Hiller v. Prosper Tex., Inc., 15386
| Decision Date | 23 January 1969 |
| Docket Number | No. 15386,15386 |
| Citation | 437 S.W.2d 412 |
| Parties | J. J. HILLER, Trustee, Appellant, v. PROSPER TEX, INC., Appellee. . Houston (1st Dist.) |
| Court | Texas Court of Appeals |
Billy B. Goldberg, Houston, for appellant .
Frank B. McGregor, Dist. Atty., Hill County, Waco, for appellee.
This is an appeal from an order granting a temporary injunction which restrains appellant, Mr. Hiller, as trustee for Center Savings Association, from foreclosing under its deed of trust and from selling or attempting to sell three improved lots in Bellaire, Harris County, Texas. Appellant had posted notice of a sale to be held on July 2, 1968.
It is uncontroverted that: 1) Center Savings held a valid promissory note and payment of it was secured by a deed of trust covering the property in question, 2) before May, 1968, appellee had usually been late in making its monthly payments on the note, and Center Savings had accepted such late payments, often collecting a late charge of $27.06 per month and 3) on May 21, 1968, Center Savings sent appellee a notice that it must immediately remit the amount due, $478.06, which included the regular monthly payment of $451.00 plus late charge of $27.06.
Appellee's president, Mr. Crow, testified that he had 'made a tender of the May 1 payment about the first part of June,' but on cross-examination he admitted that he had never delivered any money. His undisputed testimony was that in early June, 1968, shortly after he had received the notice dated May 21, he tried without success to learn from Center Savings by telephone the amount it held in appellee's escrow account so that he could mail in a check to cover the May payment and could make the June payment out of the escrow account. He said that after the property had been posted for sale he went to Center Savings and told them he was going to send in the May payment and see if he could made the June payment out of the escrow account but was then told that he would have to pay the entire balance on the note.
Appellant's witness, the vice president and manager of Center Savings, testified that as of the end of 1967 Center Savings was holding $1,562.06 in appellee's escrow account after the year's-end payments of taxes and that by June 1, 1968 the balance in appellee's escrow account was more than $1,900.00.
Appellee's president, Crow, admitted he received a notice of foreclosure bearing the date of June 10, 1968; its contents are not in evidence.
The promissory note recites that its payment is secured by deed of trust executed to J. J. Hiller, Trustee, but neither the deed of trust nor its provisions are in evidence; nor are the provisions of the agreement under which the escrow account was operated.
There is nothing in the record indicating that the trial judge was requested to make findings of fact or conclusions of law or that any were made.
The note in question contains this provision:
'It is agreed that time is of the essence of this agreement, and that in the event of default in the payment of any installment of principal or interest when due, the holder of this note may declare the entirety of the note evidenced hereby, immediately due and payable without notice, and failure to exercise said option shall not constitute a waiver on part of the holder of the right to exercise the same at any other time.'
Further, the maker expressly waived demand, grace, notice, presentment for payment and protest.
The order appealed from recites that the trial court finds that the plaintiff (appellee) is entitled to a temporary injunction since it was lured into a false sense of security by Center Savings' acceptance of late monthly installment payments by charging $27.06 as a late charge each time the payment was as much as ten days late, and since Center Savings has waived its right to insist on strict payments according to the terms of the note and deed of trust; further that Prosper Tex, Inc. will probably suffer permanent and irreparable injury if the temporary injunction is not granted. In addition to requiring appellee, Prosper Tex, to provide a bond in the amount of $5,000.00, the court specified that Prosper Tex must: 1) pay into the registry of the court three monthly installments of $451.00 each to cover the payments that were due in May, June and July, 1968 plus $27.06 late charge for May, or a total sum of $1,380.06; 2) also pay into the registry $349.00 on principal and interest plus $102.00 for the escrow account, such $451.00 payment to be made on or before August 1, 1968, and a like amount on or before the first day of each succeeding month until further order of the court.
Appellant does not challenge the sufficiency of the evidence in support of the recital in the trial court's order that appellee...
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