Sims v. Roundpoint Mortgage Servicing Corp., 012819 FED5, 18-40332

Docket Nº:18-40332
Opinion Judge:PER CURIAM.
Party Name:NATHALIE D. SIMS, Plaintiff - Appellant v. ROUNDPOINT MORTGAGE SERVICING CORPORATION, Defendant-Appellee
Judge Panel:Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.
Case Date:January 28, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

NATHALIE D. SIMS, Plaintiff - Appellant



No. 18-40332

United States Court of Appeals, Fifth Circuit

January 28, 2019

Appeal from the United States District Court for the Eastern District of Texas

Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.


This case involves a mortgage-foreclosure dispute. Plaintiff-Appellant Nathalie Sims ("Sims") appeals the district court's grant of Defendant-Appellee RoundPoint Mortgage Servicing Corporation's ("RoundPoint") motion for summary judgment. Specifically, Sims challenges: (1) the district court's conclusion that Sims failed to show an issue of material fact in support of her claim for a declaratory judgment based on the statute of limitations under Texas Civil Practice and Remedies Code § 16.035(a); and (2) the district court's finding that Sims failed to present sufficient evidence in support of her Fair Debt Collection Practices Act (FDCPA) and Texas Debt Collection Practices Act (TDCA) claims against RoundPoint. For the reasons that follow, we AFFIRM.


On August 22, 2003, Sims executed a home equity loan promissory note (the "Note) to Jacksonville Savings Bank, S.S.B. ("Jacksonville Savings Bank"). Sims executed a Deed of Trust to Bill W. Taylor as Trustee for Jacksonville Savings Bank to secure the Note. The Note was in the amount of $60, 000, payable in monthly installments of $438.56. The Deed of Trust encumbered the real property located at Route 2, P.O. Box 1079, Bullard, Texas 75757 (the "Property"), which is also Sims' homestead. There are no liens on the Property other than the one created by the Deed of Trust, now claimed by RoundPoint.

The Note and the Deed of Trust were made as a home equity loan (the "Loan") under Article XVI § 50(a)(6) of the Texas Constitution. Therefore, the Note is non-recourse as to Sims- she may not be held personally liable for the amount owed under the Note.

The holder of the Note and the Deed of Trust changed several times. In December 2003, Jacksonville Savings Bank was acquired by Franklin Bank, a state-chartered bank with its principal office in Houston, Texas. In November 2008, Franklin Bank was closed by the Texas Department of Savings and Mortgage Lending, and the Federal Deposit Insurance Corporation ("FDIC") was named receiver for the bank. Consequently, the FDIC began to administer all of the loans previously held by Franklin Bank, including Sims' loan. On August 1, 2010, the Note and Deed of Trust were assigned to Multibank 2010-1 SFR Venture, LLC, and shortly thereafter, RoundPoint acquired rights to become servicer of the Loan. On April 7, 2010, Sims received notice from RoundPoint informing her that RoundPoint was the servicer of the Loan, and that future payments on the Note should be made to RoundPoint. Sims asserts she never received verification of ownership nor the proper payment documents from RoundPoint.

Sims contends that she never received an indication or notification regarding missed payments on the Note. Eventually, she was roughly seven months behind on payments. RoundPoint contacted Sims to discuss her delinquency, and she informed RoundPoint that she was unable to make payments because she was unemployed.

After some correspondence between Sims and RoundPoint regarding the accounting and verification of the amounts due on the Note, RoundPoint sent Sims a "Notice of Default and Intent to Accelerate" on August 12, 2010. Round-Point accelerated the Note on October 26, 2011. RoundPoint applied for an order allowing foreclosure pursuant to Texas Rule of Civil Procedure 736 ("Rule 736"), in the 2nd Judicial District Court of Cherokee County, Texas on December 8, 2011. The state court granted the application by order on February 14, 2012, and foreclosure was set for April 3, 2012.

In response to the court order allowing foreclosure, Sims filed for Chapter 13 bankruptcy on March 27, 2012. During the bankruptcy proceedings, RoundPoint agreed that the claim on the Note was overstated and an order was entered in the case reducing the delinquency by $12, 345.08. Sims was unable to maintain her bankruptcy plan, and on December 18, 2013, her bankruptcy was dismissed due to infeasibility.

Following the dismissal of the bankruptcy, Sims retained counsel in an attempt to send RoundPoint "Qualified Written Requests" ("QWR") pursuant to the Real Estate Settlement Procedures Act ("RESPA"). This started a process in which Sims would request information from RoundPoint, then Round-Point would respond with information it determined to be compliant with RESPA, and Sims would threaten to file suit if the purported QWR requests were not met.

On February 27, 2015, RoundPoint sent Sims notice of default and an intent to accelerate, seeking less than the total amount owed on the Note. The notice further informed Sims that the Note might have been reinstated if the past due amounts were paid. To date, no foreclosure on the Property has taken place.

On November 1, 2016, Sims sued RoundPoint in the 2nd Judicial District Court of Cherokee County, Texas, for alleged violations of RESPA, 12 U.S.C. § 2601, et seq. RoundPoint removed the case to federal court. Sims filed an amended complaint, seeking damages for violations of RESPA, the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"), and the Texas Debt Collection Practices Act, Tex. Fin. Code § 392.001, et seq. ("TDCA"). Sims also sought a declaration that the lien on the Property is void and unenforceable pursuant to Tex. Civ. Prac. & Rem. Code § 16.035, and a declaration of the amount due under the Note. After discovery, RoundPoint moved for summary judgment.

The Magistrate Judge issued a report and recommendation granting RoundPoint's motion. Sims did not file objections to the report and recommendation. Later, the district court entered an order adopting the report and recommendation and entered final judgment in RoundPoint's favor. This appeal followed.

On appeal, Sims argues the Magistrate Judge: (1) reached an incorrect conclusion that the statute of limitations had not run on RoundPoint's foreclosure claim, based on an improper application of the law regarding the acceleration and abandonment of foreclosure and an incorrect interpretation of detrimental reliance as it applies to acceleration and abandonment; (2) made an improper interpretation of Sims' objection to the abandonment and acceleration; (3) did not give proper effect to the bankruptcy court's order determining claims; and (4) erred in finding that Sims did not present sufficient evidence to survive summary judgment on her FDCPA and TDCA claims. RoundPoint contends, inter alia, that Sims' statute of limitations claim fails because RoundPoint abandoned any prior acceleration when it sent Sims notice of default in February 2015, and Sims has not proffered evidence sufficient to raise an issue of fact on her remaining claims.


We review a district court's grant of summary judgment de novo. Boren v. U.S. Nat. Bank Ass'n, 807 F.3d 99, 103-04 (5th Cir. 2015) (citing Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 631, 635 (5th Cir. 2002)). Summary judgment is appropriate only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In reviewing summary judgment, we construe all facts and inferences in the light most favorable to the nonmoving party. Boren, 807 F.3d at 104 (citing Canal Ins. Co. v. Coleman, 625 F.3d 244, 247 (5th Cir. 2010)).



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." Tex. Civ. Prac. and Rem. Code § 16.035(a). Where "a note or obligation [is] payable in installments [and] is secured by a real property lien, the four-year limitations period does not begin to run until the maturity date of the last note, obligation, or installment." EMC Mortg. Corp. v. Window Box Ass'n, Inc., 264 S.W.3d 331, 335 (Tex. App.-Waco 2008, no pet.). "If a note or deed of trust secured by real property contains an optional acceleration clause," however, the action accrues "when the holder actually exercises its option to accelerate." Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001). To exercise the option, the holder must send "both a notice of intent to accelerate and a notice of acceleration." EMC Mortg. Corp., 264 S.W.3d at 335-36. "Both notices must be 'clear and unequivocal.'" Id. at 336 (quoting Wolf, 44 S.W.3d at 566).

Acceleration of a note may be unilaterally abandoned "by requesting payment on less than the full amount of the loan." Boren, 807 F.3d at 106 (quoting Leonard v. Ocwen Loan Servicing, L.L.C., 616 Fed.Appx. 677, 680 (5th Cir. 2015) (per curiam)). "'Abandonment of acceleration has the effect of restoring . . . the note's original maturity date,' and thus resetting maturity of the last installment as the accrual date for the purpose of the statute of limitations." Alcala v....

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