Opinion issued August 13, 2019




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-17-00677-CV
                           ———————————
      MONICA HARDAWAY AND GLENN HARDAWAY, Appellants
                                        V.
  DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE, IN
 TRUST FOR REGISTERED HOLDERS OF LONG BEACH MORTGAGE
  LOAN TRUST 2006-WL 1, ASSET BACKED CERTIFICATES, SERIES
                      2006-WL1, Appellee


                On Appeal from the County Court at Law No. 4
                          Fort Bend County, Texas
                    Trial Court Case No. 17-CCV-059731


                         MEMORANDUM OPINION

      Appellants, Monica Hardaway and Glenn Hardaway (collectively “the

Hardaways”), have filed a notice of appeal of the trial court’s final judgment in a

forcible detainer proceeding. Appellee, Deutsche Bank National Trust Company as
Trustee, In Trust for Registered Holders of Long Beach Mortgage Loan Trust 2006-

WL1, Asset-Backed Certificates, Series 2006-WL1 (“Deutsche Bank”), has filed a

motion to dismiss the appeal as moot contending that there is no longer an actual

controversy between the parties.

      We dismiss the appeal.

      In the underlying proceedings, Deutsche Bank filed a forcible detainer petition

in the justice court, which ruled in the Hardaways’ favor. Deutsche Bank then

appealed to the county court at law.1 In that court, Deutsche Bank moved for

summary judgment asserting that it was entitled to a judgment of possession because

the Hardaways were tenants at sufferance who did not vacate the property after they

were given proper notice. Deutsch Bank specifically asserted that (1) it was “the

foreclosure sale purchaser of the subject property as evidenced by a substitute

trustee’s deed,” (2) the “foreclosure sale was held pursuant to a Deed of Trust,

creating a landlord tenant relationship upon foreclosure,” (3) Deutsche Bank served

a written demand on the Hardaways to vacate the property and (4) they “failed to

vacate.” Deutsche Bank’s summary-judgment evidence included the substitute

trustee’s deed showing Deutsche Bank as the “Grantee/Buyer,” and the deed of trust,



1
      See TEX. R. CIV. P. 510.9. Deutsche Bank’s perfection of an appeal from the justice
      court to the county court at law vacated and annulled the justice court judgment.
      See Villalon v. Bank One, 176 S.W.3d 66, 69–70 (Tex. App.—Houston [1st Dist.]
      2004, pet. denied).
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which provided that a mortgagor who did not surrender possession of the property

to the purchaser at a foreclosure sale was a tenant at sufferance. The Hardaways

responded asserting that “no tenant-landlord relationship ever existed” because

Deutsch Bank “did not possess the Note or Deed, and had no ownership in [their]

property,” had “committed fraud,” and “the sale and purchase of [their] property was

fraudulent.”

      After a summary-judgment hearing, the trial court signed a final summary

judgment order awarding Deutsch Bank possession of the property. And, the trial

court set a “sequestration bond” in the amount of $39,500.00.2 The Hardaways filed

a notice of appeal of the final judgment but did not post a bond. Subsequently, a

writ of possession was issued and executed with possession of the property “turned

over” to Deutsch Bank.3

      Deutsch Bank has moved to dismiss the appeal as moot arguing that an actual

controversy no longer exists between the parties because it has taken possession of



2
      “A judgment of a county court may not under any circumstances be stayed pending appeal
      unless, within 10 days of the signing of the judgment, the appellant files a supersedeas
      bond in an amount set by the county court.” TEX. PROP. CODE ANN. § 24.007. If a
      supersedeas bond is not filed, “the judgment may be enforced, including issuance of a writ
      of possession evicting the [appellant] from the property.” Marshall v. Hous. Auth. of City
      of San Antonio, 198 S.W.3d 782, 786 (Tex. 2006). A party’s indigence does not relieve
      the party of the obligation to file a supersedeas bond. Morse v. Fed. Nat’l Mortg. Ass’n,
      No. 05-18-00999-CV, 2018 WL 4784585, at *1 (Tex. App.—Dallas Oct. 4, 2018, no pet.)
      (mem. op.); Johnson v. Freo Tex. LLC, No. 01-15-00398-CV, 2016 WL 2745265, at *2
      (Tex. App.—Houston [1st Dist.] May 10, 2016, no pet.) (mem. op.).
3
      See TEX. PROP. CODE ANN. § 24.0061.
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the property and the Hardaways do not assert a potentially meritorious claim of right

to current, actual possession of the property. In response, the Hardaways contend

that an actual controversy remains because the underlying “deed conveyance” and

foreclosure were fraudulent and “[c]onsequently [they] were never and are not

tenants at sufferance” and issuance of a writ of possession was unlawful. The

Hardaways do not assert in their response that they have current, actual possession

of the property.

      The only issue in a forcible detainer proceeding is the right to actual

possession of the property. See Marshall v. Hous. Auth of the City of San Antonio,

198 S.W.3d 782, 785–86 (Tex. 2006); Morris v. Am. Home Mortg. Servicing, Inc.,

360 S.W.3d 32, 34 (Tex. App.—Houston [1st Dist.] 2011, no pet.). To prevail, “the

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.” Morris, 360

S.W.3d at 34; see, e.g., Myers v. PennyMac Corp., No. 01-18-00167-CV, 2018 WL

5259963, at *2 (Tex. App.—Houston [1st Dist.] Oct. 23, 2018, no pet.). Any

challenges to title or an underlying foreclosure process must be pursued in a separate

suit. See Schlichting v. Lehman Bros. Bank FSB, 346 S.W.3d 196, 199 (Tex. App.—

Dallas 2011, pet. dism’d); see Jelinis, LLC v. Hiran, 557 S.W.3d 159, 167 (Tex.

App.—Houston [14th Dist.] 2018, pet. denied) (explaining issues concerning both

title and possession may be litigated in separate proceedings in different courts with

                                            4
appropriate jurisdiction); Morris, 360 S.W.3d at 35 (“[T]he county court can

determine possession without quieting title if the deed establishes a landlord-tenant

relationship between the borrower and the purchaser of the property at the

foreclosure sale.”).

      If an appellant is no longer in possession of the property, an appeal becomes

moot unless the appellant has and asserts “a potentially meritorious claim of right to

current, actual possession” of the property at issue. Marshall, 198 S.W.3d at 787;

see Guillen v. U.S. Bank, N.A., 494 S.W.3d 861, 865–66 (Tex. App.—Houston [14th

Dist.] 2016, no pet.). In this case, the record shows that a writ of possession was

executed and the property was “turned over” to Deutsche Bank. Because their

claims that the underlying conveyance and foreclosure were fraudulent are not

properly resolved in a forcible detainer proceeding, the Hardaways have not shown

a potentially meritorious claim of right to current, actual possession. See Roberts v.

CitiMortgage, Inc., No. 06-18-00024-CV, 2018 WL 5831333, at *2–3 (Tex. App.—

Texarkana Nov. 8, 2018, no pet.) (mem. op.); Brigandi v. Am. Mortg. Inv. Partners

Fund I Trust, No. 02-16-00444-CV, 2017 WL 1428726, at *4 (Tex. App.—Fort

Worth Apr. 20, 2017, pet. dism’d) (mem. op.); Resendez v. FV REO I, LLC, No. 03-

13-00201-CV, 2014 WL 411720, at *1 (Tex. App.—Austin Jan. 31, 2014, no pet.)

(mem. op.). As a result, there no longer is a live controversy concerning possession.




                                          5
Accordingly, we grant Deutsche Bank’s motion to dismiss and dismiss the appeal.

See TEX. R. APP. P. 43.2(f). We dismiss any other pending motions as moot.

                                 PER CURIAM

Panel consists of Justices Lloyd, Landau, and Countiss.




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