# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 40534

**Deutsche Bank National Trust Company as Trustee for Soundview Home Loan Trust 2006** 

**- Eql Asset** 

**- Backed**  **Certificates, Series 2006**

**- Eql,** 

Plaintiff

— Appellee **,**

versus

**Gloria Castrellon,**

Defendant

— Appellant

**.**

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:19

- CV

- 150

Before **Higginbotham, Jones,** and **Costa,** Circuit Judges

**. Per Curiam**  **:** *
On June 30, 2006, Gloria Castrellon’s then

- husband, Jesus
Castrel l on , executed a Texas Home Equity Note (“Note”) secured by the couple’s home. Although Ms. Castrellon did not sign the Note, she joined

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED July 12, 2021
Lyle W. Cayce Clerk Case: 20-40534 Document: 00515933324 Page: 1 Date Filed: 07/12/2021No. 20

- 40534

2 her husband that same day in executing a security inst rument that secured payment of the Note with a lien on the couple’s home. 1

Around July 2012, the Castrellons stopped making payments on the

Note

. The bank ’s loan servicer notified the Castrellons on October 17, 2012,
that the loan had been accelerated. By December 2013 they had missed 18
payments. On December 27, 2013, a fter various notifications from the parties in interest, Deutsche Bank (the Bank)

— which had been assigned the security instrument and the Note in 2009

— filed a Home Equity Foreclosure Application pursuant to Texas Rule of Civil Procedure 736

. The Bank was granted a final order that allowed it to proceed with foreclosure on November 5, 2014

. In a bid to stop the sale, Ms. Castrellon sue d the Bank on January 5 , 2015 , which automatically stayed the sale pursuant to Texas Rule of Civil
Procedure 736.11(a). After the suit was removed to the Southern District of Texas, the parties reached a settlement and modification agreement that
included a $3,990.55 immediate “down payment” from Ms. Castrellon,
which the n was applied to the loan

.
S hortly thereafter, Deutsche Bank claimed that the settlement was void, because Mr. Castrellon , not Ms. Castrellon , was the actual and sole obligor on the Note , and it contended the proposed modification was therefore not possible

. Castrellon v. Ocwen Loan Servicing, L.L.C. , 721 Fed. Appx. 346 (5th Cir. 2018). Ms. Castrellon attempted to enforce the agreement and litigation ensued. A panel of this circuit remanded for further proceedings ; and back in the district court , the parties ultimately agreed to a dismissal without prejudice , July 12, 2018

.

1 The Castrellons divorced sometime in 2015. Case: 20-40534 Document: 00515933324 Page: 2 Date Filed: 07/12/2021No. 20

- 40534

3 The loan servic er resumed sending monthly notices to Mr. Castrellon
that payments were due. In March of 2019, Mr. Castrellon was served with Notice of Default and Intent to Accelerate. The Castrellons were given thirty days to pay $303,379.36 or face acceleration.

On April 19, 2019, Deutsche Bank filed its O riginal C omplaint seeking
an order for non

- judicial foreclosure pursuant to the terms of the loan agreement and Texas Property Code Section 51.002 , and in the alternative judicial foreclosure

. The parties cross

- filed for summary judgement. The district court entered default judgment against Mr. Castrellon, partial summary judgment against Ms. Castrellon, and a final order dismissing all
other claims on July 15, 2020. Only Ms. Castrellon has appealed.

We review the grant of summary judgement de novo

. In re CPDC, Inc. , 337 F.3d 436, 441 (5th Cir. 2003).
Under Texas law, “ a secured lender “ must bring suit for

. . . the foreclosure of a real property lien not later than four years after the day the
cause of action accrues.” Boren v. U.S. Nat ’l Bank Ass ’ n , 807 F.3d 99, 104 (5th Cir. 2015) (citing T EX

. C IV

. P RAC

. & R EM

. C ODE § 16.035(a) ). Where, as here, there is an option to accelerate, “ the action accrues ‘ when the holder actually exercises its option to accelerat e. ’ ” Id. (citing Holy Cross Church of God in Christ v. Wolf , 44 S.W.3d 562, 566 (Tex. 2001) )

. However, under Texas common law, “[w] here a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during 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) (internal quotations omitted).
On appeal, Ms. Castrellon argues that the d istrict court was wrong to grant partial summary judgment to the Bank , as she contend s its April 2019 complaint seeking non

- judicial foreclosure is time barred

. Case: 20-40534 Document: 00515933324 Page: 3 Date Filed: 07/12/2021No. 20

- 40534

4 The Bank ’s primary argument is that it abandoned its original acceleration by entering into a s ettlement agreement, accepting a down payment from Ms. Castrellon, and foregoing remedies it had a legal right to

pursue . The district court was not persuaded, noting the conflicting facts on the question of abandonment. Instead, t he district court accep ted Deutsche
Bank ’s secondary theory

— that Ms. Castrellon’s separate suit tolled the

statute of limitations as to the Bank’s foreclosure effort

. It is on this narrow basis that we affirm.

Deutsche Bank was in the process of foreclosing in 2015 when

Ms. Castrellon filed a suit pursuant to Texas Rule of Civil Procedure 736.11(a), thus triggering the automatic stay under that rule. This litigation

course effectively blocked the Bank from exercising foreclosure for the duration of that dispute. See T EX

. R. C IV

. P. 736.11(d) (“ If the automatic stay under this rule is in effect, any foreclosure sale of the property is void. ”). Therefore, Ms. Castrellon’s successful check on Deutsche Bank ’s ability to proceed also tolled the statute of limitations.

Deutsche Ba nk ’s action accrued at the earliest on October 17, 2012 , when it accelerated the loan . T he statute of limitations was tolled from January 5, 2015 , when Ms. Castrellon filed her separate suit to block
foreclosure , to July 12, 2018 , when the parties agreed to a dismissal without prejudice. The more than three years ’ pendency of that suit postponed to April 23, 2020 , the date the statute of limitations would have expired

. Because Deutsche Bank filed the instant suit to foreclose on April 1 9, 2019, Case: 20-40534 Document: 00515933324 Page: 4 Date Filed: 07/12/2021No. 20

- 40534

5 after having noticed acceleration several months earlier, its claim for non

judicial foreclosure was timely. 2
For the foregoing reasons, the judgment of the district court is

AFFIRMED.

2 The court additionally held that, “Ms. Castrellon’s maintenance of the 20 15 action did not prevent [the Bank] from seeking judicial foreclosure, and tolling cannot render this claim timely.” In light of the above discussion, we do not address this holding. Case: 20-40534 Document: 00515933324 Page: 5 Date Filed: 07/12/2021