Id. at 909. The court of appeals, relying on Pri ester v. JP Morgan Chase Bank, N.A. , 708 F.3d 667 (5th Cir. 2013) and Williams v. Wachovia Mortgage Corp. , 407 S.W.3d 391, 391 (Tex.App.—Dallas 2013, pet. denied), agreed that because section 50(a)(6)(Q)(x) allowed a lien holder to cure a defect under section 50(a)(6)(B), the lien was merely voidable. 449 S.W.3d at 908
The residual four-year statute of limitations applies to claims that a lender violated constitutional provisions governing home equity loans. Williams v. Wachovia Mortg. Corp., 407 S.W.3d 391, 394–95 (Tex.App.-Dallas 2013, pet. denied) (applying residual limitations period to ex-spouse's claim that lender failed to obtain her consent before extending home equity loan); see also Tex. Civ. Prac. & Rem.Code Ann. § 16.051 (West 2008) (four-year statute applies to actions for which there is no express limitations period). Appellees bore the burden on summary judgment to prove conclusively the elements of their limitations defense.
HSBC and Ocwen respond that the Woods' constitutional claims are barred by the four-year residual statute of limitations. Relying on the Dallas Court of Appeals' decision in Williams v. Wachovia Mortg. Corp., 407 S.W.3d 391 (Tex.App.-Dallas 2013, pet. denied), and the Fifth Circuit Court of Appeals' decision in Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667 (5th Cir.2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 196, 187 L.Ed.2d 256 (2013), they contend a lien that violates section 50 (a)(6) is voidable. They further assert that section 50 (a)(6)(Q)(x) allows a lender to cure a lien that would otherwise be invalid.
Id. The lienholders rely on the Fifth Circuit Court of Appeals' decision in Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667 (5th Cir.2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 196, 187 L.Ed.2d 256 (2013), and the Dallas Court of Appeals' decision in Williams v. Wachovia Mortgage Corp., 407 S.W.3d 391 (Tex.App.-Dallas 2013, pet. denied), in support of their claim that Hardesty's constitutional claim is barred by the four-year statute of limitations. They contend that a lien that violates Section 50(a)(6) is voidable (not void) because Article XVI, Section 50(a)(6)(Q)(x) of the Texas Constitution allows a lender to cure a lien that would otherwise be invalid.
Sections 50(a)(6)(A)-(Q) of the Texas Constitution govern home equity liens, and include various requirements governing such liens, such as the requirement the amount of a home equity loan not exceed eighty percent of the fair market value of the property on the date the loan was offered. See TEX. CONST. art. XVI, § 50(a)(6)(B); Williams v. Wachovia Mortg. Corp., 407 S.W.3d 391, 394 (Tex. App.—Dallas 2013). Section 50(a)(6) of the Texas Constitution does not contain a specific limitations period; in Texas, where no express limitations period exists, the residual four-year statute of limitations applies.
On the contrary, several state intermediate appellate courts have adopted Priester's holding and affirmed its validity. See Williams v. Wachovia Mortg. Corp., 407 S.W.3d 391, 397 (Tex. App.—Dallas 2013, pet. denied) (adopting Priester's reasoning that "because a cure provision exists in the Texas Constitution, homestead liens that are contrary to the constitutional requirements are voidable rather than void from the start[.]") (emphasis in original); Santiago v. Novastar Mortg., Inc., 443 S.W.3d 462, 470 (Tex. App.—Dallas 2014) (explaining that Priester supports "our conclusion that liens created in violation of section 50(a)(6) were voidable rather than void.")
Prior to 2003, Section 50(a)(6)(Q)(x) provided that the lender had a reasonable time to cure violations of the loan requirements once given notice by the borrower. Williams v. Wachovia Mortg. Corp., 407 S.W.3d 391, 394 (Tex. App.—Dallas 2013, writ denied). There were no time limitations or specific requirements for curing a violation.
Plaintiffs do not object to this finding, and for this reason alone, the court finds Plaintiffs' claims should be dismissed. Turning to Plaintiffs' objection, the court notes that several Texas courts have adopted the reasoning set out by the Fifth Circuit in Priester v. JPMorgan Chase Bank, N.A., 708 F.3d 667 (5th Cir. 2013), and applied by the Magistrate Judge in this case. See Williams v. Wachovia Mortg. Corp., 407 S.W.3d 391 (Tex. App. - Dallas 2013, pet. denied) (following Priester); see also Wood v. HSBC Bank USA, N.A, No. 14-13-00389-CV, 2014 WL 3747618, at *4 (Tex. App. - Houston [14th Dist.] July 31, 2014, no pet. h.) (citing Williams and stating "We too find the Priester court's analysis persuasive not only because of its sound reasoning, but also because its conclusion comports with Texas Supreme Court precedent on the key distinction between a void and a voidable act[.]"); Santiago v. Novastar Mortg., Inc., No. 05-13-00619-CV, 2014 WL 4244068 (Tex. App. - Dallas Aug. 28, 2014, no pet. h.) (following Priester). The Fifth Circuit recently stated: [T]here has been no change in the law that would empower us to overturn the Priester decision.
On the contrary, subsequent Texas decisions have followed Priester's reasoning and validated its holding. Williams v. Wachovia Mortg. Corp., 407 S.W.3d 391, 397 (Tex. App.—Dallas 2013, pet. denied) ("We find the Fifth Circuit's analysis persuasive." (citing Priester, 708 F.3d at 674)).
In fact, subsequent Texas decisions have validated Priester's reasoning, finding "the Fifth Circuit's analysis persuasive." Williams v. Wachovia Mort. Corp., 407 S.W.3d 391, 397 (Tex. App.-Dallas 2013, pet. denied). The Texas Supreme Court denied review of the Williams decision, further emphasizing that Priester was rightly decided.