Case: 18-50707      Document: 00515082023         Page: 1    Date Filed: 08/19/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                    No. 18-50707
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                        August 19, 2019
                                                                           Lyle W. Cayce
JOHN MARSH; INGRID MARSH,                                                       Clerk


              Plaintiffs-Appellants,

v.

U.S. BANK, N.A., as Successor Trustee to LaSalle Bank National Association
on Behalf of the Holders of Bear Stearns Asset Backed Securities I Trust
2005-HE12, Asset Backed Certificates Series 2005-HE1; DEBORAH
MARTIN,

              Defendants-Appellees.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:17-CV-847


Before JONES, WILLETT, and OLDHAM, Circuit Judges.
PER CURIAM:*
       U.S. Bank foreclosed on the Marshes’ property. The Marshes argue it
did so after the expiration of the limitations period for the bank’s lien. The
magistrate judge issued two cogent, thorough, and well-reasoned reports and
recommended granting summary judgment to U.S. Bank. The district court
agreed and so do we. We affirm.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-50707
      We review a district court’s decision to grant summary judgment de novo.
Martins v. BAC Home Loans Servicing, L.P., 

, 252 (5th Cir. 2013).
Summary judgment is proper whenever the “movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 

, 322 (1986).
      In this diversity case, Texas law controls the limitations issue. Under
Texas law, “a lienholder must foreclose on, and sell, encumbered property no
later than four years after the claim accrues.” Sexton v. Deutsche Bank Natl
Tr. Co., 731 F. App’x 302, 305 (5th Cir. 2018) (per curiam) (citing TEX. CIV.
PRAC. & REM. CODE § 16.035(b)). As relevant here, a claim accrues “when the
lienholder exercises its option to accelerate [the loan].” Id.; see Holy Cross
Church of God in Christ v. Wolf, 

, 566 (Tex. 2001) (explaining
the claim accrues “when the holder actually exercises its option to accelerate”).
If a lienholder accelerates the loan and the four-year limitations period expires,
“the real property lien and a power of sale to enforce the real property lien
become void.” TEX. CIV. PRAC. & REM. CODE § 16.035(d).
      But a lienholder can unilaterally abandon its acceleration before the
statute of limitations expires. See, e.g., DeFranceschi v. Seterus, Inc., 731 F.
App’x 309, 311 (5th Cir. 2018); Boren v. U.S. Nat’l Bank Ass’n, 

, 105
(5th Cir. 2015); 

–57. And abandonment of acceleration
restores the loan’s original maturity date, which means “the noteholder is no
longer required to foreclose within four years from the date of acceleration.”
Leonard v. Ocwen Loan Servicing, L.L.C., 616 F. App’x 677, 679 (5th Cir. 2015)
(per curiam).
      To determine whether a noteholder abandoned its acceleration, Texas
courts refer “to traditional principles of waiver.” DeFranceschi, 731 F. App’x
at 311. “A plain example of waiver is where the lender put[s] the debtor on
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                                 No. 18-50707
notice of its abandonment . . . by requesting payment on less than the full
amount of the loan.” 

original) (quotation omitted).
      U.S. Bank abandoned any prior acceleration here. The Marshes contend
they received a “Notice of Acceleration” on May 10, 2012. Then on May 26,
2015, U.S. Bank sent a “Default Notice” to the Marshes. It requested payment
of past due amounts to cure the default; it did not demand repayment of the
full amount due on the loan. Because the 2015 Default Notice “unequivocally
manifested an intent to abandon the previous acceleration and provided the
[Marshes] with an opportunity to avoid foreclosure if they cured their
arrearage,” U.S. Bank abandoned the 2012 acceleration. 

; see also DeFranceschi, 731 F. App’x at 311–12.        As a result of this
abandonment, “the statute of limitations period under § 16.035(a) ceased to
run.” 

.
      U.S. Bank triggered a new statute of limitations period when it sent a
new “Notice of Acceleration” on February 27, 2017. See 

sale occurred that same year, well within § 16.035’s four-year limitations
period.   Accordingly, U.S. Bank’s lien was still valid at the time of the
foreclosure sale.
      AFFIRMED.




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