The Fifth Circuit Upholds a Deed of Trust Non-Waiver Provision in Martin v. Federal Nat’l Mortgage Ass’n

The Fifth Circuit Upholds a Deed of Trust Non-Waiver Provision in Martin v. Federal Nat’l Mortgage Ass’n

by Onyinyechi Muilenburg

In Martin, the Fifth Circuit upheld a non-waiver provision in a Note and Deed of Trust.  See Martin v. Federal Nat’l Mortgage Ass’n, No. 15-41104, 2016 WL 723263 (5th Cir. Feb. 22, 2016). Martin borrowed $140,000, secured by a note and deed of trust to purchase a residence. The deed of trust obligated Martin to make monthly payments, and gave the lender the right to accelerate the obligation and foreclose the resident in the event of default. The deed of trust also contained certain non-waiver provisions which materially provided “[a]ny forbearance by Lender in exercising any right or remedy including, without limitation, Lender’s acceptance of payments from third persons, entities or Successors in Interest of Borrower or in amounts less than the amount then due, shall not be a waiver of or preclude the exercise of any right or remedy.” Martin did not timely make the December 2009 payment. In June of 2011, Martin returned to his home from vacation and found that his May and June 2011 payments had been returned, and that Lender had designated his residence for a foreclosure sale on July 5, 2011. Lender then sold the residence at a foreclosure sale in December of 2012. In June of 2013, Martin brought suit seeking to quiet title, arguing Lender waived its right to foreclose because it accepted payments for sixteen months after the initial default. Martin also argued that the foreclosure sale occurred more than three (3) years after the default.  The Court ruled against all of Martin’s arguments, noting that Martin “misread” the other recent opinions where homeowners tried to make similar arguments to avoid foreclosure sales, and upheld the non-waiver provision.

No information in this article is intended to constitute legal advice. For specific legal advice, please contact an attorney.

If you have questions about foreclosures, deeds of trusts or non-waiver provisions, please contact William “Pat” Huttenbach at 713.220.9184 or whuttenbach@hirschwest.com.