Cammack v. Wells Fargo Bank et al
ORDER DENYING 2 Application for Writ of Prohibition. Signed by Judge Xavier Rodriguez. (wg)
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
SUSAN REBECCA CAMMACK
WELLS FARGO BANK; CHASE BANK;
BANK OF AMERICA; BANK OF NEW
Civil Action No. SA-17-CV-908-XR
On this date, the Court considered Plaintiff’s Application for Writ of Prohibition. Docket
no. 2. After careful consideration, the Court DENIES Plaintiff’s Application.
Plaintiff owns a home in Hunt, Texas, at 2165 Highway 39. It was sold via foreclosure
sale on or before September 6, 2017, to the Bank of New York Mellon (“BNYM”). BNYM filed
an eviction proceeding (forcible detainer) in Justice Court of Precinct 4 Place 1 of Kerr County,
Texas, and a hearing was set for October 5, 2017.
Plaintiff filed her Suit for Quiet Title, Trespass to Title, and Declaratory Judgment in
state district court on August 16, 2017. Plaintiff seeks declaratory relief, including a declaration
that she is the lawful owner and holder of title to the Property against all other persons.
Defendants BNYM and Bank of America (“BOA”) removed this case from the 198th
Judicial District Court of Kerr County on September 15, 2017. Docket no. 1. Defendants state
that no other named defendants have appeared in the state court action. Id. at 2. Defendants
BNYM and BOA removed on the basis of diversity jurisdiction, asserting that the amount in
controversy should be determined by the market value of the house, which is over $75,000. Id. at
On September 22, 2017, Plaintiff filed an Application for Writ of Prohibition. Docket no.
2. Plaintiff asks the Court to take judicial notice of the eviction notice and argues the Justice
Court lacks jurisdiction because Plaintiff’s state action has now been removed to federal court.
Id. at 2. Plaintiff requests the Court to issue a writ of prohibition to the Justice Court to cease and
desist from any and all actions in the pending litigation over the relevant property. Id. at 3.
In Texas, eviction actions, including forcible detainer actions, are within the exclusive
jurisdiction of the Justice of the Peace courts. TEX. PROP. CODE § 24.004(a). An action for
forcible detainer is the judicial procedure for determining the right to immediate possession of
real property. Kennedy v. Highland Hills Apartments, 905 S.W.2d 325, 326 (Tex. App.—Dallas
1995, no writ). It exists to provide a speedy, simple, and inexpensive means for settling the right
to possession of premises. Id. Forcible detainer actions developed in the context of landlordtenant disputes, and Texas courts of appeals have held that forcible detainer actions depend on
the existence of a landlord-tenant relationship. It’s the Berrys v. Edom Corner, 271 S.W.3d 765,
769 (Tex. App.—Amarillo 2008, no pet.) (citing Haith v. Drake, 596 S.W.2d 194, 196 (Tex.
App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.)).
The sole issue to be decided in a forcible detainer action is the right to possession of the
property. TEX. R. CIV. P. 746 (“In case of forcible entry or of forcible detainer under Sections
24.001-24.008, Texas Property Code, the only issue shall be as to the right to actual possession;
and the merits of the title shall not be adjudicated.”); Bittinger v. Wells Fargo, 2011 WL
4793828 (Tex. App.—Houston [14th Dist.] Oct. 11, 2011, n.p.h.). When the issue of the right to
immediate possession requires resolution of a title dispute, then the justice court lacks
jurisdiction to render a judgment for possession. Id. However, this occurs only when the
questions of title and possession are so intertwined that the issue of possession may not be
adjudicated without first determining title. Id. Appeals from forcible detainer actions are made to
county court, and perfection of such an appeal for trial de novo vacates and annuls the judgment
of the justice court. TEX. R. CIV. P. 749.
Before appearing at the October 5 hearing ordered by the Justice Court, Plaintiff filed an
original petition to try title (this lawsuit) in the 198th Judicial District Court of Kerr County.
Plaintiff now files an Application for Writ of Prohibition, asking the Court to order the Justice
Court to cease and desist in all actions in the pending litigation, including the scheduled October
The Fifth Circuit has long recognized that writs of prohibition are granted sparingly.
Miller v. Connally, 354 F.2d 206, 208 (5th Cir. 1965); In re Estelle, 516 F.2d 480, 483 (5th Cir.
1975). Such a writ is “reserved for extraordinary causes and [is] issued only when the right to
relief is clear and indisputable.” Hicks v. United States, 396 F. App’x 164, 165 (5th Cir. 2010). A
writ of prohibition is supervisory in nature and is used “to confine an inferior court to a lawful
exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to
do so.” Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943).
Under some circumstances, a federal court may review a state court record to determine
if a judgment is void. See United States v. Shepherd, 23 F.3d 923, 925 (5th Cir. 1994). A Texas
judgment is only void if “the rendering court (1) lacked jurisdiction over the party or his
property; (2) lacked jurisdiction over the subject matter of the suit; (3) lacked jurisdiction to
enter the particular judgment rendered; or (4) lacked the capacity to act as a court.” Id. at 925
n.5. However, there is no judgment to review here because the Justice Court has not even
conducted its eviction hearing.
Plaintiff alleges that the Justice Court lacks jurisdiction because of the pending action
now before this Court. Plaintiff, however, offers no specific argument as to why the Justice Court
lacks jurisdiction. Plaintiff only argues that justice “will best be serve [sic] by having this Court
to hear and decide the merits of the claims in federal court without the interference” of the
Justice Court. Docket no. 2 at 3.
Even if Plaintiff intends to assert the Justice Court lacks jurisdiction because of its
dispute over title of the property, the Court finds it inappropriate to issue a writ of prohibition.
Courts have consistently held that it is appropriate for a Justice Court to determine the right of
immediate possession without resolving the question of title. Although the “validity” of title may
be questioned through allegations of wrongful foreclosure, title passed through the non-judicial
foreclosure, thus establishing a landlord-tenant relationship and giving the bank the right to
immediate possession, even though success by a party in a wrongful foreclosure suit could
ultimately result in a different outcome regarding possession if the sale was ultimately rescinded.
See Ramey v. Bank of New York, 2010 WL 2853887 (Tex. App.—Houston [14th Dist.] July 22,
2010, no pet.) (noting that the “deed establishes a landlord-tenant relationship after a foreclosure
sale” and “[t]he relationship therefore existed when the forcible detainer action was heard and
the county court at law could determine possession without quieting title”); Dormady v. Dinero
Land & Cattle Co., 61 S.W.3d 555 (Tex. App.—San Antonio 2001, dism’d w.o.j.) (holding that
wrongful foreclosure claims did not mean that issues of title and possession were necessarily
intertwined because where deed of trust creates a tenancy, this provides a basis for determining
the right to immediate possession without resolving ultimate title); see also McGillivray v.
Countrywide Home Loans, 360 F. App’x 533 (5th Cir. 2010) (noting that, in a forcible detainer
action, a plaintiff is not required to prove title but only to show sufficient evidence of ownership
to demonstrate a superior right to immediate possession and that the substitute trustee’s deed
provides sufficient evidence of ownership and a basis for determining the right to immediate
As stated above, the October 5 hearing in the eviction proceeding in the Justice Court has
yet to take place. Plaintiff has not shown that the Justice Court lacks jurisdiction to proceed with
the eviction hearing, nor has she convinced the Court that it should issue a writ of prohibition,
which is to be granted sparingly and for extraordinary causes. This finding is further supported
by the fact that Plaintiff has an adequate remedy under Texas law to appeal any Justice Court
forcible detainer judgment to the County Court of the county in which the judgment is rendered.
For the reasons stated above, the Court DENIES Plaintiff’s Application for Writ of
Prohibition. Docket no. 2.
It is so ORDERED.
SIGNED this 2nd day of October, 2017.
UNITED STATES DISTRICT JUDGE
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