the Bank of New York Mellon F/K/A the Bank of New York, as Trustee For The Certificateholders of the CWABS, Inc., Asset-Back Certificates, Series 2006-15 v. Nader Daryapayma and Fariba Daryapayma

Reversed and Remanded and Opinion Filed February 19, 2015

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00268-CV

THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS
TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE CWABS, INC., ASSET-
BACK CERTIFICATES, SERIES 2006-15, Appellant
V.
NADER DARYAPAYMA AND FARIBA DARYAPAYMA, Appellees

On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 13-06199

OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Francis
The Bank of New York Mellon appeals the trial court’s summary judgment in favor of

Nader and Fariba Daryapayma. In three issues, BONY claims the trial court erred by granting

summary judgment in favor of the Daryapaymas because their claims were barred by the statute

of limitations, BONY did not violate the home equity loan provisions of the Texas Constitution,

and BONY was entitled to equitable subrogation as a matter of law. For the reasons that follow,

we reverse the trial court’s judgment and remand this case for further proceedings.

On June 29, 2004, the Daryapaymas bought the house at 4561 Royal Lane and designated

it their homestead. To finance the purchase, they took out two loans: a first lien in the amount

of $650,000 and a second lien of $85,000. A little over two years later, Nader applied for a
home equity loan, stating in the application that the purpose of the refinance was “PAYOFF OF

MORTGAGE.” The property and home on Royal Lane appraised at $1.5 million. Nader signed

the $937,500 home equity loan note financed by Countrywide Home Loans, Inc.; both he and

Fariba signed the security agreement, pledging the house as collateral on the loan. After the

home equity loan closed, the first and second liens were paid in full, giving Countrywide a first

lien on the home. The Countrywide loan was later assigned to BONY.

When the Daryapaymas defaulted on the home equity loan, BONY filed an application

for a home equity loan foreclosure. In May 2011, the trial court granted the order and authorized

foreclosure of the lien. The property was purchased at a nonjudicial foreclosure sale, and BONY

filed a petition for forcible detainer. While that petition was pending, the Daryapaymas filed

their original petition in this case, claiming BONY had violated the Texas Constitution because

the combined total of the first and second liens and the home equity loan exceeded eighty percent

of the fair market value of the home. They claimed that, at the time Nader signed the home

equity note in late July 2006, the house was appraised at $1.5 million, eighty percent of which is

$1.2 million. The principal owing on the first and second liens was $735,000; therefore, “the

maximum amount of credit that could have been extended” to them was $465,000. Because the

home equity loan amount was $937,500, they claimed the aggregate total amount exceeded the

eighty percent allowed by the Texas Constitution and, as a result, BONY lost the right to all

principal and interest charged. They alleged claims for conversion, fraud, fraudulent

concealment, and breach of contract and sought to quiet title or remove cloud from title, rescind

the substitute trustee deed, and declare the home equity loan foreclosure order unenforceable.

The Daryapaymas filed a motion for traditional summary judgment on all claims except

the conversion, fraud, and fraudulent concealment causes of action. They argued, among other

things, they were entitled to a declaration that BONY violated the Texas Constitution. The trial

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court granted summary judgment on all claims raised in their motion, including rescinding the

substitute trustee deed and declaring the home equity loan foreclosure order unenforceable.

When BONY filed a counterclaim for equitable subrogation, the Daryapaymas filed another

motion for traditional summary judgment. The trial court granted summary judgment on the

subrogation claim in favor of the Daryapaymas, who then nonsuited their remaining claims.

BONY appeals.

In its second issue, BONY claims the trial court erred by granting summary judgment

because BONY did not violate the home equity loan provisions of the Texas Constitution. We

review the trial court’s summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d

860, 862 (Tex. 2010). To succeed in a traditional motion for summary judgment, the movants

must establish there are no genuine issues of material fact and they are entitled to judgment as a

matter of law. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). When reviewing a

summary judgment, we consider the evidence in the light most favorable to the nonmovant and

resolve any doubt in the nonmovant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,

548–49 (Tex. 1985).

When interpreting our state constitution, we rely heavily on its literal text and give effect

to its plain language. LaSalle Bank Nat’l Ass’n v. White, 246 S.W.3d 616, 619 (Tex. 2007). We

strive to give constitutional provisions the effect their makers and adopters intended. Doody v.

Ameriquest Mortg. Co., 49 S.W.3d 342, 344 (Tex. 2001). We avoid a construction that renders

any provision meaningless or inoperative. Stringer v. Cendant Mortg. Corp., 23 S.W.3d 353,

355 (Tex. 2000).

The home equity loan provisions of the Texas Constitution detail the terms and

conditions of a home equity loan and the rights and obligations of the borrower and lender. See

TEX. CONST. art. XVI, § 50(a)(6)(A)−(Q); Doody, 49 S.W.3d at 343. Homeowners who have

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either entirely repaid their home loans or who have accumulated equity in their homestead may

apply for a loan against that equity as long as the home equity loan

is of a principal amount that when added to the aggregate total of the outstanding
principal balances of all other indebtedness secured by valid encumbrances of
record against the homestead does not exceed 80 percent of the fair market value
of the homestead on the date the extension of credit is made.

TEX. CONST. art. XVI, § 50(a)(6)(B); Doody, 49 S.W.3d at 343.

The summary judgment evidence shows the Daryapaymas had a first lien of $650,000

and a second lien of $85,000 on their homestead. Nader applied for the home equity loan, stating

he wanted to refinance the existing loans and that the purpose of the refinance was “PAYOFF

OF MORTGAGE.” Nader signed the note, and both he and Fariba signed the document entitled

“TEXAS HOME EQUITY SECURITY INSTRUMENT (First Lien)” in favor of Countrywide.

Nader and Fariba each signed the Settlement Statement, which details how the $937,500 would

be disbursed, including $656,740.79 to “1st Mortgage Payoff,” $79,924.53 to “2nd Mortgage

Payoff,” and $152,533.11 to Nader and Fariba. The record also contains the release of both

liens, showing the outstanding balances from the June 2004 loans were paid in full at the

beginning of August 2006.1 This evidence shows the Daryapaymas applied for a home equity

loan to pay off the existing mortgages as well as to take out some of the equity accumulated in

their homestead.

Because the parties agreed the home equity loan was made, in large part, to pay off the

existing mortgages, the loan documents reflect this agreement, and the existing mortgages were

paid off, the balances of those existing mortgages should not be included when determining

whether the amount of the home equity loan exceeds eighty percent of the fair market value of

the homestead. In other words, in this case the “aggregate total of the outstanding principal

1
Although the loan documents were signed July 26, 2006, the loan could not be funded until July 31, 2006. See TEX. CONST. art. XVI,
§ 50(a)(6)(Q)(viii).

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balances of all other indebtedness secured by valid encumbrances” against the Daryapaymas’

homestead was zero because the home equity loan paid those debts in full. Because the

$937,500 home equity loan did not exceed eighty percent of the fair market value of the

Daryapaymas’ homestead, the loan did not violate the Texas Constitution. The trial court erred

by concluding otherwise. We sustain BONY’s second issue. In light of our disposition of this

issue, we need not address BONY’s other two issues. See TEX. R. APP. P. 47.1.

We reverse the trial court’s summary judgments in favor of the Daryapaymas and remand

this cause to the trial court for further proceedings consistent with our opinion.

140268F.P05 /Molly Francis/
MOLLY FRANCIS
JUSTICE

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

THE BANK OF NEW YORK MELLON On Appeal from the 193rd Judicial District
F/K/A THE BANK OF NEW YORK, AS Court, Dallas County, Texas
TRUSTEE FOR THE CERTIFICATE Trial Court Cause No. 13-06199.
HOLDERS OF THE CWABS, INC. Opinion delivered by Justice Francis,
ASSET-BACK CERTIFICATES, SERIES Justices Evans and Stoddart participating.
2006-15, Appellant

No. 05-14-00268-CV V.

NADER DARYAPAYMA AND FARIBA
DARYAPAYMA, Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion.

It is ORDERED that appellant The Bank of New York Mellon recover its costs of this
appeal from appellee Nader Daryapayma and Fariba Daryapayma.

Judgment entered February 19, 2015.

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