Case: 14-50397   Document: 00513088531     Page: 1   Date Filed: 06/22/2015




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

                                                                         FILED
                                 No. 14-50397                         June 22, 2015
                                                                      Lyle W. Cayce
                                                                           Clerk
CAP HOLDINGS, INCORPORATED, doing business as Recovery
Management International,

             Plaintiff - Appellant

v.

KATHLEEN A. LORDEN; JUSTIN PRUITT; GARY E. HAISLER; URIKA R.
MENDOZA; JUDITH C. RUSHING; JOYCE M. STEPHAN,

             Defendants - Appellees




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


Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      In 1990, property encumbered by a deed of trust held by the Resolution
Trust Company (“RTC”) was foreclosed upon and sold to a third party in a tax
sale, purportedly extinguishing the RTC’s lien. Two years ago, Plaintiff CAP
Holdings, Inc.—the alleged current holder of the deed of trust—sued the
current owners of the property seeking a declaration that the foreclosure and
resulting sale were void for violating 12 U.S.C. § 1825(b)(2), which prohibits
“property of the” RTC from being foreclosed upon or sold “without the consent
     Case: 14-50397       Document: 00513088531          Page: 2     Date Filed: 06/22/2015



                                       No. 14-50397
of” the RTC. 1 The district court dismissed CAP Holdings’s complaint on the
ground that the six-year limitations period had expired.                       Because our
precedent dictates that, if the sale was conducted in violation of § 1825(b)(2),
then it indeed is entirely void, and because the district court failed to consider
whether the sale’s being void would render the defendants without standing
under Texas law to assert a limitations defense, we VACATE the district
court’s judgment and REMAND this case for further proceedings.
                                               I.
       In 1985, an entity called the Jefferson Group purchased a 94-acre tract
of land in Georgetown, Texas (“the Property”), using a loan from Lincoln
Federal Savings & Loan.            In exchange for the loan, the Jefferson Group
executed a promissory note in favor of Lincoln in the amount of $5.5 million,
secured by a deed of trust on the Property.                 In 1987, the loan matured,
apparently unpaid. In mid-1990, Lincoln failed and went into receivership,
with the RTC as its receiver.            Soon after, the RTC successfully sued the
Jefferson Group over the unpaid note in a Florida court, obtaining a money
judgment (“the Florida Judgment.”).
       In addition to not paying the note, the Jefferson Group, it seems, also did
not pay its property taxes. Accordingly, in October 1990, the Georgetown
Independent School District (“the GISD”) filed a tax-foreclosure suit against
the Property, naming as defendants, among others, the Jefferson Group and
the RTC. The RTC answered and appeared at trial in the suit but, apparently,




       1The current version of § 1825(b)(2) refers only to the RTC’s successor, the Federal
Deposit Insurance Corporation (“the FDIC”). See § 1825(b)(2) (“No property of the
Corporation shall be subject to levy, attachment, garnishment, foreclosure, or sale without
the consent of the Corporation . . . .”); 12 U.S.C. § 1811(a) (defining “the Corporation” as the
FDIC). No party disputes, however, that while the RTC existed, § 1825(b)(2) applied equally
to it. When discussing § 1825(b)(2) and our cases interpreting it, then, this opinion uses the
terms “FDIC” and “RTC” interchangeably.
                                               2
     Case: 14-50397        Document: 00513088531          Page: 3     Date Filed: 06/22/2015



                                        No. 14-50397
did not argue that under § 1825(b)(2) its consent was required for the GISD to
foreclose upon its lien. After obtaining a judgment of foreclosure against all
defendants, the GISD purchased the Property.                      Eventually, subsequent
purchasers developed and subdivided the Property into a residential
subdivision with approximately 400 houses, including those owned by the
defendants.
       Meanwhile, in 1995, the RTC was dissolved and the FDIC was
substituted as its “statutory successor.” See, e.g., FDIC v. Barton, 

, 862 (5th Cir. 2000). Accordingly, the FDIC assumed ownership of the
Jefferson Group loan.
       In 1996, the FDIC assigned some of its assets to an entity called the
Reliant Group, L.P.         Among those assets was an asset referred to in the
assignment documentation as “Jefferson Group.” According to CAP Holdings,
the “Jefferson Group” asset included all of the FDIC’s interest in the Jefferson
Group loan—that is, both the Florida Judgment and the deed of trust. 2
Following a series of subsequent assignments, CAP Holdings acquired the



       2 The Lorden Defendants (see infra p. 4) argue that CAP Holdings’s allegation that the
FDIC’s assignment included the deed of trust as well as the Florida Judgment is implausible.
See, e.g., Ashcroft v. Iqbal, 

, 679 (2009) (“[O]nly a complaint that states a
plausible claim for relief survives a motion to dismiss.”). This argument is based on the
assignment documentation attached to CAP Holdings’s complaint, which at one point refers
to the “Jefferson Group” asset as, simply, a “Judgment.” CAP Holdings explains, however,
that the FDIC designates all of the assets it sells as “Judgments,” “Deficiencies,” or “Charge-
offs,” depending on the stage of collection of the loans constituting the assets. Thus, according
to CAP Holdings, the assignment documentation refers to the “Jefferson Group” asset as a
“Judgment” because the FDIC had obtained a judgment (the Florida Judgment) against the
debtor, not because the asset is only a judgment. Given this explanation, there is at least a
reasonable inference that the “Jefferson Group” asset included the deed of trust as well as
the Florida Judgment. See, e.g., Kapps v. Torch Offshore, Inc., 

, 210 (5th Cir.
2004) (“On a motion to dismiss, this Court must construe the factual allegations in a
complaint, and all reasonable inferences therefrom, in the light most favorable to the
plaintiffs.”); see also Quantum Varde Asset Fund LLC v. Zuffle, 73 F. App’x 672, 673, 675–76
(5th Cir. 2003) (rejecting an argument similar to the defendants’ in a case involving an FDIC
assignment).
                                               3
    Case: 14-50397    Document: 00513088531     Page: 4   Date Filed: 06/22/2015



                                 No. 14-50397
Jefferson Group asset. After doing so, CAP Holdings filed a notice of recording
in the public records of Williamson County, Texas, claiming a deed-of-trust lien
on the Property.
      In March 2013, CAP Holdings filed a declaratory-judgment action
against the defendants, seeking declarations that the 1990 judgment of
foreclosure was void; that, therefore, the deeds held by the defendants were
void; and that it had a valid lien on the portion of the Property claimed by the
defendants. CAP Holdings’s claim was based on § 1825(b)(2), which, as we
have noted, prohibits the foreclosure or sale of the RTC’s property without the
RTC’s consent; the tax sale, it was alleged, was conducted in violation of
§ 1825(b)(2) because the RTC had not expressly consented to it. And under our
precedent, in cases like FDIC v. Lee, 

(5th Cir. 1997), Trembling
Prairie Land Co. v. Verspoor, 

(5th Cir. 1998), and First State
Bank-Keene v. Metroplex Petroleum, 

(5th Cir. 1997), CAP
Holdings asserted, a tax sale conducted in violation of § 1825(b)(2) is “null and
void ab initio.”
      Several of the defendants—Lorden, Haisler, Mendoza, Rushing, and
Stephan (“the Lorden Defendants”)—moved to dismiss under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). They argued, primarily, that regardless
of the foreclosure’s validity, the foreclosure cannot now be challenged because
of the statute of limitations bar. The other defendant—Pruitt—moved for
summary judgment asserting the same argument. In response, CAP Holdings
contended that, because the tax sale was entirely void, the defendants were
not in “privity” with the Jefferson Group and thus lacked standing under Texas
law to invoke the statute of limitations.
      The district court granted both of the defendants’ motions and dismissed
the complaint. In so doing, the district court did not consider the questions
posed by the parties’ arguments—whether, under our precedent, a tax sale
                                       4
     Case: 14-50397       Document: 00513088531          Page: 5     Date Filed: 06/22/2015



                                       No. 14-50397
conducted in violation of § 1825(b)(2) is void; and if so, whether its being void
renders the purchaser without standing to invoke the statute of limitations.
Instead, without mentioning Lee, Trembling Prairie, or the relevant aspects of
First State Bank-Keene, the district court summarily rejected CAP Holdings’s
voidness argument as being one “of the boot-strap variety.” CAP Holdings, Inc.
v. Haisler, CIVIL NO. 1:13-CV-204-LY, 

, at *6–7
(W.D. Tex. Mar. 31, 2014). 3 It then proceeded to the merits of the defendants’
limitations defense. Under federal law, the district court held, the limitations
period was six years from the date the cause of action accrued or the date the
RTC was appointed as receiver, whichever is later. 

(citing 12 U.S.C.
§ 1821(d)(14)(B)). Accordingly, the limitations period began on the date the
RTC was appointed as receiver in mid-1990, and it expired in mid-1996. 

district court concluded, CAP Holdings’s suit was time-barred. 

                                              II.
       The standard of review for all issues in this appeal is de novo. See Miller
v. BAC Home Loans Servicing, L.P., 

, 721 (5th Cir. 2013) (12(b)(6));
Zephyr Aviation, L.L.C. v. Dailey, 

, 570 (5th Cir. 2001) (12(b)(1));




       3 The district court seems to have misconstrued CAP Holdings’s standing argument
as an argument that the defendants lacked Article III standing to defend this lawsuit. See
CAP Holdings, 

, at *6–7 (“Article III of the United States
Constitution requires a case or controversy. Having created the controversy by claiming a
lien on property owned by Defendants, CAP Holdings cannot now say Defendants may not
defend themselves against CAP Holdings’s claims by asserting that those claims are time-
barred.”). Although CAP Holdings indeed refers to the defendants’ “standing” to invoke the
statute of limitations, it clearly is disputing only whether under Texas law they are proper
parties to assert a limitations defense, not whether they have “standing” in the sense that
their interest in this lawsuit is sufficient to create a justiciable “case or controversy” under
Article III of the Constitution. Indeed, an argument that the defendants lacked Article III
standing would be nonsensical; the Article III standing inquiry focuses only on “the party
invoking the Court’s authority,” Camreta v. Greene, 

, 2028 (2011)—and here,
that is the plaintiff, CAP Holdings.
                                               5
    Case: 14-50397     Document: 00513088531     Page: 6   Date Filed: 06/22/2015



                                  No. 14-50397
Carpenters Dist. Council v. Dillard Dep’t Stores, 

, 1281 (5th Cir.
1994) (summary judgment).
                                       III.
                                       A.
      On appeal, CAP Holdings does not dispute the district court’s calculation
of the limitations period. Instead, its sole assignment of error is that the
district court should have not ever reached the statute-of-limitations question
because the defendants lack standing to even raise a limitations defense. This
is so, in CAP Holdings’s view, because (1) under Texas law, the statute of
limitations may be invoked by a party other than the original debtor only if the
party is in “privity” with the debtor; (2) the defendants here would be in privity
with the debtor, the Jefferson Group, only if they could trace their title in the
Property back to the Jefferson Group; (3) the tax sale through which the
defendants’ predecessor-in-interest, the GISD, obtained title to the Property
was conducted without the RTC’s consent and thus in violation of § 1825(b)(2);
and (4) the defendants therefore cannot trace their title back to the Jefferson
Group because the tax sale, having been conducted in violation of § 1825(b)(2),
was without legal effect—“null and void ab initio.”
      The defendants do not defend the district court’s summary rejection of
CAP Holdings’s argument as being “of the boot-strap variety.”           See CAP
Holdings, 

, at *6–7. Nor do they dispute most of
the premises underlying CAP Holdings’s argument—that is, they do not
dispute that, to assert a limitations defense, they must be in privity with the
Jefferson Group; nor do they argue that they can show privity other than by
tracing their title back to the Jefferson Group; nor do they argue that, by
appearing as a party in the foreclosure proceedings, the RTC impliedly
consented to the tax sale such that § 1825(b)(2) was not violated. Indeed, in
their arguments before this court, the defendants have confined their
                                        6
     Case: 14-50397        Document: 00513088531          Page: 7     Date Filed: 06/22/2015



                                        No. 14-50397
disagreement with CAP Holdings to a single point: according to the defendants,
CAP Holdings is wrong to assert that a tax sale conducted in violation of
§ 1825(b)(2) is void in its entirety; instead, the defendants say, such a sale is
void only insofar as it affected the FDIC’s lien on the Property. Thus, the
defendants, assuming for the purposes of this appeal the RTC’s failure to
consent to the sale, conclude that the tax sale here nevertheless effectively
conveyed title from the Jefferson Group to the GISD (albeit, title subject to the
RTC’s lien).      The defendants, as successors-in-interest to the GISD, are
therefore in privity with the Jefferson Group and have standing to assert the
statute of limitations. 4


       4 The Lorden Defendants also assert three different grounds for affirming the district
court’s grant of their motion to dismiss, but none is persuasive. First, the Lorden Defendants
argue that, even if CAP Holdings is correct that the tax sale was void, the defendants have
gained title to the Property through adverse possession. See Tex. Civ. Prac. & Rem. Code
§ 16.025. But, in Texas, adverse possession is an affirmative defense, see, e.g., Bauer v. Jasso,

, 555–56 (Tex. Ct. App. 1997), and dismissal under Rule 12(b)(6) is
appropriate based on a successful affirmative defense only if “that defense . . . appear[s] on
the face of the complaint.” EPCO Carbon Dioxide Prods., Inc. v. JP Morgan Chase Bank, NA,

, 470 (5th Cir. 2006). Here, several elements of adverse possession under
§ 16.025 fail to appear on the face of the complaint. See, e.g., Spiller v. Woodard, 

, 626–27 (Tex. Ct. App. 1991) (listing the elements of adverse possession under § 16.025,
including the element that the adverse-possession claimant must have paid property taxes
on the property at issue). Thus, the Lorden Defendants’ adverse-possession defense fails, at
least here at the motion-to-dismiss stage.
        The Lorden Defendants also argue, with little elaboration, that the district court’s
grant of their motion to dismiss should be affirmed on the ground that CAP Holdings has
failed adequately to allege Article III standing. The district court correctly rejected this
argument. CAP Holdings alleges that its lien was purportedly extinguished in a tax
foreclosure, and that the defendants are successors to the party (the GISD) who brought the
foreclosure proceeding. These are sufficient allegations of an “‘injury in fact’ that is fairly
traceable to the . . . defendant[s] and likely to be redressed by a favorable judicial decision.”
Lexmark Int’l, Inc. v. Static Control Components, Inc., 

, 1386 (2014) (quoting
Lujan v. Defenders of Wildlife, 

, 560 (1992)); see also Ass’n of Am. Physicians &
Surgeons, Inc. v. Tex. Med. Bd., 

, 550 (5th Cir. 2010) (“When standing is
challenged on the basis of the pleadings, we must accept as true all material allegations of
the complaint and construe the complaint in favor of the complaining party.” (internal
quotation marks omitted)).
        Finally, the Lorden Defendants argue that, purely as a matter of public policy, we
should not undo a decades-old tax sale and thereby cloud the title of the defendant
homeowners. This argument mistakes the nature of our task, which is, at least primarily, to
                                               7
     Case: 14-50397       Document: 00513088531          Page: 8     Date Filed: 06/22/2015



                                       No. 14-50397
           The central question in this appeal, then—at least as the parties have
presented it to us—is a narrow one: whether a tax sale conducted in violation
of § 1825(b)(2) is void in its entirety, or void only as to the FDIC. Consulting
our precedent, we conclude that a tax sale conducted in violation of § 1825(b)(2)
is void in its entirety. See, e.g., 

.
                                              B.
       Section 1825(b)(2), as amended by the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 (FIRREA), provides:
       No property of the Corporation shall be subject to levy,
       attachment, garnishment, foreclosure, or sale without consent of
       the Corporation, nor shall any involuntary lien attach to the
       property of the Corporation.
12 U.S.C. § 1825(b)(2). We have considered the effect of a sale of FDIC property
that was conducted “without consent of the” FDIC, and thus in violation of
§ 1825(b)(2), on at least three occasions. See First State 

–40; Trembling 

–91; 

. Each
time, we have held explicitly that such a sale is, simply, “null and void.” First
State 

; Trembling 

; 

.        Accordingly, the defendants’ argument that a tax sale
conducted in violation of § 1825(b)(2) is void only as to the FDIC is contrary to
our precedent. We discuss Lee, Trembling Prairie, and First State Bank-Keene
in turn.
       In Lee, at a tax sale, the defendant sold property on which the FDIC held
a lien without first notifying the FDIC. 

. After learning
of the sale, the FDIC filed suit in the district court, arguing that, because it
was not provided notice, the sale was void, denying its constitutional right to



“apply [the law] as we find it,” Jackson v. FIE Corp., 

, 530 (5th Cir. 2002), not to
ensure that the outcome of each case accords with our notions of good policy.
                                               8
    Case: 14-50397    Document: 00513088531      Page: 9   Date Filed: 06/22/2015



                                  No. 14-50397
due process. 

district court granted summary judgment to
the FDIC. 

affirmed, but on a different ground: the tax sale had
been conducted in violation of § 1825(b)(2). 

The Lee court
emphasized that § 1825(b)(2) “represents the express will of Congress that the
FDIC must consent to any deprivation of property initiated by a state.” 

Furthermore, we stated, “the meaning of [§ 1825(b)(2)] is plain, . . . a
lien held by the FDIC is ‘property’ within the meaning of the statute, and . . .
said lien cannot be extinguished through a tax sale conducted without the
consent of the FDIC.” 

Lee court concluded, the tax sale at issue
was “null and void.” 

decided a year after Lee, is much to the same effect.
In Trembling Prairie, local taxing authorities, at a series of tax sales, sold
property on which a bank held a 

. Before the bank’s right
of redemption had expired, the bank failed, and the FDIC took over as receiver.

The entity that had purchased the property through the tax sales,
Trembling Prairie, petitioned to quiet title, but the FDIC intervened, asserting
that, to quiet title in Trembling Prairie would extinguish the FDIC’s right of
redemption without its consent, in violation of § 1825(b)(2). 

This
court agreed. First, the Trembling Prairie court reasoned that the right of
redemption was “property” of the FDIC within the meaning of the statute. 

Next, noting that “FIRREA was drafted to help create stability and
economic recovery in the financial industry” after the “crisis” in the late 1980s,
the court held that a petition to quiet title was “functionally the same” as a
foreclosure or a tax sale, and therefore that Ҥ 1825 must be construed to cover
petitions to quiet title as triggering events.” 

Citing Lee, we
concluded that “the tax sale at issue . . . violated 12 U.S.C. § 1825(b)(2) and
thus is null and void.” 

                                        9
   Case: 14-50397     Document: 00513088531     Page: 10   Date Filed: 06/22/2015



                                 No. 14-50397
      That brings us to First State Bank-Keene, which is at the crux of the
parties’ disagreement.     There, local authorities brought a foreclosure
proceeding against certain property, naming the owner and other interested
parties as 

–34. Apparently not realizing that the
FDIC held a lien on the property, the local authorities neither named the FDIC
as a party, nor obtained the FDIC’s consent. 

The property was
foreclosed and sold at a tax sale. 

later, the FDIC sued the
purchasers, seeking to annul the sale on the ground that it had been conducted
without the FDIC’s consent in violation of § 1825(b)(2). 

the
FDIC sold the loan to First State Bank-Keene, who was substituted as
plaintiff, seeking to annul the sale.) The purchasers asserted that the bank’s
suit was barred by the statute of limitations, but the district court rejected
their argument and annulled the sale. 

the district court, the
sale to the purchasers was void because the sale had been conducted in
violation of § 1825(b)(2). And because the sale to the purchasers was void, it
transferred no interest to the purchasers, so the purchasers were not in privity
with the debtor and lacked standing under Texas law to invoke the statute of
limitations against the bank’s claim. 

      This court reversed. But in doing so, we did not dispute that for the
purchasers to invoke the statute of limitations, privity was required with the
original debtor. Indeed, we articulated the “correct[]” Texas rule as being that
“‘[t]he defense of limitations is generally a personal privilege of the debtor,’”
such that it may be invoked only by the debtor or one who is in “privity” with
him—that is, “‘one who lawfully acquires property or any right on which the
remedy operates, such as a lienholder or subsequent purchaser.’” 

(quoting 50 Tex. Jur. 3d, Limitation of Actions, § 18 (1986)). Where the district
court erred, First State Bank-Keene held, was in concluding that the tax sale
had violated § 1825(b)(2). As the court explained, Texas law provides that a
                                       10
      Case: 14-50397     Document: 00513088531          Page: 11     Date Filed: 06/22/2015



                                       No. 14-50397
tax foreclosure has no effect on the interests of parties not named in the
foreclosure proceeding. 

“Consequently,” the court reasoned,
because the FDIC had not been named as a party in the foreclosure proceeding,
“the tax sale did not constitute a deprivation of the FDIC’s property, and thus
did not violate section 1825(b)(2).” 

“Unlike [in] Lee and [Trembling
Prairie],” then, “the tax sale was not ‘null and void’ in its entirety”—instead, it
effectively conveyed the property from the debtor to the purchasers, subject to
the FDIC’s lien. 

purchasers were in privity with the debtor and
had standing under Texas law to assert the statute of limitations. 

40.
                                             C.
        In our view, Lee, Trembling Prairie, and First State Bank-Keene are clear
that the law in this circuit is that, when a tax sale is conducted in violation of
§ 1825(b)(2), it is, without qualification, “null and void.” First State Bank-

; Trembling 

; 

.
        The defendants here rely on First State Bank-Keene in asserting their
contrary view. According to the defendants, First State Bank-Keene clarifies
that when the Lee and Trembling Prairie courts held that a sale conducted in
violation of § 1825(b)(2) was “null and void,” they did not hold that the sale was
entirely void; instead, the sale was void only as to the FDIC. 5 This assertion



        5Defendant Pruitt makes the bolder argument that, even if Lee and Trembling Prairie
held that sales conducted in violation of § 1825(b)(2) are void in their entirety, those cases
were overruled in this respect by First State Bank-Keene. But “it is a well-settled Fifth
Circuit rule of orderliness that one panel of our court may not overturn another panel’s
decision, absent an intervening change in the law, such as by a statutory amendment, or the
Supreme Court, or our en banc court.” EEOC v. LHC Grp., Inc., 

, 695 (5th Cir.
2014) (internal quotation marks omitted). Accordingly, even if First State Bank-Keene were
inconsistent with Lee and Trembling Prairie—which, as we explain in the text, it is not—we
would be bound to follow Lee and Trembling Prairie, not First State Bank-Keene. See 

14-50397     Document: 00513088531     Page: 12   Date Filed: 06/22/2015



                                 No. 14-50397
misreads First State Bank-Keene. It is true that the First State Bank-Keene
court held that the tax sale in that case was void only insofar as it claimed to
extinguish the FDIC’s lien.     But as we have explained, it reached that
conclusion because it held that the tax sale did not, as a matter of Texas law,
violate § 1825(b)(2). Because the foreclosing authorities had not named the
FDIC as a party in the foreclosure proceeding, the First State Bank-Keene court
held that the resulting tax sale did not affect the FDIC’s lien, and thus did not
violate § 1825(b)(2). Had § 1825(b)(2) been violated, however, the First State
Bank-Keene court was clear: as in Lee and Trembling Prairie, the sale would
have been “‘null and void’ in its entirety.” First State 

.
       Here, unlike in First State Bank-Keene, the RTC was named as a party
in the foreclosure proceeding, and the foreclosure judgment explicitly
purported to extinguish the RTC’s lien. Thus—assuming, as the defendants
do, that the RTC did not consent—the sale violated § 1825(b)(2). Accordingly,
Lee and Trembling Prairie are the governing cases, not First State Bank-Keene.
Because Lee and Trembling Prairie hold that sales violating § 1825(b) are
entirely “null and void,” see Trembling 

; 

, and because First State Bank-Keene is not to the contrary, our
precedent requires us to agree with CAP Holdings that the tax sale at issue
here, absent the RTC’s consent, is entirely void.
                                      IV.
       As we have said, this appeal comes before us from the district court’s
judgment dismissing the complaint based on the sole ground of the statute of
limitations. On appeal, the case took a somewhat different turn that required
our consideration of § 1825(b)(2) and the effect (or lack thereof) of a sale
conducted in violation of that statute. We have decided, in accordance with
our precedent, that a foreclosure sale conducted in violation of § 1825(b)(2) is
                                       12
   Case: 14-50397     Document: 00513088531      Page: 13   Date Filed: 06/22/2015



                                  No. 14-50397
null and void in its entirety. We make clear, however, that we have only
assumed (as the defendants have) that § 1825(b)(2) was violated; we have not
decided that the statute has been violated based on the facts here, and the
question remains open on remand. We have noted, however, that although
there was no formal FDIC consent to the foreclosure proceedings, the RTC was
represented at the proceedings by counsel who did not raise any objection
based on § 1825(b)(2). Furthermore, although we have explained that Texas
law requires a party to be in privity with the original debtor in order to assert
the debtor’s limitations defense, we have not decided whether the defendants
here have privity with the Jefferson Group.
      CAP Holdings mistakenly interprets First State Bank-Keene as resolving
this latter issue. CAP Holdings says First State Bank-Keene held that, because
a void tax sale conveys no legal interest to the purchaser, the purchaser lacks
privity under Texas law to assert the original debtor’s personal defense of
limitations. But First State Bank-Keene cannot be read so broadly. Although
the district court in First State Bank-Keene may have read Texas law in the
way urged by CAP Holdings, see First State 

, our
opinion did not expressly adopt the district court’s privity analysis. 

35. Furthermore, even if the First State Bank-Keene court had stated that, in
Texas, the purchaser at a void tax sale lacks privity to assert the debtor’s
limitations defense, that statement likely would have been dictum, given the
court’s dispositive conclusion that the tax sale there was not, in fact, void. See
supra pp. 10–12. Thus, this specific question—whether, under Texas law, a
party who purchases property at a tax sale that is later held to be void, has
privity to assert the original debtor’s personal defense of limitations—has not
been addressed by this circuit. The question was not briefed or argued before
us, and its answer is not immediately apparent under Texas law. See Goswami
v. Metro. Sav. & Loan Ass’n, 

, 489 (Tex. 1988) (stating that a
                                       13
   Case: 14-50397     Document: 00513088531      Page: 14   Date Filed: 06/22/2015



                                  No. 14-50397
property interest sufficient to create privity may be “legal or equitable”); In re
Estate of Hardesty, 

, 903–04 (Tex. Ct. App. 2014) (explaining
the “more liberal attitude toward the privity requirement” exemplified by
“modern cases”); see also Jordan v. Bustamante, 

, 39–41 (Tex.
Ct. App. 2005) (describing a split among Texas appellate courts over the
arguably analogous question whether the purchaser of property at a tax sale
must prove the validity of the sale in order to assert a limitations defense under
Tex. Tax Code Ann. § 33.54).
      We therefore VACATE the district court’s judgment (based solely on the
limitations bar) and REMAND the case for further proceedings. If, on remand,
the district court concludes that the RTC did not “consent” to the tax sale
within the meaning of § 1825(b)(2), then the sale was conducted in violation of
§ 1825(b)(2), and is therefore void in its entirety. See supra Part III. The
dispositive question then will become the one identified above—whether,
under Texas law, a party who purchases property at a tax sale is in privity
with the original debtor such that it can assert the personal defense of
limitations even when the tax sale is later declared entirely void. Of course,
we do not mean to suggest that the district court is confined to this analysis,
but may consider, in its properly exercised discretion, any arguments, theories,
or defenses presented by the parties, not inconsistent with this opinion.
                                                  VACATED and REMANDED.




                                       14