Stewart v. U.S. Bank National Ass'n
Stewart v. U.S. Bank National Ass'n
Opinion of the Court
ORDER
Pending before the Court are Defendant’s Motion for Final Summary Judgment (Document No. 19) and Plaintiffs Motion for Summary Judgment (Document No. 20). Having considered the motions, submissions, and applicable law, the Court determines the defendant’s motion should be granted and the plaintiffs motion should be denied.
I. BACKGROUND
This is a mortgage foreclosure case. Plaintiff Della Stewart (“Stewart”) is the owner of a residential property located at 8407 Ashwyne Lane, La Porte, Texas 77571 (the “Property”). On February 20, 2006, Stewart executed a home equity note in the amount of $88,950 on the Property (the “Note”), which was subsequently assigned to Defendant U.S. Bank National Association (“U.S. Bank”). The Note required Stewart to make monthly payments of $780.54 and established an original maturity date of March 2036. Sometime in 2008, Stewart stopped paying the Note’s
On September 22, 2010, ASC and Stewart entered into a forbearance agreement (the “Forbearance Agreement”) .whereby Stewart would make three monthly payments of $779.15 and in return U.S. Bank would not foreclose on the Property during that time period. Stewart made these three payments, which U.S. Bank applied to the Note. She then stopped making payments again, and she has not made any payments since those three payments. Subsequently, in 2012, U.S. Bank sent Stewart another notice of default and notice of acceleration, as well as a notice of foreclosure sale. On September 24, 2013, Stewart filed a complaint against U.S. Bank in the 189th District Court of Harris County, Texas, seeking to prevent U.S. Bank from foreclosing on the Property. On October 31, 2013, U.S. Bank removed the case to this Court. Both parties now move for summary judgment.
II. STANDARD OF REVIEW
Summary judgment is proper when “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R.CivP. 56(a). The court must view the evidence in a light most favorable to the nonmovant. Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997). Initially, the movant bears the burden of presenting the basis for the motion and the elements of the causes of action upon which the nonmovant will be unable to establish a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmovant to come forward with specific facts showing there is a genuine dispute for trial. See Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586437, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “A dispute about a material fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993) (citation omitted).
But the nonmoving party’s bare allegations, standing alone, are insufficient to create a material dispute of fact and defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Moreover, conclusory allegations unsupported by specific facts will not prevent an award of summary judgment; the plaintiff cannot rest on his allegations to get to a jury without any significant probative evidence tending to support the complaint. Nat. Ass’n of Gov’t Emps. v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 713 (5th Cir. 1994). If a reasonable jury could not return a verdict for the nonmoving party, then summary judgment is appropriate. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505. The nonmovant’s burden cannot be satisfied by “conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.’ ” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)). Furthermore, it is not the function of the court to search the record on the nonmovant’s behalf for evi
Ill LAW & ANALYSIS
Stewart seeks a declaratory judgment that U.S. Bank is barred from foreclosing on the Property by a four-year statute of limitations.
Under Texas law, “[a] sale of real property under a power of sale in a mortgage or deed of trust that creates a real property lien must be made not later than four years after the day the cause of action accrues.” Tex. Civ. Prac. & Rem. Code § 16.035(b); Clawson v. GMAC Mortg., LLC, No. 3:12-CV-00212, 2013 WL 1948128, at *2 (S.D.Tex. May 9, 2013) (Costa, J.).
Here, it is undisputed U.S. Bank exercised its option to accelerate the note on September 29, 2008. It is also undisputed that — after acceleration — both parties entered into a forbearance agreement and Stewart made three monthly payments pursuant to the Forbearance Agreement for less than the amount due under acceleration. The issue is whether such actions constitute abandonment of acceleration.
A The Forbearance Agreement
U.S. Bank contends acceleration was abandoned when the parties entered into the Forbearance Agreement. ASC mailed Stewart the Forbearance Agreement on August 19, 2010, and Stewart signed the Forbearance Agreement on September 22, 2010.
Stewart contends entering into the Forbearance Agreement did not abandon acceleration because the Forbearance Agreement did not mention the original March 2036 maturity date and thus did not restore the original maturity date. However, while an agreement or action abandoning acceleration has the effect of restoring the original maturity date, abandoning acceleration does not require an explicitly stated agreement that the original maturity date is restored. See Khan, 371 S.W.3d at 353 (finding abandonment “has the effect of restoring” the note’s original maturity date). Therefore, just because the Forbearance Agreement did not explicitly state the original maturity date was restored does not mean the Forbearance Agreement did not have the effect of restoring the original maturity date. Moreover, the Forbearance Agreement stated, “All provisions of the Note and Security Instrument, except as herein provided, shall remain in full force and effect.”
Stewart also contends entering into the Forbearance Agreement did not abandon acceleration because the Forbearance Agreement stated Stewart’s loan would not be contractually current even if she made the three monthly payments. However, such language simply recognized that, because Stewart had nofmade any payments since 2008, Stewart would still owe U.S. Bank the outstanding payments and fees.
In addition, Stewart contends entering into the Forbearance Agreement did not abandon acceleration because the Forbearance Agreement and the deed of trust did not preclude U.S. Bank from exercising any rights available to it upon acceleration, namely foreclosure. However, no language in the Forbearance Agreement states U.S. Bank retained rights available upon acceleration. U.S. Bank was simply not “waiving] [its] right to insist upon strict performance in the future.”
For these reasons, entering into the Forbearance Agreement constituted abandonment of acceleration of the Note. Because acceleration was abandoned, running of thé limitations period was likewise abandoned, and U.S. Bank no longer had to foreclose within four years of the date of original acceleration.
B. Payments of Less than the Amount Due Under Acceleration
U.S. Bank contends acceleration was also abandoned when Stewart ten
Stewart characterizes these three payments as being made only as part of a trial period plan to show she can make regular monthly payments in an effort to secure a loan modification. Thus, she contends, making these payments should not constitute abandonment in the same way continuing to make, monthly payments in an effort to catch up on a delinquent loan constitutes abandonment. Such a distinction is untenable because Stewart tendered these payments knowing they would be applied to the loan, knowing they were less than the amount due under acceleration, and knowing the Forbearance Agreement provided U.S. Bank would not foreclose on the Property during the time she made the payments. Stewart’s actions and knowledge were consistent with abandonment of acceleration, and at the time she made these payments she benefited from abandonment by not being foreclosed upon.
Accordingly, Stewart’s tender of payments of less than the amount due under acceleration, and U.S. Bank’s acceptance of such payments without pursuing any remedies available upon acceleration, constituted abandonment ■ of acceleration of the Note. Because acceleration was abandoned, running of the limitations period was likewise abandoned, and U.S. Bank no longer had to foreclose within four years of the date of original acceleration.
C. Summary
The applicable four-year statute of limitations began running on September 29, 2008, because U.S. Bank accelerated Stewart’s Note on that day. However, entering into the Forbearance Agreement, and tendering and accepting payments for less than the amount due under acceleration without seeking remedies available upon acceleration — individually and collectively — constitute abandonment of acceleration.
IV. CONCLUSION
Based on the foregoing, the Court hereby
ORDERS that Defendant’s Motion for Final Summary Judgment (Document No. 19) is GRANTED. The Court further
ORDERS that Plaintiffs Motion for Summary Judgment (Document No. 20) is DENIED.
The Court will issue a separate Final Judgment.
. Stewart has also brought a quiet title cause of action based on the same statute of limitations claim.
. Texas substantive law applies to this diversity action. See Am. Nat’l Gen. Ins. Co. v. Ryan, 274 F.3d 319, 328 (5th Cir. 2001).
.Because the material facts concerning abandonment are not disputed — rather, the issue is the legal ramifications of these facts — determination of whether acceleration was abandoned is appropriate on summary judgment.
. Plaintiffs Motion for Summary Judgment, Document No. 20, Exhibit 5 (Forbearance Agreement) [hereinafter Forbearance Agreement].
. Forbearance Agreement, supra note 4, at 3, ¶ 4.
.Specifically, the Forbearance Agreement explained,
This Agreement temporarily accepts reduced installments or maintains regular monthly payments as outlined in section 5 below. Upon successful completion of the Agreement, your loan will not be contractually current. Since the installments may be less than the total amount due you may still have outstanding payments and fees. Any outstanding payments and fees will be reviewed for a loan modification. If approved for a loan modification, based on investor guidelines, this will satisfy the remaining past due payments on your loan and we will send you a loan modification agreement. An additional contribution may be required.
Forbearance Agreement, supra note 4, at 3, ¶ 2.
. Forbearance Agreement, supra note 4, at 3, ¶ 3.
. Forbearance Agreement, supra note 4, at 3, ¶ 4.
. Forbearance Agreement, supra note 4, at 2.
. In addition to the Forbearance Agreement and payments, U.S. Bank contends abandonment of the original acceleration is evidenced by U.S. Bank issuing a second notice of acceleration, subsequent to the original acceleration at issue in this case. The Court does not need to reach the issue of whether the second notice of acceleration is evidence of abandonment because the Forbearance Agreement and payments — individually and collectively— are sufficient evidence of abandonment.
Likewise, the Court does not have to reach the issue of whether a noteholder such as U.S. Bank can unilaterally abandon acceleration because the Forbearance Agreement was agreed to by both Stewart and U.S. Bank, and
Reference
- Full Case Name
- Della STEWART v. U.S. BANK NATIONAL ASSOCIATION
- Cited By
- 5 cases
- Status
- Published