Tag: appeals

Steinberg Argues Before Fifth Circuit

On December 3, 2012, Alexis F. Steinberg argued before the United States Court of Appeals for the Fifth Circuit in New Orleans, Louisiana. She presented the crucial question of interpretation regarding the homestead provisions in the Texas Constitution, Article 16, Section 50.

The essential issue under discussion was whether a lien against a homestead made in violation of the Texas Constitution is void (legally unenforceable) or voidable (able to become void but not necessarily so). Steinberg argued that the lien against the Appellants’ property was not voidable, but rather void from the start (“void ab initio“).

This “void not voidable” issue was first raised in relation to Mosser Law’s clients in the District Court, where James C. Mosser, who tried this case in 2011, uncovered and explored the nuances of the homestead provisions in his pleadings and motions. After appealing the Court’s judgment, Mosser mentored and advised Steinberg as she prepared to bring her oral argument before the Fifth Circuit.

Mosser and Steinberg are aware that this issue could become persuasive for Texas courts and Texas citizens with void property liens. As Steinberg wrote in Mosser Law’s Brief for Appellants:

In the recent case Smith v. JPMorgan Chase Bank, the “court engaged in a detailed analysis of the plain language of the Texas Constitution; the nature of liens which are void from inception instead of merely ‘voidable’; and the Texas Constitution’s requirement of homeowner’s demand and lender’s opportunity to cure before a forfeiture. The Smith analysis should be applied here. The Priesters’ lien was void ab initio, not voidable.”

Because the lien was constitutionally void, the District Court should not have dismissed the case. This void versus voidable issue is material to Texas homeowners and to the legal interpretation of the state’s Constitution.  If the liens are considered voidable, a four-year statute of limitations applies to a homeowner’s claims.  However, if the liens are properly interpreted as void, a homeowner may bring a claim against a lender whenever the homeowner realizes the liens on his or her property violated the Texas Constitution.

Drawing on the plain-language interpretation of the Texas Constitution and pertinent case law, Steinberg presented her argument on this matter cogently and eloquently.

If you have Windows Media Player, you can listen to Steinberg’s argument here or by searching the Fifth’s Circuit’s Oral Argument Recordings Page for “Alexis Steinberg.”

Do you have an appeal? Find out by contacting Mosser Law.

Vindicating the Rights of Texas Homeowners

The Texas Constitution has some very strict language about protections for homesteads.  Unfortunately, many Texans don’t know about those safeguards, and their homes are foreclosed upon in violation of the Texas Constitution.  Mosser Law is actively working on behalf of homeowners.  With some success in the past, we hope to help more Texans in the future.

This Report and Recommendation from the US Magistrate Judge is the basis of a pending appeal before the 5th Circuit.  In that case two homeowners, unaware of the requirements of the Texas Constitution, were misled by the lender and title company–among others.  The loan was closed improperly, in the homeowners’ living room, without constitutionally mandated notice.  Upon informing the lender of the violations, the lender failed to reform the loan in accordance with the Texas Constitution.  After the appropriate time period had elapsed, the homeowner then filed a declaratory judgment for to have the lien declared void in accordance with the Texas Constitution.  The district court in that case decided that the homeowners had waited too long to pursue their claims.  Although the Texas Constitution has no language regarding a statute of limitations, the district court applied a “residual” statute of limitation of four years.  The homeowners, with the help of Mosser Law, are appealing.  We point out that the language of the Texas Constitution indicates that a lien created in violation of that document is void, and that there is no limit on your ability to have a court adjudicate the void nature of that lien.

Here you can find our clients’ opening brief, the Defendants’ Response, and our Reply.

If you are interested in reading about another of Mosser Law’s cases under the Texas Constitution relating to voiding a homestead lien because of constitutional violations, you should read about the Rays.  The lien on their homestead was declared unconstitutional because of fraud by the bank.  They also won a damage award, and an award of attorneys’ fees with the help of Mosser Law.

New Appellate Admissions

As of this summer Alexis Steinberg  and Nicholas Mosser are admitted to practice before the 5th Circuit Court of Appeals.

Ms. Steinberg’s appellate practice has previously included appearing before the Texas Supreme Court, and the needs of her clients now demand she be prepared to travel to New Orleans.  Ms. Steinberg drafted the briefs in Mosser Law’s case on homestead liens created in violation of the Texas Constitution, which is currently pending before the 5th Circuit.