      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-15-00329-CV



                    Gregory G. Graze and Cynthia A. Criddle, Appellants

                                                  v.

                              Nationstar Mortgage, LLC, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
     NO. D-1-GN-14-005248, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellants Gregory Graze and Cynthia Criddle sued Nationstar Mortgage, LLC

(“Nationstar”), seeking a declaratory judgment that the terms of their modified home-equity loans

violate article XVI, section 50(a)(6)(L) of the Texas Constitution and therefore render the underlying

liens against their respective homesteads invalid. The trial court granted Nationstar’s motion for

summary judgment, in which it had argued that the loan modifications were not subject to the

provisions of section 50(a)(6). In two issues, Graze and Criddle assert that the trial court erred in

granting summary judgment for Nationstar because, in their view, section 50(a)(6) does apply to

their modified loan agreements and the loan modifications violated that section by providing for

a schedule of payments that are not substantially equal and include a number of interest-only

payments. Graze and Criddle also contend that the trial court erred in concluding that Nationstar’s

written notice of the modifications cured any noncompliance. We will affirm.
                                         BACKGROUND

               The parties do not dispute the facts material to this appeal. Graze and Criddle

each obtained home-equity loans from Nationstar that were secured by liens on their respective

homesteads. The loans had 30-year terms with payment schedules of equal monthly installments.

Graze’s loan had an initial fixed interest rate of 6.5 percent and monthly principal and interest

payments of $1,896.21. Criddle’s loan had an initial fixed interest rate of 9.19 percent and monthly

principal and interest payments of $824.88. Both Graze and Criddle subsequently defaulted on

their loans and entered into Loan Modification Agreements with Nationstar. The modification

agreements recapitalized past-due interest and escrow advances and established a two-year period

of interest-only payments at a lowered interest rate of 2 percent, during which Graze’s monthly

payments were reduced to $493.27 and Criddle’s to $177.42. Following the two-year interest-only

period, Graze’s and Criddle’s interest rates returned to their respective pre-modification levels and

their monthly payments returned to being fully amortized principal and interest payments of

$2,159.71 and $910.43, respectively. The slight increase in principal and interest payments under

both modified agreements reflected the recapitalization of arrearages and retention of the original

maturity dates. Both Graze and Criddle defaulted on their modified loans when the interest-only

periods ended. Following their defaults, Graze and Criddle each claimed that the terms of their loan

modifications violated the Texas Constitution.

               Graze and Criddle brought a putative class action lawsuit against Nationstar seeking

a declaration that the terms of their modified loans violated article XVI, section 50(a)(6)(L) of

the Texas Constitution, rendering the underlying liens against their homesteads invalid. See Tex.



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Const. art. XVI, § 50(a)(6)(L). Nationstar moved for summary judgment on the ground that the

modified loans were not subject to the provisions of section 50(a)(6)(L). The trial court granted

Nationstar’s motion and rendered a final take-nothing judgment in its favor. Graze and Criddle

then perfected this appeal.


                                             DISCUSSION

               In their first issue, Graze and Criddle assert that the trial court erred in granting

summary judgment in Nationstar’s favor because the loan modifications did not comply with the

requirements of article XVI, section 50(a)(6)(L). We review the granting of a motion for summary

judgment de novo. Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012).1


Constitutional Violations

               Graze and Criddle contend that the loan modifications were invalid because they

violated article XVI, section 50(a)(6)(L)(i) of the Texas Constitution by allowing for a schedule of

payments that were not substantially equal and included a number of interest-only payments. Section

50(a)(6)(L)(i) provides, in relevant part:


       The homestead of a family . . . is . . . protected from forced sale, for the payment of
       all debts except for . . . an extension of credit . . . scheduled to be repaid in
       substantially equal successive periodic installments, . . . each of which equals or
       exceeds the amount of accrued interest as of the date of the scheduled installment.


       1
         The standards for reviewing a summary judgment are well-established and undisputed on
appeal. See, e.g., City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); see also Tex. R. Civ.
P. 166a(c); Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007); Fort Worth
Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 600 (Tex. 2004). Accordingly, we need not repeat them here.

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Tex. Const. art. XVI, § 50(a)(6)(L)(i). Graze and Criddle argue that Nationstar violated this provision

by decreasing their obligations during the interest-only period and then subsequently increasing their

obligations following the resumption of fully re-amortized principal and interest payments. Graze

and Criddle’s argument assumes that the provisions of section 50(a)(6) apply to their modified loans.

The Texas Supreme Court has recently held, however, that section 50, which applies to new home-

equity loans, does not apply to restructured home-equity loans. See Sims v. Carrington Mortg. Servs.

L.L.C., 440 S.W.3d 10 (Tex. 2014). Specifically, the court stated that “as long as the original note

is not satisfied and replaced, and there is no additional extension of credit, as we define it, the

restructuring is valid and need not meet the constitutional requirements for a new loan.” Id. at 11-12.

               In Sims, the court held that the applicability of section 50(a)(6) hinged not on whether

the transaction was characterized as a modification or a refinance, but on whether it constituted a

new “extension of credit.” Id. at 15. We are unpersuaded by Graze and Criddle’s attempt to draw

a distinction between constitutionally impermissible “modifications,” which they allege alter the

original terms of a loan and, as a consequence, are subject to article XVI, section 50(a)(6), and

permissible “restructurings” or “capitalizations,” which do not. In circumscribing Sims’s holding

to its specific facts, Graze and Criddle read the decision too narrowly. Indeed, the court expressly

noted that the restructuring of a home-equity loan may involve not only the “capitalization of

past-due amounts,” but also “a lowering of the interest rate” or alterations to the “amount of

installment payments.” Id. at 17. The required payment schedule under a home-equity loan “is

not one that, when initially set, can never be altered.” Id. at 16. If Graze’s and Criddle’s loan

modifications do not meet the court’s definition of a new “extension of credit,” they are not subject

to the requirements of article XVI, section 50(a)(6).

                                                  4
               The supreme court held that a restructured loan does not constitute a new extension

of credit when (1) the original note is not satisfied or replaced; (2) no new funds are advanced; and

(3) the terms of the restructured loan do not impose any additional obligations. Id. at 17. “The test

should be whether the secured obligations are those incurred under the terms of the original loan.”

Id. at 16. In that instance, there is no additional extension of credit and the modified loan “need not

meet the constitutional requirements for a new loan” under section 50(a)(6). Id. at 11-12.

               Graze’s and Criddle’s Loan Modification Agreements did not operate to satisfy or

replace their original notes. Each agreement expressly recites that it merely “amended the Note and

the Security Instrument.” All provisions of the original notes were to “remain in full force and

effect.” The agreements provide that nothing in either agreement is to be understood or construed

as a “satisfaction or release in whole or in part” of the notes.

               The restructuring of Graze’s and Criddle’s loans also did not amount to an

advancement of new funds. The supreme court in Sims expressly rejected the borrowers’ contention

that the recapitalization of past-due amounts constituted an advancement by the lender of additional

funds. Rather, the court characterized the recapitalization as a “mechanism for deferring payment

of obligations already owed in a way that allows the borrower to retain his home.” Id. at 16.

               Finally, Graze’s and Criddle’s loan modifications did not increase the obligations

created by their original notes. The court in Sims exemplified such an increase with the analogy of

making a homestead lien security “for another indebtedness, such as the borrower’s consumer or

credit card debt.” Id. The modifications at issue in this case did not expand the scope or amount of

the debt secured by the original lien, impose additional personal liability on Graze or Criddle, or



                                                   5
require additional security beyond the existing liens. The Loan Modification Agreements provide

that they do not “in any way . . . affect any of [Nationstar’s] rights under . . . the note.” Graze’s and

Criddle’s secured obligations are the same as those incurred under their original loans.

                Graze’s and Criddle’s modified loans do not constitute a new extension of credit

under the three elements of the Sims test. Consequently, the constitutional requirements of section

50(a)(6) for new home-equity loans do not apply. The trial court did not err in granting Nationstar’s

motion for summary judgment on the ground that the modified loans were not subject to the

provisions of section 50(a)(6)(L) of the Texas Constitution. Accordingly, we overrule Graze and

Criddle’s first issue.


Cure by Notice

                In their second issue, Graze and Criddle argue that Nationstar failed to cure the

alleged non-compliance with the requirements of section 50(a)(6). Having concluded that the loan

modifications are not subject to section 50(a)(6)’s requirements, we need not address this issue.

See Tex. R. App. P. 47.1.


                                           CONCLUSION

                Because the constitutional requirements for a new home-equity loan contained in

article XVI, section 50(a)(6) of the Texas Constitution do not apply to Graze’s and Criddle’s

restructured loans, the trial court did not err in granting summary judgment in favor of Nationstar.

We affirm the trial court’s judgment.




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                                           __________________________________________

                                           Scott K. Field, Justice

Before Chief Justice Rose, Justices Pemberton and Field

Affirmed

Filed: October 21, 2015




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