This is a crosspost from 600Hemphill, which follows business litigation in the Texas Supreme Court; the court of appeals opinion under review came from the Fifth Court.

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A per curiam opinion, based on the Court’s recent opinion in Federal Home Loan Mortgage Co. v. Zepeda, 601 S.W.3d 763 (Tex. 2020), reminded about a lender’s equitable-subordination rights:

“[E]quitable-subrogation rights become fixed at the time the proceeds from a later loan are used to discharge an earlier lien. A lender’s negligence in preserving its rights under its own lien thus does not deprive the lender of its rights in equity to assert an earlier lien that was discharged using proceeds from the later loan. Although we considered the lender’s negligence in Sims, that analysis is limited to the lien-priority context.

Applying Zepeda to this case, the court of appeals erred in concluding that PNC’s failure to timely foreclose under the deed of trust bars its subrogation rights. The availability of better credit terms and interest rates can make refinancing an attractive financial tool for borrowers. Subrogation operates as a hedge against the risk of refinancing the outstanding amount of an existing loan, opening this credit market to borrowers. Subrogation permits a lender to assert rights under a lien its loan has satisfied when the lender’s own lien is infirm.” PNC Mortgage v. Howard, No. No. 19-0842 (Jan. 29, 2021).

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