NO CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS. ESTER WILLIAMS AND/OR ALL OCCUPANTS, Appellants

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1 ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 11 August 14 P9:04 Lisa Matz CLERK NO CV IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS ESTER WILLIAMS AND/OR ALL OCCUPANTS, Appellants V. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR LONG BEACH MORTGAGE LOAN TRUST , Appellee On Appeal from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC E BRIEF OF APPELLANTS Stephen W. Tiemann Attorney and Counselor at Law State Bar No E. Lamar Blvd. Suite 600 Arlington, Texas Tel: (817) Fax: (817) steve@swtlaw.net Attorney for Ester Williams and/or All Occupants, Appellants

2 IDENTITY OF PARTIES AND COUNSEL The following is a complete list of all parties to the trial court s final judgment, as well as the names and addresses of all trial and appellate counsel. PARTIES COUNSEL Plaintiff / Appellee: Deutsche Bank National L. Chance Oliver Trust Company, As Trustee State Bar No For Long Beach Mortgage Attorney and Counselor at Law Loan Trust Berkshire Lane Suite 410 Dallas, Texas Tel: (940) Fax: (214) Defendants / Appellants: Ester Williams and/or All Occupants Trial Counsel: None / Pro Se Appellate Counsel: Stephen W. Tiemann State Bar No Attorney and Counselor at Law 2000 E. Lamar Blvd. Suite 600 Arlington, Texas Tel: (817) Fax: (817)

3 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL...2 INDEX OF AUTHORITIES 4 STATEMENT OF THE CASE 5 ISSUE PRESENTED...6 The trial court erred in finding that Defendant / Appellant is a tenant at sufferance because there was no evidence of a landlord-tenant relationship between Plaintiff / Appellee and Defendant / Appellant. STATEMENT OF FACTS..7 SUMMARY OF THE ARGUMENT..9 ARGUMENT AND AUTHORITIES 10 PRAYER 13 CERTIFICATE OF SERVICE...14 APPENDIX 15 3

4 INDEX OF AUTHORITIES CASES Page Academy Corp. v. Sunset N.O.P. Inc. 10, S.W.2d 833 (Tex.App. Houston [14 Dist.] 1993) Rice v. Pinney, 10, S.W.3d 705 (Tex.App. Dallas 2001) Ebert v. Day, 11, 12 No CV (TXCA3) (see Appendix A-2) TEXAS CONSTITUTION, STATUTES, AND RULES Tex. Prop. Code Ann. Sec , 12 4

5 STATEMENT OF THE CASE This is a post-foreclosure action for forcible detainer of premises being used for residential purposes only. (C.R. 8) (R.R. 5) A non-jury trial was held on March 22, (C.R. 7, 29) (R.R. 1) On that day, the trial court rendered a judgment that Plaintiff / Appellee, its successors and assigns, is entitled to possession. (C.R. 29) In its Judgment, the trial court found that Defendant / Appellant is a tenant at sufferance pursuant to the foreclosure held on October 6, (C.R. 29) On March 28, 2011, Defendants filed their Notice of Appeal. (C.R. 4) The Clerk s Record was filed in this Court on June 5, The Reporter s Record was filed in this Court on July 11,

6 ISSUE PRESENTED The trial court erred in finding that Defendant / Appellant is a tenant at sufferance because there was no evidence of a landlord-tenant relationship between Plaintiff / Appellee and Defendant / Appellant. (C.R. 29) 6

7 STATEMENT OF FACTS Defendants / Appellants Ester Williams, et al (referred to herein as Williams ) lives in the residential real property and improvements commonly known as 245 Creekwood Drive, Lancaster, Texas75146 (the Property ). (C.R. 8) On October 6, 2009, Plaintiff / Appellee Deutsche Bank National Trust Company, As Trustee for Long Beach Mortgage Loan Trust , (referred to herein as Deutsche Bank ), purportedly acquired the Property by a Substitute Trustee s Deed at the conclusion of a Substitute Trustee s sale (C.R. 8, C.R ) On January 13, 2011, Deutsche Bank filed its Original Petition for Forcible Detainer in the Justice Court of Dallas County, Precinct 1. (C.R. 8) On February 1, 2011, a non-jury trial on Deutsche Bank s Original Petition for Forcible Detainer was held in the Justice Court, and the Justice Court entered its Judgment awarding possession of the Property to Deutsche Bank. (C.R. 24) On February 7, 2011, Williams filed her Affidavit of Inability to Pay Costs and Appeal Bond to perfect her appeal of the Justice Court s Judgment. (C.R ) On March 22, 2011, a de novo non-jury trial of Deutsche Bank s Original Petition for Forcible Detainer was held in the County Court at Law No. 5 of Dallas County. (R.R. 1) 7

8 At the trial, Deutsche Bank offered into evidence only two items: 1) a Substitute Trustee s Deed (P.X. 1) (R.R. 5 6) 2) a Notice to Vacate (P.X. 2) (R.R. 6 8) Deutsche Bank s exhibits were admitted into evidence. (R.R. 6, R.R. 8) On March 22, 2011, the County Court at Law No. 5 entered its Judgment awarding possession of the Property to Deutsche Bank. (C.R. 29) In its Judgment, the County Court at Law No. 5 found that Defendant / Appellant is a tenant at sufferance pursuant to the foreclosure held on October 6, (C.R. 29) 8

9 SUMMARY OF THE ARGUMENT In order to commit a forcible detainer, a landlord-tenant relationship must exist between the parties disputing who has the superior right to possession of the property. The proof of a landlord-tenant relationship is required to show who has the greater right of possession. In this post-foreclosure action for forcible detainer of premises being used for residential purposes only, Plaintiff / Appellee Deutsche Bank presented no evidence at trial that a landlord-tenant relationship, including a landlord and tenant-at-sufferance relationship, existed between Deutsche Bank and Defendants / Appellants. Therefore, the trial court erred in finding that Defendant / Appellant is a tenant at sufferance. 9

10 ARGUMENT AND AUTHORITIES Tex. Prop. Code Ann. Sec (a) states: (a) A person who refuses to surrender possession of real property on demand commits a forcible detainer if the person: (1) is a tenant or a subtenant willfully and without force holding over after the termination of the tenant s right of possession; (2) is a tenant at will or by sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant s lease; or (3) is a tenant of a person who acquired possession by forcible entry. In this post-foreclosure action for forcible detainer of premises being used by Defendant / Appellant Williams for residential purposes only, Plaintiff / Appellee Deutsche Bank had the burden to prove that a landlord-tenant relationship existed between the parties. This relationship is one of the elements required by Tex. Prop. Code Ann. Sec to support a forcible detainer action. The proof of a landlord-tenant relationship is required to show who has the greater right of possession. Academy Corp. v. Sunset N.O.P. Inc., 853 S.W.2d 833 (Tex.App. Houston [14 Dist.] 1993). In 2001, this Court, in the case of Rice v. Pinney, 51 S.W.3d 705 (Tex.App. Dallas 2001), recognized that in a post-foreclosure action for forcible detainer of premises being used for residential purposes only, a deed of trust securing a note could provide that if the premises were sold under the deed of trust, the grantor of deed of trust shall immediately surrender possession to the purchaser. Furthermore, if the grantor failed to do so, the grantor shall become a tenant at 10

11 sufferance of the purchaser, subject to an action for forcible detainer. Rice v. Pinney, at 707. Later in the opinion, this Court surveyed the previous case law establishing that a provision in a deed of trust that made a defaulted grantor a tenant at sufferance was valid and able to support a forcible detainer action. Rice v. Pinney, at It is very important to note the evidence that was before the trial court in Rice v. Pinney: Here, the county court at law had before it a March 1998 deed of trust wherein the Rices, as grantors, conveyed the property to a trustee for the benefit of NMC. The deed of trust stated that upon a sale pursuant to the deed of trust, the Rices would become tenants at sufferance and subject to a forcible detainer action if they refused to vacate the property after request. Also before the court was a September 1999 substitute trustee s foreclosure sale deed and related documents establishing the default on the note, a notice of eviction, the foreclosure pursuant to the deed of trust, and the sale of the property to Pinney. Based on this evidence, The county court merely determined who was entitled to immediate possession. Rice v. Pinney, at 711. In 2004, the Court of Appeals of Texas, Third District, Austin, in the case of Ebert v. Day, No CV (TXCA3) (see Appendix A-2), carefully reviewed a deed of trust executed by James Marlin Ebert and Priscilla Ebert and 11

12 found that it provided that the Eberts would be tenants at sufferance of the purchaser after a sale under the deed of trust. The Court followed Tex. Prop. Code Ann. Sec and Academy Corp. v. Sunset N.O.P. Inc., in ruling that Mr. Ebert became a tenant-at-sufferance according to the Deed of Trust that he executed. The Court based its finding that a landlord and tenant-at-sufferance relationship existed on the specific provisions of the Deed of Trust. In this post-foreclosure action for forcible detainer of premises being used by Defendant / Appellant Williams for residential purposes only, Plaintiff / Appellee Deutsche Bank offered into evidence only two items: 1) a Substitute Trustee s Deed (P.X. 1) (R.R. 5 6) 2) a Notice to Vacate (P.X. 2) (R.R. 6 8) These exhibits were admitted into evidence. (R.R. 6, R.R. 8) Plaintiff / Appellee Deutsche Bank did not offer into evidence a deed of trust executed by Defendant / Appellant Williams, or any other testimony or document, to show that a landlord and tenant-at-sufferance relationship existed between the parties. Plaintiff / Appellee Deutsche Bank failed to meet its burden of proof that a landlord-tenant relationship existed between the parties. Therefore, the trial court erred in finding that Defendant / Appellant is a tenant at sufferance. 12

13 PRAYER For these reasons, Ester Williams And/Or All Occupants, Appellants, request that this Court hold that the trial court erred in finding that Defendant / Appellant is a tenant at sufferance, reverse the Judgment of the trial court, and grant Appellants such other and further relief that may be awarded at law or in equity. Respectfully submitted, /s/ Stephen W. Tiemann Stephen W. Tiemann Attorney and Counselor at Law State Bar No E. Lamar Blvd. Suite 600 Arlington, Texas Tel: (817) Fax: (817) steve@swtlaw.net Attorney for Appellants 13

14 CERTIFICATE OF SERVICE This certifies that the undersigned served this Brief of Appellants on Deutsche Bank National Trust Company, As Trustee for Long Beach Mortgage Loan Trust , Appellee, by sending it to the counsel for Appellee, L. Chance Oliver, at 5950 Berkshire Lane, Suite 410, Dallas, Texas 75225, by first class mail on August 15, /s/ Stephen W. Tiemann Stephen W. Tiemann Attorney for Appellants 14

15 APPENDIX A 1 Judgment of the County Court at Law No. 5 signed on March 22, 2011 A 2 Ebert v. Day, No CV (TXCA3) 15

16 ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 11 August 14 P9:04 Lisa Matz CLERK

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