Davidson v. F.D.I.C.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 93-8335
__________________

WILLIAM C. DAVIDSON, P.C.,

Plaintiff-Appellant,

versus

FEDERAL DEPOSIT INSURANCE CORPORATION
AS RECEIVER FOR UNITED BANK OF TEXAS,

Defendant-Intervenor-Appellee.

______________________________________________

Appeal from the United States District Court
For the Western District of Texas
______________________________________________

(January 25, 1995)

Before GARWOOD and EMILIO M. GARZA, Circuit Judges, and HEAD,*
District Judge.

GARWOOD, Circuit Judge:

Plaintiff-appellant William C. Davidson (Davidson) brought

this suit to enjoin and, ultimately, to set aside a nonjudicial

foreclosure sale of his property conducted on behalf of the Federal

Deposit Insurance Corporation (the FDIC) as receiver for United

Bank of Texas. Following the district court's entry of judgment

for the FDIC as receiver, Davidson filed a timely notice of appeal.

*
District Judge of the Southern District of Texas, sitting by
designation.
We affirm.

Facts and Proceedings Below

The facts in this case are undisputed. On October 5, 1983, R.

Bird Corporation, a Texas corporation, acting through its president

Richard Bird, executed a "Real Estate Note" for $350,000 payable,

principal and interest, on April 13, 1984, to United Bank of Texas

(the Bank) in Travis County, Texas. The note, as recited therein,

was secured by a lien on a tract of land located in Travis County,

Texas (the Property), described in a deed of trust dated October 5,

1983, and recorded in the Travis County, Texas real property

records. The note and deed of trust likewise recite that the note

is in part payment of the purchase price of the property and is

also secured by a vendor's lien retained in deed of even date of

the property to the maker of the note. The deed of trust contained

a clause granting the Bank's trustee a power to sell the Property

in the event of default in the note. The note's due date passed,

but the Bank did not foreclose. Thereafter, on October 6, 1986, R.

Bird Corporation deeded the Property to Richard Bird; in the deed,

Richard Bird assumed the outstanding indebtedness against the

Property.

On June 4, 1987, the Texas Banking Commissioner declared the

BankSQa Texas bank, the deposits of which were insured by the

FDICSQinsolvent and appointed the FDIC receiver of the Bank.

Vernon's Ann. Tex. Civ. Stats. art. 489b, §§ 1,3. As the Bank's

receiver, the FDIC acquired the Bank's assets, including the deed

of trust and the promissory note, the cause of action on which

accrued April 13, 1984, the date the note became past due. On

2
March 27, 1990, almost six years after the note became past due and

almost three years after the FDIC became receiver, Davidson

acquired the Property from Richard Bird and subsequently invested

approximately $8,000 in repairs to the improvements thereon.

In March 1992, Davidson petitioned a Texas state court for

injunctive relief against the Bank's substitute trustee under the

deed of trust, seeking to prevent a proposed nonjudicial

foreclosure on the Property. After the state court granted a

temporary restraining order, the FDIC as receiver intervened as a

defendant and removed the case to the district court below, where

Davidson's request for injunctive relief was denied on April 6,

1992. The next day, the Bank's substitute trustee, acting on

behalf of the FDIC as receiver, conducted a nonjudicial foreclosure

sale in Travis County in accordance with the deed of trust. The

FDIC as receiver was the successful bidder at the sale, purchasing

the Property for a $104,300 credit on the note.

Davidson claimed the sale was untimely and asked the district

court to set it aside on that basis. After a bench trial on

stipulated facts, the district court entered judgment for the FDIC

as receiver. The court held that the sale was valid because it

took place within the six-year limitations period of the Financial

Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA),

Pub.L. 101-73, 103 Stat. 183 (1989); 12 U.S.C. § 1821(d)(14).

Davidson now appeals, principally arguing that, on the date FIRREA

became effective, the deed of trust had already become void under

Texas law and therefore could not be revived.

3
 Discussion

The ultimate issue in this case is whether the power of sale

contained in the Bank's deed of trust acquired by the FDIC as

receiver was still enforceable on August 9, 1989, the date FIRREA

became effective. Resolution of that issue initially turns on

whether the claim was valid when acquired by the FDIC on June 4,

1987. If time-barred or otherwise void under state law at the time

of the FDIC's appointment as receiver, the claim cannot be revived

merely because a government agency holds it. F.D.I.C. v. Dawson,

4 F.3d 1303, 1306-07 (5th Cir. 1993), cert. denied, 114 S.Ct. 2673

(1994); see also R.T.C. v. Seale, 13 F.3d 850, 853 (5th Cir. 1994)

(government cannot revive claims that are stale when acquired

unless Congress explicitly directs otherwise); F.D.I.C. v. Belli,

981 F.2d 838, 842-43 (5th Cir. 1993); F.D.I.C. v. Bledsoe, 989 F.2d

805, 808 (5th Cir. 1993). An acquired claim is thus valid if, at

the time of the FDIC's appointment as receiver, it is still good

under the law that created it. In Texas, a mortgage is an incident

of the debt; it is therefore generally enforceable so long as the

debt itself is enforceable, which is to say, four years after the

cause of action on the debt accrued. Tex. Civ. Prac. & Rem. Code

§§ 16.004(a)(3) (debt), 16.035 (power of sale) (1986). Here, as

the parties concede, the FDIC became receiver and acquired the deed

of trust some three years after the cause of action on the note

accrued; the claim was therefore good at the time of the FDIC's

appointment.

The problematic issue in this case, then, is whether the deed

of trust remained enforceable on the effective date of FIRREA,

4
August 9, 1989. That is, although both sides concede the validity

of the claim when the FDIC was appointed, both dispute what

happened to the claim in the intervening two years between the

FDIC's appointment as receiver and the effective date of FIRREA.

If the claim died in the interim, FIRREA does not revive it, and

the foreclosure should have been set aside. If the claim survived

the interim, then the limitation provisions of FIRREA apply, and

the foreclosure was timely.1

Accordingly, the emphasis in this litigation has been on what

law applies during the two-year period between the FDIC's

appointment and FIRREA. The district court concluded that, once

the FDIC acquired the Bank's claim, the six-year general

limitations period of 28 U.S.C. § 2415(a), the general statute of

limitations for contract actions, relayed the deed of trust beyond

FIRREA's effective date. In other words, because the deed of trust

was valid when acquired, the Texas four-year limitations period was

displaced by the six-year federal rule under 28 U.S.C. § 2415(a),

which in turn carried the deed of trust over FIRREA's effective

date and into the safe harbor of FIRREA's own six-year limitations

period. According to the reasoning of the district court, it was

1
FIRREA explicitly imposes a six-year statute of limitations
on "any contract claim" brought by the FDIC as a receiver. 12
U.S.C. § 1821(d)(14)(A)(i)(I). According to section
1821(d)(14)(B)(i), the limitations period began in this case on
the date of the FDIC's appointment as receiver, June 4, 1987, and
ended on June 4, 1993. Therefore, if FIRREA applies to this
case if, in other words, the claim acquired by the FDIC receiver
was valid on the effective date of FIRREA, then the April 1992
foreclosure was timely. See F.D.I.C. v. Belli, 981 F.2d 838,
842-43 (5th Cir. 1993) (section 1821(d)(14) does not revive
claims that expired before FIRREA's effective date of August 9,
1989).

5
by way of this statute-of-limitations relay race that the

foreclosure avoided a time bar.

Section 2415(a) provides in part, "[E]very action for money

damages brought by the United States . . . or agency thereof which

is founded upon any contract . . . shall be barred unless the

complaint is filed within six years after the right of action

accrues." Because the debt was not barred on June 4, 1987, when

the FDIC was appointed receiver, the debt then became subject to

section 2415(a)'s six-year limitations period, calculated from the

note's April 13, 1984, maturity. Belli at 840-42; Bledsoe at 807

& n.4. But for FIRREA, the debt would thus have become barred

April 13, 1990. Because the debt was not barred when FIRREA became

effective August 9, 1989, FIRREA's six-year limitations period,

which is calculated from June 4, 1987, meant that the debt would

not be barred until June 1993, well after the foreclosure (see note

1, supra). Bledsoe at 808-809.

Davidson argues that section 2415(a) does not apply to

mortgage foreclosures, and apparently every court that has

considered this question agrees. See United States v. Alvarado, 5

F.3d 1425, 1430 (11th Cir. 1993); Westnau Land Corp. v. U.S. Small

Business Admin., 1 F.3d 112, 115-16 (2d. Cir. 1993) (collecting

cases); United States v. Dos Cabezas Corp., 995 F.2d 1486, 1489

(9th Cir. 1993); United States v. Ward, 985 F.2d 500, 501-03 (10th

Cir. 1993); Cracco v. Cox, 66 A.D.2d 447, 414 (N.Y. 4th Dept.

1979); United States v. Warren Brown & Sons Farms, 1994 WL 654440

(E.D. Ark. Sept. 29, 1994); United States v. Succession of Sidon,

812 F.Supp. 674, 675-76 (W.D. La. 1993); United States v. LaSalle

6
National Trust, 807 F.Supp 1371, 1372-73 (N.D. Ill. 1992); United

States v. Mr. Wonderful Enterprises, 1992 WL 521532 (E.D.N.Y. Feb.

25, 1992); United States v. Freidus, 769 F.Supp. 1266, 1273-74

(S.D.N.Y. 1991); United States ex rel. Small Business

Administration v. Edwards, 765 F.Supp. 1215, 1222 (M.D. Pa. 1991);

United States v. Copper, 709 F.Supp. 905, 908 (N.D. Iowa 1988);

United States v. Matthews, 1988 WL 76567 (E.D.N.Y. 1988); Curry v.

United States, 679 F.Supp. 966, 970 (N.D. Cal. 1987).

We join the Ninth, Eleventh, Tenth, and Second Circuits in

this respect and hold that section 2415(a) does not directly apply

to foreclosures on security for the debt. It is a well-established

principle that all statutes of limitations against the United

States are to be strictly construed. Badaracco v. Commissioner,

104 S.Ct. 756, 761 (1984). The courts have all agreed that, by

characterizing the action as one for "money damages," the strict

terms of section 2415(a) distinguish between actions for recovery

on the promissory note and actions to foreclose on the security.

In short, although both an action on the promissory note and a

foreclosure under the deed of trust are founded upon contract, only

the former is strictly an action for money damages within the

meaning of section 2415(a).2 We thus disagree with the district

2
We observe that FIRREA's six-year period applicable to "any
contract claim," 12 U.S.C. § 1821(d)(14)(A)(i)(I), has no such
(or similar) "for money damages" limitation as is contained in
section 2415(a). Thus it is clear that FIRREA applies to
foreclosure actions.
This limitation in section 2415(a)'s coverage is explained,
though perhaps not justified, by ancient distinctions between the
right to collect on the debt (or for a deficiency) and the right
to foreclose on a deed of trust. As one New York appellate court
has observed, "It is a long-standing rule that the right to

7
court that section 2415(a) directly governs the mortgage's

foreclosability between the date of the FDIC's appointment as

receiver and the effective date of FIRREA.

While apparently conceding that section 2415(a) does not apply

to foreclosures, the FDIC argues that section 2415(c) represents an

affirmative congressional prohibition on limitations against the

government's rights to foreclose, thus displacing state law to the

contrary. FDIC's Brief at 14 ("[T]he inapplicability of section

2415(a) merely confirms the applicability of section 2415(c), which

places no limitations on the time for . . . foreclosure.").

Subsection (c) provides, "Nothing herein shall be deemed to limit

the time for bringing an action to establish the title to, or right

of possession of, real . . . property." The plain meaning of

foreclose a mortgage securing a debt is distinct from the right
to bring an action for money damages on the note . . . .
Congress recognized and preserved this distinction and intended
that section 2415 apply only to actions for money damages."
Cracco, 66 A.D.2d at 449. An action for the collection of a debt
is an action at law for money damages, whereas an action to
foreclose on a deed of trust is an equitable action to sell the
property, irrespective of the debt's amount. Finally, the
foreclosure remedy is in rem, not in personam, and is therefore
limited to the property itself.
Courts have specifically held that section 2415(a) does not
limit the government's power of sale. See Dos Cabezas Corp., 995
F.2d at 1490 (relying on subsection (c)); Curry v. United States
Small Business Admin., 679 F.Supp. 966, 970 (N.D. Cal. 1987)
(subsection (a) not a bar to the SBA's exercise of a power of
sale in a deed of trust).
In Texas, the right to nonjudicially foreclose a deed of
trust has been described as "a mere right to have recourse to the
property for the satisfaction of the obligor's debt." 30 Tex.
Jur. 3rd, Deeds of Trust And Mortgages, § 5 at 465. Moreover,
Texas law considers a sale under a deed of trust "equivalent to a
strict foreclosure by a court of equity." First Federal Savings
and Loan Ass'n v. Sharp, 347 S.W.2d 337, 340
(Tex.Civ.App.SQDallas 1961), aff'd, 359 S.W.2d 902 (Tex. 1962)
(citation omitted).

8
section 2415(c), however, is to clarify or confirm that subsection

(a) does not apply to actions relating to land titles. Cf. S. Rep.

No. 1328, 89th Cong., 2d Sess. 2 (1966), reprinted in 1966

U.S.C.C.A.N. 2502.3 Section 2415(c) therefore has no independent

preemptive force. Consequently, there is no statutory basis for

the proposition that there are no pre-FIRREA time limits on the

FDIC receiver's power to foreclose.

Finally, the FDIC contends that, if section 2415(a) does not

apply to foreclosures, then there can be no state limitation on the

government's right to foreclose because of the federal common law

rule that time does not run against the sovereign. Guaranty Trust

Co. of New York v. United States, 58 S.Ct. 785 (1938); United

States v. Summerlin, 60 S.Ct. 1019 (1940); see also United States

v. Palm Beach Gardens, 635 F.2d 337, 339-40 (5th Cir.) (explaining

3
This report includes the following with respect to
subsection (c):

"EXCEPTION AS TO GOVERNMENT ACTIONS AS TO TITLE TO REAL AND
PERSONAL PROPERTY

Subsection (c) makes it clear that no one can
acquire title to Government property by adverse
possession or other means. This is done by providing
that there is no time limit within which the Government
must bring actions to establish title to or right of
possession of real or personal property of the United
States. In other words, there is no statute of
limitations applying to Government actions of this
type." 1966 U.S.C.C.A.N. at 2505.

. . .

"Subsection (c) expressly provides that nothing in
the new section shall be construed to limit the time in
which the Government may bring an action to establish
the title to, or right of possession of, real or
personal property." Id. at 2510.

9
that the general rule "derives from the common law principle that

immunity from limitations periods is an essential prerogative of

sovereignty"), cert. denied, 102 S.Ct. 635 (1981). Setting aside

whether this particular rule applies in the absence of a

significant federal interest in conflict with state law, see United

States v. California, 113 S.Ct. 1784, 1791 (1993), we decline to

view the legal issue narrowly as one of limitations. We believe

the more precise issue to be whether the mortgage survives the

debt, and, in a case such as this, that question is normally

determined by state, not federal, law. See, e.g., Curry v. United

States Small Business Admin., 679 F.Supp. 966, 970-72 (N.D. Cal.

1987) (relying on the California state law doctrine that the

mortgage does survive a limitations bar on the underlying debt).

Although generally federal law governs issues involving rights

of the United States arising under nationwide federal programs, it

begs the question here to assume, as the government does, that the

FDIC acts in this case pursuant to a significant federal interest.

It is now well established that there is no general federal common

law, Erie Railroad Co. v. Tompkins, 58 S.Ct. 817, 822 (1938), and,

further, that federal common law rules should displace state laws

only in the case of a significant conflict with specific or unique

federal interests. See Boyle v. United Technologies Corp., 108

S.Ct. 2510, 2514-16 (1988). Here, the displacement of state law in

favor of federal common law presupposes the existence of a

significant federal proprietary interest in conflict with state

law. See United States v. Kimbell Foods, Inc., 99 S.Ct. 1448

(1979); Clearfield Trust Co. v. United States, 63 S.Ct. 573 (1943).

10
See also 19 Charles A. Wright et al., Federal Practice and

Procedure § 4514 (1982). Absent such an interest or some express

congressional policy to the contrary, state law governs state-law

rights held by the FDIC in its limited capacity as the receiver of

a nonfederal entity. In its supposition that federal law applies

to this case, the FDIC cites a series of cases in which the courts

applied Kimbell Foods to displace state rules in favor of federal

common law. The absence here of a significant federal interest,

however, critically distinguishes this case from those in which the

courts applied federal law to preserve the government's right to

foreclose.

For instance, in United States v. Ward, 985 F.2d 500, 503

(10th Cir. 1993), a Tenth Circuit case relied on by the FDIC here,

the United States had itself made loans secured by real estate

mortgages. The loans were made by the Farmers Home Administration

(FmHA) in accordance with federal policy under the Farm and Rural

Development Act of 1949. Accordingly, the case involved the rights

of the United States in a nationwide federal programSQthe very

reason the Court displaced state law in Kimbell Foods. It was

explicitly upon this basis that the Tenth Circuit preempted state

law:

"The basic reason why the Wards cannot prevail is that
federal law governs issues involving the rights of the
United States arising under nationwide federal programs.
Consequently, because the underlying loans were made to
the Wards by the Farmers Home Administration of the
Department of Agriculture and emanated from the Farm and
Rural Development Act of 1949, a nationwide federal
program, the government is not affected by Oklahoma's
lien expiration law." Ward, 985 F.2d at 503 (citations
omitted).

11
For this reason, the court in Ward determined, "[I]f the government

is barred from the enforcement of the mortgage, the limitation must

come from federal law." Id.

Indeed, all other circuit court decisions arguably on point

deal with loans or subsidies made or guaranteed by the federal

government under the auspices of some congressionally established,

nationwide program. In addition to Ward, see, for example, United

States v. Alvarado, 5 F.3d 1425 (11th Cir. 1993) (loan made by the

FmHA); United States v. Dos Cabezas, 995 F.2d 1486 (9th Cir. 1993)

(same); Cracco v. Cox, 66 A.D.2d 447 (4th Div. N.Y. 1979) (same);

United States v. City of Palm Beach Gardens, 635 F.2d 337 (5th

Cir.) (action to recover funds used in the construction of a

nonprofit hospital sold to a profit-making organization pursuant to

the Hill-Burton Act), cert. denied, 102 S.Ct. 635 (1981); Alger v.

United States, 252 F.2d 519 (5th Cir. 1958) (action for the

recovery of federal meat subsidies made under the Livestock

Slaughter Subsidy Program authorized under the Emergency Price

Control Act of 1942); United States v. Borin, 209 F.2d 145 (5th

Cir.) (same), cert. denied, 75 S.Ct. 33 (1954). Besides FmHA

loans, the most common fact pattern involves loans made or

guaranteed by the Small Business Administration (SBA). See United

States v. Kimbell Foods, Inc., 99 S.Ct. 1448 (1979); Westnau Land

Corp. v. United States Small Business Admin., 1 F.3d 112 (1993);

United States v. Sellers, 487 F.2d 1268 (5th Cir. 1974). In such

cases, there is likewise a valid federal interest connected to a

nationwide program. See Kimbell Foods, Inc., 99 S.Ct. 1448 (1979)

(involving a loan guaranteed by the SBA).

12
 Here, the FDIC asserted the power of sale, not in its

corporate capacity, but only in the limited capacity of receiver of

a local, nonfederal entity. The real estate lien note and the deed

of trust documented a local transaction between private parties in

Texas, and the deed of trust was secured by a lien on Texas real

property. In this context, the concerns of Kimbell Foods are not

implicated.4 See California, 113 S.Ct. at 1791 (1993) (discussing

in dicta how the application of federal law presupposes the

government acting "in its sovereign capacity"). The Supreme Court

has recently made clear that the capacity in which the FDIC acts

may have a determinative impact on whether a state or federal rule

should control. In O'Melveny & Myers v. F.D.I.C., 114 S.Ct. 2048

(1994), the FDIC, as receiver for a failed federally insured,

California-chartered savings and loan, asserted a tort claim

against former counsel for the S&L. Although both sides conceded

that state law created the right upon which the FDIC acted, the

government argued that federal law should control whether

"knowledge of corporate officers acting against the corporation's

interest will be imputed . . . to the FDIC." Id. at 2052. On that

issue, the FDIC argued for "federal pre-emption . . . over the law

4
Whereas there is no significant federal interest here, there
is a strong local interest in state regulation of land titles.
See Mason v. United States, 43 S.Ct. 200, 203-04 (1923); see
generally 14 Charles A. Wright et al., Federal Practice and
Procedure § 3652 n.4 (1985). Such strong state interests should
"be overridden by the federal courts only where clear and
substantial interests of the National Government, which cannot be
served consistently with respect for such state interests, will
suffer major damage if the state law is applied." United States
v. Yazell, 86 S.Ct. 500, 507 (1966) (refusing to displace state
law relating to family property arrangements).

13
of imputation . . . [applicable] to the FDIC suing as receiver."

Id. at 2053.

In O'Melveny, the FDIC quoted the following language of

Kimbell Foods: "[F]ederal law governs questions involving the

rights of the United States arising under nationwide federal

programs." Id. "But the FDIC is not the United States," the Court

responded, "and even if it were we would be begging the question to

assume that it was asserting its own rights rather than, as

receiver, the rights of [the S&L]." Id. In the absence of an

applicable and contrary federal rule, the Court refused to displace

state law merely because of the FDIC receiver's connection to the

suit. Before tolerating the preemption of state law, the Court

insisted that the FDIC identify a "significant conflict between

some federal policy or interest and the use of state law." Id. at

2055 (citation omitted). With particular emphasis on the FDIC's

role as receiver, the Court found a palpable lack of a "specific"

and "concrete" federal interest: "The rules of decision at issue

here do not govern the primary conduct of the United States or any

of its agents or contractors, but affect only the FDIC's rights and

liabilities, as receiver, with respect to primary conduct on the

part of private actors that has already occurred." Id.

The Court rejected the suggestion of the FDIC that there was

a federal interest in simply not depleting the deposit insurance

fund. Because "neither FIRREA nor the prior law sets forth any

anticipated level for the fund," the Court concluded that the FDIC

was effectively asserting a "federal policy that the fund should

always win." Id. The Court rejected this so-called "more money"

14
argument. Id. See also United States v. Yazell, 86 S.Ct. 500,

504-05 (1966). In this case, the FDIC has made the identical

argument: "Because the FDIC/Receiver's foreclosure of this

property reduces the monetary exposure of the federal deposit

insurance fund '[t]he FDIC's right to recovery in these instances

is determined under comprehensive federal law that preempts state

law in this field'" (quoting Gaff v. FDIC, 919 F.2d 384, 390 (6th

Cir. 1990), modified, 933 F.2d 400 (1991)).

By asserting here the same generalized federal interest in

winning, the FDIC has again failed to identify, nor can we find, a

specific, concrete federal interest within the meaning of Kimbell

Foods. As a result, state law should govern state-law rights held

by the FDIC in its capacity as receiver of a state-chartered

institution.

We note in passing a relevant lower court decision, in which

a California district court applied California law to determine

whether a mortgage can survive the extinguishing or barring of the

underlying debt. Curry v. United States Small Business Admin., 679

F.Supp. 966, 970-72 (N.D. Cal. 1987).5 In so doing, the district

5
In contrast to the case sub judice, the government in Curry
had made the loan secured by the mortgage. The court therefore
appropriately determined that federal law controlled, but chose,
in the absence of a specific federal rule, to adopt the relevant
state law under the terms of Kimbell Foods. State law was
therefore adopted as the federal rule and applied to the facts at
hand. Here, in comparison, we determine that state, not federal,
law controls and hence need not determine the propriety of
adopting the state rule. On this basis, we distinguish United
States v. Cooper, 709 F.Supp. 905 (N.D. Iowa 1988), in which the
court refused to adopt the Iowa state rule that the barring of a
debt bars the mortgage. Because the loan in Cooper was made by
the SBA under a nationwide federal program, the case fell clearly
within Kimbell Foods. Its decision not to adopt state law as the

15
court in Curry confronted a situation remarkably similar to the one

here. There, the government, through the SBA, made a loan to the

plaintiff secured by a deed of trust with a power of sale. At

issue was the validity of the attempted nonjudicial foreclosure

under the deed of trust, notwithstanding that the underlying loan

obligation was extinguished by the general six-year statute of

limitations found in section 2415(a). The court reviewed

California law to determine the effect of this limitations bar on

the enforcement of the mortgage. California, at least at the time

of the Curry decision, followed the majority rule "that a deed of

trust 'never outlaws' and that the power of sale may be exercised

even though the statute of limitations has barred any action on the

underlying debt or obligation." Id. at 971.6 For this reason, the

court held that the SBA could exercise its power of sale even

though section 2415(a) barred an action on the note.

Though in one sense, the situation in this case is identical

to Curry, in another, it is the reverse. Here, unlike Curry, there

is no dispute that the FDIC could sue on the note because section

2415(a), which applies directly to the debt only, carried the

FDIC's power to enforce the debt past FIRREA's effective date.

Thus, in this case, we are not concerned with the effect of a

relevant federal rule of decision is therefore inapposite to the
case at hand.
6
These facts were complicated by the passage of a California
statute designed to reverse the general rule that a power of sale
survives indefinitely. Id. at 971. Nevertheless, the exceptions
built into the statute were such that the law could not
invalidate a power of sale until five years after the statute's
operative date. The SBA's interests fell within this safe harbor
provision. Id. at 972.

16
barred debt on the mortgage, but instead with the effect of an

enforceable debt on the mortgage. The critical question in this

case, therefore, is the obverse of Curry's: can the power of sale

under a deed of trust be extinguished when the note secured by the

deed of trust is still enforceable? In other words, although both

parties agree that the FDIC is not barred from suing the debtor on

the note for the underlying debt, they dispute whether enforcement

of the mortgage itself is barred. To answer this question, we turn

to the law of Texas and inquire into the connection between

mortgages and the notes they secure.

It is a general and long-established principle in Texas that

a mortgage is a mere incident of the debt. In Duty v. Graham, 12

Tex. 214 (1854), the Texas Supreme Court held that, a mortgage

being merely security for the debt and not a conveyance in itself,

the debt "is the principal thing," to which the mortgage is only an

"incident." Id. at 217. See also Slaughter v. Owens, 60 Tex. 668,

672 (1884) ("The vendor's lien exists by reason of the debt alone.

So long as that continues and can be enforced the lien subsists and

can be foreclosed."); Falwell v. Hening, 78 Tex. 278, 279 (1890)

("The lien was incident to the claim for the purchase money. If

the note was not barred the lien was not"; limitations on note

suspended by absence of maker from state); Stone v. McGregor, 99

Tex. 51, 87 S.W.334, 336 (1905) (". . . the note was barred by the

statute of limitation of four years . . . nothing occurred to

suspend the statute of limitation . . . . There being no right of

recovery on the note, there can be no foreclosure of the lien . .

. ."); Brown v. Cates, 99 Tex. 133, 87 S.W. 1149, 1151 (1905) (" .

17
. . the limitation available to a purchaser of property incumbered

by a lien to secure a debt of his vendor is that which applies in

favor of the debtor against the creditor; and that, so long as the

creditor's cause of action against the debtor upon the debt is not

barred, the right to foreclose against the purchaser of the

property continues. But when the debt is barred the action to

foreclose the lien is also barred"); Jolly v. Fidelity Union Trust

Co., 118 Tex. 58, 10 S.W.2d 539, 541 (1928) ("The rule has been

long established in this state that the lien by which a debt is

secured is incident to the debt; and that a written extension of

the maturity of the debt, by the debtor, operates as an extension

of the lien also, unless the extension agreement shows

otherwise").7

7
We acknowledge that there is some historical justification
in Texas for a distinction between a judicial and a nonjudicial
foreclosure with respect to this rule. Although Texas law has
long recognized that a mortgage is merely an incident of the
debt, in 1887 the Texas Supreme Court drew a short-lived
distinction between judicial and nonjudicial foreclosures.
Fievel v. Zuber, 3 S.W. 273 (Tex. 1887). In Fievel, the court
held that a nonjudicial foreclosure under a power of sale, unlike
a judicial foreclosure, could be exercised after the statute of
limitations had barred enforcement of the underlying debt. Id.
at 274. The court reasoned that statutes of limitations do not
"destroy" the debt, but merely bar its judicial enforcement.
Whatever relevance this distinction between nonjudicial and
judicial foreclosures may have had at the time of Fievel, the law
of Texas has since been changed to conform to the larger
principle that the mortgage follows the debt. Shortly after a
statutory provision in 1905 that limited the time for exercising
a power of sale to ten years after the maturity of the debt, the
Texas legislature, in amendments some eight years later, exactly
matched the limitations period for nonjudicial (as well as
judicial) foreclosures to the four-year rule for debts. See,
e.g., Stubbs v. Lowrey's Heirs, 253 S.W.2d 312, 313
(Tex.Civ.App.SQEastland 1952, writ ref. n.r.e.) (where the debt
was barred by limitations, the foreclosure sale under a deed of
trust was "void"); Howard v. Stahl, 211 S.W. 826, 828
(Tex.Civ.App.SQAmarillo 1919, no writ) (same); Rudolph v. Hively,

18
 Consistent with this principle, Texas law matches the

limitations period of the mortgage to that of the note. Each is

four years from the maturity of the debt. Tex. Civ. Prac. & Rem

Code § 16.004(a) (debt); 16.035(a), (b), & (d).8 If the debt is

188 S.W. 721, 722-23 (Tex.Civ.App.SQAmarillo 1916, writ ref.)
(same). The relevant Texas statutes do not distinguish for
limitations purposes between judicial and nonjudicial
foreclosures. See note 8, infra.
Likewise, at least prior to the adoption of Article 9 of the
Uniform Commercial Code, the Texas law of chattel mortgages and
other personal property liens reflected the principle that the
mortgage follows the debt it secures. University Savings and
Loan Ass. v. Security Lumber Co., 423 S.W.2d 287, 292 (Tex. 1967)
("[L]iens are incidents of and inseparable from the debt.").
Indeed, the statute of limitations on chattel mortgages was
considered implicit in the four-year period for debts (found
formerly in article 5527). Alexander v. Ling-Temco-Vought, Inc.,
406 S.W.2d 919, 924-25 (Tex.Civ.App.SQTexarkana 1966, writ ref.
n.r.e.). Consequently, the "lien followed the debt, and was not
barred so long as the debt was not barred." Liquid Carbonic Co.
v. Logan, 79 S.W.2d 632, 633 (Tex.Civ.App.SQAustin 1935, no
writ). To the extent Texas' version of Article 9 of the Uniform
Commercial Code does not speak to this question, these common-law
principles still control and "supplement . . . provisions" of the
code. Tex. Bus. & Com. Code § 1.103 (1994).
8
Section 16.035 provides in relevant part:

"(a) A person must bring suit for the recovery of
real property under a lien debt or the foreclosure of a
lien debt not later than four years after the day the
cause of action accrues.

(b) A sale of real property under a power of sale
in a mortgage or deed of trust that secures a lien debt
must be made not later than four years after the day
the cause of action accrues.

(c) The running of the statute of limitations is
not suspended against a bona fide purchaser for value,
a lienholder, or a lessee who has no notice or
knowledge of the suspension of the limitations period
and who acquires an interest in the property when an
outstanding lien debt is more than four years past due,
except as provided by:

(1) Section 16.062, providing for suspension
in the event of death; or

19
barred by limitations, so is the mortgage, a mere incident of the

debt. If limitations has not run on debt, without reference to

tolling or debt extension, then limitations has not run on the

mortgage. Here, the applicable limitations period on the debt is

that fixed by federal law at six years. We conclude that, absent

special circumstances, it is not consistent with the manifest

scheme of the Texas law to void the lien when the stated

limitations years on the debt have not elapsed. To do so would be

contrary to the general rule that the mortgage follows the debt and

would pervert the purpose of the Texas law, which seeks to

harmonize the limitations period applicable to both the note and

the security. Moreover, such a result would discriminate against

the federal law by not allowing the holder of a note as to which

the applicable federal limitations years had not passed the same

privileges as the holder of a note as to which the applicable state

limitations years had not elapsed.

(2) Section 16.036, providing for recorded
extensions of lien debts.

(d) On the expiration of the four-year limitations
period, it is conclusively presumed that a lien debt
has been paid and the lien debt and a power of sale to
enforce the lien become void at that time."

Section 16.036 provides in part that "parties primarily
liable for a lien debt . . . may suspend the running of the four-
year limitations period for lien debts through a written
extension agreement" to be "signed and acknowledged as provided
by law for a deed" and recorded in the real estate records "of
the county where the real property is located."
Section 16.037 provides: "An extension agreement is void as
to a bona fide purchaser for value, a lienholder, or a lessee who
deals with real property affected by a lien debt without actual
notice of the agreement and before the agreement is acknowledged,
filed, and recorded."

20
 To be sure, Texas law strives to protect from secret tollings

or extensions the unknowing bona fide purchaser who acquires the

land when the limitations period on the debt has facially expired.

Section 16.035(c); 16.037 (see note 8, supra). However, as between

the parties, and those holding under them in subordination to the

mortgage, informal, unrecorded extensions of the debt, not meeting

the standards of section 16.036 (see note 8, supra), suffice also

to extend the lien. See, e.g., Jolly, supra at 541 (predecessor to

section 16.035(c) "not intended . . . to have application where an

unbarred lien is extended by the parties to it, and no other

persons are affected by the extension, except those holding under

voluntary conveyance from the mortgagor in subordination to the

lien"; and not intended to change "rule . . . long established . .

. that the lien by which a debt is secured is incident to the debt;

and that a written extension of the maturity date of the debt, by

the debtor, operates as an extension of lien also, unless the

extension agreement shows otherwise"); T.A. Hill State Bank of

Weimar v. Schindler, 33 S.W.2d 833, 837 (Tex. Civ. App.SQGalveston

1930, writ ref'd) (predecessor to section 16.035 did not change

prior settled law "that any renewal of the note made before it

became barred which was valid as between the parties preserved the

lien until the expiration of four years after the maturity of the

debt fixed by the renewal, except as against subsequent innocent

purchasers and lienholders"); Mercer v. Daoran Corp., 676 S.W.2d

580, 581-82 (Tex. 1984) (one who becomes junior lienholder before

senior lien debt is facially barred is not protected by section

16.035's predecessor from subsequent unrecorded extension of senior

21
debt). Similarly, as between the parties, an informal, unrecorded,

and unacknowledged written promise to pay a limitations barred debt

is held to revive both the debt and the lien securing it. Beeler

v. Harbour, 116 S.W.2d 927, 930-931 (Tex. Civ. App.SQFort Worth

1938, writ ref'd). See also Falwell.9

Here, when the FDIC was appointed receiver in June 1987, four

years had not elapsed since the note's original maturity date.

Consequently, at that time the note and lien were each fully in

force. The appointment of the FDIC as receiver brought into play

section 2415(a), the federal six-year statute of limitations. As

a result, the debt would not become barred before 1990. For

purposes of its effect on Texas limitations law as applied to the

validity of the lien, it seems to us that this would be treated at

least as favorably to the validity of the lien as if the parties

had previously, by unrecorded instrument, extended the note's

maturity, so it would not be barred before 1990. On August 9,

1989, when FIRREA came into effect, no innocent, ignorant third

party purchaser for value had (or had had) any interest in the

property. In those circumstances, and as the debt was not barred,

the FDIC receiver could then have foreclosed its lien consistent

with Texas law. FIRREA then took over, and its limitations period,

9
In Falwell, the payee filed suit in February 1885 on a March
1878 note of Abercrombie's maturing November 1, 1880, and to
foreclose the implied vendor's lien securing it; limitations did
not bar the note because Abercrombie had been out of the state
continuously since a time prior to November 1880; on November 2,
1878, Abercrombie had conveyed to Falwell the land deeded
Abercrombie by the payee in March 1878. Falwell then knew of the
payee's lien. It was held that the lien was properly foreclosed
as to Falwell. "The lien was incident to the claim for the
purchase money. If the note was not barred the lien was not."

22
which did not expire before June 1993, directly applied, unlike

that of section 2415(a), not only to claims on the note but also to

foreclosure claims (see note 2, supra).10 As the lien was

foreclosable on FIRREA's effective date, application of FIRREA

would not revive a void or barred lien. When Davidson, the only

bona fide purchaser involved, first acquired an interest in the

property in March 1990, limitations concerning the lien was

governed by FIRREA, and had not expired.

Consistent with the general principle in Texas that a mortgage

survives so long as the debt, provided the rights of innocent,

ignorant third-party purchasers for value are not prejudiced, the

FDIC in this case was not barred from exercising the power of sale

contained in the deed of trust on or before the effective date of

FIRREA. That being the case, the foreclosure was timely under the

limitations provisions of FIRREA, found in 12 U.S.C. §

1814(d)(14)(A)(i).

Conclusion

For the foregoing reasons, the judgment of the district court

is

10
We recognize that this is a nonjudicial foreclosure, but
nothing in the Texas statutes treats such a foreclosure
differently for limitations purposes from a judicial foreclosure.
See note 8, supra. We are aware of no Texas authority holding
that a nonjudicial foreclosure is limitations barred where
neither the debt nor a judicial foreclosure action is so barred.
Moreover, Texas law considers a nonjudicial sale under a deed of
trust "equivalent to a strict foreclosure by a court of equity."
First Federal Savings and Loan Ass'n v. Sharp, 347 S.W.2d 337,
340 (Tex. Civ. App.SQDallas 1961), aff'd 359 S.W.2d 902 (Tex.
1961). Of course, we do not here deal with a situation in which
it is contended that the express terms of the instrument were
transgressed by the nonjudicial sale. We are concerned only with
the effect of the general limitations statutes.

23
 AFFIRMED.

24