United States Court of Appeals

for the Fifth Circuit ____________

No. 22-20138

____________

Linda Moore; Thomas Moore, Jr., 

Plaintiffs—Appellants,

versus

Wells Fargo Bank, National Association, as trustee for

MASTR Asset Backed Securities Trust 2004-OPT2, 

Mortgage Pass-Through Certificates; PHH Mortgage 

Corporation, 

Defendants—Appellees.

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:20-CV-3299

______________________________

Before Graves, Ho, and Duncan, Circuit Judges.

Per Curiam:*

Texas law imposes a four-year limitations period on real property 

liens. Tex. Civ. Prac. & Rem. Code § 16.035. Where a note or deed 

of trust secured by a real property lien contains an optional acceleration 

clause, the lender must bring a foreclosure suit within four years of exercising 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

July 7, 2023

Lyle W. Cayce

Clerk

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No. 22-20138

2

its right to accelerate. See Holy Cross Church of God in Christ v. Wolf, 44 

S.W.3d 562, 566–67 (Tex. 2001). The lender can also rescind the 

acceleration before the limitations period expires, which restores the deed to 

its original condition “as if no acceleration had occurred.” Tex. Civ. 

Prac. & Rem. Code § 16.038(a). The lender may then accelerate the 

maturity date of the loan again in the future. See id. § 16.038(d).

But what happens if a lender tries to simultaneously rescind a prior 

acceleration and re-accelerate? Is that valid? If not, are both the rescission 

and the re-acceleration void? Or just the re-acceleration? Section 16.038 

does not say.

We believe this dispute presents pure questions of law that “should 

be answered by the only court that can issue a precedential ruling that will 

benefit all future litigants, whether in state or federal court.” JCB, Inc. v. 

Horsburgh & Scott Co., 912 F.3d 238, 239 (5th Cir. 2018). Accordingly, we 

certify two questions to the Supreme Court of Texas.

I.

On May 27, 2004, Plaintiffs Linda Moore and Thomas Moore

obtained a $170,700 loan—secured by their property in Sugar Land, Texas—

from Option One Mortgage Corporation. Option One assigned the loan to 

Wells Fargo. PHH Mortgage Corporation services the loan. The deed of 

trust that memorialized this transaction contained an optional acceleration 

clause, which gave Wells Fargo and PHH (the “Lenders”) the right to 

demand full repayment of the loan if the Moores fell behind in their monthly 

payments. 

The Moores indeed fell behind on their monthly payments. They 

agreed to a loan workout plan with Wells Fargo, but they again fell behind.

This led to a Loan Modification Agreement. The Moores still failed to make 

their payments. So PHH sent them a notice of default in October 2015, 

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requesting a delinquent amount of $6,988.05. This letter also expressed the 

Lenders’ intent to accelerate the loan. On February 2, 2016, the Lenders sent 

the Moores a notice of acceleration. The parties agree that the four-year 

limitations period to foreclose under § 16.035 began to accrue on this date. 

After sending the initial notice of acceleration, the Lenders sent 

similar notices on October 6, 2016, November 2, 2016, January 13, 2017, 

March 8, 2017, and March 5, 2019. Each notice included language expressly 

rescinding prior acceleration notices: “The Servicer hereby rescinds all prior 

acceleration notices.” And each notice purported to re-accelerate the 

maturity date of the loan.

On August 12, 2020, the Moores filed suit in state court for a 

declaratory judgment that the four-year limitations period had run on Wells 

Fargo’s ability to foreclose. The Lenders removed to federal court and 

moved for summary judgment, which the district court granted. The district 

court held that the Lenders had abandoned their February 2016 acceleration 

of the loan by sending multiple notices requesting less than the full balance 

of the loan, and that they otherwise rescinded the acceleration under §

16.038. 

II.

The parties disagree on whether the Lenders timely rescinded the 

February 2016 acceleration. 

A lienholder can rescind a prior acceleration by sending a “written 

notice” of rescission to the borrower’s “last known address” by “first class 

or certified mail.” Tex. Civ. Prac. & Rem. Code § 16.038(b)–(c). 

Rescission “does not affect a lienholder’s right to accelerate the maturity 

date of the debt in the future nor does it waive past defaults.” Id. § 16.038(d).

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The Lenders argue that they satisfied § 16.038’s requirements for 

rescission by sending multiple written notices of rescission to the Moores. 

The Moores argue that § 16.038 doesn’t apply because the Lenders 

impermissibly attempted to simultaneously rescind the acceleration and reaccelerate the loan.

The Moores point to a holding from this court that “re-notice is 

required after acceleration is rescinded.” Wilmington Trust v. Rob, 891 F.3d 

174, 177 (5th Cir. 2018). As with initial acceleration, re-acceleration requires 

first a notice of intent to accelerate, followed by a notice of acceleration. See 

id. at 176–77. Thus, the Moores argue, a lender can’t rescind and reaccelerate simultaneously because Texas law “imposes notice requirements 

before acceleration.” Id. at 176 (emphasis added).

But Wilmington Trust—which was not a statute of limitations case—

does not control. It only concerned re-acceleration, not rescission. This 

case, by contrast, is about whether the Lenders properly and timely rescinded

their initial acceleration, since that would have reset the applicable 

limitations period. So although the Lenders’ re-acceleration of the loan is

likely void under Wilmington Trust—since simultaneous rescission and reacceleration by definition lacks a re-notice of intent to accelerate—that case 

doesn’t tell us whether the Lenders’rescission of the initial acceleration is also 

void.

But even so, Wilmington Trust casts into doubt whether the Lenders 

effectively rescinded. There’s no way to tell if the Lenders intended to 

rescind the initial acceleration without being able to also re-accelerate at the 

same time. Arguably, rescission was merely a necessary antecedent to the 

Lenders’ primary goal of re-acceleration. 

By contrast, a Texas intermediate appellate court recently blessed

simultaneous rescission and re-acceleration. See PHH Mortgage Corp. v. 

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Aston, No. 01-21-00057-CV, 2022 WL 3363196 (Tex. App.—Houston [1st 

Dist.] Aug. 16, 2022, pet. denied). And it addressed and rejected the same 

arguments that the Moores presented to this court. See id. at *4–5.

So under Aston, the Lenders properly rescinded and re-accelerated. 

But under Wilmington Trust, the Lenders could not have re-accelerated and 

arguably did not rescind the initial acceleration.

Certification is advisable here. As the Aston court acknowledged, 

“Section 16.038 is silent as to whether any time must pass between a 

rescission and a re-acceleration.” 2022 WL 3363196, at *4. And the parties 

do not point to any meaningful authority besides Aston and Wilmington Trust.

III.

We hereby certify the following questions of law to the Supreme Court 

of Texas:

(1) May a lender simultaneously rescind a prior acceleration 

and re-accelerate a loan under Tex. Civ. Prac. & Rem. 

Code § 16.038?

(2) If a lender cannot simultaneously rescind a prior 

acceleration and re-accelerate a loan, does such an attempt void 

only the re-acceleration, or both the re-acceleration and the 

rescission?

We disclaim any intention or desire that the Supreme Court of Texas 

confine its reply to the precise form or scope of the question certified.

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