                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-15-00371-CV

                            Joseph HARRIS and All Other Occupants of
                          3527 Cameron Springs, San Antonio, Texas 78244,
                                            Appellants

                                                   v.

                                    BANK OF AMERICA, N.A.,
                                           Appellee

                      From the County Court at Law No. 5, Bexar County, Texas
                                  Trial Court No. 2014CV03915
                           Honorable David J. Rodriguez, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: November 10, 2015

AFFIRMED

           In this appeal from a forcible detainer action, appellant Joseph Harris contends the trial

court lacked jurisdiction to enter a judgment because defects in the foreclosure process raised an

issue regarding title, and title issues cannot be adjudicated in a forcible detainer action. Harris also

contends Texas law on forcible detainer is preempted by federal law. We affirm the trial court’s

judgment.
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                                                      BACKGROUND

           In 1998, Harris executed a deed of trust granting a security interest in the property at issue.

In the event of a foreclosure, the deed of trust required Harris or any other person in possession of

the property to immediately surrender possession to the purchaser at the foreclosure sale. The

deed of trust further provided if possession was not surrendered, Harris and any other person in

possession would be considered a tenant at sufferance.

           In May of 2014, the property was sold at foreclosure to appellee Bank of America, N.A. as

evidenced by a Substitute Trustee’s Deed. After the foreclosure, Bank of America sent Harris

notice to vacate. When Harris did not surrender possession, Bank of America filed a forcible

detainer action in September of 2014. The justice court entered a judgment of possession in Bank

of America’s favor which Harris appealed to county court. The county court also entered a

judgment of possession in Bank of America’s favor which Harris appeals to this court.

                                                      JURISDICTION

           In his first issue, Harris contends the trial court did not have jurisdiction to enter the

judgment of possession because he raised an issue regarding the validity of the foreclosure sale at

which Bank of America purchased title to the property. 1 Harris asserts he submitted a loan

modification application, and federal law prohibits a foreclosure sale if a loan modification

application is pending or has been rejected less than thirty days before the scheduled foreclosure

sale. Bank of America responds that the record contains no evidence Harris submitted a loan

modification application and any alleged defects in the foreclosure sale process did not deprive the

trial court of jurisdiction in the forcible detainer action.




1
    Harris does not challenge the trial court’s ruling on possession only its jurisdiction to make the ruling.

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       In a forcible detainer action, the trial court “must adjudicate the right to actual possession

and not title.” TEX. R. CIV. P. 510.3(e). To prevail in a forcible detainer action, a plaintiff need

not prove title. Dormady v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555, 557 (Tex. App.—

San Antonio 2001, pet. dism’d w.o.j.). Instead, the plaintiff need only present sufficient evidence

of ownership to demonstrate a superior right to immediate possession. Hong Kong Dev., Inc. v.

Nguyen, 229 S.W.3d 415, 433 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Dormady, 61

S.W.3d at 557.

       In this case, Harris contends the Substitute Trustee’s Deed under which Bank of America

claimed ownership was void because the foreclosure sale was invalid. Title disputes like the

validity of a foreclosure sale may not be determined in a forcible detainer action and must be

brought in a separate suit. Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 471 (Tex. App.—

Dallas 2010, pet. dism’d w.o.j.); Dormady, 61 S.W.3d at 558. However, the existence of such a

title dispute does not deprive the trial court of jurisdiction in a forcible detainer action when, as

here, a foreclosure under a deed of trust establishes a landlord and tenant-at-sufferance relationship

between the parties. Schlichting v. Lehman Bros. Bank FSB, 346 S.W.3d 196, 199 (Tex. App.—

Dallas 2011, pet. dism’d); Villalon v. Bank One, 176 S.W.3d 66, 71 (Tex. App.—Houston [1st

Dist.] 2004, pet. denied); Dormady, 61 S.W.3d at 558-59. In such cases, there is an independent

basis to determine the issue of immediate possession even if the opposing party claims that the

foreclosure was improper. Schlichting, 346 S.W.3d at 199; Villalon, 176 S.W.3d at 71; Dormady,

61 S.W.3d at 558-59. In this case, Harris’s rights after foreclosure were strictly those of a tenant-

at-sufferance, and the landlord-tenant relationship established in the deed of trust provided an

independent basis for the trial court to determine Bank of America had the right to immediate

possession without resolving whether the foreclosure was proper. Scott v. Hewitt, 127 Tex. 31, 90

S.W.2d 816, 818 (1936); Villalon, 176 S.W.3d at 71. As the Texas Supreme Court has stated, “[i]f
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[Harris] desire[s] to attack the sale made under the deed of trust as invalid, [he] may bring such

suit in the district court for that purpose; but, in a suit for forcible detainer, such action is not

permissible.” Scott v. Hewitt, 127 Tex. 31, 90 S.W.2d 816, 818 (1936). Therefore, the trial court

had jurisdiction to enter the judgment of possession, and Harris’s first issue is overruled.

                                           PREEMPTION

       In his second issue, Harris argues federal law preempts Texas law on forcible detainer. As

Bank of America notes in its brief, however, Harris did not present this argument to the trial court.

Preemption is an affirmative defense which must be pled and presented to the trial court to preserve

a complaint regarding preemption for appellate review. See Kelly v. Brown, 260 S.W.3d 212, 217

(Tex. App.—Dallas 2008, pet. denied); In re Marriage of Smith, 115 S.W.3d 126, 130-31 (Tex.

App.—Texarkana 2003, pet. denied); TEX. R. APP. P. 33.1(a). Because the record does not reflect

that Harris pled preemption as an affirmative defense or presented an argument about preemption

to the trial court, Harris’s second issue has not been preserved for our review. Accordingly,

Harris’s second issue is overruled.

                                           CONCLUSION

       The trial court’s judgment is affirmed.

                                                  Sandee Bryan Marion, Chief Justice




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