Opinion issued June 11, 2013.




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-12-00670-CV
                           ———————————
      PATRICK A. HICKEY AND CECILIA P. HICKEY, Appellants
                                       V.
            THE HUNTINGTON NATIONAL BANK, Appellee


                  On Appeal from the 190th District Court
                          Harris County, Texas
                      Trial Court Case No. 1170468


                         MEMORANDUM OPINION

     Patrick A. Hickey and Cecilia P. Hickey appeal from the summary judgment

granted in favor of The Huntington National Bank. 1 The Bank foreclosed on the


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     The Hickeys’ loan originated with Union Federal Bank, which was subsequently
     acquired by Sky Financial Group, Inc. and then by Huntington National Bank
     though a merger in 2007. For simplicity, we will refer to appellee as the Bank.
Hickeys’ home in July 2011.       Shortly thereafter, the Hickeys sued the Bank

seeking a declaratory judgment that the four-year statute of limitations barred the

foreclosure. The Bank filed a no-evidence motion for summary judgment arguing

that there was no evidence that the Bank’s cause of action accrued in 2004, as the

Hickeys alleged. The trial court granted the motion and entered a take-nothing

judgment. In their sole issue on appeal, the Hickeys contend that the trial court

erred in granting summary judgment in the Bank’s favor because the four-year

statute of limitations accrued at the latest in 2004 and, therefore, the Bank’s

foreclosure in 2011 was barred by the statute of limitations. We affirm.

                                   Background

      On November 19, 2001, the Hickeys purchased a home in Houston, which

was secured by a promissory note and a deed of trust. 2 The note contained an

acceleration clause that provided that upon default, “after the lender give[s] any

legally required notice and opportunity to cure the default, [the lender] at [its]

option . . . may make all or any part of the amount owing by the terms of this Note

immediately due.” The deed of trust contained a similar provision: the “Lender

may make all or any part of the amount owing by the terms of the Secured Debts

immediately due and foreclose this Security Instrument in a manner provided by

law upon the occurrence of a default or anytime thereafter.”

2
      The note from the Bank was subordinate to another note with another institution,
      the proceeds of which were also used to fund the purchase of the property.
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      The Hickeys missed their September 2003 loan payment. On January 12,

2004, the Bank sent them a default letter:

              You are in default to [the Bank] on the Note and Deed of Trust
      relating to the above-referenced property located at 11610 Manor
      House Lane, Houston, Texas, as a result of your failure to make your
      monthly payments of $1,258.59 that were due and payable for the
      month of September, 2003. As of the date of this Notice, your
      arrearages total $6,292.95. You have also incurred late fees in the
      amount of $139.03, title work fees of $124.00 and appraisal fees of
      $220.00. Therefore, the total arrearage owed as of the date of this
      letter is $6,776.98.

             You are further notified, that in the event the default is not
      cured on or before January 20th, 2004, [the Bank], at its option, may
      require immediate payment in full of all sums secured by the Deed of
      Trust without further demand and may invoke the power of sale and
      any other remedies permitted by applicable law. [The Bank] shall be
      entitled to collect all expenses in pursuing the remedies provided in
      the Note and Deed of Trust, including but not limited to reasonable
      attorney fees.

      In February 2004, the Bank hired Rocap Witchger, LLP, a lawfirm in

Indiana, to foreclosure on the Hickeys’ property. Rocap Witchger then hired local

counsel in Houston.

      On April 5, 2004, the Bank sent a letter to the Hickeys acknowledging

receipt of a $10,255.75 payment.       The letter informed the Hickeys that this

payment covered the “October 1st, 2003 payment through and including the April

1st, 2004 payment” and that the “[f]oreclosure action was put on hold . . . when

[the Bank] received [the] reinstatement proceeds.”     It also noted that a $700

balance for attorney’s fees and costs remained unpaid. Although the record is not
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entirely clear on the details, the Hickeys resumed making payments on the note for

some time. But several years later, they fell behind again.

      In 2011, the Bank notified the Hickeys that they were in default and that the

note was accelerated. In response, the Hickeys sent several letters to the Bank

protesting the foreclosure and arguing that the Bank’s cause of action accrued in

2004 and, therefore, the Bank’s right to foreclose on the property expired in 2008.

The Bank foreclosed on July 5, 2011, and the Hickeys sued the Bank seeking a

declaratory judgment that the four-year statute of limitations barred the Bank’s

foreclosure action.

      The Bank moved for summary judgment, alleging that there was no

evidence that the Hickeys’ note was accelerated in 2003 or 2004, and, therefore, no

evidence that the Bank’s cause of action accrued at that time. Specifically, the

Bank claimed:

      there is no evidence that the defendant Bank sent an intent to
      accelerate letter to the Hickeys in 2003; there is no evidence that the
      defendant Bank sent a notice of acceleration letter to the Hickeys in
      2003 or 2004; and there is no evidence that the Hickeys did not make
      payments to the defendant Bank after 2004.

      In response, the Hickeys claimed that they were not required to produce

evidence that they received notice of intent to accelerate and notice of acceleration.

They argued that the evidence of their 2003/2004 default, combined with evidence

that the Bank hired attorneys to bring a foreclosure action in 2004, was sufficient


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to show that the cause of action accrued by 2004, at the latest. The trial court

granted the Bank’s summary-judgment motion. The Hickeys appealed.

                                     Accrual

      On appeal, the Hickeys contend the trial court erred in granting summary

judgment in the Bank’s favor because the statute of limitations on the Bank’s

foreclosure action expired before the Bank brought the action in 2011.          The

Hickeys contend that the note was accelerated upon their default in 2003/2004 and,

therefore, the four-year limitations period began at that time. In keeping with this

argument, the Hickeys contend that they were not required to adduce evidence that

the Bank provided them with either notice of intent to accelerate or notice of

acceleration.

A.    Standard of Review

      We review de novo the trial court’s ruling on a motion for summary

judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d

844, 848 (Tex. 2009). To prevail on a no-evidence motion for summary judgment,

the movant must establish that there is no evidence to support an essential element

of the nonmovant’s claim on which the nonmovant would have the burden of proof

at trial. TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied).       The burden then shifts to the

nonmovant to present evidence raising a genuine issue of material fact as to each


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of the elements specified in the motion. Essex Crane Rental Corp. v. Carter, 371

S.W.3d 366, 375 (Tex. App.—Houston [1st Dist.] 2012, pet. denied); Hahn, 321

S.W.3d at 324.

      “The trial court must grant the motion unless the nonmovant produces more

than a scintilla of evidence raising a genuine issue of material fact on the

challenged elements.” Essex Crane, 371 S.W.3d at 376 (quoting Flameout Design

& Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.—

Houston [1st Dist.] 1999, no pet.)). We review the evidence presented by the

motion and response in the light most favorable to the party against whom the

summary judgment was rendered, crediting evidence favorable to that party if

reasonable jurors could, and disregarding contrary evidence unless reasonable

jurors could not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).

B.    Applicable Law

      “A sale of real property under a power of sale in a mortgage or deed of trust

that creates a real property lien must be made not later than four years after the day

the cause of action accrues.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.035(b)

(West 2002). When this four-year statute of limitations expires, the real-property

lien and the power of sale to enforce the lien become void. Id. § 16.035(d). If “a

note or obligation payable in installments is secured by a real property lien, the

four-year limitations period does not begin to run until the maturity date of the last


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. . . installment.” Id. § 16.035(e). Section 16.035 modifies the general rule that a

claim accrues and limitations begins to run on each installment when it becomes

due. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex.

2001).

      Importantly, if a note or deed of trust secured by real property contains an

optional acceleration clause, default does not start the limitations running on the

note. Id. Instead, under these circumstances, a cause of action for foreclosure

accrues only when the note holder actually exercises its option to accelerate. Id.;

see also Khan v. GBAK Prop., Inc., 371 S.W.3d 347, 353 (Tex. App.—Houston

[1st Dist.] 2012, no pet.). This requires two acts: (1) notice of intent to accelerate,

and (2) notice of acceleration. Holy Cross Church, 44 S.W.3d at 566; see also

Burney v. Citigroup Global Markets Realty Corp., 244 S.W.3d 900, 903 (Tex.

App.—Dallas 2008, no pet.). “Notice of intent to accelerate is necessary in order

to provide the debtor an opportunity to cure his default prior to harsh consequences

of acceleration and foreclosure,” while notice of acceleration “cuts off the debtor’s

right to cure his default and gives notice that the entire debt is due and payable.”

Ogden v. Gibraltar Sav. Ass’n, 640 S.W.2d 232, 234 (Tex. 1982). Notice that the

debt has been accelerated is ineffective unless preceded by proper notice of intent

to accelerate. Id. Both notices must be clear and unequivocal. Holy Cross

Church, 44 S.W.3d at 566.


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C.    Analysis

      In their petition, the Hickeys alleged that the Bank’s cause of action accrued

in 2003/2004 when they first defaulted on the loan and the Bank hired lawyers to

handle the foreclosure process. Under this theory, the Bank had four years from

the date of default and accrual—until 2008 at the latest—in which to foreclose, and

its attempt to do so in 2011, came too late. Accordingly, the Hickeys contend the

Bank’s 2011 action was time-barred and the resulting foreclosure was void. In its

no-evidence motion for summary judgment, the Bank alleged there was no

evidence that the Hickeys’ note was accelerated in 2004, and, therefore, no

evidence that the Bank’s cause of action accrued in 2004. To defeat the Bank’s

no-evidence motion, the Hickeys were required to present evidence raising a

genuine issue of material fact as to whether their note was in fact accelerated, and

thus the Bank’s cause of action accrued, in 2004. See Holy Cross Church, 44

S.W.3d at 566.

      1.     Optional Acceleration Clause

      We first address the Hickeys’ argument that their default triggered the

acceleration of the entire debt and the start of the limitations period, disposing with

the need for any other evidence of acceleration. In support of this argument, the

Hickeys rely on older authority holding that a default could cause the accelerated

maturity of the entire debt if the documents so provided. See City Nat’l Bank of


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Corpus Christi v. Pope, 260 S.W. 903, 905 (Tex. Civ. App.—San Antonio 1924,

no writ) (“[I]f the accelerated maturity of the whole debt had been independently

provided for, without according an option to the holder, then the rule would be

different, the default provided for would ipso facto mature the whole debt, and

limitation would thereupon begin to run.”) But, the Texas Supreme Court recently

has held that where a note or deed of trust secured by real property contains an

optional acceleration clause, a cause of action for foreclosure accrues, and the

limitations period begins running, only when the note holder actually exercises its

option to accelerate, not immediately upon default. See Holy Cross Church, 44

S.W.3d at 566.

      Here, both the note and the deed of trust give the lender the option to

accelerate the note upon default. Paragraph 14 of the note states that, upon default,

the Bank, “at [its] option . . . may make all or any part of the amount owing by the

terms of this Note immediately due.”         The deed of trust contains a similar

provision: “Lender may make all or any part of the amount owing by the terms of

the Secured Debts immediately due and foreclose this Security Instrument in a

manner provided by law upon the occurrence of a default or anytime thereafter.”

These documents, by their plain terms, provide the Bank the option to accelerate

the note upon default. Therefore, in order to have effectively exercised its option




                                         9
to accelerate the note, the Bank was required to provide the Hickeys with notice of

intent to accelerate and notice of acceleration. Id.

      Yet the Hickeys point to the provision of the deed of trust that states: “[i]n

the event of default, it will be the duty of the Trustee, at the request of Lender

(which request is hereby conclusively presumed), to invoke the power of sale as

required by Section 51.002 of the Texas Property Code.” They contend this

demonstrates the Bank had no option but to invoke the power of sale upon their

default. But this ignores the provisions discussed above, as well as the preceding

sentence of the deed of trust, which states that the Bank’s right to accelerate and

foreclose are “subject to any right to cure, required time schedules or any other

notice rights [the Hickeys] may have under federal and state law.” (Emphasis

added). Texas law requires that both notice of intent to accelerate and notice of

acceleration be given.    See Holy Cross Church, 44 S.W.3d at 566.          Having

concluded that these two notices were required, we consider whether the Hickeys

adduced some evidence that they received the required notice.

      2.     Did the Hickeys produce some evidence that the Bank provided notice
             of intent to accelerate?

      In support of their response to the Bank’s motion for summary judgment, the

Hickeys adduced evidence demonstrating that the Bank, in 2004, took certain steps

toward foreclosure. This consisted of: (1) a January 12, 2004 notice of default

letter from the Bank to the Hickeys informing them if they do not cure default, the
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Bank “may require immediate payment in full . . . and may invoke the power of

sale;” (2) two 2004 billing statements reflecting the Bank incurred legal fees in

connection with its contemplated foreclosure action against the Hickeys; and (3) a

February 23, 2004 letter from Rocap Witchger asking local counsel to “please

move forward with a foreclosure against the Hickeys.”

        We conclude that this evidence did not raise a fact issue as to whether the

Bank provided the Hickeys notice of its intent to accelerate. First, we note that

neither the billing statements nor the letter from Rocap Witchger to local counsel

were sent to the Hickeys and, therefore, cannot be evidence that the Bank provided

the Hickeys notice of its intent to accelerate. In addition, although the Hickeys

argue the January 12, 2004 letter from the Bank is sufficient, it merely stated that

the Hickeys were in default and that if default was not cured within the specified

period, the Bank, at its option, “may” accelerate the debt and invoke its power of

sale.   This is not evidence that the Bank intended to exercise the option to

accelerate the note; rather, it is merely a restatement of the option conferred in the

note and deed of trust. See Ogden, 640 S.W.2d at 233–34 (holding that letter

containing warning that “failure to cure breach . . . may result in acceleration of the

sums secured by the Deed of Trust and sale of the property,” was insufficient to

give notice to debtor that noteholder intended to exercise its option to accelerate

debt because it “merely restated the option conferred in the deed of trust”); see also


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Mastin v. Mastin, 70 S.W.3d 148, 155 (Tex. App.—San Antonio 2001, no pet.)

(applying cases requiring unequivocal language regarding acceleration to debt

arising in divorce decree and concluding that, where divorce decree gave wife

option to accelerate remaining alimony amounts due upon default, prayer for relief

in petition “that [wife] be granted acceleration if she so requests at the time of

trial” did no more than repeat option in divorce decree and did not give

unequivocal notice of intent to accelerate, rendering any attempted acceleration

ineffective); Sarasota, Inc. v. Ballew, No. 03-00-00258-CV, 2001 WL 194031, at

*3 (Tex. App.—Austin Feb. 28, 2001, pet. denied) (holding that letter from lender

advising debtor that, unless loan was brought current, lender “intend[ed]” to

exercise its right to foreclose on property may have indicated “movement toward

acceleration and foreclosure, but it [was] neither unequivocal nor sufficient alone”

to express intent to accelerate and affidavit from former officials at lender stating

that lender “was going forward with the exercise of its legal rights” did not make

letter unequivocal).

      As noted, effective acceleration requires two things: (1) notice of intent to

accelerate; and (2) notice of acceleration. Holy Cross Church, 44 S.W.3d at 566;

Burney, 244 S.W.3d at 903.       Even assuming that the Hickeys had produced

evidence on the issue of the bank’s notice of acceleration, any notice that the debt

had been accelerated was ineffective because it was not preceded by proper notice


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of intent to accelerate. See Ogden, 640 S.W.2d at 234. Therefore, we conclude

that, because the Hickeys failed to produce evidence of notice of intent to

accelerate, the Bank’s cause of action did not accrue in 2004 and the trial court

properly granted summary judgment in the Bank’s favor.

                                   Conclusion

      We affirm the judgment of the trial court.




                                             Rebeca Huddle
                                             Justice

Panel consists of Justices Jennings, Brown, and Huddle.




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