AFFIRM; and Opinion Filed July 17, 2018.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00888-CV

                            JODI LYNN FEDDERSON, Appellant
                                         V.
                             MTGLQ INVESTORS, LP, Appellee

                       On Appeal from the County Court at Law No. 5
                                   Collin County, Texas
                           Trial Court Cause No. 005-01642-2017

                             MEMORANDUM OPINION
                        Before Justices Lang-Miers, Evans, and Schenck
                                  Opinion by Justice Schenck
       Jodi Lynn Fedderson appeals the trial court’s judgment awarding possession of certain real

property to MTGLQ Investors, LP. In her first and second issues, Fedderson urges the trial court

erred in finding she was given proper notice to vacate. We affirm. Because all issues are settled

in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

                                         BACKGROUND

       In May 2016, Misty Haven 2016 Land Trust (“Misty Haven”) purchased property located

at 2016 Misty Haven Lane, Plano, Texas 75093 (“property”) at a junior lien foreclosure sale.

Subsequently, the senior lien holder (“Lender”) foreclosed on the senior lien, and in October 2016,

MTGLQ Investors purchased the property at the foreclosure sale.

       On February 25, 2017, Fedderson and Misty Haven entered into a lease agreement,

purporting to lease the property to Fedderson. The lease agreement disclosed that Misty Haven
purchased the property subject to a superior lien and that the Lender had sold the property at a

foreclosure sale in October 2016. The lease agreement also indicated Misty Haven had filed suit

against the Lender claiming wrongful foreclosure, Misty Haven anticipated the lawsuit would not

be resolved before the end of the lease term, and provided terms of notice and consideration in the

event Misty Haven was “forced to terminate this lease early.” On April 14, 2017, MTGLQ

Investors sent a notice to vacate to Fedderson, informing her the property had been sold on October

4, 2016, and directing her to vacate the property within three days of the date the notice was

delivered.

       On April 28, 2017, MTGLQ Investors filed a petition for forcible entry and detainer against

Fedderson. The case proceeded to a hearing before the justice court, which signed an order

granting a default judgment, possession of the property, and court costs to MTGLQ Investors, and

setting an appeal bond at $5,000. Fedderson appealed the justice court’s judgment to the county

court at law, where the case proceeded to a de novo review and trial. On July 27, 2017, the county

court at law signed an order granting judgment for possession in favor of MTGLQ Investors.

Fedderson requested and the trial court signed findings of fact and conclusions of law. Fedderson

then timely filed this appeal.

                                            DISCUSSION

       To prevail in a forcible detainer action, a plaintiff is required to demonstrate (1) a superior

right to immediate possession of the property; (2) proper notice to the tenant to vacate the property;

and (3) the tenant’s refusal to vacate. See TEX. PROP. CODE ANN. §§ 24.002, 24.005; Rice v.

Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.).

       In her first issue, Fedderson urges the trial court erred in finding she had been given proper

notice to vacate when she had been given only three days to vacate the premises. She contends

that as a residential tenant, she was entitled to at least thirty days’ written notice to vacate from


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MTGLQ Investors under section 24.005(b) of the property code. Her first issue is a matter of

statutory construction, which is a legal question that we review de novo. F.F.P. Operating

Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007).

             Fedderson relies on the following language in section 24.005 of the property code:

             If a building is purchased at a tax foreclosure sale or a trustee’s foreclosure sale
             under a lien superior to the tenant’s lease and the tenant timely pays rent and is not
             otherwise in default under the tenant’s lease after foreclosure, the purchaser must
             give a residential tenant of the building at least 30 days’ written notice to vacate if
             the purchaser chooses not to continue the lease.

TEX. PROP. CODE ANN. § 24.005 (b). The record reflects, and MTGLQ Investors does not dispute,

that Fedderson did not receive thirty days’ notice. However, MTGLQ Investors points out that the

beginning of section 24.005 sets forth the general rule that tenants at will or by sufferance are

afforded three days’ notice to vacate before the purchaser of a property may initiate eviction

proceedings and that the language Fedderson relies upon is the exception to that general rule.1

MTGLQ Investors further urges that the plain language of the statute indicates the extended notice

exception applies only when the tenant has no notice of the property having been foreclosed upon.

             It is undisputed that Misty Haven purchased the property through foreclosure of a junior

lien. The successful bidder at a junior lien foreclosure takes title subject to the prior liens. See,

e.g., K.C.B. Equities, Inc. v. HSBC Bank USA, Nat’l Ass’n, No. 05-10-01648-CV, 2012 WL

1985899, at *2 (Tex. App.—Dallas June 4, 2012, no pet.) (mem. op.). Thus, Misty Haven acquired



1
    Below is section 24.005(b) in full:

             If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at least three days’ written notice to
             vacate before the landlord files a forcible detainer suit unless the parties have contracted for a shorter or longer notice period
             in a written lease or agreement. If a building is purchased at a tax foreclosure sale or a trustee’s foreclosure sale under a lien
             superior to the tenant's lease and the tenant timely pays rent and is not otherwise in default under the tenant’s lease after
             foreclosure, the purchaser must give a residential tenant of the building at least 30 days’ written notice to vacate if the
             purchaser chooses not to continue the lease. The tenant is considered to timely pay the rent under this subsection if, during
             the month of the foreclosure sale, the tenant pays the rent for that month to the landlord before receiving any notice that a
             foreclosure sale is scheduled during the month or pays the rent for that month to the foreclosing lienholder or the purchaser
             at foreclosure not later than the fifth day after the date of receipt of a written notice of the name and address of the purchaser
             that requests payment. Before a foreclosure sale, a foreclosing lienholder may give written notice to a tenant stating that a
             foreclosure notice has been given to the landlord or owner of the property and specifying the date of the foreclosure.
TEX. PROP. CODE ANN. § 24.005 (b).

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title to the property but subject to the Lender’s lien. See id. The record contains the deed of trust

foreclosed on by the Lender, which includes provisions permitting nonjudicial foreclosure and

creating a landlord and tenant-by-sufferance relationship between the Lender and Misty Haven.

See U.S. Bank Nat’l Ass’n v. Freeney, 266 S.W.3d 623, 625–26 (Tex. App.—Dallas 2008, no pet.).

As a tenant at sufferance, Misty Haven possessed no interest capable of assignment.              See

Aspenwood Apartment Corp. v. Coinmach, Inc., 349 S.W.3d 621, 632 (Tex. App.—Houston [1st

Dist.] 2011), aff’d in part, rev’d in part on other grounds, 417 S.W.3d 909 (Tex. 2013). Because

Misty Haven could not assign any interest in the property to Fedderson, it could not grant

Fedderson a tenancy to the property. See id. Nothing in the property code requires Fedderson be

provided any particular form of notice under these circumstances. C.f. TEX. PROP. CODE ANN. §§

24.001–.011. Accordingly, we overrule Fedderson’s first issue.

       In her second issue, Fedderson challenges the sufficiency of the evidence to support the

trial court’s finding that MTGLQ Investors provided her with “proper” notice to vacate. When, as

here, a party attacks the legal sufficiency of an adverse finding on an issue on which she did not

have the burden of proof, she must show no evidence exists to support the finding. See Exxon

Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011). When direct evidence of a

vital fact exists, a legal sufficiency challenge fails. See Serv. Corp. Int’l v. Guerra, 348 S.W.3d

221, 228 (Tex. 2011). While Fedderson was not entitled to notice to vacate, the record nevertheless

reflects MTGLQ Investors provided her with three days’ notice to vacate. Thus, she was given

notice equivalent to the notice that tenants at will or by sufferance are entitled to receive.

Accordingly, there is sufficient evidence to support the trial court’s finding that MTGLQ Investors

gave Fedderson proper notice. See id. We overrule Fedderson’s second issue.




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                                        CONCLUSION

      We affirm the trial court’s judgment.




                                                /David J. Schenck/
                                                DAVID J. SCHENCK
                                                JUSTICE




170888F.P05




                                              –5–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 JODI LYNN FEDDERSON, Appellant                       On Appeal from the County Court at Law
                                                      No. 5, Collin County, Texas
 No. 05-17-00888-CV          V.                       Trial Court Cause No. 005-01642-2017.
                                                      Opinion delivered by Justice Schenck,
 MTGLQ INVESTORS, LP, Appellee                        Justices Lang-Miers and Evans
                                                      participating.

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

        It is ORDERED that appellee MTGLQ INVESTORS, LP recover its costs of this appeal
and the full amount of the trial court’s judgment from appellant JODI LYNN FEDDERSON and
from SUMMIT RESIDENTIAL SERVICES, LLC as surety on appellant’s supersedeas bond.
After the judgment and all costs of appellee MTGLQ INVESTORS, LP have been paid, the
obligations of SUMMIT RESIDENTIAL SERVICES, LLC as surety on appellant JODI LYNN
FEDDERSON’s supersedeas bond are DISCHARGED.


Judgment entered this 17th day of July, 2018.




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