Bodiford v. Parker

• Decision Date: 21 April 1983
• Docket Number: No. 2-82-197-CV,2-82-197-CV
• Citation: 651 S.W.2d 338
• Parties: Clayton BODIFORD d/b/a Bodiford Investment Company and Trustee, Kenneth C. Kautz, Appellants, v. Carol D. PARKER, Appellee.
• Court: Texas Court of Appeals

Page 338

651 S.W.2d 338

Clayton BODIFORD d/b/a Bodiford Investment Company and Trustee, Kenneth C. Kautz, Appellants, v. Carol D. PARKER, Appellee.

No. 2-82-197-CV.

Court of Appeals of Texas,

Fort Worth.

April 21, 1983.

Rehearing Denied May 26, 1983.

Ball, Landrith & Kulesz and G. Craig Hubble, Arlington, for appellants.

Gary L. Nickelson, Fort Worth, for appellee.

Before the court en banc.

OPINION

ASHWORTH, Justice.

Appellee, Parker, was granted a temporary injunction in the trial court enjoining and prohibiting appellant, Bodiford Investment Company, from foreclosing on real property purchased by appellee from appellants. The trial court, in granting the temporary injunction, held that appellee had not received sufficient notice of appellants' intent to foreclose the mortgage. Appellants appeal on the sole ground that the requirement of such notice had been waived by appellee under the provisions of the Deed of Trust.

We affirm the judgment of the trial court.

In February of 1980 appellee executed a Second Vendor's Lien Note and Deed of Trust in the amount of $15,694.41 in favor of appellant, Bodiford Investment Company. Appellee made all payments on this second lien note until the one due August 15, 1982; appellee testified she believed this payment was mailed on August 26, 1982. On August 26, 1982, she received a letter from the trustee, Kenneth C. Kautz, notifying appellee that her August 15th payment was past due and that the note was accelerated. The real property secured by said note and Deed of Trust was posted for foreclosure by Trustee's sale. The Notice of Trustee's Sale was attached to the letter.

Appellee was not given any notice to the effect that her payments were in default and that the Deed of Trust mortgage would be foreclosed unless payments were brought current. She filed this action for an injunction primarily on the ground that she was not given sufficient notice of the delinquency and of the intent to foreclose the Deed of Trust mortgage.

Appellants' sole ground of error claims that the trial court erred in granting the temporary injunction enjoining the Trustee's sale because appellee had waived presentment of the note and demand for payment of the past due installments prior to acceleration of the maturity of the note.

Paragraph 8 of the Deed of Trust executed by appellee contains the language on which appellants rely for a waiver of presentment of the note and demand for payment of the past due installment prior to acceleration of the maturity of the note. That paragraph reads as follows:

But should Grantors make default in the punctual payment of said indebtedness or any part thereof, principal or interest, as the same shall become due and payable, ... then ... the entire indebtedness hereby secured ... may, at the option of the Beneficiary, ... be immediately matured and become due and payable without demand or notice of any character, and it shall thereupon, or at any time thereafter, be the duty of the Trustee ... to enforce this Trust and make sale of said real property as provided in Article 3810 ... after notice as provided in said article (but without any other notice than is required by said Article 3810, as amended) ...

It is noted that the provision provides for an option on the part of the beneficiary to accelerate without demand or notice. Ogden v. Gibraltar Sav. Ass'n, 640 S.W.2d 232, 234 (Tex.1982) sets forth the notices required:

1. "Notice of intent to accelerate is necessary in order to provide the debtor an opportunity to cure his default prior to the harsh consequences of acceleration and foreclosure."

2. "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."

In Gibraltar, the court went on to hold that since there was no proper notice of intent to accelerate, any attempted acceleration was ineffective. The court reserved the question of whether, after proper notice of intent to accelerate, a Notice of Trustee's Sale is sufficient to give notice that the debt has been accelerated.

In the case under consideration, there was no notice of intent to accelerate given, therefore the beneficiary could not accelerate even if further notice of acceleration was waived.

There is another type of waiver frequently present in cases of this type. That is the implied waiver of requirement of punctual payments by acceptance of payments made past the due date. McGowan v. Pasol, 605 S.W.2d 728 (Tex.Civ.App.--Corpus Christi 1980, no writ); Diamond v. Hodges, 58 S.W.2d 187 (Tex.Civ.App.--Dallas 1933, no writ) and Matter of Marriage of Rutherford, 573 S.W.2d 299 (Tex.Civ.App.--Amarillo 1978, no writ). In the instant case, appellee testified that the property involved was her homestead; that she had been late in making her payments (the record does not disclose with what frequency); that she believed the August 15, 1982 payment was mailed on August 26, 1982; that on August 26, 1982, she received a letter and Notice of Trustee's Sale from appellants' attorney. It is uncontroverted that appellants had accepted late payments in the past, and in addition to being required to give notice of intent to accelerate, he had waived his right to rely upon the appellee's waiver contained in the Deed of Trust.

Still another reason exists requiring the trial court's order to be affirmed. When the Notice of Trustee's Sale was forwarded to appellee, it was accompanied by a letter dated August 26, 1982, from appellants' attorney. This letter advised that the note had been accelerated and that no further partial payments would be accepted, and further stated, "you now must, in addition to the principal of $14,553.77 plus accrued interest and penalty, pay an amount equal to 10% thereof as attorney's fees for the collection of said Note." (Emphasis supplied.) A close examination of the note and Deed of Trust fails to disclose any provision for a penalty as demanded in the letter.

The consideration of this court is to determine whether the trial court abused its discretion in granting the temporary injunction which preserves the status quo until the controversy can be decided on its merits. We are required to view the evidence in the light most favorable to the trial court's judgment. Hartwell's Office World v. Systex Corp., 598 S.W.2d 636 (Tex.Civ.App.--Houston [14th Dist.] 1980, writ ref'd n.r.e.). The purpose of the law is to protect the rights of the parties, not to oppress and subject parties to unauthorized forfeitures. The trial court was amply justified in granting the temporary injunction; failure to do so would have been an abuse of discretion.

The order of the trial court is affirmed.

FENDER, C.J., and BURDOCK and SPURLOCK, JJ., concur.

JORDAN, J., dissents, joined by HUGHES, J.

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...