OPINIONThe main question in this appeal is whether a home-foreclosure action is barred by the statute of limitations. The borrower moved for summary judgment in the court below, arguing that the foreclosure action was untimely because it was filed more than four years after the lender accelerated the maturity date of the note. The lender filed a cross-motion for summary judgment, arguing that its action was timely because the prior acceleration had been abandoned. The trial court denied the borrower’s motion and granted the lender’s cross-motion. Because we conclude that neither movant established that it was entitled to judgment as a matter of law, we reverse the trial court’s judgment and remand the case for additional proceedings consistent with this opinion.BACKGROUNDThe borrower in this case is Gordon Swoboda, who in 2006 executed a thirty- year home equity note in the principal amount of $228,000. That note is secured by a deed of trust, which was made for the benefit of the lender and all of its successors and assigns. The current assignee of the deed of trust is U.S. Bank National Association, and the current servicer of the loan is Ocwen Loan Servicing, LLC. For ease of reference, we identify these entities and all of their predecessors as the “Bank.”Swoboda missed his monthly installment payment in April of 2008, and all payments thereafter. His default triggered a protracted history of litigation, which we condense into the following timeline: July 22, 2008—The Bank sends its first notice of acceleration, after having previously notified Swoboda of its intent to accelerate. August 22, 2008—The Bank files its first foreclosure petition in state court under Rule 736 of the Texas Rules of Civil Procedure. This petition is subsequently dismissed for want of prosecution. July 9, 2009—The Bank sends its second notice of acceleration. July 27, 2009—The Bank files its second foreclosure petition under Rule 736. This petition is also dismissed subsequently for want of prosecution. June 6, 2011—The Bank files its third foreclosure petition under Rule 736. The Bank subsequently nonsuits this petition. January 28, 2013—The Bank sends its third notice of acceleration. May 6, 2013—The Bank files its fourth foreclosure petition under Rule 736. Swoboda responds by filing an original petition in a separate cause number, seeking a stay and dismissal of the foreclosure action, as well as other forms of relief. The Bank removes that action to federal court because of diversity jurisdiction. The case stays there for nearly three years, until the federal court remands it back to state court after concluding that the Bank had not established complete diversity between the parties. Once back in state court, the parties filed the two motions for summary judgment that are the subject of this appeal. Swoboda argued, among other points in his motion, that the Bank’s latest foreclosure action, which began in 2013, was barred by the four-year statute of limitations because the action accrued nearly five years earlier with the 2008 notice of acceleration. The Bank argued in its cross- motion that its action was not time-barred because the Bank abandoned the acceleration through a series of events, which are discussed in greater detail below. The trial court denied Swoboda’s motion, granted the Bank’s cross-motion, and rendered a final judgment declaring that the lien on Swoboda’s property is foreclosed.Swoboda now appeals from that final judgment.STANDARD OF REVIEWWhen, as here, both parties move for summary judgment and the trial court grants one motion and denies the other, we consider all questions presented, examine all of the evidence, and render the judgment the trial court should have rendered. See Commr’s Court of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997).We review motions for summary judgment de novo. See Boerjan v. Rodriguez, 436 S.W.3d 307, 310 (Tex. 2014) (per curiam). To prevail on a traditional motion for summary judgment, the movant must show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). If the movant produces evidence that conclusively establishes its right to summary judgment, then the burden of proof shifts to the nonmovant to present evidence sufficient to raise a fact issue. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). When deciding whether a fact issue has been raised, we consider all of the evidence in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant’s favor. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).STATUTE OF LIMITATIONS AND ABANDONMENT OF ACCELERATIONA lender must bring suit to foreclose on a real property lien “not later than four years after the day the cause of action accrues.” See Tex. Civ. Prac. & Rem. Code § 16.035(a). As a general rule, the accrual date is the maturity date of the note, rather than the earlier date of the borrower’s default. Id. § 16.035(e). But there is an exception to that rule: If the real property lien contains an optional acceleration clause, as the deed of trust does here, then the cause of action accrues when the lender exercises its option to accelerate the maturity date of the note. See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001).Once a lender has accelerated the maturity date of the note, the lender can restore the original maturity date—and therefore reset the running of limitations— by abandoning the acceleration as though it had never happened. Id. at 566-67. Abandonment is based on the concept of waiver, which requires the showing of three elements: (1) the party has an existing right; (2) the party has actual knowledge of the right; and (3) the party actually intends to relinquish the right, or engages in intentional conduct inconsistent with the right. See Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 2008). Intent is the critical element, and its manifestation must be unequivocal. See Thompson v. Bank of Am. Nat ‘l Ass ‘n, 783 F.3d 1022, 1025 (5th Cir. 2015).The best means of achieving an abandonment is through written notice of rescission. See Tex. Civ. Prac. & Rem. Code § 16.038(a) (providing for this method); Sexton v. Deutsche BankNat’l Trust Co., 731 Fed. App’x 302, 308 (5th Cir. 2018) (per curiam) (describing this method as “a best practice”). But that method is not exclusive. See Tex. Civ. Prac. & Rem. Code § 16.038(e). Abandonment can also be accomplished through an agreement between the parties or through other joint actions. See Khan v. GBAKProps., Inc., 371 S.W.3d 347, 353 (Tex. App.— Houston [1st Dist.] 2012, no pet.). For example, abandonment is considered complete when the borrower resumes making installment payments after an event of default and the lender accepts those payments without exacting any remedies available to it despite a previously declared acceleration. See Holy Cross Church, 44 S.W.3d at 566-67.Whether a lender has abandoned an acceleration is generally a question of fact. See Residential Credit Sols., Inc. v. Burg, No. 01-15-00067-CV, 2016 WL 3162205, at *3 (Tex. App.—Houston [1st Dist.] June 2, 2016, no pet.) (mem. op.). But when the facts are admitted or clearly established, abandonment may sometimes be determined as a matter of law. See Bracken v. Wells Fargo Bank, N.A., No. 05- 16-01334-CV, 2018 WL 1026268, at *5 (Tex. App.—Dallas Feb. 23, 2018, pet. denied) (mem. op.); e.g., Holy Cross Church, 44 S.W.3d at 566-67.THE BANK’S MOTIONIf the Bank abandoned its 2008 acceleration, then the next earliest date on which its cause of action could have accrued was July 9, 2009, when the Bank sent its second notice of acceleration. That second notice predates the Bank’s latest foreclosure action by less than four years, which means that the action would not be barred by limitations, assuming that the earlier abandonment actually occurred.The Bank argued in its cross-motion for summary judgment that the evidence conclusively established an abandonment of the 2008 acceleration. In support of that argument, the Bank relied on four categories of evidence. We examine each category in turn.A. The Loan Modification AgreementIn October of2008, the Bank notified Swoboda that he had been pre-approved for a loan modification program. The notice informed Swoboda that if he signed an attached loan modification agreement (“LMA”) and returned a down payment, then his account would become current immediately, all outstanding late charges would be waived, and his monthly payments and interest rate would be reduced going forward. The notice included the following warning: “The loan modification will not be complete until we receive the documents properly executed and the down payment. Until the modification is completed, we will continue to enforce our lien. If the conditions outlined above are not satisfied, the modification offer will be withdrawn.”Swoboda responded to the Bank by fax, stating in a cover letter that he accepted the LMA, but he requested certain changes to the contract itself. Swoboda did not sign the LMA or make the required down payment.In January of2009, the Bank notified Swoboda of a revised LMA. This notice contained the same warning as before, stating that the Bank would continue to enforce its lien unless the LMA was signed and the down payment was received. Swoboda signed the LMA as required, but he did not make the down payment, and the LMA was never implemented.The Bank argues that it is entitled to judgment on the basis of the LMA, even though it was never implemented, because there are authorities that hold that the enforceability of an agreement is irrelevant for purposes of showing that an abandonment has occurred. See, e.g., Snowden v. Deutsche BankNat’l Trust Co., No. H-14-2963, 2015 WL 5123436, at *3 (S.D. Tex. Aug. 31, 2015); Mendoza v. Wells Fargo Bank, N.A., No. H-14-554, 2015 WL 338909, at *4 (S.D. Tex. Jan. 23, 2015); In re Rosas, 520 B.R. 534, 542 (W.D. Tex. 2014). But those authorities are distinguishable because the borrower in each case remitted post-acceleration payments that were accepted by the lender, meaning that the abandonment was established under the rule set forth in Holy Cross Church. By contrast, Swoboda remitted no such payments.The Bank also argues that the mere offer of the LMA is enough to conclusively establish that the Bank abandoned the 2008 acceleration. But the problem with this argument is that the Bank’s offers did not unequivocally manifest an abandonment. The offers were attached to notices that warned Swoboda that the Bank would continue to enforce its lien until certain conditions were met. Those notices raise a genuine issue of material fact as to whether the Bank had actually abandoned the prior acceleration. See Pitts v. Bank of N.Y. Mellon Trust Co., —S.W.3d —, 2018 WL 6716933, at *6 (Tex. App.—Dallas Dec. 21, 2018, no pet.) (holding that language in a notice that a foreclosure action remained pending raised a fact question as to whether the prior acceleration had been abandoned).B. The June 15, 2009 StatementThe Bank’s next argument relies on a monthly mortgage statement and on case law from the Fifth Circuit. We begin by addressing the case law.According to the Fifth Circuit, abandonment is conclusively established when the lender sends the borrower a post-acceleration mortgage statement that requests a lesser payment than the entire accelerated balance. See Ocwen Loan Serv., L.L.C. v. REOAM, L.L.C., 755 Fed. App’x 354, 356-57 (5th Cir. 2018) (per curiam). The lender’s request for the lesser payment is sufficient by itself to complete the abandonment; no receipt of payment from the borrower is actually required. See Leonard v. Ocwen Loan Serv., L.L.C., 616 Fed. App’x 677, 680 (5th Cir. 2015) (per curiam). This rule originates from an “Erie guess” that the “Texas Supreme Court would likely hold that a lender may unilaterally abandon acceleration of a note . . . by sending notice to the borrower that the lender is no longer seeking to collect the full balance of the loan and will permit the borrower to cure its default by providing sufficient payment to bring the note current under its original terms.” See Boren v. U.S. Nat’l BankAss’n, 807 F.3d 99, 105 (5th Cir. 2015).To our knowledge, the Texas Supreme Court has not yet answered whether abandonment is established as a matter of law by a post-acceleration mortgage statement requesting partial payment of the note. Our court has not yet spoken on that issue either, though we are aware that other Texas courts of appeals have applied the Fifth Circuit’s rule. See Brannick v. Aurora Loan Servs., LLC, No. 03-17-00308, at *3 (Tex. App.—Austin Nov. 2, 2018, no pet. h.) (mem. op.); NSL Prop. Holdings, LLC v. Nationstar Mortg., LLC, No. 02-16-00397-CV, 2017 WL 3526354, at *5 (Tex. App.—Fort Worth Aug. 17, 2017, pet. denied) (mem. op.).We, of course, are not obligated to follow the Fifth Circuit, even on questions of federal law. See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993) (per curiam). But for the sake of argument, we will assume without deciding that the Fifth Circuit’s rule accurately reflects the law in Texas.Now turning to the evidence, the Bank argues that it sent Swoboda a post- acceleration mortgage statement that satisfies the Fifth Circuit’s rule. The statement, as it appears in our record, is just a single page in length. It has a notice about a bankruptcy filing. It itemizes the account activity since the last statement. And it contains two boxes of information, which we reproduce here:Account InformationAccount Number[redacted]Current Statement DateJune 15, 2009Maturity DateAugust 01, 2036Interest Rate9.40000Current Principal Balance$224,960.66Current Escrow Balance$23,108.67-Interest Paid Year-to-Date$0.00Taxes Paid Year-to-Date$0.00
