Business Insider-

Ten years on from the beginning of the financial crisis, things are looking pretty good for the global economy.

Growth is solid around the world, and greater regulation should, in theory at least, make a new banking crisis far less likely.

However, it would “take a huge leap of faith to say that crises won’t continue to be a regular feature of the current financial system that has been in place since the early 1970s,” Deutsche Bank wrote in a note last week.

[BUSINESS INSIDER]

LEXOLOGY-

The Bankruptcy Code prohibits a chapter 13 debtor from modifying a mortgage lien on the debtor’s principal residence. Even in situations in which a secured creditor fails to file a proof of claim or otherwise participate in the bankruptcy proceeding, the Bankruptcy Code allows a secured creditor’s lien on a primary residence to pass through the bankruptcy unaffected. However, a recent decision from a bankruptcy court in Texas illustrates the risks to secured creditors of blind reliance on these statutory protections.

In the chapter 13 case, the debtors filed a proof of claim on behalf of the secured creditor that provided a different interest rate than the contract rate on their homestead mortgage. The debtors’ chapter 13 plan also proposed payment at the reduced interest rate. The secured creditor never filed its own proof of claim and did not object to the chapter 13 plan, which was confirmed. After the debtors made all payments required by the plan, the bankruptcy court held that the mortgage had been paid in full and ordered that the lien be released upon entry of the discharge, concluding that the secured creditor received adequate notice of the chapter 13 plan and failed to object. To potentially avoid this result, secured creditors should carefully examine the contents of any proofs of claim filed on their behalf as well as the terms of chapter 13 plans to ensure the treatment set forth in those filings is consistent with the creditor’s expectations. If a creditor disputes the treatment proposed by a proof of claim or plan, the creditor should carefully consider its potential responses, including objecting to the proof of claim filed on its behalf, filing an objection to the proposed plan or appealing an order confirming that plan.

[LEXOLOGY]

LEXOLOGY-

A federal court in Texas recently entered a massive judgment against a mortgage originator for financial crisis conduct, transforming an already severe $93 million jury verdict into a $298 million punishment, and issuing one of the first judicial opinions regarding how to assess penalties under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”).

The suit began in 2011 as a whistleblower action, in which the government quickly intervened, alleging the submission of false Federal Housing Administration (“FHA”) insurance claims by Americus Mortgage Corporation (formerly known as Allied Home Mortgage Capital Corporation), one of its affiliates, and its CEO (collectively, “Allied”) between 2001 and 2011. The matter eventually proceeded to a five-week jury trial, where Allied was found liable for multiple violations of the False Claims Act (“FCA”) and FIRREA. The conduct proven at trial involved:

• Submission of 1,192 FHA insurance claims for loans that were recklessly underwritten and ineligible for FHA insurance;
• Submission of 103 FHA insurance claims for loans originated in branches without proper HUD registration, using registration numbers of other, registered branches;
• Submission of nine false annual certifications to HUD relating to compliance with quality control requirements; and
• Submission of an email from Allied to a HUD employee in 2009 containing 18 falsified quality control reports.

[LEXOLOGY]

KSHB-

It’s been six years since Army Sgt. Jin Nakamura was serving in a combat zone in Iraq.

While fighting for his country, Nakamura learned he was about to be taking on a whole new battle back home.

“I was checking my credit history and saw that my car, I thought I was making payments to, was [repossessed],” Nakamura said. “I thought there was a mistake.”

When Nakamura discovered the issue on his credit report, he said he contacted his lender, Wells Fargo, immediately.

[KSHB]

Bloomberg-

JPMorgan Chase & Co. was ordered by a Dallas jury to pay more than $4 billion in damages for mishandling the estate of a former American Airlines executive, but the verdict will probably be knocked down on appeal.

Jo Hopper and two stepchildren won the probate court verdict over claims that JPMorgan mismanaged the administration of the estate of Max Hopper, who was described as an airline technology innovator in a statement issued by the family’s law firm.

Large punitive damages verdicts like the one in the Hopper case are often scaled back because the U.S. Supreme Court has ruled they can’t be disproportionate to actual damages. In this case, the jury awarded less than $5 million in actual damages.

[BLOOMBERG]

BLOOMBERG-

A California couple who were dragged through a Bank of America Corp. foreclosure called “brazen” and “heartless” by a bankruptcy judge have joined the lender’s request to be spared from a $45 million punishment.

U.S. Bankruptcy Judge Christopher Klein in Sacramento, hailed as a “hero judge” by Money magazine for coming down so hard on the bank, must now decide whether to approve a settlement that would rescind both the penalty and the scathing 107-page decision that accompanied it in March.

While Klein said the size of the punitive damages award against Bank of America was meant to “not be laughed off in the boardroom,” the couple who endured what the judge described as a “Kafkaesque nightmare” say the deal they’ve struck will leave them better off and avoid years more litigation and appeals.

[BLOOMBERG]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Vanity Fair-

When Donald Trump was running for president, he vowed to pass a tax-reform bill the likes of which the country hadn’t seen for more than 30 years, which got a lot of people who wouldn’t otherwise be thrilled about the real-estate developer moving into the Oval Office excited. Unfortunately, as the last eight months have shown, passing legislation is slightly harder than standing at a lectern and yelling about locking up Hillary Clinton and a lot more boring than getting into Twitter feuds with Megyn Kelly. Luckily for Trump, he’s been able to outsource much of the tax-reform effort to Treasury Secretary Steven Mnuchin,freeing up his time to fight with professional football players for not standing during the National Anthem and provoke North Korea into nuclear war. Unfortunately for Trump, it appears that Mnuchin is wildly in over his head. The Wall Street Journal reports that Mnuchin, whose path to the Treasury involved a gig at Goldman Sachs, starting a hedge fund, dabbling in the movie business, and running a “foreclosure machine” out in California, has more than a few hurdles in his way, including but not limited to:

An ongoing debate about how the government is going to pay—or not pay—for enormous tax cuts: “Stacked against Mr. Mnuchin, as negotiations near the make-or-break stage, are unresolved intraparty disagreements over how much lost tax revenue is acceptable and how tax cuts should be apportioned among companies, high-income earners, and the middle class. Lobbyists stand ready to resist almost any proposed changes.”

[VANITY FAIR]

Market Watch-

The Commodity Futures Trading Commission has found a solution to its problem of chronic underfunding — it will let the industry do the investigating.

That’s not an overstatement. The head of the CFTC’s enforcement division will lay that framework out in a speech on Monday night, according to a draft received by the New York Times.

The thrust is that companies that self-report will receive a discount on their penalty of about 75%, and in what are called rare cases in the report, relief from penalties altogether.

[MARKET WATCH]

Lexology-

For over eight years, In re Lehman Bros., No. 08-13555-scc (Bankr. S.D.N.Y.), has been one of the most active, complex bankruptcy dockets in the country. A large portion of the remaining contested matters in that case are claims by trustees for residential mortgage backed securities (RMBS), who continue to pursue claims against the Lehman estate for losses caused by toxic mortgages. Recent developmentsshow that Lehman is trying to wrap up many, if not most, of those RMBS claims by the end of this year.

Most practitioners are aware of the events surrounding Lehman’s bankruptcy filing in 2008, but fewer have followed the long road that the RMBS claims in the case have traveled. Prior to the bar date in 2009, the RMBS Trustees filed proofs of claim for hundreds of trusts, covering hundreds of thousands of mortgage loans. Lehman eventually agreed to reserve $5 billion for payment of those RMBS claims.

In December 2014, the Bankruptcy Court ruled against the RMBS Trustees: rejecting the Trustees’ request to increase that reserve amount, Judge Chapman agreed with Lehman that the Trustees could not use sampling for purposes of estimating Lehman’s liability on claims. While Judge Chapman recognized that sampling had been used in connection with RMBS claims in other bankruptcies (such as the ResCap case), and that sampling was regularly used in RMBS litigation brought by monoline insurers, she declined to authorize it in the Lehman bankruptcy.

[LEXOLOGY]

EVERY SUNDAY
3:00 PM HAWAII
6:00 PM PACIFIC
9:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

KCET-

In recent years, the American public has been treated to a number of films about the 2008 housing crisis: the insightful documentary “The Queen of Versailles”, the dark, simmering “99 Homes”, and the Oscar nominated “The Big Short” to name a few. For all the critical acclaim bestowed upon each, with the exception of a couple of short scenes from “The Big Short”, none portray the travails of working-class black and brown homeowners or the ways in which a historically racially biased system of home financing contributed to the 2008 debacle.

Nearly a decade after the housing crisis, public policy professionals and academics have worked to unravel the complex factors that led to the catastrophe and why minorities and women proved particularly vulnerable. The intersection of racially constructed housing markets; changes in banking and housing finance, notably the securitization of mortgages; and the proliferation of subprime loans explain why the 2008 crash devastated communities of color.

University of California, Davis sociologist Jesus Hernandez, who grew up in Sacramento’s Oak Park neighborhood, has spent years studying the housing crisis nationally, but also the more specific experience of metropolitan Sacramento homeowners. In addition to the devastating losses of private homes, the housing bubble cost the city dearly. According to the California Reinvestment Coalition, in 2007 Sacramento residents faced with foreclosure lost, in addition to their homes, $54 million collectively. Administrative costs related to foreclosure extracted $40 million from city coffers, and the city’s Gross Municipal Product suffered as well; one study estimated losses of $1.73 billion in GMP. Cascading social costs resulted, including increasing numbers of vacant buildings, rising crime rates from squatting and reduced revenues from property taxes, physical deterioration of neighborhoods and housing stock, and schools squeezed ever tighter for already insufficient funding.

[KCET]

NJ LAW Journal-

A New Jersey appeals court has ruled that a Burlington County woman in danger of losing her home to foreclosure can challenge the action by claiming that she took out a loan for home improvement work that was never done.

In a case that began nearly nine years ago, a three-judge Appellate Division panel, in an unpublished decision in Emigrant Mortgage v. Costa released on Monday, overturned a Burlington County Superior Court judge’s decision to dismiss Costa’s affirmative defenses against Emigrant Mortgage Co.’s foreclosure efforts.

Judges William Nugent, Heidi Currier and Richard Geiger, however, refused to reinstate Costa’s counterclaims seeking damages against Emigrant.

[NJ LAW JOURNAL]

Reuters-

A consumer watchdog agency could have levied $10 billion in penalties against Wells Fargo & Co last year for opening unauthorized customer accounts, but settled for a fraction of that to resolve the matter quickly, according to regulatory documents released on Tuesday.

The documents, unveiled as part of a report written by congressional Republicans, look set to heighten a fierce partisan debate about the future of the U.S. Consumer Financial Protection Bureau (CFPB).

Set up by Democrats in the aftermath of the 2007-2009 financial crisis to protect consumers against abuses by large institutions, the CFPB is loathed by Republicans who criticize it as a wayward agency that lacks proper oversight.

[REUTERS]

MIGUEL ROJAS AND LOURDES ROJAS, Appellants,
v.
CITIMORTGAGE, INC., Appellee.

Vaughan Waters, for Lourdes Rojas, Appellant.

Vaughan Waters, for Miguel Raul Rojas, Appellant.

On appeal from the 404th District Court, of Cameron County, Texas.

Before Justices Rodriguez, Contreras, and Benavides.

MEMORANDUM OPINION

Memorandum Opinion by Justice RODRIGUEZ.

The trial court granted summary judgment in favor of appellee Citimortgage, Inc. (Citi) and ordered judicial foreclosure of a house owned by appellants Miguel Rojas and Lourdes Rojas. By one issue, which we construe as two, the Rojases argue that summary judgment was erroneously granted because Citi’s foreclosure claim was barred by the statute of limitations and because the ruling conflicts with the Texas Constitution’s provisions on home-equity loans. Because we find that the Rojases created a fact issue with regard to limitations, we reverse and remand.

I. BACKGROUND

On July 30, 1999, the Rojases obtained a home-equity loan from Associates Financial Services Company of Texas, Inc. (Associates). They executed several documents, including two instruments in which the Rojases promised to repay the loan and pledged their home in Harlingen, Texas as security.^[1]

The summary judgment proof shows that Associates assigned the instruments to Citi. On January 16, 2009, Citi sent a notice of default to the Rojases, in which Citi cautioned the Rojases of acceleration and possible foreclosure. On July 21, 2010, Citi notified the Rojases that it was accelerating the loan, such that the alleged balance of $188,167.84 was immediately due. The Rojases did not subsequently make any payments on the loan. Citi sent similar notices on May 16, 2011 and again on August 16, 2011, stating that the note had been accelerated and urging the Rojases to pay the full balance of the note.

On November 6, 2013, Citi sent the Rojases a notice of default. Rather than demanding the accelerated balance, this notice urged the Rojases to pay “the past due amount of $95,828.51” and stated that the Rojases’ failure to “cure the default by 12/11/2013 will result in acceleration of the loan.”

On June 23, 2014, Citi filed suit seeking judicial foreclosure. Citi moved for summary judgment, asserting that it was entitled to judgment as a matter of law. The Rojases responded that Citi’s foreclosure action was time-barred because Citi had not served its suit within the statute of limitations.^[2]

On January 20, 2016, the trial court granted summary judgment in favor of Citi on its foreclosure claim. On February 19, 2016, the Rojases filed a motion to reconsider the summary judgment. The motion was overruled by operation of law. The Rojases filed this appeal on May 2, 2016.

II. TIMELINESS OF APPEAL

As an initial matter, Citi argues that the Rojases’ appeal was untimely. We disagree.

The Rojases filed a motion to reconsider the summary judgment within thirty days after the judgment was signed. A party who wishes to appeal generally must file a notice of appeal within thirty days after the trial court signs its judgment, or within ninety days after the trial court signs its judgment if any party files a timely motion for new trial or a motion to modify the judgment. TEX. R. APP. P. 26.1(a). When a party files a motion for reconsideration that seeks reversal or modification of a judgment, we treat it as a motion for new trial or a motion to modify the judgment, pursuant to the appellate rules. See Padilla v. LaFrance, 907 S.W.2d 454, 458 (Tex. 1995) (concluding that an appellant’s “motion for reconsideration was the equivalent of a motion to modify the judgment, extending the appellate deadlines”); see also Fox v. Wardy, 318 S.W.3d 449, 451 n.1 (Tex. App.-El Paso 2010, pet. denied) (construing a motion to reconsider as a motion for new trial); Adams v. Ross, No. 01-15-00315-CV, 2016 WL 4128335, at *2 (Tex. App.-Houston [1st Dist.] Aug. 2, 2016, no pet.) (mem. op.) (same). Thus, the Rojases timely filed a constructive motion for new trial, which extended the deadline for the Rojases’ notice of appeal to ninety days. See TEX. R. APP. P. 26.1(a).

The Rojases filed their notice of appeal on May 2, 2016, more than ninety days after the judgment was signed. However, a motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1 but within the fifteen-day grace period provided by rule 26.3 for filing a motion for extension of time. Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (per curiam) (citing Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997)); see In re J.Z.P., 484 S.W.3d 924, 925 n.2 (Tex. 2016) (per curiam) (“Filed two days after the deadline, [appellant’s] notice of appeal implied a motion for an extension of time.”).^[3]

If the notice of appeal is filed within the fifteen-day grace period, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See Hone, 104 S.W.3d at 886. A reasonable explanation is “any plausible statement of circumstances indicating that failure to file within the [specified] period was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance.” Id. We apply a permissive standard of review to assess the reasonableness of the explanation, and any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake, or mischance. Id. at 886-87.

As explanation, the Rojases submit that their trial counsel withdrew following the summary judgment. According to the Rojases, they attempted to represent themselves while searching for appellate counsel, and they inadvertently filed their pro se notice of appeal after the deadline because of their inexperience in the law. Under our permissive standard of review, the Rojases’ conduct falls shy of deliberate noncompliance and qualifies as a reasonable explanation. See id.; Newsom v. Ballinger Indep. Sch. Dist., 213 S.W.3d 375, 377 n.3 (Tex. App.-Austin 2006, no pet.) (finding reasonable explanation based on counsel’s miscalculation of appellate deadlines); Scott-Richter v. Taffarello, 186 S.W.3d 182, 186 (Tex. App.-Fort Worth 2006, pet. denied) (same); see also Kessel-Revis v. State, No. 09-12-00519-CV, 2014 WL 2616903, at *2 (Tex. App.-Beaumont June 12, 2014, no pet.) (mem. op.) (finding reasonable explanation based upon a pro se petitioner’s unfamiliarity with appellate deadlines).

In light of the implied motion for extension of time and the Rojases’ reasonable explanation for the delay, we consider the notice of appeal to be timely filed. See Hone, 104 S.W.3d at 886.

III. STATUTE OF LIMITATIONS

By their first issue, the Rojases argue that summary judgment ordering foreclosure was inappropriate because they created a fact issue on their affirmative defense of limitations. According to the Rojases, Citi’s foreclosure claim is time-barred because Citi did not obtain service of its suit within limitations, and because Citi made no attempt to show that it was diligent in obtaining service or to otherwise explain the delay.

In response, Citi asserts that the Rojases have incorrectly stated the date when the foreclosure action began to accrue. Citi also contends that even if the Rojases have stated the correct date of accrual, the delay in service was so minimal that it is excusable.

Essentially, the parties’ summary judgment dispute turns on: (1) the date Citi’s foreclosure action accrued; and (2) whether Citi acted diligently in serving its lawsuit.

A. Summary Judgment Standard of Review & Burdens of Proof

We review a grant of summary judgment de novo. Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013) (per curiam). The party moving for traditional summary judgment has the burden to submit sufficient evidence to establish that it is entitled to judgment as a matter of law. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). When a movant meets that burden of establishing each element of the claim or defense on which it seeks summary judgment, the burden then shifts to the non-movant. Id. “If the party opposing a summary judgment relies on an affirmative defense, he must come forward with summary judgment evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment.” Mena v. Lenz, 349 S.W.3d 650, 656 (Tex. App.-Corpus Christi 2011, no pet.) (op. on reh’g) (quoting Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984)). We review the record in the light most favorable to the non-movant, indulging every reasonable inference and resolving any doubts against the motion. Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012) (per curiam).

B. Accrual & Abandonment

The parties first dispute the date Citi’s foreclosure action accrued. The Rojases assert that Citi’s claim accrued when Citi sent its notice of acceleration on July 21, 2010. See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001). The Rojases contend that the four-year statute of limitations therefore expired on July 21, 2014. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.035(a) (West, Westlaw through 2017 R.S.) (prescribing a four-year limitations period).

In response, Citi concedes that it initially accelerated the Rojases’ note on July 21, 2010, which began the accrual of limitations for the foreclosure action. However, Citi contends that it later abandoned this acceleration and thereby stopped the accrual of limitations. Citi cites a notice of default that it sent to the Rojases on November 6, 2013 and argues that through notice, Citi abandoned the earlier acceleration and reset the accrual of limitations. Citi relies on Leonard v. Ocwen Loan Servicing, LLC for the proposition that its 2013 notice of default showed an abandonment because: (1) the notice only demanded the past-due balance under the original payment schedule rather than the full, accelerated balance, and (2) the notice referred to acceleration as a future risk rather than a present reality. 616 Fed.App’x 677, 680 (5th Cir. 2015) (per curiam); see Boren v. US Nat’l Bank Ass’n,807 F.3d 99, 104 (5th Cir. 2015) (same).^[4]

However, as the Rojases point out, Citi never submitted its theory concerning abandonment to the trial court. Our appellate review of summary judgment is limited to those issues presented, in writing, to the trial court. TEX. R. CIV. P. 166a(c); Franks v. Roades, 310 S.W.3d 615, 625 n.6 (Tex. App.-Corpus Christi 2010, no pet.). Rule 166a(c) “unequivocally restrict[s] the trial court’s ruling to issues raised in the motion, response, and any subsequent replies,” and we cannot affirm summary judgment on grounds not expressly set out before the trial court. Stiles v. Resolution Tr. Corp., 867 S.W.2d 24, 26 (Tex. 1993).

Because Citi never submitted its abandonment theory to the trial court, we do not consider it as a basis for affirmance on appeal. See id. Instead, we employ the only potential date of accrual that was raised before the trial court: July 21, 2010.

C. Reasonable Diligence

The parties next dispute whether Citi timely and diligently served its suit. The Rojases submitted summary judgment proof which, they contend, shows that limitations expired before Citi accomplished service of its suit. According to the Rojases, it was therefore Citi’s burden to show that it acted diligently in pursuing service. The Rojases contend that because Citi made no attempt to explain the delay or demonstrate diligence, there remains a fact issue on limitations that is sufficient to defeat summary judgment.

Citi responds that because there was only an eight-day gap between the passing of limitations and the completion of service, Citi was diligent in pursuing service as a matter of law.

1. Applicable Law

A timely filed suit will not interrupt the running of limitations unless the plaintiff exercises due diligence in the issuance and service of citation. Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007) (per curiam). If service is diligently effected after limitations has expired, the date of service will relate back to the date of filing. Id.

When a defendant has affirmatively pleaded the defense of limitations and shown that service was not timely, the burden shifts to the plaintiff to prove diligence. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009). The plaintiff then has the burden to “present evidence regarding the efforts that were made to serve the defendant, and to explain every lapse in effort or period of delay.” Id. (quoting Proulx, 235 S.W.3d at 216). Generally, the question of the plaintiff’s diligence in effecting service is one of fact, though it may be determined as a question of law “when one or more lapses between service efforts are unexplained or patently unreasonable.” Proulx, 235 S.W.3d at 216.

The relevant inquiry is whether the plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances and was diligent up until the time the defendant was served. Id. Generally, diligence is determined by examining the time it took to secure citation, service, or both, and the type of effort or lack of effort the plaintiff expended in procuring service. Id.

The duty to use due diligence continues from the date the suit is filed until the date the defendant is served. Parsons v. Turley, 109 S.W.3d 804, 808 (Tex. App.-Dallas 2003, pet. denied); Taylor v. Thompson, 4 S.W.3d 63, 65 (Tex. App.-Houston [1st Dist.] 1999, pet. denied); Jimenez v. Cnty. of Val Verde, 993 S.W.2d 167, 170 (Tex. App.-San Antonio 1999, pet. denied); see Martinez v. Becerra, 797 S.W.2d 283, 285 (Tex. App.-Corpus Christi 1990, no writ).

2. Analysis

It is undisputed that the Rojases pleaded the affirmative defense of limitations. Further, the Rojases submitted summary judgment proof showing the following sequence of events: the foreclosure action began to accrue when Citi sent an unequivocal notice of acceleration on July 21, 2010; Citi timely filed its suit on June 23, 2014; limitations expired on July 21, 2014; but Citi did not serve the Rojases with suit until July 29, 2014. The Rojases’ proof showed untimely service, and the burden therefore shifted to Citi to prove diligence in the thirty-six days between the filing of suit and the completion of service. See Ashley, 293 S.W.3d at 179.

Rather than factually explaining the delay, Citi urges us to hold that because only thirty-six days elapsed between the filing of suit and service of process, this negligible delay shows diligence as a matter of law. Citi urges us to apply cases from the context of a plea in abatement, such as Curtis v. Gibbs, which also involved an evaluation of diligence in service. 511 S.W.2d 263 (Tex. 1974) (orig. proceeding). Citi contends that under Curtis, a minor delay in service shows “as a matter of law[] that there was no want of diligence.” See id. at 268. We cannot agree that these plea-in-abatement cases are strictly applicable here.^[5]

Although a thirty-six day delay between filing of suit and service is minor, see, e.g., Reynolds v. Alcorn, 601 S.W.2d 785, 788 (Tex. App.-Amarillo 1980, no pet.), a negligible delay in service does not necessarily translate to a showing of diligence as a matter of law in cases involving service beyond the statute of limitations. Instead, minimal delay simply means that a minimal explanation would have sufficed. “In cases of relatively short delay, such as here, it may take little evidence to prove that, as a matter of fact, the plaintiff acted as a reasonably prudent person and was diligent in obtaining service; however, it does take some evidence. We have none.” Mauricio v. Castro, 287 S.W.3d 476, 480 (Tex. App.-Dallas 2009, no pet.); see Rodriguez v. Tinsman & Houser, Inc., 13 S.W.3d 47, 51 (Tex. App.-San Antonio 1999, pet. denied) (finding no diligence as a matter of law where the plaintiff offered unsatisfactory explanation for a delay of thirty-six days between filing suit and, after limitations expired, serving suit); Perkins v. Groff, 936 S.W.2d 661, 668 (Tex. App.-Dallas 1996, writ denied) (finding similar delay of forty-seven days, with no explanation, to show lack of diligence as a matter of law).

Here, Citi submitted no “evidence regarding the efforts that were made to serve the defendant[s] and to explain every lapse in effort or period of delay.” See Ashley, 293 S.W.3d at 179. Accordingly, we cannot conclude that Citi carried its burden to demonstrate diligence in a manner that was sufficient to prove its entitlement to judgment as a matter of law.^[6] Instead, reviewing the record in the light most favorable to the non-movant, and indulging every reasonable inference and resolving any doubts against the motion, see Buck, 381 S.W.3d at 527, we conclude that the Rojases have demonstrated the existence of a fact issue concerning their affirmative defense of limitations. See Mena, 349 S.W.3d at 656. This issue of fact is sufficient to defeat summary judgment. See id.

We sustain the Rojases’ first issue, which disposes of this appeal. We need not address the Rojases’ remaining issue concerning compliance with the Texas Constitution. See TEX. R. APP. P. 47.1.

IV. CONCLUSION

We reverse the trial court’s grant of summary judgment and remand the case to the trial court for further proceedings consistent with this opinion.

[1] Citi refers to these instruments simply as a “note and deed of trust.” However, as the Rojases point out, the various instruments are more fully titled as follows: a “Loan Agreement,” in which the Rojases promised to repay the loan; the “Associates Freedom Loan Agreed Rate Reduction Rider,” which provided for the reduction of the applicable interest rate upon the Rojases’ timely completion of various stages of repayment; a “Texas Home Equity Agreement,” which set out terms related to Texas law on home-equity loans; an “Allonge to Note,” in which Citi endorsed the instruments in a non-recourse capacity; and a “Texas Home Equity Security Instrument,” in which the Rojases pledged their home as security for the loan.

[2] The Rojases offered other responsive arguments which are not at issue here. Furthermore, the Rojases filed counterclaims, which were also summarily adjudged in favor of Citi. On appeal, the Rojases do not challenge the summary judgment as to their counterclaims.

[3] Citi asserts that we may not imply a motion for extension of time, citing Brown v. State. No. 13-17-00109-CR, 2017 WL 930019, at *1 (Tex. App.-Corpus Christi Mar. 9, 2017, no pet.) (mem. op., not designated for publication). Brown is a criminal case, and it does not apply here, especially given that the Texas Court of Criminal Appeals has not adopted Verburgt’s holding “that an extension is implied if a notice of appeal is filed within fifteen days after the deadline.” Lair v. State, 321 S.W.3d 158, 159 (Tex. App.-Houston [1st Dist.] 2010, pet. ref’d); see Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996) (en banc) (“When a notice of appeal, but no motion for extension of time, is filed within the fifteen-day period, the court of appeals lacks jurisdiction to dispose of the purported appeal in any manner other than by dismissing it for lack of jurisdiction.”).

[4] But see Residential Credit Sols., Inc. v. Burg, No. 01-15-00067-CV, 2016 WL 3162205, at *4 (Tex. App.-Houston [1st Dist.] June 2, 2016, no pet.) (mem. op.) (rejecting the arguments relied upon by the Fifth Circuit and instead emphasizing that the lender did not take any of the actions that Holy Crosscited as sufficient to effect an abandonment: an agreement to abandon acceleration or continuing to accept payments without exacting any remedies available to it upon declared maturity); Fitzgerald v. Harry, No. 2-02-330-CV, 2003 WL 22147557, at *4-5 (Tex. App.-Fort Worth Sept. 18, 2003, no pet.) (mem. op.) (same); see also Denbina v. City of Hurst, 516 S.W.2d 460, 463 (Tex. Civ. App.-Tyler 1974, no writ) (holding that a nonsuit may effect an abandonment, as cited in Holy Cross).

[5] Where, as here, a plaintiff serves suit beyond the statute of limitations, our supreme court has established clear burdens of proof regarding the questions of timeliness and diligence, including the plaintiff’s burden to “present evidence regarding the efforts that were made to serve the defendant, and to explain every lapse in effort or period of delay.” Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009). By comparison, our supreme court has suggested that it remains an open question whether any similar burdens apply in the context of a plea in abatement. See In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 297 (Tex. 2016) (orig. proceeding) (assuming, without deciding, that the party seeking abatement had the burden to “explain the delay and the attempts at service”). We therefore decline to rely on cases such as Curtis in evaluating whether Citi adequately explained delays and demonstrated diligence, since it is uncertain whether such a burden even applies in the context of a plea in abatement.

[6] The Rojases did not pursue summary judgment against Citi’s foreclosure action on the ground of limitations, and we therefore may not consider whether summary judgment should have been granted in the Rojases’ favor. See Garner v. Corpus Christi Nat’l Bank, 944 S.W.2d 469, 476 (Tex. App.-Corpus Christi 1997, writ denied). We only hold that in the absence of any explanation, Citi has not conclusively negated the existence of a fact issue concerning untimely service.

Fortune-

JPMorgan Chase has been routing customer orders for bitcoin -related instruments, a spokesman said on Monday, despite the bank’s chief executive’s calling the crypto currency “a fraud.”

Like other Wall Street banks, JPMorgan acts as an agent for buyers and sellers of Bitcoin XBT, an exchange-traded note designed to track the value of the crypto currency.

JPMorgan does not take positions in the instrument with its own capital and routes the orders electronically to exchanges, JPMorgan spokesman Brian Marchiony said.

“They are not JPMorgan orders,” Marchiony said. “These are clients purchasing third-party products directly.”

[FORTUNE]

Monday, September 18, 2017

HUD ANNOUNCES DISASTER ASSISTANCE FOR GEORGIA STORM VICTIMS

Monday, September 18, 2017

HUD ANNOUNCES DISASTER ASSISTANCE FOR U.S. VIRGIN ISLANDS STORM VICTIMS

Thursday, September 14, 2017

SENATE CONFIRMS PAMELA PATENAUDE AS HUD’S DEPUTY SECRETARY

Thursday, September 14, 2017

HUD AWARDS $55 MILLION FOR HOUSING AND COMMUNITY DEVELOPMENT PROJECTS IN 77 NATIVE AMERICAN COMMUNITIES

Wednesday, September 13, 2017

HUD ANNOUNCES DISASTER ASSISTANCE FOR FLORIDA STORM VICTIMS

Monday, September 11, 2017

HUD ANNOUNCES DISASTER ASSISTANCE FOR PUERTO RICO STORM VICTIMS

Tuesday, September 5, 2017

SURVIVOR HOUSING A PRIORITY FOR THE FEDERAL AND STATE RECOVERY EFFORT AFTER HURRICANE HARVEY

Bloomberg-

Hillary Clinton says she made a mistake when she gave speeches on Wall Street after leaving government. Taking money from banks, she writes in her new memoir, created the impression she was in their pocket.

Her old boss doesn’t seem to share her concern.

Last month, just before her book “What Happened” was published, Barack Obama spoke in New York to clients of Northern Trust Corp. for about $400,000, a person familiar with his appearance said. Last week, he reminisced about the White House for Carlyle Group LP, one of the world’s biggest private equity firms, according to two people who were there. Next week, he’ll give a keynote speech at investment bank Cantor Fitzgerald LP’s health-care conference.

Obama is coming to Wall Street less than a year after leaving the White House, following a path that’s well trod and well paid. While he can’t run for president, he continues to be an influential voice in a party torn between celebrating and vilifying corporate power. His new work with banks might suggest which side of the debate he’ll be on and disappoint anyone expecting him to avoid a trap that snared Clinton. Or, as some of his executive friends see it, he’s just a private citizen giving a few paid speeches to other successful people while writing his next book.

“He was the president of the entire United States — financial services are under that umbrella,” said former UBS Group AG executive Robert Wolf, an early supporter who joined the Obama Foundation board this year. “He doesn’t look at Wall Street like, ‘Oh, these are individuals who don’t want the best for the country.’ He doesn’t stereotype.”

[BLOOMBERG]

image: thefreethoughtproject.com

EVERY SUNDAY
3:00 PM HAWAII
6:00 PM PACIFIC
9:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

Demoines Registry-

Iowa Attorney General Tom Miller’s office is investigating whether Wells Fargo harmed Iowa consumers through the fraudulent accounts scandal that has rocked the banking giant.

Assistant Attorney General Patrick Madigan said the Iowa office has been a part of a multistate investigation since late last year, but he could not comment on any potential findings.

“We’ve been involved from the beginning,” Madigan told The Des Moines Register. “And we are one of the leadership states in that effort. That’s all I can tell you.”

The office has made no official announcement of its role in the inquiry, Madigan said, but it hasn’t kept it under wraps either.

[DEMOINES REGISTRY]

CNBC-

image: mnuchin-foreclosure-robosign-Scott Applewhite AP

Bloomberg-

JPMorgan Chase & Co. Chief Executive Officer Jamie Dimon said he would fire any employee trading bitcoin for being “stupid.”

If a JPMorgan trader began trading in bitcoin, he said, “I’d fire them in a second. For two reasons: It’s against our rules, and they’re stupid. And both are dangerous.”

[BLOOMBERG]

Photographer: Marlene Awaad/Bloomberg

FRONTLINE PBS-

It’s a little-known chapter from the worst financial crisis since the Great Depression: In 2009, shortly after the housing market crashed and the markets melted down, the owners of a small community bank in New York City’s Chinatown discovered fraud within their loan department.

The bank’s owners, the Chinese-American Sung family, fired a loan officer — and reported the fraud to their regulators at the federal Office of Thrift Supervision.

But two-and-a-half years later, the bank was accused of mortgage fraud by the Manhattan District Attorney’s Office — making Abacus Federal Savings the only U.S. bank to be prosecuted in relation to the financial collapse and the first bank indicted in New York since 1991.

[FRONTLINE]