     Case: 18-40014      Document: 00514538129         Page: 1    Date Filed: 07/02/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 18-40014                             July 2, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
JOHN C. KING,

              Plaintiff - Appellant

v.

SELECT PORTFOLIO SERVICING, INCORPORATED; U.S. BANK, N.A.,
Successor Trustee to Bank of America, N.A., as Successor Trustee to LaSalle
Bank, N.A., as Trustee for the Holders of Merrill Lynch First Franklin
Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-
FF18,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:15-CV-830


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       John King sought a declaratory judgment to quiet title to certain real
property. He claimed that the defendants’ interests under a deed of trust were




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 18-40014     Document: 00514538129    Page: 2   Date Filed: 07/02/2018



                                 No. 18-40014
unenforceable due to their inaction after accelerating King’s loan. The district
court disagreed and dismissed. We AFFIRM.


               FACTUAL AND PROCEDURAL BACKGROUND
        In October 2006, plaintiff John King and his then-wife executed a deed
of trust to First Franklin, conveying in trust certain real property King owned
in Frisco, Texas, in order to secure the payment of a promissory note between
Mrs. King and First Franklin. Defendant U.S. Bank has succeeded to First
Franklin’s interest, and defendant Select Portfolio Servicing (“SPS”) is the
current loan servicer. King has made no payments on the loan since April
2008.
        After the Kings defaulted, SPS’s predecessor accelerated the debt in
November 2008.       The notice of acceleration stated that the Kings owed
$191,284.92 in principal, interest, and assorted fees. Nothing relevant here
occurred thereafter until December 2010, when the then-loan servicer sent
King’s wife a notice of default and intent to accelerate. It was mailed to the
property address and to a second address. This 2010 notice declared the loan
in default but that a payment of “$55,843.54 plus any additional regular
monthly payment or payments, late charges, fees and charge[s] which become
due on or before January 5, 2011,” would cure the default. Failure to cure the
default could result in foreclosure. In 2012, two additional notices of default
and intent to accelerate were mailed to the Kings. All prior accelerations were
rescinded in October 2014.
        In October 2015, King filed a petition in Texas state court seeking a
declaratory judgment that would quiet title to his property. King argued that
because the defendants failed to foreclose on the property within the Texas
four-year statute of limitations that began when they accelerated the loan in
2008, any claim they had to the property is time-barred. The defendants
                                       2
    Case: 18-40014         Document: 00514538129        Page: 3     Date Filed: 07/02/2018



                                       No. 18-40014
answered, denying King was entitled to any relief, and then filed a timely
notice of removal to the United States District Court for the Eastern District
of Texas. The defendants moved for summary judgment, claiming that they
had abandoned acceleration and thus the statute of limitations was
inapplicable. The district court 1 agreed with the defendants and granted their
motion.


                                      DISCUSSION
      We review a grant of summary judgment de novo. Boren v. U.S. Nat’l
Bank Ass’n, 807 F.3d 99, 103 (5th Cir. 2015).                     Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a).
      The central issue in this appeal is whether the defendants abandoned
their initial 2008 acceleration of the loan through the 2010 or 2012 notices of
default. If not, the 2014 attempt to rescind prior notices of acceleration was
too late, and the defendants’ claim to the property is time-barred.
      “A person must bring suit for the recovery of real property under a real
property lien or the foreclosure of a real property lien not later than four years
after the day the cause of action accrues.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 16.035(a). “If 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). If there is an optional acceleration clause,
though, the cause of action accrues when that option is exercised. Holy Cross
Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001).


      1   The parties consented to having a magistrate judge conduct proceedings in the case.
                                              3
    Case: 18-40014    Document: 00514538129     Page: 4   Date Filed: 07/02/2018



                                 No. 18-40014
      A lender can unilaterally abandon acceleration. Boren, 807 F.3d at 105.
“Abandonment of acceleration has the effect of restoring the contract to its
original condition, including restoring the note’s original maturity date.” Khan
v. GBAK Props., Inc., 371 S.W.3d 347, 353 (Tex. App.—Houston [1st Dist.]
2012, no pet.). Abandonment may be expressed “by sending notice to the
borrower that the lender is no longer seeking to collect the full balance of the
loan and will permit the borrower to cure its default by providing sufficient
payment to bring the note current under its original terms.” Boren, 807 F.3d
at 105. Abandonment also can occur “impliedly, through conduct inconsistent
with a claim to the right.” Boren, 807 F.3d at 106 (quoting G.T. Leach Builders,
LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 511 (Tex. 2015)).
      King argues that none of the notices of default were effective at
abandoning the acceleration, while the defendants argue that each notice of
default effectively abandoned any prior acceleration. We evaluate first the
2010 notice of default, which King challenges in both form and substance.
      King’s arguments about the 2010 notice, which he stipulated his wife
received though not “until almost Christmas of 2010,” focus on two formal
requirements found in the deed of trust. One concerns the dating of when the
lender is deemed to have given notice, and the other concerns the time period
for the borrower to respond after notice is given. The parties dispute whether
the notice of default had to comply with either requirement in order to
communicate intent to abandon.
      As to the applicable date of the notice, King emphasizes this language:
“Any notice to Borrower in connection with this Security Instrument shall be
deemed to have been given to Borrower when mailed by first class mail or when
actually delivered to Borrower’s notice address if sent by other means.” He
then argues that because the notice was sent by certified mail, not first-class
mail, such notice is “deemed to have been given” only on the date it was
                                       4
    Case: 18-40014     Document: 00514538129      Page: 5   Date Filed: 07/02/2018



                                  No. 18-40014
received. Under this argument, the date of December 6, 2010, printed on the
notice is not the date it will be “deemed to have been given” because it was sent
through certified mail, not first-class mail.
      We have described certified mail as “a special type of first class mail
whose primary purpose is to provide evidence of an individual’s receipt of
delivery.” Degruise v. Sprint Corp., 279 F.3d 333, 337 (5th Cir. 2002). Unlike
regular first-class mail, though, certified mail is to be returned to the sender if
the recipient does not sign for it. McCray v. Hoag, 372 S.W.3d 237, 243 (Tex.
App.—Dallas 2012, no pet.) An intermediate Texas appellate court relied on
“common sense” to declare “that regular mail is presumed delivered and
certified mail enjoys no presumption unless the receipt is returned bearing an
appropriate notation.” Id. No Texas Supreme Court decision so holding has
been discovered. We at least see questions about what if any presumptions are
applicable in Texas when notice is sent by certified mail, and whether such
presumptions should affect how to interpret the deed of trust language.
Interesting questions to some legal minds, perhaps, but irrelevant ones here
because of our analysis of the next part of King’s argument. We conclude by
relying on King’s stipulation that Mrs. King actually received the notice just
before Christmas in December 2010 (King gives the specific date of December
21 in his brief).   Thus, applying the stipulation to the terms of the deed of
trust, notice would be deemed given no later than December 24, 2010.
      King argues that the date the notice is deemed given matters. If notice
was not given until late December 2010, it was ineffective by requiring a
response by January 5, 2011, thereby allowing less that the 30 days to respond
that the deed of trust required. If the Kings did not meet that deadline, the
letter warned, the mortgage payments would be accelerated and foreclosure
proceedings would be initiated. Assuming that the notice is deemed given to
Mrs. King on a date that gave her fewer than 30 days to accept the offer and
                                        5
    Case: 18-40014     Document: 00514538129     Page: 6   Date Filed: 07/02/2018



                                  No. 18-40014
avoid acceleration, such facts would affect the ability of the lenders to use that
notice to accelerate the loan. Yet, even if the notice did not give the lender the
rights it wanted, that does not answer whether it gave the borrower rights it
could enforce. The question before us is whether the 2010 notice communicated
the lender’s intent to abandon its prior acceleration. The deed of trust does not
create any requirements for abandonment of a prior acceleration. Instead, the
answer to this question comes from Texas law on how lenders are to
communicate such a change in plans. What is required is clarity. We now
analyze that law.
      We repeat the relevant language of the notice dated December 6, 2010.
It stated that the loan was in default but that “$55,843.54 plus any additional
regular monthly payment or payments, late charges, fees and charges which
become due on or before January 5, 2011” would cure the default. As King
concedes, we have held that notice to the borrower that the lender was no
longer seeking the full balance of the loan and that it would allow the borrower
to cure the default expressed sufficiently clear intent to abandon acceleration.
See Boren, 807 F.3d at 105. Indeed, the notices in Boren (there were several)
that followed earlier notices of acceleration were quite similar to what was
given here. According to the Boren court:
      The Second Notice of Default stated that “the total amount
      necessary to bring [the Boren’s] loan current [was] $74,313.28,”
      which was an amount less than the fully accelerated balance of the
      loan. In addition, the Second Notice of Default stated that if the
      Borens did not cure their “default within forty five (45) days . . .
      [the loan servicer would] accelerate the maturity of date of the
      Note and declare all outstanding amounts under the Note
      immediately due and payable.”
Id. at 103. Despite various arguments by the borrower Boren, including citing
to a statutory procedure for rescinding an earlier acceleration that the lender
had not followed, we held that these notices effectively withdrew the earlier

                                        6
    Case: 18-40014     Document: 00514538129    Page: 7   Date Filed: 07/02/2018



                                 No. 18-40014
notices of default and stopped the running of the statute of limitations for
pursuing foreclosure. Id. at 106.
      King contends that Boren limits rescission to a situation in which the
lender permits the borrower to bring the loan current by paying in full all the
past-due amounts. It is true that in Boren, as indicated in the description of
the notice we quoted above, the offer from the lender required the borrower to
pay all arrearages under the loan — the borrower had to “cure its default.” Id.
at 105. We also stated that the lender unilaterally abandoned its prior
acceleration “by sending notice to the borrower that the lender is no longer
seeking to collect the full balance of the loan and will permit the borrower to
cure its default by providing sufficient payment to bring the note current under
its original terms.” Id.
      The December 2010 notice given to King calculated the missed monthly
payments, added certain other charges, and offered settlement if that amount
was paid. That at least is a similar offer to the one made in Boren, but that
does not matter. Regardless of whether the amount needed to reinstate the
loan here was calculated in the same manner as in Boren, that precedent
neither states nor implies that the only offer that halts acceleration is one
whose terms are comparable to those offered Boren. We also see no reason that
would be the case.   The legal issue is one of waiver, which “can occur either
expressly, through a clear repudiation of the right, or impliedly, through
conduct inconsistent with a claim to the right.” Id. at 106 (quoting G.T. Leach
Builders, 458 S.W.3d at 511). Any compromise that clearly repudiates the
earlier demand is potentially effective. The precise terms of the rescission were
part of our Boren discussion of facts but were not part of our holding.
      Here, the 2010 notice provided that the default could be cured by paying
the monthly charges, late charges, and uncollected costs, totaling $55,843.54,
on or before January 5, 2011. The district court held that the December 2010
                                       7
    Case: 18-40014    Document: 00514538129     Page: 8   Date Filed: 07/02/2018



                                 No. 18-40014
notice effectively abandoned the 2008 acceleration, which had required
payment of the entire unpaid balance of the loan. We agree that the 2010
notice was sufficient to abandon the 2008 acceleration.         Even if it was
inadequate to support a new declaration of default because it did not give the
borrower 30 days to respond to the offer, that shortcoming has no effect on its
clear declaration of abandonment of the prior acceleration.
      Because we hold that the defendants abandoned the 2008 acceleration
with the 2010 notice, the four-year statute of limitations stopped. It would
have restarted with the next valid acceleration.    The defendants claim that
the December 2010 and 2012 notices of default each restarted the statute of
limitations. These notices are irrelevant to our resolution of the case because
there was an October 2014 abandonment of prior accelerations, and King does
not contest its effectiveness. Dismissal of his claims was therefore appropriate.
      AFFIRMED.




                                       8
