Date: 11-23-2017

Case Style:

Case Number: 02-16-00481-CV

Judge: Elizabeth Kerr

Court: Texas Court of Appeals, Second District on appeal from the 236th District Court of Tarrant County

Plaintiff's Attorney: Daron L. Janis and Kurt M. Wolber for Nationstar Mortgage, LLC

Kurt M. Wolber and Daron L. Janis for U.S. Bank National Association

Defendant's Attorney: Mike Brinkley

Description: After Appellant Laurie B. Grady defaulted on her home-equity loan, the
noteholder, Appellee U.S. Bank National Association, as Trustee for Specialty
Underwriting and Residential Finance Trust Mortgage Loan Asset-Backed
Certificates, Series 2006-BC5, successfully sued for an order allowing it to
foreclose on its lien. Grady then sued U.S. Bank and the current loan servicer,
Appellee Nationstar Mortgage, LLC, alleging that the lien was unenforceable.
The trial court granted U.S. Bank and Nationstar’s summary-judgment motion,
and Grady has appealed. We will affirm.
Background
In July 2006, Grady executed a “Texas Home Equity Security Instrument”
in National City Mortgage’s favor to secure the repayment of a “Texas Home
Equity Note” in the original principal amount of $135,200. Grady defaulted, and
on August 9, 2010, the then-current loan servicer wrote her that the loan was in
default and that she had to pay $33,070.56 to cure the default. The letter also
stated that if the default was not cured before September 8, 2010, the note would
be accelerated and foreclosure proceedings would begin.
Grady failed to cure, and in 2014 U.S. Bank filed for a home-equityforeclosure
order in the 342nd District Court.2 See Tex. R. Civ. P. 735, 736. In
June 2015, that court signed an order allowing U.S. Bank to foreclose on its lien.
The trustee’s sale was noticed for August 4, 2015.
2A lien securing repayment of a home-equity note may only be foreclosed
upon by a court order. See Tex. Const. art. XVI, § 50(a)(6)(D).
3
But the day before the foreclosure sale, Grady sued U.S. Bank and
Nationstar in the 236th District Court, alleging that because the note was
accelerated in 2007, the four-year statute of limitations in civil practices and
remedies code section 16.035 barred U.S. Bank and Nationstar from enforcing
the lien.3 See Tex. Civ. Prac. & Rem. Code Ann. § 16.035 (West 2002). She
pleaded claims for breach of contract and for violations of the property code and
the Texas Debt Collection Act. In addition to damages and attorney’s fees, Grady
sought—
 an order quieting title to the property;
 a declaration that U.S. Bank’s and Nationstar’s actions violated the debtcollection
act;
 a declaration that limitations bars enforcement of the lien;
 an injunction prohibiting U.S. Bank and Nationstar from violating the debtcollection
act; and
 an injunction preventing any foreclosure or forcible-detainer proceedings or
any other action interfering with Grady’s use or possession of the property.
U.S. Bank and Nationstar moved for no-evidence summary judgment and
for judgment as a matter of law. Grady filed a response, but the trial court
granted U.S. Bank and Nationstar’s motion without specifying the grounds for its
ruling and dismissed Grady’s claims with prejudice. Grady has appealed, raising
two issues: (1) the trial court erred by granting summary judgment because
3Grady’s suit automatically stayed the foreclosure sale. See Tex. R. Civ. P.
736.11(a).
4
limitations bars any attempted foreclosure of the claimed lien, and (2) the trial
court erred by granting summary judgment because the summary-judgment
evidence raises a fact issue concerning limitations on at least one element of
each of her claims.
Discussion
Grady bases her claims on the theory that the four-year limitations period
in civil practices and remedies code section 16.035 bars U.S. Bank and
Nationstar from enforcing the lien.4 See id. § 16.035(a), (b), (d). In their
summary-judgment motion, U.S. Bank and Nationstar asserted that because
there was no evidence of acceleration—which would indeed have started the
four-year clock running under section 16.035—limitations did not bar
enforcement of the lien. They also argued that even if the loan was accelerated
in 2007, acceleration had been abandoned as a matter of law when the parties
entered into forbearance agreements in October 2008 and May 2009.
Because U.S. Bank and Nationstar moved for summary judgment under
both rules 166a(c) and 166a(i), we will first review the trial court’s judgment under
4Limitations was only one of the three bases for Grady’s debt-collection-act
claims, and her property-code claim was not based on limitations. But on appeal,
she presents no issue or argument challenging the summary judgment on her
nonlimitations-based debt-collection-act claims or her property-code claim. She
has thus waived any challenge to the summary judgment on these claims. See
Jacobs v. Satterwhite, 65 S.W.3d 653, 655–56 (Tex. 2001) (holding that court of
appeals erred in reversing summary judgment on a particular claim when
appellant did not challenge summary judgment on that claim); Riston v. Doe,
161 S.W.3d 525, 527 n.4 (Tex. App.—Houston [14th Dist.] 2004, pet. denied)
(refusing to consider particular claim when appellant did not challenge summary
judgment on that claim).
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rule 166a(i) standards. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598,
600 (Tex. 2004). If Grady failed to produce more than a scintilla of evidence
under that standard, we need not analyze whether U.S. Bank and Nationstar’s
summary-judgment proof satisfied their rule 166a(c) burden. See id.
Standard of Review
Under rule 166a(i), after an adequate time for discovery, the party without
the burden of proof may, without presenting evidence, move for summary
judgment on the ground that there is no evidence to support an essential element
of the nonmovant’s claim. Tex. R. Civ. P. 166a(i). The motion must specifically
state the element (or elements) for which there is no evidence. Id.; Timpte Indus.,
Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must grant the
motion unless the nonmovant produces summary-judgment evidence that raises
a genuine issue of material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v.
Wilson, 249 S.W.3d 425, 426 (Tex. 2008).
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan,
199 S.W.3d 291, 292 (Tex. 2006). We look for evidence that would enable
reasonable and fair-minded jurors to differ in their conclusions. Hamilton,
249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.
2005)). In the course of this review, we credit evidence favorable to the
nonmovant if reasonable jurors could, and we disregard evidence contrary to the
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nonmovant unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at
310 (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If
the nonmovant brings forward more than a scintilla of probative evidence that
raises a genuine issue of material fact, then a no-evidence summary judgment is
improper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch,
Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S.
1030 (2004).
Limitations and Accrual
Under Texas law, a suit to foreclose a real-property lien or a real-property
foreclosure sale according to a power of sale in a deed of trust that creates a
real-property lien must occur no later than four years after the day the cause of
action accrues. Tex. Civ. Prac. & Rem. Code Ann. § 16.035(a), (b). When this
four-year period expires, both the real-property lien and the power of sale to
enforce that lien become void. Id. § 16.035(d).
If a note secured by a real-property lien is payable in installments,
limitations does not begin to run until the maturity date of the last installment. Id.
§ 16.035(e). Here, Grady defaulted before the note’s August 1, 2036 maturity
date, but that default did not start limitations running. See Holy Cross Church of
God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001). That is because when, as
here, a note or deed of trust secured by real property contains an optional
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acceleration clause,5 the cause of action “accrues only when the holder actually
exercises its option to accelerate.” Id. Acceleration in that circumstance is a twostep
process requiring a clear and unequivocal notice of intent to accelerate
followed by a clear and unequivocal notice of acceleration. Id.
Analysis
In their summary-judgment motion, U.S. Bank and Nationstar argued
generally that no evidence existed to show that the note was accelerated in
2007 and specifically that no evidence existed that the then-lienholder sent
Grady a notice of intent to accelerate or a notice of acceleration. Grady
responded that because the note was accelerated in 2007, 2008, and 2010,
limitations had expired, and the lien was thus unenforceable. In support, Grady
attached the following summary-judgment evidence: (1) the August 2010 default notice
letter, (2) an undated monthly budget, (3) the July 2006 home-equity note,
and (4) a June 2008 letter from her homeowners-insurance company thanking
her for renewing her policy.
This evidence does not raise a genuine issue of material fact about
whether the lienholder accelerated the note in 2007, 2008, or 2010 by sending
the requisite notices. The note and the June 2008 letter from Grady’s insurer are
irrelevant to this issue, and Grady produced no evidence of any notices that were
sent in either 2007 or 2008. The budget appears to refer to the August 9,
5The note’s optional acceleration clause is in paragraph 6(C). The “Texas
Home Equity Security Instrument” is not in the appellate record.
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2010 default-notice letter, which stated that the loan was “in serious default”; that
the total amount required to reinstate the loan was $33,070.56 in monthly
charges, late charges, and costs; and that Grady had the right to cure the default
by paying the past-due amount shown, “plus any additional regular monthly
payment or payments, late charges, fees and charges which become due on or
before September 8, 2010.” The letter warned Grady that the failure to cure her
default could result in foreclosure, and it described various ameliorative options
available to her, such as entering into a repayment plan or loan modification,
selling the property, or conveying the property to the lender in lieu of foreclosure.
Finally, the letter stated that “[i]f the default is not cured on or before September
8, 2010, the mortgage payments will be accelerated with the full amount
remaining accelerated and becoming due and payable in full, and foreclosure
proceedings will be initiated at that time,” and “[f]ailure to bring your loan current
or to enter into a written agreement by September 8, 2010 as outlined above will
result in the acceleration of your debt.”
U.S. Bank and Nationstar admit that the August 2010 default-notice letter
is a clear and unequivocal notice of intent to accelerate. But Grady produced no
evidence that this was followed by a clear and unequivocal notice of acceleration.
See Ogden v. Gibralter Sav. Ass’n, 640 S.W.2d 232, 233–34 (Tex. 1982)
(“Although the cases do not always clearly distinguish between [notices of intent
to accelerate and notices of acceleration], both types of notices are required.”);
EMC Mortg. Corp. v. Window Box Ass’n, Inc., 264 S.W.3d 331, 337 (Tex. App.—
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Waco 2008, no pet.) (“A proper notice of acceleration ‘in the absence of a
contrary agreement or waiver, cuts off the debtor’s right to cure his default and
gives notice that the entire debt is due and payable.’” (quoting Ogden,
640 S.W.2d at 234)).
Because Grady did not produce any evidence of a clear and unequivocal
notice of acceleration, there was no evidence that the note was in fact
accelerated, the event that would have started limitations running. See Holy
Cross, 44 S.W.3d at 566; see also Karam v. Brown, 407 S.W.3d 464, 469 (Tex.
App.—El Paso 2013, no pet.) (“To lawfully exercise an option to accelerate upon
default provided by a note or deed of trust, the lender must give the borrower
both notice of intent to accelerate and notice of acceleration, and in the proper
sequence.”). Accordingly, the trial court did not err by granting U.S. Bank and
Nationstar’s no-evidence summary-judgment motion. Having concluded that the
trial court properly granted summary judgment on no-evidence grounds, we need
not address whether it erred by granting summary judgment on traditional
grounds. See Ridgway, 135 S.W.3d at 600; see also Tex. R. App. P. 47.1.
We overrule Grady’s two issues.

Outcome: Having overruled Grady’s two issues, we affirm the trial court’s judgment.

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