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Rojas v. Citimortgage, Inc.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

September 14, 2017

MIGUEL ROJAS AND LOURDES ROJAS, Appellants,
v.
CITIMORTGAGE, INC., Appellee.

         On appeal from the 404th District Court of Cameron County, Texas.

          Before Justices Rodriguez, Contreras, and Benavides

          MEMORANDUM OPINION

          NELDA V. RODRIGUEZ Justice

         The trial court granted summary judgment in favor of appellee Citimortgage, Inc. (Citi) and ordered judicial foreclosure of a house owned by appellants Miguel Rojas and Lourdes Rojas. By one issue, which we construe as two, the Rojases argue that summary judgment was erroneously granted because Citi's foreclosure claim was barred by the statute of limitations and because the ruling conflicts with the Texas Constitution's provisions on home-equity loans. Because we find that the Rojases created a fact issue with regard to limitations, we reverse and remand.

         I. Background

         On July 30, 1999, the Rojases obtained a home-equity loan from Associates Financial Services Company of Texas, Inc. (Associates). They executed several documents, including two instruments in which the Rojases promised to repay the loan and pledged their home in Harlingen, Texas as security.[1]

         The summary judgment proof shows that Associates assigned the instruments to Citi. On January 16, 2009, Citi sent a notice of default to the Rojases, in which Citi cautioned the Rojases of acceleration and possible foreclosure. On July 21, 2010, Citi notified the Rojases that it was accelerating the loan, such that the alleged balance of $188, 167.84 was immediately due. The Rojases did not subsequently make any payments on the loan. Citi sent similar notices on May 16, 2011 and again on August 16, 2011, stating that the note had been accelerated and urging the Rojases to pay the full balance of the note.

         On November 6, 2013, Citi sent the Rojases a notice of default. Rather than demanding the accelerated balance, this notice urged the Rojases to pay "the past due amount of $95, 828.51" and stated that the Rojases' failure to "cure the default by 12/11/2013 will result in acceleration of the loan."

         On June 23, 2014, Citi filed suit seeking judicial foreclosure. Citi moved for summary judgment, asserting that it was entitled to judgment as a matter of law. The Rojases responded that Citi's foreclosure action was time-barred because Citi had not served its suit within the statute of limitations.[2]

         On January 20, 2016, the trial court granted summary judgment in favor of Citi on its foreclosure claim. On February 19, 2016, the Rojases filed a motion to reconsider the summary judgment. The motion was overruled by operation of law. The Rojases filed this appeal on May 2, 2016.

         II. Timeliness of Appeal

         As an initial matter, Citi argues that the Rojases' appeal was untimely. We disagree.

         The Rojases filed a motion to reconsider the summary judgment within thirty days after the judgment was signed. A party who wishes to appeal generally must file a notice of appeal within thirty days after the trial court signs its judgment, or within ninety days after the trial court signs its judgment if any party files a timely motion for new trial or a motion to modify the judgment. Tex.R.App.P. 26.1(a). When a party files a motion for reconsideration that seeks reversal or modification of a judgment, we treat it as a motion for new trial or a motion to modify the judgment, pursuant to the appellate rules. See Padilla v. LaFrance, 907 S.W.2d 454, 458 (Tex. 1995) (concluding that an appellant's "motion for reconsideration was the equivalent of a motion to modify the judgment, extending the appellate deadlines"); see also Fox v. Wardy, 318 S.W.3d 449, 451 n.1 (Tex. App.-El Paso 2010, pet. denied) (construing a motion to reconsider as a motion for new trial); Adams v. Ross, No. 01-15-00315-CV, 2016 WL 4128335, at *2 (Tex. App.- Houston [1st Dist.] Aug. 2, 2016, no pet.) (mem. op.) (same). Thus, the Rojases timely filed a constructive motion for new trial, which extended the deadline for the Rojases' notice of appeal to ninety days. See Tex. R. App. P. 26.1(a).

         The Rojases filed their notice of appeal on May 2, 2016, more than ninety days after the judgment was signed. However, a motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1 but within the fifteen-day grace period provided by rule 26.3 for filing a motion for extension of time. Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (per curiam) (citing Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997)); see In re J.Z.P., 484 S.W.3d 924, 925 n.2 (Tex. 2016) (per curiam) ("Filed two days after the deadline, [appellant's] notice of appeal implied a motion for an extension of time.").[3]

         If the notice of appeal is filed within the fifteen-day grace period, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See Hone, 104 S.W.3d at 886. A reasonable explanation is "any plausible statement of circumstances indicating that failure to file within the [specified] period was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance." Id. We apply a permissive standard of review to assess the reasonableness of the ...


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