     Case: 18-10494      Document: 00515036230         Page: 1    Date Filed: 07/16/2019




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


                                    No. 18-10494                             FILED
                                                                         July 16, 2019
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
GAYA HOLMAN,

                                                 Plaintiff-Appellant

v.

NATIONSTAR MORTGAGE, L.L.C.; US BANK NATIONAL ASSOCIATION,
as Successor Trustee to Bank of America NA, as Successor to Lasalle Bank,
NA, as Trustee for the Holders of the Merrill Lynch First Franklin Mortgage
Loan Trust, Mortgage Asset-Backed Certificates, Series 2007-1,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CV-2125


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       In July 2014, U.S. Bank National Association filed in Texas state court
an application for an expedited order to foreclose on a home owned by Gaya
Holman. In November 2014, Holman, proceeding pro se, initiated the instant
civil action by filing a petition in Texas state court to stave off foreclosure; she


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10494

named U.S. Bank and Nationstar Mortgage, L.L.C., as defendants.               She
asserted that the applicable statute of limitations barred foreclosure. The civil
action was removed to federal district court.
         The district court granted summary judgment in favor of U.S. Bank and
Nationstar (collectively, “the Lenders”). Holman, proceeding pro se, appeals.
She attacks the grant of summary judgment only on the statute-of-limitations
issue.
         We review a grant of summary judgment de novo. See Sossamon v. Lone
Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009). 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). We construe the facts in Holman’s favor. See Sossamon, 560
F.3d at 326.
         Under Texas law, “[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). Here, the parties agree that an acceleration
occurred in 2009, which resulted in accrual of the cause of action. Instead, the
crux of the dispute concerns whether the district court correctly determined on
summary judgment that foreclosure was not time-barred because the 2009
acceleration was abandoned, such that the Lenders’ foreclosure action was
initiated within the four-year limitations period.
         A noteholder may unilaterally abandon acceleration after its exercise
“when it ‘put[s] the debtor on notice of its abandonment . . . by requesting
payment on less than the full amount of the loan.’” Boren v. U.S. Nat’l Bank
Ass’n, 807 F.3d 99, 106 (5th Cir. 2015) (alteration and omission in original)
(quoting Leonard v. Ocwen Loan Servicing, L.L.C., 616 Fed. App’x 677, 680



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                                  No. 18-10494

(5th Cir. 2015) (per curiam) (unpublished)). Given Boren, and in view of the
summary-judgment evidence, the district court did not err in determining that
the 2009 acceleration was abandoned. See id. Because the abandonment issue
is resolved based on the application of Boren, we need not decide whether the
Lenders abandoned acceleration earlier by accepting payments Holman made
pursuant to a repayment plan.
      This does not end our inquiry, however, because Holman argues that she
objected to the Lenders’ abandonment of acceleration. Texas intermediate
courts have suggested that “the holder of a note may not unilaterally abandon
acceleration if the borrower objects to abandonment.” Jatera Corp. v. U.S.
Bank Nat’l Ass’n, as Tr., for Registered Holders of Citigroup Mortg. Loan Tr.,
917 F.3d 831, 836 (5th Cir. 2016) (quoting Sims v. Roundpoint Mortg. Servicing
Corp., 760 F. App’x 306, 311 (5th Cir. 2019) (per curiam) (unpublished)); see
also Boren, 807 F.3d at 105 (collecting cases). However, we review this issue
under the plain-error standard because Holman did not object to the
magistrate judge’s report on that basis. See Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded by statute on
other grounds, 28 U.S.C. § 636(b)(1).
      Even assuming the district court erred by finding the Lenders
abandoned acceleration despite Holman’s objections, its error was not “clear or
obvious.” Septimus v. Univ. of Hous., 399 F.3d 601, 606-07 (5th Cir. 2005).
Holman first asserts that she objected to the abandonment of acceleration by
filing a response to the Lenders’ state-court foreclosure action and by filing her
complaint in this action.     But “[w]e have routinely declined to treat a
subsequent lawsuit for a declaratory judgment as an objection to
abandonment.”     Sims, 760 F. App’x at 312.       In her reply brief, Holman
additionally cites to various correspondence she sent the Lenders objecting to



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their notices of default. However, these objections dispute the amount of
Holman’s debt; they do not challenge the Lenders’ decision to abandon the
earlier acceleration.   It is neither clear nor obvious that these objections
prevented the Lenders from unilaterally abandoning the acceleration under
Texas law.
      The judgment of the district court is AFFIRMED.




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