Couchin’ The Truth: Dickey and Sharon Couch Battle The Unsung Fifth Circuit’s Three Straight Faces

Under the three-panel’s theory, section (b) is rendered obsolete as they focus solely on the wording of section (a). This raises an important question: Why did the legislature take care to differentiate between the time to “bring suit” in section (a) and the time for “sale of real property under a power of sale” in section (b)?

For instance, in In re Abraham, 662 S.W.3d 541 (Tex. App. 2022), the court discusses the statute of limitations relevant to this issue. The Abraham opinion cites section 16.035 four times but notably omits any reference to section (b). This pattern is consistent across most cases we’ve examined, where the focus remains on acceleration and the initial four-year time limit to “bring suit.”

The sale of a home is an entirely separate action and should not be a primary consideration when discussing the deadline for filing a foreclosure lawsuit. In cases of default, a nonjudicial foreclosure does not necessitate the initiation of a lawsuit, as outlined in Tex. Prop. Code § 51.002.

See;  Bierwirth v. Bac Home Loans Servicing, LP, No. 03-12-00583-CV, at *2-3 (Tex. App. Feb. 20, 2014)

(“Bierwirth admits that he ceased making payments. Based on Bierwirth’s default on the loan, BAC initiated nonjudicial foreclosure proceedings under the terms of the deed of trust and in compliance with the property code. See Tex. Prop. Code § 51.002 (authorizing sale of real property after default under powers granted in deed of trust without necessity of filing suit and obtaining judgment directing foreclosure); Starcrest Trust v. Berry, 926 S.W.2d 343, 351 (Tex. App.—Austin 1996, no writ) (defining “deed of trust” as mortgage with power to sell on default).”);

See also; Farkas v. Mortg. Elec. Registration Sys., Inc., No. 11-12-00024-CV, at *3 (Tex. App. Jan. 9, 2014);

And, as the Fifth Circuit went to great lengths to explain in Burke I;

Deutsche Bank Nat’l Tr. Co. v. Burke, 655 F. App’x 251, 4-5 (5th Cir. 2016)

(“MERS assigned the Burkes’ mortgage to Deutsche Bank—the new mortgagee—by an Assignment of Deed of Trust dated January 20, 2011.

By this assignment, Deutsche Bank now held “a perfected security interest in the [Burkes’] property,”

including “the right to invoke the power of sale.” Harris Cty., 791 F.3d at 556;

see also Farkas, 737 F.3d at 342

(“Our holding in Martins permits MERS and its assigns to bring foreclosure actions under the Texas Property Code. Deutsche Bank became the mortgagee as defined under Section 51.0001(4) by valid and recorded transfer of the deed[ ] of trust and therefore was an appropriate party to initiate non-judicial foreclosure actions.”).”)

In short, the only common-sense interpretation of section 16.035 aligns with Joanna Burke’s application in her case, which exemplifies the legislative intent to separate the time for filing an action from the time allowed for sale.

Under Burke’s theory, the 2011 lawsuit initiated by DBNTCO in federal court for a declaratory judgment permitting nonjudicial foreclosure constituted the necessary filing. However, because DBNTCO had already sought to foreclose and had not abandoned that acceleration, they were bound by the four-year time limit to sell the home.

Burke applied equitable tolling to her case, noting that litigation spanned from 2011 to 2018, during which the Burkes won judgments twice, only to have them erroneously reversed by the Fifth Circuit. While the foreclosure order entered by Judge David Hittner was deficient, it was dated November 29, 2018.

Burke allowed the full four years from that date to sell the home under the “power of sale” in section (b), which the Fifth Circuit recognized in their Burke I opinion.

DBNTCO failed to act within that timeframe and is now time-barred.

LIT acknowledges recent federal opinions suggesting otherwise, including claims that a federal foreclosure order can extend the time “up to 10 years.” However, both Texas law and the Fifth Circuit’s position in Burke I prevent federal courts from adopting a conflicting stance.

During the recent PNC v. Howard case at the Texas Supreme Court, where Mark Hopkins served as second chair for PNC, all parties recognized that equity does not permit a federal court to benefit from misapplying Texas law.

In conclusion, Deutsche Bank sought a nonjudicial foreclosure but received a deficient order. They attempted to use this order to initiate a nonjudicial foreclosure after the four-year limit, thus rendering them time-barred.

Section 16.035(b) must apply, and the interplay between the request for nonjudicial foreclosure and the statute cannot be ignored; extending the order to 10 years is impermissible.

Furthermore, over a century of common law, as highlighted in the Texas Supreme Court’s 1927 opinion in Jolly v. Fidelity Union Trust Co., 118 Tex. 58, confirms that while nonjudicial foreclosures had a ten-year limit from 1905 to 1913, this was reduced to four years after July 1, 1913.

Moreover, the lender had the ability to “suspend” the four-year time limit under Tex. Civ. Prac. Rem. Code § 16.036. It is absurd to suggest that the legislature intended to create a 10-year window for nonjudicial foreclosure.

These flawed opinions have no legal foundation; they reveal a continued pattern of the federal judiciary overstepping its bounds to impose a reckless and illegal agenda, resulting in the unlawful seizure of citizens’ homes.