. App.—Fort Worth June 4, 2009, no pet.) (mem. op.)

(holding that the county court did not have jurisdiction over a forcible detainer

action when defendant properly disputed title by submitting deeds showing that




                                          5
plaintiff had conveyed ownership of the property to another party after acquiring it

at the foreclosure sale).

      McGuire argues that documents attached to his reply brief on appeal

demonstrate that Wells Fargo had previously assigned the deed of trust to

another party and thus, could not have later assigned it to Fannie Mae.

McGuire‘s argument challenges the validity of title. Fannie Mae was not required

to demonstrate valid title in order to demonstrate superior right of possession.

Rice, 51 S.W.3d at 709. As stated above, Fannie Mae established superior right

of possession through its submission of the deed of trust, the substitute trustee‘s

deed, and the notice to McGuire to vacate. Further, the other action McGuire

references was a challenge to the assignment of the lien from First Preference to

Wells Fargo. See In re A Purported Lien or Claim Against James McGuire, No.

02-11-00140-CV, 2012 WL 254066, at *1 (Tex. App.—Fort Worth Jan. 26, 2012,

no pet. h.) (mem. op.).2      McGuire‘s attempt to dispute title is unlike the

defendant‘s attempt in Young because in Young, the defendant presented

evidence of a conveyance after the plaintiff had purchased the property, thereby

demonstrating that the plaintiff no longer had an interest in the property. See

Young, 2009 WL 1564994, at *3–5.         McGuire challenges a conveyance that


      2
       McGuire challenged the validity of the assignment under government
code section 51.903. See Tex. Gov. Code Ann. § 51.903 (West. Supp. 2011).
We held that section 51.903 does not apply to assignments and, thus, McGuire
could not rely on it to challenge the assignment. McGuire, 2012 WL 254066, at
*1.


                                         6
occurred before Fannie Mae purchased the property. McGuire does not dispute

that Fannie Mae purchased the property or that Fannie Mae has retained its

alleged interest in the property; he disputes, in essence, only whether the seller

had the authority to sell the property to Fannie Mae in the first place. To the

extent that McGuire complains of defects in the foreclosure process, he may

pursue that complaint in district court, but it may not be considered in this action.

See Shutter, 318 S.W.3d at 471; Williams, 315 S.W.3d at 927 (citing Scott, 127

Tex. at 35, 90 S.W.2d at 818–19).

      We hold that the county court was able to determine Fannie Mae‘s right to

immediate possession of the property at trial, and it did not err in granting

possession of the property to Fannie Mae. We overrule McGuire‘s issues.

                                    Conclusion

      Having overruled all of McGuire‘s issues, we affirm the county court‘s

judgment.   Because we affirm the county court‘s judgment, we deny Fannie

Mae‘s motion to strike appellant‘s response brief as moot.




                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

DELIVERED: March 22, 2012




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