IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

No. 16-10604 FILED March 29, 2017 Lyle W. Cayce OCWEN LOAN SERVICING, L.L.C., Clerk

Plaintiff - Appellee v. ROBERT M. BERRY,

Defendant - Appellant

Appeal from the United States District Court for the Northern District of Texas

Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges. KING, Circuit Judge: This case concerns a dispute between a borrower and lender over a home equity loan. The lender filed this lawsuit seeking a judgment allowing it to foreclose, and the borrower asserted affirmative defenses and a counterclaim alleging numerous violations of the Texas Constitution’s home equity loan provisions. The district court granted summary judgment for the lender, finding, inter alia, that the borrower’s affirmative defenses and counterclaim alleging violations of the Texas Constitution’s home equity loan provisions were barred by a four-year statute of limitations. Finding that the application of a four-year statute of limitations was in error, we VACATE and REMAND. Case: 16-10604 Document: 00513931083 Page: 2 Date Filed: 03/29/2017

No. 16-10604 I. FACTUAL AND PROCEDURAL BACKGROUND In 2007, Defendant–Appellant Robert Berry took out a loan from Overland Mortgage, L.P. that was secured by a lien on his home. Plaintiff– Appellee Ocwen Loan Servicing, L.L.C. eventually acquired Overland’s interest in the loan. In 2010, a Notice of Default and Intent to Accelerate was sent to Berry following missed payments. In June 2013, a Notice of Acceleration was sent to Berry after he failed to cure the default. In September 2014, Ocwen filed its original complaint in this action, seeking a judgment allowing it to foreclose on the property. In November 2014, Berry filed his answer, which included as an affirmative defense the allegation that Ocwen’s security interest is unenforceable because there were multiple violations of Article 16, section 50(a)(6) of the Texas Constitution. In May 2015, Ocwen filed its first amended complaint (FAC), adding, inter alia, a cause of action for equitable subrogation and asserting that Berry’s affirmative defense alleging violations of the Texas Constitution was barred by the statute of limitations. Berry filed an answer and counterclaim to the FAC the next month, asserting once again the affirmative defense that Ocwen’s security interest is unenforceable due to violations of section 50(a)(6) of the Texas Constitution and adding a counterclaim that “[t]he extension of credit was made in violation of the Texas Constitution for the reasons reflected in Affirmative Defenses and the alleged lien is invalid on its face.” In its answer to the counterclaim, Ocwen asserted, inter alia, that Berry’s allegations were “barred, in whole or in part, by the applicable statute of limitations. In particular, his Counterclaim was filed more than four years after the closing of the subject loan and his Counterclaim is subject to a four-year limitations period.” Berry then filed a first amended answer and counterclaim, adding more detail and allegations to

2 Case: 16-10604 Document: 00513931083 Page: 3 Date Filed: 03/29/2017

No. 16-10604 the affirmative defense and slightly changing the wording of the counterclaim. 1 In its amended answer to the countercl