




02-10-261-CV
























COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
NO. 02-10-00261-CV
 
 



Susan Couch


 


APPELLANT




 
V.
 




Federal Home Loan Mortgage Corporation


 


APPELLEE



 
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FROM County
Court at Law No. 2 OF Parker COUNTY
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MEMORANDUM
OPINION[1]
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          Appellant
Susan Couch appeals the trial court’s award of possession of a residence to Federal
Home Loan Mortgage Corporation (Freddie Mac).  We will affirm the trial court’s
judgment.
Background
Facts
          Freddie
Mac filed a petition for forcible detainer in the justice of the peace court. 
A trial was held and the court rendered judgment in favor of Freddie Mac. 
Couch appealed to the county court, which tried the case de novo.  See
Tex. R. Civ. P. 749, 751.  No reporter’s record was made of the trial.  The
county court also entered judgment in favor of Freddie Mac.  Couch now appeals
to this court.
Applicable
Law
In a
forcible detainer action, the only issue the trial court determines is whether
the party seeking to obtain possession is entitled to actual and immediate
possession, and the merits of whether a party has title shall not be
determined.  See Tex. R. Civ. P. 746; Black v. Wash. Mut. Bank,
318 S.W.3d 414, 416 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d w.o.j.); Williams
v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.—Dallas 2010, no
pet.).  Thus, questions over whether a sale of property in a deed of trust is
invalid “must be brought in a separate suit.”  Williams, 315 S.W.3d at
927; Rice v. Pinney, 51 S.W.3d 705, 710 (Tex. App.—Dallas 2001, no
pet.).  “To prevail in a forcible detainer action, a plaintiff is not required
to prove title, but is only required to show sufficient evidence of ownership
to demonstrate a superior right to immediate possession.”  Rice, 51
S.W.3d at 709.
Discussion
I.
In
her first point, Couch argues that the trial court erred in finding that there
was evidence that the demand for possession was made “by a person entitled to
possession.”  See Tex. Prop. Code Ann. § 24.002(b) (Vernon 2000).  Specifically,
she argues that the demand was made by Wells Fargo, which did not have title to
the property, and not by Freddie Mac.  She also argues that the demand was not
made in the form or manner required by section 24.005, but does not elaborate
as to what was deficient under that section.  See id. § 24.005 (Vernon Supp.
2010).
We
may sustain a legal sufficiency challenge only when (1) the record discloses a
complete absence of evidence of a vital fact; (2) the court is barred by rules
of law or of evidence from giving weight to the only evidence offered to prove
a vital fact; (3) the evidence offered to prove a vital fact is no more than a
mere scintilla; or (4) the evidence establishes conclusively the opposite of a
vital fact.  Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334
(Tex. 1998), cert. denied, 526 U.S. 1040 (1999).  In determining whether
there is legally sufficient evidence to support the finding under review, we
must consider evidence favorable to the finding if a reasonable factfinder
could and disregard evidence contrary to the finding unless a reasonable
factfinder could not.  Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d
649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827
(Tex. 2005).  When reviewing an assertion that the evidence is factually
insufficient to support a finding, we set aside the finding only if, after
considering and weighing all of the evidence in the record pertinent to that
finding, we determine that the credible evidence supporting the finding is so
weak, or so contrary to the overwhelming weight of all the evidence, that the
answer should be set aside and a new trial ordered.  Pool v. Ford Motor Co.,
715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); Garza v. Alviar, 395
S.W.2d 821, 823 (Tex. 1965).
The
demand for possession is written on the letterhead of Jack O’Boyle and
Associates, and signed by Mr. Boyle.  The letter refers to “My Client: [Freddie
Mac]” and states,
On January 5, 2010,
Wells Fargo Bank, N.A. as authorized servicing agent for [Freddie Mac],
acquired title to the above referenced property at a foreclosure sale . . . .  Pursuant
to Sections 24.002(b) and 24.005 of the Texas Property Code, my client is
obligated to terminate your tenancy at sufferance and instruct you to vacate
the property no later than three (3) days following receipt of this letter.
 
The
substitute trustee’s deed submitted by Freddie Mac lists Wells Fargo as the
mortgage servicer.  The evidence is legally and factually sufficient to support
the trial court’s finding that the demand for possession was made by a person
entitled to possession and complied with sections 24.002 and 24.005.  See
Murphy v. Countrywide Home Loans, Inc., 199 S.W.3d 441, 446 (Tex. App.—Houston
[1st Dist.] 2006, pet. denied) (holding that a demand for possession stating
that Countrywide was the authorized servicing agent for Freddie Mac was statutorily
sufficient).  We overrule Couch’s first point.
II.
          In
her second point, Couch argues that there was no evidence that she continued to
occupy the property after the demand to vacate was given to her.  The clerk’s
record shows that the officer commanded to serve the petition for forcible
retainer on Couch called the residence at issue twice after the date the notice
to vacate was given, once speaking to Couch’s son and once speaking to her husband. 
The record also reflects that Couch was served eight days after the notice to
vacate was given by posting a copy to the front door of the residence and by
mailing a copy to the residence.  We therefore hold that there is sufficient
evidence that Couch refused to vacate the premises after proper demand had been
made to do so.  See Clarkson v. Deutsche Bank Nat’l Trust Co., No.
07-10-00148-CV, --- S.W.3d ---, 2011 WL 183981, at *3 (Tex. App.—Amarillo Jan.
20, 2011, no pet. h.) (holding that more than a scintilla of evidence existed
to support finding that tenant refused to vacate when the clerk’s record
reflected that the tenants were served at the residence in question); see
also Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993) (noting
that a fact may be proved by circumstantial evidence when the fact may be
fairly and reasonably inferred from other facts proved in the case).  We
overrule Couch’s second point.
III.
          In
her third point, Couch argues that the deed tendered to the court by Freddie
Mac was insufficient to support a prima facie claim of title.  Specifically,
she argues that the affidavit does not state that it was based on the affiant’s
unqualified personal knowledge.  See Tex. Prop. Code Ann. § 51.002(e) (Vernon
Supp. 2010) (requiring the affidavit to be made by “a person knowledgeable of
the facts”).
          We
have recently held that the challenge to the sufficiency of the affidavit is an
attack on the validity of the foreclosure and sale of the property, which
cannot be raised in a forcible detainer case.  See Fleming v. Fannie Mae,
No. 02-09-00445-CV, 2010 WL 4812983, at *4 (Tex. App.—Fort Worth Nov. 24, 2010,
no pet.) (mem. op.); see also Rodriguez v. Citimortgage, Inc., No.
03-10-00093-CV, 2011 WL 182122, at *3 (Tex. App.—Austin Jan. 6, 2011, no pet.
h.) (mem. op.) (overruling same argument); Shutter v. Wells Fargo Bank N.A.,
318 S.W.3d 467, 471 (Tex. App.—Dallas 2010, pet. dism’d w.o.j.) (op. on reh’g)
(same); Williams, 315 S.W.3d at 927 (same).  In this case, Freddie Mac
proved its right to possession by presenting the substitute trustee’s deed, the
deed of trust, and the notice to vacate sent to and received by Couch.  See
Williams, 315 S.W.3d at 927.  We overrule Couch’s third point.
Conclusion
          Having
overruled all of Couch’s points, we affirm the trial court’s judgment.
 
 
 
LEE GABRIEL
JUSTICE
 
PANEL: 
DAUPHINOT,
MEIER, and GABRIEL, JJ.
 
DELIVERED:  March 24, 2011




[1]See Tex. R. App. P. 47.4.


