Deutsche Bank Trust Company Americas v. Johnson et al

Filing 26

ORDER GRANTING 19 Motion for Summary Judgment. Signed by Judge Robert Pitman. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE FOR NRZ PASS-THROUGH
TRUST V,
Plaintiff,
v.
ALICE M. JOHNSON
and CAROL A. JOHNSON,
Defendants.

§
§
§
§
§
§
§
§
§
§
§
§

1:15-cv-788-RP

ORDER
Before the court are Plaintiff’s Motion for Summary Judgment (Dkt. 19), Defendants’ Response
to Plaintiff’s Motion for Summary Judgment, (Dkt. 20), Plaintiff’s Reply (Dkt. 21), Defendants’ Surreply
(Dkt. 22), Plaintiff’s Amended Reply (Dkt. 24), and Defendants’ Surreply to the Amended Reply (Dkt.
25). After considering the briefing and the relevant law, the court grants Plaintiff’s Motion for Summary
Judgment.
I. Background
Plaintiff U.S. Bank National Association, as Trustee for NRZ Pass-Through Trust V (“U.S.
Bank”) alleges that on November 14, 2002, Defendant Alice M. Johnson (“Alice Johnson”) executed a
Texas Home Equity Note (“the Note”) with a principal of $146,250.00 payable to AEGIS Mortgage
Corporation d/b/a New America Financial (“AEGIS”). (Compl., Dkt. 1 at ¶ 14). Both Alice Johnson
and Carol A. Johnson (collectively, “Defendants”), concurrently secured the Note by executing a Deed
of Trust (“the DOT”),1 which was secured by the property commonly known as 332 West Morse Street,
Fredericksburg, Texas 79624 (“the Property”). (Id. at ¶¶ 4, 15). The DOT named Mortgage Electronic
1 “Though a deed of trust is formally distinct from a mortgage, Texas courts tend to use the two terms interchangeably.”
Reinagel v. Deutsche Bank Nat. Trust Co., 735 F.3d 220, 222 n.1 (5th Cir. 2013). For purposes of this order the court will do
the same.

1

Registration Systems, Inc. (“MERS”) as beneficiary and nominee for the Lender and its successors and
assigns. (Id. at ¶ 15). Through a series of transactions, the DOT and the Note were transferred to
Plaintiff on December 15, 2015. (Id. at ¶¶ 15–18); (Pl. Mot., Dkt. 19 at 3–4 & Ex. A-6).
According to Plaintiff, Defendants failed to make timely payments on the Note, and in 2004 one
of Plaintiff’s predecessors obtained an order for foreclosure. (Compl., Dkt. 1 at ¶ 19). MERS then
foreclosed on the Property on September 7, 2004, and purchased it at the foreclosure sale. (Id.). Shortly
thereafter, however, Defendants and Plaintiff’s predecessor reached an agreement to cure the default
and reinstate the loan. (Id. at ¶ 20). After making payments for some time, Defendants once again
defaulted on the loan. (Id.). In 2015, notices of default and requests to cure were mailed to Defendants,
but the default was not cured and the maturity of the debt was accelerated. (Id.). The loan is currently
due for the August 1, 2007 payment and all subsequent monthly payments. (Id.).
Plaintiff requests a judgment authorizing it to foreclose on the Property. It also requests
attorney’s fees and costs of suit as a further obligation on the Note.
II. Summary Judgment Standard
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only if
the movant shows there is no genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). A dispute is genuine only if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 254 (1986).
The party moving for summary judgment bears the initial burden of informing the district court
of the basis for its motion, and identifying those portions of [the record] which it believes demonstrates
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
burden then shifts to the nonmoving party to establish the existence of a genuine issue for trial.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); Wise v. E.I. Dupont de

2

Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). The parties may satisfy their respective burdens by
tendering depositions, affidavits, and other competent evidence. Estate of Smith v. United States, 391 F.3d
621, 625 (5th Cir. 2004).
The court views the summary judgment evidence in the light most favorable to the non-movant.
Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 221 (5th Cir. 2011). The non-movant must respond to the
motion by setting forth particular facts indicating that there is a genuine issue for trial. Miss. River Basin
Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000). “After the non-movant has been given the
opportunity to raise a genuine factual issue, if no reasonable juror could find for the non-movant,
summary judgment will be granted.” Id.
The court notes that Defendants are proceeding pro se in this case. Although courts “liberally
construe briefs of pro se litigants and apply less stringent standards to parties proceeding pro se than to
parties represented by counsel, pro se parties must still brief the issues and reasonably comply with
[federal procedural rules].” Grant v. Cuellar, 59 F.3d 524, 524 (5th Cir. 1995). “The notice afforded by the
Rules of Civil Procedure and the local rules” is “sufficient” to advise a pro se party of their burden in
opposing a summary judgment motion, see Martin v. Harrison Cty. Jail, 975 F.2d 192, 193 (5th Cir. 1992),
and “pro se status does not exempt [a litigant] from the usual evidentiary requirements of summary
judgment,” see Ellis v. Principi, 246 Fed. App’x. 867, 869 (5th Cir. Sept. 5, 2007) (per curiam) (citing Grant,
59 F.3d at 524).
III. ANALYSIS
Plaintiff seeks a judgment authorizing it to foreclose on the Property. Defendants contend that
the Note was accelerated in 2004, that the acceleration was never rescinded, and that any present right to
foreclose is therefore time-barred. They also argue that Plaintiff’s failure to mention “Homecomings
Financial” in the chain of title precludes summary judgment.

3

A. Judicial Foreclosure
The Texas Constitution protects homestead properties by providing that a home equity loan
secured by a lien “may be foreclosed upon only by a court order.” TEX. CONST. art. XVI,
§ 50(a)(6)(D); accord Patton v. Poterfield, 411 S.W. 3d 147, 157 (Tex. App.—Dallas 2013, pet. denied).
Plaintiff asserts that it is entitled to an order allowing it to proceed with the sale of the Property pursuant
to the Note, the DOT, and Texas Property Code § 51.002. Accordingly, Plaintiff must demonstrate that:
“(1) a debt exists; (2) the debt is secured by a lien created under Art. 16, § 50(a)(6) of the Texas
Constitution; (3) plaintiffs are in default under the note and security instrument; and (4) plaintiffs
received notice of default and acceleration.” Huston v. U.S. Bank Nat’l Ass’n, 988 F. Supp. 2d 732, 740
(S.D. Tex. 2013), aff’d, 583 Fed. App’x. 306 (5th Cir. 2014); Tex. Prop. Code. § 51.002. Plaintiff must
also demonstrate that it is the proper party to foreclose.
1. Existence of a Debt Secured by a Lien, Default, and Notice
The undisputed evidence produced by Plaintiff establishes that a debt exists and that the debt is
secured by a lien created under Art. 16, § 50(a)(6) of the Texas Constitution. Specifically, the undisputed
evidence establishes that Defendant Alice Johnson executed the Note in the principal amount of
$146,250.00 in favor of AEGIS as lender. (Pl. Mot., Dkt. 20, Exs. A, A-1). Defendants then
concurrently executed the DOT, which secured payment of the Note with a lien on the Property. (Id.,
Exs. A, A-2).
The undisputed evidence also establishes that Defendants are in default under the Note and
DOT and that Plaintiff’s predecessor properly served Defendants with notice of default and notice of
acceleration. Under the terms of the Note and DOT, Defendants were required to pay when due the
principal and interest on the debt evidenced by the Note. (Id., Exs. A, A-1, A-2). A failure to pay the full
amount of each monthly payment on the date it was due constituted a default under the terms of the
Note. (Id., Exs. A, A-1). Defendants defaulted on the Note by failing to make payments when due. (Id.,

4

Exs. A, A-8, A-9, A-12). The Note is currently due for the August 1, 2007 payment and all subsequent
monthly payments. (Id.). In the event of a default, the terms of the Note and DOT allow for acceleration
of all sums due under the Note and for foreclosure of the lien. (Id., Exs. A, A-1, A-2). On April 1, 2015,
a notice of default and intent to accelerate was sent to Defendants at the Property address by certified
mail. (Id., Exs. A, A-10). Defendants did not cure the default. (Id., at Exs. A, A-9, A-12). On May 1,
2015, the maturity of the debt was accelerated by mailing a notice of acceleration to Defendants at the
Property address. (Id., Exs. A, A-11). As of October 26, 2016, the total amount due under the terms of
the Note and Deed of Trust was at least $278,224.39. (Id., Exs. A, A-12).2
2. Whether Plaintiff is the Proper Party to Enforce Available Remedies
“Under Texas Property Code §§ 51.002, 51.0025, the mortgagee or mortgage servicer may
foreclose upon the property.” Flowers v. Deutsche Bank Nat. Trust Co., 614 F. App’x 214, 216 (5th Cir.
2015). A mortgagee is “the grantee, beneficiary, owner, or holder of a security instrument,” “a book
entry system,” or, “if the security interest has been assigned of record, the last person to whom the
security interest has been assigned of record.” Tex. Prop. Code § 51.0001(4). A mortgagee need not
possess or produce the note that a deed of trust secures; instead, both the noteholder and the
beneficiary of the deed of trust have the right to foreclose. See Harris Cty. v. MERSCORP Inc., 791 F.3d
545, 555 (“[T]he noteholder has the right to foreclose on the property identified in the deed of trust that
secures the note . . . [t]he beneficiary of the deed of trust likewise has the right to foreclose.”); Morlock,
L.L.C. v. Bank of N.Y., 448 S.W.3d 514, 518 (Tex. App.—Houston [1st Dist.] 2014 pet. denied)
(“[T]here is no requirement that the mortgagee possess or produce the note that the deed of trust
secures in order to conduct a [foreclosure].”).
The court notes that the record reflects that on September 7, 2004, MERS non-judicially foreclosed on the Property. (Pl.
Mot., Dkt. 19, Exs. A, A-7). A Recission of Substitute Trustee Deed was filed in the Gillespie County real property records
stating that the Substitute Trustee who had conducted the sale lacked the authority to do so. (Id., Ex. B-1). Defendants
acknowledge that the 2004 foreclosure was rescinded in their briefings. (Def. Resp., Dkt. 20, at 1) (“The [2004] foreclosure
was rescinded,” and the Note was accelerated shortly “after the foreclosure was rescinded”); (Def. Am. Surrep., Dkt. 25, at 1)
(“[T]he 2004 foreclosure was voided.”). The court therefore views the recission of the 2004 foreclosure as undisputed.
2

5

Here, Plaintiff claims to be both the beneficiary of the DOT as well as the owner and holder of
the Note. First, Plaintiff provides the DOT, which identifies MERS “as the “beneficiary” under the
DOT, “acting solely as a nominee for [AEGIS] and [AEGIS’] successors and assigns.” (Pl. Mot., Dkt.
19, Exs. A, A-2).3 From there, the Note and DOT pass from MERS to Deutsche Bank Trust Company
America as Trustee on November 14, 2002, then to Deutsche Bank Trust Company Americas as
Trustee for RALI 2002QS19 on May 1, 2012, then to Deutsch Bank Trust Company Americas, as
Trustee for Residential Accredit Loans, Inc., Mortgage Asset-Backed Pass-Through Certificates, Series
2002-QS19 on June 10, 2015, and finally to Plaintiff on December 15, 2015. (Id., Exs. A, A-3, A-4, A-5,
A-6). Each of these assignments was recorded in the real property records of Gillespie County, Texas.
(Id.).
The first two documents of assignment explicitly state that the assignee is assigning “all
beneficial interest” under the DOT “together with the note or notes therein described or referred to, the
money due and to become due thereon with interest, and all rights accrued or to accrue under said Deed
of Trust.” (Pl. Mot., Dkt. 19, Exs. A-3, A-4). The second two state that what is being assigned is “the
said Deed of Trust having an original principal sum of $146,250.00” and “the full benefit of all the
powers and of all the convenants and provisos therein contained . . . the Assignor’s interest under the
Deed of Trust . . . and the said property unto the said Assignee.” (Id., Exs. A-5, A-6). This language
clearly conveys interest in the DOT. While not as clear with regard to the Note, “a transfer of an
obligation secured by a note also transfers the note because the deed of trust and note are read together
to evaluate their provisions.” DeFranceschi v. Wells Fargo Bank, N.A., 837 F. Supp. 2d 616, 623 (N.D. Tex.

3 As explained in a case involving MERS and identical language in a DOT, “[a]s the beneficiary of the [DOT], MERS
held legal title to the Property and had the right to foreclose and sell the Property upon default, and therefore MERS had
the inherent authority to assign the Note and [DOT].” Hudson v. Citimortgage, Inc., 2013 WL 6284045, at *3 (N.D. Tex.
Dec. 2, 2013), aff’d, 582 Fed. App’x 537 (5th Cir. 2014); accord Burton v. Nationstar Mortg., L.L.C., 642 F. App’x 422, 425
(5th Cir. 2016). Under this arrangement, “[a]ny assignment by MERS [is] valid, and any assignee [becomes] the new
mortgagee and acquire[s] all of MERS’s rights.” Id. (citing Coleman v. Bank of N.Y. Mellon, 2013 WL 1187158, at *3 (N. D.
Tex. Mar. 4, 2013), rec. adopted, 2013 WL 1189264 (N. D. Tex. Mar. 21, 2013)).

6

2011); Cannon v. JPMorgan Chase Bank, N.A., 2011 WL 6838615, at *5 (E.D. Tex. Nov. 16, 2011) (same),
rec. adopted, 2011 WL 6838614 (E.D. Tex. Dec. 29, 2011); Islamic Ass’n of DeSoto, Texas, Inc. v. Mortg. Elec.
Registration Sys., Inc., 2012 WL 2196040, at *3 (N.D. Tex. June 15, 2012) (same); Kramer v. Fed. Nat. Mortg.
Ass’n, 2012 WL 3027990, at *5 (W.D. Tex. May 15, 2012) (“There is substantial authority for the
principle that, just as transfer of a promissory note operates to transfer the associated deed of trust, a
transfer of the deed of trust likewise transfers the note.” (collecting cases)); Reinagel v. Deutsche Bank Nat.
Trust Co., 735 F.3d 220, 225–26 (5th Cir. 2013) (explaining, without needing to hold, that “Texas courts
tend to follow the Restatement [(Third) of Property: Mortgages],” under which “the transfer of a mortgage
presumptively includes the note secured by the mortgage, whether or not the instrument of assignment
expressly references the note”). The court therefore finds that Plaintiff has carried its initial burden to
establish that it has the right to foreclose as the beneficiary of the DOT and as the owner and holder of
the Note.
Defendants responded to Plaintiff’s motion for summary judgment, but did not specifically
refute or address any of the above evidence. Instead, they argued that Plaintiff failed to mention
“Homecomings Financial” and its successor “GMAC” in the chain of title. As evidence that
Homecomings Financial owns or owned the Note and DOT, Defendants attached a photocopy of a
letter of default, dated September 23, 2004, stating that “Homecomings Financial Network Inc. is acting
as the Mortgage Servicer for Homecomings Financial, who is the Mortgagee of the Note and Deed of
Trust associated with [their] real estate loan.” (Def. Resp., Dkt. 20, Ex. A). Plaintiff replied, reiterating its
prior arguments, but did not address this letter of default. The court thereafter ordered supplemental
briefing on the issue of where “Homecomings Financial” fit into the chain of title vis-à-vis the Note and
DOT. Plaintiff replied with documentation purporting to show that “Homecomings Financial, LLC”
was the servicer of the loan until July 1, 2009, at which point it transferred its servicing rights to GMAC
Mortgage, LLC, which transferred the rights to Ocwen Loan Servicing, LLC, which in turn transferred

7

the rights to Nationstar Mortgage, LLC, the current servicer of the loan. (Pl. Am. Repl., Dkt. 24, Exs. C1, C-2, C-3). Defendants replied, acknowledged that Homecomings Financial is no longer the mortgagee
of the DOT, and asserted a new chain of mortgage assignments involving a number of previously
unmentioned entities. (Def. Am. Surrep., Dkt 25, at 2). Defendants now allege that the current owner of
the mortgage is one of those entities, not Plaintiff.
First, the only summary judgment evidence that Defendants have produced is the letter of
default referencing Homecomings Financial. To the extent that they allege any other entity was involved
in the chain of title, such allegations are “unsubstantiated assertions” which “are not competent
summary judgment evidence.” See Fed. R. Civ. P. 56(c); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.
1994). Second, Defendants’ letter of default stating that Homecomings Financial is the “Mortgagee of
the Note and Deed of Trust” is insufficient to create a genuine dispute of material fact as to whether
Plaintiff possesses the right to foreclose. Because “[r]eal property records often contain transfers taking
place many years in the past . . . Texas ‘view[s] with suspicion and distrust attempts to discredit
certificates of acknowledgement,’ under which the transfer is presumptively valid and contradicting
evidence ‘must be clear, cogent, and convincing beyond reasonable controversy.’” Morlock, L.L.C. v. JP
Morgan Chase Bank, N.A., 586 F. App’x 631, 634 (5th Cir. 2013) (quoting Ruiz v. Stewart Mineral Corp., 202
S.W. 3d 242, 248 (Tex. App.—Tyler 2006, pet. denied)). Plaintiff has produced evidence of facially valid
assignments, tracing an unbroken chain of title of the Note and DOT, with each assignment recorded in
the real property records of Gillespie County, Texas. (Pl. Mot., Dkt. 20, Exs. A-1, A-2, A-3, A-4, A-5, A6). Defendants do not refute Plaintiff’s evidence with any specificity, and do not provide any evidence of
a transfer of the Note or DOT to or from Homecomings Financial. They have therefore failed to
demonstrate the existence of a genuine dispute of material fact. See, e.g., Johnson v. Bank of Am., N.A.,
2014 WL 4923970, at *4–5 (S.D. Tex. Sept. 30, 2014) (summary judgment in favor of bank on issue of
standing to foreclose, based on bank’s production of an unbroken chain of title of deed of trust;

8

debtors’ production of a letter from mortgage servicer stating that different entity was the “Owner
and/or Mortgagee of the Note and [DOT]” was insufficient absent documents showing the transfer or
assignment of interests to that entity).
Accordingly, the court finds that Plaintiff is a proper party to institute foreclosure proceedings.
In conjunction with the matters discussed above relating to the debt, default, and notice, there is no
genuine dispute of fact that Plaintiff has satisfied the elements required for an order permitting it to
institute foreclosure proceedings under Texas Property Code § 51.002.
B. Acceleration and the Statute of Limitations
Defendants assert that the Note was accelerated in 2004, triggering the running of limitations
and rendering this action time-barred. (Def. Resp., Dkt. 20, & Ex. A). They argue that the purported
acceleration of the Note was never rescinded, and that such recission may only be accomplished through
written notice by the lender, which Plaintiff’s predecessor never gave. (Def. Am. Repl., Dkt. 25 at 1). To
establish the affirmative defense of the running of limitations, Defendants have the burden to establish
valid acceleration. See First Lake Corp. v. Yilmaz, 87 F.3d 1311, 1311 (5th Cir. 1996). Plaintiff responds
that Defendants cannot produce evidence of acceleration, and that even if the Note had been
accelerated, any such acceleration was rescinded by its predecessor’s acceptance of Defendants’ later
payments.
1. Acceleration
Under Texas law, a secured lender must foreclose on its “real property lien not later than four
years after . . . the cause of action accrues.” Tex. Civ. Prac. & Rem. Code § 16.035(a). “If a series of
notes or obligations or a note or obligation payable in installments is secured by a real property lien, the
four-year limitations period does not begin to run until the maturity date of the last note, obligation, or
installment.” Boren v. U.S. Nat. Bank Ass’n, 807 F.3d 99, 104 (5th Cir. 2015) (quoting EMC Mortg. Corp. v.
Window Box Ass’n, Inc., 264 S.W. 3d 331, 335 (Tex. App.—Waco 2008, no writ)). “If a note or deed of

9

trust secured by real property contains an optional acceleration clause,” however, “the action accrues . . .
when the holder actually exercises its option to accelerate.” Holy Cross Church of God in Christ v. Wolf, 44
S.W.3d 562, 566 (Tex. 2001). “Effective acceleration requires two acts: (1) notice of intent to accelerate,
and (2) notice of acceleration,” both of which “must be clear and unequivocal.” Id. Even if the
noteholder notifies the borrower of the holder’s intent to accelerate, “the holder can abandon
acceleration if the holder continues to accept payments without exacting any remedies available to it
upon declared maturity.” Id. at 566–67. “Abandonment of acceleration has the effect of restoring the
contract to its original condition, thereby restoring the note’s original maturity date for purposes of
accrual.” Boren, 807 F.3d at 104 (citation omitted). A noteholder may “unilaterally abandon acceleration
after its exercise, so long[ ] as the borrower neither objects to abandonment nor has detrimentally relied
on the acceleration.” Id. at 105.
“Texas courts have framed the issue of abandonment of acceleration by reference to traditional
principles of waiver.” Id. “Under Texas law, the elements of waiver include: (1) an existing right, benefit,
or advantage held by a party; (2) the party’s actual knowledge of its existence; and (3) the party’s actual
intent to relinquish the right, or intentional conduct inconsistent with the right.” Id. “Waiver is a
question of law when the facts that are relevant to a party’s relinquishment of an existing right are
undisputed.” Id. at 106.
As already mentioned, the only summary judgment evidence that Defendants have produced is
the 2004 letter of default from Homecomings Financial Network Inc. (Def. Resp., Dkt. 20, Ex. A). The
letter of default states only that “[i]f the default is not cured within thirty (30) days of the mailing of this
letter, the holder of the note, without further notice or demand, will accelerate the maturity date of the
Note.” (Id.). This appears to only communicate an intent to accelerate, not acceleration. Additionally,
Defendants do not dispute or explain Plaintiff’s summary judgment evidence, which indicates that
Defendants made at least three payments of $1,308.53—their monthly mortgage payment—to Plaintiff’s

10

predecessor in May, June, and August of 2007. (Pl. Mot., Dkt. 19, Exs. A, A-8, A-12). This was within
four years of the alleged acceleration, which would have occurred at some point after the receipt of the
2004 letter of default. Defendants have not produced any evidence that Plaintiff or Plaintiff’s
predecessors “exact[ed] any remedies available to [them] upon declared maturity.” Holy Cross, 44 S.W.3d
at 567. As a result, “[Plaintiff’s or Plaintiff’s predecessor’s] acceptance of [Defendants’] payments . . .
while refraining from pursuing any of their available remedies against [Defendants], is compelling
evidence of [their] intent to abandon” any purported acceleration. See Justice v. Wells Fargo Bank Nat’l
Ass’n., --- F. App’x ----, No. 15-20615, 2016 WL 7240195, at *4 (5th Cir. Dec. 14, 2016). Because
Defendants have “failed to present contrary evidence that raises a genuine dispute of material fact as to
[Plaintiff’s] intent,” Defendants’ cannot prevail on the grounds that the alleged acceleration of the Note
was never rescinded. Id.
Accordingly, the court finds that Plaintiff’s cause of action accrued in 2015 when its predecessor
either re-accelerated the Note or accelerated the Note for the first time by sending Defendants a notice
of intent to accelerate and then a notice of acceleration. See (Pl. Mot., Dkt. 19, Exs. A, A-10, A-11).
2. Notice of the Recission of Acceleration
Defendants also argue that any recission of acceleration is invalid if not carried out pursuant to
Texas Civil Practice and Remedies Code § 16.038, which states that “[r]ecission or waiver of acceleration
is effective if made by a written notice of a recission or waiver,” where such notice “must be made by
first class or certified mail.” Tex. Civ. Prac. & Rem. Code §§ 16.038(b)–(c).
First, the court notes that Section 16.038 was enacted in 2015, significantly prior to the events at
issue here. However, the court need not determine if the statute applies retroactively. As the Fifth
Circuit has explained, while the statute “provides a specific mechanism by which a lender can waive [or
rescind] its earlier acceleration,” it does not “create an exclusive method for abandoning or waiting
acceleration.” Boren v. U.S. Nat. Bank Ass’n, 807 F.3d 99, 106 (5th Cir. 2015). “Instead, the statute is

11

better construed as a ‘best practice’ for a lender seeking to effectuate its abandonment.” Id. “Even if the
statute were to apply retroactively, it does not prohibit the earlier methods by which a lender may
abandon or waive its acceleration of the debt.” Id. Consequently, the court rejects Defendants’
argument.4
IV. Conclusion
For the reasons detailed above, the court finds that Plaintiff is entitled to an order allowing
them to proceed with the sale of the Property pursuant to the Note, the DOT, and Texas Property
Code § 51.002. Accordingly,
It is ORDERED that Plaintiff’s Motion for Summary Judgment (Dkt. 19) is GRANTED.
It is FURTHER ORDERED that Plaintiff’s requested declaratory relief is GRANTED as
set forth in the accompanying judgment to this order.
SIGNED on February 14, 2017.

_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

4 Plaintiff produced copies of Defendant Alice Johnson’s bankruptcy schedules, filed in 2011 and 2014, in the Bankruptcy
Court for the Western District of Texas. (Pls. Mot. Ex. B-2, B-3). Plaintiff characterizes these schedules as demonstrating Ms.
Johnson’s acknowledgment that the Property is encumbered by Plaintiff’s lien, and that under Texas law such
acknowledgement defeats any potential statute of limitations defense. See Texas Civil Practice and Remedies Code § 16.065
(“An acknowledgment of the justness of a claim that appears to be barred by limitations is not admissible in evidence to
defeat the law of limitations if made after the time that the claim is due unless the acknowledgment is in writing and is signed
by the party to be charged.”). Because the court has already determined that any purported acceleration was rescinded, and
that the requirements of Texas Civil Practice and Remedies Code § 16.038 do not apply, it need not address this issue.

12