Filed: Aug. 19, 2019
Latest Update: Mar. 03, 2020
Summary: Case: 19-20021 Document: 00515081124 Page: 1 Date Filed: 08/19/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 19-20021 Summary Calendar United States Court of Appeals Fifth Circuit FILED August 19, 2019 CANDIDO H. ALVARADO, Lyle W. Cayce Clerk Plaintiff-Third Party Defendant - Appellant v. CITIBANK, N.A., as Trustee, Defendant-Third Party Plaintiff - Appellee Appeal from the United States District Court for the Southern District of Texas USDC No. 4:17-CV-2311 Before KING, S
Summary: Case: 19-20021 Document: 00515081124 Page: 1 Date Filed: 08/19/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 19-20021 Summary Calendar United States Court of Appeals Fifth Circuit FILED August 19, 2019 CANDIDO H. ALVARADO, Lyle W. Cayce Clerk Plaintiff-Third Party Defendant - Appellant v. CITIBANK, N.A., as Trustee, Defendant-Third Party Plaintiff - Appellee Appeal from the United States District Court for the Southern District of Texas USDC No. 4:17-CV-2311 Before KING, SO..
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Case: 19-20021 Document: 00515081124 Page: 1 Date Filed: 08/19/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 19-20021
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
August 19, 2019
CANDIDO H. ALVARADO,
Lyle W. Cayce
Clerk
Plaintiff-Third Party Defendant - Appellant
v.
CITIBANK, N.A., as Trustee,
Defendant-Third Party Plaintiff - Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CV-2311
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
Candido H. Alvarado appeals the summary judgment issued in favor of
Citibank, N.A. in a foreclosure action. We AFFIRM.
Alvarado and his then wife, Carol Alvarado, took out a home equity loan
from Washington Mutual Bank in 2007. After the Alvarados divorced in 2008,
they attempted to transfer the ex-wife’s rights in the property to the ex-
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-20021
husband. The transfer agreement, though, was never countersigned by
Washington Mutual. In 2010, the loan was transferred to Citibank.
In July 2009, the Alvarados stopped making payments on the home loan.
In 2011, Citibank sent a notice of acceleration through its servicing agent at
the time, Chase. In 2012, Citibank sent a notice of default that stated that if
the default were not timely cured by paying the amount in arrears, the debt
would be accelerated in the future, thereby providing notice that the loan was
no longer accelerated. In 2013, Citibank sent another notice of default stating
that if the amounts past due were not paid, it would accelerate the loan and
institute foreclosure proceedings. No payments were made, and the loan was
accelerated. Mr. Alvarado brought suit to stop the foreclosure, leading to the
dismissal of Citibank’s application for non-judicial foreclosure. Then in May
2015, Citibank recorded a “Rescission and Abandonment of Acceleration” in
the real property records of Harris County, Texas. In October 2015, Citibank
again sought non-judicial foreclosure; Mr. Alvarado brought suit, and the
application for non-judicial foreclosure was again dismissed. At no time,
though, was the loan brought current.
The current iteration of the dispute began with a notice of default on
October 17, 2016, followed on December 28, 2016, by a notice of acceleration of
the loan. Mr. Alvarado brought suit in Texas state court on June 2, 2017,
seeking a declaratory judgment that no foreclosure could be conducted.
Citibank removed the case to the United States District Court for the Southern
District of Texas and counterclaimed for judicial foreclosure.
Citibank filed for summary judgment. The district court held that the
four-year statute of limitations for a foreclosure in Texas was no barrier here
and granted the bank’s motion for foreclosure. The district court also found
that regardless of whether Carol Alvarado transferred her interest in the
property to her ex-husband, she was bound by the original security agreement
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No. 19-20021
and was not released from payment obligations. The district court also found
that Mr. Alvarado did not have standing to sue under the pooling service
agreement for the mortgage.
We review the district court’s grant of summary judgment de novo,
looking to see if there is any genuine dispute of material fact and whether the
moving party is entitled to judgment as a matter of law. Waste Mgmt. of La.,
L.L.C. v. River Birch, Inc., 920 F.3d 958, 964 (5th Cir. 2019).
Mr. Alvarado claims that Citibank’s foreclosure action is outside the
four-year statute of limitations because in 2011 the loan servicer issued an
acceleration notice. “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) (alteration in original) (quoting TEX. CIV. PRAC. & REM. CODE
§ 16.035(a)). Mr. Alvarado claims that because an acceleration notice was sent
in 2011, this action is outside the statute of limitations. However, a lender
may abandon acceleration by sending a later notice “to the borrower that the
lender is no longer seeking to collect the full balance of the loan” and instead
permitting the borrower to pay the amount in arrears.
Id. at 105. Citibank
sent multiple notices within the four-year statute of limitations from the 2011
acceleration notice indicating its abandonment of the acceleration by
requesting only the amount in arrears and also demonstrated its abandonment
through its official filing in the real property records of Harris County.
Mr. Alvarado also argues that the district court erred in finding that his
ex-wife remained a party to the loan and therefore a proper party to the
proceeding. Mr. Alvarado claims that the parties signed a transfer agreement
with Washington Mutual so that he would be the sole responsible party.
However, as the district court noted, the transfer agreement was not
countersigned, and even if it was, the transfer agreement explicitly stated that
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No. 19-20021
Carol Alvarado would remain liable under the original security instrument.
Because we apply the plain language of the contract, the district court did not
err in refusing to dismiss Carol Alvarado. See Delta Seaboard Well Servs., Inc.
v. Am. Int’l Specialty Lines Ins. Co., 602 F.3d 340, 343 (5th Cir. 2010) (stating
that we give effect to the plain language of a contract).
Mr. Alvarado argues that his due process rights were violated because
the district court did not hold a hearing and there was no jury trial. It is clear,
though, that summary judgment procedures under Federal Rule of Civil
Procedure 56 satisfy due process. Cf. Celotex Corp. v. Catrett, 477 U.S. 317,
327 (1986). Furthermore, a hearing is not required under Rule 56, nor do we
find in the record that Mr. Alvarado requested one. The district court’s
summary judgment decision therefore did not violate Mr. Alvarado’s due
process rights.
Finally, Mr. Alvarado claims that the assignment of Washington
Mutual’s original mortgage note to Chase, and subsequently Citibank, violates
the pooling service agreement. Mr. Alvarado therefore claims that Citibank
has no authority to enforce the loan. Mr. Alvarado, though, does not provide
any evidence or argument suggesting that he was an intended third-party
beneficiary or party to the pooling service agreement, and he therefore has no
standing to assert the claim. Reinagel v. Deutsche Bank Nat’l Trust Co., 735
F.3d 220, 224-25 (5th Cir. 2013).
AFFIRMED.
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