United States District Court, S.D. Texas, Houston Division
VANESSA D. GILMORE UNITED STATES DISTRICT JUDGE.
before the Court is Defendant's Motion for Summary
Judgment and Brief in Support. (Instrument No.
Devdara, L.L.C., a Texas Limited Liability Company,
("Plaintiff) seeks declaratory judgment that the statute
of limitations bars Defendant Wells Fargo, N.A.
("Defendant") from foreclosing on property located
at 2114 Enchanted Park Lane, Katy, Texas 77450 (the
"Property"), because more than four years has
passed since the underlying loan was accelerated. Plaintiff
also requests that the Court void Defendant's deed of
trust and seeks a determination regarding who is entitled to
payment if the deed of trust is not void. Defendant asserts
that the there is no evidence that the underlying loan was
accelerated. In addition, Defendant posits that summary
judgment evidence clearly establishes that it unequivocally
abandoned any purported acceleration by sending a subsequent
notice of default requesting payment on less than the full
amount of the loan and therefore the limitations to foreclose
have not expired and Defendant is entitled to summary
is a Texas limited liability company. Based on publicly filed
records, Nanik Bhagia ("Bhagia") is Plaintiffs sole
member. (Instrument No. 1 at 3). Bhagia is a natural person
and Texas citizen. Id. Defendant is a national
banking association organized under federal law. Under its
articles of association, Defendant's main office is
located in South Dakota. Therefore, Defendant is a citizen of
South Dakota for diversity purposes. Id. at 4.
Property was originally purchased by husband and wife,
Lemorris Grover and Wan Grover (the "Grovers"). On
April 27, 2004, in connection with the purchase of the
Property, the Grovers executed a promissory note
("Note") in the principal amount of $85, 495.00
made payable to World Savings Bank, FSB ("World
Savings"). (Instrument No. 32-1). On that same day, the
Grovers executed a deed of trust (the "Deed of
Trust") that granted a security interest in the Property
to secure repayment of the Note (the Note and Deed of Trust,
are collectively referred to herein as the "Grover
Loan"). (Instrument No. 32-2). The Note is due and
payable on May 15, 2034 (the "Maturity Date").
(Instrument No. 32-1 at 2).
about December 31, 2007, World Savings changed its name to
Wachovia Mortgage, FSB ('Wachovia"), and on or about
November 1, 2009, Wachovia converted to a national bank and
subsequently merged into Wells Fargo Bank, N.A. (Instrument
No. 32 at 2; Instrument No. 32-1 at 3). Wells Fargo is the
successor-by-merger to World Savings and Wachovia.
18, 2011, Defendant sent correspondence to the Grovers by
certified mail notifying them, among other things, that the
Grover Loan was in default for failure to make payments due
and that the Maturity Date of the Note would be accelerated
if the default was not timely cured (the "July 2011
Notice of Default"). (Instrument No. 32-1 at 29).
October 4, 2011, via a Deed Under "Fourth" Writ of
Execution, Plaintiff acquired the Property at a
Constable's Sale conducted by the Harris County
Constable. (Instrument No. 22 at 4; Instrument No.
32-2 at 2). However, pursuant to the Deed Under
"Fourth" Writ of Execution, Plaintiff only received
the right, title, interest, and claim that the Grovers had in
the Property. (Instrument No. 32-2 at 3). Therefore,
Plaintiff acquired the Property subject to Defendant's
lien on the Property. Id. ; Tex. Civ. Prac. &
Rem. Code. § 34.05 (Vernon 1986).
October 24, 2011, the Grovers received from Defendant a
Notice of Substitute Trustee's Sale ("Notice of
Sale") informing them that the Property was scheduled
for a December 6, 2001 foreclosure sale. (Instrument No.
19-1). However, the December 6, 2011 scheduled foreclosure
sale of the Property was never consummated. (Instrument No.
32 at 3; Instrument No 32-1 at 3).
January 22, 2015, Defendant sent correspondence to the
Grovers by certified mail notifying them, among other things,
that the Grover Loan was in default for failure to make
payments due and that the Maturity Date would be accelerated
if the default was not timely cured (the "January 2015
Notice of Default").
Amended Complaint, Plaintiff alleges that the loan originally
taken out by the Grovers was accelerated as late as November
2011 and possibly earlier. (Instrument No. 19 at 2).
Plaintiff notes that the Notice of Sale scheduled a
Substitute Trustee's Sale of the Property under the Deed
of Trust to be held on December 6, 2011. (Instrument No. 22
at 4). Plaintiff posits that the Notice of Sale is evidence
that the Grover Loan was in default, and that the Grover Loan
had been accelerated as of October 24, 2011. Plaintiff notes
that under Texas law, a deed of trust must be enforced within
four years from the date of maturity of the note or the deed
of trust is barred by the statute of limitations and is void.
Tex. Civ. Prac. & Rem. Code § 16.035. Plaintiff
reasons that because the Grover Loan was accelerated as of
October 24, 2011, pursuant to §16.035 of the Texas Civil