Thomas Kearns appeals the district court’s grant of summary judgment to Vineyard Bay Development Company, Inc. (“Vineyard Bay”), Alamo Title Insurance (“Alamo”), and Bruce Liesman.
I.
Hugh Robertson, the president of Vineyard Bay, and his wife, Maureen, were personal friends of Thomas Kearns and his wife. Vineyard Bay borrowed $800,000 from Kearns and executed a promissory note made payable to Kearns in that amount. The note wаs secured by. a deed of trust on certain properties that also secured debt owed to Alamo and Liesman by Vineyard Bay. The note matured on July 15, 1988, and Vineyard Bay had not repaid the debt as of that date. On January 15, 1989, Kearns and Vineyard Bay entered into a formal, written agreement extending the note’s maturity date to July 15, 1989. Vineyard Bay did not repay the debt by the extended maturity date, and Kearns did not take legal action.
On October 31, 1994, Vineyard Bay filed a voluntary petition for bankruptcy under Chapter 11 of the United States Bankruptcy Code. On February 9, 1995, Kearns filed an $840,000 proof of claim in Vineyard Bay’s bankruptcy proceeding.
II.
As a preliminary matter, appellees urge this court to dismiss Kearns’s appeal as moot because Kearns did not seek a stay of the bankruptcy proceedings pending appeal, and, they claim, there has been a substantial consummation of Vineyard Bay’s bankruptcy plan. Although it is true that this court “may decline to consider the merits of a confirmation order when there has been substantial consummation of the plan such that effective judicial relief is no longer available,” In re Manges,
III.
Kearns does not dispute that, unless saved by an exception, his claim is barred by the statute of limitations governing a suit on a debt. Under Texas law, a suit on a debt that is not commenced within four years of the time that the cause of action accrues is barred. Tex. Civ. Prac. & Rem. Code § 16.004(a)(3). Texas law also provides, however, that limitations mаy be avoided by a written acknowledgment that meets certain prerequisites:
An acknowledgment of the justness of. a claim that apрears to be barred by limitations is not admissible in evidence to defeat the law of limitations if made after the time the claim is due unless the аcknowledgment is in writing and signed by the party to be charged.
Tex. Civ. Prac. & Rem.Code § 16.065. Under Texas law, an acknowledgment operates as a new obligаtion rather than merely as a revival of the prior debt. Allied Chem. Corp. v. Koonce,
An acknowledgment must “either evidence an express promise to pay the debt or an unequivocal acknowledgment of its justness from which it is said the law will imply a promise to pay it.” Cotulla v. Urbahn,
In response to appellees’ motions fоr summary judgment, Kearns relied on two letters that he claims “corroborate” the acknowledgment necessary to defeat the statutе of limitations.
The first letter upon which Kearns relies was written by counsel for Vineyard Bay to Kearns’s counsel. In that letter, counsel for Vineyаrd Bay takes the position that the statute of limitations has expired, but that Robertson has nevertheless “indicated .... a willingness to attempt to work with Mr. Kearns to accomplish a liquidation of the collateral which was posted to secure the obligation and provide for the payment of net proceeds of that collateral to Mr. Kearns.” Kearns’s claim that this letter constitutes an acknowledgmеnt is without merit. Far from being an unequivocal acknowledgment of the justness of the debt, the letter expressly states, “The matters set forth herein аre a general outline of a proposed resolution or settlement of a controversy and therefore are not to be deemed by way of admission, which they expressly are not.”
The second letter upon which Kearns relies was written by Robertson to Kearns on November 1, 1994, the day after Vineyard Bay’declared bankruptcy. The subject line of the letter read “Note Payable & Collateral.” In the letter, Robertson represented that Vineyard Bay had been placed in bankruptcy “to protect your collateral and provide a reasonably prompt way to sell the lots with
Assuming without deciding that the letter from Robertson to Kearns would otherwise be sufficient to defeat limitations under Tеxas law, federal bankruptcy law prevents such a result in this case. Robertson "wrote the letter after Vineyard Bay filed for Chapter 11 bаnkruptcy. Under the Bankruptcy Code, a debtor cannot incur post-petition debt without court authorization following notice and a hеaring. 11 U.S.C. § 364. Vineyard Bay did not obtain court authorization to make a new promise regarding the otherwise time-barred pre-petition debt to, Kearns. In fact, Kearns himself appears to acknowledge that this letter alone, because it was written after Vineyard Bay declared bankruptcy, is insufficient to defeat limitations.
Finally, Kearns contends that even if the writings upon which he relies do not satisfy the requirements оf Section 16.065, Vineyard Bay is nevertheless es-topped from invoking limitations because Kearns relied to his detriment on oral representations by Hugh Robertson and his wife Maureen. We reject this contention. Texas law precludes an estoppel defense to limitations based upon oral representations. See Nassar v. Nelson,
IV.
For the foregoing reasons, the judgment of the district court is AFFIRMED.