IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-11206

HSBC BANK USA, N.A., as Trustee for Merrill Lynch Mortgage Loan AssetBacked Certificates Series 2005-WMCI, 

 Plaintiff - Appellee

v.

KENNETH E. CRUM, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Northern District of Texas

Before STEWART, Chief Judge, and WIENER and HIGGINSON, Circuit 

Judges.

WIENER, Circuit Judge:

Defendant-Appellant Kenneth E. Crum (“Defendant” or “Crum”) 

executed a home equity note creating a lien on his home. When Crum defaulted 

on the note, Plaintiff-Appellee HSBC Bank, USA, N.A. (“Plaintiff” or “HSBC”) 

sent Crum a notice of default and notice of acceleration, indicating that the 

loan would mature on June 10, 2009. During the next few years, Crum filed for 

Chapter 7 bankruptcy and filed an independent lawsuit seeking to prevent 

foreclosure. After these issues were resolved, HSBC filed this lawsuit in 2014, 

seeking to foreclose on the property. HSBC then filed a motion for summary 

United States Court of Appeals

Fifth Circuit

FILED

October 17, 2018

Lyle W. Cayce

Clerk

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judgment which the district court granted. Crum now appeals that decision. 

We affirm. 

I. FACTS AND PROCEEDINGS

In 2004, Crum executed a home equity note (the “Note”) and signed a 

Home Equity Security Instrument (the “Security Instrument”) that created a 

lien on his real property. HSBC, as Trustee for Merrill Lynch Mortgage Loan 

Asset-Backed Certificates Series 2005-WMCI, became the holder of the Note 

and the Security Interest in 2009. When Crum stopped making timely 

payments, HSBC’s mortgage servicer, Wilshire Credit Corporation, sent Crum 

a Notice of Default and Intent to Accelerate in May 2009, followed by a Notice 

of Acceleration of Loan Maturity on June 10, 2009.1 HSBC had four years, from 

that date, or until June 10, 2013, to foreclose.2 Meanwhile, on June 3, 2010, 

Crum had filed for Chapter 7 bankruptcy. The bankruptcy court granted him

a discharge on October 7, 2010. 

HSBC subsequently filed for foreclosure under Texas Rule of Civil 

Procedure 736. Crum then filed an independent lawsuit in state court on July 

4, 2011, seeking to prevent HSBC’s foreclosure. The defendants in that lawsuit 

were granted summary judgment on November 14, 2012.

The mortgage servicer at the time, Select Portfolio Services, sent Crum 

a Notice of Default on October 15, 2013, requesting less than the full amount 

owed to satisfy the debt, thereby effectively abandoning acceleration.3 Select 

Portfolio Services subsequently reaccelerated the loan in March 2014. Then, in 

 

1 There is another Notice of Acceleration of Loan Maturity in the record dated June 

11, 2009. Because both parties agree that the Notice of Acceleration was effective on June 10, 

2009, we evaluate the timeliness of HSBC’s claims based on that date. 

2 See TEX. CIV. PRAC. & REM. CODE § 16.035(a).

3 See Curry v. Ocwen Loan Servicing LLC, No. H-15-3089, 2016 WL 3920375, at *5 

(S.D. Tex. July 14, 2016) (“Under Texas law the parties can abandon acceleration by 

agreement or actions.”).

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April 2014, a new servicer, Nationstar Mortgage LLC (“Nationstar”), revoked 

that acceleration to “provide an opportunity to fully cure the default.” On May 

21, 2014, however, Nationstar sent a final Notice of Acceleration of Loan 

Maturity. 

HSBC filed the instant foreclosure suit on September 29, 2014, then filed 

a motion for summary judgment. The district court granted summary 

judgment to HSBC. Crum now appeals, contending that (1) HSBC was not the 

holder of the Note and therefore lacked standing to bring this claim; (2) HSBC’s 

lawsuit was untimely; and (3) the final judgment is invalid because it fails to 

comply with Texas Rule of Civil Procedure 309. 

II. LAW AND ANALYSIS

A. Standard of Review

We review the grant of summary judgment de novo and apply the same 

standard as the district court.4 Under Federal Rule of Civil Procedure 56,

summary judgment is proper “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.”5 If the moving party meets that burden, the non-moving party 

must show the existence of a genuine issue for trial,6 and the evidence and the 

inferences must be viewed in the light most favorable to the non-movant.7

Conclusional allegations, unsubstantiated assertions, or a mere “scintilla” of 

evidence are insufficient to defeat summary judgment.8

 

4 McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (citing Willis v. Coca 

Cola Enters., Inc., 445 F.3d 413, 416 (5th Cir. 2006)).

5 FED. R. CIV. P. 56(a). 

6 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986).

7 FDIC v. Dawson, 4 F.3d 1303, 1306 (5th Cir. 1993).

8 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).

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B. Holder of the Note, or the Security Instrument, or Both

The main factual dispute here is who owned the Note and Security 

Instrument at the time HSBC filed suit. According to HSBC, it has owned and 

held the Note since 2009. Crum contends, however, that Bank of America 

assigned the Note and Security Instrument to Nationstar in 2013, indicating 

that at some point prior to that date, HSBC had assigned the Note and Security 

Instrument to Bank of America. Crum further alleges that he contacted two 

HSBC representatives about the Note, and that they could not find a record 

that he had a mortgage with HSBC. HSBC responds that it did not assign the 

Note, but instead had delegated the servicing of the Loan Agreement to BAC 

Home Loans Servicing LP, a subsidiary of Bank of America N.A., on March 1, 

2010.

Crum contends that the district court erred in granting summary 

judgment to HSBC because HSBC had failed to demonstrate that it owned the 

Note and Security Interest. According to Crum, this means that HSBC did not 

have standing to bring the claim, so the district court lacked subject matter 

jurisdiction. 

Standing is a component of subject matter jurisdiction.9 “[T]he 

jurisdictional issue of standing is a legal question for which review is de 

novo.”10 Subject matter jurisdiction may be raised at any time, and may even 

be raised for the first time on appeal.11 Here, the district court determined that 

Crum did not present a genuine dispute of material fact as to whether HSBC 

owned the Note and Security Instrument and thus had standing to bring the 

claim. The district court held that the uncontroverted evidence demonstrated 

 

9 Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005).

10 Crane v. Johnson, 783 F.3d 244, 250–51 (5th Cir. 2015).

11 See Sample, 406 F.3d at 312. 

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that HSBC was the owner of the note at the time it filed its foreclosure lawsuit. 

Crum now challenges that element of the district court’s summary judgment 

decision.

Even if Crum may rely on the 2013 Assignment, he still has failed to 

raise a genuine factual dispute as to whether HSBC held or owned the Note at 

the time it filed the lawsuit. HSBC argues that Crum waived any arguments 

based on the 2013 Assignment, because he did not raise them in his response 

to HSBC’s motion for summary judgment, but submitted the 2013 Assignment 

for the first time in his motion to amend the judgment. HSBC contends that, 

because Federal Rule of Civil Procedure 59(e) specifies that a motion to amend 

judgment “cannot be used to raise arguments that could, and should, have been 

made before the judgment issued,” Crum is barred from relying on the 2013 

Assignment. HSBC also argues that, as Bank of America’s only interest in the 

loan was that of a mortgage servicer, that is the only interest that could have 

been transferred by the 2013 Assignment. 

HSBC submitted undisputed evidence that it was the holder and owner 

of the Note and Security Instrument from and after 2009. Crum’s affidavit 

detailing his phone calls to HSBC about his mortgage do not establish that 

HSBC was no longer the holder or owner of the Note. Neither does the 2013 

Assignment contradict the fact that HSBC remained the owner and holder of 

the Note. Bank of America and Nationstar are the only parties to that

agreement. HSBC admits that Bank of America was the servicer of the Note, 

but there is no evidence indicating that Bank of America ever owned or held 

the Note or Security Instrument. The 2013 Assignment is ambiguous 

regarding what interest Bank of America was transferring, so that argument

does not undermine HSBC’s evidence that it was the holder of the Note. 

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Furthermore, “Texas courts have explained on multiple occasions that a 

note and a deed of trust constitute separate actions.”12 Because those two types 

of agreements constitute separate actions, “Texas courts have ‘rejected the 

argument that a note and its security are inseparable by recognizing that the 

note and the deed-of-trust lien afford distinct remedies on separate 

obligations.’”13 Even if HSBC had not owned or had any interest in the Deed of 

Trust, this would not demonstrate that it no longer owned or held the Note, 

which constitutes an entirely separate instrument.14 Because Crum failed to 

present evidence raising an issue of material fact as to HSBC’s ownership of

the note, the district court properly granted summary judgment on this issue. 

C. Tolling of the Statute of Limitations

A suit to foreclose on real property must be brought within four years 

after the cause of action accrues.15 A cause of action for foreclosure normally 

accrues on the maturity date of the note.16 When a note or deed of trust secured 

by real property includes an optional acceleration clause, “the action 

accrues . . . when the holder actually exercises its option to accelerate.”17 The 

parties do not dispute that the Security Instrument includes an optional 

acceleration clause and that HSBC first accelerated the Note on June 10, 2009. 

Unless the limitations period was tolled, the statute of limitations would have 

expired on June 10, 2013. Thus, to reset the limitations period, HSBC would 

have had to abandon acceleration prior to that date. The parties agree that 

 

12 Wiley v. Deutsche Bank Nat’l Tr. Co., 539 F. App’x 533, 536 (5th Cir. 2013) 

(unpublished).

13 Id. (quoting Bierwirth v. BAC Home Loans Servicing, L.P., No. 03–11–00644–CV, 

2012 WL 3793190, at *3 (Tex. App.—Austin Aug. 30, 2012, no pet.)).

14 See id.at 536.

15 TEX. CIV. PRAC. & REM. CODE § 16.035.

16 Id. 17 Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001).

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HSBC abandoned the acceleration of the loan on October 15, 2013─27 days 

after the limitations period would have expired.

The district court held that HSBC’s suit was timely because the 

limitations period was tolled by two different lawsuits. First, the court held 

that the limitations period was tolled for 127 days when Crum filed for 

bankruptcy in June 2010. Second, it determined that the limitations period 

was tolled for 500 days under Texas Rule of Civil Procedure 736 when Crum 

filed an independent lawsuit to prevent foreclosure. Crum concedes that his 

bankruptcy suit tolled the statute of limitations, but contends that it did so for 

only 126 days, making HSBC’s foreclosure suit untimely.

a. 11 U.S.C. § 108. Extension of time 

11 U.S.C. § 108(c) outlines the effect of a bankruptcy stay on statutes of 

limitations. It states:

Except as provided in section 524 of this title, if applicable 

nonbankruptcy law, an order entered in a nonbankruptcy 

proceeding, or an agreement fixes a period for commencing or 

continuing a civil action in a court other than a bankruptcy court 

on a claim against the debtor, or against an individual with respect 

to which such individual is protected under section 1201 or 1301 of 

this title, and such period has not expired before the date of the

filing of the petition, then such period does not expire until the 

later of—

(1) the end of such period, including any suspension of such period

occurring on or after the commencement of the case; or

(2) 30 days after notice of the termination or expiration of the stay 

under section 362, 922, 1201, or 1301 of this title, as the case may 

be, with respect to such claim.18

 

18 11 U.S.C. § 108(c) (emphasis added).

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The parties agree that, in the Fifth Circuit, this statute “does not create a 

separate tolling provision,” but rather “states that for the time period to be 

suspended, other federal or state law must mandate it and then be 

incorporated through [the statute].”19 Thus, the first question is whether there 

is a federal or state tolling provision that suspends the foreclosure statute of 

limitations while a bankruptcy stay is in effect. 

The Texas Supreme Court has not ruled on this issue and Texas 

appellate courts are split on whether a bankruptcy stay tolls deadlines for 

Texas causes of action.20 The parties agree that Texas state law does not have 

a tolling provision that specifically provides for tolling during an automatic 

bankruptcy stay. They further agree, however, with the line of Texas cases that 

accepts the common law tolling principle as an applicable nonbankruptcy law 

state law tolling provision that may be incorporated through 11 U.S.C. § 

108(c).21

b. Texas common law tolling principle and other methods of 

computing time 

Although the parties agree that the Texas common law tolling principle 

may be incorporated through 11 U.S.C. § 108(c) to provide for tolling during 

the pendency of a bankruptcy stay, they disagree about how to calculate this 

tolling period. Crum insists that one of several rules should be applied, each 

of which results in a 126-day tolling period. He first cites Federal Rule of 

 

19 Rogers v. Corrosion Prods., Inc., 42 F.3d 292, 297 (5th Cir. 1995). 

20 Compare Gantt v. Gantt, 208 S.W.3d 27, 30–31 (Tex. App.—Houston 2006, pet. 

denied) (“By its express terms, section 108(c) tolls no time limits, but provides only for some 

deadlines to be extended for 30 days after notice of the termination of a bankruptcy stay. 

Beyond this, a time period may be further suspended only if mandated by other federal or 

state law incorporated through section 108(c).” (internal citations omitted)), with Peterson v. 

Tex. Commerce Bank-Austin, Nat’l Ass’n, 844 S.W.2d 291, 294 (Tex. App.—Austin 1992, no 

pet.) (“[T]he Bankruptcy Code’s automatic-stay provision interrupts the running of applicable 

limitations periods.”). 

21 See, e.g., Peterson, 844 S.W.2d at 294. 

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Bankruptcy Procedure 9006(a)(1) which reads, “[w]hen the period is stated in 

days or a longer unit of time[,] . . . exclude the day of the event that triggers 

the period; . . . and . . . include the last day of the period[.]” Crum then cites 

Federal Rule of Civil Procedure 6(a)(1) for the same calculation method. Both 

of these methods apply when “computing any time period specified in these 

rules, in any local rule or court order, or in any statute that does not specify a 

method of computing time.”22 But these rules are not themselves tolling 

provisions; rather, they are methods for computing periods of time. 

Crum next cites the Texas Code Construction Act, also a method of 

computing time, which states, “[i]n computing a period of days, the first day 

is excluded and the last day is included.”23 Finally, Crum suggests that the 

tolling period might be the precise amount of time, down to the minute, of the 

bankruptcy stay.

HSBC counters that application of the Texas common law principle 

itself provides a 127-day tolling period. The well-settled Texas common law 

principle suspends the statute of limitations when a party cannot pursue its 

legal remedy.24 “[W]here ‘a person is prevented from exercising his legal 

remedy by the pendency of legal proceedings, the time during which he is thus 

prevented should not be counted against him in determining whether 

limitations have barred his right.’”25 In Cade v. Stone, after considering 11 

U.S.C. § 108, a Texas Court of Appeals held that, “[a]pplicable nonbankruptcy 

law [i.e., Texas common law] . . . provides that [the applicable statute of 

limitations] w[as] suspended during the time that Cade was prohibited from 

 

22 FED. R. CIV. P. 6(a) (emphasis added); FED. R. BANKR. P. 9006(a) (emphasis added). 

23 TEX. GOV’T CODE ANN. § 311.014(a) (West 2017). 

24 Cade v. Stone, No. 13-12-00630-CV, 2013 WL 3009853, at *5 (Tex. App.—Corpus 

Christi June 13 2013, no pet.). 

25 Id. (quoting Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex. 1991)). 

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executing on the judgment due to the automatic bankruptcy stay.”26

HSBC also cites Fifth Circuit cases that reviewed tolling periods as 

applied to the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and 

the Speedy Trial Act. This court has held that, for both acts, the tolling period 

includes the entire time that a petition or motion is pending.27 This court held 

that, for the purpose of AEDPA, the term “pending,” when used to calculate 

the tolling period, refers to “the day [the petition] is filed through (and 

including) the day it is resolved.”28 And, for purposes of the Speedy Trial Act, 

this court held that the Speedy Trial clock is tolled for the entire time that 

pretrial motions are pending, including the date filed and date resolved.29

c. Application of the Texas common law principle results in a 127-

day tolling period

As discussed above, 11 U.S.C. § 108 incorporates state law tolling 

provisions. The Texas common law tolling principle is an applicable 

nonbankruptcy law that may be incorporated to toll the foreclosure statute 

of limitations. That common law principle states that “[w]here ‘a person is 

prevented from exercising his legal remedy by the pendency of legal 

proceedings, the time during which he is thus prevented should not be 

counted against him in determining whether limitations have barred his 

right.’”30 The methods for computing time periods suggested by Crum are 

only used when the rule or the law itself does not provide a method for 

computing time. Here, the Texas common law principle provides a method 

 

26 Id. (internal quotation marks omitted). 

27 Windland v. Quarterman, 578 F.3d 314, 316 (5th Cir. 2009) (citing 28 U.S.C. § 

2244(d)(2)); United States v. Calle, 120 F.3d 43, 45–47 (5th Cir. 1997). 

28 Windland, 578 F.3d at 317. 

29 Calle, 120 F.3d at 46. 

30 Hughes, 821 S.W.2d at 157 (quoting Walker v. Hanes, 570 S.W.2d 534, 540 (Tex. 

App.—Corpus Christi 1978, writ ref’d n.r.e.)). 

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for computing time. The method is strongly implied by the principle itself, 

which does not allow a statute of limitations to run against parties during 

the time that they are not able to exercise their remedy. Thus, the method 

applied by courts has been to toll each day that a party was unable to 

exercise its remedy.31 In the context of a bankruptcy stay, this means that 

the limitations period is tolled every day that the stay is in place—including 

the day the stay is implemented and the day it is lifted—because the party 

is “prevented from exercising [its] legal remedy” on both of those days.32

As for Crum’s contention that this court should limit the tolling period 

based on the exact amount of time that the stay was in place, the cases he 

cites in support of this proposition do not implement tolling periods that 

precise.33 Even when courts speak with some precision regarding the length 

of a bankruptcy stay, they do not shave the tolling period down to hours or 

minutes. For example, in Misczak v. Deutsche Bank National Trust 

Company, after acknowledging a party’s argument that “the stay remains in 

place until the moment the case is dismissed,” the court held that the proper 

tolling period following the automatic bankruptcy stay was an even 437 

days.34 

Application of the Texas common law principle requires that the 

statute of limitations be tolled for a period that includes each day during 

which HSBC was prevented from foreclosing on the property by the 

automatic bankruptcy stay. As applied by both federal and state courts in 

 

31 Peterson, 844 S.W.2d at 292, 295; Cade, 2013 WL 3009853, at *2, 6.

32 Peterson, 844 S.W.2d at 292, 295; Cade, 2013 WL 3009853, at *2, 6. 33 See Peterson, 844 S.W.2d at 292, 295; Cade, 2013 WL 3009853, at *2, 6.

34 No. 4:15-cv-381-O, 2016 WL 3647658, at *4 (N.D. Tex. Feb. 12, 2016) (emphasis 

added). In this case, the parties were arguing not about whether the first day is included in 

the tolling period but whether the last day is included in the tolling period. The court 

assumed, without explanation, “that the automatic stay provisions of the bankruptcy code 

tolls the limitations period beginning on the date a bankruptcy is filed.” Id.

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Texas, this period includes the day the stay was implemented and the day 

the stay was lifted, here for a total of 127 days. This result aligns with the 

common law principle because it does not allow the statute of limitations to 

run against HSBC during any day that it was not legally able to exercise its 

remedy. The district court properly held that HSBC timely filed its 

foreclosure suit. 

D. Signing and Entering Final Judgment

Crum’s final argument is that the district court erred when it signed and 

entered a final judgment that authorized a foreclosure sale of the Property, 

without complying with Texas Rule of Civil Procedure 309. HSBC responds 

that even if the judgment was improper, Crum has waived this argument by 

failing to raise it in the district court. 

Not only did Crum fail to raise this issue in the district court;35 he even

failed to mention Texas Rule of Civil Procedure 309 in his motion to alter final 

judgment. “An argument not raised before the district court cannot be asserted 

for the first time on appeal.”36 “To preserve an argument, it ‘must be raised to 

such a degree that the trial court may rule on it.’”37 As Crum failed to raise 

this argument in the district court, he has waived it.38

III. CONCLUSION

The district court correctly concluded that HSBC was the holder of the 

Note at the time it filed its lawsuit and that HSBC’s foreclosure suit was timely 

 

35 Crum does not mention Rule 309 in his Complaint, his responses to the defendant’s 

motion to dismiss, his responses to the motion for summary judgment, or his own motion to 

dismiss for lack of subject matter jurisdiction. 

36 XL Specialty Ins. Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d 146, 153 (5th Cir. 

2008).

37 Id. (quoting In re Fairchild Aircraft Corp., 6 F.3d 1119, 1128 (5th Cir. 1993)).

38 See id.

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because Crum’s bankruptcy suit tolled the statute of limitations for 127 days. 

The district court’s judgment in favor of HSBC is

AFFIRMED. 

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