Into the 1998 , the new Texas Constitution was amended to allow people so you’re able to voluntarily encumber the homesteads having liens in exchange for expansion off borrowing, i

Wilfredo RIVERA and you will Ines Del C. Rivera , Appellants v. Countrywide Home loans, INC. , Landsafe Appraisal Qualities, Inc. , and you may Shirley Burchett , Appellees .

Kirsten Yards. Castaneda , James M. Wortman , Robert T. Mowrey , Wear C. Clayton , Locke Lord Bissell & Liddell LLP , Dallas, Jennifer Pettit , Gay, McCall, Isaacks, Gordon, Can get & Roberts, P.C. , Plano, to have appellees .

Wilfredo and you will Ines Del C. , Landsafe Appraisal Functions, Inc. , and you will Shirley P. Burchett . In the nine points, new Riveras grumble the fresh new demo court erred in giving summation view toward limitations, granting no proof movements to own sumages, granting Burchett summation judgment towards the Riveras’ claim away from fraudulent misrepresentation, and awarding attorney’s charge to Burchett. We affirm in part and you will reverse and you may promote simply.

elizabeth., “domestic equity loan.” TEX. CONST. ways. XVI, fifty (a) (6) (A) – (Q) . ” TEX. CONST. art. XVI, fifty (a) (6) (B) .

The mortgage was to end up being protected by the homestead. Countrywide called a part, Landsafe, to find an appraisal of the property. Landsafe therefore questioned Burchett perform some appraisal. Burchett appraised the latest fair market price of the property at $350,000 by the brand new closure go out. Countrywide loaned the Riveras $280,000, eighty percent of your own $350,000 fair market value assessment. In the closing, the new Riveras obtained a duplicate regarding Burchett’s appraisal. These were as well as provided and you may signed a keen “Receipt concerning Fair Market price of Homestead Property” stating the latest fair market price of the house as of the brand new closing time was $350,000. You to receipt, together with finalized by Nationwide, says the lender “has no knowledge otherwise cause to think your fair sector property value brand new Homestead Assets stated in so it authored receipt was incorrect,” and the lender’s receipt of your $350,000 fair market value of the property by the fresh closing big date for each the new appraisal assessment. Within the loan records during the closure was a review appraisal gotten because of the Countrywide and you can Landsafe prepared by Jeff McGregor, Jr. That it appraisal indicated the brand new $350,000 reasonable market price because of the Burchett checked exaggerated and also the reasonable market price of the property is actually ranging from $261,040 and $293,580. A good “Household Guarantee Notice Tx Home Security Safety Software (First Lien) ” was also carried out contemporaneously to the house equity financing.

Brand new Riveras decrease behind in their loan repayments, as well as the property was booked for foreclosure by the trustee ‘s selling during the , when you’re Paint Rock loans talking to neighbor John “Patrick” Bain, Wilfredo Rivera learned Bain is an appraiser regarding home loan business. Bain reviewed this new Riveras’ financing documents and lead McGregor’s review appraisal so you can Wilfredo’s notice.

Within the 2001 , the newest Riveras expected that loan away from Countrywide

In their fresh petition, the Riveras assert common law reasons for step against Countrywide, Landsafe, and you can Burchett getting carelessness, con, and you may conspiracy, seeking to injuries to own intellectual anguish and you can up front will cost you. step 1 At exactly the same time, the latest Riveras claim Nationwide broken post XVI, section fifty (a) (6) (B) of the Colorado Composition of the lending more eighty percent regarding the fresh reasonable market price of homestead possessions. 2 During the time of this new Riveras’ mortgage closing, the newest forfeiture supply of the property security constitutional provision stated the brand new lender otherwise people proprietor of one’s notice getting a house guarantee mortgage

will forfeit the prominent and you can attention of your extension out of credit in the event the bank or owner fails to comply with this new lender’s otherwise holder’s obligations beneath the expansion out of credit inside a good time adopting the lender or owner is informed from the borrower of the lender’s incapacity so you can follow.