Garofolo v. Ocwen Loan Servicing, L.L.C.

497 S.W.3d 474, 59 Tex. Sup. Ct. J. 920, 2016 Tex. LEXIS 391, 2016 WL 2986237
CourtTexas Supreme Court
DecidedMay 20, 2016
DocketNO. 15-0437
StatusPublished
Cited by49 cases

This text of 497 S.W.3d 474 (Garofolo v. Ocwen Loan Servicing, L.L.C.) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garofolo v. Ocwen Loan Servicing, L.L.C., 497 S.W.3d 474, 59 Tex. Sup. Ct. J. 920, 2016 Tex. LEXIS 391, 2016 WL 2986237 (Tex. 2016).

Opinions

JUSTICE BROWN

delivered the opinion of the Court,

in which CHIEF JUSTICE HECHT, JUSTICE GREEN, JUSTICE WILLETT, JUSTICE GUZMAN, JUSTICE LEHRMANN, and JUSTICE DEVINE joined.

The Texas Constitution allows a home-equity lender to foreclose on a homestead only if the underlying loan includes specific terms and conditions. Among them is a requirement that a lender deliver a release of lien to the borrower after a loan is paid off. Another is that lenders that fail to meet their loan obligations may forfeit all principal and interest payments received from the borrower. In this case, a borrower sued her home-equity lender in federal court seeking forfeiture after her lender failed to deliver a release of lien. The borrower appealed the district court’s dismissal of her claims, and we accepted two certified questions from the United States Court of Appeals for the Fifth Circuit asking if we find a constitutional right to forfeiture or, alternatively, if forfeiture is available through a breach-of-contract action under these facts.

We answer “no” to both questions. Our constitution lays out the terms and conditions a home-equity loan must include if the lender wishes to foreclose on a homestead following borrower default. It does not, however, create a constitutional cause of action or remedy for a lender’s subsequent breach of those terms or conditions. A post-origination breach of those terms and conditions may give rise to a breach-of-contract claim for which forfeiture can sometimes be ah appropriate remedy. But when forfeiture is unavailable, as in this case, the borrower must show actual damages or seek some other remedy such as specific performance to maintain her suit.

I

In 2010, Teresa Garofolo took out a $159,700 home-equity loan with Ally Bank. [476]*476She made timely monthly payments and paid off the loan on April 1, 2014, at which time Ocwen had become the note’s holder. A release of lien was recorded in Travis County on April 28, but Garofolo did not receive a release of lien in recordable form as required by, her loan’s terms. Garofolo notified Ocwen she had not received the document. Upon passage of 60 days following that notification, and still without the release, Garofolo sued Ocwen in federal district court for violating home-equity lending provisions of the Texas Constitution and breach of contract. For both claims, Garofolo sought Ocwen’s forfeiture of all principal and interest she paid on the loan.

Both the release-of-lien1 and forfeiture2 provisions of Garofolo’s loan are among the terms and conditions the Texas Constitution requires of foreclosure-eligible home-equity loans. Garofolo therefore argues that Ocwen’s failure to deliver the release of lien amounted to a constitutional violation for which a constitutional forfeiture remedy is appropriate. And because the release-of-lien and forfeiture provisions were incorporated into Garofolo’s loan, she alternatively argues forfeiture is a remedy available through her breach-of-contract action. Because her constitutional claim “raises an important issue of Texas constitutional law as to which there is no controlling Texas Supreme Court authority, and the authority from the intermediate state appellate courts provides insufficient guidance,” 3 we accepted the following two certified questions from the Fifth Circuit4:

(1) Does a lender or holder violate Article XVI, Section 50(a)(6)(Q)(vii) of the Texas Constitution, becoming liable for forfeiture of principal and interest, when the loan agreement incorporates the protections of Section 50(a)(6)(Q)(vii), but the lender or holder fails to return the cancelled note and release of lien upon full payment of the note and within 60 days after the borrower informs the lender or holder of the failure to comply?
(2) If the answer to Question 1 is “no,” then, in the absence of actual damages, does a lender or holder become liable for forfeiture of principal and interest under a breach of contract theory when the loan agreement incorporates the protections of Section 50(a)(6)(Q)(vii), but the lender or holder, although filing a release of lien in the deed records, fails to return the cancelled note and release of lien upon full payment of the note and within 60 days after the borrower informs the lender or holder of the failure to comply?

II

In the first certified question, we are asked if Ocwen’s failure to deliver a release of lien amounts to a constitutional violation for which a constitutional forfei[477]*477ture remedy applies. If we answer “yes,” the myriad terms and conditions required for a home-equity loan -to be foreclosure-eligible, would amount to substantive constitutional rights and obligations. As such, a lender’s failure to honor them would give rise to not just a breach-of-contract claim, but a violation of the constitution itself. Our constitution’s plain language, however, compels us to answer “no.”

We strive to give constitutional provisions the effect their makers and adopters intended. See Stringer v. Cendant Mortg. Corp., 23 S.W.3d 353, 355 (Tex.2000). Accordingly, when interpreting our state constitution, we rely heavily on its literal text and give effect to its plain language. See Republican Party of Tex. v. Dietz, 940 S.W.3d 86, 89 (Tex.1997). We presume the constitution’s language was carefully selected, and we interpret words as they are generally understood. See Harris Cty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex.2009). And we construe constitutional provisions and amendments that relate to the same subject matter together and consider those amendments and provisions in light of each other. See Doody v. Ameriquest Mortg. Co., 49 S.W.3d 342, 344 (Tex.2001).

In Texas, “the homestead has always been protected from forced sale, not merely by statute as in most states, but by the Constitution.” Fin. Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 570 (Tex.2013) (citing Tex. Const. art. VII, § 22 (1845); Tex. Const. art. VII, § 22 (1861); Tex. Const. art. VII, § 22 (1866); Tex. Const. art. XII, § 15 (1869); Tex. Const. art. XVI, § 50 (1876)). Even during Texas’ days as a republic, statutory provisions conferred protected status on the homestead. Id. at 570 n. 8. (citing Act approved Jan. 26, 1839, 3d Cong., R.S., 1839 Repub. Tex. Laws 125, 125-26, reprinted in 2 H.P.N. Gammel, The Laws of Texas 1822-1897 at 125, 125-26 (Austin, Gammel Book Co. 1898)).

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Bluebook (online)
497 S.W.3d 474, 59 Tex. Sup. Ct. J. 920, 2016 Tex. LEXIS 391, 2016 WL 2986237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garofolo-v-ocwen-loan-servicing-llc-tex-2016.