AFFIRMED; Opinion Filed January 15, 2015.




                                          Court of Appeals
                                                           S     In The


                                   Fifth District of Texas at Dallas
                                                      No. 05-13-01337-CV

                                             TINA MILES, Appellant
                                                     V.
                                      J.P. MORGAN CHASE BANK, Appellee

                                 On Appeal from the County Court at Law No. 5
                                             Dallas County, Texas
                                     Trial Court Cause No. CC-13-05404-E

                                         MEMORANDUM OPINION
                                   Before Justices Bridges, Lang-Miers, and Myers
                                              Opinion by Justice Myers
          Tina Miles appeals the trial court’s judgment awarding possession of real property to J.P.

Morgan Chase Bank in this forcible detainer suit. Miles contends the trial court erred by not

awarding her possession of the house under the federal Protecting Tenants at Foreclosure Act

(PTFA). 1 We affirm the trial court’s judgment.

                                                         BACKGROUND

          On August 7, 2012, J.P. Morgan purchased the property at issue in this case at a

foreclosure auction. On April 25, 2013, J.P. Morgan sent a letter to the occupants of the property

demanding they vacate the property. When Miles did not vacate, J.P. Morgan brought suit for




   1
       Pub. L. No. 111–22, §§ 701, 702, 123 Stat. 1632, 1660–61 (2009); 12 U.S.C. § 5220 note.
forcible detainer in justice court. The justice court awarded J.P. Morgan possession of the

property. Miles appealed to the county court at law.

       At the trial in the county court at law, J.P. Morgan presented evidence of the deed of

trust, the foreclosure of the property, J.P. Morgan’s purchase of the property at the foreclosure

auction, and the notice to vacate. Miles testified she had a lease with Roy Mitchell for ten years

at $500 per month or until she could obtain financing to purchase the property. She also testified

she stopped paying rent at Mitchell’s suggestion when the foreclosure process started. She

testified she had not paid any rent for over a year. Miles did not offer the written lease into

evidence, and the lease was not made part of the record. The trial court stated at the hearing,

“I’m not going to find that a 10-year lease is a bona fide lease . . . .” At the conclusion of the

hearing, the trial court awarded possession of the property to J.P. Morgan. Miles did not request

that the trial court make findings of fact and conclusions of law.

                                    FORCIBLE DETAINER

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

of real property where there was no unlawful entry. Rice v. Pinney, 51 S.W.3d 705, 709 (Tex.

App.—Dallas 2001, no pet.). It is intended to be a speedy, simple, and inexpensive means to

obtain possession without resort to an action on the title. Scott v. Hewitt, 90 S.W.2d 816, 818–19

(Tex. 1936); Rice, 51 S.W.3d at 709. To maintain simplicity, the applicable rule of procedure

provides that “the only issue shall be as to the right to actual possession; and the merits of the

title shall not be adjudicated.” TEX. R. CIV. P. 746. Accordingly, the only issue in a forcible

detainer action is which party has the right to immediate possession of the property. Rice, 51

S.W.3d at 709. Whether a sale of property under a deed of trust is invalid may not be determined

in a forcible detainer action but must be brought in a separate suit. Scott, 90 S.W.2d at 818; Rice,

51 S.W.3d at 710 (quoting Scott).


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       Miles argues that under the PTFA, she was entitled to keep possession of the property

through the end of the term of her lease. The PTFA provides two different types of protection to

“bona fide tenants” of residential property after a foreclosure sale. First, “the successor in

interest in such property pursuant to the foreclosure” must provide a bona fide tenant ninety

days’ notice before requiring the tenant to vacate. See Pub. L. No. 111-22, § 702(a)(1), (2), 123

Stat. 1632, 1661; 12 U.S.C. § 5220 note. Second, if a “bona fide lease” was entered into before

the notice of foreclosure, then the lease is not terminated, and the successor in interest takes the

property subject to the tenant’s rights under the lease to occupy the premises until the end of the

remaining term of the lease. § 702(a)(2)(A), 123 Stat. at 1661. The only exception is if the

successor in interest sells the property to a purchaser who will occupy the premises as his

primary residence. In that situation, the successor in interest may terminate the lease on the day

of the sale but must still provide the tenant ninety days’ notice to vacate. § 702(a)(2)(A), 123

Stat. at 1661.

       Oral statements by the trial court do not constitute findings of fact and conclusions of

law, and the court of appeals may not look to the trial court’s oral comments as being a substitute

for findings of fact and conclusions of law. In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984) (per

curiam). When a trial court makes no separate findings of fact or conclusions of law, we must

draw every reasonable inference supported by the record in favor of the trial court’s judgment.

See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); Hollingsworth v.

Hollingsworth, 274 S.W.3d 811, 815 (Tex. App.—Dallas 2008, no pet.). We imply all findings

of fact necessary to support the judgment that are supported by the evidence. BMC Software

Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). “[T]he judgment of the trial court

must be affirmed if it can be upheld on any legal theory that finds support in the evidence.”

Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex. 1977), overruled on other grounds, Cherne Indus.,

                                                –3–
Inc. v. Magallanes, 763 S.W.2d 768 (Tex. 1989); Hollingsworth, 274 S.W.3d at 815.

Nonetheless, in cases in which the appellate record includes the reporter’s record, the trial court’s

implied fact findings are not conclusive and may be challenged for legal and factual sufficiency

of the evidence supporting them. Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex. App.—

Houston [1st Dist.] 2006, pet. denied).

       In evaluating the legal sufficiency of the evidence to support a finding, we must

determine whether the evidence as a whole rises to a level that would enable reasonable and fair-

minded people to differ in their conclusions. OAIC Commercial Assets, L.L.C. v. Stonegate Vill.,

L.P., 234 S.W.3d 726, 736 (Tex. App.—Dallas 2007, pet. denied). We view the evidence in the

light favorable to the finding, crediting favorable evidence if a reasonable fact-finder could and

disregarding contrary evidence unless a reasonable fact-finder could not. City of Keller v.

Wilson, 168 S.W.3d 802, 827 (Tex. 2005). To evaluate the factual sufficiency of the evidence to

support a finding, we consider all the evidence and set aside the finding only if the evidence

supporting it is so weak or so against the overwhelming weight of the evidence that the finding is

clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam);

Young v. Young, 168 S.W.3d 276, 281 (Tex. App.—Dallas 2005, no pet.). We review implied

legal conclusions de novo. Bob Montgomery Chevrolet, Inc. v. Dent Zone Cos., 409 S.W.3d 181,

187 (Tex. App.—Dallas 2013, no pet.); Turner v. Mullins, 162 S.W.3d 356, 364 (Tex. App.—

Fort Worth 2005, no pet.). In a bench trial, it is for the court, as the trier of fact, to judge the

credibility of the witnesses, assign the weight to be given their testimony, and to resolve any

conflicts or inconsistencies in the testimony. Young, 168 S.W.3d at 281.

       Miles argues the trial court erred by stating she was not a bona fide tenant because of the

length of the lease. The PTFA describes the term “bona fide lease or tenancy” as follows:

       For purposes of this section, a lease or tenancy shall be considered bona fide only
       if—
                                                –4–
       (1) the mortgagor or the child, spouse, or parent of the mortgagor under the
       contract is not the tenant;

       (2) the lease or tenancy was the result of an arms-length transaction; and

       (3) the lease or tenancy requires the receipt of rent that is not substantially less
       than fair market rent for the property or the unit’s rent is reduced or subsidized
       due to a Federal, State, or local subsidy.

Pub. L. 111-22, § 702(b), 123 Stat. at 1661. The PTFA does not state that the length of a lease is

a factor for determining whether a lease is a bona fide lease or tenancy under the PTFA.

However, the trial court’s statement at trial about the lease not being a bona fide lease because of

its ten-year term cannot substitute for written findings of fact and conclusions of law. In re

W.E.R., 669 S.W.2d at 716. Because Miles did not request and the trial court did not make

findings of fact and conclusions of law, we must uphold the trial court’s judgment on any legal

theory supported by the evidence. Worford, 801 S.W.2d at 109.

       In this case, the only evidence of Miles’s lease is her testimony about the lease. The

written lease itself was not offered or admitted into evidence. Miles testified she had been

paying rent of $500 per month until Mitchell told her to stop paying rent. After that, she paid no

rent for over a year. From this evidence, the trial court could conclude the lease was not a bona

fide lease or tenancy under the PTFA because Mitchell had not been requiring the payment of

rent. Therefore, Miles’s tenancy was for rent that was substantially less than fair market rent for

the property. See Pub. L. 111-22, § 702(b)(3), 123 Stat at 1661. We conclude the evidence is

sufficient to support the trial court’s implied finding that Miles’s lease was not a bona fide lease

or tenancy. Miles has not shown the trial court erred by determining that J.P. Morgan was

entitled to immediate possession of the property. We overrule Miles’s issue on appeal.




                                                –5–
                                      CONCLUSION

      We affirm the trial court’s judgment.




                                                    /Lana Myers/
                                                    LANA MYERS
131337F.P05                                         JUSTICE




                                              –6–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

Tina Miles, Appellant                                On Appeal from the County Court at Law
                                                     No. 5, Dallas County, Texas
No. 05-13-01337-CV         V.                        Trial Court Cause No. CC-13-05404-E.
                                                     Opinion delivered by Justice Myers. Justices
J.P. Morgan Chase Bank, Appellee                     Bridges and Lang-Miers participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee J.P. Morgan Chase Bank recover its costs of this appeal
from appellant Tina Miles.


Judgment entered this 15th day of January, 2015.




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