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Texas Federal Court in Walker Deals Another Blow to Consumer Plaintiffs

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By Joshua A. Huber

A.   Introduction

In 1997, the Texas Constitution was amended to allow home equity loans.[i] The purpose of the amendment was “to expand the types of liens for loans that a lender, with the homeowner’s consent, could place against the homestead.”[ii]Article XVI, section 50(a)(6), of the Texas Constitution establishes the terms and conditions a home-equity lender must satisfy to make a valid loan.[iii] Section 50(a)(6) further prescribes a “Draconian consequence” for noncompliance—loss of the right of forced sale and forfeiture of all principal and interest.[iv]

B.  Priester: Four-Year Statute of Limitations Applies.

Given the myriad technical requirements of section 50(a)(6)[v] and the prospect of the Texas Constitution’s sever forfeiture remedy, Texas consumers have for years attempted to evade foreclosure of home equity loans by filing lawsuits alleging violations of section 50(a)(6). One of the strongest defenses to 50(a)(6) claims had historically been the application of Texas’ residual four-year statute of limitations,[vi] which the federal courts had consistently applied to bar borrower claims.[vii] However, the Southern District of Texas’ opinion in Smith v. JPMorgan Chase Bank, Nat’l Ass’n, created a split within the Fifth Circuit. In Smith, the Court conducted an in-depth analysis of 50(a)(6) and found that non-conforming loans are void ab initio, as opposed to merely voidable,[viii] and that no statute of limitations applies to claims that a home-equity loan, and the lien securing it, are absolutely void.[ix]

In 2013, the Fifth Circuit issued its opinion in Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667 (5th Cir. 2013), resolving the conflict created by Smith and dealing a death blow to the vast majority of would-be 50(a)(6) plaintiffs. In Priester, the Fifth Circuit determined that the cure provision contained in Section 50(a)(6)(Q) rendered nonconforming home-equity loans merely voidable, as opposed to void.[x] The Court went on to hold that Texas’ residual four (4) year limitations period[xi] applies to alleged constitutional infirmities under section 50(a)(6), and that the statutory period begins to run at the closing of the loan.[xii] A Texas intermediate appellate court has since adopted the Priester analysis.[xiii]

C.  Walker: Tex. R. Civ. P. 736 Does Not Extend Statute of Limitations.

Over the past year or so, Texas consumer plaintiffs have attempted several procedural maneuvers to overcome the roadblock to 50(a)(6) claims. One of the most recent incarnations was foreclosed in Walker v. Citimortgage, Inc., No. H-13-03111, 2014 WL 67245, at *3-5 (S.D. Tex. Jan. 8, 2014). In Walker, Citimortgage initiated a judicial foreclosure proceeding pursuant to Texas Rule of Civil Procedure 736.[xiv] Rule 736 is a special procedure that provides for expedited foreclosure of home-equity loans and does not permit counterclaims to be filed.[xv] However, a proceeding under Rule 736 is automatically stayed and dismissed if the borrower, among other things, files a separate, original proceeding in a court of competent jurisdiction challenging the origination, servicing or enforcement of the loan.[xvi] Walker filed a separate action alleging constitutional infirmities under section 50(a)(6), resulting in the dismissal of Citimortgage’s expedited foreclosure under Rule 736. Walker then argued that the four (4) year limitations period was inapplicable to his constitutional claims because Rule 736.11 grants an express right to file a separate action challenging the validity of the loan. The Court declined to adopt Walker’s argument, noting “[t]his rule gives individuals who are defendants in TRCP 736 foreclosure cases the right to bring a separate claim contesting the origination, servicing, or enforcement of the loan agreement. It does not extend the statute of limitations for these types of claims . . . .”[xvii]

Different variations of this argument are currently working their way through Texas courts. In the pending case Puga v. Bank of America, N.A., the plaintiffs have argued that Rule 736’s prohibition on “counterclaims” justifies treating the borrowers as “counter-plaintiffs” in their separate, original action, thereby implicating the limitations extending provision of Tex. Civ. Prac. & Rem. Code Ann. § 16.069(a).[xviii] The Court has yet to rule on this theory, but a decision in Puga may provide further insight regarding whether Texas borrowers will gain any ground in their fight for a limitations-free shot at home-equity loan forfeiture.

[i]     Stringer v. Cendant Mortg. Corp., 23 S.W.3d 353, 355 (Tex. 2000).

[ii]     Id.

[iii]    Tex. Const. art. XVI, § 50(a)(6)(B).

[iv]    Finance Com’n of Texas v. Norwood, 418 S.W.3d 566, 572 (Tex. 2013).

[v]     Tex. Const. art. XVI, § 50(a)(6)(A)–(Q).

[vi]    See Tex. Civ. Prac. & Rem. Code Ann. § 16.051.

[vii]   See, e.g., Reagan v. U.S. Bank Nat’l Ass’n, No. H-10-2478, 2011 WL 472984, at *3-4 (S.D. Tex. Oct. 6, 2011); In re Ortegon, 398 B.R. 431, 440 (Bankr. W.D. Tex. 2008); Hannaway v. Deutsche Bank Nat’l Trust Co., No. A-10-CV-714-LY, 2011 WL 891669, at *3-5 (W.D. Tex. Mar. 11, 2011); Williams v. Deutsche Bank Nat’l Trust Co., No. A-10-CV-711-LY, 2011 WL 891645, at *3-4 (W.D. Tex. Mar. 11, 2011).

[viii]   Smith v. JPMorgan Chase Bank, Nat’l Ass’n, 825 F.Supp.2d 859, 861 (S.D. Tex. 2011).

[ix]    Id. at 868.

[x]     Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 674 (5th Cir. 2013) (stating “a ‘void’ lien could not be ‘voided’ by future action.”).

[xi]    See Tex. Civ. Prac. & Rem. Code Ann. § 16.051.

[xii]   Priester, 708 F.3d at 674-676.

[xiii]   Williams v. Wachovia Mortg. Corp., 407 S.W.3d 391, 396 (Tex. App.—Dallas 2013, pet. denied).

[xiv]   Walker, 2014 WL 67245, at *1.

[xv]    Tex. R. Civ. P. 736.5(d).

[xvi] Id. at 736.11.

[xvii] Walker, 2014 WL 67245, at *1 (emphasis in original).

[xviii]       See, e.g., Puga v. Bank of Am., N.A., No. 3:13-cv-04414-M-BN (N.D. Tex. 2013).

Will Florida Courts Enforce Mortgage Statute of Limitations Waivers?

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By: Manuel S. Hiraldo

In 2006, nationwide foreclosure filings began a significant upward trend that peaked in 2010 with approximately 2.9 million filings that year. [i] For various reasons, some actions filed since 2006 have been dismissed by courts. The re-filing of these dismissed lawsuits may result in the raising of statute of limitations defenses by debtors.  In Florida, the five (5) year statute of limitations for foreclosure actions begins to run when the mortgage loan is accelerated.[ii]. The filing of a foreclosure lawsuit constitutes acceleration of the loan.[iii] Typically, therefore, it is the filing of a foreclosure proceeding that will trigger the five (5) year statute of limitations.

Whether a subsequent foreclosure action filed more than five (5) years after the first proceeding is barred by the statute of limitations is an issue that has not yet been decided by courts in Florida. At least one Florida federal court has found that the voluntary dismissal of an earlier foreclosure action did not bar a subsequent foreclosure action based on defaults on subsequent payments that were less than five years old.[iv] Under this holding, a plaintiff would be able to file suit more than five years after the first action, but would only be entitled to make a claim for payments owed by the debtor that were less than five years old from the date of filing.[v]

The Fourth District Court of Appeal in Florida has held that the dismissal of the first foreclosure lawsuit results in de-acceleration of the loan.[vi] Arguably, under this line of reasoning, de-acceleration of the loan would result in tolling the running of the statute of limitations, since the plaintiff would no longer be demanding payment owed under the loan. This would permit the plaintiff to re-file suit as long as dismissal of the first action did not occur more than five years after the initial filing.

One lesser-known approach for addressing a statute of limitations defense asserted in response to a re-filed foreclosure action is the statute of limitations waiver found in some mortgages. An example of such a waiver is as follows:

26. Waiver of Statute of Limitations. The pleading of the statute of limitations as a defense to enforcement of this Security Instrument, or any and all obligations referred to herein or secured hereby, is hereby waived to the fullest extent permitted by applicable law.

States that have upheld similar statute of limitations waivers, including California[vii], New Jersey[viii], Vermont[ix], and Montana[x] have reasoned that the statute of limitations confers a personal right which is not protected by public policy and which may be waived.[xi] States that have found statute of limitations waivers unenforceable include New York[xii], Texas[xiii], Ohio[xiv], and Arkansas[xv]. In these states, statute of limitations waivers are seen as contrary to public policy.[xvi] Florida courts have not yet addressed statute of limitations waivers found in mortgages. Further, case law regarding the enforceability of statute of limitations waivers in general is limited.

At least one Florida appellate court has upheld a written statute of limitations agreement.[xvii] This was done by the First District Court of Appeal in the case of Pritchett v. Kerr, 354 So. 2d 972 (Fla. 1st 1978). In Pritchett, the plaintiff brought a medical malpractice claim in federal court.[xviii] The defendant failed to timely answer the complaint.[xix] Subsequently, the plaintiff and defendant entered into a stipulation pursuant to which the plaintiff agreed to waive the right to seek a default.[xx] In return, the defendant agreed waived his right to assert a statute of limitations defense in the event of dismissal of the case by the federal court.[xxi]

The federal court dismissed the suit and the plaintiff re-filed the case in state court.[xxii]In response to the state court action, the defendant moved to dismiss on the basis of the running of the statute of limitations, which the trial court granted.[xxiii] On appeal, the First DCA reversed the trial court’s ruling, holding that the lower court erred in failing to give effect to the agreement and stipulation of the parties, because “[t]he statute of limitations is an affirmative defense which can be waived.”[xxiv] The Pritchett court did not raise any public policy concerns in its analysis.[xxv] Rather, the court noted that the defendant had obtained the benefit of the plaintiff’s performance and was therefore clearly bound by the terms of their agreement.[xxvi]

While authority on whether statute of limitations waivers are enforceable is lacking in Florida, cases analyzing the enforceability of mortgage jury trial waivers are instructive, particularly where the right to a jury trial is constitutionally protected, unlike the right to assert the statute of limitations as a defense. Florida courts that have analyzed jury trial waivers have unanimously approved and enforced such waivers.[xxvii]

In all, while limited, case law in Florida supports the enforceability of statute of limitations waivers contained in mortgages, and suggests that Florida will ultimately join other jurisdictions in enforcement of such waivers.  The approval of Florida courts with respect to mortgage jury trial waivers further lends support to this position.  As previously noted, foreclosure filings peaked in 2010.  This would make 2015 the peak year for statute of limitations issues as a result of the five-year limitations period.  As these issues make their way to the appellate courts, we should see opinions enforcing limitations waivers, or at least delineating their applicability in the foreclosure context.

[i] RealtyTrac Staff, 1.4 Million U.S. Properties with Foreclosure Filings in 2013 Down 26 Percent to Lowest Annual Total Since 2007, (January 12, 2014).

[ii] Pursuant to Florida Statute section 95.11(2)(c), the five-year statute of limitations begins to run when the loan is accelerated. See Monte v. Tipton, 612 So. 2d 714, 716 (Fla. 2d DCA 1993)(Section 95.11(2)(c) accrues when optional acceleration clause is invoked).

[iii] Delandro v. America’s Mortg. Servicing, 674 So. 2d 184, 186 (Fla. 3d DCA 1996)(“The complaint in this case indicates that the acceleration took place on February 9, 1994, when the lender filed the mortgage foreclosure complaint and stated, in paragraph 11, that ‘Plaintiff declares the full amount payable under the note and mortgage to be due.’”); Parise v. Citizens Nat’l Bank, 438 So. 2d 1020, 1022 (Fla. 5th DCA 1983)(“Acceleration may be set in motion by filing a pleading in a suit on the full indebtedness.”). “Default by the makers alone [does] not accelerate the indebtedness.” Cent. Home Trust Co. v. Lippincott, 392 So. 2d 931, 933 (Fla. 5th DCA 1980).

[iv] Kaan v. Wells Fargo Bank, N.A., 2013 WL 5944074, at *3 (S.D. Fla. 2013) (“[w]hile any claims relating to individual payment defaults that are now more than five years old may be subject to the statute of limitations, each payment default that is less than five years old…created a basis for a subsequent foreclosure and/or acceleration action.”)(citing Singleton v. Greymar Assocs., 882 So. 2d 1004, 1008 (Fla. 2004) and Fla. Stat. § 95.11(2)(c)).

[v] See id.

[vi] See Olympia Mortgage Corp. v. Pugh, 774 So. 2d 863, 866 (Fla. 4th DCA 2000)(dismissal of lawsuit resulted in mortgagee not accelerating payment on the note and mortgage).

[vii] Prior to the enactment of California Code of Civil Procedure section 360.5, unlimited statute of limitations waivers were upheld as valid by California courts, including the Supreme Court of California. See Dexter v. Pierson, 1 P. 2d 435, 436 (1931); Brownrigg v. deFrees, 238 P. 714, 716 (1925); State Loan etc. Co. v. Cochran, 130 Cal. 245, 248 (1900); Wells, Fargo & Co. v. Enright, 127 Cal. 669, 673-74 (1900); McGee v. Jones, 79 Cal.App. 403, 404 (2d Cal. 1926). However, after the enactment of section 360.5, unlimited waivers were abolished for all practical purposes. Carlton Browne & Co. v. Superior Court, 210 Cal. App. 3d 35, 41 (2d Cal. 1989).

[viii] Hudson County Nat. Bank v. Simpson, 5 N.J. Super. 135, 139 (App. Div. 1950); Quick v. Corlies, 39 N.J.L. 11 (Sup. Ct. 1876).

[ix] State Trust Co. v. Sheldon, 35 A. 177 (1896).

[x] Parchen v. Chessman, 49 Mont. 326 (1914).

[xi] Brownrigg, 238 P. at 716; Sheldon, 35 A. at 177.

[xii] John J. Kassner & Co. v. New York, 415 N.Y.S.2d 785, 789 (1979).

[xiii] Squyres v. Christian, 253 S.W.2d 470, 472 (Tex. Civ. App. 1952).

[xiv] Alliance First National Bank v. Spies, 158 Ohio St. 499, 501 (1953).

[xv] First National Bank of Eastern Arkansas v. Arkansas Development Finance Authority, 44 Ark.App. 143, 146 (1994).

[xvi] See id.

[xvii] See Pritchett v. Kerr, 354 So. 2d 972 (Fla. 1st DCA 1978).

[xviii] Id. at 973.

[xix] Id.

[xx] Id.

[xxi] Id.

[xxii] Id.

[xxiii] Id.

[xxiv] Id.

[xxv] Id.

[xxvi] Id. at 974.

[xxvii] See e.g. Ladner v. AmSouth Bank, 32 So. 3d 99 (Fla. 2d DCA 2009)(affirming trial court’s enforcement of jury trial waiver contained in mortgage); C & C Wholesale, Inc. v. Fusco Management Corp. 564 So. 2d 1259 (Fla. 2d DCA 1990) (waiver of jury trial in lease enforceable); Palomares v. Ocean Bank of Miami 574 So. 2d 1159, 1160 (Fla. 3d DCA 1991)(citing Poller v. First Virginia Mortgage and Real Estate Inv. Trust, 471 So. 2d 104, 106 (Fla. 3d DCA); Credit Alliance Corp. v. Westland Mach. Co., Inc., 439 So. 2d 332 (Fla. 3d DCA 1983); Central Inv. Assoc., Inc. v. Leasing Serv. Corp., 362 So.2d 702 (Fla. 3d DCA 1978)) (rejecting argument that a contractual waiver of jury trial is “constitutionally impermissible”)).

New York State Appellate Court Confirms that Failure to Raise Condition Precedent Defense Results in Waiver of that Defense

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By: Shane Biffar

A recent decision from New York’s Appellate Division, Second Department, confirms that a foreclosure Plaintiff’s failure to comply with a condition precedent to foreclosure does not constitute grounds to vacate a foreclosure judgment obtained on default.   In Deutsche Bank Trust Co. Ams. v. Shields, 2014 N.Y. App. Div. LEXIS 2201, 2014 NY Slip Op 2254 (N.Y. App. Div. 2d Dep’t 2014), the defendant borrower appealed from a judgment of foreclosure and sale which had entered after the borrower defaulted in appearing or answering the complaint.   At the trial court, the borrower moved to vacate the foreclosure judgment, arguing that the plaintiff’s failure to provide thirty (30) days’ written notice of the loan payment default, which was listed as a condition precedent in the mortgage, prevented the trial court from entering the judgment of foreclosure and sale. The trial court agreed with the borrower and vacated its own judgment of foreclosure and sale.

On appeal, the Second Department reversed and held that “the plaintiff’s alleged failure to satisfy a condition precedent . . . even if true, did not deprive the Supreme Court of jurisdiction to enter the judgment of foreclosure and sale.”  This case confirms prior decisions which have held that the defense of failure to comply with notice requirements, including those stated in the terms of the mortgage and those prescribed by statute (see RPAPL §§ 1303 and 1304), is waived if the borrower fails to raise it in the answer or in opposition to plaintiff’s motion for summary judgment on the complaint.[1]  In essence, “[a] judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and concludes all matters of defense which were or might have been litigated in the foreclosure action.” [2]

The Deutsche Bank Trust Co. Ams. decision is significant due to the procedural posture of the case. In general, a motion to vacate a prior judgment or order is addressed to the trial court’s “sound discretion, subject to reversal only where there has been a clear abuse of that discretion.”[3]  Accordingly, the Deutsche Bank Trust Co. Ams. decision, which is consistent with the Second Department’s previous holding in Signature Bank v. Epstein, 95 A.D.3d 1199, 1201 (N.Y. App. Div. 2d Dep’t 2012), appears to firmly establish the Court’s position that “condition precedent” defenses are not only waived if not asserted, but that a trial court abuses its discretion by vacating a default judgment on grounds of plaintiff’s failure to comply with notice requirements. 

[1] See Signature Bank v. Epstein, 95 A.D.3d 1199, 1201 (N.Y. App. Div. 2d Dep’t 2012); Pritchard v. Curtis, 101 A.D.3d 1502, 1504-1505 (N.Y. App. Div. 3d Dep’t 2012).

[2] Long Is. Sav. Bank v. Mihalios, 269 A.D.2d 502, 503 (N.Y. App. Div. 2d Dep’t 2000).

[3] Maddux v. Schur, 53 A.D.3d 738, 739 (N.Y. App. Div. 3d Dep’t 2008)..

 

California Supreme Court Declines to Depublish Glaski v. Bank of America

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By: Sridavi Ganesan
Connect: Sridavi Ganesan

On February 26, 2014 the California Supreme Court declined to depublish the controversial decision issued by the Court of Appeal in Glaski v. Bank of America, 218 Cal.App.4th 1079 (2013).  See Glaski v. Bank of America (Supreme Court No. S213814), depublication request denied Feb. 26, 2014.  In Glaski, the plaintiff brought an action against his loan investor and deed of trust beneficiary and trustee, among others, to set aside the foreclose sale of his property.  The plaintiff alleged a number of claims, including fraud, quiet title, and declaratory relief.  The plaintiff also alleged a claim for wrongful foreclosure on the basis that defendants lacked standing to foreclose on his property, because his loan was assigned into a securitized trust after the trust closing date set forth in the pooling and servicing agreement governing the securitized trust, thereby voiding the assignment.  Glaski, 218 Cal.App.4th at 1093.  Prior to Glaski, the vast majority of California appellate and federal courts had held that in such situations, the plaintiff lacked standing to challenge the validly of an assignment to a securitized trust, because he or she was not a party or third party beneficiary to the securitized trust pooling and servicing agreement.  See e.g. Aniel v. GMAC Mortgage, Inc., Case No. C 12-04201 SBA, 2012 WL 5389706 at *4 (N.D. Cal. Nov. 2, 2012) (plaintiff lacks standing to challenge validity of assignment of deed of trust based on non-compliance with PSA). The trial court sustained the demurrers brought by the defendants without leave to amend as to all causes of action and entered judgment against the plaintiff.  On appeal, the Glaski Court, however, found that the assignment at issue was void (rather than voidable) and held that in such a situation, a borrower has standing to challenge the assignment, as the foreclosing entity lacks authority to foreclose on the property in the first place.  Glaski, 218 Cal.App.4th at 1095-97.

The Court based its holding on the allegation that the securitized trust was formed under New York trust law, which did not permit a securitized trust to accept a loan past the trust closing date.  However, the securitized trust was actually formed under Delaware, not New York, law, and under Delaware law, assigning a loan into a securitized trust beyond the trust closing date would not automatically void the assignment.  In addition, the Court never addressed whether the plaintiff was prejudiced by the assignment, such that he was unable to make his mortgage payments or cure his default due to the “void” assignment.  A number of courts have held that irregularities in the foreclosure process, including errors in assignments of deeds of trusts, are irrelevant where the plaintiff cannot demonstrate that he or she suffered prejudice.  See e.g. Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal.App.4th 497, 514-15 (2013).

Since the Glaski decision was issued seven months ago, federal and California decisions have generally continued to follow the majority view.  Other than a single exception, no federal court decision or published California Court of Appeal decision has adopted the Glaski holding. See Kling v. Bank of America, N.A., Case No. CV-13-2648 DSF (CWx), 2013 WL 7141259 at *2 (C.D. Cal. Sept. 4, 2013).  In fact, Glaski has been referred to as “an outlier,” and some California federal courts have outright held that they will decline to follow Glaski unless and until the California Supreme Court or the Ninth Circuit explicitly endorses its holding.  See Sandri v. Capital One, N.A., 501 B.R. 369, 374 (Bankr. N.D. Cal. 2013); Snell v. Deutsche Bank Nat. Trust Co., Case No. 2:13-cv-02178-MCE-DAD, 2014 WL 325147 at *5 (E.D. Cal. Jan. 29, 2014); Newman v. Bank of New York Mellon, Case No. 1:12-CV-1629 AWI GSA, 2013 WL 5603316 at *3, n. 2 (E.D. Cal. Oct. 11, 2013).

It will be interesting to see whether the California Supreme Court’s decision to not disturb Glaski‘s publication status will be viewed as a signal of the Supreme Court’s position on the holding or whether the courts will continue to reject Glaski so that it will remain an “outlier.”  Only time will tell.

 

 

Form Demand Letters Under Fire in Virginia

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By Joe Patry

A recent opinion from the United States District Court for the Eastern District of Virginia, Claudio Fariasantos v. Rosenberg & Associates, LLC, 2014 WL 928206, case number 3:13CV543 (E.D. Va. Mar. 10, 2014), where the court denied a motion to dismiss a putative class action, highlights the potential danger in using form demand letters that are not changed to match each state’s specific foreclosure statutes and practices.  Lenders must also look at the plain language of the federal Fair Debt Collections Practices Act (“FDCPA”) to ensure that their communications to borrowers are do not violate the FDCPA’s requirements that communications to borrowers are accurate and fully inform the borrower of all needed disclosures which the FDCPA requires.

In Fariasantos, the borrowers received a form demand letter from a collections law firm which stated that their lender had referred their case to an attorney’s office for the purpose of taking “legal action.“  However, the borrowers live in Virginia, which is a non-judicial foreclosure state – and the court noted that the lender never actually intended to file a lawsuit.  Fariasantos, 2014 WL 928206, at *1.  As a result, the court found that the statement in the demand letter was deceptive and could violate the FDCPA.  Under the “least sophisticated consumer” standard, which is the standard that the Fourth Circuit applies in evaluating FDCPA claims, “a statement is false or misleading if ‘it can be reasonably read to have two or more meanings, one of which is inaccurate.”  Id. at *4 (citing Goodrow v. Friedman & MacFadyen, P.A., 788 F.Supp.2d 464, 472 (E.D.Va.2011)).  Using this standard, the court found that the consumer could be misled into thinking that a lawsuit would be filed due to the use of the terms “legal action,” and this might impact the consumer’s, “ability to make intelligent decisions with respect to the alleged debt.”  Id. at *6.   

Additionally, the demand letter contained a statement that unless the consumer disputed the validity of the debt, the “debt collector“will assume that the debt is valid.  Id. at *7.  The court noted that the letter may violate the FDCPA because it failed to specify who, exactly, the debt collector is – i.e., the letter did not state that the law firm would assume that the debt is valid, and thus the letter, “simply does not convey who will be doing the assuming.”  Id. at *8.  As a result, the court found that this statement could violate the FDCPA and the court denied the motion to dismiss on this ground as well.  Id. at *9.