dissenting.
I dissent.
The promissory note provides, in relevant part, as follows:
7.E. Payment of Note Holder's Costs and Expenses
If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorney’s fees.
The Deed of Trust provides, in relevant part, as follows:
18. Acceleration; Remedies_ If the breach is not cured on or before the date specified in the notice, Lender at Lender’s option may declare all of the sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by applicable law. Lender shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph 18, including but not limited to, reasonable attorney’s fees. (Paragraph continues with explanation of trustee sale procedures).
In my opinion, these provisions in the note and deed of trust authorize the lender to collect all reasonable costs and expenses incurred as a result of default. If the trustee took action as authorized by the deed of trust, and as a result the lender incurred costs, these paragraphs clearly and unambiguously allow the lender to collect those costs from the debtor, without regard to whether a foreclosure sale took place.
The evidence is uncontroverted that the trustee under the deed of trust instituted foreclosure proceedings at the request of Galveston S & L. By the time Holleman paid off the note, on the day before the scheduled foreclosure sale, the trustee had done everything except conduct the sale. It was the mortgage company, Galveston S & L, that demanded payment of the trustee’s fee as part of its loan payoff figure; the trustee, personally, did not make the demand for payment from Holleman.
In my opinion, the trial court correctly ruled that, under the note and deed of trust, trustee’s fees may be payable by the debtor, even though the foreclosure sale did not take place. The trial court was correct in submitting to the jury, questions about the reasonableness of the trustee’s fee.
I would overrule Holleman’s cross-point one, and would address the other points of error before us on this appeal.