Affirmed and Memorandum Opinion filed March 7, 2023.

In The

Fourteenth Court of Appeals

NO. 14-21-00362-CV

1435 CRESCENT OAK TRUST, Appellant

V.

U.S. BANK N.A., AS TRUSTEE ON BEHALF OF THE HOLDERS OF THE 

J.P. MORGAN MORTGAGE ACQUISITION TRUST 2006-WMC4 ASSET 

BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-WMC4, 

THROUGH ITS MORTGAGE SERVICER, SELECT PORTFOLIO 

SERVICING, INC., Appellee

On Appeal from the 434th Judicial District Court

Fort Bend County, Texas

Trial Court Cause No. 16-DCV-237591

MEMORANDUM OPINION

Appellant 1435 Crescent Oak Trust appeals the trial court’s summary 

judgment in favor of appellee US Bank.1 Appellant raises one issue on appeal, that 

the trial court erred in granting summary judgment in favor of appellee. We affirm. 

1 Appellee’s full title is U.S. Bank, N.A., as Trustee on behalf of holders of the J.P. Morgan 

Mortgage Acquisition Trust 2006-WMC4 Asset Backed Pass-Through Certificates, Series 2006-
2

Appellant argues that the trial court erred in concluding that appellee 

abandoned its acceleration of the indebtedness because “the one piece of 

correspondence . . . does not prove abandonment as a matter of law” or 

“unequivocally manifest an intent to abandon the prior accelerations.” Appellant 

argues that because of this, a genuine issue of material fact exists as to appellee’s 

intent to abandon the prior acceleration. 

A. General Legal Principles

We review the trial court’s grant of a motion for summary judgment de novo. 

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 

2009). We take as true all evidence favorable to the non-movant and draw every 

reasonable inference and resolve all doubts in favor of the non-movant. M.D. 

Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23–24 (Tex. 2000) (per 

curiam). “A party moving for summary judgment must conclusively prove all 

elements of its cause of action or defense as a matter of law.” Holy Cross Church 

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

When a noteholder has accelerated a note, the holder can abandon acceleration 

if the holder continues to accept payments without exacting any remedies available 

to it upon declared maturity. Id.; see also Pitts v. Bank of N.Y. Mellon Tr. Co., 583 

S.W.3d 258, 262 (Tex. App.—Dallas 2018, no pet.). A lender may show 

abandonment by conduct. Pitts, 583 S.W.3d at 262; Khan v. GBAK Props., Inc., 371 

S.W.3d 347, 353 (Tex. App.—Houston [1st Dist.] 2012, no pet.). “A noteholder that 

has accelerated the maturity date of a loan may unilaterally abandon that acceleration 

and return the note to its original terms.” Pitts, 583 S.W.3d at 262. This may be 

done through notice to the borrower expressly stating the holder is abandoning 

WMC4, through its Mortgage Servicer, Select Portfolio Servicing, Inc., but will be referred to 

herein as either “appellee” or “US Bank.”
3

acceleration or through other conduct inconsistent with acceleration. Id. at 262–63 

(“[T]he supreme court has not addressed whether a holder establishes abandonment 

of acceleration as a matter of law when the borrower does not make any payments, 

the holder does not expressly abandon the earlier acceleration, and the only evidence 

of abandonment is the holder’s notice to a borrower that the amount currently due is 

less than the full accelerated balance.”). Abandonment has the effect of restoring 

the original maturity date of the note. Khan, 371 S.W.3d at 353.

“Whether a lender has abandoned an acceleration is generally a question of 

fact.” Swoboda v. Ocwen Loan Servicing, LLC, 579 S.W.3d 628, 633 (Tex. App.—

Houston [14th Dist.] 2019, no pet.). “But when the facts are admitted or clearly 

established, abandonment may sometimes be determined as a matter of law.” Id.; 

accord Bracken v. Wells Fargo Bank, N.A., No. 05-16-01334-CV, 2018 WL 

1026268, *5 (Tex. App.—Dallas Feb. 23, 2018, pet. denied) (mem. op.). 

B. Background 

Appellant is the owner of the real property located at 1435 Crescent Oak 

Drive, Missouri City, Texas (Property). The dispute in this case is whether appellee 

holds a valid lien on the Property. Appellee filed suit for a declaratory judgment 

that its lien on the Property is valid. Appellant counterclaimed, seeking a declaration 

that the statute of limitations had expired on appellee’s lien and seeking a declaration 

that such lien is void. Appellant’s claims are premised on the argument that in 

September 2012, appellee accelerated the indebtedness and maturity of the note at 

issue and had not proceeded to foreclosure on or before the four-year statute of 

limitations had expired. Because the statute of limitations had run in September 

2016 and appellee had not proceeded to foreclosure, appellant contends that the lien 

on the Property is invalid. Appellee argued that it has a valid lien on the Property 

because it abandoned its prior acceleration and the original maturity date of the note 
4

was reimplemented, precluding the statute of limitations from expiring in 2016. 

Appellee filed a motion for summary judgment arguing that as a matter of 

law, appellee abandoned its prior acceleration through a letter dated May 16, 2014

(May Letter). The May Letter indicates that it “provides notice” that there has been 

a default in payments under the note and security instrument, and the letter is a 

formal demand for payment. “To cure this default, you must pay the Amount 

Required to Cure together with payment which may subsequently become due, on 

or before the Cure Date.” The May Letter further provides that “the total amount 

due and required to cure the default on your loan is $111,272.37 (Amount Required 

to Cure).” Finally, the May Letter states that if the borrower failed to cure the 

default, the noteholder “will accelerate all payments owing on your Note and require 

that you pay all payments owing and sums secured by the Security Instrument in 

full.”

The trial court granted summary judgment in favor of appellee, concluding 

that appellee had conclusively shown abandonment of its prior acceleration of the 

indebtedness and, therefore, held a valid lien on the Property. This appeal followed. 

C. Analysis 

Appellant argues the evidence “demonstrates a genuine issue of material fact 

on [appellee’s] intent to abandon the prior acceleration.” First, appellant contends 

that the May Letter is not an “unequivocal abandonment” of acceleration and a 

“reasonable person . . . would just as easily conclude it was a reminder of their right 

to reinstate before a foreclosure sale as it was some kind of abandonment of the prior 

acceleration.” This is so, appellant argues, because section nineteen of the deed of 

trust “allows the borrower to reinstate the Loan five days before a foreclosure sale 

by paying less than the fully accelerated amount.” We disagree with appellant’s 

contentions.
5

In a section entitled “Your Rights,” the May Letter indicates that the borrower 

has the right to reinstate the loan “even after foreclosure has been initiated and prior 

to sale.” It goes on to state that if foreclosure has been initiated, then any 

reinstatement amounts must be paid in certified funds. The letter does not indicate 

whether or not foreclosure has been initiated, simply that even if foreclosure has 

been initiated that it could be stopped by paying the reinstatement amount as 

provided under the terms of the contract between the borrower and appellee. 

We further conclude that the cases cited by appellant are distinguishable. See 

Colbert v. Wells Fargo Bank, N.A., 850 F. App’x 870, 875 (5th Cir. 2021); Lyons v. 

Select Portfolio Servicing, Inc., 748 F. App’x 610, 611–12 (5th Cir. 2019). In Lyons, 

after accelerating, the lender sent a reinstatement notice informing the borrower that 

payment of an amount less than the fully accelerated amount could return the loan 

to its pre-acceleration status. Lyons, 748 F. App’x at 611. In Colbert the lender sent 

a notice of acceleration, then sent a regular monthly statement requesting payment 

for less than the full amount of the accelerated loan only four days later. Colbert, 

850 F. App’x at 875. The courts in both Lyons and Colbert concluded that the later 

notices sent by the lenders did not establish a clear intent to abandon acceleration. 

Colbert, 850 F. App’x at 875; Lyons, 748 F. App’x at 612. In both cases it was the 

borrower arguing, post-foreclosure, that the lender had abandoned acceleration and 

wrongfully foreclosed. Colbert, 850 F. App’x at 875–76; Lyons, 748 F. App’x at 

611–12.

Here, the May Letter is entitled “Demand letter – Notice of Default,” detailed 

the amount needed to cure the default (which is undisputedly less than the full 

acceleration amount), and indicated if the amount needed to cure was not received 

then the “Noteholder will accelerate all payments owing on your Note and require 

that you pay all payments owing and sums secured by the Security Instrument in 

full.” The letter demonstrates appellee’s willingness to accept less than the fully 
6

accelerated balance and failure to make such payment would result in acceleration 

at a time in the future. This shows a clear departure from the prior acceleration and 

abandonment of the prior acceleration in favor of either a cure payment or 

acceleration at some future date. See Laguette v. U.S. Bank, N.A., No. 03-19-00042-

CV, 2020 WL 1908314, *3 (Tex. App.—Austin Apr. 17, 2020, no pet.) (mem. op.)

(letter to debtor demanding payment of missed payments and other fees and stating 

that the “mortgage payments will be accelerated” if unpaid conclusively established 

lender’s intent to abandon prior acceleration); Farmehr v. Deutsche Bank Nat’l Trust 

Co., No. 05-17-00563-CV, 2018 WL 2749634, *3 (Tex. App.—Dallas May 31, 

2018, no pet.) (mem. op.) (lender conclusively established abandonment of 

acceleration by letter entitled “DEMAND LETTER—NOTICE OF DEFAULT” 

stating that (1) the borrowers were in default; (2) the default could be cured by 

paying the past-due amounts, late charges, and advance within thirty days; and (3) 

the lender would accelerate the note if the borrowers did not pay the cure amount); 

Brannick v. Aurora Loan Servs., LLC, No. 03-17-00308-CV, 2018 WL 5729104, *3 

(Tex. App.—Austin Nov. 2, 2018, pet. denied) (mem. op.) (demand for payment of 

amount less than the entire accelerated amount and stating that failure to pay would 

result in acceleration conclusively established abandonment of acceleration); 

Emmert v. Wilmington Savs. Fund Society, FSB, No. 02-17-00119-CV, 2018 WL 

1005002, *3 (Tex. App.—Fort Worth Feb. 22. 2018, no pet.) (mem. op.) (same); 

NSL Prop. Holdings, LLC v. Nationstar Mortg., LLC, No. 02-16-00397-CV, 2017 

WL 3526352, *3 (Tex. App.—Fort Worth Aug. 17, 2017, pet. denied) (mem. op.) 

(same). 

Appellant argues that this case is distinguishable because after the May Letter, 

appellee sent another letter to the borrower that evidences a lack of intent to abandon 

acceleration. The August 2014 letter was sent pursuant to the Federal Debt

Collection Practices Act (FDCPA Letter). Appellant argues that the FDCPA Letter 
7

“demands” payment of the fully accelerated amount and, as a result, indicates that 

appellee did not abandon the acceleration. We disagree. 

The FDCPA Letter in entitled “NOTICE REQUIRED BY THE FEDERAL 

FAIR DEBT COLLECTION PRACTICES ACT, 15 U.S.C. SECTION 1692, et 

seq.” and indicates that “[a]s of August 22, 2014, our client has advised that the 

amount of the debt is $438,695.76.” The FDCPA Letter states that the “amount on 

this notice should not be used as a payoff figure. If you would like to receive a 

payoff and/or reinstatement figure please submit a written request . . . .” 

The FDCPA Letter does not demand payment and instead merely indicates 

the amount of the debt owed.

2

 Appellant does not cite to any case law that supports 

its argument that an “amount owed” in an FDCPA required communication is 

evidence of acceleration of an indebtedness. Instead, appellant argues that a 

“reasonable juror . . . could determine that a reasonable person in the borrower’s 

shoes would not think the effect of their prior failure to cure was to be disregarded.” 

However, when determining whether waiver occurred, we examine the intention of 

the lender to relinquish a known right, not whether the debtor understood that 

intention. See Pitts, 583 S.W.3d at 262 (listing elements of waiver, including “the 

party’s actual intent to relinquish the right, or intentional conduct inconsistent with 

the right”); see also Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 

2008) (listing elements of waiver). 

Appellant next argues that the anti-waiver provision contained in the deed of 

trust indicates a lack of intent to abandon the acceleration:

Any forbearance by Lender in exercising any right or remedy including, 

2

“The term ‘debt’ means any obligation or alleged obligation of a consumer to pay money 

arising out of a transaction in which the money, property, insurance, or services which are the 

subject of the transaction are primarily for personal, family, or household purposes, whether or not 

such obligation has been reduced to judgment.” 15 U.S.C. § 1692a (5). 
8

without limitation, Lender’s acceptance of payments from third 

persons, entities or Successors in Interest of Borrower or in amounts 

less than the amount then due, shall not be a waiver of or preclude the 

exercise of any right or remedy.

Appellant argues our sister court applied a substantially similar waiver clause and 

concluded that the lender did not conclusively establish abandonment. See Hardy v. 

Wells Fargo Bank, N.A., No. 01-12-00945-CV, 2014 WL 7473762, *5 (Tex. App.—

Houston [1st Dist.] Dec. 30, 2014, no pet.) (mem. op.). 

In Hardy, the parties entered into two agreements after the borrowers had 

defaulted. In the agreements, the borrowers acknowledged the default in payment

on the original indebtedness and agreed to pay the indebtedness in installment 

payments over a period. Id. at *2. The agreements also provided that the lender’s 

acceptance of any payments “will not be deemed to affect the acceleration of the 

Note and/or Mortgage in the event of default under the terms of this agreement.” Id. 

It was undisputed that the borrowers made some payments but defaulted again. Id. 

The lender argued that it abandoned acceleration through the agreements and by 

accepting partial payments pursuant to such agreements, despite the “anti-waiver” 

language within the agreements. See id. The court concluded that because of the 

anti-waiver provision within the agreements, the lender did not establish its right to 

summary judgment as a matter of law and there was a fact issue as to whether the 

lender abandoned acceleration. Id. at *5. 

Our sister court recently noted Hardy “does not stand for the proposition that 

anti-waiver provisions preclude abandonment of prior accelerations.” PHH 

Mortgage Corp. v. Aston, No. 01-21-00057-CV, 2022 WL 3363196, *7 (Tex. 

App.—Houston [1st Dist.] Aug. 16, 2022, pet. denied) (mem. op.). Here, unlike the 

agreements in Hardy, the May Letter has no language within it regarding “antiwaiver” of the prior acceleration of the indebtedness and is, therefore, 
9

distinguishable. We also recently considered and rejected the argument that a 

provision within the deed of trust prevents the lender from abandoning acceleration. 

See Citibank, N.A. v. Pechua, Inc., 624 S.W.3d 633 (Tex. App.—Houston [14th 

Dist.] 2021, pet. denied) (“Contrary to Pechua’s assertion, this clause does not 

prohibit the Bank from abandoning a prior acceleration. The abandonment of a 

specific event of acceleration and the waiver of the right to accelerate and foreclose 

are distinct concepts.”).

We overrule appellant’s sole issue.3

CONCLUSION

Having overruled appellant’s sole issue, we affirm the judgment of the trial 

court. 

/s/ Ken Wise

Justice

Panel consists of Justices Wise, Poissant, and Wilson.

3 Appellant also makes arguments that appellee wrongly asserts that the trial court 

dismissed appellant’s statute of limitations claim regarding the lien and that appellee made a 

“prima facie” case that limitations had expired. Appellant does not argue that trial court erred in 

denying its summary judgment motion. We need not address these sub-points because even 

assuming them to be true, they do not change the disposition on appeal. See Tex. R. App. P. 47.1.