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
MEMORANDUM OPINION ON REHEARING
Seth Rivera appeals the trial court's judgment, following
a bench trial, in favor of appellee Baptist Foundation of
Texas (Baptist Foundation). 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. On or about April 23, 2008, Verbeek's attorney sent
Rivera a "Demand for Payment" which included an
optional acceleration clause. Verbeek did not foreclose on
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, which the trial court denied. See Tex.
Civ. Prac. & Rem. Code Ann. § 16.035(a). On
September 18, 2017, the trial court held a bench trial and
determined that the "Demand for Payment" was not an
acceleration letter and therefore the statute of limitations
had not run. The trial court entered a final judgment in
favor of Baptist Foundation on October 4, 2017, and this
sole issue, Rivera argues the trial court erred by ruling as
a matter of law that the statute of limitations had not run
for the collection and foreclosure of the
Standard of Review
is an affirmative defense, which Rivera bore the burden to
prove. See Tex. R. Civ. P. 94; Woods v. William
M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988).
"When a party attacks the legal sufficiency of an
adverse finding on an issue on which she has the burden of
proof, she must demonstrate on appeal that the evidence
establishes, as a matter of law, all vital facts in support
of the issue." Dow Chem. Co. v. Francis, 46
S.W.3d 237, 241 (Tex. 2001) (per curiam). In other words, the
appellant must show that there is no evidence to support the
finding and the evidence conclusively establishes the
opposite of the finding. Id. We first examine the
record for any evidence supporting the finding while ignoring
all evidence to the contrary. Id. If no evidence
supports the finding, then we review the entire record to
determine whether the contrary proposition is established as
a matter of law. Id. When examining a legal
sufficiency challenge, we review the evidence in the light
most favorable to the challenged finding and indulge every
reasonable inference that would support it. City of
Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We
credit favorable evidence if a reasonable fact finder could
and disregard contrary evidence unless a reasonable fact
finder could not. Id. at 827.
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). "While accrual is a legal
question, whether a lender has accelerated a note is a fact
question." Holy Cross Church of God in Christ v.
Wolf, 44 S.W.3d 562, 568 (Tex. 2001). If a note contains
an optional acceleration clause, defaulting on the note does
not automatically begin the statute of limitations.
Id. at 566. Rather, the statute of limitations does
not start to run until the lender of the note actually
exercises its option to accelerate. Id.
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 (Tex. 1991)).
The lender must exercise its option to accelerate "by
sending both a notice of intent to accelerate and a notice of
acceleration." Id. "If the default has not
been cured by the deadline established in the notice, the
lender must then give notice of acceleration." Karam
v. Brown, 407 S.W.3d 464, 470 (Tex. App-El Paso 2013, no
pet.). "So long as it is preceded by the required notice