## NUMBER 13
- 17
- 00607
- CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
- EDINBURG

SETH RIVERA , Appellant,

v. BAPTIST FOUNDATION OF TEXAS , Appellee.

On appeal from the 404th District Court o f Cameron County, Texas.



## MEMORA N DUM OPINION ON REHEARING

Before Chief Justice Contreras and Justices Benavides and Ya ñ ez 1 

### Memorandum Opinion by Justice Ya ñ ez Appellant Seth Rivera appeal s the trial court’s judgment , following a bench trial, in

1 Retired Thirteenth Court of Appeals J ustice Linda Ya ñ ez , assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. See T EX

. G OV ’ T C ODE A NN

. § 74.003.2 favor of appellee Baptist Foundation of Texas (Baptist Foundation) . By his sole issue,
Rivera contends the trial court erred in ruling that the statute of limitations period had not
run for the collection and foreclosure of real estate. We affirm. 2
I. B ACKGROUND Rivera purchased real property from the Verbeek family in 1999. He made monthly lien note payments pursuant to the terms of their agreement. Rivera made his last payment on December 14, 2007. On or about April 23, 2008, Verbeek’s attorney sent
Rivera a “ Demand for Payment ” which included an optional acceleration clause . V erbeek
did not foreclose on the lien

. Subsequently, Baptist Foundation inherited Verbeek’s interest in the property

. On or about February 9, 2016, Baptist Foundation sent Rivera a n otice of f oreclosure and

n otice of s ubstitute t rustee s ale for the property. Rivera sued Baptist Foundation, seeking to enjoin Baptist Foundation from foreclosing. Baptist Foundation answered and filed a
counterclaim. Ri v era filed a motion for summary judgmen t arguing th at because demand for payment was made in April 2008, the applicable four

- year statute of limitations barred Baptist Foundation from foreclosing on the property eight years later , which the trial court
denied. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 16.035(a). On September 18 , 2017 , 3
t he trial court held a bench trial a nd determined that the “Demand for Payment” was not
an acceleration letter and therefore the statute of limitations had not run. The trial court

2 Rivera filed a motion for rehearing on August 12, 2019. See T EX

. R. A PP

. P . 49.1. We requested an d received a response from Baptist Foundation. After due consideration, we withdraw our previous memorandum opinion and judgment and substitute the following memorandum opinion and accompanying judgment. Rivera’s motion for rehearing is denied.

3 In t heir briefs, b oth parties assert that a bench trial took place on September 1 6 , 2016; however, the record reflects that a bench trial took place almost one year later on September 18, 2017.3 entered a final judgm ent in favor of Baptist Foundation on October 4, 2017 , and t his appeal followed.
II. L EGAL S UFFICIENCY By his sole issue, Rivera argues the trial court erred by ruling as a matter of law
that the statute of limitations had not run for the collection and foreclosure of the property

. 4
A. Standard of Review 5 Limitations is an affirmative defense, which Rivera bore the burden to prove. See
T EX

. R. C IV

. P. 94; Woods v. William M. Mercer, Inc ., 769 S.W.2d 515, 517 (Tex. 1988). “When a party a ttacks the legal sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue.” Dow Chem. Co. v.
Francis , 46 S.W.3d 237, 241 (Tex. 2001) (per curiam) . In other words, the appellant must show that there is no evidence to support the finding and the evidence conclusively establishes the opposite of the finding. Id . We first examine the record for any evidence

su pporting the finding while ignoring all evidence to the contrary. Id . If no evidence supports the finding, then we review the entire record to determine whether the contrary proposition is established as a matter of law. Id

. When examining a legal suff iciency challenge, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson , 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a rea sonable fact

4 Rivera states “the trial judge erred by ruling as a matter o f law that the statute of limitations had not run for the collection and foreclosure” of the notes. Rivera does not cite to a standard of review ; therefore, we construe his argument as a challenge to the legal sufficiency of the evidence to support the tr ial court’s judgment. See Dow Chem. Co. v. Francis , 46 S.W.3d 237, 241 (Tex. 2001) (per curiam)

.

5 Although the parties do not include a standard of review in their briefs, we will apply the standard of review for a n “as a matter of law” legal sufficiency challenge. See id.4 finder could and disregard contrary evidence unless a reasonable fact finder could not.
Id . at 827.
B. Applicable Law A foreclosure suit must be filed within four years after the cause of action accrues.
T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 1 6.035(a). A cause of action for foreclosure does not accrue “until the maturity date of the last note, obligation, or installment.” Id

. § 16.035(e). “On the expiration of the four

- year limitations period, the real property lien and a power of sale to e nforce the real property lien become void.” Id . § 16.035(d). “While accrual is a legal question, whether a lender has accelerated a note is a fact question.” Holy Cross Church of God in Christ v. Wolf , 44 S.W.3d 562, 568 (Tex. 2001). If a note contains an optional acceleration clause, defaulting on the note does not automatically begin the statute of limitations. Id. at 566. Rather, the statute of limitations does not start
to run until the lender o f the note actually exercises its option to accelerate. Id

. “Effective acceleration requires two acts: (1) notice of intent to accelerate, and (2)
notice of acceleration.” Id . Each notice must be “clear and unequivocal.” Id . (quoting Shumway v. Horizon Credit Corp. , 801 S.W.2d 890, 893 (Tex. 1991)). The lender must
exercise its option to accelerate “by sending both a notice of intent to accelerate and a
notice of acceleration.” Id. “If the default has not been cured by the deadline established in the notice, the lender must then give notice of acceleration.” Karam v. Brown , 407 S.W.3d 464, 470 (Tex. App

— El Paso 2013, no pet.). “So long as it is preceded by the required notice of intent to accelerate, notice of a trustee’s sale cons titutes unequivocal action indicating the debt is accelerated.” Id

. C. Discussion5 The trial court admitted into evidence the “Demand for Payment” notice that Verbeek’s attorney sent Rivera on April 23, 2008

. In relevant part, the notice provided
the f ollowing: In the event that the past due and owing amount has not been brought current by [5:00 p.m. on Tuesday, May 13, 2008], the principal balance due and owing on the note will be accelerated and I have been instructed to commence proceedings to for eclose on the property under the Deed of Trust lien. Rivera argues that this language accelerated the note and thus triggered the four

- year limitations period because it was both an unequivocal (1) notice of intent to accelerate
and (2) notice of accelera tion

. We disagree. In Holy Cross , the Texas Supreme Court
held that both notice of intent to accelerate and notice of acceleration were clear and unequivocal whe re the summary judgment evidence contained a deed with an optional acceleration clause, a notice of intent, and a notice of acceleration. See 44 S.W.3d at
568

– 69. The Court held that when a holder provides an optional acceleration clause, the running of limitations only accrues when the holder “actually exe rcises” its option to
accelerat e. Id

. at 566. In this case, Baptist Foundation did not “actually exercise” its option to accelerate

. See id . Rather , Baptist Foundation merely provided notice of i ntent to a ccelerate and the option to cure

. In fact, in his brief, Rivera acknowledges that Verbeek sent Rivera a “Demand for Payment and Notice of Intent to Accelerate on or about April 23, 2008.” Furthermore, t h e language within the notice was clear and unequivocal: if payment is not made, the balance will be accelerated

. 6 Accordingly, the notice of intent to accelerate

6 The trial court stated that the language should have read “I hereby acceler ate” if, indeed, it was to serve as notice of acceleration rather than notice of intent to accelerate, and we agree.6 fulfilled only the first step of effective acceleration and did not trigger the limitations period.
See id. ; Karam , 407 S.W.3d at 470 ( holding that by providing the debtor with notice of foreclosure four days after providing her with notice of intent to accelerate, the lender unequivocally indicated that the debt had been accelerated) ; Burney v. Citigroup Global Markets Realty Corp. , 244 S.W.3d 900, 904 (Tex. App.

— Dallas 2008, no pet.) (holding that notice of filing an expedited application for foreclosure after the requisite notice of intent to accelerate is sufficient to constitute notice of acceleration); Meadowbrook Gardens, Ltd. v. WM FMT Real Estate Ltd. P’ship , 980 S.W.2d 916, 919 (Tex. App.

— Fort Worth 1998, pet. denied) (holding that notice of intent to accelerate coupled with notice of foreclosure sale amounted to notice of acceleration); McLemore v. Pacific Sw. Bank,
FSB , 872 S.W.2 d 286, 292

– 93 (Tex. App.

— Texarkana 1994, writ dism’d) (holding that notice of intent to accelerate followed by notice of trustee’s sale constitutes notice of acceleration). Accordingly , we conclude that the evidence establishes, as a matter of law
that th e “Demand for Payment” did not accelerate the notes and therefore did not automatically trigger the statute of limitations. See City of Keller, 168 S.W.3d 802

. W e
overrule Rivera’s sole issue. 7
I II

. C ONCLUSION
We affirm the trial court’s judgment.

7 In his motion for rehearing, Rivera argues that he waived notice of intent to accelerate and notice of acceleration. However, Rivera did not make this argument in his initial brief and thus waived this argument on appeal. Rivera’s sole issue on appeal was that the “Demand for Payment” effectively accelerated the notes. Rivera cannot use his motion for rehearing to raise new issues on appeal. See Phifer v. Nacogdoches Cty

. Cent. Appraisal Dist. , 45 S.W.3d 159, 166 (Tex. App.

— Tyler 2000, pet. denied)

. (holding that a motion for rehearing does not afford an appellant the o pportunity to raise new issues on appeal).7 LINDA Y A ÑEZ
, Justice

Delivered and filed the 9th day of January , 20 20

.