Mekeel v. U.S. Bank National Ass'n ex rel. Holders of the CSFB Mortgage Pass-through Certificates
2011 Tex. App. LEXIS 6776
Tex. App.2011Background
- Mekeel defaulted on a deed of trust securing real property at 6405 Hampton Court, The Colony, Texas; a substitute trustee’s deed conveyed the property to U.S. Bank on August 4, 2009.
- Select Portfolio Servicing, Inc., the mortgage servicer, sent a notice to vacate to Mekeel after foreclosure.
- A forcible detainer action was filed in Denton County justice court and judgment for possession was entered for Select Portfolio; appeal led to a trial de novo.
- Exhibits included the substitute trustee’s deed, an affidavit, a Notice of Trustee’s Sale naming U.S. Bank and Select Portfolio, a notice to vacate, and the deed of trust.
- The county court at law again granted immediate possession to the Bank; Mekeel sought a new trial which was granted, and amended pleadings were later filed.
- On appeal, Mekeel challenges pleading validity, notice sufficiency, reliance on the substitute trustee’s deed for title, and post-demand occupancy evidence; the court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of the amended petition and affidavits | Mekeel contends the pleading and verification were defective | Bank contends amended petition superseded original; verification sufficient | Issue One overruled |
| Compliance with Texas Property Code—notice and form | Notice to vacate not issued by person entitled to possession and improper form | Notice identified servicing agent and complied with §24.002 and §24.005 | Issues Two/Three: notice adequate and deed sufficient to prove possession; no reversal |
| Substitute trustee’s deed and prima facie proof of title | Documents show Bank’s title and right to possession; affidavit defects not fatal | Affidavit weakness attacked; foreclosure validity not reviewable in forcible detainer | Issue Three overruled; title proof adequate for possession |
| Sufficiency of evidence of refusal to vacate after demand | There was a written demand and evidence Mekeel refused to vacate | No evidence of refusal presented | Issue Four overruled; scintilla of evidence supports refusal to vacate |
Key Cases Cited
- Williams v. Bank of New York Mellon, 315 S.W.3d 925 (Tex.App.-Dallas 2010) (for forcible detainer purposes, title not adjudicated; possession determined by landlord-tenant relationship)
- Rice v. Pinney, 51 S.W.3d 705 (Tex.App.-Dallas 2001) (forcible detainer; merits of title not adjudicated)
- Marshall v. Housing Authority of the City of San Antonio, 198 S.W.3d 782 (Tex. 2006) (forcible detainer standards; speedy, simple possession remedy)
- Scott v. Hewitt, 90 S.W.2d 816 (Tex. 1936) (historical framework for forcible detainer; resolution of possession without title litigation)
- Cattin v. Highpoint Village Apartments, 26 S.W.3d 737 (Tex.App.-Fort Worth 2000) (tenancy at sufferance arising from deed of trust foreclose; possession determined separately from title)
- Dormady v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555 (Tex.App.-San Antonio 2001) (landlord-tenant basis independent of title in forcible detainer)
- Gibson v. Dynegy Midstream Services, L.P., 138 S.W.3d 518 (Tex.App.-Fort Worth 2004) (no need to prove full title; evidence suffices to show superior right to possession)
- Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467 (Tex.App.-Dallas 2010) (foreclosure validity not reviewable in forcible detainer; title defects belong to separate action)