U.S. Bank v. Lamell ( 2022 )

Case: 21-20326 Document: 00516341782 Page: 1 Date Filed: 06/02/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
June 2, 2022
No. 21-20326 Lyle W. Cayce
Clerk
U.S. Bank National Association, as trustee for CSMC Mortgage-
Backed Trust 2007-3; PHH Mortgage Corporation, individually as
successor in interest to Ocwen Loan Servicing,
Plaintiffs—Appellees,
versus
Josef M. Lamell, also known as J. M. Arpad Lamell,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-2402
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2022), is WITHDRAWN and the following opinion is SUBSTITUTED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.
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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. 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opinion should not be published and is not precedent except under the limited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.
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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.
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.
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.”
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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.
Despite the July 2, 2019 notice of foreclosure, Mr. Lamell still did
not cure his default. 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.
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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.
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
2
The district court construed Mr. Lamell’s motion as a Rule 60(b) motion for relief
from a final judgment, order, or proceeding.
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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. So, “we
must make an ‘Erie guess’ as to how [it] would rule upon the issue[.]” Am.
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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
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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).
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(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
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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,
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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
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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.
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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);
Colbert, 850 F. App’x at 875; Lyons v. Select Portfolio Servicing Inc., 748 F.
5Mr. 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.
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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) (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) (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) (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) (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—
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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.
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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
7
In light of this holding, we need not rule on the district court’s denial of Mr.
Lamell’s Rule 60(b) motion for a new trial.
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