Affirmed and Opinion Filed March 22, 2023 

# S

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-21-00306-CV TYVON C. SMITH AND TAMARA J. SMITH, Appellants V. YELLOWFIN LOAN SERVICING CORP., AS SUCCESSOR IN INTEREST TO HOMETRUST MORTGAGE COMPANY, Appellee On Appeal from the County Civil Court at Law No 2 Harris County, Texas Trial Court Cause No. 1156795 MEMORANDUM OPINION Before Justices Pedersen, III, Carlyle, and Garcia Opinion by Justice Pedersen, III In this lawsuit to enforce a promisso ry note, appellants Tyvon C. Smith and Tamara J. Smith complain th e trial court erred in gran ting appellee Yellowfin Loan Servicing Corporation’s traditional motion for summary judgment. 1 They argue appellee lacks standing, the note is not negotiable, the action is time-barred,

1 This appeal originally was filed in the First Dist rict Court of Appeals in Houston and was docketed as cause number 01-21-00194-CV. The appeal was transferred to this Court pursuant to a docketequalization order issued by the Supreme Court of Texas. See T EX

. G OV ’ T C ODE A NN

. § 73.001. Because this is a transferred case, we apply precedent of the Fi rst Court of Appeals to the extent it differs from our own. See T EX

. R. A PP

. P. 41.3; Vo v. Harris Cty. Comm’rs Court , No. 05-21-00307-CV, 2022 WL 4376714, at *1 n.1 (Tex. App.—Dallas Sept. 22, 2022, pet. denied) (mem. op.).–2– appellee waived relief by waiting too long to judicially enforce the note, appellee failed to prove the amount owed, and th e trial court failed to apply summary judgment standards and cont rolling law. We affirm th e trial court’s judgment. Background Appellants purchased their home on N ovember 28, 2005. They financed the purchase through Hometrust Bank, F.S.B., with two loans, wh ich appellants call the “first loan” and the “note.” The first loan was in the amount of $109,850.00. The note was in the amount of $29,325.00 plus interest and is captioned “purchase money note (fixed rate–second lien).” The fi rst loan and the note were secured by their own deeds of trust. Appellants became delinque nt in payment on both notes, and the first loan was foreclosed on February 5, 2008. The sale price at foreclosure was $120,739.36. That amount was insufficient to pay off the first loan and the note. The note was transferred to various enti ties through a series of transactions. Neither Hometrust nor its successors—un til appellee—sued to enforce the note. Appellee initially contacted appellants in a January 14, 2020 letter. The letter stated, “the amount of the debt as of 08/29/2019 is $25,738.81.” On February 26, 2020, appellee sent appe llants notice of appellee’s inte nt to accelerate payment of the note. The notice stated, in part: Yellowfin Loan Servicing Corpor ation has agreed to waive and forgive the monthly installment payments through 6/1/2019. Yellowfin Loan Servicing is not s eeking to collect any waived or–3– forgiven payments, and the Mortgagor (s) is no longer obligated to pay those waived or forgiven payments . Yellowfin Loan Servicing is only seeking to recover payments due on and after 7/1/2019. No amounts sought to be recovered are outside of the applicable statute of limitations. The new post waiver princi pal balance, as of 7/1/2019, is $24,909.60. On March 25, 2020, appell ee sent appellants a letter providing notice of acceleration. In it, appellee stated, “not hing less than the payment in full of the entire accelerated principal balance will be accepted.” The record does not suggest the note was previously accelerated. Appellee filed its original petition in this lawsuit on July 13, 2020. Appellants filed a plea to the jurisdictio n, original answer, and counterclaim on August 10, 2020. The counterclaim alleged vi olation of the Texa s Debt Collection Practices Act. See T EX
. F IN
. C ODE A NN
. § 392.001 et seq . Appellants sought actual and exemplary damages. Appellee filed its original answer to appellants’ counterclaim on September 1, 2020. A ppellee moved for traditional summary judgment on its claim and on appellants’ c ounterclaims and statute-of-limitations defense on October 30, 2020. Appellants responded to the motion for summary judgment on November 17, 2020. The tria l court entered summary judgment in favor of appellee on January 18, 2021. Th e summary judgment awarded appellee $24,909.60 as the accelerated principa l amount due under the note; $2,890.00 for attorney’s fees; costs; and post-judgmen t interest. The judgment recited, “This judgment disposes of all claims and all parties, is a final judgment, and is–4– appealable. All relief not expressly granted in this judgment is denied.” Appellants filed a motion for new trial and a second pl ea to the jurisdiction on February 15, 2021. The record does not contain orders on appellants’ motion for new trial or second plea to the jurisdictio n. Appellants filed their no tice of appeal on April 16, 2021. The notice of appeal recited that appellants appeal the January 18, 2021 judgment. Issues Presented Appellants present eight issues for re view, which we restate verbatim. We address overlapping issues together.
1. Does any court have jurisdiction to hear Yellowfin’s claim where Yellowfin could not prove it was the ow ner of the non-negotiable instrument it wanted to enforce?
2. Was the summary judgment below void because it failed to meet the standards in T EX
. R. C IV
. P. 166a and failed to follow relevant precedent?
3. Was there just a single transaction between Hometrust Mortgage Company as the lender and the Smiths as the borrower when both simultaneous loans between the parties were contractually included in the one Loan Agreement that was us ed to finance just one house?
4. Is the two-year limitations period in T EX
. P ROP
. C ODE § 51.003 applicable to the Note when there was only one lender who financed the purchase of the property and the foreclosure of th e First Loan by the lender voided the lender’s lien for the Note?
5. Is the four-year limitations period for debt in T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 16.004 applicable to the Note when the lender’s cause of action contractually arose no later than the date of foreclosure of the First Loan in 2008?–5– 6. Is a right that the lender gave itself to sue on the debt in a second loan for a default on another loan waived if it is not exercised for twelve years after the original lender contractually caused it to accrue when it foreclosed on the first loan?
7. Is the Note still an obligation “secur ed by a real propert y lien” when it was acquired by a debt buyer eleven year s after the lien against the property was voided by foreclosure?
8. Where there are no servicing records for a 2005 loan can a 2019 guess by a stranger to the loan of the amount that might be owed by the borrower when that stranger has no servicing records of the lo an, meet summary judgments standard in T EX
. R. C IV
. P. 166a? Standard of Review We review a trial court’s gran ting of summary judgment de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex , 253 S.W.3d 184, 192 (Tex. 2007). We review the evidence presented in the light most favorable to the nonmoving party. See Mann Frankford Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). The moving part y bears the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law.
T EX
. R. C IV
. P. 166a(c); Lujan v. Navistar, Inc. , 555 S.W.3d 79, 84 (Tex. 2018). When a plaintiff moves for summary judgme nt on its own claim, it must prove that is entitled to judgment as a matter of law on each element of its cause of action. See Castillo Info. Tech. Serv s., LLC v. Dyonyx, L.P., 554 S.W.3d 41, 45 (Tex. App.—Houston [1st Dist .] 2017, no pet.). In a traditional summary judgment, the burden of proof does not shift and the non-movant has no burden to re spond unless and until the movant has–6– conclusively established entitlement to summary judgment on the movant’s cause of action or affirmative de fense as a matter of law. See Rodriguez v. Ginsburg , No. 05-17-01266-CV, 2019 WL 4010770, at *3 (T ex. App.—Dallas A ug. 26, 2019, no pet.) (mem. op.) (citing Rhone-Poulenc, Inc. v. Steel , 997 S.W.2d 217, 222-23 (Tex. 1999); Casso v. Brand , 776 S.W.2d 551, 556 (Tex . 1989)). However, oncethe movant proves a right to summary judgment, the burden shifts to the nonmovant to raise a genuine issue of mate rial fact sufficient to defeat summary judgment. See id. (citing M. D. Anderson Hosp. & Tumor Inst. v. Willrich , 28 S.W.3d, 22, 23 (Tex. 2000)). Further, if the non-movant opposes the summary judgment by relying on an affirmative defe nse or counter-affirmative defense, the non-movant must produce summary judgment ev idence sufficient to raise an issue of fact on each element of that af firmative defense to avoid summary judgment. See id. (citing Baptist Mem’l Hosp. Sys. v. Sampson , 969 S.W.2d 945, 947 (Tex. 1998)). Analysis A. Standing to Enforce th e Note and Negotiability In their first issue, appellants argue appellee lacked standing because the note was not a negotiable instrument a nd appellee had no right to enforce it. Because standing implicates a court’s subject matter jurisdiction, we address this issue first. See Tex. Ass’n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 443 (Tex. 1993); In re C.J. , No. 05-18-01244-CV, 2019 WL 7207171, at *1 (Tex.–7– App.—Dallas Dec. 27, 2019, no pet.) (mem. op.). “T he negotiability of an instrument is a question of law.” Guniganti v. Kalvakuntla, 346 S.W.3d 242, 248 (Tex. App.—Houston [14th Dist.] 2011, no pet.). We first address whether the note is a negotiable instrument. “In Texas, negotiable instruments are governed by the Uniform Commercial Code (UCC), as adopted by the Texas Legislature and codified in the Texas Business and Commerce Code.” See Amberboy v. Socie te de Banque Privee , 831 S.W.2d 793, 793 (Tex. 1992). “Negotiable instrument ” generally means an “unconditional promise or order to pay a fi xed amount of money, with or without interest or other charges described in the promise or order, ” so long as the promise or order “does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money[.]” T EX
. B US
. & C OM
. C ODE A NN
. § 3.104(a); see Thompson v. Yellowfin Loan Servicing Corp. , No. 01- 21-00147-CV, 2023 WL 17492, at *3 (Tex. App.—Houston [1st Dist.] Jan. 3, 2023, no pet. h.) (mem. op.). A promise or order is unconditional unless it states an express condition to payment, that the prom ise or order is subject to or governed by another record, or that rights or obligati ons with respect to the promise or order are stated in another record. See T EX
. B US
. & C OM
. C ODE A NN
. § 3.106(a); Thompson , 2023 WL 17492, at *3. Comment 1 to section 3.106 explains, in part, For example, a promissory note is not an instrument defined by Section 3-104 if it contains any of the following statements: 1. “This note is subject to a contract of sale . . . .” 2. “This note is subject to a–8– loan and security agreement . . . .” 3. “Rights and obligations of the parties with respect to this note are stated in an agreement . . . between the payee and maker of this note.”
T EX
. B US
. & C OM
. C ODE A NN
. § 3.106 cmt. 1. A referenc e to another record does not of itself make the promise or order conditional. Id. § 3.106(a). Appellants do not dispute that the note is a promise to pay. They argue the note is conditional and non-negotiable under s ection 3.106 because it states that it contains a promise “subject to or governed by another record.” See id. § 3.106(a)(ii). They also argue the note states that “rights or obligations with respect to the promise or order are stated in another record.” See id. § 3.106(a)(iii). In support of their argument, appellant s rely on the following language in the
note: I will be in default if:

. . . I break any promise I made in the Loan Agreement;

. . . you believe in good faith that I am not going to keep any of my promises. Appellants cite to Great Northern Energy, Inc. v. Circle Ridge Production,
Inc. , 528 S.W.3d 644 (Tex. App.—Texarkana 2017, pet. denied). The note in Great Northern stated that several other documents “are incorporated herein by this reference for all purposes as if fully set forth at length herein.” Id. at 661. The note also provided it was “subject to the te rms of” the separate deed of trust and security agreement. Id. Our sister court concluded: “B ecause the promissory note–9– contains statements such as the ones sp ecified under Comment 1 to Section 3.106, the promissory note is not a negotia ble instrument under Section 3.104.” Id. Another sister court considered a note th at stated, “[a]ll of the terms of the Loan Agreement and the Indenture are inco rporated into this Note by reference, with the same effect as if they were reprinted here in full.” FFP Mktg. Co. v. Long
Lane Master Trust IV , 169 S.W.3d 402, 409 (Tex. App.—Fort Worth 2005, no pet.). Because the note was governed by th e terms of another writing, requiring one to look outside the note to determine if payment was conditional or if the terms of that document altered the rights with resp ect to payment, the court concluded the note was not a negotiable instrument. See id. ; Gunigani v. Kalvakuntla , 346 S.W.3d 242, 249 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (language in note stating that “[a]dditional advances w ill be made in accordance with the terms and conditions of the Loan Agreement, refe rence to the same be ing here made for all purposes” burdened the note with the conditions of the other document and rendered the note non-negotiable); Mitchell v. Riverside Nat’l Bank , 613 S.W.2d 802, 803 (Tex. App.—Houston [14th Dist.] 1981, writ ref’d n.r. e.) (language in note that it “is subject to and governed by said contract, which is hereby expressly referred to, incorporated here in and made a part hereof” destroyed the negotiability of the instrument and rendered the inst rument burdened by th e terms within the extrinsic contract).–10– The note here does not cont ain language comparable to that of the notes in Great Northern , FFP Marketing Company , or Gunigani . The notes there expressly incorporated terms of other documents or expressly burdened a note with extrinsic
terms. See Cont’l Nat’l Bank of Fort Worth v. Conner , 214 S.W.2d 928, 931 (Tex. 1948) (indicating that an otherwise negotiable instrument can be rendered nonnegotiable if it is burdened with the cond itions of another agreement). Nor does the note contain language comparable to that in comment 1 of section 3.106 that renders an instrument non-negotiable. See T EX
. B US
. & C OM
. C ODE A NN
. § 3.106
cmt. 1. We find additional guidance in an opinion of the Fourteenth Court of Appeals , Santos v. Yellowfin Loan Servicing Corp. , No. 14-21-00151-CV, 2022 WL 2678846 (Tex. App.—Houston [14th Dist.] July 12, 2022, pet. filed) (mem. op.). There, the debtor argued, in part , that a note was non-negotiable because it provided the debtor would be in default if she failed to keep a ny of her agreements “under this Note or under any other agreem ent with [the lender]. ” Id. at *3 (emphasis in original). Santos did not hold the note to be non-negotiable due to that term, which is similar to the terms appellants rely on here. See id . at *3. The Santos
court noted, “A mere ‘reference to another record does not of itself make the promise or order conditional.’” Id. (citing section 3.106 of the Texas Business and–11– Commerce Code). 2 We conclude the note is a negotiable instrument. See id. §§ 3.104(a), 3.106(a); cf. Santos , 2022 WL 278846, at *3. We next determine whether appellee is a holder or owner of the note. See Leavings v. Mills , 175 S.W.3d 301, 309 (Tex. App.—H ouston [1st Dist.] 2004, no pet.) (“to prevail on a summary judgment motion, a party seeking to enforce a note must prove that (1) a certain note is in question, (2) the party sued signed the note, (3) the plaintiff is the owner or holder of the note, and (4) a certain balance is due and owing on the note.”). A holder of an instrument is a “[p]erson entitled to enforce” an instrument. Id. “A person can become the holder of an instrument when the instrument is issued to that person; or he can become a holder by negotiation.” Id. (citing comment 1, section 3. 201 of the Texas Business and Commerce Code). Negotiation is the “transfer of possessi on of an instrument . . . by a person other than the issuer to a person who thereby becomes its holder.” T EX
. B US
. & C OM
. C ODE A NN . § 3.201(a); Leavings , 175 S.W.3d at 309. “[I]f an instrument is payable to an identified person, negotiation re quires transfer of possession of the instrument and its indorsement by the holder.” T EX
. B US
. & C OM
.

2 The note in Santos also contained section 15, which provided: “You have read and agree to all provisions of this Note including those on pages 1 through 3 and in the Disclosure statement which are incorporated herein by reference . . . . See pages 1, 2, and 3 and the Disclosure statement of even date provided to you, the terms of which are in corporated by reference in this Note. ” Santos , 2022 WL 2678846, at *3 (emphasis in original). The Santos court held section 15’s language expressly stating that it incorporated terms of the disclosure statement into the note rendered the note non-negotiable. See id

. Santos concluded the note was non-negotiable based solely on section 15 of the note. See id. at *4 (“Because the Note expressly incorporates the terms of the Disclosure Statement, the Note is burdened by those terms and rendered non-negotiable.”). The note in the case at bar, in contrast, does not expressly incorporate terms of another document.–12– C ODE A NN
. § 3.201(b); Leavings , 175 S.W.3d at 309. “The indorsement must be written by or on behalf of the holder and on the instrument or on a paper so firmly affixed to it as to become part of it.” Leavings , 175 S.W.3d at 309. “If an instrument not in the possession of the original holder lacks a written indorsement and proof of the chain of title, the person in possession does not have the status of a holder.” Id. Matt Miller, appellee’s custodian of r ecords, testified by affidavit that appellee acquired the note in August 2019 as a part of a pool of mortgages sold by RCS Recovery Services, LLC, and that appellee lawfully held the note, to which a series of putative indorsements and allonges were affixed. 3 The note was originally payable to Hometrust. It executed an a llonge making the note payable to Lehman Brothers Bank, FSB. Lehman Brothers Ba nk, FSB indorsed the allonge making the note payable to the order of Lehman Brot hers Holdings, Inc. Lehman Brothers Holdings, Inc. then made an indorsement on the all onge making the note payable to the order of Nationstar Mortgage, LLC. A second allonge to the note made the note payable to the order of RCS Recovery Service, LLC and indicated that Seth Miller, as an authorized signer, signe d the allonge for RCS who was acting as

3 An indorsement is “[t]he act of a payee, drawee, accommodation indorser, or holder of a bill, note, check, or other negotiable instrument, in writing his name upon the back of the same, with or without further or qualifying words, whereby the property in the same is assigned and transferred to another.” Indorsement , Black’s Law Dictionary (6th ed. 1990). An allonge is “[a] piece of paper annexed to a negotiable instrument or promissory note, on which to write endorsements for which there is no room on the instrument itself.” Allonge , Black’s Law Dictionary (6th ed. 1990).–13– attorney in fact for Nationstar. RCS executed a third allonge making the note payable to the order of a ppellee. Appellee produced evidence that it had possession of the original note and all allonges. Summary judgment evidence included a “mortgage note purchase and sale agreemen t.” It provided RCS Recovery Services, LLC sold mortgage notes to appellee. An exhibit to the agreement reflects that appellee purchased the note. We conclude the indorse ments and allonges on the note, as well as the purchase and sale agreement between RCS and appellee constitute more than a scintilla of evidence of the transf er of the possession of the note from the original owner, Hometrus t, to the ultimate owner, appellee. See Thompson v. Yellowfin Loan Servicing Corp. , No. 01-21-00147-CV, 2023 WL 17492, at *4 (Tex. App.—Houston [1st Dist.] Jan. 3, 2023, no pet. h.) (mem. op.) (concluding on similar facts that Yellowfin met its burden to establish that it was the owner or holder of a note). Appe llants failed to introduce evidence demonstrating that a predecessor-in-inter est to appellee exercised its right to optional acceleration at the time of for eclosure or at any other time prior to appellee’s acceleration of the note. Appellee met its summary judgment burd en to establish that it was the owner or holder of the note. As in Thompson —decided by the First Court of Appeals, whose indistinguishable precedent 4 we must follow in this transferred

4 In a June 21, 2021 letter to this Court, appella nts’ counsel stated: “The undersigned has three nearly identical appeals currently pending against Yellowfin in th ree different courts. This one was transferred–14– appeal—appellants did not of fer controverting evidence that would raise a fact issue on appellee’s status as holder of the note. See id. at *4 (holding Yellowfin was the holder of a negotiable instrument). We overrule appellants’ first issue contending that the note was not a negotiable instrument and th at appellee had no standing or right to enforce it. B. Statute of Limitations In their third, fourth, fifth, and se venth issues, appellants argue appellee’s claim was time-barred. As with the parties in Thompson and Santos , appellants and appellee disagree on when appellee’s claim accrued and which statute of limitations applies to appellee’s claim. See Thompson, 2023 WL 17492, at *5; Santos, 2022 WL 2678846, at *5. Appellee argues its claim did not accrue until it accelerated payment on the note and that the six-year limitations period applicable to an action to enforce a note found in the Texas UCC applies. See T EX
. B US
. & C OM
. C ODE A NN
. § 3.118 (providing statute of limitations to sue on “note” is six years). Appellants argue appellee’s claim accrued when the first loan was foreclosed. They argue that either the two-year limitations period for deficiency claims applies, see T EX
. P ROP
. C ODE A NN
. § 51.003(a) (if the sale price at which real property is sold at a foreclosure is less than the unpaid bala nce of indebtedness

from the First Court. The same counsel represents Ye llowfin in all three cases.” (Emphasis added.) The letter explained counsel mistakenly filed the Thompson appellate brief in this Court.–15– secured by the real property, any action to recover the deficiency must be brought within two years of foreclosure sale), or , alternatively, the four-year limitations period for a claim for a debt applies. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 16.004(a)(3) (suit for cause of action for de bt must be brought within four years.). The First Court of Appeals has rej ected appellants’ contention that appellee’s cause of action accrued wh en the property was foreclosed. See Thompson , 2023 WL 17492, at *6. The court reasoned, The senior lienholder, which at the time of foreclosure was Deutsche Bank, foreclosed on the First Loan—Y ellowfin (or its predecessor-ininterest) did not. Although the pr oceeds from the 2007 foreclosure sale did not satisfy the debt owed under the Note, there was no foreclosure by Yellowfin. That I ndyMac was the original lender for both the First Loan and the Second Loan does not change the outcome—they were separate transa ctions that created separate obligations. Thompson’s obligati on to pay on the Note was not eliminated by the foreclosure of th e First Loan and extinguishment of the junior lien securing the Note. See Poston v. Wachovia Mortg. Corp. , No. 14-11-00485-CV, 2012 WL 1606340, at *2 (Tex. App.— Houston [14th Dist.] May 8, 2012, pet. denied) (mem. op.) (“Therefore, when a junior lien is extinguished by foreclosure on a superior lien, the unpaid portion of the loan that was secured by the junior lien merely becomes an uns ecured debt for which the lender may obtain a money judgment. Cons equently, Wachovia’s right to obtain a money judgment based on the Poston’s failure to repay the second note was not eliminated by the foreclosure of the superior lien and extinguishment of the junior lien securing payment of the second note.”). Id. at *6. (citing Mandarino v. Sherwood Lane Invs., LLC , No 01-15-00192-CV, 2016 WL 4034568, at *7-8 (Tex. App.—Houston [1st Dist.] July 26, 2016, no pet.) (mem. op.) (“Because we concluded that the junior lienholder was not seeking a–16– deficiency judgment when it sued on its pr omissory note, it was not subject to the statute of limitations for deficiency judgments.”)); see also Holy Cross Church of God in Christ v. Wolf , 44 S.W.3d 562, 566 (Tex. 2001) (if a promissory note contains an optional acceleration clause, li mitations does not automatically start to run upon default; an action accrues “only when the holder actually exercises its option to accelerate” the entire note). The Thompson court concluded: “Therefore, as the Fourteenth Court of Appeals held in Santos , we hold that Yellowfin is not seeking a deficiency judgment from the 2007 foreclosure sale and Section 51.003 does not apply to Yellowfin’s suit.” Thompson , 2023 WL 17492, at *6. We conclude appellee is not seeki ng a deficiency judgment from the 2008 foreclosure sale, and section 51.003 does not apply to appellee’s suit. See id. at *6. We also determine, for reasons stated below, that the four-year statute of limitations of section 16.00 4(a)(3) is inapplicable. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 16.004(a)(3) (providing limitati ons period for suit on a debt). The court in Thompson held that because the note was a negotiable instrument, section 3.118 of the Texas Bu siness and Commerce Code provided the appropriate statute of limitations. See Thompson , 2023 WL 17492, at *6 (citing Mandarino , 2016 WL 4034568, at *8 (applying sec tion 3.118 to action to enforce promissory note); Aguero v. Ramirez , 70 S.W.3d 372, 374 (Tex. App.—Corpus Christi-Edinburg 2002, pet. denied) (“[w]here there is a debt secured by a note, which is, in turn, secured by a lien, the note and lien constitute separate–17– obligations,” and therefore, because plai ntiff sued to enforce on payment only on promissory note—and did not sue to enforce lie n, deed of trust, or foreclose on real property—six-year statute of limitations in section 3.118 of the Texas Business and Commerce Code applied)); see also T EX
. B US
. & C OM
. C ODE A NN
. § 3.118(a) (“[A]n action to enforce the obligation of a party to pay a note pa yable at a definite time must be commenced within six years af ter the due date or dates stated in the note, or, if a due date is accelerated, within six year s after the accelerated due date.”). We have determined the note is a ne gotiable instrument, and so we apply section 3.118(a)’s six-year statute of limitations here. See id. The note provides it matures with final payment on December 1, 2035. Appellee accelerated payment of the note on March 25, 2020. Consequently , section 3.118(a) re quired appellee to timely file this lawsuit within six years of March 25, 2020. See id. ; Thompson , 2023 WL 17492, at *6. Appellee filed its original petition in this action on July 13,
2020. We reject appellants’ argument, raised in their seventh issue, that there was only one transaction between Hometrust and appellants with the result that appellee’s cause of action accrued when appe llee sent “the default letter sent prior to the acceleration.” They argue the deed of trust for the note contained a provision that “made a payment default on the Firs t Loan an enforceable default on the Note.” They assert the note “contractually added another way for the Note to be–18– called due in its entirety, aside from the Lender sending an acce leration letter after defaults on the Note.” They argue, “It wa s the payment defaults on the First Loan, a note described as part of the Loan agreem ent in the first definition in the Deed of Trust for the Note, that contractually cau sed the accrual of Hometrust’s cause of action to enforce both the First Loan and the Note and led to the February 5, foreclosure. That was as early as the default letter sent pr ior to the acceleration that led to the February 5, 2008, foreclosure.” The same argument was made , almost verbatim, in Thompson : Citing to Paragraph 21 of the Deed of Trust, Thompson contends that “it was the payment defaults on the First Loan that contractually caused the accrual of IndyMac’s cause of action to enforce both the First Loan and the Note and led to the July 3, 2007 foreclosure.” Thompson , 2023 WL 17492, at *7. The Thompson court rejected this “one transaction” accrual theory. In Thompson , the court observed that the right to accelerate payments of the note due to default of other instruments was “at the option of the Lender.” Id. at *7. The deed of trust here provides, “If I do not cure the default on or before the date in the notice, you, at your option , may declare all that I owe under this Loan Agreement to be immediately due and payable . . . .” (Emphasis added). Thompson concluded the deed of trust gave the lender the right, not the obligation, to accelerate the balance on the note based on an existing default under the terms of an obligation secu red by a superior lien, such as the first loan. See id. at *7. “Thus [the deed of trust] does nothing to cha nge the rule under–19– Section 3.118 that a cause of action fo r enforcement of a note accrues upon maturity or acceleration.” Id. (citing T EX
. B US
. & C OM
. C ODE A NN
. § 3.118(a) and Holy Cross Church of God in Christ, 44 S.W.3d at 566)). We conclude Thompson is indistinguishable in this regard and apply it. Appellants failed to raise a fact issue regarding their affirm ative defense that appellee’s claim accrued outside th e applicable limitations period. See Thompson , 2023 WL 17492, at *7 (citing Santos , 2022 WL 2678846, at *6). We conclude appellee has demonstrated that it filed th is lawsuit within the time prescribed by section 3.118(a). See T EX
. B US
. & C OM
. C ODE A NN
. § 3.118(a); Thompson , 2023 WL 17492, at *6. We overrule appellants’ third, fourth, fifth, and seventh issues. C. Waiver In their sixth issue, appellants argue appellee waived its right to relief because it took no action for twelve years after its claim “contractually accrued.” The First Court of Appeals has rejected this waiver argument: . . . Thompson argues Yellowfin’s ri ght to sue on a debt was waived because it took no action on it for more than thirteen years after its claim contractually accrued. This issue is premised on Thompson’s mistaken contention that Yellowfin ’s claim to enforce the Note accrued upon the 2007 foreclosure. We have already explained why Thompson’s position on accrual lacks merit. Accordingly, we overrule Thompson’s fourth issue. Thompson , 2023 WL 17492, at *8.–20– We have determined a ppellee’s cause of action accrued on March 25, 2020, rather than at the time of the 2008 foreclosur e. We overrule appellants’ sixth issue. See id . at *8. D. Evidence of Amount Demanded In their eighth issue, appellants argue that even if appellee could enforce the note, appellee introduced no admissible su mmary-judgment proof of the amount of its alleged claim due to a lack of record s of servicing the loan. They argue the amount allegedly owed twelve years afte r the foreclosure is “a naked guess.” Here, Appellee’s records custodian, Ma tt Miller, averred in an affidavit: According to Plaintiff’s record s, Defendants ow e a balance of $24,909.60. Plaintiff is not accr uing pre-judgment interest. The balance owed was calcu lated by conducting an amortization of the original principal amount of the No te in accordance with the terms prescribed by the Note (ie: an amortization of $29,325.00.00 over thirty years with interest accruing at a rate of 10.00%) then assuming that each and every payment was tim ely made through June 1, 2019. To the extent any payment was not made prior to June 1, 2019, Yellowfin waives its right to collect that payment and is not seeking to recover any portion of that payment through this lawsuit.
In Santos , Yellowfin’s records custodian provided similar evidence in an affidavit offered in suppo rt of summary judgment. 5 Santos , 2022 WL 2678846, at

5 In Santos , Yellowfin’s affidavit stated: According to Plaintiff's records, Defendant owes a balance of $21,023.13. Plaintiff is not accruing pre-judgment interest. The balance owed was cal culated by conducting an amortization of the original principal amount of the Note in accordance with the terms prescribed by the Note (ie: an amortization of $24,398.00 over twenty years with interest accruing at a rate of 11.25 %, and a final balloon payment of $17,263.03) then assumi ng that each and every payment was timely made through May 1, 2019. To the extent any payment was not made prior to June 1, 2019,–21– *7. The Santos court concluded, “This uncontrove rted evidence is sufficient to establish the amount owed.” Id. (citing FFP Mktg., 169 S.W.3d at 411 (“Generally, an affidavit that sets forth the total balanc e, due on a note is sufficient to sustain an award of summary judgment. Detailed pr oof of the balance is not required.”); Das v. Deutsche Bank Nat’l Tr. Co. , No. 05-12-01612-CV, 2014 WL 1022385, at *2 (Tex. App.—Dallas Mar. 5, 2014, pet. denied) (mem. op.) (accepting affidavit testimony from an employee of the “loan . . . servicing agent” as valid evidence of the balance due and owing on the note, gi ven the employee’s testimony that he had verified and researched the loan’s history and current account information on behalf of the holder, Deutsche Bank); Albright v. Regions Bank, No. 13-08-262- CV, 2009 WL 3489853, at *4 (T ex. App.—Corpus Christi- Edinburg Oct. 29, 2009, no pet.) (mem. op.) (“An affidavit ma de on personal knowledge of the bank officer, which identifies the notes and guaranty and recites the principal and interest due . . . is sufficient s upport a summary judgment motion.”); Greene v. Deutsche Bank Nat’l Tr. Co. , No. 01-04-00483-CV, 2005 WL 1244604, at 1, 3 (Tex. App.—Houston [1st Dist.] May 26, 2005, pet. denied) (mem. op.) (accepting the affidavit of a manager for the “loan servicing agent” as a person sufficiently situated to testify on the balance owed, ba sed on synthesis of eleven records related

Yellowfin waives its right to collect that payment and is not seeking to recover any portion of that payment through this lawsuit.
Santos , 2022 WL 2678846, at *7.–22– to the loan’s account history.)). Appellant s did not present any evidence that they owed a different amount of money or that they were entitled to any credits or offsets (beyond the default amounts excused through June 1, 2019). See id. (citing Sandhu v. Pinglia Invs. Of Tex., L.L.C., No. 14-08-00184-C V, 2009 WL 1795032, at *5 (Tex. App.—Houston [14th Dist.] June 25, 2009, pet. denied) (mem. op.) (“Moreover, Sandhu has not presented any controverting evidence raising a fact issue as to Pinglia Investment’s method of computation and the accuracy of its figures.”)). The First Court of Appeals, following Santos , rejected appellants’ “naked guess” argument. See Thompson , 2023 WL 17492, at *8-9. In Thompson , appellee’s custodian of records, Miller, provided affidavit tes timony similar to his affidavits here and in Santos

. See Thompson , 2023 WL 17492, at *7. The Thompson court stated: Moreover, in Santos , the Fourteenth Court of Appeals held that almost identical testimony was sufficient summary judgment evidence to establish the amount owed on the outstanding note. Santos , 2022 WL 2678846, at *7. Thompson did not pres ent any evidence that she owed a different amount of money or that she was entitled to any credits or offsets (beyond the amounts waived by Yellowfin through June 2019). See id. Accordingly, we hold that Yellowfin carried its summary judgment burden to show its entitle ment to the amounts awarded by the trial court. Id. at *8 (emphasis added). We conclude appellee ca rried its summary judgment burden to demonstrate its entitlement to the amount awarded by the trial court. See id

.–23– We overrule appellant’s eighth issue.
E. Summary judgment standards and evidence In their second issue, appellants argue the summary judgment is “void” because the trial court “failed to meet the standards of T EX
. R. C IV
. P. 166a and failed to follow relevant precedent.” See T EX
. R. C IV
. P. 166a. First, appellants argue “t here was no business record supporting the amount demanded, only a guess by someone with no knowledge.” We have overruled appellants’ eighth issue raising this argument. See Thompson , 2023 WL 17492, at *7-8 (citing Santos , 2022 WL 2678846, at *7). Second, appellants argue the trial c ourt did not indulge every reasonable inference and resolve any doubts in their favor as summary judgment nonmovants. See, e.g., Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003). Appellants specify two in ferences the trial court failed to recognize. 6 They argue, “If it had just upheld t hose two inferences then the issue of the two year limitations peri od for a deficiency in T EX
. P ROP
. C ODE § 51.003 and the four years for debt in T EX
. C IV
. P RAC
. & R EM
. C ODE § 16.004 would have immediately precluded summary judgment in favor of a plaintiff who filed suit

6 Appellant states the two inferences as follows: “The second note, the one that Yellowfin is tryi ng to enforce more than twelve years after the 2008 foreclosure of the first, was part of the same transaction as the First Loan. It was not a separate transaction.” “The default on the First Loan caused the accrua l of the original lender’s cause of action to enforce both the First Loan and on the Note. That was as early as the default letter sent prior to the acceleration that led to the February 2008 foreclosure.”–24– almost twelve years after the cause of action accrued.” We agree with the Fourteenth Court of Appeals, which said of a similar argument against Yellowfin, “But these are legal arguments, not facts from which inferences may be made or doubts to be resolved.” Santos , 2022 WL 2678846, at *4. Mo reover, the inferences are contrary to law. See Thompson , 2023 WL 17492, at *5-7 (rejecting arguments that (1) cause of action accrued at the poi nt of foreclosure and (2) section 51.003 or section 16.004 applied). Third, appellants argue that appe llee—as an “assignee”—had no greater rights than Hometrust, which appellants a ssert would itself have been time-barred from bringing this action more than two or four years from the date of the first loan’s foreclosure. We have held th is action accrued on the date appellee accelerated payment, not from the time of foreclosure. We reject appellants’ “assignment” argument. Fourth, appellants assert the trial cour t abused its discretion in denying their plea to the jurisdiction and in granting su mmary judgment due to lack of proof of appellee’s standing. We have overruled appellants’ first issue in which they argued appellee lacked standing to bring its claim. Moreover, the notice of appeal states, “The judgment being appealed was ente red on January 18, 2021.” The judgment of January 18, 2021, disposes of appe llee’s motion for summary judgment. As for appellants’ complaint that the trial court a bused its discretion in denying their plea–25– to the jurisdiction, their second such plea, 7 absent some effort to have amended the notice of appeal, we are precluded from c onsidering an appeal from an order not identified in the notice of appeal. See T EX
. R. A PP
. P. 25.1(b) (“The filing of a notice of appeal by any party invokes the appellate court's ju risdiction over all parties to the trial court's judg ment or order appealed from.”). See also Fain v. Georgen , No. 03-17-00313-CV, 2017 WL 4766654, at *3 (Tex. App.—Austin Oct. 19, 2017, no pet.) (mem. op.) (collecting opinions for the proposition that a notice of appeal cannot be amended to challenge an “entirely di fferent order than the one named in the notice”). Additionally, appellants failed to include in the record a trial court order denying their plea to the jurisdiction. Appellants cite to an electronic “case summary” in the record. It contains an Ap ril 15, 2021 entry stating, “Order Denied . . . Order Denying Defendant’s Plea to the Jurisdiction.” Even if the case summary were akin to a docket sheet, which we do not decide, “Docket en tries are generally considered to be a memorandum made fo r the convenience of the clerk and the

7 We identified above the plea to the jurisdiction, or iginal answer, and counterclaim filed on August 10, 2020, and the final judgment of Janua ry 18, 2021, which disposed of the case on the merits. The judgment implicitly denied appellants’ jurisd ictional challenge alleged in their pre-judgment pleadings of August 10, 2020. See, e.g., Thomas v. Long , 207 S.W.3d 334, 340-41 (Tex. 2006) (“Because a trial court cannot reach the merits of a case without subject matter jurisdic tion, a trial court that rules on the merits of an issue without explicitly rejecting an asserted jurisdic tional attack has implicitly denied the jurisdictional challenge.”). Here, we address appellants’ second plea to the juri sdiction, filed on February 15, 2021, and order thereon, apparently entered on April 15, 2021, after th e trial court’s final judgment of January 18, 2021.–26– trial court and not part of th e record to be considered.” WMN, Inc. v. A-ABC Appliance, Inc., No. 05-00-00647-CV, 2001 WL 253718, at *2 (Tex. App.—Dallas Mar. 15, 2001, no pet.) (m em. op.). Entries on docket sheets are not generally considered to be trial court orders. See Haut v. Green Cafe Mgmt., Inc. , 376 S.W.3d 171, 179 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The clerk’s record on appeal “must” include copies of the court’s order that is being appealed.
T EX
. R. A PP
. P. 34.5(a)(5). “ An appellant bears the burden to bring forward a record that enables the appellate court to determine whether a ppellant’s complaints constitute reversible error.” Blue Window Capital, LLC v. City of Dallas, No. 05- 22-00042-CV, 2022 WL 9765467, at *4 (Tex . App.—Dallas Oct. 17, 2022, no pet.) (mem. op.); In re M.N.M. , No. 05-14-00723-CV, 2014 WL 6737003, at *8 (Tex. App.—Dallas Dec. 1, 2014, pet. denied) (mem. op.) (stating the same proposition and quoting rule 44.1 of th e Texas Rules of Civil Procedure, “No judgment may be reversed on appeal on th e ground that the trial court made an error of law unless the court of appeals conc ludes that the error complained of . . . probably cause[d] the rendition of an improper judgment. . . .”)). We reject appellants’ argument that th e trial court abused its discretion in denying their plea to the jurisdiction. We overrule appellants’ second issue.–27– Conclusion We overrule appellants’ eight issues a nd affirm the trial court’s judgment.

210306F.P05 /Bill Pedersen, III / BILL PEDERSEN, III JUSTICE–28– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

TYVON C. SMITH AND TAMARA J. SMITH, Appellants
No. 05-21-00306-CV V.
YELLOWFIN LOAN SERVICING CORP., AS SUCCESSOR IN INTEREST TO HOMETRUST MORTGAGE COMPANY, Appellee On Appeal from the County Civil Court at Law No 2, Harris County, Texas Trial Court Cause No. 1156795. Opinion delivered by Justice Pedersen, III. Justices Carlyle and Garcia participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. It is ORDERED that appellee YELLOWFIN LOAN SERVICING CORP., AS SUCCESSOR IN INTEREST TO HOMETRUST MORTGAGE COMPANY recover its costs of this appeal from appellants TYVON C. SMITH AND TAMARA J. SMITH.
Judgment entered this 22nd day of March, 2023.