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Ross, S. The nature of the injury alleged by the Santiagos is that they did not receive a copy of the Affidavit as required by subsection v of Article XVI, section 50 a 6 Q of the Texas Constitution, and therefore were unaware that they could be liable personally on the entire loan in the event of any fraud on their part. They allege that a copy of the Affidavit was not provided to them, and instead was filed of record bearing forgeries of their signatures. They argue that no diligence was required of them to discover their injury because they had no reason or obligation to search the deed records after their loan was closed.

There is no dispute that the allegedly forged Affidavit was a matter of public record upon its filing on May 25, , or that the alleged constitutional violation was apparent from a review of those records. Luis Santiago discovered the alleged violation when he reviewed the records in In some circumstances, a party may have constructive notice of matters filed in the public record.

Neel, S. In HECI and subsequent cases involving owners of royalty interests, the courts also noted the royalty owners' obligation to exercise due diligence to protect their interests. Horwood, 58 S. The Santiagos rely on several cases rejecting application of constructive notice in cases of fraud. In Ojeda de Toca v. Wise, S. In Lightfoot v. Weissgarber, S. The discovery rule applies to defer accrual of a cause of action in a second type of case, if the alleged wrongful act and resulting injury were inherently undiscoverable at the time they occurred but may be objectively verified.

In Kramer v. June 25, per curiam , 9 the court determined the discovery rule did not apply to Kramer's claim that her signature was forged on a deed of trust and other documents relating to a home equity line of credit extended to her then-spouse. Among other claims, Kramer alleged the lender violated two constitutional provisions under Article XVI section 50 a 6 of the Texas Constitution.

First, she alleged that because her signatures on the loan documents were forged, the lien was not created with her consent, in violation of section 50 a 6 Q xi. Second, she alleged that the loan was not closed at the office of the lender, a title company, or an attorney, in violation of section 50 a 6 N. In response to the bank's motion for summary judgment, Kramer presented expert testimony that her signature was forged.

The record reflected that the loan was closed in ; Kramer discovered the existence of the loan and the lien in when she was considering a sale of the home; and she filed suit in The trial court granted summary judgment on the basis of limitations, relying on the residual statute of limitations and declining to apply the discovery rule. Relying on Priester, the court of appeals affirmed the trial court's judgment. The court also noted that Kramer did discover the injury prior to the expiration of the statute of limitations.

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Atlantic Richfield Co. This question, however, arises in the application of the discovery rule to determine when a cause of action accrued, not the initial determination whether the discovery rule applies to the category of injury alleged. As we have noted, the question whether an injury is inherently undiscoverable is made on a categorical basis by the court.

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Shell Oil Co. The Affidavit was a matter of public record. Here, as in Kramer, due diligence could have uncovered the violation of which the Santiagos complain. Luis Santiago did discover it when he reviewed the public records relating to the loan. As the Santiagos themselves point out, the Affidavit was specifically referenced in the security instrument and other documents they signed at closing. Realtors, Inc.

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Their injury was discoverable. Although the Santiagos assert there was fraud in connection with the alleged forgery, there was no evidence of concealment of the allegedly forged document, which was undisputedly a matter of public record immediately after the closing.


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If a counterclaim arises out of the same transaction or occurrence that is the basis of an action, a party to the action may file the counterclaim or cross claim even though as a separate action it would be barred by limitations on the date the party's answer is required. Here, Luis Santiago was the original plaintiff. On May 16, , he filed his original petition, asserting claims against appellees for fraud by nondisclosure arising from the constitutional violations he alleged in the home equity loan ; breach of contract arising from the May 14, , home equity loan; and to quiet title.

On October 11, , defendants filed their original counterclaim against Luis Santiago and original third-party petition against Linda A.

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Santiago, alleging claims for breach of contract, suit on a note, and equitable subrogation. In the Santiagos' first amended original petition and response to defendants' counterclaim, Linda Santiago is identified as a plaintiff, and the pleading includes an allegation relying on section The Santiagos argue that their claims are timely asserted under section Section We note that as to appellee Novastar, there is no issue regarding section Linda Santiago responded by realigning herself as plaintiff and filing, with Luis Santiago, a First Amended Original Petition and Response to Defendants' Counterclaim, in which both plaintiffs alleged not only the three causes of action asserted in Luis Santiago's original petition, but also counterclaims for the same constitutional violations that were the factual basis for Luis Santiago's original claims.

Under our analysis of the statute of limitations, Linda Santiago's claims against appellees were stale at the time she asserted them, as were Luis Santiago's. The Santiagos therefore assert that they may rely on section They argue that Linda's claims are revived because she did not assert them until she was made a third-party defendant, and only then asserted them as counterclaims.

Neither the Santiagos nor appellees have cited authority considering whether a third-party defendant who realigns herself as a plaintiff and joins in asserting the original plaintiff's claims may nonetheless rely on section We conclude she cannot. In Hobbs Trailers v. Arnett Grain Co. In Hobbs Trailers, Arnett Grain was the original plaintiff; Hobbs Trailers was the original defendant; and the claim at issue was for setoff of amounts a jury found Arnett Grain had been damaged by defective refrigeration equipment installed by Hobbs on trailers leased by Arnett.

At the time Arnett Grain sued Hobbs, Arnett Grain's breach of warranty claims for the defective refrigeration equipment were already barred by limitations. Arnett Grain then argued that because it was now cast as defendant, it could assert its offset claim defensively as a counterclaim revived by the predecessor of section Where Arnett Grain was not the original defendant, it could not rely on section We considered the application of section Baldwin, S.

ECC was the plaintiff and Baldwin was the defendant in a suit for failure to disclose a deed restriction in a sale of real property. Baldwin the seller of the property asserted a third-party claim against Duvall—Giles Co. In response ECC filed a counterclaim against Duvall—Giles, asserting claims similar to those it had already asserted against Baldwin, including fraud and negligent misrepresentation. Nevertheless, we concluded that section We affirmed the trial court's denial of Duvall—Giles's motion to strike ECC's counterclaim as barred by limitations.

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Neither Hobbs Trailers nor Baldwin presents precisely the same series of counter- and cross claims as the parties asserted here. In Hobbs Trailers, the only plaintiff was recast as the defendant, and the only defendant was recast as the plaintiff. Hobbs Trailers, S. Here, a third-party defendant was realigned as an additional plaintiff. And as the court in Hobbs Trailers noted, the claim in question was not originally asserted as a cross- or counterclaim, while Linda Santiago's claims were asserted in response to appellees' third-party action against her. In Baldwin, there was no realignment of parties.

A third-party defendant's claim against the plaintiff revived the plaintiff's claims against the third-party defendant. See Baldwin, S.

Despite the distinctions we have noted, we conclude that the rationale of Hobbs Trailers offers the most guidance here. Allowing revival of the Santiagos' stale claims here would impose this choice on appellees. And the purpose of section The Santiagos attempt to distinguish Hobbs Trailers by arguing that their constitutional claims are defensive only.

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The federal courts considering this argument after Priester have rejected it. Moran, F. Deutsche Bank Trust Co. Nat'l Ass'n, Civil Action No. July 29, mem.

Mark A. Emmert

Bank Nat'l Ass'n, No. May 29, , aff'd, Fed. App'x 5th Cir. We conclude that neither the discovery rule nor section We overrule the Santiagos' first and second issues. In their third issue, the Santiagos rely on their constitutional claims to argue that summary judgment was not proper on appellees' counterclaims for breach of contract and suit on a note.

They contend that because they raised a fact issue regarding whether the loan was void as a result of constitutional violations, summary judgment for appellees was not warranted. You're Reading a Free Preview Pages 7 to 12 are not shown in this preview. Buy the Full Version. You're Reading a Free Preview Pages 16 to 19 are not shown in this preview.

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  7. You're Reading a Free Preview Pages 55 to 56 are not shown in this preview. You're Reading a Free Preview Pages 60 to 62 are not shown in this preview. See id. The court disagrees. Although Clemons could 2 have provided additional details - which Clemons sets forth in his 3 Opposition and exhibits - his FAC still meets the minimal pleading 4 standards of Federal Rule of Civil Procedure 8 a. Clemons thereby adequately 9 alleges potentially discriminatory acts by moving Defendants. Clemons further alleges that he and his realtor then 14 "came into contact" with the property's selling agents.

    Accordingly, while Clemons does not expressly 18 plead moving Defendants' knowledge of his race, it is reasonable to 19 infer that they may have learned of his race from the other 20 Defendants involved in the managing and sale of the property. Here, Defendants 24 claim that Clemons never offered to meet the seller's term that the 25 seller not be required to make any repairs to the property.

    In doing so, the 5 majority found that it was an "undisputed fact. The dissent, to the contrary, would 10 have found that the alleged refusal of the seller to engage in any 11 carryback was "sufficiently disputed," and therefore reversed the 12 grant of summary judgment. Such a finding, however, 25 would be inappropriate here at the motion to dismiss stage, where a 26 reasonable inference from Clemons' FAC is that Defendants' alleged 27 requirement for a qualifying purchase was pretextual.


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    7. The timing and size of these reductions therefore 4 call into question Defendants' purported justification that the 5 seller was in fact entirely unwilling to make repairs - indeed, so 6 much so, that the seller was willing to risk and eventually accept 7 tens of thousands of dollars less for the property. Of course, 8 once the facts are in, it may become clear that the alleged 9 requirement of "no seller repairs" was a genuine term of purchase, 10 and that Clemons was therefore not a qualifying purchaser.

      But the 11 court cannot resolve this potential factual dispute now, when it 12 must still take as true all of Clemons' allegations and the 13 reasonable inferences therefrom. Fact discovery then 19 closed on February 1, The court finds good cause to grant 20 the Motion. See Fed.