Lenz v. Bank of America, N.A.
510 S.W.3d 667
| Tex. App. | 2016Background
- John and Shannon Lenz executed a 2007 promissory note secured by a deed of trust naming MERS as beneficiary; they defaulted and the property was foreclosed.
- Bank of America purchased the property at the foreclosure sale and sent the Lenzes a three-day Notice to Vacate; the Lenzes refused to leave.
- Bank filed a forcible detainer action (initially in justice court; trial de novo in county court after appeal) seeking possession; attorney Israel Saucedo signed a verification attached to the Bank’s petition.
- The deed of trust contained a foreclosure-procedure clause stating that post-foreclosure occupants become tenants at sufferance and may be removed.
- At bench trial the county court awarded possession to the Bank; the Lenzes appealed arguing (1) the petition was not properly verified and (2) the Bank lacked standing/privity and could not rely on the tenancy-at-sufferance provision.
Issues
| Issue | Plaintiff's Argument (Lenz) | Defendant's Argument (Bank) | Held |
|---|---|---|---|
| Verification: Whether Rule 510.3(a) requires the plaintiff (not its attorney) to swear the eviction petition | Rule 510.3(a) requires verification by the plaintiff; attorney-signed verification is defective and jurisdictional | Rules permit entities to act through agents; an attorney may verify on behalf of a corporate plaintiff and defects do not deprive court of jurisdiction | Court held attorney verification sufficient; defect (if any) does not strip county court of jurisdiction (followed Norvelle) |
| Tenancy at sufferance / standing: Whether Bank showed superior right to possession without proving title or being beneficiary at time of foreclosure | Bank was not beneficiary of original deed and lacked connection to substitute trustee’s deed; thus could not treat Lenzes as tenants at sufferance | Bank produced the substitute trustee’s (foreclosure sale) deed showing purchase and relied on deed-of-trust clause creating tenant-at-sufferance upon foreclosure; need not prove title in forcible detainer | Court held evidence sufficient: foreclosure deed + deed-of-trust tenancy clause + notice to vacate established Bank’s superior right to immediate possession; judgment affirmed |
Key Cases Cited
- Norvelle v. PNC Mortgage, 472 S.W.3d 444 (Tex. App.—Fort Worth 2015) (attorney verification of eviction petition on behalf of corporate plaintiff is sufficient)
- Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467 (Tex. App.—Dallas 2010) (same)
- Dormady v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555 (Tex. App.—San Antonio 2001) (plaintiff in forcible detainer need not prove title; only superior right to possession)
- Harrell v. Citizens Bank & Trust Co. of Vivian, La., 296 S.W.3d 321 (Tex. App.—Texarkana 2009) (foreclosure establishes landlord–tenant at sufferance relationship for forcible detainer)
- Clarkson v. Deutsche Bank Nat’l Trust Co., 331 S.W.3d 837 (Tex. App.—Amarillo 2011) (proof of foreclosure, substitute trustee’s deed, and notice supports right to possession)
- Villalon v. Bank One, 176 S.W.3d 66 (Tex. App.—Houston [1st Dist.] 2004) (county court may decide possession based on deed-of-trust landlord–tenant relationship without resolving title dispute)