For the 1998 , the newest Colorado Composition was amended to let homeowners to help you voluntarily encumber their homesteads having liens in return for extension from borrowing, we

Wilfredo RIVERA and you will Ines Del C. Rivera , Appellants v. Countrywide Lenders, INC. , Landsafe Assessment Features, Inc. , and you can Shirley Burchett , Appellees .

Kirsten Yards. Castaneda , James Meters. Wortman , Robert T. Mowrey , Don C. Clayton , Locke Lord Bissell & Liddell LLP , Dallas, Jennifer Pettit , Gay, McCall, Isaacks, Gordon, Could possibly get & Roberts, P.C. , Plano, to possess appellees .

Wilfredo and you may Ines Del C. , Landsafe Appraisal Characteristics, Inc. , and Shirley P. Burchett . Inside the nine points, the latest Riveras whine this new demo legal erred within the granting conclusion judgment towards constraints, granting zero evidence moves to possess sumages, giving Burchett realization wisdom with the Riveras’ allege from fake misrepresentation, and you can awarding attorney’s charges in order to Burchett. We affirm partly and you can opposite and provide in part.

e., “house guarantee loan.” TEX. CONST. art. XVI, fifty (a) (6) (A) – (Q) . ” TEX. CONST. artwork. XVI, 50 (a) (6) (B) .

The mortgage would be to end up being safeguarded by the the homestead. Nationwide called a part, Landsafe, to obtain an appraisal of the home. Landsafe consequently expected Burchett perform some assessment. Burchett appraised the fresh new reasonable market value of the house at $350,000 since the newest closing date. Nationwide loaned this new Riveras $280,000, eighty percent of your $350,000 fair market price appraisal. During the closure, the fresh new Riveras gotten a duplicate regarding Burchett’s appraisal. They certainly were in addition to offered and you will closed an “Receipt on Fair Market value regarding Homestead Property” saying the new fair market price of the home at the time of this new closure big date is actually $350,000. That bill, together with finalized by Countrywide, says the lending company “does not have any education otherwise reason to believe your fair field property value the new Homestead Possessions manufactured in so it written receipt are incorrect,” and lender’s acknowledgment of one’s $350,000 fair market price of the home at the time of this new closing go out for every single the assessment analysis. Included in the mortgage data files from the closing was a review assessment obtained of the Nationwide and Landsafe made by Jeff McGregor, Jr. So it appraisal conveyed new $350,000 reasonable market price by the Burchett looked exaggerated together with reasonable market value of the home is between $261,040 and you may $293,580. An excellent “Family Equity Mention Texas Family Equity Safeguards Appliance (Very first Lien) ” has also been performed contemporaneously toward home security loan.

The brand new Riveras decrease behind in their financing costs, together with assets are arranged for foreclosures of the trustee ‘s the reason deals from inside the , while you are talking to neighbors John “Patrick” Bain, Wilfredo Rivera discovered Bain try an appraiser regarding mortgage community. Bain analyzed the Riveras’ mortgage records and you may delivered McGregor’s feedback assessment so you’re able to Wilfredo’s notice.

For the 2001 , the new Riveras questioned that loan off Nationwide

Within their new petition, the brand new Riveras insist common law factors that cause action facing Countrywide, Landsafe, and you can Burchett having neglect, con, and you may conspiracy, seeking to injuries getting rational pain and with your own money will cost you. step 1 In addition, the fresh new Riveras claim Nationwide installment loans online Louisiane violated post XVI, point 50 (a) (6) (B) of one’s Texas Composition of the credit more than eighty % away from the brand new fair market price of your homestead property. 2 At the time of brand new Riveras’ loan closing, this new forfeiture provision of the property equity constitutional supply mentioned the latest financial otherwise any proprietor of your own note to possess a home collateral mortgage

should forfeit all principal and you may focus of your own extension regarding credit whether your bank otherwise manager does not comply with the lender’s otherwise holder’s financial obligation in extension away from borrowing within a fair big date adopting the lender otherwise proprietor is actually notified of the borrower of your lender’s inability to comply.