United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED December 20, 2024 No. 23-50662 Lyle W. Cayce ____________ Clerk U.S. Bank Trust National Association, as Trustee of the Tiki Series IV Trust,

Plaintiff—Appellee,

versus Jerry K. Walden, Jr., also known as Jerry K. Walden; Tamatha Walden,

Defendants—Appellants. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 1:21-CV-1188 ______________________________ Before Clement, Graves, and Ramirez, Circuit Judges. James E. Graves, Jr., Circuit Judge: An entity that owns and holds a loan agreement, including its note and the beneficiary interest in the security instrument, sought to foreclose on a property after borrowers failed to make required payments on the note; this court entered a judgment for non-judicial foreclosure. Below, the district court denied the borrowers’ motion for extension of time, adopted the magistrate judge’s report recommending that summary judgment be entered against the borrowers, entered a declaratory judgment, and denied the Case: 23-50662 Document: 61-1 Page: 2 Date Filed: 12/20/2024

No. 23-50662

borrowers’ motion for an altered judgment, which was stylized as a motion for a new trial. The borrowers challenged the district court’s orders, alleging abuse of discretion and plain error. We conclude that the district court did not abuse its discretion but did err in finding that the entity did not manifest an unequivocal intent to abandon acceleration. Thus, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion. BACKGROUND On June 15, 2004, Jerry and Tamatha Walden received real property located at 1017 Burleson Street, San Marcos, Texas (the Property) via a Warranty Deed with a Vendor’s Lien.1 Years later, in 2008, the Waldens executed a $316,800 Texas Home Equity Note with a 5.5% annual interest rate payable to Nationstar Mortgage LLC. This Note included a corresponding Texas Home Equity Security Instrument2 that granted Nationstar, the named beneficiary, a security interest in the Property. Together, the Note and the Security Instrument made up the Loan Agreement. The Loan Agreement provided that (1) the Waldens were required to pay the Note’s principal and interest when due; and (2) that if they failed to do so, or they failed to comply with any of the covenants and conditions of the Security Instrument, the lender could enforce the Security Instrument by selling the Property according to the law and with the provisions set out in the Loan Agreement.

_____________________ 1 This document was recorded in the Official Public Records of Hays County, Texas on June 16, 2004, as Document No. 04017063. 2 This document was recorded in the Official Public Records of Hays County, Texas on April 18, 2008, as Document No. 2008-80010245.

2 Case: 23-50662 Document: 61-1 Page: 3 Date Filed: 12/20/2024

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In 2008, Nationstar assigned the Loan Agreement to the Federal National Mortgage Association (Fannie Mae). Fannie Mae then assigned th