                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-12-00301-CV

TERRANCE T. WOODS                                                APPELLANT

                                          V.

PENNYMAC LOAN SERVICES,                                           APPELLEE
L.L.C.


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          FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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      Terrance T. Woods appeals the county court’s judgment in this forcible

detainer action in favor of Pennymac Loan Services, L.L.C. (Pennymac). Finding

no error, we affirm the judgment of the trial court.




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       See Tex. R. App. P. 47.4.
                      Factual and Procedural Background

      Terrance T. Woods and his wife purchased the residential property located

at 2716 Gillespie Court, Grand Prairie, Texas in November 2006. In order to

finance the purchase, Woods and his wife executed a Note and Deed of Trust in

favor of Wilmington Finance, Inc. (Wilmington) encumbering the property. The

Deed of Trust named Mortgage Electronic Registration Systems (MERS) as

nominee for Wilmington and as beneficiary with the authority to hold legal title to

and interest under the Deed of Trust, including the right to foreclose and sell the

property. Subsequently, MERS exercised its rights under the Deed of Trust and

sold the property at a nonjudicial foreclosure sale to Pennymac on April 3, 2012.

Three days later, on April 6, 2012, Pennymac notified Woods and his wife in

writing that they must vacate the property.        When they refused to vacate,

Pennymac instituted this forcible detainer action in justice court on April 27, 2012.

After notice and a jury trial, the justice court awarded possession of the property

to Pennymac on May 17, 2012.

      Woods, who appeared pro se in the trial court and who appears pro se in

this Court, appealed the judgment of the justice court to the county court at law.

The county court heard evidence and affirmed judgment in favor of Pennymac

awarding possession to Pennymac on July 18, 2012. This appeal followed.

      In two points, Woods maintains that the county court judgment must be

reversed because (1) the court failed to address Woods’s plea to the jurisdiction

and (2) Woods received insufficient notice to vacate pursuant to the federal


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Protecting Tenants from Foreclosure Act (PTFA), Pub. L. No. 111–22, 123 Stat.

1632, 1660–61 (2009) (codified as 12 U.S.C. § 5220 note).

                                      Analysis

Subject Matter Jurisdiction

      Woods first argues that the county court erred by failing to conduct a

hearing on his pleas challenging subject matter jurisdiction.        Subject matter

jurisdiction is essential for a court to have authority to decide a case; it is never

presumed and cannot be waived. See Alfonso v. Skadden, 251 S.W.3d 52, 55

(Tex. 2008); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000).

“Subject matter jurisdiction requires that the party bringing the suit have standing,

that there [exist] a live controversy between the parties, and that the case be

justiciable.” State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994).

Before a court may address the merits of any case, the court must determine at

its earliest opportunity whether it has the constitutional or statutory authority to

proceed. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004). The court must have jurisdiction over the party or the property

subject to the suit, jurisdiction over the subject matter, jurisdiction to enter the

particular judgment, and capacity to act as a court. Gomez, 891 S.W.2d at 245.

Whether a court has subject matter jurisdiction is a question of law we review de

novo. Miranda, 133 S.W.3d at 226. “Whether a pleader has alleged facts that

affirmatively demonstrate a trial court’s subject matter jurisdiction is a question of

law reviewed de novo. Likewise, whether undisputed evidence of jurisdictional


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facts establishes a trial court’s jurisdiction is also a question of law.”          Id.

“However, if a plea to the jurisdiction challenges the existence of jurisdictional

facts, we consider relevant evidence submitted by the parties when necessary to

resolve the jurisdictional issues raised, as the trial court is required to do.” Id. at

227.

       A forcible detainer action is a procedure by which the right to immediate

possession of real property is determined.           See Cattin v. Highpoint Vill.

Apartments, 26 S.W.3d 737, 738–39 (Tex. App.—Fort Worth 2000, pet. dism’d

w.o.j.); Tex. R. Civ. P. 746.       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, 127 Tex. 31, 35, 90 S.W.2d 816, 818–19 (Tex. 1936).

Jurisdiction to hear forcible detainer actions is vested in justice courts, and on

appeal, to county courts for trial de novo. Tex. Prop. Code Ann. § 24.004 (West

Supp. 2012), amended by Act of May 13, 2013, 83rd Leg., R.S., ch. 161, §

22.002(28), 2013 Tex. Sess. Law Serv. ____, ____ (West); Tex. R. Civ. P. 749.

To prevail in a forcible detainer action, the plaintiff need not prove title but only

sufficient evidence of ownership to demonstrate a superior right to immediate

possession. See Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557

(Tex. App.—San Antonio 2001, pet. dism’d w.o.j.).            Additionally, the mere

existence of a title dispute does not deprive a justice court or county court on

appeal of jurisdiction over a forcible detainer action. See Rice v. Pinney, 51

S.W.3d 705, 713 (Tex. App.—Dallas 2001, no pet.). “However, if the question of


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title is so intertwined with the issue of possession, then possession may not be

adjudicated without first determining title.” Dormady, 61 S.W.3d at 557. In those

cases, when possession cannot be determined until the issue of title is decided,

neither the justice court, nor the county court on appeal, has jurisdiction. Id. at

558.

       In its forcible detainer action, Pennymac pled that it was the owner of the

subject property having purchased it at a nonjudicial foreclosure sale as

evidenced by a Deed from the Substitute Trustee following the foreclosure sale.

Pennymac attached a notarized copy of the Substitute Trustee’s deed to the

pleadings with a notarized statement of facts and filed copies of several notices

demanding that Woods vacate the property.              Pennymac further pled that,

pursuant to state statute and provisions of the Deed of Trust, Woods was

required to surrender possession of the property to Pennymac but had failed to

vacate after proper notice. In response and in his plea to the jurisdiction, Woods

pled that Pennymac had no evidence supporting its right of possession and that

the court should dismiss or abate the forcible detainer action pending resolution

of Woods’s suit in federal court to determine title.

       The record before us is limited to the clerk’s record; no reporter’s record of

either hearing has been filed. The clerk’s record contains a notarized copy of the

substitute deed of trust evidencing that Pennymac purchased the property.

Woods did not plead that the Substitute Trustee’s Deed was void, only that

Pennymac lacked evidence of right to possession. Additionally, subject matter


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jurisdiction in a forcible detainer action is not defeated simply by the fact that a

concurrent suit is pending in federal court. See Scott, 127 Tex. at 35, 90 S.W.2d

at 818–19.    A forcible detainer action is cumulative of other remedies, not

exclusive.   Id.   In most cases, the right to immediate possession can be

determined separately from the right to title. See Rice, 51 S.W.3d at 710. In

fact, as previously noted, the justice court and county court on appeal lose

jurisdiction only when the issue of title and possession are so integrally linked

that the right to immediate possession cannot be determined until after the title

dispute has been decided. See Dormady, 61 S.W.3d at 558–59.

      The burden is on the appellant to see that a sufficient record is presented

to show error requiring reversal. See Christiansen v. Prezelski, 782 S.W.2d 842,

843 (Tex. 1990).     Here, the county court’s judgment reflects that the court

received and considered evidence prior to rendering its judgment. When there is

no reporter’s record made and there are no findings of fact, we presume that the

trial court heard sufficient evidence to make all necessary findings in support of

its judgment. See Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991); Vickery

v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.—Houston [14th

Dist.] 1999, pet. denied).     Based on this record, we cannot conclude that

questions of title and possession are so integrally linked that the trial court lacked

subject matter jurisdiction to adjudicate the right to immediate possession. See

Dormady, 61 S.W.3d at 558–59. Woods’s first point is overruled.




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Protecting Tenants from Foreclosure Act

      In his second point, Woods contends that Pennymac has “deemed” him a

tenant, and thus, he was entitled to ninety-day notice under the PTFA.             12

U.S.C.A. § 5220 note. Woods relies on Fontaine v. Deutsche Bank National

Trust Company, 372 S.W.3d 257 (Tex. App.—Dallas 2012, pet. dism’d w.o.j.). In

Fontaine, appellant Jarvis Fontaine appealed an adverse ruling in a forcible

detainer action on the basis that he had a valid three-year lease in the foreclosed

residential property providing him certain protections under the PTFA.          Id. at

258–59. In analyzing his claim, the Dallas court examined various provisions of

the statute including that “bona fide tenants” residing in foreclosed residential real

property are entitled to at least ninety days advance notice of their obligation to

vacate the premises before they can be evicted.         Id. at 260 (citing PTFA, §

702(a)-(b)). Appellee, Deutsche Bank National Trust Company, argued in part

that Fontaine was not entitled to the PTFA’s protections because Fontaine had

not met his burden of establishing bona fide tenancy or lease. Id. at 260–61.

The court noted that the question of burden of proof under the statute was

unclear. Id. at 261. The court further discussed that one New York court had

presumed bona fide tenancy, thus placing the burden on the successor in

interest to prove the tenancy was not bona fide. Id. The Dallas court concluded

that, in the interest of justice, the case should be remanded to permit the trial

court “to hear evidence on the bona fide status of appellant’s lease and tenancy

and on any other elements or defenses under the PTFA.” Id.


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      We find Fontaine distinguishable from the case before us. The evidence in

Fontaine established that appellant had leased the residence for a term of three

years from the property owner approximately three months prior to the property’s

foreclosure. Under the PTFA, a tenant is a person who holds a bona fide lease

entered into prior to the foreclosure that provides him or her certain rights of

occupancy after foreclosure. PTFA, § 702(a)(2)(A), 123 Stat. at 1661. Here,

Woods admitted in his own briefing that he owned the property prior to the

foreclosure sale.   Therefore, Fontaine is distinguishable and not dispositive.

Moreover, because there is no reporter’s record, we must again presume the trial

court had before it and considered all necessary facts to support the trial court’s

judgment. See Schafer, 813 S.W.2d at 155. Accordingly, we overrule Woods’s

second point.

                                   Conclusion

      We affirm the trial court’s judgment.



                                              PHYLIS J. SPEEDLIN
                                              JUSTICE

PANEL: WALKER and MCCOY, JJ.; and PHYLIS J. SPEEDLIN (Senior Justice,
Retired, Sitting by Assignment)

DELIVERED: August 22, 2013




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