ORDERS ON PETITIONS FOR REVIEW
THE FOLLOWING PETITIONS FOR REVIEW ARE DENIED:
21-0854
REAGAN FLOREY AND NEILA FLOREY, INDIVIDUALLY AND AS TRUSTEES FOR THE MERCEDES 2004 TRUST # 6438 v. U.S. BANK NATIONAL ASSOCIATION, TRUSTEE FOR THE RMAC TRUST, SERIES 2016-CCT AND NATIONSTAR MORTGAGE, L.L.C.; from Dallas County; 5th Court of Appeals District (05-20-00306-CV, ___ SW3d ___, 06-21-21)
FRIDAY, JAN 21, 2022
STATEMENT OF THE CASE
Nature of the case:
Borrower statute of limitations challenge to foreclosure.
Trial court:
Hon. Maricela Moore, 162nd District Court of Dallas County, Texas.
Trial court disposition:
On cross-motions for summary judgment, the trial court denied the borrowers’ MSJ and granted the MSJ’s of the defendant lenders. Tab A. The final judgment dismissed the borrowers’ quiet title claim and rendered judgment for the lender, allowing foreclosure. Tab B.
Court of Appeals’ Disposition:
The Dallas Fifth Court of Appeals affirmed without oral argument in an opinion by Justice Reichek.
2021 WL 2525457 (Tex. App. – Dallas June 21, 2021). Tab C.
Rehearing:
The motion for rehearing, Tab D, was denied,Tab E.
STATEMENT OF JURISDICTION
Inherent importance: The court of appeals announced a novel rule that a borrower’s contractual right – even if never exercised – to prepay a mortgage abandons the lender’s acceleration of the maturity date of the loan. This wreaks havoc on Texas foreclosure law because (1) such prepayment rights are ubiquitous and (2) it is federal law, not lender discretion, which results in monthly statements which inform borrowers of their loan’s prepayment terms. Tex. Gov’t Code § 22.001.
Conflict among the lower courts: This case also presents an issue which has percolated for years in Texas state and federal courts: whether a lender’s abandonment of acceleration requires the lender to issue a new notice of default (a.k.a. notice of intent to accelerate) before again seeking to foreclose. The decision below, even if dicta as appears to be the case, conflicts with state and federal precedent and needs to be addressed in some fashion. Id.
ISSUES PRESENTED
1. Mortgage loans often allow a borrower to prepay principal without penalty, and federal law requires monthly statements to recite the loan’s prepayment terms. The court of appeals, sua sponte, held that a loan’s right to prepay without penalty abandons any lender acceleration of the maturity date.
Does a mortgage loan provision allowing a borrower to prepay without penalty automatically abandon any lender acceleration of the loan, whether the lender wants to abandon it or not?
2. Conditional issue: Does the notice of default which precedes the acceleration of a mortgage’s maturity date remain live if the acceleration is abandoned, thereby allowing the lender to foreclose at will?
STATEMENT OF FACTS
I. The Floreys’ mortgage allows prepayment of principal without penalty.
The Floreys’ mortgage loan allowed them to pay down principal without penalty before the loan’s maturity date.1
Separately, federal law requires monthly billing statements for a residential mortgage to describe “[t]he amount of any prepayment fee to be charged, if any.”2
The Floreys received such monthly billing statements which recited the prepayment right contained in their loan.3
The Floreys had defaulted as of September 6, 2013, and the Lender accelerated the maturity date of the loan on December 19, 2013.4
The Floreys made no payments after that.5
The Lender noticed default again six years later, on September 10, 2019.6
The Floreys sued to quiet title based on the expiration, in 2018, of the four-year statute of limitations on the Lender’s power to foreclose.7 The Lender counterclaimed for an order to foreclose based not on its 2013 notices, but on its 2019 notice of default.8
1 RR341 (Note ¶ 4)
(“I have the right to make payments of Principal at any time before they are due. When l make a Prepayment, I will tell the Note Holder in writing that I am doing so. I may not designate a payment as a Prepayment if I have not made all the monthly payments due under the Note. I may make a full Prepayment or partial Prepayments without paying a Prepayment charge.”).
2 See 15 U.S.C. § 1638(f)
(requirements for monthly residential mortgage loan statements).
3 CR369
(“Nationstar Mortgage LLC will not assess a prepayment penalty at any time in the event you would like to pay part or all of your mortgage balance.”).
4 Id.
5 CR113, 124
(2019 Lender foreclosure application and affidavit swearing that all payments from November 1, 2011 onward were due).
6 2021 WL 2525457, at *2.
7 The Floreys have a home equity loan for which there is no personal liability on the note; foreclosure is the Lender’s only means of collecting arrears.
See Tex. Const. art. XVI, § 50(a)(6)(C).
8 CR292 (counterclaim ¶¶ 11-12). The counterclaim constitutes the newer acceleration.
See Smither v. Ditech Fin., L.L.C., 681 Fed. Appx. 347, 352 (5th Cir. 2017)
(“Once the requisite notice of intent is provided, notice of acceleration may take the form of the filing of a foreclosure action.”);
Burney v. Citigroup Glob. Markets Realty Corp., 244 S.W.3d 900, 904 (Tex. App.—Dallas 2008, no pet.)
(“[N]otice of filing an expedited application for foreclosure after the requisite notice of intent to accelerate is sufficient to constitute notice of acceleration.”).
II. The Floreys showed that the Lender never abandoned acceleration.
At summary judgment, the Floreys showed without controverting evidence two dispositive facts:
1. After the acceleration of December 19, 2013, the Lender swore in expedited foreclosure proceedings in 2017 and 2019 – dates bracketing the expiration of limitations in 20189 – that it was seeking foreclosure premised on the notice of default of September 6, 2013.
By implication under both longstanding law and directly- on-point federal precedent predicting how this Court would rule, that logically meant the Lender was relying on the acceleration of December 19, 2013, which would be impossible had the lender abandoned that acceleration.
The relevant chronology is as follows:
9 An uncontested tolling period extended the four-year limitations period by several months. 2021 WL 2525457, at *2.
Date Evidence
9/6/13 Notice Of Default
12/19/13 Notice Of Acceleration
12/27/13 Lender files for foreclosure based on 9/6/13 notice of default and 12/19/13 notice of acceleration.
1/14-10/17 Lender sends monthly statements.
8/10/17 Lender files for foreclosure based on 9/6/13 notice of default.10
7/28/18 Limitations presumptively expires.
11/17-12/18 Lender sends monthly statements.
1/15/19 Lender files for foreclosure based on 9/6/13 notice of default.
1/19-4/19 Lender monthly statements.
9/10/19 Notice of Default
2. Documents in the record (monthly statements and reinstatement quotes) which the Lender contends show that it abandoned the 2013 acceleration actually overlapped with the 2017 and 2019 expedited foreclosure
These overlapping periods are indicated by the black ovals below:
10 The 2017 foreclosure proceeding was dismissed on May 25, 2018. CR225-234.
III. The Lender responds with legal arguments justifying foreclosure at will for years on end.
The Lender responded with two legal arguments intended to render the foregoing facts immaterial and permit the Lender to foreclose at will after September 6, 2013:
1. The September 6, 2013 notice of default remained in force after the Lender abandoned the December 19, 2013 acceleration.
2. The Lender’s 2017 and 2019 expedited foreclosure proceedings, which expressly relied on the September 6, 2013 notice of default, were new and independent accelerations based on the 2013 notice of default.
IV. The court of appeals affirms on grounds never asserted by the Lender.
On cross-motions for summary judgment, the trial court dismissed the Floreys’ quiet title case and rendered judgment allowing the Lender to foreclose.11
The court of appeals affirmed, but on grounds which the Lender never raised and which were never briefed. The court of appeals held, sua sponte, that because some of the monthly loan statements after December 19, 2013 recited the Floreys’ right to prepay principal without penalty, the acceleration of December 19, 2013 was abandoned.12
Citing no direct authority and apparently without considering that the right to prepay was in the note, and not in just the monthly statements, the court of appeals held that “[a] notice regarding optional, voluntary prepayment of part or all of the mortgage balance is clearly antithetical to acceleration of the loan.”13
The remainder of the opinion below is dicta. As the court of appeals noted, the Lender noticed default anew on September 10, 2019 and is seeking foreclosure on that basis.
Logically, if the monthly statements between 2014 and 2016 which contained the prepayment language abandoned the 2013 acceleration, there was nothing else to decide; the Lender would foreclose based on the 2019 notice of default instead of the one from 2013.
11 Tab A.
12 2021 WL 2525457, at *4.
13 Id.
Nevertheless, the court of appeals addressed the obvious problem that the Lender swore reliance on the 2013 notice of default in the 2017 and 2019 foreclosure proceedings.
The problem is this: if the Lender’s abandonment of the December 2013 acceleration required a new notice of default before foreclosure could occur (as held by every court decision up to that time), the 2017 and 2019 foreclosure filings could not be valid accelerations; there would be no predicate notice of default for either of those accelerations.
The six-year gap in the chronology between notices of default points this up clearly.
The court of appeals didn’t need to reach that issue, but it did. Concluded the court of appeals:
“The applications for expedited foreclosure [of 2017 and 2019] by themselves constituted notices of acceleration.”14
This strongly-worded dicta brings to the fore an important question of Texas law.
If a notice of default survives an abandoned acceleration, lenders can notice a default once and then foreclose at will forever, without returning the loan to a pre-default state.
V. The Floreys seek rehearing and are denied.
The Floreys sought rehearing on the basis that the court of appeals had made a mistake: it is the loan itself, and not the Lender’s monthly statements, which allowed the Floreys to prepay principal without penalty.
14 2021 WL 2525457, at *5.
The monthly statements merely satisfied federal law by informing the Floreys of the loan’s black-and-white prepayment terms.
Logically, the Floreys contended, it is impossible for a loan to continually thwart acceleration by the mere existence of a contingent borrower right. Nevertheless, the court of appeals summarily denied rehearing.
SUMMARY OF THE ARGUMENT
The court of appeals was mistaken in concluding that it was the lender’s monthly statements which allowed the Floreys to prepay without penalty: it is the original loan which creates that right, and federal law requires monthly statements to recite it. The holding below amounts to a holding that a mortgage loan’s prepayment clause defeats the loan’s acceleration clause. And because the borrower’s prepayment right exists throughout the life of the loan, if its mere existence abandons acceleration, then acceleration is continually undone once noticed. The holding below is without precedent and will generate needless skirmishing and litigation throughout the state.
In any event, a borrower’s right to prepay principal is consistent with acceleration.
Prepayment is necessarily a pre-acceleration right because acceleration of the loan’s maturity date cuts off the payment schedule, rendering the concept of “prepayment of principal” irrelevant.
Even on the unique facts of this case, however, the Floreys had no prepayment right.
The loan’s prepayment clause deprived the Floreys of any prepayment right because they were behind on payments.
Such clear and profound error should be reversed.
Also specific to this case, at least one monthly statement reciting the prepayment right the court of appeals relied upon overlapped with lender foreclosure proceedings, defeating any idea that the lender intended the repayment right to abandon acceleration.
Finally, in dicta the court of appeals held that a specific notice of default survives a lender’s abandonment of the acceleration which follows.
That holding conflicts with an important Fifth Circuit Erie guess which will be looked to by Texas courts, as well with as other state and federal cases.
It also conflicts with the tenor of black-letter law which says that a lender’s abandonment of acceleration returns a mortgage loan to a non-default state.
The court of appeals’ holding on this score, even though dicta, opens the door to lender flouting of the requirement of timely foreclosure after a borrower default.
ARGUMENT
The court of appeals’ decision is unprecedented in holding that a borrower’s right to prepay principal without penalty abandons any acceleration of the maturity date of the loan.
That holding will wreak havoc by allowing both borrowers and lenders to strategically invoke the rule to thwart foreclosures. It should be taken up and reversed before it spawns unnecessary new lawsuits.
The court of appeals’ dicta that a notice of default survives abandonment of acceleration either needs to be declared dicta by the Court so that it does no harm or else affirmatively taken up and resolved so that the issue can be put to bed.
I. If a note’s prepayment terms abandon acceleration, acceleration remains abandoned.
At the most basic level, the rule that a borrower’s right to prepay without penalty abandons acceleration means that acceleration is continually undone. After all, the rights and obligations contained in the note are always there in ink during the life of the loan.
The mistake the court of appeals made – and then refused to correct by granting rehearing – is that the right to prepay without penalty does not arise from a lender’s monthly statements, but from the original loan note.
Besides that, federal law requires monthly statements to inform the borrower of the note’s prepayment terms, so the court of appeals has, in effect, held that it is federal law which forces abandonment of acceleration.
There is no precedent for this result, and it will generate confusion and uncertainty statewide.
The result here happens to favor a lender over a borrower, but borrowers, too, seek to undo acceleration and thereby thwart imminent foreclosure.15
Borrowers can now do that over and over.16
15 See, e.g., Fitzgerald v. Harry, No. 2-02-330-CV, 2003 WL 22147557, at *4 (Tex. App. – Fort Worth Sept. 18, 2003, no pet.).
16 There are also cases where lenders seek to prevail over other lenders in a lien- priority situation by claiming abandonment of acceleration.
See, e.g., NSL Prop. Holdings, LLC v. Nationstar Mortg., LLC, No. 02-16-00397-CV, 2017 WL 3526354, at *1 (Tex. App. – Fort Worth Aug. 17, 2017, pet. denied)
(“the paradoxical scenario of a party claiming that it has waived or abandoned its own right”).
All any party has to do to thwart a looming foreclosure is point to a penalty-free prepayment right in the note.17 In fact, it is hard to see how foreclosure can proceed at all – even the one at issue here – under the court of appeals’ analysis since any acceleration is continually undermined by the mere existence of the borrower’s right to prepay without penalty.
The Affiliated Capital case cited by the court of appeals does not address whether a borrower’s right to prepay abandons acceleration.
To the contrary, the court there interpreted the borrower’s right to prepay as distinct from the acceleration clause and strived to give effect to both clauses – exactly the opposite of what the court below did in defeating the acceleration clause of the Floreys’ loan.
II. A borrower’s right to prepay a loan without penalty says nothing to an accelerated maturity date because the payment schedule has ended.
The court of appeals, without any direct authority,18 held that prepayment without penalty is inconsistent with acceleration. In fact, however, prepayment rights and acceleration have nothing to do with one another.
They refer to different periods in the life of a loan.
17 These are common. See, e.g., 15 U.S.C. § 1639(c)
(no prepayment penalty allowed for certain high-cost mortgages); 15 U.S.C. § 1639c (min. stds. for residential mortgages provide safe-harbor for mortgages which have no prepayment penalty and otherwise prohibit prepayment penalties under various circumstances).
18 2021 WL 2525457, at *4
(citing Affiliated Capital Corp. v. Commercial Fed. Bank, 834 S.W.2d 521, 526 (Tex. App.—Austin 1992, no writ).
Prepayment of principal refers to an event during the installment payment schedule – hence the name prepayment.19
Once the maturity date of the note has been accelerated, however, the entire principal and all interest is due now; “prepayment” ceases to have meaning since there is no longer any payment schedule.20
There are the before-times, when prepayment is possible, and there are the after-times, when it’s pay in full or lose the home. The Floreys’ right to pay down principal early without incurring a penalty relates solely to the before-times.
The court of appeals’ error on that score is of broad significance since so many mortgages have some variety of prepayment allowance.
But on the specific facts of this case, the court of appeals erred profoundly in a way that ought to trouble this Court.
In this case, the note by its own terms takes away the borrower’s penalty-free prepayment right if the borrower has already defaulted:
“I may not designate a payment as a Prepayment if I have not made all the monthly payments due under the Note.”21
19 See, e.g., Young v. Gumfory, 322 S.W.3d 731, 742 (Tex. App. – Dallas 2010, no pet.)
(borrower was entitled to have prepayments of principal accepted before note was fully paid off on its regular installment payment schedule).
20 See generally Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566- 67 (Tex. 2001)
(acceleration ends the installment payment schedule unless the lender continues to accept payments);
Ogden v. Gibraltar Sav. Ass’n, 640 S.W.2d 232, 234 (Tex. 1982)
(“Proper notice that the debt has been accelerated, in the absence of a contrary agreement or waiver, cuts off the debtor’s right to cure his default and gives notice that the entire debt is due and payable.”);
Faulk v. Futch, 147 Tex. 253, 214 S.W.2d 614 (1948);
Wilmington Tr., Nat’l Ass’n v. Rob, 891 F.3d 174, 175 and fn. 2 (5th Cir. 2018) (quoting Black’s).
21 RR41 (Note ¶ 4).
By missing payments, the Floreys had no prepayment right after acceleration was noticed in December 2013.
The court of appeals based its entire holding on a right which the Floreys no longer had!
And that, in turn, is because the court of appeals did not defer to the source of that right – the black-and-white terms of the note.
Such a profound error by a court of appeals in failing to give any weight to the actual terms of a mortgage loan bolsters the need for the Court to take up this case and correct a clear injustice.
III. One of the monthly statements reciting the note’s prepayment right overlapped with active foreclosure proceedings.
The court of appeals overlooked another fact specific to this case.
The Lender’s 2013 Rule 736 expedited foreclosure proceeding remained pending until March 26, 2014, overlapping with a mortgage statement of February 2014 which referred to the Floreys’ prepayment right.
But the Lender could not simultaneously have been both pursuing foreclosure and abandoning the acceleration which served as the predicate for that foreclosure.
And if one such mortgage statement was not intended to abandon acceleration, the others could not have been intended to do so either. It is troubling that the court of appeals did not address this issue.22
IV. Conditional issue: Does abandonment of acceleration invalidate the predicate notice of default?
Dicta in the opinion below throws Texas foreclosure law into disarray.
22 See Tex. R. App. P. 47.1
(appellate opinion must address “every issue raised and necessary to final disposition of the appeal”).
It is a fundamental principle of Texas law that, to start the limitations clock running, “acceleration requires two acts:
(1) notice of intent to accelerate,
and
(2) notice of acceleration.”23
The reason step (1) is required is because step (2) is a calamity:
The exercise of an option to accelerate the entire balance of a debt is a harsh remedy. The courts in Texas have looked with disfavor upon the exercise of this power, since great inequity may result. It is incumbent on the mortgagee, in order to avail himself of this right of acceleration, to make a clear, positive, and unequivocal declaration in some manner of the exercise thereof, followed by an affirmative action towards enforcing the declared intention.24
However, the court of appeals agreed with the Lender that a given notice of intent to accelerate (a.k.a., notice of default) survives abandonment of any and all subsequent accelerations based on that notice of default, extending out for years.
In this case, that would mean that the Lender re-accelerated the loan with the expedited foreclosure proceedings of 2017 and 2019.25
If that is a holding below, and not dicta, it squarely raises an issue that has been percolating for years. Even if it is mere dicta, it is singularly troublesome dicta and needs to addressed.
23 Holy Cross Church, 44 S.W.3d at 566.
24 Crow v. Heath, 516 S.W.2d 225, 228 (Tex. Civ. App. – Corpus Christi 1974, writ refused n.r.e. 1975).
The notice of default is required not only by the common law, but also by statute (Tex. Prop. Code § 51.003), and the loan itself (CR314).
25 In fact, the Lender is seeking foreclosure based on a new notice of default issued after the 2019 expedited foreclosure proceedings.
On the state of the pleadings, therefore, there was no reason for the court of appeals to decide whether the 2017 and 2019 expedited foreclosure filings constitute valid accelerations.
Texas law is clear going back a century that when a lender abandons an acceleration, the loan returns to its pre-default state.26
Logically, that has got to mean that the notice of default upon which the acceleration was predicated is no longer in force, which is what every court until now has either held or else assumed to be the law.27
The Fifth Circuit concluded as of 2018 that “Texas courts have not squarely confronted whether a borrower is entitled to a new round of notice when a borrower re-accelerates following an earlier rescission.”28
Forced to make an Erie guess, the Fifth Circuit predicted that this Court “would require such notice.”29
Otherwise, the borrower would remain in default indefinitely, and the lender could hold the threat of immediate foreclosure over the borrower’s head without fear of limitations ever expiring.30
With the decision below conflicting directly with Wilmington Trust – an important federal decision to which lower Texas courts will defer31 – this case is a vehicle for this Court to step in on this issue.
The Lender went into court in both 2017 and 2019 brandishing a notice of default from 2013, swearing that the document entitled the lender to foreclose.
Later, when challenged in this case, the Lender switched tack and argued that it had “abandoned” the 2013 acceleration.
Forced to come up with a rationale for relying on the 2013 notice of default, the Lender claimed it was entitled to do so because it only abandoned the notice of acceleration, not its legal prerequisite.
That amounts to allowing Lenders to swoop down at will, for years on end and far past any limitations period, after issuing a notice of default.
26 See Holy Cross Church, 44 S.W.3d at 566-67;
Wilmington Trust, 891 F.3d at 177;
San Antonio Real Estate, Bldg. & Loan Ass’n v. Stewart, 94 Tex. 441, 61 S.W. 386, 388 (1901)
(the parties’ agreement or actions can “have the effect of obviating the default and restoring the contract to its original condition as if it had not been broken”);
Khan v. GBAK Properties, Inc., 371 S.W.3d 347, 353 (Tex. App.— Houston [1st Dist.] 2012, no pet.);
Dallas Joint Stock Land Bank v. King, 167 S.W.2d 245, 247 (Tex. Ct. App. 1942)
(“[A]fter a note has been declared all due under a provision giving the holder the option to do so, [the holder may] waive or rescind such action so as to reinstate the note and make it payable again according to its original terms.”);
Denbina v. City of Hurst, 516 S.W.2d 460, 463 (Tex. Civ. App.—Tyler 1974, no writ) (explaining that an option to accelerate may be withdrawn or revoked after it is exercised by the noteholder, effectively restoring the note’s original maturity date).
27 See, e.g., Wilmington Trust, 891 F.3d at 177;
De La Cruz v. Bank of New York, No. A-17-CV-00163-SS, 2018 WL 3018179, at *5 (W.D. Tex. June 15, 2018)
(“BONY’s abandonment of its 2006 and 2011 accelerations would render BONY’s only notices of intent to accelerate . . . ineffective, requiring a new a notice.”);
Karam v. Brown, 407 S.W.3d 464, 474 (Tex. App. – El Paso 2013, no pet.)
(where lender accepted payment after acceleration, it waived any acceleration based on the noticed default, requiring new notice of default);
Herrera v. Emmis Mortgage, No. 04-95-00006, 1995 WL 654561, at *4 (Tex. App.—San Antonio 1995, writ denied)
(“[A]bsent evidence that the Note was reinstated, appellee was not required to re-accelerate by serving new notices, demands, and accelerations.”).
28 Wilmington Trust, 891 F.3d at 177.
29 Id. (citing Texas cases)
Such a confusing state of affairs cannot continue.
If the decision below stands, it will significantly affect, if not undermine, Texas foreclosure law.
Default notices will persist for years on end, far beyond the foreclosure limitations period, while lenders retain the right to foreclose at will merely because they satisfied the statutory prerequisite once upon a time.32
Even repeated abandonments of acceleration over the years will mean nothing, mere mulligans, since the stale default status will just continue on.
Borrowers will be stranded in uncertainty, unsure where they stand and what the lender intends. Such a dramatic result needs to be announced clearly, statewide, for the benefit of all lenders and borrowers, or else overturned.
PRAYER FOR RELIEF
The Court should grant review, reverse the court of appeals, vacate the judgment, and render judgment in favor of the Floreys on their claim to quiet title based on the expiration of the statute of limitations on foreclosure.
Respectfully submitted,
/s/ J. Patrick Sutton
J. Patrick Sutton
Texas Bar No. 24058143
1706 W. 10th Street
Austin Texas 78703
Tel. (512) 417-5903
jpatricksutton@jpatricksuttonlaw.com
Attorney for Petitioners
CERTIFICATE OF SERVICE
I certify that on November 15, 2021, per T.R.A.P. 6.3(b), a true and correct copy of this petition was served by efiling on Elizabeth Chandler, EChandler@mcguirewoods.com, counsel for Respondent Nationstar, and Brandon Hakari, bhakari@mccarthyholthus.com, counsel for U.S. Bank.
/s/ J. Patrick Sutton
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in Century Schoolbook 14-point for text and 12-point for footnotes. Spacing is expanded by .5 point for clarity. This document also complies with the word-count limitations of Tex. R. App. P. 9.4(i)(2)(D) because it contains 4,010 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
/s/ J. Patrick Sutton
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