* Senior Circuit Judge of the Eleventh Circuit, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 91–4856.

In the Matter of Ann B. SMITH, William L. Smith, Jr., Debtors.

Ann B. SMITH, and William L. Smith, Jr., Appellees–Cross Appellants,

v.

UNITED NATIONAL BANK–DENTON, Appellant–Cross–Appellee.

July 21, 1992.

Appeals from the United States District Court for the Eastern District of Texas.

Before HILL, * KING, and DAVIS, Circuit Judges.

PER CURIAM:

William L. Smith, Jr., and Ann B. Smith appeal from an order of the district court holding that

they are barred from asserting the invalidit y of a mechanic's lien on their homestead. United National

Bank–Denton appeals from the denial of attorney's fees. We affirm the judgment of the district court

as to the validity of the lien, but vacate and remand as to the issue of attorney's fees.

I. FACTS AND PROCEDURAL HISTORY

On April 2, 1987, the Smiths executed a mechanic's lien contract and a mechanic's lien note

p ayable to Frank Bourland, a contractor, in the amount of $60,000. The note and contract were

contemporaneously assigned by Bourland to USBank of Denton ("USBank"). The contract described

certain improvements to be made by Bourland to the Smiths' residence in consideration for execution

of the note and the granting of a lien on their homestead.

The $60,000 was advanced by USBank to the Smiths pursuant to three draw requests, each

of which indicated that work on the residence was being completed. In fact, no work was ever

performed on the residence, and all partie s invo lved knew that the money was actually beingadvanced to pay the Smiths' delinquent taxes and other debts. According to Mr. Sm ith, the l oan

officer at USBank told him that the "loan would look good on paper," but recognized that the loan

documents were false.

The mechanic's lien note mat ured in Oct ober 1987, and the Smiths defaulted. Shortly

thereafter, USBank failed, and its assets were acquired by the Federal Deposit Insurance Corporati on

( "FDIC") as receiver. These assets, including the mechanic's lien note and contract, were then

assigned to United National Bank–Denton ("the Bank").

In October 1988, the Smiths filed for ba nkrupt cy relief under chapter 11. This case was

commenced by the Bank as an adversary proceeding in the Smiths' bankruptcy case. The Bank

sought a declaration of the validity of the mechanic's lien on the Smiths' homestead, arguing that it

acquired the note and contract from the FDIC and, as an assignee of the FDIC, took the documents

free of any defenses pursuant to 12 U.S.C. § 1823(e) and D'Oench, Duhme & Co. v. FDIC, 315 U.S.

447, 62 S.Ct. 676, 86 L.Ed. 956 (1942). The Smiths counterclaimed for a declaration that the lien

was invalid, arguing that, because Texas law requires substantial pe rformance of the work on a

homestead before a mechanic's lien attaches, the lien here was invalid inasmuch as no work at all was

performe d. The bankruptcy court held for the Bank and declared the lien valid, reasoning that 12

U.S.C. § 1823(e) and the doctrine of D'Oench , Duhme estopped the Smiths from asserting their

defense to the lien. The bankruptcy court also awarded the Bank substantial attorney's fees and

expenses. Upon the Smith's objection that the Bank failed to segregate recoverable fees and expenses

from those incurred in another adversary proceeding, the court rescinded the award of attorney's fees

in an amended judgment. No written reasons for the denial of the fees in the amended judgment are

apparent in the record.

The Smiths subsequently appealed to the district court as to the validity of the mechanic's lien,

and t he Bank cross-appealed as to the denial of its attorney's fees. The district court affirmed thebankruptcy court's judgment in all respects. An appeal to this court was first perfected by the Bank

on the issue of its fees. The Smiths then cross-appealed as to the validity of the lien.

II. DISCUSSION

A.

Section 53.059 of the Texas Property Code provides that a mechanic's lien can be created

on a homestead if the parties execute a written contract which is signed by both spouses, entered into

before the material is furnished or the labor is performed, and properly re corded. Tex.Prop.Code

Ann. § 53.059 (Vernon 1984). The Bank asserts that, inasmuch as these requirements were met, the

mechanic's lien attached. The Bank also cites Section 53.124(a), which provides as follows:

(a) For purposes of section 53.123 [lien priority], the time of inception of a mechanic's lien

is the earlier of:

(1) commencement of construction of improvements or delivery of materials to the land on

which the improvements are to be located and which the materials are to be used; or

(2) recording of a written agreement to construct all or p art o f any improvement or to

perform labor, furnish material, or provide specially fabricated material in connection with the

construction.

Tex.Prop.Code Ann. § 53.124(a). The Bank argues that this section indicates that the mechanic's lien

at issue here attached as of the date of recordation.

According to the Smiths, however, the lien never attached to their homes tead because the

improvements called for by the lien contract were never cons tructed. The Texas Consti tuti on

provides, in relevant part, as follows:

The homestead of a family

... shall be, and is hereby protected from forced sale, for the

payment of all debts except for the purc hase mo ney thereof, or a part of such purchase

money, the taxes due thereon, or for work and materials used in constructing improvements

thereon.... No mortgage, trust deed, or other lien on the homestead shall ever be valid, except

for the purchase money therefor, or improvements made thereon, as hereinbefore provided....

Tex. Const. Art. XVI, § 50 (emphasis added). The Smiths argue that the emphasized language in theTexas Constitution suggests that the work must actually be performed before a mechanic's lien

attaches. They also contend that this reading of § 50 is echoed in Texas Property Code § 41.001(b),

which provides, in relevant part, as follows:

Encumbrances may be properly fixed on homestead property for:

. . . . .

(3) work and material used in constructing improvements on the property if contracted for

in writing before the material is furnished or the labor is performed and in a manner required

for the conveyance of a homestead, with joinder of both spouses if the homestead claimant

is married.

Tex.Prop.Code Ann. § 41.001(b) (emphasis added). The Smiths contend that, as a matter of Texas

law, t he improvements called for in a lien contract must be performed before a lien attaches,

regardless whether the lien contract is assigned to a third party. F idelity Savings & Loan Association

of Port Arthur v. Baldw in, 416 S.W.2d 482, 483 (Tex.Civ.App.—Beaumont 1967, writ ref'd n.r.e.),

appears to support this position:

The law of this state requires substantial performance of a mechanic's and materialmen's lien

contract before such lien attaches to a homestead. This is true whether the person claiming

the lien is the original contractor, or the contractor's assignee, as in this case. As stated by

the Supreme Court ... the assignee bought the note before the contract was performed, and

the as signee's lien depended upon the performance either by the original contractor or the

assignee of that which such contractor had undertaken to do to create or perfect the lien.

Id.; see also Houston Lumber Supply Co. v. Wockenfuss, 386 S.W.2d 330, 334

(Tex.Civ.App.—Houston 1965, writ ref'd n.r.e.). Furthermore, contend the Smiths, § 53.124(a),

which prov ides that a mechanic's lien arises at the time of recordation, is relevant only to disputes

over lien priority, and is therefore inapposite to the instant dispute.

We need not here determine whether, or when, under the peculiar circumstances presented

in t his case, the mechanic's lien attached to the Smith's homestead, because we find that, even

assuming the lien never attached, the Smiths are estopped from denying the validity of the lien. Under

Texas law, homestead owners may not be estopped from asserting the i nvalidit y o f a lien on their1 The Smiths contend that they cannot be equitably estopped from asserting the invalidity of the

lien because of Texas' "paternalistic general rule providing that homestead owners are not

estopped by their own false representations...." Their contention is meritless. The Smiths base

their argument on the following quote:

The constitution forbidding the fixing on the homestead of liens other than

such as are thereby expressly permitted, no estoppel can arise in favor of a lender

who has attempted to secure a lien on a homestead in actual use and possession of

the family, based on declarations of the husband and wife made orally or in writing,

contrary to the fact. To hold otherwise would practically abrogate the

constitution.

If property be homestead in fact and law lenders must understand that liens homestead except in three cases:

1. When the owners, not actually occupying the property, or so using it that its status is dubious at

the time the mortgage is executed, represent that it is not their homestead;

2. When the owners create a lien by entering into a simulated transaction which has all the outward

appearance of a valid, unconditional sale, but which is in fact a mortgage; or

3. when the owners represent that existing notes are valid mechanic's lien notes for improvements,

secured by a mechanic's lien contract properly executed.

See In re Niland, 825 F.2d 801, 809 (5th Cir.1987); L incoln v. Bennett, 138 Tex. 56, 156 S.W.2d

504, 506–07 (1941). Only exception 3 is relevant here.

Several Texas cases have discussed this exception to the State's paternalistic policy toward

homestead rights. According to these cases,

[i]t has long bee n held that when owners of a homestead represent that existing notes are

valid mechanic's lien notes for improvements, secured by a mechanic's lien contract properly

executed, and thereby induce innocent third parties to invest funds on the faith and credit of

such liens, they are estopped as to such third parties to plead that the lien is invalid.

Mazow v. Brazle, 337 S.W.2d 734, 737–38 (Tex.Civ.App.—Eastland 1960, no writ); s ee also Engell

v. Union Ce ntral Ins. Co., 81 S.W.2d 738, 739–40 (Tex.Civ.App.—Fort Worth 1935, no writ);

Ackerson v. Farm & Home Sav. & Loan Ass'n of Missouri, 77 S.W.2d 559, 561 (Tex.Civ.App.—San

Antonio 1934, writ ref'd); G arrett v. Katz, 23 S.W.2d 436, 438 (Tex.Civ.App.—Dallas 1929, no

writ). 1cannot be fixed upon it, and that declarations of husband and wife to the contrary,

however made, must not be relied upon. They must further understand that no

designation of homestead, contrary to fact, will enable parties to evade the law,

and encumber homesteads with liens forbidden by the constitution.

Texas Land & Loan Co. v. Blalock, 13 S.W. 12, 13 (Tex.1890) (emphasis added). The

policy in the State of Texas, as articulated above, is to prevent homestead owners from

encumbering their homesteads with improper liens—those that are neither for purchase

money, taxes thereon, or improvements, see Tex. Const. Art. XVI, § 50—by falsely

representing that the property sought to be used as collateral is not their homestead.

Here, all parties recognize that the Smiths' residence is their homestead. The instant

situation, where the homestead owner has participated in the creation of a sham

mechanic's lien, is very different from that which gave rise to the policy as described in

Blalock. Indeed, Texas law, see supra, specifically permits the estoppel of a homestead

owner from asserting the invalidity of a mechanic's lien when the homestead owner has

previously represented that the lien is valid. See Niland, 825 F.2d at 809; Lincoln, 156

S.W.2d at 506–07. The circumstances of the instant case satisfy the requirements of this third exception. There

is little doubt that the FDIC, and subsequently the Bank, were deceived by the Smiths' loan file.

Indeed, the bankruptcy court specifically found that the Smiths, Bourland, and USBank entered into

this transaction to defraud federal banking authorities. The Smiths clearly represented within the bank

records, by means of the mechanic's lien note and contract and the three draw orders, that the work

on the homestead was taking place, and thereby induced the FDIC to invest funds for the note and

contract in the purchase and assumption t ransact ion. The Bank, as assignee of the FDIC, was

similarly misled by the Smith's representations as to the validity of the mechanic's lien.

The Smiths contend, however, that estop pel is improper in this case because the initial

assignee of the note and contract, USBank, was not an innocent third party purchaser, because it was

found by the bankruptcy court to have full knowledge of the fraud. We recognize that, based upon

USBank's knowledge of the fraud, the Smiths would probably not be est opped from asserti ng the

invalidit y of the mechanic's lien if it were still held by USBank. The lien note and contract are no

longer held by USBank, however, and are now in the possession of a subsequent assignee. This

subsequent assignee, the Bank, was not a party to the cre at ion of t he fraudulent lien. Indeed, the

Bank (and its assignor, the FDIC) took the lien note and contract in good faith, for value, and without

knowledge of the fraud, and was therefore an innocent third party purchaser. C f. Garrett, 23 S.W.2dat 438 ("In a number of cases, where simulated or fictitious transactions, giving rise to ostensible liens

on homesteads, were involved, our appellate courts have repeatedly held that bona fide purchasers

of such liens should be protected."); N CNB Texas Nat'l Bank v. Campise, 788 S.W.2d 115, 118

(Tex.App.—Houston [14th Dist.] 1990, writ denied) ("When the FDIC ... acquires a note in good

faith, for value, and without actual knowledge of any defenses against the note, it takes the note free

of all defenses that would not prevail against a holder in due course."). We need not here determine

whether the Bank satisfied the myriad requirements of a holder in due course; rather, we find only

that t he Bank is an innocent third party purchaser of the mechanic's lien note and contract for

purposes of this estoppel exception under Texas law.

Texas law clearly calls for estoppel in the circumstances we confront here. S ee Lincoln, 156

S.W.2d at 506–07. We therefore hold that the Smiths are estopped under Texas law from asserting

the invalidity of the mechanic's lien.

B.

The Bank sought attorney's fees for recovery on a contract claim under Texas Revised Civil

Statute article 2226, recodified at Chapter 38, Texas Civil Practice and Remedies Code. The award

of reasonable attorney's fees to a plaintiff recovering on a valid claim founded on a written or oral

contract preceded by proper presentment of the claim is mandatory. S ee Caldwell & Hurst v. Myers,

714 S.W.2d 63, 65 (Tex.App.—Houston [14th Dist.] 1986, writ ref'd n.r.e.). As a general rule, the

party seeking to recover attorney's fees carries the burden of proof. See Stew art Title Guar. Co. v.

Sterling, 822 S.W.2d 1, 10 (Tex.1991); K imbrough v. Fox, 631 S.W.2d 606, 609 (Tex.App.—Fort

Worth 1982, no writ). This burden includes the duty to segregate recoverable fees from those that

are not recoverable. S ee Stewart Title Guar. Co, 822 S.W.2d at 10–11; W ood v. Component Constr.

Corp., 722 S.W.2d 439, 444–45 (Tex.App.—Fort Worth 1986, no writ).

Here, the district court affirmed the bankruptcy court's denial of the Bank's fees because asmall porti on of the fee request submitted by the Bank repre sent ed fees generated in a different

adversary proceeding. Denial of all fees based on this mistake by the Bank was error. Under Texas

law, "an award of attorney's fees erroneously based upon evidence of unsegregated fees requires a

remand." S tewart Title Guar. Co., 822 S.W.2d at 11; s ee Marcotte v. American Motorists Ins. Co.,

709 F.2d 378, 381 (5th Cir.1983) (following Texas law, granting a hearing to determine which fees

were recoverable).

Moreover, while a trial court has discretion in fixing the amount of attorney's fees, it does

not have discretion to deny attorney's fees entirely under article 2226. C aldwell & Hurst, 714 S.W.2d

at 65. Here, the bankruptcy court abused its discretion in completely denying the Bank's request for

fees. We therefore vacate the judgment denying the Bank its attorney's fees and remand to the district

court with instructions to remand to the bankruptcy court to c a lculate the Bank's recoverable

attorney's fees.

III. CONCLUSION

For the foregoing reasons, the judgment of the district court with regard to the validity of the

mechanic's lien is AFFIRMED; with regard to the issue of the Bank's attorney's fees, the judgment

is VACATED and REMANDED with instructions to calculate the recoverable fees. Costs shall be

borne by the Smiths.