AFFIRMED and Opinion Filed November 3, 2021 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-20-00576-CV 

GLENN M. IHDE AND C. ALICE IHDE, Appellants 

V. 

NATIONSTAR MORTGAGE LLC D/B/A MR. COOPER AND THE BANK 

OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK AS 

TRUSTEE FOR FIRST HORIZON ALTERNATIVE MORTGAGE 

SECURITIES TRUST 2006-FA1, Appellees 

On Appeal from the 219th Judicial District Court 

Collin County, Texas 

Trial Court Cause No. 219-04748-2017 

MEMORANDUM OPINION 

Before Justices Osborne, Pedersen, III, and Reichek 

Opinion by Justice Reichek 

Glenn and Alice Ihde appeal the trial court’s summary judgment granting 

foreclosure of the deed of trust lien on their house. In four issues, the Ihdes generally 

contend the trial court erred in (1) failing to abide by its scheduling order, (2) 

considering defective summary judgment evidence, and (3) granting summary 

judgment on a lien claim that was barred by the statute of limitations. We affirm the 

trial court’s judgment. 

 
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Factual Background

 In 2004, the Ihdes signed a purchase money note secured by a deed of trust 

lien on property located in McKinney, Texas. The original lender was First Horizon 

Home Loan Corporation (“First Horizon”). The current owner of the note and deed 

of trust is the Bank of New York Mellon f/k/a the Bank of New York as Trustee for 

First Horizon Alternative Mortgage Securities Trust 2006-FA1 (“BONY”). 

Nationstar Mortgage, LLC d/b/a Mr. Cooper (“Nationstar”) is the mortgage servicer 

for BONY. 

 It is undisputed that the Ihdes stopped making payments on their note in 

March 2009. On May 4, 2009, First Horizon sent the Ihdes a notice of delinquency 

and informed them that the maturity of their note may be accelerated. One month 

later, on June 4, the law firm of Barrett Daffin Frappier Turner & Engel, LLP 

(“Barrett Daffin”) sent the Ihdes a notice that their debt had been accelerated. Barrett 

Daffin then sent a second notice of acceleration on August 26. 

 On March 4, 2010, Barrett Daffin sent the Ihdes a notice by certified mail, 

return receipt requested, containing the following language: 

Mortgagee under the Deed of Trust referenced below hereby rescinds 

the notice of acceleration dated 08/26/09 and all prior notices of 

acceleration. Mortgagee further agrees that Borrower may continue to 

pay the indebtedness due Mortgagee pursuant to the terms of the debt 

secured by the Deed of Trust. This Rescission of Acceleration does not 

waive or suspend the rights, interests or claims of Mortgagee, its 

successor or assigns, to accelerate and collect in the future the debt 

owed by Borrower. Mortgagee has appointed the undersigned as its 
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duly authorized agent to execute this instrument on its behalf for the 

purposes herein stated. 

. . . 

Sincerely, 

Barrett Daffin Frappier Turner & Engel, LLP 

None of the copies of the March 4 notice contained in the record has a physical 

signature by a member or representative of Barrett Daffin. 

 Over the course of the next seven years, the Ihdes’ debt was accelerated on 

multiple occasions followed by rescissions of acceleration. In addition, the Ihdes 

were in bankruptcy six times after the June 4, 2009 acceleration and their note was 

the subject of prior litigation. See Ihde v. First Horizon Home Loans, No. 05-15-

01084-CV, 2016 WL 7163857 (Tex. App.—Dallas Nov. 28, 2016, pet. denied) 

(mem. op.). 

 The Ihdes filed this suit on September 29, 2017, seeking a declaration that the 

note and deed of trust were void and unenforceable because appellees failed to seek 

enforcement of the note or exercise their rights under the deed of trust within the 

applicable limitations periods following the 2009 acceleration of their debt. 

Appellees answered and filed a counterclaim for foreclosure of the deed of trust lien. 

 On April 23, 2019, the trial court issued a scheduling order setting a trial date 

of October 28. The order specified that “[r]eset or continuance of the Initial Trial 
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Setting will not alter any deadline established by this Order or established by the 

Texas Rules of Civil Procedure, unless specifically provided by Rule 11 Agreement 

of the parties or Court order after motion showing good cause.” The deadline by 

which a motion for summary judgment could be filed was set at thirty days before 

the initial trial setting. The parties later agreed to reset the trial date to March 2, 

2020. 

 Appellees filed a motion for summary judgment on January 17, 2020. In the 

motion, appellees argued they were entitled to foreclose the deed of trust lien on the 

Ihdes’ property because the Ihdes had not made any payments on their mortgage 

since 2009 and the note was properly accelerated on June 26, 2019. With respect to 

the Ihdes’ assertion that the statute of limitations voided the note and deed of trust, 

appellees contended the 2009 acceleration on which the Ihdes relied was timely 

rescinded, which restored the note’s original maturity date and reset the limitations 

period. Appellees further argued that limitations does not bar a counterclaim for 

foreclosure under section 16.069 of the civil practice and remedies code. 

As summary judgment evidence, appellees submitted various documents and 

affidavits, including an affidavit signed by Robert D. Forster, II, an attorney with 

Barrett Daffin. In his affidavit, Forster testified that Barrett Daffin sent the Ihdes a 

notice on March 4, 2010 by certified mail, return receipt requested, stating the 2009 

accelerations of their note had been rescinded. Forster further testified the notice 

was sent “with the intent of rescinding the notices of acceleration of the subject 
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loan.” Attached to the affidavit were copies of the March 4 notice of rescission and 

proof of its mailing. The trial court set appellees’ motion for summary judgment to 

be heard on February 20, 2020, the same day the pretrial conference was scheduled 

to occur. 

The Ihdes objected to appellees’ motion for summary judgment on the ground 

that it was filed untimely pursuant to the scheduling order. Subject to that objection, 

the Ihdes responded that the March 4, 2010 notice of rescission was ineffective 

because it was unsigned. The Ihdes additionally argued that section 16.069 of the 

civil practice and remedies code did not revive appellees’ time barred claim because 

the statute does not apply to counterclaims against a party seeking only declaratory 

relief. The Ihdes later filed objections to appellees’ summary judgment evidence 

asserting, among other things, that all testimony regarding the effectiveness of the 

March 4 notice, and the intent behind it, was conclusory. 

 Following the hearing, the trial court signed a final judgment granting 

appellees’ motion and ordered that appellees “have judgment for foreclosure of the 

Deed of Trust Lien.” In the judgment, the trial court specifically held the statute of 

limitations did not bar enforcement of the note or the deed of trust lien. The Ihdes 

subsequently filed this appeal.

 
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Analysis

I. Scheduling Order 

 In their first issue, the Ihdes contend the trial court erred in considering 

appellees’ motion for summary judgment because it was not filed timely pursuant to 

the court’s scheduling order. Although the Ihdes acknowledge that trial courts have 

broad discretion to manage their dockets, they contend they were prejudiced by the 

untimely motion because it “disturbed the parties’ expectations.” 

 The trial court has a duty to schedule its cases in such a manner as to 

expeditiously dispose of them and, absent a showing of clear abuse of discretion, we 

will not interfere with the court’s management of its docket. Clanton v. Clark, 639 

S.W.2d 929, 931 (Tex. 1982). The trial court also has the inherent right to change 

or modify any interlocutory order until the judgment on the merits of the case 

becomes final. Bachman Ctr. Corp. v. Sale, 359 S.W.2d 290, 292 (Tex. App.—

Dallas 1962, writ ref’d n.r.e.). By setting appellees’ motion for summary judgment 

for submission, the trial court implicitly modified its scheduling order. In re Estate 

of Henry, 250 S.W.3d. 518, 527 (Tex. App.—Dallas 2008, no pet.); Trevino v. 

Trevino, 64 S.W.3d 166, 170 (Tex. App.—San Antonio 2001, no pet.). 

 Appellees’ motion for summary judgment was set to be heard at the parties’ 

pretrial conference. The purpose of a pretrial conference is to “assist in the 

disposition of the case without undue expense or burden to the parties.” TEX.R.CIV.

P. 166. Among the things that may be considered at a pretrial conference is the 
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identification of legal matters that may be disposed of by the court. Id.; see also, JP 

Morgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 653 (Tex. 

2018). The consideration of a late filed motion for summary judgment may be 

proper to prevent an unnecessary trial. See Trevino, 64 S.W.3d at 170. Although 

the Ihdes assert the court’s consideration of the motion “disturbed their 

expectations,” they do not claim that they did not receive adequate notice and an 

opportunity to respond. See id. Because the Ihdes have not shown they were 

prejudiced by the late-filed motion for summary judgment, we conclude the trial 

court did not abuse its discretion in hearing the motion at the pretrial conference. 

See id. We overrule the Ihdes’ first issue. 

II. Summary Judgment Evidence 

 In their second issue, the Ihdes contend the trial court erred in granting 

summary judgment based on improper evidence. The Ihdes assert that Forster’s 

statement that the March 4 notice was sent “with the intent of rescinding the notices 

of acceleration of the subject loan” is conclusory because it amounts to a legal 

conclusion that the notice was effective.1

 Even assuming we could characterize 

1

 Although the Ihdes raised other objections to the summary evidence in the trial court, they 

concede on appeal that these objections were not preserved because they were untimely and they 

did not obtain a ruling on the objections from the trial court. See TEX. R. APP. P. 33.1; Fortitude 

Energy, LLC v. Sooner Pipe LLC, 564 S.W.3d 167, 178 (Tex. App.—Houston [1st Dist.] 2018, no 

pet.) (mere granting of summary judgment motion not implicit ruling on objections). An assertion 

that testimony is conclusory need not be preserved, however, and may be raised for the first time 

on appeal. See Windrum v. Kareh, 581 S.W.3d 761, 768 (Tex. 2019). 
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Forster’s testimony as stating a legal conclusion in the manner suggested by the 

Ihdes, we conclude any error in admission of the testimony was harmless. 

To successfully challenge the alleged erroneous admission of evidence in a 

summary judgment proceeding, the complaining party must show the judgment 

turned on the particular evidence being challenged and the error in admitting it 

probably resulted in the rendition of an improper judgment. Owens v. Comerica 

Bank, 229 S.W.3d 544, 548 (Tex. App.—Dallas 2007, no pet.). The admission of 

allegedly incompetent evidence does not require reversal when there is competent 

evidence to support the judgment rendered. Roberts v. Clark, 188 S.W.3d 204, 208 

(Tex. App.—Tyler 2002, pet. denied). The dispositive issue in this case is whether 

the March 4 notice of rescission was legally effective to restore the maturity date of 

the note and reset the limitations period. As discussed below, the documents 

admitted into evidence show the March 4 notice met the statutory requirements for 

an effective rescission. Because the documentary evidence is sufficient to support 

the summary judgment in favor of appellees, Forster’s testimony regarding the 

subjective intent behind the March 4 notice was, at worst, irrelevant. See Balboa 

Ins. Co. v. K&D and Assocs., 589 S.W.2d 752, 756 (Tex. App.—Dallas 1979, writ 

ref’d n.r.e.) (testimony of subjective intent irrelevant where intent can be determined 

from unambiguous writing). 

The Ihdes similarly argue that two other affidavits submitted by appellees 

were conclusory because they rely on the acceleration of the note being effectively 
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rescinded. Again, because the documentary evidence supports the conclusion that 

acceleration was properly rescinded, the Ihdes’ argument is without merit. We 

resolve the Ihdes’ second issue against them. 

III. Rescission of Acceleration 

 In their third issue, the Ihdes contend the trial court erred in concluding the 

statute of limitations did not bar appellees’ enforcement of the note and deed of trust 

lien. The Ihdes assert the March 4, 2010 notice of rescission was ineffective to waive 

the acceleration of the maturity date of their note because it was unsigned. Based 

on this assertion, the Ihdes contend appellees’ claim for foreclosure accrued on June 

4, 2009 when the loan was first accelerated. Taking into account the various tolling 

periods created by their bankruptcies and the prior litigation, the Ihdes assert the lien 

became void on March 21, 2014 and the enforceability of the note became timebarred on March 21, 2016. 

We review a trial court's decision to grant a motion for summary judgment de 

novo. Helix Energy Solutions Grp., Inc. v. Gold, 522 S.W.3d 427, 431 (Tex. 2017). 

“We review the evidence presented in the motion and response in the light most 

favorable to the party against whom the summary judgment was rendered, crediting 

evidence favorable to that party if reasonable jurors could, and disregarding contrary 

evidence unless reasonable jurors could not.” Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). To prevail on a 

traditional motion for summary judgment, the movant has the burden to demonstrate 
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that no genuine issue of material fact exists and judgment should be rendered as a 

matter of law. TEX. R. CIV. P. 166a(c). 

Under section 16.035 of the Texas Civil Practice and Remedies Code, a suit 

for foreclosure of a real property lien must be brought within four years after the 

cause of action accrues. TEX. CIV. PRAC. & REM. CODE ANN. § 16.035. A suit to 

enforce a note must be brought within six years. TEX. BUS. & COM. CODE ANN. 

§ 3.118. A cause of action to foreclose on a real property lien accrues when the loan 

is accelerated. Khan v. GBAK Props., Inc., 371 S.W.3d 347, 353 (Tex. App.—

Houston [1st Dist.] 2012, no pet.); see also GMAC v. Uresti, 553 S.W.2d 660, 663 

(Tex. App.—Tyler 1977, writ ref’d n.r.e.) (“acceleration” is the change of maturity 

of a note from future to present). Once a debt has been accelerated, the note holder 

may unilaterally waive or abandon the acceleration so long as the borrower neither 

objects to the abandonment nor detrimentally relied on the acceleration. Florey v. 

U.S. Bank Nat’l Assoc., No. 05-20-00306-CV, 2021 WL 2525457, at * 4 (Tex. 

App.—Dallas June 21, 2021, pet. filed). When acceleration is abandoned, the 

contract is restored to its original condition, including restoring the loan's original 

maturity date and the statute of limitations is reset. Id. Abandonment can occur 

either expressly through a clear repudiation of the right of acceleration, or impliedly 

through conduct inconsistent with a claim to the right. Id. A clear repudiation of 

acceleration can be done through a notice of rescission. 
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Notices of rescission are governed by section 16.038 of the civil practice and 

remedies code. TEX. CIV. PRAC. & REM. CODE ANN. § 16.038. Under section 

16.038, a rescission or waiver of acceleration is effective if made by written notice 

by the lienholder, the servicer of the debt, or an attorney representing the lienholder 

and the notice is served by first class or certified mail addressed to the debtor at the 

debtor’s last known address. Id. “The affidavit of a person knowledgeable of the 

facts to the effect that service was completed is prima facie evidence of service.” Id. 

The March 4 notice of rescission meets the requirements of section 16.038. 

The Ihdes contend, however, the March 4 notice was not a clear repudiation of the 

acceleration because the notice was not signed. Nothing in section 16.038 requires 

that a notice of rescission properly served on a debtor be signed. Id. But the Ihdes 

argue the language of the notice suggests appellees did not intend to be bound by the 

rescission unless it was signed. We do not read the notice as containing a signature 

requirement. 

As authority for their argument that a signature was required, the Ihdes rely 

on Pennington v. HSBC Bank USA, N.A., 493 Fed. Appx. 548 (5th Cir. 2012). In 

Pennington, the court addressed a loan modification agreement that stated the 

agreement would not take effect until certain preconditions had been satisfied. Id. 

at 555. One of the preconditions was that the loan would not be modified unless the 

lender accepted the agreement by signing it and returning a copy to the borrower. 
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Id. The court concluded that, “[c]onsidering the explicit signature requirements,” 

there was no agreement without the bank’s signature. 

Unlike the agreement in Pennington, nothing in the March 4 notice suggests 

its effectiveness was dependent upon the notice being signed. The Ihdes point to the 

notice’s use of the terms “undersigned” and “execute” in reference to the bank’s 

appointment of an agent. But the mere use of these terms, without more, does not 

amount to an “explicit signature requirement” such as the one at issue in Pennington. 

Accordingly, the unsigned notice was legally sufficient to rescind the acceleration. 

See Krayem v. USRP (PAC), L.P., 194 S.W.3d 91, 94 (Tex. App.—Dallas 2006, pet. 

denied) (absent contract provision or legal authority requiring signature on notice, 

unsigned letter legally sufficient). 

 The Ihdes argue that the absence of a signature creates at least a fact issue as 

to whether appellees intended to be bound by the notice. We disagree. Appellees’ 

rescission of the acceleration was a unilateral act. There was no purpose in sending 

the March 4 notice other than to rescind the acceleration. If the bank did not intend 

to abandon its acceleration of the note, it simply would not have sent the notice. 

The cases cited by the Ihdes to support their contention that abandonment of 

acceleration is generally a question of fact all address the issue of whether a lender 

has waived acceleration of a debt by implication. See e.g. Pitts v. Bank of New York 

Mellon Trust Co., 583 S.W.3d 258, 262-63 (Tex. App.—Dallas 2018, no pet.). The 

analysis of whether there has been an implied waiver is inapplicable where the lender 
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has explicitly rescinded acceleration by written notice complying with section 

16.038. We overrule the Ihdes third issue. 

Because of our resolution of the first three issues, it is unnecessary for us to 

address the Ihdes’ remaining issue. We affirm the trial court’s judgment. 

 

200576F.P05 

 

/Amanda L. Reichek/

AMANDA L. REICHEK 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

GLENN M. IHDE AND C. ALICE 

IHDE, Appellants 

No. 05-20-00576-CV V. 

NATIONSTAR MORTGAGE LLC 

D/B/A MR. COOPER, AND THE 

BANK OF NEW YORK MELLON 

F/K/A THE BANK OF NEW YORK 

AS TRUSTEE FOR FIRST 

HORIZON ALTERNATIVE 

MORTGAGE SECURITIES TRUST 

2006-FA1, Appellees 

 On Appeal from the 219th Judicial 

District Court, Collin County, Texas 

Trial Court Cause No. 219-04748-

2017. 

Opinion delivered by Justice 

Reichek. Justices Osborne and 

Pedersen, III participating. 

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

court is AFFIRMED. 

 It is ORDERED that appellees NATIONSTAR MORTGAGE LLC D/B/A 

MR. COOPER, AND THE BANK OF NEW YORK MELLON F/K/A THE 

BANK OF NEW YORK AS TRUSTEE FOR FIRST HORIZON ALTERNATIVE 

MORTGAGE SECURITIES TRUST 2006-FA1 recover their costs of this appeal 

from appellants GLENN M. IHDE AND C. ALICE IHDE. 

Judgment entered November 3, 2021