dissenting.
I dissent from the refusal of the Court to hear this case en bane.1
The majority opinion states:
There is no requirement under the deed of trust, for NCB to serve notice of the foreclosure sale on appellees because of the Stiehl Children’s default on the $20,000 note.
Op. at 708 (citation omitted). I disagree. The deed of trust clearly, and unambiguous*709ly, required notice of the foreclosure sale to be sent to appellees prior to the sale.2
The Stiehl Children wanted to buy a home, but could not qualify for the needed financing on their own. To enable their son and daughter-in-law to obtain $44,000.00 worth of financing for the purchase of a home, appel-lees agreed to be co-signatories with the Stiehl Children on a note for $24,000. Additionally, the Stiehl Children, alone, signed a separate note for the balance of the financing, $20,000.00. The payment of both notes was secured by the home the Stiehl Children bought, both notes being “purchase-money notes” for the home.
The deed of trust defines the “Indebtedness” covered by the mortgage as:
All sums due pursuant to those 2 promissory notes ... of even date hereof ($24,000 and $20,000 notes) executed by Grantor [the Stiehl Children], and David C. Stiehl and Patricia Stiehl [appellees]....
The default provisions of the deed of trust include the requirement that, before the secured property (the home) is sold at a foreclosure sale, the
Beneficiary shall at least twenty-one (21) days preceding the date of the sale serve written notice of the proposed sale by certified mail on each debtor obligated to pay the Indebtedness according to the records of beneficiary.
(Emphasis added.)
The deed of trust is clear and unambiguous: The “Indebtedness” included the $24,-000 note, signed by appellees as debtors. As a matter of law, appellees were entitled to prior notice of the foreclosure sale in accordance with the terms of the deed of trust. Houston First American Sav. v. Musick, 650 S.W.2d 764, 768 (Tex.1983) (compliance with the notice conditions contained in a deed of trust is a prerequisite to the right of the trustee to make a sale). This Court should address the effect of the lack of the required notice on the claims of the parties.
DUGGAN and COHEN, JJ., join in this opinion.
. In accordance with Tex.R.App.P. 79(e) and 90(e), a request was made for an en banc consideration of the case. The request was denied by a majority of the en banc court. I dissent from that vote refusing to hear this case en banc.
. Because the deed of trust is clear, I would hold the failure of the trial court to file additional findings of fact and conclusions of law was harmless. See Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex.1989); Tex.R.App.P. 81(b). Accordingly, I would overrule NCB’s first point of error.