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Grady v. Nationstar Mortgage, LLC

Court of Appeals of Texas, Second District, Fort Worth

November 22, 2017

LAURIE B. GRADY APPELLANT
v.
NATIONSTAR MORTGAGE, LLC, AND U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2006-BC5 APPELLEES

         FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 236-280114-15.

          PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ.

          MEMORANDUM OPINION [1]

          ELIZABETH KERR, JUSTICE

         After Appellant Laurie B. Grady defaulted on her home-equity loan, the noteholder, Appellee U.S. Bank National Association, as Trustee for Specialty Underwriting and Residential Finance Trust Mortgage Loan Asset-Backed Certificates, Series 2006-BC5, successfully sued for an order allowing it to foreclose on its lien. Grady then sued U.S. Bank and the current loan servicer, Appellee Nationstar Mortgage, LLC, alleging that the lien was unenforceable. The trial court granted U.S. Bank and Nationstar's summary-judgment motion, and Grady has appealed. We will affirm.

         Background

         In July 2006, Grady executed a "Texas Home Equity Security Instrument" in National City Mortgage's favor to secure the repayment of a "Texas Home Equity Note" in the original principal amount of $135, 200. Grady defaulted, and on August 9, 2010, the then-current loan servicer wrote her that the loan was in default and that she had to pay $33, 070.56 to cure the default. The letter also stated that if the default was not cured before September 8, 2010, the note would be accelerated and foreclosure proceedings would begin.

         Grady failed to cure, and in 2014 U.S. Bank filed for a home-equity-foreclosure order in the 342nd District Court.[2] See Tex. R. Civ. P. 735, 736. In June 2015, that court signed an order allowing U.S. Bank to foreclose on its lien. The trustee's sale was noticed for August 4, 2015.

          But the day before the foreclosure sale, Grady sued U.S. Bank and Nationstar in the 236th District Court, alleging that because the note was accelerated in 2007, the four-year statute of limitations in civil practices and remedies code section 16.035 barred U.S. Bank and Nationstar from enforcing the lien.[3] See Tex. Civ. Prac. & Rem. Code Ann. § 16.035 (West 2002). She pleaded claims for breach of contract and for violations of the property code and the Texas Debt Collection Act. In addition to damages and attorney's fees, Grady sought-

. an order quieting title to the property;
. a declaration that U.S. Bank's and Nationstar's actions violated the debt-collection act;
. a declaration that limitations bars enforcement of the lien;
. an injunction prohibiting U.S. Bank and Nationstar from violating the debt-collection act; and
. an injunction preventing any foreclosure or forcible-detainer proceedings or any other action interfering with Grady's use or possession of the property.

         U.S. Bank and Nationstar moved for no-evidence summary judgment and for judgment as a matter of law. Grady filed a response, but the trial court granted U.S. Bank and Nationstar's motion without specifying the grounds for its ruling and dismissed Grady's claims with prejudice. Grady has appealed, raising two issues: (1) the trial court erred by granting summary judgment because limitations bars any attempted foreclosure of the claimed lien, and (2) the trial court erred by granting ...


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