NO. 12-14-00261-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KEN LANDERS AND

CLARLINDA LANDERS, 

APPELLANTS

V.

NATIONSTAR MORTGAGE, LLC,

APPELLEE

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§

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APPEAL FROM THE 392ND 

JUDICIAL DISTRICT COURT

HENDERSON COUNTY, TEXAS

OPINION

In one issue, Ken and Clarlinda Landers appeal the trial court’s judgment granting

Nationstar Mortgage, LLC’s summary judgment motion and denying the Landerses’ summary 

judgment motion. We reverse the trial court’s judgment, render in part, and remand in part.

BACKGROUND

The Landerses purchased a house with the proceeds of a loan they obtained from 

Nationstar’s predecessor in interest in 2006. They stopped making their monthly payments in 

September 2009, and the lender accelerated the maturity of the debt on November 9, 2009. The 

Landerses then filed suit against the lender asserting fraud and estoppel claims. 

After filing suit, the Landerses obtained an ex parte temporary restraining order enjoining 

the lender from ―conducting a foreclosure sale or otherwise dispossessing [the Landerses] of 

their interest in the aforementioned Property.‖ The temporary restraining order expired by its 

own terms ten days later. 

On August 7, 2013, the trial court signed the following agreed temporary injunction 

order:
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ON THIS DAY, the Court was presented with this Agreed Temporary Injunction Order 

(Order). Upon due consideration and pursuant to the parties’ agreement, the Court is of the 

opinion that the following Order should be entered.

The parties agree not to use this agreed Order to support their claims or defenses, and this 

Order will not be interpreted as any type of admission by either party hereto.

IT IS ORDERED that beginning on August 7, 2013, and so long as this case remains 

pending, defendant Aurora Commercial Corp., successor by merger to Aurora Bank, FSB and 

owner of Aurora Loan Services, LLC (Aurora), its agents, representatives, employees, privies, 

assignees, successors, affiliates, parents, subsidiaries, and attorneys, and all persons acting in 

concert with any of the foregoing are enjoined and restrained from conducting a foreclosure sale 

of the property located at 2379 Rose Pointe Lane, Athens, Texas 75752 (the ―Property‖).

Upon dismissal, final judgment, or other resolution causing the Court to close this case, 

this Order shall have no further force and effect.

On September 12, 2013, the trial court granted summary judgment in the fraud suit in

favor of the lender and the agreed temporary injunction expired by its own terms. The Sixth 

Court of Appeals affirmed the summary judgment. See generally Landers v. Aurora Loan 

Servs., Inc., 434 S.W.3d 291 (Tex. App.–Texarkana 2014, no pet.).

On December 23, 2013, Nationstar filed this suit to judicially foreclose its lien on the 

property under the deed of trust, or, in the alternative, to rescind the contract under the vendor’s 

lien in the warranty deed. Nationstar then filed a motion for traditional summary judgment on 

the judicial foreclosure claim. The Landerses responded, and also urged in a motion for

traditional summary judgment, that Nationstar’s judicial foreclosure claim was barred by 

limitations.

Nationstar asserted that its suit was timely because limitations was tolled by the 

temporary restraining order and the temporary injunction. The trial court granted Nationstar’s 

summary judgment motion and denied the Landerses’. This appeal followed.

STATUTE OF LIMITATIONS

In their sole issue, the Landerses contend the trial court should have granted their

summary judgment motion and denied Nationstar’s because the limitations period expired before 

Nationstar filed its suit for judicial foreclosure. In the first of four subissues, they argue that any 

tolling by the temporary restraining order and the temporary injunction applied to the limitations
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period for nonjudicial foreclosure only and not to the one for judicial foreclosure.1 We agree. 

Therefore, we do not address the Landerses’ remaining subissues.

Standard of Review

We review a trial court’s summary judgment de novo. Travelers Ins. Co. v. Joachim, 

315 S.W.3d 860, 862 (Tex. 2010). We review the evidence presented in the motion and response 

in the light most favorable to the party against whom 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 v. Fielding, 289 S.W.3d 844, 

848 (Tex. 2009). A traditional motion for summary judgment is granted only when the movant 

establishes that there are no genuine issues of material fact and that it is entitled to judgment as a 

matter of law. Id. 

When both parties move for summary judgment and the trial court grants one motion and 

denies the other, the reviewing court should review the summary judgment evidence presented 

by both sides, determine all questions presented, and render the judgment that the trial court 

should have rendered. Mid-Continent Cas. v. Global Enercom, Mgmt., 323 S.W.3d 151, 153-54 

(Tex. 2010). A defendant moving for summary judgment on a statute of limitations affirmative 

defense must prove conclusively that defense’s elements. Shah v. Moss, 67 S.W.3d 836, 842 

(Tex. 2001). 

Applicable Law

A statute of limitations does not give any right of action, but restricts the period within 

which a party can assert a right. Hunt Steed v. Steed, 908 S.W.2d 581, 583 (Tex. App.–Fort 

Worth 1995, writ denied). The primary purpose of a statute of limitations is to compel the 

exercise of a right within a reasonable time so that the opposite party has a fair opportunity to 

defend while witnesses are available and the evidence is fresh in their minds. Cooper v. D & D 

G.C. of Gilmer, Inc., 187 S.W.3d 717, 720 (Tex. App.–Tyler 2006, no pet.).

Generally, if a note payable in installments is secured by a lien on real property, 

limitations for enforcement of the lien does not begin to run until the maturity date of the last 

installment. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.035(e) (West 2002). But if a note or 

deed of trust secured by real property contains an optional acceleration clause, the cause of 

 

1 The Landerses made this argument in their response to Nationstar’s summary judgment motion as well as 

in their own summary judgment motion.
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action for enforcement accrues when the holder exercises its option to accelerate. Holy Cross 

Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001) (nonjudicial foreclosure); 

Nat’l City Bank of Ind. v. Ortiz, 401 S.W.3d 867, 885-86 (Tex. App.–Houston [14th Dist.] 2013, 

pet. denied) (judicial foreclosure).

A person must bring suit for the recovery of real property under a real property lien or the 

foreclosure of a real property lien not later than four years after the day the cause of action 

accrues. TEX. CIV. PRAC. & REM. CODE ANN. § 16.035(a) (West 2002). Similarly, a sale of real 

property under a power of sale in a mortgage or deed of trust that creates a real property lien 

must be made not later than four years after the day the cause of action accrues. Id. § 16.035(b)

(West 2002); Holy Cross, 44 S.W.3d at 566.

When the four year limitations period expires, the real property lien and the power of sale 

to enforce the lien become void. TEX. CIV. PRAC. & REM. CODE ANN. § 16.035(d); Holy Cross, 

44 S.W.3d at 567. The running of limitations is tolled by statute in the event of the obligor’s 

death or a written, recorded agreement extending the maturity date of the debt or obligation. See 

TEX. CIV. PRAC. & REM. CODE ANN. § 16.035(c) (West 2002).

Effect of the Injunctions

In this case, the Landerses point out that neither the ex parte temporary restraining order 

nor the agreed temporary injunction prohibited Nationstar from filing suit for judicial 

foreclosure. Therefore, they contend that limitations was not tolled as to that cause of action and 

Nationstar’s suit was barred because it was not filed on or before November 9, 2013. Nationstar 

counters that because the ex parte temporary restraining order and agreed temporary injunction 

prohibited foreclosure, the limitations period was tolled for a total of forty-six days. Thus, 

according to Nationstar, its December 23, 2013 suit for judicial foreclosure was timely filed. 

Neither of the statutory tolling events has occurred here. See id. But Nationstar refers us 

to the general equitable rule that ―where a person is prevented from exercising his legal remedy 

by the pendency of legal proceedings, the time in which he is thus prevented should not be 

counted against him in determining whether limitations have barred his right.‖ Hughes v. 

Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex. 1991); Pioneer Bldg. & Loan Ass’n v. 

Johnston, 117 S.W.2d 556, 559 (Tex. Civ. App.–Waco 1938, writ dism’d). Under this rule, the 

court of appeals in Pioneer held that the statute of limitations for nonjudicial foreclosure was 

tolled during the time the lender was restrained by the trial court’s injunction from exercising the 
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power of sale in the deeds of trust. 117 S.W.2d at 559-60. The court observed, however, that the 

injunction restraining sale under the deeds of trust did not prevent a suit to recover on the debt 

and to foreclose the liens through the court. Id. at 559. Yet, the lender did not file a claim in the 

pending suit or file an independent suit to recover on its debt and foreclose through the court. Id.

Consequently, the limitations period for its debt and judicial foreclosure claims was not tolled by 

the injunction. Id. In reaching this conclusion, the court cited Davis v. Andrews, 88 Tex. 524 

(Tex. 1895).

In Davis, after the trustee advertised the property for sale under the deed of trust, the 

borrower obtained an injunction against such a sale. 88 Tex. at 526. More than four years later, 

the lender’s executors sought a judgment on the notes and foreclosure of the lien secured by the 

deed of trust. Id. The borrower pleaded the four year statute of limitations, but the trial court 

rendered judgment in favor of the executors. Id. The court of civil appeals affirmed the 

judgment, but the Texas Supreme Court set it aside. Id. at 527, 532. In its analysis, the supreme 

court acknowledged that in certain circumstances, equitable principles permitted the tolling of 

limitations during the time the prosecution of, or bringing suit on, a claim was enjoined. See id. 

at 527. But the court held that because the injunction had not prevented the executors from suing 

on the notes, equitable principles did not apply and there were no grounds to suspend the 

operation of the statute of limitations with regard to the lawsuit. Id. at 529. Thus, the injunction 

against the sale of property under the deed of trust did not toll the limitations period for suit on 

the notes and judicial foreclosure on the property. See id.

In this case, the injunctions prevented Nationstar from ―conducting a foreclosure sale or 

otherwise dispossessing [the Landerses] of their interest‖ in the subject property and then from 

―conducting a foreclosure sale‖ of the subject property. Neither injunction restrained Nationstar 

from filing suit for judicial foreclosure of its lien. Therefore, as in Davis and Pioneer, the 

limitations period for such a suit was not tolled, and it expired on November 9, 2013—four years 

after the acceleration of the debt, and prior to the filing of Nationstar’s suit on December 23, 

2013.

Quasi-Estoppel

Nationstar contends that even if the limitations period expired prior to the filing of its 

suit, quasi-estoppel prevents the Landerses from asserting their statute of limitations defense. 

Quasi-estoppel precludes a party, with knowledge of the facts, from taking a position 
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inconsistent with its former position to the disadvantage or injury of another. Steubner Realty 

19, Ltd. v. Cravens Rd. 88, Ltd., 817 S.W.2d 160, 164 (Tex. App.–Houston [14th Dist.] 1991, no 

writ). Nationstar argues that the Landerses’ current position that Nationstar could have filed its 

suit for judicial foreclosure during the periods of injunction is inconsistent with their previous 

position that the Landerses were entitled to injunctions against nonjudicial foreclosure. 

However, judicial foreclosure and nonjudicial foreclosure are distinct procedures, and injunction 

against one does not preclude proceeding under the other. See Davis, 88 Tex. at 529; Pioneer, 

117 S.W.2d at 559. Therefore, the Landerses’ positions are not inconsistent, and, further, did not 

disadvantage or injure Nationstar. Consequently, quasi-estoppel does not apply.

CONCLUSION

We hold that the Landerses’ summary judgment evidence conclusively establishes that 

Nationstar’s judicial foreclosure suit is barred by limitations. We further hold that the trial court 

erred by granting Nationstar’s summary judgment motion and denying the Landerses’ summary 

judgment motion. Therefore, we sustain the Landerses’ sole issue, reverse the judgment of the 

trial court, render summary judgment in favor of the Landerses on Nationstar’s judicial 

foreclosure claim, and remand for further proceedings on Nationstar’s rescission claim. See 

TEX. R. APP. P. 43.2(c).

JAMES T. WORTHEN

Chief Justice

Opinion delivered April 8, 2015.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

APRIL 8, 2015

NO. 12-14-00261-CV

KEN LANDERS AND CLARLINDA LANDERS,

Appellant

V.

NATIONSTAR MORTGAGE, LLC,

Appellee

Appeal from the 392nd District Court 

of Henderson County, Texas (Tr.Ct.No. 2013C-1185)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be reversed, that summary judgment be rendered in favor of Appellants, 

KEN LANDERS AND CLARLINDA LANDERS, on Appellee NATIONSTAR 

MORTGAGE, LLC’s judicial foreclosure claim, and that the cause be remanded for further 

proceedings in Nationstar’s rescission claim.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.