IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-10938

Summary Calendar

RYAN LEE LYONS; CRYSTAL LYNETTE LYONS, 

 Plaintiffs - Appellants

v.

SELECT PORTFOLIO SERVICING INCORPORATED; DEUTSCHE BANK 

NATIONAL TRUST COMPANY, as Trustee, in Trust for Registered Holders 

of Long Beach Mortgage Loan Trust 2006-WL1, Asset-Backed Certificates, 

Series 2006-WL1, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:17-CV-3380

Before DAVIS, HAYNES, and GRAVES, Circuit Judges.

PER CURIAM:*

Ryan and Crystal Lyons stopped paying their mortgage and the 

mortgagee, represented by Select Portfolio Servicing Inc., subsequently 

foreclosed. (For simplicity, we call the mortgagee and Select Portfolio Servicing 

 

* Pursuant to 5TH CIR. R. 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. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 17, 2019

Lyle W. Cayce

Clerk

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No. 18-10938

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Inc. collectively “the Bank.”) The Lyonses sued, asserting that the Bank

abandoned any attempt to accelerate the balance due on their loan. We 

disagree and AFFIRM the district court’s judgment.

The Lyonses purchased a home in 2005, executing a deed of trust and

note for $194,846.00 to finance the purchase. Sometime after, they stopped 

making payments on the note. 

In November 2015, the Bank sent three communications to the Lyonses. 

The first was a notice of acceleration. It informed the Lyonses that the Bank 

was accelerating “all sums due under the Note,” which the Bank was entitled 

to do under the terms of the note and deed of trust. The notice also told the 

Lyonses that the Bank had scheduled a foreclosure sale of the home for 

December 1st.

Two days later, the Bank sent a typical mortgage statement. The 

statement included a disclaimer that it was “not an attempt to collect a debt” 

and was “sent for informational purposes only.” As mortgage statements 

usually do, the statement included information about the amount of 

outstanding principal: $180,234.48. It also included a statement of other fees 

associated with the mortgage, which with the principal totaled $228,690.15. 

A week later, the Bank sent the third communication, a notice of 

reinstatement. It told the Lyonses that if they would pay their past-due 

amounts, as well as certain associated fees, their loan could be returned to its 

pre-acceleration status. The total amount due to reinstate the loan was 

$67,581.72.

The Lyonses did not pay the reinstatement amount, the amount of the 

fully accelerated loan, or any other amount of money. Deutsche Bank National 

Trust Company purchased the property at the foreclosure sale for $217,175.00. 

Nearly two years later, the Lyonses sued Select Portfolio Servicing Inc. 

and Deutsche Bank for breach of contract, money had and received, unjust 

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enrichment, and wrongful foreclosure. The district court granted judgment on 

the pleadings, concluding that none of the Lyonses’ claims had merit. After a 

de novo review, we agree with the district court. See Gentilello v. Rege, 627 

F.3d 540, 543 (5th Cir. 2010) (applying de novo review to judgment on the 

pleadings).

As the Lyonses have pleaded them, each claim depends on the mistaken 

theory that the Bank abandoned its attempt to accelerate the loan. They 

concede that the notice of acceleration was valid. But they argue that the 

monthly mortgage statement and reinstatement notice abandoned 

acceleration, citing various Texas cases. See, e.g., Boren v. U.S. Nat’l Bank 

Ass’n, 807 F.3d 99 (5th Cir. 2015). In those cases, a mortgagee accelerated a 

loan under the terms of the note and deed of trust but later “manifested an 

intent to abandon [the] previous acceleration.” Id. at 106. 

In this case, the Bank never wavered from accelerating the loan. It 

“continuously pursued . . . full payment on the note or to foreclose upon the 

property.” See Fitzgerald v. Harry, No. 2-02-330-CV, 2003 WL 22147557, at *5 

(Tex. App.—Fort Worth Sept. 18, 2003, no pet.) (mem. op.); see also Bank of 

N.Y. Mellon v. Maniscalco, No. 1:15-CV-035, 2016 WL 3584423, at *3 (E.D. 

Tex. Mar. 3, 2016) (concluding that a reinstatement notice that is silent 

regarding acceleration does not manifest an intent to abandon acceleration). 

It thus did not abandon acceleration. 

The Lyonses believe the Bank abandoned acceleration because the 

monthly mortgage statement and reinstatement notice referenced different 

amounts from the original loan amount. This argument is built on two 

mistaken assumptions. First, it assumes that the acceleration notice was for 

only the original loan amount. But the deed of trust granted the Bank 

authority to accelerate “the sums secured by” the deed of trust, which includes 

interest and other fees. Second, it assumes that the amounts referenced in the 

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mortgage statement and reinstatement notice were modifications to the 

acceleration amount. But the amounts in the mortgage statement and 

reinstatement notice unambiguously refer to different calculations, not the 

acceleration amount. The documents also explicitly state they were sent 

purely for informational purposes, not in an attempt to collect any debt. The 

alleged conduct is thus unlike those instances when a bank explicitly stated it 

was abandoning acceleration or acted so inconsistently that it could be 

construed to have abandoned acceleration. See Pitts v. Bank of N.Y. Mellon 

Trust Co., N.A, No. 05-17-00859-CV, 2018 WL 6716933, at *4–6 (Tex. App.—

Dallas Dec. 21, 2018, no pet. h.) (collecting cases where a bank had abandoned 

acceleration and concluding that sending delinquency notices that referenced 

foreclosure followed by subsequent notices without any mention of foreclosure 

created a genuine issue of material fact regarding abandonment). The Lyonses

have not alleged that the Bank sent any other letters, nor have they identified 

any parts of the two documents from which a court could plausibly infer 

abandonment. 

Because the Lyonses acknowledge that all their claims depend on the 

Bank improperly accelerating and because we determine that acceleration was 

proper, the Lyonses’ claims fail.

AFFIRMED.

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