## In the

Court of Appeals

Second Appellate District of Texas

at For t Worth

___________________________

No. 02

- 23

- 00352

- CV

___________________________

On Appeal from County Court at Law No. 1

Tarrant County, Texas

Trial Court No. 2023

- 000705 -1

Before Sudderth, C.J.; Bassel and Womack, JJ.

Memo randum Opinion by Justice Bassel 

### V ICENTE 

### P AULIN 

### J R



### . , Appellant

V



### .

M OHAMED 

### G HANEM 

### , Appellee2 MEMORANDUM OPINION

I. Introduc tion

T his is a forci b le

- detainer case

. Appellant Vicente Paul in Jr. appeals from a

judgment awarding possession of the property at issue to Appellee Moham ed

Ghanem

. Paulin rai ses f iv e point s. Hav ing previously analyzed the ex act points t ha t

he ra ises under facts anal og ous t o those here, we see no reason to depart from our

prior preced ent. 1 We therefore affirm.

1 This cou rt has previously analyzed the exact issues that are ra ise d in this

a pp eal, as they were previously raised by Pau lin ’s attorney in prior appeals, an d each

issue was overruled

. See Austin v. M&T Bank

, No. 02

- 23

- 00050

- CV, 2023 WL

8643024

, at *1–6 ( Tex. App.

— Fo rt Worth Dec. 14, 2023, pet. filed) ( mem. op.); Gaber

v. U.S. Ba nk N at ’l Ass ’n

, No. 02

- 20 -0 0376

- CV, 2 02 1 WL 5367851, at *1–6 (Tex.

App.— Fort Wort h Nov. 18, 2021, pet. denied ) (mem. op.) ; Ro s alez v. Foson Inv s., LLC

, No. 02

- 20

- 00023

- CV, 2021 WL 19 18755, at *1–4 ( Tex. Ap p.

— Fo rt Worth May 13,

2021, pe t. de nied) (mem. op.) ; Ask ew v. Mena Homes, Inc.

, No. 02 -19- 00181 -C V, 2020

WL 579121, at *1 –3 (Tex . Ap p. —Fort Worth Feb. 6, 2020, pet

. denied ) (me m. op.) ; Martinez v. Cerberus SFR Holdin gs, L.P.

, No. 02

- 19

- 00076 -C V, 20 19 WL 5996984

, at

*1–9 (Tex. App.

— Fort Wor th Nov. 14, 2019, pet

. denied ) (mem. op.) ; s ee als o En riquez

v. Cap

. Plus Fin., LLC , No. 02

- 19

- 001 84

- CV, 2020 WL 719441, at *1–3 (Tex. App.—

Fo rt Worth Feb. 13, 2020, no pet. ) (mem

. op.) ( raisin g f our of the sa me iss ues

— all of

w hi ch were overruled). Paulin ’s bri ef

, however, fails to cite any of the se dispositive

c ases from th is court

. See S tandards fo r Appellate Conduct, Lawyers’ Duties to the Cour t

¶ 4, Te xas Rules of Court (State) 324

– 25 (West 2023) (“Counsel wi ll advise the Court

of controlling legal authorities

, including those adverse to their position, and shoul d

not c ite authority t ha t h as been reversed, overruled, or restricted without i nform ing

the court of those limitations.”) ( available at http://www.txc ourts.gov/media/

1437423/ standards

- for

- appellate

- conduct.pdf ); Tex. Dis ciplinary Rules P rof ’l

Conduct R. 3 .03(a)(4), reprinted in Tex. Gov ’t Code Ann.

, tit. 2, subtit. G, app. A ( Tex.

St ate B ar R. ar t. X, § 9) ( explaining candor t oward the tribunal and stat ing that “ [a]

lawyer shall not knowin gly

. . . fail to disclose to the tribunal authority in the

controll ing jurisdiction known to the lawye r to be directly adverse to the position of

t he client and not disclosed by opposing counsel ” ). B ecause Paulin ’s brief is almost3 II. Background

Ghanem purchased the property at issue at a foreclosure s ale and receiv ed a

Substitute Trustee ’ s Deed after he p aid for the property. Ghanem then sent Paulin

“a nd all occupants ” of the property a thirty

- day notice to vacate. Ghanem also sent a

three

- day notice to vacate prio r to fi ling the eviction suit. Paulin did not vac ate the

property

.

Ghanem fi led a forcible

- detainer suit against Paulin in ju stice court and

obtained a judgment granting Ghanem possession of the property

. Paulin appealed

that judgment to the cou nty court at law ( the trial court)

. Paulin also file d a p lea in

abatement ( challenging Ghanem ’s standing and presuit notice) , a plea to the

jurisdiction, and an original answer subject to his plea ; he later filed a fir st amended

plea

.

At the outset of the b ench trial, the trial court de nied Paul in ’s plea in aba tement

and plea to the jurisdiction

. The trial court then proceeded to receive evidence and to

hear arg ument in the f orcible

- detainer suit. Ghanem introduce d certified copies o f

the “ Homestead Lien Contract and Deed of Trust ” (d eed of trust) that was ori ginally

foreclosed that previously secured the proper ty , t he Substitute Trustee ’ s Deed from

an exact duplicate of the appellant ’s b rief that was filed in Aus tin , we rely heavily on

th at opinion. See 2023 WL 8643024 , at *1–6.4 th e fore c losure sale, 2 and copies of the notice s to vacat e with the ir certified

- mail

re ceipt s

. Although th e Su bstitute Trustee ’ s Deed was admitt ed without objectio n,

Paulin ’ s attorney later argued that Ghanem “ can ’ t pr ove up the contents of his deed ,”

but the trial court overruled t he obj ection. After heari ng arguments, the trial court

granted Ghanem possess ion o f the prop erty and signed a judgment to that effe ct

. 3

The trial cou rt also s igned an order setting the super sedea s bond amount at $5 ,000.

The following week, the county clerk issued a writ of pos session. The

constable filed a d ocument stating that the re turn was “ unexe cuted ” because Paulin

had been grante d a stay and that the writ had expired.

P aulin filed a motion for new trial to which Ghanem responded. The m otion

was overruled b y operation of law , and this appeal followed.

III. Applicable Law

A t enant a t sufferance commits a forcible det a iner when h e re fuses t o

sur render possessi on of real property on written demand by the person entitled to

2 A ttached to the Substitute Trustee ’s Deed is the judgment of foreclosure from

the 153 rd District Court of Tar rant County in Cause Number 153

- 308854

- 19, s tyled

JP Morgan Chase B ank, National Association v. Louis B onaldi III, Christine Presley, Ange la

Carrizale s, Tina Commins, and The Unkno wn Heirs at Law of Lou is J. Bonaldi [] Jr. A lso

a ttached to t he S ubstitute Trustee ’s Deed is an affidavit from Cindy Mendoza , who is

described as the authorized agent of McCarthy & Holthus, LLP (the at to rney for JP

Morgan Chase Bank, N.A.). The affidav it states that it was made to “ the best of [her ]

know ledge a nd belief. ”

3 Although Paulin requested findings of facts and conclusions of law

, the record

does not contain a request fo r past

- due findings, nor does it co nta in a ny f

indings of

fact and conclusions of law

. See Tex. R. Civ. P. 296, 297.5 possessi on of t hat property. See Te x. Prop. Code Ann. § 24.002. A plaintiff in a

forcible

- detainer suit c an esta blish “the superior rig ht to immed i ate possessi on b y

estab lishi ng the fact of a foreclosure pursuant to a deed of trust that created a tenancy

at suff er ance after the foreclosure .” Askew

, 2020 WL 579121, at *1

– 2 ; Martinez

, 2019

WL 5996984, at *2

.

The onl y issue that the trial co urt determines in a fo rcib le

- deta iner action is the

r ight to actual and immediate possession of the property. See Coinmach C or

p. v.

Aspenwood Apartment Corp.

, 417 S.W.3d 909, 919 (Tex. 2013); Marshall v. Hous. Auth. o f

the City of San Antonio , 198 S.W.3 d 782, 78 7 (Tex. 2006). To prevail in s uch an action,

a plaintiff is not required to prove title; it is required only to show su ffici ent evidence

of owner ship d emonstrating a superior right to immediate possession of the prop erty.

Askew

, 2020 WL 579121, at * 2

. Defects i n title or in the forec losure process cannot

be determined in a fo rcible

- detainer action. E.g.

, Williams v . B an k of N.Y. Mellon , 315

S.W. 3d 925, 927 (Tex. App.

— Dallas 2010, no pet.) ; see Tex. R. Civ. P. 510.3 (e) (s t ating

th at in a forcibl e

- detainer actio n , “[t]h e co urt mus t adj udicate the rig ht to actual

possession and not title”). “The arena to challenge the prop riety of a foreclosure” is

not in a forcible

- detainer action but “in a separate suit for wrongful f orec l osure or to

set aside a s ubstitute trus t ee’s de ed.” Marti nez

, 2019 WL 5996984 , at *3

. When, as

here, “a foreclosure pursuant to a deed of trust establ ishes a landlord and tenan t

- at

sufferance relationship betwee n the part ies, the trial court has a n inde p endent basis to

determi ne the issue of i mmediat e po ssessio n wit hout resolving the issue of title to the6 property.” Reard e an v. Fed. Home Loan Mortg. Cor p. , N o. 03

- 12

- 00562

- CV, 20 13 WL

4487523, at *3 (Tex. App.

— Aust in Aug. 1 4, 2013, no pet.) (mem. o p. ).

I V . Analysis

As we thoro ug hly explained i n Marti nez

, most o f the points raised by Paulin are

based on challenge s to the S ubstitute T rustee ’ s D eed by whic h Ghanem claims a

s uperior right to possession of the property, and Paulin cannot attac k the f orm of th e

deed in a for cible

- de tainer action. 2 0 19 WL 5 996984, at *3

– 6. We need not r epeat

that expository here but will i nstead move forward with a ddres sing why each of

Paulin ’ s point s fails and att em p t to address the mul tifarious, repetitive a rguments th at

he r aises within each point.

A. Presuit Demand for Possession

In his first po int

, Paulin argue s that “ t h ere was not a statutorily s ufficient

pre []s uit demand for possession to s upport [ Gha nem ’ s ] claims. ” Paulin co rrectly cit e s

the gove r ni ng s t atute for a for cible

- de tainer action that specifies a dema nd fo r

possession “ must be made in writing by a p e rson entitled to possession o f the

property and must comply with the requirement s for notice to vacat e under Sectio n

2 4 .005. ” See Tex. Prop. Code A nn. § 24.002(b). In turn, the basic requirements for a

no tice t o vacate to a tenant at suf f

er ance (such as Paulin became in accordan c e with

the deed of trust after the fore closure on the subject p ropert y) a re a s follows: “ If the

occupant is a tena nt at w ill or by sufferance, the landlord must give the tenant at l eas t

three days ’ written notice to vacate before t he landlord fi l es a for c ible[

- ]detainer suit7 unless the parties have contracted for a shorter or longer notice period in a written

lease or ag ree m ent. ” See id. § 24.00 5(b).

Paulin ’ s argum ent has as its b asis an attack on the affidavit attached to the

S ubstitute Trust ee ’ s D ee d, 4 and he makes no challenge to the form o r timing of the

notice s to vac a te. Indeed, the evi dence establishes that th e noti ce s were prepared by

Texas Eviction Services at Ghanem ’ s re quest and o n his behalf and that he sealed the

envelopes and mailed the notices himself. T he thirty

- day notice sent on October 5,

2022 , stated,

The property located [at] 3401 NW 2 8 Stre e t[

, ] Fort Worth, Texas

7610 6[,] was sol d to our Client und er a power of sa le contained in a deed

of trust securing said property. Title [u]nder the sale has been duly

p erfected. The new owner (s ) Moh am ed Ghanem, seeks to recover

possession of the p roperty in good faith.

Our Cli ent has requested that we notify you that pursuan t to the

Texas Property Code, Section 24.005, you are he reby DEMAND[ED] to

move and vacate thes e premises, along with all your personal belongings,

within THIRTY (30) days fro m the d ate of this l etter.

. . .

4 Paulin argue s that because the affidavit was defective

, the Subst itute Trustee ’s

Deed does not show Ghanem ’s right to possess ion, and thus it does not show that

G hanem was a pe rson aut hor ized to make a demand for possession. We rej ect that

argument later in the opinion under the lack

- of

- standing heading.

P aulin also makes a pass ing statement that the Substitute Trustee ’s Dee d was

treated by the trial cou rt as evidenc e of its contents despite “Ghanem ’s

acknowledgement in testimony of his lack of knowledge of the underlying facts. ”

Paulin, however, does not point us to the place in the record that he relies on for this

statement. Moreover, t he record d emonstrates t hat when Gh anem was asked by

Paulin ’s counsel how he had personal knowledge that the property was posted for sale

be cause of a default under the deed of trust, Ghanem responded that he and his team

had done “ research in regard [] to the auction .” And with regard to t he presuit

notices, as explained above, Ghanem was clear that he had maile d the not ices himself.8 Demand for possession is here by made. You are hereby given

notice to vacate the dwelling on or before midnight, the 6 th day of

November, 20 22, which is at least thirty days from the delivery of this

notice as noted bel ow. Y o ur failure to move out then will result in

appropriate lega l action by us before the Justice of the Peace. Dela y or postponement of such action does not waive our rights . Eviction will be

filed the morning of November 7, 2022.

A three

- da y noti ce with wording similar to the above notice was sent on

Nove mber 7, 2022, stating t hat Paulin needed to vac ate the premises on or before

midnight on November 10, 2022 , or that an eviction proceeding would be filed the

morning of November 11, 2022.

Paulin identifies no d eficien cy in the notice s, 5 and we see none. We overrule

Paulin ’s fi rst point

.

B. Lack of Stan d ing

In his second point, Pauli n couches the basis of his cl aim that G hanem la cked

standing as follows:

5 Pauli n includes a statement

— that “ [t ] he inescapable conclusion is that a

forcible [-] detai ner p laintiff must make its own d emand for possession [] a nd that the

plaintiff not be allowed to proceed with o ut establishing that it has in fact made p rop er

demand through an authorized person ”— which appears to argue t hat a demand for

possession must have be en made by Ghanem himself

. Th is statement appears to

have been carried over from prior briefs involving corporate appellees. Here, th e

r ecord clearly demonstrates that although Ghanem used Texas Eviction Services to

prepare the notices, he sealed the envelopes a nd mailed the m himself

. Paulin does

not point to any par t of the stat ute that require d Ghanem to prep are the notice s

h imself. We therefor e conclude that it was sufficient under the statute for Ghanem to

hire someone to prepare his pre s uit dema nds, which he then mailed

. Cf. A ustin

, 20 23

WL 8643024

, at *3 n. 5; Rosalez

, 20 21 WL 1918755, at * 2; Enriquez

, 2020 WL 719441,

at

*1 (all holding that it was sufficient under the statute for corporate entities to s end

their pre suit demand th rough an author i zed agent ).9 Ghanem ’ s pleadings, and the p redica t e notice demand ing possession, were made on the

basis of a [ S ] ubstitute [ T ] rustee’s [ D

] eed , the recitations of w hich w ere not to be

treated by the trial court as prima fa cie ev i dence of a conveyanc e per T ex. Prop.

Code § [ ] 51.002(e), because the dee d not o nly does not co ntain an affidavit of a

person averring from her or his own persona l knowle dge th a t there was co m pliance

with T ex. Prop. Code § [ ] 51 .002(b) and (d) in the manne r o f giving of notice.

Therefore, the [ S ] ubstitute [ T ] rustee’s [ D

] eed was not e n titled to the e videntiary

presumption provided by T ex. Prop . Code § [ ] 51.002 (e)

. Co nseque ntly,

Ghanem never demon s trated standing, on the face o f the public record

or to the tria l c o urt, to claim title to the real property in question or that

Ghane m had e vidence of authority to make the statutorily required

pre [] suit demand for possession

. Suc h failure requ i red abatemen t or

dismissal of the case under the standard articu lated by this [c] ou rt in A [ ]

Plus Investm ents [ , Inc. ] v. Rushton

, [No. 02

- 03 -0 0174 -CV

, 2004 WL 868866,

at *2

– 3] (Tex. App.

— Fort Worth [Apr. 22,] 2004 [, no pet. ) (mem. op.)]

. [ Emph asis adde d in italics .]

Paulin ’s argument is a recasti ng of his claim that the S ubs t itute T rustee ’ s Deed

through which Ghanem claims tit le h as a defective affidavit that makes the deed

potentially de fective. We explained in detail in Mart i nez why A Plus Investm e nts does

not app ly and why such a claim does no t create a title iss ue so in ex tri c ably intertw ined

wit h the right to possession that t he trial court lacked jurisdiction to hear the for cible

de t ainer suit

, nor does it demonstrate tha t Ghanem la cked a superior right of

imm ediate pos s ession

. 20 19 WL 59969 84, at *4

– 5, *8 ; see also Rosal ez

, 20 21 WL

1918755, at * 2– 3; Enriquez , 2020 WL 719441

, at * 2; Askew

, 2020 WL 579121, at * 2–

3. 6 Because the issue is not so intertw ined to create a question of tit le, the trial court

had juri s diction over this matter.

6 Wit hi n his sec o nd p oint, Pauli n argue s t hat the forcib le

- detainer petition

should be deemed insufficien t because it was not “sworn to by the plaintiff ” as required by Rule of Civil Pr ocedure 510.3(a)

. Tex. R. Civ. P. 510. 3(a). In this case,10 P aulin also raises a du e- process argument. 7 Paulin contends that he “ was

afforded no due p r ocess in the prior district [- ]court proceeding, [ 8 ] in which he had no

notice and was never made a party ,” and that this should have required abatement or

Mo nica Misczak of Texas Eviction Services signed the petition as Gh anem ’s agent

and “ declare [d] under penalty of perjury, pursuant to the law of the St ate of Texas,

that all information provided is t rue an d correc t. ” See Wreh v. Gianotos

, No. 05

- 19

-

01213

- CV

, 2021 WL 2548708, at *5 (Tex. App.

— Dallas June 22, 2021, pet. de nied )

(mem. op.) (holding th at petition

— which was signed by Texas Eviction , LLC through

Cheryl Guest, as agent

— was suf ficient to meet the requirements of Rule 510.3(a)).

Moreover, even if we were to ass um e that the verif ication was defective, P aulin does

not allege or explain how a defective ver ification was an impediment to the trial

court ’s determination of imm ediate p ossession, and he did not demon strate harm. See

Shutter v. Wells Fargo Bank, N.A.

, 318 S.W.3d 467, 4 69

– 70 (Tex. App.

— Dallas 2010,

pet. di sm’d w.o.j.) (holding that t rial court did not err by denying appellant ’s plea in

abatement based on same ar gument r aised here)

.

P aulin furthe r ar gue s th at the petition “ does not contain sufficient plausible

state ments an d signature of an affi an t before a notary who has taken the oath of the

signer

, in suc h a ma nner that perju ry could be assigned to the a ttachments to t he

[p]etition .” This issue was previously raised by Paulin ’s attorney in an appeal decided

by the Dallas Court of Appeals

. See Lua v. Ca p. Plus Fin.

, LLC

, 646 S.W.3d 622, 630

–

31 (Tex. App. —Dal las 2022, pet. denied ). The co urt in Lua set forth the applicable

law

— Texas Rule of Civi l Procedure 510.3

— and explained that the requireme nt set

out in that rule is n ot jur isdictio nal ; becau se it is not jurisdictional, appellants wer e requir ed to preser ve the issue by raising it in the county court

. See id. at 631. B ecaus e

appe llants did no t point the court to, nor could the court find

, where they had raised

this iss ue in the county court, and becau se the re cord showed that appe llee ’s attor ney

had swor n to the evi ction pleading on beh alf of his clie nt (thus satisfy ing the

requir ements of Rul e 510 .3), the Dallas Court of Appeals overruled the Luas ’

argument. Id. We are in a similar pos ition : we hav e not been pointed to

, nor can we

f ind , where Paulin raised this issue in the trial cou rt. We therefo re overrule this

argument.

7 This is the on e new argument raise d in Paulin ’s brief that did not appear in the

Austin brief

.

8 Pa ulin is referring to the un derlying foreclosure suit, which was filed in the

153 rd District Court in Tarrant Count y.11 dismissal of the forcible

- detainer claim by the trial court. Paulin does not po i nt to,

a nd we can not find, where he raised a due

- process is sue in the trial court. But even

assuming that Paulin preserved this a rgument for rev iew, Gh anem correctly notes in

his brief that w hether JP M organ Chase Bank (the entity that foreclosed o n the

p roperty) serv ed the r equisite presuit notices is a question suited for a wrongful

foreclosure action and cannot be considered in a forcible

- detainer matter. See Smith v.

D eutsche Bank Nat ’ l Tr. Co. , No. 05

- 17

- 01022

- CV, 2019 WL 211174, at * 2 (Tex.

A p p.

— Da ll as Jan. 16, 2019, no pet.) (mem. op.) (stating that “ any ch allenge to the sale

of property under a deed of trust must be brought in a separate suit in which title

issues ca n be determined, not in an action for forcible detaine r ” ).

Accordingly, we ov errul e Paulin ’ s second point.

C. Subst itute Trustee ’ s Dee d Not En titled t o Presumpt i on of Validity

In the third rehash of his same com p laint, Paulin ar gue s that

[n] either Ghanem ’ s pleadings nor hi s offered e xhibits include a complete

purported [S] ubstitu te [T ] r ustee’s [D] eed with an a uthentic ating affidavit

s ufficient for p u rposes of T ex. [ ] Prop. [ ] Code § [ ] 51.002(e) to entitle it to

be tr eat e d as prima facie pro of of the matters recited therein, and no

notice under the app licable rules was given of the f iling o f such in a form

and man ner to w hich [ Paulin ] coul d have ob je cte d throu g h counsel

before the June 28, 2023 trial. No critic al r e citations within th e

Substitute Trustee’s De ed, and hence no statutorily suffi cient notice to

vacate, were properly befo re th e trial court and w ere not entitle d to any

presum ption of re g ul a rity o r validity. Since a proper deed and affidavit

would mea n t h a t the [S] ubstitute [T] rustee’s [D] eed would be entitled to

be treated as prima facie evidence of compliance, a deed inad equat e on its

face, whic h bore no suffi cient T ex. [ ] Prop

. [ ] Code § [ ] 51.0 0 2 ( e)

affidavit [] , should mean that the [S ubstitute T rustee ’ s D ] eed should not

be adequa te evidence on whic h to base a claim of superior right to12 possession, just as it would be ins uf ficie nt to support valid ity of the sale

in title litigation.

To briefly r e iterate why this argument fails, the attack on t h e form of t he

affida vit did not preven t Ghanem from claiming a superior right to pos s ession and

appears unfounded f rom a f actual standpo int. See Martine z

, 2019 WL 5996984, at * 8 ;

s ee al s o Rosalez , 20 21 W L 1918755, at * 3; Askew

, 2020 WL 579121, at * 3. 9 As

explai ned in a Dallas case in which Paulin ’ s counsel raised this same issue challeng ing

the substitute tru stee d ee d’ s a ff idavit because the affiant (like the one here) averred

that the statement s were true “ [t]o the best of my knowledge and belief, ”

In this case, appellee proved its right to possession of the property by

presenting in evidence the substitute trustee ’ s dee d, the deed of trust,

and notices to appellant and the other residents of the property to

vacate. The substitute trustee ’ s deed showed appellee pu rchased the

property in a public auction following appellant ’ s default on the deed of

trust. The deed o f tru st showed appellant was a tenant at sufferance

when she did n ot vacate the property after appellee purchased it. The

notice to vacate informed app ellant of her tenant

- at

- sufferance position

and appellee ’ s requirement that she vacate the prop erty. Th is ev id ence was sufficient to establish appellee ’ s right to immedi ate possession of the

property. Any defects in the foreclosure process or with appell ee ’ s title

9 Pau lin ’s third point again references Ghanem ’s lack of personal knowledge

, stating that “Gha ne m was queried on cross

- examination as to his per sonal knowled ge

of a ny underlying facts related to his Exhibits 1 (home equity lien instrument) or 2

( substit ute trus tee ’s deed) [,] and he articulated none. ” Paulin includes record

references for this statement but does not exp lain why Ghanem w as required to have

perso nal know ledge of these exhibits, which were admitted without objection

. Paulin

even concludes

, “Ghanem need not necessarily have vouched for any particula r

component of the d eed. ” We are thus at a loss as to the relevancy of Ghan em ’s

personal knowledge as it rel ates to these two documents a nd ho ld that any argument

base d on that premise that is waived due to inadequate briefing

. See Tex. R. App. P.

38.1; Fredonia State Bank v. Gen. Am. Life Ins. Co.

, 881 S.W.2d 279, 284 (Tex. 199 4)

(observing that error may be w aived by in adequate briefing)

.13 to the property may not be considered in a forcible [-] detainer action.

Those defects may be pu rs ued i n suits for wrongful foreclosure or to set

aside the substi tute trustee ’ s deed, but they are not relevant in this

forcible [-] detainer action. Accordingly, we conclude that the trial court

did not err in granting judgment for appellee.

Shutter , 318 S .W.3d at 471 ( citations omitted as well as footnote stating that a ppellant ’ s

trial c ounsel had stated “ no objections ” when the substitute tru stee ’s deed was

offered)

. We therefore overrule Paulin ’s third point.

D. Lack of Privity and Challen ge to Gha n em ’s Ri ght to Rely on

Tenancy -at- Suffer ance Term of Deed of Trust

In his fou rth point, Paulin ass erts that t he trial c o urt erred by granting Ghanem

possession be caus e he was not in privi ty of cont ract with Paulin in rel ation to the

Deed of Trust and ther ef ore did not show that he was entitled to rely on the “ tenancy

at s ufferan ce ” lang u age in t hat i n strume nt. W e ha v e rejected this sa me a r gument each

time tha t it has been presented :

[W]e have recently stated that “ [t]he fact that the le nd er in the Deed of

Tr ust does not match the holder identified in th e Substi tute Trustee’s

Dee d .

. . presents a question o f title ” an d “ does not underm ine t he

showing o f superi or right to possession accorded Appellee bec ause it

was the grantee in the Subs ti tute Tr ustee’s Deed. ” Martine z , 2019 WL

5996984, at *8 (citing Deubler v. Bank of N .Y. Mellon , No. 02 -10- 00125

-

CV

, 2011 WL 1331540, at * 2 (Tex. App.

— Fort Wor t h Apr. 7, 2011, no

pet.) (mem. op.) (holding that p arty was not required to present ev id ence

establishin g connection between deed of trust and substitute trustee’s

dee d to establis h superior right to possession ) ).

Rosalez

, 20 21 WL 1 9 18755, at * 4 ( quotin g Askew , 2020 WL 579121, at *3) ; se e also

Austin

, 20 2 3 WL 8643024 , at * 5 ; Martinez

, 2019 W L 59969 84, at * 8.14 Ghanem was not r equired to establish privity of contract with Paulin in r elation

to the Deed of Trust

. S ee Rosalez

, 20 21 WL 1 9 18 7 55, at *4

. It is sufficient that the

Substitute Trus tee ’ s Deed shows tha t Ghanem purchased the subject p ro perty a t a

foreclosure sale and so acquired the ri ght to enforce t he te nancy

- at

- sufferance clause

in the Deed of Trust. See id. ; Enr iquez , 2020 W L 719441, at *3

. 10 We overrule Paulin ’ s

fourth point

.

E. Continued Occu pa n cy

In his fifth point, Paulin cont en ds that the trial court erred by granting

possessio n to Ghanem bec ause he did not present any evidence of Paulin ’s con ti n ue d

occupanc y of the subject property. See Sh iel d

s Ltd. P’ ship v. Bra dberry

, 526 S.W.3d 471,

478 (Tex. 2017 ) (citing r efusal to vacate premises as an element of a forcib le

- detainer

act ion). Because findings of fact and conclusion s of law were not made , the trial

10 Paulin ’s fourt h point also bri efly m enti o ns the following :

[A]bs ent proof of conn ection of the ownershi p of the lien of a deed of

tru st to the trustee granti ng the Substitute Trustee ’s Deed ( which would

require prim a f acie e videntiary statu s for the deed) as well as adm ission of

t he de ed in spite of its i ssuance purs ua nt to a district court ’s order

authorizing sale without any notice being afforded to [Paulin ,] even though the ad litem in such case placed of record h is know le dge of

[Paulin ’ s] claim to the real property, the n Gha nem had no standing to

(a

) issue pre [] sui t de mands for possession, or (b) seek to proceed to

judgment at the trial on June 28, 2023[,] and/or to treat [Paulin ] as a

t ena nt at sufferan ce

.

As Gab er pointe d out , “ an y questions about def e cts in t he foreclosu re process or

‘[w] hether the sale of property unde r a deed of trust is invalid may not be determined

in a forcible [-] detainer [ action] and must be brought in a separate su it, ” which Paulin

did no t do. Se e 202 1 WL 5367851, at *2 ( footno te and c itatio ns omitted)

.15 court ’ s finding o n this el emen t is i m plied if there is sufficient evidenc e to support it.

See id. at 480. He re, Gha nem of fered, and the trial court a dmitted into evidence , a

copy of Ghanem ’ s notice s to va ca t e, w hich w ere addre ssed to “ Paulin Vi cente Jr. and

all occupa nts ” and accompanied b y receipts showing that the no tice s w ere sent by

certified mail (and tra ck ing inf ormation for the three

- day notice) , and Paulin do es n ot

arg ue that he did not recei ve the notic e s to vacate

. Cf. Britt i ngh am v. Fed. Home Loan

Mortg. Corp. , No. 02

- 12

- 00 416

- C V , 2013 WL 4506787, at * 3

– 4 (Tex. App.

— Fort

Worth Aug. 2 2, 2013 , pet. dism ’ d w.o.j.) (mem. op. ) (holding that there was su fficient

refus al

- to

- vacate evidence based i n part on bus i n ess records demon str atin g notice).

After the justice court rend ered j udgme n t gra nti ng Ghanem immedi ate

possession of the propert y

, Paulin fi led a bond to maintain po ssession pending his

appeal to the trial court. See Tex. Prop. Code Ann. § 24.0061. And t he fact that

Paulin appealed

— from th e justice cour t to the tri al c o urt

— a j u dgment d ep riving him

of posses sion is some a c knowle d gem e nt that he w as in possession of the property at

the tim e of trial and had refused to vac at e the property as demanded by Ghanem

. See

Austin , 2023 WL 8643024, at * 6 ; Gaber

, 202 1 WL 5367851, at *5; Ros a lez

, 20 21 WL

1918755, a t * 4 ; Martinez , 2 019 W L 59969 84, at *9; see al s o Askew , 20 2 0 WL 579121, at

*3 n .2. Beca use there is legally sufficient evidence of Paulin ’ s r efusal to vacate the

property, we o verrule his fifth point.16 V. Conclusion

Hav ing over rule d Paulin ’ s five points, we affirm the tri al co urt ’ s j ud gm ent.

/s/ Dabney Bassel

Dabney B assel

Justice

Delivered: May 16, 2024