Cruce v. Eureka Life Insurance Co. of America

STEPHENS, Justice.

B.W. Cruce, Jr., appeals from a judgment denying him recovery for wrongful foreclosure against Eureka Life Insurance Company of America. On appeal, Cruce brings forward four points of error. We reject each point and affirm the trial court’s judgment.

In his first three points of error Cruce contends that the trial court erred in rendering judgment for Eureka because: (1) Eureka failed to give notice of its intention to accelerate the note and foreclose its lien under the deed of trust; (2) Eureka failed to demand payment on the full amount of the note before it posted the property for foreclosure; and (3) the property was posted for foreclosure before the indebtedness was due or declared due. We disagree.

Cruce misplaces his reliance on Joy Corp. v. Nob Hill North Properties, Ltd., 543 S.W.2d 691 (Tex.Civ.App.—Tyler 1976, no writ), and Ogden v. Gibraltar Savings Assoc., 640 S.W.2d 232 (Tex.1982), for the proposition that when the right to acceleration is optional equity requires the holder to give both notice of his intent to accelerate and notice of acceleration; neither case involved a contractual waiver of such notice. The promissory note in this case provided:

Each maker, surety and endorser of this note expressly waives all notices, demands for payment, notices of intention ■to accelerate the maturity protest and notice of protest, as to this note and as to each, every and all installments hereof.

The deed of trust contained the following provision:

That in the event of default in the payment of. any installment, principal or interest of the note hereby secured, in ac*657cordance with the terms thereof, or of a breach of any of the covenants herein contained to be performed by grantors, then and in any of such events beneficiary may elect, grantors hereby expressly waiving presentment and demand for payment, to declare the entire principal indebtedness hereby secured with all interest accrued thereon and all other sums hereby secured immediately due and payable ...

Contractual waivers of notice provisions are valid and enforceable. See Ogden v. Gibraltar Savings Assoc., 640 S.W.2d 232, 233 (Tex.1982); Chapa v. Herbster, 653 S.W.2d 594 (Tex.Civ.App.— Tyler 1983, no writ). We conclude that in light of the waivers contained in the note and the deed of trust, neither notice of intent to accelerate nor notice of acceleration was required in this instance. Slivka v. Swiss Ave. Bank, 653 S.W.2d 939 (Tex.App.—Dallas 1983, no writ); Real Estate Exchange Inc. v. Bacci, 676 S.W.2d 440 (Tex.App.—Houston [1st Dist.] 1984, no writ). Cruce’s first three points of error are overruled.

In his final point of error, Cruce contends that the trial court erred in rendering judgment for Eureka because the evidence shows that Eureka failed to provide him with the notice of the sale as required by Article 3810.1 The record contains a carbon copy of a cover letter dated November 6, 1979, from Eureka to the Dallas County’s Sheriff’s department requesting the posting of three trustee’s notices of sale enclosed with the letter. The record also contains an envelope Eureka mailed to Cruce by certified mail, return receipt requested, postmarked November 6, 1979, and a return receipt for that envelope showing delivery to B.W. Cruce, Jr., accepted by Marlene Cruce, on November 8,1979. James B. Thomas, the trustee under the deed of trust, testified that a “blank copy” of the cover letter to the Dallas County Sheriff’s office and a copy of the trustee’s notice of sale was sent to Cruce in the above described envelope. Although Thomas testified that he did not personally mail the notice with the cover letter, he stated that doing so was a regular business practice of his company. We conclude that this is sufficient evidence from which the trial court could have found that the proper statutory notice was sent to and received by Cruce. Cruce testified that he received a copy of the cover letter but did not receive a copy of the notice; however, it is the province of the trial court to resolve conflicts in the evidence and to judge the credibility of the witnesses and their testimony. Johnson v. Buck, 540 S.W.2d 393 (Tex.Civ.App.—Corpus Christi 1976, writ ref'd n.r.e.). Cruce’s fourth point of error is overruled.

Affirmed.

HOWELL, J., dissenting.

. Act of 1975, ch. 723, SI, 1975 Tex.Gen.Laws, Local & Spec. 2354, Repealed by Act of 1983, Ch. 576, § 6, 1983, Tex.Gen.Laws 3729.