Case: 18-10938      Document: 00514799139         Page: 1    Date Filed: 01/17/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-10938                      United States Court of Appeals

                                  Summary Calendar
                                                                               Fifth Circuit

                                                                             FILED
                                                                      January 17, 2019

RYAN LEE LYONS; CRYSTAL LYNETTE LYONS,                                  Lyle W. Cayce
                                                                             Clerk
              Plaintiffs - Appellants

v.

SELECT PORTFOLIO SERVICING INCORPORATED; DEUTSCHE BANK
NATIONAL TRUST COMPANY, as Trustee, in Trust for Registered Holders
of Long Beach Mortgage Loan Trust 2006-WL1, Asset-Backed Certificates,
Series 2006-WL1,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CV-3380


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Ryan and Crystal Lyons stopped paying their mortgage and the
mortgagee, represented by Select Portfolio Servicing Inc., subsequently
foreclosed. (For simplicity, we call the mortgagee and Select Portfolio Servicing



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10938
Inc. collectively “the Bank.”)   The Lyonses sued, asserting that the Bank
abandoned any attempt to accelerate the balance due on their loan.           We
disagree and AFFIRM the district court’s judgment.
      The Lyonses purchased a home in 2005, executing a deed of trust and
note for $194,846.00 to finance the purchase. Sometime after, they stopped
making payments on the note.
      In November 2015, the Bank sent three communications to the Lyonses.
The first was a notice of acceleration. It informed the Lyonses that the Bank
was accelerating “all sums due under the Note,” which the Bank was entitled
to do under the terms of the note and deed of trust. The notice also told the
Lyonses that the Bank had scheduled a foreclosure sale of the home for
December 1st.
      Two days later, the Bank sent a typical mortgage statement.           The
statement included a disclaimer that it was “not an attempt to collect a debt”
and was “sent for informational purposes only.”      As mortgage statements
usually do, the statement included information about the amount of
outstanding principal: $180,234.48. It also included a statement of other fees
associated with the mortgage, which with the principal totaled $228,690.15.
      A week later, the Bank sent the third communication, a notice of
reinstatement.   It told the Lyonses that if they would pay their past-due
amounts, as well as certain associated fees, their loan could be returned to its
pre-acceleration status.   The total amount due to reinstate the loan was
$67,581.72.
      The Lyonses did not pay the reinstatement amount, the amount of the
fully accelerated loan, or any other amount of money. Deutsche Bank National
Trust Company purchased the property at the foreclosure sale for $217,175.00.
      Nearly two years later, the Lyonses sued Select Portfolio Servicing Inc.
and Deutsche Bank for breach of contract, money had and received, unjust
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                                 No. 18-10938
enrichment, and wrongful foreclosure. The district court granted judgment on
the pleadings, concluding that none of the Lyonses’ claims had merit. After a
de novo review, we agree with the district court. See Gentilello v. Rege, 

, 543 (5th Cir. 2010) (applying de novo review to judgment on the
pleadings).
      As the Lyonses have pleaded them, each claim depends on the mistaken
theory that the Bank abandoned its attempt to accelerate the loan. They
concede that the notice of acceleration was valid. But they argue that the
monthly    mortgage    statement    and     reinstatement     notice   abandoned
acceleration, citing various Texas cases. See, e.g., Boren v. U.S. Nat’l Bank
Ass’n, 

(5th Cir. 2015). In those cases, a mortgagee accelerated a
loan under the terms of the note and deed of trust but later “manifested an
intent to abandon [the] previous acceleration.” 

      In this case, the Bank never wavered from accelerating the loan. It
“continuously pursued . . . full payment on the note or to foreclose upon the
property.” See Fitzgerald v. Harry, No. 2-02-330-CV, 

, at *5
(Tex. App.—Fort Worth Sept. 18, 2003, no pet.) (mem. op.); see also Bank of
N.Y. Mellon v. Maniscalco, No. 1:15-CV-035, 

, at *3 (E.D.
Tex. Mar. 3, 2016) (concluding that a reinstatement notice that is silent
regarding acceleration does not manifest an intent to abandon acceleration).
It thus did not abandon acceleration.
      The Lyonses believe the Bank abandoned acceleration because the
monthly mortgage statement and reinstatement notice referenced different
amounts from the original loan amount.         This argument is built on two
mistaken assumptions. First, it assumes that the acceleration notice was for
only the original loan amount.     But the deed of trust granted the Bank
authority to accelerate “the sums secured by” the deed of trust, which includes
interest and other fees. Second, it assumes that the amounts referenced in the
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                                    No. 18-10938
mortgage statement and reinstatement notice were modifications to the
acceleration amount.     But the amounts in the mortgage statement and
reinstatement notice unambiguously refer to different calculations, not the
acceleration amount.    The documents also explicitly state they were sent
purely for informational purposes, not in an attempt to collect any debt. The
alleged conduct is thus unlike those instances when a bank explicitly stated it
was abandoning acceleration or acted so inconsistently that it could be
construed to have abandoned acceleration. See Pitts v. Bank of N.Y. Mellon
Trust Co., N.A, No. 05-17-00859-CV, 

, at *4–6 (Tex. App.—
Dallas Dec. 21, 2018, no pet. h.) (collecting cases where a bank had abandoned
acceleration and concluding that sending delinquency notices that referenced
foreclosure followed by subsequent notices without any mention of foreclosure
created a genuine issue of material fact regarding abandonment). The Lyonses
have not alleged that the Bank sent any other letters, nor have they identified
any parts of the two documents from which a court could plausibly infer
abandonment.
      Because the Lyonses acknowledge that all their claims depend on the
Bank improperly accelerating and because we determine that acceleration was
proper, the Lyonses’ claims fail.
      AFFIRMED.




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