United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE, SENIOR UNITED STATES DISTRICT JUDGE
Suniverse LLC ("Plaintiff"), sued defendants
Deutsche Bank National Trust Company as Trustee, Select
Portfolio Servicing, and Mortgage Electronic Registration
Systems, Inc. (collectively "Defendants") in the
458th Judicial District Court of Fort Bend County, Texas, to
contest a foreclosure. Defendants timely removed the action
to this court. Pending before the court is
Plaintiff's Application for Emergency Ex Parte Temporary
Restraining Order and Request for Hearing on Preliminary
Injunction ("Plaintiff's Motion") (Docket Entry
No. 23) . For the reasons stated below, Plaintiff's
Motion will be denied.
Factual and Procedural Background
Igboanugo purchased real property ("the Property")
through warranty deed subject to a mortgage loan from New
Century Mortgage Company in October of 2006. The
Defendants are trustees for the mortgagee rights or servicers
for the mortgage. Defendants have noticed the Property for
foreclosure sale for default on the mortgage sixteen times
between October of 2010 and April of 2019.Igboanugo
conveyed the Property to Plaintiff under a trust agreement on
May 24, 2018.
Defendants noticed the Property for sale on June 4, 2019,
Plaintiff brought this action in state court on May 28, 2019,
seeking injunctive and declaratory relief to prevent the
foreclosure and asserting various Texas statutory and common
law claims against Defendants. On May 29, 2019,
Plaintiff obtained an ex parte temporary restraining order
against the sale that expired on June 10, 2019. Defendants
removed the action to this court on the basis of diversity
jurisdiction on June 7, 2019. While the action was
pending, Defendants noticed the Property for foreclosure sale
on November 5, 2019. Plaintiff filed its Plaintiff's
Motion to stay the foreclosure sale on October 28,
2019. Defendant's responded to the
motion on October 30, 2019. Plaintiff filed a
reply on October 31, 2019.
establish entitlement to preliminary injunctive relief
Plaintiff must establish a substantial likelihood that it
will prevail on the merits. Canal Authority of State of
Florida v. Callaway, 489 F.2d 567, 572 (5th
Cir. 1974). Defendants argue Plaintiff has not met this
burden.  To satisfy this element, Plaintiff must
"present a prima facie case but need not show a
certainty of winning." Texas v. United States,
328 F.Supp.3d 662, 710 (S.D. Tex. 2018); 11A Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 2948.3 (3d ed. 2013).
Plaintiff contends it has shown sufficient likelihood of
success on its claim that the foreclosure is barred by the
statute of limitations.
law provides a four-year limitations period for a mortgagee
to exercise a right to foreclose. Tex. Civ. Prac. & Rem.
Code § 16.035 (b) . One circumstance under which the
limitations period begins to run is when the mortgagee
exercises a right to demand full repayment under an optional
acceleration clause. Holy Cross Church of God in Christ
v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001). If the
acceleration is abandoned, the limitations period no longer
applies. Stewart v. U.S. Bank National Ass'n,
107 F.Supp.3d 705, 708 (S.D. Tex. 2015).
argues that Defendants never abandoned the acceleration that
began when Defendants noticed the Property for sale on April
12, 2013, and that the limitations period therefore expired
on April 12, 2017. It is undisputed, however, that
Defendants sent notices of default to Igboanugo on November
27, 2013, and October 3, 2014, which offered an opportunity
to cure the default. Notices with an opportunity to cure
are sufficient to show abandonment of a prior acceleration.
Boren v. U.S. National Bank Ass'n, 807 F.3d 99,
106 (5th Cir. 2015). The April 12, 2013, acceleration was
therefore abandoned, and the four-year limitations does not
also states that Defendants' counsel sent Igboanugo a
letter on March 16, 2015, stating that the debt was in
default, and stating a pay-off amount that was higher than
the original principle. Plaintiff argues that the letter
creates a fact issue as to whether the April 12, 2013,
acceleration was abandoned. But the letter does
not refer to the prior notices of default or acceleration.
Plaintiff cites no authority that the letter negated the
abandonment shown by the 2013 and 2014 notices of default and
opportunity to cure.
Plaintiff's limitations defense fails as a matter of law,
Plaintiff has not shown sufficient likelihood of success on
the merits and is not entitled to injunctive relief. An ex
parte temporary restraining order is not appropriate because
Defendants have responded, and Plaintiff's requested
hearing on a preliminary injunction is not necessary because
no relevant facts are in dispute.
Conclusion and Order
reasons explained above, Plaintiff's Application for
Emergency Ex Parte Temporary Restraining Order and Request
for Hearing on ...