Texas Supreme Court Affirms a Lender’s Equitable Subrogation Rights Following Expiration of the Statute of Limitations on the Lender’s Lien
JAN 31, 2021 | REPUBLISHED BY LIT: FEB 2, 2021
Texas amended their own Constitution – as per Chief Justice Nathan Hecht’s own words (see following video below) – to protect Citizens homesteads.
In 2020, that changed with the certified question from the Fifth Circuit to the Texas Supreme Court in the case of Zepeda.
When the Texas Supreme Court said yes to equitable subrogation for lenders to steal homes in a new precedential opinion, it affirmed what former justices have always said about the states highest court – money buys justice in our court(s) and there is no bigger client than Wall Street banks and their entourage of rogue debt collecting lawyers and admonished nonbanks.
It’s the worst published case in recent history in Texas and it needs the legislative branch to immediately correct this travesty of justice against homeowners and citizens of Texas. It is an appalling opinion, which you can see applied to the PNC Bank v. Howard opinion below.
In that case, the foreclosure mill of BDF Law Group and Hopkins Law appealed a lower court decision against PNC and in favor of the homeowners, the Howards. However, when they appealed, Hopkins and BDF presented false and fabricated evidence which was rejected by the lower court judge. No sanctions or investigation was ever taken into this fraud on the court and the Howards.
The judiciary turned a blind eye to these fraudulent acts by the rogue attorneys and instead, rushed to write a published opinion which would help banks overturn their loss at the lower court. In order to do so they would have to violate the Texas Constitution and the protections assured to #WeThePeople who held HELOC loans.
This is legally corrupted case law and should be stricken down, quickly.
In the meantime, the crack that was left unanswered and applies in this case is the ‘inequitable conduct’ (see footnote 6 of TSC’s opinion) and LIT hopes the Howards will pursue this vigorously (e.g. unclean hands) against the bounty hunters at BDF Hopkins.
On January 29, 2021, the Texas Supreme Court confirmed that the voiding of a lender’s lien due to the expiration of the statute of limitations does not preclude the lender from foreclosing on a pre-existing lien under the doctrine of equitable subrogation.
PNC Mortg. v. Howard, ___ S.W.3d ___, 2021 WL 297579, at *1 (Tex. 2021) (per curiam).
This holding throws a lifeline to Texas lenders, especially those holding nonrecourse home-equity or reverse mortgage loans, and provides them with a powerful defense and significant foreclosure alternative in the event that limitations has run on their lien or their lien is unenforceable for some other reason.
The borrowers in Howard originally purchased a home with two purchase-money mortgages. Two years later, they refinanced those mortgages into a single loan secured by a lien on the property. Nearly all of the proceeds from the new loan were used to pay off the two purchase-money mortgages. The new lien was later assigned to PNC Mortgage, which accelerated the loan in June 2009, after the borrowers stopped making their payments and then failed to cure their default.
Meanwhile, the original lender initiated foreclosure proceedings. The borrowers challenged that foreclosure on the basis that the original lender no longer held the mortgage, and added PNC as a defendant. PNC counterclaimed seeking a foreclosure of its lien.
But concerned that the limitations period had already passed, PNC alternatively sought a judgment declaring its right to foreclose on the purchase-money liens through equitable subrogation. The court of appeals held that, to the extent PNC held equitably subrogated liens, those liens became unenforceable when PNC forfeited its own lien by failing to timely foreclose on it.
After the court of appeals’ opinion, the Texas Supreme Court decided Federal Home Loan Mortgage Corporation v. Zepeda, in which it explained that equitable subrogation “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.” 601 S.W.3d 763, 766 (Tex. 2020).
The Court also “observed that equitable-subrogation rights become fixed at the time the proceeds from a later loan are used to discharge an earlier lien[,]” and that “[a] lender’s negligence in preserving its rights under its own lien does not deprive the lender of its rights in equity to assert an earlier lien that was discharged using proceeds from the later loan.” Howard, 2021 WL 297579, at *3 (describing the Court’s holding in Zepeda).
The Court noted that a lender’s negligence may only be considered as part of the equitable-subrogation analysis in lien-priority cases. Id. (citing Zepeda, 601 S.W.3d at 767 n.17).
Applying Zepeda to the facts of the case before it, the Texas Supreme Court held that PNC’s failure to timely foreclose under its deed of trust did not bar its subrogation rights, and that those rights permit a lender to assert rights under a lien its loan satisfied when the lender’s own lien is infirm, regardless of the reason for such infirmity.
Texas lenders should find great comfort in both the holding and reasoning of Howard because it means they may still have an option to enforce a mortgage debt even after the lien securing that debt has been voided due to the running of limitations.
Given the large numbers of limitations cases ongoing in Texas, lenders should immediately take stock of such cases and, in consultation with competent counsel, determine where it would be appropriate and advisable to assert their equitable-subrogation rights in the alternative to foreclosure of their own lien.
In doing so, lenders should take care to ensure that the statute of limitations has not also run on the pre-existing lien to which they are subrogated by checking the maturity date of the pre-existing lien, and confirming that four years have not elapsed since that date.
JUSTICE GUZMAN did not participate in the decision.
A refinancing lender failed to foreclose its property lien within the statutory limitations period after the borrowers defaulted. The borrowers had used the proceeds from the refinancing to discharge two existing liens. Equitable subrogation “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.” Fed. Home Loan Mortg. Corp. v. Zepeda, 601 S.W.3d 763, 766 (Tex. 2020). Without the benefit of our decision in Zepeda, the court of appeals concluded that the refinancing lender’s failure to timely foreclose its lien precluded the lender from seeking recourse through equitable subrogation. S.W.3d . Because a lender’s forfeit of its lien does not preclude the lender’s equitable right to assert a pre-existing lien discharged with the proceeds from its loan, we reverse and remand.
Respondents John and Amy Howard purchased a home in 2003 with two purchase-money mortgages. Two years later, the Howards refinanced these mortgages with the Bank of Indiana,1 executing a note and deed of trust on the property in the bank’s favor. Using nearly all the proceeds from the Bank of Indiana loan, the Howards paid off the two existing mortgages on their property. The Bank of Indiana later assigned the note and deed of trust to Petitioner National City Mortgage Company, a subsidiary of National City Bank. National City Bank later merged with Petitioner PNC Mortgage.2
In 2008, the Howards stopped making payments on the note. In January 2009, National City Bank notified the Howards of their default and of its intent to accelerate the loan if the Howards did not cure it. Five months later, National City Bank sent the Howards notices of acceleration.
Meanwhile, the Bank of Indiana initiated foreclosure proceedings, despite its previous assignment of the note to National City Bank. The Howards challenged this foreclosure on the basis that the Bank of Indiana no longer held the mortgage on the property. The Howards also added PNC as a defendant. The Howards’ challenge was successful. The trial court declared the Bank of Indiana foreclosure void, leaving the Howards’ claims against PNC pending.
PNC then counterclaimed against the Howards, seeking foreclosure of its lien.3 But concerned by this time that the limitations period for foreclosure on its deed of trust had passed,4 PNC alternatively sought a judgment declaring its right to foreclosure of the underlying liens on the property through equitable subrogation. It alleged that the Howards had discharged those earlier liens with the proceeds from the note PNC held. PNC also separately sued the Howards, alleging breach of the loan agreement. The trial court consolidated the two cases. The parties then jointly moved for judgment based on stipulated facts. The trial court declared that PNC’s lien and note were unenforceable, and it rendered judgment that PNC take nothing on its claims against the Howards.
PNC appealed. Pertinent here, PNC argued that the Howards had used the proceeds from the PNC refinancing loan to discharge the existing mortgages, and as a result PNC has an equitable lien.
The court of appeals affirmed the trial court on this point, rejecting PNC’s assertion of an equitable right to enforce the two earlier liens. S.W.3d . The court of appeals weighed PNC’s equitable right of subrogation against what it deemed to be PNC’s negligent conduct: the Howards’ petition in 2010 had put PNC on notice that the wrong entity had foreclosed on the property, giving PNC three years within the limitations period to take corrective action. Id. In balancing the
enforceability of the existing lien against any equitable right to enforce a discharged lien, the court of appeals relied in part on the federal district court’s decision in Zepeda v. Federal Home Loan Mortgage Association, No. 4:16-cv-3121, 2018 WL 781666 (S.D. Tex. Feb. 8, 2018), and our opinion in Providence Institution for Savings v. Sims, 441 S.W.2d 516 (Tex. 1969). S.W.3d . The court of appeals held that, to the extent PNC held any equitable lien, it became unenforceable when PNC forfeited its own lien by failing to timely foreclose on it.5 S.W.3d .
Two months after the court of appeals’ opinion, the lender in the Zepeda case appealed to the United States Court of Appeals for the Fifth Circuit, which in turn certified the question to us: “Is a lender entitled to equitable subrogation, where it failed to correct a curable constitutional defect in the loan documents under § 50 of the Texas Constitution?” Zepeda v. Fed. Home Loan Mortg. Corp., 935 F.3d 296, 301 (5th Cir. 2019). We answered yes. Fed. Home Loan Mortg. Corp. v. Zepeda, 601 S.W.3d 763, 764 (Tex. 2020).
PNC petitioned this Court for review, solely contending that our opinion in Zepeda requires reversal. We agree.
The facts of Zepeda substantially mirror those in the case before us. In that case, Sylvia Zepeda purchased her homestead with a loan using the homestead as collateral, creating a mortgage lien. Id. Zepeda refinanced the debt four years later. Id. Zepeda used the proceeds from the refinancing to pay off the balance of the first loan. Id. Zepeda later notified the refinancing lender that its loan documents contained a constitutional defect, and she requested that
the lender cure the defect. Id. The refinancing lender sold the loan without curing the defect. Id. After the new note holder similarly failed to cure the defect, Zepeda sued in federal court to quiet title. Id. at 764–65. Despite the infirmity of its own lien, the note holder claimed that equitable subrogation permitted it to assert the earlier lien because the proceeds from the note it held had been used to discharge that lien. Id. at 765. The federal district court concluded that the note holder was not entitled to equitable subrogation because it negligently had failed to cure the constitutional defect in its loan documents. Id.; see Zepeda, 2018 WL 781666, at *8.
In answering the Fifth Circuit’s certified question, we observed that equitable-subrogation rights become fixed at the time the proceeds from a later loan are used to discharge an earlier lien. Zepeda, 601 S.W.3d at 766. A lender’s negligence in preserving its rights under its own lien thus does not deprive the lender of its rights in equity to assert an earlier lien that was discharged using proceeds from the later loan. See id. Although we considered the lender’s negligence in Sims, that analysis is limited to the lien-priority context. Id. at 767 n.17.
Applying Zepeda to this case, the court of appeals erred in concluding that PNC’s failure to timely foreclose under the deed of trust bars its subrogation rights.6 The availability of better credit terms and interest rates can make refinancing an attractive financial tool for borrowers. Subrogation operates as a hedge against the risk of refinancing the outstanding amount of an existing loan, opening this credit market to borrowers. Id. at 768. Subrogation permits a lender to assert rights under a lien its loan has satisfied when the lender’s own lien is infirm.
The Howards note that their original loan was a purchase-money mortgage unlike the home-equity loan at issue in Zepeda. This distinction does not remove PNC’s subrogation rights. Such rights, however, necessarily are limited by the conditions of the discharged lien.
Nor do we agree that a statutory default—PNC’s failure to take timely action on its deed of trust lien7—bars subrogation when a constitutional defect does not. See id. (reaffirming that the Texas Constitution “does not destroy the well-established principle of equitable subrogation.” (quoting LaSalle Bank Nat’l Ass’n v. White, 246 S.W.3d 616, 619 (Tex. 2007))).
The Howards raise two other challenges. They claim that language in their deed of trust precludes PNC’s exercise of subrogation rights. Alternatively, they assert that PNC’s subrogation claims are also time-barred. These arguments were presented to the court of appeals but not addressed in its opinion. We remand these issues to the court of appeals for its consideration of them. TEX. R. APP. P. 53.4.8
* * *
Without hearing oral argument, see TEX. R. APP. P. 59.1, we grant PNC’s petition for review. We reverse that portion of the court of appeals’ judgment declaring PNC’s equitable- subrogation rights unenforceable based on a determination that PNC was dilatory in enforcing its own lien. We remand to the court of appeals for further proceedings consistent with this opinion and with Federal Home Loan Mortgage Corp. v. Zepeda, 601 S.W.3d 763 (Tex. 2020).