     Case: 16-51343      Document: 00514103221         Page: 1    Date Filed: 08/04/2017




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

                                                                                     FILED
                                    No. 16-51343                                August 4, 2017
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee for SABR
Trust 2004-OPI, Mortgage Pass-Through Certificates, Series 2004-OPI,

              Plaintiff - Appellee

v.

MARIO A. MATA; LILY C. MATA,

              Defendants - Appellants




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:14-CV-909


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Defendants-Appellants Mario A. Mata and Lily C. Mata appeal the
district court’s final judgment permitting Plaintiff-Appellee Wells Fargo Bank,
National Association, as Trustee for SABR Trust 2004-OPI, Mortgage Pass-
Through Certificates, Series 2004-OPI (“Wells Fargo”) to foreclose on certain




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-51343
real property, located at 2804 Hubbard Circle, Austin, Texas 78746, more
specifically described as:
      FIELD NOTES DESCRIBING 0.568 ACRES OF LAND, MORE
      OR LESS, A PART OF THE HENRY P. HILL LEAGUE, TRAVIS
      COUNTY, TEXAS, BEING THAT SAME TRACT OF LAND
      DESCRIBED AS 0.568 ACRES OF LAND IN VOLUME 846,
      PAGE 551, DEED RECORDS TRAVIS COUNTY, TEXAS.
      In brief, Mr. Mata executed a note in the principal amount of $380,000
on December 3, 2003, secured by granting a security interest on the property
described above. The terms of the note specified that failure to pay the full
monthly amount due on the note constitutes default and permits the
acceleration of all sums secured by the security instrument. Mr. Mata first
defaulted in 2009, and Wells Fargo notified him of its intent to accelerate.
Wells Fargo then initiated its first foreclosure proceeding in state court in
2009, but it abandoned the suit in 2010 by filing a motion for nonsuit.
      On April 9, 2010, Wells Fargo sent a second notice of acceleration and
filed a second foreclosure proceeding in state court on April 27, 2010. Wells
Fargo again abandoned this second acceleration by filing a motion for nonsuit
on October 13, 2010. On September 24, 2014, Wells Fargo sent a third notice
of acceleration and filed this foreclosure proceeding in federal court on October
1, 2014.
      Wells Fargo filed a motion for summary judgment permitting it to
foreclose on the property, and the Matas objected, citing a number of reasons.
In a carefully reasoned order issued on October 12, 2016, 1 the district court
determined that Wells Fargo did in fact have the right to foreclose and that
none of the Matas’ objections are valid. It issued a final judgment to that effect,
and the Matas timely appealed.


      1 Wells Fargo Bank v. Mata, No. A-14-CA-00909-SS, 2016 WL 7616627 (W.D. Tex. Oct.
12, 2016).
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                                      No. 16-51343
         The Matas raise a single issue: whether Wells Fargo’s right to foreclose
was barred by the four-year statute of limitations under TEX. CIV. PRAC. &
REM. CODE § 16.035(a). That period runs from the time a note is accelerated,
but Texas law provides that a noteholder may abandon acceleration “by
agreement or other action of the parties,” essentially resetting the statute of
limitations. 2 The Matas argue that Wells Fargo’s October 13, 2010, motion for
nonsuit was legally insufficient to evidence abandonment, so the clock
continued to run and in fact expired before Wells Fargo filed this third suit on
October 1, 2014.
         We reject this argument essentially for the same reasons as the district
court. The district court noted that the Matas acknowledge that Wells Fargo’s
first motion for nonsuit was sufficient to abandon its acceleration, yet
inconsistently argue that Wells Fargo’s second motion for nonsuit was
insufficient to accomplish the same thing. Texas law is clear that a plaintiff
has an absolute right to abandon a suit at any time before trial under TEX. R.
CIV. P. 162, and the Matas have cited no authority for restricting that right in
any way with respect to Wells Fargo’s second abandonment in 2010. 3
Accordingly, Wells Fargo’s second abandonment was sufficient to restart the
clock, and this foreclosure proceeding was timely filed less than four years
later.
         The judgment of the district court is AFFIRMED.




         2Id. at *3 (quoting Khan v. GBAK Properties, Inc., 371 S.W.3d 347, 353 (Tex. App.—
Houston [1st Dist.] 2012, no pet.)).
        3 We also agree with the district court’s conclusion that the Matas failed to provide

sufficient evidence to support their alternative theory that the second abandonment was
ineffective because they had objected to Wells Fargo’s motion for nonsuit or detrimentally
relied on the notice of acceleration. Id. at *4.
                                             3
