     Case: 19-50816      Document: 00515483347         Page: 1    Date Filed: 07/09/2020




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

                                                                                 FILED
                                    No. 19-50816                              July 9, 2020
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
ELAINE HUCKABY; J. NEAL HUCKABY,

              Plaintiffs–Appellants,

v.

HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee for Nomura
Asset Acceptance Corporation, Alternative Loan Trust, Series 2700-1
Mortgage Pass-Through Certificates, Series 2700-1,

              Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Western District of Texas
                               USDC 1:18-CV-431


Before OWEN, Chief Judge, and SOUTHWICK and WILLETT, Circuit Judges.
PER CURIAM:*
       The Huckabys have been in default on their 2006 home equity loan since
January 2011. Starting in April 2012, the banks that have held the note for
the loan have accelerated the loan and then rescinded the accelerations several
times. On one occasion, HSBC, the current holder of the note, accelerated the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 19-50816

loan, sent “a mortgage statement requesting less than the accelerated [l]oan
balance,” and then rescinded its acceleration of the loan. The Huckabys sought
a declaratory judgment in the district court “that there is no valid lien or debt
on their home.” They also alleged HSBC violated the Texas Debt Collection
Practices Act (TDCPA) by threatening to foreclose on the Huckabys’ house. 1
The magistrate judge recommended summary judgment in favor of HSBC on
both claims. The Huckabys did not object to the magistrate’s report and
recommendations. The district court adopted the magistrate judge’s report
and recommendations and granted summary judgment to HSBC. This appeal
followed.
       The Huckabys ask us whether “the district court err[ed] in finding [that
the Huckabys] did not submit sufficient proof that abandonment of [the March
15, 2018] acceleration had occurred.” Insofar as this is an evidentiary issue
related to the validity of the lien, it is irrelevant because HSBC voluntarily
rescinded the March 15, 2018 acceleration before the statute of limitations
governing the lien took effect. 2 Thus, resolving whether HSBC abandoned the
acceleration of the loan before its recision of that same acceleration would not
affect the validity of the lien. Either way, the original maturity date on the
note was restored. 3
       To the extent the Huckabys’ question is an evidentiary issue related to
their TDCPA claim, it is also unavailing. HSBC did not violate the TDCPA
when it threatened to foreclose on the loan because HSBC “retained its




       1  See TEX. FIN. CODE ANN. § 392.301.
       2  See TEX. CIV. PRAC. & REM. CODE ANN. §§ 16.035, 16.038.
        3 See Boren v. U.S. Nat’l Bank Ass’n, 807 F.3d 99, 104 (5th Cir. 2015) (“‘Abandonment

of acceleration has the effect of restoring the contract to its original condition,’ thereby
‘restoring the note’s original maturity date’ for purposes of accrual.” (quoting Khan v. GBAK
Props., Inc., 371 S.W.3d 347, 353 (Tex. App.—Houston [1st Dist.] 2012, no pet.))).

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                                        No. 19-50816

contractual right to foreclose and the [loan] was in fact in default.” 4 This fact
remains true “irrespective of any statutory notice requirements,” including
whether an acceleration of the loan was abandoned and not restarted. 5
Therefore, the Huckabys would not prevail on their TDCPA claim even if we
conclude that HSBC abandoned its acceleration of the loan and then
threatened foreclosure with an unaccelerated debt.
                                    *        *         *
       The district court’s judgment is AFFIRMED.




      4   Rucker v. Bank of Am., N.A., 806 F.3d 828, 831 (5th Cir. 2015) (emphasis omitted)
(citing McCaig v. Wells Fargo Bank, N.A., 788 F.3d 463, 478 (5th Cir. 2015)).
        5 Id.



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