claims the disquiet recognize that it essentially was an action of light title i don't think that there's any need to use them the magic words so knowing that we're going back to the district court at least for that claim i think there are two important issues that still need to be addressed this morning one of them is a procedural issue about the handling of the rule fifty nine motion the other is the substantive issue issue about limitations and and how whether a limitations period applies to the action seeking forfeiture substantive issue aside for a second talk about the procedural issue and the reason i think that the procedural issue regarding the treatment of the denial of the rule fifty nine motion is important is because we don't actually need to be here there's no reason that this court's time should be occupied by this appeal or that the parties on either side should be occupied with this appeal have the district court recognize the uplift ability of wood and then go off alone which would the texas supreme court spend some time in in would decision and recognize that those cases are political and the judgment should have been amended we wouldn't be here and i think that the only reason we are here is the bank put forward arguments in opposition to the rule fifty nine motion that i think we've demonstrated in our br our or wrong arguments in the district court took those arguments of face value denied to rule fifty nine motion without any explanation and now we're here so i think that this case provides a good vehicle we cited some cases about  fifty nine motions and amending a judgment under rule fifty nine he and the court may have noticed that the most recent case i can find where this court has reversed the denial of a rule fifty nine motion based on an intervening chang the denial of a rule fifty nine motion where the rule fifty nine motion really should have been granted given the intervening change in controlling law this court has said in prior decisions that there is no requirement that the district court provide reasons for denying of rule fifty nine emotion but when it has said that for example there's a case called brittle which brittle is sixty three f third three sixty four in the middle case the qip the court said that there's no requirement to give reasons if the reasons for the for denying the rule fifty three sorry will fifty nine motion are obvious apparent on the face of the record so i think the the inverse of that proposition is if the reasons for denying the rule fifty nine motion are not obvious and apparent on the face of the record then the district court really should explain why the rule fifty nine motion should be denied and i think in this case had that had the district court then under a direction or a requirement that it provides an explanation for why the rule fifty nine motion should be denied it would have engaged more fully with would case and the gravel a case and i think would have realized that the banks arguments were not correct and that the judgment really did need to be amended so i think this case presents often for the court to sort of provide some clarification and instruction to the district courts about how they should engage with a rule fifty nine motion at least one rule fifty nine motion is based on and intervening changing control and you're saying we should tell them they have to write something i think we did not and if you grant summary judge we're supposed to put forth your reasons and usually deny a motion there's might be good practice but i don't know of requirements to to give reasons well so there are a real fifty nine motion there are three grounds for amending a judgment or will rule fifty nine there's there's new evidence or there's a manifest  factor law or there's the intervening change controlling law i do think that what the courts that and brittle where if the reasons for denying the motion are obvious and apparent on the face of the record then you don't you know explain and i think at least for the first two reasons that's going to often be the case and so that the court can deny that rule fifty nine motion very frequently i assume without providing explanations because it's going to be clear that there's no new evidence or that or that there's not a manifest error a fact or law but i do think a rule fifty nine motion based on a lot of alleged intervening change controlling law it's going to be very rare that it's clear on the face of the record why the the alleged intervening change in controlling law doesn't require something there's going to need to be some kind of analys analysis of what that intervening decision is the only example i can think of is maybe if the rule fifty nine motion alleges an intervening change in controlling law but that's the case they cite it's not that you see fifty not because people come up with all sorts of i mean many of them are legitimate and need to be seriously considered but i've seen ones that are just you know they cite some case completely off point in the courts already poured all this time into a book well i think on its face maybe the case cited is clearly not intervening it's comes it was dated before the judgment then on its face there's no need to provide a reason but i think at the very least a sentence or two from the court saying why this doesn't matter would be useful and here i think what the requirement does is not so much it's not so much the explanation that's that's important but at least in this case had the court faced some instruction that so that in that an explanation would either be useful or required i think the court would having gauged more with the wood and draw flow decisions and we wouldn't this court's time would not be occupied with appeals that that are necessary with the with regard to the substantive issue on whether a limitations period  applies to the claim seeking forfeiture i think knowing that we're that we we go back to the district court at least on the claim seeking to prefer preclude for closure knowing that we're going back to the district  already i don't think that the court actually has to reach the the limitations question on the claim seeking forfeiture because we know now from the wooden groff the decisions that alexander's claim seeking forfeiture has to be brought of contract act she didn't bring it that way because there was no reason to know that she needed to until wouldn't groff lower decided so the wood case at the very end of the wood opinion the texas supreme court indicates that dismissing a claim if it applies and how it would apply to the forfeiture claim doesn't necessarily have to be arranged by the coup now that being said if the court wishes to reach that that question we've made the argument that under the contract action it's also arguable that it would be treated like any other breach of contract action and in that case texas law the texas contract law would govern that would mean that a four year limitation period might apply to that claim seeking forfeiture but i think it's a very important to understand that the that claim does not arise it's clear from the plain language of section fifty as well as the language in the the would opinion and the growth float and it's clear that that claim seeking forfeiture does is not triggered until you have notice and sixty days and the failure to cure that means that that claim cannot arise on the day of the loans  origination because that's day one and the lender gets notice and sixty days to cure before the forfeiture claim arises so i can't have a claim for forfeiture on day one if the lender hasn't gotten it sixty days to cure it so the claim for forfeiture does not arise on the day of origination it arises after notice sixty days in a failure to cure and that the texas supreme court in the wood decision actually it's points out explicitly this is page five forty nine of the wood opinion it's under head no ten if you have the west law version but the texas supreme court says these care provisions and this is referring to section fifty a six after notice the borrower has no corresponding deadline by which it must request a cure so the texas supreme court's recognizing here that in section fifty the the notice that the borrower has to provide to the lender to trigger the sixty day cure window which would then trigger the forfeiture remedy if there's a failure to cure there's no time period in which that notice has to be given there's no deadline for that so so from the date of the origina fifteen years into the loan at that point the borrower can say hey there's this deficiency i'm notifying you as the bank that there's this deficiency the bank then has sixty days to cure if at that point there's a failure to cure the forfeiture claim arises and if there's a limitations period that's when the limitations period would begin is from the the time where that's notice and sixty day and failure to cure episode occurs so again i don't think that the court has to reach the question about whether limitations applies but if it does i think that there's an argument that there is no time limit or there's an argument that if there is a time limit that's when it could be triggered and that's when it would expire and there are no furthe please the court my name's tom lee so i'm here representing our police wells fargo i think my colleague has gotten a little bit ahead of himself when he says we all know that the what he calls the action to who foreclosure is going back application of the principles from those cases to the specific claims that alexander raises in this appeal third time permitting i'd like to address briefly a couple of the cases that alexander cites in her rule twenty eight  turning to wouldn't raffaello those cases provide a framework for the application of the constitutional provisions issues here there are a number of principles we can gain from those playing from those cases the first is subsection q requirements because that's the only provision that alexander's raised in this case gropple it teaches that those terms and conditions are not constitutional rights and obligations under themselves they only say a constitutional significance when their absence from the loans terms is used as a shield to prevent foreclosure what garage fellow teaches is that the constitution prohibits foreclosure when a home equity loan fails to include a constitutionally mandated term or condition there are from those principles there are two sort of take home points that i think are particularly applicable to the arguments that alexander raises here first if the loan does include the terms set forth in subsection q then it rick meets the requirements of the constitution you have created a constitutionally on the lane under that loan is valid and there's no basis constitutionally speaking for a quiet title claim on the basis of the noncompliance with those terms if those terms and subsection q are included in  loan and that failure to comply with one of those terms is remediable only by an action for breach of contract so those are the principles that i think guide the court's analysis in evaluating the specific claims that alexander raises here there are two critical facts i think that the court out of bear in mind when evaluating her claims first there's only one relevant allegation in her complaint that speaks to the claims that she's arguing on appeal and that is that  there was no fair market value acknowledgment provided when the loan was closed that's the only allocation that's really at issue here secondly is an admission in alexander's reply brief she was speaking in terms of the provisions of goes on to say and in this case these provisions are in fact incorporated as terms of the loan agreement that is constitutional compliance once those terms are were paraded in the one the lo constitutionally compliant and the failure to comply with those loan terms is a breach of contract it is not a constitutional violation turning to the claims that she's brought in this appeal the first she says is a foreclosure  e there is no such thing as fourth sure for a constitutional violation what there is is a failure to comply with the terms and conditions that are incorporated in love once those are part of the loan agreement they are terms of the contract don't think i understood your question their position is a claim for breach of breach of contract claim for four pitcher accrues after the cure period ends which they want to say is the law when she when she found the lawsuit but i thought that all happened also in two thousand two thousand that when she let me back th thousand and six the lawsuits ten years too late if you treat the failure to care as an independent breach of contract yes that would be too late to i don't think that's the correct analysis even i'm not going to write you know given it's fine and i'm saying  and speaking to their alternative argument that the failure to cure is also an independent breach of contract that argument was raised and rejected in this court's decision in priester priester i think about as well that's the case that held that the for your statute of limitations applies to constitutional claims and that was the part that was aggregated in abrogated invalid the second part of the opinion in priester goes to the question of accrual of a cause of action and in that case the priester is contended that limitations quote the lines of the notice of demand for cure of the constitutional deficiencies or failure of care in this court rejected that argument applying the blackletter rule that claims accrue when a wrongful act causes a legal injury this court held that injury occurred when the priest has created the lane which would have been of origination so the question of whether the failure to cure supports an independent cause of action for breach of contract is answered in priester and priest who rejected that argument the court in both wood and garage followed was very careful to distinguish between the remedy for breach of contract the remedial forfeiture and the cause of action that would enable you to access that remaining which is for breach of contract as i said and so in this case the relevant angry inquiry is when the cause of action for breach of contract accrued immediately upon loan origination as an example the day after this long closed mr alexander could have sued for breach of contract she could have sought specific performance of the term and her alone that saying you're going to give me a fair market value of knowledge that day she could not have see for forfeiture because the lender would have had sixty days after having notice of that failure to comply to correct that  but even though that remedy would not have been immediately available the cause of action for the underlying breach of contract would have accrued groklaw was careful also to distinguish between the  the breach is not the failure to cure in the last point on that your honor is the cure provision which is subsection q x or q ten it doesn't create a contractual obligation to cure the it doesn't say you shall cure it says the consequences of failing to cure and that forfeiture remedy if that term is incorporated into the law is triggered by failure to cure but that's not an independent cause of action and judge cost as you pointed out it accrued at the time of the origination or if there was an independent breach of contract for failure to occur that occurred in two thousand and two when she notified the bank or a reasonable time after that when the bank did not respond to that letter and cure so i've talked about the two breach of contract claims that alexander circuit i want to turn to the third claim what she calls an action to preclude foreclosure and what would case calls a quiet title claim although the two are not synonymous throughout alexander's briefings she says i asserted that action to preclude foreclosure i e that is it or not or is an action to preclude foreclosure part of this case the more important point here is that alexander didn't plead any facts that would support a quiet tired of playing based on the texas constitution recall that the only facts that she alleged why judge late call it that i'm sorry or what a judge late call it a quiet title point i don't think he did your honor and let me explain in her response to the motion dismiss miss allen sander her argument was essentially a blockquote from a case called smith versus j p more and in the smith versus j p morgan there was a quiet title playing and a smith versus j p morgan the court in that case said and actually quite i'm going to paraphrase i don't recall but basically said an action to quiet title wouldn't be barred and in the courts memorandum opinion on the motion to dismiss it referred to that language quoted from smith versus j p morgan and and referred to the quiet title there in her response to the motion dismissed miss out on sandra did not say i've asserted by title she just block quoted from that other motion to dismiss so i don't think the court actually made that determination but here the only allegation that's relevant to the claims here is there was no acknowledgement of fair market value but miss alexander says the term from subsection q requiring the fair market value of knowledge move was one that was incorporated in the loan that makes the loan constitutionally compliant and you go to the next step which is did you comply with those provisions that were incorporated in the loan that's a breach of contract because the loan is constitutionally compliant the validity of the lien is not implicated and so there's no constitutionally basis there's no constitutional basis to claim that the lane created by this loan is invalid and consequently alexander pleaded no facts that would plausibly support quite title one regardless of how she wants to characterize it as an action to prove that preclude foreclosure or otherwise the fact she alleges support only a claim for breach of contract for the failure to comply with the term incorporated in  opinion it's not entirely clear what allegations the borrowers was making but the opinion does resign that the borrower allege that the security interest was an enforceable because there were multiple violations of the constitution if the security interest is an enforceable is invalid that it is squarely within the decision would which says if you don't comply with the constitution if you create a constitutionally non compliant  loan then the lane is not valid and there is no statute of limitations applicable to that defense to foreclosure it appears then that barry would be a straightforward application  as i said a moment ago no facts have been alleged that would suggest that the lien was invalid because the constitution only says if you incorporate the required terms and conditions of the constitution into your loan agreement it's is wrong for a lot of the reasons that i think the analysis in this alexander's arguments is wrong in that case it also involved and after the earth a fair market value acknowledge their opinion suggest that it's not very clear that that term was incorporated into the loan if that term from subsection q was incorporated into the loan then the loan was constitutionally compliant and the failure to provide that acknowledgement would not implicate the validity of the lien it would simply be a breach of contract for the breach of that term in the loan that breach of contract claim does not support a good defense to an action for foreclosure because it doesn't implicate the validity of that second problem with carrington that i think is equally problematic in that case the court wrote that the lender provided the acknowledgement a fair market value a few days after the l appreciate is that subsection q x provides a specific cure provision if they've knowledge when it's not provided and that is to obtain the appropriate signatures and selling carrington if the appropriate signatures were included on wouldn't support an argument that the lien was invalid in the first place which would go to the defense to foreclosure one way that in preparing for argument i thought was helpful in valuating these claims is this sort of a decision tree at the time that the loan is originated there are two possibilities one is the loan is constitutionally compliant and one is that it is known if the law in this case incorporates the terms of subsection  as miss alexander admits than the loan is constitutionally compliant the lane created under that loan is valid and there is no constitutional based grounds to assert it by a title like the other branch of that tree is the loan does not accord rate the terms and that that makes a constitutionally not compliant and a lien created under that loan would not be found it would be invalid from the start invalid until cured as w case he didn't allege that the lien was invalid there is no basis for a claim for by a title secondly the failure to comply with a term that is incorporated as she admits was incorporated everyone gives rise only to a breach of contract claim and we've addressed in our brief why that's governed by a four year statute of limitations and we've addressed in our brief why there isn't any kind of exception to that or new kind of breach  up on the question i asked on the other side on the breach of contract your position because she there was a failure cure in two thousand to three your position has to be that each time there's a failure to cure a cause of action for breach of contract with the protect the homestead against foreclosure on that's why the they said there's really no structure limitations to prevent foreclosure exactly but on breach of contract that's that's a common law when they draw the decision constitutional based remedies  n common law right but the reason that in section fifty there is this cure provision that provides this what the court calls a draconian remedy of forfeiture the reason that that's there is to provide to the borrower and to protect the borrower against the failure to provide all the things that need to be provided under section fifty if forfeiture as a remedy at some point evaporates and is no longer available to the borrower the ment wasn't given she asked them for it they don't give it wiser's you fall breach of contract not only now she can just keep doing it over and over she under your theory well right and she could have so this if this is a breach of contract action which is the way the texas supreme court says and he's to be brought to get forfeiture as a remedy then texas contract law applies and it's well settled in texas contract law that when there's a breach the non breaching party has a choice they can sue on that breach or they can treat the contract is continuing and move on but when there's another breach then they again have that choice they can sue for the breach or they can cheat is continuing to move on and so what happens in two thousand and two there's a breach there's notice there sixty days there is no cure she can sue at that time or she can continue to try to work this out between she and wells fargo and and continue contract is continuing but it's later in reach the failure to provide the acknowledgement it's so the there's an there's an underlying breach i think what would so this is fuzzy before wouldn't gras flow come out and what would a graph below i think teach us is some clarification about how this works before wouldn't go off will come out the precluding foreclosure and the forfeiture as as remedies there's a lot of of sort conflation of the two as though this is all under one constitutional claim and the district court actually characterizes her what she's seeking as does a singular claim and in fact the dissent in wood by chief justice hecht he does sort of the same thing kind of conflates the two but i think what would and go are awful or teach us is that these are two separate things like any other if if we're cheating these as contract provisions incorporated into the the loan agreement you have a provision that requires the signal agent signed acknowledgement and then you have another requirement that requires a cure in sixty days or or you face forfeiture as a remedy those two requirements are separate things and there are separate remedies attached to those so failing to provide this acknowledgement means you can't foreclose on the loan failing that you're after sixty days means you face forfeiture those are two separate things and there they trigger two separate ramadans so  and wouldn't grovel i think clarify that what the bank is arguing right now is that merely incorporating the provisions of section fifty into the loan agreement makes the loan agreement constitutionally compliant that's what my friend on the other side step in and said over and over and over again that is absolutely wrong that is not what would in growth flow stand for what if there is any requirement or or a condition under section fifty that is not satisfied then under section fifty that loan is is non compliant and cannot be foreclosed upon the lien is invalid ab initio and you cannot foreclose on that loan if any condition is not satisfied it's not just if the terms weren't incorporated into the loan agreement it's if any of those terms and conditions are not satisfied then the the lien is invalid and you can't foreclose so the bank is trying to characterize this is all we have to do is incorporate those provisions into our agreement and then we can violate the provisions all we want and we can still foreclose on it because we've incorporated the terms into the loan agreement that is not what any of this means they have to satisfy the requirements of conditions in order to before in order for the loan to be foreclosure eligible and then there's this other provision that provides forfeiture as a remedy for the borrower if they don't share one of those deficiencies in a timely manner and under texas contract law successive breaches trigger successive take on this and other cases to provide counsel in a case in irrespective of the outcome of the case you're another pro bono counsel who agree to do this very much appreciated by us as judges and by the court as a whole it's kind of an unknown to a lot of the public is weird folks in a large day end celebration of the rule and almost all our states have inadequate services for people access and so the pro bono counsel play a pivotal role in making the rule of law meaningful so we're appreciative that you're in that case and providing able counsel you know for that having