AFFIRM; and Opinion Filed July 10, 2013.




                                                            In The
                                                      Court of Appeals
                                               Fifth District of Texas at Dallas

                                                         No. 05-12-00899-CV

                            KELLY J. STONEBRAKER, Appellant
                                          V.
                   FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee

                                 On Appeal from the County Court at Law No. 5
                                             Collin County, Texas
                                    Trial Court Cause No. 0055-00410-2012

                                            MEMORANDUM OPINION
                                         Before Justices Francis, Lang, and Evans
                                                 Opinion by Justice Lang
          This appeal concerns the right to possession of real property located in McKinney, Texas.

Federal National Mortgage Association (“FNMA”) initiated a forcible detainer action against

Kelly J. Stonebraker1 following a foreclosure sale of the property and Stonebraker’s failure to

vacate upon demand. In a single issue, Stonebraker, appearing pro se, argues the trial court erred

in awarding possession of the property to FNMA because the foreclosure sale violated an

automatic bankruptcy stay.2 We affirm the trial court’s judgment.

                                                    I.         BACKGROUND

          On March 13, 1998, Stonebraker and his wife Mary, as owners of the subject real

property, executed a home equity note and a home equity agreement placing a lien on the

   1
       FNMA initiated the action against Stonebraker “and/or all occupants.” However, Stonebraker appeals in his individual capacity only.
   2
       FNMA did not file a responsive brief.
property. Section 21 of the home equity agreement provided the lender with the power of sale by

foreclosure in the event of default on the note. Additionally, it required Stonebraker, Mary, or

any other occupant to surrender possession of the property if the property was sold at

foreclosure. Specifically, section 21 provided that

       [if] the Property is sold pursuant to this Paragraph 21, [Stonebraker, Mary] or any
       person holding possession of the Property through [Stonebraker and Mary] shall
       immediately surrender possession of the Property to the purchaser at that sale. If
       possession is not surrendered, [Stonebraker, Mary] or such person shall be a
       tenant at sufferance and may be removed by writ of possession.

Stonebraker and Mary defaulted on the note, and lender’s assignee of the note invoked the power

of sale under the home equity agreement. GMAC Mortgage, LLC purchased the property at the

foreclosure sale on November 1, 2011, and on November 30, 2011, conveyed the property to

FNMA.

       On December 19, 2011, after Stonebraker, Mary, and all other occupants failed to vacate

the property upon demand, FNMA instituted a forcible detainer action in justice court, pursuant

to section 24.002(a)(2) of the Texas Property Code. See TEX. PROP. CODE ANN. § 24.002 (a)(2)

(West 2000). Attached to its petition were (1) a copy of the substitute trustee’s deed showing

GMAC purchased the property at the foreclosure sale; (2) an affidavit of Melissa McClain where

she stated that notice of the foreclosure sale was mailed to Stonebraker and Mary and that “[t]o

the best of [her] knowledge and belief, [Stonebraker or Mary] had not filed any bankruptcy

proceeding pending at the time of the foreclosure sale;” (3) a copy of the warranty deed

transferring title of the property from GMAC to FNMA; (4) a copy of the home equity

agreement executed by Stonebraker and Mary; and (5) copies of the notices to vacate sent to

Stonebraker, Mary, and all occupants cautioning them that failure to move within three days of

the date the notice was delivered would result in suit being filed.




                                                –2–
            Stonebraker filed an answer “conditionally agree[ing]” with FNMA’s statement in its

petition that FNMA’s “documents mentioned and presented established [FNMA’s] right to

possession upon proof” that the documents were not “false.” However, in the answer he asserted

the documents were false and should be stricken. Specifically, he stated further that the portion

of McClain’s affidavit that averred no bankruptcy proceedings were pending was false because

Mary had filed for bankruptcy October 31, 2011 and GMAC’s legal counsel was informed of the

bankruptcy that same day. He contended the November 1st foreclosure sale was in violation of

the automatic bankruptcy stay3 and FNMA could not “prove” a lawful “right to possession.” The

justice court awarded possession to FNMA, and Stonebraker appealed to the county court at law.

            Stonebraker filed an answer in the county court similar to his answer in justice court.4 In

response, FNMA argued at the de novo bench trial that it wanted to proceed with the eviction

trial and that if Stonebraker “deemed that inappropriate . . . [he] certainly h[ad] the opportunity

to file another lawsuit indicating that it was a wrongful conviction based upon the bankruptcy.”

FNMA then offered into evidence a copy of the substitute trustee’s deed, the home equity

agreement, the special warranty deed, and a business records affidavit concerning the notices to

vacate. Based on the evidence, the trial court awarded FNMA possession of the property.

                                              II.         FORCIBLE DETAINER

                                                      A.          Applicable Law

            Forcible detainer occurs when a person, who is a tenant at sufferance, refuses to surrender

possession of real property after his right to possession has ceased. See TEX. PROP. CODE ANN. §

24.002; ICM Mortg. Corp. v. Jacob, 902 S.W.2d 527, 530 (Tex. App.—El Paso 1994, writ


     3
         See 11 U.S.C. § 362(a).
     4
         In this answer, Stonebraker also complained of an affidavit in which the affiant stated she was “retained by [FNMA] to conduct a
foreclosure sale on the property.” Stonebraker asserted that statement was “false” and should be stricken, too, “because the foreclosure sale was
initiated” by GMAC, not FNMA.



                                                                     –3–
denied). A forcible detainer action is “a summary, speedy, and inexpensive” procedure for

determining the right to immediate possession of real property where no claim of unlawful entry

exists. Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 926-27 (Tex. App.—Dallas 2010, no

pet.). To maintain the intended simplicity, the applicable rule of civil procedure, rule 746,

provides that “the only issue shall be as to the right to actual possession; and the merits of the

title shall not be adjudicated.”5                   TEX. R. CIV. P. 746; Williams, 315 S.W.3d at 927. In other

words, entitlement to possession of premises is decided “without resorting to an action upon the

title.” Rice v. Pinney, 51 S.W.3d 705, 710 (Tex. App.—Dallas 2001, no pet.) (quoting Scott v.

Hewitt, 127 Tex. 31, 35, 90 S.W.2d 816, 818-19 (Tex. 1936)). Proof of the existence of a

landlord-tenant relationship establishes a plaintiff’s entitlement to possession. Pinney, 51 S.W.3d

at 712.

                                              B.         Application of Law to Facts

           Stonebraker’s issue on appeal mirrors his argument to the trial court. He does not dispute

that (1) he defaulted on the loan, (2) the property was sold at foreclosure, (3) GMAC purchased

the property at the foreclosure sale and subsequently conveyed it to FNMA, (4) he did not

surrender possession of the property upon demand, and (5) the home equity agreement provided

that, upon sale of the property and his failure to surrender, a tenancy at sufferance was created,

which established a landlord-tenant relationship, and which established FNMA’s entitlement to

possession. See id. Rather, he disputes the validity of the foreclosure sale in light of the

automatic bankruptcy stay, which addresses the merits of the title. Because Stonebraker’s issue

as to the merits of the title may not be raised in a forcible detainer action, we resolve his sole

issue against him. See Williams, 315 S.W.3d at 927.



   5
       Any question as to the validity of a sale of property under a deed of trust may be brought in a separate suit. Williams, 315 S.W.3d at 927.



                                                                      –4–
                                III.   CONCLUSION

      Having resolved Stonebraker’s sole issue against him, we affirm the trial court’s

judgment.




                                               /Douglas S. Lang/
                                               DOUGLAS S. LANG
                                               JUSTICE


120899F.P05




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

KELLY J. STONEBRAKER , Appellant                      On Appeal from the County Court at Law
                                                      No. 5, Collin County, Texas
No. 05-12-00899-CV         V.                         Trial Court Cause No. 0055-00410-2012.
                                                      Opinion delivered by Justice Lang. Justices
FEDERAL NATIONAL MORTGAGE                             Francis and Evans participating.
ASSOCIATION, Appellee

        In accordance with this Court’s opinion of this date, we AFFIRM the trial court’s
judgment. We ORDER that appellee Federal National Mortgage Association recover its costs of
this appeal from appellant Kelly J. Stonebraker.


Judgment entered this 10th day of July, 2013.




                                                      /Douglas S. Lang/
                                                      DOUGLAS S. LANG
                                                      JUSTICE




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