Emfinger v. Pumpco, Inc., 09

• Decision Date: 11 April 1985
• Docket Number: No. 09,09
• Citation: 690 S.W.2d 88
• Parties: W.C. EMFINGER, Appellant, v. PUMPCO, INC., et al., Appellee. 84 274 CV.
• Court: Texas Court of Appeals

Page 88

690 S.W.2d 88

W.C. EMFINGER, Appellant, v. PUMPCO, INC., et al., Appellee.

No. 09 84 274 CV.

Court of Appeals of Texas Beaumont.

April 11, 1985.

Larry Hunter, Vidor, for appellant.

Michael D. Matthews, Beaumont, for appellee.

OPINION

BURGESS, Justice.

This is an appeal from the refusal of the trial court to issue a temporary injunction enjoining a non-judicial foreclosure sale. ¹ W.C. Emfinger purchased real property from Pumpco, Inc. Mr. Emfinger paid an amount down and executed a promissory note, payable in monthly installments, for the balance. He also executed a deed of trust securing the payment of the promissory note. Mr. Emfinger had been late on numerous payments and on one occasion had been more than sixty days late. Pumpco had accepted all the late payments, prior to November, 1983.

On November 7, 1983, the trustee for Pumpco mailed Mr. Emfinger a notice of trustee's sale advising him that the note payments for September 20, 1983 and October 20, 1983 were past due, that the maturity of the note had been accelerated and a trustee's sale would occur on December 6, 1983. This sale was passed by agreement of the parties. Mr. Emfinger filed suit requesting a temporary injunction. The trustee then posted notice that the trustee's sale would be held February 7, 1984. After a hearing, the trial court denied Mr. Emfinger's request for a temporary injunction.

The issue before us is whether the trial court erred in refusing to enjoin the foreclosure. Mr. Emfinger states that Pumpco was not entitled to accelerate the maturity of the note without giving the maker notice of intent to accelerate. His position is based upon the holdings in McGowan v. Pasol, 605 S.W.2d 728 (Tex.Civ.App.--Corpus Christi 1980, no writ), and Slivka v. Swiss Avenue Bank, 653 S.W.2d 939 (Tex.App.--Dallas 1983, no writ).

We believe Ogden v. Gilbraltar Savings Association, 640 S.W.2d 232 (Tex.1982) to be controlling in the instant case. Our Supreme Court stated:

Where the holder of a promissory note has the option to accelerate maturity of the note upon the maker's default, equity demands notice be given of the intent to exercise the option. [citation omitted] 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. [citation omitted] In the case of a mortgage secured by a deed of trust, such notice must afford an opportunity to cure the default and bring home to the mortgagor that failure to cure will result in acceleration of the note and foreclosure under the power of...