### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

ON MOTION F OR REHEARING

NO. 03-17-00308- CV

Douglas Brann ick and Joyce Br anni ck, Appellan ts

v. Aurora Loan Service s, LLC; Aurora Bank, FSB; Nationstar M ortgage , LLC; and Citibank , N.A., as Trustee for Lehman XS Trustm ortgage P ass-Through Cer tificates, Series 2006-7, A ppellees

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 274 TH JUDICI AL DISTRICT NO. C2014 -11 70A, H ONO RAB LE GARY L. STEEL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N We withdraw the opinion and judg ment issued on J uly 13, 2018, and substitut e the following memora n d u m opinion and judgme nt in their place , and deny appellants’ motion for r ehea ring

. Appellants Doug las Br annick and J oy ce Br annick filed suit seeking to nullify a mortg ag e lien on their home. The Br annicks named as defe ndants appellee s Nationstar Mortg ag e, L L C (Na tionstar); Au ro ra L o an Service s, L L C; Aurora Ba nk, FSB ; and Citi bank, N.A., in its capa city as Trustee for L ehman XS Trustmortg ag e Pass-Throug h Certifica tes, Se ri es 2006-7. Nationstar counter claimed for a judgme nt of fore closure and a writ of possession. See Tex. R. Civ. P. 309, 310. The trial court denied the Brannicks’ motion for summ ary judgme nt on Nationstar’ scounter claim and g ran t ed Na t i onstar’s cross-motion. The Br annicks appea l, arg uing that they 1 conclusi v el y es t ablished that the statute of limit ations had run on the counter claim and that Nationstar failed to demonstrate its entitlement to summary judgme nt. For the rea sons that follow, we will af

firm the trial c ourt’s judg ment.

F ACTUAL AND P ROCEDURAL BACK GR OUND I n Marc h of 2006, the Br annicks ref inance d their home with a $395,000 home-e quity loan. The transac tion consisted, in rele vant part, of a Texas Home Equity Adjustable Rate Note (Note) and a Texas Home Equity S ec u ri t y I nstrument (Secur ity I nstrument). Doug las Br annick signe d the Note and ag ree d to repa y the principal in monthly instal l m ents with interest. Both appellants signe d the Security I nstrument convey ing title to their home “in trust with power of sale”
to Mortg ag e Elec tronic Reg istrations Sy stems, I nc. (MERS). The Sec urity I nstrument rec ites that the power of sale w as intended to be a “f ully enfor cea ble lien” to sec ure the loan. MERS subsequently assig ned the Security I nstrument to appellee Aurora L oan Service s. On J une 8, 201 0 , Aurora sent Doug las a “Specia l For bear ance Ag ree ment” stating that Doug las was in defa

ult, that the loan had been acc eler ated and the fu l l b alanc e of principal and interest was du e i m m ed i at el y , and setting out the steps nece ssary to reinstate the loan. Aurora subsequently assig ned its rig hts to Nationstar in J une 2012. Shortly afte rwa rds, Nationstar informed Doug las by letter of the total amount of the debt but reque sted immediate pay ment of a lesser sum.

The Br annicks wer e repr esente d by counsel in the trial court but are pro se on appea l. “We 1 hold pro se litigants t o the s ame procedur al s tandar ds as we do litigants represe nted by counsel to avoid g iving pro se litigants an unfair advanta g e.” Veigel v. Texas Boll W eev il Eradication Found., In c. , 5 4 9 S .W.3d 193, 195 n.1 (Tex. App.—Austin 2018, no pet.) (citing Mansfield State Ban k v. Cohn , 573 S.W .2d 181, 184-85 (Te x . 1978)). 2I n a letter sent in April of 2013, Nationstar decla red Doug las in defa

ult, g ave him an opportunity to

cure , and g ave notice of its intent to acc eler ate if he did not. After Doug las failed to cure the defa ult, Nationstar se nt him noti ce of acc eler ation and dema

nded pay ment of the full amount due. The Security I nstrument provides that the holder of the Note may not fore close on the lien without a court order but, onc e that order is obta ined, the holder may fore close on the lien and have the home sold by t h e t ru s t ee under the Security I nstrument without need of a judgme nt of fore closure. Nationstar applied for and o b t ained an expedited order under Texas Rule of Civil Procedur e 736 g ranting the require d permission. See Tex. R. Civ. P. 735.1(a) (“Rule 736 provides the proc edure for obtaining a court order, when require d, to allow foreclosure of a lien c ontaining

a power of sale in the secur ity instrument

. . . cre ating the lien, including a lien secur ing

. . . a home equity loan

. . . .”). Howeve r, the order was automatically stay ed when the Br annicks filed the underlying lawsuit. See id. R. 736.11( a). The Br annicks asser ted a cause of action for decla ratory relief that the lien was invalid and that the statute of limit ations had run. Nationstar counter claimed for a judgme nt of fore closure, a writ of possession, and a n awa rd of a ttorney ’s fe es. The Br annicks filed a partial motion for traditional summary judgme nt arg uing that the statute of limit ations had run on Nationstar’ s counter claim, and Nationstar filed a cross-motion. 2 The trial court denied the Br annicks’ motion, g rante d Na t i o nstar’s, and rende red a judgme nt of fore closure and writ of p ossession. See generally id. R. 309 (judg ment in fore closure case ), 310 (writ of posse ssion). The B rannic ks appea l from that judg ment.

I n the same motion wher e Na tionstar moved for summary judgme nt on its countercla im, 2 all appellee s also moved for traditional and no-evide nce summary judgme nt on the Br annicks’ aff irmative claims for relief

. The trial co u rt gra nted appellee s’ motion, but the Br annicks do not challeng e that par

t of the judg ment on appea l. 3STANDARD OF REVIEW We revie w the trial court’s ruling on a motion for summary judgme nt de novo. Exx on Mobil Corp. v. Rincones , 520 S.W .3d 572, 579 (Tex. 2017). To preva il on a traditional motion for summary judgme nt, the moving party has the burden to demonstrate that no g enuine issue of materia l fac t exis ts and, there fore , that it is entitled to judgme nt as a matter of law. Tex. R. Civ. P. 166a(c ); Lightni ng Oil Co. v. A n a d a r ko E & P Onshore , LLC , 520 S.W .3d 39, 45 (Tex. 2017). More specific ally , the moving party must prese nt evidenc e conclusively establishing its claim or neg ating an element of t he respondent’s claim or defense as a matter of l aw. KCM Fin. LLC v. Brad s h a w , 457 S.W .3d 70, 79 (Tex

. 2 0 15). When considering whether this burden has been met, we review the evidence in the l ight most favor able to the non-movant, indulge ever y reas o n ab l e inferenc e in the non-movant’s favor , and resolve all doubts ag ainst the motion. Lightni ng Oil Co. , 520 S.W .3d at 45.

ANALYSIS Statu te of Limi tation s

I n their first issue, the Br annicks asser t that the trial court err ed in denying their motion for summary judgme nt on their statute of limit ations defen s e and g ranting Nationstar’ s. B eca use both parties moved for summary judgme nt and the trial court g rante d one motion and denied the other, “we revie w all the summary judgme nt evidenc e, deter mine all of the issues prese nted, and rende r the judgme nt the trial court shoul d h av e. ” Id. (quoting Merriman v. XTO Energy, Inc. , 407 S.W .3d 244, 248 (Tex. 2013)).

4“A sale of rea l proper ty under a power of sale in a m o rt gage o r d eed of trust that

cre ates a rea l property

lien must be made not l ater than four y ear s after

the day the ca use of a ction

acc rues.” Tex. Civ. Prac. & Rem. Code § 16.035(b). A cause of action ordinarily does not a ccr ue “until the maturity date of the last note, obliga tion, or installment.” Id. § 16.035(e)

. Howeve r, when the deed of trust contains an optional acc eler ation clause , as the Security I nstrument does, “the action

acc rues only when the holder actua lly exercises its option to acc eler ate.” Holy Cross Church of God in Christ v. W

olf , 44 S.W .3d 562, 566 (Tex. 2001). An eff ective acc eler ation require s that the holder g ive the borrowe r notice of intent to acc eler ate and a separ ate notice of acc eler ation. Id

. Even when the hol der ex erc ises its option to acc eler ate, the holder can aban d o n acceler ation by continuing to

acc ept pay

ment without ex erc ising a ny of the re medies ava ilable to it upon default, by ag ree ment, or by other actions. Id. at 566-67. The effe ct of the abandonment i s t o re store the note’s original maturity date which, in turn, rese ts the statute of limit ations. Id. at 567; Khan v. GBAK Props., Inc. , 371 S.W .3d 347, 353 (Tex. App.—Houston [1s t Dist.] 2012, no pet.).

The Br annicks arg ued that the rec itations in the forbe ara nce ag ree ment conclusively established that the Note had been acc eler ated in 2010, making Nationstar’ s counter claim untimely

. Nationstar arg ued that even if the Br annicks h ad es tablished an eff ective acc eler ation in 2010, Nationstar conclusively established that it abandone d acc eler ation within four y ear s by sending two letters demanding pay

ment of less than the acc eler ated balanc e of the loan. The Br annicks reply that Nationstar could not have abandone d acc eler ation beca use (1) the Note and Security I nstrument did
not a uthorize a bandonment, and (2) Nationstar ne ver g ave e x press notice of aba ndonment. Ba sed on the re cord be fore us, we a g ree with Nationstar.

5Texas courts have analy zed abandonme nt of acc eler ation by ref ere nce to traditional principles of waiver

. See Graham v. L NV Corp. , No. 03-16-00235-CV, 2016 WL 6407306, at *3 (Tex. App.—Austin Oct. 26, 2016, pet. denied) (mem. op.) (c o l l ecting case s). The elements of waiver are : (1) an ex i s t i n g ri g ht, benef it, or advanta g e held by a party ; (2) the party ’s actua l knowledg e of its exis tence ; and (3) the party ’s actua l intent to relinquish the rig ht o r conduct inconsistent with that rig ht. Ulico Cas. Co. v. Allied Pilots Ass’n , 262 S.W .3d 773, 778 (Tex. 2008). “Waiver

. . . can occur either expressly , throug h a clea r repudia tion of the rig ht, or impliedly , throug h conduct inconsistent with a cl aim to the rig ht.” G.T. Leach Builders, LLC v. Sapphire V.P., LP , 458 S.W

. 3d 502, 511 (Tex. 2015). Waiver “is ‘esse ntially unilatera l’ in char acte r and ‘re sults

as a leg al conseque nce from some act or conduct of the party ag ainst whom it operates; no act of the party in whose favo r i t i s m ad e i s nece ssary to complete it.’” Shields Ltd. P’ship

v. Bradberry , 526 S.W .3d 471, 485 (Tex. 2017) (quoting Massachusetts Bonding & Ins. Co. v. Orkin Exterminating Co. , 416 S.W .2d 396, 401 (Tex. 1967)).

The Br annicks contend that Nationstar has no contra ctual rig ht to waive acc eler ation, but w hether a party has waived a contra ctual rig ht doe s not de pend on whether the contra ct allows for it. See id. at 482 (obser ving t h at contra ctual doctrine of waiver rests on principle “that any competent adult can abandon a leg al rig ht and if he does so then he has lost it fore ver” ); see also id.
at 482-83 (holding that even a non-wa iver c lause may

be wa ived). And N ationstar is not require d
to show an express renunc iation but “may show abandonme nt of acc eler ation by conduct.” Bracke n

v. W ells Farg o B a n k, N

. A. , No. 05-16-01334- CV, 2018 WL 1026268, at *3 (Tex. App.—Dallas Fe b. 23, 2018, no pet.) (mem. op.). Nationstar arg ues that it unequivoca lly abandone d acc eler ation

6by twice demanding that Doug las pay less than the full amount of the loan. Be cause the contents of

the letters are not disputed but only their leg al eff ect, whether waiver occur red is a question of law. See Crosstex Energy Servs., L.P. v. Pro Plus, Inc. , 430 S.W .3d 384, 394 (Tex. 2014) (obser ving that waiver is question of law whe n rele vant fa cts are undisputed). By letter dated J uly 15, 2012, Nationstar informed Do u glas that it was the new service r of the Note, stated that the total amount of his debt had g rown to $379,490.53, and reque sted pay ment of th e l es ser sum of $97,563.86. The letter also informed Doug las that, based on information from previous service rs, Nationstar believed Doug las “may be experiencing a financ ial hardship” and notified him of the exis tence of “modifica tions prog r a ms a n d o th e r workout solutions” that could assist him. Subsequently , in a letter dated April 19, 2013, Nationstar notified Doug las that he was in defa

ult and g ave him an opportunity to cure by paying $146,372.24 (also less than the full
amount due) within thirty -five day s. The letter further informed Doug las of Nationstar’ s conditional i n t en t t o acc eler ate the Note and make “the entire sum of both principal and interest due and pay able” if he failed to cure the defa ult. The letter also reminded Doug las that his next pay ment was due May 1. Take n toge ther, the le tters demonstrate that Nationstar was willing to acc ept pay ment of less than the full acc eler ated balanc e due o n the loan and additional pay ments from Doug las. Moreove r, the second letter ref lects that Nationstar considere d Doug las’ monthly pay ment obliga tions to still be in eff ect rathe r than the entire sum due and owing

. On these fac ts, we conclude that Nationstar conclusively demonstrated that it abandone d the 2010 acc eler ation and reinstated the loan. See Bracke n , 2018 WL 1026268, at *5; NSL Prop. Holdings, LLC v. Nationst ar Mortg., LLC , No. 02-16-00397- CV, 2017 WL 3526354, at *3 (Tex. App.—For t Worth Aug

. 17, 2017, pet. denied)

7(mem. op.); see also Boren v. U .S. Nat’l Bank Ass’n , 807 F.3d 99, 106 ( 5th Cir. 2015) (pre dicting that Texas Supreme Court w ould a pply waiver principles to hold that “[a] lender waives its e arlier

acc eler ation when it put[ s] the debtor on notice of its ab andonment

. . . by reque sting pay ment on less than the fu l l amount of the loan” (interna l quotations marks omitted)). We overr ule the Br annicks’ f

irst issue. 3

Nationst ar’s entitlem ent to su m m ary judgm ent I n their second issue, the Br annicks arg ue that the trial co u rt err ed in g ranting summary judgme n t beca use Nationstar did not establish its entitlement to judicial fore closure. Specifica lly , the Br annicks asser t that Nationstar failed to overc ome an alleg ed presumption of invalidity that attache s to a home-e quity loan under the Texas Constit ution, f a il e d to d e monstrate that the loan complies with all the require ments of Article XVI , Section 50(a) of the Texas Constit ution, and failed to produce a copy o f t h e No t e s igne d by both appellants. Nationstar asser ts that the Br annicks wa ived both arg uments by not presenting them to the trial court. “I ssues not expressly prese nted to the trial court by written motion, answ er or other resp o n s e s h al l not be considere d on appea l as g rounds for reve rsal” of a summary judgme nt. Tex. R. Civ. P. 166a(c ); Exx onMobil Corp. v. Lazy R Ranch, LP , 511 S.W .3d 538, 545 (Tex. 2017). The Br annicks arg ued the statute of limit ations and “chai n o f t i t l e err ors” in their response to

The Br annicks also contend that the April 19, 2013 letter wa s i n ef fective to waive 3 acc eler ation beca

use i t was not sent by cer tified mail as required by Section 7(c) of the Note . We reje ct this arg ument bec a

u s e Se c tion 7(c) specific ally addre sses the require ments for sending a notice of defa ult rather t h an n o tices g ener ally

. The Br annicks do not challeng e whether the letter was eff ective as a notice of defa ult but whether the content of the letter (w h ich they do not dispute rec eiving ) conve y ed Na tionstar’s aba ndonment of the 2010 a cce lera tion.

8Nationstar’ s moti o n but did not asser t any of the arg uments they now make on appea l. Consequently , we conclude that the Br annicks have waived eac h of these arg uments. Acc ording ly , 4

we ove rrule the ir second issue.

Chal lenges to the ju dgm ent

The Br annicks arg ue in their third issue that the trial court’s judgme nt d o es not confor m to the pleading s. See Tex. R. Civ. P. 301 (“The judgme nt of the court shall confor m to the pleading s.”). Specifica lly , the Br annicks arg ue that the trial c o u r t im p r o p e r ly g r a

n ted Nationstar both

a judgme nt of fore closure and permitted it to proce ed with exercising its p o wer of sale. I n their fourth issue, the Br annicks asser t it was there fore impermissible to order the proper ty sold beca

use that reme dy is limit ed to judicial fore closures. See id. R. 310. Nationstar arg ues that the trial court’s order does not g rant it the rig ht to ex erc ise the powe r of sa le. 5

The Br annicks arg ue that this issue cannot be waived beca use it amounts to a challeng e to 4 the leg al sufficie ncy of Nationstar’ s gro u n d s fo r summary judgme nt. See, e.g. , Amedisys, Inc. v. K i n g w o o d Home Health Care, LLC , 437 S.W .3d 507, 512 (Tex. 2014) (stating rule that nonmovant may challeng e “the leg al sufficie ncy of the g rounds prese nted by the movant” for the first time on appea l). Howeve r, the T ex as Supreme Court has held that the terms and conditions in section 50(a) “only assume constitutional signific ance when their absenc e in a loan’s terms is used as a shield from fore closu re . ” Ga r o f olo v. Ocwen Loan Servic ing, L.L.C

. , 497 S.W .3d 474, 478 (Tex. 2016); see W

ood v. HSBC Bank USA, N.A. , 505 S.W .3d 542, 546 (Tex. 2016) (obser ving that “sec tion 50( a) doe s not create substantive rig hts bey ond a def ense to f orec losure of a home-e quity lien secur ing a constitutionally noncompliant loan”) . The B rannic ks did not raise sec tion 50(a) in the t rial court as a defe nse t o fore closure and t h ey m ay n o t do so for the first time on appea l. See W atson v. Tipton , 274 S.W .3d 791, 800 (Tex. App.—For t Worth 2008, pet. denied) (“A ccor dingly , Appellants had to a ffirma tively plead homestead and cannot raise it f or the fir st tim e on appe al.”)

. Nationstar also asser

ts that the Br annicks waived the rig ht to complain about the t ri al 5 court’s judgme nt beca

use the parties jointly asked the trial court to enter a substantively identical judgme nt. We assume without deciding that the B rannic ks did not waive this issue. 9T h e Br annicks base their arg uments on the following part of the t ri al

court’s judg ment:
ORDERED, ADJUDGED, AND DECREED that all rig ht, title, and interest of Plaintiffs in the Property encumbe re d by the Security I nstrument is subject to fore closure and that Nationstar shall have judgme nt for fore closure of the Property

. Fur thermore , this judgme nt serve s as an Orde r authorizi n g Nationstar to fore close the lien cre ated under Tex. Const. art. XVI , § 50(a) (6) in compliance with the Note and Security I nstrument and Te x . R. Civ. P . § 735.3 and § 309.

The Br annicks arg ue that the second sentenc e authorizes Nationstar to proce ed with the private sale contemplated by the Security I nstrument, but that interpre tation is inconsistent wi t h t h e other portions of the judgme nt. See Shanks v. Treadway , 110 S.W .3d 444, 447 (Tex. 2003) (“Judgments should be construed as a whole to harmonize and g ive eff ect to the entire decr ee.” (citing Constance

v. Constance , 544 S.W .2d 659, 660 (Tex. 1976)))

. As require d by the Rules of Civil Procedur e for judgme nts of fore closure, the trial court’s judgme nt expressly order s the lien fore clo s ed an d t he proper ty sold by a sheriff or constable and provides that the judg ment has the for ce a nd eff ect of a writ of possession in favor of the purcha ser. See Tex. R. Civ. P. 309, 310. Read as a whole, the trial court’s judgme nt does not authorize Nationstar itself to exercise its power of sale. We overr ule the Br annicks’ third a

nd fourth issues.

CONCLUSION We affir m the trial court’ s judgme nt.

10_________________________________________ Cindy Olson Bour land, J ustice Be fore J ustices Pury ear , Field, a nd Bour land Affir med on Motion for Rehea ring Filed: Nove mber 2, 2018

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