Is a home Equity Loan a Mortgage

The court in this judgment acknowledged and implemented the recent judgment of the Texas Supreme Court in Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542 (2016) and found that the debtor had not waived Wood's questions for the purpose of the appellate citation.

There is a download section available at Ocwen Loan Servicing, LLC v. Berry: More than four years after the loan was granted, after the debtor had defaulted on his mortgage loan, the mortgage creditor brought an enforcement action. As a reaction to the enforcement action, the Mortgagor, as his positive defence and cross claim, claimed that the mortgage creditor's lien was not enforceable due to breaches of Section 50(a)(6) of the Texas Constitution.

In reply to the opposing claim, the security right over real property creditor asserted that the four-year limitation period had expired the claim and, alternatively, that the creditor was eligible for an appropriate cession. Subsequent to opposing requests, the Tribunal issued a summative ruling in favour of the mortgage creditor, partly predicated on a Fifth Circuit precedent, which applied the four-year Limitation Act for Entitlements and Defensive Measures under Section 50(a)(6) of the Texas Constitution.

In addition, the Tribunal found that the Mortgagor renounced this by not properly asserting his argument in the context of the summative judgement that his claim was still in due course even when applying the limitation period under Tex. 069, which makes it possible to assert otherwise statute-barred rights as a counterclaim against legal action resulting from the same business or event or from a compensation theory. 6.3 The same applies to the right to compensation for loss or damage in the event of a loss.

Following the judgment of the Supreme Tribunal, the Texas Supreme Tribunal delivered its judgment in Wood v. HSBC Bank USA, N.A., which expressly quoted and disapproved of the Fifth Circuit test case using the four-year limitation period applicable in Texas. Before the Fifth Circle, the notifying party has stated in its argument that the participation in Wood has removed the Fifth Circle precedent.

But the mortgage creditor claimed that the debtor renounced his reasoning, which Wood checked in the present case, by omitting to express the reasoning in his original letter, although Wood's position was published before the borrower's opening. Accordingly, the Fifth Circle found that the Tribunal had made an error in relation to Wood's interest in finding that the limitation period excluded the borrower's rights and defensive measures.

Fifth Circuit referred the case to the courts for further review of the borrower's allegations that the loan was in violation of Section 50(a)(6) of the Texas Constitution and for review of the mortgagee's claim for reasonable subrogation. 25.4.2008 C 294/24 The Fifth Circuit also reviewed the claim of the lender for a waiver of the loan and the claim of the lender for a waiver of the loan.