                             NUMBER 13-13-00393-CV

                                 COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


HILARIO VILLANUEVA AND
GRACIELA VILLANUEVA,                                                                Appellants,

                                                 v.

DEUTSCHE BANK NATIONAL
TRUST COMPANY AS TRUSTEE FOR THE
CERTIFICATE HOLDERS OF THE MORGAN
STANLEY ABS CAPITAL I INC. TRUST
2003-NC10, MORTGAGE PASS THROUGH
CERTIFICATES SERIES 2003-NC10,                                                        Appellee.


                 On appeal from the County Court at Law No. 4
                        of Williamson County, Texas.1


                                MEMORANDUM OPINION

                  Before Justices Garza, Perkes, and Longoria

        1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has

been transferred to this Court from the Third Court of Appeals in Austin, Texas. See TEX. GOV'T. CODE
ANN. § 73.001 (West, Westlaw through 2013 3d C.S.).
                    Memorandum Opinion by Justice Perkes
      Appellants Hilario Villanueva and Graciela Villanueva (Villanueva) appeal a final

judgment of possession in a forcible detainer suit brought by appellee, Deutsche Bank

National Trust Company as Trustee for the Certificate Holders of the Morgan Stanley ABS

Capital I Inc. Trust 2003-NC10, Mortgage Pass Through Certificates Series 2003-NC10

(Deutsche Bank).     By two issues, Villanueva contends: (1) the county court lacked

jurisdiction to hear the case; and (2) the county court abused its discretion by excluding

evidence regarding the issue of title to real property. We affirm.

                     I.    FACTUAL AND PROCEDURAL BACKGROUND

      Villanueva executed a note and deed of trust in favor of New Century Mortgage

Corporation (New Century) for the purchase of a home. The deed of trust included the

following clause:

      If the property is sold [at a foreclosure sale], 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.

      Villanueva defaulted under the terms of the note, subjecting the property to

foreclosure proceedings. Recontrust Company, N.A., serving as substitute trustee, sold

the home to Deutsche Bank at a non-judicial foreclosure sale. Approximately six months

after purchasing Villanueva’s home, Deutsche Bank sent a written notice to Villanueva

instructing him and all occupants to vacate the home. After Villanueva refused to vacate

the home, Deutsche Bank filed a forcible detainer suit in the justice of the peace court.




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No answer appears in the record. The justice court found in favor of Deutsche Bank and

Villanueva appealed to the county court.

        During the hearing in the county court, Deutsche Bank introduced the deed of trust,

notice to vacate, and the substitute trustee’s deed.2 Villanueva’s attorney attempted to

question Villanueva about whether New Century sent him a notice of acceleration or

default. The county court sustained Deutsche Bank’s objection on relevance grounds,

pointing out that the court cannot determine questions of title, only questions regarding

possession. Villanueva’s attorney responded as follows:

        What we are trying to establish so that if we are going to use Paragraph 22
        of the Deed of Trust to substantiate a tenant at sufferance relationship, we
        then also should, per [Texas Rules of Evidence Rule] 106, allow the entirety
        of the trust to be entered into the record and discussed. If the lender, as
        defined in the Deed of Trust New Century, failed to do something, that
        failure would impact today. And that's exactly what's going on. My client
        is going to offer testimony that says specifically that New Century never sent
        him notice, never sent him acceleration notices. He never received any
        notices whatsoever from New Century.3

        Deutsche Bank responded that the deed of trust was offered to establish that

Villanueva entered a contractual agreement that if there was a foreclosure sale on the

home, Villanueva would vacate the property or become a tenant at sufferance. The

substitute trustee’s deed established that a foreclosure occurred, triggering the conditions

precedent under the deed of trust, thereby making Villanueva a tenant at sufferance.


        2  The trial court overruled Villanueva’s reliability and authenticity objections to the substitute
trustee’s deed. Villanueva did not object to the deed of trust and notice to vacate. Villanueva has not
brought an issue on appeal challenging any of the three exhibits.

        3 Rule 106 states that when a writing or recorded statement or part thereof is introduced by a party,

an adverse party may at that time introduce any other part or any other writing or recorded statement which
ought in fairness to be considered contemporaneously with it. TEX. R. EVID. 106. The deed of trust,
however, was admitted in its entirety.

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        The county court ruled in favor of Deutsche Bank and issued a final judgment of

possession. This appeal ensued.

                     II.     JURISDICTION OF JUSTICE AND COUNTY COURTS

        By his second issue,4 Villanueva contends the county court “erred in continuing

with the hearing despite the fact that it lost jurisdiction of the case upon entry of the deed

of trust [into evidence], because a title issue so intertwined with possession was created.”

Villanueva complains that the county court refused to allow him “to prove that parts of the

deed of trust were ignored by the original lender and their successor . . . .” Villanueva

asserts that had he been allowed to show that the lender failed to follow the proper

foreclosure procedure, Deutsche Bank’s right of possession would have been invalidated,

thereby causing the title issue to be so intertwined with the possessory issue that the

county court lost jurisdiction.

A.      Applicable Law

        The purpose of a forcible entry and detainer action is to provide a party with an

immediate legal remedy to obtain possession. Falcon v. Ensignia, 976 S.W.2d 336, 338

(Tex. App.—Corpus Christi 1998, no pet.) (citing Home Sav. Ass'n v. Ramirez, 600

S.W.2d 911, 913 (Tex. App.—Corpus Christi 1980, writ ref'd n.r.e.)). Justice courts may

adjudicate possession even when issues related to the title of real property are

tangentially or collaterally related to possession. Id.; see McGlothlin v. Kliebert, 672

S.W.2d 231, 233 (Tex. 1984); Home Sav. Ass'n, 600 S.W.2d at 913–14; Fry v. Ahrens,

256 S.W.2d 115, 116–17 (Tex. Civ. App.—Galveston 1953, no writ). The right to


        4 We have taken Villanueva’s issues out of order to first address the issue that would grant the
greatest relief on appeal.
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immediate possession may be determined separately from the right to title in most cases,

and the Texas Legislature purposely established just such a system. Rice v. Pinney, 51

S.W.3d 705, 710 (Tex. App.—Dallas 2001, no pet.); see Scott v. Hewitt, 90 S.W.2d 816,

818 (Tex. 1936) (holding that the provision in a deed of trust that made defaulting grantor

a tenant at sufferance was valid and able to support a forcible detainer action).

       However, if the question of title is so integrally linked to the issue of possession so

that possession may not be determined without first determining title, justice and county

courts are without jurisdiction to make any determinations regarding title. Mitchell v.

Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex. App.—Houston [1st Dist.] 1995, writ

denied); Johnson v. Fellowship Baptist Church, 627 S.W.2d 203, 204 (Tex. App.—Corpus

Christi 1981, no writ). Rather, district courts have sole jurisdiction to adjudicate title to

real property. TEX. CONST. art. 5, § 8; TEX. GOV'T CODE ANN. § 26.043 (West, Westlaw

through 2013 3d C.S.); Falcon, 976 S.W.2d at 338.

B.     Analysis

       Specific evidence of a title dispute is required to raise an issue of a justice court's

jurisdiction. See Sparkman v. State, 968 S.W.2d 373, 377–78 (Tex. App.—Tyler 1997,

no pet.) (citing Mitchell, 911 S.W.2d at 170 (holding appellant raised title as an issue in

the justice court and county court at law by asserting that substitute trustee's deed held

by appellee was void, and by specifically giving notice that litigation was pending in the

district court to set aside the non-judicial foreclosure sale)). In this case, however, no

genuine title dispute was ever raised in either the justice court or county court because

Villanueva did not file any pleadings or counterclaims to raise that issue.          Further,


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Villanueva did not give any kind of notice that litigation was pending in a district court to

set aside the non-judicial foreclosure sale. See Yarto v. Gilliland, 287 S.W.3d 83, 87

(Tex. App.—Corpus Christi 2009, no pet.); Mitchell, 911 S.W.2d at 170.

       Villanueva cites A Plus Investments v. Rushton, where the county court lacked

jurisdiction to consider a forcible detainer case due to an interrelated title issue. See No.

2-03-00174-CV, 2004 WL 868866, at *2 (Tex. App.—Fort Worth Apr. 22, 2004, no

pet.)(mem. op.). A Plus, however, is factually distinguishable. In that case, the county

court lacked jurisdiction because at the same time the forcible detainer was pending in

county court, the district court heard a suit challenging title to the property at issue in the

forcible detainer. See id.; Mitchell, 911 S.W.2d at 170 (holding that since there was an

unresolved title dispute involving the same parties and same property pending in the

district court at the time of the forcible detainer action, the county court had no jurisdiction

over the forcible detainer). In this case, there is no evidence in the record of a separate

lawsuit challenging title, and Villanueva’s apparent challenge of the foreclosure process

does not prevent the county court from determining possession. See Pinnacle Premier

Props., Inc. v. Breton, 447 S.W.3d 558, 564 (Tex. App.—Houston [14th Dist.] 2014, no

pet.) (op. on reh'g) (holding that no intertwined title issue existed when the defendants'

title dispute was based entirely on contentions that the foreclosure sale was conducted

improperly and that the lender had assigned the note to another bank).

       We overrule Villanueva’s second issue.




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                              III.   EXCLUSION OF EVIDENCE

      By his first issue, Villanueva argues the county court “abused its discretion after

allowing the deed of trust into evidence” by sustaining “an objection from [Deutsche

Bank’s] counsel when [Villanueva’s] counsel initiated a line of questioning involving

obligations created in the deed of trust for [Deutsche Bank], pursuant to Texas Rules of

Evidence 106.”

A.    Standard of Review

      We review a trial court's decision to exclude testimony under an abuse of discretion

standard. Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986); Durham Transp.,

Inc. v. Valero, 897 S.W.2d 404, 415 (Tex. App.—Corpus Christi 1995, writ denied). To

determine if there is an abuse of discretion, we must look to see if the trial court acted

without reference to any guiding rules and principles. Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

B.    Analysis

      Villanueva, other than the inclusion of Rule 106 in its issue, has failed to specifically

include any argument on Rule 106 in his brief. Further, the substance of Villanueva’s

argument challenges the reliability of the substitute trustee’s deed under Texas Rule of

Evidence 902(2). He complains that it was “not reliable and was a fraud because of the

requirements in the agreement [Deutsche Bank] and the servicer detailed in the pooling

and servicing agreement [between them].” Villanueva contends that “[h]ad the court

allowed the pooling and servicing agreement[,] then the court could have accurately

ascertained whether [Deutsche Bank] legally gained the right to possession pursuant to


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the pooling and servicing agreement.” Villanueva seemingly complains he should have

been permitted to submit this evidence to raise a factual dispute regarding whether

[Deutsche Bank] would be able to “trace its rights under the security instrument back to

the original mortgagee.”5

        Villanueva references a “Morgan Stanley Countrywide Pooling and Service

Agreement”, which he attempted to enter as a trial exhibit. Villanueva argues that this

agreement would somehow show a defect in the title transfer and prevent Deutsche Bank

from asserting a superior right of possession. However, the record does not show that

any pooling and servicing agreement was ever marked as an exhibit, and the reporter’s

record does not reference it in the exhibit index on appeal. Furthermore, Villanueva did

not make an offer of proof at trial regarding this piece of evidence. See TEX. R. EVID.

103(a)(2); Akin v. Santa Clara Land Co., 34 S.W.3d 334, 339 (Tex. App.—San Antonio

2000, pet. denied) (explaining that when a trial court rules evidence is not admissible and

excludes it, the party who offered the evidence should make an offer of proof to get the

evidence into the record for the appeal).

        None of Villanueva’s arguments address the trial court’s purported abuse of

discretion and Villanueva fails to explain how his arguments relating to title prohibit a

determination of possession. See Fandey v. Lee, 880 S.W.2d 164, 169 (Tex. App.—El



        5  Villanueva references Leavings v. Mills for the proposition that “factual disputes may arise when
the party seeking to foreclose is not the original mortgagee . . . In such cases the foreclosing party must be
able to trace its rights under the security instrument back to the original mortgagee.” 175 S.W.3d 301, 310
(Tex. App.—Houston [1st Dist.] 2004, no pet.). He notes that “[i]n order to enforce the note as a holder
and move forward with foreclosure, a party who is not the original lender must prove successive transfers
of possession and endorsement establishing an unbroken chain of title.” Id. This case is not a foreclosure
action.

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Paso 1994, writ denied) (holding that in a forcible detainer suit the defendants' affirmative

defense that the plaintiffs had perpetrated fraud upon the defendants by falsely agreeing

to sell them the property had “no . . . relevancy to the question of which party had the right

to immediate possession of the premises”). We disagree that the trial court abused its

discretion and overrule Villanueva’s first issue.

                                    IV.     CONCLUSION

       We affirm the judgment of the county court.


                                                    GREGORY T. PERKES
                                                    Justice

Delivered and filed the
12th day of February, 2015.




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