                                                                                       ACCEPTED
                                                                                  03-14-00529-CV
                                                                                         4745739
                                                                        THIRD COURT OF APPEALS
April 2, 2015                                                                      AUSTIN, TEXAS
                                                                              4/2/2015 1:13:57 PM
                                                                                JEFFREY D. KYLE
                             NO. 03-14-00529-CV                                            CLERK




                                  ln tbe
                   tltbftb ~ourt of appeals
                       at austin, tlttxas
                                                      RECEIVED IN
                                                 3rd COURT OF APPEALS
               JEROME J. ISAAC AND MICHELLE P. ISAAC,AUSTIN, TEXAS
                              Appellants,        4/2/2015 1:13:57 PM
                                  v.               JEFFREY D. KYLE
    VENDOR                                               Clerk
            RESOURCE MANAGEMENT, INC.; MORTGAGE ELECTRONIC
        REGISTRATION SYSTEMS, INC. AND CITIMORTGAGE, INC.,
                           Appellees.

                   Appealed from the 26th District Court of
                           Williamson County, Texas
                            Cause No. 13-0472-C26
                  Hon. Billy Ray Stubblefield, Judge Presiding


                            BRIEF OF APPELLEE

                      Vendor Resource Management, Inc.


                                      Chris Ferguson
                                      Texas Bar No. 24069714
                                      P.O. Box 815369
                                      Dallas, Texas 75381
                                      P: 972.247.0653 F: 972.247.0642
                                      chris@jackoboyle.com
                                      ATTORNEYS FOR APPELLEE




                                     - 1 -
                                      NO. 03-14-00529-CV

                      JEROME J. ISAAC AND MICHELLE P. ISAAC,
                                     Appellants,

                                                 v.

       VENDOR RESOURCE MANAGEMENT, INC.; MORTGAGE ELECTRONIC
          REGISTRATION SYSTEMS, INC. AND CITIMORTGAGE, INC.,
                             Appellees.


                            IDENTITY OF PARTIES & COUNSEL



The following is a complete list of the all the parties to this action:

(1)    Jerome J. Isaac and Michelle P. Isaac, appellants
       123 Dana Drive, Hutto, Texas 78634

(2)    Vendor Resource Management, Inc. ("VRM"), appellee
       4100 International Parkway, Suite 1000
       Carrollton, Texas 75007

(3)    Mortgage Electronic Registration Systems, Inc. ("MERS"), appellee
       1901 Voorhees Street, Suite C
       Danville, IL 61834

(4)    Citimortgage, Inc. ("Citi"), appellee
       1000 Technology Drive
       O'Fallon, MO 63368

(5)    Michael Brinkley, attorney for appellants
       Brinkley Law PLLC
       P.O. Box 820711
       Fort Worth, Texas 76182




                                               - 2 -
(6)   John Ellis, attorney for appellees MERS and Citi
      Locke Lord, LLP
      600 Congress Avenue, Suite 2200
      Austin, Texas 78701

(7)   Christopher S. Ferguson, attorney for appellee VRM
      Jack O'Boyle & Associates
      P.O. Box 815369
      Dallas, Texas 75381




                                           - 3 -
                                           TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL. ................................................. 2

INDEX OF AUTHORITIES ..................................................................... 5

STATEMENT OF THE CASE ................................................................. 8

STATEMENT ON ORAL ARGUMENT ................................................. 9

REPLY TO ISSUES PRESENTED .......................................................... 9

STATEMENT OF FACTS ........................................................................ 9

SUMMARY OF THE ARGUMENT ...................................................... 12

ARGUMENT ........................................................................................... 13

Reply to issue 1: Summary Judgment Proper ........................................ 14

Reply to issue 2: Validity of Foreclosure Sale ....................................... 24

PRAYER .................................................................................................. 27

CERTIFICATE OF SERVICE ................................................................ 27




                                                           - 4 -
                              INDEX OF AUTHORITIES

                        CASES:                                   PAGE:

Bierwirth v. Fed. Nat. Mortgage Ass'n,
No. 03-13-00076-CV, 2014 WL 902541, at *3
(Tex. App. Mar. 6, 2014)                                         24

Deubler v. Bank ofNew York Mellon,
No. 02-10-00125-CV, 2011
Tex.App. LEXIS 2644, at *3-4, 2011 WL 1331540
(Tex.App.-Fort Worth Apr. 7, 2011, no pet.) (mem.op.)            25

Goggins v. Leo,
849 S.W.2d 373, 377(Tex. App. Houston [14th Dist])               16

Harris v. Ebby Halliday Real Estate, Inc.,                       14
345 S.W.3d 756, 759 (Tex. App. 2011)
Hornsby v. Sec'y of Veterans Affairs,
No. 05-11-01075-CV, 2012 WL 3525420, at *7 (Tex. App. Aug.       24
16, 2012)

It's the Berrys, LLC v. Edam Corner, LLC,
271 S.W.3d 765, 769-772 (Tex. App.-Amarillo 2008, no pet.)
(transfer improper)                                              22

Kaldis v. Aurora Loan Servs.,
No. 01-09-00270-CV, 2010Tex.App. LEXIS 4831,
 at *9, 2010 WL 2545614 (Tex.App.-Houston [1st Dist.]
June 24,2010, pet. dism'd w.o.j.) (mem.op.)                      25

Marshall v. Housing Auth. of City ofSan Antonio,
198 S.W.3d 782, 787 (Tex.2006)                                   18

Martinez v. Beasley,
572 S.W.2d 83, 85(Tex. Civ. App.-Corpus Christi 1978, no writ)   18

Meridien Hotels, Inc. v. LHO Fin. P'ship I, L.P.,
97 S.W.3d 731, 737-738 (Tex.App.-Dallas 2003, no pet.)
(abatement improper)                                             22,23

                                          -   5 -
                         CASES:                                      PAGE:

Mitchell v. Citiflnancial Mortgage Company,
192 S.W.3rd 882 (Tex.Civ.App.- Dallas 2006)                          26

Mortgage Electronic Registration Systems, Inc. vs. Knight,
09-04-452 Tex.App. Beaumont)                                         26

Murphy v. Countrywide Home Loans Inc,
199 S.W.3d 441, 445 (Tex.App.Houston [1 81 Dist.] 2006,
rehearing ovrl' d)                                                   16

Powelson v. US. Bank, NA.,
125 S.W.3rd 810 (Tex.App.Dallas 2004 no pet)                         26

Puentes v. Fannie Mae,
350 S.W.3d 732, 738-39 (Tex. App. 2011)                              21,22

Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L. C.,
336 S.W.3d 764, 783 (Tex. App. 2011)                                 19

Rice v. Pinney!J.
51 S.W.3rd 705, 709 (Tex.App.-Dallas 2001, pet. dism'd w.o.j.)       18,21

Rodriguez v. Citimortgage, Inc.,
03-10-00093-CV, 2011 WL 182122 (Tex. App. Jan. 6, 2011)              18

Scott v. Hewitt,
127 Tex. 31, 35,90 S.W.2d 816,818-19 (1936)                          18

Spring Garden 79U, Inc. v. Stewart Title Co.,
874 S.W.2d 945,950 {Tex. App. 1994)                                  19

Stephens v. Federal Home Loan Mortg. Corp.,
No. 02-10-00251-CV, 2011 Tex.App. LEXIS 3056, at *5, 2011
WL 1532384 (Tex.App.-Fort Worth Apr.21, 2011, no pet.) (rnem.op.)    25




                                             -   6 -
                     CASES:                                       PAGE:

Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex.2005)                                    13

Villalon v. Bank One, Trustee,
176 S.W.3rct 66(Tex.App.-Houston(1 st. Dist.) 2004, pet.denied)   26

Walker Ins. Servs., 108 S.W.3d at 550;                            19


      STATUTES:                                                   PAGE:

Tex.Fin.Code §392.001(6)                                          20

Tex. Prop. Code Ann.§ 24.002 (Vernon 2000)                        16

Texas Property Code §24.005                                       18

Tex. R. Civ. P. 166a(b)                                           13

Tex. R. Civ. P. 166a(c)                                           13

Tex.R. Civ. P. 166a(i)                                            14

Tex.R. Civ.P. 510(3)(b)                                           25

Tex.R. Civ. P. 746                                                25




                                         - 7 -
TO THE HONORABLE COURT OF APPPEALS:

      COMES NOW, VENDOR RESOURCE MANAGEMENT, INC. ('VRM')

Appellee herein, and files this, its response to Brief of Appellant's.



                             STATEMENT OF CASE

      This case is brought by the Isaacs against the Appellees for alleged

violations of the Texas Debt Collection Act ('TDCA'), for alleged breach of

contract, to quiet title subject to any valid and subsisting lien, and seeking

injunctive relief under the trial court's inherent powers and the TDCA. All of

these alleged causes of action stem from a foreclosure action that Appellee VRM

was not a party to and therefore could not be complicit in causing. The only

specific allegation made against VRM in Appellant's entire pleadings was for

violation of the Texas Property Code, leading to a wrongful eviction attempt.

Because Appellant's allegations were groundless, all of the Appellee's filed

motions for summary judgment (VRM filed a motion separate from MERS and

Citi Mortgage).    The trial court agreed with the Appellee's and granted each of

their motions for summary judgment.       Isaacs file a Motion to Vacate, which was

overruled by operation of law, which lead to this appeal.




                                         - 8 -
               STATEMENT REGARDING ORAL ARGUMENTS
      Appellee VRM does believe oral arguments are necessary and does not

request them but wishes to participate if they are held.

                        REPLY TO ISSUES PRESENTED

   1. The trial court did not err in granting summary judgment to the Appellees,

      including VRM, because there was not sufficient evidence to create a fact

      dispute, necessitating a trial.


   2. The trial court did not err in granting summary judgment to the Appellees

      because the substitute trustees acted with proper authority and capacity.


                             STATEMENT OF FACTS

       1.      Appellant(s) are JEROME J. ISAAC and MICHELLE P. ISAAC

('Appellant'     or    'ISAAC');        Appellee(s)   are   VENDOR      RESOURCE

MANAGEMENT,              INC.       ('VRM'),          MORTGAGE        ELECTRONIC

REGISTRATION SYSTEMS, INC. ('MERS ') and CITIMORTGAGE, INC.

('CITI').

      2.       Appellee has sued Appellant(s) alleging irregularities in a foreclosure

sale and eviction and seeking to quiet title to certain real property identified by

street address as 123 Dana Drive, Hutto, TX 78634 (the 'Subject Property').

       3.      VRM is entitled to summary judgment on all claims alleged against it

                                           - 9 -
by Appellant(s). The issues in this lawsuit concern the foreclosure sale that took

place (and to which VRM was not a party) and the attempt by VRM to obtain

possession of the Subject Property.·

       4.      VRM is entitled to summary judgment as no genuine issue of material

fact exists.   The Appellant alleges several causes of actions all stemming from the

foreclosure.     VRM was not a party to the foreclosure and therefore cannot be

implicated in these allegations. The only specific allegation the Appellant makes

against VRM is that VRM wrongly attempted to evict them from their home and

has no right to possession of the property.       When it commenced its eviction

proceeding, Appellee VRM was able to prove all of the elements under the forcible

detainer theory of recovery as a matter of law. To wit:        (1) that the Subject

Property was auctioned at a foreclosure sale; (2) this foreclosure sale was held

pursuant to a Deed of Trust, creating a landlord tenant relationship upon

foreclosure; (3) that following foreclosure the named Grantee in the Trustee's

Deed conveyed the Subject Property to the Secretary of Veterans Affairs by way of

a Warranty Deed; (4) that following this conveyance VRM, as duly authorized

agent on behalf of the Secretary of Veterans Affairs, served written demand upon

Isaac to vacate the Subject Property; and (5) Isaac failed to vacate. Therefore,

Isaac's one allegation against VRM fails as a matter of law.




                                        - 10 -
         I.   STATEMENT OF MATERIAL FACTS AND EVIDENCE

     5.       On or about November 7, 2001, Jerome J. Isaac and Michelle P. Isaac

executed a Note for $125,162.00 payable to Sterling Capital Mortgage. The Note

was secured by a Deed of Trust which Jerome and Michelle Isaac granted to

Sterling Capital Mortgage.

    6.        The Note and Deed of Trust encumbered the following property:

LOT 52 BLOCK B, LAKES IDES ESTATE SECTION TWO, A SUBDIVISION

IN WILLIAMSON COUNTY, TEXAS, ACCORDING TO THE OR PLAT

RECORDED IN CABINET T, SLIDE 19 OF THE PLAT RECORDS OF

WILLIAMSON COUNTY, TEXAS. The Property is commonly known as 123

Dana Drive, Hutto, Texas 78364 (the "Subject Property").

    7.        The loan was subsequently service transferred on February 1, 2002 to

First Nationwide Mortgage Corporation ("First Nationwide") and the Deed of

Trust was assigned to First Nationwide.

    8.        First Nationwide merged with Citi in March 2003 and the servicing

rights and records of First Nationwide for the Isaac's loan were transferred to Citi

effective April 2, 2003.

    9.        In 2007 the Isaacs began to evince difficulty paying their mortgage.

After several attempts to enter the Isaacs into a loan modification program failed,

the Subject Property was sold to Citi on February 5, 2013 at a foreclosure auction.


                                      - 11 -
On February 27, 2013 Citi conveyed the Subject Property, via a Warrant Deed, to

the Secretary ofVeterans Affairs.

    10.     On or about March 27, 2013, VRM, as the authorized agent of the

Secretary of Veterans Affairs, brought an eviction action against the Appellant.

When the eviction proceedings commenced the Secretary of Veterans affairs was

the lawful owner of the Subject Property as evidenced by the February 27, 2013

Warranty Deed and had authority to act as evidenced by Exhibit D.

    11.     On June 10, 2013 the Secretary of Veterans Affairs reconveyed the

Subject Property to Citi as evidenced by Exhibit E.

                              SUMMARY OF ARGUMENT

    12.     The 261h District Court did not err in granting summary judgment for

VRM, MERS, and Citimortgage. The substitute trustee had sufficient authority to

conduct the sale and VRM had full capacity to initiate and prosecute possession

proceedings, including the filing of a forcible detainer suit. Even if the substitute

trustee had lacked capacity, the validity of the foreclosure was beyond the scope

of a forcible detainer and the trial court did not err in concluding that VRM had

acted without liability. Furthermore, when VRM learned that tile of the property

had been transferred it immediately ceased all eviction activity. VRM was not a

party to foreclosure and could not have participated in the acts and omissions

giving rise to the Appellant's other alleged causes of actions.


                                       - 12 -
                     IV.      SUMMARY JUDGMENT STANDARDS

      14.    A motion for summary judgment shall be rendered forthwith if (i) the

deposition transcripts, interrogatory answers, and other discovery responses

referenced or set forth in the motion or responses, and (ii) the pleadings,

admissions, affidavits, stipulations of the parties, and authenticated or certified

public records, if any, on file at the time of the hearing, or file thereafter and before

judgment with permission of the court, show that, except as to the amount of

damages, there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law on the issues expressly set out in the

motion. Rule 166a(c), Tex. R. Civ. P.

      15.    An Appellee Defendant 1s entitled to summary judgment on an

Appellant's cause of action if the Appellee can prove as a matter of law that it has

an affirmative defense to the cause of action. See Tex. R. Civ. P. 166a(b). To meet

its burden, the Appellee Defendant must show that there is no genuine issue of

material fact on the elements ofthe affirmative defense. Tex. R. Civ. P. 166a(c).

                   II.     ARGUMENTS AND AUTHORITIES

                                 Standard of Review

Under either the no evidence or traditional summary judgment appeal, the

standards are subject to de novo review. See Valence Operating Co. v. Dorsett,


                                         -   13 -
164 S.W.3d 656, 661 (Tex.2005). When a party moves for summary judgment

under both standards, the reviewing court will generally address the no-evidence

grounds first. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). A no-

evidence motion for summary judgment is essentially a pretrial motion for directed

verdict. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009). Under Texas

Rule of Civil Procedure 166a(i), a party without the burden of proof may seek

summary judgment on the ground that, after adequate time for discovery, there is

no-evidence to support one or more essential elements of the nonmovant's claim or

defense. Tex.R. Civ. P. 166a(i); see Gish, 286 S.W.3d at 310. The trial court is

required to grant the motion unless the nonmovant produces evidence raising a

genuine issue of material fact as to each challenged element. See Tex.R. Civ. P.

166a(i).Harris v. Ebby Halliday Real Estate, Inc., 345 S.W.3d 756, 759 (Tex. App.

2011)

   I.         The trial court did not err in granting summary judgment to the
              Appellees, including VRM because there was not sufficient
              evidence to create a fact dispute, necessitating a trial.

        16.   The Appellant did not offer any evidence in support of his motion for

summary judgment. The documents attached to his motion as purported evidence

were excluded from evidence by the trial court. The Order Granting Defendant's

Objections to Appellant's Summary Judgment Evidence explicitly states that the

"objected-to evidence is stricken from the summary judgment record." (C.R. p.


                                       - 14 -
433).     During the hearing on the parties' motions for summary judgment, the

Appellant did not make a proper objection to the exclusion of his evidence in order

to preserve the error for review on appeal. (R.R. Vol. 1, p. 24 ). Furthermore, the

Appellant did not make a proper offer of proof to have the evidence included in the

record for review on appeal. 1 Therefore, when reviewing de novo the trial court's

decision to grant the Appellee's motions for summary judgment, this Honorable

Court must limits its review to the contents of the record.

         17.     Appellee VRM was entitled to summary judgment because Appellee

can disprove an element of Appellant's alleged cause of action as a matter of law.

To carry its burden, Appellee must disprove only one of the elements of

Appellant's cause of action.

         18.     Appellant only alleges one specific cause of action against Appellee

VRM: wrongful eviction.

         19.     A forcible detainer occurs when a person refuses to surrender

possession of real property upon a statutorily sufficient demand for possession if

that person is: (1) a tenant or subtenant willfully and without force holding over

after his right of possession ends, (2) a tenant at will or by sufferance, or (3) a




1
 "When the trial court rules evidence is not admissible and excludes it, the party who offered the evidence should
make an offer of proof to get the evidence into the record on appeal." TRE 103(a)(92) Akin v. Santa Clara Land
Co., 34 S. W.3d 334, 339 (Tex.App.- San Antonio 2000, pet. denied).


                                                      - 15 -
tenant of someone who acquired possession by forcible entry. TEX. PROP. CODE

ANN. § 24.002 (Vernon 2000).

      20.    To prevail in a forcible detainer case, Appellee VRM must establish

as a matter of law: (1) Secretary of Veterans Affairs was the owner of the Subject

Property by way of being the named successor in interest to a trustee deed's

executed as a result of a foreclosure sale of the Subject Property, (2) the

foreclosure was of a lien superior to Isaac's right to possession thereby causing

Isaac to become a tenant at sufferance, (4) VRM made to Isaac a statutorily written

demand for possession and (5) Isaac failed to vacate. See TEX. PROP. CODE

ANN. § 24.002; Murphy v. Countrywide Home Loans Inc, 199 S.W.3d 441, 445

(Tex.App.Houston [1st Dist.] 2006, rehearing ovrl 'd), citing Goggins v. Leo, 849

S.W.2d 373, 377 (Tex. App. Houston [14th Dist]).

            (1)   Substitute Trustee's Deed and Special Warranty Deed

      21.    On February 5, 2013, the subject property was sold at a non-judicial

foreclosure sale. A certified copy of the Substitute Trustee's Deed was included in

the Appellee's Motion for Summary Judgment as Exhibit A (C.R. p. 325).

Following this foreclosure sale the named Grantee in the Substitute Trustee's Deed

conveyed the Subject Property to the Secretary of Veterans Affairs by way of a

Warranty Deed.    A certified copy of the Warranty Deed was included in the

Appellee's Motion for Summary Judgment as Exhibit B (C.R. p. 327).


                                      - 16 -
                                (2)    Deed of Trust

      22.    This foreclosure sale was held pursuant to the terms of a Deed of

Trust. A certified copy of said instrument was included in the Appellee's Motion

for Summary Judgment as Exhibit C (C.R. p. 329 That instrument provides that

following a foreclosure sale, the mortgagor in the deed of trust and anyone holding

under him or her shall immediately surrender possession of the Subject Property to

the purchaser at the foreclosure sale. It further provides that if possession is not

surrendered, the mortgagor or the person holding under him or her shall be a tenant

at sufferance and may be removed by writ of possession or other court proceeding.

                               (3)    Notice to Vacate

      23.    The business records affidavit was included in the Appellee's Motion

for Summary Judgment as Exhibit D (C.R. p. 349-355). The business record and its

accompanying affidavit stablished that following the February 5, 2013 foreclosure

sale the law offices of Jack O'Boyle & Associates mailed a notice to vacate to the

property addressed to Isaac by both first class and certified mail. Attached to said

affidavit is a true and correct copy of this notice to vacate, as well as a copy of the

face of the first class and certified mail envelopes as they appeared prior to

sending; and lastly, a copy of the United States Postal Service (USPS) track and

confirm information for the certified mail article. This affidavit, and supporting

documents, is sufficient to establish the admissibility of the notice to vacate, sent


                                        - 17 -
by the law firm in compliance with the Texas Property Code 24.005.                See

Rodriguez v. Citimortgage, Inc., 03-10-00093-CV, 2011 WL 182122 (Tex. App.

Jan. 6, 2011).

                               (4)   Failure to Vacate

      24.     Isaac has admitted in his original petition that he continues to occupy

the property.     Appellant's Original Petition conceded that he has remained in

possession of the property and by defending against VRM' s claim of possession

made on behalf of the Secretary of Veterans Affairs, Isaac tacitly admitted that

they remained in the property at the time the eviction process commenced.

Rodriguez, 03-10-00093-CV, 2011 WL 182122 (Tex. App. Jan. 6, 2011). Ifhe had

relinquished possession, his competing claims to possession would be moot. See

Marshall v. Housing Auth. of City of San Antonio, 198 S. W.3d 782, 787

(Tex.2006).

            (5)   Immediate Possession Determined Separately from Title

      25.     A forcible detainer action is not exclusive, but rather is cumulative, of

any other remedy that a party may have in courts of this state, and the displaced

party is entitled to bring a separate suit in the district court to determine the

question of title. Rice, 51 S.W.3d at 709, see also Scott v. Hewitt, 127 Tex. 31, 35,

90 S.W.2d 816, 818-19 (1936); Martinez v. Beasley, 572 S.W.2d 83, 85 (Tex. Civ.




                                        - 18 -
App.-Corpus Christi 1978, no writ). Forcible detainer actions injustice courts may

be brought and prosecuted concurrently with suits to try title in district court. !d.

                                (6) VRM's Authority to Act

         26.   In determining whether a party had actual authority to act for another,

the courts examine the words and conduct by the principal to the alleged agent

regarding the alleged agent's authority to act for the principal. See Walker Ins.

Servs., 108 S. W.3d at 550; Spring Garden 79U, 874 S. W.2d at 950. Reliant Energy

Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S. W.3d 764, 783 (Tex. App.

2011).

         27.   The business records affidavit that was included in the Appellee's

Motion for Summary Judgment as Exhibit D establishes that Vendor Resource

Management (VRM) is the duly authorized agent of the Secretary of Veteran's

Affairs and is therefore able to act on its behalf (C.R. p. 356).

         28.   The plain text of the document evincing VRM's authority states that

VRM is "responsible for the full range of property acquisition, management and

resale and loan servicing activities. This includes actions for possession ... " on

behalf of the Secretary of Veteran's Affairs (C.R. p. 356).




                                         -   19 -
                              Texas Finance Code Does not Apply

         29.     The section of the Texas Finance Code cited by the Appellant only

applies to debt collectors2 and VRM was not in this instance acting as debt

collector or attempting to collect a debt.

         30.      The Texas Finance Code defines a debt collector as "a person who

directly or indirectly engages in debt collection and includes a person who sells or

offers to sell forms represented to be a collection system, device, or scheme

intended to be used to collect consumer debts." Tex.Fin.Code §392.001(6)

(emphasis added).

         31.       VRM was acting as the duly authorized agent for the Secretary of

Veterans Affairs. The Secretary of Veterans Affairs did not make a consumer loan

to the Appellant and therefore could not have been attempting to collect on a

consumer debt. VRM did not make a consumer loan to the Appellant either, nor,

therefore, could it have been attempting to collect a debt.

          32.      The Secretary of Veterans Affairs acquired title to the property by

means of a warranty deed executed by CitiMortgage after CitiMortgage had

foreclosed on the Subject Property. The Secretary ofVeterans Affairs, through its

agent VRM, was merely seeking to obtain possession of a property that it owned

and was not seeking collection of a debt. In fact, the judgment issued in the

2
    See Sec. 392.30 I. THREATS OR COERCION. (a) In debt collection, a debt collector may not .... "


                                                   - 20 -
forcible detainer action was for possession only and did include any monetary

damages, not even attorney's fees.

                  Improper Collateral Attack on Justice Court Judgment

      33.       The substitute trustee's deed, deed of trust, and notice to vacate were

sufficient for Williamson Justice Court Precinct 4 to award immediate right of

possession to VRM. If Appellant wanted to appeal the justice court's decision on

grounds of insufficient evidence he was free to do so but, for whatever reason,

chose not to.

      34.       The Appellant is now improperly seeking to attack the Justice Court's

judgment rendered in the forcible detainer action.

     35.        A forcible detainer is a simple, speedy, and inexpensive remedy for

determining which party has a superior right of immediate possession. Rice v.

Pinney,_ 51 S.W.3rd 705, 709 (Tex.App.-Dallas 2001, pet. dism'd w.o.j.)

Therefore, a forcible detainer judgment "is necessarily limited to the scope of the

suit, an award of possession on a particular date does not implicate a party's

possessor right on a future date." Puentes v. Fannie Mae, 350 S.W.3d 732, 738-39

(Tex. App. 2011)

     36.        Having failed to appeal the Justice Court's judgment awarding the

Defendant VRM, as duly authorized agent for the Secretary of Veterans Affairs,




                                          - 21 -
possession, the Appellant was free to file his own forcible detainer to establish his

superior right of possession if he believed changed circumstances so warranted.

     37.     In a case with similar facts, but challenged on different grounds, the

Second Court of Appeals held that a party may file a new forcible detainer action

even after failing to appeal the justice court judgment in the original proceeding.

See Puentes v. Fannie Mae, 350 S.W.3d 732, 739 (Tex. App. 2011) (A "Suit was

nothing more than a determination that, at that time, the Puenteses had a superior

right to possess the property .... "[a]s the First JP Suit had no effect on the justice

court's jurisdiction to consider the Second JP Suit, Fannie Mae was not required to

appeal the judgment. ").

     38.     Instead, the Appellant is seeking to usurp the Justice Court's

jurisdiction by attacking its judgment in this proceeding. Because the available

remedies in a forcible detainer are cumulative, a justice court (and on appeal -

County 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 another court in which

such a dispute is pending. It's the Berrys, LLC v. Edom Corner, LLC, 271 S.W.3d

765, 769-772 (Tex. App.-Amarillo 2008, no pet.)(transfer improper); Meridien

Hotels, Inc. v. LHO Fin. P'ship I, L.P., 97 S.W.3d 731, 737-738 (Tex.App.-

Dallas 2003, no pet.)(abatement improper)]          If the justice court abates the


                                        - 22 -
proceeding, the appropriate court may issue mandamus to require the justice court

to proceed with the eviction suit. Meridien Hotels, Inc, 97 S.W.3d at 737 Uustice

court abused its discretion in abating eviction suit until finalization of district court

proceedings seeking declaration that tenant was in default, so county court

properly issued mandamus to require justice court to proceed to trial on issue of

possession). Just as the Justice Court should not relinquish jurisdiction over a

pending forcible detainer in deference to an on-going title dispute, neither should

the district court interfere with the Justice Court's jurisdiction by allowing the

Appellant to make a collateral attack on the Justice Court's judgment.

                   Writ of Possession Issued But Was Not Executed

    39.      On or around September 17, 2013 the Justice Court Precinct 4,

Williamson County, issued a writ of possession on its valid judgment in the

original forcible detainer action (said judgment was included in the Appellee's

Reply to     Plaintiffs Response to Defendant's Motion for Final              Summary

Judgment as Exhibit A (C.R. p. 408)).

    40.      Said writ was issued but never executed. The Appellants were not set

out of the Subject Property and did not suffer any injury. In fact, the Appellants

have continued to occupy the Subject Property without paying rent since February

of2013.




                                         -   23 -
II.    The trial court did not err in granting summary judgment to the
       Appellees because the substitute trustees acted with proper authority
       and capacity and regardless, issues of title are not relevant.

      41.      Appellee VRM was not a party to the foreclosure and Appellant does

not implicate VRM in any alleged foreclosure irregularities. Appellant's sole

argument relating VRM to the foreclosure is that because the foreclosure was

improper the subsequent transfer of title to the Secretary of Veteran's Affairs was

void and VRM' s eviction action on behalf of the VA was therefore unlawful.

      42.      Appellee VRM expects this issue to be fully briefed by Appellees

MERS and Citimortgage and therefore will limit its scope to the relevance of the

allegation to VRM's original forcible detainer.

      43.      Any challenge to the foreclosure, including appointment of the

trustee, goes to the question of title and is not permitted in a forcible detainer

action.     As this Court has affirmed again and again where, as here, "a foreclosure

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

between the parties, there is an independent basis to determine the issue of

immediate possession without resolving the issue of title to the property."

Bierwirth v. Fed. Nat. Mortgage Ass'n, No. 03-13-00076-CV, 2014 WL 902541, at

*3 (Tex. App. Mar. 6, 2014) citing Hornsby v. Sec'y of Veterans Affairs, No. 05-

11-01075-CV, 2012 WL 3525420, at *7 (Tex. App. Aug. 16, 2012) ("Although

[appellant] challenges the chain of title to the property, 'the merits of the title shall


                                         - 24 -
not be adjudicated' in a forcible detainer action." (quoting Tex.R. Civ. P. 746)) 3 ;

Stephens v. Federal Home Loan Mortg. Corp., No. 02-10-00251-CV, 2011

Tex.App. LEXIS 3056, at *5, 2011 WL 1532384 (Tex.App.-Fort Worth Apr.21,

2011, no pet.) (mem.op.) (holding Federal Home was not required to "connect the

dots" between original lender and mortgage servicer regarding title; substitute

trustee's deed evidenced Federal Home purchased property after plaintiffs default);

Deubler v. Bank of New York Mellon, No. 02-10-00125-CV, 2011 Tex.App.

LEXIS 2644, at *3-4, 2011 WL 1331540 (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); Kaldis v. Aurora Loan Servs., No. 01-09-00270-CV, 2010

Tex.App. LEXIS 4831, at *9, 2010 WL 2545614 (Tex.App.-Houston [1st Dist.]

June 24, 2010, pet. dism'd w.o.j.) (mem.op.) (holding whether substitute trustee's

deed was "void" or "deficient" or whether there was "a gap in the chain of

title/ownership" was issue outside scope of forcible-detainer action).


                                                IV.     CONCLUSION

       44.      Appellant would show unto this Court that based upon the summary

judgment evidence attached to its Motion and considered by the trial court,


3
 This was the Rule number when the opinion was written. Rule 746 was replaced by Rule 510.3(b)effective
August 30, 2013.


                                                   - 25 -
Appellant established a prima facie case of its right to possession of the Subject

Property. Mitchell v. Citifinancial Mortgage Company, 192 S.W.3rct 882

(Tex.Civ.App. - Dallas 2006), Powelson v. US. Bank, N.A., 125 S.W.3rct 810

(Tex.App.Dallas 2004 no pet); Mortgage Electronic Registration Systems, Inc. vs.

Knight, 09-04-452 Tex.App. Beaumont), Villalon v. Bank One, Trustee, 176

S.W.3rct 66(Tex.App.-Houston(l st. Dist.) 2004, pet.denied). Therefore, VRM did

not wrongfully pursue a forcible detainer action against the Appellant.

      45.    The Trustee's Deed and Warranty Deed establish that the Subject

Property was auctioned at foreclosure and subsequently conveyed to the Secretary

of Veterans Affairs thereby entitling it to possession of the same. The deed of trust

required Isaac to surrender possession of the property to VRM, on behalf of the

Secretary of Veterans Affairs as the successor in interest to the purchaser at the

sale, and further provided that failure to do so would cause Isaac to become a

"tenant at sufferance." The foreclosure pursuant to the deed of trust established a

landlord and tenant-at-sufferance relationship between the Isaac and Appellee,

which provided a basis for determining the right of possession.

      46.    As such, there existed no genuine disputed issue of material fact.

Accordingly, as a matter of law, VRM, as duly authorized agent for the Secretary

of Veterans Affairs, was entitled to possession of the Subject Property when VRM




                                       - 26 -
commenced the forcible detainer. The trial court , therefore, was correct to grant

VRM' s summary judgment and did not commit reversible error.

                                   V.     PRAYER

      WHEREFORE,          PREMISES       CONSIDERED,         VRM    prays that      this

Honorable Court affirm the judgment of the trial court. Appellee also requests any

other relief, at law or in equity, to which it may be entitled.




                                                  RESPECTFULLY SUBMITTED:
                                                  JACK O'BOYLE & ASSOCIATES


                                                  Is/Chris Ferguson
                                                  _John James "Jack" O'Boyle
                                                  SBN 15165300
                                                  _Travis H. Gray
                                                  SBN 24044965
                                                  XX Chris Ferguson
                                                  SBN 24069714
                                                  P.O. Box 815369
                                                  Dallas, Texas 75381
                                                  P: 972.247.0653 F: 972.247.0642
                                                  ATTORNEYS FOR APPELLEE


                           CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing was

served upon the parties listed below on April 2, 2015, pursuant to Texas Rule of

Appellate Procedure 9.5.

                                         - 27 -
VIA FACSIMILE (888)511-0946
& EMAIL (m@michaelbrinkley.com)
Michael Brinkley
P.O. Box 820711
Fort Worth, TX 761-0711
Attorney for Appellants

VIA FACSIMILE (512-305-4700)
& EMAIL (jellis@lockelord.com)
John W. Ellis
600 Congress Avenue, Suite 2200            Is/Chris Ferguson
Austin, Texas 78701                        Chris Ferguson




                                  - 28 -
