Acceleration

The Deleted Opinion: After the Before From the Dishonorable Fifth Circuit

Non prisoner Lamell obtains a partial reversal in his favor from a 3-panel which capitulated from their earlier opinion. LIT investigates why.

LIT COMMENTARY

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.

U.S. Bank v. Lamell, No. 21-20326 (5th Cir. June 2, 2022)

JUNE 2, 2022 | REPUBLISHED BY LIT: JUNE 5, 2022

Before Stewart, Clement, and Elrod, Circuit Judges. Per Curiam:

It is ORDERED that our prior panel opinion, U.S. Bank National Association v. Lamell, No. 21-20326, 2022 WL 1044055 (5th Cir. Apr. 7, 2022), is WITHDRAWN and the following opinion is SUBSTITUTED therefor.

It is further ORDERED that Appellant Josef Lamell’s petition for panel rehearing is DENIED as MOOT.

*          *          *

Edith Brown Clement, Circuit Judge:*

Appellant Josef Lamell has not made the monthly mortgage payment on his house for over a decade.

LIT: No homeowner has obtained meaningful relief from wrongful foreclose cases appealed to the Fifth Circuit in over 14 years, defying the billions in fines levied against these banks and nonbanks for predatory lending post 2008.

Following the settlement of a protracted state court proceeding initiated by Mr. Lamell, Appellees United States Bank National Association (USBNA) and PHH Mortgage Corporation (PHH) filed a declaratory judgment action in federal district court.

The Appellees sought declarations that

(a) they were not time-barred from foreclosing on Mr. Lamell’s property or collecting on the mortgage note;

(b) they were entitled to pay taxes on the property;

(c) they were entitled to non-judicial foreclosure;

and

(d) they were entitled to foreclosure under the theories of equitable and contractual subrogation.

The district court granted summary judgment in the Appellees’ favor, and Mr. Lamell timely appealed.

For the following reasons, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings.

I.

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

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

The deed of trust was assigned to USBNA in 2010, which is the current holder of the note and beneficiary of the deed of trust.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

Judge Clement Violated Many Rules On the Burke’s Appeal as the Motion Judge

In February 2010, Mr. Lamell defaulted on the loan.

That same month, he (pro se) 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.1

But he did not cure his default.

LIT: Why would anyone cure a disputed debt, which would defy the purpose of suing someone?

It’s a vile statement repeated herein.

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

In it, USBNA accelerated the maturity of the loan and declared the entire loan amount due and payable.

Over the next three years, USBNA sent Mr. Lamell at least five more notices of acceleration, all to the same effect.

But Mr. Lamell never cured his default.

LIT: Why would anyone cure a disputed debt which would act as an admission?

It’s a foul statement repeated herein.

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 of the accelerated loan.

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

Five years later, in May 2019, 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

1 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.”

Judge Stewart’s Outrageous Lies Are On the Record and On Audio

foreclosure or collection 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 parties’ agreement, dismissing with prejudice all claims that were or could have been asserted.

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

The very next day, the Appellees 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.”

The Appellees also sought a declaration that they were equitably or contractually subrogated to the rights of prior lienholders.

Mr. Lamell, again proceeding pro se, counterclaimed for both declaratory and monetary relief.

LIT: The correct wording y’all use is “NON-PRISONER”. That’s another loathsome classification for law-abiding citizens.

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

LIT: Because the foreclosure was time-barred, silly….

So, in August 2019, PHH accelerated the loan.

Meanwhile, the Appellees moved for summary judgment on their claims for declaratory relief.

The district court granted the Appellees’ motion in part and denied it in part.

It denied the Appellees’ request for a declaration that they unilaterally abandoned their acceleration of the loan.

U.S. Bank Nat’l Ass’n as Tr. for CSMC Mortgage-Backed Tr. 2007-3 v. Lamell, No. 4:19-CV-2402, 2021 WL 1133154, at *3–5 (S.D. Tex. Feb. 4, 2021), report and recommendation
adopted, No. CV H-19-2402, 2021 WL 1141247 (S.D. Tex. Mar. 24, 2021).

Specifically, it held that the Appellees failed to present sufficient summary judgment evidence of an unequivocal intent to abandon their prior accelerations. Id. at *5.

On the other hand, it granted the Appellees’ request for a declaration that claim preclusion barred Mr. Lamell’s statute of limitations affirmative defense,

id. at *6–9;

that the Appellees were entitled to non-judicial foreclosure,

id. at *9–10;

and

that the Appellees were entitled to foreclose on Mr. Lamell’s property under the doctrines of contractual and equitable subrogation,

id. at *10–13.

Mr. Lamell then moved for a new trial under Federal Rule of Civil Procedure 59.2

At the same time, the Appellees moved to amend the judgment, asking the district court to enter summary judgment in their favor on the issue of abandonment of acceleration.

The district court denied both motions.

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

Mr. Lamell is pro se on appeal.

LIT: Y’all love callin’ out them NON-PRISONERS without counsel, not payin’ dues to the legal profession.

Well, as LIT has highlighted, no foreclosure defense lawyer (even the beloved Raffi) has ever come out with a positive result for a homeowner.

Or in Raffi’s case, a former homeowner – which Judge Carl Stewart did not even know at oral argument. The former Chief Judge even fraudulently claimed to be a circuit judge who ‘doesn’t know Texas foreclosure procedures, despite his post 2008 landmark precendential authored opinions upending 200 years of binding real estate laws.

II.

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

Unlike Judge Hittner, which was raised by the Burkes in their appeals to this court, which was blanked – violatin’ the Rule of Law.

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

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

BDF, Goodwin Law, PHH Ocwen, US Bank and Ochlocracy. Note the Theme.

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.

A.

This case hinges on whether the Appellees timely filed suit to foreclose on Mr. Lamell’s property.

The district court did not reach that issue, however, because it held that the state court order dismissing Mr. Lamell’s action with prejudice was res judicata as to his statute of limitations affirmative defense.

Considering the issue de novo, we disagree.

See Liberto v. D.F. Stauffer Biscuit Co., 441 F.3d 318, 326 (5th Cir. 2006).

Texas preclusion law applies.

Anderson v. Wells Fargo Bank, N.A., 953 F.3d 311, 314 (5th Cir. 2020).

Like federal law, Texas law creates two varieties of res judicata:

(1) true res judicata, otherwise known as claim preclusion;

and

(2) collateral estoppel, otherwise known as issue preclusion.

Barr v. Resol. Tr. Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex. 1992);

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

Claim preclusion bars “the relitigation of a claim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in the prior suit.”

Barr, 837 S.W.2d at 628.

The judgment that the Appellees contend has claim preclusive effect is the state court’s consent decree dismissing with prejudice Mr. Lamell’s action, which included his request for a declaratory judgment that the Appellees were time-barred from foreclosing on his property.

The Supreme Court of Texas has not directly ruled on whether judgments dismissing claims for declaratory relief are entitled to claim preclusive effect.

Declaratory relief refers to a court’s judgment stating the rights of parties without ordering any specific action or listing awards for damages. When a party is requesting a declaratory judgment, the party is seeking an official declaration regarding the status of the controversy in issue.

So, “we must make an ‘Erie guess’ as to how [it] would rule upon the issue[.]”

Am. Int’l Specialty Lines Ins. Co. v. Rentech Steel LLC, 620 F.3d 558, 564 (5th Cir. 2010) (Elrod, J.).

To do so, we consider the following factors:

(1) decisions of the [Supreme Court of Texas] in analogous cases,

(2) the rationales and analyses underlying [Supreme Court of Texas] decisions on related issues,

(3) dicta by the [Supreme Court of Texas],

(4) lower state court decisions,

(5) the general rule on the question,

(6) the rulings of courts of other states to which Texas courts look when formulating substantive law

and

(7) other available sources, such as treatises and legal commentaries.

Id. (citations omitted).

The Supreme Court of Texas’ first and only brush with the issue came in Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (per curiam).

The precise issue before the Court was “whether a dismissal with prejudice of a suit to declare a contract valid bars an action for a breach occurring after the dismissal.”

Id. at 357.

It ultimately held that it did not.

Id. at 359.

But in deciding that question, the Court first considered the issue more germane to our case: the preclusive effect, if any, that courts ought to afford judgments dismissing claims for declaratory relief.

Id. at 358.

In evaluating that question, the Court looked to comment c of Section 33 of the Restatement (Second) of Judgments, which provides:

Effects as to matters not declared.

When a plaintiff seeks solely declaratory relief, the weight of authority does not view him as seeking to enforce a claim against the defendant.

Instead, he is seen as merely requesting a judicial declaration as to the existence and nature of a relation between himself and the defendant.

The effect of such a declaration, under this approach, is not to merge a claim in the judgment or to bar it.

Accordingly, regardless of outcome, the plaintiff or defendant may pursue further declaratory or coercive relief in a subsequent action.

Based on the language of comment c, the Court suggested in dicta that judgments denying declaratory relief “without determining the matters presented . . . should not preclude subsequent claims or issues.”

Id. at 359.

There are no intermediary Texas appellate courts of which we are aware holding that res judicata applies to declaratory judgment dismissals.

However, there are a handful of intermediary Texas appellate courts that have addressed a closely related question: whether judgments awarding only declaratory relief have claim preclusive effect in subsequent suits for coercive relief stemming from the declaratory judgment.

See, e.g., CBS Outdoor, Inc. v. Potter, No. 01-11-00650-CV, 2013 WL 269091, at *1 (Tex. App.—Houston [1st Dist.] Jan. 24, 2013, pet. denied) (mem. op.);

Alsheikh v. Arabian Nat’l Shipping Corp., No. 01-08-00007-CV, 2009 WL 884795, at *2 (Tex. App.— Houston [1st Dist.] Apr. 2, 2009, no pet.) (mem. op.);

Valley Oil Co. v. City of Garland, 499 S.W.2d 333, 335 (Tex. Civ. App.—Dallas 1973, no writ).

Each recognizes “[a]n exception to the application of res judicata . . . when the original suit sought only a declaratory judgment.”

3 CBS Outdoor, 2013 WL 269091, at *4;

Alsheikh, 2009 WL 884795, at *2; Valley Oil Co., 499 S.W.2d at 335.

Quite a few other courts agree.

See Andrew Robinson Int’l, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48, 56 (1st Cir. 2008)

3 But as the CBS Outdoor court explained, issue preclusion would apply to prior declaratory judgment actions with respect to “what was actually considered and ruled on.”

CBS Outdoor, 2013 WL 269091, at *4 (citing Alsheikh, 2009 WL 884795, at *2).

The Real Law in a Texas Opinion Now Buried Under New Unlawful Precedential Opinions

(collecting cases from nineteen different states, as well as five federal cases applying state law and seven federal cases applying federal “common law”).

Crucially, this exception applies even when the relief sought in the subsequent suit “could have been granted in the original action.”

Alsheikh, 2009 WL 884795, at *2 (quoting State v. Anderson Courier Serv., 222 S.W.3d 62, 66 (Tex. App.—Austin 2005, pet. denied)).

In other words, as suggested by comment c of the Restatement, the traditional principle of merger at the heart of claim preclusion does not apply with equal force to claims for declaratory relief as it does to claims for coercive relief.

State v. Fuller, 451 S.W.2d 573, 576 (Tex. Civ. App.—Beaumont 1970), aff’d, 461 S.W.2d 595 (Tex. 1970).

That is because, unlike coercive relief, declaratory relief does not necessarily constitute the “full measure of relief to be accorded between the same parties on the same ‘claim’ or ‘cause of action.’”

MJR’s Fare of Dall., Inc. v. City of Dallas, 792 S.W.2d 569, 572 (Tex. App.—Dallas 1990, pet. denied);

see also ASARCO, L.L.C. v. Mont. Res., Inc., 858 F.3d 949, 955– 56 (5th Cir. 2017)

(“The whole point of a declaratory judgment action is to decide only a single issue in a dispute, one that is often preliminary as subsequent events will need to occur before a traditional lawsuit can be pursued.”).

This very concept is baked into the Texas Uniform Declaratory Judgments Act (TUDJA), which provides:

“Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper.”

Tex. Civ. Prac. & Rem. Code Ann. § 37.011.

Such language implies that a declaratory judgment proceeding is not the end of the road with respect to the claim at issue;

a plaintiff can still seek “further relief” on that claim in a subsequent suit, even relief that would ordinarily be barred if the initial suit had been one for coercive relief.

And indeed, that is exactly what this court explained over four decades ago in Kaspar Wire Works, Inc. v. Leco Engineering & Machine, Inc., 575 F.2d 530 (5th Cir. 1978).

Because of Kaspar Wire’s similarity to our case, it is worth illustrating at length.

There, Kaspar sued Leco for patent infringement (Suit 1).

Id. at 533.

Leco then brought a declaratory judgment action against Kaspar, seeking a declaration that a different patent was invalid (Suit 2).

Id.

Suit 1 proceeded to trial, but before the court entered final judgment, the parties agreed to settle in exchange for Leco’s agreement to dismiss Suit 2.

Id.

Kaspar later filed a third suit (Suit 3), this time for infringement of the patent that was the subject of Suit 2.

Id.

In Suit 3, Leco asserted the affirmative defense of patent invalidity.

Id.

Kaspar argued that the consent decree dismissing Suit 2 with prejudice was res judicata as to the validity of the patent at issue.

Id.

The district court disagreed, holding that the consent decree dismissing with prejudice Suit 2—the declaratory judgment action—did not bar Leco from contesting the patent’s validity in Suit 3.

Id. at 532–33.

We affirmed, holding that res judicata does not attach to a prior declaratory judgment action that was dismissed with prejudice via a consent decree, so long as it was not coupled with a request for coercive relief arising out of the same claim.

See id. at 534–37; ASARCO, 858 F.3d at 955–56

(“[W]hen coercive claims are added to declaratory actions [arising from the same claim], the policy underlying the declaratory judgment exception must give way to the policy underlying traditional res judicata principles, namely, to protect defendants and the courts from a multiplicity of suits arising from the same cause of action.”) (internal quotation marks omitted).

Two aspects of our decision are noteworthy.

First, we looked to the language of the federal Declaratory Judgments Act, which is identical in substance to TUDJA:

“Further necessary or proper relief based on a declaratory judgment or decree may be granted . . . against any adverse party whose rights have been determined by such judgment.”

Kaspar Wire, 575 F.2d at 537 (quoting 28 U.S.C. § 2202) (emphasis added).

We explained that the supplementary nature of declaratory relief—as indicated by the statute’s inclusion of the word “further”—“suggests the inappropriateness of applying rules of claim preclusion in the usual way [to declaratory judgments].”

Id.

Second, we discussed the conceptual difficulties that arise when applying the traditional rules of claim preclusion to declaratory judgment proceedings—particularly when the declaratory judgment plaintiff’s “claim” is, in reality, an anticipated defense repurposed as a declaratory judgment claim.

Id. at 536.

Applying claim preclusion in the usual way in that circumstance would theoretically permit clever litigants to anticipate suit, bring a future defense as a declaratory judgment “claim,” and thereby preclude the would-be plaintiff from being able to bring her claim for coercive relief.

Id.

“Undoubtedly no court would sanction such a result.”

Id.

Kaspar Wire is our case, in a nutshell.

Like in Kaspar Wire, Mr. Lamell’s declaratory judgment “claim” was not really a claim at all; it was an “anticipatory defense to a potential claim.”

Id.

Moreover, the declaratory judgment proceeding in Kaspar Wire ended in a dismissal with prejudice pursuant to a consent decree, just like Mr. Lamell’s declaratory judgment proceeding.

Id. at 537–38.

Thus, Kaspar Wire counsels against applying res judicata to the state court’s consent decree dismissing Mr. Lamell’s declaratory judgment action with prejudice.4

Granted, federal court decisions are not ordinarily our primary Erie- guess authorities.

And the Kaspar Wire court applied the federal common law of res judicata, not Texas preclusion law.

However, its underlying reasoning is persuasive and aligns with Texas authority on the question whether res judicata applies to declaratory judgment dismissals.

We are convinced that, were the Supreme Court of Texas faced with the question, it would hold that declaratory judgment dismissals are not entitled to claim preclusive effect, so long as the declaratory judgment request was not coupled with a claim for coercive relief arising from the same cause of action.

B.

Given that Mr. Lamell is not claim precluded from asserting his statute of limitations affirmative defense, we next address whether the Appellees are time-barred from bringing suit to foreclose.

In Texas, “[a] person must bring suit for . . . the foreclosure of a real property lien not later than four years after the day the cause of action accrues.”

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

Where, as here, the note or deed of trust contains an optional acceleration clause, a cause of action for foreclosure accrues when the holder exercises its

4 To be sure, Kaspar Wire involved a standalone declaratory judgment claim, whereas Mr. Lamell’s declaratory judgment claim was part of a larger case that also included claims for coercive relief.

But that does not affect the outcome here.

As previously explained, res judicata applies to declaratory judgments only when the claim for declaratory relief was coupled with claims for coercive relief arising out of the same cause of action.

Mr. Lamell’s request for a declaration that the Appellees were time-barred from bringing a foreclosure action was distinct from his claims for coercive relief, which arose out of allegedly improper tax assessments on his property, as well as various chain of title issues related to enforcement of the loan.

US Bank Defeated by Honest Judges. Crooked Gov. Charlie Baker Burned the Ibanez Published Case in Favor of Homeowners.

option to accelerate.

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

It is undisputed that the Appellees accelerated the refinanced loan’s maturity on June 4, 2010.

It is equally undisputed that they did not bring suit to foreclose on Mr. Lamell’s property within four years of that date.5

To avoid this statute of limitations dilemma, the Appellees asserted before the district court—and again before this court—that they abandoned their acceleration of the loan’s maturity by sending four monthly statements to Mr. Lamell purporting to demand less than the full amount of the loan.

The district court didn’t buy their argument, holding that the Appellees had not presented sufficient summary judgment evidence of an unequivocal intent to abandon their prior accelerations. We agree.

It is well settled in this circuit that a lender can unilaterally abandon its prior acceleration of a loan by later requesting payment of less than the full amount of the loan.

Boren v. U.S. Nat’l Bank Ass’n, 807 F.3d 99, 106 (5th Cir. 2015).

But, critically, the request must “demonstrate an unequivocal manifestation of [the lender’s] intent to no longer accelerate the loan.”

Colbert v. Wells Fargo Bank, N.A., 850 F. App’x 870, 875 (5th Cir. 2021) (internal quotation marks omitted).

The weight of our precedent suggests that monthly statements demanding less than the full amount of a loan are not alone sufficient to constitute abandonment.

E.g.,

Bank of N.Y. Mellon Tr. Co. Nat’l Ass’n v. Meachum, No. 21-10766, 2022 WL 1171059, at *3 (5th Cir. Apr. 20, 2022);

Before Smith, STEWART, and Graves, Circuit Judges. PER CURIAM.

Colbert, 850 F. App’x at 875;

Lyons v. Select Portfolio Servicing Inc., 748 F.

Before DAVIS, HAYNES, and GRAVES, Circuit Judges. PER CURIAM.

5 Mr. Lamell concedes in his brief that some tolling occurred, which pushed back the deadline to bring suit by around two years. Even accepting that as true, any such tolling is immaterial here.

“The RICO lists a number of crimes that can constitute racketeering activity, including obstruction of justice (as defined by 18 U.S.C. § 1503) and witness tampering (as defined by 18 U.S.C. § 1512)”

Penalizes one [EXCEPT ROGUE FORECLOSURE LAWYER MARK DANIEL HOPKINS WHO ADMITTED TO CONCEALING THE BURKES’ MORTGAGE LOAN FILE FROM THE COURT AND THE BURKES] who:

Corruptly

(1) alters, destroys, mutilates, or conceals a record, document or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding;

or

(2) otherwise obstructs, influences, or impedes any official proceeding or attempts to do so.

18 U.S.C. § 1512(c).

Snow Ingredients, Inc. v. Snowizard, Inc., 833 F.3d 512, 524 n.14 (5th Cir. 2016)

App’x 610, 612 (5th Cir. 2019);

see also

Ocwen Loan Servicing, L.L.C. v. REOAM, L.L.C., 755 F. App’x 354, 359 (5th Cir. 2018)

Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges. PER CURIAM

(explaining that a lender’s notice to a borrower that the loan can be brought current by payment of amount in arrears rather than the full accelerated amount is sufficient to constitute abandonment);

King v. Select Portfolio Servicing, Inc., 740 F. App’x 814, 818 (5th Cir. 2018)

Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM

(lender’s notice to borrower stating that borrower could avoid acceleration by remitting only amount in arrears was sufficient to constitute abandonment);

Sexton v. Deutsche Bank Nat’l Tr. Co. for GSAMP Tr. 2007-FM2, Mortg. Pass-Through Certificates, Series 2007-FM2, 731 F. App’x 302, 308 (5th Cir. 2018)

Before BARKSDALE, DENNIS, and ELROD, Circuit Judges. PER CURIAM

(lender manifested unequivocal intent to abandon acceleration by requesting “only the amount overdue to cure the default” and advising borrower that it would accelerate in the future if default not cured);

see also

Leonard v. Ocwen Loan Servicing, L.L.C., 616 F. App’x 677, 679–80 (5th Cir. 2015)

HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges. PER CURIAM

(account statements demanding less than the full outstanding loan amount, plus letter to borrowers explicitly stating that they could avoid acceleration by remitting payment of amount in arrears, constituted abandonment).

There is no dispute that the Appellees sent Mr. Lamell four monthly mortgage statements requesting an amount less than the full amount of the loan.

But those are not enough, by themselves, to constitute abandonment as a matter of law.

We agree with the district court that there is at least a genuine dispute of material fact as to whether the Appellees provided Mr. Lamell with requisite notice to reflect their unequivocal intent to abandon their prior accelerations.

C.

Finally, we turn to the issue of subrogation.

The district court held that the Appellees were entitled to foreclose under the doctrines of contractual and equitable subrogation because their predecessor in interest—Home123, the original refinancing lender—advanced funds that were used to discharge existing liens on Mr. Lamell’s property.

Subrogation actions do not carry a specific statute of limitations.

See, e.g.,

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

“Instead, [subrogation] actions generally are subject to the same statute which would apply had the action been brought by the subrogee.”

Id. (citing Guillot v. Hix, 838 S.W.2d 230, 233 (Tex. 1992)).

Because the action at issue here is one for foreclosure, the Appellees’ subrogation claims accrued when their foreclosure claims accrued—four years after the underlying loan’s maturity.6

And a loan matures when it is accelerated.

See, e.g.,

Howard, 2021 WL 4236873, at *4;

Gen. Motors Acceptance Corp. v. Uresti, 553 S.W.2d 660, 663 (Tex. Civ. App.—Tyler 1977, writ ref’d n.r.e.)

(“‘Acceleration’ is a change in the date of maturity from the future to the present.”).

Thus, absent abandonment of acceleration, the statute of limitations for Appellees’ subrogation claims ran at the same time as it ran for their foreclosure claim.

Whether the Appellees have actionable foreclosure and/or subrogation claims is therefore an issue to be decided on remand, after the question of abandonment of acceleration has been resolved.

* * *

Accordingly, we AFFIRM that part of the district court’s order holding that a genuine dispute of material fact exists as to whether the

6 The Supreme Court of Texas has not decided definitively which maturity date controls:

that of the refinancing loan, or that of the original loan.

In PNC Mortgage v. Howard, No. 05-17-01484-CV, 2021 WL 4236873, at *4 (Tex. App.—Dallas Sept. 17, 2021, pet. filed), the Texas Court of Appeals held that the refinancing loan’s maturity date controls.

PNC filed a petition for review of that decision in the Supreme Court of Texas, which remains pending.

Fifth Circuit Intimidation Tactics in Foreclosure Appeals

Appellees abandoned their acceleration of the underlying loan’s maturity.

We REVERSE the district court’s determination that Mr. Lamell is barred by res judicata from asserting his statute of limitations affirmative defense,

as well as its determination that the Appellees are entitled to foreclosure under the theories of contractual and equitable subrogation.

This action is REMANDED for determination of the abandonment, foreclosure, and subrogation issues and for further proceedings not inconsistent with this opinion.7

U.S. Bank v. Lamell, No. 21-20326 (5th Cir. Apr. 7, 2022)

APR 7, 2022 | REPUBLISHED BY LIT: JUNE 5, 2022

Before Stewart, Clement, and Elrod, Circuit Judges.

PER CURIAM.[*]

Appellant Josef Lamell has not made the monthly mortgage payment on his house for over a decade.

Following a protracted state court proceeding initiated by Mr. Lamell , Appellees United States Bank National Association (USBNA) and PHH Mortgage Corporation (PHH) filed a declaratory judgment action in federal district court.

USBNA and PHH sought declarations that

(a) they were not time barred from foreclosing on Mr. Lamell’s property or collecting on the mortgage note;

(b) they were entitled to pay taxes on the property;

(c) they were entitled to non-judicial foreclosure;

and

(d) they were entitled to foreclosure under the theories of equitable and contractual subrogation.

The district court granted summary judgment in favor of USBNA and PHH with respect to their request for a declaration on each of the foregoing grounds, and Mr. Lamell timely appealed.

For the following reasons, we AFFIRM.

 

*          *          *

[*] Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

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.

U.S. Bank v. Lamell, No. 21-20326 (5th Cir. June 2, 2022)

JUNE 2, 2022 | REPUBLISHED BY LIT: JUNE 5, 2022

Why is Judge Kyle Duncan the motion judge?

Duncan would deny a valid Motion to Strike by Lamell.

Case Selection Page

Case Number
Title
Opening Date Last Docket
Entry
Originating Case Number
Origin
21-20326
U.S. Bank v. Lamell
06/23/2021 06/02/2022
14:02:50
0541-4 : 4:19-CV-2402
Southern District of Texas, Houston
Note:
* Click on Case No. to get Case Summary
* Click on Short Title to get Case Query
* Click on Originating Case No. to get Case Summary for Originating Case

 

PACER Service Center
Transaction Receipt
5th Circuit – Appellate – 06/05/2022 10:59:55

 

General Docket
United States Court of Appeals for the Fifth Circuit
Court of Appeals Docket #: 21-20326 Docketed: 06/23/2021
Termed: 06/02/2022
Nature of Suit: 4190 Other Contract Actions
U.S. Bank v. Lamell
Appeal From: Southern District of Texas, Houston
Fee Status: Fee Paid
Case Type Information:
     1) Private Civil Diversity
     2) Private
     3)
Originating Court Information:
     District: 0541-4 : 4:19-CV-2402
     Originating Judge: Gray H. Miller, U.S. District Judge
     Date Filed: 07/03/2019
     Date NOA Filed:      Date Rec’d COA:
     06/18/2021      06/18/2021
Prior Cases:
     None
Current Cases:
     None
Panel Assignment:      Not available

 

U.S. Bank National Association, as trustee for CSMC Mortgage-Backed Trust 2007-3
Plaintiff – Appellee
Christopher D. Kratovil, Esq.
Direct: 214-462-6458
Email: ckratovil@dykema.com
Fax: 214-462-6401
[COR LD NTC Retained]
Dykema Gossett, P.L.L.C.
Suite 4200
1717 Main Street
Comerica Bank Tower
Dallas, TX 75201Amelia Marquis, Attorney
Direct: 214-462-6426
Email: amarquis@dykema.com
[COR NTC Retained]
Dykema Gossett, P.L.L.C.
Suite 4200
1717 Main Street
Comerica Bank Tower
Dallas, TX 75201
PHH Mortgage Corporation, Individually as Successors in Interest to Ocwen Loan Servicing
Plaintiff – Appellee
Christopher D. Kratovil, Esq.
Direct: 214-462-6458
[COR LD NTC Retained]
(see above)Amelia Marquis, Attorney
Direct: 214-462-6426
[COR NTC Retained]
(see above)
v.
Josef M. Lamell, also known as J. M. Arpad Lamell
Defendant – Appellant
Josef M. Lamell
Direct: 713-857-2483
Email: lamell@alum.mit.edu
[NTC Pro Se]
5131 Glenmeadow Drive
Houston, TX 77096

U.S. Bank National Association, as trustee for CSMC Mortgage-Backed Trust 2007-3; PHH Mortgage Corporation, Individually as Successors in Interest to Ocwen Loan Servicing,

Plaintiffs – Appellees

v.

Josef M. Lamell, also known as J. M. Arpad Lamell,

Defendant – Appellant

06/23/2021  Open Document
2 pg, 164.21 KB
PRIVATE CIVIL DIVERSITY CASE docketed. NOA filed by Appellant Mr. Josef M. Lamell [21-20326] (ABT) [Entered: 06/23/2021 03:27 PM]
06/25/2021  Open Document
4 pg, 125.54 KB
INITIAL CASE CHECK by Attorney Advisor complete, Action: Case OK to Process. [9605955-2] Initial AA Check Due satisfied. [21-20326] (JMW) [Entered: 06/25/2021 03:11 PM]
07/07/2021 ELECTRONIC RECORD ON APPEAL REQUESTED from District Court for 4:19-CV-2402. Electronic ROA due on 07/22/2021. [21-20326] (DMS) [Entered: 07/07/2021 08:03 AM]
07/07/2021 ELECTRONIC RECORD ON APPEAL FILED. Admitted Exhibits on File in District Court? No. Video/Audio Exhibits on File in District Court? No Electronic ROA deadline satisfied. [21-20326] (MRW) [Entered: 07/07/2021 03:42 PM]
07/07/2021  Open Document
4 pg, 134.26 KB
BRIEFING NOTICE ISSUED A/Pet’s Brief Due on 08/16/2021 for Appellant Josef M. Lamell. [21-20326] (MRW) [Entered: 07/07/2021 03:43 PM]
07/08/2021  Open Document
2 pg, 70.65 KB
TRANSCRIPT ORDER received from Appellant Mr. Josef M. Lamell advising transcript unnecessary; no hearings [21-20326] (CCR) [Entered: 07/08/2021 12:09 PM]
07/13/2021  Open Document
2 pg, 337.96 KB
APPEARANCE FORM for the court’s review. Lead Counsel? Yes. [21-20326] (Christopher D. Kratovil ) [Entered: 07/13/2021 05:58 PM]
07/14/2021  Open Document
2 pg, 507.24 KB
APPEARANCE FORM for the court’s review. Lead Counsel? No. [21-20326] (Amelia Marquis ) [Entered: 07/14/2021 09:10 AM]
07/14/2021  Open Document
1 pg, 67.09 KB
Attorney Christopher D. Kratovil is advised to resubmit an appearance form. [21-20326] (CJM) [Entered: 07/14/2021 10:19 AM]
07/14/2021  Open Document
1 pg, 52.55 KB
Attorney Amelia Marquis is advised to submit a proper DKT-5A form for appearance of counsel. [21-20326] (LBM) [Entered: 07/14/2021 04:15 PM]
07/16/2021  Open Document
5 pg, 39.83 KB
MOTION filed by Attorney Mr. Mark Douglas Cronenwett for Appellees PHH Mortgage Corporation and U.S. Bank National Association to withdraw as counsel [9621127-2]. Date of Service: 07/16/2021 via email – Attorney for Appellee: Cronenwett; US mail – Appellant Lamell [21-20326] (Mark Douglas Cronenwett ) [Entered: 07/16/2021 03:36 PM]
07/21/2021  Open Document
1 pg, 73.4 KB
CLERK ORDER granting Motion to withdraw as counsel filed by Mr. Mark Douglas Cronenwett [9621127-2] [21-20326] (SDH) [Entered: 07/21/2021 07:50 AM]
07/22/2021  Open Document
1 pg, 175.51 KB
APPEARANCE FORM for the court’s review. Lead Counsel? Yes. [21-20326] (Christopher D. Kratovil ) [Entered: 07/22/2021 05:04 PM]
07/22/2021  Open Document
1 pg, 730.2 KB
APPEARANCE FORM for the court’s review. Lead Counsel? No. [21-20326] (Amelia Marquis ) [Entered: 07/22/2021 05:09 PM]
07/23/2021 APPEARANCE FORM FILED by Attorney(s) Amelia Marquis for party(s) Appellee U.S. Bank National Association Appellee PHH Mortgage Corporation, in case 21-20326 [21-20326] (JMW) [Entered: 07/23/2021 12:44 PM]
07/23/2021 APPEARANCE FORM FILED by Attorney(s) Christopher D. Kratovil for party(s) Appellee U.S. Bank National Association Appellee PHH Mortgage Corporation, in case 21-20326 [21-20326] (JMW) [Entered: 07/23/2021 12:49 PM]
08/05/2021  Open Document
5 pg, 273.05 KB
UNOPPOSED MOTION filed by Appellant Mr. Josef M. Lamell for leave to file electronically as a pro se party [9636874-2]. [21-20326] (RLL) [Entered: 08/06/2021 11:01 AM]
08/05/2021  Open Document
8 pg, 363.79 KB
UNOPPOSED MOTION filed by Appellant Mr. Josef M. Lamell to extend time to file brief as appellant [9636876-2]. [21-20326] (RLL) [Entered: 08/06/2021 11:04 AM]
08/09/2021  Open Document
1 pg, 73.25 KB
CLERK ORDER granting Motion for leave for pro se to file electronically filed by Appellant Mr. Josef M. Lamell [9636874-2]; granting Motion to extend time to file appellant’s brief filed by Appellant Mr. Josef M. Lamell [9636876-2] A/Pet’s Brief deadline updated to 10/05/2021 for Appellant Josef M. Lamell [21-20326] (RLL) [Entered: 08/09/2021 10:20 AM]
10/06/2021  Open Document
167 pg, 12.56 MB
UNOPPOSED MOTION filed by Appellant Mr. Josef M. Lamell for leave to file brief and record excerpts out of time [9684065-2] – Brief Tendered? Yes. Date of service: 10/06/2021 [21-20326] (RLL) [Entered: 10/07/2021 01:08 PM]
10/08/2021  Open Document
1 pg, 73.26 KB
CLERK ORDER granting Motion to file brief out of time filed by Appellant Mr. Josef M. Lamell [9684065-2] [21-20326] (RLL) [Entered: 10/08/2021 09:52 AM]
10/08/2021  Open Document
53 pg, 467.57 KB
APPELLANT’S BRIEF FILED by Mr. Josef M. Lamell. # of Copies Provided: 0. A/Pet’s Brief deadline satisfied. (PAPER COPY REQUIREMENT REMAINS SUSPENDED; PAPER COPIES WILL BE REQUESTED WHEN NEEDED) Appellee’s Brief due on 11/08/2021 for Appellees PHH Mortgage Corporation and U.S. Bank National Association [21-20326] (RLL) [Entered: 10/08/2021 09:58 AM]
10/08/2021  Open Document
106 pg, 9.86 MB
RECORD EXCERPTS FILED by Appellant Mr. Josef M. Lamell. # of Copies Provided: 0. (PAPER COPY REQUIREMENT REMAINS SUSPENDED; PAPER COPIES WILL BE REQUESTED WHEN NEEDED) [21-20326] (RLL) [Entered: 10/08/2021 10:06 AM]
11/03/2021  Open Document
4 pg, 25.14 KB
UNOPPOSED LEVEL 1 EXTENSION REQUESTED by Appellee U.S. Bank National Association for filing Appellee’s Brief until 12/06/2021 [21-20326] (Christopher D. Kratovil ) [Entered: 11/03/2021 03:00 PM]
11/03/2021 EXTENSION RECEIVED for Appellees PHH Mortgage Corporation and U.S. Bank National Association. Extension Granted to and including 12/08/2021. E/Res’s Brief deadline updated to 12/08/2021 for Appellees PHH Mortgage Corporation and U.S. Bank National Association [21-20326] (RLL) [Entered: 11/03/2021 04:31 PM]
12/09/2021  Open Document
61 pg, 325.67 KB
DOCUMENT RECEIVED – NO ACTION TAKEN. No action will be taken at this time on the brief of appellees received from Appellees PHH Mortgage Corporation and U.S. Bank National Association because document was filed out of time. Miscellaneous deadline updated to 12/23/2021 for Appellees PHH Mortgage Corporation and U.S. Bank National Association [21-20326] (RLL) [Entered: 12/09/2021 09:56 AM]
12/14/2021  Open Document
66 pg, 278.9 KB
UNOPPOSED MOTION for leave to file brief out of time [9734482-3] – Brief Tendered? Yes. Date of service: 12/14/2021 [21-20326] REVIEWED AND/OR EDITED – The original text prior to review appeared as follows: UNOPPOSED MOTION filed by Appellees PHH Mortgage Corporation and U.S. Bank National Association to extend time to return sufficient brief until [9734482-2], for leave to file brief out of time [9734482-3] – Brief Tendered? Yes. Date of service: 12/14/2021 via email – Attorney for Appellees: Kratovil, Marquis; Appellant Lamell [21-20326] (Christopher D. Kratovil ) [Entered: 12/14/2021 06:11 PM]
12/16/2021  Open Document
1 pg, 69.09 KB
CLERK ORDER granting Motion to file brief out of time filed by Appellees U.S. Bank National Association and PHH Mortgage Corporation [9734482-3] [21-20326] (RLL) [Entered: 12/16/2021 11:34 AM]
12/16/2021  Open Document
61 pg, 255.77 KB
APPELLEES’ BRIEF FILED by PHH Mortgage Corporation and U.S. Bank National Association. # of Copies Provided: 0. E/Res’s Brief deadline satisfied. (PAPER COPY REQUIREMENT REMAINS SUSPENDED; PAPER COPIES WILL BE REQUESTED WHEN NEEDED) Reply Brief due on 01/06/2022 for Appellant Josef M. Lamell [21-20326] (RLL) [Entered: 12/16/2021 11:48 AM]
12/20/2021  Open Document
7 pg, 296.87 KB
UNOPPOSED MOTION filed by Appellant Mr. Josef M. Lamell to extend time to file reply brief until 02/07/2022 [9738435-2]. Date of service: 12/20/2021 via email – Attorney for Appellees: Kratovil, Marquis; Appellant Lamell [21-20326] (Josef M. Lamell ) [Entered: 12/20/2021 02:09 PM]
12/20/2021  Open Document
1 pg, 74.6 KB
CLERK ORDER granting in part Motion to extend time to file reply brief filed by Appellant Mr. Josef M. Lamell [9738435-2] Reply Brief deadline updated to 01/20/2022 for Appellant Josef M. Lamell [21-20326] (CCR) [Entered: 12/20/2021 03:59 PM]
01/20/2022  Open Document
35 pg, 993.96 KB
APPELLANT’S REPLY BRIEF FILED. # of Copies Provided: 0. Reply Brief deadline satisfied. (PAPER COPY REQUIREMENT REMAINS SUSPENDED; PAPER COPIES WILL BE REQUESTED WHEN NEEDED) [21-20326] REVIEWED AND/OR EDITED – The original text prior to review appeared as follows: APPELLANT’S REPLY BRIEF FILED by Mr. Josef M. Lamell. Date of service: 01/20/2022 via email – Attorney for Appellees: Kratovil, Marquis; Appellant Lamell [21-20326] (Josef M. Lamell ) [Entered: 01/20/2022 10:11 PM]
01/20/2022  Open Document
7 pg, 307.28 KB
OPPOSED MOTION filed by Appellant Mr. Josef M. Lamell brief [9759885-2]. Date of service: 01/20/2022 via email – Attorney for Appellees: Kratovil, Marquis; Appellant Lamell [21-20326] (Josef M. Lamell ) [Entered: 01/20/2022 10:16 PM]
01/21/2022  Open Document
2 pg, 138.74 KB
COURT ORDER denying Motion to strike portion of brief filed by Appellant Mr. Josef M. Lamell [9759885-2] [21-20326] (RLL) [Entered: 01/21/2022 02:43 PM]
02/04/2022  Open Document
2 pg, 93.57 KB
PAPER COPIES REQUESTED for the Appellant Brief filed by Appellant Mr. Josef M. Lamell in 21-20326 [9684763-2], Record Excerpts filed by Appellant Mr. Josef M. Lamell in 21-20326 [9684776-2], Appellee Brief filed by Appellees U.S. Bank National Association and PHH Mortgage Corporation in 21-20326 [9736116-2], Appellant Reply Brief filed by Appellant Mr. Josef M. Lamell in 21-20326 [9759884-2]. Paper Copies of Brief due on 02/09/2022 for Appellant Josef M. Lamell and Appellees PHH Mortgage Corporation and U.S. Bank National Association.. Paper Copies of Record Excerpts due on 02/09/2022 for Appellant Josef M. Lamell. [21-20326] (CCR) [Entered: 02/04/2022 12:04 PM]
02/14/2022 Paper copies of Appellee Brief filed by Appellees U.S. Bank National Association and PHH Mortgage Corporation in 21-20326 received. Paper copies match electronic version of document? Yes # of Copies Provided: 7. Paper Copies of Brief due deadline satisfied. [21-20326] (DMS) [Entered: 02/15/2022 08:26 AM]
02/16/2022 Paper copies of Appellant Brief filed by Appellant Mr. Josef M. Lamell in 21-20326 received. Paper copies match electronic version of document? Yes # of Copies Provided: 7. Paper Copies of Brief due deadline satisfied. [21-20326] (DMS) [Entered: 02/17/2022 10:29 AM]
02/16/2022 Paper copies of Appellant Reply Brief filed by Appellant Mr. Josef M. Lamell in 21-20326 received. Paper copies match electronic version of document? Yes # of Copies Provided: 7. [21-20326] (DMS) [Entered: 02/17/2022 10:37 AM]
02/16/2022 Paper copies of Record Excerpts filed by Appellant Mr. Josef M. Lamell in 21-20326 received. Paper copies match electronic version of document? Yes # of Copies Provided: 4. Paper Copies of Record Excerpts due deadline satisfied. [21-20326] (DMS) [Entered: 02/17/2022 11:07 AM]
04/07/2022 WITHDRAWN UNPUBLISHED OPINION FILED. [21-20326 Affirmed ] Judge: CES , Judge: EBC , Judge: JWE. Mandate issue date is 04/29/2022 [21-20326] (NFD) [Entered: 04/07/2022 09:28 AM]
04/07/2022 WITHDRAWN JUDGMENT ENTERED AND FILED. Costs Taxed Against: Defendant-Appellant. [21-20326] (NFD) [Entered: 04/07/2022 09:32 AM]
04/21/2022  Open Document
28 pg, 846.79 KB
PETITION for rehearing [9829206-2] Number of Copies: 0. (PAPER COPY REQUIREMENT REMAINS SUSPENDED; PAPER COPIES WILL BE REQUESTED WHEN NEEDED) Mandate issue date canceled. Date of Service: 04/21/2022 [21-20326] REVIEWED AND/OR EDITED – The original text prior to review appeared as follows: PETITION filed by Appellant Mr. Josef M. Lamell for rehearing [9829206-2]. Date of Service: 04/21/2022 via email – Attorney for Appellees: Kratovil, Marquis; Appellant Lamell [21-20326] (Josef M. Lamell ) [Entered: 04/21/2022 06:53 PM]
06/02/2022 OPINION WITHDRAWN. [9817875-2], [9817886-2] [21-20326] (CCR) [Entered: 06/02/2022 01:52 PM]
06/02/2022  Open Document
18 pg, 222.51 KB
UNPUBLISHED OPINION FILED. [21-20326 Affirmed in Part ] Judge: CES , Judge: EBC , Judge: JWE Mandate issue date is 06/24/2022; denying as moot Petition for rehearing filed by Appellant Mr. Josef M. Lamell [9829206-2] [21-20326] (CCR) [Entered: 06/02/2022 01:58 PM]
06/02/2022  Open Document
2 pg, 64.99 KB
JUDGMENT ENTERED AND FILED. Costs Taxed Against: each party to bear own costs. [21-20326] (CCR) [Entered: 06/02/2022 02:02 PM]

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TO THE HONORABLE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT:

Appellant, Josef M. Lamell (“Lamell”), respectfully seeks a panel rehearing of this Court’s per curiam Opinion of April 7, 2022 because its primary authorities cited are unavailing in light of materially distinguishable facts and circumstances central to this appeal.

Following the remand of the key case relied on by this Court, the Fifth Court of Appeals (Dallas) issued its opinion concluding that equitable subrogation cannot be invoked to conduct foreclosure, which is exactly contrary to this Court’s Opinion.

This contrary authority—not considered by this Court—is now the subject of a pending second petition for review at the Supreme Court of Texas which has requested full merits briefing to aid its ultimate disposition of the petition.

In further support, Lamell respectfully shows:

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.

1 The district court determined that because Appellees “have failed to present evidence of an unequivocal intent to abandon the prior accelerations, the Court cannot find as a matter of law that the statute of limitations is unexpired.” (ROA.1493¶1)

This determination effectively rendered moot Appellees’ years-after-limitations-expired issued notices of default and acceleration of July 2, 2019 (ROA.543-46) and August 16, 2019 (ROA.548) respectively.

2 Howard II reversed in part the Dallas court’s judgment declaring PNC’s equitable-subrogation rights unenforceable because PNC had been dilatory in enforcing its own lien.

It remanded back to the Dallas court the Howards’ claim that language in their deed of trust precludes PNC’s subrogation rights and their claim in the alternative that PNC’s subrogation claims are also time- barred (Howard II, 616 S.W.3d at 586)

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

3 Zepeda v. Fed. Home Loan Mortg. Corp., 935 F.3d 296, 301 (5th Cir. 2019); Fed. Home Loan Mortg. Corp. v. Zepeda, 601 S.W.3d 763, 764 (Tex. 2020)

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.

4 PNC argues that, even though the subrogation lien claim is triggered by the due date of the original loan, the time within which to bring the lien claim is limited to the period in which the refinancing note is “collectable,” which is six years after the note matures or its maturity is acceleration.

Clearly, upon expiration of the six-year limitations for suing to collect on the note, the note becomes “uncollectable.”

(Howard III, No. 05-17-01484-CV at 8)

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

5 It is well settled in Texas that the mortgage follows the Note.

See Davidson v. F.D.I.C. 44 F.3d 246, (5th Cir. 1995) (where the debt was barred by limitations, the foreclosure sale under a deed of trust was “void”);

Rudolph v. Hively,188 S.W. 721, 722-23 (Tex. Civ. App. 1916, writ ref’d)

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

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