Appeal from the 125th District Harris County, Texas Trial
Court Case No. 2016-88326
consists of Justices Keyes, Lloyd, and Hightower.
Russell Lloyd, Justice
Jimmie Dale Wheeler, appeals the trial court's order
granting summary judgment in favor of appellees, MTGLQ
Investors, L.P. and New Penn Financial, LLC d/b/a Shellpoint
Mortgage Servicing and a take-nothing judgment on
Wheeler's claims for breach of contract and declaratory
and injunctive relief. Wheeler contends that the trial court
erred because (1) the statute of limitations bars MTGLQ's
enforcement of its lien; (2) MTGLQ cannot enforce its lien
because Wheeler did not agree to allow MTGLQ such a right in
the deed of trust; and (3) Texas Practice and Remedies Code
section 16.038 is unconstitutional. We affirm.
a former investment adviser and real estate developer,
obtained a secured loan to purchase property in 1993. After
Wheeler repeatedly failed to repay the loan, JPMorgan Chase
Bank, N.A., the loan servicer at the time, and Wheeler
entered into two forbearance agreements-in August 2005 and
November 2007- and two modification agreements-in October
2006 and December 2010-to allow Wheeler to cure his defaults.
The 2010 modification agreement extended the loan's
maturity date to November 1, 2050.
the 2010 modification agreement, Wheeler made five payments
but did not make a payment in May 2011 or any payment
thereafter. After Wheeler defaulted on the modified loan,
Chase sent him written notice of his default on December 7,
2011, informing him that if he failed to cure his default
Chase would accelerate his loan. Wheeler did not cure his
default and Chase's foreclosure counsel, Barrett Daffin,
sent Wheeler notices of acceleration dated May 2, 2011 and
June 20, 2011. The acceleration notices also advised Wheeler
that the substitute trustee would foreclose on the property
on June 7 and August 2, 2011, respectively.
did not foreclose on the property on June 7 or August 2,
2011. On January 19, 2012, Daffin sent notice to Wheeler that
Chase rescinded "the notice of acceleration dated
6/20/11 and all prior notices of acceleration." After
Wheeler did not bring his loan current following the
deceleration, Daffin sent Wheeler a notice of acceleration,
advising him that the substitute trustee would foreclose on
the property on February 5, 2013. On February 4, 2013,
Wheeler sued Chase and obtained a temporary restraining order
to prevent foreclosure.
trial court subsequently dismissed Wheeler's suit. Daffin
sent Wheeler a notice of acceleration dated September 11,
2014, advising him that the substitute trustee would sell the
property on October 7, 2014. On November 20, 2014, Daffin
sent another notice of acceleration to Wheeler, advising him
that the trustee would sell the property at a foreclosure
sale on January 6, 2015. Wheeler again sued Chase and
obtained a temporary restraining order to prevent foreclosure
on January 5, 2015.
trial court dismissed Wheeler's second suit. Two months
later, and after Chase did not proceed with the foreclosure
sale, Chase's counsel sent Wheeler notice dated May 13,
2015, advising him that Chase "rescinds and abandons any
acceleration of the Note or any other debt secured by the
Deed of Trust made by [Chase] or by its servicer(s) prior to
the date of execution of this document."
subsequently transferred servicing of Wheeler's loan to
Shellpoint, effective February 1, 2016. On May 9, 2016,
Shellpoint, as the servicer for MTGLQ, sent a notice to
Wheeler advising him that his loan was in default and that,
if he failed to cure his default within forty-five days,
Shellpoint would accelerate the loan. Wheeler did not cure
his default. On November 23, 2016, Shellpoint accelerated the
loan, advising Wheeler that the foreclosure sale would take
place on January 3, 2017.
December 28, 2016, Wheeler filed the instant suit
"seek[ing] to stop the pending foreclosure of his
homestead." He alleged that a pending foreclosure sale
was "in breach of contract" and that the four-year
statute of limitations prevented MTGLQ from "enforc[ing]
the lien and power of sale in the Deed of Trust."
Wheeler sought temporary injunctive relief "blocking all
aspects of the foreclosure process during the pendency of
[the] case" and a declaratory judgment that "the
lien and power of sale in the Deed of Trust have
expired" and "MTGLQ has no legal interest in the
property." Wheeler also requested "his costs and
reasonable and necessary attorney fees under Section
37.009" of the Civil Practice and Remedies Code. On
December 29, 2016, the court entered another temporary
restraining order preventing Shellpoint and MTGLQ from
proceeding with foreclosure. The order included the following
handwritten notation: "This is Plaintiff's third
suit to block foreclosure on this property." On January
27, 2017, Shellpoint and MTGLQ filed their answer.
March 21, 2018, MTGLQ and Shellpoint moved for traditional
summary judgment on the grounds that limitations did not bar
enforcement of the lien on Wheeler's property or sale of
the property and MTGLQ did not breach any contract. On March
23, 2018, Wheeler moved for summary judgment on the basis
that "the lien against his homestead had expired as a
matter of law." On April 9, 2018, MTGLQ and Shellpoint
filed their response to Wheeler's summary judgment
motion. On July 14, 2018, Wheeler filed his reply to MTGLQ
and Shellpoint's summary judgment response and his
response to their summary judgment motion.
17, 2018, the trial court entered an order (1) granting MTGLQ
and Shellpoint's motion for summary judgment; (2) denying
Wheeler's motion for summary judgment; and (3) awarding
MTGLQ and Shellpoint a take-nothing judgment on Wheeler's
affirmative claims for relief against them.
August 14, 2018, Wheeler moved for rehearing and a new trial.
The trial court denied Wheeler's motions on ...