Case: 21-20072 Document: 00516003202 Page: 1 Date Filed: 09/03/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-20072 September 3, 2021
Lyle W. Cayce
Clerk
Suniverse, L.L.C.,
Plaintiff—Appellant,
versus
Encore Credit Corporation, doing business as ECC
Credit Corporation of Texas; Lasalle Bank National
Association, as Trustee for Certificate Holders of
Bear Stearns Asset Backed Securities I LLC, Asset
Backed Certificates, Series 2006-HE10; JPMorgan Chase
Bank, National Association; U.S. Bank, N.A., Successor
Trustee to LaSalle Bank National Association, on
behalf of the holders of Bear Stearns Asset Backed
Securities I Trust 2006-HE10, Asset Backed Certificates
Series 2006-HE-10; Select Portfolio Servicing,
Incorporated; Mortgage Electronic Registration
Systems, Incorporated,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-2331
Before Stewart, Ho, and Engelhardt, Circuit Judges.
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No. 21-20072
Per Curiam:*
Suniverse LLC appeals the summary judgment in favor of
Defendants. Because there are no genuine disputes of material fact as to
Defendants’ rescission of acceleration, we AFFIRM.
I. FACTUAL AND PROCEDURAL HISTORY
On September 25, 2006, Carol Reed took out a home equity loan
worth $528,000.00 on her residence in Richmond, Texas. Encore Credit
Corporation (“Encore”) was the lender on the note, and Reed executed a
Deed of Trust in favor of Encore to secure the note. The Deed of Trust was
filed with Fort Bend County on October 3, 2006. Ownership of the note
changed hands several times, and U.S. Bank is the current holder of the note.
Select Portfolio Servicing Inc. (“SPS”) has serviced the note since June 1,
2013.
On November 4, 2014, SPS sent Reed a Notice of Default that advised
her that she had one month to cure the default by paying $568,059.71. The
notice informed her that if she failed to cure the default, “the Noteholder
[would] accelerate all payments owing on [the] Note and require that [she]
pay all payments owing on [the] Note and require that [she] pay all payments
owing and sums secured by the Security Instrument in full.” On May 21,
2015, SPS sent Reed a Notice of Acceleration. The Notice of Acceleration
advised Reed that:
Because of default in payment of the monthly mortgage
payments due under the Note, the Mortgagee has elected to
ACCELERATE the maturity of the debt and declare all sums
due under the Note immediately due and payable without
*
Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.
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further demand, and is proceeding to foreclose in accordance
with Tex. Const. Art. XVI § 50(a)(50)(D) and under the terms
of the Security Instrument.
On May 11, 2017, SPS filed an application for expedited foreclosure in
state court, and the court granted the application on August 21, 2017. SPS
never foreclosed on the property, and on March 12, 2019, SPS sent Reed a
Notice of Rescission of Acceleration of Note (“Notice of Rescission”)
stating that:
Pursuant to Texas Civil Practice and Remedies Code § 16.038,
the owner of the Note, in the original principal amount of
$528,000.00 dated September 25, 2006, secured by a lien on
the property located at 818 Kings Forest Lane, Richmond, TX
77469, (the “Note”) hereby rescinds all previous notices of ac-
celeration of the Note. This notice does not waive past defaults
on the Note nor does it waive or affect the Note owner’s right
to accelerate the maturity of the Note in the future.
On March 13, 2019, SPS sent Reed a letter offering to enter a new re-
payment plan (with a lower interest rate than her original note) and giving
her until April 6, 2019 to accept the offer. Reed did not expressly accept the
offer and she did not make any payments on the loan. On March 28, 2019,
SPS sent Reed a new Notice of Acceleration and a Notice of Trustee’s Sale
indicating that the property would be sold on May 7, 2019. The foreclosure
sale never occurred.
Previously, in January 2018, Reed gave a warranty deed to her home
to Harris Houston Homes LLC (“Harris Homes”). Harris Homes then gave
a warranty deed to the property to Suniverse LLC (“Suniverse”) in May
2018. Suniverse filed this suit on May 28, 2019 asserting claims for declara-
tory judgment, quiet title, and an equitable right of redemption against En-
core, SPS, and all other lending institutions that either owned or serviced the
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note (collectively, “Defendants”). The parties filed cross motions for sum-
mary judgment. The district court adopted the magistrate judge’s report and
recommendation and entered summary judgment in favor of Defendants.
This appeal followed.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo.
Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012). We will “grant
summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a).
III. DISCUSSION
On appeal, Suniverse argues that the district court erred because there
are genuine factual disputes about Defendants’ rescission of acceleration. We
disagree.
Suniverse first argues that the statute of limitations for Defendants to
foreclose on the property expired and that Defendants therefore lost their
ability to foreclose on the property. “A sale of real property under a power of
sale in a mortgage or deed of trust that creates a real property lien must be
made not later than four years after the day the cause of action accrues.” TEX.
CIV. PRAC. & REM. CODE § 16.035(b). “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. at § 16.035(d). The four-year limitations
period “does not begin to run until the maturity date of the last note, obliga-
tion, or installment.” Id. at § 16.035(e).
When a note contains an optional acceleration clause, default begins
when the holder accelerates the note. Holy Cross Church of God in Christ v.
Wolf, 44 S.W.3d 562, 566 (Tex. 2001). Before lenders can foreclose, they
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must provide “clear and unequivocal” notices of intent to accelerate and no-
tices of acceleration. Shumway v. Horizon Credit Corp., 801 S.W.2d 890, 892
(Tex. 1991). Acceleration can be reversed, inter alia 1, when a lender rescinds
or waives acceleration under section 16.038(a). That section provides that:
If the maturity date of . . . a note or obligation payable in install-
ments is accelerated, and the accelerated maturity date is re-
scinded or waived in accordance with this section before the
limitations period expires, the acceleration is deemed re-
scinded and waived and the note . . . shall be governed by Sec-
tion 16.035 as if no acceleration had occurred.
See TEX. CIV. PRAC. & REM. CODE § 16.038(a).
Rescissions or waivers are valid under section 16.038 when lienholders
or debt servicers give written notice to persons who are obligated to pay debts
(according to the records of the lienholder or servicer of the debt) before the
limitations period expires. Id. at § 16.038(b). Here, SPS sent Reed a written
Notice of Rescission within four years of the May 21, 2015 Notice of Accel-
eration. SPS’s Notice of Rescission complies with section 16.038(b) and ef-
fectively withdrew the prior acceleration. Defendants are therefore not
barred by the statute of limitations that expired on May 21, 2019.
Suniverse next argues that even if the March 12, 2019 Notice of Re-
scission complies with section 16.038 and provides some evidence that De-
fendants rescinded acceleration, the March and April 2019 statements 2 evi-
dence Defendants’ continued plan to accelerate the note. Suniverse con-
cludes that since Defendants did not adequately rescind their acceleration,
1
See Boren v. U.S. Nat’l Bank Ass’n, 807 F.3d 99, 105–06 (5th Cir. 2015).
2
Both were sent after the Notice of Rescission.
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they are beholden to the four-year statute of limitations in section 16.035(b)
and are barred from seeking a foreclosure sale.
We disagree with Suniverse’s position. While lenders may abandon
their right of acceleration by their conduct, see Sexton v. Deutsche Bank Nat’l
Trust Co., 731 F. App’x 302, 305–08 (5th Cir. 2018), it is unclear whether
Texas law permits them to abandon the abandonment of (or in other words,
to revive) their acceleration via conduct. Moreover, any intent to abandon
must be “unequivocally manifested.” Id. at 305 (citing Thompson v. Bank of
Am. Nat’l Ass’n, 783 F.3d 1022, 1025 (5th Cir. 2015)). The two mortgage
statements do not evidence a clear and unequivocal intent to revive Defend-
ants’ right of acceleration. Defendants’ Notice of Rescission clearly states
that “the owner of the Note . . . hereby rescind[] all previous notices of ac-
celeration of the Note.” This statutory method of rescission is a “best prac-
tice for a lender seeking to effectuate its abandonment.” Boren v. U.S. Nat.
Bank Ass’n, 807 F.3d 99, 106 (5th Cir. 2015). The two mortgage statements
do not raise a genuine factual dispute about whether Defendants adequately
rescinded the May 21, 2015 acceleration of the note. We thus conclude that
the district court’s summary judgment in favor of Defendants was proper.
IV. CONCLUSION
For the aforementioned reasons, the judgment of the district court is
AFFIRMED.
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Suniverse v. Encore Credit
Combined Opinion