Isaac v. CitiMortgage, Inc.
563 S.W.3d 305
Tex. App.2018Background
- Jerome and Michelle Isaac defaulted on their 2012 home loan; CitiMortgage purchased 123 Dana Drive at a nonjudicial foreclosure sale on February 5, 2013.
- The Isaacs unsuccessfully challenged the foreclosure in district court; the court rendered a take‑nothing judgment, affirmed on appeal by the Third Court of Appeals.
- In September 2016 CitiMortgage sent written notices to vacate to the Isaacs at the Property and filed a verified forcible‑detainer petition in justice court in October 2016; the petition was verified by CitiMortgage’s attorney.
- The justice court awarded possession to CitiMortgage; the Isaacs appealed to the county court and filed pleas disputing jurisdiction and pleading defects but presented no evidence at the trial de novo.
- At the county bench trial CitiMortgage introduced the Deed of Trust (containing a post‑foreclosure tenancy‑at‑sufferance clause), the Substitute Trustee’s Deed, notices to vacate, business‑records affidavits, and the earlier adverse appellate decision; the court awarded immediate possession to CitiMortgage.
Issues
| Issue | Plaintiff's Argument (Isaacs) | Defendant's Argument (CitiMortgage) | Held |
|---|---|---|---|
| Jurisdiction / title defects | Apparent defects in chain of title required dismissal or abatement; title dispute divests court of jurisdiction | Forcible detainer limited to right to immediate possession; CitiMortgage showed sufficient evidence of ownership and a landlord‑tenant (tenant at sufferance) relationship | Trial court had subject‑matter jurisdiction; title dispute did not bar forcible detainer |
| Verification of petition | Verification invalid because not sworn by plaintiff/corporate officer but by plaintiff’s attorney | Attorney verification is permitted where attorney has personal knowledge and acts as agent; defective verification does not deprive jurisdiction | Attorney’s verification was sufficient; any defect did not deprive court of jurisdiction |
| Tenant‑at‑sufferance / privity | CitiMortgage failed to connect Deed of Trust and Trustee’s Deed to establish tenancy at sufferance or privity | Deed of Trust contains tenancy‑at‑sufferance clause; Substitute Trustee’s Deed shows purchase at foreclosure — together establish landlord‑tenant relationship | Deed of Trust plus Trustee’s Deed sufficed to show tenancy at sufferance; privity argument rejected |
| Evidence of refusal to vacate | CitiMortgage presented no evidence Isaacs refused to vacate after demand | Notices to vacate (certified mail), service of suit at the Property, and Isaacs’ continued appellate actions/supersedeas show they remained in possession | More than a scintilla of evidence showed Isaacs refused to vacate; finding affirmed |
Key Cases Cited
- Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468 (Tex. 2012) (subject‑matter jurisdiction review and dismissal rule)
- Trimble v. Fed. Nat'l Mortg. Ass'n, 516 S.W.3d 24 (Tex. App.—Houston [1st Dist.] 2016) (forcible detainer requires only evidence of superior right to immediate possession)
- Marshall v. Housing Authority of San Antonio, 198 S.W.3d 782 (Tex. 2006) (purpose and scope of forcible‑detainer actions)
- Murphy v. Countrywide Home Loans, Inc., 199 S.W.3d 441 (Tex. App.—Houston [1st Dist.] 2006) (elements required where property sold at foreclosure)
- Ezell v. Wells Fargo Bank, N.A., 410 S.W.3d 919 (Tex. App.—El Paso 2013) (landlord‑tenant relationship post‑foreclosure can support forcible detainer)
- Black v. Washington Mut. Bank, 318 S.W.3d 414 (Tex. App.—Houston [1st Dist.] 2010) (forcible detainer cannot resolve title disputes beyond immediate possession)
- Norvelle v. PNC Mortgage, 472 S.W.3d 444 (Tex. App.—Fort Worth 2015) (attorney verification of eviction pleading can satisfy Rule 510.3)
- Lenz v. Bank of Am., N.A., 510 S.W.3d 667 (Tex. App.—San Antonio 2016) (same: attorney verification acceptable)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (no‑evidence standard for appellate review)
- Mekeel v. U.S. Bank Nat'l Ass'n, 355 S.W.3d 349 (Tex. App.—El Paso 2011) (evidence sufficient to show refusal to vacate may include service at property and appeal bond)