Opinion issued October 30, 2014.




                                    In The

                             Court of Appeals
                                   For The

                          First District of Texas
                           ————————————
                             NO. 01-13-00459-CV
                           ———————————
                  MELISSA FORD BIERWIRTH, Appellant
                                      V.
                          AH4R I TX, LLC, Appellee


             On Appeal from the County Civil Court at Law No. 2
                           Harris County, Texas
                       Trial Court Case No. 1027657


                          MEMORANDUM OPINION

      Melissa Ford Bierwirth appeals the county court’s final judgment granting

AH4R I TX, LLC, possession of a residential property in Katy, Texas, after a

bench trial. We affirm.
                                   Background

      In 2005, Bierwirth, then known as Melissa Ford, executed a promissory note

and deed of trust granting Fieldstone Mortgage Company a security interest in a

property located in Katy, Texas. The deed of trust provides that, in the event of a

foreclosure sale, Bierwirth must surrender possession of the property:

      If the Property is sold pursuant to this Section 22, Borrower or any
      person holding possession of the Property through Borrower shall
      immediately surrender possession of the Property to the purchaser at
      that sale. If possession is not surrendered, Borrower or such person
      shall be a tenant at sufferance and may be removed by writ of
      possession or other court proceeding.

In the deed of trust, Fieldstone appointed a nominee, Mortgage Electronic

Registration Systems, Inc., to act on its behalf. MERS then assigned Fieldstone’s

rights under the deed of trust to HSBC Mortgage Services, Inc.

      Bierwirth defaulted on the loan, and HSBC appointed a substitute trustee.

AH4R purchased the property in a foreclosure auction on November 6, 2013.

Bierwirth contends that she did not receive timely notice of the sale, although

AH4R produced an affidavit stating that it mailed notice to Bierwirth at least 21

days before the sale.

      Bierwirth filed suit against Fieldstone, HSBC, MERS, and AH4R in district

court, alleging wrongful foreclosure and seeking to quiet title. Meanwhile, AH4R

demanded in writing that Bierwirth surrender the property. When she failed to do

so, AH4R filed a forcible detainer action in justice court to evict Bierwirth. The


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justice court awarded possession to AH4R. Bierwirth appealed to the county court,

arguing that the justice court lacked jurisdiction over the forcible detainer action

due to the pending trespass to try title action. The county court held a de novo

bench trial and entered judgment in favor of AH4R. This appeal followed.

        Bierwirth raises seven arguments on appeal. She first argues that the county

court should have abated the forcible detainer action pending the outcome of the

trespass to try title action because the foreclosure was conducted improperly.

Second, she argues that the county court should have abated the forcible detainer

action as a matter of logic because the title issues should be resolved first. Third,

she asserts that HSBC could not sell the property because it did not satisfy all

requirements imposed on foreclosure sales by the Texas Property Code. Fourth,

she argues that the lien was improperly assigned and that HSBC fabricated the

deed of trust, rendering that document unenforceable. Fifth, she argues that the

affidavit attached to the Substitute Trustee’s Deed was deficient and contained

inadmissible hearsay. Sixth, she contends that she did not receive sufficient notice

of AH4R’s business records affidavit under Texas Rule of Evidence 902. Finally,

Bierwirth suggests that, because Fieldstone is not registered with the Secretary of

State of Texas and because MERS has never been so registered, AH4R lacks

standing to bring its forcible detainer action under the Business and Organizations

Code.



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      Because standing is a jurisdictional issue and therefore a prerequisite to our

consideration of the merits of the case, we address Bierwirth’s last argument first.

Douglas v. Delp, 987 S.W.2d 879, 883 (Tex. 1999).

                                     Standing

      Bierwirth’s seventh argument is that AH4R lacks standing to bring a forcible

detainer suit because neither Fieldstone nor MERS, Fieldstone’s nominee, is

currently registered with the Secretary of State of Texas, as an entity must be to

maintain an action in a Texas court. See TEX. BUS. ORGS. CODE ANN. § 9.051(b)

(West 2012). It is undisputed that AH4R itself is registered with the Secretary of

State. Bierwirth, however, explains that MERS, acting for Fieldstone, assigned the

mortgage to HSBC, which sold the property to AH4R. Because Fieldstone and

MERS are not registered with the Secretary of State, Bierwirth reasons that they

could not make this assignment to HSBC and therefore AH4R lacks standing to

bring suit in Texas. She concludes that AH4R “obtained its interest from HSBC,

and because HSBC got its authority from foreign entities not registered to conduct

business in Texas the ensuing judgment is void as a matter of law.”

A.    Standard of review

      “Whether a party has standing to maintain a suit is a question of law, which

we review de novo.” Hobbs v. Van Stavern, 249 S.W.3d 1, 3 (Tex. App.—




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Houston [1st Dist.] 2006, pet. denied) (citing Tex. Dep’t of Transp. v. City of

Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004)).

      “Standing is a prerequisite to subject-matter jurisdiction, and subject-matter

jurisdiction is essential to a court’s power to decide a case.” Bland Indep. Sch.

Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000) (citation omitted). “In order for

any person to maintain a suit it is necessary that he have standing to litigate the

matters in issue.” Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984). “Standing

consists of some interest peculiar to the person individually and not as a member of

the general public.” Id. Standing may be raised by a party for the first time on

appeal or may be considered by the court sua sponte. Tex. Ass’n of Bus. v. Tex. Air

Control Bd., 852 S.W.2d 440, 445–46 (Tex. 1993). Standing cannot be waived or

conferred by agreement. Id.; Green Tree Servicing, LLC v. Woods, 388 S.W.3d

785, 790 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

B.    AH4R has standing

      Bierwirth argues that either AH4R’s interest in the property is derivative of

the interest originally held by Fieldstone and assigned to HSBC by MERS or

AH4R sought relief on behalf of one of those other entities. She concludes that

AH4R can maintain its suit only if its predecessors in interest could do so. We

disagree, for at least two reasons.




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      First, the interest that AH4R asserts is not derivative, nor does AH4R assert

it on behalf of any other entity. AH4R sued Bierwirth in its own name as the

owner of the property itself, not in a representative capacity or as the owner of

Fieldstone’s or HSBC’s security interest in the property under the mortgage note.

Indeed, Fieldstone, MERS, and HSBC no longer claim any right to the property.

Rather, all such rights were conveyed to AH4R when it purchased the property.

Texas courts look at “the nature of the wrong and to whom the relief should go” in

determining the capacity in which the plaintiff brought its claims, as well as

whether a cause of action is direct or derivative. Shirvanian v. DeFrates, 161

S.W.3d 102, 110 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (distinction

between direct and derivative claims); see also Rodarte v. Investeco Grp., L.L.C.,

299 S.W.3d 400, 413 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (Frost, J.,

concurring) (discussing how courts determine capacity). AH4R has not sought

relief on behalf of any other entity, but seeks to possess the property itself.

Bierwirth does not articulate any argument regarding why AH4R’s claim should be

treated as derivative or representative, rather than direct. We hold that AH4R has

asserted a direct, not derivative, claim, and the standing of its predecessors to

maintain an action in Texas is irrelevant to its forcible detainer action.

      Second, even if AH4R’s interest were somehow derivative of an interest

held by Fieldstone or MERS, Section 9.051(b) of the Business Organizations Code



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does not apply to (1) holders in due course of negotiable instruments, such as the

mortgage note, or (2) bona fide purchasers for value of negotiable instruments.

TEX. BUS. ORGS. CODE ANN. § 9.051(b); see also Bierwirth v. Fed. Nat’l Mortg.

Ass’n, No. 03-13-00076-CV, 2014 WL 902541, at *1 (Tex. App.—Austin Mar. 6,

2014, no pet. h.) (mem. op.) (enforcement of right to possession of property

through forcible detainer action does not constitute “transaction of business” under

Business Organizations Code). Thus, if Fieldstone had still held the note when

Bierwirth defaulted, Fieldstone could have enforced the loan without registering in

Texas. See Bierwirth, 2014 WL 902541, at *1 (enforcing rights under mortgage

does not constitute “transaction of business” requiring registration with Secretary

of State); TEX. BUS. ORGS. CODE ANN. §§ 9.051(b), 9.251(12)(C) (West 2012)

(same). Even if we were to treat AH4R’s interest in the property as somehow

derivative of the interest held by Fieldstone and later by HSBC, Section 9.051

would not deprive AH4R of standing.

      We overrule Bierwirth’s seventh issue.

                    Abatement and Alleged Defects in Title

      Bierwirth’s first five issues all turn on alleged defects in the foreclosure

proceedings. Specifically, in her first and second issues, Bierwirth argues that the

county court erred by not abating the forcible detainer proceeding until the

resolution of the district court action to quiet title. First, she argues that the



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foreclosure sale was improperly conducted, that AH4R cannot take possession of

the property because the sale itself was defective, and that she is therefore entitled

to an abatement of the forcible detainer action. Next, she argues that the title

dispute and the dispute over possession are so inextricably intertwined that

abatement was mandatory.

      Her third through fifth issues are direct attacks on AH4R’s title. In the third

issue, Bierwirth argues that HSBC failed to satisfy all conditions of the Texas

Property Code before selling the property.        Fourth, she contends that HSBC

fabricated the deed of trust upon which it relied in foreclosing on the property.

Finally, she contends that the affidavit attached to the Substitute Trustee’s Deed

contains inadmissible hearsay, rendering the foreclosure sale void.

      For the reasons that follow, we reject all of these arguments.

A.    Standard of review

      “The only issue in a forcible detainer action is the right to actual possession

of the premises,” and the trial court may not consider whether the foreclosure and

ensuing sale were proper. Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d

782, 785 (Tex. 2006); Bierwirth, 2014 WL 902541, at *1 (in forcible detainer

action, trial court cannot determine validity of sale under deed of trust); Fontaine v.

Deutsche Bank Nat’l Trust Co., 372 S.W.3d 257, 259 (Tex. App.—Dallas 2012,

pet. dism’d w.o.j.) (“Whether a sale of property under a deed of trust is invalid may



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not be determined in a forcible detainer action . . . .”); see also Bierwirth v. Fed.

Nat’l Mortg. Ass’n, No. 03-12-00271-CV, 2014 WL 858677, at *3 (Tex. App.—

Austin Feb. 27, 2014, no pet. h.) (mem. op.) (in forcible detainer action, trial court

cannot determine validity of sale).

      But “a justice court or county court at law is not deprived of jurisdiction

[over a forcible detainer claim] merely by the existence of a title dispute.” Rice v.

Pinney, 51 S.W.3d 705, 713 (Tex. App.—Dallas 2001, no pet.); see also

McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex. 1984); Girard v. AH4R I TX

DFW, LLC, No. 02-13-00112-CV, 2014 WL 670198, at *2 (Tex. App.—Fort

Worth Feb. 20, 2014, no pet.) (mem. op.); Chinyere v. Wells Fargo Bank, N.A., 01-

11-00304-CV, 2012 WL 2923189, at *2–3 (Tex. App.—Houston [1st Dist.] Jul.

12, 2012, no pet.); H.K. Dev., Inc. v. Nguyen, 229 S.W.3d 415, 444 (Tex. App.—

Houston [1st Dist.] 2007, no pet.). The justice court—and, on appeal, the county

court—may proceed with the forcible detainer action even if a district court has

entered an interlocutory order determining the parties’ immediate rights to

possession and even if the question of ultimate possession might be decided

differently. Nguyen, 229 S.W.3d at 444.

      “However, if the question of title is so intertwined with the issue of

possession, then possession may not be adjudicated without first determining title.”

Dormady v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555, 557 (Tex. App.—San



                                          9
Antonio 2001, pet. dism’d w.o.j.). “In such a case involving a genuine issue of

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

at 558; see also Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex.

App.—Houston [1st Dist.] 1995, writ denied). “Whether a trial court has subject-

matter jurisdiction is a question of law subject to de novo review.” Tex. Natural

Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002); see also

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

B.    The county court had jurisdiction over the forcible detainer suit

      Bierwirth’s first, third, fourth, and fifth issues all directly address the

ultimate question of title, not immediate possession. The justice court and, on

appeal, the county court could not consider those issues. Fontaine, 372 S.W.3d at

259; see also Gardocki v. Fed. Nat’l Mortg. Ass’n, No. 14-12-00921-CV, 2013

WL 6568765, at *4 (Tex. App.—Houston [14th Dist.] Dec. 12, 2013, no pet.)

(“Justice courts are expressly denied jurisdiction to determine or adjudicate title to

land. . . . [But t]he mere existence of a title dispute will not deprive the justice

court of its jurisdiction.”). Because those issues were not before the county court,

we cannot find that it erred in refusing to consider them. Prudential Ins. Co. of

Am. v. J.R. Franclen, Inc., 710 S.W.2d 568, 569 (Tex. 1986) (“An appellate court

is not authorized to reverse a trial court’s judgment in the absence of properly

assigned error.”); see also TEX. R. APP. P. 33.1(a) (as prerequisite to appeal, party



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must present complaint to trial court and obtain ruling or refusal to rule); Tex.-Ohio

Gas., Inc. v. Mecom, 28 S.W.3d 129, 140 (Tex. App.—Texarkana 2000, no pet.)

(trial court errs if it bases order on issues not before the court at the time of its

order). Accordingly, we overrule Bierwirth’s first, third, fourth, and fifth issues.

      But, as Bierwirth argues in her second issue, “if the question of 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. If the issues are so

intertwined, then neither the justice court nor the county court on appeal had

jurisdiction over AH4R’s forcible detainer claim.        Id.; see also Mitchell, 911

S.W.2d at 171.

      “Whether an existing title dispute in another court deprives the justice and

county courts of jurisdiction to adjudicate possession in forcible-detainer actions

generally turns on whether there is a basis—independent of the claimed right to

title—for the plaintiff’s claim of superior possession rights in the property.”

Chinyere, 2012 WL 2923189, at *3. Among other ways, AH4R could establish

such an independent basis by showing the existence of a landlord-tenant

relationship. Morris v. Am. Home Mortg. Servicing, Inc., 360 S.W.3d 32, 34 (Tex.

App.—Houston [1st Dist.] 2011, no pet.) (“The existence of a landlord-tenant

relationship provides a basis for the court to determine the right to immediate

possession without resolving the question of title.”); see also Gardocki, 2013 WL



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6568765, at *4 (“So long as the landlord–tenant relationship is established in the

deed of trust, the county court can determine the issue of immediate possession

without inquiring into the merits of the title.”); Chinyere, 2012 WL 2923189, at

*4–5 (courts consistently hold that trial court may determine issue of possession

when deed of trust establishes landlord–tenant relationship).

      A plaintiff in a forcible detainer action “is not required to prove title, but is

only required to show sufficient evidence of ownership to demonstrate a superior

right to immediate possession.” Morris, 360 S.W.3d at 34. Under well-settled

law, a deed of trust that establishes a landlord-tenant relationship between the

borrower and the purchaser of the property at the foreclosure sale demonstrates

such a superior right to possession. Id. at 34–35; Villalon v. Bank One, 176

S.W.3d 66, 71 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (“The landlord–

tenant relationship established in the deed of trust provided a basis for the county

court to determine that [the bank] had the right to immediate possession without

resolving whether [the bank] wrongfully foreclosed on the property, an issue

relating directly to who has title to the property.”); Dormady, 61 S.W.3d at 559

(“The landlord–tenant relationship [in the deed of trust] provides a basis for

determining the right to immediate possession without resolving the ultimate issue

of title to the property.”); Bruce v. Fed. Nat’l Mortg. Ass’n, 352 S.W.3d 891, 893




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(Tex. App.—Dallas 2011, pet. denied) (same holding); Rice, 51 S.W.3d at 712

(same holding).

      The deed of trust makes Bierwirth a tenant at sufferance in the event of

foreclosure if she fails to surrender possession of the property. Although Bierwirth

disputes the propriety of the foreclosure, there is no dispute that HSBC did

foreclose and that Bierwirth failed to surrender the property. Thus, Bierwirth

became a tenant at sufferance, and this landlord-tenant relationship gives AH4R a

basis for its forcible detainer action independent of its claim to title in the property.

Gardocki, 2013 WL 6568765, at *3 (“[W]here a deed of trust provides that in the

event of foreclosure, the previous owner will become a tenant at sufferance if he

does not surrender possession, the trial court can resolve possession without resort

to title.”); Chinyere, 2012 WL 2923189, at *4–5; Morris, 360 S.W.3d at 34. The

justice court and county court therefore did not need to determine whether HSBC

satisfied all conditions precedent to the tenancy-at-sufferance clause or properly

executed the foreclosure sale. See Gardocki, 2013 WL 6568765, at *4 & n.3

(holding same and collecting cases).

      We overrule Bierwirth’s second issue.

                       Notice of Business Records Affidavit

      In her sixth and sole remaining issue, Bierwirth argues that the county court

erred in failing to rule on her objection that AH4R failed to serve its business



                                           13
records affidavit in a timely manner. Specifically, she argues that Texas Rule of

Evidence 902(10) entitles her to notice that AH4R intended to use the affidavit at

least fourteen days before trial, but that she had only eleven days’ notice. In its

form at the time of the bench trial, Rule 902(10) provided, in relevant part:

      Any record or set of records . . . which would be admissible under
      Rule 803(6) or (7) shall be admissible in evidence in any court in this
      state upon . . . affidavit . . . provided further, that such record or
      records along with such affidavit are filed with the clerk of the court
      for inclusion with the papers in the cause . . . at least fourteen days
      prior to the day upon which trial of said cause commences, and
      provided the other parties to said cause are given prompt notice by the
      party filing same of the filing of such record or records and
      affidavit . . . .

TEX. R. EVID. 902(10). 1 AH4R filed the affidavit in March 2013, more than two

months before the May 2013 trial. Bierwirth argues, however, that AH4R did not

timely serve the affidavit, thus she did not receive timely notice.

      Bierwirth also argues that the affidavit contains substantive defects, namely

that the affiant did not demonstrate her personal knowledge of the facts therein and

did not properly authenticate the documents as certified copies of public records.

See TEX. R. EVID. 902(4) (public records are self-authenticating, as are

compilations of data from public records certified as correct by an authorized

person). Finally, she implies that the records themselves were not made and kept

1
      Rule 902(10) has been amended during the pendency of this appeal. See Tex. Sup.
      Ct. Misc. Docket No. 14-9080 (amending Rule 902(10) effective Sept. 1, 2014).
      The amendments, however, have no retroactive effect and would not affect our
      analysis of this appeal.

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in the course of a regularly conducted business activity and therefore constitute

hearsay not covered by the business records exception to the hearsay rule. See

TEX. R. EVID. 802 (“Hearsay is not admissible except as provided by statute or

these rules . . . .”), 803(6) (records made and kept in course of regularly conducted

business activities not excluded by hearsay rule).

      Although Bierwirth filed a motion to strike the affidavit on the day of trial,

she failed to obtain a ruling on the motion. Moreover, the record does not reflect

that she ever objected to the affidavit on substantive grounds, much less obtained a

ruling.

      As a prerequisite to presenting a complaint for appellate review, the
      record must show that: (1) the complaint was made to the trial court
      by a timely request, objection, or motion . . . and (2) the trial court:
      (A) ruled on the request, objection, or motion, either expressly or
      implicitly; or (B) refused to rule on the request, objection, or motion,
      and the complaining party objected to the refusal.

TEX. R. APP. P. 33.1(a). The record shows only that Bierwirth filed a motion to

strike the affidavit the morning of trial, asking the trial court to strike the affidavit

“for undue and unnecessary surprise.” It does not show that she obtained a ruling

on the motion or that the county court refused to rule on the motion. Further,

because there is no reporter’s record in this case, the record is silent as to whether

AH4R actually relied upon the business records affidavit at trial. We therefore

cannot say that the county court implicitly denied the motion. Thus, nothing in the




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record indicates that Bierwirth has preserved her complaints regarding the business

records affidavit for appeal.

      Because Bierwirth failed to preserve her sixth issue for appeal, we overrule

it.

                                   Conclusion

      Because we have found no error in the county court’s judgment, we affirm.




                                             Harvey Brown
                                             Justice

Panel consists of Justices Massengale, Brown, and Huddle.




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