COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00211-CV

AMY MURRY APPELLANT

V.

BANK OF AMERICA, N.A. APPELLEE

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FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

TRIAL COURT NO. 2013-002087-1

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MEMORANDUM OPINION1

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Appellant Amy Murry, pro se, brings six issues challenging the county

court’s judgment in favor of Appellee Bank of America, N.A., on its forcible 

detainer action.

2

 Murry’s issues are based on a “notice of rescission” that she 

 1

See Tex. R. App. P. 47.4.

2Effective August 31, 2013, the rules of civil procedure applicable to 

forcible detainer actions in justice courts were repealed and new rules for suits in 

justice courts were added. Because Murry had filed her notice of appeal before 
2

filed in the Tarrant County property records on the same day as the foreclosure 

sale of her property in Arlington, Texas. Because we hold that Murry’s 

arguments based on the notice of rescission are not properly raised in a forcible 

detainer action, we affirm.

In 2003, Murry executed a deed of trust, with Mortgage Electronic 

Registration Systems, Inc., as nominee for the lender, named as beneficiary, and 

a different entity named as the lender. The deed of trust provided that Murry 

would be a tenant at sufferance if, upon default, the property was sold at a 

foreclosure sale in accordance with the deed of trust and Murry did not surrender 

possession to the purchaser.

On February 5, 2013, Bank of America purchased the property at a 

foreclosure sale. On that same date, Murry filed a document in the county 

property records. By this document, titled a “notice of rescission,” Murry 

attempted to rescind the deed of trust.

Bank of America sent Murry notice to vacate, and when she did not 

surrender possession, it filed a forcible detainer action in the justice of the peace 

court. After the justice court granted possession to Bank of America, Murry

appealed to the county court. The county court signed a judgment of possession 

in favor of Bank of America, and Murry filed this appeal.

 

the new rules became effective, the old rules apply here. See Supreme Court of 

Tex., Final Approval of Rules for Justice Court Cases, Docket No. 13-9049 (Apr. 

15, 2013).
3

We begin with Murry’s fifth issue, in which she asks whether “the trial court 

lack[ed] subject matter jurisdiction after a clear title dispute was presented to the 

court.” A person commits forcible detainer if the person “is a tenant at will or by 

sufferance” and the person refuses to surrender possession of the property on 

demand.

3

 A plaintiff in a forcible detainer action may show a superior right to 

possession by establishing that it purchased the property at a foreclosure sale 

conducted in accordance with a deed of trust and that the deed of trust creates a 

tenancy at sufferance upon foreclosure.4

 The plaintiff in that case must show 

that “(1) the plaintiff owns the property, (2) the defendant became a tenant at 

sufferance when the property was purchased under the deed of trust, (3) the 

plaintiff gave proper notice to defendant to vacate the premises, and (4) the 

defendant refused to vacate the premises.”

5

Justice courts have jurisdiction over forcible detainer actions.6 By statute, 

justice courts do not have jurisdiction over title disputes, and by rule, a justice 

 3

Tex. Prop. Code Ann. § 24.002 (West 2000).

4

See Aguilar v. Weber, 72 S.W.3d 729, 733 (Tex. App.—Waco 2002, no 

pet.) (observing that courts have held that a forcible detainer action is dependent 

on proof of a landlord-tenant relationship).

5

Brittingham v. Fed. Home Loan Mortg. Corp., No. 02-12-00416-CV, 2013 

WL 4506787, at *1 (Tex. App.—Fort Worth Aug. 22, 2013, pet. dism’d w.o.j.) 

(mem. op.) (applying property code section 24.002).

6

Tex. Gov’t Code Ann. § 27.031(a)(2) (West Supp. 2013); Tex. Prop. Code 

Ann. § 24.004 (West Supp. 2013).
4

court may not adjudicate the question of title in a forcible detainer action. 7

Accordingly, a justice court has no jurisdiction over a forcible detainer action if 

the adjudication of the action requires resolution of a title dispute.8

 And because 

a county court conducting a trial de novo in an appeal from a justice court is 

limited to the jurisdiction of the justice court, a county court hearing an appeal in 

a forcible detainer action also has no jurisdiction over the action if it requires 

resolution of a title dispute.9

But the mere existence of a title dispute does not deprive the court of 

jurisdiction.

10 It is only when the right to immediate possession necessarily

 7

Tex. Gov’t Code Ann. § 27.031(b); Tex. R. Civ. P. 746 (West 2013, 

repealed 2013); Rice v. Pinney, 51 S.W.3d 705, 708–09 (Tex. App.—Dallas 2001, 

no pet.).

8

Tex. Gov’t Code Ann. § 27.031(b); Rice, 51 S.W.3d at 708.

9

Tex. R. Civ. P. 749 (West 2013, repealed 2013) (stating that an appeal in 

a forcible detainer action is to the county court); Tex. R. Civ. P. 751 (West 2013, 

repealed 2013) (providing that the appeal must be tried de novo); Rice, 51 

S.W.3d at 708–09 (stating that a county court hearing an appeal in a forcible 

detainer action has no jurisdiction if the justice court had no jurisdiction).

10Montgomery v. Aurora Loan Servs., LLC, 375 S.W.3d 617, 621 (Tex. 

App.—Dallas 2012, pet. denied) (“[W]hether Aurora lacked authority to sell the 

property at foreclosure or whether the substitute trustee’s deed is valid may not 

be determined in a forcible detainer lawsuit.”); Schlichting v. Lehman Bros. Bank 

FSB, 346 S.W.3d 196, 199 (Tex. App.—Dallas 2011, pet. dism’d) (“Any defects 

in the foreclosure process or with the purchaser’s title to the property may not be 

considered in a forcible detainer action.”); Pledged Prop. II, LLC v. Redden, No. 

12-09-00191-CV, 2010 WL 3341524, at *3 (Tex. App.—Tyler Aug. 25, 2010, no 

pet.) (mem. op.) (“[W]hether Daniel was a proper trustee or whether the 

underlying foreclosure sale was void was outside the scope of the forcible 

detainer action.”).
5

requires resolution of the title dispute, that is, when the court’s decision of which 

party has a superior right of possession must rest on a determination of title, that 

the justice court may not adjudicate the forcible detainer action.

11

Here, Bank of America produced ownership of the property by way of the 

foreclosure deed, which showed that the property had been sold at a foreclosure 

sale and that Bank of America had purchased the property at that sale. Bank of 

America showed a landlord-tenant relationship by way of the deed of trust, which 

contained a provision creating a tenancy at sufferance if Murry refused to vacate 

the premises if the property was sold at a foreclosure sale. Murry acknowledged 

to the county court that she received notice to vacate and that she was still in 

possession of the property at the time of the hearing.

Because the deed of trust gave rise to a landlord-tenant relationship upon 

foreclosure, the county court did not have to determine which party was the true 

owner of the property to resolve the question of possession, and therefore the 

court did not have to resolve a title dispute in order to determine who had the 

right to possession.

12 Because a foreclosure sale occurred (whether rightfully or 

 11Rice, 51 S.W.3d at 709; see, e.g., Mortgage Elec. Registration Sys. v. 

Young, No. 02-08-00088-CV, 2009 WL 1564994, at *5 (Tex. App.—Fort Worth 

June 4, 2009, no pet.) (mem. op.) (finding a title dispute when the evidence 

showed that the plaintiff in the forcible detainer action had purchased the 

property but then conveyed it to another party).

12Cf., e.g., Saihat Corp. v. Miller, No. 01-11-00119-CV, 2013 WL 4634814, 

at *7 (Tex. App.—Houston [1st Dist.] Aug. 27, 2013, no pet.) (mem. op.) 

(considering a forcible detainer claim not involving a foreclosure sale under a 

deed of trust in which the property had been sold at a constable’s sale to satisfy 
6

wrongfully), Murry became a tenant at sufferance. Because Bank of America 

bought the property at the sale, it became the landlord and entitled to possession.

Bank of America therefore met its burden in the forcible detainer action.

Murry challenged whether the deed of trust was still effective in the face of 

her notice of rescission, but she acknowledged the creation of the deed of trust.

13 

That deed of trust, when executed, contained a provision creating a tenancy at 

sufferance upon foreclosure. Accordingly, even if Murry’s notice of rescission 

could unilaterally revoke the deed of trust, it would give rise to a claim for 

wrongful foreclosure, but it did not provide a defense to Bank of America’s 

forcible detainer action. Accordingly, we hold that the notice of rescission, even if 

valid, did not deprive the court of jurisdiction. We overrule Murry’s fifth issue.

In her first issue, Murry asks whether the county court “abuse[d] its 

discretion by failing to impanel the awaiting jury, failing to allow the jury trial to 

proceed, and deciding the case from the bench.” The role of the jury is to find 

 

a judgment against the defendant and the defendant defended on the ground 

that the property foreclosed upon was his homestead, and dismissing the claim 

for want of jurisdiction because “neither the justice court nor the county court at 

law could have determined which party had the superior right of possession 

without first determining title (i.e., whether the constable’s sale was void because 

the property was Edwards’ homestead)”); Aguilar, 72 S.W.3d at 733 (“One 

indication that a justice court (and county court on appeal) is called on to 

adjudicate title to real estate in a forcible detainer case—and, thus, exceed its 

jurisdiction—is when a landlord tenant relationship is lacking.”).

13Cf. Johnson v. Coppel, No. 01-09-00392-CV, 2012 WL 344757, at *7

(Tex. App.—Houston [1st Dist.] Feb. 2, 2012, no pet.) (mem. op.) (reviewing 

summary judgment in a case involving an allegation that the deed of trust was a 

forgery).
7

facts.14 At the start of the proceedings, the county court ruled on the admissibility 

of the parties’ evidence, including the deed of trust, the foreclosure deed, and 

Murry’s notice of rescission. When it came time to discuss the jury charge, the 

county court stated that it did not believe there was a question for the jury. 

Because Murry wished to proceed with the jury trial, the court asked Murry what 

fact question she believed existed to submit to the jury. The only question she 

suggested related to whether Bank of America had the authority to foreclose. 

Other than that question, Murry stated that she “wasn’t prepared to present a 

question of fact.”

On appeal, Murry argues that she was denied the opportunity for a jury trial 

due to the county court’s failure to admit the notice of rescission. Murry states 

that the jury should have been allowed to determine who had the right to 

immediate possession and that the jury should have been allowed “to determine 

the fact that the Notice of Rescission was duly and properly filed prior to the 

foreclosure sale.” She argues that the county court’s refusal to admit the notice 

of rescission led to the court’s conclusion that there was no fact issue for the jury.

The notice of rescission related to whether the foreclosure was valid or 

wrongful. It did not create a fact question about whether the property had been 

 14Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 535 (Tex.

1995) (Spector, J., concurring and dissenting) (“The right of trial by jury dictates 

that a jury must be allowed to decide all matters of fact.”); Halsell v. Dehoyos, 

810 S.W.2d 371, 372 (Tex. 1991) (stating that a refusal to grant a jury trial is 

harmless error if the record shows that no material issues of fact exist and an 

instructed verdict would have been justified).
8

sold at a foreclosure sale, whether the foreclosure had been conducted under a 

deed of trust with a tenancy at sufferance provision, whether Bank of America 

had purchased the property at the sale, or whether Bank of America had sent 

notice to Murry to vacate. Accordingly, the notice of rescission did not raise a 

fact issue relevant to Bank of America’s right of possession. Murry told the 

county court that she had no other fact issue to present, and, accordingly, it was 

not reversible error for the county court to determine that there was no question 

of fact for the jury. We overrule Murry’s first issue.

In her second issue, Murry asks whether the county court “abuse[d] its 

discretion by failing to take judicial notice of the Tarrant County Deed Records 

and give all properly filed and certified copies of documents the same weight.” 

Murry complains that the county court failed to take judicial notice of the notice of 

rescission. But because the notice was not relevant to the forcible detainer 

action, if the county court abused its discretion by failing to take judicial notice of 

the document, Murry was not harmed.15

Murry contends that because her notice of rescission made the deed of 

trust void, it did not create a landlord-tenant relationship when the property was 

sold at the foreclosure sale. But that argument raises an issue not properly 

raised in a forcible detainer action. Murry may raise this argument in a different 

proceeding, such as a suit for wrongful foreclosure. But as stated above, it is not 

 15See Tex. R. App. P. 44.1.
9

relevant to whether the property was sold at a foreclosure sale under a deed of 

trust with a tenancy at sufferance provision and bought at the sale by Bank of 

America. Accordingly, we overrule Murry’s second issue.

Murry asks in her third issue whether the county court “abuse[d] its 

discretion when denying the admissibility of Murry’s certified copy of the Notice of 

Rescission that was filed first in time, after admitting [Bank of America]’s certified 

copy of the Substitute Trustee’s Deed when both documents are properly filed 

and recorded official records of Tarrant County.” We have already held that the 

notice of rescission was not relevant to this forcible detainer action, and we 

therefore hold that the county court did not abuse its discretion by failing to admit 

the document.16 We overrule Murry’s third issue.

Murry asks in her fourth issue whether the county court “abuse[d] its 

discretion by sustaining objections made by [Bank of America] under [Murry]’s 

Offer of Proof and failing to allow [Murry] to tender exhibits to the court reporter 

for the record after the Offer of Proof was made.” In the argument section of her 

brief, she reframes the issue as a failure by the county court to allow her to 

tender exhibits. Murry’s brief argument under this issue challenges the county

court’s failure to allow her to make an offer of proof. Her argument is as follows:

The trial court denied the admission of Murry’s exhibits. (RR, 

37, L. 8). Murry then made an Offer of Proof for the appellate 

record. (RR, 37, L. 9). [Bank of America], through counsel, objected 

to the Offer of Proof (RR, 37, L. 12) stating:

 16See Tex. R. Evid. 402 (“Evidence which is not relevant is inadmissible.”).
10

12 [Counsel]: Your Honor, I would object

13 because that’s not what we’re here to do. The 

offer of

14 proof has nothing to do with a possession case.

Texas Rule of Evidence 103 provides that a party may make 

an Offer of Proof for the appellate record, without objection by the 

opposing party, strictly for the appellate record. The court must 

allow the Offer to be made, yet the trial court in this case agreed with 

counsel for Appellee that “it has nothing to do with the matter before 

the court”. (RR, 37, L. 22).

Accordingly, the Court should find that Murry properly 

preserved her evidence under the Offer of Proof, and find reversible 

error.

Construing this argument liberally, we believe Murry challenges both the 

denial of her offer of proof and the exclusion of the evidence. Murry does not 

specify what evidence she believes the county court should have admitted into 

evidence. Although the county court did not allow Murry to submit excluded 

documents as part of her offer of proof, with respect to her notice of rescission, 

she described what the notice stated, and the county court noted that she had 

already described the document when the court denied her request to include it 

in the record. She described it as not terminating any debt and terminating only 

the power of sale clause in the deed of trust, stating that “[i]t has nothing to do 

with the note.” The county court noted that the notice was dated February 4, 

2013 and filed February 5, 2013. When Murry argued that she was allowed 

under the rules to make an offer of proof, the trial court stated, “You just did.” 

Thus, the county court did allow her to make an offer of proof regarding the 
11

notice of rescission. As for whether the county court should have admitted that 

document into evidence, we have already addressed Murry’s argument. We 

overrule Murry’s fourth issue.

In her sixth and final issue, Murry asks whether the county court “abuse[d] 

its discretion by failing to grant Murry’s special exceptions and Motion to Strike 

the Business Records Affidavit filed by [Bank of America] and Motion to Dismiss.” 

Murry complains about the business records affidavit of Sharon Vaughan. She 

complains that Vaughan is not an employee of Bank of America or its law firm 

and does not show how the business records Vaughan references in her affidavit 

came into her possession. Murry also argues that she attempted to introduce 

into evidence a copy of a consent order between Bank of America and the 

federal government finding that Bank of America had

filed or caused to be filed in state and federal courts affidavits 

executed by its employees or employees of third-party service 

providers making various assertions . . . in which the affiant 

represented that the assertions in the affidavit were made based on 

personal knowledge or based on a review by the affiant of the 

relevant books and records, when, in many cases, they were not 

based on such personal knowledge or review of the relevant books 

and records.

Murry argues that this consent order is evidence indicating a lack of 

trustworthiness of Vaughan’s affidavit.

In Vaughan’s affidavit, she stated that she was an employee of National 

Default Exchange L.P., “an affiliated service provider” for Barrett Daffin Frappier 

Turner & Engel, LLP; that she is the custodian of records for that law firm; and 
12

that Murry had been given notice to vacate. Murry acknowledged that she 

received notice to vacate, and she does not challenge the county court’s finding

that Bank of America sent her notice to vacate. Thus, if the county court abused 

its discretion by admitting the affidavit, Murry was not harmed by the admission.17 

We overrule Murry’s sixth issue.

Having overruled all of Murry’s issues, we affirm the county court’s 

judgment.

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DELIVERED: July 17, 2014

 17See Tex. R. App. P. 44.1.