- Case No. 14-40837. Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 74.5.4.
- Affirmed district court's summary judgment in favor of mortgage lender. Four-year statute of limitations to foreclose on residential real property after first accelerating the note did not bar the foreclosure in this case. Lender's foreclosure action in 2013, despite an initial notice of acceleration in 2004, was not time-barred under Texas law because lender accepted payment from borrower in 2006. Thus, the 2004 notice of acceleration was abandoned by the lender, and the lender's right to foreclose at a later time was restored for purposes of its subsequent notice of default and acceleration in 2010.
- Procedural context:
- Appeal of summary judgment by the United States District Court for the Eastern District of Texas, which granted judgment in favor of Defendant/Appellee Bank of America, as successor by merger to BAC Home Loans Services, L.P.
- Plaintiffs defaulted on their loan payments in 2003, and Defendant notified them in January 2004 that it was invoking the acceleration clause under the promissory note. In May 2004, Plaintiffs filed chapter 13 in May 2004, but the first case was dismissed in April 2005. A second case was filed in May 2005, but was dismissed in July 2005. In 2006, Plaintiffs made (and the lender accepted) several payments on the note, which were applied to the balance. The payments brought the loan current through March 2004. In 2010, Defendant sent a new notice of default and intent to accelerate the note. While Plaintiffs attempted to modify their loan, the paper work was never completed or processed by the lender. By 2013, the lender notified the Plaintiffs that their home was being posted for foreclosure. In response to the foreclosure notice, Plaintiffs sued Defendant and MERS in state court, which they removed to federal court under diversity jurisdiction. The District Court assigned the matter to a magistrate, which recommended summary judgment in favor of the defendants.
- Per Curiam (Prado, Owen, Graves)
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