Lua v. Capital Plus Financial, LLC, Tex. App.-Dallas No. 05-19-01227-CV, opinion (May 26, 2022)

Summary

An opinion of the Court of Appeals, Fifth District of Texas at Dallas, No. 05-19-01227-CV, in Rodolfo Espinosa Lua and Anel Lua, Appellants v. Capital Plus Financial, LLC, Appellee, filed May 26, 2022, by Justice Osborne. The appeal is from the county court's final judgment in a forcible-detainer action in favor of Capital Plus Financial, LLC. The Luas raise five issues, including that the presuit notice to vacate was defective and that defects in the foreclosure sale deprived Capital Plus of standing; the opinion decides issue one against the Luas. It concludes, "We affirm the county court's final judgment," and the accompanying judgment orders appellee to recover its costs of the appeal.

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“Lua v. Capital Plus Financial, LLC, Tex. App.-Dallas No. 05-19-01227-CV, opinion (May 26, 2022).” Original at www.search.txcourts.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/lua-v-capital-plus-financial-llc-tex-app-dallas-no-05-19-01227-cv-opin-905a654e5e/, SHA-256 4a96ae2faabff46f83be90aa50da189697d7391f49e5a500f7a9e49120650787.

Full text

Affirmed and Opinion Filed May 26, 2022

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01227-CV

RODOLFO ESPINOSA LUA AND ANEL LUA, Appellants
V.
CAPITAL PLUS FINANCIAL, LLC, Appellee

On Appeal from the County Court at Law No. 3
Dallas County, Texas
Trial Court Cause No. CC-19-02051-C

OPINION
Before Justices Osborne, Pedersen, III, and Nowell
Opinion by Justice Osborne
Rodolfo Espinoza Lua and Anel Lua appeal the trial court’s final judgment in

a forcible-detainer action in favor of Capital Plus Financial, LLC. The Luas raise

five issues on appeal arguing the county court erred because: (1) the presuit notice

to vacate was defective; (2) defects in the foreclosure sale deprived Capital Plus of

standing to pursue its claim for possession; and (3)–(5) (a) the trial court abused its

discretion when it admitted Capital Plus’s evidence and (b) Capital Plus offered no

evidence to show (i) the trustee’s deed is entitled to a presumption of validity so it

cannot be considered as evidence of Capital Plus’s superior right to possession,

(ii) its ownership of the property, or privity with the Luas which would allow Capital
Plus to use the deed’s tenancy-at-sufferance clause to dispossess them of the

property, and (iii) the Luas’ continued occupancy of the subject property. The

county court’s judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND
On February 28, 2017, the Luas executed a deed of trust to secure payment of

an extension of credit concerning real property. The security agreement provided

that, in the event of default, the lender could require immediate repayment of all

sums under the terms of the loan and invoke the power of sale. It also authorized

the foreclosure sale of the property to the highest bidder and permitted purchase of

the property by the lender or its designee. In addition, the security instrument stated

that, if the property was sold at a foreclosure sale, the Luas would immediately

surrender the property to the purchaser. However, if the Luas did not surrender

possession, they would become tenants at sufferance and could be removed by writ

of possession or other court proceeding.

The Luas defaulted, and the mortgage servicer initiated foreclosure

proceedings. On December 4, 2018, Capital Plus acquired the property at a non-

judicial foreclosure sale. On February 5, 2019, through its legal counsel, Capital

Plus sent written notice to vacate and demand for possession of the property to the

Luas.

Capital Plus filed an original petition for eviction in justice court (trial court

cause no. JE-1900284E). After a bench trial, the justice court signed a judgment in

–2–
favor of Capital Plus for possession of the property and noted that the Luas had failed

to answer or deny the suit. The Luas appealed the justice court’s judgment to the

county court (trial court cause no. CC-19-02051-A) for a trial de novo.1

During a bench trial before the county court, Capital Plus offered three

exhibits to support its claim for possession: (1) a trustee’s deed documenting Capital

Plus’s purchase of the property at a foreclosure sale and the transfer of the deed of

trust to Capital Plus; (2) a notice to vacate addressed to the Luas and dated February

5, 2019, sent by Capital Plus’s legal counsel; and (3) a deed of trust documenting

the security interest. These documents were admitted into evidence without

objection. The county court judge rendered judgment in favor of Capital Plus and

signed written findings of fact and conclusions of law.

II. PRESUIT DEMAND

In issue one, the Luas argue the presuit notice to vacate was defective. They

contend that under the language of the statute, only Capital Plus could have properly

sent them the notice and the actions of Capital Plus’s attorney do not suffice. The

Luas maintain that Texas Property Code §§ 24.002(b) and 24.005 limit the types of

parties who may send the notice to vacate. As a result, they argue that only a demand

sent by Capital Plus would be sufficient.

1
See TEX. R. CIV. P. 510.10(c).
–3–
A. Applicable Law

In a suit involving a tenant at will or tenant by sufferance, § 24.005(b) requires

the plaintiff to give the tenant written notice to vacate three days before the plaintiff

files a forcible-detainer suit unless the parties contracted for a different notice period.

TEX. PROP. CODE ANN. § 24.005(b); see also Howard v. U.S. Bank Nat’l Ass’n as

Trustee of OWS REMIC Tr. 2013-1, No. 05-19-00315-CV, 2020 WL 3786215, at *2

(Tex. App.—Dallas July 7, 2020, pet. denied) (mem. op.). The demand for

possession must be made in writing by a person entitled to possession of the

property. PROP. § 24.002(b); see also Howard, 2020 WL 3786215, at *2. The Texas

Property Code does not forbid a corporation or other business entity from using an

agent to deliver demand for possession. Howard, 2020 WL 3786215, at *2. This

sort of agency arrangement is approved and contemplated by the governing rules for

this type of suit, which recognize that “in an eviction case,” a corporation may “be

represented by a property manager or other authorized agent.” TEX. R. CIV. P.

500.4(b)(2); see also Howard, 2020 WL 3786215, at *2. Written demand for

possession by a corporation’s or business entity’s property manager or other

authorized agent is sufficient to satisfy the requirement in § 24.005 of the Texas

Property Code that the demand for possession be made in writing by a person entitled

to possession of the property. Howard, 2020 WL 3786215, at *2.

–4–
B. Application of the Law to the Facts

We construe the Luas’ argument to challenge the following finding of fact

made by the county court:

8. The [county] [c]ourt f[inds] that the notice requirements under
the Property Code were met by [Capital Plus] by sending the 3[-
]day letter dated February 5, 2019 to the [Luas] prior to [Capital
Plus] filing the eviction suit, and the [county] [c]ourt admitted
said letter into evidence without objection.

Also, we construe the Luas’ argument to challenge the following conclusions of law

by the county court:

7. The [county court] applied Texas Property Code [§] 24.005.

8. The [county court] applied Texas Property Code [§] 24.002.

The Luas do not contend that they did not receive a notice to vacate or deny

that they refused to vacate the premises. Rather, they claim that the notice to vacate

was inadequate under the statute because it was sent by Capital Plus’s attorney. The

record shows that the notice to vacate was sent by a law firm representing Capital

Plus. This sort of agency arrangement is approved and contemplated by the

governing rules for this type of suit, which recognize that “in an eviction case,” a

corporation may “be represented by a property manager or other authorized agent.”

TEX. R. CIV. P. 500.4(b)(2); see also Howard, 2020 WL 3786215, at *2. Here, the

law firm stated in the demand that it was representing Capital Plus. We considered—

and rejected—this identical argument in Howard, 2020 WL 3786215, at *2.

–5–
Accordingly, we conclude that Capital Plus acted properly through its law firm in

sending the presuit demand.

The Luas also argue that the foreclosure sale was void because the foreclosure

violated a temporary restraining order (TRO). This argument fails because: (1) the

TRO is from a different proceeding and is not in the appellate record; and (2) defects

in the foreclosure process cannot be considered in a forcible-detainer action. See

Howard, 2020 WL 3786215, at *3. A copy of a TRO is attached to the Luas’ brief,

but we cannot consider attachments not included in the appellate record. See Pitts

v. Bank of N.Y. Mellon Tr. Co., Nat’l Ass’n, 622 S.W.3d 596, 599 (Tex. App.—

Dallas 2021, no pet.).

Issue one is decided against the Luas.

III. JURISDICTION

In issue two, the Luas argue that: (1) defects in the foreclosure sale deprived

Capital Plus of standing to pursue its claim for possession;2 and (2) the county court

judge erred in hearing the case and rendering judgment because Capital Plus’s

petition for eviction was not a valid pleading on which judgment could have been

granted because it was not sworn to by Capital Plus. We construe the Luas’

arguments to challenge the following finding of fact made by the county court:

2
Although the Luas appear to argue standing in a jurisdictional sense, they ask us to render judgment
in their favor or remand the case rather than dismiss the forcible-detainer action for want of jurisdiction.
See Pike v. Tex. EMC Mgmt., L.L.C., 610 S.W.3d 763, 774 (Tex. 2020); Howard, 2020 WL 3786215, at *2
n.2.
–6–
9. The [county] [c]ourt decline[s] to rule on any other pretrial or
trial motions filed by the [Luas] including a plea to the
jurisdiction, and the [county] [c]ourt [finds] prior to the start of
the trial that the County Court at Law #3 [has] jurisdiction for
this direct appeal from the justice of the peace court Precinct 2,
Place 2, Dallas County, Texas.

Also, we construe the Luas’ argument to challenge the following conclusions of law

by the county court:

1. The [county] [c]ourt [concludes] it [has] jurisdiction over the
parties and the case from a direct appeal from the Justice of the
Peace Precinct 2, Place 2, Dallas County, Texas by and through
an order from the County Court at Law #1 with permission of the
County Court at Law #3 accepting said transfer of the appeal and
holding a trial de novo on the issue of possession from a forcible
detainer lawsuit.

2. The [county] [c]ourt denied any pleas to the jurisdiction filed by
[the Luas] at the Justice of the Peace level.

A. Standing
In the first part of issue two, the Luas claim that Capital Plus lacks standing

based on a series of dependent events. They maintain that: (1) because Capital Plus

failed to submit an affidavit verifying its observance of certain requirements prior to

the sale of the property, there are defects in the sale; (2) because there are defects in

the sale, the resulting trustee’s deed is invalid; (3) because the trustee’s deed is

invalid, Capital Plus lacks standing to prosecute its claim; and (4) because Capital

Plus lacks standing, its petition is invalid and the trial court lacks jurisdiction.

–7–
1. Standard of Review

Standing is a legal question regarding subject-matter jurisdiction, so an

appellate court conducts a de novo review of a trial court’s ruling. See In re H.S.,

550 S.W.3d 151, 155 (Tex. 2018); Howard, 2020 WL 3786215, at *3.

2. Applicable Law

To have standing, the pleader bears the burden of alleging facts that

affirmatively demonstrate the court’s jurisdiction to hear the case. Tex. Ass’n of Bus.

v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); see also Howard, 2020

WL 3786215, at *3. When the issue of standing is unchallenged, a trial court looks

solely at the plaintiff’s pleadings. Howard, 2020 WL 3786215, at *3. However,

when standing is challenged, the burden of proof is on the person whose interest is

challenged to present sufficient evidence to prove that he is an interested person. Id.

Standing is a component of subject-matter jurisdiction. Tex. Air Control Bd.,

852 S.W.2d at 445–46; see also Howard, 2020 WL 3786215, at *3. Under Texas

law, the standing inquiry requires examination of the following: (1) the plaintiff must

be personally injured—he must plead facts demonstrating that he (rather than a third

party) suffered the injury—and the injury must be concrete and particularized, actual

or imminent, not hypothetical; (2) the plaintiff’s alleged injury is fairly traceable to

the defendant’s conduct; and (3) the plaintiff’s alleged injury is likely to be redressed

by each form of requested relief. Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477,

–8–
485 (Tex. 2018); Heckman v. Williamson Cty., 369 S.W.3d 137, 154–55 (Tex. 2012);

see also Howard, 2020 WL 3786215, at *3.

3. Application of the Law to the Facts
In its petition for eviction filed in the justice court, Capital Plus alleged that it

purchased the property at a public sale authorized by the deed of trust, the Luas were

given notice to vacate on December 13, 2018, and again on February 5, 2019, the

Luas are tenants at sufferance, and they have failed to surrender possession of the

property. These allegations by Capital Plus allege a concrete injury suffered

personally by the company that is fairly traceable to the Luas’ failure to vacate the

property, which would likely be resolved by the county court’s writ of possession.

See Howard, 2020 WL 3786215, at *3. Also, the following documents were

admitted into evidence during the trial before the county court: (1) a trustee’s deed

documenting Capital Plus’s purchase of the property at a foreclosure sale and the

transfer of the deed of trust to Capital Plus; (2) a notice to vacate addressed to the

Luas and dated February 5, 2019, sent by Capital Plus’s legal counsel; and (3) a deed

of trust documenting the security interest. The record reveals no defect in standing.

See id.

Further, the foreclosure defects of which the Luas complain do not relate to

standing and are not at issue in this suit. See Shields L.P. v. Bradberry, 526 S.W.3d

471, 478 (Tex. 2017); Howard, 2020 WL 3786215, at *3. The sole issue in a

forcible-detainer action is the right to immediate possession of real property. TEX.

–9–
R. CIV. P. 510.3(e); Shields, 526 S.W.3d at 478; see also Howard, 2020 WL

3786215, at *3. Any defects in the foreclosure process or with the title to the

property may not be considered in a forcible-detainer action.3 Howard, 2020 WL

3786215, at *3. Those defects may be pursued in suits for wrongful foreclosure or

to set aside the trustee’s deed, but they are not relevant in a forcible-detainer action.

Id. The Luas’ allegations concerning foreclosure defects relate to the question of

which party has the right to title or damages, not standing. The existence of a quarrel

over title does not deprive the justice court, the county court, or this appellate court

of jurisdiction. See id.

The Luas rely on A Plus Investments, Inc. v. Rushton, No. 02-03-00174-CV,

2004 WL 868866 (Tex. App.—Fort Worth Apr. 22, 2004, no pet.) (mem. op.), for

the proposition that the alleged defect in the statutorily-required presuit notice

required the trial court to abate or dismiss this case. However, A Plus held that the

county court lacked jurisdiction over a forcible detainer suit “[b]ecause an

3
When there are grounds for determining immediate possession independent from title, the justice
court and county court will have jurisdiction to hear the forcible-detainer action. Howard, 2020 WL
3786215, at *3 n.3. Not only can the right to immediate possession be determined separately from the right
to title, but the Texas Legislature purposely established just such a system. See id. Challenges to the
validity of a foreclosure sale do not deprive the justice court or county court of jurisdiction. See id.
Generally, a justice court or county court is not required to determine questions of title when
considering a forcible-detainer suit if the contract provides for a landlord–tenant relationship upon default,
the buyer becomes a tenant by sufferance in the event of default, or the buyer is subject to a forcible-detainer
suit upon default. See id. Tenant-by-sufferance clauses separate the issue of possession from the issue of
title. See id. Under these provisions, a foreclosure sale transforms the borrower into a tenant by sufferance
who must immediately relinquish possession to the foreclosure-sale purchaser. See id. Accordingly, if a
deed of trust provides that in the event of foreclosure, the previous owner will become a tenant by sufferance
if he does not surrender possession, the justice court and county court can resolve possession without resort
to title. See id.
–10–
unresolved question of title was so intertwined with the right of possession that the

action could not have been adjudicated without first determining title.” Id. at *1.

Further, a challenge to the form of a trustee’s deed does not forestall a claim of

superior title. Rosalez v. Foson Invs., LLC, No. 02-20-00023-CV, 2021 WL

1918755, at *3 (Tex. App.—Fort Worth May 13, 2021, pet. denied) (mem. op.).

Accordingly, the defect alleged by the Luas does not present the same fundamental

issue that was present in A Plus.

We conclude the Luas have not demonstrated that Capital Plus lacked

standing to pursue its forcible-detainer action or that the courts below lacked

jurisdiction over that action. The first part of issue two is decided against the Luas.

B. Pleading Requirements
In the second part of issue two, the Luas argue Capital Plus’s petition for

eviction does not meet the threshold requirement of Texas Rule of Civil Procedure

510.3 that a forcible-detainer petition be sworn to by the plaintiff. They contend that

the attorney for Capital Plus is not a party in interest, his verification is insufficient

to satisfy Rule 510.3, and, as a result, the petition was not signed in a manner that

perjury could be assigned.

1. Applicable Law

Under Texas Rule of Civil Procedure 510.3, a petition for eviction must,

among other things, be sworn to by the plaintiff. TEX. R. CIV. P. 510.3(a). An

attorney’s verification of an eviction pleading on behalf of a corporate client satisfies

–11–
the requirements of Rule 510.3. See Isaac v. CitiMortgage, Inc., 563 S.W.3d 305,

312 (Tex. App.—Houston [1st Dist.] 2018, pet. denied); Lenz v. Bank of Am., N.A.,

510 S.W.3d 667, 669 (Tex. App.—San Antonio 2016, pet. denied).

Further, the requirement set out in Rule 510.3 is not jurisdictional. Wreh v.

Gianotos, No. 05-19-01213-CV, 2021 WL 2548708, at *2 (Tex. App.—Dallas June

22, 2021, pet. denied) (mem. op.); Rosas v. Chih Ting Wang, No. 05-18-01013-CV,

2019 WL 3986301, at *4–5 (Tex. App.—Dallas Aug. 23, 2019, no pet.) (mem. op.).

Accordingly, a defective verification does not deprive a county court of jurisdiction

to hear a forcible-detainer action. See Wreh, 2021 WL 2548708, at *2; Rosas, 2019

WL 3986301, at *4–5.4

2. Application of the Law to the Facts
The alleged failure by Capital Plus to comply with Rule 510.3 is not

jurisdictional. See Wreh, 2021 WL 2548708, at *2; Rosas, 2019 WL 3986301, at

*4–5. As a result, the Luas were required to preserve the issue by raising it in the

county court. See Wreh, 2021 WL 2548708, at *2. The Luas do not point us to, nor

could we find where they raised this issue in the county court. Nevertheless, the

record shows that Capital Plus’s attorney swore to the eviction pleading on behalf of

his client, which satisfies the requirements of Rule 510.3. See Isaac, 563 S.W.3d at

312; Lenz, 510 S.W.3d at 669.

4
See also Isaac, 563 S.W.3d at 312; Banks v. Bank of Am., N.A., No. 03-16-00046-CV, 2017 WL
1832489, at *1 n.2 (Tex. App.—Austin May 4, 2017, no pet.) (mem. op.); Lenz, 510 S.W.3d at 669; Norvelle
v. PNC Mortg., 472 S.W.3d 444, 446 (Tex. App.—Fort Worth 2015, no pet).
–12–
The second part of issue two is decided against the Luas.

IV. EVIDENTIARY COMPLAINTS

In issues three through five, the Luas raise two distinct arguments: (1) the trial

court erred when it admitted Capital Plus’s exhibits into evidence; and (2) the

evidence is legally insufficient to support the trial court’s findings of fact and the

county court erred in its conclusions of law because Capital Plus’s evidence was

essentially no evidence.5

A. Admission of Evidence
In the first part of issues three through five, the Luas argue that the county

court abused its discretion when it admitted the following evidence: (1) the trustee’s

deed documenting Capital Plus’s purchase of the property at a foreclosure sale and

the transfer of the deed of trust to Capital Plus; (2) a notice to vacate addressed to

the Luas and dated February 5, 2019, sent by Capital Plus’s legal counsel; and (3) the

deed of trust documenting the security interest. Capital Plus responds that the Luas

failed to preserve their complaint for review because they did not object to the

admission of the evidence.

To preserve error for appellate review, a party must make his complaint to the

trial court by a timely request, objection, or motion that states the grounds for the

5
We note that the Luas do not specify whether they are challenging the legal or factual sufficiency of
the evidence. However, because the Luas argue there was “no evidence” to support the judgment, we
construe their issues as raising only legal sufficiency arguments. See Scott Pelley P.C. v. Wynne, 578
S.W.3d 694, 701 (Tex. App.—Dallas 2019, no pet.).
–13–
ruling sought with sufficient specificity to make the trial court aware of the

complaint. TEX. R. APP. P. 33.1(a)(1)(A); see also Howard, 2020 WL 3786215, at

*4.

The county court made the following findings of fact:

3. The [county [c]ourt [finds] . . . [the Trustee’s Deed] was
admitted into evidence without objection.

....
6. The [county] [c]ourt [finds] the [county] [c]ourt admitted the
deed of trust into evidence without objection.

....
8. The [county] [c]ourt [finds] . . . the [county] [c]ourt admitted [the
3-day letter dated February 5, 2019] into evidence without
objection.

The record shows that the Luas did not object to the admission of this evidence.

Accordingly, the Luas have not preserved the first part of issues three through five

for appellate review. See TEX. R. APP. P. 33.1(a)(1)(A); Howard, 2020 WL

3786215, at *4.

B. Legal Sufficiency of the Evidence

In the second part of issues three through five, the Luas argue that there is no

evidence to show: (1) the trustee’s deed is entitled to a presumption of validity so it

cannot be considered as evidence of Capital Plus’s superior right to possession;

(2) Capital Plus owns the property or had privity with the Luas which would allow

Capital Plus to use the deed’s tenancy-at-sufferance clause to dispossess them of the

property; and (3) the Luas continued occupancy of the subject property. As a result,
–14–
they claim there is no evidence to support the trial court’s conclusion that Capital

Plus was entitled to possession of the property.

1. Standard of Review
Evidence is legally insufficient to support a finding when: (1) the record bears

no evidence of a vital fact; (2) the court is barred by rules of law or of evidence from

giving weight to the only evidence offered to prove a vital fact; (3) the evidence

offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence

conclusively establishes the opposite of a vital fact. Shields, 526 S.W.3d at 480; see

also Howard, 2020 WL 3786215, at *4. When determining whether legally

sufficient evidence supports a finding, an appellate court must consider evidence

favorable to the finding if the factfinder could reasonably do so and disregard

evidence contrary to the finding unless a reasonable factfinder could not. Shields,

526 S.W.3d at 480; see also Howard, 2020 WL 3786215, at *4.

2. Applicable Law

To establish a superior right to immediate possession, the person entitled to

possession has the burden to prove: (1) it owns the property; (2) the person who

refuses to surrender possession is a tenant at will, tenant at sufferance, or a tenant or

subtenant willfully holding over after the termination of the tenant’s right of

possession; (3) the person entitled to possession gave proper notice to vacate the

premises to the person refusing to surrender possession; and (4) the person refusing

–15–
to surrender possession refused to vacate the premises. PROP. § 24.002; Shields, 526

S.W.3d at 478; see also Howard, 2020 WL 3786215, at *2.

3. Application of the Law to the Facts
We construe the Luas’ arguments to challenge the sufficiency of the evidence

to support the following findings of fact made by the county court:

1. The [county] [c]ourt [finds] that Capital Plus [] is a limited
liability company in the State of Texas that is the current owner
of “the property”. . . .
....

3. The [county] [c]ourt [finds] that Capital Plus [] is the owner
through the [] trustee’s deed dated December 4, 2018 after a non-
judicial foreclosure was held on the first Tuesday of the Month,
here, December 4, 2018, and the purchaser and current owner is
Capital Plus [], and said [] Trustee’s Deed is filed under
Instrument 201800316976, Dallas County Real Property
Records on December 4, 2018, and which Instrument was
admitted into evidence without objection.
4. The [county] [c]ourt [finds] that [the Luas] do not currently have
a leasehold in the property.

5. The [county] [c]ourt [finds] that through the Deed of Trust
executed by the [Luas] and filed of record in Instrument
201700059077, on February 28, 2017, Dallas County Real
Property records, and the [county] [c]ourt [finds] in Paragraph 22
of that Instrument that the [Luas] are the borrowers under the
deed of trust and the [Luas] are tenants at sufferance that may be
removed from the property by a writ of possession if the property
was sold according to the material terms of the deed of trust.

First, we address the Luas’ argument that there is no evidence to show the

trustee’s deed is entitled to a presumption of validity and, therefore, it cannot be

considered as evidence of Capital Plus’s superior right to possession. The trustee’s

–16–
deed was admitted into evidence without objection. The trustee’s deed states that

“[n]otices stating the time, place and terms of the sale of the property were posted

and filed, as shown by the affidavit attached to this deed and incorporated in it by

this reference.”

In support of their argument, the Luas rely solely on Sauceda v. GMAC

Mortgage Corp., 268 S.W.3d 135 (Tex. App.—Corpus Christi–Edinburg 2008, no

pet.). But Sauceda concerned a suit for wrongful foreclosure, one element of which

is proof of a defect in the foreclosure-sale proceedings. See id. at 136, 139. As noted

above, defects in the foreclosure process are not relevant in a forcible-detainer

action. Howard, 2020 WL 3786215, at *3; see also Rosalez, 2021 WL 1918755, at

*3; Enriquez v. Capital Plus Fin., L.L.C., No. 02-19-00184-CV, 2020 WL 719441,

at *2 (Tex. App.—Fort Worth Feb. 13, 2020, no pet.) (mem. op.). Viewing the

evidence in the light most favorable to Capital Plus, we conclude the evidence is

sufficient to demonstrate Capital Plus’s superior right to possession.

Second, we address the Luas’ argument that there is no evidence to show

Capital Plus owns the property or had privity with the Luas that would allow Capital

Plus to use the deed’s tenancy-at-sufferance clause to dispossess them of the

property. Relying on § 51.002 of the Texas Property Code, they claim Capital Plus

failed to introduce evidence of authority to make presuit demand. See PROP.

§ 51.002.

–17–
However, § 51.002 is not applicable to this case. That section addresses the

required notice of a foreclosure sale to be provided to the debtor prior to sale. See

id. Whether the sale of property under a deed of trust is invalid may not be

determined in a forcible-detainer action. See Greunke v. Beal Bank, SSB, No. 12-

19-00266-CV, 2020 WL 2177235, at *1 (Tex. App.—Tyler May 6, 2020, no pet.)

(mem. op.).

The record shows there was evidence that the Luas executed a deed of trust to

secure payment of an extension of credit concerning the property. After the Luas’

default, the mortgage-servicer-initiated foreclosure proceedings and the trustee’s

deed show that Capital Plus acquired the property at a non-judicial foreclosure sale,

making Capital Plus the rightful owner. Capital Plus was not required to establish

privity of contract with the Luas in relation to the deed of trust. See Rosalez, 2021

WL 1918755, at *4. It is sufficient that the trustee’s deed shows that Capital Plus

purchased the subject property at a foreclosure sale and acquired the right to enforce

the tenancy-at-sufferance clause in the deed of trust. See id. And, in this case, the

trustee’s deed gave Capital Plus a right to enforce the tenancy-at-sufferance clause

against the Luas. Viewing the evidence in the light most favorable to Capital Plus,

we conclude the evidence is sufficient to demonstrate Capital Plus’s ownership of

the property. See Howard, 2020 WL 3786215, at *4.

–18–
Third, we address the Luas’ argument that there is no evidence of their

continued occupancy of the subject property. We construe the Luas’ argument to

challenge the following finding of fact by the county court:

5. [T]he [county] [c]ourt [finds that . . . the [Luas] are tenants at
sufferance that may be removed from the property by writ of
possession.

The record on appeal shows Capital Plus sent notice to the Luas demanding they

vacate the property and its attorney swore to the petition for eviction. In addition,

the record shows that, at the conclusion of the trial, the county court judge and

counsel for both parties discussed the amount of time Capital Plus would agree to

give the Luas to vacate the property and the amount of a monthly bond in the event

the Luas appealed the county court’s judgment. In fact, counsel for the Luas

challenged the proposed amount of the bond as being greater than the mortgage

payment and was successful in getting the amount reduced. Further, the fact that the

Luas appealed the justice court judgment depriving them of possession is some

evidence that they were in possession of the property at the time of the county-court

trial and had refused to vacate it as demanded by Capital Plus. See Rosalez, 2021

WL 1918755, at *4. Viewing the evidence in the light most favorable to Capital

Plus, we conclude the evidence is sufficient to demonstrate the Luas’ continued

occupancy of the property.

Finally, we construe the Luas’ argument to challenge the following conclusion

of law by the county court:

–19–
3. The [county] [c]ourt [concludes] that possession of the property
should be granted to [Capital Plus] and [has] executed a written
judgment stating [the] same.

The trial court’s findings of fact and the evidence at trial support this challenged

conclusion of law.

For all the foregoing reasons, we conclude there was legally sufficient

evidence to support the county court’s judgment and the county court did not err

when it concluded Capital Plus was entitled to possession of the property.

The second part of issues three through five are decided against the Luas.

V. CONCLUSION
We affirm the county court’s final judgment.

/Leslie Osborne//
191227f.p05 LESLIE OSBORNE
JUSTICE

–20–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

RODOLFO ESPINOSA LUA AND On Appeal from the County Court at
ANEL LUA, Appellants Law No. 3, Dallas County, Texas
Trial Court Cause No. CC-19-02051-
No. 05-19-01227-CV V. C.
Opinion delivered by Justice
CAPITAL PLUS FINANCIAL, Osborne. Justices Pedersen, III and
LLC, Appellee Nowell participating.

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

It is ORDERED that appellee CAPITAL PLUS FINANCIAL, LLC recover
its costs of this appeal and the full amount of the trial court’s judgment from
appellants RODOLFO ESPINOSA LUA and ANEL LUA and from the cash deposit
in lieu of supersedeas bond.

After the judgment and all costs have been paid, we DIRECT the clerk of the
county court to release the balance, if any, of the cash deposit in lieu of supersedeas
bond to appellants RODOLFO ESPINOSA LUA and ANEL LUA.

Judgment entered this 26th day of May, 2022.

–21–

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