AFFIRMED; Opinion Filed October 31, 2012.

In ‘[he 

## Iniirt nf prah 

## FiftIi 1iitrirt nf at Oa11a No. 05-11-01416-CV
JANOS FARKAS, Appellant V. FEDERAL NATIONAL MORTGAGE ASSOCIATION A/K/A FANNIE MAE, Appellee On Appeal from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. CC-11-06326-B



### MEMORANDUM OPINION Before Justices O’Neill, FitzGerald, and Lang-Miers Opinion By Justice Lang-Miers Janos Farkas’ appeals 

### the county court at law’sjudgment in favor ofthe Federal National Mortgage Association, also known as Fannie Mae, in a forcible detainerproceeding. In two issues, Farkas argues that Fannie Mae did not establish the required elements of’ forcible detainer and that the trial court erred in denying his plea in abatement. Because all dispositive issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm.

Mae sued Parkas and all occupants ofthe property. Both thejustice court and county court at law renderedjudgment against Parkas and all occupants. Parkas tried the case prose and only Parkas appealed thejudgment ofthe county court at law to this Court. As a result, Parkas is the only appellant before the Court.BACKGROUND On January 2, 2007, Farkas executed a promissory note secured by a (Iced oftrust for property located at 1122 Jackson Street. Number 60$, Dallas. Texas 75202. The deed identilied WR Starkey Mortgage. L.L.P. as lender. In the event that Farkas defaulted on the note, section 22 ot the deed of trust provided the lender with remedies, including the power of sale by foreclosure. Section 22 provided: Ifthe Property is sold pursuant to this Section 22, Borrower or any person holding possession ofthe Property through Borrower shall immediately surrender possession of the Property to the purchaser at that sale. If possession is not surrendered, Borrower or such person shall be a tenant at sufferance and may be removed by writ ofpossession or other court proceeding. After Farkas defaulted on the note, Aurora Loan Services, LLC’ purchased the property at a foreclosure sale, and then conveyed the property to Fannie Mae. Attorneys for Fannie Mae sent a notice to vacate to Farkas by both certified mail and first—class mail demanding that Farkas vacate the property within three days. Farkas did not vacate the property and Fannie Mae filed a forcible detainerproceeding in thejustice court against Farkas and all occupants ofthe property. Thejustice court awarded possession ofthe property to Fannie Mae. Farkas appealed to the county court at law and filed a plea in abatement in that case stating that he had also filed a case in the district court “complaining ofthe wrongful actions of [Fannie Mae] and others in the conduct ofthe foreclosure process.” He “ask[ed] the Court to abate these proceedings until a determinationofthe issues oftitle to theproperty has been made”bythe district court. The county court at law denied the plea in abatement and conducted a de novo bench trial. The court admitted the following as Fannie Mae’s exhibits without objection from Farkas: (1) a certified copy ofthe deed oftnist signed by Farkas; (2) a certified copy ofthe substitute trustee’s deed showing that Aurora was the purchaser ofthe property at the foreclosure sale; (3) a certified

### copyofthe specialwarrantydeedtransferringownership ofthepropertyfromAurorato FannieMae; 

### and (4) 

### a copy ofthe notice to vacate sentby certified and first-class mail by Fannie Mae’s counsel to Farkas and a printout from the United States Postal Service indicating that the copy sent by certified mail was unclaimed and returned. Farkas testified that he still was in possession ofthe property atthe time oftrial. The county court at law renderedjudgment awardingpossession ofthe property to Fannie Mae. This appeal followed. APPUcABLE LAW 

### In a forcible detainerproceeding, “the onlyissue shall be as totherightto actualpossession; and the merits ofthe title shall not be adjudicated.” TEx. R. Civ, P. 746; see Scott v. Hewitt, 

### 90 S.W.2d 816, 818-19 (Tex. 1936); Montgomery v. Aurora 

### Loan Servs., LLC, 375 

### S.W.3d 617, 621 (Tex. App.—DaIlas 2012,pet. filed). itis cumulative—notexclusive—ofotherremediesthataparty mayhave in the courts ofthis state, Bruce v. Fed. 

### iVat‘1 Mortg. Ass ‘n, 352 

### S.W.3d 891, 893 (Tex. App.—Dallas 2011, pet. denied). A party may bring a separate lawsuit in the district court to determine atitledispute. Id. However, atitledisputedoes notdeprive ajustice courtorcountycourt at law ofjurisdiction unless determining who has the right to immediate possession necessarily requires resolution ofthe title dispute. Id. LANDLoRD-TENANT RELATIONSHIP AND NoTIcE 

### In his first issue, Farkas argues that Fannie Mae did not establish the elements offorcible detainer. Specifically, Farkas contends that (1) Fannie Mae didnot establishthat ithad a landlordtenant relationship with Farkas and (2) Fannie Mae did not prove proper delivery ofa notice to vacate. See TEx. PROP. CODE ANN. 

## § 24.002 (West 2000), 

## § 24.005(f)—(g) (West Supp. 2012). Fannie Mae argues that Farkas has not preservedthese arguments because Farkas does not identify where in the record Farkas presented these arguments to the trial court and the trial court

—3—ruled against hin on the arguments. But we construe 

### his arguments to be a 

### legal sufficiency challenge and “[ijn a nonjury case, a complaint regarding the legal or factual insufficiency of the evidence

... may be made for the first time on appeal in the complaining partys brief.” TEx. R.
Ai’i’. P. 33.1(d). When a party challenges the legal sufficiency ofthe evidence, we consider the evidence in the light most favorable to the finding, indulging everyreasonable inference in support. See Cliv of 

### Keller u. Wilson, 168 S.W.3d 802, 

### 822 (Tex. 2005). We credit favorable evidence ifa reasonable fact-findercould and disregard contrary evidence unless a reasonable fact-findercould not. 

### See id. at 827. Ifthe evidence would permit reasonable and fair-minded people to reach the finding under review, the legal sufficiency challenge fails. See id. Landlord-Tenant Relationship Farkas argues that Fannie Mae did not establish a landlord-tenant relationship between Fannie Mae and Farkas. Without any explanation, he argues that “Fannie Mae did not provide evidence that the tenant-landlord relationship is not subject to the restriction

... by the Special Warranty [Deedi” that states “{t]his conveyance is made and accepted to subject to any and all validly existing restrictions

. . . and to any applicable zoning laws and building ordinances[.]” 2 Fannie Mae argues thatthe substitutetrustee’s deed and special warranty deed establish thatFannie Mae owned the property. Fannie Mae also contends that section 22 ofthe deed oftrust created a landlord-tenant at sufferance relationship between Aurora and Farkas at the time ofthe foreclosure sale, andthatthe special warrantydeed “extendedthe landlorditenantrelationshipto FannieMae[.]” Viewing the evidence in the light most favorable to thejudgment, we conclude that the

Farkas misquotes the special warranty deed, but this difference does not affect our analysis. The special warranty deed reads: “This conveyance is made and accepted subject to any and all validly existing restrictions

... and to any applicable zoning laws or ordinances and building use occupancy eode[.j” -4-evidence was legally sufficient to establish a landlord-tenant relationship between Fannie Mae and Farkas.See horns/u

. Sec i ofVeterans Af/,irs, No. 05—1 1-01 075-CV. 2012 WL 3525420, at *3 (Tex. App

.----Dallas Aug. 16. 2() 12, no pet.) (mern. op.) (concluding evidence including a deed of trust provision like section 22 in this case and a warranty deed conveying property to appellee was legally sufficient to establish occupant was tenant at sufferance and that appellee had acquired right to possession). We resolve this part ofFarkas’s first issue against him. Notice 

### to Vacate Farkas argues that Fannie Mae did not establish properdeliveryofthe notice to vacate and,
as a result, Fannie Mae violated section 24.005(f) and (g) ofthe property code by filing the forcible detainerproceedingbeftreproperlydelivering the noticetovacate. Theproperty codeprovides that, to prevail in a forcible cletainerproceeding, the party seeking possession must show thathe gave the occupant proper notice to vacate at least three days prior to filing suit. TEx. PROP. CoDE ANN. 

### § 24.002(b), 24.005. “Noticeby mail maybe by regular mail, byregistered mail, orby certified mail, return receiptrequested, to the premises in question.” Ic!. 

### § 24.005(f). Additionally, the dcccl oftrust provides that a notice to Farkas “shall be deemed to have been given to” Farkas “when mailed by first class mail[.]” The record shows that Fannie Mae’s counsel sent two separate copies ofthe notice, one by certified mail with return receipt requested and one by first-class mail to the property. Farkas contends that Fannie Mae did notprove properdelivery ofthe notice because Fannie Mae presented evidence that Farkas did not receive the notice sentby certified mail and the testimony concerning delivery ofthe copy sentby first-class mail was “legally insufficient evidence to prove delivery of the Notice to Vacate, because it is based on belief not on personal knowledge[.]” Fannie Mae argues that it did prove delivery through Jason Sullivan, the custodian of

### the relevant records forFannie Mae’s counsel, and that “[i]t was within the Trial Judge’s discretion to weigh the evidence with regards to the delivery of the Notice to \/acate” and that the court “determined that the prerequisite delivery occurred and that the delivery ofthe Notice to Vacate was legally sufficient.” We agree with lannie Mae. Sullivan testified that the notice was sent by “both certified and regular mail[.]” He also testifiedthatthe law firm’s standard practice when a letter is returned to the firm is “that it is imaged into the appropriate file[.]” He testified that, ifthe notice sentby first-class mail hadbeen returned to the law firm, he would have found evidence ofits return in the file. He also testified that he did not find any indication in the file thatthe notice sentby first-class mail had been returnedto the law firm. Consequently, the evidencepresented, viewed in the lightmost favorable to thejudgment, was legally sufficient to establish that Farkas was given notice to vacate. See Johnson v. Sec ‘v of VeteransA/Jiirs, No. 05-03-01560-CV, 2004 WL 1615842, at *1 (Tex. App.—Dallas July20, 2004, pet. dism’d w.o.j.) (mem. op.) (concluding appelice’s notice to vacate was sufficient when sent by first—class and certitied mail to address listed Hi deed of trust). 

### f Gore v. Homecomings Fin. Network, inc., No. 05-06-01701 -CV, 2008 WL 256830, at *2 (Tex. App.—Dallas Jan. 31, 2008, no pet.) (mem. op.) (finding that party did not meet burden to establish it gave written notice to vacate where “record affirmatively show[ed] the demand letters sent [by first-class mail and by certified mail]

. . .werereturned unopened andundelivered”). We alsoresolve this partofFarkas’s firstissue against him. PLEA IN ABATEMENT In his second issue, Farkas argues that the court erred by denying his plea in abatement because (1) there was an “existing intervening title dispute at the District Court” and (2) the court deniedhis plea “before Fannie Mae established the proofoftenant-landlord relationship[.]” Fannie

—6--Mae first contends that Farkas has not properly preserved this issue tbr appellate revie\v because he does not show where in the record he presented the issue to the trial court and where the trial court ruled on his complaint. The record shows, however, that Farkas presented his plea to the court and that the court denied his plea. We review the court’s denial ofFarkas’s plea in abatement for an abuse ofdiscretion. 

### See Lagowv. Humon rd. Roach, No. 05-10-01499-CV. 2012 WL 3636893, at *2 (Tex. App.-—Dallas August 24. 2012, no pet.); Lee v. GST Transp. Svs., LP, 334 S.W.3d 16, 18 (Tex. App—Dallas 2008, pet. denied). A trial court abuses its discretion when it acts in an unreasonable and arbitrary manner, or without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241—42 (Tex. 1985); Lagow, 2012 WL 3636893, at *2. Farkas argues that Rice v. Pinnev, 51 S.W.3d 705, 712 (Tex. App.—Dallas 2001, no pet.), and Mitchell v Armstrong Capital Coip., 911 S.W.2d 169, l7 (Tex. App.—Houston [1st Dist.] 1995, writ denied), support his argument that “Fannie Mae did not establish the proofoftenant— landlordrelationship with Farkas, therefore the Court didnothave an independentbase establishing immediatepossession withoutresolving the issue ofti[t]le to the property” and, as a result, the court didnothavejurisdiction. ButRice andtherecord in this case supportthe opposite conclusion. And,
as we discussed in Rice, Mitchell is distinguishable because, unlike the present case, the lien document at issue in Mitchell did notcreate a landlord-tenantrelationship upon defaultorany other independent grounds to establish the rightto immediatepossession. Rice, 51 S.W.3d at 711—12; see Mitchell. 911 S.W.2d at 170—7 1. The record here shows that the deed of trust established a landlord-tenant relationship between Fannie Mae and Farkas. As in Rice, “[t]his landlord-tenant relationship provided an independentbasis onwhichthetrialcourtcoulddeterminetheissueofimmediatepossessionwithout

—7—

### resolving the issue oftitle to the property.” Rice, 

### 51 S.W.3d at 712; see Bruce, 

### 352 S.W.3d at 893—94 (concluding similarprovision in deed oftrustestablished a landlord-tenantrelationship that servedas an independentbasis fordeterminingrightto immediatepossessionwithoutresolvingtitle issue); US. Bank Nat 7 Ass ‘a v, Freenev, 

### 266 S.W.3d 623, 625—26 (Tex. App.—Dallas 2008, no pet.) (same). We resolve Farkas’s second issue against him. CoNcLusioN We resolve Farkas’s 

### two issues against him and affirm thejudgment ofthe county court at law. //..7 

# 2 //



### Elthj3ETH LANi-MlER,$ J’USjCE
Ii 1416F.P05



### —8—

## (futirt of Appizthi iiftI! )iitrirt of cxu at Ja11a JUDGMENT JANOS FARKAS. Appellant No. 05-1 l-01416-CV V. FEDERAL NATIONAL MORTGAGE ASSOCIATION A/K/A FANNIE MAE, Appellee Appeal from the County Court at Law No. 

### 2 ofDallas County, Texas. (Tr.Ct.No. CC-il06326-B). Opinion delivered by Justice Lang-Miers, .Justices O’Neill and FitzGerald participating.
In accordance with this Court’s opinion ofthis date, the judgment ofthe trial court is AFFIRMED. It is ORflERED that appeiiee Federal National Mortgage Association a/k/a Fannie Mae recover its costs ofthis appeal from appellant Janos Farkas and from the supersedeas bond or cash deposit in lieu ofsupersedeas bond. After all costs have been paid, we DIRECT the clerk of

### the Dallas County court to release the balance, ifany, of

### the cash deposit in lieu of supersedeas 

### bond to Janos Farkas. .Iudgment 

### entered October 3 1, 2012.



### ,4iABET LANd-MiiRS JVTICE