Court of Appeals of Texas, Second District, Fort Worth
THE 236TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
KERR, PITTMAN, and BIRDWELL, JJ.
MEMORANDUM OPINION 
T. PITTMAN JUSTICE
Rick Emmert appeals from the trial court's judgment of
foreclosure. After Emmert defaulted on a note secured by a
deed of trust on his home, the noteholder, Appellee
Wilmington Savings Fund Society, FSB, D/B/A Christiana Trust
(Wilmington), Not in Its Individual Capacity but Solely as
Indenture Trustee for ARLP Securitization Trust, Series
2015-1 (ARLP),  brought an action for judicial
foreclosure. The trial court granted summary judgment for the
Lender and rendered a judgment of foreclosure. In two issues,
Emmert argues that the trial court erred by granting judgment
for the Lender because the action was barred by limitations
and because the Lender failed to accelerate the note. We
2008, Emmert borrowed $600, 000 from the Lender under a home
equity loan. See Tex. Const. art. XVI, §
50(a)(6). The note was secured by a deed of trust.
September 14, 2010, a law firm representing the Lender sent
Emmert a notice of default and intent to accelerate. Then, on
February 24, 2011, the law firm sent Emmert a notice that the
Lender had accelerated the maturity of the debt.
Lender filed this action for judicial foreclosure on June 4,
2014. It subsequently filed a motion for summary judgment, to
which it attached as evidence the note, the deed of trust,
the September 14, 2010 notice of default and intent to
accelerate, and the February 24, 2011 notice of acceleration,
along with a business records affidavit from the Lender's
filed a response asserting the defense of limitations. Emmert
argued that there was, at the least, a fact issue about
whether the true acceleration notice for limitation purposes
was the February 24, 2011 notice of acceleration relied on by
the Lender or a previous, February 12, 2010 notice of
trial court granted summary judgment for the Lender. However,
the deed of trust had been assigned during the pendency of
the suit, and the trial court vacated the judgment at the
Lender's request so that it could substitute the correct
noteholder plaintiff. The trial court granted the
Lender's motion to substitute the plaintiff, and the
Lender filed an amended motion for summary judgment relying
on the same evidence. The trial court again granted the
motion and signed an order of judicial foreclosure. Emmert
Standard of Review
review a summary judgment de novo. Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider
the evidence presented in the light most favorable to the
nonmovant, crediting evidence favorable to the nonmovant if
reasonable jurors could, and disregarding evidence contrary
to the nonmovant unless reasonable jurors could not. Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable
inference and resolve any doubts in the nonmovant's
favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399
(Tex. 2008). A defendant who conclusively negates at least
one essential element of a cause of action is entitled to
summary judgment on that claim. Frost Nat'l Bank v.
Fernandez, 315 S.W.3d 494, 508 (Tex. 2010), cert.
denied, 562 U.S. 1180 (2011); see Tex. R. Civ.
P. 166a(b), (c).
raises two issues challenging the summary judgment for the
Lender. His first issue argues that the Lender's suit is
barred by the statute of limitations applicable to
foreclosure actions. His second issue argues that the