This article is a follow-up on a few related cases we’ve been closely monitoring over the years in both state and federal court. In particular, we discussed this case in an earlier article which you should ideally read, before embarking on digesting this published update.

Below you’ll find the following sections;

First, the ‘After’ Opinion, released on June 2, 2022, which allows the Fifth Circuit to completely delete the prior opinion (apparently) from their database. This new opinion is claimed by Judge Edith Brown Clement, apparently outed by her judicial colleagues, whom we assume are none too pleased with the embarrassment caused by first opinion.

Judge Clement, along with her concurring panel of Judges Stewart and Elrod spit out this opinion with evilness, spite and raging distaste for ‘pro se’ homeowner Mr. Lamell, but it’s also directed as a threat to any and all homeowners currently in the court system, especially those who are still litigating after the 2008 financial crisis.

The prejudice, bias and hostility bloodies the pages of the opinion(s), in appalling mischaracterizations of this homeowner, Mr. Lamell, and which will be intentionally repeated for emphasis.

Then, we follow up on this After Opinion with the ‘Before’ Opinion, as we have a copy of the now deleted April Opinion in US Bank NA v. Lamell.

Indeed, LIT assumes the Before and After opinion and how it has been viciously manipulated, may be quite shocking to read – after comparing both opinions – for those citizens who are not familiar with this bunch of Dirty Black Robed Outlaws.

Simply stated, they are evil liars, traitors to the Constitution, the Rule of Law and abuse the laws to steal homesteads from law abiding citizens of the State of Texas, and the United States of America.

Thereafter, we’ve reviewed the 5th Circuit Docket for the case and, in particular, downloaded a copy of non-prisoner Lamell’s well-articulated Petition for Panel Rehearing, without the aid of any legal counsel. LIT concurs, this is a very wise choice.

US Bank and PHH Ocwen’s counsel involved in this appeal at the lower court would be Mackie Wolf, headed by Mark Cronenwett (on paper filings, at least).

LIT suggests, based on monitoring federal court case filings, this foreclosure mill and creditor rights law firm are the #1 Foreclosure Wolves of Texas – at this time, taking over from BDF Hopkins, who were the largest foreclosure mill for a number of years, post 2008.

On appeal, the Wolves would step aside for Dykema, headed by Chris Kratovil, who was named counsel in the related case of Zepeda, which Connie Pfeiffer, then a long-term partner at Beck Redden and formerly appointed counsel for the Burkes would lose at the Texas Supreme Court. LIT is convinced, Constance Pfeiffer only lost because she called out the Fifth Circuit for reversing the Burkes victory over Deutsche Bank in a wrongful foreclosure in the Southern District Court, Houston Division.

In short form, Pfeiffer agreed with Hon. Stephen Wm Smith’s opinion, and the Burkes should have prevailed on appeal. Shortly thereafter, she would lose the cut-and-dried Zepeda decision due to the known corruption which pervades the Texas Supreme Court, and then lose her job at Beck Redden. The timing was too close together to assume anything else.

This leads us to the Howards’, a couple in North Texas who have been fighting against a wrongful foreclosure (with counsel) since the 2008 financial crisis. This case is currently being briefed at the Texas Supreme Court and is pivotal to this case and homeowners generally.

What happens in the Howard case at the highest court in Texas will, in LIT’s opinion, ultimately decide whether unsecured debt has more consumer protection than secured debt, as explained herein (watch the videos).

Of major concern to LIT is the counsel involved in this appeal, namely BDF Hopkins, Bradley, et al, all known and admitted friends of the court.

And, of course, with the latest ‘marriage’, we have the Chief Judge of the Fifth Circuit literally bedding with the Chief Justice of the Texas Supreme Court.

It is well known, Chief Judge Priscilla Owen – Richman – Hecht has been correctly vilified by the media for being pro bank and business over the people.

It also makes sense why we found it odd that Chief Justice Nathan Hecht was always at the Federalist Society meetings…now we know… and we also know why there has been an unprecedented rise in the number of Certified Questions from CA5 to the Texas Supreme Court, including the Zepeda case (uhuh).

LIT’s blog has been operating for a few years now and we’re expanding nationwide. LIT would argue it’s not so much a blog as an ever expanding dossier filled with real data and hard facts of judicial ochlocracy and corruption. This includes the legal profession itself, filled with unlicensed, unbonded and uninsured rogue, lyin’ and thievin’ lawyers. Unfortunately, to date, they are the ones who succeed because the judges are just like ’em. And they all report to Wall Street and the Banks with their weekly list of homesteads stolen.

Right now they all believe that as Judges and Lawyers, if they stick together they are ‘untouchable’. LIT agrees, the most dangerous branch, the judiciary, has a valid argument, based on historical data. However, LIT suggests that data has dramatically changed in recent times. Job security is not represented by life appointments anymore judges, and the people are restless. You’ve stolen all the affordable housing stock in America in the last decade, and now banks and private equity and investment firms (e.g.. REITS) are renting them back to people at extortionate rentals. It’s time for correction – the unlawful theft of residential homes and oppression has gone on way too long.

If y’all think that your published opinions will allow banks and nonbanks carte blanche to foreclose at any time and via anyone or entity, then think again. It will be a step too far, and we strongly believe the people will not accept such draconian laws.

Homeowners and concerned citizens, make sure to subscribe to our free newsletter and bookmark LIT, as we’ll be monitoring and updating these cases accordingly.

I.

In September 2006, Mr. Lamell mortgaged the real property located at 5131 Glenmeadow Drive, Houston, Texas 77096.

To do so, he executed a note and deed of trust, which granted a security interest in the property to Home123 Corporation (Home123).

The deed of trust initially named Mortgage Electronic Registration Systems, Inc. (MERS) as the beneficiary, as well as the nominee of Home123.

But in 2010, MERS and Home123 assigned the deed of trust to USBNA, who is the current holder of the note and beneficiary of the deed of trust.

LIT: MERS is not mentioned in the ‘after opinion’. Note, LIT is highlighting in red below, content that has been amended, altered or deleted from the ‘after opinion’ and which is very telling in itself.

In February 2010, Mr. Lamell stopped making his monthly mortgage payment.

That same month, Mr. Lamell filed a state court petition against the Harris County Appraisal District, its Review Board, and the Harris County Tax Assessor, alleging fraud-related claims arising from certain tax assessments and charges on his property.

In April 2010, the then-mortgage servicer of Mr. Lamell’s property, CIT Bank , N.A. (CIT), sent Mr. Lamell a notice of default, demand to cure, and notice of intent to accelerate the loan.

In response, Mr. Lamell amended his state court petition to add CIT as a defendant.

But he did not cure his default.

The “Amended 2009 Petition” purported to assert the following claims:

“Violation of Due Process, Violation of Fair and Uniform Tax Appraisal, Fraud and Misrepresentation, Unlawful Tax Collection, Failure to Disclose, Conversion, and False Agency.”

Because of Mr. Lamell’s failure to cure, USBNA sent him a first notice of acceleration in June 2010.

In it, USBNA demanded payment of the entire outstanding loan amount.

Over the next three years, USBNA sent Mr. Lamell at least five more notices of acceleration, all of which demanded the entire amount outstanding on the loan.

But Mr. Lamell never cured the default.

In October 2013, CIT transferred its mortgage servicing rights to Ocwen Loan Servicing, LLC (Ocwen).

Between January and April 2014, Ocwen sent Mr. Lamell four separate mortgage account statements demanding less than the full amount then due on the loan.

Mr. Lamell still did not cure, nor did he pursue any of the mortgage foreclosure alternatives that Ocwen offered.

It does not appear from the record that anything meaningful occurred in relation to this case until May 2019, when Ocwen transferred the mortgage servicing rights to PHH.

Around that same time, there were several developments in the state court proceeding.

First, Mr. Lamell supplemented his state court petition, seeking a declaration that any pending or future foreclosure actions by CIT or its successors or assigns were time barred.

Second, the parties settled, releasing all claims and counterclaims that were part of the state court suit.

Third, the state court entered final judgment on the settlement agreement, dismissing with prejudice all claims that were or could have been asserted.

On July 2, 2019, PHH sent its first notice of foreclosure to Mr. Lamell .

The very next day, USBNA and PHH commenced the present action in federal district court, seeking a declaratory judgment “to confirm that the Statute of Limitations does not prevent them from enforcing the Loan Agreement, that Defendant released any claims he may have had to bar the enforcement of the Loan Agreement, and for foreclosure so it may enforce its security interest in the Property.”

USBNA and PHH also sought a declaration that they were equitably or contractually subrogated to the rights of prior lienholders.

Mr. Lamell counterclaimed for both declaratory and monetary relief.

Despite the July 2, 2019 notice of foreclosure, Mr. Lamell still did not cure his default.

So, in August 2019, PHH sent Mr. Lamell a notice of acceleration of loan maturity, which demanded the full amount outstanding on the loan-$1, 289, 102.72.

Meanwhile, USBNA and PHH moved for summary judgment on their claims for declaratory relief in the federal suit.

The magistrate judge recommended granting the motion on the ground that Mr. Lamell’s statute of limitations defense was barred by res judicata, and that USBNA and PHH presented sufficient summary judgment evidence showing entitlement to non-judicial foreclosure.

It further recommended that there was a genuine factual dispute regarding whether USBNA and PHH abandoned acceleration of the full loan amount;

whether USBNA and PHH were entitled to a declaratory judgment as to their right to equitable and contractual subrogation;

and

whether PHH and USBNA were entitled to pay taxes on the property.

The district court adopted the magistrate judge’s recommendations in full and entered final judgment in favor of USBNA and PHH.

Mr. Lamell then moved for a new trial under Federal Rule of Civil Procedure 59, which the district court denied.

USBNA and PHH moved to amend the judgment, asking the district court to enter summary judgment in their favor with respect to their abandonment of acceleration claim.

The district court denied the motion.

The district court construed Mr. Lamell’s motion as a Rule 60(b) motion for relief from a final judgment, order, or proceeding.

Mr. Lamell timely appealed the district court’s summary judgment order and its order denying his motion for a new trial.

LIT; Mr. Lamell is pro se on appeal. (ADDED TO THE ‘AFTER’ OPINION).

II.

We review a district court’s order granting a motion for summary judgment de novo, applying the same standard as the district court.

Hyatt v. Thomas, 843 F.3d 172, 176 (5th Cir. 2016).

Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed.R.Civ.P. 56(a).

A disputed fact is material if it “might affect the outcome of the suit under the governing law[.]”

Hyatt, 843 F.3d at 177 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

“We construe all facts and inferences in the light most favorable to the nonmoving party[.]”

Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (quoting Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005)).

III.

The district court devoted considerable space in its order to discussing whether summary judgment was proper as to

(a) USBNA’s request for a declaration that it abandoned its acceleration of the loan,

and

(b) USBNA’s request for a declaration that the state court settlement and dismissal was res judicata as to Mr. Lamell’s statute of limitations affirmative defense.

But we need not address either issue.

USBNA is entitled to enforce its equitable subrogation rights to foreclose on Mr. Lamell’s property.

See Ballew v. Cont’l Airlines, Inc., 668 F.3d 777, 781 (5th Cir. 2012) (“We may . . . affirm on any ground supported by the record.”).

The doctrine of equitable subrogation is a legal fiction that “allows a lender who discharges a valid lien on the property of another to step into the prior lienholder’s shoes and assume that lienholder’s security interest in the property, even though the lender cannot foreclose on its own lien.”

PNC Mortg. v. Howard, 616 S.W.3d 581, 582 (Tex. 2021) (quoting Fed. Home Loan Mortg. Corp. v. Zepeda, 601 S.W.3d 763, 766 (Tex. 2020)).

It “applies ‘in every instance in which one person, not acting voluntarily, has paid a debt for which another was primarily liable and which in equity should have been paid by the latter.'”

Frymire Eng’g Co. ex rel. Liberty Mut. Ins. Co. v. Jomar Int’l, Ltd., 259 S.W.3d 140, 142 (Tex. 2008) (Willett, J.)

(quoting Mid-Continent Ins. Co. v. Liberty Mut. Ins. Co., 236 S.W.3d 765, 774 (Tex. 2007)).

“Texas courts are particularly hospitable to the doctrine” and apply it liberally.

Bank of Am. v. Babu, 340 S.W.3d 917, 925 (Tex. App.-Dallas 2011, pet. denied).

Its general purpose “is to prevent unjust enrichment of the debtor.”

Id. (citing First Nat’l Bank of Kerrville v. O’Dell, 856 S.W.2d 410, 415 (Tex. 1993)).

The district court held that USBNA was entitled to a declaratory judgment that it could foreclose on Mr. Lamell’s property pursuant to its equitable subrogation rights.

We agree.

Notably, Mr. Lamell does not dispute this conclusion on its merits, arguing instead that USBNA is barred by res judicata from enforcing its equitable subrogation rights on the ground that USBNA was required to assert its foreclosure claim as a counterclaim in the state court action.

Not so; at least one Texas appellate court has held that foreclosure claims are not compulsory counterclaims.

See, e.g., Casterline v. OneWest Bank , FSB, No. 13-17-00118-CV, 2018 WL 1755821, at *4 (Tex. App.-Corpus Christi Apr. 12, 2018, pet. denied).

Mr. Lamell has not directed us to on-point, controlling authority suggesting otherwise.

Mr. Lamell argues further that “the doctrine of equitable subrogation is essentially a red herring” given that the statute of limitations to bring suit for foreclosure has expired.

He goes on to argue that lenders cannot invoke equitable subrogation to avoid the statute of limitations.

Remarkably, Mr. Lamell cites PNC Mortgage v. Howard, 618 S.W.3d 75, 85 (Tex. App.-Dallas 2019) for this proposition.

Yet, prior to Mr. Lamell’s submission of his brief in this court-and indeed, a few days prior to the district court’s issuance of its summary judgment order-the Supreme Court of Texas reversed that decision, holding that a lender’s failure to timely foreclose under a deed of trust does not bar its subrogation rights.

PNC, 616 S.W.3d at 585; cf. Zepeda, 601 S.W.3d at 769.

The Supreme Court of Texas’s decision in PNC puts an end to the matter.

Equitable subrogation protects USBNA’s right to foreclose, even if the four-year statute of limitations under § 16.035 of the Texas Civil Practice and Remedies Code has expired and even if res judicata does not bar Mr. Lamell from asserting his limitations defense.

Of course, we express no view on either issue.

* * *

Summary judgment was proper in favor of USBNA on equitable subrogation grounds.

Accordingly, the judgment is AFFIRMED.

I. Introduction

Lamell’s Appellant’s Brief relies partly on PNC Mortg. v. Howard, 618 S.W.3d 75, 85 (Tex. App.—Dallas 2019) (“Howard I”).

Noting that the “statute of limitations on foreclosure would be rendered meaningless if lenders could always avoid it simply by claiming equitable subrogation,” Howard I denied PNC’s equitable subrogation claim because PNC had been dilatory in waiting approximately five-and-a-half years after acceleration—well past four-year limitations—to seek foreclosure.

(Appellant’s Brief, p.51)

Regarding Lamell’s reference to Howard I, the Opinion states:

Yet prior to Mr. Lamell’s submission of his brief in this court—and indeed, a few days prior to the district court’s issuance of its summary judgment order—the Supreme Court of Texas reversed that decision, holding that a lender’s failure to timely foreclose under a deed of trust does not bar its subrogation rights.

[PNC Mortg. v. Howard (“Howard II”), 616 S.W.3d 581, 585 (Tex. 2021)]; cf. [Fed. Home Loan Mortg. Corp. v. Zepeda, 601 S.W.3d 763, 769 (Tex. 2020)]. (bold emphasis added)

Establishing Howard II as key in its decision, the Court proceeded to conclude that USBNA was entitled to foreclose through equitable subrogation because:

The Supreme Court of Texas’s decision in [Howard II] puts an end to the matter.

Equitable subrogation protects USBNA’s right to foreclose, even if the four-year statute of limitations under § 16.035 of the Texas Civil Practice and Remedies Code has expired and even if res judicata does not bar Mr. Lamell from asserting his limitations defense. Of course, we express no view on either issue.

(Opinion, p.7) (bold emphasis added)

Asserting its authority to affirm “on any ground supported by the record,” (Opinion, p.6) the Court affirmed the judgment of the lower court.

Regarding USBNA’s requests for declarations as to abandonment and res judicata the Court stated: “we need not address either issue. USBNA is entitled to enforce its equitable subrogation rights to foreclose on Mr. Lamell’s property.”

The Court declined to address any other issues in its Opinion.

The Court’s Opinion merits rehearing for the reasons shown below.

II. Procedural History

Final judgment in the lower court case from which this appeal is taken issued on May 24, 2021.

Lamell’s Notice of Appeal was entered on June 18, 2021.

The Howard III decision issued on September 17, 2021, only three weeks before Lamell’s Appellant’s Brief was filed on October 8, 2021.

PNC’s petition for review of Howard III was filed at the Supreme Court of Texas on November 1, 2021.

(Supreme Court of Texas, Docket Report, https://search.txcourts.gov/Case.aspx?cn=21-0941&coa=cossup)

On April 1, 2022—less than a week before the Opinion issued and well after Lamell’s Reply Brief, the final brief in this appeal, was filed on January 20, 2022— the Supreme Court, without granting or denying the petition, requested full merits briefs.

Id.

Absent extensions of time, petitioner’s brief is due May 2, 2022, respondent’s brief is due May 23, 2022, and petitioner’s reply brief is due June 7, 2022.

LIT: Respondents’ Brief on the Merits is due no later than June 16, 2022. 

Id.

This Court’s Opinion issued on April 7, 2022.

None of the briefs filed in this appeal—Lamell’s Appellant’s Brief filed October 8, 2021, Response Brief of Appellees filed December 16, 2021, and Appellant’s Reply Brief filed January 20, 2022—made any mention of Howard II or Howard III.

The lower court determined that it “cannot find as a matter of law that the statute of limitations is unexpired.”1

This indicates that the June 4, 2010 acceleration of the Note (ROA.1218–21) remained in effect as the date of accrual and as the starting date for the running of limitations related to all of Appellees’ enforcement remedies throughout the pendency of the state court action through dismissal on May 16, 2019

(ROA.128-89).

Limitations for Appellees’ judicial and non-judicial foreclosure remedies expired on March 3, 2016 and June 28, 2016 respectively.

Separately and independently, limitations for bringing an action to enforce collection on the Note expired on June 4, 2016, more than three years before Appellees filed their subrogation claims in the lower court civil action

(Appellant’s Brief, p.16¶1).

III. Argument

A. The Key Case Cited by the Court—Howard II— is Unavailing.

The “reversal” referred to by the Court (Supra at p.2) was only a reversal in part arising out of other grounds and facts materially different from this appeal.2

In particular, Howard II addresses only the lender’s right to foreclose and the four-year statute of limitations under Section 16.035.

The fact matrix in this appeal, however, is substantially different.

Not only has the four-year limitations on USBNA’s deed and foreclosure remedies expired, more importantly, the six-year limitations for its rights to bring “an action to enforce” collection on the Note (TEX. BUS. & COM. CODE ANN. § 3.118(a)) has also expired.

This circumstance is unique in that lenders rarely go beyond limitations for collection.

The difference between the six-year limitations for collection having expired in this case where, in the Howard cases, it had not, substantially distinguishes Lamell’s case from Howard II.

As a result, the Supreme Court’s decision in Howard II in its affirmation of USBNA’s purported equitable subrogation rights with respect to the lien and foreclosure under the deed of trust (Appellant’s Brief, pp. 38-42) is not applicable to this case.

Howard II’s internal references to Zepeda are similarly unavailing.

Its representation that “The facts in Zepeda substantially mirror those in the case before us,” (Howard II, 616 S.W.3d at 584) is erroneous.

Indeed, the Zepeda cases are clearly distinguishable.3

While they involve a constitutionally defective note, they do not involve default, expired limitations, an accelerated note, foreclosure, or collection.

Howard II, however, while it does involve a borrower in long standing default, an accelerated note, and a lender wanting to foreclose years after

limitations for foreclosure have expired, does not involve a defective Note.

The main thing common to Howard II and Zepeda seems to be that, at some point early in their histories, a refinancing occurred.

Howard II is materially different from this case in that it hinges entirely on subrogation rights associated with a deed of trust securing an underlying note where, although the four-year limitations had expired for foreclosure, the six-year limitations for collection had not yet expired.

Howard II is therefore unavailing to the Court as authority.

B. A Related, More Recent Case Not Addressed by the Court—Howard III—Critically Undermines its Opinion.

Not only is the Howard II decision unavailing as it relates to this case, the Court’s Opinion is undermined by the related, more recent, and directly contrary decision—PNC Mortg. v. Howard (“Howard III”), No. 05-17-01484-CV (Tex. App. Sep. 17, 2021)—issued after remand from Howard II months after Lamell’s notice of appeal was filed.

Howard III directed the Dallas court to consider

(1) whether PNC’s equitable subrogation lien was time barred,

and

(2) whether the deed of trust precluded assertion of PNC’s equitable subrogation claim.

As to (1), it concluded that PNC’s equitable subrogation lien was barred by limitations, (Infra at p.8) affirming that any lien or power of sale held by PNC was void and unenforceable.

With that decision in place, the Dallas court did not need to address question (2) as to whether language in the deed of trust precludes PNC’s subrogation claim.

(Howard III, No. 05-17-01484-CV at 1)

Simply put, the more recent and on-point Howard III decision serves to show that USBNA cannot, after all, invoke equitable subrogation to foreclose against Lamell’s property.

The Court’s representation that Howard II “puts an end to the matter” (Opinion, p.7) is unfortunate. As is evident from the Howard III decision, instead of ending anything, Howard II led to the beginning of the very issues that have given rise to this petition for panel rehearing.

C. Howard III Supports Lamell on Several Levels.

Noting that Texas case law is conflicted as to when a subrogation claim accrues, Howard III provides a helpful foundation for Lamell’s argument:

“A claim to foreclose a real property lien must be based on the borrower’s failure to pay a secured debt that has either matured under its own terms or had its maturity properly accelerated.

See Wilmington Tr. Nat’l Ass’n. v. Rob, 891 F.3d 174, 177-78 (5th Cir. 2018);

Famous Koko, Inc. v. Member 1300 Oak, LLC, No. 05-17-00906-CV, 2018 WL 6065256, at *3 (Tex. App.-Dallas Nov. 20, 2018, no pet.) (mem. op.).

Limitations on the lien claim begins to run on the date of maturity.

Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001).

Because a refinancing lender steps into the shoes of the original lender in a subrogation claim, the question arises as to whether the maturity date of the original loan or of the refinancing loan controls.

Unfortunately, Texas case law gives conflicting answers to this question.”

(Howard III, No. 05-17-01484-CV at 4)(bold emphasis added)

Howard III resolves the afore-mentioned “conflicting answers” by establishing that a refinancing lender’s subrogation claim is barred by the same statute of limitations applicable to its underlying foreclosure claim, and that where the note has been accelerated, subrogation rights accrue on the date of acceleration.

To wit:

PNC cannot, in the name of equity, have more rights than the party to which it is subrogated, and those rights are subject to the same defenses the borrower would have had against the original lender.

See [Mid-Continent Ins. Co. v. Liberty Mut. Ins. Co., 236 S.W.3d 765, 774 (Tex. 2007)].

If this claim had been brought by the original lender, it would have to have been filed within four years after the debt matured.

[Brown v. Zimmerman, 160 S.W.3d 695, 700 (Tex. App.-Dallas 2005, no pet.).]

Because PNC did not file its subrogation lien claim within four years after the date the debt was accelerated, it is time-barred.

(Howard III, No. 05-17-01484-CV at 10)

Applying Howard III to this case shows that, contrary to the Opinion, USBNA can have no greater right to foreclose against Lamell’s property than the original lender would have had if it were trying to foreclose on the property three years after limitations expired based on the June 4, 2010 date of acceleration (ROA.1218–21).

Notably, the Texas Supreme Court’s decision in Howard II seems to presuppose the existence of two notes:

(1) an original note

and

(2) a refinanced note.

However, as the Court of Appeals clarified further in Howard III (Id. at p.9):

[N]either PNC nor the federal cases address why acceleration of the refinancing debt would not similarly accelerate the maturity of the original debt.

Although the legal fiction of the original debt continues for subrogation purposes, there is still only one debt.

Once accelerated, that one debt is mature.

See [GMAC v. Uresti, 553 S.W.2d 660, 663 (Tex. App.- Tyler 1977, writ ref’d n.r.e.)].

And once mature, any claim to enforce a lien securing that debt accrues.

[Khan v. GBAK Props., Inc., 371 S.W.3d 347, 353 (Tex. App.-Houston [1st Dist.] 2012, no pet.)]. (bold emphasis added)

Just as in Howard III, there is only one debt in this case.

The Dallas court observes further that the legislature has determined that limitations on lien rights need not be commensurate with limitations on collection rights.

“[T]he right to collect and the right to seek a forced sale are two quite different things.”

Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996) (quoting U.S. v. Rodgers, 41 U.S. 677, 691 (1983)).

Moreover, with respect to the “infirmity” in the refinancing lender’s lien referred to in Zepeda, 601 S.W.3d at 769, Howard III supports Lamell further in noting that:

[T]he “infirmity” in PNC’s deed of trust lien—the expiration of the limitations period—is … as much a problem for the subrogation lien as it is for the deed of trust lien.

While subrogation may permit a new lender to assume the prior lender’s lien position, the rights assumed by the new lender are limited to only those that could have been asserted by the prior lien holder.

Howard II, 616 S.W.3d at 584–85; see also Mid-Continent Ins. Co. v. Liberty Mut. Ins. Co., 236 S.W.3d 765, 774 (Tex. 2007) …

In this case, if the original lender had brought a suit to enforce its real property lien, the suit would be governed by the four-year limitations period found in section 16.035.

Zimmerman, 160 S.W.3d at 701.

Accordingly, the same statute governs PNC’s subrogation action seeking that relief.

(Howard III, No. 05-17-01484-CV at 4-5)(bold emphasis added)

In the case at hand, equitable subrogation is doubly inappropriate.

It is not only because, as Howard III establishes and Lamell argues, the four-year limitations (TEX. CIV. PRAC. REM. CODE § 16.035(b)) related to the power of sale/foreclosure of the deed had expired that equitable subrogation does not apply.

It is also—and even more clearly so—because the separate and independent six-year statute of limitations for collection on the Note (TEX. BUS. & COM. CODE ANN. § 3.118(a)) had itself expired three years earlier on June 4 of 2016.

(Supra at p.4)

The fact that this rendered the Note uncollectable 4 independent of the power of sale under the deed of trust stands in significant and material distinction to the Howard cases in which PNC’s suit on the Note itself was brought well within its six-year limitations period.

(Howard I, 618 S.W.3d. at 87)

Further distinguishing Howard III from Howard II is its focus on acceleration and the nature of a claim for collection being entirely separate and distinct from an action to foreclose under the power of sale provisions of a deed of trust.

Neither these points nor the filing of a claim or suit to collect on the note were adjudicated in Howard II.

The focus on collection, acceleration and the independent and separately running limitations for collection is central to Lamell’s appeal and further distinguishes it from the issues decided in Howard II.

D. Where the Underlying Note is Not Collectible, Foreclosure is Barred and Equitable Subrogation is not Available.

Once limitations for bringing a suit or claim for collection—i.e. “an action to enforce the obligation of a party to pay a note” (TEX. BUS. & COM. CODE ANN. § 3.118(a))—have expired, the note is no longer collectable.

Furthermore, because the mortgage follows the note,5 foreclosure cannot be employed to enforce payment on a note that expired limitations have rendered uncollectable.

Neither Appellees nor the Court cite to any authority in support of the proposition that, through equitable/contractual subrogation arising out of or related to a lien, acceleration can somehow be nullified or rescinded or that collection can proceed even when limitations for collection have expired.

Nor has anyone suggested that subrogation rights can somehow derive from the Note itself.

In short, even if equitable subrogation were somehow available with respect to powers of sale under the deed of trust lien, foreclosure against Lamell’s property would still not be possible because limitations for collection on the Note have expired separately and independently of the lien.

E. Howard III is the Ineluctable Outcome of Howard II. It Should be Considered by the Court in the Rehearing Requested.

Apart from Howard II being shown herein to be unavailing, it was not cited by Appellees in any of their filings.

It was introduced after briefing concluded sua sponte by the Court as primary authority supporting its Opinion.

Howard III arose directly on remand from Howard II.

In effect, it is the “child” of Howard II and no less important than its “parent.”

Indeed, as it relates to this Appeal, it is even more

important because it addresses issues Howard II did not consider.

Not only are the issues involved critically relevant to this Appeal, the Dallas court effectively determined them contrary to the Opinion and in Lamell’s favor.

Accordingly, the Court’s deliberations in this Appeal cannot be considered complete without taking into account, not only Howard III as precedent, but also the outcome of the pending appeal of Howard III presently at the Supreme Court of Texas.

F. The Pending Petition for Review of Howard III at the Supreme Court Bears Directly on this Appeal.

As noted Supra at p.3, Howard III has become the subject of an ongoing petition for review filed by PNC on November 1, 2021 (No. 21-0941).

In fact, Howard III arose directly from the Howard II decision cited by the Court.

It is problematic in that it directly contradicts the Opinion.

However, because it came months after the noticing of this appeal, it was not addressed either by the Court or by the parties.

Furthermore, as noted above, Howard III became the subject of a pending petition for review that was filed at the Supreme Court of Texas only six days prior to the Opinion’s issuance.

The outcome of this petition, coming as it will directly from the Supreme Court, is of significant import as to the Opinion.

Taken together, the foregoing circumstances suggest that the Court should grant a rehearing, even if it is for the limited purpose of waiting for the ultimate disposition of Howard III by the Supreme Court of Texas which this Court might then be able to address directly.

IV. Conclusion

“The statute of limitations on foreclosures would be rendered meaningless if lenders could always avoid it simply by claiming equitable subrogation.”

(Howard I, 618 S.W.3d at 85).

Because Lamell has shown the Court’s reliance on Howard II to be unavailing, Howard I remains standing as supporting authority.

Left as is, this Court’s decision seems to provide a roadmap lenders can exploit to nullify and evade limitations statutes established in the public interest by the legislature for the sake of orderly judicial procedure.

This outcome should be avoided.

As shown herein, Appellees cannot avail themselves of equitable or contractual subrogation arising solely out of the deed of trust lien to enforce, by foreclosure against Lamell’s property, a separate collection on the Note for which limitations expired years ago.

In its further proceedings on remand, the Court of Appeals (Dallas) issued a new decision in Howard III that supports Lamell’s argument and negates the Court’s determination against him in its Opinion.

Moreover, adding an additional dimension to this case, Howard III has become the subject of an ongoing petition for review filed in the Supreme Court of Texas seeking to overturn the 5th Court of Appeals’ decision.

Because Howard III contradicts the Opinion,

because it represents new authority not yet considered by the parties or the Court,

because it establishes that Appellees cannot invoke equitable subrogation to conduct foreclosure,

and

because it has become the subject of an ongoing petition for review in the Supreme Court

— the ultimate disposition of which goes to the core of the decision in the Court’s Opinion

—rehearing is warranted and appropriate.

V. Prayer

WHEREFORE, PREMISES CONSIDERED, Lamell prays that this Court GRANT his Petition for Panel Rehearing.

RESPECTFULLY SUBMITTED,

By: /s/ Josef M. Lamell
Josef M. Lamell, pro se
5131 Glenmeadow Drive,
Houston, Texas 77096
email: lamell@alum.mit.edu

Certificate of Compliance

Lamell’s Petition for Panel Rehearing complies with the type-volume limitation of FED. R. APP. P. 32(a) (5TH CIR. R. 32.1, 32.2) because it contains, 3,541 words, excluding the parts exempted by FED. R. APP. P. 32(f).

Lamell’s Petition for Panel Rehearing also complies with the typeface and the type style requirements of FED. R. APP. P. 32(a)(5), 32(a)(6)(5TH CIR. R. 32.1, 32.2) because it has been prepared in a proportionally-spaced typeface using Microsoft Word in 14 point Times New Roman type style.

Dated April 21, 2022.

/s/ Josef M. Lamell
Josef M. Lamell, pro se

Certificate of Service

I hereby certify that on April 21, 2022, a true and correct copy of the foregoing Petition for Panel Rehearing was sent to the recipients named below via e-service and email.

/s/ Josef M. Lamell

Josef M. Lamell, pro se

Christopher D. Kratovil
Telephone (214) 462-6458
ckratovil@dykema.com

Amelia H. Marquis
Telephone
(214) 462-6246
Amarquis@dykema.com

Dykema Gossett PLLC
1717 Main Street, Suite 4200
Dallas, Texas 75201
Telephone: (214) 462-6400
Facsimile: (214) 462-6401

Attorneys for Appellees
U.S. Bank, National Association
PHH Mortgage Corporation