Lyons v. Select Portfolio Servicing Inc., No. 18-10938 (5th Cir. Jan. 17, 2019)
For simplicity, we call the mortgagee (Deutsche Bank National Trust Company) and Select Portfolio Servicing Inc. collectively “the Bank.
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 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, 2018 WL 6716933, 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 for “the Bank”.