case is an appeal from a summary judgment which was granted in which my client abe moss was the owner of a residential property in houston texas since september of two thousand and nine and the judgment declared that that property that he had purchased back in september of two thousand that it was there was a lien in favor of going to a bank which basically takes the property away from him because of the values that were involved the issues in this case or several  the first issue invokes involves the notice if any is to be given by a superior lienholder to an inferior lino or under texas law the second issue would be the application of texas  statutes which limit the time period in which you can contest a deed that was to my client in the final issue of course would be the issue the evidence was presented to the court as to joint banks issue and ownership of the note now there's a couple other matters i think they're very important for the court to consider in this case the dispute arises from a foreclosure of a lien it was a non judicial foreclosure it was from a private lender in texas so we have two private lenders and a non judicial foreclosure sale the second important matter is is that deutsche bank who are the plaintiffs in the in the lawsuit sought relief only out for a violation due process they didn't file originally they saw violations under the texas tax code but they abandoned it by filing it and the only issue before the court is whether or not there was a violation of due process in this case now texas law texas real estate law is extremely clear under texas law and decisions of this court i would point out eileen holder a superior lien holder inane john traditional foreclosure is not required to give notice reason and not been much recognized in texas practitioners but in security state bank the immediate court whatever the district that was did address it was that not a non judicial foreclosures  and it was not a non judicial foreclosure fell in a very important point of this is that both men and i and the security state bank case were judicial foreclosures but our law has said just availing yourself of the judgement state this is a nontraditional foreclosure sale between two private lenders ok so you're saying no state action that's your that's correct no state action that all the mennonite case the security state bank a security state bank case was  lawsuit filed by taxing authority in san antonio texas it was a lawsuit that was filed under the texas tax code there was a lawsuit filed and there was a tax bill conducted by the constable that constituted state action in this particular case this was nontraditional foreclosures to from a private lender the lender that foreclosures consolidate financial holdings what happened was originally in this case was the original homeowner mr  d there was no lawsuit it was found security state bank there was a lawsuit filed by the taxing authorities in this case it's a non judicial foreclosure the purpose or what somebody goes in bars money for is if the court wants to extend that to say well you borrowed money on your home or this piece of property paid or i r s taxes well then that makes a difference it shouldn't make any difference these were two independent loans that were made no state action no foreclosure you major no state action argument the judge was this case and you are ignoring in your grief even to make the arguments that you make no snow has not been helpful well obviously i could have probably done better but that's really that's what judge rosenthal ruled on and you didn't even i can give you cases where the texas supreme court has said you don't have to give notice to an inferior legal rights american savings versus music case five thirty one southwest second five eighty one the l bar case which is cited in my brief it's just clear that it's you don't have to give notice on a private non judicial foreclosure side and to extend that i would even give the this court a cite where it wasn't on leno there's little or somebody acquired an interest in the property and this court specifically said notice was not required to be given would be the lender of the trustee in the case would have to be described as a quote unquote state act of war and in this case it's consolidating involves financial is not a state actor there linder they were created there lien with a deed of trust and they foreclose that non judicial i think the state law that you're relying on doesn't draw this distinction the state law as you urged in your brief was that no notice is owed whether it's judicial or not i notice is  either no notices or the statute of limitations would would bar even had there been no notice right were it was between argument you made yes i also said that but did you accept that mennonite throws that into doubt court can or a state can enact certain limitations on due process you know statutes limitations of those types of statute you can limit someone to or take away someone's interest and property through a statue  limitation and in the texas legislature and acting the statute says you have to come in within a year to question the deed i would submit that that's a reasonable limitation that would be on that the mennonite case goes into more detail it's a it was a two year statute but it didn't pacifically say that to your statute by law is not sufficient it was remanded back to the to a lower court for that particular reason and i think that in this particular case the statute that was passed by the state legislature would be sufficient limitation and the justification that would be that they would have to comply with the two thousand and seven amendments to this  somehow this problem it's where if we were applying texas law the two thousand and seven to the tax transfer session well the parties seem to agree that we're this case it's pay state law controls is governed by the two thousand and six code yes ok and so my question is would the amendments have changed the notice requirements did they i couldn't find easily well they are under this type of a loan you have to come in as a home equity foreclosure an get you have an expedited process you have to file now to foreclose this type of lien yes it's been addressed and you now have to file it's exactly like a home equity foreclosure in texas you have to  does give you a fast track and you can serve the defendants by mail you a chance you have to serve even subordinate lien holders yes yes under the texas tax code you have is and yet that didn't exist in  that was not in effect at that time the law if you meant you must know the so much better because i was looking at thirty two zero six five b five and six and i still thought you would have to notify by mail a subordinate lien holder know you were suppose and what the amendment was a lane holder that with his record you're supposed to certify him but the lender could do a non judicial foreclosure sale in lieu of that without filing a lawsuit but the notice you didn't you were supposed to notify do i recall it yes yes or but it would seem to stand for a different proposition and we've just said well that case involved primarily it was decided on the issue that that case was decided on was that  it was a mineral interest and it was so difficult to track the mineral interest that they said that they couldn't put the burden upon the foreclosing party they couldn't figure out who the mineral  would be and who would be entitled to notice and it was decided on that issue least that's my recollection of the decision in that case it was it was just too difficult of a task to figure out who was entitle to notices because of  well i think you know what point we want to hear argument on may please the court your are turning first to the issues aside by counsel relating to whether or not this was a private action is opposed to state action it sort of belies the facts in terms of the origina counsel wants to assert that the he leaned that they foreclosed in two thousand and nine was not a tax lien were perfectly willing to go with that because that means that their lien which was originated in two thousand and six was originated three years after the lien that my client's holding is therefore subordinate lean in and of itself however and they are contending that they have a superior lien that extinguished my client's mean that it was that one which was foreclosed even and was gave title to then subsequently to d n why the facts in this case are abundantly clear the record it to fourteen shows that the mortgage lien issue that my client's hole was created on the very tenth two thousand and me that using the legal authority of the state even to have a new and usual for closure is some sort of state action but is that settled as that is the case law that says that receive notice of the sale as security state bank an american i have to find things american home protection versus perkel which is also cited in or anything demonstrate there's a reasonable distinction to be drawn between a record believe holder has no such obligation marsh has been paying taxes since two thousand and nine i don't know whether he has or not you know but let's assume he has office your client hasn't his position is that if we  for you to reclaim your interest you've got to pay him back those taxes what's your view on that that would be correct i'm not sure but what my client has actually had some of those taxes that you know it's simply not  nation you probably but it makes sense i guess ok move on to another question judge rosenthal applied mennonite as she did but but there was a little guarded language about you couldn't sit on your rights what's your view as to whether a lien holder could wait ten years and then collaterally attack what's the outer limit under men and i think once the rule holder becomes aware of the tax lien topsail then they have some  how important is this in your view of texas of the due process issue that this was an assignment and if we if we do wind up affirming sure we rely on that as our ours are made in connection with the honor as are to be honest the idea that there was no state action involved is not something that was argued or discussed much at the state court level at the at the district court level one discussed much in the appellate briefing either it was not because of the quote also on the we didn't believe it was had been brought up as an issue assuming that it was on the up to our content contention was based on their their belief that they had a subpoenaed lean that they had foreclosed and that therefore extinguished any interior liens that this was that they were the only way they could get there was by getting support but by having a tax lien that they were for i'll promise to be british councilman mentioned that somehow the fact that it's a tax lien with some kind of distinguish it that this is a foreclosure process the defect was in the foreclosure process itself this was not in any kind of statute that the process was under the deed of trust non judicial foreclosure and one case and i cited it briefly previously which is a rodriguez versus auckland case this was a two thousand and nine cases just south which you were actually on the panel at this time quoting from that case it says therefore quoting from the case therefore regardless of whether aqua knew of rodriguez's interest in the annalee property texas law imposes no requirement for awkward to provide notice to rodriguez i mean there's a do direct holding that someone that it wires in an interest to someone has an inferior interest there was no notice in a texas law to notify that person statute texas law doesn't require i mean texas foreclosure all which is fifty one point zero two of the texas property code does not require that does not require specifically under the law nobody's ever attacked that and it's been continuously said all you have to do is notify the debtor and those particular people that are limited in that issue so and one other thing about in terms of actual notice and things that we're saying that would qualify this particular case to is that when the tax lien is created notice it has to be given to the lender at that time so when it was created in two thousand and six gonzalez was required by the statute to give notice to the lean  over that time which was a large mortgage so the lender knew about it they knew about it under the law and they were would have been notified at that particular time and when you look at don't want the quarterly side of his that i think the evidence was totally insufficient to show that they have any in any interest in this loan at all because what they show is that there was a loan that was created back in two thousand and three argent mortgage was the payee under that note at that time no evidence until two thousand and nine and the only evidence they provided to the court was a recorded assignment corporate assignment that was recorded in the deed records of harris county texas well produced a note they never produced an affidavit saying we hold a note they never provided any evidence as to where the location of the original note is so basically there's really no evidence that they had anything but until two thousand and nine which was  i think it was when that was recorded was february of two thousand and nine six or seven months prior to the foreclosure sale that occurred in this particular case and four to five months before we were would have been recorded arg mortgage was the lender in this particular case they would have received the notice and in this particular case this deed of trust required escrow payment they required tax payments that were dark paper acquired by escrow there was an obligation for argued mortgage and subsequently deutsche bank an auckland to pay the taxes they had a contractual obligation to pay the taxes they were supposed to be collecting them and under that situation i think that poses a more of an important duty upon them to figure out what the heck's going on and to sit now in two thousand and sixteen and to realize that there's never been any i don't think regard has ever paid any taxes probably a period of twelve or thirteen years during that time period  we are in recess until to morrow morning