whether the four your statute of limitations applies in this case in a way that would void the august this two thousand and fourteen foreclosure on january twelfth two thousand and ten there was skidding there was an acceleration on january twelfth two thousand and ten we also agree there was a foreclosure on august the fifth of two thousand and fourteen which would have been beyond the four year statute of limitations after that we don't agree much it's whether they permissibly continue to accept payments or and thereby did away with he did and did that do away with the acceleration that's one when he she did it waive or abandon the the january first the january twelfth two thousand and ten acceleration that's one of the issues in this case as far as abandonment or waiver the defense brought up several several there were two cases i think of unpublished opinions that indicated kicked the wells case i think it's in the in the papers said that quoted mendoza saying that abandonment and waiver were two different things i looked in them in those a case i didn't see that in the of the court held the trial court held that on a twelve b six motion by the defendant to dismiss that they denied the motion and the case went on from there but there was no statement i saw that said waiver and an abandonment are two different things the vast majority opinion on waiver and abandonment is that waiver or that  abandonment is characterized or framed by the traditional elements of waiver there are three elements basically there's a right there person has they are knowledgeable about the right they know about it and they either intentionally give it up relinquish it or by conduct inconsistent with the right abandonment or waiver are essentially the same thing now whether one of the issues as counts as a court correctly pointed out is whether or not accepting or  asking for payments less than the accelerated amount does that does that abandon away the previous excel aeration well one thing i wanted the court to look at was firstly the forbearance cause forbearance by the lender and this is in the deed of trust or  continue with the property not foreclosing on the home i agree long with this clause that i believe says that even if they sepang means they don't waive a previous right they have which will be the right to accelerate think we're talking about two different things but that's your argument one thing i sit this last week to the court it's shields case it's a texas supreme court case they came out in may of last year that deals with waiver and whether or not waiver that you can waive a non waiver clause is basically what they were considering this was in a lease but i think it's instructive for for us to see the language they used about why don't why they're saying this they say this is on page  four seventy one of the shields case it says disposition of this matter this case ultimately turns on the force and effect of the parties not a waiver agreement which unequivocally provides a defense of waiver premised on the landlord's acceptance of late rental payments we note and this is i think we can agree with  i think this is what we can agree with we know our appellate courts have treated nine waiver provisions inconsistently we may therefore exercise jurisdiction over this appeal despite its origin because an opinion of this court addressing the matter would remove unnecessary uncertainty in the law and unfairness to litigants so in this case the lease says that the landlord by except ing payments late for less than the total amount would not be a waiver of his right to get possession of that of the premises  if even if he accepted these payments so there was a non waiver clause in the language of the non waiver clause in the shields case where the reasons i said it was it's so similar to the non waiver clause we have in our in the sexton case in their security agreement where it says they can accept payments less than the accelerated amount and still not waive their their rights so the question goes back to was the acceleration on january twelfth two thousand and ten was it wait or basically do you want us to find a fact issue on the point but if you want us to find a fact issue on the point is that what you want from us today i think we  would like first to have the case rendered in our favor on the basis of the non waiver clause or reversed always odd because the people who have the property who are living in the property they always want to payments to be excepted and for the acceleration to go away could tell and but then it did back in and you want to say that big celebration didn't go away because you want to argue limitations is over and over again so but really if you'd asked them on the first day they were disappointed as we hope the accelerations gone away and this is so you they're arguing something different because it's a bit advantage later on than what they would have wanted it bought at the time and this is it can you help me with that one might wonder why  company or a service intently doesn't just say we're going to work with you a loan modification we're going to waive the previous acceleration why don't they do that my belief is they don't do it because they want the sword of damocles above the head of the home of so that he's pressured to make payments to participate to try to get up to date and because they could easily and there in the legislature recognize this and passed a bill rule in the sim practice remedies code that says if a mortgage company wants to waive it acceleration they could do it by telling the homeowner they waive the acceleration just a simple right so the question here is does the offering to accept payments less than the excel or leave them out does that wave the circuit two thousand and fifteen case well i think we don't have to have an eerie guess on this case because here's a supreme court of texas coming down saying what the law of of not a waiver is so you believe it and there's an interceding texas supreme supreme court of texas case that should cause us to reflect again on what we decided or and yes that's that's we don't have to about whether it's about whether there's a nod waver clause and as the court says we're trying to clear this up to this misunderstanding or this confusion where they call it  we know that our appellate courts have treated nine waiver provisions inconsistently and if you look at them they are inconsistent the you know whether or not there's a except in payments less than the accelerator them out are cases that say that that is that doesn't waive the acceleration of the boring case and leonard and the cases cited by the by don't spank they do say that except for making offers of payment and accepting payments less than the excel rated amount that that does waive the acceleration so we're asking the court to look at this let's say to clear this up we have made a request for a certified question to the texas supreme court but i believe the court said this is a stretch but i believe this answers question as to whether or not there is a waiver or whether or not to ask the question are asking the question that this shields case ok answers the question of whether or not a non waiver clause does keep the party with the right from waiving that right they don't you just because except payments talk to the about addressing shields right up front shields doesn't have anything to do with this case the issue in shields was one the enforceability of a non waiver clause in the agreement and to whether a party can waive a non waiver agreement isn't that an issue in this case your honor it's not why not the sexton certainly don't argue that the parties have waived the not waiver clause and the bank doesn't argue that the non waiver clause has been waived either and the bank doesn't need to argue that the normal way because has been waived because that clause does not address the abandonment of a past acceleration provision in a contract and recognize that it doesn't apply to the situation at hand this court in justice answered the question what is the effect of the on waiver because on the abandonment of the past acceleration do you think that because it's one is still in the lease context and one is in the you know in the mortgage context that that that's why shields doesn't apply because it does seem that the language of shields said we got all these problems and i took it to be all these problems includes in this this very common context as well i haven't considered whether the lease versus mortgage i don't think that does make a lesser payments it did it whether it was waive the fee why is it that some argument that it didn't wait i think abandonment of the past acceleration is a different question than the directly the court said there were two distinct issues at stake in this case one was abandonment of existence of an existing acceleration and the second one was the waiver of defendant's right to accelerate in the future now we're better than on published opinion but it is persuasive authority on this point and it is consistent with decisions in the wells opinion and then those opinion both of those are district court cases and i'll point out know i sent a twenty eight a letter to the court last week there's a decision from about a month ago bracken versus wells fargo in which the dallas court of appeals was faced with precisely the same argument from the same attorneys and that the dallas court of appeals in brockton said that the analysis of this court and justice was correct and so you have an indication from the state intermediate court of appeals that this court is correctly applying texas law in the justice case the court said the non waiver clause applies only to the question of a lender's right to accelerate or to enforce other rights and remedies in the future it does not address the abandonment of an existing acceleration and one way that i have thought about this is that the not a waiver clause is forward looking at talks about non waiver of the exercise of rights  limits when you talk about the exercise you're implying something that needs to be done in the future not addressing whether or not a past excel aeration can be a band  isn't there a fact issue because the b r p a's say that they have the right to proceed with foreclosure they keep reminding of the foreclosure and if it's been labor is ordinarily waiver abandonment is ward an early question of where the facts are not disputed it is a question of law here the facts are not disputed the terms of the r p s the terms of the subsequent notices of default  the terms of the subsequent monthly invoices all of that's in the record the sexton's have admitted to the receipt of all of the start up but i'm saying the documents themselves on their face have some weird thing if they have some them there are inconsistent with the position that they've been abandoned i don't think those are inconsistent your honor and you mentioned in the r p s there's a provision that says if sexton doesn't comply with that payment per terms of the repayment plan agreement then he would be in default and that the lender would not be required to give an additional notice of default no it says records indicate that your loan is in foreclosure in the foreclosure different about one of the monthly a monthly statement and then the other said that you you would have the right to proceed with the foreclosure it doesn't mean a new foreclosure it means the foreclosure action that's already been disclosed let me be definitely evidence in the record that the bank was intending to abandon but my question is on the face of the same monthly statements is there some evidence by saying it is in foreclosure evidence to the contrary such that your own statements themselves are what are creating the fact i don't think that creates a fact issue because each of those statements only requests less than the full exonerated amount of the so we should just ignore the part that says that they in foreclosure i don't think that's inconsistent with an abandonment of acceleration when you're not in foreclosure if the bit if you bandon minute are cheap you're not technically in foreclosure if exhilaration has been abandoned i don't know acceleration the substance of the law each of those notices faults say here's the amount needed to hear this an amount less than the full eight celebrated amount of the debt each of those notices fault also say if you don't cure the default then we will accelerate each of those demands less than the full excel rated amount of the do each of them says we will accelerate if you don't hear meaning it's not excel or rate at this point but it might be accelerated in the future in the court in born said after accelerating the debt or quest for payment of less than the full obligation is an unequivocal expression of the bank's intent to abandon it will waive its initial under boren the question whether the lender in this case abandoned acceleration is settled there's no question that that those notices to default even considered without any of the other documents would have aband acceleration the facts here are not distinguishable both from born as far as the notice of default are concerned this court repeatedly has followed on and as illustrated in the two cases that were the subject of my twenty i j letter both the n f l case in fort worth and the bracken case in the dallas court of appeals both of them applied born and found in a pan i'm not a big celebration on facts that are not distinguishable from the facts i do remember recall if those cases involve monthly statements that had language like that you know i don't i think this is a new issue so that's the problem well the monthly statements also were sent from november two thousand and eleven to november two thousand and thirteen if i recall correctly all of them are in the record that subsequent notices of default were sent in april may august september and november of two thousand and ten all of those would have been sent long before any of those monthly statements were would have been sent all of those independently were sufficient or each of them independently was sufficient to abandon the acceleration when they were sent each of them say you can cure your default by paying less than the full look celebrated amount of the debt and each of them say we will excel great if you don't cure your default that under boren is abandonment of acceleration as a matter of law the repayment waiver clause that the bracken's or excuse me the sexton's rely on as i mentioned this court in justice addressed a non waiver clause there is a and implication in the sexton's reply brief that the non waiver provision here was different than the non waiver provision addressed in justice that's not correct both of those non waiver provisions are identical in the justice court made clear those clauses address the ability of did a defendant's ability to accelerate in the future they do not address the abandonment of an acceleration in the past and once again the bracken case from the dallas court of appeals addressed an identical against abandonment that's not correct there's no case that has held that there is a case called page that says that an arm wave or provision creates a presumption against a waiver of the right to foreclose in the future and that is the context in which up until now the non waiver clauses have been litigated in these kinds of cases there have been arguments for parents in the past with actually waive the right to foreclose in the future this court has uniformly that if we rule this way that it allows the banks to be if you could come up here and make the opposite argument and tell us you did before some reason that you wanted to exhilaration to not to been abandoned in some other lawsuit for some particular reason because you could then arche well we have an end to waiver provision and and shield says you should be very strict on that and we have yes we did to do a lower amount in these in these in these notices we sent but we also said that the foreclosure was ongoing in these last in the bottom of these monthly statements and so they should have relied upon that they should have known that it was still ongoing i could just hear you being able to make the exact opposite argument based upon the same record and that's troubling at some length because it seems to give give one side i'm the kind of unilateral authority to say what the exact of the facts is i don't know that i would be able to make that argument your honor i think that each of those requests or demands for less than the full payment under this court's holding in notices a year later that are incorrect it's just kind of i'm going to have to speculate on that your honor but my understanding is that there may be regulatory requirements for lenders or services to send the police statements that's my understanding but ironically having correct information on them i get it was in foreclosure they say that the thing is in foreclosure and it's not well look at that from the other perspective though you're supposing the sexton's rel received one of those monthly statements and say well i just came into some money i'll pay this amount didn't cure this problem would it do you think a lender would be on solid ground to say well that was for informational purposes only we're not going to accept this and reinstate your life i don't think that would ever be supportable lenders want to be repaid the lovers that they made we don't want to foreclose on people we don't want to be owners of this real estate we lend money and we want to be paid back with the interest of the four years of great none of that is what we want if they want to reinstate the debt we're happy to have them do that that's the opposite and the policy that i think the sexton's advocate is the exact opposite policy that the borrowers ought to be the case in these circumstances it is in the borrowers interest to have liberal rules to allow lenders to try and negotiate and give them some kind of modification or other assistance to help them bring their debt current and the position that they're advocating on the non labor clause and this is made clear from them and those opinion  is just the opposite of if if lenders are not free to be able to negotiate with borrowers without the risk of waiving rights or without the risk of having their loans barred by limitations then the  incentive in that case is simply to go to foreclosure instead of trying to work things out mr freaky did start with a discussion and there is a statement in the district court's opinion to the effect that abandonment  wells versus bank of america in turn paraphrase from a decision called windows and i explain all this in the brief i think that what the man does a case and this is their twenty fifteen opinion abandonment of a prior excel aeration and waiver of a future acceleration are different issues in the wells decision the wells district court decision what the paraphrase was was abandonment of acceleration a waiver of acceleration or different  that paraphrase doesn't make the point very clearly but the underlying point is correct which is abandonment of something in the past is not the same issue as a waiver of the future and that's the point that this court made in the justice of pain and so i think the sexton's are trying to capitalize on both a poor paraphrase in the wells decision and the second thing that happened in wells is there are two mendoza i think that the court's decisions in boring and justice are dispositive of the two issues that the sexton's raise in this case and what your bank requests for or affirmed the district court judgment nor respect if you don't have any more questions know me answer a few things that came up here if you luther had in his heart in his letter that he wrote to the court last week that talking about warren and he said regarding the on page four seventy one they talked about the reason for the non waiver clause in the in the power of the nine waiver clause and it says this given t public policy favoring freedom of contract there can be no doubt that as a general proposition non waiver provisions are binding enforceable it doesn't say in the least context it doesn't say in the mortgage contest to context it says the supreme court of texas is saying the non waiver provisions are binding enforceable they're not irrelevant as m payments isn't it will the the mortgage company if they really do what what mr loose was saying and they don't want to foreclose i disagree with that you know out of context when when they see a large chunk of equity there think there are a lot harder to deal with than if it's there's not a large chunk of equity there all that would have to do is write a letter just like the legislature said in in  where they were trying to help the mortgage company just write a letter saying you abandon the previous acceleration it's only the day and then we're not even in this debate so but as i said that think they want to keep the pressure on the homeowners and yeah i mean that's a good point but you know my clients here i believe were wrongfully foreclosed upon and it comes from that acceleration on january twenty eighth two thousand and ten if you look at how i think the court pointed out things if you look at the this is on page two forty one of the record on peel this is the repayment plan dated seven thirty eight two thousand and ten and this is sound like that the the previous acceleration has been abandoned if a payment is not received by the but the plan due date the loan will be deemed to be material an immaterial default of the agreement and linton who is the service or at the time will have the right to proceed with and to proceed ahead with foreclosure there has to be an acceleration so at that point they haven't waited and then if you look at all of these different the other side to make lists all these different notices of payment in their summary judgment brief that go on and on and if you look at them let's just look at a couple it says just as a court pointed out our records indicate that you are in foreclosure so if you look at each one of them there is exists sentence like that in those notices so there's they have  and another thing there is a statement in the cases that i think address of this this is in the leonard case on page seventy six seventy seven martinez on page three citing con on three fifty three and holy cross versus wolf on five sixty six here's the statement when a note holder it abandons acceleration it restores the note to its original terms with its original maturity