Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 404th District Court of Cameron County,
Justices Rodriguez, Contreras, and Benavides
V. RODRIGUEZ Justice
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.
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
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.
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."
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
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.
Timeliness of Appeal
initial matter, Citi argues that the Rojases' appeal was
untimely. We disagree.
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).
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.").
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 ...