Acceleration

Texas Attorney Thomas Austin Willbern III’s Foreclosure Affirmed by Fifth Circuit

Chase’s 2013 proposed repayment plan and its 2014 request for less than the full amount owed is an intent to abandon its 2010 acceleration.

Willbern v. Bayview Loan Servicing, L.L.C., No. 20-20129

(5th Cir. Jan. 13, 2021)

 REPUBLISHED BY LIT: SEP 9, 2021

Summary Calendar Appeal from the United States District Court for the Southern District of Texas
USDC No. 4:18-cv-4363

Before JOLLY, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:

Plaintiff-appellant Thomas Willbern filed suit against defendant-appellee Bayview Loan Servicing, LLC, in Harris County, Texas.

Mr. Willbern sought a temporary restraining order and a temporary injunction to prevent Bayview from foreclosing on his residence, located at 15302  Lakeview Drive, Houston, Texas 77040.

Bayview removed the case to federal court based on diversity jurisdiction and soon moved for summary judgment. The district court granted Bayview’s motion and dismissed Mr. Willbern’s suit.

For the reasons below, we affirm.

*Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIRCUIT RULE 47.5.4.

How Texas Manipulates Acceleration Rules, Compared to Illinois...

I.

We review the grant of summary judgment de novo.

Boren v. U.S. Nat. Bank Ass’n, 807 F.3d 99, 103 (5th Cir. 2015).

Mr. Willbern, and his wife, executed a $300,000.00 promissory note to purchase the Houston residence. After a series of assignments, the note, which was secured by an underlying deed of trust on the residence, was assigned to Bayview in 2017.

But the issues with the loan began back in August 2010 when Chase Home Finance, then owner of the loan, accelerated repayment after Mr. Willbern missed several monthly payments.

Chase, however, did not follow through with the acceleration and foreclosure.

This failure to foreclose leads Mr. Willbern to argue that the applicable four-year statute of limitations ran and that Bayview cannot now foreclose on the property.

Texas does indeed have a four-year statute of limitations for foreclosure actions.

Rose v. Select Portfolio Servicing, Inc., 945 F.3d 226, 229 (5th Cir. 2019).

And under Texas law, notice of intent to accelerate a loan repayment can trigger the start of the four-year window.

Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 565-67 (Tex. 2001).

In order to start the four-year clock, the loan holder must send both a clear and unequivocal notice of intent to accelerate and a notice of acceleration.

Boren, 807 F.3d at 104 (citing EMC Mortg. Corp. v. Window Box Association, Inc., 264 S.W.3d, 335-36 (Tex. App. 2008)).

While Chase sent a notice of intent to accelerate in August 2010 and followed up with a letter from its lawyer demanding full repayment, the record shows that Chase abandoned its 2010 acceleration efforts before the four-year statute of limitations ran and that it never attempted another acceleration.

A lender may unilaterally abandon acceleration either expressly or impliedly, through conduct inconsistent with a claim to the right.

Boren, 807 F.3d at 104-06; G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 511 (Tex. 2015).

“The request for payment of less than the full obligation—after initially accelerating the entire obligation—[is] an unequivocal expression of the bank’s intent to abandon or waive its initial acceleration.”

Martin v. Fannie Mae, 814 F.3d 315, 318 (5th Cir. 2016).

Within the Fifth Circuit, notices seeking less than the total amount due after acceleration show a clear and unequivocal intent to abandon acceleration.

See id.; Boren, 807 F.3d at 105.

The statute of limitations did not run here because on August 29, 2013, Chase attempted to initiate a repayment plan which broke the amount owed into quarterly payments of less than the full amount due.

Chase also sent a notice in March 2014 requesting $225,690.26, of the $233,648.92 owed, to bring the account current.

Neither Chase nor Bayview sent another notice of intent to accelerate or a notice of acceleration like those Chase sent in 2010.

For its part, Bayview attempted to implement a proposed modified repayment plan in April 2018 and took no actions that could cause potential statute of limitations issues.

Chase’s 2013 proposed repayment plan and its 2014 request for less than the full amount owed evidence an intent to abandon its 2010 acceleration.

Consequently, the statute of limitations on Bayview’s current foreclosure action did not run.

II.

Mr. Willbern takes issue with the district court’s reliance on business records that were submitted by Bayview but originally created by Chase. He claims they are hearsay and inadmissible under the business records exception because Bayview’s affiant did not have adequate knowledge of the Chase records.

Federal Rule of Evidence 803 allows business records to be admitted if a witness can testify that the records are integrated into a company’s records and relied upon in its day-to-day operations.

FED. R. EVID. 803(6)(D).

This is so even if the documents were originally created by another entity.

Air Land Forwarders, Inc. v. United States, 172 F.3d 1338, 1343 (Fed. Cir. 1999).

“There is no requirement that the witness who lays the foundation be the author of the record[s] or be able to personally attest to [their] accuracy.”

United States v. Duncan, 919 F.2d 981, 986 (5th Cir. 1990).

“Indeed, business records produced by another but integrated into the records of the party offering them are admissible.”

Chilmark Fin. Co. v. Spinks Joint Venture, 87 F.3d 1312, 1312 (5th Cir. 1996) (per curiam).

Ms. Leticia Sanchez, a Bayview employee, averred that she had personal knowledge of the business records, that the records were kept in the usual course of business, that the prior servicer files had been incorporated into Bayview’s own records, and that Bayview relies upon their accuracy.

That Ms. Sanchez was not a Chase employee does not, by itself, render the records inadmissible.

Since there is no evidence that the documents are untrustworthy, Ms. Sanchez’s affidavit authenticates the Chase records and makes them admissible.

See, e.g., Crear v. Select Portfolio Servicing Inc., 760 F. App’x 291, 295 (5th Cir. 2019)

(declaration of current servicer authenticated letters sent by prior servicers).

Accordingly, the district court did not abuse its discretion in admitting them.

See Painter v. Suire, 650 F. App’x 219, 224 (5th Cir. 2016)

(noting that evidentiary rulings are reviewed for abuse of discretion).

Texas Lawyer Willbern's Been Highlighted on LIT's State Bar Disciplinary Listings

III.

Mr. Willbern also filed a supplemental original petition that the district court did not consider because he did not obtain leave to file it. Federal Rule of Civil Procedure 15 requires a party wishing to file an amended complaint or a supplemental petition to seek leave from the court before doing so.

FED. R. CIV. P. 15(a) & (d).

Mr. Willbern argues that the scheduling order allowed him to amend pleadings up until July 1, 2019, and since he filed the supplemental petition on July 1, 2019, the district court made a reversable error by not considering it.

We disagree.

The scheduling order in no way modified Rule 15’s requirements that parties must seek permission from the court before filing amended and supplemental pleadings. All it did was ask that amendments be made before July 1, 2019, so that the parties could proceed with discovery in an orderly fashion.

Nothing in the scheduling order suggested that the district court would accept supplemental pleadings as a matter of course.

Mr. Willbern also takes issue with the district court’s refusal to consider a claim regarding title to the deed of trust. But that claim was included only in the supplemental petition and the response to the motion for summary judgment. It was therefore not properly before the district court.

See, e.g., Hoffman v. L & M Arts, 838 F.3d 568, 576 (5th Cir. 2016)

(“A claim which is not raised in the complaint but rather, is raised in a response to a motion for summary judgment is not properly before the court.”).

1 Even if Mr. Willbern were allowed to amend his complaint and argue that title to the deed of trust did not vest with Bayview, it is not clear that he would have standing to challenge the transfer because under Texas law,

“facially valid assignments cannot be challenged for want of authority except by the defrauded assignor.”

Reinagel vDeutsche Bank Nat’l Trust Co., 735 F.3d 220, 228 (5th Cir. 2013).

So, it appears that the party with standing to challenge the assignment would be the party who allegedly lost its interest in the deed of trust, not Mr. Willbern. ——–

IV.

Finally, Mr. Willbern filed a Rule 59(e) motion asking the district court to amend the judgment to a partial summary judgment and leave the unpleaded claim regarding the title to the deed of trust to be resolved.

The motion also asked the district court to set aside the judgment in its entirety due to a perceived question of fact related to the abandonment of acceleration and the introduction of Chase’s business records.

The district court said that the motion did not contain newly discovered evidence.

Since Mr. Willbern did not present new evidence in his motion, and the district court did not consider new evidence, we review the denial of the Rule 59 motion for abuse of discretion.

See Grant v. Harris Cty., 794 F. App’x 352, 358 (5th Cir. 2019) (citing Templet v. HydroChem Inc., 367 F.3d 473, 477 (5th Cir. 2004)).

A Rule 59(e) motion to amend calls into question the correctness of the judgment and serves the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence.

In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002); Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989).

The Rule 59(e) standard favors the denial of motions to alter or amend a judgment.

Southern Constructors Group, Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993).

A Rule 59(e) motion is inappropriate to relitigate old matters or raise arguments or claims “that could, and should, have been made before the judgment issued.”

Marseilles Homeowners Condo. Ass’n v. Fidelity Nat. Ins. Co., 542 F.3d 1053, 1058 (5th Cir. 2008).

Here, there were no changes in the law, there was no new evidence introduced, and as discussed above, nothing indicates that the district court made a manifest error of law or fact.

Therefore, Mr. Willbern failed to show that there was a ruling which the district court should alter or amend.

V.

The judgment of the district court is AFFIRMED.

Fifth Circuit Foreclosures Panels Including Jim ‘Waterboarding’ Ho in 2021 When MERS Is A Party

If you notice, all the arguments re acceleration are based on post 2008 financial crisis opinions by the corrupt Fifth Circuit judges.

Fifth Circuit Return to Post 2008 Financial Crisis Writings Again in this Foreclosure Case

Remember, not a single loss at all in 13 plus years in Banks v. Homeowners. Quite remarkable considering the billions of fines for predatory lending. These fines are still being levied against banks and nonbanks.

Hagens Berman Return to Texas, this time to the S.D. Federal Court

A Texas federal judge, Andrew Hanen of SDTX, has appointed attorneys from Hagens Berman and the Rosen Law Firm as co-lead counsel in a proposed investor class action accusing an oil field services company of issuing misleading financial reports.

U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:18-cv-04363

Willbern, III vs. Bayview Loan Servicing, LLC
Assigned to: Magistrate Judge Frances H Stacy

Case in other court:  295th District Court Harris County Texas, 18-79532

Cause: 28:1441 Notice of Removal

Date Filed: 11/16/2018
Date Terminated: 07/24/2019
Jury Demand: None
Nature of Suit: 220 Real Property: Foreclosure
Jurisdiction: Diversity
Plaintiff
Thomas A. Willbern, III represented by Conley Greg Goodrum
Attorney at Law
16225 Park Ten Place Dr.
Suite 500
Houston, TX 77084
281-578-3333
Fax: 281-578-1333
Email: cgreg@goodrumlaw.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
V.
Defendant
Bayview Loan Servicing, LLC represented by Carlos Rafael Hernandez-Vivoni
1255 West 15th Street, Suite 1060
Plano, TX 75075
214-291-3800
Email: chernandez@mccarthyholthus.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDRobert Brandon Hakari
McCarthy Holthus
1255 W 15th
Ste 1060
Plano, TX 75075
214-291-3800
Email: bhakari@mccarthyholthus.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICEDYoshie Valadez
McCarthy & Holthus, LLP
1255 West 15th Street
Ste 1060
Plano, TX 75075
214-291-3800
Fax: 214-291-3801
Email: yvaladez@mccarthyholthus.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

 

Date Filed # Docket Text
11/16/2018 1 NOTICE OF REMOVAL from 295th Judicial District Court of Harris County, case number 2018-79532 (Filing fee $ 400 receipt number 0541-21299177) filed by Bayview Loan Servicing, LLC. (Attachments: # 1 Exhibit Exhibit A Index & docs, # 2 Exhibit Exhibit B List of Counsel, # 3 Exhibit Exhibit C HCAD, # 4 Civil Cover Sheet Exhibit D Civil Cover Sheet)(Hakari, Robert) (Entered: 11/16/2018)
11/16/2018 2 NOTICE of Interested Parties by Bayview Loan Servicing, LLC, filed. (Hakari, Robert) (Entered: 11/16/2018)
11/19/2018 3 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 3/22/2019 at 02:00 PM in Room 11521 before Judge Ewing Werlein, Jr. (Signed by Judge Ewing Werlein, Jr) Parties notified.(jdavadi, 4) (Entered: 11/19/2018)
11/21/2018 4 ANSWER to Complaint by Bayview Loan Servicing, LLC, filed.(Hakari, Robert) (Entered: 11/21/2018)
03/11/2019 5 CERTIFICATE OF INTERESTED PARTIES by Thomas A. Willbern, III, filed.(Goodrum, Conley) (Entered: 03/11/2019)
03/12/2019 6 JOINT DISCOVERY/CASE MANAGEMENT PLAN by Bayview Loan Servicing, LLC, filed. (Attachments: # 1 Proposed Order prop Rule 16 Scheduling Order)(Hakari, Robert) (Entered: 03/12/2019)
03/19/2019 7 CONSENT to Proceed Before a Magistrate Judge by Thomas A. Willbern, III, filed.(Goodrum, Conley) (Entered: 03/19/2019)
03/20/2019 8 CONSENT TO PROCEED BEFORE MAGISTRATE JUDGE by Bayview Loan Servicing, LLC, Thomas A. Willbern, III and ORDER TRANSFERRING CASE to Magistrate Judge Frances H Stacy. Judge Ewing Werlein, Jr no longer assigned to the case.(Signed by Judge Ewing Werlein, Jr) Parties notified.(kpicota, 4) (Entered: 03/21/2019)
03/21/2019 9 NOTICE of Setting. Parties notified. Initial Conference set for 4/17/2019 at 10:00 AM in Courtroom 704 before Magistrate Judge Frances H Stacy, filed. (bwhite, 4) (Entered: 03/21/2019)
04/04/2019 10 MOTION for Summary Judgment by Bayview Loan Servicing, LLC, filed. Motion Docket Date 4/25/2019. (Attachments: # 1 Affidavit Affidavit in Support)(Hakari, Robert) (Entered: 04/04/2019)
04/10/2019 11 STATEMENT re. telephonic appearance of Initial Conference on April 17 2019 by Bayview Loan Servicing, LLC, filed.(Hakari, Robert) (Entered: 04/10/2019)
04/17/2019 12 Minute Entry for proceedings held before Magistrate Judge Frances H Stacy. Initial SCHEDULING CONFERENCE held on 4/17/2019. Parties consent to Magistrate. DCO to follow. Appearances: Robert Brandon Hakari (appeared by phone), Conley Greg Goodrum.(ERO:Y), filed.(sanderson, 4) (Entered: 04/17/2019)
04/18/2019 13 SCHEDULING ORDER. ETT: 2 Days: Joinder of Parties due by 6/3/2019. Amended Pleadings due by 7/1/2019. Pltf Expert Witness List/Reports due by 9/2/2019. Deft Expert Witness List.Reports due by 9/13/2019. Mediation due by 8/15/2019. Dispositive Motion Filing due by 11/29/2019. Discovery due by 1/4/2020. Joint Pretrial Order due by 1/31/2020. Objections due by 2/14/2020….*** Bench Trial set for 2/24/2020 at 09:30 AM in Courtroom 704 before Magistrate Judge Frances H Stacy. (Signed by Magistrate Judge Frances H Stacy) Parties notified.(sanderson, 4) (Entered: 04/18/2019)
05/28/2019 14 RESPONSE to 10 MOTION for Summary Judgment filed by Thomas A. Willbern, III. (Attachments: # 1 Affidavit Plaintiff Affidavit)(Goodrum, Conley) (Entered: 05/28/2019)
06/03/2019 15 REPLY in Support of 10 MOTION for Summary Judgment , filed by Bayview Loan Servicing, LLC. (Hakari, Robert) (Entered: 06/03/2019)
06/04/2019 16 Opposed MOTION for Extension of Time Filing Summary Judgment Response by Thomas A. Willbern, III, filed. Motion Docket Date 6/25/2019. (Attachments: # 1 Proposed Order Order)(Goodrum, Conley) (Entered: 06/04/2019)
06/10/2019 17 ORDERE EXTENDING PLAINTIFF’S RESPONSE TO SUMMARY JUDGMENT DEADLINE re: 16 Opposed MOTION for Extension of Time Filing Summary Judgment Response. Plaintiff’s Response filed on May 28, 2019, is timely. (Signed by Magistrate Judge Frances H Stacy) Parties notified.(JenniferLongoria, 1) (Entered: 06/11/2019)
07/01/2019 18 First AMENDED COMPLAINT against Bayview Loan Servicing, LLC filed by Thomas A. Willbern, III.(Goodrum, Conley) (Entered: 07/01/2019)
07/24/2019 19 MEMORANDUM AND ORDER granting 10 MOTION for Summary Judgment . (Signed by Magistrate Judge Frances H Stacy) Parties notified.(gclair, 4) (Entered: 07/25/2019)
07/24/2019 20 FINAL JUDGMENT. Case terminated on 7/24/2019. (Signed by Magistrate Judge Frances H Stacy) Parties notified.(gclair, 4) (Entered: 07/25/2019)
08/21/2019 21 MOTION for New Trial by Thomas A. Willbern, III, filed. Motion Docket Date 9/11/2019. (Attachments: # 1 Affidavit Plaintiff’s Affidavit, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E)(Goodrum, Conley) (Entered: 08/21/2019)
09/11/2019 22 RESPONSE in Opposition to 21 MOTION for New Trial, filed by Bayview Loan Servicing, LLC. (Hakari, Robert) (Entered: 09/11/2019)
02/11/2020 23 ORDER denying 21 Motion for New Trial.(Signed by Magistrate Judge Frances H Stacy) Parties notified.(bwhite, 4) (Entered: 02/11/2020)
03/11/2020 24 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit by Thomas A. Willbern, III (Filing fee $ 505, receipt number 0541-24389539), filed.(Goodrum, Conley) (Entered: 03/11/2020)
03/12/2020 25 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 24 Notice of Appeal. Fee status: Paid. Reporter(s): ERO, filed. (dnoriega, 1) (Entered: 03/12/2020)
03/26/2020 26 Notice of Non-Compliance. Appellant has failed to: Submit the DKT13 transcript order form. Parties notified, filed. (JenniferLongoria, 1) Modified on 3/27/2020 (JenniferLongoria, 1). (Entered: 03/26/2020)
04/06/2020 27 DKT13 TRANSCRIPT ORDER REQUEST by WILLBERN/GOODRUM. This is to order a transcript of Entry of Docket Order on 4/17/19 before Judge Stacy. Court Reporter/Transcriber: Judicial Transcribers of Texas. This order form relates to the following: 12 Scheduling Conference,, filed.(Goodrum, Conley)Electronically forwarded to Judicial Transcribers of Texas on 4-7-2020. Estimated completion date: 5-7-2020. Modified on 4/7/2020 (MelissaMorgan, 4). (Entered: 04/06/2020)
04/28/2020 28 USCA LETTER for the Fifth Circuit advising court reporter Mary Henry the transcript must be filed with the District Court Clerk within 30 days from the date the USCA received the purchase order (USCA No. 20-20129), filed.(EdnitaPonce, 1) (Entered: 04/28/2020)
05/12/2020 29 APPEAL TRANSCRIPT re Initial Conference held on April 17, 2019 before Magistrate Judge Frances H Stacy. Court Reporter/Transcriber Judicial Transcribers of Texas, LLC. Ordering Party: Conley Greg Goodrum. This transcript relates to the following: 24 Notice of Appeal, 27 Appeal Transcript Request,. Release of Transcript Restriction set for 8/10/2020., filed. (mahenry, ) (Entered: 05/12/2020)
Texas Attorney Thomas Austin Willbern III’s Foreclosure Affirmed by Fifth Circuit
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Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

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