or is all this pending what happens here below the action may or may not occur after a sale there's not been a sale and our contention is that the orders in error and actually boyd why understand that what i mean are they i'm at risk of being removed from their home before we render an opinion in this case not to my knowledge  trial court erred when it granted wilmington's motion for summary judgment seeking for closure of a texas home equity loan despite the lack of a constitutionally mandated term required for foreclosure eligibility i do want to distinguish here the texas supreme court said that the constitution doesn't regulate home equity loans it doesn't require these terms it only requires them if you want the remedy of foreclosure apple lease have tried changing our question about whether constitutionally mandated we're we're only saying it's constitutionally mandated if you want to remedy of a closure and you're saying it's constitutionally mandated even if it's cultural absolutely if the underlying loan includes specific terms and conditions that's what it leads with the texas constitution itself starts off with the proposition that whole homestead is protected from a forced sale unless the lien falls into one of seven or eight exceptions so they have the burden of proof proving that the lien falls into one of the exceptions and they're claiming it's a section fifty a six home equity but the recent supreme for clarification this case started out before the wooden groff focusses came out last may we were having to operate under the priest or decision because we were in federal court we were operating under the priest decision that had come out in two thousand and thirteen the priest or decision basically said that the homeowner couldn't challenge the validity of the home equity loan more than four years after origination the supreme court clearly says that's not the case you can challenge it any time according to woody which is another supreme court case that issued the same day and the priest or decision has been abrogated in the barry vs auckland case that came out last year sometime after wouldn't and my clients were the defendants our position is the plaintiffs have to prove if they're seeking the relief of foreclosure that they're entitled to the relief of foreclosure they have to have a foreclosure eligible loan they did not prove that they did not plead that the lane was valid they did not plead the existence of the terms of the original complaint which was superseded other complaint misidentify of the mortgagee the lender it had attached of trust that identified an instrument that it was not appear to be different than the note when they found in mid complaint they had similar problems with it but although it's not our burden to prove that the loan is not a home equity loan in our response to the motion for summary judgment we pointed out it was missing at least one of the terms required for a home equity loan to be foreclosure accelerated or at least as early as june the twenty second of two thousand and eleven and this lawsuit was filed in june the twenty fifth two thousand and fifteen that's four years and three days there's a four year statute limitations for  however we didn't agree that they had the you know low level right to rescind then the plaintiff's relies on the texas statute that only came into existence in june of two thousand and fifteen so it wasn't effective at the time although they asserted that it was retroactive there's nothing mr statute to suggest that it's retroactive and our position was that the loan wasn't celebrated more than four was affected and now we're accelerating by virtue of filing in a minute complaint because a texas you have to accelerate before you can foreclose the loan and so they claim that the filing of the mini complaint served as the acceleration well that's not going to work because the lane has a priest suit notice requirement and if the sections pacifically refers to the notice of acceleration having to be provided and so if your first a mini complaint is the notice of acceleration clearly that wasn't done before the suit was filed in their motion for summary judgment they argued something slightly different they argued that the original complaint was the notice of acceleration there's a problem with that it's true that texas law supports filing of a lawsuit as being the nose of acceleration but the problem is the deed of trust which there seek to enforce has a notice of grievance provision that says you will do this before you  only that it says you have to know this is have to be provided in accordance with paragraph fourteen which provides for if you put it in the mail it's deemed received when it's put in the mail but in any other method it's being received it's the notice has be deemed given when received well the way my client's got a notice of it was when they were served which was clearly after the lawsuit has been filed so our position was that they failed conditions precedent for filing this lawsuit and we argue notice but they didn't do our positions they didn't do anything of the unit trust my clients didn't grant of the deed of trust an opportunity for the winter to over and over again revoke its prior exercise of an option and  back again one of the reasons that statute was passed was because it wasn't clear that that was some unilateral white this statute was passed in two thousand and fifteen not part of two thousand and fifteen and second of all my clients always had the right to reinstate paragraph eighteen of the instrument says that they can pay all amounts to as if it weren't a fault and if they do that then they have the right to reinstate that's not something the lender can force them to do by taking th so from a class perspective nothing really ever changed they always had the right to reinstate regardless of what the lender did up until the time of foreclosure relief and my oversimplifying you're saying both under common law and under the leave once they say original terms are back in place then there were required to be two notices but only one occurred or is that over simplified i think if i may cliff clarify for myself i believe what you're saying is once the rescission was g yes they have to then said another notice under both lean terms in the law i believe so your honor because the statute you're going to i'm not disagreeing with you but you have a good texas case on that re notice requirement if there's an intervening rescission i have a case if i can send a letter to the court i didn't have it with me let's just if you know the site just i'd be appreciative ok i don't know what off the top my head but there is a case that says you need a notice again and second to that the statute itself says it's moreover as we cited an applebee's brief this court's more indecision was on the books which in turn cited the the context of believe it was out of texas that there is the interim unilateral right to resend it so all of that seems to me however to go first to the limitations argument and i think we're past the limitations argument here more pertinent issue visa v the acceleration is is the one the court presents and that is are we or are we not as the lender required under the loan documents to give serial notices  default and opportunity sure when it's absolutely undisputed that there have been already serial notices of default and opportunities to cure no cure ever having been affected were called back to the fact that you gave this notice of this it was pled as a failure of condition precedent but so we've got kind of this contractual analysis and we got to the contract with the contract says in separate default that's in the record relate to the same and ongoing default at least initially it starts with two thousand and eleven failure to make payment and subsequent notices of the fault  acceleration a withdrawal of that by virtue of the if you will or in type subsequent notice of the fault so that on the accelerator on excel the rates the prior one take the next step you do then have this this two thousand and twelve notice of acceleration which is then after a change in service or for the loan was rescinded by a letter now the note that speaks to acceleration and notice of acceleration the acceleration must occur in order to collect the net and that's that kind of the no it's an installment note so and texas law says that the filing recognized that moreover might have been done more neatly but it that's you know if it was the standard clear and unequivocal and so that the ogden case the borrowers got to know for certainty that can't be uncertainty and they get a letter saying you know consider this as though no acceleration took place correct i'm not disputing that that did indeed resend the acceleration but then they would logically not be aware they would have no notice that acceleration is taking place they get it when they get the lawsuit they're not entitled to it separately apart from the function of the following the lawsuit under the terms of this security or the at large they're simply not entitled to yet another paragraph they're focused on is a you need to give me notice of default and opportunity to cure before you go and file a lawsuit there's a whole separate paragraph prograf twenty one of the security agreement that speaks to an acceleration issue no carry no texas case that you're aware of requires re notice after rescission i'm not aware of any texas case that says you always have to read notice and excel aeration after receipt unless there is a contractual obligation to do so in fact there is no obligation under law to give notice of acceleration when you've got a waiver provision like we do in this no which is waiver demand waiver present and all those kinds of waivers so it's a matter of construction of the contract  all the terms working together as we do under the rules construction i submit to the court that the district court went through that process either apparently or presumptively and got it right that this contract does not require serial notices of acceleration and it certainly does not require it doesn't even require a notice of acceleration as a predicate filing suit by its terms that's a separate provision that says if i'm in the fall and need to tell me give me a chance that there was no breach of the contract and ere go there was no failure of condition precedent to filing suit so back then to what has been the primary  like it does say that there are certain terms of conditions that must be included but it doesn't articulate which of the terms and conditions that you might find in fifty six and elsewhere  that section fifty of the constitution that do or do not fall within that constitutional mandate or the ones that are required and i think we read once again the construction approach that we read the constitution and the words that the they the drafters utilize there you've got different sections you've got a six that goes through hugh and then you've got the q section that that starts out with a predicate it must be alone in order to be foreclosure eligible the term that perhaps my perspective a bit unfortunately that the texas supreme court elected to use but nonetheless a descriptive term to be for closure eligible there are certain requirements and in follow in would and in the one subsequent quite  ase that from the supreme court that's interpreted it stressed berger versus kyle i believe it does they use terminology like the constitution describes fifty six describes the type of a loan which is foreclosure eligible which is compliant with and you got in in q basic fifty six q starts out with must be made on condition  sections are replicated then under the on condition that and i think that that type of analysis where we we distinguish between those things which you can't do basically and those things which must do a is an important distinction and it's reiterated in the notice provision now not say suggesting that the notice provision which is in fifty g i'm not suggesting that that is the substantive law rather it's just a context part of the context secured by more than property other than your homestead you you can't have a lot you can only have a loan this made by a approved lender all those kinds of things and then a little bit deeper in provided that the security answer can be in a disclosure that the loan is a loan defined by fifty six article sixteen of texas constitution which of course ours does on multiple at multiple points might if the texas supreme court addresses this further down the road might be constitutionally required actually be written into the documentation some things i submit will be our constitution and somewhere in there are things that are or not in fact in the ruffle of the case which if i recall correctly was this court's on of them had since certified questions it decided at that language and i think it's clear from the drafting that language that says you must put into your note this forfeiture of light that's one of the required texas supreme court when it addressed those questions made some fairly bro statements and then said let's now narrow this down to the the questions before us and that in the provisions which apply and they went straight then down to that that language about forfeiture it's one of those provide it's one of those things that are mandated it's one of those conditions that whereas the home equity excuse me the homestead ag exemption issue which is the only issue that they argued as an example and let's be clear there is no allegation in any way to host suggestion that this residential piece of property or travel to travis county was ever aggie exempt there's no indication that was ever  means to require something it will say so and has said so on condition that this is not one of those on condition that total side not to affect the course decision per se but that is is repealed effective provision is repealed effective january one of two thousand and eighteen obviously was in place when this all the material facts that apply remains in place today but based on the  promissory note read together i do not believe that there is a requirement in that contract in fact quite the contrary i believe that the contracts clearly says once i've given you notice of default and an opportunity to cure i don't have to do it time after time after time i don't believe that the the rescission letter itself undermines that contract right there is no requirement that they get this notice  questions thank you  constitution the supreme court cases made it clear that the loan must be made on those terms alone consists of many documents not just the note so where we disagree that there's a requirement that it be in the note and we never said that but it says right here  follow we first observe that section fifty eight is not directly create allow or regulate home equity lending nowhere does it say all home equity loans must include the constitutional terms and conditions nor does it prohibit loans made on other terms it simply describes what a home equity loan must look like if the lender wants the option to foreclose on a homestead upon bar would default as to constitutional rights section fifty eight creates but one freedom from force to sale to satisfy debts other than those described in his sections the relevance of these terms and conditions is therefore contingent on the fundamental guarantee of section fifty eight that the homestead is protected from for sale except for a home equity loan that includes the terms outlined in section fifty eight six a through p and is made on the condition that it also includes the provisions set forth in sections fifty six q one through eleven it couldn't get any more clear that's the texas supreme court is directly on point on this issue kind of an absurd interpretation if that's really what was intended to be in there that that's a canvas saying well unless there are two home equity loans we really don't need the provision that says you can't feel closer to home equity loans this is an objective threshold because the homeowners don't have any constitutional cause of action which is what the other things we discovered in this case after those decisions they can only in force the contract and what it says is in order to have a foreclosure eligible loan the con the lien must include these times it must be made on these terms and the and the what i hear opposing counsel the court saying is well we can second guess that make it moot by saying well it's not agricultural loan therefore we don't need to have this term in there that's simply not what the texas supreme court said it must be made on these terms and conditions they must be in the loan documents i would also like to address the condition precedent issue partly one more thing it's true that there was a constitutional amendment that was voted one from my perspective it's because there's a lot of these loans out there where they improperly extended the lane to agricultural property however the fact that voters approved a constitutional amendment that only goes into effect january first sale i would like to point to i've heard a couple of times that there is no contractual requirement for those excel aeration that's not the way i read this in the him estate briefing and i believe in the athlete briefing