this the alexander case and the other recent cases that followed it all said that the deed of trust did conveying the consent of the spouse but the d trust in those cases expressly stated that the spouse and the parties were giving their consent to the transaction that is actually written out in a footnote  his wife pursuant to a power of return the wife of course did not appear in the transaction at all she had signed a plan of attorney in connection with the transaction two years before which in fact did close one month after she signed the power of their brief actually uses the word implied her consent from the words of the deed of trust that we are creating only obviously and implied consent is not in writing infer that the wife consented from the fact that her husband signed the deed trust both for itself and under our return for then we have to go back what did the deed of trust has some very limiting language in it and refinancings i mean it was it otherwise similar terms yes i have the money to process it yes she had in two thousand and five they had the exact same transaction two years before transaction so there's no implication that can be wrong as to her consent from that deed of trust then you can go back can we imply that she consented to the transaction because she executed the deed of trust two years before as you just pointed out the deed of trust i mean the power of attorney itself that is that it is limited to certain aspects of the transaction that are necessary to coach now we know it's not necessary for the wife or the spouse to close i mean to sad in order to close a transaction on the hopes that because they did it in  in our case the power of attorney was not effective to convey any consent because by its turn to did not include that you go back a step further and the power of attorney was that not executed with the formalities required of law and that one of the main formality being that it was not executed for the bill in the manner that if apart for the protection of the wife that what's the narrow holding you want from us i mean obviously the texas constitution is that issued how the commission is cetera so disappoint what's the narrow holding you're looking for loss here declare that the absence of or the val power attorney invalidated the entire transaction yes if the power of attorney is can be used for transactions as long as it's done with the proper safeguards to the to the spouse and institutional and that hasn't wasn't changed by law anything the court restated that the texas supreme court restated that just a month after i got involved in this case it did me like a ton of bricks  durable power of attorney can only be used one time nope not at all i'm just saying this durable power of attorney did not contemplate this transaction and it cannot be used as a basis for implying  the money paid pursuant to that transaction so you have to in that particular cause you have two different remedies one is there and there are both available to us one is  attorneys are these other transactions they're still living in the house and so forth a way we might not we know where we do agree with the equity that we're talking about understanding equities but lest we feel too short for the be you know it has to be calculated by the court below but if they can find a valid leaned back in the tunnel that they paid then they have a right to sever gate but they take foreclose and they do have to give credit against whatever their separation is for them they in three that we actually paid only know you know the the deed of trust has been has been changed and now i think i doubt this case is going to have a great deal of forward looking effect because all of the lenders understand you've got to put the consent in most of them do it as a separate document some of them do it as including that implied to consent to it so this is this is the issue that we see in the cases that the the the deed of trust simply doesn't have this words of consent and at the closing does not have any words of consent and that the power of attorney upon which the kind of holding it based didn't have any words of consent and it and it was not even part of the transaction this particular are asking this court to do is to disregard the constitutional and regulatory framework in place at the time the home equity loan was made to them turning first to subsection you of article sixteen section fifty of the texas constitution this is a safeguard provision and it authorizes the texas legislature the power to delegate to one or more state agencies the ability to interpret the regulatory  lender complies with the regulations then in place then that act is compliance with the constitution itself and given the forfeiture remedy that exists if a lender violates the texas constitution it is fundamentally important that they be allowed to rely upon the regulations in place as authorized by fifty year the texas legit legislature delegated to the texas finance commission and the credit union commission the authority to issue regulations that interpret the fifty six which is the home equity lending section of the texas constitution and they then issued section one fifty three point fifteen of the texas in the which authorizes the lender to accept a properly executed power of attorney that authorizes the attorney in fact execute closing documents on behalf of the owner now turning first to the argument raised by dr and attorney had to be executed at the office of an attorney lender or title company but honestly your honor i believe the plain language of the statute should control on that point first the statute uses the word except which necessarily something executed prior to the closing and properly executed is not synonymous with constitutionally valid if the finance commission and credit union commission wanted to include a restriction on where a power of attorney could be executed they could have included the specific locations in subsection to just as they did for example in subsection one of one fifty three point two thousand where they identify the specific location for the actual closing of the version of one to three point three fifteen that was in effect allow the power of attorney to be executed in a location other day and the office of an attorney lender or title company whilst would be racist and furthermore if you look at the post norwood amendment to section one to three point two fifteen which were made in order to get that statute in compliance with norwood language was added to one fifty three point fifteen which indicated the specific locations where a power of attorney needed to be solely with regard to the ruling in norwood that power of attorney now has to be executed in the office of a discusses section fifty you would like to talk about the history of it it talks about the reasoning behind it and basically says that given the forfeiture provision a better system exist whereby a lender can rely on regulations that it can follow in order to close a home equity loan instead of subjecting it slow to the risk of forfeiture in the development of a body of law through litigation that will ultimately tell stock make two arguments regarding the home equity loan documents that were used for the home equity loan at issue in this appeal the first is a more  loan must be made upon the written consent of an owner there is no mandated promulgated language that needs to be included in a document in order to evidence the consent and instead of saying i fear by you know voluntarily grant a lien on my homestead the lender bank of america should have instead said i fear by consent to grant a lien on the homestead and again there's just nothing that supports such a interpretation of the constitution or the regulations in place furthermore dr  least as far as dr food stock was concerned the execution of the home equity line contract in deed of trust and all the other documents he signed when making this two million dollar home equity loan evidence has voluntarily agreement and that the home equity loan has not contain the mandated forfeiture provision contained in the texas constitution and i think it's important to note that bank of america does not agree with that contention the lo notice that has a promulgated form in it needed to essentially be restated in the home equity lien contract in deed of trust however section g fifty g of the loan and leave that are being made pursuant to fifty a six and a home equity loan like many other forms of transactions is closed using multiple documents and you have to look at all of those documents together evidence and come to what the complete agreement of the parties is essentially the multiple references throughout the document that say the loan is being made pursuant to fifty six evidence that constitutional and regulatory arguments i will now turn to the power of attorney argument by frankly your order that durable power of attorney by the lock to start it is short relatively malaki stock executed that durable power of attorney she had been previously involved in five refinancing transactions of the home shape clearly was experienced in refinancing transactions and knew or should have known exactly what power she was delegating to her husband as her attorney in fact what's the best what's the most own point texas case that says what you just say about  memorandum opinion issued by the district court and what that court holton in says is that a power of attorney does have to be strictly construed in order to  is if a principle could after the fact are made could after the fact subjectively modified the objective unambiguous language in a power of attorney it would completely undermine the use of power attorneys because a third party such as bank of america could not rely on the grant of authority contained in the durable p now on the issue of the fact that this durable power of attorney was executed two years prior to the home equity loan question i think it's important to note that in the power of attorney itself is titled as being durable it is also in the refinance section of the power of attorney uses plurals to describe what could be executed by d fu stock the power of attorney does not have any expressed terminations expiration date the power of attorney does not reference any specific closure closing that it is being executed in connection with the power of attorney had been used back in two thousand and five without objection from the lock stock and as dr locked the stock can see the power of attorney was not revoked at the time the home equity loans  five or something so in that set of papers do you trust all the packaging it's in the mix for so when we get to the transaction and issues because it's bank of america it's another of a similar transaction that someone just pulled the documents forward as part of the home package here as opposed to ok here's a new power of attorney and hope out you know same i do understand the question i think due to the passage of time the record isn't clear but presumably case that the power of attorney was revoked when it was you so it was presumably still in effect regardless of whether it was recycled if you will pull it from the prior closing file or if it was a good painted by dr fu stock to the bank when he was closing the load was referred to closing documents was it referred to you by the closing documents yes it was in that sense that every single closing document signed by dr few stock was also individually was also signed by him as the power of attorney form a lock to stock clearly evidencing the intent that there was a power of attorney and the two thousand and seven p recorded copy of the power of attorney in the official public records of harris county which is where the property is located of so much said about the power of attorney the fact is the power of attorney was never used to grant a consent whether it was good or not good it wasn't used to the lender so the power of attorney arguments are really not i don't think up all that material because the power turning was never actually used to sign a consent we don't find a consent anywhere the second a notice that does not form any kind of a contract so therefore loan is not for closure eligible mike brown below we have a second thing though the forfeiture provision appears also and fifty  eleven this is a standalone it doesn't have anything to do with the notice it is that if a loan is closed without the consent of the spouses there shall be a forfeiture i had no foreclosure so i'm