Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 404th District Court of Cameron County,
Chief Justice Contreras and Justices Benavides and
Seth Rivera appeals the trial court's denial of his
motion for summary judgment. By his sole issue, Rivera
contends the trial court erred in ruling that the statute of
limitations period had not run for the collection and
foreclosure of real estate. We affirm.
purchased real property from the Verbeek family in 1999. He
made monthly lien note payments pursuant to the terms of
their agreement. Rivera made his last payment on December 14,
2007 and was subsequently delinquent on his payments. On or
about April 23, 2008, Verbeek's attorney sent Rivera a
"Demand for Payment" which referenced the
note's optional acceleration clause (2008 demand).
Verbeek did not foreclose on the lien.
appellee Baptist Foundation of Texas (Baptist Foundation)
inherited Verbeek's interest in the property. On or about
February 9, 2016, Baptist Foundation sent Rivera a notice of
foreclosure and notice of substitute trustee sale for the
property. Rivera sued Baptist Foundation, seeking to enjoin
Baptist Foundation from foreclosing. Baptist Foundation
answered and filed a counterclaim. Rivera filed a motion for
summary judgment arguing that because demand for payment was
made in April 2008, the applicable four-year statute of
limitations barred Baptist Foundation from foreclosing on the
property eight years later. See Tex. Civ. Prac.
& Rem. Code Ann. § 16.035(a). Following a hearing,
the trial court denied Rivera's motion, and after a bench
trial, it rendered judgment in favor of Baptist Foundation.
This appeal followed.
first issue, Rivera challenges the trial court's denial
of his motion for summary judgment.
Standard of Review
review de novo a trial court's ruling on a summary
judgment motion. Wells Fargo Bank, N.A. v.
Ballestas, 355 S.W.3d 187, 191 (Tex. App.-Houston [1st
Dist.] 2011, no pet.). To succeed on a summary judgment
motion under Texas Rule of Civil Procedure 166a(c), a movant
must establish that there is no genuine issue of material
fact so that the movant is entitled to judgment as a matter
of law. See Tex. R. Civ. P. 166a(c); Wells
Fargo, 355 S.W.3d at 191. A plaintiff moving for summary
judgment on its affirmative claims must conclusively prove
all elements of its cause of action or defense as a matter of
law. Tex.R.Civ.P. 166a(c); Holy Cross Church of God in
Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001). To
conclusively establish a matter, the movant must show that
reasonable minds could not differ as to the conclusion to be
drawn from the evidence. City of Keller v. Wilson,
168 S.W.3d 802, 814 (Tex. 2005). The evidence is reviewed in
the light most favorable to the non-movant, crediting
favorable evidence if reasonable jurors could and
disregarding contrary evidence unless reasonable jurors could
not. Wells Fargo, 355 S.W.3d at 191.
foreclosure suit must be filed within four years after the
cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann.
§ 16.035(a). A cause of action for foreclosure does not
accrue "until the maturity date of the last note,
obligation, or installment." Id. §
16.035(e). "On the expiration of the four-year
limitations period, the real property lien and a power of
sale to enforce the real property lien become void."
Id. § 16.035(d). If a note contains an optional
acceleration clause, defaulting on the note does not
automatically begin the statute of limitations. Holy
Cross, 44 S.W.3d at 566. Rather, the statute of
limitations does not start to run until the holder of the
note actually exercises its option to accelerate.
Id. "Effective acceleration requires two acts:
(1) notice of intent to accelerate, and (2) notice of
acceleration." Id. Each notice must be
"clear and unequivocal." Id. (quoting
Shumway v. Horizon Credit Corp., 801 S.W.2d 890, 893