Murphy et al v. HSBC Bank USA
OPINION AND ORDER. HSBCs motion to strike 74 is MOOT; the Court OVERRULES Plaintiffs objection 48 , ADOPTS Magistrate Judge Stacys memorandum andrecommendation 46 ) as its own, and GRANTS HSBCs motion for partial summary judgment ( 40 ; Plaintiff s related motion to continue to conduct discovery 42 is DENIED; HSBCs second motion for partial summary judgment 65 is GRANTED; and Plaintiffs requests for a declaratory judgment and to quiet title are DENIED. Defendant's Counterclaims remain pending. (Signed by Judge Melinda Harmon) Parties notified. (rhawkins)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HSBC BANK USA AS TRUSTEE FOR THE§
WELLS FARGO ASSET SECURITIES
CORPORATION HOME EQUITY ASSET- §
BACKED CERTIFICATES, SERIES
January 30, 2017
David J. Bradley, Clerk
PATRICK O’BRIEN MURPHY a/k/a
O’BRIEN MURPHY AND BEVERLY
CIVIL ACTION NO. H-12-3278
OPINION AND ORDER
Pending before the Court in the above referenced suit to quiet
title and for declaratory judgment, removed from the 270th
District Court of Harris County, Texas on diversity jurisdiction,
and challenging (1) the validity of the assignment of Plaintiffs
Patrick O’Brien Murphy and Beverly Murphy’s (“Plaintiffs’” or the
“Murphys’”) mortgage note to HSBC Bank USA as Trustee for the Wells
Certificates, Series 2006-1 by Wells Fargo Bank, N.A. (“HSBC”)
and/or the securitization of the loan and (2) HSBC’s standing to
foreclose, are the following matters:
(a) Defendant HSBC’s first motion for partial summary
judgment (instrument #40);
(b) Plaintiffs’ related motion to continue to conduct
(c) HSBC’s second motion for partial summary judgment
memoranda and recommendations (#46 recommending granting
of HSBC’s first motion for partial summary judgment and
discovery) and #83 (recommending granting of HSBC’s
second motion for partial summary judgment);
recommendations (#46 and 83, respectively); and
(f) HSBC’s motion to strike (#74) Plaintiffs’ motion to
As a housekeeping matter, the Court finds HSBC’s motion to
strike (#74) to be moot as United States Magistrate Judge Frances
Stacy ruled on the motion to compel (#77) on July 12, 2016.
Standards of Review
Motion for Summary Judgment
Summary judgment under Federal Rule of Civil Procedure 56(c)
is appropriate when, viewing the evidence in the light most
pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.”
A dispute of material
fact is “genuine” if the evidence would allow a reasonable jury to
find in favor of the nonmovant. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Where the nonmovant bears the burden of proof at trial,
the movant must offer evidence that undermines the nonmovant’s
claim or point out the absence of evidence supporting essential
elements of the nonmovant’s claim; the movant may, but does not
have to, negate the elements of the nonmovant’s case to prevail on
Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Lujan v. National Wildlife Federation, 497 U.S. 871, 885
(1990); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir.
“A complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other
Celotex, 477 U.S. at 323.
If the movant meets its burden and points out an absence of
evidence to prove an essential element of the nonmovant’s case on
which the nonmovant bears the burden of proof at trial, the
nonmovant must then present competent summary judgment evidence to
support the essential elements of its claim and to demonstrate that
there is a genuine issue of material fact for trial.
Ass’n of Gov’t Employees v. City Pub. Serv. Board, 40 F.3d 698, 712
(5th Cir. 1994).
“[A] complete failure of proof concerning an
essential element of the nonmoving party’s case renders all other
Celotex, 477 U.S. at 323.
The nonmovant may
unsubstantiated assertions that a fact issue exists, but must set
forth specific facts showing the existence of a genuine issue of
material fact concerning every element of its cause(s) of action.
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.
preclude summary judgment.
National Ass’n of Gov’t Employees v.
City Pub. Serv. Board, 40 F.3d at 713; Eason v. Thaler, 73 F.3d
1322, 1325 (5th Cir. 1996).
“‘[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment . . . .’”
Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990),
quoting Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 247-48
“Nor is the ‘mere scintilla of evidence’ sufficient;
‘there must be evidence on which the jury could reasonably find for
Id., quoting Liberty Lobby, 477 U.S. at 252. The
Id., quoting In re Municipal Bond Reporting
Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1978), and citing
Fischbach & Moore, Inc. v. Cajun Electric Power Co-Op., 799 F.2d
194, 197 (5th Cir. 1986).
“If the evidence is merely colorable,
Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th
Cir. 1999), citing Celotex, 477 U.S.
at 322, and Liberty Lobby,
477 U.S. at 249-50.
Allegations in a plaintiff’s complaint are not evidence.
1996)(“[P]leadings are not summary judgment evidence.”); Johnston
v. City of Houston, Tex., 14 F.3d 1056, 1060 (5th Cir. 1995)(for the
party opposing the motion for summary judgment, “only evidence-–not
argument, not facts in the complaint--will satisfy’ the burden.”),
citing Solo Serve Corp. v. Westown Assoc., 929 F.2d 160, 164 (5th
The nonmovant must “go beyond the pleadings and by
[his] own affidavits, or by depositions, answers to interrogatories
and admissions on file, designate specific facts showing that there
is a genuine issue of material fact for trial.”
Giles v. General
Elec. Co., 245 F.3d 474, 493 (5th Cir. 2001), citing Celotex, 477
U.S. at 324.
The court must consider all evidence and draw all inferences
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S.
574, 587 (1986); National Ass’n of Gov’t Employees v. City Pub.
Serv. Board, 40 F.3d at 712-13. The Court may not make credibility
determinations. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir.
2009), citing Turner v. Baylor Richardson Medical Center, 476 F.3d
337, 343 (5th Cir. 2007).
Magistrate Judge’s Memorandum and Recommendation
Title 28 U.S.C. § 636(b)(1) provides,
(A) A judge may designate a magistrate judge to hear and
determine any pretrial matter pending before the court,
except a motion for injunctive relief, for judgment on
the pleadings, for summary judgment, to dismiss or quash
an indictment or information made by the defendant, to
suppress evidence in a criminal case, to dismiss or to
permit maintenance of a class action, to dismiss for
failure to state a claim upon which relief can be
granted, and to involuntarily dismiss an action. A judge
of the court may reconsider any pretrial matter under
this subparagraph (A) where it has been shown that the
magistrate judge’s order is clearly erroneous or contrary
(B) a judge may also designate a magistrate judge to
conduct hearings including evidentiary hearings, and to
submit to a judge of the court proposed findings of fact
and recommendations for the disposition, by a judge of
the court, of any motion excepted in subparagraph (A), of
applications for posttrial relief made by individuals
convicted of criminal offenses and of prisoner petitions
challenging conditions of confinement.
Similarly, nondispositive matters may be referred to the magistrate
judge under Rule 73(a), and dispositive under Rule 72(b).
recommendations for which the party seeks reconsideration.
v. Stephens, No. 5:13-CV-189-DAE, 2014 WL 1668488, at *2 (Apr. 14,
2014), citing Thomas v. Arn, 474 U.S. 140, 151 (1985).
does not have to consider “‘[frivolous, conclusive, or general
Id., citing Battle v. U.S. Parole Comm’n, 834 F.2d
419, 421 (5th Cir. 1987).
A determination by the Magistrate Judge
to which the party specifically objects regarding a dispositive
matter must be reviewed de novo under 28 U.S.C. § 636(b)(1)(c).
The Magistrate Judges’s decision about a nondispositive matter is
reviewed under a “clearly erroneous or contrary to law” standard.
28 U.S. C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a)(“The district
judge . . . must . . . modify or set aside any part of the order
that is clearly erroneous or is contrary to law.”).
district court may determine that a factual finding is “clearly
erroneous” when it is “left with the definite and firm conviction
that a mistake has been committed.”
240 (5th Cir. 2007).
U.S. v. Stevens, 487 F.3d 232,
Findings to which no specific objections are
made require that the Court only to decide whether the memorandum
and recommendation is clearly erroneous or contrary to law.
v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
deferential standard of review the court must affirm the magistrate
judge’s description unless it finds that based on all the evidence
it is “left with a definite and firm conviction that a mistake has
Baylor Health Care Sys. v. Equitable Plan
Services, Inc., 955 F. Supp. 2d 678, 689 (N.D. Tex. 2013). quoting
U.S. v. Gypsum Co., 333 U.S. 364, 395 (1948)The district court “may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”
28 U.S.C. §
The district court may review and reconsider any pretrial
matter decided by the magistrate judge “where it has been shown
that the magistrate judge’s order is clearly erroneous or contrary
The district court reviews the magistrate judge’s legal
conclusions de novo.; Tolan v. Cotton, H-09-1324, 2015 WL 5332171,
at *1 (S.D. Tex. Sept. 14, 2015).
In the “vast area of choice that
remains to the magistrate judge who has properly applied the law to
fact findings that are not clearly erroneous,” the standard of
review is abuse of discretion.
Lahr v. Fulbright & Jaworski, LLP,
164 F.R.D. 204, 208 (N.D. Tex. 1996); Bancroft Life & Cas. ICC,
Ltd. v. FFD Resources II, LLC, 884 F. Supp. 2d 535, 537-38 (S.D.
The district court “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.
III. Motion for Continuance to Allow for Further Discovery for
Response to Motion for Summary Judgment (#42)
plaintiff’s entitlement to discovery prior to a ruling on a motion
for summary judgment is not unlimited and may be cut off when the
record shows that the requested discovery is not likely to produce
the facts needed by the plaintiff to withstand a motion for summary
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285
(5th Cir. 1990); Brown v. Livingston, 524 Fed. Appx. 111, 115 (5th
Cir. Man 2, 2013).
To obtain a continuance to allow for further
discovery before responding to a motion for summary judgment, the
nonmovant “must present specific facts explaining his inability to
make a substantive response . . . and by specifically demonstrating
‘how postponement of a ruling on the motion will enable him by
discovery or other means, to rebut the movant’s showing of the
absence of a genuine issue of material fact.’”
Id., quoting SEC v.
Spence & Green Chemical Co., 613 F.2d 896, 901 (5th Cir. 1980),
cert. denied, 449 U.S. 915 (1976); McCarty v. U.S., 929 F.2d 1085,
1088 (5th Cir. 1991).
Vague claims that “discovery will produce
needed, but unspecified, facts” are not adequate to warrant a
continuance. Id., citing Gossett v. Du-Ra-Kel Corp., 569 F.2d 869,
873 (5th Cir. 1978).
Under Rule 56(d) a party bears the burden of
demonstrating by affidavit or declaration or “equivalent statement
preferably in writing” that he cannot adequately present facts
necessary to defend against a motion for summary judgment without
a continuance and additional discovery.
Brown v. Livingston, 524
Fed. Appx. at 115, citing Access Telecom, Inc. v. MCI Telecomms
Corp., 197 F.3d 694, 719 (5th Cir. 1999)(stating that issue of
inadequate discovery is waived when movant fails “to file a motion
for continuance with an attached affidavit stating why the party
cannot present by affidavit facts essential to justify the party’s
opposition”); Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.
The nonmovant “must present specific facts explaining his
inability to make a substantive response as required by Rule 56(e)
and by specifically demonstrating ‘how postponement of a ruling on
the motion will enable him by discovery or other means, to rebut
the movant’s showing of the absence of a genuine issue of material
Washington, 901 F.2d at 1285, citing Gossett, 569 F.2d at
Suit to Quiet Title
A suit to quiet title “is an equitable action that involves
clearing a title of an invalid charge against the title.” Longoria
v. Lasater, 292 S.W. 3d 156, 165 n.7 (Tex. App.--San Antonio 2009,
pet. denied); Texas Property Code § 22.001.
The plaintiff must
rely on the strength of his own title, and not on the weakness of
the defendant’s title.
Hunt v. Heaton, 643 S.W. 2d 677, 679 (Tex.
A party seeking to quiet title must show “(1) he has an
interest in a specific property, (2) title to the roperty is
affected by a claim by Defendant, and (3) the claim, although
CitiMortgage, Inc., No. 4:12cv675-RAS-DDB, 2013 WL 2297203, at *2
(E.D. Tex. May 24, 2013).
Moreover the plaintiff “must allege
right, title, or ownership in himself . . . with reasonable
certainty to enable the court to see he . . . has a right of
ownership that will warrant judicial interference.”
Matthews, 26 S.W. 3d 575, 578 (Tex. App.--Beaumont 2000, pet.
The plaintiff bears the burden of proving his superior
equity and right to relief, i.e., the right, title, or ownership in
himself as a matter of law, and that the defendant’s adverse claim
“is a cloud on the title that equity will remove. “ Hahn v. Love,
321 S.W. 3d 517, 531 (Tex. App.--Houston [1st Dist. 2009, pet.
In Van Duzer v. U.S. Bank National Assoc., 995 F. Supp. 2d
673, 685 (S.D. Tex. 2014), aff’d, 582 Fed. Appx. 279 (5th Cir.
2014), the Honorable Sim Lake explained,
“A federal court asked to give res judicata effect to a
state court judgment must apply the res judicata
principles of the law of the state whose decision is set
up as a bar to further litigation.” E.D. Sys. Corp. v.
Sw. Bell Tel. Co., 674 F.2d 453, 457 (5th Cir. 1982); see
also Norris [v. Hearst Trust, 500 F.3d 454, 460-61 (5th
Cir. 2007)](“[T]he preclusive effect of prior state court
proceedings on federal proceeding is determined by the
treatment those state court proceedings would receive in
the courts of the state--here, Texas--in which those
prior proceedings were held.”); Rollins v. Dwyer, 666
F.2d 141, 144 (5th Cir. 1982)(“A state court judgment
commands the same res judicata effect from the federal
court as it would have in the court that rendered it,
without regard to whether the state court applied state
or federal law.”). Therefore, the court must look to
Texas law to determine the preclusive effect of the state
courts’ decision in the Plaintiffs’ prior lawsuit.
Thus in this case, the Court applies Texas law since the prior
decision was rendered in a Texas state court.
Claim preclusion or res judicata “bars the litigation of
litigated in an earlier suit.”
Test Masters Educational Services,
Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005), cert. denied, 547
U.S. 1055 (2006); see also Allen v. McCurry, 449 U.S. 90, 94
(1980)(“Under res judicata, a final judgment on the merits of an
action precludes the parties or their privies from relitigating
issue that were or could have been raised in that action.”); Barr
v. Resolution Trust Corp. ex rel. Sunbelt Federal Savings, 837 S.W.
2d 627, 629 (Tex. 1992); see also Igal v. Brightstar Information
Tech. Group, Inc., 250 S.W. 3d 78, 86 (Tex. 2008)(“Res judicata
bars the relitigation of claims that have been finally adjudicated
or that could have been litigated in the prior action.”).
is barred by res judicata when “(1) the parties are identical or in
privity; (2) the judgment in the prior action was rendered by a
court of competent jurisdiction; (3) the prior action was concluded
by a final judgment on the merits; and (4) the claim or cause of
action was involved in both actions.”
Under Texas law, to
warrant application of res judicata, the party must show “(1) a
jurisdiction; (2) identity of parties or those in privity with
them; and (3) a second action based on the same claims as were
raised or could have been raised in the first action.”
U.S. Brass Corp., 919 S.W. 2d 644, 652 (Tex. 1996), citing Texas
Water Rights Comm’n v. Crow Iron Works, 582 S.W. 2d 768, 771-72
Whether a prior judgment has a res judicata effect
is a question of law for the court.
Citizens Ins. Co. of Am. v.
Daccach, 217 S.W. 3d 430, 449 (Tex. 2007); Davis v. Dallas Area
Rapid Transit, 383 F.3d 309, 313 (5th Cir. 2004).
Generally there is no res judicata preclusion against nonparties.
Maxwell v. U.S. Bank, N.A., 544 Fed. Appx. 470, 473 (5th
Cir. 2012), citing Hansberry v. Lee, 311 U.S. 32, 40 (1940)(“[O]ne
is not bound by a judgment in personam in a litigation in which he
is not designated as a party or to which he has not been made a
party by service of process.”); Amstadt, 919 S.W. 2d at 652, citing
Tex. Civ. Prac. & Rem. Code § 37.006(a).
An exception to this rule
is when there is a “pre-existing substantive legal relationship
between the person to be bound and a party to the judgment.”
Taylor v. Sturgell, 553 U.S. 880, 894 (2008).
succeeding owners of property, bailee and bailor, and assignee and
assignor” are adequate to establish the requisite privity for res
Id.; see also Amstadt, 919 S.W. 2d at 653 (“‘[A]ll
persons are privy to a judgment whose succession to the right of
property therein adjudicated are derived through or under one or
the other of the parties to the action and which accrued subsequent
to the commencement of the action.’”), citing Kirby Lumber Corp. v.
(1946)(“Privity, in this connection, means the mutual or successive
relationship to the same rights of property.”).
relationship between a mortgage holder, a mortgage servicer, and a
mortgage lender usually is sufficient to establish privity for res
judicata purposes. Maxwell, 544 Fed. Appx. at 473 (finding privity
between lender and MERS acting as nominee for lender’s successor
To determine if “the same claim or cause of action was
involved in both actions,” the court uses a transactional test,
under which “a prior judgment’s preclusive effect extends to all
rights of the plaintiff ‘with respect to all or any part of the
transaction, or series of connected transactions, out of which the
[original] action arose.’”
Davis, 383 F.3d at 313, citing Petro-
Hunt, LLC v. U.S., 365 F.3d 385, 395-96 (5th Cir. 2004)(quoting the
Restatement (Second) of Judgments § 24(1)(1982). “What grouping of
facts constitutes a ‘transaction’ or a ‘series of transactions’
considerations as whether the facts are related in time, space,
origin, or motivation, whether they form a convenient trial unit,
and whether their treatment as a unit conforms to the parties’
expectations or business understanding or usage.’”
id., quoting id.
See also Barr, 837 S.W. 2d at 630-31 (affirming
transactional approach to res judicata).
The key inquiry under
this test is “whether the two actions are based on the ‘same
nucleus of operative facts.’”
Test Masters, 428 F.3d at 571,
quoting Davis, 383 F.3d at 312.
Thus the court examines the facts
transaction or series of transactions that arise from the same
nucleus of operative facts.
Davis, 383 F.3d at 313; Motient Corp.
v. Dondero, 269 S.W. 3d 78, 83 (Tex. App.--Dallas 2008).
Under Texas law debtors may sue for injunctive and declaratory
Financial LLC, 881 F. Supp. 2d 825, 828 (S.D. Tex. 2012), citing
inter alia Martin v. New Century Mortgage Co., 377 S.W. 3d 79, 8182 (Tex. App.--Houston [1st Dist.] 2012).
Once the debtor files
such a suit in a court of competent jurisdiction, Texas Rule of
Civil Procedure 736.111 imposes an automatic stay on foreclosure
Rule 736.11 (“Automatic Stay and Dismissal if Independent
Suit filed”) states in relevant part,
(a) A proceeding or order under this rule is
automatically stayed if a respondent files a separate,
original proceeding in a court of competent
jurisdiction that puts in issue any matter related to
the origination, servicing, or enforcement of the loan
agreement, contract, or lien sought to be foreclosed
prior to 5:00 p.m. on the Monday before the scheduled
(b) Respondent must give prompt notice of the filing of
the suit to petitioner or petitioner’s attorney and the
foreclosure trustee or substitute trustee by any
reasonable means necessary to stop the scheduled
(c) Within ten days of filing suit, the respondent must
file a motion and proposed order to dismiss or vacate
with the clerk of the court in which the application
was filed giving notice that respondent has filed an
original proceeding contesting the right to foreclose
in a court of competent jurisdiction. If no order has
been signed, the court must dismiss a pending
proceeding. If an order has been signed, the court
must vacate the Rule 736 order.
(d) If the automatic stay under this rule is in effect,
Texas recognizes a number of grounds for
challenging a foreclosure sale:
no default in payment by the debtor, Slaughter v. Qualls,
139 Tex. 340, 162 S.W. 2d 671, 675 (1942); violations of
the conditions and limitations of the trustee’s power of
sale under the deed of trust (id.); noncompliance with
the statutory notices and other requirements of a nonjudicial sale, Lido Inter., Inc. v. Lambeth, 611 S.W. 2d
622 (Tex. 1981); and . . . no “contractual standing” by
the party seeking to foreclose, Martin, 377 S.W. 3d at
Id. at 828.
The Texas Property Code establishes that only the mortgagee (§
51.0001(4)2) or the mortgage servicer (§ 51.0001(3)3), acting on
any foreclosure sale of the property is void. Within
10 business days of notice that the foreclosure sale
was void, the trustee or substitute trustee must return
to the buyer of the foreclosed property the purchase
price paid to the buyer.
(e) The court may enforce the Rule 736 process under
chapters 9 and 10 of the Civil Practices and Remedies
Section 51.0001(4) defines a mortgagee as “(A) the
grantee, beneficiary, owner, or holder of a security instrument;
(B) a book entry system; or (c) if the security interest has been
assigned of record, the last person to whom the security interest
has been assigned of record.” A “book entry system” refers to a
national book entry system for registering a beneficial interest
in a security instrument that acts as a nominee for the grantee,
beneficiary, owner, or holder of the security instrument and its
successors and assigns.” Tex. Prop. Code § 51.0001
(“Definitions”). A “security interest means a deed of trust,
mortgage, or other contract lien on an interest in real
A mortgage servicer is “the last person to whom the
mortgagor has been instructed by the current mortgagee to send
payment for the debt secured by the security instrument. A
mortgagee may be the mortgage servicer.” Tex. Prop. Code §
behalf of the current mortgagee, have standing to commence a nonjudicial foreclosure sale.
The owner of the note who proves by
testimony and/or documentation that he acquired the note by transfer
in an unbroken chain of assignments also has standing to foreclose
under common law.
Id., citing Martin, 377 S.W. 3d at 84.
As a general rule a plaintiff/borrower/mortgagee lacks standing
to attack the validity of any assignment of a Note or Deed of Trust
if he is not a party to the assignment, or an agent or assignee of
a party or a third-party beneficiary of the agreement; thus a number
of Texas courts have held that a mortgagee lacks standing to
challenge the validity of any assignment of the Note because he was
not a party to the assignment. Dale v. Alethes, LC, A-13-CV-012 LY,
recommendation adopted, 2013 WL 12116330 (W.D. Tex. July 26, 2013)4;
Citing inter alia Soufimanesh v. U.S. Bank, N.A., No.
4:12cv295, 2013 WL 3215744, *7-8 (E.D. Tex. June 24,
2013)(plaintiff not a party to assignments by MERS and therefore
did not have standing to challenge validity of assignments);
Marsh v. JPMorgan Chase Bank, N.A., 888 F. Supp. 2d 805, 808
(W.D. Tex. 2012)(plaintiff mortgagees were not parties to
assignment of Deed of Trust and therefore lack standing to
challenge assignment); Morlock, LLC v. JP Morgan Chase Bank,
N.A., Civ. A. No. H-12-1448, 2012 WL 3187918, at *5 (S.D. Tex.
Aug. 2, 2012)(“Courts in this circuit have repeatedly held that
plaintiffs have no standing to challenge such assignments unless
they become a party, agent or assignee of a party, or a thirdparty beneficiary of the agreement”); Willeford v. Wells Fargo
Bank, N.A., Civ. A. No. 3:12-CV-0448-B, 2012 WL 2864499, at *2
(N.D. Tex. July 12, 2012)(courts have “consistently held” that
borrowers do not have standing to challenge assignment of their
mortgages because they are not parties to those assignments).
DeFranceschi v. Wells Fargo Bank, N.A., 837 F. Supp. 2d 616, 623
(N.D. Tex. 2011); Conrad v. Texas BAC Home Loan Servicing, LP, No.
07-12-00305-CV, 2014 WL 545726, at *3 (Tex. App.--Amarillo Feb. 7,
Other courts have held that under certain circumstance a
mortgagor-plaintiff may have standing to challenge a mortgage
See, e.g., Calderon v. Bank of America, 941 F. Supp.
2d 753, 764-67 (W.D. Tex. 2013)(and cases cited therein).
principal exception to the general rule is where an assignee of a
claim sues the obligor for performance:
The law is settled that the obligors of a claim may
defend the suit brought thereon on any ground which
renders the assignment void, but may not defend on any
ground which renders the assignment voidable only,
because the only interest or right which an obligor of a
claim has in the instrument of assignment is to insure
himself that he will not have to pay the same clam twice.
National Insurance Co., 523 S.W. 2d 426, 430 (Tex. Civ. App.-Houston (1st Dist.) 1975), citing Glass v. Carpenter, 330 S.W. 2d
530 (Tex. Civ. App.--San Antonio 1959, writ ref’d n.r.e.); see also
Reinagel v. Deutsche Bank Nat’l Trust Co., 735 F.3d 220, 224-25 (5th
Cir. 2013)(borrower has standing to challenge assignments if void,
but not if merely voidable). This holding accords with black letter
principles of contract law:
Generally the rules of contract interpretation apply to
construction of a mortgage. 5 Banking Law § 120.2.
A void contract is “invalid or unlawful from its
inception” and therefore cannot be enforced. 17A C.J.S.
Contracts § 169. Thus, a mortgagor who is not a party to
an assignment between mortgagees may nevertheless
challenge the enforcement of a void assignment.
voidable contract, on the other hand, “is one where one
or more of the parties have the power, by manifestation
of an election to do so, to avoid the legal relations
created by the contract.” Id. Accordingly only one who
was a party to a voidable contract has standing to
Calderon, 941 F. Supp. 2d at 764-65.
“Under Texas law, a secured lender ‘must bring suit for . . .
the foreclosure of a real property lien not later than four years
after the day the cause of action accrues.’”
Boren v. U.S. Nat’l
Bank Ass’n, 807 F.3d 99, 104 (5th Cir. 2015), citing Tex. Civ. Prac.
& Rem. Code § 16.035(a). The applicable four-year statute of
limitations for real property actions is found in Texas Civil
Practice and Remedies Code § 16.035(a), addressing (a) judicial
foreclosures, and (b) nonjudicial foreclosures.5
Lawson v. GMAC
Section 16.035 (“Lien on Real Property”) states,
(a) a person must bring suit for the recovery of real
property under a real property lien or the foreclosure
of a real property lien not later than four years after
the day the cause of action accrues.
(b) a sale of real property under a power of sale in a
mortgage or deed of trust that creates a property lien
must be made not later than four years after the day
the cause of action accrues.
(c) The running of the statute of limitations is not
suspended against a bona fide purchaser for value, a
lienholder, or a lessee who has no notice or knowledge
of the suspension of the limitations period and who
acquires an interest in the property when a cause of
Mortg., LLC, Civ. A. No. 3:12-CV-00212, 2013 WL 1948128, at *2 (S.D.
Tex. May 9, 2013).
Under § 16.035(e), for notes payable in
installments and a real property lien, limitations does not begin
to run until the maturity date of the last note, obligation, or
Furthermore under black letter Texas law, “‘If
a note or deed of trust secured by real property contains an
optional acceleration clause, the default does not ipso facto start
limitations running on the note.
Rather, the action accrues only
action on an outstanding real property lien has accrued
for more than four years, except as provided by:
(1) Section 16.062, providing for suspension in
the even of death; or
(2) Section 16.036, providing for recorded
extensions of real property liens.
(d) 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.
(e) If a series of notes or obligations payable in
installments is secured by a real property lien, the
four-year limitations period does not begin to run
until the maturity date if the last note, obligation,
(f) The limitations period under this section is not
affected by Section 3.118, Business & Commerce Code.
(g) In this section, “real property lien” means:
(1) a superior title retained by a vendor in a
deed of conveyance or a purchase money note; or
(2) a vendor’s lien, a mortgage, a deed of trust,
a voluntary mechanic’s lien or a voluntary
materialman’s lien on real estate, securing a note
or other written obligation.
when the holder actually exercises its option to accelerate.’” Id.,
quoting Holy Cross Church of God in Christ v. Wolf, 44 S.W. 3d 562,
566 (Tex. 2001)(“Section 16.035 modifies the general rule that a
claim accrues and limitations begins to run on each installment when
it becomes due.”), citing Hammann v. H.J. McMullen & Co., 122 Tex.
476, 62 S.W. 2d 59, 61 (1933), and Curtis v. Speck, 130 S.W. 2d 348,
Nationstar Mortgage, LLC, 461 S.W. 3d 923, 925 (Tex. App.--Tyler
2015, pet. denied).
The holder of the note must send both a notice
of intent to accelerate and a notice of acceleration to exercise
Boren, 807 F.3d at 104. For acceleration to be
effective there must be a clear and unequivocal notice of intent to
Even if the holder has accelerated a note upon default,
acceleration can be abandoned “‘by agreement or other action of the
Id., quoting Khan v. GBAK Props., 371 S.W. 3d 347, 353
(Tex. App.--Houston [1st Dist.] 2012).
The holder of the note can
abandon acceleration if it continues to accept payments without
pursing any remedies available to it upon declared maturity. Boren,
807 F.3d at 104, citing Holy Cross, 44 S.W. 3d at 566-67.
acceleration is abandoned, the result is that the contract is
restored to its original condition, including the note’s original
Khan, 371 S.W. 3d at 353.
In Boren, noting that the Texas Supreme Court had not yet
determined whether a lender, unilaterally, may abandon acceleration
of a note and if so, by what actions, the Fifth Circuit made an
Eerie guess as to how the high court would rule.
807 F.3d at 105.
The panel chose to defer to Texas’ intermediate appellate courts
which were in agreement that “the holder of a note may unilaterally
abandon acceleration [thereby restoring the note to its original
condition] after its exercise, so long as the borrower neither
Id. at 105.
It concluded that the Texas Supreme
Court most likely would hold that a lender may unilaterally abandon
acceleration of a note by sending notice to the borrower that the
lender no longer seeks to collect the full balance of the loan and
will permit the borrower to cure its default by providing sufficient
payment to bring the note current under its original terms.
HSBC’s First Motion for Partial Summary Judgment (#40)
HSBC briefly summarizes the facts underlying this suit.
2006 the Murphys refinanced a loan on their property at 503
Flaghoist Lane, Houston, Texas (the “Property”) with Wells Fargo
Bank, N.A., as evidenced by a Texas Home Equity Rate Note (the
“Note”) and Security Instrument (the “Deed of Trust”) entered into
by Plaintiffs and the original lender, Wells Fargo Bank, N.A.
Original Petition, #1-3, Ex. B.2, ¶ 3; Id., Exs. A,B.
concede that they stopped making payments on the loan in 2008 “in
compel the Bank to negotiate with them” about refinancing
Pet. at ¶ 8.
Therefore Wells Fargo, as the mortgage servicer
for HSBC, sent the Murphys a notice of intent to accelerate the Note
in April 2008 and then in June 2008 a notice of acceleration.
July 12, 2008 it sent them an application for expedited non-judicial
foreclosure pursuant to Texas Rule of Civil Procedure 736.
To stop the foreclosure, the Murphys filed suit in the 55th
Judicial District Court, at first alleging fraud and breach of
contract, but later adding a claim for violation of the Texas
Deceptive Trade Practices-Consumer Protection Act. Patrick O’Brien
Murphy aka O’Brien Murphy and Beverly Murphy v. Wells Fargo Bank,
N.A. and HSBC Bank USA, Cause No. 2008-67808 (the “2008 Lawsuit”).
#40, Ex. A, Original Petition of the 2008 Lawsuit. While Plaintiffs
never challenged HSBC’s standing or right to foreclose in this
action, they were aware of and could have asserted such a claim, as
evidenced by the content of their motions and filings in that suit.
Ex. A, Exs. A.1 and A.2.
Summary judgment in the 2008 lawsuit was
granted in favor of Defendants and was recently affirmed by the
Texas Supreme Court. Murphy v. Wells Fargo Bank, N.A., 14-11-00560CV, 2013 WL 510129, at *9 (Tex. App.--Houston [14th Dist.] Feb. 12,
1013), aff’d in part relating to summary judgment, but rev’d in part
regarding trial court’s granting of attorney’s fees to Wells Fargo,
No. 13-0236, 2015 WL 500636 (Tex. Feb. 6, 2015)(rehearing denied).
After the 2008 summary judgment in Defendants’ favor was issued
in the district court, Plaintiffs lived at the Property without
making any mortgage payments for four years.
HSBC then sent a new
notice of intent to accelerate in December 2011, which HSBC contends
abandoned the 2008 acceleration, and followed it with a new notice
of acceleration in June 2012,
Ex. B (the “2012 Foreclosure
Application,” which is a matter of public record6).
16, 2012 HSBC filed a second application for expedited non-judicial
foreclosure under Rule 736, Cause No. 2012-46993, with the same
securitization of the loan as that in the first
stop this effort to foreclose, the Murphys filed their Original
Petition in the 151st Judicial District of Harris County, Patrick
O’Brien Murphy aka O’Brien Murphy and Beverly Murphy v. Wells Fargo
Bank, N.A. and HSBC Bank USA as Trustee For Wells Fargo Asset
Securities Corporation Home Equity Asset-Backed Certificates Series
2006-1, Cause No. 2012-56500.
#1-3, B.2 (the “2012 Lawsuit”).
Subsequently the case was transferred to the 270th Judicial District
on November 5, 2012, and then removed to this court based on
The Petition in the instant suit challenges the assignment and
securitization of the loan, which took place prior to the filing of
Courts regularly take judicial notice of public records,
including court documents, where they are directly relevant to
the issue in dispute. Brown v. Bridges, 3:12cv-4947-P, 2016 WL
3660666, at *2 (N.D. Tex. Jan 26, 2016 (and cases cited therein).
the 2008 Lawsuit. The Petition alleges that (1) HSBC is barred from
seeking foreclosure by the statute of limitations in Tex. Civ. Prac.
& Rem. Code § 16.035;7 (2) HSBC in not a holder in due course of a
party authorized to enforce the note and thus has no standing to
bring a foreclosure action; and (3) the assignment of the note from
Wells Fargo to HSBC is void. The Murphys request the Court to quiet
title and to rule that the Deed of Trust is void and that Plaintiffs
are entitled to a title to the Property free and clear of any claim
by HSBC or Wells Fargo based on alleged defects in HSBC’s chain of
Petition at ¶ 19.
HSBC’s first motion for partial summary judgment argues that
Plaintiffs’ claims are barred by res judicata, as Magistrate Judge
Now that Plaintiffs are seeking to challenge HSBC’s
standing to foreclose based on alleged defects in HSBC’s chain of
title and other purported irregularities in the securitization of
Plaintiffs’ loan (Petition ¶¶ 9-10), HSBC argues that in the prior
suit between the same parties, Plaintiffs raised, though they did
not plead, the same challenge, and that it was rejected by the Texas
Moreover Plaintiffs could have litigated HSBC’s
standing to foreclose and any other challenge regarding the chain
On April 23, 2014 this Court initially granted final
summary judgment in favor of HSBC on limitations ground, finding
that HSBC’s lien and power of sale to enforce the real property
lien were void and dismissing the case (#31), but vacated that
order and final judgment on March 25, 2015 (#38) and reopened the
of title or securitization of Plaintiffs’ loan in the prior action,
but did not do so.
Although the causes of action in Plaintiffs’ 2008 Lawsuit
related to alleged promises made by Wells Fargo before entering into
the Loan, Plaintiffs at least six times (#140, Exs. A.3-A.8)
challenged HSBC’s capacity and standing to foreclose based on
alleged defects in its chain of title to the Note. Plaintiffs moved
for summary judgment, charging that there was “no evidence that
Wells Fargo is the present owner and holder of the instrument at
reflecting the transfer of the instrument.” Plaintiffs’ Traditional
and No Evidence Motion for Summary Judgment,
#40 Ex. A.3, ¶¶ 6 and
In response to Defendants’ current first motion for summary
judgment, Plaintiffs assert that “Wells Fargo transferred ownership
of the indebtedness in issue in this lawsuit, and cannot identify
the owners and holders of the debt,” and thus lacked standing to
pursue its counterclaim.
Ex. A.4 ¶ 2.
They also repeatedly
challenged the compliance of the assignment from Wells Fargo to HSBC
and the Pooling and Servicing Agreement (the “PSA”).
Ex. A.6, A.7.
In Reinagel, 735 F.3d at 224-25 and 228, the Fifth Circuit held that
an obligor cannot contest a voidable assignment and therefore that
a borrower does not have standing to challenge an assignment on the
grounds that the assignment violates a PSA, to which the borrower
was not a party nor third-party beneficiary and regarding which
there is no evidence that the parties to the PSA intended the
borrower to be a party or a third-party beneficiary; “facially valid
assignments cannot be challenged for want of authority except by the
defrauded assignor.” HSBC notes that in the instant case Plaintiffs
argue the assignment to the trust was invalid because it violated
the terms of the PSA, and that the loan’s assignment occurred after
May 30, 2006, the Closing Date of the PSA, rendering the assignment
Thus their challenge, even if true, would make the
Reinagel, 735 F.3d at 228; Omrazeti v. Aurora
Bank FSB, 12-CV-00730-DAE, 2013 WL 3242520, at *7 (W.D. Tex. June
25, 2013)(“[S]ince even an after-the-deadline transfer of the Notes
to the trust would merely be voidable at the option of the trust’s
assignment.”); Lopez v. Sovereign Bank, N.A., Civ. A. No. H-13-1429,
2014 WL 1315834, at *8 (S.D. Tex. Mar. 31, 2014)(construing Reinagel
to hold that a challenge based on a mortgage being transferred after
the date listed in the relevant PSA “could not provide the Reinagel
plaintiffs relief because they lacked standing to challenge the
violation . . . . because they were neither parties to the [PSA] nor
intended third-party beneficiaries.”).
The Magistrate Judge’s Memorandum and Recommendation (#46)
Magistrate Judge Stacy found that the underlying purpose of the
prior case and this case, i.e., stopping the foreclosure, was the
same, agreed that Plaintiffs repeatedly brought up the validity of
the assignment and or securitization of the Loan in the prior suit,
and that several times they noted that the assignment took place
well after the closing date of the PSA.
Moreover the February 6,
2015 decision by the Texas Supreme Court constituted a final
decision in the 2008 case. Finding that the undisputed summary
judgment evidence demonstrates that the claims in the instant suit
were or could have been brought in the prior suit, Magistrate Judge
Stacy concluded that res judicata barred their assertion here and
recommended that this suit be dismissed on res judicata grounds.
Alternatively, she concluded that if the claims were not precluded
assignment and/or securitization.
She further found that the
evidence reflects an unbroken chain of title from the original
lender, Wells Fargo Bank, N.A., to HSBC Bank USA, N.A., as Trustee
for Wells Fargo Asset Securities Corporation Home Equity AssetBacked Certificates, Series 2006-1.
#40, Ex. C.
She observed that
the Murphys are not parties to the assignment or to the PSA, nor is
there evidence they are third-party beneficiaries of either, so they
do not have standing to challenge the assignments.
Plaintiffs here lack standing to challenge the assignment and/or the
authority or capacity to execute an assignment or securitization of
the loan, and Wells Fargo purportedly indulged in “robo-signing,
even if these allegations are true, at most they would render the
assignment voidable and not void. Id., 735 F.3d a 226 (“[Texas] law
is settled that the obligors on a claim . . . may not defend
[against an assignee’s effort to enforce the obligation] on any
defendant’s] lack of authority, even if accepted as true, does not
Regarding Plaintiffs’ motion to continue to conduct discovery
to investigate how the note was transferred or not and whether they
concurred with HSBC’s argument that no amount of discovery can
remedy Plaintiffs’ lack of standing to assert such challenges under
Reinagel and its progeny. Because they were not parties to the PSA,
they lack standing to challenge their claim that the loan was
assigned after the deadline provided by the PSA.
Sigaran v. U.S.
Bank Nat’l Ass’n, 560 Fed. Appx. 410, 413-14 (5th Cir. Apr. 30,
Nor have Plaintiffs met the requirements for a continuance
to conduct further discovery.
She concluded, “By filing two
lawsuits and delaying the foreclosure, Plaintiffs have managed to
live for free in the Houston house for over seven years without
making any mortgage payments on the non-recourse loan.”
therefore recommends also denying Plaintiffs’ motion to conduct
Plaintiffs’ Objections to the Memorandum and Recommendations (#48)
First Plaintiffs insist that the Court must determine that HSBC
is the owner and holder of the Note in order for it to get a
judgment for foreclosure.
They charge that in its motion
partial summary judgment HSBC relies on a 2008 assignment, made
nearly two years after the formation of the trust for which HSBC
acts as Trustee and which is contrary to the trust instrument and
the representations made to the Internal Revenue Service, the
Security and Exchange Commission, and the investors in the trust.
Thus HSBC is either lying in its motion, or it lied to the public
and these government agencies.
Plaintiffs maintain that they need
discovery to determine the truth.
Second Plaintiffs contend that they did not file any pleadings
challenging HSBC’s standing to sue because HSBC’s standing was not
at issue in its first suit because HSBC did not sue on the debt in
Wells Fargo Bank, N.A., in its capacity as the servicer
of the loan, filed a counterclaim for a declaration that the Murphys
had not made mortgage payments and thus defaulted under the Note.
#42, Ex. A.
As the undisputed loan servicer, under Texas Civil
Practices and Remedies Code § 51.0025, Wells Fargo had standing to
bring the foreclosure action, whether or not it was the owner and
holder of the Note.
Since foreclosure or a money judgment for sums
due was not in dispute, standing was not an essential element of the
declaration that the Murphys had not made payments and that their
failure to do so constituted default under the Note, its standing
was not a necessary element of the counterclaim in issue.
it an issue in the breach of contract, fraud, and DTPA claims.
Furthermore, since the Murphys’ standing claims here are in
direct response to HSBC’s claim that it has standing on its own to
enforce and foreclose on the note, HSBC bears the burden of proving
HSBC claims that the Note and Security instrument
attached to HSBC’s motion were assigned to HSBC Bank USA as Trustee
for the Wells Fargo Asset Securities Corporation Home Equity AssetBacked Certificates, Series 2006-1, the assignment attached to the
counterclaim is signed by the prosecuting
Foreclosure Attorney who
identifies himself as an officer of Wells Fargo Bank, N.A.
is yet another version of the Note that was used in the previous
state court cases and that has a rubber stamp signatory and is
Plaintiffs contend that such contrary evidence “muddies
the waters” about HSBC’s compliance with the rules or controlling
authority on negotiated instruments under the Uniform Commercial
Code as adopted by Texas, where proof of delivery is mandatory to
complete the transfer and to support standing.
Finally, citing the declaration from Patrick O’Brien Murphy,
Ex. E to #42, Plaintiffs insist they are not asserting rights under
They claim that the trust for which HSBC is Trustee was
created on May 30, 2006, as evidenced by the SEC’s records and by
the cover page of the PSA.
Under the trust, loans were to be
assigned to the trust by the Closing Date of May 30, 2006. Moreover
the Internal Revenue Code of 1986, as amended, § 8600 et seq., and
Treasury Regulations 1.860 A-1 et seq. state that REMIC trusts, such
as the one in dispute here, cannot take a troubled loan as an asset
and that all assets must be placed in the trust within 90 days of
Because this loan was declared in default before
June 2008, any assignment of the loan at that date is a violation
of the terms of the PSA.
Plaintiffs represent that under the PSA, Wells Fargo Bank was
the Originator of the Note; Wells Fargo Asset Securities Corporation
was the Depositor; Wells Fargo N.A. was to assign the Note to Wells
Fargo Asset Securities Corporation; and finally
Wells Fargo Asset
Securities Corporation was then to assign the Note to the Wells
Certificates, Series 2006-1 trust.
Plaintiffs highlight the fact
counterclaim long after the set deadlines.
HSBC’s Response to Plaintiffs’ Objections (#53)
While Plaintiffs may not have directly asserted an explicit
Magistrate Judge Stacy pointed out, “In the course of the First
challenged Wells Fargo’s and HSBC’s standing to foreclose . . . .”
As noted under applicable law, under the doctrine of res judicata,
“‘a final judgment on the merits of an action precludes the parties
or their privies from relitigating issues that were or could have
been raised in that action. [emphasis added by this Court]’”
Falcon v. Holly,
, 2016 WL 4427124 (5th Cir. Aug.
19, 2016), quoting Oreck Direct, LLC v. Dyson, Inc., 560 F.3d 398,
401 (5th Cir. 2009).
Because HSBC’s standing to foreclose stems
from the same nucleus of operative facts, Plaintiffs could have
asserted a claim that HSBC lacked authority to foreclose. Therefore
Judge Stacy correctly found that Plaintiffs’ challenge to HSBC’s
standing is barred by res judicata.
This Court agrees.
determined that alleged violations of the PSA are not actionable
under the Fifth Circuit’s holding in Reinagel, 722 F.3d at 706-07.
Here, too, this Court concurs with HSBC.
HSBC also insists that Magistrate Stacy correctly determined
that Plaintiff cannot challenge the assignment of Plaintiffs’
mortgage based on a lack of authority in the signor.
F.3d at 226 (“[I]n Nobles v. Marcus, [533 S.W. 2d 923, 926 (Tex.
1976),] the Texas Supreme Court clarified that a contract executed
on behalf of a corporation by a person fraudulently purporting to
be a corporate officer is, like any other unauthorized contract, not
void, but merely voidable at the election of the defrauded principal
. . . .”); see also Brinson v. Universal Am. Mortgage Co., Civ. A.
2014)(Rosenthal, J.)(holding that the allegation that the assignment
was signed by an employee of Bank America without authority to act
Reinagel, 735 F.3d at 334).
This Court agrees with HSBC that
Plaintiffs’ objection should be overruled on this issue, too.
Regarding Plaintiffs’ request for additional discovery, HSBC
maintains that Plaintiffs provide no facts showing why they need
additional discovery and how that additional discovery will create
a genuine issue of material fact, because Plaintiffs lack standing
to challenge the assignment of the mortgage as matter of law. Again
the Court agrees with HSBC.
Accordingly, the Court overrules Plaintiffs objection (#48),
adopts Magistrate Judge Stacy’s memorandum and recommendation (#46)
as its own, and grants HSBC’s first motion for partial summary
HSBC’s Second Motion for Partial Summary Judgment (#65)
Plaintiffs argue that this action is time-barred under Texas
Civil & Practices Code § 16.035 because HSBC did not foreclose on
their property within four years of the first acceleration of their
loan in June 2008.
HSBC contends that this argument fails because
HSBC abandoned its initial acceleration of the loan before the fouryear statute of limitations expired and therefore Plaintiffs’ claims
fail as a matter of law.
The key facts here are that Plaintiffs executed the Note and
the Deed of Trust to originate the mortgage on or around January 5,
The maturity date of the mortgage on their property at 503
Currently HSBC holds the Mortgage (Assignment of Mortgage, Ex. G.),
while Wells Fargo is the mortgage servicer for HSBC (Ex. A).
After Plaintiffs failed to cure their default, HSBC sent
Plaintiffs a Notice of Acceleration on June 12, 2008 to consummate
the 2008 Acceleration.
Exs. C & D.
The terms of the Mortgage
provide that once acceleration takes place, the maturity date of the
Mortgage was no longer February 1, 2016 (Ex. E) and all sums due and
owing under the Mortgage were immediately due and payable (Exs. E
Plaintiffs failed to cure their default after the 2008
Acceleration. Instead, as noted supra, to stop the foreclosure they
filed suit in the 55th Judicial District, where it remained pending
from November 2008-June 2011.
On March 6, 2011, HSBC, by and through Wells Fargo, sent
Plaintiffs the first Notice of Default and Intent to Accelerate (Ex.
B), which clearly and unequivocally informed them that the 2008
Acceleration had been abandoned and the Mortgage was no longer
Our records indicate that your loan is in default for
failure to make payments due.
Unless the payments on
your loan can be brought current by Apr. 5, 2011, it will
become necessary to require immediate payment in full
(also called acceleration) of your Mortgage Note and
pursue the remedies provided for in your Mortgage of Deed
of Trust, which include foreclosure.
The Notice also instructed them clearly and unequivocally that they
could “avoid the possibility of acceleration” by bringing the
Mortgage current, but if they failed to do so, HSBC would “proceed
This First Notice of Default made clear
that the 2008 acceleration had been abandoned and that the Mortgage
was no longer accelerated.
Plaintiffs still failed to timely cure their default so HSBC
Plaintiffs a new notice of acceleration (the “2011 Acceleration”),
informing Plaintiffs that HSBC had “accelerated the maturity date
of the Note and has declared all sums secured by the Deed of Trust
to be immediately due and payable.”
with a challenge to HSBC’s standing to foreclose.
Letter from Plaintiffs, Ex. J.
June 13, 2011
The result was abandonment of the
2011 Acceleration while Wells Fargo endeavored to resolve the issue
On December 30, 2011 HSBC sent a Second Notice of Default and
Intent to Accelerate (“Second Notice of Default,” Ex. C.), which,
Acceleration had been abandoned:
“If the default is not cured by
such payment within thirty (30) days of the date of this notice,
without further notice of demand, the maturity of the debt will be
accelerated and all sums secured by the Deed of Trust will be
declared to be immediately due and payable.”
Notice of Default demanded less than the fully accelerated balance
of the Mortgage and indicated that the 2011 Acceleration had been
foreclosure attorney sent Plaintiffs another Notice of Acceleration
(Ex. L, June 20, 1012 Notice of Acceleration).
On August 16, 2012
foreclosure, pursuant to Texas Rule of Civil Procedure 736. Ex. M.
Once again, Plaintiffs filed suit to stop the foreclosure in the
151st Judicial District of Harris County, Texas.
#1-B.2 (the “2012
HSBC removed that action to this Court on November 5,
HSBC maintains that under Texas law, abandonment of a mortgage
loan can be effected unilaterally by conduct or by joint agreement
and/or conduct of the parties.
Clawson v. GMAC Mortg., LLC, Civ.
A. No. 3:12-CV-00212, 2013 WL 1948128, at *3-4 (S.D. Tex. May 9,
2013), citing San Antonio Real-Estate, Bldg. & Loan Ass’n v.
Stewart, 61 S.W. 386, 388 (Tex. 1901).
Moreover conduct alone is
sufficient to abandon acceleration, and “a lender can unilaterally
abandon an acceleration.” Leonard v. Ocwen Loan Servicing, LLC, 616
Fed. Appx. 677, 679-80 (5th Cir. June 9, 2015)(citing Holy Cross, 44
S.W. 3d 562), cert. denied, 136 S. Ct. 554 (2015).
abandons acceleration when it ‘put[s] the debtor on notice of its
abandonment . . . by requesting payment on less than the full amount
of the loan.”
Boren, 807 F.3d at 106.
Not only may accepting a
payment after acceleration amount to abandonment or waiver of the
acceleration, but representing to the mortgagor that payment of less
than the entire obligation will bring the loan current may also
manifestation of “actual intent to relinquish it.”
Federal National Mortg. Ass’n, 814 F.3d 315, 318-19 (5th Cir. 2016),
citing Rivera v. Bank of America, N.A., 607 Fed Appx. 358, 361 (5th
Cir. 2015), and Boren, 807 F.3d at 105.
After a note holder
abandons acceleration, it is no longer required to foreclose within
four years from the date of acceleration.
Leonard v. Ocwen Loan
Servicing, LLC, CIV. A. H-13-3019, 2014 WL 4161769, at *4 (S.D. Tex.
Aug. 19, 2014), aff’d, 616 Fed. Appx. 677 (5th Cir. June 9, 2015,
cert. denied, 136 S. Ct. 554 (2015).
If the mortgage servicer
acceleration has occurred, there are no genuine issues of material
fact for trial.
HSBC argues that here it or its mortgage
servicer, Wells Fargo Bank, N.A., demanded less than the fully
matured and accelerated balance on the mortgage more than once after
the 2008 Acceleration and therefore the 2008 acceleration was
abandoned. Affidavit of Jessica Suzanne Phillips, #65, Ex. A; March
2011 Notice of Default, Ex. B; December 2011 Notice of Default, Ex.
C; Affidavit of Elizabeth Hayes, Ex. D.
Plaintiffs’ assertion that
HSBC is barred from foreclosing by the applicable statute of
limitations fails as a matter of law.
Cline v. Deutsche Bank Nat.
Trust Co., Civ. A. No. 3:24-CV-1565-D, 2015 WL 4041791, at *5 (N.D.
Tex. July 2, 2015)(“Abandoning acceleration before the limitations
period expires restores the contract to its original condition,
including the note’s original maturity date.
Thus if a noteholder
abandons acceleration, it no longer must foreclose within four years
from the date of acceleration.”[citations omitted]).
The Fifth Circuit has recently recognized a number of ways a
that a lender or loan servicer can abandon acceleration.
Leonard, 616 Fed. Appx. at 680 (Ocwen’s unilateral actions in
constitute abandonment of the 2009 Notice of acceleration); Boren,
807 F.3d at 106 (sending correspondence in which the lender demands
less than the fully accelerated balance of the loan proves that a
previous acceleration was abandoned as a matter of law and “provided
the Borens with an opportunity to avoid foreclosure if they cured
As a result the statute of limitations period
under § 16.035(a) ceased to run at that point and a new limitations
period did not begin to accrue until the Borens defaulted again and
U.S. Bank exercised its right to accelerate thereafter.”).
In the instant case the summary judgment evidence conclusively
demonstrates that the 2008 Acceleration was abandoned.
First and Second Notices of Default demanded that Plaintiffs pay
less than the fully accelerated balance of the Mortgage before the
limitations period expired. Exs. B and C. Thus there is no genuine
issue of material fact that the 2008 Acceleration of the Loan was
abandoned because HSBC “communicated explicitly . . . the intent to
seek less than the accelerated amount of the full default.” Leonard
v. Ocwen Loan Servicing, LLC, Civ. A. No. H-13-3019, 2014 WL
4161769, at *5 (S.D. Tex. Aug. 19, 2014), aff’d, 616 Fed. Appx. 677
(5th Cir. June 9, 2015), cert. denied, 136 S. Ct. Nov. 30, 2015).
judgment claim must be dismissed because Plaintiffs’ allegation that
HSBC’s lien is unenforceable fails as a matter of law.
In Kazmi v.
BAC Home Loans Servicing, LP, No. 4:11-CV-375, 2012 WL 629440, at
*15 (E.D. Tex. Feb. 3, 2012)(citations omitted), the district court
explained, “The Declaratory Judgment Act is a procedural device that
creates no substantive rights and requires the existence of a
Thus the Act provides no relief unless
there is a justiciable controversy between the parties.”
court went on to quote the Fifth Circuit in Bauer v. Texas, 341 F.3d
352, 258 (5th Cir. 2003):
In order to demonstrate that a case or controversy exists
to meet the Article III standing requirement when a
plaintiff is seeking injunctive or declaratory relief,
the plaintiff must allege facts from which it appears
there is a substantial likelihood that he will suffer
injury in the future. Based on the facts alleged, there
must be a substantial and continuing controversy between
two adverse parties.
The plaintiff must allege facts
from which the continuation of the dispute may be
Additionally, the continuing
controversy may not be conjectural, hypothetical, or
contingent; it must be real and immediate, and create a
definite, rather than speculative threat of future
In accord, Defranchesi v. Wells Fargo Bank, N.A., 837 F. Supp. 2d
616, 626-27 (N.D. Tex. 2011); Collin County, Tex. v. Homeowners
Ass’n for Values Essential to Neighborhoods, 915 F.2d 167, 170-71
(5th Cir. 1990); Val-Com Acquisitions Trust v. CitiMortgage, Inc.,
421 Fed. Appx. 398, 400-01 (5th Cir. Apr. 7, 2011).
Finally, HSBC urges that Plaintiffs’ claim for suit to quiet
title should also be dismissed as a matter of law.
A suit to quiet
title permits a plaintiff to remove “any unlawful hindrance” on
title to property that erroneously appears to be superior to the
plaintiff’s interest in the property.
Hahn v. Love, 321 S.W. 3d
517, 531 (Tex. App.-Houston [1st Dist.] 2009, pet. denied).
noted supra, “the plaintiff must recover on the strength of his or
her title, not the weakness of his adversary’s.”
CitiMortgage, Inc., No. A-11-CA-420-SS, 2011 WL 3268307, at *5 (W.D.
Tex. July 25, 2011). Plaintiffs base their suit on claims that HSBC
is barred from foreclosing on the Property by the applicable statute
of limitations and that its lien is therefore unenforceable.
do not base their suit on the strength of their own title, but on
the alleged weakness of HSBC’s lien.
Thus it fails as a matter of
Furthermore, the summary judgment evidence shows that
their claim fails as a matter of law because the 2008 Acceleration
was abandoned by the parties’ conduct.
Magistrate Judge’s Memorandum and Recommendation (#81)
supports HSBC’s argument that its acceleration of the Note was
abandoned with the result that the accrual date for purposes of §
16.035's four-year statute of limitations was reset.
The March 6,
2011 Notice of Default, sent by HSBC to the Murphys before the
expiration of the four-year statute of limitations, constituted an
abandonment of the 2008 acceleration because the terms of that
Notice were inconsistent with the prior 2008 acceleration and
allowed the Murphys to bring the loan current by paying an amount
substantially less than the full balance of the Note.
As such the
March 6, 2011 Notice of Default operated both as an abandonment of
the earlier acceleration, and it reset the four-year limitations
period under § 16.035 of the Texas Civ. Prac. & Rem. Code, which
would not begin until Plaintiffs again defaulted and HSBC exercised
its right to accelerate.
Boren, 807 F.3d at 106.8 Magistrate Judge
Stacy therefore recommended that the Court grant HSBC’s second
In Boren, 807 F.3d at 106, the Fifth Circuit found that
the second notice of default, stating that the borrowers could
bring their debt current by submitting the amount of their past
due monthly payments, instead of the full balance of the loan,
and that the bank would accelerate the loan if they did not cure
the arrearage in forty-five days, constituted abandonment of the
first notice of acceleration because it “unequivocally manifested
an intent to abandon the previous acceleration.”
In Leonard, 616 Fed. Appx. at 679, the Fifth Circuit found
that the loan servicer also sent a letter to the borrowers
stating that they could avoid acceleration of the maturity of the
debt by paying past due amounts, which amounted to less than the
total amount due on the loan.
motion for partial summary judgement in HSBC’s favor on all of the
Plaintiffs’ Objections (#83)
Plaintiffs observe that the Magistrate Judge relied mainly on
Fifth Circuit decisions in Boren, 807 F.3d 99, and Leonard, 616 Fed.
Appx. 677, holding that a new intent to accelerate letter that
offers the borrower an opportunity to cure the default by paying
less that the accelerated amount constitutes an abandonment of the
earlier acceleration and resets the accrual of the foreclosure cause
of action to the date of the new letter.9
Plaintiffs argue that the
The Court refers the parties also to Rivera v. Bank of
America, N.A., 607 Fed Appx. 358 (5th Cir. 2015)(addressing the
same issues), in which after the Riveras defaulted on their loan
payment in 2004, the mortgagee Bank of America exercised its
right of acceleration and gave notice of foreclosure. The
Riveras filed for Chapter 13 bankruptcy in May 2004, and after
that was dismissed, filed again in May 2005, which closed in July
2005. In 2006 the Riveras made several payments on the note that
were accepted by the lender and applied to the balance. In 2010
Bank of America sent the Riveras a notice of default and intent
to accelerate the entire balance of the loan. In 2010 Bank of
America also sent the Riveras a loan modification under the
federal Making Homes Affordable program, which they filled in and
submitted, but which somehow got lost. In February 2013 the Bank
of America notified the Riveras that their property would be
posted for foreclosure sale on March 5, 2013. The Riveras filed
suit in state court seeking a declaratory judgment barring the
bank for foreclosing on the grounds that the statute of
limitations had run. The case was removed to federal court,
where the district court judge adopted the magistrate judge’s
recommendation and granted summary judgment to the bank. The
The Fifth Circuit held that Bank America abandoned its 2004
acceleration of the note by accepting continued payments in 2006,
as the uncontroverted summary judgment evidence showed. Their
cause of action did not accrue until Bank of America again
Boren panel made the “wrong” Erie guess about what the Texas Supreme
Court would decide and that the borrower in Boren did not direct the
panel’s attention to Holy Cross, 44 S.W. 3d 562, the seminal case
which considered the issue and which, Plaintiffs argue, rejected it.
Moreover the Fifth Circuit panel in Leonard found that the Leonards
did not provide authority for the proposition that an offer to take
less than the accelerated amount was not abandonment and therefore
followed the reasoning of Boren.
They insist that Texas case law
both before and after Boren and Leonard provides no authority
a lender’s offer to take less than the accelerated amount, without
a clear and unequivocal statement that a waiver of the right to
accelerate is made by the lender.
Plaintiffs contend that Texas intermediate appellate courts
have held that the non-waiver provision of the loan documents
permitted the lender to take less than the full amount after
acceleration without affecting its right to rely on its previous
acceleration to foreclose.
In other words these courts have held
that an offer to take less than a full amount was not an abandonment
of acceleration; one Fifth Circuit panel has adopted this reasoning.
Plaintiffs assert that in Holy Cross, in which there was
evidence not only of a second acceleration, but multiple notices of
invoked the acceleration clause in 2010. Thus Bank of America’s
foreclosure suit in 2013 was within the four-year limitations
default, the Texas Supreme Court found that the first acceleration
letter triggered acceleration and by it, the accrual date for the
statute of limitations. Even though the lender offered to negotiate
and accept payments of less than the full amount, the Texas Supreme
Court did not even consider abandonment.10
Ex. A, Exs. 13 and 14,
copies of post acceleration letters from lender through its counsel.
See also Merchant v. PHH Mortgage Corp., Cause No. 12-12-00261-CV,
2013 WL 5593493 (Tex. App.--Tyler 2013, no pet.)11; Koehler v.
The Court disagrees with Plaintiffs’ view of this case.
The Fifth Circuit did address the abandonment issue in Holy
Cross, opining that a holder can by its actions, such as
continuing to accept installments, abandon the acceleration, but
nevertheless found that “abandonment is not implicated in this
case” because “‘it is undisputed that the Church did not pay the
balance or any portion [of the note], or resume making regular
payments or in any way change its position.’” 44 S.W. 3d at 566,
570. Nevertheless the court did hold that accrual is a legal
question, and whether a holder has accelerated a note is a fact
question; but it also held that parties may agree on the
acceleration issue, as they did in that case where the
defendant’s response to Holy Cross’s motion for summary judgment
and his own counter-motion for summary judgment judicially
admitted that the note was accelerated on August 15, 1994. Id.
In Merchant, after PHH Mortgage Corporation sent Merchant a
letter specifying that he was in default and that he had to cure
that default by a certain date, then a notice of default,
followed by a notice of acceleration with notice of the trustee’s
sale, PHH’s counsel sent Merchant two letters, which provided,
pursuant to Merchant’s request, the reinstatement figures for the
loan through the end of the month in which the letter was sent
and an explanation that the amount due changes daily and
instructions for him to call for the exact amount due. Each
letter also stated that “[o]nce funds are received, the
foreclosure action will be discontinued upon verification with
the mortgage company that the funds are sufficient to reinstate
your account.” Merchant argued that these letters contradicted
the assertion that his loan had been accelerated and raised a
Pioneer Am. Ins. Co., 425 S.W. 2d 889, 892 (Tex. Civ. App.--Ft.
Worth 1968, no writ)12; Residential Credit Solutions, Inc. v. Burg,
No. 01-15-00067-CV, 2016 WL 3162205 (Tex. App.--Houston [1st Dist.]
June 2, 2016)13; Khan v. GPAK Properties, Inc., 371 S.W. 3d 347, 356
fact issue as to whether PHH waived its right to accelerate and
foreclose. The court disagreed, finding that the letters offered
Merchant the opportunity to have the foreclosure process stopped,
but did not abrogate the effectiveness of the earlier notices and
did not raise a fact question about waiver of the right to
accelerate and foreclose. It also concluded that there is no
requirement in the statute that the three consecutive weeks’
notice be immediately prior to the sale.
In Koehler the plaintiff “suggested to the trustees to
whom defendant had conveyed the property that defendant execute a
quitclaim deed to the property and thus avoid a deficiency
judgment. Defendant admits he took the matter under
consideration, but never made a decision known to the trustees or
to the plaintiff.” The court concluded, “The parties may agree,
as defendant did in this case, that the recitals in the
conveyance to the purchaser at any trustee’s sale shall be full
evidence of the truth of the matters stated therein, and all
prerequisites to said sale shall be conclusively presumed to have
been performed.” 425 S.W. 2d at 892.
Plaintiffs argue that Merchant and Koehler support the
argument that without something more, new letters offering to
accept less that the full amount after accelerations are not
evidence of waiver of the right to foreclose. Therefore under
Texas law the second set of letters are not evidence of
The court in Residential, citing to Holy Cross and Khan,
noted the established rule that acceleration can be abandoned by
agreement or other action of the parties, such as when the holder
continues to accept payments without exacting any remedies
available to it upon declared maturity, and that abandonment is
generally a question of fact, while accrual is a matter of law.
2016 WL 3162205, at *3. In Residential the court found that two
identical stipulation agreements, each party signing one, did not
constitute evidence of abandonment because each expressly stated
that the mortgage servicer is entitled “to take any action
necessary to maintain the pending foreclosure action” and that
they “unambiguously reflect that [the mortgage servicer] will
(Tex. App.-Houston [1st Dist.] 2012, no pet.)14; Hardy v. Wells Fargo
Bank, N.A., No. 01-12-00945-CV, 2014 WL 7473762 (Tex. App.--Houston
[1st Dist.] no pet.)(acceptance of a single payment by Wells Fargo
did not show abandonment of acceleration and the note remained due
and owing, but the payments were made pursuant to a binding
repayment agreement that stated that partial payments would not
abandon acceleration and the lender expressly conditioned its
acceptance of payments on the continuation of a prior acceleration).
Plaintiffs insist that under Texas law, HSBC’s offer to take
less than the full amount is a unilateral contract, an illusory
promise that has no effect until the offerees, i.e., the Murphys,
act on the offer and pay the money.
353 S.W. 3d 128, 135 (Tex. 2011).
City of Houston v. Williams,
Since the Murphies did not so
act, there was no contract, the rights of the parties remain the
same; moreover the letter did not mention the prior acceleration or
its rights under the controlling loan documents.
Furthermore here there was no explicit modification agreement
between the parties.
HSBC presented only new letters of an intent
to accelerate and a right to cure and a new acceleration letter
abandon acceleration only if [the debtor] makes all of the
required payments under that agreement and brings the Note
current. [The debtor] never made a payment under either
Stipulation agreement.” Id. at *1 and 4. Thus the original
acceleration was not affected.
The court in Khan also concluded that whether a party has
abandoned acceleration of a note is a fact question. 371 S.W. 3d
(#83, Ex. B), which, at most, offer to forbear foreclosure if the
Instrument (#65-6, Ex. F, ¶ 11), between the Murphys and the lender
to forbear enforcement without waiving any remedies.
produced by the two parties consistently reserved the lender’s right
to proceed with foreclosure unless the Murphys cured the default
(#83, Ex. B):
“However, any future negotiations attempting to
reinstate your loan or any payment of less than the amount due shall
not require Wells Fargo Bank, N.A.’s waiver of the acceleration
unless otherwise agreed to, in writing, by Wells Farge Bank, N.A.”
F)(“Acceleration; Remedies), which include the statement, “The
notices shall further inform Borrower of the right to reinstate
after acceleration . . . .”
Thus new letters of intent to
accelerate and notice of acceleration do not undo the prior 2009
acceleration, or offer any more than the right the Murphys had under
the original documents; an offer to accept less than the full
payment beyond acceleration does not abandon acceleration or the
pending foreclosure process.
HSBC required the Murphys to agree by
the terms of ¶¶ 11 and 12 in the Security Instrument that any
accommodation offered to them could not be used against HSBC and
considered a waiver.
The Bank would have to show with more than a
intentionally and specifically waiving the quoted language.
has not shown that it waived these rights to proceed with the
remedies it had already declared, so its limitations argument must
Any waiver of those rights would have to establish all
elements of waiver:
“(1) an existing right, benefit, or advantage
held by a party; (2) the party’s actual knowledge of its existence;
intentional conduct inconsistent with the right.”
Thompson v. Bank
of America Nat’l Ass’n, 783 F.3d 1022, 1025 (5th Cir. 2015), quoting
Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W. 3d 773, 778 (Tex.
“Where waiver is claimed by inference rather than express
renunciation, ‘it is the burden of the party who is to benefit . .
unequivocally manifested its intent to no longer assert its claim,’”
Id. (citation omitted).
The homeowner must provide conclusive
evidence of the bank’s intent to relinquish its right to foreclose;
evidence that the bank accepted and considered a modification
agreement is not an abandonment of the right to foreclose without
an explicit statement or evidence that the bank intended to waive
The bank should be held to the same burden of proof as
the borrower in Thompson when it seeks to avoid limitations by
Instead HSBC relies only on the fact that
it made an offer to accept less than the accelerated balance to have
his Court infer abandonment.
There is no evidence that HSBC
unequivocally revoked its 2008 intent to foreclose.
Plaintiffs also quote in their entirety § 16.035 (“Lien on Real
Property”), § 16.036 (“Extension of Real Property Lien”), and §
16.038 (“Rescission or Waiver of Accelerated Maturity Date”) of the
Texas Civil Practice & Remedies Code, to argue that under all, read
together, the lender has to take affirmative and open acts, such as
foreclose, to infer or to make an abandonment.
Khan, 371 S.W. 3d
347. These statutes make clear that HSBC could unilaterally revoke,
but had to do so unequivocally; it cannot do so by inferring intent
from language where no such intent is explicitly stated.
Recommendation (#81, p.6 n.1.) stated that limitations were tolled
by Plaintiffs’ first lawsuit, a theory not raised by HSBC and one
rejected by this Court when it vacated its first order in its
Opinion and Order of March 25, 2015 (#38).
Plaintiffs argue that
in Landers v. Nationstar Mortgage, LLC, 461 S.W. 3d 923 (Tex. App.Tyler 2015, pet. denied), the borrowers (the Landers) defaulted on
their loan and the lender accelerated the debt on November 9, 2009.
The Landers then sued the lender for fraud and estoppel and moved
for and were granted a temporary injunction restraining the lender
from conducting a foreclosure sale of the property in dispute.
Ultimately the court granted summary judgment that the Landers take
nothing and the injunction expired by its terms.
The lender then
filed suit to judicially foreclose on the property and claimed the
prior suit tolled limitations during the time it was pending.
Court disagreed and held that the non-judicial foreclosure and the
judicial foreclosure were distinct procedures and an injunction
barring one was not effective to bar the other.
The lender could
have filed a suit for judicial foreclosure of the lien and thus was
not forced to take inconsistent positions in the litigation.
foreclosure in the prior case.
Since limitations was not tolled,
its 736 action filed in 2012 was time-barred.
Defendant’s Response (#84) to Plaintiffs’ Objections
Observing that Plaintiffs continue to argue that HSBC is barred
acceleration was abandoned.
It is undisputed that (1) on March 6,
2011 HSBC, by and through Wells Fargo, sent Plaintiffs a Notice of
Default and Intent to Accelerate (the “First Notice of Default”);
(2) that on December 30, 2011 HSBC sent Plaintiffs a second notice
of Default and Intent to Accelerate (“Second Notice of Default”);
and (3) Both First and Second Notices of Default clearly stated that
the Mortgage was no longer accelerated, gave notice to Plaintiffs
that the 2008 Acceleration had been abandoned, and demanded that
Plaintiffs cure their default or the mortgage again would be
Despite Plaintiffs’ claims of ignorance, which are
legally irrelevant, the Fifth Circuit has held that a “lender waives
its earlier acceleration when it ‘put[s] the debtor on notice of its
abandonment . . . by requesting payment on less than the full amount
of the loan.’”
Boren, 807 F.3d at 106, quoting Leonard, 616 Fed.
Appx. at 680; see also Alvarado v. U.S. Bank Nat’l Ass’n. 15-51017,
2016 WL 3402587, at *2 (5th Cir. June 20, 2016).
The Notices of
Default “unequivocally manifested an intent to abandon the previous
acceleration and provided [Plaintiffs] with an opportunity to avoid
foreclosure if they cured their arrearage.”
Thus the 2008
acceleration of the Mortgage was abandoned as a matter of law, and
Plaintiffs’ Objections should be overruled.
Next, HSBC contends that Plaintiffs misconstrue the Deed of
Trust and erroneously rely on one of its provisions to argue that
it creates a genuine issue of material fact about whether the 2008
Plaintiffs’ lender from exercising its rights and remedies under the
Mortgage “including, without limitations, Lender’s acceptance of
payments from third persons, entities, or Successors in Interest of
Borrower or in amounts less than the amount then due, shall not be
a waiver of or preclude the exercise of any right or remedy.”
6, Ex. F, ¶ 11.
HSBC asserts that courts in Texas have examined
this very language and concluded that it does not prevent lenders
from abandoning acceleration.
See, e.g., Wells v. Bank of Am.,
N.A., 3:13-CV-3658-M, 2015 WL 4269089, at *6 (N.D. Tex. July 14,
2015)(“The deed of trust does not preclude Defendant from abandoning
an acceleration of the loan.
It simply provides Defendant with a
reservation of rights if it chooses to refrain from exercising a
acceleration and waiver of acceleration are different issues.”);
Berry v. Fed. Nat’l Mortgage Ass’n & Seterus, Inc., 3:15-CV-3279-G
(BN), 2015 WL 9598894, at *8 (N.D. Tex. Dec. 14, 2015)(“The Deed of
Trust, by its terms, does not prohibit Defendants from extending
appeal briefing deadlines or agreeing with Plaintiffs to extend the
time in which Defendants can exercise their rights and remedies to
foreclose.”), report and recommendation adopted sub nom. Berry v.
Fed. Nat’l Mortgage Ass’n, 2016 WL 54334 (N.D. Tex. Jan 4, 2016);
Mendoza v. Wells Fargo Bank, N.A., Civ. A. H-14-554, 2015 WL 338909,
acceleration and waiver of future acceleration are separate issues.
. . . Plaintiffs point to no authority, and the court is aware of
none, construing an anti-waiver provision in a deed of trust as
barring abandonment of acceleration.
Furthermore, construing the
borrowers. As Wells Fargo argues, anti-waiver provisions ‘encourage
forbearance by allowing lenders to delay exercising remedies, such
as foreclosure, without the risk of losing contractual rights,’ but
‘applying [such a provision] to prevent abandonment of acceleration
Plaintiffs also argue that the Notices of Default did not
abandon the 2008 Acceleration because the Deed of Trust gives them
the right to reinstate their mortgage after acceleration.
Ex. F at
They claim that the Notices of Default did not “offer any
more than the right the Murphys had under the original loan
Defendant responds that Plaintiffs’ argument lacks
merit, maintaining that the Notices of Default clearly communicated
that the Mortgage was not accelerated, demanded less than the fully
accelerated balance of the Mortgage, and advised that the Mortgage
would again be accelerated if the default is not cured.
continued right to avoid foreclosure by reinstating their default
does not alter the fact that HSBC treated the Mortgage as if it was
not accelerated and communicated that it was not accelerated to
HSBC further contends that Section 16.038(e), the “Rescission
Statute,” simply offers one method, not an exclusive one, for a
lender to abandon or waive the acceleration of a mortgage by written
notice, but does not affect Wells Fargo’s ability to abandon the
Boren, 807 F.3d at 106 (the Rescission Statute
provides “a specific mechanism by which a lender can waive its
earlier acceleration: and should simply be “construed as a ‘best
practice’ for a lender to effectuate its abandonment.”).
not prohibit the earlier methods by which a lender may abandon or
waive its acceleration of the debt,” e.g., Tex. Civ. Prac. & Rem.
Code § 16.038.15
Id.; see also Nunnery v. Ocwen Loan Servicing,
2016)(Compliance with “§ 16.038, which sets out a procedure for
rescinding the acceleration of a note[,] . . . is irrelevant . . .
because ‘[t]he statute does not . . . create an exclusive method for
abandoning or waiving acceleration.’”)(citing Boren, 807 F.3d at
Thus Plaintiffs’ contention that the Rescission Statute
should be construed to require an explicit rescission of the 2008
Acceleration by HSBC fails as a matter of law.
Finally HSBC asserts that Judge Stacy correctly observed that
even if the 2008 Acceleration were not abandoned, HSBC is not
precluded from foreclosing on the Property because the limitations
period was tolled while Plaintiffs’ first lawsuit was pending. #81,
foreclosure under Rule 736 of the Texas Rule of Civil Procedure,
Section 16.038(b)-(c) “provides that waiver of
acceleration will be effective if the lender serves written
notice of its waiver by first class or certified mail.” Boren,
807 F.3d at 106. Section 16.038(d) states that “‘[a] notice
served under this section does not affect a lienholder’s right to
accelerate the maturity date of the debt in the future nor does
it waive past defaults.’” Id. Last, § 16.038 states, “This
section does not create an exclusive method for waiver and
rescission of acceleration or affect the accrual of a cause of
action and the running of the related limitations under Section
16.035(e) on any subsequent maturity date, accelerated or
otherwise, of the note or obligation or series of notes or
operated to toll the limitations period. See, e.g., Curry [v. Ocwen
Loan Servicing LLC, Civ. A. No. H-15-3089, 2016 WL 3920375, at *6
(S.D. Tex. July 14, 2016)(because ‘[a] Rule 736 proceeding cannot
be brought as a counterclaim in a borrower’s suit against the
constitutionally required court order they need to exercise their
contractually granted power of sale; and therefore ‘the statute of
limitations for exercising such was thus tolled’ during the pendency
of the borrower’s action).” That suit to stop foreclosure was filed
on November 13, 2008, stayed in the trial court until March 29,
2011, was appealed to the appellate court and then to the Texas
Supreme Court, which ultimately dismissed Plaintiffs’ claims on
February 6, 2015.
During that period, limitations was tolled on
HSBC’s foreclosure cause of action even if the 2008 Acceleration had
not been abandoned.
The Court concludes that the issues here are a matter of law.
Furthermore, after a careful de novo review, the Court concurs with
HSBC and United States Magistrate Judge, who has correctly cited and
applied the law to the facts here that are supported by the
documentary summary judgment evidence.
Furthermore, regardless of whether Plaintiffs agree with the
decisions of the intermediate appellate courts they cite over the
Circuit’s decisions in Bowen, and Leonard.
Moreover the Fifth
Circuit recently reiterated its rulings in Boren and Leonard in
Martin v. Federal Nat. Mortg. Ass’n, 814 F.3d 315 , 317-18 (5th Cir.
Because there is no case and controversy, Plaintiffs’
request for a declaratory judgment is denied.
Moreover their suit
to quiet title is also denied for reasons cited in this Opinion and
Accordingly, for the reasons stated above, the Court
ORDERS the following:
HSBC’s motion to strike (#74) is MOOT;
recommendation (#46) as its own, and GRANTS HSBC’s motion
for partial summary judgment (#40);
(3) Plaintiffs’ related motion to continue to conduct
discovery (#42) is DENIED;
(4) HSBC’s second motion for partial summary judgment
(#65) is GRANTED; and
(5) Plaintiffs’ requests for a declaratory judgment and
to quiet title are DENIED.
Defendant’s Counterclaims remain pending.
SIGNED at Houston, Texas, this
January , 2017.
UNITED STATES DISTRICT JUDGE
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