United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION GRANTING THE DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
Rosenthal Chief United States District Judge
Bank National Trust Company and Ocwen Loan Servicing, LLC,
jointly move for summary judgment, arguing that the statute
of limitations on their right to foreclose on the
plaintiffs' property has not expired and that all other
requirements for foreclosure are met, precluding the
homeowners' claims. (Docket Entry No. 9). For the reasons
stated below, the motion is granted and this case is
dismissed with prejudice. Final judgment is entered by
September 2005, Teresa Eason, at the time Teresa McGrew,
financed a home purchase in Houston, Texas by signing an
Adjustable Rate Note for $132, 000 payable to Decision One
Mortgage Company, LLC. (Docket Entry No. 9-1 at 7). The same
day, Teresa Eason and her husband, Valton Eason, signed a
Deed of Trust granting a security interest in the property to
secure repayment on the Note. (Docket Entry No. 9-1 at 12).
In June 2011, the Note transferred to the current holder,
Deutsche Bank. (Docket Entry No. 9-1 at 44). Ocwen currently
services the loan. (Docket Entry No. 9-1 at 32).
the Easons failed to make their monthly mortgage payments and
defaulted on the mortgage loan, the property was sold at a
foreclosure sale in August 2011. (Docket Entry No. 9-1 at
48). That sale was rescinded on June 11, 2013. (Docket Entry
No. 9-1 at 57-58). The rescission of the sale restored title
to the Easons. Two years later, in June 2015, Ocwen, on
behalf of Deutsche Bank, sent the Easons a new Notice of
Default and Intent to Accelerate, notifying them that they
were behind in their mortgage payments and were in default.
(Docket Entry No. 9-1 at 32). The notice provided the Easons
the opportunity to cure the default by paying the full amount
due, $83, 174.89, within 30 days. (Id.). The notice
warned that failing to pay the amount due within 30 days
would result in acceleration of the Note's maturity date,
making the full principal plus accrued interest immediately
due and payable. (Id.). The Easons did not pay.
September 2015, Ocwen sent another notice on behalf of
Deutsche Bank, notifying the Easons that the maturity date
had been accelerated and the full unpaid principal, plus
interest, was due and payable effective immediately. (Docket
Entry No. 9-1 at 35). The notice stated that the property
would be listed at a foreclosure sale on October 6, 2015.
Easons sued in state court for an injunction preventing the
foreclosure in November 2017, alleging that the four-year
statute of limitations to foreclose on the property had
expired because the loan had been accelerated in 2011, six
years before, but Deutsche Bank had not foreclosed at that
time. The Easons also sought damages. (Docket Entry No. 1).
Deutsche Bank timely removed. At the initial pretrial
conference in this court in April 2018, the court ordered the
parties to exchange relevant documents, allowed one
deposition for each party, and set a deadline for any motion
to dismiss or motion for summary judgment. (Docket Entry No.
8). The Easons neither provided documents to the defendants
nor filed a motion. Deutsche Bank and Ocwen provided their
documents and moved for summary judgment. (Docket Entry No.
9). The Easons did not respond.
The Legal Standard
judgment is appropriate only if ‘there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.'” Vann v. City of
Southaven, Miss., 884 F.3d 307, 309 (5th Cir. 2018)
(citations omitted); see also Fed. R. Civ. P. 56(a).
“A genuine dispute of material fact exists when the
‘evidence is such that a reasonable jury could return a
verdict for the nonmoving party.'” Burrell v.
Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir.
2016) (quoting Anderson v. Liberty Lobby, 477 U.S.
242, 248 (1986)). “The moving party ‘bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.'” Brandon v.
Sage Corp., 808 F.3d 266, 269-70 (5th Cir. 2015)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
the non-movant bears the burden of proof at trial, ‘the
movant may merely point to the absence of evidence and
thereby shift to the non-movant the burden of demonstrating .
. . that there is an issue of material fact warranting
trial.'” Kim v. Hospira, Inc., 709 Fed.
App'x 287, 288 (5th Cir. 2018) (quoting Nola Spice
Designs, L.L.C. v. Haydel Enters., Inc., 783
F.3d 527, 536 (5th Cir. 2015)). While the party moving for
summary judgment must demonstrate the absence of a genuine
issue of material fact, it does not need to negate the
elements of the nonmovant's case. Austin v. Kroger
Tex., L.P., 864 F.3d 326, 335 (5th Cir. 2017) (quoting
Little v. Liquid Air Corp., 37 F.3d 1069, 1076 n.16
(5th Cir. 1994)). A fact is material if “its resolution
could affect the outcome of the actions.” Aly v.
City of Lake Jackson, 605 Fed. App'x 260, 262 (5th
Cir. 2015) (citing Burrell v. Dr. Pepper/Seven UP
Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007)).
“If the moving party fails to meet [its] initial
burden, the motion [for summary judgment] must be denied,
regardless of the nonmovant's response.”
Pioneer Exploration, LLC v. Steadfast Ins. Co., 767
F.3d 503 (5th Cir. 2014).
the moving party has met its Rule 56(c) burden, the nonmoving
party cannot survive a summary judgment motion by resting on
the mere allegations of its pleadings.” Bailey v.
E. Baton Rouge Par. Prison, 663 Fed. App'x 328, 331
(5th Cir. 2016) (quoting Duffie v. United States,
600 F.3d 362, 371 (5th Cir. 2010)). The nonmovant must
identify specific evidence in the record and articulate how
that evidence supports that party's claim. Willis v.
Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014).
“This burden will not be satisfied by ‘some
metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.'” Jurach v. Safety
Vision, LLC, 642 Fed. App'x 313, 317 (5th Cir. 2016)
(quoting Boudreaux v. Swift Transp. Co., 402 F.3d
536, 540 (5th Cir. 2005)). In deciding a summary judgment
motion, the court draws all reasonable inferences in the
light most favorable to the nonmoving party. Darden v.
City of Fort Worth, 866 F.3d 698, 702 (5th Cir. 2017).
parties agree that the limitations period is four years from
the day the claim accrues. Tex. Civ. Prac. & Rem. Code
§ 16.035(a). Generally, the limitations period does not
begin to run until the maturity date of a loan. Holy
Cross Church of God in Christ v. Wolf, 44 S.W.3d 562,
566 (Tex. 2001). When a loan contains an optional
acceleration clause, the claim accrues when the noteholder
exercises its option to accelerate. Id. Acceleration
requires a clear and unequivocal notice of intent to
accelerate and of acceleration. Id. Deutsche Bank
and Ocwen accelerated the loan and sent the Easons notice in
2011. The dispute is whether a rescission of that
acceleration prevented the four-year limitations period from
expiring in 2015.
acceleration of a note can be abandoned ‘by agreement
or other action of the parties.'” Boren v. U.S.
Nat'l Bank Ass'n, 807 F.3d 99, 104 (5th Cir.
2015) (citing Khan v. GBAK Props., 371 S.W.3d 347,
353 (Tex. App.-Houston [1st Dist.] 2012, no pet.)).
“Abandonment of acceleration has the effect of
restoring the contract to its original conditions, thereby
restoring the note's original maturity date for purposes
of accrual.” Id. (quoting Khan, 371
S.W.3d at 353). Texas law frames abandonment of a prior
acceleration in waiver terms. Id. at 105. “A
lender waives its earlier acceleration when it ‘put[s]
the debtor on notice of its abandonment . . . by requesting
payment on less than the full amount of the loan.'”
Id. at 106 (quoting Leonard v. Ocwen Loan
Servicing, L.L.C., 616 Fed. App'x 677 (5th Cir.
2015)) (a second notice of default informing the plaintiffs
that the total payment required to bring their loan current
was the past-due amount manifested an unequivocal intent to
abandon the prior acceleration). “A plain example of
waiver is where the lender ‘put[s] the debtor on notice
of its abandonment . . . by requesting payment on less than
the full amount of the loan.'” DeFranceschi v.
Seterus, Inc., No. 17-11151, 2018 U.S. App. LEXIS 10633,
at *5 (5th Cir. Apr. 26, 2018) (quoting Boren, 807
F.3d at 106) (a notice of default and a request for payment
of less than the full loan ...