Luis R. Colon v. Wilmington Savings Fund Society, FSB, D/B/A Christiana Trust, Not Individually but as Trustee for Pretium Mortgage Acquisition Trust
02-16-00113-CV
| Tex. App. | Jul 27, 2017Background
- Appellant Luis R. Colon obtained a mortgage secured by a deed of trust on 12634 Bay Avenue, Euless, Texas, and later defaulted.
- Wilmington Savings Fund Society (Wilmington) purchased the property at a nonjudicial foreclosure sale and sent notices to vacate; Colon failed to vacate.
- Wilmington filed a forcible detainer action; at the county court de novo Wilmington introduced: a certified deed of trust signed by Colon, a substitute trustee’s deed conveying the property to Wilmington, and business-records evidence of the notices to vacate.
- Colon filed a plea in abatement and argued Wilmington’s justice-court pleading failed to comply with Tex. R. Civ. P. 510.3(a), that Wilmington lacked standing/title, that Wilmington was not in privity to enforce the deed’s tenancy-at-sufferance clause, and that business records were inadmissible.
- The trial court awarded possession to Wilmington; Colon presented no evidence at trial and his post-trial motion for new trial was denied.
Issues
| Issue | Plaintiff's Argument (Colon) | Defendant's Argument (Wilmington) | Held |
|---|---|---|---|
| 1. Whether Wilmington’s pleading satisfied Tex. R. Civ. P. 510.3(a) (verification) | The petition was invalid because it was not sworn to by the plaintiff (Wilmington) | The amended petition was verified by Wilmington’s counsel who swore she had authority and personal knowledge; this satisfies the rule under Norvelle | Verification by counsel was sufficient; Norvelle upheld; point overruled |
| 2. Standing/title: whether Wilmington lacked standing to seek possession due to title defects | Wilmington cannot prove it is properly in the chain of title; therefore pleading invalid | Standing in forcible detainer focuses on superior right to possession, not perfect title; Wilmington presented deed, trustee’s deed, and notices | Court held title dispute was not shown and evidence sufficed to establish Wilmington’s superior right to possession; point overruled |
| 3. Whether Wilmington can enforce deed’s tenancy-at-sufferance clause absent privity | Wilmington not in privity with Colon and thus cannot rely on tenancy-at-sufferance language | A purchaser at a foreclosure sale acquires the right to possession and can enforce tenancy-at-sufferance; privity is not required | Court held privity not required; tenancy-at-sufferance applies to purchaser; point overruled |
| 4. Admissibility of business records (notices to vacate) | Business-record evidence should not have been considered | The records were admitted at trial; no contemporaneous objection was made | Claim not preserved for appellate review; point overruled |
Key Cases Cited
- Norvelle v. PNC Mortg., 472 S.W.3d 444 (Tex. App.—Fort Worth 2015) (verification by counsel can satisfy Rule 510.3(a))
- Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169 (Tex. App.—Houston [1st Dist.] 1995) (title issues deprive justice court only when title is intertwined with possession)
- Rice v. Pinney, 51 S.W.3d 705 (Tex. App.—Dallas 2001) (forcible detainer requires superior right to possession, not proof of title)
- ICM Mortg. Corp. v. Jacob, 902 S.W.2d 527 (Tex. App.—El Paso 1994) (tenant at sufferance need not be in privity with purchaser/owner)
- Lenz v. Bank of Am., N.A., 510 S.W.3d 667 (Tex. App.—San Antonio 2016) (continued possession after notice creates tenancy at sufferance enforceable by purchaser)
- Bushell v. Dean, 803 S.W.2d 711 (Tex. 1991) (issues not raised at trial are not preserved for appeal)