## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 16 - 00113 - CV

LUIS R. COLON APPELLANT V. WILMINGTON SAVINGS F UND SOCIETY, FSB, D/B/A CHRISTIANA TRUST, NOT INDIVIDUA LLY BUT AS TRUSTEE FOR PRETI UM MORTGAGE ACQUISITION TRUST APPELLEE

---------- FROM COUNTY COURT AT LAW NO. 1 OF TARRAN T COUNTY

TRIAL COURT NO. 2015

- 005687

- 1

---------- 

### MEMORANDUM OPINION 1

---------- I. Introduction

1 See Tex. R. App. P. 47.4.2

In four points in this forcible detainer appeal , Appellant Luis R. Colon appeals the trial court’s judgment of possession for Appellee Wilmington Savings Fund Society, FSB, D/B/A Christiana Trust, Not Individually but as Trustee for Pretium Mortgage Acquisition Trust (Wi lmington). We affirm.

II. Factual and Procedural Background Colon obtained a mortgage, secured by a deed of trust, on the property at issue , 12634 Bay Avenue, Euless, Texas , 76040. After Colon defaulted on the mortgage, Wilmington purchased the propert y at a nonjudicial foreclosure sale

. Wilmington issued n otices to vacate and then filed a petition for forcible detainer in the justice court after Colon failed to vacate the premises

. 2 In response, Colon filed a plea in abatement and an original answer subject to that plea. In his plea in abatement, Colon complained that Wilmington’s petition did not comply with rule of civil procedure 510.3(a) , that Wilmington could not prove that it was properly in the property’s chain of title , that Wilmington was no t entitled to treat him as a tenant at sufferance , and that there was a title dispute that deprived the justice court of jurisdiction. At the trial de novo in the county court at law, Wilmington offered, and the trial court admitted into evidence, a certi fied copy of the deed of trust signed by

2 Wilmington’s original petition for forcible detainer is not in the record before this court, but it filed an amended petition for forcible de tainer that was verified by its attorney, and this w as the live pleading at trial.3

Colon, 3 a certified copy of the substitute trustee’s deed reflecting the sa l e of the property to Wilmington , and a business records affidavit attached to t he notices
to vacate sent to each borrower by both regular a nd certified mail and to all occupants by first class mail. The trial court awarded possession of the property to Wilmington

. After a hearing, the trial court denied Colon’s motion for new trial, and this appeal followed

. III. Analysis In his first po int, Colon contends that Wilmington’s pleading w as not a valid pleading on which judgment could have been granted because it was not “sworn to by the plaintiff” as required by rule of civil procedure 510.3(a). In making this argument, Colon urges this cou rt to revisit our decision in Norvelle v. PNC Mortgage , 472 S.W.3d 444 (Tex. App.

— Fort Worth 2015, no pet.). In Norvelle , we held, [T] he petition filed in the justice court contained a ve rification sworn to by the Bank’ s counsel, stating her authority to make the affidavit and swearing that the facts contained in the pleading were both within her personal knowledge and true and correct. As she acted as the Bank’ s corporeal agent for purposes of instituting the action, this was s ufficient to meet rule 510. 3(a)’ s requirements.

3 The deed of trust specifically provides that if the property is sold under the foreclosure paragraph, “Borrower or any person holding possession of the Property through B orrower 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 remove d by writ of possession.”4

Id. at 449

. Wilmington’s amended petition for forcible detainer was signed by its counsel and contained a verification by her, stating her authority to make the petition and verification and swearing that the facts contained within the amended petition for forcible detainer were within her personal knowledge and true and correct. D eclining Colon’s invitation to reconsider Norvelle , we overrule his first point. In his remaining points, Colon argues that Wilmington’s pleading was inv alid because Wilmington lacked standing to prosecute its claim , that Wilmington was not entitled to rely on the deed of trust’s tenancy
- at
- sufferance language because it was not in privity of contract with Colon, and that Wilmington’s business records shou ld not have been considered

. Colon’s standing argument goes to the validity of title, not of the eviction, which was the only issue before the trial court and now before us as Colon failed to provide any evidence in the trial court to support the existen ce of a title dispute sufficient to deprive the trial court of jurisdiction. See Deubler v. Bank of New York Mellon , No. 02

- 16

- 00390

- CV, 2017 WL 2290193, at *2 (Tex. App.

— Fort Worth May 25, 2017, no pet. h.) (mem. op.); A Plus Invs., Inc. v. Rushton , No. 0 2

- 03

- 00 174

- CV, 2 004 WL 868866, at *2 (Tex. App.

— Fort Worth Apr. 22, 2004, no pet.) (mem. op.) (“The justice courts and the county courts at law are only deprived of jurisdiction to adjudicate a forcible detainer action if the question of title is so inter twined with the issue of possession that possession may not be5

adjudicated without first determining title.” (citing Mitchell v. Armstrong Capital Corp. , 911 S.W.2d 169, 171 (Tex. App.

— Houston [1st Dist.] 1995, writ denied))). Furthermore, as we stated i n Deubler , “ ‘ [t]o prevail in a forcible detainer action, a plaintiff is not required to prove title, but is only required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession. ’ ” 2017 WL 2290193, at *2 (quoting R ice v. Pinney , 51 S.W.3d 705, 709 (Tex. App.

— Dallas 2001, no pet.) ) ; see Tex. R. Civ. P. 510.3(e) (stating that in a forcible

- detainer action, “[t]he court must adjudicate the right to actual possession and not title”); Kaldis v. Aurora Loan Servs. , No. 0 1

- 09

- 00270

- CV, 20 10 WL 2545614, at *3 (Tex. App.

— Houston [1st Dist.] June 24, 2010, pet. dism’ d w.o.j.) (mem. op.) (holding that plaintiff in forcible

- detainer suit who purchased property in a nonjudicial foreclosure sale need not prove a clear chain of ti tle to it to prove its superior right to possession in relation to the defendant). Here, Wilmington presented as evidence (1) a certified copy of the August 25, 2008 deed of trust signed by Colon that included a provision that upon a nonjudicial foreclos ure sale, Colon would become a tenant at sufferance if he did not surrender possession of the property to the buyer; (2) a substitute trustee’s deed reciting that the property secured by the deed of trust was sold to Wilmington at a nonjudicial foreclosure sale and conveying the property to Wilmington; and (3) evidence of the notice s to vacate sent to Colon. Colon presented no evidence. Accordingly, the evidence was sufficient to support6

Wilmington’s standing and a judgment in its favor on the issue of po ssession. We overrule Colon’s second point. As to Colon’s tenancy

- at
- sufferance argument, and specifically with regard
to his privity argument , we have previously stated, [N] o privity was required. See ICM Mortg. Corp. v. Jacob , 902 S.W.2d 527, 530 (Tex . App.

— El Paso 1994, writ denied) (explaining that tenant at sufferance is “not in privity with the owner” of the property). Gaydos became a tenant at sufferance when he refused to surrender possession of the property to Fannie Mae, who as the purchaser of the property, had a superior right to possession. See id. (“A tenant at sufferance is one who wrongfully continues in possession of property after his right to possession has ceased and does not assert a claim to superior title.”); see also Jimenez v. Fe d. Nat’l Mortg. Ass’

n , No. 02

- 15

- 00229

- CV, 2016 WL 3661884, at *2

– 3 (Tex. App.

— Fort Worth July 7, 2016, no pet.) (mem. op.) (rejecting similar argument). Gaydos v. Fed. Nat’l Mortgage Ass’n , No. 02

- 16

- 00003

- CV, 2016 WL 7405809, at *1 n.2 (Tex. App.

— Fort W orth Dec. 22, 2016, no pet.) (mem. op.) ; see also Tex. Prop. Code Ann. § 24.002(a)(2) (West 2014) (providing that a person who refuses to surrender possession of real property on demand commits a forcible detainer if he “is a tenant at will or by sufferanc e, including an occupant at the time of foreclosure of a lien superior to the tenant’s lease”); Dyhre v. Hinman , No. 05

- 16

- 00511

- CV, 2017 WL 1075614, at *3 (Tex. App.

— Dallas Mar. 22, 2017, pet. filed) (mem. op.) (holding that the transfer from the deed of trust trustee to the new buyer, which t ransferred all deed of trus t rights, including the tenancy

- at
sufferance rights, to the new buyer, “ was sufficient to establish the Owners’ landlord

- tenant relationship with Occupants and Owners’ correlative rights to7

enforce the deed of trust’s tenancy

- at
- sufferance clause against Occupants” ); Lenz v. Bank of Am., N.A. , 510 S.W.3d 667, 671 (Tex. App.

— San Antonio 2016, pet. denied) (stating that the Lenzes’ continued possession of the property following the Bank’ s noti ce to vacate created a tenancy at sufferance and that their “ status as tenants at sufferance under the deed ’ s Foreclosure Procedure section did not require that the Bank be a beneficiary of the original Deed of Trust in favor of MERS or the owner of the li en when it was foreclosed ”). Accordingly, we overrule Colon’s third point. Finally, at trial Colon did not object to the admission of the business records on any ground. See Tex. R. App. P. 33.1 (a); see also Tex. R. Evid. 103(a)(1). W e therefore overrul e Colon’ s final point because he has failed to preserve it for our review. See Bushell v. Dean , 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). IV. Conclusion Having overruled all of Colon’s points, we affirm the trial court’s judgment.

/s/ Bonnie Sudderth BONNIE SUDDER TH JUSTICE PANEL: SUDDERTH, KERR, and PITTMAN , JJ. DELIVERED: July 27, 2017