Opinion issued May 12, 2015




                                   In The

                              Court of Appeals
                                  For The

                       First District of Texas
                         ————————————
                           NO. 01-14-00017-CV
                         ———————————
                     MARK E. BIEDRYCK, Appellant

                                     V.

  U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CREDIT
  SUISSE, FIRST BOSTON MORTGAGE SECURITIES CORP., HOME
  EQUITY PASS-THROUGH CERTIFICATES, SERIES 2005-6, Appellee


                 On Appeal from the 129th District Court
                          Harris County, Texas
                    Trial Court Case No. 2013-01631


                       MEMORANDUM OPINION

     Appellant, Mark E. Biedryck, challenges the district court’s rendition of

summary judgment in favor of appellee, U.S. Bank National Association, as
Trustee for Credit Suisse, First Boston Mortgage Securities Corp., Home Equity

Pass-Through Certificates, Series 2005-6 (“U.S. Bank”), in Biedryck’s declaratory-

judgment action against U.S. Bank. In two issues, Biedryck contends that the

district court erred in granting U.S. Bank summary judgment.

      We affirm.

                                     Background

      In his petition, Biedryck alleged that in 2005, he obtained a home equity

loan from U.S. Bank against his real property located at 7400 Bellerive in Houston

(the “property”). He later defaulted on the note, and, in August 2007, U.S. Bank

filed an “Application for Home Equity Foreclosure Order,” (“application for

foreclosure”), 1 which it later dismissed. In December 2007, U.S. Bank filed a

second application for foreclosure, asserting that Biedryck had “failed to remit the

monthly payment [that] became due in March 2007, and every monthly installment

[that had] become due since that date.” And, as of December 10, 2007, the loan

was “10 monthly payments in arrears.” Although the district court granted the

second application on April 1, 2008,2 U.S. Bank did not foreclose on the property.



1
      See TEX. R. CIV. P. 736 (providing for expedited order allowing foreclosure on
      certain liens).
2
      Biedryck asserted in his petition that the district court granted the application on
      “August 1, 2008,” citing “Plaintiff’s Exhibit 1,” which he attached to his petition.
      However, Exhibit 1 reflects that the district court signed the order on April 1,
      2008.


                                           2
      In January 2009, U.S. Bank filed a third application for foreclosure,

asserting that Biedryck had “failed to remit the monthly payment [that] became

due in July 2007, and every monthly installment [that had] become due since that

date.” And, as of December 18, 2008, the loan was “18 monthly payments in

arrears.” Again, although the district court granted the third application, U.S. Bank

did not foreclose.

      In August 2010, U.S. Bank filed a fourth application for foreclosure,

asserting that Biedryck had “failed to remit the monthly payment [that] became

due in May 2008, and every monthly installment [that had] become due since that

date.” And, as of July 28, 2010, the loan was “27 monthly payments in arrears.”

However, the district court dismissed the fourth application.

      Finally, on September 20, 2012, U.S. Bank filed a fifth application for

foreclosure.   After Biedryck filed the instant declaratory-judgment action, the

district court dismissed U.S. Bank’s application.3

      Asserting that U.S. Bank’s “cause of action on the defaulted [n]ote accrued

when the March 2007 payment became overdue” and the “default has never been

cured,” Biedryck sought a declaration that U.S. Bank’s “lien and power of sale

3
      See TEX. R. CIV. P. 736.11(a), (c) (requiring dismissal of application if respondent
      files original proceeding contesting right to foreclose); Huston v. U.S. Bank Nat.
      Ass’n, 359 S.W.3d 679, 683 (Tex. App.—Houston [1st Dist.] 2011, no
      pet.) (holding counterclaim for declaratory relief not allowed in rule 736
      foreclosure proceeding; however, separate lawsuit to contest right to foreclose
      allowed).


                                           3
have expired as a matter of law.” He argued that because a four-year statute of

limitations applies,4 U.S. Bank’s “lien and power of sale” expired in March 2011.

He further asserted that U.S. Bank’s September 20, 2012 application for

foreclosure was filed after the expiration of the limitations period.

      U.S. Bank answered, generally denying Biedryck’s allegations and arguing

that his declaratory-judgment action is barred because it had abandoned its

acceleration of the note. In its summary-judgment motion, U.S. Bank argued that

it is entitled to judgment as a matter of law because the “limitations period has not

run.” It asserted that in 2005, Biedryck executed a promissory note and deed of

trust 5 to obtain a home equity loan in the amount of $50,800 against the property;

in 2006, Biedryck defaulted on his payments; and, in November 2007, it sent him a

“Notice of Default and Intent to Accelerate.” U.S. Bank further asserted that

“[a]ssuming [Biedryck’s] allegations are true, [it] subsequently accelerated the

maturity of the debt in December 2007.” However, in February, March, and April

2008, it accepted payments from Biedryck in the amounts of $1,413.00, $718.93,

and $718.93, respectively.

      In September 2008, after Biedryck had once again defaulted, U.S. Bank

again sent him a Notice of Default and Intent to Accelerate. And on December 17,
4
      See TEX. CIV. PRAC. & REM. CODE ANN. § 16.035 (Vernon 2002).
5
      The promissory note and deed of trust were originally made payable to Argent
      Mortgage Company, LLC. On March 6, 2007, Argent assigned the note and deed
      of trust to U.S. Bank. Argent is not a party to this appeal.

                                           4
2008, it accelerated the maturity of the debt and sent Biedryck a “Notice of

Acceleration.” On May 20, 2009, however, “[i]n an attempt to assist [Biedryck] to

bring his loan back up to date,” U.S. Bank and Biedryck entered into a “Special

Forbearance Agreement” (“SFA”), “whereby the parties agreed to a revised

payment schedule in order to catch [Biedryck] up on his delinquent payments.”

And U.S. Bank, in accordance with the SFA, then accepted a payment from

Biedryck in May 2009 in the amount of $700.00. It also accepted payments in the

amount of $747.28 each month from June through August 2009. On December 5,

2009, the parties entered into a “Loan Modification Agreement” (“LMA”),

pursuant to which U.S. Bank capitalized past-due amounts and lowered Biedryck’s

payments and interest rate. Biedryck promised to make monthly payments of

$308.82 beginning January 2010.

      In January 2010, after Biedryck had not remitted payment in accordance

with the LMA, U.S. Bank and Biedryck entered into a second SFA, again

rearranging his payment plan. U.S. Bank then accepted payments from him from

February through April 2010.

      After April 2010, however, Biedryck again stopped making payments, and

in June 2010, U.S. Bank again sent him a Notice of Default and Intent to

Accelerate. In July 2010, it accelerated the maturity of the debt and sent Bierdryck

a Notice of Acceleration. In August 2010, however, U.S. Bank and Biedryck



                                         5
entered into a third SFA, “whereby the parties agreed to a revised payment

schedule in order to catch [Biedryck] up on his delinquent payments.” U.S. Bank

then accepted payments from Biedryck from August 2010 through March 2011.

      After March 2011, however, Biedryck again stopped making payments, and

on July 6, 2012, U.S. Bank again sent him a Notice of Default and Intent to

Accelerate. On August 7, 2012, it accelerated the maturity of the debt and sent

Biedryck a Notice of Acceleration. And on September 20, 2012, U.S. Bank filed

an application for foreclosure.6 Biedryck then filed the instant action. 7

      U.S. Bank further asserted in its summary-judgment motion that its 2012

“foreclosure cause of action . . . accrued on August 7, 2012, the date that [it]

accelerated the maturity of the debt and sent [Biedryck] a Notice of Acceleration.”

It noted that “while it is true that [it] accelerated the loan several times prior, all of

those occasions were abandoned or otherwise waived by [] accepting payments

from [Biedryck] and entering into loan forbearance agreements.” To its summary-

judgment motion, U.S. Bank attached a copy of the note, the deed of trust,

Biedryck’s payment history, its Notices of Default and Intent to Accelerate, its

Notices of Acceleration, and the parties’ SFAs and LMA.



6
      Cause number 2012-55337 (80th Dist. Ct., Harris Cnty., Tex.); see TEX. R. CIV. P.
      736.
7
      See TEX. R. CIV. P. 736.11(a), (c) (requiring dismissal of application if respondent
      files original proceeding contesting right to foreclose).

                                            6
      In his response to U.S. Bank’s summary-judgment motion, Biedryck

asserted that U.S. Bank’s December 21, 2007 application for foreclosure and the

district court’s April 1, 2008 “Foreclosure Order” “prevent [it] from claiming that

its cause of action had not accrued”; U.S. Bank could have executed an agreement

extending the limitations period, but did not; and the SFAs do not constitute

“abandonments of acceleration.”     And he argued that the 2009 LMA is void

because it does not comply with the Texas Constitution.

      After a hearing, the district court granted U.S. Bank summary judgment,

denying Biedryck’s request for a declaration.

                               Standard of Review

      Declaratory judgments rendered by summary judgment are reviewed under

the same standards that govern summary judgments generally. Bowers v. Taylor,

263 S.W.3d 260, 264 (Tex. App.—Houston [1st Dist.] 2007, no pet.). To prevail

on a summary-judgment motion, a movant has the burden of establishing that it is

entitled to judgment as a matter of law and there is no genuine issue of material

fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).

When a defendant moves for summary judgment, it must either (1) disprove at

least one essential element of the plaintiff’s cause of action or (2) plead and

conclusively establish each essential element of its affirmative defense, thereby

defeating the plaintiff’s cause of action. Cathey, 900 S.W.2d at 341; Yazdchi v.



                                         7
Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex. App.—Houston [1st Dist.] 2005,

pet. denied).   When deciding whether there is a disputed, material fact issue

precluding summary judgment, evidence favorable to the non-movant will be taken

as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).

Every reasonable inference must be indulged in favor of the non-movant and any

doubts must be resolved in its favor. Id. at 549.

                                     Limitations

      In his first issue, Biedryck argues that the district court erred in granting

U.S. Bank summary judgment because it filed its application to foreclose in 2007,

the district court granted the application in 2008, and more than four years have

passed since its action accrued.      See TEX. CIV. PRAC. & REM. CODE ANN.

§ 16.035(b) (Vernon 2002) (“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 cause of action accrues.”).

      It is true that “[o]n the expiration of the four-year limitations period, the real

property lien and a power of sale to enforce the real property lien become void.”

Id. § 16.035(d). However, “[i]f a series of notes or obligations or 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 note,

obligation, or installment.” Id. § 16.035(e); Holy Cross Church of God in Christ v.



                                          8
Wolf, 44 S.W.3d 562, 566 (Tex. 2001) (noting section 16.035 modifies general rule

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

becomes due).

      “If a note secured by a real property lien is accelerated pursuant to the terms

of the note, then the date of accrual becomes the date the note was accelerated.”

Khan v. GBAK Props., Inc., 371 S.W.3d 347, 353 (Tex. App.—Houston [1st Dist.]

2012, no pet.).   Acceleration requires (1) notice of intent to accelerate and

(2) notice of acceleration. Holy Cross, 44 S.W.3d at 566. Both notices must be

“clear and unequivocal.” Id. (quoting Shumway v. Horizon Credit Corp., 801

S.W.2d 890, 893 (Tex. 1991)).

      U.S. Bank’s summary-judgment evidence establishes that, under its terms,

Biedryck’s note would have matured on April 1, 2035. However, U.S. Bank on

July 6, 2012, sent Biedryck a Notice of Default and Intent to Accelerate. And, on

August 7, 2012, U.S. Bank sent Biedryck a “Notice of Acceleration,” stating that it

had not received payment and therefore had “elected to accelerate the maturity of

the debt.” See Holy Cross, 44 S.W.3d at 566 (noting acceleration requires notice

of intent to accelerate and notice of acceleration). Thus, U.S. Bank’s cause of

action accrued on August 7, 2012, the date that it accelerated Biedryck’s debt. See

Khan, 371 S.W.3d at 353 (noting date of acceleration constitutes date of accrual).

U.S. Bank then filed its application for foreclosure on September 20, 2012, which



                                         9
was within the four-year-limitations period. See TEX. CIV. PRAC. & REM. CODE

ANN. § 16.035(b).

       Biedryck argues that U.S. Bank’s cause of action actually accrued in March,

August, or December 2007, because these are the dates that he first defaulted on

the note and U.S. Bank first sent him notices regarding acceleration of his loan.

U.S. Bank notes that although it had previously accelerated the loan, it abandoned

each of its prior accelerations by accepting payments from Biedryck and entering

into the loan forbearance and modification agreements with him.

       Once a noteholder has accelerated a note, it may abandon its acceleration by

agreement or by continuing to accept payments “without exacting any remedies

available to it upon declared maturity.” Holy Cross, 44 S.W.3d at 566–67; Khan,

371 S.W.3d at 353. Abandonment of acceleration restores the contract to its

original terms and restores the note’s original maturity date. Khan, 371 S.W.3d at

353.

       Here, the summary-judgment evidence does show that U.S. Bank, on

November 7, 2007, sent Biedryck a Notice of Intent to Accelerate and, on

December 21, 2007, it applied for a “Home Equity Foreclosure Order.” However,

the summary-judgment evidence further shows, and Biedryck does not dispute,

that U.S. Bank later accepted payments from Biedryck from February to April

2008 and did not take further action against him on the declared maturity.



                                        10
Although the district court, on April 1, 2008, signed U.S. Bank’s previously

requested order authorizing foreclosure on Biedryck’s property, U.S. Bank took no

affirmative steps to foreclose. Thus, U.S. Bank abandoned its acceleration. See

Holy Cross, 44 S.W.3d at 566–67.

      Although the summary-judgment evidence does show that U.S. Bank on

December 17, 2008 again accelerated the debt and sent Biedryck a Notice of

Acceleration, it also shows that U.S. Bank again accepted payments from Biedryck

from May to August 2009 and did not take action against him on the declared

maturity.   See id. Indeed, the summary-judgment evidence establishes that on

May 20, 2009, “[i]n an attempt to assist [Biedryck] to bring his loan back up to

date,” U.S. Bank entered into a SFA with Biedryck, revising his payment schedule

“in order to catch [him] up on his delinquent payments.” Thus, U.S. Bank once

again abandoned its acceleration.     See id.   And U.S. Bank, after accepting

payments from Biedryck from February through April 2010 and executing a new

SFA, then dismissed its 2010 application for foreclosure. As noted above, the

four-year statute of limitations on U.S. Bank’s power of sale accrued with its 2012

acceleration. See Khan, 371 S.W.3d at 353.

      Biedryck asserts that “[c]ontrary to the Holy Cross standard, U.S. Bank did

not continue to idly accept payments between the day when the loan was

accelerated in 2007 and when the Order was issued in 2008.” And “[r]ather than



                                        11
waiving [the] 10-month payment failure, and agreeing to accept payments that

were not made as a basis for rescinding the acceleration, U.S. Bank instead used

the payment failure as evidence” to obtain the district court’s April 1, 2008 order.

Holy Cross requires only that a lender accept payments “without exacting any

remedies available to it upon declared maturity.” 44 S.W.3d at 566–67; Khan, 371

S.W.3d at 353.

      Biedryck further asserts that U.S. Bank “exact[ed] . . . remedies available to

it upon declared maturity” by (1) filing “applications” for orders of foreclosure on

August 6, 2007 and December 21, 2007 and (2) obtaining the district court’s April

1, 2008 order authorizing foreclosure.       U.S. Bank did utilize an expedited

procedure to apply for a court order to “allow foreclosure” of a lien containing a

power of sale. See TEX. R. CIV. P. 736. However, rule 736 merely provides a

procedural device to obtain authorization to proceed with the remedy of

foreclosure. See id. cmt. And the district court’s April 1, 2008 order expressly

states that U.S. Bank “may” proceed with foreclosure. It is undisputed, however,

that U.S. Bank did not proceed.      Rather, it executed an SFA with Biedryck,

allowing him to restructure his payments.

      Biedryck next argues that the limitations period was not “tolled” because the

parties did not execute an extension agreement. See TEX. CIV. PRAC. & REM. CODE

ANN. § 16.036. The four-year limitations period can be suspended by filing a



                                        12
written agreement in the county clerk’s office where the real property is located.

Id.; Holy Cross, 44 S.W.3d at 567. Suspension of the statute of limitations,

however, “does not concern the acceleration of a note or the abandonment of that

acceleration.” Khan, 371 S.W.3d at 355–56 (discussing inapplicability of section

16.036 to abandonment of acceleration). Biedryck also argues that the SFAs did

not “toll the statutory limitations” period because they were illusory, in that U.S.

Bank expressly retained its right to foreclose.        However, a formal written

agreement is not required to abandon acceleration, and a note holder may abandon

acceleration by action alone and without an express agreement. Holy Cross, 44

S.W.3d at 566–67; Khan, 371 S.W.3d at 356; Santibanez v. Saxon Mortgage, Inc.,

No. 11-10-00227-CV, 2012 WL 3639814, at *2–3 (Tex. App.—Eastland Aug. 23,

2012, no pet.) (mem. op.) (“parties can abandon acceleration by their actions

alone”).

      Taking as true all evidence favorable to Biedryck and indulging every

reasonable inference in his favor, as we must, we conclude that U.S. Bank

conclusively established, as a matter of law, that its lien and power of sale had not

expired. Accordingly, we hold that the district court did not err in granting U.S.

Bank summary judgment.

      We overrule Biedryck’s first issue.




                                         13
                     Constitutionality of Loan Modification

      In his second issue, Biedryck argues that the district court erred in granting

U.S. Bank summary judgment because the “Loan Modification, and its closing,

[are] void as a matter of law.” See TEX. CONST. art. XVI § 50(a)(6). He also

asserts that “issues of material fact concerning the loan modification’s validity”

preclude summary judgment.

      We note that Biedryck, in his petition, did not seek a declaration from the

district court on this point. And U.S. Bank did not move for summary judgment on

this ground. Rather, in his response to U.S. Bank’s summary-judgment motion,

Biedryck argued for the first time that the 2009 LMA “is not a valid home equity

lien” because it failed to state that it was a security instrument; increased the lien

against the property to more than eighty percent of the property value; added fees

that could have exceeded the three percent limit; was not preceded by a twelve-day

notice; and was signed at his home.

      To the extent that Biedryck asserts that the LMA is invalid and therefore

cannot support U.S. Bank’s abandonment of acceleration, other evidence, as

discussed above, establishes such abandonment as a matter of law.

      Moreover, the Texas Supreme Court, in Sims v. Carrington Mortgage

Services, L.L.C., recently held that “[i]f the restructuring of a home equity loan

does not involve a new extension of credit, the requirements of Section 50(a)(6) do



                                         14
not apply.” 440 S.W.3d 10, 15 (Tex. 2014). In Sims, the borrowers and their

lender entered into a loan modification agreement, which lowered the interest rate

and payments, capitalized past-due interest, fees, property taxes, and insurance

premiums, and provided that all of the obligations under the original note and

security agreement remained unchanged. Id. at 12. Subsequently, the borrowers

brought a class action suit against the lender, alleging that the loan modification,

for them and other similarly situated borrowers, violated Article XVI, section 50 of

the Texas Constitution. Id. at 13–14. And the United States Court of Appeals for

the Fifth Circuit certified the following question, among others, to the Texas

Supreme Court:

       After an initial extension of credit, if a home equity lender enters into
       a new agreement with the borrower that capitalizes past-due interest,
       fees, property taxes, or insurance premiums into the principal of the
       loan but neither satisfies nor replaces the original note, is the
       transaction a modification or a refinance for purposes of Section 50 of
       Article XVI of the Texas Constitution?

Id. at 13. In answering the question, the supreme court explained that

       the restructuring of a home equity loan that . . . involves capitalization
       of past-due amounts owed under the terms of the initial loan and a
       lowering of the interest rate and the amount of installment payments,
       but does not involve the satisfaction or replacement of the original
       note, an advancement of new funds, or an increase in the obligations
       created by the original note, is not a new extension of credit that must
       meet the requirements of Section 50.

Id. at 17.




                                          15
      Here, like the loan modification agreement in Sims, Biedryck’s LMA shows

that it “amends and supplements” the note and deed of trust dated March 17, 2005,

and the “amount payable under the Note and Security Instrument” is $61,404.39,

which consists of “unpaid amount(s) loaned . . . plus any interest and other

amounts capitalized.” The LMA lowered Biedryck’s interest rate to five percent

and his monthly payments to $308.82.          And the LMA notes that the prior

obligations under the note and security instrument were still in force. See id. at 12.

Thus, Biedryck’s LMA did not constitute a new extension of credit subject to the

requirements of section 50(a)(6). See id. at 17.

      We overrule Biedryck’s second issue.

                                    Conclusion

      We affirm the judgment of the district court.




                                              Terry Jennings
                                              Justice

Panel consists of Justices Jennings, Massengale, and Lloyd.




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