Bodiford v. Parker

JORDAN, Justice,

dissenting.

I respectfully dissent.

Appellants contend that language contained in paragraph 8 of the Deed of Trust is a clear waiver of any requirement of notice other than the notice of foreclosure proceedings as required by Tex.Rev.Civ. Stat.Ann. art. 3810 (Supp.1982). The trial court, according to the statement of facts of the hearing on the injunction, apparently felt that because there was no waiver of presentment of the note and demand for payment for the past due installment contained in the note itself, that there was no waiver of presentment of the note and demand for payment. With this ruling I disagree.

Requirement of the notice of the intent to accelerate and to give the mortgagor the opportunity to cure the default may be waived. In Ogden v. Gibraltar Sav. Ass’n, 640 S.W.2d 232, 233-234 (Tex.1982) it was said:

Thus, in the absence of a waiver, the holder of a delinquent installment note must present the note and demand payment of the past due installments prior to exercising his right to accelerate. Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863 (Tex.1975) ... Notice of intent to accelerate is necessary in order to provide the debtor an opportunity to cure his default prior to harsh consequences of acceleration and foreclosure. Proper notice that the debt has been accelerated, in the absence of a contrary agreement or waiver, cuts off the debtor’s right to cure his default and gives notice that the entire debt is due and payable. [Emphasis added.]

It has been held that where a promissory note secured by a deed of trust had provisions for acceleration of maturity without notice and waiver of presentment for payment, foreclosure was proper without presentment of the note for payment and without notice of intention to accelerate maturity of the note. See Whalen v. Etheridge, 428 S.W.2d 824 (Tex.Civ.App.—San Antonio 1968, writ ref’d n.r.e.); Burnett v. Manufacturer’s Hanover Trust, 593 S.W.2d 755 (Tex.Civ.App.—Dallas 1979, writ ref’d n.r.e.); Valley v. Patterson, 614 S.W.2d 867 (Tex.Civ.App.—Corpus Christi 1981, no writ); Purnell v. Follett, 555 S.W.2d 761 (Tex.Civ.App.—Houston [14th Dist.] 1977, no writ).

*341Appellee contends that the case of Purnell v. Follett, supra, supports her position in this case that there was no waiver of the requirement of presentment of the note for payment and of the notice of intent to accelerate. She contends that the acceleration clause in this case is very similar to the acceleration clause in Purnell. I disagree, for the reason that the court in Purnell, in holding that there was no clear language indicating a waiver of notice of intent to accelerate the mortgage payments because of failure to pay taxes, pointed out that the acceleration clause in the note and Deed of Trust read as follows:

shall have the option to declare all of the indebtedness immediately due and payable and without demand upon, or notice to, the Grantors, to foreclose the lien of the Deed of Trust ... [Emphasis added.]

Purnell v. Follett, supra, at page 764.

The language of the acceleration clause in Purnell v. Follett, supra, differs from the language of the acceleration clause in the case sub judice. The acceleration clause in this case states in simple, clear language that in the case of default the entire indebtedness may be immediately matured without demand or notice of any character, and that the trustee shall enforce the trust and sell the property under art. 3810 after notice as provided in that article (but without any other notice than is required by said art. 3810, as amended). That language is unequivocal and plain and precludes the necessity of any notice other than that of the foreclosure of the property.

The trial court seemed to feel that since the waiver provisions were not contained in the promissory note that there could be no waiver in this case. I believe that proposition is untenable for the reason that where a note and deed of trust are executed contemporaneously as security instruments in the course of a single transaction, as in this case, they are to be considered as though they are in fact a single instrument. See B & B Pharmacy & D., Inc. v. Lake Air Nat. Bank of Waco, 449 S.W.2d 340 (Tex.Civ.App.—Waco 1969, writ dism’d); Bennett v. State Nat. Bank, Odessa, Tex., 623 S.W.2d 719 (Tex.Civ.App.—Houston [1st Dist.] 1981, no writ).

The majority opinion seems to hold that there was “a waiver of the waiver” in this case. It states that appellee “had been late in making her payments (the record does not disclose with what frequency) ...” In fact, all the evidence revealed is the simple fact that that appellee was apparently late in making one payment. Here is the testimony of appellee Parker, and the only testimony, on that point:

Q. All right. Have you ever been late, as far as past the 15th, on your payments to Mr. Bodiford?
A. Yes, I have.
Q. And how late have you been, if you hadn’t made them on the 15th?
A. Probably as late as the 20th.
Q. However, in August of this year you were later than normal; is that correct?
A. Yes.

It is my opinion that this evidence, above recited, does not even come close to constituting evidence of a pattern or habit of acceptance of late payments by appellants which would negate or waive appellants’ right to rely on the waiver provisions contained in paragraph 8 of the Deed of Trust. Moreover, the acceptance of late payments was not raised or urged by appellee in the trial court or on appeal as a defense to the waiver provisions contained in the Deed of Trust.

I would reverse the judgment of the trial court and order the temporary injunction dissolved.

HUGHES, J., joined.