IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 97-10708
FIRST STATE BANK-KEENE,
Plaintiff-Appellee,
versus
METROPLEX PETROLEUM INCORPORATED, ET AL.,
Defendants,
JERRIE M. SMITH; MICHAEL HARRISON, Defendants-Appellants.
Appeal from the United States District Court for the Northern District of Texas
September 16, 1998
Before GARWOOD, DAVIS and EMILIO M. GARZA, Circuit Judges.
GARWOOD, Circuit Judge:
Defendants-appellants Jerrie M. Smith (Smith) and Michael
Harrison (Harrison) (appellants) appeal the district court’s
judgment declaring void their interest and claim to a parcel of
land that they purchased at a tax sale, which sale the district
court held to be void in its entirety. We reverse.
Facts and Proceedings Below
On March 24, 1988, Metroplex Petroleum, Inc. (Metroplex), in Richardson, Texas, executed and delivered to First National Bank of
Richardson (FNB) a promissory note in the principal sum of $266,400
(the Note), and a deed of trust (the Deed of Trust), on a tract of
real property located in Grand Prairie, Texas (the Property), to
secure the Note. Because of default in payment, the Note was duly
accelerated and full payment was demanded by FNB on June 23, 1989.
Payment was not made.
On June 30, 1989, FNB was declared insolvent and the Federal
Deposit Insurance Corporation (FDIC) was appointed as Receiver for
the failed institution. The Note and Deed of Trust passed to the
FDIC at that time.
In 1991, the City of Grand Prairie and the Grand Prairie
Independent School District brought suit in a Texas court (the "tax
suit") against Metroplex for delinquent ad valorem taxes and sought
to foreclose their statutory tax liens against the Property.
Dallas County intervened as a plaintiff. FNB, the Internal Revenue
Service (IRS), and the State of Texas were named as in rem
defendants. The FDIC was not named as a party in any capacity.
Citation on "Comerica, Formerly First National Bank of Richardson"
was served on Comerica Bank-Texas (Comerica) due, apparently, to
the impression, which was mistaken, that Comerica had succeeded to
certain of the rights and assets of FNB, including the Note and
Deed of Trust. The FDIC, which was the actual successor-in-
interest to FNB, was not joined as a party to the tax suit and did
2 not consent to the foreclosure or subsequent sale of the Property.
On November 8, 1991, judgment in the tax suit was rendered in
favor of the plaintiffs ("the Taxing Units").1 Judgment was
rendered against defendant Metroplex in the amount of $8,797 in
delinquent taxes, penalties, and interest for the years 1989 to
1991.2 The judgment foreclosed the tax liens and ordered sale of
the property by the Dallas County Sheriff.
On March 5, 1992, Smith purchased the property for slightly
more than $10,000, a sum in excess of the judgment amount, at a tax
sale conducted by the sheriff (hereinafter the “tax sale”).
Appellants have been in possession of the Property since that time.
On March 22, 1996, the FDIC filed suit in the court below
against appellants, Metroplex, and the Taxing Units seeking: 1) a
declaration that the tax suit judgment and sheriff’s sale were void
in their entirety; 2) a declaration that appellants’ claimed
ownership of the property by virtue of their purchase at the tax
sale was void and extinguished; 3) a judgment against Metroplex for
the unpaid balance of the Note; and 4) a judgment foreclosing the
Deed of Trust lien against the Property. Metroplex, though served,
did not appear or answer. Appellants answered, asserting the
1 The plaintiffs (Taxing Units) were the City of Grand Prairie, Grand Prairie Independent School District, and Dallas County. 2 As to the in rem defendants, the judgment recited that Comerica filed an answer, but did not appear, and disclaimed any interest in the property; Metroplex did not answer or appear; the IRS did not answer or appear; and the State of Texas answered, disclaiming any interest in the property.
3 affirmative defenses of the statute of limitations and adverse
possession under color of title. While the suit was pending in the
district court, the FDIC transferred the Note and Deed of Trust to
First State Bank--Keene (“FSB”), which was substituted as plaintiff
in the district court.
The case was tried to the bench on stipulated facts. The
district court found that FNB and the FDIC had not been joined as
parties to the tax suit. The court held that the FDIC was a
necessary party and that failure to join the FDIC rendered the tax
suit and subsequent tax sale entirely void. The court further held
that appellants had not gained title by adverse possession because
they did not claim under color of title. Additionally, although
the court found that the suit had not been filed by the FDIC within
the applicable limitations period, it held that appellants lacked
standing to assert the limitations defense. Accordingly, judgment
was rendered in favor of FSB. The judgment, inter alia, declared
the sheriff’s sale null and void, ordered the Taxing Units to pay
Smith the amount they had received from him for the Property at the
tax sale, and ordered foreclosure and sale of the Property in
satisfaction of the judgment.3
In the proceeding before the district court, the Taxing Units
3 The district court’s judgment ordered that Metroplex pay FSB $491,769.96; that the Taxing Units reimburse Smith the amount they received from him for the Property at the tax sale; that FSB have foreclosure on its lien; and that the Property be sold at a sheriff’s sale in satisfaction of the judgment.
4 did not challenge the court’s holding that the tax sale was void,
and they have not appealed.
Discussion
I. Limitations
Appellants’ principal defense to FSB’s attempted foreclosure
was that the note was barred by limitations. It is clear that if
the note was barred by limitations and if appellants had standing
to assert limitations, that then FSB could not enforce its lien
against the Property. The district court correctly ruled that the
applicable limitations period was that provided by 12 U.S.C. §
1821(d)(14)(A)(i), namely six years, or the applicable period under
state law, whichever is longer. The six-year period begins to run
on the date the cause of action accrues or the date the FDIC is
appointed receiver, whichever is later. 12 U.S.C. §
1821(d)(14)(B). See Davidson v. FDIC, 44 F.3d 246 (5th Cir. 1995).
Here the stipulated facts reflect that the cause of action accrued
not later than June 24, 1989, and the FDIC was appointed receiver
June 30, 1989, so the six-year period had run by July 1, 1995, but
the FDIC’s suit was not filed until March 1996, more than eight
months after limitations had run. FSB does not challenge the
district court’s determination that the applicable limitations
period is six years, and does not assert that any longer period is
provided under state law; nor does FSB claim that the running of
limitations was interrupted or tolled, and the district court did
5 not so find (nor do we see any basis for such a finding).
Consequently, the debt was plainly barred by limitations. It is
settled under Texas law, which is controlling for these purposes
here, that if the debt is barred by limitations, the deed of trust
lien is likewise invalid, as the lien is a mere incident of the
debt. Davidson at 252-253. The question then becomes whether
appellants had standing to plead limitations. The district court
ruled that appellants lacked the required standing. The Texas rule
is correctly stated in 50 Tex. Jur. 3d, Limitation of Actions, § 18
(1986), as follows:
“The defense of limitations is generally a personal privilege of the debtor. The right to invoke the bar of limitations against a remedy passes, however, to one who lawfully acquires property or any right on which the remedy operates, such as a lienholder or subsequent purchaser.” (Footnotes omitted).
See also Miller, Hiersche, Martens & Hayward P.C. v. Bent Tree
National Bank, 894 S.W.2d 828, 829 (Tex. App.-Dallas, 1995); Skaer
v. First National Bank of Paris, 293 S.W. 228, 229 (Tex. Civ. App.-
Texarkana 1927, writ ref’d); Levy v. Williams, 49 S.W. 930, 931
(Tex. Civ. App., 1899). This is also the general rule. See Boys
Town, USA, Inc. v. World Church, 349 F.2d 576, 579 (9th Cir. 1965),
cert. denied, 86 S.Ct. 894 (1966); 51 Am. Jur. 2d, Limitation of
Actions, § 392 (1970).4
4 “Since the statute of limitations is a plea personal to the debtor, it follows that the statute of limitations may not be availed of by one who is a stranger to the debtor,
6 The district court held that appellants lacked standing to
plead limitations because they had no interest in the Property, and
were not in privity with Metroplex, because the tax suit judgment
and the tax sale were wholly void and transferred no interest
whatever in the Property to Smith. That then is the central issue
in the case.
II. Effect of Tax Sale
FSB, as the FDIC’s successor-in-interest, contends that the
tax suit judgment was fatally defective because the FDIC was not
made a party to the tax suit. Consequently, they argue, the
subsequent tax sale was entirely void and thus had no effect
whatsoever as to any of the various interests in the Property. As
a result, FSB asserts that the district court was correct in
holding that appellants lacked standing to assert a statute of
limitations defense. Appellants argue to the contrary that,
despite the omission of the FDIC as a party defendant, the tax suit
and subsequent sale were valid and binding as to the parties which
were properly before the court in that suit. Accordingly, they
argue that they had standing as successors-in-interest to Metroplex
standing in no relation of privity of estate with him. On the other hand, where there is a privity between a person who could, if sued, plead the statute and the party offering to plead it, the latter may plead it to save his property. Such is the case with heirs, mortgagees, cotenants joining in a mortgage, and transferees of mortgaged property.” Id. (footnotes omitted).
7 to assert that the limitations period had run on the note and,
consequently, that FSB could no longer exercise its power of sale
under the deed of trust.
On appeal, FSB and appellants rely on both Texas and federal
law as supporting their respective positions, proffering
alternative arguments based on each.
As noted, the central issue on this appeal is whether the
district court erred in holding that the appellants lacked standing
to assert a limitations defense against FSB. Resolution of this
question, however, requires determination of whether the tax suit
judgment and the subsequent tax sale were entirely void, because
appellants’ principal claim to standing to assert limitations is
based on their having obtained some interest in the Property at the
tax sale, thereby placing them in privity with Metroplex.
A. State Law Arguments
Appellants claim that under Texas law “although a lienholder
who is not made a party is not bound by the judgment rendered, the
judgment is valid and operative as against those who were actually
made parties.” Thus appellants argue that the tax suit judgment
was valid as to Metroplex, the owner of the Property, and the tax
sale conveyed such interest as Metroplex possessed. Appellants
also assert that because the FDIC was not made a party to the tax
suit, it is not bound by the judgment and, consequently, no action
taken pursuant to the tax suit judgment had the effect of
8 disturbing the FDIC’s lien interest. Thus, appellants claim that
the tax suit judgment was dispositive of Metroplex’s interest in
the Property, which was conveyed to them pursuant to the tax sale,
but that because the FDIC was not party to the tax suit, the
judgment did not affect its lien interest, and, accordingly, that
they took the Property subject to the FDIC’s lien, just as if
Metroplex had conveyed it to them subject to the lien.
FSB disputes appellants’ interpretation of the applicable
Texas law, claiming that the FDIC was a “necessary party” to the
tax suit and, therefore, that failure to join the FDIC renders the
judgment entered pursuant to the tax suit void in its entirety.
According to FSB, the Texas rule is that “as between the tax sale
purchaser and the interested person who was not made a party to the
tax suit, the tax sale purchaser’s interest is void.” Accordingly,
FSB contends that appellants’ interest in the Property is
necessarily void.
B. Federal Law Arguments
Turning to the parties’ federal law arguments, both appellants
and FSB cite 12 U.S.C. § 1825(b)(2) as supporting their respective
positions. Section 1825(b)(2), enacted as part of the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989
(FIRREA), Pub.L. No. 107-173, 103 Stat. 183 (1989), provides that
“[n]o property of the [FDIC] shall be subject to levy, attachment,
garnishment, foreclosure, or sale without the consent of the
[FDIC], nor shall any involuntary lien attach to the property of
9 the [FDIC].”
Appellants argue, inter alia, that section 1825(b)(2) relates
only to the FDIC’s lien, not to Metroplex’s “equity.” Appellants
also argue that, by its express terms, section 1825(b)(2) prevented
foreclosure of the FDIC’s lien interest irrespective of whether the
FDIC was made a party to the tax suit. Accordingly, they argue,
the FDIC could not have been a “necessary party” to the tax suit
because, pursuant to the prohibition of section 1825(b)(2), the
state court lacked authority to extinguish the FDIC’s lien.
FSB contests appellants’ interpretation and application of
section 1825(b)(2). It also argues that the tax suit may well have
been invalid pursuant to section 1825(b)(2) because the FDIC did
not consent to the tax sale, which purported to vest “good and
perfect title” in the purchaser, extinguishing all prior lien
interests pursuant to the authority of Texas state law. See Tex.
Tax Code Ann. § 34.01(d) (Vernon 1992).
C. Analysis of Texas Law
With respect to the Texas law arguments, both the case law and
authorities cited favor the position of the appellants. As FSB
concedes, some of the relevant cases are difficult to reconcile,
but the substantial majority of the cases hold that failure to join
a lienholder in a tax foreclosure suit does not render a subsequent
judgment void as to the parties who were joined in the suit. As
stated in 69 Tex. Jur. 3d, Taxation, § 461 (1989), a tax deed
10 “vests good and perfect title” in the purchaser “to [such] interest
owned by the defendant,” but is “subject to the rights of any
person who had some interest in the property and therefore should
have been joined as a party in the suit but was not so joined.”
The majority of relevant cases state the same rule. For
example, in Tabasco Consol. Indep. School Dist. v. Reyna’s Estate,
93 S.W.2d 796 (Tex. Civ. App.--San Antonio 1936), the court held
that although both Texas statutory and decisional authority
“provides and contemplates that all proper persons, including lienholders, shall be joined in suits for the collection of taxes against property in this state. It is likewise true that the failure on the part of the tax collecting authority to join all parties interested in the property in the suit shall be no defense or constitute any reason to delay judgment or action against those owners who may be properly before the court.” Id. at 798.
This rule was explained by the fact that “[t]hose owners who are
not parties defendant are not concluded, and their rights are not
injured by the judgment entered.” Id.
This appears to be essentially the same rule as is stated in
the cases relied on by FSB as well. For example, in Bussan v.
Donald, 244 S.W.2d 271 (Tex. Civ. App.--Fort Worth 1951, writ ref’d
n.r.e.), one of three cases relied upon by FSB, the court explained
that,
“strangers to a judgment, that is, [persons] who are not parties or privy to a proceeding, may, when their interests are adversely affected by the judgment, impeach it whenever it is attempted to be enforced against them.” 244 S.W.2d at 273 (citation omitted).
11 As is implied by this passage, the judgment is not wholly void, but
simply provides a basis upon which a lienholder may collaterally
attack the judgment if it is sought to be enforced against him. As
further stated in Bussan, “the prior lien holder . . . , not being
a party to [the foreclosure] suit, was not bound thereby,” and
“could attack it collaterally when appellants asserted it against
his title.” 244 S.W.2d at 274. All of the cases either called to
our attention by the parties or revealed by our review of Texas
case law indicate that the cases are in substantial accord and
support the rule as stated by the appellants.5
In sum, “[a] judgment in a tax suit is not void because all
parties who own an interest in the property are not made parties.
Such judgment foreclosing the tax lien is good as against the
parties in interest joined in the suit, and parties not joined are
not bound by any such judgment.” Loper v. Meshaw Lumber Co., 104
S.W.2d 597, 599-600 (Tex. Civ. App.--Eastland 1937, writ dism’d).
5 See Whitehead v. Garbury Indep. School Dist., 45 S.W.2d 421 (Tex. Civ. App.--Fort Worth 1931), in which the court stated that lienholders are proper parties, but, “that the failure to implead one or more of the interested parties did not deprive the trial court of power to render a valid judgment as to those actually impleaded.” Id. at 423 (citation omitted). Cf. Coakley v. Reising, 436 S.W.2d 315, 318 (Tex. 1968) (“[A] judgment by a taxing agency is not binding upon a person who is not a party to the suit, when his ownership is evidenced by an unrecorded document, if the taxing authority has actual or constructive notice of his title or ownership.”). Thus, while the cases state that a lienholder should, or sometimes “must,” be joined, the cases uniformly hold that failure to do so does not wholly invalidate the judgment, but rather renders it “non-binding” upon the omitted lienholder.
12 Accordingly, we hold that the 1991 tax suit was not wholly void,
but because the FDIC was not made a party to the suit, its lien
interest was not disposed of and appellants took the Property
subject to the FDIC’s lien, just as they would have had Metroplex
convey it to them subject to the FDIC’s lien but without the FDIC’s
knowledge or consent.
D. Analysis of Federal Law
The fundamental issue implicated by the federal law arguments
on appeal involves whether, and to what extent, section 1825(b)(2)
is incompatible with the Texas state laws governing foreclosure of
tax liens against real property and the subsequent conveyance of
that property at a tax sale.
In one of our most recent pronouncements on this question,
FDIC v. Lee, 130 F.3d 1139 (5th Cir. 1997), we held that a tax sale
under Louisiana law violated section 1825(b)(2). In Lee, the FDIC,
in its capacity as receiver for a failed bank, succeeded to a
mortgage on a parcel of land located in Jefferson Parish,
Louisiana. The owner of the land failed to pay the taxes due,
resulting in the transfer of the property at a tax sale. Because
the FDIC’s lien interest in the land was not properly recorded, and
because it had failed to request a notice of tax delinquency
pursuant to Louisiana statute, the FDIC was not informed of the
sale of the property. Soon after the sale, however, the tax sale
purchaser contacted the FDIC to inquire whether it intended to file
13 for redemption of the property. The FDIC took no action for
approximately three years, but eventually filed a writ of mandamus
in state court seeking to compel the issuance of a redemption deed.
Id. at 1140. The state court denied and dismissed the writ because
the FDIC refused to reimburse the tax sale purchaser for repairs
and maintenance of the property as was required under the Louisiana
statute governing redemption. Id. The FDIC subsequently filed
suit in federal court seeking to have the tax sale declared void,
arguing that the sale had violated its constitutional due process
right to notice. Id. We based our holding on the ground that the
tax sale violated section 1825(b)(2) because the FDIC had not
consented to the sale. Id. at 1143. We reasoned that the
provision’s prohibition on “foreclosures” applied to tax sales as
conducted under Louisiana state law, and stated that “[t]he
controlling principle of this case is that 12 U.S.C. § 1825(b)(2)
represents the express will of Congress that the FDIC must consent
to any deprivation of property initiated by the state.” Id. at
1143. We held “that the tax sale was conducted without the consent
of the FDIC” and, accordingly, “violated 12 U.S.C. § 1825(b)(2) and
thus is null and void.” Id.
In Trembling Prairie Land Co. v. Verspoor, 145 F.3d 686 (5th
Cir. 1998), we applied the reasoning of Lee to a case in which the
FDIC sought to redeem property subject to an FDIC lien that had
been sold at a tax sale without its consent. We held that the
14 FDIC’s right of redemption constituted “property” within section
1825(b)(2). Id. at 690. Concluding that tax sales under Louisiana
law were functionally equivalent to the Texas foreclosure
procedures, we held the tax sale “null and void” because it had
been conducted in violation of section 1825(b)(2). Id. at 690-91.
In summarizing the rationale of our holding, we quoted our previous
statement in Lee that section 1825(b)(2) “represents the express
will of Congress that the FDIC must consent to any deprivation of
property initiated by a state.” Id. at 691 (citation omitted).
In both Lee and Verspoor, we summarized section 1825(b)(2) as
requiring that the FDIC must consent to any “deprivation” of
property initiated by the state. This simple articulation of the
undergirding principle of section 1825(b) accurately represents the
analytical thread that runs through the line of cases interpreting
this provision. Obviously, the FDIC cannot be “deprived” of any
property interest it never owned. Here, the FDIC never had more
than a lien; it never had the right to prevent transfer of the
Property (or an interest therein) subject to its lien; and it never
had the right to prevent Metroplex, or any party holding an
interest in the Property under Metroplex, from pleading the statute
of limitations once the statute had run.
For example, in Irving Indep. School Dist. v. Packard
Properties, 970 F.2d 58, 62 (5th Cir. 1992), we rejected an
argument by the FDIC that certain preexisting liens securing
15 previously-assessed penalties had “the same effect as the
imposition of a direct liability” and therefore violated 12 U.S.C.
§ 1825(b)(2) and (3). We concluded that allowing enforcement of
these preexisting liens subsequent to sale of the assets by the
FDIC did not constitute a deprivation of the FDIC’s “property.” We
reasoned that because the liens had been in place when the FDIC
acquired the assets, the “liens have not caused a reduction in the
value of the receivership’s assets,” explaining that the “assets
have the same value today that they had when the FDIC obtained
them.” Id. Because of this, we held that section 1825(b)(2) did
not apply and that the preexisting liens could be enforced upon the
FDIC’s sale or disposal of the encumbered assets. Id. Although we
did not expressly state our conclusions in those terms, the key to
our holding was that allowing future enforcement of the liens did
not constitute a deprivation of the FDIC’s property.
Because the term “property” has come to be somewhat broadly
construed in the context of section 1825(b)(2), there exists a vast
number of potential interests sufficient to constitute “property”
under that provision. This makes the requirement that there be an
actual “deprivation” crucial in analyzing whether a particular
action taken under state law violates section 1825(b)(2). The
reasoning of Irving illustrates our point as well as the
distinction we seek to make. Absent some actual devaluation of, or
loss of rights in, FDIC “property,” there is no “deprivation of
16 property” and section 1825(b)(2) is not violated under Lee. In
Lee, the state court held that under Louisiana law, redemption of
the property by the FDIC would only be allowed if the FDIC
reimbursed the tax sale purchaser for repairs and maintenance of
the property. 130 F.3d at 1140. Thus, the application of state
law would have subjected the FDIC to payment of an additional,
nonconsensual fee before it could exercise its rights under the
mortgage as they had existed prior to the tax sale. In other
words, the “deprivation” in Lee appears to have been the
requirement that the FDIC pay to redeem the property, rather than
the mere transfer of title pursuant to the tax sale.
Similarly, in Verspoor the FDIC succeeded to a right of
redemption, which a tax sale purchaser sought to extinguish by
means of a suit to quiet title. 145 F.3d at 690. We held that the
“property” involved in Verspoor was the right to redeem the land
that had been sold at the tax sale. Id. The suit to quiet title
sought, by operation of state law, to extinguish this right,
thereby depriving the FDIC of “property” without its consent. As
in Lee, we assume that the FDIC had no particular interest in who
held legal title to the property in question as long as the FDIC’s
equitable rights in the property were not prejudiced and could be
exercised at the discretion of the FDIC without additional cost.
In addition, we note that in the two cases in which we have
considered tax sales under Texas law, Matagorda County v. Russell
17 Law, 19 F.3d 215 (5th Cir. 1994), and Donna Indep. School Dist. v.
Balli, 21 F.3d 100 (5th Cir. 1994), we held that the tax liens
could be foreclosed as long as the FDIC’s interests were preserved.
In Matagorda, we stated that, although this was a permissible
solution, it was not a realistic one under the circumstances of
that case. 19 F.3d at 225 n.11. We also acknowledged that the
FDIC itself had endorsed this general position. Id. at 223 n.7.
In Balli, we affirmed the district court’s judgment, which held
that the taxing units were permitted to foreclose their liens, but
“decreed that foreclosure on the tax liens would be subject to the
FDIC’s deed of trust liens.” Id. at 101.
In the case at bar, the FDIC’s “property” in question consists
of the FDIC’s mortgage on the Property. Unlike the actions taken
pursuant to state law in Lee and Verspoor, the foreclosure and tax
sale under Texas law did not extinguish the FDIC’s lien because the
FDIC was not joined in the tax suit. The FDIC’s lien was not
devalued, extinguished, or disturbed in any manner. The appellants
took the Property subject to the FDIC lien, and the FDIC’s ability
to enforce its rights under the lien were not prejudiced thereby.
It had all the same rights following the judgment in the tax suit
and the consequent tax sale as it did before the tax suit was
filed. The FDIC could then have exercised its power of sale under
the deed of trust against appellants just as easily as it could
have prior to the tax suit judgment and tax sale. The FDIC was in
18 no different position following the tax suit and tax sale than it
would have been had there been no such tax suit and tax sale and
Metroplex had in March 1992 conveyed the Property (without the
knowledge or consent of the FDIC) to Smith subject to the FDIC’s
lien. Consequently, we hold that the tax sale did not constitute
a deprivation of the FDIC’s property, and thus did not violate
section 1825(b)(2). Accordingly, we conclude that the tax sale was
not “null and void” in its entirety and did effectively convey such
interest in the Property as was held by Metroplex, the mortgagor-
owner, to the appellants, subject to the FDIC’s lien.
Conclusion
Having concluded that the tax sale which transferred title
from Metroplex to the appellants was not void in its entirety,
either under Texas state law or pursuant to the restrictions of 12
U.S.C. § 1825(b)(2), we hold that the district court erred in
holding that appellants lacked standing to assert that the six-year
statute of limitations provided by FIRREA had run. As the
stipulated facts clearly demonstrate that the six-year limitations
period had run months prior to the filing of this suit, the FDIC’s
lien against the Property likewise had become unenforceable and was
barred when the suit was filed. Accordingly, the judgment of the
district court is reversed and the cause is remanded for entry of
judgment consistent with this opinion.
19 REVERSED and REMANDED