GORDON M. SWOBODA, Appellant
OCWEN LOAN SERVICING, LLC; AND U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, Appellees
Appeal from the 11th District Court Harris County, Texas
Trial Court Cause No. 2013-57888
consists of Justices Christopher, Jewell, and Hassan.
main question in this appeal is whether a home-foreclosure
action is barred by the statute of limitations. The borrower
moved for summary judgment in the court below, arguing that
the foreclosure action was untimely because it was filed more
than four years after the lender accelerated the maturity
date of the note. The lender filed a cross-motion for summary
judgment, arguing that its action was timely because the
prior acceleration had been abandoned. The trial court denied
the borrower's motion and granted the lender's
cross-motion. Because we conclude that neither movant
established that it was entitled to judgment as a matter of
law, we reverse the trial court's judgment and remand the
case for additional proceedings consistent with this opinion.
borrower in this case is Gordon Swoboda, who in 2006 executed
a thirty-year home equity note in the principal amount of
$228, 000. That note is secured by a deed of trust, which was
made for the benefit of the lender and all of its successors
and assigns. The current assignee of the deed of trust is
U.S. Bank National Association, and the current servicer of
the loan is Ocwen Loan Servicing, LLC. For ease of reference,
we identify these entities and all of their predecessors as
missed his monthly installment payment in April of 2008, and
all payments thereafter. His default triggered a protracted
history of litigation, which we condense into the following
• July 22, 2008-The Bank sends its first notice of
acceleration, after having previously notified Swoboda of its
intent to accelerate.
• August 22, 2008-The Bank files its first foreclosure
petition in state court under Rule 736 of the Texas Rules of
Civil Procedure. This petition is subsequently dismissed for
want of prosecution.
• July 9, 2009-The Bank sends its second notice of
• July 27, 2009-The Bank files its second foreclosure
petition under Rule 736. This petition is also dismissed
subsequently for want of prosecution.
• June 6, 2011-The Bank files its third foreclosure
petition under Rule 736. The Bank subsequently nonsuits this
• January 28, 2013-The Bank sends its third notice of
• May 6, 2013-The Bank files its fourth foreclosure
petition under Rule 736. Swoboda responds by filing an
original petition in a separate cause number, seeking a stay
and dismissal of the foreclosure action, as well as other
forms of relief. The Bank removes that action to federal
court because of diversity jurisdiction. The case stays there
for nearly three years, until the federal court remands it
back to state court after concluding that the Bank had not
established complete diversity between the parties.
back in state court, the parties filed the two motions for
summary judgment that are the subject of this appeal. Swoboda
argued, among other points in his motion, that the Bank's
latest foreclosure action, which began in 2013, was barred by
the four-year statute of limitations because the action
accrued nearly five years earlier with the 2008 notice of
acceleration. The Bank argued in its cross-motion that its
action was not time-barred because the Bank abandoned the
acceleration through a series of events, which are discussed
in greater detail below. The trial court denied Swoboda's
motion, granted the Bank's cross-motion, and rendered a
final judgment declaring that the lien on Swoboda's
property is foreclosed.
now appeals from that final judgment.
as here, both parties move for summary judgment and the trial
court grants one motion and denies the other, we consider all
questions presented, examine all of the evidence, and render
the judgment the trial court should have rendered. See
Commr's Court of Titus Cnty. v. Agan, 940 S.W.2d 77,
81 (Tex. 1997).
review motions for summary judgment de novo. See Boerjan
v. Rodriguez, 436 S.W.3d 307, 310 (Tex. 2014) (per
curiam). To prevail on a traditional motion for summary
judgment, the movant must show that there is no genuine issue
as to any material fact and that the movant is entitled to
judgment as a matter of law. See Tex. R. Civ. P.
166a(c); M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). If
the movant produces evidence that conclusively establishes
its right to summary judgment, then the burden of proof
shifts to the nonmovant to present evidence sufficient to
raise a fact issue. See Centeq Realty, Inc. v.
Siegler, 899 S.W.2d 195, 197 (Tex. 1995). When deciding
whether a fact issue has been raised, we consider all of the
evidence in the light most favorable to the nonmovant,
indulging every reasonable inference and resolving any doubts
in the nonmovant's favor. See Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
OF LIMITATIONS AND ABANDONMENT OF ACCELERATION
lender must bring suit to foreclose on a real property lien
"not later than four years after the day the cause of
action accrues." See Tex. Civ. Prac. & Rem.
Code § 16.035(a). As a general rule, the accrual date is
the maturity date of the note, rather than the earlier date
of the borrower's default. Id. § 16.035(e).
But there is an exception to that rule: If the real property
lien contains an optional acceleration clause, as the deed of
trust does here, then the cause of action accrues when the
lender exercises its option to accelerate the maturity date
of the note. See Holy Cross Church of God in Christ v.
Wolf, 44 S.W.3d 562, 566 (Tex. 2001).
lender has accelerated the maturity date of the note, the
lender can restore the original maturity date-and therefore
reset the running of limitations- by abandoning the
acceleration as though it had never happened. Id. at
566-67. Abandonment is based on the concept of waiver, which
requires the showing of three elements: (1) the party has an
existing right; (2) the party has actual knowledge of the
right; and (3) the party actually intends to relinquish the
right, or engages in intentional conduct inconsistent with
the right. See Ulico Cas. Co. v. Allied Pilots
Ass'n, 262 S.W.3d 773, 778 (Tex. ...