Opinion
NO. 01-16-00188-CV
02-02-2017
DANIEL W BOOTH; DEVONAE SERVANCE-BOOTH; PARRISH SERVANCE; SHIRLEY SERVANCE AND ALL OTHER OCCUPANTS, Appellants v. KONDAUR CAPITAL CORPORATION, AS SEPARATE TRUSTEE OF MATAWIN VENTURES TRUST SERIES 2014-3, Appellee
On Appeal from County Court at Law No. 1 Fort Bend County, Texas
Trial Court Case No. 16-CCV-056463
MEMORANDUM OPINION
Devonae Servance-Booth appeals from the trial court's judgment in an eviction suit. In seven issues, Servance-Booth argues the trial court should not have awarded possession to Kondaur Capital Corporation because (1) there was a defect in the notice for the foreclosure sale, (2) Kondaur breached the loan modification and forbearance plan, (3) Kondaur violated the mortgage servicing rules, (4) the trial court failed to hold a hearing on the supersedeas bond, (5) the mortgage debt had already been forgiven, and (6) Kondaur refused her mediation request.
We affirm.
Background
Kondaur obtained, in the justice of the peace court, a judgment awarding it possession of certain real property. Servance-Booth and the other defendants appealed to the county court at law. Following the trial, the trial court awarded a judgment of possession of the property to Kondaur. Servance-Booth appealed to this Court.
Right to Possession
An eviction suit (otherwise known as a forcible-detainer action) concerns only whether the plaintiff has a superior right to possession of the property. See TEX. R. CIV. P. 510.3(e) ("The court must adjudicate the right to actual possession and not title. Counterclaims . . . are not permitted in eviction cases. A claim that is not asserted because of this rule can be brought in a separate suit in a court of proper jurisdiction."); Black v. Wash. Mut. Bank, 318 S.W.3d 414, 417 (Tex. App.—Houston [1st Dist.] 2010, pet. dism'd w.o.j.) (citing Rice v. Pinney, 51 S.W.3d 705, 712 (Tex. App.—Dallas 2001, no pet.)). It "does not determine the ultimate rights of the parties to any other issue in controversy relating to the realty in question." Rice, 51 S.W.3d at 712. Any other complaints about the property, such as any error in the foreclosure sale, is not relevant to an eviction suit. See Williams v. Bank of N.Y. Mellon, 315 S.W.3d 925, 927 (Tex. App.—Dallas 2010, no pet.) ("Any defects in the foreclosure process or with appellee's title to the property . . . may be pursued in suits for wrongful foreclosure or to set aside the substitute trustee's deed, but they are not relevant in this forcible detainer action.").
Servance-Booth's arguments that she did not receive notice of the foreclosure (first issue), Kondaur breached a loan modification and forbearance plan (second issue), Kondaur violated the mortgage servicing rules (third issue), the mortgage debt had already been forgiven (fifth issue), and Kondaur refused her mediation request (sixth issue) are not relevant to whether Kondaur had sufficient proof of a superior right to possession. Because these issues are not relevant to a superior right of possession and because Servance-Booth does not otherwise raise an issue challenging Kondaur's proof on this matter, Servance-Booth's issues do not present grounds for reversing the trial court's judgment awarding possession.
We overrule Servance-Booth's first, second, third, fifth, and sixth issues.
Hearing on Supersedeas Bond
In her fourth issue, Servance-Booth argues that the trial court erred by failing to hold a hearing on the amount set for a supersedeas bond. Servance-Booth has not established that she filed a motion seeking an adjustment to the amount of the supersedeas bond. See McCullough v. Scarbrough, Medlin & Assocs., Inc., 362 S.W.3d 847, 849 (Tex. App.—Dallas 2012, no pet.) (holding courts may review amount set for security of judgment "on any party's motion"). Even so, the record reflects that the matter was raised and discussed during trial. Accordingly, a hearing was held on the matter.
We overrule Servance-Booth's fourth issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice Panel consists of Justices Keyes, Higley, and Lloyd.