law-home-equity-loans | homestead law cases | promissory note suits | liens lien validity
TEXAS SUPREME COURT DECISIONS: HOME-EQUITY LOANS
Lasalle Bank Nat'l Assn. v. White, No. 06-1016, 246 SW3d 616 (Tex. Dec. 21, 2007)(per curiam)
(agricultural homestead, home-equity loan, lien validity)
LASALLE BANK NATIONAL ASSOCIATION, A/K/A LASALLE NATIONAL BANK, AS TRUSTEE AND LASALLE
NATIONAL BANK, AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT DATED JUNE 1,
1999, SERIES 1999-2 v. LORAE WHITE AND GERALD GEISTWEIDT; from Mason County; 4th district
(04-05-00548-CV, ___ S.W.3d ___, 05/03/2006)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petitions for review and without
hearing oral argument, the Court affirms in part and reverses in part the court of appeals' judgment and
remands the case to the trial court.
COURT OF APPEALS CASES IN WHICH SUPREME COURT DENIED REVIEW
TAMMY ELKINS v. BANK OF AMERICA, N.A.; from Dallas County; 5th district (05-06-00065-CV, 232 SW3d
345, 08-15-07, pet. denied Jun 2008) (Justice Johnson not sitting)(home equity loan, validity of lien,
finality)(suit for declaration that home equity loan and resulting lien are void because the loan fails to comply
with the home equity loan provisions of the Texas Constitution)
This appeal from cross-motions for summary judgment arises out of a suit brought by Michael and Tammy
Curry seeking a declaration that their Bank of America, N.A. home equity loan and resulting lien are void
because the loan fails to comply with the home equity loan provisions of the Texas Constitution. See
Tex. Const. art. XVI, §50(a)(6); Tex. Civ. Prac. & Rem. Code Ann. §37.001-.11 (Vernon 1997 & Supp. 2006).
In the course of the proceedings, the trial court signed three judgments. The first one, signed October 18,
2005, dismissed the Bank's counterclaims and rendered final a September 19, 2005 summary judgment in
favor of the Bank on the Currys' claims.
ground supports the ruling. Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005).
Based on the home equity loan provisions, to be entitled to a declaration that their home equity
loan is invalid and entitled to summary judgment as a matter of law, the Currys had to conclusively
establish the loan failed to comply with the constitutional requirements, they noticed the Bank, and the Bank
failed to timely cure upon being noticed. See Tex. Const. art. XVI, §50(a)(6)(Q)(x), (c); Tex. Civ. Prac. &
Rem. Code Ann. §§ 37.001-.011 (providing for declaratory actions); Adams, 307 B.R. at 554. No dispute
exists that the loan failed to comply with at least one requirement-that it be closed at the office of the lender,
an attorney, or a title company-nor that the Bank offered to cure this defect, as well as any other defect, on
June 16, 2004, but did not tender the cure. As such, whether the Currys met their burden turns on whether
they provided the Bank notice, and if they did, whether the Bank's offer to cure fulfilled its obligation to
cure. In making this determination, we construe the home equity loan provisions together giving effect to
their plain language and harmonizing them if possible to avoid rendering any provision meaningless or
inoperative. Doody, 49 S.W.3d at 344.
LACK OF PROPER NOTICE. Applying the appropriate standard, we conclude the Currys failed to meet their
burden because they did not conclusively establish they noticed the Bank.
DANIEL K. FIX AND BARBARA J. FIX v. FLAGSTAR BANK, FSB; FIRST AMERICAN TITLE INSURANCE
COMPANY OF TEXAS AND FIRST HORIZON HOME LOAN CORPORATION; from Denton County; 2nd
district (02-07-00030-CV, 242 SW3d 147, 11-21-07, pet. denied June 2008) (home equity loan, traditional
and NE-MSJ, DTPA, retroactive application of constitutional amendment)