Why "Wrongful Foreclosure" Claims Are Irrelevant in Post-Foreclosure Evictions

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

Many times people who have lost their homes to foreclosure refuse to vacate. Their continued possession of the property poses obvious problems for the purchaser at the foreclosure or trustee's sale because, as former owners, they have no lease and no obligation to pay rent. In addition, former owners are frequently hostile and resentful of the fact that the foreclosure occurred. This resentment can result in purposeful damage to the property or a "hunkering down" mentality characterized by a refusal to accept the validity of the foreclosure or the Substitute Trustee's Deed conveying the property to a new owner.

Lawyers or organizations offering "foreclosure relief," "foreclosure assistance" or "foreclosure mitigation" services typically seek to prevent foreclosure by  identifying alleged defects in the foreclosure process. When reliance upon these alleged deficiencies does not successfully stop a property from being foreclosed, the next step is usually the filing of a "wrongful foreclosure" lawsuit that claims that the Substitute Trustee's Sale was somehow void  or improper and should be reversed. Sometimes the new owner of the property is joined as a Defendant in such a lawsuit.

When the new owner of the foreclosed property (most frequently the purchaser at the Trustee's Sale) cannot get the prior (now-foreclosed) owner to vacate or surrender possession, there is no option but to commence an eviction suit.  Almost like clockwork, the former owner will assert that the Justice Court cannot hear the eviction suit because such a suit implicates title to the property, and in Texas, jurisdiction to consider title is reserved for the district courts. Thus, the argument goes, a determination of possession cannot be made without also determining title, and this determination cannot be made in the context of an eviction case pending in the Justice Court.

Texas courts of appeals have repeatedly considered and rejected this argument. 

Instead, courts have relied upon the language contained in the prior owner's Deed of Trust to hold that the foreclosure sale separates the issue of title from that of a right of possession. This holding typically turns on language in the Deed of Trust whereby the Borrower (the former owner) agrees that 

"if the Property is sold pursuant to [the acceleration and remedies section of the Deed of Trust], Borrower or any person holding possession of the 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 of possession or other court proceeding."

Given this agreement by the former owner (as Borrower), the foreclosure sale made him a "tenant at sufferance," and, accordingly, defects in the foreclosure process are IRRELEVANT and IMMATERIAL to the right of possession of a purchaser at such foreclosure sale.

If you are a purchaser of property at a Substitute Trustee's Sale / Foreclosure Sale who is required to evict a former owner, you should contact an experienced eviction lawyer.

Whether a Tenant or Landlord, You Never Want to See This on Your Door!

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

Whether you're a Landlord or a Tenant in San Antonio, having a notice like this posted on your door by the Bexar County Sheriff means that your eviction lawsuit has not ended peacefully. 

Texas Property Code Section 24.0061 entitles a landlord who prevails in an eviction suit to a Writ of Possession, and requires that such writ order the officer executing it to:

(1) post a written warning of at least 8-1/2 by 11 inches on the exterior of the front door of the rental unit notifying the tenant that the writ has been issued and that the writ will be executed on or after a specific date and time stated in the warning not sooner than 24 hours after the warning is posted; and

(2) when the writ is executed:

(A) deliver possession of the premises to the landlord;

(B) instruct the tenant and all persons claiming under the tenant to leave the premises immediately, and, if the persons fail to comply, physically remove them;

(C) instruct the tenant to remove or to allow the landlord, the landlord's representatives, or other persons acting under the officer's supervision to remove all personal property from the rental unit other than personal property claimed to be owned by the landlord; and

(D) place, or have an authorized person place, the removed personal property outside the rental unit at a nearby location, but not blocking a public sidewalk, passageway, or street and not while it is raining, sleeting, or snowing.

Understanding the Meaning of "Default" in an Eviction Appeal -- Obtaining a Default Judgment in the County Court at Law

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

In most Texas lawsuits, the threshold for defining a Defendant's "Answer" is pretty low.  In fact, just about any responsive writing typically constitutes an "Answer" that prevents a Plaintiff from obtaining a Default Judgment.  See Santex Roofing Sheet Metal, Inc. v. Venture Steel, Inc., 737 S.W.2d 55, 56-57 (Tex.App.—San Antonio 1987, no writ) ("Texas courts have always been reluctant to uphold a default judgment without notice where some response from the defendant is found in the record"); See also, Terehkov v. Cruz, 648 S.W.2d 441, 442 (Tex.App.—San Antonio 1983, no writ) (signed letters to clerk timely acknowledging receipt of citation sufficed as "pro se answer" to prevent default judgment).  Stated simply, just about any time that a Defendant in a Texas lawsuit timely files  a signed letter that identifies the parties, the case, and the defendant's current address, he has sufficiently appeared by "answer," and is not subject to a default judgment. 

Evictions cases, however, are non-typical, and the standard for obtaining a Default Judgment in an eviction appeal to the County Court at Law is, arguably, diminished by operation of Texas Rule of Civil Procedure 510, which "applies to a lawsuit to recover possession of real property under Chapter 24 of the Texas Property Code." See Tex.R.Civ.P. 510.1.

All eviction cases in Texas originate in the Justice Court.  Rule 510.6 governs the Defendant's Answer in the Justice Court, and provides: 

1. The defendant must appear for trial on the day set for trial in the citation. The defendant may, but is not required to, file a written answer with the court on or before the day set for trial in the citation. 
   

Thus, no pre-trial default judgment is available in the Justice Court because a Defendant need not file a written answer before the trial date.  Stated differently, there is no "Answer Day" in Justice Court other than the date of trial. As such, most Defendants in eviction cases do not file written answers, and there is no immediate consequence to such decision.

However, once a Judgment of Eviction is appealed to the County Court, the rules of the game change, and Rule 510.12 governs the effect of failure to file a written Answer. This Rule provides: 

An eviction case appealed to county court will be subject to trial at any time after the expiration of 8 days after the date the transcript is filed in the county court. If the defendant has filed a written answer in the justice court, it must be taken to constitute his appearance and answer in the county court and may be amended as in other cases. If the defendant made no answer in writing in the justice court and fails to file a written answer within 8 days after the transcript is filed in the county court, the allegations of the complaint may be taken as admitted and judgment by default may be entered accordingly. 

 As stated above, most Defendants do not file written Answers in Justice Court. Failure to file such an Answer, coupled with failure to timely file a written Answer in the County Court at Law places a Defendant in default under Rule 510.12 -- even if that Defendant has filed a "Notice of Appeal," "Pauper's Affidavit" or other responsive pleading associated with perfecting the appeal from Justice Court to County Court.  

In my experience, County Court judges will grant a Plaintiff/Landlord's Motion for Default Judgment based upon such failure to  file a written Answer, notwithstanding a Defendant's technical "appearance" in the case by filing the appeal.  

**See also Judgment Nihil Dicit, which is the subject of another post on this blog** 

What is the Statute of Limitations Period Within Which A Landlord Must Bring An Eviction Case in Texas?

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

Let's face it... some tenants deserving of eviction are allowed to remain in a given rental property for far longer than they should. Often they remain in place even after being served with a Notice to Vacate by either simply ignoring the notice and/or refusing to surrender possession of the property despite a landlord's demand that they do so.  From a logical standpoint, a landlord's inaction over a sufficient period of time should constitute a waiver of the right to pursue an eviction (FE &D) action, as the result of being time-barred.

After all, Texas Civil Practice and Remedies Code section 16.003 provides that a forcible detainer suit must be brought within two years, or, more succinctly, "not later than two years after the date the cause of action accrues." See Tex. Civ. Prac. & Rem. Code § 16.003(a). Thus, there exists a 2 year limitations period on FE & D/eviction suits.   However, this 2 year period BEGINS to run-on the date of accrual. As such, an event of "accrual" is the determinitive factor in considering the expiration of the limitations period for an eviction (and any other cause of action, for that matter).  

Notably, Texas Courts have held that a forcible-detainer action accrues each time a person refuses to surrender possession of real property after a person entitled to possession of the property delivers a proper written notice to vacate. See Federal Home Loan Mortg. Corp. v. Pham, No. 14-13-00109-CV,

2014 WL 5034638, at *5 (Tex. App.—Houston [14th Dist.] Oct. 9, 2014, no pet.) (new and independent cause of action for forcible detainer arises each time person refuses to surrender real property after person entitled to possession delivers proper written notice to vacate); Puentes v. Fannie Mae, 350 S.W.3d 732, 739 (Tex. App.—El Paso 2011, pet. dism’d) (subsequent forcible detainer action constitutes new and independent action to determine which party had superior right of immediate possession at time suit was filed).

Thus, under Tex. Prop. Code § 24.002 (defining a forcible detainer as a refusal to surrender possession of real property on demand...), each refusal to surrender possession of real property on written demand for possession constitutes a new forcible detainer.

Under a plain application of how Courts determine "accrual" of a landlord's claim for FE & D, it is clear that in order to start the limitations period anew (and avoid being time-barred from filing suit), an owner or landlord must simply issue a new Notice to Vacate that complies with Tex. Civ. Prop. Code § 24.005.  Each time that the tenant refuses to comply with such a notice by surrendering possession as demanded by the landlord, that tenant is subject to an FE & D suit, notwithstanding the passage of time from prior notices.

Why Your Tenant's Bexar County, San Antonio, Texas Eviction Appeal Is Taking So Long to Go to Court

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

Most landlords/property owners who find themselves the victim of an appeal by a tenant who was evicted in the Justice of the Peace (J.P.) court aren't familiar with the lay of the land once that appeal goes to the County Court at Law.

By law, any party (landlord or tenant) may appeal a Justice Court's Eviction decision to the County Court at Law. This is a matter of right. Further, the appeal is taken de novo, which means "new," or as I explain things: "as if the first trial never occurred."

The rules of the game are much different in the County Court at Law.  This is, in part, because the JP Courts are designed to be "user friendly" and serve as the "people's court." The County Court does not make this claim, and is further governed by standards which don't apply to Justice Court. Among these are the Texas Rules of Evidence.

As a lawyer who handles evictions and eviction appeals on behalf of landlords, property owners and property managers, I am frequently contacted by such a person who finds that their tenant's appeal is "languishing" in the County Court at Law. Often, during this period of non-activity, the tenant continues to live rent-free, and "nothing is happening."  

Many folks have the same inquiry:  "When will the County Court at Law schedule the tenant's eviction for trial?"  

The Answer is simple and universally true:  "Not until somebody requests a trial date in writing."  

I realize that this is a departure from what happened in the JP Court. The procedure there (at least in Bexar County) is that a trial date is set at the time that the eviction suit (FE & D) is filed. This is absolutely, positively not the case in the County Court at Law.

In the Bexar County County Courts at Law, the Clerk will set the case for trial only upon receipt of a properly filed "Motion to Set," which the party setting the case is required to send to the opposing party.

It makes sense that the already-evicted Tenant who continues to possess the rental dwelling has a vested interest on letting their appeal sit on the docket. Stated differently, the appellant/tenant has no incentive to set the appeal for trial.  Thus, it is imperative upon the landlord to obtain a trial setting. Otherwise, the case will remain dormant for quite some time.

Fortunately, there is a mechanism for an expedited trial in non-payment of rent appeals. In other cases, trial can be scheduled at the Court's earliest availability.

If you are a landlord, property owner or property manager who finds yourself as the Appellant in a Tenant's eviction appeal, you may be well advised to seek the assistance of an experienced evictions lawyer who understands the process, personalities and rules of the game at the County Court at Law.

Things Every Landlord or Property Manager Should Bring to Eviction Court Every Time

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

I'm always surprised at how common it is for a landlord or a property manager (and sometimes even a lawyer representing a landlord or property manager) to show up for an eviction trial without the evidence necessary to prove the case.  This lack of preparedness is somewhat bewildering.

As in any case, eviction lawsuits require the Plaintiff (the party seeking the eviction) to carry the burden of proof by demonstrating that they are entitled to the relief sought from the Court.  Failure to bring copies of the documentary evidence necessary to make that showing can -- and often does -- result in the landlord losing the eviction trial. 

At a minimum, an evicting party (the landlord/owner or his/her property manager) should bring the following items of evidence to every eviction trial:

1)  A copy of the signed Lease. Why ask the Judge to determine who's telling the truth when your testimony about the rental arrangement (term, rent, whether pets are allowed, etc.) differs from the tenant's testimony?  Bring the signed Lease, and let the Judge read the arrangement himself.

2)  A copy of your Notice to Vacate, and evidence as to its delivery.  Proper and timely delivery of a Notice to Vacate are mandatory under the law. See Texas Property Code Section 24.005.  Provide the Judge with a copy of your notice and the accompanying mail receipt/proof of delivery,  so that he is not forced to endure a swearing match as to whether you issued and served it or not. A landlord's failure to prove that a Notice to Vacate was delivered before the eviction suit was filed is fatal to the eviction action.

3)  Evidence of the Tenant's Breach.  In non-payment cases, a record of account works great. In evictions resulting from other types of breaches, photos of damage, letters from Code Compliance,  police reports, Affidavits from repair technicians or neighbors, or other documentary evidence of the breach should suffice.

4)  A Deed or Other Evidence That You Own the Property.  This is particularly important in post-foreclosure evictions, but more and more frequently, the tenant is challenging the landlord's ownership of the property. Do yourself a favor, and print a copy of your deed (which is available online at the Bexar County Clerk's website) even if you believe that ownership is a non-issue.

Again, failure to bring these pieces of evidence can be -- and frequently is -- fatal to a Landlord's eviction case.  If the Court finds in favor of the tenant or dismisses the case on a technicality, the Landlord will be forced to start the entire process again, and pay a new filing fee.

Former Owners Increasingly Refuse to Vacate Following Foreclosure Sale -- New Owners Forced to Evict

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

Sadly, my San Antonio evictions practice frequently involves the filing of FE&D suits to remove former owners from homes they lost through a foreclosure and the attendant sale on the Courthouse steps. My client is almost always an innocent third party who purchased the property at the foreclosure /Substitute Trustee's Sale, but cannot take possession because the former owner refuses to vacate.

Theses cases are never fun, and I feel bad for the former owner.  However, I find a little solace in the fact that the former owners have a set of remedies available to them. Further, those remedies are not against the new owner, but rather, against the bank or other lender who posted the home for foreclosure, and ultimately sold it to the new owner (my client).

It seems like lately, more often than ever, the former owners are fighting the evictions -- which the new owner rarely loses based upon the Substitute Trustee's Deed evidencing the change in ownership.  When the former owner is unsuccessful in stopping or defeating the eviction, he or she frequently "lawyers-up" and runs to District Court to file a new lawsuit and obtain a Temporary Restraining Order that prevents the Eviction Judgment from being carried out.  

Invariably, the new suits allege all sorts of misdeeds on the part of the lender who foreclosed, allege that the foreclosure was invalid, and seek a court declaration that the sale to the new owner is invalid and should be reversed. 

When neither the new owner nor the lender who foreclosed are Texas residents, these suits usually end-up in federal court.  Yes -- eviction suits wind up becoming "federal cases."

Increasingly, it seems that the Judges -- both state and federal -- are now recognizing that the new owner had nothing to do with the mortgage loan, how it was serviced, or whether the lender violated some law in conducting the sale. Instead, the new owner is just somebody who spent their money and received nothing in return but a lawsuit. In light of this recognition, we are achieving a large degree of success in obtaining possession of the property for the new owner, notwithstanding the fact that the "wrongful foreclosure" lawsuit against the lender remains pending.

Purchasers of real properties on the Bexar County courthouse steps who find themselves wrapped-up in a wrongful foreclosure suit against a foreclosing lender are well advised to hire an experienced eviction lawyer.

Tenant Appealed Eviction on a Pauper's Affidavit, but Failed to Pay Rent? This May be a Good Thing!

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

The Texas Rules of CivilProcedure certainly have their limitations. Any experienced lawyer can describe circumstances either never contemplated by the Rule drafting/advisory committee, or scenarios where they just got it wrong.  

However, when it comes to non-payment of rent eviction appeals upon Pauper's Affidavits, I fervently believe that the Rules are efficient and effective.

Let's face it, non-paying tenants frequently know how to game/abuse the system. Far too often, they don't pay rent, don't show up for their eviction trial (in Justice Court), and then file a meritless appeal to County Court at Law -- many times without spending a dime because they file a Pauper's Affidavit as authorized by law. To make matters worse, they don't pay any rent while the appeal is pending -- a process that I have seen take close to a year!  

Unfortunately, when the Landlord isn't represented by an experienced evictions lawyer and is otherwise unfamiliar with the law, the Tenant's appeal can result in substantial delay. Time is money in this instance, and delay frequently equates to  substantial financial loss (i.e no rent coming in, and possibly even mortgage payments going out).  But this doesn't have to be the case for a few reasons.

First, the Landlord can (within the bounds of the Court's schedule), control the timing of an eviction appeal.  Eviction appeals are expressly entitled to precedence in the County Court under Rule 510.9(c)(5)(B)(vi) -- this is a far too little known and little used fact.  Frequently, trial on an eviction appeal can be scheduled within 8 days of the date that the County Court at Law dockets the appeal (after receiving the file from the Justice Court)

Second, and even more important, is the fact that there exist tremendous consequences to a tenant who does not pay rent during an appeal of an eviction Judgment based upon non-payment of rent.  Rule 510.9(C)(5)(B)(ii) require and Texas Property Code Section 24.0053 both such an appealing tenant to – during the entire appeal -- pay rent into the county court registry as it becomes due, or within 5 days of the rental due date under the terms of the parties’ rental agreement (i.e. the Lease). Failure to make the aforementioned payment(s) constitutes a default, and upon a showing of such default, the Landlord is entitled to a MANDATORY writ of possession.

That’s right, Texas Rule of Civil Procedure 510.9(c)(5)(B)(iv) provides that the Court “must issue a writ of possession” upon Plaintiff /Landlord showing that the Defendant/Tenant is in default by failing to pay rent during the appeal.   Texas Property Code Section 24.0054 contains the same requirement, and also provides for Landlord remedies. While relief under Rule 510.9(c)(5)(B)(iv) is not dispositive of the entire case on appeal (the issues of rent and damages remain pending), such relief does change the parties' circumstances drastically, because possession of the rental property is immediately returned to the Landlord/Plaintiff through the writ of possession. Many times, loss of the property will result in a Tenant simply abandoning the remainder of their appeal.

If you are a Landlord or Property Manager who finds yourself facing a Non-Paying Tenant's frivolous appeal of an eviction Judgment, you are well served to hire an experienced eviction lawyer who knows and understands the Rules of Procedure, and who can end the appeal effectively and quickly. Our firm exclusively represents Owners/Landlords and Property Managers in Evictions cases.

Eviction Lawsuits in San Antonio, Texas

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

If a tenant refuses to surrender possession of real property after a proper, written demand for possession by one entitled to such possession, the tenant commits a forcible detainer. TEX. PROP. CODE ANN. § 24.002 (West 2000); see Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 915 (Tex. 2013); Kennedy v. Andover Place Apartments, 203 S.W.3d 495, 497 (Tex. App.—Houston [14th Dist.] 2006, no pet.). 

The purpose of a forcible detainer action (also known as an eviction lawsuit) is to determine who has the right to possession of the premises. Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782, 785 (Tex. 2006); McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex. 1984). By law, a forcible detainer action must be filed in the Justice Court in the County and precinct in which the property is located.

“To prevail in a forcible detainer action, . . . the plaintiff must present sufficient evidence of ownership to demonstrate a superior right to immediate possession.” Dormady v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555, 557 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.); accord Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.). 

A plaintiff may demonstrate its superior right to possession by showing it is entitled to evict the tenant for cause, such as under the terms of the lease. See Hinojosa v. Hous. Auth. of Laredo, 940 S.W.2d 763, 765–66 (Tex. App.—San Antonio 1997, no writ); Barajas v. Hous. Auth. of Harlingen, 882 S.W.2d 853, 855–56 (Tex. App.—Corpus Christi 1994, no writ). In addition, a Plaintiff may demonstrate his ownership and right to possession by presenting a deed reflecting title to the property.

Fire Marshal Faces Federal Suit for Role in Evicting Woman on Son's behalf

San Antonio Texas Eviction Attorney Trey Wilson wrote:

(CN) - A Pennsylvania fire marshal must face claims that he helped a man evict his mother with 24 hours' notice, seal her locks and put her in a nursing home, a federal judge ruled.

Camilla Evans had resided and rented a property in Emsworth, Pa., for 50 years when the local fire marshal gave her 24 hours to vacate the premises, according to the complaint.

The eviction allegedly sprang from a family dispute over the distribution of an estate.

Evans said her son and daughter-in-law, David and Judith Evans, the lawful owners of the property at the time, had tapped the marshal to evict her. Though the trio tried to commit Evans to a nursing home on the basis of incompetence, their efforts proved unsuccessful, the complaint states.

David and Judith ultimately drilled in the locks to the home, leaving Camilla Evans and her daughter, Camilla Conners, unable to retrieve their possessions, and forcing them to live in a hotel since November 2012, according to the complaint.

 The mother and daughter later sued David, Judith, the borough and the marshal in federal court, claiming that they unlawfully seized and condemned Evans' property pursuant to an alleged custom or policy.

The complaint asserts claims for constitutional violations and due process deprivations under the Fourth, Fifth and 14th Amendments, as well as numerous state-law claims for conspiracy, breach of contract, unjust enrichment, conversion, trespass and invasion of privacy against the individual defendants.

U.S. District Judge Arthur Schwab refused to dismiss any part of the complaint last week for failure to state a claim.

Though the ruling gives only the last name of the fire marshal, a borough website states his full name as Michael Adams.

Schwab held that the complaint does "raise a reasonable expectation that discovery will reveal evidence of the necessary elements" and "provides adequate facts to establish 'how, when, and where,'" as set forth by the Supreme Court in Bell Atlantic Corp. v. Twombly in 2007.

 The complaint also shows a "plausible claim for relief," as required by the Supreme Court's decision in Ashcroft v. Iqbal in 2009, Schwab ruled. "Viewed in light of the foregoing pleading standards, this court finds that the allegations of the complaint, when taken as true, allow the court to draw a reasonable inference that the defendants are liable for the conduct and misconduct alleged, and that the complaint meets the standards as enunciated in Twombly and Iqbal," Schwab wrote.

After discovery, the defendants may raise the issues set forth in their motions to dismiss in a motion for summary judgment, the ruling states.