                             NUMBER 13-17-00607-CV

                                 COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


SETH RIVERA,                                                                          Appellant,

                                               v.

BAPTIST FOUNDATION
OF TEXAS,                                                                              Appellee.


                      On appeal from the 404th District Court
                           of Cameron County, Texas.


                            MEMORANDUM OPINION
  Before Chief Justice Contreras and Justices Benavides and Yañez 1
               Memorandum Opinion by Justice Yañez

       Appellant Seth Rivera appeals the trial court’s denial of his motion for summary




       1  Retired Thirteenth Court of Appeals Justice Linda Yañez, assigned to this Court by the Chief
Justice of the Supreme Court of Texas pursuant to the government code. See TEX. GOV’T CODE ANN.
§ 74.003.
judgment. By his sole issue, Rivera contends the trial court erred in ruling that the statute

of limitations period had not run for the collection and foreclosure of real estate. We

affirm.

                                       I.     BACKGROUND

           Rivera purchased real property from the Verbeek family in 1999. He made

monthly lien note payments pursuant to the terms of their agreement. Rivera made his

last payment on December 14, 2007 and was subsequently delinquent on his payments.

On or about April 23, 2008, Verbeek’s attorney sent Rivera a “Demand for Payment”

which referenced the note’s optional acceleration clause (2008 demand). Verbeek did

not foreclose on the lien.

          Subsequently, appellee Baptist Foundation of Texas (Baptist Foundation) inherited

Verbeek’s interest in the property. On or about February 9, 2016, Baptist Foundation sent

Rivera a notice of foreclosure and notice of substitute trustee sale for the property. Rivera

sued Baptist Foundation, seeking to enjoin Baptist Foundation from foreclosing. Baptist

Foundation answered and filed a counterclaim.          Rivera filed a motion for summary

judgment arguing that because demand for payment was made in April 2008, the

applicable four-year statute of limitations barred Baptist Foundation from foreclosing on

the property eight years later. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.035(a).

Following a hearing, the trial court denied Rivera’s motion, and after a bench trial, it

rendered judgment in favor of Baptist Foundation. This appeal followed.

                                 II.        SUMMARY JUDGMENT

          By his first issue, Rivera challenges the trial court’s denial of his motion for

summary judgment.



                                                2
A.    Standard of Review

      We review de novo a trial court’s ruling on a summary judgment motion. Wells

Fargo Bank, N.A. v. Ballestas, 355 S.W.3d 187, 191 (Tex. App.—Houston [1st Dist.] 2011,

no pet.). To succeed on a summary judgment motion under Texas Rule of Civil Procedure

166a(c), a movant must establish that there is no genuine issue of material fact so that

the movant is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Wells

Fargo, 355 S.W.3d at 191. A plaintiff moving for summary judgment on its affirmative

claims must conclusively prove all elements of its cause of action or defense as a matter

of law. TEX. R. CIV. P. 166a(c); Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d

562, 566 (Tex. 2001). To conclusively establish a matter, the movant must show that

reasonable minds could not differ as to the conclusion to be drawn from the evidence.

City of Keller v. Wilson, 168 S.W.3d 802, 814 (Tex. 2005). The evidence is reviewed in

the light most favorable to the non-movant, crediting favorable evidence if reasonable

jurors could and disregarding contrary evidence unless reasonable jurors could not.

Wells Fargo, 355 S.W.3d at 191.

B.    Applicable Law

      A foreclosure suit must be filed within four years after the cause of action accrues.

TEX. CIV. PRAC. & REM. CODE ANN. § 16.035(a). A cause of action for foreclosure does

not accrue “until the maturity date of the last note, obligation, or installment.”      Id.

§ 16.035(e). “On 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). If a

note contains an optional acceleration clause, defaulting on the note does not

automatically begin the statute of limitations. Holy Cross, 44 S.W.3d at 566. Rather, the



                                            3
statute of limitations does not start to run until the holder of the note actually exercises its

option to accelerate. Id. “Effective acceleration requires two acts: (1) notice of intent to

accelerate, and (2) notice of acceleration.” Id.         Each notice must be “clear and

unequivocal.” Id. (quoting Shumway v. Horizon Credit Corp., 801 S.W.2d 890, 893 (Tex.

1991)).

C.     Discussion

       On April 23, 2008, Verbeek’s attorney sent Rivera a “Demand for Payment” which

included the following notice of intent to accelerate:

       In the event that the past due and owing amount has not been brought
       current by that date, the principal balance due and owing on the note will be
       accelerated and I have been instructed to commence proceedings to
       foreclose on the property under the Deed of Trust lien.

Rivera argues the 2008 demand accelerated the note and triggered the four-year

limitations period because it was an unequivocal notice of intent to accelerate and notice

to accelerate. However, the 2008 demand merely provided notice of intent to accelerate

if Rivera did not become current on his payments. In fact, Rivera acknowledges that

Verbeek sent Rivera a “Demand for Payment and Notice of Intent to Accelerate on or

about April 23, 2008.”     Furthermore, the language within the notice was clear and

unequivocal: if payment is not made, the balance will be accelerated. See Holy Cross,

44 S.W.3d at 566 (providing that an optional acceleration clause must be actually

exercised to start running of limitations). Such notice of intent to accelerate fulfilled only

the first step of effective acceleration and did not trigger the limitations period. See id.;

Karam v. Brown, 407 S.W.3d 464 (Tex. App.—El Paso 2013, no pet.) (“So long as it is

preceded by the required notice of intent to accelerate, notice of a trustee’s sale

constitutes unequivocal action indicating the debt is accelerated”); Burney v. Citigroup

                                               4
Glob. Mkts Realty Corp., 244 S.W.3d 900, 904 (Tex. App.—Dallas 2008, no pet.) (holding

that notice of filing an expedited application for foreclosure after the requisite notice of

intent to accelerate is sufficient to constitute notice of acceleration); Meadowbrook

Gardens, Ltd. v. WMFMT Real Estate Ltd. P’ship, 980 S.W.2d 916, 919 (Tex. App.—Fort

Worth 1998, pet. denied) (holding that notice of intent to accelerate coupled with notice

of foreclosure sale amounted to notice of acceleration); McLemore v. Pac. Sw. Bank,

FSB, 872 S.W.2d 286, 292–93 (Tex. App.—Texarkana 1994, writ dism’d) (holding that

notice of intent to accelerate followed by notice of trustee’s sale constitutes notice of

acceleration). Therefore, we conclude that summary judgment in Rivera’s favor would

have been improper. Accordingly, we overrule Rivera’s sole issue.

                                   III.    CONCLUSION

       We affirm the trial court’s judgment.



                                                        LINDA YAÑEZ,
                                                        Justice



Delivered and filed the
27th day of June, 2019.




                                               5
