Federal Bankruptcy Judge Lopez: I Don’t Read Words Into Statutes. I Read What They Say and I Follow It

TO THE HONORABLE JUDGE, AND ALL INTERESTED PARTIES:

INTRODUCTION & NECESSITY OF SURREPLY

The Texas Supreme Court has long held that foreclosure sales conducted after the expiration of the statute of limitations—whether judicial or nonjudicial—are void and may be enjoined.

In Jolly v. Fidelity Union Trust Co., 118 Tex. 58, 67-68 (Tex. 1927), the Court explicitly ruled that such sales, conducted after the limitations period has expired, are legally invalid.

Defendants reply brief asserts the expiration of the foreclosure judgment does not bar foreclosure, and they rely upon the federal court’s deficient and void 2018 judgment to extend the limitations period indefinitely.

These arguments are fundamentally flawed under Texas law.

The Plaintiff respectfully submits this surreply in response to the Defendants’ newly raised arguments which were not addressed in the original briefing, seeking leave of the court.

See Drew v. McGriff Ins. Servs., Civil Action 4:22-cv-3340, Doc. 45 at *1 (S.D. Tex. Mar. 13, 2024).

As shown below, Defendants’ reliance on the deficient 2018 judgment as a valid basis for foreclosure after the limitations period has expired is without merit.

This surreply will demonstrate that the 2018 judgment is void (DMSJ, Doc. 27, Aug. 5, 2024; Exhibit B; EXHIBIT DB2-MSJ) and that the foreclosure attempt is barred by the statute of limitations.

Defendants also continue to invoke res judicata to bar Plaintiff’s claims, despite the clear fact that the issues in this case—namely, the validity of a post-judgment foreclosure sale and the statute of limitations on such a sale—are not precluded by prior litigation.

In fact, Defendants’ reliance on res judicata is contradicted by their own cited case law, specifically Maluski v. Rushmore Loan Mgmt. Servs., LLC, No. 14-17-00233-CV (Tex. App. Oct. 4, 2018), which explicitly rejected the application of res judicata to claims regarding the statute of limitations on foreclosure when such claims were not litigated in prior actions.

Moreover, the judgment upon which Defendants base their res judicata argument is void, further invalidating their claim that Plaintiff’s current suit is barred.

Defendants’ insistence on applying res judicata here constitutes a frivolous and legally indefensible argument, designed to mislead the Court and prevent Plaintiff from asserting valid claims based on new facts and legal issues arising after the prior judgments.

DETAILED LEGAL ANALYSIS & ARGUMENT

1. Texas Law Governs Foreclosure Limitations Periods

The Defendants’ core argument—that a foreclosure sale can proceed after the expiration of the statute of limitations—misinterprets Texas law.

As outlined in Jolly, the Texas Supreme Court has established that foreclosure actions, including sales under the power of sale, are governed by the statute of limitations, which is strictly enforced.

Once the limitations period expires, the right to foreclose is extinguished, and any foreclosure sale conducted thereafter is void.

This rule is particularly relevant here, as the debt was accelerated in 2011, yet no foreclosure occurred within the 4-year period prescribed by Texas Civil Practice & Remedies Code § 16.035.

As the Plaintiff will explain, any foreclosure attempt outside of this timeframe is legally invalid.

2. The Defendants’ Misinterpretation of the 2018 Judgment

The Defendants assert that the 2018 federal court judgment extends the foreclosure timeline, citing a ten-year renewable enforcement period for federal judgments.

However, the 2018 judgment does not cure the defect of an expired limitations period, as foreclosure actions related to real property are governed by Texas law, which provides a strict 4-year period.

As set forth in Jolly and subsequent cases, the expiration of the limitations period invalidates the foreclosure right, regardless of any subsequent judgment or federal ruling.

Furthermore, the Defendants’ argument to “reduce[d] the foreclosure to judgment” is flawed because the loan in question is constitutionally protected.

The Texas Constitution treats a home equity loan as in rem, not in personam, meaning there is no personal liability against the property owner.

As noted in the Plaintiff’s Deed of Trust, the “Borrower understands that Section 50(a)(6)(C), Article XVI of the Texas Constitution provides the Note is given without personal liability against each owner of the property” (Deed of Trust, p. 15 of 18, at 24 (2011 (Case 4:11-cv-01658, Document 1, Exhibit B, filed 04/29/11)), reinforcing the in rem nature of the loan and foreclosure.

As discussed herein and generally, the 2018 judgment is itself defective, as it fails to meet the procedural requirements under Texas law for foreclosure actions involving homestead property.

The federal court failed to properly apply Texas’ constitutional protections, which render the judgment void.

3. The 4-Year Foreclosure Limitations Period Under Texas Law

Defendants’ argument that a foreclosure judgment can be enforced for up to ten years under Texas law (pursuant to Section 34.001) is erroneous.

While personal judgments for monetary relief can be renewed or extended, foreclosure of real property is governed by a stricter 4-year limitations period, as set forth in Section 16.035.

This distinction is critical: while a writ of execution may be issued to enforce a personal judgment (which is a claim for monetary relief), the power of sale in a deed of trust—the mechanism for foreclosure—relates specifically to real property and is subject to the 4-year period under Section 16.035.

Therefore, any attempt to foreclose after the 4-year period is void, regardless of whether a writ of execution is issued for personal debt (Tex. Civ. Prac. & Rem. Code § 16.035).

Additionally, Defendants’ reliance on Section 34.001(a) is further misplaced because the statute does not apply to homesteads.

As the court in Porterfield clarified, judgment liens do not attach to a homestead.

The court held that “a properly recorded and indexed abstract of judgment will only attach to a judgment debtor’s non-exempt property” and that

“a judgment lien… cannot attach to a homestead” while the property remains the debtor’s homestead

(Porterfield v. Deutsche Bank Nat’l Tr. Co., No. 04-20-00151-CV, at *13, Tex. App. Oct. 27, 2021, citing Wilcox v. Marriott, 103 S.W.3d 469, 473 (Tex. App.-San Antonio 2003, pet. denied)).

4. The Invalidity of the 2018 Judgment and the Impact on Foreclosure

The Plaintiff asserts that the 2018 judgment is void due to its failure to comply with Texas law. Specifically, the judgment fails to meet the necessary procedural and substantive requirements for a valid foreclosure order under Texas constitutional and procedural law.

Since the judgment was issued in a federal court proceeding that did not follow the proper Texas procedures, any foreclosure attempt based on this judgment lacks a legal foundation.

As relevant to these proceedings, DBNTCO’s original complaint in 2011 (Case 4:11-cv-01658, Document 1, filed 04/29/11) sought, at paragraph 10,

“Pursuant to Rule 735(2), Deutsche hereby files this suit seeking a final judgment which includes a declaration allowing Deutsche, directly or through its mortgage servicer, to conduct a non-judicial foreclosure sale”.

See also final judgment, including order of foreclosure, in Deutsche Bank National Trust Company, as Trustee for Fremont Home Loan Trust 2002-2, Asset-Backed Certificates, Series 2002-2 v. Freeman, Case 4:22-cv-03146, Doc. 13 (5/5/2023).

Further, paragraph 12 of the same filing states,

“Pleading further, and in the alternative, Deutsche sues for judicial foreclosure of the Deed of Trust and sale of the Property at a judicial foreclosure sale, pursuant to Rule 735(1) of the Texas Rules of Civil Procedure.”

In alignment with Rule 309 of the Texas Rules of Civil Procedure, DBNTCO sought a judicial judgment for foreclosure, once more relying upon the terms of the Deed of Trust.

This is further substantiated by comparing Judge Hittner’s orders in Burke with Maldonado v. CitiMortgage, Inc., 4:15-cv-00120 (S.D. Tex.),

and where his final judgment was affirmed on appeal to the Fifth Circuit (Maldonado v. CitiMortgage, Inc., No. 16-20541, at *4 (5th Cir. Jan. 23, 2017));

Holcomb v. Specialized Loan Servicing, LLC, No. 3:21-cv-00210, 2024 Dist. LEXIS 161326 (S.D. Tex. Sept. 9, 2024) (same),

and;

Cloward v. U.S. Bank Tr., No. 05-18-01397-CV, at *6-8 (Tex. App. Aug. 3, 2020), which provides an in-depth analysis of the applicable law and proper procedures for foreclosure.

5. Strict Constitutional Protections for Plaintiff’s Homestead Property

Texas law offers stringent protections for homestead property under Article XVI, Section 50 of the Texas Constitution.

These protections severely restrict the ability to foreclose on a debtor’s homestead, and any foreclosure attempt that does not comply with these constitutional protections is void.

The 2018 judgment does not properly address these constitutional safeguards and, as such, cannot serve as the basis for a valid foreclosure action.

As detailed in Plaintiff’s complaint and subsequent pleadings, including the comparison of Judge Hittner’s orders, the 2018 judgment fails to meet the specific procedural requirements outlined in Texas law, which are essential for a valid foreclosure judgment.

Notably, when foreclosure involves home equity loans, as in this case, it must comply with Article XVI, Section 50, which mandates that foreclosure cannot proceed without a court order.

Wherefore, when foreclosure is expedited under Rule 736 or any related federal court request for a foreclosure order (such as the 2018 judgment), it must mirror the procedural requirements established by the Texas Supreme Court.

These safeguards are designed to protect the homeowner’s rights throughout the process. In the recent and erroneous opinion cited by Defendants in Holcomb, Magistrate Judge Andrew Edison references the Fifth Circuit’s opinion in Maldonado at 4, which underscores the importance of adhering to these procedural requirements in judicial foreclosure cases.

While Maldonado specifically addresses judicial foreclosure under Rule 309, the procedural safeguards outlined in that opinion apply equally to both non-judicial and judicial foreclosures, as demonstrated in Holcomb’s final judgment (Doc. 44, Sept. 16, 2024), where the judgment included provisions for both non-judicial and judicial foreclosure.

6. Bankruptcy Judge Lopez vs. U.S. District Judge Eskridge’s Statutory interpretation of Section 16.035

In the Strange proceedings referenced by Defendants, U.S. District Judge Charles Eskridge misinterpreted Texas Civil Practice and Remedies Code Section 16.035 by suggesting that a party could either file a lawsuit or conduct a foreclosure sale within the 4-year statute of limitations.

This “either/or” interpretation is fundamentally at odds with the plain text of the statute, which explicitly requires that the foreclosure sale itself must occur within the 4-year period, not merely the filing of a lawsuit.

In contrast, Bankruptcy Judge Christopher Lopez, in a related bankruptcy case In re Robert F. Strange Jr., Case No. 23-32598-13 (Transcript of hearing, Sept. 7, 2023, p. 30), correctly emphasized that courts must adhere to the statute’s plain language, without adding presumptions or making unwarranted inferences.

As Judge Lopez stated,

“I don’t read words into statutes… I read what they say and I follow it.”

This interpretation aligns with the unambiguous language of Section 16.035, which clearly mandates that the foreclosure sale itself must occur within the 4-year period.

The filing of a lawsuit, as required in this case, does not extend the time for conducting a foreclosure sale.

Judge Eskridge’s “either/or” interpretation is inconsistent with both the plain text of Section 16.035, 16.036 and established Texas law, which has long held that nonjudicial foreclosures can be extended by recorded affidavits, either ex-parte or with the agreement of the parties.

See; Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 567 (Tex. 2001) (This four-year limitations period can be suspended by filing a written agreement in the county clerk’s office where the real property is located. Tex. Civ. Prac. Rem. Code § 16.036.”)

Moreover, the reasoning by state appellate Justice Molberg in Cloward, at 11 further clarifies that judicial and nonjudicial remedies can be pursued simultaneously within the 4-year limitations period to avoid being time-barred.

Thus, federal Judge Eskridge’s reliance on the flawed “either/or” argument—especially in the context of foreclosure—is both legally incorrect and inconsistent with Texas statutory law.

The correct statutory interpretation, as bankruptcy Judge Lopez aptly observed, aligns with well-established Fifth Circuit principles governing statutory construction.

The Fifth Circuit has repeatedly emphasized that courts must strictly adhere to the plain text of statutes, avoiding the imposition of extraneous terms or interpretations.

Judge Lopez’s approach, which avoids presumptions and enforces the statute’s plain meaning, exemplifies a correct application of both Texas law and the fundamental principles of federal statutory interpretation, which are critical when interpreting statutes like Section 16.035.

7. Defendants’ Missed Deadline and Outrageous Attempt to Circumvent Texas Law: A Rebuttal to PNC v. Howard

The Defendants’ reliance on a strict “either/or” approach to the 4-year foreclosure limitations period ignores a critical provision in Section 16.035 of the Texas Civil Practice and Remedies Code.

The legislature specifically provided a mechanism for extending the non-judicial foreclosure period beyond the 4-year mark by allowing the renewal of foreclosure actions through the filing of an affidavit, either ex-parte or with the consent of the parties.

See Wolf; Tex. Civ. Prac. Rem. Code § 16.036.

This legislative provision clearly accommodates extensions to the foreclosure process, making Defendants’ argument that the 10-year period applies to foreclosure actions, and that the affidavit requirement can be ignored, legally unsound.

However, Defendants failed to meet this statutory requirement—they missed the deadline and failed to file the necessary affidavit to renew the foreclosure proceedings.

The Defendants omission is not an innocent mistake.

They knowingly bypassed acknowledging this statutory process, which was designed to ensure fairness and compliance with the law.

Instead, they attempt to circumvent the law by asserting a position that was clearly rejected in the case of PNC Mortgage v. Howard, 668 S.W.3d 644 (Tex. 2023), where the Texas Supreme Court and Texas Court of Appeals both rejected similar claims as outrageous.

In that case, Defendants’ counsel Mark Hopkins (who also represents Defendants in this matter) argued a position that was swiftly rebuffed by the courts, with Justice Blacklock questioning the rationale:

“…that rationale means people shouldn’t ever get out from their debt…why should the court give the lender rights it didn’t bargain for to get paid?”

This rhetorical question highlights the absurdity of the Defendants’ position in the present case: their failure to timely renew the foreclosure by affidavit should not entitle them to an unfair advantage that the law does not provide.

In fact, PNC’s counsel Lembke even admitted to the Texas Supreme Court that such a position would be absurd, acknowledging that lenders are not entitled to more rights than they bargained for under Texas law.

The PNC case was also centered on the statute of limitations under Section 16.035, which governs the timing of foreclosure actions, and both the Texas Court of Appeals and the Texas Supreme Court rejected the type of claim that Defendants now advance.

Defendants’ insistence on pursuing a foreclosure after missing the statutory deadline and failing to file the required affidavit is nothing short of outrageous.

This argument, based on an incorrect interpretation of the law, should be rejected in its entirety.

The legislature has already provided a mechanism for renewing non-judicial foreclosures through the filing of an affidavit, which Defendants failed to utilize in this case.

They cannot now claim entitlement to a foreclosure sale when they have blatantly ignored the statutory process set forth by the legislature.

In light of the PNC v. Howard case and the Defendants’ clear knowledge of the statutory requirements, their arguments are nothing less than an attempt to exploit procedural gaps in a way that is not only legally indefensible but also morally suspect.

The Court should reject Defendants’ claims and hold them accountable for their failure to follow the clear and unambiguous statutory framework that governs foreclosure actions in Texas.

RESPONSE TO DEFENDANT’S RES JUDICATA ARGUMENT

Defendants’ res judicata argument is legally flawed and contrary to both Texas case law and the well-established rule that res judicata does not apply to void judgments.

The Maluski case cited by Defendants actually undermines their position, as it explicitly rejected the application of res judicata to claims involving the statute of limitations on foreclosure when the issue was not litigated in prior actions.

Furthermore, res judicata does not apply to void judgments, as established in Tyler Bank & Trust Co. v. Shaw, 293 S.W.2d 797 (Tex. Civ. App. 1956).

Since the judgment at issue here is void, Defendants’ reliance on res judicata is legally indefensible.

DECLARATION

Pursuant to Texas Civil Practice and Remedies Code Section 132.001 and “In lieu of a sworn affidavit, a litigant may submit an unsworn declaration as evidence against summary judgment.

See 28 U.S.C. §1746.”, I hereby provide my unsworn declaration. My name.., and I declare under penalty of perjury that all information herein is true and correct.

CONCLUSION

For the reasons outlined above, the Plaintiff requests that the Court reject the Defendants’ new arguments in their reply brief and affirm that any foreclosure attempts beyond the 4-year limitations period are void.

The 2018 judgment is not a valid basis for foreclosure, and the Plaintiff’s claims are supported by both Texas statute and case law.

Defendants’ reliance on res judicata is deliberately flawed, and their continued pursuit of this argument constitutes a frivolous and knowingly malicious response.

Their citation of Maluski—a case which explicitly rejects the application of res judicata to similar circumstances—demonstrates their willful disregard of controlling legal principles.

Moreover, the judgment in question is void, further invalidating Defendants’ res judicata argument.

The Plaintiff respectfully requests that the Court reject Defendants’ argument in its entirety as legally baseless.

The order of foreclosure (DMSJ, Doc. 27, Aug. 5, 2024; Exhibit B; EXHIBIT DB2-MSJ) and power of sale has expired, and the lien is void.

To the extent this court maintains the opinion it has jurisdiction in these proceedings, the Motion for Summary Judgment should be DENIED.

RESPECTFULLY submitted this 11th day of November, 2024.

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, PHH Mortgage Corporation (“Defendant” or “PHH”) files this Reply to Plaintiff’s Response [Doc. 35] to PHH’s Motion for Summary Judgment. [Doc. 27]. In support thereof, PHH respectfully shows the Court as follows:

I.   SUMMARY OF REPLY

1.                  Plaintiff Joanna Burke (“Burke” or “Plaintiff”) continues her pattern of misconstruing facts and law in her Response to PHH Mortgage Corporation’s Motion for Summary Judgment.

In short, Burke asserts even though DBNTC1 obtained a judgment authorizing foreclosure in 2018, DBNTC (and PHH as the mortgage servicer) have now waited too long to enforce that judgment.

As such, when PHH attempted to foreclose the deed of trust lien in late 2023 and early 2024 (pursuant to the 2018 judgment), PHH’s actions were “time-barred.”

See, Plaintiff’s Response to Summary Judgment. [Doc. 34, p. 4].

This is incorrect.

2.                  Burke appears to now hinge her entire lawsuit on her belief that the statute of limitations set out in Texas Civil Practice and Remedies Code section 16.035 (addressing the foreclosure of contractual liens) works to now bar PHH’s foreclosure action.

1 Deutsche Bank National Trust Company, the mortgagee for whom PHH services the mortgage.

According to Burke, PHH’s supposedly time-barred actions expose PHH to claims of abuse of process, fraud, civil conspiracy, intentional infliction of emotional distress, violation of the Texas Debt Collection Practices Act, violation of the Texas Constitution Bill of Rights, elder abuse, and declaratory relief. Burke’s reading of section 16.035 is errant.

As explained by the Fifth Circuit less than 30 days ago, a lender in complying with section 16.035 is only required to file suit within the four-year limitations period, not also execute on any resulting judgment within that same time period.

See Couch v. Bank of New York Mellon, Case No. 24-10297, 2024 U.S. App. LEXIS 25701 (5th Cir. Oct. 11, 2024).

3.                  The remainder of Burke’s response and her live Complaint is mostly a re-hashing of events that have transpired during the past 14 years.

Those events have been the topic of repeated lawsuits filed by Burke as outlined in PHH’s Motion.

Finality has been obtained in each of those prior actions, the result being that res judicata prohibits Burke from again trying to litigate matters that have been judicially resolved.

To the extent Burke now attempts to escape the application of res judicata by asserting as her basis PHH’s recent conduct (in posting the property for foreclosure) taken after the last judgment was entered, her new argument fails.

II.    ARGUMENTS AND AUTHORITIES

A.                Foreclosure is Not Time Barred.

4.                  Section 16.035(a) of the Texas Civil Practice and Remedies Code provides that a “person must bring suit for the recovery of real property under a real property lien or the foreclosure of a real property lien not later than four years after the day the cause of action accrues.”

Tex. Civ. Prac. & Rem. Code § 16.035(a).

For this reason, once a lender accelerates a mortgage loan, any suit necessary to enforce the related deed of trust should be filed within four years of acceleration of the debt upon fear of bar.

DBNTC filed its foreclosure action within four years of accelerating the loan.

Section 34.001(a) of the Texas Civil Practice & Remedies Code provides that “[i]f a writ of execution is not issued within 10 years after the rendition of a judgment of a court of record or a justice court, the judgment is dormant and execution may not be issued on the judgment unless it is revived.”

Tex. Civ. Prac. & Rem. Code § 34.001(a).

Therefore, once DBNTC reduced the foreclosure to judgment, that foreclosure judgment must be executed on within 10 years or it is dormant (unless revived).

See Tex. Civ. Prac. & Rem. Code §34.001.

5.                  Section 16.035(b) of the Texas Civil Practice and Remedies Code addresses something slightly different.

This section addresses a lender’s need to conduct a foreclosure sale within four years of when the cause of action accrues.

Tex. Civ. Prac. & Rem. Code §16.035(b).

Section 16.035(b) states that a “sale of real property under a power of sale in a mortgage or deed of trust that creates a real property lien must be made not later than four years after the day the cause of action accrues.”

Id. §16.035(b).

6.                  Borrowers like Burke have routinely argued that a lender must comply with both Tex. Civ. Prac. & Rem. Code §§16.035(a) and (b), meaning that a lender must not only file suit within four years of acceleration but also conduct any resulting foreclosure sale within the same time period.

In Burke’s own words, “the order of foreclosure has expired, along with the power of sale, rendering the lien void under Texas law.”

Plaintiff’s Response to Summary Judgment.

[Doc. 34, p. 4].

However, this is incorrect.

7.                  Based upon her allegation that limitations has expired to conduct foreclosure, Burke attributes each of her causes of action in this litigation to the allegedly untimely conduct of PHH, stating:

a.       “Plaintiff is not responsible for Defendants failure to timely prosecute and execute the now expired judgement on behalf of DBNTCO.”

Id. at 2;

b.      PHH’s action is a “premeditated fraudulent scheme to auction and sell Plaintiff’s homestead admittedly and knowingly relying upon an expired judgment and time-barred power of sale…”

Id. at 4;

c.       Regarding the crux of Burke’s conspiracy claim, Burke asserts “these foreclosure attempts were time-barred, a fact Defendants were aware of when issue the first illegal notice of foreclosure…’

Id. at 4;

d.      Regarding Burke’s abuse of process claim, Burke asserts “The Defendants’ actions constitute an illegal and improper use of legal process, as they relied on a time-barred deficient judgment to initiate foreclosure proceedings.

Id. at 9;

e.       Regarding Burke’s clam for fraud, Burke asserts, “The Defendants initiated nonjudicial foreclosures that were time-barred and base on a deficient foreclosure order…”

Id. at 12;

f.        Regarding Burke’s TDCA claim, Burke asserts, “[t]hreatening foreclosure without the right to do is actionable under the TDCAs. Here, Defendants lacked the right to foreclose due to the statute of limitations and the expired judgment discussed throughout this response.”

Id. at 15;

g.      Regarding Burke’s quiet title claim, Burke asserts, “the claim [of DBNTC] is invalid because the judgment of foreclosure was issued over four years ago… thus making it time-barred and the power of sale expired.”

Id. at 17.

8.                  As much as Burke would like otherwise, the Fifth Circuit has specifically rejected Burke’s argument.

The Court examined and rejected the argument that a mortgagee is required to comply with both sections (a) and (b) of Tex. Civ. Prac. & Rem. Code §16.035 (by filing suit to foreclose and then foreclosing within the same four years.

In Couch v. Bank of New York Mellon, the Fifth Circuit held:

The Couches contend that §16.035(a) and (b) require mortgagees to file suit and sell within four years to preserve the lien.

Texas courts disagree.

Section 16.035(a) “does not require that the actual foreclosure occur within the four-year limitation period, but rather requires only that the party seeking foreclosure ‘bring suit … not later than four years after the day the cause of action accrues.’”

Slay v. Nationstar Mortg., L.L.C., No. 2-09-052- CV, 2010 Tex. App. LEXIS 1365, (Tex. App.—Fort Worth Feb. 25, 2010, pet. denied) (emphasis added) (quoting § 16.035(a)). Couch, 2024 U.S. App. LEXIS 25701 (emp. in the orig.).

9.                  In line with the Fifth Circuit’s reasoning, this Court also specifically rejected Burke’s argument.

Less than two months ago, the Court held in Holcomb v. Specialized Loan Servicing, LLC:

The Holcombs take the position that, to be timely, a foreclosure sale had to occur within four years of the entry of the August 2013 Judgment.

This is simply not the law.

To the contrary, it is well-settled that so long as a party seeking foreclosure brings an action within the four-year limitations period, “the plain language of section 16.035(a) does not require that the actual foreclosure occur within the four-year limitations period.”

Metcalf v. Wilmington Sav. Fund Soc’y, FSB, No. 03-16-007950-cv, 2017 Tex. App. LEXIS 2627 (Tex. App.—Austin Mar. 29, 2017, pet. denied).

Holcomb v. Specialized Loan Servicing, LLC; No. 3:21-cv-00210; 2024 Dist. LEXIS 161326 (S.D. Tex. Sept. 9, 2024)

( noting that a number of other courts have followed this line of reasoning)(emp. added);

also see Maluski v. Rushmore Loan Mgmt. Servs., LLC, Case No. 14-17-00233-CV; 2018 Tex. App. LEXIS 8092)(Tex. App.—Houston [14th Dist.] Oct. 4, 2018)(same).

10.              Holcomb went on to state that simply because a mortgagee meets the limitations period by filing suit within four years per Tex. Civ. Prac. & Rem. Code §16.035(a), that does not mean mortgagee can wait an indiscriminate amount of time to conduct a foreclosure sale followingthe entry of a judgment. In recognizing the distinction between meeting limitations by filing a suit compared to the period within which a party can execute on a judgment, the Court explained,

This is not to say, however, that a lender can obtain a final judgment authorizing non-judicial foreclosure and wait an indeterminate period of time before actually foreclosing.

Rather, once a final judgment has issued, the lender has 10 years to execute the judgment before it becomes dormant.

See Tex. Civ. Prac. & Rem. Code Ann. § 34.001;

see also Cox v. Nelson, 223 S.W.2d 84, 85 (Tex. App.—Texarkana 1949, writ ref’d)

(permitting foreclosure of judgment lien against real property where writ of execution did not issue for more than nine years—but still within 10 years—after judgment was issued).

LIT DEED OF TRUST DOES NOT PERMIT THIS…

Holcomb, 2024 Dist. LEXIS 161326 at *n.4;

also see Strange v. Deutsche Bank Nat’l Trust Co., No. 4:21-cv-03298, U.S. Dist. LEXIS 53968 (S.D. Tex. Mar. 25, 2022)(foreclosure sale noticed seven years after entry of final judgment deemed timely).

11.              The Fifth Circuit and this District have both expressly rejected Burke’s very contention, that a mortgagee must both file suit and conduct a foreclosure sale within four years of acceleration.

“This is simply not the law.”

See Holcomb, 2024 Dist. LEXIS 161326 at *6; Couch, 2024 U.S. App. LEXIS 25701.

Burke’s arguments are thus insufficient to deny PHH’s Motion.

B.                 Res Judicata Bars Burke’s Suit.

12.              The remainder of Burke’s response and her live Complaint is mostly a re-hashing of events that have transpired during the past 14 years.

Those events have been the topic of repeated lawsuits filed by Burke as outlined in PHH’s Motion.

PHH obtained finality in each of those prior actions, and res judicata prohibits Burke from again trying to litigate matters that have been judicially resolved.

13.              The crux of the doctrine of res judicata is that “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”

Oreck Direct, LLC v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009).

For a claim to be barred on res judicata grounds, the Fifth Circuit requires that:

(1) the parties are identical or in privity;

(2) the judgment in the prior action was rendered by a court of competent jurisdiction;

(3) the prior action was concluded by a final judgment on the merits;

and

(4) the same claim or cause of action was involved in both actions.

Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005);

see also Ambroise v. U.S. Bank Trust N.A., No. 4:23-cv-04130, 2024 U.S. Dist. LEXIS 165018 (S.D. Tex. Sept. 13, 2024);

Rodriguez v. Lehman XS Trust Mortg. Pass-Through Certificates Series 2006-19, No. 4:22-cv-00506, 2024 U.S. Dist. LEXIS 172846 (N.D. Tex. Sept. 4, 2024).

14.              In her response, Burke seeks to get around res judicata by arguing that an alleged “void judgment” means that res judicata was not invoked.

As much as Burke wants to believe otherwise, there is no void judgment and res judicata thus applies herein.

There is simply no room to dispute that:

(1) the parties (the Burkes and the mortgagee and mortgage servicers) have been the same or in privity in all of Burke’s suits,

(2) the courts (federal district and appellate courts) in the prior suits were all courts of competent jurisdiction,

(3) final judgments were rendered in all prior suits (no case remains pending except this instant case),

and

(4) all prior suits involved Burke’s efforts to avoid foreclosure of the property.

This suit is barred by res judicata and should be dismissed with prejudice for the reasoning stated herein and in the motion for summary judgment.

[Doc. 27].

III.  CONCLUSION

15.              Pursuant to the reasons set out in PHH’s Motion for Summary Judgment as well as this Reply, PHH Mortgage Corporation respectfully request that the Court grant PHH’s Motion for Summary Judgment, dismissing all of Burke’s claims with prejudice and grant PHH all other relief to which it may be justly entitled.