     Case: 15-51017      Document: 00513554358         Page: 1    Date Filed: 06/20/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-51017                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            June 20, 2016
ISMAEL ALVARADO,                                                           Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

U.S. BANK NATIONAL ASSOCIATION, as trustee for structured asset
securities corporation mortgage pass-through certificates, series 2006-BCI,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Ismael Alvarado took out a home equity loan, experienced economic
hardship, and defaulted on his loan. The bank sold Alvarado’s home in a
foreclosure sale; Alvarado sued in Texas state court, claiming the sale was
invalid. The bank removed the case to federal court, and the district judge
entered summary judgment for the bank. Alvarado appeals.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-51017
                                I. Background
      In 2005, Ismael Alvarado took out a $135,200 home equity loan on his
home, securing the note with a deed of trust. In late 2006, Alvarado admittedly
fell behind on his loan payments. He entered into a loan modification program,
making sporadic loan payments from September 2007 through April 2008. In
September 2008, U.S. Bank—the lender—sent Alvarado a notice of default and
intent to accelerate his note; Alvarado received a notice of acceleration the next
month. One year later, in September 2009, Wells Fargo—the mortgage
servicer—notified Alvarado that he was eligible for a home loan modification
program. To accept the offer, Alvarado had to make three monthly payments
and submit the required documentation; he did so. In May 2010, Alvarado
received a mortgage statement indicating that the total amount due was
$42,671.58—less than the total amount Alvarado owed under the accelerated
note. In June 2010, Wells Fargo told Alvarado that he had been accepted into
the loan modification program. Alvarado signed and returned the agreement.
There was a problem with his application, however, and he had to sign and
submit a second application, only to be told to start the loss mitigation process
anew. Alvarado failed to make the required payments. In fact, his last payment
was applied to his July 2008 obligation. U.S. Bank notified Alvarado of his
default in late 2012, and notified him in July 2013 that his loan had been
accelerated. U.S. Bank again notified Alvarado that his loan had been
accelerated in December 2013. Alvarado’s property was sold at a foreclosure
sale in 2014.
      Alvarado sued U.S. Bank in Texas state court claiming wrongful
foreclosure. Specifically, Alvarado claimed that U.S. Bank foreclosed on his
property outside of Texas’s four-year statute of limitations under §16.035 of
the Texas Civil Practices and Remedies Code. U.S. Bank removed the case to
federal court, and both parties moved for summary judgment. The district
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                                  No. 15-51017
court granted U.S. Bank’s motion for summary judgment and dismissed all of
Alvarado’s claims with prejudice. Alvarado timely appealed. After reviewing
the briefs, record, and applicable case law, we AFFIRM.


                                  II. Analysis
                                        A.
      We review de novo a district court’s grant of summary judgment,
construing “all facts and inferences in the light most favorable to the
nonmoving party.” Boren v. U.S. Nat’l Bank Ass’n, 807 F.3d 99, 103–04 (5th
Cir. 2015). Summary judgment is appropriate when “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).


                                        B.
      This is the most recent in a line of cases asking us to apply Texas’s four-
year statute of limitations in foreclosure proceedings. 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).
After four years, “the real property lien and a power of sale to enforce the real
property lien become void.” Id. § 16.035(d). If, as here, the note or deed of trust
contains an acceleration clause, the statute of limitations begins to run “when
the holder actually exercises its option to accelerate.” Boren, 807 F.3d at 104
(quoting Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex.
2001)). Acceleration can be abandoned “by agreement or other action of the
parties [, . . .] restoring the contract to its original condition.” Khan v. GBAK
Props., 371 S.W.3d 347, 353 (Tex. App.–Houston [1st Dist.] 2012, no pet.).


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                                      No. 15-51017
       Here, U.S. Bank argues—and the district court held—that it unilaterally
abandoned its 2008 acceleration by (1) providing Alvarado a monthly mortgage
statement in 2010 showing an amount due that was less than the total
accelerated sum on the note; (2) sending Alvarado a new notice of default in
2012, again showing that the amount needed to cure the default was less than
the total accelerated of the note; and (3) sending Alvarado a final notice in 2013
that his loan was accelerated and that all sums were due and payable. The
district court was correct: “[a] lender waives its earlier acceleration when it
‘put[s] the debtor on notice of its abandonment . . . by requesting payment on
less than the full amount of the loan.’” Boren, 807 F.3d at 106 (second alteration
in original) (quoting Leonard, 616 F. App’x. at 680). Although the district court
cited Leonard for its holding, and even though Boren was published three
months before Alvarado submitted his brief to this court, Alvarado failed to
address—much less attempt to distinguish—these cases. The 2014 foreclosure
sale of Alvarado’s property was not barred by Texas’s statute of limitations.
       Because U.S. Bank sent Alvarado “account statements listing less than
the full accelerated debt, as well as notices of default and acceleration, after
the October 2008 acceleration,” the district court did not err in granting
summary judgment for U.S. Bank. 1



       1 Because we resolve this case on our straightforward Boren precedent, we do not
reach the additional or alternate reasons presented by the district court for granting
summary judgment for U.S. Bank, that (1) by accepting payments from Alvarado after the
2008 acceleration as part of his home loan modification plan, U.S. Bank abandoned its
previous acceleration, see Rivera v. Bank of Am., N.A., 607 F. App’x 358, 361 (5th Cir. 2015)
(unpublished); and (2) Alvarado’s entering into a loan modification program with U.S. Bank
in 2010 constituted abandonment of acceleration. We also do not address Alvarado’s claim
that the 2010 mortgage statement U.S. Bank sent him constituted impermissible “dual
tracking,” for two reasons. First, Alvarado’s factual claim that he made loan payments from
September 2009 through June 2010 is contradicted by the record (Alvarado himself and a
Wells Fargo representative both testified that Alvarado only made three payments, the last
in December 2009). Second, Alvarado cited no case law or authority in support of his claim.
See Fed. R. App. P. 28.
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                             No. 15-51017
                            III. Conclusion
    For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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