      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-18-00093-CV



                                   Wenkai Chen, Appellant

                                                v.

                               Bank of America, N.A., Appellee


              FROM COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
         NO. C-1-CV-16-011423, HONORABLE TODD T. WONG, JUDGE PRESIDING



                           MEMORANDUM OPINION


               Wenkai Chen appeals a trial-court judgment in a forcible-detainer suit awarding

Bank of America, N.A., possession of residential real property in Travis County (the Property). In

two issues, Chen challenges the sufficiency of the evidence supporting the judgment. Specifically,

Chen asserts that an affidavit that was admitted as part of a trial exhibit at the bench trial was

not “competent summary judgment” evidence and, consequently, the judgment of possession was

error. We will affirm.

               Chen purchased the Property, which was previously owned by James and Synde

Garcia, at a foreclosure sale initiated by a homeowners’ association pursuant to a homeowners’

association assessment lien. See Tex. Prop. Code § 209.0091 (property owners’ association may
foreclose any lien described by association’s dedicatory instruments after obtaining court order).1

The Constable’s Deed conveying the Property to Chen provides that the sale is “subject to the

superior lien indebtedness upon such property.”2 The Property was subject to a superior lien by virtue

of the Garcias’ having executed a deed of trust granting a first lien security interest in the Property

to secure a mortgage loan in the principal amount of $145,112.00. The deed of trust provided:


       If after complying with all applicable statutory notice provisions Lender requires
       immediate payment in full [], Lender may invoke the power of sale and any other
       remedies permitted by applicable law.

       ••••

       If the Property is sold pursuant to this Paragraph [], Borrower or any person holding
       possession of the Property through Borrower shall immediately surrender possession
       of the Property to the purchaser at the sale. If possession is not surrendered,
       Borrower or such person shall be a tenant at sufferance and may be removed by writ
       of possession.


As a result of default on the mortgage loan, and subsequent to purchase by Chen, the Property was

sold to Bank of America at a foreclosure sale conducted by a substitute trustee. Bank of America

received a substitute trustee’s deed memorializing the conveyance. Bank of America, through its

counsel, then sent written notices to the Garcias, Chen, and all current occupants of the Property



       1
           The developer of a subdivision, as owner of all land subject to the declaration, is entitled
to create liens on its land to secure the payment of assessments. Inwood N. Homeowners’ Ass’n, Inc.
v. Harris, 736 S.W.2d 632, 634 (Tex. 1987). Although the remedy of foreclosure may seem harsh
especially when a small sum is due, the court is bound to enforce the agreements homeowners enter
into concerning the payment of assessments. Id. at 637.
       2
            The relevant dedicatory instrument also provides that a lien to secure payment of
homeowners’ association assessments “shall be specifically made secondary, subordinate and
inferior to all liens [] to secure the payment of monies advanced [] on account of the purchase price.”

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instructing them to vacate the Property and advising them that, if they failed to do so, Bank of

America would file a forcible-detainer suit against them for possession of the Property.

                When Chen failed to surrender the Property, Bank of America filed a forcible-detainer

action. The justice court granted possession of the Property to Bank of America. Chen appealed

the judgment to the county court at law. Following a de novo bench trial, the trial court rendered

judgment granting Bank of America possession. This appeal followed.


                                           DISCUSSION

                A forcible detainer is a procedure to determine the right to immediate possession of

real property when there is no unlawful entry. Williams v. Bank of N. Y. Mellon, 315 S.W.3d 925,

926 (Tex. App.—Dallas 2010, no pet.). “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,

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

Prop. Code § 24.002(a)(2). To prevail in a forcible-detainer action, a plaintiff need not prove title.

Tex. R. Civ. P. 510.3(e) (“The court must adjudicate the right to actual possession and not title.”);

Dormady v. Dinero Land & Cattle Co., 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.). To prevail in its forcible-detainer action, Bank of

America was required to show that (1) it owned the property by virtue of the substitute trustee’s

deed, (2) Chen became a tenant at sufferance when the property was sold under the deed of trust,




                                                   3
(3) Bank of America gave proper notice to Chen requiring that she vacate the premises, and (4) Chen

refused to surrender the premises to Bank of America.

               At trial, Bank of America introduced into evidence certified copies of the Garcias’

deed of trust, the substitute trustee’s deed granting the Property to Bank of America following

foreclosure of the superior lien securing payment of the mortgage loan, the constable’s deed

evidencing the sale of the Property to Chen subject to the superior lien, and notices sent by counsel

for Bank of America to Chen and all occupants of the Property. The substitute trustee’s deed

reflected that Bank of America purchased the Property after foreclosure due to default under the

terms of the deed of trust. The deed of trust established that Chen and any other occupants of the

Property became tenants at sufferance after Bank of America purchased the Property at the

foreclosure sale. The constable’s deed reflected that Chen’s interest in the Property was subject to

the superior lien indebtedness on the Property. The notices sent by Bank of America to Chen and

all other occupants of the Property informed them that their tenancy was being terminated and that

they were required to vacate the Property. This evidence was sufficient to establish that Bank of

America had a superior right to immediate possession of the Property. See Reardean v. Federal

Home Loan Mortg. Corp., No. 03-12-00562-CV, 2013 WL 4487523, at *2 (Tex. App.—Austin

Aug. 14, 2013, no pet.) (mem. op.); Schlichting v. Lehman Bros. Bank FSB, 346 S.W.3d 196, 198

(Tex. App.—Dallas 2011, pet. dism’d); Williams, 315 S.W.3d at 927.

               In this appeal, however, Chen asserts that the trial court erred in granting

possession of the Property to Bank of America because it improperly considered the affidavit of

Aisha Huckleberry, which was attached to the substitute trustee’s deed that conveyed the Property

to Bank of America after the foreclosure sale. The Huckleberry affidavit attested to the mailing of

                                                 4
pre-foreclosure notices required by the Texas Property Code.3 According to Chen, this affidavit was

not “competent summary judgment evidence”4 because it “did not unequivocally state the facts

were personally known [to the affiant] and were true.” The Huckleberry affidavit was attached to the

recorded substitute trustee’s deed, which was offered into evidence only to show that the substitute

trustee conducted a foreclosure sale and that Bank of America was the purchaser at that sale. The

Huckleberry affidavit’s original purpose was to demonstrate compliance with statutory notice

requirements applicable to foreclosure proceedings. Whether or not the Huckleberry affidavit was

defective has no bearing on the issue before the trial court in this forcible-detainer action. Defects

in the foreclosure process or with a party’s title to property may not be considered in, and are not

relevant to, a forcible-detainer action. Williams, 315 S.W.3d at 927. The Huckleberry affidavit

included no averments germane to the forcible-detainer action.5 Thus, Chen cannot rely on any

alleged defects in the Huckleberry affidavit as a basis to assert error in the trial court’s judgment

granting possession of the Property to Bank of America. We overrule Chen’s two appellate issues.


                                           CONCLUSION

                Having overruled Chen’s appellate issues, we affirm the trial court’s judgment.



       3
          The Texas Property Code requires service on the debtor of notice of default under a deed of
trust and notice of a sale under a power of sale conferred by a deed of trust. Tex. Prop. Code § 51.002.
       4
         Despite the fact that the court conducted a de novo bench trial, counsel for Chen refers to
the exhibit as “summary judgment evidence.”
       5
          To show compliance with the requirement that notice to vacate be provided to the tenants
at sufferance, Bank of America offered the business records affidavit of Catherine Allen-Rhea. The
Allen-Rhea affidavit was admitted at trial and Chen has not challenged the admissibility of this
affidavit on appeal.

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                                          _____________________________________________

                                          David Puryear, Justice

Before Justices Puryear, Goodwin, and Bourland

Affirmed

Filed: November 2, 2018




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