Real Estate Exchange, Inc. v. Bacci, 01-84-0248-CV
| Decision Date | 09 August 1984 |
| Docket Number | No. 01-84-0248-CV,01-84-0248-CV |
| Citation | 676 S.W.2d 440 |
| Parties | REAL ESTATE EXCHANGE, INC., et al., Appellants, v. Leonardo S. BACCI, et al, Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
James H. Leeland, Walsh, Squires & Tompkins, Houston, for appellants.
Greg Savage, Hoover, Cox & Shearer, Houston, for appellees.
Before EVANS, C.J., and WARREN and JACK SMITH, JJ.
This is an appeal from an order temporarily enjoining appellants from foreclosing its lien on an apartment complex in Harris County.We reverse.
In June 1980, appellees purchased an apartment complex in Harris County and as partial payment of brokerage fees due appellants, they executed a promissory note, secured by a deed of trust on the property.The promissory note was payable in monthly installments due on the first day of each month.
Appellees' payments on the note were seldom timely.In January 1984, the check for the monthly installment was returned due to insufficient funds.On February 3, 1984, appellants notified each of the appellees in writing that no future late payments would be accepted.When the March installment was not timely received, appellants contacted their lawyers and instructed them to institute foreclosure proceedings.On March 7, six days after the due date, appellants received a check for the March installment.On March 9, the check was returned with a letter notifying appellees that the note had been accelerated and that a foreclosure sale was pending.On March 12, appellants notified appellees of the time and place of the foreclosure sale scheduled for April 3, 1984.
Our question is whether appellants were under a legal duty to give notice of their intention to accelerate before actual acceleration or whether by the terms of the note appellees expressly waived the right to such notice.
Where the holder of a promissory note has the option to accelerate maturity of the note upon the maker's default, equity demands that notice be given of the intent to exercise the option.Thus, in 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.Ogden v. Gibraltar Savings Assn., 640 S.W.2d 232(Tex.1982).
However, if by the terms of the note the maker expressly waives the right to notice of acceleration, then such notice is unnecessary.Slivka v. Swiss Avenue Bank, 653 S.W.2d 939(Tex.App.--Dallas 1983, no writ);Valley v. Patterson, 614 S.W.2d...
To continue reading
Request your trial
-
Shumway v. Horizon Credit Corp.
...of acceleration", in just so many words, is effective to waive presentment and notice of acceleration. See, e.g., Real Estate Exchange, Inc v. Bacci, 676 S.W.2d 440, 441 (Tex.App.--Houston [1st Dist.] 1984, no writ) (holder "shall have the option without demand or notice to the maker ... to......
-
Savers Federal Sav. & Loan Ass'n v. Reetz
...intent to accelerate" (as well as "presentment for payment," etc.). See note 1, supra. Such waivers are valid. See Real Estate Exchange, Inc. v. Bacci, 676 S.W.2d 440, 441 (Tex.App.--Houston [1st Dist.] 1984 no writ). The notice and demand requirement exist "in the absence of a waiver." Ogd......
-
Shumway v. Horizon Creditcorp
...added.) Language to this effect is an express waiver of demand and notice of acceleration requirements. See Real Estate Exchange, Inc. v. Bacci, 676 S.W.2d 440, 441 (Tex.App.--Houston [1st Dist.] 1984, no writ); Slivka v. Swiss Ave. Bank, 653 S.W.2d 939 (Tex.App.--Dallas 1983, no writ); Val......
-
Stricklin v. Levine
...Antonio 1968, writ ref'd n.r.e.); Emfinger v. Pumpco, Inc., 690 S.W.2d 88, 89-90 (Tex.App.--Beaumont 1985, no writ); Real Estate Exchange, Inc. v. Bacci, 676 S.W.2d 440, 441 (Tex.App.--Houston [1st Dist.] 1984, no writ). In light of the waivers contained in the note and the deed of trust, n......