Alfred Gaber v. U.S. Bank National Association as Legal Title Trustee for Truman 2016 SC6 Title Trust
02-20-00376-CV
Tex. App.Nov 18, 2021Background
- In 2016 Gaber defaulted on a home-equity loan; the bank obtained a foreclosure judgment and later bought the property at the nonjudicial foreclosure sale via a substitute trustee’s deed.
- The Bank mailed a notice to vacate; Gaber refused to leave, so the Bank filed a verified forcible detainer petition in justice court.
- The justice court awarded possession to the Bank; Gaber appealed to the county court at law (trial de novo).
- Gaber raised multiple challenges focused on the substitute trustee’s deed: he argued the deed was invalid because it derived from an "impermissible" counterclaim in prior litigation, so the Bank lacked standing and could not demand possession.
- The county court admitted the substitute trustee’s deed, the foreclosure judgment, the deed of trust (showing tenancy at sufferance), and the Bank’s notice to vacate with a business-records affidavit; the court found the Bank had the superior right to immediate possession.
- Gaber also argued the Bank’s petition was not properly verified and that evidence was legally insufficient to show he refused to vacate; the court rejected those arguments and granted the writ of possession.
Issues
| Issue | Plaintiff's Argument (Gaber) | Defendant's Argument (Bank) | Held |
|---|---|---|---|
| Validity/admissibility of substitute trustee’s deed | Deed invalid because it flowed from an "impermissible" counterclaim in earlier suit; therefore Bank lacked right to possession and standing in forcible detainer | Deed and prior foreclosure judgment established Bank’s superior right to immediate possession; deed defects/titling disputes must be litigated in separate suit, not forcible detainer | Court rejected Gaber’s rehashed counterclaim argument (already rejected on appeal) and held deed evidence sufficient for possession determination |
| Whether deed-of-trust tenancy-at-sufferance language and substitute deed can be used to show superior right | Such provisions/exhibit inadmissible because deed was invalid and not properly authenticated | Deed and deed of trust are competent evidence of purchase and tenancy at sufferance; authentication objections were waived | Court held deed and deed of trust provided sufficient evidence of Bank’s superior right; authentication objection waived for failure to object |
| Verification of forcible detainer petition | Petition invalid because only counsel (not the bank) verified it; Rule 510.3(a) requires plaintiff to swear | Attorney may verify on behalf of corporate plaintiff as its agent; controlling precedents permit counsel verification | Court held counsel’s verification was proper and overruled Gaber’s challenge |
| Sufficiency of evidence that Gaber refused to vacate | Bank’s proof inadequate to show refusal to vacate | Bank produced notice to vacate with certified-mail tracking, verified petition averring refusal, Gaber appealed and posted bond/paid rent (showing he remained in possession) | Court found legally sufficient evidence of refusal to vacate and upheld possession judgment |
Key Cases Cited
- Marshall v. Housing Auth. of City of San Antonio, 198 S.W.3d 782 (Tex. 2006) (forcible-detainer judgment determines immediate possession, not title)
- Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467 (Tex. App.—Dallas 2010) (title/foreclosure defects not resolved in forcible detainer)
- Mekeel v. U.S. Bank Nat’l Ass’n, 355 S.W.3d 349 (Tex. App.—El Paso 2011) (same)
- Norvelle v. PNC Mortgage, 472 S.W.3d 444 (Tex. App.—Fort Worth 2015) (attorney may verify suit on behalf of corporate plaintiff)
- Jimenez v. McGeary, 542 S.W.3d 810 (Tex. App.—Fort Worth 2018) (followed Norvelle on verification)
- Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471 (Tex. 2017) (standards for reviewing implied findings and forcible-detainer elements)
- Isaac v. CitiMortgage, Inc., 563 S.W.3d 305 (Tex. App.—Houston [1st Dist.] 2018) (verified pleadings plus notice can support refusal-to-vacate finding)