United States Court of Appeals

for 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 

Castrellon, 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 Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 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: 07/12/2021
No. 20-40534

2

her husband that same day in executing a security instrument 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, after 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 sued 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 then was applied to the loan. 

Shortly 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: 07/12/2021
No. 20-40534

3

The loan servicer 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 Original Complaint 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 TEX. CIV. PRAC. & REM. CODE § 16.035(a)). Where, 

as here, there is an option to accelerate, “the action accrues ‘when the holder 

actually exercises its option to accelerate.’” 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 district court was wrong to 

grant partial summary judgment to the Bank, as she contends its April 2019 

complaint seeking non-judicial foreclosure is time barred.

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

4

The Bank’s primary argument is that it abandoned its original

acceleration by entering into a settlement 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, the district court accepted 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 TEX.R.CIV. 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 Bank’s action accrued at the earliest on October 17, 2012, 

when it accelerated the loan. The 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 19, 2019, 

Case: 20-40534 Document: 00515933324 Page: 4 Date Filed: 07/12/2021
No. 20-40534

5

after having noticed acceleration several months earlier, its claim for nonjudicial 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 2015 

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