Slivka v. Swiss Ave. Bank

• Decision Date: 10 June 1983
• Docket Number: No. 05-83-00433-CV,05-83-00433-CV
• Citation: 653 S.W.2d 939
• Parties: Gene R. SLIVKA, Appellant, v. SWISS AVENUE BANK and Charles R. Cravens, Jr., Substitute Trustee, Appellees.
• Court: Texas Court of Appeals

Page 939

653 S.W.2d 939

Gene R. SLIVKA, Appellant, v.SWISS AVENUE BANK and Charles R. Cravens, Jr., SubstituteTrustee, Appellees.

No. 05-83-00433-CV.

Court of Appeals of Texas Dallas.

June 10, 1983.

Charles R. Cravens, Jr., R. Michael Farquhar, Johnson & Cravens, Dallas, for appellant.

John E. Rapier, Beecham, Brown, Longenecker, Rapier, Dallas, for appellees.

Before STOREY, WHITHAM and ROWE, JJ.

WHITHAM, Justice.

Appellant, Gene R. Slivka, appeals denial of a permanent injunction against appellees, Charles R. Cravens, Jr., substitute trustee, and Swiss Avenue Bank, to restrain and enjoin the Bank from foreclosing on two of his properties securing two loans.Slivka also appeals from a judgment against him and in favor of the Bank for attorney's fees under the two notes.We have previously issued writ of injunction enjoining the Bank and its trustee from disposing of the properties during the pendency of this appeal.We agree with the Bank that the trial court correctly denied permanent injunction.We agree with Slivka that the trial court erred in rendering judgment against him for attorney's fees.Accordingly, we affirm in part and reverse and render in part.

Slivka contends in his first three points that the trial court erred in holding (a) that he waived notice by the Bank of its intent to accelerate maturity of the two notes, that (b)he waived his right to notice of acceleration and (c) that notice of the trustee's sale was not required before the option to accelerate became effective.The applicable provisions of each note and deed of trust are identical.The notes provide:

Failure to pay any installment of principal or interest hereon when due, shall, at the option of the holder hereof, immediately mature this note and the indebtedness evidenced hereby as fully as if the entire time provided herein had expired; without demand, presentment and notice (the same being expressly waived and in the event default is made in the prompt payment of this note when due or declared due, and the same is placed in the hands of an attorney for collection, or suit is brought on same, or the same is collected through any judicial proceedings whatever, then the makers hereof agree and promise to pay ten per centum (10%) additional on the amount of the principal and interest then owing as attorney's fees.[emphasis added]

Paragraph 13 of the deed of trust provides:

If there is a default in any payment, or part thereof, under the Note, or if Grantors shall fail to keep or perform any of the covenants, conditions or stipulations herein, then the Note, together with all other sums secured hereby shall, at the option of the Noteholder, become at once due and payable without demand or notice other than that demand or notice provided for in this paragraph, and the Trustee when requested so to do by the Noteholder after such default, shall sell the Mortgaged Premises at public auction to the highest bidder for cash, between the hours of ten o'clock A.M. and four o'clock P.M. on the first Tuesday in any month, at the door of the Courthouse in the County in which the Mortgaged Premises, or any part thereof, are situated, after advertising the time, place, and terms of said sale and the Mortgaged Premises to be sold by posting, or causing to be posted, at least twenty-one (21) consecutive days prior to the date of said sale, written or printed notice thereof at the Courthouse door in each of the Counties in which the Mortgaged Premises are situated (such notice shall designate the County where the Mortgaged Premises will be sold).In addition, at least twenty-one (21) days preceding the date of sale written notice of the proposed sale shall be served by Certified Mail on each debtor obligated to pay such debt, according to the records of the Noteholder.[emphasis added]

Slivka points out that in the notes the words "without demand, presentment and notice" follow a semi-colon and that the parentheses open prior to the phrase "the same being expressly waived" but are never closed.Slivka argues that the "waiver" clearly relates to and modifies the provisions concerning attorney's fees and does not relate to words or terms of acceleration, i.e., "immediatley mature."Thus, Slivka would have us hold that the notes do not contain his agreement (a) to waive notice of the Bank's intent to accelerate maturity and (b) to waive his right to notice of acceleration.Slivka cites us to no authority and we decline to so hold.We conclude that the "waiver" provisions clearly relate to the words or terms of acceleration and not to the provisions concerning attorney's fees.We reach this conclusion because following the "waiver" provisions the note then proceeds to move on to a separate and distinct subject, i.e., attorney's fees, and makes clear that it is doing so by the phrase "and in the event default is made in the prompt payment...."We hold, therefore, that under the terms and provisions contained in the notes, Slivka agreed (a) to waive notice of the Bank's intent to accelerate maturity and (b) to waive his right to notice of acceleration.¹Since the notes were in evidence, we conclude that there was evidence, and legally sufficient evidence, of waiver.We hold, therefore, that in light of the express waiver in the notes that no notice of intent to accelerate was required, Valley v. Patterson, 614 S.W.2d 867, 872(Tex.Civ.App.--Corpus Christi 1981, no writ), and that no notice of acceleration was required, Burnett v. Manufacturer's Hanover Trust Co., 593 S.W.2d 755, 759(Tex.Civ.App.--Dallas1979, writ ref'd n.r.e.).

We now consider Slivka's contention that paragraph 13 of the deed of trust required notice of the trustee's sale before the option to accelerate became effective.Slivka finds this requirement in the language that "then the note ... shall at the option of the Noteholder, become at once due and payable without demand or notice other than the demand or notice provided for in this paragraph" and that "[i]n addition, at least twenty-one (21) days preceding the date of sale written notice of the proposed sale shall be served by Certified Mail on each debtor obligated to pay such debt, ...."Slivka argues that the first language excerpt requires no notice of acceleration other than as provided in paragraph 13, that paragraph 13 provides for notice of the trustee's sale and that, therefore, the notes cannot be accelerated until Slivka receives notice of the trustee's sale.Thus Slivka would have us hold that notice of sale has to be given prior to acceleration of the debt.We decline to do so.We conclude that the language of the deeds of trust reading "without demand or notice other than the demand or notice provided in this paragraph" simply identifies the one notice that is required under paragraph 13 of the deeds of trust in order to conduct the trustee's sale i.e., written notice of the trustee's sale at least twenty-one (21) days preceding the date of sale.Moreover, to hold as Slivka would have us do would prevent the trustee from noticing the sale because the debt was not matured and could not be matured until he noticed the sale.We decline to make such an illogical holding.We hold, therefore, that notice of trustee's sale was not required before the option to accelerate became effective.

Accordingly, we conclude that the trial court did not err in holding (a) that Slivka waived notice by the Bank of its intent to accelerate maturity of the two notes, that (b) Slivka waived his right to notice of acceleration and (c) that notice of trustee's sale was not required before the option to accelerate became effective.

In his fourth point Slivka contends that the trial court erred in holding that his late tender of the December 1982 payments was ineffective.Slivka argues that the payments were effective because...