Clear and Unequivocal as Mud

This week’s case is a funny little case from 2018: Wilmington Trust, N.A. v. Rob, 891 F.3d 174 (5th Cir. 2018). Kcevin and Angel Rob took out a home equity loan in July 2007. They stopped paying on the loan in March 2011. Over the next two years, Wilmington Trust [n.1] sent the Robs a series of notices of default, of intent to accelerate, and of acceleration. But, in November 2014, Wilmington Trust sent the Robs a notice of rescission of acceleration. The Robs continued not paying their mortgage, and Wilmington Trust sued for foreclosure in June 2015. The district court entered judgment in favor of Wilmington Trust, but the Fifth Circuit reversed.

Texas courts require clear and unequivocal notice of (1) intent to accelerate and (2) acceleration itself. “Unless a lender provides both forms of notice, it may not foreclose.”  Rob, 891 F.3d at 177. Here, Wilmington Trust may have provided clear and unequivocal notice at some point, but the notice of rescission in November 2014 made all of that very much less clear and unequivocal. Wilmington Trust, therefore, failed to prove that it had provided clear and unequivocal notice and was, accordingly, not entitled to a judgment of foreclosure. Trial court judgment reversed and rendered; game over.

BUT — this case should not be read as saying that Wilmington Trust can never foreclose. Rather, it should be read as saying that Wilmington Trust cannot foreclose yet. If the home equity loan has not yet matured, Wilmington Trust could probably just re-issue the notices of intent to accelerate and of acceleration, then sue for foreclosure. Sometimes you can stick it to the man a couple times, but you can’t stick it to him  forever.


  1. Technically, the notices were sent by one of Wilmington Trust’s predecessors in interest,  but that detail is not particularly important.

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