     Case: 17-20359      Document: 00514555681         Page: 1    Date Filed: 07/16/2018




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

                                                                                   FILED
                                    No. 17-20359                               July 16, 2018
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
REZA AHMADI; TERESA AHMADI,

              Plaintiffs - Appellants

v.

GLENVEST, L.L.C.,

              Defendant - Appellee




                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:16-CV-1730


Before CLEMENT, COSTA, and WILLETT, Circuit Judges.
PER CURIAM:*
       Reza and Teresa Ahmadi obtained a $36,200 loan—which was secured
by a lien against their home in Houston—to cover the payroll taxes for their
company, Intelligent Office Products. The loan was eventually transferred to
Glenvest, LLC. The Ahmadis fell behind on their payments, and they received
a “Notice of Demand and Intent to Accelerate” on March 3, 2009 (the “2009



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20359
Notice”). On December 23, 2013, the Ahmadis received yet another “Notice of
Demand for Payment and Notice of Intent to Accelerate” (the “2013 Notice”).
In July 2014, Glenvest sought and obtained an equity foreclosure order in
Texas state court.
      The Ahmadis sued Glenvest in Texas state court. They claimed (1) the 4-
year statute of limitations barred Glenvest from foreclosing on their property
because they received the 2009 Notice more than 4 years before Glenvest
attempted to foreclose, see TEX. CIV. PRAC. & REM. CODE § 16.035(a); and (2)
Glenvest’s attempt to foreclose was fraudulent because Glenvest intentionally
cited only the 2013 Notice and not the 2009 Notice when seeking foreclosure.
      Glenvest removed to federal court and then moved for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c). It argued that a notice
of intent to accelerate does not trigger acceleration of the maturity date. See
Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001)
(“Effective acceleration requires two acts: (1) notice of intent to accelerate, and
(2) notice of acceleration.”). Because the 4-year statute of limitations begins
running only when the maturity date is accelerated, the 2009 Notice did not
trigger the statute of limitations. See id. Glenvest also counterclaimed and
moved for summary judgment, seeking non-judicial foreclosure and attorney’s
fees. The Ahmadis filed an amended complaint, and claimed that Glenvest
accelerated the debt in an affidavit on July 3, 2014.
      The district court held a hearing and urged the parties to find an
amicable resolution to the dispute. When it became clear that no such
resolution was forthcoming, the district court granted Glenvest’s motion to
dismiss and motion for summary judgment on its counterclaim seeking non-
judicial foreclosure. The Ahmadis subsequently filed a Rule 60(b) motion, in
which they further pressed their argument that Glenvest accelerated the debt
in the July 2014 affidavit. They also requested that the district court vacate
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                                    No. 17-20359
the summary judgment award because it was procured through fraud,
“perjured testimony,” and “spoliation of evidence.” The district court denied
this motion after concluding that the Ahmadis’ arguments were supported by
nothing more than conclusory allegations.
          The Ahmadis appealed, and now bring three issues before us: (1) the
motion to dismiss should not have been granted because the statute of
limitations had run and Glenvest fraudulently sought to foreclose; (2) the
summary judgment award cannot be supported for the same reasons; and (3)
the district court should have vacated the summary judgment ruling pursuant
to Rule 60(b).
          We review a district court’s decision on a Rule 12(c) motion de novo. In
re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). We agree
with Glenvest and the district court that, under Texas law, the statute of
limitations does not begin to run until there is both a notice of intent to
accelerate and a notice of acceleration. See Holy Cross, 44 S.W.3d at 566. The
2009 Notice was only a notice of intent to accelerate, and so it was insufficient
to trigger the statute of limitations. We need not decide whether the July 2014
affidavit accelerated the debt because, even if it did, the foreclosure still would
not be barred by the statute of limitations. It follows from these conclusions
that (1) Glenvest did not commit fraud when it failed to cite the 2009 Notice
when seeking foreclosure and dismissal was appropriate; (2) granting
summary judgment was not inappropriate on these grounds; and (3) there was
no evidence of misconduct or fraud sufficient to support granting Rule 60(b) 1
relief.
          We AFFIRM the district court.



         We review a district court’s decision on a Rule 60(b) motion only for abuse of
          1

discretion. Fackelman v. Bell, 564 F.2d 734, 736 (5th Cir. 1977).
                                          3
